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| IBM Files Copyright Infringement Counterclaim and Love Speaks Out |
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Friday, September 26 2003 @ 12:13 PM EDT
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This is exciting. First IBM has filed a copyright infringement claim against SCO. They sent a memo to their sales staff about it. Second, they too say that indemnification is a way to kill Linux and they won't offer it. I am so relieved. I was afraid they'd take the bait SCO and HP created for them. Here's the scoop:
" . . . the new counterclaim charges that SCO infringed IBM's copyrights by distributing IBM's contributions to Linux after SCO had violated its Linux license by claiming a copyright on parts of Linux.
"IBM says in its counterclaim that SCO violated the general Public License under which Linux is distributed. The GPL requires Linux distributors to permit customers to freely copy the software.
"In the memo, signed by Robert Samson, an IBM sales manager, IBM said that: 'Most indemnities are narrowly drawn and are often invalidated by customer activities, such as making modifications or combining the indemnified product with other code, which are central to the vitality of open source.'
"It said the H-P indemnification requirements 'will inhibit customers from taking full advantage of the open source development process.'
"Mr. Samson's memo says 'HP's approach as outlined in the press, we believe runs fundamentally counter to the Linux value proposition.' Many users like Linux because they can view the source code making it easy to adapt the operating system for their own uses."
And the other big news is that Ransom Love has stepped out from the shadows and taken a stand. He has cut all ties to the company and says he'd never have gone in the direction SCO has taken:
" I think Caldera investors who wanted a quick return pressured the management. They seem to think that short-term, possible gains are more important than long term ones, which is unfortunate.
"I don't believe that the suit is good for the company or Linux."
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| Authored by: shaun on Friday, September 26 2003 @ 12:35 PM EDT |
When IBM does speak they hit with a big kaboom. I was amazed to read the article
from Ransom Love myself, do you think IBM will use him as a witness?
--Shaun[ Reply to This | # ]
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| Authored by: Wolffen on Friday, September 26 2003 @ 12:43 PM EDT |
Holy Crap! SCOX has dropped 3 points today, and 6 points since Monday! Down to
14.5 right now. It will be interesting to see if some magic PR comes out to
bring the price up.
I do have to admit, IBM's counterclaim is a bit....circular. It's dependent on
a judge finding the GPL completely valid, as well as find SCO in violation of
the GPL. While that may seem like a 'duh' to us, given the fact that 2
separate judges have blocked the FTC "Do Not Call" list, I'm losing
faith in our judicial system.
---
"You do not lead by hitting people over the head - that's assualt, not
leadership." - Dwight Eisenhower[ Reply to This | # ]
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| Authored by: Steve Martin on Friday, September 26 2003 @ 12:44 PM EDT |
At 12:30 PM EDT, SCOx stock is DOWN almost 16%, to
14.48!
'Bout damn' time.
[ Reply to This | # ]
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| Authored by: Nick on Friday, September 26 2003 @ 12:55 PM EDT |
| ...it said the H-P indemnification requirements "will inhibit
customers from
taking full advantage of the open source development
process." Mr. Samson's
memo says "HP's approach as outlined in the
press, we believe runs
fundamentally counter to the Linux value
proposition.
PJ was right.
IBM sees through the indemnification trap as well. Good
for them, and good for
PJ for standing up for what is right even when the
popular sentiment was
applauding HP. [ Reply to This | # ]
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| Authored by: tcranbrook on Friday, September 26 2003 @ 12:58 PM EDT |
| Not really OT, but just more evidence of how little the SCO thing is effecting
some decision making out there:
Microsoft Holdout Massachusetts Opts For Open
Source [ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 01:05 PM EDT |
From the article (otherwise a pretty accurate parrot-style
report):
...the new counterclaim charges that SCO infringed IBM's
copyrights by distributing IBM's contributions to Linux after SCO had violated
its Linux license by claiming a copyright on parts of Linux.
You've
got to wonder whether the author actually read through what he had written.
Given the backdrop of the RIAA debacle, IP=copyright is an understandable
misconception, and SCO have been mercilessly pushing the SCOvIBM=IP line. But
all you have to do is read this sentence to realise it is nonsense. SCO has
copyright on a whole load of code in Linux, as does IBM and 1001 other people, a
fact they are all welcome to point out any time they feel like it. If claiming a
copyright on parts of linux was a violation of the GPL, IBM could now be sued by
all the other developers.
Free != public domain, Free != gratis, copyright
[IS A STRICT SUBSET OF] IP, SCOvIBM==contract, GPL [RELIES ON] copyright, etc
etc etc. It does get rather complicated. Perhaps we need a dictionary of terms
relevant to SCO, complete with both SCOspeak and correct definitions.
Hmmmm.... [ Reply to This | # ]
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- Wha...?? - Authored by: Phong on Friday, September 26 2003 @ 03:33 PM EDT
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| Authored by: Anonymous on Friday, September 26 2003 @ 01:11 PM EDT |
I have to admit, there is an attorney that just earned his wages on that one.
As I understand this, if SCO loses their court case, they lose.
If SCO wins their court case against IBM, then IBM's countersuit is
automatically won, because it is EXACTLY the same claim... and SCO loses.
My applause and my hat is tipped to an unknown attorney.[ Reply to This | # ]
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| Authored by: tcranbrook on Friday, September 26 2003 @ 01:20 PM EDT |
During the course of the discussion about the Canopy article on Slashdot, an interesting series of post brought to light this Chart . It claims to show the “SCO
Intellectual Property Pedigree” . I think that we can safely assume that this
document will be used, and is being used, to support SCOs claims.
The
chart is a marked up version of the original source chart, which can be found here. The original is a historical charting of the
development and influences of the many versions of Unix and Unix like operating
systems and kernels. It is produced and maintained by Éric Lévénez . SCO is trying to create the impression that the links
shown in this chart are IP dependencies and derivatives. That is not the case.
The leading page to the original chart carries this
footnote:
Note 1 : an arrow indicates an inheritance like a
compatibility, it is not only a matter of source code.
These are
associations by influence and compatibility, not source code derivations, and
certainly NOT IP dependencies.
The funny thing is, however, that even
assuming that the chart links actually were IP dependencies, it would still not
support their claim to Linux IP. Notice that their claim of SCO Linux IP
actually starts with Linux 0. 01, from the very beginning. This is from a link
to Minix, and then back to the Unix Time-sharing System, and NOT even to the
System V branch. If you actually trace the links further in the chart, I could
find none that links from System V to Linux, but actually several thats links
from Linux back to System V
[ Reply to This | # ]
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| Authored by: raph on Friday, September 26 2003 @ 01:34 PM EDT |
| I loved this sentence in particular from the Ransom Love interview:
But,
that said, I wouldn't want to test the GPL in court, particularly given
Caldera's history of voluntary compliance with it.
Btw, I think IBM's
position on indemnification is exactly right. I still don't think that what HP
did is wrong,, but agree that IBM is taking an approach much more
consistent with being a corporate leader in the free software movement. [ Reply to This | # ]
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| Authored by: troy on Friday, September 26 2003 @ 01:41 PM EDT |
| Great news!
What I'm thinking about right now is ESR's (if I remember right)
big smile after running his 'shredder'. Since many of the parties involved have
access to SCO's source, I'm assuming that they did a comparison. I'm pretty
sure that IBM wouldn't file a suit like this unless they are certain that the
Linux tree is legit.
So I don't think the important thing here is the fact
that there is another suit involved. I think this is a pretty clear indication
that there is nothing that SCO or anyone else can make make a stink about.
That's the BIG news. [ Reply to This | # ]
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| Authored by: brenda banks on Friday, September 26 2003 @ 01:47 PM EDT |
http://news.com.com/2001-7344_3-0.html?tag=gutspro
i just got home so dont know if this is a repeat
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br3n[ Reply to This | # ]
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| Authored by: ra on Friday, September 26 2003 @ 01:48 PM EDT |
This new suit sounds a lot like the countersuit filed in early August.
Has anyone verified a new filing?[ Reply to This | # ]
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- Wait a second - Authored by: Anonymous on Friday, September 26 2003 @ 02:06 PM EDT
- Wait a second - Authored by: tcranbrook on Friday, September 26 2003 @ 02:30 PM EDT
- New Filing - Authored by: Anonymous on Friday, September 26 2003 @ 08:46 PM EDT
- Wait a second - Authored by: Anonymous on Friday, September 26 2003 @ 11:58 PM EDT
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| Authored by: Anonymous on Friday, September 26 2003 @ 02:53 PM EDT |
"Second, they too say that indemnification is a way to kill Linux and they
won't offer it. I am so relieved."
The article doesn't say that...[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 02:54 PM EDT |
Great timing on all of this too. Since the news broke on Friday, everone will
have all weekend to read it- articles will probably stay online longer. SCO has
no chance to issue any PR FUD until Monday <G>. Last I looked, the SCO
stock was down to 14.30, which is excellent news. Let's hope Darl looks for a
new job soon- he is getting tiresome.[ Reply to This | # ]
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| Authored by: amcguinn on Friday, September 26 2003 @ 03:05 PM EDT |
First, the suit referred to is almost certainly the countersuit from weeks
ago -- it reads almost word for word like counterclaim 6. The press are
reporting it as news now because they'd never done enough research before to
have heard about it. Now the tide is turning against SCO, they will probably,
like a mob, be just as diligent in publishing anti-SCO stuff as they previously
were with pro-SCO stuff. Good for us, but not admirable.
Second, IBM did not
say "indemnification is a way to kill Linux". They said "we believe [it] runs
fundamentally counter to the Linux value proposition", which I would interpret
as meaning, "If you're relying on an indemnification, you're not getting full
value from Linux", and which I would entirely agree with. "a way to kill Linux"
is a much stronger description, which I think is silly. I know some people
believe it, but I don't consider IBM's reasoned statements support it.
It's a
good thing IBM aren't offering indemnification, as that could potentially
complicate SCOvIBM, which we all want to be decided as soon as possible. [ Reply to This | # ]
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| Authored by: brenda banks on Friday, September 26 2003 @ 03:11 PM EDT |
http://www.infoworld.com/article/03/09/26/HNibmclaim_1.html
another good article
darl sounds amazed that IBM would do this
---
br3n[ Reply to This | # ]
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| Authored by: ljdursi on Friday, September 26 2003 @ 03:17 PM EDT |
| While I hate to disagree with the sentiment that journalists are rubbish, I
think the following is mistaken:
``First, the suit referred to is almost
certainly the countersuit from weeks ago -- it reads almost word for word like
counterclaim 6.''
According to the infoworld
article, the memo sent out by IBM said that it ammeded the claims on
Thursday; the Reuters article
(posted for instance at MSN money claims to have gotten a copy of the
ammeded filings. [ Reply to This | # ]
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| Authored by: plungermonkey on Friday, September 26 2003 @ 03:36 PM EDT |
This is simply delicious! If there was ever a priceless moment in this whole
fiasco, this is it :o)
I have to wonder what is going through SCOG's mind long about now. Looks to me
like they're about to start having a year long "week of Mondays".
Indeed, a red letter day...
---
An ignorant person knows no better, a studid person knows better and still does
what is wrong. Which one are you?[ Reply to This | # ]
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| Authored by: ra on Friday, September 26 2003 @ 03:45 PM EDT |
From
http://www.infoworld.com/article/03/09/26/HNibmclaim_1.html
"Stowell disputed the idea that SCO could no longer distribute Linux.
"We're the copyright holder for the core Unix operating system. If we
want to charge someone a licensing fee for using our copyrighted software
that's gone into Linux, then we have that prerogative," he said.
"If we want to continue to distribute Linux to our existing customers, we
can do that because we own the copyrights on that Unix software." "
At least here Stowell is explicitly talking about copyrights, not "control
rights" to "thousands of files".
Is this a new thing caused by their inability to get away with saying
"IP"?
If so, score 1 for Groklaw.
<whisper>
By the way, someone still hasn't taken GPL 101. Let's allow him to remain in
ignorance until he gets to court.
</whisper>[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 04:23 PM EDT |
"In August, IBM filed a counter lawsuit against SCO, maintaining that SCO
had violated the GPL (GNU General Public License) software license that governs
Linux."
"One of the new counterclaims is that SCO infringed IBM's copyrights by,
among other things, copying and distributing IBM contributions to Linux without
permission after SCO's rights under the General Public License (GPL) were
terminated due to their breach," wrote Bob Samson, IBM's vice president
of systems sales in the e-mail."
http://www.infoworld.com/article/03/09/26/HNibmclaim_1.html
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 04:25 PM EDT |
| What counts is that, if the news reports are true, they are finally
citing USC-17 as a cause of complaint. The first set of counter claims did not
specify infringement, just violating the contract of the GPL.
Anyone
working on getting the actual papers? [ Reply to This | # ]
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| Authored by: Alex on Friday, September 26 2003 @ 04:55 PM EDT |
This is just an opinion, but I don't think IBM and HP are working at cross
purposes. What we're seeing here, now that the big Linux companies have gotten
themselves together and done due diligence on the code, is a well choreographed
one-two punch.
How much do you want to bet that the FSF or another big Linux company, such as
SuSE or Mandrake does something nasty on Monday, with perhaps another company
doing something nasty on Tuesday.
By the way, a brief look at Yahoo tells me that SCO has gone down almost exactly
six dollars this week. I'm going to Disneyland.
Alex[ Reply to This | # ]
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| Authored by: shaun on Friday, September 26 2003 @ 05:04 PM EDT |
SCOX last sale $14.29 Down 2.94 Change 17.06%
Share Volume 742,793
They actuall dropped $3.06 at one point but they recovered slightly.
--Shaun[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 05:33 PM EDT |
Charles
I still don't think HP have done any thing wrong. As I said they have offered
"more" if you don't like it fall back to the GPL, just as the GPL
offers more, if you don't like it fall back to copyright law.
Having said that, who will I buy my servers from? IBM. Why? If SCO was stupid
enough to send out an “invoice” I would prefer to be in the
corner that wants to thump them, with IBM as the chief thumper, than the corner
with the wimps, with HP as the chief wimp.
IBM have not offered “weasel speak indemnities”, they have
offered backbone. I think that is the difference.[ Reply to This | # ]
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| Authored by: ljdursi on Friday, September 26 2003 @ 05:42 PM EDT |
| The whole HP indemnification thing has been hashed out here, but discussion
still seems to be going on, so let me toss in my two cents.
Nick
said:
So while on the surface HP's actions would seem to be
helpful to the
clueless management types who don't understand that there
is
absolutely no need for indemnification, it also ties right into SCO's
FUD
campaign.
and let me add that it's much, much worse than
this.
The details of the HP indemnification is what makes it terrible ---
they would only idemnify you if you didn't modify the code at all. Now, if
you're going into the indemnification game, this is the only sensible way to do
it; after all, otherwise someone could steal some MicroSoft code, put it in
their version of the Linux Kernel, start distributing it, and HP would be left
holding the bag.
But think that through for a second. If all the bigs
followed suit, now you'd have a bunch of different companies offering versions
of linux that you couldn't change --- you'd end up with Linux broken up into
a bunch of different proprietary codes, albeit ones you were allowed to
see the source code to.
In a very meaningful sense, this would be the
end of Linux as an open-source product. [ Reply to This | # ]
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| Authored by: Alizarin on Friday, September 26 2003 @ 05:53 PM EDT |
Saw this over on Slashdot in a post about the same subject. It was so fitting I
thought I would reprint it here:
[begin quoting, from this
comment]
But wouldn't a much better obligatory Matrix quote
be:
I know you're out there. I can feel you now. I know that you're
afraid... afraid of us. You're afraid of change. I don't know the future. I
didn't come here to tell you how this is going to end. I came here to tell how
it's going to begin. I'm going to hang up this phone, and then show these people
what you don't want them to see. I'm going to show them a world without you. A
world without rules or controls, borders or boundaries. A world where anything
is possible. Where we go from there is a choice I leave to you.
[End
quoting]
Not only is the Matrix awesome, but this quote (and probably a few
others in the movie) is truely fitting.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 07:05 PM EDT |
| He need not worry about Linux. Come what may, it's here to stay. [ Reply to This | # ]
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| Authored by: AdamBaker on Friday, September 26 2003 @ 07:06 PM EDT |
A quote from the Ransom Love interview that no-one else seems to have picked up
on.
"Indeed, at first we wanted to open-source all of Unix's code, but we
quickly found that even though we owned it, it was, and still is, full of other
companies' copyrights."
SCO have been spouting about how they have clear title to Unix. This
demonstrates that they know that isn't true. It also shows that Caldera didn't
perform appropriate due dilligence before their Unix acquisition - they should
have found out about the other companies copyrights before purchase.
Combining these facts makes it quite clear that SCO don't have full knowledge
of who owns what in Unix - if they did they would have been able to proceed with
their original plan in the way most other projects open a previously closed
source base by publishing the bits they own and allowing anyone who wants to
contribute to fill in the gaps.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 07:46 PM EDT |
SCO has posted the legal document <a
href="http://www.sco.com/ibmlawsuit/ibmamendedcounterclaims.pdf">
here</a>.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 08:13 PM EDT |
www.sco.com/ibmlawsuit/ibmamendedcounterclaims.pdf
The IBM steamroller just got on the fast track.
Not only are they charging infringement of IBM's copyrights (several listed,
with record numbers) they are asking for a declaratory judgement (another put up
or shut up permanently request).
Page 36 ...
And on Page 37, IBM reminds the court that there IS a controversy bewtween IBM
and SCO on these issues. (SCO can't try to weeezle out of the request for
declaratory judgement like they did RedHat's)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 08:37 PM EDT |
"In the memo, signed by Robert Samson, an IBM sales manager, IBM said
that: 'Most indemnities are narrowly drawn and are often invalidated by
customer activities, such as making modifications or combining the indemnified
product with other code, which are central to the vitality of open source.'
Okay, so where is Samson's memo? The memo is the original source document, and
what we should be discussing, not someone's article mentioning this memo. I
searched and could not find Mr. Samson's memo on the web. Anyone have it?
Does anyone remember Darl McBride's recent letter to the Open Source movement?
In it, he misquoted a Computerwire article. His misquote was caught, and he
looked sort of silly. Before anybody makes arguments about IBM's position, I
think it would be wise to have Samson's actual memo to refer to, not someone's
interpretation of this memo.....[ Reply to This | # ]
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| Authored by: brenda banks on Friday, September 26 2003 @ 09:01 PM EDT |
" Armonk, New York-based IBM made several counterclaims, including an
allegation that SCO itself contributed IBM's copyrighted software code into
Linux."
did ya read that ?
i missed it first time i read it
hehehehe
they gave them a big slap
---
br3n[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 09:05 PM EDT |
Ransom Love also said this:
"I do believe IBM has not played clean with SCO. "[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 09:11 PM EDT |
Just goes to show: "Do now underestimate IBM". They are a huge
force, any which way you look at them.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 26 2003 @ 09:18 PM EDT |
One thing I particularly liked about IBM's new counter-claim, and that I hope
will have some impact on the judge as well, is that when it came to SCO's
alleged infringement of IBM's copyrighted code, IBM listed it's copyrights,
thereby pointing out which sections SCO was infringing upon.
SCO still hasn't shown, even in the court documents, what code it alleges is
infringing, or what rights it has to said code (copyright, patent, trade secret,
etc.?).
If I were the judge, and IANAL much less a judge, I would direct SCO to provide
specific instances and/or examples of infringement in its response, and specify
which laws apply to each example -- or expect declaratory judgement to be
granted in IBM's favor.
Any chance of that happening?
[ Reply to This | # ]
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| Authored by: joebeone on Friday, September 26 2003 @ 09:30 PM EDT |
| Man... there's some heavy stuff in the new counterclaims:
"38. Due to the
open-source nature of many of SCO's products, and the licenses under which it
has developed and distributed them, SCO's collection of trademarks
constitutes its most important intellectual property." [ Reply to This | # ]
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| Authored by: Alex on Friday, September 26 2003 @ 10:04 PM EDT |
Someone on Slashdot today likened IBM to Godzilla:
"He's a monster, but sometimes he helps us fight off other monsters. We
can cheer as long as he's saving Tokyo. Once that's done, we just have to make
sure he goes back into the ocean."
Perfect.
Alex[ Reply to This | # ]
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- Godzilla - Authored by: Anonymous on Friday, September 26 2003 @ 11:59 PM EDT
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| Authored by: brenda banks on Friday, September 26 2003 @ 10:55 PM EDT |
what does this mean?
will it move the case faster?
---
br3n[ Reply to This | # ]
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| Authored by: shaun on Friday, September 26 2003 @ 11:37 PM EDT |
An interesting timelins slideshow.
http://www.computerworld.com/unixtimeline?date=1966[ Reply to This | # ]
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| Authored by: Scott_Lazar on Saturday, September 27 2003 @ 12:27 AM EDT |
Trying to stay on an even keel regarding IBM's countersuit (does anyone else
admit to breaking out in spontaneous laughter reading the countersuit?),I find
not just the verbiage used, but also the fact that IBM has also thrown down the
gauntlet regarding their own patents (they've been perpetually the most
prolific filer of patents of ANY U.S. Corporation) particularly telling.
Crossing swords with IBM is an inherently dangerous profession.
Additionally while I'm not a purveyor of legalese, I find entries 45 and 46 to
be a truly stunning smack in the face to SCO. Who woulda thunk one could use
such dry language to call another a complete and dismal putz?
I realize while it's hard to contain my enthusiasm, unless a rainout should
occur (in the form of a declaratory judgement), this game isn't even past the
fourth inning yet. The finish should be an interesting thing to watch from the
bleachers though.
Scott
---
LINUX - Visibly superior![ Reply to This | # ]
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| Authored by: Dick Gingras on Saturday, September 27 2003 @ 01:17 AM EDT |
I'm in the middle of reading IBM's Amended Counterclaims filing and
comparing it to the original.
Three new counterclaims have been added. The
original Seventh thru Tenth counterclaims from the have been pushed down to
Ninth thru Twelfth and a Thirteenth was appended. (I had to type this in from
the PDF, so the typos are mine.)
Note that under 17 U.S.C 504 (c) Statutory
Damages:
"(2) In a case where the copyright owner sustains the burden of
proving, and the court finds, that infringement was committed willfully, the
court in its discretion may increase the award of statutory damages to a sum of
not more than $150,000."
That's $150,000 per infringement!
Also
note that all of the listed copyright violations are external to the Linux
kernel.
Without further ado, here's the salient
claims:
Seventh Counterclaim
Promissory Estoppel
114. SCO
made a clear and unambiguous promise to IBM and others that SCO would copy,
modify or distribute programs distributed by IBM and others under the GPL only
on the terms set out in the GPL; and would not assert rights to programs
distributed by SCO under the GPL except on the terms set out in the
GPL.
115. IBM and others reasonably, prudently and foreseeably relied upon
these promises, such as by making contributions under the GPL and committing
resources to
open-source projects.
116. SCO knew or should have known that
IBM and others would rely and in fact relied upon SCO's promises and knew or
should have known that those promises would induce and in fact induced action or
forbearance on the part of IBM and others.
117. SCO was and is aware of all
material facts relating to IBM's reliance on SCO's promises including but not
limited to IBM's contributions under the GPL, SCO's distributions under the GPL
and the intent, meaning and import of the GPL.
118. As a result of its
reliance upon SCO's promises, IBM has sustained injuries and is entitled to an
award of damages in an amount to be determined at trial. In addition to an award
of damages, IBM is entitled to declaratory and injunctive relief, including but
not limited to a declaration that SCO is not entitled to assert proprietary
rights with respect to products distributed by SCO under the GPL except upon the
trems set out in the GPL.
Eighth Counterclaim
Copyright
Infringement
120. As stated, IBM has made contributions of source code to
Linux under the GPL. IBM is, and at all relevant times has been, the owner of
valid copyrights in these contributions, as well as of all the rights, title and
interest in those copyrights.
121. IBM holds the following certificates of
copyright from the United States Copyright Office (copies of which are attached
hereto as Exhibits O-U), among others:
Registration No. Date of Reg
Title of Work
TX 5-757-696 Aug 15, 2003 IBM Enterprise Volume Management
System
TX 5-757-697 Aug 15, 2003 IBM Enterprise Class Event Logging
TX
5-757-698 Aug 15, 2003 IBM Dynamic Probes
TX 5-757-699 Aug 15, 2003
IBM Linux Support Power PC64
TX 5-757-700 Aug 15, 2003 IBM Omni Print
Driver
TX 5-757-701 Aug 15, 2003 IBM Journaled File System
TX 5-757-702
Aug 15, 2003 IBM Next Generation Posix Threading
122. IBM has placed
or caused to be placed a copyright notice on these contributions of source code
to Linux under the GPL and has otherwise complied with the laws of the United
States in this respect. IBM does not permit the unauthorized copying of its
Linux contributions.
123. IBM granted SCO and others a non-exclusive license
to the above-listed copyrighted contributions to Linux on the terms set out in
the GPL and only on the terms set out in the GPL. IBM made these contributions
on the condition that users and distributors of its copyrighted code, including
SCO, abide by the terms of the GPL in copying, modifying and distributing Linux
products.
124. SCO has infringed and is infringing IBM's copyrights by
copying, modifying, sublicensing and/or distributing Linux products except as
expressly provided under the GPL. SCO has taken copyrighted source code made
available by IBM under the GPL, included that code in SCO's Linux products, and
copied modified, sublicensed and/or distributed those products other than as
permitted under the GPL. SCO has no right - and has never had any right - to
copy, modify, sublicense and/or distribute the IBM copyrighted code except
pursuant to the GPL.
125. As a result of SCO's infringement, IBM has been
damaged and is entitled to an award of actual and/or statutory damages pursuant
to 17 U.S.C. 504 in an amount to be proven at trial. Because SCO's infringement
has been willful, deliberate and in utter disregard and derogation of IBM's
rights, IBM is entitled to enhanced statutory damages pursuant to 17 U.S.C 504.
IBM is entitled to costs and attorney's fees pursuant to 17 U.S.C 505.
126.
In addition, IBM is entitled to injunctive relief pursuant to 17 U.S.C 502, as
SCO will continue to infringe IBM's copyrights in violation of the copyright
laws othe the United States unless restrained by this Court. IBM is also
entitled to an appropriate order pursuant to 17 U.S.C. 503.
Thirteenth
Counterclaim
Declaratory judgement
152. SCO has breached its contractual
obligations to IBM, violated the Lanham Act, engaged in unfair competition,
interfered with IBM's prospective economic relations, engaged in unfair and
deceptive practices, breached the GPL, infringed IBM copyrights and infringed
IBM patents, as stated above.
153. Pursuant to 28 U.S.C. 2201, IBM is
entitled to declaratory relief with respect to SCO's and IBM's rights, including
among other things a declaration that SCO has violated IBM's rights as outlined
above by breaching its contractual obligations to IBM, violating the Lanham Act,
engaging in unfair and deceptive practices, breaching the GPL, infringing IBM
copyrights and ingringing IBM patents, and is estopped as outlined
above.
154. Moreover, IBM is entitled to a declaration that (1) SCO has no
right to assert, and is estopped from asserting, proprietary rights over
programs that SCO distributed under the GPL except as permitted by the GPL; (2)
SCO is not entitled to impose restrictions on the copying, modifying or
distributing of programs distributed by it under the GPL except as set out in
the GPL; and (3) any product into which SCO has incorporated code licensed
pursuant to the GPL is subject to the GPL and SCO may not assert rights with
respect to that code except as provided by the GPL.
---
SCO Caro
Mortuum Erit! [ Reply to This | # ]
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