[long] SCO's Copyright Infringement Allegations - a progress report

jonathan_sizz

March 25, 2007

My esteemed fellow long haired smellies are referred to IBM 983 Appendix A part 2 [ http://www.zen77087.zen.co.uk/nug/doc/IBM-983-A2-rotated.pdf ] page 150 (ie, the 46th page of the pdf)

IBM, originally in 805 --
"Of the 294 Items of allegedly misused material identified in the Final Disclosures, 79 items allege copyright infringement: Items 38, 112, 149-75, 177, 180, 183-85, 194-231 and 272-78. (Ex. 43 at 14.)"

SCO, originally in 870/871 --
"The Items relevant to SCO's copyright infringement claims regarding Linux are Items 150-64, 183-85, 205-31, and 272. See Ex.144."

So there is a dispute (fsvo dispute) over items 38, 112, 149, 165-166, 167-175, 177, 180, 194-203, 204, 273-278. What's going on here?

As we shall see, SCO's statement hinges on the word relevant. What a clever word. Don't be fooled! They are *not* denying that the items in dispute on these two lists concern copyright infringement. They are saying that the other items are now irrelevant. And, as we shall see below, in every case the item is irrelevant because it's no longer defensible. It's a flag of surrender from SCO.

I'll take the items in four groups, Marriott-style :-)

38, 112, 149, 165-166, 167-175, 177, 180

These were all stated by SCO to be "Misappropriation in the form of non-literal transfers of methods, structures and sequences from System V contributed to Linux" [SCO 724 Appx A p.3], and IBM said of all these items "SCO expressly included some of the Disputed Items in its copyright claim" [IBM 748 p.41]. Additionally, re. 165/6 "The whole of the Streams framework as implemented in Linux infringes SCO's copyrights" [SCO 707 p.14].

So these are all most definitely copyright allegations. But they were all tossed by Wells for lack of specificity (== irreperable lack of substance). The only possible reason for SCO now to deem them irrelevant is that SCO has finally accepted these items are beyond salvation and it now finds them embarassing. So please, IBM, please don't mention them any more. Thanks.

194-203

"The Final Disclosures appear to accuse IBM of copyright infringement with respect to IBM's inclusion into AIX for Power of code from a project known as Project Monterey, but the Court declined to allow SCO to add a claim for copyright infringement relating to that conduct and it has nothing to do with Linux." [IBM 838-1 p.59] "SCO's claims that Linux 2.4 and 2.6 infringe its copyrights are not based on Items 194-204" (sic) "of the Final Disclosures, though such material may form the basis of other claims" [IBM-983 Appendix A part 2 page 161].

These items are still nominally alive, pending PSJ. I guess this admission of copyright irrelevance from SCO dooms these undead items to haunt the derelict mansion (hallo Laura!) of SCO's unfair competition claims until someone finally casts the evil spirits from Biff.

204

"Demonstrating that Dynix was based on UNIX System V" [SCO 724 p.8]. "Although SCO does provide versions and line numbers for the files identified in Item No. 204, SCO makes no claim as to any misuse of the code identified in Item No. 204. Under the heading "Improperly Disclosed Code, Method, or Concept", SCO states: "N/A"" [IBM 620 p.4 fn1]

This item was always a queer one, worthy of a post of its own some day. Its intention is apparently to demonstrate that Dynix/ptx as a whole is a derivative work of SysV. It probably should have been in an expert report, or, alternatively, the corresponding AIX expert report material should have been an Item (which, parenthetically, gives the lie to SCO's current motion to amend). And now SCO deems this item not 'relevant' from the copyright infringement point of view. Ho hum.

273-278

IBM: "SCO's allegations of misuse regarding specification documents (Items 273-278) lay claim to material that is not owned by SCO" SCO's reply: "SCO does not claim copyright in the material in Items 273-78." IBM's response: "IBM acknowleges that SCO abandons all copyright in the material in Items 273-78." [All IBM 983 Appendix A part 2 page 221]

These are all ELF items challenged by the PSJ. So these six items are now, effectively, defunct, leaving only one ELF item (272). Marriott said so in the PSJ hearing, and Silver made no reply even though he had the opportunity. I might post more on this little episode some time soon...

In conclusion

Every detail of these filings needs minute scrutiny. At first sight SCO's statement is bland and unimportant, but in the context of four years of litigation it's as close as SCO will ever come to an admission of failure.

9:58:05 AM


Source: Investor Village SCO Board [ http://www.investorvillage.com/smbd.asp?mb=1911 ]

Copyright 2007