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March 31, 2004

IBM asks court to dismiss SCO copyright claims

IBM Corp has asked the court hearing its case against SCO Group Inc to dismiss SCO's claims that it has infringed the Unix vendor's copyright, and has also accused SCO of breaching copyright in several of its technologies in Linux.

By CBR Staff Writer

IBM asked the court for a declaratory judgment that it has not infringed Lindon, Utah-based SCO’s copyright as part of its amended counterclaims against the Unix vendor, seeking to turn the case in to a more simple contract wrangle.

IBM’s amended counterclaims were filed in response to SCO’s recent second amendment of its case against IBM. The Unix vendor originally accused IBM of infringing its intellectual property and copying Unix System V code to the Linux operating system, but dropped that claim in February in favor of two counts of breach of software agreements; two counts of breach of sublicensing agreement; copyright infringement; unfair competition; two counts of interference with contract; and interference with business relationship.

SCO still claims, however, that it has rights over IBM’s own Unix code that has been contributed to Linux and that IBM breached contractual obligations to SCO by adding it to Linux.

IBM is now asking the court to declare that it is not infringing SCO’s copyright. In the filing, IBM states that it does not believe that its activities relating to Linux, or its AIX or Dynix Unix operating systems infringe SCO’s copyrights and asks the court to declare as much, as well as that some or all of SCO’s purported copyrights in Unix are invalid and unenforceable.

SCO’s copyrights with regard to Unix System V are the subject of much controversy. Former Unix System V owner Novell Inc has claimed that it retained copyrights for the code and dismissed SCO’s attempts to terminate Novell’s Unix licenses. That matter is the subject of its own lawsuit after SCO brought a slander of title lawsuit against Novell in January.

SCO has continued to misrepresent that it can, or will, or has in fact revoked IBM’ s right to use Unix System V, without disclosing that IBM’ s rights to Unix System V are not terminable or that Novell has exercised its right to waive any contractual rights SCO claims IBM violated, IBM said in its filing.

The company has also upped its own copyright claims against SCO. In its initial counterclaims IBM originally listed seven copyrights that it believes SCO is infringing through its own Intellectual Property License for Linux by attempting to add licensing terms to the GPL license which covers Linux.

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IBM has now added a further nine copyrights to that list relating to the support for its technologies within the Linux kernel. 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, said IBM in the filing. 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.

Meanwhile, IBM has also dropped one of the patent claims that SCO this week asked to be forked into a separate hearing. IBM has dropped the patent covering navigating menus via a graphical menu tree from its counterclaims, but has included its three other previous claims, covering data compression, verification of electronically delivered data objects, and monitoring and recovering subsystems in a distributed or clustered system.

IBM has also stuck with its other counterclaims: that 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 trade practices, and breached the GPL.

This article is based on material originally published by ComputerWire

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