IBM updates SCO countersuit

By Matt Whipp

Posted on 30 Sep 2003 at 15:42

IBM has added counts of copyright to its countersuit, that also alleges patent infringement, breach of licence and loss of business from SCO's actions.

The company claims: 'SCO infringed IBM's copyrights by, among other things, copying and distributing IBM contributions to Linux without permission after SCO's rights under the General Public License (GPL) terminated due to their breach.'

The updated counterclaim says that seven of IBM's copyrighted software contributions to Linux made under the GPL (GNU Public Licence) have been breached by SCO. The core of the claim is that SCO's actions violate the GPL, and thus the IBM copyright software included in Linux.

SCO responded in a statement issued yesterday: 'IBM, not SCO, has brought the GPL into the legal controversy between the two companies. SCO believes that the GPL - created by the Free Software Foundation to supplant current U.S. copyright laws - is a shaky foundation on which to build a legal case.'

IBM is also claiming that it ran its business on the understanding that SCO would act in accordance with the GPL, and that SCO's deviation from the licence terms has resulted in damages. The counterclaim also asks for a ruling that would prevent SCO from imposing restrictions on software it previously distributed under the GPL.

SCO's answer: 'The GPL has never faced a full legal test, and SCO believes that it will not stand up in court.' The statement continued: 'By so strongly defending the controversial GPL, IBM is also defending a questionable licensing scheme through which it can avoid providing software indemnification for its customers. We continue to urge IBM to provide legal indemnification for its Linux customers.'

IBM stated: 'Since day one, the IBM strategy in the SCO lawsuit has been to defend against SCO's unfounded claims vigorously in court.'

New York-based IBM filed the countersuit on 8 August in a Federal court in Utah, claiming SCO had infringed four of its patents and broken the terms of the General Public Licence, under which Linux is distributed. It is also filing for loss of business for its AIX platform, due to SCO's very public marketing of its $3bn suit against IBM.

See also: IBM moves against SCO

IBM questions HP indemnity offering

On the issue of indemnity, IBM questioned HP's recent offer to indemnify its Linux customers against any litigation SCO might take with regard to its IP claims over Linux.

IBM said: 'HP's indemnity is narrowly drawn and likely to be 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.'

HP's Linux man, Matt Fink, said at the time of HP's announcement that its customer base rarely wanted to do anything more than update Linux with the standard support services, for which they would remain indemnified.

IBM said it believes offering such a policy 'runs fundamentally counter to the Linux value proposition. Linux is developed to open standards and taps into the development power of many companies and individuals. Customers buy Linux principally for the quality of the operating system, broad vendor choice in hardware, distribution and maintenance and freedom to modify source code.'