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."

Comments

The SCO mess is almost over

[Animats]

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:

• 17-Mar-06 Close of All Remaining Discovery (DONE)
• 19-May-06 Initial Expert Reports (DONE)
• 17-Jul-06 Opposing Expert Reports (DONE)
• 28-Aug-06 Rebuttal Expert Reports (DONE)
• 22-Sep-06 Final Deadline for Expert Discovery (DONE)
• 25-Sep-06 Dispositive Motions Summary Judgment Motions (DONE)
• 13-Oct-06 Responses to Requests for Admissions (DONE)
• 25-Oct-06 Oppositions to Dispositive Motions Summary Judgment Motions
• 24-Nov-06 Reply Briefs on Dispositive Motions (Reply Memoranda)
• 12-Jan-07 Rule 26(a)(3) Disclosures
• 19-Jan-07 Final Pretrial Order
• 22-Jan-07 Deadline for Exchanging Proposed Jury Instructions
• 26-Jan-07 Motions in Limine
• 30-Jan-07 Special Attorney Conference and Settlement Conference
• 05-Feb-07 Oppositions to Motions in Limine
• 09-Feb-07 Reply Briefs on Motions in Limine
• 26-Feb-07 5-week Jury Trial

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.

Serious mistake in the article about the law

[Anonymous Coward]

The article says that the penalty for copyright misuse is forfeiture. This is not true at all.

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.

re: Serious mistake in the article about the law

[DrJimbo]

Did you even bother to read the fine memo by IBM? On page 43 of the second pdf, the IBM lawyers say:

V. SCO HAS MISUSED ITS ALLEGED COPYRIGHTS
SCO's infringement claim should also be rejected because SCO has misused the copyrights and therefore is not entitled to enforce them.

IBM's lawyers follow this up with five pages of discussion and explanations including copious references to previous cases all of which (they claim) back up their statement.

The article provided and accurate summary of IBM's misuse of copyright argument. It seems that you disagree with IBM's lawyers on the proper sanctions for misuse of copyright in this particular case. I believe that IBM's lawyers are lawyers and are very much trained in the law. They are also intimately familiar with this case.

So who should I believe? IBM's Nazgul or an obviously uninformed anonymous troll on Slashdot. H'mmm ... the lawyers or the troll? A tough call, but I'm going to side with IBM's lawyers on this one. Of course the only opinion that really matters is that of the judge.

The level of bogosity and FUD in your post is extremely high. Since you seem to imply that you yourself are a lawyer and are trained in the law, perhaps you should have signed-in to post your comment so that you could use it as part of an application for a job at BS&F, the law firm representing SCO. On second thought, it occurs to me that perhaps you are already working for them.

Re:Brief Summary

[elronxenu]

Eh? It's in the document very clearly.

1. SCO has no evidence of improper action by IBM
2. IBM has a license to use all of the Linux code (this covers any Unix code which may have been put into Linux by 3rd parties)
3. SCO cannot pursue any claims because they knew what was in Linux years before bringing suit
4. SCO cannot prove substantial similarity between Linux kernel and System V
5. SCO has abused its copyrights (if it even has any) rendering them unenforceable.

Re:Don't need actual code copying

[DrJimbo]

While it is true that copyright can be violated without literally copied code, your comment seems to overlook the context of CC10, which is extremely important.

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:

Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'it's in there somewhere, you figure it out.'

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:

The particular lines SCO has identified as allegedly copied are a scattered and fragmentary collection of define statements, data structures and function prototypes, not qualitatively different in form or character or content or their individual importance from the many thousands of lines of other interface code. (ex 215 P37) Nor is their any apparent pattern, regularity, consistency, or cohesiveness to the accused code; it is scattered throughout the files, sometimes only a line or two in a file

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.