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SCO responds to IBM's counterclaims
The SCO Group has filed its response to IBM's counterclaims; the full text may be
found in
PDF format. 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
amended filing 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 court. 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
system software.
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 license. This anti-GPL rhetoric reaches its peak in the "affirmative defenses" at the end of the filing:
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 copy handy. 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. (Log in to post comments)
SCO responds to IBM's counterclaims Posted Oct 28, 2003 16:53 UTC (Tue) by error27 (subscriber, #8346) [Link] 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 court.Here is a PDF of the agreement. I hadn't seen it before today.
Novell's veto rights Posted Oct 28, 2003 17:11 UTC (Tue) by corbet (editor, #1) [Link] Ouch, that's a painful one to read. Let me go get a couple of aspirin tablets to deal with the eyestrain...I'll be back in a moment.OK, the relevant language would appear to be on page 31:
Buyer shall not, and shall not have gthe authority to, amend, modify, or waive any right under or assign any SVRX License without the prior written consent of Seller. In addition, at Seller's sole discretion and direction, Buyer shall amend, supplement, modify, or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller. In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and hereby is granted, the rights to take any action on Buyer's own behalf. The second sentence would appear to cover it; it seems to say that Novell ("Seller") can tweak the licenses to its heart's content.
SCO responds to IBM's counterclaims Posted Oct 28, 2003 21:44 UTC (Tue) by StevenCole (guest, #3068) [Link] Although hard on the eyes, that document contains some other interesting tidbits.According to this article at The Register, Blake Stowell said this: I have read over SGIs licenses and Ive found no place where it says it is irrevocable. Why would anyone in their right mind sign over a license to anyone that was not revocable?But on page 12 of the SCO/Novell Asset Agreement, section 1.6: License Back of Assets. Concurrent with the closing, Buyer shall execute a license aggreement under which it shall grant to Seller a royalty-free, perpetual, worldwide license to (i) all of the technology included in the Assets...So, legal eagles out there, is there a difference between not revocable and perpetual? If so, what does perpetual mean? If there is a difference between not revocable and perpetual, then perpetual motion machines must easily exist, since if they stop, they were merely revoked, and their perpetuality cannot be questioned. Reductio ad Absurdum
SCO responds to IBM's counterclaims Posted Oct 28, 2003 22:17 UTC (Tue) by Robin.Hill (subscriber, #4385) [Link] IANAL but perpetual is usually used to mean without a time limit. Thus the license doesn't expire. This doesn't, however, prevent the license being revoked. A perpetual motion machine doesn't exist because, without changing the circumstances, the machine will not continue operating indefinitely - a perpetual license will.
SCO responds to IBM's counterclaims Posted Oct 28, 2003 22:20 UTC (Tue) by proski (subscriber, #104) [Link] Legalese is not my native tongue, but maybe "perpetual" means "not ending by default", i.e. not requiring any actions to continue, but possibly subject of termination. In other words, "it's yours until I change my mind" :-)
Perpetual vs. irrevocable Posted Oct 28, 2003 22:51 UTC (Tue) by StevenCole (guest, #3068) [Link] Yes, it looks like you're right. Searching around a little more, on one legal site, I found that perpetual is analogous to a string of infinite length, wheras irrevocable is analogous to a string (of any length) which cannot be cut.Imagine the Native American's surprise, having signed perpetual treaties with the US Government, when they found that these treaties were in fact very revocable after all. Of course, I would make the argument that if the string is cut, then it's no longer infinite and is therefore non-perpetual, which is what was originally promised.
Perpetual vs. irrevocable Posted Oct 29, 2003 0:52 UTC (Wed) by ronaldcole (guest, #1462) [Link] "Of course, I would make the argument that if the string is cut, then it's no longer infinite and is therefore non-perpetual, which is what was originally promised."Your mistake is in assuming that logic is inherent in the law. ;)
Perpetual vs. irrevocable Posted Oct 29, 2003 22:17 UTC (Wed) by bryn (guest, #1482) [Link] If I owned a perpetual motion machine, it could still have an "Off" switch. It just wouldn't come to a halt unless I pressed that switch.
Perpetual vs. irrevocable Posted Oct 30, 2003 1:40 UTC (Thu) by StevenCole (guest, #3068) [Link] That's true, and perpetual licenses sold by Oracle have a clearly labeled "Off" switch. If you violate certain terms, then your perpetual license ends, and that's fair because the "Off" switch is right there in the contract.But the agreement referenced above has no such "Off" switch, and I suspect (but have not seen) that the Unix License which IBM originally made was similar. No "Off" switch on a perpetual anything should equate to a reasonable expectation that the anything will not stop. So IBM may be entitled to additional compensation due to the doctrine of Promissory Estoppel from SCO saying they have revoked a (no off-switch) perpetual license. IBM has already made claims citing promissory estoppel arising from a reasonable expectation that SCO would abide by the GPL. If anyone has a link to IBM's license, that would be interesting reading.
SCO responds to IBM's counterclaims Posted Oct 31, 2003 1:59 UTC (Fri) by giraffedata (subscriber, #1954) [Link] Why would anyone in their right mind sign over a license to anyone that was not revocable?For money?
SCO responds to IBM's counterclaims Posted Nov 5, 2003 14:01 UTC (Wed) by jneves (guest, #2859) [Link] The head of SCO Spain told me today that this agreement was amended in 1996. Anyone knows of that version?
SCO responds to IBM's counterclaims Posted Nov 10, 2003 22:56 UTC (Mon) by jre (guest, #2807) [Link] Yes. This article in Groklaw presents, as text, the amendment to which you refer.In it you will find, among other things, the following: Upon payment to SCO of the consideration in the section entitled "Consideration", IBM will have the irrevocable, fully paid-up, perpetual right to exercise all of its rights under the Related Agreements beginning January 1, 1996 at no additional royalty fee. (emphasis added)
Affirmative defenses tend to push the limit Posted Oct 28, 2003 17:04 UTC (Tue) by freeio (guest, #9622) [Link] The things TSG says in their submissions make any sense only in the context of the "other-worldly" behavior seen in a court of law. It is necessary, especially in the affirmative defenses, to bring up anything you might possibly use in the case, so that the opponents know that the matter is "in play," so to speak. This alerts the opposition to the necessity of preparing to battle on that issue.Now, the fact that the claims made are non-sensical to the most casual observer is most certainly true. But this is a matter before a court of law, and courts are peculiar places, with their own rules and rituals. So do not be surprised that TSG would say these things. Sometimes cases are decided on the basis of minor points of law, and so every minor point must be raised.They are wrong. They are positively evil. But these statements are what one would expect in a no-holds-barred court case. To not say these things is to cede a portion of the ground to the opposition, a priori. The blatant falsehoods perpetrated by TSG give them some chance, however remote, to escape a certain doom. It is up to the community to locate, isolate, and point out every falsehood, so that none get missed. We may despise TSG and all they stand for, and know their every folly, but once a court case is brought, we must win it by the rule of law.
SCO responds to IBM's counterclaims Posted Oct 28, 2003 17:42 UTC (Tue) by jake (editor, #205) [Link] What does it mean to claim that a license under which you are distributing code (not only Linux, but Samba and lots of other GPLed code) is "unenforceable, void and/or voidable"? SCO has distributed tons of code copyrighted by other people under a license they claim is unenforceable. What rights do they believe they have to this code? How are they not the IP thieves they have always tried to claim that Linux developers are? Is there something that can be done by the copyright holders to force them to either: a) admit that they have a valid license (and that they believe the GPL is valid) or b) stop distributing the code?jake
SCO responds to IBM's counterclaims Posted Oct 30, 2003 7:28 UTC (Thu) by amacater (subscriber, #790) [Link] Standard legalese - [If the licence is correct and appears current] itis unenforcable (they can't enforce the licence terms or provisions so it could be struck down) [and/or if the licence is current and appears correct] it is void [and/or if the licence is current and appears correct] it is voidable -
Pay no attention to the man behind the curtain. Posted Oct 28, 2003 18:31 UTC (Tue) by jre (guest, #2807) [Link] "Just why SCO is so eager to see the GPL defeated is still not entirely clear, however."True, but some of us may have a hunch or two. Hmmm ... Who was it who said "The GPL, in my view, is bad in all its dimensions"? LWN is taking the high road here and refusing to speculate on what we know in our hearts is true.
Copyrights at the PTO? Posted Oct 28, 2003 21:51 UTC (Tue) by rise (guest, #5045) [Link] FIFTEENTH AFFIRMATIVE DEFENSE On information and belief, one or more of the copyrights at issue is, or may be, unenforceable by reason of IBM s inequitable conduct, acts or omissions before the United States Patent and Trademark Office.[point originally brought up by a Groklaw poster] Anyone idea why copyrights, which aren't administered by the PTO and by the Berne Convention are automatically assigned without a requirement for filing, could be voided by "inequitable conduct, acts or omissions"? To my limited knowledge voiding copyright is relatively rare and normally involves things like plagarism or deliberately placing a work in the public domain, neither of which would involve the PTO.
The GPL proports Posted Oct 29, 2003 4:43 UTC (Wed) by freemars (subscriber, #4235) [Link] SCO SCO is trying to pull a fast one here. They 'admit' the GPL allows the right to "freely ... change ... software" -- which isn't true. For example, I can't grab some random GPL code, change it, and sell binaries while hiding my changed source code. I think they are trying to get "You can do anything you want with GPL code" into the court record. Once they have that 'fact' they can show how that could be a Bad Thing.
The GPL proports Posted Oct 30, 2003 2:11 UTC (Thu) by chad.netzer (✭ supporter ✭, #4257) [Link] "freely...share...free software."
What SCO hopes to accomplish Posted Oct 29, 2003 8:56 UTC (Wed) by steveha (guest, #3876) [Link] GPL advocates like to point out that if SCO does manage to crush the GPL, they will then have no license to any of the free software they wish to distribute (e.g. the Linux kernel, which they still do distribute; but also Samba, GNU utilities, etc. that they might wish to include in UNIX). However, as noted on GROKLAW recently, SCO might be attempting to crush the GPL with the expectation that any GPL code will be effectively public domain as a result.This would be almost a master stroke. SCO would not be liable for any copying of GPL code; they could ship their "Linux compatability module" code with impunity. They could ship Samba and even Emacs. They could ship anything they wanted to ship and we could not stop them. Why "almost" a master stroke? Because SCO shipped the Linux kernel, with full knowledge of the fact that the GPL applied to it. SCO not only wants the court to crush the GPL, they also want the court to rule that SCO never meant to ship any of their IP under the GPL, so SCO's stuff is not public domain, and they can charge for it. I am not cynical enough yet to think that this could really happen, or at least that it wouldn't survive the appeals process if it did. (And PJ of GROKLAW already researched the judge who is hearing this case; it's hard to imagine this judge permitting SCO to do everything it is hoping to do.) steveha
What SCO hopes to accomplish Posted Oct 29, 2003 14:19 UTC (Wed) by southey (subscriber, #9466) [Link] However, crushing the GPL is one thing, SCO will still have to battle copyright law. IANAL but I would think that an invalid license doesn't change the copyright situation especially since the copyright violations have far more power than the GPL. Unless SCO can get Linux (and BSD) ruled a derivative work of the UNIX code.
SCO trying to put Linux in the public domain? Posted Oct 30, 2003 4:39 UTC (Thu) by kitterma (subscriber, #4448) [Link] WRT the theory that SCO may be trying to put GPLed code into public domain, here's the article: http://www.groklaw.net/article.php?story=20031028130705694
SCO responds to IBM's counterclaims Posted Oct 30, 2003 9:02 UTC (Thu) by maxx (subscriber, #14608) [Link] Supposed the Judges decide in favour of SCO that the GPL is not enforcable and - worst case - place GPLed code older than 3 years in public domain and Microsoft uses some of that code in Longhorn, what does that mean?Easy: No Longhorn in EU since there is GPLed code by EU citizen inside and even if the code is public domain in the US it is not in EU since the US cannot restrict my rights withing EU and I still have the right to not allow them to use it. I only need to have written one in 10 Millions of lines and I can stop them to ship their product. However to file for damages all authors need to stand up. So how much is a Microsoft or SCO or... product worth if it cannot be sold within EU (and propably Japan, Australia,..... as well)? Still I wonder if I can file a lawsuit against the US for violation of my intellectual property by placing it in public domain.
SCO responds to IBM's counterclaims Posted Nov 6, 2003 14:21 UTC (Thu) by blane (guest, #16587) [Link] Still I wonder if I can file a lawsuit against the US for violation of my intellectual property by placing it in public domain. Funnily enough I was wondering the same thing a few days ago. It's a messy area - if we make a (big) assumption that the courts decide in SCO's favour - do they have any right to put into the public domain any code which has non-US contributors - they would then be effectively over-ruling copyright internationally (if the code is in the public domain in the US, it is effectively PD anywhere). Does any country have the right to do this? I would hope not.
SCO responds to IBM's counterclaims Posted Nov 6, 2003 15:05 UTC (Thu) by cypherpunks (guest, #1288) [Link] I don't mean this flippantly or facetiously: this is the US we're talking about. They have a long history of ignoring international law and violating international treaties. Whether or not they have the right to do something is separate from whether or not they will do it.
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