|
IBM's "Complete Defense" To Any SCO Claim of Copyright Infringement - Transcribers Needed |
|
Monday, July 12 2010 @ 06:09 AM EDT
|
Back in 2006, IBM filed a document in the SCO v. IBM litigation that includes five reasons IBM told the court it has what it called "a complete defense" to any SCO claim of copyright infringement, even if SCO had any UNIX copyrights, which a jury in Utah has just ruled it doesn't. It talks about
ELF, Streams, all the oldies and goodies, the claims that survived Magistrate Judge Brooke Wells's order granting IBM's motion to limit SCO's claims as a sanction. Most of SCO's list of allegedly infringed materials,
filed by SCO under seal, was tossed for lack of specificity. It wasn't a long list, in any case, as you will see, judging from IBM's math.
I just noticed we never did this memorandum as text. Can anyone help by doing an OCR for us, so we can add it to our collection on Groklaw? Before you say yes, it's long, in two parts, IBM's Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-infringement (IBM's Tenth Counterclaim}: Part 1
Part 2
Even the title is long. If the SCO v. IBM case gets resurrected, unlikely but conceivable as long as SCO's appeal in the Novell litigation is still pending, it will be important to have this as text. It was never ruled on because SCO filed for bankruptcy, and everything got put on a back burner. In any case, it's important for history.
Here's a sample: In its final disclosures (the "Final Disclosures"), SCO identified 294 items of allegedly misused material. However, only 68 of them concern allegations of infringement relating to Linux, and only 52 of those survived the Court's June 28, 2006, order limiting SCO's proof. The 52 items at issue (the "Items") identify four allegedly infringed UNIX copyrights (UNIX System V Release 3.2, UNIX System V Release 4.0, UNIX System V Release 4.2, and UNIX System V Release 4.2-ES-MP) (the "System V Works"). The Items also identify three types of allegedly infringing material: (1) header file code that is either dictated by the Single UNIX Specification (the "SUS Material") or relates to a technology known as Streams (the "Streams Material")2; (2) code relating to the ELF Specification (the "ELF Material"); and (3) less than 25 lines of memory allocation coe, which were removed from Linux before IBM filed its Tenth Counterclaim.
Most of this material is not even in the Linux kernel, which is the subject of the Tenth Counterclaim and this motion. In fact, only 12 of the Items relate to the Linux kernel. Those 12 items concern 326 lines of Linux code (the "Linux Code") that are alleged to infringe 320 lines of UNIX code (the "System V Code") from the System V Works (collectively, the "Disputed Code"). In short, despite SCO's public claims of there being more than one million lines of infringing code in Linux, the Final Disclosures identify no more than 326 lines of supposedly infringing code in the kernel. The Disputed Code represents less than five one-thousandths of a percent (.005%) of the System V Works.3
SCO's claims of infringement fail as a matter of law for at least five independent reasons, any one of which justifies the entry of summary judgment in favor of IBM.
First, SCO cannot establish unauthorized copying by IBM of copyrighted works owned by SCO. From the beginning of this case, IBM asked SCO to disclose its allegations and evidence of alleged infringement, and from the beginning of this case, SCO declined. The Court entered two separate orders requiring SCO to disclose its allegations and evidence with specificity. Even then, SCO failed to do so, requiring the Court to enter an order setting a final disclosure deadline. Even in the face of that order, SCO failed to describe in any meaningful way -- let alone in detail, as specified by the Court -- its allegations and evidence of infringement by IBM. SCO cannot establish that it owns copyrights in the System V Code. Nor can it show that IBM copied the System V Code without authorization. Nowhere, in fact, has SCO ever specified or substantiated its allegations that IBM's Linux activities infringe SCO copyrights -- not in its Final Disclosures, not in its interrogatory answers, nowhere. Having failed to substantiate its claims as ordered by the Court, SCO cannot make out its claims of infringement and IBM is entitled to summary judgment. (See Part I below.)
Second, IBM has a license to use all of the Linux Code and, as to much of it, multiple licenses. In 1999, SCO's predecessor in interest, Caldera Systems, Inc. ("Caldera Systems"), expressly granted IBM a license to the material in its Linux products as a part of a Strategic Business Agreement. Caldera also granted IBM a license to the material in its Linux products, pursuant to the GNU General Public License (the "GPL"). All of the Linux Code is included in one or more of SCO's Linux products, giving IBM a license to all of it. Moreover, even earlier in the 1990s, two of SCO's other predecessors in interest, Novell, Inc. ("Novell") and The Santa Cruz Operation, Inc. ("Santa Cruz"), granted IBM licenses to most of the UNIX code. Novell granted IBM a license to all of the SUS Material, and Novell and Santa Cruz granted IBM a license to all of the ELF Material. Thus, IBM has a complete defense to all of SCO's claims of infringement. (See Part II below.)
Third, SCO is estopped from pursuing its infringement claim. The Linux Code has been in Linux since long before the commencement of this claim. Some of it has been in Linux from its inception in 1991. SCO and its predecessors not only knew the Linux Code was in Linux, they are responsible for much of it being there. Knowing that the Linux Code was in Linux, SCO promoted Linux and urged IBM and others to embrace it, with the intent and expectation that they would do so. Not knowing that SCO would change its position and declare war on Linux after nearly a decade of promoting it, IBM built a part of its business around the operating system. Allowing SCO now to reverse course would result in severe damage to IBM and countless others. Under basic principles of equity, SCO is estopped from pursuing its claims of infringement, which it also abandoned and waived long ago. (See Part III below.)
Fourth, SCO cannot prove substantial similarity between the Linux kernel and the System V Works, which is equally fatal to any claim of copyright infringement. SCO cannot establish a claim of copyright infringement absent a showing that the Linux Code makes Linux substantially similar to protectable elements of the System V Works. None of the System V Code is protectable by copyright. Among other things, it (1) represents mere ideas, processes, systems, methods of operation, concepts, principles or discoveries; (2) can be expressed in only one or a few ways; and (3) is dictated by externalities such as hardware standards, software standards, compatibility requirements, computer manufacturer design standards or industry programming practices. Even if (contrary to fact) all of the System V Code were protectable by copyright, it could not render the Linux kernel substantially similar to the System V Works because the Disputed Code represents a trivial portion -- less than five one-thousandths of one percent (.005%) -- of the most cited of the System V Works and is qualitatively insignificant. No reasonable trier of fact could find that the Linux kernel is substantially similar to the System V Works. (See Part IV below.)
Fifth, SCO cannot enforce its alleged copyrights in the System V Works because it has misused them, further precluding its infringement claim. A copyright holder cannot enforce a copyright that has been misused. A copyright holder misuses its copyright when it exceeds the scope of rights granted by the copyright. SCO exceeded the scope of the allegedly infringed copyrights by: (1) claiming ownership over code for which SCO has no copyright, (2) effectively asserting rights to all of Linux, (3) claiming control of IBM's own copyrighted code, (4) claiming ownership over material not protectable by copyright, and (5) seeking to enforce the copyrights in the System V Works in ways in which they are unenforceable. (See Part V below.)
_____________
2 A "header file" is a computer-readable text file that describes how information is to be shared among components of a program and/or between a program and other programs. Header files are created for the purpose of communicating information in a standardized way to allow interoperability.
3 This motion is limited to the allegedly misused material specifically identified by SCO in the Final Disclosures. We do not separately address the materials struck by the Court's order of June 28, 2006. Nor do we address the materials identified by SCO for the first time in its expert reports. The Court has made clear that these items are not part of the case.
If that doesn't inspire you to help out, I can't imagine what could.
If you can help, sing out, leaving a comment so others don't duplicate your effort and then email me your finished work. If you can only do a certain number of pages, that's fine. I can stitch all the pieces together. Extra points for a clean HTML, following the style I just used, but even a messy OCR would help get the project going. This is just too big a hole in our collection not to get this done at last.
|
|
Authored by: GriffMG on Monday, July 12 2010 @ 06:37 AM EDT |
Where do I send it?
---
Keep B-) ing[ Reply to This | # ]
|
|
Authored by: Grog6 on Monday, July 12 2010 @ 06:46 AM EDT |
I'll add the first one:
Darl's other brother Darl:
http://linux.slashdot.org/story/10/07/11/2314254/Claimed-Proof-That-UNIX-Code-Wa
s-Copied-Into-Linux
---
I am not a Number, I am a Free Man. - Number 6[ Reply to This | # ]
|
- Link to details - Authored by: ka1axy on Monday, July 12 2010 @ 06:56 AM EDT
- Link to details - Authored by: Vic on Monday, July 12 2010 @ 07:24 AM EDT
- Link to details - Authored by: ka1axy on Monday, July 12 2010 @ 08:24 AM EDT
- Link to details - Authored by: Vic on Monday, July 12 2010 @ 09:15 AM EDT
- Link to details - Authored by: ka1axy on Monday, July 12 2010 @ 09:45 AM EDT
- Link to details - Authored by: Vic on Monday, July 12 2010 @ 10:06 AM EDT
- what "sealed items"? - Authored by: Anonymous on Monday, July 12 2010 @ 10:30 AM EDT
- what "sealed items"? - Authored by: Vic on Monday, July 12 2010 @ 11:14 AM EDT
- are you trolling? - Authored by: Anonymous on Monday, July 12 2010 @ 11:28 AM EDT
- I could ask you the same question... - Authored by: Vic on Monday, July 12 2010 @ 11:42 AM EDT
- are you trolling? - Authored by: PJ on Monday, July 12 2010 @ 11:43 AM EDT
- are you trolling? - Authored by: JamesK on Monday, July 12 2010 @ 11:59 AM EDT
- are you trolling? - Authored by: Anonymous on Monday, July 12 2010 @ 01:38 PM EDT
- are you trolling? - Authored by: PJ on Monday, July 12 2010 @ 01:46 PM EDT
- are you trolling? - Authored by: Vic on Monday, July 12 2010 @ 01:58 PM EDT
- Unsealing - Authored by: Anonymous on Monday, July 12 2010 @ 09:13 PM EDT
- Unsealing - Authored by: Vic on Tuesday, July 13 2010 @ 04:54 AM EDT
- Unsealing - Authored by: PJ on Tuesday, July 13 2010 @ 08:33 AM EDT
- Slashdot's version was edited more than that. - Authored by: Anonymous on Tuesday, July 13 2010 @ 10:03 AM EDT
- Investor Village Naifs - Authored by: Anonymous on Tuesday, July 13 2010 @ 10:27 AM EDT
- Devastating - Authored by: ak on Tuesday, July 13 2010 @ 12:50 PM EDT
- Unsealing - Authored by: vonbrand on Tuesday, July 13 2010 @ 05:46 PM EDT
- Unsealing - Authored by: Vic on Tuesday, July 13 2010 @ 06:04 PM EDT
- Unsealing - Authored by: PJ on Tuesday, July 13 2010 @ 07:00 PM EDT
- Fixed Clicky - Authored by: Anonymous on Tuesday, July 13 2010 @ 07:04 PM EDT
- Fixed Clicky - Authored by: Anonymous on Tuesday, July 13 2010 @ 07:06 PM EDT
- Fixed Clicky - Authored by: Vic on Tuesday, July 13 2010 @ 07:18 PM EDT
- Unsealing - Authored by: Anonymous on Wednesday, July 14 2010 @ 10:36 AM EDT
- Sanctions? - Authored by: Anonymous on Tuesday, July 13 2010 @ 06:59 PM EDT
- Even If - Authored by: Anonymous on Monday, July 12 2010 @ 02:06 PM EDT
- are you trolling? - Authored by: JamesK on Monday, July 12 2010 @ 02:33 PM EDT
- what is bizarre... - Authored by: Anonymous on Monday, July 12 2010 @ 03:13 PM EDT
- Unsealing - Authored by: Anonymous on Monday, July 12 2010 @ 01:45 PM EDT
- Unsealing - Authored by: PJ on Monday, July 12 2010 @ 01:48 PM EDT
- wow! okay. - Authored by: Anonymous on Monday, July 12 2010 @ 02:30 PM EDT
- wow! okay. - Authored by: PJ on Tuesday, July 13 2010 @ 03:45 PM EDT
- Kevin's rationale - Authored by: Anonymous on Monday, July 12 2010 @ 04:59 PM EDT
- What's in there that makes them confidential? - Authored by: Anonymous on Monday, July 12 2010 @ 05:13 PM EDT
- Link to details - Authored by: Barbie on Monday, July 12 2010 @ 11:30 AM EDT
- Link to details - Authored by: PJ on Monday, July 12 2010 @ 11:32 AM EDT
- It was only "hidden" until 2005 - Authored by: Anonymous on Monday, July 12 2010 @ 10:00 AM EDT
- A tip-of-the-hat to kevin - Authored by: tcraft on Monday, July 12 2010 @ 09:28 AM EDT
- Why now? - Authored by: Anonymous on Monday, July 12 2010 @ 11:51 AM EDT
- Did Kevin compare SysV to the GPL'ed Open Linux? n/t - Authored by: Anonymous on Tuesday, July 13 2010 @ 10:33 AM EDT
- ISO ... lessons learned - Authored by: Anonymous on Monday, July 12 2010 @ 08:14 AM EDT
- tempest in a teapot ... - Authored by: nsomos on Monday, July 12 2010 @ 12:26 PM EDT
- MS patents paging? - Authored by: Anonymous on Monday, July 12 2010 @ 01:11 PM EDT
- Off Topic is Really Off Topic Here - Authored by: artp on Monday, July 12 2010 @ 03:23 PM EDT
- European Space Agency taking a close look at asteroid Lutetia - Authored by: JamesK on Monday, July 12 2010 @ 03:51 PM EDT
- Sun and MS licenses question. - Authored by: Sunny Penguin on Monday, July 12 2010 @ 04:27 PM EDT
- What if Novell released the Unix source to Kevin? - Authored by: SpaceLifeForm on Monday, July 12 2010 @ 08:35 PM EDT
- Way OT - but a fun read... surreal in a SCO v. World kinda way - Authored by: Anonymous on Monday, July 12 2010 @ 11:19 PM EDT
- "Bizarre suit freezes Facebook assets" - Authored by: say_what on Tuesday, July 13 2010 @ 11:57 AM EDT
- striking down fcc indecency - Authored by: designerfx on Tuesday, July 13 2010 @ 04:30 PM EDT
- Canada - Court Whacks Plan to Boost Canadian Content on Web - Authored by: Anonymous on Tuesday, July 13 2010 @ 04:32 PM EDT
- Grumbles under my breath - Authored by: Anonymous on Tuesday, July 13 2010 @ 05:16 PM EDT
|
Authored by: Aladdin Sane on Monday, July 12 2010 @ 06:47 AM EDT |
Use this thread for any corrections to the
article.
Thanks.
--- There is nothing unknowable—only that
which is yet to be known. —The Fourth Doctor (Tom Baker) [ Reply to This | # ]
|
|
Authored by: Aladdin Sane on Monday, July 12 2010 @ 06:49 AM EDT |
Comment on News Picks here. Please let us know which News Pick you comment is
about.
Thanks.
--- There is nothing unknowable—only that
which is yet to be known. —The Fourth Doctor (Tom Baker) [ Reply to This | # ]
|
- App Inventor for Android - Authored by: tiger99 on Monday, July 12 2010 @ 08:08 AM EDT
- Thomas Jefferson on patents -- via Software Patents Need to be Abolished - Authored by: Anonymous on Monday, July 12 2010 @ 02:21 PM EDT
- The Creativity Crisis - Authored by: TemporalBeing on Monday, July 12 2010 @ 06:09 PM EDT
- Dump Microsoft, Use Linux to Save Money, U.K. Officials Suggest - Authored by: Anonymous on Tuesday, July 13 2010 @ 04:28 AM EDT
- Dump Microsoft, Use Linux to Save Money, U.K. Officials Suggest - Authored by: tiger99 on Tuesday, July 13 2010 @ 08:15 AM EDT
- Dump Microsoft, Use Linux to Save Money - Authored by: Gringo on Tuesday, July 13 2010 @ 08:17 AM EDT
- Dump Microsoft, Use Linux to Save Money, U.K. Officials Suggest - Authored by: AndyC on Tuesday, July 13 2010 @ 08:25 AM EDT
- Dump Microsoft, Use Linux to Save Money, U.K. Officials Suggest - Authored by: RichardB on Tuesday, July 13 2010 @ 01:57 PM EDT
- SCOx... Stock prices up 2x - Authored by: Anonymous on Tuesday, July 13 2010 @ 09:11 AM EDT
- Lessons learned from a hasty standard - Authored by: Anonymous on Tuesday, July 13 2010 @ 04:55 PM EDT
|
Authored by: Aladdin Sane on Monday, July 12 2010 @ 06:51 AM EDT |
can go here.
--- There is nothing unknowable—only that which is
yet to be known. —The Fourth Doctor (Tom Baker) [ Reply to This | # ]
|
|
Authored by: mexaly on Monday, July 12 2010 @ 09:10 AM EDT |
As long as SCO stays out of ch.7, aren't they liable to both Novell and IBM for
counterclaims?
BTW, what of the counterclaims in SCO v Novell? Did they all get rolled up with
the royalties and costs?
---
IANAL, but I watch actors play lawyers on high-definition television.
My thanks go out to PJ and the legal experts that make Groklaw great.[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 12 2010 @ 01:33 PM EDT |
That's not an ouch that is a quintuple ouch!
Tufty
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 12 2010 @ 03:04 PM EDT |
I presume since Trustee/Judge Cahn decided to move ahead with the litigation he
expects to win money from IBM. SCO must have a valid answer to all these
points.
If SCO does not have a valid answer to all these points then Cahn owes the SCO
estate and creditors all the money that has been spent since he took office. I
look forward to Cahn defending his decisions.
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 12 2010 @ 06:55 PM EDT |
Hi folks,
I too tried OCRing the two documents, but found that the raw output contained
many errors. Thus, rather than sending the files to PJ, I started going through
and editing them. Did your OCRs turn out well? If so, I might as well abandon my
editing effort because it would seem it's a needless duplication.
NB
[ Reply to This | # ]
|
|
Authored by: Anonymous on Monday, July 12 2010 @ 11:14 PM EDT |
in SCO Unix minus the original copyright notices !
Would be very amusing & interesting if evidence could be found to prove they
did the stealing & before the filed suit against IBM.
I am though assuming this has been discussed before (just don't remember it)
:)
DSM[ Reply to This | # ]
|
|
|
|
|