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August 14, 2003

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IBM Ups SCO Lawsuit Ante to Include Copyright and Patent Infringement

Counterclaim Adds Linux Copyright Issues to the Fray

U.S. GNU/Linux Community Fights Back

By Mike Angelo -- 14 August 2003 (C) Page 4

Article Index

Overview

Tom Carey and MozillaQuest Magazine Discuss IBM's Counterclaims

The Ten IBM Counterclaims

IBM's Background Allegations of Facts

IBM's Facts Are Correct

IBM's Sixth Counterclaim, Breach of the GNU General Public License

Discussion

Conclusions

Resources

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!

SCO Has Not Found Its Code in Kernell.Org Linux Kernel or in GNU/Linux OS -- Conectiva, Mandrake, and SuSE Say No SCO in Their Code

Kernel.Org and GNU/Linux Developers Have Clean Code Safeguards -- Is SCO Trying to Dictate Linux Kernel and GNU/Linux Development Procedures?

Novell Says SCO Does Not Own Unix IP -- SCO Says it Does -- Novel Enters the SCO IP Fray with No Proof and More FUD

IS SCO NDA Sideshow Setting a Trap for Analysts and Linux Developers?

SCO +1, Novell -1 in SCO v Novell Unix-IP Feud -- Novell loses big round in Unix IP fray with SCO-Caldera

Is IBM's Irrevocable Unix License Revocable?


SCO-Caldera & the GNU/Linux Community:

Suing SCO Note:

Both IBM in its Counterclaims here and Red Hat in its independent lawsuit have asked the courts for damages for false advertising based on the Lanham Act. 15 U.S.C. 1125. Red Hat also has asked for damages under the Delaware Deceptive Trade Practices Act, 6 Del. C. 2532. IBM's Counterclaims, include a claim under N.Y. Gen. Bus. Law Section 349 for unfair and deceptive trade practices. Most if not all states have similar laws under which individuals and organizations can file civil lawsuits.

Discussion

That should give you a pretty good hang for what IBM has to say about:

  • the Linux kernel and GNU/Linux code,
  • the issues regarding that code that IBM now has made a part of this SCO-Caldera v IBM lawsuit, and
  • the licensing of Linux kernel and GNU/Linux operating system code copyright rights through the GNU GPL.

It also should give you a pretty good feel for IBM's breach of the GPL counterclaim too.

The breach of the GPL counterclaim, the Sixth Counterclaim, does not directly claim copyright infringement. Nor does IBM ask the court for relief under the Copyright Act.

However, IBM's GPL-based counterclaim is based upon SCO infringing upon the exclusive rights of the copyright owners of the Linux kernel and GNU/Linux code. The copyright owners of the Linux kernel and GNU/Linux code licensed their copyrighted code under the GPL.

According to IBM's Sixth Counterclaim allegations, SCO has engaged in conduct pursuant to the Linux kernel and GNU/Linux code that involves exclusive rights of copyright owners protected by the U.S. Copyright Act. The GPL provides a broad scope of permissions for public use at no charge to the public. IBM alleges that, nevertheless, SCO has violated the scope, terms, and conditions of the GPL in respect to the Linux kernel and GNU/Linux code.

However, rather than proceed under the U.S. Copyright Act, IBM has cloaked what amount to copyright infringement claims under the shroud of a breach of the GPL contract claim. It's a very interesting way of counterattacking SCO regarding its attack upon the Linux kernel developers, the GNU/Linux developers, GNU/Linux distributors, GNU/Linux users, and so forth.

It appears that SCO's defense to IBM's Sixth Counterclaim, if it has one, will have to be one that shows either that SCO owns the copyrights to the Linux Kernel and the GNU/Linux operating system and/or that SCO's actions were conducted within the scope of the applicable licenses -- in this case, the GNU GPL. These are typical copyright infringement claim defenses.

However, so far SCO-Caldera has been unable to make a convincing showing to qualified analysts that there is any unauthorized SCO-owned, SCO-copyrighted Unix code in the official kernel.org Linux kernel or the GNU/Linux operating system.

The question of whether SCO's actions were conducted within the scope of the applicable licenses is more in the nature of a legal question for the trier of law, the trial court judge in the SCO-Caldera v IBM lawsuit, to decide. Our guess based on the applicable facts plus the applicable licenses, contracts, letters, agreements and so forth that publicly surfaced to date is the trial court judge will not give his blessings to SCO-Caldera's legal conclusions.

Tom Carey is correct in saying that IBM's Sixth Counterclaim "is a breach of contract claim." Nevertheless, it amounts to copyright infringement claims shrouded under breach of the GPL contract -- for all intents and purposes making IBM's Sixth Counterclaim both a breach of contract claim and a copyright infringement claim.

Conclusions

IBM's second attempt to answer SCO's charges, Defendant IBM' s Answer to the Amended Complaint and Counterclaim-Plaintiff IBM's Counterclaims Against SCO, is a marked improvement of its earlier Answer to SCO's original Complaint.

More importantly, in an excellent implementation of the warrior's creed that the best defense is a good offense, IBM has mounted a very strong counter-attack against SCO. IBM's legal team has laid out a strong set of counterclaims. Much if not all the SCO-McBride FUD (fear, uncertainty, doubt) might now be one heck of a backfire for SCO and McBride.

SCO is starting to find itself on the verge of being inundated by lawsuits against it. The Germans have successfully used legal actions to stop SCO-McBride FUD cold in Germany. Red Hat sued SCO last week. Now IBM's Counterclaims are in effect another lawsuit against SCO.

What goes around comes around.

IBM's Sixth Counterclaim regarding Linux kernel and GNU/Linux operating system copyright issues and SCO's breach of the GNU-GPL is very strong and very persuasive. So much so that anyone or any organization that succumbs to SCO's unfounded demands to purchase a SCO-Caldera UnixWare license in order to use the GNU/Linux operating system likely is foolishly wasting money.

The facts laid out regarding SCO-Caldera's demands that GNU/Linux users purchase SCO-Caldera UnixWare licenses in order to run the GNU/Linux operating system are more than sufficient for most if not all Attorneys General of the 50 United States to file the appropriate civil and criminal unfair or deceptive trade practices, consumer fraud, false advertising, barratry, and other such charges against SCO-Caldera, its CEO Darl McBride, and other corporate officers. (Please see the Suing SCO Note in the sidebar.)

There are at least two reasons for such a conclusion. First is that as alleged in IBM's Counterclaims, there is little, if any, doubt that SCO-Caldera and its CEO Darl McBride have been promoting and publicizing their claims that GNU/Linux users are infringing on SCO intellectual property (IP) and that SCO-Caldera will enforce its IP rights against GNU/Linux users -- including infringement lawsuits.

The second reason is that as alleged in IBM's Counterclaims, SCO-Caldera has no enforceable IP interests in the Linux kernel or the GNU/Linux operating system. SCO-Caldera and McBride know this. Therefore they likely are engaging in trade libel, unfair or deceptive trade practices, consumer fraud, false advertising, barratry, and other such prohibited and actionable conduct.

Perhaps SCO and Darl McBride can back up their claims. But so far they have not done so.


Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.


Resources

MozillaQuest Magazine has a 22-KB zipped text-version of the entire, 45-page IBM Answer and Counterclaim. You can download it from the Resources section on page 2 of our initial IBM Answer and Counterclaim story.

Article Index

Overview

Tom Carey and MozillaQuest Magazine Discuss IBM's Counterclaims

The Ten IBM Counterclaims

IBM's Background Allegations of Facts

IBM's Facts Are Correct

IBM's Sixth Counterclaim, Breach of the GNU General Public License

Discussion

Conclusions

Resources

Thomas C. Carey


UNIX is a registered trademark of The Open Group in the United States and other countries


GNU GPL (General Public License)

The GNU Project


SCO original Complaint

SCO Amended Complaint


Complaint Exhibit A - IBM Software Agreement

Complaint Exhibit B - IBM Sublicense Agreement

Complaint Exhibit C and 1985 Side Letter

Complaint Exhibit D and Amendment X

Complaint Exhibit E - 6 March 2003 Letter

Complaint Exhibit F - Sequent Software Agreement

Complaint Exhibit G - Sequent Sublicense Agreement


SCO 21 July 2003 press conference (MP3 5.7 -MB)

(From TWikIWeThey)


IBM Answer to Orginal Complaint


Related MozillaQuest Articles


SCO-Caldera v IBM:


SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip

About the "Hey SCO, sue me" Petition


Caldera OpenLinux 3.1.1 Available

Caldera OpenLinux Workstation 3.1 -- A First Look


UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part I

UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part II

SCO's Darl McBride and MozillaQuest Magazine's Mike Angelo Discuss Caldera Linux and LSB

Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification


Linux Makes a Great Gift

Don't Forget the Books

LinuxWorld in New York City -- 21-24 January 2003


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