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SCO Files for Stay of Execution
An anonymous reader writes "SCO has filed for another delay in the case against IBM. The article reports that 'According to filings in the case, SCO is looking to buy time until the court can hear its arguments compelling IBM to release more information. SCO lawyers argue the information -- namely source code they claim was lifted from AIX and Dynix to bolster the open source Linux kernel -- is necessary in getting a successful ruling.'"
obligatory groklaw coverage
this line is just filler.
...and I'll say it again.
SCO has zero chance of winning. We know this, but more importantly, they know this too. This has always been the expected outcome. Thankfully the link between SCO and Microsoft has been established, admitted to, and documented, otherwise people like me would still be getting called "tinfoil hat idiots".
As long as this case exists, so does fear, uncertainty, and doubt towards linux. The longer they can stretch it out before a ruling, the better.
"The market alone cannot provide sufficient constraints on corporation's penchant to cause harm." -- Joel Bakan
here is the yahoo quote, as always, they're going down.
Marge, get me your address book, 4 beers, and my conversation hat.
The letters are fun reading and provide a good example on how to make opposing counsel look stupid. Both sides have accused the other of dragging their feet. So this time -- when SCO asks for a delay -- IBM says okay, as long as you don't want the delay in order to just ask for another delay. SCO refuses, basically admitting that this is exactly what they planned to do.
===== Murphy's Law is recursive. =====
Only thing is that the BSD case was about trade-secrets and v32, which SCO has already admitted isn't a factor in _this_ case respectively released for the world to see under an open license.
So.. there's only conflict in this testimony if you're easily duped.
SCO has always had the SysV code they claim was stolen and the Linux code they say it was dropped into, so IBM says that should be sufficient to prove that there is or is not 'infringing code in Linux'.
Rather than legally provide any of this infringing code that their 'experts' allegedly found 'mountains of', SCO keeps changing the story.
Currently, the line is that IBMs contract prevented IBM from revealing not only any SysV code, but any IBM code that was shipped together with SysV code, or any IBM code that somehow derived from "UNIX methods and concepts".
To prove this last point, they want IBM to provide the complete revision history of every file in AIX, including programmer notes, so that they can read through it all and try to find places where programmers writing IBM code were 'tainted' with SysV knowledge. IBM says that this theory is ridiculous and that they should not have to go through this burdensome procedure because it's irrelevant. SCO has SysV code, code from several releases of AIX and Dynix, and Linux code, and therefore has everything they would possibly need to prove infringement under standard copyright laws.
In any case, any code that one side provides to the other would be under seal, not availible to the public, and certainly not open sourced.
Actually re-read the excerts. They are very very careful about their wording in the BSD depositions to stay away from stating original works that a licensee adds to their "UNIX", but instead that anything that was derived from SysV.
I'm sure it's because back then they had a pretty good idea that the virii derivative theory wasn't going to fly and it didn't. In fact it was struck down pretty hard, didn't work then doesn't work now.
-- Ed Bugg --You have freedom of choice, but not of consequences.--
So many documents are showing up in this frantic motion practice SCO and IBM are embroiled in, it's hard to even read them all, let alone write about them. But I think we may summarize them like this: SCO would like more time before it has to walk the plank.
And an old AT&T attorney, Martin Pfeffer, who claims no direct involvement with the IBM contract that I can see in a quick reading of his statement, says some things that don't apply to IBM at all.
I gather SCO would like to bury the judges in documents so they will be forced to grant delays just to be able to read them all in time. If it was confident at all that it could prevail on any of IBM's motions, I believe none of this would be happening. They may well get some delay from this strategic blizzard of paper, unless it annoys the judge as much as it does me, but it won't change the eventual outcome at all, from anything I've seen so far, including the Pfeffer testimony. They're like a condemned man, asking at the last minute for a dish that takes three days to prepare as his last meal. Even if his request is granted, he's still going to die. So, if they do get a delay, don't be amazed. They've certainly worked hard enough for one, and the judge may not know them as well as we do. A lot depends on understanding the tech. If the judge gets it, it helps to see through what would other wise sound plausible.
It's kind of like at the beginning. Remember how the media would print every bit of SCO's outrageous claims, as if they were received from heaven on stone? We knew what SCO was saying about Linux would not prove true, didn't we? And how did we know? Because some of us understood the tech and we all understood the GPL. Do you see the media still eating up SCO's every claim? No. They got educated. It's the same in the court cases. It may take time, and it can prove frustrating if you like instant results. But it is an inexorable process, and it will happen with the judges, just as it did with the journalists. And they can take their time, I reckon, getting up to speed, what with all the delays SCO keeps asking for. But judges are not stupid. They will see the SCO pattern, if they don't already. How many delays can SCO ask for before they see what is happening? I don't know. But they will see it eventually, without a doubt. It's also true that many judges tend to bend over backward to be fair to the side they know is going to lose. Really. So, if they get more delay, they get more delay, but the process is moving forward like a tank.
It's all SCO here, except for IBM's normal reply memorandum on the motion to strike and one request -- to be allowed to file a response to SCO's Supplemental Memorandum re: Discovery and to Continue Hearing. As you recall, Judge Wells told them that after SCO's filed this document, anything further could only be brought up at the hearing. However, it seems SCO took advantage of that to raise new issues, and IBM asks for time to get declarations in response.
Here they all are. Read them and weep. I feel like crying just looking at them all, thinking about transcribing and doing all this HTML. If you can help, please do, leaving a comment on which one you are working on, so we don't overlap:
#272 - SCO's ex parte motion for leave to file overlength memorandum re: SCO's Opposition to IBM's Motion to Strike Materials
#273 - SCO's Supplemental Declaration of Christopher Sontag in Support of SCO's Oppositon to IBM's Motion to Strike
#274 - SCO's Supplemental Declaration of Sandeep Gupta re SCO's Opposition to IBM's Motion to Strike
#275 - SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike
#276 - IBM's [redacted] Reply to response to [212] Motion to Strike the 7/12/2004 Declaration of Christopher Sontag
#277 - SCO's Motion to extend time to file response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims and IBM's Motion for Partial Summary Judgment on it's Counterclaim for Copy
Actually, there's no evidence that AutoZone did what SCO claims. SCO claim that AutoZone did this has been taken by some in the media as fact. Those who actually worked on the SCO -> Linux conversion state that the claim is ridiculous and that they used no such code.
Javascript + Nintendo DSi = DSiCade
Both wrong...
Hawkins: I've got it! I've got it! The pellet with the poison's in the vessel with the pestle; the chalice from the palace has the brew that is true! Right?
Griselda: Right. But there's been a change: they broke the chalice from the palace!
Hawkins: They broke the chalice from the palace?
Griselda: And replaced it with a flagon.
Hawkins: A flagon...?
Griselda: With the figure of a dragon.
Hawkins: Flagon with a dragon.
Griselda: Right.
Hawkins: But did you put the pellet with the poison in the vessel with the pestle?
Griselda: No!!! The pellet with the poison's in the flagon with the dragon! The vessel with the pestle has the brew that is true!
Hawkins: The pellet with the poison's in the flagon with the dragon; the vessel with the pestle has the brew that is true.
Griselda: Just remember that.
If you stop paying license fees on the code (annual payments, I'm guessing. License expires when licensing period expires), you no longer have permission to use the code. Ergo, you would be using the code without a license (expired), and SCO would have grounds to sue.
That's the theory, at least.
Taxpayer dollars? Eh? SCO is suing IBM, the state isn't involved at all except to provide the mediation via a judge and a courtroom, etc...
This sort of this is already budgeted in and doesn't cost any more money.
It would be a different story if it was the state of California vs. SCO...
-Mark
Dovie'andi se tovya sagain.
Except that the BSD case has nothing to do with that contract. The witness they grabbed was not involved with the contract, and hence, has no specific knowlegde of it.
IBM, on the other hand, grabbed every frickin' individual at AT&T involved with the contract. Just because SCO's witness might contradict them does not make it so...
Watch great movie opening scenes!
I think you are incorrect in your assumptions regarding medical malpractice. In fact states that have malpractice caps that are effective (ex. Texas) are still quite generous.
As a point of fact, the Texas law limits non-economic damages to $250,000. The key word there being "non-economic"... Basically that means that you total up everything that your resulting injury or illness is going to cost you for the rest of your entire life, and then add $250,000.
Now of course the counter argument would be "You accidently cut off my leg, and all I get is $250,000. How can you put a price on my leg"
The counter to that is: We payed for you to get a car specially outfitted so you could drive with one leg, we sent you to therapy for 2 years and taught you to cope, we put you through special training and hooked you up with a good employer who can cope with your disability, we retrofitted your entire house, paid for all your hospital bills, etc. etc. and then we gave you $250,000. That's basically saying "No, you're right, we can't really put a price on your lost leg, but we can do a bunch of things to mitigate the impact of your lost leg... Get you to the point where you can live happily without it... and then we'll give you $250,000."
I mean lets look at this another way. This "extra" amount is well over 5 times the average U.S. salary. That's a lot of money to the average Joe. And this is non-economic, so if you're injury causes you to not be able to work, then this $250,000 is on top of another award that pays for you to live out your years comfortably. You've been compensated... This is just free money.
Oops. There goes that argument -- and, very probably, any chance for a summary judgement.
Nope. Because SCO made a critical error. They stated the language of the contract was plain and unambiguous. Which IBM also stated. This means the judge can ignore the depositions, and just rule on what the plain and unambiguous language of the contract means.
Additionally, IBM also says that SCO's interpretation has ridiculous consequences that indicate that the license cannot mean what SCO says. And, they support it with case law that says if an interpretation of a contract leads to ridiculous consequences that interpretation cannot be valid. (Yes, I can't remember the exact wording.)
Basically, those witnesses were just a tiny part of IBM's argument for PSJ. IBM presented at least 4 or 5 legal arguments for why SCO's interpretation cannot be correct, notwithstanding the testimony of every individual involved in signing the licensing agreement.
Finally, as others have said that testimony was about trade secrets in the USL vs BSD sealed case. Which means SCO could be in big trouble even bringing it up.
This journalist had personnally picked this press release, signed it and re-release it (publicize it would be more accurate).
Does he mention anywhere that IBM is keeping mum? Did he really try to get IBM' side?
And you said it, "This sort of journalism" as if you recognize that something smell bad in it.
(well, I tried to find it, but gave up)
Hell, I get buried on Groklaw because I do read all of the comments. I've found new respect for those managing a law firm. Just keeping track of everything in a case like SCO vs IBM has to be challenging.
You are being MICROattacked, from various angles, in a SOFT manner.
Judge Wells initially set a deadline of next February for the discovery phase of the suit to be complete. Until and unless that deadline would need to move, I think he'll let SCO continue to litigate anything and everything they want.
Just a note. Judge Wells is a she. Magistrate Judge Brooke Wells.
The only reason we have the rights we have is that people just like us died to gain those rights. -- Cheerio Boy
Correct me if I'm wrong, but the best you can make out of a short deal is to double your money? So that's a MASSIVE investment you made there!
For inquiring minds; the reason you can only double on a short is that technically you borrow and sell it.
You "pay" enough money to cover the shares to your broker, who keeps it as a security for the duration of the deal.
When you close the short deal, your broker buys enough new shares to cover your initial loan you get the difference between what they sold the shares (start of transaction) for and what they bought them for (end of transaction).
Thus if a stock is completely wiped out while you're shorting it, your gain will be;
Gain = (InitialPrice-FinalPrice)/InitialPrice = 100%
If the stock falls 50% you instead make;
Gain = (1-0.5)/1 = 50%
It's extremely risky to invest in short deals if you don't constantly keep on top of the investment. Say you shorted SCO way back when everyone thought it was going to die but instead it doubled or even trippled it's value, in that case you stand to loose far more than you initially invested.
Gain = (1-3)/1 = -200% (ouch)
But your broker will actually terminate part of or your entire short deal as you become unable to cover the re-purchase price.
Now if you change your mind and say it was a sell option that made you all that cash, your credibility might actually go up...
cheers,
m
Yes, you can only double your money as the price of the stock can't go below zero. I doubt I will ever short again.
For details on how much I made, you'll have to talk to my accountant or the IRS.