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| SCO Corrects Memo In Opp. to IBM's Motion for PSJ on Copyright Infringement (8th CC) - PDF & text |
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Monday, December 13 2004 @ 10:30 PM EST
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You know how some days you just can't do one thing right? Well, I gather SCO had one of those days, and it has now submitted a list of corrections, in its
SCO's Corrections to Its Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on Copyright Infringement (8th Counterclaim). It corrects some dates in an attached declaration by Erik Hughes and some urls in the memo and also supplies a missing page of an attached declaration by Chris Sontag. Just one of those days, I gather. There is no penalty for being human, naturally.
However, I admit I am looking forward to seeing in what way SCO thinks Professor Eben Moglen's paper, which they cite, can possibly help them. They quote Mark Radcliff's article because he thinks the GPL is a bit unclear, I guess. Radcliff also glosses over the MySQL ruling, as if the judge, US District Judge Patti B. Saris, expressed no opinion at all on the GPL, whereas in fact she said that the party relying on it had the stronger argument. Here is a snip from the Free Software Foundation's press release at the time of the judge's ruling on the preliminary injunction ruling: "In the public hearing this week, Judge Saris made clear that she sees the GNU GPL to be an enforceable and binding license, but that as long as Progress Software appears to be presently in compliance with the GNU GPL, there is probably no irreparable harm being caused to MySQL AB. Since Progress did previously distribute in violation of the GNU GPL and thus did harm MySQL AB and the Free Software community, the FSF expects MySQL to prevail at trial on these claims. The Court recognizes in today's order that MySQL 'seems to have the better argument'." You can also read the notes of an IP attorney, Ed Kelly, sent to Tim O'Reilly. Kelly, who attended the oral arguments in the case, concludes: "One interesting point: it did not appear that anyone was arguing that the GPL did not apply or was not a valid license. It sounded as though the GPL was treated as any other license would be in a software context. . . .All in all it appears that this federal court considers the GPL to be a valid license (which shouldn't be surprising - but it has been an issue from time to time and commented on in the academic literature) with a somewhat ambiguous clause about the obligations that arise when you distribute code that combines GPL code with code that was developed independently." I think to say that the GPL has never had a day in court would be misleading, at best. Finally, SCO cites the article by Professor Richard Epstein, on the alleged unsustainability of Open Source Software, already mentioned on Groklaw and ably answered by Professor James Boyle. SCO didn't attach Prof. Boyle's article, naturally. They also don't attach Professor Epstein's reply to Professor Boyle, which admirably begins: "The recent response of Jamie Boyle encapsulates many but by no means all of the barrage of criticisms directed my way for my recent column, on the sustainability of open source software. The defenders of the system are able and articulate, and their conviction that this co-operative mode of social organisation is preferable to the more proprietary systems may well supply the strongest evidence that the system will survive and perhaps flourish." Professor Epstein appears to be an honest man, in short. His problem is, he doesn't yet fully understand the GPL, which is not a sin. However, he should probably contact Professor Moglen to get his questions answered, instead of writing articles that litigants can misuse to try to "prove" points based on his misunderstanding. Heavens to Betsy. If I were as nonchalant in my research before I wrote an article, folks would probably put up whole websites telling the world all about it. And if folks aren't careful, a sleazy litigant could just get authors to write articles saying whatever is helpful to their case and then a month or two later cite it as "proof" in a law suit. Happily, as IBM has pointed out already, news articles are not evidence. I think SCO may need to file another correction though. The link to Epstein's article is still inaccurate. The correct link is: http://www.ft.com/cms/s/78d9812a-2386-11d9-aee5-00000e2511c8.html They have it as:
http://www.news.ft.com/cms/s/78d9812a-2386-11d9-aee5-00000e2511c8.html Like I said, some days you just can't do a thing right.
*********************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address, phone, fax]
Robert Silver (admitted pro hac vice)
BOIES. SCHILLER & FLEXNER LLP
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
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THE SCO GROUP
Plaintiff/Counterclaim-Defendant
vs.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
Defendant/Counterclaim-Plaintiff
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SCO'S CORRECTIONS TO ITS
MEMORANDUM IN
OPPOSITION TO
IBM’S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON ITS CLAIM
OF COPYRIGHT INFRINGEMENT
(EIGHTH COUNTERCLAIM)
Case No. 2:03-CV-0294 DAK
HonorabIe Dale A. Kimball
Magistrate Judge Brooke C. Wells
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The SCO Group, Inc. ("SCO") respectfully submits these corrections regarding its Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on its
Counterclaim for Copyright Infringement (Eighth Counterclaim) (Nov. 30, 2004) (the "Memorandum"), and a supporting declaration thereto:
1. Attached at Exhibit A is the entire Declaration of Christopher Sontag. The first page had been inadvertently omitted from SCO's filing.
2. Attached at Exhibit B is an amended Declaration of Erik Hughes, which replaces in paragraph 12 the phrase "Prior to filing of its Second Amended Counterclaim on March 29, 2004," with "Prior to the filing of its Counterclaim on August 6, 2003."
3. On page 10, line 3 of the Memorandum, the phrase "Prior to filing of its Second Amended Counterclaim on March 29, 2004," should be "Prior to the filing of its Counterclaim on August 6, 2003."
4. On page 25, lines 10-11 of the Memorandum, the phrase "until IBM filed its Eighth Counterclaim, on March 29, 2004," should be "until IBM filed its Counterclaim on August 6, 2003."
5. On page 11, footnote 1 of the Memorandum, the citation to the Moglen article should be
http://www.gnu.org/philosophy/sco/sco-v-ibm.html. A copy of this article is attached at Exhibit C.
6. On page 12, line 8 of the Memorandum, the citation to the Radcliffe article should be
http://www.alwayson-network.com/comments.php?id=P1303_0_4_0_C. A copy of this article is attached at Exhibit D.
7. On page 18, footnote 2 of the Memorandum, the citation to the Epstein article should be
http://www.news.ft.com/cms/s/78d9812a-2386-11d9-aee5-00000e2511c8.html. A copy of this article is attached at Exhibit E.
Wherefore, SCO respectfully requests that its Memorandum and supporting declarations be deemed corrected as set forth above.
Dated this 9 day of December 2004.
By: ___[signature]_____
Mark F. James
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of SCO's Corrections to its Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on its Claim of Copyright Infringement (Eighth Counterclaim) was served on Defendant International Business Machines Corporation on this 9th day of December, 2004, by U.S. mail postage prepaid or by hand delivery to:
By U.S. mail. postage prepaid:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLPL
[address]
Donald J. Rosenberg, Esq.
[address]
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.
Exhibits/
Attachments to this document have not been scanned.
Please see the case file.
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| Authored by: chrisbrown on Monday, December 13 2004 @ 10:33 PM EST |
| n/t [ Reply to This | # ]
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| Authored by: chrisbrown on Monday, December 13 2004 @ 10:35 PM EST |
Don't forget to HTML tag your links...
<a href="http://www.superneatosite.com/">text</a>[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 13 2004 @ 10:41 PM EST |
Perhaps the SCO attorneys read Groklaw to find their mistakes. Maybe they could
use Groklaw to find different clients.[ Reply to This | # ]
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| Authored by: Gothic`Knight on Monday, December 13 2004 @ 10:41 PM EST |
I thinks its called having a blonde day: LOL PJ.... perhaps SCO should get you
doing their research.
When the going gets tough its time to have nap.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 13 2004 @ 11:00 PM EST |
Re: 5/Moglen
I believe the answer on Moglen is that in Moglen's article he comments on IBM
transferring S/390 copyrights to FSF, and FSF asking SCO whether any of those
are alleged to infringe SCO's copyrights.
SCO uses this to claim that IBM may not be the copyright owner of one of the 16
copyrighted Linux modules/programs that IBM is alleging SCO has copyright
infringed in Counterclaim 8
My guess: I believe SCO is probably wrong :-
(a) I believe the S/390 related copyrights that IBM transfered to FSF, are the
patches to GCC (etc) for S/390 compatiblity.
(b) Whereas the S/390 related copyrights that IBM is talking about in
Counterclaim 8, are patches to Linux kernel for S/390 compatibility
To be fair to SCO, if SCO is wrong in this way, it may be in part because
Moglen's comments are not entirely clear about which S/390 related copyrights he
is claiming are owned by FSF
In any case, I'm not sure if the Moglen article is admissable, for the same
reason as SCO's using other news articles used for the truth of their content -
so I would speculate that there may be a motion to strike from IBM on this
(similar to the motion to strike some of SCO's material that was submitted in
opposition to Counterclaim 10)
Re: Items 2,3,4
I find this part, ever so slightly amazing
First of all Mr Erik W. Hughes appears to have given an affidavit about when IBM
first alleged SCO had infringed their copyrights. And prior to the correction,
this date was wrong in the sworn affidavit.
Second, why was Mr Erik W. Hughes picked to give this affidavit? My
understanding is that he is a SCO employee, not a lawyer. I find it slightly
odd that they chose him to testify as to the procedural history of the case.
Third, I find it more amazing that Mr Harrop (a SCO lawyer) whose affidavit
(covered by IBM's previous motion to strike) is referenced in SCO's memo (to
which this article is SCO's correction) is testifying as to substantive facts,
such as how Linux was created about twelve years ago. I find this more amazing
than my second point. Mr Harrop's declaration is mentioned by reference in the
memo, but not the correction -- so I mention this third point to contrast it to
my second point (it almost looks like part of a pattern)
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: jim Reiter on Monday, December 13 2004 @ 11:15 PM EST |
As a legal team, TSG has an embarrassment on its hands. OTOH as a client, Boies,
Schiller has an equal embarrassment on his hands.
These people do deserve each other.
TSG is dead, an apparent suicide. If you work at TSG don't drink the Kool-ade.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 13 2004 @ 11:19 PM EST |
The Moglen statement is probably in reference to the copyrights for "IBM's
modifications to the kernel for use with IBM's S/390 mainframe computers,
assigned to the Foundation by IBM". This might be related to SCO's defense
of selective enforcement and therefore estoppel. (Of course this defense is
confused because they say the FSF selectively enforces its own copyrights, but
why ever should that have the slightest bearing on IBM choosing to enforce their
own copyrights?)
Another possibility is the statement "The combination of GNU and the Linux
kernel produces the GNU/Linux system, which is widely used on a variety of
hardware and which taken as a whole duplicates the functions once only performed
by the UNIX operating system." That effectively establishes SCO's claims
and demonstrates beyond a reasonable doubt that the Linux people are a bunch of
thieving pirates who all owe SCO $699.
[ Reply to This | # ]
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- Alternative view - Authored by: Anonymous on Tuesday, December 14 2004 @ 05:48 AM EST
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| Authored by: fudisbad on Monday, December 13 2004 @ 11:33 PM EST |
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".
Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.
PJ says you must be on your very best behavior.
If you want to comment on this thread, please post under "OT"
---
FUD is not the answer.
FUD is the question.
The truth is the answer.[ Reply to This | # ]
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| Authored by: blacklight on Monday, December 13 2004 @ 11:51 PM EST |
SCOG is in clear violation of the terms of the GPL. The only way SCOG could
argue that its "IP license" is not a violation of the terms of the GPL
is by claiming that the GPL is unenforceable, null and void. SCOG in its
argumentation chooses to use the phrase "more restrictive SCO IP license
terms" rather than the more accurate phrase "SCO IP license terms that
contradict the terms of the GPL", because use of the more accurate phrase
would kill their argumentation right from the start. SCOG's argument essentially
boils down to its claim that the GPL is unenforceable, null and void and thus
that SCOG can do whatever it wants without violating the terms of the GPL. The
problem of course is that the consequence of repudiating the GPL is being
brought up on copyrights violations, so right now SCOG is in a situation where
SCOG is violating both the GPL and the copyrights of the Linux contributors. I
could call the SCOG top management and its lawyers a bunch of idiots - most
people who have a supersize ego and don't listen to anyone are idiots, but such
name calling belabors the obvious and serves no purpose.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, December 14 2004 @ 12:34 AM EST |
Note:
One interesting point: it did not appear that
anyone was arguing that the GPL did not apply or was not a valid
license.
The judge in this case never even
considered examining the licence for its validity, because that would be
a truly futile exercise. GPL is all about copying, modification and
distribution of copyrighted works, a clear matter of copyright law and
rights explicitly given to the owner of copyright. Nothing to consider,
therefore, the case moved to the "meat" straight away.
Don't be
surprised when judge in SCO v. IBM case does the same. [ Reply to This | # ]
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| Authored by: marbux on Tuesday, December 14 2004 @ 03:22 AM EST |
| This SCO filing and our discussion of parentheses and brackets combined to bring
back a memory.
In the early 1980s, the U.S. Environmental Protection Agency
decided to cancel pesticide registrations for certain herbicides that were
unavoidably contaminated with the most toxic form of dioxin. Dow Chemical
Company and other affected companies and trade associations contested the
decision, so there was a contested case proceeding held before an EPA
administrative law judge (ALJ) that lasted around a year. Dow retained Kirkland
& Ellis to represent it in the hearings. There were numerous intervenors. If
I recall correctly there were about 30 parties on the list for serving
papers.
In short, it was a paper avalanche that claimed the lives of entire
forests of trees. Dow retained several other firms that had support roles. One
of the Dow firms had no visible role other than constantly churning out
"proposed errata" to documents filed by anyone, friend or foe, including the
ALJ. Periodically, Dow would file a motion to take the cumulative proposed
errata as established, and everyone would have to review the stack of errata
notices to make sure they wouldn't do any damage.
Occasionally the proposed
errata were substantive, but usually they just picked on people's spelling, word
choices, and grammar. There was enough substance involved to make it clear that
the firm was not only reading every document but had studied enough to have a
firm grasp on what was going down, on both factual and legal fronts.
The
reasons Dow financed such an obviously expensive effort always eluded me. Maybe
it was part of delivering a message that Dow was committed to spending big bucks
to defend its products. But it always struck me as semi-comical, the vision of
lawyers holed up, carefully reviewing a mountain of paper, like a teacher with a
ruler in her hand, absolutely committed to protecting the integrity of the
American English language.
The process went into recess for a few years when
there was a change in presidential administrations. A few years later, some
covered up evidence got loose, Dow withdrew its opposition to the regulatory
action, and withdrew its relevant products from the market. Somewhere, there are
probably still a few lawyers and paralegals who can brag about the year they
spent proofreading and editing a veritable mountain of paper.
---
Retired lawyer [ Reply to This | # ]
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- I wonder..... - Authored by: Anonymous on Wednesday, December 15 2004 @ 01:08 PM EST
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| Authored by: Anonymous on Tuesday, December 14 2004 @ 07:00 AM EST |
| Hey if they want to track Epstien down, qualify him as an expert witness, and
have him offer actual expert witness testimony that they could use, I guess
thats great for them. But to submit a random
article somebody wrote??
Surely such things cannot be supported by the
court. What's next if they loose
and have to go for appeal? Open the National
Eqnuirer and find some equally
"earnest" article about all presidents since Ike
being replaced
by space
aliens to use as "proof" to argue all judicial appointments are void
anyway so
therefor the court should remand the case to the Truman era at
a future date
that time travel becomes available?! It seems
about as reasonable as what they
are doing here...
Watch the wookie...
[ Reply to This | # ]
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| Authored by: JScarry on Tuesday, December 14 2004 @ 11:19 AM EST |
| Becker and Posner of University of Chicago fame have started a blog. One of
the
first articles is on
patents. [ Reply to This | # ]
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| Authored by: phrostie on Tuesday, December 14 2004 @ 11:29 AM EST |
Just wondering, will this correction cause a delay?
---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu[ Reply to This | # ]
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| Authored by: AntiFUD on Tuesday, December 14 2004 @ 04:22 PM EST |
I was just starting to have serious withdrawal symptoms.
---
IANAL - But IAAAMotFSF - Free to Fight FUD
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| Authored by: ChrisP on Tuesday, December 14 2004 @ 05:19 PM EST |
I'm surprised that no-one else has mentioned this. The court docket, linked from
Tuxrocks, shows:
354-1 Filed: 12/13/04 Entered: 12/13/04
Certificate of service
Docket Text: Certificate of service re: subpoena duces tecum upon PointServe by
Intl Bus Mach Inc
Darl used to be their CEO, and Mike Anderer is presently a member of the board.
A subpoena duces tecum is for a witness to bring documents to the court to
elucidate them.
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: Khym Chanur on Tuesday, December 14 2004 @ 06:37 PM EST |
| How in the world does the sustainability, or lack thereof, of Open Source
Software affect any of the matters in the IBM/SCO case? ---
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 | # ]
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| Authored by: marbux on Tuesday, December 14 2004 @ 07:38 PM EST |
| Microsoft
one of them. ---
Retired lawyer [ Reply to This | # ]
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