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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."
Pay your $699 fee, and shut up!
Even if they offer a "download" of the disputed code, how do we know they didn't just copy some random code which did exist in the kernel?
Maybe they could offer a $50/year licensing fee to other open source companies that use their patents and a fee of one BAZILLION dollars to SCO to use their patents.
the major advances in civilization are processes which all but wreck the societies in which they occur - A.N. White
Ah, "to scupper":
v. 2. put in a dangerous, disadvantageous, or difficult position
Yep, that's it.
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?
Xenu loves you!
In other words you're glad they're getting slapped like the bitches they are?
Word. Sue IBM? Bad idea. But if you do it, you best make sure you've got your shit together.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
Authored by: sef on Monday, August 16 2004 @ 11:34 AM EDT Posted on Groklaw, Sef is the author, not me.
"We didn't do it. Even if we did, these guys said we could, but we didn't. And even if we did, which we didn't, not only did these guys say we could (but we didn't), but these nobks did the same thing, so we should be allowed to do it. Which we didn't."
Official GOD FAQ.
Against SCO for making us with mod points have to dig through yet another SCO discussion.
-- If god wanted me to have a sig, he'd have given me a sense of humor.
I hope IBM follow this up with a request that SCO have to pay legal costs. 100 pages at rate even Tony Soprano would be ashamed at extorting ... erm charging ... should push SCO into chapter 11
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.
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"?
It also happens to be the Puzzle Pirates filter replacement for the word fucked
yours,
kbs
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 just gone and bought a license from SCO as well... and now you say they don't have a leg to stand on?
www.ebay.com
For sale, hardly used, SCO unix licenses.
You beat their ass good big blue! I don't want thier own mothers to recognise them!
SCO shows that everyone can hate you, and you can still try and make money. At least Microsoft stole thier crap from someone fair and square.
#hostfile 0.0.0.0 primidi.com 0.0.0.0 www.primidi.com 0.0.0.0 radio.weblogs.com
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?
Employee of Inrupt, Project Release Manager and Community Manager for Solid
Free Software: Like love, it grows best when given away.
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.
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.
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?
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.
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!
A pizza of radius z and thickness a has a volume of pi z z a
....duelling.
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.
Q: Why doesn't IBM just buy out SCO for a cool 64M?
A: They're probably getting more than 64M in free publicity from those jerks.
With all the court fees, lawyers, and FUD that SCO is costing IBM, I would think it'd just be cheaper to buy them. There, now we most certainly own the code.
---
Those who can, do
Those who can't, teach
Those who don't know how, supervise
Sorry to say this, but IBM is going down...
Yes they are! They are going down HARD on Sco. When they get up, they will brush SCO off their knees and do what they do.
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?:)
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!
It's basically a gathering ground for trolls, where they post links to specific Slashdot posts that they want to be modded up (generally something that is trollish) in order to get lots of attention to it. Visiting the site itself won't hurt you, just don't click on the Slashdot links on the site unless you have HTTP referers disabled since apparently (according to the original post) Slashcode picks that up now and puts you on a moderator-banned list.
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.
Sure information wants to be free, but how much are you willing to pay for the packaging?
I sent an offer of $699, but as yet I have no response. I think it's quite generous, I can't imagine what's keeping them.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
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'
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.
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.
or some other pro-Linux company.
Wait. Wait. Here me out. I am just playing the devil's advocate here to bounce an alternative theory off of the group. I do not think this is true, but 'what if' ...
This is the scenario:
I know, too many steps.
It is easy for many /.ers to think of Microsoft as the evil giant seeking to destroy Linux. What if this case is more like a legal vaccination? The SCO case could be used to create legal precendents to make it more difficult to attack Linux in the future. That which does not kill you makes you stronger.
To repeat, I do not think this is what is happening, but I do find it interesting to consider the possibility.
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.
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
Notice who they got to compare Linux and SVRX (and AIX and Sequent) code against each other?
A REAL LIFE MIT scientist... and not just any fictitious MIT scientist.... but Dr. Randall Davis, Director of Research for CSAIL.
i read that and said to myself... wholly fscking shit... THAT is funny.
guns kill people like spoons make Rosie O'Donnell fat.
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
The GPL prohibits this for code that IBM distributes. But IBM doesn't distribute much GPL code (except internally). That is why it is important that:
a) the cost be nominal (it's a non-recoverable sunk cost), and
b) the license be irrevokable, and entend to those who use n-th generation copies/derivations.
OTOH, to the extent that IBM has distributed GPL code to those customers who run Linux on IBM mainframes, IBM has already waived those rights. (I don't know how significant this is.)
I think we've pushed this "anyone can grow up to be president" thing too far.
IBM is fighting this the only way it can be faught.
SCOX has been playing a shell game of issues and evidence.
when ever IBM has asked to define the issues or evidence SCOX has moved to the
next wallnutshell.
what IBM has done is to say to the Court, OK, but they can't go back to that
later. one PSJ is bad enough for SCOX, but when they start adding up SCOX
starts to run out of wallnuts to use for misdirection. before long they will be
sitting at a table with all their nuts smashed.
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.
or does anyone else think SCO should go back to their orignal name of Caldera, since that is Greek for "big hole in the ground" ?