IBM Will Answer SCO's Amended Complaint by Next Week

Friday, August 01 2003 @ 05:54 AM EDT

Contributed by: PJ



I went to the Utah District Court's web site, and I found out that when SCO filed a motion to amend its complaint , IBM said that was fine with them, but they reserved certain rights. SCO filed their Amended Complaint with the court, changing their name from Caldera Systems to SCO and adding their Sequent claims, on July 22.

Now, IBM says they will be responding by as early as next week, or it's been leaked this is going to happen. IBM hasn't officially said it. The article calls it a "response" and an "answer", but I'm not sure what legal form it will actually be, because the writer doesn't seem to be using the words in a legal sense. If I am following all the dance steps here correctly, I think SCO's request to file an amended complaint, plus IBM reserving rights, gave IBM a bite of the apple they otherwise wouldn't have. So clever, guys.

The two sides have also worked out a schedule for the trial, which is just the court's normal way of letting each side know deadlines for doing certain things.

If you want to read the documents filed with the court, here is how you can. Go here. Click on the icon that says Pacer. You will then be on a page that, if you scroll down, says "Register for PACER". You will have to agree to pay, but it only happens if you go over $10, which is hard to do at 7 cents a page. Some of it is free anyway.

Search for SCO or Caldera or by Case Number: 2:03cv00294. You probably want Full Formatted Report, but text is also available. Browser issues, so experiment. I don't have to tell you their preferred browser. Downloads will be either pdfs or tiffs and you can also just view. After you register, they mail you your password, so it takes a while to be able to use this. And of course, if you have privacy issues, consider. Enjoy.

The "IBM Memorandum of Defendant International Business Machines Corporation Response to Plaintiff's Motion for Leave to File Amended Complaint" said this:

"As will be set out in IBM's response to plaintiff's proposed, amended complaint -- should the Court permit the plaintiff to file it -- plaintiff's proposed, amended allegations are meritless, and judgment should be entered in this action in favor of IBM. Nevertheless, and without conceding the grounds on which it is based, IBM does not oppose plaintiff's motion to amend, subject to IBM's right to move against the proposed amended pleading."

These guys are good. The first sentence is sort of a request for a miracle, namely asking the judge to say the whole case shouldn't even go forward. They didn't expect that, but they put it in, cause, hey, you never know. It shows they think of absoutely everything. Then they reserve their rights.

The funny thing I noticed about all this is, SCO changed their name back in May, and the date on the copy of the amended complaint I got from their web site had a June date. They didn't know back in June that the judge would grant their motion to amend. And they didn't tell us anything about this at the time, that I recall or can find now.

The schedule I see on the Pacer court list says they filed a motion for leave to file an amended complaint on June 16. The judge didn't give them the right to file an amended complaint until July 10. The Amended Complaint filed with the court has a July 22 date, not June. The Amended Complaint I downloaded off of SCO's web site has the June date on the document and the page lists it as "June 16, 2003 -- SCO's Amended Complaint ". It's all very odd. They surely didn't know on June 16 or any other day in June that the judge would grant their motion. I mean, IBM didn't oppose, so it was probable. But not certain. They kind of didn't tell us the whole story in June.

I haven't had time to evaluate fully everything in the documents, looking line by line for anything that may be different, but on first glance they seem identical, except for the dates. What it tells me, once again, is that SCO's public pronouncements are ... well, you know. With these guys, you need to check absolutely everything.

Here's something of interest for you Aussie warriors. A lawyer down under says this about SCO's offer of a license:

"Locally, the recommendation to confess all to SCO or face a perp walk (where a 'perpetrator' is paraded in front of the media) has intellectual property lawyer and partner at law firm Clayton Utz, John Collins shaking his head.

"'If you don't know whether or not you have a valid licence because there is uncertainty as to the providence of the software and who actually owns the copyright, then to walk up and drop your pants to the person who is likely to sue you sounds a little counter-intuitive-and a bit uncommercial,' Collins says.

"Collins argues that just because uncertainty exists as to the ownership of the software copyright, the onus remains on the person claiming ownership of copyright to prove this.

"'A user who believes they are entitled to (legally) use a product doesn't have to prove to someone asserting a contrary right that he is correct. It's up to the people who assert that they own the copyright to get their ducks in a row and be in a position to prove it.

"'The Copyright Act here is quite explicit about that. A copyright owner can't make unjustified threats, that is assert that it will be an infringement of copyright if they haven't got their own ducks in a row from the point of view of being able to prove they are the copyright owner.

"'The Copyright Act (section 202) provides a counter balance to those sorts of statements. Someone asserting to be a copyright owner cannot make a threat of infringement unless, in practical terms, they are confident they are the copyright owner. If there is any doubt about that then they could be in deep trouble in asserting infringement. Section 202 gives to someone against whom a claim is made a right to go to (the Federal) Court to get these people to stop making these threats,' Collins told Computerworld."

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