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May 15, 2003

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MozillaQuest OP-ED

SCO-Caldera v IBM:

IBM Response to SCO-Caldera Complaint Is Outrageous!

Linux and the SCO-Caldera v IBM Lawsuit

By Mike Angelo -- 15 May 2003 (C) -- Page 6

Article Index

At Least IBM Contributes to the Linux Community

IBM's Evasive and Fictitious Answers

Judge for Yourself

Summary and Conclusions

Resources

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!


SCO-Caldera & the GNU/Linux Community:

Summary and Conclusions

In the body of its Answer to SCO-Caldera's Complaint, IBM has denied that it misappropriated or misused SCO-Caldera proprietary information or misused its access to Unix code.

Nevertheless, these denials are nothing more than naked, boilerplate denials. They do not show the bases for or facts that might support IBM's denials. For example, one fact-based defense for SCO-Caldera's claims that IBM has misappropriated or misused SCO-Caldera proprietary information could be that the allegedly proprietary information is not proprietary at all -- but rather well established methodology developed independently of SCO-Caldera.

However, IBM does not point to specific allegedly misappropriated or misused SCO-Caldera proprietary information and say in its Answer that the information is not proprietary -- because it is rather well established methodology developed independently of SCO-Caldera. On the other hand, part of the problem is the terrible job SCO-Caldera's lame lawyers did in drafting the Complaint. They never specifically say in their Complaint just what is the allegedly misappropriated or misused SCO-Caldera proprietary information.

IBM could have and should have asked the Court to compel SCO-Caldera to file a more specific Complaint. However, IBM's lame lawyers failed to do that.

Once again here is an example lousy lawyering on both sides of this lawsuit. It will be interesting to see if the trial-court judge in this case lets these lawyers get away with such lousy lawyering.

In a preamble to its Answer, IBM states:

IBM has not misappropriated any trade secrets; it has not engaged in unfair competition; it has not interfered with Caldera's contracts; and it has not breached contractual obligations to Caldera. In any event, IBM has the irrevocable, fully paid-up, and perpetual right to use the "proprietary software" that it is alleged to have misappropriated or misused.

IBM also states in that preamble:

that contrary to Caldera's allegations, by its lawsuit, Caldera seeks to hold up the open source community (and development of Linux in particular) by improperly seeking to assert proprietary rights over important, widely used technology and impeding the use of that technology by the open source community.

Nevertheless, that is merely a preamble to IBM's answers to SCO-Caldera's allegations. In other words it is merely surplussage interposed to provide the equivalent of a media sound-byte and has little or no legal impact. The legally operative part of IBM's Answer to SCO-Caldera's Complaint is in the paragraph-by-paragraph answers that follow the preamble.

However, IBM fails to deny SCO's outrageous allegation that the Linux is derived from Unix in its Answer. IBM also fails to deny many SCO allegations that insult the Linux kernel, Linux kernel development, the GNU/Linux operating system, and just about the entire Linux community.

So what do you think informed reader? Should IBM have enough knowledge of Unix, the GNU/Linux operating system, Linux software, open source software, the Linux community, and so forth to have answered the Linux-related allegations either admitted or denied, without saying that IBM does not have enough information to do so?

Please keep in mind that in order to admit or to deny an allegation, IBM needs merely enough information so as to form a belief as to whether the allegation is true or false. That means that IBM does not need precise or cast-in-stone, hard evidence -- it merely needs just enough information to form a belief.

Do you believe that IBM honestly, fully, and truthfully answered the allegations of SCO's Caldera v IBM Complaint? We do not.

Do you believe that based on the available information, IBM should have denied that Linux is derived from Unix? We do.

Do you believe that based on the available information, IBM should have denied SCO allegations that insult the Linux kernel, Linux kernel development, the GNU/Linux operating system, and just about the entire Linux community? We do.

We believe that at the times IBM drafted and filed its Answer to SCO-Caldera's Complaint it had more than sufficient information necessary to either admit or deny the allegations of each and every Complaint paragraph 74 through 86 -- and to do so clearly and truthfully.

Here is what we believe IBM should do. First it should fire its lawyers and replace them with honest, competent lawyers that follow the rules rather than abuse the rules.

Then, it ought to go back through SCO's Complaint and honestly and truthfully answer each and every allegation of the Complaint. Next, using the honest and truthful answers IBM should file the honest and truthful answers as an Amended Answer to Plaintiff's Complaint -- because it is the right thing to do.

We have not dissected IBM's answers to each of the 136 paragraphs in SCO-Caldera's Complaint, yet. Nor have we dissected the seven affirmative defenses that IBM tacked on to the end of its Answer to SCO's Complaint. We will take a closer look at those affirmative defenses interposed by IBM and some other answers made by IBM in an upcoming article or two.

Editor's Note: Both IBM and SCO were afforded ample opportunity to respond to, disagree with, refute, and/or comment on the issues raised and the opinions stated in this OP-ED piece. Both declined to do so.

That notwithstanding, from a legal rather than moral perspective, IBM's Answer appears to be legally sufficient to set the matters of fact as to IBM wrongdoing alleged in SCO-Caldera's Complaint in dispute. That means that now it is up to the Court to decide who is telling the truth and who is lying as to the facts of this lawsuit.

Stay tuned.


Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip



Related MozillaQuest Articles


SCO-Caldera v IBM:


SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip


Caldera OpenLinux 3.1.1 Available

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UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part I

UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part II

SCO's Darl McBride and MozillaQuest Magazine's Mike Angelo Discuss Caldera Linux and LSB

Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification


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