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
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