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The Remaining IBM Counterclaims
Saturday, October 08 2005 @ 01:29 PM EDT

Part of what Groklaw does is give a helping hand to journalists who are looking for some facts or need a document and can't find it. So, in that spirit, and because I notice some seem to be confused and think that IBM has dropped its *case* against SCO, instead of just its patent counterclaims, here are the remaining counterclaims IBM still has pointed directly at SCO's heart:
  • FIRST COUNTERCLAIM - Breach of Contract
  • SECOND COUNTERCLAIM - Lanham Act Violation
  • THIRD COUNTERCLAIM - Unfair Competition
  • FOURTH COUNTERCLAIM - Intentional Interference with Prospective Economic Relations
  • FIFTH COUNTERCLAIM - Unfair and Deceptive Trade Practices
  • SIXTH COUNTERCLAIM - Breach of the GNU General Public License
  • SEVENTH COUNTERCLAIM - Promissory Estoppel
  • EIGHTH COUNTERCLAIM - Copyright Infringement
  • NINTH COUNTERCLAIM - Declaratory Judgment of Noninfringement of Copyrights (AIX, Dynix)
  • TENTH COUNTERCLAIM - Declaratory Judgment of Noninfringement of Copyrights (Linux activities)
  • FOURTEENTH COUNTERCLAIM - Declaratory Judgment

That's OK. Journalists can't know everything. The law is a speciality. By the way, that isn't a complete list of all counterclaims SCO is now facing. We should probably add the 7 Novell counterclaims too:

  • FIRST CLAIM FOR RELIEF - Slander of Title
  • SECOND CLAIM FOR RELIEF - Breach of Contract: 1.2(b) and 1.2(f) of the Asset Purchase Agreement
  • THIRD CLAIM FOR RELIEF - Breach of Contract: 1.2(b) & 4.16(a) of the Asset Purchase Agreement
  • FOURTH CLAIM FOR RELIEF - Declaratory Relief: Rights and Duties under 4.16(b) of the Asset Purchase Agreement
  • FIFTH CLAIM FOR RELIEF - Declaratory Relief: Rights and Obligations Under APA's Covenant of Good Faith and Fair Dealing
  • SIXTH CLAIM FOR RELIEF - Restitution/Unjust Enrichment
  • SEVENTH CLAIM FOR RELIEF - Accounting
  • Not to ruin SCO's Saturday or anything, but after all that, SCO still faces Red Hat's claims, which are merely on hold, waiting for IBM to finish. And as SCO points out in its SEC filings, it is possible the company could face regulatory issues down the road. I'm sure they are very busy right now making sure they didn't misrepresent to the SEC that IBM was violating Judge Wells' discovery orders, now that Judge Wells has told them in a public hearing that IBM correctly understood her orders, not SCO, and that IBM, contrary to SCO's slurs, fulfilled its discovery obligations regarding nonpublic Linux materials.

    Who else did SCO tell that tall tale to? Well, if I read between the lines, I'm thinking maybe . . . Maureen? Her latest account of what might happen at yesterday's hearing, written in advance, is wrong in every detail I noticed -- and hilariously funny as a result. I thought about making fun of it, but arguing against it is my better judgment, which is clear that ignoring her works best. Don't all run to her website, will you? We wouldn't want anyone seeing a lot of traffic that doesn't happen normally and pretending it's a DOS attack. I have had the feeling for some time that SCO would like to manufacture such an incident. I think that is why they attack me so viciously, and their running dogs too, to get a reaction from you, so they can blame the Linux community for being "lawbreakers". No one from Groklaw would break the law, I know, but do be prudent about visiting sites you know to be on the dark side, so no one can manufacture an incident.

    Still, there is one thing she says in the article that I think belongs in our permanent history of the SCO saga. Here it is, from her mistitled rag, Linuxgram -- and say, while those trademark enforcers are at it, may I inquire if this is a proper use of the trademark, considering all she ever seems to do is attack Linux? Might that confuse the public? Here the one piece worth putting in our collection, the suggested motive for SCO's legal shenanigans:

    *SCO Wants Court To Slap IBM Around*

    SCO on Wednesday filed a follow-up brief to its latest motion to compel discovery from IBM and asked the court to sanction IBM for failing to produce discovery that SCO claims IBM has been repeatedly ordered by the court to turn over.

    SCO basically accuses IBM of lying to the court - and to SCO - about its production of documents.

    Sanctions can be monetary or, as SCO might like better, the sacrifice of certain claims like, say, the allegation that Linux didn't come from AIX and Dynix.

    So, that was the plan -- to get IBM sanctioned, so it would lose its ability at trial to assert that Linux doesn't come from AIX or Dynix? If so, then SCO has gone mad or is so desperate it is wildly flailing about, willing to try any crazy strategy, and frankly, if that is their best idea for a plan, things are looking bleak for SCO in the legal department. Then there's the ethics department.

    As you know, nothing like that happened at the hearing. IBM wasn't "slapped down". Instead, the judge said IBM had correctly understood her orders and had complied. SCO lost its motion, and the judge told SCO, in essence, to cut it out.


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