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IBM Goes on the Offensive and Asks for Partial Summary Judgment Now
Thursday, May 20 2004 @ 04:24 PM EDT

IBM has asked the court for partial summary judgment, a declaration that IBM does not infringe SCO's copyrights by its Linux activities, in its Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement, telling the court that since SCO has been unable or unwilling for so long to show any infringing code, and shouldn't be allowed to now, they request the court to wrap this part of the case up and issue a declaration of noninfringement "with respect to IBM's Linux activities (the 'Tenth Counterclaim')." This is a cross motion, not just a motion, because, as you recall, this is the IBM counterclaim that SCO has asked the court to dismiss or stay pending the outcome of the AutoZone case:

"SCO refuses . . . to disclose its purported evidence that IBM's Linux activities infringe SCO's alleged copyrights, despite two court orders requiring it to do so.

"2. IBM asked SCO (more than seven months ago) to identify the precise lines of Linux code in which it claims rights, and the precise lines of code in the UNIX software from which SCO alleges such Linux code is copied or derives. Unless SCO can match up the lines of code in Linux to which it claims rights to the precise lines of code in the UNIX software over which SCO claims copyright protection, SCO cannot show copyright infringement.

"3. Based upon SCO's failure to come forth with evidence to demonstrate infringement, summary judgment should be entered in favor of IBM on its claim that IBM's Linux activities do not infringe SCO's alleged copyrights relating to UNIX."

There is, as always, a Memorandum in Support. If they refuse or are unable to back up their allegations, IBM adds, they can't prove any claim of copyright infringement. There is no need for more discovery on this issue, they argue, because SCO already has had access to all the info it needs to prove its claim "and yet is unable to proffer any evidence of copyright infringement." SCO shouldn't be allowed to adduce evidence now. They ask for a hearing where oral arguments can be heard at the same time that SCO's Motion to Dismiss or Stay is heard.

What do I think it means? I think it means that SCO couldn't find anything significant in its deep dive into the AIX code they whined and whined to get, and IBM knows it.

Also, it is a strategy thing. Even if they don't win their Cross Motion, it places the issue before Kimball. This is not Judge Wells, who is familiar with SCO's ways, and they want to be sure he has the whole picture. Also, he seems to be an upright judge, but what if he were not? You always want to box a judge into a position where he sort of can't ignore your position without looking mighty bad. If Kimball was thinking about granting SCO's motion to dismiss or stay IBM's Counterclaim 10, he will have a harder time doing it now. And don't forget one of SCO's arguments is that this counterclaim should wait, if it isn't dismissed, until AutoZone is decided, because that is the true copyright case, and that argument is currently before Judge Kimball. He can't fail to connect the dots now in the SCO shell game, not that he seems to miss anything anyway, but just in case, IBM spells it out for him. That's why IBM asks that this cross motion be heard as the same time as argument on SCO's motion to dismiss or stay the same counterclaim. I surely want to watch SCO dance as fast as it can at *that* hearing, if Kimball grants IBM's request and hears them both at the same time.

In the Memorandum in Support, IBM says that SCO's claims in the litigation and its public accusations "are part of a broader campaign":

"SCO's scheme is to make sweeping claims of ownership to Linux and to tout the strength of its case against IBM publicly, while at the same time seeking to obfuscate its claims and avoid producing its alleged evidence, so as to defer judicial resolution of the matter for as long as possible."

Mr. Blepp's recent interview in Germany is referenced, about SCO's strategy being "not to be forthcoming with its alleged evidence," and quoting his remark that "you don't put everything on the table at the start, but instead you bring out arguments and evidence piece by piece." And then IBM says this:

"Consistent with its strategy, SCO has yet to identify a single line of code from the UNIX software that IBM is alleged to have misused in violation of any of SCO's 'UNIX intellectual property rights', despite two orders by Magistrate Judge Wells requiring SCO to do so. When pressed to identify specific code in the UNIX software that contained the trade secrets IBM allegedly misappropriated, SCO delayed for months in coming forward with the information, and ultimately withdrew its claim altogether. Similarly, with respect to SCO's contract claims, despite months of delay SCO still has not identified the specific code contained in UNIX System V that IBM allegedly misused in violation of its licenses to that software.

"Of particular relevance to this motion, SCO has also failed to adduce any evidence of copyright infringement by IBM. . . . Although SCO has identified certain materials in Linux to which it claims rights (albeit without the required specificity), SCO fails altogether to show how IBM's Linux activities infringe SCO's alleged copyrights concerning UNIX software. Again, SCO has not ever linked (and cannot link) the material in Linux to which it claims rights to specific lines of the UNIX software over which SCO claims copyright protection and that IBM can be shown to infringe."

SCO tried to point to 160 lines of SGI code once, IBM adds in a footnote, but that code was removed from Linux and SCO has never explained how IBM (or anybody else, for that matter) has infringed any of SCO's purported rights with this code. No discovery was ever needed to decide this matter. SCO has had all the evidence it needs to prove infringement since before it filed, the source code to which SCO claims to hold copyrights and Linux, which is publicly available. Yet it "has been unable to proffer the evidence of copyright infringement..." For that reason, under Rule 37(b)(2) , they should not even be allowed to adduce evidence on this issue.

In footnote 4, IBM tells the court that it "believes . . . that SCO's contract claims are also susceptible to summary adjudication and intends to move for summary judgment on those claims at an appropriate time." SCO claims to have evidence in support of its claims, but it "refused to disclose all of that evidence to IBM":

"In fact, SCO seeks to dismiss or stay IBM's claim for a declaration of non-infringement on the theory that, while the future of the global economy may hang in the balance, the issue of IBM's copyright infringement should be decided not in this case involving IBM, but in the case SCO just filed against AutoZone, Inc., an auto parts company that has had little, if anything, to do with the development of Linux."

Yes, lawyers have a sense of humor too. They are definitely having some fun. Happily, Judge Kimball has given evidence of possessing a similar refreshing sense of humor.

IBM also filed their Memorandum in Opposition to SCO's Motion to Dismiss or Stay Count Ten of IBM's 2nd Amended Counterclaims. We've been publicly accused of copyright infringement by SCO for over a year, IBM tells Kimball. What a waste of resources if we have to now freeze in our tracks until AutoZone is decided, which hasn't even begun discovery and has asked for a delay until we are done here and Novell's matter is finished too. We're ready for a decision now on this counterclaim. Discovery on this counterclaim is done. And besides, SCO's accusations have been against IBM and others, and it wouldn't be just to make everyone wait. SCO is playing a shell game, IBM says, trying to avoid judicial review of this claim, part of its campaign of sowing FUD.

Oh, and by the way, Your Honor, IBM adds with a smile, there is the matter of Red Hat, a case SCO failed to tell you about in its motion. In that case, SCO has moved to dismiss Red Hat's case "in part on the theory that 'the infringement . . . issues Red Hat seeks to adjudicate in this case are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM case pending in Utah Federal District Court." The court denied their motion to dismiss but she did stay the case while the IBM case goes forward. When Red Hat recently asked for a reconsideration of the stay, SCO argued against lifting the stay, saying that "the IBM case [and IBM's Tenth Counterclaim specifically] will address central issues raised in this lawsuit" and "it would be 'a waste of judicial resources' and the resources of the parties, to litigate this case while a substantially similar question is being litigated in federal district court in Utah."

So, follow the pea as we explain the shell game, IBM sums up. In Delaware, they argued successfully that Red Hat should wait for IBM to go first in Utah. Now it says in Utah that AutoZone should go first in Nevada, where AutoZone is seeking a stay pending resolution of this case in Utah. "SCO should not be allowed continually to put off adjudication of its copyright claims." IBM should be granted summary judgment, or in the alternative SCO's motion to dismiss or stay should be denied and Kimball should retain jurisdiction over IBM's 10th counterclaim. We're ready to go, IBM says. AutoZone has only just been filed. So the so-called "first-filed rule" on which SCO relied in its motion, does not support SCO's position. Then IBM has a fine time quoting Darl over and over and over, listing numerous threats and claims that the use of Linux infringes SCO's copyrights, and calling it all a "campaign to create the false and/or unsubstantiated impression that SCO has rights to UNIX and Linux that it does not have." Their FUD includes "making claims that SCO's alleged copyrights to the UNIX software cover material in Linux." They also, IBM adds in footnote 1, amended their complaint to formally assert copyright infringement, in direct response to which IBM filed its Tenth Counterclaim.

After months of discovery and two court orders, SCO still hasn't responded to IBM's interrogatories asking SCO to be specific and present its evidence. If our goal is the preservation of judicial resources, IBM says with a bit of a curled lip, granting our motion for summary judgment would achieve that noble goal. Such a declaration "would effectively resolve the copyright issues concerning Linux in this case, as well as the issues in the Red Hat and AutoZone case." After all, IBM reminds the court, SCO told the Red Hat judge that the stay shouldn't be lifted because the issue of "whether Linux contains misappropriated UNIX code" is "also raised directly by IBM's Tenth Counterclaim against SCO" and so should be decided first.

As for SCO's "first-filed" argument, they offered no cases to support their position and anyway, that rule only applies if the parties are the same in two cases in different districts, so IBM's counterclaim should be considered filed first:

"When a claim that is newly added to an action relates to earlier claims raised in the same action, courts accord the later-filed claim the filing date of the prior pleading for purposes of a motion based on duplicative litigation."

SCO's representations to the Delaware judge in the Red Hat case show they view the IBM case as one involving infringement of SCO's purported copyrights. IBM's earlier filed counterclaims, filed in August of 2003, also concerned SCO's assertions, in its public FUD, which IBM mentioned in those earlier counterclaims, that Linux infringes its copyrights to the UNIX software. The issue came up as far back as March of 2003. IBM's 10th counterclaim addresses that same issue, obviously, but it wasn't the first time the issue came up in IBM's pleadings. The 10th counterclaim relates back to these earlier pleadings going back to March of 2003 and so should be considered filed before SCO's case against AutoZone, which wasn't filed until March of 2004. And anyway, IBM points out, the court has discretion not to apply the first-filed rule.

With that, IBM asks the court to deny SCO's motion to dismiss or stay IBM's Tenth Counterclaim. The Memorandum makes reference to exhibits, which we hope to have for you soon. Some of them, as you'll see, such as SCO's letter to the 1500 corporations, we have published earlier. Note IBM makes reference to SCO's arguments in opposition to Red Hat's request for reconsideration of the stay, which is a pleading we don't have yet but hope to have soon.

You'll notice too that in footnote 3 of IBM's Memorandum in Support of its cross motion, it makes reference to the Novell-SCO dispute over copyright ownership, but it tells Judge Kimball that he need not decide the question of ownership to decide IBM's cross motion. It doesn't matter to IBM who wins that battle. The question is whether IBM's Linux activities violate the copyrights, regardless of who owns them.

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