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Can we talk about licenses for a bit? It's something I've wanted to talk to you about for a long time, and it's a good time for it, because Mozilla is redrafting its license and would like your input.

Here's where you can find the Mozilla Public License, the current version, along with a FAQ that explains it and an annotated version, and here's where you can get the draft of the revised version [PDF], and here is a red-lined version [PDF]. Nothing in the draft revision is yet set in stone. You'll notice that they are working on it like Legos, issue by issue, and this draft isn't addressing all the issues they hope to address. Here's the big picture.

But before we dig in, I'd like to talk to you about the big picture with licenses generally, where we are now, and why it's important to revamp licenses at this point in time. I hope OSI folk will read this too, because in my view, what Mozilla is doing is what needs to be done with every single license on the OSI list. Let me explain why.

Here's Part 2 of the 2006 IBM document Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement [PDF] IBM'S Tenth Counterclaim, as text, the document where IBM presents all the reasons why SCO's claims of copyright infringement in Linux are bogus. If ever SCO or Son of SCO waives a list of allegedly infringed code, this is the document to have on hand.

Part 1 listed the reasons why IBM did nothing wrong, in that it has multiple licenses to use the code, for one thing, and this part continues that argument, but it then focuses on the files that SCO presented to the court, stating point blank that they are not protectable under copyright law. If you are not a programmer, and you see a list of header files allegedly infringed and don't know who is right, this is the document that will explain it all to you.

Just as we thought, SCO sued over essentially nothing at all, or as IBM puts it:Despite SCO's grandiose description of its alleged evidence of IBM's infringement, it is now clear that SCO does not have (and never has had) any such evidence. Is that not appalling?

I think when you read this 2006 IBM document, its Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement [PDF] IBM'S Tenth Counterclaim, Part 1, which I've done as text for you at last, you'll be left wondering how SCO ever dared to open its mouth about Linux, let alone continue to claim infringement by anyone at all ever. Here's a bit of IBM's conclusion, after looking at SCO's list of allegedly misused materials, SCO's laughable Final Disclosures:194. The Final Disclosures do not specifically allege or include any evidence of unauthorized copying of System V code in Linux by IBM, unauthorized distribution of Linux by IBM or unauthorized preparation of derivative works by IBM relating to Linux. (See Ex. 54.) Nothing. Nothing at all. Nothing specific. No evidence. Even if there was anything, IBM points out it had multiple licenses; and besides SCO had distributed the code it sued IBM over under the GPL -- in some cases for nearly a decade.

What were they thinking? How could SCO's lawyers keep this going so many years? How could they even want to? Weren't they ashamed? Or don't they grok the tech? Was it all a cynical exercise in harassment? Could they ever seriously have thought IBM would settle over *this*?

My reaction on reading this document was how sad that the world was put through all this for absolutely no reason. How did they dare? And on what basis would anyone, let alone a retired judge, I couldn't help but ask myself, read a document like this and decide to go forward with this litigation? It's inexplicable to me. One thing is clear as a bell if you understand the tech: Linux doesn't infringe UNIX at all. That's what I get out of this.

Look at this, will you? The first decision from the Board of Patents Appeals and Interferences post-Bilski to reference that US Supreme Court decision, in In Re Proudler [PDF], a ruling rejecting HP's application for a software patent, setting forth a rule stating, as I read it, as saying software is not patentable because it's an abstraction:Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, "Abstract software code is an idea without physical embodiment." Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010). This is not the last word, I'm sure, as HP can certainly try to reword. But don't you find this encouraging? I do. And that's why I wanted it in our permanent record of the Bilski case and its aftermath.

Back in 2006, IBM filed a document in the SCO v. IBM litigation that includes five reasons IBM told the court it has what it called "a complete defense" to any SCO claim of copyright infringement, even if SCO had any UNIX copyrights, which a jury in Utah has just ruled it doesn't.

It talks about ELF, Streams, all the oldies and goodies, the claims that survived Magistrate Judge Brooke Wells's order granting IBM's motion to limit SCO's claims as a sanction. Most of SCO's list of allegedly infringed materials, filed by SCO under seal, was tossed for lack of specificity. It wasn't a long list, in any case, as you will see, judging from IBM's math.

I just noticed we never did this memorandum as text. Can anyone help by doing an OCR for us, so we can add it to our collection on Groklaw? Before you say yes, it's long, in two parts, IBM's Redacted Memorandum in Support of its Motion for Summary Judgment on its Claim for Declaratory Judgment of Non-infringement (IBM's Tenth Counterclaim}:Part 1
Part 2 Even the title is long. If the SCO v. IBM case gets resurrected, unlikely but conceivable as long as SCO's appeal in the Novell litigation is still pending, it will be important to have this as text. It was never ruled on because SCO filed for bankruptcy, and everything got put on a back burner. In any case, it's important for history.

There's a very interesting case, Media Queue v. Netflix, where Netflix is asking the Federal Circuit to revisit the standard for awarding attorneys' fees. Here's their appeal brief [PDF]. It would like the court to create parity between plaintiffs and defendants. Right now, the system tilts to help plaintiffs recover their fees if willful infringement is demonstrated, which is fairly easy to demonstrate. But defendants wrongfully sued have little hope of success when asking that their legal fees be covered, unless they can prove the claims were objectively baseless or brought in bad faith, a mighty high bar to get over. Netflix would like to change that to allow district courts to have discretion to award attorneys fees when folks bring litigation unlikely to succeed. From the motion [PDF] asking for en banc review, which Netflix is also requesting: District courts should have discretion to award fees when a patentee was objectively reckless -- that is, filed or maintained a lawsuit with an objectively low likelihood of success knowing or having reason to know that it was likely to lose -- or when the court finds that the defendant vindicated an important public interest. If Netflix prevails, it could indeed have an impact on how readily folks initiate questionable patent infringement lawsuits.

If we can't yet get rid of software patents as a category outright -- although, I must say, after reading about this case, you may agree we ought to -- at least savvy patent lawyers can tweak the system so it's not so lopsidedly awful. Yes, there are such patent lawyers. If you download the filings, you'll see that Michael A. Jacobs of Morrison & Foerster is on the Netflix legal team, along with Durie Tangri's Mark A. Lemley. So that drew my attention right off the bat. This case is important enough that amicus briefs have been filed by Amazon, Facebook, Microsoft, Oracle, Toyota, and others supporting Netflix's request for an en banc hearing. Let's take a look. I think you'll want to follow this one.

SCO has filed a motion to stay taxation of costs until after the appeal they just filed notice that they plan to pursue. If you are getting that deja vu feeling, you're right. They did this the last time too. It's almost word for word the same. The last time, Novell opposed, and Judge Kimball denied SCO's motion, ruling that "the court does not believe that a party's speculation as to the possibility of the underlying judgment being reversed on appeal is a valid reason for delaying a determination of costs."

SCO then filed objections to Novell's list of costs. It got it whittled down slightly.

And here is SCO, submitting the same motion on the same grounds that the court said wasn't convincing the last time. Are they just going through the motions, so Novell has the annoyance and costs of having to file an opposition? One might begin to suspect. And no doubt Novell will oppose again. It wants to be paid. SCO even cites the same case [PDF] that didn't work for them last time, that Novell pointed out doesn't support their motion. What in the world is SCO thinking? Are they really trying?

I don't think SCO is giving this their all. Here's what never changes. SCO doesn't want to pay Novell anything if there is any way around it.

SCO has cancelled the bankruptcy hearing that was supposed to happen on the 12th, so don't travel to Delaware:PLEASE TAKE NOTICE that the omnibus hearing scheduled in the above-captioned case for July 12, 2010 at 1:30 p.m. has been cancelled. The next omnibus hearing is currently scheduled for August 16, 2010 at 10:30 a.m.

Poor SCO. They're on a slow boat to nowhere, and they'd rather not arrive just yet, I gather.

SCO has filed its notice of appeal:

07/07/2010 - 881 - NOTICE OF APPEAL as to 876 Findings of Fact & Conclusions of Law, 878 Judgment, 877 Order on Motion for Judgment as a Matter of Law, Order on Motion for New Trial, Memorandum Decision filed by SCO Group. Appeals to the USCA for the 10th Circuit. Filing fee $ 455, receipt number 1088-1150192. (Hatch, Brent) (Entered: 07/07/2010)

As you can see, they hope the 10th Circuit Court of Appeals will bail them out again:Plaintiff, The SCO Group, Inc., hereby appeals to the United States Court of Appeals for the Tenth Circuit from the Jury Verdict entered in this action on March 30, 2010, the district court's evidentiary rulings at trial, Findings of Fact and Conclusions of Law dated June 10, 2010, Memorandum Decision and Order Denying SCO's Renewed Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial dated June 10, 2010, and the Final Judgment entered on June 10, 2010. They're appealing everything, in short, or they'd like a new trial. Because three trials isn't enough when you're not having fun. Speaking of which, I confess. I'm so sick of SCO I could spit.

More hilarity ensues as SCO files its MORs for April. As you'll recall, it was in March that the Yarro loan went through, and both Blank Rome and Ocean Park got paid, $335,296 and $261,645 respectively. Now what happened in SCOville in the following month?

Oh noes. I think SCO is losing money.

: D

My favorite notation is on page 14 of the SCO Operations MOR: Total Cash in SCO Ops BS Hey, hey, SCO. Watch your language on Groklaw please. All right. Kidding. The serious part is how will they pay Yarro back? It'd be a cryin' shame if they had to let him have the company assets instead, what with the professionals getting paid and all. Hardy har. Wait. Isn't that what the mob does? So I hear tell. They loan you money and when you can't pay it back, they take your restaurant.

Simon Phipps is correct: Open Core is Bad for You, the "you" here being you and me, end users: The open core model exploits open source and is a game on software freedom. The fact the game is played does not invalidate software freedom, but it suggests we need to revisit definitions and make the game harder to play.

Open core is a game on rather than a valid expression of software freedom, because it does not cultivate software freedom for the software user. Mark Radcliff worries that the anti-open core position will scare away VC investment. So be it. But here's my question: what is OSI's position in this debate? With both men associated with OSI, it's getting confusing.

Ocean Park has submitted its 8th monthly bill in the SCO bankruptcy. They're the firm hired by SCO's Chapter 11 Trustee Edward Cahn to help him figure out what to do with SCO. And eight months in, I think we can all agree that they've done an awe-inspiring job under Cahn's leadership of running the company completely into the ground, and then digging some more straight down toward the center of the earth, all without paying the creditors a blessed sou. For which labor they would like to be paid now another $38,186.00 for the merry month of May. Tra la.

When you consider that when SCO filed for bankruptcy protection, it had $9 1/2 million in assets [PDF], and only a little more than $3 million in liabilities, it's been truly amazing to watch this company commit suicide by bankruptcy court. And with so many professional helpers!

Today is US Supreme Court Justice John Paul Stevens' last day on the court. He was appointed in 1975. His retirement begins today, and it seemed appropriate to highlight his concurring opinion in Bilski v. Kappos [PDF]. I think you'll enjoy it. He concurs, but in reality he thinks the decision made some glaring mistakes in judgment. He believes no business method should ever be granted a patent, and he carefully explains why, in the course of telling the history of patents in the US. I thought you'd like to know you are not alone in thinking business methods patents are absurd.

He's actually read and absorbed James Bessen's book Patent Failure and he comprehends the dangers and the costs that such patents present. Thank you, Jim Bessen (and co-authors Mike Meurer, Eric Maskin and Bob Hunt), for all your careful and helpful work, educating judges and lawyers to the dangers of software patents. Significantly, Stevens is joined by Justices Ginsburg, Breyer and Sotomayor. Even Justice Scalia, in a separate concurring opinion written by Justice Breyer, agreed that business methods should not be granted patents. That's five Supreme Court judges. As Tom Goldstein of SCOTUSblog points out in his analysis of the Bilski opinion, that means that business methods patents survived by a single vote. And even at that, the opinion stated that few such methods should be granted a patent.

Here's the US Supreme Court's opinion [PDF] in Bilski v. Kappos, at last. The lower court's decision is affirmed, and so no patent for Bilski. However, business methods are not found totally ineligible for patents, just this one. But the door is not swung wide open. From the Syllabus:Finally, while §273 appears to leave open the possibility of some business method patents, it does not suggest broad patentability of such claimed inventions. I think the State Street and AT&T interpretations of Section 101 by the Federal Circuit just got tossed overboard, as I'll show you in a minute, in favor of Benson, Flook, and Diehr. That's a good thing, if so, since it was State Street that opened the floodgates for software patents. If you recall, one dissent to the US Court of Appeals for the Federal Circuit's opinion in Bilski, the one by Justice Mayer, thought the court had not gone far enough. Why? "State Street has launched a legal tsunami....Patents granted in the wake of State Street have ranged from the somewhat ridiculous to the truly absurd." This Supreme Court opinion acknowledges a need to find a limiting principle. And Benson, Flook and Diehr were the three cases cited as technically correct in the article Groklaw published last year, An Explanation of Computation Theory for Lawyers.

Not everyone on the court agrees in all particulars. So it's complicated, and obviously not all we hoped for. But it's encouraging in some respects as to the future. What is clear is that the "machine or transformation test," while useful, is not the *sole* test for eligibility to obtain a patent. That was what the US Court of Appeals for the Federal Circuit had decided was the sole test. The US Supreme Court decided not to decide today about the patentability of software as a category, but they did provide some guidelines, and they didn't slam the door.

Yes, Justice Ruth Ginsburg is on the bench, despite losing her husband in death yesterday. All the other decisions will be listed here.

What did Microsoft know about SCO's plan to attack Linux, and when did it know it? And was it a force behind it?

We've long wondered.

Certainly there have been indications that it was. Michael Anderer's leaked memo in 2003 certainly claimed Microsoft had been funneling money to SCO, but SCO said he was mistaken. Was he? He later also said that Microsoft had a patent plan to destroy Linux or force them to pay for licenses, but that's another chapter. Was he wrong about that? And when BayStar funded SCO in 2004, it was reported that Microsoft had asked BayStar in 2003 to do it, which Lawrence Goldfarb later confirmed in a Declaration submitted by IBM in the SCO v. IBM litigation, despite Microsoft's denial. But it was still a little bit he said, she said, although all the available evidence was strong that Microsoft's carefully worded denial was not, shall we say, the truth, the whole truth and nothing but the truth.

But now, thanks to a volunteer working on doing the exhibits in the Comes v. Microsoft antitrust litigation as text, we find an email thread in Exhibit 8953 [PDF] where Microsoft employees, including the managing director of Microsoft in India at the time, mention SCO in a discussion about heading off the Linux threat in India. The emails are dated September 11, 2002. Given the date, I believe this opens up the question of Microsoft's involvement once again. At a minimum, it needs clarification. If it doesn't demonstrate Microsoft knowing about SCO's plans before they unfurled, what does it mean? I'd like Microsoft to tell us. Because I have a lot of questions about the email thread.

Novell has filed a Bill of Costs in SCO v. Novell for $315,501.19. That reflects, according to footnote 1 of the Memorandum in Support, the "previously allowed costs of $99,639.09, in addition to the $215,862.10 in costs sought in this memorandum." That's just *costs*, not attorneys' fees, so it's things like experts fee, court reporter fees, and fees for transcripts.

In this case, I see also a listing for "Mock Trial DVDs" on page 7. I sure would like to have those DVDs myself. Drool. I'll look into it. Since the company sells them, I'm sure I won't be able to make them available for free, but at least I can tell you about them. And I mention it because some of you may wish to get your own copies.

Here's SCO's bottom line so far: The more SCO litigates, the worse it gets for SCO's bottom line. On paper. They never paid the earlier award, I gather, so it's a loss on paper. They are the Make-Me company.

Another Blank Rome bill has been filed in the SCO bankruptcy, their fourth, this one covering January and February of 2010, which brings us closer to up-to-date, but we are not there yet. That means there will be more bills to come. The total bill is $244,836.50 for fees plus $3,783.55 for expenses, but for now they ask for the usual 80% of the fees, or $195,869.20.

Most of the time reflected in this bill was given to business operations, but a nice chunk of time, $72,029.50's worth, was time that went into the sale of assets and the asset purchase agreement, the sale of the mobility assets to Darl McBride. The bill also covers the loan from Ralph Yarro, the sale of the Caldera domain name, and a bit about the failed Norris deal.

But wait. If $72,000+ is what Blank Rome is charging for their work on selling the mobility assets to Darl and Ocean Park filed bills already for working on the same deal (January, February, March), and Darl only paid $100,000, then wouldn't that mean SCO actually lost money on the sale?

This just in: Google has beaten Viacom on summary judgment. The judge has just ruled [PDF] that Google does qualify for DMCA safe harbor protection. "General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements," the judge wrote. So "the burden is on the owner to identify the infringement." This is huge.

Of course, Viacom will appeal, they say. When I see people ganging up on Google for whatever flaws they are looking at, notice also please that Google fought for the Internet in this case, at great expense. And they won a victory for all of us. In fact, I had decided that if they lost, I would shutter Groklaw. It would have been legally too risky to continue. So, thank you, Google, for not letting the Hollywood content bullies destroy the Internet as we know it.

OIN has just announced a new associate membership program, and Canonical is the first associate member:OIN Associate Members, such as Canonical, demonstrate support and commitment to limiting the effects of patent disputes in Linux. Canonical's activities and those of all companies seeking to adopt and use Linux will be facilitated as OIN works closely with Canonical and other companies that are supporting Linux's growth and expansion. Through the support of its founding members including IBM, NEC, Novell, Philips, Red Hat and Sony, OIN has amassed a broad portfolio of patents, including patents held by nominees on its behalf....

"We view Open Invention Network as one of the key methods through which open source leaders and innovators can deter patent aggression," said Jane Silber, CEO of Canonical. "We are committed to freedom of action in open source, and have noted OIN's efforts to actively defend and enable the Linux ecosystem. By becoming an OIN Associate Member, we are supporting the broad OIN mission and its commitment to enable and protect Linux's advancement." One thing for sure I know about Mark Shuttleworth. He's brave. Microsoft doesn't cause him to cower in fear. And I'll tell you what I know about OIN. They know how to fight to win.

Were you imagining that "Paul Murphy" was going to apologize for his attacks on Groklaw or for being so wrong in his support of SCO? Or that he'd keep his promise to stop blogging if SCO lost? Or that he'd finally admit SCO has no case?

Au contraire. He continues to insult, and he predicts SCO, or a new owner of Novell, will surely succeed yet in fulfilling SCO's plot, in what he believes, if I've understood him, will be a legal Hail Mary pass to go down in history. The new FUD is his article, Suicide by Victory: More on SCO, in which he predicts gloom and doom for Linux because Novell won at the jury trial in Utah.

I know. He's so funny. It makes no sense. But I'll answer him seriously anyway. I'm beginning to wonder if he and Marc Rochkind were the guys who cooked up this whole fiasco. Rochkind, you ask? Yes, he tells us what his "testimony" was, even though Rochkind never testified and his expert report for SCO was and is under seal. I don't know how that strikes you, but it strikes me that perchance "Murphy" has more of a direct connection to the SCOfolk than he tells us. If so, this article might represent a trial balloon, in which case it's worth responding to, in the hopes that the world will be spared the long version.