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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.
I believe posters are recognized by their sig. So I made one.
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.
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.
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.
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.