IBM Turns Up The Heat On SCO By Expanding Its Countersuit

by , 11:00 AM EDT, September 29th, 2003

The fur continues to fly in the fight between IBM and SCO; C|Net is reporting that IBM is expanding its countersuit against SCO, and down playing the efforts of other software companies (HP, among others) to indemnify Linux customers. IBM's expanded lawsuits claims further copyright violations by SCO, and asks the courts to rule on SCO's claimed right to impose restrictions on Linux and other code distributed under the General Public License (GPL).

From the C|Net News article, IBM expands SCO countersuit:

In an expanded counterclaim filed late Thursday in U.S. District Court for Utah, IBM added charges of copyright violation based on the GPL terms. The claim cites seven pieces of copyrighted software IBM contributed to Linux under the GPL. By violating the terms of the GPL, IBM states, SCO violated IBM's copyrights.

"IBM granted SCO and others a nonexclusive 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," according to the counterclaim. "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."

A new counterclaim also accuses SCO of "promissory estoppel"--damage caused from a broken promise--saying IBM made important business decisions based on SCO's promise to adhere to the GPL.

The new filing adds a claim for declaratory judgment, seeking a ruling from the court that would state, among other things, that "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."

IBM also states that it believes that indemnification (protection from legal action for using the software sold by the company) of Open Source software is counterproductive to the Open Source community:

"The typical approach to indemnity...we believe runs fundamentally counter to the Linux value proposition," he wrote. "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. 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."

You can read the full article at C|Net .

The Mac Observer Spin:

The indemnification issue is a tough one: Do you try to protect your customers by offering protection from lawsuits if they stay within the guidelines of SCO's claims, or do you not indemnify based on your belief that you, and by inference your customers, have no need to worry about SCO's claims. HP has chosen one path, IBM another. It remains to be seen who is the wiser. It should be noted that HP is not yet being sued by SCO, and so has the luxury of appearing to be doing the right thing. IBM, on the other hand, is forced to choose between knuckling under to SCO, or fighting. We are glad that IBM decided to fight.

As for the expansion of the countersuit, we believe IBM should toss in the kitchen sink if it helps its case against SCO. HP not taking a stand against SCO adds weight, if not truth, to SCO's case, and IBM must do what it can to turn up the heat on the company, while forcing the issue in the courts.

Stay turned, kids, it's going to get bloody.