It was always going to be interesting to see how IBM would respond to SCO’s gadfly legal and business tactics over Linux. If I were in IBM’s shoes I’d be a little annoyed. Mounting a legal case is one thing (after all, like it or not, it can be a viable competitive tactic), but writing to large corporations – presumably many of whom got Linux through IBM – and asking them to pay SCO a license fee – that’s not cricket. (Perhaps it’s baseball).

So it looks like IBM has decided to swat the gadfly. It took its first swipe at it last week, using a 35 page document (the filing of a counter-suit) and it may have felled SCO in one stroke – we’ll see.

(Note: As it turned out, it didn’t).

In legal terms IBM is trying to dismiss the original suit, alleging that SCO has made false allegations, competed unfairly and infringed on IBM patents – and of course it is seeking compensatory and punitive damages. While SCO was claiming billion (a nice headline figure) from IBM, IBM has not named a figure for compensation. This is probably because its primary goal is not to grab headlines, but swat a gadfly.

Strike One

IBM is claiming that SCO has created the false impression that SCO holds the rights to Unix that permit it to control not only all Unix technology but also Linux. I think the point here is that many versions of Unix include code from SCO Unixware, which was after all the foundation Unix that was licensed to all and sundry. Legally it is difficult to know the likely resolution of this point, as it is hard to believe that SCO Unix code has not been passed to Linux given what SCO is doing but it is also likely that bits of SCO Unix code are in HP-UX, Solaris, et al.

There is something interesting here. I have heard rumours several times of code being stolen from its point of origin and being used by another vendor or even used to start up another software business. It is actually difficult to prove, because the victim of the theft cannot easily get to see the source code of the offender. That’s why nobody sees copyright as an effective protection for software, and instead tries to register methods and algorithms.

With Open Source it is different. The source is on display and everyone can know instantly if it was stolen (illegally donated). Indeed if SCO code is in Linux, SCO must have known for a quite a long time. It never did anything, I guess, because nobody came up with the idea of making money through the courts, or if they did, they thought they’d quickly becoming a pariah – which is what is happening to SCO. For SCO, now, it’s win or bust.

IBM is also accusing SCO of violating the Linux GNU General Public License. As it happens SCO is a Linux distributor and the act of trying to charge license fees for already installed Linux does appear to be a direct violation of the Linux License. It is certainly against the spirit of it.

So this is interesting too. IBM is acting on behalf of the Open Source community, in a way, but doing so – in legal terms – to protect its interests that are being damaged by SCO’s hassling for a license fee of IBM customers. This doesn’t look too good for SCO in my view. I get press releases from SCO every now and then which claim that SCO is happily gathering license fees from worried Linux users but. Like most press releases – methinks they do exaggerate.

The Third Strike

IBM’s final accusation is probably the coup de grace. IBM is accusing SCO of violating at least four IBM patents. SCO response to this appeared panicky. It said SCO has shipped these products for many years, in some cases for nearly two decades, and this is the first time that IBM has ever raised an issue about patent infringement in these products. So how does it feel to be ambushed?

SCO dancing around on the moral high-ground and waxing lyrical about intellectual property suddenly discovers that its own IP is tarnished. Just as I have little doubt that there is some SCO Unixware code in Linux, I’m also sure that if IBM says SCO has violated its patents, then it has. IBM tolerated the violation of its patents without action, in the past, because of – do you remember – the IBM antitrust action. IBM believed it could not afford to appear to stifle other companies, especially start-ups, by grinding them into the ground with patent infringement law suits – but it could always appear later on and request a few royalties, if it chose to.

But this case is different, so IBM is pitching a curved ball and SCO is certainly not going to hit this one into the crowd. It’s three strikes and you’re out. Take your bat and walk.