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

Re:Claims?

[Channard]

My guess is SCO didn't expect it'd go this far. They were hoping they'd get settlements, no matter how minor, from the companies they were taking action against. In the same way that companies often settle out of court when a person sues them, just to avoid the potential legal costs of the trial - no matter whether the person suing is in the wrong or not.

Re:It just me, or does this read like spam?

[Servo]

It WAS spam.

Re:the US system

[Urgru]

U.S. and European cases are apples and oranges. The American and British legal systems grew out of English common law and are heavily constrained by precedent, a principle known as stare decisis . Civil law systems - most are derived from or similar to the Napoleonic Code - recognize some precedential "super cases" but generally allow a judicial official to rule without regard to past decisions. This makes is possible to dispose of some matters more quickly, but you'll also see some things litigated over and over again that aren't repeated or end very quickly on a motion to dismiss (pursuant to a prior, precedential ruling) in the U.S. common law system.

Judges sometimes allow things to "drag on" in order to build a solid record for summary judgement (reducing the complexity and likelyhood of appeals) or establish a strong precedent for other courts in their district/circuit faced with similar issues in the future. A single thoughtful ruling in the U.S. can stand for decades and become a cornerstone of law. By way of example, a 1970 district court ruling (Georgia-Pacific Corp. v. U.S. Plywood Corp.) serves as the basis for royalty determinations in pretty much every patent case in America. The SCO/IBM litigation may be long, but could ultimatley produce a seminal opinion that influences contract and copyright cases for years to come, which couldn't happen in Europe.

Misuse of copyright

[Anonymous Coward]

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.)

Don't need actual code copying

[cfulmer]

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.

Re:Don't need actual code copying

[augustz]

Critically for SCO however, the expression of the idea must be in code form. The computer does not run on comments.

So even if they are chasing expressions, they do need to point to actual code that implements the expression of the idea they are claiming was stolen, and then prove a bunch of other things. They seem to have had a very very hard time doing this.

By most accounts, and despite the hype of their claims that code was literally copied and that they have copyright claims on millions of lines of code, this part of the case looks very weak. This is actually an IBM counterclaim, as SCO dropped most of their copyright claims, but IBM said, wait a minute, we actually want to finish litigating this.

Re:Don't need actual code copying

[cfulmer]

Don't generally respond to AC's, but I'll make an exception here.

Uh, no, I'm not. I'd point you to, for example, http://www.edwardsamuels.com/copyright/beyond/arti cles/ideapt1-20.htm for a decent overview. Look for "Learned Hand" and check out some of the cases, especially Kroft v. McDonald's.

Re:Don't need actual code copying

[Eggplant62]

What SCO relies on as evidence of code copying is their employee Sandeep Gupta's Redacted Declaration, in which he details what he believes to be the major copying offenses. However, Gupta's analysis of the code, as rebutted by Brian Kernighan, doesn't exclude materials that SCO couldn't claim copyright over, such as code that is mandated by standards and common industry practices, materials which have already been placed in the public domain, and elements of code over which SCO couldn't claim ownership. Also, IBM claims that they have received from Caldera licenses to use the code.

IBM's Summary Judgment motions are works of art. They're clear, they're concise, and I cannot see how SCO could squirrel out of having their entire case tossed away like so much garbage. I'm looking forward to the 25th of this month as we'll finally see what the SCO weasels try to pull to keep this whole farce alive. I expect to be laughing like a hyena as I read those memos.

Brief Summary

[UnknowingFool]

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.

Maybe IBM has also slowed progress.

[Anonymous Coward]

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

Re:Claims?

[Anonymous Coward]

According to the consensus here on Slashdot, I thought the purpose was to drive SCO stock prices up so the executives could pump and dump, meanwhile getting funding from Microsoft so that they could stall and keep the whole thing in court as long as possible so that CIOs would be nervous about Linux.

Redhat's suit against SCO in fact specifically makes that allegation, though they don't really have a cause of action, so it's really just color commentary.

IBM may be the biggest of SCO's legal opponents, but Redhat and Novell are pressing Lanham Act claims, which can in fact carry criminal penalties against individuals. SCO may likely go chapter 7 (liquidation) after IBM is through with it, but the personal troubles of Darl McBride and Ralph Yarro appear to be just beginning.

Sometimes Schadenfreude is just fine by me >:)

It's the lawsuit we had to have

[Vryl]

[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!