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IBM's Supplemental Memo in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims
Wednesday, June 30 2004 @ 09:10 PM EDT

Here is IBM's Supplemental Memorandum in Opposition to SCO's Motion to Dismiss or Stay Count Ten of IBM's Second Amended Counterclaims. Remember at the June 8 hearing when the judge asked if counterclaim 10 was compulsory and the attorney said no? Well, he should have said yes, and this memorandum is IBM saying yes, correcting the record. Counterclaim 10, IBM's request for a declaration of non-infringement of SCO's copyrights (if they even have any), IBM is clarifying, is compulsory, and this document provides all the reasons why they say so.

Here is what you do when you need to correct something. You send a letter to the judge and quickly let him or her know that you need to correct what you said or wrote. Then you file your supplemental memorandum. That is what happened here, and you'll see all that in footnote 1.

It's not possible never to make a mistake or never to want to fix something, particularly things that happen in oral arguments. We've seen that on both sides now. SCO put in a Corrected Motion to Dismiss or Stay on this very motion, if you recall. Now IBM is clarifying their position on the compulsory issue. SCO has been trying to limit their copyright claims against IBM, narrowing them down to "IBM's own contributions to Linux", but IBM argues that even if you so narrow, judicial economy is best served by IBM seeking a declaration of non-infringement "as to all the allegedly infringing code in Linux". In short, this is the copyright infringement ball of wax as far as IBM's contributions of code to Linux (as opposed to SCO's claims about AIX post-termination), and SCO knows it, so they are fighting hard to fight this claim off, seeking a dismissal or a stay until after the AutoZone case is heard. IBM is saying: there is no proof of copyright infringement in Linux. They told the world we were guilty, and now there is nothing to back up what they said, so we'd like the court to clear our good name.

IBM in this memorandum gives us a class on what it means that a counterclaim is compulsory:

"Under Rule 13(a), a counterclaim is compulsory 'if it arises out of a transaction or occurrence that is the subject matter of the opposing party's claim.' Fed. R. Civ. P 13(a). Courts give 'the terms "transaction" and "occurrence" contained in Rule 13(a) . . . flexible and realistic constructions in order to effect "judicial economy", i.e., trial in one action of all related controversies between the parties and, of course, the avoidance of multiplicity of suits.' . . . 'The reason for compelling the litigant to interpose compulsory counterclaims is to enable the court to settle all related claims in one action, thereby avoiding a wasteful multiplicity of litigation on claims arising from a single transaction or occurrence.'

"Rather than articulate precise definitions for the terms 'transaction' and 'occurrence', the Tenth Circuit (like other circuits) has articulated a number of standards 'by which the compulsory or permissive nature of specific counterclaims may be determined', including the following:

'(1) Are the issues of fact and law raised by the claim and counterclaim largely the same?

'(2) Would res judicata bar a subsequent suit on defendants' claim absent the compulsory counterclaim rule?

'(3) Will substantially the same evidence support or refute plaintiffs' claim as well as defendants' counterclaims? and

'(4) Is there any logical relation between the claim and the counterclaim?'"

Under any of those four tests, IBM argues, their 10th counterclaim is compulsory. There is another footnote of interest related to this same issue. The memorandum discusses the compulsory nature of the 10th counterclaim by pointing out that it mirrors the allegations SCO has made against it in the IBM case but then it also throws in SCO's face what they said on the same subject in the Red Hat case. You have noticed the conflicting claims, and so has IBM and now they highlight them to the judge, and they quote from the Red Hat pleadings to highlight the inconsistencies. Then footnote 9 reveals that SCO has sent a letter to the judge in the Red Hat case, something you may have noticed on Pacer. Footnote 9 tells us what it is about:

"More recently, in May 2004, SCO argued in opposition to Red Hat's attempt to lift the stay the Delaware Court had imposed sua sponte 'pending a resolution of the Utah litigation between SCO and IBM' (Sorenson Decl. Ex. 2 Paragaph 2) that 'the IBM case will address a central issue in this [Red Hat] case: whether Linux contains misappropriated UNIX code'. (Sorenson Decl. Ex. 3 at 3.)[9] . . . . . .9. Apparently recognizing that its position in the Red Hat case is inconsistent with its new view of its copyright claim, SCO recently submitted a letter to the Red Hat court attempting, it seems, to explain away the inconsistency. There is no explanation except that SCO seeks now to redefine its claim to support its present motion."

In other words, a counterclaim is compulsory if it stems from the same facts and is logically related to the claims alleged by the plaintiff, or as IBM puts it:

"It is axiomatic that counterclaims relating to the same copyrights that are the subject of a plaintiff's claims are logically related to the plaintiff's claims and are therefore compulsory."

The rule is Federal Rule of Civil Procedure 13(a), and civil procedure just means the rules the federal courts follow when handling trials. States have their own rules. You need guidelines, so both sides know what the judge will accept, how to present things, etc. It's not the same as a law, but it might as well be in a sense, because you have to follow the rules. There are Federal Rules of Evidence too, by the way, letting you know what you can offer as evidence and what you can't. Here is a case that explains it:

"Federal Rule of Civil Procedure 13(a) provides that:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction."

Res judicata just means you can't bring a case afresh once it's been decided. You can't bring a case, lose and then try again on the same facts. As IBM quotes from a case, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action." So, if SCO's copyright claims against IBM are decided here and now, "SCO is barred from bringing a subsequent claim of copyright infringement against IBM for any other allegedly infringing code in Linux of which it is presently aware or could be aware with the exercise of due diligence." Ah. No more discovery fishing trips. Wouldn't that be delightful?

Aren't you glad to know that somebody thought about plaintiffs from hell and clipped their evil wings with the rule of res judicata?

IBM is certainly giving us quite a legal education, don't you think? It's more fun to learn like this than to sit in a classroom, for sure. For one thing, there are no pop quizzes.


  


IBM's Supplemental Memo in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims | 197 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please
Authored by: overshoot on Wednesday, June 30 2004 @ 09:16 PM EDT
You know why

[ Reply to This | # ]

OT and links here
Authored by: overshoot on Wednesday, June 30 2004 @ 09:17 PM EDT
Why not?

[ Reply to This | # ]

Trolls, punning contests, and other really wierd stuff here
Authored by: Anonymous on Wednesday, June 30 2004 @ 09:28 PM EDT
To keep it out of everyone else's way.

--Bill P

[ Reply to This | # ]

Asking clarification: Tenth Circuit ?
Authored by: Night Flyer on Wednesday, June 30 2004 @ 09:41 PM EDT
Second Circuit? Tenth Circuit?

I think I'm OK on state courts, appeals court for each and federal court, with
branches in each state. I understand that some aspects of law are the
responsibility of the state court and some are in federal jurisdiction (with a
few grey areas between).

I need a short course about the Second Circuit, and Tenth Circuit and how these
fit into the mix.

[ Reply to This | # ]

IBM's Supplemental Memo in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd A
Authored by: Anonymous on Wednesday, June 30 2004 @ 09:44 PM EDT
IBM is claiming that SCO has brought copyright infringement charges against them
regarding Linux. I thought SCO's lawsuit was only about IBM violating their
contract by disclosing code SCO says is supposed to remain confidential.

Aren't the only copyright charges against IBM related to continuing to
distribute AIX after their contract was purportedly terminated?

Although, in one of SCO's responses, they imply IBM doesn't have the right to
put copyright notices on their own AIX code, which suggests that SCO thinks they
are entitled to copyrights on IBM's code.

[ Reply to This | # ]

Transcription Underway
Authored by: Steve Martin on Wednesday, June 30 2004 @ 09:48 PM EDT
In case anyone was considering it, I'm already transcribing, should hopefully be
done before bedtime tonight.


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

[ Reply to This | # ]

Procedural law
Authored by: Anonymous on Wednesday, June 30 2004 @ 09:53 PM EDT
civil procedure just means the rules the federal courts follow when handling trials. States have their own rules. ... It's not the same as a law, but it might as well be in a sense, because you have to follow the rules.
Indeed, in some places, The Rules of Procedure and Evidence are referred to as Procedural Law. In California, the state equivalents to FRCvP and FRE are Code of Civil Procedure (CCP) and the Evidence Code (EC). Since these procedural rules are codified as laws, it makes sense to consider them as Procedural Law.

Each court (e.g., county) may have local rules, and the California Judicial Council promulgates statewide rules, as well. (These often deal with defining forms to be filled out for specific purposes; and whether the form is mandatory or optional.) The local rules are equivalent to the local rules of the Federal Districts.

--Bill P

Now you know way more than you ever wanted to know about this stuff.

[ Reply to This | # ]

It's *everyone*'s contributions, not just IBM's.
Authored by: Anonymous on Wednesday, June 30 2004 @ 09:57 PM EDT

PJ says:

In short, this is the copyright infringement ball of wax as far as IBM's contributions of code to Linux

That's SCO's description of the ball of wax (which SCO says should be dismissed). IBM say it's a much bigger ball: it's all (if any) code in Linux that's copyrighted by SCO and that was put in there without SCO's permission, regardless of who put it in there (page 13):
Whether any allegedly infringing code in Linux was contributed by parties other than IBM, and whether those parties might as a result also be liable to SCO for copyright infringement, breach of contract or some other claim, is of little moment to IBM's Tenth Counterclaim. SCO's lamentations about the "sweeping breadth" of IBM's counterclaim are therefore unfounded.

IBM wants a decision now that IBM is not knowingly, nor unknowingly, infringing any SCO copyright by copying Linux. It immediately follows from such a decision that nobody else is, either.

[ Reply to This | # ]

IBM's Supplemental Memo in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd A
Authored by: tredman on Wednesday, June 30 2004 @ 10:07 PM EDT
Back in the early days of the legal circus which is SCO v IBM, much criticism
was levied on IBM because, while SCO was being very cavalier about their case,
IBM had next to nothing to say. They remained very tight-lipped about their
strategy and opinions of the case.

Now I see that many were looking in the wrong place for Big Blue commentary. It
strikes me as significant that they've laid out all of their pleadings and
motions in such a way that, not only are they acceptable in a civil proceeding,
but they've also been made to be very accessible to a lay audience. Instead of
hiding behind the curtain of legal procedure, they've taken great pains to say,
in plain language, what their side of the story is, and in such a way as to
teach the reader a little bit about the US legal system.

It's been an education and a pleasure up to this point. I hope that it
continues to be so right up to the very end.

Tim

[ Reply to This | # ]

Has IBM asked for a 204(a) writing?
Authored by: Anonymous on Wednesday, June 30 2004 @ 10:15 PM EDT

I'm sorry, I haven't read EVERYTHING in the court filings.

But wouldn't it have served IBM well if it demanded that SCO supply a 204(a)
writing on Unix copyrights when this all started, long before it
became an issue in the Novell case? If not, why not?


[ Reply to This | # ]

oops, they did it again
Authored by: gdeinsta on Wednesday, June 30 2004 @ 10:41 PM EDT

Look at footnote 14 (page 12):

Indeed, in the letter it recently submitted to the Court in the Red Hat case, SCO claims as a result of its on-going investigations to have "discovered significant instances of line-for-line and 'substantially similar' copying of code from Unix System V into Linux". However, despite IBM's discovery requests asking SCO to provide such information, and two Court orders directing SCO to provide it, SCO still has not fully identified for IBM the "line-for-line" and "substantially similar" copying it claims to have discovered.

Boy-oh-boy SCOG are just begging for sanctions. If that isn't brazen contempt of court what is it?

[ Reply to This | # ]

IBM's Supplemental Memo in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims
Authored by: blacklight on Thursday, July 01 2004 @ 01:45 AM EDT
"IBM is certainly giving us quite a legal education, don't you think? It's
more fun to learn like this than to sit in a classroom, for sure. For one thing,
there are no pop quizzes."

Both the SCOG top management and the SCOG legal team are getting pop quizzes
every time IBM, RH, Novell, Autozone and DC file a motion and every time the
groklaw community analyzes that motion. Too bad these SCOG parasites don't get
bitch slapped for plagiarism and outright copying - not that it works all that
well, in their case.

The fact that the SCOG legal team is lying through its teeth in one court about
what they are doing in another is indicative of the predicament they find
themselves in each court. And their contual stream of requests for delays is
indicative of someone who is not willing to hand in the quizzes on time and is
whining for endless extensions.

My theory is that if enough of us jump on SCOG's back, then SCOG's back will
break. Let's put that theory to a test.

[ Reply to This | # ]

IBM's Supplemental Memo in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims
Authored by: blacklight on Thursday, July 01 2004 @ 01:58 AM EDT
I don't recall SCOG making any compelling arguments that IBM's Tenth
counterclaim should be dismissed or at the minimum stayed. On the other hand,
IBM asserts that there are enough facts for a judicial decision about its Tenth
counterclaim now. Even if the judge turns down IBM's motion now, that motion
will hang over SCOG's head for the duration of the trial.

[ Reply to This | # ]

was it really a mistake?
Authored by: Paul Shirley on Thursday, July 01 2004 @ 07:58 AM EDT
Since IBM seem to have introduced a lot of damaging testimony under cover of
correcting a 'mistake', testimony they could not have squeezed into the court
time, was this a mistake or a clever ploy?

I'm always surprised by how little gets said in each court appearance, they've
just added more than happened at the court appearance!

[ Reply to This | # ]

OT - New McBride sighting in SD Times...
Authored by: Anonymous on Thursday, July 01 2004 @ 11:22 AM EDT
http://sdtimes.com/news/105/story3.htm

[ Reply to This | # ]

..yoho, SCO! Try top George Wild-eye's class act! ;-)
Authored by: Anonymous on Thursday, July 01 2004 @ 01:51 PM EDT
.. http://www.georgewbush.com/News/MultiMedia/VideoPlayer.aspx?ID=901&T=2

[ Reply to This | # ]

..yoho, SCO! Try top George Wild-eye's class act! ;-)
Authored by: Anonymous on Thursday, July 01 2004 @ 01:52 PM EDT
.. http://www.georgewbush.com/News/MultiMedia/VideoPlayer.aspx?ID=901&T=2

[ Reply to This | # ]

..yoho, SCO! Try top George Wild-eye's class act! ;-)
Authored by: Anonymous on Thursday, July 01 2004 @ 02:00 PM EDT
.. http://www.georgewbush.com/News/MultiMedia/VideoPlayer.aspx?ID=901&T=2

[ Reply to This | # ]

IBM's Supplemental Memo in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd A
Authored by: Anonymous on Saturday, July 10 2004 @ 05:09 PM EDT
Is this still around?

[ Reply to This | # ]

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