Slashdot Mirror
The SCO Vs IBM Zombie Shambles On (uscourts.gov)
Long-time Slashdot reader UncleJosh writes:
At the end of last October, the 10th Circuit issued an opinion overturning the lower court's summary judgement in favor of IBM on one of SCO's claims, sending it back to the lower court for trial. Shortly thereafter, IBM filed for a re-hearing en banc. On January 2nd, the 10th circuit essentially denied IBM's request, issuing a slightly revised opinion with the same conclusions and result.
The charge being reheard accuses IBM of "stealing and improperly using [SCO's] source code to strengthen its own operating system, thereby committing the tort of unfair competition by means of misappropriation" -- though that charged is based on an implied duty that SCO says IBM incurred by entering into a development relationship with SCO. "SCO believes that IBM merely pretended to go along with the arrangement in order to gain access to Santa Cruz's coveted source code."
The court's 46-page document adds that "We are now almost fifteen years into this litigation."
The charge being reheard accuses IBM of "stealing and improperly using [SCO's] source code to strengthen its own operating system, thereby committing the tort of unfair competition by means of misappropriation" -- though that charged is based on an implied duty that SCO says IBM incurred by entering into a development relationship with SCO. "SCO believes that IBM merely pretended to go along with the arrangement in order to gain access to Santa Cruz's coveted source code."
The court's 46-page document adds that "We are now almost fifteen years into this litigation."
"We are now almost fifteen years into this litigation and still neither side is broke, like seriously wtf!"
Erm, according to the plaintiff's sorry excuse for a blog, the legal counsel has pledged to continue until they are disbarred or they make a "success" of the case, whatever that means.
You know what's funny...and I'm going to be modded down for this...but if you look at the millions of man-years spent wasting everyone's time on the litigation versus how much time it would take to write a *decent* OS entirely from scratch, you're looking at a 1000000:1 effort.
This is like spending 50 years in the court system over someone jaywalking when he never jaywalked in the first place.
Years of this litigation were documented at https://www.groklaw.net/. The trustee is Edward Cahn.
http://www.groklaw.net/article...
And how fitting that his last name is pronounced "Con" because that's what this whole thing is.
In the very first paragraph of this most recent filing by SCO we see The Big Lie repeated:
The Santa Cruz Operation, Inc. (Santa Cruz) entered into a business arrangement with International Business Machines Corp. (IBM) to develop a new operating system that would run on a more advanced processor manufactured by Intel Corporation (Intel). The parties signed an agreement memorializing this collaborative effort and called it Project Monterey. Another technology company, The SCO Group, Inc. (SCO), then acquired Santa Cruz’s intellectual property assets and now brings this lawsuit for IBM’s alleged misconduct during and immediately after Project Monterey.
The original SCO, The Santa Cruz Operation, sold their Unix business to Caldera. After the sale, Santa Cruz, the original SCO, changed their name to Taligent. It wasn't until a few years later, just before filing their original lawsuit against IBM, that Caldera changed their name to The SCO Group.
The name change was done for the sole purpose of facilitating this lawsuit and creating confusion -- pretending that The SCO Group is the original SCO. An example of this was seen in 2004 when The SCO Group announced on their website the 25th anniversary of the company. The problem is, Caldera, the predecessor to The SCO Group, was only founded in the early 90s. 2004 was the 25th anniversary of the original SCO not the current phoney, pretend SCO.
The point you raise consumed what felt like literally hours of court time during the pre-bankruptcy hearings presided over by Judge Kimball and Magistrate Judge Wells.
There is a helpful article on Groklaw which covers this point:-
http://www.groklaw.net/article...
in which there is discussion of an expression used by Magistrate Judge Wells during an evidentiary hearing. The analogy she used was that The SCO Group were essentially trying to perform the equivalent of accusing a shoplifter from stealing from Neiman Marcus [a US catalogue-based retailer, for non-US readers]. The Magistrate Judge basically told The SCO Group that what they were trying to do was (in accusing IBM of being the "shoplifter") say, "This thing we claim you stole. It's in the catalogue. You figure it out."
The two legal Teams (BSF for The SCO Group and CSM - Cravath, Swaine and Moore - for IBM) duelled on this point during the hearing, with IBM actually using the BSF/TSG cited cases against them, showing that the cases proved the opposite of what BSF/TSG were claiming. Even this wasn't enough to have the claims thrown out by the Magistrate Judge.
I would venture that the only reason that these claims remain and that this entire fiasco is still underway is simply because the original TSG filed for Chapter 11 literally just before a definitive ruling from Judge Kimball that would have blown their case out of the water. I'll go further: TSG filed for bankruptcy when they did precisely because they knew that the ruling would go against them and would sink their case. Their hope was that they could file for Chapter 11, swim along beneath the surface for a bit, then return with a new argument or new case when Judge Kimball got re-assigned. What they hadn't banked on was Bankruptcy Judge Kevin Gross deciding that the reason that The SCO Group got in such a mess was because of mis-management and deciding to appoint a Trustee. In some cases, after all, the Chapter 11 company is allowed to continue under existing management but simply with a protection-from-creditors shield in place long enough for them to be able to dig themselves out from under their troubles. Useful for legitimate Chapter 11 claimants, after all...
I'm bound to mention, as an aside, that in the view of this observer there was something decidedly fishy about the appointment of the Trustee, Cahn. During one of the bankruptcy hearings, Judge Gross made a comment on his decision to appoint a Trustee along the lines of: "Given the nature of the circumstances of this applicant - and the legal nature of their worries - it would be nice if we could find a Trustee with, I don't know, some form of legal background..."
And then, as if by magic, along comes (retired) Judge Cahn to save the day...
What followed - and again, in the view of this observer - was a relationship between Gross and Cahn which stretched the boundaries of due process. It would be an exaggeration for me to say that Judge Gross was fawning over the opinions of Judge Cahn, but it was abundantly clear that the former held the latter in the highest of regard and was entirely willing to let Judge Cahn do pretty much whatever he asked for - the rulings were getting signed off thick and fast and every bit as quickly as they were made.
In a situation like this it is true to say that there were losers all round, but the one thing I found most egregious were the "incidental" victims. For example, I recall that one of the creditors [who didn't get a dime, all the while Judge Cahn paid his own company to conduct legal research into the court case] was a small Mom-and-Pop pizzeria, not far from TSGs offices, who had provided the company with "pizzas on account". I just came away with this vision of Darl McBride and Co all sat round a meeting room table, with open pizza boxes piled high while they filled their faces, only to have them chortling