decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
More IBM Filings and a Nice Memento for Us to Share
Wednesday, November 22 2006 @ 09:13 PM EST

More filings in SCO v.IBM by IBM, pant pant. Here's what's on the docket today, all PDFs:
880 - Filed & Entered: 11/22/2006
Declaration
Docket Text: DECLARATION of Todd M. Shaughnessy (REDACTED VERSION) filed by International Business Machines Corporation. (Attachments: # (1) Exhibit 601# (2) Exhibit 602# (3) Exhibit 603# (4) Exhibit 604# (5) Exhibit 605# (6) Exhibit 606# (7) Exhibit 607# (8) Exhibit 608 # (9) Exhibit 609# (10) Exhibit 610 # (11) Exhibit 611 # (12) Exhibit 612# (13) Exhibit 613# (14) Exhibit 614 # (15) Exhibit 615# (16) Exhibit 616# (17) Exhibit 617# (18) Exhibit 618)(Shaughnessy, Todd)

881 - Filed & Entered: 11/22/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [777] MOTION for Summary Judgment on IBM's Sixth, Seventh, and Eighth Counterclaims (REDACTED VERSION) filed by Defendant International Business Machines Corporation. (Shaughnessy, Todd)

882 - Filed & Entered: 11/22/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [776] MOTION for Summary Judgment on IBM's Second, Third, Fourth, and Fifth Counterclaims (REDACTED VERSION) filed by Defendant International Business Machines Corporation. (Shaughnessy, Todd)

883 - Filed & Entered: 11/22/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [775] MOTION for Summary Judgment on SCO's Third Cause of Action, For Breach of Contract (REDACTED VERSION) filed by Defendant International Business Machines Corporation. (Shaughnessy, Todd)

As you can see, 880 has quite a few exhibits, and they are additions to the 597 exhibits IBM has already submitted in support of its various summary judgment motions. Whatever isn't there as PDF in the exhibits list is redacted or easily available on the Internet or already in our collection. I'll try to fill in the blanks as I have time.

I got so excited when I saw the deposition of Marc Rochkind, Exhibit 616 of 880, on the list, but it's redacted. Talk about disappointed. Anyway, we certainly will never run out of reading material.

You might want to note Exhibit 608 [PDF], especially those of you who were with us back in the early days of Groklaw. Do you remember the letter we wrote together on the Internet as a group, our letter to SCO? You can find it on the Internet, in Egan Orian's article in The Inquirer, "Groklaw Sends a Dear Darl Letter." Or you can always read it right here on Groklaw, where it was born. It is Exhibit 608.

You will find it referenced in IBM's Redacted Memorandum in Opposition to SCO's Motion for Partial Summary Judgment on IBM's Second, Third, Fourth and Fifth Counterclaims [PDF], on page 13, paragraph 28:

28. At the same time, SCO failed to disclose the particulars of the alleged infringement, leading to fear, uncertainty, and doubt in the marketplace. (Ex. 283 paragraph 108.) Indeed, SCO rebuffed requests by the open source community for evidence of the alleged infringement, which would have permitted a potential work-around (Ex. 480; Ex. 608 at 4), and simultaneously capitalized on the marketplace fear, uncertainty, and doubt by selling licenses for the use of Linux (see, e.g., Ex. 224).

Here's part of what we wrote back in September of 2003:

YOU HAVE SHOWN US NO INFRINGING SOURCE CODE

You have refused to show us, much less prove, any infringing source code. If you showed source code that proved to be infringing, it would be immediately removed. Linus Torvalds, Richard Stallman, and the FSF's attorney, Eben Moglen, have each told you so repeatedly as men of honor. You refuse to let that happen. Why? It appears to us it is because you have no infringing source code to show.

Your most recently filed 10Q shows your UNIX business declining, even as Linux continues to grow in market acceptance. If you are refusing to show the source code to prevent its removal because you wish to charge a perpetual toll, in effect riding on the coattails of the more successful GNU/Linux software, that is a shameful tactic. You cannot compel Linux developers to retain your source code, even if any infringing code existed. An alleged infringement is curable by removing the infringing source code. If you can identify any infringing source code, please do so, prove it is infringing, and let us remove it, because we surely do not want it.

I'm certainly glad now we decided to send that letter. At the time, I wrote that cynics might think it would be about as effective as writing a letter to Santa. But while SCO didn't respond by showing us any infringing code, it turns out to have been worth writing anyway. I live by the motto that it never hurts to give something a try. The other exhibits referenced can be found on our chart of IBM's previous 597 exhibits. 224 is the Declaration of Robert A. Marsh [PDF], dated April 5, 2006. 283 is the Expert Report and Declaration of Robert Willig, dated July 17, 2006 (Under Seal). And 480 is an article by Otis Port, titled "Commentary: Will This Feud Choke the Life Out of Linux?", from BusinessWeek, dated July 7, 2003.

I used to say I'd like to have a share of SCO stock when this trial was over, as a memento. But we have something much better now to remember our collective hard work (but fun!), better because it's a memento we can all share, which feels mighty appropriate. And very, very good.


  


More IBM Filings and a Nice Memento for Us to Share | 285 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: cricketjeff on Wednesday, November 22 2006 @ 09:25 PM EST
If there are any

[ Reply to This | # ]

Off Topic
Authored by: cricketjeff on Wednesday, November 22 2006 @ 09:27 PM EST
Make the links clickable by following the instructons below the comment box
please.

[ Reply to This | # ]

Trolls Here, Please
Authored by: ChefBork on Wednesday, November 22 2006 @ 09:27 PM EST
You know who you are!

---
If two heads are better than one, then why are liars two-faced and being of two
minds indecisive?

[ Reply to This | # ]

More IBM Filings and a Nice Memento for Us to Share
Authored by: Anonymous on Wednesday, November 22 2006 @ 10:18 PM EST
Oh dear, now they will use that as proof you work for IBM.

:)

Tufty

[ Reply to This | # ]

SCO contradicts itself, as usual
Authored by: _Arthur on Wednesday, November 22 2006 @ 11:30 PM EST
In #882, SCO argues that attorney's fees do not qualify as Special Damages.
SCO took the exact reverse position at the begin of the Novell case.

Also in #882, SCO once claimed "excessive publication" by Novell;
so now IBM refers to SCO's argumentation against Novell:
"The defense of qualified privilege does not extend to a publication
to the general public". Kimball ruled then that
Excessive Publication cannot be resolved without a jury...

[ Reply to This | # ]

SCO nailed perfectly: favorite citation in 881
Authored by: Anonymous on Wednesday, November 22 2006 @ 11:48 PM EST
See e.g., Cofield v. Ala. Public Service Comm'n, 936 F.2d 512, 516 (11th Cir.
1991)(affirming district court dismissal of suit by pro-se litigant found to be
"a con-artist who sought to use the legal system to extort settlements from
unsuspecting parties").

[ Reply to This | # ]

More IBM Filings and a Nice Memento for Us to Share
Authored by: Khym Chanur on Thursday, November 23 2006 @ 02:13 AM EST
Indeed, SCO rebuffed requests by the open source community for evidence of the alleged infringement, which would have permitted a potential work-around (Ex. 480; Ex. 608 at 4)

Why did IBM use articles by journalists as exhibits here? (The other exhibit being this Business Week article). I would think that the lawyers themsleves would explain how SCO could have worked with kernel developers to remove infringement, and then use as exhibits affidavits or open letters to SCO from kernel developers who'd personally been rebuffed by SCO. But, then, IANAL, so I'm probably missing something.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

SCO Stands No Chance - Laws of Probability
Authored by: Anonymous on Thursday, November 23 2006 @ 03:01 AM EST
The problem SCO faces is that with some exceptions, most of IBM's motions win if
the judge agrees with any of a number of independent points.

Ie IBM says,
- SCO is misinterpreting AT&T contracts or
- Novell has waived any breach
- etc etc.

agreeing to any of these is a loss for SCO and a win for IBM. That spells
trouble, presuming IBM is arguing reasonable points.

Let's just assume the judge was flipping a coin, and that Novell and IBM each
had equally strong arguments. With 4 independent arguments, the chance of SCO
winning is in the 6% range, with IBM winning at the 94% range.

Of course, if I weight these the way I think they are likely to go (ie, 80/20
IBM) we get down to tenths of a percent for SCO to win.

There are some exceptions to this, particularly the GPL argument which rests
generally on a single argument around repudiation.

But for great swaths of SCO's case, after reading these arguments, I just don't
see how SCO is expecting their contract interpretation / breach of contract /
infringement claims to survive all the elements that they will need to get
through.

Even if they do win, with claims at the $3,000,000,000 level, they are going to
have to deal with a vigorous set of appeals to collect their $3 billion. For
that amount of money IBM can hire something like 7,500 people at $100k per year
for 4 years to fight this.

It just seems very unfortunate. They also have to survive the Novell arbitration
and the Novell litigation and the RedHat litigation. Ugh.

[ Reply to This | # ]

Thank you Mr Wallace
Authored by: jmc on Thursday, November 23 2006 @ 03:25 AM EST
I notice that IBM makes reference to Mr Wallace's cases in the last two pages of
their brief (881).

It was very kind of him to aid the arguments in favour of the GPL. Do you
suppose the Nazgul paid him anything?

[ Reply to This | # ]

FUD!!!!! Didn't they take that off the market after all them hillbillys went blind??????????????
Authored by: SirHumphrey on Thursday, November 23 2006 @ 03:48 AM EST
Thanks to Homer..........Simpson that is.

Sounds like our patent trolls "could do with a bit of chlorine in the gene
pool" a la Duckman.

[ Reply to This | # ]

Is this OT?
Authored by: Ian Al on Thursday, November 23 2006 @ 04:58 AM EST
A quote from the Groklaw open letter,

Even more shameful would be to try to destroy, co-opt, or make proprietary, the labor of thousands of good-hearted volunteers who did not volunteer to work for you, do not wish to be exploited by you for your monetary gain, and have already chosen to release their creative work under the GPL.

It's a good job this article is not about the SCO vs Novell case. I wouldn't know who to send the letter to.

---
Regards
Ian Al

[ Reply to This | # ]

Dear Steve Ballmer?
Authored by: Anonymous on Thursday, November 23 2006 @ 05:44 AM EST
Since Ballmer is suggesting that open source software infringes MS patents,
perhaps it's time for a letter to ask him to specify which patents, so that
these can be addressed?

[ Reply to This | # ]

somewhat of a dangerous motto
Authored by: Anonymous on Thursday, November 23 2006 @ 06:05 AM EST
"I live by the motto that it never hurts to give something a try."

Maybe that's what Novell thought before entering into an agreement with MS... x)

[ Reply to This | # ]

Juicy bits from IBM-883
Authored by: MathFox on Thursday, November 23 2006 @ 07:08 AM EST
In IBM-883 (pdf) IBM exposes some very nasty lawyering from SCO/BSF:
First with respect to the meaning of the term "derivative works based on such SOFTWARE PRODUCT" [...] the testimony of the thirteen witnesses on which SCO relies does not establish SCO's definition. For example:
  • Bruce Levine's cited testimony is based on his understanding of the terms "resulting material" and "software product", not "derived work" [...]
  • David Rogers' cited testimony defines the term "augmentation", which was being discussed in the context of a question about "modification", not "derived work" [...] Also, SCO excludes his answer to a follow-up question where he explains that Sequent understood that it could do what it wanted with its own code. [...]
  • Edward Kennedy not only played no role in the agreement, but did not assume the position at IBM in which he became familiar with the UNIX licensing contracts until the late 1980s, years after the agreements have been negotiated and signed. [...]
There is nine more bullet points at pages 17 and 18 (blue court numbering) in the pdf.

Are lawyers allowed to deceive the court?

---
If an axiomatic system can be proven to be consistent and complete from within itself, then it is inconsistent.

[ Reply to This | # ]

So why hasn't anyone sued SCO?
Authored by: Anonymous on Thursday, November 23 2006 @ 10:02 AM EST
From the open letter "any such action will expose you to civil lawsuits
under..."

Seems SCO's violating the GPL - yet to the best of my knowledge ZERO of the
copyright holders of GPL'd software did anything at all to SCO?

Does this lack of action suggest that it's pretty much OK for companies to do
what SCO did (violate the copyright rights of most GPL'd works including
Linux)?

[ Reply to This | # ]

More IBM Filings and a Nice Memento for Us to Share
Authored by: gbl on Thursday, November 23 2006 @ 10:30 AM EST
Rules for dealing with Microsoft...

  1. Do not deal with Microsoft.
  2. See rule 1.

Seriously, a gift from Microsoft is intended to blow up in your face. It is not an accident. Why people continue to think that dealing with Microsoft will ever be in their long term interest is a mystery that can only be explained by simple greed.

---
If you love some code, set it free.

[ Reply to This | # ]

Yes I do remember our letter.
Authored by: Anonymous on Thursday, November 23 2006 @ 12:21 PM EST
"You might want to note Exhibit 608 [PDF], especially those of you who were with us back in the early days of Groklaw. Do you remember the letter we wrote together on the Internet as a group, our letter to SCO?"

Yes I do remember the letter being written.
I remember who started it off and the time stamp on the posting "9/9/03; 4:05:14 AM" that presented it to the community at Groklaw.
I remember this post, one of many congratulating the author. Tim
I remember the author saying this about the praise being heaped on him;
"And I would be honored if the Groklaw community did wish to have it more widely published as a representative response of the community, but I suspect that some members might have legitimate and understandable problems with some of my language, the obscenities in particular."
I remember it all very well.
Do you, or any of your helpers remember hacking the original comments about till they looked like this. Time shifted so that the first poster "responds" to you two hours 'before' you post your article.
Do you remember who John is, and what he said in that first draft? "I grant everyone, including you, permission to re-publish it, or quote from it, without restriction, except that my comments be properly attributed to myself." That was written to Darl. Ironic was it not?

Maat

[ Reply to This | # ]

Exhibit 608
Authored by: tredman on Thursday, November 23 2006 @ 01:33 PM EST
Yea, us! :)

Seriously, PJ, turn off the computer, sit back, enjoy the day, eat some turkey
or your choice of Thanksgiving day vittles, and get some rest. I don't think
anybody in the US would fault you for taking a break for this one day.

Though, I do have to admit, this latest round from Pacer is pretty interesting.

To the rest of you in the US, Happy Thanksgiving, and enjoy the day!

(I know, it's hypocritical of me to say all this while I sit on the computer
reading Groklaw. But I have to do something while the turkey fryer heats up)

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

[ Reply to This | # ]

    More IBM Filings and a Nice Memento for Us to Share
    Authored by: Anonymous on Thursday, November 23 2006 @ 02:11 PM EST
    Of course your reference to IBM's relationship with Microsoft refers to the OS/2
    operating system; a superior OS in every way to anything that M$ has ever
    produced. It's just amazing how M$ continues to survive.

    [ Reply to This | # ]

    SCOX/BSF's Oppositions Coming Soon?
    Authored by: Dave23 on Thursday, November 23 2006 @ 06:55 PM EST
    So, should we soon see SCOX/BSF's oppositions to IBM's SJ Motions?

    At least we now know what to expect, yes?

    ---
    Nonlawyer Gawker

    [ Reply to This | # ]

    Mad question - getting original files?
    Authored by: Peter Baker on Saturday, November 25 2006 @ 08:11 AM EST
    Would it be illegal for IBM's legal team to give GrokLaw the 'source code'
    Word/OO/whatever files of all the filings that are not under seal? I mean, if
    they're public they're public, and having the original ensures (a) less work and
    (b) higher accuracy. Obviously with a declaration that IBM's OK with GL
    publishing it and that it's the true and accurate item of what went to court.

    It just strikes me as a bit mad that IBM has to commit it all to tree trunks for
    GL to scan it and decode again, instead of taking the source and comparing it
    against what's at the court (just as due diligence).

    There's probably something I've overlooked here, but it just feels like a lot of
    effort to have an electronics to tree to electronics interface..


    ---

    = PB =

    "Only a man can suffer ignorance and smile" - Sting
    (Englishman in New York)

    [ Reply to This | # ]

    Transcription Claims Here
    Authored by: Steve Martin on Saturday, November 25 2006 @ 06:43 PM EST
    I'm halfway through 882.


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

    [ Reply to This | # ]

    SCO outflanked; Notes on 882
    Authored by: webster on Sunday, November 26 2006 @ 01:11 AM EST
    .
    Reading Notes of 882 IBM Opposition to SCO MPSJ on IBM's FUD Claims


    1. This is about FUD. SCO filed a MPSJ on IBM's FUD claims. This is IBM's
    opposition. IBM has also made a MPSJ on these claims so it's old hat. Summary
    judgments are appropriate when there are no disputed facts. All one has to do
    to defeat such a motion is establith that there is a disputed fact.

    2. SCO claims a privilege due to litigation. SCO then limits its facts to just
    litigious statements. IBM has much more in mind, namely statements in the press
    and to customers. SCO argues its privilege defense and ignores the extent of
    IBM claims.

    3. SCO claims good faith. IBM says no evidence of good faith but actual
    evidence of bad faith. There is at least a factual dispute so no PSJ. What's
    more good faith is not a defense to Lanham act claims.

    4. SCO says no damages. IBM says there are categories of damages including
    lost profits and mitigation costs.

    5. In IBM's statement of facts they detail the public claims such as the 1,500
    letters to corporations. At paragraph 20 they note SCO's final disclosures of
    325 lines of Sys V code. At paragraph 21 they repeat Kimball's copyright
    astonishment. p. 9.

    6. The fact that SCO has shut up in the past year or more is indicative that
    what IBM is saying about damages is credible. IBM details its FUD damage at
    paragraph 35, Ex. 614 PP 4-6. Upon finishing this, that's where I'm going. p.
    14. [Well I checked it and IBM lost ....{redacted}.. .illion dollars due to
    SCO.]

    7. Next IBM details their counterclaims. As already mentioned, IBM includes
    more facts than SCO, who pick and choose depending on where they have a defense.
    SCO says they acted in good faith. IBM denies that and alleges that SCO acted
    in bad faith. This proof will be interesting. IBM repeats that good faith is
    only a defense to part of their claims.

    8. SCO has the burden of showing there is no genuine issue of material fact as
    to their asserted defenses. All IBM has to do is show a material disputed fact.
    p. 20.

    9. IBM argues that SCO does not enjoy the litigation privilege for its out of
    court statements and actions. None of their proffered undisputed facts establish
    that their actions were confined to litigation. There is at least an issue of
    excessive publication, thus no PSJ. p. 24. IBM also points out that malice
    defeats a PSJ. It is an issue of the state of mind that does not lend itself
    readily to summary judgment. p. 25.

    10. Why do IBM say no good faith? Because SCO has no evidence of copyright
    infringement yet make all kinds of public statements about it. p. 25. Their
    assertions of good faith are conclusary and unsubstantiated. IBM then details a
    litany of reasons SCO knew or should have known their statements had no good
    faith. Thirteen examples. What's more, good faith is not a defense to the
    Lanham Act and the New York law, Section 349. They then do that boring caselaw
    stuff. to p. 29.

    11. We'll give damages short shrift. We do note that IBM quotes one Darl
    McBride to support their claim of damages. DM claimed that IBM suffered 20%
    Linux activity damage. [SCO will say that was just FUD, no fair, don't count
    it!]

    12. Given that SCO has abandanoed trade secrets in court and copyright by
    astonishing lack of proof and thier own quest for such from Novell, and 276
    lines instead of millions, well IBM has the upper hand on these cross motions.

    ---
    webster

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )