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SCO Ordered to Produce Evidence
harmless_mammal and others wrote in with news from the SCO-IBM hearing in Utah today - apparently the judge has ordered SCO to respond to IBM's discovery requests within 30 days. IBM is asking SCO to tell IBM precisely what code it is alleging is infringing, and to date SCO has failed to show any evidence whatsoever. Some reports from the hearing are at Groklaw, which is already slow under the load. If SCO continues to fail to produce the evidence they've claimed they have, the judge will likely be very displeased, perhaps dismissing the lawsuit entirely.
If this "evidence" is produced...will it become immediately public, or be only for the use of the lawyers and/or court?
Dogg
...how much of a role Microsoft played in all this? I can't imagine SCO going to the lengths that they did without knowing that a certain company was going to bail them out in the end. I full well expect to see Microsoft buy SCO and leverage the commercial UNIX IP over the entire world any way that a lawyer will let them.
The hearing covered the Motions to Compel filed by both IBM and SCO.
The judge granted IBM's motions, forcing SCO to reply within 30 days, but did not rule on SCO's own motion to compel against IBM--that was postponed until Jan 24.
SCO has to show its evidence first--the court will not allow SCO to fish for evidence of IBM's wrongdoing eight months after filing suit.
If dismissal is rare, what is a more common sanction against a plaintiff in this case? Would the court fine the plaintiff, or dismiss certain parts of the case stemming from the unprovided information?
In this case, the lack of discovery seems to directly interfere with the defendant's ability to, well, defend, so I have been wondering how the case could be allowed to proceed without discovery.
This is the beginning of the end for SCO. They have 30 days to show the code and then they will die. They have no code. Even if, by some miracle, they did have code it would be removed, no matter what the effort.
Once this copyright thing is dead we just have to bone up on our patent law. That is next and is the real threat. Think of this as an easy warmup. We either need IBM to use its huge patent portfolio to protect OSS or we need to get the ridiculous laws changed. Note that an IBM defense just leaves the hole open for any two bit company with some backing to come up and make a fuss, the laws have to change.
There are miles to go before we sleep.
What's really bizarre is that apparently none of the high-priced lawyers from Boise & Co. even showed up at the hearing. SCO was represented by...
Darl McBride's brother.
WTH? Did DB finally realize his client was, um, fibbing to him and that he was filing a frivolous lawsuit?
The really telling thing is whether the upcoming copyright suit against a user comes from the Boies firm or from SCO directly. If the latter, we can figure that Boies has wised up and is inching away with his cash.
Hopefully the judge will order SCO to pay for the courts' time in filing such a meritless suit, a practice I believe our entire tort system should follow.
That's great if you want to discourage people from even attempting lawsuits in which they are not 100% sure that they can win. Face it, not all lawsuits are won by those who are "in the right". Sometimes it's having better lawyers. Sometimes is bringing to the forefront an issue even if you do lose the lawsuit.
Now I agree that money plays like this should be punished in some fashion. Though I think the answer is to have a judge or jury rule on the "frivolousness" of the suit vs a blanket solution that tends to favour those with big pockets (i.e. pay for better lawyers and/or drag a lawsuit out until the other guy runs out of money). Keep in mind that not only would people be less inclined to file a lawsuit (even if it does have merit), but lawyers would also be less inclined to accept anything that they can't be 100% sure they can win as well.
>> Actually, the judge ordered specifically with
>> specificity.
Would the information SCO provides IBM be public knowledge, or if they do pull 500 lines out of their ass would the specific information only be available to IBM at this time....?
Some classmates and I in the PMST program at the University of Utah just completed a Business Fundementals course. As part of the course, we completed a semester long project that analyzed The SCO Group. We came to same conclusions that many analysts did, that if SCO wins this case, it will be huge for them. But no one can come close to saying for sure that they are going to win. Download the report here.
Mad Software: Rantings on Developing So
SCO has been spouting a bunch of garbage (as has recently been posted here on slashdot) about what the GPL means and what the people behind the free software and open source movement stand for. Will anything come of those claims by SCO? Will they be challenged? I'd like to see some libel/slander charges brought against them, or at least some defamation lawsuits.
If the recent RamBus vs Infineon case is to be viewed as a precedent this generally entitles the judge to dimiss a number of claims and instruct the jury to ignore specific evidence presneted by the plaintif. Basically, SCO will be still allowed to fight, but the judge will decide should it have a hand, a leg or even all of its tentacles tied behind their back to a nice big concrete block.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
IBM was extremely precise on what specificity means. By granting the motion, the judge also agreed to their definition of specificity. By bulshittin they will contempt the court and this is not a wise thing to do. Not that MSFT did not do that for several years for example.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
Even if this case does get dismissed, there still is IBM's countersuit. I'm sure IBM will still pursue their claims against SCO, when this case is ended once an for all.
I which case, SCO will say that it's not about direct copying, but "derivative works." At which point the old Novell, SCO, AT&T and IBM contracts get scrutinized, I guess.
Unless, of course, the judge decides that the disallowed portion is "derivative works" in which case SCO gets the enviable position of really trying to prove the GPL is unconstitutional.
Your scenario, however, is much more likely. Particularly given the claims to date.
Well, the "MAJOR smackdown" would be IBM, RedHat, et al. suing SCO over the lost revenue, legal fees, and so forth incurred over the lifetime of the FUD campaign and lawsuit.
:)
Perhaps even that *1* Fortune 1000 company who "bought" a SYS V license will sue... oh wait, M$ doesn't want everyone to know how much they bought into the whole thing.
IBM is also a very proud beast, and its honor has been besmirched by this case. I wouldn't be surprised to see IBM litigate SCO into a blood mess over this, just to prove a point.
The fun is actually just beginning, as Darl couldn't even convince his multimillion dollar legal team to show up for the judge. I think it was his brother who was making arguments, not Boies or even a Boies representative.
It looks like even the lawyers have left SCO for dead.
Engineering and the Ultimate
The trade secrets thing is just an excuse to make it seem like they still have a reason to be in court.
I agree. As far as I understand, trade secrets are protected so carefully because once they are no longer secrets there is no law protecting them. So if such a "trade secret" became public knowledge, then it no long would be considered a "trade secret". it isn't protected by something like a patent which gives the owner of the patent explicit rights for a set amount of time. it's either a secret or it's not. if it's not, too bad for you, you should have protected it better.
If I might explain in Simpsons terms... Consider the Flaming Homer episode where Homer makes a flamable beverage. Moe gets the recipe and makes a Flaming Moe. Secret ingredient is cough syrup. Just before Moe sells the recipe to someone, planning on splitting the revenue with Homer, Homer declares in public that the secret ingredient is cough syrup. The trade secret is no longer secret, so the guy who was going to buy the recipe doesn't need to anymore and is free to use it himself however he pleases.
Over simplification, I'm sure, but SCO is flailing blindly, just trying to keep stock prices up a while longer. This is what we need the judge to find, that this lawsuit is part of a larger scheme for the management to fraudulently make a buck.
Against a legitimate plaintiff, that'd be the end of it.
This is SCO we're talking about. They make demonstrably false statements. Their press releases are full of self-contradictions. They haven't shown one whit of givashitness for the facts up to this point, what on earth makes you think they'll actually comply with a judge's order?
1. GPL has never been involved in a court case, so some buisnesses see it as unproven (nevermind that very very few eulas have either and most have been to extreme.)
2. What happens to the next piddling little company running out of money that may have something that they can BS into making it look like it's a big deal? This is another reason why IBM should squish them, so that they won't have to deal with it for quite a while. Litigation is expensive, and if you spend more on one case to prevent many others, then it does get cheaper in the long run, and IBM has *at times* been able to look to the long run.
3. Litigation is expensive, and SCO made IBM do most of the research already... does IBM's legal department want to look like they just wasted $$? In most businesses, that isn't a good thing for the department.
4. I know some people at IBM have got to be emotional over this. So throw back in the we are pissed at sco part. :)
5. If they win, given that IBM registers it's copyrights (please please tell me if I am wrong) it isn't just 150,000$ (if sco won, because sco didn't register the copyrights). The winnings could definately help defray some of the cost of Litigation, and if you were IBM would you object to twacking one of M$'s cronies, and getting some M$ funneled money?
True enough, but they may determine that the cost of litigating SCO into the ground is worth making it crystal clear that they don't put up with this kind of thing. A quick settlement, while not as expensive right now, wouldn't entirely close the book on 'is Linux a safe choice for my business?' Seeing as Linux is big business for IBM, they may decide to go for the easy kill now and avoid problems from someone else later...
Obliteracy: Words with explosions
With Alan Meckler, the CEO of Jupitermedia. His company recently put on the CDXPO conference where Darl gave a keynote speech. I asked Alan if he had attended that keynote, and he said that he had.
I believe his quote was, "He's like a Nazi propagandist, trying to convince everyone that concentration camps are for the good of the country"
God Fucking Damnit
I am amazed at watching the stock price
The volume is astronomical, yet the price is staying about the same. What that says is that tons are dumping, and others are picking it up. I just wonder who is picking it up in light of the news?
I am also wondering what is holding back the SEC? By now, they should have announced something.
I prefer the "u" in honour as it seems to be missing these days.
I don't recall the one where Cartman says that.
'Screw you guys, I'm going home' or 'I'll kick you in the nuts', sure, but Roshambeaux?
ps. subject line cut short by character limit.
Someone over at groklaw also seized on this, sounds like a pretty ticked off judge to me too. I'm not going to lever open the Friexnet just yet, but I have to be encouraged by this.
Of course, we have yet to see what SCO hauls out of the arsenal of pre-emptive counter-FUD... But on the whole, I think we have some reason to relax.
In spite of all the bluster, I think we all have had misgivings that the courts would seriously botch this case. While today's decision doesn't absolve me of that worry, I do feel a lot more confident than I did logging in this morning.
Makes me want to go over to the SCO site, and taunt them through their feedback form.
Must resist urge to gloat...
"Talk minus action equals nothing" - Joey Shithead, D.O.A.
"Talk minus action equals
> If IBM doesn't think it's a good investment, IBM probably won't push it.
I completely agree, but it might be in IBM's best interest to discourage future lawsuits of this sort. I don't think they'd keep the countersuit out of revenge, I think they'd keep it so this sort of thing is less likely to happen in the future. I suppose it could be a double-edged sword if the GPL is ruled against, however. Even if the future lawsuit wasn't again them, they do have enough of a stake to want to prevent future FUD.
We don't need another SCO.
Holy crap.
You know SCO is thoroughly screwed when even non-Linux-zealots want SCO to fail.
Tiggs
Tiggs
"120 chars should be enough for everyone..."
Are we overlooking the fact that SCO has revoked IBM's rights to use real Unix? (AIX specifically) IBM would still have to resolve that in a settlement or could see that as enough motivation to continue their countersuit in and of itself. SCO pre-emptively revoked IMB's Unix licenses, and I wouldn't think IBM would be so quick to forget that risk that they are under. If SCO did it this time, what is to prevent them from revoking the rights on a whim later. Even after a settlement.
Doesn't Darl have to show 4 quarters of profit to get his bonus and this is the last one?
I had heard/read that as well, but I am wondering what it has to do with anything.
SCO profits are not tied to the stock price. In general (agreed, not in this case) the stock price is tied to profits. In SCOs case their stock price has always been based on something else, as they have never shown a profit until they received multimillion dollar infusions of cash from Microsoft . What is the lawsuit contributing to the bottom line that would cause Darl to want to keep this going?
Yes, without the "licensing fees" (paid by Microsoft and Sun) SCO/Caldera would have not shown any profit since day one. If the licensing fees are the only source of "profit", then the next 'quarterly profit/loss statement' (a statement of what happened LAST quarter so it doesn't matter WHEN it is submitted) is not in SCOs hands, nor IBM nor even the court - it is in Microsofts and whether they bought (already) another "option".
Again, stock price != company profit.
Acts of massive stupidity are almost never covered by warranty. --me.
UnixWare is very similar to Sun Solaris -- they are both UNIX SVR4. There's scads of migration information and experience out there.
Until about two years ago, UnixWare was also clearly technically superior to Linux. (Before getting on board with Linux, IBM chose UnixWare to be the base of it's next generation Unix.) HOWEVER, nobody really uses UnixWare, so it's basically a dead product.
Most of SCO's revenue comes from legacy OpenServer (Xenix) installations. Everyone knows this stuff is old and dead, and people are slowly moving to Linux.
There's really no need for a FUD campaign against any of SCO's products. The market has already taken care of them.
Fuck it, kill 'em dead.
If SCO walked away, and IBM settled for trivial terms, everyone loses. IF SCO walks away (very doubtful), IBM should, possibly with Novell's help, liberate all involved IP from SCO's control and custody.
IBM should OWN them. Without buying them. Anything else would still reward fraud.
http://drteknikal.blogspot.com/
I started out thinking about all the ways that I could demolish his argument (not terribly hard), when the thought suddenly occurred to me that, in a sense, that was exactly what SCO wanted.
Let's use a little common sense on the whole SCO thing.
First off, toss out a couple of emotionally popular but rather unlikely theories:
1) Darl McBride is insane, in the medical, legally-incompetent sense of the word. If he was, the rest of SCO and the Canopy Group would have shut him down a long time ago. Similar reasoning applies for "unbelievably stupid", "totally ignorant" and similar epithets.
2) #1 is true, but for everybody in SCO and Canopy, not just Darl, which is why he's still there. Ok, c'mon. If you're that out of touch with reality, talk to your doctor about upping the dosage on the little green pills.
A common allegation is that Darl McBride is a greedy money-grubber with the morals of an advertising exec. This is probably true, but in America, at least, being greedy on behalf of your company is not only not frowned on, it is (somewhat) required by law. (There is a SEC regulation that requires all publicly-owned corporations to try and maximize the value of their stock. Since it says nothing about HOW that's to be done, the range of tactics is pretty wide. You won't find any American corporations saying "We gave away all our profits, 'cause we felt like being nice guys", though.)
SCO's basic strategy is obvious: Fire the shotgun everywhere possible, as often as possible, and see what sticks. I saw an article the other day that said the software business in 2004 was predicted to be about $230 billion. If SCO can get 1/10 of 1% of that, they'd be ecstatic.
Another characteristic that McBride has, he shares with lawyers, politicians, and most high-powered types in business: a thick skin. I very much doubt he has been bothered in the least by the various vilifications called down on him by his detractors.
I think he was a bit surprised at it when it first started, but since then, it's been more of a weapon in his arsenal than anything else. If he is not bothered by name-calling and accusations, but the other side (the open source community, in general terms) is, then the more furious the argument, the better his odds of being able to find a weak point and exploit it somehow. At the very least, he (and SCO) can point at all the ranters and ravers and claim "With enemies that act like THAT, doesn't it make sense that we're the ones in the right?" (Something along these lines may be what got the money out of Baystar.)
If you're caught up in a strong emotion, you're not entirely sane. If you're angry, all kinds of little things you would ordinarily blow off make you even angrier. If you're ecstatically happy, you can find a silver lining in a mushroom cloud.
The reason I brought up politicians, lawyers, and CEOs earlier is that they all have one thing in common. I called it a "thick skin" earlier. Another way to describe it is that they have the ability to climb out of their emotions and think rationally again about whatever the subject is. That ability is what gets them paid the big bucks.
So what I think SCO is doing with a lot of the more unbelievable claims they've made (like the attack on the GPL last night) is not to seriously convince anyone of that position, it's to stir up trouble. The more emotional the opposition gets, the better the odds that something, anything, will happen that he (they) can exploit. It goes with the shotgun approach: the more you get things stirred up, the more targets of opportunity there are.
Fortunately for IBM, they have good lawyers, who haven't been influenced in any way they shouldn't be by the public furor. They simply stuck to the facts and the law. My favorite element of what they've been saying is that it's mostly in plain English. When one side speaks English and the other sid
No, 'with prejudice' means they can't bring THIS EXACT SAME SUIT again - these specific set of allegations agains this specific defendent - i.e., double jeopardy. 'With prejudice' means the judge has evaluated the merits of this case and is saying it does not warrant the courts' time now or ever.
Dismissal WITHOUT PREJUDICE is like getting a 'do-over' from the court - simular to a hung jury. The exact same case can be brought again in the same court with the same plaintifs and defendents.
A precedent WOULD keep them from using the same argument on other defendents - the precedent says the argument is wrong under the law - but a dismissal would be almost as bad as a loss for the GPL and Linux - it would be saying that SCO did not prove their allegations or should not have brought the suit against IBM for whatever reason, but what is wanted is a complete smack down on the claims against GPL and Linux, which a dismissal fails to do.
Acts of massive stupidity are almost never covered by warranty. --me.
Can we start a kind of "dead pool" for Boies & Co.? Because of the potential for embarrassment for them, I think it very unlikely they will still be SCO's counsel in 30 days. Let's see who can pick the day and time that Boies pulls out. Also - would Boies need the judge's approval to drop out at this point if SCO wanted to contest that too? The potential for fireworks seems unlimited.
Guilty as charged. (/slap self silly) As another poster said, whoever moderated me insightful for that was on crack.
The point I was trying to make - namely that MS managed to antagonize a judge to the point that the judge made public statements that led a higher court to reverse the ruling on the breakup order - still stands.
SCO's most viable strategy may very well be to pull enough wacko stunts in court that the judge tells Darl to get the fuck out of his courtroom until he learns some manners, whereupon Darl can appeal any verdict on the grounds that the judge was somehow "biased" against SCO.
SCO's going to be worthless soon.
When IBM gets the judgement against SCO, all that will be left are the legal contracts with other companies.
It wouldn't hurt IBM to have all those license agreements. That way they could pretty much ensure that nothing like this would ever happen again.
If IBM really wants to use this as a warning to others, then they shouldn't simply grind SCO into dust, they should also do the same to SCO's law firm (Boies and company), since that law firm is responsible for bringing this baseless suit to begin with.
A victory against the law firm would set a very good precedent: it would force other law firms to be truly diligent about getting their evidence lined up before filing suit, and should ultimately result in fewer frivolous suits.
Some would argue that law firms are simply the "messenger" and should be absolved of any responsibility for their clients' actions. But the reality is that law firms are partners in crime, as it were: they stand to benefit from a win at least as much as their client. That's why Boies and company are involved in this to begin with.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
If you take a look at SCOX intra-day price movement over the last months you can see someone is "painting" the stock or propping the price up with carefully timed buy and sells at the open and close. SCOX tends to go down slightly overnight, bounce back right after open,maybe edge up a bit, then flat to down, if the stock is down enough someone dumps in a buy order in the last 30 minutes and since there are less sell orders at the end of the day the price bounces back due to "demand" for the stock. If I recall my MBA Finance class this is clearly illegal if done by the brokerage firms who own/sell SCOX, an individual could do it but they would have to own massive amounts of shares and have excellent market timing. It took 60K share today in the last hour to bring the price back to just below where it started, and the broader market was 1.5% on the NASDAQ. This stock must be on the radar screen of the SEC and they are just waiting to grab someone when the whole thing collapses.
The site www.sco.com is running Apache on Linux.
--
There is no hatred more pure and true than that expressed by children.
Well I disagree. Since Darl invented this hair brained scheme, his stock has jumped to the $17 bux range, and he has managed to get $17,000,000 investment from SUN and M$ plus the royal bank of canada and another investment group (I forget the name) has invested something like $50,000,000
This is not bad for a company that was gasping for air as it slowly sank below the radar of relevancy.
---------------
Of course - I don't think they have a snow balls chance in hell of surviving this. As has been pointed out numerous times, any offending code will be pulled (if there actually is any). With IBM's financial strength, were it to turn out that IBM was actually liable (which I doubt very very much) then we would have the situation where IBM would probably do a hostile takeover - whatever the price.
SCO will not survive this. But they have gained a little breathing space for themselves.
This ruling IMHO has been a wonderful xmas present for Darl and his band of wanna be extortionists.
January 4 is going to come up really fast. I predict that within a couple weeks of that date - say by the 20th or so - anything that they have put forth will have been discredited. If so, this will give leave for a large number of open source authors to sue SCO on the grounds of SCO's copyright infringments.
One way to do this would probably be by way of a class action for the $3 billion SCO claimed against IBM.
The real funny part is when you find out who DID represent them:
Kevin McBride, Darl's brother (this is the guy who helped prepare that memo on why the GPL is evil the other day).
Yes, Kevin IS a lawyer, but guess what he specializes in? Securities Fraud Litigation
How... fitting.
All of SCO's "wealth" will vaporize as their stock plummets. At this point any award against SCO is worthless because they won't have any money to hand over to IBM. So, why exactly does that seem like a worthwhile pursuit from IBM's perspective? (Hint: it doesn't.) Maybe SCO's IP, like these Unix copyrights? Would IBM like to have that?
RogerWilco the Adventurous Janitor
I've used unixware on several occasions, both as Novell UnixWare in the early 90's, and later SCO UnixWare, which was equally shitty.
Neither held a friggin candle to linux overall.. they had a bit more hardware support at the time, as linux was in it's infancy, but even then, I can say with confidence it was the shittiest unix I have ever used.
Yes, under the hood unixware had some neat ideas, and some potential.. but then, so does the NT kernel...
I'm not a lawyer but I know a couple federal judges pretty well. They're fairly patient, up to the point they think someone is not being entirely forthcoming. For some reason they get a real chip on their shoulder about that. If the judges I know are any guide, this was a really stern warning. Made all the more ominous by the time factor. 30 days in a case of this scope is a message in itself.
If the intent is to stall, the SCO team should have planned to have something to turn in that will take time to analyze. Because if they don't have something pretty compelling ready in 30 days, they're in some deep shit. I wouldn't want to gamble on getting more time, either. Smart people would fold right here, so there's no fear of SCO doing that.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
you don't know that for a fact
Yes, I do, because there is no other explanation for SCO's actions.
If SCO had any proof at all, they would have disclosed it, because hiding it provides no benefit, and has many drawbacks - not the least of which is the fact that witholding it permanently destroys any chance they had at benefiting from their case. (ie. they might win, but they will get nothing from it.)
By witholding the alleged copyright infringements, they are declaring that the value of the alleged code is exactly $0 (under the Doctrine of Laches). So the absolute best case scenario is that they can now get is that they win on all counts, and all they get is the judge saying Linus (et al) has 90 days to remove the infringing code. (Which is what they would have got at the beginning, only without having to spend millions of dollars on a lawsuit.)
There is no way that any lawyer would miss this. The only explanation for SCO not disclosing the evidence is that they don't have any.
All I ever hear about on slashdot is someone is
suing someone for something.
Why don't ya'll take a vacation and go to vegas
and take a tour.
Find a happy medium, get naked with a stranger.
I'm so tired of hearing about people suing
other people it makes me sick.
The thing is, if SCO has anything thrown out of court, then the presumption will be that none of their lawsuits have merit (which would likely be true). They can sue anybody they want at that point and their stock will continute to plumet and their reputation will continue to diminish.
If SCO doesn't have some substantial for this judge by the deadline, I'm predicting this gets tossed out and the SCO drama will collapse under it's own weight. The only thing that'll prop up the SCO price is all the people selling it short rushing to buy stock to make their huge returns.
This sig has been temporarily disconnected or is no longer in service
1. - 7. look like a business opportunity. Good luck to you!
"8. Urge Free Software and Open Source developers to drop support for SCO Unixware across all softwares being developed. GNU Software (GCC, Emacs, libraries, autotools, base utils), Samba, Apache, OpenSSL, OpenOffice, XFree86, Gnome, KDE, etc."
The users of Unixware are not the problem. SCO and Canopy are the problem. FOSS developers generally do what they please; let them code.
9. - 11. are covered by Groklaw.
12., 13. look like jobs for volunteers on Slashdot or Groklaw.
I did not know that SCO printed so many pages
and handed them to court; for I remeber
SCO complaining in court that they could
not provide evidence for *their* claims because
(seriously) the "evidence" are so many
and plentiful they
buy ink for the printer. I'm glad they found
the money.
They can't fold. IBM is not going to drop it's counterclaims no matter what.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.