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

PBS ^ | JUNE 19, 2003 | Robert X. Cringely

[Ernest_at_the_Beach]

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.  

[Nick Danger]

These are two different companies? I thought they reincorporated in a different state.

The original "Santa Cruz Operation" that sold XENIX and which bought UNIX from Novell is still in Santa Cruz, CA but now it's called Tarantella.

That company sold their Operating Systems Division (UNIXware, the UNIX IP, and [apparently] the 'SCO' name) to Caldera Systems, Inc. in 2001.

Caldera Systems was founded in 1994 by ex-Novell CEO Ray Noorda. It has always been in Utah. Until recently, its main business was as a linux distributor. Now calling itself "The SCO Group," it is engaged in the manufacture and sale of lawsuits based on antique intellectual property. It acquired the rights to the old Digital Research DR-DOS and sued Microsoft with that, netting some secret number that is believed to be well over $100 million, probably more than Digital Research ever made on it. They blew through that wad, and now they are using the old AT&T UNIX to sue IBM. I believe the company also owns the right to GEM, the windowing interface used on the mid-1980's Atari "ST" machines. Perhaps a lawsuit against Sony or Nintendo will be its next product.

[Golden Eagle]

At his best, a lawyer merely convinces the state to steal something back for the rightful owner.

Again, someone who simply does not understand the simple concept of property ownership.

[gitmo]

Digital Research had some pretty decent products. Their QA left something to be desired, but they were pushing the envelope in their day.

[drlevy88]

Yellow Bird (up high in banana tree) sez: Thieves are infinitely more damaging to society than lawyers, whether you understand that concept or not.

Consider the magnifying effect that crafty lawyering can have through the creation of precedent. If a thief robs me of my wallet, only I am out the wallet. If a lawyer manipulates a legal system, the whole nation is out some measure of justice.

[Golden Eagle]

Most precidents have long been contested, and corrected if needed by higher courts. Your argument was essentially an apples to oranges comparison based on scale. I could easily counter it with another apples to oranges argument, but hopefully you see the actual original point instead:

Thieves are inherrently evil. They serve no useful purpose, ever. Lawyers, though certianly not all trustworthy, serve a common purpose. Like defending the Constitution, at times.

Perhaps you're one that sees no usefulness in that, which I probably can't help.

[Charles H. (The_r0nin)]

I understand property ownership just fine. And I also understand the movement by powerful lobbies to invent new property "rights" (like intellectual property, etc.) to maintain an income stream without having to remain innovative. Go shill somewhere else, because you are way too obvious here...

[Nick Danger]

Go shill somewhere else, because you are way too obvious here...

The shilling is obvious, the question is for whom? We know who the major supplier of discussion-forum FUD is, but this appears to be something else. Today I found on the web a leaked Microsoft internal memo from late 2002 discussing the effectiveness of various FUD tactics. They had conducted a telephone survey of "developers, IT and non-IT BDMs, IT Pros and Issue Elites." ("BDM" stands for 'Business Decision Maker')

Here is one of their conclusions:

Messages that criticize OSS, Linux, & the GPL are NOT effective. Messaging that discusses possible Linux patent violations, pings the OSS development process for lacking accountability, attempts to call out the 'viral' aspect of the GPL, and the like are only marginally effective in driving unfavorable opinions around OSS, Linux, and the GPL, and in some cases backfire.

The memo goes on to say...

In the short term, then, Microsoft should avoid criticizing OSS and Linux directly, continue to develop and aim to eventually win the TCO [Total Cost of Ownership -- ND] argument, and focus on delivering positive Shared Source messages that contain transparent, audience specific proof points.

This guy is not a Microsoft Munchkin. He's something else. Are there Sun Munchkins? I've never heard of that, but anything is possible.

[Golden Eagle]

PI Danger is still stumped on the case. Problem being, his conspiritorial mind is out of control, and he can't recognize Gold Eagle for what he is: An American patriot who is pure of heart, and incredibly commited to what is right.

I really don't see how anything I have said could have convinced anyone of anything else. And what really bothers him is how while I have shown these traits to be my strengths, for him they have been shown to be his weaknesses.

[Nick Danger]

Didja see where IBM announced today that they have scored six new Linux wins in Europe? All government agencies, too, in Belgium, Finland, Spain, even France and Germany.

The Spaniards bought a zSeries box. The smallest one of those weighs over 2,000 pounds, with a price to match. The Finns bought two of 'em.

They sold the Germans 128 eServer xSeries machines running Red Hat Linux.

Final score: IBM +millions, The Yurps -millions, Linus Torvalds 0. Now you just keep tellin' people how bad this linux stuff is for America.

[Golden Eagle]

My preference would be IBM AIX, with a legal license.

I see you're coming around to my way of thinking. I hope we can become friends, one day through this.

[MrNatural]

...Gold Eagle .. is .. An American patriot who is pure of heart, and incredibly commited to what is right.

There are people like this, but they never say so themselves. Never.

This statement alone brands him as a phoney.

[Golden Eagle]

There are people like this, but they never say so themselves. Never.

We're having to, more and more with the deterioration of society progressing faster and faster. Yes, we are finally speaking out, showing ourselves on the street, as a matter of fact, I have stood on the street with freepers and bullhorns, and never felt more like I described - pure of heart, and incredibly commited to what is right. But if you are on the Linux side of this issue, there's little valor to be had.

[MrNatural]

I don't believe I was speaking to you.

[Golden Eagle]

I know, because all you ever offer is potshots from afar, that have no validity in any of the ongoing discussions.

[InfraRed]

Mr. Wilder's opinion is somewhat lengthier than my own, but that may be due to the fact that I'll not be pasting word-for-word repetitions of subliminal messages into mine.

Based on what I've seen of the patent, patches, published books, and kernel mailing lists, I believe that IBM's legal team might very well deflate SCO's ego in spectacular fashion. Maybe I've missed something, maybe I haven't. We shall see.

As a red-blooded American capitalist, I will graciously acknowledge and support SCO's rights -- if and when their claims are proven. Nothing has been proven yet, but you're not about to let that little detail hinder a good FUD fest, are you?

Do you honestly believe that closed source could never be polluted by stolen code? Do you believe that users of closed source products are somehow exempt from laws which could potentially affect open source users? Maybe you believe that users of closed source are safer because any potential theft would be hidden from prying eyes? I believe that users of open source are safer precisely because the code is exposed for the world to see, and any stolen code is more likely to be quickly located and replaced. Open source generally has multiple code branches to fall back on should one branch be lost for any reason. How many redundant code branches do you believe closed source vendors have at their disposal?

This case could very well spawn an effect which is the exact opposite of that sought by the plaintiffs. The credibility aspect of this case could explode in the faces of those that are prematurely celebrating the downfall of Linux.

The publicity from this case might, instead, open even more eyes to the high-end power made cost effective by OSS development. Many "Decision Makers" have been led to believe that Linux is a cheap toy, unworthy of their high standards and large budgets. This case might offer the DMs with a much clearer grasp of reality.

I believe the publicity from this case is also likely to demonstrate the resiliency of OSS to the most potent legal-wrangling/propaganda that money could buy. Even if SCO is proven correct, there is no doubt that teams of developers will rapidly replace any code necessary to bring Linux into compliance with the law. Regardless of this case's outcome, OSS is not going away, and it will continue to push the industry into the future. That which doesn't kill you, makes you stronger.

On the other hand, if IBM emerges victorious, many Decision Makers will have to ask themselves why SCO felt so threatened by Linux that such a potentially suicidal maneuver was necessary.

You believe SCO is correct, and that IBM is a thief. This much is obvious to anyone that has watched your antics around here lately. Will you come to the defense of IBM and Linux if the courts rule in favor of IBM?

Feel free to add any or all of the above to your collection of opinions, and by all means, ping me again if one of your posts can prove the origin of the code in question. I'll be offline until Monday, but I'll check for pings at that time.

[InfraRed]

s/with a much/a much/

[Golden Eagle]

Nice, respectable post. We need more from your side.

Even if SCO is proven correct, there is no doubt that teams of developers will rapidly replace any code necessary to bring Linux into compliance with the law.

How will they do that, if the code is 'trade secret', and never publicly released?

Will you come to the defense of IBM and Linux if the courts rule in favor of IBM?

Unlikely, as I said to Danger, my concerns are bigger than this case itself (the growing loss of income to US software companies who sell products for profit, further expansion of insecure code created by foreigners into US markets and government) will not be addressed unless a US company or organization is somehow is given control of Linux as it's current licensing scheme is legally questionable (on what authority does it publicly release software, if no checks are made as to code legality). I also have a problem with Torvalds ego, whereby he refuses to give up personal ownership to IEEE at mininum, but instead insists on complete authoritative rights.

Again, thanks for your post, you did articulate your points well, even though as you might expect I do not agree with them. Have a great weekend, I'll be doing other things as well.

[Golden Eagle]

Infrared - something else about your post I didn't have time to respond to earlier:

Do you honestly believe that closed source could never be polluted by stolen code? Do you believe that users of closed source products are somehow exempt from laws which could potentially affect open source users?

Certainly not, but if/when these instances occur, their damage to the market is much more easily calculated, making it subsequently much easier for proper restitution to be made back into the normal business community.

That may be a little hard to follow unless you admit that Linux is not a normal 'business', as they have nothing 'for sale', and most importantly to this point, that no one 'owns' the entirety of Linux and therefore there is no accountability.

What they do currently have, despite no accountability, is the ability to take privately owned works and redistribute them within new compilations of Linux to the world as 'free', as well as provide the source code along with a promise that it can be freely used and modified and even copied without return cost as well. This results in any code that is illegally GPL'd, which Torvalds himself has admitted can easily happen, to multiply it's usage unfairly, which is difficult to track, and leaves the affected 'victim' with little recourse other than to sue the possibly lone coder who put the trade secret in, and who in most cases would not be able to provide equal restitution, IBM in this case being an exception.

So in a nutshell the GPL multiplies the damages immeasurably, and there is no accountability to seek restitution. ("everyone" being allowed to not only use it but to "own" it illegally (modify, distribute, etc), instead of just one company doing so).

Again, thanks for your post, and hope you are enjoying your time away.

[djf]

Oracle already hacked off the SAP people by piggybacking into shops that were backending SAP with Oracle, then trying to convert those shops to Oracle Financials. DB2 has been the preferred SAP development DB since Jan, 2001. I spoke to a friend of mine in Salt Lak a few minutes ago, and some companies are picketing SCO headquarters. I don't think SCO is gonna get away with it, Big Blue or MS might come along and eat em for lunch.

[for-q-clinton]

If they get a more conservative judge I think. Such a judge, would see SCO for what they are: a company looking to make money through litigation.

Actually they better hope for a liberal judge. Because a conservative judge wouldn't rule based on the intentions of the plaintif, but rather the merits/facts of the case.