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."

Comments

What's the quickest this could be finished?

[Paul Crowley]

If the judge basically doesn't extend SCO the benefit of the doubt any further on any of this, how long might it take for the whole thing to be completely dead, stop quivering, be visibly a corpse? How long can SCO continue to drag the threat out before it's dead?

Mwahaha

[Anonymous Coward]

It's really cool to see how the things that we're pointing at here on Slashdot (like the still-available linux downloads) and going "wtf, SCO can't do that", we're finding eight months later IBM suddenly bringing this thing up in a legal finding and going "SCO did this, they can't do that".

It's funny, IBM's legal team doesn't miss anything but they seem to always wait until the most opportune time to bring it up. Meanwhile even if SCO's case hadn't been baseless in the first place, they seem to be doing absolutely everything possible to sabotage it short of bribing the judge.

Hey wait a minute, bribing the judge.. hmm...

You know, something just occurred to me. I think I know what SCO might be up to. Have you ever seen "The Producers"?

So, which parts of the case is allready dead

[KjetilK]

There has been a lot of stories on /. which says something like "if this goes through, the SCO case is effectively dead", and that "it is going to happen in weeks".

I must admit that I have gotten a bit tired of SCO stories (weird, huh?), but I can't remember seeing a ruling that has killed parts of SCOs case.

So, can somebody please summarize: Which parts of SCOs is dead now, by court rulings?

Difference between IBM & SCO

[CmdrGravy]

Reading the documents filed by IBM and by SCO I am constantly amused by the fact that I have no clue at all what SCO are getting at in there filings but the IBM filings are crystal clear and make perfect logical sense.

The best bits of this filing I think are the pages and pages of testimony from ( by the looks ) almost everyone involved in drawing up the and signing the original contract who all say unanimously

"This contract certainly does not provide SCO with the rights it says it is provided with, this was discussed at the time and all parties were agreed that it was not the case since to do otherwise would be so blatantly silly that no one would ever sign such a contract."

Also the way IBM have culled SCO's many accusations to the single matter of the contract dispute and then ( in my opinion ) thoroughly destroyed that even more effectively than they destroyed SCO's previous claims is very impressive and kind of suggests that this has been IBM's plan all along and everything is moving very smoothly for them.

SCO Stock is up!

[chipwich]

SCOX (http://finance.yahoo.com/q?s=scox) is up almost 10% at of 10:30 EST. It must be true! Why does this stock move paradoxically to the news?

Re:SCO Stock is up!

[Anonymous Coward]

The stock is *very* heavily shorted and thinly traded. Of the approximately 8.5 million shares that are available to be traded on the public market, more than 50% (that's 4 million plus shares!) are shorted. A typical stock is considered to be heavily shorted when it reaches 10-15%.

This means that when someone wants to cover their short position, they push the price up somewhat.. particularly when it's heavily shorted and thinly traded. It's known as "short squeeze".

Re:Even if they offer a "download"

[Scarblac]

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.

Re:There goes SCO's karma...

[Andy_R]

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!

Re:Even if they offer a "download"

[Waffle Iron]

The real question is that can SCO recall its copyright. Just because it offered the code does it preclude it from unoffering it. They can not sue people who have THAT code but can say that derivative works are illegal if there was such a clause in their license, which it seems there was.

However, in addition to their proprietary license, they chose to offer THAT code under a license, the GPL, that allows the recipients to recursively redistribute it. Since they still offer it, they have done this knowingly. SCO (or more likely, Novell) might retain a copyright on some code, but the terms of that license specify that it can't be "unoffered" from any recipients. These recipients may in turn redistribute it as they please.

In the worst case, IBM would just have to download the Linux code again from SCO's public FTP server and run a script to pointlessly replace any identical strings of text in IBM's kernel sources from SCO's source files.

How did the Registry get it so wrong?

[slipstick]

The Register claims "IBM goes on to argue ... that IBM was allowed to do what it liked with derivative works."

This is NOT what IBM's motion claims. In fact it's the exact opposite of what IBM was arguing. IBM's motion claims that the agreements with AT&T applied only to "derivative works" as defined by the US copyright office and truck loads of case law. "Derivative works" here having it's naturally understood meaning that the work must contain part of the original(or some substantial simularity).

So basically IBM was saying that they aren't allowed to distribute the source code to ALL of AIX or Dynix or any part that CONTAINS System V code, but they can distribute any of the code from these that belongs only to IBM(called homegrown code in the motion).

Since noone is claiming that IBM has given away all the code to AIX and Dynix, and because SCO has basically given up any pretense of showing code in Linux that might have come from System V AND because the only code SCO has actually pointed to belongs ENTIRELY to IBM which is expressly NOT derivative code, than IBM is well within their rights to distribute it.

In other words, "It belongs to us and we can do with it what we like, now piss off."

As opposed to "Sure part of it belongs to you but the contract says we can do with it what we like, so piss off". If this was the case I would be backing SCO here, but since it isn't, I want SCO to fry.

This is the SECOND summary judgement motion

[Animats]

This new motion is IBM's second motion for partial summary judgement. The first one, asking for dismissal of the copyright claims, was supposed to be decided this month, but that's been put off until September 15th. If the copyright claims are dismissed, it's over for everybody but IBM. That's the one we all care about.

The new motion is about IBM/SCO contract issues. That doesn't directly affect anybody else. Only the copyright claims matter to unaffiliated third parties.

Because...

[schon]

Why can't SCO Claim.

1) we didn't know it was there

Because they're still distributing it themselves.

2) Once we found out it was released everywhere by IBM the horse was way out of the barn.

Irrelevant. If you want to try to claim damages, you MUST do everything in your power to stop infringement.

3) IBM'S "illegal" actions have boosted the Linux market place

Again, irrelevant. How popular something is has no bearing.

4) To stay competitive we have to release a copy of Linux, under GPL, to be competitive.

That does not logically follow. Damages have no bearing on you continuing to be competitive or not.

5) But all of this is a result of the fruit of IBM's "illegal" actions so they still owe us damages.

By continuing to distribute it themselves, they are declaring that the value of the infringement is $0.00. There are no damages to be awarded.

Here's what SCOX should have done:

Once they discovered the 'infringing' code, they must immediately stopped distributing the material themselves, then contacted the responsible people to arrange for damages (which they claim was IBM.) In doing so, they must (as a matter of law) identify the lines of code that are 'infringing'.

They should then contact every distributor of Linux they know about (I'm guessing that a notification sent to Linux, kernel.org, along with a press release might be acceptable in this case), and notify them of the status of their claim, the lines of code that were at issue, and demand that they cease distributing the 'infringing' material.

Failure to follow these steps means that they can't claim damages.

There is *NO* (as in zero, nil, nada, zip, bupkiss) valid legal reason to not follow these steps, and many valid legal reasons they should.

The only answer as to *why* they didn't is as follows:

Either 1) they know they have no case, or
2) their lawyers don't know anything about the law at all, and should be disbarred and charged with fraud.