I. SCO's Refusal to Specify Its Claims [continued]
37. SCO has obfuscated its claims and has hidden its supposed evidence because the evidence does not demonstrate the breaches and violations that SCO has alleged. Moreover, key developers and influence leaders in the open-source community, including leaders of Linux kernel development, have stated publicly that they are prepared immediately to remove any allegedly offending material from the Linux kernel. Rather than permit remediation or mitigation of its alleged injuries (which are non-existent), SCO has declined to reveal the particulars of the alleged violations in order to artificially and improperly inflate the price of its stock.
38. While refusing to supply IBM with meaningful specifics regarding the alleged breaches, SCO has shown its purported evidence to analysts and journalists who are interested in seeing it, subject to a nondisclosure agreement.
J. SCO's Disparagement of AIX and Linux
40. Here again, SCO's false and misleading statements have not been limited to AIX. In recognition of the fact that its claims against IBM are baseless, and in flat contradiction of the allegation of its original complaint (e.g., that this case is not about the relative merits of proprietary versus open-source software), SCO has now falsely stated, in effect, it owns and is entitled to collect royalties regarding Linux. For example, on July 21, 2003, McBride stated, on behalf of SCO, Linux infringes SCO's rights and, as "a viable alternative to legal enforcement" SCO is prepared to offer a license to SCO's UNIX products that would, SCO says, permit lawful use of Linux.
41. SCO's false and misleading statements have also damaged the reputation and prospects of the entire open-source community. SCO's misconduct undermines the substantial public interest in the provision of software that is reliable, inexpensive, and accessible by the general public.
L. Effects of SCO's Misconduct and Its State of Mind
43. As a result of the misconduct described above, SCO has not only artificially inflated its stock price and been unjustly enriched, but also it has injured IBM and, more broadly, the open-source movement. SCO's misconduct has resulted in damage to IBM's business, including its reputation and goodwill, has interfered with its prospective economic relations and has required it unduly to divert resources to respond to SCO's baseless allegations. SCO has injured the open-source movement, of which it was once a part, by fostering fear, uncertainty and doubt about its and others' rights to use UNIX, AIX and Linux.
IBM's Facts Are Correct
Those are IBM's Background allegations against which IBM's Sixth Counterclaim, Breach of the GNU General Public License, is cast. We have been following closely the SCO IP story since January 2003's LinuxWorld Expo in New York City -- including in depth discussions with Linux Torvalds, other Linux kernel developers, GNU people, Linux distribution providers, IP attorneys including Tom Carey and John Ferrell, and the SCO people too.
Based on our in-depth and extensive coverage of the SCO IP issues to this point, IBM's rendition of the facts in the above paragraphs from its Answer and Counterclaim appear to be true and correct. To whatever extent this set of facts is relevant to the SCO v IBM lawsuit and the claims of both parties, the trier of fact in this lawsuit, a jury, is very likely to go along with this rendition of facts listed above as the facts of this lawsuit.
That does not necessarily mean this is going to be a slam-dunk for IBM. All the evidence on both sides has not been laid out yet. So the fact pattern could change.
One never can tell for sure what a jury will do once it gets in the jury room. Add to that the fact that the trial court judge will have some latitude in how he applies the law to the facts determined by the jury. And do not forget the Appellate courts. Unless there is a settlement before judgment in this case, there is little doubt the loser will appeal the rulings of the trial court.
IBM's Sixth Counterclaim, Breach of the GNU General Public License
The operative paragraphs of IBM's Sixth Counterclaim, Breach of the GNU General Public License, are paragraphs 75 through 79. These paragraphs are based upon and include all those paragraphs and allegations of facts in the Background section of the Counterclaim.
75. IBM has made contributions of source code to Linux under the GPL on the condition that users and distributors of such code, including SCO, abide by the terms of the GPL in modifying and distributing Linux products, including, for example, the requirement that they distribute all versions of GPL'd software (original or derivative) under the GPL and only the GPL pursuant to § 2(b) of the GPL.
76. SCO has taken source code made available by IBM under the GPL, included that code in SCO's Linux products, and distributed significant portions of those products under the GPL. By so doing, SCO accepted the terms of the GPL (pursuant to GPL § 5), both with respect to source code made available by IBM under the GPL and with respect to SCO's own Linux distributions.
77. The GPL prohibits SCO from asserting certain proprietary rights (such as the right to collect license fees) over, or attempting to restrict further distribution of any source code distributed by SCO under the terms of the GPL. Based on the misconduct described herein, SCO's rights to distribute the copyrighted works of others included in Linux under the GPL have been terminated pursuant to § 4 of the GPL.
78. SCO has breached the GPL by, among other things, (1) claiming ownership rights over Linux code, including IBM contributions; (2) seeking to collect and collecting license fees with respect to Linux code, including IBM contributions; (3) copying, modifying, sublicensing or distributing Linux, including IBM contributions, on terms other than those set out in the GPL and after its rights under the GPL terminated; and (4) seeking to impose additional restrictions on the recipients of Linux code, including IBM contributions, distributed by SCO.
79. As a result of SCO's breaches of the GPL, countless developers and users of Linux including IBM have suffered and will continue to suffer damages and other irreparable injury. IBM is entitled to an award of damages in an amount to be determined at trial and to an injunction prohibiting SCO from its continuing and threatened breaches of the GPL.
Again, please notice that none of these paragraphs use the term copyright infringement directly. However, the actionable SCO conduct that IBM alleges is conduct that involves the exclusive rights granted to copyright owners under Sections 106 and 501 et seq of the United States Copyright Act, 17 U.S.C. 106, 501 et seq -- copying, modifying, and distributing copies of a copyrighted work -- and licensing those rights.
Interestingly, IBM doesn't claim an infringement on copyrights that IBM owns but rather basis its Sixth Counterclaim claims on the GNU GPL which freely allows use of the rights to copy, modify, and distribute the Linux kernel and the GNU/Linux operating system and any other associated GPL-licensed software.
However, in paragraphs 75, 76, and 78 of its Counterclaims, IBM does allege that some of the "Linux' code that involves use by SCO that violates the GNU GPL is code that IBM contributed to "Linux".
In IBM's Prayer For Relief, IBM addresses the Linux kernel and GNU/Linux OS copyright issues in parts (f)(v) and (f)(vi):
WHEREFORE, counterclaim-plaintiff IBM prays that this Court enter judgment on the counterclaims in favor of IBM and against SCO:
(f) granting IBM injunctive relief, enjoining and restraining SCO and its affiliates, subsidiaries, officers, agents, servants, employees, attorneys, successors and assigns and all others persons acting in concert with them from further violating IBM's rights as described above, including in particular from . . . (v) claiming ownership rights over code made available under the GPL; (vi) collecting license fees with respect to code made available under the GPL.
