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Saturday, September 27, 2003
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IBM's New Counterclaims
Dick Gingras has been good enough to type up for us the parts that are new regarding IBM's additional counterclaims. I am posting it here as an aid, but be sure to check the original for anything that matters. This is a quick typing from the pdf, so let us know about any errors:
Note that under 17 U.S.C 504 (c) Statutory Damages:
"(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000."
Seventh Counterclaim Promissory Estoppel
114. SCO made a clear and unambiguous promise to IBM and others that SCO would copy, modify or distribute programs distributed by IBM and others under the GPL only on the terms set out in the GPL; and would not assert rights to programs distributed by SCO under the GPL except on the terms set out in the GPL.
115. IBM and others reasonably, prudently and foreseeably relied upon these promises, such as by making contributions under the GPL and committing resources to open-source projects.
116. SCO knew or should have known that IBM and others would rely and in fact relied upon SCO's promises and knew or should have known that those promises would induce and in fact induced action or forbearance on the part of IBM and others.
117. SCO was and is aware of all material facts relating to IBM's reliance on SCO's promises including but not limited to IBM's contributions under the GPL, SCO's distributions under the GPL and the intent, meaning and import of the GPL.
118. As a result of its reliance upon SCO's promises, IBM has sustained injuries and is entitled to an award of damages in an amount to be determined at trial. In addition to an award of damages, IBM is entitled to declaratory and injunctive relief, including but not limited to a declaration that SCO is not entitled to assert proprietary rights with respect to products distributed by SCO under the GPL except upon the trems set out in the GPL.
Eighth Counterclaim Copyright Infringement
120. As stated, IBM has made contributions of source code to Linux under the GPL. IBM is, and at all relevant times has been, the owner of valid copyrights in these contributions, as well as of all the rights, title and interest in those copyrights.
121. IBM holds the following certificates of copyright from the United States Copyright Office (copies of which are attached hereto as Exhibits O-U), among others:
Registration No. Date of Reg Title of Work
TX 5-757-696 Aug 15, 2003 IBM Enterprise Volume Management System
TX 5-757-697 Aug 15, 2003 IBM Enterprise Class Event Logging
TX 5-757-698 Aug 15, 2003 IBM Dynamic Probes
TX 5-757-699 Aug 15, 2003 IBM Linux Support Power PC64
TX 5-757-700 Aug 15, 2003 IBM Omni Print Driver
TX 5-757-701 Aug 15, 2003 IBM Journaled File System
TX 5-757-702 Aug 15, 2003 IBM Next Generation Posix Threading
122. IBM has placed or caused to be placed a copyright notice on these contributions of source code to Linux under the GPL and has otherwise complied with the laws of the United States in this respect. IBM does not permit the unauthorized copying of its Linux contributions.
123. IBM granted SCO and others a non-exclusive license to the above-listed copyrighted contributions to Linux on the terms set out in the GPL and only on the terms set out in the GPL. IBM made these contributions on the condition that users and distributors of its copyrighted code, including SCO, abide by the terms of the GPL in copying, modifying and distributing Linux products.
124. SCO has infringed and is infringing IBM's copyrights by copying, modifying, sublicensing and/or distributing Linux products except as expressly provided under the GPL. SCO has taken copyrighted source code made available by IBM under the GPL, included that code in SCO's Linux products, and copied modified, sublicensed and/or distributed those products other than as permitted under the GPL. SCO has no right - and has never had any right - to copy, modify, sublicense and/or distribute the IBM copyrighted code except pursuant to the GPL.
125. As a result of SCO's infringement, IBM has been damaged and is entitled to an award of actual and/or statutory damages pursuant to 17 U.S.C. 504 in an amount to be proven at trial. Because SCO's infringement has been willful, deliberate and in utter disregard and derogation of IBM's rights, IBM is entitled to enhanced statutory damages pursuant to 17 U.S.C 504. IBM is entitled to costs and attorney's fees pursuant to 17 U.S.C 505.
126. In addition, IBM is entitled to injunctive relief pursuant to 17 U.S.C 502, as SCO will continue to infringe IBM's copyrights in violation of the copyright laws othe the United States unless restrained by this Court. IBM is also entitled to an appropriate order pursuant to 17 U.S.C. 503.
Thirteenth Counterclaim Declaratory judgement
152. SCO has breached its contractual obligations to IBM, violated the Lanham Act, engaged in unfair competition, interfered with IBM's prospective economic relations, engaged in unfair and deceptive practices, breached the GPL, infringed IBM copyrights and infringed IBM patents, as stated above.
153. Pursuant to 28 U.S.C. 2201, IBM is entitled to declaratory relief with respect to SCO's and IBM's rights, including among other things a declaration that SCO has violated IBM's rights as outlined above by breaching its contractual obligations to IBM, violating the Lanham Act, engaging in unfair and deceptive practices, breaching the GPL, infringing IBM copyrights and infringing IBM patents, and is estopped as outlined above.
154. Moreover, IBM is entitled to a declaration that (1) SCO has no right to assert, and is estopped from asserting, proprietary rights over programs that SCO distributed under the GPL except as permitted by the GPL; (2) SCO is not entitled to impose restrictions on the copying, modifying or distributing of programs distributed by it under the GPL except as set out in the GPL; and (3) any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL.
10:26:52 PM 
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Highlights of the IBM Filing
I will do a detailed explanation as soon as I can, but in the meanwhile, you can get a pdf of IBM's filing here. If you want the short version, read paragraphs 152 through 154 and the following relief section to the end.
What jumps off the page, aside from the copyright infringement counterclaim based on SCO's violation of the GPL, are paragraphs 33, 54, and 154.
In paragraph 33, IBM says:
"Indeed, SCO incorporated certain code licensed pursuant to the GPL into its proprietary Unix products."
Then in paragraph 154, they say they are entitled to the following relief, a declaration that:
". . . (3) any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL."
Then in paragraph 54, IBM says SCO is asserting legal theories that are frivolous.
They covered all the bases. IBM has said to SCO all the things you wished someone would. I can't see one thing they could have used that they didn't use. It's a powerful document.
To be continued.
10:18:39 PM
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IBM Files Copyright Infringement Counterclaim and Love Speaks Out
This is exciting. First IBM has filed a copyright infringement claim against SCO. They sent a memo to their sales staff about it. Second, they too say that indemnification is a way to kill Linux and they won't offer it. I am so relieved. I was afraid they'd take the bait SCO and HP created for them. Here's the scoop:
" . . . the new counterclaim charges that SCO infringed IBM's copyrights by distributing IBM's contributions to Linux after SCO had violated its Linux license by claiming a copyright on parts of Linux.
"IBM says in its counterclaim that SCO violated the general Public License under which Linux is distributed. The GPL requires Linux distributors to permit customers to freely copy the software.
"In the memo, signed by Robert Samson, an IBM sales manager, IBM said that: 'Most indemnities are narrowly drawn and are often invalidated by customer activities, such as making modifications or combining the indemnified product with other code, which are central to the vitality of open source.'
"It said the H-P indemnification requirements 'will inhibit customers from taking full advantage of the open source development process.'
"Mr. Samson's memo says 'HP's approach as outlined in the press, we believe runs fundamentally counter to the Linux value proposition.' Many users like Linux because they can view the source code making it easy to adapt the operating system for their own uses."
And the other big news is that Ransom Love has stepped out from the shadows and taken a stand. He has cut all ties to the company and says he'd never have gone in the direction SCO has taken:
" I think Caldera investors who wanted a quick return pressured the management. They seem to think that short-term, possible gains are more important than long term ones, which is unfortunate.
"I don't believe that the suit is good for the company or Linux."
10:09:36 PM
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