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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."
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.
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.
It's pretty close to being done here too. The scheduling orders linked on groklaw (last full sched and amendment) have summary judgment oppositions in October, replies in November, and a jury trial starting in February for any surviving claims. If that schedule is kept, the case should be done no later than April. Depending on the outcome, IBM may be entitled to reasonable attorney's fees.
:-)
As for the SCO's claims being fraudulent, as asserted in another response to the parent, that's awfully hard to establish. They may ultimately be dismissed or ruled on summarily but so far as I know IBM hasn't asked for Rule 11 sanctions, which you would normally do in the face of patently frivolous or fraudulent claims and before any meaningful discovery.
I personally doubt that the final SCO/IBM decision will be a groundbreaking and haven't taken the time to read all of the filings because it looks, on its face, to be a relatively mundane suit. I'd like to think that SCO is estopped from making its claims in the first place because they operated a Linux business that distributed the purportedly infringed code under GPL, inducing reasonable businesses (e.g., IBM) to use/market the same code under the assumption that there would be no claim of infringement. The case may very well be decided in a way that creates no meaningful precedent and the court could avoid some of the issues of interest to the FOSS community by, for example, deciding based on IBM/SCO contract provisions w/o discussing the GPL or Linux.
Regardless of the outcome, the U.S. and European systems are so different that it's not terribly fair to compare the District of Utah case with the cases in Germany and elsewhere. We could fairly knock the U.S. courts if an action had been brought and already disposed of in the United Kingdom
--- "DNA helicase kicks more ass than a barrel of highly trained ninja monkeys. Never forget that." - N. Howard
SCO was forced (by the judge) to disclose all possibly infringing code back in December of 2005. All sides agreed that this list from SCO could include methods and concepts as well as literally copied code. But, even for their methods and concepts claims, SCO was required to show where in "their" SysV code these methods and concepts were expressed and then also show where they were re-expressed in the Linux code.
SCO did not do this. Instead, they said that IBM already knew where the "copied" methods and concepts came from in SysV. IBM filed a motion to have all of these nebulous claims from SCO thrown out. The judge agreed with IBM and in her ruling said:
With the methods and concepts claims tossed out, IBM was left to deal with the literal copying claims. Most of these IBM refuted (in a separate memo) because the claims didn't involve any code that SCO even claimed to own. When the whittling down was done only 300-odd lines of "copied" SysV code were left. If you had bothered to RTFA, you would have seen that IBM claims:
You are correct that copyright can be violated without literal copying but that fact is not applicable to the article or the IBM memo the article is discussing. I also disagree with your conclusion that these documents presented by IBM merely make SCO's case "that much harder to prove". IMO, the vast collection of memos by IBM to support their summary judgment motions provide overwhelming proof that SCO's claims are impossible to prove. If I am correct, and there are no legal gaffes, then IBM will prevail in their summary judgment motions.
We don't see the world as it is, we see it as we are.
-- Anais Nin