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IBM's New Counterclaims
Saturday, September 27 2003 @ 08:14 AM EDT

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.

  


IBM's New Counterclaims | 185 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Truckload
Authored by: Anonymous on Saturday, September 27 2003 @ 08:49 AM EDT
Whoa, the whole truckload! SCO now has a serious problem - three lawsuits to
fight and all actually have merit. What's worse, it is now open season on SCO -
every Linux contributor can do what IBM just did - sue SCO for copyright
infringement for licensing other people's work under the licence they didn't
agree to.

Nice... :-)

[ Reply to This | # ]

  • Truckload - Authored by: joebeone on Saturday, September 27 2003 @ 01:43 PM EDT
    • Truckload - Authored by: Anonymous on Saturday, September 27 2003 @ 03:43 PM EDT
      • Truckload - Authored by: kbwojo on Saturday, September 27 2003 @ 05:42 PM EDT
    • Truckload - Authored by: Anonymous on Saturday, September 27 2003 @ 05:20 PM EDT
  • Truckload - Authored by: Alex on Sunday, September 28 2003 @ 12:37 AM EDT
repeat and reallege
Authored by: Anonymous on Saturday, September 27 2003 @ 08:52 AM EDT
Can someone explain the
IBM repeats and realleges the averments in paragraphs $a through $b, with the same force and effect as though they were set forth fully herein.
ritual that's at the start of each counterclaim?

It sounds like #include to me, but I don't see why you'd want/need to do that at all.

[ Reply to This | # ]

OT: Linus NYTimes interview
Authored by: Anonymous on Saturday, September 27 2003 @ 08:52 AM EDT
http://www.nytimes.com/2003/09/28/magazine/WLN104109.html
This page requires registration

Here are some snips:

So does this [SCO] issue matter to you personally?

I've tried to stay away from distractions. But especially since they have
started threatening to send invoices to Linux users, it may eventually escalate
to the point where I have to start taking legal steps.

People position you as the nemesis to Bill Gates. He started Microsoft and you
started Linux, the big competition to Microsoft's dominance of operating
systems. Is that an unfair or inaccurate characterization?

The thing is, at least to me personally, Microsoft just isn't relevant to what
I do. That might sound strange, since they are clearly the dominant player in
the market that Linux is in, but the thing is: I'm not in the ''market.''
I'm interested in Linux because of the technology, and Linux wasn't started as
any kind of rebellion against the ''evil Microsoft empire.'' Quite the
reverse, in fact: from a technology angle, Microsoft really has been one of the
least interesting companies. So I've never seen it as a ''Linus versus
Bill'' thing. I just can't see myself in the position of the nemesis, since I
just don't care enough. To be a nemesis, you have to actively try to destroy
something, don't you? Really, I'm not out to destroy Microsoft. That will just
be a completely unintentional side effect.

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: tcranbrook on Saturday, September 27 2003 @ 09:19 AM EDT
For the market watchers:

http://finance.yahoo.com/q/bc?s=HPQ&t=5d&c=IBM+SCOX

a 20% crash in SCOX.

[ Reply to This | # ]

SCO distributed Linux
Authored by: pyrite on Saturday, September 27 2003 @ 09:23 AM EDT
I kept thinking that this was going to be a difficult point to make. Is it
possible to distribute something under the GPL by accident? Should SCO then sue
itself? Or should it continue to distribute the Linux distribution that is was
distributing and refrain from any further accidental inclusion of source code
that they did not wish to actually contribute?

How is it possible that you could miss almost a million lines of code that
belong to you? They claim it's something like 40% of the kernel and they
don't even notice that? It's very hard to believe.

If any individual puts someone else's copyrighted material that they don't
have the rights to into the Linux kernel, then they are liable. Sure, it would
be nice to resolve it with a sincere apology, but there may be consequences if
someone slips up and lets that happen.

SCO claims that someone else put their code into the Linux kernel, either by
accident, or on purpose. But how long did that go unnoticed and how could one
million lines of code go unnoticed for as long as it went unnoticed?

SCO is trying to prevent IBM (and potentially others) from making source code
available under the GPL that IBM has every right to make available under the
GPL. IBM owns the code, they can make it available under the terms of the GPL if
they want to. SCO should stop trying to stop IBM from doing that.

This is the theoretical question. If someone takes your code that you have not
made available under the GPL and makes it available under the GPL, and you, in
turn, take your own code from this individual and distribute and/or modify the
code and make it available under the GPL yourself, can you turn around and claim
that it was put under the GPL without your knowledge and that you should never
have distributed it? Distributing something comes with the responsibility that
you know what you are distributing, doesn't it? If you miss an IP problem,
it's on you, _too_. But not necessarily just you.

If you don't notice your own allegedly stolen code prior to the time that you
distribute it under the GPL, what is the likelihood that you wouldn't notice
someone else's stolen code prior to the time that you distribute it under the
GPL?

And if you did inadvertently place someone else's code into a Linux
distribution that you were selling and supporting, even if that code was
introduced by someone else originally, you would still be liable - you couldn't
all of a sudden say that you are not liable. SCO is also distributing the very
same code that it claims is not supposed to be there.

SCO is trying to stop big companies from putting source code into Linux.

The one thing that I am curious about is what is going to happen to SCO now.




[ Reply to This | # ]

IBM's New Counterclaims
Authored by: brenda banks on Saturday, September 27 2003 @ 09:33 AM EDT
http://www.lamlaw.com/
check out what this lawyer wrote
can we say IBM did a bad one on sco?
yeps
<G>
i was so excited last nite i even got up during the nite to read new comments
can i sue for exposing me to dangerous health habits
hehehe


---
br3n

[ Reply to This | # ]

Class Action Lawsuit?
Authored by: TimDaly on Saturday, September 27 2003 @ 10:07 AM EDT
Shouldn't SCO's violation of the GPL open them to a
class action lawsuit? If the people who have contributed
to the distributed code can be found in the code CVS can
they have a valid claim for joining such a lawsuit? Is there
a good public website that explains what it would take to
create such a class action suit? Can the FSF bring such a
suit or would it require IBM to do so?

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: Anonymous on Saturday, September 27 2003 @ 12:40 PM EDT
We must sue SCO until we have taken everything that the SCO executives own,
taken their houses and farms, and possessed their wives while they are forced to
watch.

-- Atilla the Hun

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: Anonymous on Saturday, September 27 2003 @ 01:25 PM EDT
I have been reading the Amended Counterclaim from IBM and see some interesting things in there. First, from paragraph 118,
...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 to products distributed by SCO under the GPL except upon the terms set out in the GPL.
Paragraph 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 up in the GPL; and (3) any product into which SCO has incoprorated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert right with respect to that code except as provided by the GPL.
To summarize, anything that SCO distributed under the GPL, or contributed to Linux under the GPL, is now subject to the GPL and SCO cannot take it back. If IBM wins on this point, then Linux is immune from future attacks on the basis that it has incorporated code from the SCO codebase (except that allegations of new inclusions might still be viable). That is, we can stop worrying about someone else picking up the SCO codebase by purchase or bankruptcy and instituting a new suit on the same grounds.

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: kevin lyda on Saturday, September 27 2003 @ 01:54 PM EDT
is there anywhere to get a list of copyright filings? i see ibm registered
those in august of this year. my understanding is that before filing a breech
of copyright lawsuit it's best if you register your copyright. so it might be
kind of fun to see if anyone else is doing the same for their linux
contributions. we could keep a tally of potential lawsuits...

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: greg_T_hill on Saturday, September 27 2003 @ 02:00 PM EDT
The argument that SCO is violating the kernel contributors copyrights is an old
one in the community. I am sure that the IBM legal team has been aware of this
from the beginning. I wonder what the reasons were for holding back on this
course of action until now. Could it be because the GPL is as yet untested in
court. I wonder if they have been holding mock trials and really hammering it
out to see what kind of ground they were on. At any rate, they at least seem to
feel its pretty solid.

I noticed that a memo to the Wall Street Journal was sufficient to smack SCOX
down 20% in about 5 hours. The H-P indemnification notice succeeded in basicly
freezing the price, but that was all.

So lets see, there are four types of "Intellectual Property" :
Trademarks, Trade Secrets, Copyrights, and Patents.

1) Since the Open Group's press release, SCO abruptly stopped proclaiming
themselves as the " owner of the Unix operating system."
For fear of trademark violation?

2) Trade secrets: Linux is published on the internet. 'Nuff said.

3) Copyrights: IBM has specificly identified copyright violations by SCO. SCO's
allegations remain unspecified (for good reason.)

4) Patents: SCO has no patents in Unix. IBM has licensed patents to Linux along
with its code. If SCO is violating the copyrights and no longer has the right
to distribute Linux, is it also violating the patent license? Is there another
shotgun blast waiting for a timely pull on the trigger?

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: Anonymous on Saturday, September 27 2003 @ 02:05 PM EDT
Two in Germany, one in Holland.

D.

[ Reply to This | # ]

My Favorite part
Authored by: Anonymous on Saturday, September 27 2003 @ 02:51 PM EDT
This gets me....

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.

Anyone think IBM will settle out of court?

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: Anonymous on Saturday, September 27 2003 @ 03:39 PM EDT
Something that nobody has mentioned is in addition to losing the right to distibute GNU/Linux, by violating the GPL, SCO is no longer legally able to distribute ANYof the GNU tools found in every Unix Distro. Proprietary SysV equivalents for many haven't seen the light of day for many years.

Not that it matters since the patent Violations effectively invalidate SCO's distributing anything at all. I just hope that when SCO goes away that the fools at Canopy have to foot the bill for putting us all through this.

Can I file a suit for pain and suffering?

[ Reply to This | # ]

Kernel conributors actions
Authored by: tcranbrook on Saturday, September 27 2003 @ 05:20 PM EDT
Legal action by other kernel contributors has been suggested as a further step
in the SCO affair. Perhaps this group could address two question.

1) Would it be desirable to have a sleet storm of individual actions by many
contributors or a single case brought by just IBM, or a single class action
suite?

2) If the above points to a sleet storm, how could this group assist
facilitating such actions?

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: shaun on Saturday, September 27 2003 @ 07:31 PM EDT
Actually I think IBM wants to settle the Unix matter once and for all. Being
that they are in the position to do so I get the feeling that by the time IBM is
done SCO's Unix commodity won't be worth squat.

--Shaun

[ Reply to This | # ]

Bigger than Unix or Linux
Authored by: brenda banks on Saturday, September 27 2003 @ 08:14 PM EDT
this is about IBM's reputation being on the line.sco made it personal when they
started running their mouths.IBM will only be to happy to leave a lasting
impression of what truth and honor is all about


---
br3n

[ Reply to This | # ]

Re: IBM's New Counterclaims
Authored by: RoQ on Saturday, September 27 2003 @ 10:59 PM EDT

Well, it's happened, and I think I recall the reference being made at one point, but I'll repeat it, mostly because it is all too true.

IBM is Brer Fox, SCO is Brer Rabbit, and the GPL is the tar baby (for those unfamiliar with the idiom, here's a difficult-to-read, but more authentic telling of the story. This one is much easier to read and understand, esp. for those to whom the dialect of the Deep South is not your first language).

The moral: the more that SCO struggles and fights, the more stuck SCO's going to be. Plain and simple.

RoQ

[ Reply to This | # ]

OT: Interview with Stuart Meyer
Authored by: Anonymous on Saturday, September 27 2003 @ 10:59 PM EDT
Off topic, but I though the readers here might be interested that Stuart Meyer (IP lawyer who has worked such high-profile cases as Lotus v. Borland and the Napster case) has an interview with C|Net where he weighs in on the SCO v. IBM suit.
Meyer: You've got that new model that comes in with open source. Not only is it new, but it interacts in some way with the proprietary model, as we are seeing now in the SCO case. It's only natural that we are going to see a number of speed bumps. It's inevitable that issues like this come up.

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: Anonymous on Saturday, September 27 2003 @ 11:20 PM EDT
Except that IBM has done many things to mitigate its damages. Its specified
which copyrighted code and patents were being infringed, asked for a declatory
judgement requiring SCO to stop their misleading statements to the public, etc.
IBM can't force SCO to stop this behavior, except through courts, which it is
doing.

Of course, IBM may choose to accept a settlement as it may be seen as getting
something, where if SCO folds, it may not receive much if anything, but that's
something only IBM can decide. I would doubt that IBM would have trouble
convincing a jury that it was doing everything in its power to mitigate its
damages, and get SCO to stop its illegal behavior.

[ Reply to This | # ]

Key paragraphs
Authored by: Anonymous on Sunday, September 28 2003 @ 12:11 AM EDT
I think para 62 to 64 are the most interesting

IANAL, but I can imagine IBM presenting an argument along these lines, asking
the court to determine the license termination issue

1. IBM's AT&T license is perpetual and irrevocable.

if that is not sufficient 2. SCO repeatedly refused to identify the alleged
breaches by IBM

if that is not sufficient 3. Novell waived any right SCO might have to
terminate

etc.

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: Alex on Sunday, September 28 2003 @ 12:36 AM EDT


Isn't that company SCO dumped in the Netherlands also filing suit?

Alex

[ Reply to This | # ]

Redhat suit (OT) I know
Authored by: Anonymous on Sunday, September 28 2003 @ 12:37 AM EDT
SCO actually declare Redhat, Suse etc. illegal.

I found this on SCO.com:
http://www.sco.com/scosou rce/linuxlicense.html,
Many customers are concerned about using Linux since they have become aware of the allegations that Linux is an unauthorized derivative work of the UNIX® operating system.

These customers unknowingly received illegal copies of SCO property

and many are running critical business applications on Linux.

Now they are accusing Redhat and any other Linux distributer of a criminal act. SCO cannot prove ownership of $^!# or they would have went to court NOW.

Does this prove that Redhat has a valid suit, or will SCO weasel-speak rule the day in court?

[ Reply to This | # ]

Stock manipulations
Authored by: Anonymous on Sunday, September 28 2003 @ 01:29 AM EDT
I don't know a whole lot about investing but I've been reading the posts on
the Yahoo message boards for SCOX.

Verrrry interesting.

Check out this whole thread:
http://finance.messages.yahoo.com/bbs?action=m&board=1600684464&tid=cal
d&sid=1600684464&mid=46307

The responses are the interesting part.

I also liked this post, and it makes some pretty specific claims (with times and
all):

http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=1600684464&a
mp;tid=cald&sid=1600684464&mid=46375

Follow up to the "paint" thread view:

http://messages.yahoo.com/bbs?.mm=FN&action=m&board=1600684464&tid=c
ald&sid=1600684464&mid=46331&thr=46331&cur=46331

More about double-bottom breakdowns:

http://stockcharts.com/def/servlet/SC.pnf?chart=SCOX,P

http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=1600684464&a
mp;tid=cald&sid=1600684464&mid=46382&thr=46372&cur=46372&dir
=d

"The double bottom breakdown implies that the buyers who were supporting
the price are no longer able to create demand that is more than the supply, and
prices are breaking down."

Ouch!

[ Reply to This | # ]

Eagan Orion goes wild west (a must read)
Authored by: brenda banks on Sunday, September 28 2003 @ 08:30 AM EDT
http://www.theinquirer.net/?article=11798

awesome
i am still laughing
Eagan fantastic job


---
br3n

[ Reply to This | # ]

Yarro and Didio on PR Trail
Authored by: Anonymous on Sunday, September 28 2003 @ 08:45 AM EDT
Yarro and Didio on PR trail

http://www.sltrib.com/2003/Sep/09282003/business/business.asp

[ Reply to This | # ]

Get rich quick!! Find SCO code in Linux!!
Authored by: tcranbrook on Sunday, September 28 2003 @ 10:55 AM EDT
This is funny.

http://www.pinkfairies.org/

[ Reply to This | # ]

Famous Last Words?
Authored by: Anonymous on Sunday, September 28 2003 @ 12:22 PM EDT
"We don't care how big you are. If you mess with us, we're going to take you on, even to our utter destruction, whatever occurs. We fear nobody, and we are respecters of no persons." ~Ralph Yarro Doesn't that just give you the warm fuzzies? *rolls eyes*

[ Reply to This | # ]

IBM's New Counterclaims
Authored by: brenda banks on Sunday, September 28 2003 @ 01:30 PM EDT
http://afr.com/articles/2003/09/28/1064687667566.html

a new to me news site


---
br3n

[ Reply to This | # ]

One company's proactive response to SCO
Authored by: Anonymous on Sunday, September 28 2003 @ 03:29 PM EDT
http://www.convea.com/News_CCScoWebFace.asp

[ Reply to This | # ]

interesting link
Authored by: brenda banks on Sunday, September 28 2003 @ 04:32 PM EDT
http://tinyurl.com/oz0a

---
br3n

[ Reply to This | # ]

50 billion
Authored by: Anonymous on Sunday, September 28 2003 @ 11:16 PM EDT
At the time that SCO announced amended complaint, week of June 16, the figure
$50 billion first appeared, although not in a direct quote.

SCO has claimed, including in media filings, all IBM's revenues for AIX related
hardware, software, and services.

According to the IBM counterclaim, SCO said to DeutscheBank that damages are
accruing at $1bn per week.

According to various press reports, Darl and others have said IBM owes them
billions of damges that are accruing every week the case goes on.

As $50bn appears in at least two unrelated articles in June and September, I
think it is fair to guess the figure probably came from SCO.

If SCO thinks it is accuring additional damages at $1bn per week, I'm surprised
that as of now, they aren't claiming ~$65bn damages.

[ Reply to This | # ]

  • 50 billion - Authored by: Anonymous on Monday, September 29 2003 @ 02:30 AM EDT
url for html instead of ppf
Authored by: brenda banks on Monday, September 29 2003 @ 05:44 AM EDT
http://tinyurl.com/p0sn

that way you get google cache
thanks to the yahoo group posters for the help they gave in this

---
br3n

[ Reply to This | # ]

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