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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.
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.
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.
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.
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!
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.