Friday is the deadline for IBM to meet SCO's demand that it comply with the terms of its license to sell Unix or face revocation of that license. But IBM, which says it hasn't done anything wrong, isn't likely to yield to SCO's demands. "We think we have nothing to do. We haven't violated the contract," said IBM spokeswoman Trink Guarino.
SCO's course of action is clear. "If SCO truly believes what they're saying, once the cure period comes and goes without any action by IBM, they should quite promptly be filing in court a request for preliminary injunction," said Rich Gray, a Silicon Valley intellectual-property attorney. The preliminary injunction would likely seek to block IBM's future sales of its Linux product, called AIX.
SCO spokesman Blake Stowell said the company probably will announce its next move Monday. A request for preliminary injunction is "a likely option, but it's one of many we could take," he said.
SCO will probably take the weekend to decide what to do. Barring any settlement by the end of Friday, June 13, "you should expect on (June) 16th, we will be taking appropriate steps to enforce the contract rights we have," SCO Chief Executive Darl McBride said last week.
In March, SCO surprised the computing industry by suing IBM for more than US$1 billion, arguing that the company broke its contract with SCO by misappropriating trade secrets SCO owned by using them to improve Linux. Simultaneously, SCO told IBM that if it didn't come into compliance with the contract within 100 days, it would revoke IBM's contract to sell its Unix product, AIX.
The case directly affects a major portion of IBM's business. In 2002, it had US$3.6 billion in Unix server sales, according to Gartner Group. That figure doesn't include revenue from support or software such as Big Blue's Tivoli, DB2 or WebSphere products that often are sold along with those servers.
The two companies have discussed settlement, but those talks haven't been fruitful, Stowell said. "We've had discussions with them, prior to today, but those discussions were short," he said.
One action SCO could take, but won't at least initially, is to target users of IBM's AIX products.
"We would also have the right to make all the AIX licenses (that IBM's) customers have invalid, but at this point in time we have chosen not to exercise that option," Stowell said. "We view the customers as innocent bystanders in this, but that doesn't mean we won't invoke that right at some time."
In any case, Guarino said, IBM has been reassuring its customers. "They know they're going to get support from IBM. They have confidence that IBM will ultimately resolve this issue," she said.
Obtaining a preliminary injunction won't be easy for SCO, said Daniel Harris, an intellectual-property attorney with Clifford Chance.
SCO would have to convince a judge that (1) its lawsuit has enough merit to succeed and (2) that continued sales of AIX products would damage SCO in a way that couldn't merely be compensated by paying SCO money, Harris said. "That, I believe, will make it virtually impossible to get a prelim injunction," Harris said.
Gray, though, believed SCO could fare better. "If the theory they've set out in their complaint can be backed up by proof, I think they have a pretty good shot to making a good showing," he said. But he cautioned, "A good question is can they back up the allegations of their claim with proof."
One possible argument IBM could make against a request for preliminary injunction is that it wouldn't fix anything, Gray said. SCO's lawsuit argues that IBM violated Unix trade secrets by moving Unix technology to Linux, thereby damaging SCO, but IBM could argue that stopping IBM's Unix shipments wouldn't change SCO's position.
The classic trade secret is the recipe for Coca-Cola, Gray said. If a Coca-Cola employee published that recipe on the Internet and the secret got out, it would be too late for an injunction against that employee to matter.
How SCO leaked its own code...
from: http://lwn.net/Comments/36053/
The Trillian Project : Proof of SCO's actions
(#36053 by NZheretic in response to Did SCO open Unix source code? (ZDNet).)
So, how did Linux become so capable of scaling beyond the heights of the
old UNIXs. More importantly, who helped put what where?
As with the marketing of cars and TVs, it is the vendor's high end
leading edge models which sells the standard models, from which most of
the sales and profit is made. For the enterprise server market today,
that high end is multi-headed 64bit SMP ( shared memory multiprocessor
) systems, never mind the fact that single 32bit processors provide more
than enough power to do most jobs. For all intensive purposes, it is the
ability of the core OS to scale on 64Bit SMP systems that defines
"enterprise scalability". Other enterprise feature are effectively just
addons, which in the case of Linux, have been freely contributed from
many vendors and developers.
Since version 2.0, Linux was more than just a 32bit x86 operating
system. With the insistence and assistance of John "Maddog" Hall, Linux
was already ported to the 64Bit Alpha processor, which delivered great
performance and stability. Just like the traditional AT&T UNIX source
base, the ownership of the Alpha chipset passed though many hands,
suffering the same fate of a thousand cutbacks. Even Alpha's "native"
OS, VMS, has been ported to Itanium by HP/Compaq.
Since 1997 Intel has been promoting the Itanium line as the inevitable
successor for every other server processor on the market. Despite the
early vaporware status, Intel has been very successful, at least in
terms of marketing. With the exception of it's mainframes systems, even
IBM ships Itanium systems that directly compete with their own Power
processors.
For what The SCO Group has to offer with SCO Unixware 7,the Itanium line
is the only 64Bit option. The problem for The SCO Group is that modern
Linux can compete so well in that same market, that the value of
Unixware is rapid deteriorating to a historical curiosity. I suspect
that The SCO Group ( at that time called Caldera ) executives were well
aware of this before they acquired the server part of Old SCO in August
2000, or they would have known, if they spoken to the right executives
and technical staff.
So how did Linux get scale on Itanium? The SCO Group would have you
believe it was all IBM's doing, which isn't as interesting as the real
story. The web of history weaves to encircle and entangle a much more
diverse group of conspirators, including many of The SCO Group, Caldera
and old SCO own former executives and other employees.
In October 1998, IBM, Old SCO and Sequent teamed up to
collectively develop parts of Unixware and AIX into scalable 64bit ready
ports for IBM's Power processors and Intel's AI64, or Itanium, under the
banner of Project Monterey. But by then, it was already too late.
In February 1998, well before even the first prototype IA-64 chips were
available, a skunkworks team at HP, with some assistance from Intel,
began the work toward porting Linux to IA-64. By October 1998,around the
same time that IBM, Old SCO and Sequent had finished negotiations, HP
had completed the build toolchain. By January 1999, the Linux kernel was
booting on an IA-64 processor simulator, months before the actual
Itanium processor was available. In March 1999, at Intel, Linux was
booting on the actual Intel Itanium processor. In April 1999, CERN
joined the projects for the port of the Gnu C library and VA Linux
Systems joined the project and rapidly improved the stability and
performance.
In May 1999, the Trillian Project is foundered and HP, VA Linux and
Intel collectively provided their source patches to the Linux kernel for
the Itanium port under the GPL license.
A bootable kernel alone however does not make an OS make. HP supplied
the patches for the toolchain ( initial GCC C