SCO, IBM Court Battles Over Unix IP Continue

In a series of hearings, IBM and SCO continue to clash over who should be required to provide information, and SCO renews its claims that IBM placed SCO's Unix code within Linux.

The wheels of justice continue to grind slowly in the legal battles between SCO and IBM over the Unix intellectual property used in open-source Linux. Now in its second year, the case is being heard in the U.S. District Court in Salt Lake City.

The SCO Group Inc. and IBM this week clashed over a range of issues, including SCOs demands for the files of 3,000 individuals who contributed to the AIX and Dynix Unix operating systems; and a new angle on SCOs claims that IBM unfairly took the Unix System V Release 4 code and placed it in Linux.

In the discovery matter, Judge Brooke Wells retracted her earlier decision that 3,000 developers needed to turn over programmers notes, design documents and white papers as well as the comments and notes made those who made changes in AIX and Dynix. Now, only 100 people must turn over these documents.

Despite the reduction, SCO officials said the company was pleased with the ruling.

"The Courts decision should ensure that IBM now complies with its discovery obligations and will provide SCO with information important to the development of its case for trial. We look forward to presenting our case to a jury next year," SCO spokesperson Marc Modersitzki said.

The new bone of contention concerns code developed for Project Monterey, a deal between SCO and IBM—with Intels support—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. The result would have been a single product line supporting systems ranging from entry-level servers to large enterprise environments.

SCO claims that this code was placed in IBMs AIX 5L. As a result of this, SCO is trying to get the courts to amend its case for the third time.

In a separate hearing, SCO argued that IBM CEO Samuel Palmisano should appear before the court. According to SCO, Palmisano oversaw IBMs transition from Project Monterey and Unix to support for Linux with SCO code gained from Monterey.

Several attorneys questioned SCOs tactic of forcing Palmisano to the stand.

Stephen Fronk, an IP attorney with Howard Rice Nemerovski Canady Falk & Rabkin in San Francisco, said the apparent goal of SCOs motion is to gather evidence to establish this alleged IBM mission.

"Ultimately, the question is not one of IBMs intent, but rather one of IBMs actions," Fronk said. "To date, SCO still has been unable to point to any Unix source code in Linux, let alone any in Linux as a result of IBMs actions."

/zimages/1/28571.gifClick here to read more about whether SCOs case against IBM lacks evidence.

"If IBM did not, in fact, disclose Unix source code in violation of the terms of its license agreement with AT&T, no amount of evidence of intent to do so from the likes of Mr. Palmisano or any other IBM executive will enable SCO to prevail in its claim," Fronk said.

Specifically, SCO now wants to change its case to reflect the claim that with IBMs migration from Project Monterey, 200,000 lines of SCOs copyrighted Unix code ended up in Linux.

"One of the claims asserted by SCO is that IBM disclosed portions of the Unix source code to Linux developers to further IBMs corporate mission to destroy IBMs Unix competitors," Fronk said.

"In SCOs version of the facts, IBM, which had ten times more service-related personnel than its largest competitor, sought to dominate the corporate enterprise computing market by moving that market away from a model based on the collection of hefty fees for enterprise licenses of proprietary versions of Unix to a model based on the collection of hefty fees for the provision of services for a free software product, namely Linux," he said.

In a September 2003 interview with Ziff Davis Internet News, Ransom Love, CEO of SCO and Caldera Systems, offered a view on the last days of Project Monterey. He said that SCO and IBM were working on moving a "combined Unix and Linux to a 64-bit platform."

/zimages/1/28571.gifIf SCO collapses, what will it mean for the industry? Read Steven J. Vaughan-Nichols commentary here.

Even before the deal was made that brought Caldera Inc., a Linux company, and SCO together, Caldera was planning on merging the best features of both of SCOs Unix products, UnixWare and OpenServer, with Calderas Linux.

Soon after Caldera acquired SCO in August 2000, however, IBM declared that Project Monterey was complete and that AIX 5L was the result.

At the time, Love said that IBMs announcement wasnt "appropriate," given the pairs partnership agreements. Still, he agreed that many of Montereys goals had been completed and that that the "Linuxication" of Monterey AIX 5L was a good thing for both AIX and Linux users.

Love told Ziff Davis Internet News, "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, 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," Love said.

This, Love said, is the real disagreement between SCO and IBM. IBM had the right under its contract to end the Monterey partnership if SCO, as it did when Caldera bought it, changed ownership. But Love indicated that IBM had assured Caldera that it would not close down Monterey.

The courts are expected to make a decision on these matters in the next few weeks. An actual trial on the substantive issues of the case isnt expected until late this year or early 2006.

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