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Report from the Courthouse March 7, Part 2 |
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Thursday, March 08 2007 @ 05:45 AM EST
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Here's Chris Brown's report on the rest of the summary judgment motions argued before Judge Kimball on March 7, 2007 in SCO v. IBM. Part 1 is here.
Three motions were argued. The first two motions of the day were argued simultaneously, IBM's Motion for Summary Judgment on its 8th Counterclaim [PDF, memo in support], which is the one where IBM accuses SCO of GPL violations and hence copyright infringement, and at the same time SCO's Motion for Summary Judgment on IBM's 6th, 7th, and 8th Counterclaims [PDF, memo in support] was argued, in which SCO is asking the court to kill IBM's copyright infringement counterclaims, the ones based on SCO's GPL violations, with the asserted defense that SCO never violated the GPL. Of course, they did, as IBM tells the court, and it asks for its day before the jury on its claims. And because the first motions in this report have to do with the GPL, you may wish to have Groklaw's GPL page handy. The next and final motion argued had to do with IBM's counterclaims for all the trash talk Darl McBride has done "coast to coast", as IBM's Amy Sorenson puts it, SCO's Motion for Summary Judgment on
IBM's Second, Third, Fourth, and Fifth Counterclaims [PDF, memo in support and IBM's memo in opposition]. It's Sorenson's first time, I think, arguing a motion in court in this litigation, as far as I can recall, and one interesting detail she provides is a money figure regarding damages. When SCO tried to claim that IBM hasn't suffered any damages from its PR campaign, she reminds the court that McBride himself at one point told the press that there had been a 20% reduction in Linux adoption, and that alone equates to a $672 million loss. Actually, she tells the court, IBM has demonstrated damages in excess of $40 million attributable to litigation fees and having to respond to SCO's public statements. SCO's defense was that all the trash talk is privileged, because it was done in connection with litigation, but Sorenson argued that Darl's letter to Congress, for one example, far exceeded any privilege or qualified privilege. And Chris Brown's report includes the detail that Sorenson told the court that there is evidence that SCO knew that their statements were false, raising the issue of bad faith. IBM wants its Lanham Act claims to go to a jury, where McBride's state of mind when making his claims about AIX and Linux can be determined by a jury. I know. It's so funny, to my geek brain, that his state of mind will be officially determined by a jury. Ooo, ooo, can I speak to the jury about that subject? Joke. Joke. Chris has, as usual, done an outstanding job, and we thank you.
There is a reference in the arguments to a 2004 Fortune article, "Gunning for Linux The free operating system--backed by IBM, HP, and others-- is breaking Microsoft's monopoly. But a lawsuit by SCO, which claims to own parts of the code, could wreck the party": In the ascetic waiting room of the SCO Group's Lindon, Utah, headquarters, the only reading matter is a stack of beige, telephone-book-sized binders. They are volumes I, II, III, and IV of the company's press clippings. For the previous month. SCO (pronounced "skoe," to rhyme with "snow") is already notorious in three insular communities. As for many of Darl McBride's early and copious public comments, you can find them in Groklaw's Quote Database, on his page. Yes, this is me. No. I'm not really back. I'm still sick, but I sat up long enough to do this. And now, back to sleep for me. By the way, I think our count must be off, because I see 9 summary judgment motions on our chart, and I can only account for seven (2 on March 1, 2 on March 5, and 3 on March 7). So there must have been some doubling up that our reports didn't indicate or conceivably the parties felt that no argument was required for two of them. My best guess is that we just missed some. We will be able to figure it out when the full transcripts arrive. But I have missed a lot, being more asleep than awake for the past few weeks, and so I can't parse it out currently. Forgive me if I haven't responded to emails. Same reason. I will read them and write back to you after I feel better. Here's Chris's report:
******************************
IBM's Motion for Summary Judgment on IBM's 8th Counterclaim and SCO's Motion for SJ on IBM's 6th, 7th, and 8th Counterclaims
After the break Judge Kimball heard arguments on IBM's Motion for Summary
Judgment on IBM's Eighth Counterclaim (#784) in conjunction with SCO's Motion
for Summary Judgment on IBM's Sixth, Seventh, and Eighth Counterclaims
(#777). The lawyers represented they would take 20 minutes a side.
IBM's Mr. Marriott argued first. While he handed out the nearly
obligatory books (always with tabs), Judge Kimball rhetorically asked
"What would we do without these books?"
Mr. Marriott said there are 16 works that are at issue in this claim
of IBM works in Linux. Collectively they represent over seven hundred
thousand lines of code in stark contrast to the 326 lines SCO claims IBM
infringed. IBM owns the copyrights and is entitled to presumption of
ownership. IBM timely registered copyrights to the sixteen works at issue.
SCO's Linux server contains each of the sixteen works at issue, he argues. SCO
acknowledges it is undisputed that SCO distributed each of the copyrighted
works. SCO also has stated it is undisputed that SCO's only right to distribute
is under the terms of the GPL or the LGPL.
SCO lost its permission to distribute under the GPL by repudiating
the terms of the GPL and when it acted in excess of the terms of the GPL.
SCO's CEO Darl McBride has declared publicly, and in this court, Marriott said, that the GPL is unenforceable, void, voidable, that it violated the US
constitution, copyright, anti-trust, and export control laws. Those
statements represent a repudiation of the GPL.
Putting aside repudiation, Marriott continued, SCO lost its rights by breeching several
terms of the GPL in two ways: First, by restricting recipients'
distribution rights. For example on SCO's website, it states that the
license that SCO says is required to use Linux does not grant any rights
to redistribute. Second, SCO restricted rights to distribute source
code. SCO states that it grants the right to use their IP in binary
format only, that it does not grant rights to use the source code. SCO
stated the same in press releases.
IBM owns the copyrights, SCO distributed, and SCO breached the GPL.
SCO lost their rights.
SCO's turn:
SCO's Edward Normand presented next. He stated that IBM's three
counterclaims are merely retaliation against SCO for its efforts to
enforce its intellectual property rights.
Linux is an unauthorized derivative of Unix, he claimed. SCO has not breached the
GPL. IBM has unclean hands. IBM's only damages are for legal fees.
SCO allegedly breached by issuing licenses, he argued. The Unix property in
Linux was never under the GPL. The GPL applies to code released with a
notice that it's under the GPL. To place code under the GPL the
copyright holder must place a copyright notice and copy permissions in
each source code file.
The "Unix Material" is not part of the "Program" (Linux).
We may have been a licensee under the GPL, but we were not a licensor
of the GPL.
SCO considered contributing the Unix material under the GPL, but never
decided to do so. Ransom Love stated that had they done so, it would
likely have been done under a more commercially friendly license.
SCO has not placed any GPL notice in any of its Unix code.
A licensee makes no assertion as a licensor of GPL when distributing
GPL software.
Regarding GPL section six, each time you redistribute the program, the
recipient receives a license from the original licensor. SCO has not
sold or attempted to sell a license to any recipient who received a
Linux distribution from SCO.
Pertaining to Section 2 of the GPL, SCO did not modify Linux.
SCO has not repudiated the GPL, Normand claimed. SCO has done no such thing. A
repudiation occurs when a party refuses to perform and communicates that
refusal to the other party. IBM quotes Darl McBride's testimony which,
at most, constitutes misgivings about the GPL, a view shared by many
commentators, but does not indicate a refusal to perform.
SCO's license states it is for SCO's intellectual property, not the
whole of Linux.
Linux is an unauthorized derivative work of SCO's Unix technology, he continued.
Copyright case law is clear that no part of an unauthorized derivative
is eligible for copyright protection.
IBM has unclean hands by inappropriately contributing code to Linux
such as JFS, Normand continued. Additionally, IBM "hacked into" SCO's website to
improperly obtain evidence.
IBM responds:
IBM's Mr. Marriott responded. He asserted there was no "hacking" of
SCO's website.
With respect to repudiation, SCO claims that Darl McBride simply
expressed "misgivings" about the GPL. SCO has presented sworn testimony
that the GPL is void, unconstitutional, unenforceable, etc. "If that's
not a repudiation, I don't know what is."
Mr. Normand replied again, but I don't have notes of what he said.
This concluded oral arguments on these motions.
SCO's Motion for Summary Judgment on IBM's 2nd, 3rd, 4th and 5th Counterclaims
Next the court heard argument on SCO's Motion for Summary Judgment on
IBM's Second, Third, Fourth, and Fifth Counterclaims.
Brent Hatch argued for SCO, first stating that SCO's CEO Mr. McBride
was hired to re-energize SCO because he had experience in this kind of
business, not because he has litigation experience.
Responding to customer's requests that something be done to allow use
of Unix technology in Linux, SCO approached companies with their
licensing program. SCO had broad support including from companies such
as HP. There was only one business that balked: IBM. "SCO was
attempting to work with the Linux community. IBM was just looking out
for IBM."
IBM's Jim Stallings, in 2003, said that he hasn't seen any evidence
the market has slowed down, Hatch said. Again in 2004, he stated that despite the
litigation, Linux adoption has accelerated. In 2005 (some other person)
said Linux adoption is accelerating and that this lawsuit is the best
thing to have happened to Linux.
SCO's statements are protected by absolute or qualified privilege as
they were made in conjunction with the lawsuits.
There is a dispute whether Linux is a derivative of Unix. SCO's saying
there are millions of lines of code in those products is a good-faith
statement.
Official IBM internal documents talk about derivative work, he started to say, but IBM's
Amy Sorenson pointed out to Judge Kimball that the document Mr. Hatch was
discussing is marked confidential. There was a brief discussion, during
which Judge Kimball started to clear the courtroom, though then it was
determined both that Judge Kimball can read and Mr. Hatch can refer to
the document. It seemed to be referring to as SCO's alleged violation number 134,
and it was noted that IBM claims it is irrelevant and hearsay.
IBM's turn:
IBM's Amy Sorenson argued next. She said that despite what SCO's
arguments suggested, IBM's concern isn't solely about statements made in the
judicial proceedings. IBM's actual counterclaims are for violation of the
Lanham Act, disparagement, unfair competition, misappropriation of AIX
and Linux products... SCO engaged in nothing short of a PR campaign
against IBM over years from coast to coast.
The representations made to the press do not match up, and never will match up, to
its claims.
Ms. Sorenson quoted Judge Kimball's statement about SCO's "plethora of
public statements," Mr. McBride's letter to Congress stating that Linux
is a threat to our nation's economy and its security and she argued that the letter far exceeds
any qualified privilege. Describing SCO's volume of over-publication,
she quoted a 2004 "Fortune" magazine article that starts with describing
SCO's waiting room reading material is volume 1, 2, 3, & 4 of telephone
book-size compilations of press releases over the previous month.
There is evidence that SCO's statements are in fact bad faith in that
they knew their statements were and are false, Sorenson argued.
Mr. McBride's state-of-mind in making his claims of ownership of AIX
is not amenable to summary judgment.
She referred to Mr. McBride's public assertion to the press of a
twenty percent reduction in Linux adoption, which SCO would like to
disavow now, would equate to $672 million in loss. IBM has demonstrated
damages in excess of $40 million in litigation fees and responding to
SCO's public statements.
SCO's Brent Hatch responded with a few sentences and rested.
Judge Kimball speaks:
Judge Kimball indicated he would take all the arguments under
advisement and rule when he can. His last words were "Thank you, it's
been so good to spend these three afternoons with you all."
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Authored by: kh on Thursday, March 08 2007 @ 05:59 AM EST |
Interesting items about other issues.
Try and put in clickable html links but if it's too difficult put the URLs in as
text anyway.[ Reply to This | # ]
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- OH NO! - Authored by: Anonymous on Friday, March 09 2007 @ 01:06 PM EST
- I'm sorry you're still sick, PJ - Authored by: billyskank on Thursday, March 08 2007 @ 10:19 AM EST
- Novice GPL/LGPL questions please - Authored by: Anonymous on Thursday, March 08 2007 @ 10:20 AM EST
- UK shadow chancellor advocates open source - Authored by: Anonymous on Thursday, March 08 2007 @ 10:37 AM EST
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- Linux Mint! - Authored by: MDT on Friday, March 09 2007 @ 12:21 AM EST
- Window Dressing: "Microsoft lands first licensee in EU protocol program" - Authored by: Brian S. on Friday, March 09 2007 @ 12:23 AM EST
- What is it about magazines with Linux in the title? - Authored by: billyskank on Friday, March 09 2007 @ 04:18 AM EST
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- MS OneCare destroying Outlook e-mails - Authored by: Anonymous on Friday, March 09 2007 @ 11:03 AM EST
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- OH NO! - Authored by: Anonymous on Friday, March 09 2007 @ 01:09 PM EST
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- What's up with SCOX? - Authored by: tiger99 on Friday, March 09 2007 @ 03:39 PM EST
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- More Linux Goodness LinuxBIOS + a Linux kernel + BusyBox + a tiny X11 server (Kdrive) + MORE - Authored by: Anonymous on Friday, March 09 2007 @ 05:41 PM EST
- Amazing!!!!!!! PJ wakes up briefly, yawns, says howdy and SCOX stock crashes under the $1 mark.. - Authored by: SirHumphrey on Friday, March 09 2007 @ 09:48 PM EST
- SPJ Legal Defense Fund grant aids photographer’s defense - Authored by: Anonymous on Friday, March 09 2007 @ 10:00 PM EST
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Authored by: MDT on Thursday, March 08 2007 @ 06:06 AM EST |
Clicky's if needed!
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MDT[ Reply to This | # ]
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Authored by: MDT on Thursday, March 08 2007 @ 06:07 AM EST |
Hey PJ! Glad to here you are feeling a little better, even if you are still
sick. Please take care!
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MDT[ Reply to This | # ]
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- HI PJ! - Authored by: Anonymous on Thursday, March 08 2007 @ 06:19 AM EST
- Get well, PJ! - Authored by: achurch on Thursday, March 08 2007 @ 06:34 AM EST
- Welcome "not really back"! - Authored by: pajamian on Thursday, March 08 2007 @ 06:41 AM EST
- Mathfox sure is getting good...oh Hi PJ - Authored by: CraigV on Thursday, March 08 2007 @ 07:02 AM EST
- HI PJ! - Authored by: Anonymous on Thursday, March 08 2007 @ 07:04 AM EST
- WOOT Good to hear from you! Go back to bed! - Authored by: Anonymous on Thursday, March 08 2007 @ 07:14 AM EST
- HI PJ! - Authored by: pointwood on Thursday, March 08 2007 @ 07:14 AM EST
- Good to hear from you - Authored by: snorpus on Thursday, March 08 2007 @ 07:15 AM EST
- HI PJ! - Authored by: Steve Martin on Thursday, March 08 2007 @ 08:01 AM EST
- HI PJ! - Authored by: BC on Thursday, March 08 2007 @ 08:49 AM EST
- HI PJ! - Authored by: Bill The Cat on Thursday, March 08 2007 @ 09:11 AM EST
- HI PJ! - Authored by: Anonymous on Thursday, March 08 2007 @ 09:23 AM EST
- Taking a Break from Your Break - Authored by: llanitedave on Thursday, March 08 2007 @ 11:12 AM EST
- :) - Authored by: DaveJakeman on Thursday, March 08 2007 @ 11:26 AM EST
- Outstanding! - Authored by: Steve Martin on Thursday, March 08 2007 @ 06:14 PM EST
- :) - Authored by: Anonymous on Thursday, March 08 2007 @ 07:39 PM EST
- Your unique style! - Authored by: ilde on Thursday, March 08 2007 @ 12:50 PM EST
- get better soon - Authored by: sumzero on Thursday, March 08 2007 @ 01:51 PM EST
- HI PJ! - Authored by: seeks2know on Thursday, March 08 2007 @ 02:17 PM EST
- HI PJ! - Authored by: sjlilley on Thursday, March 08 2007 @ 02:21 PM EST
- Get well soon! :( - Authored by: Anonymous on Thursday, March 08 2007 @ 02:39 PM EST
- PJ - pls accept best wishes - Authored by: dmarker on Thursday, March 08 2007 @ 04:19 PM EST
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- HI PJ! - Authored by: bigbert on Thursday, March 08 2007 @ 09:44 PM EST
- HI PJ! - Authored by: Tyro on Friday, March 09 2007 @ 12:18 AM EST
- HI PJ! - Authored by: rjamestaylor on Friday, March 09 2007 @ 01:43 PM EST
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Authored by: Anonymous on Thursday, March 08 2007 @ 07:25 AM EST |
"SCO's Edward Normand presented next. He stated that IBM's three
counterclaims are merely retaliation against SCO for its efforts to enforce its
intellectual property rights."
So what?
"Linux is an unauthorized derivative of Unix, he claimed."
This question is before the court.
"SCO has not breached the GPL."
This is the motion being argued.
"IBM has unclean hands."
Before the court.
"IBM's only damages are for legal fees."
Before the court
"SCO allegedly breached by issuing licenses, he argued. The Unix property
in Linux was never under the GPL.
What Unix property? Also what rights do SCO hold over any Unix property?
"The GPL applies to code released with a notice that it's under the GPL. To
place code under the GPL the copyright holder must place a copyright notice and
copy permissions in each source code file."
Yes. So what?
"The "Unix Material" is not part of the "Program"
(Linux).2
So what is SCO doing in court then?
"We may have been a licensee under the GPL, but we were not a licensor of
the GPL."
Fine. So why then did SCO decide that they had the unilateral right to alter the
conditions of the GPL by requireing SCO IP licences?
"SCO considered contributing the Unix material under the GPL, but never
decided to do so. Ransom Love stated that had they done so, it would likely have
been done under a more commercially friendly license."
Irrelevent.
"SCO has not placed any GPL notice in any of its Unix code."
Irrelevent.
"A licensee makes no assertion as a licensor of GPL when distributing GPL
software."
Irrelvent.
"Regarding GPL section six, each time you redistribute the program, the
recipient receives a license from the original licensor."
From the GPL itself.
"SCO has not sold or attempted to sell a license to any recipient who
received a Linux distribution from SCO."
Really? Ask AZ or DC about this.
"Pertaining to Section 2 of the GPL, SCO did not modify Linux."
False. It is on the record already that SCO employees with the knowledge of
thier management made contributions to Linux. The streams story springs to mind
for example.
"SCO has not repudiated the GPL, Normand claimed. SCO has done no such
thing."
Waffle
"A repudiation occurs when a party refuses to perform and communicates that
refusal to the other party."
Waffle.
"IBM quotes Darl McBride's testimony which, at most, constitutes misgivings
about the GPL, a view shared by many commentators, but does not indicate a
refusal to perform."
Matter for the court to decide. Im not at sure that the record would agree with
that. 'We own C' was a classic DMcB. Its part of the problem for SCO now: DMcB
was a very good cheerleader for the law suit. Now his comments have come back to
bite them.
"SCO's license states it is for SCO's intellectual property, not the whole
of Linux."
Would somebody please tell us and the court what exactly is
'SCO's intellectual property' because no one has been able to find it yet.
"Linux is an unauthorized derivative work of SCO's Unix technology, he
continued."
Before the court.
"Copyright case law is clear that no part of an unauthorized derivative is
eligible for copyright protection."
Playing to the gallery.
"IBM has unclean hands by inappropriately contributing code to Linux such
as JFS, Normand continued."
This presumably refers to the contract debate. You see IBM ever since they
signed that contract with AT&T have been secrtely working for AT&T. All
thei code stored in thier servers really belongs to AT&T. Since no copyright
transfer was signed over to SCO all the code belongs to AT&T. And IBM paid
lots of dollars for the priviledge of working for AT&T.
If this makes any economic or business sense to you let me know. Looks like
legal insanity to me.
"Additionally, IBM "hacked into" SCO's website to improperly
obtain evidence."
This is a matter of the applicable law. The court has yet to rule on this.
--
Overall a very lightweight effort. The only chance I see of SCO pulling
something out of this is on the unclean hands doctrine. And even that is
debatable.
I suspect a ruling on much of this may be held over until the copyright issues
are clarified. If SCO dont own anything in Unix they have no right to anything.
Thier contract understanding is complete nonsense. If the contract issue are
settled then the mess here simply goes away - with the possible exception of the
unclean hands.
Of course IBM's Lanham Act claims are still viable. Since the facts (expert
reports mostly) will be disputed this is heading fast for a jury trial.
We might be a while waiting for a ruling here.
--
MadScientist[ Reply to This | # ]
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- Nitpick C / C++ - Authored by: Cyberdog on Thursday, March 08 2007 @ 08:10 AM EST
- Pounding on the table - Authored by: pdqlamb on Thursday, March 08 2007 @ 09:18 AM EST
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- Report from the Courthouse March 7, Part 2 - Authored by: Anonymous on Thursday, March 08 2007 @ 05:28 PM EST
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- Report from the Courthouse March 7, Part 2 - Authored by: LaurenceTux on Friday, March 09 2007 @ 03:33 PM EST
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Authored by: Anonymous on Thursday, March 08 2007 @ 07:27 AM EST |
Oh boy, press clippings available in the waiting room at SCO HQ!!
I've never seen any other company doing that.
The despicable fact gets even mentionned in press articles.
Wow![ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 08 2007 @ 09:15 AM EST |
Judge Kimball indicated he would take all the arguments
under advisement and rule when he can. His last words
were "Thank you, it's been so good to spend these three
afternoons with you all."
When you have been meeting with some people, and you are
leaving and are not expecting to see them again soon, you
probably would make such a statement
Is this the judge indicating that he already has made up
his mind about these motions ?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 08 2007 @ 10:43 AM EST |
"The "Unix Material" is not part of the "Program"
(Linux)."
Did the SCO lawyer really say this? Doesn't this completely contradict
everything they've been saying about Unix in Linux?[ Reply to This | # ]
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Authored by: pcoady on Thursday, March 08 2007 @ 11:16 AM EST |
This statement from Mr. Singer has to stand as one the funniest
yet!
...
IBM is jumbling together acts made by Caldera and acts
taken by SCO. He put up an equitable estoppel timeline chart (not visible to
us). He reminded the judge that it was shown on Monday (we did not see this
chart Monday, so I assume it was used while the courtroom was closed). He said
that the copyrights were owned by Santa Cruz. Santa Cruz was not in the Linux
business when IBM set up the Linux Technology Center and contributed the code to
Linux. Actions made by Caldera, or anyone else that was contributing to Linux,
don't matter. They were not the copyright holder....
SCOX has
often tried to mix Santa Cruz, Caldera, and SCOX to confuse. They have also been
each "SCO" in turn as it suited them--but I do not recall them ever claiming to
be and have full rights of each in turn in one argument before.
Santa
Cruz knew of the IBM Linux actions and did not try to prevent or sue: Estoppel
One. Caldera's business was Linux and they didn't sue: Estoppel Two. SCOX is
Caldera and they didn't sue in a timely manner: Estoppel Three. SCOX claims to
have inherited Santa Cruz's rights: Santa Cruz did not sue in a timely
fashion--therefore SCOX may not either: Estoppel Four. SCOX continued to
distribute under GPL: Estoppel Five.
How many different ways does one
need to set up to lose a single motion?
And all this of course is mute
if Novell, Santa Cruz(Tarantella), or United Linux hold the valid Unix
copyrights in the first place. It is pretty clear that SCOX doesn't have proof
of holding any other than to some manuals. Judge Kimball has already noted this
absence of proof--even though he allowed discovery to go forward and held
PSJ.
IANAL
"To every complex problem there is a simple solution--and it is
wrong." HL Menchen[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 08 2007 @ 11:17 AM EST |
I'm not sure which statement was more shocking:
"We may have been a licensee under the GPL, but we were not a licensor of
the GPL."
Then how were you able to redistribute it?
"A licensee makes no assertion as a licensor of GPL when distributing GPL
software."
If, and I stress if, there a line of code in Linux that belongs to SCO, and SCO
distributes that to someone under the GPL, how is that not licensing that code.
I just don't get it.
But my favorite one is this.
"SCO was attempting to work with the Linux community."
Isn't that like when the mob tries to "work with" the small shop
keeper to make sure his store doesn't get robbed, for a small fee.[ Reply to This | # ]
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Authored by: MplsBrian on Thursday, March 08 2007 @ 12:24 PM EST |
but, for the purposes of this litigation, does SCO even have any UNIX
copyrights? They claim:
"SCO has not placed any GPL notice in any of its Unix code."
But, as I recall, they were asked to explicitly state the materials to which
they have copyright, and how they came by those rights, etc. Again, as far as I
can tell, they've not explicitly proved any UNIX copyrights, so can they refer
to them when arguing for/against summarry judgements?
They're supposed to say "Joe wrote 'EPAIR = 1' on March 7, 1987 as part of
a UNIX release 2.3 when working for AT&T. In 199x AT&T sold the rights
to Novell. In 199x Novell (allegedly) sold the rights to Santa Cruz. In 199x
Mr X added 'EPAIR = 1' to Linux, in violation of said copyright. Subsequently,
Caldera (allegedly) acquired the rights from Santa Cruz.
If they've not properly established such a chain for each piece of code for
which they claim rights, doesn't the whole case fall apart? Have they claimed
any explicit copyrights over UNIX code, other than a blanket statement of
"we own all of it?"
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Authored by: Anonymous on Thursday, March 08 2007 @ 01:28 PM EST |
W E L C O M E B A C K ! ! ! ! !
We missed you deeply.
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Authored by: Anonymous on Thursday, March 08 2007 @ 03:09 PM EST |
They're trying to make each of IBM's PSJs depend on other PSJs. So none of them
can be decided, because the others have to be decided first.
I don't think it's going to work, but it looks like a very consistent pattern in
these hearings.
MSS2[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 08 2007 @ 03:15 PM EST |
"...SCO considered contributing the Unix material under the GPL, but never
decided to do so. Ransom Love stated that had they done so, it would likely have
been done under a more commercially friendly license..."
Didn't Ransom Love also state that once they looked at the copyright issue they
determined that there were too many copyright holders in UNIX, and that to track
down all of them and get clearance to open source the code was not practical?
That would seem to shoot holes all through SCO's arguments. If there were all
those copyright holders out there in 2001, then how can SCO now claim to own all
the copyrights?
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Authored by: Anonymous on Thursday, March 08 2007 @ 04:13 PM EST |
PJ would have to be sick indeed to resist popping in to see what went on at the
PSJ hearings.
Get well soon, PJ. We miss you.
MSS2[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 08 2007 @ 04:28 PM EST |
Am I mistaken, or were these hearings for SJ instead of PSJ. I thought PSJs
were Preliminary Summary Judgements and were very early in the case and these
recently argued issues were Summary Judgements. Throughout these comments,
about all I see for abbreviations is PSJ.[ Reply to This | # ]
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- PSJ vs SJ - Authored by: Anonymous on Thursday, March 08 2007 @ 04:35 PM EST
- PSJ vs SJ - Authored by: Steve Martin on Thursday, March 08 2007 @ 06:17 PM EST
- PSJ vs SJ - Authored by: Kevin on Friday, March 09 2007 @ 09:44 AM EST
- PSJ vs SJ - Authored by: Anonymous on Friday, March 09 2007 @ 10:21 AM EST
- PSJ vs SJ - Authored by: LaurenceTux on Saturday, March 10 2007 @ 01:06 PM EST
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Authored by: Anonymous on Thursday, March 08 2007 @ 05:40 PM EST |
Linux is an unauthorized derivative work of SCO's Unix
technology, he continued.
Copyright case law is clear
that no part of an unauthorized derivative is eligible for copyright
protection.
Of course, I'd want verification by other legal eagles
before I take SCOGs word that no part of an unauthorized derivative is eligible
for copyright protection.
Let's assume for a moment that is true though.
Wouldn't that make MS' whole code base unprotectable? All it would take is a
single author to create an unauthorized derivative to make everything that is
part of that derivative unprotectable. MS has certainly lost a very high number
of lawsuits due to their activities with regards to "IP".
Hmm... methinks
SCOG has mis-interpreted copyright law again!
Let's see... back to SCOGs
reading.... that would mean that they're free to distribute Linux as long as
they want because no copyrights exist on that "unauthorized"
derivative.
Ooops, another mis-reading with regards copyright law
methinks. Imagine that kind of reading as part of the criminal system:
But
you're Honor. I can't possibly be charged with stealing a car that was already
stolen.
I'm thinking Kimball is going to have a field day putting together
a complete list for his decisions on these.
RAS
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Authored by: jbb on Thursday, March 08 2007 @ 06:03 PM EST |
It was wonderful to hear from you, but please rest up so
you can be all better
for the celebration when SCO becomes
nothing more than a smoldering caldera in
Linden Utah.
--- You just can't win with DRM. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 08 2007 @ 07:34 PM EST |
Did anyone else notice that CS&M used baseball analogies in their
presentation to the judge? I find that interesting, because I think the judge
had previously used them, too, so it's just yet another small way they're paying
close attention to this case.
I have to say, though, if I needed a lawyer and I could afford them, CS&M
would be at the top of my list for law firms to hire. Especially if you can
spare no expense like IBM can, they can certainly do an incredible job of
representing you.[ Reply to This | # ]
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Authored by: Anonymous on Friday, March 09 2007 @ 07:19 AM EST |
As I read Singer's statement on the matter of SCO avoiding IBM's estoppel
claims:
"Actions made by Caldera, or anyone else that was contributing to Linux,
don't matter. They were not the copyright holder...."
I'm reminded of the doctrine of "merger" (or "merger of
estates") that arises in property law, and applied it here (as a thought
experiment),
Here's the doctrine:
Party A owns a Parcel A of land that is landlocked (no access road) by Party B's
land (Parcel B). Party A, by action of the law of "easement by
necessity", gets an automatic legal right of easement across Parcel B as an
access road to Parcel A.
Later, Party A later buys Party C's land (Parcel C), which also abuts Parcel A.
Party A finds that he can now reach Parcel A by traversing the parcel he has
acquired from Party C.
As a result of the subsequent purchase, Party A's rights to easement across
Parcel B are extinguished. The cumulative rights that Party A has in his
original parcel and his Parcel C are subject to MERGER, and the result of his
merged rights is a diminution of his otherwise-cumulative rights, i.e., he loses
the easement right across Parcel B.
Now - apply that logic with Caldera's acquisition of certain parts of Santa
Cruz. Caldera's actions and statements prior to the acquisition were made to
customers, co-venturers, etc, with the intent that those parties would invest
and rely on the representations and statements of Caldera.
Caldera then purchases some UNIX rights through the Santa Cruz - Caldera
transaction. Putting aside that Santa Cruz's own actions act as an
estoppel/waiver, the rights of Caldera in any legal suits/ causes of actions
that could have been brought by Caldera are diminished by the same logic as the
doctrine of "merger of estates".
In other words, both corporate "persons" now exist in the merged
entity. the rights of the newly acquired 'corporate person' (Santa Cruz) cannot
supercede the logical diminution caused by the existence of the original
"corporate person" (Caldera).
Any other conclusion, and absurd results would follow, and SCO's actions in the
suit are a prime example of the absurdity. A entity cannot take actions that
others have a legal right to rely upon, and then effectively foreswear those
actions via the purchase of a subsequent 'estate', ie, via a corporate
merger/purchase. This would effectively perpetrate a fraud on the
persons/entities who relied on the entity's original actions.
The law NEVER works that way.
LexLaw
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Authored by: Anonymous on Friday, March 09 2007 @ 03:47 PM EST |
"...IBM is jumbling together acts made by Caldera and acts taken by SCO.
"
Your Honor, tell them to stop trying to mix up Santa Cruz, Caldera and SCO!
They're just doing it to confuse the issues!
We're SCO, and have been for 25 years! [ Reply to This | # ]
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Authored by: jog on Friday, March 09 2007 @ 07:55 PM EST |
Judge is skeptical about prosecution theory but signs off
anyway.
jog
http://www.wilmingt/apps/pbcs.dll/article?AID=/20070309/APA/703092749[ Reply to This | # ]
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Authored by: Anonymous on Friday, March 09 2007 @ 09:38 PM EST |
IANAL and all that. Which I find superfluous. If I WAS a lawyer, I'd pretty much
have ruiles barring me from spreading free legal advice anyways. Just because we
are talking about a license and contract doesn't mean we are providing legal
advice. I don't get why everyone gets their pants in a bunch everytime there is
talk of a legal subject.
You have to provide source to all who asks for it. That's what it says. You
don't need no stinkinhg lawyer to parse that bit of English. As a practical
matter, you'd want to provide proper contact information. If they can't contact
you, they can't find you, and by definition you are not making it available.
That means if you don't expect anyone to ask for it, all you have to do is keep
the source in safekeeping untill someone asks.
If you put the source on a public site, you can save yourself the hassle of
responding to requests for your source. The whole point is to not take away
rights that others have given you, and make it easy for those who received your
code to make their own modification. If you have a problem with that, maybe open
source is not for you.
So as a practical matter, it seems best to publish it. It makes you in
compliance, and you get no hassle. Always distributring the source with the
binaries should work as well, even if it was on a separate CDROM. Then you have
the question: Well, I got the CDROMs, and passed one of them it to someone else,
and they are now asking for the source, which I don't have. Are you still
obligated to provide the source again? You already gave it once. So as a
practical matter, put it on a web site or ftp site. Does sourceforge count? You
don't have full control over sourceforge, so maybe not. Adn if the source is
from another project and you made no changes, then it does not belong on
sourceforge anyways. What if you made no changes? I am not sure. I am not that
well versed in the GPL.
If all you did was compile the source and ship it as binary, adn teh sources are
generally available from public archives suich as ftp.gnu.org, your behind
oughta be covered by stating where you got the source, include your own contact
info, a link to the 3rd party site, adn in addition make a copy for yourself, in
case you get a direct request. For example, if this was gcc, they'd probably be
much better off getting updates from the offical source than trying to tweak the
old ersion that you would be shipping them.
If you mix GPL code with proprietary code it gets a bit more complicated. Now go
see a lawyer, but preferrable one that is well versed in software. In fact I'd
much more recommend a good techie well versed in the GPL than a lawyer ignorant
about software.
That's not legal advice, just common sense. [ Reply to This | # ]
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Authored by: DMF on Saturday, March 10 2007 @ 02:20 PM EST |
A licensee makes no assertion as a licensor of GPL when distributing
GPL software.
Would someone please explain this?
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Authored by: iraskygazer on Tuesday, March 13 2007 @ 12:44 AM EDT |
This entire case is about one thing, money.
Remember in the past Caldera wanted to kill SCO UNIX. When they finally had the
chance, after the purchase of Unixware, they didn't because Caldera saw there
was too much money to collect from the UNIX stream of products. So they changed
their direction 180 degrees away from their original 'failing' Caldera Linux to
support UNIX; and much more money was to be had from UNIX vs the old Linux. And
don't forget about the name change from Caldera to SCO (of course different
entities from before Caldera purchase when compared to the current name on the
stock exchange.)
All this proves one thing. New SCO is schizophrenic and has really struggled
with what it should do internally with itself since only one operating system
can survive.
The shame of all this is that this court case will cost software consumers
millions, albiet indirectly.[ Reply to This | # ]
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