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."

IBM- doing the right thing?

[beheaderaswp]

I hope that people appreciate the fact that IBM didn't just lay down on this suit and settle by dumping some money. They could have, and they can afford to do so. But rather, they are playing this out in a manner where there will be a ruling- a ruling where I predict Linux code will be vindicated.

I'll be an IBM customer for a long time due to this. And Whether IBM means it as some grand "do good gesture" or not is meaningless.

The resolution of this will mean that the US will not fall behind in Linux Development. Which they could- assuming the legality of Linux changed here- but not elsewhere.

Go IBM!

this emascualtes SCO's case

[close_wait]

In case anyone isn't clear as to the significance of this, SCO have two main types of complaint: straightforward copyright violations ("ooh your honour, their errno.h looks just like ours"), and the more nebulous "methods and concepts". The judge has now thrown out most of the latter, which were always going to be the more complex to defend against. The literal copying is easy: "it's from the POSIX standard", "it's from the old System III code that Caldera put in the public domain" etc.

SCO are finished.

IBM saw it for what it is.

[Lead Butthead]

IBM saw the entire affair for what it is -- extortion. They also knows that if they cave into one, they'll be defending themselves till cow comes home.

*snif* so beautiful...

[Anonymous Coward]

Finally, some good news.

Looking at this ruling, and the other exceptionally clear rulings which have been handed down in this case so far, I really am glad that the SCO case was assigned to judges who really understand what it is they are doing. This has been an exceptionally slow case, but at least when progress in the case finally does occur, the progress is meaningful.

Over under

[Mateo_LeFou]

on McBride et. al's salaries when they move on to other companies, to continue trying to game the jacked-up "intellectual property" system. Anyone? I'm not a bookie but I'll put $800K out there. What severe repercussions!

Re:this emascualtes SCO's case

[killjoe]

I am pretty sure they took copyright violation out a while back. All they have now are methods and concepts crap. They know they have nothing though. They are just a chess piece in the hands of MS. MS is funding this thing just to keep up the FUD and hassle IBM, they will keep doing it until the case is over and then find another stooge to do it again. It only cost them about 12 million so they definately got their money's worth from this one. They suckered a bank into dumping a bunch of money (who took it in the shorts) and that bank is probably wanting some sort of re-imbursement but still just chump change for MS.

Re: Losing on a technicality

[Anonymous Coward]

But the technicality was, "you never made anything but a vacuous charge." The rtuling was a "Where's the beef" ruling.

Re:IBM- doing the right thing?

[Pharmboy]

I love to see a company work so hard for an ethical goal as opposed to a profit goal..

wtf. IBM couldn't afford to work so hard on what you call an "ethical goal" if they didn't spend most of their time working hard to actually make money.

I am all for the best of ethics and conducting business in a fair and open way, but there is nothing even remotely wrong with making a profit. It is how jobs are created, stock dividends are paid to your 401k, and why they can invest in new technologies.

Your statement clearly indicates that you think a company working hard to make money is just "wrong". You seriously need to rethink this. Working hard to make money is a GOOD thing, not a bad thing.

Not quite.

[Frosty Piss]

Of course IBM saw it as extertion. But IBM can afford to pay, just to not have to deal with it. IBM realizes, however, that Linux is going to play a big part in it's future, and while a one-time extortion fee could be rationalized, allowing SCO to bleed them forever could not be allowed to be a part of IBM's business plan.

No way, man

[Anonymous Coward]

If you read the ruling its clear that this is no "technicality". This was a massive failure by SCO to produce any of the evidence they alleged they had. The court ordered them no less than 3 times to provide the required specificity. They just went 'la la la' and tried to get away with not providing it.

Knowing full well that this would eventually happen, don't you think that if SCO had ANY evidence worth even a wet fart, they'd have produced it during discovery? They have nothing, and everyone knows it.

Re:Not quite.

[Ohreally_factor]

Apparently, you aren't familiar with IBM's legal reputation. Their legal department has been nicknamed the Nazgul [wikipedia.org] . 'Nuff said.

Re:No way, man

[ZachPruckowski]

I know that SCO had no evidence. I know that the remaining claims are totally gonna flop.

But Linux's great disadvantage is that it has no single voice speaking for it. So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.

This is great

[HangingChad]

To a non-legal mind, this could be portrayed as "losing on a technicality".

Not by a long shot. It's a bit more than a technicality when a federal judge writes in a decision that you:

- Ignored court orders for specificity

- Implied you tried to game the system and bs the judges

- The judge takes time to point out how you lied to your stockholders in the press

- The court stops speaking legalesse and says something like, "The court finds SCO's arguments unpersuasive."

- The court says you didn't meet the standard of proof you requested of the defense (the burden of proof is on you)

- And that your failures were willful

That's a long way from a technicality. That's SCO getting gut shot and left to wander around in extreme pain while they bleed out and die.

Re:There's SCO business...

[dbIII]

There's two possible reasons behind this particular lawsuit. One is because the SCO execs want to go after IBM for extortion. The other reason is because Microsoft is trying to go after Linux.

You forgot a third option. Darl's brother is on the legal team and vast amounts of SCO cash are bleeding directly into his pocket. Perhaps SCO was set up to lose from the day Darl started running the place. When SCO goes down, what does Darl lose? He'll just go on to the next position with the reputation of being the underdog going after IBM - and he would have won too if it wasn't for those darn commie kids and their penguin. There are plenty of places that would take him on the strength of that without looking into management ability or possible criminal behavior. I suspect we'll be hearing more about this person until he does a mini-enron at a larger company and ends up imprisoned for it.

Re:IBM saw it for what it is.

[grasshoppa]

Actually, in clear cut cases like this, where the plaintif is slimy, the judge will force everyone to cross the t's and dot the i's, creating the length of trial we see here. Further, there is a shit load of crap to go over ( purposely, I'm sure ). So this case will take a while, but it won't keep getting appealed because this judge is doing a complete job.

Re:IBM saw it for what it is.

[swillden]

If the judge truly thought the plaintif was slimy, then the case would have been dismissed right away.

And the appellate court would throw it right back, and possibly reprimand the judge for circumventing due process. Even obnoxious plaintiffs have the right to have their case heard if it contains any merit at all, and in a complex case like this one it's rather difficult to say with certainty that there is no merit to be found. The only way to make that determination is to go through discovery, and that's what the judge has to do, even if the odds of finding something worth suing over are slim.

Judges are not dumb

Exactly. They're not dumb, and they don't like to be reversed, or reprimanded, by courts of appeals whose focus is the evaluation of the lower court's procedures, not the merits of the case.

Re:This isn't all that great...

[ZachPruckowski]

I don't think Linux "dodged a bullet" at all. but there are three groups of people with three levels of knowledge on the subject (I'm fast-forwarding 2 years here):
1) you, me, and everyone here know that SCO was totally baseless, IBM couldn't lose this case.
2) there are people who know what SCO, IBM, and Linux are, and that Linux and IBM won against SCO. They are the semi-literate tech bosses.
3) There are the PHBs of the world (and the sheeple), who don't know the Internet from IE, and don't know Windows from Word. They haven't heard of Linux or SCO.

MS rep comes around, does his "buy more licenses/longer contract" spiel. If the company has any interest in going to Linux, he'll work to dissuade them, via TCO, transition costs, and FUD.

Group 1 will respond with "SCO was total BS, and you know it".

Group 2 will be like "But IBM/RedHat/Novell won", and MS says "They got off b/c of a judge's ruling dismissing half the case"

Group 3 will only hear "IP issues, licensing dispute, still in appeal, very messy" and re-sign with MS.

The truth isn't as important as perception, unfortunately.

Re:this emascualtes SCO's case

[jmorris42]

> It only cost them about 12 million so they definately got their money's worth from this one. They suckered
> a bank into dumping a bunch of money (who took it in the shorts) and that bank is probably wanting some sort
> of re-imbursement but still just chump change for MS.

You clearly aren't cynical enough. Those banks didn't lose a dime. They were laundering MSFT's money to SCOX pure and simple. Somewhere (probably in Balmer's office on well encrypted media) is a set of books showing how other payments (remember both Baystar and RBC had and still have extensive dealings with MSFT) were inflated to cover the transfer^Winvestment to SCOX.

SCO was Microsoft's sock puppet from day one. SCO was dead and they knew it so it wasn't like they had much choice, so they took on Darl and went on a suicide mission to buy Microsoft some time to come up with some strategy that might actually be able to stop FOSS other than launching the Patent Wars.

Nobody wants the Patent Wars, it is a doomsday device, once it goes off nobody can say with any certainty who survives or what the postwar world looks like. But they are increasingly being pushed against the wall and will eventually be forced to push the button. Yes they are still mighty, have annual sales in the billions and a virtual monopoly. But their stock has been flat since the .bomb crash and pressure is mounting for them to "do something." Be afraid, very afraid that the SCO trial is about over.

Re:No way, man

[Anonymous Coward]

But Linux's great disadvantage is that it has no single voice speaking for it. So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.


But in this particular case IBM will speak up as they are the injured party and if the "talking head" goes too far slander and libel cases will appear.

It may be a mountain of code but they can quote The SCO Groups claims of having "a mountain of evidence" and not needing discovery because they were ready to go directly to trial. Then of course the SCO Group demanded ever higher mountains of code to search through for the evidence they claimed to already have but which even given 3 years they haven't yet presented it to the judge.

'Those are the nazgul. Once they were human, now they are IBM's lawyers.'

Re:No way, man

[Khaed]

IBM is speaking for Linux, in this case.

Re:IBM saw it for what it is.

[alshithead]

If you think judges are always completely impartial and act that way then you need to expose yourself to more law. There's a reason judges occasionally go to jail or get thrown off the bench. They're human and therefore subject to all of our failings. In some places the law means nothing more than who you know and if you are in the judge's circle of lawyer friends. If you are, you will get decisions others who aren't in the circle wouldn't. My stepson's case is a perfect example. Without the right connections I'm sure his VERY expensive lawyer would not have succeeded in getting him another chance. He would be a naive, immature, 19 year old, 150 pound boy getting his ass pounded in state prison when what he really needed was serious psychiatric care. The prosecutor knew all of the facts but she didn't care what was right...all she wanted is to be relected. You'll never find a "Fair Witness" type judge like in a Heinlein novel.

I doubt it

[Weaselmancer]

So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.

I doubt anyone will be saying that. Reason being - you file a lawsuit against someone after you discover that they have injured you in some way. Nobody files a suit and then looks for their injury. Except SCO, for some bizarre reason.

What's left.

[Jaywalk]

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.

IBM's motion was pretty simple. The court ordered SCO to produce source code and SCO didn't do that. What's left is the stuff where source code was provided or wasn't necessary and it's pretty weak stuff.

Three of the claims IBM objected to were "negative know how". SCO argued that these were cases where IBM figured out how to contribute something to Linux because they saw how UNIX got it wrong. In other words, that IBM infringed SCO's intellectual property by not using SCO's source code. Wells expressed doubt about the argument -- calling it a "tenuous position" -- but accepted that there was good reason for not providing the source code.

The rest of the claims she allowed really weren't about coding at all. They were claims that IBM employees who worked on Dynix were contractually prohibited from working on Linux. Again, she wasn't ruling on the merits but agreed that this was a case where source code wouldn't be expected.

Finally, there are the items IBM didn't object to; the ones where SCO actually provided source code references. IBM has already said that it's planning to deal with these with a request for summary judgement.

Also on the chopping block, there's another motion on the table by IBM to scrap most of SCO's expert witnesses. It seems SCO was trying to use those witnesses to add a bunch more code to their "final" list of allegedly infringing material. It remains to be seen how much of that survives.

In a nutshell, it doesn't look like enough of SCO's case will survive long enough to make it to trial.

Re:IBM- doing the right thing?

[honkycat]

I don't think his statement means what you interpreted it to mean. When a company works for an ethical goal -- one that is primarily motivated by doing the right thing rather than making money -- it is surprising. There is no surprise when a company works for a profit goal, since that is what companies are expected to do. This doesn't mean that profit goals are unethical, just that it's not particularly interesting when a company goes after a profitable target that happens to be ethical.

It does seem that perhaps it would have been cheaper for IBM to have settled long ago rather than fighting this for so long. You can make a reasonable case they're standing up for Linux because they don't want to see SCO make off with ill-gotten profits. I'm not totally sold on that interpretation -- it's also quite possible that they've done an analysis and found that settling the lawsuit would be more expensive than many slashdotters seem to estimate so they're just making a rational fiscal decision.

Personally, I hope that it's the former, because I agree with the original poster. It warms my heart to think of a large company motivated by something other than the bottom line. It doesn't happen often, but it is possible.

And the Red Hat case also... n/t

[Anonymous Coward]

Red Hat wants a declaration of non-infringement

Where are the pro SCO journalists?

[jonathan_95060]

You know, the ones that like to say "PJ over at groklaw is an SCO hater that only presents one side of the story. SCO is going to win". LOL. How often have these bozos been wrong about this case? How often has PJ been wrong? Aside from Groklaw I don't see any reporting on this ;^)

Re:Key extracts from the Judge's order

[rm69990]

IBM's 10th counterclaim asks the court to rule that Linux doesn't infringe on SCO's copyrights, so even if SCO isn't claiming against IBM for Copyright infringement, it is still very much a part of the case, and SCO was required to attempt to prove their Linux claims in their December production.

Re:Red Hat and Novell Cases?

[rm69990]

There are still over 100 claims from SCO that have to be dealt with before Red Hat can proceed. We don't know whether they involve copyrights or not. Remember, IBM DID NOT try to limit all of SCO's claims, because some were specified correctly. IBM has made it clear that they will deal with those claims by Summary Judgement, which hasn't happened yet. SCO, at this point in time, still has over 100 claims in play (I'm not saying anything about the validity of those claims, just saying that they are still going to trial).

No part of the Novell case relies on this, plain and simple. The Novell case is (maybe) being stayed based on arbitration ongoing between SUSE and SCO, and the arbitration is ongoing irregardless of what happens between SCO and IBM. The rest of the SCO v. Novell is based on a contract dispute regarding the terms of the APA, which has absolutely nothing to do with this.

Re:Key extracts from the Judge's order

[majorflaw]

The key words here are: "SCO ... was ordered .... to provide and identify with specificity all lines of code in Linux that it claims rights to", "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.", "such failure was intentional and therefore willful" and "the court finds that SCO willfully failed to comply with the court's orders". That's the way Judges talk when they are planning on imposing sanctions on a litigant. Get ready Darl, this is gonna hurt.

Re:Not quite.

[bigtangringo]

Right up until the judge grants IBM "reasonable legal fees"

Re:This isn't all that great...

[Xtifr]

It doesn't matter if it's "on a technicality" or not! Once this case is lost, SCO will be barred from bringing the same claims again. So there's no risk. Plus, there's IBM's counterclaims. If IBM wins some of those (particularly, the sixth, for violation of the GPL), there's going to be no wriggle-room left. Look, this is IBM we're talking about! They've invested billions into Linux. There is no way they're going to leave the doors open for on-going FUD! They invented FUD! They know everything there is to know about the FUD game.

There's also the Lantham Act counterclaims, where IBM is basically saying that SCO slandered their business. They're only going to be able to win that if SCO slandered their business, and that (again) won't leave much room for FUD afterwards.

On top of that, there's the Novell lawsuit. You know--Novell, the guys who actually own Unix! Once IBM and Novell get done, there's going to be absolutely no basis left for spreading FUD. Except random stupid FUD that some people would try to spread no matter what happens, even if there were nothing that could be called a "technicality". The "well sure, they lost completely and totally, and had no evidence whatsoever, but maybe there was still something to it" FUD. And there's little that can be done about that FUD except to point out that it's pure FUD, and that the people spreading it have ulterior motives.

And no, bankruptcy alone will not make the lawsuits vanish. The bankruptcy trustees will have a duty to maximize the value of SCO's assets to pay off creditors. A lawsuit with a potential five billion dollar payoff is not something they're going to be able to drop unless they can show pretty convincingly that there's no way to win. So, if the lawsuits do disappear when SCO goes bankrupt (and I suspect they might), that's going to be just one more anti-FUD argument. If the case had any merit, the lawsuits wouldn't (have) disappear(ed).

Re:Interesting possibility

[Ollierose]

I don't think (IANAL, mind) that it works that way - what'll probably happen is that SCO gets sent into the US version of administration (Chapter 11 or 7?), where the administrators of the company sell as much of the assets to the highest bidder to raise the funds required to pay IBMs damages.

Given that it'll probably be higher damages than SCO can possibly pay, the result would be liquidation of the entire company.

Granted, it would be nice that IBM ends up with the copyrights and such for old UNIX given their current position of niceness towards the FOSS community, but I think it would be unlikely that it would happen that way. The assets are likely to be sold by auction, and there are other entities that would love to get out of their own UNIX contracts as well as IBM.

Re:Interesting possibility

[flafish]

"Granted, it would be nice that IBM ends up with the copyrights and such for old UNIX given their current position of niceness towards the FOSS community, but I think it would be unlikely that it would happen that way."

SCOG would have to own them first. :-) They can't even prove what they were sold by SCO or that SCO ever got them from Novell in the first place. Which leaves the SGOG vs Novell case somewhat hanging if IBM puts them out of business too soon. They (SCOG) are playing the same type game there and the judges already know what they are doing. Judge Kimball is trying both cases. :-)

Either way, SCOG becomes a caldera in the end. It just depend on who gets to drop the MOAB now.