SCO-IBM Wars Take New Turn

By Steven Vaughan-Nichols  |  Posted 2004-08-06

SCO-IBM Wars Take New Turn

According to a Forbes report, SCO has uncovered IBM e-mail discussions revealing that IBM was improperly using SCO Unix (SVR4) System V Release 4 code in its AIX 5L operating system on the Power architecture. SCO will neither confirm nor deny this report, but sources close to the Lindon, Utah, Unix company indicate that the Forbes report is essentially accurate.

This new take on SCO Unix code being used illegally within AIX is a tangent from The SCO Group Inc.s claims that IBM had taken Unix source code and placed it in Linux.

Michael R. Graham, intellectual property attorney and partner with Chicago-based law firm Marshall, Gerstein & Borun LLP, said the claim gives IBM something new to worry about.

"SCOs allegations that IBM has incorporated unlicensed SVR4 code into its Unix-based AIX 5L operating system software for its PowerPC opens an entirely new avenue of concern for IBM," Graham said.

"These allegations do not directly impact SCOs original complaint that IBM incorporated Unix code into its modifications of Linux. However, if proven, they could throw a shadow over IBMs claims of innocence, providing evidence which SCO would argue demonstrates that IBM plays fast and loose with code it licenses."

Specifically, SCO is alleged to have discovered that IBM hasnt had a proper license for AIX since 2001 and that IBM has known this for years. Further, SCO claims that IBM only had the right to use SVR4 Unix code on an Intel-based operating system, but deliberately decided to use this source code anyway in its Power-based AIX 5L Unix.

According to sources, SCO has not yet decided whether to pursue this as a separate case or incorporate this matter into its current IBM litigation. SCO had already terminated IBMs Unix license on June 16, 2003.

This means, in theory, that IBM can no longer distribute AIX. In practice, IBM had continued to develop and distribute AIX 5L, its proprietary, Power-based Unix.

IBM did not return calls on this latest turn. IBMs last word on the subject, in its June 2003 statement, was, "IBMs Unix license is irrevocable, perpetual and fully paid up. It cannot be terminated. IBM will defend itself vigorously."

The legal war between SCO and IBM began in March 2003 when SCO objected to plans by IBM to donate AIX code to Linux. The roots of this objection sprang from the Unix SVR4 code-sharing IBM and SCO had engaged in while working together on Project Monterey.

Next page: From Monterey to AIX 5L.

From Monterey to AIX

5L"> Project Monterey was a deal between SCO and IBM, with Intels support, to develop a version of Unix that could run on systems based on Intels IA-32 and IA-64 architectures as well as IBMs Power4 processor. The result was to have been a single Unix supporting systems ranging from entry-level servers to large enterprise environments.

According to Ransom Love, then CEO of Caldera (the company which subsequently became The SCO Group), in a September 2003 interview, "We were really excited about Monterey as the next product step for Caldera/SCO. With it, we would move a combined Unix and Linux to a 64-bit platform. We were counting on it, and senior IBM executives had assured us that they wanted Monterey."

Then, according to Love, "IBM decided to name it AIX 5L [on August 22, 2000, 20 days after Caldera had bought SCO], and they wouldnt release [Monterey] on Intel. That became a real problem for us. SCO had depended entirely on Monterey on IA-64 for the future of our Unix and Linux product lines. IBM did offer some payment for our development troubles, but it was insufficient."

While these talks were going on, SCO/Caldera supported AIX 5L until at least May 15, 2001, when in eSTREET, then a partner publication from Caldera/SCO, it was announced that "a technology preview of AIX(R) 5L, a 64-bit UNIX operating system for Intel Itanium processors" was now available.

It was also already known, in all of the companies involved, that at least two features from SCOs UnixWare Unix operating system—the /proc file system and the System V printing system—were in place in AIX 5L on the Power processor.

At the time, SCO and IBM were, according to Love, still trying to work out a deal. When those talks became futile, Love, who didnt believe that taking IBM to court was the right road for SCO to take, elected not to sue IBM. Current SCO CEO, Darl McBride, has taken the litigation road.

McBride did this, he said in an April interview, because "IBM had told Caldera right before the deal closed that were going to keep supporting Monterey. Afterward, the IBM guy who told us [that IBM was no longer supporting Monterey] said, Sue us."

In an interview at SCO Forum in Las Vegas, McBride said, "We just want our business back. Were not after the Linux community, what were really after is IBM. Our concerns and our problems are directly related to IBM, and theres this indirect effect that touches Linux."

This is a return to SCOs original position. In March 2003, McBride said, "This case is not about the Linux community or us going after them. This is not about the open-source community or about UnitedLinux, of whom we are members and partners. This case is and is only about IBM and the contractual violations that we are alleging IBM has made and that we are going to enforce."

Since then, however, SCO fanned the flames of Linux supporters with such comments as, "The very DNA of Linux is coming from Unix"; and that the GPL (GNU General Public License), which Linux is licensed under, violates the U.S. Constitution and U.S. copyright and patent laws.

And SCOs lawsuits against AutoZone Inc. and DaimlerChrysler were presented as being related to these companies use of Linux.

Click here to read about SCOs troubles with backer BayStar Capital.

Now, though, sources close to SCO, while not going as far as in some reports that SCO wont launch any more lawsuits, say, "Well use our legal resources to focus on our three outstanding suits [AutoZone, IBM and Novell] and let those set a precedent on how we might proceed on future litigation."

Graham said he isnt sure that SCO "claims to have found smoking gun e-mail messages in which IBM employees acknowledge that IBM was using SVR4 on PowerPC-based systems without a proper license. … Are they smoking guns or only starters pistols?"

He also wonders whether this announcement may be yet another maneuver by SCO to avoid having the weakness of its original case (i.e., that it has yet to identify specific code in the IBM Linux which it alleges to have been derived from Unix) exposed."

But Graham doesnt think were any closer to the end of the SCO-IBM-Linux wars. "Contrary to recent murmurs that SCO may be tiring of the reversals of fortune its litigation with IBM and Novell has recently faced, SCO is in this litigation for the long run. It also means, however, that any quick resolution remains far off."

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