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SCO Denied Motion To Change IBM Case Again
Rob writes "SCO Group Inc's attempt to change its legal case against IBM Corp for the third time
has been denied by the judge, who has also set the two companies a deadline to present
their respective evidence with specificity. Despite repeated public declarations
that it has evidence Linux contains Unix code that infringes its copyright, SCO
has yet to present any evidence to the court." Bad news for them all around, lately.
Don't investors typically eventually say "ain't gonna happen" and walk away? Is there an obvious reason why this hasn't happened yet?
I am a
There's a lot of discussion on Groklaw about what happens when tSCOg goes bankrupt.
The minute tSCOg loses the first of the many cases it has going, it goes bankrupt. Its fate is then in the hands of the bankrupcy trustee and the creditors. My guess is that all the cases then get settled out of court on terms agreeable to the creditors. In the case of IBM this means a declaration that Linux is totally unemcumbered by anyone's Unix IP.
Judge Kimball is on to them.
We non-lawyers think of judges as impartial watchers of the courtroom. Sometimes they are. Most of the time, though, they pick a winner and spend the rest of the case guiding the decision the way they think it should go and covering themselves for appeal.
That's how it's been with SCO v IBM. After months and months without any credible evidence, after seeing the SCO group twist his words and the words of Magistrate Judge Wells (who's handling much of the pre-trial bickering), he began to take on a more aggressive tone. He hasn't been on IBM's side, but it looks like he has seen the inevitable result and is trying to make sure his decision doesn't get turned over on appeal.
So when The SCO Group tried to amend their complaint based on an out-of-context reading of IBM's Ninth Counterclaim (a request for a ruling that IBM didn't infringe SCO's copyrights), he said no, that the counterclaim must be read in context. He said they were just delaying. if he thought they had a snowball's chance in July, he might have allowed the change.
Raise your children as if you were teaching them to raise your grandchildren, because you are.
SCO's new motto:
No evidence, no customers, no future.
(And the only way you can convince me that Daryl McBride isn't a worthless cunt is by providing a signed statement from a gynacologist)
And that friends, is where the nuts hit the grinder.
If brevity is the soul of wit, then how does one explain Twitter?
Basically when Santa Cruz and IBM worked on the project known as Monterey in the late 90s, it was understood that both companies would use code developed from the joint venture in their products. SCO claims that IBM used the jointly developed code on Power based machines when the original agreement only specified that IBM could use it on Intel machines. They filed in October 2004 to change the claim to add this to the current suit. They wanted more discovery and time to pursue this new claim.
In the current lawsuit, the deadline for changing the claim was February 2004. Under certain circumstances, a party can go beyond deadlines but only for "compelling reasons." SCO's compelling reason was (1) they "just discovered" this fact and (2) IBM filed a counterclaim (9th) that requires them to research it.
IBM's answer to the court was convincing and many fold. They produce documents, emails, presentations, public announcements from Santa Cruz as far back as 1998 that describe how IBM was to use code from the joint project in Power. They also produce IBM public presentations, software documentation, and public announcements about the same thing. Finally they presented industry reports and discussions from tech magazines both online and offline from 2000 that discusses IBM's use of the code. IBM ironically points out that SCO provided some of this source material to IBM in the lawsuit filings.
IBM's message is simple: (1) Santa Cruz knew. If SCO is the legal and corporate successor to Santa Cruz, then it is SCO's duty to know everything that Santa Cruz did. (2) Since SCO provided some of the material, SCO had to know since 2003 when they filed the lawsuit. (3) Even if SCO was totally clueless about Santa Cruz's materials and it's own filings, a simple search online up to 4 years ago would have uncovered the fact that IBM was going to use the code in Power.
As far IBM's 9th Counterclaim, IBM chose to reduce/clarify the scope so that it was not as broad and SCO's new claim would have no relevance.
On a side note, one of IBM's statements is interesting:
SCO wanted to convince the judge that no more discovery would be necessary to add this new claim saying that they had already done a lot of work. But IBM asks the question: If they have compared our closed source AIX with their Unix, why do they claim they couldn't compare open source Linux with their Unix without our AIX source code?
Well, there's spam egg sausage and spam, that's not got much spam in it.
Welcome to the strange world of Quantum Intellectual Property Infringment. Consider yourself introduced to the McBride Uncertainty Principle, whereby you may know the exact speed at which SCO's claims are changing, or you may know the exact location of the (currently) infringing property, but you cannot determine both with any precision. The harder the courts look, the more difficult they are making it to find. The courts cannot decide without both a claim and its matching proof, so this is not the path to resolution. The court's only hope is to measure the validity of a quanta of infringement claims, and make a single decision that acts on all of them.
Fred
"A fool and his freedom are soon parted"
-RMS
Dad is a Federal circuit court judge (former Chief Judge of the 8th Circuit Court of Appeals) and my cousin is on the Michigan state bench. That's the Honorable David R. Hansen and the Honorable Katherine L. Hansen, respectively. Dad was appointed to the state bench in 1976 by the (Republican) Governor Robert Ray; he was appointed to the Federal bench for the District of Northern Iowa in 1986 by President Ronald Reagan; he was appointed to the appellate bench by President George H.W. Bush. Officially, Dad has no political party--he's not allowed to, as part of the Federal code of judicial ethics--but I think you can probably figure out from his appointment history that Teddy Kennedy doesn't send him Christmas cards.
My cousin Katherine, on the other hand, was appointed to the Michigan state bench by Governor Jennifer M. Granholm. Governor Granholm, as you are no doubt aware, is so far in the left wing of the Democratic Party that she was honored with floor time at the last National Convention. I'm not sure whether her judicial ethics allow her to have a party affiliation or not, but... you can draw your own conclusions.
Why does this matter? Because whether I look at a Federal judge repeatedly appointed by Republicans, or whether I look at a State judge appointed by a dyed-in-the-wool lefty Democrat, I see the same thing: namely, brother, you are wrong, and have no idea just how wrong you are.
Judges try very hard to be impartial in all hearings... impartial to the point of rudeness. If you step into court and claim that the sky is blue, both Dad and Katherine will interrupt you to ask whether you're going to introduce meterologic testimony into the record attesting to that fact. (Well, Katherine would probably have the good grace to wait until you were finished. Dad's approach is the kinder of the two, though; when Katherine quietly pulls the rug out from under your feet, thoroughly confounding the last ten minutes of your argument, you long for the rough kindness of an interruption.)
It makes it hell trying to have normal conversations with them, by the by; they have a very hard time disengaging from judicial-think. When I say that I think I did well on an exam, Dad wants to know precisely what evidence leads me to that conclusion. When I talk to Katherine and mention that I have a paper submitted to Black Hat 2005, Katherine doesn't say "that's nice"; she insists that I sit her down and teach her enough computational theory so that she can decide for herself my odds of getting published.
Both of them live and die by a mantra: neither one of them gives half a damn what you know, they only care what you can prove.
Nor are they "watchers" of the court in any sense. They are the administrators of the court. They're the ones who decide the ground rules of the court hearing. They decide these ground rules based on pleadings; attorneys for one side say that under one Supreme Court ruling, the standard for evidence should be this, while attorneys for the other side say that decision didn't foresee this particular eventuality and it should be discarded. Only a fool would claim they are "watchers". They are not combatants in the courtroom, in the sense of trial lawyers, no, but they are both the arbiters of fairness and the executors of decisions. If you're able to convince the judge of a fact, then brother, your job is done. At that point the other attorney isn't fighting you anymore, he's fighting the judge, and that's a fight the other lawyer is--with greater than 90% certainty--going to lose.
Impartiality is difficult to attain. The best solution judges have found, either on the Left or on the Right, is ruthless, r