Subject: Re: Text of SCO's complaint
From: "Benjamin J. Tilly " <ben_tilly@operamail.com>
Date: Sun, 09 Mar 2003 00:49:50 +0500

Ben Laurie <ben@algroup.co.uk> wrote:
> Simon Cozens wrote:
> > Ben Laurie:
> > 
> >>Did you read it? It seems quite clear that they are specifically 
> >>alleging that open sourcing printer drivers (91) and the journaling 
> >>filesystem (92) are examples of infringement.
> > 
> > 
> > That much seems clear - IBM had a bunch of AIX goodies which they released
> > for Linux, and if those AIX goodies really belong to SCO, then SCO have a very
> > good case for the IP theft bit.
> > 
> > The bit that they're going to have fun proving is that Linux was destined to
> > obscurity without IBM coming in and giving away this code.

If the judge has a brain, they won't be able to prove
this.  Just bring in a copy of the June-July 1998 copy
of Fortune Magazine.  The one whose cover story read,
"Peace, Love and Linux" with a big picture of Linus
Torvalds on it.

The fact that various major database vendors announced
their Linux strategies before IBM came on board says
that it was clear pre-IBM where Linux was going.  IBM
just took advantage of the business opportunities to be
found in speeding up the inevitable.

Furthermore IBM should have an easy case proving that
SCO's analysis is extremely optimistic.  Conventional
wisdom at the time held that Microsoft was going to
eat Unix for lunch, starting with exactly the kind of
applications that SCO Unix was being used for.  Unless
SCO can demonstrate that they had a convincing counter
to the NT steamroller, the belief that they would have
won that opportunity is idle speculation at best.
(Note that several companies connected to SCO -
starting with Novell - have gone head to head with
Microsoft on their home territory and lost.)

> Right - seems to me that's a strategy to increase the damages. One that 
> could backfire in a big way, since demonstrating it wasn't might also 
> convince a judge that printer drivers and journaling filesystems would 
> have happened anyway.

Correct me if I am wrong, but I thought that ReiserFS
and ext3 were the two most popular journaling
filesystems on Linux.  As far as I know, neither owes
anything to IBM.  And it seems likely that HP's support
has been more influential with regards to printers than
IBM's.

If they went after IBM for volume management or work on
threading, they might have a better case.  Those are
initiatives that I believe IBM introduced.

Therefore a billion dollar+ settlement seems very
unlikely.  However if they get permission to dig long
and hard enough then they are likely to find some
copyright violation, somewhere.  Possibly in the areas
that they are aiming at.  For instance IBM admits that
the original implementation of JFS was closely tied to
AIX's memory subsystem.  Unless the OS/2 version which
Linux' implementation is descended from was a fresh
reimplementation, SCO may well be able to find a
tortuous path through which they have a copyright claim.

Thus it seems likely that IBM will be forced to rework
some Linux goodies.  And it is entirely possible that
SCO will be able to tell IBM to pull AIX from the market.

Of course this will be small consolation for the smoking
pit that will be SCO after IBM figures out how many
patents it can nail SCO with...

(It is not in IBM's interest to have people think that
you can threaten IBM with something like this and get
away with it.  The short-term cost of a fight is far
less than the long-term cost of a thousand copyright
lawsuits.  The basic strategy is Mutually Assured
Destruction, with the difference being that IBM gets to
survive.)

Cheers,
Ben

PS IANAL and this is not legal advice.  (Of course.)
-- 

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