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IBM's Unpublished Cases (Groklaw)
Groklaw continues to follow the back-and-forth filings in the SCO v. IBM case. In this article, the focus is on IBM's attempts to get some of SCO's affirmative defenses thrown out.
"If SCO wishes to admit that it has no specifics to prove fraud and inequitable conduct and wishes to drop those affirmative defenses to that extent, that is fine with IBM. That's what their motion is asking for in the first place. I am guessing they were laughing out loud when they typed that part up."
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IBM's Unpublished Cases (Groklaw) Posted Dec 27, 2003 8:40 UTC (Sat) by surazal (guest, #11502) [Link] I remember back when the original attempts at bringing "open source law" to the masses. I subscribed to the mailing list for one of these collaborative sites. Unfortunately, the idea fizzled. This was when the DeCSS fiasco was going on and the Microsoft antitrust case was starting to wind down. Lawyers and developers just couldn't seem to mix, since the coders thought the lawyers were being elitist and the lawyers thought the coders were too contentious and too naive to work with law effectively.Groklaw appeared and I had assumed that this was another attempt at collaboration like times past, but of course the website is brand new. And it wasn't run by a lawyer; it was run by a paralegal. It's genius in my opinion. Instead of having free advice shoved down the throats of an unwilling populace, why not just put the evidence on a website somewhere and let the readership do the deducing. Granted, few of us are lawyers, so the conclusions drawn up on that web site's comments should be read with a grain of salt. But it works, and I'd like to congratulate PJ for a fine outstanding job.
The Wrong Side Posted Dec 27, 2003 11:00 UTC (Sat) by ncm (subscriber, #165) [Link] Maybe I'm confused, but I thought that we didn't want IBM to win this particular battle. Shouldn't we be coming up with prior art for these patents and handing it over to SCO's defense team?When did software patents become non-evil? Has IBM pledged to allow free use of these patents in Free Software systems? (Not to my knowledge.) Has IBM pledged to allow free use of their whole patent portfolio in Free Software systems? (Certainly not.) In fact, even their RCU patent is only licensed freely for GPL code, so the BSDs (incl. Apple) are forbidden to use it without a separate license.
The Wrong Side Posted Dec 27, 2003 13:52 UTC (Sat) by einstein (subscriber, #2052) [Link] why the hell would you want to help sco's case?
The Wrong Side Posted Dec 27, 2003 15:11 UTC (Sat) by proski (subscriber, #104) [Link] Because they are defenders in a software patents case. Software patents are much worse than software copyright and trade secrets. You don't have to "steal" or even see anybody's code to be in violation. You just have to make something that was patented. A company with a good portfolio of software patents could make much more damage to free software than SCO.Morality is hardly relevant in lawsuits, but consistency is. We should be against software patents today if we want to win in tomorrow's lawsuits.
The Wrong Side Posted Dec 29, 2003 7:05 UTC (Mon) by bl (guest, #18281) [Link] Aside from the patents issue, there's one reason to want SCO to continueto exist as a recognized legal entity. Microsoft once had a UNIX-wannabe OS called Xenix which it sold to SCO. One provision of the sale was that MS would not compete in the UNIX-like marketplace. IANAL, but surely if SCO ceases to exist, there's no longer any constraint against Microsoft competing in the UNIX-like marketplace. There has been some speculation about MS coming up with their own Linux distribution, no doubt as part of yet another embrace-extend-extinguish campaign. The agreement with SCO would seem to be a roadblock to that. It could be that MS' encouragement of SCO's attack on IBM is a crafty scheme to eliminate SCO and that roadblock.
The Wrong Side Posted Dec 30, 2003 6:15 UTC (Tue) by Wol (guest, #4433) [Link] There is no constraint, and there hasn't been since some time last century.I don't know the details, but basically SCO paid royalties on the "Xenix compatibility code". And by contract wasn't allowed to remove that code - the quid-pro-quo being that "MS keeps out of Unix" thingy. That agreement was overturned as unfair some time ago, the Xenix code hasn't shipped for years, and there's absolutely nothing stopping MS getting back into the nix market, should they wish to. Except, of course, that they'll find themselves competing on merit against better code than their own :-) Cheers,
The Wrong Side Posted Dec 27, 2003 14:44 UTC (Sat) by dank (guest, #1865) [Link] We are being a bit inconsistent, aren't we? John Carroll wrote a good essay on this topic in August. He even lists the patents in question (so you can look and see if any open source you care about might be endangered).The community did pitch in and helped defend Microsoft against the Eolas patent, but then, the Eolas patent covered all web browsers, not just Microsoft's. And SCO has millions of dollars in the bank, and can presumably find prior art (if it exists) quite well using that money. I guess it comes down to this: our resources are limited, and we have to choose our battles. One more software patent lawsuit won't affect the software patent situation significantly, I suspect. Personally, I suspect it'd be more worthwhile for me to spend my energy working to elect a president who will enforce the antitrust laws than to worry about software patents at the moment.
The Wrong Side Posted Dec 27, 2003 16:20 UTC (Sat) by ccchips (guest, #3222) [Link] Um...we didn't elect the one we have. Better we should elect people who don't turn around and elect themselves or their friends later on.As long as we can elect anyone.
The Wrong Side Posted Dec 27, 2003 14:59 UTC (Sat) by vblum (subscriber, #1151) [Link] Hm, the Groklaw article didn't really talk about the patent issue - it was more on what IBM actually wanted to strike out. The question was whether IBM had commited fraud or the likes, and the good news here is that SCO's hand came up empty on that one. They basically said, we don't have any evidence although we claimed this, but please let us claim this again later in case we come up with anything else.Whether SCO will win the patent issue is a different story IMO. From the description of the patents, it seems to me that they might be able to get that taken care of due to obviousness and/or IBM's lack of enforcement against anyone else in the past - if not prior art. However, they'll be spending their money and time on this. Whether IBM should have started with the patent claims is a third issue, and I doubt anyone feels good about it. Nevertheless, it is fun to see how SCO's allegation of fraud is blasted apart.
The Wrong Side Posted Dec 27, 2003 16:28 UTC (Sat) by MathFox (subscriber, #6104) [Link] At Groklaw we're not happy about software patents either. One thing we do there is reporting about the events and giving (legal) backgrounds. IBM filed a motion to strike SCO's accusations of fraud in their defence against IBM's copyrights, patents and the contract issue.IBM is using this case to set a precedent: they want to make very clear that IBM's legal department is to be respected. The PR department certainly likes to spread the image of "IBM, big contributor to Open Source" (Yes, they do) and in this case they can play "defendor of Open Source". For the Open Source movement it is better to have IBM as an ally than as an opponent.
The Wrong Side Posted Dec 29, 2003 6:32 UTC (Mon) by Wol (guest, #4433) [Link] But this case has another advantage. IBM wants to say "our legal department must be respected!".But that legal department is also seeing what the Open Source movement can do if they wish - and IBM's legal department is almost certainly learning to respect us! If this case ends with the legal world respecting IBM, and IBM's legals respecting us, then it will be a very good end. Next time an IBM manager goes to "Legal" and says "this Open Source crowd are abusing our IP", Legal will turn round and say "you want us to sue? Not on your nelly, we'll get slaughtered!". Just as we are glad to have the IBM gorilla on our side, I think IBM are glad to have the linux piranhas on theirs :-) Cheers,
The Wrong Side Posted Dec 27, 2003 17:07 UTC (Sat) by bojan (subscriber, #14302) [Link] You're asking some very good questions here. However, the use of patent litigation in this case is purely defensive. We are not seeing any indications that IBM is going to pursue open source projects with patent litigation. So, we should simply stand aside for now and let IBM do their bit to tun SCO into dust.Software patents should be abolished ASAP, IMHO. And yet, the reality is that they do exist, so we have to be smart and pick the sides carefully. That's what Red Hat are trying to do with a patent portfolio for free software. As for IBM's reluctance to give RCU to BSD licensed code, it only shows that they are smart. Why on earth would they allow their patents leak into other proprietary software through BSD licensed software? They are running a (big) business. There is no room for helping competitors with your own technology.
MAD about patent portfolios Posted Dec 28, 2003 1:46 UTC (Sun) by rjamestaylor (guest, #339) [Link] A single patent is an opportunity for someone to score against others; many of the patent enforcement business models out there are firms with a single or handful of patents.A patent portfolio is not used offensively, but defensively against others who have patent portfolios. It's akin to Mutually Assured Destruction with the arms race. In SCO's case their attack is directed at the core elements of Linux, Open Source and Free Software. It's good to have a nuclear superpower on your side against an enemy like that (legally speaking, of course).
The Wrong Side Posted Dec 28, 2003 5:11 UTC (Sun) by dkite (guest, #4577) [Link] The nature of an adversarial system demands that one uses all the legaltools at your disposal. Lawsuits are truly a zero sum game. If I lose, the other wins, and visa-versa. If IBM looses this case, they have to write a check for $3 billion. It is there responsability, and the judges expect them, to forward and promote their side of the case as vigorously as possible. They will minimize and disparage any evidence or argument that supports the other side, whether or not in private they agree. When the time comes to hire counsel, what you want is a lawyer who doesn't hesitate to (figuratively) shed blood. What you want is your opponent's blood on the floor, since the alternative is to bleed yourself. Whether one agrees or not with software patents, they are real. They are part of the legal landscape. IBM is using what they have to defend themselves. Derek
The Wrong Side Posted Dec 28, 2003 8:08 UTC (Sun) by ncm (subscriber, #165) [Link] That's fine for them. The issue is how we should behave.Besides the stench of software patents, there is another problem. If IBM wins this case, its only real use is to force SCO to settle. But, we don't want SCO to settle. We want them to lose, and lose badly. We want a court verdict that Red Hat can use against them. If they settle, and drop their claims, we all lose. Therefore, our best strategy is to do what we can to weaken the patent case and strengthen the contract/copyright case.
The Wrong Side Posted Dec 28, 2003 13:56 UTC (Sun) by bojan (subscriber, #14302) [Link] > Besides the stench of software patents, there is another problem. If IBM wins this case, its only real use is to force SCO to settle. But, we don't want SCO to settle. We want them to lose, and lose badly. We want a court verdict that Red Hat can use against them. If they settle, and drop their claims, we all lose.This is not necessarily how thing are going to play out. IBM is likely to win both cases actually (i.e. SCO have nothing). This patent case is likely to be used to force SCO to surrender all remaining Unix assets (if they actually own any) or for the company to go broke (similar effect). Can you imagine anyone giving SCO financial support once they lose the $3G case against IBM? Not likely. So, the the second case is going to be their final financial death. IBM kills multiple birds with one stone here: SCO is gone, Unix IP issues are wiped out and a powerful message is sent to others that might have similar ideas about Linux. From what IBM have been telling us, they appear to be calm, decisive and deliberate in all their actions (haven't seen many press releases from IBM, only court documents). When they said: "We're going to defend ourselves vigorously", SCO better believe them. I know it sounds a lot like a war - that's because it is.
The Wrong Side Posted Dec 28, 2003 14:23 UTC (Sun) by dkite (guest, #4577) [Link] Whether one agrees or not, patents are part of the law of property. Theuses of patents that we see today are not new, and patents and their benefits are deeply entrenched in the economy and mindset of North Americans. This isn't going to change. The best way to win a lawsuit is to not have one to begin with. Linux has potentially many IP issues, patents included. Anyone with a copyright and lost market share can attempt what SCO has to try to get some money out of the large market share that linux/gnu+everythingontop has. IBM is saying that if you sue us regarding Linux (they are a target since they have deep pockets) you will not only have the fight of your life, but you will be put out of business. I rather like that. I want them on my side. Lawyers are many times a proxy to do the nasty stuff that I and probably you find distasteful. IBM is filling that role right now for the FOSS community. Let them win the case, or make SCO back down, or put them out of business. Remember, a great jurist said once that if justice is done within the 'justice system', it is purely coincidental. Derek (no it doesn't make sense)
The Wrong Side Posted Dec 29, 2003 7:42 UTC (Mon) by seasoned (guest, #18283) [Link] DKITE. Software patents are NOT as old or entrenced as you claim. Patents are SUPPOSED to satisfy 2 criteria:1. Inobvious to the industry that they are for. SCOs claims are BASELESS in BOTH cases! SCO supposedly got these "patents" in a round about way through AT&T. Most were COLLABORATIVE that AT&T had no right to. Others were freely given to Software patents have gottenWAY out of hand. Next thing youknow, someone will be patenting addition! As for no prior art? A LOT of this, ESPECIALLY collaborative stuff UNIX stopped being an Operating System a LONG time ago. It has become more of a CLASS. AIX, MACOS, HP/UX, ULTRIX, SOLARIS, LINUX, etc... are ALL considered UNIX. Is one company.(especially SCO which doesn't seem tocare about UNIX, etc...) going to sue the hundreds of companies that have been allowed to useit for DECADES? How can the purchaser of rights deny rights granted to others by the copany it purchased the rights from? As for microsoft providing a Linux/UNIX competitor! What a laugh! When Torvalds STARTED he had ONLY what M/S STILL hasn't gotten right. A VM manager. XENIX wasa laugh, and IT didn't havea decentVM manager either. Steve
SCO doesn't have any patents Posted Dec 29, 2003 11:17 UTC (Mon) by ctg (subscriber, #3459) [Link] I think you need to do a bit more "research". It is a very confusing caseand with lots of FUD flying around, it has hard to focus on what really has happened. Check out groklaw (http://groklaw.net)
IBM's Unpublished Cases (Groklaw) Posted Dec 30, 2003 18:27 UTC (Tue) by Pani (guest, #18330) [Link] The SCO CEO Mcbride caused a cluster mess when he was at Pointserve, where he canned the existing business plan, then paid $$$$$ to outside consultants for a bogus business plan that made money off of "internet advertizing" yes pop-ups. (completly new direction for Pointserve, no way to make money either) I talked to him for a hour when I worked at Pointserve, he is All Smoke, Mirrors, and buzz words. He was eventually canned and Pointserve programmers left demoralized. Sorry SCO.
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