IBM's Counterclaim 10 Outlines 5 Ways SCO's Wrong 121
ColonelZen writes "My article at IPW reads: But, however slowly, the wheels of justice do grind on. The discovery phase of SCO v. IBM is now complete, and as per the court's schedule the time to raise Summary Judgment issues is now. And IBM has indeed raised them ... such that it is very possible that all of SCO's claims against IBM could wind up dismissed piecemeal in those motions. ... Yesterday, IBM's redacted memo in support of CC10 hit Pacer. ... This is 102 pages detailing five independent but overlapping, direct and powerfully detailed reasons why SCO's claims of Linux infringement against its code are nonsense."
the US system (Score:5, Insightful)
Re:the US system (Score:5, Interesting)
Judges sometimes allow things to "drag on" in order to build a solid record for summary judgement (reducing the complexity and likelyhood of appeals) or establish a strong precedent for other courts in their district/circuit faced with similar issues in the future. A single thoughtful ruling in the U.S. can stand for decades and become a cornerstone of law. By way of example, a 1970 district court ruling (Georgia-Pacific Corp. v. U.S. Plywood Corp.) serves as the basis for royalty determinations in pretty much every patent case in America. The SCO/IBM litigation may be long, but could ultimatley produce a seminal opinion that influences contract and copyright cases for years to come, which couldn't happen in Europe.
Re:the US system (Score:5, Insightful)
Your general point is well taken, but I doubt that the SCO case will establish a precedant of much interest since as far as I can see there are no interesting legal issues at stake, just an essentially fraudulent complaint.
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This will be bigger than sarbes&oxley
Re: Darl in jail (Score:2)
While "Darl in Jail" (TM:) sounds logical to many (at least many /.-ers) I suspect it wont happen: he either die early (from enjoying his fortune fast while he still got it), relocate somewhere else or ... there is nothing to put him in jail.
SCO may go to bankrupcy but I think he's that kind of person with some golden parachute alredy deployed. And IMO, justice works differently for rich people. (try imagine some Little Self Employed Joe Average Without Huge Cash Reserves doing such stunt as SCO with just
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Nor should it. In a common law system, setting a precedant where citing a previous one would do is usually a bad thing.
In fact it's such a bad thing, it's usually preferable to keep paying out rope for one or other of the parties to hang themselves with, which I think is the point of the GP post.
The basic operating principle of the US system is this: the courts interpret, and the legislature corrects that interpretation. It's a pretty good system, o
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That might very well be the case, but I think it's pretty certain that this case would have been over in the UK by now as well. Plus, the loser would have to pay all court costs, which is why we don't get so many ridiculous cases in the first place.
Bob
Re:the US system (Score:5, Funny)
If you risked that evert time you filed a frivolous lawsuit, you'd think twice, wouldn't you?
- Greg
Re:the US system (Score:4, Insightful)
SCO: They stole our code.
IBM: Did not!.
Judge: SCO, what code did they steal?
SCO: Huh? Wha? We don't know. Did we say they stole code? No, they did not steal code, we meant they broke a contract.
Judge: Which contract did they break?
SCO: Well we don't really know and the contract wasn't signed with us.
Judge: Case dismissed.
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SCO: They stole our code.
IBM: We doubt it, tell us what we stole.
SCO: They stole our code. Lots and lots of it.
IBM: Judge, make them tell us what we stole.
Judge: SCO, tell them what they stole.
SCO: Huh? Wha? We don't know. Did we say they stole code? No, they did not steal code, we meant they broke a contract. Of course, you didn't really want us to tell IBM exactly what code is affected
Cleveland Steamer is for whimps (Score:2)
Or is than "an hot carl". I can never remember what is in fashion now.
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As for the SCO's claims being fraudulent, as asserted in another response to the parent, that's awfully hard to establi
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When I suggested that SCO's case is "essentially fraudulent", I said "essentially" precisely because it isn't easy to establish. There is arguably an argument for sanctions under Rule 11(b)(3):
since SCO evidently had little or no evidentiary support for its claims, but it has waffled s
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Plus, the loser would have to pay all court costs, which is why we don't get so many ridiculous cases in the first place.
Which makes it harder for someone to file a lawsuit against a party that has harmed them.
FalconRe: (Score:2)
How so ? There are no interesting questions that are even *asked* in the SCO case. So it's beyond me how any interesting questions could be *answered* by this case.
What we have is a company that after several years are still not even close to actually stating a claim, much less providing evidence for anything. In what way is this supposed to influence anythin
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You are missing the point. As one of German judges said, he can rule on current situation, he doesn't have to look back to what matter was 10/20/30/+ years ago as his US colleagues have too.
What's more, the law might not change, but reality
Louisiana ...Re:the US system (Score:1)
Reason why is probably $$$ (Score:3, Insightful)
What the hell happened to quick and speedy trials ?
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Only a fool would think that the $$ doesn't buy them some serious influence. Think about the absurdity of it: lawyers giving lawyers money to win elections, so that the government will make it easy to drum up more business. Democracy will always be in jeopardy because money decides elections.
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There are no such rights for a civil trial.
There is only the right to a trial by jury, and then only if the value in controversy exceeds twenty dollars.
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The dog is laughing at SCO (Score:4, Funny)
And then Nintendo sues SCO, alleging that "Nuke Ducks Forever" is based on Nintendo's "Duck Hunt" game for NES. Even the dog is laughing at SCO.
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As the SCO v. Daimler-Chrysler case shows, US courts can deal swiftly with bogus claims. Part of the reason the IBM case has dragged on so long is IBM's approach to the case. Instead of making a motion for dismissal -- which might have dealt with
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SCO wanted discovery to drag on so they could continue fishing for evidence to back an improverished case.
IBM might not mind the slow pace because they know they'll win a battle of attrition since SCO has limited funds. Also, IBM couldn't buy this kind of good publicity amongst IT managers.
Claims? (Score:5, Funny)
Re:Claims? (Score:5, Interesting)
Re:Claims? (Score:5, Insightful)
And this I believe is why IBM decided to take their time, go through the entire court process, despite the increased costs involved -- this time -- to make an example out of SCO. Otherwise, IBM would be inviting multitudes of other lame and unsubstantiated lawsuits from all sorts of "IP" firms with no products. IBM is spending the time and cost now grinding SCO into salt to send a clear message to anyone else in the tech/patent business -- Don't mess with us!
It actually shows a long-term kind of thinking which is sorely lacking in most of the corporate world today.
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Ohh the irony! (Score:2)
Re:Claims? (Score:5, Funny)
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Redhat's suit against SCO in fact specifically makes that allegation, though they don't really have a cause of action, so it's really just color commentary.
IBM may be the biggest of SCO's legal opponents, but Re
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Most poker players, when their bluff has been called, will slow down and fold. SCO made the choice to go all in. While there is no law against that, it was a very foolish and costly business decision. Because it is now becoming more and more clear, that SCO did not have any of the evidence they were boasting.
I suspect B
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Of course they did.
SCO claimed that that had claims.
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It just me, or does this read like spam? (Score:5, Funny)
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Re:It just me, or does this read like spam? (Score:4, Interesting)
Re:It just me, or does this read like spam? (Score:5, Funny)
FTFA:
Nope, I think paragraph long sentences and stuffing yout text with rare words in inappropriate locations is a very good way to get your message accross.
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This is targeted to people who'd know what it means. The rest need pay no attention. That said I'm gonnas dumb this sig for something more commonly understood pretty soon.
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I'd expect any adult native (or fluent) English speaker to be comfortable that English is not a Romance but indeed a Germanic language. Even though it has been influenced by French, the English language is much more closely related to German (cf. the Low German language, which is somewhat similar to English).
Dear SCO, (Score:5, Funny)
You filthy teabaggers.
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Refund for Microsoft? (Score:4, Funny)
from SCO to use some Unix code.
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Here's a similar license:
http://btetc.blogspot.com/2006/07/mattsource.html [blogspot.com]
BTW I think MS might deserve a refund, having not got the "piece of mind" they were buying. That is to say: this maneuver backfired big time; IBM's response has laid waste to years worth of FUD, and Linux has 5 times the mindshare it used to.
Re:Refund for Microsoft? (Score:4, Insightful)
This suit was a huge tactical mistake by MS. They already regret funding it and they will regret it even more in the future.
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The SCO mess is almost over (Score:5, Informative)
The reason this has been such a slow process is that SCO is the plaintiff, and they're stalling. Usually, the plaintiff, who initiated the case, is pushing the case forward, while the defendant tries to stall. This case is backwards.
But stalling only works for so long. SCO was able to drag out pretrial discovery for years. But now, discovery is over. No more surprises. No more "we'll disclose the evidence when the time comes" from SCO. That deadline has past. Now the pace picks up. Here's the final part of the case schedule [groklaw.net], as set by the court:
Notice how the events come closer and closer together as the trial date approaches and the judge becomes more directly involved.
The next exciting moments will come in late November or early December, when the judge decides the summary judgement motions. SCO will then be worse off than they are now; the only question is how much worse off.
Maybe IBM has also slowed progress. (Score:5, Interesting)
There is also reason to believe that IBM may not wish this case to end as quickly as it otherwise might. What the judge and the SEC and the AG do to SCO, and everyone involved with this scam, will serve as a warning to anyone else who thinks they can pull a similar stunt. It is not for nothing that IBM's lawyers are nicknamed the Nazgul. What matters to most of us is that the judge will find that Linux is pristine wrt the taint of any Unix code. That's important to IBM because they seem to have bet the farm on Linux. Unix, AIX, Dynix, mainframe, etc. are slowly subsiding and IBM will have trouble surviving in a Microsoft only world. They need Linux and they need the business community's confidence that they can use Linux without being sued.
The other thing that might have been lost if the case ended sooner is Goldfarb's (Baystar finance) declaration in which he fingers Microsoft as being behind at least some of SCO's litigation financing. A couple of years from now, when we have a new president, the Microsoft antitrust settlement could be re-visited. If Microsoft is found guilty of financing SCO's lawsuit (it's illegal to do so) then Microsoft could be facing breakup again.
This is all big stuff for IBM and they do have some reason to want to see the wheels of the law grind exceeding fine. origin of quote [phrases.org.uk]
OT: correct origin of quote (Score:3, Informative)
Gottes Muhlen mahlen langsam,mahlen aber trefflich klein
Ob auss Langmuth er sich seumet, bringt mit Scharff er alles ein.
Sorry to be a pedant but I am always annoyed when a source quotes a translation as the original.
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I can't see Rumsfeld doing that.
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If it does and he is, my family and I are packing up and leaving. It's a beautiful place, but hasn't been the home of the free in some time now. If it doesn't start heading back that way, there are better places to be.
Regards,
Ross
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5 years based on absolutely nothing - not too bad. (Score:2)
As for Darl, he's pocketed about $2 million in the last four year, which isn't bad for a small-time scam artist like Darl.
Overall, I'd say the scam was a great success for the scammers. Maybe not all they hoped for, but a success none-the-less.
And please forget this non-sense about the scammers being held accountable. That sort of thing
Misuse of copyright (Score:2, Interesting)
One of the cases IBM cites is interesting. In Lasercomb v. Reynolds, Reynolds et al copied Lasercomb's code and sold it under their own name. That should be a slam dunk conviction, right? The court let Reynolds off because Lasercomb
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>It isn't intended to enforce a license fee on me. Once I have purchased a copyrighted work,
>it is mine forever to do anything I wish, except copy.
except microsoft is not using copyright to enforce licensing fees. it is using
the EULA to enforce licensing fees.
as in LA="license agreement"
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And as has been remarked on / before, a licence is a contract,and a contract must be agreed upon by both parties BEFORE YOU PAY IT in order to be enforcable.
Pushing down my throat whatever terms you feel like (not even mentionning altering them with a security update) after I have paid for the product has few chances of being regarded by a court of law as a valid pre-purchase agreement.
That's the fun point to be discussed by the justice system.
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Isn't that just like the "viral" provisions of the GNU General Public License and other copyleft licenses?
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No, you cannot distribute your zillion-line program without source if it contains 300 lines of GPL code.
However, YOU CAN REMOVE THAT 300 LINES and then distribute the rest just fine. This is NOT what SCO is claiming.
Please look up the what the sentence "REMOVE THE 300 LINES" means. It means ONLY 300 lines. It does not mean all your code. Your code is not "infected" one tiny little bit.
Perhaps I have managed to "get the facts" into your little pea brain. But I doubt i
Don't need actual code copying (Score:5, Interesting)
There's this concept in US copyright law called the "Idea/Expression dichotomy." Basically, this says that you can't protect an idea, but you can protect the expression of that idea. The difficult part is trying to figure out where the boundary exists -- the expression isn't just the written word itself. For example, a book about a boy wizard named Larry Hatter and his two friends at a British school "Pigzits" of witchcraft divided into four houses where they fight a guy called "he who nobody wants to name" with a lot of other similar details would probably infringe J.K. Rowlings' copyright in the Harry Potter character, even if none of the actual language was copied. (Parodies are another matter....)
The same thing goes in code. The fact that there is no actual code duplication does not mean that there isn't any copyright infringement -- it just means that SCO's case is that much harder to prove.
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1. IBM contributed the code
2. The code is protected
3. SCO owns the code
The reason their claims have been cut down from 294 to a mere handful is because they couldn't point to code they owned and code in Linux at the same time. Also, in your example, the sample text is VERY similar to the Harry Potter books. If you read IBM's exhibits supporting th
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So even if they are chasing expressions, they do need to point to actual code that implements the expression of the idea they are claiming was stolen, and then prove a bunch of other things. They seem to have had a very very hard time doing this.
By most accounts, and despite the hype of their claims that code was literally copied and that they have copyright claims on millions of lines of code,
Re:Don't need actual code copying (Score:5, Informative)
SCO was forced (by the judge) to disclose all possibly infringing code back in December of 2005. All sides agreed that this list from SCO could include methods and concepts as well as literally copied code. But, even for their methods and concepts claims, SCO was required to show where in "their" SysV code these methods and concepts were expressed and then also show where they were re-expressed in the Linux code.
SCO did not do this. Instead, they said that IBM already knew where the "copied" methods and concepts came from in SysV. IBM filed a motion to have all of these nebulous claims from SCO thrown out. The judge agreed with IBM and in her ruling said:
With the methods and concepts claims tossed out, IBM was left to deal with the literal copying claims. Most of these IBM refuted (in a separate memo) because the claims didn't involve any code that SCO even claimed to own. When the whittling down was done only 300-odd lines of "copied" SysV code were left. If you had bothered to RTFA, you would have seen that IBM claims:
You are correct that copyright can be violated without literal copying but that fact is not applicable to the article or the IBM memo the article is discussing. I also disagree with your conclusion that these documents presented by IBM merely make SCO's case "that much harder to prove". IMO, the vast collection of memos by IBM to support their summary judgment motions provide overwhelming proof that SCO's claims are impossible to prove. If I am correct, and there are no legal gaffes, then IBM will prevail in their summary judgment motions.
Re:Don't need actual code copying (Score:4, Interesting)
IBM's Summary Judgment motions are works of art. They're clear, they're concise, and I cannot see how SCO could squirrel out of having their entire case tossed away like so much garbage. I'm looking forward to the 25th of this month as we'll finally see what the SCO weasels try to pull to keep this whole farce alive. I expect to be laughing like a hyena as I read those memos.
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From this Supreme Court amicus brief [mit.edu]:
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I point you to Computer Associates v. Altai, a 1992 case, (It's online at http://digital-law-online.info/cases/23PQ2D1241.ht m [digital-law-online.info] ). A major quote: "if the non-literal structures of literary works are protected by copyright; and if computer programs are literary works, as we are told by the legislature; then the non-literal structures
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Uh, no, I'm not. I'd point you to, for example, http://www.edwardsamuels.com/copyright/beyond/art
Brief Summary (Score:5, Interesting)
I could only discern 4 reasons:
1) IBM's Unix agreements do not prevent them from contributing their AIX or Dynix code to Linux.
The Unix System V agreement only limited what IBM could do with original System V code. Code developed by or for IBM was never intended to be controlled by AT&T or its successors. Everyone who was involved in the original negotiations agrees with IBM on this point.
2) SCO's predessors (AT&T, USL, Novell) specifically told their licensees they could do what they wanted with their own code.
AT&T specifically told concerned licensees via newsletter and correspondence that all code developed independent of System V was theirs. Over the next two decades, AT&T and it successors except SCO allowed all licensees to do what they wished.
3) Even if 1 and 2 were not true, SCO's predessors and SCO itself have already waived any breaches that may have occurred.
Novell has waived any breaches. Also, SCO's distribution of Linux (which contains some of the alleged breached material) waives the breach. SCO's predessor's contributions to Linux also waives their rights to specific alleged material.
4) Statute of limitations prevent SCO from pursuing any claims.
The statue of limitations is 6 years in New York. SCO has known about alleged breaches since 1995. SCO first filed suit in 2003 which beyond the statute of limitations.
Re:Brief Summary (Score:5, Informative)
Serious mistake in the article about the law (Score:4, Informative)
If you read the Grokster [com.com] decision, you'll find a comprehensive discussion of copyright misuse, but as the PrawfsBlawg points out [blogs.com], for those who wish the short version, the penalty is not getting to enforce for as long as the misuse continues: "The effect isn't to invalidate the copyright, but rather to preclude its enforcement so long as the misuse is ongoing."
Larry Lessig has suggested [lessig.org] it *ought* to be penalized with forfeiture, but that isn't the law. People who are not lawyers or in any way trained in the law should probably be careful not to assert things that they don't know or can't prove, and should put links to proofs others can check, so others are not misled. A little modesty goes a long way.
re: Serious mistake in the article about the law (Score:5, Informative)
The article provided and accurate summary of IBM's misuse of copyright argument. It seems that you disagree with IBM's lawyers on the proper sanctions for misuse of copyright in this particular case. I believe that IBM's lawyers are lawyers and are very much trained in the law. They are also intimately familiar with this case.
So who should I believe? IBM's Nazgul or an obviously uninformed anonymous troll on Slashdot. H'mmm
The level of bogosity and FUD in your post is extremely high. Since you seem to imply that you yourself are a lawyer and are trained in the law, perhaps you should have signed-in to post your comment so that you could use it as part of an application for a job at BS&F, the law firm representing SCO. On second thought, it occurs to me that perhaps you are already working for them.
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Perhaps there's more in the document you don't link to that actually does agree with what you're saying, but if you're going to contradict and insult some
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In that case, the defendant tried to make all p2p sharing of the RIAA's music legal by making a misuse of copyright claim based on the idea that the virtual monopoly of the RIAA was against the public good. If the defendant had prevailed in their misuse o
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The article provided and accurate summary of IBM's misuse of copyright argument. It seems that you disagree with IBM's lawyers on the proper sanctions for misuse of copyright in this particular case. I believe that IBM's lawyers are lawyers and are very much trained in the law. They are also intimately familiar with this case.
IBM's lawyers also represent IBM and hence are not a reliable source. This particular argument may be well within the confines of copyright law or a novel and adventurous intepreta
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If you follow this link [blogs.com] (provided by the original poster) you will see that the defendant tried to make it legal to share all of the music controlled by the RIAA. If they had won their misuse of copyright claim than it would have become perfectly legal for anyone to share any music that is currently controlled by the RIAA. Here is an excerpt from the article (emph
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Redacted (Score:2, Insightful)
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I would tend to agree and would love to talk about it more....after the motion is decided.
It's the lawsuit we had to have (Score:3, Interesting)
But, yeah. There was going to be one sooner or later. There were questions about Linux that this suit answers.
Yes, it really is free. Yes, you can use it legally, for free. Yes, it really was developed without pinching anybody elses code. No, you will not get sued for using it.
Thanx SCO!
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EV! (Score:2)