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July 27, 2003

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Does SCO's Amended Complaint Meet Burden for Summary Judgment?

SCO-Caldera v IBM Complaint Changed Dramatically

By Mike Angelo -- 27 July 2003 (C) -- Page 2

Is IBM's Irrevocable Unix License Revocable?

Article Index

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 Has Not Found Its Code in Kernell.Org Linux Kernel or in GNU/Linux OS -- Conectiva, Mandrake, and SuSE Say No SCO in Their Code

Kernel.Org and GNU/Linux Developers Have Clean Code Safeguards -- Is SCO Trying to Dictate Linux Kernel and GNU/Linux Development Procedures?

Novell Says SCO Does Not Own Unix IP -- SCO Says it Does -- Novel Enters the SCO IP Fray with No Proof and More FUD

IS SCO NDA Sideshow Setting a Trap for Analysts and Linux Developers?

SCO +1, Novell -1 in SCO v Novell Unix-IP Feud -- Novell loses big round in Unix IP fray with SCO-Caldera

SCO-Caldera & the GNU/Linux Community:

Burden of Proof Note:

Some of the feedback we get about the SCO IP fracas indicates that some people do not understand the difference between civil and criminal litigation or they do not understand burden of proof issues in United States law. Unlike a criminal proceeding, in a civil lawsuit both the plaintiff and defendant are required to give evidence that might cause them to lose the lawsuit. United States Constitution Fifth Amendment protections against self-incrimination do not apply in civil litigation in the United States. Initially, the burden of proof is upon the plaintiff. However, once the plaintiff shows merely enough proof to establish a prima facie case, the burden shifts to the defendant in a civil lawsuit to prove that the defendant did no wrong. Simply put, in a U.S. criminal prosecution the government (plaintiff) must prove beyond reasonable doubt the defendant is guilty -- and the defendant need not say or prove anything. However, in civil litigation all the plaintiff must do initially is to show that defendant might have injured the plaintiff. Once the plaintiff does that, the burden shifts to the defendant to prove by a preponderance of the evidence that he/she/it did not injure the plaintiff or that the nature of the injury is such that the plaintiff cannot obtain relief from the court for the alleged injury. Instantly, SCO's Amended Complaint appears to be sufficient under the notice pleading requirements of federal court rules to shift the burden to IBM to prove that SCO should not win the lawsuit. Anti-SCO readers might not like that, but that is the law albeit an oversimplified explanation, like it or not.

Summary Judgment Note

See for example, Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). (Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." )

Also, see Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (4th Cir. 1997) (Indeed, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. Thus, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Bus. & Educ. Radio, Inc. , 53 F.3d 55, 62 (4th Cir. 1995).)

Might SCO's Amended Complaint Meet Burden for Summary Judgment?

Important additions in the Amended Complaint are recitals that go to revocation of IBM's license to use and redistribute Unix and its AIX Unix variant. Included in these added recitals are allegations that JFS (Journaling File System), NUMA (Non-uniform Memory Access) software, RCU (Read, Copy, and Update), and other such technologies are Unix derivative works under the Unix license agreements -- and that IBM disclosed these technologies to the GNU/Linux community. Again, SCO must show that IBM violated contractual agreements of the Unix licenses in order to revoke the IBM Unix license(s).

SCO-Caldera's Amended Complaint is much better pled than the original Caldera v. IBM Complaint. So much so, that if IBM should file as evasive and non-responsive an answer to the Amended Complaint as it did to the original Complaint, SCO-Caldera likely could take a summary judgment or judgment on the pleadings against IBM. Please see Burden of Proof Note in the sidebar.

Mark Radcliffe is a Co-Chair of GrayCarey's, a Palo Alto law firm, Licensing Division. His areas of practice include strategic intellectual property advice; private financing; corporate partnering; software licensing; Internet licensing; and copyright and trademark.

We discussed SCO's Amended Complaint with Mark Radcliffe shortly after it was filed in June. In discussing the likelihood of SCO-Caldera obtaining a summary judgment against IBM, Mark Radcliffe mentioned that summary judgments are not easy to come by. If IBM can show the Court there are disputed issues of fact, then likely the Court would not grant a motion for summary judgment should SCO-Caldera make such a motion.

So, an important question regarding the possibility of SCO-Caldera taking a summary judgment against IBM is whether IBM will put the relevant factual matters in dispute in its answer to SCO's Amended Complaint, or in its response to a motion for summary judgment should SCO-Caldera interpose one. If IBM does set the relevant factual matters in dispute, then a jury, in a trial, will have to decide whether to believe SCO-Caldera's statements of the facts or IBM's statements of the facts.

Thomas C. Carey is a programmer turned lawyer and now is a partner at Bromberg & Sunstein in Boston. He chairs the firm's Business Practice Group. His law practice includes licensing and transferring software, technology and other knowledge-based content, and lots more.

In a discussion about SCO's Amended Complaint, Tom Carey points out:

It is usually easy to put material facts in dispute. And this case has more facts than most to argue about.

However, it is up to IBM to put those facts before the court and into dispute. So far, IBM has not done that.

Merely making general denials or avoiding answering allegations by stating that IBM is without sufficient information so as to form a belief about the allegations is not sufficient to defeat a motion for summary judgment. That is what IBM did in its Answer to the original SCO-Caldera Complaint.

In order for IBM to defeat a motion for summary judgment, should SCO-Caldera interpose such a motion, IBM must present sworn evidence to the court, which contradicts SCO-Caldera's allegations. Please see the Summary Judgment Note sidebar.

Tuesday, Trink Guarino, Director of IBM Media Relations told MozillaQuest Magazine:

IBM owns the copyrights for the work we've done in AIX, JFS, RCU and the code that takes advantage of NUMA hardware. AIX is the fastest growing UNIX operating system in the industry, and we intend to continue and accelerate that growth.

Prior to that statement from IBM, it appeared that if the case were to go to trial before a jury, taking into consideration

(a) the allegations of the Amended Complaint,

(b) discussions with many analysts, attorneys, Linux experts, Unix experts, and members of the GNU/Linux community,

(c) IBM's lame Answer to the original Complaint, plus

(d) our own intensive research and analyses

that SCO-Caldera could win, at least in part, its lawsuit with IBM. There are provisos to that conclusion.

Moreover, Tuesday's statement from IBM changed everything. It very strongly refutes the crux of SCO's IBM lawsuit claims. Adding Trink Guarino's Tuesday statement together with Tom Carey's analyses of the SCO v IBM issues, it appears that IBM easily would be able to defeat a motion for summary judgment.

Thursday, SCO's Blake Stowell confirmed this as to the IBM-developed AIX, JFS, RCU, and NUMA software code. However, Blake Stowell also reaffirmed Thursday SCO's claims that IBM-developed AIX, JFS, RCU, and NUMA software code are derived works under the Unix license agreements -- and that IBM violated those license agreements by disclosing that code, methods, secrets, and so forth to the Linux kernel developers. Please see our article SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights for the details.

Nevertheless, when Trink Guarino's Tuesday statement taken together with Tuesday's statements from's Richard Gooch, and other statements from Linux kernel developers and Linux distribution providers, plus Tom Carey's analyses of the SCO v IBM issues, it appears that IBM is more likely to win the SCO-Caldera v IBM lawsuit than is SCO.

IBM's statement that it owns the copyrights for the work we've done in AIX, JFS, RCU and the code that takes advantage of NUMA hardware is the important and heretofore missing part of the puzzle. Once IBM says (and then proves) that it owns the work it has done on AIX, JFS, RCU, and NUMA software, much if not all of SCO-Caldera's breach of contract and other tort claims go down the tubes.

However, for that to happen IBM must prove that its IBM-developed AIX, JFS, RCU, and NUMA software code do not come under the derivate works umbrella set forth in the Unix license agreements. If they do fall under that derivate works umbrella they become part of the Unix Software Product and their disclosure to the Linux developers is a breach of the the Unix license agreements.

Up to Trink Guarino's statement, IBM had been very closed-mouth about the actual merits of the SCO v IBM lawsuit. So, our guess is that IBM would not have made that statement, un-equivocally claiming ownership of the copyrights for the work we've done in AIX, JFS, RCU and the code that takes advantage of NUMA hardware, unless it has its ducks all lined up and is fully-prepared to prove that in court.

Another proviso is, as was the case with Novell's Unix copyright fracas, that there appear to be all sorts of side letters of agreement, contract amendments, and so forth -- many of which as yet might be undisclosed documents. The sudden appearance of such a so far undisclosed document could make this mad journey through the SCO and IBM looking-glass an entirely different ballgame

  • See Is IBM's Irrevocable License Revocable on Page 3 ----->

  • 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

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