IBM expands SCO countersuit

Big Blue also criticized recent efforts to indemnify Linux users, saying such plans are of limited value and go against the core values of open-source software.

IBM, one of the biggest corporate proponents of the open-source Linux operating system, came under attack from SCO early this year when the software maker filed a $3 billion lawsuit accusing Big Blue of illegally incorporating SCO-controlled Unix code into Linux software distributed by IBM. The case has gone on to challenge the foundations of the Linux movement, with SCO promising to bill Linux users and threatening legal action against companies and individuals who don't pony up.

IBM filed counterclaims against SCO in August, charging SCO with violating IBM patents, engaging in unfair trade practices, and violating the General Public License (GPL) terms under which SCO distributed software both as SCO and in its former incarnation as Linux seller Caldera International.

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."

In a statement issued on Monday, SCO Group said it is confident that it will prevail in its legal battle with IBM. The company also claims that IBM, not SCO, has brought the GPL into the legal controversy between the two companies. "SCO believes that the GPL--created by the Free Software Foundation to supplant current U.S. copyright laws--is a shaky foundation on which to build a legal case. By contrast, SCO continues to base its legal claims on well-settled United States contract laws and United States copyright laws," according to the statement.

Further, SCO said it did not believe that the GPL would "stand up in court" and called on IBM to indemnify its Linux customers. "By so strongly defending the controversial GPL, IBM is also defending a questionable licensing scheme through which it can avoid providing software indemnification for its customers. We continue to urge IBM to provide legal indemnification for its Linux customers," the statement read.

In a related matter, Bob Samson, vice president of systems sales at IBM, defended Big Blue's decision not to indemnify Linux customers, as Hewlett-Packard offered earlier this week.

In a memo to IBM sales representatives, Samson said such indemnity offers provided little real protection for customers and restrict their ability to participate in 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."

HP responded with a statement defending its indemnification offer.

"The vast majority of HP Linux customers do not modify the Linux source code," according to the statement. "Contrary to IBM's comment, they are of course free to continue to view the source code. In the event of modification to the code, HP would work with those customers on a case-by-case basis. IBM seems to be trying to drive a wedge where none exists. HP is driving Linux in the real world by standing by its customers."