SCO Declares Total War on the GPL -- Says GPL Is Not Enforceable

GROKLAW ^ | 27 October 2003 | GROKLAW

[ShadowAce]

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

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.

[ShadowAce]

Tech Ping

[shadowman99]

Teenagers are supposed to confuse copyright and patent law. Lawyers are not.

SCO will get their *ss handed to them in court if they continue this line of arguement.

[justlurking]

If you are interested in the origins and growth of Linux, I recommend a DVD entitled Revolution OS.

It's a documentary with interviews of a number of prominent people in the open source world. You can see everything from the laid-back manner of Linux Torvalds to the pedantic nature of Richard Stallman. Eric Raymond also tells a hilarious story about his chance encounter with a Microsoft exec in an elevator.

If you are a NetFlix member, you can rent it here.

[Nick Danger]

I wonder how the judge is going to react to this latest filing by SCO. It is quite obviously intended as a press relations document, prepared with little regard for how ludicrous it is as a submission to a court.

It almost mocks the court, by turning the proceeding into a silly circus of meritless, frivolous arguments.

In their own lawsuit against IBM, SCO seems bound and determined not to state with any specificity what it is that IBM did that would entitle them to any sort of relief. It's always vague generalities about "They done us wrong!" but SCO seems not just unwilling, but maliciously so, to name any particular thing. I doubt they're going to get another round of that without the judge dismissing their case in its entirety, for lack of any specific complaint.

This answer to the countersuit is even sillier behavior. They ship substantial quantities of GPL'd software as part of their own products. Should they succeed in having the GPL declared "invalid," then all that software they are distributing becomes unlicensed copyrighted goods, and they are infringing. It is only the GPL that gives them any right to use it. Absent that, it's back to default copyright, which is "all rights reserved."

Actually, their statements here about the GPL are part of the press noise they have included in this so-called legal submission. It's hard to see how they could have the GPL invalidated without invalidating software licensing in general, because all software licenses are the same basic idea: copyright owner grants you certain rights subject to these conditions.

This is certainly one that is going to test the judge's patience. Once he reads this, it will be apparent to him that SCO is not taking any of these proceedings seriously. They mock the court with nonsense in every filing they make now. It's a sideshow to them, a prop they are using to lend credence to their equally silly press relations campaign.

[Petronski]

More like "SCO Reaches Terminal Velocity On Fiery Reentry."

[Petronski]

SCO DeathSpiralWatch bump

[MarkL]

"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."

This is my favorite part of this entire posting... What they're saying is "if it does what UNIX does, and it looks like UNIX, then it's an unauthorized version of UNIX." Sort of like Ford saying that since they were the first mass produced American car, and all modern American cars look pretty much like Fords, and they pretty much do the same things as Fords, and pretty much work the same way as Fords, then all those GM cars are actually unauthorized Fords, and Ford wants GM to stop making cars, "those copycats!"

Mark

[MarkL]

SCO DeathSpiralWatch bump

This really does make me sad... SCO used to have some terrific products... SCO Xenix was awesome in it's day, and although most UNIX purists thought that SCO UNIX (System V) was something of a horrible thing, since it really wasn't all that SYS V compliant, I always thought that they did a pretty good job, given that SCO's software was more a derivative of Version 6 and 7 UNIX, than System III.

Now, a pox on the SCO corporate officers and lawyers!

Mark

[Nick Danger]

This really does make me sad... SCO used to have some terrific products...

It need not make you sad. These aren't the same guys. These are some clowns from Utah who bought the UNIXware business and the name "SCO" from the Santa Cruz Operation. The Santa Cruz Operation is still there, except now it's called Tarantella.

[Coral Snake]

Have any of you guys noticed that the three major tech thread trolls (Golden Eagle, Bush2000, TheEngineer) have not been around even on the tech threads lately. This has been especially so since the Terri Schiavo case has become popular on FR. (Some of the tech thread geeks like HiTech RedNeck and The Red Zone are mainly on the Terri Schiavo threads now but I haven't seen the three aforementioned trolls anywhere on FR since that case became popular here under the leadership of FReepers MarMema and pollywog. I wonder where these trolls could be now.) Personally I say good riddence. The tech threads are probably going to be more interesting now that we can talk about Linux v SCO and Microsoft without their interferance.
As for Linux I'm recomending that you guys take a look at Fedora 1.0 when it comes out. I've seen some screen shots of the beta and it looks to be a really good desktop linux when it reached 1.0 status.

[Golden Eagle]

More annonymous blog information posted as factual news on FR. How about some credible news journalists for once. These Linux fanboy sites which are always lacking any true professional analysis are quite tiresome.

[ShadowAce]

More annonymous blog information posted...

Pamela Jones is not anonymous. She is a paralegal who specializes in research and interpretation of data. She also has nothing to do with Linux other than these articles, so you cannot describe her as a fanatic, commie, or whatever your favorite put-down is these days.

[steve-b]

Translation: Somebody explained to Darl & Co. that 1)the can of worms they've opened is going to result in the discovery of at least one theft of GPL software by SCO, and 2)the result of this discovery might strip Darl & Co. of the gains of their pump-n-dump scam, even if they otherwise get away with it.

[TheEngineer]

The tech threads are probably going to be more interesting now that we can talk about Linux v SCO and Microsoft resemble a San Francisco Bath House without their interferance.

Fixed it for you.

[TheEngineer]

More annonymous blog information posted as factual news on FR. How about some credible news journalists for once. These Linux fanboy sites which are always lacking any true professional analysis are quite tiresome.

Absolutely agree. Posting from Groklaw.net is about four notches below a vanity.

[Coral Snake]

I see that the Golden Budgie and TheEngineer are back on the tech threads. On my next trip back to the Terri Schiavo threads I'll see if HiTech RedNeck can make a return trip here. I remember that he was a pretty good abuse button jocky when I was pushing this (censored) for these idiots.

[Coral Snake]

You TROLLS have just been here for one day and these tech threads start sounding like a protest meeting in ITHICA!!! And I thought that Golden Budgie wimped out when BILL GATES GAVE THE FULL WINDOWS SOURCE CODE TO CHINA!!!!

[HiTech RedNeck]

resemble a San Francisco Bath House

Wash that mind out with soap.

[Coral Snake]

By the way if you read my latest tag line you will find out that like HiTech RedNeck and The Red Zone I am involved in a Free Republic project that is quite a bit more important than your idiocy right now.