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

[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

[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.

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...

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

[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

[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.

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

[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.

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

[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.

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?

[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?

[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.

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

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?

"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.

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: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:IBM counter sue

[iainl]

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

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: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.

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: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.

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.

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.

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.

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

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!

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?"

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.

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.