It has been my experience in life that when folks decide to tell fibs, unless they are five years old, they do usually have a story prepared in case they are caught.
Here's SCO's Sur-Surreply Memorandum in Further Support of its Objections to the Magistrate Judge's Order on IBM's Motion to Confine (PDF), as text, which is,
I believe, SCO's alibi as to why it did not put all its "materials" on the table by the deadline. I think I'd like to call this SCO's "what is truth?" memorandum.
I got the impression, as did Judge Wells, that it was a plan, a strategy, to ambush IBM. Not so, says SCO. It's not like that at all.
SCO argues in essence that they were not required to put everything on the table by December 2005; they didn't have to answer interrogatories until their expert reports were due. Besides, their definition of "allegedly misused materials" isn't the same as IBM's and the court goofed by going along with IBM's interpretation. And you don't have to be the copyright holder to sue for copyright infringement. An exclusive licensee can do that. They don't technically claim to be an exclusive licensee, but maybe the judge won't notice.
This document is also remarkable in that SCO now claims that it never said there was a mountain of copyright infringement, except in the context of contract claims:
IBM also previously said that "SCO had spent more than three years developing its theory of infringement," but the record does not support that assertion with respect to Dr. Cargill's opinions in particular. The record shows that as of early 2005, SCO did not even regard itself as having brought a copyright claim in this case. (See, e.g., SCO's Opening Mem. at 18.) IBM now says (at 19) the proof that SCO spent three years developing that theory is "a plethora of public statements since 2003 regarding its claim that Linux infringes SCO's copyrights." The statements at issue in the articles that IBM cites do not support IBM's argument with respect to Dr. Cargill's work, and in several instances directly refute IBM's argument...
Indeed, Dr. Cargill testified at deposition that he had spent only approximately 400-500 hours writing all three of his expert reports. The record thus puts the lie to IBM's repeated assertion that Dr. Cargill's expert opinion on substantial similarity "reinvents" SCO's case from what it was in 2003, 2004, or 2005. It should be self-evident (as IBM says) that where SCO spent only months developing the analysis of substantial similarity at issue, it would have required IBM and its experts only months to respond.
*Now* they tell us it wasn't about copyright. Of course, that's not how you remember it, nor I. It was always about copyright, since 2003. If it was just about contracts, then perhaps SCO would like to explain why it sent end users letters about infringement. And what were the threats to Red Hat about? They are not in contract with SCO. And what was SCOsource supposed to cover? Contract violations? If it was, I think that might be fraud, since I can't think of any theory whereby end users not in a contract would be responsible for contract violations by somebody else. Well, perhaps you don't want to get me started on the subject of fraud and SCOsource.
The thing about fibbing is, it's hard to keep everything straight.
For some proof that SCO absolutely did talk about copyright infringement, and specifically about nonliteral copyright infringement since 2003, not 2005, here's the transcript of SCO's conference call in 2003, on July 21, which David Boies attended, in which they talked about SCO's copyright infringement claims and what they intended to do about copyright infringement, including SCOsource. Here's just one section:
McBride: OK, thanks Blake. Good afternoon, and thank you for joining our call. I'd like to start by updating you on recent developments at SCO. After my comments we'll then take your questions. SCO's legal counsel, David Boies, is available on this call to help address questions you might have regarding SCO's legal position.
In May 2003, SCO warned Global 1500 companies that enterprise use of the Linux operating system may violate intellectual property rights in the Unix operating system. Today we confirm that fact. Enterprise use of any Linux distribution based on the 2.4 Linux kernel contains software code that was misappropriated from Unix. This directly violates SCO's copyrights and contract rights in the Unix System V operating system. Linux contains hundreds of files of software code taken directly from Unix System V or from derivative works protected by Unix System V licenses.
This infringing code falls into three categories. First, literal copying of Unix System V source code. Second, literal copying of code from Unix System V derivative works without authority. And third, non-literal copying of the structure, sequence and organization of Unix System V.
Much of the infringing code deals with new multiprocessor capabilities inside of Linux. This isn't a matter of changing a line or two of code. If all of the infringing code were removed today, Linux would have little multiprocessor code left and would be totally ineffective for enterprise use.
The infringing elements found inside Linux are all protected by US and international copyright laws. SCO announces today that it has registered all of its System V copyrights, so that it can enforce its copyrights in situations where it becomes necessary....
SCO is trying to find ways to help customers solve this problem balanced against our own legal rights to stop infringing use of Linux. Under US and international copyright law, end users are subject to injunctive relief and damages for improper use of copyrighted works.
With registration of its Unix copyrights, SCO now has broad legal rights against end users with respect to infringing use of the Linux 2.4 kernel release and any future release of the Linux 2.6 kernel.
However, we intend to use these rights carefully and judiciously. In the past weeks, many Linux users have asked us how they can immediately resolve issues with Linux without litigation. This is clearly the path SCO prefers to take in resolving its issues with end users of Linux. Therefore as a viable alternative to legal enforcement against Linux end users, SCO is prepared to offer a license for SCO's UnixWare 713 product for use in conjunction with any Linux offering. Specifically, SCO will hold its licensees harmless and will covenant not to sue such licensees for running Linux in binary format on any CPU licensed under a valid SCO UnixWare 713 license. This licensing format will assure that Linux users are able to run Linux in full compliance with SCO's underlying intellectual property rights....
Definitely this case started off as a contracts case. When we filed it in March we were very clear that we had contract violations that we were concerned with, and we were going and tried for months to resolve with IBM, did not get there and that ended up in litigation.
With respect to the copyrights, very clearly this is news as of today. Very clearly, we have been talking, when we sent out letters in May, we sent out letters letting them know that we had found problems inside of the Linux kernel as it related to our intellectual property. Today is really the formalization of our going down the path of broadening our case to go beyond just contracts, but also to include copyrights.
So what's new today is the copyrights have been registered. We've received the copyright registration notices back from the US copyright office, and so essentially, you know, the legal fairway that we're working with here just got a lot wider.
You have the direct, line by line code that is showing up in there, and it's very stark. When you lay down the UnixWare code base, and you lay down the Linux code base, and you look at them straight across, you can see absolute 100 direct line by line copying that's taken place, including developer comments, errors, typos that were in the developer comments, you know, and so it's very stark. That type of code has come from various vendors, and that type of code is coming from vendors primarily other than from IBM.
With respect to the next category of code we would call the derivative works area, we're seeing a lot code that has come in in just the last year or two, and that has to do with a lot of the SMP, high-end scalable technologies, the NUMA technologies or non-uniform memory access, RCU, read copy update. All of these are technologies that allow you to really take a multi processor configuration and go big time with it. In the early days of Linux and the 2.2 kernel, before it really grew up, you would get two to four processors running simultaneously. And now when we go to 2.4 kernel, you see 16-way, 32-way configurations. With the new 2.6 kernel coming out, it even jumps up higher that that. So you see incredible, enterprise level scalability going on.
Now the other thing that's interesting here is when you compare the amount of source code that was contributed by vendors, in 2.2 kernel versus 2.4 which just came out a couple of years ago you see in the 2.2 area, there was literally no contributions, and since 2.4 has come out, the number of files -- not just lines of code -- but the number of files that has been contributed by our Unix vendors is in the hundreds.
So, that's the second bucket, and then the third bucket is one of non-literal infringing areas of methods and concepts that are still protected under our rights, and that's a broader bucket beyond the first two. ...
You know, David, as I understand the copyright side of this, we have broad rights against anybody who's touching that. Well clearly it starts with the end user cause that's where the [inaudible, 21:24] is being held. And you know, no decisions have been made about where we would go if we don't get recourse from the path we're going now. My understanding is it's fairly broadly available to us.
Boies: It is, and under the copyright law, you may sue both for infringement and for what is called contributory infringement. Which is that if anyone contributes to somebody else's infringement, that is somebody who can be sued directly under the copyright laws. So that if a third party distributor was found to have engaged in conduct that contributed to an end user's infringement, that person would also be liable, under the copyright laws.
As you can clearly see, SCO was talking about copyright infringement and specifically mentioned nonliteral infringement way back in 2003. At a minimum, SCO was not only thinking about and talking to the media about nonliteral copyright infringement, it claimed it had evidence of it in 2003, just months after it filed suit against IBM. That's the third bucket. Their expert, Dr. Cargill, wasn't shown that evidence until now? They never mentioned it and he at some point, presumably after the fact discovery deadline, just came up with this theory out of a clear blue sky all by himself?
I doubt it, because I remember this interview with Darl McBride and Chris Sontag in April of 2004, "Why SCO Thinks It Can Win"? It's their Vanilla Ice riffs theory of copyright infringement. Yes, friends, nonliteral copyright infringement. April, 2004. And they said this was the aspect of their case that would win it for them in the end, and they did mean the very end, it turns out:
McBride: A lot of code that you'll be seeing coming on in these copyright cases is not going to be line-by-line code. It will be more along the lines of nonliteral copying, which has more to do with infringement. This has more to do with sequence, organization, which is copyright-protectable. It's interesting when you go down this path that everyone wants to go to the exact lines of code, but most copyright cases
Sontag: 90 to 95 percent
are not line-by-line, exact copies. It's too obvious. Most copyright infringement cases come from these nonliteral implementations of the same code or literary work.
Sontag: My favorite example is the Russian author [Dmitry Yemets], who lost in a copyright case [after being sued by] J.K. Rowling, author of the 'Harry Potter' books, in a Dutch court. He had written a book: It was a girl, not a boy, with magical powers who rides a magical fiddle and not a broom, goes to a boarding school to learn witchcraft and wizardry, plays a game of throwing balls through hoops. All these things were very similar to Harry Potter. Could someone else ever write a book about wizards and witches? Sure. But when the structure and sequence is the same
maybe the words, the code, isn't exactly the same, but Linux is trying to be just like Unix System V. The question is whether Linux was trying to be like Unix System V by doing it in ways that were illegal....
McBride: ... The analogy I like to use is Vanilla Ice's "Ice Ice Baby" versus David Bowie and Queen's "Under Pressure." If you just look at the words, I don't see a copyright violation, but if you listen to the riffs, you can hear where they're the same.
When everything is said and done, when everything is on the table in the court case, there will be an argument when the Linux guys come in and say, 'Guys, the words are entirely different, how can you say that's a copyright violation?'
But there are two parts to this. There are the words that are in the source code, and there's the music underneath. The actual code that drives these ABI files is structurally and sequentially the same....
Sontag: ... [L]ook at dynamic shared libraries; different operating systems implement these very differently. But in Linux and System V, they're implemented in exactly the same way. They could have been done very differently and still accomplish the same thing.
McBride: That's the kind of stuff that we think that, when everything is on the table, will win for us.
Of course, they didn't try to put it on the table in the IBM litigation until fact discovery was closed. But they talked it up plenty outside of court. Actually, in a Declaration by Chris Sontag [PDF] back in April of 2004, SCO said it had found examples of nonliteral copyright infringement, which he listed. I can't help but wonder if those examples showed up on the December 2005 list or only later.
But what do you think? Did Dr. Cargill really just develop this theory after that point in time? Or is Judge Wells absolutely correct, that this was an attempt to ambush IBM and gain an unfair advantage? Say, do you remember SCO "VP" Gregory Blepp's speech in Germany in June of 2004 that we partially translated, with his approval of the translation, in which he also spoke about methods and concepts and nonliteral infringment being part of their case? Clearly this theory is no recent afterthought. And I wrote back in July of 2005 that I guessed that SCO's case was going to turn out to be about methods and concepts and nonliteral infringement. If I knew, they knew, because they read Groklaw fervently.
I will let SCO speak to how discovery is supposed to work, from a reply memorandum it filed with the court in July of 2004, when it wanted all of AIX and Dynix/ptx source code, and which it got:
Discovery is designed to make the investigative process efficient and conducive to truth-finding. IBM has no more right to undermine these goals by blocking discovery than it does to tell the Court what evidence the Court and the jury may see to test the validity of IBM's own claims. Moreover, the question with respect to SCO's requested copyright discovery is not whether SCO possesses some "minimum" amount of evidence that might permit it to prove or defend the claims at issue. Rather, SCO is entitled to the production of all admissible evidence and materials reasonably calculated to lead to the discovery of admissible evidence, unless the burden to IBM outweighs this broad right in a legally and factually significant manner.
In light of the centrality of this evidence to the claims and counterclaims in this case, IBM is hard-pressed to establish any substantial burden that could justify its failure to produce such material.
Words to live by. Words to live by. So why did SCO wait until fact discovery was over to spring a massive new nonliteral copyright infringement claim on IBM? (For fairness, the phrase there about copyright had to do with defending against IBM's copyright claim.)
SCO already tried to argue to this court that it had asserted no copyright claims. The argument was rejected by Judge Kimball back in 2005, when the first round of summary judgments were decided:
Notwithstanding SCO's puzzling denial in its briefing that it has not alleged a claim against IBM for copyright infringement arising out of its use, reproduction, or improvement of Linux, it clearly has alleged such a claim. For example, in its Second Amended Complaint, SCO
alleges that IBM has infringed SCO's copyrights by "incorporating (and inducing, encouraging, and enabling others to incorporate) SCO's proprietary software into Linux open source software offerings." Second Am. Compl. at ¶6 (c). In addition, SCO alleges that "a significant amount of UNIX protected code and materials are currently found in Linux 2.4, 2.5x and Linux 2.6 releases in violation of SCO's... copyrights." Id. ¶79. It also alleges that IBM is "improperly extracting and using the confidential and proprietary information it acquired from UNIX and dumping that information into the open source community." Id. ¶110. Finally, it has alleged that IBM has "infringed, [has] induced the infringement of, and [has] contributed to the infringement of, copyright registrations of SCO and its predecessors." Id. ¶ 179.
Notice that the order didn't say that SCO's case included copyright infringement from that day forward. He said it dated from SCO's Second Amended Complaint, at least. SCO filed that in February of 2004.
So much for that slice of SCO baloney.
Speaking of which, let's get back to SCO's sur-surreply. I counted 10 separate arguments SCO makes about why it didn't put all its theories/materials on the table by the deadline, and that's only up to page 7, at which point I stopped collecting, because I took a break and was reading Lamlaw, and he says that in his opinion, the true purpose of this filing is just to make IBM work, that this is a classic nuisance lawsuit. The purpose of all the arguments is just to make IBM have to spend money to pay its lawyers to answer each argument. So why am I digging up proofs? It's fun, that's why. Anyway, the bottom line is simple: The discovery rules are clear. You are supposed to tell the other side what your claims are, as SCO helpfully explained to the court.
SCO didn't, and here come the alibis. I am imagining SCO's lawyers sitting around dreaming up this stuff and cackling devilishly.
Here's my collection of reasons SCO gives why sanctions are not fair, until I quit collecting, and for the rest of them, you can read for yourself:
1. The sanction against us is too severe.
2. There's no prejudice to IBM anyway. This is nonsensical. But SCO is arguing that expert discovery isn't generally a long period, so with Novell going first, IBM can use the time. But what that leaves out is that fact discovery in this case went on for, what, 4 years? And IBM had no opportunity to do fact discovery on these new theories.
3. IBM just wants to avoid dealing with our evidence. I think it's safe to say that IBM would like to avoid SCO, period. But had SCO put the evidence on the table, IBM would have dealt with it. It wouldn't even be hard. Just laborious and time-consuming and expensive and stupid.
4. Copyright law conflicts with the Magistrate Judge's Order. Hardy har.
5. SCO didn't have to put its experts analyses on the table by the deadline, only the misused material. The new stuff SCO wants to include is accumulated evidence in support of their experts theories of infringement. SCO put its allegedly misused material on the table. This is other stuff, "other contents in SCO's experts' reports." Whatever that means. Arguments like this may be why IBM has called SCO out for sophistry.
6. The parties don't agree on what constitutes "allegedly misused material". Then SCO should have asked for the judge to clarify a long time ago.
7. Judge Wells used an overly broad standard, as illustrated by her statement that "if it wasn't disclosed" by the deadline, "then it's out". This seems to me to conflict with point number 5. Sophistry can do that to a fellow. But that is their argument: that Tenth Circuit law "makes clear that such information is not part of SCO's legal theory of copyright infringement" and no court order told them to put all their legal theories on the table by the December deadline. Here, I think their lack of tech knowledge has wounded them again. Even if one said that legal theories didn't have to be disclosed, the materials, the code, did have to be. A theory of infringement still has to be tied to code somewhere, and that is what they didn't put on the table. They could have put "the entirety of the Linux kernel" on the table, for example, without specifying line, version and file, and then waxed poetic about their legal theories, and it probably would have worked. Why didn't they? They got cute? Or maybe they also don't know enough about software writing to grasp the difference between a novel and writing an operating system kernel.
8. IBM's argument that it asked for specifics about nonliteral infringement also ignores SCO's argument that it doesn't have to answer interrogatories until expert reports are due. Except that SCO knew, it has told us, that it would be arguing nonliteral infringement, so what it is saying here is that because it wasn't technically required to hand over that info until the last gasp of experts' reports, that is what it chose to do. But responding to interrogatories isn't so cute as all that. There is a running requirement to hand over information you have in hand. SCO can't really argue this both ways, that it just discovered it or developed it post the deadline and that it always knew it would be about nonliteral infringement. How would it know that, without some specifics? And if it had information about specifics, it had a duty to turn it over, not hold back until the last blooming minute possible.
9. The court orders were not clear. SCO makes a twisted argument by mistating the order, saying that the orders "did not clearly require SCO by December 2005 to have its experts finish their analyses of the material that SCO identified at that time as misappropriated". Which isn't what anybody has said. Nevertheless, SCO argues against the argument no one has made. In fact, IBM has said it isn't saying that, as even SCO acknowledges on page 5, but what it is saying is that the materials the experts could analyze had to be on that table. How was SCO supposed to know that it had to finish its experts analysis by December or which part of its experts' analyses it had to put on the table and which part it didn't need to? There were two deadlines, after all, one for allegedly infringed material and the other for expert reports, so how could SCO possibly figure out which was which? SCO could reasonably have thought it didn't have to tell it all until the second deadline. The problem with this argument is obvious -- the experts have not only further analyzed, they have expanded the case to include not only the entirety of the Linux kernel, from 326 lines of code on the table earlier, but they have introduced an entirely new theory of the case. That's not just further analysis, and it leaves IBM with no discovery having been conducted on any of the new materials that SCO was quietly keeping to itself or fell on after the deadline, depending on how gullible one chooses to be today. SCO's argument on this point ends with SCO saying that since it wasn't clear, you can't sanction us because we didn't get notice and notice is a requirement for a sanction to issue. SCO could have asked the judge for clarification, and it should have, if the orders were not clear.
10. SCO did obey the court's orders. It turned over all its list of allegedly misused materials. What it didn't turn over is "material in support of SCO's assertion that previously identified material was misused". There is a difference in SCO's Sophist's Universe. Here is the difference: IBM has argued that "allegedly misused material" means material that a party says has been misused. Au contraire! To SCO it means something entirely different, and if you can figure out what SCO is saying in that section, Section III on page 7, you win a prize.
That is where I gave up counting arguments, because none of them have the air of authenticity. That doesn't mean one of them might not work. The law is very much about process and procedure and dotting the i. If SCO can convince the court that an i got missed, it can perhaps prevail on a point. But only if the judge refuses to look at the big picture, and that is precisely what Judge Wells looked at: that, all sophistry aside, SCO didn't play fair in discovery, and it would prejudice IBM to let them get away with it.
Here's one part that puzzles me:
SCO argues, in response to IBM's Addendum A, Copyright Principles, that one doesn't have to hold the copyright to bring a copyright infringement action. One can just be the exclusive licensee:
With respect to the purported law set forth in IBM's Addendum A, moreover, a sampling of the substantive propositions set forth therein shows important errors and oversights:
IBM incorrectly says (at no. 1) that a party cannot assert copyright infringement over materials that it does not own. Under the copyright laws, an exclusive licensee of such materials can assert such claims.
Well. Do they mean SCO is an exclusive licensee? If not, what is the relevance? I'd like very much to see SCO prove it is an exclusive licensee. Perhaps they don't mean to say that. But if so, do explain why SCO must pay Novell. And explain how IBM isn't a licensee. Now, exclusive licensees may be able to bring copyright infringement lawsuits, but surely not when the actual copyright holder is standing right there telling them to cut it out. Novell says it holds the copyrights, it waives the claim, and has a contractual right to so waive. At a minimum, SCO would have to show that Novell can't make it stop. And of course, to SCO, that may be the beauty of the argument: if it is actually making this claim it would force the judge to wait to decide this motion until after Novell is decided. But then again, it could be SCO just threw that in without meaning for it to apply to SCO. In any case, IBM doesn't get to respond to that. This is the last word on this subject, unless it gets permission to file a sur-sur-sur-reply.
And there is another point raised. SCO argues that at the time it put its allegedly misused list on the table, there were no external compatibility requirements of other programs that would make the materials on the list unprotectable. Whatever can they mean?
Here's my favorite part of SCO's filing:
IBM then makes (at 22) the grave accusation that SCO has acted in bad faith, but there is no evidence to support that assertion....
Snort. Wheeze. Choke. Passes out.
Brent O. Hatch (5715)
HATCH, JAMES & DODGE, PC
David Boies (admitted pro hac vice)
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
Devan V. Padmanabhan (admitted pro hac vice)
DORSEY & WHITNEY LLP
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
Stuart Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
Attorneys for Plaintiff, The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
|THE SCO GROUP, INC.
MEMORANDUM IN FURTHER
SUPPORT OF ITS OBJECTIONS TO
THE MAGISTRATE JUDGE'S
ORDER ON IBM'S MOTION TO
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
TABLE OF CONTENTS
|TABLE OF AUTHORITIES
||SCO WAS NOT OBLIGATED BY DECEMBER 2005 TO HAVE ITS
EXPERTS FINISH THEIR ANALYSES OF THE MATERIAL THAT SCO IDENTIFIED
AT THAT TIME AS MISAPPROPRIATED
||THE COURT ORDERS DID NOT CLEARLY REQUIRE SCO BY
DECEMBER 2005 TO HAVE ITS EXPERTS FINISH THEIR ANALYSES OF THE
MATERIAL THAT SCO IDENTIFIED AT THAT TIME AS MISAPPROPRIATED
||SCO HAD IDENTIFIED BY DECEMBER 2005 THE MATERIAL
SCO ALLEGED TO BE MISAPPROPRIATED
||IBM's Arguments Regarding IBM's Interpretation of the Word
"Material" Do Not Provide Any Support for the Magistrate Judge's
||IBM's Arguments Regarding What Material SCO "Could Have"
Identified in the December 2005 Submission Are Incorrect.
||IBM HAS NOT SUFFERED ANY "INCURABLE PREJUDICE"
RESULTING FROM THE CONTENT OF SCO'S EXPERT REPORTS.
||There Is No Substantiation for IBM's assertion of
||The Record Belies IBM's Claim That SCO Spent "Years" Developing
The Theory of Copyright Infringement in Dr. Cargill's Report.
||IBM's Arguments Regarding the Work Necessary to Respond To Dr.
Cargill's Analysis Continue to Lack Any Basis.
||UNDER THE CIRCUMSTANCES AND GIVEN THE RECORD, THE
EXCLUSION OF THE EVIDENCE AT ISSUE IN SCO'S EXPERT REPORTS IS
TABLE OF AUTHORITIES
|Baystate Technology, Inc. v. Bentley Systems, Inc.,
946 F. Supp. 1079 (D. Mass. 1996)
|Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989)
|Computer Assocs. Int'l, Inc. v. Altai, Inc.,
982 F.2d 693 (2d Cir. 1992)
|Gates Rubber Co. v. Bando Chem. Indus. Ltd.,
9 F.3d 823 (10th Cir. 1993)
|Getaped.Com, Inc. v. Cangemi,
188 F. Supp. 2d 398 (S.D.N.Y. 2002)
|Mitel, Inc. v. Iqtel, Inc.,
124 F.3d 1366 (10th Cir. 1997)
|Mitel, Inc. v. Iqtel, Inc.,
896 F. Supp. 1050 (D. Colo. 1995)
|4 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 13.03[A][e] (2006)
Plaintiff, The SCO Group, Inc. ("SCO"), respectfully submits
this Sur-Surreply Memorandum in Further Support of its Objections
to the Magistrate Judge's Order of December 21, 2006, granting the
motion of Defendant, International Business Machines Corp. ("IBM"),
to Confine SCO's Claims to, and Strike Allegations in Excess of,
the Final Disclosures.
The parties have now argued back and forth, and back and forth,
on the propriety of the Magistrate Judge's Order. IBM's latest
volley confirms that neither IBM's arguments nor the record below
support the severe sanction the Magistrate Judge imposed. The
result would be the same even if, contrary to fact, IBM had spent
the considerable length of its surreply brief fairly confronting
the main arguments SCO has raised. IBM's efforts to avoid
addressing the merits of the evidence in support of SCO's claims
are apparent. In an effort at some brevity and to minimize further
redundancy, SCO organizes this Memorandum around the findings that
would be necessary to support the Magistrate Judge's Order, but
that find no support in the record or the facts.
IBM does not dispute that, pursuant to this Court's Order dated
November 29, 2006, the Court applies a de novo
standard of review here. (SCO Reply at 2.) IBM's mistaken assertion
(at 2) that the Magistrate Judge's Order "does not turn on a legal
conclusion that is contrary to law" is consistent with IBM's
failure to reconcile the inconsistency between the Order and the
controlling copyright law. (SCO Reply at 7-8; see also Part
I. SCO WAS NOT OBLIGATED BY DECEMBER 2005 TO HAVE ITS EXPERTS
FINISH THEIR ANALYSES OF THE MATERIAL THAT SCO IDENTIFIED AT THAT
TIME AS MISAPPROPRIATED.
The Magistrate Judge's Order confuses the obligation to disclose
misused material with the accumulation of supporting evidence and
with the theories of literal and non-literal infringement that are
naturally found in expert reports, and are clearly allowed by the
law in this Circuit. (SCO Reply at 3-10.)
IBM insists (at 3) that it has never argued "that the material
at issue should be stricken because SCO failed to 'complete' its
expert analyses in its Final Disclosures," but that is a straw man.
SCO does not argue that IBM made such an express statement, only
that the unavoidable substance and meaning of IBM's post
hoc arguments and of the Magistrate Judge's Order was to
create such a requirement.
In footnote 3, for example, IBM claims that "SCO inflates the
volume of the listed material," contending that SCO's
identification of JFS concerns only "10,374" lines of AIX code,
rather than 160,000 lines. IBM's argument begs the question. A
fundamental corollary to SCO's arguments in its Objections is that
in identifying JFS in its December 2005 Submission as material that
IBM has misused, SCO put at issue the approximately 160,000 lines
of AIX code comprising JFS. IBM can argue otherwise only by
presupposing that the Magistrate Judge's Order is correct.
Similarly, in footnote 4, IBM addresses SCO's discussion of the
record evidence showing that IBM sponsored and the Magistrate Judge
adopted a standard that goes well beyond this Court's requirement
that SCO identify by December 2005 the material that IBM misused or
misappropriated. Unable to deny the facts in the record regarding
the breadth of the Magistrate
Judge's Order, IBM insists that those facts "plainly relate to
'allegedly misused material'" and not other content in SCO's
experts' reports. The argument not only brushes aside the parties'
dispute regarding what constitutes such "allegedly misused
material," but also ignores the revealing discussion in the record
regarding the meaning and import of the Magistrate Judge's Order.
SCO argues that the Magistrate Judge created a new and overly broad
standard, illustrated by the Magistrate Judge's statement that if
"it wasn't disclosed" by the deadline on December 22, 2005, "then
it's out." There is nothing "plain" about that statement to support
SCO has further demonstrated that where the premise of the
Magistrate Judge's June 2006 Order and this Court's Order affirming
it is the requirement that SCO provide "version, file and line"
information about misused material, but where Tenth Circuit law
makes clear that such information is not part of SCO's legal theory
of copyright infringement, there is no sensible argument that the
July 2005 Order required disclosures of such theories of
non-literal infringement." (SCO Reply at 7-8.) It is true (as IBM
says) that the July 2005 Order does not address non-literal
infringement under the controlling law, but more to the point, the
Magistrate Judge and IBM interpreted and applied this Court's July
2005 Scheduling Order in such a way that the Order could not
have required SCO to disclose such theories by December 2005.
IBM confirms its failure to address the argument when it says
(at 8) that SCO's failure to identify the non-literal elements of
Dr. Cargill's analysis "at all" in December 2005 means that SCO's
argument "falls flat." In response to SCO's demonstration that this
Court's Order could not reasonably be read both to require SCO to
identify all material by version, file and line coordinates
and to identify the bases for non-literal information that
cannot be identified by
version, file and line coordinates under the controlling law,
IBM thus argues: SCO should have identified the bases for
non-literal infringement. If the argument makes no sense, it is
because IBM immediately acknowledges (at 8) that the foundation for
its argument is not this Court's July 2005 Order, but rather
IBM interrogatories. SCO has already shown, however, that where the
court has provided for a period of specific expert discovery,
including expert reports and depositions, and interrogatories touch
on expert issues, it is the specific period of expert discovery
that serves as the means of interrogatory responses. (SCO Reply at
16.) IBM declines to address this argument, choosing instead (at
12-13) to attack the straw man that SCO supposedly reserves the
right to identify additional evidence supporting its identification
of allegedly misused material "by way of deposition designations or
in its part of the final pretrial order." SCO has never made such
an argument, and it does not follow from the controlling precedent
that SCO has cited.
II. THE COURT ORDERS DID NOT CLEARLY REQUIRE SCO BY DECEMBER
2005 TO HAVE ITS EXPERTS FINISH THEIR ANALYSES OF THE MATERIAL THAT
SCO IDENTIFIED AT THAT TIME AS MISAPPROPRIATED.
IBM continues to offer its various characterizations of what the
July 2005 Scheduling Order required of SCO, and SCO has explained
why the inferences upon which those characterizations are based are
incorrect, but the main point remains that IBM cannot cite any
language in any Order clearly, expressly, or unambiguously (let
alone reasonably) requiring that all expert analysis of the legal
theory of copyright infringement had to be included in the December
2005 Submission. (SCO Reply at 7-8.) The reasonable interpretation
is to the contrary, because there were discrete dates for the
December 2005 Submission and the May 2006 Expert Reports.
In footnote 5, IBM illustrates two fundamental grounds for SCO's
Objections in this area. IBM acknowledges that not all "expert
analyses" had to be included in SCO's December 2005 Submission, but
maintains that such analyses could only "support claims as to
allegedly misused material and allegations of infringement
identified with specificity" in those Disclosures. One, no matter
how many times IBM argues to the contrary, there is no clear
distinction between the content of "expert analyses" and the
identification of "allegedly misused material"; there certainly is
not a distinction sufficiently clear to warrant the severe sanction
the Magistrate Judge imposed or to justify IBM's claims of bad
faith and sandbagging on SCO's part. Two, in trying to argue
otherwise, IBM has to resort to using language that does not appear
in this Court's July 2005 Scheduling Order: nowhere does that Order
say that SCO had to identify by December 2005 all facts and
analyses in support of SCO's "allegations of infringement." That is
IBM's language. IBM repeats the argument elsewhere in its surreply,
arguing (at 7) without any citation to any Court Order that it was
"perfectly clear" that SCO was obligated "to describe in detail its
allegations and evidence of infringement." IBM thus underscores the
post hoc requirement that SCO was supposedly
obligated to detail by December 2005 the content of its experts'
analyses of SCO's claims of infringement. The fact remains that
there is no sensible argument that SCO could have known from the
July 2005 Order even if, contrary to fact and the
evidence in the record, SCO had the completed expert analyses in
hand what part of an expert's Linux copyright analysis (for
example) would have to be disclosed in December 2005 as opposed to
in his expert report.
IBM's own attempt to illustrate SCO's supposed obligations
illustrates the foregoing fundamental error in IBM's arguments.
After announcing that the Court had made "perfectly
clear" what SCO was obligated to do, IBM says (at 7-8) it
follows that SCO was obligated "to explain in detail how, when and
why IBM supposedly infringed SCO's alleged copyrights with respect
to the allegedly misused material identified (e.g., by
shipping it to customer x, or contributing the code to Linux
file y)." Yet IBM makes this assertion without citation and
no such language appears in the July 2005 Scheduling Order.
In then arguing (at 8) that SCO should have at least tried to
disclose the non-literal elements of its legal theory of copyright
infringement, IBM presupposes that its accusations of "bad faith"
and "sandbagging" on SCO's part is truth that SCO had the
analysis of such elements in hand but decided not to disclose them,
or that SCO thought it was supposed to have completed such analysis
by December 2005 in the first place. And although IBM draws all the
inferences in its favor, the fact that SCO did not try to describe
the non-literal elements of its legal theory of copyright
infringement by December 2005 equally allows the inference that SCO
did not believe it was obligated to do so. As noted,
moreover, to the extent IBM cross-references its interrogatories in
making these arguments, SCO has demonstrated that where the court
has provided for a period of specific expert discovery, including
expert reports and depositions, and interrogatories touch on expert
issues, it is the specific period of expert discovery that serves
as the means of interrogatory responses. (SCO Reply at 16.)
IBM also continues to rely (at 24-26) on the Magistrate Judge's
June 2006 Order, but that Order adds nothing to the core question
of whether SCO's expert opinions, analyses and support constitute
"misused material" within the meaning of the July 2005 Order, and
of course the June 2006 Order could not have given SCO any notice
of what material it supposedly was obligated to include in its
December 2005 Submission. To the extent IBM argues that the June
constitutes any support for what was supposedly required of SCO,
that reliance ignores the fundamental requirement that a party in
SCO's position have been put on notice of what the court order at
issue required. (SCO Reply at 29-30.)
III. SCO HAD IDENTIFIED BY DECEMBER 2005 THE MATERIAL SCO
ALLEGED TO BE MISAPPROPRIATED.
There is a distinction between "allegedly misused material" and
"material in support of SCO's assertion that previously identified
material was misused," and the Magistrate Judge's Order fails to
acknowledge it. (SCO Reply at 6-7.)
A. IBM's Arguments Regarding IBM's Interpretation of the Word
"Material" Do Not Provide Any Support for the Magistrate Judge's
IBM accuses SCO (at 4) of "sophistry" and makes imaginative
reference to Through the Looking Glass, but there is no
substance to the accusation.
IBM first (at 4-5) re-orders the words in the July 2005
Scheduling Order and says that that "the term 'allegedly misused
material' is simply material that a party contends has been
misused." IBM uses as a supposed example of that tautology the fact
that in its summary judgment papers SCO noted that it "alleges
infringement of non-literal elements that pervade SVr4." The
quotation does not say that any material in SVr4 constitutes
allegedly misused material; it relates to SCO's legal theory under
the copyright law that the more recent versions of Linux infringe
on SCO's copyrights in SVr4. IBM argues in note 7 that Dr.
Cargill's report "is replete with allegations of improper copying
not mentioned in SCO's Final Disclosures," but that is merely
IBM's label for part of Dr. Cargill's expert analysis of why
Linux is substantially similar to SVr4.
IBM then says (at 5): "If the material at issue were not
'allegedly misused material', then SCO would have no reason to
object to the Order." This assertion is non-sensical: SCO has every
reason to object to the Order by virtue of its exclusion of entire
categories of SCO's experts analyses. For IBM to argue that the
very existence of SCO's Objections supports IBM's opposition to
those Objections is circular. In further contending (at 5) that SCO
would not "have any reason to seek to amend its Final Disclosures"
if the material at issue were not "allegedly misused material," IBM
chooses to ignore the entire premise of the Motion to Amend
namely, that if the Court were to decide that the material
at issue is "allegedly misused material," then SCO has
demonstrated grounds for the amendment.
IBM then argues (at 5-6) that SCO's decision not to enter into a
stipulation that IBM proposed is evidence that the excluded
portions of the expert reports constituted "allegedly misused
material" within the meaning of the July 2005 Order. The language
of the first draft stipulation that IBM proposed (1) ambiguously
adopted, in effect, IBM's argument that the reports of Mr. Rochkind
and Dr. Ivie included "new material," and (2) declined to
incorporate the questions surrounding Dr. Cargill's report at all,
thus undermining the utility of the stipulation. IBM responded to
SCO's efforts to cure such problems by proposing a stipulation that
only reintroduced, into the language of the stipulation, the
fundamental question of what SCO had or had not "specifically
identified in SCO's Final Disclosures." These proposed stipulations
would merely have insured a continued fight between the parties
regarding what the stipulation meant in saying that SCO would not
in the future "contend that such materials have been misused by
IBM." Did IBM mean that SCO could not rely on the material in
support of its expert analyses? That SCO could not separately cite
such "material" for any purpose
whatsoever? That such material could not constitute any part of
SCO's theory of damages? Or that SCO just could not literally say
to the Court or the jury that certain "material" has been "misused
by IBM"? There were no clear answers to these questions forthcoming
from IBM. What did become clear in the negotiations of the
stipulation was the stipulation IBM was willing to sign would have
created at least as many problems as it solved.
B. IBM's Arguments Regarding What Material SCO "Could Have"
Identified in the December 2005 Submission Are Incorrect.
IBM insists (at 9) that SCO could have identified the
non-literal elements of its analysis of Linux copyright
infringement by source code coordinates, but in doing so fails to
address SCO's showing since its Opening Memorandum (as at 12-14)
that under the controlling Tenth Circuit analysis, IBM is wrong.
Instead of addressing that case law, IBM points to evidence in the
record merely confirming that the "source code" level of
abstraction under the controlling law, see, e.g., Gates
Rubber Co. v. Bando Chem. Indus. Ltd., 9 F.3d 823, 835 (10th
Cir. 1993), is among the "necessary and reasonable evidence" for
SCO to "support its claims and to oppose IBM's Tenth Counterclaim."
There are of course multiple levels of abstraction under that
IBM claims (at 9-10) that "SCO acknowledged that the material
subject to any allegation of infringement can be identified
by version, file and line information, regardless of whether the
alleged infringement is said to be line-by-line literal
infringement or non-literal infringement." For support, IBM points
(at 10) to SCO's statements from 2004 indicating that it would
engage in a line-by-line analysis of UNIX and Linux to in order to
"obtain all necessary and reasonable evidence to support is
claims." This statement has nothing to do with whether infringed
non-literal elements can be identified by pointing to version,
file, and line number. Rather, SCO
stated that a comprehensive analysis would be necessary to
obtain as much evidence of infringement as possible and determine
the scope of its copyright infringement claims.
IBM further argues (at 10) that Dr. Cargill "actually discussed
some of the non-literal elements at issue by version, file and line
information," and refers to segments of source code included in Dr.
Cargill's report. IBM misunderstands Dr. Cargill's references to
literal source code. IBM cites to a portion of Dr. Cargill's first
report in which Dr. Cargill refers to segments of ELF-related
source code as evidence that Linux uses and incorporates the
non-literal ELF material, not as identification of the
infringed non-literal ELF material itself. The ELF-related source
code at issue is equivalent to a sign saying "this system uses the
non-literal ELF material at issue," but does not actually
constitute the non-literal material at issue. IBM further quotes
Dr. Cargill as stating "[t]he chosen names are associated with the
numbers by expressing the arrangement in source code header files,"
where IBM apparently intends to imply that this "arrangement" is
the "arrangement" of elements within UNIX as a whole that is copied
in the Linux operating system. Rather, as shown by the context of
Dr. Cargill's report surrounding this quoted sentence, the
"arrangement" discussed by Dr. Cargill is merely the association of
values with signal names expressed within a header file. Notably,
the source code referenced in this section of Dr. Cargill's report
was included in SCO's December 2005 Submission. (Item 184 of the
Submission.) The fact that arrangement of source code within a
single header file can be shown by reference to such source
code is irrelevant to whether the selection, coordination, and
arrangement of various elements within the UNIX operating system as
a whole can be shown by pointing to literal bits of source code.
IBM's effort (at 10-11) to analogize the issues presented here with
the question of identifying methods and concepts at issue in a
previous motion is thus
unfounded, where the controlling Tenth Circuit law regarding the
non-literal aspects of the analysis of copyright infringement was
not at issue in the prior briefing. In that plain sense, SCO's
arguments here are not the "attack" on the Court's November 2006
Order that IBM (at 11 n.15) makes them out to be. (See also
Part IV, below.)
IBM goes on (at 12-13) to accuse SCO of inconsistent arguments
with respect to the excluded material in the reports of Evan Ivie
and Marc Rochkind, but IBM misapprehends SCO's argument. SCO has
explained that the excluded material is supporting material that
provides additional bases to support SCO's allegation that the
material SCO clearly identified in the December Submission, such as
JFS and the Testing Suites, was in fact misused. As SCO made clear
with respect to JFS, for example, SCO satisfied the Court Orders by
identifying all of JFS in Item I of the December 2005 Submission,
and then "went beyond that identification to provide the
information it had at that time to support the point that JFS was
derived from UNIX System V." (SCO Reply at 10 (emphasis added).)
The supporting evidence demonstrating that JFS is a derivative does
not reasonably constitute "allegedly misused material."
IV. IBM HAS NOT SUFFERED ANY "INCURABLE PREJUDICE" RESULTING
FROM THE CONTENT OF SCO'S EXPERT REPORTS.
IBM's assertion of "incurable prejudice" continues to lack
foundation, including where IBM failed to substantiate the
assertion, IBM now seeks time and discovery constituting a windfall
for IBM, and IBM could have avoided the asserted prejudice, and
because with respect to Dr. Cargill's analysis in particular. (SCO
Reply at 14-17.) IBM does not refute these points. Instead, in
seeking an extra year to analyze SCO's experts reports, IBM seeks a
post hoc revision to the scheduling order that amounts to a
windfall for IBM.
A. There Is No Substantiation for IBM's assertion of
IBM previously said that SCO's evidence was disclosed six months
after the close of fact discovery, but made no effort to explain or
illustrate any particular "fact discovery" it supposedly needed to
analyze any of the evidence at issue. IBM also argued that the
evidence was disclosed "simultaneous with the filing of initial
expert reports, on the eve of the due date of IBM's opposing expert
reports," but made no effort to show that its experts tried but
could not respond to SCO's evidence or to substantiate its claim
that the experts could not have analyzed the evidence in a matter
of weeks. (SCO Reply at 14.) IBM now says that Addendum A
identifies the discovery IBM would have taken, but IBM did not even
undertake such discovery with respect to the material SCO
identified in its December Submission. IBM also has no answer to
the fact under the July 2005 Order on which the Magistrate Court's
Order turns, IBM would have had only three months of fact discovery
following the December Submission, not a year. Nor has IBM
substantiated its newly minted reliance on the list of questions in
Addendum A. The IBM expert offers nothing more than the conclusory
statement (at 18) that "substantial time and effort would be
required to fully evaluate the new material that Dr. Cargill
identifies as misused." The statement is practically meaningless;
the expert could mean that he could finish such work in a month.
IBM is thus left with making the same conclusory assertions, such
as its statement that it is "plain" that reviewing "all of the
files in Linux" which, as shown below, is not something IBM
would even have to undertake to do "would require a very
With respect to the purported law set forth in IBM's Addendum A,
moreover, a sampling of the substantive propositions set forth
therein shows important errors and oversights:
The foregoing examples alone demonstrate that IBM's reliance on the
Addendum is no basis for its arguments against SCO's Objections.
IBM incorrectly says (at no. 1) that a party cannot assert
copyright infringement over materials that it does not own. Under
the copyright laws, an exclusive licensee of such materials can
assert such claims.
IBM incorrectly says (at no. 2) that the plaintiff bears the
burden of showing it is the author of the copyrighted material. The
plaintiff need show only that it owns or is the exclusive licensee
of the copyrighted material. The case IBM cites, Community for
Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989), does
not make any pronouncement regarding the burden a plaintiff must
meet to establish infringement.
IBM says (at no. 3) that a defendant does not infringe if it has
a valid license to exercise those rights are claimed to be
infringing, but SCO has already shown that the licenses IBM claims
to have are not valid and/or do not cover IBM's Linux
IBM cites (at no. 5) Mitel, Inc. v. Iqtel, Inc., 896 F.
Supp. 1050, 1055 (D. Colo. 1995), for the proposition that material
that is a procedure, process, system or method of operation is
unprotectable, but the Tenth Circuit in Mitel, Inc. v. Iqtel,
Inc., 124 F.3d 1366 (10th Cir. 1997), overturned the
proposition that literal expression could be deemed an
unprotectable "procedure, process, system or method of
IBM cites (at no. 8) Baystate Technology, Inc. v. Bentley
Systems, Inc., 946 F. Supp. 1079, 1087-88 (D. Mass. 1996), for
the proposition that material that can be expressed in only a
limited number of ways is unprotectable, but Baystate relied
that proposition on a First Circuit opinion that the Tenth
Circuit expressly rejected in the Mitel case.
IBM says (at no. 9; see also nos. 10, 11, 12 & 13)
that material that is dictated by the compatibility requirements of
other programs with which it is designed to interact is
unprotectable, but IBM has put forth no evidence of such external
constraints at the time the infringed material that SCO has
identified (including its December 2005 Submission), whereas SCO
has put forth substantial evidence that there were no such external
IBM cites (at no. 16) Getaped.Com, Inc. v. Cangemi, 188
F. Supp. 2d 398, 404 (S.D.N.Y. 2002), that to claim non-statutory
damages for copyright infringement, a plaintiff must show that it
was injured by the alleged infringement, but that case refers to
disgorgement of defendant's profits attributable to the
infringement as "non-statutory" damages, and does not
indicate that a showing of actual harm is necessary to obtain
disgorgement of defendant's profits.
IBM also previously said that the evidence at issue was
disclosed "when summary judgment briefs were forthcoming," but SCO
pointed out that it produced its initial expert reports four
months before those motions were due, and IBM never asked to
delay their filing. (SCO Reply at 14.) In response, IBM offers (at
18-19) an explanation for why it chose not to seek more time to
file those motions, but that is not the point. The point, which IBM
does not and cannot deny, is that it had four months
in which to analyze and try to refute the material in
SCO's expert reports prior to filing its motions. There can be
no "incurable" prejudice where IBM had the time to address the
material at issue but deliberately chose not to do so.
B. The Record Belies IBM's Claim That SCO Spent "Years"
Developing The Theory of Copyright Infringement in Dr. Cargill's
IBM also previously said that "SCO had spent more than three
years developing its theory of infringement," but the record does
not support that assertion with respect to Dr. Cargill's opinions
in particular. The record shows that as of early 2005, SCO did not
even regard itself as having brought a copyright claim in this
case. (See, e.g., SCO's Opening Mem. at 18.) IBM now says
(at 19) the proof that SCO spent three years developing that theory
is "a plethora of public statements since 2003 regarding its claim
that Linux infringes SCO's copyrights." The statements at issue in
the articles that IBM cites do not support IBM's argument with
respect to Dr. Cargill's work, and in several instances directly
refute IBM's argument:
Ex. 368. This article confirms the view of SCO CEO Darl
McBride as of June 2, 2003, that SCO's pending claims did
not concern the issue of copyright violation: "McBride said
SCO's claims center on its contracts giving companies the
right to build Unix software, and not on copyrights or patents.
'That has zero percent to do with any current claims that we have
in the marketplace,' he said. (Emphasis added.)
Ex. 478. This article from the same date as Exhibit 368
quotes Mr. Sontag referring to the code that SCO had identified,
drawing a plain distinction between code constituting "a direct
copyright violation" and the code underlying SCO's contract claims,
and stating that the "large blocks of code" in SCO's hands at that
to the contract claims. Responding to the question "How
many lines of code in the Linux kernel are a direct copyright
violation?," Mr. Sontag is quoted: "It's very extensive. It is many
different sections of code ranging from 5 to 10 to 15 lines of code
in multiple places that are of issue, up to large blocks of code
that have been inappropriately copied into Linux in violation of
our source-code licensing contract." (Emphasis added.)
Ex. 480. This article from July 2003 quotes Mr. McBride
as referring to "how much code is infringing" in Linux in the
context of the IBM lawsuit, and thus plainly refers to SCO's
contract claims, not any theory of copyright infringement with
respect to a claim that SCO had not even brought.
Ex. 367. This article quotes Mr. McBride as stating in
August 2003 that SCO's experts "have found already a mountain of
code" and that the "DNA of Linux is coming from Unix." Later in the
article, SCO vice-president Chris Sontag makes clear that Mr.
McBride's reference to "Unix" encompasses the material in the
UNIX-derivative works that are the basis for SCO's contract
claims: "Sontag also said thousands of lines of Unix have made
their way into Linux in the form of derivative works that should
have been bound by SCO licensing agreements that require licensees
to keep the code secret," and the article refers to "829,000" lines
of such code in the form of SMP.
Ex. 383. This article from three days after Exhibit 367
refers to same substantial volume of code referenced in that
article, and thus again refers to code underlying SCO's contract
claims, not any copyright claim.
The foregoing record thus makes clear that SCO did not spend more
than three years developing Dr. Cargill's theory of infringement.
Indeed, Dr. Cargill testified at deposition that he had spent only
approximately 400-500 hours writing all three of his expert
reports. The record thus puts the lie to IBM's repeated assertion
that Dr. Cargill's expert opinion on substantial similarity
"reinvents" SCO's case from what it was in 2003, 2004, or 2005. It
should be self-evident (as IBM says) that where SCO spent only
months developing the analysis of substantial similarity at issue,
it would have required IBM and its experts only months to respond.
Ex. 372. This article from two weeks after Exhibit 367
refers exclusively to SCO's "trade secrets-reach of contract suit
against IBM" and thus plainly refers back to the contract claims in
referencing SCO's "claim that IBM misappropriated IP from the Unix
operating system that SCO now owns and put it in Linux."
Ex. 479. This article from the same day as Exhibit 372
references Mr. McBride's understanding that there was Unix System 5
code "showing up directly inside of Linux" and then repeatedly
quotes him as explaining that SCO's claims against IBM were
contract claims and as stating expressly that his surprise at IBM's
and Novell's cooperation because "we didn't have any copyright
claims in our case with IBM" and "when we filed against IBM, we
chose to not even talk about copyrights."
C. IBM's Arguments Regarding the Work Necessary to Respond To
Dr. Cargill's Analysis Continue to Lack Any Basis.
IBM has argued that Dr. Cargill's legal analysis requires
"line-by-line analysis," but SCO pointed out that Dr. Cargill's
report and the controlling Tenth Circuit law make clear that no
such analysis is even appropriate, let alone required. (SCO Reply
at 14.) In pressing the
argument, IBM misapprehends SCO's theory and the relevant law,
and ignores the nature of the work its own experts have already
undertaken. SCO addresses this assertion in detail in its
suresurreply memorandum in support of its Motion to Amend. Suffice
it to say here that where IBM now leans heavily on a parade of
horribles regarding the work supposedly required, IBM's own
experts did not undertake the file-by-file analysis that IBM
now says would be necessary work to try to rebut SCO's theory.
IBM also previously said that SCO's claim of Linux infringement
was a "newly minted allegation" as to which IBM was forced to
proceed "without the benefit of discovery," but IBM regarded SCO as
having brought a claim that Linux is substantially similar to UNIX
System V under the copyright laws. (SCO Reply at 14-15.) IBM admits
this fact (at 20-21), and in continuing to take issue with the
timing of Dr. Cargill's analysis only repeats the logical errors
inherent in its underlying Motion and the Magistrate Court's Order.
In arguing (at 21 & n.21) that SCO had been ordered to
"disclose its evidence" and could not "properly omit that material
from its Final Disclosures," IBM again presupposes that as of
December 2005, SCO had the details of Dr. Cargill's non-literal
theory of copyright infringement prepared and ready for
distribution. It did not. In this sense again, IBM's position thus
reduces to the position that SCO was obligated to have had its
experts complete such copyright work by December 2005, and
that the July 2005 Order made clear that SCO would have to
complete that work by that time. SCO has repeatedly shown in detail
how neither of those positions is correct or forms a legitimate
basis for the Magistrate Court's Order.
IBM also now tries to disclaim any intent to obtain the windfall
that its request for an additional year of discovery would
constitute. IBM says at bottom (at 22) that it based its
request for three months of post-December 2005 Submission
discovery on the grounds that when IBM sought the deadlines that
were embodied in the July 2005 Order, "SCO had disclosed absolutely
no evidence of infringement by Linux." The argument ignores the
fact that as of early 2005, SCO did not believe it had even
brought a claim turning on "infringement by Linux." IBM's
implication of sandbagging and intentional disregard of Court
Orders (as a 22 & n.22) is wrong. And the record shows that
IBM's request for three months of fact discovery following the
December 2005 Submission, and six months of expert work following
that, were reasonable estimates of time IBM would need to respond
to all of SCO's evidence and theories of infringement. For IBM to
respond to the Linux copyright analysis would take only part of
that time a few months, not a year.
IBM finally continues to avoid the meaning and substance of the
nine cases SCO cited demonstrating that IBM's opportunity to depose
SCO's experts on the material at issue defeats the argument that
IBM has suffered prejudice sufficient to justify the exclusion of
that material. IBM says only (at 23) that those cases are different
because they involve different facts. But if it could, IBM would
actually analyze the holdings in these cases and distinguish them.
It is not responsive to this doctrine for IBM to say that its view
at the time was that "SCO was not permitted to challenge this new
material." At issue in the cited precedent is not the requirement
of any court order, but rather whether the party could have avoided
the prejudice it now claims to suffer. The fact is that the cases
reflect a well-established and well-reasoned proposition that
independently defeats the claim of "incurable prejudice" that IBM
tries to bootstrap onto its express decision not to ask SCO's
experts about information that IBM and its experts had had months
to analyze and try to refute.
V. UNDER THE CIRCUMSTANCES AND GIVEN THE RECORD, THE
EXCLUSION OF THE EVIDENCE AT ISSUE IN SCO'S EXPERT REPORTS IS
IBM's continued argument that SCO has "waived" its arguments
regarding "substantial justification" under Rule 37 reveals the
extent of IBM's reluctance to address the merits of the argument.
And the gist of IBM's "waiver" argument is confounding. IBM does
not dispute that SCO addressed all the elements of the "substantial
justification" analysis before the Magistrate Court. (SCO Reply at
11-12.) Instead, IBM complains (at 16-17) that SCO did so, in part,
in a footnote. If this Court need not acknowledge arguments
presented in footnotes, then it is not at all clear how IBM
proposes the Court should treat the thirty-three footnotes in IBM's
latest brief purporting to tackle several of SCO's arguments on the
merits, or IBM's argument (at 16 n.18) that "any additional delay
in these proceedings would have been prejudicial to IBM," which is
an argument IBM makes in a footnote.2
IBM's secondary attempts to respond to the merits of SCO's
arguments regarding its "substantial justification" are similarly
unavailing. IBM ignores SCO's primary argument, which is that SCO
"had reasonably concluded that the analyses and supporting evidence
that have been excluded were appropriately included in the expert
reports, and that there was at the very least a genuine dispute
between the parties on that question." (SCO Reply at 12-13.) SCO
expounded on that point in its Reply Brief by explaining that
"among the fundamental questions at issue is whether the material
the Magistrate Judge has excluded actually qualifies as such
material" (id. at 13), and reiterating its view that it does
not. IBM remains unable to cite any
authority for the proposition that where the parties have a
genuine dispute regarding the meaning of the court order at issue,
the failure of one party to comply with the order as ultimately
interpreted merits sanctions, let alone the drastic sanction the
Magistrate Judge imposed.
IBM then argues (at 14-15) that there can be no contrast between
the Linux material identified in SCO's December Submission and Dr.
Cargill's analysis in his expert report, because an expert in Dr.
Cargill's position is not even permitted to undertake such a
non-literal analysis of substantial similarity, and that the
elements of Dr. Cargill's analysis are no different than the
"methods and concepts" at issue in IBM's prior motion to limit
SCO's claims. This argument is central to IBM's brief, and it is
wrong. The leading treatise on copyright law recommends the
consideration of expert testimony "to determine substantial
similarity of computer programs." 4 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright § 13.03[A][e], at 13-152
(2006). The treatise makes clear that its use of the term
"substantial similarity" in the foregoing section refers to
"actionable copying as a legal proposition." Id. §
13.03[A], at 13.34.1. In addition, the Tenth Circuit has held the
See also Computer Assocs. Int'l, Inc. v. Altai, Inc.,
982 F.2d 693, 712-23 (2d Cir. 1992) (accepting and approving expert
testimony on the issue of substantial similarity and copying and
whether such copying is actionable or illicit). IBM's
misapprehension of this controlling law is
"Once [facts] are gathered and expert testimony is heard, the
court can then analyze which portions of the program according to
the expert testimony, infringes the protected expression." Gates
Rubber, 9 F.3d at 833 n.7.
"Indeed, in most cases we foresee that the use of experts will
provide substantial guidance to the court in applying an
abstractions test." Id. at 834-35.
"Ordinarily, expert testimony will be helpful to organize a
particular program into various levels of abstraction." Id.
crucial not only because it reveals IBM's error in claiming
impropriety in Dr. Cargill's analysis, but also and more to
the point for these Objections it underscores that SCO had
reasonably concluded that such analysis for its experts,
not for the December 2005 Submission.
IBM then makes (at 22) the grave accusation that SCO has acted
in bad faith, but there is no evidence to support that assertion,
the Magistrate Judge did not cite any, and SCO clearly argued below
that the Magistrate Judge was obligated to consider whether any
such evidence existed. (SCO Reply at 6-7, 11-12; see also
Part II, above.) The main premise of IBM's argument that
SCO had evidence in hand as of December 2005 that it decided not to
disclose finds no support anywhere, including in any of the
depositions of SCO's experts. The apparent secondary premise of the
argument that SCO supposedly thought it might have to
disclose more than it did in December 2005 and so waited to have
its experts address certain issues until early 2006 also
lacks any foundation. The language of the Orders at issue did not
put SCO on notice that it had to identify by December 2005 the
entire sum of evidence supporting IBM's misuse of the material
identified in the December 2005 Submission.
IBM finally insists in a footnote (at 22 n.22)
that its claim of "litigation by ambush" and of the "flouting of
discovery deadlines" supports IBM's claim of prejudice, but
misapprehends SCO's point. IBM does not establish any prejudice
merely by using such heated language to describe the disclosure of
analyses that SCO reasonably believed was timely disclosed, that
SCO continues to believe was timely disclosed, and that IBM had
every opportunity to address itself and to have its expert
SCO respectfully submits, for the reasons stated above and in
SCO's previous memoranda, that the Court should reverse the
Magistrate Judge's Order and permit SCO to proceed with all
theories of liability disclosed in its expert reports, including
copyright infringement based on both literal and non-literal
elements of the copyrighted works as well as the selection,
arrangement, and coordination of elements in the copyrighted
DATED this 11th day of May, 2007.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stuart H. Singer
Stephen N. Zack
DORSEY & WHITNEY LLP
Devan V. Padmanabhan
Counsel for The SCO Group, Inc.
By: ___/s/ Edward Normand___________
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc., hereby certifies that a true and
correct copy of the foregoing SCO's Sur-Surreply Memorandum in
Further Support of its Objections to the Magistrate Judge's Order
on IBM's Motion to Confine was served on Defendant, International
Business Machines Corporation, on this 11th day of May, 2007, via
CM/ECF to the following:
David Marriott, Esq. ([email address])
Cravath, Swaine & Moore LLP
Todd Shaughnessy, Esq. ([email address])
Snell & Wilmer LLP
/s/ Edward Normand
||IBM draws (at 18) a false comparison between the time SCO
estimated it would take the company to identify all of the UNIX
technology in Linux and the time it would take IBM to analyze such
UNIX material once SCO had done the work of identifying it. By
definition the second task is only a subset of the first one, and
it involves only a tiny fraction of the code at issue in the first
task. As discussed more thoroughly in SCO's Sur-Surreply Memorandum
in support of its Motion to Amend, IBM's repeated assertion that
SCO's expert reports implicate "every file in Linux," and that IBM
would therefore have to analyze "every file in Linux," are simply
||Contrary to IBM's suggestion (at 13 n.16), SCO does not argue
that IBM invoked "Rule 37" for the first time in oral argument, and
does not dispute that IBM cited that Rule (among several others) in
its underlying motion itself. The fact is that IBM's memorandum in
support of that motion does not clearly rely on or enumerate the
relevant factors bearing on a sanction under Rule 37. (SCO Reply at