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SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable
Monday, October 27 2003 @ 07:39 PM EST

Here's SCO's Reply to IBM's Amended Answer with Counterclaims [PDF].

The most significant thing they say is that the GPL isn't enforceable or applicable, and in paragraph 16 that Linux is an unauthorized "version" of UNIX:

Denies the allegations of paragraph 16 and alleges that Linux is, in actuality, an unauthorized version of UNIX that is structured, assembled and designed to be technologically indistinguishable from UNIX, and practically is distinguishable only in that Linux is a "free" version of UNIX designed to destroy proprietary operating system software.
I'm guessing you have a few words to say on that.

In their Sixth Affirmative Defense, they say:

The General Public License ("GPL") is unenforceable, void and/or voidable, and IBM's claims based thereon, or related thereto, are barred.
The Seventh Affirmative Defense adds:
The GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, estopped or otherwise barred as a matter of equity.
The Eighth adds:
The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based thereon, or related thereto, are barred.
They forgot to add that the GPL causes cancer. It's also responsible for the fires in California. And it's fattening.

If you care about the rest and are still listening, the other main things they say are that they deny "that Novell sold only part of its UNIX assets" and they deny "that IBM has any remaining rights under the referenced agreements". They also say that Sequent acquired certain UNIX rights pursuant to its own license agreements with AT&T "all of which IBM failed to attach to its counterclaim" and they admit only that IBM "acquired the stock of Sequent". This probably means IBM will say Sequent after they were bought comes under their license and SCO will say no, they stay under the old ones.

SCO "denies the enforceability or applicability of the GPL" and says SCO "may have" distributed the kernel and admits it distributed under the GPL.

Paragraph 42 is interesting. They say:

SCO was unaware of IBM's Linux-related investment prior to its formal announcements thereof, and further alleges that IBM secretly and improperly failed to disclose to SCO such Linux-related investments and its intentions with respect to Linux before and during Project Monterey.
So, our assignment, should we choose to accept it, is to find evidence on this point.

Look at paragraph 55. They admit they sent the 1500 letters to "the world's largest corporations" but deny the letters "threatened litigation".

In paragraphs 60 and 61, it acknowledges the existence of the Novell letters, "but denies any legal or factual basis for the said" letters.

It admits revoking IBM's right to "further use, license or distribute AIX". In paragraph 75, it admits it "licenses and distributes" UnixWare, "OpenServer", "SCO Manager," and "Reliant HA", but "denies infringement".

In paragraph 79, they say that despite having terminated IBM's right to use, license and distribute AIX, IBM is still bound by the AT&T Agreements and Amendment X's confidentiality requirements, which "specifically continue beyond termination".

Paragraph 120 is fascinating. They seem to be saying that not only did IBM violate SCO's "contract and intellectual property rights" (um...yesterday it was only contracts, wasn't it, according to SCO's Memorandum of Law?), but that IBM's contributions to Linux were under the GPL, a license they say is not applicable or enforceable.

In paragraph 122, they say IBM has no legal authority to place copyright notices on "certain of its AIX and Dynix contributions to UNIX" so they plan on fighting the legitimacy of IBM's copyright.

They go on to say that "IBM's purported copyright registrations are invalid and/or IBM has violated copyright laws in respect to its claims alleged and the claims based on, or related to, copyrights are barred." The Fifteenth Affirmative Defense explains:

On information and belief, one or more of the copyrights at issue is, or may be, unenforceable by reason of IBM's inequitable conduct, acts or omissions before the United States Patent and Trademark Office.

We all know how sloppy IBM's legal department has historically been, so this claim is likely to be left standing at the end of the day. Mwahahahaha. Not. And their *copyright* will be unenforceable because of their conduct at the *Patent and Trademark Office*? That's a new one on me.

Then they say IBM may not be the owner of the four patents and that they are in fact invalid, "for failure to comply with one of more requirements" of the US Code, including Sections 101, 102, 103 and/or 112 of Title 35. Of course, They failed to comply. The Big Blue guys don't forget to dot their i's or cross their t's. There's too many of them, for one thing. This is really ridiculous. It drones on some more about the patents not being valid.

Then it says IBM lacks standing to bring certain claims because they failed to "join one or more parties needed for just adjudication of their counterclaims, including, but not limited to the Free Software Foundation and contributors to the Linux 2.4 and 2.5 kernels."

They want you in there, guys. May their wish come true. (Copyright infringement dollar signs flash though my mind.) Then they ask for "dismissal with prejudice" or a judgment in their favor, with attorneys' fees and costs.

Right. Hold your breath, SCO. Please.

Well, folks, I guess it's true. They must really be trying to inspire IBM to buy them out. I don't see any legal hope for SCO.

As for the GPL, it's total war.


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