IBM Motion to Limit SCO Claims Granted

Kalak writes "IBM's motion to limit SCO's claims to those that have specific version, file and line numbers has been granted, in part. At the end of last year, SCO made 294 allegations. IBM asked for dismissal of 198 of them due to lack of this information, 1 SCO withdrew, 1 IBM withdrew from the request, and 185 of them have been dismissed from the case. This leaves 107 of the charges are left to be addressed by means other than lack of specificity (such as public domain, BSD code, who owns it, etc.) As usual, Groklaw, has discussion, as well as the Order and an excellent chart of the history of alleged violations has been created as well."

Comments

IBM- doing the right thing?

[beheaderaswp]

I hope that people appreciate the fact that IBM didn't just lay down on this suit and settle by dumping some money. They could have, and they can afford to do so. But rather, they are playing this out in a manner where there will be a ruling- a ruling where I predict Linux code will be vindicated.

I'll be an IBM customer for a long time due to this. And Whether IBM means it as some grand "do good gesture" or not is meaningless.

The resolution of this will mean that the US will not fall behind in Linux Development. Which they could- assuming the legality of Linux changed here- but not elsewhere.

Go IBM!

this emascualtes SCO's case

[close_wait]

In case anyone isn't clear as to the significance of this, SCO have two main types of complaint: straightforward copyright violations ("ooh your honour, their errno.h looks just like ours"), and the more nebulous "methods and concepts". The judge has now thrown out most of the latter, which were always going to be the more complex to defend against. The literal copying is easy: "it's from the POSIX standard", "it's from the old System III code that Caldera put in the public domain" etc.

SCO are finished.

Re:this emascualtes SCO's case

[jmorris42]

> It only cost them about 12 million so they definately got their money's worth from this one. They suckered
> a bank into dumping a bunch of money (who took it in the shorts) and that bank is probably wanting some sort
> of re-imbursement but still just chump change for MS.

You clearly aren't cynical enough. Those banks didn't lose a dime. They were laundering MSFT's money to SCOX pure and simple. Somewhere (probably in Balmer's office on well encrypted media) is a set of books showing how other payments (remember both Baystar and RBC had and still have extensive dealings with MSFT) were inflated to cover the transfer^Winvestment to SCOX.

SCO was Microsoft's sock puppet from day one. SCO was dead and they knew it so it wasn't like they had much choice, so they took on Darl and went on a suicide mission to buy Microsoft some time to come up with some strategy that might actually be able to stop FOSS other than launching the Patent Wars.

Nobody wants the Patent Wars, it is a doomsday device, once it goes off nobody can say with any certainty who survives or what the postwar world looks like. But they are increasingly being pushed against the wall and will eventually be forced to push the button. Yes they are still mighty, have annual sales in the billions and a virtual monopoly. But their stock has been flat since the .bomb crash and pressure is mounting for them to "do something." Be afraid, very afraid that the SCO trial is about over.

IBM saw it for what it is.

[Lead Butthead]

IBM saw the entire affair for what it is -- extortion. They also knows that if they cave into one, they'll be defending themselves till cow comes home.

Re:IBM saw it for what it is.

[iainl]

I think the phrase you're looking for is:

"I want this guy dead! I want his family dead! I want his house burned to the ground! I want to go there in the middle of the night and piss on his ashes!"

yes?

A very thorough piece of work.

[Anonymous Coward]

Judge Wells supports her decisions in a manner that effectively prevents them from being appealed.

She uses Sandeep Gupta's (he testified for SCO) testimony to support the requirement for specificity.

She uses the fact that SCO didn't complain when it was ordered to produce specific lines of code. She also notes that SCO never asked for clarification on that point.

She is firing SCO's own testimony and actions (or lack thereof) right back in their faces.

Some posters on Groklaw and the Yahoo SCOX message board have speculated that this decision means that a couple of the counterclaims are a slam dunk. In particular, it now appears that Linux is completely clear of copyright violations wrt anything that SCO owns or says it does.

Re:Geocities?

[Anonymous Coward]

coral cache

Pro-SCO

[PavementPizza]

Know what's funny? I just figured out that prosco.net is now a parked domain. I guess they didn't have the heart to keep pretending anyone wanted to read it.

Key extracts from the Judge's order

[Animats]

It's worth reading the entire order from Judge Wells. However, for the benefit of those who don't enjoy reading legal documents, here's are the highlights. These are the Judge's words:

• As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public. At a trade show in 2003 SCO shared with the public a presentation outlining SCO's claims against IBM. SCO identified four categories of alleged misappropriation: ... Finally, in the presentation SCO also gave "one example of many" of line by line copying between the System V Code and Linux kernel code.14
• SCO ... was ordered .... to provide and identify with specificity all lines of code in Linux that it claims rights to.
• In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball's order entered in July 2005.
• SCO was ordered on multiple occasions to answer IBM's interrogatories which in this court's view covered methods and concepts and a request for the code behind them. Thus, SCO's failure to provide code for the methods and concepts it claims were misappropriated is also a violation of Rule 26(e) in addition to a violation of this court's orders.
• Based on the foregoing, the court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO. The court further finds that such failure was intentional and therefore willful based on SCO's disregard of the court's orders and failure to seek clarification. In the 118 view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put "all evidence . . . on the table." Accordingly, the court finds that SCO willfully failed to comply with the court's orders.
• Based on the foregoing, the court GRANTS in PART IBM's Motion to Limit SCO's Claims.

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court. There are a few minor claims remaining, but they're minor and mostly related to old contractual issues that can only involve IBM, not third parties using Linux.

This is all still pretrial manuvering, during which the case becomes better defined. In the next phase, we have "dispositive motions", which will probably include a motion by IBM for summary judgement against SCO. Some more SCO claims will probably be thrown out at that phase.

Re:Key extracts from the Judge's order

[swillden]

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court.

No, I don't think this is correct. SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints. Everything that has been left is related to their contract claims against IBM. SCO is saying that IBM should not have put stuff into Linux that it got from Unix because IBM's contract with AT&T (of whom SCO claims to be successor in interest) required IBM to keep it confidential, not because there's any actual copyright infringement.

What has happened here is that the court has thrown out many of SCO's allegations of contract violation because SCO couldn't define the allegations. Many more will undoubtedly get thrown out in summary judgements when the court determines that SCO's allegations are over Unix information (methods and concepts) that are and have been public for a long time. Then, finally, assuming SCO doesn't evaporate before then, SCO's basic theory about what the IBM/AT&T contract says will be ajudicated, at which point the rest of the complaints will be tossed, because the contract doesn't say that IBM's own code that happened to rub up against AT&T's code falls under the terms of the contract, and because AT&T explicitly clarified this point to IBM and the other licensees.

And, at some point in there, the court will get to rule on some of IBM's allegations about SCO's misconduct -- Lanham Act violations (essentially false advertising), tortious interference with business and, sweetest of all, straight up copyright infringement from SCO's distribution of IBM's code in Linux. The only permission SCO had to distribute IBM's code was the GPL, and SCO stopped providing source code after they started this lawsuit, violating the terms of the GPL and thereby rescinding the GPL-provided permission.

Re:Granted IN PART

[Monokeros]

21 actually

SCO made 294 claims.
IBM objected to 198 of the claims.
Judge Wells allowed 17 of IBM's 198 disputed claims and barred the rest.

That leaves 117 of SCO's 294 claims standing. ~66% gone.

1 really damn good read. Judge Wells's order was fantastically fun.

Re:Not quite.

[Ohreally_factor]

Apparently, you aren't familiar with IBM's legal reputation. Their legal department has been nicknamed the Nazgul . 'Nuff said.