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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 again, it's another journalist who repeat like a parrot SCO' press release without digging a little bit... annoying.
"Tell us what we want to know, but we need more time to find what we've been claiming for months."
Truth is stranger than fiction.
--Coming up with something clever... please wait...
"It's the end of the world as we know it, and I feel fine!"
"No beer until you finish your tequila!" -Leela's Dad
Their strategy is simple, delay, delay, delay until IBM goes bankrupt.
Dvorak on Doomtech
So they're asking IBM to open the source that was stolen to SCO so they can investigate it?
I thought the thing they were investigating in the first place was source that was already opened that SCO found.
Am I missing something?
SCO is just digging, I wish they would either strike, or leave us the hell alone. Slander is what it's boiling down to. They need to get more sales and money and all they can do is talk shit about linux until someone figures out they have no case..... but the lose of sales from their bullshit will hurt other companies and they deserve to be sued back.... Anyone care to join in with Big Blue?
Sometimes the majority just means all the morons are on the same side.
The real reason for the delay is that the lawyers have their next scheduled stock sale next week!
I am not a lawyer, and I am seeing what amounts to little more than:
IBM: We want summary judgment now.
SCO: No, you can't. You haven't given us [INSERT NAME OF RANDOM STUFF].
IBM: But that stuff is irrelevant. Besides, you haven't given us any proof. We want judgment now.
SCO: No, you can't. You haven't given us [INSERT NAME OF MORE RANDOM STUFF].
(ad infinitum)
What can IBM do legally to stop the cycle and for the judge to say, "Enough!"?
here is the yahoo quote, as always, they're going down.
Marge, get me your address book, 4 beers, and my conversation hat.
Watching the SCO saga is like watching a completely preventable train wreck in the slowest possible motion - kind of like watching snakegrass grow, or watching paint on the ugliest painting ever painted dry. Mondrian's skidmarks after a night of taxidancing. Picasso's Kleenex. Something like that.
We should start putting up options on when this idiotic extravaganza will come to a final end.
2005?
2006?
2007?
2438?
I no longer feel sorry for any one left treading water at SCO. They've had PLENTY of time to jump ship and flee the scene. When the slowly grinding wheel of justice makes its dirty, uuuh, duty, clean, nnnuuh, clear, these trusswrappers will be persecuted to the fullest extent of the law, and they will all have to walk the plank.
"I was Darl McBride, CEO at SCO for ages. Now I ask customers 'you want fries with that?' "
Hope and Pray.
RS
Shoes for Industry. Shoes for the Dead.
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. =====
..but we need something to gossip about on /.
THE SCENE: A COURTROOM. IT IS FILLED WITH MANY TENSE LAWYERS IN EXPENSIVE SUITS, HALF OF THEM ARE BLUE.
SCO SHILL: Your honor, most wise, humble and double wicked cool dud-
JUDGE: Get on with it.
SCO SHILL: *Ahem* In accordance with the 1887 ruling of the federal government vs. Keanu Reves, we would like you to summarily find for the plaintiff, SCO, and award damages to the tune of-
JUDGE: I'm not familiar with that ruling. Keanu Reves? 1887? If this is another delaying tactic counselor...
SCO SHILL: We request a three month period to shake down more, er, find um, evidence!
JUDGE: Denied. You haven't given a reason that there might be new evidenc introduced.
SCO SHILL: WE REQUEST A RECESS!
JUDGE: Denied. You just got back from one.
SCO SHILL: WE REQUEST AN EMERGENCY BATHROOM BREAK!
KEANU: (from the back of the courtroom) Woah.
HA! I just wasted some of your bandwidth with a frivolous sig!
I know you stole my ring. If you let me in your house, to look around, I am sure I will find my ring. Stop hiding my ring, I know you have it.
It is my precious......
This is insane. SCO wants to go on a fishing trip, looking for something they claim IBM stole, yet have no proof of. If they don't have proof, what are they doing suing IBM other than to be annoying. Are we (collective) just supposed to believe that they (SCO) are telling us the truth, BLINDLY?
What a crock. The judge should simply dismiss the case at this point, with prejudice. I can think of at least 15 different reasons to do so. Namely every time SCO gets themselves in a pickle (technical term), they change the subject. At this point, they are suing for infringement that they don't have ANY knowledge of.
Incredible. Insane. ENOUGH already.
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
Can you believe it's been 18 months since this started? SCO hasn't shown us one unrefutable piece of evidence in 18 months...
When you get to hell -- tell 'em Itchy sent ya!
In the media, all SCO go on about is copyright and IP. But copyright only makes up part of this case. IBM is suing SCO for copyright infringement over it's code in Linux, that SCO is breaking the GPL when distributing, and also selling a licence for. IBM are also asking the judge to rule that it does not break any of SCO's supposodly copyrighted code by putting it's own code in Linux. SCO cannot, and have not shown, or tried to show, in court, any copyright infringement by IBM.
But.... As SCO tries to obfuscate what it going on, they're arguing contract when the case is copyright, and copyright when the case is contract - pure misdirection.
SCO says that the AT&T contract is unambigous, and IBM says that the AT&T contract is unambiguous, but they both interperet it quite differently. Even when SCO try to bring up witnesses from the BSDi v USL case, to contradict what IBM is now getting those same witnesses to say, they fail to come up with any meaningful contradictions, and fail to note that the black and white of the contract, side letter, Echo clarification and ammendments say, which is that IBM owns what is IBM's and AT&T own what is AT&T's. IBM cannot release code that is part of the AT&T Unix source code, but IBM can release code that is there's that they also put into Unix seperately. The facts of this case, even without the witnesses say IBM is right.
SCO still haven't got Novell off their backs, and their contract with Novell plainly doesn't transfer copyrights to SCO, and SCO cannot even find the paperwork to prove that they're successor in interest to that contract, and hence the AT&T contract.
The current deluge of paperwork from SCO is an attempt to befuddle and confuse, obfuscate and delay the judicial process.
-- oldthinkers unbellyfeel ingsoc
IBM's motion depended on the claim that "AT&T didn't mean what SCO says they meant in their derivative works clause". In support of that, IBM presented two witnesses from AT&T who said that AT&T had intended for the clause to be narrowly interpreted. Unfortunately for IBM, SCO had access to the original BSD depositions, where these same two officials testified to exactly the opposite "fact".
Oops. There goes that argument -- and, very probably, any chance for a summary judgement. The net effect of the contradictory depositions will be to establish beyond doubt or cavil that there is a clear uncertainty about the meaning of the contract, which allows SCO to say "If the clause is relevant to the case, then we must determine what the clause meant. People who signed the document don't even know what it meant, and thought one thing once, and another thing later. Summary judgement is not possible."
January 12, 2004 SCO hands infringing code to IBM
;-)
Did I miss something?
Yes, now they want it back!
RelevantElephants: A Somatic WebComic...
SCO was misquoted... the actual quote was... "Our evidence against Linux doesn't exist... oh shit... did I say that out loud... spin doctor that, wouldya?"
Stay of Execution? Come on, can't we just kill them now!?
"[SCO's]Lawyers point to...IBM's failure to produce information that back up SCO's breach of contract and copyright infringement claims."
The only thing SCO has that isn't going to be executed is their code...
CAn'T CompreHend SARcaSm?
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.
This shows again how royally screwed up our legal system is. We need tort reform because in the end we'll all wind up paying for this stupidity by the courts. SCO has gone after multiple parties in multiple districts, wasting countless hours in our courts and a ton of money on the accused. This ultimately costs us all.
Whether it's medical malpractice cases, bogus lawsuits or SCO, this will all cost us more in everything we buy. It does now, and it will only get worse unless we put a stop to this legal self feeding excercise.
Harrison's Postulate - "For every action there is an equal and opposite criticism"
I am reminded of a quote from Londo Mollari of Babylon 5:
"Only a fool fights a war on two fronts. Only the heir to the kingdom of fools fights a war on twelve fronts!"
My rights don't need management.
The internetnews article says "Originally scheduled for Tuesday, the hearing was pushed back to Oct. 19", but that was just the discovery hearing before the Magistrate Judge.
The important hearing, on IBM's motion for summary judgment on its tenth counterclaim, is still on for tomorrow, which you can verify at the court's website, both Judge Kimball's schedule and the case history (item 268).
If IBM's motion is granted, Judge Kimball will issue a declaratory judgment that IBM's copying of Linux does not infringe any SCO copyright. That would imply that anyone else copying any of the Linux versions IBM uses is not infringing any SCO copyrights, either.
The SCO-IBM disputes over contracts would remain, but the rest of the world needn't concern itself about those.
You can find the briefing papers on the motion here
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
So SCO accuses IBM of copying SCO's source code into Linux. Then delays claiming that IBM hasn't given the source code over for examination. This is what happened, isn't it? SCO obviously already has their own code. The Linux code is open source and freely available all over the net. So how can SCO credibly make such a claim? Why, through lawyers of course. God! We are so in need of tort reform.
Old news for GROKLAW readers...
/. should not cover it as well. Do you expect to find a major story in only one newspaper?
/. and it's getting rather old to watch every story about SCO on /. have someone scream, "This is old new! Groklaw had it first!"
Now don't get me wrong, Groklaw is a good site for the most up to date information on all of this but the format that PJ put it in, her editorializing not withstanding, is very legalease.
And that also is just fine. There are geek lawyers out there who want to know the straight dope on what's going on with SCO, the IANAL geeks who know enough to read it without getting splitting headaches after a while, and those of us like me to still go there and read but soon develop splitting headaches after a while.
I don't expect a lawyers to understand C and don't think that just beacuse geeks are considered to be smart that they should automaticly have to understand legalease. It's unfair to expect just because Groklaw exists that
Groklaw has their niche as does
Really, I know what I'm doing...Ohhhh, look at the shiny buttons!
We know this, but more importantly, they know this too. This has always been the expected outcome.
I don't think this is true.
In my opinion, here's how it went down:
In the beginning, it was just a ploy to get bought out by IBM. When IBM didn't bite, SCO tried to turn up the heat by saying some outrageous things and by threatening to cancel IBM's UNIX license. When IBM still didn't bite, SCO decided to turn up the heat some more by filing a lawsuit. IBM is a very risk-averse and PR-sensitive company and it was somewhat reasonable for SCO to assume that IBM would try hard to stay out of court. IBM, however, learned long ago that if you cave to every threat, the leeches will suck you dry, so IBM hunkered down and prepared for battle.
Now, if SCO's management were really smart, they would have realized somewhere along the line that it wasn't going to work and backed off. But some other things happened during this series of SCO-initiated escalations. First, SCO's stock price took a massive jump. In fact, Darl and company quickly realized that the more outrageous the claims they made the bigger the spike they could provoke. Now they knew, and had planned on, the stock price going up and had already set up their timed, periodic sell orders, but I think they got a much bigger boost than they had ever dreamed, and I think it made them a little (more) nuts and (more) stupid.
Another thing that happened was the cash from Sun and Microsoft, which made SCO realize that perhaps there was another way to squeeze money out of this furor they were stirring up. The Baystar and RBC investments cemented it. They also found that threatening to charge for Linux licenses gave their stock price a nice bump and they wondered if, just maybe, people would really pay. They knew that given the herd mentality of big business, if they could scare a few into paying, lots would. And LOTS of big companies use Linux. They almost made a severe mistake here, BTW, when they began talking about sending out invoices. Whether it was the response from the community or their own attorneys that did it, they managed to figure out that sending invoices might constitute mail fraud, and that's a Bad Thing.
I think that was the point of no return. In order to create the frightened stampede of Linux licensees that they hoped for, they had to threaten so hard and so loud that they essentially made backing off impossible.
But that's not all. I think that fairly early on, they did some cursory examination of Unix System V and Linux and found some snippets of duplicate code. "Aha!", they said, "This smoke that we've been blowing actually has some fire underneath!" Of course, some of the code was BSD, some was Unix System III, and the rest was trivial errors made by SGI, quickly corrected. But I don't think they realized any of that until the community pointed it out to them. Even after that, I think they really believed that there *had* to be infringement in there. These guys are not programmers and they didn't understand that it is, in fact, much easier to replicate existing functionality than to build something new, so it shouldn't surprise anyone that Linus et al were able to bring Linux from nothing to a powerful kernel in a little over a decade. They also didn't understand just how much of a leg up the GNU tools gave the Linux developers.
On top of the suspicion that there actually was copied code, if they could just find it, I think they they had read too much of the secret USL vs BSDi documents and understood too little of them. In that court case, AT&T was arguing the same sorts of expansive theories that SCO has been arguing, claiming that anyone who brushed up against Unix was mentally "contaminated" for life. What they missed were two fundamental points: First, that USL was arguing trade secret, copyright, trademark and copyright all together, unlike SCO, who has tried to argue everything, but has gotten whittled down to purely contractual arguments and second
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Darl could not sink any lower
He's tops as a bullshit thrower
But Darl showed his ass
Which is now only grass
And IBM is the lawnmower.
Many Linux geeks including myself shorted the SCO stock and made large amounts of money. In my opinion that is another good thing that came out of this fiaSCO.
Thanks to SCO I have a brand new SUV and some really really nice computer equipment. And I am not even done spending a quarter of the proceeds from my successful SCO short transanction. I would actually like to thank Darl and the gang for the money. I am just not sure what the best way of doing this would be.
Maybe I'll send them a card and thank them for lying through their teeth and pumping up a worthless stock. I am sure they'll appreciate it.