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.

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.

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?

[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

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.

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.

Re:How will SCO spin this?

[Undertaker43017]

That's easy:

"IBM's summary judgement denied!"

They will just ignore the other stuff.

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.

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.

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.