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IBM Files for Partial Summary Judgement vs SCO
Armchair Dissident writes "The Register is reporting that IBM has filed for partial summary judgement against SCO. Groklaw also has the story, and is saying that SCO was still offering the disputed code for download as recently as August 4 2004. If this is true, then - according to Groklaw - SCO's case must surely be scuppered. Again."
Ah, "to scupper":
v. 2. put in a dangerous, disadvantageous, or difficult position
Yep, that's it.
If they offered their disputed code for download as part of SCO Linux, then they put it under the GPL themselves.
Their get-out for this is 'we didn't know our code was in Linux!', which might have been a case for them... if they didn't carry on making Linux available after they supposedly discovered their code in it.
By leaving SCO Linux available for download under the GPL after they knew their alleged property was in it, they've GPL'd that property. Hence, they're stuffed.
Real Daleks don't climb stairs - they level the building.
IBM goes on to argue that old agreements with AT&T and expert witnesses make it clear that IBM was allowed to do what it liked with "derivative works." It would have been bad business for IBM to agree to broad terms banning it from controlling "derivative works," it says.
If the AT&T contracts show the approval of derivative works, any AIX code IBM developed and then added to Linux would definitely be out of scope.
I think someone is SCO-rewed on this one.
I don't think it's necessarily the case that the code becomes GPL'd by default - although that argument could be made - just that by continuing to make it available, other people can have a reasonable expection that the code is OK. It's called estoppel, and it basically means that their past behaviour would stop them from suing people.
"Elmo knows where you live!" - The Simpsons
And they did offer it for download for a LONG time. Many people, myself included, were posting links to the kernel source RPM on their ftp site for the first 6 months or so of the suits, here on Slashdot. I have a downloaded copy of it.
It was the 2.4.13 kernel with some patches, so if AND ONLY IF, SCO has a problem with code that was added after 2.4.13, can they really mount a case that that code was not put under the GPL by SCO after the suit began.
IBM files motion. SCO gets a chance to file a reply trying to debunk IBM's motion. IBM gets to reply to the reply. Then a hearing gets set. Then the judge rules on the motion.
I think best case you are looking at a month or two, assuming nothing else gets done.
It's going to be a while, I think:
So, it may be a while. I suspect IBM has other motions ready to gut the rest of SCOs claims, and these will need to be resolved. The only way I can see this resolved quickly is if SCO just folds, and that's IMO unlikely - it would expose them to massive shareholder lawsuits & probably an SEC inquiry.
-Phil
IANAL, I just read Groklaw
Not to dis the Register, with their brief writeup dated today, but Groklaw had the story yesterday morning, including comprehensive analysis. To write that Groklaw "also has the story" is off the mark. Groklaw is, as usual, the preeminent primary source.
You may find some information on possible reasons here
Well the biggest part was the trade secrets claims. SCO rewrote their claims, dropping the pretense that SysV has any trade secrets, instead making the primary issue that of contract infringement.
IBM has two motions for partial summary judgement in the queue. The first is for a declaration of copyright non-infringement. If this passes (to be evaluated in September), then the courts will declare Linux to be free from copyright issues from SCO. The second, this recent one, is for partial summary judgement against SCO's contract claims, which is what saves IBM.
Linux wants the first. A lot. It effectively kills SCO's legal threat against Linux. The latter is what nails the most important part of SCO's case vs. IBM, and probably kills SCO in the process.
If IBM added code to linux for which they didn't own the copyright - then its not GPL'ed even if the original author distrubutes the code that IBM added to to linux without proper copyrights. I agree they own the copyright to the stuff they wrote - hence the word "independent" in the memorandum.
SCO is wrong as a matter of law, and IBM is entitled to partial summary judgment on SCO's contract claims, for at least two independent reasons.
No Sig for you.!
I agree its still going to be a while but I think we can make a better guess than that.
The grandparent post stipulated that the judge wouldn't give SCO any more wiggle room, which I don't believe is all that far-fetched. Here, I take wiggle room as "we need more discovery", as opposed to "my nephews sick I need more time to file". The latter is what I would characterize as normal operations, the first is wiggling.
IBM filed their first PSJ on or about May 21st. The initial oral argument was scheduled for Aug. 4th but this has been moved to Sept. 14th. Presuming a couple of days for the judge to ponder and that decision would be handed down around Sept.16th. So, let's call it 3 and 1/2 months. Thus, from the date of Friday's filing(Aug.13th) that would place a resolution on the contract question by or about Dec.1st or so, call it Dec.7th for good measure.
Now, presuming further that both PSJ's go in IBM's favor, there would be little left to argue as the rest of SCO's case hinges entirely on their claims in the contract claims. I will guess that IBM will file a few more of these PSJ motions, basing them on the two already in play. So I will guess that by mid-May of next year almost all of SCO's case will have been dismembered. Effectively making "this" over. There will of course be the inevitable clean-up which will occur because IBM has all their counter-claims and I guarantee they are not going to let those drop. So sometime around November of next year I suspect SCO will declare bankruptcy or negotiate that IBM take over SCO operations with no money changing hands.
Whether IBM desires to persue old Darl and his cronies for some malfeasance I can't guess in which case the "whole thing" won't be over for some time, but all the nasty stuff will be over by May or June of next year.
IANAL yadda yadda yadda...
Sure information wants to be free, but how much are you willing to pay for the packaging?
it means they have violated the copyrights of all the other kernel developers, because nothing else gives them the right to distribute it.
The stock is no longer being shorted as it's below $5, and it considered a "penny stock"
Well, they claim it is their code, it is downloadable from their website, as their product "SCO Linux", under the GPL. If that doesn't make the code in question released under the GPL, I don't know what does.
It doesn't. Not much does, in fact. The only point that can be made is that, by offering the Linux code (the GPL'd stuff) along with their own code (their (alleged) kernel code, which we assume they don't wish to GPL), they are infringing on the copyright of the non-SCO code, by distributing it without a license!
Really, the GPL can't force anyone to license their code in any way. The only thing it can do is to allow people to distribute GPL'd code, if they follow the rules. No rule-following, no distributy-allowy. Simple. And yet misunderstood so often, on both sides of the FOSS debates...
You folks are talking copyright here, and IBM's hearing on Partial Summary Judgement on this issue is next month (they filed this motion some time ago).
This story is about IBM moving for PSJ on the contract claims, basically stating (among other things) that the court should be able to rule on whether IBM is permitted contribute their in-house code into Linux as per the AT&T contract. This is actually quite a bit worse for SCO than just a copyright PSJ because this will hurt many other aspects of their case.
IANAL, etc.
LedgerSMB: Open source Accounting/ERP
Remember, since SCO was also alleging that the terms of the GPL itself were not valid, the fact that they continued to distribute it under the terms of the GPL was meaingless.
What this does *NOT* do, and they are right to assume this, is automatically make the GPL apply to their code, since there was no obvious intent to do so. If the GPL is not valid then absolutely nobody, including SCO, has permission to distribute Linux without permission from the copyright holders on the code. Does SCO have this permission outside of the terms of GPL? No? Then it makes SCO guilty of continued and willfull copyright infringement.
File under 'M' for 'Manic ranting'
And just to be clear... the September judgement is what RedHat's case is waiting on to proceed, right? So once IBM gets that, RedHat gets to start looking for damages?
Oh, I agree that they are in no way forced to distribute their code under the GPL.
The thing is, they do distribute their code under the GPL.
I believe posters are recognized by their sig. So I made one.
Totally wrong. Instead, IBM is referring to the fact that Novell only sold some Unix rights to Old SCO, and that among the rights they retained was the right to direct SCO to "amend, supplement, modify or waive any rights under, or assign any rights to, any System V License". And, in the event that SCO refused, to do so themselves.
More broadly, SCO did not buy the existing System V licensing business from Novell. They only bought the right to sell new Unix licenses, and also to handle administrative duties on existing licenses in exchange for a 5% commission. IBM's Unix license is still with Novell, not SCO. SCO acts as a go-between on Novell's behalf, but that's the extent of their role.
No, the GPL can't force them to do anything. That's the whole point. They were not forced. Grant that they are correct for a moment - that the Linux kernel includes code to which they hold the copyright. They certainly haven't proven this, but we'll give them the benefit of the doubt. Assuming this is true, they knew that the kernel in their distribution contained their own propreitary code. They knew that this code was distributed under the GPL. They did nothing to stop distributing the code. Of their own free will, without force from anyone, even after knowing that their proprietary code was in the kernel, they voluntarily made it available for download under the GPL.
At a minimum, what makes code released under the GPL is when the owner of the code knowingly distributes that code under the GPL. SCO has done precisely that.
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
Didn't you read? They're planning to raise their prices.
Anyhow, I submitted something just like this, only with about a dozen links to more information (sadly, I don't have all of them here now), so perhaps I can explain more --
This motion follows IBM's motion to strike Sontag's declaration as incompetant (he doesn't know jack about IBM's internal source controls, but he made a number of wild guesses and swore to them under oath), as well as IBM's movement for a declaration of non-infringement concerning their Linux activities. It is ironic on the last part that SCO doesn't want to let them have one, and it says at the same time that they're not arguing that IBM has infringed on their copyrights now.
I'd link those motions, but I don't have time. They can all be found on Groklaw's legal documents page. Just be sure you're looking at the SCO vs. IBM part, and that you start at the bottom & scroll up--both SCO's complaint & IBM's counter-claims have changed over time, and you want the most recent version.
If they were to grant all of IBM's motions, they would be enough to rend pretty much all Linux-related issues from this case, and would leave SCO with almost nothing that could stand on its own and SCO would still face the counter-claims.
Of course, the judge has to be really strict on granting summary judgements. There have to be no material (relevant) issues of fact to decide--the evidence has to be so one-sided that no rational trier of fact could possibly decide for SCO on any of the issues the judge decides. This is important because the judge rules on the law, while the jury rules on the facts in any jury trial. If you can't guess from that, a summary judgement is where the judge gets to decide an issue early because there are no material issues of fact for a jury to decide.
In other words, though IBM's motions are well-argued, they face a *very* high standard of law here. Please note that while Enderle has said that he would decide for SCO, that's irrelevant because the trier of fact would have to be rational, and logic is not Enderle's strong suit.
Other types of accounts can short stocks much more liberally than you.
>In my opinion, a company's distribution of source
>for GPLed products for which it released versions
>should NOT be held to void its IP claims
If a company puts code under GPL, it does not lose IP rights. They can still sue anyone who does not respect the GPL (under which the code is licensed).
If they stop distributing the code they do not lose any "gpl rights". And they can always distribute "their" code in any license they see fit. However, most the code in question is really IBM's code, so such a move would propably ignite a furious counter-attack.
>Their IP is already exposed
It is not their IP. The court will have to decide that, since it still is IBM's IP unless proven differently. However *if* they really felt it is their ip they should/would distribute the code under the license they see fit. This is a weak point in their argument. See, if that is the case, and it is their IP why did they choose GPL to distribute it?
>the maintainers of the GPL might want to add a
>bit of verbage to clarify this issue
There is no issue here: if stolen IP is inserted in GPL code, GPL is very clear about it. Only this is not stolen IP and the whole case is not about that.
If what you describe ever happens, the company in question will simply distribute their code with their choice of license and GPL code with GPL license.
Washington bullets will simply be known as the "Bulle
And of course we need to come back to the central issue. The code in question is NOT sco's. They don't own the copyrights for JFS, NUMA, RCU, etc. They only claim (in the most confusing possible way) to have authority over IBM via its licensing so they can dictate what IBM can and can't do with its OWN code, they they wrote, and have copyright of. Anything else that comes out of McBride's mouth just sounds like that gurgling sound that toilets make when you flush. I subscribe to the JFS mailing list, and have for quite some time. Even a casual reader would pick up on the fact that the JFS in Linux is not from the same lineage as the JFS in AIX.
Grant that they are correct for a moment - that the Linux kernel includes code to which they hold the copyright
Don't grant that. They've been saying right from day one that this isn't about copyright. It can't be. They don't hold any copyright to the code in question, and Novell has cast doubt as to weather they own copyright to Unix even.
IBM hasn't lasted over 100 years. It was founded in 1924.
Depends on where you start counting. IBM became IBM in 1924, but that was a name change, not the start of the company. The Computing-Tabulating-Recording company was formed in 1911, which still isn't quite 100 years, but pretty close. But C-T-R was actually a consolidation of some other companies, among them International Time Recording Company, formed in 1900. So if you count from ITR, it's slightly over 100 years. But ITR actually acquired much of its technology buy buying some older companies, like Dey Time Register Company, founded in 1889.
>The thing is, they do distribute their code under
>the GPL.
I believe they don't distribute any Sys V code under the GPL, because this is NO Sys V code in Linux.
Anyone notice how IBM keeps saying in filing & court that to date, SCO hasn't provided a single line of infringeing code.
Or as SCO says, referenced in this latest filing by IBM:
"IBM keeps insisting on something that is not part of SCO's claims, so it should come as no surprise that files or lines of code in System V have not been identified"