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IBM Seeks Declaratory Judgment of Noninfringement
Tuesday, March 30 2004 @ 06:45 PM EST

I will have the actual documents available shortly, but News.com is reporting that IBM is seeking a declaratory judgment. This means IBM believes SCO's case is so weak on this copyright infringement claim that they can toss it overboard:

"The filing in U.S. District Court in Salt Lake City includes a new counterclaim in which IBM seeks a declaratory judgment ruling that "IBM does not infringe, induce the infringement of or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in Unix are invalid and unenforceable."

UPDATE: Here's the proposed Amended Counterclaims from IBM, and here is the unopposed Motion to Amend.

Here are the new counterclaims regarding noninfringement of copyrights:

NINTH COUNTERCLAIM

Declaratory Judgment of Noninfringement of Copyrights

162. IBM repeats and realleges the averments in paragraphs 1 through 161, with the same force and effect as though they were set forth fully herein.

163. SCO purports to hold copyrights relating to UNIX software, including the following copyrights:

  • Registration No.: TXU-510-028 -- Date of Registration: March 25, 1992 -- Title of Work: UNIX Operating System Edition 5 and Instruction Manual
  • Registration No.: TXU-511-236 -- Date of Registration: April 7, 1992 -- Title of Work: UNIX Operating System Edition 6 and Instruction Manual
  • Registration No.: TXU-516-704 -- Date of Registration: May 15, 1992 -- Title of Work: UNIX Operating System Edition 32V and Instruction Manual
  • Registration No.: TXU-516-705 -- Date of Registration: May 15, 1992 -- Title of Work: UNIX Operating System Edition 7 and Instruction Manual
  • Registration No.: TXU-301-868 -- Date of Registration: November 25, 1987 -- Title of Work: Operating System Utility Programs
  • Registration No.: TX5-787-679 -- Date of Registration: June 11, 2003 -- Title of Work: UNIXWARE 7.1.3
  • Registration No.: TX5-750-270 -- Date of Registration: July 7, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 3.0
  • Registration No.: TX5-750-269 -- Date of Registration: July 7, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 3.1
  • Registration No.: TX5-750-271 -- Date of Registration: July 7, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 3.2
  • Registration No.: TX5-776-217 -- Date of Registration: July 16, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 4.0
  • Registration No.: TX5-705-356 -- Date of Registration: June 30, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 4.1ES
  • Registration No.: TX5-762-235 -- Date of Registration: July 3, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 4.2
  • Registration No.: TX5-762-234 -- Date of Registration: July 3, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 4.1
  • Registration No.: TX5-750-268 -- Date of Registration: July 9, 2003 -- Title of Work: UNIX SYSTEM V RELEASE 3.2
164. SCO has sued IBM claiming that IBM has infringed, induced the infringement of, and contributed to the infringement of SCO's purported UNIX copyrights by, among other things, continuing to "reproduce, prepare derivative works of, and distribute" copyrighted UNIX materials through its activities relating to AIX and Dynix.

165. IBM does not believe that its activities relating to AIX and Dynix, including any reproduction, improvement and distribution of AIX and Dynix, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.

166. An actual controversy exists between SCO and IBM as to the noninfringement of SCO's copyrights and the validity of any purported SCO copyrights concerning UNIX.

167. IBM is entitled to a declaratory judgment pursuant to 28 U.S.C. Section 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through the reproduction, improvement, and distribution of AIX and Dynix, and that some or all of SCO's purported copyrights in UNIX are invalid and unenforceable.

TENTH COUNTERCLAIM

Declaratory Judgment of Noninfringement of Copyrights

168. IBM repeats and realleges the averments in paragraphs 1 through 167, with the same force and effect as though they were set forth fully herein.

169. As discussed above, SCO purports to hold copyrights relating to UNIX software.

170. SCO has sued IBM claiming that IBM has infringed, induced the infringement of, and contributed to the infringement of, SCO's purported UNIX copyrights by, among other things, continuing to "reproduce, prepare derivative works of, and distribute" copyrighted UNIX materials through its activities relating to Linux.

171. IBM does not believe that its activities relating to Linux, including any use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.

172. An actual controversy exists between SCO and IBM as to the noninfringement of SCO's copyrights and the validity of any purported SCO copyrights concerning UNIX.

173. IBM is entitled to a declaratory judgment pursuant to 28 U.S.C. Section 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any Linux, and that some or all of SCO's purported copyrights in UNIX are invalid and uneneforceable.

There are other changes too, enlarging their patent infringement claims: In the first patent counterclaim, originally it read like this, in paragraph 129 in the old pleadings:

"129. Upon information and belief, SCO has been and is infringing the 746 Patent within this judicial district and elsewhere by making, using, selling and/or offering to sell products, including UnixWare and Open Server, that practice one or more claims of the 746 Patent and therefore infringe that patent to the extent such infringing acts have occurred or occur during the effective period of that patent. "

Now it reads in paragraph 176 of the new:

"Upon information and belief, SCO has infringed , contributorily infringed, and/or actively induced others to infringe the '746 Patent within this judicial district and elsewhere in violation of 35 U.S.C. Section 271 by, without authority or license from IBM, (a) making, using, selling and/or offering to sell products, including UnixWare and Open Server, that practice one or more claims of the '746 Patent and (b) actively, knowingly and intentionally causing and assisting others to infringe one or more claims of the '746 Patent."

You find the same expansion in 12th patent infringement claim, in paragraph 182, and in the 13th patent infringement claim, paragraph 188, to include not just infringement, but contributory infringement and/or that SCO actively induced others to infringe. They also drop one patent infringement claim, the one regarding the '211 Patent, which was the 10th counterclaim in the prior counterclaims, beginning at paragraph 133, regarding "Method of Navigating Among Program Menus Using a Graphical Menu Tree."

The Prayer for relief section has been adjusted to reflect the new counterclaims, and the test in red is the new text:

"(e) granting IBM declaratory relief, including a declaration that (i) that IBM does not, through its reproduction, improvement, and distribution of AIX and Dynix, infringe, induce the infringement of, or contribute to the infringement of any valid and enforceable copyright owned by SCO; (ii) that IBM does not, through its Linux activities, including its use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of any valid and enforceable copyright owned by SCO; (iii) SCO has violated IBM's rights as outlined above by breaching its contractual obligations to IBM, violating the Lanham Act, engaging in unfair competition, interfering with IBM's prospective economic relations, engaging in unfair and deceptive trade practices, breaching the GPL, infringing IBM copyrights and infringing IBM patents; (ii) SCO has no right to assert, and is estopped from asserting, proprietary rights over programs that SCO distributed under the GPL except as permitted by the GPL; and is not entitled to impose restrictions on the copying, modifying or distributing of programs distributed by it under the GPL except as set out in the GPL; and (iii) any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL."

You can compare with the prior IBM counterclaims. Here's a tutorial on declaratory judgments. And here is the Declaratory Judgment Act, 28 U.S.C. 2201 -02. Remember that this Act is an enabling act. The judge has discretion to entertain a declaratory judgment request or not.

What does it mean? It means that IBM is totally confident that there is no infringing UNIX code in any of their contributions to Linux and that they believe they can prove it now.

UPDATE: I have been reading the document itself now, and there isn't anything new on the GPL front. They asked for a declaratory judgment regarding the GPL in their earlier counterclaims. IBM is challenging SCO's copyrights. That seems to mean that they are defining this as a true copyright fight, not a contract dispute, something SCO has avoided so far. SCO will have to prove they own these copyrights now, no matter what the judge rules on SCO's Motion to Remand in the Novell matter. And they will have to show the code they claim is infringing and prove they hold copyright ownership of that code and that the copyrights they hold relate to the allegedly infringing code. Considering that they have publicly admitted that they don't own the copyrights to the allegedly infringing code, it will be interesting to see how they answer this.

The other interesting piece is this: SCO from the beginning has spoken of their reliance on a jury being able to see their point of view. There have been SCO supporters saying that a Utah jury would be likely to support a home team David, being "bullied" by Goliath IBM. But they have lost that "advantage", if it ever was realistic in the first place, as far as this copyright noninfringement counterclaim is concerned. Judges rule on declaratory judgment requests, if they agree to entertain them, not juries.


  


IBM Seeks Declaratory Judgment of Noninfringement | 352 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Delaware
Authored by: overshoot on Tuesday, March 30 2004 @ 07:03 PM EST
Well, it's not like IBM can wait for the DE Court to wake up 20 years later and
rule on Red Hat v. SCO

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 07:06 PM EST
Methinks the other shoe is dropping...on SCO!

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 07:06 PM EST
I believe I hear the whistling sound of a blockbuster approaching SCO hind... I
mean headquarters.

[ Reply to This | # ]

What does this mean?
Authored by: Anonymous on Tuesday, March 30 2004 @ 07:07 PM EST
Is this the beginning of the end?

-Anthem

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: sef on Tuesday, March 30 2004 @ 07:07 PM EST

Isn't that a fairly common thing to do, though? Asking for a declaratory judgment, I mean.

Not that I disagree with them, of course, especially after SCO said, in court, they couldn't prove any literal copying.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Mike B on Tuesday, March 30 2004 @ 07:10 PM EST
YESSSS!!!

I've been hoping this would happen!

Looks like the Big Blue Cat is tired of playing with the mouse (SCaldera) and
has decided to eat.

I wonder how big a windstorm will happen over Utah caused by all the arm waving
in Lindon?

[ Reply to This | # ]

Place your SCOX bets
Authored by: Mike B on Tuesday, March 30 2004 @ 07:13 PM EST
At this page...

Looks like a bad day for SCOX tomorrow:

http://www.splattertime.com/scox/

(I am wcmi93 on the Yahoo board)

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Jude on Tuesday, March 30 2004 @ 07:13 PM EST
Methinks this would be a really bad time for SCO to try making yet another
excuse for not identifying the alleged infringing code in Linux.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Mike B on Tuesday, March 30 2004 @ 07:24 PM EST
If this is granted, and Novell wins their dismissal motion, doesn't this more or
less collapse the AutoZone lawsuit?


---
Disclaimer: Former IBM employee (I worked as a Q/A tester in their server
division, qualifying prerelease products with IBM supported Network Operating
Systems,

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 07:31 PM EST
Can someone briefly explain the difference between a Declaratory Judgement and a
Summary Judgement?

I read the "turorial" linked above and ...well... let's just say both
bits in my noggin are busy. :-)

Thanks...


...D

[ Reply to This | # ]

Not huge news
Authored by: Anonymous on Tuesday, March 30 2004 @ 07:32 PM EST
It's not really the end of the case. SCO never brought copyright claims against
IBM. The DJ merely is an attempt to get the court to say that there is no
copyright infringement. Has nothing to do with the various contract claims
brought by SCO.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Artega on Tuesday, March 30 2004 @ 07:33 PM EST
"This is exactly what I was wishing IBM would do. It's like the cavalry
just showed up at the top of the hill, trumpets blasting. IBM is seriously
fighting now."

I've been watching for a while now and I think that this was IBM's plan all
along. Let SCO dig its own hole (hence the long agonising wait), then all IBM
has to do is push a little.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: RSC on Tuesday, March 30 2004 @ 07:34 PM EST
OK. What is the likelyhood that Judge Kimball will agree?

And How many of SCOs' other claims will be affected?

Sounds good, but the real fight is about to start when the Counter Suit get into
full swing. With a complete IBM victory in the counter claims, the GPL can only
get stronger. :)

Thanks for the uplifting news on the dull Wednesday morning PJ. I havn't giggled
so much in weeks. ;)

RSC.



---
----
An Australian who IS interested.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: BigDave on Tuesday, March 30 2004 @ 07:35 PM EST
How convenient tjat the same judge also happens to be up to speed on the related
Novell case.

[ Reply to This | # ]

Now if we can get the judge to act-Re: IBM Seeks Declaratory Judgment
Authored by: martimus on Tuesday, March 30 2004 @ 07:37 PM EST

This case has actually seen movement, unlike Redhat's in the Delaware court, but if the judge has to take this under some extended advisement, ooohhh! the suspense is killing me! I would think that at this point the motion for declaratory judgement with some kind of prejudice towards TSCOG would be self-evident. I hope the judge agrees, and rules with dispatch.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: CraigG on Tuesday, March 30 2004 @ 07:39 PM EST
The Nazgul have arrived!

It is utterly amazing, to one who has been involved in the crazy business of programming for far too long, that in less than twenty years, Richard M. Stallman has gone from a voice crying in the wilderness (and come to think of it, he still bears an uncanny resemblance to the popular image of John the Baptist...) to the point where his GPL is being defended to the death by IBM (!) with the strongest stable of IP lawyers in the world.

PJ, once you've posted the document for us all, have a couple of glasses of your favorite beverage toasting RMS and Linus. Between them, they've turned the DP world upside-down.

Craig

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: bsm2003 on Tuesday, March 30 2004 @ 07:41 PM EST
I put $5 on the assumption some how IBM got the Judge in the original unix case
opened. There fore that would prove you don't own what you say you own.

any takers.

[ Reply to This | # ]

This is much narrower than everything
Authored by: ddumitru on Tuesday, March 30 2004 @ 07:42 PM EST
This does not look like IBM asking for a dismissal. It is actually a lot
narrower.

They are only asking for a ruling that IBM did not violate any copyright that
SCO has and/or that SCO really has not valid copyrights anyway.

SCO can still pursue the contract claim, including the, "you own it, but
can't give it to anyone else" theory about derivitive works. They just
cannot talk about copyrights anymore

[ Reply to This | # ]

Declaratory Judgment != Summary Judgment
Authored by: Lev on Tuesday, March 30 2004 @ 07:42 PM EST
Why does it necessarily mean "that they believe they can prove it
now?" Doesn't it just mean that they want to prove it once and for all,
instead of letting SCO pick and choose whom to sue when and for what?

[ Reply to This | # ]

If IBM Now Installs Linux on its HW
Authored by: Anonymous on Tuesday, March 30 2004 @ 07:52 PM EST
I believe that I read recently that IBM is offering to install Linux on the
computers that it sells. If that is correct and the report in News.com is
correct, the declaration that IBM is requesting means that IBM believes that
whatever Linux distribution(s) IBM is proposing to install is free of any claim
by SCO that any of SCO's copyright is being violated.

[ Reply to This | # ]

Checkmate.
Authored by: mrsam on Tuesday, March 30 2004 @ 07:55 PM EST

Paragraph 195 is a direct result of SCOX dropping all of their copyright claims. By re-pleading this case as solely a contract dispute, and by dropping all copyright claims, they've left a big gaping hole for the Nazgul to drive a cruiseship through.

They're going to get this summary judgement. I just don't see a way for them NOT to. SCOX is no longer pleading any copyright claims.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 07:57 PM EST
"It means that IBM is totally confident that there is no infringing UNIX
code in any of their contributions to Linux and that they believe they can prove
it now."

SCO has never claimed that IBM infringed on SCO's copyrights by donating System
V or any other SCO code to the Linux kernel. The only copyright claim SCO has
made is in the last amended complaint where they claimed IBM distributed SCO's
System V code in AIX without a license.

SCO did hint in one of their answers that they believed IBM didn't have the
authority to put copyright notices on their own AIX code, which is totally
ridiculous.

It looks to me like IBM is asking the court to rule there is no SCO-copyrighted
code in Linux, regardless of who SCO believes put it there.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 08:03 PM EST
The question now is, will this force SCO to show all their alleged evidence of
System V infringement soon? If the judge agrees that there's an actual
controversy and all the other requirements for a declaratory judgement, it will
be a huge defeat for SCO if they don't or can't show the evidence.

This is better than waiting for the Red Hat suit anyway.

[ Reply to This | # ]

Same as 154 & 156 in Sep 25th Ammended Counterclaims?
Authored by: Peter Simpson on Tuesday, March 30 2004 @ 08:07 PM EST
I don't get all the fuss. Aren't these the same paragraphs that are in IBM's
September Ammended Conterclaims filing?

[ Reply to This | # ]

Thank You
Authored by: Anonymous on Tuesday, March 30 2004 @ 08:12 PM EST
Thank You IBM

[ Reply to This | # ]

End of IBM case not nigh, but maybe AutoZone benefits soon.
Authored by: Anonymous on Tuesday, March 30 2004 @ 08:12 PM EST

I don't see why people think this somehow makes the case's end imminent. Changing claims and adding new ones doesn't hasten proceedings, it lengthens them. SCO will seek and be granted more time to deal with the changes.

However, I think this may hasten the end of SCO v. AutoZone. As I see it, AutoZone already had two reasons to seek a quick dismissal (without prejudice) of that case:

1. Novell filed affidavits with the Copyright Office that it is the owner of the copyrights. SCO should resolve that dispute first. If SCO is correct that Novell's affidavits were scurrilous, then any damage caused to SCO by the delay in pursuing AutoZone can be collected from Novell.

2. If Linux distribution infringes SCO's copyrights, then Red Hat is a *much* bigger culprit than AutoZone, and it makes no sense for SCO to do nothing about the elephant in the room while pursuing the mice. SCO should first meet Red Hat in Delaware (and should have done so six months ago).

IBM's addition of a claim for declaration of noninfringement gives AutoZone a third reason, similar to number two, but stronger. If the question of whether Linux infringes SCO copyrights is currently being litigated in an active case that already has a trial date set, there's no reason for the Nevada court to duplicate the effort.

Once the AutoZone case is dismissed, SCO will have to admit to investors that, even if all SCO's claims are correct, it will not be able to realize any further monetization of its UNIX rights before the second half of FY2005 (the earliest they could win the IBM suit, which is presumably earlier than they could win any other suit, based on its one-year headstart). If they maintain their cash burn-rate of the most recent quarter, they can last two and a half years, but that will leave uncomfortably little room for delay, increasing legal costs, and increasing operating losses. Even to gullible, technologically and legally ignorant Wall Street types, this will make SCO look like a much longer long-shot, and the management's decision a couple weeks ago to return excess cash to investors through a buy-back program will look incompetent.

[ Reply to This | # ]

Fantastic news!
Authored by: Anonymous on Tuesday, March 30 2004 @ 08:21 PM EST
Death to FUD. Lets watch SCO try to spin this one. Most of us non-lawyers don't
understand quite why this couldn't have happened a year ago, but now that is has
- YESSSS! This is going to be SO GOOD.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 08:24 PM EST
Will the case be put on hold while this request
for a DJ is considered by the court? Will SCO
now be given a good long time to reply to IBM
(I don't see why not)?

This is going to be like watching turtles race
through a pool of molasses :)

[ Reply to This | # ]

Doesn't this kill the derivative theory?
Authored by: Anonymous on Tuesday, March 30 2004 @ 08:26 PM EST
I just pulled the following off the SCOX message board:

"Contract case automatically falls
by: pro_coder (31/M/Toronto, Ontario, Canada)
Long-Term Sentiment: Strong Sell 03/30/04 08:13 pm
Msg: 118243 of 118248

since the derivative works clause depends on the copyright law definition of
derivatives."

Is this right?

[ Reply to This | # ]

Declaratory Judgment requests common
Authored by: Anonymous on Tuesday, March 30 2004 @ 08:34 PM EST
Declaratory judgment requests are fairly common. Most fail on their face, or the
judge feels that there is some question that needs to be heard at bar. While the
request is well written and *I* feel like it should be granted, I rather doubt
that the judge will grant it, and this lame duck is going for trial.

So, sorry to throw a wet blankie over the party. But keep the party favors,
we'll need 'em sooner or later. The courts grind slowly, but they grind. Kinda.

Usual disclaimers apply. I am not an attorney, this does not constitute legal
advice, blah blah blah.

[ Reply to This | # ]

Am I confused?
Authored by: arch_dude on Tuesday, March 30 2004 @ 08:47 PM EST
IANAL, so perhaps I'm confused.

As I understand it, IBM is asking for a Declaratory Judgement. That is, they are
raising a new issue that has never formally been part of SCO V. IBM. This is not
a new defense, and it's not (exactly) a new counterclaim. Rather, it is
essentially the same sort of action that RedHat initiated in Delaware, except
that it is "joined" with SCO V. IBM. The new issue is that SCOG
released code under the GPL and they cannot now add new conditions. From a legal
perspective, this has almost nothing to do with the rest of this case.

In a tactical sense, SCOG should oppose this request for a DJ on the grounds
that it is not related to SCOG's contract dispute with IBM. Of course, this
would absolutely destroy the basis of their FUD campaign for anybody that has
been paying attention, but the FUD campaign is apparently directed at people
with very limited attention spans.

If the judge accepts this DJ request into the current case, (is that how it
works?) then RedHat (or even SCOG) could request that the RedHat v. SCO case be
joine with SCO v. IBM, since the issues are identical.

It this correct?

[ Reply to This | # ]

Appeal?
Authored by: Anonymous on Tuesday, March 30 2004 @ 09:21 PM EST

So, how long after IBM wins this judgement does SCO start up an appeal process to continue this charade?

--
Rick

[ Reply to This | # ]

This COULD include Unixware ...
Authored by: Tomas on Tuesday, March 30 2004 @ 09:22 PM EST
Note in the article way up at the top this line:

"...(3) any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL."

If TSCOG misappropriated ANY GPL'd Linux code into UnixWare or OpenServer, then those products are toast, I mean, are GPL'd. If they knowingly and purposefully put Linux code in their proprietary product they could be in deep, uh, difficulty ...

It was pointed out to me at the #groklaw IRC chat by Br3n last night that SCO has delivered the complete Unixware source code to IBM.

Combine that with TSCOG's public statement(s) that they considered anything under the GPL to be the same as public domain, what are your bets that their work to make their products more Linux-like might have included some wholesale lifting of other people's code straight from Linux and such?

I suspect IBM has all their ducks nicely lined up on this, and I am hoping that they get their judgement.

Take care,

---
Tom
en.gin.eer en-ji-nir n 1: a mechanism for converting caffeine into designs.

[ Reply to This | # ]

IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 09:34 PM EST
So how long before the actual judgement? 1 week? 1 month? If I understand it
correctly a declaratory judgement means that the Court can make a decision based
on the current evidence, even if there hasn't been a trial with attorneys,
jurors etc...

[ Reply to This | # ]

Is this really new
Authored by: Anonymous on Tuesday, March 30 2004 @ 09:49 PM EST
Was this request in IBM's first amended counterclaim?

[ Reply to This | # ]

SCO showed their hand and it was bust
Authored by: KentWA on Tuesday, March 30 2004 @ 09:53 PM EST
Wasn't SCO supposed to provide dicovery documents with specificity by the 26th?
My bet is that they came up with squat and now IBM is calling them on it. This
will certainly gut their entire case and leave them with almost nothing to
pursue, but lots to defend.

[ Reply to This | # ]

IBM's amended counterclaim
Authored by: lightsail on Tuesday, March 30 2004 @ 09:56 PM EST
Gee,have SCO copyright claims dismissed then file a copyright claim against SCO
for distributing IBM's code in the Linux kernel after SCO claimed the GPL is
invalid.

SCO did not have a valid license to distribute Linux (which includes IBM
copyrighted code) without accepting the GPL and continued to distribute it via
FTP, thus copyright infringement.


This would be the most devestating blow possible to the SCO house of cards.

[ Reply to This | # ]

Smokin' ...
Authored by: rand on Tuesday, March 30 2004 @ 10:02 PM EST
From the Motion to Amend Counterclaims:
Undersigned counsel hash conferred with counsel for SCO...
See, we all knew SCO's lawyers were smoking something, now we have proof.

---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

  • Smokin' ... - Authored by: NastyGuns on Tuesday, March 30 2004 @ 10:22 PM EST
    • Smokin' ... - Authored by: Anonymous on Wednesday, March 31 2004 @ 10:08 AM EST
LPI IE only???
Authored by: kedens on Tuesday, March 30 2004 @ 10:14 PM EST
I went to the web site http://www.online-exams.com from a link on the LPI exam
prep page. I was greeted with this message "We're sorry -- this site has
been built to accomodate Microsoft Internet Explorer, as approximately 96% of
our customers use this browser. Please download Internet Explorer from the
Microsoft site to continue."
I just don't understand how a company providing a Linux practice test could say
that. :(
I sent them an e-mail, but I think the more e-mails they receive the better. I
would greatly appreciate anyone's additional emails.
Thanks

[ Reply to This | # ]

Fun NEW Paragraphs - Featuring Kevin and Darl
Authored by: Anonymous on Tuesday, March 30 2004 @ 10:28 PM EST
There are numerous FUN NEW PARAGRAPHS

Some of which feature quotations from Darl and even Kevin McBride. What hoot!

Here are some highlights of some of *many* FUN NEW PARAGRAPHS, partial quotes of
some paragraphs indicated by ellipsis (sorry if any typos)

57. ...In its first complaint, SCO principally alleged that IBM had
misappropriated SCO's trade secrets in UNIX System V....

60. ...SCO further persisted in maintaining for nearly a year the unsound claim
that IBM had misappropriated its trade secrets. Yet when pressed to identify a
single trade secret that IBM had allegedly misappropriated, SCO could not, even
after being ordered to do so by the Court. SCO finally (and properly) abandoned
this claim, upon which SCO's entire lawsuit was initially premised, in its
Seconded Amended Complaint.

72. Although its initial complaints against IBM did not include a claim for
copyright infringement, SCO stated publicly after it filed suit that IBM had
infringed SCO's copyrights, and threatened to sue IBM for copyright infringement
with respect to Linux. For example, at its 2003 SCO Forum conference, SCO
represented to attendees, including press and financial analysts, that Linux is
an unauthorized derivative of UNIX, that IBM had infringed its rights in Linux,
and that SCO was entitled to damages and injunctive relief against IBM.

73. At the December 5, 2003 hearing concerning discovery issues, SCO further
represented to the Court that SCO would be filing a copyright infringement
action against IBM "within the coming few days or no less than a
week."


89. (quote of Novell on derivatives etc., can't be bothered to retype it)


102. Yet despite an Order directing SCO, among other things, to "identify
and state with specificity the source code(s) that SCO is claiming form the
basis of their action action against IBM" by January 12 2004, SCO failed
adequately to do so. In its supplemental responses purportedly submitted in
compliance with the Order, SCO still failed to identify a single line of UNIX
System V code that IBM allegedly misappropriated or misused.

103. In fact, finally realizing that it could no longer maintain the illusion
that IBM had misappropriated its trade secrets, SCO dropped its trade secret
claim altogether. SCO continues, however, to press equally meritless contract
and other claims against IBM, despite being unwilling to identify the UNIX
System V code that IBM allegedly misused in violation of any agreement.

156. (can't be bothered to quote it, but additional IBM copyrights in Linux
registered February 2nd 2004, added to the list of copyrights that SCO is
infringing).

162-173, - not going to quote it all, are new Declaratory Judgement (9th and
10th claims) causes of action on copyrights, or rather non-infringement by IBM

192-197 - are similar to the Declaratory Judgement claim in the First Amended
Counterclaim.

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Bill won't be happy with this news...
Authored by: robobright on Tuesday, March 30 2004 @ 10:33 PM EST
The SCO litigation machine seems to be running out of steam. M$ announced that
Longhorn won't be released till 2007. I bet that Bill needs FOSS to grind to a
halt till his new OS is ready. Or is it possible that Microsoft is waiting for
new FOSS technology for implementation in Longhorn?

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Really Really OT
Authored by: Anonymous on Tuesday, March 30 2004 @ 10:34 PM EST
Was just reading some interesting history on VisiCorp and ran across an article
from March of 1984. Remember Microsoft Windows did not come out until November
1985, even though it was announced in November 1983. Notice how many times the
President of VisiCorp mentions windows and windowing. Visi-On was a commercial
window environment in 1983 with an application manager, word processor,
graphing, and spreadsheet. I keep reading posts saying that windows means the
X-windows system, apparently they did not think so in 1984 when this interview
was conducted. Seems the term windows is generic on its own.

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Timing of Declaratory Judgment
Authored by: WayneStPaul on Tuesday, March 30 2004 @ 10:44 PM EST
Having read the above discussion on Declaratory Judgment,
I think the judgement is not made until the court case has been completed,
either by the Judge or Jury.

A summery judgement would be rulled upon before the end of the process, but the
declaritory judgement is not.

I knbow I am not a lawyer, but am I confused?

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IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 10:47 PM EST
Doesn't Caldera(new SCO) have contributions that it's employees made to the
Linux Kernel?

With the blessing of their employer?

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IBM Seeks Declaratory Judgment
Authored by: fxbushman on Tuesday, March 30 2004 @ 10:49 PM EST
There has been a certain amount of irrational exhuberance in
the reactions here to IBM's request for a declaratory
judgement. The game is not over. I see this request as a
reaction to SCOG's bifurcation request, which clearly defines
SCOG's complaint in terms of contract violation, not
copyrights. It has been difficult all along to guess exactly
what SCOG was complaining about; they have given new meaning
to the word "slippery". IBM is saying "OK, since it is a
contract issue (i.e., the business of our not being allowed
to GPL derivative work) let's definitively take copyright off the table.

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IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 11:04 PM EST
Do you get the feeling IBM is as tired of this as we are?

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IBM Seeks Declaratory Judgment
Authored by: Anonymous on Tuesday, March 30 2004 @ 11:15 PM EST
I'm only at 107 so far, but IBM seems to be covering nearly every grievance they and the open source community has ever had against SCO, and they are doing it in clear, concise, and very non-diplomatic terms :-). It's great to finally have it put out in front of the judge. I don't know whether the judge will accept every point, but I sure hope that the judge rules on at least some of the more ridiculous SCO claims (which is all of them, really, but...) to significantly narrow the case. Even a partial ruling ought to put a stop to SCO's illegal self-enrichment schemes.

We all knew this was coming.

-Matt

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SCO infringing on the GPL?
Authored by: dentonj on Tuesday, March 30 2004 @ 11:19 PM EST
34. The viability of SCO' s product offerings has depended in large measure upon the efforts of the open-source community in enhancing products and making them compatible for use across multiple software and hardware platforms. Indeed, SCO incorporated certain code licensed pursuant to the GPL into its proprietary UNIX products. SCO has also relied on independent developers in the open-source community, such as Linus Torvalds, in order to release upgrades of SCO' s Linux-based products.
Is IBM trying to say that during the course of discovery that they found SCO is infringing on the GPL?

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Eternal cliffhanger...
Authored by: Anonymous on Tuesday, March 30 2004 @ 11:24 PM EST
How much you wanna bet that when this collapses and SCO goes under they will
find some way to leave this hanging.

What I mean is: they will find some way to leave the IP claims in an
"unresolved" state so that Microsoft's salespeople can keep saying
"Linux has unresolved IP issues" for ever and ever.

How much you wanna bet?

Of course, I'm sure people would just forget about it after a while. But,
another possibility is that they'd let it sit for a while and then it would come
back like the monster in the horror movie for one last scare. Who knows?

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Novell -- this ends the whole case
Authored by: Anonymous on Wednesday, March 31 2004 @ 12:23 AM EST
The ammended claims are just amazing. Check out paragraph 83+ IBM is bringing
up how Novell sent SCO a notice forbidding it from suspending IBM's AIX license.
Ditto para 87 for the Sequent license.

Well, that pretty well blows away SCO's claims against IBM on that issue. I
guess Kimball is going to be reading the APA.

It gets better. In 88+ IBM deals with the derivative code issue. It quotes
Novell to the effect that SCO's derivative code arguments are wrong.

Boy, this just destroys the rest of SCO's case. Game over.

Oh, and in 96, they bring up how Novell disputes that SCO owns the Unix
copyrights. It just keeps getting better.

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More from the Ammended Counter Claims
Authored by: Anonymous on Wednesday, March 31 2004 @ 12:28 AM EST
In 106, IBM brings up SCO boosting their stock price and so enjoying unjust
enrichment.

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Fear Uncertainity and Doubt
Authored by: Anonymous on Wednesday, March 31 2004 @ 12:42 AM EST
Something very interesting is beginning to emerge from between the lines. IBM
uses the term "fear uncertainity and doubt" twice in the proposed
Amended Counterclaims. This is a term widely used specifically to describe
Microsoft's marketplace tactics.

As evidence continues to emerge regarding the financial ties between Microsoft
and SCO, one has to imagine that IBM would be trying as hard as possible to find
enough evidence to add Microsoft as a defendant in the countersuit, based on the
theory that SCO's activities are being fully orchestrated by Microsoft. SCO
will be bankrupt at the conclusion of these proceedings, but Microsoft has
plenty of cash on hand to pay for all of the damage SCO is doing to the rest of
the computer industry.

This would be a worst-case scenario for Microsoft, and could possibly tank the
company. SCO has been completely reckless with their conduct. SCO sent out
baseless threatening letters to 1500 of the largest corporations in the world.
They have interfered with contractual relationships between practically every
company in the Unix-based computer industry and their customers. It's one thing
for the rest of the industry to have the technical right to sue a bankrupt SCO
when this is all finished. It would be quite another for the rest of the
computer industry to have the right to sue a cash-plump Microsoft for everything
SCO has done!

Perhaps that turn of phrase was a little shot across Microsoft's bow. To
perhaps make Microsoft a little bit nervous about continuing to fund SCO's legal
adventurism.

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Watch SCO stock jump...
Authored by: technoCon on Wednesday, March 31 2004 @ 12:48 AM EST
I found Johnny Carson's Karnak the Magnificent hat and put it on. This is what I
saw:

<karnak hat>
Judge notes that SCO's case dangles from the thinnest of legal threads and
whittles it down to a fairly narrow question of facts. (e.g. SCO stipulates that
they are indeed low-down polecats, but IBM insists they are dirty, low-down
polecats.)

These facts remain in dispute between SCO and IBM.

Judge rightly asserts that a jury shall be responsibility for that finding of
fact and denies IBM's motion.

SCO runs to the microphone and screams like a post-melt-down Howard Dean that
they have won the case (almost).

SCO stock goes up.

We all scratch our heads and mutter.
</karnak hat>

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OT: SCO sleazy tactics in Germany.
Authored by: mobrien_12 on Wednesday, March 31 2004 @ 01:31 AM EST

Originally saw this on Slashdot.

ComputerWeekly Article

Of interest: SCO can't spread unsubstantiated copyright claims in Germany, So they hire an independent German PR company to do it for them.

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IBM Seeks Declaratory Judgment of Noninfringement
Authored by: Kai on Wednesday, March 31 2004 @ 03:09 AM EST
I'm not sure if anyone's seen this yet, and right now I don't have time to
search this page to see if it's already been linked, but this might be
interesting:

IBM seeks knockout blow in SCO case
http://www.infoworld.com/article/04/03/30/HNscoknockout_1.html

---
Another (Western) Australian who is interested.

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miSCOsoft
Authored by: Anonymous on Wednesday, March 31 2004 @ 08:52 AM EST
In the end isn't this just an attempt by miSCOsoft to put the brakes on the
right to freely share ideas and information ...

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IBM Seeks Declaratory Judgment of Noninfringement
Authored by: Anonymous on Wednesday, March 31 2004 @ 09:40 AM EST
Would a DJ give IBM a monopoly of linux distributions that have no need for
idemnification? Furthermore with the GPL code in Unixware and TSCOG's violation
of the GPL could TSCOG customer's be left without the right to use TSCOG's
products, could this mean that IBM will be able to say to TSCOG "All your
customers are belong to us!"?

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My lawyer friends tell me...
Authored by: Night Flyer on Thursday, April 01 2004 @ 12:03 AM EST
My lawyer friends tell me that, in court, good lawyers strip away all the
superfluous information and rhetoric and find the essential argument that is in
dispute.

Then they deal with the essential argument by arguing which laws and precedent
cases are appropriate and how the court should apply them. Then they await the
judges (and/or juries) opinion.

I believe that by asking for a Declaratory Judgement, IBM does not really expect
that the case will end... Rather IBM sees that many parts of the case have
clear laws and precedents which allows these issues to be resolved, allowing the
court to pursue discussions on the few issues still in contention.

Also, maybe IBM may get lucky and some of the issues may be resolved... For
instance, I'm interested in the judge making a clear statement on the definition
of "derivative work" and how this will be used to evaluate the
contract between SCO and IBM.

I am waiting for the judges statement on how the AT&T $ECHO newsletter will
be used and interpreted in view of the fact that so many years have passed,
there have been many changes in SysV R4, and that there have been additional
contracts issued over the past 10-15 years.

I'm interested in the outcome of SCO vs Novell and the impact on SCO's various
suits.

-----------------------

My Clan Motto: Veritas Vincit: Truth conquers.

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