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

[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

[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.

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...

SCOX pre-trading down

[rylin]

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

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

[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

[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.

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.

I'd love to hear the judge say

[EvilNutSack]

"Liar, liar, pants on fire!"

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.

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.

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.

"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:This has been dragged out too long

[cybersaga]

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

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

Re: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: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.

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.