Subject: Re: Text of SCO's complaint
From: Brian Behlendorf <>
Date: Fri, 7 Mar 2003 18:52:34 -0800 (PST)

The parts of the complaint that disparage Linux make for an entertaining
side show meant to sway nontechnical parties into accepting that there's a
reason to allow the case to proceed, start issuing subpeonas, etc.  The
actual claims that SCO are making regarding the defendant, though, are
parts like the first cause for action:

 IBM, through improper means acquired and misappropriated SCO's
 Trade Secrets for its own use and benefit

and the second cause for action:

 IBM has engaged in a course of conduct that is intentionally and
 foreseeably calculated to undermine and/or destroy the economic value of
 the UNIX Software Code anywhere and everywhere in the world,

This first cause (which is related to causes 3-5) relies upon SCO being
able to prove that SCO code, or a derivative work of it, was illegally
redistributed by IBM.  Being able to prove that would require a lengthy
search through IBM's own repositories and emails and anything else they
have recorded to see if such a thing happened.  But, this is no different
than any number of cases like this filed every year regarding copyright
infringement.  SCO didn't provide evidence of this infringement yet, but
all it has to show is there's a reasonable cause for suspecting this
happened, which is why all the puffery around "Linux could never have
been" blah blah blah.  Maybe I'm just so immune to hype these days that
kind of thing doesn't bug me anymore.

The point of my last message was, let's at least be consistant.  SCO suing
IBM over copyright infringement is just as valid, *if there was
infringement*, as the FSF suing a company that infringes on the GPL.
Since none of us actually knows if there's actually been infringement,
none of us have a basis for saying whether this suit has merit or not.

Upon rereading the document, I'm now starting to think the second cause
for action is something more worth worrying about.  I've had a paranoid
fantasy for awhile now that a court would look at a group of companies
collaborating on software and collectively setting the price of that
software to zero as being anticompetitive, especially when that action is
with the declared intent to drive competitors out of a market.  Look at
other antitrust cases, and you'll see a pattern - one set of products
provided at below-cost in order to destroy competitors, if only to drive
customers to spend that money in another part of the market.  The tech
world has so much churn with both technologies and business models that it
may be a stretch to claim it, but all someone has to do is claim it and
file a lawsuit to cause problems.

I don't think either claim will succeed, of course, the first because the
level of proof needed is too high, and the second because it's too
esoteric (unless they're lucky and get a good lawyer and a gullible jury).