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| IBM Says No Problem - SCO Can Amend Their Complaint |
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Friday, February 20 2004 @ 04:25 PM EST
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IBM yesterday filed a Memorandum in Response to SCO's Motion to File Amended Pleadings. I would rename it IBM's "Go Ahead, Make My Day" Memorandum. In it they tell the judge that they don't mind a bit if SCO would like to amend their pleadings, dropping the trade secret claims and substituting the copyright infringement based on SCO's serfdom "legal theory" of derivative code. (Thanks to Groklaw reader LionKuntz for the serfdom analogy.) They will answer, if the judge allows SCO's amended complaint, and they will tell all the reasons why they believe SCO's claims are without merit, and personally I am looking forward to that document. Again, it is very clear, IBM is in no hurry to bring this to any early end based on a technicality. They seem to want to get a ruling on the merits that will be a precedent and stand the test of time. The PDF is here. Also, Kevin McBride is moving to sunny California. Maybe it's too hot in Utah? Joke. Joke. Actually, it's too icy. Notice of his new address is here.
**************************************************
SNELL & WILMER, L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
____________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
____________________________
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
____________________________
MEMORANDUM OF
DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM IN RESPONSE TO
PLAINTIFF'S MOTION FOR LEAVE TO
FILE AMENDED PLEADINGS
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
__________________________
Pursuant to DUCivR 7-1(b)(3), Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM") submits the following response to Plaintiff's Motion for Leave to File Amended Pleadings filed on February 4, 2004.
As will be set out in IBM's answer to plaintiff's proposed Second Amended Complaint -- should the Court permit plaintiff to file it -- plaintiff's amended allegations are meritless. Nevertheless, and without conceding the grounds on which the amended pleadings are based, IBM does not oppose plaintiff's second motion for leave to amend, subject to IBM's right to move against the amended pleadings.
DATED this 19th day of February, 2004.
SNELL & WILMER, LLP
_______[signature]____________
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE L.L.P.
Evan R. Chesler
David R. Marriott
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
Of counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address]
Attorneys for Defendant/Counterclaim-Plaintiff
International
Business Machines Corporation
CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of February, 2004, a true and correct copy of the foregoing MEMORANDUM OF DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM IN RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED PLEADINGS was hand delivered to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Kevin P. McBride
[address]
and sent by U.S. Mail, postage prepaid, to the following:
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
__________signature_________
***************************************************
****************************************************
Kevin P. McBride (4494)
[address, phone, fax]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
____________________________
THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation,
Defendant.
____________________________
NOTICE OF CHANGE
OF ADDRESS
Case No. 03-CV-0294
US District Judge: Dale A. Kimball
Magistrate Judge: Brook C. Wells
____________________________
Kevin P. McBride, co-counsel for plaintiff, The SCO Group, Inc., hereby gives notice of change of address. Please serve all further pleadings in this matter to the following:
Kevin P. McBride
[CA address, phone, fax, email]
DATED this 10th day of February 2004.
___________[signed]_____________
KEVIN P. MCBRIDE
The undersigned hereby certifies that a true and correct copy of Notice of Change of Address was served on Defendant International Business Machines Corporation on this 11 day of February 2004, by U.S. Mail, first class, postage prepaid to:
Alan L. Sullivan
Todd Shaughnessy
[address, phone, fax]
Evan R. Chesler
Cravath, Swaine & Moore
[address]
Donald J. Rosenberg
[address]
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| Authored by: Anonymous on Friday, February 20 2004 @ 04:40 PM EST |
Is it possible that this is what the judge was waiting to see before stating her
opinion?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 04:49 PM EST |
Translation:
If SCO wants to paint the gallows on which the'll be hanged blue, that's OK by
us, your Honor.[ Reply to This | # ]
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| Authored by: Mark_Edwards on Friday, February 20 2004 @ 04:50 PM EST |
http://mcbride-law.com/strategy.html
but looking through the pages it seems to read like SCO
PR
and look on the profile page where his links to his
brothers company.
[ Reply to This | # ]
|
- Kevin even has his own website - Authored by: Mark_Edwards on Friday, February 20 2004 @ 04:52 PM EST
- LOL - Authored by: tintak on Friday, February 20 2004 @ 05:06 PM EST
- LOL - Authored by: PJ on Friday, February 20 2004 @ 05:17 PM EST
- LOL - Authored by: Anonymous on Sunday, February 22 2004 @ 04:12 AM EST
- LOL - Authored by: Anonymous on Friday, February 20 2004 @ 05:46 PM EST
- LOL part 2 - Authored by: johan on Friday, February 20 2004 @ 06:38 PM EST
- Kevin even uses a *IBM* ThinkPad - Authored by: Anonymous on Friday, February 20 2004 @ 05:28 PM EST
- Kevin even has his own website - Authored by: Anonymous on Friday, February 20 2004 @ 05:31 PM EST
- Kevin BWHAHAHA!!! - Authored by: Anonymous on Friday, February 20 2004 @ 06:18 PM EST
- And it's not running SCO - Authored by: Anonymous on Friday, February 20 2004 @ 07:12 PM EST
- Is it possible ... - Authored by: RedBarchetta on Saturday, February 21 2004 @ 01:20 AM EST
- Kevin even has his own website - Authored by: Anonymous on Saturday, February 21 2004 @ 12:36 PM EST
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| Authored by: rand on Friday, February 20 2004 @ 04:52 PM EST |
From doc-105:
http://www.mcbride-law.com
And
courtesy of outtascope at Yahoo/SCOX:
http://www.grlawyers.com/welcome.htm
---
carpe ductum -- "Grab
the tape" (IANAL and so forth and so on) [ Reply to This | # ]
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| Authored by: brendthess on Friday, February 20 2004 @ 04:55 PM EST |
I hope that someone got a copy of the document, since it is no longer in Pacer's
holding area.... Anyone?
---
I am not even vaguely trained as a lawyer. Why are you listening to me?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 04:57 PM EST |
Seeing as we find this in the amended complaint:
section 184
Misappropriation of source code, methods, trade secrets
and confidential information of plaintiff
why is it claimed that SCO is *dropping* its
trade secrets complaint? This has come up often,
and seems to even be the belief of the IBM lawyers,
but it looks like SCO is persisting.
IANAL, so an explanation would help me out here a lot. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 04:58 PM EST |
Check out K. McBride's photo at mcbride-law.com...
Does that look like a guy digging in for the long haul? Cell phone, laptop,
rent-a-desk-by-the-beach?
Yowsah![ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 04:59 PM EST |
I'm going to miss Kevin. He was one of our best allies -- though he didn't mean
to be.
Scott McKellar
http://home.swbell.net/mck9/sco/[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 05:01 PM EST |
Is it a requirement that lawyers must explicitly remind the court of their
clients' rights in every filing? Is failure to explicitly claim rights grounds
for revoking rights? How much can these things be "rights" if they can be
revoked for failing to mention them?
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 05:05 PM EST |
The judge may be trying to work a manner in which the case can go ahead. IBM
obviously wants to. From many points of view this could be a landmark case that
will be important in defining intellectual property law for years.
On the other hand, what TSG has offered so far is so pathetic that she may be
having a problem trying to identify a pseudo-merit that might at least shim up
the TSG case long enough to get it to court without it collapsing on its own.
The TSG side of the case in general, and as documented so thoroughly on GROKLAW,
is in continuous danger to sinking into the mire of corporate incoherence and
contradiction.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 05:07 PM EST |
So is he getting ready to relitigate USL vs UCB? Or is their next target going
to be located in California? Or does it make any difference from our
perspective what state he lives in?[ Reply to This | # ]
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| Authored by: TerryL on Friday, February 20 2004 @ 05:22 PM EST |
| Didn't someone on here point out a short while ago that when SCO filed something
they simply listed themselves as Plaintiff and IBM as Defendant
whereas IBM always included the Counterclaim status as well?
I notice this
time SCO have listed themselves as Plaintiff/Counterclaim-Defendant and
IBM as Defendant/Counterclaim-Plaintiff.
Is this a sign they are
reading and learning????
---
All comment and ideas expressed are
my own and do not necessarily reflect those of any other idiot... [ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 05:25 PM EST |
I read somewhere that copyright infrigement claims have a limited maximum
judgement. Could this be why IBM is happy to have them change their case?[ Reply to This | # ]
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| Authored by: rand on Friday, February 20 2004 @ 05:31 PM EST |
| As I pointed somewhere else I'm a true Californian, and we
Californians can accept just about anybody except anonymous troglodytes.
MathFox, PJ, keep an eye on this thread, please. ---
carpe ductum -- "Grab
the tape" (IANAL and so forth and so on) [ Reply to This | # ]
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- TROLL ALERT - Authored by: PJ on Friday, February 20 2004 @ 06:12 PM EST
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| Authored by: Anonymous on Friday, February 20 2004 @ 05:39 PM EST |
| Alleged MP3 Pirate Sues RIAA, Says Group Uses Mafia Tactics
Mafia
tactics, Mafia tactics, ...
Hmm, why does that sound so familiar??
[ Reply to This | # ]
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| Authored by: eskild on Friday, February 20 2004 @ 05:41 PM EST |
I beleive that when IBM have eventually chrushed SCO, they will buy the debis
for 1$ total
---
Eskild
Denmark[ Reply to This | # ]
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| Authored by: red floyd on Friday, February 20 2004 @ 05:43 PM EST |
You're joking, right?
<DISCLAIMER type="standard">I live in California. Los Angeles
to be precise</DISCLAIMER>
---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.
[ Reply to This | # ]
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| Authored by: PJ on Friday, February 20 2004 @ 05:48 PM EST |
Groklaw is not the place to push stock. I have therefore removed the
post encouraging same.[ Reply to This | # ]
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| Authored by: daavery on Friday, February 20 2004 @ 05:49 PM EST |
| link to mcbrides COA filing is pointing to doc 106 not doc 105 [ Reply to This | # ]
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| Authored by: Nick_UK on Friday, February 20 2004 @ 05:50 PM EST |
IANAL and bollocks...
Now, thanks to PJ and Groklaw, it gave me an insight (and the world) to the real
legal stuff; but most is always in legalese to stay the least (and BIG
documents - heavy reading anyway).
So, from this:
"As will be set out in IBM's answer to plaintiff's proposed Second Amended
Complaint -- should the Court permit plaintiff to file it -- plaintiff's amended
allegations are meritless. Nevertheless, and without conceding the grounds on
which the amended pleadings are based, IBM does not oppose plaintiff's second
motion for leave to amend, subject to IBM's right to move against the amended
pleadings."
I get lost. I can [sort of ]read it up until "...IBM does not oppose
plaintiff's second motion for leave to amend, subject to IBM's right to move
against the amended pleadings."
So WHAT does that mean in English?
IBM accept that they do not oppose the amended (whatever), but the next bit says
they have the right to oppose against it anyway if it is amended. So why do
they _not_ oppose it in the first instance?
Help anyone, - that speaks English?
Nick[ Reply to This | # ]
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- Legalese translated - Authored by: Tsu Dho Nimh on Friday, February 20 2004 @ 06:03 PM EST
- Lawless - Authored by: Anonymous on Friday, February 20 2004 @ 06:04 PM EST
- Lawless - Authored by: Anonymous on Friday, February 20 2004 @ 06:08 PM EST
- No opposition to letting SCO change their story as long as... - Authored by: Anonymous on Friday, February 20 2004 @ 06:10 PM EST
- Lawless - Authored by: PJ on Friday, February 20 2004 @ 06:15 PM EST
- Lawless - Authored by: bobn on Friday, February 20 2004 @ 06:22 PM EST
- Lawless - Authored by: stend on Friday, February 20 2004 @ 10:47 PM EST
- Lawless - Authored by: Ed L. on Friday, February 20 2004 @ 06:39 PM EST
- Lawless _> thanks - Authored by: Nick_UK on Friday, February 20 2004 @ 07:01 PM EST
- Lawless - Authored by: Anonymous on Friday, February 20 2004 @ 07:42 PM EST
- OT: Legalese or englisch - Authored by: Anonymous on Friday, February 20 2004 @ 08:20 PM EST
- Lawless - Authored by: webster on Friday, February 20 2004 @ 09:17 PM EST
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| Authored by: jmc on Friday, February 20 2004 @ 05:54 PM EST |
Can't IBM say "but we'd like all the expenses and charged time racked up
arguing about the previous two versions including the trade secret allegations
now dropped"?
[ Reply to This | # ]
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| Authored by: Tomas on Friday, February 20 2004 @ 05:58 PM EST |
Does it strike anyone else that IBM took nearly two weeks of going over the
ammended complaint in detail before saying "make my day" to
Caldera/SCOG?
What this hints to me (from watching the legal department of the Fortune 500 I
worked for for 25 years) is that they probably already have every item rough
answered in at least outline form before they filed their memorandum.
I suspect that IBM's legal team thoroughly researched each and every item and
already knows exactly how they will play this.
It may not be the judge's decision we've all been waiting for, but this feels to
me like a GOOD sign. IBM is not a company to jump into things without looking
first.
I agree with everyone who has said that neither IBM nor the court want this to
end prematurely on some sort of technicalities.
I also suspect strongly that IBM, at least, won't be happy with this case until
SCO is ground into a fine pink paste and spread on the Gates of Armonk as a
warning to others.
(Ick!)
---
--
Tom
en.gin.eer en-ji-nir n 1: a mechanism for converting caffeine into designs.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 06:04 PM EST |
IBM to Court: It's all a load of cod's wallop and hooey, Your Honor, but if they
wish to hock it on Your Honor's floor, we have no objection.[ Reply to This | # ]
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| Authored by: LvilleDebugger on Friday, February 20 2004 @ 06:04 PM EST |
| The parent comment implies a threat. Not appropriate. [ Reply to This | # ]
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| Authored by: Steve Martin on Friday, February 20 2004 @ 06:13 PM EST |
Nevertheless, and without conceding the grounds on which the
amended pleadings are based, IBM does not oppose plaintiff's second motion for
leave to amend, subject to IBM's right to move against the amended
pleadings.
Two questions about this:
- IBM
does not oppose plaintiff's second motion for leave to amend,... -- Did SCO
file two motions for leave to amend, or was one of these motions
related to the first amended complaint? If this was related to the recent
request, I must have missed something.
- ... subject to IBM's right
to move against the amended pleadings --- this sounds like IBM might be
preparing something interesting, oh say, a motion of some sort against SCO's
pleadings. How likely is it that IBM is reserving the right to move to
dismiss?
---
"When I say something, I put my name next
to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: kjb on Friday, February 20 2004 @ 06:24 PM EST |
Kevin even does magic!
"the invisible hand of capitalism driven by passionate, rewarded self
interest"
http://mcbride-law.com/ipp.html
---
"No! Try not. Do, or do not. There is no try."
- Yoda[ Reply to This | # ]
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| Authored by: Jude on Friday, February 20 2004 @ 06:36 PM EST |
| IBM lawyers, sitting in their M1 battle tank, shout out to referee:
"No,
your honor, we don't mind if he drops his sword and uses a spear
instead".
[ Reply to This | # ]
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- Heh. - Authored by: Anonymous on Friday, February 20 2004 @ 07:16 PM EST
- Heh. - Authored by: Tomas on Friday, February 20 2004 @ 09:03 PM EST
- Heh. - Authored by: Anonymous on Saturday, February 21 2004 @ 12:37 PM EST
- Heh. - Authored by: Newsome on Friday, February 20 2004 @ 07:17 PM EST
- Heh. - Authored by: Anonymous on Saturday, February 21 2004 @ 09:08 AM EST
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| Authored by: ErichTheWebGuy on Friday, February 20 2004 @ 06:40 PM EST |
If I were SCO, IBM's acceptance would scare me more than anything that has
happened thus far. In fact, IBM's "go ahead, make my day" attitude in
general since the beginning would be scary.
They have nothing, IBM knows it, and SCO knows it. SCO has got to be trembling
in the face of IBM's fire-breathing 18-foot tall lawyers promising a slow yet
certain death...
---
Striving daily to be RFC-2550 compliant[ Reply to This | # ]
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| Authored by: gnutechguy99 on Friday, February 20 2004 @ 06:41 PM EST |
Why did this take two weeks? Those crack IBM lawyers (AKA the Nazgul) did not
need two weeks to file a roughly 100-word response.
Does this timing hint that IBM and the Judges are on the same page with respect
to this latest shuck and jive maneuver by SCO?
Can either Judge Kimball or Wells say "Yes SCO, we accept your amended
pleadings, and or by the way here is IBM's motion for summary judgement" ?
Does this bode well? My instincts say this is all good, but IANAL.[ Reply to This | # ]
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| Authored by: mjscud on Friday, February 20 2004 @ 07:01 PM EST |
One response to the Novell motion to dismiss that seems reasonable to me is that
Judge Kimball might dismiss the TSG vs Novell case with words something like:
This case is dismissed because, among other reasons, TSG does not own the
copyrights in question. I am not here ruling as to whether Novell is
contractually required to transfer the copyrights to TSG, but as a matter of law
based on the documents in this pleading, TSG does not currently own the
copyrights.
In this case, would it then make sense for Judge Wells to deny almost all of the
discovery which TSG is asking of IBM, being that the arguments for that
discovery depend on copyrights which would then have been legally determined not
to belong to TSG?
If this outcome is indeed contemplated by Judge Kimball, it would possibly
explain Judge Wells delay.
---
Even a fool, when he keeps silent, is considered wise. Proverbs 17:28[ Reply to This | # ]
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| Authored by: brendthess on Friday, February 20 2004 @ 07:23 PM EST |
It's amazing how much threat can be conveyed by the quiet legal phrasing in
such a short document, isn't it? "We've looked it over, there's nothing to
worry *us*, so go ahead and change it if you thinh it will help you..."
Brrr......
Almost like saying "Mufasa" to a hyena, hmmm?
[2 points for the first correct citation of the reference]
---
I am not even vaguely trained as a lawyer. Why are you listening to me?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 07:23 PM EST |
Do we know if this document was requested from IBM by the courts or if IBM just
decided it was something they wanted to proactively provide to the courts?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 07:49 PM EST |
This was there plan all along.... from my post on the yahoo group...
An analogy
Lets say I leased a GM car for 2 years 3 years ago. 99-01
Lets say in 00, I upgraded the stereo.
in 01 I give up the car, but I take the radio from the car and put in a new
one.
Now 3 years later, the eventual owner of the car sues me, saying I lowered the
value of the car by taking parts from it and putting it into my new car.
The new owner has the inventory of my new car, and an inventory of my old car.
He asks me for the invoices for everything i added to the car and claims
publically that I took alot of GM parts off the car too.
I keep the receipts away from him and ask him to clarify which GM parts he
thinks I took.
He says, "No fair I need those invoices, look he's hiding the fact he added
alot to the car!"
I say, I'll give them, but first you need to tell me what I took that was GM's.
The judge agrees, says, "as soon as you tell him what he took that was
GM's, information that you should know, I'll order him to give you the invoices
of the addons".
He says, "well, I couldn't really find anything he took that was GMs, but I
found alot of things in his new car which he must have bought at the time he
owned the old one! And once i have the receipts I can prove that. In my theory
of leasing, everything that is added to the car becomes a part of the car, and
is owned by the real owner of the car. Thus, those parts should remain in the
car, and I have a lesser valued car because they were removed."
I say, "So you admit that I never took anything that was GMs?"
He says, "Yeah yeah, I agree, just give me the friggen receipts"
I say, "Sure, here they are, and here is GM's statement made at the time I
leased the car, stating that everything I buy for the car is my property and
that they waive all future claims to it. Btw, what were you suing me for?"
That is where we are now....
So IBM wanted SCO to admit that all their alleged infringment was in deriviative
works. Because they had a trump card on that.
Now they're saying... ok... let them amend their claims to just the derived
works. The faster the better... because once they do that, they have no case.
[ Reply to This | # ]
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| Authored by: Sunny Penguin on Friday, February 20 2004 @ 08:35 PM EST |
I can see the SCO Spin press release now:
"IBM admits SCO copyright infringment."
We have complete faith in our "IP" claims, Buy our stock, here we will
even sell you our own personal stock, all of it!
---
Litigation is no sustituite for Innovation.
Say No to SCO.
IMHO IANAL[ Reply to This | # ]
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| Authored by: RDH on Friday, February 20 2004 @ 08:49 PM EST |
| The only way I can make sense of everything that is going on is by creating more
bizarre situations. Unfortunately, I have a hard time with this case. They say
truth is stranger than fiction... and, boy, they were not kiddinng.
This is
satire. If the concept is foreign to you, or if you are completely devoid of a
sense of humor, please do not read any further. Satire is intended to poke fun
at an issue or otherwise make a person think about the issue in a different
light. Anyone who takes this as the literal truth needs to stay away from
satire.
**************************************************************
IBM Green Lights SCO Amendment
Scud News Service
20 February
2003
Lindon, Utah – The International Business Machine Corporation (IBM)
filed a brief with the Utah District Federal Court to allow The SCO Group (SCO)
to amend the original complaint. It is now a matter of whether Judge Brooke
Wells will allow for the amended complaint.
While IBM did not engage in
announcing to the press their recent decision to approve an amended filing, SCO
placated the press corps. None other than Darl McBride, CEO of SCO, was on hand
to make the announcement.
Mr. McBride was wheeled out on a handcart. To the
amazement of everyone, he was wrapped head to toe in layer upon layer of
aluminum foil. Two plastic drinking straws were were seen in the general region
of the face and presumed to be used for breathing. Chris Sontag, senior
vice-president and general manager of SCO, was on hand to actually read the
press release.
“We are pleased to announce that IBM has shown the foresight
and wisdom to accede to our motion to file an amended complaint,” Mr. Sontag
stated. “Given the weight of the evidence we have presented regarding IBM's
infringement on our copyrights to UNIX, both sides did not feel it was proper to
belabor the point in court.”
At this time, Mr. McBride's foil-wrapped body
wriggled in place.
“Darl concurs,” Mr. Sontag added while staring at the
shiny figure, and continued, “SCO has further decided that the scope of the case
needs to progress along reasonable lines of discovery and inquiry, and the issue
of copyright infringement is not what this case is about as we have stated time
and again.”
Mr. McBride wobbled once more.
“Right, Darl. IBM, we feel,
was backed into a position of accepting our offer to limit the case to the most
salient issues. Although we have not spoken to David Boise in some time, we feel
he is also in agreement with this decision. This case has dragged on for far too
long for anyone's taste. The need to reach a quick resolution on the important
points we think we can prove is a vital necessity if our stock price... er, skip
that.”
Mr. McBride's physical movements became more energetic, and the
gathering of reporters could only speculate as to what it signified when Mr.
Sontag was not forthcoming with an explanation.
Mr. Sontag then opened the
floor to questions. There was only one major point that every reporter
asked.
“Darl has carefully considered his position and recent events with
MyDoom. As such,” and then Mr. Sontag hesitantly cleared his throat. “As such,
Darl thought it prudent to encase himself in aluminum foil to stop the mind
control waves that emanate from every IBM product from affecting his judgment as
the CEO of a major corporation. He has also sent a memorandum to Judge Wells and
Judge Kimball stating they should do likewise. Darl does not want the case
biased by invasive IBM thought control electro-magnetic pulses.”
Muffled
shouting could be heard coming from the foil-entombed form of Mr. McBride. His
limited actions became extremely robust, and he fell from the handcart. At this
point, two rather burly and large men wearing SCO polo shirts rushed out,
grabbed Mr. McBride, and hauled him through doorway out of sight.
“I hope
you all realize how serious Darl and SCO is about these issues,” Mr. Sontag
stated. He then brought the press conference to a close.
(CL) 2004 RDH, Ltd. [ Reply to This | # ]
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| Authored by: lpletch on Friday, February 20 2004 @ 08:49 PM EST |
SCO Releases Update Pack 2 for OpenServer.
Release
Notes warn against use.
WARNING
+ USB printer support
is not designed to replace parallel printer support for existing installations.
We strongly suggest that you retain an existing parallel connection
rather than switch to the USB interface. It is likely that the printer will
behave differently than you have come to expect. If you want to attach a new
printer to your system and the printer provides both a parallel interface and a
USB interface, we suggest that you use the parallel interface.
Our testing suggests that many printers supporting both interfaces deviate from
the USB specification.
They also boast of support for four
different printers.
The following printers have been tested and
appear to work:
Canon BJC-85 (configured with GIMP-print driver)
HP
LaserJet 4 with D-Link USB to parallel converter cable
HP Photosmart
P1000
Epson Stylus C82 (configured with GIMP-print
driver)
And if you have any problems simply REBOOT
?
USB printer hang issue
Under certain circumstances, USB
printers have been observed to hang during a print job and cannot be accessed
without a reboot. A fix for this issue will be made available as a Support
Level Supplement (SLS). The current workaround is to simply reboot the
system.
---
lpletch@adelphia.net [ Reply to This | # ]
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| Authored by: blang on Friday, February 20 2004 @ 09:16 PM EST |
I am wondering what the judges think about this case.
After all, it isn't like the MS case, with public hearings with all sorts of
famous people, or like the OJ Simpson case. Likely it won't even be mentioned
on court TV, and will only get scant mention in the tech section in newspapers.
After all, on the surface it looks like just another boring business dispute,
involving stacks of complicated contracts, millions of lines of cryptic computer
code. Normally such a case would not even hit the news untill a settlement or
verdict had been reached, and only if SCO actually won $3 bilion in damages. To
judge Wells and Kimball, it would have been just another day on the job. Even
the most controversial parts of the case appears to be slam dunks with plenty of
case history for support. As another poster mentioned, any potential for this
case of being a landmark case about copyrights is minimal, given the very weak
evidence SCO has presented so far. No need for the judges to say 1+1=2.
They'll just have to say 1+0=1.
But before the case even has started, there are 1000's of people following the
case every day. Even on what appeared to have been a routine hearing about
discovery managed to fill the court room in Utah.
The spectators in this case read almost every single document, and form opinion
and discuss freely. In other high profile cases, there's plenty of TV coverrage,
but the analysis is superficial, opiniated, and almost worthless. In this case,
the spectators suck up ALL details of the case, without the dumbifying filter of
the main stream press.
I think this is absolutely unprecedented. It is incredibly valuable that PJ with
her background as paralegal can offer her take on things. Usually us nerds
speculate wildly about law in a vacuum. This time we speculate wildly as well,
but with the help of a legal hand that can quickly explain to us how the court
system works.
I hope the IBM lawyers take the time to go through these archives and relish
their superstar status when this thing is over.
I also hope that the SCO lawyers, and teh SCO principals get plenty of time to
reminesce about all this. If the outcome of this case is what we all hope for,
we can say "We told you so! If you'd listened as much as you had talked,
you wouldn't have wasted $50 million of other people's money on this vile and
futile attack against the open source movement".
I'll finish with a question:
As we have learnt, judges determine questions of law, while juries determine
questions of fact.
Does SCO need to come up with actual facts to support their claims during
discovery? How much control does the judges have over which facts are
admissable to the court. Can SCO come up with last-minute evidence that was not
part of discovery?
Say SCO claims something that has no merit, and failing to provide discovery
supporting that claim. Can the judge decide that the claim can not be made to
the jury, or can SCO insist on presenting the claim to the jury, hoping to make
a case out of nothing?
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 09:37 PM EST |
IBM has nothing to fear from the new charge that SCO added.
SCO is claiming that IBM owes it 2 billion for continuing to use AIX after SCO
sent IBM a notice revoking its license for allegedly violating its terms. There
are at least three things blocking this charge:
1. The license is irrevokable.
2. SCO never informed IBM of the specifics of the alleged violation.
3. Novell exercised its rights under the APA and canceled SCO's action.
To win, SCO would have to persuade the court that all three of these objections
are false. This new charge is even less likely of winning than the old ones. I
think it was just an attempt to forestall the disaster that SCO sees is rapidly
approaching. However, since points 1 and 3 are matters of law, IBM can probably
get it dismissed with a motion.[ Reply to This | # ]
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- And 4 ... and 5 - Authored by: Anonymous on Friday, February 20 2004 @ 10:06 PM EST
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| Authored by: Anonymous on Friday, February 20 2004 @ 09:50 PM EST |
| Here is something I am wondering about. Last week Novell sent SCO a notice
forbidding them from suing IBM over the Dynix code that IBM bought from Sequent
link
W
hat I am wondering about is why Novell waited until now to do this. It seems to
me that they had the legal right to do it way back when SCO first filed the
lawsuit last year.
Was SCO waiting to complete the SuSE purchase, and if
so, why was that relevant? Did IBM want Novell to wait until some of the
discovery was done? Or maybe there was some other reason. Does anybody have
any ideas? [ Reply to This | # ]
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| Authored by: webster on Friday, February 20 2004 @ 10:02 PM EST |
IBM is hardly behaving in a superlitigator fashion. Why aren't they making them
sweat blood. Why aren't they opposing them at every opportunity? What happened
to the type of lawyers that would slap their grandmothers to get in the last
word?
The answer is that they have won already. They are sitting "jest as fat
'n' as sassy as a Morgan horse in a barley patch." SCO is sweating blood
spontaneously. Apparently the FUD is no longer working. IBM is still making
billions on Linux so there is no hurry.
SCO has erred. They can not provide full discovery as required because they
can't specify "millions of lines of code" that IBM stole and put in
Linux. They are amending and going after a tortured contract interpretation to
put up a brave face on their suit. They are pursuing a preposterous header file
copyright. They had to abandon their major claim.
Not only can they not prove their claim, this gross omission proves a
significant counter claim by IBM and Red Hat too. Their accusations were either
lies or wrong. They will have to pay for this. They can abandon the
infringement claim but it proves the business slander counterclaims. So any
possible damages they win will be offset by the counterclaims. They can't later
produce what they refuse or can't produce now to either bolster a claim or
defend themselves.
So IBM is content to let them cave in now or play it on before they dive into
the meatgrinder. They will play on due to the stock shenanigans. After all
they have generated a few million out of nothing.
---
webster[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 10:50 PM EST |
IANAL. I think that IBM wants this case to go all the way to a decision. That
way they can finally put the "derivative works" issue to a legal
precedent and avoid future litigation on his issue. I. e. Microsoft and OS/2.
lvteacher[ Reply to This | # ]
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| Authored by: Night Flyer on Friday, February 20 2004 @ 11:24 PM EST |
Is there a judge reading GROKLAW?
The judge in the IBM-SCO case must be aware of how closely every nuance is being
followed by noting:
1.) Who is in the court room.
2.) That court documents are posted in a coordinated fashion on a discussion
web site (GROKLAW) with a world-wide following.
3.) That Harvard Law school is watching it.
4.) That journalists (more than usual) are asking more pointed and educated
questions than usual.
5.) That other jurisdictions (Germany, Poland, Australia, and elsewhere in the
US) have related cases and are watching with interest.
She is probably quite aware that the outcome may affect how software will be
written in the future (open source with contributions by many with a central
coordination vs closed source, M$ model).
I agree with another post that this is not likely to be a significant case in
terms of a legal precedent, but I feel it probably will affect and shape an
entire industry, which is important to all of us.
Question I have wondered about:
How does this judge (and other judges) feel about the outcome of the Microsoft
trial(s)? The judgement(s) seemed to me that M$ broke the law, but received
only a light slap on the wrist, for what seems to be serious abuses of a its
near monopolistic position in the OS's, office suites and browsers markets.
This shapes how M$ runs its business.
If I were a judge, and the consequence of a judgement did not seem to match the
severity of the crime, I would be angry/concerned/disillusioned or something
along these lines.
As an outsider, (I am not in politics or the law profession) I have the
impression that the change of the President (Clinton to Bush) and the view of
the Executive Branch towards big business in general, and M$ in particular,
greatly influenced the reduction in consequences that M$ faced (faces).
If this is true, how does this affect how a judge conducts a case?
Does this, in any way affect how the IBM/SCO proceedings are run?
It appears IBM does not want an out-of-court settlement or summary judgement. I
presume this judge does not want a mistrial. I presume that this judge (and all
other judges) do not want to be overturned on appeal. I presume that this judge
wants his court to appear to be competent in the eyes of the world. If I were
the judge, I would be really careful to follow the letter and the spirit of the
process.
How would this judge feel about a sealed record as in USL/BSDi? To a judge, is
this a satisfactory outcome? (Yes this may be satisfactory to the antagonists
in court, but it may not be satisfactory to the larger community.) How much
importance do judges give to the larger community, as compared to the
antagonists in their courtrooms?
Does this (or other) judge(s) think that somehow the system failed the average
consumer in the M$ outcome? And there needs to be a repositioning of the
competitive balance in the software industry?
Do judges confer with each other during a case?
Do judges have a staff to help them with research on various technical points
and points of law, or do they depend on the arguments presented in their courts
and their own "judgement"?
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, February 20 2004 @ 11:56 PM EST |
That has to be one of the best responses I've ever read. Classic. Translation:
"We have no objection if they amend their groundless complaint."[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 21 2004 @ 01:00 AM EST |
| That makes sense. SCO's new claims are so badly drafted that they aren't going
anywhere in court. They actually put the "GPL is unconstitutional" claim in
their filing. The new claims are clearly intended to hype the stock. It's
working, too. The stock is almost up to $14.
Cravath is, as is usual
for Cravath, using a "defeat in detail" strategy. Cravath doesn't make many
mistakes; their whole system is set up to check and recheck everything, at huge
expense to the client. Every dumb thing SCO says or does in any forum will be
found, noted, entered into a litigation support system, analyzed, and responded
to at the appropriate time. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 21 2004 @ 02:55 AM EST |
As well as being a skilled IP lawyer, KMcB is apparently an economics expert -
see here.
Unfortunately his
economics appears to be as doubtful as his law. As Encarta notes on Adam Smith,
"this view [that interference with free competition by government is bad] has
undergone considerable modification by economists in the light of historical
developments since Smith's time", so he's a bit out-of-date.
But
given those sentiments, I do begin to wonder if he's the driving force behind
the whole "GPL is immoral and unconstitutional" line. Does anyone know of any
respectable economic analysis of the GPL to counter the SCO FUD? I assume there
must be some.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 21 2004 @ 06:06 AM EST |
IBM did this to save money. Nothing more, nothing less. They don't want SCO to
have to bring a completely new suit.
[ Reply to This | # ]
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| Authored by: blacklight on Saturday, February 21 2004 @ 07:27 AM EST |
So the Kevin is moving to Cali? Many people move there to reinvent themselves,
and I would suppose that the Kevin is in dire need of that. Unfortunately, no
amount of self-reinvention can give anyone a new set of brains and losers are
losers regardless of how extreme their makeover is.
I suppose the SCO Group's formidable trade secret violations charge would have
been punctured the minute IBM points out that the SCO Group has been
distributing Linux from its own website for years. Now, the SCO Group wants to
substitute a copyrights violations charge that is vulnerable to a one-paragraph
friend of the court brief by Novell to the effect that Novell is the owner of
the copyrights. The rag trade press pundits were wrong: the trial is not
supposed to start until March 2005, and yet we already know what the outcome
will be - It's all over but for the mechanics of the trial itself.[ Reply to This | # ]
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| Authored by: johne417 on Saturday, February 21 2004 @ 10:38 AM EST |
Don't get me wrong, I run Mandrake, am an open source nut and I hate SCO just as
much as the next guy. But what exactly is the point of posting McBride's home
address in a forum of hardcore Linux advocates? Yeah, I know about public
domain and all that, but still...we all know the audience here and while 99.9%
of open source advocates are good people, there's always those few bad apples.
Darl's home address was posted on /. (which I thought was extremely shady of /.
to allow) and he got harassed at home. Ethical concerns of personal/private
harassment aside, he has used it as a publicity ploy to garner sympathy. I
guess I just fail to see how posting McBride's exact address is directly
relevant to the discussion at hand (the case).[ Reply to This | # ]
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| Authored by: the_flatlander on Saturday, February 21 2004 @ 12:14 PM EST |
IBM says okay, the SCOundrels can amend their complaint.
But this just plays right into the SCOundrels' hand. Why? Because later, after
they lose, they will appeal claiming that IBM *improperly* agreed to their
request to amend. They will demand a do-over with the second amended
complaint.
Really, this is just too obvious, I can't believe IBM fell for it....
;^)
The Flatlander
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 21 2004 @ 11:30 PM EST |
My PIG (Pure Ignorant Guess) on this is that their Honors Wells & Kimball
want to throw the whole thing out... but need some motion from IBM to do this.
But IBM is saying not without prejudice and/or sanctions for SCO, which they
[judges] are reluctant to issue without more concrete grounds, which SCO has
weaseled just enough to avoid providing.
This is IBM's gentle (as in gentle for an 800 lb gorilla) way of reminding the
judges that they're willing to ride this dead horse until the bones turn to
dust.
At this point, with such a lame opponent, IBM wants every precedent and holding
in their back pocket they can get ... I suspect that they suspect that SCO
crumbles, the Beast from the Great Northwest will just send in another patsie.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, February 22 2004 @ 11:30 AM EST |
Hi. IANAL. IANAUSAC (i am not a USA citizen). IAIITA (I am interested in this
anyways). First post (and probably last, everything is quite clear)
So far, I've managed to understand what is the basis of SCO's claims. I
definitely understand IBM's position in this. I understand why SCO keeps
changing terms, mentions, information, claims, ... . And I'm really enjoying how
it's all unfolding. Better than a novel :)
What I want to know here is: If SCO changes their stuff (again), why do IBM not
tell "if you retire from that claim, you are basically telling it was
groundless and we won that part. Why don't we simply suspend that point, come
back to it later when the first dispute will be settled, after all you attacked
us legally on this ground and we want ALL aspects of this affair to be
resolved".
Thanks
Mike
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, February 22 2004 @ 08:04 PM EST |
I for one sure don't want SCO to fold so soon. I don't want the show to end. I
love McBride, he's better than Andy Kauffman.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, February 22 2004 @ 08:13 PM EST |
These guys are not losing any patience at all. Gotta love how cool they are.
I just can't wait for the moment when SCO lawyers start explaining to the judge
their "derivative works" theory without a single line of original
System V code being present in the derivative. That's going to be real
entertainment.
Actually, when I think about the whole thing again, IBM isn't actually doing
anything special to counter this whole thing. SCO case is so full of holes that
they are their worst enemies. Poor shareholders - they should be really worried
about their money being spent on all those expensive lawyers. Poor lawyers -
they have to handle a case with zero substance. Kinda feel sorry for SCO. Then
again, nah, not really :-)[ Reply to This | # ]
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