Judge Slams SCO's Lack of Evidence

An anonymous reader writes "News.com has reported that the federal judge overseeing the SCO Group's suit against IBM has voiced loud skepticism about SCO's case. "Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities," said U.S. District Judge Dale Kimball." Commentary available on Groklaw as well.

Comments

it is about time

[53cur!ty]

more judges should do this and perhaps people would think before they sue

Re:it is about time

[Karzz1]

....it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities.

I think that sums it all up.

Re:it is about time

[mwood]

Unfortunately that whooshing sound you hear is SCO jumping on this statement as evidence of bias so they can get the case moved or restarted or somehow stave off their inevitable failure a bit longer.

Much though I agree with the judge's sentiment, I wish he had saved it for his memoirs.

Re:it is about time

[Valar]

You know, judges, when making legal rulings, are _supposed_ to have bias on the side that is right. :)

Re:it is about time

[AlanS2002]

Like the judge who was presiding over MS v DOJ? Yeah, that served justice real well that time, by giving MS partial grounds to appeal the judges remedies.

Re:it is about time

[utlemming]

Sure they can try. But that would be an in the form of an appeal to the Federal Appeals Court. Which, btw, is not an easy task. You kinda of get an idea of Judge Kimball's attitudes when you read his legal briefs. And from the way he writes and thinks, he is a pretty tough judge. I would be intriqued to find out how many of his cases have been reversed on the appeals level. Also, when their is so much evidence to support the censor, I wouldn't worry. If there was a whole bunch of evidence, then unfair bias could be alleged, but not when SCO keeps saying there is a mountain when there isn't. Besides, this could actually be seen as an attempt to over SCO the chance to recover their case. By "warning" SCO to come up with something substantial on which the basis of their claims lie, the Court is allowing SCO the chance to actually get it "day in court." If SCO had been playing fair the entire time, SCO provided sufficient evidence and the evidence supported the claims, then I could see the case being moved or getting started up in another venue. But you have to remember, Utah is home to SCO. So finding a better home might be a little difficult.

Re:it is about time

[AlanS2002]

That should of been 'DOJ v MS' instead of 'MS v DOJ'

Re:it is about time

[Zemran]

Judges are there to earn a living as well. They do not want to shoot the golden goose so it should really be up to government to bring in the checks and balances that are needed. There is about as much chance of that happening as there is of the judges waking up en masse though.

Re:it is about time

[plover]

I have been wondering why Kimball hasn't granted summary judgement against SCO months ago. I think your comments give a good insight as to why he hasn't. If SCO is given every chance to present evidence and fails, there's not an appellate court in the federal system that would touch this one. He's giving them all the rope they need to hang themselves good and dead, and they're taking every inch.

By allowing this case to proceed to a final conclusion he's making sure it will be SCO's final resting place; the coffin will be nailed, screwed, glued and welded shut. IBM's countersuit for expenses will be swift and merciless.

Re:it is about time

[Scratch-O-Matic]

....it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities.


This is pretty much beside the point, but I read that statement carefully, and I'm not sure it actually means anything. How do you "create a disputed fact"? How do you create any fact, for that matter?

I understand and agree with the point, but the wording is weird. Maybe the judge was misquoted.

Re:it is about time

[Walter Wart]

Eh? Golden goose? Federal judges get a salary whether they hear one course or a thousand.

Judge Kimball for reasons that appear clear, wants to see this thing go to trial. My suspicion is that he wants to make sure SCO has been given every reasonable chance to present their evidence and have it heard. This would leave them little or nothing to appeal on if (when) things don't go their way. He doesn't want to get reversed and probably won't given how careful he's been so far.

Re:it is about time

[arkanes]

It's a legal concept. In the introductory stages of the trial, which is where the trial is now, the plaintiff has to show that there is a real disupte over the facts of the case. An undisputed fact is one which both sides accept to be true, and for purposes of the case is assumed to be. A disputed fact is one which is to be decided by the trial. The judge is saying that SCO hasn't presented any information or evidence by which they can make a reasonable claim of copyright infringment.

Re:it is about time

[Doc Ruby]

This is a corporation suing. A coporation with no other survival strategy left, now that its only viable business is suing on contrived IP rights. They will of course sue, unless their case can be thrown out on lack of evidence right away. Permanently; any retry should require them to pass that test with new evidence first. Amidst the new political campaigns to stop class action lawsuits, "tort reform", liability caps, and other interference with people suing corporations, this SCO case is emblematic of the primacy of corporate rights to "justice" over humans.

At the very least, US courts should require separate hearings by judges to determine what evidence is admissible, and whether it's enough for a trial (either by jury or by judge). Only certified evidence would be allowed, before the people hearing the case are exposed to it. Right now those decisions are largely in the hands of state prosecutors, or evidence introduced during the trial, disqualified from consideration by impressionable jurors. If we changed that one procedure, we could keep the rest of our accumulated judicial wisdom (tort), use juries for what they're qualified (whether a crime was commited in their community, not just an infraction), and kill frivolous lawsuits immediately, cheaply, without denying people and their corporations their due process.

Re:it is about time

[Scratch-O-Matic]

Thanks for the clarification. So he was looking for the establishment of a "disputed fact," which has a legal definition that I didn't know.

My ignorance on that subject reminds me of when I was shopping for my first house and spent a good amount of time telling my wife what an idiot the person was who wrote an ad saying that a house "conveyed with all appliances," -- a clear misuse of the word, as far as I knew. Of course, I was dead wrong then too.

Re:it is about time

[davie]

Assertions can be disputed, facts cannot. The contradictory term "disputed facts" is just more silliness from the folks who gave us that little gem we now hear so often on the evening news: "co-conspirator".

I wager that within ten years the illiterati of the legal profession will manage to push at least one of the following into common usage: co-teammate, co-spouse or co-associate.

Re:it is about time

[mranchovy]

I think it's the judge's way of telling SCO to put up or shut up. By not issuing partial summary judgement now, he's indicating that he's bending over backwards to keep an open mind, as judges are supposed to do. But the judge is also making it clear he's not going to keep an open mind too much longer.

Re:it is about time

[Anonymous Coward]

"co-associate"

How else do you propose to name the associate of an associate? Please note that transitivity is not warranted here. If A associates to B while B is associated to C that doesn't mean A being associated with C, but if it is, due to the terms of the B-C association agreement, then saying that A and C are co-associated doesn't seem to be too wrong.

Re:it is about time

[Anonymous Coward]

I have been wondering why Kimball hasn't granted summary judgement against SCO months ago.

It's that one armed man he keeps chasing. Takes up much of his time.

Re:it is about time

[Anonymous Coward]

You're not too swift for a guy with a four digit account number.

Re:it is about time

[BC Guy]

Unfortunately that whooshing sound you hear is SCO jumping on this statement as evidence of bias so they can get the case moved or restarted or somehow stave off their inevitable failure a bit longer.

Actually, the wooshing sound was probably from Judge Donald Thomson's court in nearby Chicago...

Re:it is about time

[Anonymous Coward]

Of course facts can be disputed. Anything can be disputed.

It either is a fact that I was at the scene of a murder or it is a fact that I was not at the scene of a murder. My disagreeing with the police over which of those is actually factual does not "unfact" it. Our disagreement does mean, however, that the facts are in dispute and will need to be determined by the court.

Re:it is about time

[47PHA60]

You are mistaken. A judge is supposed to have no pre-existing bias or emotional bias against a party in his court. In this opinion, the judge clearly explained his opinion and backed that up with filings by the plaintiff and defendant, and with his opinion that there has been no credible evidence from the defendant.

This opinion is written in a very common style for US Courts; it is a warning to the plaintiff that the Court is, so far, unconvinced by their evidence, but in the interest of fairness, the judge will reserve further actions until the plaintiff has exhausted the discovery process.

When a judge allows the plaintiff to finish preparing a case that he thinks is doomed, that is bending over backwards to make sure they get a fair chance.

Re:it is about time

[Anonymous Coward]

Of course you can dispute a fact. You can dispute both the observation of the "fact" (it's not a "real" fact) and the actual significance of an observation (that isn't what it means").

In a lawsuit sooner of later you need to show the court a "fact" upon which your dispute is based. Both sides can then argue about how that "fact" should be construed, or if indeed it IS a fact. SCO has asserted for over a year that IBM has violated SCO's rights without offering a single substantive "fact" upon which their assertion could be grounded. It's possible that if SCO does not come up with something REAL that they could face sanctions for essentially wasting the court's time. Theoretically, they should have shown the court AND IBM a set of facts that they construed as evidence that IBM was infringing on SCO in some way. They didn't at the beginning and never have. Instead, they have been attempting to fish for something real during discovery.

So Judge Kimball's observation SHOULD have them sweating in Utah because he is telling them that they have not shown him anything substantive and that he is aware of the song-and-dance routine and is not impressed. If there is nothing substantive, there will BE no trial and SCO will be one with the dinosaurs.

Re:it is about time

[NSash]

How else do you propose to name the associate of an associate?

You don't seem to have a clear idea of what the prefix means.

Re:it is about time

[haystor]

What?! That's discrimination!

Re:it is about time

[mwood]

Please note that there is a difference between what is just and reasonable, and what a party to a lawsuit might try in order to have his way.

Re:it is about time

[47PHA60]

No shit. That is why we have judges.

The point is that SCO has tried every kind of weird lie and delay tactic they can think of, and Judge K has put them on notice that he is waiting for evidence, not more filings. When a judge calls one's legal arguments "puzzling," that party is in big trouble. They can file whatever they like; but the judge does have a lot of discretion to stop the filings once he or she decides that everything significant has been seen. In order to get to that point, the judge often has to see some pretty insignificant stuff to be convinced that the plaintiff has exhausted every possibility of his case.

Re:it is about time

[Anonymous Coward]

He's not the only one, chuckle. Check your link.

What?

[WorldEnder]

What is this word "evidence" you speak of?

Re:What?

[Anonymous Coward]

I'm not sure, but I hear you can licence it from SCO for $699...

Re:What?

[Eradicator2k3]

$1399 after 13 October 2003.

Re:What?

[tomhudson]

Or they'll try to slip one in for free if you buy anything else from them ...

Re:What?

[sepluv]

So, basically, as they don't sell any other (e.g.: real) products, they now have a 2 for 1 offer...but they're double the price. Oohhh...I've got to buy one now.

Re:What?

[ats-tech]

I bet you could also license it as well...

/spelling_police

Re:What?

[tomhudson]

Actually, they did slip a free license to Computer Associates, who protested when they found out they were listed as one of SCO's linux licensees.

InfoWorld: "Computer Associates Inc. on Thursday blasted The SCO Group Inc. for harassing Linux users and misrepresenting the terms of a software licensing arrangement between the two companies that protected CA from a potential SCO lawsuit.

SCO Chief Financial Officer Bob Bench on Wednesday confirmed that CA was one of four publicly named companies to sign up for SCO's Intellectual Property (IP) License for Linux -- a $699 license that SCO says that Linux users must purchase in order to avoid violating SCO's copyrights.

On Thursday, however, a CA executive said that his company had purchased no such license, but had instead acquired a large number of licenses for SCO's UnixWare operating system as part of a $40 million breach of contract lawsuit settlement in August 2003 with SCO investor The Canopy Group Inc.

Around the time of the settlement, SCO announced that it had signed up the first customer for its Linux license. Though SCO did not reveal the identity of this customer industry speculation centered around it being CA."

Re:What?

[jack_csk]

Last time I checked, their OpenServer product line is still 5.x?
Are they thinking that 5.x is good enough with those packs/updates that they release rather than doing more development on next version

Oh wait... do they have developers?

Re:What?

[Scratch-O-Matic]

Evidence? We don't need no steenking evidence! /should have apologized in advance.

Re:What?

[Anonymous Coward]

Spelling Police should learn to stick to their own jurisdictions.

About time?

[sanosuke001]

Why didn't they just have IBM turn over everything they had that SCO was complaining about in the beginning and gotten it over with? They were running around, asking for a "little more" and where did it get anyone? More legal fees? Doesn't seem like a very efficient use of their time to me.... ...but I'm not a lawyer...

Re:About time?

[TomTraynor]

IBM did provide a huge pile of code. They also pointed out that SCO has all of the code as it is publicly available and free to download.

SCO complained to the magistrate that they needed complete unfettered access to ALL versions of AIX and DYNIX. That is billions of lines of code.

The judge even doubts that SCO has any evidence and stated that quite bluntly in his decision.

As for efficient use of lawyer time read the history of this case. SCO has consistenly asked for and received delays. In my not so humble opinion SCO is trying to get bought out and IBM's NAZGULS are saying no we want your head on our stake.

Re:About time?

[schon]

SCO complained to the magistrate that they needed complete unfettered access to ALL versions of AIX and DYNIX.

No, actually, that was a year ago. They *GOT* access to all versions, and still found nothing.

So they said they want not only access to all versions of AIX and DYNIX, but to every revision of every file that was ever checked into IBM's revision control system as part of AIX, as well as every programmers note and all design documentation, even if such things were never implemented.

Re:About time?

[rah1420]

they want not only access to all versions of AIX and DYNIX, but to every revision of every file ... even if such things were never implemented.

Hmm, sounds like a fishing expedition to me.

FINAL EXAM

"General knowledge: Describe in detail. Be objective and specific."

Re:About time?

[Anonymous Coward]

This is very typical in corporate litigation. You are generally entitled to any discovery you ask for regardless of inconvenience. It creates a war of attrition and jacks up legal bills which in turn jacks up the minimum settlement cost to whatever the increased short term foreseeable expenses are.
In many cases, failing to get the summary judgment motion would likely be enough to get the parties to the bargaining table. Of course in this case, SCO can't entertain a low settlement offer as they have already dropped a fortune into the case. SCO either needs a win or a windfall settlement. IBM has a lot of time before it faces any real risks and way more resources than SCO so it can wait them out.

Judge Jackson, back from the grave

[Dancin_Santa]

Well, I wish Judge Jackson the best of health, of course. But this judge is making the same mistake that Jackson did in the Microsoft trial.

Do not blast the litigants until the trial is over.

This one instance of him opening his big mouth will forever haunt him if he is ever in the position to assume a higher judicial office (which he won't be in now).

Re:Judge Jackson, back from the grave

[cyxs]

The Judge is not doing what Jackson did. He is not talking to the media, he is writing this in his order. Where as Judge Jackson was having meetings with media people. So this is completely different.

Re:Judge Jackson, back from the grave

[oliverthered]

Sounds like a 'next time it will be you head' warning to SCO to actually produce some evidence to back up it's claims, and also give IBM something to clean out SCO with after the trial.

Re:Judge Jackson, back from the grave

[ValentineMSmith]

...But this judge is making the same mistake that Jackson did in the Microsoft trial.

Do not blast the litigants until the trial is over.

This isn't quite the same thing. The thing that Judge Jackson got in trouble for was "blasting" Microsoft in an interview outside the courtroom. He was provoked, but the things he said in that interview crossed the line. Judge Kimball is simply doing his job at this point: he's ruling on motions and actually doing SCO a favor by saying that, if they don't produce more evidence, they'll soon be finished. While this was a "blasting" of SCO, the blasting was done where it should be done: not behind the litigant's back where they couldn't reply. It was done in a ruling based on the evidence presented.

I suppose you could say that it is showing bias, but it's bias towards the truth.

Re:Judge Jackson, back from the grave

[Darth Yoshi]

But this judge is making the same mistake that Jackson did in the Microsoft trial.

The problem was that Judge Jackson made his comments to a reporter in an interview outside his duties as a judge.

Judge Kimball is making his comments as part of his rationale of why he is denying SCO's motion. This is more of an objective observation than subjective comment.

Re:Judge Jackson, back from the grave

[Anonymous Coward]

Darl, is that you?

Re:Judge Jackson, back from the grave

[DrSkwid]

but this comment is part of the trial, not outside of the trial.

It is his duty to do this, as far as I can tell.

Re:Judge Jackson, back from the grave

[crimguy]

I don't see the nexus, frankly. Judges voice criticism over cases all the time, and are famous for getting pissed off when it appears that their time has been wasted by frivilous motions/continuances, etc. This guy is a district judge in Utah? I don't expect him to be on the Ct of Appeals anytime soon.

Re:Judge Jackson, back from the grave

[Ohreally_factor]

Actually, if you go to Groklaw and read the material yourself, the judge wrote this in the context of denying IBMs motion. The Judge is describing why he was so tempted to grant the motion. Since he dismissed it without prejudice, IBM can re file the motion later, after discovery is complete.

Re:Judge Jackson, back from the grave

[Zeinfeld]

Well, I wish Judge Jackson the best of health, of course. But this judge is making the same mistake that Jackson did in the Microsoft trial. Do not blast the litigants until the trial is over.

This is completely different from Jackson the Jackass. It is a court opinion delivered from the bench after the judge has analysed the evidence. Jackson was giving private interviews to a journalist. He tried to appoint Larry Lessig as a special master a second time after the appeals court had told him not to. Given Lessig's subsequent public possitions on free software there is absolutely no way he can be considered impartial in the matter.

Blasting the littigants in this case is quite justified because SCO is attempting to profit from its lawsuit by claiming to own the copyright to Linux.

SCO has had an ample opportunity for discovery and come up short. The Judge is making an empirical observation here which is exactly what he is meant to do.

Re:Judge Jackson, back from the grave

[HangingChad]

While this was a "blasting" of SCO, the blasting was done where it should be done: not behind the litigant's back where they couldn't reply.

It's not unusual for judges to drop some fairly broad hints in the course of a trail to one side or the other. But in a world of nuance, subtlety and polite conversation this was a very direct statement.

I'm sure SCO's lawyers didn't walk away with any ambiguity about where things stand. Kimball not only told them their case against IBM was groundless but the way they've handled the entire affair was suspect. That was a pretty big statement.

Re:Judge Jackson, back from the grave

[UnknowingFool]

One more thing that is different. Judge Jackson expressed personal bias towards MS and their lawyers. Here Judge Kimball is commenting about the case and the legal actions of the defendant.

Re:Judge Jackson, back from the grave

[SQLz]

The judge simply stated they made a lot of public claims and then didn't back any of them up in court.

Re:Judge Jackson, back from the grave

[CmdrGravy]

The judge is just stating his opinion that SCO hasn't shown any actual evidence so far.

That is not demonstrating any bias it's just his legal opinion which is what judges are paid to supply.

Re:Judge Jackson, back from the grave

[Jane_Dozey]

"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities,"

All the judge is saying is the he is surprised that SCO have not managed to turn up any real evidence yet, dispite making claims to the media that they already have it. I don't see any bias here, just a judges view (and frustration) of what is going on. He's not saying that he either likes or dislikes either party involved, or where this case is going (although he doesn't appear to have much hope of SCO turning anything up).

Sceptisism is not bias.

Re:Judge Jackson, back from the grave

[Anonymous Coward]

Sometimes the Judge has to make a little noise, what if what he is really saying is hey these guys are making a lot of statements in public that don't hold up to examination. Does this mean they are trying to over state their intellectual property value to enhance their market position? If so a different jurisdiction like the Securities and Exchange Commission needs to be looking at this. I believe that SCO is on a slippery slope that they originally believed would result in IBM buying them out, but with so much of IBM's reputation being so deeply dependent on intellectual property (more patents that anyone else year after year) they had to protect their interest. I hope this is a case of SCO posturing they can't back down from rather that a belief they have a case. I think the later would not bode well for the competency of America's executive pool.

SCOX pre-trading down

[rylin]

http://finance.yahoo.com/q?d=t&s=SCOX
pre-trading says it's down 5%

Re:SCOX pre-trading down

[iainl]

Which only brings it down to where it was a week ago - certainly not the huge chunk down you might expect.

Re:SCOX pre-trading down

[Jeff DeMaagd]

I wouldn't get excited unless the dip is into the double digit percents. It would be nice to see them become penny stock though.

Re:SCOX pre-trading down

[bluesangria]

Hmm, maybe investors are starting to wonder based on this Computerworld article
FEBRUARY 07, 2005 (COMPUTERWORLD) - Ray Noorda is back. On Dec. 17, the man who built Novell fired his trusted protege, Ralph Yarro, for pocketing upward of $20 million from "self-dealing transactions" at Noorda's investment company, The Canopy Group. Noorda replaced Yarro and took control again of the venture capital firm he founded and funded.

Think this is some obscure industry sideshow? Think again. Yarro was the architect of The SCO Group's assault on Linux and its corporate users. Yarro used his position to turn a Noorda-funded Linux start-up named Caldera into the anti-Linux litigation machine SCO.

blue

Re:SCOX pre-trading down

[rob_squared]

With a ticker name like that, they're wide open for a lot of puns. Especially if that S stands for something, and the last letters are a word...

Re:SCOX pre-trading down

[Jboy_24]

Unfortunatly, and most observers of SCOX will agree with me, this ruling will probably make SCOX's stock gain tomorrow.

Why?

1. SCOX has traditionally a low volume. This makes it really easy for any party to come in and manipulate the price through careful buying. Reason #1 why you should never short this stock.

1b. SCOX has proportioned a large amount of money to buy back stock they've issued. They most likely have some remaining. They could buy some back and offset sells.

2. The float of this stock is very small. A high percentage of the stock is tied up in insiders and institutions. They're not likely to sell after news such as this. For the stock to drop they're needs to be sellers of the stock willing to take a loss.

3. A large number of short shares. There is a chance of a short squeeze where shorts who got in late in the game buy to get out, esp after 1 and 2 happen and demoralize them. This will rise the price up, perhaps around 4.5 to 5, and people who got in at 3 might find they're brokers forcing them to cover.

In short, the only time this stock will drop like the rock it is, is when they declare bankruptcy.

My WAG, opening tomorrow, a drop of .5 cents or 15%, then by the end of the day, a close of + .05 cents.

Still no reaction...

[Vo0k]

Let's wait till tomorrow... seems the stockmarket hasn't caught up yet :)

Re:Still no reaction...

[Anonymous Coward]

actually this looks more promising.

Re:Still no reaction...

[Vo0k]

Screw /. for destroying the link

wow

[Anonymous Coward]

I'm almost beginning to think that SCO is making this whole thing up.

Re:wow

[Anonymous Coward]

No way! I mean, SCO has been totally honest from the start. Millions of lines of code, MIT experts and of course the code they showed at SCOForum. So you mean they lied to create FUD?? Can I get my $699 back?

Re:wow

[turbosk]

"No way! I mean, SCO has been totally honest from the start. Millions of lines of code, MIT experts and of course the code they showed at SCOForum. So you mean they lied to create FUD?? Can I get my $699 back?"

This is really creepy when you compare it to the case for the "WEAPONS OF MASS DESTRUCTION" made by the Bush administration, circa winter 2003. Except in that scenario, the role of the court was played by the UN, who had no power or authority to smack down the US. Hopefully this time truth and justice will win, creating a smoking black crater in Utah.

pax,
fred

Re:wow

[beamin]

I don't know what you mean! The Bush case for WMD was strong! Just like the one for privatizing Social Security in order to save it!

Re:wow

[Anonymous Coward]

Flamebait -- Flamebait refers to comments whose sole purpose is to insult and enrage. If someone is not-so-subtly picking a fight (racial insults are a dead giveaway), it's Flamebait.

turbosk's comment is NOT flamebait

Re:wow

[jbolden]

In all fairness to the Bush admnistration: the analogy would be a little more similar if IBM had engaged in a disinformation campain to convince HP that it had stolen code from SCO to back HP off from an OS contest.

Re:wow

[Anonymous Coward]

"the analogy would be a little more similar if IBM had engaged in a disinformation campain to convince HP that it had stolen code from SCO to back HP off from an OS contest."

ummm, that is easily one of the most convoluted sentences i've ever read. How would that make it more of a similar situation?

Re:wow

[jbolden]

Iraq had worked hard to convince Iran that it had WMD's and this disinformation campain was the reason the CIA believed they had them.

Re:wow

[beamin]

Oh, that makes total sense. Iraq said it had weapons to intimidate its neighbor, and our President and his "advisors" decided to take their word for it!

YEA!!

[cynyr]

I think that that is what most people on /. will be saying if i read that correctly of course. It seems that SCO will actully be made to give line numbers or such of the infringments. YEA!!!!!!!!!!

Loser should pay

[bigtallmofo]

Until the U.S. adopts a "loser pays" court system similar to the UK, these types of exploratory frivolous lawsuits will continue.

Imagine if on the other hand SCO had to pay for IBMs entire legal defense to their frivolous lawsuit after they lost. This lawsuit never would have seen the light of day.

Re:Loser should pay

[Anonymous Coward]

If "the U.S. adopts a 'loser pays' court system similar to the UK" small parties can be bullied into submission even easier : [company to the suing private person] "I've got more money than you, and you will be paying my expenses too, so who do you think will win, and who will be left with a debth he will not be able to pay of for the rest of his life ?"

Actually, both systems have their ups and downs :-)

Re:Loser should pay

[RootsLINUX]

I absolutely concur. Someone intelligent in the government needs to stop this lawsuit bullshit. Only problem is, do we have anyone intelligent in office? ^_~

Re:Loser should pay

[ForestGrump]

In a loser pay system, wouldn't it be possible for SCO to spend all they have, lose the case and simply close shop?

They're dead anyway. Might as well go out with a bang so they will be remembered in Econ text books on what a last ditch effort for funding should be.

Grump

Re:Loser should pay

[Trolling4Columbine]

And that would hold water until a Little Guy (tm) sued a Big Evil Corporation (tm) with a valid claim, but lost due to the legal muscle of Big Evil Corporation. Not sure how it works in the UK, but as you describe it, it seems that corporations could get away with just about anything.

Re:Loser should pay

[NetNifty]

"Not sure how it works in the UK, but as you describe it, it seems that corporations could get away with just about anything. "

I have never studied law, but iirc the Judge chooses who pays the costs, or at least has some say in the matter.

Re:Loser should pay

[91degrees]

I heard about a suggestion for reform of loser pays winner a multiple of their own costs. So if you spend $100 000 000 on your prosection against a defendant who can only spend $1000, you have to realise you're risking $200 000 000 against a possible gain of $1000 + actual costs of damages. English law already has figures for plaintiff as council, so it wouldn't be possible to claim zero cost if you represent yourself.

This wasn't a formal suggestion though. Just a speculative idea from a phycisist and a legal professional, but it's an interesting idea.

Apparently that sort of bullying is only possible in England. Scotland does things slightly differently. (No, I don't know what the actual difference is.)

Re:Loser should pay

[Entrope]

The US legal system does have recourse for someone who is wrongfully dragged into a lawsuit and wins. There are several related torts; malicious prosecution and abuse of process are two of the major ones.

Depending on state law, you can sue the original plaintiff and attorney if there was no reasonable basis for the original claims, and be awarded your costs for both actions. It is not automatic, and therefore encourages reasonable actions rather than conservative actions. A bigger part of the problem is the gullibility and emotion of juries.

Even if the malicious plaintiff goes bankrupt, their attorney(s) may be on the hook for your costs -- the attorney is supposed to know all the facts that support the plaintiff's case, and provide proper counsel as to the likelihood the plaintiff would have prevailed.

Re:Loser should pay

[Anonymous Coward]

Are you nuts??

This makes it 100% impossible for any person to sue a company or a rich person.

How many "reelect bush" stickers do you own man? because you sound like one of these assholes that are intersted in making the poor slaves and the rich untouchable.

Loser pays in FRIVILOUS lawsuits? yes. loser pays in all lawsuits? that is pure unadulterated stupidity.

you get a cookie for making the most stupid statement on slashdot today.

Re:Loser should pay

[plague3106]

Wrong. It will punish those who may actually have a ligit case, but could not win because of a technicality or some other reason. If the suit is found frivolous, there's nothing right now to stop IBM from suing SCO to recover legal fees. Lawyers don't typicially take a case they are pretty sure they will lose.

Not all cases lost are frivolous, and that's the major flaw in your arguement. (Lets also remember that this would apply to the state as well...so it might chill cases against criminals.)

Re:Loser should pay

[vagabond_gr]

So this is justice? Would you say the same thing when RIAA/MPAA sues Mr. Nobody for sharing, or is it only when we have IBM's backing?

Re:Loser should pay

[hackstraw]

Until the U.S. adopts a "loser pays" court system similar to the UK, these types of exploratory frivolous lawsuits will continue.

Imagine if on the other hand SCO had to pay for IBMs entire legal defense to their frivolous lawsuit after they lost. This lawsuit never would have seen the light of day.

I'm not sure. SCO has spent many millions (I forget the actual value) in legal expenses.

However, there is nothing stopping IBM from suing SCO for a frivolous lawsuit.

Re:Loser should pay

[mwood]

"In a loser pay system, wouldn't it be possible for SCO to spend all they have, lose the case and simply close shop?"

That would be considered a win for the defendant in this case, I think. IBM doesn't need the money; they need to display SCO's head on a pike as a warning to others.

Re:Loser should pay

[Anonymous Coward]

And it works out, of course, because judges in the UK never abuse their power or make bad decisions, unlike the ones in the US!

Re:Loser should pay

[McNihil]

But lawyers need work too ;-)

I hope the sarcasm didn't fry your monitors.

Re:Loser should pay

[farnz]

You've never looked at the UK system, as it doesn't work like that at all.

Firstly, the judge can refuse to award costs, or can award them such that the winner pays all; if a big company tries a trick like you're suggesting, a judge will probably use this flexibility. Note that under a loser pays system, the judge has to explain why they didn't award costs, or awarded them in a "winner pays" fashion.

Secondly, if you've got a strong case, you can get a good lawyer to work for you for minimal expense; typically, they demand an up-front payment of £500-£1000 (maybe as much as $2500) to touch the case, but then works in the hope of winning the case and getting a big costs award (courts normally award your standard fee schedule, plus credit-card rate interest).

The result is that anyone faced with a case they are likely to lose is going to settle. Where it's genuinely unclear, the courts revert to pay your own costs, and where you have an abusive but technically victorious litigant, they still pay everyone's costs.

Re:Loser should pay

[KontinMonet]

Loser does not necessarily pay.

I won a drink-driving case against the police. I strenuously disputed the 'fact' I was over the limit (the police gave me my car keys back after the breath test and told me to go home!). They simply 'forgot' to send my blood sample for testing and prosecuted me over two years later!! The phrase used in court was 'male fides' or some such. We asked for costs but the judge said no. He disliked the fact that the police had lost even though they were a right bunch of twats.

Re:Loser should pay

[Anonymous Coward]

When SCO loses the case they are dead anyway with no money left. No way IBM will be able to recover legal defense fees. So IBM would not benefit from "loser pays" court system in this case.

Re:Loser should pay

[cassidyc]

Actually that's probably closer to the truth than you care to admit. Most Judges take great delight in telling the government where to get off.

Ahh the joys of a decent (mostly) independent legal system.

CJC

Re:Loser should pay

[Bloater]

The directors would also have to declare bancruptcy when the shareholders go after them for not looking after their interests.

Re:Loser should pay

[sootman]

How does the UK system keep me from going broke when $GIANT_CORP sues me for no reason and I lose because, despite being right, I can't afford to mount a good defense against their team of lawyers? I get to pay for their lawyers in addition to my own fees, even though I did nothing wrong?* I think it should be more like "if you sue someone _and lose_, then you pay" kind of thing, with some kind of limit for david-and-goliath cases.

* don't know how it is in the UK, but here, being right does not guarantee a victory in court.

Re:Loser should pay

[IWannaBeAnAC]

Usually, if you are actually right, a law firm will take on your case for a minimal fee, in the (reasonable) expectation that they will get their costs paid at the end.

Re:Loser should pay

[CmdrGravy]

In actual fact the UK system assigns costs at the Judges discretion, by default the loser pays but the judge can order split the payments anyway he likes.

Re:Loser should pay

[Rimbo]

Remember that IBM brought counterclaims against SCO. This is the important thing. By managing the case in the way they have, IBM is giving Linux and the GPL a rock-solid legal precedent. As a result this "frivolous" lawsuit will actually eliminate one of the big credibility concerns people had with Linux and with open-source development.

Seeing IBM out there defending open-source -- not out of any bullshit sense of "community," but to defend its business strategy -- is erasing the image of the open-source coder, unwashed, unshaven, working in his parents' basement, and replacing it with large corporations with "new" business models.

I use quotes, because this is the way the computer industry used to be in the days before Microsoft: Software was part of the hardware or service you bought, not a product in itself.

Re:Loser should pay

[radish]

The judge can award costs to whoever he wants. The usual case is loser pays, but in some cases he will award no costs, in some cases (e.g. where $BIG_CORP wins, but is being an obvious bully) he will force the winner to pay all.

How it pans out is that in the UK we have _far_ fewer of these insane cases (including medical liability, accident liability etc cases) and lawyers are not as rich. Seems to work out OK.

Re:Loser should pay

[mcc]

In a loser pay system, wouldn't it be possible for SCO to spend all they have, lose the case and simply close shop?

Isn't that pretty much exactly what they're doing now?

Re:Loser should pay

[Anonymous Coward]

and what is the problem with that? no money for the blood sucking lawyers!

Re:Loser should pay

[ari_j]

So you're saying that the loser-pays system is not strict, and making the loser actually pay is at the discretion of the court? Wow, sounds familiar. That's how we do it anyhow!

Re:Loser should pay

[Anonymous Coward]

if a big company tries a trick like you're suggesting, a judge will probably use this flexibility.

because legal structures always favor the little guy, and are never biased for the powerfull...

Re:Loser should pay

[ari_j]

I comprehend it fully. When you piss a judge off by filing a frivolous and repressive lawsuit, you are going to usually have to pay for it. You really need to be more careful of whom you insult, and how. There are valid insults to throw at me, but that the Indian who took over my old job (never happened, sorry to disappoint you) is brighter than I am (which he isn't) or that his intelligence has anything to do with understanding the American legal system (which it doesn't) is not one of them.

Re:Loser should pay

[Anonymous Coward]

Thus proving that you're not understanding at all. Gotta love idiot Yankees who think they're superior, just because they understand their system.

Under a real loser pays system, if you file a lawsuit and lose, you pay everyone's costs (up to legally defined "reasonable" limits). If you are filed against and lose, you pay everyone's costs (again, up to "reasonable" limits). If you piss off the judge with a frivolous or repressive lawsuit, regardless of whether you win or lose, you pay everyone's costs.

In the American system, if you file a lawsuit and lose, you pay your own costs. If you are filed against and lose, you pay your own costs. if you piss off the judge with a frivolous or repressive lawsuit, regardless of whether you win or lose, you pay everyone's costs.

Does this make the difference clear yet? Just to clarify the financial side of it for the idiots out there; under the American system, the rich win by throwing lawyers at the problem, ensuring that any lawsuit is expensive. This gets them out of the system if you're not rich. Under a loser-pays system, this backfires; the poorer party can borrow (often from their lawyer) to pay for a case, and then get the costs back from the richer party.

Re:Loser should pay

[Anonymous Coward]

And how does that affect the outcome of the case?

Mod parent the hell up

[Carthag]

My thoughts exactly. This is the stuff that retrials are made of.

And all the while, we'll have to listen to all these ridiculous claims.

Judges _can_ judge

[redelm]

Judges MUST start out a case totally unbiased.

But they don't need to end up that way. In many cases, they should end up pretty negative towards one party. That's the basis for judgement.

All dislike is not prejudice. Some is well founded.

Re:Judges _can_ judge

[Speare]

Judges MUST start out a case totally unbiased. But they don't need to end up that way. In many cases, they should end up pretty negative towards one party. That's the basis for judgement.

That's not correct thinking. A case is about a disputed issue, not about the parties involved in the dispute. The Judge should rightfully decide the issue, but remain unbiased about the parties themselves. Good companies do bad things, and bad people are not invariably in the wrong.

The reason a Judge in the USA legal system should remain (at least appear to remain) completely unbiased for or against the parties in a suit: they may be called upon to revisit their decision. When litigants appeal to a higher court, the higher court may simply return the case to the lower judge with certain concerns that should receive due consideration in a reevaluation of the judgement.

You can't re-evaluate a returned case fairly if you've loudly and publically derided one of the litigants as being a total prick.

Re:Judges _can_ judge

[redelm]

Actually, I didn't think that cases were about parties or issues, but about behaviours. So long as a judge confines him/herself to criticism of past litigant behaviour, they are on safe ground. What crosses the line is predicting future behaviours.

However, a judge is perfectly entitled (and may be constiutionally required--speedy trial) to get impatient. I see nothing wrong with "You've shown the Court nothing substantive. Do you have any? Present it in two weeks or risk summary judgement.

Re:Judges _can_ judge

[Zemran]

How is it bias to say that there is no evidence? That is not saying that you prefer one side to the other, just that to conduct a case there is a responsibility to provide evidence.

Re:Judges _can_ judge

[sootman]

"Judges MUST start out a case totally unbiased. But they don't need to end up that way. In many cases, they should end up pretty negative towards one party. That's the basis for judgement. All dislike is not prejudice. Some is well founded."

Exactly. For those who still doubt, the word "prejudice" comes from (wait for it...) "pre" and "judge". If you make a JUDGEment before hearing the facts (PRE-fact, you might say), that's "prejudice." Get it?

(And when did Google start using answers.com? I like dictionary.com a lot more. Less info, loaded faster. No, I do *not* need translations into Dutch, French, German, Greek, Italian, Portuguese, Russian, Spanish, Swedish, Simplified Chinese, Traditional Chinese, Japanese, Arabic, and Hebrew _every single time I search_.)

Re:Judges _can_ judge

[Eivind]

But there's a difference between stating reasons for your decisions in actual official court-documents and blathering off to reporters.

The judge can very well be unbiased about SCO and still state -- about the issue at hand -- that SCO has failed to provide any evidence whatsoever.

Re:Judges _can_ judge

[AviLazar]

Also, remember, prejudice is to prejudge.

dictionary.com

An adverse judgment or opinion formed beforehand or without knowledge or examination of the facts.

The judge's is job is to post-judge. If in the middle or the end of the case he wants to state that one party is not fulfilling their obligation then he is doing so after hearing evidence and is judging them (again his job).

Re:Judges _can_ judge

[geoffspear]

However, a judge is perfectly entitled (and may be constiutionally required--speedy trial) to get impatient.

I suggest you reread the first 4 words of the sixth amendment. "In all criminal prosecutions[...]".

On the other hand, even without a Constitutional requirement, it's probably fair for a judge to tell people to stop wasting his time and the taxpayers' money if they're not going to present any actual evidence.

Re:Judges _can_ judge

[Anonymous Coward]

I suggest you reread the first 4 words of the sixth amendment. "In all criminal prosecutions[...]"

And this has what relevance to a civil lawsuit?

Re:Judges _can_ judge

[geoffspear]

And I suggest YOU reread the last 2 messages of this thread.

You want to change the system?

[Anonymous Coward]

A little verbal smackdown won't do it. Instead if lawyers start getting disbarred for acts of senseless sophistry, lying and embezzeling. That will force a little forethought into the profession.

Re:You want to change the system?

[spottedkangaroo]

Who is meant to enforce such a thing? The American Bar Association? Do they even check for "sophistry," or is it just an ordinary (read: corrupt) business like the AMA?

(great word btw.)

Re:You want to change the system?

[OldeTimeGeek]

What do the lawyers have to do with this? They are doing what SCO hired them to do. If you RTFA (especilly the Groklaw commentary) the judge was commenting on SCO's comments to the press versus what they have provided in court.

I don't believe that lawyers are always on the same side as the angels, but they're not the ones to blame this time. SCO is the party that brought suit - if there's smackdown to be done, SCO should be first in line...

Re:You want to change the system?

[Anonymous Coward]

They are lying for money. If the judge thinks the case that they have put foreward is the work of a fool, they're professionals and they should know better. And if they don't know better, they shouldn't be professionals anymore.

Re:You want to change the system?

[arkanes]

It's technically a violation of professional ethics for a lawyer to prosecute a case he knows is unreasonable or invalid. I don't believe that this gets much more than lip service these days, if indeed it ever did.

Re:You want to change the system?

[Anonymous Coward]

They are lying for money
They would say .. prove it. or they will sue all AC's here.

they're professionals That is what for money means.

You mean .. stop paying the lawyers...

Re:You want to change the system?

[oconnorcjo]

I don't believe that lawyers are always on the same side as the angels, but they're not the ones to blame this time. SCO is the party that brought suit - if there's smackdown to be done, SCO should be first in line...

If a competent lawyer said to thier client that they don't have a case, most clients would say ok- forget the whole thing (and either drop the idea or go to a more sleazy lawyer).

Lawyers who have sleazy clients are probably sleazy lawyers. Sleazy client says I want to sue billion dollar corporation for a billion dollars and sleazy lawyers says it will cost you xyz an hour pluss a percentage and I will do everything in my power to get what you want.

I won't say all lawyers are sleazy BUT THIER ARE A LOT OF SLEAZY LAWYERS and if they were not sleazy to begin with, many become so with the mantra of "I am getting paid to do this despite how I feel."

That comment may work for defense lawyers but not for prosecuting civil lawyers.

I would say most lawyers have earned thier reputation and only a few subdivisions of lawyers I have any respect for which are:

criminal defense attorneys
criminal prosecutors
Contract Attorneys (handle mostly wills/corporate agreements/house buying and selling).

Most of the rest are worse than useless.

When Boise was the lead prosecutor against MS, I thought he seemed like a good prosecutor and I thought highly of him.
When he took the Al Gore election tally to the Supreme court I thought him to be doing what he moraly thought was right.
When he decided to accept the SCO case, I lost a lot of respect for him.
Maybe when Boise's firm decided to take the case, SCO assured Boise and boys that there was something legitimate but as this drama unfolds I have a difficult time of thinking of Boise as anything more than a pimp for hire.

Re:You want to change the system?

[Anonymous Coward]

"It's technically a violation of professional ethics for a lawyer to prosecute a case he knows is unreasonable or invalid."

This would be extraordinarily diffult to prove.

Re:You want to change the system?

[Anonymous Coward]

"they're professionals That is what for money means."

Yes. But it also means "knowledgeable and accountable".

Re:You want to change the system?

[Anonymous Coward]

This would be extraordinarily diffult to prove.

That's why it falls under ethics. It shouldn't need to be proven. It's the lawyer's ethical obligation. If someone has to prove it wrong, then it's not ethics.

Re:You want to change the system?

[BillyBlaze]

Don't worry, nobody's trying to move all blame from SCO to the lawyers - but just because it's not only the lawyers's fault doesn't mean it's not also their fault. If there's a smackdown, SCO management and its lawyers should get it equally - they both freely made a choice between money and not evil, they both sold out, and dammit, that's not OK!

Re:You want to change the system?

[OldeTimeGeek]

Oh, I wasn't worried. There's more than enough blame (if that's the right word for it) to go around. I understand that the lawyers may not be totally to blame for the lawsuits but they're not blameless either. They had the choice to take or reject the contract and they decided to take it.

Besides, I didn't say who was next in line for smackdowns...

Re:You want to change the system?

[gandy909]

I'll say it then... ALL LAWYERS ARE SLEAZY!

Lawyers couldn't give a RIP about winning or losing a case. It's all about "billable hours".

Re:You want to change the system?

[blibbler]

Disclaimer - I am not a lawyer, but I work with a number of lawyers.
If a competent lawyer said to thier client that they don't have a case, most clients would say ok- forget the whole thing (and either drop the idea or go to a more sleazy lawyer).
That is a great idea, but in reality, clients often instruct their lawyers to do things that they don't think should happen. With cases like this, it isn't a matter of the lawyer going to someone, and telling them to sue.

I would say most lawyers have earned thier reputation and only a few subdivisions of lawyers I have any respect for which are:
criminal defense attorneys
criminal prosecutors
Contract Attorneys (handle mostly wills/corporate agreements/house buying and selling).
So the criminal defence lawyers who cross examine victims of pedophillia until they crack and say whatever they can to get out of the situation are deserving of respect?
Criminal prosecutors who pursue people even though they know that the person only shoplifted because they haven't eaten in a few days are deserving of respect?
Contract attorneys who act on behalf of large corporations pressure individuals or small groups into signing unjust contracts are deserving of respect?
While constitutional lawyers who work probono for 3 years to establish land rights for dispossessed aboriginal people are "sleazy lawyers"?
legal aid lawyers who work tirelessly to ensure that a child's best interests are preserved are sleazy?
Personal injury lawyers who defend individuals from frivolous lawsuits are sleazy? Personal injury lawyers who pursue actively negligent parties who are responsible for causing serious permanent disability in people are sleazy?
Environmental lawyers who personally fund class action law suits against companies that knowingly contaminated a town's water supply are sleazy?
Human rights lawyers who fight tyrannical governments, and force them to release political prisoners from torture and abuse are sleazy?
Immigration lawyers who work long hours to get people who were tortured and abused asylum in less oppressive countries are sleazy?
Tax lawyers who ensure that wealthy people pay their fair share of tax so as not to place an unfair burden on the poorer members of society are sleazy?

Anyway, I don't really have a point besides the kinds of prejudices that a lot of people have about lawyers are misplaced, or misunderstood. Western society would not exist if it were not for laws, and the lawyers who service them. While some lawyers are involved in law suits that are at best unfortunate, and at worst, highly unjust, it is extremely narrow-minded to argue all, or even most have lower moral standards than the average person.

I'd love to hear the judge say

[EvilNutSack]

"Liar, liar, pants on fire!"

Re:I'd love to hear the judge say

[Anonymous Coward]

I call shenanigans.

Re:I'd love to hear the judge say

[cybersaga]

"Liar, liar, pants on fire!"

Like Judge Judy?

Re:I'd love to hear the judge say

[MsGeek]

No, her famous comment is "Don't piss on my leg and tell me it's raining."

Re:I'd love to hear the judge say

[Anonymous Coward]

Wow. A Star Wars joke gets a -1 on slashdot. /golfclap to moderators

Re:I'd love to hear the judge say

[MonkeyGone2Heaven]

I'd prefer to see Darl's pants spontaneously combust in open court.

How will SCO spin this?

[veldstra]

One can only wonder what kind of good news SCO can/will make out of this... So far they've been very able to turn bad news into good news with lame excuses.

Re:How will SCO spin this?

[yodaj007]

One can only wonder what kind of good news SCO can/will make out of this...

Lame good news.

Re:How will SCO spin this?

[Undertaker43017]

That's easy:

"IBM's summary judgement denied!"

They will just ignore the other stuff.

Re:How will SCO spin this?

[lbmouse]

You are very right. Good example from their website:
SCO Ranked #1 Corporate Query Site by Google. Based on billions of searches conducted by Google users around the world, the 2004 Year-End Zeitgeist ranks SCO's corporate Website as the most searched site for the year.

Like people searched for SCO to buy their products.

Re:How will SCO spin this?

[dtfinch]

Our $5 billion lawsuit against IBM is progressing at an accelerated rate, so buy our licenses while you still can.

Re:How will SCO spin this?

[chris mazuc]

They also left out that we were searching for litigious bastards. Doesn't seem to work anymore though.

Re:How will SCO spin this?

[Anonymous Coward]

It worked for me. The first result was SCO.

Re:How will SCO spin this?

[SCO_Shill]

Things are great! In fact, they couldn't be better!

So! You probably thought our case was dead... DIDN'T YOU!?
I got away from the judge at the last second and now I'm REALLY going to cause some trouble!
In fact, that's what the next part of the case is going to be about!
Yeah, that's the ticket! Me and my exciting adventures as I conquer the Penguins for the greater glory of... ME!
It will have action! It will have drama!
It will have gratuitous alien sex scenes!
It's gonna be great!

Oh, wait...

Re:How will SCO spin this?

[Anonymous Coward]

One can only wonder what kind of good news SCO can/will make out of this... So far they've been very able to turn bad news into good news with lame excuses.

AP - A group of masked gunmen armed with AK47s stormed SCO's headquarters today, slaying most SCO employees on the spot. The gunmen also salted the earth around SCO headquarters, and left a message at the scene stating that they would methodically hunt down and kill all remaining SCO employees as well as the entire families of all people who have worked for SCO at any time in the company's history. Darl McBride, CEO of SCO who happened to be away on a pleasure cruise at the time of the slaying, issued an upbeat press release: "Well, we've managed to slash expenses by reducing headcount with this latest chapter in our exciting roller-coaster ride on the forefront of high tech. This event surely means our competitors are becoming desperate as the value of our product line builds momentum. I am now going to stay by the phone waiting for the inevitable buy-out bidding war that IBM and Microsoft will surely wage for us. Oh, and by the way, today's events make clear the need for IBM to submit many more documents in our ongoing discovery motions against them."

SCO stock was up 15% on the news.

Re:How will SCO spin this?

[Atzanteol]

Well, given that the statement was made in an order to DENY IBM's 10th motion, I think I know how SCO will spin this...

They'll just ignore that statement. "IBM's 10th motion denied! Judge see's SCO's clearly going to win!"

Re:How will SCO spin this?

[Anonymous Coward]

Very strange, it worked 2 out of 7 times. I guess all Google servers aren't the same.

Prep remarks

[redelm]

I see these remarks as preparatory to a final demand for precise complaint and evidence (lines of code) under threat of summary judgement.

I think a judge has to make these sorts of remarks to withstand appeal of summary judgement. First IBM asked, and received naught. Now the Court is asking. If it receives not, then summary judgement or dismissal with prejudice becomes warrented. IANAL

Re:Prep remarks

[ari_j]

YANAL, but YACS (you are correct, sir). In order for a question to get to the jury, there must be a disputed, material fact. If your complaint (as in the motion starting the lawsuit) states no claim, it can be dismissed right off, but it's safe to say that SCO has crafted a valid complaint. So now the danger to SCO is summary judgment, which is a process where one side (here, defendant IBM) makes a motion for summary judgment and the court decides whether to grant it.

Summary judgment works like this: on the basis of all the pleadings and evidence the court has so far, is there a dispute to a material fact? If not, then the undisputed material facts will form the basis for the court's ruling as a matter of law, sans jury. SCO has to create a dispute as to a material fact, and then it can get to the jury.

It sounds to me like the judge is getting impatient with SCO.

From TFA...

[md81544]

"...when you're talking about the danger of having summary judgment or even partial summary judgment granted against you, it's pretty difficult to think of a reason [SCO] would withhold all of [their] evidence," Levy said."

...er, perhaps because they haven't got any??? :-)

I think IBM appeals the discovery now

[codepunk]

I think IBM can make a good case for a appeal on discovery to the 10th Circuit based on this ruling. They can even use the judgement to strengthen the case against this fishing expedition.

I liked this one...

[bogaboga]

[...] "There's very little that can be more disastrous to your case than an angry federal judge."[...]

It seems the judge is very angry with SCO at this point but is also trying to remain impartial. It is suprising that in recent days, SCO stock has seen a rally. Why is this?

Re:I liked this one...

[curtvdh]

The vast majority of SCOX stock is owned by a handful of large institutions. The average investor (i.e. you and me) account for only a very small percentage of the total amount of outstanding stock.

Bottom line - the movement of the stock price of SCOX has very little to do with any external events.

Re:I liked this one...

[Bill Walker]

Angry or not, the Judge refused to make an early ruling. This means SCO still has a chance. Slashdot just chose to word the story in the most negative light possible for SCO; the headline on my news ticker says "Judge Rejects IBM Request for Early Ruling in SCO Case".

The short interest (number of borrowed shares being sold in the expectation of buying back at a lower price) is now almost half the total float now, so I'd say Slashdotters aren't the only ones that doubt the merits of SCO's case.

My one word response? PWNED!!

[tod_miller]

The judge isn't in danger of doing a MS - his summary statement was well within predefined limits of case judgements. He is a judge, and this is the tail end of the hearings.

I just cannot wait for SCO victory news post about this:

"We can confirm that out lack of evidence and badly planned strategy has given our investors even more oppourtunity to spend thier cash, buy buy buy!"

SCOX? They SuckCOX!!!

Re:My one word response? PWNED!!

[SMQ]

A bit offtopic, but just how does one pronounce "pwned", anyway? I tend to go with the Welsh and make it "pooned" as in spoon, but maybe "poned" as in own or "pawned" as in, well, pawned, is more common?

IBM counter sue

[northcat]

After this is over, and if IBM wins, will it sue SCO for wasting its time and money? (I'm sure there is some more important sounding legal term for suing someone for wasting my time and money in court)

Re:IBM counter sue

[iainl]

If IBM wins, there won't be much of a SCO to counter-sue, frankly.

Re:IBM counter sue

[jobsagoodun]

Er, they already have and thats one of the claims the judge said 'not now, maybe later' to in this judgement! CC10 is Counterclaim 10.

IBM have also been sending out subpeonas to lots of folk latley giving rise to speculaiton that they are going to go after Canopy as well as SCO during the 'peirce the corporate veil' burn the villages and salt the earth stage after SCO lose this bit.

Re:IBM counter sue

[Entrope]

It is pretty standard for both complaints and cross-complaints to include a prayer to award costs. SCO's complaint and IBM's response both did that. Even if IBM had no cross-claims, after winning on the merits of the current suit, they could use a malicious prosecution suit to recover their costs.

Re:IBM counter sue

[lcam]

What's more is the rustlin in the Canopy Hen House. William Mustard (Canopy's Rent-an-Exec) is counter suing a couple of ex-Execs. That whole fiasco may well be Canopy's best line of defense. I don't know if it would really matters but you never know that type of ineptitude one party might accuse the other to try and defend itself.

They saw the tide go out and they are preparing themselves for when the tide comes back.

Is the question where does IBM thinks they can reach the most money, or how they can "rubber stamp" the validity of linux in the market (or both)? Of course I presume they are motivated by money but that doesn't mean that linux is a bad bet.

Re:IBM counter sue

[Locke2005]

First rule of tort law: don't sue any entity that has no money to pay the judgement!

Re:IBM counter sue

[Hasai]

Maybe not, but if they can manage to put together sufficient evidence of collusion (LOTS of subpoenas going out right now), look for IBM to go hunting for those entities who backed SCO in this FUD fiasco.

Heh; this reminds me of the last time someone really pissed-off IBM. As I recall it was some idiot named Manzi, over at a firm called Lotus.

];)

This has been dragged out too long

[OwlWhacker]

I'm surprised that SCO has been allowed to get this far without any evidence.

Anybody could claim similar things about any company, negatively affecting that company for months on end. If the claims are finally dismissed as false, damage has still been done to the defending company.

Is this justice?

Re:This has been dragged out too long

[cybersaga]

You can sue for legal costs. My mother's accounting firm is doing so with the Canadian Customs and Revenue Agency for dragging on a fraud investigation for years, when there was no fraud to begin with.

But apparantly, some judges are taking some action against frivolous lawsuits already.

Re:This has been dragged out too long

[Anonymous Coward]

great way for her to lose more money, if they believed that there could have been fraud then they did nothing wrong.

"Loser pays" would not deter SCO

[dcavanaugh]

Considering main benefits of the lawsuit from a SCO point of view:

• Cash from MSFT & SUNW
  
• Postpone bankruptcy
  
• Pump the stock so as to create an escape path for investors
  
• Hopes and dreams of a buyout
  

In this case, losing the lawsuit will bankrupt the company, no matter who pays the cost. If you accept bankruptcy as inevitable, and you get all of these benefits with a frivolous lawsuit, where is the deterrent? Unless the SCO gets the royal smackdown from the SEC and a whopper shareholder lawsuit, Darl and his buddies will parachute to safety.

Re:"Loser pays" would not deter SCO

[bradkittenbrink]

While I agree SCO needs to be "smacked down", I don't think that will solve the problem of frivolous lawsuits. SCO's lawyers need to be disbarred. They're the real criminals here. They've known for some time that they had no evidence, yet they continue to drag things out. I don't know what the requirements on getting someone disbarred are, but this should be one of them. Making an example of these lawyers is the real way to prevent it from happening again. Failing companies will always want to roll the dice with lawsuits like this, it's their lawyers' responsibility to tell them they have no case.

What's in this all for SCO?

[ghoti]

This question has probably been asked before, but: Why is SCO doing all this? If they know they can't win (and let's assume that that's the case for a moment), what can they gain with these lawsuits? I simply don't get it.

Re:What's in this all for SCO?

[Anonymous Coward]

I think that this whole SCO case is just FUD backed by Microsoft. I don't have references at hand, but I think it has been shown before that M$ has given financial help to SCO. It is just an attempt to get PHB's to not buy Linux versions since they might get sued by SCO. Even if SCO looses in court, the idea that buying open source products might lead to law suits will still be in the public's mind.

Re:What's in this all for SCO?

[TrueJim]

I don't know why they're doing this, but I've tended to agree with others and wonder if:

(a) SCO started this because they thought they could get IBM to buy them, making all of the SCO executives rich, but then

(b) when IBM clearly signalled it wasn't going to fall for that old trick, SCO had to keep making a strong public appearance of a credible case in order to avoid getting sued -- or worse, SCO executives jailed by the SEC for some form of stock fraud. I.e., if they lose to IBM in a fair trial the executives can claim they honestly thought they had a case. If they simply give up and admit they never had a case, then what kind of legal attacks from shareholders or the SEC might they they open themselves up to? At this point, mayby Darl is just trying to avoid personal liability and an assault on his own personal assets.

Re:What's in this all for SCO?

[Undertaker43017]

IMO, SCO was convinced to start these lawsuits by some other entities. It wouldn't surprise me if said entities even produced SCO's original "evidence" that they were showing off at their trade show.

SCO would have been an easy target for manipulation, since they were still pissed about the whole Monteray project falling apart.

The motive: Looking back 15+ years to the, AT&T v. Berkeley case, which ultimately had the effect of slowing (almost killing) the adoption of *BSD and helping SysV. The entities helping SCO would love to see the exact same thing happen to Linux. Unfortunately, for them, it looks like that scenerio isn't playing out this time.

As for SCO continuing on... I think their stuck without a "dance partner", and they really are lost.

Re:What's in this all for SCO?

[Hungry Admin]

SCO stockholders (like Darl) win by propping up the stock prices so they can make money from speculators - there is a very large upside if SCO were to "win the lottery" and get a judgement against IBM.

But the real winners - no matter what the outcome of the case - are Microsoft and SUN, who stand to gain whenever they can spread Fear, Uncertainty, and Doubt about Linux.

Microsoft surely didn't expect SCO to win. But MS supported the lawsuit with money anyway, since it hurts Linux in the business world. Microsoft doesn't care if SCO goes down the drain in the process. The money spent is a pittance to Bill Gates. The return on investment is huge. The downside is practically nonexistent.

Bill Gates is still the best marketer around. Never forget that.

Re:What's in this all for SCO?

[Curunir_wolf]

Well, you have to look at the big picture. A lot of people blame Darl McBride and his ilk as the perpetrators, but they are just pawns is a bigger stakes game. The real architect behind the SCO lawsuits is Ralph Yarro, until recently the head of Canopy Group.

Ray Noorda, the guy who built Novell in the '80's and '90's, is the good guy in the battle. He got Yarro kicked out recently, because the guy was siphoning money out of the Canopy Group to the tune of $120 million dollars for himself and his cronies.

Noorda is suing to try to get the money back, and Yarro is counter-suing - get this - claiming Noorda is senile, and didn't know what he was doing when he fired him (Noorda is 80 years old now - his daughter has been fighting Yarro for years).

So SCO is just a toss-away for Yarro to build up his own personal wealth. Maybe he needs a few more vacation homes. He'll sacrafice another Canopy Group company when SCO has been crushed (if he can regain control).

Support Noorda in his effort to maintain control. When he takes control of SCO's litigation, he'll drop all of the customer suits right away (I can't see him supporting a policy of suing customers).

Re:What's in this all for SCO?

[rkhalloran]

>>When [Noorda] takes control of SCO's litigation, he'll drop all of the customer suits right away (I can't see him supporting a policy of suing customers).

Problem at this point is that dropping the suits would open them up to fraud countersuits from all corners.

The only settlement I can think that would suit IBM would involve most of the current SCO management's heads on poles outside the IBM legal department with an inscription on the order of "sic semper morons".

Re:What's in this all for SCO?

[Anonymous Coward]

I wonder if collusion can be proven between MS and SCO combined with a countersuit against SCO for over a frivilous case if they could in turn sue MS for damages?

Re:What's in this all for SCO?

[Vitriol Angst]

I'm hoping that IBM sues SCO for extortion. I don't want SCO to just go away--I want to see them punished. They damaged a whole market with baseless claims and caused companies to lose contracts because of fear of lawsuits. It is a total abuse of the courts and they should be an example. This sort of action is antithetical to progress in a capitalist society.

The corporate officers should see some jail and lose some golden parachutes in my opinion.

Re:What's in this all for SCO?

[mcc]

Let's ignore for a moment the question of who "convinced" SCO to do this, or trying to guess people's motivations or other things we can't prove. Here's a statement that one can make flat-out, without theorizing, and simply based on publically available facts.

SCO almost certainly would not have been able to litigate their case this far were it not that Microsoft Co. donated $16.6 million dollars to SCO and their legal case, and arranged an investment of $50 million more through Baystar.

SCO chief Darl McBride has been up front about the importance of Microsoft's funding, direct or otherwise.

"A year ago we had $6 million. Now we have $60 million, with $50 million of that coming in through the investment. We have a war chest to defend our rights, to fight our claims in the courtroom," he said earlier this year, adding that the cash is enough for the long haul. "We think the legal battles we have won't even go through half that amount of cash, even played over a multiple number of years."

Most of that cash is now gone: SCO paid most to its law firms and to retire BayStar's preferred stock.

We obviously cannot know for absolute certain who or what inspired SCO to do all this. We can however make some interesting statements about who funded them.

Re:What's in this all for SCO?

[Kwil]

The initial impetus was probably as stated. They wanted to get bought out. Darl was looking at things in too narrow a view. He saw it as IBM seeing this case being more trouble than it was worth and ending it quickly and painlessly. He and his executive cronies would walk off with a nice settlement cheque and have some ammunition against other companies.

What Darl failed to think about was IBM has been around long enough it doesn't just think short-term anymore. IBM recognized that this would be the death of a million stings.

As soon as Darl realized IBM intended to crush them instead of settle, it became a game of delaying so that he had enough time to pump & dump his stock on anybody gullible enough to not really look into the facts.

Things have simply gone too far for them to give up. If they turn around now and say "Uh.. we have no evidence.." they open up the road for shareholder lawsuits, which can effect them personally. Essentially, Darl stuck his head in the noose when he opened the suit, but has now realized that yes, IBM will take the time to haul his ass into the air on it.

So my bet now is that they've been hoping the judge will get pissed and shut them down before they've had to expose themselves as having nothing all along. That might protect them from the shareholder suits that will undoubtedly follow. (Along the lines of, if we'd only had the chance.. but now we have no money to press forward) In essence, letting IBM yank on that noose before Darl has to show that it's tight.

Except I think this judge is canny enough to see what's going on. So he's giving every opportunity for Darl to tighten up that noose. What's going to be interesting is when the judge finally lets IBM put its weight on the other end of that noose. We may see Darl's head pop right off, not just SCO's.

Re:What's in this all for SCO?

[oconnorcjo]

If they simply give up and admit they never had a case, then what kind of legal attacks from shareholders or the SEC might they they open themselves up to? At this point, mayby Darl is just trying to avoid personal liability and an assault on his own personal assets.

REDICULOUS!

Let us say that this scenario has any validity... If that was the case Darl would be A LOT MORE low key in the press. If Darl and gang had kept everything mum, in the end NOBODY but SCO and IBM would have known about the case and IBM could have even seriously thought about settling or buying out SCO. But instead SCO forced IBM to defend its honor and give them the royal ass-whup treatment.

They wanted to cheat and they made every move to get what they deserved (slammed). The only justification is that Darl is a sociopath who has finaly been caught and should go to jail for:
1. destroying a linux company:

A. Backstabbing Caldera development

B. Backstabbing the kernel developers

C. Backstabbing Caldera customers

D. Backstabbing Linux's #1 corporate ally(IBM)
2. Starting a pump and dump scheme:

A. Yelling about ownership of licenses it did not own.

B. Claiming that Linux infringed on copyrights.

C. Yelling that they had TONS of evidence that will force IBM to give them billions for the alleged leak of code/contract/etc.
all in the hopes that IBM will buy them or that stockholders will believe them.
3. Firing ("or destroying" any reason to stay) the people that were doing real work at Caldera before Darl became CEO and hatched his evil plan.

Caldara might still have a future if the CEO office was still held by Mr. Love (real name) instead of Darl McBride. Darl McBride has shown how quickly a company can be destroyed when a REALLY REALLY bad CEO is at the top.

Re:What's in this all for SCO?

[qeveren]

So... the movitation is that they're purely evil? Somehow I think greed is more likely than sociopathy...

Why? Re:I think IBM appeals the discovery now

[voss]

Why would IBM need to appeal? Basically
all the judge said is "Your reqest for complete victory before trial is premature, but if SCO doesnt show something more and soon you might get it"

Re:Why? Re:I think IBM appeals the discovery now

[timster]

IBM would appeal the discovery order, as he said. That's the order that requires IBM to come up with every change ever made to AIX code during development.

Re:Why? Re:I think IBM appeals the discovery now

[mcc]

If I'm not mistaken they don't even have to appeal the discovery order to the 10th circuit-- just to Judge Kimball. The way I understood it the discovery order against IBM was issued by Judge Wells, the magistrate (amusingly, with a justification of "to appease the rote objection by SCO"). IBM has the ability to appeal this order to Judge Kimball, the judge, and probably will at least for the purposes of receiving clarification (the order was a little vague). I believe they have not done this yet.

Evidence in the US?

[Anonymous Coward]

I thought you just needed to frighten enough people!

Re:Evidence in the US?

[Anonymous Coward]

That only applies for politicians.

*ring ring* Hello, Obvious?

[MarkEst1973]

This is SCO! Long time, no talk! I'm afraid we don't have much of a case. Well, I'll call you again when we're in bankruptcy court.

*hangs up*

I'd say it except . . . .

[theparanoidcynic]

The SCO case has been "doomed" and "just about done" for like a year now. How long does it take to bury a frivolous case in the federal courts anyway?

For a bunch of slashdot nerds....

[big-giant-head]

Our assesment of SCO's case is amazingly similar to the Judges. Maybe we're not such a bunch of losers after all.

Besides we know that M$ is bankrolling all of this, so it was never about making money.

Re:For a bunch of slashdot nerds....

[Tjoppen]

Or maybe he's a fellow loser?

Get the champaign out

[greppling]

I think the paragraph just after the one quoted in the /. summary is even better:

...despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment [in favour of IBM].

I am not even a paralegal, but these seem pretty strong words to make by a judge before he has decided a motion. Sounds like starting to count down the K.O.

Re:Get the champaign out

[RKThoadan]

Just to be technical about it. He did decide the motion (No to IBM's partial summary judgement), but said they should feel free to try again once discovery is completed, and implied that he would probably grant it then unless SCO finds some real honest to God evidence. He pretty much gave SCO the benefit of a very large doubt that they might finally find something, which is pretty much what he is supposed to do on a Summary Judgement Order.

Any bets as to how much more SCO will try to stall discovery now?

Re:Get the champaign out

[swillden]

...despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment [in favour of IBM].

Even more interesting is what this says about Darl's repeated assertions that there's compelling evidence before the court that the public just can't see. He and other SCOX execs have repeatedly told the press that their case only looks bad because we can't see all of what the court sees.

I guess he's seeing something that the Judge missed?

Re:Get the champaign out

[Alsee]

I guess he's seeing something that the Judge missed?

Oh Darl is definitly seeing things that the judge doesn't... but I think the explanation probably has something to do with LSD.

-

Re:fucking furries!

[cybersaga]

Read this guy's sig

Manipulation, pure and simple.[nt]

[n4vu]

(filler text)

Evidence ... when will they show us?

[Living WTF]

I guess the will show us the complete evidence "real soon now" or "when it's done".

Re:Evidence ... when will they show us?

[MrNemesis]

It's official - the evidence will be released along with the new Debian Stable, along with DNF ;)

Ditty starring Darl McBride...

[tod_miller]

creative commons license written by yours truly. (see last verse)

Obligatory "Princess Bride" Quote

[MooseByte]

"What is this word "evidence" you speak of?"

Judge (in the voice of Inigo Montoya): "You keep using that word. I don't think it means what you think it means."

Re:Obligatory "Princess Bride" Quote

[michrech]

"What is this word "evidence" you speak of?"

Judge (in the voice of Inigo Montoya): "You keep using that word. I don't think it means what you think it means."


INCONCEEEEIVABLE!!

Re:Obligatory "Princess Bride" Quote

[R2.0]

I thought that was Andre the Giant's character?

Re:Obligatory "Princess Bride" Quote

[Wybaar]

No, Andre the Giant played Fezzik. Inigo Montoya (played by Mandy Patinkin) was the one who gave the quotes the parent used. Look at the 15th quote on this IMDB page.

I wouldn't

[penguinoid]

I'd love to hear the judge say "Liar, liar, pants on fire!"

I wouldn't. Much as I hate SCO, I would rather the judge not be (or even appear to be) biased against them, as this would mean restarting the lawsuit from scratch.

Why is David Boies famous?

[mithras the prophet]

I'm sure Boies is in fact a very competent and well-accomplished lawyer. But these are the famous cases I know he's been involved in:

• for IBM, defending against the US Govt: lost
• for the US Govt, against Microsoft: lost
• for Al Gore, against George Bush: lost
• for SCO, against IBM: on the way to losing

So it seems like he's lost both for and against IBM, and for and against the Government. That's pretty good!

Re:Why is David Boies famous?

[Anonymous Coward]

Largely true, except for #2 - he won the US Govt vs Microsoft case. The case was then taken over by different lawyers (with the incoming Bush administration), and the new lawyers lost some of the appeals, although the core of the case was upheld.

I don't know about #1. What case are you refering to? The original anti-trust case against IBM was dropped by the Reagan administration, so I"m guessing that's not the one you're talking about.

Re:Why is David Boies famous?

[Anonymous Coward]

In the end MS was held liable on seven AT charges. I agree with you hardly a loss for Boise.

In the end MS 'won' because of a sell out at a political level but to suggest Boies lost is ludicrous.

Re:Why is David Boies famous?

[Anonymous Coward]

He won all 4, money-wise...

Champagne

[Anonymous Coward]

Champaign is a city in Illinois.

Re:Champagne

[kurt555gs]

And it is the birthplace of Internet Explorer , M$ did'nt write that either.

yayy! Down with FUD!

[Anonymous Coward]

Down with FUD! Down with FUD! (chant with me)
Ohhhhh, SCO's done it again,
upset the Fed's and a finally, OHHhhhh finally
must open their secret FUD den to reveal the truth...

Down with FUD! Down with FUD!

how bout some dap

[Blacklantern]

to all the slashdotters that said, "you'll make a killing if you short their stock!"

Re:how bout some dap

[Hieronymus Howard]

If you'd shorted their stock when it was above $20, you would have made a killing. It's flattened out now, so shorting is too risky, unless it's someone else's money.

Re:how bout some dap

[shanen]

You can't short a stock below $5 (on that exchange), and SCOX hasn't seen that price for a *LONG* time--and won't.

Yeah. Get this...

[Anonymous Coward]

Lawyers police their own integrity. Haha.

Anyway, like anything else pressure can be brought to bare. I think an organization like the Parents Television Counsel (a small number of well organized right wing loons with enough free time for letter writing) that would pick and choose which lawyers should be disbarred could create a distributed attack, with enough visability to put enough of them in Maytag boxes to get something of a critical mass going. But the big mistake would be to be reasonable about it. Persue it with extreme overzealousness in an effort to actually destroy their livelyhood. Cruel, inhumane, but effective, and ultimately I think the dividends of improved integrity would be worth it. But the risk is that an organization like that might become a kind of amoral monster itself.

David Boies

[hrieke]

won.

$50 million in the bank (from SCO) and they don't even have to go to court to defend what they had to have known as being undefendable. Lovely.

Re:David Boies

[Anonymous Coward]

If there is blatant lying, one can pierce the corporate veil and go directly at the directors and other profiteers.

SCO's bluff is called

[saddino]

I have always believed that SCO was well aware that the merits of their case, in terms or real evidence (not just a handful of "similar" header files), was not sufficient to win in court.

Darl McBride and his minions decided to go for the gambling "long-shot" that so many litigants see as an ample victory: getting the defendant to, in a cost-benefit analysis, decide its better to settle out of court.

In SCO's case, their gamble had a nice silver lining: not only could IBM decide to settle, but in doing so (or if others believed they would do so), SCO could then easily extract miliions upon millions in licensing fees from Linux installations during and perhaps after the suit. Clearly, they tried to do this and from the numbers, failed miserably.

So, SCO put all it's money on black to get in the black, and their number is increasingly looking red which of course will put them in the red, and effectively out of business.

That's what happens when you gamble without a whit of common sense.

Re:SCO's bluff is called

[Anonymous Coward]

It is important to remember that Darl and his minions have actually won.

They have been selling stock left, right and centre, and will have golden parachutes ready. They have successfully gutted a company that didn't really have much relevance in today's business world.

They knew what they were doing, and they knew what was going to happen. SCO is heading down a path they prepared.

The real story here...

[frieked]

...is that there is still going to be a case. The judges statement was in response to IBM's request for a summary judgement which would have put an end to all this. The simple fact that the judge denied IBM's request means that this case is far from over.

TheRegister gives a more newsworthy story here:
http://www.theregister.com/2005/02/10/sco_d odges_b ullte/

Re:The real story here...

[Stanley Marlowe]

Correct link here.

Re:The real story here...

[Trailer Park Boy]

The summary judgement was denied because it was "premature". IBM can refile or renew the motion at the close of discovery. It's true that the case is far from over, but unless SCO coughs up some competent evidence of disputed facts, summary judgement is inevitable.

Re:The real story here...

[Brent Nordquist]

*snort* Nice URL there Reg...

Re:The real story here...

[Anonymous Coward]

oops, sorry about that, guess I should use preview first

Re:The real story here...

[Brent Nordquist]

Sorry if I wasn't clear. You posted the URL correctly. It was The Register that got the URL spelling wrong. :-)

Most Googled Company

[mestreBimba]

I read an article yesterday stating that SCO was the most Google searched company during the last quater.

They must live by the any press is good press moto, as by any way you measure it their visibility is way up.

Now if their case only had a little merit......
1)Try to lciense open sources software.
2)Sue the hell out of everbody when your case has no merit.
3)??????
4)Profit

Will it work for SCO?

Duh!

[catdevnull]

We've all been saying the same thing all along--prove it or STFU. McBride's poker face is probably gonna crack now that he's gotta show his cards. It will be interesting to see what SCO ponies up next.

Go after the lawyers

[Anonymous Coward]

When something like this happens, they really should go after the idiot lawyer that brought the case to court in the first place. If there really was a good reason to think there was a case that would be one thing. However in a case like this everyone knew they were blowing smoke, including their council by many of the statements they have made. They should be disbarred and IBM should be able to sue them, even personally for criminal misconduct. The criminal misconduct being a pump and dump scheme on wall street. Book 'em Danno! Maybe we could use the Patriot act since they were terrorizing end users like Autozone and Mercedes Benz's american unit. Sent them to gitmo!

Now I hope we finally will stop getting notifications of their broken software in bugtraq. I mean, who is usuing their stuff anymore except them (or have they upgraded to RH or SuSE)?

For SCO's benefit

[rumblin'rabbit]

You may be assuming that the judge's comments are some kind of punishment for SCO. Actually, it's for SCO's benefit.

The judge may feel that it is his responsibility to let a participant know when part or all of its case is not measuring up. It gives SCO an opportunity to address the deficiencies in their case.

Far fairer to put a warning shot across the bow then to have your first shot blast their mainmast into splinters.

William Shakespeare said it best

[harley_frog]

"The first thing we do, let's kill all the lawyers." -- Henry VI, part II, act IV, scene ii

Re:William Shakespeare said it best

[Knuckles]

IIRC, it is said by a despot who wants to make people's lifes worse not better. Whatever the US has done to its legal sytem and the people working in it, let's not forget that actually _having a legal system and lawyers was a big step forward

Re:William Shakespeare said it best

[M. Gordian]

We lawyers sometimes misquote that as "The first thing we do, let's kill all our clients." Then, after thinking about how we need to pay off student loans and make house payments, we revise it to: "First thing we do, lets kill all the morons who blame everything on lawyers." SCO, not SCO's attorneys, are the owners of SCO's claims. Attorneys are ethically obligated to adhere to their clients wishes to the extent possible within the limits of the law. If this mess could rightfully be blamed on SCO's attorneys, I have no doubt that the attorneys on the other side would have already sought appropriate sanctions against them from the court.

Action without cause?

[C_Kode]

Kimball also took issue with SCO's varying position on exactly how it believes IBM violated SCO's copyrights. Initially, the company said it would argue that IBM infringed SCO copyrights by moving Unix code to Linux. But when SCO filed its main claim, it argued merely that IBM infringed only by continuing to ship a version of Unix, called AIX, after SCO said it had revoked IBM's license to do so.

They claim one thing, revoke the license then take them to court saying they are selling without a license and discarded the claim that the license was revoked for? You cannot revoke a license without cause then sue because they are still selling that license.

Re:Lets do a slight modification of that

[Ironsides]

Gah, need to proofread what I type. But I'd still like to know how that was flamebait.

Manipulation

[rkhalloran]

This stock is very narrowly held, for the most part by funds playing the "lawsuit lottery". If you track the trades, they're "laddering" small-lot trades among themselves to make it look like somebody's actually interested in this pile of steaming sewage. There's been a consistent work-up early in the trading day, followed by a slideoff and then flatline in the afternoon.

It fell to $4.00 in pre-open trading, then promptly jumped up to around 4.60 at the opening bell, expect a close around 4.25 today. It's been consistently following this pattern the last coupla weeks.

Re:Manipulation

[Piquan]

If you track the trades

How do you do that?

Re:Manipulation

[rkhalloran]

Visit any of a swarm of sites that track stocks. Also the Yahoo Financial board for CALD (old ticker symbol) regularly posts trading logs so the interested observer can see the ratcheting-up of the price using trades of 100-500 share lots.

still: all motions are denied

[qcomp]

This is just to point out that despite the encouraging language, the judge denied all of IBM's motions to strike material or for partial summary judgement, saying the latter would be premature. He says, that further discovery (especially all versions of AIX since the beginning of the world... ;-) might still prove SCO's point. Hence, we'll see more delay. But still, i guess that generosity by the judge now will make the eventual defeat more difficult to appeal. What's one more year of SCO vs. IBM?

Re:still: all motions are denied

[Hieronymus Howard]

You're right. If you read the actual text of the ruling the judge says that a partial summary judgement at this stage would be easy for SCO to appeal and that's why he's denying it. He does make it very clear that SCO HAVE NO EVIDENCE!

Re:still: all motions are denied

[iabervon]

The motions to strike material he ruled to be moot, because he didn't actually use the material and it only applied to a motion he already resolved. The motions for partial summary judgement he denied, but without prejudice, which means they can make them again later. Since he's given his reasons for not granting the partial summary judgement, and they are likely to be settled before the case goes to court, this only delays things until after discovery.

For that matter, it makes sense; IBM didn't ask for a summary judgement which would end the case entirely and make discovery moot. Despite what the article says, the case wouldn't really fall apart if IBM got their motion, because the claim that SCO is still maintaining is that IBM breached a contract to not do certain things, even though those things wouldn't violate copyrights. They're suggesting that they might find a contract with IBM that says that IBM agrees not to do any development on big systems that isn't the project they started with SCO and Dynix. Since discovery has to continue anyway, there's no reason to make partial summary judgements with less information than will be available later. Otherwise, SCO would be sure to turn something up during discovery which they would claim (falsely) pertains to the judgement, and it would have to go to an appeal to be argued.

Criticism != Bashing

[Anonymous Coward]

All dislike is not prejudice. Some is well founded.

Nah. Any and all critique can be dismissed as 'bashing' whereas any and all praise is considered justice.

Works for MS and their sock puppet SCO. Both when cornered by facts that point to their disadvantage start shrieking "you're just [SCO||M$] bashing".

That's response is just a form of ad hominem attack. Forget about it and stick with the facts. They hate the facts.

A new customer is me

[Southpaw018]

In addition to several references in the IBM case, SCO also put the claim at the center of its lawsuit against Linux user and former SCO customer AutoZone.

I didn't know that. I'm switching to AutoZone, effective immediately.

Re:How will SCO spin this? WTF? SCO won!

[walterbyrd]

IBM's request for PSJ was denied. SCO won, IBM lost. It's groklaw and slashdot that are spinning this.

The Utah judges make speak harshly to scox, but in the end, they can't bring themselves to rule against their favorite little msft backed Utah company.

For the record: Scox won, IBM lost

[walterbyrd]

I can hardly believe the spin here, and on groklaw.

The judge may scold scox until he's blue in the face, to try to appear impartial. But the bottom line is that the judge ruled in favor of scox. IBM lost.

Re:For the record: Scox won, IBM lost

[ebrandsberg]

Huh? How do you get that?

Re:For the record: Scox won, IBM lost

[Oswald]

I believe he means the judge's refusal to grant summary judgment.

Re:For the record: Scox won, IBM lost

[wes33]

yes; go read the judge's decision. IBM's claims are denied. However, the judge explicitly says IBM can refile later and the judge has pointedly indicated that if SCO doesn't come up with something good this time, they are toast.

all evidence

[Anonymous Coward]

'"Especially when you're talking about the danger of having summary judgment or even partial summary judgment granted against you, it's pretty difficult to think of a reason you would withhold all of your evidence," Levy said.'

Perhaps they have given the judge all their evidence?

zotz

WW3 Begins in...

[arkanoid]

3... 2... 1... And all life on Earth extincts...

Next up: sue the legal system

[panurge]

There's only one way for SCO to go. SCO has to sue the United States government for allowing the creation of a corrupt judicial system that doesn't immediately recognise the validity of their case, denying their access to justice.

Unfortunately the US doesn't recognise the ICC, let alone an international civil court. But there is a simple answer! They can sue in the courts of the sort of country that really appreciates the kind of thing that SCO and co. bring to the table, and has the kind of lawyers and officials that really understand the problems of people like McBride. North Korea, Belarus, Zimbabwe, Iran - I'm sure they'd love to host SCO vs United States of America.

Fedeal judges don't call federal judges biased

[Anonymous Coward]

Unless there is some issue of financial malfeasance a harsh opinion by a lower court, especially one which is actually going for the party which is being criticized would never be viewed as a reversible issue. Civil cases in federal court are a whole other ball game from what you see on tv. A higher court may be critical of a judge's analysis and reverse on those grounds but would steer clear of implying prejudice unless it was so blatant as to be unavoidable.

Maybe only plaintiff should pay

[roguer]

So what if the "Loser Pays" rule applied only to plaintiffs? That would mitigate a lot of the bullying-by-lawsuit behavior.

Of course, this is not a perfect solution either. It would become much harder for the little guy to use defensive lawsuits to stop other out-of-court MegaCorp bullying.

Defense expense caps? Perhaps defense caps relative to plaintiff's expenses? Nah, too easy for the plaintiff to cheat by lowballing her expenses.

So it's not easy. But it is worth exploring.

after all is said and done

[AviLazar]

I would like to see IBM (and other companies) sue SCO for slander & liabel acts as well as for some kind of compensation for the law suits.

I can understand if SCO had a valid claim - but there should be something in place for frivolous lawsuits...many companies spent a lot of money defending themselves in court and in the media due to SCO.

Now just to clarify - i am not saying, that in every case - if a plaintiff loses they should have to compensate for the legal fees...but if a judge determines that a case was frivolous, then the plaintiff should have to pay. People will think twice before suing...they might actually ask "is my case valid?"

IBM is already countersuing

[LuSiDe]

Afaik you can't sue someone for 'wasting time and money' or something similar. You can't get the money back either because you have to pay your attorneys yourself in the USA.

I read a number of interesting posts on Groklaw though. One included a mention that SCO has to pay *3rd party* analysts to hunt for 'the proof' in AIX which they aren't able to find. Now that IBM will have to give SCO full access to all interim revisions of AIX as well they'll have to pay these experts even *much more*. It seems thats SCO's last chance. After that, they're done.

As for IBM countersuing, they already do that, but with other arguments than the ones you state.

* Patent infringement (on several key products of SCO)
* Copyright infringement (since SCO distributes the Linux kernel whereas SCO doesn't accept the GPL)
* Lanham Act (trade libel, in effect)

Here's the post explaining them in detail: http://www.groklaw.net/comment.php?mode=display&si d=20050210075456474&title=Unfortunate&type=article &order=&hideanonymous=0&pid=274063

Just a second there, fella!

[roguer]

George Bush was not yet "the government" when Boies lost Gore's case. If anything, VP Gore was "the government" in this case.

ehh?

[RelliK]

for IBM, defending against the US Govt: lost

He successfully dragged out the case for decades until it became irrelevant and DoJ gave up.

for the US Govt, against Microsoft: lost

He won the case. He was not involved in the appeal, which was still won, despite Bush administration's best efforts. But that didn't stop DoJ from settling with MS on really ridiculous terms.

for Al Gore, against George Bush: lost

Yeah, he lost when 5 republican-appointed supreme court judges outnumbered 4 democrat-appointed judges. What exactly can a lawyer do about that?

for SCO, against IBM: on the way to losing

You're kidding, right? He (or his associates) have managed to drag the case out for two years without a shred of evidence. Think about it, he is handling a case in which there is no chance of winning on merits, even the judge is saying that SCO has no evidence, and yet the case drags on. To SCO delay = win, so in that sense, he is winning.

Make no mistake, SCO has some of the best lawyers.

Re:ehh?

[R2.0]

"Yeah, he lost when 5 republican-appointed supreme court judges outnumbered 4 democrat-appointed judges. What exactly can a lawyer do about that?"

There's more to it than that. He lost the meat of the case 9-0 or 8-1 regarding overturning the FLA Supreme Court decision to recount only some counties. He lost that at a very specific point, when he stated flat out that ballots in different jurisdictions would be counted with different standards.

The 5-4 decision was on whether to terminate the recounts completely, as opposed to recounting the whole state. Was it partisan? Possibly. But your comment implies complete partisanship - the Republicans voted solely because of their party, and SO DID THE DEMOCRATS. If you truly believe all of the Republicans voted out of crass politics and all of the Democrats voted out of law, truth, and purity of heart, I have a business deal I'd like to discuss with you involving a Nigerian businessman I know.

Re:ehh?

[damsa]

Souter was appointed by George Bush Sr. He voted to recount.

Re:ehh?

[angle_slam]

Yeah, he lost when 5 republican-appointed supreme court judges outnumbered 4 democrat-appointed judges. What exactly can a lawyer do about that?

Actually, 7 of the current justices were appointed by Republicans. Souter and Stevens are usually considered among the "liberals" on the bench, but both were appointed by Republicans (Stevens by Pres. Ford and Souter by Pres. Bush I).

Re:ehh?

[LtOcelot]

If you truly believe all of the Republicans voted out of crass politics and all of the Democrats voted out of law, truth, and purity of heart, I have a business deal I'd like to discuss with you involving a Nigerian businessman I know.

They didn't, of course, but the effects were the same as if they had. There was a right side and a wrong side; the 4 were in the right, and the 5 were in the wrong. A shame, but it happens all the time.

Re:ehh?

[k98sven]

He (or his associates) have managed to drag the case out for two years without a shred of evidence. Think about it, he is handling a case in which there is no chance of winning on merits, even the judge is saying that SCO has no evidence, and yet the case drags on. To SCO delay = win, so in that sense, he is winning.

First: Why would delay = win? SCO is the one bleeding cash. IBM is doing just fine.

The judge is also handling a very large case, with a relatively big number of claims and counter-claims ranging over contract issues to copyright issues to patent issues.

The average duration (from filing to ruling) of a federal civil case (years 1978-2000) is 725 days. Two years that is.

Is this case going to go on longer than average? Yes, but it's also a larger-than-average case. Are SCO dragging their feet? Yes.

But it's not the exceptionally long case that somehow showcases brilliant legal manuvering.
(Besides which, it's not like it's difficult to ask for an extension.)

Re:ehh?

[Xyrus]

Exactly. Lawsuits are like war. Just because you lost, doesn't necessarily mean your opponent has really won.

~X~

In related news...

[dual_boot_brain]

Mr. Magoo gets LASIK.

Only in a Slashdot fantasy can a Slackware install

[crovira]

turn into several hours of sex . . . . .

Darn. And I've got friends coming over this week-end. Oh well...

Breach of contract?

[Locke2005]

Initially, the company said it would argue that IBM infringed SCO copyrights by moving Unix code to Linux. But when SCO filed its main claim, it argued merely that IBM infringed only by continuing to ship a version of Unix, called AIX, after SCO said it had revoked IBM's license to do so.

But, if IBM did not infringe SCO copyrights, then on what grounds did SCO revoke their Unix license? Wouldn't SCO revoking a license without good cause constitute breach of contract on SCO's behalf? Seems like IBM might still end up owning SCO...

Re:Breach of contract?

[fishbowl]

>Seems like IBM might still end up owning SCO...

They might already have it in the can.

See, SCO made a lot of noise about how their evidence that was provided to Judge Kimball under seal, was a slam dunk. They tried to bluff the public, Judge Kimball didn't appreciate this and has stated that SCO has no such dunk, slam or otherwise, and he didn't even use diplomatic words to say it.

So, IBM already has what they need to seek damages against SCO for misrepresenting and fabricating facts, and making false statements that did damage to IBM's reputation. SCO tried to do more damage to IBM than they are worth.

Judge Kimball is being careful, in order to avoid making a procedural error that would allow this case to be appealed. He's hinting that he would, if he could, judge against SCO right now, but since the law requires it, he will sit through the rest of the trial and follow the procedures. I think SCO has pushed him past the end of his patience, and esentially lied about the evidence they gave him. He obligation to remain impartial only goes so far. He must give the case a fair hearing, following the rules of evidence and civil procedure that apply to his jurisdiction, and ensuring that the due process rights of each party are not abridged.

LOL

[suezz]

can't stop LOL - this was nothing but a pr stunt by microsoft and maybe sun - don't know yet - but would like to think it wasn't sun. I hardly remember any talk about Intellectual Property (IP) before this lawsuit - that is when microsoft's, and the yankee groups started throwing the term around and press caught wind of it and started to spread the fear. This is just how microsoft will die when their day comes - they will be sueing people left and right and won't go down without a fight. But i will probably never live to see that day - they just have too much money.

flamebait???

[turbosk]

WTF?? I am making a legitimate comparison/analogy, NOT baiting or trolling. The two situations are almost IDENTICAL. You've got two groups of megalomanics who are hyping trumped-up cases where there is obviously an agenda to push, and no grounds to go forward, so they're relying on Fear, Uncertainty, and Doubt to try and bully the masses.

FFS!

Make an argument to disprove me, I'm willing to listen to reason.

Re:flamebait???

[Anonymous Coward]

Flamebait -- Flamebait refers to comments whose sole purpose is to insult and enrage. If someone is not-so-subtly picking a fight (racial insults are a dead giveaway), it's Flamebait.

turbosk's comment is NOT flamebait!

Re:flamebait???

[Anonymous Coward]

WTF?? I am making a legitimate comparison/analogy, NOT baiting or trolling.

The article is about SCO, not Bush. Trying to pick a fight by using an off-topic dig at Bush is the very definition of "Flamebait".

I just marked the Flamebait mod as "Fair" in meta-mod.

Try to control yourself in the future.

Re:flamebait???

[turbosk]

The point of my original post was that (unfounded allegations with zero proof) is exactly the same whether GWB is doing it or SCO is doing it. That cannot be "off-topic", since the very topic of my post is (unfounded allegations with zero proof). I am not *trying* to pick a fight.

If by "controlling myself" you mean not pointing out near-identical situations because they may be politically charged, then no, I won't be "controlling myself" anytime soon.

If you're not outraged, you're not paying attention.

Ummm no

[big-giant-head]

A Federal Judge is as close to being THE Man as you can get. No not a Man, THE Man (for these purposes women can be considered THE Man also), the person that can have u tossed into jail almost indefinately for contemp. They can make laws of congress null and void with a single decision. Oh yeah and baring any overtly criminal behavior they have thier jobs as long as they want.

So, it is by definition impossible to be 'The Man' and a slashdot loser at the same time.

NAZGULS? (nt)

[Matt Perry]

NAZGULS?

Re:NAZGULS? (nt)

[Alsee]

Wikipedia: Nazgul
You want to skip down to the "Modern slang" section at the bottom. Afterwards you may (or may not) want to read the entire page to get a better feel for the origin.

Note that IBM's lawyers are considered the heros here. Nazgul purely characterizes what IBM's lawyers are like to anyone foolish enough to go up against them.

-

Quit Slamming the Lack of Evidence...

[Nom du Keyboard]

Quit slamming the lack of evidence...

...and just dismiss the d@mn case, awarding lawyer fees to the defendants!

No Amount of scolding...

[Anonymous Coward]

Changes the fact that SCO won. IBM lost their summary judgement. The judges statement that it is premature is a joke. If there is no cause for the case it shouldn't even go to trial. If the summary judgement was unrelated to the issue to be tried then it could be granted (as it is). Clearly the judge is in favor of SCO. He is only using the strong language to cover that fact. There are a lot of sealed records in this case (which some are trying to get released). So there may very well be dirt/blood on IBMs hands. There is no need for discovery to continue, when no facts have been presented, but we don't know all that has been presented.

In the end, SCO are IP scumbags, no one who believes in real freedom likes what they are doing, but if IBM has cheated them they deserve their day in court and to win. I doubt that they will get the $5bil, but they may get a pound of flesh out of IBM, rightly or wrongly. And then they deserve what is coming via the Novell trial which is to be stripped of what they gain from IBM. And wouldn't that make a sweet ending.

Re:No Amount of scolding...

[fishbowl]

>IBM lost their summary judgement.

You're being impatient. This judge is trying to make sure there won't be any grounds for appeal. After he has ordered discovery, it would be improper for him to call it off without following proper process. So he has tabled these motions until discovery is complete. But I don't see how you can interpret Kimball's blunt statement that SCO presents no competent evidence, either what's been made public, or the stuff that was sealed.

In fact IBM may have grounds to seek compensation from SCO based on damage to IBM's reputation, because SCO made public statements asserting that the evidence that was under seal would support their case against IBM. We now know that to be false.

SCO still has a chance to present evidence. Because the discovery period isn't closed, SCO gets a little more rope.

But you seem to think that by not granting IBM's motions, it has cost IBM. The judge is merely taking careful, calculated steps to be certain that his decision will stand. No doubt, he started out in this trial as an impartial arbiter of justice, but no judge will remain impartial when he has been lied to by a party to a trial. No there won't be any perjury charges coming, and no, Boies won't be disbarred, but SCO has made outrageous public claims about the strength of their evidence. They really shouldn't bluff like that when the judge sees their cards.

And today he has told them, and us, exactly that.

This case might stand or fall on the evidence required by IBM's tenth counterclaim. It's the put-up-or-shut-up claim. SCO, lay out every line of code on which you have a claim, now, or forever hold your peace.

That hasn't been dismissed, and it won't be. Read the memorandum: The judge is not procedurally empowered to rule on the matter at this time, because the filing of the claim is premature. A procedural error of any consequence at all could easily send this case right back to square one. Kimball wants to have the last word on it, and he's making sure he gets it.

It won't be pretty for SCO.

Split decision, yes. Good for SCO? Hardly.

[Rorgg]

There were six motions:

1. SCO wanted a dismissal of IBM's 10th counterclaim. Flatly denied, the court says it's relevant to the main case and will be covered.

2. IBM's 10th counterclaim for a finding of non-infringement. Denied, and this one has the "SCO's shown no evidence yet" language. The only reason covered is that discovery's not done yet. The judge doesn't even use the word "deny." He says "the court cannot grant summary judgment to IBM given the posture of this case at the present time. However, IBM is free to renew or refile its motion on its Tenth Counterclaim after the close of discovery."

3. A SCO motion relevant to the 10th CC was rendered moot.

4. IBM trying to strike the motions of Sontag, et al. This one is a loss for IBM, but it's not relevant to the case itself. The judge's ruling indicates that they're relevant only at this point in regards to the recent discovery motions. They have no relevance to the actual facts of the case.

5. & 6. IBM looking for PSJ on the 8th counterclaim and SCO's breach of contract claim. Again, like the 10th, "many of the claims and counterclaims are dependent on the resolution of other claims and that judicial economy is not served in this action by entertaining dispositive motions prior to the close of discovery." No comment as to the validity of the argument.

I count there one minor loss for IBM, one minor loss for SCO, one thing ruled irrelevant, and 3 items delayed. That's a push at worst. Add in the actual text, and it's very clear SCO's in a lot of trouble unless they come up with something in the extended discovery.

scox will be bankrupt before discovery is done

[walterbyrd]

Discovery isn't even supposed to over until November. And that's in the unlikely event that it doesn't get pushed back again.

Scox will simply go bankrupt, and go out of business, and never go to trial. Just like they planned all along.

But the the *ruling* favors scox.

[walterbyrd]

IBM's motion for PSJ was denied.

These judges often speak harshly towards scox (maybe to appear impartial) but they always rule in scox's favor.

Re:SCO ...

[Anonymous Coward]

When we think about FreeBSD, we can't help but be
reminded of DeForest Kelley's prescient observation:

It's dead, Jim.

The REAL story...

[ewe2]

As with many of the reports, The Register only got half the message: sure, IBM doesn't get its cake now. But there's nothing to stop IBM refiling that submission after discovery. To be blunt, SCO has to put up or shut up. It has to pay lots of money to outsiders to do the discovery work, which may well trigger their lawyer's fee limit, that means Boise and Co. drop their client. Even after all that, if SCO still can't show anything substantial, IBM refile their summary judgement request, and this time it's airtight. No appeals court in the land will conceivably grant SCO another go.

The simple fact that the judge denied IBM's request means that no loose end will be left dangling for SCO to slide out on. And IBM haven't even started with their side. Groklaw has, as usual, far more meat to these bones for the picking.

Re:Lets do a slight modification of that

[Daengbo]

The mods are on crack... No surprise. But, hey, I got -2 flamebait for mine, too, insted of the offtopic that I expected. ;)

New Section?

[Jukashi]

Now that the editors are realizing the dupes and still posting them, perhaps we should have a Dupe Section ?

Gone Fishing?

[mhollis]

Based on my reading of the documents everything is, of course, up for grabs in the actual trial. Some judges will tongue-lash one side or another when they don't think they have done their duty as either plaintiff or defendant. This has everything to so with the quality of motions filed as well as the "homework" lawyers are supposed to do "before the Court" which means the judge wants to see them work up a sweat.

But this is beginning to look more and more to me like a "Sue first and use the discovery process as a fishing expedition to see if they did do what we suspect" case. In the case of Paula Jones v William Jefferson Clinton, Ms. Jones lost her case but Mr. Clinton lost more.

I think this happens more than one might think -- especially in corporate suits where one corporation wants another to spill its guts and make its secrets public record.