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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."
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.
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"?
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.
Free Software: Like love, it grows best when given away.
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.
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.
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".
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?
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.
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.