SCO's claims were derived from several contracts that SCO asserted transferred UNIX System V Release 4 intellectual property assets. The UNIX IP rights originated with
Unix System Laboratories (USL), a division of AT&T. In 1993, USL sold all UNIX rights and assets to Novell, including copyrights, trademarks, and active licensing contracts. Some of these rights and assets, plus additional assets derived from Novell's development work, were then sold to the
Santa Cruz Operation in 1995. The Santa Cruz Operation had developed and was selling a PC-based UNIX until 2000, when it then resold its UNIX assets to
Caldera Systems, which later reorganized into
Caldera International and changed its name to
SCO Group. Through this chain of sales, SCO claimed to be the "owner of UNIX". The validity of the claims was immediately and hotly contested by others. SCO claimed copyright to all UNIX code developed by USL, referred to as
SVRx, and licensing contracts originating with AT&T, saying that those were inherited through the same chain of sales. The primary document SCO presented as evidence of these claims was the "Asset Purchase Agreement", defining the sale between Novell and the Santa Cruz Operation. SCO claimed that the sale included all copyrights to the UNIX code base and contractual rights to the licensing base. The other parties disagreed.
UNIX copyrights ownership Arguably, the status of copyrights from some of the assets of the
USL was murky, since
UNIX code is a compilation of elements with different
copyright histories. Some code was released without
copyright notice before the
Copyright Act of 1976 made
copyright automatic. This code may be in the
public domain and not subject to
copyright claims. Other code was affected by the
USL v. BSDi case, and is covered by the
BSD License.
Groklaw uncovered an old settlement made between
Unix System Laboratories (USL) and
The University of California in the case of
USL v. BSDi. This settlement ended a
copyright infringement suit against the university for making
BSD source code freely available that
USL felt infringed their copyrights. The university filed a counter suit, saying that USL had taken
BSD source code and put it in
UNIX without properly acknowledging the university's copyright. This settlement muddied the question of
SCO's ownership of major parts of the
UNIX source code. This uncertainty was helpful in SCO's attempts to cast doubt on
Linux, which did use some
BSD code.
Novell challenged, ultimately successfully,
SCO's interpretation of the purchase agreement. In response to a letter SCO sent to 1500 companies on May 12, 2003, Novell exchanged a series of letters with SCO beginning in May 2003, stating that the copyrights for the core
UNIX System V were not included in the asset purchase agreement and were retained by Novell. In October 2003, Novell registered those copyrights with the
US Copyright Office. In response to these challenges from Novell, SCO filed a "
slander of title" suit against Novell,
SCO v. Novell. SCO claimed that
Novell was interfering with their business activities by clouding the ownership of
UNIX copyrights (that is, SCO claimed Novell was doing what SCO was actually doing). SCO's claim for special damages was dismissed on June 9, 2004, for "failure to specifically plead special damages." However, SCO was given 30 days "to amend its complaint to more specifically plead special damages". In the same ruling, the judge stated that it was questionable whether or not the Asset Purchase Agreement transferred the relevant copyrights, reasoning that the ASA amendment by which SCO was claiming to have acquired those rights contained no transfer language in the form of "seller hereby conveys to buyer" and that it used ambiguous language when it came to the question of when and how and which rights were to be transferred.
License administration standing The Novell to Santa Cruz Operation Asset Purchase Agreement also involved the administration of some 6000 standing licensing agreements between various UNIX users and the previous owners. The licensees included universities, software corporations and computer hardware companies. SCO's claimed ownership of the licenses became an issue in three aspects of the SCO–Linux controversies. The first was the cancellation of IBM's license, the second was SCO's complaint against DaimlerChrysler (see
SCO v. DaimlerChrysler), and the third is the derivative works claim of the
SCO v. IBM case. In May 2003, SCO canceled IBM's SVRx license to its version of UNIX,
AIX. This was based on SCO's claim of unrestricted ownership of the System V licensing contracts inherited from USL. IBM ignored the license cancellation, claiming that an amendment to the original license made it "irrevocable". In addition, as part of the Purchase Agreement, Novell retained certain rights of control over the administration of the licenses which were sold, including rights to act on SCO's behalf in some cases. Novell exercised one of these rights by revoking SCO's cancellation of the IBM license. SCO disputed the validity of both of these actions, and amended its
SCO v. IBM complaint to include copyright infringement, based on IBM's continued sale and use of AIX without a valid SVRx license. In December 2003, SCO demanded that all UNIX licensees certify some items, some related to the use of Linux, that were not provided for in the license agreement language. Since DaimlerChrysler failed to respond, SCO filed the
SCO v. DaimlerChrysler suit in March 2004. All of SCO's claims related to the certification demands were summarily dismissed by the court.
Control of derivative works The third issue based on the UNIX licensees agreement is related to SCO's claims of control of derivative works. Many UNIX licensees have added features to the core UNIX SVRx system and those new features contain computer code not in the original SVRx code base. In most cases, software copyright is owned by the person or company that develops the code. SCO, however, claimed that the original licensing agreements define this new code as a
derivative work. They also claimed that they have the right to control and restrict the use and distribution of that new code. These claims were the basis of
SCO v. IBM. SCO's initial complaint said that IBM violated the original licensing agreement by not maintaining confidentiality with the new code, developed and copyrighted by IBM, and releasing it to the Linux project. IBM replied that the license agreement (noted in the $Echo newsletter of April 1985) and subsequent licenses defined derivative works as the developer's property. That left IBM free to do as it wished with its new code. In August 2004, IBM filed a motion for partial summary judgment. The motion stated that IBM had the right to do as it wished with software not part of the original SVRx code. In February 2005, the motion was dismissed as premature, because discovery was not yet complete. IBM refiled this motion along with other summary judgment motions as noted below in September 2006.
SCO allegations of copyright and trade secret violations Without providing any specific information or showing a single line of supposedly-infringing code, SCO claimed that Linux infringed SCO's
copyright,
trade secrets, and contractual rights. The claim was fundamental to the
SCOsource program, where SCO demanded that Linux users obtain licenses from SCOsource to be properly licensed to use the code in question. Exactly which parts of Linux were involved was not disclosed by SCO; this led some observers to doubt SCO actually had any proof of infringement, which was ultimately shown to be the case. SCO originally claimed in
SCO v. IBM that IBM had violated trade secrets. But these alleged violations by IBM would not have involved Linux distributors or end users. SCO's trade secret claims were dropped by SCO in their amended complaint. SCO also claimed line-for-line literal copying of code from UNIX code files to Linux kernel files and obfuscated copying of code, but originally refused to publicly identify which code was in violation. SCO submitted to the court evidence of their claims under seal but much of it was excluded from the case after it was challenged by IBM as not meeting the specificity requirements to be included. These examples fell into two groups. The first were segments of files or whole files alleged to originate in UNIX SVRx code such as the
errno.h header file. The second group were files and materials contributed by IBM that originated with IBM development work associated with AIX and
Dynix, IBM's two UNIX products. SCO claimed each of these had a different set of issues. In order for copyright to be violated, several conditions must be met. First, the claimant must be able to show that they own the copyrights for the material in question. Second, all or a significant part of the source must be present in the infringing material. There must be enough similarity to show direct copying of material.
SVRx code allegedly in Linux The issue of ownership of the SVRx code base was discussed
above; the court ultimately found that Novell, not SCO, owned the copyrights. Besides that issue, portions of the SVRx code base that are covered by BSD copyrights or that are in the public domain. SCO's first public disclosure of what they claimed is infringing code was at its
SCO Forum conference in August 2003 at the
MGM Grand Las Vegas. The first, known as the
Berkeley Packet Filter, was distributed under the BSD License and is freely usable by anyone. The second example was related to memory allocation functions, also released under the BSD License. Even if this code had not been in the public domain, it was no longer in the Linux code base. SCO also claimed that code related to
application programming interfaces was copied from UNIX. However, this code and the underlying standards they describe are in the public domain and are also covered by rights USL sold to
The Open Group. A later claim was made to code segments related to
ELF file format standards. This material was developed by the Tool Interface Standard (TIS) Committee and placed in the public domain. SCO claimed that the TIS Committee had no authority to place ELF in the public domain, even though SCO's predecessor in interest was a member of the committee. SCO claimed that some other entities violated UNIX SVRx copyrights by putting UNIX code into Linux. They may or may not have brought this claim directly in any of their cases. The IBM case was about derivative works, not SVRx code (see below). The Novell case was about copyright ownership. DaimlerChrysler was about contractual compliance statements. In a suit against AutoZone, SCO claimed violation of UNIX SVRx copyrights by putting UNIX code into Linux. However, when objecting to AutoZone's request for a stay pending the IBM case, SCO apparently contradicted their written complaint, claiming instead that the case was entirely about AutoZone copying certain libraries (outside the Linux kernel) from a UNIX system to a Linux-based system to facilitate moving an internal application to the Linux platform faster; SCO's original complaint failed to mention these libraries. AutoZone denied having done this with UNIX libraries. The copyright issue was addressed directly in two of the cases. The first was by IBM in their counterclaim in
SCO v. IBM. IBM moved for dismissal, stating that IBM violated no copyrights in its Linux related activities. It is also addressed by Red Hat in the
Red Hat v. SCO case. Red Hat stated that SCO's statements about infringement in Linux were unproven and untrue, damaging to them and violates the
Lanham Act. Red Hat asked for an injunction to stop claims of violations without proof. They also asked for a judgment that they violated no SCO copyrights.
Allegations of reverse copying EWeek has reported allegations that SCO may have copied parts of the Linux kernel into SCO UNIX as part of its Linux Kernel Personality feature. If true, it would have meant that SCO is guilty of a breach of the Linux kernel copyrights. SCO denied the allegation, but according to Groklaw, one SCO employee confirmed the truth of it in a deposition.
IBM code in Linux SCO claimed a number of instances of IBM Linux code as breaches of contract. These examples include code related to
symmetric multiprocessing (SMP),
Journaled File System (JFS),
Read-copy-update (RCU) and
Non-Uniform Memory Access (NUMA). The code was not shown to be in the Linux kernel. This code was developed and copyrighted by IBM. IBM added features to AIX and Dynix. SCO claimed to have "control rights" to this due to their licensing agreements with IBM. SCO disavowed claiming that they own the code IBM wrote, rather comparing their "control rights" to an
easement, rights which SCO claimed to allow them to prohibit IBM from publicizing the code they wrote, even though IBM owned the copyrights. The claim was based on language in the original license agreement that required non-disclosure of the code and claim that all code developed by UNIX licensees that is used with the code under license be held in confidence. This claim is discussed above at
Control of derivative works.
SCO and the GPL Before changing their name to the SCO Group, the company was known as
Caldera International.
Caldera was one of the major distributors of Linux between 1994 and 1998. In August 1998, the company split into
Caldera Systems and
Caldera Thin Clients, with Caldera Systems taking over the Linux systems business and Caldera Thin Clients concentrating on the Thin Clients and embedded business. The parent and shell company Caldera, Inc. ceased to exist in 2000 after a settlement with Microsoft in the
Caldera v. Microsoft lawsuit. Caldera Systems was reorganized to become Caldera International in 2001, which was renamed to
The SCO Group in 2002. Some, like
Eben Moglen, have suggested that because Caldera distributed the allegedly infringing code under the
GNU General Public License (GPL), that this act would license any proprietary code in Linux. SCO stated that they did not know their own code was in Linux, so releasing it under the GPL did not count. However, as late as July and August 2006, long after that claim was made, SCO continued to distribute ELF files (the subject of one of SCO's claims regarding SVRx) under the GPL. SCO also claimed, in early stages of the litigation, that the GPL is invalid and non-binding and legally unenforceable. In response, supporters of the GPL, such as Eben Moglen, claimed that SCO's right to distribute Linux relied upon the GPL being a valid copyright license. Later court filings by the SCO Group in
SCO v. IBM use SCO's alleged compliance with the GPL as a defense to IBM's counterclaims. SCO attempted to make the GPL an issue in
SCO v. IBM. Under U.S. copyright law, distribution of creative works whose copyright is owned by another party is illegal without permission from the copyright owner, usually in the form of a license; the GPL is such a license, and thus allows distribution, but only under limited conditions. Since IBM released the relevant code under the terms of the GPL, it said that the only permission that SCO has to copy and distribute IBM's code in Linux is under the terms and conditions of the GPL, one of which requires the distributor to "accept" the GPL. IBM said that SCO violated the GPL by denouncing the GPL's validity, and by claiming that the GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws. IBM also said that SCO's SCOsource program is incompatible with the requirement that redistributions of GPLed works must be free of copyright licensing fees (fees may be charged for the acts of duplication and support). IBM brought counterclaims alleging that SCO has violated the GPL and breached IBM's copyrights by collecting licensing fees while distributing IBM's copyrighted material. ==Status of lawsuits==