It got me thinking. In one of his inspiring communications with the press, Darl McBride relates how people told him that he couldn't pursue his litigation strategy because it would anger the Linux community. His reply was something like "do I report to the Linux community?" I tend to believe that the substance of this anecdote is true, whether Darl actually said it or not. An executive, or certainly a developer at a Linux company would probably worry about the Linux community, given that the FOSS process is cooperative, and the anger of the community you are basing your business on is a force to be reckoned with. But Darl had a bolder plan than merely trying to leverage that cooperative effort into a growing business. Caldera had already failed trying that, had it not? No, Darl was going to make money the old-fashioned way, by parisitically sucking it out of competitors and customers, without providing a shred of value in return.
I've been around the tech industry for a few years. I've watched Microsoft start to pay for its short-sighted pursuit of market dominance to the exclusion of all else, The irony is that they left out stuff that might have helped them stay dominant, such as secure architectures and efficient code. I've watched an industry quail in fear at Microsoft's actions, and I've seen the resentment that caused contribute to the rise of Linux in the enterprise. I sense some of the same arrogance, ignorance and greed in the new SCO, particularly in the pronouncements of its president and CEO. But the pronouncement that really rings true for me is one from a far wiser head:
"People pay for what they do, and still more, for what they have allowed themselves to become. And they pay for it simply: by the lives they lead." - James Baldwin
SCO cannot harm Linux. The engine of its success is the idealism of its community. That idealism is not unalloyed, but it is real. If every business currently using Linux stopped tomorrow, Linux would survive the withdrawal of all those resources. Linux, and the larger communities of Free Software and Open Source Software would retain the twin advantages of unquenchable energy and enormous leverage. I and many others would have to find new jobs, but we'd manage.
No, the ideas that are at risk here are the ones Darl McBride and his fellow travellers hold so dear. That you can make money as a parasite. That central control and planning are the only way to go. That you can wring water from the stone of twenty year old code. These dinosaurs are the ones truly endangered here.
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.