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IBM Files For Declaratory Judgement In SCO Case
Some Bitch writes "IBM has filed for declaratory judgement in the SCO case. They want the court to declare that "IBM does not infringe, induce the infringement of or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in Unix are invalid and unenforceable.". If the judge grants the motion then SCO effectively has no case and the whole thing is over."
spafbnerf notes that "SCO has filed a motion for the patent infringement claim to be split into a separate case." fr0z adds a link to Groklaw's always-excellent coverage.
SCOs motion to Bifurcate in IBM case seemed like bad panick reaction. As put in Groklaw earlier, it looks like they want to separate their case from the most hopeless things by dividing it into two. Now the judge can only guess, whether what IBM is asking, is the most hopeless part. IMO it is.
In the late 1970's Microsoft licensed UNIX source code from AT&T which at the time was not licensing the name UNIX. Therefore Microsoft created the name Xenix. Microsoft did not sell Xenix to end-users but instead licensed the software to software OEMs such as Intel, Tandy, Altos and SCO who then provided a finished version of their own Xenix to the end-users or other customers. SCO introduced its first version of Xenix named SCO Xenix System V for the Intel 8086 and 8088 in 1983. Today SCO Xenix is one of the more commonly used and found versions of Xenix.
Linux was based on Minix. A UnixLite OS designed to run on PCs. However, it was really only a teaching tool. Andrew Tanenbaum repeatedly refused to add the new (legitimate) features the users and even developers asked for. Linus Torvalds set out simply to add functionality to his own version of Minix (the copyright allows use to do so for your own personal use, but you cannot sell or distibute it).
Over time, in adding functionality to Minix, Linus Torvalds found that he had created an entirely new kernel. I was very similar to Minix but used none of the Minix source code. Torvalds had originally called it freax, for "`free' + `freak' + the obligatory `-x'. The operator of the FTP server where Linus' new kernel made its debut didn't like the name and simply called it Linux (Linus + Unix). People seemed to like the name so it stuck.
SCOX
I shorted it at 17.96 in early January. I'm a happy camper if IBM wins this.
An interesting move is that IBM has also newly registered some of its Linux Kernel copyrights, such as JFS support (see Groklaw for details) and added those to its GPL breach counterclaims.
Here's the typical "the case must have merit because the guys who filed it are smart" argument often given by the trolls on the Yahoo SCOX board. Yes, McBride has gotten wealthy by filing groundless lawsuits. He sued a previous employer that fired him for incompetence. It's called "greenmail", where the respondent would rather settle than face and expensive and costly trial process.
Another troll tactic used in this post is saying there are "compelling" pro-SCO information, without saying what it is. Hey, if there was such great pro-SCO stuff on Groklaw, repeat some of it here!
Troll! Dirty, slimey troll!
TSG is suing IBM for copyright infringement, see their second amended complaint. IBM is most certainly right to think that this would strengthen their hand in the contract fight as well. If they can obtain a declaratory ruling to the effect that Linux does not infringe any TSG copyrights then TSG was completely without basis for terminating their contract (if they ever had one).
There was Cowboy Neal at the wheel of a bus to never-ever land.
First off he said he's an attorney, not a lawfirm.. and second he said that he worked at a corporation, you were quick to trigger the troll card.
You may disagree with his statement, but this is something that isn't being discussed at all. I believe this whole SCO thing is having an impact on linux adoption, it's silly to believe otherwise. Corporations like stability (insert windows joke here). The volatility in linux's future right now is a turn off, whether it's warranted or not.
Here's what the [H]'s website says about it:
Work is punishment for failing to procrastinate effectively.
>>Well, despite the excellent information provided by groklaw, it is simply unreasonable to assume that SCO's case is completely baseless.>These are intelligent, wealthy people, and they did not get that way by filing groundless lawsuits.
Wrong. Check their histroy. Scox has never been profitable by legitimate sales of products or services. All of scox's money has come from: 1) bogus IPO (still under investigation by SEC). 2) Lawsuit against MSFT. FUD money from msft and sunw.
Also, that IBM is filing for this judgement now doesn't mean that the judge will rule on this next week. AFAI understand, this judgement will just be part of the final ruling on the case.
Exactly. Some people are confusing declaratory judgement (i.e. asking the judge to produce a definitive ruling on a matter... eventually) with summary judgement (i.e. asking the judge to throw the litigious bastards out of court now, because they have no case).
And we have Linux all over the place. Replacing Windows and elderly Unix boxes at an accelerating pace.
We're ignoring SCO. Completely.
Government of the people, by corporate executives, for corporate profits.
For those of you who (like me) regularly check groklaw for updates and news, they've got a cut down headlines-only page.
= Headlines
http://www.groklaw.net/staticpages/index.php?page
That page puts less stress on their server, so if you'd like to help reduce their bandwidth costs...
Warning: May contain nuts
I wish IBM would fight them in court, win, and countersue for further damages to prove the point.
They are countersuing for damages, and not just lawyer fees. See the ammended counterclaims at groklaw.
The article is incorrect. The writer appears to have confused a 'declaratory judgement' with a 'summary judgement' - but it's the former, not the latter. It just means that this declaration is part of the remedy IBM is asking the court to provide, when the case finally comes to a conclusion and they win.
A summary judgement would be a motion for the Judge to declare that there is no need for a trial, that he can rule based on the facts already in evidence and stipulated. That's a very different thing, even though a lot of people seem to be confusing them.
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Friends don't let friends enable ecmascript.
The stock price goes up or stablizes. When you "cash in" a short, you have to buy the stock you shorted. Often sell offs are slowed by people getting out of shorts.
57. ...In its first complaint, SCO principally alleged that IBM had
misappropriated SCO's trade secrets in UNIX System V....
60. ...SCO further persisted in maintaining for nearly a year the unsound claim
that IBM had misappropriated its trade secrets. Yet when pressed to identify a
single trade secret that IBM had allegedly misappropriated, SCO could not, even
after being ordered to do so by the Court. SCO finally (and properly) abandoned
this claim, upon which SCO's entire lawsuit was initially premised, in its
Seconded Amended Complaint.
72. Although its initial complaints against IBM did not include a claim for copyright infringement, SCO stated publicly after it filed suit that IBM had infringed SCO's copyrights, and threatened to sue IBM for copyright infringement with respect to Linux. For example, at its 2003 SCO Forum conference, SCO represented to attendees, including press and financial analysts, that Linux is an unauthorized derivative of UNIX, that IBM had infringed its rights in Linux, and that SCO was entitled to damages and injunctive relief against IBM.
73. At the December 5, 2003 hearing concerning discovery issues, SCO further represented to the Court that SCO would be filing a copyright infringement action against IBM "within the coming few days or no less than a week."
102. Yet despite an Order directing SCO, among other things, to "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action action against IBM" by January 12 2004, SCO failed adequately to do so. In its supplemental responses purportedly submitted in compliance with the Order, SCO still failed to identify a single line of UNIX System V code that IBM allegedly misappropriated or misused.
103. In fact, finally realizing that it could no longer maintain the illusion that IBM had misappropriated its trade secrets, SCO dropped its trade secret claim altogether. SCO continues, however, to press equally meritless contract and other claims against IBM, despite being unwilling to identify the UNIX System V code that IBM allegedly misused in violation of any agreement.
This guy obviously is not a lawyer and has not even read the argument. He states that IBM would have to:
show that there's no controversy about SCO holding the copyrights to the UNIX code in question, and that's patently false.
Actually, that's *exactly* what they are saying. Because SCO has dropped all arguments of copyright infringement against IBM and is now pursuing contract suits. SCO has stated this is not about them violating copyright anymore. Mod parent down.
IBM is trying to swat a fly that used to be the size of a hummingbird. Less of an easy target, but still annoying. IANAL, but I don't see any reason why the judge wouldn't hand them the flyswatter.
Dr. Claw was the head of MAD.
In Dungeons and Dragons (D&D), your AC is how difficult it is for someone to hit you. If you're really really drunk, your unpredictable movement makes it hard to hit you with a weapon. Thus you'd get a bonus to your AC.
Agreed, really well written. From IBM's counterclaims:
SCO undertook to create fear, uncertainty and doubt in the marketplace in regard to SCO's rights in and to that [Unix] technology.
This has to be the first time I've seen jargon actually fit concisely and neatly into a legal text!
Go IBM...
---- scrm
If you unknowingly buy stolen goods, and the legal owner of those goods is discovered, you're still out whatever you paid for them. You have to seek compensation from the person you bought the goods from.
File under 'M' for 'Manic ranting'
SCO & IBM would be in some serious trouble if they showed any of the source code evidence to their own engineers rather than their legal experts.
Besides, SCO already had access to Dynix/AIX as part of Project Monterey.
According to the GPL, if IBM redistributes a GPL program, then section 7 of the GPL implies that IBM licenses its patents that cover that program to anybody who receives that program.
It reminds me of my last job interview: this guy asked me "Please tell us at least two Microsoft utilities you'd use for testing network connectivity?" Later I found out that he was looking for Ping and Traceroute commands. Funny but true. Hard to believe but there are clueless Windoze people out there who don't know any better...
They die so well...
According to the GPL, if IBM redistributes a GPL program, then section 7 of the GPL implies that IBM licenses its patents that cover that program to anybody who receives that program.
True. But that doesn't hold harmless a hypothetical third party (e.g., "me") who inadvertently incorporates an obvious-to-anybody-except-a-patent-examiner algorithm that IBM, for example, holds the patent rights to.
The GPL would require that IBM provide patent relief for code that it writes and incorporates into a GPL distribution. I don't think that permission would leak over into code written by somebody else that may contain other patented algorithms that, arguably, IBM may not have wished to license.
That should hold even if both pieces of code were in, e.g., a Linux distro available for download from IBM if a reasonable claim could be made that the offending code was included without the patent holder's knowledge or permission.
Trusted by cats.
There seems to nothing new here. Groklaw:
UPDATE: I have been reading the document itself now, and there isn't anything new on the GPL front. They asked for a declaratory judgment regarding the GPL in their earlier counterclaims. IBM is challenging SCO's copyrights. That seems to mean that they are defining this as a true copyright fight, not a contract dispute, something SCO has avoided so far. SCO will have to prove they own these copyrights now, no matter what the judge rules on SCO's Motion to Remand in the Novell matter. And they will have to show the code they claim is infringing and prove they hold copyright ownership of that code and that the copyrights they hold relate to the allegedly infringing code. Considering that they have publicly admitted that they don't own the copyrights to the allegedly infringing code, it will be interesting to see how they answer this. (emphasis added)