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SCO's Hail Mary Pass & What's Wrong With It
Tuesday, September 14 2004 @ 05:17 AM EDT

Wednesday was supposed to be the day IBM got its hearing on its cross motion for partial summary judgment on its claim for a declaratory judgment of non-infringement of copyright, specifically "for a declaration of non-infringement with respect to IBM's Linux activities (the 'Tenth Counterclaim')". It was filed back in mid-May. It was to be heard at the same time as argument on SCO's motion to dismiss or stay the same claim.

Rather than let that happen, SCO has filed its Expedited Motion to Enforce the Court's Scheduling Order Dated June 10, 2004. By filing two days prior to the hearing, I think they may well get a delay on Wednesday, if only because the judge may not have time to even read this by then (heaven only knows the style alone makes one want to go walkabout), and of course IBM may or may not be able to respond to it prior to Wednesday. So I think it's a strategy thing. If the judge is a geek, they won't pull it off; but if not, they may well succeed in getting at least a little delay. But there are some issues that ought to prevent them from succeeding, not just tech issues, but legal ones as well.

Issues Off the Top of My Head

1. First, they present their motion as if IBM is violating or rebelling against Judge Wells' scheduling order. That will not impress her. Maybe subliminally, if she is a control freak. But I've seen no indication of anything like that. She knows perfectly well that you are not in any way required to wait until discovery is finished to bring a summary judgment motion. So, at a minimum, that spiel ought to leave her cold.

Rule 56, which is one of the rules under which IBM brings its motion, is quite clear on this point:

"Rule 56. Summary Judgment

(a) For Claimant.

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.

(b) For Defending Party.

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof."

SCO's nasty spin in no way alters that rule, and the judge will know it. At any time means at any time. All cases have scheduling orders. It doesn't freeze the case while everyone waits for the sand to slowly drip through the hourglass. Not that SCO wouldn't love that. So they ask the judge to "enforce" her schedule.

IBM's position is this:

1. SCO claims to hold copyrights to certain UNIX software, which give it the right to control IBM's use of and contributions to Linux, a computer operating system which was pioneered in 1991 by an undergraduate student named Linus Torvalds and has since been continuously developed over the Internet by thousands of programmers worldwide. SCO refuses, however, 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. After more than a year of litigation, two orders to compel and two affidavits from SCO certifying that it has provided complete responses to IBM's interrogatories, SCO admits - by its silence and failure to provide evidence - that IBM's Linux activities do not infringe SCO's alleged copyrights. 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 the UNIX software.

4. Additional discovery is unnecessary here. SCO has had access to all of the information necessary to determine whether and how IBM's Linux activities infringe its purported copyrights from the outset of this case - the source code to which SCO purports to hold copyrights on the one hand and the publicly available source code for Linux on the other - and yet is unable to proffer any evidence of copyright infringement. Indeed, given SCO's repeated failure to comply with the Court's orders, the fact of IBM's non-infringement should simply be established against SCO, and SCO should not be allowed to adduce evidence on this issue under Rule 37(b)(2)."

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