SuSE Denies SCO-McBride's Claims
We asked SuSE Vice President for Corporate Communications Joe Eckert about SCO's re-bushed claims yesterday.
MozillaQuest Magazine: According to today's press conference SuSE Linux now infringes upon SCO's registered copyrights. Is that true?
Joe Eckert: No.
MozillaQuest Magazine: Are the copyrights for JFS, NUMA, and RCU in SuSE Linux subject to the Unix copyrights that SCO has registered?
Joe Eckert: Not that we are aware of.
MozillaQuest Magazine: According to today's press conference SuSE Linux now infringes upon SCO's registered copyrights. Is that true?
Joe Eckert: Well -- SCO first has to show us what the copyright is.
In many ways this last statement from Joe Eckert sums up the flim-flams and scams that SCO and McBride have been pulling since SCO filed its Caldera v IBM lawsuit in March. The SCO-McBride pattern is to make broad vague statements to the effect that IBM has "misappropriated" SCO-owned Unix code or that "Linux" contains SCO-owned Unix code. However, the supporting details and evidence are not provided. Could it be that the details and evidence do not support the SCO-McBride naked claims?
Early on MozillaQuest Magazine challenged SCO and McBride to show the code in Linux that SCO and McBride claim are SCO-owned Unix code. They finally caved in. But the best they could do was to show only 80 lines of identical Unix and Linux kernel code. However, the Linux kernel code SCO used for the comparison was from an IHV (independent hardware vendor) rather than code from kernel.org -- the official Linux kernel code. Moreover, until last week, SCO had not registered any Unix source code copyrights.
Derived Works -- JFS, NUMA Software, 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. It also 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.
SCO now owns the set of licenses and agreements under which IBM is authorized to use and to develop and to 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 IBM-developed 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. Thus, IBM is subject to breach of contract, 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.). And they might not come under the purview of IBM's Unix Licenses.
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, RCU, and the like are involved.
We discuss the derived works issues in two articles that have been in development for some time and should already have been published. We will try to get them published today and tomorrow. The conclusion you likely will reach after reading these two articles is that SCO-Caldera does not have any rights to JFS, NUMA, and RCU.
In our (upcoming shortly) article, SCO-Caldera v IBM Complaint Changed Dramatically, we look at the SCO-Caldera v IBM lawsuit pretty much taking the allegations of SCO-Caldera's Amended Complaint as true. Then in our (upcoming shortly) article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?, we look at some of the holes in SCO-Caldera's claims.
If SCO-Caldera can make its copyright and derived works claims stick that would mean that anyone using Linux kernel 2.4 or later is using it without proper authorization to do so, unless the user has a license from SCO to do so. If so, and if you are one of these people or entities, you might find yourself on the receiving end of a SCO lawsuit -- except perhaps for some very interesting language in Amendment X. More about that in our (upcoming) article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?,
If this shoe fits, you ought to check with your regular lawyer and also with a competent intellectual property (IP) attorney. And you might want to ask your attorney if you should find another operating system or cave into SCO's extortion demands. However --
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.
In a very interesting, June 2003, discussion about SCO's Amended Complaint, Tom Carey says that he does not believe that JFS, NUMA, RCU, and such are derivative works or that they come under the Unix License 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.
