[Sussex] IBM Counter-sue SCO

[Steve Dobson]

Hi Geoff

On 8/8/03 Geoff Teale wrote:
> 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.

I agree - but my point was that until they have to "put-up or shut-up"
we can not know for sure.  They could just be monitoring the debate and
coming up with a better defence against those points.

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

I though they were - but I site here corrected.

> 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.

I was just taking a cheep shot at the American "sport" of suing.

>                                                               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.  

Agreed

> 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.

I remember reading (but can't find now) on the page of the FSF lawer
that he had not stood up in court and was looking forward to doing
so.  The reason he gave for not standing up in court was that when 
the company under question (after consultation with their lawers) backed
down.

> 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).

Agreed if the vendor is IBM, RH, SuSE, HP, Sun.  It is their responsablity
to license the code they "sell".

But if your a user of a public OS (Debian/Gentoo) then thinks could be
different.

> 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.  

Agreed.  We all downloaded the code in "good faith" that is was okay.
I'm not sure how well that stands up in court...  The "guilty" party is
the one(s) who added copyrighted code into the Linux source.

> 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!

This does agree with other recomendations I've read - but IANAL 
so who am I to say :-)

Steve