SCO responds to IBM's counterclaims
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:
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:
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:
SCO responds with:
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 General Public License ("GPL") is unenforceable, void
and/or voidable, and IBM's claims based thereon or related thereto
are barred.
- 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 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.
Posted Oct 28, 2003 16:53 UTC (Tue)
by error27 (subscriber, #8346)
[Link] (11 responses)
Here is a PDF of the agreement. I hadn't seen it before today.
Posted Oct 28, 2003 17:11 UTC (Tue)
by corbet (editor, #1)
[Link]
OK, the relevant language would appear to be on page 31:
The second sentence would appear to cover it; it seems to say that Novell ("Seller") can tweak the licenses to its heart's content.
Posted Oct 28, 2003 21:44 UTC (Tue)
by StevenCole (guest, #3068)
[Link] (7 responses)
According to
this article at The Register, Blake Stowell said this:
Posted Oct 28, 2003 22:17 UTC (Tue)
by Robin.Hill (subscriber, #4385)
[Link]
Posted Oct 28, 2003 22:20 UTC (Tue)
by proski (subscriber, #104)
[Link] (4 responses)
Posted Oct 28, 2003 22:51 UTC (Tue)
by StevenCole (guest, #3068)
[Link] (3 responses)
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.
Posted Oct 29, 2003 0:52 UTC (Wed)
by ronaldcole (guest, #1462)
[Link]
Your mistake is in assuming that logic is inherent in the law. ;)
Posted Oct 29, 2003 22:17 UTC (Wed)
by bryn (guest, #1482)
[Link] (1 responses)
Posted Oct 30, 2003 1:40 UTC (Thu)
by StevenCole (guest, #3068)
[Link]
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.
Posted Oct 31, 2003 1:59 UTC (Fri)
by giraffedata (guest, #1954)
[Link]
For money?
Posted Nov 5, 2003 14:01 UTC (Wed)
by jneves (guest, #2859)
[Link] (1 responses)
Posted Nov 10, 2003 22:56 UTC (Mon)
by jre (guest, #2807)
[Link]
Posted Oct 28, 2003 17:04 UTC (Tue)
by freeio (guest, #9622)
[Link]
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.
Posted Oct 28, 2003 17:42 UTC (Tue)
by jake (editor, #205)
[Link] (1 responses)
jake
Posted Oct 30, 2003 7:28 UTC (Thu)
by amacater (subscriber, #790)
[Link]
[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 -
Posted Oct 28, 2003 18:31 UTC (Tue)
by jre (guest, #2807)
[Link]
Posted Oct 28, 2003 21:51 UTC (Tue)
by rise (guest, #5045)
[Link]
Posted Oct 29, 2003 4:43 UTC (Wed)
by freemars (subscriber, #4235)
[Link] (1 responses)
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.
Posted Oct 30, 2003 2:11 UTC (Thu)
by chad.netzer (subscriber, #4257)
[Link]
Posted Oct 29, 2003 8:56 UTC (Wed)
by steveha (guest, #3876)
[Link] (1 responses)
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
Posted Oct 29, 2003 14:19 UTC (Wed)
by southey (guest, #9466)
[Link]
Posted Oct 30, 2003 4:39 UTC (Thu)
by kitterma (guest, #4448)
[Link]
Posted Oct 30, 2003 9:02 UTC (Thu)
by maxx (guest, #14608)
[Link] (2 responses)
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.
Posted Nov 6, 2003 14:21 UTC (Thu)
by blane (guest, #16587)
[Link] (1 responses)
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.
Posted Nov 6, 2003 15:05 UTC (Thu)
by cypherpunks (guest, #1288)
[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.
SCO responds to IBM's counterclaims
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.
Novell's veto rights
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.
Although hard on the eyes, that document contains some other
interesting tidbits.
SCO responds to IBM's counterclaims
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
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
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" :-)
SCO responds to IBM's counterclaims
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.
Perpetual vs. irrevocable
"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
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
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.
Perpetual vs. irrevocable
Why would anyone in their right mind sign over a license to anyone that was not revocable?
SCO responds to IBM's counterclaims
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
Yes. This article in Groklaw presents, as text, the amendment to which you refer.
SCO responds to IBM's counterclaims
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)
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.Affirmative defenses tend to push the limit
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?SCO responds to IBM's counterclaims
Standard legalese - [If the licence is correct and appears current] itSCO responds to IBM's counterclaims
is unenforcable (they can't enforce the licence terms or provisions so it could be struck down)
(although it looks OK, it fails and is an invalid licence for some legal reason)
you can ask the court to strike it down as invalid / kill it if certain stuff happens or in certain outside circumstances. Think of the whole thing as a series of if ... else type statements or a complicated case statement. [No pun intended here - no matter what happens :) All stuff in brackets/parentheses is my own comments]
"Just why SCO is so eager to see the GPL defeated is still not entirely clear, however."
Pay no attention to the man behind the curtain.
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?
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
25. Admits that the GPL purports to guarantee the right to freely share and change free software...
"freely...share...free software."
The GPL proports
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.What SCO hopes to accomplish
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.
What SCO hopes to accomplish
WRT the theory that SCO may be trying to put GPLed code into public domain, here's the article:
http://web.archive.org/web/20210921171144/http://www.groklaw.net/article.php?story=20031028130705694
SCO trying to put Linux in the public domain?
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?SCO responds to IBM's counterclaims
SCO responds to IBM's counterclaims
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.
SCO responds to IBM's counterclaims