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Saturday, September 6, 2003
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SCO's Shifting Sands, Part 1 --
Does SCO Own UNIX?
I was sent some research, compiled by a reader, who offered
it to Groklaw. Naturally, I accepted. There is so much to it, I can only put up what I
can confirm and verify myself, so it'll be appearing bit by bit, subject by subject. At
the end, I'll collect it together in one document and make it a
permanent page.
The overall theme is contradictions in SCO's
presentation of the facts and of its position, which has changed several
times over, so the final document will be entitled, "SCO's Shifting Sands".
While some of the material has been touched on here and elsewhere,
putting it all in one place has a cumulative effect which is impressive,
and I believe some of this research, as you'll see
for yourself over time, is unique.
So, with that introduction, here is the first segment,
whether SCO is the "owner of the UNIX®
operating system" or not.
The rest
of this article is the reader's magnum opus, part one, with no further commentary from me:
1. SCO "owner of the UNIX® operating system" - or maybe
not?
(a) SCO has repeatedly claimed to be the "owner of the
UNIX operating system" (and other similar claims - important: note
singular "operating system"). For example:
A press
release dated 19 August 2003, begins:
"LINDON, Utah, Aug.
19 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX - News),
the owner of the UNIX® operating system, today announced the appointment
of Gregory Blepp as vice president of SCOsource. Blepp will report to
Chris Sontag, the senior vice president and general manager of
SCOsource, the division of SCO tasked with protecting and licensing the
company's UNIX intellectual property."
A press
release dated 18 August 2003 in the "About SCO" section contains
(incidentally a number of other press releases issued on the same day
contain a different footnote):
"The SCO Group (Nasdaq: SCOX -
News), the owner of the UNIX operating system, helps millions of
customers in more than 82 countries to grow their businesses.
Headquartered in Lindon, Utah, SCO has a worldwide network of more than
11,000 resellers and 8,000 developers. SCO Global Services provides
reliable, localized support and services to all partners and customers.
For more information on SCO products and services, visit
http://www.sco.com"
A press
release dated 6 June 2003, contains:
"'SCO is the owner of
the UNIX operating system, as well as all of the UNIX contracts, claims
and copyrights necessary to conduct that business,' said Sontag. 'None
of the litigation we are currently involved with asserts claims based on
copyrights. Because others have called into question SCO's ownership of
the UNIX and UnixWare copyrights, we are satisfied that we have now
proven without a doubt that SCO owns those copyrights.'"
In a
Wired News article
by Michelle Delio, dated 7 March 2003, the following
appears:
"SCO, based in Lindon, Utah, owns the rights to the
Unix System V operating system technology, which was developed at AT&T
Bell Labs in the 1960s. . . .On Thursday McBride added: 'SCO is in the enviable
position of owning the Unix operating system. It is clear from our
standpoint that we have an extremely compelling case against IBM.'"
In an eWeek article by
Peter Galli, dated 6 March 2003, the following appears:
"'SCO
is in the enviable position of owning the UNIX operating system,' said
Darl McBride, president and CEO, SCO, in an interview with eWeek
Thursday. 'It is clear from our standpoint that we have an extremely
compelling case against IBM. SCO has more than 30,000 contracts with
UNIX licensees and upholding these contracts is as important today as
the day they were signed.'
"McBride said the bottom line was that
SCO owned the source code to Unix and the right to that operating
system. IBM had taken AIX and made it available to the Linux community
in an unlawful way."
In both SCO's original complaint in the
IBM case - and in the amended complaint in the same case, SCO asserts
UNIX is a particular computer operating system (important note: singular
use of operating system), and that SCO owns it.
From SCO's original March complaint, available
here.
"1. UNIX is a computer operating system program and related software originally developed by AT&T Bell Laboratories ("AT&T"). SCO/UNIX is a modification of UNIX and related software developed by SCO and its predecessors. UNIX and SCO/UNIX are widely used in the corporate, or "enterprise," computing environment.
"10. UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs ("applications") that run on the computer. Operating systems allow multiple software programs to run at the same time and generally function as a "traffic control" system for the different software programs that run on a computer.
From SCO's
amended complaint in the IBM case, also available here,
the following assertions are made:
"1. UNIX is a
computer operating system program and related software originally
developed by AT&T Bell Laboratories ('AT&T'). UNIX is widely used in the
corporate, or 'enterprise,' computing environment.
"2. Through a
series of corporate acquisitions, SCO presently owns all right, title
and interest in and to UNIX and UnixWare operating system source code,
software and sublicensing agreements, together with copyrights,
additional licensing rights in and to UNIX and UnixWare, and claims
against all parties breaching such agreements. Through agreements with
UNIX vendors, SCO controls the right of all UNIX vendors to use and
distribute UNIX. These restrictions on the use and distribution of UNIX
are designed to protect the economic value of
UNIX."
And:
"18. UNIX is a computer software
operating system. Operating systems serve as the link between computer
hardware and the various software programs ('applications') that run on
the computer. Operating systems allow multiple software programs to run
at the same time and generally function as a 'traffic control' system
for the different software programs that run on a computer."
(b) However UNIX® is in fact a registered trademark of The Open Group.
(i) The
Open Group says on
their web site:
"The Open Group holds the definition of what
a UNIX system is and its associated trademark in trust for the
industry."
(ii) SCO themselves acknowledge the trademark,
in the footnotes of their own press releases.
(iii) Furthermore SCO's UNIX products have been certified by
The Open Group; for example versions of SCO Unixware are listed as UNIX
95 on
this page.
(iv) Furthermore SCO is in fact a "Regular
Member" of The Open Group according to a
list last updated on 31 August 2003.
(v) Furthermore
various definitions of what UNIX is ("specifications"), are US and/or
international standards. For example, the core volumes of Version 3 of
the single UNIX specification were approved as an international
standard, ISO/IEC 9945:2002, in the year 2002. (Version 2 of the single
UNIX specification was made available freely on the web by The Open
Group in 1997). See this
page.
It is therefore reasonable that the Open Group's
description and definition of UNIX is not only the correct one, but at
least sometimes, the one accepted by SCO.
(c) The Open Group
clearly states
that UNIX is not one particular operating system (as some SCO
documents/reports/court-filings suggest), but rather a group of
operating systems ("multiple implementations" - important: note plural)
that conform to their specified standard:
Furthermore, each
different UNIX operating system need not be implemented in terms of a
particular set of source code. The Open Group even points to at least
one independent implementation of UNIX operating systems that are free
of the particular set of source code that SCO purports to
own.
"As the owner of the UNIX trademark, The Open Group has
separated the UNIX trademark from any actual code stream itself, thus
allowing multiple implementations. Since the introduction of the Single
UNIX Specification, there has been a single, open, consensus
specification that defines the requirements for a conformant UNIX
system."
On this page, they explain
the historical background:
"In 1994 Novell (who had acquired
the UNIX systems business of AT&T/USL) decided to get out of that
business. Rather than sell the business as a single entity, Novell
transferred the rights to the UNIX trademark and the specification (that
subsequently became the Single UNIX Specification) to The Open Group (at
the time X/Open Company). Simultaneously, it sold the source code and
the product implementation (UNIXWARE) to SCO. The Open Group also owns
the trademark UNIXWARE, transferred to them from SCO more
recently."
Further acknowledgement that multiple independent
implementations (important - note plural) of UNIX operating systems are
at least conceivable, The Open Group says:
"Will the UNIX Brand criteria allow Microsoft to brand NT
or others to brand proprietary environments?
"The Open Brand is
open to any supplier whose product meets the published criteria. Many
products that have been traditionally regarded as proprietary already
have the XPG4 Base brand. For those products, additional work may be
required to comply with the additional specifications (networking,
terminal interfaces, etc.) that comprise the definition of a UNIX
system."
More acknowledgement that multiple independent
implementations (important - note plural) of UNIX are at least
conceivable, is
here:
"What about Windows® NT?
"Microsoft®
Windows NT was developed as a completely new, state of the art, 32 bit
operating system. As such, it has no connection with the UNIX system
source code. However, market demand for POSIX.1, POSIX.2 has led to
developments by several companies of add-ons that provide partial
functionality. Should the functionality meet the requirements of the
UNIX brand then indeed it could become a registered UNIX system.
The Open Group
goes on to say, that multiple independent implementations (important
- note plural) of UNIX operating systems are not only conceivable - but
at least one has already happened:
"What about IBM®'s OS/390?
"IBM has been quietly working on its mainframe operating system
(formerly MVS) to add open interfaces for some years. In September 1996,
The Open Group announced that OS/390 had been awarded the X/Open UNIX
brand, enabling IBM to identify its premier operating system to be
marked UNIX 95. This is a significant event as OS/390 is the first
product to guarantee conformance to the Single UNIX Specification, and
therefore to carry the label UNIX 95, that is not derived from the AT&T/
SCO source code."
The Open Group have even released a
document giving background information pertaining to the SCO v IBM
case. While they take no position on any contractual dispute between
IBM and SCO, The Open Group seeks clarity on the use of their UNIX trade
mark, and include the following statement:
"Regarding SCO's
positioning on UNIX, The Open Group would like to make it clear that SCO
holds the rights ONLY to the operating system source code (originally
licensed by AT&T) and related intellectual property and DOES NOT OWN the UNIX
trademark itself or the definition (the Single UNIX Specification) of what
the UNIX system is.
"Reference to the SCO web site shows that
they own certain intellectual property and that they correctly attribute
the trademark to The Open Group. SCO has never owned "UNIX". SCO is
licensed to use the registered trademark UNIX "on and in connection" with
their products that have been certified by The Open Group, as are all
other licensees.
"These are the ONLY circumstances in which a
licensee may use the trademark UNIX on and in connection with its products.
"Statements that SCO 'owns the UNIX operating system' or has 'licensed
UNIX to XYZ', are clearly inaccurate and misleading."
(d) Thus, one might conclude,
that contrary to the SCO's assertions:
(i) UNIX® is NOT a
particular operating system - but a group of operating systems (note:
plural) which share common characteristics.
(ii) UNIX®
operating systems (note: plural) need not be derived from any particular
set of source code. The Open Group (who determine what is and isn't
UNIX, even according to SCO):
. explicitly states that
allowing "multiple [independent] implementations" (note: plural) as
being a goal of their work
. gives examples of possible
future independent UNIX implementations
. gives an
example of already existing independent UNIX implementation
(S/390)
. explicitly disavows statements that "SCO owns
the UNIX operating system"
(iii) SCO somehow manages the
difficult, and we would opine inconsistent, act of
simultaneously:
. accepting most or all of The Open
Group's position (by acknowledgement in press releases of The Open
Group trademark (presumably under license), by membership in The Open
Group, and by past certification of SCO products by The Open Group),
. and either denying, or taking a wildly different
position from, the Open Group's position (various assertions implying
that UNIX is single operating system, and stating SCO is the "owner the
UNIX operating system").
We would therefore suggest that there is
clear inconsistency between SCO's statements and actions. We would
also conclude that there is also a clear inconsistency between SCO's
statements and publicly available and verifiable information.
The AT&T source codes, therefore, would appear to
be only one particular implementation of a UNIX operating system.
However it is entirely possible (and has in fact already occurred as
previously cited for S/390) for other UNIX operating systems to exist,
which do not depend on licensing or access to the AT&T
source code.
Furthermore, operating systems implemented using the
AT&T source code do not automatically fall within the definition of
UNIX®. This is confirmed at this page,
which describes allowable uses of the UNIX® trade mark:
"If a vendor licenses source code from SCO, why do they need
a TMLA from The Open Group?
"Licensing source does not entitle a
vendor to use the UNIX trade mark. SCO holds the rights ONLY to the
operating system source code (originally licensed by AT&T) and related
intellectual property and DOES NOT OWN the UNIX trademark itself or the
definition (the Single UNIX Specification) of what the UNIX system is.
AT&T always required the vendor to have a TMLA as well as a source code
licence."
In other words, the definition of UNIX, and any
particular operating system implementation are entirely separate. Even
if SCO were to have undisputed ownership of the AT&T source code, and
the AT&T implementation of a UNIX operating system, with no legal
limitations, it would not follow that SCO had any rights on independent
implementations of UNIX operating systems, according to the Open Group's
explanation. This is confirmed by
numerous references in section (c) , and in particular by the historical
background described here:
"In 1994
Novell (who had acquired the UNIX systems business of AT&T/USL) decided
to get out of that business. Rather than sell the business as a single
entity, Novell transferred the rights to the UNIX trademark and the
specification (that subsequently became the Single UNIX Specification)
to The Open Group (at the time X/Open Company). Simultaneously, it sold
the source code and the product implementation (UNIXWARE) to SCO. The
Open Group also owns the trademark UNIXWARE, transferred to them from
SCO more recently."
1:49:25 PM 
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