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

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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  • 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.

  • Re:the US system (Score:3, Informative)

    by CowboyBob500 ( 580695 ) on Sunday October 15, 2006 @02:39PM (#16444931) Homepage
    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.

  • 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.

  • Re:the US system (Score:3, Informative)

    by Urgru ( 139637 ) on Sunday October 15, 2006 @03:22PM (#16445205) Homepage
    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 establish. They may ultimately be dismissed or ruled on summarily but so far as I know IBM hasn't asked for Rule 11 [cornell.edu] sanctions, which you would normally do in the face of patently frivolous or fraudulent claims and before any meaningful discovery.

    I personally doubt that the final SCO/IBM decision will be a groundbreaking and haven't taken the time to read all of the filings because it looks, on its face, to be a relatively mundane suit. I'd like to think that SCO is estopped [wikipedia.org] from making its claims in the first place because they operated a Linux business that distributed the purportedly infringed code under GPL, inducing reasonable businesses (e.g., IBM) to use/market the same code under the assumption that there would be no claim of infringement. The case may very well be decided in a way that creates no meaningful precedent and the court could avoid some of the issues of interest to the FOSS community by, for example, deciding based on IBM/SCO contract provisions w/o discussing the GPL or Linux.

    Regardless of the outcome, the U.S. and European systems are so different that it's not terribly fair to compare the District of Utah case with the cases in Germany and elsewhere. We could fairly knock the U.S. courts if an action had been brought and already disposed of in the United Kingdom :-)
  • by T-Ranger ( 10520 ) <jeffw@nOSPaM.chebucto.ns.ca> on Sunday October 15, 2006 @03:43PM (#16445337) Homepage
    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 Flying pig ( 925874 ) on Sunday October 15, 2006 @04:19PM (#16445601)
    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.

  • Re:the US system (Score:3, Informative)

    by Knetzar ( 698216 ) on Sunday October 15, 2006 @04:42PM (#16445819)
    Yeah, but IBM could have asked those same questions, and the judge could force SCO to respond to them.
  • 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.
  • Re:the US system (Score:3, Informative)

    by Dogers ( 446369 ) on Sunday October 15, 2006 @05:03PM (#16445975)
    But how would the lawyers make their millions in that trial? :)
  • Re:Claims? (Score:3, Informative)

    by Amazing Quantum Man ( 458715 ) on Sunday October 15, 2006 @05:15PM (#16446073) Homepage
    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:Claims? (Score:3, Informative)

    by rm69990 ( 885744 ) on Sunday October 15, 2006 @05:18PM (#16446103)
    Actually, Novell never alleged Lanham Act violations. It is IBM and Red Hat that are suing for those.
  • 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.

  • Re:the US system (Score:3, Informative)

    by belmolis ( 702863 ) <billposer AT alum DOT mit DOT edu> on Sunday October 15, 2006 @05:52PM (#16446503) Homepage

    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 so much as to what its actual legal claims (as opposed to the claims it has made in the press) are that this is pretty slippery. In any case, it may be that IBM decided that it would be better to spend the time and money to cream SCO and resolve these issues definitively.

  • 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:
    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:the US system (Score:3, Informative)

    by Royster ( 16042 ) on Sunday October 15, 2006 @06:36PM (#16446829) Homepage
    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 many of SCOX's claims, IBM chose to respond with 14 counterclaims - more claims than in SCOX's original suit. This, as much as anything else, added tremendously to the complexity and time required to prepare the case.

    In SCO v. Novell, Novell did begin with motions to dismiss -- and their first such motion was granted. But, because the Asset Purchase Agreement between Novell and the original Santa Cruz was so poorly drafted, the judge could do nothing at to grant a permanent dismissal. It appears that the parties never really agreed whether copyrights should be transferred, so they papered over the problem with the nonsensical "except for copyrights necessary to run the business" language. Even Novell eventually piled on a number of counterclaims of their own.

    What you have in cases with counterclaims is two cases going on simulatneously. That is going to take a long time.
  • by DrJimbo ( 594231 ) on Sunday October 15, 2006 @08:53PM (#16447935)
    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 misuse continuing" makes almost no sense in the current case.

    I tried to stress in my post that the IBM memo was about applying the law to this particular case. Did you not find it somewhat ironic that the anonymous poster provided an implicit legal opinion (that the Grokster case was so similar to the current case that the same ruling would have to apply) and also warned us to not accept legal opinions from non-lawyers?

    The Grokster case is vastly different from the current case. A better analogy would be if Grokster sued the RIAA for $5 Billion for copyright infringement of the RIAA's entire collection after Grokster surreptitiously put one song they owned the copyright to onto one compilation album. If the anonymous poster was a well informed lawyer then they were being disingenuous for implying the Grokster case and the IBM case were so similar that the same ruling would have to apply as a matter of law. If the anonymous poster was not a well informed lawyer then they were being disingenuous for implying they were. The anonymous poster also asked for links that a reader could check. I followed the links to get to IBM's memo and apparently the anonymous poster did not.

    IBM does provide more evidence that backs up my interpretation of their phrase (and I remind you that I honestly did not imagine that a different interpretation was possible). On page 48 of the 2nd pdf IBM quotes from the ruling in the case of qad inc. v. ALN Assocs. Inc:
    [qad's] copyright misuse extended [its] copyright privilege beyond the scope of the grant and violated the very purpose of a copyright, which is to give incentive for authors to produce. After all, the creation of orignal writings is inhibited -- not promoted -- when a possessor of a copyright commits the kind of misuse evident here. This Court should not and will not offer its aid to a copyright holder whose actions run contrary to the purpose of the copyright itself.
    BTW, I limited my quotation from the IBM memo because the entire document was scanned in so I couldn't just simply copy-and-paste.

    I still think the article gave an accurate summary of IBM's memo. I don't think the anonymous poster read the relevant section of the memo. Maybe there is a difference between forever losing the right to enforce a copyright and losing the copyright, but if there is, you would have to explain it to me because I don't see that it makes any real difference.

    IMO, the key mistake made by the original poster was to assume that the ruling on a particular law in one case (Grokster) would automatically apply to all rulings on that law. That mistake, combined with the implication that the poster was a lawyer; the headline screaming "Serious mistake in the article about the law"; and insightful moderation led me to call FUD. I still think the original post was FUD from a troll. In contrast, I think you made valid points so I tried to address them.

  • by Anonymous Coward on Sunday October 15, 2006 @11:41PM (#16448953)
    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 laws were written by lawyers...

    The captcha is "victors". Nice to see slashcode has a sense of irony!

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