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IBM Adds SCO Counterclaim Charging Copyright Infringement
linuxjack55 writes "According to Yahoo! Finance, IBM has filed yet another counterclaim against SCO, this time claiming that SCO 'infringed IBM's copyrights by distributing IBM's contributions to Linux after SCO had violated its Linux license by claiming a copyright on parts of Linux.' Like it or not, it looks like the GPL is going to get a full vetting in this case. It is, however, nice to know that IBM's fire-breathing legion of IP lawyers is on the side of the GPL."
IBM has the resources to make a test case of the GPL. I'm going to be very interested to see how this turns out.
GF.
Lots of petrified grits
It is, however, nice to know that IBM's fire-breathing legion of IP lawyers is on the side of the GPL."
yesh because with all the work IBM has done with linux in the past short years they obviously have no vested interest in making money off the GPL or linux(or GNU/LINUX or SCO/GNU/LINUX, whatever you want to call it).
this trial should prove to be interesting as long as it doesn't drag out for 5 years
..nice to know that IBM's fire-breathing legion of IP lawyers is on the side of the GPL
No, IBMs lawyers are quite decidedly on the side of IBM. If IBMs linux experiment fails, all bets are off.
I still remember when IBM was the big evil. I remember the geeks cheering when MSFT crushed OS/2 to secure Windows' place on the desktop. Hooray! No more IBM monopoly!
That is, of course, not to say that I dont find every bit of minutia about this nerd hissy fit absofuckinglutely enthralling.
I don't need no instructions to know how to rock!!!!
It is, however, nice to know that IBM's fire-breathing legion of IP lawyers is on the side of the GPL.
The company that is known for having more patents (hardware and software) than any other company in the world is now the poster child for and the paladin of those who believe such patents to be immoral in the first place.
Satire is dead! Reality is so much weirder.
--GrouchoMarx
Card-carrying member of the EFF, FSF, and ACLU. Are you?
Fuck Slashdot
They can't make IBM dismiss the counterclaim. Unless they go bankrupt or something, this is probably going to court - I think IBM doesn't want this sort of thing to happen again, and it appears SCO will be made an example/bitch.
-Looking for a job as a materials chemist or multivariat
IBM's fire-breathing legion of IP lawyers is on the side of the GPL.
(1) It's IBM that's on the side of the GPL. It's fire-breath lawyers are on the side of whoever pays them.
(2) IBM is on the side of the GPL because they don't have much of a choice : they don't really have an OS of their own, and they had already invested millions in promoting Linux before this whole SCO idiocy.
This said, if IBM's lawyers reckon the GPL is a tool worth using in court, then you can be pretty sure it's a solid license, which is good news for the rest of us (read: IBM's money has paid for a very thorough review of the GPL for the rest of us. Thanks guys!)
"A door is what a dog is perpetually on the wrong side of" - Ogden Nash
Ouch, the graph shows that SCO dropped ~15% since that news broke.
Yeah, they're only up about 1000% on the year! Seriously, though, stock price isn't a great indicator of SCO's fortunes - there is so little stock available to trade (7.5 million float, over 60% held by insiders and institutions) that it doesn't take much wind to blow this thing up or down.
Stop by my site where I write about ERP systems & more
IBM: "Free software wants to be free."
HP: "Pay us because free software is scary."
Do they understnd the GPL at all?
Do they understand the concept of ownership at all?
Are they really claiming that just beacuse a program runs in Linux that it is automatically their property?
By distributing the source code or a binary version of the kernel you would be requiring the person who received the kernel from you to pay SCO $700. That is a violation of the GPL, no code can be under the GPL that requires a license fee to be paid. By distributing code under the GPL you forego your rights to charge a license fee for your IP. Hence if SCO knowingly distributed their Unix IP under the GPL they gave up their right to charge for it. the fact that they've been distributing the kernel since after they filed the lawsuit means that they are knowingly distributing their IP under the GPL, and hence cannot charge a fee for it. Doing so violates the GPL and allows *every* contributor to the kernel who owns a copyright in the kernel to sue them for violation of the license.
At some point the GPL was going to have to be tested in a court of law. Thank you SCO for what is sure to be a slam dunk. Congratulations to those who are now successfully shorting SCOX.
If there were any company in the world you could pick to be the precedent-setting defender of the GPL who would it be? IBM would be my dream pick. This is very good news.
As another poster pointed out, SCO no longer has a choice. They cannot simply wave a magic wand and make IBM's countersuit disappear if IBM isn't interested in an out of court solution.
They may have been bluffing, but IBM has called them on it.
Oh, but they may not have a choice with all of the counter suits that are going to come their way.
They can't just dismiss IBM's lawsuit and every single person who has contributed code in the version that SCO is distributing has valid grounds for a lawsuit. SCO could conceivably face hundreds of lawsuits. They will not be able to unilaterally dismiss all of the lawsuits and I doubt that their pockets are deep enough to settle out of court with everyone who will hopefully file a copyright infringement lawsuit.
I think SCO is toast.
The race isn't always to the swift... but that's the way to bet!
This is either slightly confused or slightly confusing, but essentially true. Let me reword it a bit and see if we agree.
:-)
Hence if SCO knowingly distributed their Unix IP under the GPL they gave up their right to charge for it. the fact that they've been distributing the kernel since after they filed the lawsuit means that they are knowingly distributing their IP under the GPL,
No, their claim is that they're distributing their IP under their own license, and since their IP is entangled with the Linux kernel they're also distributing the Linux kernel under the GPL with some added restrictions.
THAT is where they get in trouble. Nobody cares how they license their own IP, or whether it's mixed in with Linux; the problem here comes when they slap their restrictions on other people's code in violation of the other people's licenses.
the fact that they've been distributing the kernel since after they filed the lawsuit means that they are knowingly distributing their IP under the GPL, and hence cannot charge a fee for it.
But they're not distributing it under the GPL -- it's under the GPL plus their own license. Again, the error wasn't distributing their *own* code; they have every right to do that, even under an impossible license. The error is distributing other people's code in violation of copyright.
Of course, they can fix this in a heartbeat -- just take their FTP server down.
Doing so violates the GPL and allows *every* contributor to the kernel who owns a copyright in the kernel to sue them for violation of the license.
And now, we're back in agreement.
Of course, the judgement would be for pennies; most of the people involved lost nothing due to SCO's infringement. The loss is due to other things, such as their libels.
-Billy
"It is, however, nice to know that IBM's fire-breathing legion of IP lawyers is on the side of the GPL."
No, they are not on the side of the GPL; they are on IBM's side. It just so happens that, currently, that IBM and the GPL have a common interest.
And never forget the lesson SCO has taught us: the business that is your friend today (IBM) can be your enemy in the future (SCO/Caldera).
"If it were the case that Linux has SCO IP in the kernel, then IBM's case would have no merit."
No, no, no. You miss the point. IBM has contributed a lot of it's own code that SCO could not possibly have claim over. These are two different issues. Further, everyone who has contributed any code that SCO distributed has had their copyright violated by SCO. And I'm not just talking about the kernel. Any applications that are GPL'd that SCO distributed with its distro. as well.
SCO = TOAST
The race isn't always to the swift... but that's the way to bet!
It is, however, nice to know that IBM's fire-breathing legion of IP lawyers is on the side of the GPL.
I hate to be the cynic (Actually, I really don't mind at all.), but IBM's legion of IP lawyers on the side of IBM, which only just happens to have embraced the GPL. If IBM wasn't pushing Linux, their lawyers wouldn't give the GPL a moment's thought.
SiO2
No, they don't. But IBM does. There's a great quote from IBM later in the article:
That's a quote from somebody who genuinely understands the power of Free/Open Source software.
It's pretty clear that IBM's lawyers get the legal aspects of the GPL, too. I remember hearing a story about IBM when they were first considering going into Free/Open Source software. IBM, being IBM, didn't want to get involved without understanding the legal issues, so they asked their lawyers to look over the GPL. The lawyers came back with the opinion that it was a well written legal document. Their business background meant that they didn't understand why anyone would want to release their code under the GPL, but they agreed that it actually would achieve its goal of keeping the source open. IBM never would have used GPLed software if they weren't quite confident that the license was sound.
There's no point in questioning authority if you aren't going to listen to the answers.
He's a monster, but sometimes he helps us fight off other monsters. We can cheer as long as he's saving Tokyo. Once that's done, we just have to make sure he goes back into the ocean.
my point was that ibm has no reason whatsoever to settle with sco, sco can't just decide by itself that it wants to settle.
(ibm doesn't benefit from measly pennies from possible settlement with sco, where it can lose potentially much credibility if they let it off the hook, and they employ those lawyers anyways since they need them all the time just not as mercs for hire)
world was created 5 seconds before this post as it is.
Despite all the ranting about the possible "questionable" validity of the GPL, a lot of folks seem to forget one thing: the GPL was conceived by Richard Stallman but the actual license text was written by and reviewed by lawyers! It isn't some individual attempting to produce a quasi-legal sounding license, it is a legally binding agreement and had to pass some pretty serious legal muster before it could be released and used.
The mere fact that in the entire time the GPL has existed, NO ONE has dared to try and challenge it. There's been lots of "analysis", but there has been no one to ever try to challenge the GPL even on principle in a court of law (unlike the DMCA, for example). A few companies got caught violating the terms of the GPL (i.e. incorporating GPL'd code into proprietary products) and all of them had the chance to fight the GPL but didn't! They all settled, rewrote and backed off. How is SCO any different under the circumstances?
Remember, SCO first has to prove that any code that IBM wrote independently is in fact a derivative work of the SysV codebase or produce the "line for line" copied code that they claim IBM dropped into the kernel. In past GPL violations, this is exactly what the violators did with GPL'd code: dropped it as-is into their products. Regardless of IBM's motives or aims, does anyone seriously believe that a company like IBM who has an extremely long history of legal wrangling over patents, copyrights, anti-trust, etc, would be that stupid? Especially considering they have a clear policy and process on how code developed by IBM can migrate into the kernel. IBM is also required by the kernel maintainers to waive any and all current or future patent claims on any code they contribute.
So yes, IBM is being friendly now. Even 5-10 years down the road if they changed their tune, they would still be unable to try and make claims against Linux because of their previous agreements to waive their rights to patent infringement. The best they could do is pursue copyright infringement claims againt a rogue developer or third party.
A couple of years ago Enron stock was performing extremely well also... when the public found at that the company was based on lies, the stock value fell immediately to near zero. The only difference between that case and this one is that in this one, the public hasn't figured it out yet.
I don't care if it's 90,000 hectares. That lake was not my doing.
120 character sigs suck. Make it 250.
Actually, my understanding is that nothing in the GPL prevents you from having royalty generating IP in a GPL covered product.
The GPL says that when you distribute the code via the GPL, you can not require additional restrictions along with the GPL in that distribution. (I'm not talking linux distributions (eg. Suse, Slackware), but the more general give something to someone else)
This does not prevent you from also incorporating your code in a product that you license/sell/whatever so long as it is only your code and not anyone elses GPL'd code in your product.
I think he's wrong, but I get his point, which is consistent with SCOX's stance:
1. SCOX owns Unix.
2. SCOX owns all works derivative of Unix.
3. Linux is a Unix derivative.
4. Therefore, SCOX owns Linux and can distribute/charge for it at will.
That you have copyrighted a contribution to Linux doesn't matter, since it is a derivative work. SCOX truly believes that all your base are belong to them and, as someone else has pointed out, IBM's explicit injection of copyright issues into the countersuit forces SCOX to put/shut up in court, rather than on PRNewswire.
In a sense, SCOX must do this for the sake of credibility with their installed base and the stock market. I predict we'll see more outrages like these in the future, maybe along the lines of "revoking" other distros' "licenses" to distribute Linux.
The funny thing is that SCO actually did it themselves this time. It's here at their IBM lawsuit web page (which they had't updated since June).
Enjoy!
http://www.tuxrocks.com/
Travolta's character in "A Civil Action," Jan Schlichtmann, makes a good observation: If a case ever makes it to court, both sides have lost.
IBM is playing this beautifully from many points of view: They are moving slowly and quietly.
This gives them the appearance of deliberate and thoughtful action. Because there's a good month's worth of rumbling about possible attacks IBM can make before IBM makes them, their claims are never surprising. But because the delay between when the ideas seem to be part of the meme and when IBM makes their action is so long, and because IBM says so very precious little about the suit publicly, the action feels very sudden. And last, the slow movement causes one to think that their case has been very thoroughly researched long before the axe ever falls.
As a result, these counterclaims are absolutely devastating to SCO. Not just because of what they state, but mostly because of how they are stated.
This action serves two goals. One, when it comes to settlement offers, each counterclaim is weakening SCO's ability to make demands with settlement offers. I think that with the first counterclaim, SCO was able to demand much less than at first. I think that with this one, SCO may want to try to make the whole thing go away.
Two -- if SCO is stubborn enough to allow this to go to court, IBM is covering its bases.
IBM has really impressed me lately with their management, which I can summarize with one principle I learned from Dale Carnegie: "Cooperate with the inevitable." They saw Linux's promise and also saw that in the long term, no one would be able to compete with Free, so they began working on ways to make money with that inevitability. And in the short run their handling of SCO has been similar: They have covered all of their bases with this lawsuit.
Contrast this with the RIAA member corporations. Pay specific attention to the corporations' current profitability, stock movement (relative to S&P 500 or any major index), and future prospects. Double-space your answer and turn in on Monday. This assignment represents 33 1/3% of your grade for this class.
We must make a distinction here between their legal claims and their press release claims.
Their press release claims have no legal standing ( although they may open them up to various legal complaints. See Red Hat vs. SCO). These are just FUD.Some of them though give hints to what their actual legal arguments must be if it comes to that.
Argument of in my original post does not rely on press release claims. Copyright claims are legal claims.If they release a distro under the GPL that is a legal claim of assignment of rights. If the GPL is a valid license then they are bound by its terms for every line of code in the distro.
If they release a distro (c)SCO they are making legal claim to ownership of the distro and all the code contained therein.
Their filing against IBM is an actual legal claim. This claim makes a fairly tortuous definition of derivitive works that is highly unlikely to prevail.
IBM has also pointed out that since SCO distributed the code themselves under the GPL they have released it for use under the GPL, so any other legal argument is moot.
SCO has responded in a press release ( but this must be their legal argument if it ever goes to court, because there is simply no other counter against IBM's defense here) that the entire GPL is invalid and thus all works released under the GPL either A)belong to them as derivitive works, or B) have passed into the public domain so they are able to use them as they please.
This argument relies on A) that their definition of a derivative work is correct, which it isn't, AND B) that if the GPL is invalid all GPLed works inherently become public domain, which they don't.I'd hazard a guess here that RMS will fight this one tooth and nail. He owns what he wrote.
They also have to be very careful about that argument since it would also likely result in a ruling that all UNIX code up to 32V is public domain as well. A judicial ruling has already been made that such is likely to be the case if anyone wants to push the issue.
So SCO's claims against IBM inherently attack the GPL, by necessity, or their legal claims fail prima facie.
This is very important. They must destroy the GPL itself to prevail over IBM (because SCO having released the claimed infringing code under the GPL is an affirmative prima facie defense). This effects every piece of GPLed code in existence.
Any way you cut it this is not simply an IBM/SCO issue.
Keep your stick on the ice, because we're all in this together now. Like it or not.
KFG
Probably one of the coolest things out of this specific turn of events is that it appears that IBM really *gets it* when it comes to Free/Open Source Software. On the other hand, I don't have any delusions that there is some altruistic motive on IBM's part to this. IBM sells service and support. With closed software, there is only so much you can do beyond installation and upgrades. I'm sure that IBM sees the ability of the customer to customize the system as a continuing revenue stream since it means the customer will always need someone with IBM's expertise to come in and fix things whenever something changes and their custom stuff suddenly is broken.
IBM is going to bat for Free/Open Source because they see Free/Open Source software as a way to make money. Nothing wrong with that and bottom feeders like SCO are why open source needs companies like IBM. It would have been somewhat ugly if Darl & company hadn't gotten greedy and gone for all the marbles instead of just quietly infringing on GPLed code.
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
Actually, in an amusing twist of history, he was IBMs lead lawyer in their successful defense of the anti-trust trust case brought against them (by the government) in the 1980s.
He most certainly won that one, as we still have Big Blue, and not a bunch of baby blues running around.
Except that that's not even what SCO's claiming. SCO's claiming that IBM copyrighted a function and added it to Linux, and that because IBM also licensed SCO to use that function that IBM no longer has any right to let anyone else use that function without SCO being paid.
Grocklaw has Two different articles on the IBM countersuit. The first one has a pointer to the counterclaim pdf (apparently on the SCO site). The second describes what they've done differently.
IBM is definitely seeking (an) injunction(s) against SCO. Reading the new counterclaim, I don't see any signs that they're seeking a preliminary injunction. I don't know that this necessarily precludes their filing for a preliminary injunction. The motion for a preliminary injunction would be a separate act.
Free Software: Like love, it grows best when given away.