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SCO's Rule 56(f) Motion -- as text
Sunday, July 11 2004 @ 05:39 PM EDT

Here is SCO's 56(f) Motion in Further Opposition to IBM's Motion for Partial Summary Judgment as text. The PDF is here and discussion is going on here. We are working on obtaining the exhibits. Meanwhile, tuxrocks.com has begun compiling a list of what the exhibits are, from the documents already in hand. There are a lot of them, all paper exhibits. Groan. The John Harrop declaration is available on SCO's website. We will wait for the official court copy to put it on Groklaw.

Thanks go, once again, as always, to Steve Martin for the work of turning this document into text, as a convenience for all of us but especially for those visually-impaired among us, who rely on plain text. How pleasant it is doing Groklaw, and getting to see the lovely qualities the volunteers show. Thank you, everyone, for pitching in.

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

Brent O. Hatch (5715)
HATCH, JAMES & DODGE, PC
[address, phone, fax]

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

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

Attorneys for Plaintiff The SCO Group, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.

Plaintiff/Counterclaim-
Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff.
THE SCO GROUP'S RULE 56(f)
MOTION IN FURTHER
OPPOSITION TO IBM'S MOTION
FOR PARTIAL SUMMARY
JUDGMENT

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") hereby moves the Court for an Order denying Defendant/Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Motion for Partial Summary Judgment or, alternatively, for an Order continuing consideration of IBM's Motion until sufficient discovery has been conducted. SCO's Rule 56(f) Motion is based on the following grounds:

As set forth in SCO Memorandum and accompanying declarations, SCO has not had sufficient time since IBM filed its counterclaims to analyze the million lines of Linux source code, to compare it to UNIX source code, and to trace the genealogy, ownership, registration and licensing of that code. SCO has also not received discovery essential to oppose IBM's motion, nor even basic discovery that would permit SCO simply to efficiently identify targets for future, focused discovery and efficient investigation of facts to oppose IBM's motion. Without such basic discovery, SCO's investigation for non-literal copying would be made much slower and more inefficient than would otherwise be necessary. SCO has not even been given the basic, Court-ordered discovery on which SCO has now been required to renew a motion to compel necessary to permit SCO to build and prioritize its investigation of non-literal copying into Linux.

This Motion is supported by the Rule 56(f) Declaration of John K. Harrop, the declarations of Christopher Sontag and Sandeep Gumpta and SCO's Memorandum in Opposition to IBM's Motion for Partial Summary Judgment and in Support of SCO's Rule 56(f) Motion.

Dated this 8th Day of July, 2004.

[signature of Brent Hatch]
HATCH, JAMES & DODGE, P.C.
Brent 0. Hatch (5715)
Mark F. James
[address, phone, fax]

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

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

Counsel for Plaintiff/Counterclaim-Defendant

Frederick S. Frei (admitted pro hac vice)
Aldo Noto (admitted pro hac vice)
John K. Harrop (admitted pro hac vice)
ANDREWS KURTH LLP
[address, phone, fax]

Of Counsel


CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, hereby certifies that a true and correct copy of THE SCO GROUP'S RULE 56(f) MOTION IN FURTHER OPPOSITION TO IBM'S MOTION FOR PARTIAL SUMMARY JUDGMENT served on Defendant International Business Machines Corporation on this 9th day of July, 2004, as follows:

BY HAND DELIVERY:

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

BY U.S. MAIL:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address}

Donald J. Rosenberg, Esq.
[address]

_______[signature]________


  


SCO's Rule 56(f) Motion -- as text | 74 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
corrections here please
Authored by: richbeales on Sunday, July 11 2004 @ 06:23 PM EDT
:-)

[ Reply to This | # ]

Off Topic / Links etc here pls.
Authored by: richbeales on Sunday, July 11 2004 @ 06:25 PM EDT
.

[ Reply to This | # ]

Trolls, puns and other nonsense here please
Authored by: MadScientist on Sunday, July 11 2004 @ 06:27 PM EDT

[ Reply to This | # ]

Typos here
Authored by: n0ano on Sunday, July 11 2004 @ 06:35 PM EDT
`Sandeep Gumpta'

Isn't his name Gupta? I hope it's a transcription error because otherwise SCO
doesn't even know who's working for them :-)

---
"Censeo Toto nos in Kansa esse decisse." - D. Gale

[ Reply to This | # ]

SCO had no evidence of copyright infringement!
Authored by: kberrien on Sunday, July 11 2004 @ 07:18 PM EDT
So is this the first big admission in court - at least at this time - that SCO
HAS NO EVIDENCE OF COPYRIGHT INFRINGEMENT!

Somehow I doubt I'll see lots of ZDNET, WSJ, Forbes articles tomarrow noting
this fact.

[ Reply to This | # ]

SCO's Rule 56(f) Motion -- as text
Authored by: Anonymous on Sunday, July 11 2004 @ 10:31 PM EDT
SCO has not had sufficient time since IBM filed its counterclaims to analyze the million lines of Linux source code, to compare it to UNIX source code, and to trace the genealogy, ownership, registration and licensing of that code.
Note the qualification (which I've bolded). In my opinion this qualification is probably the only thing that is saving this from being a bald faced lie, because without this self-imposed artificial time limit there is no way this sentence can be defended.

SCO have always had full access to both the SYSV code and the linux code, which is all that is needed to attempt to prove copyright infringement. And each piece of linux code at least is publicly documented to make it possible to trace who contributed it and when. By wording their motion in this strange way SCO is begging the question - "Why did you wait until IBMs counterclaim was made to start looking for evidence of this?"

Indeed SCO have been throwing public accusations of copyright infringement around for over a year, not only in the media but also in letters threatening companies with court action! They cannot claim that the neccessity of making such a comparison is something that only arose out of IBMs counterclaim.

We are compelled to ask, on what basis did they then threaten 1500 of Americas biggest companies with court action if they not only had no evidence of copyright infringement in linux, but apparently no notion that they should look for any until IBM laid its counterclaim.

Heck isn't this effectively tantamount to an admission that the whole SCO source thing has been nothing but an extortion racket right from the start? Not only didn't they have any evidence. They never even bothered to look! And they've just admitted it in court. Unbelievable!

[ Reply to This | # ]

The simplest reason why this memo is sunk - SCO's own statements to **THIS** court
Authored by: Anonymous on Monday, July 12 2004 @ 12:39 AM EDT
(1) SCO has ALREADY been arguing for the last several weeks,

... in front of Magistrate Judge Wells, re: protective order, discovery motions

...in front of Judge Kimball, re: scheduling order

That IBM's depositions should not go forward until SCO has had a chance to
review the code that IBM has already produced, as well as additional code that
they want IBM to produce in future. Otherwise SCO feel that IBM might spring a
surprise on them, or SCO might miss their only opportunity to ask a particular
question to a particular person.

i.e. No depositions until *after* SCO has analyzed all the code already produced
by IBM, as well as all the additional code that SCO wants IBM to produce in
future.


(2) In this motion, SCO is seeking relief under rule 56f that is the EXACT
opposite of point (1)

In this memo, SCO argues that they need to do depositions *before* doing
analysis of the code.

The court can easily reject this argument by citing any or all of SCO's own
arguments from point (1) right back at them.


Regards
Quatermass
IANAL, IMHO, etc.

[ Reply to This | # ]

25,000 man years contradicted by SCO's arguments to **THIS** court
Authored by: Anonymous on Monday, July 12 2004 @ 01:08 AM EDT
The idea of it taking 25,000 man years because only a manual comparison will do the job is contradicted by SCO's own prior filings to **THIS** court

As SCO put it previously (SCO's memo in support of SCO's motion to compel discovery IBM-67)

IBM further claims, in its October 10, 2003 letter, that a "third-party notification process" must be exhausted before it will turn over the relevant source code. It was clear to both parties, from the beginning of this case, that it would be necessary to run various source code comparisons, including AIX and Dynix code. These are lengthy and detailed processes, and need to begin as soon as possible. In IBM's response filed over two and one-half months ago on August 13, 2003, it referenced the need to obtain third party consents. On September 15, 2003, after repeated inquires by SCO, IBM again mentioned the need for "a substantial number of third-party notifications prior to production." On October 1, 2003, IBM represented that "[w]e're working on that process [of third-party notifications] now." Further prodding by SCO has revealed that IBM did not begin the process of notifying third parties until some time during the week of October 21. As a result, IBM now claims that it cannot turn over the code it promised in August until Thanksgiving. The Court should order IBM to identify and produce all versions and modifications of AIX from May 1999 to the present date, including development and design methods of AIX and notes relating thereto, without further delay.


Or as IBM explained in it their 2nd motion to compel discovery:
[5] SCO has produced scanned images of a paper printout of the source code for a number of its Unix products. However, it is machine-readable code that is necessary to perform the kinds of analyses that SCO acknowledges it understood from the beginning of the case that IBM would be required to perform. (See SCO's Memorandum in Support of its Motion to Compel at 5.)


Regards
Quatermass
IANAL IMHO, etc.

[ Reply to This | # ]

How a judge might analyze this
Authored by: AllParadox on Monday, July 12 2004 @ 01:20 AM EDT
There are a number of factors to consider:
1. Sheer merit to the claim.
2. Conduct of the parties.
3. Effect of a ruling.
4. Effect of the appearance of a ruling.

1. Sheer merit: IMHO, it is not well presented. They do not state succinctly
what they expect to find, why they expect to find it, or where they will look to
find it, and why that search is reasonably expected to turn up their evidence.
They do not state succinctly why it is that they will be injured (losing is not
enough). I do not consider this a failing on the part of the TSG attorneys.
One can only do just so much with mediocre facts.

2. The conduct of the lawsuit by TSG is highly questionable, IMHO. Sometimes,
lawsuits *are* only filed to spread FUD. Sometimes, the parties all believe
that the truth will vindicate their positions, and hound counsel to send
interrogatories and set depositions. Often, but not always, they can be
distinguished by how soon, and how agressively, discovery is executed. If TSG
has scheduled a deposition, I am unaware of it. Sometimes and often, a delay
can be explained around. Apparently, TSG wants to ignore their own delays. I
think most Federal District Court Judges and Federal Appellate Court Judges will
consider that "failure to explain" the same as an admission that these
are all FUD cases, whether in fact they are or are not.

(FWIW, this author's personal bias: very, very, very agressive discovery. When
filing an Answer, I always tried to talk my law firm and my clients into filing
notices of depositions and requests for discovery *with* the Answer. It is just
amazing what people will say if their lawyers have not had enough time to coach
them.)

3. The likely ruling is against TSG, that TSG will lose the Motion for Partial
Summary Judgment on Claim 10. Even if TSG is in the right on this (highly
doubtful), their apparently obstinate failure to produce any evidence weighs
heavily against them. The repeated public announcements by Mr. McBride and
other company officers about the "thousands of lines of copied code, as
demonstrated by the comments" creates the perception that TSG has long
since possessed the identifications. The failure to either produce the code, or
explain the failure is very damaging. Therefore, if TSG is wrong, then the
judge should rule against them, and even if they are ultimately correct, they
may properly suffer the incovenience of losing, due to their failure to
adequately address the discovery issue.

4. Perception by others of a ruling in favor of IBM: the interesting persons
are other Bar members, other Judges, and most especially, the Federal Court of
Appeals. This case is one of the most thoroughly and accurately reported
commercial cases in modern history. Bar members and other Judges that have the
slightest interest can learn more than they wish to know, by partaking of
GrokLaw. TSG has few or no friends in the legal community. Mostly, the
attitude is going to be "they had brass enough to file the suit: they have
brass enough to live with the results". The legal community is also pretty
much the "rent-a-friend" business anyway, so this is not surprising.
There is a fine and clear record in this case. IMHO, in spite of having an
alleged "Five Billion Dollars" in damages in dispute, TSG has appeared
to neglect discovery. The "Christmas" charade will sit very badly
with appellate judges. To come to court six months after that debacle and
*still* have not completed a significant and substantial portion of discovery
looks very bad. TSG may win an appeal, but it will not be because of sympathy
for TSG for abuse endured from this judge.

---
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 | # ]

SCO's arguments about code involving non-IBM contributions contradicted by SCO in **THIS** court
Authored by: Anonymous on Monday, July 12 2004 @ 01:21 AM EDT
SCO now says it needs to do extensive further discovery in order to identify infringing code contributed by entities other than IBM

Yet SCO previously justified it's slide shows, presentations to analysts, etc., as being off limits to IBM, - because they all supposedly involved non-IBM entities

Quoting from SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY

Against this backdrop, SCO provided detailed interrogatory answers that specify the source code files that contain the information that IBM and Sequent agreed to maintain as confidential and proprietary. Stripped of legalese, the two interrogatories in question here request SCO to identify:

1.All source code and other material in Linux to which SCO has rights, and how such material is derived from UNIX, and

2.Whether and how IBM has infringed those rights, and

3.Whether SCO itself has distributed the code or material SCO claims IBM has infringed.

SCO made two entirely appropriate objections to the interrogatories and then otherwise responded.

Largely because this is a case arising out of IBM's misconduct, SCO objected to identifying materials in Linux in which SCO has separate rights unrelated to IBM.For example, IBM has essentially claimed that SCO has shown third parties IBM's code contributions to Linux that SCO claims was placed in Linux in violation of its rights. To the contrary, it has been widely reported that such revealed code was placed in Linux not by IBM, but by another company, SGI. SCO need not produce SGI code that SGI placed in violation of its licenses with SCO. Such information is entirely unrelated to IBM's violations of its particular license agreements.

...

IBM's remaining criticisms of SCO's production likewise wither when compared to what has actually occurred. For example, IBM's oft repeated complaint that it has not been given access to the improperly contributed code SCO has shown to others ignores that such code was not IBM code, but the code improperly contributed to non-IBM entities. Likewise, IBM's request for files for certain individuals and for more recent source code agreements ignores that IBM was told that such documents were next in the rolling production after SCO first produced the source code in the new format requested by IBM.6 That source code production is nearly complete and it is expected that the files in question will be produced over the course of the next few weeks. In short, SCO's production of over 100 CDs worth of information dwarfs IBM's limited production of 18 CDs worth of documents.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

SCO's Rule 56(f) Motion -- as text
Authored by: Anonymous on Monday, July 12 2004 @ 02:29 AM EDT
I just an article
http://www.asiacomputerweekly.com/acw_ViewArt.cfm?Magid=1&Artid=24328&Ca
tid=2&subcat=19 which attributed this statement to Bill Gates when touring
through Asia:
"If you don’t want to create jobs or intellectual property, then
there is a tendency to develop open source. It is not something you do as a day
job. If you want to give it away, you work on it at night,” he said.

I think
he has now admitted that open source software is more cost effective than M$
products. Previously, I believe, he had argued that open source software
(particularly Linux) is more costly in labour.

He can't have his cake and eat
it too.

[ Reply to This | # ]

I need an opinion...
Authored by: Night Flyer on Monday, July 12 2004 @ 04:19 AM EDT
In its court document, SCO said "SCO has now been required to renew a
motion to compel necessary to permit SCO to build and prioritize its
investigation of non-literal copying into Linux."

I was reading "http://www.vssp.com/CM/Articles/Articles6278.asp",
'SCO, Its Claims of Nano-Copyright and the Emperor's New Clothes', by Douglas
L. Rogers. (And I concluded that SCO is stalling.)

It is a relatively long article, but it outlines what can be copyrighted and
what can't, and under what conditions. Mr. Rogers seemed to be clear that
non-literal copying is usually not an offense.

My point: Copyright law was written with 'books' in mind. How transferable is
it to computer code that evolves annually, if not daily, and is built on the
work of predecessors in an evolutionay sense?

Also, can I (we) take Mr. Roger's article as a good interpretation of the law as
it applies to computer programs, such as UNIX, Linux, Sys V and AIX in the
situation between SCO, IBM, et al?

From my reading, it supports Linux (and IBM). In it I read that short sections
(several lines) might be the same because there are few ways to write efficient
code to do specific functions. Thus, even if there were occasional lines that
were identical, it does not indicate copying/plagerism/infringement occurred.
It might be just the only easy way to accomplish a task.

For example: "'Don't shoot', he said" must show up in a hundred
detective novels. The courts would not be amused if one author sued the other
99, with this exact phrase. The courts would also be annoyed if the author sued
every detective novel that included a murder in a bedroom, or every murder with
a knife.

The part not so clear to me was: If many of the individual programs that make
up Sys V are not copyrightable, (due to prior art, public domain, simple lists,
etc.), can the functioning, total, complete program be copyrighted?

(As an analogy, Websters Dictionary cannot copyright individual words, or
definitions of words, but it seems it can copyright its dictionary in total,
preventing others from copying it and re-issuing it under another name.) I know
Linux does not do this. But we are back to the point that there are not a lot
of efficient/logical sequences when running a high speed busy computer, and
probably some sections of Linux and Sys V evolved to be similar. (Which is not
infringement either.)

The sub-question is, can the package called Sys V R5, be copyrighted, if its
individual components cannot be?

--------------------------
As an aside, of things unclear to me:
SCO has said that it found no evidence of identical code (literal copying)
between Sys V and Linux. Why hasn't this part of the court proceedings
evaporated (summary judgement)?


[ Reply to This | # ]

A key part everybody is forgetting
Authored by: Anonymous on Monday, July 12 2004 @ 01:38 PM EDT
SCO says they never made allegations that IBM's Linux activities infringe SCO's
copyrights

However, SCO sent a letter to IBM (and 1500 other corporations), alleging that
Linux did

http://www.groklaw.net/pdf/IBM-157-10.pdf

Quatermass

[ Reply to This | # ]

  • I agree - Authored by: Anonymous on Monday, July 12 2004 @ 02:44 PM EDT
Is this really a 56(f) motion?
Authored by: overshoot on Monday, July 12 2004 @ 04:59 PM EDT
Doesn't a 56(f) motion have to spell out
  1. Specific material facts in dispute, and
  2. A legal theory of how they would change the outcome of the case?
As far as I can tell, this motion doesn't present any such facts or theory. Much less is there any suggestion that the added discovery being sought would actually turn up evidence supporting such (non-asserted) facts.

For instance, although CC10 relates to copyright there is not one citation to the 17USC requirements for establishing copyright infringement (ownership, substantial similarity.) At most they refer to the on-its-face-laughable contention that finding substantial similarity would take 25,000 manyears.

In fact, reading this memorandum one comes away with the same impression that Judge Wells had in December: we still don't know what the case is about!

[ Reply to This | # ]

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