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What's Next in the SCO v. IBM Summary Judgment Motion Hearings?
Wednesday, March 07 2007 @ 12:43 AM EST

We've heard reports from the courthouse now on the arguments on four summary judgment motions in SCO v. IBM, but what's left for the March 7, 2007 hearing, scheduled for later today? I was getting confused myself, so to help me get it straight, I finished up Groklaw's summary judgment motions chart. Here's a breakdown, then, on what to expect next, a list of the motions that will be argued, with a few quotations from the various filings to let you know what each motion is about, so you can follow along when we hear from our eyewitnesses.

On Thursday, March 1, we had the following motions argued:
781 - Motion for Summary Judgment on SCO's Copyright Claim (regarding AIX)
775 - Motion for Summary Judgment on SCO's Third Cause of Action, For Breach of Contract (regarding Project Monterey)

Then, on March 5th, we had a hearing on the following:

783 - Motion for SJ on SCO's Interference Claims (SCO's Seventh, Eighth, and Ninth Causes of Action)
782 - Motion for Summary Judgment on SCO's Unfair Competition Claim (SCO's Sixth Cause of Action)

So, what's left? A lot. I have no idea how they will fit it all in on one day. If you check our summary judgment motions chart, you'll see that later today, SCO and IBM will be arguing the following motions:

780 [PDF] - IBM's Motion for SJ on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action) - Memo in support:

"SCO's contract claims thus turn on the proposition that the Agreements somehow give SCO the right to control IBM's and others' original works.")

784 [PDF] Motion for SJ on IBM's Eighth Counterclaim (Copyright Infringement re GPL) - Memo in support:

"Despite its dramatic public claims, SCO has failed to identify any code allegedly owned by SCO and copied by IBM into Linux. By contrast, undisputed facts establish that SCO has literally copied, without alteration, hundreds of thousands of lines of code developed and copyrighted by IBM. And SCO has done so for profit, without any license to do so. While the measure of damages is not amenable to summary determination, the Court can and should enter judgment that SCO is liable for copyright infringement on IBM's Eighth Counterclaim, and should enjoin SCO from any further infringement of IBM's copyrights."

776 - SCO's Motion for Summary Judgment on IBM's Second, Third, Fourth, and Fifth Counterclaims - Memo in support:

"IBM has filed several counterclaims asserting that it has been damaged because SCO's lawsuits and press statements about its claims were made as part of a "scheme" involving "false and misleading statements" that were made "with actual knowledge or in reckless disregard of the fact that SCO does not have the rights it seeks to assert." ... All of SCO's statements in the course of litigation are absolutely privileged. To the extent that IBM relies on statements outside the absolute privilege, SCO is protected by a qualified privilege, under which SCO cannot be held liable without proof of bad faith. The evidence indisputably shows that SCO has acted in good faith, and IBM has no evidence to the contrary. Further, IBM has not competent evidence that it sustained any damages as a result of SCO's alleged conduct."

To which IBM entered a memo in opposition: "SCO has for years engaged in a campaign to create fear, uncertainty, and doubt about IBM's products and services. As part of this campaign, SCO has disparaged IBM; made false and misleading statements to the press and IBM's customers about IBM's AIX, Dynix, and Linux products and/or services; and abused and misused its intellectual property rights. To avoid responsibility for its misconduct, SCO seeks summary judgment on IBM's counterclaims for violation of the Lanham Act (Count 2), common law unfair competition (Count 3), tortious interference (Count 4), and violation of Section 349 of the New York General Business Law ("Section 349") (Count 5)....SCO first seeks to avoid liability for its misconduct by arguing that it is immune from suit under either an absolute litigation privilege and/or an unidentified, qualified privilege. SCO essentially claims that a party to a lawsuit is privileged freely and publicly to disparage another without limitation. SCO is wrong."

785 [PDF] IBM's Motion for Declaratory Judgment on IBM's Tenth Counterclaim (for Declaratory Judgment of Non-Infringement) - Memo in support Part A and Part B:

"After promoting the Linux operating system for nearly a decade, SCO changed management and launched a series of legal attacks against it. ... While SCO refused to disclose its alleged evidence of infringement, it proclaimed publicly that Linux contained more than one million lines of code controlled by SCO and could not be used without infringing SCO copyrights. To put an end to the fear, uncertainty and doubt created by SCO's allegations, IBM sought a declaration from this Court that the Linux kernel, the core of the operating system, does not infringe copyrights owned by SCO.... The deadline came and went... and SCO's allegations remain unsupported. As a result, summary judgment should be entered in favor of IBM...."

777 [PDF] -- SCO's Motion for SJ on IBM's Sixth, Seventh and Eighth Counterclaims - Memo in support:

"IBM's Sixth, Seventh and Eighth Counterclaims concern certain programs that IBM licensed for free use under the GNU General Public License and Lesser General Public License (collectively, the "GPL"), and all turn on the allegation that SCO has violated the GPL in seeking to enforce its contractual and intellectual property rights. The Sixth Counterclaim asserts that SCO breached the GPL. The Seventh Counterclaim seeks to recover damages based on IBM's alleged reliance on SCO's promise to not breach the GPL. The Eighth Counterclaim asserts that SCO's distribution of Linux infringed IBM's alleged copyrights on code it released to Linux under the GPL. These Counterclaims all fail as a matter of law because it is undisputed that:
  • Where SCO copied, redistributed or sublicensed Linux, it did so in compliance with the GPL;
  • Nothing in the GPL prohibits SCO from licensing its UNIX technology; and
  • Nothing in the GPL or the case law supports IBM's argument for "retroactive termination" and "retroactive infringement."

SCO further shows below that the GPL should not be read as IBM has read it to interfere with SCO's right to enforce its own intellectual property rights, or to allow a competitor to decide what may be charged for an intellectual property license."

Here's IBM's memo in opposition:

"SCO's motion for summary judgment as to these claims depends almost entirely on a single premise: SCO did not violate the GPL. But the premise is false. SCO did breach the GPL, blatantly and repeatedly. Indeed, SCO repudiated the GPL. For that reason, SCO's motion against IBM'.s counterclaims for breach of the GPL (Sixth Counterclaim) and promissory estoppel (Seventh Counterclaim) fails....

"Similarly, SCO's motion against IBM's counterclaim for copyright infringement (Eighth Counterclaim) fails because SCO's only license to the IBM Copyrighted Works automatically terminated when SCO breached the GPL. From that point on, SCO lacked a license to the IBM Copyrighted Works, and SCO's continued distribution of the IBM Copyrighted Works infringed IBM's copyrights.

"Finally, SCO is wrong in asserting that it is entitled to summary judgment on IBM's claims for breach of the GPL (Sixth Counterclaim) and promissory estoppel (Seventh Counterclaim) because IBM has not incurred compensable harm. SCO financially damaged IBM, and IBM is in any event entitled to nominal damages for SCO's repeated violations of the GPL. Moreover, IBM seeks injunctive and declaratory relief in addition to damages on these claims. ...The intent of the GPL, as expressed in the unambiguous language of that license, is that fees and restrictions not set out in that license are barred."

I hope this makes it clearer. For more details, check out the chart. If you see any mistakes, leave a correction, please, so we can make it perfect.


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