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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.
In sum, I think that Files For Declaratory Judgement is overrated and would recommend against it at this time.
I just wonder what took IBM so long to go for this? Was it matter of timing or did they have to wait for other judgements to clear first?
You say things that offend me and I can deal with it. Can you?
spafbnerf notes that "SCO has filed a motion for the patent infringement claim to be split into a separate case."
But, why?
I mean, if IBM gets the declaratory judgment, it'll wrap this all up.
Splitting off the patent infringement into another lawsuit will just drag this out for another year...
Oh!
Opinions on the Twiddler2 hand-held keyboard?
but wouldn't life be just a little bit too bland without our favorite enemy?
Is it just me or are the SCO lawyers trying to drag this out as long as they possibly can. Talk about the lawyers staying on the payroll a long time. They are great lawyers at keeping on the payroll withough ever actually taking this anywhere.
Evolution or ID?
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.
If the judge grants the motion then SCO effectively has no case and the whole thing is over.
Over?? Wow, could this be the end of SCO?
What will we make fun of then? Hardly IBM, since they seem to be rapidly converting themselves into good guys - this story will probably elevate them to the status of demi-godhood.
Well, back to bashing Microsoft then I suppose ...
I hear there's rumors on the Slashdots
"If the judge grants the motion then SCO effectively has no case"
Everything from 'If' to 'then' is unneeded.
For IBM's lawyers to get the licensing issues ironed out so they could use the Imperial March while slow-motion walking into the courtroom? Or the schedueling and accomidation issues for a full marching band?
I'll catch you next time TORVALDS!!!
Next Up: SCO vs US Government
Go not unto/. for advice, for you will be told both yea and nay (but have nothing to do with the question)
IBM is a decades-old giant in the American business community with a reputation to maintain, and will most assuredly have done their homework before trying to make such a bold move. This stands in contrast to SCO, which has basically bet their whole company on the outcome of these suits, and is thus willing to try just about anything, no matter how desperate, to make their case.
Hmmm... I wonder what color parachute Darl has...
Stop by my site where I write about ERP systems & more
I'm most of the way through IBM's pleading of the counterclaims. I have one word:
Wow!
This is so well laid out that even a child of 6 could understand what it is that SCO has been up to these past 12 months. When I read IBM's lawyers' work, I want to jump up and dance with glee at the utter beauty seen within.
When I read the work of SCO's lawyers or any statements made by the buffoons directing them, I want to cry. It seriously makes my head hurt, trying to wrap my brain around the utter bullshit they continue to spout.
IBM has landed a crushing blow to SCO's claims. I predict that over the remainder of this week and through next we will see SCO's stock plummet back to its true value -- less than $1.
Happy happy happy
Joy joy joy
These are intelligent, wealthy people, and they did not get that way by filing groundless lawsuits.
Perhaps you are an attorney, but you must be new to the information technology IP industry.
Finkployd
While SCO certainly looks like a despicable villan, it wasn't all that long ago that I viewed IBM in exactly the same light. So you'll have to excuse me from participating while everyone else chants "go IBM". Let's also not forget Microsoft's position in this affair, supplying the cash so that SCO could wage this legal war.
Wouldn't it be a dream world if all the lawyers spent all their employers' money suing each other and left us alone to produce world class open source software?
It seems to me that open software is the only way to break the enternal circle of despising an abusing software company, waiting until it self-destructs and promptly promoting another one into the same position.
"These are intelligent, wealthy people, and they did not get that way by filing groundless lawsuits."
Really? Since SCO (nee Caldera) stock was practically worthless before this whole debacle started, I'd say getting rich by filing a groundless lawsuit is precisely what they have done.
"I Know You Are But What Am I?"
SCOX
I shorted it at 17.96 in early January. I'm a happy camper if IBM wins this.
While we were planning on adopting Linux as our new development platform, we have not.
So you're a law firm and you were looking at a Linux development platform. Uh, yeah. Right. You dirty little troll.
Good point. I think a lot of people forget that it was IBM's actions that originated the term FUD. Even though they've seen the advantage of walking the straight and narrow, doesn't mean that they won't come back and bite the F/OSS community in the future.
Just look at how many patents IBM has. AFAIK, more than anybody else. Their IP library is huge and could probably sue any large computing company for patent violation if they so choose.
It's good that they are taking the benevolent stance here, but let's just remember that Big Blue only has its own best intentions in mind when it comes down to crush time.
Why, o why must the sky fall when I've learned to fly?
So this declaratory judgement that IBM is not infringing copyright is very tangent to the SCO vs IBM case. But of course, it would give very nice munition against the SCO out-of-court FUD, which is probably why IBM is asking for it. It might also have an impact on SCO vs google etc., I don't understand the issue well enough to judge this.
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.
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!
Correct, they are. Do you not think it possible that these intelligent wealthy people stand to become much more wealthy by spreading Linux FUD through these activities, regardless of what happens to SCO?
There has already been an alleged financial connection made between SCO and Microsoft which seems to be quite compelling. And you've just admitted first hand that your company is considering Windows 2003 over linux simply as a result of this case existing, under the assumption that SCO would be insane to do what they are doing if they didn't have a good case.
So you are right, they are intelligent. They've fooled you and your company. And they are more wealthy for it too.
Once SCO is fucking dead, we can get back to coding and building fun toys, and maybe some useful things too, with the Linux kernel, without this damn fiaSCO hanging over our heads. It would also be nice to see someone persue some sort of criminal investigation against the SCO execs, but I'm not holding my breath.
And even better would be Darl's head on a pike, but I don't think we do that sort of thing anymore, right? :)
disclaimer: no, I don't *really* want to see Mr. McBride dead, call off your snipers you crazy SOBs.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
The "the enemy of my enemy is my friend" philosephy does not work well in the long term. The "friend" has a way of comming back to bite you in the ass. Examples:
/.?
Stalin
Hussien
bin Laden
Pinochet
etc...
If you can't figure out what this has to do with the parent post, then why are you on
Any sufficiently advanced influence is indistinguishable from control.
A victory by IBM on the motion for declaratory judgment would be fantastic, but it wouldn't be the end of this lawsuit. SCO is actually not making any copyright or trade secret claims against IBM as of their most recent amended complaint (which is centered on bizarre contract interpretations); IBM is simply trying to close that avenue down for them to try and use in the future. However, this is a Good Thing for other people, because if granted it will put the kibosh on many of SCO's other claims. If IBM didn't violate any copyrights, how could AutoZone? But it's not time to break out the champagne yet -- especially until the judge actually rules on the thing.
Man...don't refer to SCO by TSG. I know it stands for The SCO Group, but you're also spoiling the good name of The Smoking Gun...
In short, I don't think groklaw is giving us a very objective view of the situation.
While this may be true, I don't think there is any objective view on this case other than reading the actual filings. And as an attorney, I would expect you to reference not the commentary but the actual filings. If you did not, then I'm surprised.
very steep discounts offered by Microsoft
This statement is the true reason you have chosen Microsoft, IMHO. If you or your company's attorney had read the various filings, (as our attorneys have) then the lawsuit(s) would not enter into the decision making process.
These are intelligent, wealthy people, and they did not get that way by filing groundless lawsuits.
As the previous poster mentioned, you are new to this, aren't you? Perhaps you should read several recent cases revolving around technology intellectual property. The Rambus case would be a good starting point. I also contend (as many others do) that SCO's management never expected to have the court proceeding last this long. I suspect that the plan was to be purchased or to have the case settle of out of court.
While you may be an attorney, I have seen and heard IBM's attorneys Cravath. There are one of the best intellectual property firms in the US. If the Cravath attorneys believe that claims are meritless, then I would tend to believe them.
If the judge grants what IBM wants, the case will be over, SCO's stock price will have created much revenue for them, as did the investment by MS, Linux will have had doubt cast upon it needlessly, and there will have been no punishment for Darl.
I wish IBM would fight them in court, win, and countersue for further damages to prove the point.
There's a Good Thing that has happened as a result of the SCO saga to date:
the Linux development commmunity is now being a lot more careful about code re-use, attribution, credits, and licensing issues in redistributed packages.
According to the filing as read by me on groklaw, SCO's attempt to impose extra licensing requirements puts them in breach of GPL section 5, which terminates their right to distribute under section 4. (ianal, could have read it completely wrong)
IBM has IP in linux that they have only licensed under GPL. If SCO has no GPL rights, they have no right to distribute the code, and they're therefore infringing IBM's copyright.
Warning: May contain nuts
These are intelligent, wealthy people, and they did not get that way by filing groundless lawsuits.
Assumes facts not in evidence.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
Here's what the [H]'s website says about it:
Work is punishment for failing to procrastinate effectively.
Hahahah!
Ok... So a lawyer with a medium-sized corporation, and obviously isn't up on technology considering this priceless line, "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."
So a lawyer who's not up on technology, gives a flying fuck enough to come to slashdot and post this, and takes a shot at groklaw while doing so...?
Maybe it's high-time to completely ditch anonymous postings, or maybe mod points just shouldn't be given out so easily.
Folks, unless they include something to give themselves some credibility, DON'T TAKE ANONYMOUSLY POSTINGS SERIOUSLY!!!
Sticking feathers up your butt does not make you a chicken - Tyler Durden
We have held off on adopting Linux...it is simply unreasonable to assume that SCO's case is completely baseless.
I'm sure it's not completely baseless. But, the premise of a flat world isn't completely baseless, either. What I've seen from SCO to prove their point has been rather sketchy. You are entitled to your own opinion and to make business decisions accordingly. And, yes, it would be a shame if cogent, pro-SCO analysis were artificially suppressed. Perhaps you could point out some of those posts.
But here's something to think about for the future.
If your company loses money by delaying a Linux migration primarily because of the SCO suit, you might want to collect together evidence leading to that decision.
Should it ever some to light that the SCO suit were frivilous and possibly motivated by some third party that stood to gain by deliberately supporting a frivilous suit, then your company and others might stand to make up some of the lost revenue for being deliberately misled as part of a broader conspiracy that might not be legal.
If you're an internal counsel for your company, pursuing redress might provide you with plenty of work.
"Provided by the management for your protection."
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'm asking, because it seems to me that Microsoft is at least as at risk of this type of lawsuit as IBM and other Linux companies. It's harder to peek inside Microsoft Windows and see what's inside than it is to peek inside Linux and see what's inside; Microsoft are also the world's most cash rich target, and if you're looking for a big payout, they're far more tempting than (say) IBM.
I appear to have a blog. Odd.
So your argument boils down to: Intelligent, rich people don't file baseless lawsuits. Let's take a look at that claim with regard to stock prices and the actions of SCO's higher ups.
Before SCO filed the lawsuit in February of 2003, the stock was trading at about $2.50. At its height the stock price climed to around $22. That's an increase of almost 9 times. The upper management of SCO has been selling their stock like mad when the stock price was skyrocketing.
We have two facts:
1. The stock price has gone up enormously.
2. The upper management has profited from this enormously by selling stock.
Your claim is that intelligence people wouldn't file baseless lawsuits, (presumably because they'd never win, and thus wouldn't profit from it). Obviously the management HAS profitted from this lawsuit even before it's gone to court. The fact that the management is selling their stock doesn't mean the lawsuit is baseless, but it certainly throws out the "intelligent people don't file baseless lawsuits" argument. The motivation is most certainly there to file baseless lawsuits since it HAS inflated the stock price to outrageous levels.
AccountKiller
Copied word for word from a comment posted in Dec. 2001, here. Look 4 comments down.
Untrue, Linus originally wrote a terminal emulator to access the university Unix box, it was after expanding this that he realised he had effectively started his own OS. It was driven by the limited nature of Minix but was not an expansion of Minix in any way, originally it was just meant to be a terminal emulator.
Close, Linus originally called it Linux on his own system but decided to rename it for release. Ari Lemmke decided the new name sucked and kept the directory on ftp.funet.fi as linux
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.
" I'm an attorney in a medium size corporation. We have held off on adopting Linux."
As a 25 year IT professional and a director at a large corporation, let me assure you that we don't call the lawyers for stuff like this.
Because the lawyers won't answer your question anyway, and they're usually just plain wrong ("The GPL, according to my understanding of the law is only valid in the state of Delaware, or other communist nations")
So they're probably using Linux, but they're not getting you involved because (a) you can't help anyway (b) you'd stop progress (c) your verbal advice is almost certainly wrong.
But on the plus side, you probably drive a nice, safe, comfortable car, have 2.2 kids, and you're a real community asset.
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.
Crivens! I di'nae noo wee could have lawyers on our side! Aye if this be truue the SCOO laywers will be getting a right kickin' in nae time!
I have some experience with the type of lawyers IBM hires as litigators in social situations - I was involved as a witness in a product conterfiting suit about ten years ago.
To make me feel at ease, here in Toronto they took me out to dinner (Shopsey's at Yonge and Front) followed by a show at Second City.
Over dinner, the conversation ranged over such fascinating topics as the low percentage of both Canadians and Americans that could name all the judges on the countries supreme court, the need for all engineers to have mandatory training in evidence collection, documenting and testifying, explanation of the correct terms to use in the deposition process, which of the firm's offices were best for aspiring new hires and how much BMWs cost in Canada.
During the show, one of the lawyers actually started taking notes, recording what he thought were inappropriately used registered statements in the show - during the intermission they debated on the differences between Canadian and US law and whether or not the useage would be legal in the US.
At the end of the evening, they were happy that they were able to "sneak in a few minutes" talking about business, as this would allow them to claim the evening expenses as well as the time spent over dinner and the show as billable hours.
All in all, I found it to be a pretty traumatic evening.
At no time did I get the feeling that these people were normal human beings. On a personal level, they can't function with normal human beings. On a professional level, they are more than competent and although they will bleed you dry.
But, if they are working for you, I'm sure they'll devote more than 100% of their waking hours to your case. So, I guess looking at it from this dimension, they are excellent friends to have.
myke
Mimetics Inc. Twitter
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'
There is more to this story than even the average computer guru knows. Most MSCE's don't even understand these things.
OH THE SHAME I fell off the wagon and use sigs again!
It is simply unreasonable to assume that drug barons have no legal basis for their activities. These are intelligent, wealthy people, and they did not get that way by risking jail.
Wise up. SCO's claims ARE totally baseless and they are relying on people like you being fooled into the old "no smoke without fire" routine to fork out your cash. It's called "Fraud" and it happens every day, sometimes it's done by idiots, and sometimes it's done by clever people but it's still fraud.
TWW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
There have been SCO supporters saying that a Utah jury would be likely to support a home team David, being "bullied" by Goliath IBM.
This isn't neccessarily reasonable. Utah is home to a _lot_ of high tech people. IBM, Novell, EBay, CA, and dozens of other big names in tech have significant workforce in Utah. The local papers may paint a pro-SCO picture, but the reality on the ground is a little different. If the newspaper reporters bothered to peek into their own server rooms, they would find a bunch of Utah geeks cheering against SCO.
That doesn't make sense to me; if anybody was hoping for a settlement due to costs involved it would have been SCO.
IBM is using it's staff lawyers, they get paid if they are in court, or they get paid if they're standing arround the water-cooler talking football; any real costs of the case are trivial like filing, and copying fees. SCO on the other hand hired external lawyers, who are paid with cash, wallpaper(sco stock) and probably a percent of the proceeds in addition to expenses which are around what $300-$600 per hour per lawyer. If anybody was going to use expenses as an inducement to settle it would hae been IBM!
SCO should be like the small dog lying on it's back, with it's belly exposed trying not to piss itself to bad while hoping the big dog doesn't rip their belly open.
Apocalypse Cancelled, Sorry, No Ticket Refunds
SCO does not have documents that "appear" to show an actual copyright transfer under any interpretation of the law. Superficially, to an observer ignorant of copyright requirements, the APA ammendment may appear just as you suggest.
What SCO does have are documents that specifically _deny_ copyright transfer, and then an ammendment that shows intent to transfer unspecified copyrights as needed. As Novell has said, copyright law requires that a copyright be transferred with specificity. There are absolutely no documents in SCO's possession that do this. According to the law, it takes more than intent to transfer a copyright.
Anyway, Novell can't just go and transfer System V copyrights because it is unclear who owns copyright on what. Is it BSD code? Is it public domain code? Is it 3rd party code? System V is a copyright minefield. This is probably why Novell explicitly did NOT transfer copyright, but attached a promise of copyright transfer based on specific needs.
Remember that Ransom Love, assuming he had System V copyrights at the time, noted that SCO couldn't open up Unix (other than ancient Unix, which was already effectively public domain); because SCO wasn't sure what 3rd party proprietary code was in there. So there was this talk of opening up System V, and back then, SCO seemed willing - but unable - to do it.
I guess that this is most likely the intent of the Novell ammendment to the APA: To only transfer a copyright once it has been cleared of any outside claims (remember USL vs. BSD in '92). Clearly Novell was open to copyright transfer to SCO, and very possibly that was the intent (over at Groklaw, PJ surmises that SCO might even have Novell witnesses willing to testify to this intent). However, as I mentioned, it takes more than intent and promise to satisfy the law.
But I agree: The SCO copyright dispute must be resolved before any declaratory judgement. My only issue is that SCO documents don't "appear" to show anything other than intent.
Two things. First, I don't think that Microsoft would want to get directly involved like that. If their rumors of involvement with SCO are true, then it's clear that someone thinks it's a better strategy to do battle through intermediaries.
Second, why would they want to pillage the kernel, even if they could? Let's ignore the technical difficulties involved in pasting code from one kernel to another kernel with a totally different architecture. A decision like that would have to be made at the highest levels, and the highest levels aren't about to admit that they have to do this in order to remain competitive.
Deep down, I think the folks running Microsoft believe in themselves. They really believe that Windows has the best integration and the lowest TCO. They really believe that they are generating products which drive economic growth and make the world a better place. They really believe that Linux is a tricycle trying to pass itself off to the business world as a Ferarri, and this is just one more storm to be weathered as they move towards Total World Domination.* So even if it were possible or legally savvy to do as you suggest, I don't believe that the folks running Microsoft would easily admit that Linux has something they don't. They especially won't admit that it has anything they cannot easily duplicate.
*Total World Domination is a registered trademark of Microsoft Corp.
You want the truthiness? You can't handle the truthiness!
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.
SCOX is at $8.40/share
tick.. tick.. tick..
From an article today on Businessweek
That's what this case is actually all about. SCOX was practically a penny-stock when this started. Darl had no idea how to get them out of that hole by innovating, so litigation gave the stockholders the stock bounce they needed and demanded.
Now, the stock is dropping again. A buddy of mine (who is a broker) told me that the bubble will burst at about $4.50. At that poing, the drop to under a dollar will be very fast. Once that happens, these cases will go away because SCO will either have to hold it's remaining money to find another way out (wow! you mean innovate and try some R & D?!?) or follow this rabbit into insolvency very quickly.
Once the stocks hit >$4, Darl's "strategy" will be considered a failure, and SCO will fire him and seek another company to buy them (for virtually nothing) or stagger on as a dying company maintaining a shrinking customer base of legacy-UNIX systems.
"Curiosity killed the cat, but for a while I was a suspect."- Steven Wright