By Steven Vaughan-Nichols  |  Posted 2005-07-15 Print this article Print

In February 2003, SCO announced its SCOsource licensing initiative. This program is designed to gain revenue from companies that were either using SCOs Unix IP or were concerned that they might be using operating systems—like Linux—that infringed on SCOs IP. While SCOsource had two major successes early on—with Microsoft and Sun—since then it has had minimal impact on SCOs bottom line.
In SCOs last quarter, SCOsource only contributed $70,000 of gross revenue.
The study itself that Davidson was reporting on was written by Robert Swartz. Swartz was the former head of an SCO competitor, MWC (Mark Williams Company), which folded in 1995. MWC produced Coherent, a Unix for Intel that contested the PC Unix market with SCO Xenix in the late 80s to the mid-90s. Swartz wrote his report, here in PDF form, for Steve Sabbath, Santa Cruz Operations Inc.s VP of law and corporate affairs. This was before Caldera acquired Santa Cruz Operations and subsequently changed its name to The SCO Group. In the second draft of his report dated Oct. 4, 1999, provided by SCO, Swartz reported that, after a study of Red Hat Linux 5.2 and SCOs various Unix operating systems, as a "preliminary conclusion" … "many portions of Linux were clearly written with access to a copy of Unix sources." However, Swartz went on, "It is possible that some of the code came from Berkeley or other third party. It is also possible that the code is exempted by the BSDI/Berkeley settlement." In 2002, Davidson, in his summary of the study, wrote, "There is, indeed, a lot of code that is common between UNIX and Linux (all of the X Windows system, for example) but invariably it turned out that the common code was something that both we (SCO) and the Linux community had obtained (legitimately) from some third party." While some observers, like Pamela Jones of Groklaw, see Davidsons e-mail, showing that SCO knew there was no Unix code in Linux, SCO claims that the note is being taken out of context. "This memo shows that Mr. Davidsons e-mail is referring to an investigation limited to literal copying, which is not the standard for copyright violations, and which can be avoided by deliberate obfuscation, as the memo itself points out," said Blake Stowell, SCOs PR director. "Even more importantly, this memo shows that there are problems with Linux. It also notes that additional investigation is required to locate all of the problems, which SCO has been continuing in discovery in the IBM and AutoZone cases." "Thus, even aside from the fact that SCOs central contract claims in the IBM litigation involve later Linux versions and different conduct, it would simply be inaccurate—and misleading—to use Mr. Davidsons e-mail to suggest that SCOs internal investigation revealed no problems," said Stowell. Which is it? Proof that SCO has no proof or an e-mail being taken out of context? Thomas Carey, chairman of the business practice group at Boston-based law firm, Bromberg & Sunstein LLP, sees it as being somewhere in the middle. "The e-mail is embarrassing, but not necessarily fatal. If another study turned up strong evidence of infringement, the fact that the Michael Davidson study did not would be irrelevant," said Carey. "Furthermore, SCO is claiming something more subtle than literal infringement," Carey continued. SCOs "2d Amended Complaint takes the position that AIX [the IBM Unix for Power] is a derivative work, and that therefore any contributions of AIX to Linux are improper. Chris Sontags [SCO Senior VP] declaration of 4-19-04, in its 7th paragraph, refers to non-literal copying (i.e., structures, sequences and organization of UNIX System V that appear in Linux). Whether one program is a derivative work of another, or involves copying of the structure, sequence and organization of another, is a question that involves reflection and judgment, not just rote comparison." "Nonetheless, the e-mail is very strongly worded and will be used to build the case that SCO has acted in bad faith. This may be relevant to a claim that IBM may make to be reimbursed for its attorneys fees," Carey said. Check out eWEEK.coms for the latest open-source news, reviews and analysis.

Steven J. Vaughan-Nichols is editor at large for Ziff Davis Enterprise. Prior to becoming a technology journalist, Vaughan-Nichols worked at NASA and the Department of Defense on numerous major technological projects. Since then, he's focused on covering the technology and business issues that make a real difference to the people in the industry.

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