SCO Corrects Memo In Opp. to IBM's Motion for PSJ on Copyright Infringement (8th CC) - PDF & text

Monday, December 13 2004 @ 10:30 PM EST

You know how some days you just can't do one thing right?

Well, I gather SCO had one of those days, and it has now submitted a list of corrections, in its SCO's Corrections to Its Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on Copyright Infringement (8th Counterclaim).

It corrects some dates in an attached declaration by Erik Hughes and some urls in the memo and also supplies a missing page of an attached declaration by Chris Sontag. Just one of those days, I gather. There is no penalty for being human, naturally.

However, I admit I am looking forward to seeing in what way SCO thinks Professor Eben Moglen's paper, which they cite, can possibly help them. They quote Mark Radcliff's article because he thinks the GPL is a bit unclear, I guess. Radcliff also glosses over the MySQL ruling, as if the judge, US District Judge Patti B. Saris, expressed no opinion at all on the GPL, whereas in fact she said that the party relying on it had the stronger argument.

Here is a snip from the Free Software Foundation's press release at the time of the judge's ruling on the preliminary injunction ruling:

"In the public hearing this week, Judge Saris made clear that she sees the GNU GPL to be an enforceable and binding license, but that as long as Progress Software appears to be presently in compliance with the GNU GPL, there is probably no irreparable harm being caused to MySQL AB. Since Progress did previously distribute in violation of the GNU GPL and thus did harm MySQL AB and the Free Software community, the FSF expects MySQL to prevail at trial on these claims. The Court recognizes in today's order that MySQL 'seems to have the better argument'."

You can also read the notes of an IP attorney, Ed Kelly, sent to Tim O'Reilly. Kelly, who attended the oral arguments in the case, concludes:

"One interesting point: it did not appear that anyone was arguing that the GPL did not apply or was not a valid license. It sounded as though the GPL was treated as any other license would be in a software context. . . .All in all it appears that this federal court considers the GPL to be a valid license (which shouldn't be surprising - but it has been an issue from time to time and commented on in the academic literature) with a somewhat ambiguous clause about the obligations that arise when you distribute code that combines GPL code with code that was developed independently."

I think to say that the GPL has never had a day in court would be misleading, at best. Finally, SCO cites the article by Professor Richard Epstein, on the alleged unsustainability of Open Source Software, already mentioned on Groklaw and ably answered by Professor James Boyle. SCO didn't attach Prof. Boyle's article, naturally. They also don't attach Professor Epstein's reply to Professor Boyle, which admirably begins:

"The recent response of Jamie Boyle encapsulates many but by no means all of the barrage of criticisms directed my way for my recent column, on the sustainability of open source software. The defenders of the system are able and articulate, and their conviction that this co-operative mode of social organisation is preferable to the more proprietary systems may well supply the strongest evidence that the system will survive and perhaps flourish."

Professor Epstein appears to be an honest man, in short. His problem is, he doesn't yet fully understand the GPL, which is not a sin. However, he should probably contact Professor Moglen to get his questions answered, instead of writing articles that litigants can misuse to try to "prove" points based on his misunderstanding. Heavens to Betsy. If I were as nonchalant in my research before I wrote an article, folks would probably put up whole websites telling the world all about it. And if folks aren't careful, a sleazy litigant could just get authors to write articles saying whatever is helpful to their case and then a month or two later cite it as "proof" in a law suit. Happily, as IBM has pointed out already, news articles are not evidence.

I think SCO may need to file another correction though. The link to Epstein's article is still inaccurate. The correct link is:

They have it as:

Like I said, some days you just can't do a thing right.


Brent O. Hatch (5715)
Mark F. James (5295)
[address, phone, fax]

Robert Silver (admitted pro hac vice)
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
[address, phone, fax]

Attorneys for The SCO Group, Inc.








Case No. 2:03-CV-0294 DAK

HonorabIe Dale A. Kimball

Magistrate Judge Brooke C. Wells

The SCO Group, Inc. ("SCO") respectfully submits these corrections regarding its Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim) (Nov. 30, 2004) (the "Memorandum"), and a supporting declaration thereto:

1. Attached at Exhibit A is the entire Declaration of Christopher Sontag. The first page had been inadvertently omitted from SCO's filing.

2. Attached at Exhibit B is an amended Declaration of Erik Hughes, which replaces in paragraph 12 the phrase "Prior to filing of its Second Amended Counterclaim on March 29, 2004," with "Prior to the filing of its Counterclaim on August 6, 2003."

3. On page 10, line 3 of the Memorandum, the phrase "Prior to filing of its Second Amended Counterclaim on March 29, 2004," should be "Prior to the filing of its Counterclaim on August 6, 2003."

4. On page 25, lines 10-11 of the Memorandum, the phrase "until IBM filed its Eighth Counterclaim, on March 29, 2004," should be "until IBM filed its Counterclaim on August 6, 2003."

5. On page 11, footnote 1 of the Memorandum, the citation to the Moglen article should be A copy of this article is attached at Exhibit C.

6. On page 12, line 8 of the Memorandum, the citation to the Radcliffe article should be A copy of this article is attached at Exhibit D.

7. On page 18, footnote 2 of the Memorandum, the citation to the Epstein article should be A copy of this article is attached at Exhibit E.

Wherefore, SCO respectfully requests that its Memorandum and supporting declarations be deemed corrected as set forth above.

Dated this 9 day of December 2004.

By: ___[signature]_____
Mark F. James


I hereby certify that a true and correct copy of SCO's Corrections to its Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on its Claim of Copyright Infringement (Eighth Counterclaim) was served on Defendant International Business Machines Corporation on this 9th day of December, 2004, by U.S. mail postage prepaid or by hand delivery to:

By U.S. mail. postage prepaid:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLPL

Donald J. Rosenberg, Esq.

Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.

Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.

Exhibits/ Attachments to this document have not been scanned.

Please see the case file.