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IBM Asks Court To Declare Linux Non-Infringing
A Cyclic Graph writes "We finally have a redacted version of IBM's Reply Memorandum in Support of Summary Judgment on Counterclaim 10 in SCO v. IBM. In short, IBM is asking the Court to declare that Linux doesn't infringe upon any of SCO's purported intellectual property. This document is the last word on that matter until the Court either declares there to be no doubt that Linux is free of infringement, or decides that that issue has to be decided by the jury. In their brief, IBM points out that SCO puts forth a convoluted set of non-answers referencing each other to disguise it's inability to answer IBM. Their set of cross-references is so complex that Groklaw readers graphed the claims to make what little sense of them they could."
It reads like the Pamela Jones version of an Andrew Dice Clay monologue.
Lacking <sarcasm> tags,
the NPG electrode was replaced with carbon blac
That graph is the very image of the mighty Flying Spaghetti Monster! Seems like he will soon touch SCO people with His noodly appendage. That explains why SCO called Linux people pirates tho, seems like it was some kind of flattery, or something like that.
> Their set of cross-references is so complex that Groklaw readers graphed the claims to make what little sense of them they could.
*deadpans* Honestly, that doesn't mean much--Groklaw readers will graph anything.
*clicks on link*
Oh, now. See, it's only about nine references deep. (Unless you get caught in an infinite loop between documents 27 and 187.)
That's nice and all, but what are all those little circles, lines, and arrows for?
What?
Go look at the latest postings on Groklaw. There is a *ton* of redundancy between the various filings, but that's legal wrangling for ya. Anyway, if there was ever a time to actually go and read through this stuff, now's the time. I personally recommend the transcripts of the lawyers arguing the motions before the judge.
These filings show that IBM sees this whole thing was a baseless land-grab effected by a change in management. The estoppal and waiver arguments are so convincing and indisputable that you'd think a stock-holder lawsuit would be forthcoming. I mean, both Caldera and Santa Cruz had significant Linux business for significant periods of time. Presumably the shareholders held stock in part because of this. Apparently not enough to get rid of the board and management upon commencement of these shenanigans, but hopefully enough to make some noise once a verdict comes down.
In a similar vein, did SuSE stock get converted to Novell stock, or were they bought out with cash? If it got converted, then former SuSE stock holders may very well file a suit for the MS deal. Overall, in both cases, in seems curious that the stock holders seem helpless. If these companies were traditional F/OSS enemies, there'd be no surprise, but will people who bought stock in a Linux company really support being a traitor? I mean, really, these aren't people who bought stock in an oil company or GM. It's like investing in a solar power company or something you do at least in part for the principle of it.
SCO has no interest in a timely end to this trial and I question their ability to cover IBM's costs. Seems to me like SCO is screwing IBM's shareholders.
IBM does not really benefit is suing. SCO is broke. What are they going to get?
Engineering is the art of compromise.
from the good 'o days of "Hunt the Wumpus". http://en.wikipedia.org/wiki/Hunt_the_wumpus/
I have not seen IBM make this claim. What IMB has stated is that the 300-odd lines of code identified by SCO as infringing lack the originality required for copyright protection. Most are comments. Many of the remaining are #DEFINE statements in c language header files, the kind of stuff previously established in common law as unqualified for copyright protection.
Consider this:
I am a man. (copyright Gary Dunn, all rights reserved).
I could claim it, but no court would uphold my claim.
Now, go relax and unwind your brain. Software is generally recongnized as subject to copyright protection; there are specific portions of law which apply specifically to software. Don't worry, the GPL is not going to die.
Gary Dunn
Open Slate Project
I wish ... one could see such graphs ... for statements made by politicians.
Unfortunately, that cannot be mapped in three dimensions.
When our name is on the back of your car, we're behind you all the way!
"Without copyright the GPL would be unenforceable. It would also be unnecessary."
Even in the absence of copyright, there's no guaranteed way to get your hands on proprietary source code. Given the quote and this fact, it seems mighty clear to me that the freedom the FSF is interested in enforcing is the freedom to not pay for software.
Slashdot - where whining about luck is the new way to make the world you want.
No that wasn't the argument. The argument was SCO claimed one of the reasons that they terminated IBM's irrevocable contract was that IBM failed to protect the trade secrets of SysV. Later SCO abandoned that claim as they admitted that SysV had no trade secrets as most of the "methods and concepts" that were supposedly trade secrets had long ago been exposed through books and seminars and classroom teachings which AT&T and its successors did not oppose.
Well, there's spam egg sausage and spam, that's not got much spam in it.
Finally, I got that cloud to find someone else to hover at!
"-Who said sit down?!"
-- S. Ballmer @ MSDC 2003.
"Without copyright the GPL would be unenforceable. It would also be unnecessary."
Completely untrue.
Without copyright, companies could (perhaps would have no choice but) release binary-only software with strong "product activation" which could take a while to crack. The next version of Microsoft windows and all future propriatory software would require hardware TPM. Hardware manufacturers would stop documenting anything at all, because they have no other protection for their designs.
And they'd be completely free to take and modify previously open-source code to do it.
Without any copyright protection, OSS would be dead in fairly short order.
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Indeed, you, like all mankind, will be driven insane. And eaten in good and painful time. This image is none other than that of one of the Elder Gods:
"In his house at R'lyeh dead Cthulhu lies dreaming."
Read http://news.com.com/SCO+seals+deal+for+legal+expen se+cap/2100-7344_3-5440361.html
The lawyers clearly have a vested interest in dragging this case out and, being a good family man, why should Darl complain?
Engineering is the art of compromise.
I am a man. (copyright Gary Dunn, all rights reserved).
I could claim it, but no court would uphold my claim.
True, I believe that claim is something you have to prove in some other way.
Reading the filings you can see why some lawyers cost so much. At the same IBM's lawyers building an almost invincible legal position on every one of their claims, they take huge swipes at SCO's claims. They point out flaws in SCO's arguments and point out when SCO has failed to address an important point. No detail is forgotten even the little detail of SCO's use of cross referencing to hide their lack of evidence. Unfortunately for SCO's lawyers, they didn't have much in the way of evidence and are reduced to lawyer's tricks.
Groklaw is hosed right now but there was one moment in the March 7th transcript that is indicative of the case. SCO's Brent Hatch is referring to an IBM document. IBM's lawyer, Amy Sorenson, reminds the court that the document is marked confidential and trying to work out an agreeable way of handling it whether it meant clearing the court room. SCO responds that IBM could waive the confidentiality. The court interjects noting that IBM wouldn't have mentioned the confidentiality if they wanted to waive it. While the judge and Ms. Sorenson continue to discuss how to best proceed in terms of procedure, SCO's Hatch begins to argue that nothing in the document (in his opinion) should be marked confidential. Ms. Sorenson responds with a "that's your opinion" and says as long as the document isn't directly quoted, IBM is satisfied with SCO referencing it in open court. IBM and the court are working on a case. SCO is offering red herrings.Well, there's spam egg sausage and spam, that's not got much spam in it.
the creator of the graph could have done a better job, in the top portion which is a tangled mess, if my count is correct, there are 56 edges (counting the loops between 233 and 222, 27 and 187 and as one) and 43 vertices, Eulers corollary states that if |E| = 3|V| - 6, that is 56 = 143 (even if my count was off a bit this is clearly true) then that can be drawn on the same plane (no intersecting lines)... I didnt take the time to find a good way to redraw it, but I have proven it could be done... This depiction makes it look overly complicated (not that it isnt complicated enough)
The BSD license allows for what you describe, it's "truly free", in a sense, to my knowledge. It still exists, so OSS would not be dead. Now, would it be more or less dead? I'm not sure, but I think people would have been upset all the same, so would they have formed groups that upheld the "lets keep everything free and open" attitude, or would they have found some other solution? Using the law to enforce an anti-monopolistic idea seems to be a good thing, though. In the real world, Capitalism seems to require anti-monopoly laws to keep things in check, otherwise it seems to me it is a failed system. Software is much harder to destroy/control/monopolize though, so it would do much better than material businesses in a completely open economy. It's really hard to think about what life would be like in such an open system, and where we'd be at in terms of technology and software. Perhaps people would have found some interesting ways to fight back under such a system in order to keep things more open and competitive and pro-consumer.
Promote true freedom - support standards and interoperability.
Is it not possible that when IBM talks of "THE SYSTEM V WORKS", they are talking about the specific works that SCO allege that Linux infringes upon?
How big would the document have been without all the redacted sections.
Here is a snip for example;
"When all is said and done, SCO's claims of infringement relating to the Linux kernel
SECTION REDACTED
concern a mere
SECTION REDACTED "
Sometimes I think I would have liked to have read the unabriged original to see what was left out.
The truth shall set you free!
Too bad you didn't get modded up - you're exactly right. Buncha noobs, anyways! ;^)
Weaselmancer
rediculous.
BSD aren't currently faced with supporting completely undocumented and intentionally obfuscated (TPM-style) hardware.
In a copyright-free world, it could fall either way. MSFT might become insignificant and the rest of the world become more open. Or MSFT might survive by leveraging TPM as an alternative to copyright, with the help of hardware manufacturers who would rather sell to Microsoft's 90% market than OSS's 10%, and conveniently kill off the OSS community. BSD too.
We don't need to wait for a copyright-free world anyhow; Microsoft's big push towards Protected Media Path and TPM has little to do with protecting the MAFIAA companies, and much more to do with pushing hardware manufacturers to choose between Microsoft and FOSS by making it much harder to support both.
455fe10422ca29c4933f95052b792ab2
In internal documents, SCO developers acknowledged that "
SECTION REDACTED
The mere fact that some or all of the 2.4 kernel may have predated SCO Linux 4.0 does not mean that
SECTION REDACTED
If the term
SECTION REDACTED
then sections of the JDC assignment provisions would be rendered superfluous. As stated, the JDC
SECTION REDACTED
If SCO were correct that
SECTION REDACTED
would be rendered superfluous because SCO's reading of the
SECTION REDACTED
would necessarily exclude such materials from assignment.
Wow, why was this document chopped to bits? Anybody know?
The truth shall set you free!
Perhaps with a nice chianti.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
Not likely.
BTW while you hunt me, I'm fucking your sister.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
#define MAINE 1
#define VERMONT 2
#define NEWHAMPSHIRE 3
#define ALASKA 50
1) It is not code (it doesn't yield executable instructions),
2) It is completely obvious and there aren't really any other reasonable ways to write this,
3) It was required to keep the same integer values for #define's like EPERM in order to maintain compatibility across software and POSIX OS's, an effort and goal that SCO itself promoted,
4) SCO doesn't have to rights to these #define's anyways, having long been relegated to the public as part of ancient UNIX/AT&T history,
5) SCO doesn't own the rights to System V anyways, Novell still does...
"Who's the more foolish: The fool, or the fool who follows him?" - Obi-Wan Kenobi
When our name is on the back of your car, we're behind you all the way!
Reading the filings you can see why some lawyers cost so much. At the same IBM's lawyers building an almost invincible legal position on every one of their claims, they take huge swipes at SCO's claims. They point out flaws in SCO's arguments and point out when SCO has failed to address an important point. No detail is forgotten even the little detail of SCO's use of cross referencing to hide their lack of evidence.
IBM is represented by Cravath, Swayne, and Moore, and that's how Cravath works. They have a very organized staff checking everything the other side puts out. Everything goes into a litigation support system (Cravath was the first law firm to use one, and it was developed by IBM for a famous IBM case). At least two different lawyers check over everything. One of Cravath's slogans used to be "For those must-win cases". Cravath often wins simply because the other side makes mistakes, and they don't.
All this is incredibly expensive, but it works.
Obviously Linux in total is a superset of IBM's contribution to Linux. IBM probably doesn't have standing in the court to ask for a declaration covering the whole of Linux, and if they attempt to do so, that is likely to cause the entire motion to fail.
If, however, IBM wins this Partial Summary Judgement motion, as they may well do, then this is still an extremely important result for linux. Unlike the poster who recommended reading the oral arguments, I recommend skipping the oral arguments and go instead for IBM's written motions and briefs. They are very well written and logical.
IBM constructs their motions as a form of logical-or. If the Judge accepts $REASON1 or $REASON2 or $REASON3 then the judge must rule in IBM's favour. So IBM offers multiple concurrent chains of logic supporting their case. The judge needs only to accept one of them, in order to rule for IBM. But each $REASON is fully detailed - supported by facts, evidence, legal argument, case history precedents.
SCO's filings on the other hand, are like a shell game. It's hard to pin them down to facts. They pretend to be Caldera and Santa Cruz and even AT&T when it suits them; at other times they treat them as different entities. Their answers frequently say "please refer to some other answer", and (as this latest IBM filing says), SCO's replies don't really answer the question or dispute the fact, they raise some other issue or introduce non-relevant assertions.
All in all, it's most entertaining.
I'm not a lawyer and have difficulty understanding Legalese, but doesn't this sort of orchestrated fictionalization and avoidance of answering questions qualify as some kind of contempt of court? It struck me that SCO's attorneys had no respect whatever for the judge or the process. Redacted to its essence, I could hear a snotty voice intoning, "NYAH-nyah-NYAH-nyah-nyah!" Or does the judge have to put up with this kind of bratty behavior?
... or charge themselves for Linux licenses.
Engineering is the art of compromise.
What makes you think that that crippled binary-only malware with the activation codes is going to win in the marketplace against proper free open source software that comes with source code and doesn't attack the user, and runs on cheap commodity hardware instead of your untrustworthy hardware platforms? What you're saying is that proprietary software will become worse, and you seem to think that'll magically make proprietary software sell more.
"Hardware manufacturers would stop documenting anything at all, because they have no other protection for their designs."
Hardware interfaces aren't *copyrighted* now, nor can they be. You can't put a copyright on the information needed to make your hardware talk to software - such information would fail the 'abstraction/filtration/comparison' test in US copyright law, as being 'dictated by externalities'. Sure a specification might be copyrighted, but the facts that it contains aren't. Hardware manufacturers nowadays either keep their interfaces secret, or use patents, not copyright law.
"Without any copyright protection, OSS would be dead in fairly short order."
BSD has next no copyright protection worth the name, and it hasn't died yet after 15 years or so. Netcraft does confirm that it is dying though...
What makes you think that that crippled binary-only malware with the activation codes is going to win in the marketplace
That's basically what they're selling now and still seems to be doing OK.
Hardware interfaces aren't *copyrighted* now, nor can they be.
Well, designs are copyrighted to some extent. Methods are patented. Quite a lot of it is still trade secret. It's hard to guess how this would change in a copyright-free environment.
BSD has next no copyright protection worth the name, and it hasn't died yet after 15 years or so.
That's true. But if most commodity (cheap) hardware got locked down and was undocumented I think they would be in trouble.
455fe10422ca29c4933f95052b792ab2
"Without copyright the GPL would be unenforceable. It would also be unnecessary."
Completely untrue. . . . Without any copyright protection, OSS would be dead in fairly short order.
I don't think we're appreciating the enormity of the idea of no-copyright. We need to analyze the idea from first principles. If there is no copyright on software (and let's expand that idea to include no patents or other forms of IP either), then there is no legal barrier to anyone taking any software and doing whatever they please with it.
In the zero-protection scenario, would anyone produce software? Yes, of course they would. Software is a tool for performing tasks. Having it allows a user company to perform tasks faster or better. User companies need software to efficiently order supplies, manage customer orders, and bill customers (to name just a few of the more universal tasks).
Would the lack of legal protection discourage companies from publicizing the software they paid to produce, allowing their free-riding competitors to gain the advantage of it without paying? Perhaps, but no more so than with OSS today (the free-riding competitor need not contribute to OSS to utilize OSS).
Might closed software creators take publicly-known software, add to it, and sell it in closed form? Certainly, but they would have to maintain actual secrecy of their additions, since they would have no recourse against anyone who published those additions. Once a piece of closed software was published, there would be no rule against using it. Further, many user companies might decide that they didn't need the closed additions.
The things that could be reliably sold by software companies in the zero-protection scenario are the things that can be sold in OSS today--services, mostly.
Net, in the zero-protection scenario, the volume of publicly known software is likely to increase as fast or faster over time as the volume of OSS increases today.
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
I hope he makes SCO pay for every freaking penny of the court's and IBM's time. At least until they dry up and blow away. That would suck for SCO stockholders, but anyone left holding SCO is (IMO) nuts, anyway. SCO deserves to die a public, humiliating death at this point. The principle need to spend a long time in public stocks, maybe on a flatbed trailer that travels around the country (as) as punishment and (b) as a warning to similar scumbags.
"That's basically what they're selling now and still seems to be doing OK."
But we're not talking about now, we're talking about a hypothetical copyright-free future, remember?
That means Microsoft doesn't get to charge those $billions worth of license fees, which means it doesn't get to spend $billions on making it's slightly shinier newer windows versions. The hypothetical future would pit the open source software, more or less developed by the internet like it is now, for nothing, versus the binary-only poor-value crippled secret software, which is necessarily developed by a reasonably well-paid clique of people, and they need to collect what cash they can on their code before someone finds a crack and it's free to all.
In a hypothetical copyright-free world, the fight is not open-source software versus today's expensive proprietary software. It's open source versus nasty binary-only freeware.
"But if most commodity (cheap) hardware got locked down and was undocumented I think they would be in trouble."
If we're going to play at bizarre non-sequiturs then I much prefer:
"But if Netcraft confirmed that BSD is dying, then I think they would be in trouble"
or
"But if Theo De Raadt turned into green cheese on the same day as they abolished copyright, OpenBSD might have a bit of difficulty."
I think more and more people will just stop trying to access media that tries to force them to use specific players. DRM is annoying for consumers. I think that force will keep MS's crap, and the crap coming from other companies, a nitch market. We can only hope.
Promote true freedom - support standards and interoperability.
In a hypothetical copyright-free world, the fight is not open-source software versus today's expensive proprietary software. It's open source versus nasty binary-only freeware.
If copyright had never existed, perhaps.
In a world where copyright is abolished overnight, while Microsoft already has 90% marketshare and Trusted Computing is fast becoming reality, I wouldn't be so confident. Right now (ignoring copyright) you can duplicate DVD's of Vista as much as you like but getting it to install and run (and keep running) is a little trickier. But not impossible, because the code is unencrypted and runs on commodity hardware. If Microsoft could rely on TPM hardware and had a real incentive to do the job properly (like not being able to rely on copyright at all) I think they could make it damn near impossible to have Windows run without paying for it.
I don't think it's terribly likely, but I think it's at least possible if Microsoft could persuade enough hardware manufacturers to play along, and do a good enough job that each version of Windows was reasonably outdated before it was cracked.
455fe10422ca29c4933f95052b792ab2
Oh hang on, I get it..
Your niece's father's sister was as hamster and your late aunts' brother smelled of elderberries..
( Now you try to blame me on saying anything.. )
I assumed that what they were claiming is that System V's differences from the preceding systems were too trivial to warrent copyright protection. When you own copyright for all the code, maybe sys V is different. If I bought the rights to Winddows ME without the rights to Windows 98, it would useless. I've submitted patches to projects that were technicaly spelling or gramatical mistakes is that code ownable?
Apocalypse Cancelled, Sorry, No Ticket Refunds