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Report from the Courthouse March 7 - Part 1 (IBM's Motion for DJ on 10th CC)
Thursday, March 08 2007 @ 02:22 AM EST

Here we go, Chris Brown's report from the courthouse on yesterday's arguments on the remaining summary judgment motions in SCO v. IBM. Actually, this is Part 1, covering the arguments made on IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (IBM's 10th Counterclaim) [PDF]. More is on the way on the other motions argued after this one.

Apparently, SCO still doesn't comprehend the GPL, not to mention some tech issues, like what Linux needs to run. The report indicates they still don't get it that if you redistribute code under the GPL, you have accepted the GPL and are distributing under that license, whether you are the copyright holder or not.

Once again, here is Groklaw's summary judgment chart, so you can follow along and here's IBM's Memorandum in Support, Part A and Part B [PDF] of this motion, if you wish to compare or flesh out the arguments.

Here is Chris Brown's report:

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

The first motion to be heard today was IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (IBM's 10th Counterclaim). Of the three hours for today's hearing, each side was allocated 45 minutes each on this motion.

David Marriott argued for IBM and opened with: After promoting Linux for nearly a decade, SCO underwent a change in management and undertook a series of legal attacks against it, and despite inducing thousands to use it, it threatened users of Linux with infringement, including IBM. To put an end to the FUD, IBM asked this court to declare that IBM does not infringe the copyrights of SCO.

SCO for years has said it controlled over 1 million lines of code in the Linux kernel, but at the end of the day it identifies only 326 lines, representing 1/5000th percent of the kernel or equivalent to 1 spectator out of 20,000 in an arena like the former "Delta Center." (Utah Jazz's home-court, now "Energy Solutions Arena")

IBM had a largish chart set up titled "The 326 Lines At Issue" displaying, presumably, 326 color-coded lines of "code". The legend indicated that yellow lines were comments, green were #defines, red were structure declarations, and blue being function prototypes. Mr. Marriott referred to this chart saying that many of these lines are comments rather than software code. That eleven out of twelve files are header files. The code consists of #define statements (shorthands or abbreviations), structure declarations (collection of related data values) comprising 164 lines out of 326.

He pointed to the first line on the chart as an example and read "#define EPERM 1". He likens this to the shorthand for the 10th Circuit Court as 10 Cir. He says that 12 out of 326 lines are function prototypes, likening it to the search function on WestLaw allowing one to enter the search terms, and it returns the results.

It's SCO's burden to show IBM's copyright infringement, he argued, and cited three reasons summary judgment should be granted to IBM: 1) Despite court orders, SCO provided no information in its final disclosures. 2) Any copyrights to the Unix code are held by Novell, not SCO. 3) Any rights SCO has, it has assigned to United Linux. He says that he will skip item number two for another day.

On the first item, Judge Wells and this court ordered SCO to disclose infringed code. But neither in response to interrogatories or in it's final disclosures was it it specified.

On the third item, SCO transferred any copyrights it had to UnitedLinux. SCO's Linux 4.0 is based upon UnitedLinux 1.0. SCO Linux 4.0 included these 326 lines of code and was released under the GPL.

IBM has multiple licenses to the code at issue. IBM has multiple licenses to the code, but he will focus on the two broadest licenses which both cover all 326 lines of code. The first is the Strategic Business Agreement between IBM and Caldera granting IBM the right to distribute and develop derivatives of the code. The second is the General Public License (GPL).

In the Strategic Business Agreement, Caldera warranted the code (Linux) does not infringe the intellectual property rights of any third party. At the time this agreement was made, Santa Cruz was a third party.

It is not disputed by SCO that their Linux products were distributed under the GPL. SCO is estopped from pursuing these claims. Caldera was founded as a Linux company. For nearly a decade SCO distributed, and encouraged others to distribute, Linux. SCO's employees testified that the allegedly infringed code was in SCO Linux.

He cited Caldera's awards for their Linux distribution. He pointed out that Caldera was the first signed of the Linux Standard Base. The code at issue here was required for the Linux Standard Base. Santa Cruz hosted, and Caldera participated in, a meeting to establish 86Open and pushed for the adoption of ELF, a standard that IBM is charged with infringing.

In the Strategic Business Agreement Caldera's warranty promised to hold IBM harmless for any third party infringement.

SCO cannot establish substantial similarity between Unix and Linux.

IBM stated (in its motion) five reasons the code is not copyrightable, two of which SCO's expert failed to respond to and therefore IBM submits it is admitted -- programming practice and externalities -- and for those reasons alone, IBM is entitled to summary judgment. Regarding misuse: SCO has misused its copyrights. SCO has claimed ownership over one million lines of code, far beyond the 326, including claiming ownership over code undisputedly owned by others such as JFS and BSD code.

SCO's turn:

Mr. Singer argued for SCO and opened saying that this is a claim by one of the world's biggest enforcers of intellectual property rights, making over one billion dollars per year for IP rights, and it seeks a declaration conversely that SCO has no rights.

IBM's tenth counterclaim (page 171 in particular) reads: "Activities related to Linux..." Today IBM seeks a declaration regarding the the kernel. They do so to limit the supposed infringement to only 326 lines of code.

Kimball asks hypothetically if he sustains Judge Well's orders how it would affect this issue. Singer replies that the materials remain in the case.

Mr. Singer states that the code is not trivial. Mr. Singer then erroneously, in this reporter's opinion, claimed Linux won't work without Streams, Linux won't work without ELF, Linux won't work without these header files.

He said that since this is IBM's motion, under 10th Circuit law IBM bears the burden of proof on a declaration of non-infringement.

Regarding who owns the copyrights, he said SCO believe it is clear the copyrights were transferred from Novell to Santa Cruz and then to SCO. The only reason there could be any question at all is through a table of "excluded works" which identifies any copyrights or trademarks. SCO's position is that this was an error, and the amendment clarified what was covered.

Mr. Singer claimed that Mr. Marriott doesn't want to argue extrinsic evidence, but individuals on both sides state it was the intent to transfer copyrights.

IBM asserts that SCO transferred copyrights to UnitedLinux. This issue is before European arbitration, and here comes IBM asking your honor to issue judgment on this issue as a matter of summary judgment.

The Joint Venture Agreement says that the rights are only to those as a result of the joint venture, not preexisting technology, he further argued.

Regarding infringement, at an earlier hearing IBM stated that there is no dispute IBM copied and distributed Linux. Therefore if Linux infringes Unix, then IBM infringes. There was also non-literal infringement. Experts need to do the [abstraction-filtration-comparison] test. IBM's experts did not do this.

Regarding protectable expression, Professor Cargill looked at this and determined this is protectable. In the Gates Rubber case, IBM submitted an amicus brief claiming that code is generally protectable. These issues need to be decided at trial including substantial similarity.

The real issue is qualitative rather than quantitative. He cited cases where a small percentage of words or code were deemed substantial.

If these licenses (that IBM identified) apply, then why didn't IBM come before the court with them in 2003, he asked? Why did they wait until their summary judgment motion to bring them up? SCO asserts it is because they don't apply.

He said that IBM states that the work was distributed under the GPL. The GPL requires that the copyright holder knowingly and willingly state the work is distributed under the GPL and place a notice to that effect in each file. SCO never did that. The kernel includes no notices attributing rights to Caldera or Santa Cruz.

Under equitable defenses, IBM is the last party that should come before this court asserting equitable estoppal. Maybe it's an argument for the man on the street might make, he said; it's not one that IBM should assert.

IBM is jumbling together acts made by Caldera and acts taken by SCO. He put up an equitable estoppel timeline chart (not visible to us). He reminded the judge that it was shown on Monday (we did not see this chart Monday, so I assume it was used while the courtroom was closed). He said that the copyrights were owned by Santa Cruz. Santa Cruz was not in the Linux business when IBM set up the Linux Technology Center and contributed the code to Linux. Actions made by Caldera, or anyone else that was contributing to Linux, don't matter. They were not the copyright holder.

Equitable estoppel requires reliance upon the actions of the copyright holder. There is no evidence that IBM, when making these contributions, looked to what SCO was doing and made their decisions based on that.

Regarding copyright misuse, this is factual in nature and requires resolution by a finder of fact on those issues. There is a serious issue with regard to the provenance of JFS, he claimed.

IBM responds:

Mr. Marriott responded, although first Judge Kimball pointed out that Mr. Singer disagrees with him about on whom the burden of proof rests. Mr. Marriott stated that he does and that IBM's brief spells out the reasons it is SCO that has the burden of proof. He pointed out there is a difference between an affirmative declaration and a declaration of non-infringement.

SCO contends IBM is using gamesmanship to narrow the issue to just the kernel. In motions made by IBM in clarifying its meaning for the purpose of this counterclaim IBM specifies the kernel.

SCO has failed to explain exactly what it is that IBM has done. They have not specified why "EPERM 1" is infringing. The fact that an error is issued? The spelling of "EPERM"? The number 1? What if it was 6? Is it the two items together? SCO hasn't specified.

SCO claims their distribution of Linux for nearly a decade is without consequences. Regarding estoppel, the law is clear that a party is bound by the conduct of its predecessors.

Mr. Marriott had a chart flipped over to the blank side and began drawing a depiction of a baseball diamond. He numbered the various positions placing the number one on the pitcher's mound, two for the catcher, three at first base, four for second base, five for third base, six for shortstop, with the numbers seven, eight, and nine in outfield. He then stated that the pitcher is number one, the catcher is number two, and first base is number three. He explained that the #defines are equivalent to someone writing PP 1, PC 2, and PFB 3 as a shorthand for such. He claims that there is nothing original or protectable about making such lists of short names and enumerating them. SCO claims that assigning short names with integers is protectable representation.

After Mr. Marriott closed, Judge Kimball called for a ten-minute break.

Next: Motion for Summary Judgment on IBM's Eighth Counterclaim argued in conjunction with SCO's Motion for Summary Judgment on IBM's Sixth, Seventh, and Eighth Counterclaims (784 and 777).


  


Report from the Courthouse March 7 - Part 1 (IBM's Motion for DJ on 10th CC) | 107 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic
Authored by: MDT on Thursday, March 08 2007 @ 02:29 AM EST
Clicky's if ya got 'em!



---
MDT

[ Reply to This | # ]

Corrections
Authored by: MDT on Thursday, March 08 2007 @ 02:30 AM EST
As you need 'em!



---
MDT

[ Reply to This | # ]

And this is a legal argument in what way?
Authored by: MDT on Thursday, March 08 2007 @ 02:50 AM EST
Mr. Singer argued for SCO and opened saying that this is a claim by one of the world's biggest enforcers of intellectual property rights, making over one billion dollars per year for IP rights, and it seeks a declaration conversely that SCO has no rights.

Ok, this is in what way whatsoever a legal argument? It sounds more like a schoolboy arguing with another schoolboy in front of the teacher.

"Ms. Wilson, Scoflaw took my pencil."

"Scoflaw, did you take Ibmy's pencil?"

"But Ms. Wilson, he has tons of them!"

---
MDT

[ Reply to This | # ]

Report from the Courthouse March 7 - Part 1 (IBM's Motion for DJ on 10th CC)
Authored by: Anonymous on Thursday, March 08 2007 @ 02:57 AM EST
"despite inducing thousands to use it, it threatened users of Linux with
infringement, including IBM."

AFAIK SCOX never threatened to sue its customers. Instead it held them harmless
and gave them a proper IP license for the infringing code found in Linux.

[ Reply to This | # ]

IBM is trying to give Linux kernel clear bill of health
Authored by: Anonymous on Thursday, March 08 2007 @ 04:01 AM EST
It's SCO's burden to show IBM's copyright infringement, he argued, and cited three reasons summary judgment should be granted to IBM: 1) Despite court orders, SCO provided no information in its final disclosures. 2) Any copyrights to the Unix code are held by Novell, not SCO. 3) Any rights SCO has, it has assigned to United Linux. He says that he will skip item number two for another day.
Some have questioned whether IBM cares about clearing Linux or whether they just want to win the case. I think David Marriott's decision not to press the "Novell has the copyrights" argument is evidence that IBM wants Linux cleared as far as possible.

[ Reply to This | # ]

Where's the Infringement?
Authored by: Steve Martin on Thursday, March 08 2007 @ 07:24 AM EST

IANAL, but as I understand it, all TSG would have had to do to defeat this counterclaim and summary judgment on same was to present actual evidence of copyright infringment. They didn't do it before (astonishing Judge Kimball in the process), and it appears looking at Chris' argument that they didn't do it now. They do a lot of hand-waiving, pointing at things such as how they are not bound by Caldera's actions (this one beats me), how IBM's claim of privilege under the GPL is not relevant to copyright (huh?), and how even a little bit of code is protectable. I'll grant them the last one, but as PJ would say, "puh-leese". COMMENTS? They're claiming copyright protection and five billion dollars of damages over COMMENTS!?

And oh, yeah --- news flash for The SCO Group; You are the plaintiff. The burden of proof is on you to make your case. You didn't, and IBM is pointing that out. IBM doesn't have to prove that you didn't make your case; it's up to you to prove that you did.

Judge Kimball has shown a grasp of the realities of this case more than once in the past. Let us hope that time has only improved that grasp.

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

[ Reply to This | # ]

Streams, ELF, headers provably not necessary
Authored by: Anonymous on Thursday, March 08 2007 @ 08:10 AM EST
Mr. Singer states that the code is not trivial. Mr. Singer then erroneously, in this reporter's opinion, claimed Linux won't work without Streams, Linux won't work without ELF, Linux won't work without these header files.

These charges are demonstrably wrong. Linux works just fine without any or all three.

  1. Almost nobody uses streams in linux, there is no need. According to reports, you actually get points off for streams (lower performance, less portability) for using streams.
  2. Before the kernel used ELF as the default executable format, it used a.out. Therefore linux has been demonstrated to run without ELF.
  3. The header files are only needed to compile code. They are not used to run code, either the kernel or applicatons. Linux and all its applications run just fine without the header files. In addition to the pedantic argument, rewriting the kernel headers and all programs that use them to use different names (e.g. #define EPERM_SCOE_SUX 101) is a trivial sed script.

[ Reply to This | # ]

Thanks again to Chris
Authored by: DaveJakeman on Thursday, March 08 2007 @ 10:04 AM EST
Great reporting.

---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.

[ Reply to This | # ]

Mr. Singer argued for SCO...
Authored by: Anonymous on Thursday, March 08 2007 @ 10:17 AM EST
"The GPL requires that the copyright holder knowingly and willingly state
the work is distributed under the GPL and place a notice to that effect in each
file. SCO never did that. The kernel includes no notices attributing rights to
Caldera or Santa Cruz."

? H ? U ? H ?

[ Reply to This | # ]

Caldera and SCO in the Linux Kernel
Authored by: gfolkert on Thursday, March 08 2007 @ 11:07 AM EST
Here "caldera" in 2.6.20.
arch/i386/kernel/smpboot.c: * Original development
of Linux SMP code supported by Caldera.
arch/m32r/kernel/smpboot.c: * Original
development of Linux SMP code supported by
Caldera.
arch/x86_64/kernel/smpboot.c: * Original development of Linux SMP code
supported by Caldera.
CREDITS:E: sp@caldera.de
CREDITS:S: Caldera (Deutschland)
GmbH
Documentation/networking/tlan.txt:(C) 1997-1998 Caldera,
Inc.
drivers/char/drm/drm_context.c: * 2001-11-16 Torsten Duwe
<duwe@caldera.de>
drivers/net/slip.c: *
from Jim Freeman's <jfree@caldera.com>
drivers/net/tlan.c: * (C)
1997-1998 Caldera, Inc.
drivers/net/tlan.h: * (C) 1997-1998 Caldera,
Inc.
drivers/scsi/advansys.c: Erik Ratcliffe <erik@caldera.com> has
done testing of the
drivers/scsi/advansys.c: AdvanSys driver in the Caldera
releases.
net/ipx/af_ipx.c: * Portions Copyright (c) 1995 Caldera, Inc.
<greg@caldera.com>
net/ipx/af_ipx.c: * Neither Greg Page nor Caldera,
Inc. admit liability nor provide
sound/oss/nm256_audio.c: * 19-04-2001 Marcus
Meissner <mm@caldera.de>

Here is the sco.com
stuff:
arch/i386/kernel/microcode.c: * 1.0 16 Feb 2000, Tigran Aivazian
<tigran@sco.com>
arch/i386/kernel/microcode.c: * 1.01 18 Feb 2000,
Tigran Aivazian <tigran@sco.com>
arch/i386/kernel/microcode.c: * 1.02
21 Feb 2000, Tigran Aivazian
<tigran@sco.com>
arch/i386/kernel/microcode.c: * 1.03 29 Feb 2000,
Tigran Aivazian <tigran@sco.com>
arch/sh/kernel/kgdb_stub.c: * David
Grothe <dave@gcom.com>, Tigran Aivazian
<tigran@sco.com>,
Documentation/sh/kgdb.txt:Aivazian
<tigran@sco.com>, William Gatliff <bgat@open-widgets.com>,
Ben
drivers/net/tlan.c: * Tigran Aivazian <tigran@sco.com>:
TLan_PciProbe() now uses
include/asm-sh/kgdb.h: * David Grothe
<dave@gcom.com>, Tigran Aivazian, <tigran@sco.com> and[\code]

[ Reply to This | # ]

POSIX, C standards?
Authored by: Anonymous on Thursday, March 08 2007 @ 11:30 AM EST
Does anyone have an idea why IBM didn't bring up the POSIX and C standards,
w.r.t. the standard header files (such as errno.h)?

Most, if not all, of the contents of those files are defined in multiple public
standards, and that makes them clearly not copyrightable.

~ray

[ Reply to This | # ]

How does Judge Kimball keep from laughing?
Authored by: pcoady on Thursday, March 08 2007 @ 11:42 AM EST
This statement from Mr. Singer has to stand as one the funniest yet!
... IBM is jumbling together acts made by Caldera and acts taken by SCO. He put up an equitable estoppel timeline chart (not visible to us). He reminded the judge that it was shown on Monday (we did not see this chart Monday, so I assume it was used while the courtroom was closed). He said that the copyrights were owned by Santa Cruz. Santa Cruz was not in the Linux business when IBM set up the Linux Technology Center and contributed the code to Linux. Actions made by Caldera, or anyone else that was contributing to Linux, don't matter. They were not the copyright holder....

SCOX has often tried to mix Santa Cruz, Caldera, and SCOX to confuse. They have also been each "SCO" in turn as it suited them--but I do not recall them ever claiming to be and have full rights of each in turn in one argument before.

Santa Cruz knew of the IBM Linux actions and did not try to prevent or sue: Estoppel One. Caldera's business was Linux and they didn't sue: Estoppel Two. SCOX is Caldera and they didn't sue in a timely manner: Estoppel Three. SCOX claims to have inherited Santa Cruz's rights: Santa Cruz did not sue in a timely fashion--therefore SCOX may not either: Estoppel Four. SCOX continued to distribute under GPL: Estoppel Five.

How many different ways does one need to set up to lose a single motion?

The truest part of all (and the funniest): "Actions made by Caldera, or anyone else that was contributing to Linux, don't matter. They were not the copyright holder." So true SCOX, and that is why you will lose.

And all this of course is moot if Novell, Santa Cruz(Tarantella), or United Linux hold the valid Unix copyrights in the first place. It is pretty clear that SCOX doesn't have proof of holding any other than to some manuals. Judge Kimball has already noted this absence of proof--even though he allowed discovery to go forward and held PSJ.

IANAL

"To every complex problem there is a simple solution--and it is wrong." HL Menchen

[ Reply to This | # ]

Burden of proof?
Authored by: GLJason on Thursday, March 08 2007 @ 07:02 PM EST
He said that since this is IBM's motion, under 10th Circuit law IBM bears the burden of proof on a declaration of non-infringement.

Isn't this blatantly false? From everything I've read, on a declaration of non-infringement the burden of proof rests on the non-moving party. Because of this, the moving party must establish the likelihood of getting getting sued or disparagement in the marketplace. SCO tried to get the 10th counterclaim thrown out because they didn't want it in the case, but the judge decided to keep it in. I believe it is to be treated the same as if the non-moving party had sued for infringement, so they have the burden of proof. If I had the time, I'd look it up in the motions from 2004, but I think it is telling that the judge pointed out the disagreement himself when it was IBM's rebuttal time.

[ Reply to This | # ]

I was surprised
Authored by: GLJason on Thursday, March 08 2007 @ 07:13 PM EST

I was surprised by the lack of IBM throwing SCO's own words in their face. Maybe it will be in the transcript, but I was hoping to see something like this:

Mr. Marriott: In it's defense against IBM's 8th counterclaim, SCO contends that it has always distributed Linux under the GPL. IBM has received copies of Linux from Caldera and SCO on numerous occasions as late as 2006, thereby obtaining a GPL license to the code from Caldera and SCO after it had purportedly acquired the Unix assets from Santa Cruz. The license it obtained from SCO, which admitted to giving IBM by asserting that it had always distributed Linux under the GPL, prohibits any copyright infringement as IBM has always followed by the GPL and SCO has not even attempted to show otherwise.

[ Reply to This | # ]

And they reload the footgun, then set it to fully automatic
Authored by: Anonymous on Friday, March 09 2007 @ 02:57 PM EST
"Kimball asks hypothetically if he sustains Judge Well's orders how it
would affect this issue. Singer replies that the materials remain in the
case."

Oops, doesn't that effectively destroy their argument in appealling Wells'
ruling that it was dispositive? They've been screaming about how it throws out
all their claims and evidence, yet here we have Singer saying that no, they're
still there.

[ Reply to This | # ]

"The sky is blue"
Authored by: Anonymous on Saturday, March 10 2007 @ 09:13 AM EST
is equivalent to

"#define EPERM 1"

in that both a elementary statements of fact.

Language syntax determines how the statement is formatted.

This case stinks to high heaven.

[ Reply to This | # ]

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