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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."
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.
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.
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."
"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.
>If, on the other hand, he plans to grant the Novell dismissal on the grounds that the copyrights were never transferred, it would allow him to grant IBM's PSJ on the same grounds.
The Novell suit is a "slander of title". Given that the copyrights are in dispute, it will be quite easy for the judge to grant Novell's dismissal. The Judge would not have to go as far as to say that Novell owns the copyrights, only that there is a genuine dispute over them.
IBM's PSJ, on the other hand, is more about SCO's claims in he media that IBM is stealing UNIX to put into Linux. It's not about the direct claims SCO has made in court.
In order for the two judgements both be granted for the same grounds, the Judge would have to one-up Novell's claim and say that Novell owns the copyrights.
That would be very interesting indeed, and would pretty much wrap it up for SCO. I'm hoping for that, but IMHO it's likely that the Judge will grant both requests, but on different grounds. Novell will be granted because the wrong kind of suit was filed. IBM will be granted on the Lanham act. SCO will continue to persue their other claims and spin the losses as though they had won something.
IANAL.
That doesn't mean that SCO is not in huge trouble. They have recently laid off a bunch of fairly key middle managers in the profitable SCO UNIX branch. The engineers are not yet on the chopping block, but the end is near when you let go the marketing and product management people on products. They're going to decline from there.
I also know a bunch of corporate and intellecutal property attorneys in real life, one of whom is my father. They're all wondering what the heck SCO has been thinking with the filings over the last year. Both factually and legally very weak filings.
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.
It wouldn't be illegal, but I don't think it would be smart to automatically exclude all former SCO employees from consideration. My bet is that most of their employees are just regular joes working a job to pay the bills. I'm betting only a small portion of them are actively involved in lawsuit planning, and an even smaller portion are actually making anything off the lawsuits. That being said, if Darl McBride's resume crossed my desk, it would go straight in the trash after being defaced in various ways. Many SCO insiders have a history of this kind of crap well before they came to SCO (see Darl McBride vs. Ikon).
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.
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
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