The SCO Group has filed its response to IBM's counterclaims; the full text may be
. Since this document is structured as a set of direct
responses to the claims made by IBM, much of what's there must be read in
the context of IBM's
to make sense.
SCO's responses come down to a relatively small set of points, however,
which we will examine here.
One area of dispute has to do with exactly what rights were bought from
Novell in 1995. Novell claims the right to veto some of SCO's actions,
such as the yanking of IBM's AIX license. SCO disputes that claim.
Without access to the actual agreement between the two companies, it is
impossible to come to any conclusion here; this will be a job for the
IBM's claim #16 reads:
16. Linux is an operating system that stems from a rich history of
collaborative development. Linux is a dynamic and versatile
operating system and is, for many, the operating system of choice.
This would seem like a relatively uncontroversial thing for IBM to say.
Even SCO, in the end, has embarked on all this litigation because Linux has
become "the operating system of choice" for many of its former customers.
Here's SCO's response, however:
16. Denies the allegations of ¶16 and alleges that Linux is,
in actuality, an unauthorized version of Unix that is structured,
assembled, and designed to be technologically indistinguishable
from Unix, and practically is distinguishable only in that Linux is
a "free" version of Unix designed to destroy proprietary operating
This is, of course, the company that made a go at developing and selling
Linux for years, even after it obtained its rights, whatever they may be to
the Unix code base.
Much of SCO's response, however, is aimed in a different direction: SCO is,
once again, claiming that the GPL is not an enforceable license. Thus, for
example, when IBM claims:
25. Whereas the licenses for most software are programs designed
to limit or restrict a licensee's freedom to share and change
it, the GPL is intended to guarantee a licensee's freedom to
share and change free software--to make sure the software is
free for all its users. The GPL applies to any program whose
authors commit to using it.
SCO responds with:
25. Admits that the GPL purports to guarantee the right to freely
share and change free software, but denies that the GPL
applies to any program whose authors commit to using it,
denies enforceability or applicability of the GPL, and is
without information sufficient to admit or deny the remaining
allegations of ¶25 not specifically admitted herein, and
therefore denies the same.
In other words, according to SCO, those who write code are not entitled to
attach a license to it, and even if they were, the GPL is not a valid
This anti-GPL rhetoric reaches its peak in the "affirmative defenses" at the
end of the filing:
- The General Public License ("GPL") is unenforceable, void
and/or voidable, and IBM's claims based thereon or related thereto
- The GPL is selectively enforced by the Free Software
Foundation such that the enforcement of the GPL by IBM or others is
waived, estopped, or otherwise barred as a matter of equity.
- The GPL violates the U.S. Constitution, together with
copyright, antitrust, and export control laws, and IBM's claims
based thereon, or related thereto, are barred.
The counterclaims offer no evidence for any of the above claims; they are
simply put out there to stand on their own. The first claim will,
eventually, depend on what a court finds, but many are confident that the
GPL will hold up just fine. The second is ridiculous; whether or not the
FSF is selective in its enforcement of the GPL has no relevance to
how IBM enforces its own copyright rights. Bringing the Constitution and
antitrust law into
it (with the third claim) is new, but SCO's previous reasoning on the GPL
and copyright law has been humorous at best.
In other details, SCO denies that its "letter to Linux users" threatened
any sort of litigation. Strangely enough, SCO has removed that letter from
its web site, making it harder for anybody who might want to check for
themselves. Happily, this SCO v. IBM
site has kept a
SCO also goes to some lengths to try to fight off IBM's patent claims. The
response even alleges that IBM might not own the patents at all.
Most of the defenses seem like a sideshow, however, compared to SCO's
sustained attacks on the GPL. Clearly, the company sees the GPL as an
obstacle that must be overcome. Just why SCO is so eager to see the GPL
defeated is still not entirely clear, however. Perhaps the company simply
wishes to destroy the Linux ecology outright so that there might yet be
room for its outmoded, failing proprietary offerings. Or perhaps SCO is
trying to find a way that it can apply a tax to all Linux shipments. Or
maybe it is all a simply set of delay and FUD tactics while the real goal
is pursued elsewhere. Given that we are facing a concerted attack on one
of the pillars of the free software community - an attack now funded with
another $50 million in investment money - it is proper to be
concerned. Unless the attackers can come up with some better arguments,
however, the GPL looks set to stand for a long time yet.
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