[Am-info] IBM - SIXTH COUNTERCLAIM

[Fred A. Miller]

SIXTH COUNTERCLAIM

                Breach of the GNU General Public License

        74. IBM repeats and realleges the averments in paragraphs 1=20
through 73, with the same force and effect as though they were set=20
forth fully herein.

        75. IBM has made contributions of source code to Linux under=20
the GPL on the condition that users and distributors of such code,=20
including SCO, abide by the terms of the GPL in modifying and=20
distributing Linux products, including, for example, the requirement=20
that they distribute all versions of GPL'd software (original or=20
derivative) under the GPL and only the GPL pursuant to =A7 2(b) of the=20
GPL.
               =20
        76. SCO has taken source code made available by IBM under the=20
GPL, included that code in SCO's Linux products, and distributed=20
significant portions of those products under the GPL. By so doing,=20
SCO accepted the terms of the GPL (pursuant to GPL =A7 5), both with=20
respect to source code made available by IBM under the GPL and with=20
respect to SCO's own Linux distributions.=20

        77. The GPL prohibits SCO from asserting certain proprietary=20
rights (such as the right to collect license fees) over, or=20
attempting to restrict further distribution of any source code=20
distributed by SCO under the terms of the GPL. Based on the=20
misconduct described herein, SCO's rights to distribute the=20
copyrighted works of others included in Linux under the GPL have been=20
terminated pursuant to =A7 4 of the GPL.

        78. SCO has breached the GPL by, among other things, (1)=20
claiming ownership rights over Linux code, including IBM=20
contributions; (2) seeking to collect and collecting license fees=20
with respect to Linux code, including IBM contributions; (3) copying,=20
modifying, sublicensing or distributing Linux, including IBM=20
contributions, on terms other than those set out in the GPL and after=20
its rights under the GPL terminated; and (4) seeking to impose=20
additional restrictions on the recipients of Linux code, including=20
IBM contributions, distributed by SCO.

        79. As a result of SCO's breaches of the GPL, countless=20
developers and users of Linux, including IBM, have suffered and will=20
continue to suffer damages and other irreparable injury. IBM is=20
entitled to an award of damages in an amount to be determined at=20
trial and to an injunction prohibiting SCO from its continuing and=20
threatened breaches of the GPL.

=2D-=20
Planet Earth - a subsidiary of Microsoft=AE.
We have no bugs in our software, Never!,=20
We do have undocumented added features,
that you will find amusing, at no added cost,=20
to you, at this time.