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The Remaining IBM Counterclaims
Saturday, October 08 2005 @ 01:29 PM EDT

Part of what Groklaw does is give a helping hand to journalists who are looking for some facts or need a document and can't find it. So, in that spirit, and because I notice some seem to be confused and think that IBM has dropped its *case* against SCO, instead of just its patent counterclaims, here are the remaining counterclaims IBM still has pointed directly at SCO's heart:
  • FIRST COUNTERCLAIM - Breach of Contract
  • SECOND COUNTERCLAIM - Lanham Act Violation
  • THIRD COUNTERCLAIM - Unfair Competition
  • FOURTH COUNTERCLAIM - Intentional Interference with Prospective Economic Relations
  • FIFTH COUNTERCLAIM - Unfair and Deceptive Trade Practices
  • SIXTH COUNTERCLAIM - Breach of the GNU General Public License
  • SEVENTH COUNTERCLAIM - Promissory Estoppel
  • EIGHTH COUNTERCLAIM - Copyright Infringement
  • NINTH COUNTERCLAIM - Declaratory Judgment of Noninfringement of Copyrights (AIX, Dynix)
  • TENTH COUNTERCLAIM - Declaratory Judgment of Noninfringement of Copyrights (Linux activities)
  • FOURTEENTH COUNTERCLAIM - Declaratory Judgment

That's OK. Journalists can't know everything. The law is a speciality. By the way, that isn't a complete list of all counterclaims SCO is now facing. We should probably add the 7 Novell counterclaims too:

  • FIRST CLAIM FOR RELIEF - Slander of Title
  • SECOND CLAIM FOR RELIEF - Breach of Contract: §§ 1.2(b) and 1.2(f) of the Asset Purchase Agreement
  • THIRD CLAIM FOR RELIEF - Breach of Contract: §§ 1.2(b) & 4.16(a) of the Asset Purchase Agreement
  • FOURTH CLAIM FOR RELIEF - Declaratory Relief: Rights and Duties under § 4.16(b) of the Asset Purchase Agreement
  • FIFTH CLAIM FOR RELIEF - Declaratory Relief: Rights and Obligations Under APA's Covenant of Good Faith and Fair Dealing
  • SIXTH CLAIM FOR RELIEF - Restitution/Unjust Enrichment
  • SEVENTH CLAIM FOR RELIEF - Accounting

    • Not to ruin SCO's Saturday or anything, but after all that, SCO still faces Red Hat's claims, which are merely on hold, waiting for IBM to finish. And as SCO points out in its SEC filings, it is possible the company could face regulatory issues down the road. I'm sure they are very busy right now making sure they didn't misrepresent to the SEC that IBM was violating Judge Wells' discovery orders, now that Judge Wells has told them in a public hearing that IBM correctly understood her orders, not SCO, and that IBM, contrary to SCO's slurs, fulfilled its discovery obligations regarding nonpublic Linux materials.

    Who else did SCO tell that tall tale to? Well, if I read between the lines, I'm thinking maybe . . . Maureen? Her latest account of what might happen at yesterday's hearing, written in advance, is wrong in every detail I noticed -- and hilariously funny as a result. I thought about making fun of it, but arguing against it is my better judgment, which is clear that ignoring her works best. Don't all run to her website, will you? We wouldn't want anyone seeing a lot of traffic that doesn't happen normally and pretending it's a DOS attack. I have had the feeling for some time that SCO would like to manufacture such an incident. I think that is why they attack me so viciously, and their running dogs too, to get a reaction from you, so they can blame the Linux community for being "lawbreakers". No one from Groklaw would break the law, I know, but do be prudent about visiting sites you know to be on the dark side, so no one can manufacture an incident.

    Still, there is one thing she says in the article that I think belongs in our permanent history of the SCO saga. Here it is, from her mistitled rag, Linuxgram -- and say, while those trademark enforcers are at it, may I inquire if this is a proper use of the trademark, considering all she ever seems to do is attack Linux? Might that confuse the public? Here the one piece worth putting in our collection, the suggested motive for SCO's legal shenanigans:

    *SCO Wants Court To Slap IBM Around*

    SCO on Wednesday filed a follow-up brief to its latest motion to compel discovery from IBM and asked the court to sanction IBM for failing to produce discovery that SCO claims IBM has been repeatedly ordered by the court to turn over.

    SCO basically accuses IBM of lying to the court - and to SCO - about its production of documents.

    Sanctions can be monetary or, as SCO might like better, the sacrifice of certain claims like, say, the allegation that Linux didn't come from AIX and Dynix.

    So, that was the plan -- to get IBM sanctioned, so it would lose its ability at trial to assert that Linux doesn't come from AIX or Dynix? If so, then SCO has gone mad or is so desperate it is wildly flailing about, willing to try any crazy strategy, and frankly, if that is their best idea for a plan, things are looking bleak for SCO in the legal department. Then there's the ethics department.

    As you know, nothing like that happened at the hearing. IBM wasn't "slapped down". Instead, the judge said IBM had correctly understood her orders and had complied. SCO lost its motion, and the judge told SCO, in essence, to cut it out.


      


    The Remaining IBM Counterclaims | 385 comments | Create New Account
    Comments belong to whoever posts them. Please notify us of inappropriate comments.
    Off-topic here
    Authored by: SpaceLifeForm on Saturday, October 08 2005 @ 01:42 PM EDT
    Please post links in html.

    [ Reply to This | # ]

    Corecsions -> Corrections Here
    Authored by: bbaston on Saturday, October 08 2005 @ 01:43 PM EDT
    so PJ can find them in 1 place...


    ---
    Ben, Groklawian in training
    IMBW, IANAL2, IMHO, IAVO
    imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
    Have you donated to Groklaw this month?

    [ Reply to This | # ]

    The 8 Remaining IBM Counterclaims
    Authored by: Anonymous on Saturday, October 08 2005 @ 01:44 PM EDT
    I have already seen some articles that made it sound like all the counterclaims
    against SCO were dropped. I am glad to see you lay out the counterclaims and
    problems SCO still faces, in addition the lack of evidence for its own claims.

    [ Reply to This | # ]

    The 8 Remaining IBM Counterclaims
    Authored by: Anonymous on Saturday, October 08 2005 @ 01:47 PM EDT
    Mr. McBride meet Mr. SEC and Mr. FBI, Mr. SEC and Mr. FBI meet Mr.
    McBride................

    [ Reply to This | # ]

    Linuxgram Article Taken Down
    Authored by: rsteinmetz70112 on Saturday, October 08 2005 @ 01:54 PM EDT
    I don't think you need to worry about the Linuxgram article. It appears to have
    been taken down.

    I hope you saved a copy PJ.

    When I follow the link I get " The page you tried to access does not exist
    on this server."

    ---
    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 | # ]

    The 8 Remaining IBM Counterclaims
    Authored by: Anonymous on Saturday, October 08 2005 @ 01:55 PM EDT
    BTW: If you are going to ruin SCO's weekends like this, perhaps you should at
    least post some useful information for them like a list of countries without
    extradition treaties that Darl McBride can move to soon. Getting arrested,
    indicted, convicted and incarcerated in the U.S. would be so unpleasant for such
    a nice guy.

    [ Reply to This | # ]

    Amazing, blatant, and unreported except here
    Authored by: bbaston on Saturday, October 08 2005 @ 02:00 PM EDT
    "Sanctions can be monetary or, as SCO might like better, the sacrifice of certain claims like, say, the allegation that Linux didn't come from AIX and Dynix."

    All a ploy to circumvent the law and harm Linux, yet not one main press report about the gaul of tSCOg and its legal failure yesterday.

    ---
    Ben, Groklawian in training
    IMBW, IANAL2, IMHO, IAVO
    imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
    Have you donated to Groklaw this month?

    [ Reply to This | # ]

    Maureen gets something right
    Authored by: BigBadBob on Saturday, October 08 2005 @ 02:00 PM EDT
    Maureen notes: "Magistrate Judge Brooks Wells, who's been in charge of sorting out the discovery in the mammoth $5 billion suit, didn't wait for IBM to object. Instead she acted preemptively, a breach of the usual court protocol, suggesting to some that her patience may be wearing a bit thin."

    She was absolutely right about that: The Judge's patience with SCO is wearing thin!

    What? That isn't what she meant? Oh. Never mind.....

    [ Reply to This | # ]

    The 8 Remaining IBM Counterclaims
    Authored by: DeepBlue on Saturday, October 08 2005 @ 02:06 PM EDT
    It's only fair to point out that Quatermass was the first to speculate this was
    their tactic although Judge Wells seems to be on to it as well :-)

    ---
    All that matters is whether they can show ownership, they haven't and they
    can't, or whether they can show substantial similarity, they haven't and they
    can't.

    [ Reply to This | # ]

    Wondering about redhat and the Novell case
    Authored by: skidrash on Saturday, October 08 2005 @ 02:07 PM EDT
    If no copyrights were assigned from Novell to SCOldera, then what stops RedHat
    from asking the judge to rule on all the copyright-related statements that
    SCOldera made?

    Surely, at that point, nothing stands in the way of the judge ruling on those.


    [ Reply to This | # ]

    At least Maureen has no ad revenue from her site.
    Authored by: Anonymous on Saturday, October 08 2005 @ 02:12 PM EDT
    At least Maureen makes no money from my reading of her article on
    Linuxgram.com. She has to incur the cost of the bandwidth.

    The article was laughable.

    SCO was declared WRONG and IBM was declared RIGHT by Judge Wells. IBM even
    gets to write the court order for her to sign. How's that for being a teacher's

    pet?

    [ Reply to This | # ]

    Too Daft a claim to consider *NOT*
    Authored by: SilverWave on Saturday, October 08 2005 @ 02:15 PM EDT

    "Sanctions can be monetary or, as SCO might like better, the sacrifice of
    certain claims like, say, the allegation that Linux didn't come from AIX and
    Dynix."

    I had seen the speculation and considered it right up there with the UFO nuts
    :/

    Truth is stranger than fiction :)




    ---
    "They [each] put in one hour of work,
    but because they share the end results
    they get nine hours... for free"

    Firstmonday 98 interview with Linus Torvalds

    [ Reply to This | # ]

    SMOG
    Authored by: kawabago on Saturday, October 08 2005 @ 02:38 PM EDT
    The breath of MOG. Need I say more?


    ---
    TTFN

    [ Reply to This | # ]

    Future Reading
    Authored by: Anonymous on Saturday, October 08 2005 @ 02:41 PM EDT

    I don't know about anyone else, but I am SO looking forward to reading the transcript of the hearing.

    RAS

    [ Reply to This | # ]

    Only Eight?
    Authored by: Steve Martin on Saturday, October 08 2005 @ 03:23 PM EDT
    PJ, I'm a bit confused as to why you only list these eight, and don't list the
    (now infamous) CC9 and CC10 in this list.


    ---
    "When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
    Night"

    [ Reply to This | # ]

    CC9 and CC10 still exist and are the most important
    Authored by: Anonymous on Saturday, October 08 2005 @ 04:06 PM EDT
    NINTH COUNTERCLAIM: Declaratory Judgment of Noninfringement of Copyrights
    (in IBM's AIX and Dynix activities)

    TENTH COUNTERCLAIM: Declaratory Judgment of Noninfringement of Copyrights
    (in IBM's Linux activities)

    These are the most important because they FORCE SCO to show ANY evidence to
    the contrary. SCO is the one who has to do the hard work to find evidence. As

    Judge Kimball declared, SCO has thus far NO evidence.

    [ Reply to This | # ]

    SCO-IBM: The Movie
    Authored by: Anonymous on Saturday, October 08 2005 @ 04:33 PM EDT
    SCO's hilarious fumbling reminds me of a Marx Brothers movie.

    Harpo is the CEO of SCO, Chico comes up with the scheme, and the trial lawyer
    representing SCO is played, of course, by Groucho.

    Perhaps we could write a script and get a movie deal.

    [ Reply to This | # ]

    How many of the above can be targeted at individuals, rather than the corporate entitiy?
    Authored by: Anonymous on Saturday, October 08 2005 @ 05:58 PM EDT
    Unless SCO suddenly come up with their "millions of lines of infringing
    code" by Xmas it looks like, as a company, the only question is how big a
    smoking crater IBM and others are going to leave behind after they're done with
    them.

    So maybe the best entertainment is going to come from those charges that can be
    laid directly against Darl and his mates.

    The Lanham Act stuff comes under that heading I think? And anything that the SEC
    get interested in.

    What else should be keeping them awake at night?

    [ Reply to This | # ]

    The Remaining IBM Counterclaims
    Authored by: Anonymous on Saturday, October 08 2005 @ 05:58 PM EDT
    Where is the SEC? How are they not involved at this point???

    The longer the SEC waits to get involved, the more damage this will have on the
    credibility of our stock markets.

    [ Reply to This | # ]

    SOG article
    Authored by: Anonymous on Saturday, October 08 2005 @ 06:16 PM EDT
    So yes, I did have to read the article.

    Funniest part: IBM in its reply brief of September 26 – and of course big companies are famous for dragging their feet during discovery hoping their little opponents will run out of both time and money – claims that SCO never asked it for the "development history of Linux" and that the court never specifically ordered it to produce such a thing although SCO's brief defines the "development history of Linux" as merely "both code and related documentation." (My emphasis)

    Who is MOG refering to, IBM or SCO? :)

    [ Reply to This | # ]

    It's nice to see Maureen back - she's always entertaining
    Authored by: Anonymous on Saturday, October 08 2005 @ 06:37 PM EDT

    Well, except for that little episode of stalking PJ, being denounced by half the
    online community, having her articles removed from dozens of online magazines,
    gaining general pariah status ...

    Can't make up my mind whether her sudden re-emergence means that SCO were
    confident about getting at least some of their motion granted, and wanted
    maximum publicity, or knew they were going to lose and wanted to get a head
    start on the misinformation.

    Tricky call. Opinions?

    [ Reply to This | # ]

    wait, they dropped something?
    Authored by: jig on Saturday, October 08 2005 @ 06:47 PM EDT

    i thought that IBM just offered to drop the patent infringment claims in
    exchange for the number of declarations to not go up... i was under the
    impression that they hadn't actually dropped the claims since SCOs motion was
    denied AND 10 additional depos were doled out...

    [ Reply to This | # ]

    The Remaining IBM Counterclaims
    Authored by: Jaywalk on Saturday, October 08 2005 @ 09:21 PM EDT
    Who else did SCO tell that tall tale to? Well, if I read between the lines, I'm thinking maybe . . . Maureen? Her latest account of what might happen at yesterday's hearing, written in advance, is wrong in every detail I noticed -- and hilariously funny as a result.
    Reading it after Wells' ruling is pretty hysterical. I'm wondering if that might be why she wrote it in advance. All she's reporting on is the filing, not SCO's day in court. As a result, she can put a heavy pro-SCO spin on the story by taking a skeptical tone with IBM's filings and taking SCO's as simple truth. If she's playing solely to the audience which reads only O'Gara's rag, it lets her continue to paint a rosy future for SCO.

    Once Wells made a ruling, of course, there's no spin possible. SCO lost, IBM won. I'll bet she doesn't report on the hearing at all.

    ---
    ===== Murphy's Law is recursive. =====

    [ Reply to This | # ]

    The Remaining IBM Counterclaims
    Authored by: Bill The Cat on Saturday, October 08 2005 @ 11:36 PM EDT
    Speaking of Novell... When is their response due?

    ---
    Bill Catz

    [ Reply to This | # ]

    Discovery is not Oer
    Authored by: Anonymous on Sunday, October 09 2005 @ 01:39 PM EDT
    I would like to point out one fundamental problem to all:

    Discovery IS NOT over.

    [ Reply to This | # ]
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