IBM Files For Partial Summary Judgment on 8thCounterclaim (Copyright Infringement) -PDF and text

Wednesday, August 18 2004 @ 06:37 PM EDT

Contributed by: PJ

Man, this just isn't SCO's week. IBM has just filed *another* Motion for Partial Summary Judgment, this one on its 8th Counterclaim, the one for copyright infringement. No, silly, not IBM copying SCO. It's where IBM says that SCO has literally copied more than 783,000 lines of code from 16 packages of IBM's copyrighted material. They are asking for summary judgment as to liability and a permanent injunction.

Here's the lesson. You don't ever want IBM legally mad at you.

SCO and friends keep floating these rumors about SCO settling or being bought up. I think IBM has other plans, like crushing SCO like a bug.

Here is the motion, and there will soon be a memorandum in support, which should be hilarious reading, so stay tuned. It may take a little time before the document resolves. Meanwhile, Tuxrocks has a link that works.

I always said the GPL was SCO's Achilles Heel, way back from the very beginning, when I was a tiny little voice in the wilderness, and now I get to watch it play out just as I knew it could and should. I'm thinking this will be the end of the FUD about the GPL never being tested in court. That'll be refreshing not to have to hear that any more. Rest in peace, dead old FUD #1. Some of your cousins will be joining you soon in the Olde GPL FUD graveyard.

UPDATE:

Here is the Redacted Memorandum in Support. Enjoy.

*************************

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

************************

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff
DEFENDANT/COUNTERCLAIM PLAINTIFF IBM’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS COUNTERCLAIM FOR COPYRIGHT INFRINGEMENT (EIGHTH COUNTERCLAIM)

(ORAL ARGUMENT REQUESTED)


Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Pursuant to DUCivR 56-1(a) and Federal Rule of Civil Procedure 56, Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”) respectfully submits this motion for partial summary judgment on its counterclaim for copyright infringement (Eighth Counterclaim). As is set forth in the accompanying memorandum of points and authorities, IBM respectfully submits that the Court should grant summary judgment as to liability and enter a permanent injunction for IBM on its Eighth Counterclaim for the reasons summarized below.

Linux is a computer operating system that has been (and is being) developed collaboratively by thousands of developers over the Internet. Like many others, IBM has contributed source code to the development of Linux and owns valid copyrights in its contributions.

SCO has, without permission, copied code from sixteen discrete packages of copyrighted source code written by IBM for Linux and distributed those copies as part of its own Linux products. SCO has literally copied more than 783,000 lines of code from these sixteen packages of IBM's copyrighted material. As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works and therefore infringed IBM's copyrights.

Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.

For the foregoing reasons, IBM respectfully submits that the Court should enter partial summary judgment and a permanent injunction for IBM on its Eighth Counterclaim for copyright infringement. IBM also respectfully requests that the Court hold oral argument on this motion. This motion is further supported by the accompanying memorandum of points and authorities, the Declaration of Kathleen Bennett In Support of IBM's Motion for Partial Summary Judgment On Its Counterclaim for Copyright Infringement (Eighth Counterclaim), dated August 16, 2004, the exhibits submitted with the Declaration of Amy F. Sorenson, and by argument as shall be presented at hearing.

DATED this 16th day of August, 2004.

SNELL & WILMER L.L.P.
[signature]
Alan L. Sullivan
Todd M. Shaugnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


CERTIFICATE OF SERVICE

I hereby certify that on the [16th] day of August, 2004, a true and correct copy of the foregoing was hand delivered to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

and was sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
BOIES, SCHILLER & FLEXNER LLP
[address]

[signature]
Amy F. Sorenson

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