SCO Blasts IBM, Red Hat Counterclaims

IBM's attempt to apply the General Public License in its counterclaim against SCO won't work because federal copyright law supercedes the GPL, SCO CEO Darl McBride and other SCO attorneys maintained at SCO Forum 2003, which opened Monday in Las Vegas.

The SCO CEO also dubbed IBM's attempts to apply patent law against SCO as part of Big Blue's typical legal "playbook" for delaying court decisions, adding that he found it "very, very interesting" for IBM--a company that holds so many patents--to go after one trying to protect its own intellectual property (IP).

"We did not raise it as part of our case; it raises stakes for everyone involved," McBride said. "We didn't raise it but we're ready to defend it."

IBM announced its counterclaims at LinuxWorld Expo recently.

At the start of SCO Forum 2003, executives pointed to the improved financial condition of the Lindon, Utah, company and its increasingly successful efforts to revive Unixware and OpenServer. These include plans to debut in late 2004 a major upgrade of OpenServer being developed as part of Project "Legend" and a major upgrade of UnixWare for 64-bit computing that will based on a new System V Release 6 code base and SCOx Web services platform.

However, much of the spotlight in the early morning hours focused on the major legal battle SCO filed against IBM in March.

McBride lashed out at Novell and Red Hat, saying efforts by those companies to cast doubt on its legal case against IBM are unfounded and that he has evidence that IBM successfully enlisted ISV partners to smear SCO's name.

During his keynote, for example, McBride claimed that Novell CEO Jack Messman did not know about an amendment to the Unix System V contract Novell sold to SCO before making public claims that Novell owned Linux copyrights. The amendment, McBride said, rendered fully Unix System V copyrights to SCO and ultimately quieted Novell.

He also questioned the seriousness of Red Hat's counterclaim, noting the Raleigh N.C., Linux software company did not seek an injunction. In its recent filing, Red Hat charged that SCO's claims--that some of its protected intellectual property ended up in some Linux code--are untrue and were solely designed to create an atmosphere of fear, uncertainty and doubt about Linux.

In spite of the tough words, SCO Forum 2003 got off to a rough start following news that SCO's chief legal counsel David Boise had to cancel his keynote at the conference. SCO attributed the cancellation to a last minute court conflict in New York.

Nevertheless, McBride and other attorneys including Mark Heise, another hired gun from Boies, Schiller & Flexner LLP, presented SCO's pending case against IBM, this time to a jury of hundreds of Unix resellers and solution providers gathered at SCO Forum 2003.

The cameras flashed when SCO attorneys briefly highlighted on screen alleged examples of "literal" copyright infringement and improper use of derivative works of Unix System V code that appear in Linux 2.4X and Linux 2.5X.

While it was difficult to ascertain the exact code being shown on screen, attorneys pointed to exact copying of some code from Unix to Linux and claimed that IBM improperly donated almost a million lines of Unix System V code to the Linux 2.4x and Linux 2.5x kernel that infringe on its Unix System V contract with SCO--and SCO's intellectual property.

SCO said that much of the core code of Linux including Non-Uniform Memory Access, the Read Copy Update for high-end database scalability, Journaling File System, XFS, Schedulers, Linux PPC 32 and 64-bit support and enterprise volume management is covered by SCO's Unix System V contracts and copyrights.

For example, 110,000 lines of Unix System V code for read copy update, 55,000 lines of NUMA code and more than 750,000 lines of symmetric multiprocessing code from Unix System V has made its way into Linux, attorneys and SCO executives said.

McBride and others said SCO's case against IBM--often depicted as that of a dying software company looking for a quick settlement--has been distorted, and that its claim is a legitimate case of a software company attempting to protect its intellectual assets.

McBride said the case--similar to one brought by the music industry against Napster--underscores significant intellectual property issues that will affect many software vendors and their resellers and solution provider channels.

"We're fighting for a right in the industry to make a living selling software," McBride said. "The whole notion that software should be free is something SCO doesn't stand for. We have drawn the line. We're supposed to be excited about that and we're not."

McBride told channel partners that the issue is critical to their bottom lines. "I would argue that you will come to an understanding that the thing we're fighting for is same thing you're going to be fighting for. If you're a reseller, when the list price [of a Linux product] is zero, the margin doesn't matter. That's where it goes. We are fighting a battle that will have an impact for all of you, for all those with IP."

McBride added the case is not about 80 lines of duplicated code but the case of the century for the software industry. "This is a huge play around IP," he said. "Globally, it's not just about Red hat and IBM. There are a lot of issues around IP with music, and in Hollywood. We are in the software industry having these issues and this can have a significant impact going forward. The evidence we have is strong."

CRN is a sponsor of SCO Forum 2003.