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| SCO Asks Not to Litigate One of IBM's Counterclaims, Or in the Alternative, Not Yet, Or Separately |
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Tuesday, April 27 2004 @ 11:20 AM EDT
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(UPDATE: Please note that there is now a corrected Motion from SCO, asking that Count Ten only be dismissed or stayed. I will put it up soon, but I don't want anyone to be confused. Well. We were all confused, including me, but I have the new Motion, and it matches the Memorandum, linked to below.) SCO has filed a cynical motion with the court handling the IBM case, asking that three of IBM's counterclaims be dropped, stayed or bifurcated. They call it their MOTION TO DISMISS, OR, IN THE ALTERNATIVE, TO SEPARATE OR STAY, COUNTS NINE, TEN AND FOURTEEN OF THE COUNTERCLAIM-PLAINTIFF IBM'S SECOND AMENDED COUNTERCLAIMS AGAINST SCO. Whew. There's a mouthful. I translate it that they are desirous of a delay. If not, they'll settle for separating more of IBM's counterclaims out from the main claims. Um, they already asked that patents be separated and now some of the copyright stuff. What does that leave, exactly? Might this be another little hint that this is only a contract case after all and has very little, if anything, to do with "IP" infringement or Linux? Or, in the alternative, as they say, that their case on IP infringement is so weak, they want to peel the hopeless claims away from the ones that they think still might have a chance?
It is obvious they studied the Red Hat and AutoZone legal pleadings and are copying away. Those pirates. It's going to be so funny to see how they answer AutoZone's killer Motion, because they will have to argue the exact opposite of what they argue here. I even wonder if what they say here will be presented to the judge in the AutoZone case by hook or by crook. The cynical part is, they say that because the "prior filed" Novell case (here is where the Red Hat work no doubt helped them out) is handling the question of whether or not SCO holds a valid copyright, that case should decide the matter or at least go first. They don't want to waste judicial resources, don't you know. ( UPDATE: I just reread what they wrote. They are, unbelievably enough, arguing that the AutoZone case was prior filed, not the Novell case. It says "prior filed Nevada", not Novell. That is so unbelievable I think it may be a typo.) (UPDATE 2: Here is the Memorandum. It is AutoZone, at least with respect to Count 10. I am speechless. Except to point out that while the motion speaks about Counts 9, 10 and 14, this Memorandum "in support" is called "Memorandum in Support of Motion to Dismiss or to Stay Count Ten of Plaintiff IBM's Second Amended Counterclaims Against SCO [emphasis added]. And I also draw your attention to footnote 3, where they specifically claim they are not moving to dismiss or stay Count 9, upon which they base their argument for staying or dismissing Count 10. This really is the gang that can't shoot straight.) (UPDATE 3: There is an Amended Motion, which will not surprise you, and we should have it for you soon.) They don't want to face IBM on the copyright question at all, actually, any copyright question. Surprised? Really, who can blame them? IBM's attorneys have been making mincemeat out of them so far, and they must know they are on shakey ground with their alleged copyright ownership, plus delay is their middle name, so here they throw some more tacks in the road, hoping to deflect or slow down the IBM steamroller. Poor SCO. Steamrollers are not deflected or harmed by tacks. [Note that because of all the updates, the next two paragraphs are not relevant so feel free to skip them.] Perhaps they agree with BayStar, that they only have maybe a bit of a chance with IBM, but are hoping for better with Novell. Their problem is, whatever happens with Novell won't affect IBM's case at all (unless SCO is ruled not to have any copyright rights at all). But even if SCO were to prevail over Novell, the IBM matter still stands without IBM's position being the worse for wear. They don't much care who holds the copyright as far as defending themselves against a "copyright" infringement claim. And no doubt they'd like their own opportunity to disprove SCO's ownership. SCO hardly filed against Novell first in any normal computation, and not even if you use Red Hat's recent argument in the Motion for Reconsideration, because before SCO filed against Novell
on January 20, 2004, it told the Utah court in the IBM case on December 5, 2003, that their case against IBM was a copyright infringement matter and that they intended to add a claim of copyright infringement within a week or so. Remember that detail? They can hardly claim that their subsequent delay in doing so, in part because of having to request permission first from the court to amend their complaint again, means that Novell was "prior filed", I don't think. And in the off chance that they actually mean AutoZone, it was filed on March 2, 2004. Their Second Amended Complaint, with the copyright infringement claim, is dated February 27, 2004, which is why I think the "Nevada" reference must be a typo. (UPDATE: It was no typo, so what is their argument on prior filed? That IBM filed its Second Amended Counterclaims on March 29, and that is why AutoZone is prior filed. It's a convoluted argument that goes like this: Count 10 raises an "entirely new" claim that IBM does not infringe SCO's copyright "through its Linux activities" and that some of SCO's copyrights, if not all, are invalid and unenforceable. This is the same issue in the AutoZone case, they claim. AutoZone may wish to take notes, since they already filed a motion in Nevada asking the court to make SCO tell them exactly what they are talking about, and asking that court to stay everything while everybody else goes first, including IBM. SCO here admits that the only copyright claim SCO has asserted against IBM involves use of AIX and Dynix after SCO "terminated" IBM's UNIX licenses. They never, they say, asserted a claim against IBM "for copyright infringement arising out of its use, reproduction or improvement of Linux." So IBM is asking for a declaratory judgment that they are not guilty of doing something SCO never accused them of, SCO argues. In court, maybe, but what about in the media for a year and a half? Anyway, you don't have to wait to ask for a declaratory judgment until the other guy sues you, as Red Hat successfully pointed out in Delaware. SCO tries to argue that AutoZone, who have never I don't think, contributed code to Linux, is a case that matches exactly what IBM is talking about. Therefore it should be handled exclusively in Nevada. Or in Alice's Wonderland, where this all may make sense to someone.) The Novell case won't resolve the IBM issues, and neither will AutoZone's, and I believe this judge will know that, and if not, IBM's lawyers will likely point it out when they answer this document. And they will answer it. SCO seems at one point to be arguing that it would be cheaper to have two trials than one. Er... no, that isn't cheaper. Or, who knows? Maybe SCO's victims will decide to join up the cases? If economy is what we all desire, surely that would achieve it. My translation of their arguments about Count Fourteen is this: "Please, please, pretty please, can you make this declaratory judgment request go away so David Boies can present our case to what we imagine will be a stupid jury instead of to you? Our whole strategy depends on it, and a lot of people invested in us thinking this was going to be heard by what they hoped would be a dumb, xenophobic Utah jury confused by the tech and mesmerized by Boies' speaking skills. IBM is ruining everything." Meanwhile, everywhere they go, in every courtroom, in every state, SCO asks for delay, delay, delay. Just filing a motion, no matter how goofy, achieves some delay. What does that tell you, folks? That's what it tells me too. I have put the IBM counterclaims after the motion, with footnotes in the motion, so you can jump down and back, and can draw your own conclusions, based on the documents themselves. Actually, I only know how to code so you can jump down. If anyone can inform me how to jump back, I'd be delighted. Anyway, here is a link to the IBM Counterclaims as well. Our thanks go to JeR, for doing the text.
***********************************************
Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone]
Attorneys for PLaintiff/Counterclaim Defendant
____________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
____________________________________
THE SCO GROUP, INC.,
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant.
______________________________________
MOTION TO DISMISS, OR, IN THE ALTERNATIVE, TO SEPARATE OR STAY, COUNTS NINE, TEN AND FOURTEEN OF THE COUNTERCLAIM-PLAINTIFF IBM'S SECOND AMENDED COUNTERCLAIMS AGAINST SCO
Case No. 2:03CV0294DAK
Hon. Dale A. Kimball
Magistrate Judge Brooke Wells
_________________________________________
Plaintiff/Counterclaim-Defendant The SCO Group ("SCO"), by and through undersigned counsel, hereby moves the Court pursuant to Federal Rule of Civil Procedure 12(b) for dismissal, or, in the alternative, to stay or separate, pursuant to Federal Rule of Civil Procedure 42(b), counts Nine, Ten and Fourteen of Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Second Amended Counterclaims against SCO.
SCO bases its Motion to dismiss/stay or separate on the following grounds:
In counts Nine 9 and Ten10 of IBM's "Second Amended Counterclaims against SCO" IBM seeks a declaratory judgment that IBM has not infringed on any SCO copyrights because, allegedly, SCO's copyrights are invalid. The issue of the validity of SCO's copyrights is pending in litigation in Nevada. In count Fourteen,14 IBM seeks a declaratory judgment that all of IBM's contentions in its numerous other counterclaims against SCO are valid and should be declared so, and that all claims SCO has made against IBM in SCO's Complaint are invalid. These counterclaims should be dismissed in that they are redundant of issues already presented in this litigation and in the pending Nevada litigation.
Count Fourteen 14 is no more than a sweeping reiteration of the core issues in this case, repackaged as a declaratory judgment request. Courts have frequently declined to issue a declaration, where redundant of the relief sought in its other counts, because the relief sought will be afforded, if at all, in the other counts. As such, this Court should decline to exercise jurisdiction over Count Fourteen of IBM's Second Amended Counterclaims Against SCO on the basis that it is redundant of IBM's allegations in other counts, as well as SCO's allegations in other counts.
Counts Nine9 and Ten 10raise issues that are redundant of those presented in the prior filed Nevada action and therefore should be dismissed or stayed. Having the validity of SCO's copyrights determined in this action as well as in the federal court in Nevada would entail duplication of judicial efforts and run the risk of varying adjudications. Moreover, two federal courts should not simultaneously be determining whether the same copyrights are valid. Counts Nine and Ten should be dismissed or stayed pending the Nevada litigation.
Alternatively, Counts Nine and Ten should be separated pursuant to Federal Rule of Civil Procedure Rule 42(b). IBM's copyright counts are separable and can therefore be bifurcated. Because the copyright counts would needlessly complicate litigation that both parties concede is already highly complex, separating counts Nine and Ten would also be convenient for the parties. In addition, if counts Nine and Ten are not separated, SCO may be prejudiced by the potential confusion these counts present to the jury as well as the time, cost, and delay defending the copyright counts would entail. Finally, this court and the parties would benefit enormously, by way of expedition and economy, if Counts Nine and Ten were separated.
SCO's Motion is supported by the Memorandum in Support of Motion to Dismiss, or, in the Alternative, to Separate or Stay, Counts Nine, Ten and Fourteen of Counterclaim-Plaintiff IBM's Second Amended Counterclaims Against SCO submitted concurrently herewith.
DATED this 23rd day of April, 2004.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
David K. Markarian
(admitted pro hac vice)
By:_____ [signature]_____
Brent O. Hatch
Counsel for Plaintiff/Counterclaim defendant.
CERTIFICATE OF SERVICE
I hereby certify that I caused a true and correct copy of the foregoing to be mailed, postage prepaid, this 23 day of April, 2004, to the following:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Alan L. Sullivan, Esq.
Snell & Wilmer L.L.P.
[address]
****************************************************
IBM's COUNTERCLAIMS:
9 NINTH COUNTERCLAIM
163. SCO purports to hold copyrights relating to UNIX software, including the following copyrights: [lists]
164. SCO has sued IBM claiming that IBM has infringed, induced the infringement of, and contributed to the infringement of, SCO's purported UNIX copyrights by, among other things, continuing to "reproduce, prepare derivative works of, and distribute copyrighted UNIX materials through its activities relating to AIX and Dynix.
165. IBM does not believe that its activities relating to AIX and Dynix including any reproduction, improvement and distribution of AIX and Dynix, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.
166. An actual controversy exists between SCO and IBM as to the noninfringement of SCO's copyrights and the validity of any purported SCO copyrights concerning UNIX.
167. IBM is entitled to a declaratory judgment pursuant to 28 U. C. g 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through the reproduction, improvement, and distribution of AIX and Dynix, and that some or all ofSCO' s purported copyrights in UNIX are invalid and unenforceable.
10 TENTH COUNTERCLAIM
Declaratory Judgment of Noninfringement of Copyrights
168. IBM repeats and realleges the averments in paragraphs 1 through 167 with the same force and effect as though they were set forth fully herein.
169. As discussed above, SCO purports to hold copyrights relating to UNIX software.
170. SCO has sued IBM claiming that IBM has infringed, induced the infringement of, and contributed to the infringement of, SCO's purported UNIX copyrights by, among other things, continuing to "reproduce, prepare derivative works of, and distribute copyrighted UNIX materials through its activities relating to Linux.
171. IBM does not believe that its activities relating to Linux, including any use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.
172. An actual controversy exists between SCO and IBM as to the noninfringement ofSCO' s copyrights and the validity of any purported SCO copyrights concerning UNIX.
173. IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 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.
14 FOURTEENTH COUNTERCLAIM
Declaratory Judgment
192. IBM repeats and realleges the averments in paragraphs 1 through 191, with the same force and effect as though they were set forth fully herein.
193. SCO has breached its contractual obligations to IBM, violated the Lanham Act, engaged in unfair competition, interfered with IBM's prospective economic relations, engaged in unfair and deceptive trade practices, breached the GPL, infringed IBM copyrights and infringed IBM patents, as stated above.
194. Pursuant to 28 U.S.C. § 2201, IBM is entitled to declaratory relief with respect to SCO's and IBM's rights, including among other things a declaration that SCO has violated IBM's rights as outlined above by breaching its contractual obligations to IBM, violating the Lanham Act, engaging in unfair competition, interfering with IBM's prospective economic relations, engaging in unfair and deceptive trade practices, breaching the GPL, infringing IBM copyrights and infringing IBM patents, and is estopped as outlined above.
195. Moreover, IBM is entitled to a declaration that (1) SCO has no right to assert, and is estopped from asserting, proprietary rights over programs that SCO distributed under the GPL except as permitted by the GPL; (2) SCO is not entitled to impose restrictions on the copying, modifying or distributing of programs distributed by it under the GPL except as set out in the GPL; and (3) any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL.
196. There is a justiciable controversy between IBM and SCO with respect to all of the issues described above.
197. Absent declaratory relief, SCO's misconduct will continue to cause injury to IBM, the open-source community and the public at large.
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| Authored by: PJ on Tuesday, April 27 2004 @ 02:56 PM EDT |
| Please keep a log of all my mistakes here, so I can fix quickly. Thanks. [ Reply to This | # ]
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- Corrections here please - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:04 PM EDT
- Corrections here please - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:07 PM EDT
- Not only that - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:14 PM EDT
- Not only that - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:19 PM EDT
- Be nice to the jury - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:12 PM EDT
- Corrections here please - Authored by: gnuadam on Tuesday, April 27 2004 @ 03:16 PM EDT
- Corrections here please - Authored by: reuben on Tuesday, April 27 2004 @ 03:18 PM EDT
- If I were SCO.... - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:27 PM EDT
- Corrections here please - "request permission" link in admin mode - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:56 PM EDT
- s/zenophobic/xenophobic/g - Authored by: krow on Tuesday, April 27 2004 @ 04:09 PM EDT
- Comment on update - Authored by: Anonymous on Tuesday, April 27 2004 @ 04:11 PM EDT
- Corrections here please - Authored by: Anonymous on Tuesday, April 27 2004 @ 04:25 PM EDT
- Typo - Authored by: ValentijnSessink on Tuesday, April 27 2004 @ 05:09 PM EDT
- PJ - No code needed to jump back - Just use the "Back Arrow" - Authored by: SCosta on Tuesday, April 27 2004 @ 05:25 PM EDT
- Jumping Back - Authored by: pajamian on Tuesday, April 27 2004 @ 05:32 PM EDT
- Jumping Back - Authored by: Anonymous on Tuesday, April 27 2004 @ 06:14 PM EDT
- Two cases in NDILL court that are interesting. - Authored by: Anonymous on Tuesday, April 27 2004 @ 05:37 PM EDT
- Footnote navigation - Authored by: darkonc on Tuesday, April 27 2004 @ 06:24 PM EDT
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:07 PM EDT |
Let me just say that I disagree slightly with some of your comments PJ. And
only in a limited sense.
If the court in SCOG v Novell case were to determine that SCOG did not receive
any rights regarding enforcement of the AT&T contracts, or that Novell could
dictate what SCOG could do in terms of enforcing those agreements, then SCOG
would not be able to press any of its contract claims.
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:08 PM EDT |
Let me see if I have this straight. The copyright issues should NOT be addressed
in RedHat vs SCO because they were already being addressed in the IBM case. The
copyright issues should NOT be addressed in SCOG vs IBM because they were
addressed first in SCO vs AutoZone.
But RedHat vs SCOG, specifically addressing the copyright claims, was filed
before SCO vs Autozone!
PJ, what possible consideration could keep this kind of argument from invoking
judicial sanctions -- probably in at least two courtrooms? This goes way beyond
frivolous.
And how can SCO think they can get away with it -- especially with the RedHat
judge specifically watching the IBM one like a hawk? (Well, like a groundhog,
anyway.) Let the federal judges be blind, deaf, dumb, and stupid, if you will --
but surely they can get a clerk to read a calendar for them![ Reply to This | # ]
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- SCO Asks Not to Litigate its Copyright Claims Against IBM, Or in the Alternative, Not Yet, Or Se - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:33 PM EDT
- SCO Asks Not to Litigate its Copyright Claims Against IBM, Or in the Alternative, Not Yet, Or Se - Authored by: brendthess on Tuesday, April 27 2004 @ 03:52 PM EDT
- SCO Asks Not to Litigate its Copyright Claims Against IBM, Or in the Alternative, Not Yet, Or Se - Authored by: Anonymous on Tuesday, April 27 2004 @ 04:16 PM EDT
- The classic operating system deadlock problem - Authored by: Anonymous on Tuesday, April 27 2004 @ 06:08 PM EDT
- SCO Asks Not to Litigate its Copyright Claims Against IBM, Or in the Alternative, Not Yet, Or Se - Authored by: Jude on Tuesday, April 27 2004 @ 07:31 PM EDT
- SCO Asks Not to Litigate its Copyright Claims Against IBM, Or in the Alternative, Not Yet, Or Se - Authored by: Anonymous on Wednesday, April 28 2004 @ 12:50 PM EDT
- SCO Asks Not to Litigate its Copyright Claims Against IBM, Or in the Alternative, Not Yet, Or Se - Authored by: Anonymous on Tuesday, April 27 2004 @ 06:30 PM EDT
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| Authored by: SirFozzie on Tuesday, April 27 2004 @ 03:10 PM EDT |
This resembles an 8 year old blaming his brother for a bloody nose on the
playground, yet when the mother sits the two down, and it's proven that the kid
started it by attacking others, and the mother grounds the 8 year old, the 8
year old cries "Why are you grounding me? It's all his fault!"
Congratulations SCO, you have rediscovered cranial-rectal inversion, which as we
all know, comes from having their collective head so far up their own keister.
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| Authored by: mhoyes on Tuesday, April 27 2004 @ 03:11 PM EDT |
It's funny, reading this one, which I did in the PDF, I noticed they don't seem
to have anyone that can proof read their works. (aside, I notice that the
transcribers actually corrected the spelling) Additionally, it seems they
are trying to convince the judge, through repeated statements, of their verison
of reality. This one jumped out at me:
Because the copyright
counts would needlessly complicate litigation that both parties concede is
already highly complex,
Now correct me if I am wrong, but
wasn't IBM's statement that the case is not as complex as SCO is trying to make
it? How can SCO be saying that both parties concede this?
meh [ Reply to This | # ]
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| Authored by: the_flatlander on Tuesday, April 27 2004 @ 03:13 PM EDT |
I even wonder if what they say here will be presented to the
judge in the AutoZone case by hook or by crook.
Ummm. Can
*WE* send a copy to Nevada, in a plain brown envelope? I mean, just as a
service to the court. Just our duty as good citizens, eh?
The
Flatlander
I'll spring for the postage.
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:13 PM EDT |
If I remember correctly, doesn't SCOG want the Novell case moved becuase it is
NOT a Copyrights issue according to them. Seeing that both cases are being
heard by the same Judge, what exactly were they thinking. I think they feel
they lost the Novell case.
What do you think?[ Reply to This | # ]
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- Novell Case - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:31 PM EDT
- Novell Case - Authored by: Anonymous on Tuesday, April 27 2004 @ 08:25 PM EDT
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:13 PM EDT |
Forgive an foreigner, but they are relying on Autozone to decide this, when
Autozone asked for a stay because this case would decide it?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:22 PM EDT |
Maybe Novell and IBM will decide to join up the two cases? If
economy is what we all desire, surely that would achieve it.
And
then maybe IBM could agree to separating the copyright issues with the
recommendation that the copyright case be heard first. That would be the most
expeditious move since so many of SCO's claims hinge on its purported
copyrights.
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:23 PM EDT |
I don't see any case law cited to support Hatches arguments. As such, isn't this
just legal whining?
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| Authored by: rsteinmetz70112 on Tuesday, April 27 2004 @ 03:25 PM EDT |
Seems like everyone wants to know what code is infringing and SCO just won't
show anyone. Every time someone asks them to, they just come up with some really
odd arguement.
If you leave out the copyright parts of the SCO case it's then only about
whether IBM had a right to use code IBM developed for AIX in Linux.
I could be wrong now, but I don't think so.[ Reply to This | # ]
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| Authored by: mhoyes on Tuesday, April 27 2004 @ 03:26 PM EDT |
I am looking at the memorandum in support of motion to dismiss or to stay count
ten of plaintiff IBM's second amended counterclaims against SCO.
The first thing that jumps out is the argument against the 10th counterclaim.
In it, they quote IBM as "that IBM does not infringe..." and then turn
it into "In other words, IBM is seeking to decalre that a person or entity
using Linux does not infringe..." Now, to me, it sounds like IBM is saying
that they want it for themselves, just as Red Hat does in their suit. Then, SCO
turns around and says this is going to be settled in the Autozone case which was
filed prior, but it is really from the Red Hat case, which was prior to
Autozone, but that was stayed since the IBM case was prior. Uh oh...seem to be
stuck in a loop. Quick, some one hit control-Z. Or is that what SCOG is trying
to do. Get this so mired in the legal mud that noone can figure it out?
meh
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| Authored by: rsteinmetz70112 on Tuesday, April 27 2004 @ 03:32 PM EDT |
Is there any information about what SCO handed over in discovery?
I know the contents won't be disclosed, but has IBM done anything with regard to
SCO's discovery?
I would have though we would have heard something by now, like another motion to
compel or something.
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| Authored by: Dan Lewis on Tuesday, April 27 2004 @ 03:36 PM EDT |
I think TSCOG really dropped the ball with this brief. The important points
in the text are not referred to. As I see them, they are the
following:
Counterclaims 9 and 10 both remark that SCO has alleged
copyrights to Unix, and SCO's response is "In counts Nine 9 and Ten10 of IBM's
'Second Amended Counterclaims against SCO' IBM seeks a declaratory judgment that
IBM has not infringed on any SCO copyrights because, allegedly, SCO's copyrights
are invalid." This was a huge mistake. Counterclaims 9 and 10, about AIX/Dynix
and Linux respectively, assert two things each: yes, that the copyrights are not
clearly SCO's, but also that even if SCO does own the copyrights, SCO
still needs to show how IBM infringed on the copyrights through their use and
promotion of AIX/Dynix and Linux. The Nazgul will be sure to point it out in
their reply.
Contrary to SCO's assertion, Counterclaim 14 is not just a
"sweeping reiteration of the core issues in this case, repackaged". In
particular, it contains a knockout paragraph about the GPL:
195.
Moreover, IBM is entitled to a declaration that (1) SCO has no right to assert,
and is estopped from asserting, proprietary rights over programs that SCO
distributed under the GPL except as permitted by the GPL; (2) SCO is not
entitled to impose restrictions on the copying, modifying or distributing of
programs distributed by it under the GPL except as set out in the GPL; and (3)
any product into which SCO has incorporated code licensed pursuant to the GPL is
subject to the GPL and SCO may not assert rights with respect to that code
except as provided by the GPL.
The way I see it, the judge can
simplify a lot of issues by finding in favor of this declaratory judgment. That
SCO doesn't mention it in their Motion to Dismiss, Stay, Bifurcate, and Confuse
will not look good. [ Reply to This | # ]
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- Stay, Dismiss, Bifurcate, and Confuse, LLP - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:56 PM EDT
- New legal team - Authored by: jgb on Tuesday, April 27 2004 @ 04:49 PM EDT
- Stay, Dismiss, Bifurcate, and Confuse, LLP - Authored by: red floyd on Tuesday, April 27 2004 @ 04:52 PM EDT
- It's on the dice. - Authored by: rsmith on Tuesday, April 27 2004 @ 06:27 PM EDT
- Stay, Dismiss, Bifurcate, and Confuse, LLP - Authored by: charlie Turner on Tuesday, April 27 2004 @ 06:56 PM EDT
- Stay, Dismiss, Bifurcate, and Confuse, LLP - Authored by: hedronist on Tuesday, April 27 2004 @ 07:27 PM EDT
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:41 PM EDT |
SCOX does not think much of this judge. This goes beyond giving him the
run-around and is practically tweeking him on the nose. I suppose they would
like IBMs counter claims to also be decided in one of the other cases -- such a
request would make just as much sense as this one. Its hard to believe, but they
might think they are being clever. The truth is that the shell game they are
trying to play is blatantly obvious to anyone not paid to overlook it. What I
just can't understand is how the lawyers can have any dignity while laying out
the twisted web of contradictions, circular logic, and just plain false logic
for all of their peers to see. [ Reply to This | # ]
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- Eh? - Authored by: Anonymous on Tuesday, April 27 2004 @ 03:48 PM EDT
- Eh? - Authored by: Anonymous on Tuesday, April 27 2004 @ 04:02 PM EDT
- Why? Because it works, some of the time... - Authored by: Anonymous on Tuesday, April 27 2004 @ 04:20 PM EDT
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| Authored by: bbaston on Tuesday, April 27 2004 @ 03:42 PM EDT |
Well, sure enough, SCO makes zero supporting (or otherwise) legal references in
this motion.
I guess, since they hope to re-write existing law (and logic) anyway, looking
back at why this motion might be a rational request is not necessary?
---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO, {;)}
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:44 PM EDT |
What happens when SCO finally goes too far?
Any warning signs to look for ?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:45 PM EDT |
... is unnecessary. To return to where you linked from, simply click on your
browser's Back button. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:49 PM EDT |
They (SCO) know they are losing this thing and they are trying to minimize the
win by making as much of the original suit non issues. At least as far as the
official records will show.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:55 PM EDT |
Beginning of the end I think.
SCO is lost and beaten.
[ Reply to This | # ]
|
- exactly... - Authored by: Anonymous on Tuesday, April 27 2004 @ 05:58 PM EDT
| |
| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:55 PM EDT |
. . . to deny all of SCO's motions and grant all of IBM's. Now THAT would be
judicial economy.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:55 PM EDT |
Strangely, the motion is asking to dismiss/stay/separate counts 9, 10 and 14,
but the memorandum is only asking to dismiss or stay count 10, and even
explicitly says that SCO has NOT moved to dismiss or stay count 9. What gives?[ Reply to This | # ]
|
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 03:59 PM EDT |
I don't understand how it is in SCO's best interest to delay all these court
cases. Litigation is expensive, and lawyers charge by the hour. One figure I
saw recently said that SCO spent $3.4M on legal expenses in the most recent
quarter. The figure will probably increase as the cases approach the trail
dates, but let's be conservative and assume a linear function. That amounts to
more than $13M a year, and the IBM trial is more than a year away. According to
Baystar, SCO's UNIX business made less than that amount (total revenus, not net)
last year. Sure, that $50M loan helped, but now SCO is fighting with its
creditors and might be involved in still more court cases soon.
It would seem that the only way SCO can come out on top of this mess is to win
judgements as quickly as possible. Of course, none of us thinks they will, but
delaying tactics don't help to pay the bills.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, April 27 2004 @ 04:02 PM EDT |
| Maybe tomorrow it will fall below the previous low of 6.80? [ Reply to This | # ]
|
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 04:02 PM EDT |
All the legal cases are designed to slow the adoption of FOSS, especially until
Longhorn is available.
It is a good strategy for Microsoft, and the strategy is having some success.
The longer term question is: Will the consumers of the developed world buy into
Longhorn 'trustworthy computing' and DRM (digital rights management)? Will they
spend $300 dollars to upgrade from Windows 95/98/Me/2000/XP to Longhorn 'eye
candy' and in the bargain relinquish the control of their computers and their
data (content) on their computers to corporations?
I think that if the consumer (the people) were aware of what exactly these
corporations had in mind then they would be demonstrating in the streets. The
success of the corporations relies on the fact that the people are not informed
about their (the corporates') true intentions. This corporate behaviour is a
direct attack on democracy.
I think that FOSS, and the idea of FOSS, will change consumer behaviour and that
people will begin to make informed choices about what they use (hardware wise
and software wise) in their quest to become full members of the global internet
community.
[ Reply to This | # ]
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| Authored by: jfabermit on Tuesday, April 27 2004 @ 04:22 PM EDT |
| SCO filed a motion to dismiss, separate, stay, or cause to vanish with smoke and
mirrors IBM's ninth, tenth, and fourteenth counterclaims. Their following
memorandum on law and other inconveniences covers only the tenth
counterclaim.
Aren't they required to file memoranda detailing their
objections to all three counterclaims? If not can't IBM basically make
any argument they wish, and say merely that SCO presented no evidence to the
contrary? Should we expect further memoranda from SCO tomorrow with more
interesting and obscure reasons why their lawsuits cannot continue? [ Reply to This | # ]
|
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| Authored by: Dave Lozier on Tuesday, April 27 2004 @ 04:25 PM EDT |
I think we are being a little hard on those that may possibly be picked for jury
duty in Utah. Perhaps on average most are not technically inclined nor care to
be. For the most part I'd bet most are just uninformed. To bad we couldn't bulk
mail post cards to everyone in Utah telling them to get the SCO facts from
Groklaw. :D
---
~Dave[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Tuesday, April 27 2004 @ 04:26 PM EDT |
Seems to me RedHat should fax this one over to the judge in their case, in
further support of their motion to lift the stay.
The IBM case seems to be going backwards.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 04:26 PM EDT |
I think the PJ's comments are actually references to some statements made by
SCOG and Batstar (sorry) Baystar and various media members who opined that
Boies, et al, would win the case when it got to the jury, possibly by charm and
charisma overcoming law and fact.
I would agree that maybe they should be annotated to make it clear to newcomers
that they are tongue in cheek.
[ Reply to This | # ]
|
- Juries - Authored by: Anonymous on Tuesday, April 27 2004 @ 05:58 PM EDT
| |
| Authored by: moogy on Tuesday, April 27 2004 @ 04:41 PM EDT |
Kevin McBride quotes from: The Transcript of Oral Arguments
Friday, Dec. 5, 2003 SCO v. IBM
---
"IBM owns the derivative work. We don't contend anything to
the contrary. But what we do contend is that we have a license
agreement that says even though you own your derivative work,
you don't own Unix, ..."
---
"We know -- and the reason this case got launched in the first
place, we know IBM gave a lot of source code, development
methods and sequences of source code usage into Linux."
---
"I'm saying our case is more -- it's an infringement case that
may be one of three different. And by the way, Your Honor, I
will proffer to the Court that we are filing a second amended
complaint that has copyright infringement claims, and will be
filed within the coming few days or no less than a week. And
we'll put then fully in front of the Court the three buckets
we have outlined here, contract, trade secrets and copyright."
Well, they dropped Trade Secrets from the suit eventually
although on Dec 5th Kevin was arguing like crazy about the
Trade Secrets portion of their claims and how strong their
case was.
Copyright IS involved, it's one of the three 'buckets'
they'll drop on the court. In fact, copied unix source code
is "..the reason this case got launched in the first place,
we know IBM gave a lot of source code. ..."
Now, the copyright issues should be seperated despite the
fact that they argued that it's the the reason the case was
originally launched against IBM.
I can see it now...
THE COURT: Can you please tell me what your suit is about?
SCOG: All in good time, your honor. Mr.Boies will explain
all that clearly to a jury once it is seated.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 04:54 PM EDT |
PJ, jumping back is the same as jumping forward. Here is
an example:
<a name="top_of_page">
Blah
Blah blah
Blah blah blah
<a href="#top_of_page">Back to Top</a>
[ Reply to This | # ]
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| Authored by: Thomas Frayne on Tuesday, April 27 2004 @ 04:57 PM EDT |
SCOG's 2nd amended counterclaims:
In furtherance of its plan to
destroy its UNIX competitors, IBM has announced its intention to make Linux,
distributed to end users without a fee, the successor to all existing UNIX
operating systems used by Fortune 1000 companies and other large companies in
the enterprise computing market. ...
As a result, a very significant amount of
UNIX protected code and materials are currently found in Linux 2.4.x, Linux
2.5.x and Linux 2.6.x releases in violation of SCO’s contractual rights and
copyrights. ... The first versions of Linux evolved through bits and pieces of
various contributions by numerous software developers using single or dual
processor computers. Unlike IBM, virtually none of these software developers and
hobbyists had access to enterprise-scale equipment and testing facilities for
Linux development. Without access to such equipment, facilities and knowledge of
sophisticated development methods learned in many years of UNIX development it
would be difficult, if not impossible, for the Linux development community to
create a grade of Linux adequate for enterprise use....
Despite termination
of such Agreements, IBM has continued to reproduce, prepare derivative works of,
and distribute UNIX software, source code, object code, programming tools, and
documentation related to UNIX operating system technology, and has induced
others to do the same....
IBM's breaches of the IBM Related Agreements and
the Sequent Agreements and its post-termination actions have infringed, have
induced infringement of, and have contributed to the infringement of, copyright
registrations of SCO and its predecessors. Such actions have been willful and
have been done with knowledge of the copyright rights of SCO.
IBM's tenth counterclaim:
170. SCO has sued IBM
claiming that IBM has infringed, induced the infringement of, and contributed to
the infringement of, SCO's purported UNIX copyrights by, among other things,
continuing to "reproduce, prepare derivative works of, and distribute
copyrighted UNIX materials through its activities relating to Linux.
171.
IBM does not believe that its activities relating to Linux, including any use,
reproduction and improvement of Linux, infringe, induce the infringement of, or
contribute to the infringement of valid, enforceable copyrights owned by
SCO.
SCOG's version:
The only copyright claim SCO
has asserted is primarily for IBM's continuing use of AIX and Dynix after SCO
terminated IBM's UNIX licenses. ... Although SCO has not sued IBM for
copyright infringement arising out of "IBM's use, reproduction and improvement
of Linux" (P171), IBM's Tenth Counterclaim nonetheless seeks a "Declaratory
Judgment of Noninfringement of Copyright" arising out of IBM's Linux
activities.
[ Reply to This | # ]
|
- Nice Catch! N/T - Authored by: the_flatlander on Tuesday, April 27 2004 @ 05:05 PM EDT
- Nice Catch! [well, actually, no] - Authored by: Anonymous on Tuesday, April 27 2004 @ 05:55 PM EDT
- Nice Catch! [I don't understand] - Authored by: Anonymous on Tuesday, April 27 2004 @ 06:02 PM EDT
- Nice Catch! [well, actually, no] - Authored by: sphealey on Tuesday, April 27 2004 @ 06:15 PM EDT
- Nice Catch! [well, actually, yes] - Authored by: Anonymous on Tuesday, April 27 2004 @ 06:41 PM EDT
- Nice Catch! [well, actually, no] - Authored by: codswallop on Tuesday, April 27 2004 @ 07:37 PM EDT
- Nothing to do with copyright violations in Linux? - Authored by: Thomas Frayne on Tuesday, April 27 2004 @ 11:37 PM EDT
- IBM says, SCOG says IBM says - Authored by: Anonymous on Wednesday, April 28 2004 @ 04:40 PM EDT
| |
| Authored by: Anonymous on Tuesday, April 27 2004 @ 05:00 PM EDT |
In the second amended complaint from SCO, in claim 190,
SCO basically holds IBM responsible for the violations
that AutoZone allegedly has done. SCO made this claim
before it sued AutoZone. [ Reply to This | # ]
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| Authored by: Greebo on Tuesday, April 27 2004 @ 05:00 PM EDT |
| My brain hurts!!
Ok. Lets see if i can get this straight.
1st - SCO v
IBM - Trade secrets (dropped), contract and copyright claims left.
2nd - SCO
v Novell - Copyrights
3rd - Redhat v SCO - Linux is infringing, Yes or
No?
4th - SCO v Autozone - Misuse of IP
5th - SCO v DaimlerChrysler -
Misuse of IP
Have i forgotten anyone?
Now SCO are saying that the
copyright counterclaims by IBM should be dropped because they are being decided
in the Autozone case, and Autozone are saying there case should be delayed
because the copyright claims are being answered in the IBM and Novell
cases?
I'm sure i've got this wrong somewhere? IANAL.
Please, please
correct me if i've got this wrong!
Maybe a really simple idiots guide would
be good so the legal challenged like me can keep track of all
this.
Greebo ---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner [ Reply to This | # ]
|
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| Authored by: GLJason on Tuesday, April 27 2004 @ 05:22 PM EDT |
Sco's copyright claim states the following (in part):
175. Despite
termination of such Agreements, IBM has continued to reproduce, prepare
derivative works of, and distribute UNIX software, source code, object code,
programming tools, and documentation related to UNIX operating system
technology, and has induced others to do the same.
Does not IBM
have the right to challenge the validity of their copyright? I think they
should ask SCO why they decided to file a suit against a separate company that
uses and distributes Linux instead of dealing with the claims here in the IBM
suit since IBM is one of the leading consumers and distributors of Linux.
Maybe IBM should bring up the fact that Autozone has already asked that
their case be stayed until the resolution of the IBM And RedHat cases, and the
RedHat case has been stayed until the resolution of the IBM case.
Maybe it's
just me, but since SCO's copyrights and what code that SCOX supposedly owns in
Linux or has rights to is at the heart of this case (whether it's IBM code
contributed to Linux or not), shouldn't this issue be determined here? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 05:41 PM EDT |
SCO's argument is that the tenth counterclaim is redundant because the AutoZone
case, which was filed first, will answer the question of whether Linux infringes
SCO's copyrights. As I'm sure IBM's lawyers will point out, however, the
question of whether Linux infringes SCO's copyrights was part of IBM's case long
before the AutoZone case was filed.
Even though IBM didn't request a declaratory judgment of noninfringement until
recently, it has long since countersued SCO for misrepresenting its rights to
Linux -- including claiming that Linux infringes SCO's copyrights! That
counterclaim is why SCO was ordered to produce evidence of copyright
infringement in discovery (over their objections), even before IBM's second
amended counterclaim. Litigating that counterclaim requires establishing,
among other things, whether or not Linux in fact infringes SCO's copyrights, and
it precedes the AutoZone case by many months.
Of course, the Red Hat case precedes even IBM's original counterclaims, but
that's a separate issue.[ Reply to This | # ]
|
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| Authored by: geoff lane on Tuesday, April 27 2004 @ 05:41 PM EDT |
| Ryan E. Tibbitts is a Vice President and General Counsel of TSG. Some insight
may be gained as to the future of the legal actions of TSG from his article Top Ten Lessons from Caldera, Inc. v. Microsoft Corp.
As part of
the team that won substantial money from Microsoft I would be surprised if he
wasn't one of the architects of the current action.
[ Reply to This | # ]
|
| |
| Authored by: grouch on Tuesday, April 27 2004 @ 05:56 PM EDT |
I remember, years ago, running into BASIC programs that were as convoluted as
SCOG's legal squirmings. Somebody should file suit against SCOG for infringing.
In the meantime, can anyone debug the mess SCOG has laid out?
10 LET $MS=666
15 LET $NOISE=1000000
20 LET $IBM=50000000000
25 LET $BSRBC=50000000
30 LET $AZ=500
35 LET $DC=1500
40 LET $EV=10000
45 LET $SUNMS=35000000
50 LET $PUMP=100000
55 LET $FAIL=66666666666
100 GOTO $MS
500 GOSUB $NOISE
501 GOSUB $PUMP
502 GOTO $IBM
666 GET PLAN
667 GOSUB $NOISE
668 GOTO $SUNMS
669 GOSUB $NOISE
670 GOTO $IBM
1500 GOTO $AZ
10000 GET MONEY
10001 GOSUB $NOISE
10100 GOSUB $PUMP
10500 GOTO $IBM
100000 GOSUB $NOISE
100001 PRINT FUNNYMONEY
100002 RETURN
1000000 PRINT DIDIOT
1000001 PRINT PRETENDERLE
1000002 PRINT FORBES
1000005 GOSUB $PUMP
1000010 RETURN
35000000 GET MONEY
35000001 GOSUB $NOISE
35000002 GOSUB $PUMP
35000003 GOTO $BSRBC
50000000 GOSUB $NOISE
50000100 GOSUB $PUMP
50000101 GOTO $IBM
50000000000 GOSUB $NOISE
50000000001 GOSUB $PUMP
50000000002 GOTO $DC
66666666666 RUN
---
Can you trust your computer?
http://www.gnu.org/philosophy/can-you-trust.html
[ Reply to This | # ]
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| Authored by: Bill The Cat on Tuesday, April 27 2004 @ 06:25 PM EDT |
Darling McBribe must have absolutely conscience, morals or self respect. I
certainly wouldn't want to be the laughing stock of both the legal and technical
communities. Maybe their investors don't like being laughed at either.
Just a thought.
---
Bill Catz[ Reply to This | # ]
|
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 06:27 PM EDT |
If SCO could manage to get all copyright (and patent) claims dismissed or
bifurcated, and all that were left were contract claims and/or trade secret
claims (which are matters of state law and not federal law)... could they then
move to take the case out of Judge Kimball's courtroom and into a Utah state
court?
Could that be what the motion to bifurcate is all about?
[ Reply to This | # ]
|
| |
| Authored by: rss on Tuesday, April 27 2004 @ 06:33 PM EDT |
...or CSO for short ;)
IBM requested that the case must be thrown out because IBM didn't steal SCO's
Unix property. The crux of the argument being that AIX/Dynix is IBM's property,
irrespective of whether Unix is SCO's property or not.
SCO reply - we have another case that can prove that Unix is our property in the
first place and that must prove somehow that IBM must have stolen it. [ Reply to This | # ]
|
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 06:54 PM EDT |
Here's my thinking on the correct order of the lawsuits.
SCO should fight Novell first to decide ownership of the Unix copyright
registrations. SCO's copyright claims against IBM, IBM's declaratory judgment
request, Red Hat's declaratory judgment request and AutoZone all depend on that
and should all be stayed.
SCO should fight Red Hat next since they were the first to file a Linux
copyright case. IBM's similar declaratory judgment request and the AutoZone
suit should be stayed until Red Hat's suit is decided.
I would expect SCO to fight against this order because they will get little or
no money from Novell, even if they win ownership of the copyrights, and can only
lose money against Red Hat.
They will first want to fight the suits that they have the best chance at
winning money, the IBM contract dispute and the AutoZone suit, even though it's
illogical.[ Reply to This | # ]
|
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 07:04 PM EDT |
First, check out tuxrocks for SCO's answer to IBM. Looks like SCO dropped
the GPL is unconstitutional affirmative defense.
OT: Yahoo! just deleted all
posts back to April 13! I hope it is a temporary glitch. [ Reply to This | # ]
|
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| Authored by: codswallop on Tuesday, April 27 2004 @ 07:07 PM EDT |
I sometimes don't think the SCO lawyers know anything about copyright law.
This is from to IBM's counterclaims [paragraphs]155 and 157
As
stated, IBM has made contributions of source code to Linux under the GPL. IBM
is, and at all relevant times has been, the owner of valid copyrights in these
contributions, as well as of all the rights, title and interest in those
copyrights.
IBM has placed or has caused to be placed a copyright notice on
these contributions of source code to Linux under the GPL, and has otherwise
complied with the copyright laws of the United States in this respect. IBM does
not permit the unauthorized copying of it's Linux
contributions
SCO's answer:
Admits that IBM has made
contributions of source code to Linux under the GPL, but denies the
applicability or enforceability of the GPL, alleges that part of said
contribution by IBM violate SCO's contract and intellectual property rights, and
denies the remaining allegations of [paragraph]155 not specifically admitted
herein.
Admits that IBM placed copyright notices on certain AIX and Dynix
contributions to UNIX [sic], but denies it has the legal authority to do so,
denies the applicability or enforceability of the GPL, and denies the remaining
allegations of [paragraph]157 not specifically admitted
herein.
SCO is denying that IBM has valid copyrights, and that it
has the right to place copyright notices on the code. And also claiming, of
course that the GPL is either inapplicable or unenforceable. This is not any
kind of defense, as far as I can see.
The current case law is that even if a
work is a derivative work or a compilation, the author holds the copyright on
creation and can register it without infringing on the parent work. The only
exception is work for hire which requires a clear work for hire agreement or
certain substitutes based on the nature of the employment.
As Eben Moglen
and others have written, if the GPL is invalid, then what license do you have?
Even if you believe SCO's view of SOFT-00015, it only say that IBM's code has to
be "treated as part of the original software product." This has nothing to do
with ownership of the copyrights. It isn't a work for hire agreement, or a
conveyance, or even a promise to assign.
SCO would have to argue that it is
a nonexclusive license to most possible nonexclusive rights, since nonexclusive
rights don't have the same conveyance rules. I haven't seen them do this.
I
wrote some more about their defenses 6 and 7, but this is too long as it is. [ Reply to This | # ]
|
| |
| Authored by: BigTex on Tuesday, April 27 2004 @ 07:18 PM EDT |
Although SCO's case against AutoZone has implications for many Linux users,
these could be restricted, because AutoZone used SCO's OpenServer version of
Unix until three years ago. "In 2001, SCO told AutoZone that it would no
longer be offering support for its OpenServer product. AutoZone was therefore
forced to switch to a new operating system," the company said in its
motion. AutoZone chose Red Hat's version of Linux as a replacement and completed
the transition in 2002, it said.
I was really shocked to see that SCO was suing a past customer because they used
another vendor when SCO made OpenServer obsolete. WEIRD![ Reply to This | # ]
|
| |
| Authored by: gribnick on Tuesday, April 27 2004 @ 07:19 PM EDT |
So now that SCO has made the AUTOZONE complaint part of the official IBM record
(as an attachment to their supporting memorandum), I'd assume that their
recently submitted discovery schtuff had better include thorough descriptions of
the below (from Autozone complaint) complete with 5x8 color glossies with lines
and arrows on the back of each one depicting how they are to be used as evidence
against us.. :-) ::
19. The Copyrighted Materials include protected expression of code, structure,
sequence and/or organization in many categories of UNIX System V functionality,
including but not limited to the following: System V static shared libraries;
System V dynamic shared libraries; System V inter-process communication
mechanisms including semaphores, message queues, and shared memory; enhanced
reliable signal processing; System V file system switch interface; virtual file
system capabilities; process scheduling classes, including real time support;
asynchronous input/output; file system quotas; support for Lightweight Processes
(kernel threads); user level threads; and loadable kernel modules."
(sounds of Nazgul descending).. hehehehehe[ Reply to This | # ]
|
| |
| Authored by: gribnick on Tuesday, April 27 2004 @ 07:40 PM EDT |
Don't you recognize a SChOpe and a prayer when you see one? :-) I was just going
to say "Seriously though.." but I can't. It is tough to take this
level of sanity-indifference seriously. Personally, I can't. I'm glad the Nazgul
can. They should be about ready to fire up the ole weed-wackers any day now..[ Reply to This | # ]
|
| |
| Authored by: Khym Chanur on Tuesday, April 27 2004 @ 08:02 PM EDT |
In IBM's counter-claims, they are asking for the Linux code that SCO alleges is
infringing, and also asks for a judgement that the Linux kernel isn't
infringing, right? But since IBM doesn't have their own Linux distro, what
standing do they have to ask for these things?
Geez, I've been following Groklaw since it was on Radio, and I'm *still*
confused.
---
Give a man a match, and he'll be warm for a minute, but set him on fire, and
he'll be warm for the rest of his life.[ Reply to This | # ]
|
| |
| Authored by: fireman_sam on Tuesday, April 27 2004 @ 08:12 PM EDT |
SCO's actions remind me of a fly that has been hit with some serious flyspray
and in spinning like crazy across the floor in a last ditch effort to continue
to live. We are now at the point where someone will walk over to them and step
on them.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, April 27 2004 @ 08:17 PM EDT |
Hi all!
A linux user has made criminal charges against SCO in
Spain. The news are in suse mailing list spanish (the mail
is here )
The text with the charges
is here http://
www.hussaile.com/Den-Aud-Nac-SCO.html.
The charges are for threats,
extortion and scam (hope i
have translated them right, i'm not native
english)
The case was provisionally dismissed, but the guy appealed.
The
text for the appeal is here http://www.hussaile.com/
Reforma-Aud.Nac.-Den.SCO.html
Good to see some movement
here in spain too, but
unfortunatelly this guy seems to be too hot headed.
He is not native speaker and seems to not have consulted a
lawyer, leading
to a poorly written motion. What is worse,
he mistakes the whole concept of
patents, copyrigths,
trademarks and OS (he mentions UNIX instead of UNIX
System
V), and even the GPL (free vs gratis).
He obviously doesn't
read groklaw ;-)
The appeal seems to be a bit better, but i'm afraid it
will be dismissed too.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, April 27 2004 @ 08:24 PM EDT |
They ask for 9, 10, and 14 to be stayed - with hand waving justifications, then
submit a correction only asking for 10 to be stayed. I can only assume they did
this because word docs cannot be submitted or they thought the judge might not
know how to see the revision history in one.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, April 27 2004 @ 08:40 PM EDT |
Come on, this is so blatantly a pump and dump scheme its not funny...
remember the old adage, delay delay delay, and the comments from Baystar make
perfect sense in this light... They HAVE to say this stuff in order to keep
investors (uhhh sheep) happy!
and remember the other old adage - if you cant dazzle them with dexterity,
baffle them with BS!
these are well known tried and true schemes for running a total stock market
scam.
And you know what? theres not going to BE a SCO around for the courts or anyone
else to pick up the pieces! Like all good pump and dumps, one quiet friday
evening the offices get cleaned out and come monday morning the building
managers will be left with a cheque from last month thats made of some serious
rubber... It happens all the time.
I still don't see why people are so surprised or why they think SCO will get any
sort action against them in the end. It'll never happen, SCO will be long gone
come that fateful day.
Even if someone big (Novell, IBM, RedHat, etc) were to WIN their cases, and
finally get judgement against SCO for $x millions, by the time things actually
rolled around, ooops! SCO is gone... yep.
I've been part of a company that did that, working as a lowly employee watching
the higher ups literally scavenge a company like a vulture picking on remains
and knowing theres absolutely nothing you can do about it. Yeah, I called the
SEC, etc you name it, I even told the lawyers, they didn't care, as long as they
were getting paid.
By the time they need another job, the wind has blown over the facts and no one
remembers. Well, ok you remember a few choice names, but even then there are
gluttons who will buy whatever they are selling even after all this.
I remember working for a computer dealer who was KNOWINGLY selling faulty
equipment, customers would come in, buy the stuff, walk out, and be on the phone
within an hour asking what was going on, and the guy would simply tell them its
ok a new upgrade would be out in a few days or weeks to fix it. A few weeks (or
month) later a new model would be out, and wouldn't you know those same
customers would be back buying upgrades? Oh yeah, did I mention the upgraded
models were just as non-functional as the originals? uhhm, yep. And they kept
coming back for more! This guy was doing $8k a DAY in sales of these things...
(remarkable when you realize the parts in question sold for $40-$60 each).
so get used to it folks, SCO will try anything. Theres really not much anyone
can do either. Now, someone like IBM and Novell could possibly (maybe) turn this
into a class-action against SCO, bandy up all the parties into one suit, in one
court with one judge (or something) or..... IBM could just file a motion to
dismiss SCOs case against them and ask for a declatory judgement in their case
against SCO.
well we can dream can't we? :)[ Reply to This | # ]
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