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IBM Files New Claims Against SCO in Linux Case (Dow Jones)
According to this Dow Jones
story (on Yahoo), IBM has filed a new set of counterclaims against
SCO. "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." So it
looks like another GPL-based claim.
(Log in to post comments)
Copyrights Posted Sep 26, 2003 11:25 UTC (Fri) by Ross (subscriber, #4065) [Link] That's strange. I thought IBM donated its kernel contributions to the FSF. Or did they only donate some of them (the OS/390 stuff)?
Copyrights Posted Sep 26, 2003 11:45 UTC (Fri) by phython (subscriber, #3278) [Link] As far as I can tell only the gcc/binutils/glibc work by IBM has been assigned to the FSF. As for the s390 kernel port, arch/s390/lib/memset.S is copyright IBM.
Copyrights and GPL Posted Sep 26, 2003 11:52 UTC (Fri) by busigia (guest, #15461) [Link] IBM's contributions to linux are neither transfers, nor assignments of ownership, as I understand it. Licensing contributions under GPL does not surrender ownership rights to code.GPL grants use under specific conditions. SCO allegedly violated the specific conditions of use under GPL, and so violated the rights not only of IBM, but also potentially the rights of all contributors of code in the distribution. IMHO - Theoretically, IBM could probably launch a class action suit instead of just defending their own rights, as this lawsuit appears to represent. IBM lawyers are better holstered to procede on these individual lines though.
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 12:09 UTC (Fri) by dwalters (subscriber, #4207) [Link] > IBM's contributions to linux are neither transfers,> nor assignments of ownership Not strictly true. My understanding is that many contributors (including IBM) have assigned all copyright ownership rights to the FSF for some of their work. When they do that, they are no longer the legal owners of that work, so they can't file a misappropriation complaint for such code. However, they haven't assigned the copyright of ALL their contributions to the FSF, so they can file a complaint pertaining to the contributions for which they still own the copyright (and they clearly have done so). I believe this raises an interesting point. IBM thought they were doing the right thing by assigning the copyrights of (some of) their kernel contributions to the FSF. But the FSF does not have the same financial clout as IBM to pursue copyright infringement claims, so perhaps the community as a whole is better off if IBM hangs on to the copyright of their kernel contributions in future, since it really makes no difference in terms of how free the code is once it's released under the GPL, whether it's owned by FSF or IBM, right?
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 12:19 UTC (Fri) by hazelsct (subscriber, #3659) [Link] Indeed -- and some individuals assign copyrights to the FSF because that organization has more financial/legal clout than the individual! How ironic that the tables turned here, in a sense...
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 12:30 UTC (Fri) by namaseit (guest, #13940) [Link] Incorrect.You do not lose your rights to the copyrights, you only put them under a contract of distribution and modification. "Releasing software under the GPL is not the same as releasing it into the public domain. Authors retain their copyrights to software licensed under the GPL. Even when authors assign their copyrights to someone else, such as to the Free Software Foundation, the copyrights remain valid, but with the new owner. Therefore, subsequent to termination of your permissions under the GPL, you are in the unhappy position of violating the copyrights of the software authors, if you continue to distribute their software. Under copyright law, you are not allowed to distribute at all without their permission -- and they have chosen to grant that permission only by means of the GPL." www.groklaw.com
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 12:40 UTC (Fri) by Ross (subscriber, #4065) [Link] You are confusing putting something under the GPL with assignment of copyright.Assigning a copyright means giving another person or legal entity the rights granted under copyright law. It is true that the FSF has a copyright assignment form which also grants most of those rights back to the author. So the original author can use the work however they want including putting it under a different license than the GPL. But that is not the same as being the copyright holder. The question is, does the assignment form somehow let the original author still file copyright infrigement lawsuits? If so how?
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 12:48 UTC (Fri) by namaseit (guest, #13940) [Link] It is just a matter of whether whether or not the person or corporation inquestion is in violation of the GPL. If they are in violation of the GPL then they have lost the right to distribut the code and continuation of distributing the code is against 'copyright law'. The GPL uses copyright law. Since the author's still retain the right of that code and that copyright, they have the right to pursue damages for the violation of the GPL. GPL is just an extension of the already existing Copyright system. GPL is just a contract that dictates distribution and modification rights. It does not change ownership of copyrights.
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 14:09 UTC (Fri) by Ross (subscriber, #4065) [Link] I completely agree with you about the GPL. We are in violent agreement.But what we were talking about a few posts earlier was not putting code The only reason I brought it up is that under US law (to my knowledge and The implication was that the FSF should have been filing the lawsuit not There are multiple reasons it didn't happen this way, and I was just curious which one it was: a) Maybe IBM didn't transfer all of their kernel changes to the FSF
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 12:47 UTC (Fri) by fergal (subscriber, #602) [Link] The point is that for some of their code they released it under the GPL and assigned the copyright to the FSF. Nobody is suggesting that you must assign your copyright when you GPL. However you can choose to assign it to another person or organisation. Why would you do that? Because that other organisation may be in a much better position to defend your code than you are, they may already have expert lawyers and people to work full time on the case, whereas you may have a day job and a mortgage. The FSF can/will only defend code that has been assigned to them. So it makes sense to do this, unless you have plans to license your code under another license too. The "funny" thing here is that IBM is probably much better able to defend their code than the FSF so perhaps they should GPL but not assign to the FSF in future, or better still, GPL, assign and give big wodges of cash to the FSF.
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 12:48 UTC (Fri) by LinuxLobbyist (guest, #6541) [Link] IncorrectThat's a bit broad. ;-) The poster you're responding to was talking about copyright assignments. I don't think anyone here is saying that by licensing your own code under the GPL, you lose rights to your own code. It is only by transferring the actual copyrights (and in the process, producing a sometimes useful paper trail) that you no longer 'own' the code. In those cases, you cannot file an infringment claim against anyone for the code you no longer own. Only the new owner can. But this is completely separate from the GPL. All that matters, though, is that it's clear that IBM has not, in fact, transferred copyrights of all of its Linux contributions to the FSF. Someone else said that it was only its contributions to the toolchain (S/390?) that have been assigned to the FSF. What's clear is that at least some code within the Linux kernel is IBM owned (copyrighted) and that's what the company is suing SCO over in this case. I'm sure that Bruce Perens and others in the FLOSS world will agree with me here that this highly preferable to IBM's previous countersuit using patents as a weapon. With this and its response to HP's Linux indemnification ploy, IBM just earn huge points in my book for really getting Free Software.
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 13:06 UTC (Fri) by namaseit (guest, #13940) [Link] I do see your point as well, mine is just the as of that quote from groklaw above. I see it that even though you have assigned your copyright to FSF that in the event of breach of contract (GPL) that the auther may still pursue damages. Which I was replying to , "When they do that, they are no longer the legal owners of that work, so they can't file a misappropriation complaint for such code."From what groklaw stated, the author's do not lose that copyright. "Releasing software under the GPL is not the same as releasing it into the public domain. Authors retain their copyrights to software licensed under the GPL. Even when authors assign their copyrights to someone else, such as to the Free Software Foundation, the copyrights remain valid, but with the new owner. Therefore, subsequent to termination of your permissions under the GPL, you are in the unhappy position of violating the copyrights of the software authors, if you continue to distribute their software. Under copyright law, you are not allowed to distribute at all without their permission -- and they have chosen to grant that permission only by means of the GPL."
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 14:15 UTC (Fri) by Ross (subscriber, #4065) [Link] Yes, but the text you are quoting is not talking about the situation you are talking about. It is talking about using the GPL. SCO had claimedthat Linux people were saying that the GPL forced the author to assign copyrights. It doesn't. But of course we weren't saying the GPL did that either. SCO was confused about the requirements of the GPL, or at least pretended The part of the Groklaw quote that does talk about assignments is only
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 18:13 UTC (Fri) by dwalters (subscriber, #4207) [Link] The Groklaw quote you mentioned: is not 100% correct. More accurately, I believe it should read: Of course, most of the time, the author and the copyright holder are one and the same person.
Copyrights and GPL - perhaps IBM should hang on to copyrights in future Posted Sep 26, 2003 14:28 UTC (Fri) by dwalters (subscriber, #4207) [Link] > Incorrect. I don't believe anything I said was incorrect. I believe I fully understand the GPL (well, at least I scored full marks on the GNU's Free Software Licensing Quiz :-), and I think I have a good grasp of copyright issues. An author can (and many have) assign the copyright ownership of any work to another person or legal entity (such as the FSF). When you do this, you've essentially transferred all rights under copyright law to the recipient. The point is that when a work is released under the GPL, it is just as free (as in freedom), and will always remain free, whoever holds the copyright. However, it's only the legal copyright owner (not necessarily the same as the original author) who has rights under copyright law to sue infringers.
IBM and FSF work hand-in-glove on GPL enforcement Posted Sep 26, 2003 13:32 UTC (Fri) by emk (subscriber, #1128) [Link] Although you'd never guess it from listening to Stallman, the FSF is an extremely savvy and diplomatic organization, and it works closely with all sorts of people--free software developers, coporations, and IBM legal.I'm sure that the decision to transfer copyrights from IBM to the FSF was made after very careful deliberation by very smart people.
IBM and FSF work hand-in-glove on GPL enforcement Posted Sep 26, 2003 15:33 UTC (Fri) by donwaugaman (subscriber, #4214) [Link] It didn't take that much deliberation, because gcc/binutils/glibc/etc. are part of the GNU project. As such, they will not accept code from anyone who has not given a copyright assigment for that code to the FSF[*]. If you want to contribute to any GNU project software, particularly core parts like the above, you either sign the assignment or don't contribute.Linux, on the other hand, is not part of the GNU project, and so a copyright assignment is not necessary for Linus to roll your patch into his kernel. So IBM can keep copyright on its contributions, though they must be GPL licensed. Thus, IBM has standing to invoke the GPL against SCO (as does anyone else who has contributed to the kernel). [*] except for the case of "trivial obvious" patches (e.g. spelling errors, misplaced semicolon, etc.) which they will bend the rules on. But if you're thinking of tacking on a new switch, or building a new optimization pass for a compiler, it's assign or don't contribute.
Copyrights Posted Sep 27, 2003 17:13 UTC (Sat) by hs (guest, #15495) [Link] afaik, IBM assigned its gcc (and related GNU projects) copyrights to the FSF (I think the FSF requires that for contributions to GNU projects, probably for good reasons). assigning rights to kernel code wouldn't make much sense: the kernel uses the GPL, but isn't a GNU project
The Real Point is, the GPL will be tested Posted Sep 26, 2003 12:46 UTC (Fri) by RobDavies (guest, #9930) [Link] If IBM win this case, then the doubt on GPL enforcability will be removed.If they loose I guess, copyright holders will convert to use another license, or the GPL will be patched to plug the loophole.
The Real Point is, the GPL will be tested Posted Sep 26, 2003 12:47 UTC (Fri) by RobDavies (guest, #9930) [Link] The article couldn't have put it less clear though, SCO loose right todistribute the copyrighted work of others, granted to them by the GPL, because they have attempted to license it under other terms.
Clever, damn clever Posted Sep 26, 2003 13:22 UTC (Fri) by jdrabik (guest, #15459) [Link] Brilliant is a better word. It amplifies a point others make, that SCOldera could not have unwittingly contributed GPL code, that even if they did they cannot claim protection due to their own unclean hands and failure to attempt to mitigate damages, and that they are (in the words of some) "lying". That IBM hit SCO with their own license too, is just absolutely fantastic.SCO employees were contributors and were openly praised by management - a fact they try to hide on the website, via threats to WayBack, etc. Evidence withholding? IANAL, but it reeks. And what of modified materials that remain - evidence tampering? Again, IANAL: you'll have to decide yourself. SCO and Caldera benefit from open source code even to this day: because of their GPL releases, or, the corresponding invalid release of other GPL code. Co-opting the works of others, and either falsely claiming credit, or wantonly misleading customers and investors? Hmmm, IANAL, you decide. All of which ignores involvement of employees like Blake Stowell, and Canopy people such as Ralph Yarrow or Ryan Tibbits, with companies like Lineo, which distributed code under GPL with the knowledge, consent, and praise of those same people. Did Yarrow assist in the sale of Lineo? Did Tibbits assist in creation of Lineo's "GPL indemnification" plan? Did Blake Stowell promote it? Did any company take advantage of it, and if so, could they or another company (like Metrowerks, which bought Lineo) become ultimate owner of the entire SCO and Linux code even if SCO prevails - and demand indemnification from SCO and Canopy to boot? How delicious! Ransom notes that the trouble began far before SCO execs admit now - not surprising, given the potential insider trading ramifications. Or the possible problems it could raise for Canopy with regards to sale of Lineo. Ransom's interview is a nice start. Now, it's time for other Caldera and Canopy people to step forward and do the right thing. Where is Bryan Sparks? Tim Bird? Allan Smart? Is Ransom the only one trying to save his soul? The SCO suit has been a stain on the State of Utah and the LDS Church (which invests in Canopy) since the day it was launched. Between Ransom stepping up to the honesty plate, and IBM's brilliant move, maybe we can put an end to the FUD that has been the hallmark of SCO activity lately. For the record: I'm a former Caldera Thin Clients employee, a former CTO from Lineo, and like Ransom, I no longer own a single share or option of stock in any above-named companies. I also don't believe SCO has a good legal case, a good technical case, or a good business model if that model is "money through litigation". Don't ask me what I think of their ethics, OK? John Drabik
Clever, damn clever Posted Sep 27, 2003 15:05 UTC (Sat) by erat (guest, #21) [Link] Bryan Sparks is now part of another (partially) Canopy funded venture: DeviceLogics. AllanSmart is employed by Canopy. I don't recall where Tim Bird went after leaving Lineo, but if he doesn't want to speak up I wouldn't push him to do so. Just fillin' in some blanks...
Re: Clever, damn clever Posted Oct 9, 2003 19:39 UTC (Thu) by roelofs (subscriber, #2599) [Link] Tim Bird is now at Sony and is a co-chair of the CE Linux Forum's Architecture Group:
http://www.techweb.com/wire/story/TWB20030701S0007
Indemnity Posted Sep 26, 2003 13:28 UTC (Fri) by dkite (guest, #4577) [Link] This SCO stuff still has the ability to amaze. IBM, yes IBM is countersuing based on GPLviolations. IBM won't indemnify customers because they can't, not because of legal concerns, but not wanting to box their customers in, denying them one of the benefits of free software. IBM gets it. Amazing. Derek (who survived bullies at school by having big friends)
Indemnity Posted Sep 26, 2003 14:32 UTC (Fri) by dwalters (subscriber, #4207) [Link] Yes, IBM really do seem to get it.Whether you judge them by their words or deeds, you can't fault them (although I do have to hold my nose when they use software patents as a legal weapon).
Indemnity Posted Sep 29, 2003 5:29 UTC (Mon) by sveinrn (subscriber, #2827) [Link] HP idemnifying Linux-users got lots of positive media coverage and could be the primary reason for the recent drop in SCOX stock value. I find groklaw's coverage of the subject extremely unfair. Idemnification can be one of the things that really hits SCO where it hurts.But if IBM is unable to do this for legal reasons, that is of course OK to me!
Open season Posted Sep 26, 2003 23:16 UTC (Fri) by bojan (subscriber, #14302) [Link] When IBM said they are going to defend themselves vigorously, that's exactly what they meant...I have claimed that before, and it now seems to be reality, every single Linux contributor can sue SCO for copyright infringement. After all, SCO is attempting to license copyrighted work of those people under a licence they did not agree to. And that is, quite clearly, copyright infringement. How will SCO get out of this one is anyone's guess, but I wouldn't be surprised to see other copyright holders to do the same - sue SCO for copyright infringement. I have tried to convince Australian Attorney General's Office that SCO are in breach of copyright by doing this, but they wouldn't go for it. Their response was that "it wasn't clear". Maybe now they'll listen more closely...
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