Your editor has had the opportunity to look at IBM's latest filing in the
SCO case. As is the norm in this case, it seems, IBM pulls no punches.
IBM's counterclaims are strong, and will certainly cause a degree of
discomfort in SCO land.
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:
SCO has misused, and is misusing, its purported rights to the Unix
operating system developed originally by Bell Laboratories, then a
research and development arm of AT&T Corp., to threaten
destruction of the competing operating systems known as AIX and
Linux, and to extract windfall profits for its unjust enrichment.
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.
Moreover, key developers and influence leaders in the open-source
community, including leaders of Linux kernel development, have
stated publicly that they are prepared immediately to remove any
allegedly offending material from the Linux kernel. Rather than
permit remediation or mitigation of its alleged injuries (which are
non-existent), SCO has declined to reveal the particulars of the
alleged violations in order to artificially and improperly inflate
the price of its stock.
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.
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