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Caldera Government IBM Linux Business The Courts News

IBM Files for Partial Summary Judgement vs SCO 367

Posted by CmdrTaco from the you-look-good-in-your-legal-briefs dept.
Armchair Dissident writes "The Register is reporting that IBM has filed for partial summary judgement against SCO. Groklaw also has the story, and is saying that SCO was still offering the disputed code for download as recently as August 4 2004. If this is true, then - according to Groklaw - SCO's case must surely be scuppered. Again."
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IBM Files for Partial Summary Judgement vs SCO More

IBM Files for Partial Summary Judgement vs SCO

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  • Pay your $699 fee, and shut up!

    • Re:Don't be so cheap, everyone (Score:5, Informative)

      by Xenographic ( 557057 ) on Tuesday August 17, 2004 @12:42PM (#9992430) Journal
      Didn't you read? They're planning to raise their prices.

      Anyhow, I submitted something just like this, only with about a dozen links to more information (sadly, I don't have all of them here now), so perhaps I can explain more --

      This motion follows IBM's motion to strike Sontag's declaration as incompetant (he doesn't know jack about IBM's internal source controls, but he made a number of wild guesses and swore to them under oath), as well as IBM's movement for a declaration of non-infringement concerning their Linux activities. It is ironic on the last part that SCO doesn't want to let them have one, and it says at the same time that they're not arguing that IBM has infringed on their copyrights now.

      I'd link those motions, but I don't have time. They can all be found on Groklaw's legal documents page [groklaw.net]. Just be sure you're looking at the SCO vs. IBM part, and that you start at the bottom & scroll up--both SCO's complaint & IBM's counter-claims have changed over time, and you want the most recent version.

      If they were to grant all of IBM's motions, they would be enough to rend pretty much all Linux-related issues from this case, and would leave SCO with almost nothing that could stand on its own and SCO would still face the counter-claims.

      Of course, the judge has to be really strict on granting summary judgements. There have to be no material (relevant) issues of fact to decide--the evidence has to be so one-sided that no rational trier of fact could possibly decide for SCO on any of the issues the judge decides. This is important because the judge rules on the law, while the jury rules on the facts in any jury trial. If you can't guess from that, a summary judgement is where the judge gets to decide an issue early because there are no material issues of fact for a jury to decide.

      In other words, though IBM's motions are well-argued, they face a *very* high standard of law here. Please note that while Enderle has said that he would decide for SCO, that's irrelevant because the trier of fact would have to be rational, and logic is not Enderle's strong suit [fallinggrace.com].

      • A text-book case. (Score:5, Insightful)

        by biendamon ( 723952 ) on Tuesday August 17, 2004 @04:54PM (#9995207)
        That logical critique of Enderle's keynote belongs in a text-book. It is systematic and devastating. Nothing I can say will do it justice, so I'll just recommend that Slashdot readers interested in logical argument construction (and deconstruction) read the piece. It's long, but well worth it.

  • Even if they offer a "download" (Score:2, Interesting)

    by Anonymous Coward
    Even if they offer a "download" of the disputed code, how do we know they didn't just copy some random code which did exist in the kernel?

    • Re:Even if they offer a "download" (Score:5, Informative)

      by meringuoid ( 568297 ) on Tuesday August 17, 2004 @10:08AM (#9990655)
      Even if they offer a "download" of the disputed code, how do we know they didn't just copy some random code which did exist in the kernel?

      If they offered their disputed code for download as part of SCO Linux, then they put it under the GPL themselves.

      Their get-out for this is 'we didn't know our code was in Linux!', which might have been a case for them... if they didn't carry on making Linux available after they supposedly discovered their code in it.

      By leaving SCO Linux available for download under the GPL after they knew their alleged property was in it, they've GPL'd that property. Hence, they're stuffed.

      • Re:Even if they offer a "download" (Score:5, Informative)

        by albalbo ( 33890 ) on Tuesday August 17, 2004 @10:16AM (#9990767) Homepage
        I don't think it's necessarily the case that the code becomes GPL'd by default - although that argument could be made - just that by continuing to make it available, other people can have a reasonable expection that the code is OK. It's called estoppel, and it basically means that their past behaviour would stop them from suing people.

        • Re:Even if they offer a "download" (Score:5, Interesting)

          by Scarblac ( 122480 ) <slashdot@gerlich.nl> on Tuesday August 17, 2004 @10:25AM (#9990901) Homepage

          Well, they claim it is their code, it is downloadable from their website, as their product "SCO Linux", under the GPL. If that doesn't make the code in question released under the GPL, I don't know what does.

          • Distributing should NOT be heald against SCO (Score:4, Insightful)

            by Ungrounded Lightning ( 62228 ) on Tuesday August 17, 2004 @12:55PM (#9992582) Journal
            In my opinion, a company's distribution of source for GPLed products for which it released versions should NOT be held to void its IP claims to any of its proprietary code inserted by others - even if it continues to distribute versions containing the code. I see this as both a matter of law, derived from the GPL's own terms, and as a matter of good policy for GPL promotion.

            The GPL explicitly claims that it does NOT purport to grant a license to proprietary code improperly inserted into a GPLed distribution by someone who does not have the necessary rights to place the code under GPL. But it does demand that any person (or company) who distributes object containing GPLed code must make the source available, and if even one copy goes out without the source attached the only permissible way to do that (so it can reach a repurchaser of the oject) is to make the source available generally for a minimum time, as by a web or FTP site.

            So a company who distributes a modification of a GPLed project may be required to distribute the code for a time, under penalty of loss of the right to copy and/or distribute GPLed code forever. If the company THEN discovers someone ELSE has included their pride-and-joy in the base distribution, they're in a catch-22:

            - If they stop distributing the source, they lose GPL rights. This could be a BIG cost.
            - If they DON'T stop, AND this puts their proprietary code under GPL, they suffer the loss of their IP.

            So the doctrine of estopple should not apply: Their IP is already exposed - taking down their distribution won't significantly mitigate that damage, since it will be available elsewhere on the net. But taking it down WILL generate other costs for them.

            And since the GPL doesn't claim to grant rights to code improperly inserted, it can be argued that the improperly inserted proprietary code is not under it, until such time as the owners deliberately, with intent, insert it themselves - despite their continued distribution of the source improperly containing it, in order to meet their GPL obligations.

            Now the GPL advocates might want to argue that, nevertheless, the victim of such theft must now either free the code or stop distributing and lose all GPL rights. But IMHO that's a bad idea.

            Such a position would greatly hamper the adoption of the GPL codebase by companies with code they wish to keep proprietary - because unknowing propagation of code stolen from them within a large software release (such as a Linux distribution) would leave them on the above cleft stick: Give away your family jewels, or suddenly shut down all your GPL business-model activity.

            Of course IBM's lawyers had to try making this assertion. But for the future of the GPL I hope that either the case is decided without a ruling on this issue or (better yet) IBM's claim that this frees the (allegedly) SCO code is explicitly rejected.

            (Meanwhile, perhaps the maintainers of the GPL might want to add a bit of verbage to clarify this issue to a future version?)

            • Interesting point (Score:5, Insightful)

              by MarkusQ ( 450076 ) on Tuesday August 17, 2004 @01:56PM (#9993275) Journal

              While I agree with you in spirit, I can't help but think that what you are suggesting would be far worse than the problem it proports to solve. If someone knowingly distributes something they wrote under the GPL, then they have done just that. No waiting for an indefinite period and saying "April fools!" or "Gosh, we knew our code was in the stuff we were distributing under the GPL, but we didn't intend it" or shouting "Psyche!" at the world.

              In the circumstance you discribe, there must have been some other version of the software, distributed under some other terms, before it was ever added to the GPL'd aglomeration. What they should do is strip their code out, and distribute the GPL'd mass minus their code under the GPL, and offer their original product under whatever licence they wish.

              They don't have to "stop all their GPL activities" but they shouldn't knowingly distribute something under the GPL (or, for that matter, under any licence) if they don't intend to honour its terms.

              -- MarkusQ

        • Re:Even if they offer a "download" (Score:5, Insightful)

          by eric76 ( 679787 ) on Tuesday August 17, 2004 @10:26AM (#9990906)
          Assuming for the sake of argument that SCO really did own the rights to the code, if they did not wish to distribute the code under the GPL, they would necessarily have to cease distributing the code when it was discovered.

          SCO's continued knowing distribution of the code under the GPL should clearly indicate their acceptance and intention to do so.

      • Re:Even if they offer a "download" (Score:5, Informative)

        by ajs ( 35943 ) <ajs.ajs@com> on Tuesday August 17, 2004 @10:19AM (#9990809) Homepage Journal
        And they did offer it for download for a LONG time. Many people, myself included, were posting links to the kernel source RPM on their ftp site for the first 6 months or so of the suits, here on Slashdot. I have a downloaded copy of it.

        It was the 2.4.13 kernel with some patches, so if AND ONLY IF, SCO has a problem with code that was added after 2.4.13, can they really mount a case that that code was not put under the GPL by SCO after the suit began.

        • Re:Even if they offer a "download" (Score:4, Insightful)

          by msobkow ( 48369 ) on Tuesday August 17, 2004 @11:14AM (#9991477) Homepage Journal

          Finally, it would seem rationality is coming to the forefront. Now lets see if the legal system has any sanity and quashes this SCO garbage already. We've all wasted far too much time and resources on the IP leeches already.

          At least maybe the mess will help force some changes on the USPTO. (No, I don't care how overworked you are. If you can't do the job right, then let the backlog build up until someone ponies up the resources to deal with the backlog.)

      • Re:Even if they offer a "download" (Score:5, Funny)

        by bobetov ( 448774 ) on Tuesday August 17, 2004 @10:28AM (#9990938) Homepage
        I've been wondering why they haven't taken down the code from their servers. It just occurred to me that they may not have anyone in their company left who knows *how* to.

        • Re:Even if they offer a "download" (Score:5, Funny)

          by mr_z_beeblebrox ( 591077 ) on Tuesday August 17, 2004 @11:00AM (#9991307) Journal
          I've been wondering why they haven't taken down the code from their servers. It just occurred to me that they may not have anyone in their company left who knows *how* to.

          Don't be a fool, EVERYONE at SCO knows how to take it down:
          TO:sco.com web server
          FROM: SCO Legal
          RE: Linux Download availability

          It has come to our attention that you are offering Linux source code for download. This is a direct infringement of SCOs valuable IP portfolio. SCO (caldera) has worked hard to get credit for other peoples work, you are diminishing it. You are hereby ordered to CEASE AND DESIST.

          Any lawyer can do that!
        • That the left hand doesn't know what the right hand is doing at SCO should not come as a surprise.

          While the parent post was made in jest (or at least taken in jest), the reality may very well be that, on the technical side, SCO is so demoralized and moribund that they don't have anyone to monitor what is on their servers.

          My guess is also that the actual technical people at SCO are probably pretty disgusted with upper management's new strategy, and may be exhibiting some passive-aggressive behaviour by let

      • Re:Even if they offer a "download" (Score:5, Insightful)

        by bloggins02 ( 468782 ) on Tuesday August 17, 2004 @10:29AM (#9990944)
        Actually, this is not the argument given in the Request for Partial Summary Judgement (and yes, I read the whole thing, I was bored last night).

        The argument given by IBM is that SCO cannot on the one hand sue IBM for breach of contract and damage done by said breach and on the other hand knowingly continue to offer (and through advertising, tout the benefits of) the "offending" code in question.

        The key word here is knowingly. IBM claims (and I think claims correctly), that since the code (Kernel 2.4) is still available on their website after they knew about it, SCO waives their right to sue for breach of contract on the code in question.

        If the judge agrees, then game over for SCO.
        • Why can't SCO Claim.

          1) we didn't know it was there
          2) Once we found out it was released everywhere by IBM the horse was way out of the barn.
          3) IBM'S "illegal" actions have boosted the Linux market place
          4) To stay competitive we have to release a copy of Linux, under GPL, to be competitive.
          5) But all of this is a result of the fruit of IBM's "illegal" actions so they still owe us damages.

          What I don't understand is how they can try to sell Linux lic. when their own vers. of Linux is available under GPL; that

          • Because... (Score:5, Interesting)

            by schon ( 31600 ) on Tuesday August 17, 2004 @12:54PM (#9992560)
            Why can't SCO Claim.

            1) we didn't know it was there

            Because they're still distributing it themselves.

            2) Once we found out it was released everywhere by IBM the horse was way out of the barn.

            Irrelevant. If you want to try to claim damages, you MUST do everything in your power to stop infringement.

            3) IBM'S "illegal" actions have boosted the Linux market place

            Again, irrelevant. How popular something is has no bearing.

            4) To stay competitive we have to release a copy of Linux, under GPL, to be competitive.

            That does not logically follow. Damages have no bearing on you continuing to be competitive or not.

            5) But all of this is a result of the fruit of IBM's "illegal" actions so they still owe us damages.

            By continuing to distribute it themselves, they are declaring that the value of the infringement is $0.00. There are no damages to be awarded.

            Here's what SCOX should have done:

            Once they discovered the 'infringing' code, they must immediately stopped distributing the material themselves, then contacted the responsible people to arrange for damages (which they claim was IBM.) In doing so, they must (as a matter of law) identify the lines of code that are 'infringing'.

            They should then contact every distributor of Linux they know about (I'm guessing that a notification sent to Linux, kernel.org, along with a press release might be acceptable in this case), and notify them of the status of their claim, the lines of code that were at issue, and demand that they cease distributing the 'infringing' material.

            Failure to follow these steps means that they can't claim damages.

            There is *NO* (as in zero, nil, nada, zip, bupkiss) valid legal reason to not follow these steps, and many valid legal reasons they should.

            The only answer as to *why* they didn't is as follows:

            Either 1) they know they have no case, or
            2) their lawyers don't know anything about the law at all, and should be disbarred and charged with fraud.

      • missing the point (Score:4, Informative)

        by einhverfr ( 238914 ) <chris...travers@@@gmail...com> on Tuesday August 17, 2004 @11:51AM (#9991897) Homepage Journal
        You folks are talking copyright here, and IBM's hearing on Partial Summary Judgement on this issue is next month (they filed this motion some time ago).

        This story is about IBM moving for PSJ on the contract claims, basically stating (among other things) that the court should be able to rule on whether IBM is permitted contribute their in-house code into Linux as per the AT&T contract. This is actually quite a bit worse for SCO than just a copyright PSJ because this will hurt many other aspects of their case.

        IANAL, etc.
    • "how do we know they didn't just copy some random code which did exist in the kernel?"

      I guess we'll just have to take their word for it.
    • Even if they offer a "download" of the disputed code, how do we know they didn't just copy some random code which did exist in the kernel?

      Simple -- compile it and see if it runs correctly.

  • Patent hammer (Score:3, Funny)

    by nightsweat ( 604367 ) on Tuesday August 17, 2004 @10:07AM (#9990636)
    I would think IBM would have a way to enforce its huge patent portfolio in a way that would torpedo SCO entirely, and not just in court.

    Maybe they could offer a $50/year licensing fee to other open source companies that use their patents and a fee of one BAZILLION dollars to SCO to use their patents.

    • They could waive their patent rights for software distributed under an OSS approved license, but to charge would probably fall foul of most licenses and halt distribution of the software. Not exactly desireably.

  • Scuppered? (Score:5, Informative)

    by YetAnotherName ( 168064 ) on Tuesday August 17, 2004 @10:07AM (#9990642) Homepage
    Ah, "to scupper":

    v. 2. put in a dangerous, disadvantageous, or difficult position

    Yep, that's it.

  • What's the quickest this could be finished? (Score:5, Interesting)

    by Paul Crowley ( 837 ) on Tuesday August 17, 2004 @10:08AM (#9990647) Homepage Journal
    If the judge basically doesn't extend SCO the benefit of the doubt any further on any of this, how long might it take for the whole thing to be completely dead, stop quivering, be visibly a corpse? How long can SCO continue to drag the threat out before it's dead?
    • Sounds like a question for a slashpoll

    • Re:What's the quickest this could be finished? (Score:5, Informative)

      by prhodes ( 625766 ) on Tuesday August 17, 2004 @10:27AM (#9990926)
      If the judge basically doesn't extend SCO the benefit of the doubt any further on any of this, how long might it take for the whole thing to be completely dead, stop quivering, be visibly a corpse? How long can SCO continue to drag the threat out before it's dead?

      It's going to be a while, I think:

      • 1. The whole business of the Partial Summary Judgement(PSJ) on IBM's 10th Counterclaim has to be resolved.
      • 2. This new PSJ has to be resolved (IBM filed, now SCO responds, then IBM responds to SCO, then there are oral arguments, then the judge issues a ruling)
      • 3. Any additional motions must be resolved.
      • 4. Whatever's left of SCOs claims goes to trial.
      • 5. IBMs counterclaims go to trial (this may be combined with 4, I'm not sure).

      So, it may be a while. I suspect IBM has other motions ready to gut the rest of SCOs claims, and these will need to be resolved. The only way I can see this resolved quickly is if SCO just folds, and that's IMO unlikely - it would expose them to massive shareholder lawsuits & probably an SEC inquiry.

      -Phil
      IANAL, I just read Groklaw

      • Re:What's the quickest this could be finished? (Score:5, Informative)

        by slipstick ( 579587 ) on Tuesday August 17, 2004 @11:03AM (#9991346)
        I agree its still going to be a while but I think we can make a better guess than that.

        The grandparent post stipulated that the judge wouldn't give SCO any more wiggle room, which I don't believe is all that far-fetched. Here, I take wiggle room as "we need more discovery", as opposed to "my nephews sick I need more time to file". The latter is what I would characterize as normal operations, the first is wiggling.

        IBM filed their first PSJ on or about May 21st. The initial oral argument was scheduled for Aug. 4th but this has been moved to Sept. 14th. Presuming a couple of days for the judge to ponder and that decision would be handed down around Sept.16th. So, let's call it 3 and 1/2 months. Thus, from the date of Friday's filing(Aug.13th) that would place a resolution on the contract question by or about Dec.1st or so, call it Dec.7th for good measure.

        Now, presuming further that both PSJ's go in IBM's favor, there would be little left to argue as the rest of SCO's case hinges entirely on their claims in the contract claims. I will guess that IBM will file a few more of these PSJ motions, basing them on the two already in play. So I will guess that by mid-May of next year almost all of SCO's case will have been dismembered. Effectively making "this" over. There will of course be the inevitable clean-up which will occur because IBM has all their counter-claims and I guarantee they are not going to let those drop. So sometime around November of next year I suspect SCO will declare bankruptcy or negotiate that IBM take over SCO operations with no money changing hands.

        Whether IBM desires to persue old Darl and his cronies for some malfeasance I can't guess in which case the "whole thing" won't be over for some time, but all the nasty stuff will be over by May or June of next year.

        IANAL yadda yadda yadda...
    • I think it depends on the SCOX stock price. Currently fluttering around $4. Kind of a race to see which bottoms out first, their market cap or their credibility. I rather suspect they'll be forced into bankruptcy if the stock drops much more.

      Then Murphy would probably intervene, and the IBM lawsuit would be frozen as an "asset" for SCO's creditors.

  • Summing up IBM's 100 page PDF in 1 sentence... (Score:3, Funny)

    by VC ( 89143 ) * on Tuesday August 17, 2004 @10:09AM (#9990660)
    Authored by: sef on Monday, August 16 2004 @ 11:34 AM EDT Posted on Groklaw, Sef is the author, not me.

    "We didn't do it. Even if we did, these guys said we could, but we didn't. And even if we did, which we didn't, not only did these guys say we could (but we didn't), but these nobks did the same thing, so we should be allowed to do it. Which we didn't."

  • Time for a class action suit (Score:3, Funny)

    by Tenebrious1 ( 530949 ) on Tuesday August 17, 2004 @10:09AM (#9990672) Homepage
    Against SCO for making us with mod points have to dig through yet another SCO discussion.

  • Costs ? (Score:5, Funny)

    by Anonymous Coward on Tuesday August 17, 2004 @10:11AM (#9990693)
    I hope IBM follow this up with a request that SCO have to pay legal costs. 100 pages at rate even Tony Soprano would be ashamed at extorting ... erm charging ... should push SCO into chapter 11
    • They've already counter-sued for that and much,much more.

      Trust me SCO as we know it will no longer exist. Darl and his cronies however, will likely make out like bandits. Hopefully, IBM can sue on something to get Darl and his boys personally and not just SCO.

  • Derivative, but still important (Score:5, Informative)

    by grunt107 ( 739510 ) on Tuesday August 17, 2004 @10:12AM (#9990700)
    IBM goes on to argue that old agreements with AT&T and expert witnesses make it clear that IBM was allowed to do what it liked with "derivative works." It would have been bad business for IBM to agree to broad terms banning it from controlling "derivative works," it says.

    If the AT&T contracts show the approval of derivative works, any AIX code IBM developed and then added to Linux would definitely be out of scope.

    I think someone is SCO-rewed on this one.

  • Mwahaha (Score:5, Interesting)

    by Anonymous Coward on Tuesday August 17, 2004 @10:12AM (#9990706)
    It's really cool to see how the things that we're pointing at here on Slashdot (like the still-available linux downloads) and going "wtf, SCO can't do that", we're finding eight months later IBM suddenly bringing this thing up in a legal finding and going "SCO did this, they can't do that".

    It's funny, IBM's legal team doesn't miss anything but they seem to always wait until the most opportune time to bring it up. Meanwhile even if SCO's case hadn't been baseless in the first place, they seem to be doing absolutely everything possible to sabotage it short of bribing the judge.

    Hey wait a minute, bribing the judge.. hmm...

    You know, something just occurred to me. I think I know what SCO might be up to. Have you ever seen "The Producers"?

    • Re:Mwahaha (Score:5, Funny)

      by Mateito ( 746185 ) on Tuesday August 17, 2004 @10:47AM (#9991140) Homepage
      Hey wait a minute, bribing the judge.. hmm...

      With what? Stock options?

    • SCO's case hadn't been baseless in the first place, they seem to be doing absolutely everything possible to sabotage it short of bribing the judge.

      In a case this big only bad come even for the bad guy out of bribing the judge. Two scenarios:
      Sco "Here judge, here's ONE MILLION Dollars to help you think about this"
      1. You are attempting to bribe a judge, go directly to jail.
      2. "You are a piss-ant attempting to bribe a judge one million dollars to rule against one of the richest corporations in the worl

    • Re:Mwahaha (Score:3, Insightful)

      by Steeltoe ( 98226 )
      Unless they go through every page on the SCO-site manually, they probably got it from some news-source. I wouldn't be surprised if searching through /. is actually becoming standard practice for lawyers to get ideas about their angle of attack/defence on technical issues.

      Don't underestimate the value of opinions from thousands of people across the globe.. It's unprecedented in our history. IBM certainly knows the open source community well enough to warrant that a substantial portion of their employees rea

  • scuppered ... again? (Score:5, Insightful)

    by SABME ( 524360 ) on Tuesday August 17, 2004 @10:17AM (#9990773)
    With all due respect to Armchair Dissident, this is the first time I'm aware that IBM has refuted all of SCO's assertions on a point-by-point basis, and called into question SCO's motives in bringing this case to trial. So it's hardly the case that SCO is "scuppered again." It's just that the wheels of justice turn slowly, in the interest of giving all parties a fair hearing.

    According to Groklaw, this is nowhere near the end of the case, since SCO still has the opportunity to rebut IBM's motion, IBM then can refute the rebuttal, etc. etc. But it may be the beginning of the end.

    The previous "scuppered again" reports from Groklaw (and other sources) are the results of developments in other trials as well as independent investigations (outside the courtroom) into the merits of SCO's claims. Based on the linux community's technical consensus (again, outside of any trial) that SCO's claims are meritless, I think we've known SCO's case was doomed all along. We're still waiting for it to play out in the courts, though, which is where it counts.

    • ....duelling.

    • Re:scuppered ... again? (Score:5, Insightful)

      by Armchair Dissident ( 557503 ) on Tuesday August 17, 2004 @10:39AM (#9991057)
      I don't disagree with you at all. Indeed it is precisely because of SCO's constant ability to 'get out of jail free' that I made the remark. I don't for one instance believe that this is the end of the case, companies will always drag out a court case as long as they possibly can - and SCO has been particularly good in this respect.

      The "scuppered. Again" comment was mainly as a result of this from Groklaw:

      You don't want to miss reading page 76. It's where IBM tells the judge that as recently as August 4, 2004, SCO was *still* offering the Linux 2.4 kernel for download, the very code it is suing IBM over. [....] I think, therefore, that SCO's case just went poof, on this one issue alone.

      I think that Groklaw are probably right here. SCO no longer has the argument that they didn't know the code was still being distributed, so they have - by definition - been distributing disputed code under the GPL. Bang goes their case. But it's not the first time that their case has apparently gone Bang. All the claims of disputed code that turned out to be nonsense - for starters - should have scuppered their case. This one's going to drag on until SCO have no more money to fight with - IMHO.

  • they'll be defaulting to -1 for all their logged in lawsuits from now on.

    >>"Although SCO for months perpetuated the illusion that is had evidence that IBM took confidential source code from Unix System V and 'dumped' it into Linux, it has become clear that SCO has no such evidence," IBM says in the court filing.

    Moral: Don't troll. Yes Darl, even in court. *Especially* in court!

    • Re:There goes SCO's karma... (Score:5, Interesting)

      by Andy_R ( 114137 ) on Tuesday August 17, 2004 @10:27AM (#9990931) Homepage Journal
      the technical term for being -1 for lawsuits, is a 'vexatious litigant'.

      H.ere in Britian if you waste too much of the court's time, the court can declare you to be a vexatious litigant, and you lose the right to file suits. This would do wonders for SCO's share price!

      • Re:There goes SCO's karma... (Score:2, Insightful)

        by Anonymous Coward
        the technical term for being -1 for lawsuits, is a 'vexatious litigant'.

        H.ere in Britian if you waste too much of the court's time, the court can declare you to be a vexatious litigant, and you lose the right to file suits. This would do wonders for SCO's share price!

        Hmm, I don't know if we have such a thing in the States. Really I doubt it, a well applied ruling like that would help clear the civil courts of what we call "frivilious litigation". However, something like this could also be abused by usi

  • Damn it! (Score:5, Funny)

    by tod_miller ( 792541 ) on Tuesday August 17, 2004 @10:17AM (#9990784) Journal
    I just gone and bought a license from SCO as well... and now you say they don't have a leg to stand on?

    www.ebay.com

    For sale, hardly used, SCO unix licenses.

    You beat their ass good big blue! I don't want thier own mothers to recognise them!

    SCO shows that everyone can hate you, and you can still try and make money. At least Microsoft stole thier crap from someone fair and square.
  • There has been a lot of stories on /. which says something like "if this goes through, the SCO case is effectively dead", and that "it is going to happen in weeks".

    I must admit that I have gotten a bit tired of SCO stories (weird, huh?), but I can't remember seeing a ruling that has killed parts of SCOs case.

    So, can somebody please summarize: Which parts of SCOs is dead now, by court rulings?

    • I think so far as the IBM case is concerned all the parts of SCO's case ( at least the case they boasted they had in the media ) are dead apart from the dispute about whether IBM is allowed to do what it likes with the software it has written.

      Read Groklaw for more info about all this stuff though.

    • Re:So, which parts of the case is allready dead (Score:5, Informative)

      by LowneWulf ( 210110 ) on Tuesday August 17, 2004 @10:49AM (#9991163)
      Well the biggest part was the trade secrets claims. SCO rewrote their claims, dropping the pretense that SysV has any trade secrets, instead making the primary issue that of contract infringement.

      IBM has two motions for partial summary judgement in the queue. The first is for a declaration of copyright non-infringement. If this passes (to be evaluated in September), then the courts will declare Linux to be free from copyright issues from SCO. The second, this recent one, is for partial summary judgement against SCO's contract claims, which is what saves IBM.

      Linux wants the first. A lot. It effectively kills SCO's legal threat against Linux. The latter is what nails the most important part of SCO's case vs. IBM, and probably kills SCO in the process.

  • Target acquired (Score:5, Funny)

    by Stephen Samuel ( 106962 ) <samuel@NOsPaM.bcgreen.com> on Tuesday August 17, 2004 @10:20AM (#9990826) Homepage Journal
    SCO was still offering the disputed code for download as recently as August 4 2004.

    1. Target foot.
    2. Pull triger
    3. Scream
    4. Get bigger gun
    5. repeat 1-4
    6. Profit!!!! (M$)

  • Comment removed (Score:4, Insightful)

    by account_deleted ( 4530225 ) on Tuesday August 17, 2004 @10:20AM (#9990828)
    Comment removed based on user account deletion

  • Difference between IBM & SCO (Score:5, Interesting)

    by CmdrGravy ( 645153 ) on Tuesday August 17, 2004 @10:23AM (#9990865) Homepage
    Reading the documents filed by IBM and by SCO I am constantly amused by the fact that I have no clue at all what SCO are getting at in there filings but the IBM filings are crystal clear and make perfect logical sense.

    The best bits of this filing I think are the pages and pages of testimony from ( by the looks ) almost everyone involved in drawing up the and signing the original contract who all say unanimously

    "This contract certainly does not provide SCO with the rights it says it is provided with, this was discussed at the time and all parties were agreed that it was not the case since to do otherwise would be so blatantly silly that no one would ever sign such a contract."

    Also the way IBM have culled SCO's many accusations to the single matter of the contract dispute and then ( in my opinion ) thoroughly destroyed that even more effectively than they destroyed SCO's previous claims is very impressive and kind of suggests that this has been IBM's plan all along and everything is moving very smoothly for them.

  • SCO Stock is up! (Score:5, Interesting)

    by chipwich ( 131556 ) on Tuesday August 17, 2004 @10:24AM (#9990891)
    SCOX (http://finance.yahoo.com/q?s=scox [yahoo.com]) is up almost 10% at of 10:30 EST. It must be true! Why does this stock move paradoxically to the news?

    • Re:SCO Stock is up! (Score:2, Interesting)

      by amacedo ( 779821 )
      There is a good reason for this. Which is actually bad for SCO.

      Yesterday the stock hit the 52 week low has well as the same price it had *before* announcing it would fill the suit against IBM. Its just a bounce off a very value. Curiously enough there seems to be some volume.
    • Heh heh, yeah "up" to 4.22 which is quite a long way down from the 25 or whatever they had got to at the beginning of all this nonsense.

    • Re:SCO Stock is up! (Score:5, Informative)

      by div_2n ( 525075 ) on Tuesday August 17, 2004 @10:48AM (#9991155)
      You may find some information on possible reasons here [itmanagersjournal.com]

    • Re:SCO Stock is up! (Score:5, Interesting)

      by Anonymous Coward on Tuesday August 17, 2004 @11:07AM (#9991400)
      The stock is *very* heavily shorted and thinly traded. Of the approximately 8.5 million shares that are available to be traded on the public market, more than 50% (that's 4 million plus shares!) are shorted. A typical stock is considered to be heavily shorted when it reaches 10-15%.

      This means that when someone wants to cover their short position, they push the price up somewhat.. particularly when it's heavily shorted and thinly traded. It's known as "short squeeze".

  • Credit where credit is due. (Score:5, Insightful)

    by throughthewire ( 675776 ) on Tuesday August 17, 2004 @10:26AM (#9990910) Homepage
    It's a bit disingenuous to say, "The Register is reporting..." and "Groklaw also has the story," when in fact Groklaw had the scoop on Monday.

  • Groklaw has the story first, not "also" (Score:5, Informative)

    by Jayfar ( 630313 ) on Tuesday August 17, 2004 @10:34AM (#9990993)
    Not to dis the Register, with their brief writeup dated today, but Groklaw had the story yesterday morning, including comprehensive analysis. To write that Groklaw "also has the story" is off the mark. Groklaw is, as usual, the preeminent primary source.

  • SCOX Market cap 63.95M (Score:3, Funny)

    by Anonymous Coward on Tuesday August 17, 2004 @10:35AM (#9991009)
    Q: Why doesn't IBM just buy out SCO for a cool 64M?

    A: They're probably getting more than 64M in free publicity from those jerks.

    • Re:SCOX Market cap 63.95M (Score:5, Insightful)

      by number6x ( 626555 ) on Tuesday August 17, 2004 @10:49AM (#9991169)

      How many other companies with small caps will line up to start suing IBM?

      If IBM earns the reputation as a company that will settle for a few million instead of fight, they will find themselves surrounded by mosquitoes!

      Look at Microsoft, they get sued all the time. MS is probably spending more on lawsuit settlements each year than they spend on keeping the XBox division or the Great Planes division afloat.

      IBM hasn't lasted over 100 years by giving money away to settle frivolous lawsuits. They know the long term consequences.

  • Buy them (Score:2, Interesting)

    by 5m477m4n ( 787430 )
    With all the court fees, lawyers, and FUD that SCO is costing IBM, I would think it'd just be cheaper to buy them. There, now we most certainly own the code.
  • ...but the date is right there in the article. Seriously though, haven't they tried this a few dozen times already?

  • How did the Registry get it so wrong? (Score:5, Interesting)

    by slipstick ( 579587 ) on Tuesday August 17, 2004 @11:38AM (#9991727)
    The Register claims "IBM goes on to argue ... that IBM was allowed to do what it liked with derivative works."

    This is NOT what IBM's motion claims. In fact it's the exact opposite of what IBM was arguing. IBM's motion claims that the agreements with AT&T applied only to "derivative works" as defined by the US copyright office and truck loads of case law. "Derivative works" here having it's naturally understood meaning that the work must contain part of the original(or some substantial simularity).

    So basically IBM was saying that they aren't allowed to distribute the source code to ALL of AIX or Dynix or any part that CONTAINS System V code, but they can distribute any of the code from these that belongs only to IBM(called homegrown code in the motion).

    Since noone is claiming that IBM has given away all the code to AIX and Dynix, and because SCO has basically given up any pretense of showing code in Linux that might have come from System V AND because the only code SCO has actually pointed to belongs ENTIRELY to IBM which is expressly NOT derivative code, than IBM is well within their rights to distribute it.

    In other words, "It belongs to us and we can do with it what we like, now piss off."

    As opposed to "Sure part of it belongs to you but the contract says we can do with it what we like, so piss off". If this was the case I would be backing SCO here, but since it isn't, I want SCO to fry.

    • another egregious error by The Register (Score:4, Informative)

      by ToLu the Happy Furby ( 63586 ) on Tuesday August 17, 2004 @12:29PM (#9992307)
      The Register wrote:
      "Second, even if the AT&T agreements could be read to preclude the disclosure of homegrown code - and they cannot be - any breach based upon such a reading has been waived by Novell on behalf of SCO, and by SCO itself," IBM says in the filing, referring to the time in which Novell owned the rights to Unix before SCO.

      Totally wrong. Instead, IBM is referring to the fact that Novell only sold some Unix rights to Old SCO, and that among the rights they retained was the right to direct SCO to "amend, supplement, modify or waive any rights under, or assign any rights to, any System V License". And, in the event that SCO refused, to do so themselves.

      More broadly, SCO did not buy the existing System V licensing business from Novell. They only bought the right to sell new Unix licenses, and also to handle administrative duties on existing licenses in exchange for a 5% commission. IBM's Unix license is still with Novell, not SCO. SCO acts as a go-between on Novell's behalf, but that's the extent of their role.

  • Not quite right... (Score:5, Informative)

    by mark-t ( 151149 ) <markt.nerdflat@com> on Tuesday August 17, 2004 @12:06PM (#9992051) Journal
    FTA on Groklaw...
    In the beginning of the case, they said they didn't know the allegedly infringing code was in there when they released Linux under the GPL. They can't say that since they filed the lawsuit in March of 2003. Now, in August of 2004, they are *still* distributing the same code under the GPL. Under the terms of the GPL, there is no taking that code back that I know of. I think, therefore, that SCO's case just went poof, on this one issue alone.

    Remember, since SCO was also alleging that the terms of the GPL itself were not valid, the fact that they continued to distribute it under the terms of the GPL was meaingless.

    What this does *NOT* do, and they are right to assume this, is automatically make the GPL apply to their code, since there was no obvious intent to do so. If the GPL is not valid then absolutely nobody, including SCO, has permission to distribute Linux without permission from the copyright holders on the code. Does SCO have this permission outside of the terms of GPL? No? Then it makes SCO guilty of continued and willfull copyright infringement.

    • Re:Not quite right... (Score:5, Insightful)

      by gvc ( 167165 ) on Tuesday August 17, 2004 @01:08PM (#9992740)
      IBM has a separate counterclaim re GPL and violation of IBM's copyrights.

      Their point in this request for summary judgement has nothing to do with GPL. All they are saying is that SCO can't expect IBM to keep it (JFS etc.) confidential while they (SCO) continue to publish it. As SCO has stated over and over, this particular claim has nothing to do with copyright, and therefore nothing to do with GPL. It has to do with confidentiality.

  • This is the SECOND summary judgement motion (Score:5, Interesting)

    by Animats ( 122034 ) on Tuesday August 17, 2004 @12:33PM (#9992336) Homepage
    This new motion is IBM's second motion for partial summary judgement. The first one, asking for dismissal of the copyright claims, was supposed to be decided this month, but that's been put off until September 15th. If the copyright claims are dismissed, it's over for everybody but IBM. That's the one we all care about.

    The new motion is about IBM/SCO contract issues. That doesn't directly affect anybody else. Only the copyright claims matter to unaffiliated third parties.

  • New theory - IBM did it (Score:3, Interesting)

    by TimButterfield ( 16686 ) on Tuesday August 17, 2004 @12:37PM (#9992381) Homepage

    or some other pro-Linux company.

    Wait. Wait. Here me out. I am just playing the devil's advocate here to bounce an alternative theory off of the group. I do not think this is true, but 'what if' ...

    This is the scenario:

    1. A (privately) known bad case is put forth with great publicity.
    2. Distrust regarding Linux is created due to the FUD surrounding the case.
    3. After a sufficient length of time, the case is publicly shown to be legally invalid.
    4. The case collapses.
    5. The negative becomes a positive.
    6. Profit!

    I know, too many steps.

    It is easy for many /.ers to think of Microsoft as the evil giant seeking to destroy Linux. What if this case is more like a legal vaccination? The SCO case could be used to create legal precendents to make it more difficult to attack Linux in the future. That which does not kill you makes you stronger.

    To repeat, I do not think this is what is happening, but I do find it interesting to consider the possibility.

  • Waiting for boat at train station (Score:3, Insightful)

    by salesgeek ( 263995 ) on Tuesday August 17, 2004 @12:56PM (#9992601) Homepage
    What's really interesting about all this SCO nonsense is that thier case seems to share a philosophy I see often on /. concerning intellectual property:

    1) An overbroad definition of derivative works and an understanding that I build part A. You build parts B, C, and D on part A. All your parts are belong to us, thank you for playing.

    2) Somehow that I worked on your code in the pase prevents me from creating new simmilar code in the future. If you do create it, I own it.

    All of these ideas are flawed in that they assume that intellectual property is like a rental property where all your improvements belong to the landlord.

  • IBM wins for creativity in punishing SCO... (Score:3, Interesting)

    by gsfprez ( 27403 ) * on Tuesday August 17, 2004 @12:59PM (#9992628)
    Notice who they got to compare Linux and SVRX (and AIX and Sequent) code against each other?

    A REAL LIFE MIT scientist... and not just any fictitious MIT scientist.... but Dr. Randall Davis, Director of Research for CSAIL. [mit.edu]

    i read that and said to myself... wholly fscking shit... THAT is funny.

  • My summary of the memorandum (Score:3, Insightful)

    by UnknowingFool ( 672806 ) on Tuesday August 17, 2004 @06:04PM (#9995808)
    IANAL but here's my summary of the memorandum.

    First, SCO says that IBM stole millions of lines of code and put into Linux. IBM has asked SCO to identify the lines many times. A judge has ordered SCO to do so twice. SCO has not done so to this date.

    Instead, they keep changing their claim. Then the case became about "trade secrets" IBM stole. IBM has asked SCO to identify what trade secrets or what code are invovled with these trade secrets.

    SCO no longer says its about trade secrets. Now, it's about code that IBM contributed from AIX and Dynix into Linux. SCO argument is that since they own System V, according to the licensing agreements between AT&T and IBM, they own all dervatives and anything else IBM creates. Thus IBM cannot contribute code to Linux because SCO owns it. SCO does not identify all the lines but does identify the modules that contains this derivative code (RCU, SMP, etc). Because IBM violated this agreement, SCO has the right to terminate IBM's license.

    Using an expert from MIT, IBM says that all the modules that SCO mentions contains no derivative code but is original.

    IBM mentions Amendment X. Back in 1996, in an agreement (Amendment X) with Novell and old SCO, IBM acquired a "irrevocable, fully paid-up, perpertual" license to System V for the sum of $10 million. Novell eventually sold some rights to SCO but kept enforcement rights.

    IBM then brings out everyone and their dog that participated on the original license from AT&T, IBM, and Sequent. Everyone involved agree that AT&T does not and never owned any derivatives of System V created by their licensees or by third parties for their licensees. All parties (especially AT&T) emphasize that any original code created by their licensees and not derivative were never claimed by AT&T. Since AT&T never claimed it, SCO cannot either. AT&T reps and former counsel disagree with SCO current interpretation of the license agreement that AT&T drafted. IBM supports this with a few documents from AT&T including the $echo newsletter.

    So as a matter of law, IBM says that summary judgment should be granted because it is all one-sided. Citing case law since everybody who was party to the original license agrees with IBM and all documents support their view and SCO has not produced any testimony or documents otherwise, IBM owns all their own original code and any derivatives of System V. Thus they could not have breached the contract.

    Also, even if IBM breached the contract, the contract cannot be terminated because of Amendment X. Additionally, even if the contract could be terminated, SCO does not have the right to do so. Novell still retains the enforcement rights of System V. Lastly IBM notes that SCO should not be able to sue IBM over contributions to Linux if SCO itself still distributes Linux knowing it supposedly has "stolen SCO code"

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