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."

Comments

Not asking for the case to be thrown out..

[neurojab]

From the motion's text itself:

Pursuant to DUCivR 56-1(a) and Federal Rules of Civil Procedure 56 and 37(b)(2), Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") respectfully submits this cross-motion for partial summary judgment on its claim against Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") for a declaration of non-infringement with respect to IBM's Linux activities (the "Tenth Counterclaim").

A partial summary judgement and a dismissal are entirely different. A partial summary judgement does not end the case.

Interesting insights on Groklaw

[TWX]

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.

Re:What I'm trying to work out

[Anonymous Coward]

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

Re:Not put up or shut up; just shut up

[rgmoore]

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:

IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 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...

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.