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SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Wednesday, August 25 2004 @ 01:17 AM EDT

Here is SCO's Reply Memorandum in Support of SCO's Motion to Dismiss or Stay Count Ten of IBM's Second Amended Counterclaims. I have only had time to glance through it, but I'd characterize it as SCO saying, "No fair! IBM is winning." Or, more accurately, they are singing, "Stop the World. I Want to Get Off." They so do not want to have to talk about copyright infringement with IBM inside a courtroom.

All that trash talk in the press about IBM and copyright infringement has nothing to do with this case. They can't imagine why IBM wishes to bring it up at all. Why, SCO isn't talking about that. In the courtroom, it's all about contracts, so IBM should not be allowed to bring in unrelated issues, like what SCO has accused them of for over a year in the media. It would just complicate things horribly if SCO would have to answer such a counterclaim. It's much too complex, they say, and they'd have to do discovery and stuff too, which they haven't yet begun, with regard to depositions, because they are waiting for IBM to turn over the documents IBM has already told them don't exist, and you know what that means, Your Honor.

Yup. SCO will need more time for discovery.

  


SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor | 379 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic Here Please
Authored by: smoats3D on Wednesday, August 25 2004 @ 01:38 AM EDT
For all the latest news, weather, sports, whatever...

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:39 AM EDT
They are about to discover that it is all over for them.

[ Reply to This | # ]

SCO has a small point
Authored by: rsteinmetz70112 on Wednesday, August 25 2004 @ 01:40 AM EDT
SCOG makes the point that IBM wants a declaratory judgment that none of it Linux
activities infringe SCOG's copyrights.

IBM seems to be saying that this simply means that IBM's copying of the kernel
does not infringe.

SCOG seems to be saying that IBM might be engaged in copying SCOG's property
somewhere else in IBM's vast Linux conspiracy.

Not sure what they might be doing, but I always found SCO's Xenix manuals very
well organized and helpful for many other *nixes.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

If it's only about contracts...
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:48 AM EDT
then IBM's request for partial summary judgment on the contracts should be
the end of SCO. But it's not. Looming in the horizon are IBM's patent
counterclaims. Heh heh heh.

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: blacklight on Wednesday, August 25 2004 @ 02:04 AM EDT
As of now, SCOG is two reply memos behind. I am not sure how terminally
convincing in a court of law an argument of the type "they fought back -
the bastards!" is, which is exactly the type of argument that SCOG is
making. SCOG is definitely confessing that it has zero proof of copyrights
infringement not just by IBM but by anyone, given that that SCOG is asserting
that is has to do a discovery run on everyone, his brother, his dog and his pet
rock. My attitude is that the more sweeping, unrealistic and shrill
SCOG'sdemands for discovery, the less credible SCOG's case is and more
importantly, the more the judge is enclined to believe that there is nothing to
be gained by acceeding to these demands for discovery.

I doubt that the judge will acceed to a demand that CC10 be dismissed, ass IBM
has rightly asserted that it is compulsory on IBM to make CC10. Staying CC10
will work about as long as Novell's motion for dismissal goes through
successfully or failing that, about as long as it takes for the PSJ on contract
violations to go through - which should take only a matter of weeks. The good
news for SCOG is that SCOG still has options - the bad news is that all of these
options are bad for SCOG and turning worse.

[ Reply to This | # ]

Computerworld article
Authored by: Anonymous on Wednesday, August 25 2004 @ 02:07 AM EDT
SCO raises issues with this Computerworld interview about AIX's origins from Unix. (QuickLi nk# 42279)

First, their footnote claims:

Footnote 1: Steve Mills, an IBM senior vice president and group executive who runs the company's software business, recently acknowledged that "we needed an operating system. Arguably we could have literally written one from scratch. We took the Unix System V kernel and we made modifications, the same as everybody did in the eighties." IBM's Mills sets sights on middleware, Linux, http://www.computerworld.com/printthis/ 2003/0,4814,86443,00.html, 10/27/03 (Exh.1).
Yet, the quote in question doesn't seem to actually appear on this webpage (or does it? I see little about Unix System V and nothing about the eighties)

But second, is this relevant information? It was a puff piece sort of interview rather than a deposition about AIX's origins, and IBM has already pointed out in it's argument that such articles aren't admissable. Information from someone in IBM stated in a deposition that says basically "we stole from Unix" would be a big blow. But could this sort of casual business chit chat raise enough of a doubt that SCO hasn't had all of the discovery it should?

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anonymous on Wednesday, August 25 2004 @ 02:12 AM EDT
My company outsourced to IBM and I keep telling our cantract tea, that IBM is
not to be trifeled(sp) with. Maybe now they will believe me!

[ Reply to This | # ]

Computerworld article
Authored by: Anonymous on Wednesday, August 25 2004 @ 02:32 AM EDT
Note: I am reposting this at the top level, because I think it is important to debunk the assertions that SCO made in the Footnote 1.

Interestingly enough the computerworld article mentioned above, does NOT have that quote. But this link does: here

From the article:

How would you characterize your operating system business in general, and AIX in particular? The operating system business, which is a multi-billion-dollar business for us, in recent years has essentially been a flat business. AIX has been a flat business. We're supporting Linux on the pSeries today, and I think we'll see more and more customers over time decide to run the pSeries with Linux.

But no one's ever made any money in Unix operating systems. Unix has always been an enabler of the hardware platform. We went into the RISC hardware business, and we needed an operating system. Arguably we could have literally written one from scratch. We took the Unix System V kernel and we made modifications, the same as everybody else did in the eighties.

In the current decade, the market clearly is moving down the path toward Linux. Linux will run on a variety of different chip sets; it certainly runs quite nicely on the Power chips. In the future, we'll see more and more customers run Linux on Power instead of running AIX on Power, and to us that's fine. AIX has always been an enabler. All the money in the Unix market has been made in hardware, in middleware on top of Unix, in applications and services on top of Unix. But not in Unix operating systems -- that's not where the payback has been.

It is fairly clear that they are talking about taking from SysV and putting it in AIX, not Linux. Read the rest of the article for more context.

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: bishopi on Wednesday, August 25 2004 @ 02:34 AM EDT
More & more, the IBM Nazgul appear to be relentless in their methodical destruction of the SCO case, while SCO now give the impression of being a headless, legless chicken, strapped to a barbeque, with the feathers becoming singed.

Ian

Happy days will soon be here again.....

---
Naughty SCO, EVIL SCO, BAAAAAAAD SCO!

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anni on Wednesday, August 25 2004 @ 02:44 AM EDT
I got to the page 15 and almost fell asleep *yawn*. It is truly amazing how this
document repeats the same old brain-liquefying arguments, which have been ripped
to pieces 10^6 times before in other court documents.

If the judges reactions are consistent with their previous behavior in this
case, I expect them to be extremely annoyed by this reply.


---
I am not a laywer, I hate acronyms, and I have been wrong several times before

[ Reply to This | # ]

OCR complete on this document. I am correcting OCR errors
Authored by: Thomas Frayne on Wednesday, August 25 2004 @ 02:45 AM EDT
I'll finish tomorrow and send the resulting rtf file to a volunteer or to PJ to
convert to html.

OCR errors on IBM-256, IBM's Reply to the CC10 PSJ motion have been corrected.
I'll send that to PJ or a volunteer tonight.

[ Reply to This | # ]

ELF
Authored by: DBLR on Wednesday, August 25 2004 @ 02:46 AM EDT
Did anyone notice footnote # 4 about ELF on page 6 (page 11 of the PDF). That
the 1995 version of ELF was published without the required copyright
recognition. This may explain the incorporation if ELF code in to linux. So they
will need Significant third-party-discovery concerning limits on which SCO's
predecessors in interest permitted others to use ELF code.

Charles

---

They who would give up an essential liberty for temporary security, deserve
neither liberty or security. Ben Franklin

[ Reply to This | # ]

SCO falls into yet another trap?
Authored by: Anonymous on Wednesday, August 25 2004 @ 03:02 AM EDT
Perhaps this is exactly what IBM was hoping SCO would do.

If SCO wins this motion then I can see IBM immediately filing a GPL-based
copyright suit against SCO.

Now THAT would be interesting...

Ian

[ Reply to This | # ]

Hard to read.
Authored by: Franki on Wednesday, August 25 2004 @ 03:11 AM EDT
It may be partially due to my bias, but this was much much harder to read then
any of IBM's motions.

It goes to show the difference between the two lawyer camps here, anyone can
read and understand the IBM motions, they are a little like a novel, logically
laid out, and well argued.

The SCO stuff is disjointed, half legal gibberish and doesn't read well.

Even if it contains valid points. (there must be at least one in there.) Its
unlikely anyone will remember them, because it was so hard to focus past page
4.

I hope SCO continue submitting this way, its going to make IBM's case easier..
but SCO don't have any choice anyway, since they don't have any real arguements,
they must rely on gibberish in an effort to make it look like they have valid
points.

Lets look without gibberish at what we actually know.
1. SCO has not provided any evidence of SCO Unix code in Linux from Dynix or
AIX. They are still trying for the derivative line.
2. SCO is without a doubt infringing IBM copyright for code that was released
under a license that SCO believes not legal and has repudated.
3. SCO has claimed in the press that the case is actually much more then it is
in court, and when IBM take that to them, they claim that the issues are not
relevant. If that is the case, then why tell the press that they are? That
should have one of two consequences, either they should "become" part
of the case, or the SEC should investigate them for making false claims to boost
the stock price. (which at last check was hovering just under $3.80).

If SCO had played by the rules from the get go, they might have had a chance to
bamboozal a jury, but as it stands now, they not only have to contend with IBM,
they have to contend with the 100 odd claims that they themselves made in public
that contridict their claims in court.

I had no legal interest at all before the SCO->IBM case, and my interest is
intense now, so I suppose I have SCO to thank
(or blame) for that.

rgds

Franki

---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: blacklight on Wednesday, August 25 2004 @ 03:19 AM EDT
Darl Vader: meet Darth Vader!

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anonymous on Wednesday, August 25 2004 @ 04:28 AM EDT
Am i imagining things, or at one stage does SCO say, "we're not saying IBM
copied code into linux, but we need to discovery on what code IBM copied to
linux" in the same document?....

am i misreading this document, or are they contraciting themselves in the same
document??!

[ Reply to This | # ]

Get ready for PSJ on 5th claim
Authored by: GLJason on Wednesday, August 25 2004 @ 04:28 AM EDT
Many have said before that IBM is playing chess. IBM has just forced SCOX to
admit that their 5th claim (for copyright infringement) is not about Linux, it's
all about their using AIX and Dynix. When the contract claims fall (which I
don't see how they can't), IBM will then file for PSJ on this claim.

[ Reply to This | # ]

Being deaf...
Authored by: erem on Wednesday, August 25 2004 @ 04:50 AM EDT
The recent bit about transcribing the hearing on mp3 (which isn't accessible to
deaf people) impressed me. The swiftness of response, the quality of muster by
people offering the service of transcribing so that all have access is supreme.

Now reading about IBM's actions makes me realise how privileged I am, as most
humans are, being equipped with proper functioning hearing.

How about being able to enjoy the sheer pleasure of hearing a distant rumble of
a thunderstorm, the enigmatic sound of water dripping in a pond, the sound of
rustling leaves, the distant chirrup of a bird. Being able to hear the quiet
sounds a human makes, like the squirming sigh of whomever at SCO first read
IBM's masterpiece... before they started bleating.

For some things there seems no written substitute.

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anonymous on Wednesday, August 25 2004 @ 05:21 AM EDT
Actually I think this is one of the better SCO filings I've seen in this case
(but that's not really saying much) The only thing that I didn't like was the
repetition - they could have said everything in a lot fewer pages.

The gist of it is:
1. "Judge, there's no legal rule FORCING you to take this declatory
judgement case" This seems likely enough - judges have a lot of discretion
on whether they'll take up declatory judgement cases

2. "If we have to defend against this it will complicate everything
immensely, and this case is moving slow as it is." I doubt this part is
going to fly - at oral arguments IBM will be able to say "well you claim
you already did all this analysis finding your code in linux... you even made
some of it public LAST YEAR (and it instantly was discredited)... why don't you
put the whole analysis before the judge so he can see how much this will
complicate the case"
Basically SCO wants to demonstrate that it would complicate the case a lot
-- the easiest way would be IF they had lots of evidence of infringment from
lots of parties so they could say "look at this 'truckload' of evidence;
it'll take forever to go through it"...but obviously they can't do that.
So instead they have to claim "oh we haven't even started looking for
copyright infringements... that'll take us forever" which is hard to square
with their public statements

3. A bunch of random whining about IBM slacking on discovery that they seem to
throw into everything the file these days - that part is probably for the press
more than anyone else

Basically they did a reasonable job of giving the judge enough wiggle room to
take the easy way out and let this issue be decided by the RedHat case in DE.
From the bit we've seen so far he doesn't seem to be the lazy type though, so I
bet it won't work.

(IANAL)

[ Reply to This | # ]

A,, err.. wha?
Authored by: Lord Bitman on Wednesday, August 25 2004 @ 05:24 AM EDT
I noticed this gem:
"If Linux contains SCO's copyrighted material -- no matter who contributed
it -- then IBM (as an end-user, copier, and distributor of Linux) would be
liable for infringing SCO's copyrights."

Am I the only one who had to re-read that one about nine times?
It seems like a really strange thing to say when your case is based entirely
around something completely different. Is this SCO's way of completely giving up
its original case? Are they moving on to just wanting to do to IBM when they did
to AutoZone?

---
-- 'The' Lord and Master Bitman On High, Master Of All

[ Reply to This | # ]

Not a troll - SCO are really our friends?
Authored by: DFJA on Wednesday, August 25 2004 @ 05:32 AM EDT
Bear with me on this - I'm not trolling, just trying to raise an interesting
discussion. I hate what SCO are doing as much as anyone else, but......

As I read more and more about what SCO are doing, I can't help wondering about
one thing - when this is all over and done with, Linux will come out of it
squeaky clean. SCO will have done all of us the favour of forcing the issue
regarding the cleanliness of the Linux kernel, and removed any lingering doubts
that anyone could possibly have had. And at the same time, they have forced the
GPL to be tested in court. And they've helped a lot of people understand what
the GPL is _really_ about - they certainly blew away the ignorant misconceptions
that I originally had.

The question is, is that what SCO were trying to do all along? I know this seems
unlikely, but the sheer incompetence of how they have handled their FUD
campaign, and the sheer incompetence of the legal campaigns makes it very hard
to believe that they believed they had a real case at the start. All the
evidence suggests that they don't, and that it was all about FUD and fishing,
right from the start. A cunning supporter of Linux might realise that 'there's
no such thing as bad publicity' and raise a legal campaign that at the start
seemed vaguely credible, but which could easily be proved wrong later on. Let's
face it, they even managed to con Microsoft into giving them a load of money
too. Microsoft's reputation has certainly not been helped by SCO's actions, so
in this way too they have helped us.

At the end of the day I find it hard to believe that a company can bring what it
believes are bona fide cases against multiple companies, but then execute them
with such a spectacular level of sheer incompetence.

OK I still think the most likely explanation is that they thought they'd go
fishing and get away with it, not banking on Groklaw coming into existence. But
even then I would have thought they would put up more credible
evidence/arguments than they have.

DFJA

---
43 - for those who require slightly more than the answer to life, the universe
and everything

[ Reply to This | # ]

Broken link in footnote
Authored by: Anonymous on Wednesday, August 25 2004 @ 05:38 AM EDT
Part of footnote, page 2: IBM's Mills sets sights on middleware, Linux, http://www.

Footnote, page 3: computerworld.com/printthis/2003/0,4814,86443,00.html, 10/27/03 (Exh. I).

Has SCO been writing the document using GeekLog?

-Cyp

[ Reply to This | # ]

pg5 - complaining about the IBM mis-statement "not compulsory" - is this common?
Authored by: Anonymous on Wednesday, August 25 2004 @ 05:52 AM EDT
I notice on pg5 that SCO make a meal out of the fact that IBM said in oral
arguments that counterclaim 10 wasn't compulsory, only to submit a correcting
memo the next day that it was.

I recall that at the time PJ mentioned that the memo was the appropriate way to
correct such mistakes, and are quite common. So I'm a little bemused why SCO are
making such a point of it. Is it a case of clutching at straws? I can't believe
a judge could place any weight on this argument, if anything I would think it
counts against SCO to whinge about common court practice.

Are lawyers' oral statements in court binding, even if immediately followed by a
written memorandum correcting mis-statements?


All in all, mighty interesting times!

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anonymous on Wednesday, August 25 2004 @ 05:55 AM EDT
p. 10 of the PDF (page 5 of the motion), 2nd paragraph, states

"Furthermore, while IBM now contends that its counterclaim is compulsory,
it previously and expressly asserted the very opposite viewpoint in response to
the Court’s inquiry at oral argument...."

On 29-June-2004, didn't IBM file a supplemental memorandum correcting their
assertion during oral argument, that in fact their 10th counterclaim *is*
compulsory? And didn't they also file another document so advising the court
that they made a mistake during oral argument?

[ Reply to This | # ]

More Legal Documents
Authored by: Anonymous on Wednesday, August 25 2004 @ 06:14 AM EDT
IBM have filed another series of declaration and sealed documents.

249. Declaration of Randall Davis in regard to [246] motion.
250. Declaration of Todd M. Shaugnessy regarding [152] PSJ on CC10
251. Sealed exhibits to [250]
252. Declaration of Brian W. Kernighan [sealed]
254. SCO reply memorandum in support of [142] motion to dismiss CC10
257. Sealed document in further support of [152] PSJ on CC10

Looks like BSF are buried in a blizzard of paper...

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: gtoomey on Wednesday, August 25 2004 @ 06:23 AM EDT
Of course SCO does not want to talk about copyright infringement in court.

After all, SCO's head egomaniac Darl says the GPL is unconstitutional. And since
linux is copyright, and SCO has been distributing linux, Darl is saying he has
been distributing software without the copyright holders' permission. IBM
included.

[ Reply to This | # ]

SCO's Proprietary Information
Authored by: micheal on Wednesday, August 25 2004 @ 06:40 AM EDT
IANAL
In this document (Reply Memorandum in Support of SCO's Motion to Dismiss or Stay
Count Ten of IBM's Second Amended Counterclaims"- page 16) SCO quotes SCO's
uses of the phrase "SCO's Proprietary Information". If the information
is not trade secrets (as admitted by SCO) and is not patents (also as admitted
by SCO) then all is left is copyrights. (Any information not covered by the
three categories is not SCO proprietary information, but, may be encumbered by
the contract.) Since the only thing SCO could legally mean would be copyrights
then IBM is justified in claiming the case is about IBMs infringing of SCO's
copyrights. IBM is holding SCO's feet to the fire on this one.


---
LeRoy -
What a wonderful day.

[ Reply to This | # ]

A point SCO might like to look at.
Authored by: Fourmyle on Wednesday, August 25 2004 @ 06:40 AM EDT
When making statements like " could require the testimony of many more
third parties who have contributed a significant amount of UNIX material "
( end of page 17 ) there would be more impact and less laughter if some actual
examples of UNIX material were then produced. As firm as this cry of injustice
appears to be , it must mean that examples have been found , and in large
numbers at that. Why keep this truth hidden?
IANAL , but I suspect the courts contain humans , and as such may be more
impressed with clear points, backed up with full force by solid examples taken
from reality.
While you may want to follow Cicero's advice, " When the law is against you
, argue the facts. When the facts are against you, argue the law. When both are
against you, abuse the plaintif. " you might want to remember that he
didn't die of old age.

[ Reply to This | # ]

$699
Authored by: Jude on Wednesday, August 25 2004 @ 06:44 AM EDT
If SCO cannot produce even the sliver of evidence that would suffice to save
their hide, what is SCO's justification for the $699/CPU license fee they've
been demanding from Linux users?

[ Reply to This | # ]

  • $699 - Authored by: leguirerj on Wednesday, August 25 2004 @ 07:19 AM EDT
  • $699 - Authored by: Anonymous on Wednesday, August 25 2004 @ 09:32 AM EDT
  • $699 - Authored by: Anonymous on Wednesday, August 25 2004 @ 10:26 AM EDT
  • $699 - Authored by: pooky on Wednesday, August 25 2004 @ 12:21 PM EDT
  • $699 - Authored by: red floyd on Wednesday, August 25 2004 @ 12:26 PM EDT
  • BOFH: The SCO Episodes - Authored by: Anonymous on Thursday, August 26 2004 @ 02:29 AM EDT
Is it at all unusual
Authored by: Anonymous on Wednesday, August 25 2004 @ 07:08 AM EDT
To quote your own briefings as proof in a later briefing. Does't it appear this
is what SCO is doing. I see very little case law, very little about the facts
and a WHOLE LOTTA whining about IBM. No meat, no dairy, no nothing. I am
suprised it took them this many words which simply could have been summed up as
"WAHHHHHHHH!!!!!". I just dont see anything of legal value in this
document. Sad actually....

[ Reply to This | # ]

IBM's Reply Memorandum is gonna be a GEM
Authored by: FurrBear on Wednesday, August 25 2004 @ 07:18 AM EDT
TSCOG and their lawyers seem to keep forgetting what they have already presented to the court, and worse, what certain officers of the company have stated in the press and in company press releases. Statements which, I am sure IBM have printed, authenticated, notarized, etc. The best example of which is the second of the "Numerous Burdens" that would be thrust upon TSCOG, identifying "the millions of lines of code." Umm, I'm sorry... but haven't Darl and Brent been claiming to have this evidence for quite some time now?
Replacing the illegal code seems unimaginable, even if we would be the first to approve such a solution. But we're talking about millions of lines of code and not a few dozen. On top of that, the pieces that were taken are precisely what makes Linux a viable solution for enterprise deployment, like SMP and NUMA. We therefore invite enterprise users to properly license Linux by purchasing our run-time-only Linux license or downgrading to a version of Linux prior to 2.4, which will probably be enough for some companies.-- Darl McBride, 2003-10-22
As I read this document, I found myself wondering if it would receive a passing grade in a civil procedure class. Lots and lots of legalese and sophistry but a tad short on facts of law. Facts of law seem to be in abundance in IBM's filings. TSCOG is running scared and it looks like they are filing "Hey, LOOK OVER THERE!" briefs while painting targets on themselves.

[ Reply to This | # ]

I cannot wait to see IBM's response to this
Authored by: Anonymous on Wednesday, August 25 2004 @ 07:30 AM EDT
I think they must be laughing themselves silly at this point.

[ Reply to This | # ]

Summary of IBM's argument supporting the CC10 PSJ
Authored by: Thomas Frayne on Wednesday, August 25 2004 @ 09:17 AM EDT
The CC10 PSJ motion seeks a negative declaration: that IBM's Linux activities do
not infringe SCOG's copyrights. The courts have consistently ruled that, once
an actual controversy has been shown, the movant's (IBM's) burden to justify a
summary judgment for such a negative declaration is to point out that the
non-movant (SCOG) has not adduced material facts sufficient to convince some
reasonable jury of the opposite conclusion (that IBM's Linux activities infringe
SCOG's copyrights). To defeat the motion, the non-movant (SCOG) must point to
the places in the court record where material facts sufficient to convince some
reasonable jury to decide against the movant's (IBM's) position were adduced or
to the places in the court record that justify a plea for additional time to
adduce such facts.

IBM first had to show an actual controversy. It did that by showing SCOG's
public statements that IBM's Linux activities infringed SCOG's copyrights and
IBM's Lanham Act claim that those statements are false, unfair, and damaging to
IBM.

IBM had to point out that the court record does not contain sufficient evidence
to show that IBM's Linux activities infringed SCOG's copyrights. It did that by
arguing that SCOG had not given sufficient admissible evidence to make a prima
faciae case of substantial similarity between protectible blocks of SysV code
and corresponding blocks of Linux code, and that SCOG had not even made a prima
faciae case of copyright ownership.

To defeat the motion, SCOG had to show one of the following:

a. That there was no actual controversy. SCOG did not attempt to argue this.

b. That the court record contains material facts sufficient to make a prima
faciae case that IBM's Linux activities infringe SCOG's copyrights. SCOG's
feeble efforts to do this involved insufficient evidence of substantial
similarity between protectible blocks of SysV code and corresponding blocks of
Linux code from witnesses not qualified to give evidence because they had not
qualified as experts and did not show personal knowlege of the facts and
opinions they testified to. SCOG's late registration of copyrights gave it the
burden of showing prima faciae evidence of copyright ownership; SCOG did not
attempt to do this.

c. That SCOG is justified in seeking more time to adduce the evidence it needs.
SCOG claims that IBM has abused discovery by withholding evidence that SCOG
requested, and that SCOG has not had enough time to produce the evidence
necessary to defeat the PSJ motion. However, the motion to compel additional
discovery, made without required consultation one day before filing SCOG's
opposition the the PSJ, asks for the same massive irrelevant information that
the court has already declined to require from IBM. The court ordered IBM to
provide the information that IBM had offered to provide, and IBM provided all
information that the court ordered. The additional information that SCOG wants
involves 2 billion lines of IBM's independently written code, and is irrelevant
to the PSJ because it cannot be used to show substantial similarity between
protectible blocks of SysV code and corresponding blocks of Linux code.

SCOG claims that it has not had enough time since CC10 was filed to compare SysV
with Linux, and that it would take 25,000 man-years to do this comparison. If
this calculation were correct, analysing another 2 billion lines of irrelevant
code would take millions of man-years. However, IBM's qualified expert has
testified that the comparison should have taken just a few months. SCOG should
have done it before filing suit in March, 2003, and publicly claimed to have
done it and to have found mountains of evidence of copyright infringement (which
it has not adduced). Further, IBM's Lanham Act claim, IBM's interrogatories,
and the two court orders requiring full answers to those interrogatories should
have induced SCOG to do the comparisons it had not completed, and many months
have passed.

[ Reply to This | # ]

Who actually processes this avalanche of motions?
Authored by: dkpatrick on Wednesday, August 25 2004 @ 10:19 AM EDT
The flurry has become a storm of paperwork. Each motion cites a plethora of
references and case history.

Does the judge read all the motions AND the reference material or is that done
by a paralegal/assistant and summarized for the judge?

I find it very difficult to believe that the judge takes this stuff home as
light reading prior to a nightcap.

---
"Keep your friends close but your enemies closer!" -- Sun Tzu

[ Reply to This | # ]

Why is this conduct tolerated?
Authored by: Anonymous on Wednesday, August 25 2004 @ 10:20 AM EDT
I am not a lawyer...... Why is the conduct of claiming discovery orders are not being followed for discovery not granted being ignored by the court? It seem to me that they (SCO) should be called to task for continually claiming IBM is not following discovery orders that have not be given. This fact seems to me as plain as my nose, yet the court does nothing. Am I missing something? Thanks. PS is it just me or does the underlining in the SCO motion look childish?

[ Reply to This | # ]

SCO errors in filing
Authored by: MadScientist on Wednesday, August 25 2004 @ 10:44 AM EDT
This document is all over the place. Its very ahdr to pin downeaxactly what they
are trying to say here. IBM are spot on to ask for orla argument - everyone
needs to hear what SCO are supposed to be saying here. Notheless there are a few
definite errors that can be found.

Page numbers are as given on the document.

++++++++++++++++++

p6 footnote

"The TIS ELF specification states that a non exclusive, worldwide royalty
free licence is made available to use the information in the ELF specification
to mae software TIS-compliant. However, the 1995 version of the ELH
Specification was published without the required copyright recognition. This may
explain the incorperation of ELF code into Linux. On this single issue, SCO
would need to engage in significant thrid part discovery concerning the limits
on which SCO's predecessors-in-interest permitted others to use ELF code and the
ways in which those limits were apparently exceeeded, including possibly
incorperating ELF code into Linux."

Copyright notice was not required. Not since the Berne convention was adopted in
the US over two decades ago.

The licence to use the code was royalty free and worldwide.
SCO need to delinate the limits to which they allude here and which SCO claim
may have been exceeded - if any such limits can be construed from the licence.


+++++++++++++++++++++++++++

p10

"The fact is to prove its claims, including its copyright claim, SCO need
not demonstrate that any third part has contributed any scource code to
Linux."

Thats not a fact. Thats a wish.

SCO claim there is have SCO copyrighted material in Linux. SCO have the burden
of proof ie they do have to show *thier code* is in Linux. Thats the law.

+++++++++++++

p12

"... IBM similarly and repeatly mischaracterised SCO's statements to this
court and to the media."

To the media? Anyone know of PR stuff from IBM on this case? At all? Let alone
*misleading* material".

[ Reply to This | # ]

SCO's stupid memo
Authored by: Anonymous on Wednesday, August 25 2004 @ 11:00 AM EDT
I found this was quite amazing.

Previously I nominated 205 as the stupidest yet, but this one may cap it.

The stupidest things include (among others):


1. They totally ignore IBM's argument, about what IBM's conduct is defined as

In IBM's memo, they point out that IBM's conduct includings contributing to
Linux, and copying the *whole* of Linux.

In SCO's reply memo, they just ignore that, and go back to IBM's contributions.


2. They almost totally ignore IBM's arguments about compulsory, and
non-compulsory, and several other points.


3. THE BEST ONE -- They contradict themselves. In the same memo. Spectacularly

SCO need to argue that IBM's CC 10 is non-compulsory. Because if it is
compulsory, the court has no discretion to dismiss it.

So,

(i) SCO starts off by saying (on dubious grounds IMHO), IBM's CC 10 is
non-compulsory

(ii) They argue it is non-compulsory because it is not the *EXACT* mirror image
of their own claims - and therefore ought to be dismissed.

(iii) They also argue, if even it were the *EXACT* mirror image, then it is
unnecessary - and therefore ought to be dismissed.


Well think for a moment about point (ii) and (iii).

If you follow SCO's theory, *every* counterclaim in *every* case, ought to be
dismissed

- Because if it's not an exact mirror image, it's non-compulsory (see point 4)

- And if it's is an exact mirror image, it's unnecessary




4. THE SECOND BEST ONE (lamlaw.com writes excellently on this point - read it)

In law, a compulsory counterclaim, can *not* be dismissed at the discretion of
the court. But a non-compulsory counterclaim can be dismissed at the discretion
of the court.

Here (as noted in point 3), SCO have put all their eggs into trying to argue CC
10 is non-compulsory, and given almost zero reason, why (if non-compulsory) the
court should exercise its discretion to dismiss.

Remember the sequence here:

(i) SCO file initial memo

(ii) IBM file a reply, mostly about discretion (e.g. IBM is more advanced than
AZ, IBM is ready for PSJ, etc)

(iii) IBM file a supplemental reply, about compulsory nature of CC 10

(iv) SCO file their answer


Well SCO (iv) seems aimed at (iii), and doesn't really mention *any* of the
arguments or cases in point (ii)


Quatermass
IANAL IMHO etc


[ Reply to This | # ]

More SCO droppers and an update on Compuware
Authored by: Anonymous on Wednesday, August 25 2004 @ 11:57 AM EDT
http://www.linuxdevices.com/news/NS9388678153.html

Updated Aug. 25, 2004] -- Security appliance vendor CyberGuard has begun
migrating its operating environment (OE) from SCO Unixware to CyberGuard Linux,
rebranding its entire line of firewall/VPN appliances with the new Linux-based
V6 OE and encouraging existing customers to upgrade.

http://www.detnews.com/2004/business/0408/25/c01-253340.htm

Compure President "Karmanos further said the company stands to win billions
of dollars from its software piracy lawsuit against IBM, which goes to trial in
November."

Sound familiar!

system5


[ Reply to This | # ]

User Bleats Back - Please Let PJ Come Back, Your Honor
Authored by: Ezra_Shank on Wednesday, August 25 2004 @ 11:58 AM EDT
I have always found PJ's systematic dissection of SCO documents to be extremely
valuable in understanding the meritlessness of SCO's positions. Not being in the
legal profession myself, it is difficult for me to discriminate an effective
legal tack from one that will leave your argument becalmed. Granting that SCO
here has once again buckshot the air with pellets of nonsense, there remain a
few grains of what seem to me to be potentially considerable arguements, which I
somehow missed if they were debunked here previously.

While I certainly enjoy the user comments' display of metaphorical brilliance in
describing the stupidity of SCO's latest submission, a great many of the
comments apppear to confuse that this memorandum acts not in opposition to the
PSJ on counter claim 10 sourced by IBM, but instead replies in support of SCO's
motion to dismiss that counterclaim. The two are not at all the same and to me
the focus is entirely different. Here evidence of SYS V code in linux is not
sufficent as it would be in opposition to the PSJ motion. I don't understand
that it would even be pertinent given that the dismissal would occur not because
of the lack of facts in dispute (as in a PSJ) but instead because the
counterclaim itself is innappropriate for consideration as part of this case for
procedural or case scope reasons.

PJ, with that context in mind, and cognizant of the workload that you are
already under, I would like to respectfully ask if you would give this reply
memorandum the treatment that the early motion work received. PJ, over the past
year you have thoroughly convinced me that civil cases are won and lost by the
motion play. Though we are seeing IBM's legal team put SCO's on the ropes, I
still want to know what moves are right, what arguments are not madee for a
clear reason, and where either side has missed an opportunity for development of
a legal point. What do the citted cases mean, and are they really applicable?
How would you respond? Before you were a journalist you were a paralegal, and I
for one miss the paralegal.

At least, could someone answer if the consequence of the admission of
counterclaim ten suggested on page 12 of this memorandum (that IBM's use and
distribution of linux would force consideration of all linux code regardless of
contributor with respect to SCO's purported copyrights) and supported by the
example of footnote 4 on page six is a reasonable consequence? In other words,
regardless of whether the burden is pertinent to the dismissal motion, is the
assertion that such a burden would be created valid?

Thank you

[ Reply to This | # ]

SCO Logic at it's best
Authored by: pooky on Wednesday, August 25 2004 @ 12:15 PM EDT
It's always interesting to peer into the twilight zone that is SCO's legal case
against IBM. A few things stand out in this memo:

1) They claim IBM admitted the claim wasn't compulsory on June 8th in court.
This would be the infamous correction that IBM had to send to the court to
correct Mr. Marriot's brief mistatement. SCO chooses to ignore this though and
simply tries to claim what IBM said in the court as the final word.

2) SCO totally ignores the fact that SCO sent IBM one of the infamous letters
requesting negotiation to resolve IP issues within Linux and due to their
copying of Linux or they may be sued. IBM has thus been threatened by SCO in
writing for general Linux activities. SCO doesn't even mention this fact in
their memo although IBM brought it up.

3) And my favorite of all is them trying to explain away their contradictory
statements to the RedHat court as they hadn't filed to dismiss CC10 when they
made the statement to the RedHat Judge. And this means.....what exactly? I
notice that isn't really explained well in their memo.

-pooky

---
Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

The SCO Group Reconfirms Closing of Repurchase Transaction Between SCO and BayStar Capital
Authored by: DBLR on Wednesday, August 25 2004 @ 12:42 PM EDT
Does this mean that Baystar blinked? From Yahoo news. BayStar requested and has now received its stock certificate and $13 million in cash. Full press release click here.

Charles

---

They who would give up an essential liberty for temporary security, deserve neither liberty or security. Ben Franklin

[ Reply to This | # ]

Make It Stop...
Authored by: tredman on Wednesday, August 25 2004 @ 12:57 PM EDT
Okay, I've only gotten through to page 7, and my eyes are already starting to
cross. However, this is to indicate that my opinions so far are only based on
the first 7 pages.

As far as I can tell, with less legal experience than somebody who's been to
traffic court, there are a few fallacious arguments that SCOX is trying to use
to prop this whole thing up:

1) Their claim that it's IBM who's solely responsible for making Linux
enterprise-ready (p3 "IBM did so to transform Linux into a specialized tool
for the highest-end of business use and to increase IBM's profits, its power
over its rivals, and its strength in the market."). I imagine that
statement makes Linus, Andrew, Marcello, Ingo and all of the other fine kernel
developers awful proud of their accomplishments.

2) SCOX's age-old interpretation of derivative works. This has been gone over
so many times, and rebutted in some of the newer documents from IBM, I won't
even go into it here.

3) SCOX's belief in the exclusivity of copyright and contract law. I really
can't see how they can extricate the two in this instance. I think, in terms of
the business agreement between IBM and AT&T, they pretty much go hand in
hand, especially when you take into account #2.

4) I've had a chance to read the court filings up until now, but is it unusual
for a claimant to go 7 pages with only one citation of case law? It's on page
three, referring to Driver Music Co. v. Commercial Union Ins. Co., and even
then, they're paraphrasing the case law and not really quoting it. For those
keeping score at home, the next case law cited isn't until page 9, and once
again, it's the same case, though they do a little better with their quotation.
However, correct me if I'm wrong, but didn't IBM cite the same case or a similar
one in one of their previous filings AGAINST SCOX, or was it a similar case from
a different circuit. I don't remember.

5) There's an old adage that history is written by the victor. In SCOX's case,
they don't want to wait that long, so on pages 6 and 7, they start with their
version of history, the one where they have complied with court orders and IBM
has contemtuously stalled ("...IBM still refuses to
produce...discovery...that the Magistrate Judge ordered IBM to produce in March,
and that SCO has been seeking for over a year.", "IBM delayed
producing even the most basic discovery...until approximately a year after the
case began."). Ya think that the Magistrate Judge will remember that she
was the one that told IBM to hold off? I think she will.

Oh, well, on with the tripe...

Tim

[ Reply to This | # ]

PJ
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:07 PM EDT
I do follow your website with interest. One thing I might point out is that the
conflict between SCO and IBM et al will eventually end - and most can predict
how. However, I am sure that you want your website to continue as a platform
that highlights, with a whimsical air, the leading legal cases in the software
arena. With that in mind, I question whether a mostly impartial approach
wouldn't be better than the biased advocacy that frequently makes itself
apparent in your summaries. Oh, pound SCO all you want in an editorial aside,
but I suggest you clearly segregate them.

Now, on the pounding of Microsoft. You have to realize that many millions of
programmers owe their livelihood to the complications inherent in the Windows
operating system. Knock them all you will, but remember, their advocates form a
much larger base, and consider if you want to turn them away. The trickle-down
of largesse from Microsoft products has kept me gainfully employed for many a
year.

Cheers,

Dave

[ Reply to This | # ]

Columbus
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:16 PM EDT
I think it took Columbus less time to discover american than its taken SCO to
discover anything.

[ Reply to This | # ]

  • Columbus - Authored by: SteveS on Wednesday, August 25 2004 @ 02:01 PM EDT
  • Columbus - Authored by: Anonymous on Wednesday, August 25 2004 @ 08:53 PM EDT
    • Columbus - Authored by: Mike Steele on Thursday, August 26 2004 @ 02:27 AM EDT
      • Columbus - Authored by: Anonymous on Thursday, August 26 2004 @ 07:48 PM EDT
    • Flat Earthers - Authored by: tgf on Thursday, August 26 2004 @ 08:40 PM EDT
SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:36 PM EDT
Wow, SCO argues that the counterclaim is not compulsory.

Their second amended complaint says (emphasis added)

"IBM breached its obligations to SCO, including by...incorporating(and inducing, encouraging, and enabling others to incorporate SCO's proprietary software into Linux..."
and
"IBM has knowingly induced, encouraged, and enabled others to distribute proprietary information..."

How can they then say only IBM's direct activities are relevant when their claim specifically mentions the "others"? IBM distributes Linux to some of their customers. IBM contributes to Linux. These contributions are at the heart of SCO's claim. Since IBM contributes them under GPL, other people are encouraged to distribute them as well. This is SCO's position, how can they now say that these other parties are not relevant to their claim ? Their claim directly mentions the others.

For example, say John Doe contributed XYZ to Linux. IBM then distributes Linux with XYZ. See SCO's claims above and tell me how this doesn't affect the first one.

Example two : IBM contributes ABC (JFS?) to Linux under GPL. Hypothetical Co. then distributes a version of Linux with ABC. How does this not affect the second part quoted above ?

It seems to me (IANAL) that SCO made this compulsory by including the "others" in their claim. The GPL issues make this even more relevant, as any contibution by IBM or the "others" is going to affect IBM with regards to SCO's so called proprietary information. IBM distributes ALL (JFS, RCU, complete source code, etc.) of Linux to some customers. All of Linux is at issue. IBM has contributed code to Linux which is incorporated into many distributions, not only the one's IBM distributes. These other distributions are at issue as long as SCO keeps the "induced, encouraged, and enabled others" language in their claim.

Dean G.

[ Reply to This | # ]

ELF?
Authored by: GLJason on Wednesday, August 25 2004 @ 01:37 PM EDT
On the footnote on page 11 of the PDF (numbered page 6), SCO mentions ELF. They say that maybe the reason ELF made it into Linux was because the copyright was erroneously ommitted when the specification was published. Of course, the license if pretty straightforward:
The TIS Committee grants you a non-exclusive, worldwide, royalty-free license to use the information disclosed in this Specification to make your software TIS-compliant; no other license, express or implied, is granted or intended hereby.
There are several reasons SCO's case doesn't hold water:
  1. The license quoted above is valid, it was granted by the copyright owner at the time
  2. The specification is just a way to do things. The actual "specification" aside from the specific written PDF embodies "ideas". This means the proper IP protection would be that of patents. Interfaces in computer programs are specifically excluded from copyright. Of course patents were definitely not transferred to Santa Cruz.
  3. The specification seldom mentions UNIX in particular, mostly it talks about "operating systems" and "software". This was not a document intended solely to make UNIX variants compatible, but for all software (compilers, linkers, debuggers, and other programs). It doesn't specifically restrict the license to UNIX-based operating systems and software either.
  4. If #3 was the case and SCO only intended this document to be used in the development of licensed UNIX operating systems, then any developer of a compiler, linker, or debugger that wished to make use of the spec would have to get SCO's permission in order to produce their product.
  5. In fact, using SCO's methodology, any program compiled in ELF format would include copyrighted material from this specification and therefore need a license from SCO. This is plainly ridiculous.

[ Reply to This | # ]

something I don't understand
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:46 PM EDT
When reading IBM's filings. It seems they are trying to have the court rule that
none of IBM's Linux activities are/were infringing in any way on SCO puported
copyrights.

When reading SCO's document, it seems SCO is arguing that IBM is trying to get a
ruling that there is NO infringement in any way anywhere in Linux for anybody
and that having to argue that would be irrelevent to their case.

get it? IBM says "Please declare that we are not infringing"
SCO replies "Please don't declare that there is NO infringement in
Linux"

Am I reading it wrong? Or is SCO arguing over something completely different
than IBM?

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: swkl on Wednesday, August 25 2004 @ 02:00 PM EDT
Could someone explain why IBM's 10th CC should be considered? It looks to me
like a separate issue - regardless of how well SCO makes the point.

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: tmtwong on Wednesday, August 25 2004 @ 02:13 PM EDT
What is interesting about SCO's brief is that it accuses IBM of trying to get
the judge to rule on the copyright legitimacy of *all* contributions to Linux,
not just those by IBM. This tactic, to me, seems different from simply saying
that IBM's counterclaim is irrelevant because SCO's lawsuit is a contract (and
not copyright) dispute.

SCO's brief (I've only had time to read the first few pages) seems to talk past
IBM's motion entirely. IBM specificially restricts its counterclaim to IBM's
"homegrown" code. SCO is likely trying to obfuscate that restriction
and confuse the judge.

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Anonymous on Wednesday, August 25 2004 @ 02:17 PM EDT
The depths that SCO will sink to to try and provide a reason for the CC10 to be
denied are rather deep, just some of the things I noticed here:

1) It's ironic how SCOG claims that IBM is trying to rewrite SCOG's complaint to
make CC10 compulsory (from page 11)... and then pointing to its Second Ameneded
Complaint. (No, we didn't get it right the first time, nor the second, we
completely dropped the trade secret claims from the first complaint, added some
new things, so here's our third complaint. It doesn't hinge on SCOG's materials
in Linux, so IBM's complaint is not compulsory, as this is a contract dispute.)

The SAC relies on the assertion that IBM did something to violate the license
agreements. The SAC brings in copyright violation (termination of the IBM
license) because IBM distributed AIX. The reason for the termination along the
lines of "SCOG's IP is in Linux and IBM was (partly) responsible for
putting it there". The various complaints outline this vague notion.
Hence, for IBM to have violated its contract, SCOG must show how their IP has
been violated. In this case, they admitted no Trade Secrets are in Sys V, and
have dropped that claim. Since SCOG have no patents, that only leaves
copyright...

I don't see how CC10 isn't compulsory. SCOG is right, it is now a contract
dispute as they claim, but they ignore that the reason that the dispute exists
is they claimed IBM misappropriated SCOG's IP. SCOG bootstrapping their SAC off
of their first two complaints and then saying that something which gets to the
heart of their first complaint isn't compulsory won't impress the judge.

Also, as has been stated, IBM should not have to put up with an endless supply
of SCOG's complaints based on some other third party action. Which brings us
to:

2) It's funny how SCOG claims that CC10 would make sweeping declarations about
any third party activities (Linux contributions), therefore it's overbroad in
it's statements and thus must be permissive.

There are three things that SCOG can sue over based on Linux use or
modification: Copyrights, patents, and contract violations. In order for this
argumet to fly, that IBM's 10CC clears any and all third party contributions to
Linux, the CC must take care of these things. This falls flat on it's face
under the least bit of thought. The only two things that the CC could clear a
third party of are copyright and patent. SCOG does not own any patents in UNIX,
so that only leaves copyright.

The CC does not affect trade secrets at all. This does not mean SCOG can't sue
someone else for contract violation for revealing trade secrets. The CC would
only clear anyone of copyright/patent infringement. Perhaps SCOG should've only
argumed that the CC undermines their future lawsuites based on copyrights, and
not brought this "all third parties are cleared" language into it.

SCOG has the two sources necessary to find possible copyright violations in
Linux already... Sys V and Linux. They've had two court orders to do so. They
complain about how they need testimony to clear all third party contributions to
Linux for CC10 to be ruled on. Ummm no, they don't. CC10 can be decided based
on two code bases: Sys V and Linux. Testimony is irrelevant here aside from
disproving SCOG's assertions (for example the BPF code).

There's some other odd things here that really defy logic. For example,
claiming that the case isn't about SCOG's material in Linux, only IBM's failure
to abide by it's contracts. This flies in the face of no less than 2 court
orders telling SCO to specficially list the materials it contends it has rights
to in Linux... because termination of IBM's license was justified under
"IBM dumped Sys V into Linux". Plus possible copyright violations
don't need any third party testimony to be found, just here is part of A in B
(Sys V in Linux) which is covered by my copyright...

There's some more complaining that CC10 is not compulsory, becasue IBM said it
wasn't (as stated previously in SCOland the correction memo from IBM doesn't
matter). IBM can't have CC10 because it doesn't deal directly with the contract
issues... granted they 'terminated' the AIX license because of IBM's Linux
activities... but who cares, right? They argue that CC10 adds complex issues to
the case, like additional copyright issues. Didn't SCO say it did a code
analysis? Didn't it say it at least two of its complaints that line-for-line
and non-literal copying of Sys V materials took place... They relied on their
motion to compel as evidence of IBM's wrong doing. I didn't know someone could
reference their own memo's as proof of misconduct by another party...

I got through page 20 some odd (numbered by the document, not the PDF page
numbers)... maybe a bit more... I think the analogies about SCOG acting like a
two year old were quite right here... Lot's of complaining, lot's of false
conclusions... Lot's of everything but solid arguments.

-TomcaT-

[ Reply to This | # ]

Bang! Bang!
Authored by: Anonymous on Wednesday, August 25 2004 @ 04:36 PM EDT
(the sound of yet more holes shot in SCO's feet)

From footnote 6 on pg 10: “The fact is that to prove its claims, including its
copyright claims, SCO need not demonstrate that any third party has contributed
any source code in Linux.”

Doesn't this directly contradict what they are claiming throughout half this
document? That IBM is complicating the issue and would force them into discovery
on every third party who ever contributed to Linux?

Not to mention contradicting their motion to compel, and their constant whining
about IBM's refusing to produce discovery.


And from footnote 8 on pg 13: “Although SCO submits that it can defeat the
declaratory judgement IBM seeks in the tenth counterclaim by demonstrating that
even one of IBM’s Linux-related activities violates a SCO copyright..”

Yeeees...? And that they demonstrate that where?

I can't believe that after failing to produce any evidence at all of a copyright
infringement, they can stupidly turn around and point to their own failure as
somehow being an argument in their favor!

[ Reply to This | # ]

Er, um, It's an EASIER target.
Authored by: darkonc on Wednesday, August 25 2004 @ 06:27 PM EDT
On page 12 of SCO's response, they acknowlege that their claims include: "Two passages from SCO's second ammended complaint, in which SCO claims that (1) 'IBM has breached its obligations to SCO, including by ... incorporating (and inducing, encouraging and enabling others to incorporate) SCO's proprietary software into Linux open source software offerings," Second ammended Compl PP 6; and (2) 'IBM has knowingly induced encouraged and enabled others to distribute proprietary information in an attempt to conceal its own liability for such distributions," id PP 109

For that to occur, there has to be some proprietary information owned by SCO that has been distributed somewhere in Linux without SCO's acquiescence. IBM's 10th counterclaim asserts that this has not happened. This is actually a much easier target for SCO to hit, than having to find inappropriate proprietary software and then having to prove that it was inserted by IBM. SCO need only provide proof of the existence of such infringement not (as SCO seems to suggest) an exhaustive list of all such infringement. As such, claiming that the larger target is harder to hit than the (IBM contributed) bullseye is a logical absurdity.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: Nick Bridge on Wednesday, August 25 2004 @ 09:51 PM EDT
Is it just me, or is SCO trying to say "Judge, please deny the motion
'cause if you don't it will delay and complicate the case."?
THAT is completely insane!

[ Reply to This | # ]

SCO Bleats Back - Please Make IBM's 10th CC Go Away, Your Honor
Authored by: jim Reiter on Wednesday, August 25 2004 @ 11:27 PM EDT
The best reading in this whole flea market is as follows:

#
# 127 IBM's Second Amended Counterclaims Against SCO --- [text] and 3-way
comparison chart SCO's Amended Complaint, SCO's 2nd Amended Complaint, IBM's
Answer to SCO's 2nd Amended Complaint

* Exhibit O Novell letter of June 9, 2003
* Exhibit P Novell letter of June 12, 2003
* Exhibit Q Novell letter of October 7, 2003
* Exhibit R Novell letter of October 10, 2003
* Exhibit S Novell letter of February 6, 2004
* Exhibit T Novell letter of February 11, 2004

I do not know judges, but I cannot believe that any human being would want to
continue this charade with TSG.

What I read from TSG appears to be confused, poorly written and off point. Is
it just me?

Since IBM has raised 4.16 (b) as a defense and TSG does not seem to challenge
it, what's a Judge to do.

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