Posted on 05/21/2004 3:31:18 PM PDT by ShadowAce
IBM has asked the court for partial summary judgment, a declaration that IBM does not infringe SCO's copyrights by its Linux activities, in its Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement, telling the court that since SCO has been unable or unwilling for so long to show any infringing code, and shouldn't be allowed to now, they request the court to wrap this part of the case up and issue a declaration of noninfringement "with respect to IBM's Linux activities (the 'Tenth Counterclaim')." This is a cross motion, not just a motion, because, as you recall, this is the IBM counterclaim that SCO has asked the court to dismiss or stay pending the outcome of the AutoZone case:
"SCO refuses . . . to disclose its purported evidence that IBM's Linux activities infringe SCO's alleged copyrights, despite two court orders requiring it to do so."2. IBM asked SCO (more than seven months ago) to identify the precise lines of Linux code in which it claims rights, and the precise lines of code in the UNIX software from which SCO alleges such Linux code is copied or derives. Unless SCO can match up the lines of code in Linux to which it claims rights to the precise lines of code in the UNIX software over which SCO claims copyright protection, SCO cannot show copyright infringement.
"3. Based upon SCO's failure to come forth with evidence to demonstrate infringement, summary judgment should be entered in favor of IBM on its claim that IBM's Linux activities do not infringe SCO's alleged copyrights relating to UNIX."
There is, as always, a Memorandum in Support. If they refuse or are unable to back up their allegations, IBM adds, they can't prove any claim of copyright infringement. There is no need for more discovery on this issue, they argue, because SCO already has had access to all the info it needs to prove its claim "and yet is unable to proffer any evidence of copyright infringement." SCO shouldn't be allowed to adduce evidence now. They ask for a hearing where oral arguments can be heard at the same time that SCO's Motion to Dismiss or Stay is heard.
What do I think it means? I think it means that SCO couldn't find anything significant in its deep dive into the AIX code they whined and whined to get, and IBM knows it.
Also, it is a strategy thing. Even if they don't win their Cross Motion, it places the issue before Kimball. This is not Judge Wells, who is familiar with SCO's ways, and they want to be sure he has the whole picture. Also, he seems to be an upright judge, but what if he were not? You always want to box a judge into a position where he sort of can't ignore your position without looking mighty bad. If Kimball was thinking about granting SCO's motion to dismiss or stay IBM's Counterclaim 10, he will have a harder time doing it now. And don't forget one of SCO's arguments is that this counterclaim should wait, if it isn't dismissed, until AutoZone is decided, because that is the true copyright case, and that argument is currently before Judge Kimball. He can't fail to connect the dots now in the SCO shell game, not that he seems to miss anything anyway, but just in case, IBM spells it out for him. That's why IBM asks that this cross motion be heard as the same time as argument on SCO's motion to dismiss or stay the same counterclaim. I surely want to watch SCO dance as fast as it can at *that* hearing, if Kimball grants IBM's request and hears them both at the same time.
In the Memorandum in Support, IBM says that SCO's claims in the litigation and its public accusations "are part of a broader campaign":
"SCO's scheme is to make sweeping claims of ownership to Linux and to tout the strength of its case against IBM publicly, while at the same time seeking to obfuscate its claims and avoid producing its alleged evidence, so as to defer judicial resolution of the matter for as long as possible."
Mr. Blepp's recent interview in Germany is referenced, about SCO's strategy being "not to be forthcoming with its alleged evidence," and quoting his remark that "you don't put everything on the table at the start, but instead you bring out arguments and evidence piece by piece." And then IBM says this:
"Consistent with its strategy, SCO has yet to identify a single line of code from the UNIX software that IBM is alleged to have misused in violation of any of SCO's 'UNIX intellectual property rights', despite two orders by Magistrate Judge Wells requiring SCO to do so. When pressed to identify specific code in the UNIX software that contained the trade secrets IBM allegedly misappropriated, SCO delayed for months in coming forward with the information, and ultimately withdrew its claim altogether. Similarly, with respect to SCO's contract claims, despite months of delay SCO still has not identified the specific code contained in UNIX System V that IBM allegedly misused in violation of its licenses to that software."Of particular relevance to this motion, SCO has also failed to adduce any evidence of copyright infringement by IBM. . . . Although SCO has identified certain materials in Linux to which it claims rights (albeit without the required specificity), SCO fails altogether to show how IBM's Linux activities infringe SCO's alleged copyrights concerning UNIX software. Again, SCO has not ever linked (and cannot link) the material in Linux to which it claims rights to specific lines of the UNIX software over which SCO claims copyright protection and that IBM can be shown to infringe."
SCO tried to point to 160 lines of SGI code once, IBM adds in a footnote, but that code was removed from Linux and SCO has never explained how IBM (or anybody else, for that matter) has infringed any of SCO's purported rights with this code. No discovery was ever needed to decide this matter. SCO has had all the evidence it needs to prove infringement since before it filed, the source code to which SCO claims to hold copyrights and Linux, which is publicly available. Yet it "has been unable to proffer the evidence of copyright infringement..." For that reason, under Rule 37(b)(2) , they should not even be allowed to adduce evidence on this issue.
In footnote 4, IBM tells the court that it "believes . . . that SCO's contract claims are also susceptible to summary adjudication and intends to move for summary judgment on those claims at an appropriate time." SCO claims to have evidence in support of its claims, but it "refused to disclose all of that evidence to IBM":
"In fact, SCO seeks to dismiss or stay IBM's claim for a declaration of non-infringement on the theory that, while the future of the global economy may hang in the balance, the issue of IBM's copyright infringement should be decided not in this case involving IBM, but in the case SCO just filed against AutoZone, Inc., an auto parts company that has had little, if anything, to do with the development of Linux."
Yes, lawyers have a sense of humor too. They are definitely having some fun. Happily, Judge Kimball has given evidence of possessing a similar refreshing sense of humor.
IBM also filed their Memorandum in Opposition to SCO's Motion to Dismiss or Stay Count Ten of IBM's 2nd Amended Counterclaims. We've been publicly accused of copyright infringement by SCO for over a year, IBM tells Kimball. What a waste of resources if we have to now freeze in our tracks until AutoZone is decided, which hasn't even begun discovery and has asked for a delay until we are done here and Novell's matter is finished too. We're ready for a decision now on this counterclaim. Discovery on this counterclaim is done. And besides, SCO's accusations have been against IBM and others, and it wouldn't be just to make everyone wait. SCO is playing a shell game, IBM says, trying to avoid judicial review of this claim, part of its campaign of sowing FUD.
Oh, and by the way, Your Honor, IBM adds with a smile, there is the matter of Red Hat, a case SCO failed to tell you about in its motion. In that case, SCO has moved to dismiss Red Hat's case "in part on the theory that 'the infringement . . . issues Red Hat seeks to adjudicate in this case are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM case pending in Utah Federal District Court." The court denied their motion to dismiss but she did stay the case while the IBM case goes forward. When Red Hat recently asked for a reconsideration of the stay, SCO argued against lifting the stay, saying that "the IBM case [and IBM's Tenth Counterclaim specifically] will address central issues raised in this lawsuit" and "it would be 'a waste of judicial resources' and the resources of the parties, to litigate this case while a substantially similar question is being litigated in federal district court in Utah."
So, follow the pea as we explain the shell game, IBM sums up. In Delaware, they argued successfully that Red Hat should wait for IBM to go first in Utah. Now it says in Utah that AutoZone should go first in Nevada, where AutoZone is seeking a stay pending resolution of this case in Utah. "SCO should not be allowed continually to put off adjudication of its copyright claims." IBM should be granted summary judgment, or in the alternative SCO's motion to dismiss or stay should be denied and Kimball should retain jurisdiction over IBM's 10th counterclaim. We're ready to go, IBM says. AutoZone has only just been filed. So the so-called "first-filed rule" on which SCO relied in its motion, does not support SCO's position. Then IBM has a fine time quoting Darl over and over and over, listing numerous threats and claims that the use of Linux infringes SCO's copyrights, and calling it all a "campaign to create the false and/or unsubstantiated impression that SCO has rights to UNIX and Linux that it does not have." Their FUD includes "making claims that SCO's alleged copyrights to the UNIX software cover material in Linux." They also, IBM adds in footnote 1, amended their complaint to formally assert copyright infringement, in direct response to which IBM filed its Tenth Counterclaim.
After months of discovery and two court orders, SCO still hasn't responded to IBM's interrogatories asking SCO to be specific and present its evidence. If our goal is the preservation of judicial resources, IBM says with a bit of a curled lip, granting our motion for summary judgment would achieve that noble goal. Such a declaration "would effectively resolve the copyright issues concerning Linux in this case, as well as the issues in the Red Hat and AutoZone case." After all, IBM reminds the court, SCO told the Red Hat judge that the stay shouldn't be lifted because the issue of "whether Linux contains misappropriated UNIX code" is "also raised directly by IBM's Tenth Counterclaim against SCO" and so should be decided first.
As for SCO's "first-filed" argument, they offered no cases to support their position and anyway, that rule only applies if the parties are the same in two cases in different districts, so IBM's counterclaim should be considered filed first:
"When a claim that is newly added to an action relates to earlier claims raised in the same action, courts accord the later-filed claim the filing date of the prior pleading for purposes of a motion based on duplicative litigation."
SCO's representations to the Delaware judge in the Red Hat case show they view the IBM case as one involving infringement of SCO's purported copyrights. IBM's earlier filed counterclaims, filed in August of 2003, also concerned SCO's assertions, in its public FUD, which IBM mentioned in those earlier counterclaims, that Linux infringes its copyrights to the UNIX software. The issue came up as far back as March of 2003. IBM's 10th counterclaim addresses that same issue, obviously, but it wasn't the first time the issue came up in IBM's pleadings. The 10th counterclaim relates back to these earlier pleadings going back to March of 2003 and so should be considered filed before SCO's case against AutoZone, which wasn't filed until March of 2004. And anyway, IBM points out, the court has discretion not to apply the first-filed rule.
With that, IBM asks the court to deny SCO's motion to dismiss or stay IBM's Tenth Counterclaim. The Memorandum makes reference to exhibits, which we hope to have for you soon. Some of them, as you'll see, such as SCO's letter to the 1500 corporations, we have published earlier. Note IBM makes reference to SCO's arguments in opposition to Red Hat's request for reconsideration of the stay, which is a pleading we don't have yet but hope to have soon.
You'll notice too that in footnote 3 of IBM's Memorandum in Support of its cross motion, it makes reference to the Novell-SCO dispute over copyright ownership, but it tells Judge Kimball that he need not decide the question of ownership to decide IBM's cross motion. It doesn't matter to IBM who wins that battle. The question is whether IBM's Linux activities violate the copyrights, regardless of who owns them.
SCO Ping
Sorry, I don't read Groklaw, they've been wrong on so many points it's not worth the time.
"Sorry, I don't read Groklaw, they've been wrong on so many points it's not worth the time."
Such as?
Accussing SCO of launching hacker attacks against it's own website, in an attempt to deflect the likelihood they were actually launched by the Linux community, something Eric Raymond later admitted had happened. But they constantly mislead over on that site, they are hosted on servers donated by IBM you know.
We can therefore conclude that your pronouncement is merely another in a series of your blustering attempts to prevent anyone from finding out that all that FUD you were selling in here last year has turned out to be a total scam. The whole thing was just a PR exercise, with a court case as a stage decoration.
I'm sure we'll hear more bluster from you that that isn't so, but who cares.
SCO is toast. The fun part now is trying to guess who Microsoft will slip money to next to throw spears at its opponents. Heaven forbid they should just go off and work on improving their products. Slinging mud and throwing spears at their competitors just seems to be the Microsoft Way. It's as if General Motors hired people to set fire to Fords so they could claim their cars were safer. Microsoft is that kind of competitor. You would claim otherwise, but I propose to offer you up as Exhibit 2 that it is true. By your own behavior you will prove that they do what I say they do. They are liars and thugs; it is the character of the company to be that. Gates must be an interesting guy to have led the creation of such a thing.
One searches the Internet in vain for another corporation that has roaming bands of trolls and thugs who disrupt threads on anything their Satanic Majesty dislikes.
...looks like Computerworld is keeping track of the SCO debacle.
SCO's Linux Fight - Special Coverage
http://www.computerworld.com/news/special/pages/0,10911,2046,00.html
SCO is starting to look more like an ambulance chasing firm than an antique UNIX code company.
Newcomers to the issue who are unfamiliar with the scurrilous tactics employed by Microsoft shills when on a Mission To Mislead need to know that this "hosting facility" belongs to a univserity which acquired the machines from IBM in a donation some years ago... several years before any of this started and before the Groklaw site existed. These machines are part of a facility which hosts literally thousands of web sites on a huge number of subjects.
If you feel that Mr. Eagle's statement was deliberately intended to make you believe that IBM had intervened in some way to benefit this particular web site, you can now rest assured that he was simply trying to mislead you. You can assume that virtually everything he says is of that caliber. More examples will be arriving from his keyboard shortly, we can be sure. The entire repertoire of his Microsoft talking points on this subject are well-known.
INFORMATION WEEK
May 9, 2004
The software maker says Royal Bank of Canada has sold two-thirds of its investment in the company, which is fighting a legal battle to get licensing fees from Linux users.
The SCO Group says the Royal Bank of Canada has sold two-thirds of its investment in the company, which is fighting a legal battle to get licensing fees from Linux users. Royal Bank of Canada sold 20,000 preferred shares to BayStar Capital, giving BayStar more control over the maker of Unix software. The bank also planned to convert its remaining 10,000 preferred shares into SCO common stock.
After the conversion, Royal Bank of Canada will have no equity interest in SCO, other than the common stock, the company said Friday. BayStar will be sole remaining holder of preferred shares.
In October, Royal Bank of Canada invested $30 million in SCO, and BayStar invested $20 million. The money was vital in helping SCO continue its legal battle against IBM and Linux users. In a multibillion-dollar lawsuit, SCO claims the copyright to some of the code in the open-source operating system, and accuses IBM of contributing the proprietary code to Linux. IBM denies any wrongdoing.
INFORMATION WEEK
April 26, 2004
BayStar Capital plans to take back $20 million if SCO doesn't makes changes
By Larry Greenemeier
SCO Group's public aggression toward Linux users and vendors could cost the company a large investment from BayStar Capital. The venture-capital firm says that SCO needs to make changes, which include altering its communications strategy regarding Linux, if it wants to keep the firm's $20 million investment.
BayStar wants SCO to take a more "disciplined approach" in communicating with the public about Linux, a BayStar spokesman says. While the spokesman wouldn't go into detail, SCO's combative stance is unquestionable. President and CEO Darl McBride has publicly declared SCO's plan to systematically sue Linux users who don't pay it licensee fees, and SCO last month filed lawsuits against DaimlerChrysler Corp. and AutoZone Inc., a car-parts supplier.
BayStar also wants SCO to strengthen its management team with people skilled in the areas of intellectual-property management, litigation, and the overall running of a public company. And SCO needs to focus on its year-old lawsuit against IBM, which stands to offer the greatest windfall to shareholders, BayStar says. "We believe that when we invested, there was a strong and valuable asset in the intellectual-property case" against IBM, says the spokesman. "We still believe that SCO has the chance to prevail."
BayStar's threat appeared in a recent Securities and Exchange Commission filing by SCO. A spokesman for SCO says the company is "ready and willing" to work with BayStar to resolve its issues.
Evan Leibovitch, president of the Linux Professional Institute, says any change in SCO's communications strategy won't make a big difference to the Linux community, which has largely ignored SCO's threats of lawsuits. Says Leibovitch: "The Linux community always thought SCO was blowing smoke."
"SCO is toast. The fun part now is trying to guess who Microsoft will slip money to next to throw spears at its opponents."
...excellent items to mention. SCO is indeed soggy, moldy "toast," IMO. There are links to that under the following old news.
Update: Microsoft behind $50M SCO investment (Mar. 11, 2004)
http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,91145,00.html
Another thing that has come out in the mess is that a lot of developers/consultants have shown themselves to be way more intelligent than their thieving ex-bosses. They are going on to perpetuate more of a free market with new competition--something our country sorely needs.
SCO investor wants out of deal
http://www.computerworld.com/governmenttopics/government/legalissues/story/0,10801,92392,00.html
"Linux advocates have criticized it as a proxy investment by Microsoft designed to undermine the credibility of Linux. The news that BayStar now wants its money back was not well received by the market. SCO's stock was down $1.30, or 13%, on Friday."
And even uglier news on SCO,...
Latest SCO News is Plain Weird
http://www.linuxworld.com/story/44809.htm
(down the page)
"And the bank is converting the rest of its preferred stock - that it paid $10 million for - into 740,740 shares of SCO common presumably to dump it on the public market. Presumably too it won't sell the stock immediately since the conversion cost it $13.50 a share, more than double what SCO's been selling for."
So what's SCO worth?
And what of Microsoft's political leaning (a few links for y'all to archive and use again)?
The Bill & Melinda Gates Foundation gave $8.8 million to the Planned Parenthood Federation.
http://www.cnn.com/2000/HEALTH/women/12/11/health.women.gates.reut/
"Microsoft offers source code to China"
http://itmatters.com.ph/news/news_03032003a.html
(removed from major news sites)
Gates: Buy stamps to send e-mail
http://www.cnn.com/2004/TECH/internet/03/05/spam.charge.ap/
Bill Gates against repealing the inheritance tax
http://www.pbs.org/now/transcript/transcript_inheritance.html
"Soros, one of the wealthiest men in the world, promised $15.5
million to defeating President Bush. Also on this list are
Bill Gates,..."
http://www.americasvoices.org/archives2003/CoxJ/CoxJ_112403.htm
(most excellent link so far)
The Left-Wing Billionaire Collectivist Pigs
http://www.newsmax.com/archives/articles/2002/9/25/191020.shtml
(pretty good)
Billionaire Collectivist Pigs on a Roll
http://www.newsmax.com/archives/articles/2002/10/11/171315.shtml
"Gun-Control Group Changes Name, Keeps Agenda"
http://www.cnsnews.com/ViewNation.asp?Page=%5C%5CNation%5C%5Carchive%5C%5C200106%5C%5CNAT20010615a.html
(and Bill is a contributor)
"Is Bill Gates a closet liberal?"
http://archive.salon.com/21st/feature/1998/01/cov_29feature.html
(Bill Gates for gun control, pro-abortion, etc.)
http://vikingphoenix.com/news/madminute/1997/mm970040.htm
(Gates on gun control)
http://www.pbs.org/newshour/bb/law/july-dec97/guns_11-4.html
(more money for gun control from Gates and his father)
"Bill Gates Is No Free Market Hero"
http://brian.carnell.com/articles/2000/12/000046.html
http://www.pittsburghlive.com/x/tribune-review/opinion/datelinedc/s_176864.html
(ah, somewhat good)
Windows XP Shows the Direction Microsoft is Going
http://www.hevanet.com/peace/microsoft.htm
"the changing politics of Bill Gates" (national review, john j. miller)
http://www.findarticles.com/cf_dls/m1282/2_51/53662235/p1/article.jhtml
2002 Feb 2, In NYC protesters of the World Economic Forum turned
out in large numbers. Inside foreign economic leaders criticized
the US for protectionist policies, and Bill Gates and U2 rock star
Bono pushed for increases in foreign aid by rich countries to poor
countries."
http://timelines.ws/days/02_02.HTML
"Software, soft money, and Libertarians"
http://www.seattleweekly.com/features/0039/news-anderson.shtml
[Bill gives money to both sides--whoever supports Microsoft and extreme social left policies. ...includes Barney Frank.]
Client testimonials, Bill Gates in China, Bill Clinton in China
http://www.beijinghighlights.com/testimonials/testimonials.htm
"State-owned Software Firm Ties up with Microsoft China"
http://fpeng.peopledaily.com.cn/200107/07/eng20010707_74398.html
You're more over the edge than even I thought Danger. If that is some frail attempt to accuse me of something akin to satanism you can shove that right up your ---.
Where's you little detective guy when you're pushing your conspiracy theories? I right here right now bet you my complete estate and family inheritance if you feel you can show I am in any way being paid by ANYONE to post on this forum. Take the bet or STFU, you ignorant stooge.
If you don't like Microsoft, buy Apple. Or Sun. Both of these companies could use the business, as foreign freeware like Linux continues to overtake their markets.
http://www.apple.com/powermac/
14 months from the time SCO sued and still no code, and in that time SCO stole IP from 'the book of webmin'... Yea Gorklaw is the one you should worry about..
Redhat is foreign??
"...freeware?" That theft attempt has been tried and stomped on.
Just pay some of the US consultants and developers who know what they're doing with open source GPL'd software, or pay too much.
Actually, some of the more capable Sun hardware is good. I'll give that much. And AFAIK, Sun has been honest.
Having gotten your goat, I thought I would try it sell it on eBay. "For sale, one goat, slightly used," that sort of thing.
But they wouldn't let me. They said your goat had "no measureable value." Go figure.
Maybe if I had a bigger goat. Hence the concern over whether you are a homosexual cannibal. That's the question. We're looking into it. The jury is still out. It's a lot like what you were saying about Linus, except that this time you'll be on the receiving end of a scurrilous accusation instead of being the guy leveling one at someone else.
This may anger you, but what the hell. I've never understood why you loudmouthed Microsoft thugs reserve to yourselves the right to come in here and say all manner of horrible things about people, but then get your pointy hair in a bun if someone shoots back. So if you don't mind, we'll continue to investigate this business of you being a homosexual cannibal, and we'll let people know what we find out.
In fairness let me state that as of now, there is no evidence whatsoever that you are a homosexual cannibal. It's just a theory that needs investigating. It's a puzzle, like the question of who wrote the original linux kernel. There are facts to be assembled, truths to get out. As you said yourself, the jury is still out on this. We can't afford a Ph.D., but we did find some undergrads who will, for a modest sum provided to Pizza Hut in their name, produce a report that documents various things. They won't be true, but so what. The people they quote will deny they ever said such things, but that won't matter either. We'll just make the accusations anyway, and keep repeating them as if they were true. "Aquila chrysaetos and Homosexual Cannibalism: Coincidence or Juxtaposition?" You know how this stuff works; you do it all the time yourself.
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