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Hatch's Letter to Judge Kimball -- Is IBM's 10th CC Permissive or Compulsory?
Wednesday, September 01 2004 @ 01:35 AM EDT

Here is another paper exhibit, thanks to Frank Sorenson, a letter sent on June 10 by Brent Hatch to Judge Kimball, in which he responds to IBM attorney David Marriott's letter to the judge stating that he had mispoken at the June 8 hearing, when he said the 10th counterclaim was not compulsory. You will remember that IBM, in its Supplemental Memorandum in Opposition to SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims, referred to Marriott's letter in footnote 1. And it answered this "letter brief" of Mr. Hatch in detail.

Hatch here argues at length that it shouldn't be compulsory; that it's a permissive counterclaim. SCO very much did not wish to keep the 10th counterclaim in the main case. Remember that this letter was written prior to Autozone being stayed, so they were still trying to tell Judge Kimball that IBM's 10th counterclaim should be stayed (or even better, dismissed) until after the Autozone case could be heard. They lost that battle. So now all they have is a motion to dismiss.

Some of the urgency you perceive in this letter stems from SCO's worry that IBM's asking for partial summary judgment on their 10th counterclaim could impact on all the end user lawsuits SCO dreams about when building their castles in Spain.

Well, maybe not Spain. That is one of the branches they just told us they are having to close.

Hatch tells the judge that IBM is trying to sweep into the case new claims and theories attributed to SCO that do not belong in the case, and he suggests that it would greatly prolong the case if the claims were to be adjudicated as part of the IBM lawsuit. SCO, he asserts, is only bringing contract claims against IBM. How can IBM now try to get a clean bill of health for the contributions of all contributors to Linux?

As if SCO hadn't spent the last year and a half telling the world that IBM's contributions to Linux affected every end user on earth. Now they'd like the mirror image of that claim ruled extraneous to the case.

IBM in its Supplemental Memorandum answered like this, in part:

"In its June 10, 2004 letter brief to the Court, SCO suggests for the first time that IBM's Tenth Counterclaim should be dismissed or stayed because it is a permissive rather than a compulsory counterclaim. SCO is wrong. IBM's Tenth Counterclaim 'arises out of the transaction or occurrence that is the subject' of SCO's claims against IBM and is therefore a compulsory counterclaim. Fed. R. Civ. P. 13(a). Thus, in addition to the reasons set forth in IBM's initial opposition papers, IBM's Tenth Counterclaim should not be dismissed or stayed because it is compulsory.

"The crux of SCO's lawsuit is that 'a significant amount of UNIX protected code and materials are currently found in Linux ... in violation of SCO's contractual rights and copyrights.' (Second Am. Compl. ¶ 79.) SCO has asserted contract claims against IBM, and a claim for copyright infringement alleging that IBM has infringed, and has induced the infringement of, copyrights SCO purports to hold to certain versions of UNIX software. IBM's Tenth Counterclaim seeks a declaration that IBM's Linux activities (including IBM's participation in the development of Linux, IBM's internal copying and use of Linux, and IBM's provision of Linux to customers as part of its hardware and service offerings) do not infringe or induce others to infringe those very copyrights. Thus, IBM's Tenth Counterclaim arises out of SCO's claim that materials in Linux infringe its alleged UNIX copyrights. . . .

"Irrespective of the specific code that SCO presently contends to be at issue in its claims (which SCO has yet even to identify fully for IBM, more than a year after it commenced the case), IBM's Tenth Counterclaim is logically related to and raises the same basic issues of fact and law as SCO's claims: (1) whether SCO owns valid copyrights to certain UNIX software, and (2) whether code in Linux infringes (i.e., is identical or substantially similar to) any protectable expressions in the UNIX code to which SCO claims copyright ownership. If IBM had not asserted its Tenth Counterclaim in this case, it would have been precluded from asserting the claim in a subsequent suit. Accordingly, there can be no doubt that IBM's Tenth Counterclaim is compulsory. . . .

"SCO argues that IBM's Tenth Counterclaim is not compulsory because it involves 'wholly separate and new issues' related to 'the conduct of third parties' and not to 'conduct unique to IBM'. The argument has no merit. IBM's Tenth Counterclaim seeks a declaration of non-infringement only with respect to IBM's own conduct relating to Linux. As stated in IBM's counterclaims, IBM (like many others), has contributed to the development of Linux and regularly (as part of its business) makes copies of Linux. IBM simply seeks a declaration that IBM's contribution to, and copying of, Linux does not infringe the UNIX copyrights SCO claims to own.

"Either there is code in Linux that infringes SCO's purported UNIX copyrights (because it is identical or substantially similar to protected UNIX code) as SCO contends, or, as IBM believes, there is not. Whether any allegedly infringing code in Linux was contributed by parties other than IBM, and whether those parties might as a result also be liable to SCO for copyright infringement, breach of contract or some other claim, is of little moment to IBM's Tenth Counterclaim. SCO's lamentations about the 'sweeping breadth' of IBM's counterclaim are therefore unfounded.

"Contrary to SCO's suggestion, IBM's Tenth Counterclaim does not require adjudication of the conduct of countless third parties or contemplate extensive additional litigation. Whether IBM's Linux activities infringe SCO's purported UNIX copyrights involves an assessment of IBM's conduct and can — indeed must — be resolved in a single litigation. Under SCO's theory, by contrast, each segment of infringing code in Linux would be addressed in a series of 'mini-litigations' against each individual contributor of code to Linux, such that no single alleged infringer would ever be entitled to a declaration of non-infringement as to all the code in Linux. That makes no sense. As SCO would have it, IBM (and many others throughout the world) could be subjected to a virtually endless torrent of litigation brought by SCO, because SCO could file new claims each time SCO purports to find additional infringing code that has been present in Linux all along. The efficiencies associated with addressing IBM's Tenth Counterclaim in this lawsuit, and resolving once and for all whether IBM's Linux activities infringe SCO's alleged copyrights — in contrast to the inefficiency of SCO's proposed course of action — supports the conclusion that IBM's Tenth Counterclaim is compulsory."

Of course, an endless torrent of litigation brought by SCO is exactly what SCO has been dreaming about; hence their distress in this letter. The case they cite, Driver Music Co. v. Commercial Union Ins. Cos, can be found here. IBM answered with so many cases, I haven't finished reading them all yet, but their position is simply worded: "It is axiomatic that counterclaims relating to the same copyrights that are the subject of a plaintiff's claims are logically related to the plaintiff's claims and are therefore compulsory."

It needs to be pointed out that IBM probably doesn't care much who owns the copyrights, SCO or Novell. Other than the joy of shutting SCO up, which can't be altogether discounted, it doesn't matter to IBM, because they are asking that the court declare that they are not violating *the* copyrights, no matter who owns them, that there is no infringing code in Linux, and if they get that declared by the court, who cares who owns the copyrights? Of course, life would likely get simpler if SCO doesn't or can't prove it owns the copyrights, but even if Novell were to turn traitor and hand over all the copyrights, or Judge Kimball turned out to be in Hatch's back pocket and he awarded the copyrights to SCO in some horrible nightmare, it makes no difference to IBM if there is no infringing code in Linux. It only matters to SCO's cases.

It's the same with IBM's 10th Counterclaim. They aren't harmed a bit even if their motion is denied, other than the annoyance factor. It only means they might have to wait a bit before bringing another motion, like after discovery is more complete, or worst case, they will have to wait until trial to win. They can't "lose" that motion in that sense. In fact, if all they get out of it is the discovery information they have gleaned, they have already gotten a leg up. So almost everything is on the table for SCO, and virtually nothing but the ineffable anguish of having to deal with SCO a little bit longer for IBM, which, if they like eating their dish of vengeance cold, might not be a problem.

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

Law Offices
HATCH JAMES & DODGE
Letterhead

June 10, 2004

Via Hand Delivery

Honorable Dale A. Kimball
United States District Court for the District of Utah
[address]

Re: The SCO Group v. International Business Machines Corporation,
Civil No. 2:303cv0294

Dear Judge Kimball:

We write in response to David Marriott's June 9 letter to the Court regarding IBM's Tenth Counterclaim in the above-captioned matter, submitted to the Court and received by us this morning. In that letter, Mr. Marriott contends that IBM's Tenth Counterclaim is compulsory. This distinction bears on SCO's pending Motion to Dismiss or Stay the Tenth Counterclaim as well as on the Motion to Amend the Scheduling Order. Although SCO will brief the issue in detail in support of the Motion to Dismiss to be argued on August 4, the pendency of the motion to revise the scheduling order requires us to respond to Mr. Marriott's letter here. The position Mr. Marriott has taken assumes a substantially inaccurate view as to what SCO's case is (and is not) about, and this issue directly affects the efficient organization of the case -- a matter directly before the Court on the pending m otion to amend the scheduling order.

We submit that IBM's Tenth Counterclaim is permissive. A counterclaim is compulsory only if the resolution of the plaintiff's claim would preclude the defendant from bringing its claim. See Driver Music Co. v. Commercial Union Ins. Cos., 94 F.3d 1428, 1435-36 (20th Cir. 1996). None of the claims in SCO's complaint could operate in that manner with respect to the Tenth Counterclaim, including because that counterclaim would add to the case a broad new range of issues about the improper contributions to Linux by many entities other than IBM. Those issues plainly do not arise out of the same transaction or occurrence as SCO's claims.

SCO has asserted claims against IBM based on IBM's own conduct. The principal, although not exclusive, claims are contractual. All claims address IBM's improper contributions to Linux, in violation of SCO's contract and other rights. All of SCO's claims address only IBM's improper contributions, and have nothing to do with the improper contributions (known or unknown) of any other entity.

If IBM's Tenth Counterclaim sought nothing more than a declaration that IBM had no liability with respect to these claims advanced by SCO, it would not unmanageably broaden the case -- and it would also be essentially irrelevant.

IBM's own contributions to Linux are at the center of the lawsuit SCO brought. By contrast, IBM's new focus would sweep in the wide range of new issues involving potential IBM liability as an end-user of a program which contains infringing contributions to Linux made by others. (Linux was developed by the contributions of thousands of programmers operating without any screen or check.).

SCO has not brought into this action these issues concerning the contributions of others, and SCO has no obligation to do so. These issues are plainly separate from what IBM itself is responsible for having done, and the forced addition of these issues here would slow down and encumber the process of reaching a decision on the merits of the propriety of what IBM has done. [1]

For example, adjudicating these wholly separate and new issues would require one mini-litigation after another to determine the nature and circumstances of each third-party's contribution to Linux (as distinct from IBM's contributions). As SCO establishes each such improper contribution, each such third-party contributor will contest that showing, effectively creating the need for one litigation after another (within the sweeping scope of IBM's new claim), based on one instance of improper contribution after another.

Given these facts, IBM's Tenth Counterclaim cannot be compulsory. The "activities relating to Linux" that it seeks to place in issue have nothing to do with the conduct unique to IBM that SCO challenges in this lawsuit. They do not arise out of the same transaction or factual nexus, because they do not involve improper contributions to Linux by IBM. If IBM were correct, then SCO would have to add claims relating to the conduct of third parties here simply because it has sued IBM based on conduct unique to IBM. According to IBM's logic, if SCO does not do this, SCO would lose those unrelated claims forever. Similarly, according to IBM's logic, if IBM does not add the encumbrances of its Tenth Counterclaim, and SCO wins as to IBM's own conduct, then IBM would also automatically be liable for the actions of many unrelated third parties in improperly contributing to Linux merely because IBM -- like numerous other entities -- uses Linux. These positions cannot withstand analysis and do not remotely satisfy the black-letter test governing what constitutes a compulsory counterclaim.

The same sweeping breadth of IBM's Tenth Counterclaim that establishes its non-compulsory character reinforces a point of critical importance to the scheduling amendment motion. The addition of all of these new and unrelated issues to the present case would unavoidably encumber its progress and impede its efficient adjudication on the merits of the propriety of IBM's own, challenged conduct. IBM's efforts on March 29 of this year to sweep into this case all of the issues relating to all of the contributions of others to Linux could not help but preclude efficient and orderly progress toward the resolution on the merits of the propriety of IBM's own contributions to Linux. (See SCO's Reply Memorandum in Support of Its Motion to Amend the Scheduling Order dated may 28, 2004, at 16 & n.20.)

For the reasons set forth above and in support of the pending Motion to Amend the Scheduling Order, IBM's Tenth Counterclaim is permissive.

Respectfully submitted,

BY: _____[signature]____
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch

BOIES, SCHILLER & FLEXNER LLP
Robert Silver

Attorneys for Plaintiff The SCO Group, Inc.

c: Todd Shaughnessy


[1] IBM asserted otherwise during the June 8 hearing via their chart enumerating claims and counterclaims -- where it stated that its counterclaims correlated to what it called a SCO "Theory No. 2". The chart was simply mistaken. In asserting that the breadth of IBM's Tenth Counterclaim matched and was justified by any SCO theory, IBM was asserting that SCO had a theory other than a theory addressed to IBM's own improper contributions to Linux. IBM did not offer any basis for that claim, there is no such basis, and the claim is simply inaccurate.

  


Hatch's Letter to Judge Kimball -- Is IBM's 10th CC Permissive or Compulsory? | 230 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
This is the typo thread
Authored by: Wol on Wednesday, September 01 2004 @ 03:12 AM EDT
Corrections etc here

[ Reply to This | # ]

OT Here
Authored by: bonzai on Wednesday, September 01 2004 @ 03:13 AM EDT
.

[ Reply to This | # ]

And here is the bridge for silicon life forms to hide under
Authored by: Wol on Wednesday, September 01 2004 @ 03:13 AM EDT
ie trolls, off topic, and various other irrelevancies

[ Reply to This | # ]

SCO: Without any common sense
Authored by: Anonymous on Wednesday, September 01 2004 @ 03:42 AM EDT
This letter is a really good example of games that SCO are trying to play with
the legal system. They are trying to portray things as if CC10 would somehow
require some huge effort and that it would make the case into something it's
not, because it would address all contributions by all developers.

But the common sense is this: take the comparator, run System V against Linux
and find out. Who wrote it doesn't matter. If anything, and I mean *anything*
comes up, then CC10 has no chance whatsoever. Otherwise, what's the beef Darl?

And we all know that comparison of System V and Linux isn't going to turn up
anything. That's why SCO keep avoiding this issue all the time.

What a bunch of liars!

[ Reply to This | # ]

Hatch's Letter to Judge Kimball -- Is IBM's 10th CC Permissive or Compulsory?
Authored by: inode_buddha on Wednesday, September 01 2004 @ 03:42 AM EDT
Looks to me like Hatch is finally starting to take it on and is realizing that
he *still* has a "dog" of a case.

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

[ Reply to This | # ]

History does repeat itself.
Authored by: Anonymous on Wednesday, September 01 2004 @ 04:06 AM EDT
I was sitting in an IBM meeting 20 years ago and one of the other participants
said "That's a loser, it's like re-arranging the deck chairs on the
Titanic". Still fits doesn't it? :-)

[ Reply to This | # ]

OT - definition of "Compulsory" and "Permissive" counterclaims
Authored by: Totosplatz on Wednesday, September 01 2004 @ 04:09 AM EDT

I still don't get the distinction between these two kinds of things. It seems that compulsory counterclaims have to be raised or they can't be raised later or in another case. Is this the idea?

In any event, thanks. I know this has been discussed before and I didn't get it then either.

---
All the best to one and all.

[ Reply to This | # ]

Permissive or Compulsory?
Authored by: Brian S. on Wednesday, September 01 2004 @ 04:10 AM EDT
Reading between the lines.

Permissive counterclaim - A counterclaim which does not directly arise as a
result of the original claim and therefore needs the court's permission to be
entered in this context.

Compulsory counterclaim - A counterclaim which must be put at this time in order
not to cede some point to the original claim.

Am I correct, close or just plain wrong?

Brian S.

[ Reply to This | # ]

Hatch's Letter to Judge Kimball -- Is IBM's 10th CC Permissive or Compulsory?
Authored by: soronlin on Wednesday, September 01 2004 @ 04:11 AM EDT
Ignoring the fact that SCOG have not produced any evidence of Unix code being in
Linux, (didn't they say at one point that there wasn't any?) Any suspect code
identified by SCOG has to be analysed. If that were my code I should be happy to
let the Nazgul litigate it, but in general I would expect to get my day in court
to explain myself. If my code were decided to be derivative I would not want
that to happen without my input.

Now IBM does have other lines of attack, via anceint Unix and the lack of
copyrights, for example, or via BSD. But at the end of the day it is the right
of any third-party author to be involved.

That's not to say SCOG's argument is correct; this counterclaim does seem to be
at home in this case, and any failure by SCOG to claim against IBM's copying of
Linux is their problem.

Suppose CC10 were seperated. Then it would be possible (but very unlikely, of
course) to get the result that IBM has copied SCOG protected code into Linux,
but that everything it does with Linux is legal and above-board. That is plainly
nonsensical.

In fact (IMHO,IANAL) the first thing SCOG would do if CC10 were seperated would
be to file a motion to suspend it until the main case was decided.

[ Reply to This | # ]

I'm getting tired of SCO's libel..
Authored by: cheros on Wednesday, September 01 2004 @ 04:50 AM EDT
You know, I'm starting to get rather tired of the IMO libellous claims SCO is making with respect to the contributions to Linux.

"Linux was developed by the contributions of thousands of programmers operating without any screen or check"

Many eyes make shallow bugs does not equate to no check.
Maybe we need to amend this: many eyes make shallow copyright violations.

This is yet again trying to perpetuate the myth that Linux is coded by some geeks in their garage. Well, firstly, that's how companies like MS and Borland started (note the past tense here) and secondly, most of the people I've dealt with recently professionally code for a living and contribute with explicit permission of the companies they work for, simply because it makes economic sense. But that principle of give and take hasn't quite made it to Utah.

= Ch =

[ Reply to This | # ]

Eh? I am puzzled by the replies
Authored by: elderlycynic on Wednesday, September 01 2004 @ 05:48 AM EDT
Unless I have got totally confused, IBM gave at least two
specific examples of code that was written entirely by IBM
and contributed to Linux. Now, Hatch is right that IBM have
made at least one over-general request (though I can't remember
if it was in the 10th whatsit), but seems to be implying that
the issue is SOLELY about code written by third parties.

If that is so, it leaves Kimball with the trivial solution of
accepting IBM's claims as compulsory insofar as they refer to
code owned by IBM, and no further. I don't see that helps SCO
much.

[ Reply to This | # ]

Weird admission from Hatch
Authored by: Dark on Wednesday, September 01 2004 @ 06:48 AM EDT
From Hatch's letter: (emphasis mine)
Similarly, according to IBM's logic, if IBM does not add the encumbrances of its Tenth Counterclaim, and SCO wins as to IBM's own conduct, then IBM would also automatically be liable for the actions of many unrelated third parties in improperly contributing to Linux merely because IBM -- like numerous other entities -- uses Linux. These positions cannot withstand analysis and do not remotely satisfy the black-letter test governing what constitutes a compulsory counterclaim.
Here we have SCOG arguing that it makes no sense to sue end-users of Linux for the use of SCOG code that someone else has put in. I never thought I'd see the day. Their self-contradictions have come full circle.

[ Reply to This | # ]

"no infringing code in Linux" is not being covered? (either I'm wrong, or PJ is)
Authored by: chiark on Wednesday, September 01 2004 @ 08:55 AM EDT
I've read this article, and I *think* that it may be stating incorrectly what
IBM is trying to achieve.

I am not trolling, I think there's an overstatement that's all!

PJ wrote: "[IBM] are asking that the court declare that they are not
violating *the* copyrights, no matter who owns them, that there is no infringing
code in Linux..."

I don't read this to be the case at all. IBM is deliberately saying that they
only want SCO to certify that IBM has not submitted any SCO copyrighted code to
Linux. It goes out of its way to show that it is not asking SCO to do anything
with respect to any party other than IBM.

With this in mind, the counterclaim is not trying to show that "there is no
infringing code in Linux", only that there is no infringing code submitted
by IBM in there.

If I am wrong, could someone please explain where I've gone wrong and how IBM is
trying to certify that Linux is free of infringing code?

Thanks,
Nick

[ Reply to This | # ]

man behind the curtain...
Authored by: Anonymous on Wednesday, September 01 2004 @ 09:02 AM EDT
"Hatch tells the judge that IBM is trying to sweep into the case new claims
and theories attributed to SCO that do not belong in the case, and he suggests
that it would greatly prolong the case if the claims were to be adjudicated as
part of the IBM lawsuit. SCO, he asserts, is only bringing contract claims
against IBM. How can IBM now try to get a clean bill of health for the
contributions of all contributors to Linux?"

Now WHO in the world would have the biggest problem if this was to happen? Sco?
(Hint - it starts with 'mi' and ends in 'ft')...

Don't pay any attention to the man behind the curtain!

[ Reply to This | # ]

  • forgot to add... - Authored by: Anonymous on Wednesday, September 01 2004 @ 09:04 AM EDT
    • ROI - Authored by: Anonymous on Wednesday, September 01 2004 @ 09:05 AM EDT
What About RedHat???
Authored by: orpheus52 on Wednesday, September 01 2004 @ 09:55 AM EDT
My understanding of the reason for compelling is to allow the court to settle
ALL related charges in ONE action, and avoid a wasteful multiplicity of
litigation.
SCO asked for a stay on the RedHat case because the infringment issues RedHat
was trying to adjudicate would be decided in the SCO vs IBM case in Utah. SCO
has challenged ALL of IBM's Linux activities (including the internal copying
and use of Linux) for a year and a half in court on in the media. Now Brent says
" SCO's claims address only IBM's improper contributions and have nothing
to do with the improper contributions (Known and unknown) of any other
entity." Then why the stay on the RedHat case? SCO claimed that the
infringment issues would be decided in the IBM case. Now Brent says "SCO
has not brought into this issues concerning the conduct of others and SCO has no
obligation to do so." I think you do because of the stay on RedHat. I think
that Brent is admitting there is no infringing code in Linux and is trying not
to get thrown out of court by NOW claiming its case isn't about Linux but about
IBM. I think its time to flush.

[ Reply to This | # ]

what if its always been just the contract?
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:00 AM EDT
(anonymous because its become difficult to pursue anything but the 'groklaw
concensus' and that's not helping us analyse SCOG's action and intentions. Knee
jerk (over)reactions belong on /. not groklaw.)

What if SCOG can really win on the contract claim? What if the copyright issue
is only useful in jacking up the price IBM eventually pay to settle out of
court?

A lot of SCOG's apparently madness starts to look a lot less crazy if you assume
ONLY the contract claim has ever been important, the real goal has always been
an out of court settlement with IBM and everything else is there only to push up
the settlement value.

SCOG have been careful to avoid copyright claims in most of their cases, even
the initial IBM claim seems to include trade secrets & copyrights purely to
support their demands for discovery. When initial discovery was complete they
dropped those claims, before they could possibly have examined enough
AIX/Dynix/Linux source to warrant dropping them.

Even now SCOG are fighting to not have the claims heard in IBM v SCOG rather
than trying to defend them. Its inconceivable they cannot find an innocent
source match sufficient to defeat IBM's summary motions. In all other cases
they're fighting to have IBM heard first whilst fighting to ensure copyright is
not part of the IBM case. It looks like they're trying to get an IBM settlement
while copyright FUD still has some value, they aren't actually interested
in/dont expect to win the claim.

Darl's persistent mouthing off about copying isn't quite so counter productive
if the plan was to avoid litigating copyright. And notice: the only things Darl
has been circumspect about discussing are the contract related documents though
he persistently reminds us they exist. It just doesn't feel like the Darl
comments we've got used to on every other part of the case even accounting for
those documents being sealed.

Even their novel derivatives theory looks slightly less crazy if they had some
plan to use contract rather than copyright law as its basis.

The obvious aspect that makes even less sense with this theory is SCOSource but
I can't have everything.

Unfortunately it all went wrong when IBM attacked the FUD first. IBM are
carefully dismantling all the uncertainties and whittling the whole affair down
to just the contract, paring off all SCOG's opportunities to 'add value' to the
final settlement even if they lose. IBM's lawyering may be even better than it
looks much as SCOG's plan may be smarter than it looks.

Oh well, time to prepare for the flood of vitriolic responses .

[ Reply to This | # ]

I missed the train somehow
Authored by: Anonymous on Wednesday, September 01 2004 @ 11:38 AM EDT
How can the court certify that there is no infringment by IBM?

ISTM that such a declaration could only be based on SCO's inability to introduce proof of infringement, which is 'absence of evidence' not 'evidence of absence'.

I can see how that would lead to the court dismissing SCO's complaint, but how could the court certify that IBM (or any other party) did not in any way infringe the copyright?

Makes me wonder if this is not the legal equivalent of sacrificing a pawn to capture a (c)rook.

[ Reply to This | # ]

OT: are private citizens allowed to give Judges gifts?
Authored by: seeRpea on Wednesday, September 01 2004 @ 12:21 PM EDT
cause I sure would like to give one to Judge Gajarsa

DMCA claims bought down to earth!
http://www.eff.org/legal/cases/Chamberlain_v_Skylink/20040831_Skylink_Federal_Ci
rcuit_Opinion.pdf

and
http://www.corante.com/copyfight/archives/005957.html

[ Reply to This | # ]

Hatch's Letter to Judge Kimball -- Is IBM's 10th CC Permissive or Compulsory?
Authored by: Anonymous on Wednesday, September 01 2004 @ 02:46 PM EDT
so what is a "black-letter test". I couldn't find a definition,
although I googled some other usages. It seems to be legal jargon but law.com
didn't have it.

[ Reply to This | # ]

Hatch's Letter vs 2nd Amnded Complaint
Authored by: rand on Wednesday, September 01 2004 @ 03:59 PM EDT
Hatch Letter:
IBM's own contributions to Linux are at the center of the lawsuit SCO brought.
Second Amended Complaint, Fifth Cause of Action:
179. IBM's breaches of the IBM Related Agreements ... have infringed ... copyright registrations of SCO and its predecessors.
SCO does not seek any declaration of that "fact" in it's prayers for relief. IBM does want a declaration, confirming whether it is false, hence CC10. Since SCO could conceivably hit IBM with a lawsuit in the future on the same point, IBM considers CC10 compulsory.

It seems to me:

SCO is mistaken that they don't have to show 3rd party infringement. To prevail on the point in pp 179 of the 5th Cause, SCO has to show
(1) they have valid copyrights and
(2) somebody violated those rights. Only then can they allege
(3), that somebody was IBM.

To prevail on CC10 IBM needs to prove
(1) SCO fails to show valid copyrights, or, if (1) is true then
(2) SCO fails to show that anybody violated those rights or if (2) is true then
(3) that SCO has not shown it was IBM.

However, since, as a matter of law, the burden of proof is on the copyright holder is situations like this:

To prevail on CC10, SCO would have to show
(1) they have valid copyrights,
(2) someone violated those rights, and
(3), that someone was IBM.

The standards of proof and the evidence required in each case is the same, reinforcing the notion that CC10 is in fact compulsory.

---
Eat a toad for breakfast -- it makes the rest of the day seem so much easier (Chinese (I'm told) proverb) (IANAL and so forth and so on)

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Why it's compulsory - SCO complaint about 3rd party conduct
Authored by: GLJason on Wednesday, September 01 2004 @ 06:45 PM EDT
SCO says (paraphrasing) "Whoa, wait a minute... Our complaint is mostly about the contract, not copyright. The primary copyright complaint is about IBM using AIX and Dynix after we revoked their license. We don't know where they got the idea we think that Linux infringes our copyright."

How about in their own complaint? Clearly the proposition that Linux infringes SCO's copyrights was introduced by SCO. Below is a large list of instances where SCO claims Linux infringes their COPYRIGHTS. There's no way to tell from their complaint that it isn't about Linux violating their copyrights, in fact it seams like that is a large part of it. And not just because they claim copyright on IBM's contributions, but the contributions of others as well. Check out #78 and #79 where they talk about the problem being with the Linux design process, not with IBM's own contributions:

78. However, as is widely reported and as IBM executives knew, or should have known, a significant flaw of Linux is the inability and/or unwillingness of the Linux process manager, Linus Torvalds, to identify the intellectual property origins of contributed source code that comes in from those many different software developers. If source code is code copied from protected UNIX code, there is no way for Linus Torvalds to identify that fact.

79. As a result, a very significant amount of UNIX protected code and materials are currently found in Linux 2.4.x, Linux 2.5.x and Linux 2.6.x releases in violation of SCO’s contractual rights and copyrights.

And now all (or most that I could find anyway) places where they specifically mention Linux infringing their copyrights:

3. A variant or clone of UNIX currently exists in the computer marketplace called “Linux.” Linux is, in material part, based upon UNIX source code and methods.
4) ... As such, the Linux 2.4.x and Linux 2.5.x and 2.6.x kernels are unauthorized derivatives of UNIX System V.
6) c) incorporating (and inducing, encouraging, and enabling others to incorporate) SCO’s proprietary software into Linux open source software offerings.
75) Linux is an operating system variant or clone of UNIX System V Technology.
79) As a result, a very significant amount of UNIX protected code and materials are currently found in Linux 2.4.x, Linux 2.5.x and Linux 2.6.x releases in violation of SCO’s contractual rights and copyrights.
97. The only way that the pathway is an “eight-lane highway” for Linux to achieve the scalability, SMP support, fail-over capabilities and reliability of UNIX is by the improper extraction, use, and dissemination of the proprietary and confidential UNIX source code, derivative works and methods.
110. IBM is affirmatively taking steps to destroy all value of UNIX by improperly extracting and using the confidential and proprietary information it acquired from UNIX and dumping that information into the open source community. As part of this effort, IBM has heavily invested in the following projects to further eliminate the viability of UNIX:
a)The Linux Technology Center was launched in 2001 with the intent and foreseeable purpose of transferring and otherwise disposing of all or part of UNIX, including its derivative works, modifications and methods, into an open source Linux environment;
b) The IBM Linux Center of Competency was launched to assist and train financial services companies in an accelerated transfer of UNIX to Linux with the advertised intent and foreseeable purpose of transferring and otherwise disposing of all or part of UNIX, including its derivative works, modifications and methods into open source.
c)A carrier-grade Linux project has been undertaken to use UNIX source code, derivative works, modifications and methods for the unlawful purpose of transforming Linux into an enterprise-hardened operating system;
d) A data center Linux project has been undertaken to use UNIX source code, derivative works, modifications and methods for the unlawful purpose of transforming Linux into an enterprise-hardened operating system; and
109. But for IBM’s coordination of the development of enterprise Linux, and the misappropriation of UNIX to accomplish that objective,
122) ... to open source development of Linux and by using UNIX development methods in making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product.
153) ... transferring portions of the Software Product (including System V source code, modifications, derivative works and methods based thereon),
155) ... making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product
184) a) Misappropriation of source code, methods, trade secrets and confidential information of plaintiff;
184) e) Contribution of protected source code ...

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Hatch: I would have got away with it, if it weren't for those pesky Nazgul
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:15 PM EDT
What I find most curious about Hatch's letter (a theory also propounded in their reply memo in support of dismissal/stay of CC10), is this:

First he argues that IBM's counterclaim is not compulsory - because it's not the exact mirror of SCO's claims (and therefore can (and should) be dismissed as in makes the litigation over-complicated), note the emphasis added sections:
We submit that IBM's Tenth Counterclaim is permissive. A counterclaim is compulsory only if the resolution of the plaintiff's claim would preclude the defendant from bringing its claim. See Driver Music Co. v. Commercial Union Ins. Cos., 94 F.3d 1428, 1435-36 (20th Cir. 1996). None of the claims in SCO's complaint could operate in that manner with respect to the Tenth Counterclaim, including because that counterclaim would add to the case a broad new range of issues about the improper contributions to Linux by many entities other than IBM. Those issues plainly do not arise out of the same transaction or occurrence as SCO's claims.

SCO has asserted claims against IBM based on IBM's own conduct. The principal, although not exclusive, claims are contractual. All claims address IBM's improper contributions to Linux, in violation of SCO's contract and other rights. All of SCO's claims address only IBM's improper contributions, and have nothing to do with the improper contributions (known or unknown) of any other entity.
Then he asserts that even if IBM's counterclaim were the exact mirror of SCO's claims, it would be unnecessary (and although he doesn't state it, the subtext is that it should be dismissed in this case too).
If IBM's Tenth Counterclaim sought nothing more than a declaration that IBM had no liability with respect to these claims advanced by SCO, it would not unmanageably broaden the case -- and it would also be essentially irrelevant.


There are two things that follow from Hatch's logic:

1. According to Hatch, IBM's 10th counterclaim ought to be dismissed - regardless of whether it's an exact mirror or not, of SCO's claims

2. The second quoted section (and some other text) would be entirely redundant and unnecessary, if IBM's 10th counterclaim were not a mirror of SCO's claims. It would seem that Hatch isn't entirely confident that it's not. Perhaps that's because SCO alleges six different types of copyright infringement by IBM in their complaint (see my other post on this), despite what his letter says that SCO is alleging.

Quatermass
IANAL IMHO etc

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Hatch's Letter to Judge Kimball -- Is IBM's 10th CC Permissive or Compulsory?
Authored by: lifewish on Thursday, September 02 2004 @ 08:21 AM EDT
That's a fair point and a possibly highly accurate analysis of the SCOundrels'
thinking.

I've noticed that people tend to get taken less seriously if they attack the
groklaw culture as opposed to the individual groklaw majority opinions.

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"Diplomacy: the art of saying 'Nice doggy' until you can find a stick" - Wynn
Catlin

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