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IBM's "Complete Defense" To Any SCO Claim of Copyright Infringement - Transcribers Needed
Monday, July 12 2010 @ 06:09 AM EDT

Back in 2006, IBM filed a document in the SCO v. IBM litigation that includes five reasons IBM told the court it has what it called "a complete defense" to any SCO claim of copyright infringement, even if SCO had any UNIX copyrights, which a jury in Utah has just ruled it doesn't.

It talks about ELF, Streams, all the oldies and goodies, the claims that survived Magistrate Judge Brooke Wells's order granting IBM's motion to limit SCO's claims as a sanction. Most of SCO's list of allegedly infringed materials, filed by SCO under seal, was tossed for lack of specificity. It wasn't a long list, in any case, as you will see, judging from IBM's math.

I just noticed we never did this memorandum as text. Can anyone help by doing an OCR for us, so we can add it to our collection on Groklaw? Before you say yes, it's long, in two parts, IBM's Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-infringement (IBM's Tenth Counterclaim}:

Part 1
Part 2
Even the title is long. If the SCO v. IBM case gets resurrected, unlikely but conceivable as long as SCO's appeal in the Novell litigation is still pending, it will be important to have this as text. It was never ruled on because SCO filed for bankruptcy, and everything got put on a back burner. In any case, it's important for history.

Here's a sample:
In its final disclosures (the "Final Disclosures"), SCO identified 294 items of allegedly misused material. However, only 68 of them concern allegations of infringement relating to Linux, and only 52 of those survived the Court's June 28, 2006, order limiting SCO's proof. The 52 items at issue (the "Items") identify four allegedly infringed UNIX copyrights (UNIX System V Release 3.2, UNIX System V Release 4.0, UNIX System V Release 4.2, and UNIX System V Release 4.2-ES-MP) (the "System V Works"). The Items also identify three types of allegedly infringing material: (1) header file code that is either dictated by the Single UNIX Specification (the "SUS Material") or relates to a technology known as Streams (the "Streams Material")2; (2) code relating to the ELF Specification (the "ELF Material"); and (3) less than 25 lines of memory allocation coe, which were removed from Linux before IBM filed its Tenth Counterclaim.

Most of this material is not even in the Linux kernel, which is the subject of the Tenth Counterclaim and this motion. In fact, only 12 of the Items relate to the Linux kernel. Those 12 items concern 326 lines of Linux code (the "Linux Code") that are alleged to infringe 320 lines of UNIX code (the "System V Code") from the System V Works (collectively, the "Disputed Code"). In short, despite SCO's public claims of there being more than one million lines of infringing code in Linux, the Final Disclosures identify no more than 326 lines of supposedly infringing code in the kernel. The Disputed Code represents less than five one-thousandths of a percent (.005%) of the System V Works.3

SCO's claims of infringement fail as a matter of law for at least five independent reasons, any one of which justifies the entry of summary judgment in favor of IBM.

First, SCO cannot establish unauthorized copying by IBM of copyrighted works owned by SCO. From the beginning of this case, IBM asked SCO to disclose its allegations and evidence of alleged infringement, and from the beginning of this case, SCO declined. The Court entered two separate orders requiring SCO to disclose its allegations and evidence with specificity. Even then, SCO failed to do so, requiring the Court to enter an order setting a final disclosure deadline. Even in the face of that order, SCO failed to describe in any meaningful way -- let alone in detail, as specified by the Court -- its allegations and evidence of infringement by IBM. SCO cannot establish that it owns copyrights in the System V Code. Nor can it show that IBM copied the System V Code without authorization. Nowhere, in fact, has SCO ever specified or substantiated its allegations that IBM's Linux activities infringe SCO copyrights -- not in its Final Disclosures, not in its interrogatory answers, nowhere. Having failed to substantiate its claims as ordered by the Court, SCO cannot make out its claims of infringement and IBM is entitled to summary judgment. (See Part I below.)

Second, IBM has a license to use all of the Linux Code and, as to much of it, multiple licenses. In 1999, SCO's predecessor in interest, Caldera Systems, Inc. ("Caldera Systems"), expressly granted IBM a license to the material in its Linux products as a part of a Strategic Business Agreement. Caldera also granted IBM a license to the material in its Linux products, pursuant to the GNU General Public License (the "GPL"). All of the Linux Code is included in one or more of SCO's Linux products, giving IBM a license to all of it. Moreover, even earlier in the 1990s, two of SCO's other predecessors in interest, Novell, Inc. ("Novell") and The Santa Cruz Operation, Inc. ("Santa Cruz"), granted IBM licenses to most of the UNIX code. Novell granted IBM a license to all of the SUS Material, and Novell and Santa Cruz granted IBM a license to all of the ELF Material. Thus, IBM has a complete defense to all of SCO's claims of infringement. (See Part II below.)

Third, SCO is estopped from pursuing its infringement claim. The Linux Code has been in Linux since long before the commencement of this claim. Some of it has been in Linux from its inception in 1991. SCO and its predecessors not only knew the Linux Code was in Linux, they are responsible for much of it being there. Knowing that the Linux Code was in Linux, SCO promoted Linux and urged IBM and others to embrace it, with the intent and expectation that they would do so. Not knowing that SCO would change its position and declare war on Linux after nearly a decade of promoting it, IBM built a part of its business around the operating system. Allowing SCO now to reverse course would result in severe damage to IBM and countless others. Under basic principles of equity, SCO is estopped from pursuing its claims of infringement, which it also abandoned and waived long ago. (See Part III below.)

Fourth, SCO cannot prove substantial similarity between the Linux kernel and the System V Works, which is equally fatal to any claim of copyright infringement. SCO cannot establish a claim of copyright infringement absent a showing that the Linux Code makes Linux substantially similar to protectable elements of the System V Works. None of the System V Code is protectable by copyright. Among other things, it (1) represents mere ideas, processes, systems, methods of operation, concepts, principles or discoveries; (2) can be expressed in only one or a few ways; and (3) is dictated by externalities such as hardware standards, software standards, compatibility requirements, computer manufacturer design standards or industry programming practices. Even if (contrary to fact) all of the System V Code were protectable by copyright, it could not render the Linux kernel substantially similar to the System V Works because the Disputed Code represents a trivial portion -- less than five one-thousandths of one percent (.005%) -- of the most cited of the System V Works and is qualitatively insignificant. No reasonable trier of fact could find that the Linux kernel is substantially similar to the System V Works. (See Part IV below.)

Fifth, SCO cannot enforce its alleged copyrights in the System V Works because it has misused them, further precluding its infringement claim. A copyright holder cannot enforce a copyright that has been misused. A copyright holder misuses its copyright when it exceeds the scope of rights granted by the copyright. SCO exceeded the scope of the allegedly infringed copyrights by: (1) claiming ownership over code for which SCO has no copyright, (2) effectively asserting rights to all of Linux, (3) claiming control of IBM's own copyrighted code, (4) claiming ownership over material not protectable by copyright, and (5) seeking to enforce the copyrights in the System V Works in ways in which they are unenforceable. (See Part V below.)

_____________

2 A "header file" is a computer-readable text file that describes how information is to be shared among components of a program and/or between a program and other programs. Header files are created for the purpose of communicating information in a standardized way to allow interoperability.

3 This motion is limited to the allegedly misused material specifically identified by SCO in the Final Disclosures. We do not separately address the materials struck by the Court's order of June 28, 2006. Nor do we address the materials identified by SCO for the first time in its expert reports. The Court has made clear that these items are not part of the case.

If that doesn't inspire you to help out, I can't imagine what could. If you can help, sing out, leaving a comment so others don't duplicate your effort and then email me your finished work. If you can only do a certain number of pages, that's fine. I can stitch all the pieces together. Extra points for a clean HTML, following the style I just used, but even a messy OCR would help get the project going. This is just too big a hole in our collection not to get this done at last.

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