Derived Works -- JFS, NUMA, RCU, Etc.

Perhaps the biggest problem for both IBM and the GNU/Linux community might be the inclusion of JFS, NUMA software, RCU, and other such technologies into the Linux kernel. It seems, all things considered, that IBM did contribute these technologies to the Linux kernel developers. And SCO claims that it controls them under its Unix license agreements with IBM.

SCO now owns the set of licenses and agreements under which IBM is authorized to use, develop, and sub-license Unix and its AIX Unix-based operating system. Unix-wise, SCO is the licensor (master) and IBM is the licensee (servant).

SCO's position is that under these licenses and agreements JFS, NUMA software, RCU, and other such packages are derived works and therefore subject to the Unix licenses and agreements under which IBM uses Unix. Thus under SCO's perspective, to the extent that IBM did contribute these packages and technologies to the Linux kernel developers, IBM violated the Unix license agreements and is subject to breach of contract claims, and to Unix license revocation.

On the other hand, JFS, NUMA software, RCU, and other such code might not meet the definition of derived works under the U.S. Copyright Act (17 U.S.C. 101, et. seq.) In part that is because it appears that these are not part of Unix, per se, but rather are IBM extensions to Unix, that might not be covered by the Unix copyrights.

If JFS, NUMA, RCU, and other such code in the Linux kernel does not meet the definition of derived works under the U.S. Copyright Act (17 U.S.C. 101, et. seq.), that means that SCO might not have any copyright infringement claims against Linux kernel and GNU/Linux operating system developers, Linux distribution providers, Linux users, and so forth -- at least insofar as JFS, NUMA, and RCU are involved.

The point here is that on the basis of the pleadings to date in the SCO v IBM lawsuit, it looks as though SCO could win the lawsuit as to proving that IBM did substantial wrong by disclosing the JFS, NUMA, RCU, and other such code and technologies to the Linux kernel developers or to some IHV developers. However, that does not necessarily mean that SCO can win a copyright infringement suit against Linux kernel and GNU/Linux operating system developers, GNU/Linux distribution providers, GNU/Linux users, and so forth.

Moreover, SCO now has conceded that it does not own nor claim copyrights for JFS, NUMA, RCU, and other such code developed by IBM and contributed by IBM to the Linux kernel

Please remember that the SCO-Caldera v IBM lawsuit is not about copyright infringement under the U.S. Copyright Act, per se. It is not about the Linux kernel or GNU/Linux operating system, per se. The SCO v IBM lawsuit is about whether IBM breached its Unix license agreements with SCO.

However, in order to show that IBM did breach the Unix license agreements SCO needs to prove that the Unix extensions that IBM contributed to the Linux kernel developers (JFS, RCU, NUMA software, and so forth) are copyrighted by SCO or otherwise part of the Unix Software Product that IBM licenses from SCO.

SCO's admissions to MozillaQuest Magazine Thursday that it does not own nor claim copyrights for JFS, NUMA, RCU, and other such code developed by IBM and contributed by IBM to the Linux kernel takes the copyright element out of the SCO-Caldera v IBM lawsuit dispute. That means that SCO must now proceed solely on the theory that this code is part of the Unix Software Product that IBM licenses from SCO in order to prove breach of contract by IBM.

The addition of claims and allegations relating to JFS, NUMA software, RCU, and so forth are added to the original Complaint, inter alia, in paragraphs 108 and 109, which are part of Count I. Breach of IBM Software Agreement in the Amended Complaint. In the original Complaint, Count I was Misappropriation of Trade Secrets--Utah Code Ann. §13-24-1 et seq.

108. IBM has breached §2.05 of the Software Agreement by, inter alia, actively promoting and allowing use of the [Unix] Software Products and development methods related thereto in an open and hostile attempt to destroy the entire economic value of the Software Products and plaintiff's rights to protect the proprietary nature of the Software Products. By way of example and not limitation, IBM has used protected UNIX methods for others in accelerating development of the 2.4.x kernel and 2.5.x Linux kernel in, among others, the following areas: (a) scalability improvements, (b) performance measurement and improvements, (c) serviceability and error logging improvements, (d) NUMA scheduler and other scheduler improvements, (e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File System, (g) enterprise volume management system to other Linux components, (h) clusters and cluster installation, including distributed lock manager and other lock management technologies, (i) threading, (j) general systems management functions, and (k) other areas. But for the use by IBM of these protected UNIX methods in Linux development, the Linux 2.4.x kernel and 2.5.x kernel capacity to perform high-end enterprise computing functions would be severely limited. (Amended Complaint)

109. IBM agreed in §7.10 of the Software Agreement to the following restrictions on transfer of the Software Product, including AIX as a derivative work of UNIX System V:

[N]othing in this Agreement grants to Licensee the right to sell, lease or otherwise transfer or dispose of a Software Product in whole or in part. (Amended Complaint)

However, Tom Carey does not believe that JFS, NUMA software, and RCU, are derivative works or that they come under the Unix Software Product restrictions.

I doubt that JFS, NUMA RCU and such other packages are derivative works of UNIX. They are not a recast version of UNIX; they are programs that have use when linked to UNIX. They are more appropriately classified as separate works. The question is, who owns the copyright in those works? The answer is likely to be found in the contracts between IBM and AT&T, and IBM and SCO. (Tom Carey)

IBM's Trink Guarino answers the question of who IBM says owns the JFS, NUMA software, and RCU copyrights.

First, Trink Guarino, Director of IBM Media Relations told MozillaQuest Magazine Monday:

SCO has not shown us any code contributed to Linux by IBM that violates SCO copyrights. SCO needs to openly show the Linux community any copyrighted Unix Code, which they claim is in Linux. (Trink Guarino)

Trink Guarino is correct in criticizing SCO and McBride for not supporting its allegations with any facts. Additionally, IBM is willing and able to support its position. Tuesday, Trink Guarino added this statement in our discussions:

IBM owns the copyrights for the work we've done in AIX, JFS, RCU and the code that takes advantage of NUMA hardware. AIX is the fastest growing UNIX operating system in the industry, and we intend to continue and accelerate that growth. (Trink Guarino)

That pretty much takes the wind out of SCO and McBride's sails as to its threats against GNU/Linux users -- and to their allegations that IBM misappropriated SCO-owned Unix code by contributing JFS, RCU, and NUMA software code to the Linux kernel. However, if SCO can convince the SCO v IBM Court that this code is part of the Unix Software Product, then SCO could prevail on its breact of contract claims.

There is a clarification that needs to be made here. AIX is a combination of SCO's Unix System V code and IBM-developed code. IBM is not claiming to own the Unix System V code included in AIX, IBM's adaptation of Unix. IBM is laying claim only to the AIX code that IBM developed. But that is all that IBM needs to do to set material facts of the lawsuit in dispute in order to defeat any SCO attempt to obtain a summary judgment.

Moreover, if IBM can convince a jury that it owns the AIX, JFS, RCU, and NUMA software code that IBM developed, that likely defeats most if not all of SCO's lawsuit claims. While not directly part of the SCO-Caldera v IBM lawsuit, such a jury decision in the SCO-Caldera v IBM lawsuit likely also would kill dead the SCO-McBride claims that the Linux kernel infringes on SCO-owned Unix copyrights.

The New Set of Claims in the Amended Complaint

In the original Complaint, SCO-Caldera specifies four counts, also known as causes of action:

• Count I. Misappropriation of Trade Secrets--Utah Code Ann. §13-24-1 et seq.
• Count II. Unfair Competition
• Count III. Interference with Contract
• Count IV. Breach of Contract

In the Amended Complaint SCO sets forth six counts:

• Count I. Breach of IBM Software Agreement
• Count II. Breach of IBM Sublicensing Agreement
• Count III. Breach of Sequent Software Agreement
• Count IV. Unfair Competition
• Count V. Interference with Contract
• Count VI. Misappropriation of Trade Secrets--Utah Code Ann. §13-24-1 et seq.

In effect, SCO has moved the Breach of Contract count to the first count position in its Amended Complaint. Then in effect, SCO has expanded the Breach of Contract count to three counts, Breach of IBM Software Agreement, Breach of IBM Sublicensing Agreement, and Breach of Sequent Software Agreement.

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip