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IBM Says SCO Willfully Failed To Detail Evidence
Robert wrote to mention a piece on CBR Online where the latest volley in the SCO case is covered. IBM is now accusing SCO of having acted in bad faith when they opened the trial against IBM, by being purposefully vague in their evidence. From the article: "All in all, according to IBM, SCO's evidence filing makes it impossible for the company to defend itself. 'By failing to provide adequate reference points, SCO has left IBM no way to evaluate its claims without surveying the entire universe of potentially relevant code and guessing ... Since only SCO knows what its claims are, requiring such an exercise of IBM would be as senseless and unfair as it would be Herculean.'"
Since the general opinion seems to be that SCO is simply attempting to cause discord in the unix market, is this really so suprising?
Lets look at the facts here, SCO is filing lawsuits all over the place, being very vague on the specifics of the lawsuit, all of which ties the courts up and drags out the cases. There is a lot of publicity about how *NIX variants may be breaching all these copyrights, IP's, and licenses, which in the long term reduces confidence in *NIX since consumers can't be sure that the product they are investing money in may suddenly get pulled.
IMHO the money M$ has pushed towards SCO is entirely related to this case, by tying these vendors to the courts and reducing consumer confidence people are more likely to buy M$ products rather than face the risk of getting hurt with the outcome of these lawsuits.
I think these cases should all be thrown out, SCO has a fairly damning track record of lawsuits for the sake or lawsuits, regardless of the validity of the claims.
GeekServ Unix Consulting Services (http://www.geekserv.com)
The goal of SCO's intentionally vague requests seem to be to essentially consume the defendant's resources. It's more a fishing expedition than a court case, and falls in line with SCO's FUD strategies.
My sig is too lon
As a defendant, their job is solely to disprove the other side's case.
SCO doesn't have a case. I don't mean that their claims have no merit, although they don't. I mean they have literally not actually made a case. They have refused to sit down and say 'This is our code, and this is where you illegally copied it into Linux.'.
If corporations are people, aren't stockholders guilty of slavery?
What I find really enjoyable is the more-aggressive stance IBM's lawyers have taken in recent filings.
Not trying to call them pansies for their actions in the past, and clearly they understand the US court system far better than I ever hope to; but I know I'm not the only one that has been frustrated by all the shenanigans that SCO's lawyers and management have been allowed to pull since this thing started three freekin years ago.
But IBM hasn't pulled any punches lately, going for the jugular with this reply memo and its requests for discovery (asking for details in SCO's relationship with Baystar is gonna reveal beaucoup scummage, imho).
Anyone have a deathwatch-type clock running for SCO?
Try not. Do... or do not. There is no try. ~Yoda
How can it be possible to put a corporation to tens of millions of dollars of direct legal costs and hard to estimate indirect damages without ever needing to demonstrate any evidence of a case to answer? Judge Kimball, himself, stated in his decision on summary judgment (over 18 months after the case was originally initiated) that it was "astonishing" that SCO had provided no evidence, in spite of all their public pronouncements, but then said it was premature to render a decision because SCO might still be able to find some evidence somewhere of some wrongdoing through the discovery process. This has been explained as necessary to avoid the risk of SCO later making a successful appeal.
It seems to me that the US legal system is designed to make money for lawyers and the interests of the parties themselves is purely secondary. I fear comparison with the 19th century British system lampooned so sucessfully by Dicken's Bleak House is not kind to the current US legal system.
Once you keep in mind that the law firm SCO hired (BSF) is there to wear people down and force them to settle out of court, all of their tactics make sense. IBM on the other hand has been playing a very clean, very professional game and has been methodically boxing off SCO's avenues of attack over time. I beleive the issue at hand as to how the two sides are conducting their suits comes down to this: SCO is trying to chisel some money out of IBM. IBM is out to win.
Architectural plans are like computer source code with a couple of differences: You only compile once.
I think you've missed the point. IBM is perfectly aware of how to compare code for potential copying.
What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against.
And here is IBM's point, that SCO has not, in fact, actually identified documents which they claim are infringing, leaving IBM the task of having to, essentially, do SCO's work for them by searching their entire UNIX codebase, all of it, looking for code that infringes.
And that's just not how it works. SCO, in order to make a claim, has to, well, actually make a claim. i.e. IBM did this and this here and here which infringes. IBM only has to answer to the claim and demonstrate its falsity with documents relating to the specifics of the claim; and only the specifics of the claim.
The court does not do any of this. It isn't any of the court's business. The litigants do this and their lawyers present their arguments to the judge and jury and only documents presented at trial have any relevance to actually deciding the case.
SCO is trying to play a liable until proven not liable game, making IBM do the work to produce the evidence against themselves. Against a nonspecific claim. The justice and logical problems involved in this are the very reason the founding fathers adopted the innocent until proven liable way of doing things.
SCO: Somewhere in the known universe IBM possesses an invisible pink something or other. We don't know what that something or other is though, until IBM produces it for us, but as soon as they do we'll claim it's ours.
IBM: We cannot show the entire universe to the court to demonstrate our non possession of an invisible something or other.
SCO is seeking liability on the part of IBM by the above argument.
IBM is simply saying that SCO needs to say exactly what they allege IBM possesses and where they claim it is to be found, along with their evidence supporting the allegation. Then, and only then, can IBM actually defend themselves against the claim by showing the court that SCO's presented evidence is false by presenting evidence of their own.
IBM is more than willing and able to apply the methods you outline, as soon as SCO legitimately identifies what code the test is to be made against.
Certainly IBM can be compelled to produce evidence for SCO's use, that's what this is all about, but you might want to go read the Fourth Amendment for the basic rules on the legal limits of such compulsion.
Think about it. How would you defend yourself against the claim that you had murdered, someone, sometime, we don't know who or when, but you did it?
The fact is you couldn't, unless you could account for your actions over your entire lifetime to a legal certainty.
Criminal and civil rules are different, but in this case they are close enough for hand grenades, as the rules for both are based on the same legal philosophy.
To wit, the accuser must present evidence supporting the claim before the case can even go forward to trial, and the accused need only defend themselves against that evidence. It is the reponsibility of the accuser to identify any evidence that may be held by the accused. The accused need only defend themselves against the claim, not be compeled to twist their own hanging rope.
KFG