I've been struggling for days trying to do such a chart by hand, and the struggle was because the paragraph numbers were not consistent in the versions, so there was a lot of up and down and back and forth, and anxiety about whether I was getting it right or was missing something. And suddenly, up pops Stephan with a computer solution. So here is the result. This is what computers were born for, so to speak, and I am very grateful to Stephan for taking the time to do this for Groklaw.
I find charts like this very, very helpful in figuring out what is going on. For example, it wasn't until I started working on this chart that I noticed that SCO's claim about the OpenServer shared libraries, numbers 44-47 of their Amended Complaint, has completely disappeared from their 2nd Amended Complaint.
Check the originals for anything that matters, as always, and if you see any errors, do tell, so we can perfect this process. We will, obviously, do this regularly from now on, now that Stephan has written this program for us.
Note that all changes are in red, whether text that was dropped or new material, so you can quickly see all the changes just by looking for the red text. You can find SCO's Amended Complaint [as PDF, its 2nd Amended Complaint [as PDF], and IBM's 2nd Amended Answer [as PDF] on the Legal Docs page, where we keep all the legal documents in the case, and a thank you to grouch for keeping that page up to date. We will be reorganizing it, now that it's getting so complex, to try to make it easier to find what you need. Stephan has designed a graphic that will be ready soon that I think will also help, when it's done.
SCO's Amended Complaint
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SCO's Second Amended Complaint
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IBM's Answer to SCO's Second Amended Complaint
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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.
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1. UNIX is a computer operating system program and related
software and documentation originally
developed by AT&T Bell Laboratories (“AT&T”). UNIX is
widely used in the corporate, or “enterprise,” computing
environment.
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1. Denies the averments of paragraph 1.
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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.
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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.
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2. Denies the averments of paragraph 2 as they relate to IBM,
except refers to the referenced licenses for their contents and
states that IBM is without information sufficient to form a belief
as to the truth of the averments as they relate to any other
person or entity.
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3. A variant or clone of UNIX currently exists in the computer
marketplace called “Linux.” Linux is, in material part, based
upon UNIX source code and methods, particularly as related to
enterprise computing methods found in Linux
2.4.x releases and the current development kernel, Linux 2.5.x.
Significantly, Linux is distributed without a licensing fee and
without proprietary rights of ownership or confidentiality.
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3. A variant or clone of UNIX currently exists in the computer
marketplace called “Linux.” Linux is, in material part, based
upon UNIX source code and methods.
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3. Denies the averments of paragraph 3.
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4. The UNIX software distribution vendors, such as IBM, are
contractually and legally prohibited from giving away or
disclosing proprietary UNIX source code and methods for external
business purposes, such as contributions to the
Linux community or otherwise using
UNIX for the benefit of others. This prohibition extends to
derivative work products that are modifications of, or based on,
UNIX System V source code or technology. IBM and
certain other UNIX software distributors are violating this
prohibition, en masse, as though no prohibition or
proprietary restrictions exist at all with respect to the UNIX
technology. As a result of IBM’s wholesale disregard of its
contractual and legal obligations to SCO, Linux 2.4.x and the
development Linux kernel, 2.5.x, are filled
with UNIX source code, derivative works and
methods. As such, Linux 2.4.x and Linux 2.5.x are
unauthorized derivatives of UNIX System V.
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4. The UNIX software distribution vendors, such as IBM, are
contractually and legally prohibited from giving away or
disclosing proprietary UNIX source code and methods for external
business purposes, such as contributions to Linux,
or from otherwise using UNIX for the benefit of others. This
prohibition extends to derivative work products that are
modifications of, or derivative works
based on, UNIX System V source code or technology. IBM is
violating this prohibition, en masse, as though no
prohibition or proprietary restrictions exist at all with respect
to the UNIX technology. As a result of IBM’s wholesale disregard
of its contractual and legal obligations to SCO, Linux 2.4.x and
2.6.x and the development Linux
kernel, 2.5.x, are replete with
protected technology. As such, the
Linux 2.4.x and Linux 2.5.x and 2.6.x
kernels are unauthorized derivatives of UNIX System V.
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4. Denies the averments of paragraph 4 as they relate to IBM,
and states that IBM is without information sufficient to form a
belief as to the truth of the averments as they relate to any
other person or entity.
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5. This case is not about the debate
about the relative merits of proprietary versus open source
software. Nor is this case about IBM's right to develop and
promote open source software if it decides to do so in furtherance
of its independent business objectives, so long as it does so
without SCO's proprietary information. This case is, and is only,
about the right of SCO not to have its proprietary software
misappropriated and misused in violation of its written agreements
and well-settled law.
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5. States that the averments of paragraph 5 purport to
characterize SCO's reasons for filing the lawsuit, and do not
require a response. To the extent a response is required, IBM
denies the averments.
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5. As set forth in more detail below, IBM has breached its
obligations to SCO, induced and encouraged others to breach their
obligations to SCO, interfered with SCO’s business, and engaged
in unfair competition with SCO, including by:
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6. As set forth in more detail below, IBM has breached its
obligations to SCO, induced and encouraged others to breach their
obligations to SCO, interfered with SCO’s business, and engaged
in unfair competition with SCO, including by:
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6. Denies the averments of paragraph 6.
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a) misusing UNIX software licensed by SCO to IBM and Sequent;
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a) misusing UNIX software licensed by SCO to IBM and Sequent;
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b) inducing, encouraging, and enabling others to misuse and
misappropriate SCO’s proprietary software; and
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b) inducing, encouraging, and enabling others to misuse and
misappropriate SCO’s proprietary software; and
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c) incorporating (and inducing, encouraging, and enabling
others to incorporate) SCO’s proprietary software into Linux
open source software offerings.
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c) incorporating (and inducing, encouraging, and enabling
others to incorporate) SCO’s proprietary software into Linux
open source software offerings.
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6. As a result of these breaches, SCO sent a notice of
termination to Mr. Sam Palmisano, the Chief Executive Officer of
IBM on March 6, 2003. The termination notice specified that,
pursuant to SCO’s contractual rights under controlling
agreements, IBM’s right to use or distribute any software
product based on UNIX System V technology, including its own
version of UNIX known as “AIX,” would be terminated on June
13, 2003, unless such breaches were reasonably cured prior to that
time.
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7. As a result of these breaches, SCO sent a notice of
termination to Mr. Sam Palmisano, the Chief Executive Officer of
IBM on March 6, 2003. The termination notice specified that,
pursuant to SCO’s contractual rights under controlling
agreements, IBM’s right to use or distribute any software
product based on UNIX System V technology, including its own
version of UNIX known as “AIX,” would be terminated on June
13, 2003, unless such breaches were reasonably cured prior to that
time.
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7. Denies the averments of paragraph 7, except refers to the
referenced documents for its contents.
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7. The termination notice was based, in part, on IBM’s
self-proclaimed contributions of AIX source code to Linux, and use
of UNIX/AIX methods for accelerating the development of Linux in
contravention of IBM’s contractual obligations to SCO.
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8. The termination notice was based, in part, on IBM’s
self-proclaimed contributions of AIX source code to Linux, and use
of UNIX/AIX methods for accelerating the development of Linux in
contravention of IBM’s contractual obligations to SCO.
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8. Denies the averments of paragraph 8, except refers to the
referenced documents for its contents.
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8. Pursuant to its rights under the controlling agreements, IBM
was entitled to 100 days to cure its underlying contractual
breaches, provided it was willing and able to do so. Both parties
were contractually required to “exert their mutual good faith
best efforts to resolve any alleged breach short of termination.”
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9. Pursuant to its rights under the controlling agreements, IBM
was entitled to 100 days to cure its underlying contractual
breaches, provided it was willing and able to do so. Both parties
were contractually required to “exert their mutual good faith
best efforts to resolve any alleged breach short of termination.”
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9. Denies the averments of paragraph 9, except refers to the
referenced documents for its contents.
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9. To that end, SCO did everything reasonably in its power to
exert a good faith effort to resolve the termination of IBM’s
UNIX contract rights. Conversely, during the 100-day period, IBM
did not set forth a single proposal or idea for cure.
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10. To that end, SCO did everything reasonably in its power to
exert a good faith effort to resolve the termination of IBM’s
UNIX contract rights. Conversely, during the 100-day period, IBM
did not set forth a single proposal or idea for cure.
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10. Denies the averments of paragraph 10.
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10. SCO has therefore terminated IBM’s right to use any part
of the UNIX System V source code, including its derivative AIX,
effective as of June 13, 2003 (the “AIX Termination Date”).
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11. SCO has therefore terminated IBM’s right to use any part
of the UNIX System V source code, including its derivative AIX,
effective as of June 13, 2003 (the “AIX Termination Date”).
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11. Denies the averments of paragraph 11.
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12. For similar reasons and following a
similar process, SCO has terminated IBM's right to use any part of
Dynix/ptx, also a derivative work of UNIX System V, which was
developed under license with SCO, effective as of July 30, 2003
(the "Dynix/ptx Termination Date").
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12. Denies the averments of paragraph 12.
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11. As of the AIX Termination Date, IBM is contractually
obligated to discontinue use of and return or destroy any and all
copies of the Software Products defined in the controlling
agreements, which include UNIX System V source code and all its
derivatives, including AIX.
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13. As of the AIX Termination Date, IBM is contractually
obligated to discontinue use of and return or destroy any and all
copies of the Software Products defined in the controlling
agreements, which include UNIX System V source code and all its
derivatives, including AIX.
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13. Denies the averments of paragraph 13.
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14. As of the Dynix/ptx Termination Date,
IBM is contractually obligated to discontinue use of and return or
destroy any and all copies of the Software Products defined in the
controlling agreements, which include UNIX System V source code
and all its derivatives, including Dynix/ptx.
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14. Denies the averments of paragraph 14.
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Parties, Jurisdiction and Venue
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Parties, Jurisdiction and Venue
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PARTIES, JURISDICTION AND VENUE
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12. Plaintiff SCO is a Delaware corporation with its principal
place of business in Utah County, State of Utah.
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15. Plaintiff SCO is a Delaware corporation with its principal
place of business in Utah County, State of Utah.
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15. Denies the averments of paragraph 15.
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13. Defendant IBM is a New York corporation with its principal
place of business in the State of New York.
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16. Defendant IBM is a New York corporation with its principal
place of business in the State of New York.
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16. Denies the averments of paragraph 16.
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14. Sequent Computer Systems, Inc. (“Sequent”) was formerly
an Oregon corporation that contracted with SCO’s predecessor in
interest, AT&T. Sequent was subsequently merged into IBM in a
stock transaction.
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17. Sequent Computer Systems, Inc. (“Sequent”) was formerly
an Oregon corporation that contracted with SCO’s predecessor in
interest, AT&T. Sequent was subsequently merged into IBM in a
stock transaction.
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17. Denies the averments of paragraph 17, except admits that
Sequent was formerly an Oregon corporation which was subsequently
merged into IBM.
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15. This Court has subject matter jurisdiction pursuant to 28
U.S.C. §1332 in that diversity
of citizenship exists between the
parties and the amount in controversy exceeds $75,000, exclusive
of interest and costs.
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18. This Court has subject matter jurisdiction pursuant to 28
U.S.C. §1331, 1332, 1338
and 1367. There is complete diversity of citizenship
between the parties and the amount in controversy exceeds $75,000,
exclusive of interest and costs, and the
copyright claims arise under federal law.
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18. States that the averments of paragraph 18 purport to state
a legal conclusion and do not require a response.
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16. This Court has in personam
jurisdiction over IBM pursuant to Utah Code Ann.
§78-27-24 on the bases that IBM is (a) transacting business
within this State, (b) contracting to provide goods and services
within this State and (c) causing tortious injury and breach of
contract within this State.
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17. Venue is properly situated in this District pursuant to 28
U.S.C. §1391 in that IBM maintains a
general business office in this District and a substantial part of
the events giving rise to the claims alleged herein occurred in
this District.
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19. Venue is properly situated in this District pursuant to 28
U.S.C. §§1391 and
1400.
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19. Denies the averments of paragraph 19.
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Background Facts
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Background Facts
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BACKGROUND
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The UNIX Operating System
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The UNIX Operating System
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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.
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20. 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.
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20. Denies the averments of paragraph 20, especially insofar as
they purport to describe all operating systems or purport to
identify "UNIX" as a single operating system.
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19. By way of example, in the personal computing market,
Microsoft Windows is the best-known operating system. The Windows
operating system was designed to operate on computer processors
(“chips”) built by Intel. Thus, Windows serves as the link
between Intel-based processors and the various software
applications that run on personal computers.
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21. By way of example, in the personal computing market,
Microsoft Windows is the best-known operating system. The Windows
operating system was designed to operate on computer processors
(“chips”) built by Intel. Thus, Windows serves as the link
between Intel-based processors and the various software
applications that run on personal computers.
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21. States that it is without information sufficient to form a
belief as to the truths of the averments of paragraph 21, except
denies the "market" averments and that Windows serves as
"the" link described in the averments.
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20. In the business computing environment for the Fortune 1000
and other large corporations (often called the “enterprise”
environment), UNIX is widely used.
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22. In the business computing environment for the Fortune 1000
and other large corporations (often called the “enterprise”
environment), UNIX is widely used. As
detailed below, before IBM's involvement in and improper
contributions to Linux, Fortune 1000 companies were not using
Linux for mission critical applications, such as wire transfers
and satellite control systems. Linux, as an operating system,
simply was incapable of performing such high level enterprise
computing beforre IBM's improper contributions to Linux.
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22. Denies the averments of paragraph 22 as to IBM and states
that it is without information sufficient to form a belief as to
the truth of the averments of paragraph 22 as they relate to other
parties.
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21. The UNIX operating system was originally built by Dennis
Ritchie, Ken Thompson and other software engineers at AT&T
Bell Laboratories. After successful
in-house use of the UNIX software, AT&T began to license UNIX
as a commercial product for use in enterprise applications by
other large companies.
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23. The UNIX operating system was originally built by Dennis
Ritchie, Ken Thompson and other software engineers at AT&T.
After successful in-house use of the UNIX software, AT&T began
to license UNIX as a commercial product for use in enterprise
applications by other large companies.
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23. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 23.
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22. Over the years, AT&T Technologies, Inc., a wholly owned
subsidiary of AT&T, and its related companies licensed UNIX
for widespread enterprise use. IBM, Hewlett-Packard, Inc. (“HP”),
Sun Microsystems, Inc. (“Sun”), Silicon Graphics, Inc. (“SGI”)
and Sequent became some of the principal United States-based UNIX
licensees, among many others.
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24. Over the years, AT&T Technologies, Inc. ("AT&T
Technologies"), a wholly owned subsidiary of AT&T,
and its related companies licensed UNIX for widespread enterprise
use. IBM, Hewlett-Packard, Inc. (“HP”), Sun Microsystems, Inc.
(“Sun”), Silicon Graphics, Inc. (“SGI”) and Sequent became
some of the principal United States-based UNIX licensees, among
many others.
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24. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 24, except
admits that AT&T Technologies, Inc. licensed certain software
to IBM and Sequent.
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23. IBM, HP, Sun, SGI and the other major UNIX vendors each
modified UNIX to operate on their own processors. Thus, for
example, the operating system known as “HP-UX” is HP’s
version of UNIX. HP-UX is a modification of and derivative work
based on UNIX System V source code.
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25. IBM, HP, Sun, SGI and the other major UNIX vendors each
modified UNIX to operate on their own processors. Thus, for
example, the operating system known as “HP-UX” is HP’s
version of UNIX. HP-UX is a modification of,
and derivative work based on, UNIX
System V source code.
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25. Denies the averments of paragraph 25 as they relate to IBM,
except admits that IBM develops, manufactures and markets a UNIX
product and states that it is without information sufficient to
form a belief as to the truth of the averments as they relate to
any other person or entity.
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24. Similarly, the operating system known as Solaris is Sun’s
version of UNIX. Solaris is a modification of, and derivative work
based on, UNIX System V source code.
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26. Similarly, the operating system known as Solaris is Sun’s
version of UNIX. Solaris is a modification of, and derivative work
based on, UNIX System V source code.
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26. States that it is without sufficient information to form a belief as to
the truth of the averments of paragraph 26.
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25. SGI’s UNIX-based operating system is known as “IRIX.”
IRIX is a modification of, and derivative work based on, UNIX
System V source code.
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27. SGI’s UNIX-based operating system is known as “IRIX.”
IRIX is a modification of, and derivative work based on, UNIX
System V source code.
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27. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 27.
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26. IBM’s UNIX-based operating system is known as “AIX.”
AIX is a modification of, and derivative work based on, UNIX
System V source code.
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28. IBM’s UNIX-based operating system is known as “AIX.”
AIX is a modification of, and derivative work based on, UNIX
System V source code.
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28. Denies the averments of paragraph 28, except admits that
IBM markets a UNIX product under the trade name "AIX".
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27. Sequent’s UNIX-based operating system is known as
“DYNIX/ptx.” DYNIX/ptx is a modification of, and derivative
work based on, UNIX System V source code.
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29. Sequent’s UNIX-based operating system is known as
“DYNIX/ptx.” DYNIX/ptx is a modification of, and derivative
work based on, UNIX System V source code.
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29. Denies the averments of paragraph 29, except admits that
Sequent marketed a UNIX product under the trade name "DYNIX/ptx".
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28. The various identified versions of UNIX are sometimes
referred to as UNIX “flavors.” All commercial UNIX “flavors”
in use today are modifications of and derivative works based on
the UNIX System V Technology (“System V Technology”). Were
it not for UNIX System V, there would be no UNIX technology or
derivative works available for IBM and others to copy into Linux.
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30. The various identified versions of UNIX are sometimes
referred to as UNIX “flavors.” All commercial UNIX “flavors”
in use today are modifications of,
and derivative works based on, the
UNIX System V Technology (“System V Technology”).
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30. Denies the averments of paragrpah 30 as they relate to IBM
and Sequent or to AIX and Dynix/ptx, except states that IBM
develops, manufactures and markets a product under the name
"Dynix/ptx". IBM states that it is without information
sufficient to form a belief as to the truth of the averments as
they relate to any other person or entity.
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29. SCO is the sole and exclusive owner of all Software and
Sublicensing Agreements that control use, distribution and
sublicensing of UNIX System V and all modifications thereof and
derivative works based thereon. SCO is also the sole and exclusive
owner of copyrights related to UNIX System V source code and
documentation and peripheral code and systems related thereto.
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31. SCO is the sole and exclusive owner of all Software and
Sublicensing Agreements that control use, distribution and
sublicensing of UNIX System V and all modifications thereof and
derivative works based thereon. SCO is also the sole and exclusive
owner of copyrights related to UNIX System V source code and
documentation and peripheral code and systems related thereto.
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31. Denies the averments of paragraph 31.
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30. During the 1990s the enterprise computing market for
high-performance workstation computers came to be dominated by
UNIX and the primary UNIX vendors identified above, each supplying
its own version of the UNIX operating system based on UNIX System
V Technology. UNIX became synonymous
with “workstation” computers that typically operated on a RISC
processing platform.
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32. During the 1990s the enterprise computing market for
high-performance workstation computers came to be dominated by
UNIX and the primary UNIX vendors identified above, each supplying
its own version of the UNIX operating system based on UNIX System
V pursuant to the license agreements with
SCO's predecessors in interest. UNIX became synonymous with
“workstation” computers that typically operated on a RISC
processing platform.
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32. Denies the averments of paragraph 32, except states that it
is without information sufficient to form a belief as to the truth
of the averments of the second sentence.
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31. The RISC processing platform provides high-power computing
capabilities at a relatively higher price for “workstation”
computing. The alternative to “workstation” computing is
commonly known as “desktop” computing on personal computers.
The operating system market for “desktop” personal computers
is dominated by Microsoft Corporation and its various
Windows-based operating system products. The reason for this
distinction is that most desktop computers (PC’s) are designed
to operate on Intel and Intel-compatible computing platforms. Most
workstations are designed to operate on variants of RISC
processing platforms and RISC-compatible computing platforms. PC
systems and RISC systems are not compatible with each other. Thus,
most versions of UNIX will not operate on Intel-based PC’s for
desktop computing; and Windows will not operate on RISC-based
workstations for enterprise computing.
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33. The RISC processing platform provides high-power computing
capabilities at a relatively higher price for “workstation”
computing. The alternative to “workstation” computing is
commonly known as “desktop” computing on personal computers.
The operating system market for “desktop” personal computers
is dominated by Microsoft Corporation and its various
Windows-based operating system products. The reason for this
distinction is that most desktop computers (PC’s) are designed
to operate on Intel and Intel-compatible computing platforms. Most
workstations are designed to operate on variants of RISC
processing platforms and RISC-compatible computing platforms. PC
systems and RISC systems are not hardware
compatible with each other. Thus, most versions of UNIX will not
operate on Intel-based PC’s for desktop computing; and Windows
will not operate on RISC-based workstations for enterprise
computing.
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33. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 33, except
denies the "market" averments.
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32. Most of the primary UNIX vendors identified above did not
attempt to develop a UNIX “flavor” to operate on an
Intel-based processor chip set. This is because the earlier Intel
processors were considered to have inadequate processing power for
use in the more demanding enterprise market applications.
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34. Most of the primary UNIX vendors identified above did not
attempt to develop a UNIX “flavor” to operate on an
Intel-based processor chip set. This is because the earlier Intel
processors were considered to have inadequate processing power for
use in the more demanding enterprise market applications.
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34. Denies the averments of paragraph 34.
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SCO’s Creation of a Market for Intel – The Genesis of
SCO OpenServer
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SCO’s Creation of a Market for Intel – The Genesis of
SCO OpenServer
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33. As computers grew in popularity to perform business
functions, the processing power of Intel-based processor chips
also began to increase dramatically. Consistent with Intel founder
Gordon Moore’s prediction, computer chips remained inexpensive
while exponentially increasing in power and performance.
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35. As computers grew in popularity to perform business
functions, the processing power of Intel-based processor chips
also began to increase dramatically. Consistent with Intel founder
Gordon Moore’s prediction, computer chips remained inexpensive
while exponentially increasing in power and performance.
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35. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 35.
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34. Seeing this emerging trend, it became evident to SCO that
Intel chips would gradually gain widespread acceptance for use in
the enterprise marketplace.
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36. Seeing this emerging trend, it became evident to SCO that
Intel chips would gradually gain widespread acceptance for use in
the enterprise marketplace.
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36. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 36.
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35. Therefore, while other major UNIX vendors modified UNIX for
their own respective RISC-based
computing platforms, SCO developed and licensed the UNIX-based
operating system for Intel-based processors for enterprise use
that is now known as “SCO OpenServer.”
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37. Therefore, while other major UNIX vendors modified UNIX for
their respective RISC-based computing platforms, SCO developed and
licensed the UNIX-based operating system for Intel-based
processors for enterprise use that is now known as “SCO
OpenServer.”
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37. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 37.
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36. SCO’s early engineers faced difficult design challenges
in modifying UNIX for effective use on an Intel processing
platform. The principal design constraint centered around
the limited processing power the Intel chip possessed in the early
1980’s. The Intel chip (designed as it was for personal
computers) was not nearly as powerful as the enterprise chips used
by IBM, Sun, SGI and others in their respective UNIX offerings.
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38. SCO’s early engineers faced difficult design challenges
in modifying UNIX for effective use on an Intel processing
platform. The principal design constraint centered on
the limited processing power the Intel chip possessed in the early
1980’s. The Intel chip (designed as it was for personal
computers) was not nearly as powerful as the enterprise RISC
chips used by IBM, Sun, SGI and others in their respective UNIX
offerings.
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38. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 38, except
admits that IBM POWER chips are currently more powerful than the
Intel chips described in those averments.
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37. Based on the early design
constraint of Intel’s limited processing power, SCO found an
appropriate enterprise market niche for the early versions of SCO
OpenServer—single-purpose
applications such as point-of-sale control, inventory control and
transactions processing, with the highest
possible reliability. Intel processors
were fully capable of performing these
relatively simple, repetitive tasks,
and could do so at a lower cost and as reliably as the more
powerful enterprise processing platforms sold by the
other UNIX vendors, such as Sun and IBM.
|
39. Despite the early design
constraint of Intel’s limited processing power, SCO
was able to develop a version of UNIX for Intel PCs with full
multi-processing and multi-user support as well as excellent
reliability. A PC running SCO's OpenServer UNIX was a much more
viable business application platform than the same PC running any
available version of Windows. SCO found an appropriate
enterprise market niche for the early versions of SCO OpenServer
as a highly reliable platform for business
critical applications such as point-of-sale control,
inventory control and transactions processing. Intel systems
running UNIX were fully capable of performing multi-user
business applications and could do so at a much lower cost
(and just
as reliably) as the proprietary
mini-computer hardware sold by other UNIX vendors, such as
Sun and IBM.
|
39. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 39.
|
38. One example of a customer well suited to the earlier
version of SCO OpenServer software is McDonald’s Corp.
McDonald’s has thousands of stores worldwide and needs all
stores to operate on an integrated computing platform for ease of
use, immediate access to information and uniformity. However, the
actual computing requirements for each individual McDonald’s
location are functionally simple—sales need to be tracked and
recorded, and inventory functions need to be linked to sales. SCO
OpenServer reliably fulfills McDonald’s computing requirements
at reduced cost.
|
40. One example of a customer well suited to the earlier
version of SCO OpenServer software is McDonald’s Corp.
McDonald’s has thousands of stores worldwide and needs all
stores to operate on an integrated computing platform for ease of
use, immediate access to information and uniformity. However, the
actual computing requirements for each individual McDonald’s
location are functionally simple—sales need to be tracked and
recorded, and inventory functions need to be linked to sales. SCO
OpenServer reliably fulfills McDonald’s computing requirements
at reduced cost.
|
40. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 40.
|
39. SCO’s business model for SCO OpenServer provides
enterprise customers the reliability, extensibility (ease of
adding or changing functionality), scalability (ease of adding
processors or servers to increase processing power) and security
of UNIX—but on inexpensive Intel processor chips. This
combination allowed customers to perform an extremely high number
of transactions and, at the same time, gather and present the
information from those transactions in an economical and useful
way for enterprise decision makers.
|
41. SCO’s business model for SCO OpenServer provides
enterprise customers the reliability, extensibility (ease of
adding or changing functionality), scalability (ease of adding
processors or servers to increase processing power) and security
of UNIX—but on inexpensive Intel processor chips. This
combination allowed customers to perform an extremely high number
of transactions and, at the same time, gather and present the
information from those transactions in an economical and useful
way for enterprise decision makers.
|
41. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 41.
|
40. The simplicity and power of this “UNIX on Intel”
business model helped SCO grow rapidly. SCO gained other large
enterprise customers such as CitiGroup, K-Mart, Cendant, Target
Stores, Texas Instruments, Walgreens, Merck, Sherwin Williams,
Radio Shack, Auto Zone, British Petroleum, Papa John’s Pizza,
Costco and many others.
|
42. The simplicity and power of this “UNIX on Intel”
business model helped SCO grow rapidly. SCO gained other large
enterprise customers such as CitiGroup, K-Mart, Cendant, Target
Stores, Texas Instruments, Walgreens, Merck, Sherwin Williams,
Radio Shack, Auto Zone, British Petroleum, Papa John’s Pizza,
Costco and many others.
|
42. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 42.
|
41. As Intel’s prominence grew in the enterprise computing
market, SCO’s early version of OpenServer also grew into the
operating system of choice for enterprise customers who wanted an
Intel-based computing solution for a high volume of repetitive,
simple computing transactions.
|
43. As Intel’s prominence grew in the enterprise computing
market, SCO’s early version of OpenServer also grew into the
operating system of choice for enterprise customers who wanted an
Intel-based computing solution for a high volume of repetitive,
simple computing transactions.
|
43. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 43.
|
42. SCO OpenServer is based on the original UNIX Software Code
developed by AT&T, but was modified by SCO for the
functionality described above. Thus, while performing
single-function applications, SCO OpenServer did so, and continues
to do so, with the 99.999% reliability of UNIX.
|
44. SCO OpenServer is based on the original UNIX Software Code
developed by AT&T, but was modified by SCO for the
functionality described above. Thus, while performing
single-function applications, SCO OpenServer did so, and continues
to do so, with the 99.999% reliability of UNIX.
|
44. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 44.
|
43. Over 4,000 separate applications have been written by
developers around the world specifically for SCO OpenServer. Most
of these applications are vertical applications for targeted
functions, such as point-of-sale control for specific industries,
inventory control for specific industries, and related functions.
|
45. Over 4,000 separate applications have been written by
developers around the world specifically for SCO OpenServer. Most
of these applications are vertical applications for targeted
functions, such as point-of-sale control for specific industries,
inventory control for specific industries, and related functions.
|
45. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 45.
|
The SCO OpenServer Libraries
|
|
|
44. Much of the functionality of an
operating system is made available to application developers by
means of “libraries” of code that are supplied by the
operating system vendor. These libraries contain many “functions”
or “routines” which can be used by application developers to
perform various common tasks such as reading or writing a file or
opening a new window on the screen.
|
|
|
45. SCO OpenServer, as with many other
operating systems such as Microsoft Windows, makes use of a
special kind of library called a “shared library.” The code
for all of the routines in a particular shared library is stored
in a separate file, and this code is loaded into memory “on
demand” when an application needs to make use of it. There are
several benefits that come from using “shared libraries” -
applications can be smaller and use less memory because a single
copy of the library code is “shared” by all of the
applications that make use of it, and system vendors can easily
update the library code in order to fix problems or provide
enhanced functionality. A side effect of this is that it is also
very easy to make a copy of a shared library.
|
|
|
46. In creating the thousands of SCO
OpenServer Applications, each designed for a specialized function
in a vertical industry, software developers wrote software code
which specifically made use of the SCO OpenServer shared libraries
(hereinafter the “SCO OpenServer Shared Libraries”), and thus
the presence of the SCO OpenServer Shared Libraries on a
particular system is required in order for these applications to
be able to run and function correctly.
|
|
|
47. Linux offers a “SCO emulation
module,” originally called “iBCS” and now known as
“linux-abi” which enables applications which were originally
developed to run on SCO OpenServer to be run on Linux. However, in
order for these applications to function, the SCO OpenServer
Shared Libraries must also be copied onto the Linux system. The
SCO OpenServer Shared Libraries are the proprietary and
confidential property of SCO. SCO OpenServer has been licensed to
numerous customers subject to restrictions on use that prohibit
unauthorized use of any of its software code, including without
limitation, the SCO OpenServer Shared Libraries. SCO does not give
permission for copying of the Shared Libraries for use outside
OpenServer without payment of separate licensing fees.
|
|
|
SCO’s Development of UnixWare on Intel
|
SCO's Development of UnixWare on Intel
|
|
48. While the original SCO OpenServer operating system performs
with all the reliability and dependability of other UNIX systems,
it was originally designed for the initially low processing power
of Intel chips. Therefore, SCO OpenServer does not offer the same
level of multiprocessor capabilities that other versions
of UNIX offer.
|
46. While the original SCO OpenServer operating system peforms
with all the reliability and dependability of other UNIX systems,
it was originally designed for the initially low processing power
of Intel chips. Therefore, SCO OpenServer does not offer the same
level of multiprocessor capabilities that other flavors
of UNIX offer.
|
46. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 46.
|
49. During or about 1992, SCO’s
predecessor in interest, Novell, Inc. (“Novell”), acquired
from AT&T all right, title and interest in and to the UNIX
software code, the AT&T Software and Sublicensing Agreements,
the copyrights and related and ancillary products
for $750 million in Novell stock. For branding purposes,
Novell renamed UNIX as “UnixWare.”
|
47. During or about 1993, SCO's
predecessor in interest, Novell, Inc. ("Novell"),
acquired from AT&T all right, title and interest in and to the
UNIX software code, the AT&T Software and Sublicensing
Agreements, the copyrights and related and ancillary products. For
branding purposes, Novell renamed UNIX as "UnixWare."
|
47. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 47.
|
50. On or about September 19, 1995 the
Santa Cruz Operation acquired all right, title and interest in and
to UNIX and UnixWare source code, the AT&T Software and
Sublicensing Agreements, the copyrights, claims arising after the
closing date against any party and all related and ancillary
products and rights from Novell, excepting only the right to
certain existing ongoing royalty payments which was retained by
Novell.
|
48. On or about September 19, 1995, The
Santa Cruz Operation, Inc. acquired
all right, title and interest in and to UNIX and UnixWare source
code, the AT&T Software and Sublicensing Agreements, the
copyrights, claims arising after the closing date against any
party and all related and ancillary products and rights from
Novell, excepting only the right to certain existing ongoing
royalty payments which was retained by Novell.
|
48. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 48.
|
51. From and after September 1995, SCO dedicated significant
amounts of funding and a large number of UNIX software engineers,
many of whom were original AT&T UNIX software engineers, to
upgrade UnixWare for high-performance computing on Intel
processors.
|
49. From and after September 1995, SCO dedicated significant
amounts of funding and a large number of UNIX software engineers,
many of whom were original AT&T UNIX software engineers, to
upgrade UnixWare for high-performance computing on Intel
processors.
|
49. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 49.
|
52. By approximately 1998, SCO had completed the majority of
this task. That is to say, UnixWare had largely been modified,
tested and “enterprise hardened” to use Intel-based processors
in direct competition against IBM and
Power PC chips, the Sun SPARC chip and all other high-performance
computing UNIX platforms for all complex computing demands. The
term “enterprise hardened” means to assure that a software
product is fully capable of performing under the rigorous demands
of enterprise use.
|
50. By approximately 1998, SCO had completed the majority of
this task. That is to say, UnixWare had largely been modified,
tested and "enterprise hardened" to use Intel-based
processors in competition against IBM and Power PC chips, the Sun
SPARC chip and all other high-performance computing UNIX platforms
for all complex computing demands. The term "enterprise
hardened" means to assure that a software product is fully
capable of performing under the rigorous demands of enterprise
use.
|
50. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 50, excpet
admits that UnixWare ran on Intel-based processors.
|
53. SCO was ready to offer large enterprise customers a
high-end UNIX computing platform based on inexpensive Intel
processors. Given the rapid growth of Intel’s performance
capabilities and Intel’s popularity in the marketplace, SCO
found itself in a highly desirable market position. In addition,
SCO still had its SCO OpenServer business for retail and
inventory-targeted functions, with its 4,000 applications in
support.
|
51. SCO was ready to offer large enterprise customers high-end
UNIX computing platforms based on
inexpensive Intel processors. Given the rapid growth of Intel's
performance capabilities and Intel's popularity in the
marketplace, SCO found itself in a highly desirable market
position. In addition, SCO still had its SCO OpenServer business
for retail and inventory-targeted functions, with its 4,000
applications.
|
51. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 51.
|
54. Prior to the events complained of in this action, SCO was
the undisputed global leader in the design and distribution of
UNIX-based operating systems on Intel-based processing platforms.
|
52. Prior to the events complained of in this action, SCO was
the undisputed global leader in the design and distribution of
commercial UNIX-based operating
systems on Intel-based processing platforms.
|
52. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 52.
|
Project Monterey
|
Project Monterey
|
|
55. As SCO was poised and ready to expand its market and market
share for UnixWare targeted to high-performance enterprise
customers, IBM approached SCO to jointly develop a 64-bit
UNIX-based operating system for a new 64-bit Intel platform. This
joint development effort was widely known as Project Monterey.
|
53. As SCO was poised and ready to expand its market and market
share for UnixWare targeted to high-performance enterprise
customers, IBM approached SCO to jointly develop a 64-bit
UNIX-based operating system for a new 64-bit Intel platform. This
joint development effort was widely known as Project Monterey.
|
53. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 53, except
admits that IBM and The Santa Cruz Operation, Inc. (a California
corporation now known as Tarantella, Inc., which is not affiliated
with SCO) entered into an agreement to develop and operating
system for a 64-bit processing platform that was being developed
by Intel and that the project was known as Project Monterey.
|
56. Prior to this time, IBM had
not developed any expertise to run UNIX
on an Intel processor and instead was confined to its Power
PC processor.
|
54. At this point
in time, IBM's UNIX expertise
was centered on its own Power
PC processor. IBM had little or no expertise
on Intel processors.
|
54. Denies the averments of paragraph 54.
|
57. SCO, on the other hand, had over 15 years of expertise in
adapting UNIX to Intel based systems. Moreover, SCO had spent the
previous 18 months working closely with Intel to adapt its
existing UnixWare product to work on the new 64-bit Intel
processor. That project, known as "Gemini-64," was well
underway when work on Project Monterey was started. In furtherance
of, and in reliance on, IBM’s commitment to Project Monterey,
SCO ceased work on the Gemini-64 Project and expended substantial
amounts of money and dedicated a significant portion of SCO's
development team to Project Monterey. Specifically, plaintiff and
plaintiff’s predecessor provided IBM engineers with valuable
information and trade secrets with
respect to architecture, schematics, and design of UnixWare and
the UNIX source code for both 32- and 64-bit Intel-based
processors.
|
55. SCO, on the other hand, had over 15 years of expertise in
adapting UNIX to Intel based systems. Moreover, SCO had spent the
previous 18 months working closely with Intel to adapt its
existing UnixWare product to work on the new 64-bit Intel
processor. That project, known as "Gemini-64," was well
underway when work on Project Monterey was started. In furtherance
of, and in reliance on, IBM’s commitment to Project Monterey,
which included IBM's commitment to SCO to
create joint sales and marketing opportunities, SCO ceased
work on the Gemini-64 Project and expended substantial amounts of
money and dedicated a significant portion of SCO's development
team to Project Monterey. Specifically, plaintiff and plaintiff’s
predecessor provided IBM engineers with valuable confidential
information with respect to architecture, schematics, and design
of UnixWare and the UNIX source code for both 32- and 64-bit
Intel-based processors.
|
55. Denies the averments of paragraph 55 as they relate to IBM,
except admits that The Santa Cruz Operation, Inc. provided
information to IBM concerning UnixWare and certain software, and
states that IBM is without information sufficient to form a belief
as to the truth of the averments as they relate to any other
person or entity.
|
58. By about May 2001, all technical aspects of Project
Monterey had been substantially completed. The only remaining
tasks of Project Monterey involved marketing and branding tasks to
be performed substantially by IBM.
|
56. By about May 2001, all technical aspects of Project
Monterey had been substantially completed. The only remaining
tasks of Project Monterey involved marketing and branding tasks to
be performed substantially by IBM.
|
56. Denies the averments of paragraph 56.
|
59. On or about May 2001, IBM notified plaintiff that it
refused to proceed with Project Monterey, and that IBM considered
Project Monterey to be “dead.”
|
57. On or about May 2001, IBM notified plaintiff that it
refused to proceed with Project Monterey, and that IBM considered
Project Monterey to be “dead.”
|
57. Denies the averments of paragraph 57.
|
The AT&T UNIX Agreements
|
The AT&T UNIX Agreements
|
|
60. AT&T Technologies originally licensed the UNIX
operating system software code to hundreds of software licensees,
including defendant IBM, for the UNIX operating system software
source code, object code and related schematics, documentation and
derivative works (collectively, the “UNIX Source Code”). To
protect the confidential and proprietary source code information,
these license agreements, as detailed below, contained strict
limitations on use and distribution of UNIX source and binary
code.
|
58. AT&T Technologies originally licensed the UNIX
operating system software code to hundreds of software licensees,
including defendant IBM, for the UNIX operating system software
source code, object code and related schematics, documentation,
modifications and derivative works (collectively, the “UNIX
Source Code”). To protect the confidential and proprietary
source code information, these license agreements, as detailed
below, contained strict limitations on use and distribution of
UNIX source and binary code. These
provisions prohibited licensees from copying or replacing UNIX
source code in competing systems that would diminish the value of
UNIX.
|
58. Denies the averments of paragraph 58 as they relate to IBM,
except admits that AT&T Technologies, Inc. licensed certain
operating system software code to IBM, refers to the licensed
agreements for their contents and states that IBM is without
information sufficient to form a belief as to the truth of the
averments of paragraph 58 as they relate to any other person or
entity.
|
61. When SCO acquired the UNIX assets from Novell in 1995, it
acquired all right, title and interest in and to the UNIX
operating system technology, including all claims against any
parties relating to any right, property or asset used in the
business of developing UNIX and UnixWare. As a result of this
acquisition, SCO became the authorized successor in interest to
the original position of AT&T Technologies
with respect to all licensed UNIX software products.
|
59. When SCO acquired the UNIX assets from Novell in 1995, it
acquired all right, title and interest in and to the UNIX
operating system technology, including all claims against any
parties relating to any right, property or asset used in the
business of developing UNIX and UnixWare. As a result of this
acquisition, SCO became the authorized successor in interest to
the original position of AT&T with respect to all licensed
UNIX software products.
|
59. Denies the averments of paragraph 59.
|
62. There are two primary types of software licensing
agreements between AT&T Technologies and its various
licensees:
|
60. There are two primary types of software licensing
agreements between AT&T Technologies and its various
licensees:
|
60. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 60.
|
a) The AT&T-related software agreements are collectively
referred to hereinafter as the “AT&T UNIX Software
Agreements.”
|
a) The AT&T-related software agreements are collectively
referred to hereinafter as the “AT&T UNIX Software
Agreements.”
|
b) The AT&T-related sublicensing agreements are
collectively referred to hereinafter as the “AT&T UNIX
Sublicensing Agreements.”
|
b) The AT&T-related sublicensing agreements are
collectively referred to hereinafter as the “AT&T UNIX
Sublicensing Agreements.”
|
The AT&T UNIX Software Agreements and the AT&T UNIX
Sublicensing Agreements are sometimes collectively referred to
hereinafter as the “AT&T UNIX Agreements.”
|
The AT&T UNIX Software Agreements and the AT&T UNIX
Sublicensing Agreements are sometimes collectively referred to
hereinafter as the “AT&T UNIX Agreements.”
|
63. Plaintiff is successor in interest to, and owner of, all
contractual rights arising from and related to the AT&T UNIX
Agreements.
|
61. Plaintiff is successor in interest to, and owner of, all
contractual rights arising from and related to the AT&T UNIX
Agreements.
|
61. Denies the averments of paragraph 61.
|
The IBM Related Agreements
|
The IBM Related Agreements
|
|
64. On February 1, 1985, AT&T and IBM entered into certain
AT&T UNIX Agreements:
|
62. On February 1, 1985, AT&T and IBM entered into certain
AT&T UNIX Agreements:
|
62. Denies the averments of paragraph 62, except refers to the
referenced documents for their contents.
|
a) Software Agreement Number Soft-00015 (“AT&T / IBM
Software Agreement” attached hereto and incorporated herein as
Exhibit A);
|
a) Software Agreement Number Soft-00015 (“AT&T / IBM
Software Agreement” attached hereto and incorporated herein as
Exhibit A);
|
b) Sublicensing Agreement Number Sub-00015A (“AT&T / IBM
Sublicensing Agreement” attached hereto and incorporated herein
as Exhibit B).
|
b) Sublicensing Agreement Number Sub-00015A (“AT&T / IBM
Sublicensing Agreement” attached hereto and incorporated herein
as Exhibit B).
|
65. AT&T and IBM have entered
into a side letter on that date (“AT&T / IBM Side Letter”
attached hereto and incorporated herein as Exhibit C).
|
63. AT&T and IBM also entered
into a side letter on that date (“AT&T / IBM Side Letter”
attached hereto and incorporated herein as Exhibit C).
|
63. Denies the averments of paragraph 63, except refers to the
referenced document for its contents.
|
66. In addition, AT&T and IBM have entered into nearly 400
supplemental agreements over the years, including Supplement No.
170 (Supplement No. 170 is attached hereto and incorporated herein
as Exhibit D). Supplement No. 170 is the document that specifies
the royalty amounts and computer CPUs upon which royalty amounts
were due to be paid by IBM.
|
64. In addition, AT&T and IBM have entered into nearly 400
supplemental agreements over the years, including Supplement No.
170 (Supplement No. 170 is attached hereto and incorporated herein
as Exhibit D). Supplement No. 170 is the document that specifies
the royalty amounts and computer CPUs upon which royalty amounts
were due to be paid by IBM.
|
64. Denies the averments of paragraph 64, except refers to the
referenced documents for their contents.
|
67. Thereafter, Amendment X to Software Agreement SOFT-00015,
as amended, was executed on or about October 16, 1996 by and among
IBM, The Santa Cruz Operation, Inc. (“SCO”) and Novell, Inc.
(“IBM Amendment X” attached hereto and incorporated herein as
Exhibit E). Among other things, Amendment X effectuated a royalty
buy-out by IBM pursuant to the royalty terms and amounts specified
in Supplement No. 170.
|
65. Thereafter, Amendment X to Software Agreement SOFT-00015,
as amended, was executed on or about October 16, 1996 by and among
IBM, The Santa Cruz Operation, Inc. (“SCO”) and Novell, Inc.
(“IBM Amendment X” attached hereto and incorporated herein as
Exhibit E). Among other things, Amendment X effectuated a royalty
buy-out by IBM pursuant to the royalty terms and amounts specified
in Supplement No. 170, and it confirmed
other restrictions on IBM, including restrictions on the use of
source code.
|
65. Denies the averments of paragraph 65, except refers to the
referenced document for its contents.
|
68. Collectively these agreements, side letter and amendment
are referred to hereinafter as the “IBM Related Agreements.”
|
66. Collectively these agreements, side letter and amendment
are referred to hereinafter as the “IBM Related Agreements.”
|
66. States that the averments of paragraph 66 purport to define
a term for purposes of SCO's complaint and do not require a
response. To the extent a response is required, IBM denies the
averments of paragraph 66, except refers to the referenced
documents for their contents.
|
The Sequent Agreements
|
The Sequent Agreements
|
|
69. On January 28, 1986, AT&T and Sequent (now an
operating division of IBM) entered into certain AT&T
UNIX Agreements:
|
67. On January 28, 1986, AT&T and Sequent (now merged
into IBM through a stock acquisition)
entered into certain AT&T UNIX Agreements:
|
67. Denies the averments in paragraph 67, except refers to the
referenced documents for their contents.
|
a) Software Agreement Number SOFT-000321 (“Sequent Software
Agreement” attached hereto and incorporated herein as Exhibit
F);
|
a) Software Agreement Number SOFT-000321 (“Sequent Software
Agreement” attached hereto and incorporated herein as Exhibit
F);
|
b) Sublicensing Agreement Number SUB-000321A (“Sequent
Sublicensing Agreement” attached hereto and incorporated herein
as Exhibit G).
|
b) Sublicensing Agreement Number SUB-000321A (“Sequent
Sublicensing Agreement” attached hereto and incorporated herein
as Exhibit G).
|
70. The Sequent Software Agreement and the Sequent Sublicensing
Agreement are sometimes collectively referred to hereinafter as
the “Sequent Agreements.”
|
68. The Sequent Software Agreement and the Sequent Sublicensing
Agreement are sometimes collectively referred to hereinafter as
the “Sequent Agreements.”
|
68. States that the averments of paragraph 68 purport to define
a term for purposes of SCO's complaint and do not require a
response. To the extent a response is required, IBM denies the
averments of paragraph 68, except refers to the referenced
documents for their contents.
|
|
69. The IBM Related Agreements and
Sequent Agreements collectively identify the "Protected
Materials."
|
69. Denies the averments of 69, except refers to the referenced
documents for their contents.
|
Marketplace Value of UNIX
|
Marketplace Value of UNIX
|
|
71. UNIX’s value in the enterprise marketplace is largely a
function of its reliability, extensibility, and robust performance
capability. That is to say, it virtually never needs repair, it
performs well under a wide variety of adverse circumstances, and
it can be extended throughout an enterprise and across multiple
processors to perform unified or disparate tasks in a seamless
computing environment. Because of these features, UNIX-based
equipment has replaced mainframe computers for all but the most
demanding computing tasks. And, because UNIX-based equipment is
far cheaper than mainframe computing equipment, a customer who
cannot otherwise justify the cost of mainframe computers can
otherwise gain the advantages of “supercomputing” operations
through use of UNIX-based equipment.
|
70. UNIX’s value in the enterprise marketplace is largely a
function of its reliability, extensibility, and robust performance
capability. That is to say, it virtually never needs repair, it
performs well under a wide variety of adverse circumstances, and
it can be extended throughout an enterprise and across multiple
processors to perform unified or disparate tasks in a seamless
computing environment. Because of these features, UNIX-based
equipment has replaced mainframe computers for all but the most
demanding computing tasks. And, because UNIX-based equipment is
far cheaper than mainframe computing equipment, a customer who
cannot otherwise justify the cost of mainframe computers can
otherwise gain the advantages of “supercomputing” operations
through use of UNIX-based equipment.
|
70. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 70.
|
72. One or more of the different versions of UNIX-based
operating systems sold by Sun, IBM, SCO, SGI, and others, is the
operating system of choice for large enterprise computing
operations in virtually 100% of the Fortune 1000 companies.
|
71. One or more of the different versions of UNIX-based
operating systems sold by Sun, IBM, SCO, SGI, and others, is the
operating system of choice for large enterprise computing
operations in virtually 100% of the Fortune 1000 companies.
|
71. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 71.
|
73. UNIX gained this prominence in the computing marketplace
because of twenty years of development and over one billion
dollars invested by plaintiff and its predecessors to create a
stable, reliable operating system to perform the mission critical
work required by large enterprises.
|
72. UNIX gained this prominence in the computing marketplace
because of twenty years of development and over one billion
dollars invested by plaintiff and its predecessors to create a
stable, reliable operating system to perform the mission critical
work required by large enterprises.
|
72. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 72.
|
74. The recent rise of the global technology economy has been
powered in large part by UNIX. Virtually every mission critical
financial application in the world is powered by UNIX, including
electronic transfers of funds. Real time stock trades are powered
by UNIX. Inventory controls and distributions are powered by UNIX.
All major power grids and all major telecommunications systems are
powered by UNIX. Many satellite control and defense control
systems are powered by UNIX. Virtually every large corporation in
the world currently operates part or all of its information
technology systems on a UNIX operating system.
|
73. The recent rise of the global technology economy has been
powered in large part by UNIX. Virtually every mission critical
financial application in the world is powered by UNIX, including
electronic transfers of funds. Real time stock trades are powered
by UNIX. Inventory controls and distributions are powered by UNIX.
All major power grids and all major telecommunications systems are
powered by UNIX. Many satellite control and defense control
systems are powered by UNIX. Virtually every large corporation in
the world currently operates part or all of its information
technology systems on a UNIX operating system.
|
73. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 73.
|
75. Based on its value in the marketplace, UNIX has become the
most widely used and widely accepted operating system for
enterprise, institutional and manufacturing applications
throughout the world.
|
74. Based on its value in the marketplace, UNIX has become the
most widely used and widely accepted operating system for
enterprise, institutional and manufacturing applications
throughout the world.
|
74. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 74.
|
Linux
|
Linux
|
|
76. Linux, or “GNU/Linux,” is
an operating system variant or clone of UNIX System V Technology.
According to leaders within the Linux community, Linux is not just
a “clone,” but is intended to be
a successor to UNIX System V. Linux, unlike UNIX, is distributed
without a fee to its users.
|
75. Linux is an operating system variant or clone of UNIX
System V Technology. According to leaders within the Linux
community, Linux is not just a “clone,” but is intended as
a successor to UNIX System V. Linux, unlike UNIX, is distributed
without a fee to its users. Moreover, it is
developed under and [sic] open source model, meaning that the
source code is publicly available to all who want to see or use
it.
|
75. Denies the averments of paragraph 75 as they relate to IBM
and states that it is without information sufficient to form a
belief as to paragraph 75 as they relate to any other person or
entity, excpet admits that Linux is developed under an open-source
model.
|
77. As long as the Linux development
process lacked central coordination, its direction was primarily
aimed at meeting the computing needs of the Linux programmers
themselves. As such, it posed little or no practical threat to SCO
or to other UNIX vendors since the Linux developers did not have
access to sophisticated high-end enterprise class multiprocessor
systems, nor did they have any particular interest in supporting
such systems.
|
|
|
78. The entire direction of Linux
development changed with IBM’s entry into the open source
community and its concerted efforts to control the community for
its own economic benefit.
|
76. IBM’s entry into the open source community and its
concerted efforts to control the community for its own economic
benefit have substantially altered the use
and impact of Linux.
|
76. Denies the averments of paragraph 76.
|
79. In furtherance of its plan to destroy its UNIX competitors,
IBM has announced its intention to make Linux, distributed to end
users without a fee, the successor to all existing UNIX operating
systems used by Fortune 1000 companies and other large companies
in the enterprise computing market.
|
77. In furtherance of its plan to destroy its UNIX competitors,
IBM has announced its intention to make Linux, distributed to end
users without a fee, the successor to all existing UNIX operating
systems used by Fortune 1000 companies and other large companies
in the enterprise computing market.
|
77. Denies the averments of paragraph 77.
|
80. However, as IBM executives know,
a significant flaw of Linux is the inability and/or unwillingness
of the Linux process manager, Linus Torvalds, to identify the
intellectual property origins of contributed source code that
comes in from those many different software developers. If source
code is code copied from protected UNIX code, there is no way for
Linus Torvalds to identify that fact.
|
78. However, as is widely reported and
as IBM executives knew, or should have
known, a significant flaw of Linux is
the inability and/or unwillingness of the Linux process manager,
Linus Torvalds, to identify the intellectual property origins of
contributed source code that comes in from those many different
software developers. If source code is code copied from protected
UNIX code, there is no way for Linus Torvalds to identify that
fact.
|
78. Denies the averments of paragraph 78 as they relate to IBM
and states that it is without information sufficient to form a
belief as to the truth of the averments as they relate to any
other person or entity.
|
81. As a result, a very significant amount of UNIX protected
code is currently found in Linux
2.4.x and Linux 2.5.x releases in
violation of SCO’s contractual rights and copyrights.
|
79. As a result, a very significant amount of UNIX protected
code and materials are currently
found in Linux 2.4.x, Linux 2.5.x and
Linux 2.6.x releases in violation of SCO’s contractual
rights and copyrights.
|
79. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 79.
|
The Functional Limitations of Linux Before IBM’s Involvement
|
The Functional Limitations of Linux Before IBM’s
Involvement
|
|
82. The first versions of Linux evolved through bits and pieces
of various contributions by numerous software developers using
single processor computers. Virtually
none of these software developers and hobbyists had access to
enterprise-scale equipment and testing facilities for Linux
development. Without access to such equipment, facilities and
knowledge of sophisticated development methods learned in many
years of UNIX development it would be difficult, if not
impossible, for the Linux development community to create a grade
of Linux adequate for enterprise use.
|
80. The first versions of Linux evolved through bits and pieces
of various contributions by numerous software developers using
single or dual processor computers.
Unlike IBM, virtually none of these
software developers and hobbyists had access to enterprise-scale
equipment and testing facilities for Linux development. Without
access to such equipment, facilities and knowledge of
sophisticated development methods learned in many years of UNIX
development it would be difficult, if not impossible, for the
Linux development community to create a grade of Linux adequate
for enterprise use.
|
80. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 80.
|
83. As long as the Linux development
process remained uncoordinated and random, it posed little or no
practical threat to SCO or to other UNIX vendors since the
original Linux developers did not have access to multiprocessor
code or multi-processor development methods needed to achieve
high-end enterprise functionality.
|
81. Also, unlike IBM, the original
Linux developers did not have access to multiprocessor code or
multi-processor development methods needed to achieve high-end
enterprise functionality.
|
81. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 81.
|
84. To make Linux of necessary quality for use by enterprise
customers, it needed to be re-designed and upgraded to accommodate
complex multi-processor functionality that has
taken UNIX nearly 20 years to achieve. This re-design is
not technologically feasible or even
possible at the enterprise level without (a) a high degree of
design coordination, (b) access to expensive and sophisticated
design and testing equipment; (c) access to UNIX code and
development methods; (d) UNIX architectural experience; and (e) a
very significant financial investment.
|
82. To make Linux of necessary quality for use by enterprise
customers, it needed to be re-designed and upgraded to accommodate
complex multi-processor functionality that had
taken UNIX nearly 20 years to achieve. This rapid
re-design was not feasible or even
possible at the enterprise level without (a) a high degree of
design coordination, (b) access to expensive and sophisticated
design and testing equipment; (c) access to UNIX code and
development methods; (d) UNIX architectural experience; and (e) a
very significant financial investment. The
contributions of IBM, which had access to UNIX System V Protected
Materials and years of enterprise level experience, made possible
this rapid redesign of Linux for enterprise use.
|
82. Denies the averments of paragraph 82, except admits that
IBM has contributed to the development of Linux, has years of
experience with operating systems and licenses UNIX System V
software.
|
|
83. As a result of the foregoing, Linux
is a clone of UNIX, including protected UNIX System V Technology,
including modifications and derivatives thereof.
|
83. Denies the averments of paragraph 83.
|
IBM’s Scheme
|
IBM’s Scheme
|
|
85. As market awareness of Linux evolved, IBM initiated a
course of conduct with the purpose and effect of using Linux to
unfairly compete in the enterprise market. At that point in
time, four important events were occurring simultaneously in the
enterprise software computing marketplace:
|
84. As market awareness of Linux evolved, IBM initiated a
course of conduct with the purpose and effect of using Linux to
unfairly compete in the enterprise market. At that point in
time, four important events were occurring simultaneously in the
enterprise software computing marketplace:
|
84. Denies the averments of paragraph 84.
|
a)Intel chips were becoming widely demanded by enterprise
customers since Intel’s processing power had increased and its
cost had remained low;
|
a)Intel chips were becoming widely demanded by enterprise
customers since Intel’s processing power had increased and its
cost had remained low;
|
b) SCO’s market power in the enterprise marketplace was
increasing based on the combined capabilities of SCO OpenServer,
SCO UnixWare and SCO’s unique position as UNIX on Intel;
|
b) SCO’s market power in the enterprise marketplace was
increasing based on the combined capabilities of SCO OpenServer,
SCO UnixWare and SCO’s unique position as UNIX on Intel;
|
a) Free Linux had carved a niche in
not-for-profit and non-business uses; and
|
a) Sun and Microsoft's market share in
the enterprise market continued to grow; and
|
b) IBM was in the process of evolving its business model from
products to services.
|
b) IBM was in the process of evolving its business model from
software technology to services.
|
86. In the process of moving from product offerings to services
offerings, IBM dramatically increased its staff of systems
integrators to 120,000 strong under the marketing brand “IBM
Global Services.” By contrast, IBM’s largest historic
competitor as a seller of UNIX software, Sun Microsystems, has a
staff of approximately 12,000 systems integrators. With ten times
more services-related personnel than its largest competitor, IBM
sought to move the corporate enterprise computing market to a
services model based on free software on Intel processors.
|
85. In the process of moving from product offerings to services
offerings, IBM dramatically increased its staff of systems
integrators to 120,000 strong under the marketing brand “IBM
Global Services.” By contrast, IBM’s largest historic
competitor as a seller of UNIX software, Sun Microsystems, has a
staff of approximately 12,000 systems integrators. With ten times
more services-related personnel than its largest competitor, IBM
sought to move the corporate enterprise computing market to a
services model based on free software on Intel processors.
|
85. Denies the averments of paragraph 85 as they relate to IBM,
except admits that IBM has increased its IBM Global Services staff
and states that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 85 as they
relate to any other person or entity.
|
87. By making the Linux operating system free to end users, IBM
could undermine and destroy the ability of any of its competitors
to charge a fee for distribution of UNIX software in the
enterprise market. Thus, IBM, with its army of Global Services
integrators who earn money by selling services,
would gain a tremendous advantage over all its competitors who
earn money by selling UNIX licenses.
|
87[-1]. By making the Linux operating system free to end users,
IBM could undermine and destroy the ability of any of its
competitors to charge a fee for distribution of UNIX software in
the enterprise market. Thus, IBM, with its army of Global Services
integrators who earn money by selling services,
would gain a tremendous advantage over all its competitors who
earn money by selling UNIX licenses.
|
87. Denies the averments of paragraph 87.
|
88. To accomplish the end of transforming the enterprise
software market to a services-driven market, IBM set about to
deliberately and improperly destroy the economic value of UNIX and
particularly the economic value of UNIX on Intel-based processors.
|
87[-2]. To accomplish the end of transforming the enterprise
software market to a services-driven market, IBM set about to
deliberately and improperly destroy the economic value of UNIX and
particularly the economic value of UNIX on Intel-based processors.
|
87. Denies the averments of paragraph 87.
|
89. Among other actions, IBM
misappropriated the confidential and proprietary information from
SCO in Project Monterey. IBM thereafter
misused its access to the UNIX source code.
|
88. As detailed elsewhere, IBM
misappropriated the confidential and proprietary information from
SCO in Project Monterey. IBM also
misused its access to the UNIX source code,
in violation of the IBM Related Agreements.
|
88. Denies the averments of paragraph 88.
|
90. On or about August 17, 2000, IBM and Red Hat Inc. issued a
joint press release through M2 Presswire announcing, inter
alia, as follows:
|
89. On or about August 17, 2000, IBM and Red Hat Inc.,
the leading Linux distributor, issued a joint press release
through M2 Presswire announcing, inter alia, as follows:
|
89. Denies the averments of paragraph 89, except refers to the
referenced document for its contents.
|
IBM today announced a global agreement that enables Red Hat,
Inc. to bundle IBM’s Linux-based software.
|
IBM today announced a global agreement that enables Red Hat,
Inc. to bundle IBM’s Linux-based software.
|
IBM said it would contribute more than 100 printer drivers to
the open source community. With these announcements, IBM is making
it easier for customers to deploy e-business applications on Linux
using a growing selection of hardware and software to meet their
needs. The announcements are the latest initiative in IBM’s
continuing strategy to embrace Linux across its entire product and
services portfolio.
|
IBM said it would contribute more than 100 printer drivers to
the open source community. With these announcements, IBM is making
it easier for customers to deploy e-business applications on Linux
using a growing selection of hardware and software to meet their
needs. The announcements are the latest initiative in IBM’s
continuing strategy to embrace Linux across its entire product and
services portfolio.
|
Helping build the open standard, IBM has been working closely
with the open source community, contributing technologies and
resources.
|
Helping build the open standard, IBM has been working closely
with the open source community, contributing technologies and
resources.
|
91. Thereafter, on December 20, 2000, IBM Vice President Robert
LeBlanc disclosed IBM’s improper use of confidential and
proprietary information learned from Project Monterey to bolster
Linux as part of IBM’s long term vision, stating:
|
90. Thereafter, on December 20, 2000, IBM Vice President Robert
LeBlanc disclosed IBM’s improper use of confidential and
proprietary information learned from Project Monterey to bolster
Linux as part of IBM’s long term vision, stating:
|
90. Denies the averments of paragraph 90.
|
Project Monterey was actually started before Linux did. When we
started the push to Monterey, the notion was to have one common OS
for several architectures. The notion actually came through with
Linux, which was open source and supported all hardware. We
continued with Monterey as an extension of AIX [IBM UNIX] to
support high-end hardware. AIX 5 has the best of Monterey.
Linux cannot fill that need today, but over time we believe
it will. To help out we’re making contributions to the open
source movement like the journal file system. We can’t
tell our customers to wait for Linux to grow up.
|
Project Monterey was actually started before Linux did. When we
started the push to Monterey, the notion was to have one common OS
for several architectures. The notion actually came through with
Linux, which was open source and supported all hardware. We
continued with Monterey as an extension of AIX [IBM UNIX] to
support high-end hardware. AIX 5 has the best of Monterey.
Linux cannot fill that need today, but over time we believe
it will. To help out we’re making contributions to the open
source movement like the journal file system. We can’t
tell our customers to wait for Linux to grow up.
|
If Linux had all of the capabilities of AIX, where we
could put the AIX code at runtime on top of Linux, then we would.
|
If Linux had all of the capabilities of AIX, where we
could put the AIX code at runtime on top of Linux, then we would.
|
Right now the Linux kernel does not support all the
capabilities of AIX. We’ve been working on AIX for 20
years. Linux is still young. We’re helping Linux kernel up to
that level. We understand where the kernel is. We have a lot of
people working now as part of the kernel team. At the end
of the day, the customer makes the choice, whether we write for
AIX or for Linux.
|
Right now the Linux kernel does not support all the
capabilities of AIX. We’ve been working on AIX for 20
years. Linux is still young. We’re helping Linux kernel up to
that level. We understand where the kernel is. We have a lot of
people working now as part of the kernel team. At the end
of the day, the customer makes the choice, whether we write for
AIX or for Linux.
|
We’re willing to open source any part of AIX that the
Linux community considers valuable. We have open-sourced
the journal file system, print driver for the Omniprint. AIX is
1.5 million lines of code. If we dump that on the open source
community then are people going to understand it? You’re
better off taking bits and pieces and the expertise that we bring
along with it. We have made a conscious decision to keep
contributing.
|
We’re willing to open source any part of AIX that the
Linux community considers valuable. We have open-sourced
the journal file system, print driver for the Omniprint. AIX is
1.5 million lines of code. If we dump that on the open source
community then are people going to understand it? You’re
better off taking bits and pieces and the expertise that we bring
along with it. We have made a conscious decision to keep
contributing.
|
92. IBM, however, was not and is not in a position legally to
“open source any part of AIX that the Linux community considers
valuable.” Rather, IBM is obligated not to open
source AIX because it contains SCO’s confidential and
proprietary UNIX source code, derivative works and methods.
|
91. IBM, however, was not and is not in a position legally to
“open source any part of AIX that the Linux community considers
valuable.” Rather, IBM is obligated not to open
source AIX because it contains SCO’s confidential and
proprietary UNIX source code, derivative works,
modifications and methods.
|
91. Denies the averments of paragraph 91 and states that IBM
has not open sourced any part of AIX that it did not have the
right to open source.
|
93. Over time, IBM made a very substantial financial commitment
to improperly put SCO’s confidential and proprietary information
into Linux, the free operating system. On or about May 21, 2001
IBM Vice President Richard Michos, stated in an interview to
Independent Newspapers, New Zealand, inter alia:
|
92. Over time, IBM made a very substantial financial commitment
to improperly put SCO’s confidential and proprietary information
into Linux, the free operating system. On or about May 21, 2001
IBM Vice President Richard Michos, stated in an interview to
Independent Newspapers, New Zealand, inter alia:
|
92. Denies the averments of paragraph 92.
|
IBM will put US $1 billion this year into Linux, the free
operating system.
|
IBM will put US $1 billion this year into Linux, the free
operating system.
|
IBM wants to be part of the community that makes Linux
successful. It has a development team that works on improvements
to the Linux kernel, or source code. This includes
programmers who work in the company’s Linux technology center,
working on making the company’s technology Linux-compatible.
|
IBM wants to be part of the community that makes Linux
successful. It has a development team that works on improvements
to the Linux kernel, or source code. This includes
programmers who work in the company’s Linux technology center,
working on making the company’s technology Linux-compatible.
|
That team of IBM programmers is improperly extracting and using
SCO’s UNIX technology from the same building that was previously
the UNIX Technology Center.
|
That team of IBM programmers is improperly extracting and using
SCO’s UNIX technology from the same building that was previously
the UNIX Technology Center.
|
94. In a news article issued by e-Business Developer on or
about August 10, 2001, the following conduct was attributed to IBM
regarding participation in the open source software movement:
|
93. In a news article issued by e-Business Developer on or
about August 10, 2001, the following conduct was attributed to IBM
regarding participation in the open source software movement:
|
93. Denies the averments of paragraph 93, except refers to the
referenced document for its contents.
|
Another example is when IBM realized that the open-source
operating system (OS) Linux provided an economical and reliable OS
for its various hardware platforms. However, IBM needed to
make changes to the source to use it on its full range of product
offerings.
|
Another example is when IBM realized that the open-source
operating system (OS) Linux provided an economical and reliable OS
for its various hardware platforms. However, IBM needed to
make changes to the source to use it on its full range of product
offerings.
|
IBM received help from the open-source community with these
changes and in return, released parts of its AIX OS to open
source. IBM then sold its mainframes running Linux to Banco
Mercantile and Telia Telecommunications, replacing 30 Windows NT
boxes and 70 Sun boxes respectively - obviously a win for IBM,
which reduced its cost of maintaining a proprietary OS while
increasing its developer base. IBM's AIX contributions were
integrated into the standard Linux source tree, a win for open
source.
|
IBM received help from the open-source community with these
changes and in return, released parts of its AIX OS to open
source. IBM then sold its mainframes running Linux to Banco
Mercantile and Telia Telecommunications, replacing 30 Windows NT
boxes and 70 Sun boxes respectively - obviously a win for IBM,
which reduced its cost of maintaining a proprietary OS while
increasing its developer base. IBM's AIX contributions were
integrated into the standard Linux source tree, a win for open
source.
|
95. Again, “IBM’s AIX contributions” consisted of the
improper extraction, use, and dissemination of SCO’S UNIX source
code, derivative works and methods.
|
94. Again, “IBM’s AIX contributions” consisted of the
improper extraction, use, and dissemination of SCO’S UNIX source
code, derivative works, modifications
and methods.
|
94. Denies the averments of paragraph 94.
|
96. In a news article issued by IDC on or about August 14,
2001, the following was reported:
|
95. In a news article issued by IDC on or about August 14,
2001, the following was reported:
|
95. Denies the averments of paragraph 95, except refers to the
referenced document for its contents.
|
IBM continued its vocal support of the Linux operating system
Tuesday, saying the company will gladly drop its own version of
UNIX from servers and replace it with Linux if the software
matures so that it can handle the most demanding tasks.
|
IBM continued its vocal support of the Linux operating system
Tuesday, saying the company will gladly drop its own version of
UNIX from servers and replace it with Linux if the software
matures so that it can handle the most demanding tasks.
|
IBM executives speaking here at the company's solutions
developer conference outlined reasons for the company's Linux
support, pointing to features in the operating system that could
push it past UNIX for back-end computing. While they admit
that Linux still has a way to go before it can compete with the
functions available on many flavors of UNIX, IBM officials said
that Linux could prove more cost-effective and be a more
user-friendly way to manage servers.
|
IBM executives speaking here at the company's solutions
developer conference outlined reasons for the company's Linux
support, pointing to features in the operating system that could
push it past UNIX for back-end computing. While they admit
that Linux still has a way to go before it can compete with the
functions available on many flavors of UNIX, IBM officials said
that Linux could prove more cost-effective and be a more
user-friendly way to manage servers.
|
‘We are happy and comfortable with the idea that Linux
can become the successor, not just for AIX, but for all UNIX
operating systems,’ said Steve Mills, senior vice
president and group executive of the IBM Software Group, during a
news conference.
|
‘We are happy and comfortable with the idea that Linux
can become the successor, not just for AIX, but for all UNIX
operating systems,’ said Steve Mills, senior vice
president and group executive of the IBM Software Group, during a
news conference.
|
97. Continuing with its “happy and comfortable” idea that
Linux succeeds at the expense of UNIX, on or about January 23,
2003, IBM executive Steve Mills gave a keynote speech at
LinuxWorld, a trade show, which was reported by Computer Reseller
News, IBM’s Mills: Linux Will be on Par with UNIX in No Time,
January 23, 2003, inter alia, as follows:
|
96. Continuing with its “happy and comfortable” idea that
Linux succeeds at the expense of UNIX, on or about January 23,
2003, IBM executive Steve Mills gave a keynote speech at
LinuxWorld, a trade show, which was reported by Computer Reseller
News, IBM’s Mills: Linux Will be on Par with UNIX in No Time,
January 23, 2003, inter alia, as follows:
|
96. Denies the averments of paragraph 96, except refers to the
referenced document for its contents.
|
IBM will exploit its expertise in AIX to bring Linux up
to par with UNIX, an IBM executive said Thursday.
|
IBM will exploit its expertise in AIX to bring Linux up
to par with UNIX, an IBM executive said Thursday.
|
During his keynote at LinuxWorld here, IBM Senior Vice
President and group executive Steve Mills acknowledged that Linux
lags behind UNIX in scalability, SMP support, fail-over
capabilities and reliability--but not for long.
|
During his keynote at LinuxWorld here, IBM Senior Vice
President and group executive Steve Mills acknowledged that Linux
lags behind UNIX in scalability, SMP support, fail-over
capabilities and reliability--but not for long.
|
‘The pathway to get there is an eight-lane highway,’
Mills said, noting that IBM's deep experience with AIX and its
250-member open-source development team will be applied to make
the Linux kernel as strong as that of UNIX. ‘The road to get
there is well understood.’
|
‘The pathway to get there is an eight-lane highway,’
Mills said, noting that IBM's deep experience with AIX and its
250-member open-source development team will be applied to make
the Linux kernel as strong as that of UNIX. ‘The road to get
there is well understood.’
|
* * *
|
* * *
|
Mills hinted that the company's full development
capabilities will be brought to bear in engineering the Linux
kernel to offer vastly improved scalability, reliability and
support for mixed workloads--and to obliterate UNIX.
|
Mills hinted that the company's full development
capabilities will be brought to bear in engineering the Linux
kernel to offer vastly improved scalability, reliability and
support for mixed workloads--and to obliterate UNIX.
|
98. The only way that the pathway is an “eight-lane highway”
for Linux to achieve the scalability, SMP support, fail-over
capabilities and reliability of UNIX is by the improper
extraction, use, and dissemination of the proprietary and
confidential UNIX source code, derivative works and methods.
Indeed, UNIX was able to achieve its status as the premiere
operating system only after decades of hard work, beginning with
the finest computer scientists at AT&T Bell Laboratories,
plaintiff’s predecessor in interest.
|
97. The only way that the pathway is an “eight-lane highway”
for Linux to achieve the scalability, SMP support, fail-over
capabilities and reliability of UNIX is by the improper
extraction, use, and dissemination of the proprietary and
confidential UNIX source code, derivative works and methods.
Indeed, UNIX was able to achieve its status as the premiere
operating system only after decades of hard work, beginning with
the finest computer scientists at AT&T Bell Laboratories,
plaintiff’s predecessor in interest.
|
97. Denies the averments of paragraph 97, except it states that
it is without information sufficient to form a belief as to the
truth of the averments in the second sectence of paragraph 97.
|
99. Based on other published statements, IBM currently has over
7,000 employees involved in the transfer of UNIX knowledge into
the Linux business of IBM, Red Hat, Inc. and SuSE Linux AG (the
largest European Linux distributor). On information and belief, a
large number of the said IBM employees currently working in the
transfer of UNIX to Linux have, or have had, access to the UNIX
Software Code.
|
98. Based on other published statements, IBM currently has over
7,000 employees involved in the transfer of UNIX knowledge into
the Linux business of IBM, Red Hat, Inc. and SuSE Linux AG (the
largest European Linux distributor). On information and belief, a
large number of the said IBM employees currently working in the
transfer of UNIX to Linux have, or have had, access to the UNIX
Software Code.
|
98. Denies the averments of paragraph 98.
|
|
99. Consistent with these public
pronouncements, IBM made significant contributions of the
Protected Materials, including AIX and Dynix/ptx, in an effort to
make Linux enterprise hardened. In violation of the IBM Related
Agreements and Sequent Agreements and legal obligations regarding
UNIX System V, including maintaining System V source code and any
modifications or derivative works in confidence, IBM contributed
key technology to Linux for enterprise use. Among the numerous
contributions are the AIX Journaling File Systems, the AIX
Enterprise Volume Management System, and the Dynix/ptx Read Copy
Update technology.
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99. Denies the averments of paragraph 99, except admits that
IBM has properly and lawfully contributed to the development of
Linux and refers to the contributions (which are publicly
available) for their contents.
|
|
100. The contribution of the Journaling
File System ("JFS") was done in a series of "drops"
of AIX code identified as "reference files" inside
Linux. The first such drop occurred on or about February 2000,
with multiple additions and significant follow-up work by IBM
since that time to adapt AIX/JFS for enterprise use inside Linux.
These drops of reference files do not necessarily become part of
the source code in the Linux kernel, but rather are public
displays of the Protected Materials so that anyone has access to
them and can use them to construct similar file in Linux. The
first drop contains (a) a partially functioning port, or transfer,
of JFS from AIX to Linux; (b) a set of reference directories
(named ref/) which contain the AIX reference version of AIX/JFS;
(c) AIX/JFS-related utility files used to maintain and upkeep
AIX/JFS; and (d) a set of directories (named directory ref_utils/)
which contain the AIX reference version of utilities. Copies of
AIX/JFS files into Linux are shown in Table A, below. Table A
compares a 1999 version of AIX and shows the following
similarities, demonstrating copying of code, structures and/or
sequences.
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100. Denies the averments of paragraph 100, except admits that
IBM has properly and lawfully contributed to the development of
Linux and refers to the contributions (which are publicly
available) for their contents.
|
|
Table A [REMOVED]
|
|
These transfers of AIX/JFS to Linux are
in violation of the IBM Related Agreements, and are an improper
use of AIX for adaptation to a general operating system.
|
|
101. IBM has also improperly transferred
a UNIX/AIX-based enterprise volume management system ("AIX/EVMS")
to Linux. Again, this was done by IBM to transfer enterprise-class
capabilities from AIX to Linux, and was a violation of the IBM
Related Agreements and IBM's promise not to adapt AIX as a general
operating system for a non-IBM company. The purpose of AIX/EVMS is
to allow the management of disk storage in terms of logical
'volumes' in a large enterprise environment. Tools with this level
of sophistication and performance were entirely unavailable and
unknown to the open source development community prior to IBM's
improper transfer to Linux. The actual transfer "patch"
by IBM can be found at http://www.sourceforge.net/
project/ showfiles.php? group_id=25076& package_id=17436.
The first code drop of AIX/EVMS by IBM was v0.0.1, which occurred
on 03/21/2001. The first major release of AIX/EVMS by Linux was
v1.0.0, in Linux 2.4, which occurred on 03/27/2003. The latest
Linux release version of AIX/EVMS is v2.2.1, which occurred on
12/20/2003. The following table, Table B, identifies the AIX/EVMA
"patches" of source code improperly transferred by IBM
to the Linux 2.4 version.
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101. Denies the averments of paragraph 101, excpet admits that
IBM has properly and lawfully contributed to the development of
Linux and refers to the contributions (which are publicly
available) for their contents.
|
|
Table B [REMOVED]
|
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102. As with the other violations
described herein, these transfers by IBM constitute improper use
of AIX for and by others, improper transfers of AIX to others, and
improper adaptation of AIX as a general operating system for a
non-IBM company under the restrictions of the IBM Related
Agreements. In disregard of the IBM Related Agreements, IBM has
transferred this key enterprise technology from AIX to Linux.
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102. Denies the averments of paragraph 102, except refers to
the referenced document for its contents.
|
|
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103. [Missing from Second Amended Complaint]
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104. Sequent also had certain contractual
obligations and restrictions on its use of the UNIX System V code
that it licensed from AT&T, SCO's predecessor. These
restrictions, which are more fully stated in the Sequent
Agreements, also restricted Sequent's use of the modifications
they made to UNIX System V and derivative works of UNIX System V,
including Sequent's Dynix/ptx. Like IBM, Sequent agreed to
restrictions on Dynix/ptx, including that Dynix/ptx for or by
others, and that it would not transfer any part of Dynix/ptx to
parties who do not have a UNIX System V source code agreement with
SCO. Sequent also agreed that they would maintain all of Dynix/ptx
in confidence. In violation of these contractual restrictions, IBM
provided entire files of Dynix/ptx source code as a patch to Linux
2.4.1-01, including Read Copy Update ("RCU").
|
104. Denies the averments of paragraph 104, except admits that
Sequent licensed UNIX System V from AT&T, refers to the
referenced documents for their contents, admits that IBM has
properly and lawfully contributed to the development of Linux, and
refers to the contributions (which are publicly available) for
their contents.
|
|
105. RCU is a mechanism that can
significantly improve the performance and scalability of
multi-processor systems by allowing simultaneous access to data
without the need for expensive and time consuming locking
protocols. Dynix/ptx/RCU structures and sequences were originally
offerred as a patch to the Linux 2.4 kernel by IBM, with rather
limited functionality inside Linux 2.4. However, in the
development of Linux version 2.6, the deployment of Dynix/ptx/RCU
structures and sequences has spread into new uses inside Linux,
including networking, device drivers, list management, and
directory access. This demonstrates how improper contribution of a
few hundred lines from Dynix/ptx has had a massive impact on Linux
kernel efficiency, particularly relating to multi-processor
functionality and processor memory synchronization. Virtually the
entirre files identified in Table C that originated in Dynix/ptx
were published as a patch to Linux 2.4.1-01, with only minimal
changes.
|
105. Denies the averments of paragraph 105, excpet admits that
IBM has properly and lawfully contributed to the development of
Linux and refers to the contributions (which are publicly
available) for their contents.
|
|
Table C [REMOVED]
|
|
|
|
|
106. As stated, the entire files
specified above show direct line-by-line copying of the files with
the same name in Dynix as in Linux, with slight changes made to
reflect some variations between the two operating systems. That
the code in Linux comes from Dynix/ptx is further confirmed by the
commentary in the Linux patch that expressly states that it is
"[b]ased on a Dynix/ptx implementation by Paul McKenney..."
Mr. McKenney was formerly an engineer at Sequent, and is now
employed at IBM following IBM's acquisition of Sequent. After the
first initial improper contribution of RCU by IBM, RCU became more
widespread in the Linux kernel.
|
106. Denies the averments of paragraph 106, except admits that
Paul McKenney was employed at Sequent and is now employed at IBM
and that IBM has properly and lawfully contributed to the
development of Linux and refers to the contributions (which are
publicly available) for their contents.
|
|
107. Code from Dynix/ptx files, but less
than the entire file, was also copied line-for-line from DynixV
v4.6.1 to Linux 2.4.1-01, with the file name and file line number
in each code base identified appropriately.
|
107. Denies the averments of paragraph 107, excpet admits that
IBM has properly and lawfully contributed to the development of
Linux and refers to the contributions (which are publicly
available) for their contents.
|
|
Table D [REMOVED]
|
|
|
|
|
108. Although the actual count of lines
of code in each of these contributions appears small, the impact
is significant for a number of reasons: (a) In the case of JFS and
EVMS, the number of lines that can be conclusively proven with the
evidence currently available is shown. there is much more copying
that is anticipated to be found in discovery; (b) In the case of
RCU, a highly valuable and effective technological improvement
can be expressed rather succinctly in computer code; and (c) In
most cases, simple changes to code can have far reaching effects,
and once the technology is revealed, thousands of developers can
apply the technology to a myriad of places in the kernel.
|
108. Denies the averments of paragraph 108, excpet admits that
IBM has properly and lawfully contributed to the development of
Linux and refers to the contributions (which are publicly
available) for their contents.
|
IBM’s Coordination of Linux Development Efforts
|
IBM’s Coordination of Linux Development Efforts
|
|
100. On information and belief, IBM has knowingly induced,
encouraged, and enabled others to distribute proprietary
information in an attempt to conceal its own legal liability for
such distributions:
|
109[-1]. On information and belief, IBM has knowingly induced,
encouraged, and enabled others to distribute proprietary
information in an attempt to conceal its own legal liability for
such distributions:
|
109[-1]. Denies the averments of paragraph 109 (SCO's first),
except refers to the referenced document for its contents.
|
What is wrong about this [Linux] distribution, is basically the
millions of lines of code that we never have seen. We don’t know
if there are any patent infringements [in this code] with somebody
we don’t know. We don’t want to take the risk of being
sued for a patent infringement. That is why we don’t do
distributions, and that’s why we have distributors.
Because distributors are not so much exposed as we are. So that’s
the basic deal as I understand it.
|
What is wrong about this [Linux] distribution, is basically the
millions of lines of code that we never have seen. We don’t know
if there are any patent infringements [in this code] with somebody
we don’t know. We don’t want to take the risk of being
sued for a patent infringement. That is why we don’t do
distributions, and that’s why we have distributors.
Because distributors are not so much exposed as we are. So that’s
the basic deal as I understand it.
|
Karl-Heinz Strassemeyer, IBM The Register, 11/19/2002,
www.theregister.co.uk/content/
4/28183.html
|
Karl-Heinz Strassemeyer, IBM The Register,
11/19/2002, www.theregister.co.uk/content/
4/28183.html
|
101. IBM is affirmatively taking steps to destroy all value of
UNIX by improperly extracting and using the confidential and
proprietary information it acquired from UNIX and dumping that
information into the open source community. As part of this
effort, IBM has heavily invested in the following projects to
further eliminate the viability of UNIX:
|
110[-1]. IBM is affirmatively taking steps to destroy all value
of UNIX by improperly extracting and using the confidential and
proprietary information it acquired from UNIX and dumping that
information into the open source community. As part of this
effort, IBM has heavily invested in the following projects to
further eliminate the viability of UNIX:
|
110[-1]. Denies the averments of paragraph 110 (SCO's first).
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a)The Linux Technology Center was launched in 2001 with the
advertised intent and foreseeable
purpose of transferring and otherwise disposing of all or part of
UNIX, including its derivative works, modifications and methods,
into an open source Linux environment;
|
a)The Linux Technology Center was launched in 2001 with the
intent and foreseeable purpose of transferring and otherwise
disposing of all or part of UNIX, including its derivative works,
modifications and methods, into an open source Linux environment;
|
b) The IBM Linux Center of Competency was launched to assist
and train financial services companies in an accelerated transfer
of UNIX to Linux with the advertised intent and foreseeable
purpose of transferring and otherwise disposing of all or part of
UNIX, including its derivative works, modifications and methods
into open source.
|
b) The IBM Linux Center of Competency was launched to assist
and train financial services companies in an accelerated transfer
of UNIX to Linux with the advertised intent and foreseeable
purpose of transferring and otherwise disposing of all or part of
UNIX, including its derivative works, modifications and methods
into open source.
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c)A carrier-grade Linux project has been undertaken to use UNIX
source code, derivative works, modifications and methods for the
unlawful purpose of transforming Linux into an enterprise-hardened
operating system;
|
c)A carrier-grade Linux project has been undertaken to use UNIX
source code, derivative works, modifications and methods for the
unlawful purpose of transforming Linux into an enterprise-hardened
operating system;
|
d) A data center Linux project has been undertaken to use UNIX
source code, derivative works, modifications and methods for the
unlawful purpose of transforming Linux into an enterprise-hardened
operating system; and
|
d) A data center Linux project has been undertaken to use UNIX
source code, derivative works, modifications and methods for the
unlawful purpose of transforming Linux into an enterprise-hardened
operating system; and
|
e)Other projects and initiatives have been undertaken or
supported that further evidence the improper motive and means
exercised by IBM in its efforts to eliminate UNIX and replace it
with free Linux.
|
e)Other projects and initiatives have been undertaken or
supported that further evidence the improper motive and means
exercised by IBM in its efforts to eliminate UNIX and replace it
with free Linux.
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102. But for IBM’s coordination of the development of
enterprise Linux, and the misappropriation of UNIX to accomplish
that objective, the Linux development community would not have
timely developed enterprise quality software or customer support
necessary for widespread use in the enterprise market.
|
109[2]. But for IBM’s coordination of the development of
enterprise Linux, and the misappropriation of UNIX to accomplish
that objective, the Linux development community would not have
timely developed enterprise quality software or customer support
necessary for widespread use in the enterprise market.
|
109[-2]. Denies the averments of paragraph 109 (SCO's second).
|
FIRST CAUSE OF ACTION
|
FIRST CAUSE OF ACTION
|
FIRST CAUSE OF ACTION
|
(Breach of IBM Software Agreement)
|
(Breach of IBM Software Agreement)
|
|
103. Plaintiff incorporates and re-alleges paragraphs No.
1-102, above.
|
110[-2]. Plaintiff incorporates and re-alleges paragraphs No.
1-109, above.
|
110[-2]. Repeats and realleges, in response to paragraph 110
(SCO's second), its answers to the averments contained in
paragraphs 1 through 109 (SCO's second) and 110 (SCO's first) as
if fully set forth herein.
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104. As set forth above, SCO is the successor to AT&T under
that certain Software Agreement originally executed by and between
AT&T and IBM designated as SOFT-00015. The Software Agreement
specifies the terms and conditions for use of UNIX System V
source code by IBM.
|
111. As set forth above, SCO is the successor to AT&T under
that certain Software Agreement originally executed by and between
AT&T and IBM designated as SOFT-00015. The Software Agreement
specifies the terms and conditions for use of UNIX System V source
code, documentation and methods related
thereto, together with modifications and derivative works created
by IBM based on UNIX System V (collectively,
the "Software Products").
|
111. Denies the averments of paragraph 111, except states that
it is without information sufficient to form a belief as to the
truth of the first sentence of paragraph 111, and refers to the
referenced documents for its contents.
|
105. With respect to the scope of
rights granted for use of the System V
source code under Section 2.01 of the Software Agreement,
IBM received the following:
|
112. With respect to the rights granted for use of the Software
Products under Section 2.01 of the Software Agreement, IBM
received the following:
|
112. Denies the averments of paragraph 112, except refers to
the referenced document for its contents.
|
[A] personal, nontransferable and nonexclusive
right to use in the United States each Software
Product identified in the one or more Supplements hereto, solely
for Licensee’s own internal business purposes and solely
on or in conjunction with Designated CPUs for such Software
Product. 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. [Emphasis added.]
|
[A] personal, nontransferable and nonexclusive
right to use in the United States each Software
Product identified in the one or more Supplements hereto, solely
for Licensee’s own internal business purposes and solely
on or in conjunction with Designated CPUs for such Software
Product. 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. [Emphasis added.]
|
106. IBM has violated its grant of rights
under §2.01 of the Software Agreement by, inter
alia, modifying and assisting
others to modify the Software
Products (including System V source code, derivative works and
methods based thereon) for purposes other
than IBM’s own internal business purposes. By actively
supporting, assisting and promoting the transfer from
UNIX to Linux, and using its access to UNIX technology to
accomplish this objective, IBM is (a) using the Software Product
for external business purposes, which include use
for the benefit of Linus Torvalds, the general Linux community and
IBM’s Linux distribution partners, Red Hat, Inc. and
SuSE Linux AG and its subsidiaries;
and is (b) directly and indirectly preparing unauthorized
derivative works based on the Software Product and
unauthorized modifications thereto in violation of
§2.01 of the Software Agreement.
|
113. IBM has violated §2.01 of the Software Agreement by,
inter alia, using and
assisting others to use the Software
Products (including System V source code, derivative works,
documentation rrelated thereto and methods based thereon)
for external purposes that
are different from, and broader than,
IBM’s own internal business purposes. By actively
supporting, assisting and promoting the transfer of
UNIX technology to Linux, and using
its access to UNIX technology to accomplish this objective, IBM is
(a) using the Software Product for external business
purposes, which include use for the benefit of Linus
Torvalds, the general Linux community and IBM’s Linux
distribution partners, Red Hat, Inc., Novell,
Inc., SuSE Linux AG and their
respective subsidiaries; and is (b) directly and indirectly
preparing unauthorized derivative works based on the
Software Products and unauthorized
modifications thereto in violation of §2.01 of the
Software Agreement.
|
113. Denies the averments of paragraph 113.
|
|
114. In addition, § 2.01 limited use
to the United States. This limitation was modified in the Side
Letter to include other countries, but at no time was IBM granted
the right to use the Software Products (including System V source
code, derivative works, modifications, documentation related
thereto and methods based thereon) in India. On information and
belief, IBM has violated this restriction by allowing the
Protected Materials to be used in India.
|
114. Denies the averments of paragraph 114, except refers to
the referenced documents for their contents.
|
107. IBM agreed in §2.05 of the Software Agreement to the
following restrictions on use of the Software
Product (including System V source code, derivative works and
methods based thereon):
|
115. IBM agreed in §2.05 of the Software Agreement to the
following restrictions on use of the Software Product (including
System V source code, derivative works and methods based thereon):
|
115. Denies the averments of paragraph 115, except refers to
the referenced documents for its contents.
|
No right is granted by this Agreement for the use of Software
Products directly for others, or for any use of Software
Products by others.
|
No right is granted by this Agreement for the use of Software
Products directly for others, or for any use of Software
Products by others.
|
108. IBM has breached §2.05 of the Software Agreement by,
inter alia, actively promoting and allowing use of the
Software Products and development methods related thereto in an
open and hostile attempt to destroy the entire economic value of
the Software Products and plaintiff’s rights to protect the
proprietary nature of the Software Products. By way of example and
not limitation, IBM has used protected UNIX methods for others in
accelerating development of the 2.4.x kernel and 2.5.x
Linux kernel in, among others, the following areas: (a)
scalability improvements, (b) performance measurement and
improvements, (c) serviceability and error logging improvements,
(d) NUMA scheduler and other scheduler improvements, (e) Linux PPC
32- and 64-bit support, (f) AIX Journaling File System, (g)
enterprise volume management system to other Linux components, (h)
clusters and cluster installation, including distributed lock
manager and other lock management technologies, (i) threading, (j)
general systems management functions, and (k) other areas. But for
the use by IBM of these protected UNIX methods in Linux
development, the Linux 2.4.x kernel and
2.5.x kernel capacity to perform high-end enterprise computing
functions would be severely limited.
|
116. IBM has breached §2.05 of the Software Agreement by,
inter alia, actively promoting and allowing use of the
Software Products, documentation and
development methods related thereto in an open and hostile attempt
to destroy the entire economic value of the Software Products and
plaintiff’s rights to protect the proprietary nature of the
Software Products. By way of example and not limitation, IBM has
used protected UNIX source code,
documentation, development notes and methods for others in
accelerating development of the 2.4.x kernel and above
in, among others, the following areas: (a) scalability
improvements, (b) performance measurement and improvements, (c)
serviceability and error logging improvements, (d) NUMA scheduler
and other scheduler improvements, (e) Linux PPC 32- and 64-bit
support, (f) AIX Journaling File System, (g) enterprise volume
management system to other Linux components, (h) clusters and
cluster installation, including distributed lock manager and other
lock management technologies, (i) threading, (j) general systems
management functions, and (k) other areas. But for the use by IBM
of these protected UNIX methods in Linux development, the Linux
2.4.x kernel, 2.5.x kernel,
and 2.6.x kernel's capacity to perform high-end enterprise
computing functions would be severely limited.
|
116. Denies the averments of paragraph 116.
|
109. IBM agreed in §7.10 of the Software Agreement to the
following restrictions on transfer of the Software
Product, including AIX as a derivative work of UNIX System V:
|
117. IBM agreed in §7.10 of the Software Agreement to the
following restrictions on transfer of the Software
Product, including AIX as a derivative work of UNIX System V:
|
117. Denies the averments of paragraph 117, except refers to
the referenced document for its contents.
|
[N]othing in this Agreement grants to Licensee the right to
sell, lease or otherwise transfer or dispose of a Software Product
in whole or in part.
|
[N]othing in this Agreement grants to Licensee the right to
sell, lease or otherwise transfer or dispose of a Software Product
in whole or in part.
|
110. IBM has breached §7.10 of the Software Agreement by,
inter alia, transferring portions of the Software Product
(including System V source code, derivative works and methods
based thereon), including but not limited to the AIX Journaling
File System and all other UNIX-based source code publicly
announced by IBM, to Linus Torvalds for open distribution to the
general public under a software license that destroys the
proprietary and confidential nature of the Software Products.
|
118. IBM has breached §7.10 of the Software Agreement by,
inter alia, transferring portions of the Software Product
(including System V source code, documentation,
modifications, derivative works and methods based thereon),
including but not limited to the AIX Journaling File System and
all other UNIX-based source code publicly announced by IBM, to
Linus Torvalds for open distribution to the general public under a
software license that destroys the proprietary and confidential
nature of the Software Products.
|
118. Denies the averments of paragraph 118.
|
111. IBM has further stated its intention to transfer the
entirety of AIX into open source in anticipatory violation of its
obligations under §7.10 of the Software Agreement.
|
119. IBM has further stated its intention to transfer the
entirety of AIX into open source in anticipatory violation of its
obligations under §7.10 of the Software Agreement.
|
119. Denies the averments of paragraph 119.
|
112. IBM agreed in Side Letter ¶9,
a substitute provision to §7.06(a) of the Software Agreement,
to the following restrictions on confidentiality of
the Software Product, including AIX as a derivative work of UNIX
System V:
|
120. IBM agreed in Side Letter ¶9,
a substitute provision to §7.06(a) of the Software Agreement,
to the following restrictions on confidentiality of
the Software Product, including AIX as a derivative work of UNIX
System V:
|
120. Denies the averments of paragraph 120, except refers to
the referenced document for its contents.
|
Licensee agrees that it shall hold Software Products subject to
this Agreement in confidence for AT&T. Licensee
further agrees that it shall not make any disclosure
of such Software Products to anyone, except to employees of
Licensee to whom such disclosure is necessary to the use for which
rights are granted hereunder. Licensee shall appropriately notify
each employee to whom any such disclosure is made that such
disclosure is made in confidence and shall be kept in confidence
by such employee.
|
Licensee agrees that it shall hold Software Products subject to
this Agreement in confidence for AT&T. Licensee
further agrees that it shall not make any disclosure
of such Software Products to anyone, except to employees of
Licensee to whom such disclosure is necessary to the use for which
rights are granted hereunder. Licensee shall appropriately notify
each employee to whom any such disclosure is made that such
disclosure is made in confidence and shall be kept in confidence
by such employee.
|
113. In recognition of SCO’s right of confidentiality of the
Software Products, IBM directs all customers who need to view AIX
source code to first obtain a “read only” source code license
from SCO as a condition to viewing any part of the
AIX source code. For example, SCO
received a letter on or about March 4, 2003 from Lockheed Martin
Corporation requesting verification of the existence of a Software
Agreement by and between Lockheed and SCO as a condition to
Lockheed obtaining access to view AIX source code. The letter
stated, in part, as follows:
|
121. In recognition of SCO’s right of confidentiality of the
Software Products, IBM directs all customers who need to view AIX
source code to first obtain a “read only” source code license
from SCO as a condition to viewing any part of AIX.
For example, SCO received a letter on or about March 4, 2003 from
Lockheed Martin Corporation requesting verification of the
existence of a Software Agreement by and between Lockheed and SCO
as a condition to Lockheed obtaining access to view AIX source
code. The letter stated, in part, as follows:
|
121. Denies the averments of paragraph 121 as they relate to
IBM, refers to the referenced document for its contents, and
states that IBM is without information sufficient to form a belief
as to the truth of the averments as they relate to any other
person or entity.
|
LMATM is in the process of licensing [AIX] from IBM to be used
for integration purposes only. Per the attached supplement to the
subject document, contained within the AIX source code is third
party IP which must be licensed from the owner prior to IBM
providing the AIX source code to any licensee (see Prerequisite
Source Licenses, Para.2.2).
|
LMATM is in the process of licensing [AIX] from IBM to be used
for integration purposes only. Per the attached supplement to the
subject document, contained within the AIX source code is third
party IP which must be licensed from the owner prior to IBM
providing the AIX source code to any licensee (see Prerequisite
Source Licenses, Para.2.2).
|
* * *
|
* * *
|
2.2 Prerequisite Source License. IBM cannot
disclose (includes viewing) certain Third-Party Source
Code to any party who does not have a license that permits
access to the Code. Prior to receiving or accessing the
Source Code described above in this Supplement, LMATM must obtain
the following Source Code Licenses:
|
2.2 Prerequisite Source License. IBM cannot
disclose (includes viewing) certain Third-Party Source
Code to any party who does not have a license that permits
access to the Code. Prior to receiving or accessing the
Source Code described above in this Supplement, LMATM must obtain
the following Source Code Licenses:
|
a) AT&T Technologies, Inc., AT&T Information
Systems, Inc., or UNIX ™ Systems Laboratory Software Agreement
No. SOFT---and AT&T Information Systems, Inc. Software
Agreement Supplement for Software Product AT&T UNIX System V
Release 4.0, or AT&T Information Systems, Inc. Schedule for
Upgrades (from UNIX System V Release 3.1 to UNIX System V Release
3.2 or from UNIX System V Release 3.1 International Edition to
UNIX System V Release 3.2 International Edition) or equivalent
SCO Group License.
|
a) AT&T Technologies, Inc., AT&T Information
Systems, Inc., or UNIX ™ Systems Laboratory Software Agreement
No. SOFT---and AT&T Information Systems, Inc. Software
Agreement Supplement for Software Product AT&T UNIX System V
Release 4.0, or AT&T Information Systems, Inc. Schedule for
Upgrades (from UNIX System V Release 3.1 to UNIX System V Release
3.2 or from UNIX System V Release 3.1 International Edition to
UNIX System V Release 3.2 International Edition) or equivalent
SCO Group License.
|
114. IBM has breached its obligation of confidentiality by
contributing portions of the Software Product (including System V
source code, derivative works and methods based thereon) to open
source development of Linux and by using UNIX development methods
in making modifications to Linux 2.4.x and
2.5.x, which are in material part, unauthorized derivative
works of the Software Product. These include, among others, (a)
scalability improvements, (b) performance measurement and
improvements, (c) serviceability and error logging improvements,
(d) NUMA scheduler and other scheduler improvements, (e) Linux PPC
32- and 64-bit support, (f) AIX Journaling File System, (g)
enterprise volume management system to other Linux components, (h)
clusters and cluster installation, including distributed lock
manager and other lock management technologies, (i) threading, (j)
general systems management functions, and (k) others.
|
122. IBM has breached its obligation of confidentiality,
and has failed to otherwise hold the Software Products in
confidence for SCO by contributing portions of the Software
Product (including System V source code, modifications,
derivative works and methods based thereon,
together with documentation and development notes) to open
source development of Linux and by using UNIX development methods
in making modifications to Linux 2.4.x kernel
and above, which are in material part, unauthorized
derivative works of the Software Product. These include, among
others, (a) scalability improvements, (b) performance measurement
and improvements, (c) serviceability and error logging
improvements, (d) NUMA scheduler and other scheduler improvements,
(e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File
System, (g) enterprise volume management system to other Linux
components, (h) clusters and cluster installation, including
distributed lock manager and other lock management technologies,
(i) threading, (j) general systems management functions, and (k)
others.
|
122. Denies the averments of paragraph 122.
|
115. IBM has further stated its intention to transfer the
entirety of AIX into open source in anticipatory violation of its
obligations under §7.06 (a) of the Software Agreement.
|
123. IBM has further stated its intention to transfer the
entirety of AIX into open source in anticipatory violation of its
obligations under §7.06 (a) of the Software Agreement.
|
123. Denies the averments of paragraph 123.
|
116. Export of UNIX technology is controlled by the United
States government. Thus, SCO, IBM and all other UNIX vendors are
subject to strict export control regulations with respect to any
UNIX-based customer distribution. To this end, IBM agreed in §4.01
of the Software Agreement to restrictions on export of
the Software Product (including System V source code, derivative
works and methods based thereon), as follows:
|
124. Export of UNIX technology is controlled by the United
States government. Thus, SCO, IBM and all other UNIX vendors are
subject to strict export control regulations with respect to any
UNIX-based customer distribution. To this end, IBM agreed in §4.01
of the Software Agreement to restrictions on export of
the Software Product (including System V source code, derivative
works, modifications, and methods
based thereon), as follows:
|
124. Denies the averments of paragraph 124, except refers to
the referenced document for its contents, states that the
averments purport to characterize the laws of the United States
and to those laws for their contents.
|
Licensee agrees that it will not, without the prior written
consent of AT&T, export, directly or indirectly,
Software Products covered by this Agreement to any country outside
of the United States.
|
Licensee agrees that it will not, without the prior written
consent of AT&T, export, directly or indirectly,
Software Products covered by this Agreement to any country outside
of the United States.
|
This provision was later modified to allow export rights to
several countries outside the United States. However, no
permission has ever been granted by SCO or its predecessors to IBM
to allow it to indirectly make available all or portions of the
Software Product to countries outside the United States that are
subject to strict technology export control by the United States
government: viz., Cuba, Iran, Syria, North Korea and Libya.
IBM is ignoring and attempting to circumvent the export control
restrictions that apply to UNIX as it accelerates development of
Linux for enterprise use.
|
This provision was later modified to allow export rights to
several countries outside the United States. However, no
permission has ever been granted by SCO or its predecessors to IBM
to allow it to indirectly make available all or portions of the
Software Product to countries outside the United States that are
subject to strict technology export control by the United States
government: viz., Cuba, Iran, Syria, North Korea and Libya.
IBM is ignoring and attempting to circumvent the export control
restrictions that apply to UNIX as it accelerates development of
Linux for enterprise use.
|
117. Thus, IBM has breached §4.01 of the Software
Agreement by, inter alia, making extensive, advanced
multiprocessor scaling functions of the Software Product,
including derivative works and methods based thereon, available
for free distribution to anyone in the world with a computer. As
it relates to Linux 2.4.x and 2.5.x
releases, IBM is indirectly making the Software Product and
operating system modifications available to countries and
organizations in those countries for scaling single processor
computers into multi-processor supercomputers that can be used for
encryption, scientific research and weapons research.
|
125. Thus, IBM has breached §4.01 of the Software
Agreement by, inter alia, making extensive, advanced
multiprocessor scaling functions of the Software Product,
including derivative works and methods based thereon, available
for free distribution to anyone in the world with a computer. As
it relates to Linux 2.4.x and above
releases, IBM is indirectly making the Software Product and
operating system modifications available to countries and
organizations in those countries for scaling single processor
computers into multi-processor supercomputers that can be used for
encryption, scientific research and weapons research.
|
125. Denies the averments of paragraph 125.
|
|
126. IBM was aware of the importance of
these restrictions and the need to protect the confidentiality of
UNIX System V, including modifications and derivatives such as AIX
and Dynix/ptx. Indeed, Amendment X, Paragraph 3.7, provides
examples under which IBM is entitled to disclose UNIX and AIX
source code to its development partners -- and examples under
which IBM is not entitled to make such disclosures. Paragraph 3.7
of Amendment X provides as follows:
|
126. Denies the averments of paragraph 126, except refers to
the referenced document for its contents.
|
|
The following illustrations arre
intended to clarify and illustrate the relief provided in
Subsection 2.1 of this Amendment [relating to disclosure of source
code to contractors].
Company A, sublicensee of the
Sublicensed Product [AIC] is a general computing system
manufacturing firm. IBM may distribute Source Copies to Company A
for Authorized Purposes.
However, IBM may not
distribute Source Copies to Company A for purposes of making
modifications to adapt the Sublicensed Products [AIX] as a general
operating systtem for Company A's general computer hardware
system. (Emphasis added).
|
|
127. As is made perfectly clear in
Paragraph 3.7 of Amendment X, IBM may not use any Sublicensed
Product from SCO, including AIX, for the purposed of making
modifications to adapt AIX as a competing general operating
system. IBM nonetheless has chosen to adapt UNIX, AIX, and
Dynix/ptx for use in a competing operating system (i.e. Linux) in
violation of its obligations to SCO.
|
127. Denies the averments of paragraph 127, and refers to the
referenced document for its contents.
|
118. SCO has the self-executing contractual right to terminate
IBM’s right to use and distribute the Software Product,
including derivative works and methods based thereon, if IBM fails
to fulfill one or more of its obligations under the Software
Agreement. This authority is contractually granted under the
following provisions of the IBM Related Agreements:
|
128. SCO has the self-executing contractual right to terminate
IBM’s right to use and distribute the Software Product,
including derivative works and methods based thereon, if IBM fails
to fulfill one or more of its obligations under the Software
Agreement. This authority is contractually granted under the
following provisions of the IBM Related Agreements:
|
128. Denies the averments of paragraph 128, excpet refers to
the referenced documents for their contents.
|
If Licensee fails to fulfill one or more of its obligations
under this Agreement, AT&T may, upon its election and in
addition to any other remedies that it may have, at any time
terminate all the rights granted by it hereunder by not less than
two (2) months’ written notice to Licensee specifying any such
breach, unless within the period of such notice all breaches
specified therein shall have been remedied; upon such termination
Licensee shall immediately discontinue use of and return or
destroy all copies of Software Products subject to this Agreement.
[Software Agreement, §6.03]
|
If Licensee fails to fulfill one or more of its obligations
under this Agreement, AT&T may, upon its election and in
addition to any other remedies that it may have, at any time
terminate all the rights granted by it hereunder by not less than
two (2) months’ written notice to Licensee specifying any such
breach, unless within the period of such notice all breaches
specified therein shall have been remedied; upon such termination
Licensee shall immediately discontinue use of and return or
destroy all copies of Software Products subject to this Agreement.
[Software Agreement, §6.03]
|
Regarding Section 6.03 of the Software Agreement and Sections
2.07 and 3.03 of the Sublicensing Agreement, we will not terminate
your rights for breach, nor will we give notice of termination
under such Sections, for breaches we consider to be immaterial. We
agree to lengthen the notice period referenced in such Sections
from two (2) months to one hundred (100) days. If a breach occurs
that causes us to give notice of termination, you may remedy the
breach to avoid termination if you are willing and able to do so.
In the event that a notice of termination is given to you under
either of such Sections and you are making reasonable efforts to
remedy the breach but you are unable to complete the remedy in the
specified notice period, we will not unreasonably withhold our
approval of a request by you for reasonable extension of such
period. We will also consider a reasonable extension under Section
2.07 of the Sublicensing Agreement in the case of a Distributor
who is making reasonable efforts to remedy a breach.
|
Regarding Section 6.03 of the Software Agreement and Sections
2.07 and 3.03 of the Sublicensing Agreement, we will not terminate
your rights for breach, nor will we give notice of termination
under such Sections, for breaches we consider to be immaterial. We
agree to lengthen the notice period referenced in such Sections
from two (2) months to one hundred (100) days. If a breach occurs
that causes us to give notice of termination, you may remedy the
breach to avoid termination if you are willing and able to do so.
In the event that a notice of termination is given to you under
either of such Sections and you are making reasonable efforts to
remedy the breach but you are unable to complete the remedy in the
specified notice period, we will not unreasonably withhold our
approval of a request by you for reasonable extension of such
period. We will also consider a reasonable extension under Section
2.07 of the Sublicensing Agreement in the case of a Distributor
who is making reasonable efforts to remedy a breach.
|
In any event our respective representatives will exert their
mutual good faith best efforts to resolve any alleged breach short
of termination. [Side Letter, ¶
5]
|
In any event our respective representatives will exert their
mutual good faith best efforts to resolve any alleged breach short
of termination. [Side Letter, ¶
5]
|
119. Consistent with these rights, on March 6, 2003, plaintiff
delivered a notice of termination to Sam Palmisano, Chief
Executive Officer of IBM (the “AIX Termination Notice”) for
IBM’s breaches of the Software (and Sublicensing) Agreement by
IBM.
|
129. Consistent with these rights, on March 6, 2003, plaintiff
delivered a notice of termination to Sam Palmisano, Chief
Executive Officer of IBM (the “AIX Termination Notice”) for
IBM’s breaches of the Software (and Sublicensing) Agreement by
IBM.
|
129. Denies the averments of paragraph 129, except refers to
the referenced document for its contents.
|
120. Following delivery of the AIX Termination Notice,
plaintiff took every reasonable step to meet and confer with IBM
regarding IBM’s breach of the Software Agreement and Related
Agreements.
|
130. Following delivery of the AIX Termination Notice,
plaintiff took every reasonable step to meet and confer with IBM
regarding IBM’s breach of the Software Agreement and Related
Agreements.
|
130. Denies the averments of paragraph 130.
|
121. IBM has disregarded SCO's rights under the AT&T
/ IBM Agreement by failing to undertake any efforts to cure
its numerous and flagrant violations thereunder. As a result,
effective June 13, 2003, the AT&T / IBM
UNIX Agreement is
terminated and IBM has no further rights thereunder.
|
131. IBM has disregarded SCO's rights under the IBM Related
Agreement by failing to undertake any efforts to cure its numerous
and flagrant violations thereunder. As a result, effective June
13, 2003, the IBM Related Agreements
are terminated and IBM has no further rights thereunder.
|
131. Denies the averments of paragraph 131.
|
122. IBM nonetheless continues to operate under the AT&T
/ IBM Agreement, and use the Software Products and Source
Code thereunder as though its rights under the Agreement have not
been terminated.
|
132. IBM nonetheless continues to operate under the IBM Related
Agreements, and use the Software
Products and Source Code thereunder as though its rights under the
Agreement have not been terminated.
|
132. Denies the averments of paragraph 132, excpet refers to
the referenced documents for their contents, and admits that IBM
lawfully uses certain software products and source code.
|
123. IBM no longer has any right to use the UNIX Software Code
or make modifications or derivative works thereunder. In fact, IBM
is contractually obligated to “immediately discontinue use of
and return or destroy all copies of Software Products subject to
this Agreement.”
|
133. IBM no longer has any right to use the UNIX Software Code
or make modifications or derivative works thereunder. In fact, IBM
is contractually obligated to “immediately discontinue use of
and return or destroy all copies of Software Products subject to
this Agreement.”
|
133. Denies the averments of paragraph 133.
|
124. As a result of IBM’s breaches before termination, SCO
has been damaged in the marketplace for violations by IBM in an
amount to be proven at trial, but not less than $1 billion.
|
134. As a result of IBM’s breaches before termination, SCO
has been damaged in the marketplace for violations by IBM in an
amount to be proven at trial, but not less than $1 billion.
|
134. Denies the averments of paragraph 134.
|
125. In addition, and to the extent that IBM continues to
completely repudiate its obligations regarding the Software
Product, plaintiff will sustain substantial continuing and ongoing
damages. SCO is entitled to damages in an
amount measured by the benefits conferred upon IBM by its ongoing,
improper use of the Software Products. These damages
include the full amount IBM receives as a result of its ongoing
sales of AIX, including software, services and hardware.
|
135. In addition, and to the extent that IBM continues to
completely repudiate its obligations regarding the Software
Product, plaintiff will sustain substantial continuing and ongoing
damages. These damages include the full amount IBM receives as a
result of its ongoing sales of AIX, including software, services
and hardware.
|
135. Denies the averments of paragraph 135.
|
126. Moreover, if IBM does not return or destroy all source and
binary copies of the Software Products and/or continues to
contribute some or all of these protected materials to open
source, SCO will be irreparably harmed. As a result, SCO is
entitled to a permanent injunction requiring IBM to return or
destroy all source code and binary copies of the Software Products
and/or prohibiting IBM from further contributions of the protected
Software Products into open source.
|
136. Moreover, if IBM does not return or destroy all source and
binary copies of the Software Products and/or continues to
contribute some or all of these protected materials to open
source, SCO will be irreparably harmed. As a result, SCO is
entitled to a permanent injunction requiring IBM to return or
destroy all source code and binary copies of the Software Products
and/or prohibiting IBM from further contributions of the protected
Software Products into open source.
|
136. Denies the averments of paragraph 136.
|
SECOND CAUSE OF ACTION
|
SECOND CAUSE OF ACTION
|
SECOND CAUSE OF ACTION
|
(Breach of IBM Sublicensing Agreement)
|
(Breach of IBM Sublicensing Agreement)
|
|
127. Plaintiff incorporates and re-alleges paragraphs No.
1-126, above.
|
137. Plaintiff incorporates and re-alleges paragraphs No.
1-136, above.
|
137. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 136 as if fully set forth
herein.
|
128. As set forth above, SCO is the successor to AT&T under
that certain Sublicensing Agreement originally executed by and
between AT&T and IBM designated as SUB-00015A. The
Sublicensing Agreement grants the right to distribute
object-based code of UNIX System V and modifications
thereto and derivative works based thereon.
|
138. As set forth above, SCO is the successor to AT&T under
that certain Sublicensing Agreement originally executed by and
between AT&T and IBM designated as SUB-00015A. The
Sublicensing Agreement grants the right to distribute
object-based code of UNIX System V and modifications
thereto and derivative works based thereon.
|
138. Denies the averments of paragraph 138, except refers to
the referenced document for its contents.
|
129. SCO has terminated IBM’s right to use and distribute the
Software Product, including derivative works and methods based
thereon as of the AIX Termination Date, June 13, 2003.
|
139. SCO has terminated IBM’s right to use and distribute the
Software Product, including derivative works and methods based
thereon as of the AIX Termination Date, June 13, 2003.
|
139. Denies the averments of paragraph 139.
|
130. From and after the AIX Termination Date, any and all
distributions of AIX by IBM is in violation of the Sublicensing
Agreement.
|
140. From and after the AIX Termination Date, any and all
distributions of AIX by IBM are in violation of the Sublicensing
Agreement.
|
140. Denies the averments of paragraph 140.
|
131. To the extent that IBM
continues to completely repudiate its obligations under the
Sublicensing Agreement, plaintiff will
sustain substantial continuing and ongoing damages.
SCO is entitled to damages in an amount
measured by the benefits conferred upon IBM by its ongoing,
improper use of the Software Products. These damages
include the full amount IBM receives as a result of its ongoing
sales of AIX, including software, services and hardware.
|
141. IBM has disregarded and
continues to completely disregard and
repudiate its obligations under the Sublicensing Agreement, to
plaintiff's substantial,
continuing and ongoing damage. These damages include the
full amount IBM receives as a result of its ongoing sales of AIX,
including software, services and hardware.
|
141. Denies the averments of paragraph 141.
|
132. Moreover, if IBM does not return or destroy all source and
binary copies of the Software Products and/or continues to
contribute some or all of these protected materials to open
source, SCO will be irreparably harmed. As a result, SCO is
entitled to a permanent injunction requiring IBM to return or
destroy all source code and binary copies of the Software Products
and/or prohibiting IBM from further contributions of the protected
Software Products into open source.
|
142. Moreover, if IBM does not return or destroy all source and
binary copies of the Software Products and/or continues to
contribute some or all of these protected materials to open
source, SCO will be irreparably harmed. As a result, SCO is
entitled to a permanent injunction requiring IBM to return or
destroy all source code and binary copies of the Software Products
and/or prohibiting IBM from further contributions of the protected
Software Products into open source.
|
142. Denies the averments of paragraph 142.
|
THIRD CAUSE OF ACTION
|
THIRD CAUSE OF ACTION
|
THIRD CAUSE OF ACTION
|
(Breach of Sequent Software Agreement)
|
(Breach of Sequent Software Agreement)
|
|
133. Plaintiff incorporates and re-alleges paragraphs No.
1-132, above.
|
143. Plaintiff incorporates and re-alleges paragraphs No.
1-142, above.
|
143. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 143 as if fully set forth
herein.
|
134. As set forth above, SCO is the successor to AT&T under
that certain Software Agreement originally executed by and between
AT&T and Sequent designated as SOFT-000321. The Software
Agreement specifies the terms and conditions for use of UNIX
System V source code
by Sequent.
|
144. As set forth above, SCO is the successor to AT&T under
that certain Software Agreement originally executed by and between
AT&T and Sequent designated as SOFT-000321. The Software
Agreement specifies the terms and conditions for use of UNIX
System V source code, documentation and
methods related thereto, together with mmodifications and
derivative works created by IBM/Sequent based on UNIX System V
(collectively, the "Software Products").
|
144. Denies the averments of paragraph 144, except states that
it is without information sufficient to form a belief as to the
truth of the first sentence of paragraph 144, and refers to the
referenced document for its contents.
|
135. With respect to the scope of rights granted for use of the
System V source code under Section 2.01 of the Software Agreement,
Sequent received the following:
|
145. With respect to the scope of rights granted for use of the
System V source code under Section 2.01 of the Sequent
Software Agreement, Sequent received the following:
|
145. Denies the averments of paragraph 145, except refers to
the referenced document for its contents.
|
[A] personal, nontransferable and nonexclusive
right to use in the United States each Software
Product identified in the one or more Supplements hereto, solely
for Licensee’s own internal business purposes and solely
on or in conjunction with Designated CPUs for such Software
Product. 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. [Emphasis added.]
|
[A] personal, nontransferable and nonexclusive
right to use in the United States each Software
Product identified in the one or more Supplements hereto, solely
for Licensee’s own internal business purposes and solely
on or in conjunction with Designated CPUs for such Software
Product. 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. [Emphasis added.]
|
136. IBM has violated the grant of rights
to Sequent under §2.01 of the Sequent Software
Agreement by, inter alia, modifying and assisting others to
modify the Software Products (including System V source code,
derivative works and methods based thereon) for purposes other
than Sequent and/or IBM’s own internal business
purposes. By actively supporting, assisting and promoting the
transfer from UNIX to Linux, and using its access to UNIX
technology to accomplish this objective, IBM is (a) using the
Software Product for external business purposes,
which include use for the benefit of Linus Torvalds, the general
Linux community and IBM’s Linux distribution partners, Red Hat,
Inc. and SuSE Linux AG and its
subsidiaries; and is (b) directly and indirectly preparing
unauthorized derivative works based on the Software
Product and unauthorized modifications thereto in
violation of §2.01 of the Sequent Software Agreement.
|
146. IBM has violated §2.01 of the Sequent Software
Agreement by, inter alia, modifying and assisting others to
modify the Software Products (including System V source code,
derivative works, documentation related
thereto and methods based thereon) for purposes other
than Sequent and/or IBM’s own internal business
purposes. By actively supporting, assisting and promoting the
transfer from UNIX to Linux, and using its access to UNIX
technology to accomplish this objective, IBM is (a) using the
Software Product for external business purposes,
which include use for the benefit of the
Open Source Development Laboratory ("PSDL"), IBM's
various joint venture partners in OSDL, Linus Torvalds, the
general Linux community and IBM’s Linux distribution partners,
Red Hat, Inc., Novell, Inc. and SuSE
Linux AG and their respective
subsidiaries; and is (b) directly and indirectly preparing
unauthorized derivative works based on the Software
Product and unauthorized modifications thereto in
violation of §2.01 of the Sequent Software Agreement.
|
146. Denies the averments of paragraph 146 as they relate to
IBM and states that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 146 as they
relate to any other person or entity.
|
|
147. In addition, Section 2.01 limited
use to the United States. At no time was Sequent granted the right
to use the Software Products (including System V source code,
derivative works, modifications, documentation related thereto and
methods based thereon) in India. On information and belief, IBM
has violated this restriction by allowing the Protected Materials
to be used in India.
|
147. Denies the averments of paragraph 147, except refers to
the referenced document for its contents.
|
137. Sequent agreed in §2.05 of the Software Agreement to
the following restrictions on use of the Software
Product (including System V source code, derivative works and
methods based thereon):
|
148. Sequent agreed in §2.05 of the Software Agreement to
the following restrictions on use of the Software
Product (including System V source code, modifications,
derivative works, documentation related
thereto and methods based thereon):
|
148. Denies the averments of paragraph 148, except refers to
the referenced document for its contents.
|
No right is granted by this Agreement for the use of Software
Products directly for others, or for any use of Software
Products by others.
|
No right is granted by this Agreement for the use of Software
Products directly for others, or for any use of Software
Products by others.
|
138. IBM has breached Sequent’s obligations under §2.05
of the Sequent Software Agreement by, inter alia, actively
promoting and allowing use of the Software Products and
development methods related thereto in an open and hostile attempt
to destroy the entire economic value of the Software Products and
plaintiff’s rights to protect the proprietary nature of the
Software Products. Particularly, IBM has caused all or materially
all of DYNIX/ptx-based NUMA source code and methods, and RCU
source code and methods, to be used for the benefit of Linux. But
for the use by IBM of these protected UNIX methods in Linux
development, the Linux 2.4.x kernel and
2.5.x kernel capacity to perform high-end enterprise
computing functions would be severely limited.
|
149. IBM has breached Sequent’s obligations under §2.05
of the Sequent Software Agreement by, inter alia, actively
promoting and allowing use of the Software Products and
development methods related thereto in an open and hostile attempt
to destroy the entire economic value of the Software Products and
plaintiff’s rights to protect the proprietary nature of the
Software Products. Particularly, IBM has caused all or materially
all of DYNIX/ptx-based NUMA source code and methods, and RCU
source code and methods, to be used for the benefit of Linux. But
for the use by IBM of these protected UNIX methods in Linux
development, the Linux 2.4.x kernel through
2.6.x kernel's capacity to
perform high-end enterprise computing functions would be severely
limited.
|
149. Denies the averments of paragraph 149.
|
139. IBM has even gone so far as to publish the DYNIX/ptx
copyright as part of the source code and documentation
contribution of UNIX-derived RCU technology it has improperly made
available to the open source community. The following copyright
attribution is found in Linux kernel 2.4.x:
|
150. IBM has even gone so far as to publish the DYNIX/ptx
copyright as part of the source code and documentation
contribution of UNIX-derived RCU technology it has improperly made
available to the open source community. The following copyright
attribution is found in Linux kernel 2.4.x:
|
150. Denies the averments of paragraph 150, except refers to
the referenced code and documentation for their contents.
|
Copyright (c) International Business Machines Corp., 2001 This
program is free software; you can redistribute it and/or modify it
under the terms of the GNU General Public License as published by
the Free Software Foundation; either version 2 of the License, or
(at your option) any later version. This program is distributed in
the hope that it will be useful, but WITHOUT ANY WARRANTY; without
even the implied warranty of MERCHANTABILITY or FITNESS FOR A
PARTICULAR PURPOSE. See the GNU General Public License for more
details. You should have received a copy of the GNU General Public
License along with this program; if not, write to the Free
Software Foundation, Inc., 59 Temple Place - Suite 330, Boston, MA
02111-1307, USA. Author: Dipankar Sarma (Based on a Dynix/ptx
implementation by Paul Mckenney.
|
Copyright (c) International Business Machines Corp., 2001 This
program is free software; you can redistribute it and/or modify it
under the terms of the GNU General Public License as published by
the Free Software Foundation; either version 2 of the License, or
(at your option) any later version. This program is distributed in
the hope that it will be useful, but WITHOUT ANY WARRANTY; without
even the implied warranty of MERCHANTABILITY or FITNESS FOR A
PARTICULAR PURPOSE. See the GNU General Public License for more
details. You should have received a copy of the GNU General Public
License along with this program; if not, write to the Free
Software Foundation, Inc., 59 Temple Place - Suite 330, Boston, MA
02111-1307, USA. Author: Dipankar Sarma (Based on a Dynix/ptx
implementation by Paul Mckenney.
|
140. This publication of the RCU copyright is an example of
IBM’s blatant disregard of SCO’s rights to control the use of
the Software Product, including derivative works and modifications
thereof, pursuant to §2.05 of the Sequent Software Agreement.
|
151. This publication of the RCU copyright is an example of
IBM’s blatant disregard of SCO’s rights to control the use of
the Software Product, including derivative works and modifications
thereof, pursuant to §2.05 of the Sequent Software Agreement.
|
151. Denies the averments of paragraph 151.
|
141. Sequent agreed in §7.10 of the Sequent Software
Agreement to the following restrictions on transfer of
the Software Product, including DYNIX/ptx as a derivative work of
UNIX System V:
|
152. Sequent agreed in §7.10 of the Sequent Software
Agreement to the following restrictions on transfer of
the Software Product, including DYNIX/ptx as a derivative work of
UNIX System V:
|
152. Denies the averments of paragraph 152, except refers to
the referenced document for its contents.
|
[N]othing in this Agreement grants to Licensee the right to
sell, lease or otherwise transfer or dispose of a Software Product
in whole or in part.
|
[N]othing in this Agreement grants to Licensee the right to
sell, lease or otherwise transfer or dispose of a Software Product
in whole or in part.
|
142. IBM has breached Sequent’s obligations under §7.10
of the Sequent Software Agreement by, inter alia,
transferring portions of the Software Product (including System V
source code, derivative works and methods based thereon),
including DYNIX/ptx source code, documentation and methods for
NUMA, RCU and SMP technologies, to Linus Torvalds for open
distribution to the general public under a software license that
destroys the proprietary and confidential nature of the Software
Products.
|
153. IBM has breached Sequent’s obligations under §7.10
of the Sequent Software Agreement by, inter alia,
transferring portions of the Software Product (including System V
source code, modifications,
derivative works and methods based thereon), including DYNIX/ptx
source code, documentation and methods for NUMA, RCU and SMP
technologies, to the OSDL and/or
Linus Torvalds for open distribution to the general public under a
software license that destroys the proprietary and confidential
nature of the Software Products.
|
153. Denies the averments of paragraph 153.
|
143. Sequent agreed under §7.06(a) of the Sequent Software
Agreement, to the following restrictions on confidentiality
of the Software Product, including DYNIX/ptx as a
derivative work of UNIX System V:
|
154. Sequent agreed under §7.06(a) of the Sequent Software
Agreement, to the following restrictions on confidentiality
of the Software Product, including DYNIX/ptx as a
derivative work of UNIX System V:
|
154. Denies the averments of paragraph 154, except refers to
the referenced document for its contents.
|
Licensee agrees that it shall hold all parts of the Software
Products subject to this Agreement in confidence for
AT&T. Licensee further agrees that it shall not make any
disclosure of any or all of such Software Products
(including methods or concepts utilized therein) to anyone, except
to employees of Licensee to whom such disclosure is necessary to
the use for which rights are granted hereunder. Licensee shall
appropriately notify each employee to whom any such disclosure is
made that such disclosure is made in confidence and shall be kept
in confidence by such employee.
|
Licensee agrees that it shall hold all parts of the Software
Products subject to this Agreement in confidence for
AT&T. Licensee further agrees that it shall not make any
disclosure of any or all of such Software Products
(including methods or concepts utilized therein) to anyone, except
to employees of Licensee to whom such disclosure is necessary to
the use for which rights are granted hereunder. Licensee shall
appropriately notify each employee to whom any such disclosure is
made that such disclosure is made in confidence and shall be kept
in confidence by such employee.
|
144. IBM has breached Sequent’s obligation of confidentiality
by contributing portions of the Software Product (including System
V source code, derivative works and methods based thereon) to open
source development of Linux and by using UNIX development methods
in making modifications to Linux 2.4.x and 2.5.x,
which are in material part, unauthorized derivative works of the
Software Product, including but not limited to DYNIX/ptx-based
NUMA technology, source code and methods, RCU source code and
methods, and SMP source code and methods.
|
155. IBM has breached Sequent’s obligation of confidentiality
by contributing portions of the Software Product (including System
V source code, derivative works, modifications,
and methods based thereon) to open source development of Linux and
by using UNIX development methods in making modifications to Linux
2.4.x kernel and above,
which are in material part, unauthorized derivative works of the
Software Product, including but not limited to DYNIX/ptx-based
NUMA technology, source code and methods, RCU source code and
methods, and SMP source code and methods.
|
155. Denies the averments of paragraph 155.
|
145. Export of UNIX technology is controlled by the United
States government. Thus, SCO, Sequent, IBM and all other UNIX
vendors are subject to strict export control regulations with
respect to any UNIX-based customer distribution. To this end,
Sequent agreed in §4.01 of the Software Agreement to
restrictions on export of the Software Product
(including System V source code, derivative works and methods
based thereon), as follows:
|
156. Export of UNIX technology is controlled by the United
States government. Thus, SCO, Sequent, IBM and all other UNIX
vendors are subject to strict export control regulations with
respect to any UNIX-based customer distribution. To this end,
Sequent agreed in §4.01 of the Software Agreement to
restrictions on export of the Software Product
(including System V source code, derivative works,
documentation related thereto and methods based thereon),
as follows:
|
156. Denies the averments of paragraph 156, except refers to
the referenced document for its contents, states that the
averments purport to characterize the laws of the United States
and refers to those laws for their contents.
|
Licensee agrees that it will not, without the prior written
consent of AT&T, export, directly or indirectly,
Software Products covered by this Agreement to any country outside
of the United States.
|
Licensee agrees that it will not, without the prior written
consent of AT&T, export, directly or indirectly,
Software Products covered by this Agreement to any country outside
of the United States.
|
This provision was later modified to
allow export rights to several countries outside the United
States. However, no permission has ever been granted by SCO
or its predecessors to Sequent or IBM
to allow either company to directly
or indirectly make available all or portions of the Software
Product to countries outside the United States that are subject to
strict technology export control by the United States government:
viz., Cuba, Iran, Syria, North
Korea and Libya. IBM is ignoring and attempting to circumvent the
export control restrictions that apply to UNIX as it accelerates
development of Linux for enterprise use.
|
No permission has ever been
granted by SCO or its predecessors to Sequent to allow it
to directly or indirectly make available all or portions of the
Software Product to countries outside the United States that are
subject to strict technology export control by the United States
government: viz, Cuba, Iran, Syria, North Korea and Libya.
IBM is ignoring and attempting to circumvent the export control
restrictions that apply to UNIX as it accelerates development of
Linux for enterprise use.
|
146. Thus, IBM has breached §4.01 of the Sequent Software
Agreement by, inter alia, making extensive, advanced
multiprocessor scaling functions of the Software Product,
including NUMA technology, RCU technology, SMP technology and
other derivative works and methods based thereon, available for
free distribution to anyone in the world with a computer. As it
relates to Linux 2.4.x and 2.5.x
releases, IBM is indirectly making the Software Product and
operating system modifications, particularly NUMA technology, RCU
technology and SMP technology, available to countries and
organizations in those countries for scaling single processor
computers into multi-processor supercomputers that can be used for
encryption, scientific research and weapons research.
|
157. Thus, IBM has breached §4.01 of the Sequent Software
Agreement by, inter alia, making extensive, advanced
multiprocessor scaling functions of the Software Product,
including NUMA technology, RCU technology, SMP technology and
other derivative works and methods based thereon, available for
free distribution to anyone in the world with a computer. As it
relates to Linux 2.4.x and above
releases, IBM is indirectly making the Software Product and
operating system modifications, particularly NUMA technology, RCU
technology and SMP technology, available to countries and
organizations in those countries for scaling single processor
computers into multi-processor supercomputers that can be used for
encryption, scientific research and weapons research.
|
157. Denies the averments of paragraph 157.
|
|
158. SCO has the self-executing,
contractual right to terminate IBM's right to use and distribute
the Software Product, including modifications, derivative works
and methods based thereon, if IBM fails to fultill one or more of
its obligations under the Software Agreement. This authority is
contractually granted under the following provisions of the
Sequent Agreements:
|
158. Denies the averments of paragraph 158, except refers to
the referenced document for its contents.
|
|
If Licensee fails to fulfill one
or more of its obligations under this Agreement, AT&T may,
upon its election and in addition to any other remedies that it
may have, at any time terminate all the rights granted by it
hereunder by not less than two (2) months' written notice to
Licensee specifying any such breach, unless within the period of
such notice all breaches specified therein shall have been
remedied; upon such termination Licensee shall immediately
discontinue use of and return or destroy all copies of Software
Products subject to this Agreement. [Software Agreement, Section
6.03]
|
|
159. Consistent with these rights,
plaintiff delivered a notice of termination to Sequent (the
"Dynix/ptx Termination Notice") for IBM's breaches of
the Software (and Sublicensing) Agreement.
|
159. Denies the averments of paragraph 159, except refers to
the referenced document for its contents.
|
|
160. Following delivery of the Dynix
Termination Notice, IBM did not respond during the two months
provided to cure.
|
160. Denies the averments of paragraph 160.
|
|
161. IBM has disregarded SCO's rights
under the Sequent Agreements by failing to undertake any efforts
to cure its numerous and flagrant violations thereunder. As a
result, effective July 30, 2003, the Sequent Agreements were
terminated and IBM has no further rights thereunder.
|
161. Denies the averments of paragraph 161.
|
|
162. IBM nonetheless continues to operate
under the Sequent Agreements, and use the Software Products and
Source Code thereunder as though its rights under the Agreements
have not been terminated.
|
162. Denies the averments of paragraph 162, except refers to
the referenced documents for their contents, and admits that IBM
continues to lawfully use certain UNIX software products and
source code.
|
|
163. IBM no longer has any right to use
the UNIX Software Code or make modifications or derivative works
thereunder. In fact, IBM is contractually obligated to
"immediately discontinue use of and return or destroy all
copies of Software Products subject to this Agreement."
|
163. Denies the averments of paragraph 163.
|
|
164. As a result of IBM's breaches before
termination, SCO has been damaaged in the marketplace for
violations by IBM in an amount to be proven at trial, but not less
than $1 billion.
|
164. Denies the averments of paragraph 164.
|
|
165. In addition, and to the extent that
IBM continues to completely repudiate its obligations under the
Sequent Agreements regarding the Software Product, plaintiff will
sustain substantial continuing and ongoing damages. These damages
include the full amount IBM receives as a result of its ongoing
sales of Dynix/ptx, including software, services and hardware.
|
165. Denies the averments of paragraph 165.
|
|
166. Moreover, if IBM does not return or
destroy all source and binary copies of the Software Products
received pursuant to the Sequent Agreements and/or continues to
contribute some or all of these Protected Materials to open
source, SCO will be irreparably harmed. As a result, SCO is
entitled to a permanent injunction requiring IBM to return or
destroy all source code and binary copies of the Software Products
and/or prohibiting IBM from further contribution of the protected
Software Products into open source.
|
166. Denies the averments of paragraph 166.
|
|
FOURTH CAUSE OF ACTION
|
FOURTH CASE OF ACTION
|
|
(Breach of Sequent
Sublicensing Agreement)
|
|
|
167. Plaintiff incorporates and
re-alleges paragraphs No. 1-166, above.
|
167. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 166 as if fully set forth
herein.
|
|
168. As set forth above, SCO is the
successor to AT&T under that certain Sequent Sublicensing
Agreement originally executed by and between AT&T and Sequent
designated as SUB-000321A. The Sequent Sublicensing Agreement
grants the right to distribute object-based code of
UNIX System V and modifications thereto and derivative works based
thereon.
|
168. Denies the averments of paragraph 168, except states that
it is without information sufficient to form a belief as to the
truth of the first sentence of paragraph 168, and refers to the
referenced documents for their contents.
|
|
169. SCO has terminated IBM's right to
use and distribute under the Sequent Agreements the Software
Product, including derivative works and methods based thereon as
of the Dynix/ptx Termination Date.
|
169. Denies the averments of paragraph 169.
|
|
170. From and after the Dynix/ptx
Termination Date, any and all distributions of Dynix/ptx by IBM,
or any part or sub-program or sub-routine thereof, is in violation
of the Sequent Sublicensing Agreement.
|
170. Denies the averments of paragraph 170.
|
|
171. IBM has disregarded and continues to
completely disregard and repudiate Sequent's obligations under the
Sequent Sublicensing Agreement, to plaintiff's substantial,
continuing and ongoing damage. these damages include the full
amount IBM receives as a result of its ongoing sales of Dynix/ptx,
including software, services and hardware.
|
171. Denies the averments of paragraph 171.
|
|
172. Moreover, if IBM does not return or
destroy all source and binary copies of the Software Products
and/or continues to contribute some or all of these protected
materials to open source, SCO will be irreparabaly harmed. As a
result, SCO is entitled to a permanent injunction requiring IBM to
return or destroy all source code and binary copies of the
Software Products and/or prohibiting IBM from further
contributions of the protected Software Products into open source.
|
172. Denies the averments of paragraph 172.
|
|
FIFTH CAUSE OF ACTION
|
FIFTH CAUSE OF ACTION
|
|
(Copyright Infringement)
|
|
|
173. Plaintiff incorporates and
re-alleges paragraphs No. 1-172, above.
|
173. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 172 as if fully set forth
herein.
|
|
174. As set forth above, SCO is the
successor in interest to the IBM Related Agreements and the
Sequent Agreements.
|
174. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 174.
|
|
175. Despite termination of such
Agreements, IBM has continued to reproduce, prepare derivative
works of, and distribute UNIX software, source code, object code,
programming tools, and documentation related to UNIX operating
system technology, and has induced others to do the same.
|
175. Denies the averments of paragraph 175, except refers to
the referenced documents for their contents, and admits that IBM
continues to lawfully use AIX and Dynix, including source code and
related materials.
|
|
176. SCO is the owner of copyright rights
to UNIX software, source code, object code, programming tools,
documentation related to UNIX operating system technology, and
derivative works thereof. These materials are covered by numerous
copyright registrations issued by the United States Copyright
Office (the "Copyrighted Programs"). These registrations
have been obtained by SCO and its predecessors in interest and are
owned by SCO. For example, included among such registrations
(attached as Exhibits H to U) are the following:
|
176. Denies the averments of paragraph 176, except refers to
the referenced documents for their contents, and admits that SCO
purports to own the referenced copyrights.
|
|
Table E [REMOVED]
|
|
|
|
|
177. SCO and its predecessors in interest
created the Copyrighted Programs as original works of authorship,
and, as such, the Copyrighted Programs constitute copyrightable
subject matter under the copyright laws of the United States. The
Copyrighted Programs were automatically subject to copyright
protection under 17 U.S.C. Section 102(a) when such programs were
fixed in a tangible medium of expression. Copyright protection
under 17 U.S.C. Section 106 extends to derivative works which are
defined in 17 U.S.C. Section 101 to include works based on the
original work or any other form in which the original work may be
recast, transformed, modified or adapted.
|
177. Denies the averments of paragraph 177, except refers to
the referenced documents for their contents, and admits that SCO
purports to own the referenced copyrights.
|
|
178. Pursuant to U.S.C. Section 410(c),
the certificates of copyright registrations for each Copyrighted
Program constitute prima facie evidence of the validity of the
copyrights and of the facts stated in the certificates. SCO and
its predecessors' registered copyrights in the Copyrighted
Programs are entitled to such statutory presumptions.
|
178. Denies the averments of paragraph 178, except admits that
SCO purports to have registered the referenced copyrights.
|
|
179. IBM's breaches of the IBM Related
Agreements and the Sequent Agreements and its post-termination
actions have infringed, have induced infringement of, and have
contributed to the infringement of, copyright registrations of SCO
and its predecessors. Such actions have been willful and have been
done with knowledge of the copyright rights of SCO.
|
179. Denies the averments of paragraph 179.
|
|
180. SCO has been damaged by IBM's
conduct and has no adequate remedy at law. IBM's conduct has
caused, and, if not enjoined, will continue to cause, irreparable
harm to SCO. As a result of IBM's wrongful conduct, SCO is
entitled to injunctive relief pursuant to 17 U.S.C. Section 502
and SCO's actual damages and IBM's profits as a result of the
infringing acts pursuant to 17 U.S.C. Section 504(a), statutory
damages to the extent applicable pursuant to 17 U.S.C. Section
504(b) and enhanced damages, together with attorneys' fees and
costs pursuant to 17 U.S.C. Section 505.
|
180. Denies the averments of paragraph 180.
|
FOURTH CAUSE OF ACTION
|
SIXTH CAUSE OF ACTION
|
SIXTH CAUSE OF ACTION
|
(Unfair Competition)
|
(Unfair Competition)
|
|
147. Plaintiff incorporates and re-alleges paragraphs No.
1-146, above.
|
181. Plaintiff incorporates and re-alleges paragraphs No.
1-180, above.
|
181. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 180 as if fully set forth
herein.
|
148. Plaintiff and its predecessors have built the UNIX System
V Technology, the Unix Software Code, SCO OpenServer, UnixWare and
their derivatives through very substantial efforts over a time
span in excess of 20 years and expenditure of money in excess of
$1 billion.
|
182. Plaintiff and its predecessors have built the UNIX System
V Technology, the Unix Software Code, SCO OpenServer, UnixWare and
their derivatives through very substantial efforts over a time
span in excess of 20 years and expenditure of money in excess of
$1 billion.
|
182. States that it is without information sufficient to form a
belief as to the truth of the averments of page 182.
|
149. IBM has engaged in a course of conduct that is
intentionally and foreseeably calculated to undermine and/or
destroy the economic value of UNIX anywhere and everywhere in the
world, and to undermine and/or destroy plaintiff’s rights to
fully exploit and benefit from its ownership rights in and to UNIX
System V Technology, the Unix Software Code, SCO OpenServer,
UnixWare and their derivatives, and thereby seize the value of
UNIX System V Technology, the Unix Software Code, SCO OpenServer,
UnixWare and their derivatives directly for its own benefit and
indirectly for the benefit of its Linux distribution partners.
|
183. IBM has engaged in a course of conduct that is
intentionally and foreseeably calculated to undermine and/or
destroy the economic value of UNIX anywhere and everywhere in the
world, and to undermine and/or destroy plaintiff’s rights to
fully exploit and benefit from its ownership rights in and to UNIX
System V Technology, the Unix Software Code, SCO OpenServer,
UnixWare and their derivatives, and thereby seize the value of
UNIX System V Technology, the Unix Software Code, SCO OpenServer,
UnixWare and their derivatives directly for its own benefit and
indirectly for the benefit of its Linux distribution partners.
|
183. Denies the averments of paragraph 183.
|
150. In furtherance of its scheme of unfair competition, IBM
has engaged in the following conduct:
|
184. In furtherance of its scheme of unfair competition, IBM
has engaged in the following conduct:
|
184. Denies the averments of paragraph 184.
|
a) Misappropriation of source code, methods, trade secrets and
confidential information of plaintiff;
|
a) Misappropriation of source code, methods, trade secrets and
confidential information of plaintiff;
|
b) Breach of contract;
|
b) Breach of contract;
|
c)Violation of confidentiality provisions running to the
benefit of plaintiff;
|
c)Violation of confidentiality provisions running to the
benefit of plaintiff;
|
d) Inducing and encouraging others to violate confidentiality
provisions and to misappropriate trade
secrets and confidential information of plaintiff;
|
d) Inducing and encouraging others to violate confidentiality
provisions;
|
e)Contribution of protected source code and methods for
incorporation into one or more Linux software releases, intended
for transfer of ownership to the general public;
|
e)Contribution of protected source code and methods for
incorporation into one or more Linux software releases, intended
for transfer of ownership to the general public;
|
f) Use of deceptive means and practices in dealing with
plaintiff with respect to its software development efforts; and
|
f) Use of deceptive means and practices in dealing with
plaintiff with respect to its software development efforts; and
|
g) Other methods of unlawful and/or unfair competition.
|
g) Other methods of unlawful and/or unfair competition.
|
151. IBM’s unfair competition has directly and/or proximately
caused significant foreseeable and consequential harm to plaintiff
in the following particulars:
|
185. IBM’s unfair competition has directly and/or proximately
caused significant foreseeable and consequential harm to plaintiff
in the following particulars:
|
185. Denies the averments of paragraph 185.
|
a)Plaintiff’s revenue stream from UNIX licenses for
Intel-based processing platforms has decreased substantially;
|
a)Plaintiff’s revenue stream from UNIX licenses for
Intel-based processing platforms has decreased substantially;
|
b) As Intel-based processors have now become the processing
platform of choice for a rapidly-increasing customer base of
enterprise software users, plaintiff has been deprived of the
opportunity to fairly exploit its market-leading position for UNIX
on Intel-based processors, which revenue opportunity would have
been very substantial on a recurring, annual basis but for IBM’s
unfairly competitive practices;
|
b) As Intel-based processors have now become the processing
platform of choice for a rapidly-increasing customer base of
enterprise software users, plaintiff has been deprived of the
opportunity to fairly exploit its market-leading position for UNIX
on Intel-based processors, which revenue opportunity would have
been very substantial on a recurring, annual basis but for IBM’s
unfairly competitive practices;
|
c)Plaintiff stands at imminent risk of being deprived of its
entire stream of all UNIX licensing revenue in the foreseeably
near future;
|
c)Plaintiff stands at imminent risk of being deprived of its
entire stream of all UNIX licensing revenue in the foreseeably
near future;
|
d) Plaintiff has been deprived of the effective ability to
market and sell its new UNIX-related improvements, including a
32-bit version of UNIX for Intel processors developed prior to
Project Monterey, a 64-bit version of UNIX
for Intel processors based on Project Monterey, and its new
web-based UNIX-related products, including UNIX System VI;
|
d) Plaintiff has been deprived of the effective ability to
market and sell its new UNIX-related improvements, including a
32-bit version of UNIX for Intel processors developed prior to
Project Monterey, and its new web-based UNIX-related products,
including UNIX System V Release 6;
|
e)Plaintiff has been deprived of the effective revenue
licensing opportunity to transfer its existing UNIX System V
customer base to UNIX System VI; and
|
e)Plaintiff has been deprived of the effective revenue
licensing opportunity to transfer its existing UNIX System V
Release 4 and Release 5 customer base to UNIX System V
Release 6; and
|
f) Plaintiff has been deprived of the effective ability to
otherwise fully and fairly exploit UNIX’s market-leading
position in enterprise software market, which deprivation is
highly significant given the inability of Microsoft Windows NT
to properly support large-scale enterprise applications.
|
f) Plaintiff has been deprived of the effective ability to
otherwise fully and fairly exploit UNIX’s market-leading
position in enterprise software market, which deprivation is
highly significant given the inability of Microsoft Windows to
properly support large-scale enterprise applications.
|
152. As a result of IBM’s unfair competition and the
marketplace injury sustained by plaintiff as set forth above,
plaintiff has suffered damages in an amount to be proven at trial,
but no less than $1 billion, together with additional damages
through and after the time of trial foreseeably and
consequentially resulting from IBM’s unfair competition in an
amount to be proven at the time of trial.
|
186. As a result of IBM’s unfair competition and the
marketplace injury sustained by plaintiff as set forth above,
plaintiff has suffered damages in an amount to be proven at trial,
but no less than $1 billion, together with additional damages
through and after the time of trial foreseeably and
consequentially resulting from IBM’s unfair competition in an
amount to be proven at the time of trial.
|
186. Denies the averments of paragraph 186.
|
153. IBM’s unfairly competitive conduct was also
intentionally and maliciously designed to destroy plaintiff’s
business livelihood and all opportunities of plaintiff to derive
value from its UNIX-based assets in the marketplace. As such,
IBM’s wrongful acts and course of conduct has created a
profoundly adverse effect on UNIX business worldwide. As such,
this Court should impose an award of punitive damages against IBM
in an amount to be proven and supported at trial.
|
188[-1]. IBM’s unfairly competitive conduct was also
intentionally and maliciously designed to destroy plaintiff’s
business livelihood and all opportunities of plaintiff to derive
value from its UNIX-based assets in the marketplace. As such,
IBM’s wrongful acts and course of conduct has created a
profoundly adverse effect on UNIX business worldwide. As such,
this Court should impose an award of punitive damages against IBM
in an amount to be proven and supported at trial.
|
188[-1]. Denies the averments of paragraph 188 (SCO's first).
|
FIFTH CAUSE OF ACTION
|
SEVENTH CAUSE OF ACTION
|
SEVENTH CAUSE OF ACTION
|
(Interference with Contract)
|
(Interference with Contract)
|
|
154. Plaintiff incorporates and re-alleges by reference
paragraphs 1-153, above.
|
187. Plaintiff incorporates and re-alleges by reference
paragraphs 1-186, above.
|
187. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 188 (SCO's first) as if fully
set forth herein.
|
155. SCO has contracts with customers around the world for
licensing of SCO OpenServer and UnixWare.
|
188[-2]. SCO has contracts with customers around the world for
licensing of SCO OpenServer and UnixWare.
|
188[-2]. States that it is without information sufficient to
form a belief as to the truth of the averments of paragraph 188
(SCO's second).
|
156. IBM knew and should have known of these corporate software
licensing agreements between SCO and its customers, including the
fact that such agreements contain confidentiality provisions and
provisions limiting use of the licensed object-based code.
|
189. IBM knew and should have known of these corporate software
licensing agreements between SCO and its customers, including the
fact that such agreements contain confidentiality provisions and
provisions limiting use of the licensed object-based code.
|
189. Denies the averments of paragraph 189.
|
157. IBM, directly and through its Linux distribution partners,
has intentionally and without justification induced SCO’s
customers and licensees to breach their corporate licensing
agreements, including but not limited to, inducing the customers
to reverse engineer, decompile, translate, create derivative
works, modify or otherwise use the UNIX software in ways in
violation of the license agreements. These customers include
Sherwin Williams, Papa John’s Pizza, and
Auto Zone, among others.
|
190. IBM, directly and through its Linux distribution partners,
has intentionally and without justification induced SCO’s
customers and licensees to breach their corporate licensing
agreements, including but not limited to, inducing the customers
to reverse engineer, decompile, translate, create derivative
works, modify or otherwise use the UNIX software in ways in
violation of the license agreements. These customers include
Sherwin Williams, Auto Zone, among others.
|
190. Denies the averments of paragraph 190.
|
158. IBM’s tortious interference has directly and/or
proximately caused significant foreseeable damages to SCO,
including a substantial loss of revenues.
|
191. IBM’s tortious interference has directly and/or
proximately caused significant foreseeable damages to SCO,
including a substantial loss of revenues.
|
191. Denies the averments of paragraph 191.
|
159. IBM’s tortious conduct was also intentionally and
maliciously designed to destroy plaintiff’s business livelihood
and all opportunities of plaintiff to derive value from its
UNIX-based assets in the marketplace. As such, this Court should
impose an award of punitive damages against IBM in an amount to be
proven and supported at trial.
|
192. IBM’s tortious conduct was also intentionally and
maliciously designed to destroy plaintiff’s business livelihood
and all opportunities of plaintiff to derive value from its
UNIX-based assets in the marketplace. As such, this Court should
impose an award of punitive damages against IBM in an amount to be
proven and supported at trial.
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192. Denies the averments of paragraph 192.
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SIXTH CAUSE OF ACTION
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(Misappropriation of Trade
Secrets—Utah Code Ann. §13-24-1 et seq.)
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160. Plaintiff incorporates and
re-alleges paragraphs No. 1-159, above.
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161. Plaintiff is the owner of unique
know how, concepts, ideas, methodologies, standards,
specifications, programming, techniques, UNIX Software Code,
object code, architecture, design and schematics that allow UNIX
to operate with unmatched extensibility, scalability, reliability
and security (hereinafter defined as “SCO’s Trade Secrets”).
SCO’s Trade Secrets provide SCO with an advantage over its
competitors.
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162. SCO’s Trade Secrets are embodied
within SCO’s proprietary SCO OpenServer and its related shared
libraries and SCO’s UnixWare and its related shared libraries.
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163. SCO and its predecessors in interest
have expended over one billion dollars to develop SCO’s Trade
Secrets.
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164. IBM, through improper means acquired
and misappropriated SCO’s Trade Secrets for its own use and
benefit, for use in competition with SCO and in an effort to
destroy SCO.
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165. At the time that IBM acquired access
to SCO’s Trade Secrets, IBM knew that it had a duty to maintain
the secrecy of SCO’s Trade Secrets or limit their use.
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166. SCO’s Trade Secrets derive
independent economic value, are not generally known to third
persons, are not readily ascertainable by proper means by other
persons who can obtain economic value from their disclosure and
use, and are subject to reasonable efforts by SCO and its
predecessors to maintain secrecy.
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167. The acts and conduct of IBM in
misappropriating and encouraging, inducing and causing others to
commit material misappropriation of SCO’s Trade Secrets are the
direct and proximate cause of a near-complete devaluation and
destruction of the market value of SCO OpenServer and SCO UnixWare
that would not have otherwise occurred but for the conduct of IBM.
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168. Pursuant to Utah Code Ann.
§13-24-4, plaintiff is entitled to an award of damages
against IBM in the following amounts:
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a)Actual damages as a result of the theft
of trade secrets; together with
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b) Profits from IBM’s Linux-related
business on account of its misappropriation through the time of
trial; together with
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c)Additional foreseeable profits for
future years from IBM’s Linux-related business on account of its
misappropriation in an amount to be proven at the time of trial.
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169. Because IBM’s misappropriation was
willful, malicious, and in reckless disregard of plaintiff’s
rights, SCO is entitled to an award of exemplary damages against
IBM in an amount equal to two times the amount of damages,
pursuant to Utah Code Ann. §13-24-4(2).
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170. Plaintiff is also entitled to an
award of attorneys’ fees and costs in an amount to be proven at
the time of trial pursuant to Utah Code Ann. §13-24-5.
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EIGHTH CAUSE OF ACTION
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EIGHTH CAUSE OF ACTION
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(Interference with
Contract)
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193. Plaintiff incorporates and
re-alleges paragraphs No. 1-192.[sic] above.
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193. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 192 as if fully set forth
herein.
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194. Through an Asset Purchase Agreement
dated September 19, 1995, as amended ("Asset Purchase
Agreement," attached hereto with amendments as Exhibit "V")
wherein Novell received 6.1 million shares of SCO common stock,
valued at the time at over $100 million in consideration, SCO,
through its predecessor in interest, acquired from Novell all
right, title and interest in and to the UNIX and UnixWare
business, operating system, source code, and all copyrights
related thereto, as well as all claims arising after the closing
date against any parties relating to any right, property, or asset
included in the business.
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194. Denies the averments of paragraph 194, except refers to
the referenced document for its contents.
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195. Schedule 1.1(a) to the Asset
Purchase Agreement provides that SCO, through its predecessor in
interest, acquired from Novell:
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195. Denies the averments of paragraph 195, except refers to
the referenced documents for its contents.
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I. All rights and ownership of
UNIX and UnixWare, including but not limited to all versions of
UNIX and UnixWare and copies of UNIX and UnixWare (including
revisions and updates in process), and all technical, design,
development, installation, operation and maintenance information
concerning UNIX and UnixWare, including source code, source
documentation, source listings and annotations, appropriate
engineering notebooks, test data and results, as well as all
reference manuals and support materials normally distributed by
[Novell] to end-users and potential end-users in connection with
the distribution of UNIX and UnixWare . . .
II. All of
[Novell's] claims arising after the Closing Date against any
parties relating to any right, property or asset included in the
Business.
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196. In Amendment No. 2 to the Asset
Purchase Agreement, Novell and SCO made clear that SCO owned all
"copyrights and trademarks owned by Novell as of the date of
the [Asset Purchase Agreement] required for SCO to exercise its
rights with respect to the acquisition of UNIX and UnixWare
technologies," and that Novell would not longer be liable
should any third party bring a claim against SCO "pertaining
to said copyrights and trademarks." (Exh. V, Amendment No. 2
to the Asset Purchase Agreement dated October 16, 1996 at I).
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196. Denies the averments of paragraph 196, except refers to
the referenced document for its contents.
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197. IBM is well aware of the terms of
the Asset Purchase Agreement and the obligations Novell owes to
SCO pursuant to the Asset Purchase Agreement. Indeed, IBM
expressly acknowledged the existence of the Asset Purchase
Agreement when it executed Amendment X, attached hereto as Exhibit
E.
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197. Denies the averments of paragraph 197, except refers to
the referenced documents for their contents.
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198. After suit against IBM was filed,
and more than seven years after the Asset Purchase Agreement was
executed by Novell, IBM intentionally and improperly interfered
with the Asset Purchase Agreement.
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198. Denies the averments of paragraph 198.
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199. Specifically, commencing on or about
May 2003, Novell began falsely claiming that Novell, not SCO,
owned the copyrights relating to UNIX System V. On information and
belief, IBM had induced or otherwise caused Novell to take the
position that Novell owned the copyrights -- a position that is
flatly contradicted by the Asset Purchase Agreement. Since that
time, Novell has improperly registered the same copyrights that it
sold to SCO and that SCO had previously registered.
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199. Denies the averments of paragraph 199, except admits that
Novell purports to have registered copyrights relating to Unix
System V software.
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200. In addition, IBM intentionally and
improperly interfered with the Asset Purchase Agreement by
inducing or otherwise causing Novell to violate the Asset Purchase
Agreement by claiming Novell could waive and was waiving breaches
of license agreements by various licensees, including IBM.
Specifically, with the IBM Termination Date looming only days
away, Novell wrote to SCO claiming that either SCO must waive its
right to terminate IBM's license based upon IBM's numerous
breaches thereof or else Novell would purportedly waive SCO's
right to terminate the license and otherwise excuse IBM's numerous
breaches of the license agreements.
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200. Denies the averments of paragraph 200, except refers to
the referenced documents for their contents, and admits that IBM
believes Novell has the right to waive and has properly waived the
purported breaches by IBM of the software adn sublicensing
agreements.
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201. Again, Novell's position, improperly
encouraged and induced by IBM, is flatly contrary to the terms of
the Asset Purchase Agreement.
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201. Denies the averments of paragraph 201, except refers to
the referenced document for its contents.
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202. Under the Asset Purchase Agreement,
Novell merely retained an interest in receiving future royalties
from System V licensees. SCO, conversely, obtained "all of
Sellers' right, title and interest in and to the assets and
properties of the seller relating to the Business (collectively
the "Assets") identified on Schedule 1.1(a) hereto."
The Assets identified on Schedule 1.1(a) include "all rights
and ownership of Unix and UnixWare," including source code,
software and sublicensing agreements and "all claims against
any parties relating to any right or asset included in the
business."
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202. Denies the averments of paragraph 202, excep t refers to
the referenced document for its contents.
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203. Thus, SCO acquired all of Novell's
right, title and interest: (a) to the AT&T software and
sublicensing agreements, including the IBM Related Agreements and
Sequent Agreements, and (b) to all claims against any parties.
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203. Denies the averments of paragraph 203, except refers to
the referenced documents for their contents.
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204. As a beneficiary of the royalties,
Novell can modify or waive the royalty amounts due under a license
agreement. However, at IBM's improper urging and inducement,
Novell now claims that it can amend, modify or waive any and all
terms of the software and sublicensing agreements. Thus, according
to Novell's position prompted by IBM, if a licensing such as IBM
is egregiously breaching its agreement and thereby destroying the
value of System V, Novell claims that it can waive any such breach
of the agreement. Such position, of course, is unfounded and
preposterous; otherwise, the over $100 million dollars paid for
the software and sublicensing agreements was for naught if Novell
retained all rights to waive any breach by a
licensee. Of course, Novell could not sell all right, title and
interest to the AT&T software and sublicensing agreements and
the rights to all claims against third parties, only to have
Novell also claim it can wiave those rights. While Novell may be
able to modify or waive the royalties to which Novell was
entitled, Novell cannot waive rights it clearly unequivocally sold
to SCO (i.e. the software and sublicensing agreements, including
all the restrictive covenants, and all claims against any parties
relating to those agreements.) Novell nonetheless has attempted to
do so at IBM's improper direction.
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204. Denies the averments of paragraph 204, except admits that
IBM believes Novell has the right to waive and has properly waived
the purported breaches by IBM of the software and sublicensing
agreements.
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205. Since improperly inducing Novell to
breach the Asset Purchase Agreement by falsely claiming copyright
ownership of System V (and subsequently registering those
copyrights after SCO had registered them) and since improperly
inducing Novell to attempt to breach the Asset Purchase Agreement
by purporting to waive SCO's rights under the Asset Purchase
Agreement, IBM has contributed $50 million dollars to Novell so
that Novell can complete the purchase of SuSE, the largest Linux
distributor in Europe.
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205. Denies the averments of paragraph 205.
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206. IBM's tortious interference has
directly and/or proximately caused significant forseeable damages
to SCO.
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206. Denies the averments of paragraph 206.
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207. IBM's tortious conduct was also
intentionally and maliciously designed to destroy plaintiff's
business livelihood and all opportunities of plaintiff to derive
value from its Unix based assets in the marketplace. As such, this
Court should impose and award punitive damages against IBM in an
amount to be proved and supported at trial.
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207. Denies the averments of paragraph 207.
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NINTH CAUSE OF ACTION
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NINTH CAUSE OF ACTION
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(Interference with
Business Relationships)
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208. Plaintiff incorporates and
re-alleges by reference paragraphs 1-207, above.
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208. Repeats and realleges its answers to the averments
contained in paragraphs 1 through 207 as if fully set forth
herein.
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209. SCO had existing or potential
economic relationships with a variety of companies in the computer
industry, including but not limited to Hewlett Packard.
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209. States that it is without information sufficient to form a
belief as to the truth of the averments of paragraph 209.
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210. IBM has intentionally interfered
with plaintiff's existing or potential economic relations. For
example, at Linux World in January, 2003 IBM representatives
contacted various companies with whom SCO had existing or
potential economic relations. These IBM representatives said that
IBM was discontinuing doing business with SCO and that these other
companies, some of whom are business partners with IBM, also
should discontinue doing business with SCO.
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210. Denies the averments of paragraph 210, except admits that
IBM representatives attended Linux World in January 2003, and had
contacts wiht various companies that also attended Linux World,
including business partners of IBM.
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211. IBM, as the world's largest
information technology company, as well as the world's largest
business and technology services provider ($36 billion), and the
world's largest IT financier ($35 billion in assets), has
considerable clout with these companies that it told to stop doing
business with SCO.
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211. Denies the averments of paragraph 211, except admits that
IBM is one of the world's largest information technology companies
and is, we believe, well respected in the industry.
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212. IBM's intentional interference was
for an improper purpose and/or by improper means.
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212. Denies the averments of paragraph 212.
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158. IBM’s tortious interference
has directly and/or proximately caused significant foreseeable
damages to SCO, including a substantial loss
of revenues.
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213. IBM's intentional
interference has directly and/or proximately caused significant
forseeable damages to SCO.
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213. Denies the averments of paragraph 213.
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159. IBM’s tortious conduct was also intentionally and
maliciously designed to destroy plaintiff’s business livelihood
and all opportunities of plaintiff to derive value from its
UNIX-based assets in the marketplace. As such, this Court
should impose an award of punitive damages against IBM in an
amount to be proven and supported at
trial.
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214. IBM's tortious conduct was also intentionally and
maliciously designed to destroy plaintiff's business livelihood.
As such, this Court should impose an award of punitive damages
against IBM in an amount to be proved and
supported at trial.
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214. Denies the averments of paragraph 214.
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