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Xinuous—owners of what used to be SCO—file suit against Red Hat and IBM

The new lawsuit from Xinuos echoes the still-ongoing SCO vs IBM lawsuit in some key aspects, while adding new and heavy-duty anti-trust allegations alongside.
Enlarge / The new lawsuit from Xinuos echoes the nonetheless-ongoing SCO vs IBM lawsuit in some crucial elements, when adding new and heavy-duty anti-trust allegations alongside.

Yesterday, UnixWare/OpenServer vendor Xinuos filed a lawsuit in the US Virgin Islands, alleging theft of intellectual home and monopolistic industry collusion against joint defendants IBM and Red Hat.

If this sounds like a familiar, nicely-worn tale, it really should. Xinuos is the firm which bought the remnants of the SCO Group in 2011. The SCO Group, in turn, is a firm most popular not for its actual merchandise but for its litigation against IBM and Linux. That litigation started in 2003—partially funded by a quite distinct Microsoft, only 5 years right after the leak of the Halloween documents in which Microsoft acknowledged the “extended-term viability” of open supply computer software and discussed techniques to choke it out of the industry.

The substance of the original lawsuit is SCO’s claim that IBM pulled proprietary code out of SCO Unix and inserted it into the Linux kernel. The subsequent 18 years have not been type to SCO, which initially filed for bankruptcy in 2007, then at some point sold off its intellectual home (but not its litigation rights) to Xinuos, then named UnXis, in 2011.

Here’s a speedy timeline:

  • March 2003—SCO Group claims ownership of AT&ampT Unix, that Linux is an unauthorized derivative of AT&ampT Unix, and that IBM violated contractual obligations by distributing Linux
  • May 2003—Novell publicly states that SCO does not personal the AT&ampT Unix intellectual home in query, Novell does
  • January 2004—Novell publicly indemnifies all Linux customers from lawsuits more than AT&ampT Unix intellectual home. SCO responds by suing Novell
  • July 2005—Novell countersues SCO, looking for damages in excess of SCO’s net worth
  • August 2007—US federal Judge Kimball guidelines that Novell is the owner of the UNIX and UnixWare copyrights
  • August 2009—US 10th Circuit Court of Appeals partially reverses Kimball’s judgment, permitting SCO to continue pursuing ownership of Unix copyrights
  • June 2010—Jury returns a unanimous verdict affirming Novell’s ownership of Unix copyrights
  • July 2010—SCO appeals SCO v. Novell once again
  • August 2011—Appeals court upholds the selection for Novell

The astute reader will note that, while SCO v. Novell is ruled on, appealed, affirmed, appealed after far more, and lastly affirmed in 2011, SCO v. IBM is nonetheless ongoing in 2011, when Xinuos (then UnXis) purchases SCO’s intellectual home. That zombie lawsuit is—beggaring all belief—nonetheless operating currently… and now, an incredibly comparable lawsuit joins it from Xinuos, whom you are going to bear in mind owns the remainder of the SCO Group.

The new lawsuit alleges that IBM incorporated unspecified code from the company’s UnixWare and OpenServer code into IBM’s personal AIX operating method. It also alleges that IBM and Red Hat conspired—at some point the lawsuit does not present a timeline—directly to divide the whole Unix-like operating method industry up into big enterprise possibilities for IBM and smaller sized possibilities for Red Hat, locking Xinuos out into the cold:

First, IBM stole Xinuos’ intellectual home and used that stolen home to create and sell a item to compete with Xinuos itself. Second, stolen home in IBM’s hand, IBM and Red Hat illegally agreed to divide the relevant industry and use their increasing industry powers to victimize shoppers, revolutionary competitors, and innovation itself. Third, right after IBM and Red Hat launched their conspiracy, IBM then acquired Red Hat to solidify and make permanent their scheme.

Xinuos expands upon the harm it believes it has felt in the complete lawsuit:

As a outcome of these activities, Xinuos has been excluded from crucial possibilities in the industry. For instance, regardless of Xinuos supplying a FreeBSD-primarily based operating method with substantial industrial worth for enterprise customers, Xinuos was unable to garner as substantially economic assistance or consumer interest in OpenServer ten as it could and really should have due to the industry circumstances. Indeed, the industry is so distorted that Xinuos has determined that more than 70% fewer of its consumers are in a position to license its new operating method than would be readily available in a functioning industry. The foreclosing impact on Xinuos is felt by all competitors as nicely.

Even far more startlingly, it claims that IBM is expressly out to destroy FreeBSD as a entire:

IBM’s tactic with Red Hat has been expressly to destroy FreeBSD, upon which Xinuos’ most current innovations have been primarily based.

And goes on to demand not merely damages, but the reversal of IBM’s acquisition of Red Hat totally:

The merger really should be declared unlawful in violation of at least Section 7 of the Clayton Act, and IBM and Red Hat really should be ordered to divest of every single other and void all linked agreements amongst them.

The “Factual Background” section finishes with this bold declaration, on web page 44 of Xinuos’ 57-web page complaint:

The outcome has created it not possible for Xinuos to compete on fair terms, and has foreclosed shoppers from access to Xinuos’ higher-excellent merchandise. The outcome is also a deeply dysfunctional industry. High-worth merchandise have no signifies for penetration. Nascent rivals have no chance for development. Prices are shooting upwards. Enough is sufficient. IBM and Red Hat have abused their handle more than the Unix/Linux operating method industry for far also extended, and intervention is the only way to repair what they have broken.

It’s worth noting that there is definitely no mention of SUSE Linux Enterprise Server or Ubuntu—either of which could leap to the thoughts of a affordable onlooker considering of “rivals” to Red Hat Enterprise Linux—anywhere in the complaint, and no explanation is offered for the industry development these distributions have skilled.

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