June 16, 2003 9:20 PM PDT

SCO suit now seeks $3 billion from IBM

SCO Group has upped the ante in an amendment to its suit against IBM, seeking more than $3 billion in damages for alleged copying of proprietary Unix intellectual property into Linux.

In March, SCO Group surprised the world with a lawsuit seeking more than $1 billion against IBM in the case. An amended complaint filed Monday in U.S. District Court in Utah added more claims against IBM, tripled damages to at least $3 billion, sought an injunction prohibiting IBM from selling Unix and detailed some accusations of technology moved to Linux.

SCO seeks at least $1 billion in damages from IBM's alleged breach of its contract with SCO; another $1 billion for breach of the Unix contract signed by Sequent, which IBM acquired in 1999; and another $1 billion for unfair competition. SCO also seeks more for misappropriation of trade secrets and punitive damages.

The amended suit also asserts that SCO holds copyrights to Unix, a point that could be key in future Linux and Unix litigation. Novell, which owned Unix intellectual property before selling it to SCO's predecessor, initially disputed SCO's ownership, but later relented.

However, the suit still makes no claims of copyright violation, which several independent attorneys believe could lead to stronger claims than that of trade secret infringement. After the Novell spat, SCO said it had not registered those copyrights. Independent attorneys say SCO must register the copyrights before basing legal action on them.

SCO has made no secret in recent months that it hired high-profile attorney David Boies to spearhead its case against IBM, but the company's legal representation in Utah courts is also noteworthy. The company retained Brent O. Hatch and Mark F. James of the law firm Hatch, James & Dodge. Hatch is the son of Sen. Orrin Hatch, R-Utah, a representative for SCO confirmed Monday.

The suit specifically blames Linux founder and leader Linus Torvalds for allowing proprietary Unix code into Linux.

"As IBM executives know, a significant flaw of Linux is the inability and/or unwillingness of the Linux process manager, Linus Torvalds, to identify the intellectual property origins of contributed source code that comes in from those many different software developers. If source code is code copied from protected Unix code, there is no way for Linus Torvalds to identify that fact," the suit said. "As a result, a very significant amount of Unix protected code is currently found in Linux 2.4.x and Linux 2.5.x releases in violation of SCO's contractual rights and copyrights."

Torvalds said in an e-mail interview that the Linux developer community's process is transparent and called on SCO to reveal what its specific complaints are.

"It's not our side that isn't identifying the code. We'll work damn hard to identify everything they care to name," Torvalds said. "In fact, the source control system is out there in the public, and it identifies the source and the reason for patches," mentioning the BitKeeper repository he's used for the past two years to keep track of code in the heart, or kernel, of Linux.

Torvalds sided with IBM over what rights Big Blue has over its code. "IBM, as the original sole author to a particular piece of code, has full copyright rights, and they (not SCO) can use the code they wrote themselves in any way they see fit," Torvalds said.

In its amendment, the Lindon, Utah-based company toned down some of the language questioning the abilities of the open-source community that collectively creates Linux by sharing code freely.

Gone is the statement, "Prior to IBM's involvement, Linux was the software equivalent of a bicycle. Unix was the software equivalent of a luxury car." Also missing is the statement, "It is not possible for Linux to rapidly reach Unix performance standards for complete enterprise functionality without the misappropriation of Unix code, methods or concepts to achieve such performance, and coordination by a larger developer, such as IBM."

But the original idea is still intact: Redesigning Linux for use by demanding business customers "is not technologically feasible or even possible at the enterprise level without (a) a high degree of design coordination, (b) access to expensive and sophisticated design and testing equipment; (c) access to Unix code and development methods; (d) Unix architectural experience; and (e) a very significant financial investment," the amended suit says.

The suit details much of the Unix and Linux chronology, but still missing from the complaint's history of Linux are discussions of SCO's involvement in Linux development under its previous names, Caldera International and Caldera Systems. Caldera, which raised $70 million for its Linux sales business through a March 2000 initial public offering, was a member of the Trillian project to bring Linux to Intel's Itanium processor and helped found the Open Source Development Lab to make Linux suitable for high-end multiprocessor servers.

The suit also adds illegal export issues stemming from the worldwide availability of open-source software. SCO claims IBM has breached its contract by making multiprocessor operating system technology available "for free distribution to anyone in the world," including residents of Cuba, Iran, Syria, North Korea and Libya, countries to which the United States controls exports. The open-source technology IBM released "can be used for encryption, scientific research and weapons research," the suit said.

SCO also detailed one element of technology that it asserts IBM copied, the Remote Copy Update (RCU) system, for relieving some memory bottlenecks on multiprocessor servers.

The amended complaint includes an IBM copyright on the RCU technology that names the an engineer as the author, with work "based on a Dynix/ptx implementation by Paul Mckenney (sic)." Dynix/ptx was Sequent's version of Unix for servers with multiple Intel processors.

It appears that RCU indeed stems from work in Dynix/ptx. In a paper on his Web site, IBM's Paul McKenney says RCU was included in Dynix/ptx in 1994. And the Linux Scalability Effort's Web site says that RCU patches are "based on original DYNIX/ptx code (released by IBM under GPL)"--the GPL referring to the General Public License that covers Linux. Torvalds accepted RCU into the Linux kernel in October 2002.

 

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