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

Gear

Groklaw Gear

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


You won't find me on Facebook


Donate

Donate Paypal


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
IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Wednesday, August 25 2004 @ 01:52 PM EDT

Here is IBM's Redacted Reply Memorandum In Further Support of its Cross Motion For Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement. I think you will find it the best of the best. Unless you are Sandeep Gupta, of course. IBM cites so many cases and statutes, it isn't until page 11 that the text begins.

"To avoid summary judgment, SCO was required either to adduce evidence demonstrating that a genuine issue of material fact exists as to IBM's alleged infringement of SCO's purported UNIX copyrights or to demonstrate precisely how additional discovery would lead to a genuine issue of material fact. Notwithstanding SCO's opposition papers of more than 200 pages, SCO fails to establish that any material facts are in dispute or to justify SCO's inability to support its allegations on the current record. Partial summary judgment should therefore be entered in favor of IBM and against SCO."

That says it all right there. You said you had mountains of evidence, IBM is saying to SCO. So, where is it? Where's the beef?

On all the cases, there are too many for me to find them all myself. If anyone feels inspired, please can you see how many we can find? There is no way to properly analyze this document and the SCO document it is responding to without finding the cases referred to. If you find them, I'll explain them.


  


IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment | 401 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here please
Authored by: jbeadle on Wednesday, August 25 2004 @ 02:04 PM EDT
Thanks,

-jb

[ Reply to This | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: sef on Wednesday, August 25 2004 @ 02:06 PM EDT

Hm... was there a delay in these becoming available, or did IBM reply to TSG's memo very very very quickly?

[ Reply to This | # ]

URLs/other links here please...
Authored by: jbeadle on Wednesday, August 25 2004 @ 02:08 PM EDT
Thanks,

-jb

[ Reply to This | # ]

Corrections Here.
Authored by: Anonymous on Wednesday, August 25 2004 @ 02:12 PM EDT
Corrections here.

NastyGuns,
Not logged in.

[ Reply to This | # ]

Even if SCO's right about ELF terms - they'd still be wrong
Authored by: Anonymous on Wednesday, August 25 2004 @ 02:31 PM EDT
SCO's argument about ELF relates to on what terms the ELF spec was released on.

Even if assume for a moment (contrary to fact) that ELF spec was not released properly, SCO is STILL wrong.

In fact it wouldn't matter if the ELF spec was never released at all, by anybody. It wouldn't even matter if the ELF spec had been locked in Darl's private vault for the last 20 years.

The point is, that elements of a program that are required for compatibility, are non-protected functional elements. A classic case that illustrates this point is Sega v Accolade (google and you find plenty of stuff about this case). Here Accolade copied 25 bytes of Sega's code -- because it was required to be present in a ROM catridge (video games) -- to make the game run. Because it was required to be present, Sega's design had effectively made into a non-protectable functional element.

(IBM do not cite Sega (perhaps it's not totally on-point). However they make the point in other parts of the memo that refer to ELF, and in the Kernighan affidavit (which we haven't seen). Their supporting cases are Gates Rubber, AutoSkill and others (see footnote 21 pp22/32). The AutoSkill case seems to be remarkably on-point.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

End Game
Authored by: ujay on Wednesday, August 25 2004 @ 02:32 PM EDT
Notice that IBM is pulling in the issue of whether SCO actually holds the
copyrights or not.

C) SCO fails to adduce any competent evidence that SCO is the rightful owner of
valid copyrights in the UNIX software ( pg 33-34 )

The rapid pace of IBM's motions reminds me of a chess master, who's strategy and
tactics are planned several moves ahead, and played out in sequence with an
almost magical quality to the unitiated.

IBM has shown me that there is an art to law that I never saw before.


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

[ Reply to This | # ]

The Gupta report.
Authored by: stef70 on Wednesday, August 25 2004 @ 02:33 PM EDT
Is it available somewhere?

[ Reply to This | # ]

Copyright validity presumption tidbit
Authored by: fjaffe on Wednesday, August 25 2004 @ 02:51 PM EDT
I noticed this gem in the (docket 256) Defendant/Counterclaim-Plaintiff IBM's
Redacted Reply Memorandum in Further Support of Its Cross-Motion for Partial
Summary Judgement on its Claim for Declaratory Judgement of Non-Infringement.

(Page 24 of memo, 34 of PDF)

"Moreover, SCO can not simply seek to to rely on the copyright
registrations it attached to its Second Amended Complaint as proof of ownership.
...when a registration is not timely -- i.e., it is filed more than five years
afte rthe work was created, 17 U.S.C. 410(c) -- the purported copyright holder
is entitled to no presumption and retains the burden of proving ownership of a
valid copyright."

This kills (again) the AZ action two ways; (1) SCOX will have to prove
ownership, which as we know it cannot do until after the Novell dispute is
adjudicated, and (2) SCOX copyright registrations do not, as far as I can tell,
include the shared libraries (which appear to be their latest theory of the
case). Therefore, SCOX can't sue for violation of copyright related to the
shared libraries!!!!!

Further, given what IBM has said in their public briefs, it means that SCOX has
failed to properly demonstrate ownership of any relevant copyrights, since they
have apparently only waived their hands at proof of ownership by pointing to the
registrations.

[ Reply to This | # ]

But Your Honor, we still need Tuesday's code.
Authored by: Anonymous on Wednesday, August 25 2004 @ 02:52 PM EDT
SCO: "We still need all code submitted on Tuesdays to AIX, since Chris
Sontag says that we haven't looked at that angle, that's where all the
infringements are"

[ Reply to This | # ]

"allegedly copyrighted"
Authored by: MplsBrian on Wednesday, August 25 2004 @ 03:16 PM EDT
Is IBM now introducing a new twist to the copyright issue in implying that the
Sys V code may not even be copyrighted? It seems that in the past they've
questioned the validity of SCO holding Sys V copyrights, but the verbiage in
this document seem to imply a lack of copyright on that code.

[ Reply to This | # ]

SCO violated Westlaw's copyrights?
Authored by: rakaz on Wednesday, August 25 2004 @ 03:27 PM EDT
Even as SCO describes the case-by directly quoting (without attribution) a Westlaw headnote-Steiner held only....
One more example of why you don't want to fight IBM in court. Their lawyers really catch everything. They even notice little things like copyright violations in the motions that are filed :)

[ Reply to This | # ]

PJ - Thanks for 'Abstraction, Comparison, and Filtration' lessons
Authored by: seanlynch on Wednesday, August 25 2004 @ 03:44 PM EDT
Thanks PJ for the time you, and other commentors, spent explaining the different
tests used to compare copyrighted works.

For those of you new to Groklaw, in the early days PJ, and some of the more
legal savvy contributors, explained things like the standard tests used to
determine infringement in cases like these.

A great deal of time was spent on how the Tenth Circuit had adopted the
'Abstraction, Comparison, and Filtration' method.

Reading this document I see how Mr. Gupta's testimony refers to evidence that
was not properly filtered for content already within the public domain. This
pretty much makes it no good as evidence in court.

Thanks to Groklaw, I now grok a little bit of law!

[ Reply to This | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: cfitch on Wednesday, August 25 2004 @ 03:56 PM EDT
Page 29 is great:
-- Page 29:
As SCO cannot dispute, however, that is has long been in possession of the
Linux kernel and SCO's own UNIX software, SCO instead attempts to oppose IBM's
motion on the ground that neither SCO nor its experts has had sufficient time to
analyze such code. Indeed, SCO contends that it could need 25,000 additional
man-years to conduct the requisite comparison unless it is afforded extensive
discovery from IBM and third parties. That is, frankly, ludicrous.
As explained in the Declaration of Randall Davis (Proffessor of Computer
Science at the Massachusetts Institute of Technology), submitted herewith,
computer code can be efficiently compared using automated tools in combination
with manual review in a much more reasionable timeframe. According to Dr. Davis,
capable programmers could complete the task in no more than several months.
Indeed, as discussed below, despite its newfound view that it could require an
additional 25,000 man-years to conduct its analysis, SCO has been clamining
publicly for more than a year that is has retained at least three
-- Page 30:
separate teams of outside experts -including from the "MIT math
department"- that have "done a deep dive into Linux",
"compared the source code of Linux with Unix every which way but
Tuesday" and found substantial evidence of copyright infringment (none of
which SCO has shared with IBM, assuming it exists).


Talk about brutal...

[ Reply to This | # ]

Neither the media nor SCO...
Authored by: Anonymous on Wednesday, August 25 2004 @ 03:58 PM EDT

Pages 13 and 14 (23 and 24 of the PDF) do an excellent job of showing just how wrongly TSG's lawyers have it. Even they don't seem to get the difference between a dismissal and a judgement. Fascinating! Little wonder the media keeps getting it wrong -- especiallly if the media is still listening to TSG.

[ Reply to This | # ]

The gloves appear to be well and truly off.
Authored by: jfw25 on Wednesday, August 25 2004 @ 03:59 PM EDT
"That is, frankly, ludricrous."

Pointedly contrasting Professor Randall Davis of MIT with the fictitious
"MIT mathematicians"

"SCO's claim ... is demonstrably false."

"SCO's feigned ignorance... is disingenuous."

I am definitively not a lawyer, and have not read a lot of legal papers, but
something tells me this goes just a bit beyond the normal give and take of
"aggressive lawyers".

[ Reply to This | # ]

Footnote 35
Authored by: kevinsnotalawyer on Wednesday, August 25 2004 @ 04:05 PM EDT

Footnote 35 is the best analogy I've read so far about SCO's attempts to link UNIX, AIX/Dynix, and Linux.

Dr. Davis uses the game of telephone to compare SCO's idea. You know the one--where one person whispers a sentence to someone, then on and on along the circle until the last person says what they heard and everyone giggles because it was so far off the mark. PERFECT!

Plus, it reminds me of that Simpsons episode where the teachers go on strike and Edna Crabapple says, "Well! We'll show him, especially for that 'purple monkey dishwasher' remark."

---
Kevin

"When I say something, I put my name next to it." -- Anonymous

[ Reply to This | # ]

Not only did they make gupta's dec in-admissible.....
Authored by: Franki on Wednesday, August 25 2004 @ 04:07 PM EDT
Not only did they make Gupta's declaration in-admissible, they then pulled it to
bits anyway and showed it for the delay rubbish that it is.

In fact from reading it, it's hard to believe that a professional came up with
it. I rather suspect he was under rather strict instructions from Mcbride and co
to do this.

He should be very annoyed by that because its his creditability on the line, not
Mcbrides. (who has none left in any case.) And it's likely that Mr Gupta will be
looking for another job sometime soon, and he will probably require his
creditability for that. (assuming he has any left now.)
failing that he can always go and work for ADTi.


rgds

Franki

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

[ Reply to This | # ]

End Game - Art of War
Authored by: mwarfield on Wednesday, August 25 2004 @ 04:08 PM EDT
This is not just "an art to law" as another poster pointed out. This is also an application of the Art of War.

2000 years ago in "The Art of War" Sun Tsu spoke of the "9 Grounds"...

Where local interests fight amongst themselves on their own territory, this is called a ground of dissolution

This is what SCO (Caldera) perceived and found in the Linux community and what SCO (Caldera) attacked, thinking it weak and disorganized.

When you enter other's land, but not deeply, this is called light ground

Rough possible analogies, Caldera Linux distribution and distributing OpenSource software on UnixWare and OpenServer. Much of this goes back to the earlier companies, SCO (the original) and Caldera. Easy to get into, easy to get out of. Not particularly evil. But worth noting.

Land that would be advantageous to you if you got it and to the opponents if they got it is called ground of contention

This is what SCO so very much desired. With Linux at it's heart. Microsoft's ambitions also play a pawn here as well.

Land where you and others can come and go is a trafficed ground

The media? The courts? Both? I'm stretching things a bit here, I think. Anywhere you see the contenders on equal (or near equal) footing, I think.

Land that is surrounded on three sides and would give the first to get it access to all the people on the contenent is called intersecting ground

Linux? Where everyone seems to intersect and control of would give access to all corners of the global (physical and virtual)? Another spot for Microsoft's ambitions.

When you enter deeply into other's land, past many cities and towns, this is called heavy ground.

IMHO... This is what we have seen documented here on Groklaw. SCO's travels deep into other's (our) lands past many of our bastions and fortresses and citadels and making mutual competators into friends by providing them with a common enemy and contemporary evil to focus on.

Thomas Cleary (from whose translation is what I'm quoting) comments that "This is ground from which it is hard to return". Amen to to that brother!

When you traverse mountain forests, steep defiles, marshes, or any road difficult to travel, this is call bad ground.

The path they have chosen, so it would seem.

When the way in is narrow and the way out is circuitous, so a small enemy force can strike you, even though your numbers are greater, this is called surrounded ground.

Another stretch but the RedHat court case comes immediately to mind. Or all the court cases. They now find themselves in a spot where they are attacked on many vectors and losing skimishes, whether they were the attacked or the attacker. Maybe this is the courts themselves. Whether the way "in" was narrow or not, they find themselves in a spot where attacking is difficult and being attacked is becoming easier. And getting out intact is getting more and more unlikely.

When you will survive if you fight quickly and perish if you do not, this is called dying ground.

This is where I think SCO finds itself now, although I doubt they recognize it. Deep in enemy territory, supply lines (Bay Star et al and any possible future investors) cut, support vanished, the way out difficult and circuitous and surrounded. Their time is coming neigh.

Sun Tsu also states, in the chapter on "Formation", Invincibility is in oneself, vulnerabilty is in the opponent. What this means that you can only make yourself be invicible and be prepared for when the opponent, through his own failings, is vulnerable. You can not "manufacture" a vulnerability in an opponent, you can only uncover it or discover it. This is what we see now. SCO is coming apart and IBM, being prepared, seems poised to take advantage of all the vulnerabilities SCO now exposes.

End game indeed. I believe we perceive SCO as now vulnerable and coming to the dying ground.

Just my 0.02 Euro.

[ Reply to This | # ]

Utah Docket: 73-1 terminated
Authored by: jog on Wednesday, August 25 2004 @ 04:08 PM EDT
IBM motion to strike SCO affirmative defenses has been
terminated.

[ Reply to This | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: Anonymous on Wednesday, August 25 2004 @ 04:09 PM EDT
[Minsk, not logged in]

Now there is a technique I wish I had known about back in my days of writing
English essays: Save on your page count by putting repeated parts of the
argument in a footnote in a smaller single-spaced font. Page 32 hurts.

(Got some tweaks in GeekLog working: almost have support for auto-creating
OT/Correction/etc posts and moderator flagging interesting comments. If my
garden would stop demanding weeding for a while...)

Chris

[ Reply to This | # ]

Hoist Upon Own Press Releases
Authored by: Anonymous on Wednesday, August 25 2004 @ 04:18 PM EDT
pp. 50-53 (pp. 40-43 on the original printed pages) are sweet justice. Here we see IBM skewering the "But, Your Honor, what is this new CC10 and its talk of 'copyright'?" and "Why... why... that'd take YEARS to analyze" arguments with example after example from the public claims of Darl McBigmouth and cronies.

I am also in admiration of the multi-layered argumentation, e.g.: "Even if the Gupta Declaration was timely disclosed (which it was not) and even if it was competent evidence (which it is not), it remains insufficient as a matter of law..."

This was a wondrous document to behold.

[ Reply to This | # ]

14 million years
Authored by: Anonymous on Wednesday, August 25 2004 @ 04:31 PM EDT
pg. 34

I love this one best of all:

"Under SCO's view of what is required to review source code, it would take
14 million man-years to review this additional code." (AIX-Dynix)

Revenge is a dish best served cold.

Elizabeth Taylor - "The problem with people who have no vices is that
generally you can be pretty sure they're going to have some pretty annoying
virtues."

[ Reply to This | # ]

A new reality TV series might come out of all this... :)
Authored by: John M. Horn on Wednesday, August 25 2004 @ 04:43 PM EDT
From IBM's filing...
"To avoid summary judgment, SCO was required either to adduce evidence
demonstrating that a genuine issue of material fact exists as to IBM's alleged
infringement of SCO's purported UNIX copyrights or to demonstrate precisely how
additional discovery would lead to a genuine issue of material fact."

SCO has only succeeded in demonstrating how focussed it is on the excellent
sport of fishing. SCO's attorneys, though perhaps one of the most dedicated
fishing groups to be found today, are not very accomplished fishermen. The have
repeatedly snagged their belt buckles, their hats, their boots and each other.
In their confusion, they have baited their hooks with everything from cell
phones to christmas tree ornaments, none of which have been appealing to the
wily 'Rainbow Infringing Code'.

Though watching them tends to remind one of the Keystone Cops in a court room,
their hijinks are endlessly amusing and guaranteed to keep us coming back for
more.

Perhaps a new reality TV series could be developed from this...

John Horn

[ Reply to This | # ]

IBM's Reply Memo OCR'd, sent to PJ
Authored by: Thomas Frayne on Wednesday, August 25 2004 @ 04:43 PM EDT
I sent it this morning as an rtf, to be converted to html.

[ Reply to This | # ]

  • Thank you (eom) - Authored by: Anonymous on Wednesday, August 25 2004 @ 05:34 PM EDT
IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: Anonymous on Wednesday, August 25 2004 @ 05:00 PM EDT
Did IBM file a motion for leave to file a Memo with an overlength title?

[ Reply to This | # ]

Footnote 3: Linux.org?
Authored by: Khym Chanur on Wednesday, August 25 2004 @ 05:59 PM EDT
On page six, IBM refers to the kernel being available at Linux.org. Shouldn't that be Kernel.org? This doesn't seem like the kind of mistake the Nazgul would make.

---
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 | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: Anonymous on Wednesday, August 25 2004 @ 06:10 PM EDT
Who cares? I bet only one in ten at best believe this crap. For the other
nine, it just raises Linux's profile... free advertising.

[ Reply to This | # ]

Straight talk
Authored by: mjr on Wednesday, August 25 2004 @ 06:11 PM EDT

Somehow I see the last shreds of excess politeness peeling away here... (Not that they haven't been doing that progressively for a while already.)

"As reviewed here, SCO appears willing to adopt, in court and in the media, whatever position is most expedient under the circumstances, without regard either to consistency or the truth."

I guess IBM thinks the judges have seen enough of SCOundreling to not disapprove of bluntness. I guess they'd be right.

[ Reply to This | # ]

One Big Can of Worms!
Authored by: DoctorW on Wednesday, August 25 2004 @ 06:37 PM EDT
On pg 21 (PDF pg 31) of the redacted reply, we have:
... the IPC code identified by Mr. Gupta was published and distributed prior to 1989 - by AT&T ... without any copyright notices affixed thereto. ... Accordingly, the IPC code was placed in the public domain ...

This, in effect says that System VR2 and System VR3.2 are now in the public domain. Now, can anybody remind me what version of SysV are AIX and Dynix based on :-)

[ Reply to This | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: blacklight on Wednesday, August 25 2004 @ 06:44 PM EDT
"IBM cites so many cases and statutes, it isn't until page 11 that the text
begins." PJ

So, this is a showdown between IBM's mountain of established case law citations
vs. SCOG's phantom mountain of evidence. Something has got to give.

[ Reply to This | # ]

...herein referred to as SCO facts...
Authored by: Latesigner on Wednesday, August 25 2004 @ 06:58 PM EDT
Ouch!
Nazgul humor is so deadpan that I had to read that twice to make sure it was
really there.

[ Reply to This | # ]

  • Nazgul errors - Authored by: Anonymous on Wednesday, August 25 2004 @ 10:43 PM EDT
    • Nazgul errors - Authored by: Anonymous on Wednesday, August 25 2004 @ 11:39 PM EDT
IBM is if British origin
Authored by: DF5JT on Wednesday, August 25 2004 @ 07:22 PM EDT
There is no other explanation for the kind of understatement introduced in this
piece of art.

"Brian W. Kernighan (Professor of Computer Science at Princeton
University)" is the understatement of the century.

Next time we hear from IBM they will probably call Vladimir Horowitz "Piano
Player of Russian origin".

http://www.google.com/search?q=%22brian+kernighan%22&sourceid=firefox&st
art=0&start=0&ie=utf-8&oe=utf-8

[ Reply to This | # ]

SCO has a case:
Authored by: bigbert on Wednesday, August 25 2004 @ 07:40 PM EDT
...if they can prove in court:
1. That there is SysV code in Linux (show the code)
2. That the code was NOT put there by oldSCO
3. That SysV belongs to newSCO (Novell disagrees)
4. That the SysV code in Linux does NOT stem from BSD, prior art or public
domain
5. That the code in question could be written differently, i.e. that is was NOT
to comply with POSIX standards
6. That IBM does NOT have the right to distribute its AIX/Dynix code
7. That newSCO did NOT give permission to copy the code by making it freely
available for download under the GPL, even AFTER they started the court case
(i.e. after they discovered the "massive infringement")

We are talking facts here, not speculation or wishes. I just do not understand
newSCO's attitude -- they MUST know they have no case, and surely they must
realise the judge is going to look at the facts. There whole case is based on a
flimsy theory of "derivitives", while trying to ignore the facts. I
would rate their chances of success less than 1%, but only because I am in a
good mood!

However, what we (the OSS community) want:

1. A squeeky clean Linux code base
2. An unambigious statement on the validity of the GPL
3. A clear message to future litigants: don't even try.


4c 69 6e 75 78 20 52 75 6c 65 73 21


---
4c 69 6e 75 78 20 52 75 6c 65 73 21

[ Reply to This | # ]

Attention PJ - SCO *already* contradicting their most recent bleating regarding CC 10
Authored by: Anonymous on Wednesday, August 25 2004 @ 08:03 PM EDT
Wow, they waited a whole 24 hours after filing their reply bleat (previous Groklaw story), to go back to IBM stole our code

Some highlights (emphasis added) from:

http://www.computerworld.com.au/nindex.php/id;97798672;fp;16;fpid ;0

"It took us 25 years to build our business and it took [IBM] four years simply by stealing code and then giving it away free."

...

SCO, he said, doesn't just expect financial compensation but removal of the stolen code.

"Linux doesn't exist. Everyone knows Linux is an unlicensed version of Unix," he added.



P.S.
What the flip is talking about revenues???? Is he really claiming SCO is doing $290 million per year???

"But there is support from the people who really matter, our customers and partners. Sure, there is concern about sales but if you go back to 1999 our revenues were in excess of $US250 million and today they are up by $40 million," O'Shaughnessy said.

[ Reply to This | # ]

Poetry
Authored by: Anonymous on Wednesday, August 25 2004 @ 09:06 PM EDT
Just reading IBM's paper. So clear, easy to read and full of common sense
arguments. One does not have to be a lawyer to understand this well written
text.

But, for a Linux fan, it's gets better. It is pure poetry, as it serves back the
baseless quotes Darl and cohorts have been spewing out for a long time. It goes
straight into to heart of the matter and it says exactly what any of us here at
Groklaw would say: "Where's the evidence, Darl?"

I have only one message for our friends at IBM. Thank you!

[ Reply to This | # ]

  • Poetry - Authored by: cxd on Wednesday, August 25 2004 @ 09:25 PM EDT
IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: lmbell on Wednesday, August 25 2004 @ 09:32 PM EDT
Pamela and crew:
Have I missed the comment, or has everyone missed who IBM's expert witness is?
Brian W. Kernighan, now a professor of computer science at Princeton University
(http://www.cs.princeton.edu/~bwk/), and apparently still working at Bell Labs
(home page for him is http://www.cs.bell-labs.com/who/bwk/index.html), who was
involved in the development of Unix and most famously the C programming
language.

He is the author, among other things, of The Unix Programming Environment with
Rob Pike and the C programming bible, the C Programming Language with Dennis M.
Ritchie. He has also authored articles and a book or two with P.J. Plauger,
another C guru, who happens to have lived down the dorm hallway from me during
my sophomore year at Princeton.

If this is not quite asking God to review copyright claims on Biblical material,
it's at least using archangel Gabriel.

Talk about going for the jugular: who is Sandeep Gupta? July 26th he became VP
of Engineering for SCO. Looking on the web it's hard to find any bibliography or
biography. He apparently worked at ICL, UK until he joined SCO in 1996, working
on Unix V on the SPARC processor. He apparently is not important enough to be
included in the Exec and Board Biographies at the SCO web-site. As near as I can
tell from a Google search, ICL was a computer manufacturing company that was
absorbed into Fujitsu. Not quite the same as Bell Labs.

One would say SCO was getting desperate, but were they ever not?

LMB

[ Reply to This | # ]

One little thing IBM missed...
Authored by: Anonymous on Wednesday, August 25 2004 @ 09:56 PM EDT

Not a big deal really, because public statements also count, but this page:

http://www.sco.com/scos ource/license_program.html

Clearly spells out that SCO believes that Linux does infringe on SCO's alleged copyrights:

The license gives end users the right to use the SCO intellectual property contained in Linux, in binary format only.

So, SCO cannot claim that IBM's 10th CC has no substance or relevance. It clearly does, on the face of their own web site!

[ Reply to This | # ]

My Favourite Part was...
Authored by: kawabago on Wednesday, August 25 2004 @ 10:00 PM EDT
IBM saying any evidence they bring forward now should be stricken because it
should have been brought forward in discovery. On one hand they demand evidence
and on the other say it can't be entered on the record. Rightly so too. SCO
has so totally screwed itself I don't think Darl will ever be able to get his
personal parts out of his fundamental orifice.

[ Reply to This | # ]

Interesting choice for the judge
Authored by: QTlurker on Wednesday, August 25 2004 @ 10:09 PM EDT
Compare SCO's motion, two articles down (story=20040825011741372) against the
current article.

SCO seems to be giving the judge a choice:
a) Do it SCO's way and make this even uglier, messier, and gnarlier than it is,
or
b) listen to IBM, cut thru the mess, and simplify your case load.

Have they put the judge into a position where it is impossible for him to rule
in their favor. How, can he grant them their discovery wishes when it would
force a long discovery delay (25 people for 1,000 years, or 1,000 people for 25
years, or 25,000 people for ever (overstaffing can lead to productivity loss) ).
It would be cruel for the judge to let them have that much code.

[ Reply to This | # ]

The Hearing On This Might Be As Swift As the Daimler One
Authored by: Anonymous on Wednesday, August 25 2004 @ 11:07 PM EDT
Reading the IBM and SCOG filings provides as stark a contrast as one will
find in a case.

IBM makes one heck of a case for its side.

SCOG goes on and on waving its arms and accusing IBM of everyone that
SCOG has been guilty of doing. So, SCOG adds emphasis to IBM's very
points. The result is that SCOG helps prove IBM's case.

All SCOG had to do is find actual copyright infringement, but then again
Linux is free of copyright infringement.

If the judge makes this partial judgment, then SCOG's contract claims
are irrelevant. How could SCOG claim $5 to $50 billion in damages?

The real story will be SCOG's day of reckoning over counterclaims and the
new cases opened against the SCOundrels.

[ Reply to This | # ]

Sloppiness in SCO's brief
Authored by: marbux on Wednesday, August 25 2004 @ 11:22 PM EDT
Thought I'd hold forth just a bit on how important one page of IBM's brief is: pg. 9 (PDF pg. 19).

On that page, IBM caught SCO's briefwriter in troubling sloppiness, quoting a case headnote without attribution, and missing that a cited case decision had later been withdrawn. Those two points demonstrate depressing sloppiness in legal research, which is itself suggestive of untoward haste.

A "headnote" is a sentence of short paragraph inserted by the publisher to aid researchers in finding relevant holdings by the court. Headnotes are not infrequently inaccurate, are not written by the court rendering the decision, and have no persuasive value. I frankly have never even heard of someone quoting a headnote in a legal brief. It's just not done.

My guess is that SCO's briefwriter inserted the quote of the headnote, intending to go back later and insert the corresponding information from the text of the court's opinion. But if you're going to draft briefs using such methods, you'd better have a fail-safe method to tag the spots that need rewrite before filing the brief.

On the other point, missing that a case holding you're citing had later been withdrawn is just handing the other side ammunition. No careful briefwriter would allow this to happen unless they were way behind on meeting a filing deadline. While I've rarely found myself so hurried, my cure for that kind of situation has been a motion for extension of time, not to let a brief go without knowing that every citation represented a court's final statement on that subject in a given case.

So what's the impact of this on a judge or a judge's clerk? The Nazgul pointing out these failings is a wound to whatever trust the court has with a given party's lawyers. It's also a persuasive warning that SCO's citations and argument are not to be trusted.

It may not matter so much in the court's consideration of the particular briefs, but it's going to introduce a note of judicial distrust into oral argument when anything that wasn't briefed comes up, as it inevitably does. This is a blow to SCO's lawyers' credibility with the court.

Judges and/or their clerks routinely check citations anyway, so these problems would probably have been caught. But catching the other side in such sloppiness is no small thing.

[ Reply to This | # ]

Kernighan and Davis reverse engineered (version 1)
Authored by: Anonymous on Wednesday, August 25 2004 @ 11:50 PM EDT
These are my latest versions of reverse engineered declarations of Kernighan and
Davis based on other public documents.

PLEASE NOTE:

(A) The quoted parts are believed to be accurate (but partial) quotes, from
reading other documents.

(B) In several cases it is NOT clear which paragraph a quote is from (e.g. SCO
or IBM references a quote in connection to more than one paragraph). For these
items I have listed all the paragraphs to which the quote is attached in
argument, so at least some of these quotes may be more like point (C)

(C) The non-quoted parts are NOT be the statements in the affidavit themselves.
Rather. the affidavit supposedly contains a statement which is used (in a public
document) to support a particular contention or line-of-argument. So, in these
cases, I have listed the particular contention or line-of-argument (which we
have access to) that the affidavit's statement supposedly supports.

(D) Errors are of course possible, I've done my best, but I don't purport to be
perfect or anything close.

Quatermass
IANAL IMHO etc


Kernighan
=========
General
- Brian W. Kernighan
- Professor of Computer Science at Princeton University

5.
The code identified by Mr Gupta comprises no more than 300 lines of code, out of
the many millions that exist in the allegedly copyrighted UNIX Software (IBM-256
pp22/32-p23/33)

16.-19.
Mr Gupta [of SCO] failed to appropriately analyze these materials using the
Gates Rubbert methodology in reaching his conclusions (IBM-256 pp19/29)

18.
As the materials identified in Mr Gupta's declaration are all unprotectable,
they do not and cannot support Mr Gupta's opinion of "substantial
similarity". (IBM-247 pp11)

18.
To the extent there are similarities between the routines and groupings in Linux
identified by Mr Gupta and the allegedly copyrighted UNIX code, the similarities
are only with respect to unprotectable elements of such code (IBM-256 pp19/29)

18.
For example, www.linuxhq.com contains every version of the Linux kernel since
the original 1.0.0 and a complete history of every change made to every kernel
file over its entire development history. (IBM-256 pp35/45)

19.
the code that Mr Gupta describes as "substantially similar" or even
"identical" is plainly not -even to a non-technical reviewer (IBM-256
pp19/29)

19.
Mr Gupta also fails to perform any analysis of whether the alleged similarities
he identifies are "substantial" (IBM-247 pp12)

20.-25.
As the materials identified in Mr Gupta's declaration are all unprotectable,
they do not and cannot support Mr Gupta's opinion of "substantial
similarity". (IBM-247 pp11)

20.-21.
RCU + ULS: To the extent that he identifies any similarity at all, Mr Gupta's
analysis is focused almost entirely on unprotectable ideas and concepts.
(IBM-256 pp19/29)

22.
IPC: "Mr Gupta's conclusions of similarity depend on his selecting isolated
lines of code from disparate places and putting them together as if contiguous
blocks of code were involved (which they are not) and important differences did
not exist (which they do)." (IBM-256 pp20/30)

22.
IPC: Moreover even if it were not already in the public domain, the IPC code is
comprised entirely of unprotectable ideas, concepts or principles, merger
material and scenes a faire material. (IBM-256 pp21/31)

22.
IPC: code identified by Mr Gupta was published and distributed prior to 1989-by
AT&T, SCO's alleged predecessor-in-interest -- without copyright notices
affixed thereto (IBM-256 pp21/31 footnote)

23.
ELF: code is determined by software standards, target industry practice and
demands and computer industry programming practives. (IBM-256 pp21/31) "the
substantive content in the ELF header file comes from a published and widely
distributed standard... that explicitly grants permission for use in the
interests of interopability, by an industry consortium that included SCO's
alleged predecessor-in-interest, The Santa Cruz Operation, Inc." (IBM-256
pp21/31)

24.
Neither the certain "header and interfaces" and "System V init
code" identified by Mr Gupta are part of Linux kernel (IBM-256 pp22/32)

26.
The code identified by Mr Gupta comprises no more than 300 lines of code, out of
the many millions that exist in the allegedly copyrighted UNIX Software (IBM-256
pp22/32-p23/33)

26.-27.
Mr Gupta also fails to perform any analysis of whether the alleged similarities
he identifies are "substantial" (IBM-247 pp12)


Davis
=====
- Randall Davis
- Prof. Computer Science at MIT

17.-27.
Computer code can be efficiently compared using automated tools in combination
with manual review in a much more reasonable timeframe than SCO suggests.
(IBM-256 pp29/39) Capable programmers could complete the task in no more than
several months. (IBM-256 pp29/39)

34.
SCO doesn't need AIX or Dynix to determine if Linux infringes UNIX. "To
suggest otherwise leads to the absurd notion that one work can be considered
similar to another even if the two are currently completely different, if only
one can show a (perhaps very long) sequence of small changes that lead from one
to the other. This would be like playing the game of 'telephone', in which a
sentence is successively whispered from oner person to the next in a long line,
and claiming that, even thought the sentence that emerged was totally different
from the one that started the process, there were "substantially
similar" because the last was the result of many small changes to the
first. Similarity means just that - similarity. And that judgement is made on
the code as it is, independent of how it got that way." (IBM-256 footnote
pp34/44)

39.
Under SCO's view of what is required, it would take SCO 14 million years to
review AIX and Dynix (IBM-256 pp44-45)


[ Reply to This | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: belzecue on Thursday, August 26 2004 @ 12:22 AM EDT
This is as close to a smirk as the Nazgul get:

Given that SCO (notwithstanding its public claims) has thus far failed to produce any competent evidence of copyright infringement, SCO’s mere speculation that it will be able to find evidence, given enough time (perhaps 25,000 additional man-years, according to SCO) is not a sufficient basis to grant its Rule 56(0 application.

[ Reply to This | # ]

September : begining of Fall
Authored by: tizan on Thursday, August 26 2004 @ 12:41 AM EDT


It does look like if things does not get delayed ....
a large part of SCO tumble is going to be in September

Isn't this right ?


Ah the beautiful colors of the fall !

---
tizan: What's the point of knowledge if you don't pass it on. Its like storing
all your data on a 1-bit write only memory !

[ Reply to This | # ]

Literally World Class Writing....thank you.
Authored by: tce on Thursday, August 26 2004 @ 12:50 AM EDT
While IANAL (but business architects learn to read everything :-) and so lack
the training to fully appreciate the care that has gone into this (and related)
writing... it occures to me that the fine folks at Snell & Wilmer and
Cravath, Swaine, and Moore realize that they have an interesting audiance for
their work.

First, the case and its likely place in case law - for ever. But also, the 100s
of 1000s not in their profession who will read this work (thanks PJ!!) and learn
from it.

The writings found here at Groklaw may infact already be the most widely read
court documents...ever.

So, thanks again for any extra effort you (Oh, and you to SCOunselors) have put
into this work for the rest of us.


PJ, any chance an estimate could be made of the number of readers?

-- Tom

[ Reply to This | # ]

Apologies to Monty Python
Authored by: Anonymous on Thursday, August 26 2004 @ 02:04 AM EDT
This has gotten so ridiculously one sided that I can't help but be reminded of
the Monty Python Argument sketch. Of course this only makes sense if you've
heard the original. But without further ado here is my version based on this
case.

I hope this gives someone a chuckle.

IBM: We're here for our argument.
SCO: No your not. Your here for an argument.
IBM: But that's what I said.
SCO: No you didn't.
IBM: Um. Yes we did.
SCO: Oh wait,wait. Is this the 6 month argument or shall we make this the full 5
years.
IBM: Well given you've said that you have all the evidence you need, I think we
can keep this down to 6 months.
SCO: Right than.... We need discovery.
IBM: Ok. Here's your discovery.
IBM: Now, we're here for our argument.
SCO: No your not.
IBM: Yes we are.
SCO: No your not.
IBM: Now look. This isn't an argument.
SCO: Yes it is. We need more discovery in order to argue.
IBM: But you have all the discovery you need.
SCO: No we don't.
IBM: O.k. look. An argument is a connected series of statements of fact
presented in order to establish a proposition. It isn't just asking for more
time to discover facts you said you already have.
SCO: It can be. Look when we argue I must have all the facts I say I need.
IBM: Yes but you've claimed you've had all the facts you need. You don't need
more to present an argument.
SCO: We could. Oh wait we need more discovery.
IBM: Ah come on, that was just getting interesting. You almost started argueing
something just than.
SCO: I'm sorry we're not allowed to argue with you any more until you give us
more discovery.
IBM: But you don't need more discovery.
SCO: I'm sorry we're not allowed to argue. Hmm,Hmm,Hmm, da, da, dum.
IBM: Oh all right. Here's your damn discovery, now you have all the facts you
need to argue.
SCO: I'm sorry we're not allowed to argue until you've given us more discovery.
IBM: But we've just given you everything we have to give you.
SCO: No you haven't.
IBM: Yes we have, we just gave it to you.
SCO: No you haven't.
IBM: Well if we haven't why are you arguing? We've got you just there.
SCO: No you haven't. We could be arguing because we have nothing else to say.
IBM: Oh we give up.
SCO: No you don't.
IBM: Oh this is fruitless.
SCO: No it isn't.
<door opens and slams shut>
<IBM Opens door marked Judge(Complaints)>
IBM: We're here to complain.
Judge: You want to complain? What do you have to complain about? I have to sit
here all day reading this pointless drivel from SCO and when I ask for them to
give me something substantive to work with, do they listen? No! You want to
complain? I'll give you a complaint!
IBM: Oh for crying out loud!
<IBM walks out and opens unmarked door>
SCO: "You've stolen our code you thief!"
IBM: Owe! What was that for?
SCO: No not like that. Now try again. "You stole our idea and put it into
Linux!"
IBM: Owe! Stop that!
SCO: That was better but now hold your hand here. "Your just a bunch of
thieves!"
IBM: Stop! Stop! What is this?
SCO: Stop? Oh. This is "Being pummeled over the head with
irrelevant and baseless accusations" Lessons in here.
IBM: What a stupid idea!

Gerry

[ Reply to This | # ]

SCO focusing on Rule 56(f) - positioning for appeal?
Authored by: dwandre on Thursday, August 26 2004 @ 02:44 AM EDT
... though this brief seems to have done a pretty thorough job of obliterating
any ground SCO hope to have. With all those cites Judge Kimball can feel
comfortable that a ruling in IBM's favor won't be reversed. It's pretty amazing
that SCO didn't even list the IBM facts in order to dispute them, just came up
with their own list. Some poor associate at BSF is going to pay for that
blunder. Maybe SCO can sue BSF for malpractice? That would be too delicious
for words.

[ Reply to This | # ]

Advertising in the UK
Authored by: Anonymous on Thursday, August 26 2004 @ 05:49 AM EDT
The UK Advertising Standards Authority have considerable power and sanctions at
their disposal. An advert, once condemmed by the ASA will NOT be carried
unamended by any reputable or mainstream UK print or electronic media. If
Microsoft persist in deceitful and fraudulant claims in their advertising copy,
the ASA can require that some or ALL of their marketing material are pre-vetted.
Ultimately they have the options of banning all advertising for a fixed period,
and/or referal to the UK Office of Fair Trading for action under the Control of
Misleading Advertisment Regulations 1988.

[ Reply to This | # ]

I think SCO should have read...
Authored by: GLJason on Thursday, August 26 2004 @ 06:20 AM EDT
this.

[ Reply to This | # ]

How SCO could win this
Authored by: cricketjeff on Thursday, August 26 2004 @ 06:38 AM EDT
They could ask the Judge for a delay and promise not to mention the case to
anyone until after the hearing.
They would want him to schedule a hearing on 26th August 27004 when they finish
the discovery!

[ Reply to This | # ]

Small error in IBM's Reply in Further Support
Authored by: Anonymous on Thursday, August 26 2004 @ 08:06 AM EDT
I realize that this has no effect on the case, whatsoever, but there is a small
error in IBM's Redacted Reply Memorandum in Further Support of Its Cross-Motion
For Partial Summary Judgment on Its Claim for Declaratory Judgment of
Non-Infringement (phew--what a title!):

In footnote 3, IBM says that the core Linux kernel code is available on
http://www.linux.org. The common repository for Linux code is
http://www.kernel.org. Near as I can tell, there is no kernel source at
linux.org.

[ Reply to This | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: Anonymous on Thursday, August 26 2004 @ 11:06 AM EDT
Did anyone note, in the footnotes of page 13, the fact that IBM sets up
the necessary ground work to file for a full dismissal as soon as this motion
is granted?

The text discusses the failure of SCO to comply with the two discovery
orders of the court, and how such failure justifies a dismissal, if IBM were asking for one!

[ Reply to This | # ]

IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: Anonymous on Thursday, August 26 2004 @ 11:15 AM EDT
This is pretty scathing, SCO looks to be thoroughly screwed, there's only one
thing I have issue with.

IBM is saying that Gupta's testimony is inadmissible because it was not produced
in discovery, but discovery is not over yet.

They requested summary judgement in part to provoke production of materials as
part of discovery, however now they want to exclude that evidence they've
preempted by saying it wasn't produced in discovery. It doesn't hold water
unless there's a time limit that's already passed on specific discovery orders.

That aside, all the other points seem solid to this layman w.r.t. the testimony
being inadmissible for other reasons.

[ Reply to This | # ]

If nothing else, read last 4 pages
Authored by: Anonymous on Thursday, August 26 2004 @ 01:01 PM EDT
Most of the doc was things I (we) have heard everyday. The last few pages in
reference to sco needing 25,000 man years to compare unix to linux was shot down
hard. I would say (besides truth), Redhat litigation is IBM's strongest weapon
in regards to 10CC. IBM must have tried VERY hard to not make a "liar
liar" comment, although they came extremely close a few times.
In a nutshell, "Are you lying in this court or the other?".

[ Reply to This | # ]

Delicious fact:
Authored by: Anonymous on Thursday, August 26 2004 @ 01:37 PM EDT
The average reader here probably doesn't realize this, but the IBM expert
witness Brian Kernigan is one of the principal inventors of the C programming
language (that the Linux kernel is written in) and one of the earliest
developers on/of Unix, infact Kernigan *named* the nascent operating system
Unix. Their expert is effectively *the* undisputed Mr C and Mr Unix, it doesn't
get any better than that. I mean there's maybe 2 other guys in the world who
might be as qualified and for all I know they could be dead :-).

[ Reply to This | # ]

Lawyer's Language / IBM's Reply Memo Supporting Non-Infringement Declaratory Judgment
Authored by: swkl on Thursday, August 26 2004 @ 02:42 PM EDT
So I find IBM's lawyers saying on page 29 of the Reply Memo Supporting Non-Infringement Declaratory Judgment (http://sco.tuxrocks.com/Docs/IBM/IBM-256.pdf)
"Indee d, SCO contents that it could need 25,000 additional man-years to conduct the requisite comparison unless it is afforded extensive discovery from IBM and third parties.(29) That is, frankly, ludicrous."

And on page 41:

"SCO's feigned ignorance, therefore, of its broad public claims that the use of Linux infringes SCO's purported copyrights is disingenious."

The language is very strong - is this normal? Lawyers are usually extremely polite. Are the lawyers for IBM not displaying too much emotion?

Thanks

[ Reply to This | # ]

Maybe it was Sandeep all along...
Authored by: Anonymous on Thursday, August 26 2004 @ 03:44 PM EDT
"Hey Darl, this subroutine looks strikingly familiar to our own code."

[ Reply to This | # ]

Highlights
Authored by: GLJason on Thursday, August 26 2004 @ 07:30 PM EDT
Here are some of my favorite parts :) All pages are as numbered in the memo, not the page in a PDF viewer. All bold type is my emphasis.
  1. Page 9
    Even as SCO describes the case -- by directly quoting (without attribution) a Westlaw headnote
  2. Page 11
    Here, rather than concisely identifying the particular statements of IBM's that it challenges, and the particular portions of the record that support its contention that a genuine issue of material fact exists, SCO instead submits its own counter statement of facts. That is improper under DUCivRr 56-1(c), and IBM's statement of facts should be deemed admitted for this reason alone.
  3. Page 12
    Setting aside SCO's failure properly to contest IBM's statement of facts, the only evidence that SCO has submitted purportedly to suggest that IBM has infringed SCO's alleged UNIX copyrights is the opinion of a SCO employee named Sandeep Gupta, whose credentials (if any) SCO does not disclose.
  4. Page 29 - 25,000 man years? That's every employee of SCO (I think they have about 250) working all on the same thing for 100 years. Also, SCO has publicly claimed to already have hired experts and found evidence. Clearly IBM is getting ready for it's Lanham Act claims. Either SCO has the evidence (which I doubt) and haven't given it to IBM so they should be sanctioned, or they never had the evidence and they were engaged in unfair competition and deceptive trade practices. If they've lied this much to the media, I think the SEC should be looking at them and they could see jail time.
    Indeed, SCO contends that it could need 25,000 additional man-years to conduct the requisite comparison unless it is afforded extensive discovery from IBM and third parties. That is, frankly, ludicrous.
    As explained int he Declaration of Randall Davis (Professor of Computer Science at the Massachusetts Institude of Technology), submitted herewith, computer code can be efficiently compared using automated tools in combination with manual review in a much more reasonable timeframe (See Davis Decl. 17-27.) According to Dr. Daavis, capable programmers could complete the task in no more than several months. Indeed, as discussed below (in Section IV), despite its newfound view that it could require an additional 25,000 man-years to conduct its analysis, SCO has been claiming publicly for more than a year that it has retained at least three separate teams of outside experts--including from the "MIT math department"--that have "done a deep dive into Linux", "compared the source code of Linux with Unix every which way but Tuesday" and found substantial evidence of copyright infringement (none of which SCO has shared with IBM, assuming it exists).
  5. Page 32 (footnote 32) - Showing SCO misusing quotes from case law. Looks like to oppose summary judgment, SCO quoted a case saying "technical computer programs might require a larger aresenal of facts including expert reports." to show that it should be denied because SCO hasn't submitted an expert report. However, the actual case WAS given summary judgement. I think I read in Kimball's bio and his assistants' tips for lawyers that he likes the lawyers to know the cases they cide and be ready to argue them in court. I can't wait for the hearing!
    In Madrid v. Chronicle Books, 209 F. Supp. 2d 1227 (D. Wyo 2002), the court in fact granted summary judgement prior to the submission of expert reports. Although the court in Madrid commented that cases involving "technical computer programs" might require "a larger arsenal of facts", including expert reports, in order to assess substantial similarity, the court did not hold, or even imply, that summary judgement was not appropriate simply because a plantiff had not yet submitted an expert report.
  6. Page 32 (footnote 33) - Talks about how SCO has made many public comments about having hired experts and found code, so the only reason they don't have a "testifying expert" is that they haven't asked any of the many experts they have hired to submit a declaration.
  7. Page 34 - quoting Dr. Randall Davis, professor of Computer Science (not math) at MIT. This is the expert the court relied on in the Altair case. He's the one that came up with the Abstraction-Filtration-Comparison test that the 2nd and 10th circuits use to determine if a work infringes copyrights. This is like getting James Madison to testify for you on whether a law is constitutional.
    SCO's argument, therefore, that it needs billions of additional lines of AIX and Dynix to perform its analyses is untenable. Even if certain code in Linux originated in AIX or Dynix (which SCO has yet to show), it simply does not matter for purposes of determining whether that code in Linux is substantially similar to code in UNIX (35).
    The footnote:
    As Dr. Davis puts it in his declaration: "To suggest otherwise leads to the absurd notion that one work can be considered similar to another even if the two are currently completely different, if only one can show a (perhaps very long) sequence of small changes that lead from one to the other. [...] Similarity means just that--similarity. And that judgment is made on the code as it is, independent of how it got that way."
  8. Page 35 - pointing out that SCO's motion to compel which they rely on in part in trying to avoid summary judgement was filed specifically for that purpose, and putting "renewed" in quotes because it is inappropriate.
    The fact that SCO has filed a "renewed" motion to compel seeking some of this additional discovery (the day before SCO filed its memorandum in opposition to IBM's motion for summary judgement) is also no reason to grant SCO's request for Rule 56(f) relief. The obvious purpose of SC"O's motion to compel--which SCO filed without conferring with IBM as required under DUCivR 37-1(a) and Fed. R. Civ. P. 37(a)(s)(A)--was to allow SCO to argue that IBM's motion for summary judgement should not be granted while a discovery motion is pending.
  9. Page 36 - Finally calling SCO on their weird interpretation of Judge Wells's order in discovery (she tossed a coin to see who should go first, meant for IBM to produce more). In footnote 38 even saying that the judge only ordered IBM to provide what it said it would provide already.
    Upon consideration of SCO's motion, Magistrate Judge Wells denied SCO's request for most of what it sought, and ordered IBM to produce certain additional information, which IBM has provided to SCO. The notion that IBM has engaged in abusive discovery practices is therefore unsupported and unsupportable.
  10. Page 40
    Second, SCO's claim that it in any case did not understand IBM's discovery requests to be seeking SCO's supposed evidence that the use of Linux infringes SCO's alleged copyrights is incredibe.
  11. Page 44
    As reviewed here, SCO appears willing to adopt, in court and in the media, whatever position is mose expedient under the circumstances, without regard either to consistency or the truth. SCO has spun, and continues to spin, a tangled web of inconsistencies to avoid resolution of the claims it has made against IBM's and others' use of the Linux kernel.
I CAN'T WAIT for the oral arguments and decision by Kimball. I'm like a kid a Christmas...

[ 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 )