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IBM Motion For Order Limiting Scope of 9th CC - PDF and text
Wednesday, February 23 2005 @ 12:21 AM EST

Well, this is the first time we've had a legal document filed in SCO v. IBM that has me stumped. The problem is, it's in response to SCO filings that were completely sealed (#s 322, 323, 369 on Pacer, which you can also find on our IBM Timeline page, and IBM's opposition memo was sealed also, #337), so I'd only be guessing as to what it means, and I don't like to guess when there is so little info. However, if you reread the October hearing notes we published at the time, it will give you a pretty big hint, the part under the heading "SCO's Rebuttal.".

This filing is titled, IBM's Motion for Entry of Order Limiting Scope of IBM's Ninth Counterclaim. All I clearly understand is that once again SCO and IBM can't settle a matter without the court refereeing.

I gather SCO is trying to interpret IBM's 9th CC in a broader way than IBM says it ever intended. They see no reason why SCO should be writing IBM's counterclaims, so it apparently explained to SCO that it had no interest in pursuing such a broad counterclaim as SCO was envisioning, and they asked SCO to stipulate. But SCO said no, so now they are back before the judge again.

But, you say, didn't the judge say no more motions until discovery is over? No. He said no more *dispositive* motions, and this isn't dispositive. Well, it disposes of the annoyance of dealing with an intransigent SCO, I suppose, but it doesn't dispose of any claim, so they can bring this motion.

I confess, I've never witnessed a case where one side in litigation tried to expand the other side's counterclaims. I am crazy wild to read what SCO filed, naturally, but I know from experience that with time, we'll get the gist of it. For one thing, SCO has to answer this motion, and then IBM must reply, so that gives us opportunities to discern what is going on.

IBM also filed a motion asking to be allowed to file an overlength sur-reply memorandum in opposition to SCO's motion for leave to file a third amended complaint. They point out that SCO filed two overlength documents regarding this matter already, so it needs more space to respond. Judge Kimball has never refused such a request, so it's likely he will grant this request as well.

IBM's argument goes like this: First SCO presented its Second Amended Complaint, with a Fifth Cause of Action, alleging copyright infringement by IBM for continuing to distribute AIX and Dynix after SCO's purported termination of IBM's license. In direct response to SCO's allegation, IBM asserted a Ninth Counterclaim that mirrors the claims of SCO's Fifth Cause of Action, "seeking a declaration of non-infringement with respect to IBM's UNIX activities. In asserting its Ninth Counterclaim, IBM intended to seek only a declaration that because IBM has not breached IBM's license agreements with AT&T and SCO's purported termination of those licenses is invalid, IBM's continued distribution of AIX and Dynix products does not infringe SCO's alleged copyrights." Now, IBM tells the court, SCO is trying to add a Tenth Cause of Action, asserting copyright infringement for activities that are not here spelled out, trying to construe IBM's Ninth Counterclaim "broadly to encompass the conduct challenged by SCO's proposed new copyright claim." The "conduct" is not spelled out, so we are left hanging. The judge knows what they are talking about, however.

If you are curious and wish to review IBM's Ninth Counterclaim, it goes like this:

NINTH COUNTERCLAIM

Declaratory Judgment of Noninfringement of Copyrights

162. IBM repeats and realleges the averments in paragraphs 1 through 161, with the same force and effect as though they were set forth fully herein.

163. SCO purports to hold copyrights relating to UNIX software, including the following copyrights:

Registration No. Date of Registration

Title of Work

TXU-510-028 March 25, 1992 UNIX Operating System Edition 5 and Instruction Manual
TX u-511-236 April 7, 1992 UNIX Operating System Edition 6 and Instruction Manual
TXu-516-705 May 15, 1992 UNIX Operating System Edition 32V and Instruction Manual
TXu-516-705 May 15, 1992 UNIX Operating System Edition 7 and Instruction Manual
TXu-301-868 November 25, 1987 Operating System Utility Programs
TX5-787-679 June 11, 2003 UNIXWARE 7.1.3
TX 5-750-270 July 7, 2003 UNIX System V RELEASE 3.0
TX 5-750-269 July 7, 2003 UNIX SYSTEM V RELEASE 3.1
TX 5-750-271 July 7, 2003 UNIX SYSTEM RELEASE 3.2
TX 5-776-217 July 16, 2003 UNIX SYSTEM V RELEASE 4.0
TX 5-705-357 June 30, 2003 UNIX SYSTEM V RELEASE 4.1ES
TX 5-762-235 July 3, 2003 UNIX SYSTEM V RELEASE 4.2
TX 5-762-234 July 3, 2003 UNIX SYSTEM V RELEASE 4.1
TX 5-750-268 July 9, 2003 UNIX SYSTEM V RELEASE 3.2

164. SCO has sued IBM claiming that IBM has infringed, induced the infringement of, and contributed to the infringement of, SCO's purported UNIX copyrights by, among other things, continuing to "reproduce, prepare derivative works of, and distribute" copyrighted UNIX materials through its activities relating to AIX and Dynix.

165. IBM does not believe that its activities relating to AIX and Dynix including any reproduction, improvement and distribution of AIX and Dynix, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.

166. An actual controversy exists between SCO and IBM as to the noninfringement of SCO's copyrights and the validity of any purported SCO copyrights concerning UNIX.

167. IBM is entitled to a declaratory judgment pursuant to 28 U. C. Section 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through the reproduction, improvement, and distribution of AIX and Dynix, and that some or all ofSCO' s purported copyrights in UNIX are invalid and unenforceable.

IBM also references SCO's Second Amended Complaint, Fifth Cause of Action, which reads like this:

FIFTH CAUSE OF ACTION

(Copyright Infringement)

173. Plaintiff incorporates and re-alleges paragraphs No. 1-172, above.

174. As set forth above, SCO is the successor in interest to the IBM Related Agreements and the Sequent Agreements.

175. Despite termination of such Agreements, IBM has continued to reproduce, prepare derivative works of, and distribute UNIX software, source code, object code, programming tools, and documentation related to UNIX operating system technology, and has induced others to do the same.

176. SCO is the owner of copyright rights to UNIX software, source code, object code, programming tools, documentation related to UNIX operating system technology, and derivative works thereof. These materials are covered by numerous copyright registrations issued by the United States Copyright Office (the "Copyrighted Programs"). These registrations have been obtained by SCO and its predecessors in interest and are owned by SCO. For example, included among such registrations (attached as Exhibits H to U) are the following:

Table E
 TitleRegistration NumberRegistration Date
HUNIX Operating System Edition 5 and Instruction ManualTXU-510-028March 25, 1992
IUNIX Operating System Edition 6 and Instruction ManualTXu-511-236April 7, 1992
JUNIX Operating System Edition 32V and Instruction ManualTXu-516-704May 15, 1992
KUNIX Operating System Edition 7 and Instruction ManualTXU-516-705May 15, 1992
LOperating System Utility ProgramsTXu-301-868November 25, 1987
MUNIXWARE 7.1.3TX 5-787-679June 11, 2003
NUNIX SYSTEM V RELEASE 3.0TX 5-750-270July 7, 2003
OUNIX SYSTEM V RELEASE 3.1TX 5-750-269July 7, 2003
PUNIX SYSTEM V RELEASE 3.2TX 5-750-271July 7, 2003
QUNIX SYSTEM V RELEASE 4.0TX 5-776-217July 16, 2003
RUNIX SYSTEM V RELEASE 4.1ESTX 5-705-356July 30, 2003
SUNIX SYSTEM V RELEASE 4.2TX 5-762-235July 3, 2003
TUNIX SYSTEM V RELEASE 4.1TX 5-762-234July 3, 2003
UUNIX SYSTEM V RELEASE 3.2TX 5-750-268July 9, 2003

177. SCO and its predecessors in interest created the Copyrighted Programs as original works of authorship, and, as such, the Copyrighted Programs constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Programs were automatically subject to copyright protection under 17 U.S.C. Section 102(a) when such programs were fixed in a tangible medium of expression. Copyright protection under 17 U.S.C. Section 106 extends to derivative works which are defined in 17 U.S.C. Section 101 to include works based on the original work or any other form in which the original work may be recast, transformed, modified or adapted.

178. Pursuant to U.S.C. Section 410(c), the certificates of copyright registrations for each Copyrighted Program constitute prima facie evidence of the validity of the copyrights and of the facts stated in the certificates. SCO and its predecessors' registered copyrights in the Copyrighted Programs are entitled to such statutory presumptions.

179. IBM's breaches of the IBM Related Agreements and the Sequent Agreements and its post-termination actions have infringed, have induced infringement of, and have contributed to the infringement of, copyright registrations of SCO and its predecessors. Such actions have been willful and have been done with knowledge of the copyright rights of SCO.

180. SCO has been damaged by IBM's conduct and has no adequate remedy at law. IBM's conduct has caused, and, if not enjoined, will continue to cause, irreparable harm to SCO. As a result of IBM's wrongful conduct, SCO is entitled to injunctive relief pursuant to 17 U.S.C. Section 502 and SCO's actual damages and IBM's profits as a result of the infringing acts pursuant to 17 U.S.C. Section 504(a), statutory damages to the extent applicable pursuant to 17 U.S.C. Section 504(b) and enhanced damages, together with attorneys' fees and costs pursuant to 17 U.S.C. Section 505.

For now, then, that is all I know. With time, we'll fill in the blanks, and here we have collected the information we need to be able to recognize the rest when it shows up.

*****************************

SNELL & WILMER L.L.P.
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

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,


v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.
IBM'S MOTION FOR ENTRY OF
ORDER LIMITING SCOPE OF
IBM'S NINTH COUNTERCLAIM



Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully moves the Court for entry of an order limiting the scope of IBM's Ninth Counterclaim.

SCO's Fifth Cause of Action (Copyright Infringement) in its Second Amended Complaint alleged that IBM infringed SCO's alleged copyrights by continuing to distribute AIX and Dynix products after SCO's purported termination of IBM's license agreements with AT&T. In response, IBM asserted its Ninth Counterclaim, seeking a declaration of non-infringement with respect to IBM's UNIX activities. In asserting its Ninth Counterclaim, IBM intended to seek only a declaration that because IBM has not breached IBM's license agreements with AT&T and SCO's purported termination of those licenses is invalid, IBM's continued distribution of AIX and Dynix products does not infringe SCO's alleged copyrights.

SCO, attempting to amend its complaint for the third time and add a Tenth Cause of Action (Copyright Infringement), construes IBM's Ninth Counterclaim broadly to encompass the conduct challenged by SCO's proposed new copyright claim. IBM did not, and does not, intend its Ninth Counterclaim to encompass the conduct challenged by SCO's proposed new copyright claim, and IBM does not otherwise seek a declaration in this litigation that the conduct challenged by SCO's proposed new copyright claim does not infringe SCO's alleged copyrights.

Even assuming that SCO's reading of the text of IBM's Ninth Counterclaim is plausible, it makes no sense to require IBM to prosecute a broader claim when IBM has no interest, in this litigation, in doing so.

IBM has asked counsel for SCO to stipulate to the entry of the attached proposed order narrowing the scope of IBM's Ninth Counterclaim, but SCO has refused.

Based on the foregoing, IBM requests that the Court enter an Order in the form submitted herewith.

2

DATED this 18th day of February, 2005.

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

3

CERTIFICATE OF SERVICE OF CLERK

I hereby certify that on the 18th day of February, 2005 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
[address]

Stephen N. Zack
Mark J. Heise
BOIES SCHILLER & FLEXNER
[address]

Robert Silver
Edward Normand
Sean Eskovitz
BOIES SCHILLER & FLEXNER
[address]

____[signature]____
Amy F. Sorenson

4


  


IBM Motion For Order Limiting Scope of 9th CC - PDF and text | 119 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections go here please.
Authored by: Hiro Protagonist on Wednesday, February 23 2005 @ 09:48 AM EST
Corrections go here please.


---
I Grok... Therefore... I am.

[ Reply to This | # ]

OT here
Authored by: Reliant on Wednesday, February 23 2005 @ 09:55 AM EST
The on-topic off-topic

[ Reply to This | # ]

My guess
Authored by: Anonymous on Wednesday, February 23 2005 @ 10:04 AM EST
It's probably an evidenciary well backed counter-claim. By broadening the
definition, SCO probably hopes it can have a technical win on appeal.

[ Reply to This | # ]

  • My guess - Authored by: jmc on Wednesday, February 23 2005 @ 10:34 AM EST
    • My guess - Authored by: Anonymous on Wednesday, February 23 2005 @ 11:02 AM EST
      • My guess - Authored by: Anonymous on Wednesday, February 23 2005 @ 11:48 AM EST
        • My guess - Authored by: Anonymous on Wednesday, February 23 2005 @ 11:56 AM EST
          • My guess - Authored by: Anonymous on Wednesday, February 23 2005 @ 12:25 PM EST
            • My guess - Authored by: Anonymous on Wednesday, February 23 2005 @ 01:21 PM EST
            • My guess - Authored by: Anonymous on Wednesday, February 23 2005 @ 02:37 PM EST
      • FOLC&D? - Authored by: feldegast on Wednesday, February 23 2005 @ 12:01 PM EST
        • FOLC&D? - Authored by: Anonymous on Wednesday, February 23 2005 @ 02:39 PM EST
          • FOLC&D? - Authored by: Tyro on Wednesday, February 23 2005 @ 03:34 PM EST
A guess?
Authored by: Anonymous on Wednesday, February 23 2005 @ 10:06 AM EST
SCO tried to have an email read to the general public that was declared
confidential by IBM where SCO alleges IBM improperly used SCO code to port AIX
to PowerPC processors. My guess is SCO is trying to add this claim to the case
in support of their copyright case and also use it to derail IBM's 9th CC by
proving IBM improperly used SCO's code thus justifies SCO terminating IBM's
license and rights to distribute.

[ Reply to This | # ]

Why a plaintiff might want expansive interpretation of a counterclaim
Authored by: Anonymous on Wednesday, February 23 2005 @ 10:12 AM EST
>I've never witnessed a case where one side in litigation tried to expand the
other side's counterclaims.

OK, just a thought, but here are two possible reasons:
1) SCO wants more discovery. If IBM's 9th Counterclaim pertains to something
more than AIX and Dynix (ie, more than the stuff the court has already ordered
IBM to produce), then it's only fair that SCO get a chance to look at IBM's
other code (or other documents) to see whether or not IBM really "does not
infringe any SCO copyrights" by its other activities. It's not clear to me
what documents SCO is hoping to look at. Is it possible that there's something
Linux-related that SCO was not able to get produced by any other argument, so
now they're looking for a new argument to try again to look at it?

2) Is it too late to file counter[-counter]claims? If not, maybe SCO is trying
to argue that something in IBM's 9th counterclaim permits (or even obliges) them
to file a new claim. I'm not sure what this could be (there are an awful lot of
claims already filed), but obviously adding a claim at this stage would
complicate and delay the case, which after all is the best SCO can hope for.

---Nartreb

[ Reply to This | # ]

IBM Motion For Order Limiting Scope of 9th CC - PDF and text
Authored by: mt_f4nb0y on Wednesday, February 23 2005 @ 10:32 AM EST
I agree, it sounds strange for SCO to want to interpret IBM CC9 more broadly
than intended. Obviously, they feel that they can gain some advantage in the
case by broadening the scope of CC9.

However, isn't this par for the course with SCO? Remember, they tried doing the
same thing with all the license agreements that they inherited from their
"predecessors in interest" simply because it could have provided them
a huge advantage in the UNIX market and stamped out virtually all competition.

IMHO, of course. Like PJ said, this is only speculation right now...The pieces
of the puzzle will fall into place soon.

Paul

[ Reply to This | # ]

IBM Motion For Order Limiting Scope of 9th CC - PDF and text
Authored by: mark on Wednesday, February 23 2005 @ 10:44 AM EST
Sco has added something in the amended complaint for which they can claim that
they have some evidence, and are thus trying to get the PSJ thrown out this way.
IBM sees this coming and wants to limit the 9th cc to that for which sco can not
show any evidence, and thus can not take to trial.

[ Reply to This | # ]

IBM Motion For Order Limiting Scope of 9th CC - PDF and text
Authored by: tknarr on Wednesday, February 23 2005 @ 10:45 AM EST

I think the reason for SCO wanting to broaden the interpretation of CC9 should be easy to spot. They can find their code in AIX, that's why IBM bought a SysV Unix license after all, but IBM never distributed AIX source code publicly and if they distributed it to anyone they almost certainly have all the proper non-disclosure paperwork on file. SCO has to show not only copied code but also disclosure to the public without the non-disclosures required by IBM's SysV license, so they're desperately trying to stitch together the AIX code (which has SysV code present) and Linux (which they can't find SysV code in but was distributed publicly). If CC9 only applies as far as the AIX code, then IBM has a slam-dunk case for not having violated the license and thus not having violated copyrights and SCO's license-termination argument gets shredded. That leaves SCO with only the Linux code to make their argument of improperly-copied code on, and we know how well they've done there.

[ Reply to This | # ]

predecessors in interest
Authored by: jim Reiter on Wednesday, February 23 2005 @ 10:47 AM EST


TSG has yet to show that it is a predecessors in interest
to the Unix software.

TSG claims to have acquired Unix from Santa Cruz
Operations, Inc, but the instrument of acquisition, The
Santa Cruz Operations, Inc./Caldera Reorganization
Plan/Merger Agreement with Exhibits has never been
produced by TSG.



The unanswered question still is, "What does TSG own and
how did TSG come to own it?"

[ Reply to This | # ]

IBM Motion For Order Limiting Scope of 9th CC - PDF and text
Authored by: Anonymous on Wednesday, February 23 2005 @ 10:47 AM EST
Am I wrong in thinking that a renewed motion for declaratory judgement on this
CC can be filed and ruled on as soon as discovery is complete? Sounds to me like
SCO's trying to broaden the scope of the CC so that such a motion wouldn't be
the slam-dunk it would be right now.

The only way I can think that they could achieve this would be to introduce new
claims that would require more discovery, but I'd hope that would be prohibited
anyway. On the other hand, from the text of this motion, it *does* sound like
that's what SCO's trying to do...

Perhaps the point is that they're trying to tie the resolution of this
almost-cooked claim to their brand new entirely un-dealt-with claim.

I guess we can hope that the Judges see this delay move as what it is and, at
the very least, make the "no dispositive motions until discovery's
over" limitation immune from this brand new claim's discovery.

[ Reply to This | # ]

A promise of things to come?
Authored by: Nivuahc on Wednesday, February 23 2005 @ 11:26 AM EST

Even assuming that SCO's reading of the text of IBM's Ninth Counterclaim is plausible, it makes no sense to require IBM to prosecute a broader claim when IBM has no interest, in this litigation, in doing so.
emphasis added

Is it just me or does that little aside indicate that IBM will, eventually, go after SCO for whatever it is that SCO are trying to expand upon... just not yet?

---
My Doctor says I have A.D.D... He just doesn't understand. It's not like... Hey! Look at that chicken!

[ Reply to This | # ]

Strategy
Authored by: jim Reiter on Wednesday, February 23 2005 @ 12:51 PM EST


What if TSG had put all its money behind IBM being willing
to negotiate a settlement at some point in time?

While betting on a negotiated settlement does not seem
like a good bet, it would make sense out of everything
that TSG has done. "Hang on a little longer and IBM will
throw a few hundred million dollars at us to make this go
away."

TSG should remember that anything that doesn't kill you
makes you stronger, as this applies to IBM. Time is now on
IBM's side.

There is a limit to human intelligence, there is no limit
to human stupidity.

[ Reply to This | # ]

Expanding scope is incompatible with limiting scope, PJ
Authored by: Anonymous on Wednesday, February 23 2005 @ 01:11 PM EST
Sorry PJ, but IBM doesn't need to limit the scope of it's own Counter Claim if
SCO were trying to expand it.
It would just need to clearly explain what the scope is.

[ Reply to This | # ]

Judges' willing suspension of disbelief?
Authored by: jbb on Wednesday, February 23 2005 @ 01:42 PM EST
I wonder how long the judges will continue to pretend to believe that
SCOg is acting in good faith. I sure hope that they are not required to
do so indefinitely in order to prevent possible appeals.

The judges granted SCOg first a deep sea fishing license and more
recently a license for wholesale underwater excavation. All based on
not one tiny shred of evidence. If it was IBM who had started this
court battle or if IBM had been paid by AT&T (and not the other way
around) then maybe, just maybe, some of this could be justified.

It seems to me that the judges are not just bending over backwards
to please, SCOg, they are also doing backflips, cartwheels and sitting
up and begging. I don't see how this is good for anyone. It certainly
doesn't seem good for the legal system.

The problem is that a compromise halfway between the truth and a
big whopping lie is still a lie. SCOg is certainly ready, willing and able
to keep feeding the judges big whopping lies indefinitely. This whole
fiasco will never end as long as the judges keep compromising the
truth. And the longer they let it stretch out, the more foolish they
will look when it is all over.

---
SCO cannot violate the covenants that led to and underlie Linux without
forfeiting the benefits those covenants confer.

[ Reply to This | # ]

Another Guess: IBM M. For Order Limiting Scope of 9th CC
Authored by: webster on Wednesday, February 23 2005 @ 01:43 PM EST
IBM had a license to use and change their AIX and Dynix
and then distribute it, their Unix activity.

SCO gave them notice of their alleged violation and gave
them 100 days to cure because of IBM's Linux activity.

IBM ignored them and continued to distribute and use AIX
and Dynix claiming that they had a right to do so and that
they did not violate any license or copyright by doing so.
And that some or all of SCO copyrights are invalid.

SCO claims that IBM is violating SCO copyright by
continuing to distribute AIX and Dynix, IBM Unix activity
after their termination notice.

SCO has abandoned their copyright claims in Linux and rely
on their strained derivative contracts rights embodied in
that one sentence in their Unix license.

IBM therefore denies copyright infringement by continuing
to distribute AIX and Dynix. Their CC 9 says that the
mere distribution of AIX and Dynix does not infringe SCO
Copyright or violate IBM's license. SCO's alleged
violation of the license does not exist because they can
not show any copyright infringement in Linux by any AIX or
Dynix code. (It goes hand in hand with IBM's M for PSJ
that IBM's Linux activities do not infringe any valid SCO
copyrights if they have any.)

SCO probably fought this claim by their usual argument of
their "broad derivative contract copyright." This is a
broad scope of coarse.

IBM asked SCO to stipulate that distributing AIX and Dynix
does not infringe any SCO copyright if it is done
according to the license, as it always has been. If there
is a valid termination of the license, then infringement.
If there is no valid termination, then no infringement.

This clear limited scope of these claims does not favor
SCO. They can not be reasonable when reason does not help
them. IBM asked them to stipulate to this reasonability
and they of course declined. So IBM is informing the
judge of the limited scope of this claim and thereby the
irrelevance of the overlength SCO responses.


---
webster

[ Reply to This | # ]

It's easy to explain - Here is why SCO wants to redefine IBM's 9th counterclaim
Authored by: Anonymous on Wednesday, February 23 2005 @ 02:14 PM EST
IANAL, but here is IMHO why SCO wants to redefine IBM's 9th counterclaim.

(Sorry I haven't read any of the others' comments yet, so forgive me, if I'm repeating something that others may have seen)

A. SCO sues IBM for copyright infringements in continued distribution of AIX (SCO's 5th counterclaim)

B. IBM sues for declaration of non-infringement (IBM's 9th counterclaim)

C. SCO now wants to amend their complaint (3rd amended complaint) to add a 10th copyright cause of action, for copyright infringements in AIX related to Monterey, or AIX on PowerPC, or something like that.

D. IBM presumably produced a strong memo, opposing SCO's addition of 10th cause of action, at this late stage in the case.

E. In their reply memo: SCO now argues that their new proposed 10th claim, is the "flip side" of IBM's 9th counter claim (item B above), and must therefore be included in the case. Clearly this did not make this argument in step C - hence F(ii) below.

F. IBM wants to establish that IBM's 9th counterclaim is not the flip side of SCO's newly added 10th counterclaim, hence, IBM take two actions:
F(i) They file this memo, limiting the scope of IBM's 9th counterclaim.
F(ii) They ask to be able to file a sur-reply to E.


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

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