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

[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

[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

[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.

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?

[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."

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

[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.

SCOX pre-trading down

[rylin]

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

Still no reaction...

[Vo0k]

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

wow

[Anonymous Coward]

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

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

[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

[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

[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

[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

[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

[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

[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.

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

[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.

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.

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!"

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.

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...

[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.

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.

"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: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.

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.

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.

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

[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: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.

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

[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.

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.

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

[MrNemesis]

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

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.

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/

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.

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.

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.

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.

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?

[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).

In related news...

[dual_boot_brain]

Mr. Magoo gets LASIK.

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.

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.

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.