The counterclaims came after Hewlett-Packard Co [HPQ] granted its Linux customers, who abide by strict rules, indemnity against licensing fees sought by SCO and possible legal fees that could result from lawsuits filed by SCO against Linux users.
Bob Samson, the vice president of sales at IBM’s Systems Group, explained why IBM is not interested in indemnifying customers.
IBM and most other industry leaders do not indemnify for open source code, he explained.
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.
As IBM spokespeople have said on the SCO case: IBM wants its day in court and will eagerly and vigorously defend itself once the case goes to trial in 2005.
To that end, IBM has filed yet more amended counterclaims to the SCO lawsuit, which will be tried in the Federal District Court in Utah.
One of the new counterclaims is that SCO has infringed IBM’s copyrights by copying and distributing IBM’s own contributions to the Linux operating system without permission after SCO breached the terms of the General Public License by terminating its own Linux distributions.
In August IBM filed its first counterclaims in the SCO suit, claiming SCO had violated four IBM patents and was distributing UnixWare and OpenServer software that violates those patents, which relate to data compression, graphical menu trees, electronically delivered data objects, and methods for monitoring and recovering subsystems in a distributed/clustered environment.
IBM also alleged that SCO has breached its contracts with AT&T [AWE] and Novell [NOVL] for the licensing of Unix, for which IBM paid $10.1 million, for what it has called an irrevocable license.
IBM also claimed further that SCO has made false statements about AIX (which is a violation of the Lanham Act), and has engaged in unfair competition and unfair and deceptive trade practices. SCO has pulled IBM’s Unix licenses for AIX and Dynix/ptx.
The amended counterclaim related to copyright infringement for seven pieces of code that IBM put into the open source community: Journaled File System, Enterprise Volume Manager, Enterprise Class Event Logging, dynamic logging, Linux support for the PowerPC and Power processors, Omni print driver, and next generation POSIX threading.
IBM says that these were all released under the GPL, and that SCO has no right to stop others from distributing these contributions and cannot itself distribute them because it is in violation of the GPL because it is seeking to restrict the distribution of Linux.
This article was based on material originally published by ComputerWire.
