The Ten IBM Counterclaims

Here are the ten Counterclaims interposed by IBM in response to SCO's Amended Complaint.

[Note: MozillaQuest Magazine has a 22-KB zipped text-version of the entire, 45-page IBM Answer and Counterclaim. You can download it from the Resources section on page 2 of our initial IBM Answer and Counterclaim story.]

IBM's Background Allegations of Facts

To better understand the nature of IBM's copyright-related Sixth Counterclaim, let's first look at some allegations from the Background section of IBM's Counterclaims.

Please notice that none of these paragraphs in the Counterclaims section use the term copyright infringement directly. However, the actionable SCO conduct that IBM alleges is conduct that involves the exclusive rights granted to copyright owners under Sections 106 and 501 et seq of the United States Copyright Act, 17 U.S.C. 106, 501 et seq -- copying, modifying, and distributing copies of a copyrighted work -- and of course licensing any of these rights.

Interestingly, IBM doesn't claim an infringement on copyrights that IBM owns but rather basis its Sixth Counterclaim claims on the GNU GPL, which freely allows use of the rights to copy, modify, and distribute the Linux kernel and the GNU/Linux operating and any other associated GPL-licensed software.

However, in paragraph 75 of its Counterclaims, IBM does allege that some of the "Linux' code that involves use by SCO and violates the GNU GPL is code that IBM contributed to "Linux".

So, with those thoughts in mind, here are the highlights of IBM's Counterclaim regarding the kernel.org Linux kernel and GNU/Linux source code copyright issues.

B. SCO. Linux and the GPL

16. SCO accepted the terms of the GPL by modifying and distributing Linux products. By distributing Linux products under the GPL, SCO agreed, among other things, not to assert -- indeed, it is prohibited from asserting -- certain proprietary rights (such as the right to collect license fees) over any source code distributed under the terms of the GPL. SCO also agreed not to restrict further distribution of any source code distributed by SCO under the terms of the GPL.

C. IBM and Linux

19. Like thousands of other developers, IBM has properly contributed source code to Linux under the GPL. In fact, SCO has included IBM contributions to Linux in the Linux products that SCO has distributed under the GPL. Like all recipients of SCO's Linux distributions, IBM is entitled to the protections of the GPL with respect to the IBM contributions (as well as any other contributions) included in SCO's Linux distributions.

E. SCO's Scheme

23. Recognizing that there is little value in its UNIX rights, SCO did not limit its scheme to that technology. Rather, SCO devised and executed a plan to create the false perception that SCO holds rights to UNIX that permit it to control not only all UNIX technology, but also Linux -- including those aspects generated through the independent hard work and creativity of thousands of other developers and long distributed by SCO itself under the GPL.

24. SCO undertook to carry out its scheme by, among other things, (a) bringing baseless legal claims against IBM and threatening to sue other companies and individuals, (b) conducting a far-reaching publicity campaign to create the false and/or unsubstantiated impression that SCO has rights to UNIX and Linux that it does not have and that IBM and others have violated SCO's rights and (c) otherwise seeking to condition the market to believe that SCO has rights to UNIX and Linux that it does not have and cannot properly enforce.

F. SCO's Lawsuit and Threats

27. In addition to instituting litigation against IBM, SCO sent letters to 1500 of the world's largest corporations threatening litigation. In its letters, an example of which is attached hereto as Exhibit I, SCO states, "We believe that Linux infringes on our UNIX intellectual property and other rights". SCO further states, "We intend to aggressively protect and enforce these rights" against not only the companies involved with "the Linux development process" but also "the end user" companies using any Linux technology. SCO has made clear that it intends to bring legal action relating to Linux. For example, in a press conference on July 21, 2003, SCO stated that taking out a license with SCO was the "alternative to legal enforcement against Linux end-users"

[Check the Resources section at the end of this article for a link to a transcript and MPEG of that press conference.]

G. SCO's Campaign of False Publicity

30. By way of further example, SCO has falsely stated that it has the right to control the use by IBM of all of UNIX and AIX technology and to control the use by all persons and entities of Linux technology, which SCO contends is an illegal derivative of UNIX. On June 16, 2003, SCO announced in a press release, "AIX is an unauthorized derivative of the UNIX System operating system source code and its users are, as of this date, using AIX without a valid basis to do so". A SCO letter to Linux users, dated May 12, 2003, states, "We believe that Linux is, in material part, an unauthorized derivative of UNIX. We believe that Linux infringes on our UNIX intellectual property and other rights."

I. SCO's Refusal to Specify Its Claims

36. Rather than particularize its allegations of misconduct by IBM and others, SCO has obfuscated and altered its claims to foster fear, uncertainty and doubt about its rights and the rights of others. In letters dated April 2, 2003, and May 5, 2003, attached hereto as Exhibits M and N, respectively, IBM expressly asked SCO to advise IBM as to what SCO contends IBM has done in violation of any of its agreements, and what SCO contends IBM should do to cure such violations. SCO refused. In fact, SCO's counsel stated, in an interview with Maureen O'Gara of LinuxGram, that it "doesn't want IBM to know what they [SCO's substantive claims] are".

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip