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Pacer updates in SCO vs. IBM
Saturday, February 17 2007 @ 07:14 AM EST

There are two memoranda in the SCO-IBM case that will give you something to read this weekend. First there is a redaction of a 200 page SCO memorandum in opposition to IBM's (PSJ) motion for summary judgment on SCO's contract claims; the original was filed in November. Secondly there is a 43-page IBM memorandum in opposition to SCO's Objections to Magistrate Judge's Decision and its Motion to Amend/Correct its December 2005 Submission.

Pacer information:

960 - SCO's Memorandum [SCO v. IBM 872] in Opposition to [780] IBM's Motion for Summary Judgment on SCO's Contract Claims, part 1 of 4 [Filed sealed in 872-875, Redacted in 960] (2006-11-11) Appendix
961 - IBM's Memorandum [SCO v. IBM 961] in Opposition to [913] SCO's Motion to Amend/Correct December 2005 Submission and re: [899] Objection to Magistrate Judge Decision
962 - IBM's Ex Parte Motion [SCO v. IBM 962] for Leave to File Excess Pages for [961] IBM's Memorandum in Opposotion
-- MathFox


  


Pacer updates in SCO vs. IBM | 173 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Saturday, February 17 2007 @ 07:34 AM EST
So MathFox can fix them

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Get Well Wishes for PJ
Authored by: om1er on Saturday, February 17 2007 @ 07:44 AM EST
Get well soon, PJ.

---
Are we there yet?

[ Reply to This | # ]

OT here.
Authored by: Brian S. on Saturday, February 17 2007 @ 07:46 AM EST
Brian S.

[ Reply to This | # ]

Memo to Mathfox
Authored by: inode_buddha on Saturday, February 17 2007 @ 08:13 AM EST
So far this year, I've managed to quit drinking altogether, and have nearly quit
smoking also.

I've still got this Groklaw habit, though.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

That PJ Sighting Web Site--Funny Diversion, Or Possible Business Opportunity?
Authored by: TheBlueSkyRanger on Saturday, February 17 2007 @ 08:22 AM EST
Hey, everybody!

You remember those goofy "Where's Waldo?" books? It featured page
after page of compulsively rendered scenes and you had to locate this singular
character dressed like Harry Potter ver. 1 in there somewhere?

Here's what I envision--"Where's PJ?" Scenes can be rendered for
Comdex, for example. And you have to find a singular character in a red dress.

I don't think she'd ever have to work again, do you?

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Is PJ feeling Crook?
Authored by: Anonymous on Saturday, February 17 2007 @ 09:29 AM EST
PJ spotted at an art gallery
"Crook" - as in "unwell"

[ Reply to This | # ]

SCO Word Play
Authored by: gvc on Saturday, February 17 2007 @ 10:25 AM EST
SCO's argument reminds me of the old trick to prove that 1 + 1 = 3. String together a bunch of nearly true inferences to construct a whopper. (See Dr. Math)

SCO's particular line of illogic is:

  • IBM licensed Unix (true)
  • AIX is a derivative work of Unix (true, but "AIX" is ill-defined, and IBM have not stipulated that anything named AIX is a derivative of Unix)
  • Derivative works are to be "treated the same" as Unix (true)
  • Parts of Unix are not to be disclosed (true)
  • "Methods and concepts" constitute a part of Unix (debatable)
  • Linux contains Unix methods and concepts (though not necessarily via any contribution of IBM's)
  • "Methods and concepts" from AIX may therefore not be disclosed
  • JFS (etc.) contains methods and concepts from AIX
  • JFS (etc.) may not be disclosed
The real reach here is in joining "deriviative works are to be treated the same" and "all parts of Unix" to get "all parts of AIX." SCO of course give no ink to this inference but instead to all the individual points.

A separate fallacy that only became clear to me here is the methods and concepts one: methods and concepts are part of Unix; IBM contributed methods and concepts to Linux; Linux contains Unix methods and concepts. The fallacy here is that the "methods and concepts" in the three clauses of the argument are not the same. In the first clause we have stuff in Unix that is genuinely protectable; in the second we have stuff specific to JFS and not Unix; in the third we have general (probably unprotectable) stuff unrelated to JFS.

[ Reply to This | # ]

Back to Business
Authored by: Steve Martin on Saturday, February 17 2007 @ 11:50 AM EST
I feel a bit of a cad saying this, but while I miss PJ (perhaps) as much as
anyone else here, we must get back to work. PJ has left us her child (Groklaw)
to watch over while she's gone, and we must continue the work, or else TSG
wins.

To that end, if someone can OCR 960 and the Appendix, I'll mark it up and submit
it to Mathfox. (I'll go ahead and do 961, it's a text-based PDF so should be a
bit easier.)

If you do OCR, drop me a response here. Please don't post the entire thing as
text, it'll be huge.


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

[ Reply to This | # ]

IBM memo - some of the points
Authored by: Anonymous on Saturday, February 17 2007 @ 12:09 PM EST
This is for those who have trouble with PDFs.

----------------

Final disclosures (22 Dec 2005) - 326 lines of Linux only

'Testing misuse' - 9282 lines

Item 16 is simply a list of 15 files

SCO claims:

215 - related to alleged contract breaches
79 to infrigement claims

Of these 79, 69 relate to Linux:
Open Group headers
Streams headers
ELF specifications
Other specifications

One item on memory management - this was probably the one presented in a Greek
font long ago

187 claims - no information

+++++++++++++++

Cargil report:
Tried to claim every file in Linux was infringing (~7 million lines of code)

Claims that system calls in Unix are 'owned' by SCO and that these system calls
were in 2.4 (Jan 2001) and 2.6 (Dec 2003) but SCO did not discover this until
April 2006

Ivie report:
~2000 lines of SysV and AIX code is infringing

Rochkind report:
25,378 lines

Adds 73 files to the list given in Item 16. Does not analyse these in any
meanful way merely adds them on.

+++++++++++

SCO claim they didnt understand the Court's July 2005 order

SCO should be allowed to add in evidence in the experts reports and that IBM
agreed to this.

The problem is suggestion that IBM say they never agreed to this and include the
transcripts to prove it. Perjury anyone?

Useful note concerning the Santa Cruz study comparing Linux with Unix

++++++++++++++++

The emphasis here is on the difference between what the court ordered and what
SCO finally handed up.

The court ordered that expert reports be based on and limited to material in the
final disclosures. Seems reasonable doesnt it?

SCO claim to have 'misunderstood' the order (hello??) and that the court allowed
additional material to be used in the expert reports and that IBM agreed to
this.

The court order disagrees with this. The transcripts disagree with this.

Lots of legal argument and re iteration over the same points mostly but it boils
down to what is written above.

SCO are wilfully trying to mislead the court and are disobeying the courts
written instructions. To date SCO have given no satisfactory reason for this
behavior.

IBM go on to remind the judge (a risky move at the best of times) that the
dignity of the court may be prejudiced is such behavior is tolerated.

Not that this isnt spot on. This very much depends on the relationship the
partes have with the court. But the message is clear: SCO had better put some
very fancy foot work in place or risk a very annoyed judge.

--

MadScientist

[ Reply to This | # ]

960 Appendix... WTH?
Authored by: Anonymous on Saturday, February 17 2007 @ 12:42 PM EST

>>>>>>>>>>
4. In the years that followed, AT&T developed numerous
versions of UNIX and made it widely available to
universities and businesses, as well as to the United
States government. (Ex. 389.) AT&T permitted license3es,
including the University of California at Berkeley ("UC
Berkeley"), to develop and add their own features to UNIX
and to distribute those features. (Ex. 488 at *1-2, 18;
Ex. 275 ¶ 13; Ex. 230 ¶ 8; Ex. 389.)

Disputed to the extent the statement suggests that
AT&T had waived any copyright or other legal rights in
UNIX by distributing any version of UNIX during that time.
(¶ 79.) "The mere fact of publishing a copyrighted work
does not give others the right to use, copy modify, or
distribute that work." (IBM Statement of Undisputed Facts
in Support of IBM'S Motion for Summary Judgment on It's
Claim for Copyright Infringement (IBM's Eighth
Counterclaim) ¶ 8.)

<<<<<<<<<<



What's the deal?

IBM merely stated that back in the day, AT&T allowed folks
to distribute THEIR OWN FEATURES to UNIX. Now if only SCO
can only figure out where those millions of lines of UNIX
code in Linux are... :)

I suppose that SCO now wishes they could re-interpret the
AT&T/Berkeley agreement? Tough luck on that one, Darl.
It's on paper, and it's got a lot of undeniable history
behind it. You can't hide the light when it's all around
you. (/me smacks Darl with smelly fish.)

SCO is growing even more pathetic as time goes on.
They're "explaining" to the judge what copyright
protection is really, really, really supposed to be about?
Why? Because they have nothing to offer in the way of
evidence according to the law's normal (strict)
interpretation? It's amazing the Honorable has had this
much patience with Darl and Cohorts.

SCO is trying to make the argument that when something is
copyrighted, the methods and concepts are therefore
protected under that copyright. That's absolute nonsense,
and it doesn't take a genius to figure that out. But it's
even more pathetic because SCO counters IBM with "Oho!
Copyrighted!" when IBM isn't even talking about
copyrighted material, but methods and concepts instead.

Fact is, once methods and concepts are made publicly
known, they are no longer protected. Because the
mechanisms of UNIX are taught in the schools, those
mechanisms have become public knowledge and can no longer
be protected. Once books are released revealing those
same mechanisms, those mechanisms can no longer be
protected (and to think.... These books were released WITH
PERMISSION).

Once there are groups (like Berkeley) who write their own
operating systems based on public knowledge and know-how,
SCO cannot stop it any more than AT&T could (which shows
that the law is the law no matter how hard one tries to
bend the rules to fit a frivolous suit). They lost the
farm when they farmed out the education for UNIX. Sure.
They can say, "You cannot call it UNIX because that is
copyrighted." and they can say, "You cannot copy and paste
stuff from our OS to yours" but they cannot say "Hey! you
stole our M&C!" and they CERTAINLY cannot say, "You are
infringing on our copyrights by using publicly known M&C."

And all that is STILL assuming that SCO holds the
copyrights to UNIX (which is a joke, both in and of
itself).

So Darl... Where's the "Thousands..." nay...
"Truckloads" of lines of copied and pasted UNIX code in
Linux? You claim you own IBM's own homegrown code when
you can't even distinguish between copyrighted material
and M&C? I have to assume that SCO hired you not because
you were smart, but because you were stupid enough to go
through with this. Who's really pulling the ropes here?
Darl can't be smart enough to do it, or is he frothing at
the mouth now to make himself less suspect in an
"insanity" plea to fraud charges.

Ridiculous! After all this time, the courts are still
waiting. IBM is still waiting. Indeed, the world is
waiting. You said long, long ago that you had more than
enough to put this case away... Now... SHOW US THE PROOF
(or go to jail for fraud). What's so difficult? You said
you have it, right?

[ Reply to This | # ]

PJ, I like to think that you are ...
Authored by: Felix_the_Mac on Saturday, February 17 2007 @ 12:51 PM EST

Walking in the Himalayas
Touring the galleries of Florence
On a cruise up the Nile
Relaxing on a Cuban beach after convincing Fidel to switch to Free Software

Hope it's true :-)

[ Reply to This | # ]

Sorry, I can't make it through 960
Authored by: Anonymous on Saturday, February 17 2007 @ 02:45 PM EST
After page 30 of 200 (10 of the filing), I just couldn't take it anymore. I've
read the original agreements and the Echo information. SCO's reading is just so
wrong that I couldn't continue. Yes, there is a plain language reading, but no,
it sure isn't the one that they're making.

[ Reply to This | # ]

Where Angels Fear to Tread...
Authored by: Anonymous on Saturday, February 17 2007 @ 11:42 PM EST
960 Appendix (#66):
>>>>>>>

66. The April 1985 edition of $ echo describes
presentations made by a member of Mr. Wilson's licensing
group, Mr. Frasure, outlining changes that AT&T intended
to make to the licensing and sublicensing agreements as a
result of discussions that MR. Wilson and others in his
group had with AT&T's licensees. (See Ex. 190 ¶ 20; Ex.
217 ¶ 16; Ex. 275 ¶ 20; Ex. 282 ¶ 22.)

Disputed to the extent that the statement suggests
that in April 1985 Mr. Wilson had the lone or ultimate
authority over AT&T's UNIX software licensing, or that Mr.
Wilson or Mr. Frasure alone had the authority to make any
"changes" to the standard licensing and sublicensing
agreements. (¶90.)

<<<<<<<


Am I to understand this correctly? IBM was saying that
because so many home-growers/SysV licensees sought
clarification as to what AT&T would try to claim as their
own, that AT&T changed the language of the license to ease
any fears?

And SCOs argument against this is that Mr. Frasure nor Mr.
Wilson had the "lone or ultimate authority" to change the
license?

That's ridiculous! Of course they didn't have the
"lone or ultimate authority!" Is SCO actually trying to
imply that these gentlemen acted without the authority or
knowledge of AT&T? Why don't they just come out and say
it? Make the claim, SCO. You lost this argument
completely (like so many others).

Is this all SCO's lawyers have left? "No, your Honor.
Those folks changed the intent of the license without
AT&T's knowledge or approval while claiming only to make
the license more clearly understood."

Maybe this coming to light changes SCOs understanding of
intent, but it certainly did not change AT&T's intent.
Just AT&Ts relationships with their licensees proves this
over and over.

Darl McBride. You are the weakest link... Goodbye.


I know this particular $echo newsletter was pointed out by
PJ a while back, but does anyone know of an archive out
there with all the newsletters? Just curious. Thx.

[ Reply to This | # ]

961 grammar
Authored by: Anonymous on Sunday, February 18 2007 @ 12:44 AM EST
is it just me, or is this one of IBM's sloppier works?
It looks like it didn't go through a copy-edit phase -
some of the language is past tense instead of
subjunctive. Weird clauses like. "That wrong."
instead of "That is wrong." Which should have been
caught by a word processor's grammar check.

[ Reply to This | # ]

  • 961 grammar - Authored by: Anonymous on Monday, February 19 2007 @ 08:06 PM EST
  • 961 grammar - Authored by: Anonymous on Tuesday, February 20 2007 @ 10:01 AM EST
Pacer updates in SCO vs. IBM
Authored by: Anonymous on Wednesday, February 21 2007 @ 02:59 PM EST
Per the SCO memorandum, they intentionally confuse the issue regarding IBM's
estoppel arguments.

For example, SCO cites case law that supposedly posits that a party
successor-in-interest of a right/asset is not bound by any estoppel created by a
third party predecessor-in-interest's statements -- meaning SCO would not be
'bound' by statements made by ATT regarding UNIX when ATT was the owner.

But that runs against the basic legal maxim that "you cannot sell more than
you own". Once ATT diminishes (by the Echo article, for example) the scope
of rights of ATT's control over the UNIX licensees, they rights can never
're-emerge' in a successor-in-interest -- i.e., Novell bought the ATT rights as
they were at the time of sale, burdened with the reductions in the rights that
happened during the period of ATT's ownership.

Anything otherwise, absurd legal results would be obtained -- an entity could
diminish its rights by statements and actions where its licensees were intended
to rely, and then the entity could turn around and sell the asset, and the new
asset owner could then sue the licensees, nothwithstanding their (rightful)
reliance on the initial owner?

Absurd, and the law cannot hold this -- I'm certain that SCO is mis-stating the
case law.

By the way, you can search SCO's entire 200 pages of argument and never see the
word "Echo" -- that's very telling.

I call it "whistling past the graveyard".

[ Reply to This | # ]

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