What Goes Around Comes Around - The Only Clear Winner in This SCO Versus IBM Case is Microsoft

Ashton was a macaw that lived in the lunch room at George Tate's software company, Ashton-Tate, home of dBase II, the first successful microcomputer database. There is a lot about that long-gone company that was unusual. There was the macaw, of course, which was named for the company, not the other way around. There was George Tate, himself, who died at his desk when he was only 40, but still managed to get married two weeks later (by proxy -- please explain that one to me). And later there was Ashton-Tate's copyright infringement lawsuit against Fox Software that pretty much destroyed the company when it became clear that Ashton-Tate didn't really own its database. NASA did, which meant that Fox had as much right to dBase as did Ashton-Tate. All this came to mind this week while I was thinking (still thinking -- this story seems to never end) about the SCO versus IBM lawsuit over bits of UNIX inside Linux. There is a lot SCO could learn from the experience of Ashton-Tate.

Those who have stuck with this saga recall that I earlier wondered whether SCO put those bits of UNIX System V into Linux themselves, whether they were scavenged from BSD UNIX into both System V and Linux, or whether the problem lay behind Door Number Three.

Door Number Three it is! According to some of those who have had a look at the offending code, it DID come from IBM after all. There are reportedly many lines of identical code, and at least some of the Linux code even carries an IBM copyright notice. Well, this is a surprise to me and a delight at SCO headquarters in Utah, I'm sure, but I'll bet my house that SCO does not prevail and here's why.

According to Laura Didio of the Yankee Group, "[SCO's] claims are not limited to just one area of the Unix System V kernel. SCO claims there are multiple instances of copyright violations. SCO said these include: NUMA (Non Uniform Memory access) a mechanism for enabling large multiprocessing systems, RCU (Read Copy Update) (and) SMP. All of the aforementioned functions represent high end enterprise performance and scalability functionality portions of the code."

And all those parts appear to have come originally from Sequent Computer Systems, now owned by IBM. RCU was implemented in Sequent's DYNIX/ptx, a legally-licensed derivative of System V, in 1994 for SMPs and in 1996 for NUMAs. The RCU code inside the Linux version 2.2 kernel even includes the name of Paul McKenney, who was a major contributor to both the DYNIX and Linux versions. The same guy wrote both pieces of code and probably did do some cutting and pasting between them. To SCO, this is the smoking gun that makes IBM viable for treble damages because SCO's UNIX licenses cover derivative works. That means if I have a System V source code license and I change that code, any changes I make live under the original UNIX copyright.

So that makes IBM guilty, right? Wrong.

If we go back to the Sequent RCU research papers published about this work, we'll see they are very carefully written to present a general way of solving this problem on almost any multi-threaded operating system. It is a general solution. In the key paper, the first mention of some version of UNIX doesn't come until page five under the "implementation" section. They did this work -- work that was supported by a variety of federal grants and involving more companies than just Sequent -- to develop a concept that they then implemented on UNIX.

Now let's think about the UNIX license and how it concerns intellectual property claims. I am not a lawyer, but unfortunately, I have been involved in several copyright and trademark cases, and believe I know the law in this area. SCO looks inside the System V source code and finds this implementation. They look in the Linux source code and find a similar or identical implementation. Sure enough, both can be traced to the same programmer at Sequent, which is now owned by IBM. And SCO, as the UNIX IP enforcer, owns the license for all derivative works -- all derivative UNIX works. David Boies sees this as his smoking gun and he's going to use it. But David Boies is not an IP lawyer by trade. This is key.

The IBM lawyers (who ARE IP lawyers) will strongly argue that none of this matters since we have a case of a single person who did two very similar implementations based on his earlier research. Both his UNIX and Linux versions (works B and C) were derived from his original research (work A) which was not exclusively limited to UNIX. His paper shows that was the case and while SCO may see it as the smoking gun, IBM will see it as the proof of innocence.

What SCO owns (forgetting for the moment Novell's contrary ownership claim and perhaps AT&T's) is the copyright on this particular work as applied to UNIX. But Linux is not UNIX, so applying the same ideas -- even the same code if it comes originally from an upstream source -- is not necessarily copyright infringement.

Say I write a new high-level programming language, then do nearly identical implementations of that language for UNIX and Linux and the UNIX version is made part of some official UNIX distribution. Does that mean the Linux version violates the UNIX copyright? No. But I wrote both versions and the code is identical. Surely that is a copyright violation? No. This isn't a matter of clean rooms and virgins and reverse engineering, it is a matter of precedence and authorship. Sequent (now IBM) did not give up all its rights to the code when it was made part of UNIX. They were very careful to plan it that way.

IBM has the largest legal department of any company in the world. They are INCREDIBLY sensitive about IP ownership, which produces for them more than $1.5 billion per year in license fees. They have embraced the GPL very carefully for their Linux work. The very fact that this code was released under the GPL indicates it was vetted and found acceptable by the IBM legal department. It's not like sometimes they don't bother to go through this procedure.

The upshot is that I believe David Boies will put on a very good show, but that the case will be thrown out on its merits.

And while this is happening, a whole lot of damage will have been done to vendors and customers alike, with only one party benefiting from the drama -- Microsoft.

SCO is effectively trying to destroy both the UNIX and Linux markets. This makes no sense, but that is the logical result of their current efforts. The idea that 1,500 of America's largest companies will be forced to drop Linux and will do so in favor of SCO's UNIXware is ludicrous. Why would those companies spend big bucks buying licenses from SCO -- a company they are upset with -- when they can comply just as easily, and almost for free, by converting to one of the BSD variants? Only Microsoft has had success bullying customers into buying its operating systems and SCO is definitely not Microsoft. This behavior won't sell any software.

Meanwhile, Oracle is trying to destroy PeopleSoft, one of the most successful application development companies around. PeopleSoft's Customer Relationship Management (CRM) software is at the heart of many of the biggest Oracle databases. Oracle, thinking it is reaching for growth in a flat market, actually runs a terrible risk of infuriating its biggest and most important customers.

Microsoft is smart and quick. They are no doubt angling to take advantage of this new chaos in the software industry. If history repeats, Microsoft will make very good business decisions. Everyone else will make very poor, if not stupid business decisions. The result will be that Windows will be stronger, and Microsoft's own CRM products, acquired when it bought Navision (the Danish CRM company), will gain a foothold in the market against PeopleSoft and Oracle. A year from now, Microsoft will be a vastly more powerful business even than it is today, which is saying something.

Where is IBM in all this? If IBM were smart, they would be beating a path to J.D. Edwards, PeopleSoft, and SAP's doorsteps. They would be making those companies sweetheart deals to support and resell IBM's Websphere development environment and DB2 database, grabbing some market share from Oracle. IBM should be helping PeopleSoft hold Oracle at bay, making it worthwhile for customers to move their PeopleSoft and SAP applications from Oracle to DB2. But this is very unlikely to happen.

Unfortunately, it would take IBM months to recognize such a golden opportunity and more months to approve a plan. Probably every IBMer who sells or supports products in this "space" (IBMspeak) understands the situation. But when your leadership is too unaware and too lethargic, well opportunities are missed.

Which brings us back to Ashton the macaw. When Ashton-Tate sued Fox Software for copyright infringement in 1988, the suit was eventually thrown out because Ashton-Tate was shown to have made false statements in its original copyright application for dBase II.

The company claimed that it "owned" the source code underlying dBase II -- code drawn from a database called Vulcan that was developed by Wayne Ratliff at NASA's Jet Propulsion Laboratory. Vulcan was a Z-80 assembler version of JPLDIS, a mainframe database program written at the lab by Jeb Long and others. Long later joined Ashton-Tate and was responsible for leading development of dBase III and IV. Where Ashton-Tate apparently made its mistake was in forgetting that buying the marketing rights to Vulcan from Ratliff didn't invalidate the intellectual property rights of Ratliff's employer, JPL.

Think about it. Ashton-Tate's claim on dBase was, in many ways, similar to SCO's current claim on derivative UNIX works. They both ignored upstream property rights of others. What is ironic about this is that Fox Software wasn't the only company sued by Ashton-Tate for this supposed copyright violation. Fox's co-defendant was SCO. And having been on the other side of such a similar case, they should know better.

please keep it up.

Not a problem. I love FR, and my favorite thing about it is that we have subject matter experts here on practically everything. People come in here and post silly conspiracies about airline crashes, and some Freeper will jump in and say, "I fly those things for United Airlines, and that's crap." The next guy comes in with his hysterical drug rant, and we get, "I not only play a doctor on the Internet, I am one, and you're full of it... and here's why."

I love it when that happens, because there are many subjects that I could get BS'ed about.

Economics and the computer business are not among them, so it's my turn to play Batman when the BS'ers come in on those things. You can repay me when some clown comes in to BS us about your field.

Remember the guy who claimed he was in the Army in Germany? He had a bunch of people fooled for a long time. So did the woman who had 'toured Viet Nam with Bob Hope.' Most of us don't go into these threads expecting ax grinders and con artists... everybody gets the benefit of the doubt until the Crap Quotient just gets too high to ignore. That happened a lot more quickly with this guy than most. In fact I don't recall ever seeing an act quite like this, on any subject. There's no alternate body of competing theory here, like we might see from a liberal disruptor or even a conspiracy theorist. This is pure rhetoric, pure venom, spewing at random, with no attempt at consistency or factual content of any kind. It is distilled disruption. The question is why. It's obviously not politics.

I see the community is unfortunately alive and well. They apparently find it easy to ignore articles such as this one from yesterday at CNet:

Open source's moment of truth
By Richard Wilder
June 24, 2003, 4:00 AM PT

Over the past several years, corporate America has warmed to open-source software programs such as the Linux operating system and the Apache Web server.
Today, software from the open-source community, a worldwide group of developers who share their code freely with one another, competes head-to-head with programs from industry titans such as Microsoft and Sun Microsystems.

However, a legal battle between the Utah-based SCO Group and IBM could throw cold water on the relationship.

SCO is suing IBM for billions of dollars claiming that Big Blue took code from SCO's Unix operating system and added it to Linux. SCO has since revoked IBM's license to use its AIX version of Unix and requested that the judge permanently halt IBM's entire Unix business. Unfortunately for those watching the case, the facts are extremely complex and SCO has been tight-lipped about its evidence. The result is that analysts have pronounced the case everything from the the end of Linux to a complete farce.

Regardless of the case's outcome, however, the specter of liability has already been raised among the notoriously risk-averse ranks of corporate information officers. Already, industry analysts from Gartner have advised corporations to reconsider implementing Linux, especially on "mission critical" systems. In addition, SCO ensured that at least 1,500 of the world's top corporations were aware of the potential risks of using Linux when it sent them letters threatening direct legal action.

This tactic may seem strange to people who aren't lawyers--how could 1,500 companies infringe property rights they did not know existed when they bought their software? U.S. copyright and patent laws do not include an absolute protection against "innocent infringement" of such rights, although damages may be reduced for acts performed before you have notice of the rights. Once on notice, however, "innocent" purchasers are liable for damages and subject to an injunction if they continue to use or sell copies of the software. For customers and technology partners, this adds an additional element of risk to using open-source software and including such software in their own products.

Even if IBM prevails in this case, lingering doubts about future licensing problems could hinder further adoption of open-source software. Corporate IT spending is just beginning to stir after two years of deep sleep, but corporations will be wary of any risky IT investments, especially those that could also bring new legal risks. The open-source community must face these fears directly if it wishes to continue building their relationship with corporate America.

The specter of liability has already been raised among the notoriously risk-averse ranks of corporate information officers.
First, open-source distributors and integrators should "trust but verify" the origins and IP rights of the code within their products. Many organizations and companies developing open-source software already have methods to check the contributions to their code--that is, who owns what.

Some open-source software projects require contributors to provide legal documentation of ownership in the code they submit and use digital signatures to authenticate those submissions. These types of measures should continue to be improved and be implemented more broadly within the open-source community.

Another confidence-building step would be for the distributors or developers of open-source software to move away from offering their products "as is" and find ways to indemnify customers from any liability for intellectual property infringement. Some in the community might suggest that this step is too radical and that it runs counter to their ideals. However, by not offering at least some degree of comfort to their customers through indemnification, they risk ceding an important market advantage to those proprietary software companies that do.

Beyond the end users, the open-source community should look for ways to build trust among potential technology partners. Today's world of networked software requires interoperability and sharing. The open-source and proprietary communities can maintain their separate worldviews but, as they are interdependent, must find a way to communicate.

Even if IBM prevails in this case, lingering doubts about future licensing problems could hinder further adoption of open-source software.
For its part, the open-source community has to at least understand the vocabulary of the "IP conversation" that occurs among business partners that simultaneously compete and cooperate. Such a conversation allows such partners to efficiently communicate ownership interests in existing products and work constructively on new ones.

While I am optimistic that these adjustments can be made, it may expand the growing rift between those who see open source as a moral, if not religious movement, and those who see commercial opportunity in this alternative development model. For example, the Free Software Foundation believes that no piece of software should ever be "owned." It is clear that IBM, Red Hat and others that are interested in developing sustainable open-software-based businesses must find ways to coexist with proprietary software.

However, it is unclear to me how the corporate community can continue to work with those who reject the entire principle of software ownership and simultaneously protect their investment in their own products.

The open-source community has been an important force for competition and innovation for the information technology industry. Hopefully, it can learn from past and present experiences, including the SCO lawsuit, to improve its intellectual property practices and to mature as a critical part of the industry.

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