IBM's Counterclaim 10 Outlines 5 Ways SCO's Wrong

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

Very sad that european courts can deal with utterly absurd claims so very quickly in corporate cases (and have done so for SCO's), while the SCOX vs. IBM and SCOX vs. Novell still drag on even though by the judge's comments it's clear they know the thing is a farce.

Re:the US system

U.S. and European cases are apples and oranges. The American and British legal systems grew out of English common law and are heavily constrained by precedent, a principle known as stare decisis [wikipedia.org] . Civil law systems - most are derived from or similar to the Napoleonic Code [wikipedia.org] - recognize some precedential "super cases" but generally allow a judicial official to rule without regard to past decisions. This makes is possible to dispose of some matters more quickly, but you'll also see some things litigated over and over again that aren't repeated or end very quickly on a motion to dismiss (pursuant to a prior, precedential ruling) in the U.S. common law system.

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

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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but I doubt that the SCO case will establish a precedant

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

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The American and British legal systems grew out of English common law

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

Re:the US system

I think the main problem with the U.S. system is the judge can't impose sanctions like making the plaintiff's counsel get a Cleveland Steamer [urbandictionary.com] from Courtney Love.

If you risked that evert time you filed a frivolous lawsuit, you'd think twice, wouldn't you?

- Greg

Re:the US system

To me the main problem is that the judge can't ask questions. In a better "justice system" I would see a conversation like this.

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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Yeah, but IBM could have asked those same questions, and the judge could force SCO to respond to them.

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But how would the lawyers make their millions in that trial? :)

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It's pretty close to being done here too. The scheduling orders linked on groklaw ( last full sched [groklaw.net] and amendment [groklaw.net]) have summary judgment oppositions in October, replies in November, and a jury trial starting in February for any surviving claims. If that sch

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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):

(3) the allegations and other factual contentions have evid

Reason why is probably $$$

Lawyers including judges need it that way.

What the hell happened to quick and speedy trials ?

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Yes, both of them.

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In other news, SCO has requested a full source code dump of the soon-to-be-released blockbuster game 'Duke Nukem Forever', claiming to have evidence that certain aspects of the game closely resemble (or may have been copied) from their seminal (but also as

The dog is laughing at SCO

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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Very sad that european courts can deal with utterly absurd claims so very quickly in corporate cases (and have done so for SCO's), while the SCOX vs. IBM and SCOX vs. Novell still drag on even though by the judge's comments it's clear they know the thing i

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It could be that both parties want (or at least don't mind) the slow pace.

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 battl

Claims?

Wait, so SCO actually had claims? As in, they claimed that IBM actually was doing something wrong? Funny, from everything I've read, I thought SCO had brought IBM to court on account of "nanny-nanny boo-boo."

Re:Claims?

My guess is SCO didn't expect it'd go this far. They were hoping they'd get settlements, no matter how minor, from the companies they were taking action against. In the same way that companies often settle out of court when a person sues them, just to avoid the potential legal costs of the trial - no matter whether the person suing is in the wrong or not.

Re:Claims?

My guess is SCO didn't expect it'd go this far. They were hoping they'd get settlements...

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.

Re:Claims?

According to the consensus here on Slashdot, I thought the purpose was to drive SCO stock prices up so the executives could pump and dump, meanwhile getting funding from Microsoft so that they could stall and keep the whole thing in court as long as possible so that CIOs would be nervous about Linux.

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According to the consensus here on Slashdot, I thought the purpose was to drive SCO stock prices up so the executives could pump and dump, meanwhile getting funding from Microsoft so that they could stall and keep the whole thing in court as long as possib

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One of IBM's counterclaims (I think either the 6th or the 9th... but I can't remember exactly) is also a Lanham Act claim.

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Actually, Novell never alleged Lanham Act violations. It is IBM and Red Hat that are suing for those.

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Wait, so SCO actually had claims?

Of course they did.

SCO claimed that that had claims.

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It just me, or does this read like spam?

I read the title then the little blurb.......this whole summary reads like something a spammer would stick to the end of an email to try and get past a filter.

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The first portion of the summary is "My article at IPW reads:" which (if not spam) is certainly /. whoring.

Re:It just me, or does this read like spam?

It WAS spam.

Re:It just me, or does this read like spam?

I read the title then the little blurb.......this whole summary reads like something a spammer would stick to the end of an email to try and get past a filter.

FTFA: ...Those pronouncements and the antagonism of the Linux aficionados has raised the various lawsuits above prosaic tedium... ...the imbroglio will Novell which seems to indicate that they do not even own the code which they assert some Linux may infringe upon ...

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.

Dear SCO,

How much can I have a 'linux license' for now?

You filthy teabaggers.

Refund for Microsoft?

Does this mean Microsoft should get a refund for the "license" they bought
from SCO to use some Unix code.

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No, MS only bought "piece of mind". The SCOSource license was a hilarious bit of salesmanship: buy this just in case something we're suing about turns out to have evidence backing it up.

Here's a similar license:
http://btetc.blogspot.com/2006/07/mattsource. [blogspot.com]

Re:Refund for Microsoft?

IBM requested full discovery of all documents that mentio MS and SUN. There will be more lawsuits that IBM can initiate against MS from that pile. This gives IBM an excellent tool to leverage against sun and MS in the future.

This suit was a huge tactical mistake by MS. They already regret funding it and they will regret it even more in the future.

The SCO mess is almost over

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:

• 17-Mar-06 Close of All Remaining Discovery (DONE)
• 19-May-06 Initial Expert Reports (DONE)
• 17-Jul-06 Opposing Expert Reports (DONE)
• 28-Aug-06 Rebuttal Expert Reports (DONE)
• 22-Sep-06 Final Deadline for Expert Discovery (DONE)
• 25-Sep-06 Dispositive Motions Summary Judgment Motions (DONE)
• 13-Oct-06 Responses to Requests for Admissions (DONE)
• 25-Oct-06 Oppositions to Dispositive Motions Summary Judgment Motions
• 24-Nov-06 Reply Briefs on Dispositive Motions (Reply Memoranda)
• 12-Jan-07 Rule 26(a)(3) Disclosures
• 19-Jan-07 Final Pretrial Order
• 22-Jan-07 Deadline for Exchanging Proposed Jury Instructions
• 26-Jan-07 Motions in Limine
• 30-Jan-07 Special Attorney Conference and Settlement Conference
• 05-Feb-07 Oppositions to Motions in Limine
• 09-Feb-07 Reply Briefs on Motions in Limine
• 26-Feb-07 5-week Jury Trial

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.

SCO's lawyers have used brilliant stalling tactics. The longer the case is before the court, the longer the FUD lasts; the longer some people stay out of jail (Darl could be in real trouble because of some of his public statements.) There could be real trouble because of Lanham act violations. AllParadox and Marbux (lawyers) seem to agree that Darl and co. will be found personally liable to the extent that they will lose all their assets.

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

Yes I know it's OT but the link is not correct, the actual words are

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 quote

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A couple of years from now, when we have a new president, the Microsoft antitrust settlement could be re-visited.

I can't see Rumsfeld doing that.

Misuse of copyright

Misuse of copyright means that someone uses copyright for a purpose that isn't intended for copyright. In SCO's case it means that by claiming copyright on 300 or so lines of code, they claim to control a zillion other lines of code. IIRC, it amounted to

Don't need actual code copying

Their first claim is a bit off -- in order to find copying of a computer program, you don't actually need to have copying of the actual code, either source or object. It can be sufficient to copy the structure. So, for example, using somebody else's design documents to generate your own code can still be an infringement, even though you never even SAW their source code.

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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Critically for SCO however, the expression of the idea must be in code form. The computer does not run on comments.

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 wa

Re:Don't need actual code copying

While it is true that copyright can be violated without literally copied code, your comment seems to overlook the context of CC10, which is extremely important.

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:

Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'it's in there somewhere, you figure it out.'

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:

The particular lines SCO has identified as allegedly copied are a scattered and fragmentary collection of define statements, data structures and function prototypes, not qualitatively different in form or character or content or their individual importance from the many thousands of lines of other interface code. (ex 215 P37) Nor is their any apparent pattern, regularity, consistency, or cohesiveness to the accused code; it is scattered throughout the files, sometimes only a line or two in a file

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

What SCO relies on as evidence of code copying is their employee Sandeep Gupta's Redacted Declaration [groklaw.net], in which he details what he believes to be the major copying offenses. However, Gupta's analysis of the code, as rebutted by Brian Kernighan [groklaw.net], doesn't exclude materials that SCO couldn't claim copyright over, such as code that is mandated by standards and common industry practices, materials which have already been placed in the public domain, and elements of code over which SCO couldn't claim ownership. Also, IBM claims that they have received from Caldera licenses to use the code.

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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Don't generally respond to AC's, but I'll make an exception here.

Uh, no, I'm not. I'd point you to, for example, http://www.edwardsamuels.com/copyright/beyond/arti cles/ideapt1-20.htm [edwardsamuels.com] for a decent overview. Look for "Learned Hand" and check out some of t

Brief Summary

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

Eh? It's in the document very clearly.

1. SCO has no evidence of improper action by IBM
2. IBM has a license to use all of the Linux code (this covers any Unix code which may have been put into Linux by 3rd parties)
3. SCO cannot pursue any claims because they knew what was in Linux years before bringing suit
4. SCO cannot prove substantial similarity between Linux kernel and System V
5. SCO has abused its copyrights (if it even has any) rendering them unenforceable.

Serious mistake in the article about the law

The article says that the penalty for copyright misuse is forfeiture. This is not true at all.

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

Did you even bother to read the fine memo by IBM? On page 43 of the second pdf, the IBM lawyers say:

V. SCO HAS MISUSED ITS ALLEGED COPYRIGHTS
SCO's infringement claim should also be rejected because SCO has misused the copyrights and therefore is not entitled to enforce them.

IBM's lawyers follow this up with five pages of discussion and explanations including copious references to previous cases all of which (they claim) back up their statement.

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 lawyers or the troll? A tough call, but I'm going to side with IBM's lawyers on this one. Of course the only opinion that really matters is that of the judge.

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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Umm... What you've quoted says 'SCO is not entitled to enforce them'. What your PP said is the penalty for misuse is that the holder does not '[get] to enforce for as long as the misuse continues'. Those two statements are entirely harmonious. SCO doesn't

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The key difference between the two phrases you say are harmonious is the words "... for as long as the misuse continues". But further on you say that losing the right to enforce a copyright is different from forfeiting the copyright. ISTM that the IBM s

It's the lawsuit we had to have

[Aussies will get the ref above]

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!