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IBM's Counterclaim 10 Outlines 5 Ways SCO's Wrong
ColonelZen writes "My article at IPW reads: But, however slowly, the wheels of justice do grind on. The discovery phase of SCO v. IBM is now complete, and as per the court's schedule the time to raise Summary Judgment issues is now. And IBM has indeed raised them ... such that it is very possible that all of SCO's claims against IBM could wind up dismissed piecemeal in those motions. ... Yesterday, IBM's redacted memo in support of CC10 hit Pacer. ... This is 102 pages detailing five independent but overlapping, direct and powerfully detailed reasons why SCO's claims of Linux infringement against its code are nonsense."
How much can I have a 'linux license' for now?
You filthy teabaggers.
And this I believe is why IBM decided to take their time, go through the entire court process, despite the increased costs involved -- this time -- to make an example out of SCO. Otherwise, IBM would be inviting multitudes of other lame and unsubstantiated lawsuits from all sorts of "IP" firms with no products. IBM is spending the time and cost now grinding SCO into salt to send a clear message to anyone else in the tech/patent business -- Don't mess with us!
It actually shows a long-term kind of thinking which is sorely lacking in most of the corporate world today.
{ - Generic Guy - }
U.S. and European cases are apples and oranges. The American and British legal systems grew out of English common law and are heavily constrained by precedent, a principle known as stare decisis . Civil law systems - most are derived from or similar to the Napoleonic Code - recognize some precedential "super cases" but generally allow a judicial official to rule without regard to past decisions. This makes is possible to dispose of some matters more quickly, but you'll also see some things litigated over and over again that aren't repeated or end very quickly on a motion to dismiss (pursuant to a prior, precedential ruling) in the U.S. common law system.
Judges sometimes allow things to "drag on" in order to build a solid record for summary judgement (reducing the complexity and likelyhood of appeals) or establish a strong precedent for other courts in their district/circuit faced with similar issues in the future. A single thoughtful ruling in the U.S. can stand for decades and become a cornerstone of law. By way of example, a 1970 district court ruling (Georgia-Pacific Corp. v. U.S. Plywood Corp.) serves as the basis for royalty determinations in pretty much every patent case in America. The SCO/IBM litigation may be long, but could ultimatley produce a seminal opinion that influences contract and copyright cases for years to come, which couldn't happen in Europe.
--- "DNA helicase kicks more ass than a barrel of highly trained ninja monkeys. Never forget that." - N. Howard
The reason this has been such a slow process is that SCO is the plaintiff, and they're stalling. Usually, the plaintiff, who initiated the case, is pushing the case forward, while the defendant tries to stall. This case is backwards.
But stalling only works for so long. SCO was able to drag out pretrial discovery for years. But now, discovery is over. No more surprises. No more "we'll disclose the evidence when the time comes" from SCO. That deadline has past. Now the pace picks up. Here's the final part of the case schedule, as set by the court:
Notice how the events come closer and closer together as the trial date approaches and the judge becomes more directly involved.
The next exciting moments will come in late November or early December, when the judge decides the summary judgement motions. SCO will then be worse off than they are now; the only question is how much worse off.
SCO's lawyers have used brilliant stalling tactics. The longer the case is before the court, the longer the FUD lasts; the longer some people stay out of jail (Darl could be in real trouble because of some of his public statements.) There could be real trouble because of Lanham act violations. AllParadox and Marbux (lawyers) seem to agree that Darl and co. will be found personally liable to the extent that they will lose all their assets.
There is also reason to believe that IBM may not wish this case to end as quickly as it otherwise might. What the judge and the SEC and the AG do to SCO, and everyone involved with this scam, will serve as a warning to anyone else who thinks they can pull a similar stunt. It is not for nothing that IBM's lawyers are nicknamed the Nazgul. What matters to most of us is that the judge will find that Linux is pristine wrt the taint of any Unix code. That's important to IBM because they seem to have bet the farm on Linux. Unix, AIX, Dynix, mainframe, etc. are slowly subsiding and IBM will have trouble surviving in a Microsoft only world. They need Linux and they need the business community's confidence that they can use Linux without being sued.
The other thing that might have been lost if the case ended sooner is Goldfarb's (Baystar finance) declaration in which he fingers Microsoft as being behind at least some of SCO's litigation financing. A couple of years from now, when we have a new president, the Microsoft antitrust settlement could be re-visited. If Microsoft is found guilty of financing SCO's lawsuit (it's illegal to do so) then Microsoft could be facing breakup again.
This is all big stuff for IBM and they do have some reason to want to see the wheels of the law grind exceeding fine. origin of quote