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IBM Files For Partial Summary Judgment on 8th Counterclaim (Copyright Infringement) -PDF and text
Wednesday, August 18 2004 @ 06:37 PM EDT

Man, this just isn't SCO's week. IBM has just filed *another* Motion for Partial Summary Judgment, this one on its 8th Counterclaim, the one for copyright infringement. No, silly, not IBM copying SCO. It's where IBM says that SCO has literally copied more than 783,000 lines of code from 16 packages of IBM's copyrighted material. They are asking for summary judgment as to liability and a permanent injunction.

Here's the lesson. You don't ever want IBM legally mad at you.

SCO and friends keep floating these rumors about SCO settling or being bought up. I think IBM has other plans, like crushing SCO like a bug.

Here is the motion, and there will soon be a memorandum in support, which should be hilarious reading, so stay tuned. It may take a little time before the document resolves. Meanwhile, Tuxrocks has a link that works.

I always said the GPL was SCO's Achilles Heel, way back from the very beginning, when I was a tiny little voice in the wilderness, and now I get to watch it play out just as I knew it could and should. I'm thinking this will be the end of the FUD about the GPL never being tested in court. That'll be refreshing not to have to hear that any more. Rest in peace, dead old FUD #1. Some of your cousins will be joining you soon in the Olde GPL FUD graveyard.


Here is the Redacted Memorandum in Support. Enjoy.


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

Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation










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 on its counterclaim for copyright infringement (Eighth Counterclaim). As is set forth in the accompanying memorandum of points and authorities, IBM respectfully submits that the Court should grant summary judgment as to liability and enter a permanent injunction for IBM on its Eighth Counterclaim for the reasons summarized below.

Linux is a computer operating system that has been (and is being) developed collaboratively by thousands of developers over the Internet. Like many others, IBM has contributed source code to the development of Linux and owns valid copyrights in its contributions.

SCO has, without permission, copied code from sixteen discrete packages of copyrighted source code written by IBM for Linux and distributed those copies as part of its own Linux products. SCO has literally copied more than 783,000 lines of code from these sixteen packages of IBM's copyrighted material. As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works and therefore infringed IBM's copyrights.

Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.

For the foregoing reasons, IBM respectfully submits that the Court should enter partial summary judgment and a permanent injunction for IBM on its Eighth Counterclaim for copyright infringement. 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, the Declaration of Kathleen Bennett In Support of IBM's Motion for Partial Summary Judgment On Its Counterclaim for Copyright Infringement (Eighth Counterclaim), dated August 16, 2004, the exhibits submitted with the Declaration of Amy F. Sorenson, and by argument as shall be presented at hearing.

DATED this 16th day of August, 2004.

Alan L. Sullivan
Todd M. Shaugnessy
Amy F. Sorenson

Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


I hereby certify that on the [16th] day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James

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

Stephen N. Zack
Mark J. Heise

Robert Silver

Amy F. Sorenson


IBM Files For Partial Summary Judgment on 8th Counterclaim (Copyright Infringement) -PDF and text | 1298 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Wednesday, August 18 2004 @ 07:21 PM EDT
wow, first post.

this is just great. absoloutly wonderful. it's so much fun to watch the whole
thing come crashing down on SCO's head. i can't wait for the memorandum.

[ Reply to This | # ]

Corrections here, please
Authored by: the_flatlander on Wednesday, August 18 2004 @ 07:22 PM EDT
You all know how it's done....

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Wednesday, August 18 2004 @ 07:22 PM EDT
With all of these motions for summary judgement, is there anything left to go to

[ Reply to This | # ]

OT and links here, please
Authored by: the_flatlander on Wednesday, August 18 2004 @ 07:23 PM EDT
So their easy to find ...

[ Reply to This | # ]

Trolls and Fish Puns.
Authored by: the_flatlander on Wednesday, August 18 2004 @ 07:27 PM EDT
Sharing a thread because it's more efficient.

The Flatlander

Hey! Is that another PSJ Motion in your pocket? Or are you just happy to be

[ Reply to This | # ]

It's still early in the week...
Authored by: StLawrence on Wednesday, August 18 2004 @ 07:27 PM EDT
Gee, it's only Wednesday yet... Still plenty of time for more this week. :-)

[ Reply to This | # ]

A testcase for the GPL
Authored by: Anonymous on Wednesday, August 18 2004 @ 07:30 PM EDT
This looks like it just became a GPL testcase.

And it's a much harder one than the German case, because SCO's distribution of
IBM's copyrighted work was perfectly legal so long as everyone respected the
GPL. It relies not only on GPL copyright being valid and enforceable (as the
German case did), but also on the termination of SCO's rights due to their

[ Reply to This | # ]

Dion Cornett
Authored by: Anonymous on Wednesday, August 18 2004 @ 07:31 PM EDT
Yesterday (? it might have been day before), Dion Cornett, an analyst covering
SCOX stock, raised their rating from underperform to market perform.

Dion has been a skeptic about SCO from what I have read. I believe he raised
the price target from $2 to $3 (the stock is current at $4).

Looked at in isolation, this makes a kooky kind of sense, in that he is saying
SCO may have bottomed out or close to bottomed out (although given he predicts a
25% decline in value, even he doesn't seem to be saying that)

More intriguing (or disturbing) is the rationale he gave in the report. He
apparently said SCO may be amenable to settlement now that IBM has brought
summary judgement actions regarding IBM CC 10 (copyright non infringement) and
SCO C1-4 (SCO's contract claims), and predicted a buy out or settlement.

I thought this odd, as if IBM were to win their then two PSJ motions, there are
few if any SCO bargaining chips left on the table for a settlement. (perhaps
somebody at SCO is feeding his trash)

Well, this latest IBM move, rather suggests that Dion's report is already
outdated, as IBM don't seem to have settlement in mind.


This is in part based on second hand reports of Dion's report.

[ Reply to This | # ]

At the risk of reading too much into this ..
Authored by: dkpatrick on Wednesday, August 18 2004 @ 07:34 PM EDT
If SCO fights it may well be the most visible challenge to the GPL so far. Other
companies have essentially "rolled over" when challenged about GPL
code included in commercial products. They've quickly complied with the GPL.

I would be kind of surprised if IBM spent the big bucks merely to shut down
SCO's already-crippled ability to sell software. If this is successful, IBM may
have a precedent to use when more robust companies (you pick one) distributes
IBM's copyrighted and GPLed code outside of the GPL.

"Keep your friends close but your enemies closer!" -- Sun Tzu

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Flower on Wednesday, August 18 2004 @ 07:34 PM EDT
Well folks wanted a test of the GPL in court and here it is.

What I find interesting and eagerly await for the memorandum is that they're
claiming "SCO has renounced, disclaimed... the GPL...." I want to see
how that argument goes and if it carries any weight. Since the GPL states that
use indicates acceptance does it matter a hill of beans if they say they don't
agree with it.

SCO's defense should be "interesting" as always.

Teach it phenomenology.

[ Reply to This | # ]

IBM's Memorandum in Support
Authored by: Newsome on Wednesday, August 18 2004 @ 07:35 PM EDT
It got out of order in the docket, but IBM's Memorandum in Support of this Motion [#233] is also available as #231.

Also, note that the docket also lists #243 as "9 boxes of SEALED Exhibits," and states that "[t]hese boxes are housed in the 5th floor sealed room of the courthouse." IBM claims 783,000 lines of code to be copied, then submits the code comparison as proof.

I'm not even sure the courthouse had a 5th floor until IBM's filing... (joke).

Frank Sorenson

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: pooky on Wednesday, August 18 2004 @ 07:37 PM EDT
This should be interesting. The 1st test of the GPL in a US courtroom (correct
me if I'm wrong please). Obviously SCO will have to attempt an appeal, should
they lose this one, lest they be permanently enjoined from shipping a number of
products not the least of which is SCO Linux 4, for whom they have customers
they still have to support (presumably).

Whether it means much to SCO financially or not is irrelevant IMHO, this would
give a case to cite for GPL enforcement in the US, which is important for the
future use of the GPL in a business setting. Play by the rules or else.


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

[ Reply to This | # ]

The strongest implication may be for IBM's PSJ on SCO's claims 1-4
Authored by: Anonymous on Wednesday, August 18 2004 @ 07:38 PM EDT
In IBM's PSJ motion on SCO's contract claims (1-4), IBM says, among many other
things, that SCO distributing the disputed material under the GPL acts as a
waiver for any IBM breach even if there was one (IBM of course also gives strong
evidence suggesting there is no breach)

This waiver argument is not founded on the text of the GPL specifically, but
rather on the fact that SCO is actively participating and encouraging and
profiting from the very same acts (IBM contributions to Linux), which SCO is
suing IBM for according to its contract theory.

Now in this new PSJ motion (IBM CC 8), IBM says SCO is violating IBM's
copyrights because (1) it's GPL license is terminated for collecting license
fees etc, (2) SCO has disclaimed/repudiated the GPL

SCO are thus in a dilemma here.

If SCO says it says it has repudiated the GPL, it must lose IBM CC 8 (it has no
other license to distribute IBM's copyrighted contributions to Linux)

If SCO says it does not repudiate the GPL (and the court accepts it's
non-repudiation), it must lose SCO 1-4, as it has just issued a waiver on IBM's

Of course, as both IBM PSJ motions are founded on multiple grounds, not just the
GPL repudiation/non-repudiation, SCO could lose both motions regardless of
whether it sticks to repudiating the GPL, and whichever course SCO takes could
put them into deeper do-do on at least one of the motions.


[ Reply to This | # ]

Hilarous reading
Authored by: PolR on Wednesday, August 18 2004 @ 07:49 PM EDT
there will soon be a memorandum in support, which should be hilarious reading
It is hilarious reading, especially the part where SCOG's own affirmative defenses are used as proof that SCOG has renounced the GPL and can no longer invoke it as a permission to distribute IBM's Linux code. This is shooting own's foot after putting it in the mouth in legalese.

[ Reply to This | # ]

Where else in SCO's closet might IBM's copyrighted code be found?
Authored by: StLawrence on Wednesday, August 18 2004 @ 07:49 PM EDT
IANAL and I don't even resemble one, but I wonder if now it's IBM's turn for
discovery... SCO wouldn't be much impacted if the courts tell them to stop
distributing Linux. But what about SCO UnixWare? What about SCO
OpenServer? Any chance that some Linux code (including some of IBM's
copyrighted stuff ) found its way into SCO's proprietary products? Only
one way to find out...

For that matter, ANY individual or company who owns copyrighted material
which is in Linux could now file a similar lawsuit. If SCO has violated the
GPL, then their continued distribution of Linux violates EVERYONE's
copyrights -- not just IBM's.

I wonder how thinly-stretched SCO would find their legal team if a couple
of hundred lawsuits were plopped on their doorstep, from every state in
the country. Come to think of it, SCO does business worldwide, so any
Linux-fragment copyright-holder in the world could file in their respective

Things are about to get interesting.

[ Reply to This | # ]

Due Dates
Authored by: overshoot on Wednesday, August 18 2004 @ 07:49 PM EDT
Hmmm ....

Looking at my calendar it appears that Boies, Schiller will be very busy for the next few weeks. It seems that the replies to these two new PSJ motions are due at the same time that they have oral arguments before Judge Wells and Judge Kimball.

That means that they have to:

  • Prepare for a discovery hearing before Judge Wells
  • Prepare for oral arguments before Judge Kimball on the rather-important PSJ motion regarding SCOX' copyright claims to Linux
  • Respond to the PSJ motion regarding contract violations
  • Respond to the PSJ motion regarding violation of IBM's copyrights
Now, I seem to remember reading that Boies, Schiller is overextended with more cases than they can properly handle. At least, they thought they were overextended. It looks like they're about to find out the true meaning of "overextended" and it won't be pretty. Maybe our friends who attend the September hearings can report on bloodshot eyes, drooping eyelids, etc.

That, or maybe BSF will hire a few dozen more associates to handle this material.

[ Reply to This | # ]

Which 16 programs
Authored by: Slimbo on Wednesday, August 18 2004 @ 07:51 PM EDT
Which 16 programs? If any of them make up a major feature in the new Unixware
that is being released, SCO will have a very difficult time making any money of
their 2nd core business (Unix OS, litigation is their 1st).


[ Reply to This | # ]

Catch 22 for SCO
Authored by: AG on Wednesday, August 18 2004 @ 08:09 PM EDT
The beauty of this motion is that the only option SCO has available to defend itself is to argue that the GPL is valid. Any other approach would be futile. SCO clearly copied IBM's code and the GPL is the only license they can refer to to justify their actions. This is going to be hillarious. I am from California, but I am seriously considering to drive up to Utah to see this one unfold in court.

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: rc on Wednesday, August 18 2004 @ 08:12 PM EDT
Ok, I keep expecting AllParadox to step in and say something about the fact that there are now *2* PSJ motions from IBM, after he (AllParadox - apologies if you're a she!) just finished saying, over in that other article's comments that Judges don't tend to like multiple PSJ motions.

So, AllParadox - what do you think of this? Is IBM making a bad move by doing multiple PSJs???



[ Reply to This | # ]

Who knows IBM's intention?
Authored by: Brian S. on Wednesday, August 18 2004 @ 08:13 PM EDT
SCOG's litigation foray is dead in the water. They can make no factual case
against any recent IBM filing and they are getting nastier by the day. I hear
there is more in the pipeline. I cannot conceive of a single factual arguement
SCOG can come up with.

That being the case, the ball is totally in IBM's court (court :)). The biggest
unknown is IBM's intention. I can quite believe the rumours of SCOG attempting
to negotiate for their life. What will IBM do?

They won't continue with litigation for litigation's sake.
They won't continue litigation solely to destroy SCOG.
They won't contintue litigation for exorbitant damages.
They certainly won't buy SCOG out. They could have done that last year.

They could continue litigation to destroy SCOG as a warning to others.
They could continue litigation to ensure the safety of SYSV.
They could continue litigation to enforce the GPL.
They could continue litigation to keep Linux and OSS high profile safe in the
knowledge they have won.

The choice is IBM's to make with no relevant input from SCOG. I know PJ wouldn't
agree but this case has reached the situation where you will soon get odds at
the bookies (english slang) on IBM's next move.

The arguement I find most attractive for continued litigation is to enforce the

Brian S.

[ Reply to This | # ]

TSG's argument?
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:15 PM EDT
Then again, TSG's argument may go something like this:

Since all code that has at sometime been in the same room as "our"
code, is now also our code, then all this code IBM is complaining about is
actually our code, and their pointing out it is the same as code in Linux just
proves the point we made in the first place.

[ Reply to This | # ]

Nice coherent strategy by IBM...
Authored by: cfitch on Wednesday, August 18 2004 @ 08:18 PM EDT
To see it all, we have to look at certain case events in order.

1) SCO attacks the GPL, claims IBM is violating the license by donating the
alleged "derivative works" ie. IBM's own code to linux, continues to
distribute linux kernel source, and makes (and later drops) copyright claims
with respect to Linux/Sys V.

2) IBM files a number of counter-claims including:
CC1: Breach of Contract since SCO terminated the paid-up and irrevocable
CC8: Copyright Infringement by SCO for non-compliance with the GPL
CC10: Declaration of non-copyright infringement by IBM with respect to

3) Lots of discovery, motions etc... plus loads of Bluster and FUD by SCO and
others. SCO claims to have lots of proof of infringment in Linux but refuses/is
unable to show it in court.

4) IBM starts out by asking for Partial Summary Judgment on CC 10 by pointing
out that SCO has not produced any proof.

5) IBM does lots of discovery and finds that the license says what they thought
it said years ago.

6) IBM files a Motion For Partial Summary Judgment on Contract Claims pointing
out these facts as well as an additional point about SCO *STILL* distributing
the kernel source.

7) IBM then uses that last point to file yet another Partial Summary Judgment on
CC8 using SCO's own complaint(we don't use the GPL) plus kernel source
redistribution to hammer the point home.

Nice row of dominoes being knocked down...

What's next?

Well if IBM's Motion for Partial Summary Judgment on Contract Claims is granted,
then the next dominoes might be:

- IBM filing for Partial Summary Judgment on CC3: Unfair Competition
- IBM filing for Partial Summary Judgment on CC4: Intentional Interference
with Prospective Economic Relations
- IBM filing for Partial Summary Judgment on CC5: Unfair and Deceptive Trade

All of these could be based on SCO wrongfully terminating the license.

All-in-all they really sucked SCO in to this, and now IBM gets to pummel them
for it.

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: StLawrence on Wednesday, August 18 2004 @ 08:31 PM EDT
I've just finished reading the memorandum in support of the motion.
It is more than hilarious. Everyone should read it. It's priceless.

I've never been interested in hearing what Darl has to say. Until now...


[ Reply to This | # ]

Memorandum in Support - Redacted on Tuxrocks
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:32 PM EDT
Correct me if I am wrong, but it appears that the redacted memorandum in support
of this motion is already posted on Tuxrocks as document 231. PJ you might want
to place a link in the article.

[ Reply to This | # ]

IBM's Plans...
Authored by: the_flatlander on Wednesday, August 18 2004 @ 08:39 PM EDT
Ms. Jones wrote:
" I think IBM has other plans, like crushing SCO like a bug."

You have a gift for understatement, ma'am.

The Flatlander

Really, the SCOundrels should be so lucky as to get squished in one swift swat.
This is going to be a little more agonizing, methinks, (or *hopes*, anyway).

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: WBHACKER on Wednesday, August 18 2004 @ 08:44 PM EDT
Well, failing all other knowledge, if SCO had only heard of IBM's legendary "Second Directive" they might have known better....

(Linux-using) *Customers* of IBM had been threatened.

Bill Hacker

[ Reply to This | # ]

From SCO's perspective
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:46 PM EDT
For SCO's version of the history, I went to:

And don't you know it, to SCO history stopped on 8 July 2004, over a month and a
week ago.

Not to mention the gaps they have in their coverage.

It really makes Groklaw's stellar coverage shine that much brighter.

[ Reply to This | # ]

The motion, the memo, redacted, and reverse engineered contents of redacted sections
Authored by: Anonymous on Wednesday, August 18 2004 @ 08:57 PM EDT
I have the full motion

I have a redacted copy of the supporting memo

The redacted sections of the memo are paragraph 26, and para 66 e-g and j-k

It is not hard (in general terms) to figure out what the redacted sections say,
they are quotes of SCO depositions (more likely) or SCO interrogatories (less
likely). I think they are depositions, possibly Chris Sontag, because we know
that the SCO interrogatories do not contain some of these admissions (see for
example IBM PSJ on SCO claim 1-4 about SCO's continued distribution of Linux)

In a reply to this post , I'll post my *guess* as to the content of the redacted
sections. I do not have as much info to go on as I did for Chris Sontag's
sealed declaration or IBM PSJ on SCO claim 1-4, so my guesses are much broader
and only can be generalities.


Note: I am posting my guess in a reply, because somebody complained that my
similar post on IBM's PSJ motion on SCO claim 1-4, messed up their browser

[ Reply to This | # ]

"Literally copied..."
Authored by: Nick Bridge on Wednesday, August 18 2004 @ 08:58 PM EDT
My favorite:
"SCO has literally copied more than 783,000 lines of code from these 16
packages of IBM's copyrighted material."

IBM are using SCO's words against them - but (and here's the kicker!) with real,
and solid, evidence.

It's a thing of beauty!

[ Reply to This | # ]

Good job SCOG didn't listen to Wol.
Authored by: Anonymous on Wednesday, August 18 2004 @ 09:05 PM EDT
Relevant post is about 32 posts down.
Wol's post

[ Reply to This | # ]

implications of the GPL
Authored by: xtifr on Wednesday, August 18 2004 @ 09:17 PM EDT

One thing has always puzzled me about the FSF's claims about the GPL: in MySQL AB v. NuSphere, as I understand it, NuSphere was accused of continuing to distribute MySQL code after having violated the GPL. This, in spite of the fact that they'd already repaired the violation (made the full source to their modified version available). The thing that confused me is why, after having fixed things, NuSphere couldn't just become a valid licensee again just by (re-)downloading the source!? I.e., the same way they became a licensee in the first place.

When I read the GPL, it seems to me that it makes me authorized (and required) to grant a license (specifically, the GPL) to anyone whom I give the code to. It doesn't say that I can't give the code to someone who has been in violation of the license to that code in the past, and it most definitely does not say that I can give someone the code without granting them a license, under any circumstances whatsoever. So, it seems to me that if NuSphere had gotten the code from me, I would have been legally required to grant them a license. So why did NuShpere settle? I've never understood that.

Granted, in the current case, TSG's repudiations and violations are continuing and on-going, so even if they got re-licensed (by, say, downloading the code from my website), they'd immediately be in violation again, and lose their license again. But if they withdrew their repudiation, cancelled the SCOSource program, and then re-obtained the code from someone authorized and required to grant them a license (like me), I don't see why that wouldn't end the matter right there. Anyone have any insight into the legal issues involved here?

Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light.

[ Reply to This | # ]

Sent by US mail
Authored by: Anonymous on Wednesday, August 18 2004 @ 09:20 PM EDT
I just noticed that this memo was served to SCO by US Mail on the 16th. With
today being the 18th, it could be that SCO's lawyers heard about this first on
Groklaw. Now wouldn't that be sweet?

[ Reply to This | # ]

The contrast in standards of evidence is striking
Authored by: Anonymous on Wednesday, August 18 2004 @ 09:29 PM EDT
IBM has provided detailed line by line accounting of copied material and boxes
(!) of evidence of direct line by line copying including what is no doubt a
masterful display to the judge of exactly how source code should be compared,
how evidence of direct copying should appear and what the proper standard should
be in terms of comparing source code to present evidence of copying.

The contrast with SCO's miserable and pathetic display of `evidence' and its
plaintive cried of just how hard it is to show that one thing has been copied in
another could not be greater.

Apart from the direct merits of this PSJ motion, this will have considerable
flow on benefits for IBMs other PSJ motion. Imagine the judge considering these
motions in his chambers.

* On the desk in front of him is SCOs latest wail about how hard it is to
compare source code and how they need more versions of AIX than have ever been
released and thousands of man hours of work by skilled programmers and just how
difficult evidence of copying is to find, and NOT ONE SINGLE INSTANCE of copied
material. The judge must also be aware of the glaring ommission of any evidence
of copyright ownership, because this is the same judge who pointed that out in
the Novell case.

* Stacked up in boxes against the wall is IBMs lesson in how it should be done.
THIS is what evidence of real copying looks like. THIS is how you do an
effective comparison of source code. THESE are the tools you use. THIS is what a
proper presentation of evidence of copying should look like. HERE are the
copyrights. HERE is what they copied. QED.

The judge, sitting there reading SCOs memoranda with IBMs potent silent
demonstration of what SCO should have been doing all this time stacked up
agaionst the wall of his office, is going to find the contrast very enlightening
I suspect.

IBM has timed this immaculately. Note that they filed for the copyrights of most
of this material in February. They've had this legal option under consideration
for a very long time and have withheld it awaiting the most effective time to
strike. In my opinion their timing is superb.

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: wsapplegate on Wednesday, August 18 2004 @ 09:35 PM EDT

Let's play devil advocate a bit. Here's what I predict SCO will say to wiggle out : « we never violated the GPL because the license fees we were demanding were not for third-party-owned works, and not even for the Linux kernel itself, but for the use of our IP that's present in Linux ». Yes, they really worded it that way (I would like to point to the original text, but, guess what ? They've pulled it out !). So, they can argue that, despite all appearances, they were never really asking for a fee for the code itself, no siree. Of course, it remains to be seen if the judge will be fooled by such a maneuver, but I'm 100 % certain that will be their defense, I knew it would be from the day I saw the sleazy wording on the extorsion license.

[UPDATE : the Wayback Machine strikes again, and here it is. Quoth the EULA : « Provided You pay the applicable license fee and complete the required registration of the COLA, SCO grants You the right to use all, or portions of, the SCO IP only as necessary to use the Operating System on each System for which the appropriate CPUs have been licensed from SCO as designated on the COLA ». There. Nothing (NOTHING) that would say unequivocally that Linux really contains SCO IP (I wonder why ?). And then some hypocrisy : « SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN ». Duh ! Of course, it is empowered to do that : they're basically licensing you an _hypothetical_ (that means nonexistent) IP belonging to them that could be found in your OS. And since you don't have « any rights to access, use, modify or distribute any SCO source code in any form », you won't even be able to ascertain the said IP is or isn't there. Did I mention they were sleazy ?]

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Apropos FUD #1 - The GPL
Authored by: LD on Wednesday, August 18 2004 @ 09:47 PM EDT
Clearly, RMS, and Mr. Moglen did an incredible good and
anticipatory job when they crafted the GPL license.

One does not fully understand the F/OSS software movement
when not seeing that it is founded on both solid ground
works in technological as well as in juristical respect.

Mr. McBride's "Masterplan" finally comes out to be for
vampire use in the dark only - tough luck, when suddenly
standing in the bright light of the truth. - God bless
their ashes.

PJ, i'm so glad you lifted the F/OSS approach to law
research and trial attend. That's really a personal merit.

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Tell me they didn't set SCO up for this...
Authored by: Anonymous on Wednesday, August 18 2004 @ 09:55 PM EDT
Notice all those copyrights were registered after the fiaSCO began;-)

They knew what they were gonna do from the very beginning, this was very
calculated and very nasty. I do NOT envy SCOs legal team!

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GPL has been tested, thinking aloud
Authored by: RedBarchetta on Wednesday, August 18 2004 @ 10:02 PM EDT
PJ stated:
"I always said the GPL was SCO's Achilles Heel, way back from the very beginning, when I was a tiny little voice in the wilderness, and now I get to watch it play out just as I knew it could and should. I'm thinking this will be the end of the FUD about the GPL never being tested in court."
Well, it was tested in court, just not a US court. I know PJ is aware of this -- I'm just pointing it out for posterity.

Yes, I must admit PJ, you have held your ground regarding the GPL. You've faced a barrage of trolls from The SCO Group, Laura Didio, Rob Enderle, Dan Lyons, Daniel Wallace, et al, and yet you still manage to get the message across. I fully credit you, as well as many great GROKLAW members, for having a hand in the success we are witnessing.

In fact, I think GROKLAW has been so successful that I am convinced The SCO Group uses this forum to sound off new possible theories. In usual GROKLAW form, most of these theories are dissected, inspected, dissected more, and re-inspected more, finally being put to rest (like the USL trademark issue -- that whole idea was a joke).

GROKLAW has become a multi-facted resource, both for FOSS proponents and opponents.

I only wonder who could ever replace PJ. After all, we are not immortals...

Collaborative efforts synergise.

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IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: nola on Wednesday, August 18 2004 @ 10:12 PM EDT

Very nice.

And "exquisite" is reserved for footnote 6 on page 19. Absolutely

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Sowing a breeze and reaping a tornado
Authored by: m_si_M on Wednesday, August 18 2004 @ 10:13 PM EDT

I am convinced that a motion like this was the worst thing TSCOG and its supporters expected to happen.

As became clear during discovery and the many filings, Linux' bill of health is more than clean. But if this motion is granted, it will also be clear that the GPL is a mighty weapon to protect copyrights.

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Very simply NOT a casual 'test'...
Authored by: Tomas on Wednesday, August 18 2004 @ 10:21 PM EDT
IBM appears to be quite serious about this and every other thing they have filed
in this case.

SCO cannot use an argument that "we had contratual obligations to our
customers that REQUIRED us to continue distributing this software, even though
to do it in the way we did broke our license to do so."

If that sort of illogic were allowed I could simply write a contract with
clauses in it that would allow me to ignore laws with impunity because "my
contract says I must do this."

We've long expected IBM to do something about their copyrighted code in Linux
under the GPL, and wondered why they haven't. Well, now they have. :o)

Personally I suspect that there is someone at IBM (or their lawyer's office) who
quite legitimately is a "customer" of SCO, and logs in regularly,
again quite legitimately, to verify that SCO is still distributing Linux over a
year after filing suit. (Note IBM's statement in another recent filing that SCO
is still distributing Linux as of 04AUG2004.)

SCO is in a very difficult position here since a contract requirement to do
something does NOT trump a law (copyright) saying one cannot. It just doesn't

I'll be very interested to see SCO's responses to this.

I believe it might be time for me to bring back an earlier comment I made many
months ago:

"IBM won't be happy with this case until SCO is ground into a fine pink
paste and spread on the Gates of Armonk as a warning to others."

Pass the popcorn, please...

Engineer (ret.)
We miss you, Moogy. Peace.

[ Reply to This | # ]

What Is _Really_ Devestating
Authored by: WhiteFang on Wednesday, August 18 2004 @ 10:29 PM EDT
Is that the entire memorandum in support is a tour de force in listing the
copyrighted material <strong> with specificity </strong> - something
SCOX still hasn't been able to do. <br><br>Go IBM!

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Here is how SCO will respond...
Authored by: Anonymous on Wednesday, August 18 2004 @ 10:47 PM EDT
Here is how, I think, SCO will respond...

I do not think SCO can seriously contest they have breached the GPL, (nor
repudiated it and therefore not accepted it)

The reason that SCO offer binary licenses, is presumably, so they would not
waiving IBM's conduct of disclosing the IBM code that SCO claims contract rights
to (of course SCO did it badly, and kept on distributing the source too)

Instead I think they will seek to attack IBM's copyrights (remember IBM has no
standing to pursue copyright infringements of non-IBM contributions to Linux).

They will claim that IBM's copyrights are invalid, on the basis that *all* IBM
contributions to Linux are unauthorized derivative works of the copyrights that
SCO purports to own. Of course they have no evidence of this either - but they
will argue, under rule 56f, they need more discovery. In other words expect a
similar reply to their rule 56f motion on IBM CC 10.

(This will of course further undermine their arguments that IBM CC10 is both
unnecessary and non-compulsory)


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IBM is claiming that SCO violated IBM's copyright on the Journaled File System
Authored by: jfw25 on Wednesday, August 18 2004 @ 11:07 PM EDT
You know; the same JFS that SCO claims to have some contractual right to control IBM's use of code which they admit IBM wrote and owns, based on a bizarre interpretation of the contract which has been repeatedly and explicitly disclaimed as erroneous by everyone actually involved in the contract? Right. That's the code whose copyright IBM claims SCO has violated, based on a perfectly ordinary and utterly inarguable interpretation of copyright law.

The irony is exquisite.

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End it once and for all time
Authored by: Anonymous on Wednesday, August 18 2004 @ 11:16 PM EDT
I see IBM's argument that SCO can't use the GPL
for permission since they repudiated it. This means
the GPL can't be used by SCO whether it is valid or not.
It just says the GPL is irrelevant and SCO can't rely
on it.

Why doesn't IBM argue the GPL is valid under their theory of the GPL in their

27. The Linux kernel is subject to the GPL as it is comprised of programs and
other works that contain notices placed by contributing copyright holders
permitting distribution under the terms of the GPL. The Linux developers' public
agreement to apply GPL terms expresses in a binding legal form the conscious
public covenant that defines the open-source community -- a covenant that SCO
itself supported as a Linux company for many years.

It seems this is the only way to end all the controversy
about whether the GPL is truly enforcable.

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These guys do have a sense of humor
Authored by: Brad R on Wednesday, August 18 2004 @ 11:18 PM EDT
Indeed, the IBM legal team does have a sense of humor. On page 20 they cite Microsoft Corp. v. Computer Serv. & Repair, Inc. as a precdent that distribuing unauthorized copies of software is an infringement under the Copyright Act.

It's so....fitting.

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Belt AND Suspenders
Authored by: Anonymous on Wednesday, August 18 2004 @ 11:28 PM EDT
In each of these filings for PSJ, IBM has presented multiple causes for which PSJ should be granted, any one of which should be sufficient in and of itself. Wow! They're doing the belt and suspenders thing, sometimes with several belts and several suspenders.

They are inexorably rolling over SCOG like a steamroller. This is a beautiful, almost scary thing to watch. One could (almost) feel sorry for SCOG, except that they brought it on themselves, many times over.

Thanks, PJ, for keeping us up to date on this show of overwhelming force.

Larry N.

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Didn't Darl promise...
Authored by: Anonymous on Wednesday, August 18 2004 @ 11:49 PM EDT
that these matters would be resolved by a jury (many years hence). Has anyone
seen or heard from Darl lately? Could it be that he is out buying insurance
from OSRM?

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Partial Summary Judgment
Authored by: icebarron on Wednesday, August 18 2004 @ 11:54 PM EDT
I suspect at least two more PSJ's are in the works. I could be wrong...don't think so. This was calculated, tabulated, colated, bound and earmarked for just such a day as this. Huraaah, cold clean slice and dice. Now that is a the mother of all filings, and a beauty to behold.

Peace to one and all

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Sontag deposition - thing of beauty
Authored by: Anonymous on Wednesday, August 18 2004 @ 11:59 PM EDT
I'd like to point out that SCO's repudation of the GPL (e.g. SCO's position that
the GPL is violative of US law), is evidenced by IBM pointing not only to SCO's
affirmative defenses, but by extensive references to Sontag's deposition.

Couldn't happen to a more deserving guy


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Precedent for other kernel copyrightholder ?
Authored by: farhill on Thursday, August 19 2004 @ 12:01 AM EDT
If IBM prevails on this, wouldn't it be an almost automatic win for any other
kernel contributor who wanted to go after SCO ? If the judge agrees (as a matter
of law, with no facts in dispute!) that distributing IBMs code was a breach of
copyright (via failure to comply with the GPL), the exact same logic would seem
to apply to every other kernel copyright holder.

I imagine individuals like Linus etc. wouldn't be interested, but companies Red
Hat and Novel (via SuSE code) might be...

Or am I missing something here ?

Humorous aside: my spell checker wants to change "IBMs" to
"ICBMs"... uncanny!

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A word of advice to posters
Authored by: Anonymous on Thursday, August 19 2004 @ 12:42 AM EDT
I see that many didn't actually read IBM's text. 99% of all question are
answered in it. Please, have a read, you'll like it :-)

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oral argument ?!
Authored by: rikvanjak on Thursday, August 19 2004 @ 12:58 AM EDT

"IBM also respectfully requests that the Court hold oral argument on this

-ladies and gentlemen, i do believe we are in for some SERIOUS courtroom
entertainment!! Where can i get tickets? Will it be taped? broadcast??

-john :^D

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Maybe I'm naive, *but*
Authored by: inode_buddha on Thursday, August 19 2004 @ 12:58 AM EDT
OK, I'm particularly naive about legal things, but I've never wondered about the GPL's enforcability. One could as well ask if copyright itself is enforcable. In a similar vein, ISTR that Eben Moglen has said that he never raises the GPL itself as an issue, only copyright.

"When we speak of free software, we are referring to freedom, not price." -- Richard M. Stallman

[ Reply to This | # ]

Summary of IBM request
Authored by: Anonymous on Thursday, August 19 2004 @ 01:09 AM EDT
"Kneel before Zod!"

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IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Nick_UK on Thursday, August 19 2004 @ 01:20 AM EDT
...SCO has literally copied more than 783,000 lines of code...

I see IBM have a far more re-assuring idea of what is what than SCO's claim of millions of line of code.

I bet IBM can show it all, too!


[ Reply to This | # ]

IBM's example of how to show line-by-line copying
Authored by: tz on Thursday, August 19 2004 @ 01:35 AM EDT
Read the memorandum.

The neat part is that while it seems that SCO can't find any identical lines
anywhere (except maybe that SGI BSD leak long removed), IBM has just
shown just under a million lines of direct copying point-by-point. I
wonder if they will have it all printed out with a highlighted diff for the

IBM: Here's all the lines SCO illegally copied from our software (huge tome
goes thunk). Does SCO have a similar list?

SCO: We're working on it. We ask for a delay while we research US
Extradition treaties.

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Lawyers - comments on IBM's choice of order?
Authored by: Duster on Thursday, August 19 2004 @ 01:51 AM EDT
Not being a lawyer, it looks to me as if IBM is sequencing these filings in some
deliberate order, rather like setting off a series of explosive charges to drop
a hunk of mountain-side of predetermined size in a predetermined place. My
question is whether there is a reason for the order and pace and whether some of
the legal minds here can explain the reasoning to those of us who aren't.

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IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Thursday, August 19 2004 @ 02:27 AM EDT
This seems to me to be a strategic move relating to the other motion for partial
summary judgement. One of the arguments in the other document was that SCO can't
distribute linux under GPL then sue IBM for doing the same.

This new motion is like a chess fork. They have to try to get GPL to continue to
apply for the latter motion in order to defend against it, but anything positive
they say about the GPL can be turned around on them in the former motion.

[ Reply to This | # ]

Linux is an unauthorized Unix derivate ...
Authored by: AG on Thursday, August 19 2004 @ 02:34 AM EDT
This just struck me: SCO has been claiming all along that Linux is an unauthorized Unix derivate. SCO owns Unix (see Sontag's slides from SCOForum 2004). As soon IBM's code touched Linux, SCO owned it too. Thus, they don't need no stinking GPL. In SCO's little dream world, this would also work for code that does not originate in AIX. If IBM writes code specifically for Linux, its automatically SCO's by way of that 20 year old contract. I am not saying this makes sense, but it might just be enough to survive a PSJ.

[ Reply to This | # ]

Authored by: RedBarchetta on Thursday, August 19 2004 @ 02:55 AM EDT
From just a few days ago, in an eweek interview with Darl McBride:
Darl McBride: [..] We made our stab at trying to work in the Linux environment, but that didn't bear any fruit, so we circled back to our core competency on the Unix side. Innovation is the first step to addressing that imbalance, which we are doing with our core products, OpenServer and UnixWare."
Addressing the imbalance? Innovating? Don't you mean borrowing someone else's work under the color of the GPL, then turning around and selling it, in full violation of the GPL?

The SCO Group is shipping open source applications with their OpenServer product, like Apache, Samba, Tomcat, to name a few. All someone else's work. Yet they claim to be 'innovating' to 'correct the imbalance.' What sociopathic, pathological liars. These guys seriously remind me of Scott Peterson.

Isn't it especially ironic now that IBM is accusing The SCO Group/Caldera of using IBM's code in full violation of the license from which they borrowed it from? Then to read some of the statements made by McBride from the past (keeping in mind they are profiting from their illegal distribution of IBM's, and many others code in Linux):

SCO's McBride said the company has looked at its code closely in this regard, and "we have no GPL violations, as there is absolutely no Linux kernel code in our Unix products." - Darl McBride, 2003-JUNE-16

"We've felt from Day 1 in this case that building your [business] on the GPL is like building your headquarters on quicksand," McBride said. "Everyone is terrified that their intellectual property is going to get sucked into this GPL machine and get destroyed."-- Darl McBride, 2003-AUG-14

"[..] At a more general level (and surprisingly for a Linux distributor), he found the entire free-software trend 'communistic,' he says: 'We don't get the whole free-lunch thing.'" - Darl McBride, 2003-AUG-28

Collaborative efforts synergise.

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  • McLying - Authored by: Darkelve on Thursday, August 19 2004 @ 05:10 AM EDT
IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: piskozub on Thursday, August 19 2004 @ 03:00 AM EDT
> It's 5 AM January 12, 1945, on the banks of the Vistula.

Yes. But the nice thing is that IBM, unlike the Russians in 1944, did not wait
until the Warsaw Uprising (read for FOSS commumity) bleeds itself to death,
before commencing the offensive.

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License fees?
Authored by: Lord Bitman on Thursday, August 19 2004 @ 03:41 AM EDT
Wasnt SCO trying to claim license fees not for the GPL'd code, but rather for
the parts of linux which SCO now claims to own?
There have been many reasons pointed out in the past (such as SCO continuing to
distribute code under the GPL even after it claimed that portions of the code
were theirs and could not be distributed under the GPL, or SCO's refusal to give
information which would have been required to remove offending code if any
actually existed) which could potentially null or at least diminish that
argument, but IBM seems here to have pointed out none of them at all. IBM listed
some dates, but did not mention key information which would have made those
dates anything more than trivia.

Perhaps someone here can clarify. I dont see any violation of the GPL in
demanding license fees for the code which you claim to own, which you did not
intend to be released under the GPL.
As for publically denying the legal foundation of a license which your company
continues to use, well that just makes you a lousy bussinessman, not a violator
of the license. (yes, you must accept the terms of the license, but note that
the GPL also says that your acceptance of the license' terms are based on your
distribution of the code, not on whatever public statements you make)

-- 'The' Lord and Master Bitman On High, Master Of All

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Thursday, August 19 2004 @ 04:03 AM EDT
The old five point palm exploding heart method ....

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The GPL doesn't need to be tested in court
Authored by: Anonymous on Thursday, August 19 2004 @ 04:04 AM EDT
The GPL isn't really a license... it's mostly just an exception to copyright law
and copyright has been tested in court countless times. The name is bad... it
should be called the GNU Copyright Exception or something simliar but way more
clever. If I ask PJ to make a copy of one of her posts she has the option to say
yes, no, or only if you write it out with a quill pen using chicken blood. If I
choose to use cat blood then the deal's off and she can sue me for copyright

I fail to understand why so many people don't understand this. I really didn't
and still don't understand why SCO's lawyers would try to invalidate the GPL
since it was their only defense for blatant and willfull copyright violations.
IBM's lawyers obviously got this though. If something happens and SCO doesn't
get kicked down hard it'll be the greatest travesty of justice ever.

[ Reply to This | # ]

Yay! and also Woo!
Authored by: martin_e on Thursday, August 19 2004 @ 04:55 AM EDT
Fantastic, what a lovely court document (hmm, never thought I'd make that
comment about anything!). So not only are they turning the tables so
dramatically but they can also do exactly what SCO hasn't - identify, with
specificality, the lines of code which are infringing copyright!
Go Big Blue Go! (Another comment I never expected to make).

... and they submitted it on my birthday (aw...)


(PJ - when SCO gets "crushed like a bug" you're gonna need to prepare
for a month long hangover ... there's a lot of drinks coming your way!)

[ Reply to This | # ]

Hey, Eben Moglen
Authored by: Anonymous on Thursday, August 19 2004 @ 05:43 AM EDT
This is how *real* lawyers do it.

[ Reply to This | # ]

Simple Logic
Authored by: Tomas on Thursday, August 19 2004 @ 06:08 AM EDT
IF the GPL is valid THEN SCO has violated copyright law.

IF the GPL is invalid THEN SCO had violated copyright law.

THEREFORE SCO is guilty of copyright law violations.

IBM has put this together beautifully.

Engineer (ret.)
We miss you, Moogy. Peace.

[ Reply to This | # ]

Could IBM use this to get discovery on all SCO unix?
Authored by: Franki on Thursday, August 19 2004 @ 06:27 AM EDT
I'd love to see the tables turned and SCO ordered to produce ALL code for SCO
UNIX variants from the beginning of time.

If this injunction is denied without prejudice, IBM could ask for discovery on
SCO UNIX variants to look for IBM copyright code.

IBM: your honour, they should just give us access to the CVS system!

If any SCO UNIX variant contains IBM copyright code (either from Linux or
otherwise) SCO would be in a whole world of hurt. And an injunction now would
only block SCO from distributing Linux, but one later would block them from
selling anything.. and that would show the world what most already know.. SCO is
really nothing but a litigation company.

It's all good entertainment until the time when it is ruled that the Novell
contract wasn't a legal transfer of copyright. Hopefully this will vindicate the
GPL in court, and then Novells case will render it moot from SCO's perspective.



Is M$ behind Linux attacks?

[ Reply to This | # ]

I can hear Darl now...
Authored by: Anonymous on Thursday, August 19 2004 @ 06:29 AM EDT
"Isn't the GPL awful? Here we are, the innocent party, with our IP being abused, and we are being pursued under the GPL for distributing our own code. Don't use GPL code - it's dangerous." That's what I would say if I was a slimey weasel who was being paid to FUD. Naich.

[ Reply to This | # ]

Is this the last PSJ?
Authored by: jmc on Thursday, August 19 2004 @ 06:39 AM EDT
It seemed to me that the Nazgul hit hard with the Right hand on Friday against
most of the claim, then followed through with the Left on Monday with a PSJ
motion on CC8.

Might we be due a further right this week whilst SCO is reeling?

Possibly on the "you infringed the copyright by selling AIX after we
revoked the irrevocable contract for reasons we've now dropped" claim?

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: RangerKnight on Thursday, August 19 2004 @ 06:49 AM EDT
IBM Hulk #!/bin/bash puny SCOX!

[ Reply to This | # ]

SCO's case is losing impact in the industry
Authored by: Anonymous on Thursday, August 19 2004 @ 06:49 AM EDT
"The back and forth argument is typical of what has been characterized by some as a "food fight" or a "playground squabble." But while the legal aspects of the case roll on, Stephen O'Grady, a senior analyst with RedMonk, suggests the fighting is starting wear thin with vendors and customers.

The impression that the case is without merit is supported by the fact that we have essentially stopped receiving questions about the case from vendors and enterprises with investments in Linux," O'Grady told "This implies that these firms see little risk to their businesses from SCO's claims."

Read more here.

[ Reply to This | # ]

How much is SCO actually worth?
Authored by: Anonymous on Thursday, August 19 2004 @ 07:35 AM EDT
There are a couple of points from the APA that have been bugging me ever since I
read them...

First, on 4.18 it says

> 4.18 Development of Merged Product.
> Following the Closing, Buyer shall diligently and
> vigorously market, sell and promote the Business. ...

I take this to mean that SCO is obligued to continue promoting its UNIX
business. If at any time they don't, they will have breached the APA and it
would be terminated.

That explains why SCO is so eager to keep on saying their first interest is
promoting their UNIX sales. It also explains their refusal to become a litigant
company as requested by BayStar (they would no longer have anything at all to
litigate over).

It also places an additional constraint on any takeover... but Ammendment 2
states as well

> B. Except as provided in Section C below, and
> notwithstanding the provisions of Article 4.16, Sections
> (b) and (c) of the Agreement, any potential transaction
> with an SVRX licensee which concerns a buy-out of any such
> licensee's royalty obligations shall be managed as
> follows:
... ...

> C. Novell may execute a buy-out with a licensee without
> any approval or involvement of SCO, and will no longer be
> bound by any of the requirements stated in Section B.
> above, if: (i) SCO ceases to actively and aggressively
> market SCO's UNIX platforms; or (ii) upon a change of
> control of SCO as stated in schedule 6.3(g) of the
> Agreement.

Which I take to mean that in the event of SCO not maintaining their SCO UNIX
line *aggressively*, or a take over (a change of control of SCO), Novell
recovers some significant rights.

Now this means that anyone buying SCO would lose some very important rights in
doing so, thus decreasing the net worth to be gained by acquiring SCO. That is,
SCO as it is now has a guarantee to collect SVRX licenses, but anybody buying it
would be risking Novell changing any of the licensees' conditions in their own

Now, consider this: SCO is collecting X in fees. You buy them and Novell now
renegotiates with SVRX licensees so they no longer need to pay licenses (e.g. if
they subscribe to Novell Linux instead). What are you left with?

Furthermore, assume Novell does it step by step: all along the way you must
aggressively maintain and market SCO Unix line if you don't want to break the
APA and lose all other remaining licensing fees...

To me this sounds like a tar pit to get stuck while your resources are being
drained by maintaining a diying OS and irremediably losing licensees...

So, given the APA, how much is SCO actually worth? I'd say it is indeed a
negative net value to take SCO over. And this may explain as well why IBM would
rather go for the jugular than negotiate with SCO.

Jose R. Valverde

[ Reply to This | # ]

SCO will have to fight this one hard
Authored by: DonK on Thursday, August 19 2004 @ 07:57 AM EDT
But they can prevail (possibly) on this issue.

They would have to show that the SCOSource license charges royalties ony on any
SCO code that may (or may not) be contained in Linux, and that despite the fact
they do not agree on the validity of the GPL they have complied with its terms.
(Thats why the code is still available.)

But by doing so they would have to essentially argue against many of the claims
they have made against IBM.

I think IBM is merely allowing SCO to paint themselves further into a corner. If
they don't fight this they oen themselves up to untold lawsuits, if they do they
hurt their own case.

Although I expect a press release saying "There it is! IBM is admitting the
illegal derived stolen code they dumped in. They themselves are showing it, now
do you believe us?"

Spin is the only thing they have.

[ Reply to This | # ]

Copyright misuse defense?
Authored by: Anonymous on Thursday, August 19 2004 @ 08:06 AM EDT
I don't claim to be an authority on these matters -- I am
just analyzing this case in the same way one might try to
analyze a chess match by reading the diagrams of the board
printed in the newspaper. I'm not thoroughly researching
anything, and anything and everything in this posting may
be wrong. But I think it may be worthy of discussion.

Before anyone labels me a troll, you should realize that
IBM's lawyers have to be giving serious thought to the
possible defenses and counterattacks to this motion SCO
might try to use. So it is definitely not troll-like for
people here to do so.

That said, I cannot quickly think of many ways SCO might
respond without being laughed out of court. But there
might be at least one.

A defense might be based on the doctrine of
Copyright Misuse. If you search for this phrase on
Google, you will find that copyright misuse is a defense
that can be raised by an infringer against someone who
tries to secure an exclusive right or limited monopoly not
granted by copyright law and against public policy. In
the past, the defense has been raised primarily in cases
in which the copyright owner tried to prevent competition
in ways not covered by copyright law, or prevent criticism
or public discussion of a product. In many cases, the
doctrine was raised in cases, but not either not used to
decide the case or the defense was not successful.
However, to be a successful defense, the misuse does not
have to be against the party asserting the defense, and
the result is that the copyright becomes unenforceable for
the period of misuse, until the misuse is cleared.
Effectively, in most cases, this would be tantamount to
the loss of the copyright.

SCO might argue that the requirement that modifications
and additions to GPLed code constitutes a copyright misuse
and is against public policy, and may have already
anticipated IBM's motion by their previous public
pronouncements that the GPL is unconstitutional, void or
voidable, anti-capitalist, fattening, and generally evil.
However, these arguments don't really seem to go over too
well and I don't see how they fit well into the legal
underpinnings of the doctrine.

In particular, I don't see how requiring another work that
incorporates a GPLed work to also be GPLed gives the
original copyright owner any "exclusive right or limited
monopoly not granted by copyright law and against public
policy." It appears pretty certain that any work that
literally incorporates the GPLed work is a derivative
work, and an exclusive right to prepare derivative works
based on the copyrighted (GPLed) work is one of the rights
granted by copyright, so no exclusive right is granted
that is not already granted by copyright law. Moreover,
there is no "exclusive" right created at all -- the GPL is
actually permissive at giving *everyone* certain rights to
the creative work.

Furthermore, the copyright misuse cases so far seem to be
saying that "against public policy" means either
restriction of free speech or monopolistic behavior. I
don't see how granting permission to someone to use your
work in its entirety in any way they see fit as long as a
derivative work is GPLed restricts free speech or is a
monopolistic behavior. That person wouldn't be allowed to
use your work otherwise under copyright law, so there is
no extension of the GPL/copyright holder's rights beyond
those already given by copyright law. And, as far as I
can see, even if an author is required to GPL his work
when it is distributed as part of a GPL/derivative work,
the GPL does not seem to restrict him from using or
distributing his own work with more standard copyright
restrictions when it is distributed entirely separately
from the GPL/copyrighted work, or with other
non-GPL/copyrighted work. I would imagine that someone
receiving the work under a license other than under the
GPL would have to separately obtain another copy licensed
under the GPL before being allowed to copy and distribute
that work himself, however.

(I like that term -- GPL/copyrighted -- it's better than
GNU/Linux, because it indicates that GPLed work really
*is* copyrighted and supported by copyright law)

So I can imagine them raising it in defense to this motion
for summary judgement, and they might not even get laughed
out of court for raising it. I suspect IBM is already
prepared for it and ready to answer it.

The only other way I can think of is for SCO to claim that
IBM's works are contractually theirs or are licensed to
them other than through the GPL, so that there is no
copyright infringement. But I'm not smart enough to think
this one through. This claim probably is inexorably
intertwined with the other causes of action, and the
copyright misuse issue already gave me a headache.

By the way, I don't know if anyone noticed the following
information at
regarding one of the exhibits (243-1) IBM filed with the

"Docket Text: SEALED DOCUMENTS: 9 boxes of SEALED Exhibits
filed by IBM to Declaration of Amy F. Sorenson in Support
of IBM's Motion for Partial Summary Jgm on its
Counterclaims for Copyright Infringment (Contains exhibits
5.1-5.3, 6.1-9.3, 10.1, 10.3, 11.1-20.3) Clerk's Note:
These boxes are housed in the 5th floor sealed room of the

NINE BOXES (!!) of evidence in support of the MSJ for the
copyright infringement counterclaim! IBM must have
rented a U-Haul to bring all this evidence to court. This
is more boxes of evidence than I had boxes of possessions
the first time I moved. (I think I have a few times that
amount now, but still ...!)

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Thursday, August 19 2004 @ 08:21 AM EDT
For ignorant USAians it's not Hoist, but Foist.

[ Reply to This | # ]

Curious - Doesn't include CC 6
Authored by: fjaffe on Thursday, August 19 2004 @ 08:24 AM EDT
Something odd about this Motion and the memorandum. They don't mention Counterclaim 6. I wonder why!

For a refresher, from docket 127 (IBM's second amended counterclaims against SCO)

Breach of GNU General Public License

144. SCO has taken source code made available by IBM under the GPL, included that code in SCO's Linux products, and distributed significant portions of those products under the GPL. By so doing, SCO accepted the terms of the GPL (pursuant to GPL § 5), both with respect to source code made available by IBM under the GPL and with respect to SCO's own Linux distributions.

145. 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.

146. Based upon its breaches of the GPL and the misconduct described herein, SCO's rights under the GPL, including but not limited to the right to distribute the copyrighted works of others included in Linux under the GPL, terminated (pursuant to § 4 of the GPL). The GPL prohibits SCO from, among other things, asserting certain proprietary rights over, or attempting to restrict further distribution of any program distributed by SCO under the terms of the GPL, except as permitted by the GPL.

147. As a result of SCO's breaches of the GPL, countless developers and users of Linux, including IBM, have suffered and will continue to suffer damages and other irreparable injury. IBM is entitled to a declaration that SCO's rights under the GPL terminated, an injunction prohibiting SCO from its continuing and threatened breaches of the GPL and an award of damages in an amount to be determined at trial.

Anyone have any ideas? I'm struggling to understand how the judge would grant the PSJ motion on CC 8 without ruling on the SCOX's breach of the GPL as specifically alledged in this counterclaim. Or why, for the sake of Judicial Efficiency IBM wouldn't try to obtain judgment on both CC at one time.

I welcome any insights anyone can provide.

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Thursday, August 19 2004 @ 08:33 AM EDT
Yeah, they are going for the kill

[ Reply to This | # ]

Not THEIR Linux??
Authored by: turambar386 on Thursday, August 19 2004 @ 09:00 AM EDT
Just a reach, but could SCOG argue that they are only selling SCOsource licenses
to customers of other distros?

The logic would be "we are only selling our binary only licenses to people
using Red Hat Linux. Since we do not distribute Red Hat Linux, we are not
violating the GPL. Our SCOsource license does not apply to SCO OpenLinux
customers who are free to use their software under the terms of the GPL."

I'm sure that this will cause them problems with other PSJs, but it may be a way
out for this one.

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Thursday, August 19 2004 @ 09:44 AM EDT
Is it a beautiful thing: the same interests that serve the rest of us, serve
IBM, too. IBM didn't have to contribute that code, but they saw the power of
the collective consciousness of the Linux Community, and gave it more code to
work with.

That recent German case on the validity of the GPL was just a start. This case
is precendent setting for the GPL. And we have quite possibly the world's best
lawyers working on it. I can see it in their writing. I get the sense that
they are enjoying their work.

Thank you, IBM, for great reading and a fine defense of thE GPL.

[ Reply to This | # ]

A thing of beauty
Authored by: Thomas Downing on Thursday, August 19 2004 @ 10:04 AM EDT

I've just read the memorandum in support of PSJ on the eigth counter claim. It's wonderful stuff. Of the whole document, my favorite sentance is just perfect: it sums up the whole case, all the FUD around the GPL, the value of it, and all the millions of words that have been written pro and con around Linux, SCO, and the GPL.

SCO cannot violate the covenants that led to and underlie Linux without forfeiting the benefits those covenants conver

Lincoln would be proud of that one.

Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc.

[ Reply to This | # ]

I think this is a key 'domino'
Authored by: Night Flyer on Thursday, August 19 2004 @ 10:05 AM EDT
Remember, IBM is a profit oriented company.

Though we talk about IBM's financial pockets being deep, the managers that have
to sign off on the legal bills for multiple millions are under pressure to

It is my opinion that, in turn, the IBM legal department is under pressure to
show tangible results ASAP.

From my read of the situation, if IBM wins the 8th counter claim, many of the
other issues will become ripe for summary judgement as well. (Think of SCO's
claims as a row of dominos, they all seem to stand steadily by themselves until
one falls... oops.)

Personally, I think it is a good tact.

Veritas Vincit: Truth conquers

[ Reply to This | # ]

Security isnt MS's only problem
Authored by: Anonymous on Thursday, August 19 2004 @ 10:06 AM EDT
Thomas Edwards - a Microsoftie - at the Internatioal Geographic Union in Glasgow
admitted to the following PR disasters.

1. Kashmir

On a map of India and pakistan 8 pixels out of a total of 800,000 were coloured
dark green rather than light green. This map appears to indicate that the
disputed region of Kashmir was non Indian. This occured in the Windows 98 time
zone feature. 200,000 copies had to be recalled as a result.

2. Kurdistan

The original Encarta 95 included a map of Turkey which included a label
"Kurdistan". This is an area in Eastern Turkey than the Kurds claim as
thier own and is a deeply political issue. The Turkish Government were deeply
offended. MS distributers in Turkey were arrested (not kidding) nd questioned.

The references were rapidly removed. As might be expected this in turn lead to
protests from the Kurds.

3. Offensive slang

Windows XP has a section where the user may set up a profile including thier
gender. Three opions were given: 'varon' (male), 'hembra' (female) and 'no
especificado' (not specified). Hembra unfortunately in some part of Latin
America is a degrogatory term for a woman (roughly "bitch" in

4. Taiwan

MS Small Business Srver 2000 distributed in China listed Taiwan as a seperate
country. This is very political in China where it is claimed that Taiwan is a
rebel province. To date Taiwan has been refused a seat in the UN because fo
China's opposition. The distributors and MS staff were arrested and questioned
about this.

5. Hila

An early version of Office XP included an icon with the moon and stars closely
resenbling theb scared Islamic hial symbol. This one did not 'make it into the

5. Kakuto Chojin

This was a fighting game released by MS in November 2002. Part of the background
sound used here was Koranic chanting. After consultation with a Muslin linguist
who "went ballistic" after hearing the material, MS decided to go
ahead and seel the 75,000 copies already made. (Dont you just love Christmas?)
Three months later the Suadi authorities sent a fax to MS HQ stating the game
has been banned in Saudi Arabia and demanding an apology.

6. Uruguay

The Queens birthday was (acording to MS) celebrated in Uruguay. Uruguay has
enver been part of the British Empire or Commonwealth and has no reason to
celebrate Her Majesty's birthday.



[ Reply to This | # ]

Best SCO Defense
Authored by: Scorpio on Thursday, August 19 2004 @ 10:46 AM EDT
I have spent several hours trying to decide what is SCO's best defense. If I
were SCO, I would immediately fire all outside attorneys for incompetence and
ask for a continuance until new counsel can be brought on board and is up to

The side benefit for SCO is that they can then sue their present attorneys for
legal malpractice. And they have Groklaw as a witness.

Of course, this does not get SCO off the hook, but it does delay their death a
few months.

[ Reply to This | # ]

What timescale are we talking about?
Authored by: biscuit on Thursday, August 19 2004 @ 11:08 AM EDT
This is like watching a VERY slow soap opera (where the bad guy finally gets

How long will it take for this to be dealt with? What sort of delays can occur?
SCO has been keeping all the other lawsuits going for, what seems like, forever,
trying to forstall the inevitable.

However, this looks like a clearer case of infringement than any previously
submitted suits.

[ Reply to This | # ]

What about class action suits?
Authored by: Anonymous on Thursday, August 19 2004 @ 11:08 AM EDT
Once IBM wins, does the judgement only apply to IBM? Should we join IBM in a
class action suit to protect everyone in general, i.e. users, developers,
businesses etc?

[ Reply to This | # ]

Is it national lazy journalists day-off/week or something?
Authored by: Anonymous on Thursday, August 19 2004 @ 11:17 AM EDT
I've been watching the news feeds

And so far I've seen not one article on this, except on groklaw (and sites with
feeds of that) - and I know lamlaw jhas some coverage

But apart from that nothing

I find this amazing, as armies innocent trees were killed, covering the news
when SCO issued a terse press release last year saying the GPL was
unenforceable, illegal and violative of US laws...

...Yet when there's real news... nothing -- surely this is one of the BIGGEST
parts of the case (i.e. GPL being enforced)


[ Reply to This | # ]

Authored by: AG on Thursday, August 19 2004 @ 12:18 PM EDT
Why didn't IBM specify damages? Or is this something only a jury can decide?

[ Reply to This | # ]

OCR in progress for IBM-231: Memo in support of PSJ CC8
Authored by: Thomas Frayne on Thursday, August 19 2004 @ 12:40 PM EDT
When it finishes, I'll remove addresses, post as a response to this post, spell
check the OCR errors, and email the rtf file to Jim Fennel.

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: k on Thursday, August 19 2004 @ 01:07 PM EDT
From Forbes: SCO hits back at IBM dismissal bid

"The SCO Group has responded robustly to IBM's attempt to have a US district court dismiss some of SCO's main claims in its multi-billion dollar lawsuit."

The robust response seems to be: "SCO disagrees with IBM's interpretation of their contractual obligations regarding derivative works,"

/ k

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Superbiskit on Thursday, August 19 2004 @ 01:09 PM EDT
Here's the lesson. You don't ever want IBM legally mad at you.

Recalling what IBM has often been labeled, thing of walking up behind the beast and saying: "Look at this silly old t. rex, so slow, doesn't he know he'll be extinct in another million years? Let's just kick him in the butt and grab his food."

The next sound you hear will be 'crunch.'

[ Reply to This | # ]

Repudiation of the GPL
Authored by: elcorton on Thursday, August 19 2004 @ 02:02 PM EDT
Still trying to digest the implications of IBM's theory that SCO has forfeited
its right to copy GPL software because it has "repudiated and disclaimed
the GPL as a source of legal rights." This is not just an academic issue;
it could have a major effect on SCO's UNIX business. Here are some

1. Repudiation applies not only to Linux, but to any program licensed under
the GPL or LGPL, including those distributed with SCO's UNIX products.

2. Repudiation is not a breach of the GPL, nor is it non-acceptance of the
GPL. Acceptance or non-acceptance is determined by actions, not words. If
you exercise the rights conferred by the GPL in accordance with its
terms,you are accepting the license, no matter what you say.

3. Whether SCO has forfeited its rights by repudiation is independent of
whether it has forfeited its rights by breach.

4. All the examples of repudiating statements offered by IBM come from
SCO's legal filings, not from public statements such as Darl's "open
Repudiation means that you challenge the enforceability of the license in
court. If you do, you can't also claim protection under it.

5. None of IBM's previous filings or pleadings mentions the idea of

It was pointed out on the Yahoo SCOX board that Fyodor, the author of
nmap, has revoked SCO's right to distribute his work on the grounds that
SCO has refused to accept the license.However, Fyodor's position is much
weaker than IBM's. SCO hasn't refused to accept the GPL.There's no
contract to sign. You accept the license by exercising the rights it grants
you. If you exceed the rights, you're accepting and breaching. How does
Fyodor allege SCO breached his license? It breached the Linux copyright
holders' licenses, but that's not his problem. Just because those licenses
have the same terms as Fyodor's license, that doesn't mean SCO
automatically breaches all when it breaches one. Fyodor also alleges that
SCO said his license was invalid. So what? Does the GPL restrict the
licensee's freedom of speech? You can say anything you want, as long as
you don't step on the blue-suede shoes of the license terms.

IBM, on the other hand, is not arguing that SCO didn't accept IBM's license.
It argues that SCO can't take an inconsistent legal position. SCO is claiming
in court that it's not bound by the GPL, while also claiming protection under
the GPL. This argument is quite independent of any allegation as to
whether SCO breached the terms of the GPL. The interesting question is, if
the argument is upheld, does it make SCO in effect a GPL pariah? Can non-
kernel GPL licensors, including Fyodor, pursue SCO for infringement, even
though it never tried to collect a license fee for their products?

[ Reply to This | # ]

public domain
Authored by: Anonymous on Thursday, August 19 2004 @ 02:35 PM EDT
Oh, I get it. SCO thinks they can distribute linux because the GPL is invalid,
and so any code under it is really public domain. Of course, that doesn't make
any sense, but who ever claimed that SCO's ideas make sense?

[ Reply to This | # ]

IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Thursday, August 19 2004 @ 02:42 PM EDT
Many others have commented about the various ironies involving SCO at this point
and how they've helped IBM paint them into a corner. My own favorite has to do
with Microsoft.

As a matter of fact, MS bought a $20 million license from SCO, urging others to
do so (only SUN followed suit?) and helped arranged for $50 million in
investment in SCO. Essentially MS has directly and indirectly provided SCO with
their legal war chest. As a matter of opinion (mine) they also helped with the
strategy for the case -- some of the arguments are classic BillSpeak.

It must have seemed like a no lose situation for them. SCO files suit, IBM buys
them out -- MS's archest enemy wastes a billion dollars or so and the FUD
marches on ('What other IP transgressions are there in Linux?'). Or IBM fights
and the case drags on for years as SCO creates the legal equivalent of a Rube
Goldberg contraption and Linux is tied up in doubt and fear until Longhorn limps
out of the gate. Or SCO actually wins something and Linux is crippled if not

By focusing a part of the case on the GPL, and crafting it as well as IBM has,
this case -- as many have already suggested -- could remove all doubt about the
validity of the GPL and the IP in Linux. Effectively MS has provided the
funding for the case which will remove one of the largest barriers to wider
adoption of Linux by the corporate world. Rarely is poetic justice so deeply

[ Reply to This | # ]

Amount of Code, just what I wanted them to say
Authored by: GLJason on Thursday, August 19 2004 @ 03:06 PM EDT
This is hilarious! SCO is suing IBM because IBM contributed it's own code from AIX. Out of 63 million lines in AIX, less than 100,000 are licensed from UNIX SYSV. Now IBM is showing that SCO has misused almost 800,000 lines of their code. The copying from most of it is identicle to IBM's, including IBM's copyright notices in the comments.

Actually, I'm surprised they are asking for summary judgement on this already. I would almost rather take this to the jury as it shows how ridiculous SCO's case really is.

It appears that IBM is going after SCO not only for its own distribution of Linux, but also for collecting license fees! This is awesome! I've posted here before how their scheme appears to be illegal. By selling binary-only "IP Licenses" for whatever code of theirs may be in Linux, SCO was effectively licensing the rest of the code in Linux (including IBM's) outside of the GPL. They tried to get around it by saying they were only selling a UnixWare license, but of course that's not how it was being marketed.

As detailed above, SCO is attempting to collect, and has collected, licensing fees from Linux users, in violation of any permission or license it may have had under the GPL and LGPL. Because SCO has attempted to license Linux in violation of the GPL and LGPL, any permission or license it may have had under the GPL and LGPL (to copy the IBM copyrighted Works) terminated. The GPL and LGPL expressly provide that any attempt otherwise than in accord with the GPL's or LGPL's restrictions to sublicense works subject to the GPL or LGPL "is void, and will automatically terminate your rights under this License". SCO's efforts (under whatever guise) to collect licensing fees for GPL- or LGPL-licensed activities run afoul of the GPL and LGPL.

[ Reply to This | # ]

The dog ate our wookie!
Authored by: Anonymous on Thursday, August 19 2004 @ 03:25 PM EDT
And the wookie ate the homework...

which was mixed in with the million lines of code...

in the briefcase...

which was lost on its way back from Germany…

with the MIT team...

who are still missing...


who also took the dog!

This is SCOG's only possible defense.

[ Reply to This | # ]

An interesting analysis
Authored by: davcefai on Thursday, August 19 2004 @ 03:28 PM EDT
At the risk of again GrokLawing The Register here is an interesting analysis by
Thomas Greene:

[ Reply to This | # ]

Something seems odd, here.
Authored by: Anonymous on Thursday, August 19 2004 @ 04:00 PM EDT
I think that the celebration is early, and that the analysis has overlooked one
critical piece. The Nazgul have presented before the court a perfect example of
"breaches with specificity" that they have been asking for from the
time SCO filed the lawsuit.

The next time that they ask for "by file and line", they have an
example to beat the SCOundrels over the head with.

By merely filing this, SCO's "I have this documentation in a breifcase in
Germany, but I'm not going to show you" tap-dance is being annihilated.

- -

HOWEVER, I am worried that IBM will lose at least part of this counter-claim ...
in reverse order:

IBM's core claim is that SCO is charging people for IBM's copyrighted software,
in breach of the GPL.

However, SCO's response will boil down to, "Your honor, we are charging
only for SCO's copyrighted software - which is our right. The presence or
absence of the software quoted by IBM is moot - we will charge the same amount
whether or not it is distributed along-side our own."

I originally wrote, "Anyone out there who believes that SCO will charge
less for a Lunix license if IBM's software is not included?" ... but then I
realized that SCO has done precisely that - they are charging only for Linux
kernel 2.4 and higher ... kernel 2.2 was not included when the lawsuits were
first filed.

Heh. Oops. I was worried that I would be helping SCO by posting this (since I
know that they read Groklaw), but now I do not feel so bad, anymore - IBM might
win the second part of the counter-claim after all.

- -

Okay, so moving on to the first part, where SCO repudiated the GPL, and
continued to distribute under it, anyway.

Since SCO's claims that the GPL is invalid have not been decided in the court,
aren't they required by contract law to continue to act as if it was valid? If
so, isn't that sufficient reason to deny the first part?

- -

Not a lawyer. Not a paralegal. Just paid to use my brain for a living.

[ Reply to This | # ]

Class Action?
Authored by: Anonymous on Thursday, August 19 2004 @ 04:07 PM EDT
Shouldn't this issue be escalated to a class action, on behalf of everybody that
holds copyright to a piece of the Linux kernel?

[ Reply to This | # ]

SCOX has it both ways
Authored by: overshoot on Thursday, August 19 2004 @ 04:08 PM EDT
The only way out of this one is to challenge IBM's copyright ownership.

Well, that ties nicely into some of their previous rhetoric anyway: SCOX has told some reporters that IBM's work on AIX was work for hire, with the copyrights belonging to SCOX.

My prediction: SCOX will deny IBM's copyright ownership for the CC8 claims, but vaguely. In the CC10 action SCOX will claim to hold copyrights on material in Linux, and if pressed will point to IBM's submissions.

Only if given no other alternative SCOX will claim that JFS (for instance) was a work-for-hire belonging to SCOX. Thus IBM's contributions to Linux can't be infringed by SCOX because SCOX owns the copyrights, a question of fact to be determined at trial by jury.

If someone points out that work-for-hire has some pretty explicit requirements and that the AT&T agreement doesn't even come close, SCOX will point out that that's a question of contract interpretation to be (you guessed it) determined by a jury.

[ Reply to This | # ]

Did IBM miss a counterclaim?
Authored by: darkonc on Thursday, August 19 2004 @ 04:55 PM EDT
I have to run off quickly, so I'm just going to blurt this out:.

IBM had signed a contract giving them a permanent paid up irrevocable license to the UNIX code. As such, neither Novell nor SCO would have the right to revoke the license. Any response would have to be other than that (e.g. apply for monetary damages and/or an injunction preventing ongoing violations, etc.).

SCO's claims to have revoked IBM's license would either be a breach of contract (if they had properly inherited the rights and responsibilities of the contract, or tortious interference with the IBM/Novell contract. (with a bit of unfair business practices thrown in for seasoning).

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Will Daryl McBride please approach the bench
Authored by: LegalIdiot on Thursday, August 19 2004 @ 05:55 PM EDT
Judge: Before I pass sentence upon you, have you anything to say to the Court?

Daryl: <blank stare><look of bewilderment><another blank

Jury: <breaks out laughing>
Judge: Order in the Court!! <bang><bang><bang>
Judge: <looks up with a big grin> The Jury has found you and your many
accomplices guilty of extortion under the Racketeer Influenced and Corrupt
Organization Act, and I here by...


Darn, I woke up again! And it was just getting to the good part!

Ok, I guess I should just ask somebody that might know the real answer. What are
the chances, or what would it take, to hold Daryl McBride and party accountable
for fraud and extortion crimes that were committed. Its International in scope,
they had to have known what they were doing, they used some big financial tools
to perpetuate their crimes, and were clearly attempting to profit off of
everyone in their path.

I know the stock holders as well as their investor parties must have interest in
getting their investments back as well, but I'm wondering about the flagrant
attempt to extort so many companies through an organized and methodical, and
(lol) somewhat well thought out plan.

So, what would it take to make that a reality?

[ Reply to This | # ]

did SCO distribute GPL'd material?
Authored by: rick_2g on Thursday, August 19 2004 @ 07:46 PM EDT
<devil's advocate>
here's my question : SCO has technically been in violation of the GPL for...
what... a couple of months? ever since they pulled down the kernel sources from
their website? that would make it June 4, 2004, IIRC. it's perfectly feasible
that they haven't signed up any new business in the time since. in fact, i'd be
a bit surprised if they got any new UNIX customers in that time, given the
quality of their offerings, and all the bad press. as far as i know, the only
business they've gotten are those worthless EV1 licenses, and i don't think they
needed to distribute any software for that.

my understanding of the GPL is that the sources only need to be distributed to
anyone who recieves the compiled binaries. if i'm not missing something, then
it's perfectly possible that SCO hasn't actually breached the GPL yet, even tho
they clearly intend to. or do thier past GPL distributions require them to keep
the sources available in perpetuity, even tho anyone who recieved software from
them has had ample time to aquire the sources?

it's like someone who announces to all his friends that he's about to go rob a
corner store, but gets hit by a bus on the way there. you can't convict them
for theft then.
</devil's advocate>

possible point of error: does the GPL require SCO to distribute source to
parties not involved with the initial distribution?

what else am i missing here?

[ Reply to This | # ]

First: IANAL...
Authored by: Tomas on Thursday, August 19 2004 @ 09:42 PM EDT
Now that that is out of the way, I'd like to comment on something I've seen over
and over both here and elsewhere in reference to the GPL/LGPL.

I keep seeing folks saying essentially bazillions of developers have all
released bazillions of lines of code all under the same license: GPL. I question

No, this isn't a troll, but one way of answering my question or the other is

Q: Are all those pieces of software actually released by all those different
developers under that very same license, OR were they released under individual
licenses all based on the same model?

Why do I bother to ask?

If they are all under the SAME license then breaking it for any one product
breaks it for all, while if they are separate identical licenses based on the
same model, then each stands or falls on it own.

What difference does that make?

Possibly none, possibly quite a lot.

Right now most of us would probably agree that the GPL/LGPL license allowing TSG
to distribute IBM's additions to Linux has been broken in at least one way.

If all GPL/LGPL licenses are the SAME license, then Samba and everything other
GPL/LGPL products being distributed by TSG might fall onto the same hole, and
TSG might no longer have a license to distribute ANY GPL/LGPL code.

If, however, each GPL/LGPL license is a separate license between developer and
distributor, and all are merely based on the same "model license" just
because ONE has itself 'triggered' to terminate the additional rights granted by
the GPL/LGPL does not mean that any other's have met the same fate.

(My belief is that each is separate but identical, and therefore it is easily
possible for a distributor to have their distribution rights terminated in one
product but not in the one right next to it.)

Engineer (ret.)
We miss you, Moogy. Peace.

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IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Friday, August 20 2004 @ 12:12 AM EDT
Sorry. I didn't read all of the comments so apologies if any of this has already

been stated.

I think this forces the Judges hand on ruling on the validity of the GPL
contract. My guess is that SCO will argue that the GPL is an invalid contract
and dump as much case law as they can Lexis and Westlaw showing invalid
contracts are unenforceable, thus IBM's MSJ regarding copyright is moot as a
matter of law. I also think they (SCO) will lose big time, because I haven 't
seen anything in the GPL that classically exemplifies an invalid contract.
Nevertheless, my prediction is that the first thing you should expect SCO to
file is leave to file an overlength brief and then a ridiculously cited fat,
MPA with a lot of cases that aren't really on point.

The lesson here is that if you're the plaintiff in a lawsuit, never hand the
opposition (the defendant) evidence that they can turn around and use
against you. It gives the defendant a trmendous strategical advantage and it
makes the plaintiff look really really stupid.

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IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: Anonymous on Friday, August 20 2004 @ 01:45 AM EDT
After reading the pdfs, all I can say is that the bag IBM's holding looks pretty
full to me.

This is more fun than watching Girl Scouts threatening Rob Enderle into buying

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No settlement.
Authored by: Anonymous on Friday, August 20 2004 @ 01:46 AM EDT
IANAL... but IBM's case looks solid.

IF they press forward -> SCO is a smoking hole.
IF they get the maximum settlement -> all assets of SCO.

I don't think they're looking for anything SCO has - IP or Moneywise. (Most of
the money will ooze out to the lawyers.)

IBM wants to pierce the corporate veil and make the initiators of this whole
insanity into a smoking hole.

The value to IBM of making a very large crater or two far, far outweighs the
monetary or IP value of SCO. It makes the statement "We're very careful
our code, we _really_ trust the combination of current copyright law and the
GPL, and you can trust the pedigree of our code". A court ruling that
that stance is _far_ better than any statement, concession, or agreement SCO
can possibly make.

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Will this affect SCO Source?
Authored by: Anonymous on Friday, August 20 2004 @ 05:31 AM EDT
If the court agrees with IBM and grants this motion, will that prevent SCO from
attempting to sell licences to Linux users? From my reading of the Redacted
Memorandum in Support, it looks as if it would force SCO to comply with the GPL,
which prevents sublicensing under non-GPL terms.

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IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text
Authored by: mhoyes on Friday, August 20 2004 @ 08:20 AM EDT
You know, I've been thinking about this and after checking the SCO license, I think the way SCO is going to respond is as follows:

The SCOSource is not charging for the GPL'd code. It is an agreement that SCO will not seek to litigate with your company. Therefore, they have not violated the GPL since it says nothing about charging for protection.

The only problem I see with that is that it then sounds like a protection racket (pay us because we would hate to see something unfortunate to happen to you).



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More proof GPL is proprietary.
Authored by: Anonymous on Friday, August 20 2004 @ 03:33 PM EDT
So let's have no more of that "GPL'd stuff is non-proprietary", now,
OK? All should learn from this the lesson that SCO is being tought: GPL'd
software is proprietary software and GPL licensors can haul you into court in
the same manner as closed-source software owners like MSFT or recording

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Learning what the GPL really is
Authored by: StLawrence on Friday, August 20 2004 @ 07:10 PM EDT
The past week has been very educational for me. I had an inkling about
what the GPL means and what its effect is, but I had never actually looked
at it before. It's a fascinating document! In the back of my mind I had
sorta been wondering how an unsigned thing could be legally binding.
Now I understand.

I just spent a few minutes browsing SCO's site looking to see if they had
posted any kind of verbal response to the recent filings by IBM. Nothing new.
But I went to their SCOSource page
and discovered some links to some interesting stuff. They've got a page
containing a plaintext copy of the GNU Public License, verbatim. So if anyone
wants to read it themselves, there it is.

There's also an "Open Letter on Copyrights" link, which is Darl's
manifesto of last December. In the context of IBM's latest filing, it's
really hysterical to read. Back in December, Darl was equating
open source advocates with anti-copyright anarchists. It's so funny
that the cornerstone of the GNU's power is default copyright law,
and that's what's now threatening to make SCO history. I wonder
if Darl has figured it out yet.

If you want a good laugh, read Darl's pontifications about the Open Source's
anti-Americal anti-copyright anarchist commie GPL (you can find it at Then read IBM's latest filing.
I bet Darl's letter is removed from SCO's site soon (if they read this)...

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