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Caldera Software Government IBM The Courts Linux News

IBM Moves To Enforce GPL By Summary Judgement 620

gvc writes "So much for the GPL 'never being tested in court.' IBM, in its third motion for summary judgement against SCO, is seeking a permanent injunction against SCO's distribution of Linux, on the grounds that SCO has renounced and violated the GPL, and therefore has no right to distribute the 700,000 lines of IBM-copyrighted code therein. As usual, Groklaw broke the story." We previously reported on another IBM summary judgement from earlier this week.
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IBM Moves To Enforce GPL By Summary Judgement

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  • Just Linux? (Score:3, Insightful)

    by FullCircle ( 643323 ) on Thursday August 19, 2004 @02:35AM (#10009800)
    How about their stagnant Unix that is wrapped in GPL software so that it is functional?
    • Re:Just Linux? (Score:5, Interesting)

      by Mr. Hankey ( 95668 ) on Thursday August 19, 2004 @03:01AM (#10009914) Homepage
      The crucial element here is that the mentioned lines are copyrighted by IBM. Copyright law (and not the GPL) is what gives IBM the ability to prevent SCO from distributing the software. The GPL only enters into it because without it, SCO has no license to distribute the software at all.
      • Re:Just Linux? (Score:5, Interesting)

        by squidinkcalligraphy ( 558677 ) on Thursday August 19, 2004 @03:06AM (#10009939)
        And what makes this more interesting is that SCO just might not be breaking the GPL. The GPL states: "Activities other than copying, distribution and modification are not covered by this License". SCOs continued distribution probably doesn't technically break this, so it may still hold. As someone pointed out on groklaw, the GPL does not cover Darl's mouth.

        This scenario would, however, lend credence to IBM's other arguments (the GPL being valid etc).
        • Re:Just Linux? (Score:5, Interesting)

          by FullCircle ( 643323 ) on Thursday August 19, 2004 @03:17AM (#10009971)
          I think that you hit on what I failed to even imply.

          By SCO claiming the GPL was not a valid license, they are in effect distributing the work of others without a license to copy or distribute that work. There are very few outcomes to this that could be good for SCO.

          Depending on how they turn this around, SCO may not have the permission of the original authors to distribute many of the functional parts of their own product. The Unixware kernel doesn't do much on its own.

          • Oh the irony. (Score:5, Insightful)

            by Inominate ( 412637 ) on Thursday August 19, 2004 @09:00AM (#10011403)
            In accusing IBM of copyright infringment, while being extremly sketchy on what was being infringed, SCO is now accused of infringing on IBM's copyrights. The only difference is IBM can pinpoint the code they own.

            Who the hell at SCO _ever_ thought this would be anything but a disaster?
            • Re:Oh the irony. (Score:5, Insightful)

              by jdreed1024 ( 443938 ) on Thursday August 19, 2004 @09:57AM (#10011882)
              Who the hell at SCO _ever_ thought this would be anything but a disaster?

              Oh, I don't think anyone was *that* stupid (No, not even Darl). But as history has demonstrated many times, if you're in the right place at the right time, disasters can be very profitable. This isn't about SCO owning Linux or UNIX -- it never was. This is about a calculated attempt to manipulate investors and the stock market.

        • Re:Just Linux? (Score:5, Insightful)

          by FullCircle ( 643323 ) on Thursday August 19, 2004 @03:24AM (#10010002)
          I hate to double reply, but I can't edit my previous post.

          SCO is breaching the GPL. Remember how you could buy a license for Linux, but you could not redistribute it? That's a GPL no no.

          Thanks to those few who signed a legally binding contract for SCO/Linux licenses, there is concrete proof that SCO is distributing Linux illegally.
        • Re:Just Linux? (Score:5, Insightful)

          by killjoe ( 766577 ) on Thursday August 19, 2004 @03:28AM (#10010020)
          It's not just Darl's mouth. They said in court that the GPL is not valid. That's very important. By actually filing papers in court disputing the validity of the GPL SCO (the corporation) put themselves into a bind. There are only two possibilities here.

          1) GPL is valid. If this is the case then MS just wasted all the money they funneled to SCO.
          2) GPL is not valid and therefore SCO has no right to distribute IBM code. If the judge rules that the GPL is not valid then this would in all likelyhood make all EULAS invalid and that would be a happy day indeed.

          You notice I said IBM code not samba, gimp or whatever. IBM is suing about IBM code was released under the GPL.

          The case seems pretty open and shut to me but then again IANAL. In fact the more learn about the US legal system more bewildered and disgusted I get. How long has this suit been going on and they haven't even held a trial yet.
          • by Anonymous Coward on Thursday August 19, 2004 @03:33AM (#10010033)
            The GPL is not a EULA!!!
            EULA = End User Liscense Agreement
            The GPL is a liscense for distribution of copyrighted code, it has no bearing on End Users. It only matters to Red Hat, Debian, IBM, etc. A EULA is generally a set of conditions under which you are allowed to USE code ( or usually a work derived from code). EULA's are invalid.
          • Re:Just Linux? (Score:5, Interesting)

            by ajs318 ( 655362 ) <sd_resp2@nospAm.earthshod.co.uk> on Thursday August 19, 2004 @06:04AM (#10010612)
            If the GPL is ruled invalid it would impact on the validity of EULAs, for the following reasons:

            EULAs such as Microsoft's are actually already illegal (or at least, not enforceable) in many jurisdictions -- where your rights under the law are sacrosanct, nothing can attempt to abridge them. Even if you promise not to do something that the law specifically says you have a right to do {such as reverse-engineering software for certain purposes, i.e. academic study or developing interoperable products}, you can't actually be held to that promise. In some jurisdictions, it's actually an offence to ask someone to make that empty promise.

            The GPL -- as clearly stated in the Preamble -- makes no attempt to restrict your statutory rights. Instead, it gives you additional rights over and above your statutory rights, subject to certain conditions. These are clearly not inalienable rights.

            So much for the difference and apologies to everyone who already knew that, but some people don't so it needed saying. The similarity is the way the licence is delivered and accepted without feedback to the licensor. (The GPL may even be at an advantage here, thanks to its wording; Sections 4 and 6 say if you receive GPL software from someone who is acting in breach of the GPL, this does not prejudice your rights as long as you play along. Section 5 clearly states the consequences of non-acceptance -- that you retain your statutory rights and nothing more.)

            The only reason why the GPL could be found to be invalid is because the proper procedure to create a legally binding contract is not being followed -- there is plenty of evidence showing that is perfectly OK to give someone limited permission to make copies of a copyrighted work, and to impose conditions on their doing so. If this is the case, then any EULA which also failed properly to create a legally binding contract would be null and void.

            Finally, even if the GPL is found to be valid, this does not mean that EULAs are valid. In fact, it might well substantially weaken EULAs; a "typical" EULA is almost certain to be read out in court as part of the proceedings, and it's very likely that someone will pick up on it.
        • Re:Just Linux? (Score:5, Interesting)

          by MuParadigm ( 687680 ) <jgabriel66@yahoo.com> on Thursday August 19, 2004 @03:36AM (#10010049) Homepage Journal

          SCO's sales of "SCO IP in Linux" licenses, such as the license it sold to EV1, clearly breach the GPL, in that they a) charge royalties for GPL'd code, b) restrict the licensee to use only, and don't permit modification, and c) infringe the copyrights of all the other Linux contributors who have not given permission to license their code under any other terms but the GPL.

          On the other hand, IBM's other arguments that SCO is out of compliance due to "repudiating" and "disclaiming" the GPL might not be valid. SCO probably has a free speech right to criticize, repudiate, and disclaim the GPL without forgoing its benefits unless they actually breach the license.

          Since they have breached the license via their "SCO IP In Linux License" scam, I expect the summary judgement to be granted in IBM's favor on those grounds.

          • Re:Just Linux? (Score:4, Informative)

            by surprise_audit ( 575743 ) on Thursday August 19, 2004 @05:21AM (#10010457)
            IBM's other arguments that SCO is out of compliance due to "repudiating" and "disclaiming" the GPL might not be valid.

            Except that, as someone pointed out on Groklaw, SCO repudiated the GPL in court filings . As I understand it, even a box of rocks wouldn't be dumb enough to assert something in a legal document and then expect to be able to blow it off with "hey, that was just me exercising my right to free speech".

    • Re:Just Linux? (Score:5, Insightful)

      by ron_ivi ( 607351 ) <(sdotno) (at) (cheapcomplexdevices.com)> on Thursday August 19, 2004 @03:11AM (#10009952)
      " How about their stagnant Unix that is wrapped in GPL software so that it is functional?"

      How 'bout a name change: GNU/SCOUnix! GNU/Openserver Cool.

      More seriously, I'm starting to think it should be called GNU/Linux not so much because of Stallman's contributions of lots of user mode software, but rather in honor of his brilliance of the GPL. No matter what people say about RMS, the GPL is beautiful.

      Note that this IBM move wouldn't work with the BSD license. To a large extent I think the GPL is a big part of the reason why Linux seems to havae more momentum than BSD. Companies like RedHat, IBM, Tivo, Linksys etc seem far more likely to "give back" to Linux; meaning a bigger pool of contributors.

      If this works, I'll switch from thinking GNU/Linux is a silly name to thinking RMS deserves it for his legal brilliance that he foresaw long before anyone thought it might be important.

  • by CountBrass ( 590228 ) on Thursday August 19, 2004 @02:36AM (#10009803)

    Well if IBM get their judgement this could be just about the best news for free software since GNU started.

    It's certainkly worth the trauma of the last year to get the GPL publicly upheld in court.

    Here's three cheers for IBM (and SCO;-).

    • by Anonymous Coward on Thursday August 19, 2004 @02:55AM (#10009888)
      IBM (the big evil, the microsoft of the 80's) defending the GPL (the move started to combat proprietary lockin like IBM's). Richard Stallman must be turning in his... oh, wait.
    • by ArcticCelt ( 660351 ) on Thursday August 19, 2004 @03:04AM (#10009931)
      I don't know why but seen IBM doing this stuff kinds of reminds me of Darth Vader changing camp after having been in the wrong one for most of is existence. :)
      • by ron_ivi ( 607351 ) <(sdotno) (at) (cheapcomplexdevices.com)> on Thursday August 19, 2004 @03:18AM (#10009977)
        Today our buddies at Forbes [forbes.com] had a different spin.

        SCO hits back at IBM dismissal bid
        Peter Williams, 08.18.04, 4:15 PM ET

        The SCO Group has responded robustly to IBM's attempt to have a US district court dismiss some of SCO's main claims in its multi-billion dollar lawsuit. ...

        The rest of the article doesn't really say why they thought the response was "robust", though.
      • I don't know why but seen IBM doing this stuff kinds of reminds me of Darth Vader changing camp after having been in the wrong one for most of is existence. :)


        So, do you mean that now IBM will remove its evil looking mask to reveal its ugly face and then die silent yet glorious death on Linus' lap? ;-)

        Raf
      • by Citizen of Earth ( 569446 ) on Thursday August 19, 2004 @03:29PM (#10015984)
        I don't know why but seen IBM doing this stuff kinds of reminds me of Darth Vader changing camp after having been in the wrong one for most of is existence. :)

        But IBM *lost* the Clone Wars. Or is this saying something I didn't know about Episode III?
  • by example42 ( 760044 ) on Thursday August 19, 2004 @02:36AM (#10009804)
    I only hope a difinitive judgement will be issued to answer the (legal) question of the GPL once and for all. IIRC, the question of the GPL has been brought up before but has always been settled out of court.
    • Me too. Though it may not last. Note that SCO's market cap ($62.1 million) is just about at it's cash value ($61.3 million).

      If they fall a couple more percent, someone could buy them for their cash, if (and its a big if) they can make the legal risks go away. My guess is IBM won't buy them, for fear of setting a "please sue us" precident (like I think EV1 and Sun did by payingn SCO). But perhaps someone with a intellectual-property agreement with IBM that has a "we won't sue each other" clause could.

  • by Loligo ( 12021 ) * on Thursday August 19, 2004 @02:36AM (#10009805) Homepage

    A major corporation using the legal system to enforce copyrights involved in a license the OSS movement agrees with?

    What to do, what to DO...

  • by numist ( 758954 ) <.ten.tsimun. .ta. .maps.> on Thursday August 19, 2004 @02:36AM (#10009807) Homepage
    Since the GPL has never really been tested in court (that I know of) it will be interesting to see how it is disassembled and twisted by the SCO lawyers to become ineffective.
    IBM has a decent case, it brings to mind the image of a kitten poking at a Rotty.

    The GPL is well written enough, it should stand up in court, even against SCO.
    At least, I hope it will, or else we have a whole new battle on our hands...
    • GPL and Copyright (Score:5, Insightful)

      by sbszine ( 633428 ) on Thursday August 19, 2004 @02:41AM (#10009823) Journal
      Remember, if the the court finds the GPL to be invalid, regular copyright law takes effect and IBM can sue SCO for copyright infringement over the IBM-written code in Linux. The court may not have a position on the GPL yet, but it certainly understands copyright.
      • Re:GPL and Copyright (Score:5, Interesting)

        by Spock the Baptist ( 455355 ) on Thursday August 19, 2004 @03:32AM (#10010027) Journal
        I think that IBM has managed to devise a legal "fork". IOW IBM has created the legal equivalent of a logical tautology.

        IF A THEN B, IF NOT A THEN B.

        IF the GPL is Valid then SCO has violated Copyright law.
        AND
        IF the GPL is InValid then SCO has violated Copyright law.
        THEREFORE: SCO has violated Copyright law.
        QED

        A no win situation for SCO.

        Poetic justice based on hard Logic. Gotta love it.
        • Re:GPL and Copyright (Score:4, Interesting)

          by jimicus ( 737525 ) on Thursday August 19, 2004 @04:46AM (#10010290)
          This will probably be modded down but...

          Not really. SCO's original argument was that "the GPL is invalid, developers are effectively putting their work into the Public Domain".

          If the court agrees with this, the GPL becomes invalid and SCO are well within their rights to do what they want with the code.

          It's not quite over yet.
          • Re:GPL and Copyright (Score:5, Informative)

            by walt-sjc ( 145127 ) on Thursday August 19, 2004 @06:27AM (#10010686)
            That's an insane argument that has no basis in law. Anything you write is by default, copyrighted. It's a stronger copyright if you explicitly state that it is copyrighted. Even stronger if you register it. Code you write is only "public domain" if you explicitly say so.

            As others have stated correctly many times, if the GPL is invalid then normal copyright applies. It wouild be unthinkable for the court to deny copyright protection to Linux, which is explicitly copyrighted. GPL and copyright are not mutually exclusive - they are very distinct and separate. The code is copyrighted. The copyrighted code is licenesed to you under the specific terms listed in the GPL. Even if the terms don't apply, the copyright still does.

      • Re:GPL and Copyright (Score:3, Interesting)

        by Stauf ( 85247 )
        ...and IBM can sue SCO for copyright infringement...

        Not only that, but anyone with any code in the kernel or anything else that makes up SCO Linux may also sue, and if they do it after IBM wins such a suit, they'll already have been found guilty. I don't think I'll be the only one amused when SCO starts hemmoraging punitive damages.
    • by fishbowl ( 7759 ) on Thursday August 19, 2004 @02:58AM (#10009900)
      > Since the GPL has never really been tested in
      >court ...

      You know, my lease with my landlord has never been tested in court either, but I don't think anyone would reasonably presume that I don't need to pay rent, or that I can be kicked out without a reason.

      I have to wonder whether people who say "the GPL has never been tested" have actually READ the GPL. It is quite straightforward. You don't need to be particularly used to reading legal documents to understand it. Read it, and find one single ambiguity that would require a hearing in court in order to settle its validity.

      If the law doesn't protect the GPL on its face without a struggle at every step, then NO licence agreement is safe. The GPL is as simple, straightforward, and unambiguous as it gets!

      What's to "test" in court?
      • by jesterzog ( 189797 ) on Thursday August 19, 2004 @04:25AM (#10010190) Journal

        You know, my lease with my landlord has never been tested in court either, but I don't think anyone would reasonably presume that I don't need to pay rent, or that I can be kicked out without a reason.

        I more or less agree with the principle of what you've said, but I'm not sure if this is a great example. Even if you and your landlord have never been to court, chances are that the lease agreement is either a clone or a very close copy of a standard and legally scrutinised agreement. It's likely that a similar template agreement has been used in thousands or more lease agreements, and probably that template has been tested in court many many times already.

        Although the GPL is clear, concise and (we would hope) very straightforward, it's still out on it's own to a large extent. It's quite a different way of doing things from any software agreements that came before it (to the best of my knowledge, anyway), and it hasn't been tested. There seems to be quite an incentive to have it tested in court, too, if only to silence the people who might publicly dispute its validity for their own reasons.

    • by mehaiku ( 754091 ) on Thursday August 19, 2004 @03:06AM (#10009940) Homepage

      It has been said the GPL has never been tried in court, because only a fool would try it. Enter SCO:

      SCO has argued in the media, not in court, the GPL is unconstitutional. If the court found this to be true, then SCO is in violation of copyright, since by claiming it unconstitutional, SCO had no right to distribution under standard copyright law. Note in this case, IBM has not signed their copyrights over to the FSF, so still retains copyright on their code. This means, were the GPL found unconstitutional, IBM goes after SCO for standard copyright violation & SCO gets stomped by IBM in court. Regardless, SCO has presented no evidence to the court the GPL is invalid or unconstitutional. (OK, they haven't presented any evidence for anything, in any case)

      Therefore, SCO HAS NO CHOICE but to argue the GPL is valid, otherwise, they themselves are in violation of copyright law and get sued into oblivion.
    • It is a license to distribute a copyrighted work, not a contract.

      You either accept the license and get the right to distribute the work under its conditions.

      Or you refuse the license and you do not distribute the work.

      The courts have nothing to do with it, until the moment the copyright holder decides that his rights have been infringed, and sues. SCO cannot (and of course they know this, but they are playing stupid buggers) claim that "the license is invalid". WTF does that mean?

      If I write a license
  • by kjoonlee ( 226243 ) on Thursday August 19, 2004 @02:38AM (#10009815)
    So much for the GPL 'never being tested in court.'

    It stood up in court recently in Germany, AFAIK

    The German GPL Order - Translated [groklaw.net] from GROKLAW

  • by eidechse ( 472174 ) on Thursday August 19, 2004 @02:40AM (#10009822)
    ...I was reading this thing we had called slashdot, as was the style of the time, when we heard that the GPL was gonna get tested in court...
  • Oh the irony (Score:5, Insightful)

    by Manip ( 656104 ) on Thursday August 19, 2004 @02:41AM (#10009827)
    SCO said their code is in Linux, files motion (breaks GPL) and now it is found that SCO has been illegally distributing IBM's code without licence (as the GPL has been invalidated).

    If IBM's motion is successful this would open the door for IBM to sue SCO for the breach!
  • by Eric119 ( 797949 ) <eric41293@comcast.net> on Thursday August 19, 2004 @02:43AM (#10009835) Journal
    Well, it looks like SCO has really messed up now. "Hey, everybody! The license that let's us use your code isn't valid!" What on earth were they thinking? Talk about shooting yourself in the foot...
  • by JoeLinux ( 20366 ) <joelinux@YEATSgmail.com minus poet> on Thursday August 19, 2004 @02:44AM (#10009837)
    We should put up something from the Open Source Community to thank IBM for standing up for us...they could have dropped us and ramped up AIX again. Or turned around and tried to get linux for itself... Instead, they are defending us. The problem is: What do you get a company that can afford everything?
    • by squidinkcalligraphy ( 558677 ) on Thursday August 19, 2004 @02:51AM (#10009867)
      Rest assured, they are _not_ doing it for the warm fuzzy feeling you get by doing something nice. OSS and GNU/Linux are part of their business strategy. They are in it for the money. That they happen to help us geeks is certainly nice, but at the end of the day, Linux and such would survive anyway.

      But if you really want to get them something fitting, how about some code?
      • by stor ( 146442 ) on Thursday August 19, 2004 @04:37AM (#10010231)
        Rest assured, they are _not_ doing it for the warm fuzzy feeling you get by doing something nice. OSS and GNU/Linux are part of their business strategy. They are in it for the money.

        Sure but they do seem to get the idea of producing a good product/service that people will *want* to buy, rather than forcing their tolls and products down people's throats. Hi Unisys. Hi Microsoft. Hi SCO. Hi Apple. Hi BT. Hi BSA. Hi US Government.

        I for one welcome our new decent-product-producing overlords.

        Cheers
        Stor
      • by Mudcathi ( 584851 ) on Thursday August 19, 2004 @05:25AM (#10010469) Journal
        Rest assured, they are _not_ doing it for the warm fuzzy feeling you get by doing something nice. OSS and GNU/Linux are part of their business strategy. They are in it for the money.

        Hey, put yourself in the shoes of a low-level manager at IBM:

        New PHB: (pokes head into mid-level boss' office) Psst! Hey Boss! Gotta minute?

        Old PHB: Yeah, what is it?

        New PHB: Uh, you know how other companies have problems with employees surfing Fark.com, porn, eBay, et al? Well, I've discovered that our employees are goofing off by... (looks left, looks right, whispers)... developing that free Linux operating system during work hours, when they don't think I'm looking!

        Old PHB: Hmmm... well, if we discipline them, we'll have a morale problem... if we fire them, they'll take our secrets to the competitors... tell you what, why don't you look into this Linux thing, see if we can make some money with it.

    • by willdenniss ( 707714 ) on Thursday August 19, 2004 @03:14AM (#10009964)
      Next time you are in the market for linux server, use IBM hardware. That's what my company has done. The IBM hardware is rock solid so you're doing yourself a favour at the same time.

      Will.
  • by mrchaotica ( 681592 ) on Thursday August 19, 2004 @02:46AM (#10009846)
    Or else the copyright would have been signed over to the Free Software Foundation, and IBM wouldn't be defending it right now.
  • by raistphrk ( 203742 ) on Thursday August 19, 2004 @02:48AM (#10009857)
    I suspect the judge will end up going along with this one, at least temporarily, though there's a strong likelihood it'll be permanent. Until the ownership issues of Linux are sorted out, the status quo is applicable, and the status quo in this case is Linux being distributed under the terms of the GPL. To that end, either SCO is ceding its ownership rights of the code by distributing it, or violating the GPL. Either way, given their current business model, it's pretty apparent that SCO is going to have to stop distributing the kernel.
  • by Narcocide ( 102829 ) on Thursday August 19, 2004 @02:49AM (#10009863) Homepage
    After all, where would Microsoft be right now if it weren't for IBM letting good 'ol Billy G. use them like a cheap inflatable sheep? Its refreshing to see them standing up for Linux, which embodies scientific collaboration, the forward progress of technology and the good of humanity rather than greedy irresponsible corporatism in sheep's clothing.

    Still... I'm suspicious enough to wonder what their long-term (10+ year) plan for linux really is...
    • by killjoe ( 766577 ) on Thursday August 19, 2004 @03:38AM (#10010056)
      "Still... I'm suspicious enough to wonder what their long-term (10+ year) plan for linux really is..."

      Easy.

      Here are the high points.

      By making the operating system and other software open source you undercut MS. Less money MS has the less they can boss you around.

      You concentrate on making good hardware especially mainframes where you are a market leader.

      By boosting linux which can run on many platforms you undercut Intel and thereby giving your chip division chance to compete.

      Continue to build up your services division because open source software needs lots of support.

      Profit!!

      Pretty simple actually.
  • by ArcticCelt ( 660351 ) on Thursday August 19, 2004 @02:51AM (#10009868)
    In the end the big corporate winner of this story will be IBM. By first been a victim and then a defender and hero of the GPL they achieved the impossible: Removing the virtual big "EVIL" tattoo from their forehead and replacing it by the "GOOD KARMA" one.
  • Sell! Sell! (Score:5, Funny)

    by gregmac ( 629064 ) on Thursday August 19, 2004 @02:51AM (#10009871) Homepage
    Looks like even Wall Street sees where this is headed: SCOX [yahoo.com]
  • by AsciiNaut ( 630729 ) on Thursday August 19, 2004 @02:52AM (#10009875)
    Don't forget, large corporations are amoral by nature, and any morality they display is either dictated by statute or is a side effect of their applying the profit motive. If IBM thought it made better business sense to side with SCO rather than mass against it, it would. Follow the money.

    Fortunately, because of the GPL, globalisation and the internet, GNU/Linux or some other functionally equivalent free OS will tend to survive, even if in the future IBM (for good business reasons) decides to change its stance.

    • by MoralHazard ( 447833 ) on Thursday August 19, 2004 @03:20AM (#10009985)
      "Don't forget, large corporations are amoral by nature, and any morality they display is either dictated by statute or is a side effect of their applying the profit motive. If IBM thought it made better business sense to side with SCO rather than mass against it, it would. Follow the money."

      Okay, this is second time I've read kind of statement today, and probably the 50th time I've read it this month. And it's NOT true--it's a broad generalization that seems like it should be right, because we see corporate behavior in the news so often that seems to follow this principle.

      I have worked within several actual corporations (LLCs and INCs, mostly) in my professional career so far, and done business with many, many more. My most recent job (investigations and litigation work) gave me an incredible inside view of high-level goings-on at a number of corporations, big and small. And it's just not that simple.

      Corporate actors (managers, officers, executives) make moral/ethical decisions all the time--sometimes inside their own firm, sometimes outside. Even beyond the basic "ethics means not breaking the law" issue, most of these people are enlightened human beings with consciences. These decision-makers, as a group, will turn down moneymaking opportunities more often than you think in order to stay on the right side of ethics/morals, even if there's no legal or PR risk involved.

      Not everyone acts like this all the time. But since it's not particularly newsworthy when a CEO does the right thing, quietly, in the privacy of a board meeting, you don't see it. This is a classic media bias problem: you assume that the world is a worse place that it really is, because you only get told about the bad things, by and large. That isn't the whole story.

      Remember: Corporations are run by people, just like you, me, Abe Lincoln, and Hitler. We can only except "corporate" behavior to be within the range of human behavior, from the good to the bad, because corporate behavior is just HUMAN behavior. It's situational, sure, but most of the peculiar corporate manifestations (e.g., Dilbert) are really just bureacratic behaviors--you'd find similar stupidity in the government, the military, or non-profit orgs.
      • by Lord_Dweomer ( 648696 ) on Thursday August 19, 2004 @04:01AM (#10010135) Homepage
        Unfortunately for us, when a corporation is publicly held, things don't always go according to the morals of the people in charge. In the end, they have to answer the shareholders, and their job is to please the shareholders, and the only way to do that is by making them money.

        Now, what some have grasped is that by being a "good" corporation, you can potentially make a LOT more money in the long run than you could by being "evil" for the short term.

      • by egrinake ( 308662 ) <erikg AT codepoet DOT no> on Thursday August 19, 2004 @05:36AM (#10010524)

        The fundamental principle in capitalism is to minimize costs and maximize profits, you learn this the first day of business school. And consumers are pretty much only concerned with getting the cheapest products (which is also a fundamental principle of capitalism), so what happens is that the market actually *encourages* immoral behaviour. Media coverage of immoral behaviour rarely has any impact, and this is especially true for multi-national corporations where you would need massive, global media coverage.

        A good example is food production - treating animals good is costly, the most effective way is to have large "factories" where animals barely have any room to live, are drugged with all sorts of weird growth hormones, and are slaugthered as soon as possible. And since consumers want the cheapest food, they most often buy these products, and thereby promote this animal abuse.

        I think Milton Friedman [wikipedia.org], a Nobel prize winning economist, said it best in his essay "The Social Responsibilty of Business is to Increase Its Profits [sdsu.edu]". Let me give you a few quotes:

        "[B]usinessmen believe that they are defending free enterprise when they declaim that business is not concerned "merely" with profit but also with promoting desirable "social" ends; that business has a "social conscience" and takes seriously its responsibilities for providing employment, eliminating discrimination, avoiding pollution and whatever else may be the catchwords of the contemporary crop of reformers. In fact they are--or would be if they or anyone else took them seriously--preaching pure and unadulterated socialism. Businessmen who talk this way are unwitting puppets of the intellectual forces that have been undermining the basis of a free society these past decades."

        "In a free-enterprise, private-property system, a corporate executive is an employee of the owners of the business. He has direct responsibility to his employers. That responsibility is to conduct the business in accordance with their desires, which generally will be to make as much money as possible[...]"

        "[T]he corporate executive would be spending someone else's money for a general social interest. Insofar as his actions in accord with his "social responsibility" reduce returns to stockholders, he is spending their money. Insofar as his actions raise the price to customers, he is spending the customers' money. Insofar as his actions lower the wages of some employees, he is spending their money. The stockholders or the customers or the employees could separately spend their own money on the particular action if they wished to do so. The executive is exercising a distinct "social responsiblity," rather than serving as an agent of the stockholders or the customers or the employees, only if he spends the money in a different way than they would have spent it."

        "[T]he doctrine of "social responsibility" involves the acceptance of the socialist view that political mechanisms, not market mechanisms, are the appropriate way to determine the allocation of scarce resources to alternative uses."

        "I have called [the doctrine of "social responsibility"] a "fundamentally subversive doctrine" in a free society, and have said that in such a society, "there is one and only one social responsibility of business--to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud."

      • by alispguru ( 72689 ) <bob@bane.me@com> on Thursday August 19, 2004 @09:54AM (#10011863) Journal
        Most of the time, corporations behave "morally" because that's the best long-term strategy (see tit-for-tat [abc.net.au]). If you have to deal with the same actors repeatedly, or if the actors can share information about you, your reputation as a fair dealer becomes more valuable than the profit you make off one raw deal.

        Where morals come into play is when tit-for-tat doesn't apply - one of the dealers is much bigger than the other, or has an opportunity to crush the other without repercussions. Microsoft (to pick a random example) screws its partners primarily because it can.
    • Large corporations amoral? This is crap. Large corporations are run by people with all sorts of differing moral attitudes. Look at Rupert Murdoch's empire. His news/entertainment is a complete reflection of the man's political and social desires.

      While the common wisdom is that corporations will only do what's best for their bottom line, the reality is somewhat murkier.
    • by SuperKendall ( 25149 ) * on Thursday August 19, 2004 @03:22AM (#10009995)
      Don't forget, large corporations are amoral by nature, and any morality they display is either dictated by statute or is a side effect of their applying the profit motive. If IBM thought it made better business sense to side with SCO rather than mass against it, it would. Follow the money.

      What you and other people with similar views seem to forget is that even very large companies are usually under the direction of a small handful of people - and sometimes the group is even smaller than that.

      You paint IBM as a directionless ship, blowing where the wind will take it. But the very best companies do not just do what is strictly best for money's sake - instead they have some kind of vision and execute plans to take them there, even if they might leave a little money on the table in the process.

      IBM has done exactly that. They have seen the big "Open Source" event horizion off in the distance, and they are placing themselves in the best position possible for a company to survicve (and thrive) in that kind of storm.

      No matter how much money IBM might have made siding with SCO, they still would not have done so - because doing so is 180 degress aginst the vision they are going for. Companies that truly follow the money might be good for a short hop, but will never go the distance.

      If you want examples of other companies that really act more as extensions of individuals (for good or ill) just look at Oracle, Sun, and even Microsoft.
    • by phorm ( 591458 )
      And thus do a lot of people take the stance that since a corporation is intended to be profitable, it will automatically assume an immoral stance to protect said profits.

      However, corporations in a sense are not so different from most people. Most people exist for personal profit, whether monentary or otherwise. We live to better our own situation, often regardless of consequences to others. Look at how we treat the environment, or abuse "the system" to the detriment of others for personal benefit. By and l
  • by Anonymous Coward on Thursday August 19, 2004 @02:52AM (#10009876)
    Look, it doesnt need to be. The GPL is based on copyright and it is a set of conditions that allow you to use someone's copyrighted work. It needs no testing in law because in law the copyright holder can set whatever (resonable) conditions to allow his / her work to be reproduced or used.

    I cant see IBM loosing this one. i bet they can produce something SCO cant - evidence. This'll be good to watch
  • As usual... (Score:3, Interesting)

    by botik32 ( 90185 ) on Thursday August 19, 2004 @02:54AM (#10009886) Homepage
    As usual, M$ will spin it to something like:

    You cannot use GPL because you will be sued in court like SCO. Use our OS, we would never sue you! As compliment we will offer you a free browser, media player and firewall! Yay!

  • by BrynM ( 217883 ) * on Thursday August 19, 2004 @02:57AM (#10009897) Homepage Journal
    How stupid are the people at SCO? (Rhetorical question!) People in forums, comments, jokes and whispered discussions have been saying how stupid they are for still offering their Linux distro since they first started this ruckus. Well, thank god nobody ever pinned it to Darl's shirt! Now it can be used as a legal club on them.

    Bitching aside, it is nice to have a real OVC (Original Villainous Company - IBM) show these wanna-bes how it's done.

  • by tod_miller ( 792541 ) on Thursday August 19, 2004 @03:01AM (#10009913) Journal
    " Man, this just isn't SCO's week. "

    Amen.
  • by Chuck Bucket ( 142633 ) on Thursday August 19, 2004 @03:08AM (#10009945) Homepage Journal
    First IBM embraces Linux, then they position it as the next logical step from AIX, now they're standing up to, and trying to put an end to, SCO's harrassment. Additionally, IBM is doing a LOT of marketing of Linux. Plenty of traditional magazine and television ads are all over, and they clearly spell out the message that not only is Linux good for your business but IBM is the company that can successfully get you up and running. When companies like IBM put out that kind of marketing message it builds mindshare for the entire Linux community.

    Let's not forget that Sun is beginning to do this. There are now full-page magazine ads appearing that feature StarOffice. However, these are of lesser interest to the Linux community in that the ads primarily benefit Sun without the broader appeal of the IBM ads. Still, adoption of StarOffice and OpenOffice will eventually make it easier to switch to Linux.

    Another question is, "what do you think professional marketing' will bring to the table that Linux doesn't already have?" For instance, who in the United States does *not* already equate RedHat with Linux? You're unlikely to increase vendor/product identification in this case through traditional marketing (and RedHat is quite happy to pay for their own marketing). What you *might* do is increase market acceptance of Linux as a product. But IBM is already doing that. If your competitors' ads are working for you, why spend the dollars?

    All in all it adds up to one of the old/stuff tech GIANTS backing the fledgling OS that could, Linux. Thanks IBM, let me start repricing those t41 thinkpads now...

    CB!
  • by zangdesign ( 462534 ) on Thursday August 19, 2004 @03:13AM (#10009957) Journal
    This question hinges on a lot of "ifs", but nonetheless, it must be asked:

    If SCO loses the right to distribute Linux because they repudiated the GPL, would they then be open to lawsuit for distributing other products under the GPL or GPL-like licenses (GNU CC, etc.)?

    If so, perhaps it would be useful to not only go for the jugular, as IBM has done, but to violate the corpse as well.
    • by Xtifr ( 1323 ) on Thursday August 19, 2004 @04:34AM (#10010217) Homepage
      If they lose because they repudiated the GPL (i.e. if the fact that they publicly claimed it's unenforcible, void, unconstitutional, etc.), then perhaps so, because that would seem to apply to all their other uses of GPL'd code. Still, I think the "repudiation" argument is the weaker of IBM's arguments, and I'm not sure it'll fly in court.

      If they lose for violating the GPL, and, in particular, for trying to charge people per-CPU fees for Linux, and for asking them to sign licenses agreeing not to use or distribute the source, then the answer is no. That's a violation of the kernel license, which just happens to be the GPL. It's not a violation of the licenses of any other software that may happen to be under the GPL, since they haven't tried to charge for or restrict the distribution of that other software. On the other hand, the violation claims should be a slam-dunk for IBM.

      It helps to think of the GPL as boilerplate. The kernel has a license, gcc has a license, emacs has a license, etc., and they all just happen to use exactly the same words. Ordinarily, you can't actually "violate the GPL"; all you can do is violate a particular license that happens to be the GPL. It takes some really unusual (and spectacularly stupid) behavior to end up in violation of all the licenses of all software everywhere that uses the GPL. Before SCO came along, I would have said it was impossible. Now...I'm still not convinced it's possible, but if there was ever a company with the proper combination of chutzpah and stupidity to pull it off, it's SCO! :)
  • Welcome! (Score:5, Funny)

    by Brandybuck ( 704397 ) on Thursday August 19, 2004 @03:21AM (#10009990) Homepage Journal
    So much for the GPL 'never being tested in court.'

    Welcome to the club, glad you could make it.

    Sincerely, BSD License
  • Extend and embrace (Score:5, Insightful)

    by panurge ( 573432 ) on Thursday August 19, 2004 @03:24AM (#10010003)
    IBM needs to protect the GPL, because it is now important to its business model.
    Years ago, my then boss remarked that operating system software should be like the sewage system: only noticed on the rare occasions it fails. The sewage system is, in effect, Open Source: anyone can read the rules for designing it, and anyone who follows the rules can connect to it. They will have to pay to dispose of waste through it, but that's another matter. What they pay in taxes is the cost of provision, not an IP tax to the person who designed the system in the first placed.
    Equally, anyone can read the plumbing codes. I don't have to pay a fee for intellectual property to Home Depot every time I want to put a shower in, or connect two pipe lengths.

    On the other hand, Home Depot makes good money, and highly skilled plumbers installing big shower rooms do very nicely, thank you.

    So I think this is where IBM wants to be. IBM wants, in effect, to put in really big and impressive bathrooms. It's easier to do this if someone else, who hardly has to be thought about, is taking care of the water supply and the sewage. It makes sense to give away some of your knowledge of infrastructure, because others will build on it and make your life easier.

    I apologise (a bit) for the extended metaphor, but I think my understanding of the basic economics is right. SCO builds high priced sewage pipes and charges a premium for knowing how to do it. They also want everybody else who digs holes in the ground to pay them a tax. In doing this, they are trying to backflow (sorry) against the entire trend of technology development. IBM, in classic Adam Smith mode, look to their own advantage but, without intending to, benefit everybody.

    • by maxpublic ( 450413 ) on Thursday August 19, 2004 @03:47AM (#10010084) Homepage
      IBM, in classic Adam Smith mode, look to their own advantage but, without intending to, benefit everybody.

      Even better, they're being honest about it. Notice that IBM isn't claiming to be a 'white knight' charging in for 'the greater good', or some such leftist rot. They've been pretty clear that they back Linux because it's good for them and their business, and not for any other reason.

      I could get used to this new IBM. No grandiose claims, just smart and honest business. That's a company I could put money into. And it's a whole hell of a lot different from the IBM we knew and hated when I was young.

      Max
  • by toddhunter ( 659837 ) on Thursday August 19, 2004 @03:28AM (#10010019)
    I think we should all get behind IBM and support them. Does anyone know if they have a pay-pal account where we can make donations?
  • by achurch ( 201270 ) on Thursday August 19, 2004 @03:29AM (#10010021) Homepage

    If you read the MSJ closely, IBM is actually saying: (emphasis added)

    As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works and therefore
    infringed IBM's copyrights.

    So this isn't really about the GPL--it's a simple copyright infringement issue. They're saying to the judge, "we own this code and SCO is distributing it without permission, so stop them".

    On the other hand, they do go on to add:

    Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.

    So if SCO is going to mount a defense to this MSJ, they'll have to argue for the GPL, essentially countering their own earlier claims that the GPL is invalid and forcing them to tell the judge "uh, we were wrong". This isn't about IBM "testing" the GPL, it's about them grabbing two big boulders and squishing SCO between them. (:

    If the GPL did end up being ruled on by the judge, about the only ruling I could see is that the GPL is valid and therefore SCO has not infringed IBM's copyrights--but IANAL, so what do I know?

    • Correction (Score:3, Informative)

      by achurch ( 201270 )

      It turns out that in the Memorandum in Support [tuxrocks.com], IBM does invoke part of the GPL--specifically, the part that says "no relicensing":

      63. The GPL and LGPL provide that a person may rely on the GPL or LGPL as a license or grant of permission (to copy, modify or distribute code covered by the GPL or LGPL) only if the person abides by the terms of the GPL or LGPL. The GPL and LGPL expressly provide that any attempt otherwise to copy, modify, sublicense, or distribute the code licensed under the GPL or LGPL "is

    • by BobaFett ( 93158 ) on Thursday August 19, 2004 @04:00AM (#10010131) Homepage
      This is about GPL, because this is how GPL works. You cannot "violate GPL", you can refuse to accept it (explicitly, or, as IBM claims in this case, by virtue of your conduct), then you don't have the rights which GPL would grant you. So far, no problem, nothing bad is going to happen to you, yet. But now you can commit copyright infrigement if you copy the code copyrighted by someone else, unless some other license or contract gives you the right to copy. The latter would be a consistent defense for SCO since they seem to claim that they gain full rights for anything which touches "their" code, the original Unix codebase, in any way. Not that I expect anyone to salute when they fly this.
    • by Trackster ( 761525 ) on Thursday August 19, 2004 @04:06AM (#10010146) Journal
      If you stop at this paragraph:
      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. SCO has literally copied more than 783,000 lines of code from these sixteen packages of IBM's copyrighted material. As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works and therefore infringed IBM's copyrights. It can be interpreted it that way.

      If you go on to read the next paragraph:
      Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.
      You can see that the axis of this motion really is the _GPL itself_.

    • More likely SCO will counter on the basis that IBM had no right to put the code into Linux in the first place. That has been their angle all along, and until it is shown in court to be the fallacy that it is, it might buy them a ticket out of summary judgement.
    • by ctid ( 449118 ) on Thursday August 19, 2004 @04:55AM (#10010332) Homepage
      If the GPL did end up being ruled on by the judge, about the only ruling I could see is that the GPL is valid and therefore SCO has not infringed IBM's copyrights--but IANAL, so what do I know?

      The Memorandom of Support makes this clearer. Either: (a) SCO's claim that the GPL is invalid and unconstitutional etc etc is true, in which case the only legal basis for SCO distributing IBM's work is destroyed. So they've been distributing IBM's work illegally. Or: (b) SCO's claim that the GPL is invalid is false, in which case they have breached the GPL by demanding license fees (from Autozone amongst others). Breaching the GPL in this fashion means that SCO loses the right to redistribute the GPL'ed software (per the GPL, which is valid in this line of argument). So they've been distributing IBM's work illegally.
  • The interesting part (Score:4, Informative)

    by file-exists-p ( 681756 ) on Thursday August 19, 2004 @03:46AM (#10010079)
    Memorandum in support [tuxrocks.com], pages 26-28. A must read!
  • by Anonymous Coward on Thursday August 19, 2004 @05:29AM (#10010490)
    So much for the GPL 'never being tested in court.'

    It is most unlikely that the GPL will be tested in court, because it is unlikely that SCO will challenge it in court.

    Things that get challenged in court are things that have some ambiguity or uncertainty to argue about. The reason the GPL has never been tested in court is that nobody has ever devised a legal attack on it that a judge might take seriously. FSF lawyers have written to many companies which tried to get away with violating the GPL. Faced with the credible threat of legal proceedings, all these companies gave in, presumably on the advice of their attorneys.

    The only cases of ongoing GPL violation I am aware of (e.g. Kiss Technology's piracy of Mplayer code) continue because the violator is not faced with a credible threat of being taken to court. The main advantage of assigning one's copyrights to the FSF is that the FSF has the resources (money, lawyers) to sue the bad guys, and has a track record of success.

  • by Trailer Trash ( 60756 ) on Thursday August 19, 2004 @09:59AM (#10011906) Homepage

    This is for all the mouthbreathers on here who have tried to come up with some assinine pseudo-legal reason as to why a breach of the GPL doesn't give way to copyright claims against the breacher. I have argued time and again on here that breaching the GPL simply opens somebody- like SCO- up to statutory damages for willful copyright infringement.

    Well, you don't have to argue with me about it anymore, argue with IBM's lawyers:

    Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.

    Any questions?

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