IBM on Monday asked the U.S. District Court in Utah to rule that it should win immediately on its eighth counterclaim, which regards copyright infringement. In that counterclaim, IBM asserts that because The SCO Group Inc. has sold Linux—which included more than 783,000 lines of code of IBMs copyrighted material—the court should immediately grant IBM summary judgment and a permanent injunction.
"This motion is a clever ploy by IBM, meant to call SCOs bluff," said Kelly Talcott, an IP (intellectual property) attorney and partner at Kirkpatrick & Lockhart LLPs New York office.
"The focus is on SCOs distribution of its own Linux products," Talcott said. "It has two basic prongs, both based on IBMs contention that it has contributed to Linux hundreds of thousands of lines of its own copyrighted code, in some 16 different functional modules.
"Because it contributed its code to Linux subject to the terms of the GPL [GNU General Public License], IBM says it is the GPL that governs how IBMs contributions can be used," he said.
Heres how it works, according to Talcott. First, "According to IBM, SCO has effectively renounced the GPL. If this is so, says IBM, then SCO has infringed IBMs copyrights by distributing versions of Linux that contain IBM-contributed code."
Talcott said the GPL places strict limits on what royalties can be charged for redistribution of licensed software. "Generally, you are not allowed to charge royalties, but you can collect fees for the cost of copying or transferring the software and for related items such as user documentation," he said.
IBM has characterized SCOs recent efforts to collect royalties on Linux products as a breach of the GPL. "Because SCO has breached the GPL, IBM says, SCO has lost its rights to distribute Linux under the GPL and is distributing IBM-copyrighted code without a license. Thats also called copyright infringement."
In an earlier filing for summary judgment on other grounds, IBM asserted that SCO was still distributing Linux as late as Aug. 4 from its Web site.
Glenn Peterson, an IP attorney and shareholder with the Sacramento, Calif.-based law firm McDonough Holland & Allen PC, said he thinks this and IBMs earlier move are smart ones.
"Although summary judgment motions are difficult to obtain, IBMs pending motion has a reasonable chance of success on its merits, in part because SCO has so steadfastly resisted disclosing the specific facts underlying its claims," Peterson said.
"That pattern could backfire on them now because to defeat this motion, they must show the judge that specific material facts are in dispute and that a trial is necessary to resolve them."
Allonn Levy, an attorney with Hopkins & Carley in San Jose, Calif., said he agrees for another reason. "If IBM prevails, it will have succeeded in scaling back the claims made by SCO and tailoring the focus of the lawsuit. This is a key litigation tactic when dealing with large, complex litigation and would serve IBM well."
SCO, which usually has had a lot to say about its litigation, had little comment on this latest development. "I think all we can say on this one is that SCO will answer IBMs latest legal filing with a response filing in the near future," said Blake Stowell, SCOs public relations director.