SCOG v Novell Fizzles and SCOG Still Sues

In the Salt Lake Tribune we read “Cahn said SCO intends to continue its lawsuit against IBM, in which the computer giant is accused of using Unix code to make the Linux operating system a viable competitor, causing a decline in SCO’s revenues.
“The copyright claims are gone, but we have other claims based on contracts,” Cahn said.

Well, let us look at those claims after millions of lines of code were handed over in discovery to compare with Linux:

    1. Under the First Cause of Action, damages for breach of the IBM Softare Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequently resulting from IBM’s breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of AIX, including software, services and hardware; and for attorneys fees and costs;

    2. Under the Second Cause of Action, damages for breach of the IBM Sublicensing Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequently resulting from IBM’s breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of AIX, including software, services and hardware, and for attorneys fees and costs;

    3. Under the Third Cause of Action, damages for breach of the Sequent Software Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequentially resulting from IBM’s breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of Dynix/ptx, including software, services and hardware; and for attorneys fees and costs;

    4. Under the Fourth Cause of Action, damages for breach of the Sequent Sublicensing Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequentially resulting from IBM’s breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing, improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of Dynix/ptx, including software, services and hardware; and for attorneys fees and costs;

    5. Under the Fifth Cause of Action, injunctive relief pursuant to 17 U.S.C. § 502 and SCO’s actual damages and IBM’s profits as a result of the infringing acts pursuant to 17 U.S.C. § 504 (a), statutory damages to the extent applicable pursuant to 17 U.S.C. § 504 (b) and enhanced damages, together with attorneys’ fees and costs pursuant to 17 U.S.C. § 505

    6. Under Sixth Cause of Action, for damages in an amount not less than $1 billion, for unfair competition arising from common law, and damages for violations thereof, together with additional damages through and after the time of trial;

    7. Under the Seventh through Ninth Causes of Action, for damages in an amount to be proven at trial for tortious interference, together with additional damages through and after the time of trial;

    8. For a permanent injunction to prohibit IBM from further contributions of the protected Software Products into open source;

    9. For punitive damages under the Sixth through Ninth Causes of Action for IBM’s malicious and willful conduct, in an amount to be proven at trial;

    10. For attorneys’ fees and costs as provided by statute and/or by contract in an amount to be proven at trial; together with pre- and post-judgment interest and;

    11. For all other legal and equitable relief deemed just and proper by this Court.

SCOG tried to amend that load of swill a third time so this is its state. Most of it is about contributing software IBM owned to GNU/Linux such as JFS. The judge expressed “astonishment” at how little software SCOG claimed was copied into Linux.
Viewed against the backdrop of SCO’s plethora of public statements concerning IBM’s and others’ infringement of SCO’s purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO’s alleged copyrights through IBM’s Linux activities.

If copyrights were not violated it is very unlikely contracts were. The contracts were mostly about using and not giving away the code. IBM did not. It contributed to GNU/Linux stuff it created and owned the copyrights. In comparison, IBM has them cold on violation of the GPL in distributing Linux without source code…. HAHAHAHA.

I am astonished that a judge, an educated person, an experienced person, and a trustee would persue this madness, gambling on an unlikely win in the face of all the evidence.

In a report to the court in SCO v IBM this is what SCOG wrote on 2007-8-31 shortly before Chapter 11, “ SCO believes that the Order would constitute a basis upon which the Court could dismiss SCO’s First, Second, Third, Fourth, Fifth or Eighth Causes of Action in its Second Amended Complaint. SCO is not voluntarily dismissing these claims, but acknowledges that the Court’s rulings with respect to Novell’s right to waive contract claims if applied to the IBM case would resolve these claims. Because these are separate cases, SCO submits it is appropriate that the resolution of these claims be reflected in a separate Order, and Judgment. This statement is without prejudice to SCO’s right to pursue motions for reconsideration and appellate rights in both the IBM and Novell actions.
With respect to its remaining Cause of Action, SCO states as follows:
Sixth Cause of Action – Unfair Competition

This was on the basis of the summary judgments in SCO v Novell which the jury has now partly reaffirmed. If Judge Stewart agrees with the rest, all SCOG has to talk about is unfair competition as a result of the stillborn Project Monterey from the early 1990s, long before there ever was a SCOG. Their case against IBM stands on one leg. IBM has an octopus waiting in the courtroom for SCOG with claims including violation of the GPL.

If trustee Cahn will not do his job the US trustee and the bankruptcy judge should move this thing along.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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