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."

Comments

You reap what you sow.

[guacamolefoo]

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.

Re:You reap what you sow.

[Trigun]

IBM does not have the resources to make a test case of the GPL. IBM has the resources to make this a slam-dunk that will make the O.J. Magic Mystery Tour look like a circus sideshow.

Right or wrong, who cares. It's going to come down to who has the most cash.

Re:You reap what you sow.

[nurb432]

I for one agree, as this is the first *real* case of the GPL/BSD type licenses, and its LONG overdue..

But, this will either solidify what we are all doing, or kill us off....

Re:You reap what you sow.

[harlows_monkeys]

Right or wrong, who cares. It's going to come down to who has the most cash

So how come most of the trouble with software patents has come from small companies or even individuals with almost no money taking on big companies?

According to your theory, Microsoft should have blown Eolas out of the water right from the start.

Re:You reap what you sow.

[Sevn]

Amen brutha. No matter what happens, it's going to be a hoot. Damn. I hope some smart bastard gets the movie rights. It would make an excellent mini-series starring:

John Bobbet as Daryl McBride

Giant Killer Robots With Nuclear Bombs For Balls as the IBM legal team

Wilford Brimley as the caring and passionate Judge

The cast of Friends as disgruntled Linux users

Ryan Phillipe as the young Eric S Raymond during a flashback scene

That chick from voyager as the evil SCO lawyer

Danny Bonaduce as the hotdog vendor out on the street who has keen insight and good advice.

And a cameo by Sean Connery as the old prison guard that comforts Daryl after his first pooper invasion in the prison scene at the end of the movie.

Re:You reap what you sow.

[AJWM]

I read and re-read it and I can't make heads or tails out of what they are saying.

Essentially, IBM is invoking section 4 of the GPL, which reads in part:

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

SCO has done a number of things that certainly violate the spirit and probably the letter of the GPL (extra licensing, etc. -- and if the rumors are true, they've backported Linux code into their proprietary Unixes). Under section 4, this terminates SCO's rights to distribute Linux. IBM has copyright on its contributions to Linux, therefore SCO has been distributing IBM's (and ever other Linux contributer's) code without a license. That's copyright infringement.

Re:You reap what you sow.

[donutz]

'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.'

I read and re-read it and I can't make heads or tails out of what they are saying. Reminds me of this thread. Sure glad they aren't after me.

SCO disagreed with the GPL (and declared it void). That means they aren't allowed the benefits it provides (redistribution). They continued (probably still on their FTP site) to distribute Linux.

IBM has the copyright to part of the Linux source code. Their work is being distributed counter to the terms they offer it under (the GPL). IBM sues SCO under copyright law for infringement.

Re:You reap what you sow.

[dmaxwell]

I read and re-read it and I can't make heads or tails out of what they are saying. Reminds me of this thread. Sure glad they aren't after me.

I can help you out with that. SCO is still distributing the Linux kernel sources from their ftp site. That kernel contains work contributed by IBM. IBM still has the copyright on that work.
The GPL says that if you can't meet all of the obligations of the license then you can't distribute a covered work at all.

SCO would not have been as open to this if they had ceased all distribution of Linux as soon as they started this foofraw. As it is, they left an opening for IBM and everyone who holds copyright on various components of the kernel to sue them. RedHat is nailing them for GPL violation as well.

Re:You reap what you sow.

[kilgortrout]

Both these companies have more than enough cash to finance this litigation for a long time. No one's about to run out of money here. If nothing else, MS and Sun will keep SCO afloat. After a certain point, having more money than your opponent is no advantage. That point has been more than reached here.

Re:You reap what you sow.

[swillden]

After a certain point, having more money than your opponent is no advantage.

However, having more *sense* than your opponent is always good, and actually having a *case* is very, very valuable. And I think IBM's position relative to SCO on those issues dwarfs even their relative financial advantage (which, of course, sits at around 10,000 to 1).

Re:You reap what you sow.

[sdriver]

This is not "the first *real* case of the GPL/BSD type licenses" as the two licenses are totally different. GPL is more restrictive.

With a BSD license I can take the code, modify it, and sell binaries without providing source EVER.

With the GPL I can take the source, modify it, and sell binaries. BUT I'll have to give up the source to anyone who asks for the source. I can only charge, at best, the cost of providing the source ($10 ship/handling).

Try reading the licenses sometime.

Re:You reap what you sow.

[rootofevil]

500 million falls out of [random microsfot exec]s' pocket when his wifes servant does the laundry.

Re:You reap what you sow.

[sharkey]

John Bobbet as Daryl McBride

Actually, Bobcat Goldthwait as Zed McBride sounds about right to me.

Re:You reap what you sow.

[Citizen of Earth]

So how come most of the trouble with software patents has come from small companies or even individuals with almost no money taking on big companies?

Because small companies are the actual innovative force in the technology industries and large companies simply rip them off. (Not that I think that all or even most patents are actually innovative.)

Re:You reap what you sow.

[hqm]

Microsoft wanted Eolas to win. It means they have to close their browser down to third party plugins. It was probably worth $5 billion to them
to lose that case. It means they *own* the desktop, and no one can accuse them of monopolistic practices if they close their browser up to any third party extensions.

Re:You reap what you sow.

[dfung]

If I had points, I'd mod you up... When the big MS antitrust case was running, at the very beginning, I believe MS was trying to make a very specific point about the relationship of IE to Windows. MS was saying that their HTML rendering engine was a component of Windows (much like Gecko was the rendering component of Netscape) and that IE was a thin application shell that wrapped around that engine to create the behavior of a browser like Netscape. Other Windows applications can use that rendering engine, such as their help. So they could construct help files like web pages, but the app that you see them in is a help tool, not a browser.

That architecture is different than Netscape who carried their own rendering engine along with many other components as a bundle in their app. That difference in architecture is where the rathole regarding "taking IE out of Windows" comes from - removing the shell (as the CMU prof demonstrated) is relatively trivial, but if you object to the presence of the rendering engine, then the removal of that is not only painful but breaks other parts of Windows such as help.

Of course, it doesn't help that MS was also being an ass about this all.

Netscape (actually, I think it's other plantiffs such as Sun's Java) would complain that their ability to interact with the interfaces of these internal components was disadvantageous vs. Microsoft's own access and ability to enact change in the interfaces.

The remedy to this solution would have been hard to implement I think - you have to force Microsoft to publish and commit to a set of public interfaces and functionality, make them available to all comers, and create some mechanism through which MS can't have back-door entry. In practice, quite difficult to do, especially in areas like this, subject to significant evolution.

Once again, it doesn't help that MS was being an ass about this too.

OK, now flash forward to Eolas. For competitive reasons, MS got pulled into having plug-in interfaces. Later, they took the ball and moved it beyond where Netscape had already set it. Today, those public plug-in interfaces are the way that Real audio can be a pluggable replacement to Windows Media, or that Macromedia in some future Flash will become yet another option. Again, to a lesser extent, these kinds of plug in interfaces are what allows Sun to build a pluggable JVM (although I believe this is a pretty different mechanism).

So, if MS decides to lose the EOLAS case, that pretty much gives them carte blanche to slam the doors through the existing public interfaces shut and switch back to proprietary interfaces of their own, and their own control. In Soviet Russia, you don't plug into the brower, it plugs in to you (sorry, couldn't help it)! In a post-EOLAS world, poor Microsoft can't publish an API that allows Quicktime or Flash or RealMedia to appear in a window because they can't afford the license. But that won't stop them from doing a non-infringing implementation of Windows Media will it?

I think this is definitely NOT a case where the enemy of my enemy is my friend.

Schoolyard fun.

[Rosyna]

Why does this sound like a dodgeball game with a team from Class A and a team from Class B in grade school?

Re:Schoolyard fun.

[rossz]

Naw, it's more like the chess club challenging the varsity football team. They go in thinking they'll be able to checkmate in a few moves, but suddenly find themselves in a huddle on the football field.

I have empathy for other people.

[grub]

Ouch, the graph shows that SCO dropped ~15% since that news broke.

Darl, I'll let you sleep on the couch in my basement. Note though that my cat is very fussy, you'll have to completely bury your turds in the litterbox or she'll get mad. Thanks, buddy!

Re:I have empathy for other people.

[TopShelf]

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.

Re:I have empathy for other people.

[realdpk]

On the contrary, it's the ONLY indicator of SCO's fortunes, for they have no real/actual revenue (aside from the bullshit $699 licensing).

However, it is VERY pleasing to see that it dropped so much so quickly after news broke. That means that people are still at least somewhat sane. They know there's very little propping SCOX up, and that any bad news could cause it to fall fast, so lots of people have set it to sell very quickly at even the most minor of price drops.

Someone needs to do a lawsuit flowchart

[Unknown Poltroon]

I cant keep track anymore.

SCO responds.

[eddy]

This just in.

Stowell disputed the idea that SCO could no longer distribute Linux. "We're the copyright holder for the core Unix operating system. If we want to charge someone a licensing fee for using our copyrighted software that's gone into Linux, then we have that prerogative," he said. "If we want to continue to distribute Linux to our existing customers, we can do that because we own the copyrights on that Unix software."

I'll just let that... sink in.

Re:SCO responds.

[drakaan]

Since he said it publically, and in response to IBM, does that mean it can be used in a legal argument? I thought SCO was trying to skirt the whole "copyright" issue, since they only had some odd contractual agreement. Is Darl really saying, out loud, in public, that SCO owns the copyright for some software that's in Linux?

Re:SCO responds.

[lobsterGun]

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?

Re:SCO responds.

[angst_ridden_hipster]

Keep in mind that this is the same guy who said:

"C++ is one of the properties that SCO owns today and we frequently are approached by customers who wish to license C++ from us and we do charge for that." March 4 2003

No point in trying to argue with delusionals.

Re:SCO responds.

[mike449]

Is Darl really saying, out loud, in public, that SCO owns the copyright for some software that's in Linux?
More than that. He is saying that SCO owns copyright on all Linux code. Since they do not agree with the GPL terms for Linux, they can only distribute parts of it for which they own copyright. And he says they will continue to distribute all of it.

Re:SCO responds.

[bo-eric]

The quote is taken from a mozillaquest article and the context is quite relevant.

Re:SCO responds.

[garcia]

blah blah blah and more blah.

They have ignored the GPL from the beginning (and still are).

None of their press releases have made any sense (we have tried to make sense out of them ourselves by wondering if they are trying to make money off the deal before the stock goes into deeper shit than it already is).

They are claiming that Linux is their property because it is a derivitave work of their IP.

Re:SCO responds.

[rgmoore]

Translation: All Your Code Are Belong to Us

Re:SCO responds.

[kfg]

Indeed, one wonders how SCO acquired the rights to distribute any code I may have contributed to their Linux distro (note that this is a broader field than just "Linux")when I have no contractual obligations to transfer rights to SCO.

One wonders exactly which files they claim ownership of, and even if they refuse to identify specific lines of code that they believe are theirs they should be required to at least identify the files they are charging a license fee for before they can collect any money. That's basic contract law.

"Give us some money."

"What do I get?"

"We can't tell you. Ha, ha, ha!"

Right Sparky. Blow me.

If you have written a single line of code that is being distributed in a file that SCO is charging a license fee for and are under no contractual obligation to transfer rights of derivitive works to SCO, even if they do own the core operating system code they are still violating your license on your IP.

By law derivitive works belong to the actual author.

I wonder what would happen if everyone who has contributed legitimate code under the GPL to SCO's distro were to each file a suit for violation of their license terms?

More than wonder, I highly recommend it.

If you represent yourself pro se it will cost you some time, some stationary and the filing fee.

It will cost them a lawyer to respond, for each individual case.

Make the bastards bleed from one thousand little legal cuts. Even the expense of that many band-aids and bactine will hurt.

KFG

Re:SCO responds.

[arkanes]

More than that - he's claiming, at least unless theres unquoted context there, although I can't imagine what it would be, that the alleged copyright claims they have over Linux not only exist, but are so overwhelming as to trump the copyrights of every other person who has ever contributed to Linux - including Linus himself.

Re:SCO responds.

[rgmoore]

Do they understnd the GPL at all?

No, they don't. But IBM does. There's a great quote from IBM later in the article:

"The typical approach to indemnity, and apparently HP's approach as outlined in the press, we believe runs fundamentally counter to the Linux value proposition," Samson wrote. Because HP's indemnification is rendered void as soon as customers make modifications to the source code, "it will inhibit customers from taking full advantage of the open source development process," he wrote.

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.

Re:SCO responds.

[MuParadigm]

Well, Darl didn't say it, Blake did. I know, it's a fine line, given that it's kind of hard to tell the siamese triplets (Darl, Chris, Blake) apart.

The copyright claim, while flat out untrue, is also contradicted by SCO's own previous statements. Even more interesting to my mind is the statement: "If we want to charge someone a licensing fee for using our copyrighted software that's gone into Linux, then we have that prerogative..."

Has Blake even *read* the GPL?

These guys really aren't making any sense at all anymore. It used to seem like they were at least making an effort, unsuccessfully, but trying. I think they must have added LSD to their crack mix.

Re:SCO responds.

[kfg]

The question boils down, at least in part, to what copyright they claim to be distributing their distro under.

The distro has a license that may be unique and apart from the licenses of each individual file.

If they distribute their distro under a blanket GPL license then yes, they are effectively charging a license fee for code they have no rights to even if a single line of that code does not belong to them and are thus in violation of the GPL for their entire distro. Every individual who has contributed code to that distro may sue them for license violation.

How many people have contributed code to their distro? Richard Stallman, Bill Joy and Linus Torvalds, for starters, since it is a BSD/GNU/Linux distro. The entire KDE/Gnome teams as well.

If they have not claimed GPL over the entire distro than they must enummerate those files which are under a different license and take care that all linking and derivitive works therein comply with any GPL licensed code.

If they have not they are in violation of the GPL for each instantiation.

If you right a VB app Microsoft may own the VB runtime, but they do not own your code as a derivitave work. You own that.

SCO has effectively declared legal war on anyone who has contributed code to their entire distro.

Fight back.

KFG

Re:SCO responds.

[OscarGunther]

If we want to continue to distribute Linux to our existing customers, we can do that because we own the copyrights on that Unix software."

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.

Re:SCO responds.

[kfg]

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

Re:SCO responds.

[DaveAtFraud]

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.

Re:SCO responds.

[hacker]

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.

That might just be because it was penned by a former IBM attorney?

IBM's Millions and Millions of Lawyers

[JasonUCF]

I swear, if this ever proceeds to court, I fully believe Darl McBride will be wearing Depends.

How charming to think that the lying, snivelling legal lapdogs at SCO are going to get the Big Blue treatment.

Thanks Big Blue!

Duh......

[phunhippy]

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

Re:Duh......

[grub]

should prove to be interesting as long as it doesn't drag out for 5 years

It won't. SCO will go belly up long before that.

Re:Duh......

[LWATCDR]

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).

What is wrong with that? Why is it bad if someone makes money from doing work? IBM does a lot of work makeing Linux better. They support and follow the GPL. They spend there money defending the GPL. Let's see.

1. write free software
2.???? No wait I got it, sell support for the free software and hardware to run it.
3 Profit!
Hey that works.

Re:Duh......

[hankaholic]

sell support for the free software and hardware to run it

This fits wonderfully with IBM's traditional modus operandi.

They tried to co-author an OS with Microsoft; however, Microsoft's goals ran against IBM's, and it turned sour. Being a software company, MS had (and has) a significant interest in controlling the software involved.

It seems to me that IBM hasn't traditionally been interested in selling programs, but in providing top-notch business solutions. Remember, IBM stands for International Business Machines. IBM embraced OSS because it allows them to do what no traditional software vendor (including SCO, MS, et. al) can allow them to do -- provide business solutions with a minimum of outside interference. OSS means that IBM can do whatever necessary to allow software to fit a customer's needs, and to ensure that it'll run on whatever hardware they throw at it, even to the extent of porting the code.

OSS means that IBM isn't tied to a vendor, or architecture. IBM isn't afraid of a bunch of people copying their software -- in fact, they're probably pretty happy that some of those using the same programs happen to also work on improving them.

Open standards work for IBM. Code which can be freely modified works for IBM. OSS works for IBM because it removes the worries of vendor lock-in, and IBM will survive because in the end they do something which SCO does not:

IBM delivers a product for which many businesses will gladly pay, and from which they will benefit, and for which they would probably pay again in the future.

No

[brlewis]

The GPL will only get a full vetting when it goes to court. SCO will never let this case see a courtroom.

Re:No

[gl4ss]

so.. they're going to do what exactly?

settle for measly pennies out of court? would ibm want that, or what good it would do for ibm to settle for measly pennies, and pennies paid to who?

they might realise that sco's claims have gone so far that settling the case(one way or another) wouldn't make as much sense as beating them silly in the courtroom would(because they need that for credibility and as a predecent and a warning against other silly idiots who might try the same).

Re:No

[Eric Damron]

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.

Pump and dump now!

[hackstraw]

This press release was 11:48, and look at SCO's stock drop.

Its interesting that IBM is getting behind the GPL, but I do think that this suit is just a press release, and I would be very supprised if it ever made it to court. If it were the case that Linux has SCO IP in the kernel, then IBM's case would have no merit. Also, I do not see where SCO is even in violation of the GPL. IBM says:

SCO violated the general Public License under which Linux is distributed. The GPL requires Linux distributors to permit customers to freely copy the software.

SCO's binary runtime license says nothing about source code nor distribution.

Re:Pump and dump now!

[warmcat]

The GPL requires Linux distributors to permit customers to freely copy the software.

During your holiday on Mars, SCO insisted that every Linux user must pay SCO ~$700 for the fantastic yet undefined SCO IP in Linux. That's where SCO slightly deviated from the "freely copy" bit.

IBM rock and SCO paper.

Re:Pump and dump now!

[pavera]

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.

Re:Pump and dump now!

[gr0nd]

From the GPL:

6. Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions. You may not impose any further
restrictions on the recipients' exercise of the rights granted herein.
You are not responsible for enforcing compliance by third parties to
this License.

They have annouced they are selling/requiring licenses to GPL covered code.

Additionally, SCO can't have a binary-only runtime license, under the GPL:

3. You may copy and distribute the Program (or a work based on it,
under Section 2) in object code or executable form under the terms of
Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable
source code, which must be distributed under the terms of Sections
1 and 2 above on a medium customarily used for software interchange; or,
(...etc...)

Re:Pump and dump now!

[William Tanksley]

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

Re:Pump and dump now!

[Eric Damron]

"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

Re:Pump and dump now!

[nick_danger]

How did the parent get modded '5 Interesting'?

If it were the case that Linux has SCO IP in the kernel, then IBM's case would have no merit.

IANAL, but I'm not letting that stop me from saying... buzz! Wrong! You fail to recognize that the Linux kernel is the effort of hundreds, each holding copyright to their own contributions. IBM has their own contributions in there, too. And the whole lot is covered under a license that places certain restrictions on what one may do with the material. If you don't agree to the terms of the license, then normal copyright law takes effect. And according to copyright LAW, what SCO is alledged to have done is illegal.

This isn't just an IBM vs SCO thing. It's a Linux kernel contributor vs. SCO thing.

Re:Pump and dump now!

[pyrrho]

I see 12 replies, so maybe this will be redundant.

The thing is, the GPL says you cannot have royalty generating IP in a GPL covered product. When SCO found out their IP was in there, they had to remove it. They had to RECALL IT! That's right, they had to recall their shipped copies of linux, not because their customers had no right to SCO IP, but because they don't have a right to everything else. E.g. you can't have GNOME because you have that under GPL, the violating IP means you don't have the GPL, and therefore SCO can't ship linux because of all the IP in there that does not belong to them. Of course the best example is not GNOME, but the parts of the kernel that are comingled with supposed SCO IP.

So when SCO indemnifies SCO Linux customers, they were saying SCO wouldn't sue them, but in reality, IBM now can! Those customers are using IBM IP without a license (because the GPL doesn't apply while SCO's royalty generating IP is in there with it!)

Re:Pump and dump now!

[SmilingMonk]

SCO = TOAST

I believe the correct syntax is

• SCO == TOAST

Re:Pump and dump now!

[naarok]

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.

Re:Pump and dump now!

[Rimbo]

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.

That might not work

[siskbc]

Darl, I'll let you sleep on the couch in my basement. Note though that my cat is very fussy, you'll have to completely bury your turds in the litterbox or she'll get mad. Thanks, buddy!

Darl's such a turd, your cat will try to bury HIM.

Re:That might not work

[JonnyElvis42]

Darl, I'll let you sleep on the couch in my basement. Note though that my cat is very fussy, you'll have to completely bury your turds in the litterbox or she'll get mad. Thanks, buddy!

Darl's such a turd, your cat will try to bury HIM.

Already done... sort of. I was using pictures of Darl to train my cat to attack him, and the dumb cat ate the pages. After several hours of... processing, Darl re-emerged and was promptly buried. What's sad is that he was far more pleasant afterwards.

Re:That might not work

[OECD]

Darl's such a turd, your cat will try to bury HIM.

In Soviet Ru... oh, nevermind.

You are easily misled

[stratjakt]

..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.

IBM owns patent on FUD.

[ryan76]

I am almost positive SCO has violated several IBM patents on FUD.

Irony, thy name is IBM

[GrouchoMarx]

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.

Re:Irony, thy name is IBM

[RickHunter]

Except the objections are to patents that are a) trivial and b) abused. While IBM's may be trivial, they are definitely not abused. This is the first time I can remember hearing about IBM using them, which seems to say that IBM believes they shouldn't be used except to take out kamikaze lunatics like SCO that threaten the entire industry.

WLTSIM comments on press coverage

[Demona]

From We Love the SCO Information Minister:

"I think this [website] comes from a few individuals in the open-source community, which tends to paint a bad picture of the community as a whole. I think most in the open-source community are good, hard-working developers that want to create some great things. It's unfortunate that a few bad apples spoil the image of the whole group." - Blake Stowell, September 25 2003

Thanks to SearchEnterpriseLinux for their coverage, but we must disagree with the statement that our site "excerpts several comments SCO officials have allegedly made about Linux during the past year or so." None of these comments are "allegedly" -- they're 100% verifiable fact, statements made in front of God and everyone...which is the point of providing links, so the reader can check the full original context. Of greater significance is the assumption that our creation must be motivated by anger; since we don't know Darl personally, our feelings could best be described as "affection". Like Saeed al-Sahaf, McBride proves that "truth is stranger than fiction because fiction has to make sense." With his rampant contradictions and defiance of all logic, he provides us with the finest gift of all -- the gift of laughter. Rather than provide needless attempts at witty commentary, we prefer to let his statements speak for themselves.

Stowell and company should recognize WLTSIM as being far less hostile to them than their own crude propaganda was to the Linux community.

Re:Someone needs to do a lawsuit flowchart

[larien]

We'd need MC Escher for that, I think....

SCO are arming the opposition

[gilesjuk]

SCO thought IBM would give in early on but this hasn't happened. They're trying to come up with as much ammunition as possible but ultimately I think they're giving other people plenty to to shoot back at them.

Hopefully other contributers to the kernel will start suing them too.

Re:where's mcbride?

[gregarican]

Maybe Darl was riding a Segway and accidentally slammed head-on into a VW "The Thing," thereby bringing together two silly transportational fads in a most tragic way.

"Legion of fire-breathing IP lawyers" ??

[Rick.C]

There are in fact only 16 of them, but they multiplex into a virtual legion of 4096.

They may have to now

[siskbc]

The GPL will only get a full vetting when it goes to court. SCO will never let this case see a courtroom.

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.

Re:They may have to now

[SillySlashdotName]

No, the shareholders are not responsible (legally or financially) for the debts or actions of the company. The limit of their liability is the price they paid for the stock they own. It can go to zero - in a bankruptcy for example - but it can't go any lower than that.

Yes, the officers and board of the company ARE individually liable for the actions of the company - both to the shareholders and to the rest of the world.

Although I do think the shareholders are MORALLY responsible for the actions of their company.

IANAL, either.

Correction

[Rosco P. Coltrane]

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!)

Re:Correction

[RevMike]

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.

They do have an OS of their own. In fact the have more than one. They have OS390 and AIX.

What is really happening here is that IBM missed the last paradigm change. When the PC market exploded with quality clones, IBM was always 6 months late and $1000 too expensive. IBM didn't manage to bring a really respectable PC product to market from the tim eof the IBM AT until the first ThinkPads hit.

The reality is that there isn't much money in either PCs or OS and Application Development. The real money is in enterprise hardware and consulting services. As long as the linux market continues to grow, IBM Global Services is sitting pretty doing implementations.

Re:Correction

[pavon]

Thats right, IBM has not a single OS of their very own :)

Re:Correction

[glaqua]

It gets even more interesting

IBM makes a very large amount of money from the zSeries line(AKA Mainframes) and from zOS licensing. They sell close to $4 billion per year in mainframe hardware, and $2.369 Billion from operating systems (zOS, OS400, AIX. Sorry, I couldnt find a breakdown for each). For comparison, in the early 90's, they were selling close to $11 billion per year in mainframe hardware.

I believe that IBM desperately needed another OS to run on mainframe hardware, in order to rejuvenate the product line, and justify the continued research. If the revenue fall off had continued, it might really mean the death of the mainframe.

Now that you can run Linux on the mainframe, it is the most scaleable linux platform you can get. They are going to vigorously defend that revenue stream.

I like IBM's approach better than HP.

[ron_ivi]

So to summarize:

IBM: "Free software wants to be free."

HP: "Pay us because free software is scary."

The stock price is going down at last!

[Pembers]

Chart. As I write this, it's down nearly $3, or 17%, on yesterday's close. McBride and his cronies have less than an hour before the markets close to innovate another press release to try to pump it back up again. Grab some popcorn - this is gonna be fun.

Ransome Love talks about SCO

[kuwan]

eWeek has an interview with Ransome Love, the former CEO of Caldera/SCO where he comments on SCO's current lawsuit and what Caldera's intentions were when they purchased the Unix source from the original SCO.

Some interesting bits of information are that Caldera originally wanted to open source the Unix code they had purchased and that Ransom Love sold all of his shares in SCO when they announced the lawsuit with IBM.

Here's a nice quote from Love: "I don't believe that the suit is good for the company or Linux."

Re:Ransome Love talks about SCO

[overbyj]

The most ironic part about this is Love's first name. He should sue SCO for infringement because they are smearing his first name by doing exactly that: Ransoming the Linux community.

Attention! May I have your attention please?

[Chordonblue]

SCO will most definately have to follow up IBM's news with some sort of 1984-ish FUD. Sort of like this stuff:

"Big news! More companies than EVER are purchasing our licenses!"

"You should see our new version of UNiX - it's got SAMBA!"

"All your Linux are belong to us..." etc...

After an annoucement like this, they're going to have to come up with some huge Newspeak-like announcement to get that stock price back up - and quick. Wait for it, Darl can't possibly shut his mouth now.

All we need now are reassurances that all goes well on the Malabar front...

heh

[Tumbleweed]

And you thought the Battle of Helm's Deep was massive. I'd rather have a bunch of Uruk-Hai after me than IBM lawyers. *shudder*

Groklaw

[astroboy]

As always, Groklaw has some excellent commentary on this, including a link to a fascinating Interview iwith Ransom Love inteview about the whole SCO fiasco.

A kick in SCO's hairy balls

[GillBates0]

According to the memo, which was obtained by The Wall Street Journal, the new counterclaim charges 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.

The memo failed to state however, that the counterclaim was the latest strike in what IBM calls "it's long term plan to kick SCO's big'n'salty donkey balls".

You should probably thank SCO..

[i_want_you_to_throw_]

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.

Obligatory Matrix Quote

[oni]

Do you hear that Mr. McBride? That is the sound of inevitability.

Stowell tells a bald-faced lie

[gvc]

I know that all of SCO's statements have been, shall we say, disingenuous, but Stowell's comment today, if quoted accurately, is the clearest lie I have yet seen issued from an officer of that company:

"If we want to continue to distribute Linux to our existing customers, we can do that because we own the copyrights on that Unix software."

cf. Infoworld

GPL: It's the law

[vinsci]

Remember that the GPL has already been tested in court, and won?

IBM got the idea from me

[dillon_rinker]

Seriously. Look here.

I will be insufferable for the rest of the day.

More than just a GPL issue

[CgiJobs]

The claim also states "SCO has published false statements in a series of widely-distributed press releases ... as part of its bad faith campaign to discredit IBM's products and services in the marketplace ... IBM has suffered damages in an amount to be determined at trial."

Hopefully, this will require SCO to reveal more evidence since IBM is claiming that SCO's current practices are causing damage. In related news, SCO stock continues to drift lower under heavy volume...

Who better?

[benploni]

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.

Brilliant strategy

[WCMI92]

Everyone is missing what this manuver does... SO far, SCO's ACTUAL FILED allegations are about a contract dispute with IBM.

They keep making their copyright claims in press releases.

By IBM introducing copyright violations into the suit themselves, THEY FORCE SCO TO RESPOND. Also, IBM can get the code that SCO claims is in Linux in the discovery phase.

This thing is quickly going nuclear. I notice the stock's dump has started to level off, guess Melinda Gates is spending more pocket change...

SCO validates GPL and erradicates their own case

[Anonymous Coward]

It is actually a brilliant move by IBM. Either of the following will happen:

a) SCO says the GPL is valid and that they are free to distribute under the terms of the GPL - thereby making IBM's claim superflous AND also making Linux (and any theoretical infringing code therein) available to all users under GPL with no need of licensing from SCO.

b) SCO says the GPL is invalid - thereby making IBM's couterclaim true - thereby making themselves subject to endless lawsuits for delivering code that they don't have a license to - thereby insuring the timely demise of SCO due to lack of legal funds.

SCO can't win. They can't have it both ways. They are in a very bad legal quagmire.

Paul Seamons

Re:No, where's BOIES?!!

[WCMI92]

Boies, hotshot?! Has this guy ever WON a case?! He lost the Napster case, lost against Microsoft, lost defending Algore's perpetual recount, etc.

I don't know WHY this guy has ANY kind of reputation that is positive. He is either a horseshit lawyer, or he takes on loser cases. There is no third possibility.

Hell, the best sign for our side was that BOIES's name was tacked on...

More counter claims???

[Error27]

The original response to SCO included 10 defenses and 10 counter claims.

Adding another counter claim screws up the symmetry completely.

Re:No it's not

[pknoll]

I doubt this crap will make it to court. SCO is bluffing all the way.

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.

Then Darl announces that he will sue ...

[burgburgburg]

the CE Linux Forum and all of it's members: Sony, Matsushita Electric Industrial Co., which makes the Panasonic brand, Hitachi, NEC Corp., Sharp Corp., Toshiba Corp. -- as well as Royal Philips Electronics of the Netherlands and Samsung Electronics Co. of South Korea. At that point, SCO stock will hit 50. After Canopy leverages that to sell a lot of paper on other Canopy sub-companies and cash out a lot of positions, Darl and the other insiders will sell, sell, sell and cry boo-hoo all the way to the bank. That's what this has been about all along anyway: pump and dump.

Thinly Traded Stocks...

[Royster]

...are prone to manipulation. WHen volume is high and there's a lot of activity and the bid/ask spread is narrow, there's not much luck of manipulating it short of throwing wads of cash at it. SOmeone on the Yahoo finance message board for SCO says that someone spent $1 million in 15 minutes to stop the free fall.

WHen the volume is low and the bid/ask spread is wide, someone can (illegally) collude with someone else to make wash trades within the bid/ask spread to slowly walk the price upward. The price is completely unsupported so that when selling hits again, it free falls as it did today.

You can learn a lot about the risks of trading thinly traded stocks by reading the last few weeks of messages on the Yahoo finance board.

Winner?

[SubReale]

Here is who will win.

IBM has a lot to gain by using the GPL to win this

[ron_ivi]

IBM and their firebreathing lawyers are on the side of the GPL because it's good for business.

IBM has worked long and hard to prove it's a friend of the open-source community.

• Gang-like tagging of city property
• Large, highly visible donations of software and cash into open source community projects

This isn't as a charity act. They're doing this because open source advocates are influential in many large hardware and software purchases around the world

Because IBM thinks this community is influential, they guide their actions to appeal to them.

Defending the GPL is a great way to appeal to them -- even better than spraypainting grafiti on cities.

One of these days...

[Kjella]

...they're going to slip up and claim "If we want to continue to distribute Linux to our existing customers, we can do that because we own the copyrights on that Linux software.", because that's what they're implying to say.

Now I haven't checked how many LOC Linux is, but the great great majority is NOT in any way copyrighted to SCO, even with their most absurd of claims. That means they need a valid licence to distribute Linux, and must abide by the terms of the GPL.

This in particular includes paragraph 2b:
"You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."
and 6:
"Each time you redistribute the Program (...), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein.

However SCOs rights may or may not have been violated, SCO has no right to violate the rights of all the honest contributors to the Linux kernel. Their right to compensation comes from the legal system, not by stealing back. "Some of you (OSS developers) took our code and illegally licenced/distrbuted it, now we'll take yours and do the same!"

That's what their claiming. Not even that their the same people. It's like claiming "Well this one black guy punched me once, so now it's my right to punch any black guy I feel like!" That argument is only for the press - they'd be torn to pieces for it in court.

Kjella

On Who's Side

[Goo.cc]

"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).

Re:On Who's Side

[flacco]

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.

uh, which is the definition of "being on the side of". no one said it was permanent.

Profit from SCO's demise

[CHaN_316]

Has anyone considered short selling SCO shares by using options? Options is where you predict the price of a company at a future time, and the closer to the price you are by that time, the more money you make. Put me down SCO's stock price at $0.01 USD/share for next year same time. It's probably a good move for geeks since we know what SCO is trying to pull here. To the average financial broker guy, all they see is oooo, SCO may make $1 billion from IBM... BUY BUY BUY!

*Disclaimer: The opinions offered in this posting is merely speculative and does not reflect any professional financial insight at all. Please consult a real financial expert for all your investing needs before even considering attempting this financial manoeuver. Please kids, don't try this at home.

Re:Profit from SCO's demise

[Zathrus]

Has anyone considered short selling SCO shares by using options?

It doesn't look like the options are being sold on the major markets -- a few quick checks of public stock data show no options available for SCOX. Not surprising - it's a very low volume stock with very few shares outstanding.

That said, unless you can get some very long term options, I certainly wouldn't buy them. Until the case goes to trial (2005) the stock is going to vary wildly based on market perception. Presuming the trial goes as expected it would mean the stock would drop and your options are worth something.

Options are a very dangerous way to play the market -- you pay money for them and if the stock doesn't become worth more or less than the option price (depending on the kind of option you buy) then you lose all your money. You don't even have the stock to show for it -- which could at least revalue at some point.

Unless you're very market savvy, I'd recommend staying away from options.

Let's be realistic.

[SiO2]

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

hostage situation

[trybywrench]

I hear there is a group of terrorists in FL holding a plane load of SCO lawyers hostage. They're threatening to release one every hour unless their demands are met.

apologies to Kenneth Lay for stealing his joke.

The Million Hackers' March

[Anonymous Coward]

The GPL is the agreement by which all the Linux kernel contributors agree not to sue each other for redistributing each other's work.

By asking for a fee for the Linux kernel, SCO publicly and definitely placed itself in the position of a Linux kernel contributor who would suddendly breach this agreement and start asking for a fee all the other contributors. The agreement does not protect them anymore, so each other kernel contributor can prosecute in return.

This Copyright blade is heavy, and cuts both ways. Just stop and imagine the news headlines if every single person who contributed code to the Linux kernel filed a suit against SCO for copyright infringement !

Sue the OpenSource Community, get sued back a million fold ?

IBM is like Godzilla.

[raygundan]

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.

Big Blue

[Bendebecker]

SCO: All your Linux belong to us.
IBM: I'm in your face, suing your dudes...
SCO: That's no fair!
IBM: noob

Yeah it's retarded but I am too damn tired to be funny.

Re:USC-17

[Jeremy Erwin]

It's title 17. Sections are subdivisions of Titles. For instance, 17 USC 1201 et seq. is where most of the provisions of the DMCA are lodged. Although the criminal penalties are encoded in title 17 (in various places), Title 17 encompasses statutory Copyright law in all its forms.

Speaking of turds....

[Linuxathome]

Darl McBride may be one. But what most upsets me is David Boies, the bigshot lawyer behind SCO, who has turned into one himself. And I quote from this article:

Boies also represented the federal government in its antitrust case against Microsoft, Al Gore in his attempt to win a favorable Florida ruling in the 2000 presidential election, and Napster in its fight to defend its online music-swapping business.

I'm fine with the fact that you were a turd all your life and show it (Darl), but if you weren't and turned to the dark side (David Boies), I have a harder time accepting it.

Re:Speaking of turds....

[kenl999]

Well, given Boies' track record, the Linux community is home free...

Re:Speaking of turds....

[geoffspear]

Well, at least it's encouraging that he didn't manage to actually win any of those cases.

Re:They're going to do this exactly:

[gl4ss]

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)

Class action suit against SCO?

[darkharlequin]

How many people have actually contributed code to linux? We could get those scum sucking lawyers to go after SCO, for which they get the lion's share of the settlement, and SCO gets a 0 ballance in their bank account. If IBM can claim this, why not the individual developers?

Darl lost almost a million today...

[linuxjack55]

SCOX opened at $17.02. It closed at $14.29.

Between the shares he owns outright and his vested options, the net value of Darl C. McBride's SCOX portfolio dropped from $5,133,293.22 to $4,227,836.85, a one-day fall of $905,456.37.

I was hoping he would break the million-dollar barrier, but a small rally in the last half-hour of trading took the stock above 14.

Re:Copyright assignment

[linuxbikr]

If SCO distributed JFS, RCU, etc with their kernels, then IBM's counterclaims make sense since SCO is now going against section 4 of the GPL.

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.

Re:Er.. reality check

[Jeremi]

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.

Re:USC-17

[mkldev]

17 USC (a.k.a. Title 17) is the U.S. Copyright act. The burden of proof for insanity is 18 USC section 17(b).

Now this lawsuit IS about copyright

[worldcitizen]

SCOX has been babbling that this issue is about copyright.

Yet, their court filings didn't mention copyright.

Now this lawsuit points to the true violators of copyright and copyleft!

Glad to see SCOX a couple of $$$ down, looking forward to the day they're in the pink sheets or delisted

----------
Disclaimer 1: This is my opinion and does not necessarily reflect that of my employer
Disclaimer 2: I'm short SCOX

Re:lets see the goods...

[Newsome]

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!

NO NO NO! Your cast is all wrong

[whittrash]

It would be a feature movie. The cast would go like this.

Bill Gates = the voice of Optimus Prime

Darl McBride = Christopher Walkin "I don't understand Wwhat! Is the problem...here."

SCO Lawyer - Boies = John Travolta (the fat version sitting with bridged hands in a leather chair)"Elegant, isn't it."

Linus = Victoria Silvestedt (shes such a great actor, I lover her work, but she won't talk the whole show but will be in every scene)

Linux developers = Jack Black and the Mountain Dew guys (comic relief)

ESR/Perens = Nick Nolte, Michael Ironsides (pissed off and dramatic) Nolte: "Well damnit, this is bullshit, how much longer do I have to take this crap." Ironsides: "They (the aliens) sucked his brains out! Theres your problem."

The Intrepid Reporter = Nicholas Cage (the narrator eye for the story with his bad southern accent in Conair mode)

IBM CEO = Ian Mckellen (Gandalf)"This foe is beyond any of you.""Ahh, there it is, the air isn't as foul this way, when in doubt, always follow your nose."

IBM Lawyer = Samuel L. Jackson "We need shotguns for this job"

The Judge = Puppet Yoda(not CGI) or Grover "Begun this SCO war has", "now matters are worse"

The Jury = Chasey Lain and a pole "Oh yes, yes yes, Oh god, YES."

Director= Ridley Scott

TITLE: Project Monterey

Little Solace Boise facing Ethics charges

[bstadil]

The Boise scumbag is facing Ethics violations in Florida.

I am always taken back when lawyers talk about Ethics, but I guess it has to be understood in a Arbeit Macht Frei sense

A plea for help

[Anonymous Coward]

A group of SCO executives is being held hostage by a terrorist organization. The terrorists are threatening to burn the SCO executives alive if their demand of ten million dollars for the release of each SCO exec is not met.

We are requesting a donation from anyone that cares about the issue and no amount is too small.

So far we have received two Zippo lighters, three boxes of matches, twenty gallons of unleaded gasoline and a can of kerosene. Please contribute to alleviate the sutuation.

IBM had no shoice

[ozzee]

If IBM did not add this claim, it would have diminished claims it made in an earlier filing.

Note that earlier IBM had filed that SCO was in violation becuase it had shipped the code it was saying that had been illegally added.

What would happen if the judge had asked IBM, "if this is the case where is this code that you claim you wrote that is now being shipped by SCO and why are you not screaming about it ?".

I think they are just dotting 'i's. They have full intention of involking the GPL.

IBM is asking for a declaratory judgement!

[Tsu Dho Nimh]

The IBM steamroller just got on the fast track.

Not only are they charging infringement of IBM's copyrights (several listed, with record numbers) they are asking for a declaratory judgement (another put up or shut up permanently request). Page 36 ...

And on Page 37, IBM reminds the court that there IS a controversy between IBM and SCO on these issues. (SCO can't try to weeezle out of the request for declaratory judgement like they did RedHat's)

SCO is SCOrewed!

Re:This doesn't really hurt SCO

[caillon]

> If SCO wins their case against IBM, that will pretty much invalidate the GPL for Linux, at least in respect to IBM contributions.

I don't see how SCO winning defeats the GPL. IANAL, but AFAICT, the point upon which SCO's case relies upon is whether proprietary code owned by SCO was put into the linux source by IBM without permission. The GPL provides safety against that with...

0. This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License.

...and if they win the case, it would potentially reinforce that section of the GPL. It seems to me that IBM is trying to get SCO on clause 7 which says...

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

Also, don't forget that many contracts tend to follow that if one thing is found by a court to be illegal, the rest of the contract shall remain in full effect. So it seems to me that IBM's suit does have some merit. It may be possible that one portion is found to be illegal, while other portions stand. It should be fun to watch this pan out.

You need to read the article again

[bstadil]

(Judge) Saris declined to get into the complexities of the GPL

Re:This is bad

[spitzak]

Although IBM made patent threats in their original claim (and some people here were quite upset by that), the new claim is entirely based on copyright. The general feeling here is that copyrights are good, and technically the GPL requires copyright for legal support.

Anybody who says "but Slashdot users want music for free so they must not like copyright": downloading a copy of song from Metallica without paying is nothing compared to selling Metallica's music for profit and convincing people that you wrote and performed it yourself. This sort of copyright violation is what everybody agrees should be illegal.

Re:No, where's BOIES?!!

[Saithier]

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.

Re:Maybe SCO has a point?....

[Todd Knarr]

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.

Re:Maybe SCO has a point?....

[frkiii]

Correction.

THERE IS NO COPYRIGHT CLAIM MADE BY SCO VS. IBM IN THEIR LAWSUIT!

Now that that is out of the way, here is the correct information:

SCO is accusing IBM of writing code (which IBM owns the copyright and patents to) and contributing it to Linux.

SCO claims that this is a breach of contract regarding IBM's license with SCO for System V Unix, trying to claim that IBM's code is a "derivative" of SCO's System V Unix.

The code worked with (but was not a re-write or part of IBM's AIX, which is based on SCO Unix).

IBM had an agreement which assigns ownership of all "derivative" works to SCO Unix System V that IBM developed. However, IBM has an addendum to this stating that IBM owns this code.

SCO's whole case hinges on whether they can convince a court that IBM's owned, copyrighted and patented code is somehow a "derivative work" of SCO Unix. That is very very unlikely to happen.

SCO is either completely and utterly ignorant (or collectively insane) or they knew they did not have a case to begin with, and this is all just part of a scheme to try to extort money from Linux users and to pump and dump SCOX stock.

But, do not take my work for it. Do the research yourself. Google is a wonderful thing.

Regards,

Fredrick

Probable sequence of events

[Animats]

• IBM hires Cravath, Swaine, and Moore, the most to handle the case. (IBM usually uses Cravath, the big New York firm for "must-win cases", as they put it.)
• SCO stock drops to about 10.
• Cravath gets a preliminary injunction against SCO preventing them from trying to collect royalties on Linux.
• SCO stock declines to about 5.
• Pretrial discovery of SCO results in embarassing documents.
• SCO stock declines to about 3.
• A trial date is set.
• SCO stock drops below 2 (which is where it was earlier this year.)
• The first securities fraud lawsuits are filed against SCO executives personally.
• SCO stock drops below 1. NASDAQ delisting process starts.
• More securities fraud lawsuits are filed.
• SCO stock drops below $0.50.
• The first trial (SCO vs Red Hat) starts. SCO execs waffle on claims.
• SCO stock delisted from NASDAQ. SEC investigation starts.
• Trial verdict goes against SCO. Huge claim against SCO becomes due. SCO says they will appeal.
• SCO stock (now on pink sheets) goes below $0.10.
• SCO appeal rejected. Payment due.
• SCO declares bankruptcy.
• First private securities litigation against SCO execs goes to trial. SCO execs lose.
• Democratic president elected. New SEC head announces tougher enforcement.
• SEC files criminal charges against SCO execs. SCO execs face personal bankruptcy.
• Lower-level SCO exec pleads guilty, provides full details on CEO involvement.
• Arrest of former SCO CEO.
• Former SCO CEO tried and convicted. Judge says "what you did was, simply, a scam".
• Former CEO enters federal pen at Allenwood.

Re:But has an injunction been requested?

[Stephen Samuel]

More importantly, does anyone have a copy of the lawsuit or know if IBM is seeking a preliminary injunction?

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.