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IBM's Motion for Partial Summary Judgment on Breach of Contract Claims - PDF and text
Tuesday, August 17 2004 @ 06:04 PM EDT

Here is IBM's Motion for Partial Summary Judgment on Breach of Contract Claims. This is the motion that yesterday's memorandum [PDF] is attached to. What I enjoy about this Motion is the clarity with which IBM explains SCO's very convoluted claims. I couldn't have done it, I don't think, in so few words, so simply yet so comprehensively. Seriously, try to find a way to say it better than this. I did, and I can't.

Our thanks, once again, to JeR for transcribing. If you wish to look again at the four causes of action that this motion is addressing, you can go to the SCO Second Amended Complaint [PDF], and begin with paragraph 110. Be aware that there are two paragraphs 110, so look for the second one, right after the heading First Cause of Action. The document was incorrectly numbered, just one of many little signs that SCO's case had hopped on a slow freighter to nowhere.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

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

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff
DEFENDANT/COUNTERCLAIM PLAINTIFF IBM’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON BREACH OF CONTRACT CLAIMS

(ORAL ARGUMENT REQUESTED)


Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Pursuant to DUCivR 56-1(a) and Federal Rule of Civil Procedure 56, Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”) respectfully submits this Motion for Partial Summary Judgment. As is set forth in the accompanying memorandum of points and authorities, IBM respectfully submits that the Court should grant summary judgment for IBM on Plaintiff/Counterclaim Defendant The SCO Group, Inc.’s (“SCO”) First, Second, Third and Fourth Causes of Action for the reasons summarized below.

Nearly two decades ago, IBM entered into licensing agreements with AT&T for the source code to the UNIX System V operating system. Now, SCO—which played no part in negotiating the agreements but purports recently to have acquired rights to them through a succession of corporate acquisitions—seeks to use the agreements to prevent IBM from contributing its own original source code (not UNIX System V source code) to the public operating system known as Linux. SCO’s contract claims rely on an unsupported and unsupportable reading of IBM’s agreements with AT&T and should be rejected as a matter of law.

Each of SCO’s four breach of contract claims against IBM relate to the UNIX System V licenses entered into by IBM and Sequent Computer Systems, Inc. (a company acquired by IBM in 1999) with AT&T. These licenses are in the form of a “Software Agreement”, which sets forth the terms under which UNIX System V source code can be used and disclosed, and a “Sublicensing Agreement”, which sets forth the terms under which software based on UNIX System V code can be distributed.

Although SCO for months has claimed that it had evidence 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 consists 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, IBM is prohibited by its licensing agreements from disclosing any of the other millions of lines in 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 imposed no restrictions on the use or disclosure of source code that does not contain UNIX System V code.

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.

3. Interpreting the licenses to prohibit the disclosure of homegrown code would be patently unreasonable.

Second, even if the AT&T agreements could be read to preclude the disclosure of homegrown code, 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, retained the right, among other rights, to waive alleged breaches of the agreements, and Novell has exercised that right to effect a waiver of the alleged breaches in this case.

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.

For the foregoing reasons, IBM respectfully submits that the Court should enter partial summary judgment for IBM on SCO’s claims for breach of contract (SCO’s First, Second, Third and Fourth Causes of Action). IBM also respectfully requests that the Court hold oral argument on this motion. This motion is further supported by the accompanying memorandum of points and authorities, IBM’s Declarations in Support of Motion for Partial Summary Judgment on Breach of Contract Claims, the exhibits submitted with the Declaration of Todd M. Shaughnessy, and by such argument as shall be presented at hearing.

DATED this [13th] day of August, 2004.

SNELL & WILMER L.L.P.
[signature]
Alan L. Sullivan
Todd M. Shaugnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the [13th] day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

[signature]
Amy F. Sorenson


  


IBM's Motion for Partial Summary Judgment on Breach of Contract Claims - PDF and text | 323 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here
Authored by: peshwali on Wednesday, August 18 2004 @ 08:05 AM EDT
Off-topic comments here!

[ Reply to This | # ]

OT Here Please
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:05 AM EDT
For a start, Netscape 7.2 is released and M$ Win XP goes to sleep for another
day.

[ Reply to This | # ]

Corrections here
Authored by: hgp on Wednesday, August 18 2004 @ 08:13 AM EDT
Thanx for the work evereyone!

---
The purpose of writing is to inflate weak ideas, obscure pure
reasoning, and inhibit clarity.
-Calvin (not on SCO(!))

[ Reply to This | # ]

Trolls Here
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:17 AM EDT
.

[ Reply to This | # ]

Astroturfers here
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:18 AM EDT
.

[ Reply to This | # ]

IBM's Motion for Partial Summary Judgment on Breach of Contract Claims - PDF and text
Authored by: danamania on Wednesday, August 18 2004 @ 08:23 AM EDT
> IBM also respectfully requests that the Court
> hold oral argument on this motion.

Is there a reason IBM have asked for this? does this mean IBM want to really rub
it in that there's no case here for SCO with regards to the contractual guff? Or
do they just want more solid in-court comments from SCO that they can later use
against them? Is it a normal part of the process?

All in all I'm curious about the why here :)

dana


---
--

[ Reply to This | # ]

How much SystemV in AIX?
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:32 AM EDT
"According to SCO, because AIX and Dynix allegedly contain some small
component of source code from UNIX System V...."

Someone help me out here. Grokline says this about AIX 1.0 :
"The AIX Operating System is based on INTERACTIVE Systems Corporation's
IN/ix, which, in turn, is based on UNIX System V".

So..... has the original System V code evaporated over the years? Why is there
very little remaining?

[ Reply to This | # ]

IBM's Motion for Partial Summary Judgment on Breach of Contract Claims - PDF and text
Authored by: Anonymous on Wednesday, August 18 2004 @ 09:22 AM EDT
So here's a question that got argued a little in another article. SCO's 5th
cause of action against IBM is the copyright infringement claim because IBM is
continuing to ship AIX allegedly without a license from SCO.

The 5th cause of action seems to depend upon two things: 1) SCO having the right
to terminate IBM's license or even cause to do so and 2) SCO having any
copyrights to infringe in the 1st place.

Eliminating causes 1 - 4 seems to undercut SCOs cause to terminate IBM's
license, essentially saying, your interpretation of the contract is incorrect
therefore your basis for terminating IBM's license isn't valid. Novell's motion
for dismissal with prejudice seems to undercut the SCO's legal ownership of the
UNIX copyrights upon which the 5th cause of action is based.

Would IBM not immediately move to have the 5th cause of action dismissed since
SCO seems not to be able to prove they own the copyrights (Novell publicly
disputes this) and SCO had no cause to terminate IBM's license if causes 1 - 4
are gone, hence no breach to base a termination on?

-pooky

[ Reply to This | # ]

Riding the Snake - Risky Business
Authored by: webster on Wednesday, August 18 2004 @ 09:31 AM EDT
I hope IBM didn't file this PSJ Contract Motion too
soon. It would be horrible for the judge to grant this one and moot the other
[PSJ infringement] out. The judge can rule on what and when he wants.

The derivative theory was meant to lose. It is a desperate, far-fetched
contract argument that only non-participants like SCO could make with a straight
face. But it is an argument; it prolongs the campaign; and if they were
extremely lucky with the court, it would be the exclusive
means to their downfall.

Most important of all the derivative theory was meant to help them abandon
their original, but now unfounded, claims. Those were the claims that tied
everyone in to that fuddish confidentiality that hid the malice, or the gross
lack of due diligence, of all the creators, consultors, financiers, guarantors,
and perpetrators of the SCO campaign. I'm sure none of them knew about the
derivative theory. Just winning this suit on a theory SCO chooses would not
advance IBM's cause against others. They could all claim they never heard of
the theory before the suit was filed. It would in way to take them off the
hook. IBM would have to slog away at others with deeper pockets and appropriate
ignorance of the FUD as well as derivative theory. It would be difficult for
others to be held to account for the FUD if SCO isn't. The derivative theory is
dangerous. The judge could choose to deny SCO on this theory and have little
patience for the rest of it. It is subtle, futile, and brilliant in its way.
It's like a guerilla war where a surrender means nothing.

Let's trust in IBM. Let's hope the judge doesn't see this as an either/or
case-dumping convenience. The non-infringement PSJ is paramount. Let's hope
the judge stays on schedule and decides this first.


---
webster

[ Reply to This | # ]

Looking Ahead
Authored by: rsteinmetz70112 on Wednesday, August 18 2004 @ 09:43 AM EDT
Assuming IBM wins in partial motion for Summary Judgment, where does that leave
us?

If the first four causes of action are dismissed, there remain 5 more which are
very briefly, as best I can tell;

5 - Copyright Infringement - for continuing to distribute AIX after termination
of IBM Sys V license.

BTW Since SCOG keeps saying the there are two licenses IBM's and Sequent's did
SCOG terminate both licenses or did they terminate only IBM's?

6 - Unfair Competition - for breaking their license agreement and for pulling
out of Project Monterey.

7 - Interference with Contract - for inducing others to use Linux.

Something SCOG did both as Caldera and as SCOG, How could IBM have known they
were doing something wrong when the Plaintiff was engaged in exactly the same
behavior, just not as successful at it.

8 - Interference with Contract - for consorting with Novell.

9 - Interference with Business Relationships - for pulling out of Project
Monterey and telling others about it.

I apologize for over simplifying the allegations SCOG made and appreciate any
corrections of facts.

It seems to me that when the Motion for Summary Judgment is granted, a second
motion for summary judgment will follow soon after asking for dismissal of Cause
of Action 5, since there will have been no substantial basis for cancellation of
the license. Whether they can get summary Judgment on the remaining issues is
questionable, because these all depend on IBM's actions and intent, clearly
matters of fact for a jury it seems. But without the first four causes of action
there is little basis for the remaining actions.

This thing could still drag on for a long time

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

IBM's Motion for Partial Summary Judgment on Breach of Contract Claims - PDF and text
Authored by: Anonymous on Wednesday, August 18 2004 @ 09:59 AM EDT
184. SCO has claimed that because Chewbaccas is a Wookie from Kashyyyk and yet
he lives on Endor, that this does not make sense. IBM denies this claim. In
early versions of the Star Wars script, Endor was a planet of Wookies. However,
this was later changed such that Endor was now a planet of Ewoks and not of
Wookies. Chewbacca's supposed residence on Endor is thus a discrepancy
introduced through a misunderstanding of the Star Wars code timeline. Chewbacca
does not in fact live on Endor.

[ Reply to This | # ]

There's a hole in our buckets, dear judge, dear judge
Authored by: cf on Wednesday, August 18 2004 @ 10:08 AM EDT
From Kevin McBride, to the court:
I'm saying our case is more -- it's an infringement case that may be one of three different. And by the way, Your Honor, I will proffer to the Court that we are filing a second amended complaint that has copyright infringement claims, and will be filed within the coming few days or no less than a week. And we'll put then fully in front of the Court the three buckets we have outlined here, contract, trade secrets and copyright.

Kevin's eloquent phraseology notwithstanding, SCO's buckets seem to be leaking badly. When forced to put up or shut up, they had to admit their trade secrect bucket contained only hot air. Their copyright bucket has one drop of goo left, but it's not related to improper contribution of code by anybody to anything. And now IBM clearly exposes the contract bucket for what it is. Completely dry, and it doesn't even belong to SCO.

[ Reply to This | # ]

Redacted sections of the memo (reverse engineered)
Authored by: Anonymous on Wednesday, August 18 2004 @ 10:54 AM EDT
Here is my best *guess* at the redacted sections of the accompanying memo

Page numbers are first the actual page number in the footer, second the PDF page
number

Paragraph numbers are from undisputed facts paragraph numbers



* Para 125 pp39/pp46 (section on testimony as to intent of agreement)
* Para 126 pp40/pp47 (section on testimony as to intent of agreement)
================================================================================
======

Most of this section are quotes from AT&T, IBM and Sequent.

- note on pp63/70 they say the extrinsic evidence (i.e. AT&T, IBM and
Sequent) is para 78-124
- note on pp70/77 they say the consistent testimony (i.e. AT&T, IBM and
Sequent) is para 114-124
- note on pp71/78, they talk about AT&T's clarification in 115, and 121-124

The section actually ends up on para 126. And noteable by their absence in the
above references are paras 125 and 126.

i.e. this is strongly indicative that Para 125-126 are not AT&T, IBM or
Sequent quotes, but are SCO's claims about what the contract means (i.e. SCO
claims they contracts means.... followed by a quote from a deposition [more
likely] or interrogatory response [less likely])

Furthermore:

- pp75/82 references para 125-126 as being SCO's claims. Here is the relevant
part:

"The absurdity of SCO's interpretation of the contract is exposed by SCO's
very own analogy set forth above (at para 125-125): SCO claims to have acquired
the rights to the computer program UNIX System V, represented here as
A-B-C-D-E-F. Assume that IBM has written a program, such as AIX or Dynix, which
contains tens of millions of lines of source code, including certain lines from
UNIX System V (less than a hundred thousand according to SCO), A-B-C, but also
includes the new source code G-H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z written by
or for IBM. Under SCO's interpretation of the software agreements, because A-B-C
code is present in IBM's program, which (SCO says) might be considered a
modification or a derivative work of UNIX System V (because it contains some
small percentage (less than 1%) of UNIX System V code), IBM is prohibited from
using its own source code G-H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z (which is tens
of millions of lines of code) in other programs. That is true, according to SCO,
even if, for example, the M-N-O code was written by a third party and licensed
to IBM for whatever uses IBM sees fit." (etc)

- Next note the next couple of pages after pp75/82 also talk in more detail
about SCO's theory of the contract, but **no more paragraph references are
given** (and no other references to SCO documents explaining the theory). Again
this is strongly indicative SCO's theory is explained in paras 125-126, and
only paras 125-126.

Thus we can conclude para 125/126 are SCO's claims about what the contract
means. We even know what analogy they used. And we know their contract theory
from SCO's other filings (e.g. their rule 56f motion).

Of course SCO would (probably) not have said anything in their answer about the
number of lines in this response (my guess in response to an interrogatory), as
if it included it makes their answer look even more absurd (as IBM did so
effectively).

So my guess is that 125/126 are SCO answers to interrogatories, or more likely
depositions, where SCO explains its contract theory. It probably goes something
*like*:

125/126.

IBM: What parts of AIX and Dynix does SCO have rights to under the contract?

SCO: All of it

IBM: Why?

SCO: SCO acquired the rights to the UNIX System V, represented here as
A-B-C-D-E-F. If IBM uses any of these lines, say A-B-C, in AIX, or Dynix, that
makes the whole of AIX/Dynix a derivative work, including additional lines added
by IBM G-H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z - and SCO's reading of 2.01,
means that SCO has rights of all this code.

IBM: What if IBM licensed part of G-H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V-W-X-Y-Z from a
third party, say M-N-O?

SCO: That doesn't make any difference. Once those lines are included in
AIX/Dynix or a derivative work of System V, SCO has rights.



* Para 152 pp53/pp60 (section on SCO distributing the code)
====================================================================

- pp 81/88 "SCO sold to customers and made publicly available on the
Internet the code that it claims IBM improperly contributed to Linux. (para
144-153)

- pp 83/90 "Moreover, although SCO claims to have "discontinued"
distributing any products containing the source code it claims IBM improperly
disclosed, SCO continued to do so _after_ it files this lawsuit (Para
150-153)" A redacted section immediately follows the paragraph containing
this text.

Thus we can conclude that paragraph 152, is a SCO deposition or interrogatory
about SCO distributing the Linux including the material that IBM allegedly
improperly contributed (see also the paragraphs before and after 152)


* pp 55/62 (section on argument IBM own DEF even if ABCDEF is AIX, and ABCEDF is
Dynix)
================================================================================
=======

This cross references to para 125/126, so presumably is the same (or very
similar quote). In fact it is most likely the same exact quote (or part of it),
as if a different quote, would have been listed in the undisputed facts as a
numbered paragraph of its own.


* pp 83/90 (section on SCO distributing the disputed code)
==========================================================

This cross references to para 152, so presumably is the same (or very similar
quote). In fact it is most likely the same exact quote (or part of it), as if a
different quote, would have been listed in the undisputed facts as a numbered
paragraph of its own.


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Don't forget SCO's secret weapon!
Authored by: kawabago on Wednesday, August 18 2004 @ 12:07 PM EDT
SCO has had months to practice their hand waving so they will be VERY prepared
to make a good show in court. I expect to see their small legal team do
plausible imitations of all your favourite waves from sporting events across
America. After all, why else would they pay Boies all that money when he still
hasn't presented any evidence, never mind building a case!

[ Reply to This | # ]

This is why you don't SUE IBM
Authored by: Anonymous on Wednesday, August 18 2004 @ 01:45 PM EDT
http://cnews.canoe.ca/CNEWS/TechNews/TechInvestor/2004/08/18/589415-ap.html

Armonk, N.Y.-based IBM has denied the charges and filed six counterclaims of
patent infringement on its software by Compuware."

IBM spokesman Tim Breuer said the company was confident the motion would be
denied.

"Compuware's motion is a litigation tactic designed to draw attention away
from the fact that the materials located and produced by IBM confirm that
Compuware's trade-secret and copyright claims are without merit," Breuer
said.


[ Reply to This | # ]

Death by Partial Summary Judgment
Authored by: brian on Wednesday, August 18 2004 @ 01:58 PM EDT
I guess this is standard legal workings but it seems funny to me that IBM is
picking SCO's case apart via Partial Summary Judgement. This seems the correct
way to go; find the parts that can be ruled out due finding of law or lack of
evidentiary proof then ask the judge to rule on them. Am I correct in that? If
so, then I see SCO's whole case going down the tubes a piece at a time since one
piece depends on another...So if this and their other PSJ is granted that leaves
SCO's case in tatters....


B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Get's it mostly right ... kinda missed SCO has zero patents
Authored by: Anonymous on Wednesday, August 18 2004 @ 03:10 PM EDT
http://www.it-director.com/article.php?articleid=12163

I liked this part "SCO is gradually acquiring the nickname of the
"Santa Claus Operation" because its business policy is akin to writing
letters to some legal Santa Claus in the hope of getting a stocking full of
legal awards for Christmas. What will Santa bring?"

system5

[ Reply to This | # ]

Medscheme dumps SCO Unix for Linux
Authored by: Anonymous on Wednesday, August 18 2004 @ 03:13 PM EDT
http://www.tectonic.co.za/view.php?id=322

"The majority of Medscheme's business runs on Oracle's database and because
Oracle no longer ports its products to SCO UnixWare, Medscheme has had to
reconsider its platform options.

"The Oracle technology has met all of our requirements, but because it no
longer supports SCO UNIX, while our business must ensure customers still receive
the best possible service, we have leveraged our investment in UNIX skills and
opted for the Linux operating system," says Kevin Wright, CIO at
Medscheme."

system5

[ Reply to This | # ]

There's an error in IBM's document
Authored by: Anonymous on Wednesday, August 18 2004 @ 03:16 PM EDT
"(...) to the public operating system known as Linux. "

Actually, Linux is not in the Public Domain. Instead, its pieces are owned by
the copyright holders of each of those pieces, and they retain all rights
according to the GPL.

[ Reply to This | # ]

Forbes: SCO hits back at IBM dismissal bid
Authored by: Anonymous on Wednesday, August 18 2004 @ 04:38 PM EDT
Here is the latest Forbes reporting of the SCO vs. IBM regarding IBM request for Summary Judgement.

http://www.forbes.com/technology/feeds/general/2004/08/18/generalvnu net_2004_08_18_eng-vnunet_eng-vnunet_122544_4455758057333486970.html?partner=yah oo&referrer=

Why doesn't it mention any of the supporting information in IBM's filing... like that SCO continued to distribute the source, etc...

[ Reply to This | # ]

SCO responds!
Authored by: IMANAL on Wednesday, August 18 2004 @ 04:42 PM EDT
"But SCO has been quick to issue a statement, in which it claims that IBM,
through its contributions of AIX into Linux, was in breach of this software
agreement.

'SCO disagrees with IBM's interpretation of their contractual obligations
regarding derivative works,' the company's statement said."

Read more at http://www.vnunet.com/news/1157433

[ Reply to This | # ]

IBM's Motion for Partial Summary Judgment on SCO's GPL Violations
Authored by: WBHACKER on Wednesday, August 18 2004 @ 06:52 PM EDT
IBM's filing against SCO on SCO violation of IBM's rights under the GPL that SCO "repudiated'. Sent to PJ about 20-30 minutes ago, but not up yet.

.pdf is here:

http://www.utd.uscourts.gov/reports/ibm/00000233.pdf

IIRC, the German General defending Aachen against American troops that his well-dug-in forces vastly outnumbered, was asked why he had surrendered.

His response:

"When the Americans start using 155 mm artillery as sniper rifles, it is time to give up!"

But I don't thing IBM is planning to take any prisoners...

---
Bill Hacker

[ Reply to This | # ]

But even if SCO is right, they're wrong
Authored by: Anonymous on Wednesday, August 18 2004 @ 06:56 PM EDT
Someone familiar to us all has said something like "even if SCO is right, they're wrong." I remembered it as being Linus Torvalds, but I can't find a reference anywhere. But it's a good punctuation for the IBM motion:
1. The plain and unambiguous language of the agreements imposed no restrictions on the use or disclosure of source code that does not contain UNIX System V code.
But even if SCO is right, they're wrong:
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.
But even if SCO is right, they're wrong:
3. Interpreting the licenses to prohibit the disclosure of homegrown code would be patently unreasonable.
But even if SCO is right, they're wrong:
(Not in the Motion, but in the brief) If the AT&T agreement were amibiguous, any ambiguity must be construed adverse to AT&T and their alleged successor, SCOG.

But even if SCO is right, they're wrong:
Second, even if the AT&T agreements could be read to preclude the disclosure of homegrown code, 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, retained the right, among other rights, to waive alleged breaches of the agreements, and Novell has exercised that right to effect a waiver of the alleged breaches in this case.

But even if SCO is right, they're wrong:
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.
And there may be a couple more that I've forgotten.

--Bill P

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IBM's Motion for Partial Summary Judgment on Breach of Contract Claims - PDF and text
Authored by: Anonymous on Friday, August 20 2004 @ 05:33 AM EDT
Wow... IBM didn't just grab any scientist from MIT, 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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