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| IBM'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS CLAIM FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT -- as text |
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Friday, May 21 2004 @ 10:08 AM EDT
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Here is IBM'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS CLAIM FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT at text, once again thanks to Henrik Grouleff.
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SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
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THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
Defendant/Counterclaim-Plaintiff
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DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S CROSS-MOTION FOR
PARTIAL SUMMARY JUDGMENT ON ITS
CLAIM FOR DECLARATORY JUDGMENT
OF NON-INFRINGEMENT
(ORAL ARGUMENT REQUESTED)
Civil No. 2:03CV-0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
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Pursuant to DUCivR 56-1(a) and Federal Rules of Civil Procedure 56 and 37(b)(2), Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this cross-motion for partial summary judgment on its claim against Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") for a declaration of non-infringement with respect to IBM's Linux activities (the "Tenth Counterclaim"). IBM is entitled to relief as a matter of law on this claim for the following reasons:
1. SCO claims to hold copyrights to certain UNIX software, which give it the right to control IBM's use of and contributions to Linux, a computer operating system which was pioneered in 1991 by an undergraduate student named Linus Torvalds and has since been continuously developed over the Internet by thousands of programmers worldwide. SCO refuses, however, to disclose its purported evidence that IBM's Linux activities infringe SCO's alleged copyrights, despite two court orders requiring it to do so.
2. IBM asked SCO (more than seven months ago) to identify the precise lines of Linux code in which it claims rights, and the precise lines of code in the UNIX software from which SCO alleges such Linux code is copied or derives. Unless SCO can match up the lines of code in Linux to which it claims rights to the precise lines of code in the UNIX software over which SCO claims copyright protection, SCO cannot show copyright infringement.
3. Based upon SCO's failure to come forth with evidence to demonstrate infringement, summary judgment should be entered in favor of IBM on its claim that IBM's Linux activities do not infringe SCO's alleged copyrights relating to UNIX. After more than a year of litigation, two orders to compel and two affidavits from SCO certifying that it has provided complete responses to IBM's interrogatories, SCO admits - by its silence and failure to provide evidence - that IBM's Linux activities do not infringe SCO's alleged copyrights.
Although SCO has identified certain materials in Linux to which it claims rights (albeit without the required specificity), SCO fails altogether to show how IBM's Linux activities infringe SCO's alleged copyrights concerning the UNIX software.
4. Additional discovery is unnecessary here. SCO has had access to all of the information necessary to determine whether and how IBM's Linux activities infringe its purported copyrights from the outset of this case - the source code to which SCO purports to hold copyrights on the one hand and the publicly available source code for Linux on the other - and yet is unable to proffer any evidence of copyright infringement. Indeed, given SCO's repeated failure to comply with the Court's orders, the fact of IBM's non-infringement should simply be established against SCO, and SCO should not be allowed to adduce evidence on this issue under Rule 37(b)(2).
IBM requests oral argument on its cross-motion for partial summary judgment, and further requests that such argument be heard at the same time as argument on SCO's motion to dismiss or stay the same claim. This motion is further supported by the memorandum of points and authorities and the declarations of Daniel Frye and Todd Shaughnessy, filed and served herewith, and by such argument as shall be presented at hearing.
DATED this 18th day of May, 2004.
SNELL & WILMER L.L.P.
[signature]
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
Of counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
CERTIFICATE OF SERVICE
I hereby certify that on the 18h day of May, 2004, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Kevin P. McBride
[address]
___[signed]___
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| Authored by: JeR on Friday, May 21 2004 @ 10:20 AM EDT |
| [no content] [ Reply to This | # ]
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| Authored by: Jude on Friday, May 21 2004 @ 10:51 AM EDT |
...the second and concluding part of the thrilling
drama "Put Up, or Shut Up".
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 21 2004 @ 11:05 AM EDT |
Show me the beef seams to be the subject here. I doubt SCO even knows what to do
next except to ask for a nother delay to look in Blep's briefcase.
Whatever. I grow frustrated with the court system here now. You have ask 3
times, and order them twice, to produce the proof. How much is enough? The Judge
needs to stop this little con game.[ Reply to This | # ]
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| Authored by: bsm2003 on Friday, May 21 2004 @ 11:14 AM EDT |
| For PJ [ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 21 2004 @ 11:14 AM EDT |
I expect that SCO will reply by trying to change the subject. They will ask
that other pending motions be heard first. Or they will introduce new motions
on unrelated topics to try to take the trial in a different direction.
------------------
Steve Stites
[ Reply to This | # ]
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| Authored by: PolR on Friday, May 21 2004 @ 11:39 AM EDT |
| Link URLs as links please [ Reply to This | # ]
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| Authored by: MikeA on Friday, May 21 2004 @ 12:05 PM EDT |
| "SCO claims to hold copyrights to certain UNIX software, which give it the
right to control IBM's use of and contributions to Linux, a computer
operating system which was pioneered in 1991 by an undergraduate student named
Linus Torvalds and has since been continuously developed over the Internet by
thousands of programmers worldwide."
Is it just me, or does this
statement seem like a deliberate counter-FUD to recent statements being made in
the press? [I just woke up 7 minutes ago, and have not had coffee yet, so I may
still be dreaming.] I don't remember ever seeing IBM describe Linux in this
fashion before.
Would SCO be required to respond to this statement in a "We
agree...", "We Dispute..." or "We are without fact sufficient to... etc."
kind-of-way? Any bets on what they would say?
---
Change is merely the
opportunity for improvement. [ Reply to This | # ]
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| Authored by: Thomas Frayne on Friday, May 21 2004 @ 12:20 PM EDT |
In its memorandum in support of the summary judgment motion, p. 32, IBM asked
for sanctions against SCOG for failure to obey court orders in discovery. IBM
quoted parts of Fed. R. Civ. P. 37(b)(2) that provide examples of possible
sanctions, which I summarize:
(A) Order to take facts as established;
(B) Order to prohibit arguments on claims, defenses, or evidence;
(C) Order to strike out pleadings, stay procedings, or dismiss the action.
IBM, while not moving for dismissal of any of SCOG's claims, has given Judge
Kimball a reason to dismiss any of them desired.
[ Reply to This | # ]
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| Authored by: bsm2003 on Friday, May 21 2004 @ 02:11 PM EDT |
| $5 says that disc might be over with period after this. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 21 2004 @ 03:03 PM EDT |
From a quote just posted (etc):
"We are quite confident that the false testimony will have no impact on the
convictions of Martha Stewart and Peter Bacanovic,"
wow, its like deja vu... its like SCO saying: "We are quite confident the
false statements will have no impact on the motions filed against IBM"...
sorry I just died laughing over this one...[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 21 2004 @ 04:01 PM EDT |
Here;
Wh
at prompted me to write this note today is an email I got yesterday. Actually, I
got quite a few :-) , most of them thanking me for the historical material.
One of yesterday's emails was from Linus, in response to an email from me
apologizing for not letting him see my statement in advance. As a matter of
courtesy, I did try but I was using his old transmeta.com address and didn't
know his new one until I got a very kind email from Linus' father, a Finnish
journalist.
In his email, Linus said that Brown never contacted him.
No email, no phone call, no personal interview. Nothing. Considering the fact
that Brown was
writing an explosive book in which he accused Linus of not
being the author of Linux, you would think a serious author would at least
confront the subject
with the accusation and give him a chance to respond.
What kind of a reporter talks to people on the periphery of the subject but
fails to talk to the main
player?
Why did Brown fly all the way to
Europe to interview me and (and according to an email I got from his seat-mate
on the plane) one other person in
Scandinavia, at considerable expense, and
not at least call Linus? Even if he made a really bad choice of phone company,
how much could that cost?
Maybe a dollar? I call the U.S. all the time from
Amsterdam. It is less than 5 cents a minute. How much could it cost to call
California from D.C.?
From reading all the comments posted yesterday,
I am now beginning to get the picture. Apparently a lot of people (still) think
that I 'hate' Linus for
stealing all my glory (see below for more on this). I
didn't realize this view was so widespread. I now suspect that Brown believed
this, too, and thought that
I would be happy to dump all over Linus to get
'revenge.' By flying to Amsterdam he thought he could dig up dirt on Linus and
get me to speak evil of him.
He thought I would back up his crazy claim that
Linus stole Linux from me. Brown was wrong on two counts. First, I bear no
'grudge' against Linus at all.
He wrote Linux himself and deserves the credit.
Second, I am really not a mean person. Even if I were still angry with him after
all these years, I wouldn't
choose some sleazy author with a hidden agenda as
my vehicle. My home page gets 2500 hits a week. If I had something to say, I
could put it there.
The Internet is really changing
things, notice that Tenenbaum got an email from Brown's seat-mate on the
plane, with the Internet witnesses can pop up out of the woodwork, and be
heard. [ Reply to This | # ]
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| Authored by: marbux on Friday, May 21 2004 @ 05:09 PM EDT |
Some folks might appreciate an outside legal perspective on where things stand
and the likely SCO response. I stress that I have no crystal ball, and there are
certainly other credible evaluations of the situation that can be made.
IBM has filed what is known as a motion for partial summary judgment. What is
fairly unusual, and tactically brilliant, is the combination of that motion with
an argument for foreclosure of factual defenses pursuant to discovery rule
37(b)(2), which provides for various sanctions when parties fail to obey
discovery orders by the court.
IBM's primary basis for partial summary judgment is the "statement of
undisputed facts" appearing at pp. 7-23 of its supporting memorandum. Those
allegedly undisputed facts are supported by affidavits and other evidence. This
puts SCO in the posture that it must respond either, (i) pursuant to Fed. R.
Civ. P. 56(c), with a "statement of material facts genuinely in
dispute" supported by affidavits and evidence that would be admissible at
trial; or (ii) pursuant to Fed. R. Civ. P. 56(f) with affidavits establishing
why further discovery is necessary before the court should rule on the partial
summary judgment, detailing what further discovery is needed and why it's likely
that the requested discovery would show a genuine dispute over material facts.
Expect SCO to pursue both tactics in its response. SCO's response will probably
rely most heavily on why further discovery is necessary, along with attacks on
the adequacy of IBM's discovery responses to date. Federal judges tend to
disfavor motions for summary judgment before the end of the period set for
discovery, particularly in important cases.
However, IBM has undercut that policy of delaying rulings on summary judgment
motions by its alternative argument that SCO's factual defenses should be
foreclosed because of failure to comply with two discovery orders aimed at the
heart of SCO's copyright claims. In other words, this is IBM arguing that
further discovery would be useless, because SCO won't comply with discovery
orders.
Because of the discovery sanctions argument, it's highly unlikely that SCO will
be gutsy enough to hang everything on Rule 56(f) affidavits seeking delay for
further discovery. The IBM motion puts SCO in the position of needing to be
certain that its discovery responses are unquestionably in order by the time the
judge hears arguments on IBM's motion. And the IBM motion also gives SCO an
enormous incentive to actually show that there remain material factual issues
that must be determined at trial. I.e., SCO must file a statement of material
facts genuinely in dispute, detailing its evidence, as well as alternatively
seeking further discovery delays under Rule 56(f).
The SCO showing of material facts genuinely in dispute must show, for each
individual fact listed by IBM, that either the "fact" is (i)
immaterial to the legal issues, or (ii) contradicted by countering admissible
evidence exhibited to SCO's response, thus creating a genuine dispute that must
be resolved at trial rather than by summary judgment.
This all makes its motion tactics a win-win move for IBM. SCO must finally show
its hand to avoid the looming danger of its copyright claims being dismissed.
And even to obtain time for further discovery, SCO must detail its discovery
strategy, specifying what it wants in the way of further discovery and its bases
for believing that the evidence exists. SCO must also, as a practical matter,
drastically narrow the scope of the remaining discovery it seeks so it doesn't
appear to be just greedy or harrassing. And, IBM gets a roadmap of SCO's
offensive discovery strategy (Rule 56(f)), as well as SCO's theory of the case
and its key supporting evidence (Rule 56(c)).
Regarding discovery sanctions, courts do not ordinarily impose those that end a
case without first issuing a warning and a chance to cure discovery behavior.
Indeed, district judges will ordinarily be reversed if they impose the ultimate
discovery sanction of default judgment without warning. So hopes shouldn't raise
too high that this motion marks the end of the case. Note that the judge also
has discretion to just blow off IBM's motion and tell it to refile its motion
after discovery has closed.
One rather intriguing procedural aspect of IBM's strategy is that IBM is in
effect obtaining Judge Kimball's oversight of the Magistrate Judge's discovery
rulings without IBM appealing one of the MJ's orders, possibly leaving the door
open for IBM later to refile for discovery sanctions with the MJ, then appeal
any denial to Judge Kimball.
All in all, the motion tactic is very low risk for IBM. Its lawyers clearly have
a discovery problem involving core issues of the case that hasn't been cured by
two prior court orders. So I don't think IBM can lose any points with the Judge
by coming forward with this motion. And I suspect that the judge will be
inclined to do something effective about SCO's discovery gridlock, even if he
doesn't enter summary judgment. It's fairly likely that Judge Kimball will give
SCO one more chance at a discovery response, accompanied by a warning that
foreclosure of factual defenses will be ordered as discovery sanctions.
(It should be noted, for better understanding by laypersons, that the discovery
rules are intended to stimulate lawyers to resolve discovery disputes
cooperatively, without seeking the intervention of the court. The rules provide
that ordinarily, the party who loses a discovery motion will be ordered to pay
the other side's attorney fees and other expenses of the discovery motion absent
"unusual circumstances." Although lawyers commonly do not seek such
awards, undoubtedly because they realize it may be their necks on the chopping
block the next time, courts not infrequently impose such fee awards on their own
volition. Judges generally realize that one of the best ways to keep from
getting involved in discovery disputes is to whack parties financially for
putting forth unreasonable positions. So it wouldn't be suprising, if Judge
Kimball treats IBM's motion papers as a further motion to compel, to see an
award of IBM's motion fees and expenses.)
Since the motion papers heavily involve the Magistrate Judge's discovery orders,
it's not unlikely that Judge Kimball will refer the motion for partial summary
judgment to the magistrate judge for a recommendation. If Judge Kimball follows
this procedure, the parties will be allowed, as I recall, 10 days in which to
comment on the recommendation before Judge Kimball takes it under advisement. He
might or might not have a further hearing. Commonly, when judges submit issues
to a magistrate for a recommendation, the hearing is held before the magistrate
judge and the judge reviews the transcript of that hearing rather than holding a
second hearing.
In summary, IBM has put forth two theories under which the Court could enter
summary judgment on the copyright issues, either that SCO can't show a genuine
dispute over a material fact, or that SCO's factual and legal defenses on the
copyright issues should be foreclosed as discovery sanctions. IBM also has put
enormous pressure on SCO to identify its evidence quickly with sufficient
specificity to withstand summary judgment. Finally, IBM has made a compelling
argument for Judge Kimball's direct intervention in the discovery dispute.
As a final note, it's always refreshing to come across motion papers prepared by
someone who really understands rules of civil procedure. Far too many law
students allow their eyes and ears to glaze over in Civil Procedure class, not
truly grasping that over 90 per cent of cases are decided on procedural grounds.
In my experience, over 90 per cent of the lawyers I litigated against didn't
fully understand discovery procedures or their underlying policies. There may be
some correlation between those statistics. IBM's instant motion papers are
outstanding.
[ Reply to This | # ]
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- IBM's strategy in motion papers--importance of procedural rules - Authored by: Anonymous on Friday, May 21 2004 @ 06:00 PM EDT
- IBM's strategy in motion papers--importance of procedural rules - Authored by: Anonymous on Friday, May 21 2004 @ 06:10 PM EDT
- Thankyou (NT) - Authored by: Anonymous on Friday, May 21 2004 @ 06:15 PM EDT
- Thankyou (NT) - Authored by: Anonymous on Friday, May 21 2004 @ 09:42 PM EDT
- Heh - Authored by: Anonymous on Wednesday, May 26 2004 @ 05:56 PM EDT
- Heh - Authored by: Anonymous on Wednesday, May 26 2004 @ 07:02 PM EDT
- My, My, - Authored by: Imnot on Friday, May 21 2004 @ 07:40 PM EDT
- It's a toss up who's better, IBM or your explanation - Authored by: tangomike on Friday, May 21 2004 @ 08:24 PM EDT
- Excellent Analysis - Authored by: nealywilly on Friday, May 21 2004 @ 08:28 PM EDT
- IBM's strategy in motion papers--importance of procedural rules - Authored by: belzecue on Friday, May 21 2004 @ 09:10 PM EDT
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| Authored by: Anonymous on Friday, May 21 2004 @ 08:37 PM EDT |
From: http://biz.yahoo.com/cc/1/43141.html
The SCO Group Extends Invitation to Join Its Second Quarter 2004 Financial
Results Conference Call
WHAT: The SCO Group, Inc. Second Quarter 2004 Financial Results Conference
Call
WHEN: Wednesday, June 2, 2004, 9:00 a.m. (Mountain Daylight Time), or 11:00
a.m. (Eastern Time).
HOW: If you would like to participate in the live call you may dial
800-289-0518 or 913-981-5532; confirmation code: 431766. You may also join the
call in listen-only mode via Web cast. The URL is listed at
http://ir.sco.com/medialist.cfm.
Copyright © 2004 Yahoo! Inc. (just in case)
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