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SCO's Finances, Legal Case Take Hits
geomon writes "This afternoon, SCO will host a conference call where they will present '04 third quarter financial data. The news isn't expected to be comforting to SCO investors as they are coming up a bit short; earnings and dividends will take a substantial hit. The only bright spot for the company is the settlement with BayStar, a deal that will leave most of the cash they received from the investment house in the hands of SCO management, if only for a short time." Reader ak_hepcat writes "Groklaw has posted the text for the latest IBM memorandum in its case against SCO. In a nutshell, IBM accuses SCO of not only wrangling the legal process to keep delaying the eventual resolution of this case, but they go so far as to pull the curtain away and show that this table never had any legs to begin with. I'm no marksman, but I can tell when something is full of holes."
It costs $699 a processor. Pay up.
(Slashdot, please *try* to mirror the articles on other websites; SCO especially due to all the traffic they cause. You are at liberty to customize (http://www.gnu.org/software/wget/wget.html) to ignore Robots.txt if you like; please try to help another's bandwith bill! Thanks; part 2 of 4;) Civil No. 2:03CV0294 DAK Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells TABLE OF CONTENTS Page Preliminary Statement 1 Statement of Undisputed Facts 5 Argument 6 I. SCO BEARS THE BURDEN OF DEMONSTRATING THAT THERE ARE GENUINE ISSUES OF MATERIAL FACT THAT WOULD PRECLUDE SUMMARY JUDGMENT ON IBM'S TENTH COUNTERCLAIM 6 II. SCO HAS NOT ADDUCED, AND CANNOT ADDUCE, EVIDENCE SUFFICIENT TO CREATE A GENUINE ISSUE OF MATERIAL FACT 10 A. SCO Fails Properly To Challenge IBM's Statement Of Undisputed Facts 11 B. SCO Fails To Adduce Any Competent Evidence That IBM Has Infringed SCO's Alleged UNIX Copyrights 12 1. SCO's purported evidence should be stricken from the record because it was not disclosed in response to IBM's discovery requests or in response to Judge Wells's discovery orders 12 2. In any event, SCO's purported evidence is inadmissible because it is not based on personal knowledge and is improper opinion testimony 17 3. Even if his testimony were admissible, the allegedly infringing code identified by Mr. Gupta is insufficient to establish copyright infringement 18 C. SCO Fails To Adduce Any Competent Evidence That SCO Is The Rightful Owner Of Valid Copyrights In The UNIX Software 23 III. NEITHER SCO'S RULE 56(f) APPLICATION NOR THE PROCEDURAL POSTURE OF THE CASE PRECLUDES A GRANT OF SUMMARY JUDGMENT 25 A. The Fact That Discovery Is Not Complete Is Alone No Reason To Grant SCO's Rule 56(f) Application 26 B. SCO Has (And Has Had) All Of The Materials It Needs To Show "Substantial Similarity" And Claims Already To Have Analyzed The Materials 27 C. None Of The Additional And Extensive Discovery SCO Seeks Is Necessary Or Even Relevant To IBM's Motion 32 IV. SCO'S OPPOSITION SEEKS MERELY TO CREATE A SMOKESCREEN TO COVER THE INADEQUACIES OF ITS CLAIMS AND FURTHER TO DELAY THE RESOLUTION OF THIS LITIGATION 38 Conclusion 45 TABLE OF AUTHORITIES CASES Adams v. Goodyear Tire & Rubber Co., 184 F.R.D. 369 (D. Kan. 1998) 30 Adler v. Wal-Mart Stores. Inc., 144 F.3d 664 (10th Cir. 1998) 7, 31 American Eagle Ins. Co. v. Thompson, 85 F.3d 327 (8th Cir. 1996) 8 Ashley Creek Phosphate Co. v. Chevron, 129 F. Supp. 2d 1299 (D. Utah 2000) 11 Autoskill Inc. v. Nat'l Educ. Support Sys., Inc., 994 F. 2d 1476 (10th Cir. 1993) 22, 24, 28 Baker v. IBP, Inc., No. 02-4067, 2002 U.S. Dist. LEXIS 23869 (D. Kan. Dec. 5, 2002) 14 Ben Ezra, Weinstein, & Co., Inc. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000) 27 Biocore Med. Techs., Inc. v. Khosrowshahi, No. 98-2031, 1998 U.S. Dist. LEXIS 20512 (D. Kan. Nov. 6, 1998) 14 Bobian v. Csa Czech Airlines, 232 F. Supp. 2d 319 (D.N.J. 2002) 31 Bridge Publ'ns. Inc. v. F.A.C.T. Net. Inc., 183 F.R.D. 254 (D. Colo. 1998) 24 Brightway Adolescent Hosp. v. Health Plan of Nevada, Inc., No. Civ. 2:98CV0729, 2000 WL 33710845 (D. Utah Sept. 20, 2000) 32 Bucklew v. Hawkins, Ash. Baptie & Co., LLP, 329 F.3d 923 (7th Cir. 2003) 22, 34 Calvary Holdings, Inc. v. Chandler, 948 F.2d 59 (1st Cir. 1991) 37 Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132 (2d Cir. 1998) 34 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 7 Committee For The First Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992) 26, 27 Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) 24 Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) 21 Country Kids N City Slicks, Inc. v. Sheen, 77 F.3d 1280 (10th Cir. 1996) 10, 28 Cudjoe v. Independent Sch. Dist. No. 12, 297 F.3d 1058 (10th Cir. 2002) 7 Cuenca v. Univ. of Kan., No. 98-4180, 2001 U.S. Dist. LEXIS 9942 (D. Kan. May 14,
I am the nightmare of nightmares.
(my sincere apologies on the last post, due its form error. heil to slashdot's "code" form post)
(Slashdot, please *try* to mirror the articles on other websites; SCO especially due to all the traffic they cause. You are at liberty to customize (http://www.gnu.org/software/wget/wget.html) to ignore Robots.txt if you like; please try to help another's bandwith bill! Thanks; part 2 of 4;)
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
TABLE OF CONTENTS
Page
Preliminary Statement 1
Statement of Undisputed Facts 5
Argument 6
I. SCO BEARS THE BURDEN OF DEMONSTRATING THAT THERE ARE GENUINE ISSUES OF MATERIAL FACT THAT WOULD PRECLUDE SUMMARY JUDGMENT ON IBM'S TENTH COUNTERCLAIM 6
II. SCO HAS NOT ADDUCED, AND CANNOT ADDUCE, EVIDENCE SUFFICIENT TO CREATE A GENUINE ISSUE OF MATERIAL FACT 10
A. SCO Fails Properly To Challenge IBM's Statement Of Undisputed Facts 11
B. SCO Fails To Adduce Any Competent Evidence That IBM Has Infringed SCO's Alleged UNIX Copyrights 12
1. SCO's purported evidence should be stricken from the record because it was not disclosed in response to IBM's discovery requests or in response to Judge Wells's discovery orders 12
2. In any event, SCO's purported evidence is inadmissible because it is not based on personal knowledge and is improper opinion testimony 17
3. Even if his testimony were admissible, the allegedly infringing code identified by Mr. Gupta is insufficient to establish copyright infringement 18
C. SCO Fails To Adduce Any Competent Evidence That SCO Is The Rightful Owner Of Valid Copyrights In The UNIX Software 23
III. NEITHER SCO'S RULE 56(f) APPLICATION NOR THE PROCEDURAL POSTURE OF THE CASE PRECLUDES A GRANT OF SUMMARY JUDGMENT 25
A. The Fact That Discovery Is Not Complete Is Alone No Reason To Grant SCO's Rule 56(f) Application 26
B. SCO Has (And Has Had) All Of The Materials It Needs To Show "Substantial Similarity" And Claims Already To Have Analyzed The Materials 27
C. None Of The Additional And Extensive Discovery SCO Seeks Is Necessary Or Even Relevant To IBM's Motion 32
IV. SCO'S OPPOSITION SEEKS MERELY TO CREATE A SMOKESCREEN TO COVER THE INADEQUACIES OF ITS CLAIMS AND FURTHER TO DELAY THE RESOLUTION OF THIS LITIGATION 38
Conclusion 45
TABLE OF AUTHORITIES
CASES
Adams v. Goodyear Tire & Rubber Co.,
184 F.R.D. 369 (D. Kan. 1998) 30
Adler v. Wal-Mart Stores. Inc.,
144 F.3d 664 (10th Cir. 1998) 7, 31
American Eagle Ins. Co. v. Thompson,
85 F.3d 327 (8th Cir. 1996) 8
Ashley Creek Phosphate Co. v. Chevron,
129 F. Supp. 2d 1299 (D. Utah 2000) 11
Autoskill Inc. v. Nat'l Educ. Support Sys., Inc.,
994 F. 2d 1476 (10th Cir. 1993) 22, 24, 28
Baker v. IBP, Inc.,
No. 02-4067, 2002 U.S. Dist. LEXIS 23869 (D. Kan. Dec. 5, 2002) 14
Ben Ezra, Weinstein, & Co., Inc. v. America Online Inc.,
206 F.3d 980 (10th Cir. 2000) 27
Biocore Med. Techs., Inc. v. Khosrowshahi,
No. 98-2031, 1998 U.S. Dist. LEXIS 20512 (D. Kan. Nov. 6, 1998) 14
Bobian v. Csa Czech Airlines,
232 F. Supp. 2d 319 (D.N.J. 2002) 31
Bridge Publ'ns. Inc. v. F.A.C.T. Net. Inc.,
183 F.R.D. 254 (D. Colo. 1998) 24
Brightway Adolescent Hosp. v. Health Plan of Nevada, Inc.,
No. Civ. 2:98CV0729, 2000 WL 33710845 (D. Utah Sept. 20, 2000) 32
Bucklew v. Hawkins, Ash. Baptie & Co., LLP,
329 F.3d 923 (7th Cir. 2003) 22, 34
Calvary Holdings, Inc. v. Chandler,
948 F.2d 59 (1st Cir. 1991) 37
Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc.,
150 F.3d 132 (2d Cir. 1998) 34
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) 7
Committee For The First Amendment v. Campbell,
962 F.2d 1517 (10th Cir. 1992) 26, 27
Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989) 24
Computer Assoc. Int'l, Inc. v. Altai, Inc.,
982 F.2d 693 (2d Cir. 1992) 21
Country Kids N City S
I am the nightmare of nightmares.
(Slashdot, please *try* to mirror the articles on other websites; SCO especially due to all the traffic they cause. You are at liberty to customize (http://www.gnu.org/software/wget/wget.html) to ignore Robots.txt if you like; please try to help another's bandwith bill! Thanks; part 3 of 4;) In addition to Rule 37(b)(2), therefore, the Gupta Declaration should also be excluded from consideration on IBM's motion for summary judgment under Rule 37(c)(1). See Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir. 1994) (affirming exclusion of testimony at trial because defendant failed adequately to respond to interrogatories); Stevens v. Deluxe Fin. Servs., Inc., 199 F. Supp. 2d 1128, 1144 n.44 (D. Kan. 2002) (excluding document from consideration on summary judgment motion because it was not provided in response to discovery requests); Go Med. Indus. Pty, Ltd. v. Inmed Corp., 300 F. Supp. 2d 1297, 1308-10 (N.D. Ga. 2003) (excluding documents and testimony from consideration on summary judgment motion because they were not disclosed in response to discovery requests). 2. In any event, SCO's purported evidence is inadmissible because it is not based on personal knowledge and is improper opinion testimony. As is described in more detail in IBM's accompanying motion to strike, Mr. Gupta's testimony should further be stricken from the record because it is not based on personal knowledge and SCO has made no attempt to qualify Mr. Gupta as an expert witness. Accordingly, the testimony is not competent evidence and cannot be relied upon to create a genuine issue of material fact.17 3. Even if his testimony were admissible, the allegedly infringing code identified by Mr. Gupta is insufficient to establish copyright infringement. Even if the Gupta Declaration was timely disclosed (which it was not) and even if it was competent evidence (which it is not), it remains insufficient as a matter of law to show that a genuine issue of material fact exists as to IBM's copying of protectable elements of SCO's allegedly copyrighted materials. See Mitel, 124 F.3d at 1370 ("In order to establish copyright infringement, plaintiff must prove ... that the defendant copied protectable elements of the copyrighted work.") (emphasis added).
The Tenth Circuit has adopted the abstraction-comparison-filtration test, to determine whether a computer program, such as the Linux kernel, is substantially similar to (and therefore may infringe the copyright in) another computer program, such as SCO's allegedly copyrighted UNIX software. See Gates Rubber Co. v. Bando Chem. Indus. Ltd., 9 F.3d 823, 834 (10th Cir. 1993). As set forth in Gates Rubber, the test requires that a court (1) "dissect the program according to its varying levels of generality", (2) "filter out those elements of the program which are unprotectable" at each level of abstraction; and (3) then "compare the remaining protectable elements with the allegedly infringing program". Id. According to the Tenth Circuit, "[f]iltration should eliminate from the comparison the unprotectable elements of ideas, processes, facts, public domain information, merger material, scenes a faire material, and other unprotectable elements suggested by the particular facts of the program under examination." Id. at 834.
As discussed in IBM's accompanying motion to strike, Mr. Gupta's analysis wholly disregards the abstraction-filtration-comparison test and is therefore fatally flawed.18 Specifically, Mr. Gupta failed to filter the unprotectable elements of the allegedly copyrighted work and to apply the appropriate standard for determining, at the comparison stage, whether one body of code is substantially similar to another body of code.
In his declaration, Mr. Gupta opines that six "routines" or "groupings of code" in Linux are substantially similar to the allegedly copyrighted works: (1) "the Read-Copy-Update [(RCU)] routine"; (2) "the user level synchronizations (ULS) routines"; (3) "IPC code"; (4) certain "header and interfaces"; (5) "System V init code"; and (6) "Executable and Link
I am the nightmare of nightmares.