Discussion

That should give you a pretty good hang for what IBM has to say about:

• the Linux kernel and GNU/Linux code,
• the issues regarding that code that IBM now has made a part of this SCO-Caldera v IBM lawsuit, and
• the licensing of Linux kernel and GNU/Linux operating system code copyright rights through the GNU GPL.

It also should give you a pretty good feel for IBM's breach of the GPL counterclaim too.

The breach of the GPL counterclaim, the Sixth Counterclaim, does not directly claim copyright infringement. Nor does IBM ask the court for relief under the Copyright Act.

However, IBM's GPL-based counterclaim is based upon SCO infringing upon the exclusive rights of the copyright owners of the Linux kernel and GNU/Linux code. The copyright owners of the Linux kernel and GNU/Linux code licensed their copyrighted code under the GPL.

According to IBM's Sixth Counterclaim allegations, SCO has engaged in conduct pursuant to the Linux kernel and GNU/Linux code that involves exclusive rights of copyright owners protected by the U.S. Copyright Act. The GPL provides a broad scope of permissions for public use at no charge to the public. IBM alleges that, nevertheless, SCO has violated the scope, terms, and conditions of the GPL in respect to the Linux kernel and GNU/Linux code.

However, rather than proceed under the U.S. Copyright Act, IBM has cloaked what amount to copyright infringement claims under the shroud of a breach of the GPL contract claim. It's a very interesting way of counterattacking SCO regarding its attack upon the Linux kernel developers, the GNU/Linux developers, GNU/Linux distributors, GNU/Linux users, and so forth.

It appears that SCO's defense to IBM's Sixth Counterclaim, if it has one, will have to be one that shows either that SCO owns the copyrights to the Linux Kernel and the GNU/Linux operating system and/or that SCO's actions were conducted within the scope of the applicable licenses -- in this case, the GNU GPL. These are typical copyright infringement claim defenses.

However, so far SCO-Caldera has been unable to make a convincing showing to qualified analysts that there is any unauthorized SCO-owned, SCO-copyrighted Unix code in the official kernel.org Linux kernel or the GNU/Linux operating system.

The question of whether SCO's actions were conducted within the scope of the applicable licenses is more in the nature of a legal question for the trier of law, the trial court judge in the SCO-Caldera v IBM lawsuit, to decide. Our guess based on the applicable facts plus the applicable licenses, contracts, letters, agreements and so forth that publicly surfaced to date is the trial court judge will not give his blessings to SCO-Caldera's legal conclusions.

Tom Carey is correct in saying that IBM's Sixth Counterclaim "is a breach of contract claim." Nevertheless, it amounts to copyright infringement claims shrouded under breach of the GPL contract -- for all intents and purposes making IBM's Sixth Counterclaim both a breach of contract claim and a copyright infringement claim.

Conclusions

IBM's second attempt to answer SCO's charges, Defendant IBM' s Answer to the Amended Complaint and Counterclaim-Plaintiff IBM's Counterclaims Against SCO, is a marked improvement of its earlier Answer to SCO's original Complaint.

More importantly, in an excellent implementation of the warrior's creed that the best defense is a good offense, IBM has mounted a very strong counter-attack against SCO. IBM's legal team has laid out a strong set of counterclaims. Much if not all the SCO-McBride FUD (fear, uncertainty, doubt) might now be one heck of a backfire for SCO and McBride.

SCO is starting to find itself on the verge of being inundated by lawsuits against it. The Germans have successfully used legal actions to stop SCO-McBride FUD cold in Germany. Red Hat sued SCO last week. Now IBM's Counterclaims are in effect another lawsuit against SCO.

What goes around comes around.

IBM's Sixth Counterclaim regarding Linux kernel and GNU/Linux operating system copyright issues and SCO's breach of the GNU-GPL is very strong and very persuasive. So much so that anyone or any organization that succumbs to SCO's unfounded demands to purchase a SCO-Caldera UnixWare license in order to use the GNU/Linux operating system likely is foolishly wasting money.

There are at least two reasons for such a conclusion. First is that as alleged in IBM's Counterclaims, there is little, if any, doubt that SCO-Caldera and its CEO Darl McBride have been promoting and publicizing their claims that GNU/Linux users are infringing on SCO intellectual property (IP) and that SCO-Caldera will enforce its IP rights against GNU/Linux users -- including infringement lawsuits.

The second reason is that as alleged in IBM's Counterclaims, SCO-Caldera has no enforceable IP interests in the Linux kernel or the GNU/Linux operating system. SCO-Caldera and McBride know this. Therefore they likely are engaging in trade libel, unfair or deceptive trade practices, consumer fraud, false advertising, barratry, and other such prohibited and actionable conduct.

Perhaps SCO and Darl McBride can back up their claims. But so far they have not done so.

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

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

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

Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification

Linux Makes a Great Gift

Don't Forget the Books

LinuxWorld in New York City -- 21-24 January 2003

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