IBM Countersues SCO Group In Linux BattleIBM Countersues SCO Group In Linux Battle

IBM went on the offensive Thursday when it added a countersuit against the SCO Group to the multibillion-dollar legal battle between the companies. The countersuit alleges, among other things, that SCO Group has violated the GNU General Public License, under which it accepted Linux contributions and distributed the open-source operating system. The suit also alleges that SCO Group doesn't have the right to revoke IBM's Unix license--an allegation backed by Novell, the former owner of the Unix System V source code that sold IBM its license.

IBM is also attempting to turn the tables on SCO Group by alleging that SCO has directly infringed on four IBM patents related to SCO's UnixWare, Open Server, SCO Manager, and Reliant HA clustering software products.

In a letter issued Thursday, Bob Samson, IBM's VP of systems sales, wrote to his sales force that "We continue to vigorously defend ourselves. And we see similar resolve across the industry with regard to Linux, just as it has supported important, sometimes disruptive, efforts like TCP/IP and the Internet." Samson also wrote that IBM sees "no merit in [SCO's] claims and no supporting facts."

IBM is seeking unspecified compensatory and punitive damages as well as an injunction to block SCO Group from "misrepresenting its rights" to Unix and from continuing to use IBM patents without permission, Samson wrote.

According to SCO Group, "the core issue is about the value of intellectual property in an Internet age. In a seemingly strange alliance, IBM and the Free Software Foundation have lined up on the same side of this argument in support of the GPL. IBM urges its customers to use non-warranted, unprotected software. This software violates SCO's intellectual property rights in Unix and fails to give comfort to customers going forward in use of Linux. If IBM wants customers to accept the GPL risk, it should indemnify them against that risk. The continuing refusal to provide customer indemnification is IBM's truest measure of belief in its recently filed claims."

SCO Group reiterated that it intends to "vigorously" defend its intellectual property rights against Red Hat Inc. and IBM, and that it will continue to require customers to license Linux implementations as a condition of further use.

SCO Group claims that its licensed Unix source code was used to improve Linux without any compensation to SCO. It also claims that Unix has been used to accelerate the development Linux in two key ways--line-by-line copying of Unix System V source code into the Linux kernel and the copying of derivative Unix code that enables multiprocessing capabilities.

In May, SCO Group send letters out to 1,500 companies worldwide, warning them that using Linux might interfere with SCO's Unix intellectual property. The following month, SCO Group terminated IBM's right to use or distribute any software that's based upon Unix System V. SCO Group said at the time that it was exercising the right of termination granted under the original 1985 Unix Software and Sublicensing Agreements between IBM and AT&T, the original owner of Unix.

Legal analysts agree that it was only a matter of time before IBM used its vast resources to attack SCO Group. "I'm a little surprised it has taken as long as it has," says Thomas Carey, a partner with Boston law firm Bromberg & Sunstein LLP. "IBM has a huge patent portfolio, which could present problems for SCO. If IBM wanted to enforce its patents aggressively, it could cause a lot of problems for a lot of companies."

IBM and other companies that sell Linux and open-source software have been criticized of late for not protecting their customers from suits such as the one SCO Group brought against IBM in March, Carey says. "The average business should find [IBM's countersuit] tremendously reassuring."

SCO Group's claims that IBM and other Unix licensees have leaked SCO's copyrighted Unix System V source code into the Linux kernel, starting with version 2.4, have neither been proved nor disproved. Either way, SCO Group's actions don't sit well with the IT community, Carey says. "If SCO's allegations are true, they're in a difficult position of having to rain on everyone's parade," he says, adding that SCO's most critical mistake could turn out to be its decision to remedy the problem through lawsuits and licensing schemes rather than "giving the Linux community the opportunity to fix the code."