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Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Wednesday, September 27 2006 @ 02:36 AM EDT

Now that IBM has filed motions for summary judgment regarding all of SCO's claims, it's obvious what one purpose of filing such motions would be -- to win without having to bother with a trial. But since winning 100% of all the summary judgment motions you file would probably put your firm in the Guinness Book of World Records, what else might be the benefit of filing them?

Ask yourself: What is the most annoying aspect to this case so far? I hear you say, the fact that SCO has been unwilling or unable to be specific. And that is a secondary purpose of filing summary judgment motions. I was reminded of this by an email from Marbux, and I asked if I could share it with you. He agreed I could, so here's his explanation, which I'm sure will help you to understand that win or lose, IBM comes out ahead. But I'll let him explain.

Marbux:

Pam, as you are writing about the flood of dispositive motions just filed, you might consider prominently linking to the Federal Rules of Civil Procedure and Rules of Evidence in each article so folks have them handy. They should lead to further discussion of the issues involved; at least some readers will be checking rules cited in the briefs. (As to the Rules of Evidence, recall that a motion for summary judgment must be opposed with evidence that would be admissible at trial. There undoubtedly will be resort to the Rules of Evidence in the briefs.

It might also be good to remind folks of a few key points about the summary judgment process:

1. Summary judgment briefing is where the rubber hits the road on production of evidence. Whether IBM wins its motions or not, SCO must finally identify enough of its evidence to demonstrate a genuine dispute over material facts. So regardless of winning its motions, IBM wins valuable discovery through these motions.

2. Summary judgment briefing also forces SCO to end its shifting of positions and commit to its best theories of the case.

3. From here on out, the court's processing of the case is largely about winnowing insubstantial claims and defenses and about determining the admissibility of proffered evidence. That winnowing process will continue until entry of final judgment and through the appellate process if an appeal is taken.

4. Once the dispositive motions are briefed and the parties can evaluate their likely outcome, the case preparation specialists will take more of a back seat role to the lawyers who will actually conduct the trial. When the legal teams have a good sense of what they have left to work with (assuming the case is not thrown out entirely), it is time for the trial specialists to begin coming up to speed and choreographing their trial presentations.

5. There will be more procedural motions, even during and after trial. But the case has turned a corner. The discovery war is largely done, although minor discovery may be granted even during the trial to address newly discovered evidence or evidence that was not disclosed in discovery. The lawsuit is now about whittling down the other side's case and preparing for trial.

The particular rule that applies to summary judgments in the FRCP is Rule 56, which reads in part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

And you can see the winnowing process in Rule 56(d):

(d) Case Not Fully Adjudicated on Motion.

If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

One way or another, we could be seeing SCO's case getting smaller, even if it survives some of the motions. You may also wish to review Nolo's definition of summary judgment, as well as 'Lectric Law Library's more detailed explanation. TechLawJournal's definition ties in with what Marbux wrote:

A motion for summary judgment can be granted to resolve disputes involving legal interpretation, but not disputes regarding material facts. Summary judgment, generally, is a pre-trial remedy sought where, based upon facts not in dispute, and an application of the law to those facts, a party is entitled to a judgment on a claim. The judge cannot decide disputed facts in a summary judgment proceeding. If any facts material to a claim are disputed, then summary judgment cannot be granted on that claim.

So, both sides have to present facts. That means if IBM alleges in a motion for summary judgment that the sky is blue, with a declaration attached by an expert on sky coloration, SCO has to prove that it isn't blue, with facts. If it stays silent, or presents insufficient facts to disprove or at least bring into dispute IBM's assertion, the sky *is* blue, as far as the court is concerned in ruling on that motion, because IBM asserted it as a fact, with its evidence, and SCO didn't dispute it. So it's a material fact not in dispute. Facts not in dispute can be decided by the judge and need not go to trial by jury.

And SCO can't just say, "The sky is not blue." It has to *prove* it isn't blue. Now think what that means for SCO that IBM has written in its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (10th Counterclaim) [PDF]: "None of the System V Code is protectable by copyright." Can you imagine how much work it will take for the SCO legal team to show a genuine dispute over a material fact on that issue?

So by filing all these motions, IBM is forcing SCO to cough up whatever facts it thinks it has to present its best argument. FUD won't do. It's specificity or bust. SCO needs to supersize its specificity pronto, or they can lose everything. Neat, huh?


  


Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production | 442 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: Aladdin Sane on Wednesday, September 27 2006 @ 02:44 AM EDT
Please place corrections to the article under this comment.

---
"And so castles made of Microsoft, melts into the sea eventually." --Jimi
Hendrix (revised)

[ Reply to This | # ]

Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Authored by: Zenock on Wednesday, September 27 2006 @ 02:45 AM EDT
Here's hoping for a new World Record.

[ Reply to This | # ]

Off Topic Thread
Authored by: Aladdin Sane on Wednesday, September 27 2006 @ 02:45 AM EDT
Please place off-topic comments under this comment. Thanks!

---
"And so castles made of Microsoft, melts into the sea eventually." --Jimi
Hendrix (revised)

[ Reply to This | # ]

Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Authored by: Aladdin Sane on Wednesday, September 27 2006 @ 02:56 AM EDT
Despite images of damaged pavement with a burnt rubber smell, I gather these are
the two things that need not go to a jury:

1) Facts not disputed.

2) Matters solely of law, and not of fact.

Correct?

---
"And so castles made of Microsoft, melts into the sea eventually." --Jimi
Hendrix (revised)

[ Reply to This | # ]

SSystems V Copyright.....
Authored by: Anonymous on Wednesday, September 27 2006 @ 03:29 AM EDT
"None of the System V Code is protectable by copyright." Can you
imagine how much work it will take for the SCO legal team to show a genuine
dispute over a material fact on that issue?"

err. maybe I'm having a too early in the morning dim moment, but isn't that the
issue in the Novell case; that Novell claim that in any event they *they* own
the copyright to System V, not SCO as the rights weren't transfered in the APA
or any amendments.

[ Reply to This | # ]

Enron's Fastow Gets 6-Year Sentence
Authored by: Anonymous on Wednesday, September 27 2006 @ 04:11 AM EDT
Article here

Are SCO people next ?

[ Reply to This | # ]

"minor discovery may be granted"
Authored by: Anonymous on Wednesday, September 27 2006 @ 05:38 AM EDT
Minor? Are you sure we're talking about the same plaintiffs?

[ Reply to This | # ]

I don't think so
Authored by: elderlycynic on Wednesday, September 27 2006 @ 06:40 AM EDT
"And SCO can't just say, "The sky is not blue." It has to
*prove* it isn't blue."

Er, aren't you confusing the trial proper with this stage?

My understanding is that all SCO has to do is to produce
some acceptable evidence that the sky is not blue for the
material fact to be in dispute. Such as the writings of
some once-eminent professor of physics who has gone gently
cuckoo - don't ask me to suggest names, though I could :-)

[ Reply to This | # ]

I reckon SCO will file a motion to compel discovery
Authored by: billyskank on Wednesday, September 27 2006 @ 06:56 AM EDT
:)

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Showing the code...
Authored by: Anonymous on Wednesday, September 27 2006 @ 07:12 AM EDT
Would I be correct in thinking that as far as specifying code goes, SCO can only
rely on what they have already identified with specificity (ummm did they
specify any?). Would they not be in breach of the orders telling them to specify
otherwise?

[ Reply to This | # ]

Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Authored by: Steve Martin on Wednesday, September 27 2006 @ 07:32 AM EDT

And SCO can't just say, "The sky is not blue." It has to *prove* it isn't blue. Now think what that means for SCO that IBM has written in its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (10th Counterclaim) [PDF]: "None of the System V Code is protectable by copyright." Can you imagine how much work it will take for the SCO legal team to show a genuine dispute over a material fact on that issue?

I had a bit of a double-take when I read this assertion by IBM initially. Is IBM truly saying that there are no enforceable copyrights in the System V code? I find that hard to believe. The SCO Group may not own them, but I would think the copyrights in System V exist nonetheless.

Also, if IBM makes this assertion, isn't the burden of proof on them to substantiate this claim? It seems to me that this would be a difficult prospect. How would IBM go about proving that none of the source code in System V is legitimately copyrighted? Talk about a haystack!

Finally, how can IBM expect Kimball to read this as an undisputed fact? The SCO Group obviously disputes it, since they claim copyright registrations on System V code in their Complaint. I'm confused.

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

[ Reply to This | # ]

Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Authored by: Anonymous on Wednesday, September 27 2006 @ 07:46 AM EDT
> SCO needs to supersize its specificity pronto,
> or they can lose everything.
> Neat, huh?

Late, huh?

[ Reply to This | # ]

Spin The Wheel, Raggedy Man!
Authored by: TheBlueSkyRanger on Wednesday, September 27 2006 @ 07:58 AM EDT
Hey, everybody!

I appreciate PJ reminding us that the odds of winning all the PSJ's on IBM's
part are not good.

Yeah, but....

Consider that the theory (much as we accept it as fact, it is still theory at
this point) that SCO has nothing except doubletalk. Consider also that any
evidence SCO has thought was so airtight they could present it publicly went
down like a WinME box running ICQ Chat.

Okay, no one wins all their PSJ's.

But what are the odds that IBM actually might win them all, simply because SCO
can't stall with this, and if they do, it's lights out?

I'm going 20 to 1 in favor of IBM. Any thoughts?

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

System V copyrights
Authored by: danb35 on Wednesday, September 27 2006 @ 08:02 AM EDT
"None of the System V Code is protectable by copyright." Can you imagine how much work it will take for the SCO legal team to show a genuine dispute over a material fact on that issue?
Actually, not very much at all. The evidence may be difficult to find (or even non-existent), but SCO's task, conceptually, is pretty straightforward--they simply need to come up with some evidence to support each of the required elements of copyright protection. Their evidence doesn't need to outweigh IBM's; they just need to have something, and they'll defeat the PSJ motion (or at least, this portion of it).

It's IBM who has taken on a tough job here--they need to show, as a matter of undisputed (and indisputable) fact, that at least one of the essential elements was not met. Their job is easier than SCO's in one respect--to win, they only need to show a single element that wasn't satisfied, while SCO needs to support every element of copyright protection. However, IBM needs to show, for at least one element, that there's simply no evidentiary support for it. You all know what they say about proving negatives.

This isn't to say, BTW, that I think IBM can't do it. First, this is only one argument among many supporting IBM's claim for declaratory judgment of noninfringement, so the court can find for them on other grounds. Second, the history of Unix (and, in particular, the Unix copyrights) is murky enough that SCO may not be able to meet even their slim burden of proof.

[ Reply to This | # ]

How hard is it?
Authored by: overshoot on Wednesday, September 27 2006 @ 08:35 AM EDT
"None of the System V Code is protectable by copyright." Can you imagine how much work it will take for the SCO legal team to show a genuine dispute over a material fact on that issue?

Yes: it's almost trivially easy.

Keep in mind that all they need to do is show one page of material of undisputed authorship written since the change of law.

There may not be much of such material, but it's far from impossible that there be some.

[ Reply to This | # ]

Judge or jury
Authored by: Anonymous on Wednesday, September 27 2006 @ 08:46 AM EDT
I always thought that, if you didn't have much of a factual or legal case, you
would choose a jury; the thought being that a jury is easier to confuse than a
judge. In that light, I thought SCO's only hope was to get the case before a
jury.

[ Reply to This | # ]

Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Authored by: Anonymous on Wednesday, September 27 2006 @ 09:00 AM EDT
One of the most interesting entries so far! Thanks, Pam and Marbux.

[ Reply to This | # ]

Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Authored by: Anonymous on Wednesday, September 27 2006 @ 09:27 AM EDT
IBM has made the correct assertion - SCO cannot prove it owns the copyright to
any of Unix System V.

[ Reply to This | # ]

SCO to pre-patent post appliications posthumously
Authored by: Anonymous on Wednesday, September 27 2006 @ 09:39 AM EDT
(I had to let you see this again)

Hasn't SCO already patented the posting of patent applications, including
methods and concepts of patenting methods and concepts. Also the concept of
patenting the posting of patent methods and the methods of conceptualising
patents and patenting posts of methodically conceptualised patents, both pre-
and post- patent posting.

And isn't pre-patent-posting patently pre-post-erous? Particularly as
post-pre-patent patenting is conceptually precocius, yet possibly pre-methodic
post-pre-patenting purports to support pretentious patent-pending proposed
preciousssss parent patent pre-conceptualised post-method post-posting,
pre-judgement.

Perhaps?????

[ Reply to This | # ]

New line of business for IBM
Authored by: Anonymous on Wednesday, September 27 2006 @ 10:02 AM EDT
T-Shirts with the slogan: "Got Evidence?"

[ Reply to This | # ]

Excellect - but I have one question
Authored by: Anonymous on Wednesday, September 27 2006 @ 10:15 AM EDT
Near the end it was stated: "None of the System V Code is protectable by
copyright." I see this as an absolute.

To create a dispute of fact, wouldn't SCO only need to show that a tiny file or
any part of the System V code is, in fact, 'SCO proprietary' (as opposed to
legacy code from its predecessors, Novell, public domain and/or BSD)? If I
understand it, SCO does not need to show that a substantial part (or all) is
protectable.

I presume that SCO does not have a retroactive solution. If my memory is
correct SCO does not, at this time, have copyrights on System V software. Since,
SCO has contributed to System 5, I presume that applying for software patents at
this late date is not a legal remedy.

---------------
Night Flyer
Veritas Vincit: Truth Conquers

[ Reply to This | # ]

SCOX takes the lead
Authored by: Anonymous on Wednesday, September 27 2006 @ 10:43 AM EDT
<tongue firmly planted in cheek>

Well as of 10:41AM EST SCOX stock is up $0.13, and IBM is down $0.15.
Therefore, SCOX must have a better chance of winning its motions than IBM does
of winning theirs.

</tongue firmly planted in cheek>

[ Reply to This | # ]

Specificity: what we've cared about from the get-go
Authored by: rjamestaylor on Wednesday, September 27 2006 @ 10:48 AM EDT
Long before Caldera/SCOX became the butt of derision and the poster child of cynicism in the tech world their claims against Linux, in particular, caused genuine concern among many in the Linux community of developers and users. I remember the first reaction: if there is illegal copying in Linux let's identify it and remove it immediately! Of course, the "Linux is a bicycle" analogy as first alleged by CALD/SCOX in Spring '03 was seen as incendiary propaganda, but the claims of wrong doing caused introspection. But, since the accusers delayed, delayed and continued to delay specifying the evidence (which they claimed to be millions of lines of code) the accusations soon began to lose their weight. Then, at SCOForum the company started becoming the laughing stock (no pun intended) that it is today by presenting less than nothing to buttress their (now obviously) ridiculous claims.

What we wanted, what we begged for was: specificity. Show the illegal code, we'll remove it whatever the cost, whatever the pain. This is because kernel developers and the overwhelming majority of Linux users are good, moral people respecting the rights of copyright holders -- in fact, the "community" exists because of the respect for the license allowing use and re-use of the very code upon which the community is based, GNU GPL, which is a license based on copyright!

I say "we" not because I consider myself important in, central to or recognized by Linux users and developers but because I view myself as a participant. In 2003 I was the CTO for a company that made use of Linux in our product offerings. Had the accusations of SCOX been founded in truth it would have caused upheaval for my company and myself, personally, as it would not have been conscionable to use a product violating others' rights. Nor defendable. So, hearing the accusations I began to seek out information to determine if they were true.

From the beginning I wanted to hear something specific. Since the Linux codebase has always been open for all to see and all contributions were publicly available it should be easy for a copyright holder to point to a section of code and say, "That's mine." Never happened. Instead, at discovery inched along and SCO made the astounding claim that it needed IBM to provide the code to prove what was copied (meaning, the code SCOX had access to did not find itself in Linux, but possibly IBM's code that, under a weird theory of ownership refuted by license agreements between IBM and AT&T, etc., could possibly be construed as belonging to SCOX, maybe, if you squinted just right and held your breath long enough)... it became increasingly clear that SCOX had __no_evidence__ of copying. None.

So, if now IBM's motions cause SCOX to become specific with allegations it would be indicative of incredible strategic errors that specific, verifiable proof of copying from UNIX to Linux is shown to exist. And, no, error.h does not count, nor do functions published without restrictive license eons ago in officially sanctioned works on C and Unix. In fact, assertions to the contrary just belie the dearth of evidence SCOX purports to have.

If SCOX has specific evidence of copying between UNIX and Linux they blew their opportunity to have the legions of Linux working in their favor to (1) expose the scoundrels violating copyright and (2) remove offending code within HOURS of producing evidence of ownership. The Linux community, especially the kernel developers, don't sanction violations of copyright and won't stand for it, either. SCOX erred in one of two ways: 1) in not working with the community to rectify real violations or 2) in lying.

Had evidence implicating IBM of violations been credibly presented this site, Groklaw, would NOT be pro-IBM, anti-SCO. Sure, the fact that Caldera, a company founded on Linux, used proceeds of an IPO touting the GPL upon which Linux is based, license-wise, to purchase something from oldSCO related to Unix would cause consternation. But if the facts were supporting SCOX they'd have been well advised to USE THEM instead of posturing and FUD to promote their case.

Unless the strategy all along was to cause their stock to rise long enough to enrich their pockets. But, that's just me being cynical, right? *Cough*SEC*cough*

---
SCO delenda est! Salt their fields!

[ Reply to This | # ]

Most likely: Win some, lose some by IBM
Authored by: dwheeler on Wednesday, September 27 2006 @ 11:04 AM EDT
I think the most likely result of these PSJs is that IBM will win some, and lose or only partly win others. Which is still really good for IBM; the case is quickly winnowing down to something that is completely unthreatening to anyone (except SCO). SCO's lack of evidence will correctly mean that much of their case is gutted.

My biggest hope is that SCO loses its claims that simply combining code with System V somehow gives them ownership of other people's code. That is rediculous, it's clearly NOT the intent of the contract, and without that nonsense much of their case falls apart. I think THAT is reasonable to lose in summary judgement, and it would gut SCO's case. This is part and parcel of "IBM's Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action)" - I hope they win that, and if that happens (very plausible), there won't be a lot left. And I think IBM has an EXCELLENT chance of winning that one.

BTW, I think claiming that there are NO copyrights over System V is probably NOT true. SCO should be able to show that there are SOME copyrights on System V. But even if so, SCO hasn't shown that System V code has been illegally copied into Linux, so even if SCO "wins" that point, it won't help them - that is not enough to prove anything illegal occurred.

[ Reply to This | # ]

What does it mean that discovery is closed
Authored by: Anonymous on Wednesday, September 27 2006 @ 11:22 AM EDT
What does that mean?

Are they allowed to bring forth NEW evidence after this date?

By now, does IBM have a copy of all the evidence that SCO could potentially
bring forth?

SCO kept delaying discovery, while fishing for evidence. They didn't find any.
Is this the end of the line, or do the rules allow for SCO turning up some
documents from their attic before the trial starts?

[ Reply to This | # ]

The Boxer
Authored by: Anonymous on Wednesday, September 27 2006 @ 11:37 AM EDT
IBM has other reasons for filing requests for summary judgements.

SCO's resources are finite. At their current rate of cash flow, they have less than a year of solvency without recapitalizing. Granted they have a payment agreement with their council, but that will not protect them from all costs.

IBM's resources, on the other hand, are near endless.

Everytime IBM presents SCO with a challenge, it costs SCO and their council time and money. IBM can easily win a war of attrition, and delay decreases the chance of having to risk a trial.

It's like a boxer who is in much better shape than his opponent. It's to his advantage to keep the pace of the fight up without putting himself unduly at risk.

[ Reply to This | # ]

October 24: SCO smackdown day ?
Authored by: Anonymous on Wednesday, September 27 2006 @ 12:02 PM EDT
With a bit of luck and good timing by the judges, could we have the following on
October 24th ?

Kimball : denies SCO's appeal against evidence being thrown out by Wells
Wells : disallows extra evidence introduced by SCO's experts
Kimball : grants all of IBM's PSJ's
Kimball : denies all of SCO's PSJ's
Kimball : rules against SCO in SCO v Novell

All that would be left would be appeals by SCO. What a day that would be !

[ Reply to This | # ]

Summary Judgment Motions: Where the Rubber Hits the Road on Evidence Production
Authored by: Glenn on Wednesday, September 27 2006 @ 02:35 PM EDT
Most of the posts pertinent to the case here have concentrated on the PSJ
about copyrights. However, with the obligatory INAL disclaimer, I feel that the
most important one is the PSJ on the contract interpretation. Lewis Mettler at
LamLaw said that contract interpretation is a matter of law and one that the
judge will decide. This will be the SCOG's most difficult hurdle to overcome,
i.e. getting Judge Kimball tyo agree with their "all you code is belong to
us" theory. Or more to the point, we don't own your code, but we can tell
you what to do and what not to do with it theory.
If Judge Kimball grants the PSJ on that one, the SCOG is going down in
flames.

Glenn

[ Reply to This | # ]

The sky is not blue
Authored by: Anonymous on Wednesday, September 27 2006 @ 03:02 PM EDT
The sky is clear. Sunlight is white, but when bent by the refractive properties of the earth's atmosphere, splits up into its myriad constituent colors. The blue portion of the sun's light reflects most easily off of the tiny water vapor droplets in the atmosphere and makes the sky appear to be blue.

[ Reply to This | # ]

Steven J. Vaughan-Nichols has some lawyers predictions about the PSJs, and some sad news.....
Authored by: tiger99 on Wednesday, September 27 2006 @ 03:13 PM EDT
Link

Also, sadly Nina Reiser is still missing.

[ Reply to This | # ]

Oral Arguments requested
Authored by: ThatBobGuy on Wednesday, September 27 2006 @ 04:12 PM EDT
If all the oral arguments are granted, where I think IBM will shine, you think
it would be in the same sitting?
I'm SERIOUSLY considering headed to Utah. Need to take a week vacation before
the end of the year, took some volunteer bumps, so I've got free plane
ticket(s). Marriot rewards card is up there. Can't think of any reason not to
go.
Are audio recording devices allowed?

[ Reply to This | # ]

Reason for SYSV copywrites?
Authored by: Anonymous on Wednesday, September 27 2006 @ 05:23 PM EDT
I believe IBM mentions the lack of copywrite is because of SCO's refusal to
adequately answer some of IBM's interrogatories. Didn't IBM request that SCO
provide them with who had the rights to any alledgedly infringing code, if SCO
ever released it themselves, or if it was released by some other means?

I've seen where SCO mentions some code (along with M&C), but I don't
recall ever seeing SCO show how that code was theirs.

Now if SCO can only use evidence that has already been submitted to the court
and they've never identified what anybody else owns, let alone their own; IBM
can only conclude that no one owns it (other than what they themselves have
copywrite on).

Does that make sense?

J

[ Reply to This | # ]

  • Yes - Authored by: jdg on Wednesday, September 27 2006 @ 07:13 PM EDT
  • Reason for SYSV copywrites? - Authored by: Anonymous on Wednesday, September 27 2006 @ 07:13 PM EDT
Sir Humphrey Appleby replies
Authored by: Anonymous on Wednesday, September 27 2006 @ 06:47 PM EDT
People who come to see people, may not want other people to see them seeing
people and people who don’t want to be seen seeing other people, don’t want to
see people who aren’t supposed to be seen, seeing that the people who are seeing
people who want to see people without being seen, and people who ought not to be
seen by people, don’t want to be seen not seeing people who don’t want them to
be seen by the people whom they are not here to see.

And if people who weren’t there to see other people seeing people were to in
fact see these other people, then the people who had come to see people but
didn’t want to be seen by people who weren’t there to be seen seeing people,
could in fact see the people whom they weren’t there to see.

You see.

[ Reply to This | # ]

Parsing IBM motions
Authored by: Anonymous on Wednesday, September 27 2006 @ 07:44 PM EDT
I've already mentioned this in specific threads, but I see so many people talk about IBM's supposed claim that none of System V is copyrightable (which I respectfully believe is a gross misunderstanding), that I think it's worth repeating separately. So, with the disclaimer that I'm not trained in parsing legalese, let's look carefully at the relevant portion:
"SCO cannot establish a claim of copyright infringement absent a showing that the Linux Code makes Linux substantially similar to protectable elements of the System V Works. None of the System V Code is protectable by copyright." (emph. added)
The items in bold are terms of art. They don't mean what they say. It would make no sense, for example, to say, "Linux code makes Linux..." because, after all, Linux code is Linux. Obviously, "Linux Code" (note the capitalization) means something different. Also note how IBM refers to protectable elements of System V Works right before claiming that System V Code is not protectable. IBM is not claiming that none of System V is copyrightable.

So what do these three terms mean? My guess is IBM defined them in the supporting memorandum and then reused them in the motion without bothering to copy the definition. We'll know for sure when we see its redacted version. My guess is that Linux Code is Linux code that SCO claims is infringing, System V Code is System V code that SCO claims is infringed by Linux Code, and are the actual System V software products ("works" as in "literary works") -- what we would normally call System V code.

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SCO Can't Assert Copyright Anymore on Sys V
Authored by: grayhawk on Thursday, September 28 2006 @ 12:36 AM EDT
Caldera/Sco made Unix System V code available unencumbered through the United
Linux Project. The moment it did that the code no longer became proprietary and
copyright can't be asserted since they waived their copyrights at the time of
submission.

Also Unix code other than anything recently developed has been shared
unencumbered over the years and can't be protected by copyright anymore. The
BSD case proves that.

SCO is in serious hot water with no way out.

---
It is said when the power of love overcomes the love of power, that it is then
and only then that we shall truly have peace!

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