From: brian at stanley-park.com (Brian)
Date: Mon Aug 16 16:15:18 2004
Subject: IBM files for second PSJ
Hello Dear Friends:
IBM filed a new motion last Friday for a PSJ (Partial Summary Judgment) on
the contract claims portion of the lawsuit!
Here are my favorite passages:
Although SCO for months perpetuated the illusion that it had evidence that
IBM took confidential source code from UNIX System V and dumped it into
Linux, it has become clear that SCO has no such evidence. Instead, SCO's
claims that IBM breached its agreements with AT&T depend entirely on the
allegation that IBM improperly contributed certain of IBM's original source
code, contained in its own AIX and Dynix operating systems (each of which
contains tens of millions of lines of source code), to Linux. According to
SCO, because AIX and Dynix allegedly contain some small component of source
code from UNIX System V (SCO claims there are approximately 74,000 lines of
UNIX System V code in AIX and approximately 78,000 lines in Dynix, which
amounts to less than one percent of the total lines of code in AIX and
Dynix), IBM is prohibited by its licensing agreements from disclosing any
of the other millions of lines of code in AIX or Dynix, even if that code
was created by or for IBM and contains no UNIX System V code.
SCO is wrong as a matter of law, and IBM is entitled to partial summary
judgment on SCO's contract claims, for at least two independent reasons.
First, the AT&T agreements upon which SCO's claims are based do not preclude
IBM from using and disclosing source code that is written by IBM and does
not include UNIX System V code (referred to herein as 'homegrown' code):
1. The plain and unambiguous language of the agreements imposes no
restrictions on the use or disclosure of source code that does not contain
UNIX System V code (See Section I.A.)
2. The individuals who executed the licenses and were involved in their
negotiation, on behalf of both AT&T and IBM, have offered 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. (See
3. Interpreting the licenses to prohibit the disclosure of homegrown code
would be patently unreasonable. (See Section I.C.)
Second, even if the AT&T agreements could be read to preclude the disclosure
of homegrown code -- and they cannot be -- any breach based upon such a
reading has been waived by Novell, Inc. ('Novell') on behalf of SCO, and by
1. Novell, which at one time owned all rights in the AT&T agreements at
issue, retains the right to waive alleged breaches of the agreements, and
Novell has exercised that right to effect a waiver of the alleged breaches
in this case. (See Section II.A.)
2. SCO itself sold or otherwise made available to its customers and the
public the code it claims IBM should not have revealed. By its own conduct,
therefore, SCO has waived any right to claim that IBM acted improperly by
contributing its code to Linux. ( See Section II.B.)
For these reasons, partial summary judgment should be entered on behalf of
IBM on SCO's claims for breach of contract (SCO's First, Second, Third and
Fourth Causes of Action).
IBM now has two PSJs in the hopper, one on the alledged Linux copyright
violations and now one on the contract dispute. That just leaves the
cancelled Unix license.
Some may say the SCO case is officially circling the bowl. I say that SCO is
officially circling the bowl, along with Darl, Chris, Blake and of course,
who can forget that timid camper, Rob Enderle!
Way back in October I made it very clear that SCO didn't have a case BECAUSE
they had no evidence!
No Evidence = No Case
Of course, Tony will tell you, as he has done for the last year, that "SCO
May Still Win" even if they have no case. What Tony didn't know, never took
the time to find out and totally ignored when it was explained to him, is
that SCO can't win on a sympathy vote from a room full of Utah jurors
because it will never get that far with NO EVIDENCE!
No Evidence = No Case = No Trial = No Jury
Now that the second PSJ motion has been filed, it is just a matter of
watching it slowly wind its way through the legal machinery (answers,
memoranda, affidavits, more pleadings etc) before it goes before the Judge
for a oral hearing. We all know how well SCO does during these oral
hearings (snicker chuckle) and then the Judge will make a determination -
that could take up to 6 months.
In the mean time, let me publicly and emphatically thank Pamela Jones and
her fantastic crew at Groklaw.net website for their unflagging search for
the truth, continuous war against FUD and serving as a rally point for all
the disenfranchised Linux coders, developers, admins and users who feared
being hijacked by a Microsoft funded turncoat organization.
There are few words to describe the total contempt I hold for the SCO Group
and ALL it's employees - do the words "I was only doing my job" ring a
Now to watch the insiders tear into each other and rip The SCO Group to
shreds. The SCO bagholders were expecting a winfall when SCO prevailed and
now they are looking at an almost total loss - SCO closed under $4 today -
remember when Darl was saying the suit was a "Slam Dunk"? What a loser!
Now Tony is liable to say something like "Me and Groklaw agree 99%" but then
his overwhelming jealousy will get the better of him and he will whinge on
and on about 'group think' and other such nonsense. Then he will make a
pitch for people visiting his website for some moronic editorial bereft of
facts and supporting cites.
Hey Tony, why don't you write about IBM's two PSJs and what they will mean
for The SCO Group's case? Why don't you provide links to Groklaw so people
can read the actual documents involved. Why are you so intent on creating
FUD concerning IBM and the Linux community - completely without foundation?