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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."
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.
Well, they've just about decided what evidence there is; now they're going to decide which issues can be decided immediately (because there's no disputes on factual matters on them), and which issues need to go to court. That's for the next few months. It's likely that all of SCO's claims will be thrown out before then, but there will be IBM counter claims that probably will go to trial.
However, there's also a case Novell-SCO, and since in it Novell claims that it still holds the copyright over some things (like, say, SysV Unix) that SCO claims copyright of in the IBM case, that case will go first.
That trial is at the moment expected to start about September 2007-ish.
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Darl is looking pretty rough these days. I wonder what could be weighing him down so much.
His conscience, maybe?
You're rigth, SCO is *still* after several years trying to add more evidence and more claims. By having expert-testimony (which is supposed to *explain* the claims and the evidence) contain claims that aren't there in the final disposition.
So, ok, SCO still, after being ordered repeatedly to put all the evidence on the table for literally *years* don't have all the evidence they claim to posess on the table.
But worse: They also *still* don't want to commit to exactly what it is that they are even *claiming* that IBM did.
In effect, several years after the trial started, SCO is still at: "You did something wrong, but we refuse to state in specific terms *what* you did wrong, we also refuse to provide any evidence that you *did* infact do the things we claim."
It's impossible to defend oneself if one doesn't even know precisely what the accusations are. "Structure and organization" ain't specific. No more than "breaking some law" would be.
It's beyond ridicolous. They've been given enough rope at this point. It's nice to see the judges are starting to tigthen up -- this particular attempt at redefinind the claims was turned down flat.
Are you being serious? SCO initiated this lawsuit and several other lawsuits. From the beginning, IBM (and others) have tried to work with SCO to avoid a suit. Lawsuits are expensive and most companies try to avoid them as much as possible. SCO has refused. In this case, IBM has asked from the beginning the details of SCO's grievances against them. SCO has been as evasive as they possibly can be. But there is a limit to this and the judges have called them on it
From the beginning SCO has stated it had a mountain of evidence. But they wanted everything IBM had. When it came time for them to produce what IBM wanted, they has refused to produce any of it until after three orders. When it did produce it, it was inadequate as IBM warned them. Then they go to the judge trying to explain their vagueness. The judge didn't buy it.
Three years is quite a long time for discovery. SCO asked and received extensions to the original deadline. Plus discovery is not then time when you should start your case. Discovery should be used to cement your case. SCO was hoping to find any hint of wrong doing basically because it had nothing in the beginning. If you go up against IBM, you better be prepared with evidence before you file a lawsuit.
Well, there's spam egg sausage and spam, that's not got much spam in it.
Well that pretty much defines "good week for the rest of us".
2. It will probably never go to trial. SCO's goal is to get IBM to settle.
IBM's goal is probably either to get SCO to drop, get the judge to drop,
or failing that to settle for as little as possible while retaining the
right to continue to do business as usual.
IBM doesn't want to settle - they want to leave a smoking crator to be an example for the next idiot that tries to scam them.
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.
Actually, I've had the displeasure of working with Unixware for the last 6 years now. It is a heaping pile of horse dung.
We recently moved our main transaction processing server to Suse Linux from Unixware. (yeah, I know, evil deal with M$ doesn't mean anything in this company) The difference is astounding! They actually found bottlenecks that were undetectable before, due to the inefficiency of Unixware, and many of the memory leaks vanished. As well, the same hardware that would have have only lasted maybe 6 month to a year under Unixware, will now serve us for a few more years yet.
I'd say that Unixware needs to be burned, pissed on, and burned again, then pissed on again for the piece of shit that it really is. You'd be hard pressed to convince me that Linux, in anyway, would be benefited by copying code from any SCO product.
SCO will continue to serve its purpose for a while. :)
When a land mine explodes, you don't consider the mine a failure because it was destroyed in the process.
"This post is an artistic work of fiction and falsehood. Only a fool would take anything posted here as fact."
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.
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.
It isn't just the difficulty of responding to last minute accusations that makes trying to sneak new ones in unfair; after all the legal system doesn't generally balk at stretching things out if it thinks it will get a better result.
The fairness problem is that if the plaintiff can add new claims at anytime he pleases, he can move the goal posts at will whenver the defendant gets close to them, at little cost to himself and great cost to the defendant. Successful defense would become impossible; either you'd lose outright, or be forced to settle on terms favorable to the plaintiff.
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So far, SCO has shown 326 lines of code after over three years of discovery, and those are questionable at best (coming from standards that SCO participated in writing like ELF, or coming from IBM home-grown code like JFS). In June, the judge gave one of my favorite quotes from the case.
Now, after discovery is over, when they were told that ALL of their claims had to be stated by the end of discovery, SCO claims in their expert reports that virtually the whole of Linux is at issue. Since discovery is over, that would mean that IBM could not gather any new evidence to refute the claims. This is NOT how the system works. Normally, you state your claims, both sides have a chance through discovery to determine the evidence, that evidence is presented, experts review the evidence and report on it, then you go to trial.
In this case, SCO claimed they didn't KNOW what their claims were and they wouldn't know until after discovery. That in itself seems to put IBM at a disadvantage. At the end of discovery, they had 326 lines and some nebulous claims with no evidence (which were thrown out in the ruling in June). Now, in the "expert reports" which are supposed to examine the evidence on the table, SCO adds a raft of claims for which they still present no evidence.
Given that over three years ago, they claimed to have a suitcase stuffed with "millions of lines" of "stolen" code, it's rather surprising that they didn't present it as part of their case, even after repeated admonishments from the judges to show some evidence. You'd almost think they didn't actually have a case.