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
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
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
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.
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
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
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
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
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.
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
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).