The hearing date for IBM's motion for a partial summary judgment on its
tenth counterclaim (seeking a declaration that none of its Linux activities infringe upon
SCO's copyrights) and SCO's attempt to dismiss that counterclaim is
coming. So the memos to the court are flying in all directions.
SCO has filed its reply
memorandum (PDF format) in support of its motion to dismiss or stay count ten. Therein,
SCO claims that IBM's counterclaim is not "compulsory," that, instead, it
is unrelated to the main case and could be considered separately. SCO says
that IBM's counterclaim adds "undue complication and complexity" to the
case, and thus should be dismissed. SCO wants the issue to
simply go away.
IBM has also filed a
reply memorandum (PDF); this one is in support of its motion for a
partial summary judgment on the tenth counterclaim. It makes for
interesting reading; IBM is putting its full strength into ripping apart
SCO's claims. IBM's reasoning is, essentially:
- SCO has made repeated public claims that the Linux kernel contains
code copied directly from Unix, so the issue is relevant.
- SCO has never shown any evidence that this copying has occurred, and has no such
evidence to show.
- The only thing that was even close to evidence was a declaration by
Sandeep Gupta. IBM says it should be ignored because it was filed too
late, because Mr. Gupta has no personal knowledge that would make him
an expert witness, and the approach he used to compare Unix and Linux
code is flawed.
In support of its position, IBM has submitted a declaration from one
Brian Kernighan on the flaws in the code comparison methodology and
stating that Mr. Gupta's results are incorrect. When it comes to Unix
code, one might assume that Mr. Kernighan has a bit of expertise to
- SCO's claims that it needs more time for discovery are bogus because
SCO has been saying for over a year that it has tons of evidence
- SCO did not even bother to try to answer most of IBM's "undisputed
facts," and its filing was not organized properly.
- SCO can't even put up convincing evidence that it owns the copyrights
The memo goes on for 56 pages; it is an interesting read. It has long been
clear that SCO management's public statements would come back to haunt the
company; IBM is now doing its best to make that happen.
IBM has also been busy trying to strike the declarations SCO has been
filing in support of its positions. IBM's reasoning is usually that the
person making the declaration is in no position to know what he is talking
about. For some amusement, see this
version of John Harrop's declaration posted on Groklaw; all of the
portions which IBM wishes to strike have been indicated there. If IBM is
successful, little of the declaration will remain.
SCO is due to report its third quarter results. That announcement will,
according to this press
release, happen on August 31. SCO should be able to show more
SCOsource income this time around, since the money from EV1Servers.Net
should finally appear in its accounting. It is hard to imagine the numbers
as a whole being good, however.
SCO has announced,
again, that it has made peace with BayStar. It might have actually
happened this time.
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