(Tom Carey Interview Continued)

- MozillaQuest Magazine: This seems to be a particularly tricky issue. Suppose that SCO gets these extensions as "Software Product" under the Unix license, and thus these extensions come under the umbrella of licensing and confidentiality protections under the Unix license agreements. There is nothing that assigns copyright or patent interests to SCO.

- Thomas C. Carey: Technically, that is correct. But SCO could get a court order requiring IBM to sign the assignments of copyright and patent rights (if any). And if the license agreement works in SCO's favor, it would succeed in obtaining such an order.

-- MozillaQuest Magazine: Even without any express language in the agreements that SCO gets the copyrights and patents?

-- Thomas C. Carey: Yes, because we are now assuming that the situation is controlled by language saying that SCO "owns" the modifications. I would think that ownership includes copyright and any patent rights. Of course, there is no agreement on the table that says that SCO owns IBM modifications. The 1985 agreement (as modified by the 1985 Side Letter) says that IBM keeps what it writes.

-- MozillaQuest Magazine: And of course, I presume here you mean that would be the case if indeed these Unix extensions, JFS, NUMA software, RCU, and so forth are "derivative works".

IBM Free to Release Its Own Code to Linux Community

-- Thomas C. Carey: Yes. Even if they are derivative works, the 1985 Side Letter says, if IBM wrote them, IBM owns them. To quote: "Regarding section 2.01, we agree that modifications and derivative works prepared by [IBM] are owned by [IBM]. However, ownership of any portion or portions of the SOFTWARE PRODUCTS included in any such modification or derivative work remains with us." So if the now-famous 80 lines of code were part of the UNIX code that was licensed by AT&T to IBM, AT&T still owns them, and they must be removed from Linux (unless they are also licensable from a third party, such as the University of California). If IBM wrote them using proper procedures , they belong to IBM, which was free to release them to Linux, regardless of whether they are classified as "derivative" or not. The 1985 Side Letter makes no practical distinction between derivative works or modifications. (Emphasis added.)

-- MozillaQuest Magazine: However, under the Copyright Act does not the author of the derived work get the copyright to the derived stuff while the author of the original work keeps his/her copyright to the original work? Thus a third party would need to get permission from both the original work author and the derivative work author in order to copy, distribute, etc. the derivative work?

-- Thomas C. Carey: The 1985 Side Letter constitutes such permission, assuming that it controls the code in question. Put another way, the 1985 Side Letter says that IBM owns what it writes, whether you call it a derivative work or an independent work. One of the benefits of ownership is the right to give your property away. IBM can't give away code that SCO made available to it, but it can give away its own work. The 1985 Side Letter makes that explicit.

--- MozillaQuest Magazine: So, as long as the work, whether called derivative or independent contains only 100% IBM code, licensing or giving that code away is 100% within IBM's rights to so do. However, if that so-called derivative work or independent work contains both IBM code and SCO-Novell-ATT code, then such a block of code requires that both IBM and SCO license it or give it away in order for a third party to use that code?

--- Thomas C. Carey: That is correct.

- MozillaQuest Magazine: Could this produce an anomaly where IBM owns the copyright and patent interests in these derivative works and extensions yet IBM is subject to the Unix license agreements for them anyway? [Please see the Hypotheticals Note in the sidebar.]

Thomas C. Carey: This is unlikely. But it is possible that either party may have written code that infringes on the patent rights of the other party. If IBM owns patents that cover the functions served by the disputed code, then IBM is in the driver's seat. It is relatively easy to code around copyrighted software. Patent protection is much more of a challenge. In that case, SCO might have a hard time selling UNIX without a license from IBM. [Emphasis Added.]

Summary and Conclusions

So far, there are pros and cons to both IBM's and SCO's positions. This SCO-Caldera v IBM lawsuit is far from a slam-dunk for either side.

GNU/Linux end-user liability is not directly part of the SCO-Caldera v IBM lawsuit. However, many issues that must be resolved by the SCO-Caldera v IBM Court likely will have significant impact on GNU/Linux end-users. For example, as Tom Carey points out GNU/Linux end-users could be third-party beneficiaries of the 1985 Side Letter should SCO-Caldera try to sue GNU/Linux end-users because of any inclusion of IBM-developed code in the GNU/Linux operating system.

Lots depends on what IBM says in its upcoming answer to SCO-Caldera's Amended Complaint. Incidentally, as of 1 August 2003, IBM has not filed an answer to SCO's Amended Complaint -- regardless of what some writers are reporting in other publications. On 1 August, both Brent Hatch, attorney for SCO, and IBM spokesperson Trink Guarino told MozillaQuest Magazine that IBM has not as of 1 August 2003 filed an answer to SCO's Amended Complaint.

Also, Brent Hatch clarified some misinformation that we had picked up from SCO. We had been told back in June by SCO that SCO had filed an Amended Complaint. Also, SCO posted that Amended Complaint on its Web site and noted it as having been filed on 16 June 2003. Up to now, we have reflected that information in our SCO v IBM coverage.

However, in our 1 August discussion, Brent Hatch told MozillaQuest Magazine that SCO filed a motion for leave to file an amended complaint on 16 June.

SCO's Amended Complaint was attached to SCO's memorandum of law in support of its motion to amend as an exhibit. So, in a non-technical sense, SCO's Amended Complaint was filed on 16 June 2003, albeit as an exhibit to the motion to amend law memo.

The Court then granted that motion on 10 July 2003 and SCO filed its Amended Complaint on 22 July.

The principal technical difference between the Amended Complaint being included with the law memo, and therefore filed in that non-technical sense, and the Court approved filing on 22 July 2003 is that IBM was not required to file a response to SCO's Amended Complaint until such time as the Amended Complaint was technically filed, on 22 July 2003.

In an e-mail discussion MozillaQuest Magazine asked Brent Hatch: By when is IBM required to file a reply to SCO's Amended Complaint?

Brent Hatch replied: the Amended Complaint . . . was served by hand delivery on July 22, 2003. Therefore IBM's answer is due Monday August 11, 2003 (They get 20 days to respond . . .).

According to the Court's docket sheet entries, here are the pertinent filings and dates:

But don't jump to any conclusions, yet. There is more to come in Part 3, including:

• Potential Impact of Undisclosed Agreements -- Project Monterey
• Can SCO Terminate IBM's Irrevocable Unix License?
• Could SCO Take a Summary Judgment Against IBM?

plus of course our own summary and conclusions drawn from the interview.

Stay tuned.

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