IBM Motion to Limit SCO Claims Granted

Kalak writes "IBM's motion to limit SCO's claims to those that have specific version, file and line numbers has been granted, in part. At the end of last year, SCO made 294 allegations. IBM asked for dismissal of 198 of them due to lack of this information, 1 SCO withdrew, 1 IBM withdrew from the request, and 185 of them have been dismissed from the case. This leaves 107 of the charges are left to be addressed by means other than lack of specificity (such as public domain, BSD code, who owns it, etc.) As usual, Groklaw, has discussion, as well as the Order and an excellent chart of the history of alleged violations has been created as well."

Comments

Granted IN PART

[Anonymous Coward]

There were 10 claims that IBM objected to that were not barred.

Re:Granted IN PART

[Monokeros]

21 actually

SCO made 294 claims.
IBM objected to 198 of the claims.
Judge Wells allowed 17 of IBM's 198 disputed claims and barred the rest.

That leaves 117 of SCO's 294 claims standing. ~66% gone.

1 really damn good read. Judge Wells's order was fantastically fun.

Re:Granted IN PART

[Monokeros]

GAH! I corrected you and screwed up the numbers myself.
Judge Wells allowed *11* of IBM's 198 disputed claims (23, 43, 90, 94, 186-192) and barred the rest.

IBM- doing the right thing?

[beheaderaswp]

I hope that people appreciate the fact that IBM didn't just lay down on this suit and settle by dumping some money. They could have, and they can afford to do so. But rather, they are playing this out in a manner where there will be a ruling- a ruling where I predict Linux code will be vindicated.

I'll be an IBM customer for a long time due to this. And Whether IBM means it as some grand "do good gesture" or not is meaningless.

The resolution of this will mean that the US will not fall behind in Linux Development. Which they could- assuming the legality of Linux changed here- but not elsewhere.

Go IBM!

Re:IBM- doing the right thing?

[Anonymous Coward]

IBM isn't completely evil. They aren't completely good either.

Don't read much into them defending themselves, if it was a few million dollars, it would be done. It was a few billion, they might be able to afford it but you're not going to get a billion dollars from them without a fight.

Re:IBM- doing the right thing?

[rts008]

Since I don't currently have mod points..... MOD THIS ONE INSIGHTFUL!!!

Okay, got that out of my system, but, really, if I had the MODPOWER of /., you would get some +insightful, and + some interesting with this post.

Someone please think of the mod points ( f*sk the children!)

Re:IBM- doing the right thing?

[tomhudson]

Don't read much into them defending themselves, if it was a few million dollars, it would be done. It was a few billion, they might be able to afford it but you're not going to get a billion dollars from them without a fight. No - even if it was a "few million" it wouldn't have ever been done, because IBM knows that once someone does it to them, others will try the same tactic.

To put it into its proper perspective - they wouldn't have done the deal even for a few thousand.

Also, in the beginning SCO was making noises in the background of "about $25 million" and IBM basically tod them to FOAD.

Re:IBM- doing the right thing?

[alshithead]

I'm glad IBM obviously hired some very expensive, very good, lawyers and/or has a very talented team of in house lawyers. You can bet they worked very hard and were very expensive. I love to see a company work so hard for an ethical goal as opposed to a profit goal...even though the lawyers also profit excessively.

Re:IBM- doing the right thing?

[kwanbis]

totally agree with you. Go IBM!

Re:IBM- doing the right thing?

[Pharmboy]

I love to see a company work so hard for an ethical goal as opposed to a profit goal..

wtf. IBM couldn't afford to work so hard on what you call an "ethical goal" if they didn't spend most of their time working hard to actually make money.

I am all for the best of ethics and conducting business in a fair and open way, but there is nothing even remotely wrong with making a profit. It is how jobs are created, stock dividends are paid to your 401k, and why they can invest in new technologies.

Your statement clearly indicates that you think a company working hard to make money is just "wrong". You seriously need to rethink this. Working hard to make money is a GOOD thing, not a bad thing.

Re:IBM- doing the right thing?

[alshithead]

Actually, I meant what I said..."I love to see a company work so hard for an ethical goal as opposed to a profit goal."

That is because I hate to see big business/corporate shills running our government to the detriment of our personal freedoms. IBM, like all companies that size, wields incredible influence in legislation that gets passed that directly or indirectly affects their bottom line. While IBM certainly recognizes the potential for future sales in its stance, that doesn't change the fact they are supporting a position that most of us are happy about. There is no guarantee that the money they are spending on this effort will be recouped in future sales. I'd like to hope that someone in power at IBM actually gives a shit.

Re:IBM- doing the right thing?

[Anonymous Coward]

I don't think IBM gives a whit about ethics or the future sales from this crowd. Most of the fanboys shining IBM's codpiece here don't even really have a clue what IBM sells anyway. It's more of a question of not being shaken down by failed technology company that IBM may have done business with. You'll note that IBM has not officially reacted to this as a FUD issue.

Re:IBM- doing the right thing?

[honkycat]

I don't think his statement means what you interpreted it to mean. When a company works for an ethical goal -- one that is primarily motivated by doing the right thing rather than making money -- it is surprising. There is no surprise when a company works for a profit goal, since that is what companies are expected to do. This doesn't mean that profit goals are unethical, just that it's not particularly interesting when a company goes after a profitable target that happens to be ethical.

It does seem that perhaps it would have been cheaper for IBM to have settled long ago rather than fighting this for so long. You can make a reasonable case they're standing up for Linux because they don't want to see SCO make off with ill-gotten profits. I'm not totally sold on that interpretation -- it's also quite possible that they've done an analysis and found that settling the lawsuit would be more expensive than many slashdotters seem to estimate so they're just making a rational fiscal decision.

Personally, I hope that it's the former, because I agree with the original poster. It warms my heart to think of a large company motivated by something other than the bottom line. It doesn't happen often, but it is possible.

Re:IBM- doing the right thing?

[BigFootApe]

An ethical code of conduct is important for a business. It creates a sense of trust in the client base which stabilizes markets. That trust is also important for strategic relationships with other businesses.

Think of it like a farmer caring for his soil. Sure, he might squeeze a little more yield out in the short term, but he'll pay down the road.

Re:IBM- doing the right thing?

[DrSkwid]

> Think of it like a farmer caring for his soil. Sure, he might squeeze a little more yield out in the short term, but he'll pay down the road.

Yeah, imagine if they used gallons of Monsanto insectiside, fertilizer and GM seeds instead of the organic systems they use now!

Re:IBM- doing the right thing?

[flafish]

IBM hasn't reacted to this offically as a FUD piece? Where have you been hiding? Under SCOG's rock? Read the court filings. IBM has called it what it is about on several occasions, FUD. And what it is, is about spreading "fear, uncertainty, and doubt" for a company that some of the money has been traced back to.

Re:IBM- doing the right thing?

[deKernel]

I'm glad IBM obviously hired some very expensive,...

Little bit of information here, IBM did not go _OUT_ and hire the lawyers. IBM keeps people like than on retainer for just such a reason. IBM is not paying out that much more compared with the dollar amount that they would have payed anyway.

Don't get me wrong, I am glad that IBM is not rolling over.

Re:IBM- doing the right thing?

[alshithead]

Do you know for fact they used only in house lawyers? Typically, many large corporations hire law firms for specialty legal needs despite the fact they have plenty of in house lawyers. Usually some of the in house lawyers will work in conjunction them.

Re:IBM- doing the right thing?

[Anonymous Coward]

> IBM has called it what it is about on several occasions, FUD.

Slightly ironic seeing as how the term was coined expressly for IBM.

Let's hope they stay good.

Re:IBM- doing the right thing?

[drinkypoo]

They certainly are fighting the good fight here, although I think the only reason they didn't just buy/takeover SCO is that they didn't want to encourage other people to threaten them. I still hope IBM gets ownership of Unix at the end of all of this; when they sue SCO into a smoking hole in the ground as an example to others who would threaten them. I think it might hasten the demise of Sun, who I see as being nothing more than a complication of the market. Pains in the ass, and they're in the sack with Microsoft more than ever these days, so I'd like to see them gone.

Re:IBM- doing the right thing?

[awkScooby]

It does seem that perhaps it would have been cheaper for IBM to have settled long ago rather than fighting this for so long.

Cheaper in the short term, perhaps. But, in the grand scheme of things, the next SCO wannabe will probably think twice before picking a fight with IBM, given that IBM doesn't just give in and go the cheaper route. IBM is going to put SCO out of business. If you don't have a rock solid case, you really don't want to pick on IBM. If you pick a fight, they will fight back. Even if you do have a rock solid case, you still probably don't want to mess with IBM...

It's a deterent, like mutually assured destruction was in the cold war, only in this case it's not mutual...

Re:IBM- doing the right thing?

[BigFootApe]

Yeah, imagine if they used gallons of Monsanto insectiside, fertilizer and GM seeds instead of the organic systems they use now!

More like doing the fall work with a match.

Re:IBM- doing the right thing?

[chickenandporn]

I don't buy a certain watch just because a certain athlete wears it -- I tend to read the product information myself.

For the same reason, I read the information related to the brief, I didn't just skim the unbiased (ha!) reporting of PJ.

Did we ever, BTW, find out who pays PJ's paycheck, and why groklaw's contact address was coincidentally close to the local IBM site? And suddenly shifted to an anonymous Holding? Or do we all still think she works for free? Sure, there are a few non-SCO articles there, one or two, so now it must be above-board? Nope, my alarm clock's not ringing, not time to wake up and smell any coffee. back to the thread...

If IBM ignored the GPL, we'd be all over them; the fact that IBM ignored a corporate licensing agreement, to the benefit of Linux, suddenly that's OK. I wonder if we have let our affiliation with OpenSource bias us against the agreements that have been broken.

Have you seen the code? I'm not asking for those who feel important by saying that it would bias them against working on Linux (smell the cheese?), I'm asking: have you seen the code, and personally read all the legal work, or are you regurgitating someone else's opinion? That's all I ask. Read it yourself, all of it. Ask why SCO ever started this -- and look for the actual reason, actually try to understand.

If you paid a consultant to build something for you, and as part of the agreement, there was some other transfer of money, licenses, other agreements, and then he sells it to your competitor as well, You might be a bit unhappy about it. Your secret-sauce from your UNIX, developed as part of the agreement with a 3rd-party, has been improperly released when that third-party was purchased. How does that make you feel?

Re:IBM- doing the right thing?

[bobcote]

I had heard and agreed with the opinion that the idea from the SCO execs is that IBM would buy SCO just to shut them up.
1. Sue IBM
2. Get bought out
3. Retire rich

There's SCO business...

[Audent]

Like SCO business...

OK... taking bets now... how long before SCO goes completely?

Re:There's SCO business...

[beheaderaswp]

It's got to be sooner rather than later. The whole travesty look like a dam beginning to leak now. Let's hope it resolves cleanly, with a lot of positive press for Linux.

Re:There's SCO business...

[cmowire]

Well, here's the big question...

There's two possible reasons behind this particular lawsuit. One is because the SCO execs want to go after IBM for extortion. The other reason is because Microsoft is trying to go after Linux.

If the second is true, any actions from here may be oriented towards preventing Microsoft from being revealed as the Man Behind The Curtain, rather than winning.

Re:There's SCO business...

[Anonymous Coward]

Old SCO felt ripped off by IBM over the Project Monterey IA64 UNIX thing.
New SCO felt ripped off that they'd been cut out of the enterprise market by RedHat, with IBM's assistance.
Both businesses were folding and needed a Hail Mary.
Microsoft likely did not put them up to it, but certainly did assist them in getting capital to proceed with this.

Re:There's SCO business...

[Anonymous Coward]

You are clueless. Old SCO (Santa Cruz Operation) is a completely seperate corporation, under a different name, and has no horse in this race whatsoever.

Re:There's SCO business...

[ZachPruckowski]

There are two angles of MS's involvement, as I understand.

The first is the actual SCO licenses MS bought, right? Well, I recall reading a tiny paragraph in a magazine from around then of Ballmer mentioning having a lab studying Linux. So of course, since Ballmer was on the record saying "Linux might have IP issues!! Linux might have IP issues!!", it would seem plausible that they bought the licenses just in case ($699 is pennies compared to $125,000 per infringement). Now, we all doubt that Ballmer really believed Linux was doomed, but it's hard to prove he didn't believe what he was preaching.

There's also the Baystar loans thing, right? But isn't that an issue of interlocking directorates? I mean, at worst you could nail a few MS execs, but not MS, right?

Hope I'm wrong, because MS is IMHO backing SCO or at least cheering them on, so I hope they get hit for it.

Re:There's SCO business...

[beheaderaswp]

Zach- I think you have it wrong.

It's more likely that SCO was puppeted by MS in order for MS to avoid getting directly involved. Let's face it, MS can't get involved directly- it would be a bad thing.

After this trial, SCO may be dead- though we might see some (more) interesting IP strategies from MS and it's cronies.

Re:There's SCO business...

[Anonymous Coward]

Well, Darl's clueless, and you're clueless, but I am clueful.

Caldera did in fact believe they got some good legal dirt along with the UNIX business from SCO. Or so they said.

Re:There's SCO business...

[ZachPruckowski]

No, I agree that SCO was an MS puppet. I just mean that you can't prove that. The only real way to prove it is with the money (at least in the US). I mean, unless you have Darl's phone bugged and a recorded conversation, only really suspicious monetary ties will get anything done investigative. And my point was to show that MS can easily refute the money charges.

Re:There's SCO business...

[dbIII]

There's two possible reasons behind this particular lawsuit. One is because the SCO execs want to go after IBM for extortion. The other reason is because Microsoft is trying to go after Linux.

You forgot a third option. Darl's brother is on the legal team and vast amounts of SCO cash are bleeding directly into his pocket. Perhaps SCO was set up to lose from the day Darl started running the place. When SCO goes down, what does Darl lose? He'll just go on to the next position with the reputation of being the underdog going after IBM - and he would have won too if it wasn't for those darn commie kids and their penguin. There are plenty of places that would take him on the strength of that without looking into management ability or possible criminal behavior. I suspect we'll be hearing more about this person until he does a mini-enron at a larger company and ends up imprisoned for it.

Re:There's SCO business...

[kilodelta]

It won't go soon enough in my book. You know, Caldera wasn't a bad company and then when they bought out SCO and assumed the name, it all went to hell.

It became a money grab. That the suit has even gone on this long particularly since IBM has the funds to essentially bury SCO's attorneys in mounds of documentation that would take them decades to sort through, surprises me.

But in the end I think IBM will prevail.

Re:There's SCO business...

[AvitarX]

If they were burried in decades of documents do you think it would speed things up?

Re:There's SCO business...

[fishyfool]

the Anderer memo shines a light on Microsoft setting up the Baystar deal.

Re:There's SCO business...

[jackbird]

That is not mutually exclusive with the GP's option 2 in the least.

Re:There's SCO business...

[Zeinfeld]

The first is the actual SCO licenses MS bought, right? Well, I recall reading a tiny paragraph in a magazine from around then of Ballmer mentioning having a lab studying Linux. So of course, since Ballmer was on the record saying "Linux might have IP issues!! Linux might have IP issues!!", it would seem plausible that they bought the licenses just in case ($699 is pennies compared to $125,000 per infringement). Now, we all doubt that Ballmer really believed Linux was doomed, but it's hard to prove he didn't believe what he was preaching.

I think you are taking this all way to personally.

First I think that Ballmer is right that the way Linux people were carrying on at that time probably would lead to IP issues. There is a lot of code and not a lot of tracking going on. Today people understand that this is a bad thing, people are much more careful about accepting external code with dubioius provenance. RMS has said the same sort of thing from time to time.

Microsoft has recently settled a large number of IP cases that I personally regard as frivolous. Its not just SCO they paid off and at least the SCO people did actually have title to some actual code.

If Microsoft were being really devious (yes) and exclusively concerned about sabotaging Linux (not)they would want to do everything they could to prevent SCO bringing its case to court and finally settling the question of Linux IP. You can't do FUD without Uncertainty and Doubt.

Microsoft's wider interest is to have the case settled in IBM's favor at IBM's cost. IBM's core interest here is not simply defeating SCO, it is settling the basis on which an IP infringement claim can be made. If they allow the precedent that SCO style littigation leads to a settlement everyone in the IT industry will be facing similar 'I have a case here but I am not going to tell you what it is' lawsuits.

Windows has 100 million lines of code, much written by outside contractors. There are many people who might come along and claim that there were ten lines of code inside that might belong to them.

At this point Boies is hardly putting up a stellar performance. He has been out lawyered in all four of the high profile cases he has been involved in of late.

Re:There's SCO business...

[dmforcier]

Negative. All the $$ are going to Boies and Shiller (sp?).

this emascualtes SCO's case

[close_wait]

In case anyone isn't clear as to the significance of this, SCO have two main types of complaint: straightforward copyright violations ("ooh your honour, their errno.h looks just like ours"), and the more nebulous "methods and concepts". The judge has now thrown out most of the latter, which were always going to be the more complex to defend against. The literal copying is easy: "it's from the POSIX standard", "it's from the old System III code that Caldera put in the public domain" etc.

SCO are finished.

Re:this emascualtes SCO's case

[killjoe]

I am pretty sure they took copyright violation out a while back. All they have now are methods and concepts crap. They know they have nothing though. They are just a chess piece in the hands of MS. MS is funding this thing just to keep up the FUD and hassle IBM, they will keep doing it until the case is over and then find another stooge to do it again. It only cost them about 12 million so they definately got their money's worth from this one. They suckered a bank into dumping a bunch of money (who took it in the shorts) and that bank is probably wanting some sort of re-imbursement but still just chump change for MS.

Re:this emascualtes SCO's case

[jmorris42]

> It only cost them about 12 million so they definately got their money's worth from this one. They suckered
> a bank into dumping a bunch of money (who took it in the shorts) and that bank is probably wanting some sort
> of re-imbursement but still just chump change for MS.

You clearly aren't cynical enough. Those banks didn't lose a dime. They were laundering MSFT's money to SCOX pure and simple. Somewhere (probably in Balmer's office on well encrypted media) is a set of books showing how other payments (remember both Baystar and RBC had and still have extensive dealings with MSFT) were inflated to cover the transfer^Winvestment to SCOX.

SCO was Microsoft's sock puppet from day one. SCO was dead and they knew it so it wasn't like they had much choice, so they took on Darl and went on a suicide mission to buy Microsoft some time to come up with some strategy that might actually be able to stop FOSS other than launching the Patent Wars.

Nobody wants the Patent Wars, it is a doomsday device, once it goes off nobody can say with any certainty who survives or what the postwar world looks like. But they are increasingly being pushed against the wall and will eventually be forced to push the button. Yes they are still mighty, have annual sales in the billions and a virtual monopoly. But their stock has been flat since the .bomb crash and pressure is mounting for them to "do something." Be afraid, very afraid that the SCO trial is about over.

Re:this emascualtes SCO's case

[MarkusQ]

Great analysis. Part of me wants to say it's not as dramatic as you make it sound, but I suspect that part of me is wrong. In any case, it's crystal clear if you are, as you say, cynical enough.

--MarkusQ

Re:this emascualtes SCO's case

[rm69990]

Hows about: "Novell owns the copyrights, SCO has shown no document transfering the copyrights, SCO thus has no standing to sue"

Re:this emascualtes SCO's case

[replicant108]

"Nobody wants the Patent Wars, it is a doomsday device"

More importantly, the big patent holders don't want patent wars before software patents are properly established in Europe.

Re:this emascualtes SCO's case

[Anonymous Coward]

Glancing at "transfer^Winvestment" I thought you'd coined a new word: Winvestment. Underhand payments by MS to bolster their monopoly.

I'd like to file a motion of my own

[Junior J. Junior III]

Move to call the trial "The SCO Monkey Trial".

Anyone want to second?

Re:I'd like to file a motion of my own

[beheaderaswp]

Second-

BUT....

Does that mean it will be followed up by "Intelligent Microsoftism"?

I'll pass.

Re:I'd like to file a motion of my own

[rts008]

Seconded since I currently don't have mod points to give +2 insightful/interesting. ( yes, one of each for those curious!)

Re:I'd like to file a motion of my own

[Foobar of Borg]

Move to call the trial "The SCO Monkey Trial".

Sounds good to me. Now, we can have a video of Darl McBride dancing around and going "Woooh! Give it up for me!"

Or, perhaps you mean that IBM will ultimately get fined $50, which will be overturned on appeal.

Re:I'd like to file a motion of my own

[ClamIAm]

Well, with this news, it sounds like the scopes of the claims were changed. You could say SCO was trying to monkey with them, a trial which IBM will hopefully, in the end, pass.

Re:I'd like to file a motion of my own

[Junior J. Junior III]

Nah, it has already been proven that Microsoft doesn't design anything.

Re:I'd like to file a motion of my own

[beheaderaswp]

I KNEW someone would say that~!

Re:I'd like to file a motion of my own

[WilliamSChips]

I think that's an oxymoron.

Re:I'd like to file a motion of my own

[jcr]

Umm... Scopes lost his case, even though he was obviously right.

-jcr

IBM saw it for what it is.

[Lead Butthead]

IBM saw the entire affair for what it is -- extortion. They also knows that if they cave into one, they'll be defending themselves till cow comes home.

Re:IBM saw it for what it is.

[Hoolala]

I wouldn't bet the winner until the fat lady has sung. Sure, we all hope that IBM squash SCO, but think how long the battle has been. If it was crystal clear for everyone to see that IBM is in the right, then it should have been over by now. However, if it was not crystal clear for everyone, that means that there may be folks (judge/jury) that may get swayed by SCO. The general public does not always perceive the world the way geeks do -- nothing said about which way is better.

====

Beaches and Las Vegas Deals at http://buddytrace.com/

http://buddytrace.com/

Re:IBM saw it for what it is.

[grasshoppa]

Actually, in clear cut cases like this, where the plaintif is slimy, the judge will force everyone to cross the t's and dot the i's, creating the length of trial we see here. Further, there is a shit load of crap to go over ( purposely, I'm sure ). So this case will take a while, but it won't keep getting appealed because this judge is doing a complete job.

Re:IBM saw it for what it is.

[Hoolala]

Your logic makes no sense buddy. The judge does not just wake up one morning and decide that the plaintif is slimy. If the judge truly thought the plaintif was slimy, then the case would have been dismissed right away. Judges are not dumb. The reason it has taken so long is because the judge must have felt that the case has some merits.

Re:IBM saw it for what it is.

[swillden]

If the judge truly thought the plaintif was slimy, then the case would have been dismissed right away.

And the appellate court would throw it right back, and possibly reprimand the judge for circumventing due process. Even obnoxious plaintiffs have the right to have their case heard if it contains any merit at all, and in a complex case like this one it's rather difficult to say with certainty that there is no merit to be found. The only way to make that determination is to go through discovery, and that's what the judge has to do, even if the odds of finding something worth suing over are slim.

Judges are not dumb

Exactly. They're not dumb, and they don't like to be reversed, or reprimanded, by courts of appeals whose focus is the evaluation of the lower court's procedures, not the merits of the case.

Re:IBM saw it for what it is.

[Hoolala]

Judge sees slimy plaintif, Judge crosses Ts and dots Is so slimy plaintif does not get away seems something pulled out of a deep smelly hole of non sequitur logic... Do you have anything to backup your premises and conclusion? Again, judges are there to make judgments based on the presented facts and they need and usually stay impartial and neutral. Judges do not decide that a plaintif is slimy and therefore I need to be really careful so I can stick it to the slime and make it sticks. If you disagree, provide some real-life examples please...

Re:IBM saw it for what it is.

[alshithead]

If you think judges are always completely impartial and act that way then you need to expose yourself to more law. There's a reason judges occasionally go to jail or get thrown off the bench. They're human and therefore subject to all of our failings. In some places the law means nothing more than who you know and if you are in the judge's circle of lawyer friends. If you are, you will get decisions others who aren't in the circle wouldn't. My stepson's case is a perfect example. Without the right connections I'm sure his VERY expensive lawyer would not have succeeded in getting him another chance. He would be a naive, immature, 19 year old, 150 pound boy getting his ass pounded in state prison when what he really needed was serious psychiatric care. The prosecutor knew all of the facts but she didn't care what was right...all she wanted is to be relected. You'll never find a "Fair Witness" type judge like in a Heinlein novel.

Re:IBM saw it for what it is.

[Hoolala]

Well, Al Shithead, Show me proof the judge in the IBM and SCO case is partial and really wants to nail SCO and that's why the case has dragged on for so long.

Re:IBM saw it for what it is.

[trewornan]

I just hope IBM aren't satisfied with just grinding SCO into fine powder.

I hope they go after the company directors (I want to see them do some jail time), I want IBM to press a complaint with the bar against SCO's lawyers (I hope they never practice law again). I hope SCO's expert witnesses get prosecuted for perjury. I hope IBM turns on Baystar and forces some answers out of them (I'd love to see Baystar go down too).

Even the more peripheral individuals and companies around this case deserve a good kicking. I hope forums like this won't let anybody forget which companies supported SCO or bought "Linux Licences" and which journalists backed their case (in particular - let's make sure every time DiDio makes some pronouncement everybody remembers what she said about how solid SCO's case was).

It's time make sure everybody who assisted SCO suffers. It's time to make some examples. It's time to get vindictive.

Re:IBM saw it for what it is.

[alshithead]

I'm not claiming he is. Only that it is plausible.

Re:IBM saw it for what it is.

[iainl]

I think the phrase you're looking for is:

"I want this guy dead! I want his family dead! I want his house burned to the ground! I want to go there in the middle of the night and piss on his ashes!"

yes?

Re:IBM saw it for what it is.

[M1FCJ]

Altough I share your views about SCOldera (as all know, current SCO is not the old SCO), it's a shame about Unixware - which is NOT a SCO product but the AT&T/Novell UNIX implementation for Intel CPUs. It was way better than OpenServer (an abomination) and scaled well and this was way before Linux even existed (first time I played with Unixware was when it belonged to Novell, around 1993-94, fiddling with netware extensions (literally the "ware" bit) in a mixed environment with Netware 3. It was more mature than the early Linux kernels in 90s but by the time SCO acquired Unixware from Novell and released it with version 7, already Linux had more hardware supported and was gaining - mind you, this is before IBM and Oracle embracing Linux - those two made a big difference in the Enterprise level.

I hope one day Unixware will be rescued from the hands of current SCO, on the other hand it will only be a curiosity, not a major OS - it never was but now it doesn't even have the chance.

Re:IBM saw it for what it is.

[heinousjay]

Jail time? Do you want the judge to send people to prison for pissing on Linux or pissing off geeks?

I wasn't aware that filing a civil suit could result in jail time. I knew I should have gone to law school.

Re:IBM saw it for what it is.

[Khyber]

ummm.. excuse me? Discovery is done and gone thru WHOM? It's up to *you* to provide the relevant evidence, and that's what discovery is for. I've been thru the court/prison system enough to know this simple distinction. Discovery is nothing more than the supposed proof of one's innocence/guilt by revealing all of your evidence/the prosecution's evidence. Whatever you're talking about is about 95% bull-shit.

Re:IBM saw it for what it is.

[Emetophobe]

I want IBM to press a complaint with the bar against SCO's lawyers (I hope they never practice law again).

Why? The SCO lawyers are just doing what their clients paid them to do. I hate unethical lawyers as much as the next guy, but I don't think they can be disbarred for doing their job.

Re:IBM saw it for what it is.

[GigsVT]

Barratry can be a crime. Vexatious litigation can get you disbarred. Frivolous litigation (in the legal sense, not the tort reformer sense) can carry penalties too.

Re:IBM saw it for what it is.

[B'Trey]

Judges do not decide that a plaintif is slimy and therefore I need to be really careful so I can stick it to the slime and make it sticks. If you disagree, provide some real-life examples please...

Guess you didn't bother to read the order that this story is about, huh?

Re:IBM saw it for what it is.

[trewornan]

The lawyers must have known that SCO had no evidence to support their accusations and therefore could not win. Persuing an action knowing that it was a hopeless case with no justification is unethical even for lawyers (yes they do have rules they are supposed to follow). Lawyers who break these rules in order to abuse the legal system the way these ones have deserve to be held accountable - that their clients paid them to do it is no excuse at all.

Re:IBM saw it for what it is.

[swillden]

It's up to *you* to provide the relevant evidence, and that's what discovery is for.

I'm guessing you mean to say that it's up to the plaintiff (or, in a criminal case, the prosecutor) to provide the relevant evidence, but that's not how it works in a civil case. The plaintiff is supposed to have some evidence, yes, but the discovery process gives the plaintiff an opportunity to "firm up" the case by requesting all sorts of information from the defendant, and the defendant gets the same chance to request information from the plaintiff. The Wikipedia article is pretty good, and PJ at Groklaw has written numerous articles explaining how discovery works, so you can look there for more information.

Re:IBM saw it for what it is.

[rubycodez]

fraud and misrepresentation to manipulate stock prices also carries a penalty, when the civil suits are over there could be another wave of shareholder litigation

Re:IBM saw it for what it is.

[Moofie]

A fraud prosecution is not a civil suit.

Re:IBM saw it for what it is.

[morleron]

You left out "salt the ground on which he lived". We wouldn't want any trace to remain, not even weeds.

Although this reply is light-hearted I think the parent is right on. It's time that we believers in F/OSS show our strength by pursuing and punishing all those involved in this case who supported SCO and their pack of lies and lawyers. If enough of us boycott the companies that bought "Linux licences" (and tell them why we're doing so) it could make anyone else thinking about filing a lawsuit think twice. Also, if enough of us make it a point to tell the world about Laura Didio's (and other so-called "pundits") part in all this they may find their reputations sliding down into the muck where they belong. Just be polite, avoid ad hominem arguments, and make sure you've got your facts straight when presenting your arguments.

Just my $.02,
Ron

Re:IBM saw it for what it is.

[jc42]

One of the fun bits here is that the judge made her view of SCO's charges (and evidence) clear when she wrote:

"Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'its in there somewhere, you figure it out.'"

The Groklaw summary also point out that she has gone to great pains to "cross every t and dot every i" in her writings, apparently to get the message through to SCO that an appeal is pointless because it will simply be rejected by any higher court.

Re:IBM saw it for what it is.

[GigsVT]

Part of their job is to respect the court and the legal system. If the suits they are part of and the arguments they make are so ridiculous and baseless to be considered an insult to the court, they can be disbarred.

Re:IBM saw it for what it is.

[Grrr]

Seems pragmatic to me, even if it wasn't at all vindictive.

Often I've wished there was a Wikipedia of white-collar con artists. I don't mean a list of those convicted of crimes. Where considerable proof or a clear admission existed (and the criteria will be hard to define, I realize) - even more so when there's multiple misdeeds such as fraud - it shouldn't be so easy for lampreys to just move on to the next kill with no repercussions. I wouldn't want to accidentially hire one of the spam kings if they were attempting to gain legitimacy in some other field. I don't want to have anything to do with the key decision-makers that went after eToy, or made drastic changes to their site's privacy policy without allowing opt-out, or sold their customer list despite clear promises not to do that - or the people who actually orchestrated the Enron "shaft". While I know how to use search engines, it's too easy for the devious and the breathtakingly incompetent to escape notice because a little time has gone by and their unscrupulous acts are "ancient history".

How could such a reference site exist without it devolving into an unreliable, mudslinging libel-fest? And I guess the absence of information there about a person wouldn't be definitive, either way.

(An anecdotal example, on the local level... A gas station operator in central California was found to be jiggering his pumps so they dispensed less than the display indicated. He paid a fine - and three(?) years later was caught doing the very same thing. And he still wasn't barred from ever owning another gas station. "Of course" the swindled saw no refund, but that's not my main point here. At some point I want a habitual thief to be blocked from fleecing customers in the same market sector, ever again, or face utter and absolute financial devastation.

If the courts are unable to protect us from such people, and particularly when they reenter the same field again and again, I would love to at least have a place to check and see if they have a long history of behaving like thieves. Maybe what I want is the BBB as it could be, instead of what it is. Sure, it's too much effort to be constantly checking on the "morality" of every business owner - but that choice should be mine, and yours. We can't avoid chronically bad people if the information about their badness is too difficult or even impossible to obtain.)

FWIW

<grrr />

Re:IBM saw it for what it is.

[iainl]

Oh, I agree. I just like quoting Mamet's Untouchables script more.

A very thorough piece of work.

[Anonymous Coward]

Judge Wells supports her decisions in a manner that effectively prevents them from being appealed.

She uses Sandeep Gupta's (he testified for SCO) testimony to support the requirement for specificity.

She uses the fact that SCO didn't complain when it was ordered to produce specific lines of code. She also notes that SCO never asked for clarification on that point.

She is firing SCO's own testimony and actions (or lack thereof) right back in their faces.

Some posters on Groklaw and the Yahoo SCOX message board have speculated that this decision means that a couple of the counterclaims are a slam dunk. In particular, it now appears that Linux is completely clear of copyright violations wrt anything that SCO owns or says it does.

Re:A very thorough piece of work.

[MikePlacid]

I liked this part:

>

Basically this was the most strange thing about SCO case - not specifying what they were talking about exactly.

Re:A very thorough piece of work.

[brandonY]

Wait, wait, wait, Sandeep Gupta testified for SCO? But he got an IBM Graduate Fellowship (September '88 -- May '91). Irony!

Re:A very thorough piece of work.

[Jetson]

Judge Wells supports her decisions in a manner that effectively prevents them from being appealed.

She's also entertaining. I would have expected most legal decisions to be dry and technical, but she uses some layman concepts that suggest she's well aware her audience includes a lot of non-lawyers. My favorite item is on page 34:

Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that "you know what you stole so I'm not telling." Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say "its in there somewhere, you figure it out."

Re:A very thorough piece of work.

[poot_rootbeer]

Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that "you know what you stole so I'm not telling." Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say "its in there somewhere, you figure it out."

Probably it was the $250 cookie recipe.

Re:A very thorough piece of work.

[dmforcier]

Sure it's the same Sandeep Gupta? That name seems to be about as common as Robert Smith.

Geocities?

[daeg]

What genious linked to a Geocities site from a Slashdot posting? I mean... come on.

Re:Geocities?

[theArtificial]

Yeah, Coral Cache (or other) should be a no brainer for links included in the summary. Anyone have a link to this site? :/

Re:Geocities?

[Anonymous Coward]

coral cache

Re:Geocities?

[Killjoy_NL]

Misspelling genius, lol :D

*snif* so beautiful...

[Anonymous Coward]

Finally, some good news.

Looking at this ruling, and the other exceptionally clear rulings which have been handed down in this case so far, I really am glad that the SCO case was assigned to judges who really understand what it is they are doing. This has been an exceptionally slow case, but at least when progress in the case finally does occur, the progress is meaningful.

Over under

[Mateo_LeFou]

on McBride et. al's salaries when they move on to other companies, to continue trying to game the jacked-up "intellectual property" system. Anyone? I'm not a bookie but I'll put $800K out there. What severe repercussions!

Re:Over under

[dmforcier]

You're assuming, of course, that they don't end up in jail...

Assuming SCO loses, McBride won't be hired as flak. He's too well known now for bullshit. I'd say $250,000 tops, if he can find a Mormon to hire him at all.

Oops, here's the text

[MikePlacid]

In December 2003, near the beginning of this case, the court ordered SCO to,
"identify and state with specificity the source code(s) that SCO is claiming
form the basis of their action against IBM." Even if SCO lacked the code behind
methods and concepts at this early stage, SCO could have and should have, at
least articulated which methods and concetps formed "the basis of their action
against IBM." At a minimum, SCO should have identified the code behind their
methods and conceptws in the final submission pursuant to this original order
entered in December 2003 ane Judge Kimball's order entered in July 2005.

Pro-SCO

[PavementPizza]

Know what's funny? I just figured out that prosco.net is now a parked domain. I guess they didn't have the heart to keep pretending anyone wanted to read it.

Re:Pro-SCO

[micheas]

And they are asking at least $75.00 for it.

upside -- it would be a fun domain to use.

downside -- sco would get $75 more than they deserve.

decisions, decisions.

Re:Pro-SCO

[Clovert Agent]

That's not all. The old prosco.net page (http://web.archive.org/web/20050213064558/http:// prosco.net/) said:

"SCO is anticipating that it will use this site as the future home for all information relating to SCO's pending lawsuits and related issues. For current information about SCO's suit against IBM, please visit www.sco.com/ibmlawsuit, and about SCO's suit against Novell, please visit www.sco.com/novell."

Both the links in there are 404s now.

Re:Pro-SCO

[WilliamSChips]

Don't worry, it won't be enough to come close to pulling SCO out of the red, which means that it will still end up belonging to IBM or Novell.

Re:Pro-SCO

[rbochan]

Also funny is the fact that SCO doesn't show up in any of the "Top Categories" or "Popular Categories" listed there.

This isn't all that great...

[ZachPruckowski]

I'm sort of worried here. Someone allay this fear:

To a non-legal mind, this could be portrayed as "losing on a technicality". So my worry is that anti-Linux FUDders can point at this and say "Well, Linux dodged a bullet based on shoddy lawyering/poor rulings, so it's still risky". Granted, we know (and have known for a while) that SCO has a very weak cases, but PHBs don't, and Joe Average doesn't.

My worry is that SCO dies quietly when it suddenly announces bankruptcy, screws it shareholders, and abruptly the lawsuits all vanish.

Re:This isn't all that great...

[Ungrounded Lightning]

My worry is that SCO dies quietly when it suddenly announces bankruptcy, screws it shareholders, and abruptly the lawsuits all vanish.

Go to the bankruptcy auction.

Bid a dollar for any of SCO's remaining IP claims.

Contribute them to EFF.

B-)

Can you IMAGINE anyone - with the possible exception of Micro$oft - actually CONSIDERING pressing those claims after SCO was driven into bankruptcy trying it?

For that matter, can you imagine Micro$oft even bidding on them, after all their antitrust suit losses?

Re:This isn't all that great...

[something_wicked_thi]

That's true, to a point. After all, this is a rejection of the claims based on the lack of specificity instead of a lack of merit. However, there are two reasons why I have no doubt that it cannot be construed as you say. First, SCO was ordered by the court to provide that specificity and was given ample time to do so. That they still did not provide it demonstrates that SCO could not provide that specificity. Second, there are over 100 claims left to SCO. I expect all of them to be demolished by IBM in the coming months.

Oh, and one other point: the judge's point is that SCO failed to allege an actual violation. How could Linux have "dodged a bullet" when all of the dismissed claims were not actually real claims? If I say that Linux has copied Microsoft's USB infrastructure, for example, does that mean that, when I can't offer any proof, that Linux has "dodged a bullet"? Or, more likely, does it marganilize any other claims I might make?

Re:This isn't all that great...

[ZachPruckowski]

I don't think Linux "dodged a bullet" at all. but there are three groups of people with three levels of knowledge on the subject (I'm fast-forwarding 2 years here):
1) you, me, and everyone here know that SCO was totally baseless, IBM couldn't lose this case.
2) there are people who know what SCO, IBM, and Linux are, and that Linux and IBM won against SCO. They are the semi-literate tech bosses.
3) There are the PHBs of the world (and the sheeple), who don't know the Internet from IE, and don't know Windows from Word. They haven't heard of Linux or SCO.

MS rep comes around, does his "buy more licenses/longer contract" spiel. If the company has any interest in going to Linux, he'll work to dissuade them, via TCO, transition costs, and FUD.

Group 1 will respond with "SCO was total BS, and you know it".

Group 2 will be like "But IBM/RedHat/Novell won", and MS says "They got off b/c of a judge's ruling dismissing half the case"

Group 3 will only hear "IP issues, licensing dispute, still in appeal, very messy" and re-sign with MS.

The truth isn't as important as perception, unfortunately.

Re:This isn't all that great...

[Vskye]

My worry is that SCO dies quietly when it suddenly announces bankruptcy, screws it shareholders, and abruptly the lawsuits all vanish.

If people still have shares in SCO yet, they are either complete idiots or have a broker that should be hung!

Re:This isn't all that great...

[Anonymous Coward]

To have enough confidence to recommend SCO, he'd HAVE to be hung...

Re:This isn't all that great...

[dwater]

> If people still have shares in SCO yet, they are either complete idiots or have a broker that should be hung!

Well, *someone* must have them...I mean, they only get traded. If no one wants to buy them, then you're stuck with them.

I wonder what kind of liability comes with owning the shares....

Re:This isn't all that great...

[Helldesk Hound]

> There are the PHBs of the world (and the sheeple), who
> don't know the Internet from IE, and don't know Windows
> from Word

Most of the staff at M$ would fall into that category.

Re:This isn't all that great...

[Xtifr]

It doesn't matter if it's "on a technicality" or not! Once this case is lost, SCO will be barred from bringing the same claims again. So there's no risk. Plus, there's IBM's counterclaims. If IBM wins some of those (particularly, the sixth, for violation of the GPL), there's going to be no wriggle-room left. Look, this is IBM we're talking about! They've invested billions into Linux. There is no way they're going to leave the doors open for on-going FUD! They invented FUD! They know everything there is to know about the FUD game.

There's also the Lantham Act counterclaims, where IBM is basically saying that SCO slandered their business. They're only going to be able to win that if SCO slandered their business, and that (again) won't leave much room for FUD afterwards.

On top of that, there's the Novell lawsuit. You know--Novell, the guys who actually own Unix! Once IBM and Novell get done, there's going to be absolutely no basis left for spreading FUD. Except random stupid FUD that some people would try to spread no matter what happens, even if there were nothing that could be called a "technicality". The "well sure, they lost completely and totally, and had no evidence whatsoever, but maybe there was still something to it" FUD. And there's little that can be done about that FUD except to point out that it's pure FUD, and that the people spreading it have ulterior motives.

And no, bankruptcy alone will not make the lawsuits vanish. The bankruptcy trustees will have a duty to maximize the value of SCO's assets to pay off creditors. A lawsuit with a potential five billion dollar payoff is not something they're going to be able to drop unless they can show pretty convincingly that there's no way to win. So, if the lawsuits do disappear when SCO goes bankrupt (and I suspect they might), that's going to be just one more anti-FUD argument. If the case had any merit, the lawsuits wouldn't (have) disappear(ed).

Re:This isn't all that great...

[Anonymous Coward]

You are forgetting IBMs counterclaims here. Some of those explicity aim to give Linux a clean bill of health.

Michael

Re:This isn't all that great...

[Anonymous Coward]

I'd guess that SCO legally are similar to a Limited Liability Company in the UK, which would mean that your liability only extends to the value of shares that aren't paid up. Really, they're just going to lose what they paid/agreed to pay for the shares.

Re:This isn't all that great...

[UnknowingFool]

Granted, we know (and have known for a while) that SCO has a very weak cases, but PHBs don't, and Joe Average doesn't.

PHBs and average Joes don't follow the case so what they'll hear when this case goes away is that SCO lost. If they don't care about the details now, they won't when it's over. They just want the summary.

Re:This isn't all that great...

[Anonymous Coward]

Just remember if SCO declares bankruptcy and goes to bankruptcy court the following has to happen first:
0. Have a court officer assigned to handle SCOs books in the meantime.
1. Dispose of all outstanding lawsuits. Drop what you can. Dispose of what you can't.
2. Give everything to IBM as part of the "Dispose of what you can't" part of it.

You'll never get the chance to bid on SCO's remains because it will go to IBM as part of the settlement to pay for IBM's legal bills and judgement against SCO.

Re:This isn't all that great...

[something_wicked_thi]

Group 2 will be like "But IBM/RedHat/Novell won", and MS says "They got off b/c of a judge's ruling dismissing half the case"

I know that's what you were getting at, and that's what my post was meant to address. It's not a technicality because SCO couldn't make a case. The judge gave them lots of rope and SCO hung themselves with it (at least, as far as the dismissed claims go). However, you are also missing the point. If MS wants to spin this as Linux "dodging a bullet", then they can do that whether or not it's just a technicality. Why do you think that MS will tell the truth? MS sales reps can and will say whatever they like about the SCO fiasco, and you can bet that, if they do speak about it, it will be to the detriment of Linux regardless of the facts of the case.

Here's an example. Let's say that IBM hadn't filed to have these dismissed and all the claims were dismissed at some later date simply because of their lack of merit. Why would that stop MS? They could claim that IBM had not produced enough in discovery (IBM lost some versions of AIX, I believe), so SCO was at a disadvantage. Or MS could just say that the lawsuit was bad enough. After all, even if SCO loses, who wants to face a lawsuit like that? Or maybe MS might just say, "SCO lost only because they didn't have the financial resources to battle IBM. Just wait until Linux infringes on our patents." The possibilities are endless. If I were you, I wouldn't worry too much about this ruling helping MS spread FUD.

Re: Losing on a technicality

[Anonymous Coward]

But the technicality was, "you never made anything but a vacuous charge." The rtuling was a "Where's the beef" ruling.

Key extracts from the Judge's order

[Animats]

It's worth reading the entire order from Judge Wells. However, for the benefit of those who don't enjoy reading legal documents, here's are the highlights. These are the Judge's words:

• As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public. At a trade show in 2003 SCO shared with the public a presentation outlining SCO's claims against IBM. SCO identified four categories of alleged misappropriation: ... Finally, in the presentation SCO also gave "one example of many" of line by line copying between the System V Code and Linux kernel code.14
• SCO ... was ordered .... to provide and identify with specificity all lines of code in Linux that it claims rights to.
• In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball's order entered in July 2005.
• SCO was ordered on multiple occasions to answer IBM's interrogatories which in this court's view covered methods and concepts and a request for the code behind them. Thus, SCO's failure to provide code for the methods and concepts it claims were misappropriated is also a violation of Rule 26(e) in addition to a violation of this court's orders.
• Based on the foregoing, the court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO. The court further finds that such failure was intentional and therefore willful based on SCO's disregard of the court's orders and failure to seek clarification. In the 118 view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put "all evidence . . . on the table." Accordingly, the court finds that SCO willfully failed to comply with the court's orders.
• Based on the foregoing, the court GRANTS in PART IBM's Motion to Limit SCO's Claims.

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court. There are a few minor claims remaining, but they're minor and mostly related to old contractual issues that can only involve IBM, not third parties using Linux.

This is all still pretrial manuvering, during which the case becomes better defined. In the next phase, we have "dispositive motions", which will probably include a motion by IBM for summary judgement against SCO. Some more SCO claims will probably be thrown out at that phase.

Re:Key extracts from the Judge's order

[refriedchicken]

"the court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO. " I knew it was getting bad, but suing yourself? I think the attorneys are the ones making out.

Re:Key extracts from the Judge's order

[Animats]

There's discussion of that typo on Groklaw. The judge will probably issue a correction. It's not a big deal.

Re:Key extracts from the Judge's order

[swillden]

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court.

No, I don't think this is correct. SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints. Everything that has been left is related to their contract claims against IBM. SCO is saying that IBM should not have put stuff into Linux that it got from Unix because IBM's contract with AT&T (of whom SCO claims to be successor in interest) required IBM to keep it confidential, not because there's any actual copyright infringement.

What has happened here is that the court has thrown out many of SCO's allegations of contract violation because SCO couldn't define the allegations. Many more will undoubtedly get thrown out in summary judgements when the court determines that SCO's allegations are over Unix information (methods and concepts) that are and have been public for a long time. Then, finally, assuming SCO doesn't evaporate before then, SCO's basic theory about what the IBM/AT&T contract says will be ajudicated, at which point the rest of the complaints will be tossed, because the contract doesn't say that IBM's own code that happened to rub up against AT&T's code falls under the terms of the contract, and because AT&T explicitly clarified this point to IBM and the other licensees.

And, at some point in there, the court will get to rule on some of IBM's allegations about SCO's misconduct -- Lanham Act violations (essentially false advertising), tortious interference with business and, sweetest of all, straight up copyright infringement from SCO's distribution of IBM's code in Linux. The only permission SCO had to distribute IBM's code was the GPL, and SCO stopped providing source code after they started this lawsuit, violating the terms of the GPL and thereby rescinding the GPL-provided permission.

Re:Key extracts from the Judge's order

[schon]

SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints.

Yes, they did, however they have since apparently changed their mind, and tried inserting copyright claims back in (at the 14th hour*) through "expert" reports filed last month.

Re:Key extracts from the Judge's order

[rm69990]

Your comment is not accurate. No one, other than IBM SCO and the court, know what the remaining claims are. There were over 100 that were not mentioned in this document, because IBM didn't try to have them limited in this motion. We simply don't know whether they are copyright, contract or M&C related.

Re:Key extracts from the Judge's order

[rm69990]

IBM's 10th counterclaim asks the court to rule that Linux doesn't infringe on SCO's copyrights, so even if SCO isn't claiming against IBM for Copyright infringement, it is still very much a part of the case, and SCO was required to attempt to prove their Linux claims in their December production.

Re:Key extracts from the Judge's order

[majorflaw]

The key words here are: "SCO ... was ordered .... to provide and identify with specificity all lines of code in Linux that it claims rights to", "SCO's failure to provide code for the methods and concepts it claims were misappropriated is also a violation of Rule 26(e) in addition to a violation of this court's orders.", "such failure was intentional and therefore willful" and "the court finds that SCO willfully failed to comply with the court's orders". That's the way Judges talk when they are planning on imposing sanctions on a litigant. Get ready Darl, this is gonna hurt.

Re:Key extracts from the Judge's order

[refriedchicken]

I didn;t figure it was a big deal. I thought maybe the judge was just prepping for the SCO v SCO case that will be their last hurrah.

it was down before the Slashdot article. (N/T)

[Grog6]

There is no text here. See? It says so...

Not quite.

[Frosty Piss]

Of course IBM saw it as extertion. But IBM can afford to pay, just to not have to deal with it. IBM realizes, however, that Linux is going to play a big part in it's future, and while a one-time extortion fee could be rationalized, allowing SCO to bleed them forever could not be allowed to be a part of IBM's business plan.

Re:Not quite.

[Ohreally_factor]

Apparently, you aren't familiar with IBM's legal reputation. Their legal department has been nicknamed the Nazgul . 'Nuff said.

Re:Not quite.

[Anonymous Coward]

They're afraid of water?

Re:Not quite.

[rgmoore]

The problem isn't with SCO bleeding them. The best guess is that SCO wanted to be bought out, which IBM could have done for pocket change. The problem is that caving in to an extortionist sends a bad message- that extortion pays and IBM is signing the checks. That's a message that IBM is not understandably not eager to broadcast. Instead they've decided to squish SCO like a bug, which sends the message that trying to extort IBM is likely to lead to a painful bankruptcy.

Re:Not quite.

[r00tman]

Yes, and as a result they don't take showers. With that kind of B.O., it's no wonder the judge dismissed 185 allegations...he was compelled to do it!

Re:Not quite.

[Frosty Piss]

Instead they've decided to squish SCO like a bug, which sends the message that trying to extort IBM is likely to lead to a painful bankruptcy.

Painful bankruptcy? I think sueing IBM was a very good business decision on SCO's part. Note the fact that they are still very much in business, and will be for several more years. Where would they be now had they not sued IBM? Long gone.

Re:Not quite.

[Anonymous Coward]

Just out of curiousity, which SCO product did buy last and most recently?

Re:Not quite.

[bstone]

It's Sun and Microsoft that bought tens of millions of dollars worth of "SCO products".

Re:Not quite.

[bigtangringo]

Right up until the judge grants IBM "reasonable legal fees"

Re:Not quite.

[Pogue Mahone]

he was compelled to do it!

she ...

Re:Not quite.

[Anonymous Coward]

They can't see and they scream a lot?

Re:Not quite.

[rgmoore]

Note the fact that they are still very much in business, and will be for several more years.

They're only still in business because they've had several rounds of additional funding since the beginning of the trial, most of which looks as though it can be traced to a certain company whose name begins with "M" and which complains about Linux a lot. As of their last financial statement, they're hemorraging money at a rate that will bankrupt them shortly before opening statements in the IBM trial. Even if Bill Gates manages to send SCO some more money, they are going to lose at trial and IBM is going to be awarded damages that substantially exceed the net worth of the company. SCO's defeat won't be a quick one, but it's going to be most painful when it finally arrives.

Re:Not quite.

[Frosty Piss]

They're only still in business because...

They are still in business...

Re:Not quite.

[Krow10]

Well, it really depends on what the definition of "in business" is. If all you mean is that they're not bankrupt yet, yep. If you mean that they have some sort of plan involving making a profit by selling a good or service, I'd say they're a dead company walking. And they will fold when the last service -- their proxy lawsuit -- is no longer operational. But I do thank them for the tidy profit I made shorting their worthless stock in the meantime. Cheers, Craig

Slashdot

[Venim]

The GeoCities web site you were trying to view has temporarily exceeded its data transfer limit. Please try again later.

No way, man

[Anonymous Coward]

If you read the ruling its clear that this is no "technicality". This was a massive failure by SCO to produce any of the evidence they alleged they had. The court ordered them no less than 3 times to provide the required specificity. They just went 'la la la' and tried to get away with not providing it.

Knowing full well that this would eventually happen, don't you think that if SCO had ANY evidence worth even a wet fart, they'd have produced it during discovery? They have nothing, and everyone knows it.

Re:No way, man

[ZachPruckowski]

I know that SCO had no evidence. I know that the remaining claims are totally gonna flop.

But Linux's great disadvantage is that it has no single voice speaking for it. So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.

Re:No way, man

[Anonymous Coward]

But Linux's great disadvantage is that it has no single voice speaking for it. So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.


But in this particular case IBM will speak up as they are the injured party and if the "talking head" goes too far slander and libel cases will appear.

It may be a mountain of code but they can quote The SCO Groups claims of having "a mountain of evidence" and not needing discovery because they were ready to go directly to trial. Then of course the SCO Group demanded ever higher mountains of code to search through for the evidence they claimed to already have but which even given 3 years they haven't yet presented it to the judge.

'Those are the nazgul. Once they were human, now they are IBM's lawyers.'

Re:No way, man

[Khaed]

IBM is speaking for Linux, in this case.

Re:No way, man

[bstone]

Worse than that, if the "talking head" goes too far, Lanham Act claims will appear (and the "Get the Facts" campaign is already pretty close to the line).

SCO bankruptcy

[Anonymous Coward]

The case doesn't go away just because SCO goes bankrupt, especially not the counterclaims. What does happen is that the current management is kicked out and a bankruptcy trustee takes over. As long as the creditors (mostly Novell) agree, the trustee will craft any agreement that they want. In other words, the cases will be settled in a manner that benefits IBM, Novell, Red Hat and the Linux community in general. There will be a declaration that there is no code in Linux that violates any Unix copyrights.

It's not guaranteed to happen but there's a good chance that Darl will go to jail.

Re:SCO bankruptcy

[gvc]

It's not guaranteed to happen but there's a good chance that Darl will go to jail.

Can you expand on the legal theory behind this, or is it just wishful thinking?

Certainly he enriched himself beyond belief by lying, so he *should* go to jail, but on what specific charge? Fraud? Securities fraud? Extortion?

I see him as open to Slander and Libel suits. Perhaps those could strip him of some of his ill-gotten gains, but I don't think they could land him in jail.

IBMs counterclaims will deal with that

[Anonymous Coward]

IBM has filed counterclaims against SCO - which will ensure that there are definate rulings to show that LINUX is safe.
SCO can dodge their own claims..but they cant dodge IBM's Counter claims

Truth nuggets

[jonathan_95060]

Here is my favorite nugget from the order:

Finally, after IBM received SCO's interim alleged
misappropriated submissions, IBM informed SCO that the
submissions were not specific enough. IBM warned SCO that if the
final submissions were of the same level of specificity court
intervention would be sought. Tellingly, SCO did not seek court
guidance as to the required level of specificity after IBM
disagreed with SCO's interpretation of the court's orders.

Of course they didn't because their whole game is to stall stall stall.

This is great

[HangingChad]

To a non-legal mind, this could be portrayed as "losing on a technicality".

Not by a long shot. It's a bit more than a technicality when a federal judge writes in a decision that you:

- Ignored court orders for specificity

- Implied you tried to game the system and bs the judges

- The judge takes time to point out how you lied to your stockholders in the press

- The court stops speaking legalesse and says something like, "The court finds SCO's arguments unpersuasive."

- The court says you didn't meet the standard of proof you requested of the defense (the burden of proof is on you)

- And that your failures were willful

That's a long way from a technicality. That's SCO getting gut shot and left to wander around in extreme pain while they bleed out and die.

Re:This is great

[Courageous]

At what point can a case like this be dismissed "with prejudice"?

C//

Re:This is great

[rm69990]

It WON'T be dismissed with prejudice. The case will continue. IBM will most likely win the case by summary judgement (much better than the case just being dismissed, as it will cost SCO big time). IBM will most likely win their counterclaims, putting SCO into bankruptcy. That is, unless Novell cleans out SCO on their own claims first, as Novell is gunning for SCO as well, both through arbitration between SUSE and SCO, and Novell's counterclaims where they accuse SCO of embezzling their money and ask that the full sum of money be awarded to Novell that SCO collected from Microsoft, Sun and Linux users.

SUSE assigned a value over $50 million dollars to the arbitration alone. Novell is countersuing SCO for over $25 million when you include their failure to remit royalties and slander of title counterclaims. SCO currently has $28 million in assets, far short of what their legal adversaries are claiming against them for, when you add in Red Hat's claims and IBM's counterclaims. http://finance.google.com/finance?fstype=bi&cid=66 4357

SCO is toast, plain and simple. The time for the case to merely be dismissed has come and gone, which is a GOOD THING, not a bad thing, since SCO will now have to face the consequences for their actions.

Re:This is great

[Courageous]

That's interesting and informative. I'm still asking though, under what circumstances CAN a case be dismissed with "prejudice". I'm curious, and thought perhaps you might have some insight. Generally.

C//

Re:This is great

[rm69990]

Generally, a case is dismissed (with or without prejudice) at the very beginning of the case, before the defendant asserts their defences, answer and counterclaims. It goes like this:

1) Plaintiff files suit
2) Defendant files motion to dismiss
3) Defendant files memorandum in support of motion to dismiss
4) Plaintiff files memorandum in opposition of motion to dismiss
5) Defendant files reply memorandum in support of motion to dismiss
6) Hearing is set, and the parties plead their positions before the judge
7) The judge rules whether or not to dismiss the case

There are numerous reasons to dismiss a case (lack of standing, failure to state a claim upon which relief can be granted, etc), but in a motion to dismiss, the merits of the case generally aren't taken into account. That happens at the summary judgement stage of the case.

IBM has already filed an answer and numerous counterclaims, discovery has been completed, expert reports are in and it is almost at Summary Judgement Stage in the case (another month or so), long past the time to dismiss the case.

Does that answer your question?

Re:This is great

[Courageous]

Well, sort of. It seems to tell me that this case cannot be dismissed with prejudice. But in any general case, what will often result in that "with prejudice" finding? I've poked around on google. Plenty of definitions what it means ("can't bring that case again"), but none obvious on how one gets there.

Anyway, thanks for your keyboard time.

C//

Re:This is great

[rm69990]

Often, if a judge feels that the case cannot be amended to cure its deficiencies, the judge will dismiss it without prejudice. It is hard to get that label though. I'm not privy enough to the law to answer your question fully, I'm just going by what I know. (in other words, IANAL)

Re:This is great

[portnoy]

It can happen through a few avenues; one possibility is that the plaintiff failed to show up for his court hearing to plead his case. Another possibility is that the judge decided that it would be impossible for the plaintiff to fix the problems with pleading his case; that there is no possible way to make an argument which would actually be correct under the law.

One recent example of the latter is Daniel Wallace's suit against the FSF, Red Hat, and IBM, arguing that the GPL was creating a price-fixing conspiracy, and hence was hindering competition in the operating system market. After Wallace had made a number of attempts to reword his argument to address the court's concerns, the case was finally dismissed with prejudice. The judge noted that Wallace had failed to make an argument that the GPL actually caused injury, and went on to say that the GPL encouraged competition by lowering the barriers to entry, and it would thus be impossible for the plaintiff to make a case that the GPL was discouraging competition.

Red Hat and Novell Cases?

[ZachPruckowski]

How does this affect the Red Hat and Novell cases? I seem to recall they were waiting on a decision here, but since they also deal with Linux code ownership, could any of the now-dead claims come back up in those cases?

Re:Red Hat and Novell Cases?

[rm69990]

There are still over 100 claims from SCO that have to be dealt with before Red Hat can proceed. We don't know whether they involve copyrights or not. Remember, IBM DID NOT try to limit all of SCO's claims, because some were specified correctly. IBM has made it clear that they will deal with those claims by Summary Judgement, which hasn't happened yet. SCO, at this point in time, still has over 100 claims in play (I'm not saying anything about the validity of those claims, just saying that they are still going to trial).

No part of the Novell case relies on this, plain and simple. The Novell case is (maybe) being stayed based on arbitration ongoing between SUSE and SCO, and the arbitration is ongoing irregardless of what happens between SCO and IBM. The rest of the SCO v. Novell is based on a contract dispute regarding the terms of the APA, which has absolutely nothing to do with this.

Re:Red Hat and Novell Cases?

[Anonymous Coward]

irregardless? can't find that in the dictionary...

Re:Red Hat and Novell Cases?

[Anonymous Coward]

Sorry, sorry. Preemptive apology. I am normally not a Nazi. But 'irregardless' is almost as bad as nails on chalkboard. If we could eliminate that entirely, I would consider it a big personal favour.

thank you

Re:Red Hat and Novell Cases?

[dmforcier]

There are still over 100 claims from SCO that have to be dealt with before Red Hat can proceed.

Don't be so sure of that. The latest noises from Delaware indicate that the judge is under increasing pressure to do something with the case. I think she may wait until summary judgements in SCO v. IBM are over (shouldn't be too long now - maybe fall) and then make some moves of her own.

Re:Red Hat and Novell Cases?

[rm69990]

Well if IBM wins on Summary Judgement, those 100 claims will be "dealt with" as I stated in my last comment, no? Thus, the Red Hat case would proceed. The Novell case will also proceed, irregardless of what happens at this point.

Re:Red Hat and Novell Cases?

[dmforcier]

IFF summary judgement completely disposes the case, then you're right. As much as it may be warranted, I don't expect that it will happen.

In fact, I wouldn't be all that surprised if SCO moved for a stay pending resolution of Novell if it looks like they will lose all claims on summary judgement. (Not saying that it would be granted, but it could be.) So the schedule on dispositive motions isn't set in stone either.

At this point...

[MoxFulder]

... I wouldn't be surprised to see "Judge grants IBM motion to bend SCO over and spank 'em."

If you've followed the case at all (such as the occasional glance at Groklaw), you'll be glad to see that it's been an utterly disastrous string of defeats for SCO.

Fallout of Linux licenses?

[Nimey]

I wonder what legal fallout there will be from idiots who bought Linux "licenses" from SCO when the the judge finds in IBM's favor. I think one could make a definite argument for fraud.

Re:Fallout of Linux licenses?

[rm69990]

Plus, since SCO was selling Unix licenses to these idiots, SCO owes that money to Novell, as per the APA. Novell is counterclaiming against SCO currently for this money.

SCO vs. IBM, in IRC format

[SIGBUS]

* kitten is on the prowl
<cicada> Bzzz!
<kitten> *jumps* wtf?
<cicada> Bzzzzzzzzzzzzzz!
* kitten walks toward cicada
<cicada> BZZZZZZZZZZZZZZZZZZZZZ!
<kitten> CHOMP! -chomp- -chomp- *gulp*
* cicada has left channel #meatspace (Ouch!)
<SIGBUS> Hey, that was a Quality Kill! Good kitty!
* kitten purrs
* kitten is on the prowl

Who?

[davmoo]

Who? SCO? What's a 'SCO'? Oh, wait!!! Yeah, I know!!! I remember now!!!

SCO is that company that was never relavant to the computer industry even in the best of times. And finally after not being able to create or innovate, they decided to litigate. And apparently they aren't even any good at that...

Re:Who?

[Kurt Wall]

You know, SCO, that crater in Lindon, Utah.

I doubt it

[Weaselmancer]

So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.

I doubt anyone will be saying that. Reason being - you file a lawsuit against someone after you discover that they have injured you in some way. Nobody files a suit and then looks for their injury. Except SCO, for some bizarre reason.

What's left.

[Jaywalk]

SCO made 294 claims. IBM objected to 198 of the claims. Judge Wells allowed 17 of IBM's 198 disputed claims and barred the rest.

IBM's motion was pretty simple. The court ordered SCO to produce source code and SCO didn't do that. What's left is the stuff where source code was provided or wasn't necessary and it's pretty weak stuff.

Three of the claims IBM objected to were "negative know how". SCO argued that these were cases where IBM figured out how to contribute something to Linux because they saw how UNIX got it wrong. In other words, that IBM infringed SCO's intellectual property by not using SCO's source code. Wells expressed doubt about the argument -- calling it a "tenuous position" -- but accepted that there was good reason for not providing the source code.

The rest of the claims she allowed really weren't about coding at all. They were claims that IBM employees who worked on Dynix were contractually prohibited from working on Linux. Again, she wasn't ruling on the merits but agreed that this was a case where source code wouldn't be expected.

Finally, there are the items IBM didn't object to; the ones where SCO actually provided source code references. IBM has already said that it's planning to deal with these with a request for summary judgement.

Also on the chopping block, there's another motion on the table by IBM to scrap most of SCO's expert witnesses. It seems SCO was trying to use those witnesses to add a bunch more code to their "final" list of allegedly infringing material. It remains to be seen how much of that survives.

In a nutshell, it doesn't look like enough of SCO's case will survive long enough to make it to trial.

Not exactly.

[Jaywalk]

Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court. ... SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints.

It would be more accurate to say that SCO tried to withdraw all their allegations of copyright infringement. SCO has been flip-flopping on the issue; talking copyright when it suited them, but then saying that it was purely a contract case when they were pressed. But the judge ruled that the case clearly hinged on copyrights no matter how SCO tried to spin things. SCO still tries to avoid the copyright issue, but if the judge wants to hear about copyrights, there's not much they can do.

At a minimum, IBM's sixth counterclaim is for breach of the GPL, which is based on copyright law.

And the Red Hat case also... n/t

[Anonymous Coward]

Red Hat wants a declaration of non-infringement

Where are the pro SCO journalists?

[jonathan_95060]

You know, the ones that like to say "PJ over at groklaw is an SCO hater that only presents one side of the story. SCO is going to win". LOL. How often have these bozos been wrong about this case? How often has PJ been wrong? Aside from Groklaw I don't see any reporting on this ;^)

Willful vs Bad Faith

[jonathan_95060]

The fact that the Judge sanctioned SCO for "willful disobedience" rather than "bad faith" is analogous to Scooter Libby being charged with obstruction of justice rather than treason or some other more serious crime. In both cases the judge/procecutor/investigator knows the party is guilty as hell but life is easier by going with the easier to prove charge.

The judge is simply trying to avoid wasting appellate judges time by not giving SCO anything they can reasonably dispute (i.e. "it wasn't bad faith because she can't read our mind").

Interesting possibility

[A nonymous Coward]

Suppose, when all is said and done, and IBM wins, they are awarded a chunk of change sufficient to bankrupt SCO. Wouldn't that mean that IBM would in fact end up owning SCO? And wouldn't they then have access to all SCO internal papers, such as Darl's personal email archives, memos, etc? In fact, unless Darl quit, he would then be working for IBM, and all his papers would become IBM property.

Wouldn't that be fun!

Re:Interesting possibility

[Ollierose]

I don't think (IANAL, mind) that it works that way - what'll probably happen is that SCO gets sent into the US version of administration (Chapter 11 or 7?), where the administrators of the company sell as much of the assets to the highest bidder to raise the funds required to pay IBMs damages.

Given that it'll probably be higher damages than SCO can possibly pay, the result would be liquidation of the entire company.

Granted, it would be nice that IBM ends up with the copyrights and such for old UNIX given their current position of niceness towards the FOSS community, but I think it would be unlikely that it would happen that way. The assets are likely to be sold by auction, and there are other entities that would love to get out of their own UNIX contracts as well as IBM.

Re:Interesting possibility

[flafish]

"Granted, it would be nice that IBM ends up with the copyrights and such for old UNIX given their current position of niceness towards the FOSS community, but I think it would be unlikely that it would happen that way."

SCOG would have to own them first. :-) They can't even prove what they were sold by SCO or that SCO ever got them from Novell in the first place. Which leaves the SGOG vs Novell case somewhat hanging if IBM puts them out of business too soon. They (SCOG) are playing the same type game there and the judges already know what they are doing. Judge Kimball is trying both cases. :-)

Either way, SCOG becomes a caldera in the end. It just depend on who gets to drop the MOAB now.

That would be MSFT, not Who

[Anonymous Coward]

- we all know 'who' is behind SCOX, and it is MSFT

Geocities

[neovoxx]

...never link to a geocities page...

And the Winner is: ...

[tilleyrw]

OK. Let's look at the basics. IBM is a larger company than SCO, has been in business much longer, has more $$ money $$ than SCO, and can hire better lawyers.

Guess the name of the winner? Hint: It starts with a vowel. Case closed.

Re:And the Winner is: ...

[wift]

Welcome to the discussion, you might want to read up on the history and subject first before commenting.

Re:And the Winner is: ...

[Anonymous Coward]

Are you a PHB?

This idiot.

[Kalak]

I caught my stupidity after it had been accepted, then quickly got it in the coral cache before it was posted, which someone has already linked to below.

SCO's new logo

[Anonymous Coward]

http://www.kinz.org/scologo.jpg

Let's start one of those

[Anonymous Coward]

Let's start one of those... stock/futures markets -- not for actual SCO stock of course (although it would be quite the novelty as the first to feature negative stock prices) -- for such questions as:

• when SCO will fold like a cheap lawn chair,
  • when and (which ibank) will try to sue the officers personally,
    • when it will first dawn on Darl that he's missing perhaps as many as three letters from his first name.

      Disclaimer: No statement made herein should be construed as investment advice, guidance, or information. Any "understandings" that you may derive or infer are strictly matters of personal opinion, almost entirely for the astoundingly easy goal of self-amusement.

Don't forget Red Hat.

[Anonymous Coward]

They have a stake in this too. Let's hope IBM doesn't stop with SCO either. I am hoping that they can follow the money trail right back to Sun and Microsoft and let them have it as well. That might be hard due to their use of the PIPE's and Baystar, but it may not impossible. I'd also like to see IBM bring the SEC in to investigate the executives at SCO, Sun and Microsoft for their involvement in this case.

Love conspiracy theories.

[jotaeleemeese]

Any major metro area in the world has an IBM site.

Which is why I am strugling real hard to find your point.

Unless you have some hard evidence about the insinuations you are making.