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IBM's Recent Addenda -- The Rest Of The Story |
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Saturday, March 17 2007 @ 06:50 AM EDT
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We recently posted some new redacted filings by IBM regarding the recently heard summary judgment motions. What we have not seen until now is some of the addenda that went along with those filings.
Here's a table of the addenda to the recent filings, with the relevant filing indicated along with links to the PDFs and titles of each Addendum.
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Filing | Addendum | Addendum Title |
IBM's Reply Memorandum in Further Support of Its Motion for Summary Judgment on SCO's Copyright Claim (SCO's Fifth Cause of Action) (Docket 977) | Addendum A | IBM's Undisputed Facts: SCO's Copyright Infringement Claim |
Addendum B | IBM's Objections to SCO's Alleged Evidence |
IBM's Reply Memorandum in Further Support of its Motion for Summary Judgment on SCO's Interference Claims (SCO's Seventh, Eighth, and Ninth Causes of Action) (Docket 979) | Addendum A | IBM's Undisputed Facts: SCO's Tortious Interference Claims |
Addendum B | IBM's Objections to SCO's Alleged Evidence |
IBM's Reply Memorandum in Further Support of its Motion for Summary Judgment on its Claim for Copyright Infringement (IBM's Eighth Counterclaim) (Docket 980) | Addendum A | IBM's Undisputed Facts Material to its Eighth Counterclaim for Copyright Infingement |
Addendum B | IBM's Objections to SCO's Alleged Evidence |
IBM's Reply Memorandum in Further Support of its Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action) (Docket 981) | Addendum A1 | IBM's Undisputed Facts: SCO's Breach of Contract Claims (Part 1) |
Addendum A2 | (Part 2) |
Addendum B | IBM's Objections to SCO's Alleged Evidence |
Addendum C | Irrelevance of SCO's Declarants |
Addendum D | Selected Testimony of Involved Persons |
Addendum E | An Illustration of the Absurdity of SCO's Claim |
Addendum H | Analysis of SCO's Assertions Regarding UNIX Licensees' Disclosure of Homegrown Material |
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Authored by: tiger99 on Saturday, March 17 2007 @ 06:56 AM EDT |
If needed. [ Reply to This | # ]
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Authored by: tiger99 on Saturday, March 17 2007 @ 07:00 AM EDT |
Please do remember to make clickable links where possible. PJ, please go back
to bed and get some more rest. You seem to be getting into bad habits again,
working too hard at all times of the day or night, and we don't want to become
ill again. [ Reply to This | # ]
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Authored by: hardmath on Saturday, March 17 2007 @ 08:01 AM EDT |
Recent comments on Groklaw have linked to a ZDNet column by Paul Murphy, which I
shall not relink here (Google News is among your friends, keywords: SCO IBM
contracts).
Central to his article is the notion that IBM and SCO have finally made crystal
clear ("clarity as push approaches shove") that the crux of this case
is contract claims.
While it's of course dubious that SCO deserves credit for making anything clear
without being led to that fate in extrema, we should give Paul credit for having
spotted the golden nugget of truth in recent filings.
Where he loses it is by espousing this is somehow a good thing for SCO and, by
inference, for his stated belief in SCO's "strong case". It is not,
as IBM argues.
SCO's plethora of add-on claims, e.g. for tortious interference, are barred by
long legal precedent from independent assertion where required elements are
missing.
What else in this picture is bad for SCO? In a word, poof. IBM points out that
the essential claims of contract breach are untimely, waived, estopped, etc.
SCO doesn't deserve the opportunity to resurrect complaints that really are
contract claims in such various guises as might help to evade the narrow
construction that contract law affords.
So Paul Murphy's basic point is spot on: contracts, contracts, contracts. Why
he thinks this development is beneficial to SCO remains a mystery.
regards, hm
---
"It's time to get it on!" -- Darl McBride (March 1, 2007),
arguing that SCO's investment in litigation means
their stock is undervalued in the market[ Reply to This | # ]
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- "I'm Chevy Chase, and you're not." - Authored by: TheBlueSkyRanger on Saturday, March 17 2007 @ 08:46 AM EDT
- "I'm Chevy Chase, and you're not." - Authored by: Glenn on Saturday, March 17 2007 @ 09:05 AM EDT
- "John Carroll has delivered his opinion on ZDNet since the last millennium...." - Authored by: Brian S. on Saturday, March 17 2007 @ 09:12 AM EDT
- ZDNet and bias -- people are surprised? - Authored by: ansak on Saturday, March 17 2007 @ 09:30 AM EDT
- Ouch - Authored by: Anonymous on Monday, March 19 2007 @ 12:27 PM EDT
- "I'm Chevy Chase, and you're not." - Authored by: digger53 on Saturday, March 17 2007 @ 09:32 AM EDT
- "I'm Chevy Chase, and you're not." - Authored by: nerd6 on Saturday, March 17 2007 @ 09:11 PM EDT
- These are all ZDNet Bloggers... - Authored by: NetArch on Monday, March 19 2007 @ 02:35 PM EDT
- He's been working on SOMETHING since at least December 2004. - Authored by: Brian S. on Saturday, March 17 2007 @ 08:58 AM EDT
- I tell you why? - Authored by: Anonymous on Saturday, March 17 2007 @ 12:24 PM EDT
- Sorry, even right, he's still wrong - Authored by: Anonymous on Sunday, March 18 2007 @ 06:03 PM EDT
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Authored by: papafox on Saturday, March 17 2007 @ 09:28 AM EDT |
Regarding IBM Ex. 560 Exhibits from a book titled AIX Operating System:
Programming Tools and Interfaces, published by IBM in
1989:
SCO
Rochkind ¶9
“[IBM] Ex.
560 reproduces pages from an IBM programmer’s manual of the sort which is
normally distributed to purchases of an operating system. It contains no
indication that it was ever published, or otherwise made available to the
public…”
IBM
“IBM
Ex. 560 contains a stamp at the top of the second page stating ‘CORNELL
UNIVERSITY LIBRARY’ which indicates the document is publicly
available…”
Hey, BS&F can you spell
‘impeached’? Was this let through because of sloppy work, or maybe
BS&F just don't care any more? [ Reply to This | # ]
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Authored by: sproggit on Saturday, March 17 2007 @ 09:34 AM EDT |
If you have the time to look at just one of the above attachments, then treat
yourself to Addendum E.
In this 2-page filing IBM does a wonderful job of making two points crystal
clear. The first is to underline that The SCO Group have now stopped short of
accusing IBM of directly copying copyright Unix System V source code into Linux.
Instead they continue to stick to the bizarre "poisoned code" theory.
The use of two illustrations is very telling, but perhaps for several reasons.
Firstly, it is going to cement in Judge Kimball's mind exactly what is going on
here, and exactly what Smoke-And-Mirrors game BSF/TSG are trying to pull.
But at the same time, I think IBM are telegraphing something else to Judge
Kimball. They are saying, "If you really feel you have to put us in front
of a jury for this nonsense, here's just one snipped of the way that we're going
to fight our case. Are you really sure that you want to?"
A while back, AllParadox [come back, we miss you] wrote an article in which he
gave his analysis of the Court's decisions up to that point in time, and wrote
of the way that a Judge can help to move a case along through the judicial
system. At the time AllParadox was convinced that Judge Kimball was sceptical of
TSGs claims [and AP has been proven 100% right on that score...].
I get the impression that we're seeing something very similar in play at the
moment. Judge Kimball has been very careful to permit both sides to set out
their arguments in full. The Court has been lenient with extensions and giving
parties more than enough time to make their case.
But in the transcript from these recent filings, two tiny points stand out by a
country mile. The first comes when he admonishes Counsel for TSG with
"Don't ever interrupt me when..." Though we can never infer tone from
typed words, I don't suppose this was said in anger, but it does speak volumes.
Compare BSF's approach to the Court with the careful and polite deference shown
by CSM's Team.
The second comes during exchanges between [I think] Mr Marriott and the Court,
where Marriott is in the middle of an explanation and Judge Kimball interrupts
him with little, clarifying questions. He makes the distinction between Santa
Cruz and SCO, or shows that he understands how the position dictates the nature
of the claims that can be made.
It's not merely the fact that the Court's question reveal that Judge Kimball
understands *_exactly_* what is going on here, but also the way in which the
exchanges happen. I think congenial might be a good description in this case.
It is - clearly - too early to say whether or not Judge Kimball agrees with IBM
that these points can be ruled as Summary Judgements or PSJs, but what is clear
is that he has been doing his homework and is right on top of all the facts at
dispute.
AllParadox, if you're still out there, is there any chance you'd consider
another "interpretation" of the present state of play for us please?
I'm pretty sure that it would be very widely appreciated. [ Reply to This | # ]
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Authored by: fudnutz on Saturday, March 17 2007 @ 12:09 PM EDT |
The original is on a 5' by 7' card.
SCO will convert this exhibit to their purposes. It explains their position
better than they could for the past four years. It is IBM who has delayed in
preparing and then disclosing this.
It will become Exhibit A for SCO. With it SCO can now finally be compensated
for the losses and injustice they have suffered at the be-juiced hands of IBM
and the Blackberry folk. Add to that the VOIP exploitations if they use TCP/IP,
too. The Internet itself.....
What is so absurd? It is a contract entered in by both sides. If the fruits of
the contract ripen into unforeseen and profitable areas, aren't the parties
still allowed to benefit from the contract?
Consider the man who invented the first wheel for a wheelbarrow --{or was it a
unicycle?}. Just because someone thinks of using it with another wheel and an
axle and putting it on a Lotus doesn't mean he shouldn't get credit --and be
duly compensated for, the wheel.
Be reasonable. Give SCO their due. They are perfectly willing to settle.
[ Reply to This | # ]
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Authored by: mossc on Saturday, March 17 2007 @ 12:15 PM EDT |
An interesting point, if TSGs claims re: contract were correct the statement
about having paid $130 million for UNIX having to include copyrights would
dispute the claim that they have rights on everything ever having touched SYS V.
That would be worth a lot more than $130 million.[ Reply to This | # ]
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Authored by: alisonken1 on Saturday, March 17 2007 @ 01:05 PM EDT |
... has an article posted which puts Groklaw promiently in the
spotlight.
Title of the article is "Only 326
lines of code said to be at issue in SCO-IBM flap."
It's prominently
posted as one of the top 3 stories (as of 17Mar) at the top of the page.
The
blurb on the homepage is a good one:
"'Mountain' turns out to be
flat"
--- - Ken -
import std_disclaimer.py
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993
http://www.slackware.com
http://www.mutagenix.org
[ Reply to This | # ]
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Authored by: grouch on Saturday, March 17 2007 @ 09:59 PM EDT |
I've downloaded all of the "Addendum" PDFs, but don't know who is working on
transcribing nor which ones have been sent or are being worked
on.
--- -- grouch
http://edge-op.org/links1.html
[ Reply to This | # ]
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Authored by: dwandre on Sunday, March 18 2007 @ 03:42 AM EDT |
I looked it up (probably been done before but here it is): a
rule of document interpretation: parol evidence offered to contradict or modify
a writing (as a contract or will) is not admissible when the writing is
unambiguous or was intended to be a final expression of the author's
wishes from "parol evidence rule." Merriam-Webster's Dictionary of
Law. Merriam-Webster, Inc. 18 Mar. 2007. <Dictionary.com http://dictionary.reference.com/browse/parol evidence rule>. So
it all boils down to those 14 words in paragraph 2.01 of SOFTWARE LICENSE that
IBM mentions in its PSJ motion on contract claims, which is a pretty tenuous
argument for SCO to hang it's case on.
I can't see how SCO can win this one.[ Reply to This | # ]
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