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SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim
Thursday, December 21 2006 @ 07:36 PM EST

Here's the latest on Pacer in SCO v. IBM, all PDFs, which we can read together:
903 - Filed & Entered: 12/20/2006
Redacted Document
Docket Text: REDACTION to [869] Sealed Document SCO's Memorandum in Opposition to IBM's "Motion for Summary Judgment on SCO's Copyright Claim (SCO's Fifth Cause of Action)" by Plaintiff SCO Group. (Attachments: # (1) Part 2: pages 30-64# (2) Appendix A)(Hatch, Brent)

904 - Filed: 12/20/2006
Entered: 12/21/2006
Order on Motion for Extension of Time
Docket Text: ORDER granting [901] Motion for Extension of Time to file reply memoranda in further support of pending motions for summary judgment. Reply Memoranda Due: 1/12/07. Signed by Judge Dale A. Kimball on 12/19/06.(blk, )

905 - Filed & Entered: 12/21/2006
Motion for Admission Pro Hac Vice
Docket Text: MOTION for Admission Pro Hac Vice of Sashi Bach Boruchow Registration fee $ 15, receipt number 436957. filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (2) Application for Admission# (2) Electronic Case Filing Registration Form# (4) Text of Proposed Order)(James, Mark)




  


SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim | 286 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: alisonken1 on Thursday, December 21 2006 @ 07:45 PM EST

For those time when everyone makes a misteak

---
- Ken -
import std_disclaimer.py
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993
http://www.slackware.com
http://www.mutagenix.org

[ Reply to This | # ]

Off-topic thread
Authored by: alisonken1 on Thursday, December 21 2006 @ 07:47 PM EST

And don't forget to read the red writing about what's allowed markup.

Almost forgot - don't forget to change posting mode to "HTML" if you
have clickies.


---
- Ken -
import std_disclaimer.py
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993
http://www.slackware.com
http://www.mutagenix.org

[ Reply to This | # ]

Sashi Bach Boruchow
Authored by: Steve Martin on Thursday, December 21 2006 @ 07:49 PM EST

Googling for 'Sashi Bach Boruchow' reveals that he/she is 31 years old, is an attorney in the Fort Lauderdale office of BS&F, got a BA at Dartmouth College in 1997, took a JD from Harvard in 2000, and specializes in commercial litigation. Findlaw lists an entry indicating some association with arbitration.

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

[ Reply to This | # ]

Pro Hac Vice
Authored by: Anonymous on Thursday, December 21 2006 @ 07:53 PM EST
You know how when you are reading, sometimes you see how something starts and
your mind just kinda fills in the rest? While reading the summary that
accompanies motion #905, my mind insisted on reading it this way:

905 - Filed & Entered: 12/21/2006
Motion for Admission Pro Hac Vice
Docket Text: MOTION for Admission Pro Hac Vice of Sacha Baron Cohen...

For a moment, it almost made sense.

[ Reply to This | # ]

Whom are they kidding
Authored by: lcreech on Thursday, December 21 2006 @ 07:56 PM EST
Item III, SCO gave IBM proper notice and opportunity to cure, and sought to
resolve IBM's breaches in good faith. LOL, have they even said what their
breaches were? For an opportunity to cure, one has to know what they did first.

[ Reply to This | # ]

Why IBM's license is "terminable"
Authored by: sk43 on Thursday, December 21 2006 @ 08:00 PM EST
Par. 18: "The term 'non-terminable' does not appear in Amendment No.
X." but it does appear in the Novell-Santa Cruz
Technology Licensing Agreement.

Thus, after Amendment No. X, IBM's license is "irrevocable" and
"terminable".

Uh, right.

[ Reply to This | # ]

SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim
Authored by: Anonymous on Thursday, December 21 2006 @ 08:21 PM EST
They're still harping on IBM being prohibited from contributing their own code
to Linux, looking at "Software Product" as including the totality of
AIX. This, despite having been told repeatedly that their reading of the
contract is incorrect... even those who wrote the contract. They're seriously
grasping at straws. Too bad for them that reality is an obstacle to
hallucination.

...D

[ Reply to This | # ]

Beautiful, point 1:
Authored by: Anonymous on Thursday, December 21 2006 @ 08:23 PM EST

The title of IBM's Motion inaccurately suggests that SCO's claims in this case include only one relating to "copyright." By virtue of prior Court Order, SCO also has claims that Linux violates SCO's copyright in Unix System V, Version 4."
Finally, SCO has directly written a notice of the copyright claims they had been spouting to the media in the actual court documents.

Phew.... a sense of specificity at last. Now to get specific information out of them on which copyrights, where the specific code is located in Sys V, and where the specific code is located in Linux.

I won't hold my breath though... it took them 3+ years to finally have a note in a legal document with regard to Linux and SCO's Sys V copyrights. Come to think of it, that might have been a mistake and BSF are now wishing they hadn't added it.

RAS

[ Reply to This | # ]

Judicial efficiency...
Authored by: Anonymous on Thursday, December 21 2006 @ 08:40 PM EST
would be well served, I think, if two issues were decided RSN.

One: Does Novell retain the right to override SCO's legal actions, and

Two: The plain reading of the contract (including parole evidence if necessary)
that allows IBM to contriubte IBM's own code to Linux or do anything else with
it that IBM wishes.

Those two items would really put the brakes on SCO's case, and reduce the motion
practice dramatically, methinks. Thoughts?

...D

[ Reply to This | # ]

The bulk of SCOG's evidence
Authored by: Anonymous on Thursday, December 21 2006 @ 08:48 PM EST

Appears to be the public statements made by IBM with regards to how they were going to help Linux.

40. ...IBM did not address the contributions, such as JFS, that SCO had referenced in its complaint or IBM's public statements regarding its contributions to Linux.
Seriously, if that's the heart of their evidence, wow.

If that's all that's needed to convict someone civilly, what kind of trouble is MS in with regard to it's public statements about Linux.

RAS

[ Reply to This | # ]

SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim
Authored by: walberg on Thursday, December 21 2006 @ 08:51 PM EST
Interesting that items 41, 46, 50 (in the "Statement of Material
Facts" part) especially, but quite a few others along with the general tone
of a lot of these "facts", seems to rely heavily on things IBM has
*not* said. As in, "they haven't said that they aren't axe murderers,
therefore they must be...". Seems like that logic's just a wee bit
warped... But then, what do I know?

[ Reply to This | # ]

SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim
Authored by: tqft on Thursday, December 21 2006 @ 09:49 PM EST
Who is Duff Thompson?

Have we heard from him separately? Has he been deposed?

His statement that the APA transferred the copyrights to SCO seems material but
this is the first time I can remember seeing his name.

---
anyone got a job good in Brisbane Australia for a problem solver? Currently
over employed in one job.

[ Reply to This | # ]

SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim
Authored by: Anonymous on Thursday, December 21 2006 @ 09:49 PM EST
In 905, p 47, tSCOg quotes Novells press release, "The amendment appears to
support..." To which tSCOg comments, "Novell thus admitted that it
does not own the copyrights..."

This is a non-sequitur. All Novell admitted is that it "appears" the
amendment tranferred copyrights. When they did the research, they found that it
didn't. That's why (presumably) their lawyer made them put in the word
"appears."

[ Reply to This | # ]

Copyright Registrations?
Authored by: bstone on Thursday, December 21 2006 @ 09:58 PM EST
From 903 part 1:
59. Shortly after the closing of the APA, Santa Cruz obtained physical possession of UNIX copyright registrations from Novell; those copyright registrations remain in SCO's possession to this day (Exs. 258-68.)

That's interesting. They neglect to mention what copyright registrations they have (anybody know where exhibits 258-68 are?), but claim they came from Novell. Have they mentioned this to Novell?

In the next paragraph, they call Exhibit 258 the registration certificate for "UNIX System V Release 4.0" (TX-5-776-217), which we know from their prior filings was registered July 16, 2003. That is when Caldera (fake SCO) filed registrations which were disputed by Novell. Obviously this exhibit is not a registration they received from real SCO who they claim got it from Novell.

Is this blatant perjury on their part, or is there some other explanation for these statements?

[ Reply to This | # ]

Technically deficient?
Authored by: Anonymous on Thursday, December 21 2006 @ 10:03 PM EST
I only glanced through it.

But it seemed to have its own list of "undisputed facts"

I can't see which specific IBM facts are being disputed.

If you contrast that to IBM's oppositions to SCO's SJ motions, you will see IBM
listed each specific SCO fact that they dispute and way.

SCO did the same thing before when they filed oppositions to to IBM's 2004 PSJ
motions.

At that time, in their reply, IBM pointed out to case law, why failing to point
out which specific facts are in dispute was inadequate for an opposition to a
PSJ motion.

Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

IBM did offer SCO a settlement !
Authored by: Maserati on Thursday, December 21 2006 @ 10:29 PM EST
Ooooo ! Para. 27, "Ms. Smith [IBM VP] further suggested the possibility of
a settlement involving a minor licensing detail with SCO".

That was at a breakfast meeting between Ms. Smith and Darl McBride in early
2003. Darl had threatened IBM, "Have you looked at your AIX contract lately
?" [para 26] Ms. Smith said IBM's lawyers didn't think SCO had the IP
rights to actually do anything about it, but offered them a token settlement to
get them to shut up about Linux. The 'or else' part of that was a threat that
IBM would stop doing business with SCO and encourage its partners to do the same
(which Smith allegedly began to do that same day).

Darl got greedy.

[ Reply to This | # ]

SCO must be doing okay financially
Authored by: DannyB on Thursday, December 21 2006 @ 10:36 PM EST
SCO's financial picture must not be as bad as I hear rumors of rumors of.

After all, SCO was able to afford the $15 filing fee.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Vintage SCO/BSF
Authored by: Anonymous on Thursday, December 21 2006 @ 10:49 PM EST
30 pages of wookies, followed by some handwaving with an occasional "there
is ample evidence". Gee, in law school they always told me to cite to the
record and indicate which evidence I was talking about... you know, with
specificity.

[ Reply to This | # ]

Is that tortious interference?
Authored by: devil's advocate on Thursday, December 21 2006 @ 11:34 PM EST

Isn't it tortious interference to ask your business partners not to do business with SCO? (They mention HP for one) Or is the allegation simply false?

[ Reply to This | # ]

What, IBM sticking to the facts? We can't have that!
Authored by: devil's advocate on Thursday, December 21 2006 @ 11:39 PM EST

Page 11: "Instead, IBM brings its motion on other grounds, most of which are particularly fact-based, and none of which is a basis for the summary judgement IBM seeks."

[ Reply to This | # ]

SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim
Authored by: BobinAlaska on Thursday, December 21 2006 @ 11:52 PM EST
I could not believe my eyes! I had to read it twice. On page 21, 31 of the PDF,
they trot out the "Acted in good faith" argument again. "SCO has
at all times acted in good faith in discovery. SCO has diligently complied with
it's discovery obligations and has conscientiously endeavored to respond to all
of IBM's discovery requests." Do you believe this? How can they say this
with a straight face? Do they really think the judge is going to forget all the
shenanigans they pulled?

---
Bob Helm, Juneau, Alaska

[ Reply to This | # ]

Larry Bouffard?
Authored by: elcorton on Friday, December 22 2006 @ 12:03 AM EST

One thing that jumps out at me is a reference to one Larry Bouffard on p 6. This was a Novell executive and the lead negotiator with IBM and real SCO on Amendment X. Fake SCO has the burden of showing that IBM's UNIX license, made "irrevocable" by the Amendment, wasn't really irrevocable, and that SCO could and did revoke it.

Early in the case, IBM submitted a Declaration of Lawrence Bouffard (exhibit 172 in IBM's Big Book of Exhibits [835]) which read in part as follows:

Amendment No. X, like the April 1996 Amendment, provides that IBM's rights under the Related Agreements [to SOFT-00015] are irrevocable, fully paid-up, and perpetual. The relevant language from Paragraph 1 of Amendment No. X states:
... IBM will have the irrevocable, fully paid-up, perpetual right to exercise all of its rights under the Related Agreements ... Notwithstanding the above, the irrevocable nature of the above rights will in no way be construed to limit Novell's or [real] SCO's rights to enjoin or otherwise prohibit IBM from violating any and all of Novell's or SCO's rights under this Amendment No. X, the Related Agreements, or under general patent, copyright, or trademark law.

I, and I believe all the parties involved in the negotiation of Amendment No. X, understood this language to mean that Novell and Santa Cruz no longer had any termination right with respect to IBM's rights under the Related Agreements, though Novell and Santa Cruz retained the right to seek to enjoin or otherwise prohibit conduct that violated the provisions of Amendment No. X, the Related Agreements, or Novell's or Santa Cruz's rights under general patent, copyright, or trademark laws (if they could satisfy the standards for obtaining such relief... I, and I believe all who participated in negotiating Amendment No. X, understood this language to mean that IBM has the irrevocable, fully paid-up, and perpetual right to use the licensed code and products, precluding Novell or Santa Cruz (or their respective successors and assigns) from terminating or otherwise interfering with IBM's rights to copy and furnish, including market, license, and distribute, sublicensed products, such as IBM's AIX operating system product...

That settles it, one would think. But in docket 903, we find this:

Larry Bouffard, Novell's representative in the negotiations of Amendment No. X, has now clarified his previous declaration to confirm that Novell did not intend to make IBM's UNIX System V agreements non-terminable. (Ex. 50 ΒΆΒΆ 36-38.)

Seeing this, I was keen to read the clarification. Unfortunately, the referenced Exhibit 50 is attached to a sealed Declaration of Brent Hatch [876], which SCO hasn't redacted. How did Bouffard "clarify," presumably in a depostion, his sworn statement that "Novell and Santa Cruz no longer had any termination rights," to mean that "Novell did not intend to make IBM's UNIX System V agreements non-terminable?"

Whatever it was Bouffard deposed, SCO sure doesn't want us to know, because the three paragraphs following the quote above are redacted. They contain all of SCO's extrinsic evidence to support its view that the Related Agreements were terminable.

Moving on the argument section of the brief, SCO seems to contend that "irrevocable" means "irrevocable except for breach," while "non-terminable" -- a term that isn't used in Amendment X -- means "non-terminable even for breach." It has no case law to support this position, only a quote from Nimmer:

Especially in cases where the licensed subject matter will be used by the licensee in a context where it will make significant investments in reliance on the continued ability to exercise rights in the licensed subject matter or where the transaction is more akin to an actual assignment of the relevant rights, the license contains terms that provide that it is irrevocable or perpetual. We understand these terms to mean that, insofar as the parties can create this situation by contract without offending overrriding public policy norms, the license cannot be terminated by the licensor or otherwise ended except for breach by the licensee. [Emphasis SCO's.]

The line immediately following the quotation is redacted. This is the high point of SCO's argument. I think it probably is true that the word "irrevocable" in a license contract can mean what SCO says it means, irrevocable except for breach. However, that meaning isn't codified in the case law. Looking within the Software Agreement and Amendment X, we see that the original agreement expressly provided for termination with notice in case of breach. The Amendment doesn't explicitly remove that language, but it provides a negative definition of the "irrevocable nature" of IBM's rights. That is, the irrevocable nature doesn't stop the licensors from seeking remedies for breach other than termination.

Is there enough ambiguity here to create a disputed fact? Perhaps so, but this is only one of several alternative legs supporting IBM's claim for summary judgment. The simple fact that IBM didn't breach the Related Agreements, and Novell's waiver of any breach that IBM did commit, are independent of this line of argument.

[ Reply to This | # ]

Would they really argue this in court?
Authored by: Anonymous on Friday, December 22 2006 @ 01:14 AM EST
With something as outrageous as this, I get the feeling that the end is truely
near. I cannot beleive for one minute that SCO's attorneys are going to argue
these points in open court.

[ Reply to This | # ]

What happened to paragraph 78 and 79?.... I laughed so hard it hurt
Authored by: Anonymous on Friday, December 22 2006 @ 01:29 AM EST
Read the last page, page 25 of http://www.groklaw.net/pdf/IMB-903AppA.pdf

In item 69, they reference SCO facts 73-79, then 77-79

77-79 is supposedly their evidence that AIX is a derivative work.

Now go take a look at
http://www.groklaw.net/pdf/IBM-903part1.pdf

There is no 78 or 79 (page 32 of the 39 page PDF). After 77 there is no gap,
then the argument section begins.

So what is the proof that AIX is a derivative work?

Apparently SCO said it was, in SCO's 2nd amended complaint.


Quatermass
IANAL IMHO etc.


[ Reply to This | # ]

READER BEWARE - Paragraph 55, PP 17-18 of memo (27-28 of PDF)
Authored by: Totosplatz on Friday, December 22 2006 @ 03:31 AM EST

Paragraph 55 of the memo deals with the infamous amendment to the APA, and has a curious re-interpretation of that amendment:

P 17 (27) -

55. The parties' October 1996 Amendment No. 2 to the APA revised schedule 1.1(b) of the APA to clarify that the "Excluded Assets" language was not intended to apply to any "copyrights and trademarks owned by Novell as of the date of the Agreement [the APA] required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare

P 18 (28) -

tecgnologies." (IBM Ex. 444 P A.) Novell thus confirmed its retention of its NetWare copyrights.

Every time I have ever read the infamous amendment it has stated something quite simple - namely that the asset transfer did in fact exclude ALL copyrights, with a few exceptions. In paragraph 55 tSCOg seems to assert something almost exactly the opposite - that NO copyrights were excluded, but that there were a few exceptional cases in which Novell did retain copyright.

The Boys from Boies certainly have a deft way with the pen. A close re-read of what is in paragraph 55 reveals that it's just clever use of available words in quotation which attempt to lead one to an erroneous conclusion. Reader beware! Bah!

From amendment no. 2 -

A. With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:

All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies.

---
All the best to one and all.

[ Reply to This | # ]

  • Yabut - Authored by: Anonymous on Friday, December 22 2006 @ 11:36 AM EST
Sigh
Authored by: rsmith on Friday, December 22 2006 @ 04:08 AM EST
If you read the table of contents, they're trotting out all the old lies again.
Looks like the Big Lie technique is alive and well at SCOG.

Earth to SCOG: assertions are not a substitute for evidence.

---
Intellectual Property is an oxymoron.

[ Reply to This | # ]

What's the Timeline?
Authored by: elderlycynic on Friday, December 22 2006 @ 09:33 AM EST
My understanding is that there is a pretty minor hearing in
January, and several biggies in early March. I think that we
can assume that SCO's request/motion for reconsideration hasn't
er, a prayer, and will be thrown out before March. So it looks
as if there will be a certain amount of hot air and bluster
but otherwise nothing until March. Is that so?

[ Reply to This | # ]

Sanctions?
Authored by: Anonymous on Friday, December 22 2006 @ 10:09 AM EST
Can a judge hand out sanctions severe enough to include not only criminal
charges, but to also have someone disbarred and forbidden from ever practicing
law again? Were it within my power, *I* would certainly wish to make an example
of not only SCO, but BS&F as well (even more so). If you wonder how the law
and lawyers could get a bad rep, you need look no further than BS&Fs tactics
and behavior in this case...

[ Reply to This | # ]

Apples and Bananas?
Authored by: Anonymous on Friday, December 22 2006 @ 10:13 AM EST
SCOG's arguments seem to be in two parallel lines that they want to intersect.

Apples:
In the first part they seem to say here is IBM putting AIX and Dynix code into
Linux. NEVER do they say IBM put UNIX code into Linux.

Bananas:
As the document continues they say WE can terminiate the license because WE own
the UNIX (NOT AIX or Dynix) copyrights.

What I see the argument is:
Now your honor because SOME apples are yellow, and bananas are yellow, and SOME
apples are green, and bananas START green, AND because IBM put some red apples
(JFS etc) into someone elses basket (Linux), IBM cannot distribute oranges
(AIX).

If I click my heels three times and pretend I am in Lindon it makes PERFECT
sense to me.

[ Reply to This | # ]

Any news from Delaware?
Authored by: Sunny Penguin on Friday, December 22 2006 @ 10:28 AM EST
IMHO the Redhat vs SCO case should begin soon.
There was already significant delays in the IBM vs SCO case.
Redhat has posted an earning report showing earnings were down, possibly due to
FUD?

---
This message sent from a laptop running Fedora core 6 with Intel wireless
networking.
Everything works....

[ Reply to This | # ]

Clue stick time.....
Authored by: peterhenry on Friday, December 22 2006 @ 11:12 AM EST
If you happen to read Appendix A, you know, the one with the (well, they didn't
really say it but it kinda, sorta implies it, maybe) arguments, please go to the
LAST sentence on the LAST page. This sums up the thinking of the ostriches at
BS&F:

"Disputed to the extent the statement suggests the Court had ordered,
clearly or otherwise, SCO 'to describe all the allegedly misued materials by
version, file and line of code'"

How can they still be singing this old song ??? Haven't two judges told them
otherwise ? Do they think that this will really fly before the same judges ?



---
--We have met the enemy and he is us......Pogo

[ Reply to This | # ]

Funny/Scary
Authored by: Anonymous on Friday, December 22 2006 @ 11:17 AM EST
I posted on the SCOX message board what I thought would be an obvious joke title
"New Docket Entry". SCO files to compel Judges Kimball and Wells,
also IBM to sign the NDA before they would show evidence.
I thought the joke was obvious but a lot of people have thier "sarcasm
meter" WAY low for SCO. They took it serious.
I think that speaks volumes about the quality of SCO's litigation efforts.
I aplogize to anyone that went to great lengths researching and citing case law
to disprove SCO's ability to make a judge sign an NDA.

[ Reply to This | # ]

"All derivative works"
Authored by: pointman on Friday, December 22 2006 @ 11:18 AM EST
It's old hat by now, but still they manage to claim ownership of everything IBM's ever made after looking at the SysV code:
3. ... IBM remained obligated to hold in confidence all parts of any modifications or derivative works that IBM developed based on the licensed UNIX software product. [my bold]
You would think somebody might have gotten the hint after all these years ...

---
$29.00 and an alligator purse

[ Reply to This | # ]

"Many Eyes" in action. . .
Authored by: Slice on Friday, December 22 2006 @ 11:21 AM EST
Looking over the comments attached to this post, I have to imagine that the
lawyers for BOTH sides of this case must read Groklaw carefully before composing
filings to be submitted to the court.

This document is being picked apart like a turkey carcass after Thanksgiving
dinner.

I pity SCO. . . almost.

Slice

[ Reply to This | # ]

So they admit to everything IBM has been saying all along
Authored by: Anonymous on Friday, December 22 2006 @ 02:51 PM EST
This is hilarious.

They admit that even before this suit was filed IBM was asking them to identify
and clarify what they were claiming, that all they provided was a circular
barrage of vague and unsupported accusations, that IBM repeatedly told them they
were blowing smoke, that IBM warned them of consequences to business relations
if they continued, that IBM even offered them some kind of settlement to drop
the farce, and that SCO instead ignored them and filed suit.

And now they want to claim all of IBM's defenses and counterclaims as reasons
why they should win.

Testicular fortitude in the extreme, albeit severely misplaced.

[ Reply to This | # ]

It's Fun To Charter An Accountant, And Sail The Wide Accountant-Sea
Authored by: Anonymous on Friday, December 22 2006 @ 06:06 PM EST
Hey, everybody!

SCO says IBM offered a settlement early in the proceedings.

1) Sez who? I mean, we know who sez so, but is there anyone that can back this
up? (Even if IBM did, I can't imagine they'd be dumb enough to put themselves
in a situation where it would come back to haunt them.)

2) Assuming there's no proof, can this factor into IBM's counterclaims as
misrepresentation or something? I can't imagine you can claim somebody was
ready to buy their way out of a lawsuit that would damage them with no
consequences.

3) Assuming they did, is what was covered by the settlement known? If IBM
offered to, say, settle the AIX claims, but SCO is making it look like the
settlement covered everything about this lawsuit? I'm just wondering how the
world would have been different had IBM actually settled the Linux suit long
ago.

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

SCO's Redacted Memo in Opp. to IBM's Motion for SJ on SCO's Copyright Claim
Authored by: Anonymous on Friday, December 22 2006 @ 06:47 PM EST
Reading the redacted SCO memo now, and what an amazing thin thread on which SCO
attempts to balance!

For example, para. 6: SCO states: "...over the course of its time as a UNIX
System V licensee, the facts show that no one represented to IBM that its
license agreement had a different scope than as set forth above, and IBM
considered itself obligated to hold AIX in confidence under its license
agreement..."

But !! saying "no one represented to IBM" is a way of 'whistling past
the graveyard' of the Echo newsletter article. Since the Echo was represented to
EVERYONE, i.e., ALL UNIX LICENSEES, and not IBM 'in particular', SCO thinks that
it can get away with this statement reading as nominally true.

So SCO is in effect saying, AT&T saying something to everyone INCLUDING, as
part of everyone, IBM, is DISTINGUISHABLE from AT&T saying it to IBM alone.

Amazing..

[ Reply to This | # ]

SCO Linux 4.0
Authored by: dmomara on Friday, December 22 2006 @ 07:12 PM EST
With JFS. Certainly IBM wouldn't want to continue marketing it for them if there was such a "legal issue".

As they had here.

[ Reply to This | # ]

Judge Wells is gonna be LIVID
Authored by: bigbert on Friday, December 22 2006 @ 07:54 PM EST
"Disputed to the extent the statement suggests the Court had ordered,
clearly or otherwise, SCO 'to describe all the allegedly misused materials by
version, file and line of code'"

She only did this, what, three times? But now SCO is saying "No, Judge,
you're dreaming"? Boy, I would HATE to be there when she replies to that
blatant lie.

---
LnxRlz!

[ Reply to This | # ]
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