On the day that IBM
and SCO Group
escalated their ongoing legal battle of misappropriated source code, SCO Group received some surprising backing of its claims that the 2.4 version of the Linux kernel contains code copied from SCO’s Unix System V kernel.
“Our review of source code and documents appears supportive of SCO claims,
though we are not legal experts and IP matters are not always transparent,”
Deutsche Bank Securities analyst Brian Skiba said in a research note
Thursday after visiting SCO’s headquarters in Lindon, Utah, Wednesday.
“A direct and near-exact duplicate of source code appears between the Linux
2.4 kernel and Unix System V kernel in routines shown to us.”
Skiba agreed to a non-disclosure agreement in order to view SCO’s evidence. He noted that he does not own SCO stock, nor does Deutsche Bank have a banking relationship with SCO, though he did say that Deutsche Bank’s asset management firm may own some SCO stock.
The report comes on the same day that IBM filed its own counterclaims lawsuit in a Utah court against SCO.
Skiba also pointed out that none of the allegedly copied code shown to him
was contributed by IBM.
“They said it was from another hardware vendor, but they didn’t say who,”
Skiba told internetnews.com. “I think it’s clear that they didn’t
He added, “We didn’t discuss it, but I didn’t get the feeling that the
issues with IBM were related to literal copying. I think the issue with IBM
is predominantly around derivative work.”
SCO (formerly Caldera), a founding member of the UnitedLinux group and
until recently a Linux distributor, upset the Linux party in March when it
turned its legal guns on IBM
with a $1 billion (now raised
to $3 billion) lawsuit
alleging breach of contract and the sharing of trade secrets.
On March 6, the company sent a letter to IBM Chairman and CEO Sam
Palmisano, warning him that IBM had allegedly breached its contract with
SCO by contributing portions of its Unix-based AIX code to the open source
movement, and by introducing concepts from Project Monterey, a joint effort
by SCO and IBM to develop a 64-bit Unix-based operating system for
Intel-based processing platforms, into Linux. IBM scrapped Project Monterey
in May 2001.
SCO claims the AIX code IBM contributed is a derivative work of SCO’s Unix
System V and UnixWare intellectual property, making Linux an “unauthorized
derivative” of Unix, according to SCO. The firm has also claimed that the
code, and possibly code from other Unix vendors which have contracts with
SCO, was foundational in allowing Linux to make the leap to Symmetrical
Multi-Processing (SMP) capabilities, which are essential to making Linux an
enterprise-grade operating system.
launched its own suit against SCO this week in an attempt to protect Linux, while
IBM Thursday unveiled a countersuit of its own.
But so far, SCO has yet to take legal action for the alleged copied code in
“The purpose of the literal copying display is really for CIOs to evaluate
whether there’s potential IP violation that they may be liable for,” Skiba
Still, Skiba said he was not passing judgment on the case. Instead, he is
concerned with whether the case will cause CIOs to rethink the “torrid
pace” with which they are adopting Linux.
“The whole legal debate over derivative work is going to be something that
the courts are going to decide,” he said. “The question is, will there be
any degree of momentary pause in Linux adoption?”
He added, “If that’s the case, then it’s going to be good for Sun and
Microsoft and it’s bad for Red Hat and some of the other guys.”
But so far, most CIOs have not really changed their plans, Skiba said.
“At this point it hasn’t really hit the radar,” he said. “They’re aware of
the suit but it hasn’t materially changed their plans at this point. Ninety
percent of the people say ‘IBM is a bunch of smart guys, they’re a credible
company. If they say it’s okay, then it’s okay, despite the fact that they
won’t indemnify us.’ IBM lends credibility to Linux, clearly, as well as
That’s born out in a survey recently completed by Evans Data Corp. The survey found
that few Linux developers are troubled by SCO’s assault on Linux.
“SCO has not done its job in making its case,” Nicholas Petreley, Linux analyst with Evans Data, noting that recently released Summer 2003 Linux Development Survey showed that Linux adoption has accelerated, not declined, since SCO began its crusade against IBM.
“The best it can do is pull aside some people in private, make them sign an NDA, and show them some code out of context. That’s not a very convincing case,” Petreley told
“The SCO threat seems to have generated far more heat than light,” Nicholas
Petreley, Evans Data’s Linux analyst, said in his analysis of the survey.
“Fully 88 percent of developers responding say that the SCO vs. IBM
intellectual property lawsuit against Linux will have absolutely no effect
on their plans, probably no effect, or they have no opinion on the matter.
Only 6 percent are certain the SCO lawsuit will affect their plans, and
another 6 percent think the lawsuit will probably affect their plans.
Obviously, the SCO strategy of keeping its evidence against IBM secret (or
made available only through second-hand sources who are under
non-disclosure agreements as to what they can report) has limited impact of
its litigation threats.”
Specifically, 45.5 percent of respondents said the suit would “absolutely
not” have an effect on their plans, 20 percent said “probably not,” and
16.1 percent said “no opinion.”
Evans Data sent invitations to participate in the survey to developers from
the EDC International Panel of Developers, and to various opt-in lists. EDC
surveyed 435 developers online.
“People are adopting Linux more and more,” Petreley said. “They’re
switching from Windows to Linux faster. You’d expect that to have slowed
down a little bit if it were to be affected by the SCO lawsuit, and the
numbers just don’t show that kind of slowdown.”