IBM has turned the tables on SCO in a maneuver that could provide the first major legal test of the GNU General Public License (GPL), and which could leave SCO all but unable to continue selling and supporting products based on Linux and Unix.

In a motion for partial summary judgement filed August 16 in a Utah court, IBM asserts that SCO lost its right to distribute GPL code, including 16 packages copyrighted to IBM, when it “renounced, disclaimed, and breached” the GPL. Should the IBM motion succeed, SCO's ability to do business in the computer industry would be drastically curtailed, given the large amount of software not only in Linux but also in Unix that is now licensed under the GPL.

According to the IBM filing, “The GPL and LGPL provide that a person may rely on the GPL or LGPL as a license or grant of permission … only if the person abides by the terms of the GPL or LGPL.”

The IBM filing goes on to assert that SCO failed to abide by the terms of the GPL when it “repudiated and disclaimed” the GPL, claiming the GPL (IBM quoting SCO, here) “is unenforceable, void and/or voidable” and “violates the U.S. Constitution, together with copyright, antitrust and export control laws.”

IBM further asserts that SCO breached the GPL “at least as early as May 2003 and thus… automatically lost any rights it might have had under the GPL and LGPL to copy and distribute the IBM Copyrighted Works.”

Specifically, IBM asserts that SCO violated the GPL when it attempted to collect royalties or licensing fees for the use of Linux (see this article for a brief history of SCO's efforts to extract royalties from Linux users, including embedded Linux users). According to IBM, in a memorandum in support of its motion, the GPL expressly forbids a person distributing GPL code from adding “further restrictions” such as royalties or licensing fees, except for the “physical act of transferring a copy” — reproduction fees, in other words.

Despite its attacks on and violations of the GPL, SCO continued to distribute products such as its SCO Linux 4.0 that included IBM copyrighted software (among many other GPL- and LGPL-licensed packages), offering the products for public download from its Internet site as recently as August 4 of this year, according to IBM.

The IBM memo sums up the case neatly in this sentence: “By its breaches of the GPL and LGPL, SCO has forfeited any protection against claims of copyright infringement that it may have enjoyed by virtue fo the GPL or LGPL.”

Thus, through its “motion for summary judgment,” IBM is attempting to extract a ruling from a court of law “summarily,” that is, without further debate, that SCO should no longer be allowed to distribute GPL code.

Open source software licensing expert Bruce Perens summed up the motion this way, “IBM's going for the jugular.”

Perens said that if the motion succeeds, SCO won't have to withdraw previous software that they've distributed. “But it's possible they may have to remedy copyright,” he added, suggesting SCO could be forced to pay damages to IBM and other copyright holders of GPL software that it distributed.

Asked if he thought the IBM motion would carry, Perens was neutral, suggesting the motion could be denied if the judge felt the matter might be more appropriate to a separate case.

Groklaw has published a brief story about IBM's motion against SCO. The story includes links to copies of several relevant documents.

The full text of Version 2 of the GNU General Public License, under which the Linux kernel and many other open source packages are distributed, is available here.

 
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