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"Death to Linux"? No, an IBM Countersuit Instead
Thursday, August 07 2003 @ 10:55 AM EDT

Stephen Shankland is reporting that IBM has filed a countersuit today. No details yet, but I'm working on it. Wait, someone just posted this in the comments section. The article says IBM says SCO is violating their patents and it stands on the GPL.

Oh my, oh my, it doesn't get any better than that:

"In a 45-page document filed late Wednesday, IBM argues that because SCO distributed a version of Linux under the open-source General Public License ( GPL ), it can't claim that Linux software is proprietary. IBM also argues that SCO software violates four IBM patents and that the company interfered with IBM's business by saying it had terminated IBM's right to ship a Unix product, AIX.

"IBM is seeking unspecified monetary damages and an injunction stopping SCO from shipping its software. The counterclaims came as part of Big Blue's answer to SCO's amended suit and were filed in the same federal district court in Utah."

Earlier, in writing about the license, I couldn't help mocking and horsing around. But now, I'm as serious as a heart attack.

It's clear that SCO's license is designed to kill Linux, the kernel, off completely. Whether that was the original plan, I don't know. Certainly, SCO has announced that they have a way to run GNU/Linux apps on their proprietary UNIX kernel. And I certainly hope someone in a lawsuit with them asks to see the code of their Linux Personality Kernel to check for GPL code. Don't ask for the one they said they just cleaned up to remove any IP issues. Ask for the one they released under the GPL originally. Oh, wait. The beauty of the GPL. Just look at an older release.

So, their plan means death to Linux; whether that was the intent or not, it would be the effect. No software distributor can sign this license and continue to distribute Linux. The only right anyone has to distribute GPL code is under the GPL, which by its terms requires that no conflicting license interfere with the four freedoms the GPL grants. SCO acknowledges this in their explanation page for the license:

"The license does not grant any rights to use SCO IP in source format, nor does it grant any distribution rights. It is therefore inadequate to cure infringements for distributors, or any entity that uses, modifies or distributes Linux source code."

So, the license does not solve the "Linux problem", except in the Hitlerian sense. They have no method for resolving their IP claims that would allow distributors to stay in business. And they are "surprised" Red Hat decided to sue instead? Is this how they started out? Maybe, but I don't think so. I think when they started, they thought there'd be some way to tax GPL software for their own benefit. Then they hit the GPL wall. By then they were in so deep, they didn't and don't know what else to do but keep going.

In the teleconference, McBride said this license might give impetus to a way for GPL coders to make some money off "their hard work, their proprietary work." Um, what? Proprietary what? The only money I see heading in anyone's direction in this plan is to SCO, not the Linux coders. If you can't modify or redistribute the code, I think it'll be a bit hard for coders to make any money from it. (It's also a fact that people already make money from their GPL work. As in Red Hat. Not that money is the dominant motivation for creating a free operating system, but making money from your code is not a violation of the GPL. And making money is certainly Red Hat's intention.)

Speaking of violating the GPL, this license by its terms is a violation, despite SCO's claims that you can have both.

Here's what I think may have happened. They started out with zero comprehension of the GPL. Actually, less, because they had a miscomprehension. After the last teleconference, where they first announced the licensing plan, they didn't call on me to ask a question, but they announced if anyone had any followup questions, we could email them. I did send them the following four questions, and I got an email back saying they would be replying. They have not done so to date, unless you count yesterday's teleconference remarks and the license terms as their answer to my first question. Here are the questions I sent:

"1. My understanding of the GPL is that no binary-only code can be released in conjunction with GPL code, when the two make up one program as opposed to being a merged aggegate. In other words, while it is acceptable to release two separate programs in the same distribution, one GPL and the other proprietary, any merging of the two codes into a single program would require that the proprietary code be released as GPL code and that source code be made available or that no distribution be made. Any distribution under any other terms than the GPL would be a violation of the copyrights of the GPL code. Can you please explain how it would be possible for you to offer a run-only license for binary code without violating the GPL? And if it isn't possible, are you not putting enterprise users in a bind, where they can't simultaneously be incompliance with you and with the GPL? Cf.

"2. My understanding of copyright law is that registration permits money damages only from the date of registration, and that there is no prima facie assumption of the validity of the copyright if you register more than 5 years after first publication. Does this mean you will be looking for money damages only from the date of this announced registration? Or was it a copyright transfer or restoration of a copyright, as opposed to an initial registration? And if an accused infringer doesn't believe you have a valid copyright, and that is conceivable, what would your options then be?

"3. Is there any possibility that the code that you claim is infringing is actually code your company donated around 2000 or 2001 to IBM's AIX 5L open UNIX version? I noted that your web site, in discussing the project, mentioned NUMA and SMP, for example, as two aspects of that project. And can you please provide a list of what code you donated to that project, please?

"4. Since there is some doubt as to whether the code in question is infringing -- one analyst, for example, said he just doesn't know -- and since the code you showed was edited to remove dates, for example, how would a recipient of a claim of infringement be certain if the claim was valid, if you haven't provided proof certain?"

From my email of July 22, if not before, they certainly were on notice that it is contrary to the terms of the GPL to distribute GPL code with a conflicting license. However, they perhaps read the Mere Aggregation clause in the GPL and thought they had an out. They are mistaken. Here is an explantion of what a compatible license would entail:

"What does it mean to say a license is 'compatible with the GPL'. It means that the other license and the GNU GPL are compatible; you can combine code released under the other license with code released under the GNU GPL in one larger program.

"The GPL permits such a combination provided it is released under the GNU GPL. The other license is compatible with the GPL if it permits this too."

Here is a bit from the GPL FAQ page explaining a little more:

"What is the difference between 'mere aggregation' and 'combining two modules into one program'? Mere aggregation of two programs means putting them side by side on the same CD-ROM or hard disk. We use this term in the case where they are separate programs, not parts of a single program. In this case, if one of the programs is covered by the GPL, it has no effect on the other program.

"Combining two modules means connecting them together so that they form a single larger program. If either part is covered by the GPL, the whole combination must also be released under the GPL--if you can't, or won't, do that, you may not combine them.

"What constitutes combining two parts into one program? This is a legal question, which ultimately judges will decide. We believe that a proper criterion depends both on the mechanism of communication (exec, pipes, rpc, function calls within a shared address space, etc.) and the semantics of the communication (what kinds of information are interchanged).

"If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.

"By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs. But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program."

SCO has given its opinion that if you tried to remove the infringing code, you'd have nothing left to run. So are they licensing a separate program as a mere aggregation, just side-by-side on a CD? By their own testimony, they are not. So they are ipso facto in violation of the GPL. Do they cynically know this? I don't know. But I notice they pointedly say that they are not releasing any software with the license and that it covers only software the end user already has received. Perhaps they think this covers their behind. It's also possible they failed GPL summer school, I suppose.

Here's the best part of the GPL in the current situation:

"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

Does that not say you can't sublicense and if you try, it's void? This isn't even touching on the issue of SCO releasing under the GPL itself. If it didn't, then they had no right to distribute their code with GPL code at all and so are in violation of the copyrights of the authors of the kernel. They distributed for years and continued after they knew about the "infringing" code:

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

"6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License."

So, I would say they have painted themselves into a corner. And I see no way out for them. The GPL really is their tar baby. No matter how they try to attack it, they just get more and more stuck. No wonder they sounded so jumpy and scattered at the teleconference and their licensing pages are written with so many errors of punctuation and grammar. It looks to me like somebody's nervous. I don't blame them.

Finally, SCO is having its lawyers look into whether their license is legal in Australia. Go, Aussie warriors! SCO says this has nothing to do with them. Heh heh.

Update: Here's the SCO statement, put out as a press release:

SCO Media Statement Re IBM Counterclaims

LINDON, Utah, Aug 07, 2003 -- We view IBM's counterclaim filing today as an effort to distract attention from its flawed Linux business model. It repeats the same unsubstantiated allegations made in Red Hat's filing earlier this week. If IBM were serious about addressing the real problems with Linux, it would offer full customer indemnification and move away from the GPL license. As the stakes continue to rise in the Linux battles, it becomes increasingly clear that the core issue is bigger than SCO (Nasdaq: SCOX), Red Hat, or even IBM. The core issue is about the value of intellectual property in an Internet age. In a strange alliance, IBM and the Free Software Foundation have lined up on the same side of this argument in support of the GPL. IBM urges its customers to use non- warranted, unprotected software. This software violates SCO's intellectual property rights in UNIX, and fails to give comfort to customers going forward in use of Linux. If IBM wants customers to accept the GPL risk, it should indemnify them against that risk. The continuing refusal to provide customer indemnification is IBM's truest measure of belief in its recently filed claims.

Regarding Patent Accusations

SCO has shipped these products for many years, in some cases for nearly two decades, and this is the first time that IBM has ever raised an issue about patent infringement in these products.

Furthermore, these claims were not raised in IBM's original answer.

SCO reiterates its position that it intends to defend its intellectual property rights. SCO will remain on course to require customers to license infringing Linux implementations as a condition of further use. This is the best and clearest course for customers to minimize Linux problems.

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