Bowling for Linux: AT&T Reaches Out as Artifact Trounces SCO Claim

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It's just weeks before IBM's annual PartnerWorld event in Las Vegas, and IBM Business Partners are still guessing about the outcome of SCO Group's $3 billion Linux lawsuit against IBM. Will IBM succeed in defending itself? Will Linux continue to grow as an accepted enterprise-level operating system? What about all those lawsuits that SCO Group threatened against users of Linux? Are users getting sued? What should IBM Business Partners be pushing through 2004?

Bowling for Linux--What's Been Going On?

If you've been reading the "Bowling for Linux" series of articles published here over the last year, you already know the stakes for IBM. IBM is counting on Linux--not only for balancing out the influence of Microsoft's Windows servers, but to provide integration and open-source technology to all of its hardware and software offerings. From IBM's perspective, its On Demand computing initiatives require the use of software based on open standards: Linux is a linchpin by which many of the corporation's strategies are connected.

Yet last year, SCO Group filed a massive lawsuit against IBM claiming that IBM had stolen code from SCO's UNIX operating system and inappropriately distributed that code into the Linux developer community. At first, SCO just wanted $1 billion in damages, but later it upped the complaint to $3 billion and is considering widening its complaint.

In addition, SCO said it would sue users of the Linux operating system unless they purchased a license for UNIX--even if the users had no need of UNIX.

IBM has countersued, the Linux community has been in an uproar, and the opening salvo of the legal trail against IBM is scheduled to begin in April.

AT&T Reaches Out Across 20 Years

But new evidence has recently surfaced that AT&T--the organization that originally sold Novell the rights to UNIX--gave blanket permission to its customers to enhance the code without restrictions. Novell subsequently sold its UNIX business to SCO Group in 1995.

According to reports circulating in a variety of Linux newsgroups, on February 6, 2004, Novell unearthed an ancient newsletter published in 1985 by AT&T--10 years before SCO Group obtained UNIX. The newsletter, called $ echo, and was a publication created by AT&T for its UNIX licensees. Those licensees included IBM, Sun Microsystems, and HP among others.

In the publication, AT&T stated that it wanted "to assure licensees that AT&T will claim no ownership in the software that they developed--only the portion of the software developed by AT&T."

UNIX Derivatives Developed

Subsequently, IBM, Sun, and HP all created their own versions of UNIX--based upon the AT&T source code--to maximize the performance of the hardware systems they were manufacturing. IBM created the AIX operating system, which powered the RS6000 and which powers the pSeries today. Sun OS and HP UX were other versions of UNIX that were marketed by the respected licensees. Each vendor poured hundreds of thousands of man-hours into enhancing the operating system. These derivations were never claimed by AT&T and were not considered to be in violation of the original UNIX license.

Still, Sun and HP, unlike IBM, bought out their UNIX licenses from SCO Group after SCO purchased the rights to UNIX from Novell in 1995. IBM, by comparison, continued to maintain its license agreement--paying a substantial license fee--after the sale. IBM chose not to buy out the license because it could not come to terms with SCO Group.

SCO Bowls for Linux

IBM says that when it began contributing code to the Linux operating system, it kept a strict boundary between the code originally created for AIX and the code it was developing for contribution to the Linux operating system.

Nonetheless, SCO Group saw IBM's backing of Linux as an opportunity to lay a legal claim of intellectual property on the entire Linux operating system. It saw that by using IBM's UNIX license as a shill, it could either force IBM to the bargaining table or claim ownership of Linux itself. Its tactic was to proclaim that IBM copied large sections of UNIX code--pirated the code--and directly exported it into Linux.

For months, IBM demanded to know precisely what SCO thought was pirated. But SCO refused to reveal the code itself, claiming that by doing so, IBM would tamper with the evidence and erase its guilt.

Later, however, SCO Group backed away from its claims of outright pirating. Today, it is basing its complaint upon the legal concept of "derivative works." This claim states--in essence--that because IBM had a copy of the UNIX source code in-house, it is a copyright infringement to develop and distribute Linux without obtaining a license to do so. Why? Because, according to SCO, Linux is a "derivation" of UNIX.

Is the AT&T Newsletter Real Evidence?

Yet, if the ancient AT&T newsletter is admitted into trial as evidence, the entire legal house of cards that SCO Group has constructed could collapse. Novell--in several press releases--has already stated that it never sold the derivative rights of UNIX because it did not believe it had ever owned such rights. However, what's been missing from that argument is an indication of what AT&T's initial stance might have been.

Of course, a newsletter dated nearly 20 years ago is not a legal contract. Nonetheless, if AT&T's intent back in 1985 was to "distribute" UNIX openly without restraint upon derivative works, the onus will be upon SCO Group to prove how those intentions were altered legally 10 years later through its acquisition of the source code. And that will prove to be an extremely tricky legal argument to deliver.

Thomas M. Stockwell is Editor in Chief of MC Press, LP.

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