A brief look at IBM's counterclaims
The first 16 pages of IBM's filing consist of a paragraph by paragraph response to SCO's complaints. IBM denies almost everything that SCO claims, and states flat out that SCO is not entitled to any sort of relief. At the end of this section, IBM asks for a favorable judgement and repayment of attorney's fees.
The real fun begins with the counterclaims. In the intro IBM states:
What follows is several pages describing IBM's AIX and Linux business, and a section on the GPL. IBM notes that SCO continues to make Linux code available via its site, and also that SCO, by modifying and distributing Linux, has agreed to the terms of the GPL.
Then there is a section on the failure of SCO's business; IBM points out
that SCO has never had a profitable quarter until it began its attack on
IBM and Linux. "With apparently no other prospects, SCO shifted its
business model to litigation.
"
There is a lengthy description of SCO's suit and threats against IBM, and, in particular, the alleged revocation of IBM's license for AIX. There is an interesting claim: it is said that, when Novell sold its various rights to Unix, it retained a sort of veto power over license revocation. Novell apparently exercised that power in June, telling SCO to cease its attempts to revoke IBM's license. Of course, IBM denies that SCO ever had the ability to revoke this license, but it makes a big point of the fact that SCO has continued to talk publicly about the revocation when it knows that it is unable to yank IBM's ability to use Unix.
There is a section on SCO's refusal to back up its claims.
IBM devotes several paragraphs to the damage that have been done by SCO's attacks. Then the specific counterclaims are laid out:
- Breach of contract, by trying to deprive IBM of its ability to use
its Unix license.
- Lanham act violation, in the form of saying false things about IBM's
products and services.
- Unfair competition through false ownership claims and attempts to
deprive IBM of the value of its Linux products and services.
- Interference with prospective economic relations.
- Unfair and deceptive trade practices, again through false statements.
- Violation of the GPL, by claiming ownership rights over Linux; trying
to collect license fees; copying, modifying, and distributing Linux
("including IBM contributions") on terms other than those set out in
the GPL; and by seeking to impose additional restrictions on
recipients of GPL code. IBM states that SCO's rights with regard to
the Linux code under the GPL have been terminated.
- Infringement of patent 4,814,746 ("data compression method").
- Infringement of patent 4,821,211 ("method of navigating among program
menus using a graphical menu tree").
- Infringement of patent 4,953,209 ("self-verifying receipt and
acceptance system for electronically delivered data objects").
- Infringement of patent 5,805,785 ("method for monitoring and recovery of subsystems in a distributed/clustered system").
IBM finished up by asking for injunctive relief and damages. No amounts
for damages are proposed.
Posted Aug 7, 2003 18:57 UTC (Thu)
by rjamestaylor (guest, #339)
[Link] (3 responses)
Posted Aug 7, 2003 23:26 UTC (Thu)
by JoeBuck (subscriber, #2330)
[Link]
IBM has explicitly licensed some of its patents for use in GPL code. For example, GCC is now able to use register allocation techniques that were formerly blocked by IBM patents.
I would prefer to see IBM take this much further and put it on a formal basis (especially if GNU/Linux distributors could be accused of violating the same patents that they are charging SCO with violating).
Posted Aug 7, 2003 23:57 UTC (Thu)
by dkite (guest, #4577)
[Link] (1 responses)
Posted Aug 17, 2003 3:57 UTC (Sun)
by md_maloney (guest, #9194)
[Link]
--Mike
Posted Aug 7, 2003 18:59 UTC (Thu)
by sbergman27 (guest, #10767)
[Link] (1 responses)
Are we talking about something that could see quick legal action or is all this stuff that won't be heard in court until sometime in 2005 and may be resolved by sometime in 2007? It makes a difference. Anyone have any insights?
Posted Aug 7, 2003 19:16 UTC (Thu)
by daniel (guest, #3181)
[Link]
IBM will no doubt go for the jugular, with an application for a preliminary injunction.
Posted Aug 7, 2003 19:13 UTC (Thu)
by jbh (guest, #494)
[Link] (8 responses)
4,814,746
(Lempel-Ziv compression with LRU pruning of dictionary)
4,821,211
(Menu-tree thingy, couldn't see at a glance what makes it special)
4,953,209
(Click-through-license for executable programs where the program isn't executable before the license is accepted)
5,805,785
(Recovery of failed cluster members where the individual members are not themselves failsafe or -aware, using heartbeat and membership protocols)
Posted Aug 7, 2003 20:01 UTC (Thu)
by rise (guest, #5045)
[Link]
Posted Aug 7, 2003 20:08 UTC (Thu)
by sbergman27 (guest, #10767)
[Link] (5 responses)
I'm rather familiar with OpenServer. Not so familiar with Unixware. I don't really see where lempel-ziv is absolutely crucial to Open Server. It uses the older unix compress/uncompress. The only place I can think of that the "Tree Thingy" would come into play is in the administration menus and while that *can* be done graphically it also has a text based mode which works about as badly^Wwell. Can't think of anything that the click thru stuff would affect. Nonstop clusters would be affected by the 4th patent, and that does not apply to Open Server. i.e. Open Server (a significant revenue stream even if it is 1992 technology) seems largely unaffected. Patent #31415926: A method by which 2 or more users can use a computer system simultaneously. Not that that would be good news.
Posted Aug 7, 2003 22:30 UTC (Thu)
by roelofs (guest, #2599)
[Link]
You have that backwards. compress(1) uses LZW, which is claim 7 of IBM's patent. Since Unisys also patented LZW and IBM apparently was content to let them reap the royalties for more than a decade, the fact that IBM's patent is a continuation of an application with a priority date three weeks earlier than Unisys's application apparently isn't relevant--i.e., it appears that claim 7 is unenforceable, or at least questionable enough that IBM has never chosen to press the issue. But there are a lot of other claims in there, and it's conceivable that SCO really is touching some of those. See the comp.compression FAQ for details. (Note that none of this has ever been tested in court, TTBOMK, so treat the FAQ as expert opinion rather than case law.)
Greg
Posted Aug 8, 2003 5:11 UTC (Fri)
by mbp (subscriber, #2737)
[Link] (1 responses)
IBM probably have good grounds to suspect that SCO violated those patents. But it doesn't really matter. The technique is fairly similar to stoning to death: IBM can start a practically unbounded number of patent lawsuits if they wish, from their portfolio of thousands. Some of them will hit, but even if they all missed, SCO could not afford to defend them. As Ian Lance Taylor said <http://www.linuxjournal.com/article.php?sid=6956> > IBM is a past master of the IP extortion strategy. For example, see http://www.forbes.com/asap/2002/0624/044_print.html IBM are fighting to preserve a multi-billion dollar Linux and AIX business. The minor expenditure of bringing four, or forty, or four hundred other lawsuits against SCO is well worth while. I am not really happy that the legal system works this way, but in this case it's for the good.
Posted Aug 8, 2003 5:28 UTC (Fri)
by jonabbey (guest, #2736)
[Link]
I am not really happy that the legal system works this way, but in this case it's for the good. Yeah, it is. It's a deal. We open source developers give corporations so damn much value that they can't bear to think of losing it, and we get them on our side when it comes to the minority interest whose ax is gored by UNIX on Intel being a zero-cost item. Rah, rah economic self-interest, what?
Posted Aug 8, 2003 5:39 UTC (Fri)
by error27 (subscriber, #8346)
[Link]
Obviously that's the first thing anyone familiar with software patents will think. Why four and not hundreds?
It seems that these four were chosen because they cover SCO's entire product line.
I think another reason was these were chosen was to send a message. "Don't sue IBM if you work with computers because IBM owns the patent on everything including the start menu. Literally."
To programmers, the four patents probably seem stupid. Frankly the whole idea of software patents seems stupid and I personally believe that software patents are unconstitutional based on the first amendment. However, SCO has to take the patents seriously. Unfortunately for them if they can prove prior art for all four patents, IBM will simply
find four more.
Posted Aug 8, 2003 15:15 UTC (Fri)
by ksmathers (guest, #2353)
[Link]
I think they were chosen for tactical reasons. Each patent touches upon exactly one SCO product, chosen to represent the most valuable and proprietary assets SCO owns. This is a strike to SCO's heart -- a little like targeting a MIRV at Berlin, Paris, Madrid, and London. I don't think it will cow SCO since they were obviously already betting their company on this, but it may make some investors rethink their strategies. Or then again, maybe not.
Posted Aug 12, 2003 9:50 UTC (Tue)
by NAR (subscriber, #1313)
[Link]
Posted Aug 7, 2003 19:26 UTC (Thu)
by jdthood (guest, #4157)
[Link] (3 responses)
Posted Aug 7, 2003 19:34 UTC (Thu)
by Dabuk (subscriber, #1507)
[Link] (2 responses)
Posted Aug 7, 2003 20:08 UTC (Thu)
by StevenCole (guest, #3068)
[Link] (1 responses)
6,529,784 Method and apparatus for monitoring computer systems and alerting users of actual or potential system errors.
6,362,836 Universal application server for providing applications on a variety of client devices in a client/server network.
6,104,392 Method of displaying an application on a variety of client devices in a client/server network.
The first is assigned to Caldera Systems, Inc. and the last two are assigned to The Santa Cruz Operation, Inc.
Posted Aug 7, 2003 21:00 UTC (Thu)
by sbergman27 (guest, #10767)
[Link]
Come to think of it. Didn't the original SCO change it's name to Tarantella while the operating systems and services divisions of the company were transferred to Caldera (now The SCO Group)? So anything not expressly transferred would still reside with Tarantella, Inc?
Posted Aug 7, 2003 19:54 UTC (Thu)
by leandro (guest, #1460)
[Link] (6 responses)
Or rather, when will the FSF, as seemingly IBM has assigned them their Linux work copyrights?
Posted Aug 7, 2003 21:50 UTC (Thu)
by coriordan (guest, #7544)
[Link] (4 responses)
I heard that IBM assigned it's copyrights for the s390 port to FSF, but a quick grep of linux-2.6.0-test2 says that the copyrights for most files in there are held by IBM and the remainder are held by Linus Torvalds. FSF do have copyrights to one header file in the asm-s390 directory, and one s390 documentation file though. Can someone clear this up?
Posted Aug 8, 2003 5:00 UTC (Fri)
by mbp (subscriber, #2737)
[Link] (3 responses)
I don't know why anyone would assign copyrights to the FSF for kernel work, since the FSF is not particularly involved with the Linux kernel. I suppose they wouldn't say no if you wanted to... IBM has contributed code both under corporate and personal copyrights. (Try grepping for ibm.com addresses.)
Posted Aug 10, 2003 1:33 UTC (Sun)
by coriordan (guest, #7544)
[Link] (2 responses)
but the question is: If FSF owns the copyright, the file has to say so.
Posted Aug 10, 2003 23:59 UTC (Sun)
by garloff (subscriber, #319)
[Link] (1 responses)
Posted Aug 11, 2003 0:24 UTC (Mon)
by coriordan (guest, #7544)
[Link]
thanks garloff. Ciaran O'Riordan
Posted Aug 8, 2003 4:58 UTC (Fri)
by mbp (subscriber, #2737)
[Link]
I doubt if Linus is going to do that himself; it would only increase the media feeding frenzy and presumably he has more useful things to do with his time. However it doesn't have to be Linus: unlike Apache or GNU projects, copyright in the kernel is widely held. Anyone with copyrighted code in the kernel can potentially tell SCO to stop distributing it. Indeed, a German hacker (currently unnamed) did so a few months ago. Unfortunately SCO, in their current death-agony mode, are unlikely to respond to a cease-and-desist letter. I suspect you would need enough legal firepower to get an injunction against them, and that doesn't go cheap. The organizations with enough at stake to fund it (RedHat, IBM, OSDL, etc) are already acting. Note that OSDL includes many other major companies. Perhaps some kernel hacker who got rich off LNUX shares will decide to put a few thousands into suing SCO... unfortunately by the time IBM are done with them, there probably won't be enough left for anyone else to recover their costs. (Think rotten.com gunshot wounds....)
Posted Aug 7, 2003 20:59 UTC (Thu)
by nix (subscriber, #2304)
[Link] (1 responses)
Posted Aug 7, 2003 21:02 UTC (Thu)
by corbet (editor, #1)
[Link]
This one is fixed, sorry. I was in a hurry.
Posted Aug 7, 2003 21:08 UTC (Thu)
by euvitudo (guest, #98)
[Link] (3 responses)
My conspiracy theory is that the only thing MS wants is domination, and that means killing the competition. They are also struggling with their image regarding FLOSS. Hence, they buy a SCO license, let the FLOSS community hate SCO, wait for IBM to countersue, then sue SCO for a useless license. MS would love to look like it's finally agreeing with the FLOSS community, so they go after SCO to obtain the admiration of the FLOSS community. Then they look for other ways to destroy the competition (read: especially now that everyone is balking about indemnification, and IBM is enforcing patent rights). Any thoughts? Cheers!!
Posted Aug 7, 2003 23:28 UTC (Thu)
by JoeBuck (subscriber, #2330)
[Link] (2 responses)
Microsoft knows that the license is bogus; they paid the cash because it helps their anti-Linux FUD campaign and helps keep SCO alive.
Posted Aug 8, 2003 3:32 UTC (Fri)
by euvitudo (guest, #98)
[Link] (1 responses)
My first reaction is to be very skeptical at every move that these big corporations make. There is always an ulterior motive, and I believe you as well as many others share that opinion. So, where will they put their resources next? But then again, shouldn't we really be working with the hardware makers et al., and help them see the benefit of designing their hardware with Linux in mind. I think this is a much more worthy goal than to try to catch up with the competition, and allow them to influence the hardware makers and friends before we can. (Of course, I am also guilty of following every move the competition makes--something that I should change.)
Posted Aug 8, 2003 7:13 UTC (Fri)
by anselm (subscriber, #2796)
[Link]
Posted Aug 8, 2003 0:15 UTC (Fri)
by cpeterso (guest, #305)
[Link] (4 responses)
http://story.news.yahoo.com/news?tmpl=story2&u=/030807/168/4wymv.html&e=3&ncid=1216
Posted Aug 8, 2003 4:07 UTC (Fri)
by yodermk (subscriber, #3803)
[Link] (3 responses)
If you must post long urls, you can run them through http://tinyurl.com/ and paste the resulting short URL in the comment. Or, and I *think* LWN allows this, just put them in standard HTML "a href" notation. Thanks!
Posted Aug 8, 2003 18:10 UTC (Fri)
by cpeterso (guest, #305)
[Link] (2 responses)
Posted Aug 9, 2003 12:16 UTC (Sat)
by hummassa (subscriber, #307)
[Link]
Posted Aug 14, 2003 10:57 UTC (Thu)
by Wol (subscriber, #4433)
[Link]
I *HATE* full-screen mode! The whole point of html is that the USER should be able to CHOOSE how stuff displays. So long urls that won't wrap and screw up the display show total disregard for the principles behind html. Cheers,
I'm happy to see IBM respond with vigor, but am a little worried about the introduction of patents into the mix. As Bruce Perens recently warned, the patent portfolios of the friends of Linux pose a latent threat to Linux developers and distributors as well.
Happy, but uneasy
Happy, but uneasy
Unfortunately it's the way it works. And the idea of having an idea, patenting it Happy, but uneasy
and living rich the rest of your life is so ingrained in the north american
culture, I don't see it changing any time soon.
So, IBM and others, collect patents for the most arcane ideas. Over 2000 a
year. Sue IBM for any reason and they will put you out of business. That is
why IBM doesn't get sued very often.
This is why most patent suits are now initiated by companies who don't make
anything, essentially lawyer firms. They can't be countersued since they don't
do anything real.
Derek
I have a feeling that the patent points are more of a "Oh yeah? I'll teach you to sue IBM!! Take that!!" sort of thing. These points would never had been brought had SCO behaved.Happy, but uneasy
IBM's and RedHat's filings are certainly interesting. But here is a question I have not seen addressed:A brief look at IBM's counterclaims
"Are we talking about something that could see quick legal action or is all this stuff that won't be heard in court until sometime in 2005 and may be resolved by sometime in 2007? It makes a difference. Anyone have any insights?"A brief look at IBM's counterclaims
These are the patents and what sense I could make of them from a quick glance. They look kind of obvious to me except maybe the first one.
The patents
Looks like IBM decided to cherry-pick four from all over their portfolio (SCO has got to be violating hundreds) that are largely unrelated. This means SCO will have to fight four almost completely unrelated patent battles, and the LZ compression claim is probably so widespread in their code that they've got no hope of winning it.
The patents
So why these particular patents? From their vast portfolio, this is the best they could do?The patents
Seems like they ought to have something more like:
I don't really see where lempel-ziv is absolutely crucial to Open Server. It uses the older unix compress/uncompress.
The patents
> So why these particular patents? From their vast portfolio, The patents
> this is the best they could do?
> this Forbes article about IBM's shakedown of Sun in Sun's early days.
> For SCO to attack IBM using IP is somewhat like trying to eat a live
> tiger.The patents
So why these particular patents? From their vast portfolio, this is the best they could do?
The patents
So why these particular patents? From their vast portfolio, this is the best they could do?
The patents
Am I right that patent #4,821,211 covers (for example) the Start Menu editing functionality in Windows '95 and later or the KDE Control Center? It's really scary that someone tries to enforce a patent like this, even if it is done for the "right cause"... I've just read an
article that Microsoft has to pay about 520 million USD to a Eolas and UCLA, because they use one of Eolas's patents in Internet Explorer. I wonder when will the big companies wake up to the fact, that software patents are bad - even for them - and lobby to abolish this stupid practice.
The patents
IBM and SCO never cross-licensed their patent portfolios? Remarkable.
A brief look at IBM's counterclaims
I don't think SCO has many (any?) patents. They were never an especially innovative company. Not that that's required to get a patent these days.
A brief look at IBM's counterclaims
These three are the only I've found so far:
Three patents possibly held by The SCO Group
Hmmm, seems like the last two would (should?) probably have been transferred to Tarantella, Inc.Three patents possibly held by The SCO Group
Now the US$1M question is: when is Linus going to cease-and-desist SCO from distributing Linux as per their GNU GPL violations?A brief look at IBM's counterclaims
> as seemingly IBM has assigned [FSF] their Linux work copyrightsA brief look at IBM's counterclaims
The header file to which you refer was borrowed from glibc, and therefore (C) the FSF.A brief look at IBM's counterclaims
> IBM has contributed code both under corporate and personal copyrightsA brief look at IBM's counterclaims
where's all this code that IBM gave FSF the copyrights of?
(some say FSF own all of IBMs contributions, I heard FSF owns the s390 port, the Linux source doesn't confirm any of this.)
> but the question is: A brief look at IBM's counterclaims
> where's all this code that IBM gave FSF the copyrights of?
> (some say FSF own all of IBMs contributions, I heard FSF owns the s390
> port, the Linux source doesn't confirm any of this.)
For a port you need gcc and glibc support as well.
Contributions to these projects obviously need to be done by assigning
the copyright to FSF.
ah, yes. A quick grep of the glibc sources shows that the contents of the s390 folders are copyright FSF.A brief look at IBM's counterclaims
> when is Linus going to cease-and-desist SCO from distributing Linux as per A brief look at IBM's counterclaims
> their GNU GPL violations?
That's `Lanham Act', I think, not `Lenham Act'.
A brief look at IBM's counterclaims
In general, typos will get fixed more quickly and reliably if you mail a note to lwn@lwn.net.
A brief look at IBM's counterclaims
My question in this mess is: When will Microsoft sue SCO for selling them a useless license?A brief look at IBM's counterclaims
A brief look at IBM's counterclaims
My argument is that it's all part of the game they play. I agree that they are most likely aware of the uselessness of the license. However, they can claim that they didn't know and most of their cohorts and stock-holders will believe them, and support them in helping the rest of the world finish SCO, making MS look like they are "on our side", and not out to get us.A brief look at IBM's counterclaims
Microsoft can well afford to pay SCO ten million dollars on the off chance. They have A brief look at IBM's counterclaims
enough money to burn.
For you curious types, SCO CEO Darl McBride's photo is featured on Yahoo News. :-)
photo of SCO CEO Darl McBride on Yahoo News
Aaaiiieeee... please, please, PLEASE don't post long URLs in comments! This distorted the display and I had to scroll left and right when reading each line of the article and other comments. Not too much fun!photo of SCO CEO Darl McBride on Yahoo News
photo of SCO CEO Darl McBride on Yahoo News
are you using a 640x480 screen or something? <:-) It doesn't seem unreasonably wide to me, but your suggestion is noted. thanks.
I use big fonts to browse, and I suffer from the same problem. Big URIs or other (OT) Width
stuff without spaces gets horizontally bigger than my 1152x896 screen.
I browse in a WINDOW!photo of SCO CEO Darl McBride on Yahoo News
Wol