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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.
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.
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.)
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.
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
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.
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!