Penguin PC's are becoming popular, powerful, and persnickity.
Posted on 08/16/2004 6:37:09 PM PDT by amigatec
IBM Goes For the Jugular -- Files Motion For Partial Summary Judgment on Contract Claims!
Monday, August 16 2004 @ 11:16 AM EDT
Here is IBM's Redacted Memorandum in Support of Motion for Partial Summary Judgment On Breach of Contract Claims, filed by IBM on Friday. It's a hundred-page document. As you will see, they are going for the jugular now. Astoundingly, they say that all parties involved in the contract between AT&T and IBM have now provided testimony in discovery that IBM has the right to do whatever it wishes with its own code, contrary to SCO's claims, or as the memorandum puts it, they all provided "unequivocal testimony that the agreements were not intended and should not be understood to preclude IBM's use and disclosure of homegrown code and contemporaneous documents reflect this interpretation of the licenses".
SCO thought it was going to find evidence in discovery to boster its case, but it has worked out exactly the opposite. I haven't finished reading the memorandum myself, because I wanted to share it with you immediately, but it looks like this is the heart of what's left of SCO's case. Everything you hoped IBM would say to the judge, they are saying, including pointing out that Novell has waived any breach, even if there had been one, which there wasn't. If IBM wins this motion, I think I might be in my red dress soon.
Read the rest at: http://www.groklaw.net/article.php?story=20040816111607708
(Excerpt) Read more at groklaw.net ...
Call the Penguins!!
Got Root?? Ping alert requested
Penguin PC's are becoming popular, powerful, and persnickity.
btw - Amiga is almost as cool as Fedora Core 3.
Their site only lists core 2.
SCO SUX
TUX ROCKS.
blessings, Bobo
beta is out. 3 test 1
Got root, and bookmark.
And Lew Mettler has some interesting commentary over at LamLaw.
YaHoo!
City of Bergen in one of the largest Linus migrations in Europe
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And how many times have we heard that now? At least five or six.
I'll admit this latest filing includes a lot of new information that very well may bolster IBM's view, but it is new information and only one side is represented in the filing. The original contract did seem to grant the Unix owner rights to derivative code:
2.01 AT&T grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the United States each SOFTWARE PRODUCT identified in the one or more Supplements hereto, solely for LICENSEE'S own internal business purposes and solely on or in conjunction with DESIGNATED CPUs for such SOFTWARE PRODUCT. Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT.
This is the exact wording of the contract that Sequent (now owned by IBM) signed, and for non-lawyers such as myself seems pretty clear any "resulting materials" are under the same restrictions as the original software.
But as I said this contains new depositions from some of the original ATT employees that may indicate the contract was poorly worded and didn't convey the original intent. IANAL but I don't believe the judge necessarily has to even care, if the original contract seems clear and was signed by all parties, which does seem to be the case.
Bottom line, will the judge toss the case based on deposition alone and no in-court testimony? I doubt it, not when the contract itself seemed so clear. And bottom line for 'Linux', even if it wins this case, it's likely many more await for patent infringement. Don't blame me, this is the way the business/legal world works, and Torvalds and Stallman don't get a free pass.
And that's why AT&T re-worded that section, and clarified the meaning in $echo, because it was poorly-worded and left a lot of licensees confused.. including IBM.
If the contract is confusing, the courts can look at the intent of the parties to the contract. SCOG didn't research the intent -- they just (mis)interpreted the literal meaning of the original words... as you are doing now and as you have consistently done.
However, there is now more to that paragraph than what you had quoted... which clears things up a bit.
"Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, providedthe resulting materials arethat any such modification or derivative work that contains any part of a SOFTWARE PRODUCT subject to this agreement is treated hereunderas part of the originalthe same as such SOFTWARE PRODUCT. AT&T-IS claims no ownership interest in any portion of such a modification or derivitave work that is not part of a SOFTWARE PRODUCT."
And therefore, since NUMA, SMP, RCU, JFS, EVMS, and all of the other stuff that SCOG objects to, did not originally appear in SVRx, IBM's position is that it was entitled to donate that portion of code to what/wherever it wanted. And they have the AT&T folks who wrote and signed that contract backing them up on this point.
Bottom line, will the judge toss the case based on deposition alone and no in-court testimony? I doubt it, not when the contract itself seemed so clear.
Actually, the bottom line is does SCOG have a case? Not anymore, it appears.
This may not be the final nail in the coffin just yet. We'll have to see how SCOG responds to this motion. And the hearing on this is gonna be a gas.
Look, the bottom line is that there's a lot of wishful thinking on both sides of this case. IBM won't be successful in a bid for partial summary judgement, in my view. There are simply too many material facts in dispute. But even so, that doesn't mean that SCO will eventually prevail, either. I will agree that it's going to be interesting to see how this plays out in court. Those of you who think the judge is predisposed to one side or the other should become more acquainted with reality. This judge has been very fair to both sides, and I see nothing which convinces me that there exists any predisposition.
Why do you keep saying this? As far as I've seen, no one has blamed you for anything that has occurred. People may take issue with what you've said (posted), but not with what actually occurs. Besides, you have nothing to do with potential patent infringement by Linux, defending a case, trying a case, or anything else.
That phrase makes you sound defensive, unknowledgeable, and incompetant. Try to avoid it in the future.
He made some very good points in his post, and you ignored them. IBM may "go for the jugular," but you are apparently more prone to go for the ill-chosen phrase. We won't go into how that makes you sound, but I will recommend that you avoid it in the future.
The purpose of my post was to try to provide some constructive criticism. I concede that it probably didn't come across that way, since we lack non-verbal communication with this medium. It was not meant to be nasty.
Simple, because I knew someone like you would come along and ignore my points and instead sling an insult. It was the very next post, as a matter of fact.
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