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."

Comments

No Legs? Full of Holes?

[ackthpt]

Watch those methaphors, eh!

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!"

Re:No Legs? Full of Holes?

[Mycroft999]

I haven't been following this thing religiously, but am I to understand that SCO still hasn't ponied up any evidence in the way of source code to show where code was copied? If so this would be a rather long time the judge let the case go on without SCO replying to IBM's discovery attempts.

Re:No Legs? Full of Holes?

[Ohreally_factor]

Well the deal here is that IBM has SCO between a rock and a hard place. If SCO tries to show code at this point, IBM asks why haven't they shown the code earlier, after numerous court ordered discovery attempts? If they show code now, they will be demonstrating that they haven't complied with the court's orders.

IBM is also foreclosing on their defense of saying that the case isn't about copyright, and therefore IBM shouldn't be allowed to bring this "alien" motion. IBM is doing this by pointing out how SCO has done nothing but characterize their complaint as copyright infringement outside of the courtroom.

IBM has efffectively and devastatingly weakened the overall case while utterly destroying SCO's SCOsource program. And they've made it look easy.

Re:No Legs? Full of Holes?

[Jaywalk]

but am I to understand that SCO still hasn't ponied up any evidence in the way of source code to show where code was copied?

They tried, but it got shredded by IBM's legal team. Basically, they had one of their own employees say that he thought this and that chunk of code was copied, but he bungled his testimony. He should have first removed the "non-copyrightable elements" -- like everything in the public domain or that's part of an open standard. But he cited both public domain and open standard code as if it was all proprietary.

He also got caught out in something in activity that borders on perjury. Consider this quote:

As Dr. Kernighan [IBM's expert] notes, "Mr. Gupta's conclusions of similarity depend on his selecting isolated lines of code from disparate places and putting them together as if contiguous blocks of code were involved (which they are not) and important differences did not exist (which they do)."

I'm not sure that this stuff hits the non-technical eye as hard as it does an old geek like myself, but to me the critcism is damning. If the judge looks at the exhibits and comes to the same conclusion IBM did, SCO is in serious trouble.

Re:No Legs? Full of Holes?

[On Lawn]

Okay, I'm just going to ask. That is Dr. Kernighan as in "Kernighan and Ritchie"? That is IBM's expert?

To me it is not a very smart investor who bet against IBM in this matter.

Re:No Legs? Full of Holes?

[black mariah]

SCO's situation is worse than that when it comes to the GPL. Either they say the GPL is invalid, at which point they lose any and all right to distribute the code in the Linux kernel (and other Linux software), or the GPL is valid and they have knowingly and willingly contributed their code to a GPL project (by releasing SCOSource and Caldera... and whatever other Linux-based projects they have). I don't even have an opinion on this case and I can see SCO is fucked.

Re:No Legs? Full of Holes?

[Flower]

It gets better. The other expert IBM has is Prof. Randall Davis. He goes over the methodology SCO used to determine copied code and tears apart SCO's claims that they need more code from IBM. When I read it I felt like I was witnessing a clusterbomb being dropped on SCO's entire case. It really is a beautiful piece of work and by the end leaves no doubt that the man is worth every penny of the $550/hour fee he charged IBM.

Re:No Legs? Full of Holes?

[ak_hepcat]

Ah, nothing like the /. editors to whittle away at a story until it's nothing more than a couple of uninformative soundbites.

I'd actually sent in a quick summary of the PSJ memo and some other tidbits.

Ah well.. I guess this means I'm famous for mexing my mitafores. What's a mitafor? 'bout tree-fitty.

Re:No Legs? Full of Holes?

[mikelmoore]

And considering that he was the expert in the case that established the abstraction, filtration and comparison that this court will use to determine copyright infringement, he testimony is a nuke to SCO's 'case'.

Re:No Legs? Full of Holes?

[Flower]

Yep. You got that one head on. SCO really can't come up with an expert that will ever come close to trumping Prof. Davis. Who really wants to go rep for rep against this guy defending SCO's inane claims? It would be professional suicide. IBM definitely showed SCO what it means to submit expert testimony. MIT rocket scientists my ass.

I wonder if the Nazgul who sent that declaration to the court started muttering "now I am become Shiva..."

Re:No Legs? Full of Holes?

[pjrc]

If they show code now, they will be demonstrating that they haven't complied with the court's orders.

If you read the (very long) IBM memo, SCO tried this (Sandeep Gupta deposition), and IBM said that and much, much more. Here's basically what IBM said:

• SCO's memo was not in format required by law
• Gupta's evidence was not filed when required (2 court orders) and now it can't be introduced
• Evidence is not from Gupta's personal knowledge
• Gupta is not an expert witness
• Gupta did not follow required legal required procedure for comparing code
• Similarities are only unprotected expression, not copyrightable.
• Some code claimed to be similar is not at all alike, even to a untrained viewer (apparantly exhibits attached).
• 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.
• Some of the compared code is in the public domain
• Much is "scenes a faire" (dictated by compatibility standards and thus not protected by copyright)
• Some code Gupta compared is not even part of linux kernel
• Gupta only testifies to 300 lines of code, which is not a substantial part of the millions of lines in linux or unix sysv.

If even some of these are true, this last-minute "evidence" doesn't seem like it'll do SCO any good. Then again, we'll know for sure in a couple weeks.

Re:No Legs? Full of Holes?

[Anonymous Coward]

I'm not sure that this stuff hits the non-technical eye as hard as it does an old geek like myself

You can compare that to a literature copyright infringement: Stephen King's lawyer can cut out the words from "The adventures of Tom Sawyer", mix them up to resemble a page from "The Shining" and accuse Mark Twain of plagiarisation.

Wait a minute...

Re:No Legs? Full of Holes?

[Angst Badger]

As Dr. Kernighan [IBM's expert] notes [...]

There are two kinds of fucked. In the first, lesser kind of fucked, Brian Kernighan is testifying against you. In the second, more serious kind of fucked, he is testifying against you as Dr. Kernighan, a title which he normally doesn't even use on research papers.

It's been a long time since I read the Book of Revelation, but I'm pretty sure the Four Horsemen of the Apocalypse appear right after the Defense of the Dissertations.

Re:No Legs? Full of Holes?

[UnknowingFool]

They tried, but it got shredded by IBM's legal team.

It's worse than that. It would be shredded IF SCO can get it admitted into evidence. They made so many mistaked with the Gupta Declaration.
(1) They didn't propery certify Gupta as an expert by establishing his credentials.
(2) They didn't give IBM the Declaration until after IBM asked for Summary Judgement (read: evidence must be presented in a timely manner)
(3) Gupta didn't use the abstraction-comparison-filtration test that the Tenth Circuit has adopted for matters of copyright cases in software. The filtration part of this test is where you have to remove code that cannot be copyrighted (public domain, standards, ideas, etc).
(4) Even if you ignore all that, the code he says is similiar isn't remotely close to being similiar. It's so obvious a nonprogrammer could tell.

There are six pieces that Gupta mentions: (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 Linking Format (ELF) code"

IBM points out that for the first two:

To the extent he identifies any similarity at all, Mr. Gupta's analysis is focused almost entirely on unprotectable ideas and concepts. (See Kernighan Decl. 20-21.) Indeed, Mr. Gupta himself claims to identify similar "routines" and "method[s]" that "perform the same ... acts". (Gupta Decl. 3, 5, 7, 10, 11 (describing RCU) and 30, 31, 32, 34, 36 (describing ULS).). Such elements are plainly unprotectable and cannot serve as the basis for a determination of "substantial similarity"

In a nutshell, Gupta says these two pieces of code infringe because they perform the same function to some code in SCO's Unix. IBM validly argues that the function of code is not copyrightable.

For the IPC code (3), SCO is trying to fool the court by making code look similiar by selectively deleting code in between lines of other code. This was noted by Kernighan above.

The "header and interfaces" and "System V init code" aren't even in Linux and are irrelevant according to IBM.

ELF is a specification and a standard and thus falls under the filtration test as not copyrightable.

Re:No Legs? Full of Holes?

[metlin]

Damn! For a moment there, I read that as Randall Waterhouse :)

Re:No Legs? Full of Holes?

[DarkAce911]

Yes, it is that Kernighan.

Darkace911

Re:No Legs? Full of Holes?

[dbIII]

but he cited both public domain and open standard code as if it was all proprietary.

The whole basis of this ugly case from day one was due to SCO taking something in the public domain and trying to make it proprietary - fencing off the common land. The GPL is as public domain as any common land - you can use it but you can't put a fence across it to stop others using it.

Re:No Legs? Full of Holes?

[Anonymous Coward]

Not at all. The GPL is more like a National or State Park open to all visitors, maintained by volunteer park rangers and environmental groups. It is emphatically NOT public domain.

Re:No Legs? Full of Holes?

[UnknowingFool]

Let's see:
In one corner, SCO has Sontag and Gupta, two of their employees. One of them is unknown in his credentials.

In the other corner, IBM has Dr. Brian Kernighan (Princeton) who with Dennis Ritchie wrote the first C programming book. Kernighan has also written seminal books in many other programming guides and languages.

IBM also has Dr. Randall Davis (MIT) whose expert testimony was used in not one but two of the benchmarks that are cited as case law in all software copyright infringement cases (CAI v. Altai and Gates Rubber v. Bando).

I wouldn't say it looks bad for SCO but I would bet a blind money could hammer away at a typewriter and finish writing Hamlet before I would bet SCO would win.

Re:No Legs? Full of Holes?

[dbIII]

Not at all. The GPL is more like a National or State Park open to all visitors, maintained by volunteer park rangers and environmental groups. It is emphatically NOT public domain.

It is public domain with rules - just like the analogy you have provided.

Let's not go with definitions that only apply in small circles (the RMS approach) and go with the dictionary.

Re:No Legs? Full of Holes?

[Eric119]

Uh, "the RMS approach" is just the legal definition of public domain. Public domain means no copyright applies to a work. See the definition.

Re:No Legs? Full of Holes?

[dbIII]

Public domain means no copyright

SCO are looking at it in terms of property and not copyright - a common confusion with software which has given us both a patent mess and a copyright mess. Look at it in context - public domain for property, the original meaning, is different to copyright terms (which are going to mean different things in every country anyway). SCO saw linux sitting there waiting for them to download it as unclaimed property, and have since tried to claim it in exactly the same way you can claim a pile of books on the side of the road. No one "owned" it, so why not them seems the be the thought process - exactly like fencing off a peice of common land or the recently common tactic of patenting the obvious and charging people for it.

Re:No Legs? Full of Holes?

[dbIII]

Why not go with a definition that is legaly correct, at least while discussing court cases?

Because it is different in different juristictions and whether you are talking about copyright or property. I'm using the word in the sense of property, a chunk of land, a domain, as described in "the tragedy of the commons".

Forget my choice of words - SCO saw linux in terms of unclaimed property and tried to take it - all the copyright issues were seen as irrelevant because they could make a buck before anyone could stop them by claiming it was theirs. Darl and his brother will walk away from the smoking ruins of SCO with a lot of cash and get good reputations among their peers - the tiny little technology company that employed less people than the average shopping mall that took on IBM, got a lot of press and raised their share price. He'll go onto another company, raise it's share price and fleece it too. There will be all kinds of bullshit like "he nearly beat IBM" while the reality is that he was going to lose against anybody on this issue, and it's just a way to make failure look like success.

Re:No Legs? Full of Holes?

[bhima]

I'm under the impression that all of SCO's products contain some things that are protected by GPL (like GCC). So if they do loose the right to distribute GPL protected code, I think that means they can ship nothing. hence the end of their unix business.

Re:No Legs? Full of Holes?

[black mariah]

Incorrect. You are allowed to charge whatever you want, provided you supply the source code for whatever binaries you distribute. HOWEVER, by doing so they do one of two things. Either they validate the GPL at which point they lose the right to bitch about the code in the kernel (since they VOLUNTARILY have been distributing it under the GPL), or they INvalidate the GPL at which point all rights to all the software revert back to the original owners and SCO is left holding their balls as wave after wave of geeks sign up for the inevitable class-action copyright infringement suit.

Re:No Legs? Full of Holes?

[Ohreally_factor]

The GPL is not a blanket instrument. If you violate one instance of it, say, for Linux, for example, it does not revoke your rights to use other GPL code, only Linux.

Put another way, if you violated the GPL for linux, you'd lose the right to distribute linux, but you could still distribute other GPLed code independent of linux.

Re:No Legs? Full of Holes?

[hesiod]

> I would bet a blind money could hammer away at a typewriter and finish writing Hamlet before I would bet SCO would win.

Money or Monkey? I guess it doesn't matter -- either way, it's the same amount of time.

Re:No Legs? Full of Holes?

[bhima]

I know GPL is "not a blanket instrument" but SCO has made blanket claims. They did not say "IBM's Linux activities are not covered by the GPL" nor did they say "GPL does not apply to Linux" They said that the GPL was both invalid and unconstitutional. So basically they have no license to ship anything covered by the GPL license.

Re:No Legs? Full of Holes?

[Ohreally_factor]

Well, you're right in a way, perhaps in the spirit of the GPL, but the actual letter doesn't prevent anyone from saying bad things about the GPL. So long as a person abides by the requirements, they can say all the bad things about the GPL they want and still retain the right to copy and distribute.

You and I both know that SCO is run by dishonest, hypocritical, double-talking scumbags (and that's being kind to them). We know they're in violation of Linux's GPL. We have a disagreement here on one of the finer points, but I think that this issue will resolve itself when SCO finally goes out of business. A company that doesn't exist doesn't have any rights! =)

Re:No Legs? Full of Holes?

[bhima]

From the GPL:

"You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

.

SCO has rejected the GPL, the part of this clause I highlighted leads me to believe that since they do not accept the license they are prohibited from distributing code protected by it. So I think that legally many more people could prevent them from distributing code protected by GPL.

How ever I agree with your comments in entirety and I hope that the GPL will come out stronger at the end.

And I still think that once it's all over a "SCO Linux" distribution aimed at migrating current SCO users to Linux is a good (as in the right thing to do and as in profitable) idea.

bright spots

[GillBates0]

The only bright spot for the company is the settlement with BayStar...

that and Darryl's shiny metal ass.

Re:bright spots

[ackthpt]

that and Darryl's[sic] shiny metal ass.

What makes you so sure Darl doesn't have a box full of tin foil hats under his desk?

"Nope, doesn't fit..nope, not this one either..maybe this one..ah, can't hear myself thinking, perfect!"

Re:bright spots

[drtomaso]

Darryl's shiny metal ass.

So if a golden parachute protects corporate executives in the event the company collapses, what does golden ass aromor protect against?

Re:bright spots

[MikeMacK]

Obvious - the IBM butt plug.

Re:bright spots

[ErikTheRed]

that and Darryl's shiny metal ass.

Hey, that's highly offensive to metal-bending robots! You should apologize to your nearest Bender unit by throwing him a party with lots of booze and gambling and hookers. On second thought, forget the booze and gambling.

Re:bright spots

[flacco]

that and Darryl's shiny metal ass.

i hear he himself had that protective shield installed.

Looney Tunes

[sethadam1]

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.

Re:Looney Tunes

[Anonymous Coward]

yeah and each time they hit a branch you can hear a bone cracking and SCO saying "I am fine... I am fine...".

Re:Looney Tunes

[ElForesto]

I've had the opposite reaction. They used to annoy me, now they amuse me. Normally you have to PAY for this kind of entertainment.

Re:Looney Tunes

[trentblase]

"I'm still alive, only I'm very badly burned"

Re:Looney Tunes

[mikael]

My favourite slashdot quote is the "Reading SCO news is like watching the crazy guy arguing with himself. Fun to watch, but only from a safe distance".

Re:Looney Tunes

[name773]

Hello up there! Anyone! Can someone call an ambulance? I'm in quite a lot of pain.
If somebody can open the retrieval hatch down here, I could get out. See, I designed this device myself and...oh, hi! Good, I'm glad you found me. Listen, I'm very badly burned, so if you could just--*gunshot* Ow! You shot me!
Dr. Evil: Right. Okay. Moving on.
You shot me right in the arm! Why did--*gunshot*

Re:Looney Tunes

[Don'tTreadOnMe]

I went back through a month or so of Business Week articles that mentioned Linux: None of them mentioned SCO, and when talking about the bright future for companies doing Linux related work, they never mentioned that these companies might have a problem with intellectual property or stolen code.

That right there says to me that no one in the business world is taking this seriously. So I suspect that it will shrivel up and blow away.

Re:Looney Tunes

[Anonymous Coward]

They used to annoy me, now they amuse me.

Well, you'll eventually grow bored with it. After all, SCO's motto is:

First they fight you
Then they laugh at you
Then they ignore you Then you lose.

Re:Looney Tunes

[ColaMan]

Why does SCO remind me of the Black Knight?

Pythonised legal summary:

SCO: None shall pass.
IBM: What?
SCO: None shall pass.
IBM: I have no quarrel with you, good SCO, but I must cross this bridge.
SCO: Then you shall die.
IBM: I command you as King of the Mainframes to stand aside!
SCO: I move for no man.
IBM: So be it!
*IBM cuts off SCO's left arm.*
IBM: Now stand aside, worthy adversary.
SCO: 'Tis but a scratch.
IBM: A scratch? Your arm's off!
SCO: No, it isn't.
IBM: Well, what's that then?
SCO: I've had worse.
IBM: You liar!
SCO: Come on you pansy!
*IBM cuts off SCO's right arm.*
IBM: Victory is mine! We thank thee Linux, that in thy mercy...
SCO: Come on then.
IBM: What?
SCO: Have at you!
IBM: You are indeed brave, SCO, but the fight is mine.
SCO: Oh, had enough, eh?
IBM: Look, you stupid bastard, you've got no arms left.
SCO: Yes I have.
IBM: Look!
SCO: Just a flesh wound.
IBM: Look, stop that.
SCO: Chicken! Chicken!
IBM: Look, I'll have your leg. Right!
*IBM cuts off SCO's leg.*
SCO: Right, I'll do you for that!
IBM: You'll what?
SCO: Come 'ere!
IBM: What are you going to do, bleed on me?
SCO: I'm invincible!
IBM: You're a loony.
SCO: SCO always triumphs! Have at you! Come on then.
*IBM cuts off SCO's other leg.*
SCO: All right; we'll call it a draw.
IBM: (prepares to leave the scene) Come, Novell.
SCO: Oh, oh, I see, running away then. You yellow bastard! Come back here and take what's coming to you. I'll bite your legs off!

Re:Looney Tunes

[goatan]

SCO: Tis but a scratch the Black Darl always wins.

IBM: What do you meen it's a scratch your arms hanging off

SCO:I've had worse

IBM:You liar

Yet Again

[Anonymous Coward]

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.

Re:Yet Again

[InfiniteWisdom]

He wonders if Slashdot gives us an objective viewpoint. Hahaha.

Re:Yet Again

[MikeMacK]

Just about as long as SCO has claimed to have "proof" of code copying into Linux.

Re:Yet Again

[Nurseman]

but I'm wondering if Slashdot is not really giving us an objective viewpoint here.

I'm not crazy about IBM, or think they are some shining knight. As an outsider, who uses Linux for somethings, Windows for others, I just don't see anyway SCO can win. None of their arguements have any basis in logic, not that the Law is always logical. I think this whole thing was a scam, to make money and get bought. They seriously miscalculated, and I hope they go to jail for it.
Please play Devils Advocate and tell us what we are not seeing, give us ONE SHREAD of proof that IBM has done anything wrong. I am open to your reply.

Re:Yet Again

[Samrobb]

... I'm wondering if Slashdot is not really giving us an objective viewpoint here.

You must be new here.

Re:Yet Again

[Xshare]

Slashdot pundits??? Anyone remember a few weeks back when we were talking about how there might be a astroturf campaign started on /. comments?

Re:Yet Again

[LWATCDR]

Most people consider and objective viewpoint to be the one they agree with.
Actually you will find a lot of pretty accurate info on slashdot about this. Truthfuly it is mainly links to groklaw.

Re:Yet Again

[georgewilliamherbert]

I'm wondering if Slashdot is not really giving us an objective viewpoint here.

As a rule, no, Slashdot readers are monumentally biased.

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.

Re:Yet Again

[Solder Fumes]

I wonder if a first-post consisting only of "You must be new here." would still get modded to +5, Funny.

Re:Yet Again

[skink1100]

Astroturfer, Astroturfer!!!

Re:Yet Again

[HiThere]

Many of the engineers have already left. It's the one's still left that aren't yet (again) on the chopping block.

And with SCOX on their resume, who would hire them?

Re:Yet Again

[HotNeedleOfInquiry]

Reminds me of a local talk radio show:

We've had people call in and say "you're just doing that for the ratings". Let me make one thing clear, everything we do is for ratings.

Re:Yet Again

[SharpFang]

I worry even more the lawsuits will be settled. SCOX will stop at some $2, and will start climbing its way back up from slow UNIX sales, everything will be forgotten and SCOX will back out of it, weakened but safe, never taking the final blow.
We need SCO dead, as a warning to everyone who would want to mess with Linux again.

Re:Yet Again

[Your Anus]

I don't know if the public (or the SEC) will go after him, but I bet his lawyers will want ap iece of him, particularly if he runs out of money and dowsn't pay them. Oh, the delicious irony of him become Boies, Schillers' permanent love slave.

Re:Yet Again

[SharpFang]

I guess lots of managers who knew what was going on, just checking that they left by their own request, not were made redundant.
The engineers of SCO are quite reasonable. It's the management/marketing/legal bandwagon that stinks.

My question is, who will hire these managers with SCOX on their resume :)

Re:Yet Again

[Martin Blank]

I was amused by the marksman analogy. I'm not much of a marksman, either, but I've been around enough to know that they usually leave one hole in the target. It's the rest of us that leave the target full of them.

Re:Yet Again

[Samrobb]

I know what you mean :-) This is the first time I've ever used this line, and it was just such a classic opportunity that I just couldn't resist...

Re:Yet Again

[pjrc]

Please play Devils Advocate

IBM there are no notes or emails relevant to the case from a couple high level executives who were supposedly involved in IBM's linux stratagies.

IBM doesn't want to disclose every tiny unreleased revision to every file in AIX and Dynix over the last 20 years

IBM doesn't have contact info for a bunch of people who aren't IBM employees anymore (including some SCO folks).

Comparing source code is too difficult

Too many third parties contributed to linux and IBM won't tell SCO who they were (they'll only point SCO to the changelogs).

IBM's source control software has just gotta have an easy way to extract everything SCO wants.

and tell us what we are not seeing, give us ONE SHREAD of proof that IBM has done anything wrong

Oh, I'm sorry. You asked for a fact. Well, those are in sort supply these days. But some will probably turn up eventually, if the court orders IBM to let SCO have billions more lines of IBM's code, every email every IBM programmer ever wrote or read, and photocopies of everything every one of their people has ever applied to paper using a pencil or pen. After all that, and 25000 or so man-years to go through it all, we can speculate that maybe, just maybe a fact will turn up.

Re:Yet Again

[vsprintf]

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 term fairly key manager is an oxymoron, unless you mean the one with the keys to the building. :)

Re:Yet Again

[trewornan]

Learning Disability then?

Re:Yet Again

[Gilmoure]

What, did SCO sneak in, drink Linux's beer, break it's CD's, have sex with it's girlfriend (Linux's girlfriend?) and scratch an itch down low with Linux's toothbrush?

Re:Yet Again

[Gilmoure]

If you want fair, objective reporting, try fark.com or somethingawful.com

Sources have just confirmed...

[ravenspear]

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.

Re:Sources have just confirmed...

[Asterixian]

This will dissipate any investors' fears pertaining to the validity of the lawsuit.

...to the validity of what lawsuit? SCO has never been part of a lawsuit. The real purpose of today's press conference is a surprise launch of our new product! It's called Linnux, and it's only $699 per seat!

Re:Sources have just confirmed...

[Anonymous Coward]

that at the upcoming press conference SCO will announce that IBM does not exist.

Actually they'll announce that all of IBM IP is dervied from IP that they acquired with the Unix purchase which came from AT&T. Since AT&T had the patent for transistors, they claim that the transistor begat the computer which begat Unix, therefore they have all licensing rights to the transistor and anything "derived" from it. AAMOF, they have conclusive evidence that large portions of the 360 microcode is based on the source listing for 'ls' "they both show obvious similarities, similar ascii characters were found to exist in both, leading us to conclude that the microcode is derivative therefore illegally licensed" said an SCO representitive.

Re:Sources have just confirmed...

[KingPunk]

haha. i've thought the same thing, they almost remind me of the
Iraqi propaganda minister.. "the us troops are not in bagdad, see i am still here"
"IBM, who are they?. they don't exist, buy our servers, we created the idea of them!"
makes me wonder how they actually get away with this, considering if you or i do this in the court of law,
we're borked.

Re:Sources have just confirmed...

[Gadzinka]

There is no spoon^H^H^H^H^HIBM

Re:Sources have just confirmed...

[ronaldb64]

KING ARNULF: Stay calm! This is NOT happening. Now, I know what some of you must be thinking... the day has come.... we're all going down, etc. etc. But let's get away from the fantasy and look at the FACTS.

FACT ONE - The threat of total destruction has kept the peace for one thousand years.

FACT TWO - The chances of it failing now are therefore one in three hundred and sixty-five thousand.

FACT THREE - Our safety regulations are the most rigorous in the world. We are all nice to each other, we never rub each other up the wrong way or contradict each other, do we?

CROWD No.

CITIZEN We... er... do seem to be going down quite fast, Your Majesty - not trying to contradict you, course.

KING ARNULF No, of course you're not, citizen. But let's stick to the facts. There has NEVER been a safer, more certain way of keeping the peace. So whatever's happening, you can rest assured, Hy-Brasil is NOT sinking. Repeat, NOT sinking.

Thank you Terry Jones. The insight in SCO's claims that you provided in 1989 proves to be eerily accurate, 15 years later.

Re:Sources have just confirmed...

[vsprintf]

(just do nslookup on this address, dummy)

Note: nslookup is deprecated and may be removed from future releases.

Shouldn't a BOFH be using something a little newer? Hmm . . . then again, never mind.

There's a better Groklaw article.

[Jaywalk]

I think the more important Groklaw story is this one. The part I found telling was:

Pacer indicates that the SCO-Novell hearing on Novell's motion to dismiss is going to be held on September 15 at 2 PM before Judge Kimball . . . That's not only the same day as the SCO v. IBM hearing on IBM's 10th Counterclaim, it's the same time.

Since the same judge is handling both cases, I can't conceive of a situation where he would want to claim the Novell suit should not be dismissed and that the IBM counter-claim should be denied. Continuing the Novell suit would complicate the IBM suit, so trying to handle them both in the same afternoon would be a potload of work. 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.

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.

Re:There's a better Groklaw article.

[neurojab]

>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.

Re:There's a better Groklaw article.

[UnknowingFool]

Things can still go on for SCO, but it will be much harder. In the Novell case, SCO is arguing slander not copyright ownership. If Novell gets the case dismissed, SCO has to actually try to prove ownership. IBM's case is more important. If IBM wins then IBM still have to fight it out about Monterey not Linux although there's not much to be settled in terms of liability. Red Hat's case can be permanently stayed until Unix copyright onwership is settled.

blind

[jrossi02]

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...

Re:blind

[flacco]

i spend most of my time on the internet spotting holes, come to think of it.

Re:blind

[drinkypoo]

So are you a skript kiddie or a pr0n monkey?

Am I Outdated?

[Orange Apple]

Didn't Microsoft invest a lot of money in them? If so thats a "bright spot". Or was that last querter?

Re:Am I Outdated?

[name773]

Or was that last querter?
i have no clue, but that's a cool word... even if it's a typo
thanks

Re:Am I Outdated?

[uberdave]

Microsoft knows a tax writeoff opportunity when they see one.

"It's not about plusses and minuses. It's about plusses and plusses, if you play the minuses correctly" - Momma Carlson - WKRP

Re:Am I Outdated?

[black mariah]

Every brings this up as if it's something astonishing. "OMG! MS INVESTED IN SCO! THEY'RE FUNDING THE FUD CAMPAIGN@!!!!!!"

Because, as wel all know, Microsoft has never invested in another company simply to make money.

Re:Am I Outdated?

[vsprintf]

Because, as wel all know, Microsoft has never invested in another company simply to make money.

Microsoft invests in some companies (Apple) in order to deflect actions from a tame DOJ. When Microsoft wants to "make money" it buys a company or cuts off its "air supply" to get its product. Why would MS need to buy a multi-million dollar license for an antique UNIX that is decades behind the times? So they can produce something that only works with decades-old UNIXes? That'll surely make them tons of money. Buying a useless license for millions is not investing, it's a gift.

watch the future, not the past

[FrankHaynes]

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.

Re:watch the future, not the past

[Xshare]

But doesn't the forecast for the next quarter and year depend on the past (earnings report), and those who create the forecast care about the past?

Re:watch the future, not the past

[geomon]

The past is often a guide to the future. Better phrased: "Those who refuse to learn from the past are doomed to repeat it".

Taking a look at the results from the previous year indicate a progressive decline in Net Income Applicable To Common Shares. This metric is not something that will give investors something to do handsprings over.

Re:watch the future, not the past

[m_evanchik]

My guess is that the markets could not care less about SCO at this point

Re:watch the future, not the past

[_Sprocket_]

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.

Let me guess. They take a loss at every trade. But they make it up with volume.

Stock near the 52 week low.......

[i_want_you_to_throw_]

and that doesn't inspire confidence either. It probably isn't reaching too far to say that SCO ain't long for this world.

Re:Stock near the 52 week low.......

[gcaseye6677]

I find it interesting that the conference call was scheduled for 5 PM Eastern time, right after the stock market has closed for the day. Gee, why would they want to do that?

Re:Stock near the 52 week low.......

[autiger]

It is common practice to announce quarterlies and annuals after the close of trading for the day.

Re:Stock near the 52 week low.......

[Ohreally_factor]

I believe it's common practice, if not an outright SEC rule, to have such conferences during non-trading hours. Your suspicions are misplaced.

Re:Stock near the 52 week low.......

[sbeitzel]

Earnings calls are ALWAYS scheduled for after the market closes. It's so that everyone will have the night to think about what got disclosed and then go trade in the morning.

Want to listen ?

[Anonymous Coward]

here you go

ahh the beauty of the Internet
and the stock is currently trading at $3.80, 6mo performance is definatly a sell

Re:Want to listen ?

[Random BedHead Ed]

Wow, thanks! I'm online waiting for the conference now. Should be amusing, interesting or boring. Or maybe infuriating. Either way, Mod Parent Up. This is useful ...

Re:Want to listen ?

[Meostro]

or here if you want a straight shot...

Re:Want to listen ?

[nadamsieee]

Darl just described SCOX's 3rd quarter as "active & productive". Riiiiight.

Re:Want to listen ?

[Platinum Dragon]

Darl just described SCOX's 3rd quarter as "active & productive". Riiiiight.

They generated tons of bullshit, didn't they?

Re:Want to listen ?

[grendelkhan]

Is it just me or is the operator very very bad at reading? He sounds like he's never read this before. And other filings. We have made... Chief Ecc. Executive Officer.

SCO isn't the only party that deserves to lose

[Quinn_Inuit]

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).

Re:SCO isn't the only party that deserves to lose

[Anonymous Coward]

IANAL, so I'm curious if David Bois and his firm are in greater jeopardy here because they took an equity position in SCO in deference to cash for legal fees.

Additionally, in having that equity position, in the almost-certain shareholder suits and SEC investigations that would inevitably follow after SCO's case is dismissed and they go bankrupt, would there be some interesting RICO implications if his firm knowingly advanced false claims?

Re:SCO isn't the only party that deserves to lose

[Quinn_Inuit]

IANAL, so I'm curious if David Bois and his firm are in greater jeopardy here because they took an equity position in SCO in deference to cash for legal fees.

Possibly. If they were driving up the stock price to their own benefit with claims they knew to be false, there could be some SEC issues. Things can get sticky when lawyers accept stock in their clients.
Additionally, in having that equity position, in the almost-certain shareholder suits and SEC investigations that would inevitably follow after SCO's case is dismissed and they go bankrupt, would there be some interesting RICO implications if his firm knowingly advanced false claims?

I have no idea. I haven't really studied RICO, but I get the impression that law can be used to prosecute almost anything under the sun.

Re:SCO isn't the only party that deserves to lose

[Asprin]

I have no idea. I haven't really studied RICO, but I get the impression that law can be used to prosecute almost anything under the sun.

+1 Funny, +1 Insightful, +1 Interesting, +1 Underrated, +1 Informative, -1 YouMadeMePeeMyPants. =P

I wonder what Gene Amdahl thinks?

[e9th]

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."

Re:I wonder what Gene Amdahl thinks?

[the_maddman]

Why's that ironic? They compete with Microsoft, don't they?
IBM Invented FUD in the 1980's. Gene Amdahl, would of course be the guy behind Amdahl computers, which made hardware compatible with IBM's mainframes, and was one the receiving end of a lot of FUD.
You can't even count FUD as a Microsoft innovation.

Re:I wonder what Gene Amdahl thinks?

[e9th]

Replying to myself here.

There is one difference: Amdahl actually had a competitive product, while SCO has only lawyers.

Re:I wonder what Gene Amdahl thinks?

[snake_dad]

You can't even count FUD as a Microsoft innovation.

The name Gore comes to mind...

Re:I wonder what Gene Amdahl thinks?

[Jeremi]

Why's that ironic?

It's ironic because the term FUD (fear, uncertainty and doubt) was originally coined to describe IBM's sales practices in the 70's and 80's.

Re:I wonder what Gene Amdahl thinks?

[danb35]

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."

Indeed, and SCO noted as much in their court filings. This led ESR to update the listing for FUD in the Jargon File.

Re:I wonder what Gene Amdahl thinks?

[myowntrueself]

"IBM Invented FUD in the 1980's."

FUD was invented in bibilcal times; what do you think the bible is all about?

A nameless, faceless god, a devil of uncertain pedigree, claims and counterclaims about unfortunate events and terrible but poorly defined possibilities, and in the middle, humanity trying to decide what to believe.

What do you expect?

[CrashPanic]

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.

Home Simpson?

[ackthpt]

Reading SCO news is like watching someone fall out of a tree and hitting every branch on the way down.

I think that was actually Homer Simpson, but don't recall the episode or why, but the

"D'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- d'oh! -- etc."

should echo investor sentiments rather accurately.

"Me, I invest in beer at least I get something for my money."

Re:Home Simpson?

[dknight]

jumping the springfield gorge on bart's skateboard and missing... and then falling out of the ambulance, and falling down the gorge a second time...

its the Bart the Daredevil episode.

Yes, I have no life.

Re:Home Simpson?

[CliffH]

"Me, I invest in beer at least I get something for my money."

Isn't this what SCO investors are doing, pissing away thier money?

Re:Home Simpson?

[crotherm]

no no no... it is the April Fools Day one where Bart takes a Duff can to the local hardware store to shake it up in the paint mixer. When Homer opens it, it almost kills him. As Homer lies in the hospital bed, he remembers a long string of "D'oh"s clipped from previous episodes, which get him to snap out of the coma and start to strangle Bart.

Re:Home Simpson?

[conteXXt]

From greenspun.com

If you had bought $1000.00 worth of Nortel stock one year ago, it would now be worth $49.00. With Enron, you would have $16.50 of the original $1,000.00. With Worldcom, you would have less than $5.00 left. If you had bought $1,000.00 worth of Budweiser (the beer, not the stock) one year ago, drank all the beer, then turned in the cans for the 10 cent deposit, you would have $214.00. Based on the above, my current investment advice is to drink heavily and recycle.

NOw I am not sure on the current price of Nortel, or am I sure anyone would be able to ride it from top to now without taking profits (lol I mean losses)

P.S. in Ontario Canada (where I and Nortel are from) beer cans do indeed have 10 cent deposits.

Like the old stock broker saying...
"We'll take your money and my experience and turn that into my money and your experience."

Re:Home Simpson?

[david.given]

Well, if I've read this chart correctly, if a year ago you'd bought $1000 of BUD, it would now be worth about $1020.

I leave the moral of this story as an exercise for the reader.

Re:Home Simpson?

[rainman_bc]

LOL oldest friggin' email out there dude.

If you bought Nortel a year ago it was $4.16, and you could have almost tripled your money if you sold at the right time.

Still it's trading at $4.97 today... hardly a bad loss IMHO...

Your post is over 2 years old, from 1 year after the dotcom bubble burst when Nortel was trading at $100 or so. Time to find new material.

Re:Home Simpson?

[dcam]

I think that one of the scenes that Homer remembers while in the coma is from the daredevil episode.

Re:Home Simpson?

[Feztaa]

"Almost kills him" is an understatement, there was a mushroom cloud that blew the roof off of the house ;)

Re:Home Simpson?

[conteXXt]

well if you had said anything nice at all in your post, or if you had even read the VERY first LINE...
I would right now be helping you with your marriage. (Has it happened yet?)

ahhh f' it. I'll help anyway. Cheers Mate.

Re:Home Simpson?

[rainman_bc]

Heheh... Didn't mean to be mean :)

Just bought Nortel stock is all... Got all excited when I saw a post I knew something about =D

Re:Home Simpson?

[u02sgb]

It was the episode where Homer tries to jump the canyon on a skateboard. They successfully manage to get him out to the top of the hill, ambulance drives away.... and he falls out the back bouncing all the way to the bottom. Classic.

Re:Home Simpson?

[lucas teh geek]

Lou: "That sounded like an explosion at the old Simpson house!"
Wiggum: "Forget it! That's two blocks away!"
Lou: "It looks like there's beer coming out of the chimney!"
Wiggum: "I am preceeding on foot. Call in a code 8."
Lou: "We need pretzels, reapeat, pretzels."

Re:Home Simpson?

[j0eshm0e]

What a $4000 investment of both SCOX stock at its height and the same in Molson Canadian.

SCO stock 3/21/2000 High 132 Close 117.75

SCO stock 8/31/2004 High 3.96 Close 3.80
$4000 in SCO stock would have got you around 30 shares and you would have a value of $115 today. $4000 in Molson Canadian (at $30 for 24 bottles) would get you a deposit (at $.10 a bottle) of about $320.

And you'd still be drinking your investments today!

Heh. Example from the Motion:

[SatanicPuppy]

"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.

Re:Heh. Example from the Motion:

[ackthpt]

and hit them with big ugly damages just for saying it.

It would be rather amusing if IBM ended up owning SCO and whatever IP they have as a result of SCO being unable to pay the damages and going into default. I suppose it's possible, but who could rule out Microsoft (who certainly may see some stake in this, lord knows they've thrown tons of money at more absurd things) picking up the remains, after all, with 5K patents and planning to have 5K more.

Re:Heh. Example from the Motion:

[jhylkema]

Quoth the poster:

Its a fun read. I'll be really suprised if they don't get a summary judgement in their favor.

Don't forget that Microsoft has been bankrolling this Bataan Death March of litigation from the very beginning. Any non-M$-bankrolled attorney would have had a "come to Jesus" talk with these clowns long ago. I hope IBM does get summary judgment and I hope SCO gets sanctioned under FRCP 11 for bringing this load of crap and for filing the inevitable frivolous appeals. Won't make a difference, though, since SCO will have long since filed for Chapter 11 bankruptcy^Wprotection from creditors while Darl and the gang skip the country with all that money stashed in their Swiss bank accounts.

However, don't make the mistake of thinking IBM's eventually prevailing on summary judgment will be the end. No, to quote Churchill, that will be "at most, the end of the beginning." An appeal will surely follow. All the while, M$ gets to spread FUD about how Linux infringes IP rights. The PHBs will buy it and will stay with the "safe" choice. All the while, M$ will be regrouping. What's next, a BIOS that locks out "non-approved" (read: non-Microsoft) software?

Re:Heh. Example from the Motion:

[bobdotorg]

Don't forget that Microsoft has been bankrolling this Bataan Death March of litigation from the very beginning. Any non-M$-bankrolled attorney would have had a "come to Jesus" talk with these clowns long ago.

A direct result of their "Come to Butthead" talk with Microsoft a few years ago.

Re:Heh. Example from the Motion:

[mabinogi]

Evidence? Proof?

I've seen a lot of people say that as if it were accepted fact, but I don't recall ever seeing any proof.

SCO license purchases don't count.

I realise that Microsoft can't be unhappy about SCO's actions, but surely they have more productive things they could spend money on than funding a competitor's doomed legal adventures...

Re:Heh. Example from the Motion:

[bleckywelcky]

It would be interesting if IBM could show that SCO had absolutely no case whatsoever from the beginning and that the key driver in all of this commotion was SCO's legal department and their hired lawyers. And, if they were able to do this, if they could hold the lawyers responsible for all of the commotion by showing that they were moving things along just to collect legal fees. Then, if they could move to hold the lawyers responsible for all of the crap they stirred up and fine them or garnish their wages appropriately, we could actually have the people who are messing around with everyone pay the price for sucking the blood out of our economic system.

Well, it's a thought.

Re:Heh. Example from the Motion:

[mabinogi]

you know there were two types of responses I could have got to that.

There was the type in which someone provided the evidence I was asking for, and then there was the type that demonstrated the poster to be an angry 15 year old that needs to get out of their mother's house more often.

I received two replies, one of each type. Yours was not the former type.

Re:Heh. Example from the Motion:

[Ohreally_factor]

So, you'd let Darl, Blake, Ray, etc off the hook because you don't like lawyers?

If you're going to think thoughts, think first. =)

Re:Heh. Example from the Motion:

[sumdumass]

What's next, a BIOS that locks out "non-approved" (read: non-Microsoft) software?

actually...yes.

unless you already knew that and thru it in for effect. I don't remeber the reference exactly but i think it is part of some DRM scheeme microsoft is/has been cooking up that resembles the X-BOX system. I'm sure there will be some hack to get around it once it is redily availible but i'm not sure that it would survive the DMCA.

Very interesting point you have brought up. This could be just a fud session designed to delay exceptance of "other OSes" untill some new version of windows has a feature the requires this "bios lockout"

Re:Heh. Example from the Motion:

[jhylkema]

I did already know that, but AC reminded me of the name. This SCO lawsuit business is scaring the PHBs off of Linux long enough for M$ to release an OS with these "features." Myself, I'm not worried since it'll get hacked in short order as all of these other harebrained schemes have. But wide adoption of this would probably spell doom for Linux. Who's gonna continue to develop something that can't run on any hardware out there?

Re:Heh. Example from the Motion:

[aka-ed]

The evidence of MS puppetry here has been in plain sight of all who have followed this issue. If you haven't been following the issue, it might have been reasonable for you to expend a small effort on research before opening your pie-hole for purposes other than pie.

Metaphor alert!

[Anonymous Coward]

...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.

Well, we certainly have found today's Mixed Metaphor champion.

It's still intriguing...

[Skiron]

... 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.

Re:It's still intriguing...

[alw53]

It just blows me away that this P.O.S. company can STILL be selling at 20 times book value and in excess of a year's sales. With declining sales, losing money every quarter, and clueless management. The high-tech stock market is full of air, like cotton candy (or, more to the point, a bubble).

Re:It's still intriguing...

[ClosedSource]

IBM isn't fighting for OSS and they were second only to AT&T in the monopoly department. IBM is the SW patent leader and hasn't taken any steps to reduce their new patent filings or release they current ones into the public domain. IBM is looking out for number one just as it always has and will drop OSS like a bad habit if the winds change.

Re:It's still intriguing...

[stevesliva]

Why reduce patent filings? To leave a bigger opening to be sued by more scum like SCO? IBM's software patents are part of it's counterattack against SCO.

Re:It's still intriguing...

[HiThere]

Have you ever tried to drop a bad habit? Much easier to drop a hot potato.

Re:It's still intriguing...

[black mariah]

1. Did they really think they had something?

Probably. They just picked the wrong target.

2. Was it a hope for IBM et al to buy them out and save a failing Company?

Doubtful. IBM is known as a company full of assholes when it comes to business. They'd rather stomp a company into the ground than bend over show their ass to the world. Personally, I respect that attitude.

3. Did M$ really engineer all this anyway?

Hell. No. This is a stupid fucking question. Just think about it for a second. Do you really think that MS would do something this incredibly incompetent? Please. If MS wanted a piece of this action, they would have fucking BOUGHT SCO and done it RIGHT.

Re:It's still intriguing...

[ClosedSource]

How clever of IBM to anticipate SCO's attack by filing for thousands of software patents many years before SCO's existence. IBM may be using software patents as part of their court case against SCO, but it's just business as usual for IBM.

Re:It's still intriguing...

[rbgaynor]

3. Did M$ really engineer all this anyway?

Hell. No. This is a stupid fucking question. Just think about it for a second. Do you really think that MS would do something this incredibly incompetent?

I willing to bet a copy of MS Bob that you're wrong about their competency :)

Re:It's still intriguing...

[autiger]

IBM's patents aren't all software, and actually are probably majority hardware technologies.

As for releasing IP; it's not the public domain per se, but they donated both the Eclipse platform and the Cloudscape database to open source projects.

Re:It's still intriguing...

[black mariah]

And how is that in any way relevant to how their lawyers act? Shitty products != SCO-level incompetency.

Re:It's still intriguing...

[ClosedSource]

I'm sure IBM does have a lot of HW patents as well, although that fact doesn't weaken my point in any way.

Yes, the technologies that IBM believes they can benefit more from by making free (as in beer and as in GPL) they make free. Those they believe they can make more profit from selling (like WebSphere) they keep closed.

Re:It's still intriguing...

[Anonymous Coward]

I ran into a college classmate over the weekend who's a law school intern for SCO this summer. He was pretty smug about the whole thing and thinks SCO has an open-and-shut case.

So based on that, I'd guess:
1. Yes. He was saying it was a contract case, not involving copyright. Not sure how that gels with the arguments out of SCO, but hey... IANAL.
2. Yes. My classmate still thinks SCO will be purchased by IBM "soon."
3. Dunno, though the Baystar connection implies they were willing to pump $$ in after it got started.

You wonder about the power of the court. There is considerable power in legal precedent. So I'd *love* to see this case reach decision against SCO and prove the validity of the GPL and free software.

Re:It's still intriguing...

[markus_baertschi]

I disagree somewhat and would say it this way:

1. Did they really think they had something ?

   They thought there was hope to find something, but didn't look closely enough to see these were all blanks.

2. Was it a hope for IBM et al to buy them out and save a failing Company ?

   I think so. Unfortunately for them IBM preferred to stand up and defend its honour, than hand over a wad of money to shut them up.

3. Microsoft was not involved right at the beginning. It then bought a dummy license for a couple of million and was probably at least close to the investors handing over $50M last year (Baystar/RBC PIPE deal).

Oblig. Monty Python quote...

[CaptainPinko]

No no no, it's just pining for the fjords. Just don't ask it for evidence... SCOs stun easily.

Analysis at LamLaw

[bstadil]

Look at LamLaws analysis of this.

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.

Watch the Wookie, not the financials

[overshoot]

Wall Street and financials have nothing to do with the price of this stock. Most of it is held by insiders, and of the public float much more than half is shorted.

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.

Re:Watch the Wookie, not the financials

[winse]

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

except for those few holding it short that want to cover before sco ceases to exist. There might be a few people in that boat.

Re:Watch the Wookie, not the financials

[FrankHaynes]

No, actually if you shorted the stock and the company goes out of business you pocket every penny for which you sold it. SCH-WING!!

Those little witticisms about 'the past is prologue' and 'those who ignore history...' are really cute. But then I remind myself: this is Slashdot and it all falls into the proper perspective.

If there is dispute over the ownership ...

[burgburgburg]

of the copyrights, the legal presumption is that the copyrights still reside with the original owner: in this case, Novell.

Re:If there is dispute over the ownership ...

[Dastardly]

the legal presumption is that the copyrights still reside with the original owner: in this case, Novell.

Yes, but I don't think judges often go beyond the minimum needed to decide a case. And, in order to decide the slander of title all the judge needs to rule is that it is questionable whether SCO owns the copyrights, and therefore reasonable and without malice that Novell made the statements that they made.

IANAL

The just thought of a problem though. SCO could now file a contract case regarding who owns the SVR4 copyrights. This could have bad repercussions, in the sense that SCO could get delays in other cases while the new one just gets started.

The problem is if the copyrights are in question. I don't think that decides the RedHat case, but might result in dismissal without prejudice or a continued stay with an injunction telling SCO they must discontinue interfering with RedHats business until the copyright case is decided.

Autozone woudl probably continue to be stayed. And, there may even be the possibility that IBM gets stayed. Although if IBM doesn't request the stay, I am not sure SCO could without severe embarassment.

SCO: "Sorry judge, we submitted this lawsuit too soon. We need to clear up who really owns the copyrights to SVR4. Could we get a stay until the Novell case is decided?"

Maybe they could get a stay on a couple of the counterclaims, and continue with the rest since they characterize their claims as contract claims. Either way whiel SCO submitting a copyright case against Novell would clear everything up eventually, (probably in Novell's favor). I could result in SCO getting more time to bluster.

Dastardly

sco...

[Anonymous Coward]

SCO = losers

Hmm intriguing. yet predicatable

[dr_labrat]

Why have I seen so few arguments along these lines...?

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?

Groklaw's IBM memorandum is /.ed; here is mirror

[SlashdotTroll]

(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

Illegal to discriminate against SCO employees?

[mcSey921]

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.

Re:Illegal to discriminate against SCO employees?

[gcaseye6677]

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).

Re:Illegal to discriminate against SCO employees?

[obdulio]

If you hire a former SCO employee, you risk Darl later sueing you claiming that this employee put SCO code into yours.....

Re:Illegal to discriminate against SCO employees?

[drinkypoo]

Corporations never cease to exist, they just go dormant for a while (if any time at all) and get transferred to another corporation.

Re:Illegal to discriminate against SCO employees?

[Frostalicious]

That being said, if Darl McBride's resume crossed my desk, it would go straight in the trash after being defaced in various ways.

And pass up the opportunity, after interviewing him, to offer him a position in the janitorial department? That would be a laugh of a lifetime.

Re:Illegal to discriminate against SCO employees?

[surprise_audit]

Perhaps a better question would be: "Which would look worse on a resume, working for SCO or claiming to have been out of work during that time?"

Re:Illegal to discriminate against SCO employees?

[DMUTPeregrine]

Hire him as a janitor, make him clean the toilets. The brushes, gloves, etc (anything better than tounge) should come "next Tuseday."

Re:Illegal to discriminate against SCO employees?

[PMuse]

...see that they worked for SCO ... and exclude them from consideration for hire for that reason alone?

It's a little like wondering who has the Alien in their chest? You know that an Alien is in at least one of the people still at SCO.

What you don't know when interviewing some one who isn't at SCO anymore is: are they a survivor or a carrier.

You're Kidding, Right?

[endeavour31]

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.

Re:You're Kidding, Right?

[Random BedHead Ed]

Then again, this case is a bit different. SCO is fighting on multiple legal fronts, and the outcome of the Novell suit has a direct impact on whether SCO's claims in the IBM suit will hold water. If the Novell suit goes badly for SCO, some of SCO's IBM claims will vanish. So yes, you're right that a case like this would usually be put before a jury, but it's clear that what'll happen on the 15th could be this:

In all likelihood SCO's copyright claims will be dismissed due to (a) failure in the discovery process, and (b) Novell's claims about the copyright transfer. The result would be a limited contract suit that would indeed probably go to a jury. But the resulting suit would hold little interest for the /. community. In other words, no more SCO stories on this website.

Re:You're Kidding, Right?

[ChefBork]

You REALLY need to go to GROKLAW and do some research. You'll quickly find that SCO lawyers appear to be brain dead from some of the arguments they're making.

Re:You're Kidding, Right?

[Hobadee]

...Jury eh... we should work to get a few slashdotters on the jury! SCO would go down REALLY fast if we managed that.

Re:You're Kidding, Right?

[MooseByte]

"Please do not rely on a litigant's motion papers to prove a point. [ ... ] 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"

Have you actually *read* each side's filings over the past year? I've read many of them, including the latest round. SCO's lawyers come off sounding like drunken frat boys on a dare. IBM's wrecking crew sound like The Terminator, unwavering, unimpressed, and about to crush you under metal alloy heel.

You really need to read the entire filing on this one. It's night and day.

Saying you can't judge the case based on filings is like saying you can't judge the likely outcome of a football match by looking at the players, where one team is a bunch of kids in nappies and the other are bouncing the ball around the circle with their heads.

Re:You're Kidding, Right?

[HiThere]

SCOX does appear to lack decent lawyers. They have many numerous mistakes in their filings, some of which "a second year law student would be ashamed of". (IANAL, so I'm relying on the expertise of others in that judgement.)

Some people have speculated, without other evidence, that the intention is to ask for an appeal on the basis that SCOX lacked competent representation. I consider that unlikely. I consider it far more likely that no competent lawyer wants to be associated with a case that's so bad. But I have no special knowledge, so this is an incompetent opinion.

Re:You're Kidding, Right?

[Platinum Dragon]

In most cases anyway a judge will let the jury decide.

Unless I'm mistaken, there is no jury in either of these civil cases. Judge Kimball is the sole decision-maker here.

You really haven't been following this case, have you?

Re:You're Kidding, Right?

[Anonymous Coward]

"n 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. "

That's exactly what IBM is arguing, that there are no facts in dispute for a jury to debate, that SCO hasn't put forth any supposed facts on copyright infringement. SCO's response to the motion is mostly fluff, they still fail to point to any salient facts. Since judges decide law and no facts regarding copyright seem to be in dispute, this case is ripe for a summary judgment.

Re:You're Kidding, Right?

[UnknowingFool]

In it's motion, IBM is pointing out all the inconsistencies in SCO's story. In one case, they argued this and said this, but in this case, they are saying the opposite. By pointing this out, they are forcing SCO into one corner or the other since most judges don't like these tricks. At the same time, they're painting SCO is a bad light.

While there is a lot of chest thumping in many motions, IBM presents some convincing legal arguments. For example the Gupta Declaration. To use an expert witness, you have to establish an expert's credentials. SCO did not do that. Also it must be presented in a timely fashion. SCO did not produce Gupta's Declaration until after IBM asked for Summary Judgement. It's a matter of procedure. Not following procedure alone is sometimes enough to get it thrown out.

Even if it that could be overcome, IBM points out that Gupta did not use the abstraction-comparison-filtration test that the Tenth Circuit has adopted in software copyright cases. This is sort of saying that to get a DNA match in a case, you didn't use one of the standard DNA testing methods but invented your own. That again is enough for it be thrown out.

Barring all that, IBM attacks the Gupta Declaration point by point with a properly certified expert. IBM didn't need to do this last step, but they're being very thorough. On a few examples, IBM points that certain pieces of code that Gupta says are similar are not remotely similiar even to someone who knows nothing about programming.

Re:You're Kidding, Right?

[CmdrGravy]

"I am sure SCO's motions look pretty too"

Well I haven't seen all the originals, maybe they are printed on nice colorful paper and written in beautiful colours, but the motions I have read of SCO have been largely nonsensical and it has been very hard to see what point - if any - they are trying to make.

IANAL but IBM's motions appear to make some very clear points which are then exhaustively backed up throughout the document which is a striking counterpoint to SCO's ramblings.

Re:You're Kidding, Right?

[Flower]

Everybody has requested a jury trial. It's just that at this point and time we really haven't gotten past the discovery phase of the trial. Currently, it is Judges Kimball and Wells making decisions here and that is only because the issues being presented are a matter of law and not of fact. Whatever gets past all these summary judgements and dismissal motions will go before a jury.

Re:You're Kidding, Right?

[surprise_audit]

Some people have speculated, without other evidence, that the intention is to ask for an appeal on the basis that SCOX lacked competent representation.

I also don't think that argument would fly - are they not paying (or at least promising) large piles of cash to their lawyers?? To do that, and then turn around and claim that they picked incompetent representation will certainly piss off any investors they have left. It wouldn't make them any friends on Wall Street either.

IANAL either, but I'd think that if they try to base an appeal on lack of competent representation they'll have a hard time finding anyone better than they already have, because their litigation warchest will be severely depleted by the current action. And IBM will still have the same well-oiled legal machine all pumped up and ready to grind their sorry asses into smaller chunks.

Obligatory

[mehaiku]

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.

Objective viewpoint

[Monsieur le Nerd]

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 /.

Re:Objective viewpoint

[nwbvt]

While its certainly true that /. users generally have a known point of view when it comes to the SCO case, would it really be that hard for the lead stories to be somewhat objective and leave the opinions to the comment section?

Re:Objective viewpoint

[Monsieur le Nerd]

Almost without exception, the lead stories have links. These links are mostly to Groklaw, who themselves give links to all the relevant info. Thus, the info is there. As for the tone, I hardly think you could expect *any* publication to be without bias. For example, Forbes.com always reports in favour of Microsoft and SCO - no-one seems to be doing anything about that. What is worse, is that they don't even link data that could be useful to dissenters! Furthermore, ./ is more about the comments. This is what makes it so different to (say) Forbes - you are entitled to post an opinion, and correct what you consider to be distorted facts. Anyone who only reads the head stories in /., is not really a /. reader, n'est-ce pas? So, is Slashdot opinionated? Yeah, perhaps. Biased? No, I don't really think you have a case here.

Re:Objective viewpoint

[geomon]

I can't speak for the other contributor, but I tried to look objectively at the financial reporting and provide a summary of what was being written in advance of SCOs conference call. What I wrote is as objective as one can be. SCO was reporting financial details and the information wasn't necessarily going to be great for investors. I also linked to a story about SCO's settlement with Baystar and how I thought that would be viewed as 'positive' for SCO.

No event in the history of human affairs can be strictly viewed objectively. No matter how hard someone tries, it is impossible to convey what is seen without taking in to account the filters that recorded the event.

Re:Objective viewpoint

[nwbvt]

While I did not research SCO's financial state so I cannot tell whether or not your summary is in fact objective (though I think it unlikely that it was biased), what I believe the origional poster was questioning was the second half concerning the validity of SCO's legal case. But that wasn't based on anything the other contributor said, that was more to do with /.'s reputation to insert bias in its articles. Anything to do with SCO, Microsoft, the RIAA, the MPAA, the Bush administration, etc. will almost certainly be negative. Thus we are forced to treat any article mentioning any of the above parties with a grain of salt. And I personally doubt many in the editing room are trying hard to do otherwise.

SCO execs made money regardless

[holy_smoke]

"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.

What, or who...

[Skiron]

... changes the wind? The courts?

Re:What, or who...

[black mariah]

Their stock price.

Re:What, or who...

[ClosedSource]

What I meant was that if IBM determines that an OSS product like Linux undermines their business rather than supports it (by helping to sell expensive hardware and software products), they'll stop promoting it.

Unix is a commodity OS that IBM has offered for a long time, it costs them very little to switch to the politically-correct version (i.e. Linux).

I would invest

[Anonymous Coward]

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.

Dividends??? Where?!?!

[tstoneman]

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?

patent hell.

[KingPunk]

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

Re:Wait a few hours?

[geomon]

Good point. I thought about that as well, and normally I would agree with you, but there have been several people who have been watching SCO's financials as an indicator of how much longer we have to put up with this charade.

Conference call is late

[ThinkTiM]

It was supposed to start at 5pm EST - it's now 5:16 and we're still waiting.

SCO needs a change of focus

[Limburgher]

Perhaps now they'll re-structure and focus one the silver bullet of any business's success:

Actually putting out a quality product.

results are in and it's not good

[abrotman]

results

Showdown - Sept. 15th.

[Xenographic]

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.

Earnings report has been released

[Anonymous Coward]

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.

Re:Earnings report has been released

[geomon]

Strangely enough, the stock is up 6 cents in after hours trading.

Perhaps investors expected greater losses.

Does anyone see a TLC episode? Like Enron!

[WarlockD]

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!

The ironing is delicious...

[Idarubicin]

From IBM's memorandum:

Even as SCO describes the case--by directly quoting (without attribution) a Westlaw headnote--...

Hm. SCO's respect for the fruits of others' intellectual labour continues undiminished. Now they're plagiarising their lawsuit?

Re:The ironing is delicious...

[Flower]

It's worse actually. As was pointed out at Groklaw by AllParadox, who actually practiced law instead of playing one on /. :

A headnote is a legal analysis by someone who is probably not connected to the case. .... Headnotes can perfectly contradict the actual findings of the court. <emphasis mine>

And, iirc, SCO did nearly that. They quoted the headnote and got the caselaw wrong. AllParadox put it better than I ever could. This was definitely a "Stupid newbie stunt"

Aww come on, we can do better...

[SlowMovingTarget]

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.

Re:Aww come on, we can do better...

[mehaiku]

Of course we can do better:

Darl has but one innovation;
Ill-conceived litigation
It's a shame he cant find
Work made for his kind
But who'd pay him for masturbation?

Re:Aww come on, we can do better...

[SlowMovingTarget]

[grin] That's it...

Quoth Darl, "They've infringed on our stuff!"
Opening lawsuits aplenty with fluff,
SCO borrowed some money,
From BayStar, how funny!
Who sued SCO stating, "'Not evil enough!'"

Re:Aww come on, we can do better...

[InfiniteWisdom]

Well done! Welcome to my friends list :)

Re:Aww come on, we can do better...

[FrankDrebin]

A heat-packing FUD-man, McBride,
"Linus stole our UNIX" decried,
But Big Blue's hired sharks,
Disproved those remarks,
With a subtle "Fuck You" implied.

Yes. THAT Dr. Kernighan. (n/t)

[MenTaLguY]

Lameness filter go away, come again another day.

Re:Yes. THAT Dr. Kernighan. (n/t)

[Fenris Ulf]

That's something like being in a religious argument and having Moses show up to argue your point, isn't it?

Re:Yes. THAT Dr. Kernighan. (n/t)

[k98sven]

No text.. and here I go totally offtopic?
Are you the same MenTaLguY as the Inkscape/Sodipodi guy?

It's a nice piece of software. My regards.

Re:Yes. THAT Dr. Kernighan. (n/t)

[MenTaLguY]

Yes, I am.

And thank you, I shall give your regards to the other developers. ^_^

Re:YOU'RE!

[RsG]

The parent post has been broght to you by the Grammer Nazi Association of America (GNAA).

Are you Pedantic?
Are you an Asshole?
Are you a Pendatic Asshole?

Then you should join the GNAA (Grammer Nazi Association of America)!

Re:Lawyer fees

[DotDotSlasher]

15 million in 5 quarters? At least someone is making money off of SCO.

From the conference call: And SCO is now allocating $31M for the future of their lawsuit. That means they're investing $31M + the $15M already spent. The attorneys have agreed to accept this $31M amount, plus 33% of any settlement (up from 25%), and that's the max that SCO will have to play for their legal counsel. Supposedly the law firms will then by motivated by the final settlement. That leaves $12 for operations.
SCO also say that the lawsuits are progressing as expected, and they look forward to a jury trial in ~14 months.
They were happy to talk about their better Unix revenue, but people only want to ask questions about the lawsuit.

conference call excerpts

[mcguyver]

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.

Some favorite lines

[UnknowingFool]

Most of the memo is legalese but here are a few of my favorite lines:

SCO's opposition to IBM's summary judgment motion is nothing more than a smokescreen to cover the shortcomings of its claims and yet another attempt by SCO to delay (perhaps forever) the resolution of this litigation.
...
Indeed, SCO appears to have lost track of the representations it has made to avoid review of its assertions of copyright infringement in the several courts in which it is litigating.
...
SCO attempts in effect to portray IBM's Tenth Counterclaim -- which seeks a declaration that IBM's Linux activities do not infringe SCO's alleged copyrights -- as a surprise to SCO. SCO, however, has been claiming publicly for more than a year that anyone's -- which obviously includes IBM's -- use of Linux infringes SCO's alleged copyrights.
...
As reviewed here, SCO appears willing to adopt, in court and in the media, whatever position is most expedient under the circumstances, without regard either to consistency or the truth. SCO has spun, and continues to spin, a tangled web of inconsistencies to avoid resolution of the claims it has made against IBM's and others' use of the Linux kernel. SCO's opposition to IBM's motion is just more of the same gamesmanship -- intended solely to procure further delay so that SCO might profit from the fear, uncertainty and doubt that it has fostered regarding Linux.

While this just a motion, IBM seems confident and is calling it like it sees it. Most of /. would agree.

Yes, but...

[rd_syringe]

Yes, but they're a LINUX company now! You hear that? LINUX!

Hah! So much for the famewhore

[bolix]

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.

Re:Hah! So much for the famewhore

[Animats]

Then again, we've been waiting 4 years for Enron to settle...

That's been grinding along. Ben Glisan (former Enron treasurer) is in prison. (Inmate #20293-179, Bastrop Federal Correctional Institution). He gave up the Fastows. Lea Fastow is in prison. (Inmate # 20290-179, Houston Federal Detention Center). Andrew Fastow (former Enron CFO) pled guilty and is going to jail soon. He gave up Skilling and Lay (former Enron CEOs). They've been indicted and are out on bail.

It's just like taking down an organized crime operation. Which Enron was. One step at a time, until the guy at the top goes down.

half a million+ in "SCOSource Licensing Revenue"??

[Dr.Dubious DDQ]

From that link: "[...]SCOsource licensing revenue did increase by $667,000 from the prior quarter ended April 30, 2004."

Who the heck pumped $678,000 into this effectively fraudulent scheme of theirs?....

Hits from what?

[runderwo]

SCO's Finances, Legal Case Take Hits

How many hits? Was it good stuff? Judging from recent SCO history, I'd probably wager that it is...

Re:half a million+ in "SCOSource Licensing Revenue

[oogoliegoogolie]

SCO did. They didn't want to take the chance that they might sue themselves.

Favorite Quote

[kjots]

> 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!

SCOX Conference Call Audio

[Mansing]

A recording of the conference call is available here:

http://www.users.cloud9.net/~terrapn/

Don't forget the GPL

[scruffyMark]

In one scenario - the judge sides with IBM that by refuting the GPL, SCO lost their right to distribute IBM's copyrighted code under it, so SCO are the ones violating copyright - their UNIX branch could be basically hosed very soon anyway.

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.

Re:Don't forget the GPL

[Ohreally_factor]

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)

Actually, this will hinder them from claiming any sort of damages, in the very unlikely case that they prevail. And if there are no damages, then there really isn't much of a case. I wonder if SCOX shareholders can use this if they ever sue Darl.

Re:half a million+ in "SCOSource Licensing Revenue

[dmaxwell]

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.

Re:Lawyer fees

[scruffyMark]

That leaves $12 for operations.

I guess for clarity we should specify:
$43M cash - $31M legal fees - $11,999,988 legal awards against them = $12 for operations

BEST LINE EVAR!

[argent]

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!

"bouncing the ball around the circle..."

[LarryWest42]

• Saying you can't judge the case based on filings is like saying you can't judge the likely outcome of a football match by looking at the players, where one team is a bunch of kids in nappies and the other are bouncing the ball around the circle with their heads.

Heh. And that yields an even better image with American football.

Here's a link to the conference call audio...

[g_adams27]

For those who want to listen to the conference call recording, here it is...

RealPlayer:
http://play.rbn.com/?url=shareholder/shareholder/d emand/040831cald.ra&proto=rtsp

Windows Media Player:
http://play.rbn.com/play.asx?url=shareholder/share holder/wmdemand/040831cald.asf&proto=mms?mswmext=. asx

SCO doesn't have investors

[EmbeddedJanitor]

True investors look carefully at their investments and do "due diligence". Those that bought up SCO stock were just greedy scavengers that smelt IBM etc blood and jumped in. At best they were gamblers, not investors.

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.

Remember, they're not trying to make a legal case.

[EmbeddedJanitor]

The whole SCO fiasco has been a pump and dump. The purpose of the IP filings was to have something to wave around at press conferences to boulster stock prices. These do not need to be legally sound to achieve this.

They're not trying to build a sustainable business so they don't need development staff and managers etc either.

Falsifying evidence?

[walterbyrd]

>>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?

Re:Falsifying evidence?

[nzkoz]

It's not falsifying evidence, just spinning it. All the code samples he took were from linux.

He just interpreted them .... differently.

Re:Falsifying evidence?

[k98sven]

It doesn't really matter that all the code samples came from Linux.

Any sufficiently large book can be turned into a verbatim copy of any other book. If you do that and present it to the court, under oath, as evidence of copyright infringement..

I have a hard time seeing how that would not be falsification of evidence or false testimony.

Re:Lawyer fees

[dbIII]

15 million in 5 quarters?

Once again SCO show they have no grasp of math. I make it $1.25 in five quarters - which is about what the company will be worth soon.

However, Darl and his brother will probably walk off with more than 15 million.

Best Paragraph Nominee

[theonetruekeebler]

Here's my vote:

"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?

Re:Best Paragraph Nominee

[edgedmurasame]

Well, then there'll be people figuring out how to get 10,000+ people on the case, just to shut them up in 2.5 years

New Legal Theory

[hhawk]

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... ;)

Re:New Legal Theory

[superpulpsicle]

The article actually hints at the fact that there is such a thing as "SCO stock holders". LMAO that's too funny. Why the hell are people investing in lawyers.

Great analogy

[Halcyon-X]

...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.

What a great analogy. That's exactly how I feel about watching people fall out of trees!

Re:Dividends??? Where?!?!

[BCW2]

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.

Re:Analysis at LamLaw

[bigsteve@dstc]

At the end of the LamLaw article, it says this:

"It is strange because the legal system always gets credit for a slow, burdensome and painful process. And it is that. But there is a real effort as well to finalize whatever issues can be resolved. The court does have that as an objective. You just have to do it in the right way or it boils over again anyway. Sort of like the USL v BSD case. Everyone thought that was put into the deep freeze. Well it may be that the Unix copyrights will again be placed into the deep freeze. But the power can go out and the whole thing thaws again down the way. (Of course Novell may add a padlock to that freezer and invest in an UPS unit as well. But a freeze is not the same treatment as cremation. And you can not cremate Unix anymore than you can cremate Linux.)"

This is an interesting point. But I think there is a way that Novell could resolve the UNIX copyright issue once and for all. They could release the UNIX source into the public domain. Once that has been (properly) done, there is no way the Novell or possible "successors in interest" could reverse it.

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.

Re:Remember, they're not trying to make a legal ca

[Eggplant62]

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.

Evidence

[MarkusQ]

Evidence? Proof?

I've seen a lot of people say that as if it were accepted fact, but I don't recall ever seeing any proof.

SCO license purchases don't count.

I realise that Microsoft can't be unhappy about SCO's actions, but surely they have more productive things they could spend money on than funding a competitor's doomed legal adventures...

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

Re:Evidence

[Ohreally_factor]

I agree that the appearance is so strong as to leave little doubt, but I also believe that one should be careful how one phrases it, seeking precision.

Maybe I'm being nit-picky, but I'd write "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"

as

To the extent that there is any evidence about the sources of SCO's funding, in each case we clearly see Microsoft's involvement.

Also, I think that tracing the involvement should be enough. No need to produce the canceled checks, which probably don't exist anyway.

Hopefully, IBM will pursue this and reveal any connections between MS and Canopy. Canopy owns the majority stake in SCO, is most likely behind the pump and dump scheme and other shenanigans (Altus?) What is there connection to MS?

Oh yes, I heard that one before....

[jotaeleemeese]

"I was following orders"... or something like that I can't remember at the moment.

Comment removed

[account_deleted]

Comment removed based on user account deletion

SCO doesnt have any IP

[SenseiLeNoir]

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...

Re:SCO doesnt have any IP

[hesiod]

> The whole SCO IP thing is a Brookland Bridge sale...

Do you mean Brooklyn Bridge?

Comparision of SCO and IBM "experts"

[SenseiLeNoir]

[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

There are at least two kinds of FUD..

[Kjella]

...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

Hey, watch those metrics!

[Vintermann]

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!)

Re:Analysis at LamLaw

[SenseiLeNoir]

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)

Re:Lawyer fees

[rlafflick]

Has anybody wondered what the bonus payouts would be to the IBM lawyes when they finally kill of SCO?

... but what about SUN?

[jjohn_h]

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?

Re:Analysis at LamLaw

[bigsteve@dstc]

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.

That is true. (And I didn't realise that other companies had residual copyright claims on bits of UNIX.) However, given the SCO attack, you'd think that both Novell and the residual copyright holders would be keen to reconsider releasing UNIX now.

Re:Analysis at LamLaw

[SenseiLeNoir]

it woudl be great if that happend, but I would not hold my breath.....

Damn...

[Xenographic]

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...