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IBM Will Answer SCO's Amended Complaint by Next Week
Friday, August 01 2003 @ 05:54 AM EDT



I went to the Utah District Court's web site, and I found out that when SCO filed a motion to amend its complaint , IBM said that was fine with them, but they reserved certain rights. SCO filed their Amended Complaint with the court, changing their name from Caldera Systems to SCO and adding their Sequent claims, on July 22.

Now, IBM says they will be responding by as early as next week, or it's been leaked this is going to happen. IBM hasn't officially said it. The article calls it a "response" and an "answer", but I'm not sure what legal form it will actually be, because the writer doesn't seem to be using the words in a legal sense.

If I am following all the dance steps here correctly, I think SCO's request to file an amended complaint, plus IBM reserving rights, gave IBM a bite of the apple they otherwise wouldn't have. So clever, guys.

The two sides have also worked out a schedule for the trial, which is just the court's normal way of letting each side know deadlines for doing certain things.

If you want to read the documents filed with the court, here is how you can. Go here. Click on the icon that says Pacer. You will then be on a page that, if you scroll down, says "Register for PACER". You will have to agree to pay, but it only happens if you go over $10, which is hard to do at 7 cents a page. Some of it is free anyway.

Search for SCO or Caldera or by Case Number: 2:03cv00294. You probably want Full Formatted Report, but text is also available. Browser issues, so experiment. I don't have to tell you their preferred browser. Downloads will be either pdfs or tiffs and you can also just view. After you register, they mail you your password, so it takes a while to be able to use this. And of course, if you have privacy issues, consider. Enjoy.

The "IBM Memorandum of Defendant International Business Machines Corporation Response to Plaintiff's Motion for Leave to File Amended Complaint" said this:
As will be set out in IBM's response to plaintiff's proposed, amended complaint -- should the Court permit the plaintiff to file it -- plaintiff's proposed, amended allegations are meritless, and judgment should be entered in this action in favor of IBM. Nevertheless, and without conceding the grounds on which it is based, IBM does not oppose plaintiff's motion to amend, subject to IBM's right to move against the proposed amended pleading.
These guys are good. The first sentence is sort of a request for a miracle, namely asking the judge to say the whole case shouldn't even go forward. They didn't expect that, but they put it in, cause, hey, you never know. It shows they think of absolutely everything. Then they reserve their rights.

The funny thing I noticed about all this is, SCO changed their name back in May, and the date on the copy of the amended complaint I got from their web site had a June date. They didn't know back in June that the judge would grant their motion to amend. And they didn't tell us anything about this at the time, that I recall or can find now.

The schedule I see on the Pacer court list says they filed a motion for leave to file an amended complaint on June 16. The judge didn't give them the right to file an amended complaint until July 10. The Amended Complaint filed with the court has a July 22 date, not June. The Amended Complaint I downloaded off of SCO's web site has the June date on the document and the page lists it as "June 16, 2003 -- SCO's Amended Complaint ". It's all very odd. They surely didn't know on June 16 or any other day in June that the judge would grant their motion. I mean, IBM didn't oppose, so it was probable. But not certain. They kind of didn't tell us the whole story in June.

I haven't had time to evaluate fully everything in the documents, looking line by line for anything that may be different, but on first glance they seem identical, except for the dates. What it tells me, once again, is that SCO's public pronouncements are ... well, you know. With these guys, you need to check absolutely everything.

Here's something of interest for you Aussie warriors. A lawyer down under says this about SCO's offer of a license:
Locally, the recommendation to confess all to SCO or face a perp walk (where a "perpetrator" is paraded in front of the media) has intellectual property lawyer and partner at law firm Clayton Utz, John Collins shaking his head.

"If you don't know whether or not you have a valid licence because there is uncertainty as to the providence of the software and who actually owns the copyright, then to walk up and drop your pants to the person who is likely to sue you sounds a little counter-intuitive-and a bit uncommercial," Collins says.

Collins argues that just because uncertainty exists as to the ownership of the software copyright, the onus remains on the person claiming ownership of copyright to prove this.

"A user who believes they are entitled to (legally) use a product doesn't have to prove to someone asserting a contrary right that he is correct. It's up to the people who assert that they own the copyright to get their ducks in a row and be in a position to prove it.

"The Copyright Act here is quite explicit about that. A copyright owner can't make unjustified threats, that is assert that it will be an infringement of copyright if they haven't got their own ducks in a row from the point of view of being able to prove they are the copyright owner.

"The Copyright Act (section 202) provides a counter balance to those sorts of statements. Someone asserting to be a copyright owner cannot make a threat of infringement unless, in practical terms, they are confident they are the copyright owner. If there is any doubt about that then they could be in deep trouble in asserting infringement. Section 202 gives to someone against whom a claim is made a right to go to (the Federal) Court to get these people to stop making these threats," Collins told Computerworld.

  


IBM Will Answer SCO's Amended Complaint by Next Week | 26 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 06:07 AM EDT
I think I know why SCO didn't file it's amended complaint until July 22.

SCO's initial complaint had one instance of the word "copyright": that was in paragraph 80 and was in reference to the GPL.

The amended complaint has 9 instances of "copyright" including this statement:

SCO is also the sole and exclusive owner of copyrights related to UNIX System V source code and documentation and peripheral code and systems related thereto. (from the paragraph 29 of the amended complaint posted on SCO's web site, dated June 16, 2003)

Since SCO didn't have the Unix System V copyright registered in their name until July 21st, they couldn't file a complaint asserting copyright infringement until then.


John Gabriel

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 07:22 AM EDT
The Pacer FAQ has this to say about charges:

"Our charges are not based on the pages you view, print, or download, but on the results of the search."

Sounds like you can actually rather quickly run up $10 in charges. It also sounds like you should download all docs in your search results, since you have paid for them anyway. Or am I misunderstanding?


Tim Rushing

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 09:57 AM EDT
It just means that you don't pay extra to download if you view and then choose
to save. The fee is for the search itself. I've never gone over the $10 limit,
and I do this on the job. Note that there is a tool to monitor the fees as you
go, on the left, to make sure. And it's $10 a month, I believe, not a year.
Check on the last. I think that means that you start fresh each month, but do
verify.
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 11:29 AM EDT
As for the discrepancy in the filing dates, I just figured it was SCO just putting the date of "publication" of the amended complaint on their site, and just changed the date when actually submitting it to the court. Good thinking to check it and ensure there's no material differences to the amended complaint (talk about layers of FUD!).

BTW, awesome blog. Thanks for doing this!

--rh


RoQ

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 11:49 AM EDT
The Australian article was interesting; the point starting "Section 202 gives to
someone against whom a claim is made a right.." reminded me about how vague
SCO's copyright allegations are. For example, the "hundreds of files" of code
copied in by IHV's - but these IHVs are conveniently not named. Similarly, there
has been a lack of concrete allegations against RedHat, SuSE etc., though they
have been named. It seems that SCO are quite deliberately avoiding naming
anyone, presumably to minimise the number of counter-suits ;)
Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 11:57 AM EDT
Btw, for UK readers I'll repeat a relevant section of UK copyright law: " 97.—(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy."

This corresponds I think to the "innocent infringment" defence mentioned - was it relating to Dutch law? Anyway, it seems fairly clear that *if* SCO ever produce proper evidence of infringement, then anyone who stops using/distributing the kernel affected on finally getting that evidence can't be liable for damages.

Therefore, buying a licence from SCO now is __________ (fill in the blank) ;)


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 02:56 PM EDT
Well, Dr Stupid, The Dutch situation is that in a civil lawsuit "intent" or "reason to believe" is not relevant for your obligation to pay damages and/or restitute "illegal profits". In a criminal prosecution "intent" or "reason to believe" has to be proven.

The Dutch copyright law ("Auteurswet 1912") allows copying of a computer program when it is for installing and running it. IMO it means that SCO should go after the distributors instead of the users. BTW, Dutch courts generally take the behaviour of the demanding party into account when they determine the amount of damages. Some damage awards amount to a single eurocent...


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 08:20 PM EDT
Hey PJ, off topic, but newsforge linked to you twice today.

You are the SO COOL!!


Alex Roston

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 09:51 PM EDT
Really, Alex? Off topic for *me*? Heh heh. Hardly. URLs please! style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 10:11 PM EDT
Alex, I found them. Thanks for the tip.
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Friday, August 01 2003 @ 11:54 PM EDT
http://www.lamlaw.com/

You may have seen this site by a lawyer. The site is mainly critical of Microsoft but for about a week the author has been posting some of the most critical legal views of Sco that I've found on the net.

"If SCO has a beef over copyrights, contracts, trade secrets or what have you, then the beef is with those who have violated the copyright, contract or trade secrets. Attacking Linux customers is pure extortion and illegal. It is not only illegal but imposes a great potential legal liability upon SCO for harm caused to the Linux business via their inappropriate and illegal means."

"What SCO is doing violates more than the GPL. It violates trademark law as well. Not to mention numerous State laws against unfair competition, federal laws against antitrust, State laws against the intentional (and tortuous) interference with the contractual relations between Linux vendors and customers."

"And, I have to suggest that the lawyers advising SCO right now run the very real risk of being disbarred. "And, why is that? They are giving SCO incredibly poor legal advise and the likely result is that SCO will be sued because of their illegal conduct. And, right now, SCO should be sued. Big time."

Do you think he makes a strong case that SCO has exposed itself to a legal counterattack?


r.a.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Saturday, August 02 2003 @ 05:50 AM EDT
For Dr Stupid, I suggest to introduce the term DiDiotic for both advising to replace the GPL with a non-free SCO licence and following that advice. ;) ;) ;)

r.a. I agree with the position that SCO is vulnarable to legal counter attacks. Recent actions in Germany and Australia show that. For now I think it is a better strategy to fight them in the court of public opinion; most of the journalists place the SCO blurb in context and recent FUD fizzled or backfired.

I seriously wonder whether the SCO "legal" department would be able to handle 32 "fair trade" lawsuits in 24 different countries, requiring document translations in 16 different languages and all that without seriously screwing up at least half of them... I think even IBM's legal department would have a hard time with it. Count the number of countries that have serious Linux support (Europe:24, Asia:12 to 18, Americas: 12, Aus, NZ) and you'll see that it is theoretically possible to juridically DDOS SCO.

If the Linux movement choses that road it will have serious impact on the public image of the whole open source movement. There has allways been a tolerance for commercial application of open source software, even if open source didn't benefit directly. Let's keep up our friendly face for as long as possible!


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Saturday, August 02 2003 @ 08:04 AM EDT
MathFox, Mod +1 Funny!

I heard from a UK Lawyer who said my interpretation of UK copyright law is basically sound.

Interestingly, in UK law there is no special dispensation relating to installing software, so technically many apparently legitimate installations of any software (including Microsoft) could in an absolutely strict sense be illegal! Not that I could imagine a case being brought successfully, or if it was it would provoke some rushed legislation before the government got sued ;)


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Saturday, August 02 2003 @ 09:56 AM EDT
MathFox, DiDiotic it is! From this day forward. It's official. style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Saturday, August 02 2003 @ 09:57 AM EDT
Dr Stupid, can you pls. ask the atty if he or she would like to write a
paragraph or an article about this for Groklaw?
pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Saturday, August 02 2003 @ 07:40 PM EDT
regarding www.lamlaw.com and various comments elsewhere about kernel contributors suing sco, etc etc

I keep reading claims that sco might be counterattacked in various ways. My question is if this is the case, why hasn't it happened yet? And more specifically, if such a counterattack were possible, when and how would it happen?


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 01:38 AM EDT
quatermass, very few people have been angry enough at SCO to start a procedure. However in the SCO Archives on this site you can read that LinuxTag scored a restraining order in Germany, there were other similar actions in Germany and Poland and on July 24th an Australian group filed a complaint with the Aussie fair trade commission.

I don't know how the counterattacks will happen; the Open Source movement is creative enough to find ways that you and I can't imagine. I know that things will start to happen when irritation is at a level "pissed enough to spend time and money on juridical action". It will depend on future actions of SCO and the individuals that start the action. You will hear about it! What I like about the current actions is that they are not in the US and harder to coordinate than a case in Utah state court, two blocks away from the office.

Some personal advice (I am not a Lawyer): If you don't know how to attack, don't even attempt it. If you know how to attack, you should be aware of the risks. Seek professional advice before you start something, there are many stupid ways to blow a case.


MathFox

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 05:36 AM EDT
Mathfox, don't worry about me, I'm not part of any counterattack and have no plans to be. I doubt that I'd have standing or any real issue to pursue any claim in any case. I am not a lawyer either.

I know about Germany, heard about Poland. I also heard about Australia, but that doesn't sound like an actual legal case, more like writing a letter to Australia's FTC equivalent, and then telling the press. I don't think these counterattacks to date have been very effective or done any real damage.

It's self-evident that few people have started a procedure. However, I guess what I'm thinking is that the irritation factor could not go much higher, already. SCO have done pretty much everything that people keep saying will be the final straw to push them over the line. The only things left are for SCO announce their Linux license price or sue some Linux users.

The fact that there hasn't been a serious counterattack makes me wonder if there ever will be. I can imagine SCO v IBM rumbling on for years, while all the while SCO gets a free hand in dissing Linux and grabs a hunk of it and a hunk of license fees, at least in the US, simply because nobody tries to stop them.

Perhaps the fact that Open Source is distributed might be a weakness in this case - there is nobody who is going to step up and be the first to the plate to launch a counterattack.

I also wonder what would have happened if SCO (or some future better-funded SCO) did everything they did, except not sue IBM, maybe even go direct to users or some individual kernel contributors instead. It seems in this case, the Linux movement might have struggled to respond effectively at all. At least the way things have turned out, IBM gets to be on the Linux side of the dispute.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 10:23 AM EDT
quatermass, patience. Eben will not let you down, I feel sure. What matters, in the end, is to win at the end. Sometimes that means strategies that aren't immediately apparent from outside.

As for reasons for "delay", so far, nobody has lost much if any business, because nobody is paying any attention to their threats, except an "analyst" here and there. Ms. DiDio appears dazzled by SCO's every move, but no one else is. If there had been a financial loss, those affected could sue over the loss. At the end of the lawsuit, when they lose, SCO that is, there will be opportunities. Also, if they really do start selling licenses and if anyone that buys one next distributes GPL code with that license on top, I am sure there will be a lawsuit if negotiations don't do the job. FSF tries to negotiate first. You know, Abraham Lincoln, who was a lawyer, said the best lawyers keep their clients out of court. And he is right. People sometimes say that the GPL has never been tested in court. But the reason is because FSF has been so effective in negotiating with violators. It's testimony to its strength.

I am wondering, though, if IBM's new legal documents will include counterclaims. I'd like to see a motion for a preliminary injunction too, if possible. They are in the best position to sue of anyone. Linus probably could sue, but he has been quoted as saying he hates lawsuits, so a reluctance to do so may be a factor. It wouldn't amaze me if some regulatory body, like the SEC, is watching developments. Distributors could too, but if they haven't lost business, what do they ask the court for? Your honor, we want you to make SCO be nice?

IBM can afford to fight, and so far, they are very effective. Should they win, that does take care of the problem. Let's wait and see what they do this week in their papers. And day by day, as SCO moves from statement to statement, action to action, they are building opportunities for actions against them.

On your final point, you are absolutely correct in noticing that a lone coder might be vulnerable (though I'm sure the community would rally round), and the solution is to GPL your code and give your copyright over to the FSF.


pj

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 10:24 AM EDT
There are a number of reasons why the response to SCO's actions has been restrained, and not all are because there is a lack of people to "step up to the plate." After all, IBM has been keeping its powder fairly dry.

1) In SCO's suit vs IBM, the burden of proof is on SCO. If Mr X counter-sues SCO, the burden of proof is on Mr X. Moreover, if Mr X's suit fails for any reason (including a technicality) SCO will trumpet this as vindication of their claims. Thus a knee-jerk countersuit could be counterproductive.

2) I may be wrong here (please correct me pj if I am) but in the US the winner of a suit does not automatically get awarded costs as well. For a small company , group, or individual, it may therefore be impossible to pursue an action against SCO.

3) In other countries where the loser (typically) pays SCO's actions are still geographically remote and it may be hard to bring a case unless or until SCO actually sue someone in, say, the UK. It depends on the exact legal situation in the country. German law provided for the "put up or shut up" order and it was used effectively by LinuxTag.

4) From a PR point of view, even a counter-suit just becomes another "Linux embroiled in legal shenanigans" story for the fudsters.

In the "what if" scenario of SCO going direct to users, I don't think the movement would have been caught flat-footed. In fact the FSF would probably relish an actual case to line up behind. The OSDL would chip in too. It's precisely because SCO *haven't* sued, haven't done anything concrete beyond making threats and vague allegations, that it's hard to respond. (Apparently there is no direct equivalent in US law to the German court order.)

In the situation as it now stands, I agree with an article in the Register or Inquirer (can't remember which) which said that if SCO doesn't escalate this to an actual end-user suit, everyone will start tuning it out as it ceases to be news. SCO can't just keep saying "everyone's stealing our IP" for 2 or 3 years and not do anything, or they will become a laughing stock, even to PHB's who know little about the details of the case.


Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 11:24 AM EDT
Thanks for the comments.

Another thing that has me wondering is why SCO is only talking about Linux end-users. If Unix is what they are trying to protect, and they really believe AIX users don't have a valid license, wouldn't it be more logical for them to go after AIX users? After all AIX being presumably based on Unix originally, is a lot closer to whatever SCO claims as theirs than Linux, which even according to SCO is largely (everything until and including 2.2) not-Linux, and then more recently contaminated with some Unix stuff.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 11:24 AM EDT
Thanks for the comments.

Another thing that has me wondering is why SCO is only talking about Linux end-users. If Unix is what they are trying to protect, and they really believe AIX users don't have a valid license, wouldn't it be more logical for them to go after AIX users? After all AIX being presumably based on Unix originally, is a lot closer to whatever SCO claims as theirs than Linux, which even according to SCO is largely (everything until and including 2.2) not-Linux, and then more recently contaminated with some Unix stuff.


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 11:26 AM EDT
Sorry another double post. Comments form struggles in my browser. Sorry

"not-Linux" in last post should be "not-Unix"


quatermass

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 12:18 PM EDT
Quatermass, the reason SCO isn't taking action against AIX end-users is that (a)
they would have to establish that they had the right to revoke IBM's irrevocable
licence first; (b) It's very doubtful AIX end-users would be liable in any case
for a product they bought in good faith before IBM's licence was revoked; and
(c) any company that can afford AIX can afford to fight SCO and win. SCO would
much rather go after companies for whom buying a licence is cheaper than a court
battle (a consequence of the way legal costs are handled in the US) style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Dr Stupid

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Sunday, August 03 2003 @ 03:12 PM EDT
PJ and Dr. Stupid, thanks for your patience in explaining what to me was the puzzling "legal silence" of Linux proponents.

Part of the problem was that LinuxTag had gotten such a good result in Germany that I wondered why aren't they trying that here? But the biggest part of the problem was just plain old impatience and lack of understanding of the law. That's why Groklaw is such a huge service.

Thanks again for the brilliant website.


r.a.

[ Reply to This | # ]

radiocomment
Authored by: Anonymous on Monday, August 04 2003 @ 12:10 PM EDT
Latest news is that Red Hat filed a complaint against SCO. It has (according to LWN) two parts: The first is a request for a summary judgement that Red Hat has not violated SCO's copyrights or disclosed any SCO trade secrets. The second is a request for a permanent injunction to stop SCO's anti-Linux campaign.
MathFox

[ Reply to This | # ]

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