[Sussex] IBM Counter-sue SCO

[Geoff Teale]

On Fri, 2003-08-08 at 08:05, Steve Dobson wrote:

> Just because SCO haven't presented good evidence doesn't mean they don't
> have any.

They have continuously shifted their public claims as it has been
pointed out several times that they don't own the IP they claim to, and
that their contract with IBM didn't give them the guarantees they
claim.  Moreover, they have continuously refused to disclose the
portions of code on which they base their claim to IBM (never mind the
public).  Instead they have given vague areas of code (such as SMP). 
SCO can in no way claim to have wholly developed SMP in the Linux
kernel, and in this case they have the burdon of proof (notoriously
difficult with derived works).  If they do not do disclose their exact
evidence to IBM's lawyers shortly then it will become inadmissible in
court and they will _have_ no case.

> That became evident quickly and SCO dropped that part of the case.

Their case has been somewhat dynamic, yes..

> Well we all sort of knew that there was a lot of "innovation polution"
> in the *nix world - I am hoping this case will sort it all out.

ONe way or another, if it comes to court it will remove either SCO
Unixware or IBM AIX from the marketplace - thats going to remove some
confusion.

> I find this difficult to believe.  The CSO of SCO either has:
> 
>   * No clue on how IP clames go (history suggests he does after all
>     he has made a business out of buying companies and then suing
>     others over the IP rights of his new company), or
> 
>   * He does not understand the added complexities of the *nix family
>     tree and the effect on this case (my view as I think he is from
>     outside the computer industry).

The latter is probably correct.  Bear in mind that the IP specialist was
bought in after SCO decided to bring the case - he is following the best
strategy he can with what he has to work with.   It's fair to say that
SCO were on the brink of collapse anyway - this is a desperate last
move.

 
> > - Red Hat are suing SCO for suggesting that they [Red Hat] were behaving
> >   improperly in distributing Linux.
> 
> Isn't counter-suing the name of the game in the US?  I always though
> that if you didn't counter-sue then you were guilty.

Red Hat as yet have not been sued.  SCO have just been going around
slagging them off.  

> Dito on the counter-suing.  As for the AIX infringements if he is ignorent
> of the *nix family tree then this gives IBM a way of wiping SCO of the
> planet.

I don't think any court would make a judgement on whether or not a
company had counter-sued, but it certainly looks better, yes.  Moreover
it changes the agenda of the case, and puts SCO on the defencive.  More
importantly it allows IBM to put pressure on SCO - you drop yours and
I'll drop mine.  

> This is the one I want to see.  If SCO have got GPL code IN Unixware then
> this is the very case the FSF can use to prove the GPL in court (which is
> needed).  I could also fource the SysV code in to the public domain as 
> the FSF could clame as SCO knowing inserted GPLed code into Unixware then
> the GPL must now apply to that source.  This would also be a very good
> think.  I hope that RF & IBM get behind the FSF.

The GPL has already been tested in court in small cases, but there has
been no large scale case.  The FSF are unlikely to go to court against
SCO unless the IBM case against SCO is proven - the FSF simply do not
have the funds to bring an action on that scale without backing, and
they cannot afford to lose a landmark battle over the GPL.

One final thought.  If you're a business using Linux, you should not
even consider buying a SCO license.  You have not personally broken any
contractual arrangement with SCO, you never had one as it stands right
now - until you buy a license, or SCO manages to win the court case, you
have no obligations to SCO at all (IBM of course has some obligations as
they had a contract with SCO).

Moreover, remember, copyright infringement is _not_ a criminal offence,
and it is certainly not theft (no matter what Software vendors, FAST,
FACT, the MPIAA, the RIAA or anyone else tries to convince you of).  The
only people who have any part in this dispute right now are SCO and
IBM.  

In order to force you to pay for SCO IP, SCO will have to sue you
personally for the use of their IP - so in no circumstance buy a
license!
-- 
GJT
tealeg at member.fsf.org
gteale at cmedltd.com