The previous article presented the transcript of the oral arguments on this motion, but now we really get to see what's going on. For one thing, it lets us know what SCO's arguments are, despite SCO requesting a closed courtroom at the hearing when it was their turn to speak and its nearly unreadable because very heavily redacted Memorandum in Opposition.

As IBM refutes their written arguments here, we get a much fuller picture. Guess what it's all about? Remember when I told you a year ago about a new Utah law I dubbed Yarro's Law, the unfair competition law that Ralph Yarro took credit for getting passed in Utah in 2004? A bio says he started working on it in 2003, but in the Spring of 2004, it passed:

In 2003, he sponsored a bill (S.B. 239), which passed in 2004, to improve the IP laws in the state of Utah.

That's a matter of opinion, the "improve" part. But here's a question for you, class. This bill began its path through the legislative process in 2003. When did SCO sue IBM? Why, yes. 2003. What a coincidence that one of the claims is an unfair competition claim. Is that handy or what? As you can see here, the bill went through several revisions, and one of them [PDF], which actually suggested making unfair competition a felony, was not accepted, but the final language is chilling enough, if only for its vagueness.

Now, SCO in this unfair competition claim is complaining about acts that allegedly took place in 1999 and 2000, in connection with Project Monterey. This bill wasn't passed until the spring of 2004. It's not retroactive, IBM points out in this memorandum. Are you surprised to learn that SCO is trying, at the last moment, to pull it out of its inner pocket and use it against IBM? No? Me either.

The motions under consideration on that day were IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim (PDF; Memorandum in Support) and IBM's Motion for Summary Judgment on SCO's Interference Claim (PDF), in that order. [Update: The redacted IBM reply memorandum on the unfair competition claim is now on Pacer, and I'll put it up next.] And our chart of all the summary judgment motions is here if you want more details regarding the documents filed in connection with these two motions.

Judge Dale Kimball had already heard two motions on March 1 in this case, and you can truly see how well he has been following the details by his questions and comments here. As always, his pleasant sense of humor is on display, but he doesn't seem to have enjoyed being interrupted by SCO attorney Edward Normand at the start of the hearing. It is the first time I can recall seeing him grumpy.

On IBM's side, they list a new attorney, Greg Lembrich, new in the sense of new to us here. Normally, I'd tell you all about him, and in this case, I must say the guy sounds adorably likable, not to mention being a self-described "nerd", but all I'll link to is his spare Cravath profile (he's a Litigation Associate) because there are new regulations in New York State about advertising by lawyers, so vague and peculiar there's already litigation over the matter on Constitutional grounds. Here's the brief [PDF]. I don't wish to cause any issues. If the lawyers don't know what the new rules cover, even what the rules mean by "advertising", how can I possibly know? Life is too short for silly regulations. So I'll just say welcome to the wacky world of SCO, Greg.

The International Standards Organization (ISO) agreed Saturday to put Open XML, the document format created and championed by Microsoft Corp., on a fast-track approval process that could see Open XML ratified as an international standard by August....

According to an e-mail sent Saturday by Lisa Rachjel, the secretariat of ISO�s Joint Technical Committee (JTC-1) on Information Technology, the Open XML proposal, along with comments and criticism by nations that have already reviewed it, will be put on the ISO�s five-month balloting process....

Rachjel wrote that she decided to move Open XML forward after consulting with staff at the International Technology Task Force.

*She* decided? So the objections process is an elaborate waltz with no purpose? Why even have such a process if Microsoft can push its will forward anyway? Are there no standards for standards? Andrew Updegrove addressed that question recently, and his answer was, not so much. What is wrong with this picture?

Steve Martin did the HTML for us, removing the line numbers for the sake of our readers who are blind and depend on screen readers. I am so grateful to them both for doing the heavy lifting for me.

In the first motion, we finally find out what "negative know how" means on Planet SCO. The second motion is the one about SCO's copyright infringement claim regarding IBM continuing to distribute AIX after SCO purported to terminate IBM's irrevocable and perpetual license for allegedly violating SCO's trade secrets, which SCO later admitted in open court Unix System V doesn't have.

Yes, it's all profoundly silly, but it's very interesting, and if I had to characterize the dominant theme of both motions, it would be JFS. IBM informs the court that JFS isn't from Unix. It doesn't come from AIX even. What IBM donated to Linux came from OS/2. So even if SCO had a trade secret or contract leg to stand on, it has no control or rights with regard to JFS.

IBM opens by explaining to the court what SCO's theory of the contract is, namely that if IBM wrote its own code, if it was ever put with Unix System V code in a distribution, IBM thereby lost control of it and SCO got to swallow it up, like some bottom feeding sea creature. Further, SCO got to gobble up IBM's modifications and derivative works too, even if IBM spent millions on development. And they call the GPL "viral"! SCO, by its theory, would control pretty much all the code in the known universe, no matter who wrote it, and most of the programmers in the world too. Who'd ever sign such a deal? Not IBM, for sure, as David Marriott demonstrates by playing clips from various depositions for the court.

SCO has asked [PDF] the Court for more time to respond to Novell's Opposition to SCO's Cross Motion for PSJ on Novell's Fourth Claim for Relief, which was filed under seal. It's a cross motion, because Novell has its own Motion for Partial Summary Judgment on its 4th Counterclaim for Relief [PDF) so both sides are asking for a ruling on that counterclaim to go their way. You'll remember SCO asked for and, despite Novell's opposition, eventually got more time to respond to that motion too. Delay, delay, delay. SCO's middle name.

To refresh your memory, this is the Novell counterclaim asking the Court for a declaration that Novell had and has the right to waive SCO's claims against IBM and Sequent, and that SCO be obligated to recognize Novell's waiver of SCO's purported claims against IBM and Sequent. Novell also seeks a declaration that SCO was obligated to seek Novell's "prior approval to enter into new SVRX licenses or amendments to SVRX licenses, including SCO's agreements with Sun, Microsoft and other licensees of SCO's Intellectual Property Licenses", unless it could demonstrate that they qualified under two exceptions. Novell then has an interesting alternative request for relief, namely for a declaration "that SCO had no authority to enter into the Sun and Microsoft SVRX Licenses, as well as the Intellectual Property Licenses with Linux end users and UNIX vendors".

SCO filed their Cross Motion for PSJ on this issue on January 18th [PDF], on the asserted grounds that "the evidence of the parties� intent under the APA and Amendments thereto is undisputed in SCO�s favor." Undisputed. ! ?

Assuming this request is granted, and SCO says Novell doesn't oppose, then SCO's Reply will be due on this coming Friday, March 16th.

For reference, Novell's Counterclaims are here [PDF] and Groklaw's chart showing the Novell Counterclaims and SCO's Reply is here.

Three motions were argued. The first two motions of the day were argued simultaneously, IBM's Motion for Summary Judgment on its 8th Counterclaim [PDF, memo in support], which is the one where IBM accuses SCO of GPL violations and hence copyright infringement, and at the same time SCO's Motion for Summary Judgment on IBM's 6th, 7th, and 8th Counterclaims [PDF, memo in support] was argued, in which SCO is asking the court to kill IBM's copyright infringement counterclaims, the ones based on SCO's GPL violations, with the asserted defense that SCO never violated the GPL. Of course, they did, as IBM tells the court, and it asks for its day before the jury on its claims. And because the first motions in this report have to do with the GPL, you may wish to have Groklaw's GPL page handy.

The next and final motion argued had to do with IBM's counterclaims for all the trash talk Darl McBride has done "coast to coast", as IBM's Amy Sorenson puts it, SCO's Motion for Summary Judgment on IBM's Second, Third, Fourth, and Fifth Counterclaims [PDF, memo in support and IBM's memo in opposition].

It's Sorenson's first time, I think, arguing a motion in court in this litigation, as far as I can recall, and one interesting detail she provides is a money figure regarding damages. When SCO tried to claim that IBM hasn't suffered any damages from its PR campaign, she reminds the court that McBride himself at one point told the press that there had been a 20% reduction in Linux adoption, and that alone equates to a $672 million loss. Actually, she tells the court, IBM has demonstrated damages in excess of $40 million attributable to litigation fees and having to respond to SCO's public statements. SCO's defense was that all the trash talk is privileged, because it was done in connection with litigation, but Sorenson argued that Darl's letter to Congress, for one example, far exceeded any privilege or qualified privilege. And Chris Brown's report includes the detail that Sorenson told the court that there is evidence that SCO knew that their statements were false, raising the issue of bad faith.

IBM wants its Lanham Act claims to go to a jury, where McBride's state of mind when making his claims about AIX and Linux can be determined by a jury.

I know. It's so funny, to my geek brain, that his state of mind will be officially determined by a jury. Ooo, ooo, can I speak to the jury about that subject? Joke. Joke.

Chris has, as usual, done an outstanding job, and we thank you.

Apparently, SCO still doesn't comprehend the GPL, not to mention some tech issues, like what Linux needs to run. The report indicates they still don't get it that if you redistribute code under the GPL, you have accepted the GPL and are distributing under that license, whether you are the copyright holder or not.

Once again, here is Groklaw's summary judgment chart, so you can follow along and here's IBM's Memorandum in Support, Part A and Part B [PDF] of this motion, if you wish to compare or flesh out the arguments.

While we're waiting for a report on today's hearing in SCO v IBM, Groklaw reporter Chris Brown has provided us with a treat: a partial transcript of the hearing held on Monday. This portion of the hearing transcript concerns IBM's Motion for Summary Judgment on SCO's Interference Claims (SCO's Seventh, Eighth, and Ninth Causes of Action) [PDF]. (As we get the rest of the transcript, we'll post it all.) Todd Shaughnessy argued this Motion for IBM, Mark James argued for The SCO Group.

Motion for Summary Judgment on on SCO's Unfair Competition Claims (SCO's Sixth Cause of Action) [PDF] and

Motion for Summary Judgment on SCO's Interference Claims (SCO's Seventh, Eighth, and Ninth Causes of Action) [PDF].

Here's IBM's Redacted Memorandum in Support [PDF] of the motion regarding interference claims, and here's the Redacted Memorandum in Support [PDF] of IBM's motion for summary judgment regarding SCO's unfair competition claims. Finally, they refer to a case, Leigh Furniture & Carpet Company v. Isom, and while the case is too old to be available for free on the Internet, Groklaw covered the ruling once before, using two other cases that quote from it, in case you'd like to know what that part is about.

This is the first time there has been a matter where observers were asked to leave the courtroom. There was no warning in advance that this would come up. It was SCO that raised the matter. While we have heard what SCO says the private matter was about (IBM emails, allegedly), that doesn't mean that is correct or that it is all that was discussed. In time, it will all come out, I'm sure. As expected, Judge Dale Kimball took both of the motions under advisement. Update: The Deseret News reports on the day's events now too.