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Why SCO Requested to File Overlength Memo - What Is At Stake?
Tuesday, July 13 2004 @ 08:37 AM EDT

Here is SCO's Ex Parte Motion for Leave to File Over-Length Memorandum in opposition to IBM's Motion for Partial Summary Judgment on its Tenth Counterclaim, and here is Judge Kimball's Order granting them permission.

Here you find them pleading for more space, because a lot is at stake. You have read the memorandum already, but note in their motion what they are so nervous about: IBM has requested summary judgment under Rule 56 on the merits (that SCO has failed to produce any evidence of copyright infringement), and *alternatively* they are asking for sanction of dismissal under Rule 37(b)(2) (taking the position that if SCO were to come forward with evidence now, they should be sanctioned for allegedly failing to comply with discovery earlier while purportedly certifying to the court that they were in full compliance.)

This explains their urgency, but it doesn't answer one simple question: if SCO hasn't filed a copyright infringement claim against IBM and doesn't intend to, why does it care if IBM gets a summary judgment of non-infringement? Obviously, they aren't telling the judge their whole story, even in a very, very, very long memorandum, which we will have as text shortly. And if they do intend to make such a claim, why don't they present their evidence now? That would be a fine way to defeat the summary judgment. Because they don't have any? Where is that mountain of infringing code they told the world about? Was it all a dream?

By the way, SCO has filed in the Novell case. But the Pacer entry is interesting. I don't have the document yet, so I can't tell you more than that they filed:

31 - SECOND Amended complaint by SCO Grp Amends [31-1] amended complaint; jury demand (kvs) [Entry date 07/12/04]

Does anyone remember an amended complaint, to make this a Second Amended complaint?

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

Brent O. Hatch
HATCH, JAMES & DODGE, PC
[address]

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

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

Attorneys for 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.

___________________________________

EX PARTE MOTION FOR LEAVE TO FILE OVER-LENGTH MEMORANDUM

Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells

_________________________________

Plaintiff/Counterclaim-Defendant The SCO Group ("SCO") hereby moves the Court pursuant to District Court Rule 7-1(c) for leave to file an over-length Memorandum in Opposition to Defendant International Business Machines' Motion for Partial Summary Judgment on its Tenth Counterclaim for Declaratory Judgment of Non-Infringement and in Support of its Rule 56(b) Motion. SCO has combined argument on both Motions for the Court's convenience.

In its Memorandum in Support of Motion for Partial Summary Judgment, IBM requests summary judgment under Rule 56 on the merits and alternatively seeks the sanction of dismissal under Rule 37(b)(2). IBM's Rule 56 claim is based on its position that SCO has purportedly not produced any evidence of IBM's copyright infringement. IBM's alternative claim for sanctions under Rule 37(b)(2) is based on its position that if SCO were now to come forward with evidence in opposition to IBM's Motion, SCO should be sanctioned for allegedly failing to comply wth its discovery obligations while purportedly having certified full compliance to the Court. Thus, SCO must address IBM's legal and factual arguments under Rule 56 and also address IBM's request for sanctions under Rule 37(b)(2). In responding to these two claims, SCO must address IBM's numerous misstatements and mischaracterizations of the record and provide a detailed analysis of how SCO has fully complied with its discovery obligations.

Moreover, as part of its response to IBM's Motion, SCO has filed a motion under Rule 56(f). Rather than file a separate memorandum, SCO has included argument in support of its Rule 56(f) Motion in its Memorandum in Opposition to IBM's Summary Judgment Motion.

As SCO must address multiple issues and place them in context for the Court, SCO respectfully submits that the excess length is necessary to fully address the issues.

DATED this 8th day of July, 2004.

________[signature]________

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 EX PARTE MOTION FOR LEAVE TO FILE OVER-LENGTH MEMORANDUM was served on Defendant International Business Machines Corporation on the 9th day of July, 2004, as follows:

BY HAND DELIVERY:

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

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

Donald J. Rosenberg, Esq.
[address]

_______[signature]________


  


Why SCO Requested to File Overlength Memo - What Is At Stake? | 381 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Normal mistooks here please so PJ can find them
Authored by: oldgreybeard on Tuesday, July 13 2004 @ 09:30 AM EDT
Thank you.

[ Reply to This | # ]

What is IBM's best strategy here?
Authored by: Anonymous on Tuesday, July 13 2004 @ 09:33 AM EDT
What is IBM's best strategy for a reply to TSG's filing? TSG filed an enormous
document which seems to me to contain numerous statements of fact (or mis-fact
if you prefer), allegations, and claims as well as plain response to IBM's
motion.

Should IBM extract out just TSG's response and legal arguments and reply to
those? Or by so doing, does it leave TSG an opening to later claim (for
example) that Linux is a derivative of Minix is a derivative of Unix(tm),
because TSG claimed so in its filing and IBM did not disagree?

The problem with replying to all the statements in TSG's memo is that it would
require a document three times as long, which would look to the judge like
flooding.

Or can IBM reply in a concise manner in the body, then include an appendix with
detailed refutation of TSG's points?

sPh

[ Reply to This | # ]

OT stuff goes here ....
Authored by: oldgreybeard on Tuesday, July 13 2004 @ 09:33 AM EDT
.

[ Reply to This | # ]

Troll, troll food, and troll bait here please
Authored by: oldgreybeard on Tuesday, July 13 2004 @ 09:35 AM EDT
We like to keep our options _open_ sometimes trolls have a valid point, even if
we don't see it at the time.

[ Reply to This | # ]

Possible answer
Authored by: whitleych on Tuesday, July 13 2004 @ 09:39 AM EDT
It could be just that Sco doesn't want to lose _any_ portion of the case. It's
hard to keep your stock price up if you're perceived to be losing.

[ Reply to This | # ]

SCO's playing games....
Authored by: Anonymous on Tuesday, July 13 2004 @ 09:57 AM EDT
One theory might be that SCO doesn't want to show what it has until IBM turns
over what SCO wants, every version of AIX and Dynix/Ptx. Of course, one has to
ask what they have. It's mind boggling almost that Darl & Co. (whom haven't
been heard from in awhile now I noticed) went all over telling everyone they
have millions of lines of infringing code already found, etc... Darl once eluded
to the fact that he didn't want to show anyone what the evidence was because
"the linux community will just take it out".

Either SCO actually has something and is playing a very dangerous game with the
court, or they don't have anything in which case this whole thing is a giant
sham designed only to create effective FUD against Linux, which it has
unfortunately.

If they actually have any evidence they haven't shown, they must really be
counting on the judge's overall sense of fairness to squeak by with this garbage
and they'll just eat whatever financial sanction they get hit with.

However, my thinking is they probably don't have anything credible, they went
into this on a whim and a prayer thinking they could dig up what they need in
discovery, which hasn't happened.

No doubt when they lose or if IBM is granted their MSJ they will appeal
immediately and claim the order limiting the scope of discovery was predjudicial
to them.

[ Reply to This | # ]

1st and 2nd amended complaints in Novell
Authored by: Anonymous on Tuesday, July 13 2004 @ 10:01 AM EDT
PJ wrote:

By the way, SCO has filed in the Novell case. But the Pacer entry is interesting. I don't have the document yet, so I can't tell you more than that they filed: 31 - SECOND Amended complaint by SCO Grp Amends [31-1] amended complaint; jury demand (kvs) [Entry date 07/12/04] Does anyone remember an amended complaint, to make this a Second Amended complaint?
Tuxrocks lists an amended complaint -- "31 - SCO's Amended Complaint, filed 7/9/2004" -- but like the second amended complaint PJ mentions, the document isn't available yet.

[ Reply to This | # ]

re: *Second* Amended Complaint
Authored by: Anonymous on Tuesday, July 13 2004 @ 10:01 AM EDT
Tuxrocks has:

    "...31 - SCO's Amended Complaint, filed 7/9/2004..."

Dose Pacer have:

    "...31 - SECOND Amended complaint by SCO Grp Amends [31-1] amended complaint; jury demand (kvs) [Entry date 07/12/04].."?

One seemingly is dated the ninth, while the other is seemingly dated the twelfth, but both lead with "31"...

I know I'm confused.

t_t_b

---
Release the missing Exhibits!

[ Reply to This | # ]

Amended Complaints
Authored by: dmscvc123 on Tuesday, July 13 2004 @ 10:01 AM EDT
I believe the first complaint you file in court is called the "first
amended complaint" and if you redo it, it becomes the "second amended
complaint."

[ Reply to This | # ]

OT - What SCOG is doing to the legal system
Authored by: blacklight on Tuesday, July 13 2004 @ 10:07 AM EDT
I just realized that what SCOG is doing is launching a Denial of Service attack
on the legal system. The types of attacke I have identified on the fly include
malformed pleadings and motion flooding attacks.

[ Reply to This | # ]

"Was on all a dream?"
Authored by: Anonymous on Tuesday, July 13 2004 @ 10:11 AM EDT
It wasn't a dream. It's what really happened.

Maybe Michael Moore will be the one to do the movie about the whole fia-SCO.

[ Reply to This | # ]

Judge to SCO...
Authored by: Anonymous on Tuesday, July 13 2004 @ 10:22 AM EDT
Dear SCO,
I see no reason for an overlength document if you keep to one lie per subject.
If you wish to reference an additional list of lies, please do so.

[ Reply to This | # ]

Overlong memo: just a public pose
Authored by: Anonymous on Tuesday, July 13 2004 @ 10:25 AM EDT
Please remember SCO doesn't intend to win. This is entirely a public relations
strategy.

SCO wants an overlong memo because it is part of the facade of wanting to win.
There is nothing behind it. Just like the facade the new CFO of SCO helped build
at a previous employer to give a false impression of prosperity to investors
before it went into bankruptcy.

PJ, they're not nervous about losing. Whatever nerves they have is over possible
sanctions. The lawyers are trying to save themselves, not their clients.

[ Reply to This | # ]

Odd thing about novell filing
Authored by: Anonymous on Tuesday, July 13 2004 @ 10:27 AM EDT
Scox is being remarkably quite about this. Ordinarilly there would be news
releases all over the place - usually trying to spin things in an absurd
pro-scox way.

[ Reply to This | # ]

I don't have the document yet
Authored by: Anonymous on Tuesday, July 13 2004 @ 10:27 AM EDT
How long do you think it will take for someone to get this doc?
Love to see what they have to say on this one.

[ Reply to This | # ]

Language
Authored by: chaz_paw on Tuesday, July 13 2004 @ 10:37 AM EDT
I know that ignoring is best, but I cannot. The post about Darl, credit cards,
etc. is just too far across the line. Heaven knows I have said worse, but not in
a public forum like this.

PJ deserves better. She has made her wishes known on language. Let us all honor
her wishes or go elsewhere.

I will try to not feed the animals in the future.

PJ, you may delete this if you so desire.

Thanks, for Groklaw.

---
IAFTL- I am finally trying Linux.

Charles

[ Reply to This | # ]

  • Language - Authored by: Anonymous on Tuesday, July 13 2004 @ 10:57 AM EDT
    • Language - Authored by: Anonymous on Tuesday, July 13 2004 @ 11:07 AM EDT
SCO says "unable to present...proof"
Authored by: winnetuxet on Tuesday, July 13 2004 @ 11:22 AM EDT
Now SCO has very clearly said themselves what IBM has been saying all along...

SCO Counsel July 8, 2004
“Without full and complete access to IBM's works based on Unix System V (ie. AIV
and Dynix) and information about and from the programmers who contributed such
code to Linux, SCO is left to guess as to the origins of large amounts of code
IBM contributed to Linux and obviously would be unable to present to this Court
and ultimately to a jury proof that the code IBM contributed was in violation of
the license agreements.”
(Memorandum in opposition to motion for summary judgment, tenth counterclaim –
page 40)


This is especially troubling in light of what the CEO said shortly after
filing:

Darl McBride 2003-06-25
“Now, by going into pre-discovery, we have strong enough claims. We'd be fine to
go to court just on what we have before discovery.”

Why wasn't it obvious to Darl McBride back then that he couldn't present
proof??

Now only question remaining is whether they cannot present proof because they
haven't had a enough time/access, or because none exists.

But, they say, if we keep digging we may find proof. What, are their
grandchildren going to find it thousands of man-years later, when UNIX, Windows
and even Linux are relegated to the history books?

[ Reply to This | # ]

IBM licensed Unix for AIX, right?
Authored by: Anonymous on Tuesday, July 13 2004 @ 11:27 AM EDT
Doesn't IBM have the legal right by contract to have Unix code in AIX? I don't
see why AIX code is relevant to either side on a copyright issue because AIX is
*supposed* to be a Unix derivative. If there's copyright infringement with
regard to Linux activities, then the relevant code (and revision history) is
already available to SCO and the rest of the world. Am I missing something
here?

[ Reply to This | # ]

I see Brent Hatch is ...
Authored by: Anonymous on Tuesday, July 13 2004 @ 12:02 PM EDT
still spuing his FUD - makes me think that someone should look into daddy's
(that would be Orin Hatch, you know the chair of the Senate Judiciary Committee)
campaign contributions. Would anyone be surprise to see big bucks from M$?

[ Reply to This | # ]

Microsoft FUD
Authored by: nattt on Tuesday, July 13 2004 @ 12:39 PM EDT
Silicon: Microsoft's Ballmer hits out at "cloned" open source Would seem to show that Microsoft are getting on the Linx = Unix, bad IP act. Everyone should know that whatever problems there may be with open source IP, there will be worse problems in Closed source, but you just won't find out about them as easily, and as for responsibility - if you read a Microsoft EULA they deny all responsibility.

[ Reply to This | # ]

OT: Changes to SCO's Amended Complaint vs Novell
Authored by: Anonymous on Tuesday, July 13 2004 @ 12:54 PM EDT
Here are the changes that I could spot in SCO's amended complaint against Novell. I do not claim this is definitive or complete, just a first pass.

Enjoy in particular the bootstrapping and vague nature of the special damages in paragraph 21.

Some of my comments are interspersed in the quotes in square brackets [ ].


ADDITIONAL SLANDER CLAIM

There is an additional claim of slander in new filing in 19(k)
k) At March 2004 Open Source Business conference in San Francisco, Novell's Vice Chairman Chris Stone proclaimed during his keynote address that Novell "still own[s] UNIX."



SPECIAL DAMAGES CLAIM

Modifications to special damages claimed:
PREVIOUSLY...

21. Novell's wrongful claims of copyrights and ownership in UNIX and UnixWare have caused, and continue to cause, irreparable harm to SCO, in the following particulars:

a) Customers and potential customers of SCO are unable to ascertain the truth of ownership in UNIX and UnixWare, and make decisions based thereon; and

b) SCO's efforts to protect its ownership of UNIX and UnixWare, and copyrights therein, are subject to a false cloud of ownership created by Novell.


AMENDED VERSION...

21. Novell's wrongfulm claims of copyrights and ownership in UNIX and UnixWare have caused and continue to cause damage SCO in the following particulars: [the "cause damage SCO" is a typo in original]

a) Customers and potential customers of SCO are unable to ascertain the truth of ownership in UNIX and UnixWare, and make decisions based thereon; [unchanged]

b) Potential customers of SCO have informed SCO that they will not enter into agreements to license SCO's UNIX technologies at this time because of the cloud surrounding SCO's ownership of UNIX created by Novell's false public representations that it and not SCO owns UNIX. [new - but vague!]

c) SCO's efforts to protect its ownership of UNIX and UnixWare, and copyrights therein, are subject to a false cloud of ownership created by Novell. At the present time SCO is pursuing claims against third parties for infringement of SCO's intellectual property and contractual rights in UNIX. Defendants in those cases have relied on Novell's claims of ownership in UNIX as a defense to SCO's claims, thereby hindering SCO's ability to protect its copyrights and causing SCO to incur significant additional attorneys' fees and costs litigating in other forums issues resulting from the cloud Novell has placed on SCO's title to UNIX and UnixWare. [more bootstrapping1]


NEW PARAGRAPH - MORE SPECIAL DAMAGES

They add this as paragraph 27 (the old paragraph 27 is now 28). It's a variant on 21(c) but slightly more specific.

27. SCO has also incurred significant attorneys' fees and costs in its attempt to remove the cloud Novell has placed on SCO's title to UNIX and UnixWare, including but not limited to attorneys' fees' inccurred in researching and reviewing Novell's improper copyright registrations, attempting to mitigate damages by correcting and responding to Novell's false representations made to third parties, and in prosecuting this and other actions to protect SCO's title to UNIX and UnixWare.


CHANGES TO RELIEF

Paragraph 3 of the requested relief changes:

PREVIOUSLY...

3. For a preliminary and permanent injunction (a) requiring Novell to assign to SCO any and all copyrights Novell has registered in UNIX and UnixWare; (b) preventing Novell from representing in any forum that it has any ownership interest whatsoever in the UNIX and UnixWare copyrights; and (c) requiring Novell to retract or withdraw all representations it has made regarding its purported ownership of the UNIX and UnixWare copyrights.

NOW, NOTICE THE CHANGE...

3. For a preliminary and permanent injunction (a) requiring Novell to assign to SCO any and all copyrights Novell improperly registered in UNIX and UnixWare following the Asset Purchase Agreement; (b) preventing Novell from representing in any forum that it has any ownership interest whatsoever in the UNIX and UnixWare copyrights; and (c) requiring Novell to retract or withdraw all representations it has made regarding its purported ownership of the UNIX and UnixWare copyrights.



Enjoy!
Quatermass

[ Reply to This | # ]

[OT] Update on Autzone case:
Authored by: cfitch on Tuesday, July 13 2004 @ 01:03 PM EDT
According to LinuxToday, there was some movement in the Autozone case: Yahoo! Finance: Venue Change Denied; Stay Mostly Granted

[ Reply to This | # ]

Gotta love it
Authored by: Anonymous on Tuesday, July 13 2004 @ 01:20 PM EDT
"In responding to these two claims, SCO must address IBM's numerous
misstatements and mischaracterizations of the record and provide a detailed
analysis of how SCO has fully complied with its discovery obligations."


These comedians keep getting better & better! I'm particularly looking
forward to that detailed analysis regarding SCO's dicovery compliance. Ought to
be a real hoot.

[ Reply to This | # ]

Info on yesterdays SCO-Autozone hearing
Authored by: Anonymous on Tuesday, July 13 2004 @ 01:28 PM EDT
FYI

http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=1600684464&a
mp;tid=cald&sid=1600684464&mid=153386&thr=153144&cur=153144&
dir=d

[ Reply to This | # ]

if SCO hasn't filed a copyright infringement claim
Authored by: dodger on Tuesday, July 13 2004 @ 02:52 PM EDT
Doesn't the lack of a copyright infringement claim against IBM slam dunk the red
hat case in favor of red hat?

[ Reply to This | # ]

  • Not quite - Authored by: Jude on Tuesday, July 13 2004 @ 04:06 PM EDT
Why? Easy answer ...
Authored by: john hrdo on Tuesday, July 13 2004 @ 02:57 PM EDT
> if SCO hasn't filed a copyright infringement claim
> against IBM and doesn't intend to, why does it
> care if IBM gets a summary judgment of
> non-infringement?

Ah, an easy one. The main thrust of their attack
is that IBM has contributed (SCO Unix) derivative
code to Linux in breach of contract.

If the judge decides IBM's contributions to Linux
do not infringe on SCO's copyrights, what
derivatives are we speaking of? Only derivatives
of derivatives of derivatives where in the end not
one line of original code is left. Unfortunately
for SCO, that new definition of derivative work
will not found approval in court.

If SCO loses out on the summary judgement they can
kiss their derivative dreams goodby. And that's
pretty much the end of the entire case.

[ Reply to This | # ]

Why SCO Requested to File Overlength Memo - What Is At Stake?
Authored by: Anonymous on Tuesday, July 13 2004 @ 03:10 PM EDT
Hum ... Sounds like SCO could be finished sooner rather than later.

[ Reply to This | # ]

Why SCO Requested to File Overlength Memo - What Is At Stake?
Authored by: John M. Horn on Tuesday, July 13 2004 @ 03:24 PM EDT

The sooner SCOX is finished, the better. Happily, their FUD is having relatively
little impact on the market.

Seen in todays 'USA Today', a full page Dell advertisement featuring Dell
servers running Linux.

Seen on a 'Linux Journal' bumper sticker yesterday:
"In a world without fences, who needs GATES?"

Seen on a personalized Arizona license plate this morning:
"UID0"

Though that last might not have been referring to Linux as all Unix OSs also
have a uid0...

John Horn

[ Reply to This | # ]

My Private Little Theory...
Authored by: Anonymous on Tuesday, July 13 2004 @ 03:28 PM EDT
... is that some day in early 2003 some technician found stuff in Linux that
looked very similar to SysV source code. He digged deeper into it and found
more. With his results he went to Darl and told him, 'hey, big D, the Linuxers
have stolen our code'. D. smiled at him and the technician was very happy.

Darl looked at the similarities, suddenly Dollar-Signs started to blink in his
eyes, and he went for the biggest target he could find - IBM. He got so excited,
he bragged and gloated about the mountains of stolen code in the press and how
rich he would get and what scums these IBM and Linux guys'n'lasses are. The
stock went off like a rocket and Darl was very happy.

After some time, the technician came back and told him, 'sorry D., the
similarities are there because of the common BSD roots of the two sources - we
got nothing.' And the bacteria in the big salt lake of Utah suddenly received
some 75kg of extra food and became very happy.

But it was too late, big-mouth Darl had already leaned too far outside the
window. Admitting all was just a mistake could now attract angry ex-investors
sueing him for stock rate manipulation with his babbling. And so he decided to
go on and on, dragging out the cases forever, hoping for a wonder that will let
him keep face. And the lawyers saw that they would be employed for a long time
and became very happy.

Some time in the not to far future the air will get thin enough around him to
make Darl's SCO dream bubbles go *pop*. And then most of us normal people will
be very happy, too.

Michael Böhnisch



[ Reply to This | # ]

if SCO hasn't filed a copyright infringement claim against IBM and doesn't intend to...
Authored by: Anonymous on Tuesday, July 13 2004 @ 03:34 PM EDT
then there is no reason for them to have ANY source code discovery. None.
Zero. Zip.

There can be only one reason I think of: they intend to get lots of
"free" code from IBM, and either give it to others under their
"license" (Redmond, anybody?), or (with lots of new places to hide)
copy the code into SCO products and then claim infringement later against IBM or
Linux again.

Sad, but I think the judge will be mislead by them and will grant this travesty.

[ Reply to This | # ]

Too Many Over Lenght Memos?
Authored by: Graywing on Tuesday, July 13 2004 @ 04:11 PM EDT
Is it possible that the court will cease to allow SCO to file overlenght
documents? Has this happened before? What would the court say?

All these motions for overlegth docs is starting to get to me, not only that but

having to read all that extra SCO spu.

---
Ahh!! The mind what a wonderful trap.

[ Reply to This | # ]

Why SCO Tells Lies
Authored by: iceworm on Tuesday, July 13 2004 @ 06:21 PM EDT
Having read this and the overlength memorandum, I conclude
SCO is attempting to drive this case to trial by jury. Remember,
juries determine facts of a case after hearing evidence.

SCO is clearly brining up plenty of facts that IBM can dispute
which will drive this case eventually to trial.

[ Reply to This | # ]

SCO's Imaginative Redefinition of Derivative Work
Authored by: kawabago on Tuesday, July 13 2004 @ 07:14 PM EDT
SCO states in their opposition memorandum that their entire case is based on the
non-literal copying of UNIX code into Linux by IBM. They posit the question, is
the code in AIX that was entirely developed by IBM and is not derived from UNIX
Sys V code, legally considered a derivative work of UNIX Sys V? As I understand
it, this code did not extend existing capabilities in UNIX Sys V but added
entirely new capabilities. In this light, I don't see how SCO can prevail no
matter how long their memorandum is. No amount of hand waving will turn IBM's
original code into a derivative work if it does not contain any Sys V code.

Furthermore, SCO's imaginative redefinition of derivative works would make every
university student guilty of non-literal plagiarism every time they read sources
and then write a paper. In fact, it would make all school essays a copyright
infringement. Warm up the DMCA, we've got another student reading a book and
writing a paper, clearly infringing the original work.

By page 25 I was already betting that the Judge wished he'd reminded SCO of
Magistrate Wells statement that she didn't agree with their expansive
redefinition of derivative work.
It would have saved everyone a lot of time.

[ Reply to This | # ]

What About Doc #203?
Authored by: dmscvc123 on Wednesday, July 14 2004 @ 12:46 AM EDT
On Tuxrocks:
202 - Plaintiff's Ex Parte Motion for Leave to File Over-Length Memorandum
204 - Order Granting Plaintiff's Ex Parte Motion for Leave to File Over-Length
Memorandum

What happened to 203 or was this a typo?

[ Reply to This | # ]

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