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!