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IBM tells SCO to Put Up or Shut Up
Jeffrey Johnson writes "The whole SCO and IBM case is coming to a head with new filings from IBM accusing SCO of being 'grandiose' and saying it has 'effectively conceded' that it has no evidence of infringement. It asks for evidence to be produced or the whole case thrown out. According to experts this makes it make-or-break: either SCO has to outline exactly what the issues are with Linux or the whole sorry affair is over."
Does anyone really think SCO (leally) stands a chance?
Hope be with ye,
Cyan
A partial summary judgement and a dismissal are entirely different. A partial summary judgement does not end the case.
Reading throught many of the recent Groklaw stories and posts, I've found some of the legal insights intriguing. IBM's lawyers did a wonderful job of giving Darl and Company plenty of time and opportunity to paint themselves into a corner.
IBM has documented SCOX's failure on two different orders to produce their evidence in discovery. They have also brought forth conflicting statements made by various lawyers and corporate types, the lawyers saying, "We have no further evidence" with the officers saying, "We will find more evidence as things go along". Even more damaging, SCO's filing lawsuits against so many other entities has caused other lawsuits to depend on the conclusion of this one, so there suddenly is no way for them to not go ahead.
I just hope that the SEC seeks criminal cases against SCOX board members over this one. That would do everyone well for the long term.
Do not look into laser with remaining eye.
In fact, IBM is saying that as SCO hasn't already presented evidence, even after being ordered twice by the judge, they shouldn't be alowed to present any now ... like, you had time to put up, now just shut up. Its even worst after the executives kept talking trash (read: we have all the evidence, millions of lines of code, rockets scientist checking the code, and a long etcetera).
No, it just asks for the Court to rule on Counterclaim 10. IBM has not asked for the case to be thrown out, nor have they suggested that SCOX produce more evidence.
They do point out that they have been asking for the detailed claims for almost a year now, and that the Court itself has twice had to order SCOX to provide them. Twice, SCOX has sworn to the Court that it has complied with those orders.
At this point, IBM is in the mode of saying that SCOX has had more than enough opportunity to come up with some adjudicable claims, and that the case should move forward with what is (or isn't) on the table.
In other words, read the frippin' linked documents before posting this stuff on the front page.
Lacking <sarcasm> tags,
Site's running slow, so here's the article text
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IBM slams 'grandiose' SCO, asks for whole farce to be called off
Latest court filings may be make or break for controversial Linux copyright case.
By Robert McMillan, IDG News Service
IBM has filed new documents in its legal dispute with the SCO Group, accusing SCO of having no evidence to back up its copyright infringement claims and asking the judge to throw a major component of the case out of court.
"For more than a year, SCO has made far-reaching claims about its right to preclude IBM's (and everyone else's) Linux activities," wrote IBM in documents filed with the District Court for Utah. "Despite SCO's grandiose descriptions of its alleged evidence of IBM's infringement, SCO now effectively concedes that it has none."
SCO has been unable to provide any evidence of copyright infringement during the discovery phase of the trial and the court should therefore render a summary judgement against SCO, IBM's filings say.
In March 2003, SCO filed a multibillion dollar lawsuit against IBM, accusing it of violating SCO's Unix intellectual property. SCO accused IBM of unfair competition, breach of contract, and of violating SCO's trade secrets. In late February this year, it dropped the trade secret allegations in the case, but added a claim that IBM had violated SCO's Unix copyright.
A few weeks after the trade secret claims were dropped, IBM sought a declaratory judgement in the case, a move that opened the possibility of a quick ruling against SCO. Lawyers following the dispute saw this as a sign of growing confidence on IBM's part.
By seeking a declaratory judgement, IBM was showing that it had not found any evidence to back up SCO's claims, said Jeff Norman, an intellectual property partner with the Chicago law firm Kirkland Ellis. Because the copyright claims form the crux of SCO's case, this week's filing for a summary judgement creates the possibility that the dispute could essentially be over in a matter of months, he said.
"IBM is saying to SCO: 'As a matter of law you're playing this so weak that no reasonable jury could find in your favor'," Norman said. "They must think that they have a pretty good chance of winning the motion, or you wouldn't bring it."
This week's filings could also force SCO to provide more compelling evidence of copyright violations, said David Byer, a partner with the patent and intellectual property group at Boston's Testa, Hurwitz & Thibeault. "It is another way to try to focus the court on the evidentiary questions that have been battled about since day one, meaning who is going to produce what when," he said. "SCO needs to respond to this. If they don't respond appropriately, the case can get thrown out."
SCO is likely to produce more evidence to support its claims, said Blake Stowell, an SCO spokesman. On 19 April, IBM turned over 232 versions of its AIX and Dynix Unix source code as well as internal documents and memos from executives, he said. "Our lawyers are still going through much of the evidence IBM turned over as part of the discovery process. I'm confident that there is still other evidence that will come forward in order for us to be able to prove those claims," Stowell said.
Complicating matters for SCO is the fact that Linux vendor Novell also claims to own copyright to the Unix source code. SCO has sued Novell for slander in connection with this claim.
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Hope be with ye,
Cyan
I mean, nobody references IBM (I-B-M) as "ibbbb'mmmm" or SGI as "sss'gee" or "sss'guy."
Or NASA as /nasa/.
I think we've been over this before. SCO is pronounced /skoh/ by SCO and everyone in the real world. Just like NASA, the acronym is readable as a word, and is therefore pronounced as one.
The summary judgement is being requested for the 10th ammended counter claim. This is claim from IBM stating that its Linux activities don't violate Unix copyrights. If this is found to be the case by the judge, it does several things:
1) It establishes that IBM hasn't violated Unix copyrights.
2) It establishes that the behavior of using Linux doesn't violate Unix copyrights, since this is a behavior that IBM has indulged in.
3) It establishes that redistributing Linux doesn't violate Unix copyrights, since this is a behavior that IBM has indulged in.
4) It allows the Redhat case to move forward, since the copyright issues in the IBM case were the reason that the judge stayed that case.
5) It establishes that their is no copyrighted Unix code in Linux, which will help Redhat and Auto Zone.
DanW
Well the difference this time is that IBM is no longer asking for the code. Big Blue is telling the judge that SCO has nothing, nada, zip. After several requests SCO has still produced nothing. So IBM is asking the judge to rule that IBM did NOT dump any of SCO's valuable code into Linux.
Well, someone, somewhere in this thread probably has already said this. Mark me Redundant
If the judge had given SCO, say, one week to provide the evidence, and then thrown the case out -- SCO would appeal. And the appeals court would give SCO a new hearing.
The judge has given SCO multiple, generous chances to cough up some evidence. Now that it has been a year, the judge can entertain a motion to toss out the parts of the case for which no evidence has been offered.
SCO will appeal if this happens. However, if IBM and the judge have crossed all their t's and dotted all their i's, the appeals court will refuse SCO's appeal.
Only once the appeal has been made and rejected is it truly over!
The wheels of law grind slowly, but they do get the grinding done eventually.
steveha
lf(1): it's like ls(1) but sorts filenames by extension, tersely
This is unlkely to result in outright dismissal. But IBM is also moving, alternatively, for "foreclosure of factual defenses pursuant to discovery rule 37(b)(2)," That's the real "put up or shut up" motion. IBM is saying that SCO has had enough opportunities, after two court orders, to come up with specific evidence of copyright infringement. So SCO should now be barred from submitting any new evidence of infringement in future.
They'll probably get that. They cite all the embarassing background material, including press statements by SCO and an .MP3 of Darl mouthing off. IBM uses the words "fear, uncertainty and doubt" twice in its latest court filings. But what really matters is that two tightly focused discovery orders have failed to elicit evidence of copyright infringement from SCO. That's so unusual that a ruling by the judge that SCO has had its chance isn't unreasonable.
An MSJ (Motion for Summary Judgement) is filed by one party in civil suits more often than not. The idea that IBM would not have filed it unless they were confident has no merit.
From here, SCO will file an argument against MSJ, and the judge will rule according to a timeline specified by local rules. (Some districts do monthly motion hearings, some deal with them as they come).
At this point, since discovery is over, SCO will not be allowed to submit further evidence, only to argue what they have shown is enough to continue.
Typically, the plaintiff in a case like this will hold back evidence until just before trial. It's of course unethical to do so, but they will argue that it was not discovered until then. In civil court, unlike criminal court, last minute evidence is more often than not allowed. Judges are allowed to allow any evidence they see fit that will help bring the truth to light.
Expect this motion to be denied, and expect IBM to file for an extension to review the mass amounts of last minute evidence that SCO brought to the table. Also expect that there will be such a large amount of last minute evidence brought to the table, that a small amount of patently false information will get through. Frequently, you'll see things like e-mails without full header information, and other technically unsound evidence that will be contested at trial, but will allude to guilt.
When you pile a bunch of allusions together in civil court, you have a shot at winning. You don't have to prove beyond a reasonable doubt, you only have to prove a likelyhood that the crime or tort has occured.
If you sign up for a pacer account, you can get access to the court documents for 4 cents a page. I don't know if this filing is online yet or not.
Microsoft can very easily be a normal and respected company. It's hard to imagine, but it's possible. It's very possible for MS to exist largely as it it nowadays. However, it would require a shift in income from licensing to support. Here's how:
However, I fear most of that is wishful thinking. Ah well, I'd give it a shot if given the oppurtunity.
Hate me!
If IBM wins this motion, neither SCO nor anyone who buys their rights to UNIX will be able to sue for copyright violations in Linux.
Not exactly, it means that IBM can't be sued for putting SCO's IP into Linux.
Other companies may be sued for doing this, or IBM may be sued by a different litigant for leaking their IP.
This is only regarding IBM's (alleged) improper contributions to Linux. Check Groklaw for all the details and the plain english translations...
And it looks like IBM has tacked on a legal bill to their motion for summary judgement.
But Motions for Summary Judgment aren't trivial to obtain. The standard is quite high. The moving party bears the burden to suggest the absence of any triable question of material fact and entitlement to relief as a matter of law.
After that, the burden shifts to the non-moving party to introduce record evidence that raises a genuine question of material fact. More than a bare minimum showing is necessary, but not much at all. Every reasonable inference goes to the non-moving party.
SCO will have to put up something at last, but they don't need to show their entire hand to survive this motion, and very little is required for them to survive. Don't be surprised to feel a bit queasy as you see little more than a hand-wave or two from SCO with pointers to record evidence, and then the judge saying, well, that's a question for the fact-finder to decide in a technical case.
Yes, IBM is saying that a Summary Judgment should be granted on their Tenth Counterclaim because SCO has not shown, and should no longer be allowed to show, any evidence. IBM is effectively saying that SCO should no longer be allowed to show any more evidence because SCO has sworn by affidavit to the court that they have already shown all their evidence. Since the evidence that SCO has provided doesn't show any copyright violations on IBM's part then a Summary Judgment should be issued in favor of IBM. From page 30 of IBM's memorandum:
;)
SCO has advised the court that it has provided complete and detailed responses to the court's orders. If that is true, then summary judgement is appropriate because SCO has no evidence of IBM's alleged infringement (as SCO has adduced none). If it is not true, then summary judgement is appropriate because SCO has not only defied two orders of the Court, but it has also falsely certified that it has provided complete, detailed and thorough answers to IBM's interrogatories and the Court's orders.
It's not a "put up or shut up." IBM's saying that even if SCO's right, they're still wrong.
infested with jello like fishes no melotron wishes
No. The idea behind a motion for summary judgment is that the judge decides that there is no substantive factual dispute, so he can rule on who is right and wrong as a matter of law. Once the judge makes a summary judgment, the matter is treated just as though it had been decided by a jury. If IBM wins this motion (and any possible appeals) it is final. Somebody who buys SCO's rights in their bankruptcy liquidation won't be able to turn around and sue IBM over the same point, because it will already have been decided.
Equally important, IBM is asking for a ruling covering Linux as a whole. IBM is claiming that:
IOW, they're not only not guilty of violating any SysV copyrights from having contributed code to Linux, but they're not guilty from simply copying it. That would only be true if there were no code over which SCO has a claim, so an IBM victory will have the side effect of protecting anyone else from copyright infringement claims.
There's no point in questioning authority if you aren't going to listen to the answers.
They are going to literally grind SCO's bones to make their bread.
No, you dumb fuck, they're not going to LITERALLY grind SCO's bones to make their bread.
This is why the GPL is so beautiful, it's one of the most elegant hacks ever made.
Eben Moglen put it this way when he spoke at Harvard a while back...
Read the whole speach at Groklaw.
1956: A consent decree is signed in the US, specifying that IBM shall not compete in the second hand computer market and allow punched cards (etc) to be manufactured by third parties. Is this relevant to the discussion? No!
1984: A consent decree is signed with the EC (European Commission), that specifies that Interfaces will be updated and that IBM will announce everything within a short timeframe from initial announcement also in the EC. Is this relevant to the discussion? No.
2000: A consent decree is signed stipulating that IBM will make a volontary contribution to the FCC of $70.000 regarding a minor error (which FCC agrees is minor) in the handling of radio licenses. Is this relevant? No.
So, let us keep it relevant. It is also well known that IBM (during anti-trust litigation) volontary imposed rules to prevent any recurrance of behaviour that would have been or could have been in violation of anti-trust laws in the US.
I am the former security architect for AIX, so I believe I know some of the issues as well. But let us be generous: you are correct and I am wrong, IBM has signed consent decrees, but none that has any bearing or relevance on this discussion.
Roland Buresund
-- Roland Buresund MBA, MCMI, CISSP