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Transcript of September 15, 2004 Hearing SCO v. IBM
Tuesday, September 21 2004 @ 05:59 PM EDT

Here it is, everyone, the transcript of the marathon September 15 hearing. Enjoy. Note that you have to click on Page Down to get from page one to page two, etc. And you need to save it locally and then open that copy up to read it. If that doesn't work, try this version, which Frank has tried to rework to address the issues. Thank you, Frank.

SCO argues that the 10th counterclaim should be dismissed or stayed because it is introducing new issues into an already complicated case. Copyrights only come into this case in connection with IBM continuing to distribute AIX post "termination" by SCO of their license. Ha! responds IBM's Evan Chesler. Let's read their Complaint. What does it say? It says that IBM has been "aiding and abetting, assiting, contributing to the infringement of their copyrights and directly infringing their copyrights." He does have one slip of the tongue, saying that they are accused of putting code into the public domain, but GPL'd code is not in the public domain. I expect he knows that, but just mispoke. I am only mentioning it, so no one gets confused permanently.

He points out that in the AutoZone and Red Hat cases, both having nothing to do with AIX distribution by IBM post "termination", SCO told those courts that the copyright infringement issues were being handled in the IBM case. So, how can they now tell the Utah court that the case has nothing to do with copyright infringement except for post-"termination" distribution of AIX? SCO's executives filled the media with charges of infringement, and IBM respectfully submits that it has the right to clear itself of all those false charges. Besides, the excuse they gave for "terminating" IBM's license was that they had given away SCO's copyrighted code without their consent and giving it to the Linux community. And they now don't want to talk about all that, just narrow the case down to post-"termination" distribution of AIX?

To prove his point, Chesler makes reference (on page 20 and 21) to IBM's 2nd Amended Counterclaims, paragraphs 171 and 173, which read like this:

171. IBM does not believe that its activities relating to Linux, including any use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.

173. IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable.

He also refers to SCO's complaint, paragraph 179, which reads like this:

179. IBM's breaches of the IBM Related Agreements and the Sequent Agreements and its post-termination actions have infringed, have induced infringement of, and have contributed to the infringement of, copyright registrations of SCO and its predecessors. Such actions have been willful and have been done with knowledge of the copyright rights of SCO.

Then, on page 23, he references SCO's paragraph 113:

113. IBM has violated §2.01 of the Software Agreement by, inter alia, using and assisting others to use the Software Products (including System V source code, derivative works, documentation rrelated thereto and methods based thereon) for external purposes that are different from, and broader than, IBM’s own internal business purposes. By actively supporting, assisting and promoting the transfer of UNIX technology to Linux, and using its access to UNIX technology to accomplish this objective, IBM is (a) using the Software Product for external business purposes, which include use for the benefit of Linus Torvalds, the general Linux community and IBM’s Linux distribution partners, Red Hat, Inc., Novell, Inc., SuSE Linux AG and their respective subsidiaries; and is (b) directly and indirectly preparing unauthorized derivative works based on the Software Products and unauthorized modifications thereto in violation of §2.01 of the Software Agreement.

On page 25, he references paragraph 122, which reads like this:

122. IBM has breached its obligation of confidentiality, and has failed to otherwise hold the Software Products in confidence for SCO by contributing portions of the Software Product (including System V source code, modifications, derivative works and methods based thereon, together with documentation and development notes) to open source development of Linux and by using UNIX development methods in making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product. These include, among others, (a) scalability improvements, (b) performance measurement and improvements, (c) serviceability and error logging improvements, (d) NUMA scheduler and other scheduler improvements, (e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File System, (g) enterprise volume management system to other Linux components, (h) clusters and cluster installation, including distributed lock manager and other lock management technologies, (i) threading, (j) general systems management functions, and (k) others.

Is that not clear? So exactly who changed their position in this lawsuit? Or tried to. Chesler continues to point out that SCO has yet to answer the two questions IBM asked in their Interrogatories 12 and 13, namely, What is yours that we took, and what did we do with it that causes you to sue us? "We've been asking those two questions for a year," he tells the Judge, and they won't tell us:

"What did we take and what did we do with it? Those questions are before this court, and SCO never said, 'Your Honor, the reason we shouldn't be obligated to answer those questions is they are not in the case. You will be expanding the complexity of this case beyond what it already is by asking us to produce that information.' They made many other arguments, but never that one, and none of their arguments were successful. It is their failure to answer those two questions that led to this summary judgment motion on this very counterclaim, which adds nothing new to the case. It's the information we have been chasing all this time. . . .

"What they need to do to prove their claim is very simple. It's like every other copyright claim. You take the copyrighted work, which they have, and you match it against the allegedly infringing work, which anybody in the world can download off the internet, and you see if they are sufficiently similar to constitute infringement. . . . They have, and have had all of that information from the time they brought this lawsuit. If they don't have a basis for alleging the infringement, then I would wonder where they got the basis for suing AutoZone for allegedly infringing the copyrights for using Linux. They've got the basis or they don't. We have been asking for it for a year. They won't tell us. This is not about complicating this case, Your Honor. It's about the anywhere-but-here strategy."

Then SCO gets to answer, and their attorney, Robert Silver, stands up to talk about AutoZone and Red Hat, and he makes a notable statement:

"The AutoZone case was focused on a matter that is very specific to AutoZone. It doesn't have to do with the world of Linux. It has to do with a specific AutoZone problem."

Well, well, what do you know? It appears a certain pro-SCO gal reporter got something wrong in "reporting" that doing limited discovery in that case gave Linux end users another potential reason to worry:

"AutoZone, the showcase Fortune 500 Linux user that SCO sued for copyright infringement as a warning to other Linux users, has lost an emergency bid to overturn a court order giving SCO the right to limited discovery. . . .The discovery could lead to a [sic] SCO asking the court for a preliminary injunction ordering AutoZone to stop using its Unix code and effectively its Linux systems."

Either she got it wrong, which would not be a first, or Mr. Silver told a fib to the judge, and I am sure lawyers are supposed to tell judges the truth, the whole truth, and nothing but the truth. They taught us that in a paralegal class on ethics, and I believed them. So which is it? Is AutoZone about copyrights and Linux and thus applicable to all Linux users? Or is it specific to AutoZone and has "nothing to do with the world of Linux"? It kind of can't be both, can it?

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