SCO Memos Could Provide Little Smoke

By Steven Vaughan-Nichols  |  Posted 2005-07-15

SCO Memos Could Provide Little Smoke

A recently unsealed e-mail in the SCO vs. IBM case reveals that a 1999 study of Linux code by a SCO-employed consultant found no Unix code in the operating system.

The SCO Group Inc. is suing IBM because the Lindon, Utah-based company claims that are both contractual problems with Project Monterey—a deal between SCO and IBM to develop an enterprise Unix that could run on systems based on Intels IA-32 and IA-64 architectures as well as IBMs Power4 processor—and that IBM moved SCOs Unix System V Release 4 IP (intellectual property) to Linux.

In the Aug. 13, 2002, e-mail (here in PDF form) to SCOs senior VP of international operations, Reg Broughton, SCO developer Michael Davidson reported that an SCO-sponsored study had found that "at the end, we had found absolutely *nothing*. i.e. no evidence of any copyright infringement whatsoever."

While "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 at SCO, Davidson wrote the lxrun utility, which enabled users to run ELF-based (executable and linking format) Linux on SCOs Unix operating systems, OpenServer and UnixWare, and Sun Microsystems Inc.s Solaris on Intel.

Davidson, himself, believed even before the study was commissioned that "(based on very detailed knowledge of our own source code and a reasonably broad exposure to Linux and other open source projects) that it was a waste of time and that we were not going to find anything."

Nevertheless, according to Davidson, "The project was a result of SCOs executive management refusing to believe that it was possible for Linux and much of the GNU software to have come into existence without *someone* *somewhere* having copied pieces of proprietary UNIX source code to which SCO owned the copyright. The hope was that we would find a smoking gun somewhere in code that was being used by Red Hat and/or the other Linux companies that would give us some leverage."

Going on, Davidson wrote, "Here was, at one stage, the idea that we would sell licenses to corporate customers who were using Linux as a kind of "insurance policy" in case it turned out that they were using code which infringed our copyright."

Next Page: SCOsource.


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.

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