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IBM Files For Declaratory Judgement In SCO Case 390

Posted by timothy
from the raising-the-hammer dept.
Some Bitch writes "IBM has filed for declaratory judgement in the SCO case. They want the court to declare that "IBM does not infringe, induce the infringement of or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in Unix are invalid and unenforceable.". If the judge grants the motion then SCO effectively has no case and the whole thing is over." spafbnerf notes that "SCO has filed a motion for the patent infringement claim to be split into a separate case." fr0z adds a link to Groklaw's always-excellent coverage.
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IBM Files For Declaratory Judgement In SCO Case

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  • by Anonymous Coward on Wednesday March 31, 2004 @09:29AM (#8724381)
    Well, a few colleagues and I analyzed Files For Declaratory Judgement a few months ago. The upshot was that we were disappointed, as there are more powerful solutions hitting the market soon, and less expensive to boot.

    In sum, I think that Files For Declaratory Judgement is overrated and would recommend against it at this time.

    • Yeah, Files for Ejaculatory Declaration (aka Pr0n) is a much more widespread technology. I wouldn't particularly want to see what IBM creates in this area, though. It gives 'Big Blue' a scary connotation.
  • Its about time IBM (Score:5, Interesting)

    by randomErr (172078) <ervin.kosch@gmai ... m minus math_god> on Wednesday March 31, 2004 @09:30AM (#8724383) Homepage Journal
    I just wonder what took IBM so long to go for this? Was it matter of timing or did they have to wait for other judgements to clear first?
    • by GreyPoopon (411036) <gpoopon@@@gmail...com> on Wednesday March 31, 2004 @09:32AM (#8724403)
      I just wonder what took IBM so long to go for this? Was it matter of timing or did they have to wait for other judgements to clear first?

      Both. They first had to play out just enough rope for SCO to essentially hang themselves. Let's hope the rope doesn't break.

      • by Captain Nitpick (16515) on Wednesday March 31, 2004 @03:44PM (#8728137)
        Both. They first had to play out just enough rope for SCO to essentially hang themselves. Let's hope the rope doesn't break.

        This isn't a hanging rope, it's a +1 bungee cord of lawsuits.

        IBM waited for SCO to measure out their cord, and decided that SCO had five hundred meters of cord for a hundred meter drop.

        IBM's asking the judge to let them shoot SCO and save the trouble of waiting for SCO to hit bottom.

    • by Anonymous Coward
      For IBM's lawyers to get the licensing issues ironed out so they could use the Imperial March while slow-motion walking into the courtroom? Or the schedueling and accomidation issues for a full marching band?
    • by SenseiLeNoir (699164) on Wednesday March 31, 2004 @09:42AM (#8724472)
      Its more a question about timing. Whilst SCO et al, have been blasting away with their outlandish comments, IBM have been staying quiet, and feeding as much rope as possible. This way SCO cannot argue back saying the trail has been unfair to them.

      As a side point, I recall someone on Groklaw mentioning that on the motion there is IBM referencing to SCO incorporating GPL code into UnixWare or Unix.

      The statement was vague, and MAY have meant SAMBA, etc. However, considering SCO has provided the source code to UnixWare as part of discovery, it is likely they may have found something.
      • by tolan-b (230077) on Wednesday March 31, 2004 @10:09AM (#8724677)
        It's looking likely that they mean that SCO distributed SAMBA etc after breaking the terms of the GPL, but wouldn't it be lovely if there was GPL code illicitly stashed away in Unixware... now *that* would be satisfying ;)
        • by surprise_audit (575743) on Wednesday March 31, 2004 @11:21AM (#8725326)
          I think there may be something even better than that lurking in the bushes waiting to bite SCO's ass.

          Remember back in the beginning when SCO was inviting everybody to sign an NDA to look at the alleged infringing code, and all the OSS/kernel programmers wouldn't touch it for fear of appearing tainted?? You know, after seeing the source, SCO could later claim that they used SCO "inventions" and "methods"?? Remember that??

          Well, SCO was recently asking for a pile of Dynix/AIX source from IBM... I don't remember (and I'm too tired to check) if IBM forked it over yet, but if they have/when they do, won't that make it really, really tricky for SCO to innovate anything?? Assuming they escape from this farce as a solvent company, that is...

          • by Anonymous Coward
            SCO & IBM would be in some serious trouble if they showed any of the source code evidence to their own engineers rather than their legal experts.

            Besides, SCO already had access to Dynix/AIX as part of Project Monterey.
    • by Anonymous Coward
      Is it true that SCO and RIAA are planning a merger?
    • by srussell (39342) on Wednesday March 31, 2004 @10:53AM (#8725071) Homepage Journal
      I suspect that much of the timing had to do with the fact that IBM wanted to get as much information as they could from SCO so that they could present a reasonable case.

      Anybody can walk in on day one and say, "Their case is groundless" -- this is, in effect, what you do when you decide to fight it in the first case. It is another thing entirely to walk in and say, "Their case is groundless, and here is why, and here are their documents which support the argument."

      IBM is probably saying (or implying) something like: "SCO has claimed to have met the court's requirements for discovery, so they've claimed to have provided all of the relevant documents in the case. In light of this information, we believe that the case is meritless, and here is why, and here are the documents to support it. Our argument is either correct, or SCO is in contempt of court for having failed to provide all of the information requested."

      IANALOAP (...Or A Paralegal)

    • They needed to wait for the discovery from SCO to be completed. Now that they have that info from SCO since the judge forced SCO to divulge it, they have tailored a count in their couterclaim, the new declaratory judgment count, to knock out those issues which SCO has no evidence on. I suspect that these are the same issues that SCO wants to bifurcate out and have resolved later because they know they're going to lose. This is a very shrewd move on IBM's part. I would expect a motion for summary judgment on
  • by orthogonal (588627) on Wednesday March 31, 2004 @09:32AM (#8724397) Journal
    spafbnerf notes that "SCO has filed a motion for the patent infringement claim to be split into a separate case."

    But, why?

    I mean, if IBM gets the declaratory judgment, it'll wrap this all up.

    Splitting off the patent infringement into another lawsuit will just drag this out for another year...

    Oh!
    • by CountBrass (590228) on Wednesday March 31, 2004 @09:36AM (#8724437)

      Uhm no. This is not a "summary" judgement. And SCO isn't suing IBM for copyright infringement so I am kind of puzzled to see what this has to do with SCO suing IBM for *breach* *of* *contract*. I guess IBM must think it strengthens their hands for the coming contract fight.

      So off to Groklaw to see what they have say...

      • by Aneurysm9 (723000) on Wednesday March 31, 2004 @09:54AM (#8724561)
        TSG is suing IBM for copyright infringement, see their second amended complaint. IBM is most certainly right to think that this would strengthen their hand in the contract fight as well. If they can obtain a declaratory ruling to the effect that Linux does not infringe any TSG copyrights then TSG was completely without basis for terminating their contract (if they ever had one).
    • by SenseiLeNoir (699164) on Wednesday March 31, 2004 @09:46AM (#8724501)
      This motion in effect redirects the case back to the contract issues. During the life of this suite so far, copyrights tradesecrets, and other issues have been raise by SCO, when initially it was supposed to be only about contracts.

      WHat in effect IBM are doing is, filtering out the irrelevent parts, and refocussing it on the Contracts.

      Of course the copyright issues were a part fo the contract dispute, and if this motion is granted, and a declaratory judgement is made, it woudl certainly make it harder for SCO to spew more spruious comment in their favour.
  • by gloth (180149) on Wednesday March 31, 2004 @09:32AM (#8724400)
    but wouldn't life be just a little bit too bland without our favorite enemy?
  • Good Lawyers.... (Score:4, Interesting)

    by millahtime (710421) on Wednesday March 31, 2004 @09:32AM (#8724402) Homepage Journal
    Is it just me or are the SCO lawyers trying to drag this out as long as they possibly can. Talk about the lawyers staying on the payroll a long time. They are great lawyers at keeping on the payroll withough ever actually taking this anywhere.
  • by Hekatchu (684465) on Wednesday March 31, 2004 @09:33AM (#8724406)
    SCOs motion to Bifurcate in IBM case seemed like bad panick reaction. As put in Groklaw earlier, it looks like they want to separate their case from the most hopeless things by dividing it into two. Now the judge can only guess, whether what IBM is asking, is the most hopeless part. IMO it is.
  • Life after SCO? (Score:4, Insightful)

    by spellraiser (764337) on Wednesday March 31, 2004 @09:34AM (#8724411) Journal

    If the judge grants the motion then SCO effectively has no case and the whole thing is over.

    Over?? Wow, could this be the end of SCO?

    What will we make fun of then? Hardly IBM, since they seem to be rapidly converting themselves into good guys - this story will probably elevate them to the status of demi-godhood.

    Well, back to bashing Microsoft then I suppose ...

    • Re:Life after SCO? (Score:5, Informative)

      by Arker (91948) on Wednesday March 31, 2004 @10:12AM (#8724699) Homepage

      If the judge grants the motion then SCO effectively has no case and the whole thing is over.

      The article is incorrect. The writer appears to have confused a 'declaratory judgement' with a 'summary judgement' - but it's the former, not the latter. It just means that this declaration is part of the remedy IBM is asking the court to provide, when the case finally comes to a conclusion and they win.

      A summary judgement would be a motion for the Judge to declare that there is no need for a trial, that he can rule based on the facts already in evidence and stipulated. That's a very different thing, even though a lot of people seem to be confusing them.

    • Re:Life after SCO? (Score:3, Interesting)

      by drooling-dog (189103)
      Hardly IBM, since they seem to be rapidly converting themselves into good guys - this story will probably elevate them to the status of demi-godhood.

      Knowing how full the world is of irony, and how the powers that currently defend Linux will someday seek to control it, it'll be interesting to see how we all feel about IBM 5 years from now...

  • by Jameth (664111) on Wednesday March 31, 2004 @09:34AM (#8724416)
    "If the judge grants the motion then SCO effectively has no case"

    Everything from 'If' to 'then' is unneeded.
  • by Galileo430 (614516) on Wednesday March 31, 2004 @09:38AM (#8724444)
    I'll catch you next time TORVALDS!!!

    Next Up: SCO vs US Government
  • GPL Infringement? (Score:5, Interesting)

    by tiny69 (34486) on Wednesday March 31, 2004 @09:38AM (#8724446) Homepage Journal
    34. The viability of SCO's product offerings has depended in large measure upon the efforts of the open-source community in enhancing products and making them compatible for use across multiple software and hardware platforms. Indeed, SCO incorporated certain code licensed pursuant to the GPL into its proprietary UNIX products. SCO has also relied on independent developers in the open-source community, such as Linus Torvalds, in order to release upgrades of SCO' s Linux-based products.
    Is IBM suggesting that they have found out during discovery that SCO is infringing on the GPL?
    • They certainly are (Score:5, Interesting)

      by griblik (237163) on Wednesday March 31, 2004 @09:59AM (#8724599)
      According to the filing as read by me on groklaw, SCO's attempt to impose extra licensing requirements puts them in breach of GPL section 5, which terminates their right to distribute under section 4. (ianal, could have read it completely wrong)

      IBM has IP in linux that they have only licensed under GPL. If SCO has no GPL rights, they have no right to distribute the code, and they're therefore infringing IBM's copyright.
  • by TopShelf (92521) on Wednesday March 31, 2004 @09:38AM (#8724447) Homepage Journal
    IBM is a decades-old giant in the American business community with a reputation to maintain, and will most assuredly have done their homework before trying to make such a bold move. This stands in contrast to SCO, which has basically bet their whole company on the outcome of these suits, and is thus willing to try just about anything, no matter how desperate, to make their case.

    Hmmm... I wonder what color parachute Darl has...
  • Checkmate, endgame (Score:5, Insightful)

    by Eggplant62 (120514) on Wednesday March 31, 2004 @09:39AM (#8724452)
    I'm most of the way through IBM's pleading of the counterclaims. I have one word:

    Wow!

    This is so well laid out that even a child of 6 could understand what it is that SCO has been up to these past 12 months. When I read IBM's lawyers' work, I want to jump up and dance with glee at the utter beauty seen within.

    When I read the work of SCO's lawyers or any statements made by the buffoons directing them, I want to cry. It seriously makes my head hurt, trying to wrap my brain around the utter bullshit they continue to spout.

    IBM has landed a crushing blow to SCO's claims. I predict that over the remainder of this week and through next we will see SCO's stock plummet back to its true value -- less than $1.

    Happy happy happy
    Joy joy joy
    • This is so well laid out that even a child of 6 could understand what it is

      Fetch me a child of six!
    • by scrm (185355)
      Agreed, really well written. From IBM's counterclaims [groklaw.net]:

      SCO undertook to create fear, uncertainty and doubt in the marketplace in regard to SCO's rights in and to that [Unix] technology.

      This has to be the first time I've seen jargon [astrian.net] actually fit concisely and neatly into a legal text!

      Go IBM...
  • by seniorcoder (586717) on Wednesday March 31, 2004 @09:43AM (#8724478)
    While SCO certainly looks like a despicable villan, it wasn't all that long ago that I viewed IBM in exactly the same light. So you'll have to excuse me from participating while everyone else chants "go IBM". Let's also not forget Microsoft's position in this affair, supplying the cash so that SCO could wage this legal war.
    Wouldn't it be a dream world if all the lawyers spent all their employers' money suing each other and left us alone to produce world class open source software?
    It seems to me that open software is the only way to break the enternal circle of despising an abusing software company, waiting until it self-destructs and promptly promoting another one into the same position.
  • Not at all over (Score:5, Insightful)

    by greppling (601175) on Wednesday March 31, 2004 @09:50AM (#8724527)
    If IBM gets granted this declaratory judgement, this has very little impact on the whole case (from its legal side, that is). Why? Because in front of the court, while SCo has talked about copyright infringement, it has always stressed and recently completely moved it's focus on the contract dispute with IBM (alleging it violated its trade secrets).

    So this declaratory judgement that IBM is not infringing copyright is very tangent to the SCO vs IBM case. But of course, it would give very nice munition against the SCO out-of-court FUD, which is probably why IBM is asking for it. It might also have an impact on SCO vs google etc., I don't understand the issue well enough to judge this.

    Also, that IBM is filing for this judgement now doesn't mean that the judge will rule on this next week. AFAI understand, this judgement will just be part of the final ruling on the case.

    • Also, that IBM is filing for this judgement now doesn't mean that the judge will rule on this next week. AFAI understand, this judgement will just be part of the final ruling on the case.

      Exactly. Some people are confusing declaratory judgement (i.e. asking the judge to produce a definitive ruling on a matter... eventually) with summary judgement (i.e. asking the judge to throw the litigious bastards [sco.com] out of court now, because they have no case).
    • Re:Not at all over (Score:3, Interesting)

      by Anonymous Coward
      In light of that fact that SCO has dropped it's trade secrets claim [groklaw.net] over a month ago, I think this is much more important than you are saying.
  • by maximino (767005) on Wednesday March 31, 2004 @09:56AM (#8724577)
    A victory by IBM on the motion for declaratory judgment would be fantastic, but it wouldn't be the end of this lawsuit. SCO is actually not making any copyright or trade secret claims against IBM as of their most recent amended complaint (which is centered on bizarre contract interpretations); IBM is simply trying to close that avenue down for them to try and use in the future. However, this is a Good Thing for other people, because if granted it will put the kibosh on many of SCO's other claims. If IBM didn't violate any copyrights, how could AutoZone? But it's not time to break out the champagne yet -- especially until the judge actually rules on the thing.
  • by morelife (213920) <f00fbug@postRE M O VETHISman.at> on Wednesday March 31, 2004 @09:59AM (#8724598)
    If the judge grants what IBM wants, the case will be over, SCO's stock price will have created much revenue for them, as did the investment by MS, Linux will have had doubt cast upon it needlessly, and there will have been no punishment for Darl.

    I wish IBM would fight them in court, win, and countersue for further damages to prove the point.

    There's a Good Thing that has happened as a result of the SCO saga to date:

    the Linux development commmunity is now being a lot more careful about code re-use, attribution, credits, and licensing issues in redistributed packages.

  • by Illissius (694708) on Wednesday March 31, 2004 @10:01AM (#8724612)
    For all of you who were suggesting IBM do the same thing when [H]ardOCP did this against Infinium, well, they just did :).

    Here's what the [H]'s website says about it:

    IBM Amends Suit:
    IBM has amended its counterclaim with a Declaratory Judgment action against SCO looking for a resolution to the current Linux lawsuit that is pending.


    By seeking a declaratory judgement, which a judge could issue as soon as the discovery process is over and before the case goes to trial, IBM appears to be indicating that has conducted an internal analysis of SCO's claims and has found them to be without merit, said Jeff Norman, an intellectual property partner with the Chicago law firm Kirkland Ellis LLP.

    This is basically the same thing HardOCP has done with Infinium Labs.


    Bennett's lawsuit seeks a declaration from the court that the article did not constitute unfair business practices or competition, trademark infringement or dilution, common law or trade libel, trade disparagement or tortious interference.
  • /. suppression ;) (Score:5, Informative)

    by griblik (237163) on Wednesday March 31, 2004 @10:07AM (#8724655)
    For those of you who (like me) regularly check groklaw for updates and news, they've got a cut down headlines-only page.

    http://www.groklaw.net/staticpages/index.php?page= Headlines [groklaw.net]

    That page puts less stress on their server, so if you'd like to help reduce their bandwidth costs...
  • by originalhack (142366) on Wednesday March 31, 2004 @10:10AM (#8724684)
    After all the screaming about software patents on this list, we get a nice demonstration from IBM about what they are really good for. I, for one, am glad that IBM kept busy filing them. They have not behaved like a bully, but are not a pushover when someone else misbehaves.

    25 years ago, if you told me that IBM would be the champion of the little guy, I would have told you that you were nuts.

  • by lone_marauder (642787) on Wednesday March 31, 2004 @10:12AM (#8724705)
    Everyone files for declaratory (tell that SOB that he's full of shit!) or summary (we don't need no stinking trial, find me innocent right now!) judgement in civil cases. Judges almost never issue them. While it is emotionally good to see IBM responding in some way, this really doesn't indicate or change anything about the status of the case.

  • by grendelkhan (168481) <scottricketts@g[ ]l.com ['mai' in gap]> on Wednesday March 31, 2004 @10:36AM (#8724917) Journal
    Normally, these motions are standard, but I think this one may fly since IBM is waiving the Novell / Old SCO APA claiming that Novell maintains oversight of the whole UNIX business and has told SCO to sit down and shut up. That alone may actually get this motion approved.
  • by Sheepdot (211478) on Wednesday March 31, 2004 @10:40AM (#8724965) Journal
    Stolen From Groklaw commentor to give a basic summation of how IBM is approaching this:

    57. ...In its first complaint, SCO principally alleged that IBM had misappropriated SCO's trade secrets in UNIX System V....

    60. ...SCO further persisted in maintaining for nearly a year the unsound claim that IBM had misappropriated its trade secrets. Yet when pressed to identify a single trade secret that IBM had allegedly misappropriated, SCO could not, even after being ordered to do so by the Court. SCO finally (and properly) abandoned this claim, upon which SCO's entire lawsuit was initially premised, in its Seconded Amended Complaint.

    72. Although its initial complaints against IBM did not include a claim for copyright infringement, SCO stated publicly after it filed suit that IBM had infringed SCO's copyrights, and threatened to sue IBM for copyright infringement with respect to Linux. For example, at its 2003 SCO Forum conference, SCO represented to attendees, including press and financial analysts, that Linux is an unauthorized derivative of UNIX, that IBM had infringed its rights in Linux, and that SCO was entitled to damages and injunctive relief against IBM.

    73. At the December 5, 2003 hearing concerning discovery issues, SCO further represented to the Court that SCO would be filing a copyright infringement action against IBM "within the coming few days or no less than a week."

    102. Yet despite an Order directing SCO, among other things, to "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action action against IBM" by January 12 2004, SCO failed adequately to do so. In its supplemental responses purportedly submitted in compliance with the Order, SCO still failed to identify a single line of UNIX System V code that IBM allegedly misappropriated or misused.

    103. In fact, finally realizing that it could no longer maintain the illusion that IBM had misappropriated its trade secrets, SCO dropped its trade secret claim altogether. SCO continues, however, to press equally meritless contract and other claims against IBM, despite being unwilling to identify the UNIX System V code that IBM allegedly misused in violation of any agreement.

  • by Anonymous Coward on Wednesday March 31, 2004 @11:46AM (#8725534)
    There have been SCO supporters saying that a Utah jury would be likely to support a home team David, being "bullied" by Goliath IBM.

    This isn't neccessarily reasonable. Utah is home to a _lot_ of high tech people. IBM, Novell, EBay, CA, and dozens of other big names in tech have significant workforce in Utah. The local papers may paint a pro-SCO picture, but the reality on the ground is a little different. If the newspaper reporters bothered to peek into their own server rooms, they would find a bunch of Utah geeks cheering against SCO.
  • by mabu (178417) on Wednesday March 31, 2004 @01:22PM (#8726504)
    RHAT is up at $23.24/share
    SCOX is at $8.40/share

    tick.. tick.. tick..

    From an article today on Businessweek [businessweek.com]

    Will the threat of SCO litigation slow down Linux adoption?
    Not likely. The lawsuits have been in the air for a year now, yet sales of Linux-based servers continue to pick up steam. In the fourth quarter of 2003, they grew 51% over the same quarter last year, according to Gartner. In comparison, sales of Windows servers were up 15.9%, and Unix servers dropped 4%. In the last two years, Linux' share of the server market has grown from 2.7% to 7%. With big computer makers like IBM, Hewlett-Packard (HP ), Dell (DELL ), and now even Sun Microsystems (SUNW ) selling Linux boxes, there's little reason to think Linux will lose its momentum.

    • by Teahouse (267087) on Wednesday March 31, 2004 @01:45PM (#8726817)
      That's what this case is actually all about. SCOX was practically a penny-stock when this started. Darl had no idea how to get them out of that hole by innovating, so litigation gave the stockholders the stock bounce they needed and demanded.

      Now, the stock is dropping again. A buddy of mine (who is a broker) told me that the bubble will burst at about $4.50. At that poing, the drop to under a dollar will be very fast. Once that happens, these cases will go away because SCO will either have to hold it's remaining money to find another way out (wow! you mean innovate and try some R & D?!?) or follow this rabbit into insolvency very quickly.

      Once the stocks hit >$4, Darl's "strategy" will be considered a failure, and SCO will fire him and seek another company to buy them (for virtually nothing) or stagger on as a dying company maintaining a shrinking customer base of legacy-UNIX systems.

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