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SCO's Answer to IBM's Second Amended Counterclaims
Wednesday, April 28 2004 @ 12:02 AM EDT

Here is SCO's Answer to IBM's Second Amended Counterclaims as PDF. Text version to follow.


  


SCO's Answer to IBM's Second Amended Counterclaims | 210 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
URLs, etc.
Authored by: Anonymous on Wednesday, April 28 2004 @ 12:09 AM EDT
Go Here

[ Reply to This | # ]

Typos and corrections here please.
Authored by: Anonymous on Wednesday, April 28 2004 @ 12:56 AM EDT
Please place all typos and corrections here please. :)

[ Reply to This | # ]

IBM admits that SCO suspended Linux distibution?
Authored by: bonzai on Wednesday, April 28 2004 @ 01:02 AM EDT
IBM wrote:
33. Admits that it previously distributed or re-distributed SCO Linux server, SCO OpenLinux Server, SCO OpenLinux Workstation and SCO Volution Manager, and admits that SCO has suspended its Linux distribution, but denies the remaining allegations contained in paragraph 33.
Why would they admit SCO has suspended its Linux distribution? AFAIK they still allow downloads.

[ Reply to This | # ]

SCO's Answer to IBM's Second Amended Counterclaims
Authored by: Anonymous on Wednesday, April 28 2004 @ 01:42 AM EDT
17. '...designed to be technologically indistinguishable from UNIX...' I assume
this means that it will run on x86 hardware. Do they now claim some special
right to x86?

Later in 17. we see the real reason for all of the lawsuits, they cannot tell
the difference between UNIX and Linux ('...is distinguishable only in that Linux
is a "free" version of UNIX ...'). I guess they must have done an
md5sum and they came out equal then, eh?

[ Reply to This | # ]

There they do contradicting themselves again
Authored by: Anonymous on Wednesday, April 28 2004 @ 02:08 AM EDT
Here we have SCO contradicting themselves, not only in different cases/court,
but in the same court, and on the same day. Truly excellent.

In their motion to dismiss or stay, they argue their claims against IBM are not
about copyrights, except for those relating to IBM's continued distribution of
AIX.

At the same time, in this answer, they pepper it with allegations that IBM's
Linux contributions violate SCO's "intellectual property rights".

Intellectual property rights, what are they?

1. Patents? No SCO doesn't have any applicable or in use in this case.

2. Trade Secrets? They've already dropped that claim against IBM.

3. So, the allegedly violating contributions must be allegedly violating
copyrights. There's nothing else left.


If SCO thinks that no copyright issue determination is necessary to determine
this case, why don't they agree tojust move to summary disposition about the
contract interpretations and other facts about whether IBM's use of IBM's own
code violates some alleged "intellectual property right"

[ Reply to This | # ]

SCO SHREDS IBM PATENT CLAIMS!
Authored by: Anonymous on Wednesday, April 28 2004 @ 02:20 AM EDT
Down toward the end of the PDF SCO makes some nasty claims about IBM's patents.
I hope Groklaw has some patent attorneys that can sort their claims out and
expose the BS!

[ Reply to This | # ]

New paragraph sign?
Authored by: Anonymous on Wednesday, April 28 2004 @ 02:46 AM EDT
Since when did one skip the paragraph sign § and start to use ¶ ?!

[ Reply to This | # ]

Where's IBM's Second Amended Counterclaims
Authored by: Anonymous on Wednesday, April 28 2004 @ 04:01 AM EDT
I've tried to find the document from IBM that this is the reply to. I think I'm
blind. Can someone please give the title or link to Groklaw's article on IBM's
second amended counterclaims ?

Thanks :)

[ Reply to This | # ]

17 is interesting because...
Authored by: inode_buddha on Wednesday, April 28 2004 @ 04:27 AM EDT
who determines authorization of UNIX? POSIX? Note the use of the word
"free" being implied only in the business sense (IMHO). Note also that
they completely miss the GNU.

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

No more claims of fraud or inequitable conduct
Authored by: Marc Duflot on Wednesday, April 28 2004 @ 04:46 AM EDT
In its affirmative defenses, SCO doesn't claim fraud or inequitable conduct
anymore like it does in its answer to IBM's first amended counterclaims. That
was the subject of IBM's motion to strike some affirmative defenses.

[ Reply to This | # ]

No. 73
Authored by: Anonymous on Wednesday, April 28 2004 @ 04:52 AM EDT

Hello,

It seems to me that in No. 73 SCO denies that they announced filing a copyright infringement action against IBM at the December 5 meeting :-)

IBM's claim was

73. At the December 5, 2003 hearing concerning discovery issues, SCO further represented to the Court that SCO would be filing a copyright infringement action against IBM "within the coming few days or no less than a week."
and SCO answered
Although wholly irrelevant, admits that the entier transscript of that hearing is the best evidence of what was said, including the comments ascribed to counsel, and denies the remaining allegations of ¶73 not specifically admitted herein.

This sounds like "if you don't have a better reference than the official court transscript, then we deny having said this".

Jochen

[ Reply to This | # ]

SCO's Answer to IBM's Second Amended Counterclaims
Authored by: inode_buddha on Wednesday, April 28 2004 @ 04:59 AM EDT
I sent the preamble and paras 1 - 20 thus far to PJ as txt. Can we put this
together? I'll be off line for a few hrs but mail me anyway. Thanks.

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

Is it usual to not reply to allegations if you put a motion in about them?
Authored by: Anonymous on Wednesday, April 28 2004 @ 05:52 AM EDT
I notice that the response to paragraph 169 to 173 (IBM's tenth counterclaim) is as follows:
These allegations are the subject of a motion to dismiss or stay and therefore no response is necessary.
Is this a typical response in this situation. If SCO's motion is denied then do they get a further chance to file a response, adding further delay? I would have thought that a lawyer would respond to the allegation anyway, if only to just deny it.

[ Reply to This | # ]

9th and 10th claim hardly differ
Authored by: Anonymous on Wednesday, April 28 2004 @ 08:19 AM EDT
The 9th and 10th claim hardly differ. For the 9th claim it
is already required to establish the validity of SCO's
copyrights.

But then it goes on, IBM asks for a declaratory judgment
"that IBM does not infringe, induce infringement of, or
contribute to the infringement of any SCO copyright
through its Linux activities, including its use,
reproduction and improvement of Linux, ..."

Now look at the "induce infringement" part.

SCO weasels this into "In other words, IBM is seeking to
declare that a person or entity using Linux does not
infringe upon SCO's copyrights"

Note that the "induce infringement" part is missing in the
SCO version.

SCO alleges in claim 190 of its second amended complaint
that IBM induced AutoZone to infringe SCO's rights.

So it was SCO who brought this issue up first in its
litigation against IBM, and only later did it sue AutoZone
over this issue.

[ Reply to This | # ]

SCO's Answer to IBM's Second Amended Counterclaims
Authored by: Anonymous on Wednesday, April 28 2004 @ 08:22 AM EDT
"Sixth Affirmative Deffense:
The General Public license is unenforcable, void and/or voidable, and IBM's
claims based theron, or realted to are barred."

I know SCO has been doing a lot of saber rattling over this, but isn't this the
first time they have said this IN COURT?

[ Reply to This | # ]

The reading of the answers
Authored by: mhoyes on Wednesday, April 28 2004 @ 08:41 AM EDT
While reading the answers the SCOG gives, I have to keep reminding myself of the
legal world and how it works.

When a statement is made in a motion, if it is not denied by the answer, then
that statement becomes fact in the eyes of the court. Thus, even for a simple
statement that seems to be totally true, it is safer to deny it. That doesn't
mean that all of the statements will be used in court. I think most of them are
to either, provide in minute detail a list of the dirty laundry, or to so
overwhelm the opposing attornies that they let things slip through the cracks.

That shows in the case of IBM saying that SCOG purported to stop shipping Linux,
and SCOG denying it, just means that the court has to determine the truth. It
doesn't even mean that the SCOG has to believe it.

This is contrairy to the real world, where you expect someone to deny things
based on reality and not as a way of saying "I disagree."

meh

[ Reply to This | # ]

IBM can't copyright their own code
Authored by: DebianUser on Wednesday, April 28 2004 @ 08:44 AM EDT
Their reply to 157 claims IBM has no right to copyright code that they wrote for
use in AIX and Dynix. It looks like a new wrinkle on their "all your code
belongs to us" position.

[ Reply to This | # ]

Please correct me if I am wrong
Authored by: mhoyes on Wednesday, April 28 2004 @ 09:09 AM EDT

I've been trying to make my way through the answers from SCO (hard going and I really wish I could get paid to do it) and I came to their seventh affirmative defense.

The GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, estopped or otherwise barred as a matter of equity.

But isn't it up to the copyright holder to decide to enforce the GPL and not the FSF? I know that there are copyrights that have been signed over to the FSF, but not all of them have.

meh

[ Reply to This | # ]

...not with a bang, but a whimper...
Authored by: Anonymous on Wednesday, April 28 2004 @ 09:12 AM EDT
It's all over.

SCOX, who had no case all along, has been forced to
concede time & again rather than face the embarrassmnet of
revealing they had nothing.

They confirm by this document that there is now nothing
left for them to concede.

From the moment SCOXtanic hit the IBM iceberg it was
doomed. They can rearrange the deck chairs as much as they
like now but she's going down.

I note that the rapacious Mr.Gates is going to showing off
previews of his 'Longhorn' in August, just in time for the
end of the SCOX FUD. My what a coincidence...

[ Reply to This | # ]

SCO is getting ripped off by Counsel
Authored by: NicholasDonovan on Wednesday, April 28 2004 @ 09:18 AM EDT
I've never seen such an amaturish reply in my life.
SCO is essentially saying that they know they have no case, however they still
want to waste the courts time anyway.

I wonder if their 'esteemed' *cough* legal Counsel will stick around when the
investigations begin?

SCO is done. Put the BBQ Sauce on and give to the dogs. They're not even worth
eating.


Cheers,


Nick

---
Not an Attorney.
Views expressed are my personal opinions and not necessarily those of my
employer or its affiliates.

[ Reply to This | # ]

Tenth Counterclaim
Authored by: WayneStPaul on Wednesday, April 28 2004 @ 10:16 AM EDT

I am surpriesed at SCO's response to the tenth counterclaim.

169-173. These allegations are the subject of a motion to dismiss or stay and therefore no response is necessary.

It looks like SCO is assuming that the motion will be granted. I always thought that until the motion was granted, that you responded to the points.

[ Reply to This | # ]

Why all the work on the patents?
Authored by: Anonymous on Wednesday, April 28 2004 @ 10:34 AM EDT
For all SCO's bluster that the patent claims should be separated from the case
why do they pay so much attention to them in the Answer? Couldn't all that
information go into a Memorandum in Support?

[ Reply to This | # ]

I still don't get it - claiming rights?
Authored by: Sgt_Jake on Wednesday, April 28 2004 @ 10:54 AM EDT
I have a problem that an A/C tried to answer a few days ago, and almost did
until I saw this today. Here's what I don't get;

AIX might be, in fact, a derivative of UNIX. And SCO might be entitled to
anything derived from AIX. But Linux isn't derived from AIX, it's derived (if
you can call it that) from Minix, which, if I remember right, wasn't even an OS
- it was a tool one of his teachers wrote to teach OS design [including
unix-like features]. Any contributions by IBM, no matter how substantial
(barring a rewrite of the entire kernel) still wouldn't make Linux [and I quote
Sco's answers to IBM's second amended counterclaims] "...in actuality, an
unauthorized version of UNIX...". Point 17.

My question is, how can SCO claim that Linux is an unauthorized derivative of
UNIX in a court of law without challenging the copyright holders, owners and
contributors of Linux? To be a derivative Linux has to be ORIGINALLY derived
from UNIX, which it clearly wasn't. And IBM didn't actively contribute until
what, 9 years after the kernel was made? So why does SCO get away with alleging
Linux is a derivative of UNIX? Can IBM move to strike those claims? Because IBM
can't decide if Linux is a derivative - neither can SCO for that matter, or the
court because the people who own it aren't involved in the case. SCO has to
challenge the LKML, don't they?

In short - isn't SCO legally asking the court to grant them title to the sandbox
and surrounding property because IBM played in it, even though IBM doesn't
actually own the sandbox?

[ Reply to This | # ]

Huh?
Authored by: MikeA on Wednesday, April 28 2004 @ 11:35 AM EDT
P26: "....[SCO] denies that the GPL applies to any program whose authors commit to using it, denies enforceability or applicability of the GPL,..."

P27: "[SCO] Admits that the GPL allows a licensee to distribute copies of free software, recieve source code and change and use the software in new free programs..."

Dont those two statements contradict each other?

---
Change is merely the opportunity for improvement.

[ Reply to This | # ]

SCO's Answer to IBM's Second Amended Counterclaims
Authored by: kbwojo on Wednesday, April 28 2004 @ 11:38 AM EDT
I walked by Boies's lawfirm the other day. The place was full of Crooks, Liars,
and Cheats. They also had some clients in there.

[ Reply to This | # ]

SCOG's GPL claims
Authored by: Christian on Wednesday, April 28 2004 @ 12:05 PM EDT
It is strange that they put in statements like, "Admits that Linux is licensed under the GPL," or "the license presently governing Linux (the General Public License)".

They should be claiming that Linux is distribution is not governed by the GPL. They do make this claim by denying the applicability of the GPL, but that just makes their claims contradictory.

Anyone sued by SCOG for using Linux can start the fight with, "SCOG said the GPL is the license that governs Linux, and we did not go beyond the rights given to us by the GPL." SCOG: "That's what we said, but we didn't mean it. Actually, we meant the exact opposite." Judge: "Wha?"

[ Reply to This | # ]

Why can't a copyright holder choose to selectively enforce the right?
Authored by: gard on Wednesday, April 28 2004 @ 12:23 PM EDT
Hi,
The GPL is selectively enforced by the Free Software Foundation such that enforcement of the GPL by IBM or others is waived, estopped or otherwise barred as a matter of equity.
Is there a legal requirement to universally enforce copyright by the holder? Couldn't the holder choose to ignore violation by certain parties, but not by others? In other words, couldn't the holder treat use by certain parties as "implicitly licenced", while other parties as not so permitted?

Does it weaken enforcement against a party that the holder wishes to treat as not permitted, if it is selectively applied?

Who is authorized to determine if enforcement is selective? Couldn't a holder have a confidential, "sealed" agreement, verbal even, with certain parties allowing use of the material?

Is there an "equity" requirement in copyright enforcement? What is wrong in selective enforcement, if the holder wishes to do just that?

If there's an "equity" requirement, is that US specific or part of the Berne convention?

gard

[ Reply to This | # ]

And in related news, the Brooklyn Bridge is for sale....
Authored by: MikeA on Wednesday, April 28 2004 @ 12:26 PM EDT
[COMPLAINT] P43. IBM is a participant in the open-source movement and has made a substantial investment in Linux business efforts over the last 5 years. IBM participates in a broad range of Linux projects that are important to the company and contribute to the open-source community.

[RESPONSE] P43. Admits the allegations of P43, but alleges that SCO was unaware of IBM’s Linux-related investment prior to its formal announcements thereof, and further alleges that IBM secretly and improperly failed to disclose to SCO such Linux-related investments and its intentions with respect to Linux before and during Project Monterey.

I thought that the whole point of Project Monterey, by SCO's own admission, was that they were pooling their resources of UNIX knowledge to make a better Linux. SCO has admitted this in public interviews in early 2003.

[COMPLAINT] 69. In May 2003, SCO first sent letters to 1500 of the world's largest corporations, including IBM , threatening litigation. In its letters, an example of which is attached hereto as Exhibit L, SCO states, "We believe that Linux infringes on our Unix intellectual property and other rights". SCO further states, "We intend to aggressively protect and enforce these rights" against not only the companies involved with "the Linux development process" but also "the end user" companies using any Linux technology.

[RESPONSE] P69. Admits having sent letters to the 1500 largest companies in the world and notes that the letters are the best evidence of the contents thereof, denies that said letters threatened litigation...

I think one can infer from the lanuage of the letters that they were threatening litigation, especially when you include the fact that they were making such claims in public.

[COMPLAINT] 100. In light of SCO' s continuing refusal to provide detail regarding its claims IBM moved on October 1, 2003 to compel complete responses to IBM' s First Set of Interrogatories, and on November 6, 2003, to compel complete responses to IBM' s Second Set of Interrogatories. Even in the face of these motions, however, SCO continued to attempt to obfuscate its claims and hide its evidence.

[RESPONSE] P100. Although legally irrelevant, SCO admits IBM filed motions to compel....

How is a court order legally irrelevant? (Perhaps when you ignore a court order, it becomes irrelevant?) I'm sure the judge will look upon this favorably.

---
Change is merely the opportunity for improvement.

[ Reply to This | # ]

Wait a minute....
Authored by: MikeA on Wednesday, April 28 2004 @ 12:42 PM EDT
They say Linux is designed to be indistinguishable from UNIX, though I seem to remember that UNIX only runs on special systems like Sun SparcStations and such that we used to use in our old office. But Linux runs on x86 desktops....am I missing something, or are they just trying to pull a fast one on the judge? Wouldn't that be considered a completely different system? And isnt the OS for Apple kinda the same?

If it is completely indistinguishable, then wouldn't it be AN EXACT COPY?? Oh jeez..we are in trouble. That must be millions of lines of code!

---
Change is merely the opportunity for improvement.

[ Reply to This | # ]

SCO's Answer to IBM's Second Amended Counterclaims
Authored by: dhshaw on Wednesday, April 28 2004 @ 12:44 PM EDT
I am a little confused about our legal system. If SCO is suing IBM, should they
not already have had all the evidence they required for this action? If they
were not ready, as far as I can see, the judge should have dismissed this case
months ago. It seems they are just wasting the court and everyones elses time.

[ Reply to This | # ]

Re: boilerplate
Authored by: inode_buddha on Wednesday, April 28 2004 @ 03:02 PM EDT
Boilerplate licensing is like an EULA, it seems. Let's go play that game.

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

OT : Forum Decorum
Authored by: Anonymous on Wednesday, April 28 2004 @ 03:58 PM EDT
When a poster makes an outrageous comment sometimes, it is not necessarily meant
as confrontational, but just for a laugh. That person's motives for posting are
questioned and it is suggested he should use special quotes or smilies to
highlight his intentions.

But giving the game away with all these smilies and special quotes, sometimes
ruins the irony.

Oh, but I forgot you Americans dont get that do you?

No wonder the US is the most lazy country, you even have to make the humoUr ('U'
intended) simple to understand!

According to Capernicus, and also modern astrological thinking, It is very
doubtful that the US is located at the middle of the universe. Please try to
remember that.

Perhaps you should chill a bit and 'assume' a deliberately confrontational post
is actually for fun! Consider this your first lesson, and your final warning.



[ Reply to This | # ]

17 is funny
Authored by: Anonymous on Wednesday, April 28 2004 @ 06:06 PM EDT
designed to destroy proprietary operating system software

Yes, SCOG has a point. That's because Linux has this /dev/blackhole, exported to the network by default, soaking up every single bit of non GPL'd software.

"The free nature of Linux is making it difficult for us to compete, therefore it infringes on our Constitution given rights to make money. Linux is creating the market that was destined for us. Therefore Linux must be illegal, somehow." seems to be the SCOG doctrine.

[ Reply to This | # ]

This is what SCOG is angling for
Authored by: Anonymous on Wednesday, April 28 2004 @ 06:15 PM EDT
get this thing in front of a jury

There they hope to re enact Ashcroft V Eldred. Read Doc Searls' analysis of why
Ashcroft V Eldred was lost.

THAT's what SCOG is going for.

The writing is all over their submissions.

"IP rights". They're using the language of a victim whose property
ahs been stolen.

They hope this solid line of thinking will make more sense to a jury than any
more abstract notions of copyright law.


"right -of-way / easement"
Darl has been saying this for a while now. Again, they hope that this solid,
non-abstract argument will sway a jury when more abstract language (which is
what they hope IBM will use in court) will not.

This line of attack was strong enough to pull the wool over the US Supreme
Court, it may be strong enough to pull the wool over a jury's eyes.

[ Reply to This | # ]

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