SCO Asks Court To Reconsider IBM's Dismissal

VE3OGG writes "The SCO Group — the litigation firm currently in dispute with, among many, IBM, over supposed copyright infringing code in Unix — has quietly asked the courts to reconsider IBM's request to toss the case out. SCO argued that the court's November decision was procedurally and substantially flawed and they say 'the rules of procedure do not support such a result under the circumstances of this case.' If allowed to reopen the case, the SCO Group argues, that new evidence would present itself through the deposition of several IBM programmers who had previously been interviewed."

Comments

Rats

[Pedrito]

When I was in high school, a rat got into the house. My cousin, a neighbor and I had it pinned behind a piece of furniture. I was beating it from above with a broom handle, my neighbor was wacking it from underneath with a shovel and my cousin was hitting it from the side with something else. I thought the damn thing would never die. SCO reminds me of that rat.

Re:Rats

[numbski]

I've learned something about trapping small animals.

My wife's cat (ie, she had the cat for the better part of 5 years before we got married) doesn't like me all that much. She would take the cat with us when we'd visit her parents' house, and in her old bedroom she had a queen-sized waterbed, where the headboard is suspended, leaving a little "tunnel" behind the bedframe and underneath the headboard.

The cat decided that when it was time to leave, it wasn't time to leave, and got under there, dead center out of reach. Now, in having raised cats prior, I taught them early on that I was the parent, and would pick them up by the scruff of the neck to let them know who was boss. This cat didn't know that game. I quickly grabbed her by the back of the neck and pulled her out....only for her to empty her bowel and bladder on me. There have been a few more times since I've had to do this, and the result is the same.

Point is, you may win in the end, but don't underestimate their ability to claw, scratch, kick, scream, and lastly, crap and pee all over you on the way out. :P

Asking Santa

[kitzilla]

SCO is also asking Santa for a big red wagon and a puppy dog.

better late than never,

[fotang]

as news for nerds that is one week old is still news...

Christmas story all over again..

[iamsure]

Kimball Quoted as saying "You'll shoot your case out kid!"

Summary is somewhat misleading.

[YouHaveSnail]

According to both the article and Groklaw, it's not so much that Judge Kimball threw out SCO's case as it is that he affirmed Magistrate Judge Wells' order that threw out the claims that SCO couldn't or wouldn't substantiate. That does indeed include most of SCO's claims, but it's not true that the whole case was dismissed. SCO does have a few claims remaining, and IBM has multiple counterclaims. Nevertheless, SCO's goose is completely cooked, and we're now just waiting for IBM to finish them off.

Re:Summary is somewhat misleading.

[Samari711]

That is correct. SCO's argument is that because that's the only evidence that they have to support those claims, the court is effectively throwing out the claims because they're throwing out the evidence. They ignore the fact that the "millions of lines of infringing" code never materialized, that the evidence they did disclose by the deadline was incomplete by the standards they were holding IBM to and the standards the court specified, and that they later tried to slip evidence in expert reports after fact discovery was closed so IBM couldn't do anything about that evidence.

Since /. is so slow on this, it should be noted that Judge Kimball rejected the request on a technicality that they filed as a request what should be a motion. Armchair analysis seems to indicate that the rejection might be his way of saying "You really don't want to do this" to SCO. This request basically calls the judge a liar or too incompetent to understand what a de novo review is. It's like SCO is trying to get found in contempt...

Re:Summary is somewhat misleading.

[fishbowl]

>Why does the concept of contempt still exist in today's court system?
>Can't judges rule on what is before them and put aside their emotions?

A contempt of court citation is not based on emotions. Contempt of court
has to do with a party's disobedience of a court order or certain well-defined types of misconduct that interfere with the legal process. Such rules carry the force of law, and a contempt of court citation is, depending on the specific case, a claim of civil damage or a criminal accusation made by the court against an individual.

Courts have an inherent power to punish persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings. The basis for this doctrine dates back as far as any of the founding principles of English Common Law.

IBM's reply on Groklaw

[richg74]

Groklaw now has up a redacted version of IBM's reply memo to SCO's motion, which lays out numerous reasons why SCO is yet again full of what my grandfather called "condensed canal water".

New evidence?

[crossmr]

If they had some evidence they probably should have used it the first time. What were they waiting for? Christmas?

Re:New evidence?

[rsmith]

Their plan (as admitted in interviews) was to withhold "evidence" to the last moment to prevent IBM from preparing a good defence. This is unfair and not allowed of course, which is part of the reason some of their "evidence" was thrown out.

Re:SCO could use the insanity defense

[pla]

Except that they're not the defendants in this case.

I don't know - What about the counterclaims? SCO may have bankrupted itself fighting this battle, but IBM still plans to rape the corpse.


Which is too bad since their twisted and distorted delusional logic would certainly support such an argument.

Fortunately, I don't think corporations can plead insanity.

I say "fortunately", because by their very raison d'etre, corporations very much exhibit antisocial PD (what people normally mean by the phrase "criminally insane"), as defined by the DSM-IV (having three or more of the following traits):

1. Failure to conform to social norms (have no meaning to a corporation)
2. Deceitfulness, manipulativeness (if they can get away with something...)
3. Impulsivity, failure to plan ahead (beyond the next quarter's earnings)
4. Irritability, aggressiveness (if threatened, sue)
5. Reckless disregard for the safety of self or others (OSHA exists for a reason...)
6. Consistent irresponsibility (...so does Sarbanes-Oxley)
7. Lack of remorse after having hurt, mistreated, or stolen from another person (pay 'em off and call it a day)

Letting corporations plead insanity would amount to giving them carte blanche to rape, pillage, murder, and burn the planet.

The Casablanca Dilemma

[hey!]

This is an example of the Casablanca Dilemma, which works like this.

You're in Casablanca. If you are not out of Casablanca on tommorow's flight, you're a dead man. You have your tickets, but you need Captain Renault to provide you with papers. Louis charges a thousand francs for this "service",and you can only raise five hundred.

The only way to double your money overnight is to win big a Rick's roullette tables, which would be very unlikely at an honest table -- which Rick's decidedly are not. Sometimes Rick has been known to take pity on a hard luck case, but there's no special reason for him to help you out of all the other desperate folks. You beg Rick for help, but it's no use. He's already helped one hard luck case tonight, and for some reason he is too distracted to pay attention to anything you have to say.

So you put down your bet at Rick's crooked table, knowing that you are almost certainly a walking dead man. But it's better to keep playing than to stop, and remove all doubt.

Re:SCO could use the insanity defense

[Teresita]

I'm not sure what the corporate equivalent of locking you up in a loonie bin would be.

800 hours of community service chained to Steve Balmer in the Pentagon putting together cheap office chairs from China that are missing parts.

Re:Wrong

[Anonymous Coward]

> Incorrect. It's a contract case. The only copyright infringement claim
> The SCO Group is making has to do with IBM continuing to distribute AIX
> after TSG supposedly terminated IBM's irrevocable, perpetual, fully paid
> up SysV license.

Sorry, but it's you that's wrong Mr Hasler.
Here's a breakdown of those Items that remain:

1 (JFS in Linux): Contract claim
2 (RCU in Linux): Contract claim
23 (Dynix EES in Linux): Contract claim, negative know-how
43 (Dynix TCP in Linux): Contract claim, negative know-how
90 (Dynix EES in Linux): Contract claim, negative know-how
94 (NUMA/SMP in Linux): Contract claim
113-142 (SPIE test suite in Linux): Contract claim
150-164 (STREAMS in Linux): Copyright claim
183-184 (Single Unix Specification ABI header files in Linux): Copyright claim
185 (atemalloc in Linux): Copyright claim
186-192 (misc Dynix stuff in Linux): Contract claim
194-203 (Monterey in AIX for Power): Copyright claim
204 (SysV in Dynix): Copyright claim
205-231 (Single Unix Specification material in Linux): Copyright claim
272-278 (ELF in Linux): Copyright claim

Total remaining items 106
Contract items 43, copyright items 63
Linux items 95, Dynix items 1, AIX items 10

Source: http://www.zen77087.zen.co.uk/nug/alleg/viols.shtm l

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