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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Thursday, April 29 2004 @ 11:59 AM EDT

GPL SCO appears to have given up its claim that the GPL is unconstitutional!

Here is SCO's Answer to IBM's Second Amended Counterclaims as text, and you will see that SCO has dropped that affirmative defense in this newly filed amended pleading.

Oh, and it doesn't violate the export laws or copyright law or antitrust law, either. SCO made a mistake it seems, and now, like Gilda Radner's classic Emily Litella skit on the old Saturday Night Live, they say, "Never mind." Maybe BayStar talked some sense into them.

Here is a list of all the defenses it has dropped, according to my reckoning, which you can verify for yourself by comparing it with SCO's last Amended Answer to IBM's previous Amended Counterclaims. IBM's Second Amended Counterclaims are here, which is the document this filing is responding to. Maybe someone will feel like doing a nice color coded chart showing all the differences? Here is what they have dropped:

DROPPED: "The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based thereon, or related thereto, are barred."

DROPPED: "IBM lacks standing to assert these claims."

DROPPED: "IBM's purported copyright registrations are invalid and/or IBM has violated copyright laws in respect to its claims alleged and the claims based on, or related to, copyrights are barred."

DROPPED: "IBM is not, or may not be, the owner of the '746, '211, '209, or '785 Patents at issue."

DROPPED: "IBM has failed to join one or more parties needed for just adjudication of the counterclaims, including but not limited to the Free Software Foundation and contributors to the Linux 2.4 and 2.5 kernels."

So the silliest of the silly are gone. They were good for a laugh, but now it's time to get real -- after all, in court you have to actually prove what you claim at some point -- so that nonsense has gone bye-bye.

Here's another interesting change, first the IBM statement, followed by SCO's old version answer and then the new (note the numbering is off by one, because of additions to IBM's Second Amended Counterclaims):

IBM New 30: "SCO was founded as Caldera, Inc. in 1994, approximately 25 years after the beginning of the development of Unix and three years after Linus Torvalds began the development of Linux, to develop Linux-based business solutions. In 1998, Caldera, Inc. sold its assets relating to its business of developing and marketing Linux to Caldera Systems, Inc., a newly formed corporation."

SCO Old 29: "Admits that it was originally founded as Caldera, Inc., admits that in 1998 Caldera, Inc. sold certain of its assets to Caldera Systems, Inc., but denies the remaining allegations in ¶29 not specifically admitted herein."

SCO New 30: "Admits that there was an entity known as Caldera, Inc. in 1994, admits that in 1998 Caldera, Inc. sold certain of its assets to Caldera Systems, Inc., but denies the remaining allegations in ¶30 not specifically admitted herein."

"There was an entity known as Caldera, Inc. in 1994"? What might that mean? Let's trace the history and see. Here is a 1998 press release giving a bit of the history of Caldera, Inc.:

"Caldera, Inc., the parent company of Caldera Systems, Inc. and Caldera Thin Clients, Inc., was founded by Bryan Sparks in October 1994 as a start-up venture funded by Ray Noorda, former CEO of Novell®, Inc."

So, in 1994, it was a startup, which was privately held. (This article says it was still privately held in 1996.) And here is a press release from 1999 that fine tunes the story:

"Caldera, Inc. was founded by Bryan Sparks in the fall of 1994, and was incorporated in January of 1995. Caldera received initial funding from The Canopy Group, the family trust of Raymond J. Noorda, former Novell, Inc. Chairman and CEO."

The most recent SEC S3 filing for the SCO Group tells it like this:

"The SCO Group, Inc. was originally incorporated as Caldera Systems, Inc. (Caldera Systems'), a Utah corporation, on August 21, 1998, and reincorporated as a Delaware corporation on March 6, 2000. In March 2000, Caldera Systems completed an initial public offering of its common stock.

"On May 7, 2001, Caldera International, Inc. ('Caldera') was formed as a holding company to own Caldera Systems and to acquire substantially all of the assets, liabilities and operations of the server and professional services groups of Tarantella, Inc. ('Tarantella'), formerly The Santa Cruz Operation, Inc., pursuant to an Agreement and Plan of Reorganization (the 'Reorganization Agreement'), dated as of August 1, 2000, as amended. Under the Reorganization Agreement, Caldera acquired the tangible and intangible assets used in the server and professional services groups, including all of the capital stock of certain Tarantella subsidiaries. In connection with the formation of Caldera, Caldera Systems became a wholly-owned subsidiary of Caldera. All shares of Caldera Systems' common stock, as well as options to purchase shares of Caldera Systems' common stock, were converted into the same number of shares of common stock of Caldera and options to purchase shares of common stock of Caldera."

And in 2000, SCO (oldSCO) and Caldera Systems, Inc. put out a joint press release that included this story:

"Caldera Systems, Inc., (Nasdaq: CALD), a 'Linux for Business' leader and The Santa Cruz Operation, Inc., (SCO) (Nasdaq: SCOC), the world's leading provider of UNIX operating systems, today announced that Caldera Systems has entered into an agreement to acquire the SCO Server Software Division and the Professional Services Division. The Professional Services Division will operate as a separate business unit of Caldera, to provide services to meet the Internet and eBusiness infrastructure needs of customers. . . .Caldera Systems, Inc. will form a new holding company, Caldera, Inc., to acquire assets from the SCO Server Software Division plus the SCO Professional Services Division, including a highly skilled workforce, products and channel resources. Caldera, Inc. will have exclusive distribution rights for the SCO OpenServer product line, and is fully committed to servicing and supporting the SCO OpenServer customer base.Caldera, Inc. will be headquartered in Orem, Utah, with locations worldwide. The boards of directors of both companies have unanimously approved the acquisition which is subject to the approval of Caldera Systems, Inc. and The Santa Cruz Operation, Inc. stockholders, and regulatory agencies, as well as meeting certain other closing conditions. The companies anticipate closing the transaction during October, 2000.

"Following the completion of the acquisition, Ransom Love, current president and CEO of Caldera Systems, Inc. will become CEO of Caldera, Inc., and David McCrabb, current president of the SCO Server Software Division, will become president and COO of Caldera, Inc. Jim Wilt, current president of the SCO Professional Services Division will become president of the newly formed Caldera Services Division. Doug Michels, president and CEO of The Santa Cruz Operation, Inc., will join the Caldera, Inc. board of directors. SCO will also appoint a second representative to the board of Caldera, Inc.. . . Caldera, Inc. was co-founded in 1994 by Ransom Love. Caldera Systems, Inc. was founded by Ransom Love in 1998 to develop Linux-based business solutions."

As you can see, the name Caldera, Inc. has a bit of mileage on it. I believe SCO's strange "There was an entity known as Caldera, Inc." has reference to this name changing strategy, which does indeed make it hard to know exactly who is who and which Caldera, Inc. you are referring to.

Why quibble? This is the happy day that SCO acknowledges by its actions -- although it failed to put out a press release -- that the GPL isn't unconstitutional after all. A little smear here, a little smear there, and then, poof. All gone. "Sorry for having questioned your legality and trying to make people think you are subversive and unconstitutional and all. Our mistake." Of course, they didn't actually apologize. I'm just horsing around and pretending to apologize in their voice. You wouldn't want to hold your breath waiting for them to say they are sorry.

They are probably too embarrassed to do anything but quietly drop it and then skulk away. They do still claim the GPL is void or voidable, that it is unenforceable, and that the FSF selectively enforces it, so not all the silliness is gone. But they have tucked tail and begun to back down. They are getting their PhD in the GPL, and in time it will gradually dawn on them that they are wrong about all the rest too. Then they will completely throw in the towel, with a snarl, I have no doubt, and then we will have a party, an international celebration, which I will attend in a red dress.

Humorously, SCO says the following allegations by IBM are "wholly irrelevant":

58. SCO submitted an Amended Complaint on July 22, 2003 and a Second Amended Complaint on February 27, 2004.

59. In its succession of complaints, SCO has asserted legal theories that are meritless , such as that SCO has ownership rights with respect to all of the code in AIX and Dynix . SCO has also sought relief to which it is plainly not entitled, such as a permanent injunction terminating IBM's ability to possess and use the software products it licensed from AT&T Technologies, Inc., notwithstanding the fact that those rights are expressly "irrevocable" and "perpetual".

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 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 Second Amended Complaint.

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."

It says 100 to 105 of IBM's Second Amended Counterclaims are "legally irrelevant", and here you are, 100-105:

100. In light of SCO' s continuing refusal to provide detail regarding its claims IBM moved on October 1, 2003 to compel complete responses to IBM' s First Set of Interrogatories, and on November 6, 2003, to compel complete responses to IBM' s Second Set of Interrogatories. Even in the face of these motions, however, SCO continued to attempt to obfuscate its claims and hide its evidence.

101. IBM' s motions to compel were granted at a hearing on December 5, 2003.

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 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 secrets 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.

104. As a result of SCO's ongoing failure to be forthcoming regarding its claims against IBM, SCO was ordered on March 4, 2004 yet again to provide the specifics of its claims against IBM, this time by April 19, 2004.

105. In the meantime, by failing to disclose the particulars of its claims for more than a year, SCO has been able to cultivate and maintain in the marketplace fear uncertainty and doubt about its rights and the rights of others.

Thanks go to several volunteers, including Samuel Blomqvist, Alex Labram, inode-buddha, and Cecil Whitley for tackling this huge task. Alex says it was good typing practice. Some OCR'd, some typed, some coded. Thank you so much, everyone.

******************************************

Brent O. Hatch (5715)
Mark R. Clements (7172)
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER L.L.P.
[address, phone, fax]

Attorneys for Plaintiff The SCO Group, INC.

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

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

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

THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,

Defendant.

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

SCO'S ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS

Case No. 03-CV-0294

Hon: Dale A. Kimball

Magistrate Judge Brooke C. Wells

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

Plaintiff and counterclaim-defendant The SCO Group, Inc. ("SCO"), by and through counsel, answers the second amended counterclaims of defendant and counterclaim-plaintiff International Business Machines Corporation ("IBM") and further admits, denies and alleges as follows:

ANSWER

1. Admits that the UNIX operating system was originally developed by Bell Laboratories, then a development arm of AT&T Corp., but denies the remaining allegations of ¶1.

2. Admits that it respects the intellectual property rights of others, but denies the remaining allegations of ¶2.

3. Admits the allegations of ¶3.

4. Admits the court has jurisdiction over the claims, but denies that IBM has any valid claims and denies the remaining allegations of ¶4 not specifically admitted herein.

5. Admits the allegations of ¶5.

6. Admits the allegations of ¶6.

7. Admits the allegations of ¶7.

8. Admits that the earliest UNIX operating system was built by software engineers at Bell Laboratories, the research division of AT&T, but denies the remaining allegations of ¶8 not admitted herein.

9. Admits the allegations of ¶9.

10. Admits that AT&T sold UNIX assets, through its subsidiary USL, to Novell in 1993, admits that Novell sold UNIX assets to The Santa Cruz Operation, Inc., now known as Tarantella, Inc. ("Tarantella") in 1995, but denies that Novell sold only part of its UNIX assets and further denies the remaining allegations contained in ¶10 not specifically admitted herein.

11. Denies the allegations of ¶11.

12. Admits that in 1985 IBM acquired certain UNIX rights pursuant to license with AT&T, and admits that IBM and AT&T entered agreements as referenced in ¶12, but denies that IBM's UNIX-related rights are characterized as "broad," denies that IBM has any remaining rights under the referenced agreements and denies the remaining allegations of ¶12 not specifically admitted herein.

13. Admits that IBM developed a version of UNIX pursuant to license originally with AT&T and admits that IBM's version of UNIX is called AIX but denies that IBM properly exercised its rights and is without information sufficient to admit or deny the remaining allegations of ¶13, and therefore denies the same.

14. Admits this Amendment X was entered into in 1996 by and among IBM, Santa Cruz Operations and Novell, but denies the remaining allegations of ¶14.

15. Admits that Sequent, like IBM, acquired certain UNIX rights pursuant to its own license agreements with AT&T, admits that Sequent and AT&T entered into agreements with AT&T, admits that IBM acquired the stock of Sequent, but denies that Sequent's UNIX-related rights are characterized as "broad," denies that Sequent has any remaining rights under the referenced agreements and denies the remaining allegations of ¶15 not specifically admitted herein.

16. Admits that Sequent developed a version of UNIX pursuant to license originally with AT&T and admits that Sequent's version of UNIX is called Dynix but denies that IBM properly exercised its rights and is without information sufficient to admit or deny the remaining allegations of ¶16, and therefore denies the same.

17. Denies the allegations of ¶17 and alleges that Linux is, in actuality, an unauthorized version of UNIX that is structured, assembled and designed to be technologically indistinguishable from UNIX, and practically is distinguishable only in that Linux is a "free" version of UNIX designed to destroy proprietary operating system software.

18. Admits that Linus Torvalds assembled the original Linux kernel but is without information sufficient to admit or deny the remaining allegations of ¶18 not specifically admitted herein, and therefore denies the same.

19. Is without information sufficient to admit or deny the allegations of ¶19, and therefore denies the same.

20. Admits that many developers have contributed software code to the Linux kernel, admits that IBM has contributed code to the Linux kernel, admits that the first iteration of Version 2.4 of the Linux kernel was released in 2001, but is without information sufficient to admit or deny the remaining allegations of ¶20 not specifically admitted herein, and therefore denies the same.

21. Admits that Red Hat has distributed one or more versions of Linux, which may include one or more versions of the Linux kernel, and admits that other distributors may have done so as well, including SCO, but denies the remaining allegations of ¶21 not specifically admitted herein.

22. Admits the allegations of ¶22, but alleges that Linux software contains other additional characteristics not identified in ¶22, and further alleges that ¶22 does not provide a complete definition of Linux.

23. Admits that software license agreements typically reflect legal limitations restricting the use and reproduction of works, admits that Linux is available for free download, admits that the license presently governing Linux (the General Public License) generally is oriented to keep source code publicly available, but denies the remaining allegations of ¶23 not specifically admitted herein.

24. Admits the allegations of ¶24, but denies enforcability or applicability of the GPL.

25. Is without information sufficient to admit or deny the allegations of ¶25, and therefore denies the same.

26. Admits that the GPL purports to guarantee the right to freely share and change free software, but denies that the GPL applies to any program whose authors commit to using it, denies enforceability or applicability of the GPL, and is without information sufficient to admit or deny the remaining allegations of ¶26 not specifically admitted herein, and therefore denies the same.

27. Admits that the GPL allows a licensee to distribute copies of free software, receive source code and change and use the software in new free programs but is without information sufficient to admit or deny the remaining allegations of ¶ 27 not specifically admitted herein and therefore denies the same.

28. Admits that Linux is licensed under the GPL and admits that Linux contains some notices placed by some copyright holders, but denies enforceability or applicability of the GPL and denies the remaining allegations of ¶28 not specifically admitted herein.

29. Denies the allegations of ¶29.

30. Admits that there was an entity known as Caldera, Inc. in 1994, admits that in 1998 Caldera, Inc. sold certain of its assets to Caldera Systems, Inc., but denies the remaining allegations in ¶30 not specifically admitted herein.

31. Admits that it has distributed certain versions of the Linux operating system but denies the remaining allegations of ¶31.

32. Admits that it previously developed and marketed software based on certain versions of the Linux operating system, and admits that it has provided certain Linux-related services, but denies the remaining allegations of ¶32.

33. Admits that it previously distributed or re-distributed SCO Linux server, SCO OpenLinux Server, SCO OpenLinux Workstation and SCO Volution Manager, and admits that SCO has suspended its Linux distribution, but denies the remaining allegations contained in ¶33.

34. Denies the allegations of ¶34.

35. Admits that it previously distributed certain versions of Linux, admits that it previously provided Linux-related educational programs, admits that it joined UnitedLinux, but denies the remaining allegations of ¶35 not specifically admitted herein.

36. Admits the allegations of ¶36.

37. Admits that it previously supported in some ways the open-source community prior to discovery of violation of its intellectual property rights by IBM and others, but denies the existence of any "scheme," and denies the allegations of ¶37 not specifically admitted herein.

38. Admits that some of its products were previously made available for licensing under the GPL, but denies the remaining allegations of ¶38 not specifically admitted herein.

39. Denies the allegations of ¶39.

40. Admits that it previously engaged in certain Linux-related activities, but denies the remaining allegations of ¶40 not specifically admitted herein.

41. Admits that it has contributed to certain open-source development projects, but denies the remaining allegations of ¶41 not specifically admitted herein.

42. Denies the allegations of ¶42.

43. Admits the allegations of ¶43, but alleges that SCO was unaware of IBM's Linux-related investment prior to its formal announcements thereof, and further alleges that IBM secretly and improperly failed to disclose to SCO such Linux-related investments and its intentions with respect to Linux before and during Project Monterey.

44. Admits the allegations of ¶44.

45. Admits that IBM has contributed source code to Linux projects under the GPL, but denies that such contributions were proper or legal, and denies the remaining allegations of ¶45 not specifically admitted herein.

46. Is without information sufficient to admit or deny the allegations of ¶46 and therefore denies the same.

47. Is without information sufficient to admit or deny the allegations of ¶47 and therefore denies the same.

48. Is without information sufficient to admit or deny the allegations of ¶48 and therefore denies the same.

49. Admits that it completed a public offering, admits that SCO has never generated a profit related to Linux, admits that SCO has not generated profit until recently, but denies the remaining allegations of ¶49 not specifically admitted herein and alleges that IBM's Linux-related revenue is from its wrongful conduct in violation of SCO's legal and contractual rights set forth in the Second Amended Complaint.

50. Admits that Caldera Systems, Inc. was merged into Caldera International, Inc., admits that SCO acquired rights to the UNIX operating system originally developed by Bell Laboratories, but denies the remaining allegations of ¶50 not specifically admitted herein.

51. Denies the allegations of ¶51.

52. Denies the allegations of ¶52.

53. Denies the allegations of ¶53.

54. Denies the allegations of ¶54.

55. Denies the allegations of ¶55.

56. Denies the allegations of ¶56.

57. Admits it alleges that IBM has, among other actions, breached contractual obligations to SCO by, among other things, incorporating and inducing others to incorporate source code in the Linux kernel in violation of SCO's contractual and intellectual property rights, but denies the remaining allegations of ¶57 not specifically admitted herein.

58. Although this allegation is wholly irrelevant, admits the allegations of ¶58.

59. Although this allegation is wholly irrelevant, denies the allegations of ¶59.

60. Although this allegation is wholly irrelevant, denies the allegations of ¶60.

61. Denies the allegations of ¶61.

62. Admits that it has made certain public statements regarding IBM's rights to use AIX and Dynix, admits that it claims the legal right and authority to revoke, and has effectively revoked, IBM's right to use, license or distribute AIX and that it has so stated in certain statements, admits that it claims the legal right to revoke IBM's use, license or distribution of Dynix and has so stated in certain statements, but denies the remaining allegations of ¶62 not specifically admitted herein.

63. Admits that it has made certain public statements regarding IBM's rights to use AIX and Dynix, admits that it claims the legal right and authority to revoke, and has effectively revoked, IBM's right to use, license or distribute AIX and that it has so stated in certain statements, admits that it claims the legal right to revoke IBM's use, license or distribution of Dynix and has so stated in certain statements, but denies the remaining allegations of ¶63 not specifically admitted herein.

64. Admits that it has made public statements about offering licenses to provide customers a run time binary license to operate Linux, but denies the remaining allegations of ¶64 not specifically admitted herein.

65. Admits SCO has sold licenses and has publicly stated as much, but denies the remaining allegations of ¶65.

66. Admits it claims that IBM has contributed certain Dynix code to Linux in violation of its contractual and legal obligations to SCO and that SCO has so stated, admits it claims that IBM's violation of SCO's rights are giving rise to damages as a result of IBM's improper profit from Linux and improper continued use of AIX, and that SCO has so stated, but denies the remaining allegations of ¶66 not specifically admitted herein.

67. Denies the remaining allegations of ¶67 not specifically admitted herein.

68. Denies the remaining allegations of ¶68 not specifically admitted herein.

69. Admits having sent letters to the 1500 largest companies in the world and notes that the letters are the best evidence of the contents thereof, denies that said letters threatened litigation and denies the remaining allegations of ¶69 not specifically admitted herein.

70. Admits to discussing licensing and notes that the transcript of that conference is the best evidence of what was said, and denies the remaining allegations of ¶70 not specifically admitted herein.

71. Admits to a teleconference on that day, the complete transcript of which is the best evidence of what was actually said and in context, but denies the remaining allegations of ¶71 not specifically admitted herein.

72. Denies the allegations of ¶72.

73. Although wholly irrelevant, admits that the entire transcript of that hearing is the best evidence of what was said, including the comments ascribed to counsel, and denies the remaining allegations of ¶73 not specifically admitted herein.

74. Denies the allegations of ¶74.

75. Admits a press release and letter were sent, which themselves are the best evidence of their contents, and denies the remaining allegations of ¶75 not specifically admitted herein.

76. Admits various comments were made at Harvard Law School, the complete transcript of which is the best evidence what was actually said and in context, but denies the remaining allegations of ¶76 not specifically admitted herein.

77. Admits that SCO has filed a copyright infringement claim and notes that text of the complaint is the best evidence of that claim and denies the remaining allegations of ¶77 not specifically admitted herein.

78. Admits that SCO has filed a copyright infringement claim and notes that text of the complaint is the best evidence of that claim and denies the remaining allegations of ¶78 not specifically admitted herein.

79. Admits that SCO has filed a copyright infringement lawsuit and notes that text of the complaint is the best evidence of that claim and denies the remaining allegations of ¶79 not specifically admitted herein.

80. Admits that SCO has filed a copyright infringement lawsuit and notes that text of the complaint is the best evidence of that claim and denies the remaining allegations of ¶80 not specifically admitted herein.

81. Admits that SCO has filed a copyright infringement lawsuit and notes that text of the complaint is the best evidence of that claim and denies the remaining allegations of ¶81 not specifically admitted herein.

82. Denies the allegations of ¶82.

83. Admits the existence of the letter of June 9, 2003, but denies any legal or factual basis for the letter and denies the remaining allegations of ¶83 not specifically admitted herein.

84. Admits the existence of the letter of June 12, 2003 but denies any right in Novell to waive or revoke SCO's rights and denies any legal or factual basis for the letter and denies the remaining allegations of ¶84 not specifically admitted to herein.

85. Denies the allegations of ¶85.

86. Admits it has revoked IBM's right to further use, license or distribute AIX, pursuant to the express terms of the Software Agreement and related documents, and that it has so stated, but denies the remaining allegations of ¶86 not specifically admitted herein.

87. Denies the allegations of ¶87.

88. Admits the existence of the letter of October 7, 2003, but denies any legal or factual basis for it and denies the remaining allegations of ¶88 not specifically admitted herein.

89. Admits the existence of the letter of October 7, 2003, but denies any legal or factual basis for it and denies the remaining allegations of ¶89 not specifically admitted herein.

90. Admits the existence of the letter but denies Novell's right to waive IBM's breaches of agreements and denies the remaining allegations of ¶90 not specifically admitted herein.

91. Admits the existence of the letter of October 10, 2003 but denies any legal or factual basis for the letter and denies the remaining allegations of ¶91 not specifically admitted herein.

92. Admits the existence of the letter of February 6, 2004, but denies any legal or factual basis for the letter and denies the remaining allegations of ¶92 not specifically admitted herein.

93. Admits the existence of the letter, but denies any legal or factual basis for the letter and denies the remaining allegations of ¶93 not specifically admitted herein.

94. Admits to the existence of the letter of February 11, 2004 but denies any legal or factual basis for the letter and denies the remaining allegations of ¶94 not specifically admitted herein.

95. Denies the allegations of ¶95.

96. Admits Novell has falsely publicly claimed that it owns copyrights for UNIX but denies those false claims and the remaining allegations of ¶96 not specifically admitted herein.

97. Admits that IBM sent letters dated April 2, 2003 and May 5, 2003 but denies the remaining allegations of ¶97 not specifically admitted herein.

98. Denies the allegations of ¶98.

99. Denies the allegations of ¶99.

100. Although legally irrelevant, SCO admits IBM filed motions to compel but denies the remaining allegations of ¶100 not specifically admitted herein.

101. Although legally irrelevant, admits that IBM motions to compel were granted in part.

102. Although legally irrelevant, admits the contents of the Court Order includes some of the excerpted language but denies all remaining allegations of ¶102.

103. Although legally irrelevant, denies the allegations of ¶103.

104. Although legally irrelevant, denies the allegations of ¶104.

105. Although legally irrelevant, denies the allegations of ¶105.

106. Denies the allegation of ¶106.

107. Denies the allegation of ¶107.

108. Admits that IBM has made contributions of source code to Linux 2.4 and 2.5 kernels under the GPL, but denies the applicability or enforceability of the GPL and denies the remaining allegations of ¶108 not specifically admitted herein.

109. Admits that IBM and others have breached SCO's intellectual property rights, but denies the remaining allegations of ¶109.

110. Denies the allegations of ¶110 and denies the enforceability or applicability of the GPL.

111. Denies the allegations of ¶111.

112. Admits that SCO licenses and distributes UnixWare, "OpenServer," "SCO Manager," and "Reliant HA," but denies infringement and denies the remaining allegations of ¶112.

113. Repeats and realleges ¶¶1 through 112, above.

114. Admits that IBM continues to be obligated to SCO by confidentiality requirements and other provisions in the AT&T Agreements and Amendment X that, by their terms, specifically continue beyond termination, but alleges that IBM's right to use, license and distribute under the said agreements has been lawfully and properly terminated, and therefore denies that IBM has any right under the said agreements and denies the remaining allegations of ¶114 not specifically admitted herein.

115. Denies the allegations of ¶115.

116. Denies the allegations of ¶116.

117. Denies the allegations of ¶117.

118. Denies the allegations of ¶118.

119. Repeats and realleges ¶¶1-118, above.

120. Admits that IBM sells Linux-related services in interstate commerce, but denies that IBM has or had authority to sell, license or distribute AIX in interstate commerce from and after June 16, 2003, and denies that IBM has or had authority to license, sell or distribute Dynix in interstate commerce from and after September 2, 2003, alleges that IBM's rights in AIX and Dynix have been lawfully and properly terminated, and denies the remaining the allegations of ¶120 not specifically admitted herein.

121. Denies the allegations of ¶121.

122. Denies the allegations of ¶122.

123. Denies the allegations of ¶123.

124. Denies the allegations of ¶124.

125. Repeats and realleges ¶¶1-124, above.

126. Admits that IBM has expended a substantial investment of time, effort and money in development of AIX pursuant to the terms of its license with SCO and SCO's predecessors in interest, admits that AIX has become one of the world's leading UNIX operating systems, admits that IBM's products and services are sold and used throughout the United States, admits that IBM acquired Sequent and thereby acquired Sequent's interest in Dynix, subject to the terms and conditions of Sequent's agreements with SCO and/or its predecessors, but denies the remaining allegations of ¶126 not specifically admitted herein.

127. Denies the allegations of ¶127.

128. Denies the allegations of ¶128.

129. Denies the allegations of ¶129.

130. Repeats and realleges ¶¶1-129, above.

131. Admits the allegations of ¶131.

132. Admits it is generally aware that IBM has or may have certain prospective business relationships that IBM deems important, but denies the remaining allegations of ¶132 not specifically admitted herein.

133. Denies the allegations of ¶133.

134. Denies the allegations of ¶134.

135. Denies the allegations of ¶135.

136. Repeats and realleges ¶¶1-135, above

137. Denies the allegations of ¶137.

138. Denies the allegations of ¶138.

139. Denies the allegations of ¶139.

140. Denies the allegations of ¶140.

141. Denies the allegations of ¶141.

142. Repeats and realleges ¶¶1-141, above.

143. Admits that IBM has made contributions of source code to Linux under the GPL, but denies the applicability or enforceability of the GPL and denies the remaining allegations of ¶143 not specifically admitted herein.

144. Denies the allegations of ¶144.

145. Denies the allegations of ¶145.

146. Denies the allegations of ¶146.

147. Denies the allegations of ¶147.

148. Repeats and realleges ¶¶1-147, above.

149. Denies the allegations of ¶149.

150. Denies the allegations of ¶150.

151. Denies the allegations of ¶151.

152. Denies the allegations of ¶152.

153. Denies the allegations of ¶153.

154. Repeats and realleges ¶¶1-153, above.

155. Admits that IBM has made contributions of source code to Linux under the GPL, but denies the applicability or enforceability of the GPL, alleges that part of said contributions by IBM violate SCO's contract and intellectual property rights, and denies the remaining allegations of ¶155 not specifically admitted herein.

156. Is without information sufficient to admit or deny the allegations of ¶ 156, and therefore denies the same.

157. Admits that IBM has placed copyright norices on certain of its AIX and Dynix contributions to UNIX, but denies it has the legal authority to do so, denies the applicability or enforceability of the GPL, and denies the remaining allegations of ¶157 not specifically admitted herein.

158. Denies the allegations of ¶158.

159. Denies the allegations of ¶159.

160. Denies the allegations of ¶160.

161. Denies the allegations of ¶161.

162. Repeats and realleges ¶¶1-161, above.

163, Admits SCO has the copyrights listed in ¶ 162.

164. Admits SCO has sued IBM for copyright infringement and notes that the text of that claim is the best evidence of all of the allegations made against IBM.

165. Is without information sufficient to admit or deny the allegations of 165, and therefore denies the same.

166. Denies the allegations of ¶166.

167. Denies the allegations of ¶167.

168. Repeats and realleges ¶¶1-167, above

169. These allegations are the subject of a motion to dismiss or stay and therefore no response is necessary.

170. These allegations are the subject of a motion to dismiss or stay and therefore no response is necessary.

171. These allegations are the subject of a motion to dismiss or stay and therefore no response is necessary.

172. These allegations are the subject of a motion to dismiss or stay and therefore no response is necessary.

173. These allegations are the subject of a motion to dismiss or stay and therefore no response is necessary.

174. Repeats and realleges ¶¶1 through 173, above.

175. Is without information sufficient to admit or deny the allegations of ¶ 175, and therefore denies the same.

176. Denies the allegations of ¶176.

177. Denies the allegations of ¶177.

178. Denies the allegations of ¶178.

179. Denies the allegations of ¶179.

180. Repeats and realleges ¶¶1-179, above.

181. Is without information sufficient to admit or deny the allegations of ¶181, and therefore denies the same.

182. Denies the allegations of ¶182.

183. Denies the allegations of ¶183.

184. Denies the allegations of ¶184.

185. Denies the allegations of ¶185.

186. Repeats and realleges ¶¶1-185, above.

187. Is without information sufficient to admit or deny the allegations of ¶187, and therefore denies the same.

188. Denies the allegations of ¶188.

189. Denies the allegations of ¶189.

190. Denies the allegations of ¶190.

191. Denies the allegations of ¶191.

192. Repeats and realleges ¶¶1-191, above.

193. Denies the allegations of ¶193.

194. Denies the allegations of ¶194.

195. Denies the allegations of ¶195.

196. Denies the allegations of ¶196.

197. Denies the allegations of ¶197.

FIRST AFFIRMATIVE DEFENSE

IBM fails to state a ground upon which relief may be granted.

SECOND AFFIRMATIVE DEFENSE

IBM's claims are barred by the doctrines of waiver, estoppel, acquiescence, and/or laches.

THIRD AFFIRMATIVE DEFENSE

IBM's contractual right to license, distribute or use AIX or Dynix has been properly and validly terminated, and any claim based thereon is barred.

FOURTH AFFIRMATIVE DEFENSE

IBM's claims are barred by license.

FIFTH AFFIRMATIVE DEFENSE

IBM's claims are barred by illegality, collusion, conspiracy and/or lack of clean hands.

SIXTH AFFIRMATIVE DEFENSE

The General Public License ("GPL") is unenforceable, void and/or voidable, and IBM's claims based thereon, or related thereto, are barred.

SEVENTH AFFIRMATIVE DEFENSE

The GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, estopped or otherwise barred as a matter of equity.

EIGHTH AFFIRMATIVE DEFENSE

IBM's claims are barred, in whole or in part, by the First Amendment to the U.S. Constitution, by the doctrine of judicial immunity and by privilege.

NINTH AFFIRMATIVE DEFENSE

IBM's claims are barred or preempted, in whole or in part, by the laws of the United States.

TENTH AFFIRMATIVE DEFENSE

IBM's own conduct, including that of its agents, contractors and partners, and/or conduct of third parties constitute superseding or intervening causes with respect to IBM's claims of damage or injury.

ELEVENTH AFFIRMATIVE DEFENSE

SCO has acted legally and properly at all relevant times and IBM is therefore barred from any relief whatsoever.

TWELTH AFFIRMATIVE DEFENSE

The patents at issue, and particularly the claims of those patents alleged to be infringed, are invalid and of no effect for failure to comply with one or more requirements set forth in Title 35 or the United States Code, including, but not limited to Sections 101, 102, 103, 112, 116 and/or 256.

FOURTEENTH AFFIRMATIVE DEFENSE

On information and belief, IBM's claims under the patents at issue are precluded by the doctrine of prosecution history estoppel based on the admissions and representations made by IBM in proceedings before the United States Patent and Trademark Office during the prosecution of the applications of the patents at issue.

FIFTEENTH AFFIRMATIVE DEFENSE

On information and belief, U.S. Patent 4,814,746 ("the '746 patent") is unenforceable by reason of IBM's inequitable conduct, acts or omissions before the U.S. Patent and Trademark Office ("PTO"). The '746 patent, in the section entitled "Background of the Invention," cites one article directed to LZ78 data compression and indicates that it is representative of the prior art. U.S. Patent No. 4,814,746, column 1, lines 13-27. That statement is material, false and misleading and was known by IBM to be material, false and misleading. In fact, the single article cited in the '746 patent is not representative of the prior art. There are numerous other techniques such as LZ77, described in an article entitled "A Universal Algorithm For Sequential Data Compression," IEEE Transactions on Information Theory, Vol. IT-23, No. 3, May 1877, pp. 337-343. Other types of prior art data compression methods include run length encoding, arithmetic encoding and Huffman encoding. The falsity of IBM's statement is also reflected by the fact that in the period from December 9, 1975 to March 1, 1983, IBM itself obtained the issuance of at least 31 patents directed to data compression.

On September 22, 1988, during prosecution of the continuation patent application which led to issuance of the '746 patent, IBM filed an Information Disclosure Statement ("IDS") with the PTO. That IDS discloses European Patent Office ("EPO") parent publication 129439. The inventor of that patent publication was Terry Welch. The patent publication was published on December 27, 1984. Inexplicably, while IBM mentioned the United States counterpart of the EPO publication, it does not cite that counterpart in the citation of prior art. Thus, the face of the '746 patent does not contain any reference to the U.S. counterpart. That Counterpart was U.S. Patent No. 4,558,302. That patent contains claims which overlap with the '746 patent. The Welch U.S. Patent No. 4,558,302 was filed 19 days after the '746 patent was filed in the PTO. The closeness of these dates implicates 35 U.S.C. § 102(g) and raises a serious question as to who was the first inventor of the claimed subject matter and who is entitled to the patent. The failure to cite the U.S. counterpart, the fact that IBM waited almost three years after the U.S. counterpart issued as a patent to even inform the PTO of the EPO publication, and the additional fact that IBM waited until after the claims of the '746 patent were allowed to file an IDS, were intended to deter the Patent Examiner from comparing the claims of the U.S. counterpart to the allowed claims of the '746 patent. These actions were material to the examination of the '746 patent.

IBM's IDS states that the U.S. counterpart patent "apparently is an improvement on the teaching of [another referee] and offers nothing more that would affect the patentability of the allowed claims in this case.["] These statements were material, false and misleading and were known by IBM to be material, false and misleading. These statements and the fact that IBM cited the EPO publication and not the U.S. patent counterpart had the effects of not only mischaracterizing the disclosure of the Welch patent application, but also of concealing from the PTO the overlap between the claimed subject matter of the '746 patent and the counterpart U.S. patent.

IBM withheld additional prior art from the PTO. In February, 1981, IBM published an article entitled "Message Compression Method." The article wa published as an IBM Technical Disclosure Bulletin, Volume 23, No. 9, pages 4197-98. That publication was material to the patentability of the '746 patent. IBM withheld this prior art with intent to deceive the PTO.

On information and belief, IBM was aware prior to the issuance of the '746 patent, of U.S. Patent No. 4,366,551, issued December 28, 1982, to Klaus E. Holtz. This patent is material to the patentability of the claims of the '746 patent. On information and belief, IBM's intentional failure to disclose this prior art to the PTO was part of IBM's scheme to withhold material prior art.

On information and belief, U.S. Patent 5,805,785 ("the '785 patent") is unenforceable by reason of IBM's inequitable conduct, acts or omissions before the PTO. The '785 patent, entitled "Method for Monitoring and Recovery of Subsystems in a Distributed/Clustered System," was filed on February 27, 1996, listing as joint inventors Daniel Manuel Dias, Richard Pervin King, and Avraham Leff. Applicants also filed an IDS on this date. The IDS listed 12 references that are all U.S. patenrs. No other references, including technical papers authored by one or more of the joint inventors were listed. A review of papers authored by the three inventors reveals several that are material to patentability. In particular, Avraham Leff's Ph.D dissertation, entitled "A Dynamic and Decentralized Approach to Management of CPU and Memory," published at Columbia University in 1992, is material to the patentability of the '785 patent application. The dissertation describes a system of resource management that does not require a centralized coordinaton. Sites cooperate in transmitting important state information to each other. Decisions made at one site are then factored by other sites into subsequent decisions. Because this dissertation was material to the patentability of the '785 patent application, the dissertation should have been disclosed to the PTO during prosecution of the '785 patent application. IBM withheld this reference with the intent to deceive the PTO.

Inventor Daniel M. Dias appears as a joint author on three papers that relate directly to the subject matter claimed in the '785 patent. These three papers appear to have been published at about the same time as the '785 patent filing date of February 27, 1996. All three papers list joint authors, none of whom, other than Mr. Dias, appears as an inventor on the '785 patent. "A Scalable and Highty Available Web Server," published in Proceedings of COMPCON '96, lists as authors, in addition to Mr. Dias, William Kish, Rajat Mukherjee, and Renu Tewari. "High Availability in Clustered Multimedia Servers," published in Proceedings - International Conference on Data Engineering 1996, lists as authors, in addition to Mr. Dias, Renu Tewari, Rajat Mukharjee, and Harrick Vin. "Design and Performance Tradeoffs in Clustered Video Servers," published in Proceedings - International Conference on Multimedia Computing and Systems 1996, lists as authors, in addition to Mr. Dias, Renu Tewari, Rajat Mukharjee, and Harrick Vin. All three of these papers describe concepts that can be found in the '785 patent claims, and thus Messrs. Kish, Mukharjee, Tewari, and Vin should have been listed as inventors on the '785 patent. IBM's decision not to list Messrs. Kish, Mukharjee, Tewari, and Vin as inventors on the '785 patent was with the intent to deceive the PTO.

U.S. Patent 5,129,080 ("the '080 patent"), entitled "Method and System Increasing the Operational Availability of a System of Computer Programs Operating in a Distributed System of Computers," filed October 17, 1990, issued July 7, 1992, and assigned to IBM, is material to patentability of the '785 patent, and should have been disclosed by IBM to the PTO. In particular, the '080 patent discloses high availability architectures, cooperative processing among nodes of a computer network, and fault recovery techniques. The '080 patent also discloses sharing of state information among the computer network nodes and global and local management. Because the '080 patent is material to patentability of the '785 patent application, the '080 patent should have been disclosed to the PTO during prosecution of the '785 patent application. IBM withheld this reference with the intent to deceive the PTO.

On information and belief, U.S. Patent 4,953,209 ("the '209 patent") is unenforceable by reason of IBM's inequitable conduct, acts or omissions before the PTO. The '209 patent, entitled "Self-verifying Receipt and Acceptance System for Electronically Delivered Data Objects," was filed on October 31, 1988. The '209 patent, in the section entitled "Background of the Invention," describes only two prior art references: U.S. Patent No. 4,757,533 to Allen et al. and U.S. Patent No. 4,757,534 ("the '534 patent") to Stephen M Matyas et al.

The '534 patent is assigned to IBM. Stephen M. Matyas, co-inventor of the '534 patent, is listed as the author of more than 100 IBM publications related to cryptography or data encryption. Mr Matyas is also listed as an inventor on more than 70 issued patents in this field. Mr. Matyas is well known in the field of cryptography and data encryption at IBM. When the '209 patent application was filed, IBM knew that some of Mr. Matyas' activities were material to th patentability of the '209 patent. However, as noted above, only the '534 patent was listed. IBM failed to cite other material prior art references associated with Mr. Matyas, including, for example, U.S. Patent 4,203,166 ("the '166 patent") in which Mr. Matyas is listed as an inventor. The '166 patent, entitled "Cryptographic File Security for Multiple Domain Networks," filed December 5, 1977, issued May 13, 1980, and assigned to IBM, is material to patentability of the '209 patent, and should have been disclosed by IBM to the PTO.

The '166 patent discloses a file security system for data files created at a first host system in one domain and recovered at a second host system in another domain of a multiple domain network. Specifically, the '166 patent discloses, a first host system that provides a file recovery key for subsequent recovery of a data file at a second host system. The first host system enciphers (modifies) the first host system plaintext to obtain first host system ciphertext as the data file. The file recovery key is used as header information for the data file. When the data file is to be recovered at the second host system, the file recovery key is provided at the second host system and the second host system transforms the file recovery key into a form, which is usable to decipher the data file. The second host uses the transformed file recovery key to perform a cryptographic operation to obtain the first host system ciphertext in clear form (unmodified) at the second host system. Thus, the '166 patent is material to the patentability to the claims of the '209 patent. Because the '166 patent is material to the patentability of the '209 patent, the '166 patent should have been disclosed to the PTO during prosecution of the '209 patent. IBM withheld this reference with the intention to deceive the PTO.

IBM also failed to cite U.S. Patent 4,238,854 ("the '854 patent") in which Mr. Matyas is again listed as an inventor. The '854 patent, entitled "Cryptographic File Security for Single Domain Networks," filed December 5, 1977, issued December 9, 1980, and assigned to IBM, is material to patentability of the '209 patent, and should have been disclosed by IBM to the PTO. The '854 patent was filed concurently with the '166 patent described above.

The '854 patent discloses that an operational key enciphered under the file key of the designated storage madia, as header information, together with the host data enciphered under the operational key is written on the storage media as an enciphered data file. When the data file is recovered, the host data security device transforms the enciphered operational key header information under control of a host master key into a form which permits the operational key to be used for deciphering the enciphered data file to obtain the file data in clear form. Thus, the '854 patent is material to the patentability to the claims of the '209 patent. Because the '854 patent is material to the patentability of the '209 patent, the '854 patent should have been disclosed to the PTO during prosecution of the '209 patent. IBM withheld this reference with the intention to deceive the PTO.

Matyas is also one of the authors of an article entitled "Cryptographic Key Authentication in Communication Systems" published by IBM in March, 1978. The article was published in IBM Technical Disclosure Bulletin, March 1978, pages 3990-92. This publication discloses that message communication protection is obtained by enciphering a clear data message X at a host under control of a working key KS to yield a ciphered data message Y. At the receiving terminal, the enciphered data message Y is deciphered under control of the working key KS to yield the clear data message X.

Another article in which Matyas is an author is entitled "Terminal Control of Encipher and Decipher Operations" published by IBM in August, 1981. The article was published in IBM Technical Disclosure Bulletin, August, 1981, pages 1334-1339. This publication discloses that in communication security applications where data is to be transmitted in a cryptographic session, between a host unit and a remote terminal controller unit, a data encrypting session key (KS) is required to be established in a form suitable for use at each unit. Data may then be enciphered under KS at one unit and transmitted to the other unit where it is deciphered under KS.

Thus, the above publications, published as IBM Technical Disclosure Bulletins, are material to the patentability to the claims of the '209 patent. Because there publications are material to the patentability of the '209 patent, these articles should have been disclosed to the PTO during prosecution of the '209 patent. IBM withheld these references to deceive the PTO.

The foregoing actions constitute inequitable conduct and render the claims of the '746, '785 and '209 patents unenforceable. Discovery in this proceeding is ongoing, and additional acts of inequitable conduct will be added to this defense at the appropriate time.

SIXTEENTH AFFIRMATIVE DEFENSE

SCO has not infringed, literally or under the doctrine of equivalents, any valid or enforceable claim of the '746, '209 and '785 Patents.

SEVENTEENTH AFFIRMATIVE DEFENSE

On information and belief, IBM failed to mark patent articles covered by the '746, 209 and '785 Patents at issue in the counterclaims. Any claim for damages is therefore limited by 35 U.S.C. §287.

EIGHTEENTH AFFIRMATIVE DEFENSE

On information and belief, IBM failed to provide SCO with actual notice of IBM's allegations of infringement of the patents at issue, and therefore IBM cannot recover any damages for SCO's actions before the filing of IBM's counterclaims.

NINETEENTH AFFIRMATIVE DEFENSE

IBM has not and cannot plead and meet the requirements for an award of enhanced damages or attorneys' fees.

TWENTIETH AFFIRMATIVE DEFENSE

SCO has an express or implied license to practice some or all of the claims embodied in the patents at issue.

TWENTY FIRST AFFIRMATIVE DEFENSE

Upon information and belief, IBM lacks standing to assert that SCO infringed some or all of the patents at issue.

TWENTY SECOND AFFIRMATIVE DEFENSE

SCO states that IBM's request for treble damages and attorneys fees is barred because SCO acted in good faith, and this is not an exceptional case within the meaning of the Patent Code.

WHEREFORE, having fully answered IBM's second amended counterclaims, SCO prays for dismissal with prejudice of all claims, or in the alternative judgment in its favor thereunder, together with attorneys' fees and costs, and together with all other legal and equitable relief deemed just and proper by this Court.

JURY DEMAND

SCO demands trial by jury on all issues raised in IBM's amended counterclaims that are so triable.

DATED THIS 23rd day of April, 2004.

By: ______[Signature]______

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark R. Clements
BOIES, SCHILLER & FLEXNER, L.L.P.

Stephen N. Zack
Mark J. Heise

Counsel for Plaintiff/Counterclaim Defendant

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

CERTIFICATE OF SERVICE


Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of SCO'S ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS was served on Defendant International Business Machines Corporation on this 23rd day of April 2004, by U.S. Mail, first class, postage prepaid, on their counsel of record as indicated below:

Alan L. Sullivan, Esp.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]

Evan R. Chester, Esp.
David R. Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenbery, Esq.
[address]


_______[Signature]_______


  


SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text | 361 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here, Please
Authored by: PJ on Thursday, April 29 2004 @ 11:45 AM EDT
Corrections in this thread please. Thanks.

[ Reply to This | # ]

Why they dropped it - And?
Authored by: Anonymous on Thursday, April 29 2004 @ 12:05 PM EDT
Obviously they didn't have any supporting rationale for why it might violate the
US constitution.

But, they were ordered to produce responses to IBM's interrogatories. IBM's
third set of interrogatories asks for details of each of SCO's affirmative
defenses and/or documents on these. I don't think SCO could produce anything
about the constitutionality of the GPL, it was just a bogus argument with not a
shred of support.


P.S.

Any luck on getting the DCC memo in support of their motion for summary
disposition?

[ Reply to This | # ]

SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: Anonymous on Thursday, April 29 2004 @ 12:07 PM EDT
Am I a bit soft in the head??
But I don't get

{Admits that many developers have contributed software code to the Linux kernel,
admits that IBM has contributed code to the Linux kernel, admits that the first
iteration of Version 2.4 of the Linux kernel was released in 2001, but is
without information sufficient to admit or deny the remaining allegations of ¶20
not specifically admitted herein, and therefore denies the same}

How can you "Deny the same" when one is "without information
sufficient to admit or deny the remaining allegations" to either admit or
deny?
-Andy

[ Reply to This | # ]

SCO's Legal Strategy
Authored by: SirFozzie on Thursday, April 29 2004 @ 12:08 PM EDT
Try to confuse IBM by amending their claims as many times as they can, in hope
of slipping something in there to trip them up.

Odds on judge providing legal smackdown on these shenanigans before IBM's Nazgul
Death Squad fubars something to even the minor benefit of the SCOutlaws?: Very
Very VERY short :)

something like 1-150,000, maybe?

[ Reply to This | # ]

SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: Anonymous on Thursday, April 29 2004 @ 12:09 PM EDT
Excellent work PJ et al!

The nonsense will continue to be peeled away until there is nothing left -
except McBride wearing a barrel and holding a sign that says "Will FUD for
food".

[ Reply to This | # ]

SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: Nick on Thursday, April 29 2004 @ 12:11 PM EDT
This behavior is typical. The wild accusations are trumpeted in the news by
press release and friendly columnists. The retraction? We'll see. But if it
follows other news story templates, we might not want to hold our breath to
see Mr. Enderle or Ms. Didio trumpet this bit of news. What typically
happens, say in criminal news, is someone gets accused of a crime -- big
headlines. A few months go by, and then the prosecuters drop the case for
total lack of evidence -- page 22. Meanwhile the accused has to deal with
everyone thinking he was a crook.

Similarly here, I'm sure there are plenty of PHBs that got the "news"
that the
GPL might "be unconstitutional." We'll see how many of them get the
real
news now. Wouldn't be a bad idea to spread this news around ourselves, just
in case Mr. Enderle or Ms. Didio have lost their laptop or something and find
themselves frustratingly unable to write about this big news.

[ Reply to This | # ]

An idea
Authored by: Nivuahc on Thursday, April 29 2004 @ 12:15 PM EDT
We should put together a graphic display or timeline of this case from SCO's
point of view regarding their reasons for suing IBM. We could call it "No,
that's not what I meant to say... what I really meant was..."

What this case started as, according to SCO, and what it is now, according to
SCO, are completely different.

It'd be interesting to see the evolution of what, exactly, they are claiming.



---
My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey!
Look at that chicken!

[ Reply to This | # ]

SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: Anonymous on Thursday, April 29 2004 @ 12:20 PM EDT
So if one were to invert the phrasing originally made, reversed by what they have now dropped, one is left with:

    "The GPL does not violate the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM's claims based thereon, or related thereto, are not barred."

    "IBM does not lack standing to assert these claims."

    "IBM's purported copyright registrations are not invalid and/or IBM has not violated copyright laws in respect to its claims alleged and the claims based on, or related to, copyrights are not barred."

    "IBM is, or may be, the owner of the '746, '211, '209, or '785 Patents at issue."

    "IBM has not failed to join one or more parties needed for just adjudication of the counterclaims, including but not limited to the Free Software Foundation and contributors to the Linux 2.4 and 2.5 kernels."

Seems like we're making real progress, here.

Why does the phrase "going down in flames" immediately come to mind whenever I see or hear "SCO"?

t_t_b

---

Mad cow? You'd be mad, too, if someone was trying to eat you.

[ Reply to This | # ]

Did they mess up on the copyright defense
Authored by: Anonymous on Thursday, April 29 2004 @ 12:25 PM EDT
They still assert IBM doesn't IBM have authority to copyright IBM's own code in
the body of the answer

Yet they've reduced their affirmative defenses

It would be interesting to see how they will be able to argue that IBM can't
copyright IBM's own code, given they don't seem to have affirmative defenses
behind it.

IANAL but I believe affirmative defenses if not presented in pleadings are
waived and can not be used at trial.

[ Reply to This | # ]

Mixed blessing
Authored by: Scriptwriter on Thursday, April 29 2004 @ 12:26 PM EDT
Of course I'm glad to hear they dropped the "unconstitutional"
defense, but keep in mind that SCO is dropping that line of, for lack of a
better word, reasoning, only for this particular lawsuit. Unless the Reality
Distortion Field that The Darl generates has suddenly run out of batteries and I
haven't heard about it, there's nothing to stop them from continuing to push
that particular piece of pretzel logic in speeches, letters to Congress, other
lawsuits and the like. I don't know of any reason why they can't re-introduce it
into SCO vs IBM either, though it seems unlikely.

At the risk permanently warping my brain by thinking like The Darl, my current
working theory is that they dropped the unconstitutionality defense precisely so
they could continue to flog it in public when it suits them. If this thing ever
gets to trial and IBM gets to pound on the question of the constitutionality and
enforceability of the GPL, they will set a precedent when they win that will not
be favorable for SCOG or <groklawium_hat_mode>whoever is pulling SCOG's
strings</groklawium_hat_mode>.

---
Only the heir to the throne of the kingdom of idiots would fight a war on twelve
fronts.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

Hooray! Does this mean the GPL has now been tested in court?
Authored by: Simon G Best on Thursday, April 29 2004 @ 12:26 PM EDT

Hooray!

Does this mean that the GPL has now been successfully tested in court? Or doesn't it quite count, because The SCO Group dropped their claims before it got as far as getting ruled on?

---
Open and Honest - Open Source

[ Reply to This | # ]

GPL is Unconstitutional
Authored by: Anonymous on Thursday, April 29 2004 @ 12:27 PM EDT
Of course to the other 95% of us, the claim was of course merely mildly amusing.

[ Reply to This | # ]

SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: Budgreen on Thursday, April 29 2004 @ 12:29 PM EDT
so, basically there saying is the fact that they havn't provided evidence to
support their case is legally irrelevant?
and deniable.

I would imagine IBM should have no problem proving this point at all, it is a
matter of court record.



---
Hutz: Well, your Honor, we've got plenty of hersay and conjecture, those are
*kinds* of evidence.

[ Reply to This | # ]

SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: Steve Martin on Thursday, April 29 2004 @ 12:31 PM EDT

Someone must have heard the news... stock is down to 6.31 as of 12:30 PM Eastern, the lowest it's been since Jun 4th of last year.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: ExcludedMiddle on Thursday, April 29 2004 @ 12:35 PM EDT
I sat back for a second and tried to figure out why they would retract those
items. They are still trying to delay their trials, so leaving them in would
only help from that point of view. Even though they are unsupportable, they take
time and resources to refute.

My guess: They are building a new legal theory for this case, and those items
will get in the way of their new way of thinking.

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Caldera Inc.?
Authored by: whoever57 on Thursday, April 29 2004 @ 12:44 PM EDT
Could it be that an entity called Caldera Inc existed in 1994, but was wound up and later a new entity that was called Caldera Inc. was formed some time around 2000?

In other words, the company called Caldera Inc. that existed in 1994 is not the same company that was called Caldera Inc. in 2000?

---
-----
For a few laughs, see "Simon's Comic Online Source" at http://scosource.com/

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SCO's Plan
Authored by: dmscvc123 on Thursday, April 29 2004 @ 12:56 PM EDT
They'll file a 3rd ammended complaint and this time they'll claim that Linux
violates Article 17 of the UN's Universal Declaration of Human Rights. Then if
that doesn't work, Darl will call Linux and WMD.

[ Reply to This | # ]

  • SCO's Plan - Authored by: Anonymous on Thursday, April 29 2004 @ 01:15 PM EDT
  • no more amending - Authored by: xtifr on Thursday, April 29 2004 @ 05:41 PM EDT
I don't want them to drop that!
Authored by: Anonymous on Thursday, April 29 2004 @ 12:56 PM EDT
Hi,

I don't want them to drop that silently. They called people thieves and
strenghtened others in their opinion.

They claim IBM did weaken their business but their recklessly interfered with
others businesses and weakened their notion of credibility.

cb

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Oh Yeah!
Authored by: cybervegan on Thursday, April 29 2004 @ 01:11 PM EDT
Not much left of that there case!

We knew they were flogging a dead horse there anyway, but
now at least it's official!

(Now I'd better go back and read the *article* I suppose).

:-D

-cybervegan

---
I wish I never had taken this dare
I wasn't quite prepared
doll me up in my bad luck
I'll meet you there -- verse 2, "Doll" by Foo Fighters

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Affirmative Defense, Ha!
Authored by: Anonymous on Thursday, April 29 2004 @ 01:11 PM EDT
Their AFFIRMATIVE DEFENSE's are equally funny!

I do believe they must feel that those items are in the way of their new
"theory" of how they were violated. So now we will see them turn
around and try to use the very same points the opposit way.

This truly is the text book example of how to mess up your own case by becoming
befuddled from your own attempt to befuddle others. Some hapless fools, actually
no, some hapless criminals they turned out to be.

They have earned their place in history. We don't even have to wish them bad, as
they will end up doing onto themselves as they have done onto others, as the
saying goes.

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Perhaps Microsoft want to save the best(GPL) for last.
Authored by: Anonymous on Thursday, April 29 2004 @ 01:12 PM EDT
For Microsoft the essence is the GPL; the rest is irrelevant really.

Could it be that Microsoft doesn't want to contest the GPL, through idiots
running SCO, but wants to save the fundament against their business for their
own lawyers?

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What we tell the court is "wholly irrelevant"!!!!
Authored by: moogy on Thursday, April 29 2004 @ 01:13 PM EDT
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."

SCOG response:
73. Although wholly irrelevant, admits that the entire transcript
of that hearing is the best evidence of what was said, including
the comments ascribed to counsel, and denies the remaining
allegations of ?73 not specifically admitted herein.

I am absolutely beside myself in anger! What SCOG's legal councel
tells the court is "wholly irrelevant" !?!?!?!

Kevin made the court believe that copyright infringement was
one of the major issues of their case. SCOG created the copyright
infringement controversy that IBM is now asking for a Declaratory
Judgement on and SCOG has denied that there is any controversy
invloved and copyright has nothing to do with the case.

Kevin spent a lot of time, using charts, etc, to argue their
3 major bases of their case. Trade Secrets, Contract Breach, and
Copyright Infringement. They have since abandoned the Trade
Secrets and Copyright Infringement portions of their case, and
IBM deserves a Declaratory Judgement on the Copyright infringement
claims. How can they try to to tell the judge that what they
previously told the court is "wholly irrelevant"?!!!

---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi

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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: Chris Lingard on Thursday, April 29 2004 @ 01:13 PM EDT
This is odd:

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 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.

102. Although legally irrelevant, admits the contents of the Court Order
includes some of the excerpted language but denies all remaining allegations of
¶102.

They have been ordered by the judge to show some evidence.
So how can they claim that this is irrelevent, and deny it?

Also, if they have now stopped denying the GPL; then this
surely opens the flood gates to the illegality of SCO
distributing or selling Linux.

Chris Lingard

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Eighth Affirmative Defense
Authored by: dmscvc123 on Thursday, April 29 2004 @ 01:14 PM EDT
What does this mean?:
"IBM's claims are barred, in whole or in part, by the First Amendment to
the U.S. Constitution, by the doctrine of judicial immunity and by
privilege."

I've lost track, so I don't know what they are saying this in regards to.

[ Reply to This | # ]

SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: rsteinmetz70112 on Thursday, April 29 2004 @ 01:29 PM EDT
Is it me or is this on much better written than the others?

It all boils down to whether IBM had the right to contribute their code to
Linux. If that is not granted, then everything else falls away.

The only other possibility is that there is something in the magic suitcase
which can be tied to IBM.

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Canopy Shell Games
Authored by: Anonymous on Thursday, April 29 2004 @ 01:34 PM EDT
IBM's going to have to get Canopy named in this. The constant shuffling of
assets between the various Caldera shell corporations will create enough
confusion re: who The SCO Group really is, that they can push their assertion
that they are not the successor to the former Linux vendor ("Caldera? Who
are they?"), but a continuation of whatever part of oldSCO did not become
Tarantella. They're trying to weasel their way out of any accountability for
having developed and distributed Linux. Though the actual historical record
paints a different picture of the motivations of the Caldera folks at the time
of the asset purchase from oldSCO, I wonder how much they'll try to revise that
history before the court.

[ Reply to This | # ]

OT - O'Dowd on Linux and Security (again)
Authored by: ankylosaurus on Thursday, April 29 2004 @ 01:34 PM EDT
http://www.ghs.com/linux/manyeyes .html

---
The Dinosaur with a Club at the End of its Tail

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PJ, This is getting difficult to follow....
Authored by: Anonymous on Thursday, April 29 2004 @ 01:51 PM EDT
...well it is for a dumbass novice like me.

I am having real difficulty understanding how the sco group has changed name and
what the company is/was. Which company is successor to which and what has this
got to do with spiders/craters?

A flow chart of name/assets vs timeline would be helpful, or a link to such if
one already exists.

Thanks ever-so.


dumbass
xxx

[ Reply to This | # ]

Who are SCO and what do they own?
Authored by: ekendrick on Thursday, April 29 2004 @ 01:56 PM EDT
Thanks for the history of SCO PJ, I can see why there is an alleged ownership issue. Can someone help me fill in the gaps:

SCO parentage
1994 Caldera Inc founded as a private company.
1995 Caldera Inc was incorporated.
...
1998 Caldera Systems Inc (Utah) was incorporated.
2000 Caldera Systems Inc (Delaware) was re-incorporated.
2000 Announced that a new Caldera Inc would be formed. It would wholly own Caldera Systems Inc and also own parts of The Santa Cruz Operation Inc (including SCO OpenServer)
2001 Caldera International Inc (Utah) formed. It wholly owns Caldera Systems Inc (Delaware) and also owns parts of Tarantella Inc
...
???? Caldera Systems Inc becomes The SCO Group Inc, then later sues all and sundry.

Questions
1. What was the relationship between the 1995 Caldera Systems Inc and the 1998 Caldera Systems Inc?
2. What parts of 2000 The Santa Cruz Operation Inc became the 2001 Tarantella Inc? Or put it another way: Was the exclusive distribution rights for SCO Openserver included? And does this include the administration of Novells SVRX licenses?
3. Is the present day SCO Group Inc (Delaware) a separate company from the 2001 Caldera International Inc (Utah), or are they now the same single company?

My thoughts at the moment:
1. It is not clear that SCO Openserver includes the Novell licenses
2. It is not clear that 2001 Caldera International Inc (Utah) actually did buy SCO Openserver (or anything specific)
3. It is not clear how SCO Group Inc (Delaware) can lay claim to anything that was purchased by Caldera International Inc (Utah).

Therefore, exactly what does the SCO Group Inc (Delaware) own to be able to make any allegations?

A little help here!


---
I am a computer programmer, not a lawyer. My opinions are my own, and sometimes those of the voices in my head.

[ Reply to This | # ]

Hmmm.
Authored by: bobn on Thursday, April 29 2004 @ 02:00 PM EDT
Maybe we shouldn't be in a hurry to get SCO into Court. At this rate, they will
have drope *all* claims by 4/2005.

[ Reply to This | # ]

  • Hmmm. - Authored by: Anonymous on Thursday, April 29 2004 @ 02:37 PM EDT
International party
Authored by: rmorrish on Thursday, April 29 2004 @ 02:19 PM EDT
Should you really wear that color, PJ? I thought only the injured party could seek reddress?
Obviously, men attending the party should dress formally.

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Jury Demand
Authored by: doug on Thursday, April 29 2004 @ 02:27 PM EDT
JURY DEMAND
SCO demands trial by jury on all issues raised in IBM's amended counterclaims that are so triable.

Have they been asking for a jury trial all along, or is this a change? If the goal of SCO is to string things out as long as possible, then I'd think that seating a jury would be a huge win. But I don't remember seeing the request before. Has this been around since day one, or did I overlook something?

- doug

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  • Jury Demand Long time here - Authored by: Anonymous on Thursday, April 29 2004 @ 02:53 PM EDT
    • Jury? - Authored by: Anonymous on Thursday, April 29 2004 @ 04:38 PM EDT
      • Jury? - Authored by: Anonymous on Friday, April 30 2004 @ 12:16 AM EDT
  • Jury Demand - Authored by: Anonymous on Friday, April 30 2004 @ 01:50 PM EDT
SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: wvhillbilly on Thursday, April 29 2004 @ 02:34 PM EDT
From SCO's answer to IBM's second amended counterclaims:
84. Admits the existence of the letter of June 12, 2003 but denies any right in Novell to waive or revoke SCO's rights and denies any legal or factual basis for the letter and denies the remaining allegations of P.84 not specifically admitted herein.
From the Asset Purchase Agreement between Novell and Santa Cruz Operation, section 4.16B:
(b) Buyer shall not, and shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of Seller. In addition, at Seller's sole discretion and direction, Buyer shall amend, supplement, modify or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller. In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and hereby is granted, the rights to take any action on Buyer's own behalf. [Emphasis added]
Looks to me like the above is all the authority and legal basis novell needs to take the action it did (waiving SCO's termination of IBM's SVRX license), and this very section was referenced in Novell's letter of June 12 (below):
Gentlemen: Reference is made to the following:

- Asset Purchase Agreement by and between The Santa Cruz Operation Inc. and Novell, Inc., dated as of September 19, 1995, and more particularly to section 4.16(b) of that agreement;
- Amendment No. X to software agreement SOFT-00015...

and two letters...

How can SCO say Novell has no legal authority or basis to take the action they did when that authority is cited right in the letter telling SCO what they did? Does SCO think they can just pretend 4.16(B) doesn't exist and that'll make it go away? Or are they even crazier than I thought they were?

---
What goes around comes around, and it grows as it goes.

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Wake up, FSF!
Authored by: Anonymous on Thursday, April 29 2004 @ 02:34 PM EDT
And tomorrow's press release will say "SCO withdraws alls claims about and
objections to GPL.", right? Right?

Because if not, the last thing that the general press will have reported is that
SCO claimed the GPL is unconstitutional and unenforcable, and that's the last
thing that corporate decision makers will remember.

You do *get* that, right? We can't sit around and wait for a court to decide
this one, because nobody (who matters) will hear about it for years.

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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: Zeke on Thursday, April 29 2004 @ 02:35 PM EDT
SCO is a little confused about how the GPL works. It does *not* transfer
Copyright to the FSF. If they think it does and therefore the FSF has to enforce
that copyright they are wrong. It is up to the owner of the Copyright to enforce
it. Let's say I make program "foo" and liscense it under the GPL.
Someone comes along and takes my code and uses it in their program but liscenses
their program under the BSD liscense. Now, the FSF can't do anything unless I
allow them to act as representatives of me.

Only Trademarks are lost/void if you don't enforce them.

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So what happened to the Earn out period?
Authored by: Anonymous on Thursday, April 29 2004 @ 02:58 PM EDT
Refering to this grokl aw thread, there was a 3-year payout of the OpenServer business to Old SCO, that can hardly have begun before mid-2001. That means it should be ending--right about now.

Here is the relevant section:
(B) During the three year period (the "Earn-out Period") beginning with the first, full Caldera Fiscal Quarter following the Effective Time (provided that if the Effective Time falls within the first five days of any Caldera Fiscal Quarter, then the Earn-out Period shall begin with such Caldera Fiscal Quarter), SCO shall be entitled to receive from Newco on each Earn-out Payment Date 45% of the amount by which OpenServer Revenue for the prior four full Caldera Fiscal Quarters is higher than the cumulative Earn-out Thresholds for such periods (such amount, an "Earn-out Amount"). Notwithstanding the intention of this provision that the parties shall share in the future revenue of the OpenServer Business as operated by Newco, such operation of the OpenServer Business shall be in Newco's sole discretion, and Newco shall be under no obligation to provide any minimum level of support to the OpenServer Business.

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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: Anonymous on Thursday, April 29 2004 @ 03:17 PM EDT
Am i reading too much into this (pasted from above):

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 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 Second Amended Complaint.

Surely any judge reading that will have a lightbulb going off, regardless of how little they know about the tech?

[ Reply to This | # ]

Okay, maybe you can help me out
Authored by: mhoyes on Thursday, April 29 2004 @ 03:49 PM EDT

As I understand it:

1) IBM said, in court, that SCO dropped the trade secrets claim. At that time, SCO did not disagree, which means that it is accepted as fact now.

2) SCO is saying that this case is just about contract law, and not copyright or patents.

3) The contract issue is that SCO has "revoked" IBM's right to distribute AIX.

The problem, as I see it however is that in the letter to IBM giving them 100 days to remedy the situation, they gave the reason as:

Notwithstanding these provisions, IBM has subjected our UNIX trade secrets to unrestricted disclosure, unauthorized transfer and disposition, unauthorized use, and has otherwise encouraged others in the Linux development community to do the same.

Which would seem to indicate that since the trade secrets issue has been dropped, then SCO can't have revoked the license as the conditions that lead to that haven't occured (as agreed to by SCO). Therefore, where is the case? The only things I see are IBM's issues with SCO in their counterclaims and this would seem to put SCO in a very bad spot.(I can actually see this being argued before the judge and having him/her fall out of their chair.)

Now, of course, this is ignoring the revocation of the revocation by Novel, and just using SCO's own words against them.

Thinking about it, I think SCO should have gone by the adage: Once you open a can of worms, the only way to recan them is to use a bigger can. and the corollary to this Don't open a can of worms unless you plan to go fishing.

meh

Appologies if this has been discussed before.

[ Reply to This | # ]

When do we get the ultimate lawsuit?
Authored by: jfabermit on Thursday, April 29 2004 @ 03:53 PM EDT
Assuming that some court finally rules that SCOX lacks the copyrights to UNIX or
that Linux is clean anyway, and the rest of their court cases begin to crumble,
how long will it be until SCOX sues Tarantella claiming that during the great
Unix Licensing and name swap that OldSCO misinformed NewSCO about what exactly
they were buying?

I wish I was kidding about this, but as SCO lawsuits go, it wouldn't really even
be the most bizarre...

[ Reply to This | # ]

  • Ultimate lawsuit? - Authored by: Anonymous on Thursday, April 29 2004 @ 04:30 PM EDT
A parody for all you LORT fans.
Authored by: kbwojo on Thursday, April 29 2004 @ 03:54 PM EDT
The software has changed.

I feel it in the code.

I feel it in the compiler.

I smell it on the printout.

Much that once was AT&T, is lost
For few now live who remember it.

It began with the forging of the great agreements.

Some were granted to the Universities:
Wisest and fairest of all.

Some bought by the hardware lords:
Great creators and craftsmen of the mainframes.

And some, Some agreements were bought by the Software Companies,
above all else, they desire money.

For within these agreements was bound the strength
and the will to govern the software.

But they were, all of them, deceived;
for another agreement was made.
In the land of SCO, in the fires of Mount McBride,
the Dark Lord Darl forged, in secret, a master agreement.

And into this agreement he poured his cruelty, his malice
and his will to dominate all software.

One agreement to rule them all.

One by one, the truths of the agreements fell
to the falsehoods of the master agreement.

But there were some who resisted.

An Alliance of IBM and Novell
marched against the armies of Sco.

And on the slopes of Mount McBride they fought
for the software.

Victory was near,
but the power of the master agreement could not be undone.

It was in this moment, when all hope had faded,
that David R. Marriott, lawyer for IBM, took up his judicial sword.

Darl, the enemy of Open Source, was defeated.

[ Reply to This | # ]

SCO Has NOT Admitted That the GPL Is Constitutional!
Authored by: wepprop on Thursday, April 29 2004 @ 04:02 PM EDT
I see some people, here and elsewhere, making a leap of faith from the fact that
SCOX has dropped their unconstitutionality claim from this matter, to concluding
that SCOX has thereby admitted that the GPL is constitutional.

Actually, a cynic like myself would argue, removing that claim from these
proceedings prevents that question from being definitively decided against them
and thus gives them the opportunity to introduce that very same claim in other
matters and proceedings, with the intent to further prolong the fear,
uncertainty, doubt, confusion, and delay.

This would be, furthermore, consistent with the methodology of the "Big
Lie", which says that the more times people hear a lie, the more often they
are to believe it.

[ Reply to This | # ]

[OT] Show me da FUD !!
Authored by: vruz on Thursday, April 29 2004 @ 04:30 PM EDT

Want to hear something funny ?
Wait !
Want to read an entirely funny book ?

http://www.e-balkani.com/book/author.htm




---
--- the vruz

[ Reply to This | # ]

GPL gains clout in German legal case
Authored by: Anonymous on Thursday, April 29 2004 @ 04:52 PM EDT
GPL has been tested in court (although not US):

http://news.com.com/2100-7344-5198117.html?tag=nefd.hed

- Quietly watching...

[ Reply to This | # ]

Daimler/Chrysler
Authored by: Glenn on Thursday, April 29 2004 @ 05:05 PM EDT
And article referenced on Lewis Mettler's lamlaw site says that
Daimler/Chrysler has not used the AT&T software for seven years. I think
that someone on this site already has opined that such was probaby the case.
Here is the url id anyone is interested.
http://www.infoworld.com/article/04/04/29/HNdaimlerlawsuit_1.html

Sorry if it gets broken up. And sorry if someone else has already posted
this.

Glenn

[ Reply to This | # ]

Caldera's Fourth International
Authored by: John Goodwin on Thursday, April 29 2004 @ 05:22 PM EDT
Here is a re-write of my investigative trip through the mergers and company changes detailed in this thread's header. Did you know there was a 4th Amendment to the Reorg, in July 2002?

Refering to this groklaw thread,

http://www.groklaw.net/article.php?story=20040221183849777

So adding this thread to that one, "Caldera Systems" is a wholly owned subsidiary of "newco" a.k.a. "Caldera Holdings" a.k.a. "Caldera International" a.k.a. "The Caldera Group" a.k.a. "The SCO Group". The name changes occur from August 2000 to May 2001 when the deal is consumated.

Caldera International, spawned a wholly owned "merger sub" which merged with "Caldera Systems" and swapped "newco" stock with it, leaving "Caldera Systems" as "Surviving Caldera", only this time with "newco" stock in the hands of Canopy and Old SCO. Canopy still has its share, but Old SCO (TTLA, Tarantella) sold its 28% stake in SCOX back in 2002 for around $100,000 in cash and $5M of the $8M promissary note. In other words, it took a loan writedown bath and got out with what cash it could.

Part of the "restructuring deal" was a 3-year payout of the OpenServer business and to Caldera International (*not* as commonly asserted to Caldera Systems), that can hardly have begun before mid-2001.

Here is the relevant section:
(B) During the three year period (the "Earn-out Period") beginning with the first, full Caldera Fiscal Quarter following the Effective Time (provided that if the Effective Time falls within the first five days of any Caldera Fiscal Quarter, then the Earn-out Period shall begin with such Caldera Fiscal Quarter), SCO shall be entitled to receive from Newco on each Earn-out Payment Date 45% of the amount by which OpenServer Revenue for the prior four full Caldera Fiscal Quarters is higher than the cumulative Earn-out Thresholds for such periods (such amount, an "Earn-out Amount"). Notwithstanding the intention of this provision that the parties shall share in the future revenue of the OpenServer Business as operated by Newco, such operation of the OpenServer Business shall be in Newco's sole discretion, and Newco shall be under no obligation to provide any minimum level of support to the OpenServer Business.

That means it should be ending--right about now. What happened? The answer, after a bit of digging, is--

Here is New SCO (Caldera International) admitting, in a press release, that it needed to prepay certain license fees to Old SCO (Tarantella), as late as 2002. What is that about?

http://www.unicat-communications.de/tech/php/xin.php?kid=3&prm_id =196

The Company and Tarantella Inc. also agreed to modify the agreement and plan of reorganization between the two companies and to permit the resale of certain additional Tarantella products by the Company. These changes eliminated the right to an earn out payment to Tarantella based on OpenServer revenues of the Company for the three years following the completion of the earlier transaction with Tarantella, Inc. In connection with the license of additional products, the Company agreed to prepay certain licensing fees. The Company paid a total of $500,000 to Tarantella, Inc. in connection with the purchase of the earn out rights and the prepayment of licensing fees.

Here's what happened--

http://www.linuxplanet.com/linuxplanet/reports/4282/3/

Here is the Tarantella (TTLA) side, from their Annual report:

http://www.tarantella.com.mx/investor/info/reports/pdf/2002/annualpr oxy2002.pdf

Note 6 shows license revenue from "related parties" (which, given that Tarantella held SCOX stock in that time frame, would be New SCO?)

Third party revenue goes from 118M (2000) to about half that 52.5M (2001), suggesting it was OpenServer revenue that was sold off in mid 2001. That leaves the related parties 546,000 which might be mostly New SCO. Other figures suggest 300,000 to 400,000 in license revenue from "related parties". Prepaid revenue is a liability, so it ought to show up there as "deferred revenue" or something similar. Yup, there it is.

Now the interesting thing is that TTLA has "prepaid royalties" of about that magnitude--they wouldn't be collecting royalties for NOVL, would they?

So it makes one wonder whether the "$500,000 in cash" that SCO sent to Tarantella in July 2002 was mostly licensing fees, and not so much early payoff of debt or stock repurchase, as claimed. Indeed it was. The SCOX press release would like to leave the impression that 28% of SCOX is a valuable buy at $500,000, with some insignificant license revenue to be prepaid. But let's look a bit closer.

From the Tarantella 10-Q for 2002 3Q of their Fiscal year:

http://sec.gov/Archives/edgar/data/851560/000102140802010680/000102140 8-02-01068 0-index.htm

"In the third quarter of fiscal 2002, the gain (loss) on Caldera included $0.1 million for the buy out of the OpenServer earn-out and a $0.3 million adjustment for excess royalty reserves associated with the original Caldera agreement."

So the press release says $500k to buy out Tarantella's share of the OpenServer revenue stream, and "a few prepaid license expenses". But Tarantella reports that's more like 100,000 for the revenue stream (and $3M note write off), plus 300,000 for "prepaid royalties". Why would SCOX owe 300,000 in *future* royalties to TTLA? That wouldn't be for UnixWare, now would it?

This deal is consumated in the "missing 4th Amendment" that is in fact available as an "Material" filing. It says $100,000 and provides details of the amended stock repurchase. That's $100,000, not $500,000-$550,000 like the various press releases.

From the May 10-Q (before the July cash payout and press releases posted earlier:

http://sec.gov/Archives/edgar/data/851560/000101287002002205/000101 2870-02-002205-index.htm

"Additionally, Caldera International agreed to the buyout of certain licenses for products bundled in older releases of The Santa Cruz Operation, Inc.’s software, and the buyback of 500,000 post split shares of Caldera International stock held by the Company for $550,000. "

So there you have it, in July 2002, SCOX paid TTLA what SCOX press releases call "prepaid license fees" but TTLA filings call "buyout of certain licenses". They paid $300,000 not for OpenServer revenue stream (that was worth $100,000, plus a $3M writedown by TTLA for the promissary note and writeoff of SCOX worthless stock, which was "bought back"), but for "certain licenses for products bundled in older releases of The Santa Cruz Operation, Inc.'s software"--OpenServer. So if Caldera International owned OpenServer and UnixWare in 2001, why are they still paying Tarantella for it in mid 2002?

What $300k buys is "some old IP"--for which the Excluded Assets and other documentation have been conveniently lost.

So which is it SCOX and TTLA? Was it a buyout or like SCOX said--prepay. And what was it for? Speak up or plunge into oblivion. Are old UnixWare rights being funnelled through TTLA to NOVL? And why is $400,000 a year in old royalties for SCO OpenServer on the upstream end worth billions on the downstream end, even if you can find the missing documents?

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The whole case is in tatters monkeyboy
Authored by: SilverWave on Thursday, April 29 2004 @ 05:32 PM EDT

Just Logged on to say...


Ha! Ha! Ha! The jig is up SCOG!


Sorry just couldn’t resist it! ;-)


1st the daft "Trade Secret" claims were dropped, now this lot....


Earth to Darl, Earth to Darl...This is reality calling!


Q: What’s left! The whole case is in tatters monkeyboy :-p



Thanks PJ this has really cheered me up :-)


---
Oxymoron of the day is … “SCO's Ethics”

LOL!

I dare you to say it and not laugh!!!


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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUN
Authored by: Anonymous on Thursday, April 29 2004 @ 06:06 PM EDT
From IBM
38. SCO Linux products encompass a range of software that uses a number of different licensing schemes, including open-source licenses and, in particular, the GPL. Components of SCO's Linux products (such as OpenLinux), including the Linux kernel, have been developed and made available for licensing under the GPL and similar licenses, which generally allow any person or organization to copy, modify and distribute the software, without royalty, in any form, including source code.

From SCO
38. Admits that some of its products were previously made available for licensing under the GPL, but denies the remaining allegations of ¶38 not specifically admitted herein.

SIXTH AFFIRMATIVE DEFENSE
The General Public License ("GPL") is unenforceable, void and/or voidable, and IBM's claims based thereon, or related thereto, are barred.

So the GPL was good enough for them to use and distribute products with. But not good enough when its used against them. I bet the judge will love this.

SticK

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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: AdamBaker on Thursday, April 29 2004 @ 07:34 PM EDT
ZD Net are now reporting the DC dismissal request here and even provide a link to Groklaw - they rarely provide offsite links in their articles so that is quite an acheivment.

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Here is The Killer Q!
Authored by: bsm2003 on Thursday, April 29 2004 @ 08:35 PM EDT
10. In 1993, AT&T sold its Unix assets -- then held by its subsidiary, Unix System Laboratories, Inc. ("USL") -- to Novell, Inc. ("Novell"). In 1995, Novell sold some, but not all, of its Unix assets to The Santa Cruz Operation, Inc., now known as Tarantella, Inc. ("Original SCO"), which is not affiliated with counterclaim-defendant SCO.

10. Admits that AT&T sold UNIX assets, through its subsidiary USL, to Novell in 1993, admits that Novell sold UNIX assets to The Santa Cruz Operation, Inc., now known as Tarantella, Inc. ("Tarantella") in 1995, but denies that Novell sold only part of its UNIX assets and further denies the remaining allegations contained in ¶10 not specifically admitted herein.

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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: James on Thursday, April 29 2004 @ 09:04 PM EDT
Don't know if anyone else made this obvious joke, but PJ don't forget a matching
Red Hat for that dress ;)

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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: blacklight on Thursday, April 29 2004 @ 09:05 PM EDT
"SCO New 30: "Admits that there was an entity known as Caldera, Inc.
in 1994, admits that in 1998 Caldera, Inc. sold certain of its assets to Caldera
Systems, Inc., but denies the remaining allegations in ¶30 not specifically
admitted herein."

As a security person, it just occurred to me that SCOG was engaging in identity
theft when it reinvented itself as SCOG from Caldera and essentially hijacked
Old SCO's corporate history as its own. The identity theft was probably a
necessary step for SCOG as SCOG claims to be the successor of interest to Old
SCO.

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SCO Drops Its Claim That the GPL is Unconstitutional - SCO's ANSWER TO IBM'S SECOND AMENDED COUNTERCLAIMS - as text
Authored by: blacklight on Thursday, April 29 2004 @ 09:26 PM EDT
"DROPPED: "The GPL violates the U.S. Constitution, together with
copyright, antitrust and export control laws, and IBM's claims based thereon, or
related thereto, are barred." PJ

I don't know how much benefit SCOG derives from dropping this affirmative
defense, given that this affirmative defense was also one of the Darl's most
consistent public statements - a.k.a. the kind of statements that should be
actionable under the Lantham Act.

In general, dropping the silliest and most strident affirmative defenses is a
tactic whose benefit is lightening the burden of proof from SCOG's shoulders.
However, if SCOG is expecting a gain in respectability from dropping these
affirmative defenses, then SCOG is going to be sorely disappointed: most
retracted stories don't make it to page 1, and SCOG's retractions won't either -
And I am not even going into whether SCOG's retractions are a mere legal tactic
rather than a sincere change of heart: I think we have all made our assessment
on that subject, and none of us were born yesterday.

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Is SCO Droping calims to frustrate IBM?
Authored by: Anonymous on Thursday, April 29 2004 @ 09:51 PM EDT
I'm starting to think that SCO has come up with all these claims only to drop
them one-by-one to frustrate IBM. I believe they are doing the same by amending
the suite time after time dropping some charges and adding others. I think they
are doing this simply to keep IBM's lawyers busy and maybe hiding something
behind their back (like M$). I know if I was IBM I would be pretty frustrated by
now with all the changes SCO is making. Can't the judge say "enough
already"?

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Overcoming the Constitutional GPL and other SCO concerns
Authored by: webster on Thursday, April 29 2004 @ 10:58 PM EDT
In IBM's words this is what is left:

"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."

SCO's initial claims have collapsed for lack of evidence. They brought the
complaint, they have the burden of proof, they have to disclose that proof.
Without disclosure, there is no proof, the claim is gone.

The "meritless contract and other claims" is IBM's polite way of
saying they do not pass the laugh test. No one is laughing yet because they
have not specified the code. There is nothing to laugh at.

SCO has never been able to recognize their own supposed code. This is why they
distributed it for years under the constitutional GPL. Now SCO continues saying
they can recognize their own altered code if IBM gives them all the code IBM has
written after receiving the system V code. The judges have not bought this
argument numerous times in the discovery battles. But like the battery bunny
they take a licking and keep on ticking. It's all they can say without
evidence. "We'll have the evidence when IBM gives it to us, if it
exists." They keep a stiff upper lip and trudge on more for survival than
pride. This was a bluff from the start. How could it fail? Litigious
monetizing is the American way. Not even the lawyers understand these things.
People just pay the lawyers buy their peace.

It failed for SCO because the goals were conflicted. SCO's motive was greed.
MS motive was to destroy or severely retard Linux. Instead of picking off
little guys and building up their claims and recoveries, MS prevailed and had
them target IBM with Boise. It looks like only MS has succeeded in their goal.
If Longhorn, .Net, DRM and other propietary schemes catch on, they will
tax/license the world and thereby rescue and, even strengthen, their monopoly.




---
webster

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  • Boise?? - Authored by: Anonymous on Friday, April 30 2004 @ 11:15 AM EDT
It's not a funny game, Darl
Authored by: Anonymous on Friday, April 30 2004 @ 02:41 AM EDT
I would like to join in the happy dancing and celebrating, but I just don't feel
festive. It's a travesty that a meritless case can drag on, cost many millions
of dollars, and tie up court resources. I suppose in US Court Years, which are
like dog's years, it's an eyeblink. Which is also a sad commentary.

SCO has not met even a minimal level of proof of any of their claims. They never
intended to. It's all a big game, and never mind who gets hurt- their employees,
the employees of the companies they are suing ('cause the suits never take the
hits), and random collateral damage as Darl et al spew and froth and foam. These
same heinie-wipes who refuse decent pay and working conditions for the people
who really do the work have too good a time wasting tens of millions of dollars
on...what? What are these goons going to gain?

I'll wager there are some Groklaw faithful who have been involved in litigation-
auto accidents, fraud, contract disputes- and it was damned serious. Not a silly
tee-hee game, where the one with biggest mouth thinks he has the biggest nads.
But a serious, life-changing endeavor, where legal fees, time lost from work,
and stress make you wonder if it's worth it; where the prospect of losing means
you'll take a real hit and go bankrupt; where even winning might not gain you
that much.

For me, a just outcome would be for Darl, his Dark Masters, and all the little
henchpeople and shills to lose everything, and spend the rest of their lives
scrambling for low-wage jobs.

On second thought, I will join in the happy dancing. It's better than feeling
gloomy. :)

--
Alrac

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Contradiction about GPL
Authored by: cc_benny on Friday, April 30 2004 @ 09:31 AM EDT

26. [...] denies that the GPL applies to any program whose authors commit to using it, denies enforceability or applicability of the GPL, [...]

27. Admits that the GPL allows a licensee to distribute copies of free software, receive source code and change and use the software in new free programs [...]

Don't these two statements contradict each other? Or is there some odd reading in which this would be consistent? I don't see it. Maybe they mean "the GPL purports to allow" in 27?

If the GPL doesn't apply to programs where the authors want it to, it doesn't apply anywhere. If it doesn't apply, it doesn't allow anything.

Of course if the GPL doesn't allow the redistribution of Linux or Samba, than TSG breaks copyright law by continuing to distribute these packages, so that may be a reason to not say certain things about the GPL. It looks like they still haven't thought this through to the end...

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SCO Still Claims GPL Unconstitutional
Authored by: dmscvc123 on Friday, April 30 2004 @ 01:08 PM EDT
Wont SCO have to explain this in court?:
http://www.eweek.com/article2/0,1759,1581586,00.asp?kc=EWRSS03119TX1K0000594
That's also really not squaring up with their past and current use of the GPL.

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