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IBM's Counterclaim 10 Outlines 5 Ways SCO's Wrong 121

Posted by timothy
from the darlure-to-launch dept.
ColonelZen writes "My article at IPW reads: But, however slowly, the wheels of justice do grind on. The discovery phase of SCO v. IBM is now complete, and as per the court's schedule the time to raise Summary Judgment issues is now. And IBM has indeed raised them ... such that it is very possible that all of SCO's claims against IBM could wind up dismissed piecemeal in those motions. ... Yesterday, IBM's redacted memo in support of CC10 hit Pacer. ... This is 102 pages detailing five independent but overlapping, direct and powerfully detailed reasons why SCO's claims of Linux infringement against its code are nonsense."
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IBM's Counterclaim 10 Outlines 5 Ways SCO's Wrong

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  • the US system (Score:5, Insightful)

    by iggymanz (596061) on Sunday October 15, 2006 @01:09PM (#16444397)
    Very sad that european courts can deal with utterly absurd claims so very quickly in corporate cases (and have done so for SCO's), while the SCOX vs. IBM and SCOX vs. Novell still drag on even though by the judge's comments it's clear they know the thing is a farce.
    • Re:the US system (Score:5, Interesting)

      by Urgru (139637) on Sunday October 15, 2006 @01:40PM (#16444583) Homepage
      U.S. and European cases are apples and oranges. The American and British legal systems grew out of English common law and are heavily constrained by precedent, a principle known as stare decisis [wikipedia.org] . Civil law systems - most are derived from or similar to the Napoleonic Code [wikipedia.org] - recognize some precedential "super cases" but generally allow a judicial official to rule without regard to past decisions. This makes is possible to dispose of some matters more quickly, but you'll also see some things litigated over and over again that aren't repeated or end very quickly on a motion to dismiss (pursuant to a prior, precedential ruling) in the U.S. common law system.

      Judges sometimes allow things to "drag on" in order to build a solid record for summary judgement (reducing the complexity and likelyhood of appeals) or establish a strong precedent for other courts in their district/circuit faced with similar issues in the future. A single thoughtful ruling in the U.S. can stand for decades and become a cornerstone of law. By way of example, a 1970 district court ruling (Georgia-Pacific Corp. v. U.S. Plywood Corp.) serves as the basis for royalty determinations in pretty much every patent case in America. The SCO/IBM litigation may be long, but could ultimatley produce a seminal opinion that influences contract and copyright cases for years to come, which couldn't happen in Europe.
      • Re:the US system (Score:5, Insightful)

        by belmolis (702863) <billposer@alumER ... u minus math_god> on Sunday October 15, 2006 @01:59PM (#16444709) Homepage

        Your general point is well taken, but I doubt that the SCO case will establish a precedant of much interest since as far as I can see there are no interesting legal issues at stake, just an essentially fraudulent complaint.

        • by T-Ranger (10520)
          Legal precedent perhaps not. But if (when) SCOX is liquidated and the execs are brought up on securities fraud charges it will stand out as deterrent against other potential swindlers. And make potential investors (the big investors, like the Royal Bank of Canada, not Joe-sixpack with an etrade account) think twice about throwing money at a company whose future is based on questionable legal clames only.
        • by KZigurs (638781)
          Just wait for the cleanup phase - darl in jail, etc.

          This will be bigger than sarbes&oxley
          • While "Darl in Jail" (TM:) sounds logical to many (at least many /.-ers) I suspect it wont happen: he either die early (from enjoying his fortune fast while he still got it), relocate somewhere else or ... there is nothing to put him in jail.

            SCO may go to bankrupcy but I think he's that kind of person with some golden parachute alredy deployed. And IMO, justice works differently for rich people. (try imagine some Little Self Employed Joe Average Without Huge Cash Reserves doing such stunt as SCO with just

        • Re: (Score:3, Insightful)

          by hey! (33014)
          but I doubt that the SCO case will establish a precedant

          Nor should it. In a common law system, setting a precedant where citing a previous one would do is usually a bad thing.

          In fact it's such a bad thing, it's usually preferable to keep paying out rope for one or other of the parties to hang themselves with, which I think is the point of the GP post.

          The basic operating principle of the US system is this: the courts interpret, and the legislature corrects that interpretation. It's a pretty good system, o
          • Nor should it. In a common law system, setting a precedant where citing a previous one would do is usually a bad thing.
            Primary exception: Brown v. Board of Education. That's the only one I can think of.
      • Re: (Score:3, Informative)

        by CowboyBob500 (580695)
        The American and British legal systems grew out of English common law

        That might very well be the case, but I think it's pretty certain that this case would have been over in the UK by now as well. Plus, the loser would have to pay all court costs, which is why we don't get so many ridiculous cases in the first place.

        Bob
        • by gbulmash (688770) * <semi_famous.yahoo@com> on Sunday October 15, 2006 @03:11PM (#16445121) Homepage Journal
          I think the main problem with the U.S. system is the judge can't impose sanctions like making the plaintiff's counsel get a Cleveland Steamer [urbandictionary.com] from Courtney Love.

          If you risked that evert time you filed a frivolous lawsuit, you'd think twice, wouldn't you?

          - Greg
          • Re:the US system (Score:4, Insightful)

            by killjoe (766577) on Sunday October 15, 2006 @04:11PM (#16445545)
            To me the main problem is that the judge can't ask questions. In a better "justice system" I would see a conversation like this.

            SCO: They stole our code.
            IBM: Did not!.
            Judge: SCO, what code did they steal?
            SCO: Huh? Wha? We don't know. Did we say they stole code? No, they did not steal code, we meant they broke a contract.
            Judge: Which contract did they break?
            SCO: Well we don't really know and the contract wasn't signed with us.

            Judge: Case dismissed.
            • Re: (Score:3, Informative)

              by Knetzar (698216)
              Yeah, but IBM could have asked those same questions, and the judge could force SCO to respond to them.
            • Re: (Score:3, Informative)

              by Dogers (446369)
              But how would the lawyers make their millions in that trial? :)
            • Re: (Score:2, Insightful)

              by Anonymous Coward
              But the questions have been asked, it's been IBM that's asked them. So, the way it has proceeded is something like this:

              SCO: They stole our code.
              IBM: We doubt it, tell us what we stole.
              SCO: They stole our code. Lots and lots of it.
              IBM: Judge, make them tell us what we stole.
              Judge: SCO, tell them what they stole.
              SCO: Huh? Wha? We don't know. Did we say they stole code? No, they did not steal code, we meant they broke a contract. Of course, you didn't really want us to tell IBM exactly what code is affected
          • A real judge would at least impose a hot carl [urbandictionary.com]

            Or is than "an hot carl". I can never remember what is in fashion now.

        • Re: (Score:3, Informative)

          by Urgru (139637)
          It's pretty close to being done here too. The scheduling orders linked on groklaw ( last full sched [groklaw.net] and amendment [groklaw.net]) have summary judgment oppositions in October, replies in November, and a jury trial starting in February for any surviving claims. If that schedule is kept, the case should be done no later than April. Depending on the outcome, IBM may be entitled to reasonable attorney's fees.

          As for the SCO's claims being fraudulent, as asserted in another response to the parent, that's awfully hard to establi
          • Re: (Score:3, Informative)

            by belmolis (702863)

            When I suggested that SCO's case is "essentially fraudulent", I said "essentially" precisely because it isn't easy to establish. There is arguably an argument for sanctions under Rule 11(b)(3):

            (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;

            since SCO evidently had little or no evidentiary support for its claims, but it has waffled s

        • Plus, the loser would have to pay all court costs, which is why we don't get so many ridiculous cases in the first place.

          Which makes it harder for someone to file a lawsuit against a party that has harmed them.

          Falcon
      • by Eivind (15695)
        The SCO/IBM litigation may be long, but could ultimatley produce a seminal opinion that influences contract and copyright cases for years to come,

        How so ? There are no interesting questions that are even *asked* in the SCO case. So it's beyond me how any interesting questions could be *answered* by this case.

        What we have is a company that after several years are still not even close to actually stating a claim, much less providing evidence for anything. In what way is this supposed to influence anythin

      • This makes is possible to dispose of some matters more quickly, but you'll also see some things litigated over and over again that aren't repeated or end very quickly on a motion to dismiss (pursuant to a prior, precedential ruling) in the U.S. common law system.

        You are missing the point. As one of German judges said, he can rule on current situation, he doesn't have to look back to what matter was 10/20/30/+ years ago as his US colleagues have too.

        What's more, the law might not change, but reality

      • Louisiana, following French tradition, is different I understand. But your federal system goes with the majority.
    • Lawyers including judges need it that way.

      What the hell happened to quick and speedy trials ?
      • Re: (Score:2, Informative)

        by T-Ranger (10520)
        As no one is sitting in a jail cell, and no products are not shipping, there is little practical need for a speedy trial in this case.
      • by udderly (890305)
        Right, because they profit either way it goes. Predictable in light of this: http://www.opensecrets.org/industries/mems.asp [opensecrets.org]

        Only a fool would think that the $$ doesn't buy them some serious influence. Think about the absurdity of it: lawyers giving lawyers money to win elections, so that the government will make it easy to drum up more business. Democracy will always be in jeopardy because money decides elections.
        • Clearly, to have a fair democratic society, we need to get rid of this "money" stuff.
          • by honkycat (249849)
            Commie!!
          • No, we just need to get it as far away from elections as possible. Getting it as far away from television and the other media as possible is a good idea as well, not just for the political ad reason but also for the cancellation-of-good-shows reason.
      • > What the hell happened to quick and speedy trials?

        There are no such rights for a civil trial.
        There is only the right to a trial by jury, and then only if the value in controversy exceeds twenty dollars.

        • I've always been amazed at this. Did the framers of the constitution not realize that there was such a thing as inflation? Or is this just evidence that the constitution was never intended to be interpreted in a strictly literal sense, but rather taking into account the context of society/economy/etc. at the time.
          • Inflation didn't really exist until after the Depression. Or at least, it wasn't a constant rise until then.
    • Re: (Score:3, Funny)

      by Linker3000 (626634)
      In other news, SCO has requested a full source code dump of the soon-to-be-released blockbuster game 'Duke Nukem Forever', claiming to have evidence that certain aspects of the game closely resemble (or may have been copied) from their seminal (but also as yet unpublished) game 'Nuke Ducks Forever' - an innovative 'first person shooter' designed to appeal to fans of the growing-in-popularity sport of extreme small-game hunting.
    • Re: (Score:3, Informative)

      by Royster (16042)
      Very sad that european courts can deal with utterly absurd claims so very quickly in corporate cases (and have done so for SCO's), while the SCOX vs. IBM and SCOX vs. Novell still drag on even though by the judge's comments it's clear they know the thing is a farce.

      As the SCO v. Daimler-Chrysler case shows, US courts can deal swiftly with bogus claims. Part of the reason the IBM case has dragged on so long is IBM's approach to the case. Instead of making a motion for dismissal -- which might have dealt with
    • Re: (Score:3, Insightful)

      It could be that both parties want (or at least don't mind) the slow pace.

      SCO wanted discovery to drag on so they could continue fishing for evidence to back an improverished case.

      IBM might not mind the slow pace because they know they'll win a battle of attrition since SCO has limited funds. Also, IBM couldn't buy this kind of good publicity amongst IT managers.
  • Claims? (Score:5, Funny)

    by nine-times (778537) <nine.times@gmail.com> on Sunday October 15, 2006 @01:12PM (#16444413) Homepage
    Wait, so SCO actually had claims? As in, they claimed that IBM actually was doing something wrong? Funny, from everything I've read, I thought SCO had brought IBM to court on account of "nanny-nanny boo-boo."
    • Re:Claims? (Score:5, Interesting)

      by Channard (693317) on Sunday October 15, 2006 @01:17PM (#16444447) Journal
      My guess is SCO didn't expect it'd go this far. They were hoping they'd get settlements, no matter how minor, from the companies they were taking action against. In the same way that companies often settle out of court when a person sues them, just to avoid the potential legal costs of the trial - no matter whether the person suing is in the wrong or not.
      • Re:Claims? (Score:5, Insightful)

        by Generic Guy (678542) on Sunday October 15, 2006 @01:29PM (#16444523)
        My guess is SCO didn't expect it'd go this far. They were hoping they'd get settlements...

        And this I believe is why IBM decided to take their time, go through the entire court process, despite the increased costs involved -- this time -- to make an example out of SCO. Otherwise, IBM would be inviting multitudes of other lame and unsubstantiated lawsuits from all sorts of "IP" firms with no products. IBM is spending the time and cost now grinding SCO into salt to send a clear message to anyone else in the tech/patent business -- Don't mess with us!

        It actually shows a long-term kind of thinking which is sorely lacking in most of the corporate world today.

        • Actaully, if you have been following Groklaw, you will see that it is SCO that has taken the time, not IBM. I would assume that IBM would rather have had this over with long ago and then countersued them quickly and ground them into the dirt. This took so long because that was the deal that SCO cut with Sun and MS. Basically, Sun and MS wanted several more versions of OSs out before having to deal with IBM, SGI, HP, Novell, etc.
        • So the big, bad SCO decided to try an scare their victims with a long trial, and in doing so reaching an out-of-court settlement. SCO is now getting a taste of what they were threatening, a long trial. However, it is their ass that is getting whooped, not IBM's as they had hoped. Ohhh the Irony!!
      • Re:Claims? (Score:5, Funny)

        by nine-times (778537) <nine.times@gmail.com> on Sunday October 15, 2006 @01:30PM (#16444525) Homepage
        According to the consensus here on Slashdot, I thought the purpose was to drive SCO stock prices up so the executives could pump and dump, meanwhile getting funding from Microsoft so that they could stall and keep the whole thing in court as long as possible so that CIOs would be nervous about Linux.
        • Re: (Score:3, Interesting)

          by Anonymous Coward
          According to the consensus here on Slashdot, I thought the purpose was to drive SCO stock prices up so the executives could pump and dump, meanwhile getting funding from Microsoft so that they could stall and keep the whole thing in court as long as possible so that CIOs would be nervous about Linux.

          Redhat's suit against SCO in fact specifically makes that allegation, though they don't really have a cause of action, so it's really just color commentary.

          IBM may be the biggest of SCO's legal opponents, but Re
          • Re: (Score:3, Informative)

            One of IBM's counterclaims (I think either the 6th or the 9th... but I can't remember exactly) is also a Lanham Act claim.
          • Re: (Score:3, Informative)

            by rm69990 (885744)
            Actually, Novell never alleged Lanham Act violations. It is IBM and Red Hat that are suing for those.
      • by blang (450736)
        This is more than a guess. Larry Goldfarb from Baystar claimed, in his declaration, under penalty of perjury, that Boies himself told him that they expected IBM to settle, and settle quickly.

        Most poker players, when their bluff has been called, will slow down and fold. SCO made the choice to go all in. While there is no law against that, it was a very foolish and costly business decision. Because it is now becoming more and more clear, that SCO did not have any of the evidence they were boasting.

        I suspect B
    • Re: (Score:3, Insightful)

      by Alsee (515537)
      Wait, so SCO actually had claims?

      Of course they did.

      SCO claimed that that had claims.

      -
  • by HomerJ (11142) on Sunday October 15, 2006 @01:17PM (#16444445)
    I read the title then the little blurb.......this whole summary reads like something a spammer would stick to the end of an email to try and get past a filter.
    • The first portion of the summary is "My article at IPW reads:" which (if not spam) is certainly /. whoring.
    • by Servo (9177) <dstringf@@@gmail...com> on Sunday October 15, 2006 @01:20PM (#16444467) Journal
      It WAS spam.
    • by suv4x4 (956391) on Sunday October 15, 2006 @01:32PM (#16444535)

      I read the title then the little blurb.......this whole summary reads like something a spammer would stick to the end of an email to try and get past a filter.


      FTFA: ...Those pronouncements and the antagonism of the Linux aficionados has raised the various lawsuits above prosaic tedium... ...the imbroglio will Novell which seems to indicate that they do not even own the code which they assert some Linux may infringe upon ...

      Nope, I think paragraph long sentences and stuffing yout text with rare words in inappropriate locations is a very good way to get your message accross.
      • by sparkz (146432)
        Whereas "Post Eolas Internet Explorer" is perfectly clear English. I guess that the "rare words" are "antagonism", "aficionados", "prosaic" and "imbroglio"? Whilst they might not be words you would use every day, I would expect any adult native (or fluent) English speaker (and, in these cases, speakers of many other Latin-derived languages) to be comfortable with these words and their meanings. I agree completely that (from a quick look, no I didn't RTFA) the article is very badly written. These words shou
        • by suv4x4 (956391)
          Whereas "Post Eolas Internet Explorer" is perfectly clear English.

          This is targeted to people who'd know what it means. The rest need pay no attention. That said I'm gonnas dumb this sig for something more commonly understood pretty soon.
        • by Jesus_666 (702802)
          I would expect any adult native (or fluent) English speaker (and, in these cases, speakers of many other Latin-derived languages) to be comfortable with these words and their meanings.

          I'd expect any adult native (or fluent) English speaker to be comfortable that English is not a Romance but indeed a Germanic language. Even though it has been influenced by French, the English language is much more closely related to German (cf. the Low German language, which is somewhat similar to English).
  • Dear SCO, (Score:5, Funny)

    by Anonymous Coward on Sunday October 15, 2006 @01:27PM (#16444511)
    How much can I have a 'linux license' for now?

    You filthy teabaggers.
  • by hey (83763) on Sunday October 15, 2006 @01:47PM (#16444629) Journal
    Does this mean Microsoft should get a refund for the "license" they bought
    from SCO to use some Unix code.
    • Re: (Score:3, Insightful)

      by Mateo_LeFou (859634)
      No, MS only bought "piece of mind". The SCOSource license was a hilarious bit of salesmanship: buy this just in case something we're suing about turns out to have evidence backing it up.

      Here's a similar license:
      http://btetc.blogspot.com/2006/07/mattsource.html [blogspot.com]

      BTW I think MS might deserve a refund, having not got the "piece of mind" they were buying. That is to say: this maneuver backfired big time; IBM's response has laid waste to years worth of FUD, and Linux has 5 times the mindshare it used to.
      • by killjoe (766577) on Sunday October 15, 2006 @04:15PM (#16445579)
        IBM requested full discovery of all documents that mentio MS and SUN. There will be more lawsuits that IBM can initiate against MS from that pile. This gives IBM an excellent tool to leverage against sun and MS in the future.

        This suit was a huge tactical mistake by MS. They already regret funding it and they will regret it even more in the future.
    • by McFadden (809368)
      At the time they probably felt it was money well spent. When Microsoft 'bit the bullet' and bought a license, it inferred that their might be some kind of substance to SCO's claims, and so increased the nervousness surrounding the 'free' nature of Linux (and possibly Open Source in general); which is exactly what a closed-source, OS vendor wants to happen.
    • Re: (Score:1, Informative)

      by Anonymous Coward
      Uh, no. Novell says that money was for a unix license, that per the agreement with Caldera that money (less a 5% commission) belongs to them, they want their money now so SCO can't spend it, or at least to have it placed in trust pending a decision. SCO is faced with summary judgement petitions on two fronts now: IBM and Novell. If they lose either, their next legal bill will likely be for a bankruptcy filing. The bankruptcy lawyers get paid first, ahead of all the creditors, even the IRS. You'd think the l
  • by Animats (122034) on Sunday October 15, 2006 @01:48PM (#16444635) Homepage

    The reason this has been such a slow process is that SCO is the plaintiff, and they're stalling. Usually, the plaintiff, who initiated the case, is pushing the case forward, while the defendant tries to stall. This case is backwards.

    But stalling only works for so long. SCO was able to drag out pretrial discovery for years. But now, discovery is over. No more surprises. No more "we'll disclose the evidence when the time comes" from SCO. That deadline has past. Now the pace picks up. Here's the final part of the case schedule [groklaw.net], as set by the court:

    • 17-Mar-06 Close of All Remaining Discovery (DONE)
    • 19-May-06 Initial Expert Reports (DONE)
    • 17-Jul-06 Opposing Expert Reports (DONE)
    • 28-Aug-06 Rebuttal Expert Reports (DONE)
    • 22-Sep-06 Final Deadline for Expert Discovery (DONE)
    • 25-Sep-06 Dispositive Motions Summary Judgment Motions (DONE)
    • 13-Oct-06 Responses to Requests for Admissions (DONE)
    • 25-Oct-06 Oppositions to Dispositive Motions Summary Judgment Motions
    • 24-Nov-06 Reply Briefs on Dispositive Motions (Reply Memoranda)
    • 12-Jan-07 Rule 26(a)(3) Disclosures
    • 19-Jan-07 Final Pretrial Order
    • 22-Jan-07 Deadline for Exchanging Proposed Jury Instructions
    • 26-Jan-07 Motions in Limine
    • 30-Jan-07 Special Attorney Conference and Settlement Conference
    • 05-Feb-07 Oppositions to Motions in Limine
    • 09-Feb-07 Reply Briefs on Motions in Limine
    • 26-Feb-07 5-week Jury Trial

    Notice how the events come closer and closer together as the trial date approaches and the judge becomes more directly involved.

    The next exciting moments will come in late November or early December, when the judge decides the summary judgement motions. SCO will then be worse off than they are now; the only question is how much worse off.

    • by Anonymous Coward on Sunday October 15, 2006 @02:45PM (#16444959)
      SCO's lawyers have used brilliant stalling tactics. The longer the case is before the court, the longer the FUD lasts; the longer some people stay out of jail (Darl could be in real trouble because of some of his public statements.) There could be real trouble because of Lanham act violations. AllParadox and Marbux (lawyers) seem to agree that Darl and co. will be found personally liable to the extent that they will lose all their assets.

      There is also reason to believe that IBM may not wish this case to end as quickly as it otherwise might. What the judge and the SEC and the AG do to SCO, and everyone involved with this scam, will serve as a warning to anyone else who thinks they can pull a similar stunt. It is not for nothing that IBM's lawyers are nicknamed the Nazgul. What matters to most of us is that the judge will find that Linux is pristine wrt the taint of any Unix code. That's important to IBM because they seem to have bet the farm on Linux. Unix, AIX, Dynix, mainframe, etc. are slowly subsiding and IBM will have trouble surviving in a Microsoft only world. They need Linux and they need the business community's confidence that they can use Linux without being sued.

      The other thing that might have been lost if the case ended sooner is Goldfarb's (Baystar finance) declaration in which he fingers Microsoft as being behind at least some of SCO's litigation financing. A couple of years from now, when we have a new president, the Microsoft antitrust settlement could be re-visited. If Microsoft is found guilty of financing SCO's lawsuit (it's illegal to do so) then Microsoft could be facing breakup again.

      This is all big stuff for IBM and they do have some reason to want to see the wheels of the law grind exceeding fine. origin of quote [phrases.org.uk]
      • Yes I know it's OT but the link is not correct, the actual words are

        Gottes Muhlen mahlen langsam,mahlen aber trefflich klein
        Ob auss Langmuth er sich seumet, bringt mit Scharff er alles ein.

        Sorry to be a pedant but I am always annoyed when a source quotes a translation as the original.

      • Heh, i doubt M$ will be caught, they surely got the money to weasel out of it.
      • Re: (Score:3, Funny)

        by dbIII (701233)
        A couple of years from now, when we have a new president, the Microsoft antitrust settlement could be re-visited.

        I can't see Rumsfeld doing that.

        • by rossifer (581396)
          Rumsfeld is the only Bush cabinet official with single digit approval ratings. However, given complete control over the voting machines, stranger things have happened.

          If it does and he is, my family and I are packing up and leaving. It's a beautiful place, but hasn't been the home of the free in some time now. If it doesn't start heading back that way, there are better places to be.

          Regards,
          Ross
      • by HuskyDog (143220)
        Why precisely is it illegal to finance a lawsuit? Although I am not in favour of Microsoft's alledged actions in financing SCO, I often see circumstances where someone seems to have suffered an injustice, but can't claim redress because they can't afford the legal costs. I think to myself "If I were rich, perhaps I would offer to help them out". Do I understand that such philanthropy would be illegal? Is it all part of a scheme to maintain the legal system as a means for the rich to oppress the poor?
    • Msft and scox sure got there money's worth out the scam. 5 years of FUD for msft for less than $100 million is a great bargin. It costs about $40 to make a single commercial.

      As for Darl, he's pocketed about $2 million in the last four year, which isn't bad for a small-time scam artist like Darl.

      Overall, I'd say the scam was a great success for the scammers. Maybe not all they hoped for, but a success none-the-less.

      And please forget this non-sense about the scammers being held accountable. That sort of thing
  • Misuse of copyright (Score:2, Interesting)

    by Anonymous Coward
    Misuse of copyright means that someone uses copyright for a purpose that isn't intended for copyright. In SCO's case it means that by claiming copyright on 300 or so lines of code, they claim to control a zillion other lines of code. IIRC, it amounted to 0.005% of the total.

    One of the cases IBM cites is interesting. In Lasercomb v. Reynolds, Reynolds et al copied Lasercomb's code and sold it under their own name. That should be a slam dunk conviction, right? The court let Reynolds off because Lasercomb
    • by mr_walrus (410770)
      >Copyright is to keep me from copying Microsoft's copyrighted works.
      >It isn't intended to enforce a license fee on me. Once I have purchased a copyrighted work,
      >it is mine forever to do anything I wish, except copy.

      except microsoft is not using copyright to enforce licensing fees. it is using
      the EULA to enforce licensing fees.

      as in LA="license agreement"

      • by Saffaya (702234)
        >

        And as has been remarked on / before, a licence is a contract,and a contract must be agreed upon by both parties BEFORE YOU PAY IT in order to be enforcable.
        Pushing down my throat whatever terms you feel like (not even mentionning altering them with a security update) after I have paid for the product has few chances of being regarded by a court of law as a valid pre-purchase agreement.

        That's the fun point to be discussed by the justice system.
        • it shouldn't be 'discussed in the justice system' it should be legislated upon (in favour of the consumer) so the current brand of EULA-related FUD can be throw out and so that whether an EULA really stands up can be decided before some poor schmuck gets lumbered with a debt they can never hope to pay off in their lifetime and that they can't clear by declaring bankrupcy.
    • by tepples (727027)
      In SCO's case it means that by claiming copyright on 300 or so lines of code, they claim to control a zillion other lines of code.

      Isn't that just like the "viral" provisions of the GNU General Public License and other copyleft licenses?

      • by Alioth (221270)
        I hope you're just being ironic - but the GPL has no "viral" clauses - it is not viral in any sense. That was just Microsoft FUD that people have fallen for. The GPL basically states in these clauses that Microsoft called viral - if you make a derived work from the GPLd code, it must also be licensed under the GPL or compatible license. It doesn't say anything like "your copyright must be signed over to the FSF" or anything like that. You, as the writer of the derivative code, are the copyright holder of th
      • by spitzak (4019)
        I hope you are joking, but I suspect not.

        No, you cannot distribute your zillion-line program without source if it contains 300 lines of GPL code.

        However, YOU CAN REMOVE THAT 300 LINES and then distribute the rest just fine. This is NOT what SCO is claiming.

        Please look up the what the sentence "REMOVE THE 300 LINES" means. It means ONLY 300 lines. It does not mean all your code. Your code is not "infected" one tiny little bit.

        Perhaps I have managed to "get the facts" into your little pea brain. But I doubt i
  • by cfulmer (3166) on Sunday October 15, 2006 @02:13PM (#16444781) Homepage Journal
    Their first claim is a bit off -- in order to find copying of a computer program, you don't actually need to have copying of the actual code, either source or object. It can be sufficient to copy the structure. So, for example, using somebody else's design documents to generate your own code can still be an infringement, even though you never even SAW their source code.

    There's this concept in US copyright law called the "Idea/Expression dichotomy." Basically, this says that you can't protect an idea, but you can protect the expression of that idea. The difficult part is trying to figure out where the boundary exists -- the expression isn't just the written word itself. For example, a book about a boy wizard named Larry Hatter and his two friends at a British school "Pigzits" of witchcraft divided into four houses where they fight a guy called "he who nobody wants to name" with a lot of other similar details would probably infringe J.K. Rowlings' copyright in the Harry Potter character, even if none of the actual language was copied. (Parodies are another matter....)

    The same thing goes in code. The fact that there is no actual code duplication does not mean that there isn't any copyright infringement -- it just means that SCO's case is that much harder to prove.
    • Re: (Score:1, Insightful)

      by Anonymous Coward
      The problem with the previous argument is that SCO isn't suing Linux, it's suing IBM. For SCO's claims to survive Summary Judgement, they have to prove that:

      1. IBM contributed the code
      2. The code is protected
      3. SCO owns the code

      The reason their claims have been cut down from 294 to a mere handful is because they couldn't point to code they owned and code in Linux at the same time. Also, in your example, the sample text is VERY similar to the Harry Potter books. If you read IBM's exhibits supporting th
    • Re: (Score:3, Interesting)

      by augustz (18082)
      Critically for SCO however, the expression of the idea must be in code form. The computer does not run on comments.

      So even if they are chasing expressions, they do need to point to actual code that implements the expression of the idea they are claiming was stolen, and then prove a bunch of other things. They seem to have had a very very hard time doing this.

      By most accounts, and despite the hype of their claims that code was literally copied and that they have copyright claims on millions of lines of code,
    • by DrJimbo (594231) on Sunday October 15, 2006 @05:26PM (#16446195)
      While it is true that copyright can be violated without literally copied code, your comment seems to overlook the context of CC10, which is extremely important.

      SCO was forced (by the judge) to disclose all possibly infringing code back in December of 2005. All sides agreed that this list from SCO could include methods and concepts as well as literally copied code. But, even for their methods and concepts claims, SCO was required to show where in "their" SysV code these methods and concepts were expressed and then also show where they were re-expressed in the Linux code.

      SCO did not do this. Instead, they said that IBM already knew where the "copied" methods and concepts came from in SysV. IBM filed a motion to have all of these nebulous claims from SCO thrown out. The judge agreed with IBM and in her ruling said:
      Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'it's in there somewhere, you figure it out.'

      With the methods and concepts claims tossed out, IBM was left to deal with the literal copying claims. Most of these IBM refuted (in a separate memo) because the claims didn't involve any code that SCO even claimed to own. When the whittling down was done only 300-odd lines of "copied" SysV code were left. If you had bothered to RTFA, you would have seen that IBM claims:

      The particular lines SCO has identified as allegedly copied are a scattered and fragmentary collection of define statements, data structures and function prototypes, not qualitatively different in form or character or content or their individual importance from the many thousands of lines of other interface code. (ex 215 P37) Nor is their any apparent pattern, regularity, consistency, or cohesiveness to the accused code; it is scattered throughout the files, sometimes only a line or two in a file

      You are correct that copyright can be violated without literal copying but that fact is not applicable to the article or the IBM memo the article is discussing. I also disagree with your conclusion that these documents presented by IBM merely make SCO's case "that much harder to prove". IMO, the vast collection of memos by IBM to support their summary judgment motions provide overwhelming proof that SCO's claims are impossible to prove. If I am correct, and there are no legal gaffes, then IBM will prevail in their summary judgment motions.

    • by Eggplant62 (120514) on Sunday October 15, 2006 @06:42PM (#16446893)
      What SCO relies on as evidence of code copying is their employee Sandeep Gupta's Redacted Declaration [groklaw.net], in which he details what he believes to be the major copying offenses. However, Gupta's analysis of the code, as rebutted by Brian Kernighan [groklaw.net], doesn't exclude materials that SCO couldn't claim copyright over, such as code that is mandated by standards and common industry practices, materials which have already been placed in the public domain, and elements of code over which SCO couldn't claim ownership. Also, IBM claims that they have received from Caldera licenses to use the code.

      IBM's Summary Judgment motions are works of art. They're clear, they're concise, and I cannot see how SCO could squirrel out of having their entire case tossed away like so much garbage. I'm looking forward to the 25th of this month as we'll finally see what the SCO weasels try to pull to keep this whole farce alive. I expect to be laughing like a hyena as I read those memos.
    • by MojoRilla (591502)
      This is incorrect. Computer programs are functional, not works of fiction, and copyright law specifically excludes method and concept protection.

      From this Supreme Court amicus brief [mit.edu]:

      Section 102(b) of Title 17 of the U.S. Code provides: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such

      • by cfulmer (3166)
        First of all, you can't quote an amicus brief as proof of the actual law -- these things are often a statement of what people would like the law to be, not what it actually is.

        I point you to Computer Associates v. Altai, a 1992 case, (It's online at http://digital-law-online.info/cases/23PQ2D1241.ht m [digital-law-online.info] ). A major quote: "if the non-literal structures of literary works are protected by copyright; and if computer programs are literary works, as we are told by the legislature; then the non-literal structures
  • Brief Summary (Score:5, Interesting)

    by UnknowingFool (672806) on Sunday October 15, 2006 @02:19PM (#16444819)

    I could only discern 4 reasons:

    1) IBM's Unix agreements do not prevent them from contributing their AIX or Dynix code to Linux.
    The Unix System V agreement only limited what IBM could do with original System V code. Code developed by or for IBM was never intended to be controlled by AT&T or its successors. Everyone who was involved in the original negotiations agrees with IBM on this point.

    2) SCO's predessors (AT&T, USL, Novell) specifically told their licensees they could do what they wanted with their own code.
    AT&T specifically told concerned licensees via newsletter and correspondence that all code developed independent of System V was theirs. Over the next two decades, AT&T and it successors except SCO allowed all licensees to do what they wished.

    3) Even if 1 and 2 were not true, SCO's predessors and SCO itself have already waived any breaches that may have occurred.
    Novell has waived any breaches. Also, SCO's distribution of Linux (which contains some of the alleged breached material) waives the breach. SCO's predessor's contributions to Linux also waives their rights to specific alleged material.

    4) Statute of limitations prevent SCO from pursuing any claims.
    The statue of limitations is 6 years in New York. SCO has known about alleged breaches since 1995. SCO first filed suit in 2003 which beyond the statute of limitations.

    • Re:Brief Summary (Score:5, Informative)

      by elronxenu (117773) on Sunday October 15, 2006 @04:48PM (#16445861) Homepage
      Eh? It's in the document very clearly.

      1. SCO has no evidence of improper action by IBM
      2. IBM has a license to use all of the Linux code (this covers any Unix code which may have been put into Linux by 3rd parties)
      3. SCO cannot pursue any claims because they knew what was in Linux years before bringing suit
      4. SCO cannot prove substantial similarity between Linux kernel and System V
      5. SCO has abused its copyrights (if it even has any) rendering them unenforceable.
  • by Anonymous Coward on Sunday October 15, 2006 @03:09PM (#16445097)
    The article says that the penalty for copyright misuse is forfeiture. This is not true at all.

    If you read the Grokster [com.com] decision, you'll find a comprehensive discussion of copyright misuse, but as the PrawfsBlawg points out [blogs.com], for those who wish the short version, the penalty is not getting to enforce for as long as the misuse continues: "The effect isn't to invalidate the copyright, but rather to preclude its enforcement so long as the misuse is ongoing."

    Larry Lessig has suggested [lessig.org] it *ought* to be penalized with forfeiture, but that isn't the law. People who are not lawyers or in any way trained in the law should probably be careful not to assert things that they don't know or can't prove, and should put links to proofs others can check, so others are not misled. A little modesty goes a long way.

    • by DrJimbo (594231) on Sunday October 15, 2006 @06:00PM (#16446581)
      Did you even bother to read the fine memo by IBM? On page 43 of the second pdf, the IBM lawyers say:
      V. SCO HAS MISUSED ITS ALLEGED COPYRIGHTS
      SCO's infringement claim should also be rejected because SCO has misused the copyrights and therefore is not entitled to enforce them.
      IBM's lawyers follow this up with five pages of discussion and explanations including copious references to previous cases all of which (they claim) back up their statement.

      The article provided and accurate summary of IBM's misuse of copyright argument. It seems that you disagree with IBM's lawyers on the proper sanctions for misuse of copyright in this particular case. I believe that IBM's lawyers are lawyers and are very much trained in the law. They are also intimately familiar with this case.

      So who should I believe? IBM's Nazgul or an obviously uninformed anonymous troll on Slashdot. H'mmm ... the lawyers or the troll? A tough call, but I'm going to side with IBM's lawyers on this one. Of course the only opinion that really matters is that of the judge.

      The level of bogosity and FUD in your post is extremely high. Since you seem to imply that you yourself are a lawyer and are trained in the law, perhaps you should have signed-in to post your comment so that you could use it as part of an application for a job at BS&F, the law firm representing SCO. On second thought, it occurs to me that perhaps you are already working for them.

      • Re: (Score:3, Insightful)

        by zsau (266209)
        Umm... What you've quoted says 'SCO is not entitled to enforce them'. What your PP said is the penalty for misuse is that the holder does not '[get] to enforce for as long as the misuse continues'. Those two statements are entirely harmonious. SCO doesn't get to enforce them. IBM have not said that SCO loses them. They've just said they can't enforce them.

        Perhaps there's more in the document you don't link to that actually does agree with what you're saying, but if you're going to contradict and insult some
        • Re: (Score:3, Informative)

          by DrJimbo (594231)
          The key difference between the two phrases you say are harmonious is the words "... for as long as the misuse continues". But further on you say that losing the right to enforce a copyright is different from forfeiting the copyright. ISTM that the IBM statement, without the "for as long as ..." clause means permanently losing the right to enforce. It had not occurred to me that this phrase by IBM meant anything but permanently losing the right to enforce. One reason for this is the concept of "the mis
          • by zsau (266209)
            As I say, I'm not a lawyer and I don't play one on Slashdot, but my interpretation of the 'for as long as' bit was that if SCO's misusing their copyright when trying to sue IBM, they're not going to be able to sue IBM ever on the same grounds, so for all intents and purposes, yes, the loss of enforcement is perpetual. But if SCO decided to change tracks and sue me for copyright infringement because I've got a pirated copy of UNIX on my computer and I'm sharing over P2P[*], then they can because it's a compl
            • by DrJimbo (594231)
              Thanks for that explanation. It makes sense in a way. But if you follow this link [blogs.com] (provided by the orignal poster) and scroll down you will find that the "as long as" ruling he refers to was in a case where the misuse of copyright claim was denied.

              In that case, the defendant tried to make all p2p sharing of the RIAA's music legal by making a misuse of copyright claim based on the idea that the virtual monopoly of the RIAA was against the public good. If the defendant had prevailed in their misuse o
      • by khallow (566160)

        The article provided and accurate summary of IBM's misuse of copyright argument. It seems that you disagree with IBM's lawyers on the proper sanctions for misuse of copyright in this particular case. I believe that IBM's lawyers are lawyers and are very much trained in the law. They are also intimately familiar with this case.

        IBM's lawyers also represent IBM and hence are not a reliable source. This particular argument may be well within the confines of copyright law or a novel and adventurous intepreta

    • The words I actually used were: This is a legal nicety evidently, but the penalty enforced by federal courts for overreaching copyright claims is forfeiture in the instance. It appears I ought have elaborated, but I thought "in the instance" would have made it clear that the forfeiture meant for any actual copyrights involved regarding the accusation in that specific case. As said in the article IANAL, and all I really know is what I've read here and there and what is in the memorandum, but it does look
  • Redacted (Score:2, Insightful)

    by glas_gow (961896)
    The rebuttal is pretty comprehensive, barring the section about the lines of memory allocation code, which is sort of passed over quickly (if I remember correctly, when the case started, Linus Torvalds had something to say about some malloc or other). Other than that, what matters now, and what the trial will probably concentrate upon, are the previous agreements between the parties, most of which are redacted from the summary.
    • by lspd (566786)
      The rebuttal is pretty comprehensive, barring the section about the lines of memory allocation code

      I would tend to agree and would love to talk about it more....after the motion is decided.
  • by Vryl (31994) on Sunday October 15, 2006 @07:29PM (#16447293) Journal
    [Aussies will get the ref above]

    But, yeah. There was going to be one sooner or later. There were questions about Linux that this suit answers.

    Yes, it really is free. Yes, you can use it legally, for free. Yes, it really was developed without pinching anybody elses code. No, you will not get sued for using it.

    Thanx SCO!
    • Actually, all it answers is that none of the SVRX code SCO thinks it owns are illegally in Linux if/when IBM wins. There is still a possibility that someone else's code could either have been pinched and thrown in, or that someone could steal code and try submitting it to Linux, and hopefully this lawsuit will show the world how NOT to handle that situation.
  • by sgt scrub (869860)
    Is there a running apology letter to EV1 for misinterpreting their involvement in all of this? It sucks that they will not be able to recoup the $800K in blackmail. It would be worse if everyone forgot they were victims.

"I'm not a god, I was misquoted." -- Lister, Red Dwarf

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