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Report from the Courthouse March 7 - Part 1 (IBM's Motion for DJ on 10th CC)
Thursday, March 08 2007 @ 02:22 AM EST

Here we go, Chris Brown's report from the courthouse on yesterday's arguments on the remaining summary judgment motions in SCO v. IBM. Actually, this is Part 1, covering the arguments made on IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (IBM's 10th Counterclaim) [PDF]. More is on the way on the other motions argued after this one.

Apparently, SCO still doesn't comprehend the GPL, not to mention some tech issues, like what Linux needs to run. The report indicates they still don't get it that if you redistribute code under the GPL, you have accepted the GPL and are distributing under that license, whether you are the copyright holder or not.

Once again, here is Groklaw's summary judgment chart, so you can follow along and here's IBM's Memorandum in Support, Part A and Part B [PDF] of this motion, if you wish to compare or flesh out the arguments.

Here is Chris Brown's report:

*****************************************

The first motion to be heard today was IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (IBM's 10th Counterclaim). Of the three hours for today's hearing, each side was allocated 45 minutes each on this motion.

David Marriott argued for IBM and opened with: After promoting Linux for nearly a decade, SCO underwent a change in management and undertook a series of legal attacks against it, and despite inducing thousands to use it, it threatened users of Linux with infringement, including IBM. To put an end to the FUD, IBM asked this court to declare that IBM does not infringe the copyrights of SCO.

SCO for years has said it controlled over 1 million lines of code in the Linux kernel, but at the end of the day it identifies only 326 lines, representing 1/5000th percent of the kernel or equivalent to 1 spectator out of 20,000 in an arena like the former "Delta Center." (Utah Jazz's home-court, now "Energy Solutions Arena")

IBM had a largish chart set up titled "The 326 Lines At Issue" displaying, presumably, 326 color-coded lines of "code". The legend indicated that yellow lines were comments, green were #defines, red were structure declarations, and blue being function prototypes. Mr. Marriott referred to this chart saying that many of these lines are comments rather than software code. That eleven out of twelve files are header files. The code consists of #define statements (shorthands or abbreviations), structure declarations (collection of related data values) comprising 164 lines out of 326.

He pointed to the first line on the chart as an example and read "#define EPERM 1". He likens this to the shorthand for the 10th Circuit Court as 10 Cir. He says that 12 out of 326 lines are function prototypes, likening it to the search function on WestLaw allowing one to enter the search terms, and it returns the results.

It's SCO's burden to show IBM's copyright infringement, he argued, and cited three reasons summary judgment should be granted to IBM: 1) Despite court orders, SCO provided no information in its final disclosures. 2) Any copyrights to the Unix code are held by Novell, not SCO. 3) Any rights SCO has, it has assigned to United Linux. He says that he will skip item number two for another day.

On the first item, Judge Wells and this court ordered SCO to disclose infringed code. But neither in response to interrogatories or in it's final disclosures was it it specified.

On the third item, SCO transferred any copyrights it had to UnitedLinux. SCO's Linux 4.0 is based upon UnitedLinux 1.0. SCO Linux 4.0 included these 326 lines of code and was released under the GPL.

IBM has multiple licenses to the code at issue. IBM has multiple licenses to the code, but he will focus on the two broadest licenses which both cover all 326 lines of code. The first is the Strategic Business Agreement between IBM and Caldera granting IBM the right to distribute and develop derivatives of the code. The second is the General Public License (GPL).

In the Strategic Business Agreement, Caldera warranted the code (Linux) does not infringe the intellectual property rights of any third party. At the time this agreement was made, Santa Cruz was a third party.

It is not disputed by SCO that their Linux products were distributed under the GPL. SCO is estopped from pursuing these claims. Caldera was founded as a Linux company. For nearly a decade SCO distributed, and encouraged others to distribute, Linux. SCO's employees testified that the allegedly infringed code was in SCO Linux.

He cited Caldera's awards for their Linux distribution. He pointed out that Caldera was the first signed of the Linux Standard Base. The code at issue here was required for the Linux Standard Base. Santa Cruz hosted, and Caldera participated in, a meeting to establish 86Open and pushed for the adoption of ELF, a standard that IBM is charged with infringing.

In the Strategic Business Agreement Caldera's warranty promised to hold IBM harmless for any third party infringement.

SCO cannot establish substantial similarity between Unix and Linux.

IBM stated (in its motion) five reasons the code is not copyrightable, two of which SCO's expert failed to respond to and therefore IBM submits it is admitted -- programming practice and externalities -- and for those reasons alone, IBM is entitled to summary judgment. Regarding misuse: SCO has misused its copyrights. SCO has claimed ownership over one million lines of code, far beyond the 326, including claiming ownership over code undisputedly owned by others such as JFS and BSD code.

SCO's turn:

Mr. Singer argued for SCO and opened saying that this is a claim by one of the world's biggest enforcers of intellectual property rights, making over one billion dollars per year for IP rights, and it seeks a declaration conversely that SCO has no rights.

IBM's tenth counterclaim (page 171 in particular) reads: "Activities related to Linux..." Today IBM seeks a declaration regarding the the kernel. They do so to limit the supposed infringement to only 326 lines of code.

Kimball asks hypothetically if he sustains Judge Well's orders how it would affect this issue. Singer replies that the materials remain in the case.

Mr. Singer states that the code is not trivial. Mr. Singer then erroneously, in this reporter's opinion, claimed Linux won't work without Streams, Linux won't work without ELF, Linux won't work without these header files.

He said that since this is IBM's motion, under 10th Circuit law IBM bears the burden of proof on a declaration of non-infringement.

Regarding who owns the copyrights, he said SCO believe it is clear the copyrights were transferred from Novell to Santa Cruz and then to SCO. The only reason there could be any question at all is through a table of "excluded works" which identifies any copyrights or trademarks. SCO's position is that this was an error, and the amendment clarified what was covered.

Mr. Singer claimed that Mr. Marriott doesn't want to argue extrinsic evidence, but individuals on both sides state it was the intent to transfer copyrights.

IBM asserts that SCO transferred copyrights to UnitedLinux. This issue is before European arbitration, and here comes IBM asking your honor to issue judgment on this issue as a matter of summary judgment.

The Joint Venture Agreement says that the rights are only to those as a result of the joint venture, not preexisting technology, he further argued.

Regarding infringement, at an earlier hearing IBM stated that there is no dispute IBM copied and distributed Linux. Therefore if Linux infringes Unix, then IBM infringes. There was also non-literal infringement. Experts need to do the [abstraction-filtration-comparison] test. IBM's experts did not do this.

Regarding protectable expression, Professor Cargill looked at this and determined this is protectable. In the Gates Rubber case, IBM submitted an amicus brief claiming that code is generally protectable. These issues need to be decided at trial including substantial similarity.

The real issue is qualitative rather than quantitative. He cited cases where a small percentage of words or code were deemed substantial.

If these licenses (that IBM identified) apply, then why didn't IBM come before the court with them in 2003, he asked? Why did they wait until their summary judgment motion to bring them up? SCO asserts it is because they don't apply.

He said that IBM states that the work was distributed under the GPL. The GPL requires that the copyright holder knowingly and willingly state the work is distributed under the GPL and place a notice to that effect in each file. SCO never did that. The kernel includes no notices attributing rights to Caldera or Santa Cruz.

Under equitable defenses, IBM is the last party that should come before this court asserting equitable estoppal. Maybe it's an argument for the man on the street might make, he said; it's not one that IBM should assert.

IBM is jumbling together acts made by Caldera and acts taken by SCO. He put up an equitable estoppel timeline chart (not visible to us). He reminded the judge that it was shown on Monday (we did not see this chart Monday, so I assume it was used while the courtroom was closed). He said that the copyrights were owned by Santa Cruz. Santa Cruz was not in the Linux business when IBM set up the Linux Technology Center and contributed the code to Linux. Actions made by Caldera, or anyone else that was contributing to Linux, don't matter. They were not the copyright holder.

Equitable estoppel requires reliance upon the actions of the copyright holder. There is no evidence that IBM, when making these contributions, looked to what SCO was doing and made their decisions based on that.

Regarding copyright misuse, this is factual in nature and requires resolution by a finder of fact on those issues. There is a serious issue with regard to the provenance of JFS, he claimed.

IBM responds:

Mr. Marriott responded, although first Judge Kimball pointed out that Mr. Singer disagrees with him about on whom the burden of proof rests. Mr. Marriott stated that he does and that IBM's brief spells out the reasons it is SCO that has the burden of proof. He pointed out there is a difference between an affirmative declaration and a declaration of non-infringement.

SCO contends IBM is using gamesmanship to narrow the issue to just the kernel. In motions made by IBM in clarifying its meaning for the purpose of this counterclaim IBM specifies the kernel.

SCO has failed to explain exactly what it is that IBM has done. They have not specified why "EPERM 1" is infringing. The fact that an error is issued? The spelling of "EPERM"? The number 1? What if it was 6? Is it the two items together? SCO hasn't specified.

SCO claims their distribution of Linux for nearly a decade is without consequences. Regarding estoppel, the law is clear that a party is bound by the conduct of its predecessors.

Mr. Marriott had a chart flipped over to the blank side and began drawing a depiction of a baseball diamond. He numbered the various positions placing the number one on the pitcher's mound, two for the catcher, three at first base, four for second base, five for third base, six for shortstop, with the numbers seven, eight, and nine in outfield. He then stated that the pitcher is number one, the catcher is number two, and first base is number three. He explained that the #defines are equivalent to someone writing PP 1, PC 2, and PFB 3 as a shorthand for such. He claims that there is nothing original or protectable about making such lists of short names and enumerating them. SCO claims that assigning short names with integers is protectable representation.

After Mr. Marriott closed, Judge Kimball called for a ten-minute break.

Next: Motion for Summary Judgment on IBM's Eighth Counterclaim argued in conjunction with SCO's Motion for Summary Judgment on IBM's Sixth, Seventh, and Eighth Counterclaims (784 and 777).


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