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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."
According to Groklaw, this is nowhere near the end of the case, since SCO still has the opportunity to rebut IBM's motion, IBM then can refute the rebuttal, etc. etc. But it may be the beginning of the end.
The previous "scuppered again" reports from Groklaw (and other sources) are the results of developments in other trials as well as independent investigations (outside the courtroom) into the merits of SCO's claims. Based on the linux community's technical consensus (again, outside of any trial) that SCO's claims are meritless, I think we've known SCO's case was doomed all along. We're still waiting for it to play out in the courts, though, which is where it counts.
I wonder how long it will take for SCO to trow in the towel. Not only that. I wonder what will happen AFTER they trow in the towel.
My best guess is that they will drop all charges and as a result the other companies will drop their charges.
The end result will be that our friend Darl has made a LOT of FUD and a lot of money. He has truly found the way to 3. Profit.
Don't fight for your country, if your country does not fight for you.
Assuming for the sake of argument that SCO really did own the rights to the code, if they did not wish to distribute the code under the GPL, they would necessarily have to cease distributing the code when it was discovered.
SCO's continued knowing distribution of the code under the GPL should clearly indicate their acceptance and intention to do so.
It's a bit disingenuous to say, "The Register is reporting..." and "Groklaw also has the story," when in fact Groklaw had the scoop on Monday.
They are saying that IBM have taken some of SCO's code and then ( somehow ) been inspired by that to write AIX etc which they then used to improve Linux.
By selling or giving away there own version of Linux which incorporates the improvements made by IBM SCO are saying that on the one hand IBM has ruined there business by improving Linux but on the other hand that they are happy to sell, give away and work with the version of Linux which has ruined there business and that I think is a slightly ridiculous point of view to take.
Actually, this is not the argument given in the Request for Partial Summary Judgement (and yes, I read the whole thing, I was bored last night).
The argument given by IBM is that SCO cannot on the one hand sue IBM for breach of contract and damage done by said breach and on the other hand knowingly continue to offer (and through advertising, tout the benefits of) the "offending" code in question.
The key word here is knowingly. IBM claims (and I think claims correctly), that since the code (Kernel 2.4) is still available on their website after they knew about it, SCO waives their right to sue for breach of contract on the code in question.
If the judge agrees, then game over for SCO.
As IBM's motion clearly points out it's called "waiver". By knowingly distributing the code under the GPL, SCO has waived all claims against IBM(and anyone else) for any code that might be in Linux illegally(I say might because I think the whole idea is a sham).
Anyway, basically SCO can't sue someone else for the same action they are in fact performing.
Sure information wants to be free, but how much are you willing to pay for the packaging?
How many other companies with small caps will line up to start suing IBM?
If IBM earns the reputation as a company that will settle for a few million instead of fight, they will find themselves surrounded by mosquitoes!
Look at Microsoft, they get sued all the time. MS is probably spending more on lawsuit settlements each year than they spend on keeping the XBox division or the Great Planes division afloat.
IBM hasn't lasted over 100 years by giving money away to settle frivolous lawsuits. They know the long term consequences.
the technical term for being -1 for lawsuits, is a 'vexatious litigant'.
H.ere in Britian if you waste too much of the court's time, the court can declare you to be a vexatious litigant, and you lose the right to file suits. This would do wonders for SCO's share price!
Hmm, I don't know if we have such a thing in the States. Really I doubt it, a well applied ruling like that would help clear the civil courts of what we call "frivilious litigation". However, something like this could also be abused by using it to block unpopular causes or people who still have legitimate cases (i.e. civil rights lawyers in the 50's and 60's). So as long as you can trust your judiciary it could be useful.
On a completely different note, does anyone else think that "Vexatious Litigant" should be a class in the mock-RPG ProgressQuest?:)
"To say that code included in SCO's Linux distribution becomes automatically GPLed is a red herring. If SCO was unaware of the presence of their code in the Linux kernel at the time, then the action was not voluntary."
Assuming that it is a defence to say that you haven't checked the exact code you are releasing under a specific licence all that carefully and so didn't realise it was in fact derived from your own proprietary code then fair enough I agree with you.
However now that they do know what the infringing code is ( as we know their MIT Deep Divers have identified millions of lines of code ) the fact they are still choosing to release it under the GPL means that they are know, knowingly, releasing that specific infringing code under the GPL which then undermines their case entirely.
Your arguments about ditching the GPL in favour of a "free" licence are just nonsense. People who use the GPL do so because they don't want their work just hoovered up by anyone without them giving anything back to the original creator or the community at large - that's why they choose the GPL, because they like the protections it offers them.
A lot of people/companies who would love to just use anybodies work they liked without the creator getting anything would love people not to use the GPL but that is never going to convince me the GPL is a "bad viral nastiness".
Buying them would merely encourage other dying companies to sue IBM. Better to beat them down into the dirt: even if it costs more in the short term, it will save money in the long term.
Finally, it would seem rationality is coming to the forefront. Now lets see if the legal system has any sanity and quashes this SCO garbage already. We've all wasted far too much time and resources on the IP leeches already.
At least maybe the mess will help force some changes on the USPTO. (No, I don't care how overworked you are. If you can't do the job right, then let the backlog build up until someone ponies up the resources to deal with the backlog.)
I do not fail; I succeed at finding out what does not work.
Why do people keep saying this?
The company is already way overvalued! Why let all the execs and stockholders get lots of money for a company that has been nothing more than a dishonest bully?
Anyone who is suggesting IBM buy them is completely missing the point. That's what they want!
Linus can't change the Linux license even if he wanted to. All of the 2-3000 contributors would have to agree to that or have their code written out. That is quite simply unrealistic and impossible.
Hope this helps.
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 to any of its proprietary code inserted by others - even if it continues to distribute versions containing the code. I see this as both a matter of law, derived from the GPL's own terms, and as a matter of good policy for GPL promotion.
The GPL explicitly claims that it does NOT purport to grant a license to proprietary code improperly inserted into a GPLed distribution by someone who does not have the necessary rights to place the code under GPL. But it does demand that any person (or company) who distributes object containing GPLed code must make the source available, and if even one copy goes out without the source attached the only permissible way to do that (so it can reach a repurchaser of the oject) is to make the source available generally for a minimum time, as by a web or FTP site.
So a company who distributes a modification of a GPLed project may be required to distribute the code for a time, under penalty of loss of the right to copy and/or distribute GPLed code forever. If the company THEN discovers someone ELSE has included their pride-and-joy in the base distribution, they're in a catch-22:
- If they stop distributing the source, they lose GPL rights. This could be a BIG cost.
- If they DON'T stop, AND this puts their proprietary code under GPL, they suffer the loss of their IP.
So the doctrine of estopple should not apply: Their IP is already exposed - taking down their distribution won't significantly mitigate that damage, since it will be available elsewhere on the net. But taking it down WILL generate other costs for them.
And since the GPL doesn't claim to grant rights to code improperly inserted, it can be argued that the improperly inserted proprietary code is not under it, until such time as the owners deliberately, with intent, insert it themselves - despite their continued distribution of the source improperly containing it, in order to meet their GPL obligations.
Now the GPL advocates might want to argue that, nevertheless, the victim of such theft must now either free the code or stop distributing and lose all GPL rights. But IMHO that's a bad idea.
Such a position would greatly hamper the adoption of the GPL codebase by companies with code they wish to keep proprietary - because unknowing propagation of code stolen from them within a large software release (such as a Linux distribution) would leave them on the above cleft stick: Give away your family jewels, or suddenly shut down all your GPL business-model activity.
Of course IBM's lawyers had to try making this assertion. But for the future of the GPL I hope that either the case is decided without a ruling on this issue or (better yet) IBM's claim that this frees the (allegedly) SCO code is explicitly rejected.
(Meanwhile, perhaps the maintainers of the GPL might want to add a bit of verbage to clarify this issue to a future version?)
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
What's really interesting about all this SCO nonsense is that thier case seems to share a philosophy I see often on /. concerning intellectual property:
1) An overbroad definition of derivative works and an understanding that I build part A. You build parts B, C, and D on part A. All your parts are belong to us, thank you for playing.
2) Somehow that I worked on your code in the pase prevents me from creating new simmilar code in the future. If you do create it, I own it.
All of these ideas are flawed in that they assume that intellectual property is like a rental property where all your improvements belong to the landlord.
-- $G
IBM has a separate counterclaim re GPL and violation of IBM's copyrights.
Their point in this request for summary judgement has nothing to do with GPL. All they are saying is that SCO can't expect IBM to keep it (JFS etc.) confidential while they (SCO) continue to publish it. As SCO has stated over and over, this particular claim has nothing to do with copyright, and therefore nothing to do with GPL. It has to do with confidentiality.
While I agree with you in spirit, I can't help but think that what you are suggesting would be far worse than the problem it proports to solve. If someone knowingly distributes something they wrote under the GPL, then they have done just that. No waiting for an indefinite period and saying "April fools!" or "Gosh, we knew our code was in the stuff we were distributing under the GPL, but we didn't intend it" or shouting "Psyche!" at the world.
In the circumstance you discribe, there must have been some other version of the software, distributed under some other terms, before it was ever added to the GPL'd aglomeration. What they should do is strip their code out, and distribute the GPL'd mass minus their code under the GPL, and offer their original product under whatever licence they wish.
They don't have to "stop all their GPL activities" but they shouldn't knowingly distribute something under the GPL (or, for that matter, under any licence) if they don't intend to honour its terms.
-- MarkusQ
That logical critique of Enderle's keynote belongs in a text-book. It is systematic and devastating. Nothing I can say will do it justice, so I'll just recommend that Slashdot readers interested in logical argument construction (and deconstruction) read the piece. It's long, but well worth it.
First, SCO says that IBM stole millions of lines of code and put into Linux. IBM has asked SCO to identify the lines many times. A judge has ordered SCO to do so twice. SCO has not done so to this date.
Instead, they keep changing their claim. Then the case became about "trade secrets" IBM stole. IBM has asked SCO to identify what trade secrets or what code are invovled with these trade secrets.
SCO no longer says its about trade secrets. Now, it's about code that IBM contributed from AIX and Dynix into Linux. SCO argument is that since they own System V, according to the licensing agreements between AT&T and IBM, they own all dervatives and anything else IBM creates. Thus IBM cannot contribute code to Linux because SCO owns it. SCO does not identify all the lines but does identify the modules that contains this derivative code (RCU, SMP, etc). Because IBM violated this agreement, SCO has the right to terminate IBM's license.
Using an expert from MIT, IBM says that all the modules that SCO mentions contains no derivative code but is original.
IBM mentions Amendment X. Back in 1996, in an agreement (Amendment X) with Novell and old SCO, IBM acquired a "irrevocable, fully paid-up, perpertual" license to System V for the sum of $10 million. Novell eventually sold some rights to SCO but kept enforcement rights.
IBM then brings out everyone and their dog that participated on the original license from AT&T, IBM, and Sequent. Everyone involved agree that AT&T does not and never owned any derivatives of System V created by their licensees or by third parties for their licensees. All parties (especially AT&T) emphasize that any original code created by their licensees and not derivative were never claimed by AT&T. Since AT&T never claimed it, SCO cannot either. AT&T reps and former counsel disagree with SCO current interpretation of the license agreement that AT&T drafted. IBM supports this with a few documents from AT&T including the $echo newsletter.
So as a matter of law, IBM says that summary judgment should be granted because it is all one-sided. Citing case law since everybody who was party to the original license agrees with IBM and all documents support their view and SCO has not produced any testimony or documents otherwise, IBM owns all their own original code and any derivatives of System V. Thus they could not have breached the contract.
Also, even if IBM breached the contract, the contract cannot be terminated because of Amendment X. Additionally, even if the contract could be terminated, SCO does not have the right to do so. Novell still retains the enforcement rights of System V. Lastly IBM notes that SCO should not be able to sue IBM over contributions to Linux if SCO itself still distributes Linux knowing it supposedly has "stolen SCO code"
Well, there's spam egg sausage and spam, that's not got much spam in it.
Unless they go through every page on the SCO-site manually, they probably got it from some news-source. I wouldn't be surprised if searching through /. is actually becoming standard practice for lawyers to get ideas about their angle of attack/defence on technical issues.
/. and similar sources.
Don't underestimate the value of opinions from thousands of people across the globe.. It's unprecedented in our history. IBM certainly knows the open source community well enough to warrant that a substantial portion of their employees reads
http://www.debunkingskeptics.com/