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IBM files another summary judgment motion

[Posted August 19, 2004 by corbet]

IBM is going for it in a serious way: the company has filed yet another motion for partial summary judgment. This one (available in PDF format) relates to IBM's 8th counterclaim: the GPL-based copyright infringement charge. "SCO has, without permission, copied code from sixteen discrete packages of copyrighted source code written by IBM for Linux and distributed those copies as part of its own Linux products. SCO has literally copied more than 783,000 lines of code from these sixteen packages of IBM's copyrighted material... Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified, and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed, and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works." This is going to be interesting.
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YES!!!

Posted Aug 19, 2004 2:21 UTC (Thu) by yodermk (guest, #3803) [Link] (1 responses)

All I can say is HAHAHAHAHA.

This is truly priceless!

Go IBM!

wow

Posted Aug 19, 2004 2:58 UTC (Thu) by xorbe (guest, #3165) [Link]

I didn't see that one coming. Nice.

The GPL's true strength

Posted Aug 19, 2004 2:49 UTC (Thu) by bignose (subscriber, #40) [Link] (3 responses)

This should give the lie to all those who say the GPL is "anti-copyright". The goals of the FSF may be to revolutionise copyright as it applies to software, but the GPL *uses* copyright very effectively.

As the GPL license text says, you don't have to agree to it; but it is *only* by following the GPL, or some other license from the copyright holder, that you may copy, modify or redistribute. It is copyright law that gives the license its teeth.

Copyleft in action.
http://www.gnu.org/copyleft/

The GPL's true strength

Posted Aug 19, 2004 9:21 UTC (Thu) by steven97 (guest, #2702) [Link] (2 responses)

What fascinates me more is that they apparently are confident that the
GPL will be upheld in a federal court. To me, that's even more exciting.

The GPL's true strength

Posted Aug 20, 2004 0:20 UTC (Fri) by vdvo (guest, #24133) [Link] (1 responses)

What fascinates me more is that they apparently are confident that the GPL will be upheld in a federal court.

Actually, I don't think that this demonstrates IBM's confidence in the GPL, because if the GPL were ruled invalid, then SCO doesn't have "permission or a license to copy and distribute IBM's copyrighted works", either, because the GPL is their only license. (Note that I am not saying that IBM wants/expects the GPL to be invalidated or anything like that; I merely say that your conclusion appears unfounded.)

The GPL's true strength

Posted Aug 23, 2004 6:32 UTC (Mon) by mbp (subscriber, #2737) [Link]

It demonstrates IBM are confident in the "got them both ways" design of the GPL: either SCO accepted it, or they did not (and are violating IBM's copyright).

Some prominent SCO/Microsoft shills have argued that the GPL is invalid in the sense that it allows redistribution but the conditions cannot be enforced. No, it doesn't make sense to me either, but people do argue this.

Alternatively, SCO have argued that they "didn't know" they were agreeing to the GPL, but that they were allowed to redistribute IBM's work anyhow. Larry Rosen argues something like this when he says free software ought to have an explicit clickthrough assent. IANAL, but I think he's wrong.

Self Defending Self Healing Copyright

Posted Aug 19, 2004 3:16 UTC (Thu) by huffd (guest, #10382) [Link] (3 responses)

SCO done in with their own words. They violated the very terms of the copyright they aborred. Now the full weight of their misdeeds will fall about them..

Self Defending Self Healing Copyright

Posted Aug 19, 2004 3:24 UTC (Thu) by mepr (guest, #4819) [Link]

We will line the streets of Baghdad^H^H^H^H^H^H^HLindon Utah with the the headless corpses of SCO's management, and leave them for the vultures of Microsoft to consume.

-the GNU minister of information

Self Defending Self Healing Copyright

Posted Aug 19, 2004 19:37 UTC (Thu) by Baylink (guest, #755) [Link] (1 responses)

You forgot the part about roasting their bellies...

isn't there a barbecue apron with this on it?

And, is that "fall about" thing kinda like the Thin Lizzy lyric about "We just fell about the place..."?

Stomach grilling time?

Posted Aug 20, 2004 1:09 UTC (Fri) by jre (guest, #2807) [Link]


Right you are!

The classics never go out of style.

possibility for class action

Posted Aug 19, 2004 8:43 UTC (Thu) by copsewood (subscriber, #199) [Link] (6 responses)

This could become even more interesting if other Linux copyright holders can turn this into a class action without delaying or confusing it in any way.

possibility for class action

Posted Aug 19, 2004 12:53 UTC (Thu) by smoogen (subscriber, #97) [Link]

Doubtful. It would need to be a completely new case.

Possibility for Class Action

Posted Aug 19, 2004 15:13 UTC (Thu) by rriggs (guest, #11598) [Link]

Let IBM set the precedent in their case first. Then all developers with GPL'd software distributed by SCO, either in their Linux products or their "UNIX" products (OpenServer and UnixWare), can go after SCO Group. Note, however, that the crux of the argument that IBM is making will only directly affect kernel developers, not userland programmers. But making SCO drop Samba, GCC, and all the other GPL'd software they distribute from their UNIX products would bring me no end of joy. They'd be screwed.

possibility for class action

Posted Aug 19, 2004 15:27 UTC (Thu) by dreed (guest, #17539) [Link] (3 responses)

Ater IBM gets done with them, SCO will be in bankruptcy so there's no point in filing a class action lawsuit. Although have others have pointed out, if the continue distributing other GPL software such as Samba, etc. then it might be worth filing a lawsuit to stop that.

possibility for class action

Posted Aug 19, 2004 20:43 UTC (Thu) by yodermk (guest, #3803) [Link] (2 responses)

I don't know, I don't think they've actually violated the Samba license.

Does violating the GPL on one program automatically mean you can't distribute *any* GPL software? That would seem to me like an excessively broad interpretation.

possibility for class action

Posted Aug 19, 2004 21:29 UTC (Thu) by s_cargo (guest, #10473) [Link]

Does violating the GPL on one program automatically mean you can't distribute *any* GPL software? That would seem to me like an excessively broad interpretation.
Darl McBride has publicly called the GPL unconstitutional. SCO has written letters to congress regarding same. If SCO does not accept the GPL as a valid license, then they have no right to distribute any GPL copyrighted software.

possibility for class action

Posted Aug 20, 2004 7:39 UTC (Fri) by bojan (subscriber, #14302) [Link]

> Does violating the GPL on one program automatically mean you can't distribute *any* GPL software? That would seem to me like an excessively broad interpretation.

Yes, that would be a too broad interpretation indeed. However, if you knew that something was "illegal", would you still do it? Of course not. So, if SCO know that GPL is illegal, why are they continuing to break the law by using it? Isn't it unconstitutional to not ask for money for software distribution?

Screwing the GPL

Posted Aug 19, 2004 10:04 UTC (Thu) by rakoch (guest, #4666) [Link] (5 responses)

Everybody here seems so happy that IBM uses the GPL to squash SCO. And indeed, this could strenghten the GPL considerably if it's going the way we wish.

The motions show that IBM's lawyer's are anything but naiive. What if IBM is playing a double game and is asking for too much with the hidden aganda to squash the GPL. That way they'd get rid of SCO and the GPL with one single blow. Ironically with the help of the community. It'd be more comforting to know that IBM would shoot itself in it's corporate foot than relying on IBM's goodness. Anyone has more insight in what IBM has to gain or to loose?

-Rudiger

Screwing the GPL

Posted Aug 19, 2004 11:50 UTC (Thu) by stumbles (guest, #8796) [Link]

Nothing I have read in IBM's two recent PSJ's suggest IBM has a hidden agenda to
squash the GPL. That would be to use an old phrase, bitting the hand that feeds
them. Something SCOG is totally blind to. McBride was right in an indirect way about
GPL. the only way to get rid of it is to legally invalidate the existing copyright laws. I
for one do not see that ever happening.

Screwing the GPL

Posted Aug 19, 2004 12:56 UTC (Thu) by smoogen (subscriber, #97) [Link] (1 responses)

Or maybe it is a triple game, IBM got SCO to file the case so that they could file this counter charge to get it squashed. Or maybe its a quadruple game with Microsoft getting IBM to get SCO to file the case so that they could file this counter chage to get it squashed.

At some point we have to wear our alluminum foil hats and be done with it.

Screwing the GPL

Posted Aug 19, 2004 14:14 UTC (Thu) by stumbles (guest, #8796) [Link]

And the cat tat ate the rat, that ate the cheese that..........


Tinfoil hats indeed. Mine is electrified.

Screwing the GPL

Posted Aug 19, 2004 14:22 UTC (Thu) by corbet (editor, #1) [Link]

I'd say what IBM has to gain is this: the company has contributed large amounts of code to Linux with the understanding that it would only be redistributed under the terms of the GPL. IBM has made those contributions for its own business purposes, and, by all indications, those purposes are being well served.

IBM did not make those contributions so that a small, failing company could attempt to steal them and levy a tax on the users of that code. Allowing such an action would be to let others profit unfairly from IBM's contributions, add costs for IBM's customers, and destroy the development community which has given IBM such a great platform for the sale of hardware, proprietary add-ons, and services. From this point of view, it would appear that IBM has a clear interest in upholding and demonstrating the validity of the GPL. No tin foil required.

Screwing the GPL

Posted Aug 19, 2004 16:47 UTC (Thu) by iabervon (subscriber, #722) [Link]

The only right IBM, or anyone else, has to distribute Linux is what is granted under the GPL; more importantly, the only way that IBM gets the benefit of non-IBM development on Linux is that the GPL makes licensing that work to IBM (and everyone else) acceptable to others.

If the GPL were invalid, IBM would be left without a suitable operating system to distribute to many of their customers. If the GPL were unenforceable, IBM would lose 99% of the developers for the projects they ship. Being rid of the GPL would be about as good for IBM as being rid of outsourced hardware production. They already failed to produce all of the necessary software they shipped when they started shipping DOS; the GPL gives them a better deal than third-party proprietary software.

For that matter, IBM doesn't even have its own Linux version that it could make proprietary should the GPL turn out to be unenforceable; they ship Red Hat or SuSE, and contribute the code necessary to make it run on their expensive hardware. They'd need a completely different business model and a mostly different employee set to gain at all.

IBM files another summary judgment motion

Posted Aug 19, 2004 10:04 UTC (Thu) by russell (guest, #10458) [Link]

Who needs a patent portfolio. GPL is far more devastating.

Told you, so many times.

Posted Aug 19, 2004 10:38 UTC (Thu) by NZheretic (guest, #409) [Link]

Google NZheretic and SCO on LWN
and
Going back to June 2003.

IBM files another summary judgment motion

Posted Aug 19, 2004 12:38 UTC (Thu) by cpm (guest, #3554) [Link]

Well, it certainly is refreshing to read some good news for a change.

Well done.

List of software

Posted Aug 19, 2004 13:30 UTC (Thu) by vondo (guest, #256) [Link] (6 responses)

When I look at the list of software in the table of contents, almost all of it seems to be in the linux kernel. The exception is Omniprint. Didn't SCO stop distributing Linux to new customers months ago because it was a GPL violation? It would be much more satisfying if the software IBM is trying to revoke were things like Samba, etc. that are part of SCO Unix.

List of software

Posted Aug 19, 2004 14:18 UTC (Thu) by donstuart (guest, #4550) [Link] (3 responses)

IBM can only defend the copyrights they own. Do they own anything in Samba?

On the other hand, I don't think old customer or new customer matters if SCO is still distributing a copyrighted work without permission.

IANAL but I do have a big smile right now.

Don

List of software

Posted Aug 19, 2004 14:37 UTC (Thu) by slowjoe (guest, #18834) [Link] (2 responses)

Just to follow that thought...

Wouldn't it be nice if AutoZone or whoever could sue SCO for fraud, for selling software under false pretenses.

All it needs is for someone to get their SAMBA licence revoked.

List of software

Posted Aug 19, 2004 15:03 UTC (Thu) by QuisUtDeus (guest, #14854) [Link] (1 responses)

IIRC, the Samba Team made a statement about the likes of SCO using their GPL'ed software: along the lines of "We distribute it under the GPL, and even a nasty company like SCO is allowed to use/distribute it." If they could come to the same conclusion (that SCO has repudiated the GPL), then they might move toward a copyright infringement case against SCO.

List of software

Posted Aug 20, 2004 1:51 UTC (Fri) by dmaxwell (guest, #14010) [Link]

I've seen two schools of thought with regard to SCO and the GPL. The first school of thought maintains that public repudiation of the GPL is sufficient to revoke any privileges it grants you. SCO has certainly done that. They have said publically and in court that the GPL is unconstitutional, violates copyright law, is the same thing as public-domaining your code, and that they are exempt for their past activities because they were ignorant that they were improperly distributing their own trade secrets and copyrights. Fyodor of the nmap project has formally denied SCO distribution rights to nmap because their repeated public repudiations of the license.

The second school of thought says that shooting your mouth off (even in court) doesn't count for anything; only actions matter. As long as SCO upholds their obligations, like delivering source code to their customers or to any third party that receives binaries who's ultimate source is SCO then they are in the clear. The Samba project at least initially has taken this tack with them. As far as Samba is concerned, they're probably in the clear as far as actions are concerned. With regards to the Linux kernel, SCO is definitely in breach of the GPL. They are attempting to charge license fees to third parties. Even if SCO exclusive contributions to Linux give them some sort of right to charge others they were still recent distributers of other peoples' copyrighted material. SCO had no right to distribute that material in undisclosed linkage to their own. SCO would have had to rewrite what isn't theirs to distribute a kernel they would have no right to call "Linux". The parts that might be SCO's will not function without the parts they indisputably didn't write and have no claim whatsoever on. Those copyright holders can definitely go after them, as what IBM is doing now.

What is NOT being tested in court right now is the publically-repudiate-the-license theory of GPL violation. It may well have merit but IBM has enough concrete copyrights in Linux to grill them on the action theory which applies to most any sort of copyright. If there is anything left of SCO after IBM's onslaught, smaller Linux copyright holders will probably be embolded to pursue them with a juicy court precedent in hand. Come to think of it, the repudiate school depends exclusively on licensing legal theory while the action school is more grounded in copyright. I suspect action arguments are easier to make in court.

From my reading of user group mailing lists and other public forums, the action school of thought seems to be the most prevalent. I certainly haven't seen anyone else other than Fyodor step forward to revoke GPL license rights so I suspect the action school is most common among developers as well. Under either school of thought, SCO is well and truly boned. If the repudiate school has merit, they are in breach for EVERY piece of GPL software they have ever distributed. Under the action school, they are definitely in breach for the kernel at least. Both large and small pockets hold copyrights and can pursue them for this. I have this lovely mental picture of the lkml regulars feeding on SCO like pirahna.

List of software

Posted Aug 19, 2004 14:56 UTC (Thu) by storner (subscriber, #119) [Link]

The IBM filing clearly states that the Linux kernel sourcecode was available for download from SCO as late as August 4, 2004. So at least until two weeks ago, SCO was still distributing the files that IBM claims copyright over.

List of software

Posted Aug 19, 2004 18:13 UTC (Thu) by iabervon (subscriber, #722) [Link]

The GPL doesn't actually prohibit you from repudiating the GPL. It is only when they claim copyright infringement of modifications they were only permitted to make under the GPL (thereby implying that their distribution did not permit recipients to sublicense) that they violated the license on the modified (or distributed) work. As they haven't made copyright infringement claims about most packages, they haven't violated their licenses to those packages.

For that matter, it's reasonably likely that IBM will lose this one, on the basis that SCO hasn't actually copied, distributed, or modified anything without abiding by the terms of the GPL, regardless of what they've said they were doing.

IBM files another summary judgment motion

Posted Aug 19, 2004 18:55 UTC (Thu) by danw6144 (guest, #14336) [Link] (3 responses)

SCO will raise a valid defense to this Motion for Summary Judgement.
SCO and SCO's in house counsel relied on the GPL in "good faith"
between 2000 and 2003 after IBM donated their code.

Upon re-evaluation by "new" outside counsel in 2003 SCO discovered that
the GPL was "invalid". All SCO did was plead what "new" counsel "discovered"
as the "truth". They (SCO) are still entitled to promissory estoppel concerning IBM code since they relied upon the GPL for three years in "good faith" to their detriment.

IBM can take nothing by way of this motion... what IBM wants is adjudication of the GPL and IBM knows SCO will raise its claims about GPL preemption.

Daniel Wallace

Daniel Wallace's crackpot theories on the GPL

Posted Aug 19, 2004 21:11 UTC (Thu) by NZheretic (guest, #409) [Link]

Daniel Wallace's crackpot theories on the GPL have been utterly refuted many times by lawyers such as Michael C. Berch, Member of the California Bar, Celia Santander Esq, Adjunct Professor at Duquesne University School of Law teaching upper-level intellectual property law and even the FSF own General Counsel Eben Moglen, rofessor of law and legal history at Columbia University Law School.

Dispite all the evidence to the contrary, Mr Wallace and the SCO Group itself keep producing these outlandish legal theories and unsubstantiated factual claims.

IBM files another summary judgment motion

Posted Aug 19, 2004 23:50 UTC (Thu) by rriggs (guest, #11598) [Link]

What you posit is a fair defence -- for distributing the kernel between 2000 and 2003. After that, your argument falls flat.

The simplicity of the GPL tends to throw a lot of people off. They wish to make it more complicated than it really is. Abide by the GPL and you have a right to distribute. Otherwise, one has no such right.

SCO/Caldera should have stopped distributing software licensed under the GPL in 2003 when they decided they no longer wished to abide by the GPL. You can't have it both ways. The GPL is the only license by which SCO Group is permitted to distribute the Linux kernel.

What IBM is asking for judgement on, and for which SCO has no defence, is that SCO Group distributed (and continues to distribute) IBM's copyrighted works without a license after SCO Group annulled their only license to do so through their other actions.

IBM files another summary judgment motion

Posted Aug 20, 2004 7:04 UTC (Fri) by bojan (subscriber, #14302) [Link]

> Upon re-evaluation by "new" outside counsel in 2003 SCO discovered that the GPL was "invalid".

So, they are shipping this now:

ftp://ftp2.sco.com/pub/skunkware/osr5/vols/

On what grounds exactly? If the licence is in fact invalid, unlawful, unconstitutional and what not, why is the company that is all about the law (SCO) using it for distribution of software that is copyrighted material of FSF and from their own FTP site? Wouldn't you say that using a licence that you know is unlawful is an unlawful act in itself?

BTW, I have personally downloaded Linux kernel from SCO FTP site, covered under the GPL (had the same MD5 as vanilla kernel) *after* they discovered the licence was invalid. So, where did the advice of this "new" counsel go?

> SCO will raise its claims about GPL preemption

Like they presented millions of lines of System V code in Linux? I'm holding my breath...


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