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IBM's Counterclaim 10 Outlines 5 Ways SCO's Wrong
ColonelZen writes "My article at IPW reads: But, however slowly, the wheels of justice do grind on. The discovery phase of SCO v. IBM is now complete, and as per the court's schedule the time to raise Summary Judgment issues is now. And IBM has indeed raised them ... such that it is very possible that all of SCO's claims against IBM could wind up dismissed piecemeal in those motions. ... Yesterday, IBM's redacted memo in support of CC10 hit Pacer. ... This is 102 pages detailing five independent but overlapping, direct and powerfully detailed reasons why SCO's claims of Linux infringement against its code are nonsense."
Very sad that european courts can deal with utterly absurd claims so very quickly in corporate cases (and have done so for SCO's), while the SCOX vs. IBM and SCOX vs. Novell still drag on even though by the judge's comments it's clear they know the thing is a farce.
Wait, so SCO actually had claims? As in, they claimed that IBM actually was doing something wrong? Funny, from everything I've read, I thought SCO had brought IBM to court on account of "nanny-nanny boo-boo."
I read the title then the little blurb.......this whole summary reads like something a spammer would stick to the end of an email to try and get past a filter.
How much can I have a 'linux license' for now?
You filthy teabaggers.
Obviously you're not familiar with Jarndyce Vs. Jarndyce?
Does this mean Microsoft should get a refund for the "license" they bought
from SCO to use some Unix code.
The reason this has been such a slow process is that SCO is the plaintiff, and they're stalling. Usually, the plaintiff, who initiated the case, is pushing the case forward, while the defendant tries to stall. This case is backwards.
But stalling only works for so long. SCO was able to drag out pretrial discovery for years. But now, discovery is over. No more surprises. No more "we'll disclose the evidence when the time comes" from SCO. That deadline has past. Now the pace picks up. Here's the final part of the case schedule, as set by the court:
Notice how the events come closer and closer together as the trial date approaches and the judge becomes more directly involved.
The next exciting moments will come in late November or early December, when the judge decides the summary judgement motions. SCO will then be worse off than they are now; the only question is how much worse off.
Are we there yet?
Misuse of copyright means that someone uses copyright for a purpose that isn't intended for copyright. In SCO's case it means that by claiming copyright on 300 or so lines of code, they claim to control a zillion other lines of code. IIRC, it amounted to 0.005% of the total.
One of the cases IBM cites is interesting. In Lasercomb v. Reynolds, Reynolds et al copied Lasercomb's code and sold it under their own name. That should be a slam dunk conviction, right? The court let Reynolds off because Lasercomb misused its copyright. Lasercomb did that because they had an EULA that was nearly as bad as the one Microsoft has for Vista. Hmm.
Apparently Vista will not work after you have changed your motherboard twice. That's not what copyright is for. Copyright is to keep me from copying Microsoft's copyrighted works. It isn't intended to enforce a license fee on me. Once I have purchased a copyrighted work, it is mine forever to do anything I wish, except copy. So if I find a way to make Vista install on a fifth motherboard (twenty years from now), Microsoft might not be able to charge me with a copyright violation (DMCA is another matter).
I really hope the judge rules on misuse of copyright. (He could render it moot by ruling that any of the other four reasons wins the case for IBM.)
No, it means that the millions MS paid for FUD via the fake license money should end up with Novell, thereby ending with MS funding Linux.
Their first claim is a bit off -- in order to find copying of a computer program, you don't actually need to have copying of the actual code, either source or object. It can be sufficient to copy the structure. So, for example, using somebody else's design documents to generate your own code can still be an infringement, even though you never even SAW their source code.
There's this concept in US copyright law called the "Idea/Expression dichotomy." Basically, this says that you can't protect an idea, but you can protect the expression of that idea. The difficult part is trying to figure out where the boundary exists -- the expression isn't just the written word itself. For example, a book about a boy wizard named Larry Hatter and his two friends at a British school "Pigzits" of witchcraft divided into four houses where they fight a guy called "he who nobody wants to name" with a lot of other similar details would probably infringe J.K. Rowlings' copyright in the Harry Potter character, even if none of the actual language was copied. (Parodies are another matter....)
The same thing goes in code. The fact that there is no actual code duplication does not mean that there isn't any copyright infringement -- it just means that SCO's case is that much harder to prove.
I could only discern 4 reasons:
1) IBM's Unix agreements do not prevent them from contributing their AIX or Dynix code to Linux.
The Unix System V agreement only limited what IBM could do with original System V code. Code developed by or for IBM was never intended to be controlled by AT&T or its successors. Everyone who was involved in the original negotiations agrees with IBM on this point.
2) SCO's predessors (AT&T, USL, Novell) specifically told their licensees they could do what they wanted with their own code.
AT&T specifically told concerned licensees via newsletter and correspondence that all code developed independent of System V was theirs. Over the next two decades, AT&T and it successors except SCO allowed all licensees to do what they wished.
3) Even if 1 and 2 were not true, SCO's predessors and SCO itself have already waived any breaches that may have occurred.
Novell has waived any breaches. Also, SCO's distribution of Linux (which contains some of the alleged breached material) waives the breach. SCO's predessor's contributions to Linux also waives their rights to specific alleged material.
4) Statute of limitations prevent SCO from pursuing any claims.
The statue of limitations is 6 years in New York. SCO has known about alleged breaches since 1995. SCO first filed suit in 2003 which beyond the statute of limitations.
Well, there's spam egg sausage and spam, that's not got much spam in it.
SCO's lawyers have used brilliant stalling tactics. The longer the case is before the court, the longer the FUD lasts; the longer some people stay out of jail (Darl could be in real trouble because of some of his public statements.) There could be real trouble because of Lanham act violations. AllParadox and Marbux (lawyers) seem to agree that Darl and co. will be found personally liable to the extent that they will lose all their assets.
There is also reason to believe that IBM may not wish this case to end as quickly as it otherwise might. What the judge and the SEC and the AG do to SCO, and everyone involved with this scam, will serve as a warning to anyone else who thinks they can pull a similar stunt. It is not for nothing that IBM's lawyers are nicknamed the Nazgul. What matters to most of us is that the judge will find that Linux is pristine wrt the taint of any Unix code. That's important to IBM because they seem to have bet the farm on Linux. Unix, AIX, Dynix, mainframe, etc. are slowly subsiding and IBM will have trouble surviving in a Microsoft only world. They need Linux and they need the business community's confidence that they can use Linux without being sued.
The other thing that might have been lost if the case ended sooner is Goldfarb's (Baystar finance) declaration in which he fingers Microsoft as being behind at least some of SCO's litigation financing. A couple of years from now, when we have a new president, the Microsoft antitrust settlement could be re-visited. If Microsoft is found guilty of financing SCO's lawsuit (it's illegal to do so) then Microsoft could be facing breakup again.
This is all big stuff for IBM and they do have some reason to want to see the wheels of the law grind exceeding fine. origin of quote
Lawyers including judges need it that way.
What the hell happened to quick and speedy trials ?
If you read the Grokster decision, you'll find a comprehensive discussion of copyright misuse, but as the PrawfsBlawg points out, for those who wish the short version, the penalty is not getting to enforce for as long as the misuse continues: "The effect isn't to invalidate the copyright, but rather to preclude its enforcement so long as the misuse is ongoing."
Larry Lessig has suggested it *ought* to be penalized with forfeiture, but that isn't the law. People who are not lawyers or in any way trained in the law should probably be careful not to assert things that they don't know or can't prove, and should put links to proofs others can check, so others are not misled. A little modesty goes a long way.
So the big, bad SCO decided to try an scare their victims with a long trial, and in doing so reaching an out-of-court settlement. SCO is now getting a taste of what they were threatening, a long trial. However, it is their ass that is getting whooped, not IBM's as they had hoped. Ohhh the Irony!!
Gottes Muhlen mahlen langsam,mahlen aber trefflich klein
Ob auss Langmuth er sich seumet, bringt mit Scharff er alles ein.
Sorry to be a pedant but I am always annoyed when a source quotes a translation as the original.
Pining for the fjords
Parent is interesting, come on!
That seems to be what Lasercomb v. Reynolds was about. AFACT, Lasercomb attempted to use the copyright law to enforce an egregious license. Microsoft and its EULA seems more similar than dissimilar. Read and discuss. ;-)
u re/cases/antitrust/lasercomb_america_v_reynolds.ph p
http://www.law.uoregon.edu/faculty/kaoki/site/sec
Msft and scox sure got there money's worth out the scam. 5 years of FUD for msft for less than $100 million is a great bargin. It costs about $40 to make a single commercial.
As for Darl, he's pocketed about $2 million in the last four year, which isn't bad for a small-time scam artist like Darl.
Overall, I'd say the scam was a great success for the scammers. Maybe not all they hoped for, but a success none-the-less.
And please forget this non-sense about the scammers being held accountable. That sort of thing is extremely rare in the US justice system. This is actually one msft's lesser scams.
Or is than "an hot carl". I can never remember what is in fashion now.
This issue is a bit more complicated than you think.
The rebuttal is pretty comprehensive, barring the section about the lines of memory allocation code, which is sort of passed over quickly (if I remember correctly, when the case started, Linus Torvalds had something to say about some malloc or other). Other than that, what matters now, and what the trial will probably concentrate upon, are the previous agreements between the parties, most of which are redacted from the summary.
For high profile cases, punishment is not that rare. Enron, Worldcom, Tyco, Conrad Black come quickly to mind. I can't find it easily but I clearly remember AllParadox posting that he thought McBride and Yarro would lose their personal fortunes. Most people think the SEC won't act until the court cases are settled. Darl's big mouth has exposed him to the Lanham act. So, I respectfully disagree with you. I do think McBride and Yarro will pay a personal price.
And then Nintendo sues SCO, alleging that "Nuke Ducks Forever" is based on Nintendo's "Duck Hunt" game for NES. Even the dog is laughing at SCO.
[Aussies will get the ref above]
But, yeah. There was going to be one sooner or later. There were questions about Linux that this suit answers.
Yes, it really is free. Yes, you can use it legally, for free. Yes, it really was developed without pinching anybody elses code. No, you will not get sued for using it.
Thanx SCO!
I heard Billy G gives great Handjobs...
Oh, you haven't got yours yet? Too bad...
There's always tomorrow...
300 lines of code in a kernel is a joke it would make no inpact on anything. ok lets say sco relly cared abought these lines for whatever reasion the first thing a company does is contact the other party and say hey some of are code is in your kernel remove it please. of course right there would ended the conflict being the linux guys would have if sco relly had any proof where they where at if any. but sco skiped asking nice or even rudely they just skiped to lawsuit. they wanted it couse ms was paying them off that was proven to try and give linux bad name then sit around scaring companys etc. even thow it had no real effect on linux couse everyone quickly lerned they where full of crap. but at first they did manage to scare a few companys and i hope the juge makes them give every cent back oh wait by the time ibm is done with them they whont have a cent well maybe ibm will be nice lol and give it back.
You called the first guy a troll and said he was spreading FUD.
FUD rhymes with crud and mud which are often associated with dirty or bad. FUD has the first three letters of fudge witch is commonly used as a verb to state that a little cheating and lying is going on. The context FUD is often used in is similar to the context of saying someone has stated something erroneous. FUD is almost always preceded by the word spreading. A couple more words that are almost always preceded by spreading are misinformation and manure.
If a person didn't know what FUD meant it would be quite reasonable to infer that FUD was synonymous with misinformation, it however is not. FUD is an acronym for fear, uncertainty, doubt. Someone who spreads FUD has the intention of coercing others to not do something because of the fear, uncertainty, and doubt they feel after considering what that person has said. Contrary to misinformation, FUD is usually information that is correct. FUD focuses on and enhances the apprehension people feel for doing something because it might bring them more harm than good.
If someone were to benefit from people choosing not to use Linux they might spread misinformation. They could lie and say Linux will damage your computer equipment. However, that is easily proven to be false and would most likely be a costly mistake. However, they could spread fear, uncertainty, and doubt by saying small truths that seem to add up and shed a negative light on Linux. People might become afraid to use Linux because they are uncertain about how risky it is and doubt that it would be worth the trouble.
That dude may or may not have been spreading misinformation, but there certainly wasn't anything in his post that caused me to be fearful, uncertain, or doubtful about doing anything. Therefore to say he was spreading FUD is kind of out in left field, unless of course you didn't know what FUD meant and therefore assumed it was some hip Slashdot techno geek way of saying misinformation. While I can see you being out in left field, it's more likely to me that you just didn't know what FUD meant.
A troll is a person who posts with the sole intention of being disruptive. Someone needs to be pretty blatantly rude and offensive (you're almost there) to slap them with the troll card. Otherwise you just sound like an ass who's being rude and offensive yourself. If the guy had said something like, "Too many ignorant morons on Slashdot think they are lawyers. In reality the law is much too complex an issue for simple minded techies and trekies to understand." then I'd agree that he's obviously just trying to stir up trouble. Although he did strike me as a pompous attention whore who was yelling "Look at me! I know law!" way more than he was trying to clear anything up, he didn't say anything that would incite impassioned replies rebuking his attack on our way of life. Therefore he was not a troll.
Get a grip. Don't have a meltdown over such trivial things. Most of all, be damned sure you are right before you go flying off the handle to tell the world they are wrong. If you do decide they are wrong and want to call them names, make sure you call them the right names.
While "Darl in Jail" (TM:) sounds logical to many (at least many /.-ers) I suspect it wont happen: he either die early (from enjoying his fortune fast while he still got it), relocate somewhere else or ... there is nothing to put him in jail.
SCO may go to bankrupcy but I think he's that kind of person with some golden parachute alredy deployed. And IMO, justice works differently for rich people. (try imagine some Little Self Employed Joe Average Without Huge Cash Reserves doing such stunt as SCO with just one lawyer ... suing IBM, suing Novel, suing all those other big companies ...)
hany
Louisiana, following French tradition, is different I understand. But your federal system goes with the majority.
Is there a running apology letter to EV1 for misinterpreting their involvement in all of this? It sucks that they will not be able to recoup the $800K in blackmail. It would be worse if everyone forgot they were victims.
Having to work for a living is the root of all evil.