IBM Motion to Limit SCO Claims Granted

Kalak writes "IBM's motion to limit SCO's claims to those that have specific version, file and line numbers has been granted, in part. At the end of last year, SCO made 294 allegations. IBM asked for dismissal of 198 of them due to lack of this information, 1 SCO withdrew, 1 IBM withdrew from the request, and 185 of them have been dismissed from the case. This leaves 107 of the charges are left to be addressed by means other than lack of specificity (such as public domain, BSD code, who owns it, etc.) As usual, Groklaw, has discussion, as well as the Order and an excellent chart of the history of alleged violations has been created as well."

A very thorough piece of work.

[Anonymous Coward]

Judge Wells supports her decisions in a manner that effectively prevents them from being appealed.

She uses Sandeep Gupta's (he testified for SCO) testimony to support the requirement for specificity.

She uses the fact that SCO didn't complain when it was ordered to produce specific lines of code. She also notes that SCO never asked for clarification on that point.

She is firing SCO's own testimony and actions (or lack thereof) right back in their faces.

Some posters on Groklaw and the Yahoo SCOX message board have speculated that this decision means that a couple of the counterclaims are a slam dunk. In particular, it now appears that Linux is completely clear of copyright violations wrt anything that SCO owns or says it does.

Re:Geocities?

[Anonymous Coward]

coral cache [nyud.net]

Oops, here's the text

[MikePlacid]

In December 2003, near the beginning of this case, the court ordered SCO to,
"identify and state with specificity the source code(s) that SCO is claiming
form the basis of their action against IBM." Even if SCO lacked the code behind
methods and concepts at this early stage, SCO could have and should have, at
least articulated which methods and concetps formed "the basis of their action
against IBM." At a minimum, SCO should have identified the code behind their
methods and conceptws in the final submission pursuant to this original order
entered in December 2003 ane Judge Kimball's order entered in July 2005.

Re:IBM- doing the right thing?

[tomhudson]

Don't read much into them defending themselves, if it was a few million dollars, it would be done. It was a few billion, they might be able to afford it but you're not going to get a billion dollars from them without a fight. No - even if it was a "few million" it wouldn't have ever been done, because IBM knows that once someone does it to them, others will try the same tactic.

To put it into its proper perspective - they wouldn't have done the deal even for a few thousand.

Also, in the beginning SCO was making noises in the background of "about $25 million" and IBM basically tod them to FOAD.

Key extracts from the Judge's order

[Animats]

It's worth reading the entire order from Judge Wells. However, for the benefit of those who don't enjoy reading legal documents, here's are the highlights. These are the Judge's words:

• As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public. At a trade show in 2003 SCO shared with the public a presentation outlining SCO's claims against IBM. SCO identified four categories of alleged misappropriation: ... Finally, in the presentation SCO also gave "one example of many" of line by line copying between the System V Code and Linux kernel code.14
• SCO ... was ordered .... to provide and identify with specificity all lines of code in Linux that it claims rights to.
• In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball's order entered in July 2005.
• SCO was ordered on multiple occasions to answer IBM's interrogatories which in this court's view covered methods and concepts and a request for the code behind them. Thus, SCO's failure to provide code for the methods and concepts it claims were misappropriated is also a violation of Rule 26(e) in addition to a violation of this court's orders.
• Based on the foregoing, the court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO. The court further finds that such failure was intentional and therefore willful based on SCO's disregard of the court's orders and failure to seek clarification. In the 118 view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put "all evidence . . . on the table." Accordingly, the court finds that SCO willfully failed to comply with the court's orders.
• Based on the foregoing, the court GRANTS in PART IBM's Motion to Limit SCO's Claims.

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court. There are a few minor claims remaining, but they're minor and mostly related to old contractual issues that can only involve IBM, not third parties using Linux.

This is all still pretrial manuvering, during which the case becomes better defined. In the next phase, we have "dispositive motions", which will probably include a motion by IBM for summary judgement against SCO. Some more SCO claims will probably be thrown out at that phase.

Re:Granted IN PART

[Monokeros]

21 actually

SCO made 294 claims.
IBM objected to 198 of the claims.
Judge Wells allowed 17 of IBM's 198 disputed claims and barred the rest.

That leaves 117 of SCO's 294 claims standing. ~66% gone.

1 really damn good read. Judge Wells's order was fantastically fun.

IBMs counterclaims will deal with that

[Anonymous Coward]

IBM has filed counterclaims against SCO - which will ensure that there are definate rulings to show that LINUX is safe.
SCO can dodge their own claims..but they cant dodge IBM's Counter claims

Truth nuggets

[jonathan_95060]

Here is my favorite nugget from the order:

Finally, after IBM received SCO's interim alleged
misappropriated submissions, IBM informed SCO that the
submissions were not specific enough. IBM warned SCO that if the
final submissions were of the same level of specificity court
intervention would be sought. Tellingly, SCO did not seek court
guidance as to the required level of specificity after IBM
disagreed with SCO's interpretation of the court's orders.

Of course they didn't because their whole game is to stall stall stall.

Re:Key extracts from the Judge's order

[swillden]

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court.

No, I don't think this is correct. SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints. Everything that has been left is related to their contract claims against IBM. SCO is saying that IBM should not have put stuff into Linux that it got from Unix because IBM's contract with AT&T (of whom SCO claims to be successor in interest) required IBM to keep it confidential, not because there's any actual copyright infringement.

What has happened here is that the court has thrown out many of SCO's allegations of contract violation because SCO couldn't define the allegations. Many more will undoubtedly get thrown out in summary judgements when the court determines that SCO's allegations are over Unix information (methods and concepts) that are and have been public for a long time. Then, finally, assuming SCO doesn't evaporate before then, SCO's basic theory about what the IBM/AT&T contract says will be ajudicated, at which point the rest of the complaints will be tossed, because the contract doesn't say that IBM's own code that happened to rub up against AT&T's code falls under the terms of the contract, and because AT&T explicitly clarified this point to IBM and the other licensees.

And, at some point in there, the court will get to rule on some of IBM's allegations about SCO's misconduct -- Lanham Act violations (essentially false advertising), tortious interference with business and, sweetest of all, straight up copyright infringement from SCO's distribution of IBM's code in Linux. The only permission SCO had to distribute IBM's code was the GPL, and SCO stopped providing source code after they started this lawsuit, violating the terms of the GPL and thereby rescinding the GPL-provided permission.

Not exactly.

[Jaywalk]

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court. ... SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints.

It would be more accurate to say that SCO tried to withdraw all their allegations of copyright infringement. SCO has been flip-flopping on the issue; talking copyright when it suited them, but then saying that it was purely a contract case when they were pressed. But the judge ruled that the case clearly hinged on copyrights no matter how SCO tried to spin things. SCO still tries to avoid the copyright issue, but if the judge wants to hear about copyrights, there's not much they can do.

At a minimum, IBM's sixth counterclaim is for breach of the GPL, which is based on copyright law.

Re:This is great

[rm69990]

It WON'T be dismissed with prejudice. The case will continue. IBM will most likely win the case by summary judgement (much better than the case just being dismissed, as it will cost SCO big time). IBM will most likely win their counterclaims, putting SCO into bankruptcy. That is, unless Novell cleans out SCO on their own claims first, as Novell is gunning for SCO as well, both through arbitration between SUSE and SCO, and Novell's counterclaims where they accuse SCO of embezzling their money and ask that the full sum of money be awarded to Novell that SCO collected from Microsoft, Sun and Linux users.

SUSE assigned a value over $50 million dollars to the arbitration alone. Novell is countersuing SCO for over $25 million when you include their failure to remit royalties and slander of title counterclaims. SCO currently has $28 million in assets, far short of what their legal adversaries are claiming against them for, when you add in Red Hat's claims and IBM's counterclaims. http://finance.google.com/finance?fstype=bi&cid=66 4357 [google.com]

SCO is toast, plain and simple. The time for the case to merely be dismissed has come and gone, which is a GOOD THING, not a bad thing, since SCO will now have to face the consequences for their actions.

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[account_deleted]

Comment removed based on user account deletion

Re:IBM saw it for what it is.

[GigsVT]

Barratry can be a crime. Vexatious litigation can get you disbarred. Frivolous litigation (in the legal sense, not the tort reformer sense) can carry penalties too.

Re:IBM saw it for what it is.

[trewornan]

The lawyers must have known that SCO had no evidence to support their accusations and therefore could not win. Persuing an action knowing that it was a hopeless case with no justification is unethical even for lawyers (yes they do have rules they are supposed to follow). Lawyers who break these rules in order to abuse the legal system the way these ones have deserve to be held accountable - that their clients paid them to do it is no excuse at all.