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IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Monday, August 16 2004 @ 11:16 AM EDT

Here is IBM's Redacted Memorandum in Support of Motion for Partial Summary Judgment On Breach of Contract Claims, filed by IBM on Friday. It's a hundred-page PDF. As you will see, they are going for the jugular now. Astoundingly, they say that all parties involved in the contract between AT&T and IBM have now provided testimony in discovery that IBM has the right to do whatever it wishes with its own code, contrary to SCO's claims, or as the memorandum puts it, they all provided "unequivocal testimony that the agreements were not intended and should not be understood to preclude IBM's use and disclosure of homegrown code and contemporaneous documents reflect this interpretation of the licenses".

SCO thought it was going to find evidence in discovery to bolster its case, but it has worked out exactly the opposite. I haven't finished reading the memorandum myself, because I wanted to share it with you immediately, but it looks like this is the heart of what's left of SCO's case. Everything you hoped IBM would say to the judge, they are saying, including pointing out that Novell has waived any breach, even if there had been one, which there wasn't. If IBM wins this motion, I think I might be in my red dress soon.

You don't want to miss reading page 76. It's where IBM tells the judge that as recently as August 4, 2004, SCO was *still* offering the Linux 2.4 kernel for download, the very code it is suing IBM over. My understanding of the significance of this revelation is that SCO has now released knowingly all the code at issue under the GPL. In the beginning of the case, they said they didn't know the allegedly infringing code was in there when they released Linux under the GPL. They can't say that since they filed the lawsuit in March of 2003. Now, in August of 2004, they are *still* distributing the same code under the GPL. Under the terms of the GPL, there is no taking that code back that I know of. I think, therefore, that SCO's case just went poof, on this one issue alone.

The Memorandum's preliminary statement goes like this:

Although SCO for months perpetuated the illusion that it had evidence that IBM took confidential source code from UNIX System V and "dumped" it into Linux, it has become clear that SCO has no such evidence. Instead, SCO's claims that IBM breached its agreements with AT&T depend entirely on the allegation that IBM improperly contributed certain of IBM's original source code, contained in its own AIX and Dynix operating systems (each of which contains tens of millions of lines of source code), to Linux. According to SCO, because AIX and Dynix allegedly contain some small component of source code from UNIX System V (SCO claims there are approximately 74,000 lines of UNIX System V code in AIX and approximately 78,000 lines in Dynix, which amounts to less than one percent of the total lines of code in AIX and Dynix), IBM is prohibited by its licensing agreements from disclosing any of the other millions of lines of code in AIX or Dynix, even if that code was created by or for IBM and contains no UNIX System V code.

SCO is wrong as a matter of law, and IBM is entitled to partial summary judgment on SCO's contract claims, for at least two independent reasons.

First, the AT&T agreements upon which SCO's claims are based do not preclude IBM from using and disclosing source code that is written by IBM and does not include UNIX System V code (referred to herein as "homegrown" code):

1. The plain and unambiguous language of the agreements imposes no restrictions on the use or disclosure of source code that does not contain UNIX System V code (See Section I.A.)

2. The individuals who executed the licenses and were involved in their negotiation, on behalf of both AT&T and IBM, have offered unequivocal testimony that the agreements were not intended and should not be understood to preclude IBM's use and disclosure of homegrown code and contemporaneous documents reflect this interpretation of the licenses. (See Section I.B.)

3. Interpreting the licenses to prohibit the disclosure of homegrown code would be patently unreasonable. (See Section I.C.)

Second, even if the AT&T agreements could be read to preclude the disclosure of homegrown code -- and they cannot be -- any breach based upon such a reading has been waived by Novell, Inc. ('Novell') on behalf of SCO, and by SCO itself:

1. Novell, which at one time owned all rights in the AT&T agreements at issue, retains the right to waive alleged breaches of the agreements, and Novell has exercised that right to effect a waiver of the alleged breaches in this case. (See Section II.A.)

2. SCO itself sold or otherwise made available to its customers and the public the code it claims IBM should not have revealed. By its own conduct, therefore, SCO has waived any right to claim that IBM acted improperly by contributing its code to Linux. ( See Section II.B.)

For these reasons, partial summary judgment should be entered on behalf of IBM on SCO's claims for breach of contract (SCO's First, Second, Third and Fourth Causes of Action).

And note that on page 10, the memorandum is supported by no less than *16* declarations. Oh, my. We will be busy bees this week.

Also, note paragraphs 60 and 61 on pages 23 and 24:

60. It is plain from SCO's discovery responses that SCO has no evidence that any of the source code IBM contributed to Linux is either literally copied from source code in UNIX System V or is derived from source code in UNIX Sytem V. (See Exs. 6 & 27.) Indeed, SCO has purported to identify the lines of UNIX System V code that are present in AIX and Dynix, and none of those lines are among the lines of code SCO claims IBM improperly contributed to Linux. (See Ex. 6 at Exc. E & F.)

61. In addition, Dr. Randall Davis, Professor of Computer Science and Engineering at the Massachusetts Institute of Technology, has analyzed the specific lines of source code from AIX and Dynix that SCO claims IBM contributed to Linux. (Davis Decl. 23.) As Dr. Davis has concluded, that code does not contain any portion of source code from UNIX System V and is not substantially similar to any source code in UNIX System V. (See id. 48.) Accordingly, Dr. Davis opines that the specific code IBM allegedly contributed from AIX and Dynix is neither a modification nor a derivative work of UNIX System V. (See id. 49.)

So, an MIT deep diver surfaces at last. A real one. With a name. And on IBM's side.

And you thought IBM lawyers had no sense of humor.

Also of interest is Otis Wilson's testimony. Note page 25, paragraph 68, and page 28, paragraph 82:

68. At the time the agreements were signed, Mr. Wilson was the head of AT&T's department responsible for licensing AT&T's UNIX software, including UNIX System V, worldwide. . . .

82. For example, Mr. Wilson states in his declaration:

"These provisions set forth our licensees' rights as they relate to the UNIX System V source code and related materials -- the 'SOFTWARE PRODUCT' or 'SOFTWARE PRODUCTS' -- that AT&T provided to them. At least as I understood these sections and discussed them with our licensees, they do not, and were not intended to, restrict our licensees' right to use, export, disclose or transfer their own products and source code, as long as they did not use, export, disclose or transfer AT&T's UNIX System V source code along with it. I never understood AT&T's software agreements to place any restrictions on our customers' use of their own original work."
So Sequent is clean too, according to Mr. Wilson. He ought to know. He was head of AT&T's licensing department -- not IBM's -- at the time.

Mr. Wilson raises two more points on page 30: first, that no licensee would have been willing to sign themselves into indentured servitude by agreeing that all code they wrote or paid others to write or licensed from others from that day forward would belong to AT&T, and two, that had they been willing to do so, it would have raised antitrust issues for AT&T at the time. This, obviously, directly contradicts the main thrust of SCO's claim that all modifications, derivatives, methods, blah blah belong to them. Remember, Mr. Wilson is saying, that AT&T had antitrust concerns back then, and it is implausible that such a one-sided contract could have passed muster:

85. The witnesses do not dispute that the 'resulting materials' referenced in Section 2.01 do not include homegrown code, even when that code is itself contained in a modification or derivative work based on UNIX System V. (See Wilson Decl. 14-15; Ex. 34 at 55:23-57:14; Frasure Decl. 13-16; Ex. 35 at 42:17-48:25; McDonough Decl. 11-20; Rodgers Decl. 7-9; Ex. 36 at 25:15-30:20, 100:1-102:5; DeFazio Decl. 16-17; Kistenberg Decl. 11-12; Vuksanovich Decl. 14-15; Cronan Decl. 11; Mobley Decl. 8-9; Swanson Decl. 10.)

86. Mr. Wilson of AT&T states:

As my staff and I communicated to our licensees, this provision [Section 2.01] was only intended to ensure that if a licensee were to create a modification or derivative work based on UNIX System V, any material portion of the original UNIX System V source code provided by AT&T or USL that was included in the modification or derivative work would remain subject to the confidentiality and other restrictions of the software agreement. As we understood Section 2.01, any source code developed by or for a licensee and included in a modification or a derivative work would not constitute 'resulting materials' to be treated as part of the original software product, except for any material proprietary UNIX System V source code provided by AT&T or USL and included therein."

87. Indeed, Mr. Wilson states that he "do[es] not believe that our licensees would have been willing to enter into the software agreement if they understood Section 2.01 to grant AT&T or USL the right to own or control source code developed by the licensee or provided to the licensee by a third party". (Wilson Decl. 16; see also Ex. 34 at 57:15-58:20.) Mr. Wilson, in fact, was of the view at the time "that we could not claim any rights to non-UNIX System V code source . . . without raising serious antitrust issues. (Id. 18; see also Ex. 34 at 57:15-58:20, 59:15-61:3.)

Then AT&T's Stephen Vuksanovich in his declaration, paragraph 91 on page 31, takes it even further:
91. ...Our standard software agreements also gave licensees the right to modify UNIX System V source code and to prepare derivative works based upon the code. As I believe we intended the agreements, and as I told our licensees, our licensees owned their modifications and derivative works they prepared based on UNIX System V, and were therefore permitted to do as they wished with those modifications and derivative works, so long as they treated those portions of the modifications or derivative works consisting of any UNIX System V source code the same way they treated the UNIX System V source code that we provided to them. I recall that during our negotiations IBM specifically wanted to make sure that IBM, and not AT&T, would own and control code that was developed by or for IBM, even if that code was mixed with AT&T's UNIX System V code in a product. I assured IBM that we had the same understanding.
So the issue came up in negotiations and IBM was told modifications belonged to IBM, and so long as they kept System V code out, they were free to do whatever they wished with their own code, even modifications to System V code they wrote themselves. IBM can hardly be accused of violating any contract if that is what they were told. And with all these witnesses, who negotiated the contract on both AT&T and IBM's sides, saying the same thing, who in the world can SCO produce to counter this testimony?

IBM sums it up on page 62:

The plain and unambiguous language of IBM's and Sequent's agreements with AT&T therefore establishes that the use and disclosure restrictions of Sections 2.01, 2.05, 4.01, 7.06(a) and 7.10 of the IBM and Sequent Software Agreements do not apply to original code created by IBM and Sequent. To the contrary, AT&T expressly disclaimed any purported right to control the use and disclosure of IBM's or Sequent's homegrown code.
And on page 63, IBM states that SCO has provided no evidence that the code IBM is alleged to have improperly contributed to Linux from AIX and Dynix -- such as RCU, JFS, EVMS and AIO -- contains any UNIX System V code:
Therefore, such code is not subject to any restrictions under the IBM and Sequent Software Agreements, and SCO's contract claims fail as a matter of law.

  


IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims! | 1035 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Anonymous on Monday, August 16 2004 @ 11:33 AM EDT

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: sef on Monday, August 16 2004 @ 11:34 AM EDT

Heh.

"We didn't do it. Even if we did, these guys said we could, but we didn't. And even if we did, which we didn't, not only did these guys say we could (but we didn't), but these nobks did the same thing, so we should be allowed to do it. Which we didn't."

What a lovely Monday-morning surprise!

[ Reply to This | # ]

OT and other links here please
Authored by: Anonymous on Monday, August 16 2004 @ 11:34 AM EDT

[ Reply to This | # ]

WOW!!!
Authored by: Anonymous on Monday, August 16 2004 @ 11:35 AM EDT
WOW!!!

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: Anonymous on Monday, August 16 2004 @ 11:38 AM EDT
The axe has fallen, SCO no more!

[ Reply to This | # ]

My Fantasy
Authored by: llanitedave on Monday, August 16 2004 @ 11:38 AM EDT
I log on to this site a few weeks hence, and find the simple phrase:
Game over.

---
Of course we need to communicate -- that goes without saying!

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: orpheus52 on Monday, August 16 2004 @ 11:43 AM EDT
Get the stakes sharp and go for the heart. Die SCO die.

[ Reply to This | # ]

Blank Document
Authored by: llanitedave on Monday, August 16 2004 @ 11:45 AM EDT
BTW, when the pdf loaded on the provided link, all I got was a blank screen...

---
Of course we need to communicate -- that goes without saying!

[ Reply to This | # ]

I think I might be in my red dress soon.
Authored by: hardcode57 on Monday, August 16 2004 @ 11:46 AM EDT
Then can we have a picture of you PJ?

[ Reply to This | # ]

Why is it a "redacted" memorandum?
Authored by: sphealey on Monday, August 16 2004 @ 11:46 AM EDT
Why is it a "redacted" memorandum? Doesn't redacted mean removed?
Did IBM file part of the memo under seal?

sPh

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: Anonymous on Monday, August 16 2004 @ 11:47 AM EDT
When is the Judge supposed to rule on that?

How long untill it's accepted or rejected?

I have a nice bottle of champaigne in the fridge and a copy of SCO Openserver to
frame and hang in my office (with their stock chart as background).

I'm getting thirsty.

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: seanlynch on Monday, August 16 2004 @ 12:05 PM EDT

Did Novell really do what IBM says here:

"1. Novell, which at one time owned all rights in the AT&T agreements at issue, retains the right to waive alleged breaches of the agreements, and Novell has exercised that right to effect a waiver of the alleged breaches in this case. (See Section II.A.)"

I know that Novell made clear to SCO that IBM has the right to use IBM created code under the AT&T agreements, but I don't remember them waiving any alleged breaches of contract.

I remember Nov ell informing SCO that it was acting to override SCO's "termination" of IBM's license, but does that clear IBM from any alleged breach of contract?

I'm not trolling here, I'm just interested in IBM's interpretations of Novell's actions.

I don't think that IBM breached it license, but if any licensee does breach a contract, I didn't think Novell could just waive a breach of contract. That would go for IBM, HP, Sun Microsoft, SCO, DEC (Compaq), Unisys(Are they a UNIX licensee?), anyone.

Can someone with more knowledge and experience in contracts enlighten me why IBM has used these words here? Or maybe I missed that in one of the Novell to SCO letters.

[ Reply to This | # ]

Love to say it....
Authored by: NicholasDonovan on Monday, August 16 2004 @ 12:10 PM EDT
I really believe this looks like the beginning of the end for McBride's legal
charade. The courts look down on this sort of abuse and SCO picked the wrong
company to try this on.


I seriously have to wonder about SCO's board. (or what's left of it)

Why haven't they issued a 'No Confidence' vote in McBride and kicked him to the
curve? In my opinion, his whole tenure as CEO has been a joke.



Nick




---
Not an Attorney.
Views expressed are my personal opinions and not necessarily those of my
employer or its affiliates.

[ Reply to This | # ]

Liars, thieves and SCOckroaches...
Authored by: Anonymous on Monday, August 16 2004 @ 12:14 PM EDT
Some of the procedural mechanics to date in response to the Utah Claim Jumpers
reminded me of Burt Reynolds dancing... like a drunken sailor stamping out
roaches.

This latest move, however, is more along the lines of Gene Kelly.

Rawk On, IBM!

[ Reply to This | # ]

"Anything you can do"
Authored by: DrStupid on Monday, August 16 2004 @ 12:16 PM EDT
I note that on page 17 of the memo, IBM seems to have hired their own MIT-based
expertise. Granted, he's no rocket scientist - just the Professor of Computer
Science and Engineering - but at least we have his name.

[ Reply to This | # ]

Sequent Contract Still A Problem?
Authored by: Anonymous on Monday, August 16 2004 @ 12:16 PM EDT
Allows derivative code, "provided the resulting materials were treated as
part of the Original"

This is the wording of the actual Sequent contract. Aren't the actual contracts
enforcable no matter what the original intent may have been?

[ Reply to This | # ]

MIT scientists are back!
Authored by: AG on Monday, August 16 2004 @ 12:19 PM EDT
But this time its for real. It seems IBM hired Prof. Davis from MIT (see page
24) to do a code comparison. Ohh, the irony ...

[ Reply to This | # ]

MIT Scientist Discovered
Authored by: dmscvc123 on Monday, August 16 2004 @ 12:32 PM EDT
From my post on Yahoo:
It looks like the MIT Scientist was working for IBM, not SCO. From page 17:
"In addition, Dr. Randall Davis, Professor of Computer Science and
Engineering at the Massachusetts Institute of Technology, has analyzed specific
lines of source code from AIX and Dynix that SCO claims IBM contributed to
Linux. As Dr. Davis has concluded, that code does not contain any portion of
Source code from Unix System V and is not substantially similar to any source
code in Unix System V. Accordingly, Dr. Davis Opines that the specific code IBM
allegedly contributed from AIX and Dynix is neither a modification nor a
derivative work of Unix System V."

[ Reply to This | # ]

SCO shares freefall -
Authored by: Anonymous on Monday, August 16 2004 @ 12:33 PM EDT
I've been following the shares since this was announced and you can see how it's
started to freefall.

After a year of FUD we finally see McBribe and his SCOundrils get their dues.
Truth wins again!

This whole thing really shows how important it is to keep your nose above the
water. Had our community been lazy and stolen code it's sure to have found, and
who knows where THAT would have lead us!

My sincere appreciation for the honesty our community has demonstrated! Keep up
the good work!

[ Reply to This | # ]

Wonderful irony!
Authored by: Anonymous on Monday, August 16 2004 @ 12:53 PM EDT
Paragraph 61 made my day.
In response to the FUD surrounding SCO's 'tiger team' of MIT professionals, IBM
had a CS professor at MIT review the alleged code and clear it.

Now _that_ is style.

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: Darkelve on Monday, August 16 2004 @ 12:53 PM EDT
You know when you read titles, you often read something different than what is
there?

Well, I could not help but read (at my first inclinatio): 'IBM Goes For the
Throat'...

Which, after I read it, was quite correct. Joke on PJ's part?

[ Reply to This | # ]

No wonder SCO tried to stop those depositions
Authored by: Jude on Monday, August 16 2004 @ 12:58 PM EDT
Now we know why SCO tried so hard to get those depositions postponed. The
testimony of the AT&T people is utterly devastating to SCO's case.

[ Reply to This | # ]

Counting the remaining dominos
Authored by: Anonymous on Monday, August 16 2004 @ 01:03 PM EDT
A. SCO v IBM
=============

(Numbers correspond to causes of action)

1. Breach of IBM Software Agreement
2. Breach of IBM sublicensing Agreement
3. Breach of Sequent Software Agreement
4. Breach of Sequent Sublicensing Agreement

These all to be under the latest PSJ motion


5. Copyright Infringement

(a) IBM's breaches of the IBM Related Agreements and the Sequent Agreements and
its post-termination actions have infringed, have induced infringement of, and
have contributed to the infringement of, copyright registrations of SCO and its
predecessors. Such actions have been willful and have been done with knowledge
of the copyright rights of SCO.

Item (a) This is vaguely worded paragraph seems to cover two things (i) What IBM
did before SCO purported to terminate (i.e. contribute to Linux), and (ii) What
IBM did after SCO purported to terminate (i.e. continue distributing AIX)

Item (a)(i) would be dealt with by IBM CC 10
Item (a)(ii) would be dealt with by the latest PSJ motion on SCO's caues of
action 1-4


6. Unfair competition:

184. In furtherance of its scheme of unfair competition, IBM has engaged in the
following conduct:

a) Misappropriation of source code, methods, trade secrets
and confidential information of plaintiff;

b) Breach of contract;

c)Violation of confidentiality provisions running to the
benefit of plaintiff;

d) Inducing and encouraging others to violate
confidentiality provisions;

e)Contribution of protected source code and methods for
incorporation into one or more Linux
software releases, intended for transfer of ownership to
the general public;

f) Use of deceptive means and practices in dealing with
plaintiff with respect to its software
development efforts; and

g) Other methods of unlawful and/or unfair competition.


Item (a) can't be proven by SCO, they didn't identify any confidential or
trade secrets that IBM took.

Items (b), (c), (d??) and (e) seem to be dealt with by latest PSJ and PSJ on CC
10

Item (f) relates to IBM allegedly hiding Monterey from SCO. Well, we know IBM
didn't hide anything, and IBM can surely produce SCO documents to prove it

So we are left with Item (g) if anything


7. Interference with Contract

(a), para 190: 190.[sic] IBM, directly and through its Linux distribution
partners, has intentionally and without
justification induced SCOs 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, Auto Zone, among others.


???

8. Interference with Contract

(a) 199.[sic] Specifically, commencing on or about May 2003, Novell began
falsely claiming that Novell,
not SCO, owned the copyrights relating to UNIX System V. On
information and belief, IBM had
induced or otherwise caused Novell to take the position
that Novell owned the copyrights -- a
position that is flatly contradicted by the Asset Purchase
Agreement. Since that time, Novell has
improperly registered the same copyrights that it sold to
SCO and that SCO had previously
registered.

(b) 200.[sic] In addition, IBM intentionally and improperly interfered with the
Asset Purchase Agreement
by inducing or otherwise causing Novell to violate the
Asset Purchase Agreement by claiming Novell
could waive and was waiving breaches of license agreements
by various licensees, including IBM.
Specifically, with the IBM Termination Date looming only
days away, Novell wrote to SCO claiming
that either SCO must waive its right to terminate IBM's
license based upon IBM's numerous
breaches thereof or else Novell would purportedly waive
SCO's right to terminate the license and
otherwise excuse IBM's numerous breaches of the license
agreements.

Item (a) would seem to be going no where, especially if Novell wins the
dismissal with prejudice. Can IBM interfere with a Novell contract if SCO can
not prove that Novell breached it in this respect

item (b) is already part of the latest PSJ motion



9. Interference with Business Relationships

(a) IBM has intentionally interfered with plaintiff's existing or potential
economic relations. For
example, at Linux World in January, 2003 IBM
representatives contacted various companies with
whom SCO had existing or potential economic relations.
These IBM representatives said that IBM
was discontinuing doing business with SCO and that these
other companies, some of whom are
business partners with IBM, also should discontinue doing
business with SCO.


????



B. IBM v SCO
=============

(Numbers correspond to causes of action)
(n.b. I copied items 1 to 8 accidentally from an earlier version, and didn't
correct, so there may be very *slight* misquotes of IBM's arguments, but the
core point remain the same)

1. Breach Of Contract (IBM-AT&T agreements)

(a) IBM alleges that SCO has breached by purporting to terminate IBM's license
(SCO admits that it has purported to terminate IBM's license)

(b) IBM alleges it has not breached the contract itself

(c) IBM alleges that SCO has broken implied convenant of good faith, and by
making false and misleading statements

Item (b) would be presumably proven by the latest PSJ motion if granted
Item (a) would be presumably proven by (a) + latest PSJ motion
Item (c) seems to be a natural consequence


2. Lanham Act relating to IBM's Linux, and AIX products and services

(a) IBM alleges "Specifically, SCO has publicly misrepresented the
legitimacy of these products and services by falsely representing that IBM no
longer has the right, authority and license to use, produce and distribute these
products and by misrepresenting SCO's own rights in and to UNIX, AIX, Dynix and
Linux."

Item (a) in respect of AIX and Dynix would presumably be proven by the latest
PSJ if granted,
Item (a) in respect of Linux would be presumably be proven by PSJ on IBM CC 10
if granted

3. Unfair competition

(a) IBM alleges SCO has made false claims about AIX, Dynix and Linux

Item (a) in respect of AIX and Dynix would presumably be proven by the latest
PSJ if granted,
Item (a) in respect of Linux would be presumably be proven by PSJ on IBM CC 10
if granted


4. Intentional Interference with Prospective Economic Relations

(a) IBM alleges SCO has made false claims about AIX, Dynix and Linux

Item (a) in respect of AIX and Dynix would presumably be proven by the latest
PSJ if granted,
Item (a) in respect of Linux would be presumably be proven by PSJ on IBM CC 10
if granted

5. Unfair and Deceptive Trade Practises

(a) IBM alleges SCO has made false claims about AIX, Dynix and Linux

Item (a) in respect of AIX and Dynix would presumably be proven by the latest
PSJ if granted,
Item (a) in respect of Linux would be presumably be proven by PSJ on IBM CC 10
if granted


6. Breach Of GNU GPL

(a) IBM alleges "SCO has breached the GPL by, among
other things, copying, modifying, sublicensing or distributing programs licensed
under the GPL, including IBM contributions, on terms inconsistent with those set
out in the GPL; and seeking to impose additional restrictions on the recipients
of programs licensed under the GPL, including IBM contributions, distributed by
SCO."

Item (a) would seem to flow from IBM CC 10, and the latest PSJ motion - in that
IBM owns it own code and determines how it licenses it


7. Promissory Estoppel

(a) IBM alleges SCO made a clear and unambiguous promise to IBM and others that
SCO would copy, modify or distribute programs distributed by IBM and others
under the GPL only on the terms set out in the GPL; and would not assert rights
to programs distributed by SCO under the GPL except on the terms set out in the
GPL.

??? This seems to be a domino not directly related to the current motions ???


8. Copyright infringement

(a) IBM alleges SCO has infringed and is infringing IBM's copyrights by copying,
modifying, sublicensing and/or distributing Linux products except as expressly
provided under the GPL.

Item (a) would seem to flow from IBM CC 10, and the latest PSJ motion - in that
IBM owns it own code and determines how it licenses it


9. Declaratory Judgment of Noninfringement of Copyrights

(a) IBM alleges: SCO has sued IBM claiming that IBM has infringed, induced the
infringement of, and contributed to the infringement of, SCO's purported UNIX
copyrights by, among other things, continuing to "reproduce, prepare
derivative works of, and distribute copyrighted UNIX materials through its
activities relating to AIX and Dynix.

Item (a) would seem to flow from the latest PSJ motion. IBM have a license to
the materials even if SCO holds the copyrights


10. Declaratory Judgment of Noninfringement of Copyrights

(a) This relates to IBM's Linux activities,

And is already the subject of pending PSJ motion.


11.-13. Patent Infringement

No comment


14. Declaratory judgement

This is in large part a summary of earlier causes of action




Quatermass
IANAL IMHO

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: techgrrl on Monday, August 16 2004 @ 01:05 PM EDT
WOW!!! Talk about nailing the coffin shut with spikes, then wrapping steel
bands around it, then encasing it in cement!!!! All prior to dumping it
overboard into the deepest part of the ocean...

PJ can comment, because IANAL, but the fact that IBM keeps making references to
"as a matter of law" is to insure that the JUDGE makes this decision,
not a jury, right?

---
Reality is for those who can't handle science fiction

[ Reply to This | # ]

Red Dress
Authored by: kuwan on Monday, August 16 2004 @ 01:08 PM EDT

If IBM wins this motion, I think I might be in my red dress soon.

So will we ever be able to see you in that red dress? ;)

Just kidding. But really, great work on this PJ! It looks like you scooped even the Yahoo board, which usually finds stuff like this first.

Great work on everything! Keep it up, things should get pretty exciting really quick.

[ Reply to This | # ]

First PSJ set up for this one?
Authored by: reuben on Monday, August 16 2004 @ 01:08 PM EDT
It looks to me like the first motion for PSJ was a beautiful set-up for this
one. It's been increasingly clear since the December hearing that the only
claim SCO really intended to follow through was this one, the "all of AIX
and Dynix" copyright claim. All the others were just sideline
distractions, as we started to see when K. McBride casually admitted that System
V contained no trade secrets at all.

Up until now IBM has at various times agressively pushed on parts of the case,
and SCO has retreated. This happened with the trade secret claims, which IBM
initially took to be the center of the case. IBM's first responses emphasized
the lack of trade secrets, and SCO had to back off of them. With the first
motion for PSJ, SCO has basically given up the Linux-related copyright issues
too. IBM has methodically forced SCO to abandon all of these side issues and
cling to the contract claims. And now we finally get to see how ready IBM was
for this claim.

Now it makes sense to me why IBM was willing to spend so long on the small
stuff.

[ Reply to This | # ]

SCO Waived Its Rights
Authored by: dmscvc123 on Monday, August 16 2004 @ 01:10 PM EDT
Even if SCO had a claim, they waived it by continuing to distribute Linux.
According to IBM's filing, the 2.4 kernel is still available for downloading
from SCO.

[ Reply to This | # ]

The newsletter
Authored by: Anonymous on Monday, August 16 2004 @ 01:11 PM EDT
On page 63 of the memo under "Documentary Evidence" IBM mentions the
AT&T newsletter that specifically disavows any claim to its customers'
homegrown code.

Has SCO ever made any reply to this point? It seems to totally kill their
derivative works argument.

[ Reply to This | # ]

I'll bet Steve Ballmer is thinking ....
Authored by: clark_kent on Monday, August 16 2004 @ 01:12 PM EDT
When should we buy SCO? They are dropping the ball on crushing Linux big-time.
But we don't want an IP fight nor another long drawn out litigation with IBM as
we have in the past. We couldn't shut them down. And heavens no, do we want the
Unix world to resurrect itself and become actual competition on our desktop
space as well as Unix for general purposes in our server space. We can't compete
against the forces of many. I like this little world Bill and I have made.

Oh what to do, what to do ...

[ Reply to This | # ]

Exhibit A is a decision by none other Kimball himself
Authored by: Anonymous on Monday, August 16 2004 @ 01:14 PM EDT
Did anyone else notice that IBM is using a previous decision by Kimball on the
appropriateness of Summary Judgement in this case?

Exhibit A - Pg 86 of the PDF file

"Your Honor, this is the sort of thing you've said was appropriate for
Summary Judgement before"

Gotta love it.

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: ujay on Monday, August 16 2004 @ 01:17 PM EDT
That was one long and informative read. Taking the depositions of all the
signatories to the AT&T Licences, with their intentions places the onus on
proving Sytem V code, and not derivitives, which clearly remain the property of
the authors to do with as they please.

The case is resolved to
p -> q
If System V in Linux (p) -> IBM is guilty (q)

SCO already has stated that there is no System V code involved.

While ~p does not imply ~q, without any further factual evidence pointing to
q, the case is over.


Is it safe to say that IBM has finally put the elastic band to SCO's bull?



---
Windows - How do you want to be exploited today.

[ Reply to This | # ]

IBM Goes For the Jugular -- With a Sense of Humor
Authored by: gotan on Monday, August 16 2004 @ 01:28 PM EDT
Thumbs up to the IBM guys & dolls for submitting this on Friday the 13th!. Well it made me chuckle :)

[ Reply to This | # ]

Scoop!
Authored by: overshoot on Monday, August 16 2004 @ 01:31 PM EDT
OK, PJ, if you can tell us:

Where'd this come from? Neither tuxrocks nor petrofsky seem to have it yet. Have you acquired an expedited source, and if so can we have the opportunity to thank said benefactor?

[ Reply to This | # ]

So what if...?
Authored by: texasaggie on Monday, August 16 2004 @ 01:31 PM EDT
So if and when a ruling comes down granting PSJ, if it relies solely on the fact
that Novell intervened (which seems to be the easy way out), wouldn't that still
leave the question of derivatives open? It would be nice to get a ruling that
answered these questions so that we don't have to do this all over again with
another company.

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: Anonymous on Monday, August 16 2004 @ 01:39 PM EDT
SCO was *still* offering the Linux 2.4 kernel for download, the very code it is suing IBM over.
What if SCO stopped offering this code? Could any owner of SCO Linux binaries sue SCO for not holding up to the GPL? jerome_at_coffeebreaks_org

[ Reply to This | # ]

Case solved right here...
Authored by: Anonymous on Monday, August 16 2004 @ 01:40 PM EDT
They should use this simple analogy to explain the terms...
  • Take a piece of paper that has two paragraphs of text typed on it.
  • The first paragraph was written by IBM.
  • The second paragraph was written by AT&T and is System V source code.
  • These paragraphs together tell a short story about a man named Darl. Whos career, in anything, quickly flushed away.
Now...
  • The license prohibits revealing the page as a whole because an AT&T paragraph is exposed.
  • The license definitely prohibits revealing just paragraph two. AT&T wrote it.
  • The license does not prohibit revealing only paragraph one. IBM wrote it.
Any questions? :) Dude

[ Reply to This | # ]

A guess as to SCO's response(s)
Authored by: Anonymous on Monday, August 16 2004 @ 01:41 PM EDT
First, they are going to agree that the language of the
contract is 'unambiguous'. As such, they'll claim that
the contemporaneous documentary evidence, as well as the
AT&T depositions are... irrelevant. They'll argue that
the *unambiguous* terms of the 'related materials'
sentence supports only their interpretation.

Next, they'll quibble over the AT&T depositions and
probably assert IBM coercion of the executives involved.
And they'll say that IBM wasn't aware of the
contemporaneous documentary evidence (ie, the echo
newsletter) so they can't rely on that as a get out of
jail free card. Similarly, they'll say that the modified
language was only meant to 'clarify' and as the language
of the original was 'unambiguous'... the clarifying
language is wrong -- and more importantly -- irrelevant.

As for the 'patently unreasonable' claim, they'll argue
that it isn't. Watch for them to cry and bemoan that IBM
is putting words into their mouth when IBM uses language
such as, "SCO's interpretation asserts that third party
software would also be included under the protected
SOFTWARE PRODUCT" ... They'll say that isn't their
interpretation and then argue that this is all perfectly
reasonable.

Finally, they'll say that their continued distribution of
the Linux kernel 2.4 with JFS et al, does not waive their
rights, because they didn't know that their rights had
been broken up to and until they stopped distributing it
and that previous customer commitments required them to
continue distributing it.

In order for SCO to succeed they'll need the judge to
completely bury his head in the sand and agree that the
language is unambiguously in favor of SCO's interpretation
and the rest is all irrelevant. Fat chance of that
happening. NO FREAKING WAY it will survive appeal even if
the judge does completely lose it.

PJ, what say you? Do I have them pegged or what?

[ Reply to This | # ]

I'm so foolish...
Authored by: GLJason on Monday, August 16 2004 @ 01:55 PM EDT
I have been aggravated for months. I couldn't figure out why IBM didn't just tell everyone "SCOX's interpretation of the contract is stupid." I thought, "What?!? Am I taking crazy pills?!?"

Now I finally understand. IBM and their lawyers were just getting all of their ducks in a row. They've spent the months since the "ladder" bullcrap was said in court preparing for this motion. As you read through it, every quote is another nail in SCO's coffin. Well done!

[ Reply to This | # ]

Plain and Unambiguous Terms -- New York Law
Authored by: SCO_Shill on Monday, August 16 2004 @ 02:06 PM EDT
See page 49 of the article (page 56 of 100 for the pdf file).

IBM makes the case that, under New York law (see the choice of law rules
footnote), the contract issue at hand is plain and unambiguous. IANAL, but I
read the whole thing, and it seemed pretty plain and unambiguous to me. I don't
think the Judge can rule on anything outside of that... the case is a
contractual one now, despite all the SCO FUD (and original claims).

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: blacklight on Monday, August 16 2004 @ 02:13 PM EDT
AS IBM and the groklaw community wrap their hands around SCOG's legal throat
and choke the life out of it, I can only reflect philosophically that this sort
of tough accidents happen to SCOG when SCOG and the Open Source community - of
which IBM is a legitimate, full-fledged member in good standing, fail to
communicate. Crocodile tears, anyone?

[ Reply to This | # ]

TheReg: Newham and Microsoft sign 10-yr deal
Authored by: Darkelve on Monday, August 16 2004 @ 02:25 PM EDT
See:

http://www.theregister.co.uk/2004/08/16/msoft_newham_10yr_deal/

Extract:
"One final point to note is that Newham will be using Internet Explorer.
Steel explained that this is because Microsoft is VERY SERIOUS {emphasis mine}
about addressing security concerns."

HAHAHAHAaahaahaaaaaaaaaaahaaaaaaaaaaaaaahaaaaaaaaa!!! ROFLMAO!

Actually it is a pretty sad story, lots of FUD in there, but that last paragraph
is just ridiculous...

[ Reply to This | # ]

Love a good boxing match...
Authored by: Anonymous on Monday, August 16 2004 @ 02:36 PM EDT
Unfortunately, in this one SCOG is outclassed.

Round1
SCOG started fast with a lot of movement, copyright claims, millions of lines of
code, but not landing any solid shots. IBM content to parry and look for
openings.

Round2
IBM picks up the pace, demanding evidence. SCOG unable to respond is backed to
the ropes and reduced to swinging wildly then clinching and holding on to buy
time. SCOG tries to rally by amending claims, but flaws in their defense are
becoming apparent. After motion to compel by IBM, the referee orders SCOG to
produce with specificity. SCOG unable to respond.

Round3
IBM attacks hard. Counterclaim #10 is a stiff jab/uppercut combination which IBM
follows up with a hard left hook in the form of a motion for PSJ on copyright
claims. SCOG flails wildly, trying to fend IBM off with overlength memos and low
blows about dicovery abuse. IBM pounds away at the copyright claims, and the
referee again orders SCOG to comply. Returning to the corner at the bell, SCOG
appeared dazed, mumbling incoherently about "good faith".

Round4
As SCOG tris to feint newly discovered infringements and more overlength memos,
IBM blocks the shots with motions to strike, and counters with well placed shots
to the head, exposing SCOG's misdirection and lack of evidence. SCOG still
clinching and holding on. Suddenly, just before the bell to end the round, IBM
switches tactics and deliveres a solid combination to the body with a motion for
PSJ on the contract claims.

We're now in the corner between rounds. IBM is looking confident, fit and
fresh.

The SCOG cornerman is pulling his hair out and frantically dumping ice into
SCOG's shorts, as Darl, dazed and confused babbles aimlessly about their 25
years of dedicated UNIX service and getting the facts to the jury...

My prediction: a couple more rounds max. This ain't gonna go the distance.

[ Reply to This | # ]

SCO != Santa Cruz
Authored by: markhh on Monday, August 16 2004 @ 02:43 PM EDT
SCO is not (necessarily) Santa Cruz

I love the way in para 27 and 28, IBM still has reservations about whether SCO
even "owns" the license.

[ Reply to This | # ]

Question on depositions -- cross examination?
Authored by: Anonymous on Monday, August 16 2004 @ 03:03 PM EDT
The devastating depositions quoted in this motion for PSJ were attended by SCO
attorneys. My question is, "Do the SCO attorneys get a chance to
cross-examine these witnesses during the deposition?" If so, the SCO
response will probably contain quotes from this cross-examination, most likely
taken out of context, attempting to show some ambiguity in the situation.

Thad Beier

[ Reply to This | # ]

One word response from McBride ...
Authored by: jbb on Monday, August 16 2004 @ 03:07 PM EDT
D'oh!

[ Reply to This | # ]

Declarations
Authored by: reuben on Monday, August 16 2004 @ 03:09 PM EDT
IBM refers to some declarations here that I haven't heard of before. Do we have
the docket listings up through this motion? I don't see a docket number on this
one at all.

[ Reply to This | # ]

that just made my day
Authored by: arrg on Monday, August 16 2004 @ 03:13 PM EDT
:)

---
Time is funny stuff, space has it's points too.... - Hap

[ Reply to This | # ]

Multiple Stab Wounds
Authored by: Anonymous on Monday, August 16 2004 @ 03:19 PM EDT
Is it just me, or were the IBM lawyers repeating themselves over, and over, and
over, and over....

After this filing, SCOG ends up looking like one of Freddy Kreuger's victims.

And the lawyers are filing motions to tap dance on SCOG's grave too... (oh,
wait, that could possibly be seen as a threat, somebody hide Rob and Darl's eyes
and hand them their blankies)

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: Anonymous on Monday, August 16 2004 @ 03:22 PM EDT
> There actually is no longer an "AI Lab" at MIT

Hehe, I guess you're jobless then. On your homepage you
still say you're working there ;-)

Cheers,
Reinhold

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: Anonymous on Monday, August 16 2004 @ 03:26 PM EDT
I love how their lawyers have such a sense of humor, god bless Cravath.
B-C-D-E-F-G-H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z-AA-BB-CC......

<3 CRAVATH.

[ Reply to This | # ]

TRANSCRIPTION CLAIMS here: (pls)
Authored by: sjgibbs on Monday, August 16 2004 @ 03:41 PM EDT

I've picked 20->25 randomly, eta about 0000 GMT.

[ Reply to This | # ]

IBM's plan is now clear
Authored by: pooky on Monday, August 16 2004 @ 03:55 PM EDT
After reading the motion, the plan is now clear. IBM's legal team has been
operating under the theory that any breach of it's licensing agreement has to
stem from contributing UNIX System V code directly to Linux. They've made the
argument here that no one can reasonably interpret the License Agreement to mean
that anything IBM develops and places in AIX is governed by the license
agreement as logn as it contains no UNIX System V code.

IBM proded SCO to admit in court that there was no UNIX System V code in Linux
and that they didn't have to show any to support their claim. Oops. Looks like
they do.

It appears to be a very solid case for PSJ to toss the contract violation
claims, and the copyright infringement claim along with it (can't have damages
arising from a license termination that there was no cause to terminate).

If they win this and Novell wins their motion, thereby tossing the copyright
ownership into a realm that will not be decided by *this* court case, SCO is
only left with a claim that IBM is interfering with it's business. No multi
billion dollar damage awards and NO fear for Linux users that SCO has rights to
any code in the Linux OS.

Can SCO elect to change their stock ticker from "SCOX" to
"BOOM"?

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims
Authored by: jim Reiter on Monday, August 16 2004 @ 04:31 PM EDT
taking everything else into consideration, were (new) SCO
aka SCOG/TSG/Caldera successful in raising some doubt over
a language or interpretation issue, they would still have
to overcome the rights Novell retained over the IBM
license.

It appears that Novell has placed (new) SCO aka
SCOG/TSG/Caldera in breech of contract.

Still no buy out offer for (new) SCO aka SCOG/TSG/Caldera?
Is anyone surprised?

[ Reply to This | # ]

Boring -- Bring back DC!
Authored by: Anonymous on Monday, August 16 2004 @ 04:32 PM EDT
Jeez. The Daimler Chrysler motion for PSJ, and the motion to discredit the SCOX declaration, were surgical, things of beauty. Analogy would be watching a sharp stake driven through a vampire's heart. This IBM motion, in contrast, is brutal, ugly, thorough -- like watching a slug under a pile driver. For a couple of hours. With a macro telephoto lens.

Seems like anybody foolish enough to go into court against IBM should be Mirandized -- "Anything you say can and will be held against you."

OTOH, can we set up a pool for how long SCOX' overlength reply will be? I want 175 pages or so!

[ Reply to This | # ]

A hamhanded summary
Authored by: Anonymous on Monday, August 16 2004 @ 04:42 PM EDT
For those who don't want to read 84 pages of legal speak(although you should
because it's a beautiful piece of lawyering IMHO),

1) Your honor this contract is so clear only a 2 year old
could misread it, not saying your a 2 year old your honor but we don't hold out
any hope for those goofs over at SCO. As such SCO has no case since the contract
covers at best the total release of AIX and Dynix, which SCO admits we didn't
do. So there's nothing here under dispute.
2) In the event you think the contract is ambiguous(which it isn't), here's all
this supporting evidence as to its true meaning. All these affidavits from the
people who actually were part of negotiations show what AT&T and IBM thought
about the contract, and all of them think that SCO is clearly on crack. Since
all the evidence points to an interpretation that supports us there's no way
that SCO can win, so it's appropriate for you to find against them at this
point. Oh, and here's a previous ruling by you that supports our
interpretation.
3) Furthermore, even if the contract is ambiguous(oh have we mentioned that it
isn't), the ambiguity works against SCO since they were the ones who wrote
it(AT&T did but SCO is claiming all their contract rights). Here's the
relevant case law that indicates ambiguities must be interpreted against the
party writing the contract, so it's SCO's fault if there's any ambiguity in the
contract.
4) Further, furthermore, to the extent the contract is ambiguous(we did mention
that it isn't right?), the court must interpret the contract in such a way that
it doesn't lead to a farcical situation. The idea that SCO would have control
over all of our code, all of HP's code, all of Sun's code and all of SGI's code
which SCO had absolutely nothing to do with is totally ridiculous. Thus you
can't possibly believe the contract is supposed to be read that way.
5) Even if you don't buy everything else we've said, Novell has cleared us of
all wrong doing(to the extent that any might have occured but none has) by
issuing this waiver which their contract with SCO grants them the rights to do.
6) If you could possibly need more reason to toss SCO lawyers and CEO's out on
their butt and have them flogged here's something really ridiculous. SCO
themselves have been giving away OUR code and getting benefit of it and they
haven't complained before. In fact as far as we know they are still doing it.
How can they market our code and try to make money from it AND claim we breached
a contract. Clearly they are idiots over there.

Editor's further commentary...

I especially loved point 3 about any ambiguity working against SCO since
they(actually AT&T but SCO is claiming to be AT&T for this lawsuit) are
the ones who wrote the contract. IBM has SCO coming and going, first they show
that there's no ambiguity, than if SCO disputes this and tries to claim there
is(even after all the affidavits are filed) they still can't win because the
ambiguity must work against SCO since they are the ones who wrote the contract.
To me, this is IBM basically saying to SCO 'firetruck you and the donkey you
rode in on'(I apologize for the almost vulgar nature of this characterization
but really at this point somebody has to tell SCO where to get off...).

I realize that there's tonnes of lawyering yet to go before this motion is heard
but if SCO's lawyers can get this thing to trial I will take my hat off to
them(not SCO just their lawyers).

Gerry

[ Reply to This | # ]

Same "writing" issue, different case?
Authored by: Anonymous on Monday, August 16 2004 @ 05:04 PM EDT
While not explicitly referenced, it appears that the argument against
interpretation of the contract as restricting anything past, present, or future
that has been combined with AT&T code, becomes an issue of transfer of
copyrights, which requires an instrument of writing similar to the APA.

And, as we have seen (in the Novell case, is it?), if it isn't specific enough,
bullet-proof, inside-the-four-corners, reasonable, etc., or supported by both
parties as having the same intent, then no transfer can have occurred.

Basically, that to restrict copyright of work *created by IBM or Sequent*, there
had to have been a 204(a) writing, and that the license agreement wasn't such a
writing.

Which basically, in and of itself, cuts SCOG's case off at the knees (or perhaps
the neck?).

Am I right in reading that as the meaning of the argument surrounding the
Encyclopedia stuff?

briand

[ Reply to This | # ]

This isn't the Jugular -- Yet
Authored by: MikeA on Monday, August 16 2004 @ 05:09 PM EDT
I respectfully disagree with the title of this article. I don't think this is IBM's way of "going for the jugular". This is IBM's way of doing due diligence.

When the counterclaims begin, THAT will be going for the jugular.

---
Change is merely the opportunity for improvement.....
but I can't think of a better signature yet.

[ Reply to This | # ]

SCO Changes their web page...
Authored by: Eeyore on Monday, August 16 2004 @ 05:19 PM EDT
Out of curiosity, I went out to SCO's web site and did a search for "ibm case". One of the first hits was the "SCO Intellectual Property License for Linux Frequently Asked Questions" page. Oddly enough, it showed up with todays date on it. When I did a search on that page I came up with this (everyone may have already seen this, but if not):
14. How can SCO expect me to purchase a license when its case with IBM hasnt been resolved yet? What if SCO loses its case against IBM? Will it reimburse Linux customers who purchased a SCO IP License for Linux?

Some Linux users have the misunderstanding that the SCO IP License for Linux hinges on the outcome of the SCO vs. IBM case. If that case were completely removed, Linux end users would still need to purchase a license from SCO to use the SCO IP found in Linux. The IBM case surrounds mis-use of derivative works of SCO UNIX. It does not change the fact that line-by-line SCO IP code is found in Linux.

Does anyone else suspect that maybe SCO is starting to see the handwriting on the wall?

My real question is does anyone have a copy of that page to compare to so we can see what SCO actually changed today (for some reason SCO doesn't show up on web.archive.org). :)

[ Reply to This | # ]

Linux keyboard from Cherry
Authored by: m_si_M on Monday, August 16 2004 @ 05:19 PM EDT
According to heise, the German Cherry GmbH has announced the release of keyboard especially designed for use with Linux. Cherry will work with SuSE. Their goal is to provide Linux users with the same conveniences with respect to keyboards MS users enjoy already for years.

[ Reply to This | # ]

  • Sorry... - Authored by: m_si_M on Monday, August 16 2004 @ 05:38 PM EDT
PowerPoint of Sontag Presentation From SCO's site
Authored by: Eeyore on Monday, August 16 2004 @ 05:42 PM EDT
I found this intersting too.... Link. Sorry, it's been IE'ed - Mozilla will show it but it will complain.

[ Reply to This | # ]

Here we go; IBM just invalidated the heart of the GPL
Authored by: Jeff Carr on Monday, August 16 2004 @ 05:53 PM EDT
From page 71 (start reading at page 67 C.):

"Under the copyright law, therefore, it is well-settled that the author of
a derivative work has the right to copyright (and thus control the copying and
distribution of) any of its own original materials in the derivative work, but
has no rights with respect to the preexisting materials. It is also settled that
the author of the preexisting materials does not have any rights in the
newly-created derivative work, except to the extent of the preexisting materials
contained therein."

This is what IP advocates want. Invalidation of this aspect of the GPL so all we
legally can do is BSD type licenses. That way, everyone can just happily steal
GPL code, add your own proprietary changes and release only the GPL sources for
your product. Now this interrpretation of copyright law has just be used in a
case! I hope that I'm just understanding this incorrectly. Part of me things
this might not have been a complete mistake though.

<tinfoil hat on ?> I've been saying this for years. IBM & Microsoft
both dislike the GPL; whereas they both could likely learn to live with BSD-like
licenses. Those licenses allow proprietary products to compete on the same
codebase without really sharing your IP(aka code). Apple's MacOS X is a perfect
example and that's one reason they used BSD. If you think the SCO lawsuit is
ugly, wait until IBM violates the GPL. <tinfoil hat off ?>

Hopefully someone that understands the law better than me will help me
understand how the GPL isn't hurt by this logic.
--Jeff Carr

[ Reply to This | # ]

Wow! What a stinger...
Authored by: kberrien on Monday, August 16 2004 @ 06:15 PM EDT
Single sided, PDF printout is around 1" thick! Granted I'm seeing one side, but appears to be a damning document.

When SCO started with the derivative works argument I was a little leary, grey areas can be dangerous. However, the counter fishing expedition has landed solidly in IBM's court. No wonder the desire to delay these deps by SCO.

Here is a WOW bit:

"IBM keeps insisting on something that is not part of SCO's claims, so it should come as no surprise that files or lines of code in System V have not been identified". pg 52.

This is a direct quote from a SCO document apprently! Lets compare this with the presently posted SCOSource FAQ (as pointed out by a previous poster), I checked it myself.

http://www.sco.com/scosource/linuxlicensefaq.html (text/html) Thu, 12 Aug 2004 07:01:14 GMT, 38934 bytes

"During the period that SCO distributed Linux (2001 to 2003), SCO was unaware of the copyright violations."

"SCO does have a problem when proprietary software begins to show up illegally in open source software."

"Since SCO has discovered UNIX System Intellectual property in Linux, SCO has taken 2 actions:"

"The IBM case surrounds misuse of derivative works of SCO UNIX. It does not change the fact that line-by-line SCO IP code is found in Linux. The copied code includes copyrighted headers and other proprietary UNIX source code."

Now, I'd asume SCO would point out that all this isn't the result of IBM, and is not part of THAT lawsuit, of course forgetting past charges and public statements.

So, if SCO's case against IBM doesn't require showing code, say for copyright violations, as they say, should they not be telling the RH judge about statments from their FAQ like "SCO was unaware of the copyright violations." which are not part of the IBM case? Does Red Hat not have a right to resolve these?

So SCO still claims publically there are copyright violations.

They still claim "line for line copying"

From the IBM filing: (pg 11, pt. 39)
"In addition, SCO clarified that the basis of its contract claims against IBM was not that IBM contributed to Linux code that had been literally copied form Unix System V, but had instead ... derived from.."

This is in reference from the Dec 5th 2003 hearing, short of digging up the transcript, I guess this is in jist what SCO said.

So SCO may but toning down, they may be walking back from their previous claims in public & court. But they sure still NOT in their SCOSource FAQ?

If anyone wants a good project, debunking the FAQ with SCO quotes, court documents would be nice to read...

Nice filing IBM, nice to see you dispell SCO's contention of the viral nature of Sys V licenses!

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: Anonymous on Monday, August 16 2004 @ 06:33 PM EDT
I would like to add my two cents, This whole thing has bothered me for quite
some time, althought why is beyond me. I am just a programmer working in
Washington State, I don't care for the fact the M$ has the programming world by
the neck, but when "they" start to get in the way of my doing my job,
then it is a bother. But look at what a large group of progammers have
accomplished, thanks to the one person initiating a little operating system
called LUNIX, god love those penguins.

But let's remember that the war is not won, just one battle. Corporate America
will continue to want to make money and put down those that want to do something
for the love of it.

Thanks PJ. Thanks all you programmers out there.

Happy 35th anniversary of Woodstock.

wb

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: Rob_B on Monday, August 16 2004 @ 06:35 PM EDT
Item 28 on P16 indicates that Caldera didn't change it's name to SCO until May
2003. I thought the name change happened prior to their filing suit against IBM.
Was it just a paperwork issue?

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: jre on Monday, August 16 2004 @ 06:54 PM EDT
In all, this is a breathtaking document.

Every now and then, I try to see past my biases by imagining myself on the other side.
I can (with some effort) imagine what it would be like if SCO were to introduce a motion as cogently argued and powerfully supported by the evidence as this one. It would be depressing, indeed!

So let's all breathe a prayer of thanks to our respective deities, spirits or organizing principles that we are on the same side as the truth, and that the law is not an enemy of common sense.

Speaking of which, here's a delicious example. From IBM's memorandum, we have a straightforward assertion that the law does not work to produce a goofy result:
According to SCO, just because a third party licenses code ... to IBM, and IBM includes such code in AIX or DYNIX, SCO gets to dictate forever after the use and disclosure of that third party's code by IBM. That is plainly unreasonable.
...
This would mean that SCO has the right to control ... Hewlett-Packard's HP-UX operating system and SGI's IRIX system, among others.
But wait -- could anyone have ever said anything so patently silly? Using the inimitable Groklaw quote database, we find that someone did:
Off the tree trunk, you have a number of branches, and these are the various flavors of Unix. HP-UX, IBM's AIX, Sun Solaris, Fujitsu, NEC--there are a number of flavors out there. SCO has a couple of flavors, too, called OpenServer and UnixWare. But don't confuse the branches with the trunk. The System 5 source code, that is really the area that gives us incredible rights, because it includes the control rights on the derivative works that branch off from that trunk.
-- Darl McBride, 2003-06-16
It's kind of like shooting fish in a barrel, actually.

[ Reply to This | # ]

Agreement Ambiguous and Unambiguous at the same time
Authored by: trs on Monday, August 16 2004 @ 07:01 PM EDT
I've seen several posts on here as to what would happen if SCO argued about
whether the agreement is amiguous or not. The general consensus seems to be that
they either fry or burn depending upon on whether they argue ambiguous or
unambiguous.

However, I haven't seen any mention of the fact that IBM effectively had 2
different agreements with AT&T. These are SOFT-00015 with side letter and
SOFT-000321 without side letter (the Sequent one).

Does the fact that there are 2 agreements make any difference and could SCO make
any sort of mileage out of this?

[ Reply to This | # ]

Orbital Corrections
Authored by: overshoot on Monday, August 16 2004 @ 07:05 PM EDT
This looks very much as though IBM has spent the last year making careful corrections to the orbits of at least two asteroids.

The effect takes a while to happen, but whoa, Nellie! when it does ...

[ Reply to This | # ]

Prediction: Baystar will launch suit as soon as the summary judgement is entered
Authored by: Anonymous on Monday, August 16 2004 @ 07:37 PM EDT
Baystar is simply trying to maximize gains.

If the summary judgement occurs, Baystar's value is maximized by stripping the
residual cash from the corpse before Darl finds a way to spend it.

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: eggplant37 on Monday, August 16 2004 @ 07:52 PM EDT
After listening to Mssrs McBride, Sontag and Stowell, et.al., voice over and
over again for the last 18 months about how SCOX owned all the source code that
ever came into contact with UNIX SVR$X, I'm wondering if they would like a
little ketchup to go with that shoe leather?

[ Reply to This | # ]

SCO's counter argument - I laughed so much it hurt
Authored by: Anonymous on Monday, August 16 2004 @ 07:59 PM EDT
Okay, here's SCO counter argument

Before anybody says that this is just their media fluff, and that might come up
with a better argument. I'll agree to a limited extent, but I'd also like to
point out:

(1) This is apparently the best answer they have been able to come up with 3
days thinking (note: they declined to comment to IDG, before they had this
answer)

(2) They have actually **ALREADY** used this argument in other filings


In other words, SCO's counter-argument boils down to:
- ignore the plain language of the contracts,
- ignore the testimony of everybody involved,
- ignore the supporting contemporaneous documents
- accept only SCO's interpretation of the contracts, based on the principle it
doesn't make sense to SCO, if they don't mean what SCO wants them to mean

Quatermass
IANAL IMHO

Anyway here is the quote:

http://news.com.com/IBM+strikes+at+SCO+claims/2100-7344_3-5312087.html

SCO disputed IBM's arguments. "SCO disagrees with IBM's interpretation of
their contractual obligations regarding derivative
works," the company said in a statement. "According to IBM's
interpretation from their most recent filing, the 1985 Unix
software agreement would provide less intellectual-property protection than if
no contract had been written at all. We look
forward to proving our case in a court of law in the near future."

[ Reply to This | # ]

SCO's Dilemma - Ambiguous on Unambiguous
Authored by: gvc on Monday, August 16 2004 @ 08:50 PM EDT
SCO's response to IBM's interpretation of the contract may have a huge bearing
on how this plays out.

SCO have two choices:

(1) Claim the contract unambiguously supports their interpretation, so all
the contrary evidence should be discounted. This buys them a summary
judgement, one way or the other. No more delay.

(2) Claim the contract is ambiguous. More delay (if the court concurs), but
directly contrary to their public assertion that they wish the contract to speak
for itself. They get the delay they want, but certain defeat, as they will be
admitting the necessity of external evidence, which is solidly against them.

So their faint hope for a win rests with (1) while their best hope at delay
rests with (2).

I bet they'll choose (2). In any event, IBM has boxed them in very cleverly.

[ Reply to This | # ]

Getting pounded into the ground....
Authored by: Latesigner on Monday, August 16 2004 @ 08:51 PM EDT
Nazgul carpet bombing.

[ Reply to This | # ]

Para 20 - IBM NOT contesting SCOX "ownership"
Authored by: fjaffe on Monday, August 16 2004 @ 08:57 PM EDT
I find paragraph 20 of the complaint interesting, in that IBM allows that SCO (ok, Santa Cruz) purchased "UNIX assets", as opposed to the licensing business.
20. In 1995, Novell sold certain of the UNIX assets it had acquired from AT&T, along with other UNIX assets Novell had developed during the ownership of USL (such as the UnixWare software), to the Santa Cruz Operation, Inc. ("Santa Cruz") pursuant to an Asset Purchase Agreement (the "APA"), dated September 19, 1995. (Ex. 15.)
They fail to point out that the APA does not transfer any copyrights as part of these assets.

I take this to mean that they are so confident of their position, that they don't even care if SCOX actually does own the copyrights.

[ Reply to This | # ]

Evil Empire Builders Manual, ch.27
Authored by: chrisbrown on Monday, August 16 2004 @ 08:57 PM EDT
Evil Empire Builders Manual, ch.27, Para.12:
When attempting to rewrite history in your favor, ensure that all witnesses to the contrary either work for you or are dead. ...

[ Reply to This | # ]

Beautiful piece in the doc...
Authored by: markhb on Monday, August 16 2004 @ 10:36 PM EDT
Notice Statement of Undisputed Facts II.8 ff, titled The Linux Operating System:
Linux is an operating system originally developed by a student at the University of Helsinki named Linus Torvalds. (See Ex. 7 (SCO Linux Introduction Version 1.2) at 1-5.) Torvalds's idea was to create a new, free operating system. (See id.)
I love it... the whole discussion of Linux (or at least that section) is quoted from SCO's Linux distribution! Never let it be said that Nazgul lack style....

---
IANAL, but ITRYINGTOCHILLOUT... et SCO delenda est!

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: jim Reiter on Monday, August 16 2004 @ 10:52 PM EDT
What if the novell case is dismissed because Novell had
sufficient reason to assume ownership (no malice)

and;

the IBM case is dismissed because Novell had the right to
control the terms of the IBM license.

No ownership issues of IP are resolved.

[ Reply to This | # ]

PDF transcription to text of IBMmotK.pdf
Authored by: eddsouza on Monday, August 16 2004 @ 10:55 PM EDT
Please post all transcription-related messages in this thread so they can be
found easily :)

I'm kicking off by taking physical pages 10 to 20 (both inclusive).
("Physical" => page number shown by xpdf in its status bar). If
you're following the page numbering IN the PDF, then it would be pages 3 to 13,
inclusive.

I'll try my best to turn out HTML, but hope to be forgiven if I cannot exactly
duplicate the layout of the PDF.

Apropos another thread, it's weird - xpdf (RH9) works fine for me but ggv does
not... wonder why.. and yes, I waited for nearly 20 secs before giving up on
ggv. xpdf fired up and showed me page 1 within 3 secs.

Eddie.

[ Reply to This | # ]

OT: Declaration Of John Harrop
Authored by: gvc on Monday, August 16 2004 @ 11:22 PM EDT
This document, "July 8, 2004 Declaration Of John Harrop In Support Of SCOS Opposition To IBMS Motion For Partial Summary Judgment" is at SCO's Website.

It pertains to IBM's previous motion for summary judgement on non-violation of copyrights. It is listed under Groklaw's "Legal Docs" but there is no link and I don't recall having seen it discussed. So I'm mentioning it here. It is more of "why we need discovery and how ever did you get the idea we were accusing IBM of copyright violation?"

[ Reply to This | # ]

ZDNet; D. Becker uses obscure redir. to hide link to Groklaw pdf
Authored by: jog on Monday, August 16 2004 @ 11:34 PM EDT
I don't think it is very nice to use Groklaw bandwidth
with attribution. :(
jog

[ Reply to This | # ]

The significance of Prof. Davis
Authored by: Anonymous on Monday, August 16 2004 @ 11:53 PM EDT
The choice of Prof. Randall Davis to determine if the lines of code were
"derivatives" or "modifications" is a major showing of legal
strength by IBM. A key "landmark" legal case for determining copyright
infringement when comparing two works is "Computer Associates v.
Altai". In deciding that case the judge himself retained an outside
"technical expert to the court" to help explain the steps to take to
decide, not an expert provided by either side. Having a "judge's
expert" is an unusual step in the major copyright cases. That
"expert", who basically wrote the test used by the court, was none
other than Prof. Davis.

It would be very hard for SCO to produce someone with more legal credibility.
Prof. Davis' technical background (Artificial Intelligence instead of Operating
Systems) is not what is important. This is like the scene in "Annie
Hall" where Woody Allen pulls out Marshall McLuhan to support Allen's point
about what McLuhan himself wrote.

-Dan Bricklin

[ Reply to This | # ]

The answers to my questions
Authored by: Anonymous on Tuesday, August 17 2004 @ 12:44 AM EDT
This document was a treat to read. IANAL. The document read easily, was
very clear, and left little room to maneuver. The logic was easy to
understand and well documented. This read like a good book, and kept me
interested.
I had from the beginning of the lawsuit wanted to understand the wording of
the contract. The people involved in the contract negotiations had never spoke
out.
I now see how the IBM lawyers worked. They let the court papers say it
all. The press does not matter. The presiding judge matters. This document
has answers to questions I had not even thought of. The lawyers IBM hired have
earned their pay. The lawyers SCO hired look a lot like overpaid losers to
me.
This case will be studied for many years. The mistakes made by SCO (both
management and lawyers) will be commented on extensively. SCO was playing the
mainstream press like a fiddle, and the press repeated the sound bytes because
they sounded so good. We now see a masterpiece orchestrated by the best.
Also the open source community response to SCO's lawsuits was impressive to
me. I have enjoyed reading Groklaw and PJ s work has created something that
has never been seen before.

Though few people will see these words many people will be affected by them.


Thanks for letting me rant
Willie Heizer

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: Anonymous on Tuesday, August 17 2004 @ 01:24 AM EDT
To backup IBM claims that SCO has no ownership in derived works. The March 3
1993 court decision USL vs BSD contains the following in the statement of FACTS:
footnotes:

AT&T IT claims no ownership interest in any portion of such a modification
or derivative work which is not part of a SOFTWARE PRODUCT

This refers to the same licensing paragraph which SCO claim gives them ownership
of all derived software.

AT&T's (and hence SCO's) lack of any ownership rights over derived software
is already recorded by a previous court as a FACT - agreed and not disputed by
all parties involved.

I found this from http://www.levenez.com/unix/ who in turn refers to
http://cm.belllabs.com/cm/cs/who/dmr/bsdi/bsdisuit.html who in turn gives this
link March 3 ruling http://sco.tuxrocks.com/Docs/USL/Doc-92.html>

[ Reply to This | # ]

SCO Fades - What will happen to Groklaw??
Authored by: Zarkov on Tuesday, August 17 2004 @ 03:01 AM EDT
A thought just struck - it is plain that IBM have finallay moved over to the
attack, and that SCO's abortive plot is going to fail... but the upside to the
drama has been the implementation of Groklaw, which obviously meets a need in
the community.

Where does Groklaw go when SCO dissappears? It would seem a shame for us all to
lose Groklaw now that we have found it just because SCO lose what they never had
in the first place...

[ Reply to This | # ]

Juggling for the jugular (and Red Dress (tm) Linux as PartyWare)
Authored by: webster on Tuesday, August 17 2004 @ 03:06 AM EDT
Well I see ya'll have had a lot of fun here today - a 100 page IBM Motion (and
readable to boot), over 700 comments, and talk of the red dress. I'm sorry I
missed the party but some of us have to work and we got families (who don't know
about Groklaw.)

IBM has a few lethal clubs in their bag, including this contract motion and the
GPL. They have more. The hurdles get higher for SCO. It is clear that IBM
goes at their opponents strongest issue. At first they went after copying and
now after the derivative contract.

Imagine the judge reading the GPL lines and deciding that to let this go on is a
total waste of time. He issues a precipitous Show Cause order to SCO to show
cause why their case shouldn't be dismissed due to their continuous distributing
of the Linux code, at issue in this suit, under the GPL. Maybe IBM will file a
request for such a motion. If necessary or just to be prickish and fill up more
time of the SCO attorneys. There was a hoax order of dismissal like this a few
months back here on GL.

This derivative theory is SCO lawyers attempt to salvage their client if not
themselves. They all neglected to do reasonable due diligence. They
essentially sued all the experts that they need to prove their case. They took
a shot at getting lucky with this derivative theory but alas, no code is
volunteering to help them. It was a god ploy. If the FUD was working, it would
have been powerful.

It has been fascinating to see the parties circle around and attack their
opponents upstream. SCO sues IBM, IBM gets Novell to attack SCO on their old
transfer. Then SCO goes further upstream and says Novell (and AT&T) didn't
license derivative rights. The case would have gone back to the Bible if it
weren't for the interruption of the BSD case.

One of these days the Judge will take the bait and give SCO a fatal ruling.
With a strong ruling against these lame SCO ducks, IBM can then use this factual
determination against the cash pocket entities that put little SCO up to these
larks. Who is IBM going to join to this party? I think we've only just begun.



---
webster

[ Reply to This | # ]

Education, education, education...
Authored by: muswell100 on Tuesday, August 17 2004 @ 03:32 AM EDT
Sorry - I know this probably belongs in a completely new thread, but that's not
my department. I've just spotted this on the Financial Times web site after
coincidentally reading an article in the Linux Pro supplement of Linux Format
about FOSS and Education/Government. The link is here:

http://news.ft.com/cms/s/6787a576-efc1-11d8-b4ef-00000e2511c8.html

I seem to remember some time back that there were television and press campaigns
about the activities of drug pushers and tobacco companies aiming their wares
directly at our children in the hope of creating a new generation of addicted
clientele. Spot the difference between these charming individuals and those of
the company herein named - and doing so with the blessing of the British
Government, no less! Although not directly mentioned in this article, supplying
software to the Public Sector will inevitably mean the Education Sector.
Apparently the UK lags behind the rest of Europe (and even Africa) in it's use
and adoption of FOSS.

An interesting aspect of this article is the mention of something I hadn't hear
of before: a 'Memorandum of Understanding between MS and the Government'. So
what was this Understanding? Possibly, 'The UK buys Our Stuff/Puts Up/Shuts Up'?
I tend to associate 'Understandings' as things that two parties come to if they
don't want to 'Create Trouble'. Or - possibly - if one party doesn't want it's
legs broken by the party of the second part...;-)

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: Anonymous on Tuesday, August 17 2004 @ 03:40 AM EDT
You know, maybe I had a sheltered childhood or something,
but I just can't get over the sheer audacity and
irreverence for, basically, the world and everyone in it,
that SCO shows through their constant lies. The poeple
that they could potentially hurt range from ordinary
companies to altruistic individuals donating their time to
their free software because they like to do it and because
they want to share the result. I'm used to companies
casting the truth in the light most favorable to
themselves, or interpreting the world in the same way,
even to the point of absurdity. But, this! Pure, direct,
unambigious lie after lie after lie. Lies that they could
not possibly have believed in themselves. Lies that must
have been calculated for some self-beneficial effect,
created beforehand, constructed and crafted, and then
coldly executed. It's just unbelievable. I mean, the
world is full of people doing terrible things to each
other, but I see no call on passion here, nor any
desperate need, nor any other motivation but to maximize
money with no consideration at all of any other effect.
Were these people not loved by their own mothers as
children or something??? I suppose there could be a real
personality disorder or something here.

Sorry for the (undoubtedly naive and useless) rant, but I
just don't get this.

[ Reply to This | # ]

Not a good idea.
Authored by: mobrien_12 on Tuesday, August 17 2004 @ 04:31 AM EDT
I have perused the document. It is well written and makes a lot of sense to me.

However, I know what SCOG's response will be. They will say that it is inappropriate to make a summary judgement on these issues because (according to SCOG logic)

  1. There is still almost a year of discovery left.
  2. This is what the jury should decide.
  3. This is exactly why SCOG needs access to every piece of AIX and Dynix code ever written.

It would have been better to do this after Judge Wells rules on SCOG's "renewed" motion to compel.

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: AllParadox on Tuesday, August 17 2004 @ 09:20 AM EDT
Ed:

I have been reading Groklaw closely since last summer, ever since it was
referenced on Slashdot a few times.

I have at least one, and maybe two, copies of Caldera's OpenLinux distribution
on CD.

My observations were not about which persons desperately deserve IBM sanctions.
That would be a much longer list. I was commenting on which obvious targets IBM
and their attorneys would likely pursue. I question whether IBM will put any
effort into going after Kevin McBride. I personally would be ecstatic if
someone handed me $US 500,000, but that is a losing distraction for IBM. Their
business is selling computers and systems, and lawsuits are mainly a money
losing proposition. They have to punish major offenders who damage their
reputation, but once their pit-bull reputation is established, they have to get
back to business.

As always, thank you for your kind comments.

---
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 | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: Anonymous on Tuesday, August 17 2004 @ 10:28 AM EDT
0wn3d

[ Reply to This | # ]

Timing of this filing important?
Authored by: Anonymous on Tuesday, August 17 2004 @ 10:56 AM EDT
(PeteS, not logged in)

Apart from filing on Friday the 13th (truly one of the most darkly humorous
things here), SCOX has to send a letter to the Judge in the RedHat case, and to
the Judge in the Autozone case (14 days later IIRC).

I wonder when those are due? SCOX can hardly NOT mention this motion (although
they can spin it).

Thoughts?

PeteS
:)

[ Reply to This | # ]

Here is how SCO will respond
Authored by: Anonymous on Tuesday, August 17 2004 @ 11:54 AM EDT
N. B. I do Not agree with any of this, but this is how I think they will
respond:


1. IBM's motion is founded on the contention that there is no direct copying of
System V into Linux by IBM. SCO however does not concede this point.

The SCO documents (Sontag April 19 declaration, Tibbitts Jan 12 declaration, SCO
responses to interrogatories) that IBM relies on to support this contention, do
not however do so by their express terms.

While the documents do state that SCO has not *yet* identified direct copying of
System V into Linux, SCO has always reserved the right to supplement its
answers, and has certified that its interrogatory are answers are complete to
the "best of SCO's knowledge".

SCO's knowledge is necessarily limited because of IBM's discovery shortcomings.
(See SCO's rule 56f motion, SCO memorandum on discovery and SCO's renewed motion
to compel discovery).

Until SCO has identified whether or not there is direct copying of System V into
Linux (which it can not do until IBM corrects its discovery short comings), then
IBM's underlying assumption (of no direct copying of System V into Linux) is at
best premature, and untested by discovery.

For this reason alone, IBM's motion should be denied.


2. Even if, arguendo, SCO did concede (but it does not) that there is no direct
copying of System V into Linux, IBM's motion should still be denied

(a) As IBM concedes, the contract is unambiguous (but SCO believes it to be
unambiguously in favor of SCO etc etc). The depositions by IBM, Sequent and
others [AT&T] about the intent or meaning of the licenses is therefore
inadmissable, as are the supporting documents that IBM relies on.

(b) Novell's waiver is without factual or legal foundation.

Amendment 2 transfers all copyrights from Novell to SCO. SCO paid $100m for
these copyrights and other rights. It is not SCO's construction of the IBM
license that is unreasonable, but it IBM's construction of the Novell-SCO APA
that is unreasonable: namely IBM is saying that SCO paid $100m for the
copyrights and other rights, but has no right to enforce them if directed to do
so by SCO.

Moreover Amendment 2, section B5, shows that Novell has no right of waiver.

(c) SCO have not waived their rights

[not too sure about this part]


(d) SCO's construction of the contract is reasonable

Nobody forced IBM to sign away the rights to code IBM developed. It makes no
sense, as IBM contends, that SCO should have less rights under contract to
protect intellectual property, than if there were no contract, etc., etc.



Quatermass
IANAL IMHO etc

[ Reply to This | # ]

IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: pooky on Tuesday, August 17 2004 @ 12:45 PM EDT

As I see it, IBM is challenging SCO's 1st, 2nd, 3rd, 4th, and 5th causes of action in SCO's 2nd ammended complaint. All of these rely upon SCOs theory of derivative works and what the contract says they are allowed to control. The 5th is the copyright claim.

That leaves causes 6 - 9 which basically accuse IBM of violating the Monterrey agreement and of tortious interference with SCO's business by doing the following:

1) Inducing SCO's customers to misappropriate SCO code
2) Interfering with the APA between Novell and SCO by inducing Novell to make knowingly false claims in IBM's defense.
3) Interfering with SCO's business relationships by inducing SCO partners to stop doing business with SCO.

Item number one above may or may not get debunked by IBM's strategy of trying to force SCO to cough up all code they say they have rights to in Linux. SCO is claiming (amongst other things that derive from 1 - 4) misuse of SCO libraries, which wouldn't be affected by a ruling that says there is no UNIX System V code in the Linux kernel.

Item number two doesn't really seem like an issue between SCO and IBM more than an issue between SCO and Novell, which may partially be resolved if Novell gets their case dismissed. In any event, Novell would seem to have the contractual rights to do what they did so the APA would seem to need clarification to resolve Novell's and SCO's differing interpretations of the document to resolve this issue. I can't see how IBM could get dragged in to that argument.

Item number three is totally separate and stands on its own but doesn't seem like a good cause for many billions of dollars in damages IMHO. This however may be a matter for a jury to decide since it's likely to require interpreting the meaning of what IBM representatives said to whomever. I'm sure it's not as simple as IBM saying "hey, we want to destroy SCO, help us out would ya?"

It would seem that IBM has gone for the defense that will best debunk SCO's contract claims, which is to get everyone involved in negotiating the contracts deposed so as to be on record with their interpretation of what the contract meant. That has to trump SCO's interpretation as it applies to IBM and any other licensee.

I can't see how SCO can successfully argue against this reasoning as it pertains to IBM. It would seem to be an issue between SCO and Caldera, the company from whom the assets were purchased. However, as always, IANAL, this is just my opinion.

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

Item 59 in the SAC says it all
Authored by: pooky on Tuesday, August 17 2004 @ 12:48 PM EDT

And I quote:

"As a result of this acquisition, SCO became the authorized successor in interest to the original position of AT&T with respect to all licensed UNIX software products"

It would seem AT&T's interpretation of contract would be SCO's, by SCO's own admission.

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

Shareholder lawsuit time?
Authored by: danacline on Tuesday, August 17 2004 @ 01:12 PM EDT
Seems like it's time to buy ONE share of SCO so we can all participate in the
massive shareholder lawsuit against their board (and maybe attorneys?)...

I think we should make sure their officers come out of this both penniless and
unemployable.

[ Reply to This | # ]

  • I think not! - Authored by: Anonymous on Tuesday, August 17 2004 @ 07:30 PM EDT
  • Nahhhh - Authored by: Anonymous on Wednesday, August 18 2004 @ 05:43 PM EDT
TSG's FTP Site
Authored by: tredman on Tuesday, August 17 2004 @ 02:13 PM EDT

Just on a lark, I went out to ftp.sco.com to see what they had in the way of Linux kernels. All I was able to find was this note:

NOTICE: SCO has suspended new sales and distribution of SCO Linux until the intellectual property issues surrounding Linux are resolved. SCO will, however, continue to support existing SCO Linux and Caldera OpenLinux customers consistent with existing contractual obligations. SCO offers at no extra charge to its existing Linux customers a SCO UNIX IP license for their use of prior SCO or Caldera distributions of Linux in binary format. The license also covers binary use of support updates distributed to them by SCO. This SCO license balances SCO's need to enforce its intellectual property rights against the practical needs of existing customers in the marketplace.

The Linux rpms available on SCO's ftp site are offered for download to existing customers of SCO Linux, Caldera OpenLinux or SCO UnixWare with LKP, in order to honor SCO's support obligations to such customers.

This file, called Legal_Notice, has a date of June 25th of this year. So it seems that it only took them 16 months to alert their customers to this. Seems litigation isn't the only thing they like to delay.

My question is this: is the FSF working on establishing some kind of case against TSG for violation of the GPL? I understand that they would really have to wait for probably both of IBM's PSJs to succeed before doing anything formal. Would it even be worth doing it, since by the time IBM's done with them, there won't be much left to sue.

Incidentally, this is the reason why I think IBM's getting screwed on this one. By the time it's over, there won't be anything left to get restitution from.

Tim

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IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: Anonymous on Tuesday, August 17 2004 @ 03:03 PM EDT
IBM: "All our base are belong to us."
SCO: :-(

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only way to fight a shell game
Authored by: phrostie on Tuesday, August 17 2004 @ 03:28 PM EDT
ok, a light just went off in my head.

IBM is fighting this the only way it can be faught.
SCOX has been playing a shell game of issues and evidence.
when ever IBM has asked to define the issues or evidence SCOX has moved to the
next wallnutshell.
what IBM has done is to say to the Court, OK, but they can't go back to that
later. one PSJ is bad enough for SCOX, but when they start adding up SCOX
starts to run out of wallnuts to use for misdirection. before long they will be
sitting at a table with all their nuts smashed.

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

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SCO Knows
Authored by: StLawrence on Tuesday, August 17 2004 @ 07:04 PM EDT
Two things struck me about SCO's posturing at the recent SCO Forum:

1) Darrel's new mantra, "I could be wrong, but I doubt it." and
2) SCO's sudden de-emphasis of the lawsuits, in favor of SCO products.

What happened during the weeks before SCO Forum that could have
precipitated a change in posture? I think it was the depositions of the
AT&T executives. I suspect that, before the depositions, Darrel & Co.
actually thought they were "right" (although their moral compass is
obviously calibrated a bit differently from most human beings'),
or at least that they could win. After they read the depositions,
I suspect they realized that they're wrong, and that they will lose.

If this is the case, then they'll want to lose quietly. We probably won't
hear much more from SCO executives about the lawsuit. They'll
continue to try to deflect interest, and hope that everyone will have
forgotten about it by the time it's finally resolved.

And it wouldn't surprise me if we start to see more of the cheap-&-sloppy
SCO lawyering we were seeing earlier in this case. They won't want to
keep burning the big bucks on a losing cause.

I could be wrong, but I doubt it... :-)

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IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: Anonymous on Tuesday, August 17 2004 @ 08:07 PM EDT
Well, everyone at SCO can go home now... All that remains is a formality. I
suggest everyone who can bail ship, do so now, before they are dragged down by
this dying company.

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SCO vs IBM or IBM vs SCO?
Authored by: Anonymous on Tuesday, August 17 2004 @ 08:32 PM EDT
I think that, at this point, this is no longer about SCO having a case against
IBM, but IBM having a super strong case against SCO: copyright infringement,
false representation, baratry, slander of title, unfair competition. Did I miss
something?

What do you think IBM will request as a compensation? $1B, $2B, $5B? I wonder if
there is an upper bound of what a company may request as a compensation.

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IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Authored by: jim Reiter on Tuesday, August 17 2004 @ 10:29 PM EDT
Authored by: Anonymous on Tuesday, August 17 2004 @ 08:32 PM EDT
"I think that, at this point, this is no longer about SCO having a case
against IBM, but IBM having a super strong case against SCO: copyright
infringement, false representation, baratry, slander of title, unfair
competition. Did I miss something?"

You missed bestiality, but who's counting.

The only battle SCO has left is with Novell over Patents, copyrights and control
of license issues.

Also, the fact that there is AT&T proprietary unix code in linux doesn't
mean IBM put it there. SCO has put unix proprietary code into Linux including
what may be some copyrighted code that they do not have the copyrights on.

Interesting.

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how to celebrate
Authored by: Anonymous on Wednesday, August 18 2004 @ 01:18 AM EDT
get a whole bunch of people holding hands surrounding the SCO campus,
singing a song throwing rose petals.

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SCO shares rocket (again)
Authored by: Anonymous on Wednesday, August 18 2004 @ 07:33 AM EDT
Yes, that's right. For some unexplained reason, SCOX went up $0.22 to end up at
$4.19. So the barrier remains... until September court hearing time.

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The MIT Scientist
Authored by: GLJason on Friday, August 20 2004 @ 05:15 AM EDT
Wow... IBM didn't just grab any scientist from MIT either, they got the expert that the judge appointed (with consent of the parties) as the court's own expert witness in the landmark CA v Altair case. This case defined how courts (at least in the second circuit) handle computer programs as copyrighted material.

In this case, Dr. Davis' opinion was instrumental in dismantling the intricacies of computer science so that the court could formulate and apply an appropriate rule of law.

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