Subject: Re: SCO Drops Linux, Says Current Vendors May Be Liable (fwd)
From: Greg Broiles <>
Date: Sat, 17 May 2003 19:04:11 -0700

On Sat, May 17, 2003 at 05:28:16AM +0100, Karsten M. Self wrote:
> In the presence of an affirmative defense (eg:  fair use, prior
> authorization), the plaintiff would have to demonstrate, with a
> preponderance of the evidence (in a civil case such as SCO v. IBM) that
> no authorization or exception to exclusive rights existed.

No, that's still wrong.

If the defendants offer evidence which might (or might not- it's all
up to the finder of fact) establish an affirmative defense, the
plaintiffs are free to simply ask the finder of fact to ignore the
evidence as unreliable, or as insufficient to draw the conclusions
that the defendants propose. 

I think you're getting confused by the difference between argument and
evidence - if you reworded the above to say that "SCO should be
prepared to address IBM's argument that their use of SCO's code was 
pursuant to a valid license", then it wouldn't be wrong. 

But, worse, aren't you already giving away the farm, by assuming that
IBM has copied SCO code, but saying they've got a good defense? 

My impression is that SCO has, thus far, been reluctant to expose the
"smoking gun" code samples that actually show copying in the 
first place - so, in my mind, I'm still waiting for them to show me
that there ever was a copy made, without getting into whether or not
the copier had a right to make it. There's a big difference between
saying "I didn't shoot that guy" and "I shot him, but I had a good

Greg Broiles