Posted on 08/08/2003 12:14:46 PM PDT by NotQuiteCricket
IBM went on the offensive Thursday when it added a countersuit against the SCO Group to the multibillion-dollar legal battle between the companies.
The countersuit alleges, among other things, that SCO Group has violated the GNU General Public License, under which it accepted Linux contributions and distributed the open-source operating system. The suit also alleges that SCO Group doesn't have the right to revoke IBM's Unix license--an allegation backed by Novell, the former owner of the Unix System V source code that sold IBM its license.
IBM is also attempting to turn the tables on SCO Group by alleging that SCO has directly infringed on four IBM patents related to SCO's UnixWare, Open Server, SCO Manager, and Reliant HA clustering software products.
In a letter issued Thursday, Bob Samson, IBM's VP of systems sales, wrote to his sales force that "We continue to vigorously defend ourselves. And we see similar resolve across the industry with regard to Linux, just as it has supported important, sometimes disruptive, efforts like TCP/IP and the Internet." Samson also wrote that IBM sees "no merit in SCO's claims and no supporting facts."
IBM is seeking unspecified compensatory and punitive damages as well as an injunction to block SCO Group from "misrepresenting its rights" to Unix and from continuing to use IBM patents without permission, Samson wrote.
According to SCO Group, "the core issue is about the value of intellectual property in an Internet age. In a seemingly 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."
SCO Group reiterated that it intends to "vigorously" defend its intellectual property rights against Red Hat Inc. and IBM, and that it will continue to require customers to license Linux implementations as a condition of further use.
SCO Group claims that its licensed Unix source code was used to improve Linux without any compensation to SCO. It also claims that Unix has been used to accelerate the development Linux in two key ways--line-by-line copying of Unix System V source code into the Linux kernel and the copying of derivative Unix code that enables multiprocessing capabilities.
In May, SCO Group send letters out to 1,500 companies worldwide, warning them that using Linux might interfere with SCO's Unix intellectual property. The following month, SCO Group terminated IBM's right to use or distribute any software that's based upon Unix System V. SCO Group said at the time that it was exercising the right of termination granted under the original 1985 Unix Software and Sublicensing Agreements between IBM and AT&T, the original owner of Unix.
Legal analysts agree that it was only a matter of time before IBM used its vast resources to attack SCO Group. "I'm a little surprised it has taken as long as it has," says Thomas Carey, a partner with Boston law firm Bromberg & Sunstein LLP. "IBM has a huge patent portfolio, which could present problems for SCO. If IBM wanted to enforce its patents aggressively, it could cause a lot of problems for a lot of companies."
IBM and other companies that sell Linux and open-source software have been criticized of late for not protecting their customers from suits such as the one SCO Group brought against IBM in March, Carey says. "The average business should find IBM's countersuit tremendously reassuring."
SCO Group's claims that IBM and other Unix licensees have leaked SCO's copyrighted Unix System V source code into the Linux kernel, starting with version 2.4, have neither been proved nor disproved. Either way, SCO Group's actions don't sit well with the IT community, Carey says.
"If SCO's allegations are true, they're in a difficult position of having to rain on everyone's parade," he says, adding that SCO's most critical mistake could turn out to be its decision to remedy the problem through lawsuits and licensing schemes rather than "giving the Linux community the opportunity to fix the code."
From Yesterday.
Well. I am a little bit embarrassed not having foreseen the causes of action that IBM might bring against SCO. Oh, not the patent claims. I am not surprised by them and I would assume that if IBM put their boys to the task at least 4 IBM patents would show up in the rack. I do believe that IBM files more patents than just about anyone. And that probably includes software patents.
But, the issue I missed was that SCO is acting in violation of the GPL. And, of course since SCO sold and distributed software with the GPL that is important.
However, first you have to realize whether the GPL violations are being as a defense by IBM against charges that it, IBM violated the contract with Novel (and SCO), violated SCO's rights as to trade secrets or rather as an offensive or affirmative defense. Or, most interestedly whether SCO has violated the GPL and has as result violated other laws such as unfair competition, etc. It may be important.
IBM is not liable for what "Linux" may or may not contain except as a contributory infringer. Unless, of course, SCO can prove that IBM did what they claim. But, code showing up in Linux that was derived or copied from Unix is not enough proof. It is not hard to imagine that being the case. But, as has been discussed here before, it could have gone either way. The true source could have been BSD. Or, as may be the case, even if the code got into Linux via IBM employees, they may not have done so as part of their work for IBM. If an IBM employee runs over a child in their neighborhood, IBM is not liable. It may be a very unfortunate situation. But, again just because an IBM employee did it, does not mean IBM is liable. And, to date, we do not have any evidence of where the so-called infringing code is much less who did it. And, "who did it" is very important. Whether anyone did it is likewise important. And, we see no evidence of that either.
In contrast, we know that SCO sent the letters to 1,500 Linux customers threatening them with legal action if they did not pay money to SCO. SCO was stupid enough to use their own stationery, right? Well. Of course, how else would the customer know where to send the money? (At least organized crime is more discreet. They say they will be by to collect the cash. No checks.)
And, now we find out that SCO has "tainted" software too. And, I have to admit that IBM pointing out the patents SCO has violated is a lot more fair than the crap-o-la dished by SCO. Their lawyers are idiots.
Right now, every Linux customer that received a letter from SCO could file a law suit against SCO. And what would that law suit be based on? Well. If IBM can sue SCO because SCO has violated the terms of the GPL, it is very likely that individual customers could also file claims against SCO on the same basis. Now, there is slight problem with that kind of law suit. Clearly Caldera Linux customers have a valid claim. They paid money to SCO, got software under the GPL and now SCO says you have to pay more money or be sued. Not exactly the way to endear your customers. But extortion does work. But what if you are not a Caldera Linux customer? Well. You might be a SuSE, Conectiva or TurboLinux customer and since they are each members of the UnitedLinux group (a fact that no doubt SCO will also suggest is not reality), you may have very well relied upon not only the GPL but also the UnitedLinux group (which includes SCO) when you committed to buying and using the Linux distribution.
Even more importantly than simply relying upon the vendor, you may have relied upon the direct benefits of buying a GPL'd product. And, what are those? Well. Having several alternative sources for support would be one. Being able to support the software yourself since it is open source, is another. And, almost as important as any of these, being able to contribute back any contributions you may have without being extorted by some other a**h**** is another.
Which is most important? Well. It may differ between customers. But, intelligent organizations generally know why they pick one technology over another. Or, as in this case, why they pick one license over another.
And, even if those customers did not buy directly from Caldera (SCO), their rights have been infringed by SCO's illegal conduct.
One of the most interesting legal issues that these cases bring out is whether a Red Hat customer who accepts the GPL may have a cause of action against Caldera who also sells under the same license yet violates that agreement. And, if SCO did not try to extort money from that customer, the answer may be no. But, if they do, the legal answer may be "yes". In other words, should a GPL customer be free of extortion or IP claims from other companies distributing the same IP under the same license? No guess would be, "Yes". The court would simply conclude "why not"? You have to remember that Caldera (SCO) will be presumed by the court to know of what they are doing. And, this is true despite the stupid claims by SCO that they should not be held to the GPL because they were ignorant. You often hear the phrase that "ignorance is no excuse in the law". Well. It is true as far as what the law says. But, it should also be true as far as what the affect of the license are that you sell your products under and the very contents of the products you sell. No court is going to buy that crap from SCO. They are just not going to do it. SCO is going to be held accountable for distributing Caldera Linux under the GPL. There is no reason for doing otherwise.
If SCO can weasel out of having distributed Linux under the GPL then IBM should be able to say that they should weasel out of putting all of AIX into Linux. Two years from now they can just claim to be ignorant of what they did, right? I mean, IBM should be given the choice of simply saying "oops, we did not understand what we were doing". The judge is just going to laugh. They are going to laugh three years from now if IBM tried that kind of crap and they are going to laugh at SCO when they try it in court.
My bet is that SCO has just assumed that their case would NEVER reach the courtroom. And, that may be wrong.
The chances are much better that SCO will have an injunction issued against it forbidding it from extorting money (or even contacting) Linux customers directly until the major suit is completely resolved. That would be an appropriate injunction. And, I can assure you that IBM, Red Hat and SuSE lawyers are working that issue right now. They absolutely want to stop the extortion and the direct harm to their business via illegal means.
Again, you have to separate the IP legal issues from the practices used by SCO to be paid now. SCO has a right to sue IBM if they think they can prove their case. SCO has a right to sue Red Hat if they think they can prove their case. Or anyone else (including Linux customers) if they think they can prove their case. But, they just do not have a cause of action against Linux customers and it was stupid of them to issue threatening letters. They did not sue Red Hat, but now they get to respond. Unfortunately for SCO, their response is to Trade Libel, unfair competition, deceit, misrepresentation, etc.
I think SCO is being advised by some very dumb lawyers.
I recall a statement from SCO today that they expected a "cross complaint" from IBM. Well. That is true. I am sure they did. And, I am sure they anticipated that Red Hat and possible SuSE would also initiate their law suits.
Well, I hope SCO did get $70 million from Microsoft. Because generally lawyers bill their clients for defensive work even if they take affirmative actions on the come. And, right now, the defensive budget is going to seriously out weight their work on suing IBM for duplicating some code.
"That airnt no knife.
Now this is a knife!
But then SCO would be worthless.
Ah, I see the mistake. Now it's less than worthless.
Lawyers bill their clients for taking a leak.
I don't think SCOs lawyers or execs are stupid though, perhaps they're making one last trip to the MS ATM.
Sort of leasing the company out for a harassment-for-hire contract.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.