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IBM's Unsealed Opposition to SCO's Motion to File 3rd Amended Complaint
Wednesday, June 29 2005 @ 01:01 PM EDT

Here is IBM's Unsealed Opposition to SCO's Motion for Leave to File a Third Amended Complaint Pursuant to Federal Rules of Civil Procedure 15(a) and 16(b). In it, IBM says, enough is enough. SCO is just gaming the courts, seeking to delay a final determination in the case, so as to spread FUD.

The evidence will establish, IBM says, that there is no merit to SCO's new claim it wishes to file that IBM infringed SCO's purported UNIX copyrights by copying IBM's "AIX for Power" operating system.

It then lists all the reasons SCO's proposed new claim has no merit. First, IBM has a valid license to the UNIX source code included in its AIX products, "a license obtained as part of the Joint Development Agreement entered into by IBM and SCO's alleged predecessor-in-interest, the Santa Cruz Operation, Inc. ("Santa Cruz") in 1998."

SCO's motion was filed 8 months after the deadline set by the Court for such motions, more than 19 months after it filed its original complaint. SCO must abide by Rule 16(b) and 15(a) of the Federal Rules of Civil Procedure. 16(b) says a court should not modify a scheduling order except upon a showing of good cause; 15(a) says the court may deny leave to amend where there is a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, or futility of the proposed amendment.

SCO can't meet 16(b) because it hasn't shown good cause. It disingenuously claims to have only recently discovered facts supporting its new claim, but it knew these facts long ago, before it even filed its original complaint, as materials SCO produced to IBM in discovery and publicly available industry reports and IBM publications at the time AIX for Power was released in 2001 make clear.

It can't meet 15(a) because SCO unduly delayed, given the above knowledge, plus its motive is just to prolong discovery, IBM would be prejudiced by adding a new claim at the 11th hour, just before discovery was set to close in a case pending already more than a year and a half, and SCO's new claim is futile anyway, because they aren't bringing it in the right place (according to the contract) and it's barred by the applicable statute of limitations.

SCO has not shown it even owns valid copyrights, for starters, and it has to in order to prevail, as well as having to show IBM copied protectable elements of its copyrighted work. A footnote reminds the court that Novell challenges SCO's copyright ownership claims.

As to the latter, IBM offers a Shaughnessy declaration that the JDA "specifically gave IBM a royalty-free license to include such UnixWare/SV4 code in its products, including AIX for Power", and a memo, dated September 10, 1998 from Geoff Seabrook, Santa Cruz's Senior VP for Development, memorializing the parties' understanding on that point:

Both companies [Santa Cruz and IBM] will exchange technology to be used in [Santa Cruz's] UnixWare 7 on the IA 32 and [IBM's] AIX on PPC [Power]. The purpose of these exchanges is to create a compatible family of products, together with the resultant IA64 product [that was to be developed jointly by Santa Cruz and IBM]. It is intended that the efffective value of these exchanges will be equivalent, and that no royalties will be due to either company as a result of these exchanges. The zero royalty agreement is also to allow our engineering teams to freely select the best available technology, without worrying about any royalty impact.

Even if there were no express permission, SCO was well aware, or should have been, that IBM did in fact incorporate the code into the AIX for Power product. The documents SCO turned over to IBM in discovery include the following:

1. An undated joint Santa Cruz/IBM document entitled "Genus: an IBM/SCO UNIX Project Marketing Plan Development" which outlined the parties' intent to create a family of UNIX products, UnixWare, AIX for Power and IA64 (the Monterey product). The document says that the UnixWare/SV4 and AIX for Power products were to be "significantly enhanced by cross pollination of technologies".

2. A November 4, 1998 Santa Cruz presentation on Project Monterey that stated that the plan was to create a "single UNIX product line that spans IA-32 (that's UnixWare/SVR4), IA-64 (that's Monterey) and IBM Power processors (that's AIX for Power). The presentation said that Santa Cruz would be "supplying IBM with UnixWare 7 APIs and technologies for [inclusion in] AIX [for Power]".

3. "Monterey-64 Release 1 Product Requirement Specification", released by SCO and IBM on February 19, 1999, that states that one of the principle objectives of Project Monterey was to develop a family of UNIX products, including IBM's AIX for PowerPC and that the Monterey product would "maximize the amount of common source code shared with AIX PPC."

4. A document "IBM-SCO Family Unix Technical Proposal" dated September 2, 1998 that sets forth specific "Technology from U[nix]W[are]" intended to be incorporated into AIX for Power.

5. An October 1999 presentation by IBM's UNIX Marketing Program Director (again, this is in the list of documents SCO had in their possession and turned over to IBM in discovery) that noted that the partners' intent was to "aggressively grow and enhance [the] AIX-Power offering" by including "[c]ontributions from SCO's UnixWare."

IBM lists other documents created by Santa Cruz that SCO didn't produce in discovery which all reflect the same truth: that SCO knew or should have known that Santa Cruz and IBM intended a single UNIX product line that ran on IA-32, IA-64 and Power:

1. A 1999 Santa Cruz-drafted joint statement with IBM that included the following wording: "IBM is providing [Santa Cruz] with AIX technology for inclusion in UnixWare and [Santa Cruz] is providing UnixWare technology to IBM for inclusion in AIX."

2. A February 2000 presentation prepared for the Santa Cruz Partner Conference in which Santa Cruz's Tamar Newberger stated that "[e]nhancements from SCO's UnixWare" would be included to "aggressively grow and enhance [the] AIX-Power offering".

3. An August 10, 2000 email from John Boland of Santa Cruz, which distributed internally a press release prepared by IBM about AIX 5L, the AIX release that included SVR4 technology. The release clearly said that AIX 5L for Power, like AIX 5L for IA-64, contained "key technologies" from UnixWare and UNIX System 5 [SVR4], and it lists the SVR4 printing subsytem by name.

4. A May 2001 webpage for AIX 5L jointly sponsored by IBM, Intel and Santa Cruz which states that AIX 5L for IBM Power combined AIX "with the best technologies from [Santa Cruz's] UnixWare operating system."

5. An undated joint Santa Cruz/IBM document that said that both AIX for Power and AIX for IA-64 had the "[UnixWare] SVR4 print system."

So SCO knew, or should have known, IBM points out, at least 3 years ago about AIX for Power using SVR4 tech, so they can't show good cause for their delay. They even disclosed some of the internal documents to the media back in August of 2004, improperly in IBM's view. Yet they come to court claiming they just learned about it and on that basis claim they should be allowed to amend their complaint once again, but the evidence belies their assertion.

That is just the beginning. IBM then lists five more examples of publicly available product announcements and industry reports issued years ago that reflect the inclusion of UnixWare/SVR4 code in AIX for Power, and 6 product announcements and manuals published openly by IBM that were equally explicit.

Thus, even if IBM didn't have a license to use that code, SCO can't pretend it didn't know or couldn't have known with the most basic due diligence. So it "has failed abjectly" to demonstrate good cause for its untimely filing, and its claim that it only just learned of inclusion of SVR4 in AIX for Power is "unquestionably and demonstrably false."

Rule 15(a) says the court can deny a motion to amend where there is a showing of undue delay. For that matter, all three other factors in the Rule also weigh against SCO, undue prejudice to IBM, bad faith or dilatory motive, and futility of the proposed amendment.

That's legalese for "SCO waited too long, has no good reason for not including this junk in the first complaint, is lying about when it first learned about these facts, is just trying to delay a final outcome, and can't win even if you let them amend now." I wonder if the Court has finally understood that accepting what SCO says at face value is unwise? If not before now, surely this filing ought to make it very clear. IBM tells the court that "it has been SCO's strategy from the outset of this litigation to seek to delay the proceedings, apparently to further the fear, uncertainty and doubt that SCO has created concerning Linux and IBM's products and services. The instant motion is just part and parcel of SCO's delay tactics." It then lists all the SCO motions and requests for extended discovery and notes that this motion to amend came just two weeks after the Court denied SCO's "emergency" request for a scheduling conference, at which SCO said it intended to propose yet another extension of discovery. IBM does not view that as a coincidence. It views it that SCO is seeking to gain an extension still, just in a new way. If the court grants SCO's motion, IBM predicts they will shortly thereafter ask for more delay for more discovery.

In short, IBM accuses SCO of gamesmanship, and it uses that word. The courts are not really set up for such tactics, and it has taken a while for the court to wake up to what it is being asked to be a party to. Further complicating the picture is that the system assumes good faith on the part of a plaintiff in a civil action, and all the delays are part of a system that tries to make sure justice is really done and that a plaintiff has a fair chance to present its case. But I hope Judge Kimball gives due weight to making sure he is not manipulated into becoming a party to such a misuse of his court as IBM posits.

"SCO should not be allowed to continue to perpetuate the fear, uncertainty and doubt it has created in the marketplace concerning Linux simply by devising new ways to delay the resolution of this case," IBM writes, and concludes, "We respectfully submit that enough is enough. SCO should be required to complete the discovery process concerning the claims and counterclaims that were timely pled in this case. Its consistent efforts to delay and derail that process should finally be put to rest."


  


IBM's Unsealed Opposition to SCO's Motion to File 3rd Amended Complaint | 184 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
corrections here
Authored by: rhaas on Wednesday, June 29 2005 @ 01:28 PM EDT
if any

[ Reply to This | # ]

Off-Topic here, please
Authored by: overshoot on Wednesday, June 29 2005 @ 01:31 PM EDT
Links, clickable, HTML, check -- the usual

[ Reply to This | # ]

Off Topic -- BSA opens branch in Brazil, known as IBL
Authored by: Anonymous on Wednesday, June 29 2005 @ 01:33 PM EDT
http:/ /www.computerworld.com/printthis/2005/0,4814,102853,00.html

Is this re-taliation? What do they mean taxes aren't paid on 80 percent of computers? How much tax can you put on a 500 dollar machine where the software is 200, if you don't buy the MS strongarmed OS? Is this just another way of forcing MS phone home software on everyone?

[ Reply to This | # ]

IBM's Unsealed Opposition to SCO's Motion to File 3rd Amended Complaint
Authored by: Anonymous on Wednesday, June 29 2005 @ 01:34 PM EDT
IBM, as usual, makes perfect sense. Let's hope it resonates with Judge K.

[ Reply to This | # ]

The entire suit, explained.
Authored by: RealProgrammer on Wednesday, June 29 2005 @ 02:15 PM EDT
Santa Cruz and IBM were working together on a compatible UNIX. (Maybe IBM
planned to buy oldSCO along with Sequent.) Caldera bought oldSCO for too much
money. IBM decided they didn't like Caldera, and (probably coincidentally) would
like to push Linux instead of AIX. The Caldera purchase gave them a way out of
Monterey.

Caldera, being a bunch of dimwits, and also being in tight financial straits,
decided to force IBM to buy them off. They were aware that others in the
industry, such as Sun and Microsoft, would pay to watch.

They didn't count on IBM's response.

Nor did they count on PJ.



---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

This is an interesting comment
Authored by: rgmoore on Wednesday, June 29 2005 @ 03:10 PM EDT

I found the following comment from IBM to be particularly powerful in showing SCO's dishonesty:

Tellingly, in support of its contention that the addition of this new copyright infringement claim would not require extensive additional discovery, SCO purports in its current motion (and in its proposed complaint) to have already analyzed its own UnixWare/SVR4 code and IBM's AIX code and identified 245,026 specific lines of "copied and derived code" from UnixWare/SVR4 in IBM's AIX for Power Version 5.1.0 and 260,785 specific lines of "copied and derived code" from UnixWare/SVR4 in IBM's AIX for Power Version 5.2.0. At the same time, of course, SCO continues to maintain- both in IBM's pending motion for summary judgment on IBM's Tenth Counterclaim and in support of SCO's discovery motions pending before Magistrate Judge Wells- that SCO is unable, without substantial additional discovery from IBM and potentially thousands of additional man-years of expert work, to identify the specific lines of "copied and derived code" from Unix that it claims is present in Linux.

---
Behind every sleazy lawyer, there's a sleazy client.

[ Reply to This | # ]

IBM has a contract for Power?
Authored by: Anonymous on Wednesday, June 29 2005 @ 03:35 PM EDT
Or are they just saying we didn't need a contract, since we were partners (at
the time)?

[ Reply to This | # ]

Conclusion: "...enough is enough."
Authored by: Anonymous on Wednesday, June 29 2005 @ 03:50 PM EDT
I love that line.

[ Reply to This | # ]

Transcription in progress
Authored by: Laomedon on Wednesday, June 29 2005 @ 04:07 PM EDT
I'll take a crack at converting it to text.

[ Reply to This | # ]

Documents not produced in discovery?
Authored by: bmcmahon on Wednesday, June 29 2005 @ 04:09 PM EDT
Footnote 5 on page 7:
Other documents created by Santa Cruz (but not produced by SCO) also reflect the understanding that UnixWare/SVR4 code was going to be included in the AIX for Power product.
Does this suggest that (shock, horror, surprise) tSCOg has been less than fully responsive to IBM's discovery requests?

I have this funny hunch that, somewhere in Armonk, there is a very fat (and growing) file folder somewhere labeled "Payback", and tagged with the mailing addresses of several state Bar Associations, for when this farce is finally over.

[ Reply to This | # ]

Smart move by SCO
Authored by: Anonymous on Wednesday, June 29 2005 @ 04:53 PM EDT
I think this whole thing of trying to get a case around "SVR4 in AIX for
Power" is really smart by SCO. Before you think this is a flame, let me
explain.

1) SCO knows it will loose, that it will loose badly, and that all is left to do
is damage control for their CV and future jobs.

2) When SCO loses, it will file for bankruptcy.

3) The only thing the officers and lawyers involved need to do is have a story
ready to "explain" what happened.

4) This story is that they found a lot of code (but dont mention that this is
SRV4 in AIX for Power), but that due to technicalities (too late, wrong venue)
they lost the case.

Perfect way out for the people involved in SCO.

[ Reply to This | # ]

IBM's Unsealed Opposition to SCO's Motion to File 3rd Amended Complaint
Authored by: tredman on Wednesday, June 29 2005 @ 05:36 PM EDT
I don't know if anybody's mentioned this up until now, but I have a theory that
occurred to me while reading the memo.

Openserver was just recently released with a bevy of open-source software
attached to it. Could SCOX's wish to amend the complaint be a way for them to
deflect the public perception of the case away from F/OSS and towards IBM
directly? It seems by their request for amendment, that they're trying to say
"Look, we're not just targeting Linux here, we're going after all kinds of
stuff that IBM did wrong. Oh, and buy our stuff which has all kinds of
open-source software in it."

Allegedly.

I normally wouldn't have given a second thought to it all, but the timing of the
two events seems a little uncanny. Add to this all of the hoo-hah regarding
their newest iteration of the LKP, and the (limited) press that Daniel Wallace
is getting against free software, and it just seems that too many squirrelly
things are happening at once to try and [re|mis]direct public attention.

But then again, I guess that's the name of the game for SCOX.

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

Prediction
Authored by: Anonymous on Wednesday, June 29 2005 @ 09:12 PM EDT
Just like before, SCO are going to be granted this nonsense. It seems that Judge
K is sometimes overly careful when it comes to SCO. But, this may be a good
thing (on appeal)...

[ Reply to This | # ]

The key phrase to my eye
Authored by: Anonymous on Wednesday, June 29 2005 @ 10:40 PM EDT
"alleged predecessor in interest". IBM seems to be saying there is NO
proof of successor status, not just that there is some proof, but that IBM
disagrees with it.

If true, this is a huge hurdle for SCOG. They have to show what they purchased,
that it includes copyrights, that those *very same* copyrights can somehow
survive the "fall-down on transfer to another company" that is in the
original Novell / trueSCO agreements, AND that at the same time, license,
contract, and co-op plans of trueSCO and IBM are invalid.

It seems so preposterous that I can only wonder what is wrong with the
lame-brained Utah judges who have not asked ANY of these questions. Are they
really THAT stupid? Any one of these points should kill the entire chain and
the case, yet neither Kimball nor Wells have addressed them, AT ALL? Yet people
here still think they're competent? HOW?

[ Reply to This | # ]

Tweedle dee or tweedle dum
Authored by: webster on Thursday, June 30 2005 @ 01:57 AM EDT
There are good reasons to deny the Third Amendment and there are good reasons
to admit the amendment. This is totally up to the discretion of the judge and
can only be reversed if he abuses his discretion. He can't.

SCO is clearly playing for time. They probably don't really want this stuff
in the case. It is weak and provides an easy target for IBM. The Nazgul are
rather convincing that they have a license and SCO's claim would be futile for
contractual reasons. Without mentioning it, it is also clear that SCO knew
about it and acted like they knew IBM had a license.

IBM actually uses the "FUD" words in accusing SCO of attacking
Linux. And why would SCO, a Linux Company, attack Linux? To inspire a greater
settlement, to destroy Linux, to do someone else's bidding, all of the above.
With the demise of SCO, that "someone else" is in for a good sniffing
by the Nazgul. I can't wait until next year.

---
webster

[ Reply to This | # ]

SCOG's Unsealed Documents
Authored by: rsteinmetz70112 on Thursday, June 30 2005 @ 11:28 AM EDT
SCOG release a list of SCOG documents they and IBM had agreed to unseal.

Have any of those documents been released?

IBM's documents are trickling out little by little, without any announcement.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

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