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SCO, Meet the GPL -- IBM's Legal Cavalry Charges
Thursday, August 07 2003 @ 07:08 PM EDT

I've seen the papers. I can't post them, but they'll be available in due course, either tomorrow or more likely the day after at the Utah courts, via Pacer. Here's an advance peek:

There are ten, count them, ten counterclaims. The main theme is this: that SCO has been misleading the world by falsely stating that IBM's license has been terminated. It was never terminated, they say, in part because it is irrevocable and also because it was a 3-way contract, and Novell, the third party, stepped in and blocked the attempt at termination. And SCO, the papers charge, is in violation of the GPL and has had its rights to distribute GPL code terminated.

Further, SCO has misleadingly overstated its rights to UNIX, AIX, and IBM's Linux-related products, for its own financial benefit, IBM charges.

Its false statements have damaged IBM's reputation, interfered with its prospective business, both AIX and Linux-related, and violated the GPL.

SCO is trying, the papers say, to assert rights it does not have by falsely claiming the right to terminate IBM's irrevocable and perpetual UNIX rights.

Further, SCO committed not to assert certain proprietary rights over or restrict further distribution of any GPL source code distributed by SCO when it itself distributed the code under the GPL. IBM contributed code to Linux under the GPL on the condition that users and distributors, including SCO, abide by the terms of the GPL. But SCO, IBM says, has taken source code made available by IBM under the GPL, included that code in SCO's Linux products, and distributed significant protions of those products under the GPL. By doing so, SCO accepted the terms of the GPL (Section 5).

The GPL prohibits SCO from asserting proprietary rights (such as the right to collect license fees), or attempting to restrict distribution of any source code distributed by SCO under the terms of the GPL. As a result, SCO's right to distribute the copyrighted works of others included in Linux under the GPL have been terminated pursuant to Section 4 of the GPL.

They also claim breach of contract, violations of the Lanham Act, unfair competition, intentional interference with prospective economic relations, and unfair and deceptive trade practices. Here's how IBM says SCO breached the GPL, by:

1. claiming ownership rights over Linux code, including IBM contributions

2. seeking to collect and collecting license fees for that code

3. copying, modifying, sublicensing or distributing Linux on terms other than those set out in the GPL and after its rights under th GPL terminated

4. seeking to impose additional restrictions on the recipients of Linux code

IBM requests an injunction against such further breaches and damages to be determined at trial.

There are four patent infringement claims, respecting the following patents:

1. Patent No. 4,814,746, Data Compression Method (being infringed by UnixWare and Open Server;
2. No. 4,821,211, Method of Navigating Among Program Menus Using a Graphical Menu Tree (SCO Manager infringes);
3. No. 4,953,209, Self-Verifying Receipt and Acceptance System for Electronically Delivered Data Objects (UnixWare infringes);
4. No. 5,805,785, Method for Monitoring and Recovery of Subsystems in a Distributed/ Clustered System (Reliant HA infringes).
Relief IBM is requesting:
  • compensatory damages

  • damages pursuant to 15 USC Section 1117(a)

  • punitive damages

  • treble damages pursuant to 35 U.S.C. Section 284

  • declaratory relief, ruling that SCO has violated IBM's rights

  • injunctive relief, enjoining and restraining SCO from further misrepresenting SCO's rights and IBM's rights to UNIX technology or that IBM no longer has the right to use, produce and distribute AIX and Linux-related products; from publishing false and disparaging statements about AIX and IBM's Linux-related products; or claiming ownership rights over code made available under the GPL; from further infringement or inducement of infringement of their patents

  • costs, expenses and attorneys' fees

  • pre and post-judgment interest on the damages
What does it all mean? First, IBM is saying that the code it put in to Linux was theirs to donate and that SCO has wrongfully used it in violation of the code's license terms. That would be the GPL. Unless I missed the drift, IBM just let SCO know that the allegedly infringing code isn't SCO's, because they themselves accepted it under the GPL and redistributed it under the GPL. That means that part of their code just joined the free world, according to the papers.

Further, as a result of violating the GPL, they now have no rights to distribute GPL code. That goes to the heart of their new business model of using Linux apps on top of a UNIX kernel. If the court grants the injunction, then further infringement of the GPL is forbidden, which would include the license plan.

It also means that while Darl was shooting his mouth off, IBM was taking notes, and the majority of the other counterclaims are based on SCO spokespeople saying things to the press that IBM says were deceitful and damaging and derogatory, harming IBM's business and reputation, harming the reputation of Linux, and interfering with its potential customers, and they say their tortious conduct was and is willful and deliberate, hence they should be fined treble damages, because, they tell the court, this is an exceptional case, meriting such sanctions. They also ask the court to stop them from any further infringement of their four patents by ordering SCO to quit manufacturing or selling or distributing the infringing products listed above. So, if the court says yes, that's pretty much the end of SCO's business, both software and the licensing plan.

IBM sales people, in an internal memo from Bob Samson, Vice President, Systems Sales, IBM Systems Group, today were encouraged to turn people to the OSDL website to read "Questioning SCO: A Hard Look at Nebulous Claims," by Eben Moglen, General counsel of the Free Software Foundation, and to let everyone know, that as this lawsuit goes foward, "the industry will resolve it."

Man, I believe them. IBM, it appears, fully intends to turn SCO into mincemeat. And dear Darl was just the man to hand them the weapons to be able to do it.

And finally, a song of praise to the GPL. It's shining hour has arrived. And it is shining manfully. If you were longing for the GPL to have its day in court, you just got it. It is leading the charge.


Here's SCO's press release in reaction:

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.

And here's Groklaw's text version of the IBM Answer with Counterclaim [PDF]. Note that there was later an amended version filed, after SCO amended its Complaint, but this is the Answer with Counterclaims filed on this date by IBM. Here's the final version of IBM's Answer [text], and here's the final 2nd Amended Counterclaim [text].

  View Printable Version

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