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Editor's Note:
In a companion article, Is IBM's Irrevocable Unix License Revocable?, we looked at the SCO-Caldera v IBM lawsuit pretty much taking the allegations of SCO-Caldera's Amended
Complaint as true. Just as that article was on its way to layout, we received the e-mail from SCO's Blake Stowell agreeing that SCO does not own the copyrights to the IBM-developed code IBM contributed to the Linux kernel. The discussions in this article were conducted and the article originally was written prior to SCO's admissions that it does not own copyrights to the IBM-developed code. There has been some minor updating to try to reflect SCO's admissions. Nevertheless, most of this discussion is not affected by SCO's admissions. However, where this article might be inconsistent with those SCO admissions please adjust your reading of those parts of the article to take into account the SCO admissions. Additionally, some of the pre-admission copyright-related discussion is informative in that is shows in part why SCO had to admit it does not own copyrights to the IBM-developed code.
Please see our article, SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights, for the latest updates about that code and how it applies to the SCO v IBM lawsuit.
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SCO-Caldera v. IBM:
SCO Clears Linux Kernel but Implicates Red Hat and SuSE
IBM Files Answer to SCO's Caldera v IBM Complaint
IBM Response to SCO-Caldera Complaint Is Outrageous!
SCO-Caldera & the GNU/Linux Community:
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Recapping from Part 1
The SCO-Caldera v IBM lawsuit now pretty much boils down to a dispute over whether the IBM-developed AIX, JFS, RCU, and NUMA software code IBM contributed to the Linux kernel is derivative work and thus comes under the Unix Software Product umbrella. In part that is because SCO-Caldera (SCOX) recently admitted that it does not own the copyrights to the IBM-developed AIX, JFS, RCU, and NUMA software code in the Linux kernel and the GNU/Linux operating system.
The Unix Software Product umbrella is important because any code, methods, secrets, and so forth that fall under that Unix Software Product umbrella are subject to the Unix System V license. Please remember that this SCO-Caldera v IBM lawsuit is not about copyright or patent infringement, per se. It is about IBM allegedly violating the Unix System V license agreements and other related contracts.
The importance of derivative work is not merely a matter of semantics. If the code IBM contributed to the Linux kernel is derivative work and thus comes under the Unix Software Product umbrella, then the Unix license prohibits IBM from disclosing that code and the related methods, secrets, and know-how to third parties.
However, there are some amendments and side letters to the basic IBM Unix license that might remove such restrictions on IBM-developed code, even if it is derivative work. More about that in the Tom Carey interview further on in this article.
Simply put, If the computer code, methods, secrets, and so forth that IBM contributed to the Linux kernel or Linux distribution providers comes under the Unix Software Product umbrella, SCO-Caldera wins and IBM loses. If it does not then IBM wins and SCO-Caldera loses.
For a more non-legalese background and discussion of this, please read Part 1 of this article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD? Part I: Overview and Prologue.
Thomas C. Carey is a programmer turned lawyer and now is a partner at Bromberg & Sunstein. He chairs the firm's Business Practice Group. His law practice includes licensing and transferring software, technology and other knowledge-based content, and lots more.
We discussed SCO's Amended Complaint and related issues with him via e-mail while our article about that was in development. The original plan was to include Tom Carey's comments in that article.
However, that article already had grown too large before his comments were added. Moreover, the interesting and insightful Tom Carey interview is well worthy of being an article in itself.
The discussions with Tom Carey get somewhat technical, legal, and complex. Nevertheless, the Tom Carey discussions provide some unique and well-thought insights and perspectives to the SCO-Caldera intellectual property (IP) issues and the SCO v IBM lawsuit.
These perspectives are based upon currently, publicly available, information. However, as Tom Carey notes several times in the discussion, there appears to be at least some, if not lots of, as yet undisclosed information that is relevant to the SCO v IBM lawsuit and to the SCO v Linux issues. The as-yet-undisclosed Project Monterey (a joint IBM and SCO endeavor involving Unix development) agreements and documents likely could have much bearing on the SCO v IBM lawsuit and perhaps even the SCO v Linux issues too.
In short, the gist of Tom Carey's perspectives is that likely IBM owns the code for the controversial Unix extensions that SCO would like to call derivative works. These Unix extensions, JFS (Journaling File System), NUMA (Non-uniform Memory Access) software, RCU (Read, Copy, and Update), and so forth, were developed by IBM and Sequent, which now is owned by IBM. Moreover, Tom Carey's position is that IBM was free to contribute the JFS, NUMA, and RCU code to the Linux kernel developers.
Tom Carey has analyzed SCO's legal claims that JFS, NUMA, RCU, and other such extensions to Unix are derivative works -- based upon publicly available information. He concludes that these IBM-developed and Sequent-developed extensions to Unix are not derivative works.
However, code developed by Sequent prior to its acquisition by IBM could turn out to be an Achilles' heel for IBM in its fracas with SCO-Caldera. More about that further along in this article.
