IBM Counter-sues SCO
 

http://zdnet.com.com/2100-1104_2-5060965.html

Big Blue files counterclaims against SCO
By Stephen Shankland
CNET News.com
August 7, 2003, 1:05 PM PT

IBM on Thursday filed counterclaims against the SCO Group in the continuing
legal battle over the Linux operating system.

In a 45-page document filed late Wednesday, IBM argues that because SCO
distributed a version of Linux under the open-source General Public License
(GPL), it can't claim that Linux software is proprietary. IBM also argues
that SCO software violates four IBM patents and that the company interfered
with IBM's business by saying it had terminated IBM's right to ship a Unix
product, AIX.

IBM is seeking unspecified monetary damages and an injunction to stop SCO
from shipping its software. The counterclaims came as part of Big Blue's
answer to SCO's amended suit and were filed in the same federal district
court in Utah.

"SCO has misused, and is misusing, its purported rights to the Unix
operating system...to threaten the destruction of the competing operating
systems known as AIX and Linux, and to extract windfall profits for its
unjust enrichment," the IBM countersuit said.

In a statement, SCO reasserted its position that Linux violates SCO's
intellectual property rights in Unix and called on IBM to back up its faith
in Linux by providing its customers with legal protection for using the
software.

"The continuing refusal to provide customer indemnification is IBM's truest
measure of belief in its recently filed claims," SCO said.

The patent claims will be expensive to handle, said Brian Ferguson, an
attorney with McDermott, Will & Emery. "That's a real smart move by IBM,"
he said. "I think that alone could cause some kind of early settlement
negotiations that are going to really swing the pendulum around in IBM's
favor--or at least to a situation of equipoise."

SCO has sued IBM for $3 billion, alleging that Big Blue moved proprietary
Unix code into Linux and breached the terms of its Unix license with SCO.
Separately from the IBM suit, SCO has said Unix code was copied directly
into Linux and seeks payments of as much as $1,399 per computer from Linux
users.

The bold initial lawsuit, followed by the equally bold threat that Linux
users should pay or face potential legal action, has sent shock waves
through the computing industry.

On Monday, the top Linux seller, Red Hat, filed a separate lawsuit that
seeks a legal judgment about whether Linux violates SCO's Unix copyrights.

"What I'm getting a sense of now is there is an effort to counterpunch,"
said Gartner analyst George Weiss, who has warned clients to take SCO
seriously. "What I thought the (Linux) community should be doing is shift
the initiative away from SCO and throw them off balance into a defensive
posture. Until Red Hat started its counterclaim, all the initiative was
with SCO."

IBM said four SCO software packages violate four of IBM's patents. The
patents cover a data compression technique, a method of navigating among
program menus that use options that are arranged in a graphical tree, a
method for verifying that an electronic message was received and a method
for monitoring computing systems that are linked in a cluster.

The infringing SCO software, IBM said, is its UnixWare and OpenServer
operating systems, its SCO Manager remote administration tool and its
Reliant HA package, which enables one computer in a cluster to take over if
another fails.

IBM argues in the counterclaims that SCO is prohibited from treating any
code it distributed under the GPL as proprietary and that its current plan
to require Linux users to pay isn't legal.

"By distributing products under the GPL, SCO agreed, among other things, not
to assert--indeed, it is prohibited from asserting--certain proprietary
rights (such as the right to collect license fees) over any source code
distributed under the terms of the GPL. SCO also agreed not to restrict
further distribution of any source code distributed by SCO under the terms
of the GPL," the IBM counterclaims said.

The GPL is a license that Richard Stallman created in the 1980s as part of a
plan to create a clone of Unix that anyone was free to use and modify. That
project, Gnu's Not Unix (GNU), provided the legal and technological
framework that Linux built upon. The GPL hasn't yet been tested in court,
said Jeffrey Osterman, an attorney at Weil, Gotshal & Manges.

"The argument that SCO has essentially destroyed its trade secrets by
selling software to the public that discloses those secrets without
restriction is very interesting," Osterman said.

SCO's defense has been that it must actively and not inadvertently release
proprietary code as open-source software. "It requires them to take the
position they didn't know what they were selling, which, depending on your
point of view, is a hard argument to make. You would tend to think you'd
know what you're selling," Osterman said.

IBM's argument is similar to those made by Eben Moglen, a Columbia
University law professor and the attorney for the Free Software Foundation,
which enforces the GPL; by SCO's former Linux business partner SuSE; and by
a German Linux advocacy organization called LinuxTag.

Though the GPL arose in a case involving NuSphere's handling of the
open-source database developed by MySQL, that case ended in a settlement.

IBM's arguments go to the heart of the GPL.

"SCO has taken source code made available by IBM under the GPL, included
that code in SCO's Linux products, and distributed significant portions of
those products under the GPL. By so doing, SCO accepted the terms of the
GPL, both with respect to source code made available by IBM under the GPL
and with respect to SCO's own Linux distributions," the IBM suit said.

Because the GPL prohibits SCO from asserting proprietary rights over
GPL-covered source code, for example by trying to collect license fees,
"SCO's rights to distribute the copyrighted works of others included in
Linux under the GPL have been terminated," IBM said.

IBM argues that SCO has breached the GPL by claiming ownership rights over
Linux code; by seeking to collect license fees from Linux code; by copying,
sublicensing or distributing Linux under terms of the GPL after its GPL
rights ended; and by seeking to impose additional restrictions on
recipients of Linux code.

IBM said SCO has damaged its business in several ways: breach of its
contract with IBM, breach of the GPL, unfair competition, interference with
prospective customers, and unfair and deceptive trade practices.

SCO has argued that IBM doesn't have the right to take Unix software IBM
created--so-called derivative works--and move that software into Linux.
IBM, however, labeled as "frivolous" SCO's argument that it has ownership
rights with respect to all of the code in AIX.

SCO said it revoked IBM's license to ship AIX in June. In its countersuit,
Big Blue reasserted its position that its AIX license is irrevocable and
perpetual but then added a new twist that involves Novell, the company that
owned Unix copyrights until selling them to SCO's predecessor in 1995.

IBM's suit revealed that Novell on June 12 effectively forbade SCO from
terminating IBM's AIX license. SCO said it revoked the AIX license on June
16. Novell maintained the right to issue such instructions to SCO under the
terms of the Unix sale, the suit said.

The letter Novell sent to SCO--included as an exhibit in IBM's
countersuit--quotes a section of the contract under which Novell sold Unix
to SCO's predecessor. Under that contract, Novell may require SCO "to amend
supplement, modify or waive any rights under, or...assign any rights to,
any (Unix System V) license to the extent so directed" by Novell. If SCO
fails to do what Novell instructs, Novell "shall be authorized, and is
hereby granted, the rights to take any action on (SCO's) own behalf."

The Novell letter also reveals the price IBM paid to buy its perpetual Unix
license: $10.13 million.

SCO has said that under the terms of its contracts, IBM's Unix rights are
perpetual and irrevocable only as long as IBM doesn't violate SCO's rights.

Re: IBM Counter-sues SCO
 

[...]
> SCO's defense has been that it must actively and not inadvertently release
> proprietary code as open-source software. "It requires them to take the
> position they didn't know what they were selling, which, depending on your
> point of view, is a hard argument to make. You would tend to think you'd
> know what you're selling," Osterman said.
[...]

Not necessarily in the case of a Linux distribution which is a hugely complex
product consisting of thousands of pieces of code contributed by thousands
of joe blow linux programmers untethered to any company legally
responsible what its programmers do. I'm not taking a position on SCO
here. I'm saying Osterman is mistaken where Linux distributions are
concerned.

Tony.

Re: IBM Counter-sues SCO
 

In article <frXYa.10133$9f7.1201499@news02.tsnz.net>,
anthony.neville@paradise.org.nz says...
> [...]
> > SCO's defense has been that it must actively and not inadvertently release
> > proprietary code as open-source software. "It requires them to take the
> > position they didn't know what they were selling, which, depending on your
> > point of view, is a hard argument to make. You would tend to think you'd
> > know what you're selling," Osterman said.
> [...]
>
> Not necessarily in the case of a Linux distribution which is a hugely complex
> product consisting of thousands of pieces of code contributed by thousands
> of joe blow linux programmers untethered to any company legally
> responsible what its programmers do.

You assume but actually you have no way of knowing which of those
programmers might be working for a company and sharing proprietary code
from that.

Re: IBM Counter-sues SCO
 

"Mainlander" <*@*.*> wrote in message news:MPG.199f285513c3931c989b30@news.paradise.net. nz...
> In article <frXYa.10133$9f7.1201499@news02.tsnz.net>,
> anthony.neville@paradise.org.nz says...
> > [...]
> > > SCO's defense has been that it must actively and not inadvertently release
> > > proprietary code as open-source software. "It requires them to take the
> > > position they didn't know what they were selling, which, depending on your
> > > point of view, is a hard argument to make. You would tend to think you'd
> > > know what you're selling," Osterman said.
> > [...]
> >
> > Not necessarily in the case of a Linux distribution which is a hugely complex
> > product consisting of thousands of pieces of code contributed by thousands
> > of joe blow linux programmers untethered to any company legally
> > responsible what its programmers do.
>
> You assume but actually you have no way of knowing which of those
> programmers might be working for a company and sharing proprietary code
> from that.

Yeah, that's a good point.

Tony.

Re: IBM Counter-sues SCO
 

"Jay" wrote
| But wait a moment ... the contents of a programmer's brain belongs to
| the programmer.

Depends on your employment contract... if you sign that all works made while
employed by "company a" belong to "company a" then your wrong... I have seen
contracts like this all over the place.

| I think so. And programming is just written words with structure.

what you think and what is law may be two entirly different beasts.

Re: IBM Counter-sues SCO
 

Mainlander wrote:

> In article <bh1sad$u0l2m$1@ID-193106.news.uni-berlin.de>, me@privacy.net
> says...
>> Mainlander wrote:
>>
>> > In article <frXYa.10133$9f7.1201499@news02.tsnz.net>,
>> > anthony.neville@paradise.org.nz says...
>> >> [...]
>> >> > SCO's defense has been that it must actively and not inadvertently
>> >> > release proprietary code as open-source software. "It requires them
>> >> > to take the position they didn't know what they were selling, which,
>> >> > depending on your point of view, is a hard argument to make. You
>> >> > would tend to think you'd know what you're selling," Osterman said.
>> >> [...]
>> >>
>> >> Not necessarily in the case of a Linux distribution which is a hugely
>> >> complex product consisting of thousands of pieces of code contributed
>> >> by thousands of joe blow linux programmers untethered to any company
>> >> legally responsible what its programmers do.
>> >
>> > You assume but actually you have no way of knowing which of those
>> > programmers might be working for a company and sharing proprietary code
>> > from that.
>>
>> But wait a moment ... the contents of a programmer's brain belongs to
>> the programmer. So if the programmer uses part of his brain to produce
>> a piece of software for his employer it should not stop him from using
>> other parts of his brain to produce something for someone else.
>>
>> And it just might be that the programmer created the piece of software
>> as an open source contribution *before* doing something similar for
>> the employer.
>>
>> If an author was to pen a few words for an employer (maybe a press
>> release or speech) then cannot that author use those words again?
>> I think so. And programming is just written words with structure.
>
> Legally, the ownership of program code written in the course of
> employment belongs to the employer.
>
> In the case of the second example, the copyright holder has the legal
> authority over the intellectual property concerned, likely the employer
> again.
>
> In both cases it is recognised that neither programming nor writing
> speeches represent the mere placement of words, the time and money
> invested in writing applications is reason enough for IPRs to be attached
> to it.

However if you write a program in your own time (peraps for you own company)
and decide to lend it to an employer then you should make sure that the
employer understand who has the exclusive ownership of the code. This is
especially important when as a contractor you are
developing similar works for a number of clients.

I have always made this very clear when contracted to do work.
And most people don't mind at all because the reuse of code
gives them a quicker and better result at lower cost.

Re: IBM Counter-sues SCO
 

Anthony Neville allegedly said:

> [...]
>> SCO's defense has been that it must actively and not inadvertently
>> release proprietary code as open-source software. "It requires them to
>> take the position they didn't know what they were selling, which,
>> depending on your point of view, is a hard argument to make. You would
>> tend to think you'd know what you're selling," Osterman said.
> [...]
>
> Not necessarily in the case of a Linux distribution which is a hugely
> complex product consisting of thousands of pieces of code contributed by
> thousands of joe blow linux programmers untethered to any company legally
> responsible what its programmers do. I'm not taking a position on SCO
> here. I'm saying Osterman is mistaken where Linux distributions are
> concerned.
>
> Tony.

I can't see how.

You release the code, you release the code.

Up to you if you "didn't mean to".

Too fsckin' late.

Re: IBM Counter-sues SCO
 

T.N.O allegedly said:

> | I think so. And programming is just written words with structure.
>
> what you think and what is law may be two entirly different beasts.

....and disputes are settled in court at more than $5,000 / day - plus the
lawyers fees.

The rich get 'justice' and the rest get fscked.

Re: IBM Counter-sues SCO
 

T.N.O wrote:

> "Jay" wrote
> | But wait a moment ... the contents of a programmer's brain belongs to
> | the programmer.
>
> Depends on your employment contract... if you sign that all works made
> while employed by "company a" belong to "company a" then your wrong... I
> have seen contracts like this all over the place.

In my case my own company owns a lot of code and from time to
time other companies get a copy of said code. But the said code
gets maintained and improved outside of any contract over a much
longer period than any individual contract.

A client might get a copy of the code and source but they get no right
to on-sell it to another company.

All my contracts make that very clear. If you fail to take those
steps then you are not a very competent contractor.

>
> | I think so. And programming is just written words with structure.
>
> what you think and what is law may be two entirly different beasts.

And I always make sure that the legal contracts are correctly worded.
If you don't, and just accept the default contract presented to you,
then you are a fool.

I ensure that what I think and what is the law are closely aligned.

Re: IBM Counter-sues SCO
 

"Peter" <nospamjynyl@yahoo.co.nz> wrote in message news:3f34d8a7@news.maxnet.co.nz...
> this quote is from Anthony Neville of Sat, 09 Aug 2003 23:06 :
> >
> > And if the code is proprietary, why would you expect its rightful
> > owners to know about it, or for that matter anyone else besides
> > the perpetrator?
>
> Either SCO knows that its code is in Linux or it doesn't.
>
> If it does know it is there, why is SCO still distributing Linux under GPL
> months after they claimed infringement?
>
> If SCO doesn't know the code is there, how do they know there is an
> infringement at all?
>
> Either SCO knows about the infringing code, or they do not. They can't have
> it both ways.

I'm not about to justify SCO's actions because I think they are unjustified.
I was attacking Osterman's lousy reasoning.

Tony.