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The Motions for Summary Judgment, Etc.
Tuesday, September 26 2006 @ 12:54 PM EDT

I woke up and checked Pacer, and I thought I must have misnumbered yesterday, because the last one yesterday was number 778. And this morning, the last one on the list was #799. It can't be, I thought. But it is. This has never happened before, that we get 20-some documents at once, so, I've been a busy bee today. It's more than twenty, because there are proposed orders too.

I've divided them into two piles, the ones you really want to read, the motions and memos in support, and in the second group, the administrative motions for leave to file excess pages and things like that. And believe it or not, there will be more, because there are 5 documents, important ones, that were conventionally filed.

So, if you're ready, here we go.

The ones you want to read:

IBM's Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action)

IBM's Motion For Summary Judgment on SCO's Copyright Claim (SCO's Fifth Cause of Action)

IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim (SCO's Sixth Cause of Action)

IBM's Motion for Summary Judgment on SCO's Interference Claims (SCO's Seventh, Eighth, and Ninth Causes of Action)

IBM's Motion for Summary Judgment on its Claim for Copyright Infringement (IBM's Eighth Counterclaim)

IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (IBM's Tenth Counterclaim)

SCO's Memorandum in Support of Its Motion for Summary Judgment on IBM's Sixth, Seventh and Eighth Counterclaims

Declaration of Brent O. Hatch Regarding the Exhibits to SCO's Memorandum for Relief for IBM's Spoliation of Evidence

Declaration of Brent O. Hatch Regarding the Exhibits to SCO's Memorandum in Support of Motion for Summary Judgment on IBM's Second, Third, Fourth, and Fifth Counterclaims

Declaration of Brent O. Hatch Regarding the Exhibits to SCO's Memorandum in Support of Motion for Summary Judgment on SCO's Third Cause of Action for Breach of Contracts

Declaration of Brent O. Hatch Regarding the Exhibits to SCO's Memorandum in Support of Motion for Summary Judgment on IBM's Sixth, Seventh and Eighth Counterclaims

And our second group, the administrative documents:

Notice of Conventional Filing of IBM's Memorandum in Support of Motions for Summary Judgment and Declaration of Todd M. Shaughnessy

Proposed Order Granting IBM's Motion for Summary Judgment on SCO's Contract Claims

Proposed Order Granting IBM's Motion For Summary Judgment on SCO's Copyright Claim

Proposed Order Granting IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim

Proposed Order Granting IBM's Motion for Summary Judgment on its Claim for Copyright Infringement (IBM's Eighth Counterclaim)

Proposed Order Granting IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement

Ex Parte Motion for Leave to File Overlength Memorandum in Support of IBM's Motion for Summary Judgment on SCO's Contract Claims

Proposed Order Granting IBM's Ex Parte Motion for Leave to File Overlength Memorandum in Support of IBM's Motion for Summary Judgment on SCO's Contract Claims

Ex Parte Motion for Leave to File Overlength Memorandum in Support of IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim

Proposed Order Granting IBM's Ex Parte Motion for Leave to File Overlength Memorandum in Support of IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim

Ex Parte Motion for Leave to File Overlength Memorandum in Support of IBM's Motion for Summary Judgment on SCO's Interference Claims

Proposed Order Granting IBM's Ex Parte Motion for Leave to File Overlength Memorandum in Support of IBM's Motion for Summary Judgment on SCO's Interference Claims

Ex Parte Motion for Leave to File Overlength Memorandum in Support of IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (IBM's Tenth Counterclaim)

Notice of Conventional Filing of SCO's Memorandum in Support of SCO's Motion for Relief for IBM's Spoliation of Evidence and Exhibits Thereto

Notice of Conventional FIling of Exhibits to SCO's Memorandum in Support of SCO's Motion for Partial Summary Judgment on IBM's Sixth, Seventh, and Eighth Counterclaims

Notice of Conventional Filing of SCO's Memorandum in Support of SCO's Motion for Partial Summary on IBM's Second, Third, Fourth and Fifth Counterclaims and Exhibits Thereto

Notice of Conventional Filing of SCO's Memorandum in Support of SCO's Motion for Partial Summary on SCO's Third Cause of Action for Breach of Contract

Proposed Order Granting IBM's Ex Parte Motion for Leave to File Overlength Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement

IBM-795, Exhibit 1 - Westlaw unpublished cases

#795ExA, GNU General Public Licenses, versions 2 and 2.1

#795ExB, Declaration of Erik W. Hughes

#795Exhibit E, Declaration of Christopher Sontag


  


The Motions for Summary Judgment, Etc. | 445 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic thread
Authored by: Totosplatz on Tuesday, September 26 2006 @ 12:58 PM EDT
Please make links clicky.

Greetings from China.

---
All the best to one and all.

[ Reply to This | # ]

Corrections Here
Authored by: feldegast on Tuesday, September 26 2006 @ 12:58 PM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

The Motions for Summary Judgment, Etc.
Authored by: Anonymous on Tuesday, September 26 2006 @ 01:00 PM EDT
Looks like we'll need to open up a branch legal system just to handle all of the
paperwork in a reasonable timeframe...

[ Reply to This | # ]

Summary listing
Authored by: Anonymous on Tuesday, September 26 2006 @ 01:02 PM EDT
Summary of who filed for summary judgement on which issues of the case.

SCO CAUSES OF ACTION

1. Breach of IBM Software Agreement
- SJ Motion: IBM

2. Breach of IBM Sublicensing Agreement
- SJ Motion: IBM

3. Breach of Sequent Software Agreement
- SJ Motions: IBM + SCO

4. Breach of Sequent Sublicensing Agreement
- SJ Motion: IBM

5. Copyright Infringement
- SJ Motion: IBM

6. Unfair Competition
- SJ Motion: IBM

7. Interference with Contract [with SCO customers/licensees]
- SJ Motion: IBM

8. Interference with Contract [with Novell re: APA]
- SJ Motion: IBM

9. Interference with Business Relationships
- SJ Motion: IBM



IBM CAUSES OF ACTION

1. Breach of contract [including IBM-AT&T and IBM-Sequent Agreements)
- SJ Motion: None

2. Lanham Act Violations
- SJ Motion: SCO

3. Unfair Competition
- SJ Motion: SCO

4. Intentional Interference with Prospective Economic Relations
- SJ Motion: SCO

5. Unfair and Deceptive Trade Practices
- SJ Motion: SCO

6. Breach of GNU General Public License
- SJ Motion: SCO

7. Promissory Estoppel
- SJ Motion: SCO

8. Copyright Infringement [by SCO distributing IBM's Linux contributions on
terms other than the GPL]
- SJ Motions: SCO + IBM

9. Declaratory Judgement of Non-Infringement of Copyrights [AIX and Dynix]
- SJ Motion: None

10. Declaratory Judgement of Non-Infringement of Copyrights [IBM's Linux
Activities]
- SJ Motion: IBM

14. Declaratory Judgement [grab bag of issues generally summarizing other
issues
of the case]
- SJ Motion: None


(Causes of Action 11, 12 and 13, all for Patent Infringement, are already
dismissed)




Quatermass
IANAL IMHO etc


[ Reply to This | # ]

Who filed the five conventionally filed documents?
Authored by: lordshipmayhem on Tuesday, September 26 2006 @ 01:06 PM EDT
I've lost track...

[ Reply to This | # ]

How long before we see a ruling?
Authored by: dwheeler on Tuesday, September 26 2006 @ 01:11 PM EDT
How long before we'll probably see rulings on these PSJ requests? I suspect
that judges can take a long time - maybe "as much time as they need" - but I
would expect that these would have to be addressed BEFORE a trial occurs.
What's the likely completion time? Is there a deadline?

[ Reply to This | # ]

The Motions for Summary Judgment, Etc.
Authored by: long_hair_smelly on Tuesday, September 26 2006 @ 01:19 PM EDT
I like 784:

Despite its public claims, The SCO Group, Inc. (“SCO”) has failed to identify any code allegedly owned by SCO and copied by IBM into Linux. By contrast, undisputed facts establish that SCO has literally copied, without alteration, hundreds of thousands of lines of code developed and copyrighted by IBM. And SCO has done so for profit, without any license to do so. While the measure of damages is not amenable to summary determination, the Court can and should enter judgment that SCO is liable for copyright infringement on IBM’s Eighth Counterclaim, and should enjoin SCO from any further infringement of IBM’s copyrights.

[ Reply to This | # ]

So what sort of process can we expect here
Authored by: Anonymous on Tuesday, September 26 2006 @ 01:19 PM EDT
I am presuming the process below.

1) court accepts motions
2) opposing side briefs
3) rebuttal
4) oral arguments
5) final ruling

And this is on all of them.

SCO might try to ask for an extension in filling some of response briefs due to
the number of motions before them. IBM might accept as IBM will be responging in
turn as well.

[ Reply to This | # ]

SCO's Memorandum on IBM's 6-7-8th counterclaims and the GPLv3
Authored by: Anonymous on Tuesday, September 26 2006 @ 01:21 PM EDT
If one accepts everything they say in their memorandum. There is certainly a
problem that needs to be by the GPLv3..

[ Reply to This | # ]

In Living Color....
Authored by: Anonymous on Tuesday, September 26 2006 @ 01:28 PM EDT
All I can think of, is the Funky Finger Production character in the comedy
series "In Living Color".

" B A M !"

These documents are so sweet. Direct and succinct. Its a shame we had to wait
years to get to this point. But what a lesson we've had. Thanks IBM.

[ Reply to This | # ]

SCO's memo in support re IBM counterclaims 6-8
Authored by: Anonymous on Tuesday, September 26 2006 @ 01:46 PM EDT
Even after years of reading SCO's "arguments", this one left me
slack-jawed.

Apparently, "it is undisputed" that SCO never violated the GPL.

That SCOSource initiative? That was just "licensing UNIX" - nothing
to do with Linux at all.

Oh yeah, "SCO removed all Linux-related code from its website promptly
after expiration of the last of its contractual commitments, on December 31,
2004."

I will no longer be content if SCO partners and lawyers have their assets
impounded. This is too blatant for anything less than jail time.

[ Reply to This | # ]

Novell forgotten?
Authored by: ctrawick on Tuesday, September 26 2006 @ 01:47 PM EDT
Neither 780 nor 781 mention Novell's waiver of termination. It seems a rather
glaring oversight in a summary judgement motion. You'd usually want to put all
your arguments on the table at once, especially those that allow judgement with
all claims assumed true, right? (assuming that IBM breached the contract,
Novell waived the breach anyway so there's no dispute) Isn't that how summary
judgements work?

Is that something that could be claimed in the supporting memo but not the
motion?

[ Reply to This | # ]

Ahhh! Filings! FIIILINGS!!
Authored by: Anonymous on Tuesday, September 26 2006 @ 02:08 PM EDT
Wonderful! So many filings at once. I hope there are some overlength ones too in
there!

Filings! FIIILINGS!! Pardon me while I'm off and reading.

My name is anonymous and I'm a grokholic.

[ Reply to This | # ]

Attacking the GPL
Authored by: Anonymous on Tuesday, September 26 2006 @ 02:09 PM EDT
In SCO's motion for summary judgement, SCO makes the following argument:

* because requiring $0 licensing cost may be price fixing in "some countries"

* price fixing is illegal

* so any contract should be read so it isn't illegal

* therefore SCO is off the hook

Without bothering to make any case that it's illegal in the US (or actually illegal). That's sort of like arguing that A->B, C->D, therefore A->D.

[ Reply to This | # ]

The Motions for Summary Judgment, Etc.
Authored by: cruss on Tuesday, September 26 2006 @ 02:16 PM EDT
from 794 "19. SCO has not attempted to sell a UNIX License to anyone who
received a Linux distribution from SCO."

So can they prove that no one from EV1, Sun, Microsoft, or any of the 1500 other
companies that got a letter ever downloaded Caldera OpenLinux.

---
security is directly proportional to inconvenience
cruss hcity net

[ Reply to This | # ]

Quick observation
Authored by: tangomike on Tuesday, September 26 2006 @ 02:41 PM EDT
There's a remarkable (to me) number of quotes here from TSCOG documents that are
demonstrably false. I've seen these types of statements in the causes of action
as "belief", but they don't seem to have that cover here. I'm
astounded.

---
Deja moo - I've heard that bull before.


[ Reply to This | # ]

OCR Processing complete
Authored by: frith01 on Tuesday, September 26 2006 @ 02:49 PM EDT
I have processed all the documents referenced in this topic through OCR software
to make plain ASCII text , and will email to PJ.



---
Never to Busy to be polite.

[ Reply to This | # ]

Some thoughts on IBM-794
Authored by: Anonymous on Tuesday, September 26 2006 @ 02:53 PM EDT
SCO

"5. Section 0 further states: “This License applies to any program . . .
which contains a notice placed by the copyright holder saying it may be
distributed under the terms of this General Public License.”

It is undisputed that IBM placed such a notice with respect to the code it added
to Linux, and that SCO never placed such a notice on any code in Linux."

GPL

"1. You may copy and distribute verbatim copies of the Program's source
code as you receive it, in any medium, provided that you conspicuously and
appropriately publish on each copy an appropriate copyright notice and
disclaimer of warranty; keep intact all the notices that refer to this License
and to the absence of any warranty; and give any other recipients of the Program
a copy of this License along with the Program."

"4. ... Any attempt otherwise to copy, modify, sublicense or distribute the
Program is void, and will automatically terminate your rights under this
License."

Does this mean SCO distributed Linux (undisputed) and did not include a notice
that this was licenced under the GPL? If so this is clearly a violation of the
GPL and puts SCO into immediate copyright infringment.

++++++++++++++++++++

SCO

"7. Section 1 of the GPL authorizes the general public to copy and
distribute verbatim copies of the source code of the licensed program, subject
to certain notice publication requirements. (GPL § 1.) SCO complied with all of
these requirements in all of its Linux distributions."

GPL

"3. You may copy and distribute the Program (or a work based on it, under
Section 2) in object code or executable form under the terms of Sections 1 and 2
above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code,
which must be distributed under the terms of Sections 1 and 2 above on a medium
customarily used for software interchange;"

SCO's intrepreation is smart here. I think they mean that they were only
required to distribute to thier customers. I think they would pass muster on
this point.

++++++++++++++++++

"8. Section 2 of the GPL states that if a licensee modifies the licensed
work, the modified work must be licensed at no charge. (GPL § 2.) SCO never
modified any of IBM’s contributions to Linux. (Sontag Decl. (Ex. E) ¶ 31.) In
contrast to Section 2 (which authorizes the copying of modified works), Section
1 (which authorizes verbatim copying) does not require no-charge licensing. (GPL
§§ 1-2.)"

GPL section 2

"These requirements apply to the modified work as a whole."

The GPL applies to the work as a whole whether or not it was modified by the
distributor.

++++++++++++++++

"13. Section 4 of the GPL states that a licensee’s use of licensed material
beyond the scope of the License will “automatically terminate” the licensee’s
rights under the License, but it does not say when such a termination becomes
effective, and it provides no mechanism by which the licensee is put on notice
of an alleged unauthorized use of the licensed material. (GPL § 4.)"

This is a 'lawyer only' flaw. It can reasonably be assumed that the user of the
GPL' ed code can read. The infringement starts the moment you fail to comply
with the GPL. The GPL does not require you to be notified of an infringement: if
you are not complying with the GPL you are infringing.

This is simply an attempt to graft a new layer of complexity into the GPL where
none is actually needed. GPL v3 does try to address this point but its a point
Im not sure is needed.

If you can read the licence you can reasonably be expected to know if you are in
compliance or not. If you are not sure you could ask the FSF or your own legal
opinion. You would be better off with the FSF IMHO but each to thier own.

+++++++++++

"16. ... The UNIX License is a license of SCO’s UNIX software, not a
license or sublicense of Linux or of any IBM-copyrighted work."

Interesting. Someone tell Novell this.

+++++++++++++

"24. Prior to the filing of its Counterclaim on August 6, 2003, IBM never
provided SCO with any notice of its claim that SCO’s rights under the GPL had
terminated or that SCO was infringing its copyrights. (Hughes Decl. ¶
12.)"

This is not required under the GPL. This might mitigate the damages on the other
hand.

++++++++++

"SCO’s copying, distribution and sublicensing of Linux – which activity
ended in May 2003 – complied with the terms of the GPL. Section 1 of the GPL
allows licensees to “copy and distribute verbatim copies of the [licensed]
Program’s source code as [the licensee] receive[s] it, in any medium” without
requiring the licensee to grant any rights to third parties."

GPL

"Each time you redistribute the Program (or any work based on the Program),
the recipient automatically receives a license from the original licensor to
copy, distribute or modify the Program subject to these terms and conditions.
You may not impose any further restrictions on the recipients' exercise of the
rights granted herein."

Im afraid that the words of the GPL and SCO's filing dont agree here. Nice try
by SCO.

+++++++++++

SCO

"...nothing in the GPL supports the concept of retroactive
termination."

GPL

"Any attempt otherwise to copy, modify, sublicense or distribute the
Program is void, and will automatically terminate your rights under this
License."

The termination of rights is immediate not retroactive.

++++++++++++

SCO

"Section 4 of the GPL provides that in the event of a licensee’s breach and
termination, sublicenses previously granted by the licensee remain in full force
and effect. Since the GPL effectively ratifies sublicenses granted prior to the
alleged breach, IBM cannot complain that the initial grant was
unauthorized."

Tap dancing here. SCO did have the right to re distribute. They lost those
rights when they imposed the SCO licence on top.

+++++++++++++

SCO

"SCO has not offered a UNIX license to anyone who received Linux from SCO.
There can be no argument that SCO has violated Section 6 of the GPL by imposing
further restrictions on any party to who received Linux from SCO."

How does this fit with the press releases (which we believe
was the real reason for this nonsense)?

+++++++++++

SCO

"[L]inux is an infringing derivative work of SCO’s UNIX System V"

But SCO licenced thier copyrights (if any) under the GPL when they re
distributed Linux. Even if this were a true statement the use cannot be
infringing.

--

MadScientist

[ Reply to This | # ]

Where Do We Go From Here?
Authored by: rsteinmetz70112 on Tuesday, September 26 2006 @ 03:40 PM EDT
Now that we have all of these motions filed. The Next step is the familiar
Filing of the opposition papers.

Once that is done I imagine we will have hearing on these motions.

I wonder if there will be one or more hearings on these motions?

Will Kimball like to see separate hearings.

Some of the motions cover mountains of material which will be complex to argue
and understand.


---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

IBM-792
Authored by: sschlimgen on Tuesday, September 26 2006 @ 03:46 PM EDT
Am I reading this right?

A. MEMORANDUM IN SUPPORT OF SCO’S MOTION FOR PARTIAL SUMMARY
ON IBM’S SECOND, THIRD, FOURTH AND FIFTH COUNTERCLAIMS.
...
13. Open-source leader: SCO suits a boon to Linux
14. How SCO’s Threats Rallied Linux

It looks like part of SCO's argument on why IBM should not prevail on those counterclaims is that the lawsuit HELPED Linux?!?

"I hit you for your own good!"

---
Meandering through life like a drunk on a unicycle.

[ Reply to This | # ]

A question......
Authored by: tiger99 on Tuesday, September 26 2006 @ 03:55 PM EDT
It it possible that this amount of PSJ requests by the SCOundrels is a tactic intended to delay the trial, and extend FUD, possibly because the alleged PIPE Fairy is in trouble with his latest, vey late product?

Maybe I should wear a tinfoil hat all the time, but I have been thinking for a while now that they were building up towards pulling some stunt that would buy lots more time....

Maybe some of the legal experts here may have a more informed opinion of what, if anything, this might do to the trial timescale?

Of course IBM's requests for PSJ were, to me at least (IANAL) a foregone conclusion. I do believe, although have not necessarily understood all the legal terminology, that PJ and others have explained in the past that this is the time in the pre-trial preparations where such things are done, i.e. when sufficient hard facts have emerged to create the environment where requests for PSJ are likely to succeed. But SCO, as always, just seem to be coming up with nonsense.......

[ Reply to This | # ]

The Motions for Summary Judgment, Etc.
Authored by: blacklight on Tuesday, September 26 2006 @ 03:55 PM EDT
My thanks to SCOG for spending a pretty penny to keep us entertained. In terms
of generating losses this quarter, SCOG is off to a roaring start.

---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

Yahoo Groups Comment
Authored by: PM on Tuesday, September 26 2006 @ 04:00 PM EDT
Found this comment by 'backinfullforce' (topic: 'It is now clear...):

"Yes, IBM should really stop writing documents for the purpose of pleasing
and exciting its Groklaw audience. Because it does not impress the rest of
us."

'Rest of us"? - Ralph Yarro, Darl McBride, Jeff Merkey, David Boies, Brent
Hatch (and daddy Hatch), Steve Ballmer, Bill Gates, Gregory Blepp and perhaps
one or two others.

[ Reply to This | # ]

Dan Wallace, Linux Hero
Authored by: rweiler on Tuesday, September 26 2006 @ 04:07 PM EDT
Who'ld athunk that poor, deluded Dan Wallace would actually turn out to be a
heroic defender of Linux? Is it really possibly that SCO was unaware that a
Federal Judge has already ruled that the GPL dioesn't violate anti-trust law,
and that one of the parties in that decision was their good buddy IBM? I guess
SCO s hoping that it does better this time around. Who knows, maybe Kimball will
reach the opposite decision and Wallace will get a chance to argue his case in
the Supreme Court. I'd pay good money to see that.

(OK, it isn't going to happen, but it sure is a fun idea to play with)




---
Sometimes the measured use of force is the only thing that keeps the world from
being ruled by force. -- G. W. Bush

[ Reply to This | # ]

IBM MSJ on SCO's Contract claims
Authored by: webster on Tuesday, September 26 2006 @ 04:13 PM EDT
[These are just notes I took reading the first Motion. I'm going to try and
read the ones that aren't administrative.]

1. They say SCO contract claims arise from SCO's misinterpretation of the
contracts. So their motion should be granted as a matter of law. But IBM also
goes on to say that they didn't offer (specify) any evidence of such a violation
either, neither showing where it's from in SysV, nor where they put it in Linux.
So it also should be granted as a matter of fact. So even if you accept SCO's
interpretation of the contracts (the famous "one sentence"), there are
no instances where any SysV is in Linux.

2. IBM says as a matter of law: 1) the contracts do not forbid them from using
their own home grown code; 2) AT&T said they could; 3) any breaches have
been waived by all parties, successors and SCO included; 4) the passage of time
exceeds the statute of limitations.

3. This motion is strong and presents many high hurdles for SCO. They have the
usual problem of specifiying admissible evidence. SCO has to turn back the
clock and change a lot of history. If they find a witness to contradict the
contracts as interpreted, why did that witness act otherwise for twenty years?
There is a lot Kimball can hang his hat on here and grant it. He can also be
super-cautious and let SCO proceed with a weak scintilla of contestible
evidence, i.e. the "one sentence."

---
webster

[ Reply to This | # ]

IBM-795ExB-pdf Declaratin of Erik Hughes
Authored by: jog on Tuesday, September 26 2006 @ 04:20 PM EDT
For years I have felt (reading between the lines) that
SCOG believed that if no funds changed hands that there
was no "distribution". Mr. Hughes does not say so in an
"honest" manner but he goes to some lengths to rule out
other explanations.
jog

[ Reply to This | # ]

One for the lawyers - the two judges
Authored by: Anonymous on Tuesday, September 26 2006 @ 04:42 PM EDT
The PSJs are before Judge Kimball but what, if any, input will Judge Wells have
on his decision?

It seems to me to be significant because she's got much more direct and personal
experience in judging whether SCO's assertions of "fact" can be
trusted.

[ Reply to This | # ]

The Consulting Times article.
Authored by: Jaywalk on Tuesday, September 26 2006 @ 05:13 PM EDT
In SCO's "Memorandum in Support of SCO's Motion for Relief" (the spoliation thing) they reference a Consu lting Times article where Consulting Times interviews Dan Frye. The full article's at the link, but here's the bit I suspect they're interested in:
Frye: Sometimes we bring technology from IBM -- where there is something missing or we think we have technology that's maybe better than what's out there -- we'll open source technology from one of IBM's software products. ... we didn't move anybody, we didn't co-locate anybody, we wanted skills from across IBM, and we have people from AIX, and OS2, and z/OS, and Websphere, and Tivoli [IBM's Technology Management software], and PTX, and Research, and so on.
SCO has to be hurting if they're hoping to parlay this into a spoliation charge. Most of the items are depositions from IBM employees. I doubt any of them says anything like, "Oh, yeah. We deleted tons of incriminating stuff." More likely, they all say roughly the same thing as Frye -- that IBM drew from other areas to donate to Linux. SCO also references their own complaint, which can safely be ignored regarding any kind of "evidence".

That leaves SCO with one email -- dated 04/08/2003 from R. Swanburg to A. Simon -- to make their case. I'd really like to see what's in that memo, but here's my prediction. SCO's going to say, "These statements [like the one above] prove that IBM copied AIX into Linux, but we couldn't find anything. Therefore, IBM must have destroyed the evidence."

Hey, it's at least as good as the "we know there's evidence, tell IBM to find it" argument they made to Wells.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

Can SCO weasel out?
Authored by: mram on Tuesday, September 26 2006 @ 05:21 PM EDT
I posted this elsewhere in this thread too.
First off, IANAL etc.
This is probably the reason why SCO thinks they have NOT violated the GPL...read on. You can violate GPL ONLY by distributing GPL licensed code (in an inappropriate manner)
So look at the scenario with
  1. two distributors A and B
  2. end users C and D
Distributor A is allowed to charge any amount for the code that A distributes to C (this does not violate GPL). But C is also free to download the source (at a nominal fee) from A and use it (which is the reason that A usually does not charge very high).
Now let us assume that A insists that C should pay a hefty sum (with an accompanying threat of suing C out of existence) to use the code (even if you downloaded the source and compiled and did not require support from A)....Obviously A is violating GPL.
Now consider a scenario where B attempts to extort money from C, for the software distributed under GPL by A. Is B violating GPL? Obviously not. B may violate many other laws / rules - but NOT GPL.
Now B is SCO. Unfortunately SCO (B) distributed Linux to D. But here's the catch - SCO did NOT violate the GPL in regard to the GPLed software SCO distributed to D! Thats the reason that they clearly state that they did NOT charge SCO Linux users.
So in cases where they DID distribute under GPL, they did NOT violate GPL. And for the cases where we claim that SCO violated GPL they did NOT distribute the GPLed code in question in the first place.
The bottom line is that they prefer to be seen as two entities - the first one who distributed Linux but did not violate GPL. According to them the first entity stopped existing the moment they found that Linx violated their IP. The second entity is the one who tried to fleece money for GPLed code - but there is no way that the second entity could violate GPL 'cos they NEVER distributed GPLed code. To be on the safer side the second entity did not demand money from customers to whom the first entity distributed software under GPL.

[ Reply to This | # ]

794: SCO finally admits they filed the wrong suit against the wrong party?
Authored by: Anonymous on Tuesday, September 26 2006 @ 06:13 PM EDT
"16. ... The UNIX License is a license of SCO’s UNIX software, not a
license or sublicense of Linux or of any IBM-copyrighted work."

Ok, so if IBM-copyrighted works aren't at issue, then why are they suing?

They haven't shown any SysV code, and if the AIX/Dynix bits (which are all
copyrighted to IBM) aren't at issue either, then what is this suit about?.

[ Reply to This | # ]

How does the appeal of Wells' ruling fit?
Authored by: Anonymous on Tuesday, September 26 2006 @ 06:36 PM EDT
And, also, how does the motion before Wells about limiting experts' stuff fit?

I'm guessing that Wells and Kimball need to rule on those before they rule on
the summary judgment motions? Is that right?

MSS2

[ Reply to This | # ]

What a relief...
Authored by: Anonymous on Tuesday, September 26 2006 @ 06:41 PM EDT
Even if all the PSJs are not granted, it still looks like this bloated pig of a
case is going to get trimmed down to size. Maybe, just maybe, it will
eventually be about a specific issue after all...

MSS2

[ Reply to This | # ]

SCO's GPL violation is Subtle.
Authored by: arch_dude on Tuesday, September 26 2006 @ 06:53 PM EDT
While the spirit of SCOG's GPL violation via SCOsource is
blatant and
disgusting, the actual letter of the violation is
quite subtle.

SCOG claims that they acted in good faith and promptly quit
distributing to new customers, and that all Linux
distribution after remained in strict compliance with the
letter of the GPL, and SCOsource, since it was not applied
to SCOG's Linux customers, is completely irrelevant to the
GPL.

This would be true if you apply SCOGS strict
interprettation of the letter of each clause of the GPL, if
the SCOsource targets were completely independent of SCOG's
Linux customer base. SCOG tried hard to ensure this
separation by explicitly granting SCOsource "licenses" to
their Linux customers.

This tactic misses one crucial point: SCOsource was a
restriction on SCOG's new Linux customers that effectively
restricted forward distribution of Linux by those
customers.

That is an unequivocal violation of the GPL, and it is
completely independent of any "repudiation" or other
argument.

So:
-- SCOG admits to distribution after announcing SCOsoure
-- Therefore SCOG violated the GPL based on undisputed
fact.

The only argument SCOG can possibly make to refute this is
to claim that SCOsource did not restrict their new
customers from distributing Linux. I think that this
argument is completely indefensible.

The nice thing about this is that it does not depend on any
SCOG actions that occurred prior to SCOsource, nor does it
depend on any vague set of Linux users. SCOG made and sold
specific copies of Linux and sold them to specific users
after imposing restrictions on forward copying that are
explicitly prohibited by the GPL.

[ Reply to This | # ]

Interesting one on the IBM Tenth Counterclaim
Authored by: Pop69 on Tuesday, September 26 2006 @ 06:56 PM EDT
I see a bit on the fourth reason, just near the bottom of page 3 that interests
me greatly.

It starts "None of the System V Code is protectable by Copyright."

Do any of the lawyer types here have any comments to make on this section as it
really jumped out at me.

[ Reply to This | # ]

My dictionary is confused
Authored by: Anonymous on Tuesday, September 26 2006 @ 07:39 PM EDT
It can't grok SCO's defintion of "undisputed".

[ Reply to This | # ]

Tone
Authored by: tangomike on Tuesday, September 26 2006 @ 07:53 PM EDT
In a previous career, taxpayers spent a chunk of change teaching me about 'tone'
in writing. Basically, my choice of words can convey all sorts of unwritten
meaning.

Reading the IBM docs, I'm struck by the change in tone from their previous
submissions. These people are REALLY upset at the whole suit.

Not that I blame them.

I suspect they've taken into account Judge Kimball's phrase "astonishing
lack". Time to go to a Big Box store for a case of popping corn.

---
Deja moo - I've heard that bull before.


[ Reply to This | # ]

  • Tone - Authored by: elrond_2003 on Wednesday, September 27 2006 @ 09:03 AM EDT
My thoughts and questions on 794
Authored by: Anonymous on Tuesday, September 26 2006 @ 08:13 PM EDT
SCO says:
"• Nothing in the GPL prohibits SCO from licensing its UNIX technology; and
"

But Novell says they cannot create new SYSV Licenses without permission. There
is ONLY one way to sell this license, as a SYSV license. They have no permission
from Novell, therefore they are selling something they cannot sell.


"B. SCO’s Licensing of UNIX Did Not Breach the GPL.

Nothing in the GPL prohibits SCO from licensing UNIX. "

The code they want to sell a Unix license for has not been identified. They have
not made any effort (taking the broad assumption that they do own a single line
of code in Linux AND they own the copyrights AND/OR have to right to enforce
them)to have the code they say they own removed from Linux. If my IANAL brain
understands copyright, before they can claim damages of any type they need to
attempt to have the copyrighted material removed. They have not. If my IANAL
brain understands estoppel properly they have known for at least 4 years there
is Unix code in Linux, (see broad assumption above)and have not identified that
code to anyone.
Therefore (see broad assumtption above again) they HAVE accepted that any Unix
code in Linux IS licensed under the GPL because they know and have known that
the code is being distributed in Linux under the GPL.
Am I correct in:
No effort to remove = no attempt at mitigation = estoppel and estoppel = no
case


"Nothing in the GPL warrants
that Linux is beyond the reach of patents, copyrights or other intellectual
property. To the
contrary, Section 7 of the GPL expressly contemplates and warns of that
possibility. Even if a
license to SCO’s UNIX intellectual property were necessary to the use the of
Linux, nothing in
the GPL prohibits SCO from offering such a license. (SCO has not offered a UNIX
license to
anyone who received Linux from SCO. There can be no argument that SCO has
violated Section
6 of the GPL by imposing further restrictions on any party to who received Linux
from SCO.) "

BUT they are attemptiong to add restrictions MY copy of RedHat, copy of Debian,
MY copy of Mandrake. I use Debian, RedHat and Mandrake in a commercial
environment on multiple CPU's. SCO have told me the GPL is not good enough. I
must (according to Darl) license or litagate. I will do neither. Remove your
code through the proper channels, or accept it is released under the GPL.





[ Reply to This | # ]

Question for PJ
Authored by: studog on Tuesday, September 26 2006 @ 08:35 PM EDT
It seems that whenever there is a deadline things are always filed at the last
possible minute. Is it just me? Or is it a tactic?

If it's the latter, perhaps the courts would consider issuing shorter
deadlines.

...Stu

[ Reply to This | # ]

  • Question for PJ - Authored by: Anonymous on Tuesday, September 26 2006 @ 10:20 PM EDT
  • Question for PJ - Authored by: Dave23 on Tuesday, September 26 2006 @ 10:22 PM EDT
  • Question for PJ - Authored by: PJ on Tuesday, September 26 2006 @ 10:37 PM EDT
  • Question for PJ - Authored by: Anonymous on Tuesday, September 26 2006 @ 11:00 PM EDT
  • Question for PJ - Authored by: Anonymous on Wednesday, September 27 2006 @ 12:54 AM EDT
Is there anything that will survive summary judgement?
Authored by: mram on Tuesday, September 26 2006 @ 10:01 PM EDT
If so, which one is most likely?

Obviously I'm referring only to IBM's motions...

[ Reply to This | # ]

The Motions for Summary Judgment, Etc.
Authored by: Steve Martin on Tuesday, September 26 2006 @ 10:22 PM EDT

From "SCO's Memorandum in Support of Its Motion for Summary Judgment on IBM's Sixth, Seventh and Eighth Counterclaims", ¶ 5:

Section 0 further states: “This License applies to any program . . . which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License.” It is undisputed that IBM placed such a notice with respect to the code it added to Linux, and that SCO never placed such a notice on any code in Linux.
(emphasis added)

Oh, really??

Well, looky here. From Linux kernel 2.6.13, file drivers/net/tlan.c:

* Linux ThunderLAN Driver
*
* tlan.c
* by James Banks
*
* (C) 1997-1998 Caldera, Inc.
* (C) 1998 James Banks
* (C) 1999-2001 Torben Mathiasen
* (C) 2002 Samuel Chessman
*
* This software may be used and distributed according to the terms
* of the GNU General Public License, incorporated herein by reference.

Look really closely. Doesn't that say "(C) 1997-1998 Caldera, Inc."? And what's that a little further down? I believe it's a notice of permission to distribute under the GPL. How about that?

(Yes, I know... this is hardly earth-shattering, but if they can be so easily caught in this one little lie, it makes me think of what else might not be quite "the truth and nothing but the truth".

Or am I just getting cynical in my old age?)

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

IBM-781
Authored by: ansible on Tuesday, September 26 2006 @ 10:54 PM EDT

I found this interesting. Apparently, SCOX didn't ever bother to enter into the record any evidence that IBM has been selling AIX after having it's license "revoked" by SCOX.

So all SCOX would have had to do to avoid this argument is to submit as evidence a copy of someone's sales contract for a copy of AIX dated after 2003.

But they didn't even bother to do that. Oops. What sloppy lawyering.

[ Reply to This | # ]

  • IBM-781 - Authored by: Anonymous on Tuesday, September 26 2006 @ 11:51 PM EDT
Repudiated
Authored by: chad on Tuesday, September 26 2006 @ 11:06 PM EDT
"SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws." --Darl McBride, Dec 4, 2003

"SCO never repudiated the GPL, and it always endeavored to comply with its GPL obligations. (Hughes Decl. ¶ 9; Hughes Dep. (3/2/06) at 200-01; Sontag Dep. (5/12/04) at 211.)" --Memorandum in Support of its Motion for Partial Summary Judgment on IBM’s Sixth, Seventh and Eighth Counterclaims

Do you think the word repudiated is in Brent Hatch's dictionary? It may mean something other than what he thinks.

[ Reply to This | # ]

The Motions for Summary Judgment, Etc.
Authored by: Bill The Cat on Tuesday, September 26 2006 @ 11:16 PM EDT
PJ, correct me if I'm wrong here...

Isn't it normal practice in a case to always ask that the case be tossed and for
summary judgements? You won't get them if you don't try. Now, I'm not used to
encountering this volume of them all at once but on other cases I follow (AMD v
Intel, etc.) there are generally summary judgement motions so, I would expect to
see these.

What I don't understand is how some of these from SCOG can make a motion request
based on evidence that never (at least to our eyes) was produced in discovery.
How can SCOG say anything regarding Unix IP put into Linux when they couldn't
produce one line of code during discovery?

In your professional paralegal opinion, how will this play out to the court?

Thanks!

---
Bill Catz

[ Reply to This | # ]

Bummer!
Authored by: GLJason on Tuesday, September 26 2006 @ 11:53 PM EDT
I am overly anxious to read the memorandums supporting these motions, but they
were filed conventionally and under seal. Any idea on a timeframe for the
redacted versions to be posted? Hadn't IBM filed redacted versions of some
motions at the same time they filed the original motions? I wonder if the sheer
volume and short time span to complete the work has kept them from worrying
about it. I bet there's some employees of IBM's law firms that are due a
serious break...

[ Reply to This | # ]

  • Bummer! - Authored by: PJ on Wednesday, September 27 2006 @ 12:34 AM EDT
Crazy?
Authored by: GLJason on Wednesday, September 27 2006 @ 12:20 AM EDT
They still mention (when talking about their IP license for Linux in
IBM-795ExB.pdf) that "SCO determined to offer this licese only becasue IBM
had misappropriated SCO's proprietary code and contributed hundreds of thousands
of lines of that code to Linux."

Won't the judges be furious reading that seeing as SCO has yet to link actual
SVRX code to Linux in any of the cases? All they have shown were links from
SVRX to AIX or Dynix, and links from AIX or Dynix to Linux, I don't believe they
have ever showed "hundreds of thousands of lines" of code from SVRX to
Linux. Are they now claiming that IBM's own homegrown code is "SCO's
proprietary code" that IBM had "misappropriated".

Are they claiming total ownership of AIX and Dynix, are they redefining the term
"proprietary", or did they mean to say "IBM's proprietary
code"?

[ Reply to This | # ]

  • Crazy? - Authored by: JamesK on Wednesday, September 27 2006 @ 07:10 PM EDT
Roger that!
Authored by: XORisOK on Wednesday, September 27 2006 @ 01:21 AM EDT
I have SuSe 9 PRO and RH 7.3 (Of course I would have to kick the Vista build off
of my other machine :) Give me a command line for GREP DIF, or whatever.

---
Cogito Ergo ZOOM - "I think, Therefore I drive fast!"

[ Reply to This | # ]

Lies and D@mn lies!
Authored by: Just_Bri_Thanks on Wednesday, September 27 2006 @ 01:40 AM EDT
Perhaps sooner or later SCOG will get around to the statistics?*



*With appologies to whoever Mr. Twain got that quote from.

---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.

[ Reply to This | # ]

The Motions for Summary Judgment, Etc.
Authored by: Anonymous on Wednesday, September 27 2006 @ 12:41 PM EDT
One more very minor tidbit: I know they had boot floppy images up on the FTP
site for a long time after they supposedly removed all Linux. Hidden inside a
boot floppy image is a tiny kernel in binary-only form, no source.

[ Reply to This | # ]

Hmm, IBM may need to amend one of their motions....
Authored by: 1N8 M4L1C3 on Wednesday, September 27 2006 @ 09:25 PM EDT
I can see one amended motion coming up....

Reference: IBM’S MOTION FOR SUMMARY JUDGMENT ON SCO’S COPYRIGHT CLAIM (SCO’S FIFTH CAUSE OF ACTION)

Page 2:

Second, even if SCO could establish a material breach of contract by IBM, SCO’s infringement claim fails because SCO cannot show that it properly terminated IBM’s license to market and distribute AIX based on the alleged breach. IBM has a perpetual and irrevocable license to AIX that cannot be terminated under any circumstances.

I submit the statement:

"IBM has a perpetual and irrevocable license to AIX..."

Given that IBM owns AIX itself, shouldn't the statement read:

"IBM has a perpetual and irrevocable license to the UNIX code embedded within AIX..."

...for your consideration.

m.

---
On the 7th day, Linus saw that which he created and it was good... ...on the 8th day SCO litigated.

[ Reply to This | # ]

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