The hearing resulted in a ruling favorable to IBM, granting two motions to compel discovery. IBM had asked SCO several questions, the thrust of which were to find out what exactly SCO claimed that IBM had done to violate SCO's intellectual property, and thus on what basis they were suing IBM. Since the beginning of this debacle, SCO has claimed that they knew of ".. millions of lines of code" that IBM had wrongfully donated to Linux. They also said, on more than one occasion, that they would show their evidence in court. Contrary to those statements, SCO had been dragging its feet in producing answers to IBM's questions. Their main complaint was that they hadn't gotten the anwers to their questions from IBM. These, they claimed, would allow them to tell IBM exactly what it had done wrong. Aside from the rather interesting implication that SCO didn't know what IBM had done, the complaint flew in the face of case law stating that the defendant in an action has the right to see evidence a plantiff might have first.
The ruling gives SCO thirty days from next Wednesday to produce answers and documents demanded by IBM, without benefit of IBM's documents to manufacture claims from . This means that in thirty days from next Wednesday, we will know whether SCO has evidence, and therefore a case that can be tried, or if the whole edifice of their claims against IBM and Linux will crumble into dust. Although we outsiders probably won't get to see all of what SCO produces (there's a protective order in force) it should be fascinating to see what eventuates.
I have an overactive imagination, plus SCO's behavior in this case is so contradictory, that I wouldn't be surprised with either of the two outcomes. On the face of the matter, it sure sounds like SCO as been running a unabashed con game to keep its stock price up and attract investors. On the other hand, the history of Unix is ridiculously complicated. Who exactly copied this into that under a set of licenses and side agreements with four successive owners of the code is a tangle that Gordius of Phrygia would have been quite satisfied with. From Friday's hearing for instance, it appears that SCO is focussing on Sequent, which developed some of the technology they have been telling all comers (but not the court!) is at issue in the case:
IBM had a special license, but Sequent had a standard license. There was a scope clause in the license limiting what you could use the software for. You could use it and modify it, provided it was treated as part of the original software product. -Kevin McBride, SCO attorney, quoted on Groklaw
"And our license scope says the following: You have to use it [Unix source code] for internal business purposes only. You can't let others use it for their benefit."
"... and in the Unix agreement that was licensed to everybody else, although IBM had its own deal a little different, but Sequent has (sic) the standard agreement.." -Kevin McBride, SCO attorney, Court Transcript, December 5th, 2003
IBM bought Sequent in 1999. It has emerged that IBM had side agreements with AT&T that allowed them greater freedom with "derivative works." According to US Code Title 17, Chapter 1, Sec. 101:
A ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''.
Sequent had a "standard license agreement," i.e., one that did not allow freedom with derivative works. So, if SCO is really going to focus on Sequent's contributions in this case, at least two questions occur to me. First, what is IBM's liability for the actions of Sequent if the contributions occurred prior to IBM's acquisition? Second, the code SCO may or may not point to in their response next month seems to be wholly original. Theres not much in the original System V code base that is a precedent for NUMA (Non-Uniform Memory Access) for instance. NUMA is an essential enabling technology to run large numbers of processors in the same machine. Sequent's NUMA was targeted at Unix, and Windows NT
Sequent's NUMA technologies are unique. Using NUMA, Sequent systems can run up to 64 Intel processors in one system. Sequent plans to expand this number to 256 processors in the near future. Sequent customers can even run NT on one set of processors and run UNIX on the other processors in the same Sequent system and manage both OSs from a central location.-Article in SQL Server magazine, July 13, 1999So, are Sequent's contributions "derivative works" of System V?
I'm sure I don't know. I'm also sure I don't know if it matters. SCO's case could collapse next month. I'd be gratified by that outcome, but I'm not holding my breath.
Posted by hbo at December 6, 2003 11:01 PM