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Why SCO Thinks It Can Win


LINDON, Utah—In many pro-Linux circles, its a given that The SCO Group Inc. cant possibly win in court. Obviously, SCO disagrees.

In an exclusive interview, Linux and Open Source editor Steven J. Vaughan-Nichols visited SCO CEO Darl McBride and Chris Sontag, senior vice president of the SCOsource division, at the companys headquarters in Lindon, Utah. There, they explained why they think SCO can win the legal battle.

Why do you think SCO can win?

McBride: When I look at our case, I think anyone who has a rational mind would come down to the same conclusions I do.

From the outside looking in, I see that you have several major problems, all of which boil down to that to win big, you have to win three points. The first is the Novell copyright situation. To me, its not clear whos in the right here.

McBride: Would you buy an operating system without the source-code copyright? If you dont have copyright, they can turn around the next day and screw you.

Sontag: Instead, they waited nine years.

McBride: We have no doubts that our Unix copyright claims are valid.

Another issue, where I think you can win, is in your contract dispute with IBM. I know Caldera Inc. [SCOs earlier name] bought SCOs Unix properties in the first place with the expectation that IBM would continue to work with Caldera/SCO on bringing AIX/5L to Intel processors, Project Monterey. IBM, in the event, terminated Monterey only weeks after Caldera closed the deal.

Editors Note: Project Monterey was a deal between SCO and IBM, with Intels support, to develop an enterprise Unix that could run on systems based on Intels IA-32 and IA-64 architectures as well as on IBMs POWER4 processor. The result would have been a single product line supporting systems ranging from entry-level servers to large enterprise environments.

McBride: IBM had told Caldera right before the deal closed that were going to keep supporting Monterey. Afterward, the IBM guy who told us [that IBM was no longer supporting Monterey] said, Sue us.

The big question, though, is the copyright case. Here, the issues are twofold. Is there any Unix code in Linux and, if there is, who put it there? As everyone says, You keep saying that the code was stolen, well, show us the code. It seems hard for me to believe that, given that IBM and Caldera/SCO were working together on the code, that SCO can prove that, if there is any Unix code in Linux, that IBM, and not Caldera/SCO, placed this code in Linux.

The real killer to me, when push comes to shove, is that you were releasing Linux under the GPL [GNU General Public License]; I dont see how you can work around that one. You had engineers working on bringing Unix and Linux closer together, which they did with the Linux Kernel Personality; you had people with access to Unix code tasked with contributing to Linux. I find it really difficult to see how you can win without knocking out the GPL itself.

Sontag: We dont have to knock out the GPL for us to succeed on the copyright issue. The GPL itself supports, in a lot of ways, our positions. Section 0 of the GPL states that the legit copyright holder has to place a notice assigning the copyright over to the GPL.

All these contributions of our IP did not have an assignment by SCO saying here, We assign these copyrights to the GPL. The fact that we participated with Linux does not mean that we inadvertently contributed our code to the GPL. You cant contribute inadvertently to Linux. We feel we have a very strong position based on the GPL.

McBride is on record as opposing the GPL in business. Click here to read more.

McBride: We will admit the things weve contributed and that we cant claw them back. But theres a big difference in our minds between the things we contributed versus things that are now showing up out there that we didnt sign over our title. We think we have protection under both the GPL and copyright law.

Sontag: We feel very covered under the GPL itself, and second, U.S. and international copyright law does not allow for inadvertent assignments of copyrighted material; the copyright holder must make an explicit assignment, typically in writing, in a contract. If thats the strongest argument thats out there that SCO has a big problem here, thats a molehill as far as were concerned.

You still havent shown this code, though, that you say IBM has taken from Unix and placed into Linux.

McBride: In the interrogatory answers in the IBM case, weve been showing examples of code.

Sontag: Weve shown the SGI code and a number of other things. The preponderance of stuff that well be showing, other than the IBM derivative work, is still forthcoming.

McBride: A lot of code that youll be seeing coming on in these copyright cases is not going to be line-by-line code. It will be more along the lines of nonliteral copying, which has more to do with infringement. This has more to do with sequence, organization, which is copyright-protectable. Its interesting when you go down this path that everyone wants to go to the exact lines of code, but most copyright cases…

Sontag: 90 to 95 percent

McBride: …are not line-by-line, exact copies. Its too obvious. Most copyright infringement cases come from these nonliteral implementations of the same code or literary work.

Sontag: My favorite example is the Russian author [Dmitry Yemets], who lost in a copyright case [after being sued by] J.K. Rowling, author of the Harry Potter books, in a Dutch court. He had written a book: It was a girl, not a boy, with magical powers who rides a magical fiddle and not a broom, goes to a boarding school to learn witchcraft and wizardry, plays a game of throwing balls through hoops. All these things were very similar to Harry Potter. Could someone else ever write a book about wizards and witches? Sure. But when the structure and sequence is the same…maybe the words, the code, isnt exactly the same, but Linux is trying to be just like Unix System V. The question is whether Linux was trying to be like Unix System V by doing it in ways that were illegal.

McBride: Before all of this is said and done, youll see people saying that SCO already published a lot of this stuff in books but that these books contained copyright-protected materials.

What book are you talking about? Lions book?

Editors Note: “Lions Commentary on UNIX 6th Edition with Source Code” by Tom Lions is a book for Unix developers that, decades after it was published, is still regarded as one of the best guides on a Unix-style operating system.

McBride: No, thats ancient stuff. Were talking about recent stuff posted as a result of the BSD [Berkeley Software Design Inc.] settlement. There are things out there that help people understand how to program to System V application binary interfaces [ABIs], to help them hook up to the OS. It was out there to help people write applications. It wasnt published to help someone knock off the OS and create a free version of System V.

Sontag: If I can get my hands on it, its mine.

McBride: I saw it, it was published, so the cows are out of the barn. The analogy I like to use is Vanilla Ices “Ice Ice Baby” versus David Bowie and Queens “Under Pressure.” If you just look at the words, I dont see a copyright violation, but if you listen to the riffs, you can hear where theyre the same.

Editors Note: Vanilla Ice settled out of court presumably because his song included riffs that had been taken from Bowie and Queens work. See Copyright Website LLC for more on the issue.

McBride: When everything is said and done, when everything is on the table in the court case, there will be an argument when the Linux guys come in and say, Guys, the words are entirely different, how can you say thats a copyright violation?

But there are two parts to this. There are the words that are in the source code, and theres the music underneath. The actual code that drives these ABI files is structurally and sequentially the same.

What about the argument that, given the nature of the language and the design goals, that of course youd end up with similar structures. I mean, how many efficient ways are there to write hello world [the canonical beginners program]?

McBride: Well give them hello world.

Sontag: Sure, there may be some of that, but look at dynamic shared libraries; different operating systems implement these very differently. But in Linux and System V, theyre implemented in exactly the same way. They could have been done very differently and still accomplish the same thing.

McBride: Thats the kind of stuff that we think that, when everything is on the table, will win for us.

Im no lawyer, but if Eben Moglen [law professor at Columbia University Law School and general counsel of the Free Software Foundation] were here, I think he might ask, if these copyright violations exist, why dont you tell the Linux community about them so that they can be replaced, so that there will be no continuing damage from these violations.

McBride: I talked to Linus [Torvalds] in an e-mail exchange last summer, and I told him I was willing to show him the code. But he said he didnt want to see it because he didnt want to be tainted by it. So, theres this attitude of we want to show it, but we dont see it.

Sontag: We also want to respect the court.

McBride: The truth will come out in the courtroom.

A version of this story first appeared in eWEEK.

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