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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."
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!
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.
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
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
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
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.
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?
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.
I believe posters are recognized by their sig. So I made one.
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.
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
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.
I've been wondering why they haven't taken down the code from their servers. It just occurred to me that they may not have anyone in their company left who knows *how* to.
Looking for a Rails developer in Chapel Hill?
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.
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.
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.
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?
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.
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've been wondering why they haven't taken down the code from their servers. It just occurred to me that they may not have anyone in their company left who knows *how* to.
Don't be a fool, EVERYONE at SCO knows how to take it down:
TO:sco.com web server
FROM: SCO Legal
RE: Linux Download availability
It has come to our attention that you are offering Linux source code for download. This is a direct infringement of SCOs valuable IP portfolio. SCO (caldera) has worked hard to get credit for other peoples work, you are diminishing it. You are hereby ordered to CEASE AND DESIST.
Any lawyer can do that!
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!
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?
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.
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.
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.
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.
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
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.