IP Attorney - Why SCO Has No Case

OSS_ilation writes "In an interview over at SearchOpenSource.com, IP attorney Thomas Carey shoots down SCO's cases against IBM and Novell, but predicts that SCO will fight a losing battle to its last. IT directors shouldn't worry about SCO Group's latest sallies in its legal war on Linux vendors IBM Corp. and Novell Inc., Clarey says, and explains why SCO has no case, predicts the open source legal fields of battle for 2006 and discusses SCO's claims against Novell. Carey chairs the Business Practice Group of Bromberg & Sunstein LLP, an intellectual property law practice in Boston, Mass." Groklaw, as always, has additional details and commentary on this.

Comments

Questions of fact and of law

[RevMike]

Unless the case is totally without merit it has to go to a jury. You know that entitled to be judged by a jury of your peers.

It has nothing to do with merit, but it has to do with what kind of outstanding questions are involved with the case.

The American civil law system divides the questions that come up during a litigation into two categories: fact and law. Judges are responsible for deciding questions of law. Juries are responsible for deciding questions of fact.

If the facts of the case are not in dispute, and the case solely hinges on the interpretation of law, the judge will rule on the case directly. On the other hand, if the facts of the case are in dispute, the judge will instruct the jury to decide the facts and the judge will apply the law to the jury's finding of facts.

The fact that the case hasn't been dismissed is because the judge is not satisfied that there are no relevent facts in dispute.

Re:Questions of fact and of law

[shaitand]

I know that in criminal cases the jury is empowered by the constitution to judge the merit of facts AND the merits of the relevant laws in their decisions. The supreme court has ruled on this matter as well, determining that judges have no obligation to inform juries of this right but also that juries have it. Judges use this to justify instructing juries that they must rule according to the letter of the law.

This may be different for civil cases.

Re:Everybody knows that...

[whoever57]

If IBM wanted to get the case dismissed they probably could ... but they want it to go to trial for a couple of reasons.

I don't think so.

IBM submitted a number of motions for partial summary judgement and the judge either denied them or refused to consider them until after completion of discovery.

If IBM could not get a partial judgement, it's rather unlikely that IBM could make the entire case go away, short of paying off SCO.

Re:But of course

[Anonymous Coward]

Cases generally aren't simply dismissed. Unless someone files a 12(b) motion (likely 12(b)(6): failure to state a claim), you're going to have the entire mess of discovery here. As long as there is some vague basis for a lawsuit, it's going to have to wait until there is an effective summary judgment motion.

Re:Anti-gravity

[Anonymous Coward]

Its painfully obvious who the only party is to benefit from and who also has plenty of cash to help finance this mess.

I used to work in the server hosting business and I remember all the fuss when EV1 bought a linux site license from SCO for somewhere around $1m. I heard there were some people from Microsoft visiting them a little while before this happened. Supposedly, the folks from Microsoft were helping EV1 develop an automated provisioning system. But the rumors I heard was that Microsoft fronted the money for the SCO license in effort to help fund this never ending charade.

I havent taken the time to do it myself but I bet if you look at SCO's major stockholders you will find some ties to Microsoft.

Re: PSJ motions likely coming back

[rkhalloran]

The judge's dismissal of IBM's motions for partial summary judgment were based on discovery not having completed yet. He made comments at the time that indicated he would be quite willing to revisit them once discovery had closed.

That was on Dec 22. Expect them to resurface.