IBM Corp. has filed its second motion for summary judgment against SCO Group Inc. in a week, this time focusing on its own claims that SCO has breached copyright by continuing to distribute Unix code IBM contributed to Linux despite having renounced the GNU General Public License.
After over a year of legal to and fro, IBM appears to have decided to go on the offensive in response to Lindon, Utah-based SCO’s claim that it breached contract by contributing Unix code to the Linux operating system.
At the end of last week IBM filed its first claim for summary judgment against SCO, attempting to dismiss the Unix vendor’s claims that IBM breached its Unix Systems V contract by contributing code from its AIX and Dynix versions of Unix to Linux. SCO claims that has rights over derivatives, such as AIX and Dynix.
IBM denied that this is the case, citing testimonial evidence from the executives that drafted the original agreements, as well as Novell Inc’s claim over Unix copyright and SCO’s continued distribution of the code in question via its website.
The final claim is at the heart of IBM’s latest request for summary judgment, within which IBM states that SCO has, without permission, copied code from sixteen discrete packages of copyrighted source code written by IBM for Linux and distributed those copies as part of its own Linux products.
IBM adds that its contributions to Linux are copyrighted and are permitted to be copied, modified, and distributed by others under the terms of the GPL. In its filing IBM states that as SCO has renounced, disclaimed and breached the GPL it does not have permission or a license to copy and distribute IBM’s code.
SCO discontinued the sale of its SCO Linux offering in May 2003 but as recently as August 4, 2004, continued to make available for download from its website version 2.4 of the Linux kernel, according to IBM.
The company also launched an attack on the GPL in August 2003, claiming it to be pre-empted by the US Copyright Act. I predict that the GPL is not stable in its current form because copyright law pre-empts the GPL, said SCO CEO, Darl McBride, at the time.
As well as denouncing the GPL, IBM further claims that SCO has breached its terms by attempting to collect licensing fees from Linux users in the form of its Intellectual Property License for Linux, which purports to give end users the right to use the SCO intellectual property contained in Linux, in binary format only, according to SCO.
IBM has asked the US District Court for a partial summary judgment and a permanent injunction, as well as an oral argument for both its motions. In May IBM also asked the judge for a partial summary judgment that its Linux activity does not infringe SCO copyright. A hearing on that motion, as well as SCO’s motion to dismiss or delay it, is scheduled for September 15.