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Portions of SCO's Expert Reports Stricken
rm69990 writes "A day after Judge Dale Kimball reaffirmed Judge Wells' order tossing most of SCO's case, Judge Wells has stricken large portions of SCO's expert reports, stating that SCO was trying to do an end-run around IBM. As IBM put it in its motion papers, SCO will not be allowed to 'litigate by ambush.' This motion was regarding SCO's expert reports, where SCO attempted to insert new evidence after discovery had ended via their expert reports. Wells' ruled directly from the bench, and finished by telling SCO to 'take it up with Judge Kimball' if they had a problem. This really hasn't been a good week for SCO."
When is the trial starting ? I'm assuming there will be one, some sort of proceedings involving a judge, plantiffs and defendents and arguments are made to decide whether IBM is guilty of *whatever crime this case is about*...
What if you were being taken advantage of by a large company and all you had at your disposal was the courts to protect yourself with. Then, when the trial began the company kept hemming and hawing and you wound up at the end of the discovery phase with nothing but your own claims. Then after the discovery phase ends, the company dumps a ton of documents on you, too much to go through in a reasonable amount of time and the judge isn't willing to give you the time to go through it.
I'm not saying that SCO's a lamb. Far from it. They have been involved in some of the worst corporate malfeasance that I've heard of in a long time (well, since Enron, I guess). They can go DIAF, as far as I'm concerned.
But I don't like the idea that the wheels of justice need to roll so fast that any and all evidence may be thrown out because it doesn't meet some arbitrary deadline.
This is actually a very well known theory of copyright. An example: One cannot copyright factual data, but if one takes the factual data and arranges them in a novel enough way as to satisfy the "originality" requirement of copyright law, then that "author" can have a copyright over the selection and arrangement of the factual data. The data itself is not protected(anyone can put the same data in his own work), but that particular selection and way of arranging it is protected.
The copyright will normally be a "thin" copyright, meaning that for someone to be infringing he or she must have produced something nearly identical to whatever is protected. The data does not have to be factual data. A compilation of classical music now in the public domain is an example of something that might also be protected. This avenue is often used to try to protect computer databases where one entity has gone through a lot of trouble to collect a bunch of data and arrange it in a computer database, and someone else comes along and just copies it all.
Courts have held that things like the white pages (and in many cases the yellow pages) do not have sufficient originality to qualify for a compilation copyright.
In my opinion compilation and similar "data arrangement" copyrights are not a very good way to protect data (one reason is that you're attempting to protect "sweat of the brow" work through copyright, which is an idea that was rejected long ago).I feel that works of this type are better protected through tort law under the "unfair business practices" doctrine.
Darl is looking pretty rough these days. I wonder what could be weighing him down so much.
His conscience, maybe?
This really hasn't been a good week for SCO
Poor SCO, lets see if I can squeeze out a tear of sympathy.
NNNNNHHHH!
Nope.
SCO case is over, even M$ put their money with Novell now.
They already abandoned SCO.
We often hear about how Linux has been victimized by these legal actions, but in the end the real victims will be SCO UnixWare and SCO OpenServer.
I know most people here probably haven't used such systems themselves, or at least not done so knowingly. The beliefs the morals of SCO aside, they're actually some fairly decent systems. They really harken back to the days of true UNIX, where simplicity was key and efficiency paramount.
It would be excellent if whoever controls the UnixWare and/or OpenServer codebases after these legal proceedings were to release it under an open source license. I personally think that a BSD or MIT-style license would be most appropriate. With some effort from the community, both systems could be brought up to a modern level. Considering how much of their use was on x86 systems a small fraction as powerful as what we use today, they really tend to fly on new systems.
Well that pretty much defines "good week for the rest of us".
Now it is quite clear. Microsoft's deal with Novell is an attempt to keep the FUD going after SCO's case implodes. They must have very good legal counseling so they new what was coming.
When his defense asked, "Which computer has Jon Johansen trespassed upon?" the answer was: "His own."
SCO should claim that their code was inserted into Linux by a one-armed man. Then Kimball would probably be more inclined to believe them.
IANAL etc.
Part of the Lanham Act (http://en.wikipedia.org/wiki/Lanham_Act) is often used when a company claims their business been hurt by false or misleading statements. There are 3 things that must be proved by the company that claims the damage: 1) there was a false or misleading statement made, 2) the statement was used in commercial advertising or promotion and 3) and the statement creates a likelihood of harm to the plaintiff.
Now looking at how SCOX has kept shooting it's mouth of in the early phases of the case I'd say that 2) and 3) are pretty self-evident for those who have followed the development of this case. 2) because SCOX made a lot of loud statements during their Road Shows (which they only made to market themselves) that never materialized. 3) can most likely be proved just by reading what market analysts wrote based on SCOX:s statements and the initial soaring of SCOX value.
So the only way to weaken the Lanham Act accusations from IBM is to weaken 1). If something, just any little thing, does survive into the trial itself it might give SCOX the chance to argue that the other statements were made in some kind of good faith. So they try to wriggle anything in sideways, under or over that can help them to do that. Because if they don't then it will look very bleak for them when Lanham Act part of trial starts.
Novell and IBM have both filed for summary judgements on SCO's claims and on many of their own counter claims. If the judge grants that then a jury trial isn't needed. The judge can do that if the case can be decided entirely on the basis of law. In other words, there are no disputed facts.
An example of something that could be decided as a matter of law would be whether Novell transferred any copyrights to Santa Cruz and whether they then passed on to SCO. The judge could simply read the contracts and rule that the ownership of the copyrights had not changed hands; no need for a jury.
SCO's only hope is to get their case in front of a jury and that hope is based on being able to confuse the jury and get a verdict that they don't deserve.
When discovery closed, SCO had not dredged up anything that could serve as a disputed fact. What they did put before the court was mostly pitched out by Judge Wells because it was not nearly specific enough. It was like: Shop keeper "He stole something from my store."
Cop "What did he steal?"
Shop keeper "Something; it was in the catalog."
Cop "How do you know he stole it?"
Shop keeper "He was in the same city."
If you haven't been following this sorry mess, you'll think the above scenario is exaggerated. It isn't.
In order to get something past the judges and before the jury SCO tried to sneak some stuff in via the expert reports. Unlike the rest of us (who have to stick to facts), experts are allowed to give opinions to the court. SCO was hoping that they could sneak in some opinions that would make it look like there were some disputed facts. Then they would get their jury trial.
Notice also the judges' strategy. They aren't allowed to tell SCO that they are full of crap. They have to assume that SCO is acting in good faith. Thus, when judge Wells threw out most of SCO's evidence, she did it on the basis that they willfully withheld evidence. They said they had evidence and they didn't present it so they must have withheld it. Of course, we all know that SCO never had any evidence. Similarly, we know that the expert reports were just embarassingly bad. I feel sorry for the experts.
Good faith won't save SCO wrt the Lanham act as the privilege only covers statements made to the court, not to the press.
...my piss to this noble cause. Hear hear !
No. Shit. Sherlock.
From the looks of it, SCO's last good week was back in 2000:
http://finance.yahoo.com/q/bc?s=SCOX&t=my
Chris Knight is my hero.
I'm cheered by this discussion of the Lambert Act because it sounds like maybe, just maybe, these thugs will possibly be brought to heel. Darl et al. are the worst kind of snake-oil salesmen and probably have millions salted away in some account in the Caymans. Someone needs to get this cash and return it to the shareholders. However, they'll probably slither away, hopefully never to emerge into the light. C'est la vie.
Danke tres mucho, tovarishch.
Total hypo, but what if you were SCO?
If I were SCO I would hypothetically stab myself in the face.
The I would stab Darl McBride in the face, then I would stab my lawyer, Lionel Hutz or whatever he is called, in the face.
The I would take my pitiful penny-stocks and wail and gnash and think about the old days when I used to make products instead of just making people sick.
It's been IBM's policy for _decades_ to never create a "we give in to extortion" precedent. Because the instance they pay off one leech with a dodgy claim (either settling, or by buying the company, i.e., giving someone good money for their worthless shares), they've just painted a huge bullseye on themselves. That would be the day when a thousand other leeches sue IBM to get some money too.
IBM is a big rich target, and there are entirely too many people whose sole business plan is frivolous litigation. And anyone with lots of money is a natural target. It's like putting a sign on your porch saying "I have a big pile of gold in my basement". Someone will take it as a personal challenge to take it from you. And if you give in to the first guy who comes over and says "I'll sue you if you don't give me some of that gold", tomorrow you'll find a big queue of people at your door who want some too. It's not a precedent you want to set.
So settling frivolous claims is _not_ what IBM wants, and it's never been what it wanted. What it wants is the equivalent of a bunch of skulls on spikes, with a sign saying "these are the last guys who tried to extort us."
And I have to wonder what have Darl and the gang been thinking. It's been common knowledge for ages, complete with such mental images like "IBM's lawyers are like the Nazgul" or "IBM can darken the sky with its lawyers". So I can't really imagine someone genuinely thinking, "I know! surely one more try is all it takes! They'll certainly do the stupid thing _this_ time!"
Even assuming that Darl were actually _that_ stupid and disconnected from reality, you have to wonder about everyone else involved. Like the investors that funded this stupid charge of the light brigade. What were _those_ thinking?
Cue conspiracy theories about MS paying off Darl to create FUD even if SCO loses the lawsuit.
Then again, maybe Hanlon's Razor does apply, after all: Never attribute to malice, that which is adequately explained by stupidity.
A polar bear is a cartesian bear after a coordinate transform.
Novell is the problem du jour.
What if you were being taken advantage of by a large company and all you had at your disposal was the courts to protect yourself with. Umm, I think you meant:
"What if you had destroyed your business through your own incompetance, and decided to try extort money from a company who had done nothing wrong?"
Perhaps Disney can now sue SCO because the Caldera symbol looks like a Mickey Mouse ear? (I'll admit that I could never see the "C" in their symbol until a few weeks ago)
But SCO did not do this. I suspect that they did not do this because either they don't actually have any data structures, concepts or methods that can be argued to be protected. But it could also be the case that when they do that they show that the structures as defined in AIX (or Dynix) and Linux are so different from what is in Unix that they aren't really the same thing.
The bottom line is that this argument does not removed the need for specificity when making a claim for copyright infringement. Regardless of whether it is the structure that is copyrighted or the contents of that structure, the person making the claim still has to identify exactly what it was that was infringed. That is the core of SCOG's problem. They've never identified to the court excactly what their claims are about.
Of course, IBM isn't going to just stand there after letting SCO dig a hole for the past 3 years either. They're going to open a can of whoop ass and in a matter of days from the time they do it I'm sure there will be plenty of whoop ass to go around. I don't think they'll be satisfied simply to destroy SCO -- I think they're going to go out of their way to see to it that lives are destroyed. I wouldn't be surprised if people end up in jail over this case. It might be that SCO's legal team will be able to simply stand around and watch the carnage. Perhaps IBM won't go after them personally -- after all, all they really did was represent SCO's dubious case as well as they could. I'm not sure how they'll ever find work again after this farce of a case, but then again they do seem to be able to have miserable failure after miserable failure and people still want to hire them.
Anyway, it seems like this are starting to hop in this case and it sounds an awful lot like IBM cracking the top on that can of whoop ass. I have a feeling they'll spread it around quickly once the ball starts rolling.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
For a very nice overview see Pamela Samuelson's Copyright law and electronic compilations of data
SCO may be a Microsoft stooge, but they where never their baby. Microsoft gave them some cash and said "go for it", and moved on. I don't think they where stupid enough to think that SCO had much of a chance, the best they could have hoped for was a short term FUD gain. IBM probably fought a little harder than they expected. With Novell, it's totally different. The Novel "situation" is a peek at where Microsoft wants to go with Linux, an IP war. In today's IP law and court system, they have a good chance of gaining ground. This will get very ugly.
If you want news from today, you have to come back tomorrow.
How is this a good thing? Someone (I'll include a company as a person for this discussion) can, without merit, take another person to court, without basis, without proof, without even a specific claim, and tie up resources for years. How exactly is this a good thing? People claim "this is a win for IBM" or some such. The only win for IBM (and the rest of us) is if the process ended long ago with a dismissal with prejudice. It's too far along for anything to be a "win" for anyone. It's just a matter of how much is lost. The courts apparently have the duty of allowing those willing to spend money to harrass anyone they want for years and years. The only think that might approximate a win is if every lawyer that ever worked for SCO on this case was disbarred for work on a bad-faith lawsuit. Except, in practice, lawyers are hardly ever disbarred for anything other than getting convicted for a felony. Acting in bad faith is a reason to disbar in most (all?) places. I'd like to see that enforced sometime, starting with this case.
Learn to love Alaska
I'm pretty sure he knew SCO was going toes-up in 2003, and didn't like what he saw. OTOH, making a monster and --to any stock investor with lots of money and tech-ignorance combined-- adventure against a big fat (and rich!) company would surely boost the stocks high enough to dump a few (but not enough to arouse suspicion!) and retire off the results.
As it is, McBride and most of his board are now a multi-millionaires because of that, where before he really didn't have near as much cash.
Damage aside, it's a pretty solidly-run con IMHO. So what if IBM/Novell/etc wins? The company chokes, but Darl still gets to keep his own dough, and come out of it a whole LOT wealthier than he would have otherwise.
Quo usque tandem abutere, Nimbus, patientia nostra?
I don't car if it is IBM or the RIAA the idea of using criminal law in what is a civil matter is just wrong.
If the people in SCO broke the law then I have no problem with them receiving the consequences of their actions, but trying to "ruin" peoples lives is just wrong and sick.
Let's put this in perspective the the people that run SCO have not killed anybody. They have not tortured anybody. They have not raped anybody. They have molested anybody.
Those things are happening right now in the Sudan and other places. Let's us be glad this will be over soon but let's not raise this to the level of hate.
See my blog http://ilovecookes.blogspot.com/ for light hearted technical information.
A legal system actually interested in justice would strip those "experts" of their privilege to testify credibly in court.
And disbar SCO's lawyers for their outrageously frivolous lawsuit.
Instead, those experts and lawyers will make the only money anyone will see in this endless travesty.
And American taxpayers will subsidize it, with all the time and resources consumed by the public courts which have a lot better things to do.
--
make install -not war
You seem to be suffering from severe delusion.
- most likely, there will be NO people going to jail. Just because YOU have a vested interest does not make this case any different from 1 megacorp suing another
- lawyers are NEVER punished for trying a case on someone else's behalf (as long as they don't do anything actually illegal). this case is not anywhere near as emotionally charged as the trial of Ted bundy, Timothy McVeigh, or that hijacker that did not -factually- hijack a plane.
- lawyers like SCO's generally have more than enough work offers, and they charge more per hour than I per day, and I am an expensive consultant. The fact that they represented SCO does not hurt them in the least.
- the fact that SCO gets beaten at every turn is NO a fault of their lawyers. SCO has a shitty case, and the lawyers have to work with what they got. they do the best they can, and they should. you'd expect the same from your lawyer, no?
In a far more realistic scenario
- IBM takes this all the way and SCO loses big.
- IBM's counter claims will maybe turn out in their advantage, but maybe not.
- SCO will try to appeal, but this will most likely not have a result because -unlike you- the judges involved kept their cool and did everything by the book, no matter how trivial and dull the issue at hand.
- SCO will dwindle away and die. Not because they are evil, but simpy because they alienated their remaining customers, did not invest in developing new technology, and have a gigantic lawyer bill to pay. The latter largely because the SCO lawyers had sense enough to demand payment, instead of a large percentage of a possible settlement.
Also of interest is that the supreme court case that decided this in the US is relatively recent (early ninties). Prior to this ruling, most US courts accepted prima facie that such lists could be copyrighted and were protected.
The fact that they couldn't do it in a couple years is proof enough they have no case at all. The fact that they repeatedly stated they had such evidence while they knew they had nothing is libel. Since it is reasonable to assume they did it with the purpose of manipulating the market is far worse.
Perfect description. Simple and easy to follow. I just hope some fed picks up that particular ball and runs with it.
It's a simple trail to follow.
I hope the SEC is paying attention. As soon as the items in the list are set in stone from a judge, they really need to pay SCO a visit.
Weaselmancer
rediculous.
In my state, at least, minor speeding violations are not considered criminal offenses. See http://www.metrokc.gov/KCDC/reit.htm.
Anyone here remember when Microsoft said their judge was baised because they asked for an unreasonable request that wasn't granted? This is the problem with the legal system.
Sco may just claim the judge is biased since they wont let their experts testistfy on their behalf and now we will all need to wait for 2 or 3 more years as the case starts over.
http://saveie6.com/
Lets not forget those that sold themselves as "expert witnesses" during the SCO saga. In this particular case the expert witness was one Dr. Thomas Cargill.
I will never buy his books (e.g., his C++ book). If he speaks at the local university I will boycott his appearances. If given the opportunity I will protest any attempt by any company I have influence over to use him as a consultant.
It's true no man is an island, but if you take a bunch of dead guys and tie 'em together, they make a good raft.
What causes many, including myself, to wonder is that SCO has proceeded - apparently in the most expensive way possible - to this point (where they can't win anything) when they must known long ago that losing was inevitable. Surely the damage to themselves could have been mitigated. So why are they committing corporate suicide? There must be an insurance policy of which we're unaware.
You can't take the sky from me!
SCO Stocks are taking a nose dive, in a couple days they went from $2.50 to $1.40 As of 10:43 the stocks are at $1.40. How long before they're at $0.25 or lower? http://money.cnn.com/quote/quote.html?symb=SCOX/
Did something go wrong with the word "struck"?
http://news.uzreport.com/mir.cgi?lan=e&id=24448
I mean, the old Mark Twain saying fits best: A man who tells the truth, has to remember nothing.
Each day that this drags out is one more day for them to confuse their stories, forget facts, change facts entirely, build up judge resentment, and basically undermine their case. Here is hoping that IBM does leave them a smoking crater, and then provides the blueprint for success to others who might be targets for such lawsuits. (Novell-MS vs Red Hat comes to mind.)
Judge Kimball did a de novo review, meaning the review was excessively thorough. This pretty much indicates that any appeal attempt will merely result in the review of Judge Kimball's work, noting that SCO has no new issues on appeal, and expediting the whole process against SCO.
Note, I'm not a lawyer. This is all the reading I get from Groklaw, which has been following the case since the beginning. If you don't frequent Groklaw, you might want to, if you are interested in the SCO case at all.
Microsoft is to software what Budweiser is to beer.
http://finance.yahoo.com/q?s=scox
Facts are stubborn things.
Have you seen their stock price lately. After taking a massive hit yesterday of over 20% it's down 38% more right now. Opened at $2.00 and is now at $1.24 a 38% drop. Wow what a freefall.
Symbol SCOX
The truth shall set you free!
and
and
and
They're all over the place; there must be thousands of them! How could everyone have missed this? I must be a programming genius! Maybe I can help SCO write their next expert opinion...
/* "Specialization is for insects." -Heinlein */
Hehehehehe.... Wipeout!
Slashdot: Failed Car Analogies. Amateur Lawyering. Anecdote Battles.
> lawyers are NEVER punished for trying a case on someone else's behalf (as long as they don't do anything actually illegal)
The way you put that looks misleading.
Lawyers DO get punished, but it's for their own conduct, not for that of the parties they represent. Boies (one of the founders of the law firm representing SCO) got sanctioned, IIRC, down in Florida for the way he represented some lady or her company.
True, they will NOT get sanctioned just for representing some douchebag, unless they help said douchebag pursue a legally frivolous claim against someone or something (which, again, is their own conduct--the douchebag couldn't have tried the case without them), or unless they do something illegal during the case, like suborning perjury. Also, I should be clear that you're entitled to a criminal defense lawyer, so they certainly don't get punished merely for acting as counsel to defend even people who are monsters. I think it's much the same in civil suits--you don't get punished merely for defending the guilty, so long as you remain within the bounds of the law in doing so.
Disclaimer: IANAL. Anyone who this is relevant to, however, would be a lawyer and should take their own advice instead of mine.
... maybe they shorted SCOX?
Oh god, that woman is John Romero!
I have suggested to my friend who helps runs the local LUG that we organize a BBQ/Installfest to coincide with the "final nail" for SCO. It looks like that will be March. I wanted to pass this idea along, so other LUGs might do the same. Bring along and burn any Caldera or SCO stuff, and cook some ribs too!
If you actually had experience with more than one *NIX, you'd know that SCO is a big steamy turd.