IBM's memo in support of its motion for a partial summary judgment on its
copyright counterclaims is now available, via Groklaw, in plain
. This one is truly worth a read; it is far shorter than
the complex memo for IBM's other motion (the attempt to do away with the
breach of contract charges), and it shows just how a GPL infringement case
can be brought to court. SCO, which has made its disdain for the GPL clear
over the last year and a half, is going to have an interesting time trying
to dance around this one.
Summary judgment motions depend on the lack of a dispute over the relevant
facts, so IBM leads off with its list of the facts which, it says, are
undisputed. The very first one is a statement that Linux development
started with Linus; this, of course, is very much a disputed fact in many
circles. The SCO Group, however, is unlikely to have a great interest in
ensuring that the GNU Project gets proper credit for its work, and thus
will probably not make a big deal out of this issue in court.
IBM goes on to list its contributions to Linux; these include the
Enterprise Volume Management System (which was never actually merged into
the kernel), PowerPC64 support, the Omni print driver, JFS, PCI hotplug
support, and more. Copyrights for all of these contributions have been
registered. Each contribution is also listed with the exact number of
lines of code; IBM is showing that it is possible to be specific about such
topics. IBM points out just where SCO has distributed copies of each of
the claimed contributions to Linux.
The final set of "undisputed facts" has to do with the GPL and SCO's
actions relative to the GPL. IBM notes that it has not authorized the
copying, modification, or distribution of its code except under the terms
of the GPL. SCO, meanwhile, has denied the validity of the GPL and has
attempted to add restrictions to IBM's GPL-licensed code by way of its
lawsuit threats and "Linux license" scheme.
Several paragraphs describing SCO's activities have been redacted from the
publicly-available version of the memo. It would be most interesting to
know what IBM is arguing that cannot be made available to the world as a
With the "undisputed facts" in place, IBM moves on to the "argument"
portion of its memorandum. The first step is to reiterate that IBM owns
its copyrights, and that SCO has, beyond doubt, redistributed the code.
The full memo includes a "side-by-side comparison" of IBM's code with the
version that appeared in SCO Linux Server 4.0. This step may have been a
bit more than was truly necessary, given that SCO does not dispute that it
distributes Linux, but IBM is being sure that all the bases are covered.
IBM still has to show that SCO's copying was copyright infringement,
however. So that's where the argument goes next:
As stated, IBM has not authorized the copying, modification, or
distribution of the IBM Copyrighted Works, except pursuant to the
terms of the GPL or LGPL. SCO does not have permission or any
license to copy, modify, or distribute the IBM Copyrighted Works
for at least two independent reasons: (1) SCO has repudiated
and disclaimed the GPL (and thus also the LGPL) as a source of
legal rights, and (2) SCO has breached the GPL and LGPL and
thus lost any rights it might have had under the GPL or LGPL.
The first argument is interesting. IBM has no trouble citing statements
from SCO challenging the validity of the GPL; some of them appear in SCO's
own filings in the same case. But the argument that, by publicly trashing
the GPL, SCO has forfeited its right to distribute GPL-licensed code does
not convince everybody. The case law on the subject appears to be
inconclusive; there is no real way to know how the court will treat this
argument until the time comes.
The second part of the argument - that SCO has flat-out breached the terms
of the GPL - is more straightforward. SCO has very clearly attempted to
impose additional restrictions on GPL-licensed code, and that is not an
action that the GPL allows. IBM should have little trouble establishing
this breach as a fact.
Inquiring minds are most curious to see how SCO will respond to this
argument. SCO's lawyers would appear to have these options:
- Argue that SCO could not have breached the GPL, because the GPL is
not a valid license. As has been pointed out many times, this
argument puts SCO into a position of clear infringement: if the GPL is
not a valid license, then SCO has no license to distribute IBM's
- Argue that SCO has adhered to the terms of the GPL. The facts say
otherwise in the strongest of terms, however; every time SCO states
that Linux cannot be used without an additional license - while still
distributing the code in question - is a clear breach of the license.
- Argue the the GPL gives SCO the right to redistribute the code, but
that the GPL's prohibition on additional restrictions does not apply,
or cannot be enforced. This argument would be an attempt to get the
court to turn the GPL into something closer to the BSD license.
The third alternative above is the only one which holds out any hope for
SCO in this case. Given that the U.S. courts have, in general, not been
hospitable to the idea of rolling back the rights of copyright holders, it
seems unlikely that this court would take a different tack now. It is also
hard to see how the court could strike sections of the GPL without creating
grave difficulties for many other software licenses.
So SCO is unlikely to prevail in an attempt to disable the operative terms
of the GPL - in the long term. What SCO might be able to do is to
create enough confusion around the issue that the judge is unable to hand
down a summary judgment. In that case, IBM would have to argue its case in
a full court trial next year, and SCO would get some breathing room to
continue its campaign.
Such an outcome seems improbable, however. The facts seem clear, and SCO
appears to be very much on the wrong side of them. In your editor's
untrustworthy opinion, IBM seems much more likely to prevail on this motion
than on its companion motion regarding the breach of contract claims. That
result would clearly paint SCO's actions as an infringement of
copyright, and it would put an end to SCO's attempts to put a tax on
Linux. At the same time, it would put an end to claims that the GPL has
never been tested in court. That would, needless to say, be an interesting
Comments (20 posted)
The hearing date for IBM's motion for a partial summary judgment on its
tenth counterclaim (seeking a declaration that none of its Linux activities infringe upon
SCO's copyrights) and SCO's attempt to dismiss that counterclaim is
coming. So the memos to the court are flying in all directions.
SCO has filed its reply
memorandum (PDF format) in support of its motion to dismiss or stay count ten. Therein,
SCO claims that IBM's counterclaim is not "compulsory," that, instead, it
is unrelated to the main case and could be considered separately. SCO says
that IBM's counterclaim adds "undue complication and complexity" to the
case, and thus should be dismissed. SCO wants the issue to
simply go away.
IBM has also filed a
reply memorandum (PDF); this one is in support of its motion for a
partial summary judgment on the tenth counterclaim. It makes for
interesting reading; IBM is putting its full strength into ripping apart
SCO's claims. IBM's reasoning is, essentially:
- SCO has made repeated public claims that the Linux kernel contains
code copied directly from Unix, so the issue is relevant.
- SCO has never shown any evidence that this copying has occurred, and has no such
evidence to show.
- The only thing that was even close to evidence was a declaration by
Sandeep Gupta. IBM says it should be ignored because it was filed too
late, because Mr. Gupta has no personal knowledge that would make him
an expert witness, and the approach he used to compare Unix and Linux
code is flawed.
In support of its position, IBM has submitted a declaration from one
Brian Kernighan on the flaws in the code comparison methodology and
stating that Mr. Gupta's results are incorrect. When it comes to Unix
code, one might assume that Mr. Kernighan has a bit of expertise to
- SCO's claims that it needs more time for discovery are bogus because
SCO has been saying for over a year that it has tons of evidence
- SCO did not even bother to try to answer most of IBM's "undisputed
facts," and its filing was not organized properly.
- SCO can't even put up convincing evidence that it owns the copyrights
The memo goes on for 56 pages; it is an interesting read. It has long been
clear that SCO management's public statements would come back to haunt the
company; IBM is now doing its best to make that happen.
IBM has also been busy trying to strike the declarations SCO has been
filing in support of its positions. IBM's reasoning is usually that the
person making the declaration is in no position to know what he is talking
about. For some amusement, see this
version of John Harrop's declaration posted on Groklaw; all of the
portions which IBM wishes to strike have been indicated there. If IBM is
successful, little of the declaration will remain.
SCO is due to report its third quarter results. That announcement will,
according to this press
release, happen on August 31. SCO should be able to show more
SCOsource income this time around, since the money from EV1Servers.Net
should finally appear in its accounting. It is hard to imagine the numbers
as a whole being good, however.
SCO has announced,
again, that it has made peace with BayStar. It might have actually
happened this time.
Comments (3 posted)
The best way to understand what a case means if, like me, you aren't a
lawyer, is to ask some. In the recent decision
in MGM v. Grokster et
al, filed on August 19, it's easy to do so, because there were amici
briefs filed by law professors on both sides of the question. There is no
better way to understand what a case is about than to read such
briefs. The Electric Frontier Foundation, which represented StreamCast
Networks, Inc., one of the victorious defendants, has made the legal documents
On MGM's side, 9 law professors submitted an
amicus brief explaining why they felt the lower court had made a
mistake in granting Grokster and StreamCast a partial summary judgment and
requesting that the Ninth Circuit Court of Appeals reverse the decision.
On the other side, 40 law professors submitted an opposing amicus brief, supporting the lower
court's decision and urging the Ninth Circuit Court of Appeals to affirm
it. Both groups tried to persuade the three-judge panel that the law was
on their side.
All of this goes to show you that the law is not reliable like math. You
don't ever want to plot a course to Mars based on legal opinions, because
you might not arrive safely at your destination. You can always find a
lawyer somewhere who will argue a side, both sides, or all sides of any
issue. In the Grokster case, some of the finest lawyers in the world
contributed their thoughts, on both sides, making it one of the most
interesting and significant cases of the year.
The appeals court decision was extraordinary, in that they accepted what
can best be described as arguments you can find in Larry Lessig's book,
"Free Culture," argued most ably by EFF's Fred von Lohmann for StreamCast
and Michael Page of Keker & Van Nest for Grokster. The oral arguments are
a delight to listen to, and EFF has them available as Ogg, WMA and MP3 files. Groklaw has made an unofficial transcript of the proceedings.
The court decided to draw a line in the sand and tell the Hollywood
copyright forces that their push to extend and morph copyright law beyond
its current borders, in effect to rewrite the Supreme Court's 1984 Sony-
Betamax decision (Sony Corporation of America v. Universal City
Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 ), so as to
make it easier to go after contributory infringers, was unacceptable.
Sony held that as long as a technology has substantial non-infringing
uses, it can't be held liable for copyright infringement by users. The
Hollywood copyright forces were trying to get the court to accept instead
the new idea that if infringement levels reached a certain percentage,
then manufacturers and programmers could be held liable.
Remembering that this is the same appeals court that upheld
Napster, it's an extraordinary development and, in my opinion, a most
significant victory, particularly for programmers, who stood to lose a
great deal had the case gone the other way. Why? Because the copyright
forces wanted to hold distributors of software tools -- and that means
programmers too, not just companies -- liable for the infringements of
It was nothing less than an attempt, as the ruling put it, to get the
judiciary to fashion a new way to go after distributors and programmers
for vicarious and contributory copyright infringement. Why? Simply
because, as the law professors on MGM's side delicately put it, such a
transmogrification would satisfy "the policy interests of indirect
liability -- particularly for online infringement, where locating, suing,
enjoining and recovering from millions of direct infringers is extremely
difficult and inefficient."
In short, MGM and the music industry wanted the courts to make it easy for
them. Going after the actual infringers on P2P systems is hard and
expensive. So, they asked the court to let them go after those making and
distributing software that some might use for the infringement instead.
The conceivable consequences of such an expansion of vicarious liability
were set forth in oral argument by Mr. Page:
To expand the
law of vicarious liability, to attach liability to
anyone who in theory could have acted as a policeman, leaves no border
it at all and leaves every technology vendor, every inventor, every
the mercy of copyright holders who want to look around and go, 'You
done something about this. You're liable.'
The court refused, based on the Sony-Betamax case, telling them to get
Congress to fashion a more nuanced remedy than any court can give.
Distinguishing the technology of Napster from that of Morpheus and
Grokster (the centralized server in the former), the court noted that 10%
of files shared on the systems are non-infringing, which is, in the words
of Judge Noonan in the oral hearings, "a lot of files".
The court accepted the argument that every new technology is met by the
music and entertainment industry with cries of theft and predictions of
copyright doom along with demands that courts shut down the new
technology. This happened with the invention of cassette recorders, VCRs,
radio, and cable, as Lessig points out in "Free Culture". But throughout
history, US courts have been loathe to kill a new technology just to
satisfy the old, vested interests affected by the new tech. Once again,
the court has told those clamoring for a judicial remedy that they must
seek a remedy in the legislature, if any is to be found.
Jason Shultz, an attorney with EFF, explains the significance of the
Grokster decision, particularly to programmers:
One of the biggest wins in Grokster for programmers was the explicit
rejection of two principles that the RIAA and MPAA were pushing the Court
to adopt in order to 'update' the Sony Betamax rule. If either rule had
been adopted for Peer to Peer companies, it would have applied to
programmers as well. Both rules would have been disastrous.
1) The first was that makers of technology (including programmers) should
be liable for the infringements of their users based on the proportion of
users who use the technology to infringe, instead of whether or not the
code is merely capable of substantial non-infringing uses. The Plaintiffs
argued that since over 90% of P2P users infringed copyright, that was high
enough to hold the programmers and distributors liable. This would have
been a very dangerous rule for any programmer, especially those who
release open source code, because it is almost impossible to predict all
the ways in which your users will employ your code. . . . [T]o hold . . .
programmers . . . liable for the future, unpredictable and unintended uses
of code would change the legal landscape of programming dramatically and
make it a very dangerous road to go down. Fortunately, the Court rejected
this attempt to 'update' Sony Betamax and stuck with the time-honored rule
that any technology with a substantial non-infringing use cannot be held
contributorily liable for infringements by end users.
2) The second major victory was an explicit rejection of the RIAA/MPAA's
other proposal --- that under vicarious liability, programmers and
distributors of technology should be held liable for end user
infringements if they could have re-designed their products to allow less
infringement, but didn't. In this case, the MPAA/RIAA argued that the P2P
companies could have forced updates on users that installed filters into
their programs to filter out copyrighted works, but didn't. This 'willful
blindness', Hollywood argued, should make the P2P companies responsible
for the infringements of their end users. Such a ruling would have been an
absolute nightmare for any programmer, not only because again, it is
almost impossible to predict all the ways one will use a program to
infringe and then preemptively restrict them, but also because the reality
is that no venture capitalist will fund a software project in such a
world. If programmers and companies are liable unless they make their
programs as incapable of copying as possible, very few programs will ever
be written. The only pragmatic way to release a program, then, is to get
MPAA/RIAA approval beforehand -- essentially handing Hollywood veto power
over any new code or program released. Again, the Court rejected this
approach, giving programmers protection from both financial ruin and
attempts to undermine their freedom to write code as they see fit.
EFF took the case for just these reasons. We saw how Hollywood wanted to
change the law and all the bad precedent it would set. So we defended the
P2P companies on these principles in order to protect every technology
maker, including open source programmers. Under the eyes of the law, even
non-commercial open source programmers are no different that P2P companies
and without the legal protections in Grokster, all programmers would
suffer. Thus, EFF stepped up to the plate to defend the freedom to code
They not only stepped up to the plate. They hit a home run. Of course, the
losing side has the option of an appeal to the Supreme Court. And, as it
happens -- actually, I'm sure it's no happenstance -- there is already an
attempt to overturn Grokster's holding, by means of the Inducing
Infringement of Copyrights Act of 2004 [INDUCE], currently working its
way though Congress, with the backing of the RIAA/MPAA. It is sponsored
by Senators Patrick Leahy and Orrin Hatch, who has said it
is explicitly meant to reverse Grokster, so as to accomplish the very
things that the Ninth Circuit Court of Appeals just rejected. Such a law
would find companies and programmers liable if they release code that
makes it easier for copyright infringement to occur, although in light of
this stunning Grokster ruling, they may find it is a harder sell now,
since its language, as well as Mr. Hatch's in pushing it, contradicts the
Ninth Circuit Court of Appeals' decision.
Yes, that Mr. Hatch, the father of one of the attorneys representing
SCO, Brent Hatch. The apple doesn't fall very far from the tree.
In a case like this, it makes sense to distribute the result via the
available peer-to-peer networks. So, for those whose browsers are set up
for such things, the EFF has published a magnet
link and an ed2k
link for downloading the decision.
It doesn't hurt to boost the clearly non-infringing content available on
P2P networks. One thing about the Hollywood copyright sharks: you can
be sure they'll be circling back around.
Comments (13 posted)
Novell announced its 3rd quarter financial
results on Thursday of last week. To get some additional information on
Novell's results, we spoke to Novell spokesperson Bruce Lowry about the
results, and how the purchase of SUSE Linux and Ximian is working out for
First on the agenda was Novell's financial results. Novell brought in $305
million in the third quarter, with a profit of $23 million, compared to
$283 million in the third quarter of 2003 and a loss of $12 million during
that period. Part of Novell's overall profits this quarter resulted from
one-time payment of $19 million from The Canopy Group.
Overall, Lowry said that the company was happy with the profit from the
third quarter, but "a little disappointed with the top-line revenue
number." He explained that the sales of the company's Netware
products had slowed their decline in recent quarters, but resumed a 12
percent decline in sales in the third quarter.
While Novell's other product lines have not been meeting expectations, SUSE
Linux provided a welcome boost to Novell's bottom line this quarter. SUSE's
revenues were up $2 million in the quarter, a 20 percent increase from the
second quarter. A big factor in SUSE's increased revenues was a single
customer that ordered 12,000 subscriptions to SUSE Enterprise. Lowry
wouldn't disclose the customer's name, but said that the customer is a
venture-backed company using SUSE in a "ASP sort of
The $12 million in revenue from SUSE products broke down into three parts,
$4 million was from subscription revenue, $5 million was from SUSE retail
sales, and $3 million included "tech support alliance fees and other
software products from SUSE Linux." Lowry noted that the SUSE
subscriptions would continue to show revenue in future quarters, as
subscription revenue is distributed over the life of the subscription
rather than reported entirely in one quarter.
Ximian's revenue is not broken out separately by Novell, as the company
mainly purchased Ximian as "a technology buy."
We basically said that the impact on earnings would be negligible...it's
almost impossible to do that now. The major products were Ximian Desktop,
which we're now combining into SUSE, hopefully later this year. The other
main sort of component was Red Carpet Enterprise... what we did was added
[that] to ZENworks.
We asked Lowry how the integration of SUSE and Ximian into Novell was
going. Lowry said that the Ximian integration into Novell was
"totally complete" and that the SUSE integration is
"moving forward very rapidly," but noted that there was still
work to be done, and that integrating a German company into Novell
presented additional complications.
Lowry declined to offer specifics about the upcoming SUSE release with
Ximian Desktop integrated into the release, saying that Novell was being
"pretty tight-lipped" about the release. However, Lowry said
that SUSE will continue to support KDE and GNOME.
It seems to be an issue that people continue to be hooked on, that we're
trying to get beyond. But, we're trying to give people choice. We'll be
adding the things you'd expect Novell to add... it's obviously going to be
focused on the enterprise user.
We also asked whether the company would also be pushing Mono in its SUSE
product line in order to help adoption of Mono. Lowry said that Mono is not
shipped with SUSE Linux Enterprise Server 9, and said that Novell has
"talked very loosely about it appearing in the desktop."
It's still very much an early stage thing, I have heard talk of pilot
deployments of Mono in corporate environments. It's still fairly
narrow...it's definitely an early stage technology.
He did say that Novell had been using Mono more for internal projects, and
mentioned Novell's iFolder, which is now
written with Mono. Lowry also mentioned the addition
of JBoss to SUSE Linux Enterprise Server 9, and to the next major
release of Novell exteNd as a replacement for Novell exteNd Application
We'll be replacing the proprietary application server in the next major
release, eating our own dogfood. We're going to look at open source and
leverage open source where we can. It makes no sense to try to compete with
a proprietary product in the same place... it's a mixed world. It's hard to
envision a scenario where everything becomes open source.
It should be interesting to see how Novell continues to balance between
open source and proprietary offerings. With iFolder, Ximian's Evolution
Connector, and SUSE YaST, Novell has shown that it is willing to open
source some of its technology when it makes sense for the company to do so
-- and so long as that technology isn't a profit center for Novell.
Unfortunately, Novell does seem to be backing away from support of other
distributions with Ximian Desktop, with only SUSE and older versions of Red
Hat Linux listed as supported.
Overall, though, it seems that Novell's entry into the Linux market has
been both successful and beneficial for the community and has certainly
been beneficial for Novell. Though Novell's income from SUSE is currently
only a small fraction of their revenue, it does seem to be Novell's best
chance for growth.
Comments (3 posted)
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