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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.
http://finance.yahoo.com/q?d=t&s=SCOX
pre-trading says it's down 5%
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.
$1399 after 13 October 2003.
Mr. T pitied this fool on 27 July 1992.
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.
Panic now, beat the rush!
- 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!four nine eighteen twenty-7 thirty-nine forty-7 fiftyeight sixty-nine seventy-9 eighty-8 one-hundred-and-nine one-twenty
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.
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.
I have seen the future, and it is inconvenient.
...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.
d odges_b ullte/
TheRegister gives a more newsworthy story here:
http://www.theregister.com/2005/02/10/sco_
I have often regretted my speech, never my silence.
-Xenocrates
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.
I appear to have a blog. Odd.
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.
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?
"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_.)
Dear Slashdot: next time you want to mess with the site, add a rich-text editor for comments.
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.
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.
___
If you think big enough, you'll never have to do it.
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.
Y|
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.
---- Den ene knappen er powerknapp, den andre er Bender voice knapp "Bite My Shiny Metal Ass"
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.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
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.
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.
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.
>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.
-fb Everything not expressly forbidden is now mandatory.
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.