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| SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIMS - as text |
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Sunday, May 02 2004 @ 02:26 PM EDT
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Here it is as text, SCO's MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR TO STAY COUNT TEN OF PLAINTIFF IBM'S SECOND AMENDED COUNTERCLAIMS AGAINST SCO. Have you noticed how long the titles are becoming? A whole lot of motion practice going on. SCO dropped its "the GPL is unconstitutional" affirmative defense and now, in this document, they try to get IBM's Counterclaim Ten dismissed or stayed by claiming that they have brought no copyright infringement claim against IBM for "IBM's Linux activities" after all. They are not suing IBM for "IBM's use, reproduction and improvement of Linux":
"The only copyright claim SCO has asserted against IBM is primarily for IBM's continuing use of AIX and Dynix after SCO terminated IBM's UNIX licenses. See Second Amended Complaint, Count V. The Second Amended Complaint, however, does not contain a claim against IBM for copyright infringement arising out of its use, reproduction or improvement of Linux. With SCO's Second Amended Complaint being the final amendment and not containing a claim for infringement arising out of IBM's Linux Activities, the need for IBM's Tenth Counterclaim seeking such a declaratory judgment is nil." After the past year's media circus, you have it straight from the horse's mouth. The only copyright infringement claim they assert against IBM is for using and distributing AIX and Dynix after SCO "terminated" IBM's license, a termination that Novell told us they overruled. That's it, folks. What does that tell you?
It tells me that they looked and have failed to find copyright-infringing code in Linux that they can pin on IBM, except maybe for their unusual derivative code theory relating to AIX and Dynix. I believe only BayStar still thinks that will fly. I have my doubts even they do. They do claim in footnote 3 that they are litigating against IBM regarding its improvements to Linux, in a claim that "arises out of IBM's distribution of AIX and Dynix." But if you put that sentence together with the above, you see that they are only talking about post-"termination" use and distribution of AIX and Dynix. I know. It makes no sense. The footnote alone should defeat the motion, by admitting that there is an issue that would not be decided by the AutoZone case. But the real problem is, if they say it all clearly, the counterclaim won't be dismissed or stayed, so they present the court with some doubletalk. It's not about IBM's improvements in Linux when they want Counterclaim 10 dropped, but it is kinda, sorta about that with respect to Counterclaim 9, which they don't want dropped. To say it clearly, I think you'd have to say: "Please dismiss this counterclaim, because if IBM wins it, and we think they will, then all our AutoZone and son of AutoZone end user lawsuits might die. The whole world will laugh at us, and besides, our case against IBM could blow up. Plus, it would kill our FUD. If you can't bring yourself to dismiss it, please stay it while we waste some more time in Nevada, so the real issues won't be litigated anywhere soon and we can threaten end users a little longer." You think they'll send Congress another letter, correcting the false impression they created about "piracy" and other nonsense in the letter they sent them? Of course not. FUD is designed to linger in the air, like the smell of smoke from somebody's cigarette. I'd have a few choice words on the subject, but I'm confident IBM will mop up the floor with them by the time this is done. Imagine how they must feel, accused internationally of a "crime", with letters to Congress, no less, and press conferences, and road shows, all making them look like copyright infringers who "stole" SCO's code. And now, after discovery, it's "never mind". Nothing but a contract dispute. Wall Street obviously thinks it's all baloney, as you will see by this story about the recent Linux on Wall Street Show & Conference. Somebody needs to send a memo to Henning Kagermann, the CEO of SAP, though, who is "wary of open source" because of IP worries. Or so he claims:
"Kagermann stood alongside Dell CEO Michael Dell at a press conference in New York to promote a new alliance between their companies. The arrangement involves increased service and support for customers running SAP applications on either of the two OS's that Dell ships: Windows or Linux. But Kagermann expresses caution when it comes to the second of those options. 'I'm not sure personally about the future of open source,' he says.
"Kagermann's concerns are rooted in the intellectual property issue. Without directly mentioning SCO Group's legal campaign against Linux distributors and users, Kagermann says, 'There are some open questions for me. They start on the legal side. A few things could happen that could kill Linux.'
"Like what? If software companies using open source were forced to extract code from their products because of an IP violation, 'then people like us will be extremely carefuly in using open source,' he says. Kagermann acknowledges his views on open-source and IP are influenced by the fact that SAP is Europe's largest commercial software company." First, judging from what has happened so far, there don't appear to be any such issues, just contract claims against anyone foolhardy enough to enter a contractual relationship with SCO. Is he predicting an IBM-related pulling out of code? Second, IP violations occur every day in the proprietary world, judging by the constant stream of lawsuits they file against each other. To pretend this is an issue that is Linux-specific is cynical or just wrong, depending on his motives and level of education. It could just be that his company is well-named. Linux community code appears to be purer than the driven snow, cleaner than anybody's code, as far as infringement is concerned. Stop and think. For an entire year, SCO has been in discovery, with access to AIX and Dynix, and they already had System V code and full access to publicly accessible Linux code, and they failed to find any copyright infringement on IBM's part other than the contested license issue. Could there be a more ringing endorsement of Linux's purity than that? Obviously, the international band of Linux kernel authors have behaved honorably and respectfully of other people's intellectual property rights. Even in a worst-case scenario, if IBM were found guilty of violating their license with SCO, all that would prove is that the Open Source methodology is safe, but you'd best beware of large corporations. I see the moral of this story as being that the Open Source community has been certified as more upright than the proprietary side. That is SCO's achievement. Thanks, SCO, BayStar and all your helpers, for spending all those millions to prove to the world we are not pirates and that the community never stole any code. Do you believe that if we were given a year to sort through Microsoft code and look for IP violations we wouldn't find any? Or SCO's? Now there's a pleasant mental image, huh? My point is, the dark side tried and failed. They told the world that there was a problem, due to the open nature of Linux. They alleged there *must* be copyright violations, because of the open source method of development. Maybe they thought that because they steal code and hide it, we do too. But they were wrong. The community lives by a different ethical standard. And due to the open nature of Linux, everyone in the world having access to the code 24/7, how stupid would you have to be to steal someone's code and try to put it in Linux? It's just OldThink. Linux is counterintuitive to OldThinkers. Now, SCO is back-pedalling, because it's time to put up or shut up in court in the IBM case. SCO, in this document, pretends that they believe copyright infringement has happened and that all that will be resolved in the AutoZone case:
"In the AutoZone case referred to in IBM's Second Amended Counterclaims, the issues of
whether the use and reproduction of Linux infringes SCO's copyrights is squarely at issue." That's just trying to move the pea to a different shell in the game. And it's not true. It's not squarely at issue. AutoZone is an auto parts company. They don't contribute to the Linux kernel in any way. They can't, therefore, be a primary copyright infringer. Somehow, SCO wants us all to believe that there is no primary infringer yet proven but end users are guilty of copyright infringement for using the software. They skipped the essential Whodunnit part. If there is infringement, somebody must have infringed. Who? They told us for a year that it was IBM. But now they seem to be backing off except for contract claims. They told us SGI, but they never sued them. They threatened Red Hat but then begged the court to drop that case. So who is the infringer, the "pirate" here? To pretend that an end user lawsuit can resolve *all* copyright infringement issues is ridiculous. Maybe they are hoping the judge is too busy to read carefully. But the elephant on the table is, if there was copyright infringement, who did it? Where is it? And why isn't SCO suing *them*? You know they would if they could. I honestly don't see how any of this can be resolved by AutoZone. They couldn't be more in the dark about the Linux kernel. How can they prove if there has been infringement or not? No doubt that is why SCO would like IBM to wait for that case to go first. But if AutoZone goes first, then the decision about contributory infringement will be decided before any court has decided whether there has been primary copyright infringement by IBM or anybody else and before any court has decided whether SCO owns the copyrights or Novell does. That is, to say the least, backwards. Things are looking mighty bleak for the SCOfolk if this is their best shot. And every day in every way, SCO's claims are getting smaller and smaller.
*********************************************
Brent O. Hatch (5715)
Mark R. Clements (7172)
HATCH, JAMES & DODGE, P.C.
[address, phone, fax]
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, fax]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC.,
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant.
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MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS OR
TO STAY COUNT TEN
OF PLAINTIFF IBM'S
SECOND AMENDED COUNTER-
CLAIMS AGAINST SCO
Case No. 2:03CV0294 DAK
Hon. Dale A. Kimball
Magistrate Judge Brooke Wells
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Plaintiff/Counter-Defendant The SCO Group, Inc. ("SCO"), by and through undersigned
counsel, hereby submits its Memorandum in Support of its Motion to Dismiss or Stay Count Ten
of Counter-Plaintiff IBM's Second Amended Counterclaims Against SCO.
INTRODUCTION
On March 29, 2004, Defendant/Counter-Plaintiff International Business Machines Corp.
("IBM") filed its "Second Amended Counterclaims Against SCO." In Count Ten of that pleading,
IBM added an entirely new claim seeking 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, and that some or all of
SCO's purported copyrights in UNIX are invalid and unenforceable." ¶ 173. In other words,
IBM is seeking to declare that a person or entity using Linux does not infringe upon SCO's copyrights
and that some or all of SCO's copyrights are invalid or unenforceable. This precise issue will be
litigated in a case filed by SCO against AutoZone in federal district court in Nevada; a case filed
prior to IBM filing its Tenth Counterclaim. See The SCO Group Inc. v. AutoZone, Inc., Case No.
CV-S-04-0237-DWH-LRL (D. Nev. 2004). This newly added counterclaim raises issues separate
and apart from the primary breach of contract and other direct claims and counterclaims in this
case. [1] Given this fact, and to avoid multiple suits determining substantially similar issues, this
Court should decline to exercise jurisdiction over and dismiss Counterclaim Ten. In the
alternative, Counterclaim Ten should be stayed pending the outcome in the prior filed AutoZone
case.
ARGUMENT
The federal declaratory judgment statute provides "[i]n a case of actual controversy within
its jurisdiction . . . any court in the United States . . . may declare the rights and other legal
relations of any interested party seeking such declaration." 28 U.S.C. § 2201. While this statute
vests the federal courts with power and competence to issue a declaration of rights, see Public
Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962)(per curiam), the question of whether
this power should be exercised in a particular case is vested in the sound discretion of the district
courts. Id.; see also St. Paul Fire and Marine Ins. Co. v. Runyon, 53 F. 3d 1167, 1168 (10th Cir.
1995); Sierra Club v. Yeutter, 911 F.2d 1405, 1420 n.8 (10th Cir. 1990). Stated differently, "[t]he
Declaratory Judgment Act was an authorization, not a command. It gave federal courts
competence to make a declaration of rights; it did not impose a duty to do so." Public Affair
Assoc. v. Rickover, 369 U.S. 111, 112 (1962). Accordingly, any review of this Court's decision to
abstain from exercising federal declaratory judgment jurisdiction is limited to deciding whether
the court abused its discretion. Runyon, 53 F. 3d at 1168.
Count Ten Raises Issues That Are Not At Issue Here And That Are
Redundant of Those Presented In A Prior Filed Action and Therefore
Should Be Dismissed or Stayed.
The only copyright claim SCO has asserted against IBM is primarily for IBM's continuing
use of AIX and Dynix after SCO terminated IBM's UNIX licenses. See Second Amended
Complaint, Count V. The Second Amended Complaint, however, does not contain a claim against
IBM for copyright infringement arising out of its use, reproduction or improvement of Linux.
With SCO's Second Amended Complaint being the final amendment and not containing a claim
for infringement arising out of IBM's Linux Activities, the need for IBM's Tenth Counterclaim
seeking such a declaratory judgment is nil.
Although SCO has not sued IBM for copyright infringement arising out of "IBM's use,
reproduction and improvement of Linux" (¶171), IBM's Tenth Counterclaim nonetheless seeks a
"Declaratory Judgment of Noninfringement of Copyright" arising out of IBM's Linux activites. (¶
173). However, as IBM acknowledges in its counterclaim, SCO filed an earlier copyright action
arising from another company's similar act of using Linux. (¶¶ 79-80). This earlier filed copyright
claim by SCO against another user of Linux implicates the same question presented by IBM's
counterclaim: Whether Linux infringes SCO's copyrights? Indeed, as detailed below, that case
also will determine the enforceabaility of SCO's claims of infringement arising from the use of
Linux, including the enforceability of SCO's copyrights. Moreover, the precise issue of copyright
infringement arising from the use of Linux is the sole issue in that case, unlike here, where there
exist many complex claims. Under these circumstances, this Court should dismiss or stay Count
Ten of IBM's Second Amended Counterclaims.
In the AutoZone case referred to in IBM's Second Amended Counterclaims, the issues of
whether the use and reproduction of Linux infringes SCO's copyrights is squarely at issue. A
copy of the Complaint in that action is attached as Exhibit A (of which this Court can take judicial
notice). [2] In that case, SCO has alleged that AutoZone "has infringed and will continue to infringe
SCO's copyrights in and relating to Copyrighted Materials by using, copying, modifying, and/or
distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted
Materials in connection with its implementations of one or more versions of the Linux operating
system, inconsistent with SCO's exclusive rights under the Copyright Act." AutoZone Complaint,
¶21. Thus, in defending against a claim of infringement based on its use of Linux, AutoZone will
be litigating the same issues that IBM seeks to inject in this case through Count Ten. [3]
Determining in this case the enforceability of SCO's copyrights and whether Linux
infringes SCO's copyrights at the same time the issue is being litigated in the federal court in
Nevada would entail unnecessary duplication of judicial efforts and run the risk of varying
adjudications. With an actual case or controversy regarding whether Linux infringes upon SCO's
copyrights pending in another courthouse, this Court should dismiss Count Ten or stay it until the
Nevada court has resolved the issue of whether use of Linux infringes SCO's copyrights.
Certainly, two federal courts should not simultaneously be determining whether the same
copyrights are infringed. This is precisely why federal courts, as noted above, have discretion to
entertain declaratory judgment requests. Here, with the plethora of complex issues already
pending in this action, this Court should exercise its discretion on this declaratory judgment claim
and dismiss Count Ten.
If this Court is inclined to retain jurisdiction over Count Ten, then it should stay the action
pending the outcome of the previously filed Nevada action. The stay that SCO seeks here is
virtually identical to that sought in Apex Hosiery Co. v. Knitting Machines Corp., 90 F. Supp. 763
(D. Del. 1950). In that case, Apex brought suit against Knitting Machines for a declaratory
judgment on the validity of certain patents. The federal court noted that there was a prior filed suit
already pending against another user of similar machinery where the validity of the patents would
be heard. Noting that "the needless and burdensome trouble and expense of litigating two identical
suits at the same time and at different places [could] be obviated," the court ruled that the Apex
case should be stayed. Id. These same issues appear here and compel that IBM's later filed,
redundant claim be stayed.
CONCLUSION
Count Ten presents issues already before another federal court, and, on that basis, should
be dismissed or, at a minimum, stayed pending the outcome of the prior filed AutoZone case
pending in Nevada.
DATED this 23rd day of April, 2004.
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Respectfully submitted,
By: ____[signature]_____
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
David K. Markarian
Counsel for Plaintiff/Counterclaim defendant
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-
These copyright claims, likewise, have nothing to do with the patent counterclaims, which are separate and apart from all other claims in the case and therefore are the subject of a pending motion for separate trial.
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Federal Rule of Evidence 201; see also St Louis Baptist Temple, Inc. v. F.D.I.C., 605 F.2d
1169, 1172 (10th Cir. 1979)(holding that federal courts may take notice of proceedings in other
courts, both within and outside of the federal judicial district if those proceedings have a direct
relation to matters at issue). In addition, because IBM relied upon the AutoZone filing in the
Second Amended Counterclaim, this Court may properly consider that Complaint filed in
AutoZone in ruling on the motion to dismiss. GFF Corp. v. Associated Wholesale Grocers, Inc.,
103 F.3d 1381, 1384 (10th Cir. 1997)(stating, "[I]f a plaintiff does not incorporate by reference or
attach a document to its complaint, but the document is referred to in the complaint and is central
to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be
considered on a motion to dismiss.").
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The only issue that arguably would not be decided by the federal court in Nevada is
whether IBM's improvements to Linux infringe upon SCO's copyrights. If this Count Ten was
merely based on infringement arising from IBM's improvements to Linux, then SCO would not
have sought dismissal or a stay. In fact, the issue of the impropriety of IBM's improvements to
Linux is part of the basis for IBM's Ninth Counterclaim, also titled "Declaratory Judgment of
Noninfringement of Copyrights," which arises out of IBM's distribution of AIX and Dynix. (¶
165). SCO did not move to dismiss or stay that count.
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| Authored by: PJ on Monday, May 03 2004 @ 03:33 PM EDT |
| Please put typos and errors here, so I can find them quickly. Thank you. [ Reply to This | # ]
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| Authored by: tizan on Monday, May 03 2004 @ 03:37 PM EDT |
So if Baystar think that will fly ...then they should invest money in me too...
I sure can fly ... 20 millions please ....
How come fools always invest in others and not people like me...I'm honest
..you'll lose your 20 millions with me...no shooting of my mouth etc...what more
do you
want ?
---
tizan: Knowledge is shared[ Reply to This | # ]
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| Authored by: kenryan on Monday, May 03 2004 @ 03:45 PM EDT |
I would *dearly* love to see a hearing transcript where a SCO lawyer attempts to
explain to a judge, if the only issue is IBM continuing to do AIX work after
their license was terminated, just what their license was terminated *for*...
---
ken
(speaking only for myself)[ Reply to This | # ]
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- SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM - Authored by: Anonymous on Monday, May 03 2004 @ 04:01 PM EDT
- SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM - Authored by: GLJason on Monday, May 03 2004 @ 04:08 PM EDT
- re: what they will argue now - Authored by: Anonymous on Monday, May 03 2004 @ 05:20 PM EDT
- SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM - Authored by: Sander on Monday, May 03 2004 @ 05:50 PM EDT
- SCO'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS/STAY COUNT 10 OF IBM's 2ND AMENDED COUNTERCLAIM - Authored by: winkey on Monday, May 03 2004 @ 06:51 PM EDT
- No, it is quite clear... - Authored by: Anonymous on Monday, May 03 2004 @ 10:59 PM EDT
- QUESTION: - Authored by: Anonymous on Monday, May 03 2004 @ 11:29 PM EDT
- Answer - Authored by: pjcm on Tuesday, May 04 2004 @ 07:17 AM EDT
- Answer - Authored by: Anonymous on Tuesday, May 04 2004 @ 10:04 AM EDT
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| Authored by: Anonymous on Monday, May 03 2004 @ 03:47 PM EDT |
RE: Pj's statement as follows: "The only copyright infringement claim they
assert against IBM is for using and distributing AIX and Dynix after SCO
"terminated" IBM's license, a termination that Novell told us they
overruled. That's it, folks. What does that tell you"?
I think that they are pulling all infringement GUNS back and wanting to use that
amunition on LINUX USERS in direct battle with them to crank up the effect of
their FUD.
If AutoZone is able to get their stay pending outcome of IBM, Novell, Red HAT...
then, SCO has no ammo or guns to point at anyone and there goes the McBride
projected revenue stream... I'll bet this action is the result of BAYSTAR
meetings (but Baystar will deny it)!
[ Reply to This | # ]
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- A perpetual and irrevocable license - Authored by: Anonymous on Monday, May 03 2004 @ 04:03 PM EDT
- Judgement - Authored by: RLP on Monday, May 03 2004 @ 04:42 PM EDT
- Re: What does that tell you? Well, they want to corner USERS on infringement (afraid of IBM)! - Authored by: Anonymous on Monday, May 03 2004 @ 04:17 PM EDT
- Re: What does that tell you? Well, they want to corner USERS on infringement (afraid of IBM)! - Authored by: Anonymous on Monday, May 03 2004 @ 04:29 PM EDT
- Re: What does that tell you? Well, they want to corner USERS on infringement (afraid of IBM)! - Authored by: Anonymous on Monday, May 03 2004 @ 05:31 PM EDT
- Re: What does that tell you? Well, they want to corner USERS on infringement (afraid of IBM)! - Authored by: Anonymous on Monday, May 03 2004 @ 11:06 PM EDT
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| Authored by: Anonymous on Monday, May 03 2004 @ 03:48 PM EDT |
Do I have this right? SCO has dropped all claims against IBM, except the one
about AIX being used after being "terminated"? If so, SCO's management
should do jail time. I must be missing something.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 03:55 PM EDT |
Please reply to this message with new links of interest to Groklaw readers.
This makes it easy to find them. Please try to use the HTML Formatted mode to
make it easy to click on a link and follow it directly to the article of
interest.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 03:57 PM EDT |
I loved the bit in the article that where a wall street guy says they're
upgrading away from Sun to Linux. How humiliating for Sun: they always regard
themselves as the quality end of the market that people upgarde to. Couldn't
happen to a nicer company.[ Reply to This | # ]
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| Authored by: SkArcher on Monday, May 03 2004 @ 03:57 PM EDT |
This effectively admits that IBM have no infringed upon any Unic IP rights with
Linux. Is there any chance of further charges against SCO by IBM for
anti-competitive practices a la the Red Hat case, as IBM are evidently a Linux
company (see the IBM adverts) in competition with external Unices.
---
irc.fdfnet.net #groklaw[ Reply to This | # ]
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| Authored by: AdamBaker on Monday, May 03 2004 @ 03:58 PM EDT |
The guy from SAP does have a valid point although he possibly hasn't worked out
what it is. There is one specific aspect of IP law that we all know is a problem
for open source - patents.
Even if something was implemented in Linux first, if someone later takes out a
patent on the idea and the patent office fail to notice the prior art the owner
of the patent can then start suing the author of the code. The claim would be
winnable if the author could afford to go to court but patent cases cost so much
to defend - even for the easy win cases that if the patent holder agrees to drop
the case in exchange for the code being pulled the author has no option but to
agree. That is why patents are the next battleground.[ Reply to This | # ]
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| Authored by: Carlo Graziani on Monday, May 03 2004 @ 04:01 PM EDT |
Kagermann can't be as ambivalent about open source as he seemed in this
interview. SAP hass jumped into MySQL with both feet: See
this.
Maybe it's
just standing next to Michael Dell that made him temporarily stupid.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:06 PM EDT |
this whole case is becoming more convoluted than my ex-wife's delusions. (and i
didn't think that was possible. hehehee) hmmmmm...... maybe they're getting
their ideas from her. lol
anyway, if SCO is only claiming that IBM is continuing to distribute AIX and
DYNIX in disreguard to SCO's termination (?) of their license to do so, it seems
to me (IANAL) that SCO is now saying that IBM hasn't done anything wrong. so
wouldn't that mean that SCO had no basis for terminating their license to begin
with? and assuming that is true, then shouldn't the judge dismiss this case w/
prejudice, and allow the countersuits to go ahead and wipe SCO of the face of
the planet? or does that only occur in a perfect world? then again, in a perfect
world, this wouldn't have happened. well, i guess now that brain is numb from
trying to reason this all out, i can go mow the lawn.[ Reply to This | # ]
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| Authored by: Captain on Monday, May 03 2004 @ 04:11 PM EDT |
| Excellent article PJ. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:13 PM EDT |
They can't revoke the license without reason.
They revoked the license because IBM contributed code, that they owned because
it was derivative of their code, to Linux.
Their logic only works if you ignore the reason they revoked the license in the
first place.
Is it really that simple or am I missing something?[ Reply to This | # ]
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| Authored by: cybervegan on Monday, May 03 2004 @ 04:14 PM EDT |
"And every day in every way, SCO's claims are getting
smaller and smaller."
Love it - how long before it's completely vapourised?
Hey Darl, how's it feel to be known as a paper tiger? You
don't need body-guards, you need a fire-extinguisher!
(Make sure it's not a water-based one, though).
-cybervegan
---
I wish I never had taken this dare
I wasn't quite prepared
doll me up in my bad luck
I'll meet you there -- verse 2, "Doll" by Foo Fighters[ Reply to This | # ]
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| Authored by: DaveAtFraud on Monday, May 03 2004 @ 04:15 PM EDT |
First the SCOflaws say that IBM made illegal contributions to Linux that
disclosed SCO trade secrets. In punishment, SCO pulled IBM's license to
distribute AIX but, low and behold, there were no trade secrets disclosed. Then
the SCOflaws claimed that IBM made illegal contributions to Linux that violated
SCO copyrights. Now, low and behold, SCO says, "Just kidding. There are
no IBM copyright violations." Have the SCOflaws just admitted to
improperly revoking IBM's Unix license for AIX? Likewise, what is left as a
basis for their case against IBM? If IBM didn't give away their trade secrets
and didn't violate their copyrights, what is left as a basis for suing IBM? It
appears that SCO's suit comes down to suing IBM because IBM chose to make
contributions to Linux that helped make Linux competitive with Unixware.
Note that I'm disregarding a number of details like SCOG may not own the
copyrights to begin with and that Novell waived SCO's actions, etc. Even if by
some stretch of the imagination SCO were to somehow own the Unix copyrights,
this filing implies that nothing IBM has done is wrong.
---
Quietly implementing RFC 1925 wherever I go.[ Reply to This | # ]
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| Authored by: Stefan2100 on Monday, May 03 2004 @ 04:19 PM EDT |
The CEO of SAP, Mr Henning Kagermann, ought to check his partnership list, since
MySQL, the leading Open Source SQL database vendor, is on that list.
At
least MySQL seem to be happy with that partnership, since they advertise it on
several places on their company site:
SAP is a MySQL Strategic Alliance Partner
SAP
is a featured partner on the MySQL Partner
Solutions page
Press release from last year: M
ySQL AB and SAP AG Partner to Bring New Open Source Database Technologies to the
Enterprise[ Reply to This | # ]
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| Authored by: lightsail on Monday, May 03 2004 @ 04:25 PM EDT |
| TSG could not act dumber, TSG finds a new way to shoot its own foot! [ Reply to This | # ]
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| Authored by: red floyd on Monday, May 03 2004 @ 04:25 PM EDT |
After spending most of the after noon below 6.00, SCOX made a small surge at
the very end of the trading day to close at 6.
Anyone want to place bets on 5.00, 4.00, 3.00, etc?
---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.
[ Reply to This | # ]
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- OT: Stock - Authored by: red floyd on Monday, May 03 2004 @ 04:26 PM EDT
- OT: Stock - Authored by: Anonymous on Monday, May 03 2004 @ 05:10 PM EDT
- OT: Stock - Authored by: Anonymous on Monday, May 03 2004 @ 05:33 PM EDT
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| Authored by: eamacnaghten on Monday, May 03 2004 @ 04:26 PM EDT |
It makes me angry when I hear people say that Open Source developers are more
likely to be guilty of piracy than proprietary software companies.
I am a developer, and I have worked for both proprietary software companies and
have been involved in open source projects.
In ALL proprietary projects IP was stolen, and always by the orders of senior
management, usually the CEO or equivalent.
I have never known IP to be stolen in an open source project.
The problem with proprietary comapnies is two fold, first pressure is on in
proprietary projects to get the product out spending as little money as
possible, and that "people will not get angry at what they don't
know...". The second is that proprietary apps are closed, and it is very
difficult to know if there is anything stolen in there or not. In short -
temptation is there and is always (in my experience) yielded to.
Open source projects differ firstly in that they are - well - open - for all to
see, so that only a complete idiot would put stolen stuff there. Also as open
source projects build on top of other open source projects piracy is not
neccessary to get the project out.
I do not know where the concept that proprietary software companies respect IP
more than free software developers (strike that, I actually do, from FUD from
various people... ) but the reality is that there is no group of people I know
of that respects IP more than the Open Source Development community.[ Reply to This | # ]
|
| |
| Authored by: capitalist_pig on Monday, May 03 2004 @ 04:28 PM EDT |
Tells me that the Fat Lady is taking a deep breath...
[ Reply to This | # ]
|
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| Authored by: dkpatrick on Monday, May 03 2004 @ 04:34 PM EDT |
If SCO continues to back off on its claims against IBM, only IBM gets an
immediate benefit. The issue of IP, copyrights, constitionality of GPL, etc.,
won't get litigated. It begins to look like SCO got the tiger by the tail, wants
to let go, so it can beat up on the mice in the jungle. The presumption is that
Autozone, et. al., will be unable to mount the gorilla defense of the Nazgul.
That leaves SCO (Microsoft?) to dispense FUD until the money runs out.
---
"Keep your friends close but your enemies closer!" -- Sun Tzu[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:37 PM EDT |
So, umm, can they actually get away with something like this? Spend a year
saying one thing, in their filings, in their statements to the court, and in the
press, and then withdraw the claim before it is adjuticated because they are
likely to lose it?
Obviously, they shouldn't, but what is the legal precedent for this sort of
thing. [ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:38 PM EDT |
in the RH case they said that the IBM case would resolve all copyright
infringement issues with Linux. Now they are saying that it isn't about
copyright at all, and that the "existing" AutoZone case will solve
them. Is this some kind of legal hot potato game? "case N: No judge,
please dismiss or stay these claims because case N+1 will resolve them. case
N+1: please dimiss or stay these claims because case N+2 will resolve them.
..." Meanwhile they talk trash is the trade magazines, destroying people's
good names.[ Reply to This | # ]
|
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| Authored by: seanlynch on Monday, May 03 2004 @ 04:40 PM EDT |
How can this case be about IBM's continued use of AIX after SCO has
terminated their license?
The SCO v. IBM case was launched in March of
2003, but the license wasn't terminated until June 16th of 2003!
Checking
the archives here on Groklaw, the dates are in IBM's amended counterclaims to SCO, as well as elsewhere. We can
see that background point 57 says:
"57. SCO has repeatedly
made false public statements to the effect that it has the right and authority
to revoke, and has effectively revoked, IBM's right to use aix, IBM's version of
Unix. For example, on May 12, 2003, Chris Sontag, a Senior Vice President of
SCO, stated publicly, SCO has "the right to revoke the aix license", and on
June 16, 2003, SCO announced publicly that it had "terminated IBM's right to use
or distribute any software product that is a modification of or based on Unix
System V source code". Indeed, in an interview given by SCO CEO Darl McBride
to Peter Williams of vnunet.com on June 25, 2003, SCO falsely represented that
its contractual rights to "pull" IBM's contract are "bullet-proof". SCO has made
similarly false statements relating to Dynix. "
(emphasis
mine.)
So how can this case be about something that didn't
happen until after the case was filed? [ Reply to This | # ]
|
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| Authored by: ricerocket on Monday, May 03 2004 @ 04:41 PM EDT |
| I can't wait to read his next "SCO Should Win" article... [ Reply to This | # ]
|
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| Authored by: kberrien on Monday, May 03 2004 @ 04:43 PM EDT |
Ok, PJ, we're about done here. Start working on that book.. I got my sharpie
ready![ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:43 PM EDT |
You think SCO is thinking that the Linux end-user is 'in possession of stolen
[IP] property' and therefore 'guilty'. I mean in the sense that I acquire a
bicycle (either as gift or bought) and it turns out to be stolen, the police can
arrest me!?! Is that where SCO is going with this? Is that the real smoke in
this FUD campaign?
Does IP law have a similar effect - is there a 'possession of stolen IP
property' aspect here that would affect end-users? Or is SCO trying to re-write
that part of IP law to be equal to or similar to that of (not certain of the
term) regular property....?
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:44 PM EDT |
After having read this longed-named motion, I can still
notice that FUD is everywhere between the lines...
SCO never says anything with specificity (how strange is
that...)
Example:
"The only copyright claim SCO has asserted against IBM
is primarily for IBM's continuing use of AIX"
> And several months later, we'll hear something like:
"Nah, you misunderstood your honor! We said PRIMARILY,
but there is this other stuff also... {present new theory} Can
we have more time please?"
[ Reply to This | # ]
|
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| Authored by: dmscvc123 on Monday, May 03 2004 @ 04:45 PM EDT |
"Through contributing AIX source code to Linux and using UNIX methods to
accelerate and improve Linux as a free operating system, with the resulting
destruction of UNIX, IBM has clearly demonstrated its misuse of UNIX source code
and has violated the terms of its contract with SCO."
http://www.theage.com.au/articles/2003/06/17/1055615761693.html
So that's not true, SCO is the who violated the terms of the alleged contract
between SCO and IBM.[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:48 PM EDT |
SCO have accused IBM of infringing their copyright by distributing Linux under
the GPL.
IBM have in turn accused SCO of infringing their copyright by distributing GNU
software without adhering to the terms of the GPL.
SCO has now withdrawn its claim against IBM.
IBM's counterclaim is independent of this and still stands.
SCO have also accused AutoZone of infringing their copyright of what is
effectively the same code.
SCO want to continue with the case against AutoZone. If it wins it will sue IBM
again together with the rest of the world.
I seem to be losing the plot here, surely the suitcase with the offending code
should have been handed over to IBM by now, presumably it will now have to go to
AutoZone.
Am I getting this right?
[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:49 PM EDT |
Sounds to me like Darl may have a lawsuit against those MIT-type data miners
they hired to scour the code bases. Where did those millions of lines of code
come from?
Hopefully, if they have any integrity whatsoever, all the industry pundits out
there who backed SCO will resign their positions. I would say the same thing
about SCO and company et al, but it is my opinion that they don't have any.[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:54 PM EDT |
They just admitted that for the last year they have been coning and threatening
the general public. They have even taken money for something they just admitted
they don't own. Can you say false advertisement. If I were to run around telling
everyone that I owned the patent to the gas motor and anyone who owned a car
owned me money. Then, even went so far as to actually collect the money under
false pretenses and no proof. Would I not eventually wind up in jail? This is
not considering all the stock market effects as well.[ Reply to This | # ]
|
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| Authored by: rweiler on Monday, May 03 2004 @ 04:54 PM EDT |
It would be well not to get too excited. As near as I can tell, SCO's primary
charge, that IBM breached their contract with SCO by contributing code from AIX
and Dynix to Linux, is still intact. SCO pulled IBM's AIX license because of
the breach of contract, not because of trade secret or copyright violation. The
only thing that this really makes clear is SCO categorically states that users
of IBM's SMP, NUMA, and JFS code are not at risk of being sued for copyright
infringement. That's quite a concession, but it isn't quite the whole ballgame.
---
Sometimes the measured use of force is the only thing that keeps the world from
being ruled by force. -- G. W. Bush
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 04:57 PM EDT |
For those who enjoy devising legal strategies, what do you think IBM's next step
will be (other than the obvious "Do not stay or dismiss" motion?[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 05:19 PM EDT |
If I understand this correctly, SCOX is now saying:
(1) SCO arbitrarily and unjustifably cancelled IBM's contract allowing IBM to
distribute their versions of Unix (AIX and Dynix).
(2) IBM ignored our action, saying it was arbitrary and unjustified.
(3) We want $5 BILLION because they ignored us!
That line of argument should go far![ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 05:21 PM EDT |
| I am confused. What does SCO still have left on the table? [ Reply to This | # ]
|
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| Authored by: grubber on Monday, May 03 2004 @ 05:27 PM EDT |
| Maybe SCO's lawyers don't speak English as a first language. If they do, they
should hire a grammarian! Imagine this converstaion:
John: Hey, Stan,
I have a question for you.
Stan: Go ahead.
John: Whether
Linux infringes SCO's copyrights?
Stan: Huh?
I quote SCO's
memo:
This earlier filed copyright claim by SCO against another user
of Linux implicates the same question presented by IBM's counterclaim: Whether
Linux infringes SCO's copyrights?
That's not proper English.
Either of the following would be OK:
- The question is: Does Linux
infringe SCO's copyrights?
- The question is whether Linux infringes
SCO's copyrights.
Now the real question is: Whether IBM
claims slander?[ Reply to This | # ]
|
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| Authored by: GLJason on Monday, May 03 2004 @ 05:33 PM EDT |
| See their second amended
complaint:
3. A variant or clone of UNIX currently exists
in the computer marketplace called “Linux.” Linux is, in material part, based
upon UNIX source code and methods.
As such, the
Linux 2.4.x and Linux 2.5.x and 2.6.x kernels are unauthorized derivatives of
UNIX System V.
6) c) c) incorporating (and inducing,
encouraging, and enabling others to incorporate) SCO’s proprietary software into
Linux open source software
offerings.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 05:37 PM EDT |
| So what happens to those that bought a license from SCO? [ Reply to This | # ]
|
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| Authored by: moogy on Monday, May 03 2004 @ 05:37 PM EDT |
SCOG is now saying that this case has nothing to
do with "IBM's use, reproduction and improvement
of Linux"
Let's look at clips from their original filing.
http://www.sco.com/scosource/complaint3.06.03.html
----
Nature of This Action
3. ...
This case is, and is only, about the right of SCO not
to have its proprietary software misappropriated and
misused in violation of its written agreements and
well-settled law. ...
4. As set forth in more detail below, IBM has breached
its own obligations to SCO, induced and encouraged
others to breach their obligations to SCO, interfered
with SCO?s business, and engaged in unfair competition
with SCO, including by
a) misusing and misappropriating SCO?s proprietary
software;
b) inducing, encouraging, and enabling others to misuse
and misappropriate SCO?s proprietary software; and
c) incorporating (and inducing, encouraging, and
enabling others to incorporate) SCO?s proprietary
software into open source software offerings.
----
Limitations of Linux Before IBM?s Involvement
86. It is not possible for Linux to rapidly reach UNIX
performance standards for complete enterprise
functionality without the misappropriation of UNIX code,
methods or concepts to achieve such performance, and
coordination by a larger developer, such as IBM.
----
IBM?s Scheme
93. IBM, however, was not and is not in a position legally
to ?open source any part of AIX that the Linux community
considers valuable.? Rather, IBM is obligated not to open
source AIX because it contains SCO?s confidential and
proprietary UNIX operating system and, more importantly,
the code that is essential for running mission critical
applications (e.g., wire transfers) for large businesses.
94. Over time, IBM made a very substantial financing
commitment to improperly put SCO?s confidential and
proprietary information into Linux, the free operating
system. ...
That team of IBM programmers is improperly extracting
and using SCO?s UNIX technology from the same building
that was previously the UNIX technology center.
96. Again, ?IBM?s AIX contributions? consisted of the
improper extraction, use, and dissemination of SCO?S UNIX
source code and libraries, and unauthorized misuse of
UNIX methods, concepts, and know-how.
99. The only way that the pathway is an ?eight-lane
highway? for Linux to achieve the scalability, SMP support,
fail-over capabilities and reliability of UNIX is by the
improper extraction, use, and dissemination of the
proprietary and confidential UNIX Software Code and
libraries.
101. On information and belief, IBM has knowingly
induced, encouraged, and enabled others to distribute
proprietary information in an attempt to conceal its
own legal liability for such distributions:
102. IBM is affirmatively taking steps to destroy all
value of UNIX by improperly extracting and using the
confidential and proprietary information it acquired
from UNIX and dumping that information into the open
source community.
----
THIRD CAUSE OF ACTION (Interference with Contract)
125. IBM, directly and through its Linux distribution
partners, has intentionally and without justification
induced SCO?s customers and licensees to breach their
corporate licensing agreements, including but not limited
to, inducing the customers to reverse engineer, decompile,
translate, create derivative works, modify or otherwise
use the UNIX software in ways in violation of the license
agreements. These customers include Sherwin Williams,
Papa John?s Pizza, and Auto Zone, among others. The
licensees include Hewlett-Packard, Fujitsu, NEC and
Toshiba, among others.
----
FOURTH CAUSE OF ACTION (Breach of Contract)
[Gee, we finally get to the contract dispute part]
135. Notwithstanding these provisions, IBM has
subjected SCO?s UNIX trade secrets to unrestricted
disclosure, unauthorized transfer and disposition,
unauthorized use, and has otherwise encouraged others
in the Linux development community to do the same.
SCO, therefore, has terminated IBM?s license to use
UNIX-based software products.
----
As PJ would say... Well there you are. In their
original filing they say they terminated IBM's
license because they contributed SCOG's UNIX to
Linux. But now they say it's only about an
infringemnet claim AFTER they terminated IBM's
license.
This is the ultimate in judicial circular reasoning.
c) incorporating (and inducing, encouraging, and
enabling others to incorporate) SCO?s proprietary
software into open source software offerings.
Just what could they be refering to?
---
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 | # ]
|
| |
| Authored by: Anonymous on Monday, May 03 2004 @ 05:40 PM EDT |
>>> For an entire year, SCO has been in discovery, with access to AIX
and Dynix, and they already had System V code and full access to publicly
accessible Linux code, and they failed to find any copyright infringement on
IBM's part other than the contested license issue. Could there be a more ringing
endorsement of Linux's purity than that? <<<
I doubt there is any improper code in the kernel, BUT the fact that they can't
find something is NO endorsemnt.It's just more confirmation that they don't have
a clue where or how to look. Im sure they have some soon-to-be-unemployed
analyst sorting through piles of DIFF reports (wouldn't want to use any of that
OPEN source code to compare code trees now, would we????) frantically trying
to figure out how to produce "proof" of the "Proceedures and
process'" that are BAD. And every 3 days someone is telling him to do it
all again (in a slighly different direction), cause those nasty IBM lawyrers
made us say "never-mind" again...[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, May 03 2004 @ 05:41 PM EDT |
"How stupid would you have to be to steal someone's code and try to put it
in Linux?"
How true.
[ Reply to This | # ]
|
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| Authored by: AllParadox on Monday, May 03 2004 @ 05:47 PM EDT |
For me, the most controversial part is the allegation by TSG that IBM's #10 is
an "entirely new" issue.
This is simply not correct. TSG's initial petition in this case indirectly
suggests that there are copyright infringement issues. Although thin, I think
it raised the issue to a sufficient level to justify TSG presenting evidence at
trial, up to the time that they filed the Second Amended complaint. Mr.
McBride, and TSG's press releases, strongly state that SCO v. IBM is about
copyright issues, not just contract issues.
The driving force behind IBM's cross-claim for a declaratory judgment on this
topic is that TSG first raised it, then dropped it. IBM justifiably wants this
issue permanently resolved.
TSG is perfectly disingenuous in filing the claim initially, thus preventing IBM
from needing to file a cross-claim on the issue, then dropping the claim, thus
forcing IBM to file their claim, then complaining that IBM filed the claim
-after- TSG filed suit against AutoZone.
Incredible!
---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney[ Reply to This | # ]
|
- OT - Authored by: alisonken1 on Monday, May 03 2004 @ 07:42 PM EDT
- OT - Authored by: AllParadox on Tuesday, May 04 2004 @ 09:09 AM EDT
| |
| Authored by: Anonymous on Monday, May 03 2004 @ 05:47 PM EDT |
"The only copyright claim SCO has asserted against IBM is primarily for
IBM's continuing use of AIX and Dynix after SCO terminated IBM's UNIX licenses.
See Second Amended Complaint, Count V. The Second Amended Complaint, however,
does not contain a claim against IBM for copyright infringement arising out of
its use, reproduction or improvement of Linux. With SCO's Second Amended
Complaint being the final amendment and not containing a claim for infringement
arising out of IBM's Linux Activities, the need for IBM's Tenth Counterclaim
seeking such a declaratory judgment is nil." SCOG filing
"After the past year's media circus, you have it straight from the horse's
mouth" PJ's comment
I will nitpick PJ to death, and say that this particular horse, assuming that it
was a horse, always seemed to us to be talking out of its behind rather than its
mouth.
The horse in question is acting like a chicken: not just any chicken, but a
chicken which thought it could fly, talked trash to a screaming eagle from the
center of the courtyard, and now seeks to escape the eagle's shadow by flapping
its short wings and hopping to the shelter of the barn as fast as it can.
[ Reply to This | # ]
|
| |
| Authored by: elcorton on Monday, May 03 2004 @ 05:53 PM EDT |
> They do claim in footnote 3 that they are litigating
> against IBM regarding its improvements to Linux, in a claim
> that "arises out of IBM's distribution of AIX and Dynix."
> But if you put that sentence together with the above, you
> see that they are only talking about post-"termination" use
> and distribution of AIX and Dynix. I know. It makes no
> sense.
The contract case is based on the theory that IBM is barred by contract, not
copyright, from contributing anything to Linux that it ever distributed with
AIX or Dynix. It doesn't matter whether AIX or Dynix was infringing SCO's
purported copyrights at the time. So I don't understand what your'e saying
here. This motion doesn't appear to me to narrow the scope of SCO's case
any more than the 2nd amended complaint already did (which was a lot.)[ Reply to This | # ]
|
| |
| Authored by: Dan Lewis on Monday, May 03 2004 @ 05:56 PM EDT |
... do not let your left hand know what your right hand is doing, so that
your giving may be in secret. (Mt. 6.3)
It seems to me like SCO was
trying to play 3-card Monty with these 5 lawsuits (not a good idea). It makes me
wonder if it's the same personnel in the legal firms working on every suit. It
is hard to discern a strategy in this kind of blunder. [ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, May 03 2004 @ 06:00 PM EDT |
What justification did they have then for terminating
IBM's license?[ Reply to This | # ]
|
| |
| Authored by: GLJason on Monday, May 03 2004 @ 06:03 PM EDT |
| They may not be suing IBM yet for thier Linux use in particular, but it
sure looks like they are saying Linux is an unauthorized derivative. They also
say that IBM is a major user of Linux and is basing a large part of their
business on Linux services now. Seeing as SCO has already sued another Linux
end user, I think IBM has the right to defend itself. If nothing else, they
should be able to defent themselves against these claims and get the court to
say that there is nothing in Linux that belongs to SCO, therefore IBM didn't put
anything there. See their second amended
complaint:
3. A variant or clone of UNIX currently exists
in the computer marketplace called “Linux.” Linux is, in material part, based
upon UNIX source code and methods.
4) ... As
such, the Linux 2.4.x and Linux 2.5.x and 2.6.x kernels are unauthorized
derivatives of UNIX System V.
6) c)
incorporating (and inducing, encouraging, and enabling others to incorporate)
SCO’s proprietary software into Linux open source software
offerings.
75) Linux is an operating system variant
or clone of UNIX System V Technology.
79) 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.
97. The only way that the pathway is
an “eight-lane highway” for Linux to achieve the scalability, SMP support,
fail-over capabilities and reliability of UNIX is by the improper extraction,
use, and dissemination of the proprietary and confidential UNIX source
code, derivative works and methods.
110. IBM is
affirmatively taking steps to destroy all value of UNIX by improperly extracting
and using the confidential and proprietary information it acquired from UNIX and
dumping that information into the open source community. As part of this effort,
IBM has heavily invested in the following projects to further eliminate the
viability of UNIX:
a)The Linux Technology Center was launched in
2001 with the intent and foreseeable purpose of transferring and
otherwise disposing of all or part of UNIX, including its derivative
works, modifications and methods, into an open source Linux
environment;
b) The IBM Linux Center of Competency
was launched to assist and train financial services companies in an accelerated
transfer of UNIX to Linux with the advertised intent and foreseeable purpose of
transferring and otherwise disposing of all or part of UNIX, including its
derivative works, modifications and methods into open
source.
c)A carrier-grade Linux project has been
undertaken to use UNIX source code, derivative works, modifications and
methods for the unlawful purpose of transforming Linux into an
enterprise-hardened operating system;
d) A data
center Linux project has been undertaken to use UNIX source code,
derivative works, modifications and methods for the unlawful purpose of
transforming Linux into an enterprise-hardened operating system;
and
109. But for IBM’s coordination of
the development of enterprise Linux, and the misappropriation of UNIX to
accomplish that objective,
122) ... to open source
development of Linux and by using UNIX development methods in making
modifications to Linux 2.4.x kernel and above, which are in material part,
unauthorized derivative works of the Software
Product.
153) ... transferring portions of the
Software Product (including System V source code, modifications,
derivative works and methods based thereon),
155)
... making modifications to Linux 2.4.x kernel and above, which are in material
part, unauthorized derivative works of the Software
Product
184) a) Misappropriation of source
code, methods, trade secrets and confidential information of
plaintiff;
184) e) Contribution of protected source
code ...
[ Reply to This | # ]
|
| |
| Authored by: ChocoNutDancer on Monday, May 03 2004 @ 06:05 PM EDT |
I suspect that SCO will continue with their anti-Linux PR campaign and continue
to claim publicly that IBM put SCO code in Linux. Despite that SCO has dropped
the claim that the GPL is unconstitutional in their lawsuit they continue to
claim it publicly. I fear they will also continue to publicly claim copyright
infringement even though they have now dropped that claim in their lawsuit.
Someone (Novell and/or IBM) needs to sue them to put up or shut up. They
shouldn't be allowed to continue to say these things publicly while at the same
time drop the same claims from their lawsuits.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, May 03 2004 @ 06:10 PM EDT |
| Crusing about the net today, I ran into
this news blurb. Its about Bill Gates and a hugh
$800,000 fine he recently agreed to for violations of investment
rules.
"The agreement settles a Justice Department lawsuit filed Monday
in U.S. District Court in Washington contending Gates should have complied with
investment notification rules because he intended to participate in the
company's business decisions."
I shutter to think of the results to the
public of Gates "participating in business decisions". It would be very
interesting to know just what companies are now subject to this condition. They
would bear close watching.
[ Reply to This | # ]
|
| |
| Authored by: trox on Monday, May 03 2004 @ 06:11 PM EDT |
| Hearing on dismissing or staying count 10...
Judge Kimball: So Mr. Heise
what you're saying is that you have proof that AutoZone has violated your
copyrights and you can prove this in the Nevada courts.
Mr. Heise: Yes we
can your Honor and that is why you should decide in our favor?
Judge
Kimball: Would yor evidence include the same copyright violation in Linux that
you were court ordered to provide information for discovery in the case in my
courtroom?
Mr. Heise: Well your honer we decided it was not important to our
case vs. IBM so we saved it for our case vs. Autozone....
I can just see it
now! :-) [ Reply to This | # ]
|
| |
| Authored by: teknomage1 on Monday, May 03 2004 @ 06:27 PM EDT |
quote:
"Like what? If software companies using open source were forced to
extract code from their products because of an IP violation, 'then people like
us will be extremely carefuly in using open source,' he says. Kagermann
acknowledges his views on open-source and IP are influenced by the fact that SAP
is Europe's largest commercial software company."
First, judging from what has happened so far, there don't appear to be any such
issues, just contract claims against anyone foolhardy enough to enter a
contractual relationship with SCO. Is he predicting an IBM-related pulling out
of code? Second, IP violations occur every day in the proprietary world, judging
by the constant stream of lawsuits they file against each other. To pretend this
is an issue that is Linux-specific is cynical or just wrong, depending on his
motives and level of education. It could just be that his company is well-named.
------------------------------------------------------------
I believe this was more talking about how certain companies producing networking
appliances were not complying with the GPL so were faced with a choice of
releasing their drivers or dropping the GPL'd components in the drivers. [ Reply to This | # ]
|
| |
| Authored by: Jude on Monday, May 03 2004 @ 06:31 PM EDT |
Let's not forget that IBM has Lantham act claims against SCO for
making
false statements in public that were harmful to IBM's
business.
SCO has many times said in public that they had a two-pronged IP
enforcement
effort against Linux. One prong was the alleged IBM contract
issue, and the other
was the alleged "over a million lines" of code that had
been copied from Unix.
Darl describe this quite distinctly (and quite
publicly) during his keynote address at
CdExpo on 2003-11-18. Listen for
yourself: There's No Free Lunch... or
Free Linux
SCO might not have any explicit Linux-related copyright claims
in it's case against IBM,
but IBM sure as heck has them in it's case against
SCO.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 06:32 PM EDT |
To say it clearly, I think you'd have to say: "Please dismiss this
counterclaim, because if IBM wins it, and we think they will, then all our
AutoZone and son of AutoZone end user lawsuits might die. The whole world will
laugh at us, and besides, our case against IBM could blow up. Plus, it would
kill our FUD. If you can't bring yourself to dismiss it, please stay it while we
waste some more time in Nevada, so the real issues won't be litigated anywhere
soon and we can threaten end users a little longer."
I have to
say, I much preferred Groklaw when it started out with serious, objective
analysis of the facts. It's gradually deteriorated into an emotive soapbox. I
would prefer a site that is informative without feeding the frenzy.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 06:38 PM EDT |
SCO says:
The only copyright claim SCO has asserted against IBM is
primarily for IBM's continuing use of AIX and Dynix after
SCO terminated IBM's UNIX licenses
WTF does that mean: "only" and "primarily" are incoherent
in this context. "Primarily" implies a primary and
secondary (and maybe more) assertions; only denies the
same.
These guys are truly morons. [ Reply to This | # ]
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| Authored by: dmscvc123 on Monday, May 03 2004 @ 06:44 PM EDT |
Reading Darl's open letter that was written late last year it's interesting how
much things have changed:
"Since last March The SCO Group (“SCO”) has been involved in an
increasingly rancorous legal controversy over violations of our UNIX
intellectual property contract, and what we assert is the widespread presence of
our copyrighted UNIX code in Linux. These controversies will rage for at least
another 18 months, until our original case comes to trial." (McBride says
the IBM case will settle the dispute over Unix - not AIX - copyrighted code in
Linux)
"At SCO we take the opposite position. SCO believes that copyright and
patent laws adopted by the United States Congress and the European Union are
critical to the further growth and development of the $186 billion global
software industry, and to the technology business in general.
In taking this position SCO has been attacked by the Free Software Foundation,
Red Hat and many software developers who support their efforts to eliminate
software patents and copyrights." (Yet SCO's principled stance against the
GPL hasn't stopped them from distributing Samba)
"Based on the views of the U.S. Congress and the U.S. Supreme Court, we
believe that adoption and use of the GPL by significant parts of the software
industry was a mistake." (I guess SCO doesn't count themselves with both
Samba now and Linux before)
SCO sure makes it sound like they want copyright cases not contract cases when
you read the letter:
http://www.sco.com/copyright/
It's rather laughable how SCO has strained themselves to now say these aren't
copyright cases.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 07:04 PM EDT |
It's funny that the CEO of SAP is stating his views about open source being
possibly unsafe when his company has used it for ages and even supports its own
OS project:
http://www.sapdb.org/[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 07:09 PM EDT |
PJ is always disparaging of SCO's claim that section 2.01 of the license
agreement between AT&T and IBM provides an "easement" (as our dear
friend
Darl put it) into the intellectual property of Linux. In fact it does, in a way.
Merely having the copyright and full title of ownership of code does NOT
necessarily give you the right to publish it. Consider Peter Wright's Spycatcher
novel. In this case someone who wrote a book about confidential security
matters, who had the copyright to the text, was barred at least in some courts
from publishing what he wrote: "The British government claims that ...
whatever the book says, it is all CONFIDENTIAL and should not be published
because Wright had a contractual obligation to his former employers." (The
Observer, June22). It is the same argument here, and one which I believe can
be tried by a court.[ Reply to This | # ]
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| Authored by: WayneStPaul on Monday, May 03 2004 @ 07:10 PM EDT |
| After reading SCO's 2nd Amended Complaint and SCO's recent memorandum it is
clear that SCO is claiming that IBM violated it's copyrights.
From SCO's 2nd
Amended Complaint: (numbers indicate paragraph numbers referenced in SCO's 2nd
Amended Complaint .
- (4)Gave away or disclosed proprietary UNIX
source code and methods
- (7)As a result of these breaches, SCO sent a notice
of termination to Mr. Sam Palmisano....
- (8)The termination notice was based,
in part, on IBM’s self-proclaimed contributions of AIX source code to Linux, and
use of UNIX/AIX methods for accelerating the development of Linux in
contravention of IBM’s contractual obligations to SCO
- (79)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.
I do not understand how they could
expect to pass the laugh test with the statement The only copyright claim SCO
has asserted against IBM is primarily for IBM's continuing use of AIX and Dynix
after SCO terminated IBM's UNIX licenses while para 79 claims copyright
violation by IBM.
Now if SCO really is droping all claims of copyright
violation of IBM placing copyrighted code within Linux, then I expect to see a
request to file a 3rd ammended complaint removing these claims of copyright
violation.
Wayne
IANAL [ Reply to This | # ]
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- Not quite - Authored by: Anonymous on Monday, May 03 2004 @ 09:48 PM EDT
- Not quite - Authored by: Anonymous on Tuesday, May 04 2004 @ 08:23 AM EDT
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| Authored by: s21mag on Monday, May 03 2004 @ 07:14 PM EDT |
Correct me if I'm wrong, but didn't SCOG file this lawsuit prior to
"revoking" IBM's licence, and then when IBM wouldn't play their game
decided to revoke the licence, added the complaint that IBM is still
distributing AIX and now they are removing thier original complaint which was
their basis for revoking the licence in the first place?
---
L. W. Yost
Luck is when preparation meets opportunity.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 07:16 PM EDT |
If I understand this, SCOX asserts that IBM's enhancements to Linux are derived
from software that is controlled by a liscense between AT&T and IBM. They
further assert that this liscense restricts IBM from making IBM's enhancements
public through some kind of notion of drivative works independent of copyright.
SCOX then claims themselves to be the successor's of interest in the above
liscense. Assuming that this is really the nature of SCOX's suit my question is
what has to happen for SCOX to win?
At a bear minimum I think they have to convince the judge that:
1. They are the party that can enforce the liscense and their right cannot be
waived by Novell.
2. The liscense restricts IBM from making derived works public.
3. There is sufficient evidence to expect that a jury might be able to see that
IBM did make derived works public.
Item number 1 is not even straight forward but probably the least of SCOX's
worries. In order to accomplish item 2 SCOX must reveal what they mean by
derived works and be able show where in the liscense the criteria for being a
derived work is spelled out beyond the usual definition. Furthermore, they must
show how the requirement on derivative works applies under the $Echo newsletter
explanation or show how that explanation does not apply. It's hard to see
exactly how they accomplish item 3 until item 2 is answered, but it seems like
it will involve "nonliteral copying" and something about sequence,
organization, and whatever.
My own personal feeling is that SCOX cannot accomplish any of these steps toward
making their case, even to the extent that if we grant SCOX a large leeway on
item 2 they still cannot have enough evidence to accomplish item 3. There
appears to be no evidence of SYSV code in Linux so SCOX will have to be able to
show how they can distinguish the "nonliteral" copying that is bad
from innocent similarity. Then they have to demonstrate that there are
sufficient examples of "nonliteral" copies to show there is a
nontrivial offense.
If this ever actually goes to trial, SCOX then has to explain all of this to a
jury. In some earlier articles there was some speculation from Enderle that SCOX
was going to rely on a technically illiterate jury to make all of this work, but
how can that be? The jury is going to have to follow all of the mumbo jumbo and
"expert testimony" about how code that is not the same is somehow
derived from SCOX's code. The answer seems to be that SCOX will try to make this
an emotional issue for the jury of the little guy being wronged by the big
bully.
The summary to all of this is that SCOX appears to be banking on a complete
break down of the legal system.
Bill Collier
IANAL (obviously)[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 07:34 PM EDT |
I read this as saying that SCO is losing against IBM . So they want the judge
let them settle a complex computer code/programing case against an auto parts
company.
SticK[ Reply to This | # ]
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| Authored by: Sparkchaser on Monday, May 03 2004 @ 08:14 PM EDT |
As SCO is claiming the case is not about SCO IP in Linux, and (in newspeak)
never was...
What, exactly, is SCO attempting to license in it's SCOSource charade?
---
If at first you don't succeed, read the directions.
If that doesn't work, blame somebody[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 09:03 PM EDT |
I wonder when IBM is going to submit its memo concerning how SCO responded to
the discovery orders. It has been several weeks now. Maybe SCO dropped
everything on IBM the last day, and it was a ton of materials, and so it is
taking IBM a long time to sort through it. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 09:18 PM EDT |
| When is the next court date? [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 09:23 PM EDT |
"SCO's memo in support of its motion to compel:"
"It is undisputed that IBM created derivative works and modifications of
UNIX System V known in the industry as "AIX". Plaintiff [ed:SCO]
contends that IBM failed to treat AIX as required under the Software Agreement
by, among other things, contributing source code and confidential methods for
developing UNIX / AIX to Linux. This is a central issue in the case"
(See bottom of page 4)
"MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR TO STAY COUNT TEN OF
PLAINTIFF IBM'S SECOND AMENDED COUNTER-
CLAIMS AGAINST SCO":
"The Second Amended Complaint, however, does not contain a claim against
IBM for copyright infringement arising out of its use, reproduction or
improvement of Linux.
... In fact, the issue of the impropriety of IBM's improvements to Linux is part
of the basis for IBM's Ninth Counterclaim, also titled "Declaratory
Judgment of Noninfringement of Copyrights," which arises out of IBM's
distribution of AIX and Dynix. (¶ 165). SCO did not move to dismiss or stay that
count. "
Do those SCOundrels realize that the same judge has possession of both pieces of
paper???
AdultSupervision (not logged in)[ Reply to This | # ]
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| Authored by: dmscvc123 on Monday, May 03 2004 @ 09:30 PM EDT |
Reading what the copyright office has to say about derivative works, I don't see
how SCO could assert a derivative works claim on Linux based on IBM's own work
on Unix.
http://www.copyright.gov/circs/circ14.pdf
I can see how SCO can make a [bad] case of AIX being an unauthorized derivative
work since SCO cancelled the Unix license (SCO tried to cancel it anyway), but I
don't see how SCO can claim a derivative work of IBM's as their own - especially
with SCO not disputing that IBM owns the copyrighted works in which derivative
is based on.
I guess an upside to this should a snowball survive hell and SCO win would that
IBM could then claim ownership of Microsoft's OS since Microsoft and IBM joint
ventured on OS/2 and then Windows came after that. However, to paraphrase Martha
Stewart, SCO will not be exonerated of ridiculousness.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 09:52 PM EDT |
TSG has failed to comply with at two court orders, even after numerous
time extensions, to identify with specificity the files and lines of SVRx
source code in Linux.
Now, TSG is covering up their failure. Lets hope the judge remembers and
sees fit to punish TSG. Lets hope Redhat informs the judge in their suit.
Given the chance in front of a jury TSG will constantly parade all their public
statements before the jury.[ Reply to This | # ]
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| Authored by: bsm2003 on Monday, May 03 2004 @ 09:52 PM EDT |
| Remember folk's SCO still cant show proof that they have a contract from Old
SCO->Cladera->New SCO. Therefore No contract No right to
enforce the contract. [ Reply to This | # ]
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| Authored by: blacklight on Monday, May 03 2004 @ 10:20 PM EDT |
Let's not be too hard on each other:
(1)I am an Ivy Leaguer, so the expectation is that I can read and write.
However, once in a while, I screw up on my typing. It's probably typical, but I
have an easier time catching someone else's mispellings than my own even though
both of us may be mispelling the same word in the same way.
(2) Many members of the groklaw community do not speak English at home, and in
fact their home is not in this country. Although highly intelligent and
educated, they will make mistakes that are obvious to us. As long as what they
say is loud and clear, let's live and let live.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 10:21 PM EDT |
MAKING A MOUNTAIN OUT OF A MOLEHILL: The SCO Linux
scam.
My submission for a title.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 03 2004 @ 11:29 PM EDT |
Not sure how....but if Bush can come crying to Martin for help now, well,
anything's possible.[ Reply to This | # ]
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| Authored by: kawabago on Monday, May 03 2004 @ 11:38 PM EDT |
The gig is up, the cards are on the table and they're all jokers. Watch SCO
execs and Canopy Group for insider trading because there's no value left in the
company, they might as well get out rich!
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 04 2004 @ 01:00 AM EDT |
Okay we've got a couple of times of SCO threatening copyright claims against
IBM, that everybody is talking about:
1. Kevin McBride's performance on December 5th
2. In the press, Darl's claims (particularly but not only in Summer 2003) that
IBM has misappropriated SCO code.
3. The running theme of misappropration in SCO's complaint.
Please however let us remember there is another example, of the same threats,
which has already been presented to this very court.
Go back to the IBM's (1st?) motion to Compel Discovery.
IBM points at SCO forum in their initial brief.
SCO replies it's (a) partly about SGI, (b) it's not about the current case, but
about a possible copyright case
IBM in their reply brief in support of their motion, say, well it might be
partially about SGI, but why are IBM employees, IBM-related agreements, and
IBM-related components (JFS etc) cited in the presentation?
So here we have SCO telling the court, they are giving public presentations
about a future possible copyright case, which based on the content, must be
aimed in part at IBM.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 04 2004 @ 02:11 AM EDT |
> After the past year's media circus, you have it straight from the horse's
mouth. The only copyright infringement claim they assert against IBM is for
using and distributing AIX and Dynix after SCO "terminated" IBM's
license, a termination that Novell told us they overruled. That's it, folks.
What does that tell you?
Not only that, but the grounds for "termination" of the licence were
supposed disclosures of trade secrets and contract violations. Get my point? In
order for the termination to be based on something, they have to _win_ this
lawsuit. My $20 says it'll never happen.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 04 2004 @ 05:36 AM EDT |
Oracle actually does like linux and are partnering with Dell in this, So I
figure Dell is there with SAP to soften them...[ Reply to This | # ]
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| Authored by: prayforwind on Tuesday, May 04 2004 @ 08:31 AM EDT |
May I suggest we use the verb "plagiarize" rather than
"steal" to describe the act of improperly using someone else's code?
"Who stole my code?" implies theft... as in it was taken away from me.
http://www.gnu.org/philosophy/words-to-avoid.html
---
jabber me: prayforwind@jabber.org[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 04 2004 @ 09:20 AM EDT |
I just found "Ransom Love, Co-founder of Caldera and SCO, Speaks of Unix,
GPL and the Lawsuit. eweek.com, Sept. ... SCO CEO Posts Open Letter to the Open
Source Community. ..." with a google search on 'sco"
I links to a http://sco.iwethey.org/ site. What's the drift of this site?
ken k[ Reply to This | # ]
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| Authored by: aaron_tx on Tuesday, May 04 2004 @ 10:01 AM EDT |
Help me out here people,
In the article titled "DaimlerChrysler's Motion, Memorandum, and Exhibits -
as text", there is a discussion about the M$ Word document meta data taken
from the Daimler Chrysler complaint, including the following text:
At the time of acquiring the BA UNIX/AIX License, Defendant knew or should have
known: (a) that IBM’s license to distribute UNIX/AIX had been terminated by SCO
pursuant to the UNIX/AIX Termination Notice and (b) that IBM’s distribution to
it of UNIX/AIX software improperly included use of the UNIX Release 3.2
Copyrighted Materials
How can IBM have breached their UNIX license by contributing AIX code based on
SysV UNIX (purportedly owned by SCOG) to Linux when SCO admits that AIX is a
deriviative of UNIX 3.2? Wasn't UNIX 3.2 released under a modified BSD or
public domain license in the latenineties? Even if IBM violated the terms of
the 3.2 license how can SCOG claim in different cases that AIX is derived from
two different UNIX codebases? Am I missing something (confusing UNIX R3.2 with
32v)?
Thanks[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 04 2004 @ 10:38 AM EDT |
SCO should have sued the millions of Tivo and embedded cell phone users, who
have never heard of SCO or linux. For individuals the 700 dollar, single cpu
license is a bargian compared to the legal costs. The amount of revenue
generated would make any settlement with IBM look like chump change.
_____________________________
First there was even, then there was Darl McBride.[ Reply to This | # ]
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| Authored by: wvhillbilly on Tuesday, May 04 2004 @ 11:44 AM EDT |
>>"Now, SCO is back-pedalling, because it's time to put up or shut up
in court in the IBM case."<<
Speaking of put up or shut up, what ever happened to the allegedly infringing
code SCO was supposed to cough up a couple of weeks ago in the IBM case? I've
heard nothing on that.
And can the judge subpoena Bleep's "magic suitcase", or was that just
more SCO smoke and mirrors?
---
What goes around comes around, and it grows as it goes.[ Reply to This | # ]
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| Authored by: Vaino Vaher on Tuesday, May 04 2004 @ 12:10 PM EDT |
This article was posted two days ago. That only goes to show how slowly I think
these days!
Now to my point:
SCO was to produce the infringing code by April 19. If there is no copyright
infringment involved (except for after the alleged termination of the
contracts), then what code were they ordered to produce!?
The judge can't possibly fail to notice this.
SCO: "Here are the millions of lines of code that we were reqiested to
produce".
Judge: "What are they a proof of? What do they show?"
SCO: "Nothing. We don't have any claims of copyright infringement in this
case, and we never really had."
Judge: "So why have you submitted all this material?"
SCO: "Because you ordered us, Your Honor."[ Reply to This | # ]
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| Authored by: codswallop on Tuesday, May 04 2004 @ 12:43 PM EDT |
The license agreements are contracts that grant licenses and also have other
contractual obligations. Some of these obligations would be likely to be
considered abuse of copyright if they were part of a license, so they have to be
considered either invalid or purely contractual.
The question is, can you cancel a license for violating a contractual term that
couldn't legally be part of a license. My guess is not. If you could, then abuse
of copyright could always be circumvented contractually, which goes against the
purpose of copyright law.
Imagine that I gave you a patent license that said you would have to pay me
royalties for 5 years after the patent expired. This has been held to be abuse
of patent, becauase it is an attempt to circumvent the term of the patent, which
is a fundamental part of patent law. If I tried to do this contractually in
concert with a valid license, the effect would be the same, and I'm reasonably
sure the contract would be unenforceable.
I believe SCO's claims would be held to be unenforceable, even if their reading
of the contract was correct. They are abuse of copyright. I think this is where
IBM is going with it's 10th defense. Seeing that this is one of SCO's defenses
to GPL violation, the irony is lovely.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 04 2004 @ 08:20 PM EDT |
I think/hope IBM will introduce as evidence Darl's letter to Congress. It
clearly says Linux contains UNIX code owned by TSCOG(or SCO, as they like to
call themselves). It further claims that GPL puts code in the "public
domain". It also says the GPL violates the US Constitution.
I hope IBM quotes Eben Moglen,"Your honor, make them stop."
and further, order them to issue a public statement rescinding their
allegations, and send copies to the same mailing list.
This would be a start at repairing the damage done to the GPL and Open Source.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, May 04 2004 @ 10:38 PM EDT |
SCO
announces first round of layoffs
Unfortunately, Darl wasn't on the
list. Not this time, anyway.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, May 05 2004 @ 08:13 AM EDT |
What's the shocking news here, does this mean SCO is toast?
Could someone explain in laymans terms why this is so important to the lawsuit.
Also, it seems to get Linux out of trouble, but what about the connection with
the other lawsuits and the GPL?[ Reply to This | # ]
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| Authored by: Michael57 on Wednesday, May 19 2004 @ 02:47 PM EDT |
Your sidestory on SAP and DELL made me look into the support of Linux or other
OS besides of Windows.
As I am a German citizen I tried the German website of Dell and there I choose
to configure a desktop with Linux. They didn't offer this path. In searchmode I
found 2 Suse Linux versions to buy separately (a corporate licence and a private
one).
I mailed them a question if an Linux desktop could be configured.
As one of the leading hardware vendors of the world, I thought it to be worth
knowing how much they are willing to bend towards their first obligation (their
customers of course).
I'll keep you informed about their answers.
As this is my first post, I would like to thank pj and all supporters for their
excellent work.
I was awakened to this when Mydoom hit the world. I am reading this websites
backlog since Baystar first asked it's money back. I am just getting up-to-date
(without taking all the comments). This website is a dinosaur of information
that can be groked by people outside of the law-business and outside of
computing or outside of US too.
Please, continue![ Reply to This | # ]
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