Xinuos, a SCO zombie, rises from the dead
A lawsuit was announced on March 31st (not April 1st, so if this is an April fool's joke they miss timed it!) which features Xinuos suing IBM and RedHat. Here is their entire complaint, lifted from their website:
Xinuos has 15 employees and its revenue is about $2.2M/yr. I'm sure IBM has more than 16 attorneys and pays several of them that much per year.
Wikipedia reports:
In addition, during the SCO fiasco, Pamala "PJ" Jones, a paralegal and creator of GrokLaw, established that SCO's lawsuit was funded by Microsoft as an attempt to sully Linux. GrokLaw and a LARGE group of folks interested in the survival of Linux thoroughly researched every claim made by SCO and every line of code SCO claimed was stolen and furnished unassailable proof that SCO's claims were bogus. SCO's case went down in flames in April of 2011. It was reported by Steven J. Vaughan-Nichols , in his 2011 ZDNet article, that "PJ will soon no longer be publishing new stories".
Reading about SCO in GrokLaw , which was placed in Archive status in 2013, was a regular daily occurrence for me and millions of others. Although PJ was reported as having retired shortly after 2011 , it appears that "`pj" and some others are adding articles occasionally. Personally, I think she won't start GrokLaw up again because this case will probably the shortest in the Zombie's history of cases. I suspect that the IBM lawyers will dump GrokLaw on the judge's bench and point out that Xinuos' OpenServer software has been based on BSD-Linux from the beginning. And, they'll probably give the judge a few past quotes from the Xinuos CEO, which I quoted above in the Wikipedia link.
St. Thomas, U.S. Virgin Islands, March 31, 2021 ? Xinuos, Inc., a software company headquartered in the U.S. Virgin Islands that provides commercial customers with server operating systems, today filed a copyright infringement and antitrust lawsuit against International Business Machines Corp. (?IBM?) and Red Hat, Inc. (?Red Hat?) in the United States District Court of the Virgin Islands, St. Thomas and St. John Division. Xinuos alleges that IBM and Red Hat, using wrongfully copied software code, have engaged in additional, illegal anti-competitive misconduct to corner the billion-dollar market for Unix and Linux server operating systems.
?While this case is about Xinuos and the theft of our intellectual property,? said Sean Snyder, President and CEO of Xinuos. ?It is also about market manipulation that has harmed consumers, competitors, the open-source community, and innovation itself.?
According to the complaint, at their peak, Xinuos? operating systems were the most widely-used operating systems in the Unix/Linux server operating system market. Xinuos? UnixWare 7 and OpenServer 5 and 6 server operating systems were popular because they were stable, reliable, and easy to manage. Xinuos alleges that in or around this time, IBM?s server operating systems were declining in popularity and new entrants to the market, such as Red Hat, were gaining market share and threatening IBM?s server operating system business, its underlying business selling server hardware, as well as related software and services.
Xinuos? complaint alleges that IBM then took unlawful steps to improve its market position and safeguard its business from competition:
?First, IBM stole Xinuos? intellectual property and used that stolen property to build and sell a product to compete with Xinuos itself. Second, stolen property in IBM?s hand, IBM and Red Hat illegally agreed to divide the relevant market and use their growing market powers to victimize consumers, innovative competitors, and innovation itself. Third, after IBM and Red Hat launched their conspiracy, IBM then acquired Red Hat to solidify and make permanent their scheme.?
The complaint further alleges that IBM has been misleading its investors about its rights to use Xinuos? code for more than a decade:
?IBM has made demonstrably and materially misleading statements in securities filings about its ownership interest in the Code. In every annual report filed with the SEC since 2008, IBM has represented that a third-party owns all of the UNIX and UnixWare copyrights, and that this third-party has waived any infringement claim against IBM. These self-serving representations are demonstrably false and misleading to investors and potential asset purchasers.?
The complaint also details IBM?s and Red Hat?s alleged conspiracy, summarizing it as follows:
?Thereafter, IBM and Red Hat?divided the market for enterprise clients to protect IBM?s precious high-end server, software, and services business, they promoted each other?s operating system products, and they granted each other special technical access and abilities that were not made generally available and from which Xinuos and others were specifically excluded. These bad acts continue to this day.?
Xinuos alleges that the IBM and Red Hat conspiracy has harmed the open-source community and specifically Xinuos? OpenServer 10 product, which is based on FreeBSD, an open-source UNIX-based operating system and alternative to Red Hat?s Linux-based open-source operating system, RHEL. ?By dominating the Unix/Linux server operating system market, competing open-source operating systems, like our FreeBSD-based OpenServer 10, have been pushed out of the market,? said Snyder. ?This prevents developers and consumers from receiving the benefits that these products have to offer.?
Xinuos asserts claims under the copyright infringement provisions of 17 U.S. Code ?101, the Sherman Antitrust Act, the Clayton Antitrust Act, the Virgin Islands Antimonopoly Law, and Virgin Islands Unfair Competition and Unjust Enrichment common law. Xinuos has asked for both monetary damages and injunctive relief.
?While this case is about Xinuos and the theft of our intellectual property,? said Sean Snyder, President and CEO of Xinuos. ?It is also about market manipulation that has harmed consumers, competitors, the open-source community, and innovation itself.?
According to the complaint, at their peak, Xinuos? operating systems were the most widely-used operating systems in the Unix/Linux server operating system market. Xinuos? UnixWare 7 and OpenServer 5 and 6 server operating systems were popular because they were stable, reliable, and easy to manage. Xinuos alleges that in or around this time, IBM?s server operating systems were declining in popularity and new entrants to the market, such as Red Hat, were gaining market share and threatening IBM?s server operating system business, its underlying business selling server hardware, as well as related software and services.
Xinuos? complaint alleges that IBM then took unlawful steps to improve its market position and safeguard its business from competition:
?First, IBM stole Xinuos? intellectual property and used that stolen property to build and sell a product to compete with Xinuos itself. Second, stolen property in IBM?s hand, IBM and Red Hat illegally agreed to divide the relevant market and use their growing market powers to victimize consumers, innovative competitors, and innovation itself. Third, after IBM and Red Hat launched their conspiracy, IBM then acquired Red Hat to solidify and make permanent their scheme.?
The complaint further alleges that IBM has been misleading its investors about its rights to use Xinuos? code for more than a decade:
?IBM has made demonstrably and materially misleading statements in securities filings about its ownership interest in the Code. In every annual report filed with the SEC since 2008, IBM has represented that a third-party owns all of the UNIX and UnixWare copyrights, and that this third-party has waived any infringement claim against IBM. These self-serving representations are demonstrably false and misleading to investors and potential asset purchasers.?
The complaint also details IBM?s and Red Hat?s alleged conspiracy, summarizing it as follows:
?Thereafter, IBM and Red Hat?divided the market for enterprise clients to protect IBM?s precious high-end server, software, and services business, they promoted each other?s operating system products, and they granted each other special technical access and abilities that were not made generally available and from which Xinuos and others were specifically excluded. These bad acts continue to this day.?
Xinuos alleges that the IBM and Red Hat conspiracy has harmed the open-source community and specifically Xinuos? OpenServer 10 product, which is based on FreeBSD, an open-source UNIX-based operating system and alternative to Red Hat?s Linux-based open-source operating system, RHEL. ?By dominating the Unix/Linux server operating system market, competing open-source operating systems, like our FreeBSD-based OpenServer 10, have been pushed out of the market,? said Snyder. ?This prevents developers and consumers from receiving the benefits that these products have to offer.?
Xinuos asserts claims under the copyright infringement provisions of 17 U.S. Code ?101, the Sherman Antitrust Act, the Clayton Antitrust Act, the Virgin Islands Antimonopoly Law, and Virgin Islands Unfair Competition and Unjust Enrichment common law. Xinuos has asked for both monetary damages and injunctive relief.
Wikipedia reports:
The SCO Group's litigation rights against IBM and Novell did not transfer to UnXis, and The SCO Group subsequently renamed itself to The TSG Group.[21][23] UnXis indicated that it had no involvement or interest in any ongoing aspects of those actions: "There is no place for litigation in our vision or plan."[22] Indeed, UnXis would be indemnified from any legal costs of ongoing litigation.[24]
Reading about SCO in GrokLaw , which was placed in Archive status in 2013, was a regular daily occurrence for me and millions of others. Although PJ was reported as having retired shortly after 2011 , it appears that "`pj" and some others are adding articles occasionally. Personally, I think she won't start GrokLaw up again because this case will probably the shortest in the Zombie's history of cases. I suspect that the IBM lawyers will dump GrokLaw on the judge's bench and point out that Xinuos' OpenServer software has been based on BSD-Linux from the beginning. And, they'll probably give the judge a few past quotes from the Xinuos CEO, which I quoted above in the Wikipedia link.