IBM Asks Court To Declare Linux Non-Infringing

A Cyclic Graph writes "We finally have a redacted version of IBM's Reply Memorandum in Support of Summary Judgment on Counterclaim 10 in SCO v. IBM. In short, IBM is asking the Court to declare that Linux doesn't infringe upon any of SCO's purported intellectual property. This document is the last word on that matter until the Court either declares there to be no doubt that Linux is free of infringement, or decides that that issue has to be decided by the jury. In their brief, IBM points out that SCO puts forth a convoluted set of non-answers referencing each other to disguise it's inability to answer IBM. Their set of cross-references is so complex that Groklaw readers graphed the claims to make what little sense of them they could."

Re:Groklaw readers graphed the claims

[E IS mC(Square)]

(IMHO)
A circle represents SCO's response to IBM on any one given point.

The number inside the circle represents IBM's claim.

The arrow (including the line) represents SCO's (so called) response.

e.g. the (187) -> (45) in the middle of the image means in response to IBM's claim 187, SCO is redirecting the court to SCO's response to IBM in IBM's claim 45. and so forth.

Its actually a pretty darn interesting ways to represents SCO's bullshit.

It's a race

[EmbeddedJanitor]

Remember that SCO's lawyer is Darl's brother. They're probably trying to get as much SCO money salted away by paying legal fees.

IBM does not really benefit is suing. SCO is broke. What are they going to get?

Re:This could set an interesting precident

[dunng808]

I have not seen IBM make this claim. What IMB has stated is that the 300-odd lines of code identified by SCO as infringing lack the originality required for copyright protection. Most are comments. Many of the remaining are #DEFINE statements in c language header files, the kind of stuff previously established in common law as unqualified for copyright protection.

Consider this:

I am a man. (copyright Gary Dunn, all rights reserved).

I could claim it, but no court would uphold my claim.

Now, go relax and unwind your brain. Software is generally recongnized as subject to copyright protection; there are specific portions of law which apply specifically to software. Don't worry, the GPL is not going to die.

Wow, what lawyering!

[UnknowingFool]

Reading the filings you can see why some lawyers cost so much. At the same IBM's lawyers building an almost invincible legal position on every one of their claims, they take huge swipes at SCO's claims. They point out flaws in SCO's arguments and point out when SCO has failed to address an important point. No detail is forgotten even the little detail of SCO's use of cross referencing to hide their lack of evidence. Unfortunately for SCO's lawyers, they didn't have much in the way of evidence and are reduced to lawyer's tricks.

Groklaw is hosed right now but there was one moment in the March 7th transcript that is indicative of the case. SCO's Brent Hatch is referring to an IBM document. IBM's lawyer, Amy Sorenson, reminds the court that the document is marked confidential and trying to work out an agreeable way of handling it whether it meant clearing the court room. SCO responds that IBM could waive the confidentiality. The court interjects noting that IBM wouldn't have mentioned the confidentiality if they wanted to waive it. While the judge and Ms. Sorenson continue to discuss how to best proceed in terms of procedure, SCO's Hatch begins to argue that nothing in the document (in his opinion) should be marked confidential. Ms. Sorenson responds with a "that's your opinion" and says as long as the document isn't directly quoted, IBM is satisfied with SCO referencing it in open court. IBM and the court are working on a case. SCO is offering red herrings.

Re:This could set an interesting precident

[Yfrwlf]

The BSD license allows for what you describe, it's "truly free", in a sense, to my knowledge. It still exists, so OSS would not be dead. Now, would it be more or less dead? I'm not sure, but I think people would have been upset all the same, so would they have formed groups that upheld the "lets keep everything free and open" attitude, or would they have found some other solution? Using the law to enforce an anti-monopolistic idea seems to be a good thing, though. In the real world, Capitalism seems to require anti-monopoly laws to keep things in check, otherwise it seems to me it is a failed system. Software is much harder to destroy/control/monopolize though, so it would do much better than material businesses in a completely open economy. It's really hard to think about what life would be like in such an open system, and where we'd be at in terms of technology and software. Perhaps people would have found some interesting ways to fight back under such a system in order to keep things more open and competitive and pro-consumer.

That's Cravath

[Animats]

Reading the filings you can see why some lawyers cost so much. At the same IBM's lawyers building an almost invincible legal position on every one of their claims, they take huge swipes at SCO's claims. They point out flaws in SCO's arguments and point out when SCO has failed to address an important point. No detail is forgotten even the little detail of SCO's use of cross referencing to hide their lack of evidence.

IBM is represented by Cravath, Swayne, and Moore, and that's how Cravath works. They have a very organized staff checking everything the other side puts out. Everything goes into a litigation support system (Cravath was the first law firm to use one, and it was developed by IBM for a famous IBM case). At least two different lawyers check over everything. One of Cravath's slogans used to be "For those must-win cases". Cravath often wins simply because the other side makes mistakes, and they don't.

All this is incredibly expensive, but it works.

Summary is wrong

[elronxenu]

IBM has not asked the court to declare Linux as non-infringing. It has asked the court to declare that IBM's Linux-related activities are non-infringing.

Obviously Linux in total is a superset of IBM's contribution to Linux. IBM probably doesn't have standing in the court to ask for a declaration covering the whole of Linux, and if they attempt to do so, that is likely to cause the entire motion to fail.

If, however, IBM wins this Partial Summary Judgement motion, as they may well do, then this is still an extremely important result for linux. Unlike the poster who recommended reading the oral arguments, I recommend skipping the oral arguments and go instead for IBM's written motions and briefs. They are very well written and logical.

IBM constructs their motions as a form of logical-or. If the Judge accepts $REASON1 or $REASON2 or $REASON3 then the judge must rule in IBM's favour. So IBM offers multiple concurrent chains of logic supporting their case. The judge needs only to accept one of them, in order to rule for IBM. But each $REASON is fully detailed - supported by facts, evidence, legal argument, case history precedents.

SCO's filings on the other hand, are like a shell game. It's hard to pin them down to facts. They pretend to be Caldera and Santa Cruz and even AT&T when it suits them; at other times they treat them as different entities. Their answers frequently say "please refer to some other answer", and (as this latest IBM filing says), SCO's replies don't really answer the question or dispute the fact, they raise some other issue or introduce non-relevant assertions.

All in all, it's most entertaining.