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.