Thursday, August 7, 2003
SCO, Meet the GPL --
IBM's Legal Calvary Charges
I've seen the papers. I can't post them, but they'll be available in due course,
either tomorrow or more likely the day after at the Utah courts, via
Pacer. Here's an advance peek:
There are ten, count them,
ten counterclaims. The main theme is this: that SCO has been
misleading the world by falsely stating that IBM's license has been
terminated. It was never terminated, they say, in part because it is
irrevocable and also because it was a 3-way contract, and Novell, the
third party, stepped in and blocked the attempt at termination. And SCO, the papers charge, is in violation of the GPL and has had its rights to distribute GPL code terminated.
Further, SCO has misleadingly overstated its rights to UNIX, AIX, and IBM's Linux-related products, for its own financial benefit, IBM charges.
Its false statements have damaged IBM's reputation, interfered with its prospective business, both AIX and Linux-related, and violated the GPL.
SCO is trying, the papers say, to assert rights it does not have by falsely claiming the right to terminate IBM's irrevocable
and perpetual UNIX rights.
Further, SCO committed not to assert
certain proprietary rights over or restrict further distribution of
any GPL source code distributed by SCO when it
itself distributed the code under the GPL. IBM contributed code to Linux under the GPL on the condition that users and distributors, including
SCO, abide by the terms of the GPL. But SCO, IBM says, has taken source
code made available by IBM under the GPL, included that code in SCO's
Linux products, and distributed significant protions of those products
under the GPL. By doing so, SCO accepted the terms of the GPL (Section
The GPL prohibits SCO from asserting proprietary rights (such as the right to collect license fees), or attempting to restrict distribution of any source code distributed by SCO under the terms of the GPL. As a result, SCO's right to distribute the copyrighted works of others included in Linux under the GPL have been terminated pursuant to Section 4 of the GPL.
They also claim breach of contract, violations of the Lanham Act, unfair competition, intentional interference with prospective economic relations, and unfair and deceptive trade practices. Here's how IBM says SCO breached the GPL, by:
1. claiming ownership rights over Linux code, including IBM contributions
2. seeking to collect and collecting license fees for that code
3. copying, modifying, sublicensing or distributing Linux on terms other than those set out in the GPL and after its rights under th GPL terminated
4. seeking to impose additional restrictions on the recipients of Linux code
IBM requests an injunction against such further breaches and damages to
be determined at trial.
There are four patent infringement
claims, respecting the following patents:
1. Patent No. 4,814,746, Data Compression Method (being infringed by UnixWare and Open
2. No. 4,821,211, Method of Navigating Among Program Menus
Using a Graphical Menu Tree (SCO Manager infringes);
3. No. 4,953,209, Self-Verifying Receipt and Acceptance System for Electronically Delivered Data Objects (UnixWare infringes);
4. No. 5,805,785, Method for Monitoring and Recovery of Subsystems in a Distributed/ Clustered System (Reliant HA infringes).
Relief IBM is requesting:
-damages pursuant to 15 USC Section
-treble damages pursuant to 35 U.S.C. Section 284
-declaratory relief, ruling that SCO has violated IBM's rights
-injunctive relief, enjoining and restraining SCO from
further misrepresenting SCO's rights and IBM's rights to UNIX technology or that IBM no longer has the right to use, produce and distribute AIX and Linux-related products; from publishing false and disparaging statements about AIX and IBM's Linux-related products; or claiming ownership rights over code made available under the GPL; from further infringement or inducement of infringement of their patents
-costs, expenses and attorneys' fees
- pre and post-judgment interest on the damages
What does it all mean? First, IBM is saying that the code it put in to Linux was theirs to donate and that SCO has wrongfully used it in violation of the code's license terms. That would be the GPL. Unless I missed the drift, IBM just let SCO know that the allegedly infringing code isn't SCO's, because they themselves accepted it under the GPL and redistributed it under the GPL. That means that part of their code just joined the free world, according to the papers.
Further, as a result of violating the GPL, they now have no rights to distribute GPL code. That goes to the heart of their new business model of using Linux apps on top of a UNIX kernel. If the court grants the injunction, then further infringement of the GPL is forbidden, which would include the license plan.
It also means that while Darl was shooting his mouth off, IBM was taking notes, and the majority
of the other counterclaims are based on SCO spokespeople saying things
to the press that IBM says were deceitful and damaging and derogatory,
harming IBM's business and reputation, harming the reputation of Linux,
and interfering with its potential customers, and they say their tortious conduct was and is willful and deliberate, hence they should be fined treble damages,
because, they tell the court, this is an exceptional case, meriting such
sanctions. They also ask the court to stop them from any further infringement
of their four patents by ordering SCO to quit manufacturing or selling
or distributing the infringing products listed above. So, if the court says yes,
that's pretty much the end of SCO's business, both software and the
IBM sales people, in an internal memo from Bob Samson, Vice President, Systems Sales, IBM Systems Group, today were encouraged to turn people to the OSDL website to read "Questioning SCO: A Hard Look at Nebulous Claims," by Eben Moglen, General counsel of the Free Software Foundation, and to let everyone know, that as this lawsuit goes foward, "the industry will resolve it."
Man, I believe them. IBM, it appears, fully intends to turn SCO into mincemeat. And dear Darl was just the man to hand them the weapons to be able to do it.
And finally, a song of praise to the GPL. It's shining hour has arrived. And it is shining manfully. If you were longing for the GPL to have its day in court, you just got it. It is leading the charge.
Update: Novell was 3rd Party to SCO-IBM AIX Contract
Novell Disputes SCO's Right to Terminate
I just spoke with Trink Guarino at IBM, who informed me that the SCO/IBM contract regarding AIX, which SCO claims they terminated, was a three-party contract, the third party being Novell, and that Novell sent a letter to SCO disputing their right to terminate IBM's AIX license. No wonder IBM hasn't been acting worried. Funny SCO didn't tell us about this, huh? This is huge. More soon. Very soon.
While we wait, ECommerceTimes has this:
"IBM claims SCO's case has no merit or supporting facts. The company is countersuing SCO for several issues: violation of the Linux General Public License (GPL); improper claims to revoke IBM's Unix license; and infringement of IBM patents relating to SCO's UnixWare, Open Server, SCO Manager and Reliant clustering software products.
"Big Blue is seeking compensatory and punitive damages and an injunction requiring SCO to refrain from 'misrepresenting its rights' and to cease further infringement of IBM's patents, according to the claim."
Germany: "We Must Resist" --
Looks Like More Legal Action
Here is an article that seems to be saying that there is a court order against SCO in Germany. I have run it through a computer translator, but to all you Golem.de folk: "Bitte, auf English!" Anyone?
"Provisional order against SCO
"Of Bremen Linux specialist univention proceeds against SCO
"That of Bremen Linux specialist univention obtained regional court before that of Bremen against the SCO Group GmbH a provisional order. The order forbids maintaining it SCO, "that Linux operating systems illegitimately acquired mental property of SCO Unix contains and/or that final user, which uses Linux, for whom associated patent right violations can be made liable". During offence an order cash of up to 250.000 euro threatens.
"Univention had warned the SCO Group before already because of competition-adverse behavior, SCO let however the set period for the delivery of an omission assertion elapse. "we saw ourselves therefore forced to let the order now set", describe Peter H. Ganten, Geschaeftsfuehrer of univention, its procedure. "the unproven statement of SCO, Linux hurts patent rights of the enterprise at Unix, disconcerts the public and harms the image of Linux. On the other hand we had to resist."
The full story, in German, available by clicking on the link.
"Death to Linux"? No, an IBM Countersuit Instead
Stephen Shankland is reporting that IBM has filed a countersuit today. No details yet, but I'm working on it. Wait, someone just posted this in the comments section. The article says IBM says SCO is violating their patents and it stands on the GPL. Oh my, oh my, it doesn't get any better than that:
"In a 45-page document filed late Wednesday, IBM argues that because SCO distributed a version of Linux under the open-source General Public License ( GPL ), it can't claim that Linux software is proprietary. IBM also argues that SCO software violates four IBM patents and that the company interfered with IBM's business by saying it had terminated IBM's right to ship a Unix product, AIX.
"IBM is seeking unspecified monetary damages and an injunction stopping SCO from shipping its software. The counterclaims came as part of Big Blue's answer to SCO's amended suit and were filed in the same federal district court in Utah."
Earlier, in writing about the license, I couldn't help mocking and horsing around. But now, I'm as serious as a heart attack.
It's clear that SCO's license is designed to kill Linux, the kernel, off completely. Whether that was the original plan, I don't know. Certainly, SCO has announced that they have a way to run GNU/Linux apps on their proprietary UNIX kernel. And I certainly hope someone in a lawsuit with them asks to see the code of their Linux Personality Kernel to check for GPL code. Don't ask for the one they said they just cleaned up to remove any IP issues. Ask for the one they released under the GPL originally. Oh, wait. The beauty of the GPL. Just look at an older release.
So, their plan means death to Linux; whether that was the intent or not, it would be the effect. No software distributor can sign this license and continue to distribute Linux. The only right anyone has to distribute GPL code is under the GPL, which by its terms requires that no conflicting license interfere with the four freedoms the GPL grants. SCO acknowledges this in their explanation page for the license:
"The license does not grant any rights to use SCO IP in source format, nor does it grant any distribution rights. It is therefore inadequate to cure infringements for distributors, or any entity that uses, modifies or distributes Linux source code."
So, the license does not solve the "Linux problem", except in the Hitlerian sense. They have no method for resolving their IP claims that would allow distributors to stay in business. And they are "surprised" Red Hat decided to sue instead? Is this how they started out? Maybe, but I don't think so. I think when they started, they thought there'd be some way to tax GPL software for their own benefit. Then they hit the GPL wall. By then they were in so deep, they didn't and don't know what else to do but keep going.
In the teleconference, McBride said this license might give impetus to a way for GPL coders to make some money off "their hard work, their proprietary work." Um, what? Proprietary what? The only money I see heading in anyone's direction in this plan is to SCO, not the Linux coders. If you can't modify or redistribute the code, I think it'll be a bit hard for coders to make any money from it. (It's also a fact that people already make money from their GPL work. As in Red Hat. Not that money is the dominant motivation for creating a free operating system, but making money from your code is not a violation of the GPL. And making money is certainly Red Hat's intention.)
Speaking of violating the GPL, this license by its terms is a violation, despite SCO's claims that you can have both.
Here's what I think may have happened. They started out with zero comprehension of the GPL. Actually, less, because they had a miscomprehension. After the last teleconference, where they first announced the licensing plan, they didn't call on me to ask a question, but they announced if anyone had any followup questions, we could email them. I did send them the following four questions, and I got an email back saying they would be replying. They have not done so to date, unless you count yesterday's teleconference remarks and the license terms as their answer to my first question. Here are the questions I sent:
"1. My understanding of the GPL is that no binary-only code can be released in conjunction with GPL code, when the two make up one program as opposed to being a merged aggegate. In other words, while it is acceptable to release two separate programs in the same distribution, one GPL and the other proprietary, any merging of the two codes into a single program would require that the proprietary code be released as GPL code and that source code be made available or that no distribution be made. Any distribution under any other terms than the GPL would be a violation of the copyrights of the GPL code. Can you please explain how it would be possible for you to offer a run-only license for binary code without violating the GPL? And if it isn't possible, are you not putting enterprise users in a bind, where they can't simultaneously be incompliance with you and with the GPL? Cf. http://www.gnu.org/licenses/gpl-faq.html#MereAggregation
"2. My understanding of copyright law is that registration permits money damages only from the date of registration, and that there is no prima facie assumption of the validity of the copyright if you register more than 5 years after first publication. Does this mean you will be looking for money damages only from the date of this announced registration? Or was it a copyright transfer or restoration of a copyright, as opposed to an initial registration? And if an accused infringer doesn't believe you have a valid copyright, and that is conceivable, what would your options then be?
"3. Is there any possibility that the code that you claim is infringing is actually code your company donated around 2000 or 2001 to IBM's AIX 5L open UNIX version? I noted that your web site, in discussing the project, mentioned NUMA and SMP, for example, as two aspects of that project. And can you please provide a list of what code you donated to that project,
"4. Since there is some doubt as to whether the code in question is
infringing -- one analyst, for example, said he just doesn't know -- and since the code you showed was edited to remove dates, for example, how would a recipient of a claim of infringement be certain if the claim was valid, if you haven't provided proof certain?"
From my email of July 22, if not before, they certainly were on notice that it is contrary to the terms of the GPL to distribute GPL code with a conflicting license. However, they probably read the Mere Aggegation clause in the GPL and thought they had an out. They are mistaken. Here is an explantion of what a compatible license would entail:
"What does it mean to say a license is 'compatible with the GPL'.It means that the other license and the GNU GPL are compatible; you can combine code released under the other license with code released under the GNU GPL in one larger program.
"The GPL permits such a combination provided it is released under the GNU GPL. The other license is compatible with the GPL if it permits this too."
Here is a bit from the GPL FAQ page explaining a bit more:
"What is the difference between 'mere aggregation' and 'combining two modules into one program'? Mere aggregation of two programs means putting them side by side on the same CD-ROM or hard disk. We use this term in the case where they are separate programs, not parts of a single program. In this case, if one of the programs is covered by the GPL, it has no effect on the other program.
"Combining two modules means connecting them together so that they form a single larger program. If either part is covered by the GPL, the whole combination must also be released under the GPL--if you can't, or won't, do that, you may not combine them.
"What constitutes combining two parts into one program? This is a legal question, which ultimately judges will decide. We believe that a proper criterion depends both on the mechanism of communication (exec, pipes, rpc, function calls within a shared address space, etc.) and the semantics of the communication (what kinds of information are interchanged).
"If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.
"By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs. But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program."
SCO has given its opinion that if you tried to remove the infringing code, you'd have nothing left to run. So are they licensing a separate program as a mere aggregation, just side by side on a CD? By their own testimony, they are not. So they are ipso facto in violation of the GPL. Do they cynically know this? I don't know. But I notice they pointedly say that they are not releasing any software with the license and that it covers only software the end user already has received. Perhaps they think this covers their behind. It's also possible they failed GPL summer school, I suppose.
Here's the best part of the GPL in the current situation:
"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.
Does that not say you can't sublicense and if you try, it's void? This isn't even touching on the issue of SCO releasing under the GPL itself. If it didn't, then they had no right to distribute their code with GPL code at all and so are in violation of the copyrights of the authors of the kernel. They distributed for years and continued after they knew about the "infringing" code:
"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
"6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License."
So, I would say they have painted themselves into a corner. And I see no way out for them. The GPL really is their tar baby. No matter how they try to attack it, they just get more and more stuck. No wonder they sounded so jumpy and scattered at the teleconference and their licensing pages are written with so many errors of punctuation and grammar. It looks to me like somebody's nervous. I don't blame them. David Boies isn't stupid, and I notice he didn't attend this time.
Finally, SCO is having its lawyers look into whether they license is legal in Australia. Go, Aussie warriors! SCO says this has nothing to do with them. Heh heh.