decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text
Saturday, August 21 2004 @ 10:53 PM EDT

Here is IBM's Redacted Memorandum in Support of IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (8th Counterclaim) as text.

The first thing that stands out is that we learn in paragraph 66 that IBM was among those companies that got a letter from the first batch SCO sent out in May of 2003, the one sent to the Fortune 1000 companies. The same paragraph mentions something we've been too busy to write about, but it definitely belongs in our archives, that SCO on August 10 threatened to increase the cost of its SCOSource license, "which it says companies running Linux need to buy in order to avoid being sued":

"Two types of IP licenses are currently available from SCOsource: 'paid up' licenses that give permanent indemnity, and annual licenses, which vary between one-fifth and two-fifths of the cost of a full version.

"SCO may decide not to offer both options in the future and could, for example, decide to insist on an annual payment that would be more lucrative in the long term."

The other thing I noticed is that IBM isn't asking at this time for damages. They are carefully carving out just the liability question, which is something you can do in a summary judgment motion. There is a difference between a motion to dismiss and a summary judgment. The name alone tells you what that difference is. In a summary judgment motion, the relief you are asking for is also that you want it dropped from the case, whatever the subject matter of the motion is, but you want it to go away with a ruling, or judgment, that you are not liable or, as in this case, that the other guy is.

Because of that distinction, the judge can respond in several ways, whereas in a motion to dismiss it's yes or no only, pretty much.

Here, in a summary judgment motion, you are essentially carving out what you think you can win on the law alone, without needing any facts brought to a jury. The only way to defeat such a motion is to bring forward facts sufficient to show that there are matters that are in dispute that need to be brought to a jury and that there is at least some set of facts that would make it at least conceivable that you could prevail. IBM cites In Re Grandote Country Club:

"Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Fed. R. Civ. P. 56(c). In reviewing a summary judgment motion, the court is to view the record 'in the light most favorable to the nonmoving party.' Thournir v. Meyer ,909 F.2d 408 , 409 (10th Cir. 1990) (citation omitted). The purpose of a summary judgment motion, unlike that of a motion to dismiss, is to determine whether there is evidence to support a party's factual claims. Unsupported conclusory allegations thus do not create a genuine issue of fact. See United States v. Simons,129 F.3d 1386 , 1388–89 (10th Cir. 1997) (citing Allen v. Muskogee, Okla.,119 F.3d 837 , 843–44 (10th Cir. 1997)). To withstand summary judgment, the nonmoving party 'must come forward with "specific facts showing that there is a genuine issue for trial."' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e ))."

A similar explanation of the standard for summary judgments is found in a case not cited here, but which I found to help you understand summary judgments, Sun v. Microsoft:

"Summary judgment is proper if the record indicates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. § 56(c). A genuine issue of material fact exists only when 'the evidence is such that a reasonable jury could return a verdict for the nonmoving.' Anderson v. Liberty Lobby Inc., 106 S. Ct. 2505, 2510 (1986). Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's cases, and on which that party will bear the burden of proof at trial. Celotex Corp. V. Catrett, 106 S. Ct. 2548, 2552-53 (1986). . . . "

Mere allegations are not enough to defeat a summary judgment motion. There must be facts and evidence presented. And minor issues or disputes won't do the job either. Any dispute must be material to the case to defeat a SJ motion. From the Sun case:

"[T]he nonmoving party 'may not rest upon the mere allegations or denials of the adverse party's pleadings . . .[T]he adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial.' Fed.R.Civ.Proc. 56(e). The nonmoving party 'must do more than simply show that there is some metaphysical doubt as to the material facts.' Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 106 S.Ct. 1348, 1356 (1986). 'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial."' Id. ; Anderson, 106 S.Ct. at 2512 ('There mere existence of a scintilla of evidence . . . will be insufficient.'). However, on summary judgment, the court must draw all justifiable inferences in favor of the nonmoving party. Masson v. New Yorker Magazine, Inc., 111 S.Ct. 2419, 2434-35 (1991)."

That Sun v. MS case shows that the judge has a variety of ways to rule. In that one, the judge asked for oral argument to address certain questions that needed clarification. By this motion, IBM is forcing the issue. To establish copyright infringement, a plaintiff must prove (1) ownership of a valid copyright and (2) copying of expression protected by its copyright. IBM appears to have succeeded in doing so. If SCO fails to answer effectively, think of the consequences of having a ruling that their repudiation of the GPL includes the LGPL, as IBM here asserts, and that they can't use any GPL or LGPL code, should IBM be granted its permanent injunction relief. While SCO may not wish to distribute any Linux distros any more, they surely wish to distribute GPL applications that run on top of it. Their latest Unix offering was distinguished mainly by the Open Source components in it.

Should IBM prevail on this one point, while the ruling would affect only IBM code directly, I can see every FOSS developer on earth with a registered copyright immediately filing suit to block SCO's use of their FOSS works, and frankly SCO's legal team would likely tell them to pull all GPL and LGPL code out of everything they offer as soon as IBM wins this, because there would be no reasonable likelihood of surviving such challenges. Think of what that would mean for their business. Think too of all the FUD we wouldn't have to read any more about the GPL.

Of course, in the alternative, SCO might think it can throw in the towel on their argument that the GPL is void/unenforceable etc. and say that they had the right to distribute IBM's copyrighted works because they had a GPL license. But if they do that, then they face a challenge from a different angle. Actually, two, as we will see. First, as IBM goes on to say, they are violating the terms of the GPL by attempting to collect royalties or licensing fees for using Linux. Poof. There goes SCOSource.

See, if only SCO had paid attention to my summer school "course" in the GPL last summer, they could have spared themselves this moment. I even sent them an email last July raising questions about the license violating the GPL, an email that I was told would receive a reply, although I never did actually get one. But they now instead face the music, based on the list of exhibits IBM offers in paragraph 66 of all the times they said the license was for running Linux. Just stupid. There is no other word.

On the other hand, one of my favorite aspects of the GPL is so many business types fail to take it seriously enough to really study it, and they get caught with their pants down every time. That is the real reason there has never before been a serious court challenge involving the GPL. When Eben Moglen is in negotiations with offenders, and they wake up to what the GPL really means for them, they quickly pull up their pants and get in compliance. SCO at the moment is precisely in that position, caught with their pants down and for them it's now too late to pull up their pants and get in compliance. No matter what they do now, they are in GPL trouble. The beauty of the GPL is there is no escape. Once you violate the terms, your rights terminate, as IBM's memorandum points out:

"As detailed above (¶ 66), 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 othewise 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'. (¶ 63.)10 SCO's efforts (under whatever guise) to collect licensing fees for GPL- or LGPL-licensed activities run afoul of the GPL and LGPL.

"By its breaches of the GPL and LGPL, SCO has forfeited any protection against claims of copyright infringement that it may have enjoyed by virtue of the GPL or LGPL. SCO cannot violate the covenants that led to and underlie Linux without forfeiting the beneflts those covenants confer. Because SCO has continued to distribute and copy Linux products containing verbatim copies of IBM's Copyrighted Works after it disclaimed, renounced and breached the GPL and LGPL, SCO has infringed IBM's copyrights in those works, 17 U.S.C. § 501(a), and the GPL and LGPL afford SCO no protection against IBM's claim of infringement."

And terminate means terminate, so SCO can't now hide under the GPL. The only way a GPL-violator can get back a GPL license after a termination is by express permission of the copyright holder, in this case, IBM. Hmm. Snowballs come to mind.

And the copyright infringement issues IBM raises here, you will no doubt have noticed, include JFS. Imagine for a moment the impact on this case of a ruling that SCO has infringed IBM's copyright on JFS. If you were on a jury, and you listened to SCO talk about their alleged right to control all derivative code, including JFS, and you knew they had been found guilty of infringement of IBM's copyright on JFS, do you think it might influence your feelings about how expansively SCO is trying to interpret that contract? That's not even starting to talk about damages, an issue not part of this motion, but one that is going to be addressed at some point. It doesn't help SCO even if it could win on a point or two and be awarded say $1 million if IBM is awarded $6 million in damages in return on its counterclaims. All those analysts who talk about how much SCO could win in court never seem to notice that important detail. It's also why IBM need not be interested in any settlement, if their analysis is that they can win more than they could lose in the end in any worst-case scenario.

This document is also valuable because it clearly lays out exactly how to prove copyright infringement. Note particularly footnote 6, which deals with whether posting on a website constitutes copying and distribution.

IBM relies on several cases. One of them, Gates Rubber v. Bando we've discussed on Groklaw before and you can find it here. Our thanks go to tgf and Thomas Frayne for this work. If you want a template for HTML that Geeklog and Groklaw likes, this document would be a good model.

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

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

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff
REDACTED MEMORANDUM IN SUPPORT OF IBM'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS COUNTERCLAIM FOR COPYRIGHT INFRINGEMENT (EIGHTH COUNTERCLAIM)

(ORAL ARGUMENT REQUESTED)


Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

TABLE OF CONTENTS
Page
Preliminary Statement 1
Statement Of Undisputed Facts 2
A. Linux 2
B. IBM'S Contributions to Linux 3
C. SCO's Copying of the IBM Copyrighted Works 5
1. Enterprise Volume Management System 6
2. Enterprise Class Event Logging 6
3. Dynamic Probes 7
4. Linux Support Power PC64 7
5. Omni Print Driver 8
6. Journaled File System 8
7. Next Generation Posix Threading 8
8. Linux Kernel Support for JFS 9
9. Linux Kernel S390 Support 9
10. Linux Kernel Support for Service Processor 10
11. Linux Kernel Support for Memory Expansion Technology 10
12. Linux Kernel Support for IBM eServer iSeries Devices 10
13. Linux Kernel Support for PCI Hotplug 11
14. Linux Kernel Support for pSeries Hypervisor Terminal 11
15. Linux Kernel PPC64 Support 12
16. Linux Kernel Support for Mwave Modem 12
D. The GPL 12
Summary Judgment Standard 16
Argument 16
SCO HAS INFRINGED IBM'S COPYRIGHTS 16
A. IBM Owns the Copyrights to the IBM Copyrighted Works. 17
B. SCO Has Copied and Distributed the IBM Copyrighted Works. 17
C. SCO Lacks Permission or a License to Copy or Distribute the IBM Copyrighted Works. 21
Conclusion 23

TABLE OF AUTHORITIES

CASES

Autoskill, Inc. v. Nat'l Educ. Support Sys., Inc.,
      994 F.2d 1476 (10th Cir. 1993)
17, 18
Celotex Corp, v. Catrett,
      477 U.S. 317 (1986)
16
Computer Assocs. Int'l, Inc. v. Altai, Inc.,
      982 F.2d 693 (2d Cir. 1992)
18
Country Kids 'N City Slicks, Inc. v. Sheen,
      77 F.3d 1280 (10th Cir. 1996)
18
Eve of Milady v. Impression Bridal, Inc.,
      957 F. Supp. 484 (S.D.N.Y. 1997)
18
Ferguson v. Nat'l Broad Co.,
      584 F.2d 111 (5th Cir. 1978)
18, 19
Gates Rubber Co. v. Bando Chem. Indus., Ltd.,
      9 F.3d 823 (10th Cir. 1993)
17, 18, 19
In re Grandote Country Club Co.,
      252 F.3d 1146 (10th Cir. 2001)
16
Hotaling v. Church of Jesus Christ of Latter-Day Saints,
      118 F.3d 199 (4th Cir. 1997)
19, 20
Intellectual Reserve. Inc. v. Utah Lighthouse Ministry. Inc.,
      75 F. Supp. 2d 1290 (D. Utah 1999)
17
MAI Sys. Corp. v. Peak Computer, Inc.,
      991 F.2d 511 (9th Cir. 1993)
20
Marobie-FL, Inc. v. Nat'l Assoc. of Fire Equip. Distribs.,
      983 F. Supp. 1167 (N.D. Ill. 1997)
19
Microsoft Corp. v. Computer Serv. & Repair, Inc.,
      312 F. Supp. 2d 779 (E.D.N.C. 2004)
20
Mitel, Inc. v. Iqtel, Inc.,
      124 F.3d 1366 (10th Cir. 1997)
18
Perry v. Sonic Graphic Systems, Inc.,
      94 F. Supp. 2d 616(E.D. Pa. 2000)
19
Playboy Enters. v. Webbworld, Inc.,
      968 F. Supp. 1171, 1174-75 (N.D. Tex. 1997)
19
Wilcom Pty. Ltd. v. Endless Visions,
      128 F. Supp. 2d 1027 (E.D. Mich. 1998)
18, 20-21
STATUTES
17 U.S.C. § 101 16
17 U.S.C. § 102 16
17 U.S.C. § 106 16
17 U.S.C. § 410(c) 17
17 U.S.C. § 501 17, 20, 23
Fed. R. Civ. P. 56(c) 16
MISCELLANEOUS
Raymond T. Nimmer, Law of Computer Technology § 1:3 16
Dennis M. Kennedy, A Primer on Open Source Licensing Legal Issues: Copyright,
       Copyleft, and Copyfuture, 20 St. Louis U. Pub. L. Rev. 345, 360 (2001)
22
Jason B. Wacha, Open Source, Free Software and the General Public License, 20 No. 3
       Computer & Internet Law 20, 22 (2003)
22

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this memorandum in support of its motion for partial summary judgment with respect to liability and a permanent injunction on its counterclaim for copyright infringement against Plaintiff/Counterclaim-Defendant The SCO Group, Inc.'s ("SCO") (Eighth Counterclaim).

Preliminary Statement

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 wrltten by IBM for Linux and distributed those copies as part of its own Linux products. SCO has literally copied more than 783,OOO 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.

As is discussed below, there are no genuine issues of material fact as to SCO's liability. Accordingly, IBM is entitled to partial summary judgment and a permanent injunction on its copyright infringement counterclaim against SCO.

Statement Of Undisputed Facts 1

A.       Linux.

         1.       The development of Linux began when an undergraduate student at the University of Helsinki, Linus Torvalds, set out to create a new, free operating system. (Ex. 1 (SCO Linux Introduction Version 1.2) at 1-5.) In 1991, Torvalds began developing the Linux "kernel", the core of the operating system, and posting news of his project to Internet newsgroups, along with a call for volunteers to assist in his efforts. (Id.)

         2.       With the Internet providing for a distributed collaboration, other programmers joined to write the code making up the kernel. (Ex. 1 at 1-5.) Torvalds directed the collaboration to a version 1.O release of the Linux kernel in 1994. (Id.)

         3.       In the years that followed, thousands of developers, including developers at SCO and IBM, contnbuted to the further development of Linux. (See Ex. 2 (Ans. to Second Am. Countercls.) ¶ 45; Ex. 3 (SCO website pages identifying SCO's contributions to Linux); Ex. 4 (SCO's Fiscal Year 2000 1O-K/A) at 15, 22, 26; Bennett Decl. ¶ 7.)

         4.       A number of companies distribute Linux. (Ex. 4 at 5-8, 26.) These distributors offer a variety of commercial Linux products, which typically comprise the Linux kernel, the applications that the kernel runs (which, with the kernel, comprise a complete operating system) and whatever else the distributor chooses to combine into an easily installable product. (See Id. at 5-8.)

         5.       SCO was founded in 1994 under the name Caldera, Inc., as a commercial distributor of Linux products. (Ex. 4 at 29-31.) Over the years, SCO has developed and marketed a number of software products containing Linux code, including Caldera Network Desktop, OpenLinux and SCO Linux. (Ex. 4 at 30-31; Ex. 24 (30(b)(6) Deposition of Erik W. Hughes ("Hughes Dep.") at 13:17-17:18, 34:12-36:17.)

B.       IBM'S Contributions to Linux.

         6.       IBM has made substantial contributions of computer code to Linux, including, in particular, to the Linux kernel. (Bennett Decl. ¶¶ 6-7; Ex. 2 ¶¶ 20, 108.)

         7.       Like other contrlbutors to Linux, IBM holds copyrights, including registered copyrights, on many of its contributions to Linux. (Bennett Decl. ¶ 5.)

         8.       Among IBM's copyrighted contributions to Linux is computer code for which IBM has registered copyrights under the following names and registration numbers on the following dates (collectively, the "IBM Copyrighted Works"):

1. Enterprise Volume Management System TX 5-757-696 August 15, 2003
2. Enterprise Class Event Logging TX 5-757-697 August 15, 2003
3. Dynamic Probes TX 5-757-698 August 15, 2003
4. Linux Support Power PC64 TX 5-757-699 August 15, 2003
5. Omni Print Driver TX 5-757-700 August 15, 2003
6. Journaled File System TX 5-757-701 August 15, 2003
7. Next Generation Posix Threading TX 5-757-702 August 15, 2003
8. Linux Kernel Support for JFS TX 5-856-466 February 2, 2004
9. Linux Kernel S390 Support TX 5-856-467 February 2, 2004
10. Linux Kernel Support for Service Processor TX 5-856-468 February 2, 2004
11. Linux Kernel Support for Memory Expansion Technology TX 5-856-469 February 2, 2004
12. Linux Kernel Support for IBM eServer iSeries Devices TX 5-856-470 February 2, 2004
13. Linux Kernel Support for PCI Hotplug TX 5-856-471 February 2, 2004
14. Linux Kernel Support for pSeries Hypervisor Terminal TX 5-856-472 February 2, 2004
15. Linux Kernel PPC64 Support TX 5-856-473 February 2, 2004
16. Linux Kernel Support for Mwave Modem TX 5-856-474 February 2, 2004
(Exs. 5-20.) The registration of each of these IBM Copyrighted Works was made within five years of the first publication of the relevant work. (Bennett Decl. ¶ 5.)

         9.       IBM's "Enterprise Volume Management System" work (a copy of which is at Exhibit 5.1) is comprised of 328 files, containing 298,943 lines of code.

         10.      IBM's "Enterprise Class Event Logging" work (relevant portions of which are at Exhibit 6.1) includes 7 files, containing 2,048 lines of code.

         11.      IBM's "Dynamic Probes" work (relevant portions of which are at Exhibit 7.1) includes 8 files, containing 2,411 lines of code.

         12.      IBM's "Linux Support Power PC64" work (a copy of which is at Exhibit 8.1) is comprised of 55 files, containing 19,042 lines of code.

         13.      IBM's "Omni Print Driver" work (a copy of which is at Exhibit 9.1) includes 1,202 files, containing 366,407 lines of code.

         14.      IBM's "Journaled File System" work (a copy of which is at Exhibit 10.1) is comprised of 39 files, containing 9,914 lines of code.

         15.      IBM's "Next Generation Posix Threading" work (a copy of which is at Exhibit 11.1) is comprised of 5 files, containing 1,851 lines of code.

         16.      IBM's "Linux Kernel Support for JFS" work (a copy of which is at Exhibit 12.1) is comprised of 2 files, containing 4,302 lines of code.

         17.      IBM's "Linux Kernel S390 Support" work (a copy of which is at Exhibit 13.1) is comprised of 72 files, containing 57,670 lines of code.

         18.      IBM's "Linux Kernel Support for Service Processor" work (a copy of which is at Exhibit 14.1) is comprised of 5 files, containing 2,554 lines of code.

         19.      IBM's "Linux Kernel Support for Memory Expansion Technology" work (a copy of which is at Exhibit 15.1) is comprised of 1 file, containing 2,277 lines of code.

         20.      IBM's "Linux Kernel Support for IBM eServer iSeries Devices" work (a copy of which is at Exhibit 16.1) is comprised of 2 files, containing 7,455 lines of code.

         21.      IBM's "Linux Kernel Support for PCI Hotplug" work (a copy of which is at Exhibit 17.1) is comprised of 1 file, containing 1,122 lines of code.

         22.      IBM's "Linux Kernel Support for pSeries Hypervisor Terminal" work (a copy of which is at Exhibit 18.1) is comprised of 1 file, containing 364 lines of code.

         23.      IBM's "Linux Kernel PPC64 Support" work (a copy of which is at Exhibit 19.1) is comprised of 8 files, containing 4,412 lines of code.

         24.      IBM's "Linux Kernel Support for Mwave Modem" work (a copy of which is at Exhibit 20.1) is comprised of 4 files, containing 2,523 lines of code.

         25.      IBM made the IBM Copyrighted Works publicly available by posting them on the Internet as part of the Linux development process. (Bennett Decl. ¶ 7.) SCO also had access to the IBM Copyrighted Works in its capacity as a partner in UnitedLinux. (Id. ¶ 8.)

C.       SCO's Copying of the IBM Copyrighted Works.

         26.     

REDACTED

         27.      In addition, SCO made available to the public on its Internet website certain Linux code, including the code identified in the following sixteen subsections. (Ex. 23 (30(b)(6) Deposition of Christopher Sontag ("Sontag Dep.")) at 220:20-224:19; Bennett Decl. ¶¶ 10-13.) SCO continue to make that code available for download on its Internet website at least until August 4, 2004. (Bennett Decl. ¶¶ 10-13.)

         28.      As illustrated in detail in the following paragraphs, SCO's Linux products and the Linux code that SCO made available on its Internet website include code identical to code in the IBM Copyrighted Works, including their accompanying IBM copyright notices. (Exs. 5.1-20.3; Bennett Decl. ¶¶ 9-11.) SCO's Linux products and the Linux code it made available on its Internet website include over 783,000 lines of code identical to code in the IBM Copyrighted Works (Id.)

                 1.       Enterprise Volume Management System.

         29.       SCO has literally copied and distributed IBM's copyrighted "Enterprise Volume Management System" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         30.       Specifically, 298,943 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum A. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 5.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 5.3 to the Sorenson Declaration.

                 2.       Enterprise Class Event Logging.

         31.       SCO has literally copied and distributed IBM's copyrighted "Enterprise Class Event Logging" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         32.        Specifically, 2,048 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum B. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 6.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 6.3 to the Sorenson Declaration.

                 3.       Dynamic Probes.

         33.       SCO has literally copied and distributed IBM's copyrighted "Dynamic Probes" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         34.        Specifically, 2,411 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum C. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 7.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 7.3 to the Sorenson Declaration.

                 4.       Linux Support Power PC64.

         35.       SCO has literally copied and distributed IBM's copyrighted "Linux Support Power PC64" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         36.        Specifically, 19,042 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum D. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 8.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 8.3 to the Sorenson Declaration.

                 5.       Omni Print Driver.

         37.       SCO has literally copied and distributed IBM's copyrighted "Omni Print Driver" source code, both in its Open Linux 3.1.1 Asia product and in the Linux files that SCO made available for download on its Internet website.

         38.        Specifically, 366,407 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum E. A copy of the relevant Linux files from Open Linux 3.1.1 Asia is attached as Exhibit 9.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 9.3 to the Sorenson Declaration.

                 6.       Journaled File System.

         39.       SCO has literally copied and distributed IBM's copyrighted "Journaled File System" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         40.        Specifically, 9,914 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum F. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 10.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 10.3 to the Sorenson Declaration.

                 7.       Next Generation Posix Threading.

         41.       SCO has literally copied and distributed IBM's copyrighted "Next Generation Posix Threading" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         42.        Specifically, 1,851 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum G. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 11.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 11.3 to the Sorenson Declaration.

                 8.       Linux Kernel Support for JFS.

         43.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel Support for JFS" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         44.        Specifically, 4,302 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum H. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 12.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 12.3 to the Sorenson Declaration.

                 9.       Linux Kernel S390 Support.

         45.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel S390 Support" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         46.        Specifically, 57,670 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum I. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 13.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 13.3 to the Sorenson Declaration.

                 10.      Linux Kernel Support for Service Processor.

         47.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel Support for Service Processor" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         48.        Specifically, 2,554 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum J. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 14.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 14.3 to the Sorenson Declaration.

                 11.      Linux Kernel Support for Memory Expansion Technology.

         49.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel Support for Memory Expansion Technology" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         50.        Specifically, 2,277 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum K. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 15.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 15.3 to the Sorenson Declaration.

                 12.      Linux Kernel Support for IBM eServer iSeries Devices.

         51.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel Support for IBM eServer iSeries Devices" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         52.        Specifically, 7,455 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum L. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 16.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 16.3 to the Sorenson Declaration.

                 13.      Linux Kernel Support for PCI Hotplug.

         53.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel Support for PCI Hotplug" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         54.        Specifically, 1,122 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum M. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 17.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 17.3 to the Sorenson Declaration.

                 14.      Linux Kernel Support for pSeries Hypervisor Terminal.

         55.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel Support for pSeries Hypervisor Terminal" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         56.        Specifically, 364 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum N. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 18.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 18.3 to the Sorenson Declaration.

                 15.      Linux Kernel PPC64 Support.

         57.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel PPC64 Support" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         58.        Specifically, 4,412 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum O. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 19.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 19.3 to the Sorenson Declaration.

                 16.      Linux Kernel Support for Mwave Modem.

         59.       SCO has literally copied and distributed IBM's copyrighted "Linux Kernel Support for Mwave Modem" source code, both in the SCO Linux Server 4.0 software product that it sold to customers and in the Linux files that SCO made available for download on its Internet website.

         60.        Specifically, 2,523 lines of IBM's source code, including IBM copyright notices, appear verbatim and are identical to code in SCO's products, as indicated in the table attached as Addendum P. A copy of the relevant Linux files from SCO Linux Server 4.0 is attached as Exhibit 20.2 to the Sorenson Declaration. A copy of the relevant Linux files available on SCO's Internet website is attached as Exhibit 20.3 to the Sorenson Declaration.

D.       The GPL.

         61.      Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GPL or LGPL. (Ex. 2 ¶ 26; Ex. 24 at 66:5-13, 66:25-67:5, 75:16-20; Ex. 27 (GNU General Public License); Ex. 26 (GNU Lesser General Public License.) IBM has not authorized the copying, modification or distribution of the IBM Copyrighted Works, except pursuant to the terms of the GPL or LGPL. (Bennett Decl. ¶ 7.)

         62.      According to SCO, the GPL (and thus also the LGPL) "is unenforceable, void and/or voidable" (Ex. 2 at 20 (Sixth Affirmative Defense)); "violates the U.S. Constitution, together with copyright, antitrust and export control laws" (Ex. 25 (Amend. Ans. to Amend. Countercls.) at 16 (Eighth Affirmative Defense); Ex. 23 at 213:15-20); is unenforceable or inapplicable in this litigation (Ex. 2 ¶¶ 24, 28, 155, 157); and is preempted by federal copyright law and unenforceable under state law. (Ex. 22 (SCO's Resp. to IBM's Third Set of Interrogatories) at 38-39.) SCO also claims all rights to enforce the GPL (and thus also the LGPL) are waived and all are estopped from enforcing the GPL. (Ex. 2 at 20 (Seventh Affirmative Defense); Ex. 23 at 213:14-215:7.)

         63.      The GPL and LGPL provide that a person may rely on the GPL or LGPL as a license or grant of permission (to copy, modify or distrlbute code covered by the GPL or LGPL) only if the person abides by the terms of the GPL or LGPL. (Ex. 27 § 5; Ex. 26 § 9) The GPL and LGPL expressly provide that any attempt otherwise to copy, modify, sublicense, or distribute the code licensed under the GPL or LGPL "is void, and will automatically terminate your rights under this License". (Ex. 27 § 4; Ex. 26 § 8.)

         64.      The GPL and LGPL provide, for example, that a person may not copy, modify, sublicense, or distribute code covered by the GPL or LGPL except as expressly provided under the GPL or LGPL (Ex. 27 § 4; Ex. 26 § 8), and may not impose any "further restrictions" on the recipients' exercise of the rlghts granted under the GPL or LGPL. (Ex. 27 § 6; Ex. 26 § 10.)

         65.      Among the "further restrictions" that the GPL and LGPL do not permit are royalties or licensing fees (Ex. 27 §§ 2, 3; Ex. 26 §§ 2, 4) (although fees can be collected for "the physical act of transferring a copy" of the code or for warranty protection). (Ex. 27 § 1; Ex. 26 § 1.) If modified works or machine-readable versions of GPL- or LGPL-licensed software are distributed, they must be licensed "at no charge to all third parties under the terms of this License." (Ex. 27 § 2 (emphasis added); Ex. 26 § 2; see also Ex. 27 § 3; Ex. 26 § 4.)

         66.      SCO has collected, and attempted to collect, royalties and licensing fees from Linux users in excess of the fees permitted by the GPL and LGPL to be collected for the "physical act of transferring a copy" of the code or for warranty protection (Ex. 27 §§ 1,2, and 3; Ex. 26 §§ 1, 2, and 4), and in doing so, has attempted to copy, modify, sublicense, or distribute the code licensed under the GPL or LGPL other than as "expressly provided under [the GPL or LGPL]". (Ex. 27 § 4; Ex. 26 § 8.) SCO has done so in at least the following ways:

a.    In May 2003, SCO sent letters to Fortune 1000 companies (including IBM) claiming that "Linux is, in material part, an unauthorized derivative of UNIX". SCO further stated that "[w]e believe that Linux infringes on our UNIX intellectual property and other rights" and "intend to aggressively protect and enforce these rights". (Ex.28.)

b.    In a May 14, 2003 press release, SCO stated that "Linux is an unauthorized derivative of UNIX and that legal liability for the use of Linux may extend to commercial users". SCO warned that non- SCO Linux customers could face liability for using Linux "software to run their business". (Ex. 29.)

c.    In a July 21, 2003 press release, SCO announced that it would be offering licenses to Linux end users, who could otherwise "face liability for running [Linux] in their organizations". (Ex. 30.)

d.    In an August 5, 2003 press release, SCO announced the availability of a license from SCO that "permits the use of SCO's intellectual property, in binary form only, as contained in Linux distributions". (Ex.31.)

e.    REDACTED

f.    REDACTED

g.    REDACTED
REDACTED

h.    In a December 22, 2003 press release, SCO announced that it had "commenced providing notification to selected Fortune 1000 Linux end users" that their distribution or redistribution of Linux containing code on which SCO purported to hold copyrights would constitute infringement. (Ex. 35.)

i.    In connection with its December 22 press release, SCO released a template of a letter dated December 19, 2003, sent to "Linux User". In that letter, SCO wrote that "the use of the Linux operating system in a commercial setting violates our rights under the United States Copyright Act, including the Digital Millennium Copyright Act" and that "we will take appropriate actions to protect our rights". (Ex. 36.)

j.    REDACTED

k.    REDACTED

l.    On March 3, 2004, SCO sued AutoZone, Inc., in the United States District Court for the District of Nevada, alleging that AutoZone, through its use of Linux, is infringing copyrights SCO purports to hold on UNIX, and sought to collect, as "damages", license fees and royalties in excess of that permitted to be collected by the GPL or LGPL. (Ex.39.)

m.    On August 10, 2004, SCO was reported to be threatening to raise the price of its licenses "which it says companies running Linux need to buy in order to avoid being sued". (Ex. 40.)

n.    SCO's entire SCOSource division is dedicated to selling licenses that "give end users the right to use the SCO intellectual property contained in Linux, in binary format only". (Ex. 41.)

Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); In re Grandote Country Club Co., 252 F.3d 1146, 1149 (lOth Cir. 2001). A party may seek partial summary judgment as to liability, even though there may be a genuine issue as to the amout of damages, and the same standard governs its grant. Fed. R. Civ. P. 56(c).

Argument 2

SCO HAS INFRINGED IBM'S COPYRIGHTS

Under the federal Copyright Act, "copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated, directly or with the aid of a machine or a device". 17 U.S.C. § 102. Such works of authorship include computer programs. See Raymond T. Nimmer, Law of Computer Technology § 1:3 ("it no 1onger can be doubted that copyright law applies to software technology"). A copyright gives the holder certain exclusive rights, which it may license or assign, singly or in combination. 17 U.S.C. § 106. Those rights include the right "to reproduce the copyrighted work", "to prepare derivative works based upon the copyrighted work"3 and "to distribute copies ... of the copyrighted work to the public". Id.

To prevail on a claim of copyrlght infringement, a copyright holder must establish (1) that it owns the copyright to the copyrighted work, and (2) that the alleged infringer violated one or more of the holder's exclusive rights. See Autoskill, Inc. v. Nat'l Educ. Support Sys., Inc., 944 F.2d 1476, 1487 (1Oth Cir. 1993); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc, 75 F. Supp. 2d 1290, 1292 (D. Utah 1999).

In this case, there is no genuine dispute that (1) IBM owns valid copyrights in the IBM Copyrighted Works and (2) SCO has reproduced and distributed the IBM Copyrighted Works as part of its Linux software products and on its Internet website. (¶¶ 7-8, 26-60.) Accordingly, IBM is entitled to summary judgment as to liability and a permanent injunction against future infringement.

A. IBM Owns the Copyrights to the IBM Copyrighted Works.

Under the Copyright Act, a "certificate of registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate". 17 U.S.C. § 41O(c); see Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 831-32 (1Oth Cir. 1993); Autoskill, 944 F.2d at 1487-88.

IBM has submitted the copyright registrations filed with the United States Copyrlght Office for the IBM Copyrighted Works. (¶¶ 8-24.) Each was registered within five years after first publication of the relevant work. (Bennett Decl. ¶ 5.) As a result, IBM is entitled to the presumption that it holds valid copyrights to the IBM Copyrighted Works. See Gates Rubber, 9 F.3d at 831-32; Autoskill, 944 F.2d at 1487-88.

B. SCO Has Copied and Distributed the IBM Copyrighted Works.

Copyright infringement consists of the unauthorized performance of acts the copyright holder has the exclusive right to perform. 17 U.S.C. § 501; See Gates Rubber, 9 F.3d at 831. As a general matter, a plaintiff may prove improper "copying", the shorthand reference for any infringement of the copyright holder's exclusive rights,4 "'by showing that (1) the defendant had access to the plaintiff's copyrighted work, and (2) defendant's work is substantially similar to the plaintiff's copyrightable material. '" Autoskill, 944 F.2d at 1489 (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d Cir. 1992)). When, however, "two works are so strikingly similar as to preclude the possibility of independent creation, 'copying' may be proved without a showing of access". Ferguson v. Nat'l Broad Co., 584 F.2d 111, 113 (5th Cir. 1978); see Gates Rubber, 9 F.3d at 833 n.9 (citing Ferguson).5

In this case, there is no genuine dispute that SCO has copied the IBM Copyrighted Works. First, SCO undeniably had access to the IBM Copyrighted Works. IBM made its code available publicly on the Internet as part of the development process for Linux and the code was incorporated into Linux. (¶ 25.) The IBM Copyrighted Works are available on the Internet for anyone, including in particular commercial distributors of Linux such as SCO, to download and use under the terms of the GPL or LGPL. (Id.) SCO also had access to the IBM Copyrighted Works in its capacity as a partner in UnitedLinux. (Id.) Cf. Eve of Milady v. Impression Bridal, Inc., 957 F. Supp. 484, 489 (S.D.N.Y. 1997) ("This public display of plaintiffs' bridal dresses and copyrighted lace designs in a bridal trade publication amounts to 'access' by defendants to plaintiffs' copyrighted work.").

Second, as described in detail above and demonstrated in the Addenda, more than 783,000 lines of source code from the IBM Copyrighed Works match exactly lines of source code that appear in SCO Linux Server 4.O (or, in the case of Omni Print Driver, in Open Linux 3.1.1 Asia) and in the Linux source code available for download on SCO's Internet website. (¶¶ 29-60; Addenda A-P.)6 Indeed, the code published by SCO bears the very IBM copyright notices that IBM placed on its contributions to Linux. Hence, SCO's works are not merely "substantially similar", Autoskill, 994 F.2d at 1489; they are wholly identical, such that "the possibility of independent creation" is precluded. Ferguson), 584 F.2d at 113; see also Gates Rubber, 9 F.3d at 833 n.9.

To take just one example, IBM's copyrighted source code for the "pSeries Hypervisor Terminal" work appears in its entirety in SCO Linux Server 4.O and in the Linux code that SCO made available on its website. (¶¶ 55-56.) Side-by-side comparisons of the code from one of the files from that work, as it appears in IBM's copyrighted work, and in SCO Linux Server 4.O and on SCO's website are attached as Addenda Q and R, respectively.7 As indicated in Exhibit 25, lines 1 through 364 of the hvc-console.c file in IBM's "pSeries Hypervisor Terminal" work are identical to lines 1 through 364 of the corresponding file in SCO Linux Server 4.O. As indicated in Exhibit 26, lines 1 through 364 of the hvc-console.c file in IBM's "pSeries Hypervisor Terminal" work are identical to lines 1 through 364 ofthe corresponding file downloaded from SCO's website on January 8, 2004. The same pattern of line-for-line, verbatim copying emerges from side-by-side comparison of the other pSeries Hypervisor Terminal files, as they appear in IBM's copyrighted works and in SCO's products.8 Compare Ex. 18.1 with Exs. 18.2 and 18.3.)

Through its distribution of its commercial products, SCO copied and distributed the IBM Copyrighted Works in violation of IBM's exclusive rights to do so (as the copyright holder). 17 U.S.C. § 501; Microsoft Corp. v. Computer Serv. & Repair, Inc., 312 F. Supp. 2d 779, 784 (E.D.N.C. 2004) (holding that having distributed an "unauthorized copy of software in which plaintiff holds a valid copyright, defendant has infringed plaintiff's exclusive rights under the Copyright Act"). SCO also violated IBM's exclusive rights to copy and distribute its copyrighted works by making available for download on SCO's Interet website Linux source code incorporating the IBM Copyrighted Works. See Hotaling, 118 F.3d at 203; Perry, 94 F. Supp. 2d at 619, 621.
* * *
As there can be no dispute as to IBM's ownership of copyrights in the IBM Copyrighted Works and that SCO has copied those works, summary judgment as to liability is appropriate, and SCO should be enjoined from further infringement. See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 517-19 (9th Cir. 1993) (affirming grant of summary judgment for infringement of operating system software copyright); Wilcom, 128 F. Supp. 2d at 1032 (granting summary judgment when the copied computer code "is so similar [to the copyrighted code] that reasonable minds could not differ").

C. SCO Lacks Permission or a License to Copy or Distribute the IBM Copyrighted Works.

As stated, IBM has not authorized the copying, modification or distribution of the IBM Copyrighted Works, except pursuant to the terms of the GPL or LGPL. (¶ 61.) SCO does not have permission or any license to copy, modify, or distribute the IBM Copyrighted Works for at least two independent reasons: (1) SCO has repudiated and disclaimed the GPL (and thus also the LGPL) as a source of legal rights, and (2) SCO has breached the GPL and LGPL and thus lost any rights it might have had under the GPL or LGPL. (¶¶ 61-66.)

First, according to SCO, the GPL "is unenforceable, void and/or voidable"; "violates the U.S. Constitution, together with copyright, antitrust and export control laws"; is unenforceable or inapplicable in this litigation; and is preempted by federal copyright law and unenforceable under state law. SCO also claims all rights to enforce the GPL are waived and all are estopped from enforcing the GPL. (¶ 62.) As a result, SCO cannot here rely on the GPL or the LGPL (which is identical to the GPL insofar as relevant here) as a grant of license or permission to copy and distribute the IBM Copyrighted Works.

Second, SCO breached the GPL and the LGPL at least as early as May 2003 and thus, even if it had not otherwise repudiated and disclaimed the GPL and LGPL, automatically lost any rights it might have had under the GPL and LGPL to copy and distribute the IBM Copyrighted Works. (¶¶ 64-66.)

SCO has violated the GPL and the LGPL in several respects, including by attempting to collect royalties or licensing fees for the use of Linux. (¶¶ 64-66.) The GPL and LGPL provide, for example, that a person may not copy, modify, sublicense, or distribute code covered by the GPL or LGPL except as expressly provided under the GPL or LGPL and may not impose any "further restrictions" on the recipients' exercise of the rights granted under the GPL or LGPL. (¶ 64.) Among the "further restrictions" that the GPL and LGPL do not permit are collecting royalties or licensing fees (although fees can be collected for "the physical act of transferring a copy" of the code or for warranty protection). (¶ 65.) If modified works or machine-readable versions of open-source software are distributed, they must be licensed "at no charge to all third parties under the terms or this License". (Id.)9

As detailed above (¶ 66), 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 othewise 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". (¶ 63.)10 SCO's efforts (under whatever guise) to collect licensing fees for GPL- or LGPL-licensed activities run afoul of the GPL and LGPL.

By its breaches of the GPL and LGPL, SCO has forfeited any protection against claims of copyright infringement that it may have enjoyed by virtue of the GPL or LGPL. SCO cannot violate the covenants that led to and underlie Linux without forfeiting the beneflts those covenants confer. Because SCO has continued to distribute and copy Linux products containing verbatim copies of IBM's Copyrighted Works after it disclaimed, renounced and breached the GPL and LGPL, SCO has infringed IBM's copyrights in those works, 17 U.S.C. § 501(a), and the GPL and LGPL afford SCO no protection against IBM's claim of infringement.

Conclusion

For the foregoing reasons, IBM is entitled to partial summary judgment with respect to liability on its Eighth Counterclaim for copyright infringement and a permanent injunction against further infringement.

         DATED this 16th day of August, 2004.


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

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


Of counsel:

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


1 The undisputed (and indisputable) facts supporting this motion are set out in the accompanying Declaration of Kathleen Bennett ("Bennett Decl."), and the documents appended to and/or authenticated by the Declaration of Amy F. Sorenson. The Exhibits referenced herein are cited as "Ex. __" and submitted with the Sorenson Declaration; the Addenda referenced herein are appended to this memorandum.

2 The undisputed facts are cited herein (in the "Argument" section of this memorandum) as "¶ __", referring to the relevant paragraph number in the foregoing "Statement of Undisputed Facts".

3 A "derivative work" means "a work based upon one or more preexisting works, such as a translation, musical arangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast". 17 U.S.C. § 101.

4 Gates Rubber, 9 F.3d at 832 n.6 (noting that "[c]opying is used herein as a shorthand reference to any infringement of the copyright holder's exclusive rights"); see also Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1370 n.3 (10th Cir. 1997); Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1284 n.2 (10th Cir. 1996).

5 See also Wilcom Pty. Ltd. v. Endless Visions, 128 F. Supp. 2d 1027, 1031-32 (E.D. Mich. 1998) ("The similarity here between the copy and the original is so striking, there is no possibility of independent creation. Therefore, copying can be inferred regardless of proof of access.").

6 See Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) (offering access to materials constitutes distribution); Perry v. Sonic Graphic Systems, Inc., 94 F. Supp. 2d 616, 619, 621 (E.D. Pa. 2000) (holding that posting on website constitutes copying and distribution); Marobie-FL, Inc. v. Nat'l Assoc. of Fire Equip. Distribs., 983 F. Supp. 1167, 1177- 78 (N.D. Ill. 1997) (same); Playboy Enters. v. Webbworld, Inc., 968 F. Supp. 1171, 1174-75 (N.D. Tex. 1997) (same).

7 IBM can provide similar demonstrative exhibits for each of its copyrighted works at the Court's request.

8 The source code for each of IBM's fifteen other copyrighted works similarly matches code in SCO products and the code available on SCO's Internet webpage. (Compare Ex. 5.1 with Exs. 5.2 and 5.3 (Enterprise Volume Management System); Ex. 6.1 with Exs. 6.2 and 6.3 (Enterprise Class Event Logging); Ex. 7.1 with Exs. 7.2 and 7.3 (Dynamic Probes); Ex. 8.1 with Exs. 8.2 and 8.3 (Linux Support Power PC64); Ex. 9.1 with Exs. 9.2 and 9.3 (Omni Print Driver); Ex. 10.1 with Exs. 10.2 and 10.3 (Journaled File System); Ex. 11.1 with Exs. 11.2 and 11.3 (Next Generation Posix Threading); Ex. 12.1 with Exs. 12.2 and 12.3 (Linux Kernel Support for JFS); Ex. 13.1 with Exs. 13.2 and 13.3 (Linux Kernel S390 Support); Ex. 14.1 with Exs. 14.2 and 14.3 (Linux Kernel Support for Service Processor); Ex. 15.1 with Exs. 15.2 and 15.3 (Linux Kernel Support for Memory Expansion Technology); Ex. 16.1 with Exs. 16.2 and 16.3 (Linux Kernel Support for IBM eServer iSeries Devices); Ex. 17.1 with Exs. 17.2 and 17.3 (Linux Kernel Support for PCI Hotplug); Ex. 19.1 with Exs. 19.2 and 19.3 (Linux Kernel PPC64 Support); and Ex. 20.1 with Exs. 20.2 and 20.3 (Linux Kernel Support for Mwave Modem).)

9 See Jason B. Wacha, Open Source, Free Software and the General Public License, 20 No. 3 Computer & Internet Law 20, 22 (2003) (stating that under the GPL, "royalties are not permitted" so a copyright holder who distributes GPLed code cannot charge money for others to use code subject to the GPL).

10 See Dennis M. Kennedy, A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft. and Copyfuture. 20 St. Louis U. Pub. L. Rev. 345, 360 (2001) (noting that a party's rights under the GPL automatically terminate if it attempts to sublicense works subject to the GPL "except as expressly provided under the GPL").


CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of August, 2004, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

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

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

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

_______[signature]_____
Amy F. Sorenson


  


The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text | 936 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here Please
Authored by: Anonymous on Saturday, August 21 2004 @ 11:30 PM EDT
You know what to do...

[ Reply to This | # ]

List of exhibits
Authored by: Anonymous on Saturday, August 21 2004 @ 11:32 PM EDT
This is the list of exhibits as best as I can make out. Any errors are mine, not
IBM's, as this is based on reading the memos. I have posted this previously, but
it got buried in a OT thread in a OT story.

* IBM-232 PSJ on SCO Contract Claims 1-4 *

1. SCO's 2nd Am. Complaint (February 2004)
2. SCO Answer to Second Am Counterclaims
3.
4. SCO's Opposition to IBM's Motion for Summary Judgement on 10th CC
5. Deposition of William M. Broderick
6. 4/19/04 Letter from B. Hatch to T.Shaughnessy with exhibits
7. SCO Linux Introduction 1.2
8. SCO website pages identifying SCO contributions to Linux
9. SCO's FY2000 10-K
10. SOFT-00015 (IBM license)
11. SOFT-000321 (Sequent license)
12. SUB-00015A IBM Sublicense agreement
13. SUB-000321A Sequent Sublicense agreement
14. IBM Side letter
15. Novell-Santa Cruz APA
16. Novell-Santa Cruz-IBM Amendment X
17. SCO press release 8/2/00 purporting to acquire certain Santa Cruz assets
18. SCO's original complaint (March 2003)
19. IBM first set of interrogatories 6/13/2003
20. SCO's amended complaint (July 2003)
21. SCO's initial answer to IBM first set of interrogatories 4/8/2003
22. IBM second set of interrogatories 9/16/2003
23. IBM's 1st motion to compel discovery
24. IBM's 2nd motion to compel discovery
25. Hearing transcript (Judge Wells on discovery) 12/5/2003
26. Wells' 12/12/2003 order granting both IBM discovery motions, etc
27. SCO's revised supplemental response to IBM interrogatories 1/15/2004
28. IBM letter to SCO 1/30/2004 saying SCO has not compiled
29. SCO letter to IBM 2/4/2004
30. Hearing transcript (Judge Wells on discovery) 2/6/2003
31. Wells' 3/5/2004 order regarding discovery
34. Deposition of Otis Wilson (AT&T)
35. Deposition of David Frasure (AT&T)
36. Deposition of David Rodgers (Sequent)
37. $ echo April 1985 clarifying ownership of works
38. $ echo August 1985 clarifying ownership of works
39. SOFT-000302 Santa Cruz license from AT&T
40.
41. Novell letter to SCO - 10/7/2003 - instruction to waiver relating to IBM's
own code and $echo
42. Novell letter to SCO - 10/10/2003 - waiver relating to IBM's own code
43. Novell letter to SCO - 2/6/2004 - instruction to waiver relating to
Sequent's own code
44. Novell letter to SCO - 2/11/2004 - waiver relating to Sequent own code
45. Novell letter to SCO - 6/9/2003 - IBM licenses not terminable, instruction
to waiver
46. Novell letter to SCO - 6/12/2003 - waiver of purported terminations
47. SCO press release 5/30/2002 - announcement of UnitedLinux group
48. United Linux press release 11/19/2002 - release of United Linux 1.0
49. SCO press release - 11/19/2002 - release of SCO Linux Server 4 based on
United Linux 4.0
50. United Linux press release 1/4/2003 - United Linux signs IBM as technology
partner
51. SCO product Announcement for OpenLinux Server 3.1.1 - 1/24/2002
52. SCO product Announcement for OpenLinux Workstation 3.1.1 - 1/24/2002
53. Deposition of Erik W. Hughes (SCO)
54. SCO product Announcement for SCO Linux 4.0
55. SCO technical overview for SCO Linux 4.0
56. SCO product annocunement for SCO Linux 4.0 for Itanium Processor Family
57.
58.
59.
60. Copy of GPL


* IBM-231 PSJ on IBM CC 8 *

1. SCO Linux Introduction 1.2
2. SCO Answer to Second Am Counterclaims
3. SCO website pages identifying SCO contributions to Linux
4. SCO's FY2000 10-K
5.-20. Sixteen IBM copyright registration certificates.
5.1 to 20.1 (for each of 16) - the IBM copyrighted code
5.2 to 20.2 (for each of 16) - the same code from SCO Linux 4
5.3 to 20.3 (for each of 16) - the same code from SCO's web site
[Addendum A,B,C...P - which SCO products each of 5.1 to 20.1 can be found in]
21.
22. SCO response to IBM third set of interrogatories
23. Deposition of Chris Sontag (SCO)
24. Deposition of Erik W. Hughes (SCO)
25. SCO Amended Answer to Am Counterclaims
26. Copy of LGPL
27. Copy of GPL
28. SCO May 2003 letter to fortune 1000 companies (including IBM)
29. SCO press release 5/14/2003 - Linux is unauthorized derivative of Unix
30. SCO press release 7/21/2003 - announcing intention of Linux licensing
31. SCO press release 8/5/2003 - announcing availability of Linux licensing
32.
33.
34.
35. SCO press release 12/22/2003 - announcing SCO's 12/19/2003 letter
36. SCO's 12/19/2003 letter to Linux users
37.
38.
39. SCO's complaint against AutoZone
40. Press Coverage of SCO planning to raise Linux License Price 8/10/2004
41. SCOsource dedicated to binary licenses for Linux (SCO web pages?)

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

How long is *normal* for a judges decision?
Authored by: Anonymous on Saturday, August 21 2004 @ 11:46 PM EDT
Is this the kind of decision that a judge might make over a weekend after
hearing arguments or is it the kind of thing that he/she would want to take more
time with, get more evidence, allow more than one change to argue, etc?

[ Reply to This | # ]

Wheeee!
Authored by: Khym Chanur on Saturday, August 21 2004 @ 11:55 PM EDT
One way or another, the GPL will have been tested in court. There goes that particular piece of FUD.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text
Authored by: sef on Saturday, August 21 2004 @ 11:55 PM EDT

sniff

It's so beautiful.

[ Reply to This | # ]

I think SCO wrongly assumed GPL broken = Public Domain
Authored by: tz on Saturday, August 21 2004 @ 11:56 PM EDT
I have no idea what their lawyers were thinking, but IANAL, and after
watching what they did in the DaimlerChrysler case, they may not have
noticed something which isn't even subtle.

The GPL is a license no different than the EULA that most others use. Even if
the EULAs are in part or in whole invalid, the original and
fundamental copyright to code is still in force. Same with the GPL. Linux is
not public domain (in the legal sense) code, it is copyrighted and has the full

protection from the moment of creation, with additional benefits if the
copyright is registered. The GPL says if you play nice, although everything is

copyrighted, you can add, modify, and redistribute the code without charge.
You have more freedom than the copyright would normally allow, but under
some rules. If the GPL is invalid, the rights to redistribute become far LESS
because it reverts to the original copyright. The copyright does not
disappear.

The copyrights were never given up by the respective authors when the code
was GPLed. The GPL doesn't take public domain code and restrict it, it takes
copyright code and liberates it - copyleft was an earlier term used.

The only question I have is did not anyone at SCO's law firm (which I assume
has an exorbitant billing rate) notice or think through or even read the GPL
and associated cases and settlements, or did SCO convince them otherwise?

The SCOfflaws are probably the biggest software pirates in the USA - When
are the DMCA goon squads going to raid them? All that copyrighted stuff
they have no right to put up on the internet! Get Senator Hatch! The biggest
software pirates are in his state!

[ Reply to This | # ]

GPL scope question
Authored by: gribnick on Sunday, August 22 2004 @ 12:03 AM EDT
I find myself wondering about how license scope gets interpreted. For example,
does SCO use "The GPL" in all of its distribution forms (Linux distro,
Unixware distro, Openserver distro) and the fact that they have violated
"The GPL" mean that all of their uses are now in violation -- Or do
they have "A GPL" for the Linux distro, and "Another GPL"
for the Unixware distro and "Still Another GPL" for the Openserver
disto and they have only violated "A GPL" meaning the Linux distro has
them in hot water but the stuff they are doing with Unixware and Openserver is
still okay? Logically, the first scenario makes sense but legally, I don't know
if the 2nd doesn't perhaps apply instead. Can some lawyer types elaborate on the
differences if any? I am obviously not..

[ Reply to This | # ]

I predict worse FUD
Authored by: tz on Sunday, August 22 2004 @ 12:03 AM EDT
Microsoft, or more likely AdTI or one of their other minions will take out full

page Ads in the Wall Street Journal saying "Look! See! the GPL destroyed
SCO!
It's dangerous, un-American, commie-socialist-pig-dog! SCO was just trying
to protect its product and see what happened! Avoid GPL! You will be
destroyed just like SCO! Go to our site www.msastroturf.fud for more info
and tell us your horror story and read about the pitiable lawyers and SCO
employees that lost their jobs and now are living out of old monitor boxes
beneath underpasses..."

That's right, halloween is coming up - time for another halloween memo.

I wonder if there is any way to see if any GPL code has crept into Microsoft's
offerings.

[ Reply to This | # ]

"Repudiating gpl" equals "losing right to distribute"
Authored by: Khym Chanur on Sunday, August 22 2004 @ 12:10 AM EDT
Anyone have any ideas on how likely a judge would be likely to buy into the theory that, since SCO has repudiated the GPL, that they have lost the right to (re)distribute GPL'd works? IANAL, but it seems to me that this part of the GPL
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.
Means that you can say whatever the heck you feel like about the GPL, inside our outside of court, and it has no effect on you as far as the GPL is concerned.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

Eye in the server
Authored by: cxd on Sunday, August 22 2004 @ 12:13 AM EDT
Two comments.

First I found this part of the motion most interesting.

In addition, SCO made available to the public on its Internet website certain
Linux code, including the code identified in the following sixteen subsections.
(Ex. 23 (30(b)(6) Deposition of Christopher Sontag ("Sontag Dep.")) at
220:20-224:19; Bennett Decl. ¶¶ 10-13.) SCO continue to make that code available
for download on its Internet website at least until August 4, 2004.

So if they remove the offending material from the web are they admitting guilt?
If I remember correctly actions can be used to support a claim in court?

My guess is that we will still see the offending code on the web until the court
rules because removing it would show knowledge of wrong doing. This will be fun
in court. Now your honor if you will pull up http://sco.com ..... you will
see.....even today.... that sco is ....

Next comment.

IBM should make this motion Copyrighted under a license that will allow others
to make a template from it. We should have a IBM "how to" use this
motion as a template for your case against SCO. We even could have a group of
members leave blanks where a copy write holder could fill in data.

So IBM step up to the plate! Let us use your brilliant work as a template. What
better way to show how the Groklaw way of open source law can change the world.

Just an idea if anyone is listening?///

cxd


PS. If anyone is coming up for the big game and needs a little assistance
please contact me. I am serious about this. This is a case you may want to
tell your children about later in life. This is a huge moment for open source
software.

I never did get to Seattle for that last Pink Floyd tour. I will regret that
for the rest of my life.

But to let this moment in time pass without being there..... that would be a
crime.

Have a super day.

cxd

[ Reply to This | # ]

The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
Authored by: jim Reiter on Sunday, August 22 2004 @ 12:30 AM EDT
I have in my library a training manual put out by Caldera (copyright 2000)

The cover says :

Openlearning Courseware – Caldera

Linux Essentials
Jump Start to Openlinux Administration

Openlinux Education

Linux for Business

The first Module has a page and one-half (8 ½ x 11) description of “GNU and Open
Source”, including the GPL. There is no question that Caldera understood the
GPL in 2000, they taught it in their training classes for their customers.

[ Reply to This | # ]

Why is SCO so stupid??? (Despite the title a serious question)
Authored by: Anonymous on Sunday, August 22 2004 @ 12:56 AM EDT
Despite the title, this is a serious question

1. Why did SCO keep on distributing Linux from their web site and elsewhere?

If SCO had really stopped distributing Linux, as they purported to do, then CC-8 would not exist (CC-6 might still).

Remember they could have demanded license fees for Linux, without distributing Linux themselves.

So why? It's almost like they invited a copyright counterclaim?


2. SCO seem to have boxed themselves in with their repudiation nonsense.

Yes, IBM cites SCO's affirmative defenses which might be offered but not applied (you have to list potential affirmative defenses otherwise you may lose the chance of trying them) - but SCO went much further. Look at what else IBM references to demonstrate SCO's repudiation - SCO press releases, SCO interrogatory answers, SCO depositions, etc.

To compound the error in point 1, instead of just (!) breaching the GPL, they repudiated it as well. In other words, by their unequivocal repudiation they seem to have created an additional problem, to their breach.

So now, instead of one ground, for them being in infringement of IBM's copyrights, there are two.

Again, it almost seems that by their own stupidity, they have made their own legal position worse.



So that's the question?

Why are they determined to make their own legal position worse than it might have been, in this case, in two different ways...

Do they care about their legal position at all? Are they on a self-destruct mission? Is it all just a gambit to hype up their stock price in the short-term, even if the actions they commit in the process ensure their own legal destruction?


IANAL, but a groklaw regular

[ Reply to This | # ]

OT - SCOG's probable legal strategy
Authored by: blacklight on Sunday, August 22 2004 @ 01:03 AM EDT
Of all motions for summary judgment that IBM has filed, the one seeking
resolution in the contract dispute is the most lethal. SCOG's only hope is to
file a motion asking the court to stay that motion until the issue of copyrights
violations against SCOG is resolved, and then seek to delay resolution of IBM's
motion asking for summary judgment on the copyrights issue by filing a motion
stating that SCOG is not even close to being finished with the discovery that
IBM has provided. As for the issue of SCOG's violations of IBM's copyrights,
SCOG could be stupid and try to argue that the GPL is unenforceable and that it
needs to do a discovery run on FSF to demonstrate that - and it would be a
stupid argument because the relevant issue of SCOG's violation of IBM's
copyrights and the alleged unenforceability of the GPL is irrelevant. I see SCOG
as filing a motion to stay IBM's motion on SCOG's violation of IBM's copyrights
until after the contracts issue is rewsolved and yes - SCOG needs to do that
discovery run on FSF in the meantime. The judge is no doubt sharp enough to see
SCOG's delaying games for what they are - However, whether the judge will
confront SCOG over its tactics is a definite question mark.

[ Reply to This | # ]

Another possible SCO discovery motion
Authored by: Anonymous on Sunday, August 22 2004 @ 01:12 AM EDT
Note: I do NOT agree with it (it's slightly loopy if you ask me), but here's
another way that I think that SCO might respond:


SCO's Emergency Motion For Sanctions

SCO has long sought the information (since its first set of interrogatories)
listing all IBM's contributions to Linux, the individuals involved, and the
precise contributions of each particular individual.

SCO has filed a motion to compel discovery, a renewed motion to compel discovery
(after IBM's failure to produce this information) and a memorandum with the
court (in accordance with the procedure specified by Magistrate Juge Wells)
regarding IBM's non-production of these materials.

IBM has declined to produce this information, so critical and central to the
case, on the grounds that IBM's Linux contributions are public, and are just as
accessible to SCO as to IBM.

IBM's belated production of 783,000 lines of code that IBM contributed to Linux,
that it has not previously produced, in connection with IBM's summary judgement
motion on its 8th counterclaim, puts paid to this notion.

In the previous absence of this central information SCO has been forced to do
the most time consuming and expensive analysis possible (see Sontag declaration)
of Linux in order to locate IBM contributions. Furthermore, and as a direct
consequence of IBM's discovery misconduct, SCO has labored at a considerable
disadvantage and suffered considerable expense in its analysis of IBM's
contributions to Linux.

IBM should not now be allowed to introduce evidence of its Linux contributions
that it has not previously produced. SCO therefore seeks the following relief
from the court:

1. IBM's 8th counterclaim should be dismissed, or a default judgement should be
entered in favor of SCO, as this claim is entirely dependent on evidence that
IBM has not previously produced to SCO

2. As IBM's discovery misconduct, by previously failing to produce these Linux
materials, has caused prejudice to SCO, the court should enter default judgement
in favor of SCO on contract claims 1-4.

3. IBM should be sanctioned, and discovery expenses awarded to SCO in connection
with the costs of previous investigation of SCO's contract claims, as these
expenses were greatly increased by IBM's previous non production of its Linux
contributions

etc etc


A groklaw regular, IANAL

[ Reply to This | # ]

GPL Inconsistency
Authored by: Anonymous on Sunday, August 22 2004 @ 01:18 AM EDT
Others have pointed out several times that SCO makes GPLed source code available
on their servers, and most seem to think that this is a violation of the GPL
and/or hypocritical on SCO's part.

I haven't looked at the SCO site, and don't know if they are also distributing
object code, but I actually think they have a good case for distributing the
source code -- they may be required to do this under section 3b of the GPL,
which could require them to keep the source available for 3 years from the date
of their last object code distribution (if 3b is the method they originally
chose to be in compliance with the license).

This may be part of the basis of SCO's claim that the GPL is unenforceable. It
seems to simultaneously require distribution and prohibit distribution in SCO's
case. Of course, this is something a good judge can sort out, especially when
it is pointed out that the primary purpose of the GPL is to force the
distributor to share the source code with his customers.

IMHO, SCO should be restrained from distributing any objects or executables
based on GPLed code, restrained from distributing any _newly changed_ GPLed
source modules, and required to keep distributing the source for the objects and
executables they have already distributed.

When SCO ships a shiny box with GPLed software in it, they get paid, but when
someone downloads source, they have to pay for bandwidth and receive nothing in
return. I think both IBM and the judge could probably be convinced to resolve
this issue in a manner which is in the spirit of the GPL, and coincidentally
still quite detrimental to SCO.

[ Reply to This | # ]

Slicing pickles - How can SCO respond?
Authored by: webster on Sunday, August 22 2004 @ 01:26 AM EDT
This Memo seems to be so nice and tidy. The facts do seem to be indisputable.
But let us speculate on what the SCOfolk may come up with:

1. An injunction is not appropriate. IBM has not been harmed by SCO
distribution of Linux. So many other people are distributing it, SCO's impact
is de minimis. Indeed SCO has failed at distributing the Linux with slight or
no damage to IBM from scant few licenses sold. Order us to stop the monitezing
license campaign but not distributing Linux.

2. Some SCO people have families.

3. The motion is speculative since SCO has not had complete discovery and
derivative code may be in the copyrighted code. ERGO deny it. Heard this
before??!

4. GPL is not accommodated by copyright law. It limits one to copy or not, pay
or not, how long how much what media. But to get into future release derivative
and pricing considerations is unenforceable.

5. SCO can not infringe on material that is universally available for free.

6. Some SCO people have families.

7. This is irrelevant. SCO is trying to get compensation from IBM for misuse
of derivative code. We are entitled to a just amount. If IBM won't pay, it is
not infirngement to try and collect it from others who are using it.

8. SCO's permission antedates the IBM application for copyrights. It had
already been released for free. IBM can't pull it back.

9. IBM can not refuse us the means to justify ourselves and then try to enjoin
us bedause we can't justijy ourselves.

IANAT



---
webster

[ Reply to This | # ]

The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text
Authored by: brian on Sunday, August 22 2004 @ 01:36 AM EDT
"Should IBM prevail on this one point, while the ruling
would affect only IBM code directly, I can see every FOSS
developer on earth with a registered copyright immediately
filing suit to block SCO's use of their FOSS works, and
frankly SCO's legal team would likely tell them to pull
all GPL and LGPL code out of everything they offer as soon
as IBM wins this, because there would be no reasonable
likelihood of surviving such challenges. Think of what
that would mean for their business."

Quite frankly I think it affects both their "business
models". That of software vendor and that of litigation
vendor....But a whole lot less for the software side.
Think about it. Most of SCo's current customers are trying
to find a graceful exit without becoming chum in the
waters much like DC and AZ. Future customers (litigation
ones like Baystar and Microsoft excluded) are not going
anywhere near SCO's products for fear of the suits. So it
does little that wasn't already done. Sure, they would
have to pull it from anything else coming out of Utah but
doesn't affect alreay deployed situations. The GPL allows
for the possibility of the customer complying with GPL. So
as I said, the effects are minumal....

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Let's play Global Thermonuclear Lawsuits!
Authored by: Anonymous on Sunday, August 22 2004 @ 02:00 AM EDT
The only way to win is not to Sue.

Never more true than here.

[ Reply to This | # ]

The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
Authored by: jim Reiter on Sunday, August 22 2004 @ 02:46 AM EDT
The GPL is enforcable as is any license.

Think of the GPL as a poison pill for software. No one is forced to use
softwase released under the GPL, but if they choose to use the software they
have to abide by the conditions of the GPL.

Open source is documentation of prior art.

[ Reply to This | # ]

Somewhat related argument
Authored by: Anonymous on Sunday, August 22 2004 @ 03:03 AM EDT

Over on Y we have a little argument going. I'd like input from people who may
have more legal knowledge.

Can a company which has been making GPL contributions lawfully subsequently (say
upon change of management) withdraw GPL permissions to it's previous
contributions?

We're assuming that technical GPL compliance is complete, i. e. they stop
using/distributing/modifying predecessor GPL products to their own
contributions. Can they subsequently say "we withdraw all permissions and
license under GPL to our works" and force distributors to stop shipping
works based upon their contributions, and disallow any future distribution or
modification to works containing those works.

I would presume that end users would be somewhat protected by some variant of
first sale that they could continue to use those previously received works. But
could future development be forcibly abandoned (unless rewrites for all the
withdrawing licensor's code could be accomplished).

The GPL being a license without consideration, I do not see why this could not
happen. Please tell me I'm wrong.

-- TWZ

[ Reply to This | # ]

The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
Authored by: Anonymous on Sunday, August 22 2004 @ 03:19 AM EDT
Why can't SCO rely on their absurd derivitiate theory and ask the judge to rule
on the contract issues before ruling on the copyright infringment issue?

If SCO controls the copyrighted code and did not permit IBM to donate the code,
then the question over who controls the code takes precident. Therefore SCO can
simply ask for a stay of this issue until the trial is over. In the trial it
will be decided if the derivative theory holds water. Unless of course the case
continues to unravel and the judge invalidates the ridiculous derivative theory
which is at issue in another motion.

[ Reply to This | # ]

One part I don't get
Authored by: Night Flyer on Sunday, August 22 2004 @ 03:46 AM EDT
SCO (Darl and lawyers) have been badmouthing the GPL and, at the same time SCO
is distributing programs created under the GPL to run on its operating systems.

My question (somewhat retorical):

Are Darl et al so out of touch with this company and its marketplace, that they
don't know that SCO distributes a version of Linux, and a range of GPL'd
software to run on its 'UNIX' operating systems?

[[ Earth to Darl, Earth to Darl: PHONE HOME! ]]

I would like to be a fly on the wall and hear the words exchanged by Darl and
SCO's lawyers as they read the IBM's Motion for Partial Judgement (expletives
deleted of course).

---------------------------------------------------
Veritas Vincit: Truth Conquers





[ Reply to This | # ]

IBM have shown they understand the issues better then most of us.
Authored by: Franki on Sunday, August 22 2004 @ 04:21 AM EDT
I don't recall anyone here suggesting the course of action that IBM have just
taken, so it shows their lawyers have really spent the time reading the GPL and
working out it's applicability/implications to the SCO->IBM case.

The level of professionalism the IBM lawyers have shown isn't truly appreciated
until compared with the lack thereof that SCO lawyers have shown. But in SCO
lawyers defence, they had much much less to work with in the first place. Only
in SCO press releases and paid shill FUD stories was the SCO case every a
"certainty".

My point is that IBM's lawyers have really put some thought into this request,
and I get the impression that they decided this course of action some time ago,
it doesn't at all rushed, and I suspect this is only phase 1 of the plan.

IBM has lawyers that not only seem to grasp licensing, they understand the
programming and other such issues as well. That's amazing in and of itself.

Regards

Franki


---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

SCO is not charging for IBM's copyright code
Authored by: Anonymous on Sunday, August 22 2004 @ 04:33 AM EDT
I seem to recall SCO's wording for their SCOSource indicated that they were only
charging for whatever IP belonged to them. Not all of Linux but just the code
they claim to have rights over. Doesn't this alter things?

[ Reply to This | # ]

A GPL Stake through the heart
Authored by: SilverWave on Sunday, August 22 2004 @ 04:40 AM EDT

A GPL Stake through the heart!

SCOX trading at $4.00

How long before SOCX share=Toilet Tissue?

Spooky how close this endgame is playing out just as predicted on Groklaw months ago!

Oh and a great Well Done to all at Groklaw and the FOSS community for all the hard work.

Finally to all at SCOX who are reading this….. :-P

Ha Haaaaa!.

---
Linux used ideas from MINIX
MINIX|UNIX
UNIX|MULTICS
MULTICS|CTSS
CTSS|FMS
In science, all work is based on what came before it.
Andy Tanenbaum, 6June04

[ Reply to This | # ]

TSCOG has problems with reading and understanding GPL
Authored by: WojtekPod on Sunday, August 22 2004 @ 05:08 AM EDT
"terminate means terminate"

It's too bad that TSCOG has problems with reading... :) I think everyone here
remembers that TSCOG wants to revoke the irrevocable license of IBM.

But what else should we expect from TSCOG?

Wojciech Podgórni

[ Reply to This | # ]

As in the contract motion.....
Authored by: PeteS on Sunday, August 22 2004 @ 06:10 AM EDT
Here IBM is not 'merely' asking for SCOG to be permanently enjoined from distributing IBM's works, as licensed under the GPL, but this is also a most beautifully poetic motion.

SCOG contends IBM has violated it's copyrights by continuing to distribute AIX (although it has no proof it owns said copyrights) after SCOG terminated IBM's license to do so

Now IBM responds with SCOG is violating our copyrights by continuing to distribute our copyrighted code after it's only license to do so has been automatically terminated and in the process shows what a copyright infringement claim should look like

The Nazgul know well that revenge is a dish best served cold.

I just love it.

PeteS

---
Recursion: (n). See Recursion

[ Reply to This | # ]

  • Not cold! - Authored by: Anonymous on Sunday, August 22 2004 @ 11:08 AM EDT
Did SCO explicitly dismissed the LGPL?
Authored by: Anonymous on Sunday, August 22 2004 @ 06:13 AM EDT
If not then I do not see how IBM can argue that SCO is infringing on LGPL codes.

After all, the GPL and the LGPL are two distinct licences. They are similar but
one does not imply the other.

Of course, I understand that SCO probably means GPL+LGPL but I am not sure that
this argument would stand in court.

[ Reply to This | # ]

If the GPL is voided
Authored by: micheal on Sunday, August 22 2004 @ 06:56 AM EDT
I was reading this article

p2pnet

and noticed this:

If the GPL were voided, an extraordinary and unexpected liability would be visited on most of the developers, distributors and companies that have been involved FOSS. Copyright infringement is a variant of strict liability and neither intent or knowledge of infringement is necessary to establish liability. Put simply, neither ignorance of the law nor that one's action constituted infringement are defenses. Absent the GPL, virtually all distribution and modification that occured within or continued into the statute of limitations (3 years) would be suddenly be actionable as infringement. Statutory damages of "not less than $750 or more than $30,000" are available per infringement.""

That means that if the GPL is found to be void then "any" developer with a contribution to Linux could refuse to relicense his/her code and sue for the $750 to $30,000 per infringement.

Maybe the FSF's policy of having copyrights assigned to the FSF is not such a bad idea.

---
LeRoy -
What a wonderful day.

[ Reply to This | # ]

PJ is misreading the GPL
Authored by: Anonymous on Sunday, August 22 2004 @ 07:55 AM EDT

PJ's - and possibly IBM's - case is by no means as solid here as the article suggests.

The GPL does not preclude charging for GPL products at all. That would be anti-commercial, and would validate many complaints of the GPL's enemies.

The GPL is about source code. It says that if you distribute a GPL product or derivative work, you may charge money for it, but you must make the source code available to purchasers at no additional cost.

It is by no means clear to me that SCOSource as such is incompatible with the GPL. Of course that's by no means IBM's only argument, but I think PJ's focussing on it as an unanswerable argument is mistaken.

[ Reply to This | # ]

Regaining the GPL
Authored by: Dark on Sunday, August 22 2004 @ 08:24 AM EDT
PJ said:
The only way a GPL-violator can get back a GPL license after a termination is by express permission of the copyright holder, in this case, IBM.

I don't think that's the only way. Clause 6 of the GPL offers a much easier way:

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions.

The next time someone distributes a copy of Linux to SCOG (for example, by making such a copy available on a web site), SCOG automatically receives a license from IBM.

[ Reply to This | # ]

Is Microsoft in GPL trouble too?
Authored by: Anonymous on Sunday, August 22 2004 @ 08:42 AM EDT
It occurs to me that an argument can be made that Microsoft, by accepting the validity of the `scosource license' has now got itself offside with the GPL as well. In particular section 7 of the GPL states
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program. [emphasis added]
It seems to me that Microsoft, by accepting a scosource license and thereby agreeing with its validity, has accepted conditions on its use of GPL software which contradict the GPL. Hence Microsoft itself is now most definitely in section 7 trouble. Microsoft can easily resolve this problem by repudiating its scosource license. But unless and until it does so as far as I can see it is explicitly forbidden by the language of section 7 from copying or distributing any software to which the scosource license might apply.

The question is, does Microsoft distribute any GPL software which is derived from linux? If so then it would seem like an entirely reasonable thing for a linux copyright holder to arrange for a lawyer to send them a cease and desist letter.

It would be deliciously ironic if Microsoft found itself in the position of having to repudiate scosource and seek the protection of the GPL in order to avoid disruption to its business and a copyright suit for triple damages.

[ Reply to This | # ]

Report 'em to the BSA
Authored by: jayfar on Sunday, August 22 2004 @ 08:53 AM EDT
The Business Software Alliance welcomes anon tips; here's their report piracy page and online reporting form.

"Concerned about the use of illegal software? If you suspect that a coworker, colleague or even an ex-employer is using or selling unlicensed software — use the hotline number to call the Business Software Alliance in your area or report online. Reporting takes only a moment, and your information will be kept strictly confidential — you can even file a report anonymously."

[ Reply to This | # ]

Some of the problems with that
Authored by: Anonymous on Sunday, August 22 2004 @ 09:14 AM EDT
is that SCO had said they had the evidence already, which is the way it is
suppose to be considering you cannot use discovery as a fishing trip. Discovery
is suppose to used to bolster your case, not create one. SCO doesn't deserve
anything until they lay their already repeatedly claimed 'evidence' on the table
to show everyone they even have a case to justify discovery.

Sorry, the Judge knows this already and SCO is doomed.

SCO's case is like the a cop profiling for crime. He may see a young black man
driving a lexus wearing lots of bling bling and expensive clothes, listening to
rap and hiphop while he's cruising for whores on front ave. He may think that
kid's gotta be a crack dealer, there is no way he could own wheels like that in
this part of town and not be one. He may think that all he needs to do is pull
him over and search him even tho he's done nothing to warrant it other than the
cop's paranoia. He may think it's all justified but what if that young black
man had won a insurance settlement and bought what he had, saving some for
college so he and his kids can excape the ghetto? What if that cop stops him
and demands a search, the kid refuses and the cop hauls the kid into court
claiming, "Judge, this kid is guilty because when I tried to search him, he
said no and that proves he has something to hide."

Was that justice or equity? Would you be afraid to live in a place where
someone could come up to you and claim impropriety and be allowed to rifle thru
your stuff until they found something to use against you even tho you know you
didn't do anything wrong?

More so, it sounds like you are a lawyer or a business person associated with
this. And by all means, most of those types are tax evaders so I would like to
have your name and address so I can review your taxes and expose your theft and
fraudulant tax claims. Your going to jail buddy, right after I go to court and
explain to the judge you are * and by all means guilty and should be raked over
the coals.

Then we will see how your attitude towards unreasonable search and meritless
lawsuits change.

PS: Next time you come to court, bring evidence with you, it really helps your
case.

[ Reply to This | # ]

SCO's Open Letter on Copyrights
Authored by: Anonymous on Sunday, August 22 2004 @ 09:51 AM EDT
In light of the recent filings, it's probably a good idea to take a look at SCO's Open Letter on Copyrights. It shows a bit of their thought process around the GPL. It also shows that their words and actions are inconsistant:

"Based on the views of the U.S. Congress and the U.S. Supreme Court, we believe that adoption and use of the GPL by significant parts of the software industry was a mistake."

[ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text
    Authored by: wharris on Sunday, August 22 2004 @ 09:53 AM EDT

    It took me a day or two (and several hundred Groklaw posts) to realize just how dangerous IBM's motion is. I will consider the motion in isolation first, then briefly consider how it impacts the rest of the case. I am not a lawyer, but I hope you find my discussion interesting.

    The motion is deceptively innocent as it completely omits any question of damages. The Supreme Court has determined that damages must be assessed by a jury if at least one of the parties demands a jury trial. See http:/ /www.law.washington.edu/casrip/newsletter/newsv5i2us2.html.

    Thus, damages can not be decided in a summary judgement, but it is definitely very bad for SCO if the liability question is settled because then the ONLY thing up to the jury is to decide whether or not the infringement was willful. I will bet good money that IBM has a paper trail of cease-and-desist letters along with SCO's advertizements touting the very same IBM code at issue. So damages for willful, commercial distribution could be $100,000 per copy (even more if congress raised this since the last time I checked). Just this one issue may be enough to bankrupt SCO.

    Part of me desperately wants SCO to use its Public Domain defense just so I can read IBM's reply. I paraphrase this argument thusly: "Your honour, I didn't sign a contract when I bought this best-selling novel, so I have the right to post a PDF copy to my web site even after the lawyers repeatedly tell me not to. And I don't understand why everyone is so upset, since the very book is freely available from over 1000 local libraries." A ridiculous, arguably frivolous argument.

    It's been said a million times that the GPL is a license not a contract, but apparently it hasn't sunk in yet, so it's worth saying another million times. So many media people (and apparently more than a few business people) say "The GPL is invalid; therefore I don't have to follow its restrictions". The correct result is "The GPL is invalid; therefore I have no permission to modify or distribute the code." In any event, if SCO's response is full of various reasons why the GPL is invalid, then SCO has just explained why they do not have a valid license to distribute IBM's code (at least some of which is wholly unrelated to the AIX/System V issues). The judge can rule on SCO's copyright infringement without ever deciding on the validity of the GPL. In fact, already the FUDsters are saying that this case "isn't a true test" of the GPL's validity. Really, it's quite simple; repeat over and over "If the GPL is not valid, then I have no license to the code".

    Considered in isolation, there is a strategy for SCO to argue to defeat this motion. SCO would have to claim it is in full compliance with the GPL, meaning that neither their public statements nor their Linux License violates the GPL. The Linux license is extremely vague on what exactly is being purchased; SCO may claim that they are selling indemnification rather than a sublicensee to the kernel. Or, perhaps it is permission to use SCO's System V libraries in a compatibility layer. Or they are trying (perhaps illegally) to dual-license SCO's known contributions to Linux. They may even try to argue that there is no violation because IBM's GPL applies only to source code and the Linux License only to binary code. In any event, SCO might be able to confuse the issue enough to defeat the summary judgement issue BUT ONLY BY CLAIMING TO SCRUPULOUSLY FOLLOW THE GPL.

    Now let's consider what happens to the rest of the case if SCO claims it has followed the GPL. That is, SCO admits it has followed the GPL in its August 2004 distribution of the Linux kernel. As part of this act, SCO has granted any recipient GPL rights to ANY SCO CODE in the kernel, including any imaginary System V code. This effectively decimates the remainder of their case; how can SCO take commercial advantage of IBM's GPL'd contributions while simultaneously suing IBM for giving SCO GPL code to take advantage of? If SCO has granted a GPL license to the imaginary SysV code in Linux (if they haven't they aren't following the only license they have for IBM's code, see above), then why can't IBM use this very license as a defense against SCO's claims? What is the code worth in $$$ if SCO is willing to license it for free under such generous terms (and if they aren't, then they are in violation of the GPL, see above)?

    In short, I now understand the double-horned dillema described on Groklaw; if SCO concedes that the GPL is valid, then virtually their entire case goes out the window; if they claim the GPL is invalid then they are guilty of willful, continued, large-scale, commercial copyright infringement; if they claim the GPL is invalid therefore they can steal IBM's code then they are likely to be sanctioned severely.

    [ Reply to This | # ]

    A class action application?
    Authored by: darkonc on Sunday, August 22 2004 @ 09:55 AM EDT
    would it be possible to certify this one aspect of the IBM/SCO lawsuit as class-action, or would you have to split it off into it's own case?

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

    [ Reply to This | # ]

    Should be free as in speech, too
    Authored by: Anonymous on Sunday, August 22 2004 @ 10:22 AM EDT
    In accusing SCO of violating the GPL, IBM emphasizes the fact that SCO is trying
    to impose a license fee for the use of Linux. Hence, according to SCO, Linux is
    not free as in beer.

    In addition, however, SCO imposes other restrictions that also violate the GPL.
    The SCO IP License denies the user the right to modify the software or even to
    see the source code. Hence, according to SCO, Linux is not free as in speech
    either.

    This aspect of the GPL violation is so blatant that IBM must have some reason
    for not mentioning it in their pleadings. Do they think it has no legal weight?
    Or does IBM have no interest in defending this aspect of freedom?

    To me, free-as-in-speech is more important than free-as-in-beer. When software
    is free-as-in-speech, it will naturally become free-as-in-beer as well (or very
    nearly so), because anyone who has a copy, and is otherwise in compliance with
    the license, can redistribute it.

    [ Reply to This | # ]

    SCO's internal use of Linux
    Authored by: Anonymous on Sunday, August 22 2004 @ 11:32 AM EDT
    Wouldn't SCO have to discontinue internal use of it's own Linux distribution to
    avoid infringing IBM's claimed copyrights? Web servers running Linux?

    [ Reply to This | # ]

    Are SCO lawyers trolling groklaw for ideas?
    Authored by: Anonymous on Sunday, August 22 2004 @ 12:03 PM EDT
    There seem to have been more than a few anonymous postings here throwing up
    suggested ways in which SCO might wriggle off the hook. I wonder if SCOs lawyers
    are using groklaw to test out ideas.

    [ Reply to This | # ]

    Resellers?
    Authored by: Anonymous on Sunday, August 22 2004 @ 12:13 PM EDT
    In reading this article, as I read the part about fiaSCO no longer being able to distribute any GPL'd apps, I started thinking about how much longer the resellers will stay aboard this sinking ship. While the argument can be made (and is being made) that some code (millions of lines?) in Linux belongs to fiaSCO, there is still other code that belongs to IBM that is not in question, and that is also covered by the GPL, and is being distributed by fiaSCO. So even if fiaSCO prevails in their other arguments, they lose on this point, and they lose the right to distribute apps that work with their product, and lose the right to distribute any software that hooks into the kernel.

    What good is any operating system or applications today, if it can't work with GPL'd code? If it can't work with any code that hooks into the Linux kernel? Even fiaSCO were to prevail on their claims of code in the Linux kernel belonging to them (fat chance), the code will be rewritten in lightening speed, and that effort is probably already secretly underway (or already done for what is known) regardless of the outcome, as a backup plan, though I'm sure the judge would give time for the code to be rewritten. And let's not forget one bearded person hacking away in a basement, on an alternative kernel (which may be ready before Longhorn!).

    Forget fiaSCO. They are a litigation company, and no longer an innovative software company. What happens to the developers, the several hundred who showed up to the fiaSCO event recently (as compared to the 10,000+ who showed up to the recent Linux event), and the few thousand (is it still in the thousands) resellers who didn't show up? I keep seeing images of the fists in the air, shouting, "we want money!" from the individuals that fiaSCO likely planted among developers during the last fiaSCO event, that was reported here on Groklaw and on Newsforge. What are they going to do as the last parts of the ship finally are completely covered by water?

    For the fiaSCO resellers reading this (we know you are), even if you are fooled by the fact that fiaSCO is still putting on a charade about continuing the business instead of just dropping everything and just concentrating on the lawsuits, will this finally be enough to convince you that you are aboard a sinking ship? How much more do you need? How high does the water have to get before you admit you are on a sinking ship? Does it have to touch your feet? Reach your ankles? Waist? Does the water level have to be above your head before you allow yourself to see the truth and you decide to swim for the surface?

    If you resellers wait for a court decision, before deciding to abandon a failed company, you will find yourselves at a huge competitive disadvantage when you finally admit the truth. Other proprietary resellers have seen the light, have seen the truth, and are learning GPL'd software and GPL type of coding, and have been establishing and burnishing their credentials in the FOSS space. And the high schoolers and kids in college who are just starting to enter the workforce, and who are pursuing FOSS for their careers, and who have felt the attacks of fiaSCO over the last year, are the decision makers of tomorrow who will be deciding what software to purchase, and from whom. The longer you rely on fiaSCO as a selling point in your portfolios, the harder you will find it in the future to win sales.

    FOSS is exploding in the market place. You don't have to read it here, or on other tech news sites. You see it every day while trying to push your dying software products. Even McDonalds is converting.

    What are you waiting for? Change is often hard. But you will have to make the jump sooner or later. If you wait for later, you will lose your ability to choose when, the choice will be made for you. And you will lose a lot between then and now, and afterward. If you make the jump sooner, you will be in charge of your own destiny, instead of leaving it in the hands of Darl McBride. He already pocketed his millions. What happens to the company, and its customers, later, won't matter much to him. I'm sure he'd like to milk the company for millions more, but his money is already tucked away. If the company folds tomorrow, he still gets to keep his horses, his ranch, his house. If the company stops selling software, stops developing, and just concentrates on the litigation which won't be resolved for another two years, and which is what their financial backers are demanding, if that happens, will you still be able to keep your house? Or still have plans to one day buy one? Will you still be able to maintain your current living conditions if fiaSCO goes poof?

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
    Authored by: m_si_M on Sunday, August 22 2004 @ 12:27 PM EDT

    From TSCOG's IP License FAQ

    7. If SCO currently ships Samba and Apache in its own products, how can it justify this if it believes that the GPL is invalid and unenforceable?

    While SCO believes that the GPL is a poorly written and unenforceable license, SCO is not aware of any intellectual property violations regarding Samba and Apache. However, should any arise, SCO would take all efforts necessary by removing the offending products or obtain the appropriate IP licenses.

    15. Doesn’t the SCO IP License violate the terms of the GPL?

    No. SCO did not contribute its UNIX IP to Linux and it does not acknowledge that this IP is covered by the GPL. The use of this IP can only be licensed by SCO.

    24. Does everyone who uses Linux need a SCO IP License?

    All commercial users of any version of Linux need an SCO IP License.

    25. Do I need a SCO IP license if I am running Linux on non-Intel/Intel compatible hardware? (i.e. RISC)?

    Yes. All commercial uses of Linux need to be properly licensed, regardless of hardware type.

    29. Why doesn’t SCO offer an IP License to the Linux distribution companies so that they can bundle SCO IP with their Linux distribution?

    The SCO IP License program is an end-user program for the right to use SCO IP in binary format. The IP License does not grant distribution rights, nor does it grant any rights associated with source code. SCO doesn’t offer a license to cure the infringement on the part of the Linux distributor because SCO’s source license agreement directly conflicts with the GPL.

    30. I am a member of a corporate IT staff (developer) and I distribute a customized Linux OS to internal data centers. What license do I need to obtain from SCO?

    Each system that runs an operating system that contains SCO IP needs to be licensed. The SCO IP License is the vehicle that SCO is offering to accomplish this. SCO doesn’t offer any license that grants the right to ship SCO IP in source form as a stand alone product, or as part of any other product, either internally or externally. SCO cannot license its source code for use with Linux because SCO’s UNIX source code licenses are incompatible with the terms of the GPL. To protect its rights and the rights of our existing UNIX licensees, suppliers and licensors, SCO cannot condone licensing or distribution of our source code under the GPL.



    I leave it to the lawyers here to decide if these public statements are sufficient to constitute a violation of the GPL

    [ Reply to This | # ]

    Calibrating the yardstick
    Authored by: Anonymous on Sunday, August 22 2004 @ 12:54 PM EDT

    It doesn't help SCO even if it could win on a point or two and be awarded say $1 million if IBM is awarded $6 million in damages in return on its counterclaims

    At this point, SCO seems to have also helped IBM in it's efforts to "calibrate the yard stick" by which damages are to be measured. If IBM is found somewhere to have copied 1 line of Sys V code into Linux (best I can tell, they haven't even gotten there yet) and that is worth the $3 billion (or did they raise it from there? I don't recall) that SCO is asking, what does that imply about the damages for 700,000+ lines of code that SCO has copied? I really like the results of that calculation.

    Wally Bass

    [ Reply to This | # ]

    Couple of interesting points
    Authored by: mossc on Sunday, August 22 2004 @ 01:38 PM EDT
    As I read the article and comments I am trying to clarify things in my mind. A
    couple of random observations:

    1. To the best of my knowledge, at no point in this whole process has TSG
    stopped making the linux kernel available to previous customers (and mostly to
    the rest of the world)

    2. their only right to distribute most of this code was via the GPL

    3. according to the GPL they can't place restriction on the rights of their
    customers to redistribute source

    4. according to the GPL they must provide source upon request to their
    customers.

    5. they have placed restrictions, therefore they do not have the right to
    distribute.

    6. in court documents they acknowledge that IBM owns the copyrights to IBM's
    code.

    7. that makes it willful copyright infringement.

    8. if they argue that they are complying with the GPL then they are KNOWINGLY
    distributing "their" mystery IP under the GPL, one customer who asks
    for source code can redistribute it to the world.

    case closed (minus counter claims)

    Chuck
    p.s. why is it that when people use the term "Intellectual Property"
    they always appear to be purposely vague. If you have specific rights, SPECIFY
    THEM.

    [ Reply to This | # ]

    Possible SCO response
    Authored by: minkwe on Sunday, August 22 2004 @ 02:07 PM EDT
    SCO will say they did not demand royalties for Linux but for SCO IP. They will
    say their license is only for their code which happens to be included in Linux
    (forgetting that IBM has copyrights in alleged SCO IP).

    They will also claim that IBMs registrations are not valid because it was work
    for hire.



    ---
    You don't have a soul. You are a Soul. You have a body.
    -C. S. Lewis

    [ Reply to This | # ]

    On the feasability of a hypothetical
    Authored by: Lord Bitman on Sunday, August 22 2004 @ 02:55 PM EDT
    If the GPL could be revoked from a company which charges licensing fees for code
    it did not itself place under the GPL, can we imagine this hypothetical:

    - Microsoft allows native NFS support in Windows
    - Somebody doesnt like Microsoft
    - Somebody breaks into Microsoft's servers, steals some of its proprietary code,
    and adds that code to the NFS codebase.
    - Microsoft eventually notices, demands licenses be bought (or cease using NFS)
    - Microsoft loses right to distribute NFS???

    Does that make the slightest bit of sense to anybody? Should a company lose its
    right to a GPL'd product because somebody else stole code?

    I'm not saying IBM actually stole any code, but this GPL infringement due to
    licensing fees thing just seems completely absurd! This argument would make
    perfect sense /after/ the rest of the case has been decided, but now? When it
    seems so easy to swat away?

    I'd really like someone to explain to me what IBM is thinking. 'cause, you know,
    they've got lawyers who are paid to be way smarter than me, so I can only assume
    there's some legal reason this isnt entirely premature.

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

    [ Reply to This | # ]

    Automatic termination and the German court order
    Authored by: m_si_M on Sunday, August 22 2004 @ 03:08 PM EDT

    PJ and many others here pointed out that a breach of the GPL automatically terminates the rights of the licensee. To regain the rights granted by the GPL, those who infringed would then have to ask the owner of the copyrights for them.

    If this interpretation is correct (I'm not sure), the German court ruling in favour of the GPL would probably be invalid, because the judges assumed that "the infringer (can) re-acquire the rights by accepting and follwing the conditions any time." (p. 18 of the PDF).

    [ Reply to This | # ]

    Why I think SCO might defeat this motion.
    Authored by: rsteinmetz70112 on Sunday, August 22 2004 @ 03:19 PM EDT
    As well argued as this motion is I think SCOG may be able to defeat it. This is not to say they will win but that the PSJ may be defeated.

    The argument may go something like;
    We acknowledge IBM copyrights in Items X, Y and Z. While we don't believe the GPL is valid or a good idea and have said so, we have complied with its provisions regarding these products. This portion of the motion is therefore moot.

    We also recognize that IBM has valid copyrights on A, B and C but IBM is restricted from releasing these under the Software Agreement which is the basis for our action against IBM. Since IBM's right to distribute these packages is a matter before this court it is inappropriate for summary judgment to be entered in these instances, since there are substantial matters of fact to be resolved by the ongoing discovery.

    Finally IBM mis-characterizes the SCO Linux license program. It is not a license on the whole of Linux but only on SCOG proprietary Intellectual Property which is contained within Linux. It is in no way intended nor does it restrict the distribution of those portions of Linux which do not contain SCOG Intellectual Property.


    Of course if IBM wins its other motion(s) for Partial Summary Judgment then this will be a whole new ball game. Even though I believe that this motion might be defeated, at least in part, it will be greatly clarify the rules under which SCOG might be later defeated.

    If granted, even in part, it might also allow other copyright holders in Linux to move for Declaratory Judgment or otherwise get SCOG to declare that their particular portions of Linux are not covered by Linux. It might also inspire Red Hat and Novell to enter a similar motions in their cases or start new copyright infringement cases against SCOG for their contributions to Linux.

    All in all I think IBM is in for the long haul and is shifting over to the offense and will keep SCOG on the ropes from now on. It would be nice to see others file similar motions (Novell and RedHat come to mind) once SCOG responds to IBM's motion.

    I realize that IBM's other motion on claims 1-4 if granted would resolve many of these issues but if SCOG files an argument along these lines before that motion is ruled on SCOG would certainly ask for a (long) delay to study the ruling and ask leave to represent arguments on this motion.

    ---
    Rsteinmetz

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

    [ Reply to This | # ]

    Hoisted by Darl's own petard!
    Authored by: Anonymous on Sunday, August 22 2004 @ 04:18 PM EDT

    Darl McBride to IBM: You misused code we licensed to you, we demand you stop selling it, and pay us big time!


    IBM lawyers: No, you misused code we licensed to everyone, NOW YOU'RE GOING TO PAY US BIG TIME, AND WE ARE PUTTING THE LAST NAIL IN THE COFFIN, BECAUSE WE, AND ALL THE GPL COPYRIGHT HOLDERS ARE GOING TO STOP YOU FROM INFRINGING OUR COPYRIGHTS! YOU STOP DISTRIBUTING ANY CODE THAT HOOKS INTO GPL'd CODE!

    Hah!, hahhh!, hahhhhhh!, hahhhhhhhh!, hahhhhhhhhhh!, hahhhhhhhhhhhhhhhh!, hahhhhhhhhhhhhhhhhhhhhhhhhhh!, hahhhhhhhhhhhhhhhhhhhhhhhhh!, hahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh!, hahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh!

    Ohhhh, the irony! Darl baby, your charade of a software business just went out the window. Welcome to the jungle!

    Hoisted by your own petard!

    rotfl!!!!!!!!!!!!

    [ Reply to This | # ]

    Son of DCC
    Authored by: tangomike on Sunday, August 22 2004 @ 04:20 PM EDT
    Okay, first the caveats:

    1. Yes, it's a different issue.

    2. Yes, it's a different court, and judges.

    3. Yes, it's a different set of lawyers.

    However:

    1. It'll be a while before this gets to a ruling, say three months.

    2. In the DCC case there was the same thorough Groklaw analysis of every
    conceivable TSCOG rebuttal.

    3. This IBM motion is as straightforward and well supported as the DCC
    argument.

    4. The judge in DCC didn't buy any of TSCOG's flimflam, even though she hadn't
    had any of this court's prior experience with it. Delay for discovery, other
    cases, other issues, and all of TSCOG's usual tricks will not be serious enough
    to change the timetable or outcome, though IBM will probably stipulate one or
    two, out of fairness.

    5. It's clear that TSCOG's omissions and commissions here are at least as
    flagrant as in DCC.

    6. BSF are out of their area of expertise here, even if they had something to
    work with.

    For these reasons I predict this will be decided against TSCOG, much the same as
    DCC was (and Novell for that matter), probably by Christmas. This will
    effectively kill TSCOG's court cases, but not formally. I note that IBM has not
    asked for damages (yet). I take this to mean that they would prefer to leave
    TSCOG alive till they've finished with all the issues, i.e. all TSCOG claims
    dismissed and all IBM counter-claims resolved. Then IBM will cremate TSCOG
    through damages. I doubt this part will require a jury; if I've read Grklaw
    posts correctly, there are statutory damages for copyright infringement which
    should be decided by a judge (matter of law, not fact).


    ---
    The SCO Group - Auto-retro-phrenology in action!

    [ Reply to This | # ]

    A clear violation?
    Authored by: arch_dude on Sunday, August 22 2004 @ 05:36 PM EDT
    For some reason we've been discussing hypothetical cases today. Here is a simple
    case, the one SCOG originally claimed to be pursueing:

    Company A writes copyrighted code and keeps it hidden. Then, B (perhaps a former
    employee of A) makes an illegal copy of part of A called A', and creates a work
    A'B and illegally removes all of A's copyright notices from A'B. B releases A'B
    under the GPL to many other parties (C-Z).

    What is the legal situation in this case? I think that B has clearly infringed
    A's copyright and is liable for damages, but what about C-Z? All of these people
    have been using A'B and perhaps modifying and distributing it under what they
    thought was a legitimate license. If A asks them to stop, must they stop? Can
    they sue B?

    This scenario is probably of more practical importance to users of more obscure
    GPLed software, where A can reasonably assert ignorance of the infringement.

    NOTES:
    1)this is not the SCOG situation as we now know it. SCOG has refused to
    identify any A'.
    2)This could happen under any license, not just the GPL.

    [ Reply to This | # ]

    Impact on other FOSS projects
    Authored by: Anonymous on Sunday, August 22 2004 @ 06:13 PM EDT
    You suggest that if IBM gets away with this, every other
    FOSS developer that SCO relies on may also want to sue. In
    the case of all other Linux developers, I see your point.
    But can other developers of GPLed software use SCO's
    violations of the Linux kernel to get them to pull other
    unrelated things. If they can, this would be very funny
    and will end any arguments about whether SCO has any
    saleable technology; Unixware will look even more useless
    without gcc, bash etc. However I don't follow the legal
    logic; I thought the GPL just described rights and
    restrictions relating to 1 bit of software so a violation
    affecting the Linux kernel won't affect SCOs rights and
    responsibilities wrt other software.

    IANAL etc.

    [ Reply to This | # ]

    Another idea for a SCO defense: IBM has no right to copyright this code
    Authored by: Anonymous on Sunday, August 22 2004 @ 07:08 PM EDT
    Remember this is in SCOworld logic - And I don't agree with it:

    In SCOworld:

    1.Section 2.01, says that whatever code that IBM adds to AIX etc., is part of
    the resulting materials, and must be treated like the Software Product.

    (Remember in SCOworld interpretation this applies even if it's third party code.
    Even if all the System V code is removed from AIX. Etc.)

    2. Some of the IBM contributions to Linux were previously in AIX, and hence
    these fall under 2.01

    3. The rest of the IBM contributions to Linux, even if not previously in AIX,
    were put in Linux with other IBM-code that was previously under AIX, and so
    these also fall under 2.01

    4. Therefore IBM contributions to Linux, are "resulting materials",
    and IBM is obliged to treat them as if part of the software product

    5. Therefore SCO has not infringed IBM's copyrights for two reasons:-

    Reason (i): SCO has a right to distribute the AT&T software product. As
    IBM's resulting materials are to be treated like the software product, IBM has
    given SCO a license to distribute the resulting materials (i.e. all of IBM's
    Linux contributions) - note: this could be in their pleadings, they mentioned
    implied licenses from IBM as a possible affirmative defense.

    Reason (ii): IBM has no right to copyright IBM contributions to Linux (just like
    IBM has no right to copyright the original AT&T software product).
    Therefore IBM's copyright registrations are invalid, and SCO has not infringed.
    Note: This closely matches para 158 of their answer to IBM's 2nd amended
    complaint


    n.b. Once again, I think this is stupid, and I do not agree with it. At all.
    But it _is_ a line of argument that their pleadings indicate that they might try
    to pursue.


    Quatermass
    IANAL IMHO etc

    [ Reply to This | # ]

    TROLL: Licenses, Contracts, and EULAs
    Authored by: Anonymous on Sunday, August 22 2004 @ 07:24 PM EDT
    This isn't really meant as a troll, but some might see it that way, therefore
    the choice of title.

    Can a pure license contain conditionals other than limitations on what rights
    the license is granting? If not, must the license be part of, or be accompanied
    by a contract?

    If the GPL is a license and not a contract or EULA (keyword in the phrase EULA
    being "Agreement") what limits exist for termination of the license?

    Please, no analogies. Try to keep responses limited to copyright and/or
    contract law. We are not talking about houses, cars, etc. here.

    [ Reply to This | # ]

    NOVL v. Canopy
    Authored by: gnuadam on Sunday, August 22 2004 @ 09:33 PM EDT

    Earlier, Novell sued Canopy over money Novell said Canopy owed from the DRDOS suit, described here.

    It seems that Novell has gotten its money (look in the section labeled "Quarterly Results.") That $19 million helped Novell post a tidy profit.

    [ Reply to This | # ]

    Correction: 1.O -> 1.0
    Authored by: Misha_Stepanov on Sunday, August 22 2004 @ 10:22 PM EDT
    Statement Of Undisputed Facts A. Linux. 2.: 1.O -> 1.0

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
    Authored by: jim Reiter on Sunday, August 22 2004 @ 10:50 PM EDT
    If anyone out there is fluent in English they should take note of the following
    from the Santa Cruz Operatiuons, Inc./Novell purchase agreement.

    "4.16 SVRX Licenses.

    (a) Following the Closing, Buyer shall administer the collection of all
    royalties, fees and other amounts due under all SVRX Licenses (as listed in
    detail under item VI of Schedule 1.1(a) hereof and referred to herein as
    "SVRX Royalties"). Within 45 days of the end of each fiscal quarter of
    Buyer, Buyer shall deliver to Seller or Seller's assignee 100% of any SVRX
    Royalties collected in the immediately preceding quarter. Buyer shall diligently
    seek to collect all such royalties, funds and other amounts when due (and shall
    investigate and perform appropriate auditing
    and enforcement under such licenses at Buyer's cost including auditing two (2)
    SVRX licensees identified by Seller during each quarter in which SVRX Royalties
    are collected). In consideration of such activities
    described in the preceding sentence, Seller shall pay to Buyer within 5 days of
    receipt of SVRX Royalties from Buyer as set forth in the preceding sentence, an
    administrative fee equal to 5% of such SVRX Royalties.

    (b) Buyer shall not, and shall not have the authority to, amend, modify or waive
    any right under or assign any SVRX License without the prior written consent of
    Seller. In addition, at Seller's sole discretion and direction, Buyer shall
    amend, supplement, modify or waive any rights
    under, or shall assign any rights to, any SVRX License to the extent so directed
    in any manner or respect by Seller. In the event that Buyer shall fail to take
    any such action concerning the SVRX Licenses as required herein, Seller shall be
    authorized, and hereby is granted, the rights to take any action on Buyer's own
    behalf. Buyer shall not, and
    shall have no right to, enter into future licenses or amendments of the SVRX
    Licenses, except as may be incidentally involved through its rights to sell and
    license the Assets or the Merged Product (as such term is defined in the
    proposed Operating Agreement, attached hereto as Exhibit
    5.1(c)) or future versions thereof of the Merged Product."

    If you take the time to read section (b) you will see that Novell retained
    control over the SVRX licenses. Section (b) Says, "Buyer shall not, and
    shall not have the authority to, amend, modify or waive any right under or
    assign any SVRX License without the prior written consent of Seller. In
    addition, Buyer shall not, and shall not have the authority to, amend, modify or
    waive any right under or assign any SVRX License without the prior written
    consent of Seller. In addition, at Seller's sole discretion and direction, Buyer
    shall amend, supplement, modify or waive any rights
    under, or shall assign any rights to, any SVRX License to the extent so directed
    in any manner or respect by Seller. "

    It does not make one wit of difference what anything else in the contracts say,
    if the "Buyer (Santa Cruz Operations,Inc) shall not, and shall not have the
    authority to, amend, modify or waive any right under or assign any SVRX License
    without the prior written consent of Seller. In addition, at Seller's (Novell)
    sole discretion and direction, Buyer (Santa Cruz operations,Inc.) shall amend,
    supplement, modify or waive any rights under, or shall assign any rights to, any
    SVRX License to the extent so directed in any manner or respect by Seller
    (Novell).

    In contract language words like "amend, supplement, modify or waive any
    rights under, or shall assign any rights" have specific meaning, as do the
    words "SHALL NOT".

    If Santa Cruz Operations, Inc. Buyer (Buyer (Santa Cruz Operations,Inc)
    "shall not, and shall not have the authority to, amend, modify or waive any
    right under or assign any SVRX License without the prior written consent of
    Seller) shall not, and shall not have the authority to, amend, modify or waive
    any right under or assign any SVRX License without the prior written consent of
    Seller (Novell)", then when the Buyer (Santa Cruz Operations,Inc) sold
    whatever they sold to Caldera, they could not have transferred the authority
    to, "amend, modify or waive any right under or assign any SVRX License
    without the prior written consent of Seller (Novell)", since Santa Cruz
    Operations,Inc did have those rights to sell.

    2.01 IS NOT MATERIAL because Novell can, and has I believe directed that TSG
    waive those rights under 4.16 (b). NOVELL CAN DO THAT!

    McBS will not be teaching a course on Contract Law anytime soon.

    [ Reply to This | # ]

    Hoist by their own petard!
    Authored by: iceworm on Monday, August 23 2004 @ 02:19 AM EDT

    Wow! I finally got to be the first one pull out this old chessnut.

    Perhaps the best quote is from the Bible: Matthew 12:37:

    For by thy words thou shalt be justified, and by thy words thou shalt be condemned.

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
    Authored by: Anonymous on Monday, August 23 2004 @ 03:56 AM EDT
    Something just occured to me, is it possible for an author of GPL'd software to
    revoke the rights it grants on their copyrighted software? (for example, could a
    kernel hacker prohibit or revoke the liscense granted to SCO to use the linux
    kernel?).. would this complicate matters for SCO? this might be a dumb
    question, but i only just thought of it :P

    [ Reply to This | # ]

    A question about selective licensing under the GPL
    Authored by: cybervegan on Monday, August 23 2004 @ 06:54 AM EDT
    There are many deep discussions here today about how SCOG could be blocked from
    distributing GPL software because they have allegedly infringed on the Linux GPL
    license.

    A question that springs to my mind is, can a GPL licensor legally exclude SCOG
    their offer of their code under the GPL? Can they say "This software is
    licensed to you under the GPL, unless you are SCOG, in which case you have no
    license." ? If so, would it stand up in court?

    -cybervegan

    ---
    Software source code is a bit like underwear - you only want to show it off in
    public if it's clean and tidy. Refusal could be due to embarrassment or shame...

    [ Reply to This | # ]

    Software Piracy makes me sick!
    Authored by: Anonymous on Monday, August 23 2004 @ 08:49 AM EDT
    Heheh, that feels *good*. No wonder the [MP|RI]AA keep misusing that word.
    It's nice to be able to throw it back in the other direction for a change.

    If this summary judgement passes, I propose that from now on all mention of SCO
    be of "convicted software pirates, SCO".

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text
    Authored by: Anonymous on Monday, August 23 2004 @ 10:08 AM EDT
    Ouch. IBM is out to finish SCO for good. Could not happen to a better company.
    Good riddens SCO!!!

    [ Reply to This | # ]

    TSG Logo....
    Authored by: frk3 on Monday, August 23 2004 @ 10:42 AM EDT

    They really need to change their logo to reflect the company and it's values more closely.

    Like a six year old throwing a tantrum on the the floor, kicking and screaming.

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text
    Authored by: Anonymous on Monday, August 23 2004 @ 11:42 AM EDT
    You Wrote:
    "And terminate means terminate, so SCO can't now hide under the GPL. The
    only way a GPL-violator can get back a GPL license after a termination is by
    express permission of the copyright holder, in this case, IBM. Hmm. Snowballs
    come to mind."

    My questions is: is this legal? If you make a illegal copy of a book, you can't
    read the book anymore? If
    you get a new legal copy of the book you can read it?



    [ Reply to This | # ]

    Covenants and Law
    Authored by: Anonymous on Monday, August 23 2004 @ 01:01 PM EDT
    I'm much more used to seeing the term 'covenant' in a theological sense than a
    legal one, so PJ's and IBM's use of the term faintly confused me. Could someone
    enlighten this legal neophite as to the legal sense of a covenant?

    --Jason

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringement - as text
    Authored by: Anonymous on Monday, August 23 2004 @ 01:27 PM EDT
    I guess we really owe a dept of gratitude to EVA. Their $100000.00 absolutely
    documents SCO's collection of royalties for a Linux license. Perhaps I should
    consider using them for an ISP.

    [ Reply to This | # ]

    Redacted? Why?
    Authored by: Anonymous on Monday, August 23 2004 @ 01:35 PM EDT
    Why would portions be redacted? Presumably because they are secret? What's the
    nature of these secrets? Who is keeping them secret - IBM, SCO, or the judge?

    MSS

    [ Reply to This | # ]

    A point of disagreement
    Authored by: ExcludedMiddle on Monday, August 23 2004 @ 02:37 PM EDT
    As usual, PJ, you performed an excellent analysis. I was wondering when the GPL would come into this case in a more significant fashion. It's really something to see SCO trap themselves.

    Now I have to disagree with you on one point:
    On the other hand, one of my favorite aspects of the GPL is so many business types fail to take it seriously enough to really study it, and they get caught with their pants down every time.
    This is my least favorite aspect of the GPL. I personally want businesses to take the GPL seriously, and to understand what they're getting when they use it. Most companies don't care about these deeper issues at stake when we talk about this topic. They just want to do business. If they're not taking it seriously enough to read it and follow it, part of that is an image issue.

    Reveling in the fact that companies are forced into compliance in embarrassing circumstances does not help the GPL.

    I am of course exempting SCO from this. They intentionally brought this on themselves, and are not as much getting caught with their pants down as much as pulling down their pants intentionally and yelling obscenities at the top of their lungs at a the nice, dignified party that we were having.

    But what we need to remember is that using GPL'd software is different than most purchased software. Except for Linux, which often has distributions, most GPL'd code is obtained in a way that does not deal directly with an organization with the software. Their companies' legal department isn't signing a contract, and getting upper management involved. And so, the most common fallacy with GPL ocurrs: Just because the code is publicly available, they believe that it's public domain.

    But some of the ones in this community, which represents this software, has an almost religious fervor about the GPL and what it represents. There are paries that make it difficult on businesses that are caught. Some companies take advantage of it willfully, it's true, but many misunderstand. Either way, this community has a deserved reputation for being uncivil in matters like this. These behaviors never help achieve the goal of a greater adoption of open source methods, licenses, and software by businesses. I can't think of a single time where being taunted and insulted by people endeared them, or their activities to me.

    So while it's tempting to revel in catching these folks with the hand in the cookie jar, we should instead take it as an opportunity to explain what the license really means, and spread its adoption. Remember, most of them are not egregious offeders such as SCO, but other companies which might help the adoption of these values.

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
    Authored by: jim Reiter on Monday, August 23 2004 @ 05:58 PM EDT
    FYI --- OpenLinux was released by Caldera, not TSG

    [ Reply to This | # ]

    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
    Authored by: gtoomey on Monday, August 23 2004 @ 06:37 PM EDT
    There's a glaring distinction between the IBM and SCO lawyers. Before IBM became involved in the "linux business" it carefully studied the GPL.

    The most experienced lawyer for prosecuting GPL violations is Eben Moglen. It would not surprise me that IBM is paying Eben Moglen (or similar experienced GPL lawyer) a retainer to advise them on this case.

    When SCO's Chief Bozo Darl Mcbride was busily saying the GPL was "unconsitutional" last year, I think just about all groklawyers missed the significance at the time. Because

  • linux is copyrighted
  • SCO was distributing linux
  • SCO claims the GPL is "unconstitutional"
  • hence SCO is distributing copyrighted work without the author's permission
  • So for the past 18 months I think IBM playing their hand, letting SCO and its moron lawyers immerse themselves in the mire, just waiting for the right time to play the trump card - the GPL. So

  • If the GPL is not invalid, then SCO is guilty of massive copyright violation.
  • If the GPL is valid , and up until recently SCO has been distributing linux from the SCO website, it can hardly then go back and sue IBM
  • [ Reply to This | # ]

    • Not so. - Authored by: Anonymous on Monday, August 23 2004 @ 08:24 PM EDT
    The GPL Pickle SCO Is In -- IBM's Memo in Support of PSJ on Counterclaim for Copyright Infringem
    Authored by: Anonymous on Monday, August 23 2004 @ 08:47 PM EDT
    If they win this, someone should contact the Samba folks and have them sue to
    force Samba to be removed from SCO's products. That'd be a nice slap across the
    face, considering they promoted their new Samba-enabled product line recently.

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )