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SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
Sunday, May 02 2004 @ 02:26 PM EDT

Here it is as text, SCO's MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR TO STAY COUNT TEN OF PLAINTIFF IBM'S SECOND AMENDED COUNTERCLAIMS AGAINST SCO. Have you noticed how long the titles are becoming? A whole lot of motion practice going on.

SCO dropped its "the GPL is unconstitutional" affirmative defense and now, in this document, they try to get IBM's Counterclaim Ten dismissed or stayed by claiming that they have brought no copyright infringement claim against IBM for "IBM's Linux activities" after all. They are not suing IBM for "IBM's use, reproduction and improvement of Linux":

"The only copyright claim SCO has asserted against IBM is primarily for IBM's continuing use of AIX and Dynix after SCO terminated IBM's UNIX licenses. See Second Amended Complaint, Count V. The Second Amended Complaint, however, does not contain a claim against IBM for copyright infringement arising out of its use, reproduction or improvement of Linux. With SCO's Second Amended Complaint being the final amendment and not containing a claim for infringement arising out of IBM's Linux Activities, the need for IBM's Tenth Counterclaim seeking such a declaratory judgment is nil."

After the past year's media circus, you have it straight from the horse's mouth. The only copyright infringement claim they assert against IBM is for using and distributing AIX and Dynix after SCO "terminated" IBM's license, a termination that Novell told us they overruled. That's it, folks. What does that tell you?

It tells me that they looked and have failed to find copyright-infringing code in Linux that they can pin on IBM, except maybe for their unusual derivative code theory relating to AIX and Dynix. I believe only BayStar still thinks that will fly. I have my doubts even they do.

They do claim in footnote 3 that they are litigating against IBM regarding its improvements to Linux, in a claim that "arises out of IBM's distribution of AIX and Dynix." But if you put that sentence together with the above, you see that they are only talking about post-"termination" use and distribution of AIX and Dynix. I know. It makes no sense. The footnote alone should defeat the motion, by admitting that there is an issue that would not be decided by the AutoZone case. But the real problem is, if they say it all clearly, the counterclaim won't be dismissed or stayed, so they present the court with some doubletalk. It's not about IBM's improvements in Linux when they want Counterclaim 10 dropped, but it is kinda, sorta about that with respect to Counterclaim 9, which they don't want dropped.

To say it clearly, I think you'd have to say: "Please dismiss this counterclaim, because if IBM wins it, and we think they will, then all our AutoZone and son of AutoZone end user lawsuits might die. The whole world will laugh at us, and besides, our case against IBM could blow up. Plus, it would kill our FUD. If you can't bring yourself to dismiss it, please stay it while we waste some more time in Nevada, so the real issues won't be litigated anywhere soon and we can threaten end users a little longer."

You think they'll send Congress another letter, correcting the false impression they created about "piracy" and other nonsense in the letter they sent them? Of course not. FUD is designed to linger in the air, like the smell of smoke from somebody's cigarette. I'd have a few choice words on the subject, but I'm confident IBM will mop up the floor with them by the time this is done. Imagine how they must feel, accused internationally of a "crime", with letters to Congress, no less, and press conferences, and road shows, all making them look like copyright infringers who "stole" SCO's code. And now, after discovery, it's "never mind". Nothing but a contract dispute.

Wall Street obviously thinks it's all baloney, as you will see by this story about the recent Linux on Wall Street Show & Conference. Somebody needs to send a memo to Henning Kagermann, the CEO of SAP, though, who is "wary of open source" because of IP worries. Or so he claims:

"Kagermann stood alongside Dell CEO Michael Dell at a press conference in New York to promote a new alliance between their companies. The arrangement involves increased service and support for customers running SAP applications on either of the two OS's that Dell ships: Windows or Linux. But Kagermann expresses caution when it comes to the second of those options. 'I'm not sure personally about the future of open source,' he says.

"Kagermann's concerns are rooted in the intellectual property issue. Without directly mentioning SCO Group's legal campaign against Linux distributors and users, Kagermann says, 'There are some open questions for me. They start on the legal side. A few things could happen that could kill Linux.'

"Like what? If software companies using open source were forced to extract code from their products because of an IP violation, 'then people like us will be extremely carefuly in using open source,' he says. Kagermann acknowledges his views on open-source and IP are influenced by the fact that SAP is Europe's largest commercial software company."

First, judging from what has happened so far, there don't appear to be any such issues, just contract claims against anyone foolhardy enough to enter a contractual relationship with SCO. Is he predicting an IBM-related pulling out of code? Second, IP violations occur every day in the proprietary world, judging by the constant stream of lawsuits they file against each other. To pretend this is an issue that is Linux-specific is cynical or just wrong, depending on his motives and level of education. It could just be that his company is well-named.

Linux community code appears to be purer than the driven snow, cleaner than anybody's code, as far as infringement is concerned. Stop and think. For an entire year, SCO has been in discovery, with access to AIX and Dynix, and they already had System V code and full access to publicly accessible Linux code, and they failed to find any copyright infringement on IBM's part other than the contested license issue. Could there be a more ringing endorsement of Linux's purity than that? Obviously, the international band of Linux kernel authors have behaved honorably and respectfully of other people's intellectual property rights. Even in a worst-case scenario, if IBM were found guilty of violating their license with SCO, all that would prove is that the Open Source methodology is safe, but you'd best beware of large corporations.

I see the moral of this story as being that the Open Source community has been certified as more upright than the proprietary side. That is SCO's achievement. Thanks, SCO, BayStar and all your helpers, for spending all those millions to prove to the world we are not pirates and that the community never stole any code. Do you believe that if we were given a year to sort through Microsoft code and look for IP violations we wouldn't find any? Or SCO's? Now there's a pleasant mental image, huh?

My point is, the dark side tried and failed. They told the world that there was a problem, due to the open nature of Linux. They alleged there *must* be copyright violations, because of the open source method of development. Maybe they thought that because they steal code and hide it, we do too. But they were wrong. The community lives by a different ethical standard. And due to the open nature of Linux, everyone in the world having access to the code 24/7, how stupid would you have to be to steal someone's code and try to put it in Linux? It's just OldThink. Linux is counterintuitive to OldThinkers. Now, SCO is back-pedalling, because it's time to put up or shut up in court in the IBM case.

SCO, in this document, pretends that they believe copyright infringement has happened and that all that will be resolved in the AutoZone case:

"In the AutoZone case referred to in IBM's Second Amended Counterclaims, the issues of whether the use and reproduction of Linux infringes SCO's copyrights is squarely at issue."

That's just trying to move the pea to a different shell in the game. And it's not true. It's not squarely at issue. AutoZone is an auto parts company. They don't contribute to the Linux kernel in any way. They can't, therefore, be a primary copyright infringer. Somehow, SCO wants us all to believe that there is no primary infringer yet proven but end users are guilty of copyright infringement for using the software. They skipped the essential Whodunnit part. If there is infringement, somebody must have infringed. Who? They told us for a year that it was IBM. But now they seem to be backing off except for contract claims. They told us SGI, but they never sued them. They threatened Red Hat but then begged the court to drop that case. So who is the infringer, the "pirate" here?

To pretend that an end user lawsuit can resolve *all* copyright infringement issues is ridiculous. Maybe they are hoping the judge is too busy to read carefully. But the elephant on the table is, if there was copyright infringement, who did it? Where is it? And why isn't SCO suing *them*? You know they would if they could.

I honestly don't see how any of this can be resolved by AutoZone. They couldn't be more in the dark about the Linux kernel. How can they prove if there has been infringement or not? No doubt that is why SCO would like IBM to wait for that case to go first. But if AutoZone goes first, then the decision about contributory infringement will be decided before any court has decided whether there has been primary copyright infringement by IBM or anybody else and before any court has decided whether SCO owns the copyrights or Novell does. That is, to say the least, backwards. Things are looking mighty bleak for the SCOfolk if this is their best shot. And every day in every way, SCO's claims are getting smaller and smaller.

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

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

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP, INC.,

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant.
MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS OR
TO STAY COUNT TEN
OF PLAINTIFF IBM'S
SECOND AMENDED COUNTER-
CLAIMS AGAINST SCO


Case No. 2:03CV0294 DAK

Hon. Dale A. Kimball

Magistrate Judge Brooke Wells

Plaintiff/Counter-Defendant The SCO Group, Inc. ("SCO"), by and through undersigned counsel, hereby submits its Memorandum in Support of its Motion to Dismiss or Stay Count Ten of Counter-Plaintiff IBM's Second Amended Counterclaims Against SCO.

INTRODUCTION

On March 29, 2004, Defendant/Counter-Plaintiff International Business Machines Corp. ("IBM") filed its "Second Amended Counterclaims Against SCO." In Count Ten of that pleading, IBM added an entirely new claim seeking a declaratory judgment "that IBM does not infringe, induce infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in UNIX are invalid and unenforceable." ¶ 173. In other words, IBM is seeking to declare that a person or entity using Linux does not infringe upon SCO's copyrights and that some or all of SCO's copyrights are invalid or unenforceable. This precise issue will be litigated in a case filed by SCO against AutoZone in federal district court in Nevada; a case filed prior to IBM filing its Tenth Counterclaim. See The SCO Group Inc. v. AutoZone, Inc., Case No. CV-S-04-0237-DWH-LRL (D. Nev. 2004). This newly added counterclaim raises issues separate and apart from the primary breach of contract and other direct claims and counterclaims in this case. [1] Given this fact, and to avoid multiple suits determining substantially similar issues, this Court should decline to exercise jurisdiction over and dismiss Counterclaim Ten. In the alternative, Counterclaim Ten should be stayed pending the outcome in the prior filed AutoZone case.

ARGUMENT

The federal declaratory judgment statute provides "[i]n a case of actual controversy within its jurisdiction . . . any court in the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201. While this statute vests the federal courts with power and competence to issue a declaration of rights, see Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962)(per curiam), the question of whether this power should be exercised in a particular case is vested in the sound discretion of the district courts. Id.; see also St. Paul Fire and Marine Ins. Co. v. Runyon, 53 F. 3d 1167, 1168 (10th Cir. 1995); Sierra Club v. Yeutter, 911 F.2d 1405, 1420 n.8 (10th Cir. 1990). Stated differently, "[t]he Declaratory Judgment Act was an authorization, not a command. It gave federal courts competence to make a declaration of rights; it did not impose a duty to do so." Public Affair Assoc. v. Rickover, 369 U.S. 111, 112 (1962). Accordingly, any review of this Court's decision to abstain from exercising federal declaratory judgment jurisdiction is limited to deciding whether the court abused its discretion. Runyon, 53 F. 3d at 1168.

Count Ten Raises Issues That Are Not At Issue Here And That Are
Redundant of Those Presented In A Prior Filed Action and Therefore
Should Be Dismissed or Stayed.

The only copyright claim SCO has asserted against IBM is primarily for IBM's continuing use of AIX and Dynix after SCO terminated IBM's UNIX licenses. See Second Amended Complaint, Count V. The Second Amended Complaint, however, does not contain a claim against IBM for copyright infringement arising out of its use, reproduction or improvement of Linux. With SCO's Second Amended Complaint being the final amendment and not containing a claim for infringement arising out of IBM's Linux Activities, the need for IBM's Tenth Counterclaim seeking such a declaratory judgment is nil.

Although SCO has not sued IBM for copyright infringement arising out of "IBM's use, reproduction and improvement of Linux" (¶171), IBM's Tenth Counterclaim nonetheless seeks a "Declaratory Judgment of Noninfringement of Copyright" arising out of IBM's Linux activites. (¶ 173). However, as IBM acknowledges in its counterclaim, SCO filed an earlier copyright action arising from another company's similar act of using Linux. (¶¶ 79-80). This earlier filed copyright claim by SCO against another user of Linux implicates the same question presented by IBM's counterclaim: Whether Linux infringes SCO's copyrights? Indeed, as detailed below, that case also will determine the enforceabaility of SCO's claims of infringement arising from the use of Linux, including the enforceability of SCO's copyrights. Moreover, the precise issue of copyright infringement arising from the use of Linux is the sole issue in that case, unlike here, where there exist many complex claims. Under these circumstances, this Court should dismiss or stay Count Ten of IBM's Second Amended Counterclaims.

In the AutoZone case referred to in IBM's Second Amended Counterclaims, the issues of whether the use and reproduction of Linux infringes SCO's copyrights is squarely at issue. A copy of the Complaint in that action is attached as Exhibit A (of which this Court can take judicial notice). [2] In that case, SCO has alleged that AutoZone "has infringed and will continue to infringe SCO's copyrights in and relating to Copyrighted Materials by using, copying, modifying, and/or distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted Materials in connection with its implementations of one or more versions of the Linux operating system, inconsistent with SCO's exclusive rights under the Copyright Act." AutoZone Complaint, ¶21. Thus, in defending against a claim of infringement based on its use of Linux, AutoZone will be litigating the same issues that IBM seeks to inject in this case through Count Ten. [3]

Determining in this case the enforceability of SCO's copyrights and whether Linux infringes SCO's copyrights at the same time the issue is being litigated in the federal court in Nevada would entail unnecessary duplication of judicial efforts and run the risk of varying adjudications. With an actual case or controversy regarding whether Linux infringes upon SCO's copyrights pending in another courthouse, this Court should dismiss Count Ten or stay it until the Nevada court has resolved the issue of whether use of Linux infringes SCO's copyrights. Certainly, two federal courts should not simultaneously be determining whether the same copyrights are infringed. This is precisely why federal courts, as noted above, have discretion to entertain declaratory judgment requests. Here, with the plethora of complex issues already pending in this action, this Court should exercise its discretion on this declaratory judgment claim and dismiss Count Ten.

If this Court is inclined to retain jurisdiction over Count Ten, then it should stay the action pending the outcome of the previously filed Nevada action. The stay that SCO seeks here is virtually identical to that sought in Apex Hosiery Co. v. Knitting Machines Corp., 90 F. Supp. 763 (D. Del. 1950). In that case, Apex brought suit against Knitting Machines for a declaratory judgment on the validity of certain patents. The federal court noted that there was a prior filed suit already pending against another user of similar machinery where the validity of the patents would be heard. Noting that "the needless and burdensome trouble and expense of litigating two identical suits at the same time and at different places [could] be obviated," the court ruled that the Apex case should be stayed. Id. These same issues appear here and compel that IBM's later filed, redundant claim be stayed.

CONCLUSION

Count Ten presents issues already before another federal court, and, on that basis, should be dismissed or, at a minimum, stayed pending the outcome of the prior filed AutoZone case pending in Nevada.

DATED this 23rd day of April, 2004.

  Respectfully submitted,

By: ____[signature]_____
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
David K. Markarian

Counsel for Plaintiff/Counterclaim defendant


  1. These copyright claims, likewise, have nothing to do with the patent counterclaims, which are separate and apart from all other claims in the case and therefore are the subject of a pending motion for separate trial.

  2. Federal Rule of Evidence 201; see also St Louis Baptist Temple, Inc. v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979)(holding that federal courts may take notice of proceedings in other courts, both within and outside of the federal judicial district if those proceedings have a direct relation to matters at issue). In addition, because IBM relied upon the AutoZone filing in the Second Amended Counterclaim, this Court may properly consider that Complaint filed in AutoZone in ruling on the motion to dismiss. GFF Corp. v. Associated Wholesale Grocers, Inc., 103 F.3d 1381, 1384 (10th Cir. 1997)(stating, "[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.").

  3. The only issue that arguably would not be decided by the federal court in Nevada is whether IBM's improvements to Linux infringe upon SCO's copyrights. If this Count Ten was merely based on infringement arising from IBM's improvements to Linux, then SCO would not have sought dismissal or a stay. In fact, the issue of the impropriety of IBM's improvements to Linux is part of the basis for IBM's Ninth Counterclaim, also titled "Declaratory Judgment of Noninfringement of Copyrights," which arises out of IBM's distribution of AIX and Dynix. (¶ 165). SCO did not move to dismiss or stay that count.


  


SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text | 411 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here please
Authored by: PJ on Monday, May 03 2004 @ 03:33 PM EDT
Please put typos and errors here, so I can find them quickly. Thank you.

[ Reply to This | # ]

SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
Authored by: tizan on Monday, May 03 2004 @ 03:37 PM EDT

So if Baystar think that will fly ...then they should invest money in me too...
I sure can fly ... 20 millions please ....

How come fools always invest in others and not people like me...I'm honest
..you'll lose your 20 millions with me...no shooting of my mouth etc...what more
do you
want ?



---
tizan: Knowledge is shared

[ Reply to This | # ]

SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
Authored by: kenryan on Monday, May 03 2004 @ 03:45 PM EDT
I would *dearly* love to see a hearing transcript where a SCO lawyer attempts to
explain to a judge, if the only issue is IBM continuing to do AIX work after
their license was terminated, just what their license was terminated *for*...


---
ken
(speaking only for myself)

[ Reply to This | # ]

Re: What does that tell you? Well, they want to corner USERS on infringement (afraid of IBM)!
Authored by: Anonymous on Monday, May 03 2004 @ 03:47 PM EDT
RE: Pj's statement as follows: "The only copyright infringement claim they
assert against IBM is for using and distributing AIX and Dynix after SCO
"terminated" IBM's license, a termination that Novell told us they
overruled. That's it, folks. What does that tell you"?

I think that they are pulling all infringement GUNS back and wanting to use that
amunition on LINUX USERS in direct battle with them to crank up the effect of
their FUD.

If AutoZone is able to get their stay pending outcome of IBM, Novell, Red HAT...
then, SCO has no ammo or guns to point at anyone and there goes the McBride
projected revenue stream... I'll bet this action is the result of BAYSTAR
meetings (but Baystar will deny it)!

[ Reply to This | # ]

I'm confused
Authored by: Anonymous on Monday, May 03 2004 @ 03:48 PM EDT
Do I have this right? SCO has dropped all claims against IBM, except the one
about AIX being used after being "terminated"? If so, SCO's management
should do jail time. I must be missing something.

[ Reply to This | # ]

New Links and OT Discussions
Authored by: Anonymous on Monday, May 03 2004 @ 03:55 PM EDT
Please reply to this message with new links of interest to Groklaw readers.
This makes it easy to find them. Please try to use the HTML Formatted mode to
make it easy to click on a link and follow it directly to the article of
interest.

[ Reply to This | # ]

Wall Street obviously thinks it's all baloney
Authored by: Anonymous on Monday, May 03 2004 @ 03:57 PM EDT
I loved the bit in the article that where a wall street guy says they're
upgrading away from Sun to Linux. How humiliating for Sun: they always regard
themselves as the quality end of the market that people upgarde to. Couldn't
happen to a nicer company.

[ Reply to This | # ]

Further Grounds?
Authored by: SkArcher on Monday, May 03 2004 @ 03:57 PM EDT
This effectively admits that IBM have no infringed upon any Unic IP rights with
Linux. Is there any chance of further charges against SCO by IBM for
anti-competitive practices a la the Red Hat case, as IBM are evidently a Linux
company (see the IBM adverts) in competition with external Unices.

---
irc.fdfnet.net #groklaw

[ Reply to This | # ]

The real IP "problem" with Linux
Authored by: AdamBaker on Monday, May 03 2004 @ 03:58 PM EDT
The guy from SAP does have a valid point although he possibly hasn't worked out
what it is. There is one specific aspect of IP law that we all know is a problem
for open source - patents.

Even if something was implemented in Linux first, if someone later takes out a
patent on the idea and the patent office fail to notice the prior art the owner
of the patent can then start suing the author of the code. The claim would be
winnable if the author could afford to go to court but patent cases cost so much
to defend - even for the easy win cases that if the patent holder agrees to drop
the case in exchange for the code being pulled the author has no option but to
agree. That is why patents are the next battleground.

[ Reply to This | # ]

SAP and FOSS
Authored by: Carlo Graziani on Monday, May 03 2004 @ 04:01 PM EDT
Kagermann can't be as ambivalent about open source as he seemed in this interview. SAP hass jumped into MySQL with both feet: See this.

Maybe it's just standing next to Michael Dell that made him temporarily stupid.

[ Reply to This | # ]

PJ - Was that motion practice or motion sickness?
Authored by: Anonymous on Monday, May 03 2004 @ 04:06 PM EDT
this whole case is becoming more convoluted than my ex-wife's delusions. (and i
didn't think that was possible. hehehee) hmmmmm...... maybe they're getting
their ideas from her. lol
anyway, if SCO is only claiming that IBM is continuing to distribute AIX and
DYNIX in disreguard to SCO's termination (?) of their license to do so, it seems
to me (IANAL) that SCO is now saying that IBM hasn't done anything wrong. so
wouldn't that mean that SCO had no basis for terminating their license to begin
with? and assuming that is true, then shouldn't the judge dismiss this case w/
prejudice, and allow the countersuits to go ahead and wipe SCO of the face of
the planet? or does that only occur in a perfect world? then again, in a perfect
world, this wouldn't have happened. well, i guess now that brain is numb from
trying to reason this all out, i can go mow the lawn.

[ Reply to This | # ]

    SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
    Authored by: Captain on Monday, May 03 2004 @ 04:11 PM EDT
    Excellent article PJ.

    [ Reply to This | # ]

    and why did they revoke the license?
    Authored by: Anonymous on Monday, May 03 2004 @ 04:13 PM EDT
    They can't revoke the license without reason.

    They revoked the license because IBM contributed code, that they owned because
    it was derivative of their code, to Linux.

    Their logic only works if you ignore the reason they revoked the license in the
    first place.

    Is it really that simple or am I missing something?

    [ Reply to This | # ]

    "Darlin, I shrunk the lawsuit" ;-D
    Authored by: cybervegan on Monday, May 03 2004 @ 04:14 PM EDT
    "And every day in every way, SCO's claims are getting
    smaller and smaller."

    Love it - how long before it's completely vapourised?

    Hey Darl, how's it feel to be known as a paper tiger? You
    don't need body-guards, you need a fire-extinguisher!
    (Make sure it's not a water-based one, though).

    -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

    [ Reply to This | # ]

    Dumb Questions (I ask a lot of these)
    Authored by: DaveAtFraud on Monday, May 03 2004 @ 04:15 PM EDT
    First the SCOflaws say that IBM made illegal contributions to Linux that
    disclosed SCO trade secrets. In punishment, SCO pulled IBM's license to
    distribute AIX but, low and behold, there were no trade secrets disclosed. Then
    the SCOflaws claimed that IBM made illegal contributions to Linux that violated
    SCO copyrights. Now, low and behold, SCO says, "Just kidding. There are
    no IBM copyright violations." Have the SCOflaws just admitted to
    improperly revoking IBM's Unix license for AIX? Likewise, what is left as a
    basis for their case against IBM? If IBM didn't give away their trade secrets
    and didn't violate their copyrights, what is left as a basis for suing IBM? It
    appears that SCO's suit comes down to suing IBM because IBM chose to make
    contributions to Linux that helped make Linux competitive with Unixware.

    Note that I'm disregarding a number of details like SCOG may not own the
    copyrights to begin with and that Novell waived SCO's actions, etc. Even if by
    some stretch of the imagination SCO were to somehow own the Unix copyrights,
    this filing implies that nothing IBM has done is wrong.

    ---
    Quietly implementing RFC 1925 wherever I go.

    [ Reply to This | # ]

    SAP is a MySQL Strategic Alliance Partner
    Authored by: Stefan2100 on Monday, May 03 2004 @ 04:19 PM EDT
    The CEO of SAP, Mr Henning Kagermann, ought to check his partnership list, since MySQL, the leading Open Source SQL database vendor, is on that list.

    At least MySQL seem to be happy with that partnership, since they advertise it on several places on their company site:
    SAP is a MySQL Strategic Alliance Partner
    SAP is a featured partner on the MySQL Partner Solutions page
    Press release from last year: M ySQL AB and SAP AG Partner to Bring New Open Source Database Technologies to the Enterprise

    [ Reply to This | # ]

    Just when you thought...
    Authored by: lightsail on Monday, May 03 2004 @ 04:25 PM EDT
    TSG could not act dumber, TSG finds a new way to shoot its own foot!

    [ Reply to This | # ]

    OT: Stock
    Authored by: red floyd on Monday, May 03 2004 @ 04:25 PM EDT
    After spending most of the after noon below 6.00, SCOX made a small surge at
    the very end of the trading day to close at 6.

    Anyone want to place bets on 5.00, 4.00, 3.00, etc?

    ---
    The only reason we retain the rights we have is because people *JUST LIKE US*
    died to preserve those rights.

    [ Reply to This | # ]

    • OT: Stock - Authored by: red floyd on Monday, May 03 2004 @ 04:26 PM EDT
    • OT: Stock - Authored by: Anonymous on Monday, May 03 2004 @ 05:10 PM EDT
      • OT: Stock - Authored by: Anonymous on Monday, May 03 2004 @ 05:33 PM EDT
    Proprietary vs Open IP....
    Authored by: eamacnaghten on Monday, May 03 2004 @ 04:26 PM EDT
    It makes me angry when I hear people say that Open Source developers are more
    likely to be guilty of piracy than proprietary software companies.

    I am a developer, and I have worked for both proprietary software companies and
    have been involved in open source projects.

    In ALL proprietary projects IP was stolen, and always by the orders of senior
    management, usually the CEO or equivalent.

    I have never known IP to be stolen in an open source project.

    The problem with proprietary comapnies is two fold, first pressure is on in
    proprietary projects to get the product out spending as little money as
    possible, and that "people will not get angry at what they don't
    know...". The second is that proprietary apps are closed, and it is very
    difficult to know if there is anything stolen in there or not. In short -
    temptation is there and is always (in my experience) yielded to.

    Open source projects differ firstly in that they are - well - open - for all to
    see, so that only a complete idiot would put stolen stuff there. Also as open
    source projects build on top of other open source projects piracy is not
    neccessary to get the project out.

    I do not know where the concept that proprietary software companies respect IP
    more than free software developers (strike that, I actually do, from FUD from
    various people... ) but the reality is that there is no group of people I know
    of that respects IP more than the Open Source Development community.

    [ Reply to This | # ]

    Fat lady
    Authored by: capitalist_pig on Monday, May 03 2004 @ 04:28 PM EDT
    Tells me that the Fat Lady is taking a deep breath...

    [ Reply to This | # ]

      No claims, nothing gets resolved ...
      Authored by: dkpatrick on Monday, May 03 2004 @ 04:34 PM EDT
      If SCO continues to back off on its claims against IBM, only IBM gets an
      immediate benefit. The issue of IP, copyrights, constitionality of GPL, etc.,
      won't get litigated. It begins to look like SCO got the tiger by the tail, wants
      to let go, so it can beat up on the mice in the jungle. The presumption is that
      Autozone, et. al., will be unable to mount the gorilla defense of the Nazgul.
      That leaves SCO (Microsoft?) to dispense FUD until the money runs out.

      ---
      "Keep your friends close but your enemies closer!" -- Sun Tzu

      [ Reply to This | # ]

      Legally, can this fly?
      Authored by: Anonymous on Monday, May 03 2004 @ 04:37 PM EDT
      So, umm, can they actually get away with something like this? Spend a year
      saying one thing, in their filings, in their statements to the court, and in the

      press, and then withdraw the claim before it is adjuticated because they are
      likely to lose it?

      Obviously, they shouldn't, but what is the legal precedent for this sort of
      thing.

      [ Reply to This | # ]

      They lied to one judge or another
      Authored by: Anonymous on Monday, May 03 2004 @ 04:38 PM EDT
      in the RH case they said that the IBM case would resolve all copyright
      infringement issues with Linux. Now they are saying that it isn't about
      copyright at all, and that the "existing" AutoZone case will solve
      them. Is this some kind of legal hot potato game? "case N: No judge,
      please dismiss or stay these claims because case N+1 will resolve them. case
      N+1: please dimiss or stay these claims because case N+2 will resolve them.
      ..." Meanwhile they talk trash is the trade magazines, destroying people's
      good names.

      [ Reply to This | # ]

      Does SCOX hold the rights to time travel as well?
      Authored by: seanlynch on Monday, May 03 2004 @ 04:40 PM EDT

      How can this case be about IBM's continued use of AIX after SCO has terminated their license?

      The SCO v. IBM case was launched in March of 2003, but the license wasn't terminated until June 16th of 2003!

      Checking the archives here on Groklaw, the dates are in IBM's amended counterclaims to SCO, as well as elsewhere. We can see that background point 57 says:

      "57. SCO has repeatedly made false public statements to the effect that it has the right and authority to revoke, and has effectively revoked, IBM's right to use aix, IBM's version of Unix. For example, on May 12, 2003, Chris Sontag, a Senior Vice President of SCO, stated publicly, SCO has "the right to revoke the aix license", and on June 16, 2003, SCO announced publicly that it had "terminated IBM's right to use or distribute any software product that is a modification of or based on Unix System V source code". Indeed, in an interview given by SCO CEO Darl McBride to Peter Williams of vnunet.com on June 25, 2003, SCO falsely represented that its contractual rights to "pull" IBM's contract are "bullet-proof". SCO has made similarly false statements relating to Dynix. "

      (emphasis mine.)

      So how can this case be about something that didn't happen until after the case was filed?

      [ Reply to This | # ]

      Where's Enderle's Reply!
      Authored by: ricerocket on Monday, May 03 2004 @ 04:41 PM EDT
      I can't wait to read his next "SCO Should Win" article...

      [ Reply to This | # ]

      IBM case has no legs.
      Authored by: kberrien on Monday, May 03 2004 @ 04:43 PM EDT
      Ok, PJ, we're about done here. Start working on that book.. I got my sharpie
      ready!

      [ Reply to This | # ]

      Suing end-users....the SCO theory
      Authored by: Anonymous on Monday, May 03 2004 @ 04:43 PM EDT
      You think SCO is thinking that the Linux end-user is 'in possession of stolen
      [IP] property' and therefore 'guilty'. I mean in the sense that I acquire a
      bicycle (either as gift or bought) and it turns out to be stolen, the police can
      arrest me!?! Is that where SCO is going with this? Is that the real smoke in
      this FUD campaign?

      Does IP law have a similar effect - is there a 'possession of stolen IP
      property' aspect here that would affect end-users? Or is SCO trying to re-write
      that part of IP law to be equal to or similar to that of (not certain of the
      term) regular property....?

      [ Reply to This | # ]

      SCO FUD still in the air
      Authored by: Anonymous on Monday, May 03 2004 @ 04:44 PM EDT
      After having read this longed-named motion, I can still
      notice that FUD is everywhere between the lines...
      SCO never says anything with specificity (how strange is
      that...)

      Example:

      "The only copyright claim SCO has asserted against IBM
      is primarily for IBM's continuing use of AIX"

      > And several months later, we'll hear something like:
      "Nah, you misunderstood your honor! We said PRIMARILY,
      but there is this other stuff also... {present new theory} Can
      we have more time please?"




      [ Reply to This | # ]

      SCO Falsely Terminated IBM's License
      Authored by: dmscvc123 on Monday, May 03 2004 @ 04:45 PM EDT
      "Through contributing AIX source code to Linux and using UNIX methods to
      accelerate and improve Linux as a free operating system, with the resulting
      destruction of UNIX, IBM has clearly demonstrated its misuse of UNIX source code
      and has violated the terms of its contract with SCO."
      http://www.theage.com.au/articles/2003/06/17/1055615761693.html

      So that's not true, SCO is the who violated the terms of the alleged contract
      between SCO and IBM.

      [ Reply to This | # ]

      Am I getting this right?
      Authored by: Anonymous on Monday, May 03 2004 @ 04:48 PM EDT
      SCO have accused IBM of infringing their copyright by distributing Linux under
      the GPL.

      IBM have in turn accused SCO of infringing their copyright by distributing GNU
      software without adhering to the terms of the GPL.

      SCO has now withdrawn its claim against IBM.

      IBM's counterclaim is independent of this and still stands.

      SCO have also accused AutoZone of infringing their copyright of what is
      effectively the same code.

      SCO want to continue with the case against AutoZone. If it wins it will sue IBM
      again together with the rest of the world.

      I seem to be losing the plot here, surely the suitcase with the offending code
      should have been handed over to IBM by now, presumably it will now have to go to
      AutoZone.

      Am I getting this right?

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: Anonymous on Monday, May 03 2004 @ 04:49 PM EDT
      Sounds to me like Darl may have a lawsuit against those MIT-type data miners
      they hired to scour the code bases. Where did those millions of lines of code
      come from?

      Hopefully, if they have any integrity whatsoever, all the industry pundits out
      there who backed SCO will resign their positions. I would say the same thing
      about SCO and company et al, but it is my opinion that they don't have any.

      [ Reply to This | # ]

      I would think upper management at SCO must be a bit worried about jail
      Authored by: Anonymous on Monday, May 03 2004 @ 04:54 PM EDT


      They just admitted that for the last year they have been coning and threatening
      the general public. They have even taken money for something they just admitted
      they don't own. Can you say false advertisement. If I were to run around telling
      everyone that I owned the patent to the gas motor and anyone who owned a car
      owned me money. Then, even went so far as to actually collect the money under
      false pretenses and no proof. Would I not eventually wind up in jail? This is
      not considering all the stock market effects as well.

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: rweiler on Monday, May 03 2004 @ 04:54 PM EDT
      It would be well not to get too excited. As near as I can tell, SCO's primary
      charge, that IBM breached their contract with SCO by contributing code from AIX
      and Dynix to Linux, is still intact. SCO pulled IBM's AIX license because of
      the breach of contract, not because of trade secret or copyright violation. The
      only thing that this really makes clear is SCO categorically states that users
      of IBM's SMP, NUMA, and JFS code are not at risk of being sued for copyright
      infringement. That's quite a concession, but it isn't quite the whole ballgame.

      ---
      Sometimes the measured use of force is the only thing that keeps the world from
      being ruled by force. -- G. W. Bush

      [ Reply to This | # ]

      What will be IBM's next step?
      Authored by: Anonymous on Monday, May 03 2004 @ 04:57 PM EDT
      For those who enjoy devising legal strategies, what do you think IBM's next step
      will be (other than the obvious "Do not stay or dismiss" motion?

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: Anonymous on Monday, May 03 2004 @ 05:19 PM EDT
      If I understand this correctly, SCOX is now saying:

      (1) SCO arbitrarily and unjustifably cancelled IBM's contract allowing IBM to
      distribute their versions of Unix (AIX and Dynix).

      (2) IBM ignored our action, saying it was arbitrary and unjustified.

      (3) We want $5 BILLION because they ignored us!

      That line of argument should go far!

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: Anonymous on Monday, May 03 2004 @ 05:21 PM EDT
      I am confused. What does SCO still have left on the table?

      [ Reply to This | # ]

      Maybe SCO outsources their legal work...
      Authored by: grubber on Monday, May 03 2004 @ 05:27 PM EDT
      Maybe SCO's lawyers don't speak English as a first language. If they do, they should hire a grammarian! Imagine this converstaion:

      John: Hey, Stan, I have a question for you.
      Stan: Go ahead.
      John: Whether Linux infringes SCO's copyrights?
      Stan: Huh?

      I quote SCO's memo:

      This earlier filed copyright claim by SCO against another user of Linux implicates the same question presented by IBM's counterclaim: Whether Linux infringes SCO's copyrights?
      That's not proper English. Either of the following would be OK:
      • The question is: Does Linux infringe SCO's copyrights?
      • The question is whether Linux infringes SCO's copyrights.
      Now the real question is: Whether IBM claims slander?

      [ Reply to This | # ]

      Has SCO read their own complaint?
      Authored by: GLJason on Monday, May 03 2004 @ 05:33 PM EDT
      See their second amended complaint:

      3. A variant or clone of UNIX currently exists in the computer marketplace called “Linux.” Linux is, in material part, based upon UNIX source code and methods.
      As such, the Linux 2.4.x and Linux 2.5.x and 2.6.x kernels are unauthorized derivatives of UNIX System V.
      6) c) c) incorporating (and inducing, encouraging, and enabling others to incorporate) SCO’s proprietary software into Linux open source software offerings.

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: Anonymous on Monday, May 03 2004 @ 05:37 PM EDT
      So what happens to those that bought a license from SCO?

      [ Reply to This | # ]

      What's it all about? - Then and now.
      Authored by: moogy on Monday, May 03 2004 @ 05:37 PM EDT
      SCOG is now saying that this case has nothing to
      do with "IBM's use, reproduction and improvement
      of Linux"

      Let's look at clips from their original filing.

      http://www.sco.com/scosource/complaint3.06.03.html
      ----
      Nature of This Action

      3. ...
      This case is, and is only, about the right of SCO not
      to have its proprietary software misappropriated and
      misused in violation of its written agreements and
      well-settled law. ...

      4. As set forth in more detail below, IBM has breached
      its own obligations to SCO, induced and encouraged
      others to breach their obligations to SCO, interfered
      with SCO?s business, and engaged in unfair competition
      with SCO, including by

      a) misusing and misappropriating SCO?s proprietary
      software;

      b) inducing, encouraging, and enabling others to misuse
      and misappropriate SCO?s proprietary software; and

      c) incorporating (and inducing, encouraging, and
      enabling others to incorporate) SCO?s proprietary
      software into open source software offerings.

      ----
      Limitations of Linux Before IBM?s Involvement

      86. It is not possible for Linux to rapidly reach UNIX
      performance standards for complete enterprise
      functionality without the misappropriation of UNIX code,
      methods or concepts to achieve such performance, and
      coordination by a larger developer, such as IBM.

      ----
      IBM?s Scheme

      93. IBM, however, was not and is not in a position legally
      to ?open source any part of AIX that the Linux community
      considers valuable.? Rather, IBM is obligated not to open
      source AIX because it contains SCO?s confidential and
      proprietary UNIX operating system and, more importantly,
      the code that is essential for running mission critical
      applications (e.g., wire transfers) for large businesses.

      94. Over time, IBM made a very substantial financing
      commitment to improperly put SCO?s confidential and
      proprietary information into Linux, the free operating
      system. ...

      That team of IBM programmers is improperly extracting
      and using SCO?s UNIX technology from the same building
      that was previously the UNIX technology center.

      96. Again, ?IBM?s AIX contributions? consisted of the
      improper extraction, use, and dissemination of SCO?S UNIX
      source code and libraries, and unauthorized misuse of
      UNIX methods, concepts, and know-how.

      99. The only way that the pathway is an ?eight-lane
      highway? for Linux to achieve the scalability, SMP support,
      fail-over capabilities and reliability of UNIX is by the
      improper extraction, use, and dissemination of the
      proprietary and confidential UNIX Software Code and
      libraries.

      101. On information and belief, IBM has knowingly
      induced, encouraged, and enabled others to distribute
      proprietary information in an attempt to conceal its
      own legal liability for such distributions:

      102. IBM is affirmatively taking steps to destroy all
      value of UNIX by improperly extracting and using the
      confidential and proprietary information it acquired
      from UNIX and dumping that information into the open
      source community.

      ----
      THIRD CAUSE OF ACTION (Interference with Contract)

      125. IBM, directly and through its Linux distribution
      partners, has intentionally and without justification
      induced SCO?s customers and licensees to breach their
      corporate licensing agreements, including but not limited
      to, inducing the customers to reverse engineer, decompile,
      translate, create derivative works, modify or otherwise
      use the UNIX software in ways in violation of the license
      agreements. These customers include Sherwin Williams,
      Papa John?s Pizza, and Auto Zone, among others. The
      licensees include Hewlett-Packard, Fujitsu, NEC and
      Toshiba, among others.


      ----
      FOURTH CAUSE OF ACTION (Breach of Contract)

      [Gee, we finally get to the contract dispute part]

      135. Notwithstanding these provisions, IBM has
      subjected SCO?s 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.
      SCO, therefore, has terminated IBM?s license to use
      UNIX-based software products.

      ----

      As PJ would say... Well there you are. In their
      original filing they say they terminated IBM's
      license because they contributed SCOG's UNIX to
      Linux. But now they say it's only about an
      infringemnet claim AFTER they terminated IBM's
      license.

      This is the ultimate in judicial circular reasoning.

      c) incorporating (and inducing, encouraging, and
      enabling others to incorporate) SCO?s proprietary
      software into open source software offerings.

      Just what could they be refering to?

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

      [ Reply to This | # ]

      SCO can't find copied code (DUH)
      Authored by: Anonymous on Monday, May 03 2004 @ 05:40 PM EDT
      >>> For an entire year, SCO has been in discovery, with access to AIX
      and Dynix, and they already had System V code and full access to publicly
      accessible Linux code, and they failed to find any copyright infringement on
      IBM's part other than the contested license issue. Could there be a more ringing
      endorsement of Linux's purity than that? <<<

      I doubt there is any improper code in the kernel, BUT the fact that they can't
      find something is NO endorsemnt.It's just more confirmation that they don't have
      a clue where or how to look. Im sure they have some soon-to-be-unemployed
      analyst sorting through piles of DIFF reports (wouldn't want to use any of that
      OPEN source code to compare code trees now, would we????) frantically trying
      to figure out how to produce "proof" of the "Proceedures and
      process'" that are BAD. And every 3 days someone is telling him to do it
      all again (in a slighly different direction), cause those nasty IBM lawyrers
      made us say "never-mind" again...

      [ Reply to This | # ]

      How stupid
      Authored by: Anonymous on Monday, May 03 2004 @ 05:41 PM EDT
      "How stupid would you have to be to steal someone's code and try to put it
      in Linux?"

      How true.

      [ Reply to This | # ]

      TSG incorrectly describes facts
      Authored by: AllParadox on Monday, May 03 2004 @ 05:47 PM EDT
      For me, the most controversial part is the allegation by TSG that IBM's #10 is
      an "entirely new" issue.

      This is simply not correct. TSG's initial petition in this case indirectly
      suggests that there are copyright infringement issues. Although thin, I think
      it raised the issue to a sufficient level to justify TSG presenting evidence at
      trial, up to the time that they filed the Second Amended complaint. Mr.
      McBride, and TSG's press releases, strongly state that SCO v. IBM is about
      copyright issues, not just contract issues.

      The driving force behind IBM's cross-claim for a declaratory judgment on this
      topic is that TSG first raised it, then dropped it. IBM justifiably wants this
      issue permanently resolved.

      TSG is perfectly disingenuous in filing the claim initially, thus preventing IBM
      from needing to file a cross-claim on the issue, then dropping the claim, thus
      forcing IBM to file their claim, then complaining that IBM filed the claim
      -after- TSG filed suit against AutoZone.

      Incredible!

      ---
      All is paradox: I no longer practice law, so this is just another layman's
      opinion. For a Real Legal Opinion, buy one from a licensed Attorney

      [ Reply to This | # ]

      • OT - Authored by: alisonken1 on Monday, May 03 2004 @ 07:42 PM EDT
        • OT - Authored by: AllParadox on Tuesday, May 04 2004 @ 09:09 AM EDT
      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: Anonymous on Monday, May 03 2004 @ 05:47 PM EDT
      "The only copyright claim SCO has asserted against IBM is primarily for
      IBM's continuing use of AIX and Dynix after SCO terminated IBM's UNIX licenses.
      See Second Amended Complaint, Count V. The Second Amended Complaint, however,
      does not contain a claim against IBM for copyright infringement arising out of
      its use, reproduction or improvement of Linux. With SCO's Second Amended
      Complaint being the final amendment and not containing a claim for infringement
      arising out of IBM's Linux Activities, the need for IBM's Tenth Counterclaim
      seeking such a declaratory judgment is nil." SCOG filing

      "After the past year's media circus, you have it straight from the horse's
      mouth" PJ's comment

      I will nitpick PJ to death, and say that this particular horse, assuming that it
      was a horse, always seemed to us to be talking out of its behind rather than its
      mouth.

      The horse in question is acting like a chicken: not just any chicken, but a
      chicken which thought it could fly, talked trash to a screaming eagle from the
      center of the courtyard, and now seeks to escape the eagle's shadow by flapping
      its short wings and hopping to the shelter of the barn as fast as it can.

      [ Reply to This | # ]

      PJ: request for clarification
      Authored by: elcorton on Monday, May 03 2004 @ 05:53 PM EDT
      > They do claim in footnote 3 that they are litigating
      > against IBM regarding its improvements to Linux, in a claim
      > that "arises out of IBM's distribution of AIX and Dynix."
      > But if you put that sentence together with the above, you
      > see that they are only talking about post-"termination" use
      > and distribution of AIX and Dynix. I know. It makes no
      > sense.

      The contract case is based on the theory that IBM is barred by contract, not
      copyright, from contributing anything to Linux that it ever distributed with
      AIX or Dynix. It doesn't matter whether AIX or Dynix was infringing SCO's
      purported copyrights at the time. So I don't understand what your'e saying
      here. This motion doesn't appear to me to narrow the scope of SCO's case
      any more than the 2nd amended complaint already did (which was a lot.)

      [ Reply to This | # ]

      Error of Biblical Proportions
      Authored by: Dan Lewis on Monday, May 03 2004 @ 05:56 PM EDT

      ... do not let your left hand know what your right hand is doing, so that your giving may be in secret. (Mt. 6.3)

      It seems to me like SCO was trying to play 3-card Monty with these 5 lawsuits (not a good idea). It makes me wonder if it's the same personnel in the legal firms working on every suit. It is hard to discern a strategy in this kind of blunder.

      [ Reply to This | # ]

      Justification for termination?
      Authored by: Anonymous on Monday, May 03 2004 @ 06:00 PM EDT
      What justification did they have then for terminating
      IBM's license?

      [ Reply to This | # ]

      Has SCO read their own complaint?
      Authored by: GLJason on Monday, May 03 2004 @ 06:03 PM EDT
      They may not be suing IBM yet for thier Linux use in particular, but it sure looks like they are saying Linux is an unauthorized derivative. They also say that IBM is a major user of Linux and is basing a large part of their business on Linux services now. Seeing as SCO has already sued another Linux end user, I think IBM has the right to defend itself. If nothing else, they should be able to defent themselves against these claims and get the court to say that there is nothing in Linux that belongs to SCO, therefore IBM didn't put anything there. See their second amended complaint:

      3. A variant or clone of UNIX currently exists in the computer marketplace called “Linux.” Linux is, in material part, based upon UNIX source code and methods.
      4) ... As such, the Linux 2.4.x and Linux 2.5.x and 2.6.x kernels are unauthorized derivatives of UNIX System V.
      6) c) incorporating (and inducing, encouraging, and enabling others to incorporate) SCO’s proprietary software into Linux open source software offerings.
      75) Linux is an operating system variant or clone of UNIX System V Technology.
      79) As a result, a very significant amount of UNIX protected code and materials are currently found in Linux 2.4.x, Linux 2.5.x and Linux 2.6.x releases in violation of SCO’s contractual rights and copyrights.
      97. The only way that the pathway is an “eight-lane highway” for Linux to achieve the scalability, SMP support, fail-over capabilities and reliability of UNIX is by the improper extraction, use, and dissemination of the proprietary and confidential UNIX source code, derivative works and methods.
      110. IBM is affirmatively taking steps to destroy all value of UNIX by improperly extracting and using the confidential and proprietary information it acquired from UNIX and dumping that information into the open source community. As part of this effort, IBM has heavily invested in the following projects to further eliminate the viability of UNIX:
      a)The Linux Technology Center was launched in 2001 with the intent and foreseeable purpose of transferring and otherwise disposing of all or part of UNIX, including its derivative works, modifications and methods, into an open source Linux environment;
      b) The IBM Linux Center of Competency was launched to assist and train financial services companies in an accelerated transfer of UNIX to Linux with the advertised intent and foreseeable purpose of transferring and otherwise disposing of all or part of UNIX, including its derivative works, modifications and methods into open source.
      c)A carrier-grade Linux project has been undertaken to use UNIX source code, derivative works, modifications and methods for the unlawful purpose of transforming Linux into an enterprise-hardened operating system;
      d) A data center Linux project has been undertaken to use UNIX source code, derivative works, modifications and methods for the unlawful purpose of transforming Linux into an enterprise-hardened operating system; and
      109. But for IBM’s coordination of the development of enterprise Linux, and the misappropriation of UNIX to accomplish that objective,
      122) ... to open source development of Linux and by using UNIX development methods in making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product.
      153) ... transferring portions of the Software Product (including System V source code, modifications, derivative works and methods based thereon),
      155) ... making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product
      184) a) Misappropriation of source code, methods, trade secrets and confidential information of plaintiff;
      184) e) Contribution of protected source code ...

      [ Reply to This | # ]

      SCO will continue the public FUD
      Authored by: ChocoNutDancer on Monday, May 03 2004 @ 06:05 PM EDT
      I suspect that SCO will continue with their anti-Linux PR campaign and continue
      to claim publicly that IBM put SCO code in Linux. Despite that SCO has dropped
      the claim that the GPL is unconstitutional in their lawsuit they continue to
      claim it publicly. I fear they will also continue to publicly claim copyright
      infringement even though they have now dropped that claim in their lawsuit.

      Someone (Novell and/or IBM) needs to sue them to put up or shut up. They
      shouldn't be allowed to continue to say these things publicly while at the same
      time drop the same claims from their lawsuits.

      [ Reply to This | # ]

      A bit OT .. but this is most curious
      Authored by: Anonymous on Monday, May 03 2004 @ 06:10 PM EDT
      Crusing about the net today, I ran into this news blurb. Its about Bill Gates and a hugh $800,000 fine he recently agreed to for violations of investment rules.

      "The agreement settles a Justice Department lawsuit filed Monday in U.S. District Court in Washington contending Gates should have complied with investment notification rules because he intended to participate in the company's business decisions."

      I shutter to think of the results to the public of Gates "participating in business decisions". It would be very interesting to know just what companies are now subject to this condition. They would bear close watching.

      [ Reply to This | # ]

      Judge Kimball's courtroom...
      Authored by: trox on Monday, May 03 2004 @ 06:11 PM EDT
      Hearing on dismissing or staying count 10...

      Judge Kimball: So Mr. Heise what you're saying is that you have proof that AutoZone has violated your copyrights and you can prove this in the Nevada courts.

      Mr. Heise: Yes we can your Honor and that is why you should decide in our favor?

      Judge Kimball: Would yor evidence include the same copyright violation in Linux that you were court ordered to provide information for discovery in the case in my courtroom?

      Mr. Heise: Well your honer we decided it was not important to our case vs. IBM so we saved it for our case vs. Autozone....

      I can just see it now! :-)

      [ Reply to This | # ]

      Forced to remove code for IP claims
      Authored by: teknomage1 on Monday, May 03 2004 @ 06:27 PM EDT
      quote:
      "Like what? If software companies using open source were forced to
      extract code from their products because of an IP violation, 'then people like
      us will be extremely carefuly in using open source,' he says. Kagermann
      acknowledges his views on open-source and IP are influenced by the fact that SAP
      is Europe's largest commercial software company."

      First, judging from what has happened so far, there don't appear to be any such
      issues, just contract claims against anyone foolhardy enough to enter a
      contractual relationship with SCO. Is he predicting an IBM-related pulling out
      of code? Second, IP violations occur every day in the proprietary world, judging
      by the constant stream of lawsuits they file against each other. To pretend this
      is an issue that is Linux-specific is cynical or just wrong, depending on his
      motives and level of education. It could just be that his company is well-named.

      ------------------------------------------------------------
      I believe this was more talking about how certain companies producing networking
      appliances were not complying with the GPL so were faced with a choice of
      releasing their drivers or dropping the GPL'd components in the drivers.

      [ Reply to This | # ]

      IBM's Latham act claims
      Authored by: Jude on Monday, May 03 2004 @ 06:31 PM EDT
      Let's not forget that IBM has Lantham act claims against SCO for making
      false statements in public that were harmful to IBM's business.

      SCO has many times said in public that they had a two-pronged IP enforcement
      effort against Linux. One prong was the alleged IBM contract issue, and the other
      was the alleged "over a million lines" of code that had been copied from Unix.
      Darl describe this quite distinctly (and quite publicly) during his keynote address at
      CdExpo on 2003-11-18. Listen for yourself: There's No Free Lunch... or Free Linux

      SCO might not have any explicit Linux-related copyright claims in it's case against IBM,
      but IBM sure as heck has them in it's case against SCO.

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: Anonymous on Monday, May 03 2004 @ 06:32 PM EDT
      To say it clearly, I think you'd have to say: "Please dismiss this counterclaim, because if IBM wins it, and we think they will, then all our AutoZone and son of AutoZone end user lawsuits might die. The whole world will laugh at us, and besides, our case against IBM could blow up. Plus, it would kill our FUD. If you can't bring yourself to dismiss it, please stay it while we waste some more time in Nevada, so the real issues won't be litigated anywhere soon and we can threaten end users a little longer."

      I have to say, I much preferred Groklaw when it started out with serious, objective analysis of the facts. It's gradually deteriorated into an emotive soapbox. I would prefer a site that is informative without feeding the frenzy.

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: Anonymous on Monday, May 03 2004 @ 06:38 PM EDT
      SCO says:

      The only copyright claim SCO has asserted against IBM is
      primarily for IBM's continuing use of AIX and Dynix after
      SCO terminated IBM's UNIX licenses

      WTF does that mean: "only" and "primarily" are incoherent
      in this context. "Primarily" implies a primary and
      secondary (and maybe more) assertions; only denies the
      same.

      These guys are truly morons.

      [ Reply to This | # ]

      Looking Back
      Authored by: dmscvc123 on Monday, May 03 2004 @ 06:44 PM EDT
      Reading Darl's open letter that was written late last year it's interesting how
      much things have changed:
      "Since last March The SCO Group (“SCO”) has been involved in an
      increasingly rancorous legal controversy over violations of our UNIX
      intellectual property contract, and what we assert is the widespread presence of
      our copyrighted UNIX code in Linux. These controversies will rage for at least
      another 18 months, until our original case comes to trial." (McBride says
      the IBM case will settle the dispute over Unix - not AIX - copyrighted code in
      Linux)

      "At SCO we take the opposite position. SCO believes that copyright and
      patent laws adopted by the United States Congress and the European Union are
      critical to the further growth and development of the $186 billion global
      software industry, and to the technology business in general.
      In taking this position SCO has been attacked by the Free Software Foundation,
      Red Hat and many software developers who support their efforts to eliminate
      software patents and copyrights." (Yet SCO's principled stance against the
      GPL hasn't stopped them from distributing Samba)

      "Based on the views of the U.S. Congress and the U.S. Supreme Court, we
      believe that adoption and use of the GPL by significant parts of the software
      industry was a mistake." (I guess SCO doesn't count themselves with both
      Samba now and Linux before)

      SCO sure makes it sound like they want copyright cases not contract cases when
      you read the letter:
      http://www.sco.com/copyright/
      It's rather laughable how SCO has strained themselves to now say these aren't
      copyright cases.

      [ Reply to This | # ]

      SAP DB is open source
      Authored by: Anonymous on Monday, May 03 2004 @ 07:04 PM EDT
      It's funny that the CEO of SAP is stating his views about open source being
      possibly unsafe when his company has used it for ages and even supports its own
      OS project:

      http://www.sapdb.org/

      [ Reply to This | # ]

      SCO STILL HAS ONE VALID CLAIM
      Authored by: Anonymous on Monday, May 03 2004 @ 07:09 PM EDT
      PJ is always disparaging of SCO's claim that section 2.01 of the license
      agreement between AT&T and IBM provides an "easement" (as our dear
      friend
      Darl put it) into the intellectual property of Linux. In fact it does, in a way.

      Merely having the copyright and full title of ownership of code does NOT
      necessarily give you the right to publish it. Consider Peter Wright's Spycatcher

      novel. In this case someone who wrote a book about confidential security
      matters, who had the copyright to the text, was barred at least in some courts
      from publishing what he wrote: "The British government claims that ...
      whatever the book says, it is all CONFIDENTIAL and should not be published
      because Wright had a contractual obligation to his former employers." (The

      Observer, June22). It is the same argument here, and one which I believe can
      be tried by a court.

      [ Reply to This | # ]

      Sure SCO is not claiming a copyright violation by IBM. Read Para 79 of 2nd ammended complaint.
      Authored by: WayneStPaul on Monday, May 03 2004 @ 07:10 PM EDT
      After reading SCO's 2nd Amended Complaint and SCO's recent memorandum it is clear that SCO is claiming that IBM violated it's copyrights.

      From SCO's 2nd Amended Complaint: (numbers indicate paragraph numbers referenced in SCO's 2nd Amended Complaint .

      • (4)Gave away or disclosed proprietary UNIX source code and methods
      • (7)As a result of these breaches, SCO sent a notice of termination to Mr. Sam Palmisano....
      • (8)The termination notice was based, in part, on IBM’s self-proclaimed contributions of AIX source code to Linux, and use of UNIX/AIX methods for accelerating the development of Linux in contravention of IBM’s contractual obligations to SCO
      • (79)As a result, a very significant amount of UNIX protected code and materials are currently found in Linux 2.4.x, Linux 2.5.x and Linux 2.6.x releases in violation of SCO’s contractual rights and copyrights.

      I do not understand how they could expect to pass the laugh test with the statement The only copyright claim SCO has asserted against IBM is primarily for IBM's continuing use of AIX and Dynix after SCO terminated IBM's UNIX licenses while para 79 claims copyright violation by IBM.

      Now if SCO really is droping all claims of copyright violation of IBM placing copyrighted code within Linux, then I expect to see a request to file a 3rd ammended complaint removing these claims of copyright violation.

      Wayne
      IANAL

      [ Reply to This | # ]

      • Not quite - Authored by: Anonymous on Monday, May 03 2004 @ 09:48 PM EDT
        • Not quite - Authored by: Anonymous on Tuesday, May 04 2004 @ 08:23 AM EDT
      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: s21mag on Monday, May 03 2004 @ 07:14 PM EDT
      Correct me if I'm wrong, but didn't SCOG file this lawsuit prior to
      "revoking" IBM's licence, and then when IBM wouldn't play their game
      decided to revoke the licence, added the complaint that IBM is still
      distributing AIX and now they are removing thier original complaint which was
      their basis for revoking the licence in the first place?


      ---
      L. W. Yost


      Luck is when preparation meets opportunity.

      [ Reply to This | # ]

      What does SCOX have to prove?
      Authored by: Anonymous on Monday, May 03 2004 @ 07:16 PM EDT
      If I understand this, SCOX asserts that IBM's enhancements to Linux are derived
      from software that is controlled by a liscense between AT&T and IBM. They
      further assert that this liscense restricts IBM from making IBM's enhancements
      public through some kind of notion of drivative works independent of copyright.
      SCOX then claims themselves to be the successor's of interest in the above
      liscense. Assuming that this is really the nature of SCOX's suit my question is
      what has to happen for SCOX to win?

      At a bear minimum I think they have to convince the judge that:
      1. They are the party that can enforce the liscense and their right cannot be
      waived by Novell.
      2. The liscense restricts IBM from making derived works public.
      3. There is sufficient evidence to expect that a jury might be able to see that
      IBM did make derived works public.

      Item number 1 is not even straight forward but probably the least of SCOX's
      worries. In order to accomplish item 2 SCOX must reveal what they mean by
      derived works and be able show where in the liscense the criteria for being a
      derived work is spelled out beyond the usual definition. Furthermore, they must
      show how the requirement on derivative works applies under the $Echo newsletter
      explanation or show how that explanation does not apply. It's hard to see
      exactly how they accomplish item 3 until item 2 is answered, but it seems like
      it will involve "nonliteral copying" and something about sequence,
      organization, and whatever.

      My own personal feeling is that SCOX cannot accomplish any of these steps toward
      making their case, even to the extent that if we grant SCOX a large leeway on
      item 2 they still cannot have enough evidence to accomplish item 3. There
      appears to be no evidence of SYSV code in Linux so SCOX will have to be able to
      show how they can distinguish the "nonliteral" copying that is bad
      from innocent similarity. Then they have to demonstrate that there are
      sufficient examples of "nonliteral" copies to show there is a
      nontrivial offense.

      If this ever actually goes to trial, SCOX then has to explain all of this to a
      jury. In some earlier articles there was some speculation from Enderle that SCOX
      was going to rely on a technically illiterate jury to make all of this work, but
      how can that be? The jury is going to have to follow all of the mumbo jumbo and
      "expert testimony" about how code that is not the same is somehow
      derived from SCOX's code. The answer seems to be that SCOX will try to make this
      an emotional issue for the jury of the little guy being wronged by the big
      bully.

      The summary to all of this is that SCOX appears to be banking on a complete
      break down of the legal system.

      Bill Collier
      IANAL (obviously)

      [ Reply to This | # ]

      But Judge IBM is way to smart and knows about computers.
      Authored by: Anonymous on Monday, May 03 2004 @ 07:34 PM EDT
      I read this as saying that SCO is losing against IBM . So they want the judge
      let them settle a complex computer code/programing case against an auto parts
      company.

      SticK

      [ Reply to This | # ]

      SCOSource
      Authored by: Sparkchaser on Monday, May 03 2004 @ 08:14 PM EDT
      As SCO is claiming the case is not about SCO IP in Linux, and (in newspeak)
      never was...
      What, exactly, is SCO attempting to license in it's SCOSource charade?

      ---
      If at first you don't succeed, read the directions.
      If that doesn't work, blame somebody

      [ Reply to This | # ]

      OT: Discovery?
      Authored by: Anonymous on Monday, May 03 2004 @ 09:03 PM EDT
      I wonder when IBM is going to submit its memo concerning how SCO responded to
      the discovery orders. It has been several weeks now. Maybe SCO dropped
      everything on IBM the last day, and it was a ton of materials, and so it is
      taking IBM a long time to sort through it.

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: Anonymous on Monday, May 03 2004 @ 09:18 PM EDT
      When is the next court date?

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: Anonymous on Monday, May 03 2004 @ 09:23 PM EDT
      "SCO's memo in support of its motion to compel:"
      "It is undisputed that IBM created derivative works and modifications of
      UNIX System V known in the industry as "AIX". Plaintiff [ed:SCO]
      contends that IBM failed to treat AIX as required under the Software Agreement
      by, among other things, contributing source code and confidential methods for
      developing UNIX / AIX to Linux. This is a central issue in the case"
      (See bottom of page 4)

      "MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR TO STAY COUNT TEN OF
      PLAINTIFF IBM'S SECOND AMENDED COUNTER-
      CLAIMS AGAINST SCO":
      "The Second Amended Complaint, however, does not contain a claim against
      IBM for copyright infringement arising out of its use, reproduction or
      improvement of Linux.
      ... In fact, the issue of the impropriety of IBM's improvements to Linux is part
      of the basis for IBM's Ninth Counterclaim, also titled "Declaratory
      Judgment of Noninfringement of Copyrights," which arises out of IBM's
      distribution of AIX and Dynix. (¶ 165). SCO did not move to dismiss or stay that
      count. "


      Do those SCOundrels realize that the same judge has possession of both pieces of
      paper???

      AdultSupervision (not logged in)

      [ Reply to This | # ]

      How Can SCO Even Think They Have A Case?
      Authored by: dmscvc123 on Monday, May 03 2004 @ 09:30 PM EDT
      Reading what the copyright office has to say about derivative works, I don't see
      how SCO could assert a derivative works claim on Linux based on IBM's own work
      on Unix.
      http://www.copyright.gov/circs/circ14.pdf

      I can see how SCO can make a [bad] case of AIX being an unauthorized derivative
      work since SCO cancelled the Unix license (SCO tried to cancel it anyway), but I
      don't see how SCO can claim a derivative work of IBM's as their own - especially
      with SCO not disputing that IBM owns the copyrighted works in which derivative
      is based on.

      I guess an upside to this should a snowball survive hell and SCO win would that
      IBM could then claim ownership of Microsoft's OS since Microsoft and IBM joint
      ventured on OS/2 and then Windows came after that. However, to paraphrase Martha
      Stewart, SCO will not be exonerated of ridiculousness.

      [ Reply to This | # ]

      More Lies, Disinformation, and Misdirection -- Part Tres
      Authored by: Anonymous on Monday, May 03 2004 @ 09:52 PM EDT
      TSG has failed to comply with at two court orders, even after numerous
      time extensions, to identify with specificity the files and lines of SVRx
      source code in Linux.

      Now, TSG is covering up their failure. Lets hope the judge remembers and
      sees fit to punish TSG. Lets hope Redhat informs the judge in their suit.

      Given the chance in front of a jury TSG will constantly parade all their public
      statements before the jury.

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: bsm2003 on Monday, May 03 2004 @ 09:52 PM EDT
      Remember folk's SCO still cant show proof that they have a contract from Old SCO->Cladera->New SCO. Therefore No contract No right to enforce the contract.

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: blacklight on Monday, May 03 2004 @ 10:20 PM EDT
      Let's not be too hard on each other:

      (1)I am an Ivy Leaguer, so the expectation is that I can read and write.
      However, once in a while, I screw up on my typing. It's probably typical, but I
      have an easier time catching someone else's mispellings than my own even though
      both of us may be mispelling the same word in the same way.

      (2) Many members of the groklaw community do not speak English at home, and in
      fact their home is not in this country. Although highly intelligent and
      educated, they will make mistakes that are obvious to us. As long as what they
      say is loud and clear, let's live and let live.

      [ Reply to This | # ]

      Mountain from a molehill
      Authored by: Anonymous on Monday, May 03 2004 @ 10:21 PM EDT
      MAKING A MOUNTAIN OUT OF A MOLEHILL: The SCO Linux scam.
      My submission for a title.

      [ Reply to This | # ]

      now Canada will have to clean up the mess
      Authored by: Anonymous on Monday, May 03 2004 @ 11:29 PM EDT
      Not sure how....but if Bush can come crying to Martin for help now, well,
      anything's possible.

      [ Reply to This | # ]

      Watch for insider trading now
      Authored by: kawabago on Monday, May 03 2004 @ 11:38 PM EDT
      The gig is up, the cards are on the table and they're all jokers. Watch SCO
      execs and Canopy Group for insider trading because there's no value left in the
      company, they might as well get out rich!

      [ Reply to This | # ]

      The other time SCO threatened copyright claims against IBM
      Authored by: Anonymous on Tuesday, May 04 2004 @ 01:00 AM EDT
      Okay we've got a couple of times of SCO threatening copyright claims against
      IBM, that everybody is talking about:

      1. Kevin McBride's performance on December 5th

      2. In the press, Darl's claims (particularly but not only in Summer 2003) that
      IBM has misappropriated SCO code.

      3. The running theme of misappropration in SCO's complaint.



      Please however let us remember there is another example, of the same threats,
      which has already been presented to this very court.

      Go back to the IBM's (1st?) motion to Compel Discovery.

      IBM points at SCO forum in their initial brief.

      SCO replies it's (a) partly about SGI, (b) it's not about the current case, but
      about a possible copyright case

      IBM in their reply brief in support of their motion, say, well it might be
      partially about SGI, but why are IBM employees, IBM-related agreements, and
      IBM-related components (JFS etc) cited in the presentation?

      So here we have SCO telling the court, they are giving public presentations
      about a future possible copyright case, which based on the content, must be
      aimed in part at IBM.

      [ Reply to This | # ]

      It gets better
      Authored by: Anonymous on Tuesday, May 04 2004 @ 02:11 AM EDT
      > After the past year's media circus, you have it straight from the horse's
      mouth. The only copyright infringement claim they assert against IBM is for
      using and distributing AIX and Dynix after SCO "terminated" IBM's
      license, a termination that Novell told us they overruled. That's it, folks.
      What does that tell you?

      Not only that, but the grounds for "termination" of the licence were
      supposed disclosures of trade secrets and contract violations. Get my point? In
      order for the termination to be based on something, they have to _win_ this
      lawsuit. My $20 says it'll never happen.

      [ Reply to This | # ]

      SAP not liking Open Source
      Authored by: Anonymous on Tuesday, May 04 2004 @ 05:36 AM EDT
      Oracle actually does like linux and are partnering with Dell in this, So I
      figure Dell is there with SAP to soften them...

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text
      Authored by: prayforwind on Tuesday, May 04 2004 @ 08:31 AM EDT
      May I suggest we use the verb "plagiarize" rather than
      "steal" to describe the act of improperly using someone else's code?
      "Who stole my code?" implies theft... as in it was taken away from me.

      http://www.gnu.org/philosophy/words-to-avoid.html


      ---
      jabber me: prayforwind@jabber.org

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: Anonymous on Tuesday, May 04 2004 @ 09:20 AM EDT
      I just found "Ransom Love, Co-founder of Caldera and SCO, Speaks of Unix,
      GPL and the Lawsuit. eweek.com, Sept. ... SCO CEO Posts Open Letter to the Open
      Source Community. ..." with a google search on 'sco"

      I links to a http://sco.iwethey.org/ site. What's the drift of this site?

      ken k

      [ Reply to This | # ]

      Confusion
      Authored by: aaron_tx on Tuesday, May 04 2004 @ 10:01 AM EDT
      Help me out here people,
      In the article titled "DaimlerChrysler's Motion, Memorandum, and Exhibits -
      as text", there is a discussion about the M$ Word document meta data taken
      from the Daimler Chrysler complaint, including the following text:

      At the time of acquiring the BA UNIX/AIX License, Defendant knew or should have
      known: (a) that IBM’s license to distribute UNIX/AIX had been terminated by SCO
      pursuant to the UNIX/AIX Termination Notice and (b) that IBM’s distribution to
      it of UNIX/AIX software improperly included use of the UNIX Release 3.2
      Copyrighted Materials

      How can IBM have breached their UNIX license by contributing AIX code based on
      SysV UNIX (purportedly owned by SCOG) to Linux when SCO admits that AIX is a
      deriviative of UNIX 3.2? Wasn't UNIX 3.2 released under a modified BSD or
      public domain license in the latenineties? Even if IBM violated the terms of
      the 3.2 license how can SCOG claim in different cases that AIX is derived from
      two different UNIX codebases? Am I missing something (confusing UNIX R3.2 with
      32v)?

      Thanks

      [ Reply to This | # ]

      SCO Should have...
      Authored by: Anonymous on Tuesday, May 04 2004 @ 10:38 AM EDT
      SCO should have sued the millions of Tivo and embedded cell phone users, who
      have never heard of SCO or linux. For individuals the 700 dollar, single cpu
      license is a bargian compared to the legal costs. The amount of revenue
      generated would make any settlement with IBM look like chump change.


      _____________________________
      First there was even, then there was Darl McBride.

      [ Reply to This | # ]

      SCO vs IBM
      Authored by: wvhillbilly on Tuesday, May 04 2004 @ 11:44 AM EDT
      >>"Now, SCO is back-pedalling, because it's time to put up or shut up
      in court in the IBM case."<<

      Speaking of put up or shut up, what ever happened to the allegedly infringing
      code SCO was supposed to cough up a couple of weeks ago in the IBM case? I've
      heard nothing on that.

      And can the judge subpoena Bleep's "magic suitcase", or was that just
      more SCO smoke and mirrors?

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

      [ Reply to This | # ]

      SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM
      Authored by: Vaino Vaher on Tuesday, May 04 2004 @ 12:10 PM EDT
      This article was posted two days ago. That only goes to show how slowly I think
      these days!
      Now to my point:
      SCO was to produce the infringing code by April 19. If there is no copyright
      infringment involved (except for after the alleged termination of the
      contracts), then what code were they ordered to produce!?
      The judge can't possibly fail to notice this.
      SCO: "Here are the millions of lines of code that we were reqiested to
      produce".
      Judge: "What are they a proof of? What do they show?"
      SCO: "Nothing. We don't have any claims of copyright infringement in this
      case, and we never really had."
      Judge: "So why have you submitted all this material?"
      SCO: "Because you ordered us, Your Honor."

      [ Reply to This | # ]

      turnabout is fair play
      Authored by: codswallop on Tuesday, May 04 2004 @ 12:43 PM EDT
      The license agreements are contracts that grant licenses and also have other
      contractual obligations. Some of these obligations would be likely to be
      considered abuse of copyright if they were part of a license, so they have to be
      considered either invalid or purely contractual.

      The question is, can you cancel a license for violating a contractual term that
      couldn't legally be part of a license. My guess is not. If you could, then abuse
      of copyright could always be circumvented contractually, which goes against the
      purpose of copyright law.

      Imagine that I gave you a patent license that said you would have to pay me
      royalties for 5 years after the patent expired. This has been held to be abuse
      of patent, becauase it is an attempt to circumvent the term of the patent, which
      is a fundamental part of patent law. If I tried to do this contractually in
      concert with a valid license, the effect would be the same, and I'm reasonably
      sure the contract would be unenforceable.

      I believe SCO's claims would be held to be unenforceable, even if their reading
      of the contract was correct. They are abuse of copyright. I think this is where
      IBM is going with it's 10th defense. Seeing that this is one of SCO's defenses
      to GPL violation, the irony is lovely.

      [ Reply to This | # ]

      Darl's letter to Congress(persons)
      Authored by: Anonymous on Tuesday, May 04 2004 @ 08:20 PM EDT
      I think/hope IBM will introduce as evidence Darl's letter to Congress. It
      clearly says Linux contains UNIX code owned by TSCOG(or SCO, as they like to
      call themselves). It further claims that GPL puts code in the "public
      domain". It also says the GPL violates the US Constitution.

      I hope IBM quotes Eben Moglen,"Your honor, make them stop."
      and further, order them to issue a public statement rescinding their
      allegations, and send copies to the same mailing list.

      This would be a start at repairing the damage done to the GPL and Open Source.




      [ Reply to This | # ]

      Let the Layoffs Begin!
      Authored by: Anonymous on Tuesday, May 04 2004 @ 10:38 PM EDT
      SCO announces first round of layoffs
      Unfortunately, Darl wasn't on the list. Not this time, anyway.

      [ Reply to This | # ]

      Shocking news?
      Authored by: Anonymous on Wednesday, May 05 2004 @ 08:13 AM EDT
      What's the shocking news here, does this mean SCO is toast?

      Could someone explain in laymans terms why this is so important to the lawsuit.
      Also, it seems to get Linux out of trouble, but what about the connection with
      the other lawsuits and the GPL?

      [ Reply to This | # ]

      Dell supportive of Linux?
      Authored by: Michael57 on Wednesday, May 19 2004 @ 02:47 PM EDT
      Your sidestory on SAP and DELL made me look into the support of Linux or other
      OS besides of Windows.
      As I am a German citizen I tried the German website of Dell and there I choose
      to configure a desktop with Linux. They didn't offer this path. In searchmode I
      found 2 Suse Linux versions to buy separately (a corporate licence and a private
      one).
      I mailed them a question if an Linux desktop could be configured.
      As one of the leading hardware vendors of the world, I thought it to be worth
      knowing how much they are willing to bend towards their first obligation (their
      customers of course).
      I'll keep you informed about their answers.

      As this is my first post, I would like to thank pj and all supporters for their
      excellent work.
      I was awakened to this when Mydoom hit the world. I am reading this websites
      backlog since Baystar first asked it's money back. I am just getting up-to-date
      (without taking all the comments). This website is a dinosaur of information
      that can be groked by people outside of the law-business and outside of
      computing or outside of US too.
      Please, continue!

      [ Reply to This | # ]

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