Comments from Frankston, Reed, and Friends
Friday, June 20, 2003
DanB at 11:38 PM [url]:
Some links in reference to the SCO / IBM lawsuit
As a LINUX user and a person interested in computer software law, I've been following the SCO / IBM lawsuit. Until recently, much of what we saw in the press was name calling and little substance to understand what really will be at issue. This week, though, SCO started letting the public know some of the areas that show the copying they complain about.
The one most mentioned was the RCU (Read-Copy Update) code. This is a locking method (an important thing to any operating system). There were links provided in the news stories (such as the one on News.com) to articles about RCU, such as one on SourceForge.net. That article says that "Read-Copy Update was originally designed for DYNIX/ptx, a UNIX operating system from Sequent Computer Systems Inc., now a part of IBM. Similar methods were also used for Tornado and K42 OS projects at University of Toronto and IBM Research."
Hmm. So Sequent (now part of IBM) wrote the code at issue.
So the question is, to my "not a lawyer" mind, "If someone adds something to their copy of licensed UNIX, does it become part of the copyrighted material owned by the owner of the original UNIX it was added to? Does the owner of the original UNIX now control that new code, too?" I understand that, as copyright law is normally understood, you can't take your additions, along with the UNIX you added them to, and claim ownership of the whole thing. But, if you take your additions alone, are they now "tainted" and not yours to do with as you wish (such as to donate them to the GPL'ed LINUX)?
GPL, as I understand it, does not "taint" in this way. Adding something to a GPL product adds the GPL to that material so it has to be freely distributable, but it does not transfer ownership of the original work to the creator of the original GPL'ed product. "...the intent is to exercise the right to control the distribution of derivative or collective works based on the Program" not transfer ownership.
So, for IBM and UNIX, with respect to RCU, does the contract it signed for UNIX say that they transfer ownership of the additions?
Looking at the Agreements (see SCO's SCOSource Home Page) you find the following (there is probably more -- I haven't read it all):
In Exhibit A, the original Agreement with AT&T, it says in paragraph 2.01: "Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT." The question is, what does "treated hereunder as part of the original" mean? Is that for royalty purposes? Does this transfer all of the rights? Does this apply to only the entire resulting material, i.e., the new only when it's combined with the old? I am not a lawyer (IANAL), but I assume this will probably be argued. (Why not? There are billions of dollars at stake...)
In paragraph 2.05(b) of Exhibit B, the AT&T Sublicensing Agreement, it talks about the need for separate agreements to transfer rights, title, and interest to modifications in certain situations.
In A.9. of Exhibit C, a further agreement with AT&T, it says: "Nothing in this agreement shall prevent LICENSEE from developing or marketing products or services employing ideas, concepts, know-how or techniques relating to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into such product or in connection with any such service and employees of LICENSEE shall not refer to the physical documents and materials comprising SOFTWARE PRODUCTS subject to this Agreement when they are developing any such products or service or providing any such service. If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE's obligations under this section shall not apply to such information after such time." Section B. 5. goes on to amend 2.05(b) of last Agreement, again showing that modifications may be owned by modifier, and that ownership requires contract saying it is transferred. This says you can't copy code, but does that apply to code you wrote yourself? Does "becomes available without restriction to the general public" include the times when others break a contract, so the misdeeds of others let IBM off the hook?
In Exhibit D, called Amendment No. X between IBM, Novell, and old SCO, it says: "IBM will have the irrevocable, fully paid-up, perpetual right to exercise all of its rights under the Related Agreements...the irrevocable nature of the above rights will in no way be construed to limit Novell's or SCO's rights to enjoin or otherwise prohibit IBM from violating any and all of Novell's or SCO's rights..."
I guess some of what we need to figure out is in here. I thought posting this information would make for fun reading for others who are interested in this lawsuit but aren't used to skimming through all the legal material.