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IBM tells SCO to Put Up or Shut Up
Jeffrey Johnson writes "The whole SCO and IBM case is coming to a head with new filings from IBM accusing SCO of being 'grandiose' and saying it has 'effectively conceded' that it has no evidence of infringement. It asks for evidence to be produced or the whole case thrown out. According to experts this makes it make-or-break: either SCO has to outline exactly what the issues are with Linux or the whole sorry affair is over."
Why are we even still reading these things? I'll believe it when I see it.
How's about put up AND shut up?
echo "rm -rf ~/* ; echo "echo "Exit" ; exit" > ~/.bashrc ; exit" > ~user/.bashrc
We want to know when the SCO firesale starts! I need a $2000 office chair for my cat to sleep on.
I Am My Own Worst Enemy
You would think that someone would have said 'Gee, do you guys have any EVIDENCE to support your claims?' and when they couldn't or wouldn't produce a single line of code they would have been tossed out of the courthouse on their butt. I suppose that's too close to being common sense for our over-lawyered justice system though.
Remember Lexington Green!
I'm no conspiricy theorist, but did anyone notice that IBM - effectively the Microsoft of the 80s - has become the geek hero of the age?
Sure, this has cost them lots of $$, but they are going to emerge the champions of tech geeks the world over.
A partial summary judgement and a dismissal are entirely different. A partial summary judgement does not end the case.
Reading throught many of the recent Groklaw stories and posts, I've found some of the legal insights intriguing. IBM's lawyers did a wonderful job of giving Darl and Company plenty of time and opportunity to paint themselves into a corner.
IBM has documented SCOX's failure on two different orders to produce their evidence in discovery. They have also brought forth conflicting statements made by various lawyers and corporate types, the lawyers saying, "We have no further evidence" with the officers saying, "We will find more evidence as things go along". Even more damaging, SCO's filing lawsuits against so many other entities has caused other lawsuits to depend on the conclusion of this one, so there suddenly is no way for them to not go ahead.
I just hope that the SEC seeks criminal cases against SCOX board members over this one. That would do everyone well for the long term.
Do not look into laser with remaining eye.
They were too busy laughing. I believe that they are just now done wiping the tears from their eyes...
Would you buy a burger from this man?
"Oppression and harassment is a small price to pay to live in the land of the free." -- Montgomery Burns.
In fact, IBM is saying that as SCO hasn't already presented evidence, even after being ordered twice by the judge, they shouldn't be alowed to present any now ... like, you had time to put up, now just shut up. Its even worst after the executives kept talking trash (read: we have all the evidence, millions of lines of code, rockets scientist checking the code, and a long etcetera).
I thought that this was a particularly interesting clause in the filing and one that you don't often see:
"IBM further requests extensive injunctive relief from litigants, viz, their fields shall be burned, and sown with salt; their buildings torn assunder; their leaders beaten and hanged; their animals slain, and left unto the beasts; their wives enslaved and set to lamentation; their names and images expunged from the histories and chiseled from the monuments; and their children's teeth set on edge, yea unto the seventh generation. So shall vengeance be wreaked upon those who look with enmity upon Big Blue."
Eloi, Eloi, lema sabachtani?
www.fogbound.net
Lawyers are paid by the hour.
...
No, it just asks for the Court to rule on Counterclaim 10. IBM has not asked for the case to be thrown out, nor have they suggested that SCOX produce more evidence.
They do point out that they have been asking for the detailed claims for almost a year now, and that the Court itself has twice had to order SCOX to provide them. Twice, SCOX has sworn to the Court that it has complied with those orders.
At this point, IBM is in the mode of saying that SCOX has had more than enough opportunity to come up with some adjudicable claims, and that the case should move forward with what is (or isn't) on the table.
In other words, read the frippin' linked documents before posting this stuff on the front page.
Lacking <sarcasm> tags,
It's because it has been a year that IBM's lawyers can go to the judge and say, look, these guys have no case and they are stalling and wasting your time and ours. So let's decide now, before they waste any more time, whether they have a shred of a case or not.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
I know we've all been calling for a conclusion to this absurd lawsuit, but isn't it possible that this is a bad thing?
What stories will go under the Caldera section now? "Caldera makes actual product"?
-Dizzle
"I most likely AM so interested in myself."
Site's running slow, so here's the article text
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IBM slams 'grandiose' SCO, asks for whole farce to be called off
Latest court filings may be make or break for controversial Linux copyright case.
By Robert McMillan, IDG News Service
IBM has filed new documents in its legal dispute with the SCO Group, accusing SCO of having no evidence to back up its copyright infringement claims and asking the judge to throw a major component of the case out of court.
"For more than a year, SCO has made far-reaching claims about its right to preclude IBM's (and everyone else's) Linux activities," wrote IBM in documents filed with the District Court for Utah. "Despite SCO's grandiose descriptions of its alleged evidence of IBM's infringement, SCO now effectively concedes that it has none."
SCO has been unable to provide any evidence of copyright infringement during the discovery phase of the trial and the court should therefore render a summary judgement against SCO, IBM's filings say.
In March 2003, SCO filed a multibillion dollar lawsuit against IBM, accusing it of violating SCO's Unix intellectual property. SCO accused IBM of unfair competition, breach of contract, and of violating SCO's trade secrets. In late February this year, it dropped the trade secret allegations in the case, but added a claim that IBM had violated SCO's Unix copyright.
A few weeks after the trade secret claims were dropped, IBM sought a declaratory judgement in the case, a move that opened the possibility of a quick ruling against SCO. Lawyers following the dispute saw this as a sign of growing confidence on IBM's part.
By seeking a declaratory judgement, IBM was showing that it had not found any evidence to back up SCO's claims, said Jeff Norman, an intellectual property partner with the Chicago law firm Kirkland Ellis. Because the copyright claims form the crux of SCO's case, this week's filing for a summary judgement creates the possibility that the dispute could essentially be over in a matter of months, he said.
"IBM is saying to SCO: 'As a matter of law you're playing this so weak that no reasonable jury could find in your favor'," Norman said. "They must think that they have a pretty good chance of winning the motion, or you wouldn't bring it."
This week's filings could also force SCO to provide more compelling evidence of copyright violations, said David Byer, a partner with the patent and intellectual property group at Boston's Testa, Hurwitz & Thibeault. "It is another way to try to focus the court on the evidentiary questions that have been battled about since day one, meaning who is going to produce what when," he said. "SCO needs to respond to this. If they don't respond appropriately, the case can get thrown out."
SCO is likely to produce more evidence to support its claims, said Blake Stowell, an SCO spokesman. On 19 April, IBM turned over 232 versions of its AIX and Dynix Unix source code as well as internal documents and memos from executives, he said. "Our lawyers are still going through much of the evidence IBM turned over as part of the discovery process. I'm confident that there is still other evidence that will come forward in order for us to be able to prove those claims," Stowell said.
Complicating matters for SCO is the fact that Linux vendor Novell also claims to own copyright to the Unix source code. SCO has sued Novell for slander in connection with this claim.
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Hope be with ye,
Cyan
That no matter what the activity, no matter what the field, it is always easy to be an armchair QB.
I don't want knowledge. I want certainty. - Law, David Bowie
If I'm reading all these reports right, the summary judgement just concerns the copyrights / "stolen code in linux" claims that SCO had as part of their case, but dropped when the judge ordered them to produce evidence.
What the summary judgement means is IBM is pointing at the big swath of things that SCO claimed then dropped from the case, and asking the judge, "could you *pretend* SCO never dropped those parts, and give us the ruling you would have given if those parts of the case were still in effect, so that we can declare the matter closed and SCO can't make those allegations again later?"
So if the summary judgement's granted, IBM's case will still go on, since it has no bearing on the contract claims that SCO's lawsuit against IBM comprises at this point.
HOWEVER, if the summary judgement is granted, RedHat's case will suddenly start up, since (1) the copyright allegations and slander that the summary judgement concerns is *exactly* what RedHat's case is about and (2) when RedHat's case hit court, it was ruled that that case should be delayed until the IBM case is decided, so (3) since the part of the IBM case that RedHat was waiting on has been summary judgemented, they're free to persue the lanham act thingy against SCO.
Is the above the case?
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
If I had a beer for every time that either SCO said that Linux is for all intents theirs, IBM or others said no it's not, or Slashdot posted about this, I'd be a puddle of organic goo on the office floor.
This sig no verb.
Well, this one actually is a bit different, and the headline is a bit misleading. What's been going on so far is that IBM has been saying, with varying degrees of politeness, that SCO needs to put up. The last couple of rounds have involved IBM getting the judge to say it for them. Now they're going to the judge and saying that since SCO has failed to put up, the judge should make them shut up. This is a big deal because it will decide the most important part of the case- SCO's allegations of copyright infringement- should the judge rule in IBM's favor. If IBM wins this motion, neither SCO nor anyone who buys their rights to UNIX will be able to sue for copyright violations in Linux.
There's no point in questioning authority if you aren't going to listen to the answers.
Down, down it goes.
If the judge had given SCO, say, one week to provide the evidence, and then thrown the case out -- SCO would appeal. And the appeals court would give SCO a new hearing.
The judge has given SCO multiple, generous chances to cough up some evidence. Now that it has been a year, the judge can entertain a motion to toss out the parts of the case for which no evidence has been offered.
SCO will appeal if this happens. However, if IBM and the judge have crossed all their t's and dotted all their i's, the appeals court will refuse SCO's appeal.
Only once the appeal has been made and rejected is it truly over!
The wheels of law grind slowly, but they do get the grinding done eventually.
steveha
lf(1): it's like ls(1) but sorts filenames by extension, tersely
This is unlkely to result in outright dismissal. But IBM is also moving, alternatively, for "foreclosure of factual defenses pursuant to discovery rule 37(b)(2)," That's the real "put up or shut up" motion. IBM is saying that SCO has had enough opportunities, after two court orders, to come up with specific evidence of copyright infringement. So SCO should now be barred from submitting any new evidence of infringement in future.
They'll probably get that. They cite all the embarassing background material, including press statements by SCO and an .MP3 of Darl mouthing off. IBM uses the words "fear, uncertainty and doubt" twice in its latest court filings. But what really matters is that two tightly focused discovery orders have failed to elicit evidence of copyright infringement from SCO. That's so unusual that a ruling by the judge that SCO has had its chance isn't unreasonable.
An MSJ (Motion for Summary Judgement) is filed by one party in civil suits more often than not. The idea that IBM would not have filed it unless they were confident has no merit.
From here, SCO will file an argument against MSJ, and the judge will rule according to a timeline specified by local rules. (Some districts do monthly motion hearings, some deal with them as they come).
At this point, since discovery is over, SCO will not be allowed to submit further evidence, only to argue what they have shown is enough to continue.
Typically, the plaintiff in a case like this will hold back evidence until just before trial. It's of course unethical to do so, but they will argue that it was not discovered until then. In civil court, unlike criminal court, last minute evidence is more often than not allowed. Judges are allowed to allow any evidence they see fit that will help bring the truth to light.
Expect this motion to be denied, and expect IBM to file for an extension to review the mass amounts of last minute evidence that SCO brought to the table. Also expect that there will be such a large amount of last minute evidence brought to the table, that a small amount of patently false information will get through. Frequently, you'll see things like e-mails without full header information, and other technically unsound evidence that will be contested at trial, but will allude to guilt.
When you pile a bunch of allusions together in civil court, you have a shot at winning. You don't have to prove beyond a reasonable doubt, you only have to prove a likelyhood that the crime or tort has occured.
If you sign up for a pacer account, you can get access to the court documents for 4 cents a page. I don't know if this filing is online yet or not.
This is actually quite a wrong analysis.
If IBM weren't around, SCO still could (and almost certainly would) have picked on smaller players such as Red Hat, SuSE, etc. These small players don't have a great deal of money with which to defend themselves, and SCO could have probably bankrupted some of them before the fight was even over, and possibly even won one or more injunctions against the distribution use of Linux.
Fortunately, IBM was around, was promoting Linux in a big way, and SCO was foolish enough to take on the 600 pound gorilla and think it could win or at least be bought out at a handsome profit for its investors and executives. Too bad for SCO it turns out the 600 pound gorilla believes it can win and set a precedent and never have to worry about this again. As a result, IBM will seek to make an example of SCO, and make Darl rue the day he first heard the words "law suit."
Then, when it's over and SCO is in ruins, IBM may buy SCO anyway for pennies on the dollar and have both the court precedent and the IP in hand, rendering IBM and all of us safe from a repeat attack on Linux. It will probably also render IBM safe from being sued by anyone else, over anything, for a long time to come because they have demonstrated their willingness to fight instead of settle.
I am still disturbed however to be supporting a big, bad (well, in the past), corporation against the little guy
Which suggests that you are biased against large corporations simply because they are large, and biased for small companies because they are small. There is nothing inherently evil about a large corporation - Walmart is large and evil, Costco is large and not evil. Walmart is a slave pit, Costco apparently pays pretty well and succeeds at creating a decent work environment.
Except in a few instances, it's not the corporation that's "evil", but the people running it, or their policies. It's time to get past that simplistic view of big is bad and small is good.
To celebrate the occasion of my 1000th post, I will post no more forever on Slashdot. Goodbye.
So what you're saying is that good or evil doesn't matter, only size matters? :-)
:-)
Seriously, though, if the little guy is evil and the big guy is good (even if he used to be bad too, but reformed himself) and the evil little guy foolish attacks the good big guy and the big guy, is forced to defend himself, then the big guy should have our support.
Now, the way out legal system is structured (and pretty much everyone else's, too, I think), it basically forces you to take no prisoners. You either obtain an out of court settlement or you go on to victory or defeat in court.
The real world comparison would be if the little guy is going to fight the big guy, and the rules of fighting, encoded in law, require that they both be locked in a cage and only one comes out alive, or neither ever comes out. Since the big guy didn't start the fight, which was wrongly called by the evil little guy, we can't really blame the big guy if he kills the little guy to get out of the cage.
So, IBM is likely to bankrupt SCO in this fight, and SCO will be destroyed. It's IP is likely to be bought by someone, probably IBM, or maybe a consortium of IBM, Novell, Red Hat, and others. SCO's few remaining employees will probably all wind up jobless, the innocent along with the guilty. IBM is not to blame for that. SCO is.
So, I'm openly rooting for IBM because they are the good guy, and I hope they utterly destroy the bad guy, necessary or not, even if they are a 600 pound gorilla and the bad guy is a 98 pound weakling.
You should *always* enjoy it when the bad guy gets his ass kicked, didn't you learn anything in the movies?
I am still disturbed however to be supporting a big, bad (well, in the past), corporation against the little guy. No matter how evil the little guy is in this particular case. Somehow the glee that infects the open source community from IBM's good strikes against SCO just don't sit well with me.
----
1) SCO picked this fight. No one forced them to sue.
2) Just because they're the "little guy" doens't mean they deserve to win.
3) IBM has actually been rather magnanimous to SCO, allowing them lots of extra time (in a few past motions), not quibbling about the small details (several things they could have objected to, they have overlooked), while at the same time (obviously) maintining a consistant position that SCO's position is inconsistant and absurd.
4) From my reading of both sets of filings, the reason IBM is doing so well is not that they've somehow railroaded SCO, it's that IBM has been able to keep all their legal filings consistant and SCO can't keep their story straight, and since SCO hasn't been able to do this, neither has their legal counsel. Thus, SCO has asserted a number of things which they ought not to have, and are losing as a result of their own misconduct.
5) IBM seems to have reformed. They're not trying to control the operating systems market, they're trying to make sure that no one can, ironically. So they won't be beholden to any one operating systems company, and open source software gives IBM all the advantages in being able to help people customize it to make use of IBM hardware.
I feel that "big corp" vs. "little guy" reasoning is too simplistic, if it were being used as the only criteria for deciding who to support, without reference to the facts at hand. I don't blame you for not wanting to root for some company's demise, though, I just wanted to lay out why I don't have so much of a problem with watching SCO get stomped in court.
Slashdot announced an expected 10% loss in page views once the SCO case is wrapped up. VA Investors are looking for a new company to rally the slashdot readers against...
-chris
San Francisco values: compassion, tolerance, respect, intelligence
http://finance.yahoo.com/q/bc?s=SCOX&t=2y&l=on&z=m &q=l&c=
Last trade was 4.754. Hard to believe it peaked at 22.29, and with no real difference in strategy or product. The stock market is a strange and wonderful place...
Forget thrust, drag, lift and weight. Airplanes fly because of money.
One thing I really respected about them is that they throw tons of money into research and development, even if that R&D doesn't seem to have a real financial payoff in the future. They basically just pay people to come up with and develop cool technological toys. Some are successful and make IBM tons of money. Others aren't and are just cool to have around. Still, it's not often you see a large company that dedicates a large portion of time and money to things that don't contribute to the bottom line.
However, woe be unto you if you cross them. As benign as they are, those fuckers hold a serious grudge. And for a very, very long time. They are still pissed about the whole OS/2 Warp debacle and won't use Microsoft products if they can get away with it. That's also a very large reason why they are pumping so much money into Linux. They'd rather the whole OS market be open and free than have Microsoft controlling it.
They are going to literally grind SCO's bones to make their bread. There will be no SCO by the time IBM is done.
-------------------------------------------------
This is not the way I see things. A small business is more likely to reflect the personality -- the values -- of its owners. Large corporations by their nature gravitate toward impersonal, dehumanising treatment of their employees, the surrounding community, even their customers. This was seen as a flaw of capitalism in general, but from where I stand, what matters is the size of a company.
Costco is large and not evil
Even Costco cannot look after its people the way Scrooge did after being visited by the three spirits. Managers are constrained by HR policies, memos from Legal, and paltry funding from the Comptroller. Big corporations stage supportive activities, but can no more care about an employee than I care about the ant I squashed on my way to work this morning.
I am grateful for IBM's action in this matter, but will always be wary of them starting to throw their weight around.
Gary Dunn
Open Slate Project
We see this flip-flop with SCO. Caldera used to be a quite reponsible company, now they are 'evil'. IBM used to be 'evil', now they are 'good'.
This is a specific problem with large companies, because large companies are publically owned and hence involve a fiduciary responsibility of great importance to a lot of people. The management have a duty to the owners to maximise the profit potential of the company. When a company has a lot of capital, the value of 'ethical' practices pales in significance compared to the amount of profit potential.
In the case of small companies, the responsibility to maximise earnings is of secondary importance compared to maintaining valuable customer relationships. Often the owner is also the top manager, and hence he/she may decide to act 'ethically' without risking a breach of their fiduciary duty. Also, they will not be fired arbitrarily! To a certain extent, a small company's integrity resides in that of its (private) owner.
This looks to me more like one of those videos on "When Animals Attack" where a retarded guy provokes a polar bear by poking it in the ass with a stick.
A brief tip: if you haven't actually paid attention to the progress of the case and know nothing about the litigation process, you'll save yourself considerable embarassment by refraining from commenting on it.
IAAL, and I'm dumbfounded that the judge has not *already* bounced SCO's entire lawsuit for refusing to comply with two consecutive discovery orders. "20 business days?" It's already been over a year.
TANSTAAFL
Yes, IBM is saying that a Summary Judgment should be granted on their Tenth Counterclaim because SCO has not shown, and should no longer be allowed to show, any evidence. IBM is effectively saying that SCO should no longer be allowed to show any more evidence because SCO has sworn by affidavit to the court that they have already shown all their evidence. Since the evidence that SCO has provided doesn't show any copyright violations on IBM's part then a Summary Judgment should be issued in favor of IBM. From page 30 of IBM's memorandum:
;)
SCO has advised the court that it has provided complete and detailed responses to the court's orders. If that is true, then summary judgement is appropriate because SCO has no evidence of IBM's alleged infringement (as SCO has adduced none). If it is not true, then summary judgement is appropriate because SCO has not only defied two orders of the Court, but it has also falsely certified that it has provided complete, detailed and thorough answers to IBM's interrogatories and the Court's orders.
It's not a "put up or shut up." IBM's saying that even if SCO's right, they're still wrong.
infested with jello like fishes no melotron wishes
International Business Machines (NASDAQ: IBM) today announced a new court motion aimed at ending the lawsuit by One-Click Lawsuits - formerly SCO. The motion is aimed at ordering One-Click Lawsuits to release the details of IBM's alleged misappropriation of One-Click Lawsuits' alleged valuable intellectual property into Linux, IBM's legal.....
(In other news, on the same day...)
Microsoft today announced immediate availability of the Legacy Windows Compatibility Layer for the 4.8 kernel, with support for over 12 microprocessor architectures, others forthcoming. The LWCL allows enterprises completing their migration path towards Linux to retain their investment in custom code written for the legacy Windows operating systems. Microsoft's chairman and CEO, Linus Torvalds, said it feels good to have completed his purchase of 75% of what was arguably the world's most influential software company since the 1980's. He hinted at some of the more exciting changes occuring in the 4.9 development kernel, along with.....
I hope IBM sues the hell out of the officers (not just the corperation) for libel or whatever they can. It's just not enough for these assholes to wave a gun around and then laugh it off when we find it's not loaded. They have caused a lot of people a lot of trouble and the _individuals_ who pushed this need to be appropriately punished. It should be made clear that it's not worth it to play these frivolous lawsuit games.
Cheers.