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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.
...
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.
...
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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LOL. SCO: The lawsuit company!
Are the SCO insiders still dumping stock?
Is the editor of Jokelaw still on the lam? What do they have to hide?
Nice slant. She's back, but another person is still doing most of the posting.
What do they have to hide?
GE, please post your real name, address, telephone number and other contact info. If you don't want to, then what do you have to hide?
Pay attention!
Scoreboard: IBM - 700000, SCO - 326
So much for those millions of lines of SCO code IBM was infringing on, eh?
I've offered those that accused me of working for Microsoft or Sun a $100K+ wager to put their money where their mouth is. No takers yet, are you interested?
That obviously could impact millions of other lines, but I'm sure you'll just keep slugging the Jokelaw koolaid than understand the implications.
Are you offering her 100K to come forward and prove she does not work for IBM?
Simply demonstrating there are ways of putting such claims to rest. Running and hiding as she/he/it did lend validity to them instead.
Are you going to offer her 100K to come forward and prove who she is and who she works for, that seems to be what you would consider to be a fiar price..
YOU FIRST.
You can slam Groklaw all you want, but you never cite any factual inaccuracies. You just go for the personal attacks, like a spin doctor or dirty politician. Or stick you fingers in your ears and go "Lalala" like a child.
The saddest part of IBM vs. SCO is Novell is first in line. By the time Novell is done picking apart SCO there won't be anything left for IBM. I was looking forward to seeing IBM vindicate itself in court so we could watch you explain how everyone else is wrong but you. Or maybe you'll just choose to not show up that day.
Don't worry, you won't be harassed with subpoenas if you choose not to post here. But we might have a party in your absence.
You haven't been reading the transcripts and filings. The lines are spread throughout Linux and almost all are non-copyrightable header files due to the Feist decision.
SCO was asked LONG ago to produce its "over a million lines of code" (Quote from Darl McBride) that was in Linux, with an offer to immediately remove them if SCO could show it has copyright for them. SCO never did this action to mitigate damages, which is standard conduct in a copyright case. A plaintiff failing to mitigate damages is a no-no, shows bad faith and an intent to artificially drive-up damages.
And now we know why -- they have nothing.
And then there's the fact that SCO itself released this code under the GPL when it was a Linux company (and even for a while afterwards). And over estoppel they try to say "But that was Santa Cruz, not us" but that doesn't work. Successor-in-interest means not only that you get to bring suit based on your predecessor's contracts (as SCO has taken advantage of), but that you also inherit the other actions and liabilities of your predecessor.
but I'm sure you'll just keep slugging the Jokelaw koolaid than understand the implications.
Sorry, but we're too busy learning the facts of the case by reading the actual transcripts and filings at Groklaw to worry about koolaid. That's the reason you are always soundly defeated by the facts when it comes to this subject.
Or do you make the claim that Groklaw modifies the filings and transcripts to try to make SCO look bad?
Sure I have, like when Jokelaw kept insisting the denial of service attacks against SCO's website weren't even happening at all much less coming from anyone in the Linux "community" just to have Eric Raymond come out and admit they were, not that anyone should have been surprised. Even several of the original posters like Br3n (?) got fed up with the inaccuracies and left, and when I pointed out lies my posts were pulled and I was told quote "this site does not allow debate". Even other open source advocates have pointed out inaccuracies, if you're not aware or too brainwashed to admit it don't blame me, do a simple search for "groklaw wrong" or similar and see what all comes up.
The funniest thing of all was when Linus Torvalds himself showed up and got into such a heated disagreement PJ threatened to ban him, then told him her mother preferred Windows LOL.
Well at least you got one thing right LOL, it is spread all throughout Linux but I just did a seach of Groklaw for Feist and only a half dozen hits or so even came up, which appeared to be related to phone books being sorted alphabetically. I'm sure you believe that magically applies to unique header file names and definitions simply because it appeared on Jokelaw, but none of what I saw was halfway convincing, and I even trust Jokelaw more than I trust anything you're now about to spew.
Some bellyaching about a DOS that had nothing to do with IBM or Groklaw, some vauge complaints about inacuracies by readers who packedup and left?
The shouting match with Linux concerned the GPL v.3, so that has nothing to do with the SCO case.
Whoever is paying you to astroturf isn't getting their money's worth.
It shows Jokelaw is full of BS, including even providing excuses and protection for illegal hackers. Search any engine for "groklaw wrong" I said, but if you want an example of where Jokelaw blew the facts of the case here's one right here:
http://www.groklaw.net/article.php?story=20040428235932742
Meanwhile here were the facts, posted from a more reliable Linux supporter, who still failed to call Jokelaw out for their BS:
http://www.eweek.com/article2/0,1759,1581586,00.asp?kc=EWNKT0209KTX1K0100440
ping
It appears that Feist is new to you then. It relates because SCO claimed originality of work for sorting the standard data that appears in the header files (e.g., lists of error abbreviations required to be POSIX compliant). Feist said that the sorting of the names in a phone book doesn't represent the creativity necessary for a work to be copyrightable, and that applies here.
I'm sure you believe that magically applies to unique header file names
Titles, and therefore file names, cannot be copyrighted. I don't think even SCO was dumb enough to propose that their file names were copyrighted.
but none of what I saw was halfway convincing
You didn't have to search Groklaw. You just needed to do what I did, which was read the court transcripts from this week.
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