SCO Group Monday followed through on its challenge to
IBM , announcing that it has terminated Big Blue’s right to
use or distribute any product based on Unix System V source code, including
the AIX operating system, due to an alleged contract violation.
“The Software and Sublicensing Agreements and related agreements that SCO
has with IBM includes clear provisions that deal with the protection of
source code, derivative works and methods,” said Mark J. Heise, Boies
Schiller, & Flexner, LLP. “Through contributing AIX source code to Linux
and using Unix methods to accelerate and improve Linux as a free operating
system, with the resulting destruction of Unix, IBM has clearly
demonstrated its misuse of Unix source code and has violated the terms of
its contract with SCO. SCO has the right to terminate IBM’s right to use
and distribute AIX. Today AIX is an unauthorized derivative of the UNIX
System V operating system source code and its users are, as of this date,
using AIX without a valid basis to do so.”
SCO also said it is filing an amendment to its $1 billion
lawsuit against IBM, calling for a permanent injunction which would
require Big Blue to “cease and desist all use and distribution of AIX and
to destroy or return all copies of Unix System V source code.” The
amendment adds a request for additional damages to the suit based on IBM’s
“multi-billion dollar AIX-related business.”
“The damages that we’re requesting of the court are equal to all of the AIX-related business that IBM would realize following Friday the 13th of June,” SCO spokesman Blake Stowell told internetnews.com. Stowell said that SCO is basing its rquest on industry figures in its position which show IBM’s AIX business “anywhere from as low as $30 billion to as high as $50 billion.”
“IBM has chosen to continue the actions that violate our source code and
distribution agreements,” said Darl McBride, president and CEO of SCO.
“Over the last several months, SCO has taken all of the steps outlined in
the Unix licensing agreements to protect its rights. Today SCO is
requesting that the court enforce its rights with a permanent injunction.
IBM no longer has the authority to sell or distribute AIX and customers no
longer have the right to use AIX software.”
IBM spokeswoman Trink Guarino fired back, “SCO continues to make claims, and as we have said all along, our license is irrevocable, perpetual and cannot be terminated.”
SCO said it sent a letter to IBM Chairman and CEO Sam Palmisano on March 6,
warning
him that IBM had allegedly breached its contract with SCO by contributing
portions of its Unix-based AIX code to the open source movement, and by
introducing
concepts from Project Monterey, a joint effort by SCO and IBM to develop a
64-bit Unix-based operating system for Intel-based processing platforms,
into Linux. IBM scrapped Project Monterey in May 2001.
With the letter sent, SCO initiated a 100-day clock, after which it said it
has the right to revoke IBM’s Unix license, which IBM entered into with
then Unix source code owner AT&T in February 1985. That clock ran out
at midnight Friday.
In the letter sent to Palmisano, SCO spelled out the steps that it required
IBM to make to allow it to keep its Unix license and keep selling the AIX
operating system.
“SCO is also demanding that IBM cease these anti-competitive practices
based on specific requirements sent in a notification letter to IBM,” SCO
said in a statement on March 7, the day it filed a $1
billion lawsuit against IBM for “misappropriation of trade secrets,
tortious interference, unfair competition and breach of contract.”
“They need to correct the actions they’ve been taking with regard to our
Unix source code and that’s ultimately what we want,” SCO’s Stowell said Thursday with regard to SCO’s
resolution terms.
However, while SCO has terminated IBM’s license, the company said AIX
customers are safe for the moment.
“While revoking of that license would make [IBM’s]
customers’ licenses obsolete, at this point in time we’ve elected not to
take that approach with customers,” Stowell said. “That’s not to
say we won’t at some
point. But we see the customer as an innocent bystander right now.”
He added, “What we would encourage AIX customers to do right now is make
IBM assure them that they’ll do everything they can to try and bring this
to full resolution. I think that IBM needs to indemnify their customers and
right now I don’t see how they can do that.”
In a research note based on a meeting with Bill Zeitler, IBM senior vice
president and group executive of the Systems Group, Deutsche Bank
Securities analyst George Elling said Zeitler defended IBM’s case against
SCO by noting Big Blue’s 700 existing or pending patents related to AIX.
“Regarding Linux and open source software, Mr. Zeitler made it clear that
he believes vendor strategies to lock customers in to a proprietary
environment will fail,” Elling wrote in his note. “He believes customers
are now looking for choice in their operating environments and that they
are very careful not to get locked in to any one vendor.”
That may have been a subtle jab at SCO, which, though it has only accused
IBM of misappropriation of trade secrets, has made no bones about its
stance that “Linux is an unauthorized derivative of Unix and that legal
liability for the use of Linux may extend to commercial users.”
It sent a letter
to that effect to some 1,350 that use Linux, warning them, “similar to
analogous efforts underway in the music industry, we are prepared to take
all actions necessary to stop the ongoing violation of our intellectual
property or other rights.”
Legal and open source experts have suggested that SCO may have some trouble pressing its claims on that front,
especially in light of its own sales of Linux. The company also faced a
challenge from Novell , which acquired Unix from AT&T in
1993 and later sold it to SCO in 1995. Novell claimed
it had retained the Unix copyrights and patents when it sold Unix to SCO.
That made SCO’s ability to press claims about copyright infringement
questionable.
However, Novell later backed away from that stance after SCO uncovered
an amendment to the 1995 SCO-Novell Asset Purchase Agreement.
“To Novell’s knowledge, this amendment is not present in Novell’s files,”
Novell said in a statement. “The amendment appears to support SCO’s claim
that ownership of certain copyrights for Unix did transfer to SCO in 1996.
The amendment does not address ownership of patents, however, which clearly
remain with Novell.”
Still, Novell reiterated its request that SCO either prove its allegations
that Linux improperly includes Unix code, or retract the statement.
“Absent such action, it will be apparent to all that SCO’s true intent is
to sow fear, uncertainty, and doubt about Linux in order to extort payments
from Linux distributors and users,” Jack L. Messman, chairman, president
and CEO of Novell, wrote to SCO President and CEO Darl McBride in an open
letter on May 28.
SCO has begun showing code to certain select experts and analysts under
non-disclosure agreements. Stowell said it is showing different instances
to everyone, and at least one instance has been 80 lines of code.
