Slashdot Mirror
SCO's Finances, Legal Case Take Hits
geomon writes "This afternoon, SCO will host a conference call where they will present '04 third quarter financial data. The news isn't expected to be comforting to SCO investors as they are coming up a bit short; earnings and dividends will take a substantial hit. The only bright spot for the company is the settlement with BayStar, a deal that will leave most of the cash they received from the investment house in the hands of SCO management, if only for a short time." Reader ak_hepcat writes "Groklaw has posted the text for the latest IBM memorandum in its case against SCO. In a nutshell, IBM accuses SCO of not only wrangling the legal process to keep delaying the eventual resolution of this case, but they go so far as to pull the curtain away and show that this table never had any legs to begin with. I'm no marksman, but I can tell when something is full of holes."
In a nutshell, IBM accuses SCO of not only wrangling the legal process to keep delaying the eventual resolution of this case, but they go so far as to pull the curtain away and show that this table never had any legs to begin with.
Seems William Shatner should have been their spokesman, IIRC as a kid he cut the legs off his parents dining table and should have some experience here...
"It's more doomed than we thought, Scotty, beam us up NOW!"
A feeling of having made the same mistake before: Deja Foobar
that and Darryl's shiny metal ass.
An Indian-American Hindu committed to non-violent thought/speech/action alarmed by the global explosion of radical Islam
Reading SCO news is like watching someone fall out of a tree and hitting every branch on the way down.
It used to amuse me, now it annoys me. I'm just waiting for them to shrivel up and go away.
Seems like slashdot pundits have been predicting the imminent death of SCO and it's legal claims for the past year. They keep coming up with cute analogies (i.e. table without legs) but I'm wondering if Slashdot is not really giving us an objective viewpoint here.
that at the upcoming press conference SCO will announce that IBM does not exist.
This will dissipate any investors' fears pertaining to the validity of the lawsuit.
I'm just guessing here, but if I'm right his is very bad for SCO. It would mean that Novell keeps the UNIX copyrights, the IBM case is limited to the Monterey contract and the Red Hat case can proceed with a finding on record that SCO has been blowing smoke about its UNIX IP.
===== Murphy's Law is recursive. =====
I'm no marksman, but I can tell when something is full of holes.
Thats good, because SCO investors must have the hole spotting ability of a depressed star-gazing lemming...
Didn't Microsoft invest a lot of money in them? If so thats a "bright spot". Or was that last querter?
Eat My Bad Karma...
My hard-earned experience with Wall Street is that it really doesn't give a rat's patootie about the past (earnings report), but rather pays attention to the forecast for the next quarter and year.
Watch what they hint at and see the reaction in their stock price next week after everyone gets back from Summer vacation and the real traders start to move things en masse.
slashdot: A failed experiment.
and that doesn't inspire confidence either. It probably isn't reaching too far to say that SCO ain't long for this world.
here you go
ahh the beauty of the Internet
and the stock is currently trading at $3.80, 6mo performance is definatly a sell
Their lawyers can also be sanctioned for submitting arguments they knew had no chance at all* of winning. Rule 11, anyone?
*N.B.: Before you get worried about closing the courthouse doors to legitimate complaints, that rule is used even less than it probably should be, and only in cases where the lawyer submits a claim (s)he knows or should have known is either misleading, false, or ridiculously frivolous (fails the laugh test).
Stop learning! Only you can prevent esoterrorism.
As much as I side with IBM here, it does seem a bit ironic to see IBM complaining about a competitor "perpetuating fear, uncertainty and doubt."
This is company that hasn't produced a competitive product in years. And now that everybody see's that there may not be much merit to their IP claims on linux, their license collections will die off too. Their only hope is for a Microsoft to keep funding them to wage this proxy war against linux. Just wait until their are no more good proxies for Microsoft to fund, that's when we'll likely see them jump in the ring flush with a new patent portfolio to swing around.
"There's no set architecture in Linux. All roads lead to madness" -Microsoft
I think that was actually Homer Simpson, but don't recall the episode or why, but the
should echo investor sentiments rather accurately."Me, I invest in beer at least I get something for my money."
A feeling of having made the same mistake before: Deja Foobar
"In response to IBM's discovery requests and the Court's orders, SCO did not [give] (and still has not [given]) any competent evidence that IBM's Linux activities infringe SCO's alleged copyrights (or even that SCO owns valid copyrights)"
Its a fun read. I'll be really suprised if they don't get a summary judgement in their favor.
It really underlines the brilliance of IBMs legal team, because now they can point back to all the shit SCO said, show clearly that they are either unable or unwilling to back it up with fact, and hit them with big ugly damages just for saying it.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
Well, we certainly have found today's Mixed Metaphor champion.
... all that time ago when SCO started this:
1. Did they really think they had something?
2. Was it a hope for IBM et al to buy them out and save a failing Company?
3. Did M$ really engineer all this anyway?
Whatever, but the last point is can a court, on whatever decision is reached now, actually stem the tide against this sort of action by large $$$$/££££ in the bank Companies deliberately trying to destroy a free (and perhaps better system), against an otherwise 'couldn't care less to who uses my code' attitude open source movement in the courts?
IBM has money to oppose. What if they didn't and couldn't fight back for OSS? Who could fight the monopolies then?
The next fight is these silly patents. I think that will be BIG trouble for all free people, let allow coders.
Hey Curtman, did you happen to read this? How's that crow taste?
Your friend,
Ohreally
No no no, it's just pining for the fjords. Just don't ask it for evidence... SCOs stun easily.
Your CPU is not doing anything else, at least do something.
The take is that IBM's request for Summary Judgement that no SCO copyrighted code exist in Linux will be granted.
Novel is invited so as to protect their interest in the Copyrighted material. Most likely Novel is the owner of any copyrighted material not SCO (OldSCO rather ie Caldera)since it was nver transfered in writing, as required.
Help fight continental drift.
who would've thought that The SCO Group, were nothing but a bunch of profiteering lieing bastards driven by satan. ugh.
well, we've know this for a long time,
this isn't exactly what you call _FRESH_ news.
The few institutional investors that got stuck with this turkey are so far underwater that they may as well pray for a miracle, because selling now they'll take a bath -- besides, there aren't any takers.
Lacking <sarcasm> tags,
of the copyrights, the legal presumption is that the copyrights still reside with the original owner: in this case, Novell.
SCO = losers
Any yes I *do* read slashdot. Check my ID.
(though its the only time that might have happened that I would have been grateful for a *lower* number).
The question being...
How many geeks work for SCO?
And how many moderate on Slashdot?
The secret of success is honesty and fair dealing. If you can fake those, you've got it made. (Marx)
(First of all, proper to my observation; the verry instant SCO hinted even a shadow of lowering stock dividends is bad news. The stock will now tank, and whomever wants to buy SCO will do it quickly or if it was a facade by the SCO employees to buy back all their stock then there so.)
(Also, Slashdot needs to mirror these articles. Groklaw can barely even respond on my traceroute. The text for IBM's memorandum follows; part 1 of 4;)
IBM here explains all the reasons why its motion should succeed and why SCO should be sanctioned for failing to disclose information in discovery. "SCO has not only wasted IBM's time and resources over the past year of discovery, by requiring IBM to seek to compel SCO to provide necessary information that SCO apparently was only willing to come forward with in the face of a summary judgment motion, but SCO has also perpetuated fear, uncertainty and doubt about the lawfulness of IBM's activities."
IBM mocks SCO's "surprise" that copyright infringement should be an issue, now claiming, for purposes of this motion anyway, it hasn't raised that issue and is relying instead on contract claims.
IBM then lists numerous times SCO has mentioned copyright infringement. If I might add to their list the following additional instances:
* "'What we found was that the infringements went way beyond just IBM's involvement and that other parties had contributed things improperly... in going through the process, we counted over a million lines of code that we allege are infringed in the Linux kernel today out of a total code base of five million,' added McBride.
"Nevertheless, IBM was the source of most of that allegedly tainted code, said McBride: 'The vast majority of that did, in fact, come from IBM and when we say IBM, the majority of that actually came from IBM's acquisition of Sequent.'"-- Darl McBride, Infoconomy, 2003-09-11
* "We are staring down the barrel of hundreds of thousands of lines of code that enabled Linux to go from a mom-and-pop operating system to a big-time, enterprise-class OS at Fortune 100 companies. It's really interesting to see what happens when people see the code, when they see how blatant the copying is."-- Darl McBride, Wired, 2003-09-11
* "78. However, as is widely reported and as IBM executives knew, or should have known, a significant flaw of Linux is the inability and/or unwillingness of the Linux process manager, Linus Torvalds, to identify the intellectual property origins of contributed source code that comes in from those many different software developers. If source code is code copied from protected UNIX code, there is no way for Linus Torvalds to identify that fact.
"79. As a result, a very significant amount of UNIX protected code and materials are currently found in Linux 2.4.x, Linux 2.5.x and Linux 2.6.x releases in violation of SCO’s contractual rights and copyrights." -- SCO's Second Amended Complaint
* "But the unlicensed use of its Unix shared libraries was just the 'tip of the iceberg as there are so much IP we're dealing with here, ranging from copyright, trade secrets, patents, source code and licensing issues. Because this range of IP-related issues is so broad-based and there is such a wide-range of players involved, we're just making sure we move forward very sure-footedly. We don't want to start running before we can walk. We're trying to take things in the right order,' McBride said."-- Darl McBride, eWeek, 2003-02-26
* "'Today is really the formalization of our going down the path of broadening our case to go beyond just contracts to include copyrights," McBride said. He added, 'Today's announcement really is a new front that we're opening up.'"-- Darl McBride, InternetNews, 2003-07-21
* "'Today's announcement is really a new front that we're opening up' with existing enterprise Linux customers, McBride said. 'It gets you clean, it gets you square with Linux without having to go into the courtroom.'"-- Darl Mc
I am the nightmare of nightmares.
(Slashdot, please *try* to mirror the articles on other websites; SCO especially due to all the traffic they cause. You are at liberty to customize (http://www.gnu.org/software/wget/wget.html) to ignore Robots.txt if you like; please try to help another's bandwith bill! Thanks; part 2 of 4;) Civil No. 2:03CV0294 DAK Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells TABLE OF CONTENTS Page Preliminary Statement 1 Statement of Undisputed Facts 5 Argument 6 I. SCO BEARS THE BURDEN OF DEMONSTRATING THAT THERE ARE GENUINE ISSUES OF MATERIAL FACT THAT WOULD PRECLUDE SUMMARY JUDGMENT ON IBM'S TENTH COUNTERCLAIM 6 II. SCO HAS NOT ADDUCED, AND CANNOT ADDUCE, EVIDENCE SUFFICIENT TO CREATE A GENUINE ISSUE OF MATERIAL FACT 10 A. SCO Fails Properly To Challenge IBM's Statement Of Undisputed Facts 11 B. SCO Fails To Adduce Any Competent Evidence That IBM Has Infringed SCO's Alleged UNIX Copyrights 12 1. SCO's purported evidence should be stricken from the record because it was not disclosed in response to IBM's discovery requests or in response to Judge Wells's discovery orders 12 2. In any event, SCO's purported evidence is inadmissible because it is not based on personal knowledge and is improper opinion testimony 17 3. Even if his testimony were admissible, the allegedly infringing code identified by Mr. Gupta is insufficient to establish copyright infringement 18 C. SCO Fails To Adduce Any Competent Evidence That SCO Is The Rightful Owner Of Valid Copyrights In The UNIX Software 23 III. NEITHER SCO'S RULE 56(f) APPLICATION NOR THE PROCEDURAL POSTURE OF THE CASE PRECLUDES A GRANT OF SUMMARY JUDGMENT 25 A. The Fact That Discovery Is Not Complete Is Alone No Reason To Grant SCO's Rule 56(f) Application 26 B. SCO Has (And Has Had) All Of The Materials It Needs To Show "Substantial Similarity" And Claims Already To Have Analyzed The Materials 27 C. None Of The Additional And Extensive Discovery SCO Seeks Is Necessary Or Even Relevant To IBM's Motion 32 IV. SCO'S OPPOSITION SEEKS MERELY TO CREATE A SMOKESCREEN TO COVER THE INADEQUACIES OF ITS CLAIMS AND FURTHER TO DELAY THE RESOLUTION OF THIS LITIGATION 38 Conclusion 45 TABLE OF AUTHORITIES CASES Adams v. Goodyear Tire & Rubber Co., 184 F.R.D. 369 (D. Kan. 1998) 30 Adler v. Wal-Mart Stores. Inc., 144 F.3d 664 (10th Cir. 1998) 7, 31 American Eagle Ins. Co. v. Thompson, 85 F.3d 327 (8th Cir. 1996) 8 Ashley Creek Phosphate Co. v. Chevron, 129 F. Supp. 2d 1299 (D. Utah 2000) 11 Autoskill Inc. v. Nat'l Educ. Support Sys., Inc., 994 F. 2d 1476 (10th Cir. 1993) 22, 24, 28 Baker v. IBP, Inc., No. 02-4067, 2002 U.S. Dist. LEXIS 23869 (D. Kan. Dec. 5, 2002) 14 Ben Ezra, Weinstein, & Co., Inc. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000) 27 Biocore Med. Techs., Inc. v. Khosrowshahi, No. 98-2031, 1998 U.S. Dist. LEXIS 20512 (D. Kan. Nov. 6, 1998) 14 Bobian v. Csa Czech Airlines, 232 F. Supp. 2d 319 (D.N.J. 2002) 31 Bridge Publ'ns. Inc. v. F.A.C.T. Net. Inc., 183 F.R.D. 254 (D. Colo. 1998) 24 Brightway Adolescent Hosp. v. Health Plan of Nevada, Inc., No. Civ. 2:98CV0729, 2000 WL 33710845 (D. Utah Sept. 20, 2000) 32 Bucklew v. Hawkins, Ash. Baptie & Co., LLP, 329 F.3d 923 (7th Cir. 2003) 22, 34 Calvary Holdings, Inc. v. Chandler, 948 F.2d 59 (1st Cir. 1991) 37 Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132 (2d Cir. 1998) 34 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 7 Committee For The First Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992) 26, 27 Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) 24 Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) 21 Country Kids N City Slicks, Inc. v. Sheen, 77 F.3d 1280 (10th Cir. 1996) 10, 28 Cudjoe v. Independent Sch. Dist. No. 12, 297 F.3d 1058 (10th Cir. 2002) 7 Cuenca v. Univ. of Kan., No. 98-4180, 2001 U.S. Dist. LEXIS 9942 (D. Kan. May 14,
I am the nightmare of nightmares.
Is it legal to look at a guy/gals resume, see that they worked for SCO after the 'suits started and exclude them from consideration for hire for that reason alone?
OT I know, but just wondering.
Wait a few hours before posting this? Then maybe post the actual numbers of the earnings report. Instead of having in a few hours another /. story about SCO's quarterly losses.
Just an idea!
Please do not rely on a litigant's motion papers to prove a point. These are documents made to persuade a judge and as such are nearly advertisements. Wishful thinking aside, until the judge GRANTS IBM's motion nothing is settled. I am sure SCO's motions look pretty too - - it is not as if both sides lack for decent lawyers. In most cases anyway a judge will let the jury decide. Summary judgements are rarely granted unless discovery has proven a FACTUAL point which does not need to litigated. Defendents always file these motions which are sometimes useful in limiting the scope of the lawsuit but rarely result in a complete win.
To the press SCO offered litter
While leaving the stockholders bitter
If Darl hasn't cooked
SCO's books
Their position must be in the shitter.
(my sincere apologies on the last post, due its form error. heil to slashdot's "code" form post)
(Slashdot, please *try* to mirror the articles on other websites; SCO especially due to all the traffic they cause. You are at liberty to customize (http://www.gnu.org/software/wget/wget.html) to ignore Robots.txt if you like; please try to help another's bandwith bill! Thanks; part 2 of 4;)
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
TABLE OF CONTENTS
Page
Preliminary Statement 1
Statement of Undisputed Facts 5
Argument 6
I. SCO BEARS THE BURDEN OF DEMONSTRATING THAT THERE ARE GENUINE ISSUES OF MATERIAL FACT THAT WOULD PRECLUDE SUMMARY JUDGMENT ON IBM'S TENTH COUNTERCLAIM 6
II. SCO HAS NOT ADDUCED, AND CANNOT ADDUCE, EVIDENCE SUFFICIENT TO CREATE A GENUINE ISSUE OF MATERIAL FACT 10
A. SCO Fails Properly To Challenge IBM's Statement Of Undisputed Facts 11
B. SCO Fails To Adduce Any Competent Evidence That IBM Has Infringed SCO's Alleged UNIX Copyrights 12
1. SCO's purported evidence should be stricken from the record because it was not disclosed in response to IBM's discovery requests or in response to Judge Wells's discovery orders 12
2. In any event, SCO's purported evidence is inadmissible because it is not based on personal knowledge and is improper opinion testimony 17
3. Even if his testimony were admissible, the allegedly infringing code identified by Mr. Gupta is insufficient to establish copyright infringement 18
C. SCO Fails To Adduce Any Competent Evidence That SCO Is The Rightful Owner Of Valid Copyrights In The UNIX Software 23
III. NEITHER SCO'S RULE 56(f) APPLICATION NOR THE PROCEDURAL POSTURE OF THE CASE PRECLUDES A GRANT OF SUMMARY JUDGMENT 25
A. The Fact That Discovery Is Not Complete Is Alone No Reason To Grant SCO's Rule 56(f) Application 26
B. SCO Has (And Has Had) All Of The Materials It Needs To Show "Substantial Similarity" And Claims Already To Have Analyzed The Materials 27
C. None Of The Additional And Extensive Discovery SCO Seeks Is Necessary Or Even Relevant To IBM's Motion 32
IV. SCO'S OPPOSITION SEEKS MERELY TO CREATE A SMOKESCREEN TO COVER THE INADEQUACIES OF ITS CLAIMS AND FURTHER TO DELAY THE RESOLUTION OF THIS LITIGATION 38
Conclusion 45
TABLE OF AUTHORITIES
CASES
Adams v. Goodyear Tire & Rubber Co.,
184 F.R.D. 369 (D. Kan. 1998) 30
Adler v. Wal-Mart Stores. Inc.,
144 F.3d 664 (10th Cir. 1998) 7, 31
American Eagle Ins. Co. v. Thompson,
85 F.3d 327 (8th Cir. 1996) 8
Ashley Creek Phosphate Co. v. Chevron,
129 F. Supp. 2d 1299 (D. Utah 2000) 11
Autoskill Inc. v. Nat'l Educ. Support Sys., Inc.,
994 F. 2d 1476 (10th Cir. 1993) 22, 24, 28
Baker v. IBP, Inc.,
No. 02-4067, 2002 U.S. Dist. LEXIS 23869 (D. Kan. Dec. 5, 2002) 14
Ben Ezra, Weinstein, & Co., Inc. v. America Online Inc.,
206 F.3d 980 (10th Cir. 2000) 27
Biocore Med. Techs., Inc. v. Khosrowshahi,
No. 98-2031, 1998 U.S. Dist. LEXIS 20512 (D. Kan. Nov. 6, 1998) 14
Bobian v. Csa Czech Airlines,
232 F. Supp. 2d 319 (D.N.J. 2002) 31
Bridge Publ'ns. Inc. v. F.A.C.T. Net. Inc.,
183 F.R.D. 254 (D. Colo. 1998) 24
Brightway Adolescent Hosp. v. Health Plan of Nevada, Inc.,
No. Civ. 2:98CV0729, 2000 WL 33710845 (D. Utah Sept. 20, 2000) 32
Bucklew v. Hawkins, Ash. Baptie & Co., LLP,
329 F.3d 923 (7th Cir. 2003) 22, 34
Calvary Holdings, Inc. v. Chandler,
948 F.2d 59 (1st Cir. 1991) 37
Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc.,
150 F.3d 132 (2d Cir. 1998) 34
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) 7
Committee For The First Amendment v. Campbell,
962 F.2d 1517 (10th Cir. 1992) 26, 27
Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989) 24
Computer Assoc. Int'l, Inc. v. Altai, Inc.,
982 F.2d 693 (2d Cir. 1992) 21
Country Kids N City S
I am the nightmare of nightmares.
I don't understand what you mean to imply when you ask whether Slashdot will give "an objective opinion" of the SCO case.
/.
Slashdot is its users, who happen to give their opinions. Your accusation is like like Bush saying "I wonder when the New Yorkers will be more objective about my policies". Bush knows why he drives people up the wall (anti-abortion, anti-gay, slavery... ooops, or did he mention something about that?).
Likewise, the manner by which SCO is handling this, really riles people, and with due reason. Furthermore, the evidence has been stacking up so rapidly against SCO, that one could hardly be accused of being unreasonable for making the kind of statements you find here on
"Lets lie, cheat, and steal, because at the end of the day the worst thing that happens is we get fired and retire rich."
thats just plain evil.
Is the juice worth the sqeeze?
(Slashdot, please *try* to mirror the articles on other websites; SCO especially due to all the traffic they cause. You are at liberty to customize (http://www.gnu.org/software/wget/wget.html) to ignore Robots.txt if you like; please try to help another's bandwith bill! Thanks; part 3 of 4;) In addition to Rule 37(b)(2), therefore, the Gupta Declaration should also be excluded from consideration on IBM's motion for summary judgment under Rule 37(c)(1). See Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir. 1994) (affirming exclusion of testimony at trial because defendant failed adequately to respond to interrogatories); Stevens v. Deluxe Fin. Servs., Inc., 199 F. Supp. 2d 1128, 1144 n.44 (D. Kan. 2002) (excluding document from consideration on summary judgment motion because it was not provided in response to discovery requests); Go Med. Indus. Pty, Ltd. v. Inmed Corp., 300 F. Supp. 2d 1297, 1308-10 (N.D. Ga. 2003) (excluding documents and testimony from consideration on summary judgment motion because they were not disclosed in response to discovery requests). 2. In any event, SCO's purported evidence is inadmissible because it is not based on personal knowledge and is improper opinion testimony. As is described in more detail in IBM's accompanying motion to strike, Mr. Gupta's testimony should further be stricken from the record because it is not based on personal knowledge and SCO has made no attempt to qualify Mr. Gupta as an expert witness. Accordingly, the testimony is not competent evidence and cannot be relied upon to create a genuine issue of material fact.17 3. Even if his testimony were admissible, the allegedly infringing code identified by Mr. Gupta is insufficient to establish copyright infringement. Even if the Gupta Declaration was timely disclosed (which it was not) and even if it was competent evidence (which it is not), it remains insufficient as a matter of law to show that a genuine issue of material fact exists as to IBM's copying of protectable elements of SCO's allegedly copyrighted materials. See Mitel, 124 F.3d at 1370 ("In order to establish copyright infringement, plaintiff must prove ... that the defendant copied protectable elements of the copyrighted work.") (emphasis added).
The Tenth Circuit has adopted the abstraction-comparison-filtration test, to determine whether a computer program, such as the Linux kernel, is substantially similar to (and therefore may infringe the copyright in) another computer program, such as SCO's allegedly copyrighted UNIX software. See Gates Rubber Co. v. Bando Chem. Indus. Ltd., 9 F.3d 823, 834 (10th Cir. 1993). As set forth in Gates Rubber, the test requires that a court (1) "dissect the program according to its varying levels of generality", (2) "filter out those elements of the program which are unprotectable" at each level of abstraction; and (3) then "compare the remaining protectable elements with the allegedly infringing program". Id. According to the Tenth Circuit, "[f]iltration should eliminate from the comparison the unprotectable elements of ideas, processes, facts, public domain information, merger material, scenes a faire material, and other unprotectable elements suggested by the particular facts of the program under examination." Id. at 834.
As discussed in IBM's accompanying motion to strike, Mr. Gupta's analysis wholly disregards the abstraction-filtration-comparison test and is therefore fatally flawed.18 Specifically, Mr. Gupta failed to filter the unprotectable elements of the allegedly copyrighted work and to apply the appropriate standard for determining, at the comparison stage, whether one body of code is substantially similar to another body of code.
In his declaration, Mr. Gupta opines that six "routines" or "groupings of code" in Linux are substantially similar to the allegedly copyrighted works: (1) "the Read-Copy-Update [(RCU)] routine"; (2) "the user level synchronizations (ULS) routines"; (3) "IPC code"; (4) certain "header and interfaces"; (5) "System V init code"; and (6) "Executable and Link
I am the nightmare of nightmares.
... changes the wind? The courts?
I would put a few bucks into sco if they would change thier hold music for the conference calls. (at 5:10pm ET) they say that call would be 10 minutes late.. This mariachi is killing me.
Since when did SCO start giving out dividends? Microsoft only recently started giving them out, and they make billions of dollars per month. I checked the stock pages, and it lists SCOX as not having any type of dividend at all.
What is this guy talking about?
see, this is only one high profile case of infringment. regaurdless if it is false or not, it is hell to go through, for EITHER company.
note: microsoft is patenting damn near everything that they can, from the User Interface, how software is behaving, hell even shit that they haven't created yet.
imagine when somebody tries to continue to reverse engineer their stuff.. only the world's most pollitically powerful comany's wrath would be hell
but imagine what their dogs for lawyers would and could do to you. this is going to be a long, drawn out hell.. mark my words
It was supposed to start at 5pm EST - it's now 5:16 and we're still waiting.
Actually putting out a quality product.
You are not the customer.
results
If you mosey on over to this Groklaw article, you'll see that Judge Kimball appears to be fixin' to have a three-way showdown--IBM & Novell vs. SCO.
If you've read the legal briefs, you should know by now that both Novell & IBM have hammered on SCO's counsel for asserting some rather convenient but inconsistant things before the judge. In other words, they assert whatever is most beneficial to their case--leaving SCO with a few more arguements, but no consistant case. While they might be able to make that slide a bit better when they're talking as two separate cases, saying different things about the two different cases while discussing them in front of the same judge can't help them any--they'll have pick a side of some of those fences they're sitting on and stick with it.
Problem is, IBM & Novell have them trapped in a narrow pass, effectively, due to some good lawyering on both of their sides. They're going to have to face the music one way or another--if they take one way out of that pass they're in, IBM will get them, whereas Novell is coming down the other side. In other words, SCO is being attacked on two fronts with no retreat, and IBM is now a bit pissed off with SCO's lawyers after the last few tricks (such as citing a Westlaw headnote without attribution, using a priviledge IBM document as an exhibit in clear violation of one of the discovery agreements with IBM, and a few other things I can't remember right now...). Marbux and AllParadox on Groklaw posted on SCO's malfeasance better than I can, and both of those two are lawyers, though they still put up a few disclaimers about not taking what they say as legal advice.
Anyhow, unless this is a mistake by the court in having them all meet up at the same in front of the same judge (possible, but doubtful), you can expect SCO to be routed--their lawyers seem harried, disorganized and ready to have their asses handed to them just as soon as IBM & Novell are done with them.
Mark your calendars, folks--if this is what it looks like, SCO is going to have one hell of a time getting out of this with anything but a ruling which further weakens them. Even if SCO has an ace up their sleeves, I'm not sure they can be holding any better than aces & eights--the dead man's hand.
SCO is . . .never mind. You get the idea.
You are not the customer.
Maybe they posted it ahead of time knowing someone would post the results in the comments, like this: http://biz.yahoo.com/prnews/040831/latu104_1.html.
Summary: Revenue is $11,025,000 which is way down from 3Q03 revenues of $20,055,000. The SCOsource revenues are $667,000 vs. $7,280,000 in 3Q03. But, the SCOsource revenue was only $11,000 in 2Q04.
Strangely enough, the stock is up 6 cents in after hours trading.
I keep having these dreams of a one hour special dedicated to the death of SCO.
Ten bucks says that they have one for Enron!
It's fun... you can get the real download from the yahoo link in the article.
~Idarubicin
Oh well, if anyone here still needs a gmail account, I've got one here for a limited time only.
Mathematics is made of 50 percent formulas, 50 percent proofs, and 50 percent imagination.
There was a small company named SCO,
Whose chief did kvetch and crow,
"My code they have stolen,"
"I've got proof in my colon!"
But such proof he never would show.
Or is the nature of these things such that it is basically meaningless to post such a timetable?
-HJ
Lameness filter go away, come again another day.
DNA just wants to be free...
>That is Dr. Kernighan as in "Kernighan and Ritchie"? That is IBM's expert?
Yes.
This lady (missed her name) from client/server magazine is busting Sco's chops. Anyone catch her name?
15 million in 5 quarters? At least someone is making money off of SCO.
Shhhhhh! no one must know I'm Darl Mc... What, no, nothing!
Alright, here are some brief summaries of conversations during the conference call. (I have too much free time but it's interesting to witness a train wreck).
Caller asks SCO what they can do to protect their shareholders from what may be bad legal advice.
Response is SCO obtained the best firm available for the best legal advice available.
Caller asks would you seek a second opinion from a new firm like you would seek a second opinion from a medical doctor?
Response is anyone with these questions likely has not read all material in front of the courts and they would be unable to generate a conclusion because the paperwork is confidential.
Caller asks what would it take to buy SCO with the poison pill?
The board would need to set a fair price.
Caller asks how many people are employed by SCO.
At the end of the quarter, SCO has 230 people.
Caller asks since beginning on this legal crusade, how much has been paid for legal representation?
Just over $15 million for all law firms for the prior 5 quarters.
SCO currently has $43M in cash. Plans on paying $31M in fees - not sure if this is some baystar thing or legal fee.
Can you summarize the responses from the court that have been positive?
March 6th, Judge said SCO has shown good faith in its discovery process. Ordered IBM to deliver executives emails.
April 19th, SCO received good information from IBM and has been working through that.
Despite judge orders, IBM has not completely fulfilled the order to deliver the information request on March 6th.
Novell case, motion filed to dismiss, motion was denied. A new motion to dismiss was issued and SCO looking forward to dealing with that.
Autozone case, case was stayed but you get 90 days of discovery. SCO is currently going through that process.
Character case that IBM is trying to do of SCO's legacy AT&T contracts is misguided.
Additional hearing will be held on September 14th and 15th.
Caller asks is SCO replacing cash payments to lawyers with sliding scale contingency payments?
Yes. In a certain sense, the long term obligation depends on judgment and settlement amounts.
While this just a motion, IBM seems confident and is calling it like it sees it. Most of /. would agree.
Well, there's spam egg sausage and spam, that's not got much spam in it.
You God Damn right. If you haven't bailed out by now, you're screwed. Take it like a man with a little dignity.
Dress in your best, and order a brandy.
Yes, but they're a LINUX company now! You hear that? LINUX!
It cracks me up that all the "Pump and Dump" McBride rants to the media for nigh on 2 years are now evidence in the latest IBM filing.
Once the dust settles, i expect a SEC investigation into the conduct of the ambulance-chasing SCO executives.
Then again, we've been waiting 4 years for Enron to settle, admittedly under the Cheney vice-presidency. I guess i won't hold my breath for the SCO evisceration just yet.
Who the heck pumped $678,000 into this effectively fraudulent scheme of theirs?....
Hacker Public Radio is our Friend
LRC, the best-read libertarian site on the web
SCO did. They didn't want to take the chance that they might sue themselves.
> Now SCO is arguing that IBM is in a separate
> category from end users. It forgot. IBM is also an
> end user, so all SCO's threats against end users
> apply to IBM too.
Suffer in your jocks!
A recording of the conference call is available here:
http://www.users.cloud9.net/~terrapn/
So, they have to pull their Linux distro, which they've probably already done by now. No biggy to them (though they'd have to start negotiating royalties to be able to support their existing customers)
But, consider this - it's not just IBM's copyrighted works they lose the rights to. Based on that precedent, they could soon be hit with a massive class action lawsuit by thousands of people who have written software under the GPL, demanding that they stop distributing it with UnixWare, as they have no license (and possibly pay damages for copyright violation, if they have any money left by then). Imagine - a commercial UNIX, where if you want any GPL'ed software, you'll have to install it from source yourself, and track and deploy your own updates. Their UNIX would go from a more or less enterprise class OS, to something not quite as useful as DOS overnight.
What is the robbing of a bank, compared to the founding of a bank? -- Bertolt Brecht
That is probably some or all of the EV1 money. The "Headsurfer" was wined, dined, and cozened by both MS and SCO. The short summary of what happened is that MS gave EV1 a sweetheart deal on Windows server licenses for their hosting farm if they would replace a large swath of their Linux boxes with Windows boxes. MS also used it in their "Get the Facts" campaign. Upon examination, the only thing it really proved is that they have some incompetant Linux admins. The Headsurfer also was seen at a Vegas convention partying it up with Darl. Their licensing of their remaining Linux boxes was announced days later.
EV1 immediately lost a large number of customers. All of their competitors noticed a spike in business from the defectors. They have publically announced regret that they dealt with SCO.
For SCO to now claim that IBM's counterclaim for noninfringement is introducing alien claims into what they now wish to describe as a case about contracts is difficult to sustain, because the Internet exists.
Hooray for the the Crazy Yenta Gossip Line!
Heh. And that yields an even better image with American football.
For those who want to listen to the conference call recording, here it is...
RealPlayer:d emand/040831cald.ra&proto=rtsp
http://play.rbn.com/?url=shareholder/shareholder/
Windows Media Player:e holder/wmdemand/040831cald.asf&proto=mms?mswmext=. asx
http://play.rbn.com/play.asx?url=shareholder/shar
As the old adage goes:"You can't cheat an honest man". Anyone "SCO investor" that wants someone to blame should go look in the mirror.
Engineering is the art of compromise.
They're not trying to build a sustainable business so they don't need development staff and managers etc either.
Engineering is the art of compromise.
>>Gupta quoted tiny bits out of context and rearranged them to deceptively make linux and sysv look similar, when the sections quoted aren't similar at all.
Would that be falsifying evidence? Isn't that a very serious crime?
"SCO's present assertion...that SCO has not had sufficient time to perform the requisite analyses of Linux and the UNIX code it claims to have copyrighted, and that such analyses could take 25,000 man-years, obviously rings hollow. It appears that SCO's litigation strategy now is simply to seek delay for delay's sake. SCO, by its own admission, has already performed the analyses it needed, but has not come forward with any evidence that would a create genuine issue of material fact as to copyright infringement in this case. In this situation, summary judgment is appropriate; SCO should not be given additional time to perform analyses it admits it has already performed and have apparently (despite SCO's public claims) turned up nothing" (emphasis added).
OTOH maybe the judge should grant a stay until SCO has completed the 25,000 man-years of analyses it says it needs. A staff of 100 could finish the job in 250 years; surely BayStar can keep pouring money in for that long?
This is not my sandwich.
It seems SCO has a new theory on how it will profit through the use of court cases rather then by shipping product. After seeing how bad a job their law firm did for them, SCO will be seeking to profit from a Legal Malpractice Claim... ;)
http://www.hawknest.com/
It used to amuse me, now it annoys me.
What a great analogy. That's exactly how I feel about watching people fall out of trees!
.sig: Open Source, Open Mind
The only reason M$ started paying dividends was to quell a stockholders revolt. The stockholders kept getting the financial statements showing all that cash on hand, and said cough it up. There was some work done on getting votes to change the board to get it. Gates caved to keep the existing board on his leash. Before that, the only way to make money owning M$ was for the stock price to go up and then sell.
Originaly MS didn't pay dividends so they could put the money in R&D. Then the money grew out of control.
Professional Politicians are not the solution, they ARE the problem.
And also they sent the message that if you have a patent and want a quick buck, go sue EV1. They'll settle easily for lots of money. :)
Alternatively, they could put the UNIX source under the GPL and assign copyright to FSF. Many other companies already have the right to ship products based on the UNIX source code, so slapping a GPL copyright on UNIX won't affect them. But for the others, Linux is probably a (technically) better place to start than SVR4. So GPLing UNIX (rather than puting it into the public domain) would tend to discourage the emergence of new SVR4 derivitives. That's probably a good thing.
Also note that there have been no insider trades since this past April, when the stock started it's nosedive to it's current bargain-basement levels. Here's the proof. Prior to April 7, Thomas Raimondi sold off $1,196,507 of stock. Another insider, Reginald Charles Broughton, during the period between 20 Jun 03 and 17 Sep 03, while the stock was on the rise and nearing the top of the bubble, sold off $3,425,458 worth of stock, most of it trading at in excess of $12/share and even as high as $20/share. Pump and dump? You bet ya. I can't wait to see what happens when the SEC goes public with their investigation.
I've no idea why you think license purhaces don't count, since it's a pretty standard money laundering technique. But we've also learned that Microsoft initiated the Baystar inventment and while they claimed that there was no financial involvement from Microsoft, a white paper on Baystar's own website lists Micosoft and Vulcan ventures as two of their major investors. It has also come out that two of the other "licensees" (SUN & EV1) were influenced by Microsoft in their descision to purchase licenses (CA, the other major licensee, was given the license as part of a settlement agreement).
That pretty much covers all of SCO's funding in this venture. If you run down the standard checklist:
- Microsoft has the means to fund SCO's FUD
- Microsoft has the motive to fund SCO's FUD
- Microsoft has the oportunity to fund SCO's FUD
- To the extent that there is any evidence at all about the source of SCO's funding, in each case the ultimate source appears to be Microsoft.
That's why people seem to state it as an accepted fact; while it may not be proven it would certainly be the smart way to bet.-- MarkusQ
*WHEN* WILL IT BE OVER???
I just modded your previous posts Overrated, jackass.
"I was following orders"... or something like that I can't remember at the moment.
IANAL but write like a drunk one.
Comment removed based on user account deletion
SCO DOESNT have any IP that is worth while... otherwise they woudl have a case by now! ;)
The whole SCO IP thing is a Brookland Bridge sale...
Have a nice day!
[SCO]: We have literally DOZENS of MIT experts deep mining code, and finding copied code, however, we cannot reveal it until the trial.
[IBM]: Now children, THIS is what you call expert evidence.
[SCO]: Ohhhh
Have a nice day!
...the IBM style of FUD, which is this menacing near-omnipotent saying "don't mess with us, or we'll FUD you out of existance".
...then there's the SCO kind of FUD, which is more like supersizing themselves up like a bullfrog, going "we're so very important, listen to our FUD about how important we are".
The first is more akin to a threat, the second more like a bluff. Think of it as a poker game, IBM is the guy upping because he's going to call, SCO is the guy upping because he's bluffing.
SCO seems to have missed the point that said that FUD works best when you're not bluffing.
Kjella
Live today, because you never know what tomorrow brings
You have too many syllables in line 2 and 5, and perhaps 3 depending on how you pronounce SCO :-)
The other limericks aren't very correct either.
(ducks!)
xkcd is not in the sudoers file. This incident will be reported.
Putting UNIX in the public domain is not possible.... and for the same reason LINUX cannot be put into the public domain.... COPYRIGHTS.
Whether or not Novel owns the entire copyrights, or not,m there are postions of the code which IS copyrighted to other companies (CA, Sun, HP, IBM, etc). Putting UNIX into public domain would require permission from EVERY copyright holder/distributer.
I believe, both Novell, and (ironically) Caldera DID try this in the past, but could not for the above reason. (and was why only Ancient UNIX was released into the public domain)
Have a nice day!
OK, Slashdotters have agreed that IBM will not buy
SCO.
Fine but what about Sun? They can get it for
peanuts and immediately start negotiations with
their ancestral enemy: they want access to IBM
mainframes; they may soon need IBM's processors
since they cannot afford any longer to develop
their Sparc; there are differences of opinion on
Java. Throw in the SCO carcass and you have the
right mix.
Hello, Scott: pick up the phone and fix a meeting
wilt Ralph Yarro. Do you really need Darl to serve
up the coffee?
it woudl be great if that happend, but I would not hold my breath.....
Have a nice day!
If you read this Groklaw article, you'll see that the court made a mistake in their listings and vacated that notice of hearing.
:]
So they're not all going to meet at the same time in the same place. Pity that, it would've made quite a good show
Even fighting them one at a time, though, SCO is up the river unless they've got a few aces up their sleeves...