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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."
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.
If they can't straight forward answer the questions the case should be thrown out. The judge so far has been pretty smart to call SCO on this kind of stuff. Hopefully the judge calls them on their BS again.
> 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.)
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.
(IMHO)
A circle represents SCO's response to IBM on any one given point.
The number inside the circle represents IBM's claim.
The arrow (including the line) represents SCO's (so called) response.
e.g. the (187) -> (45) in the middle of the image means in response to IBM's claim 187, SCO is redirecting the court to SCO's response to IBM in IBM's claim 45. and so forth.
Its actually a pretty darn interesting ways to represents SCO's bullshit.
IBM does not really benefit is suing. SCO is broke. What are they going to get?
Engineering is the art of compromise.
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
"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.
455fe10422ca29c4933f95052b792ab2
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.
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.
The reasons that I recommended the oral arguments:
1) It's a nice way to get a summary of the argument, the counter-argument, and the rebuttal without wading through multiple filings.
2) As I mentioned, there's lot's of redundancy in each written filing (there's still some repitition in the oral arguments too), but thanks to the time constraints they don't repeat the arguments ad nauseum.
3) Reading the judge's reactions and comments is valuable, I find. Reading the judge when she says (to SCO's guy), "Why are you standing up? You don't get to say anything more." To which he replies, roughly, that he was hoping she'd ask his opinion, which she does not dignify with a response, IIRC, provides real entertainment!
4) Given that they're before a judge, they try and explain things somewhat more simply, with some analogies that don't make it into the written briefs.
5) Given the back-and-forth nature, and putting names with the words, I find it easier to pay attention and keep it all straight. It's also nice to know who says what as you develop a sense of each lawyers' personality, which helps as you read more transcripts.
That said, for the written versions, it's great to read the footnotes. The footnotes always have some of the most interesting material, IMHO. The oral arguments often allude to things which are explained in the footnotes, like *why* the case SCO refers to doesn't support their claim or is "inapposite." Anyway, YMMV.