Posted on 03/16/2007 7:51:14 AM PDT by N3WBI3
Here is the transcript of the March 7th hearing in SCO v IBM, the last of the summary judgment hearings transcripts. Thanks yet again to Chris Brown for arranging to obtain the transcripts.
On this day, Kimball was quite busy. He heard several motions, all the ones left over from the first two hearings on March 1 and March 5:
* IBM's Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement (Tenth Counterclaim) (PDF) -- asking for a judgment that the Linux kernel does not infringe copyrights owned by SCO * IBM's Motion for Summary Judgment on its Claim of Copyright Infringment (Eighth Counterclaim) -- IBM's counterclaim regarding SCO's violation of the GPL and consequent copyright infringment -- (PDF) * SCO's cross motion in which it tries to say it never violated the GPL (if you spin the wording their way) (PDF) and * SCO's motion for Summary Judgment on IBM's Second, Third, Fourth, and Fifth Counterclaims (PDF) -- SCO's motion trying to get SCO off the hook for all the trash talk in the media. On this day, we learn from IBM's attorney, David Marriott that the "mountain of code" SCO's CEO Darl McBride told the world about from 2003 onward ends up being a measly 326 lines of noncopyrightable code that IBM didn't put in Linux anyway.
On the other hand, SCO has infringed all 700,000 lines of IBM's GPL'd code in the Linux kernel.
SCO's GPL defense is of the lip-curling variety and quite funny. And it's also quite amusing to watch SCO try to wriggle out of responsibility for all the trash talk its executives treated us to in its PR campaign.
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In the first motion, we learn a bit more about those 326 lines of code. Of those 326 lines, most are comments, not code. Allegedly, those lines of code infringe 320 lines of Unix code. But they aren't copyrightable, IBM says, because they are dictated by externalities, they are unoriginal and they are merger material. Even if they were protected by copyright, those 320 lines don't result in substantial similarity between Linux and Unix.
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IBM has a right to use all 326 lines. It has multiple licenses (5, to be exact), Marriott tells the court, the GPL for one. There was also a business agreement between Caldera and IBM that also gives IBM a license to use this code and to prepare and have prepared derivative works and to distribute and sublicense and to grant others rights with regard to all 326 lines. It was Caldera that approached IBM to enter into that business agreement, and significantly it was after Caldera knew about the results of the 1999 study by Santa Cruz that showed some similarities between Unix and Linux, similarities SCO found were understandable and acceptable, that Caldera asked IBM to enter into this agreement. That means Caldera, now SCO Group, is estopped from now pursuing any infringement action. That estoppel is on top of IBM obtaining a license by the agreement.
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I'm a big supporter of open source, but I regard anything coming from Groklaw with suspicion these days.
Looks like MS is going to have to sue Linux on their own, no more proxies.
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