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SCO Asks for Another Delay in IBM Lawsuit
Wednesday, April 07 2004 @ 11:51 PM EDT

One day after the Red Hat judge said she would stay proceedings in that case while the IBM case was going on, but that "if the Utah litigation is not proceeding in an orderly and efficient fashion the court may reconsider the stay", SCO has asked for another delay in Utah.

[wipes away tears from laughing so hard]

Robert McMillan has the story. Here is the Motion to Amend the Scheduling Order; and here is the Memorandum in Support.


  


SCO Asks for Another Delay in IBM Lawsuit | 135 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Go Newsome! Tuxrocks has the docs
Authored by: Anonymous on Thursday, April 08 2004 @ 12:10 AM EDT

Site is here.

motion, memorandum.

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: inode_buddha on Thursday, April 08 2004 @ 12:11 AM EDT
Hoo, wow. SCO just said the IBM was "untimely"? I thought I had a
thick skin, but this really got my attention. I guess I should be used to it by
now - and thanks for the best laugh I've had in a *long* time!

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: JustFree on Thursday, April 08 2004 @ 12:11 AM EDT
This is an obvious delay tactic. SCO Group knows that it can not fight on
several fronts, unless it is on their term. Is SCO Group scared? Hmmm. I wonder
if they really have a case against IBM. When will investors notice that SCO
Group’s litigation is all smoke and mirrors?

---
as in free speech get it.

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: DaveF on Thursday, April 08 2004 @ 12:13 AM EDT
What a bunch of losers! Man, they just don't get it, do they?

---
Imbibio, ergo sum

[ Reply to This | # ]

what are the chances?
Authored by: dbc on Thursday, April 08 2004 @ 12:16 AM EDT
OK, help a dumb engineer understand the legal stuff. I gather this is "+5
funny" to those that understand Civ Pro... I need a clue.

Aside from that, what are the chances of this motion succeeding? SCO has
already been pressed by the judge(s) to move forward on discovery. Does this
motion have legs or is it a low percentage "part of the game" sort of
move?

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: Anonymous on Thursday, April 08 2004 @ 12:16 AM EDT
Robert McMillan says that the judge "ordered SCO to provide more details
about the intellectual property violations IBM is alleged to have
committed," but the delay was, of course, caused by SCO not being
forthcoming with _their_ discovery. It takes a lot of gall for SCO to then blame
the delay on IBM after the judge ordered IBM to wait on SCO. This seems unlikely
to set well with the judge. Does SCO have a death wish?

billwww (formerly adicted to proprietary solutions)

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: bsm2003 on Thursday, April 08 2004 @ 12:16 AM EDT
Do I here a Judgment In favor of Ibm On the 19th?

[ Reply to This | # ]

SCO Asks for Another Delay
Authored by: icebarron on Thursday, April 08 2004 @ 12:17 AM EDT
I expected as much, with no proof, no hope of showing code, they are trying to
resort to delay tactics. It's time to bring some pressure to bear on this ugly
company once and for all. NOW is the time for the Judge to insist on evidence to
go forward. It's time for the SEC to begin their own inquiry. Now to see if my
guess was correct about their involvement in this whole scheme of IP smoke
screen for personal enrichment....

Dan

[ Reply to This | # ]

"BM's untimely responses to discovery?"
Authored by: Khym Chanur on Thursday, April 08 2004 @ 12:18 AM EDT
Huh? Are they talking about IBM not handing over every single revision of AIX, ever? But hadn't the judge told IBM not to hand any more AIX code over, and only changed that last sometime in March? I mean, it seems like SCO is indirectly criticing the judge here. What with them blabing to the eWeek in spite of her request, it's like they're trying to piss her off.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be worm for the rest of his life.

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: Anonymous on Thursday, April 08 2004 @ 12:21 AM EDT
Your honor, it's only fair that we get a delay, since you wouldn't give us all
that we asked for in discovery until we complied with your order, and that
took us months!

I mean, IBM only provided us with the AIX code on the day that the court
lifted their stay of discovery, and didn't just mail it to us the first time we

mentioned that we might like to dig through it for some of our IP... It's not
*our* fault we haven't found any yet. Hey, could you ask IBM to highlight the
pages that contain our IP, please?

[ Reply to This | # ]

Since SCO is working for SUN and Microsoft... then delay is what they are paid to do!
Authored by: Anonymous on Thursday, April 08 2004 @ 12:27 AM EDT
Since SCO is working for SUN and Microsoft... then delay is what they are paid
to do!

ANY settlement of the LINUX court challenges works against the LongHorn (aka The
Microsoft Deathstar) and it's release date.
FUD stinking up the place and the court case to drive FUD into the minds of some
decision makers (who don't know a bit from a byte)... is what Microsoft wants.


AND SUN does not want to lose any more market share... THEIR boat has so many
holes in it that they need time with a SCO FUD cloud over LINUX in order to try
to keep afloat, somehow! A settlement of the LINUX cases, in LINUX's favor
would be like a tidal wave to them and they know it.

SCO - thus has been told that they will continue to get paid money in order to
delay, delay, delay... all for the benefit of SUN and Microsoft... and since
like what the plumber say all crap flows down hill, this money ends up where, at
Canopy.

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: Anonymous on Thursday, April 08 2004 @ 12:28 AM EDT
SCO's original battle-plan seemed to have been one of
creating a major assault with their First Wave, hoping to
scare folks into buying 'fear licences'... this would have
then fueled their Second Wave... etc...

The problem is that they had totally under-estimated the
world-wide response & cohesiveness of the 'Open Source'
Movement. The use of the internet to both convey &
consolidate information has stripped away the facade
surrounding their First Wave... Now the battle has begun
on a number of simultaneous fronts... which places huge
burdens on their logisitics & finances...

With no incoming financial stream, their efforts will come
under increasing pressure...

This delay now exposes SCO fully to additional external
counter-suits, which will rip their exposed under-belly to
shreads... A silly 'battle-plan' indeed... Have they
learned nothing from the major World Wars?

Des Aubery...

[ Reply to This | # ]

SCO Asks More Time to Live in IBM Lawsuit
Authored by: bbaston on Thursday, April 08 2004 @ 12:28 AM EDT
September 15, 2005 is when they want the trial to begin, and it's all IBM's
fault for misleading the judge to freeze IBM's discovery.

SCO figures 1) judges are dumb, or
2) judges have short memories, or
3) they need a little more time to collapse?

Date filed was April 4, so maybe they had no knowledge of the RED Hat order?

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO, {;)}
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

Who has been using excuses?
Authored by: Anonymous on Thursday, April 08 2004 @ 12:28 AM EDT
Someone needs to remind SCO that they are the ones who have been using lines
like "We got busy with Christmas holidays" to excuse themselves from
having to produce documents they were *ordered* to, by court.

How many times has IBM used the dog ate my homework excuse? Zero.

Now who has been dragging their feet?

SCO are a bunch of pathological liars!

[ Reply to This | # ]

SCO Asks for delay of doomsday
Authored by: RedBarchetta on Thursday, April 08 2004 @ 12:29 AM EDT
Quote from the MacMillan article:
" The company placed blame for the delays squarely on IBM. "IBM's untimely responses to discovery have hindered orderly prosecution of the case," SCO's lawyers wrote.
Translation: us SCO attorneys know this is a doomed, hopeless case. If we desperately reach for anything, we might be able to delay this until SCO completes it's sham, and we complete our scam. Why there's at least 2 years of quality billing time left, judge!

This reminds me of a chiropractor I once saw for back pain: "Oh, that minor backache is going to need at least 3-months of daily gel rubs by my hot assistants so we can run up your bill. How else can I afford that new sea-worthy yacht? Shaah?!?!!


United States justice: Your ticket number is 230,945. Now calling 58.. calling 58,... 58 your number is up!

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: ujay on Thursday, April 08 2004 @ 12:29 AM EDT
As Gomer Pyle would say "Surprahse, surprahse, surprahse!".


---
Programmer: A biological system designed to convert coffee and cheesies into
code

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: blacklight on Thursday, April 08 2004 @ 12:52 AM EDT
"Pursuant to Federal Rule of Civil Procedure 16(b), SCO has moved to amend
the Scheduling Order to extend certain deadlines in this case. Good cause exists
to grant SCO's Motion because: (1) after the Scheduling Order was entered, IBM
filed 10 counterclaims, including several claims for patent infringement; (2)
discovery in this case was effectively stayed for four months; and (3) IBM's
untimely responses to discovery have hindered orderly prosecution of the
case."

SCOG's rescheduling motion does not contain any justification for said motion:
so the support memo will be key to justifying the rescheduling motion. Uppermost
in mind is: (1) Why is SCOG asking for the delay, when it has explicitly been
told to produce?; (2) What will SCOG do with the delay they are asking for? In
other words, in what way will SCOG advance the progress of the trial with the
delay they want?; (3) How will the Court monitor SCOG to make sure that SCOG is
actually using the delay to advance the progress of the trial rather than simply
stall for time?

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: Anonymous on Thursday, April 08 2004 @ 01:08 AM EDT
i like the part in the infoworld article where sco complains that being asked
for some evidence for their suit is slowing things down.

it's more surreal than monty python.

sum.zero

[ Reply to This | # ]

Delays, Delays
Authored by: Anonymous on Thursday, April 08 2004 @ 01:08 AM EDT
Like I've noted before, SCO has zero interest in moving the case ahead. They're
earning big bucks behind the scene to keep the impression that Linux is "in
litigation" or that there are "IP issues" attached.

Wells seems perfectly comfortable with it. She could've put a stop to it months
ago simply by enforcing her own decisions.

[ Reply to This | # ]

I"BM's untimely responses to discovery", as text
Authored by: Khym Chanur on Thursday, April 08 2004 @ 01:13 AM EDT
Part 3 of the Memorandum in Support (at least, the part of it before they start quoting laws):

Third, IBM's conduct during discovery has frustrated SCO's ability to complete discovery in the time allotted under the Scheduling Order. For example, one of the most critical discovery items in this case has been the production of IBM's AIX and Dynix/ptx source code. After first claiming artificial limitation on such production (such as IBM claiming it would only produce the "base operating system") IBM asserted that it would provide the requested code, but it need to get approval from third parties that also had their source code in IBM's products. IBM then waited months before sending out notices to the third parties. Eventually, in October 2003, IBM finally sent out notice to third parties and represented to SCO's counsel that the requested code would be provided by Thanksgiving 2003. No code was produced. Then, on the eve of the hearing on the competing motions to compel, IBM produced two CDs containing Dynix/ptx code. IBM still did note produce a single line of AIX code. As note above, at that hearing, the Court stayed discovery until March 3, 2004. The day after the stay was lifted, IBM sent AIX to SCO for the first time. In other words, one year after the suit was filed, SCO finally obtained this critical information from IBM. The requested source code of AIX and Dynix provides information that goes to the core of this case. The wholesale failure of IBM to produce a single line of AIX code until one year after the suit was files has hampered SCO's ability to conduct necessary code comparisons and delayed the orderly prosecution of this action.

IBM's incomplete answers to interrogatories have also hindered SCO's ability to prosecute this action and defend against IBM's counterclaims. For example, in Interrogatory Number 2, SCO asked IBM for the identity of all persons with knowledge concerning any of the issues in this litigation. IBM, however, identified only IBM employees and formed employees. When SCO moved to compel a more responsive answer on this interrogatory, IBM responded that it would voluntarily provide a complete answer and would not limit its response to current and former IBM employees. To date, IBM has yet to provide this complete answer -- even though SCO provided a complete response to IBM with this information on October 10, 2003.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be worm for the rest of his life.

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: blacklight on Thursday, April 08 2004 @ 01:14 AM EDT
""Pursuant to Federal Rule of Civil Procedure 16(b), SCO has moved to
amend the Scheduling Order to extend certain deadlines in this case. Good cause
exists to grant SCO's Motion because: (1) after the Scheduling Order was
entered, IBM filed 10 counterclaims, including several claims for patent
infringement; (2) discovery in this case was effectively stayed for four months;
and (3) IBM's untimely responses to discovery have hindered orderly prosecution
of the case."

I'll take the liberty to do a preliminary deconstruct SCOG's argumentation,
without looking as yet at the support memo:

(1) The delay that SCOG is asking for could probably be partially taken care of,
if the alleged patent violations are tried separately. I believe that the big
bone in SCOG's throat is IBM's request for a declaratory statement on the
copyrights, and SCOG does not like to be set up for a knockout blow. I don't see
how and why responding to IBM's counterclaims should require so much extra
time.

(2) SCOG is probably counting in the 90-day period that IBM asked for, in order
to respond to SCOG's original lawsuit. IBM as the defendant has the right to a
fair trial, and used that delay well. On the other hand, SCOG's argument that it
must have a delay for no other reason that IBM got a delay simply does not
resonate. Unless SCOG comes up with solid justification, there is no reason for
the Court to grant anything.

(3) Since I don't see any ground for that allegation of SCOG's, I'll have to
look at SCOG's support memo. At the moment, the allegation is a brazen assertion
without any supporting facts.

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: jpr on Thursday, April 08 2004 @ 01:21 AM EDT
From SCO's Memorandum in Support of its Motion to Amend the Scheduling Order -
Procedural Background:

"On August 6, 2003, approximately six weeks after the Court established a
schedule for the case, IBM responded to SCO's amended complaint (which had been
filed prior to the entry of the Scheduling Order in June 2003) ....."

When I look at Tuxrocks i see the following:

18 - Motion by Caldera Sys to amend complaint (a request by the newly minted SCO
Group for leave to file an amended complaint in "substantially the same
form" as the attached exhibit A. - dated June 16 (prior to the entry of
the scheduling order)

19 - Memorandum by Caldera Sys in support of [18] motion to amend complaint (in
support of the above - same date)

21 - Memo in Response by Intl Bus Mach Inc to [18] motion to amend complaint
(IBM does not object - subject to right to respond - July 7)

22 - Order granting [18-1] motion to amend complaint signed by Judge Dale A.
Kimball , 7/10/03

25 - SCO Amended Complaint (June 16, 2003) (actually filed on July 22)

Seems to me the Amended Complaint was actually filed a full month after the
Schedule Order was entered. Think the judge might notice this? If not, I am
sure IBM will point it out.



[ Reply to This | # ]

Patent counterclaim first?
Authored by: Anonymous on Thursday, April 08 2004 @ 01:27 AM EDT
Is it SCO's intention, by bifurcation and delay, to take the patent hit first to
present IBM to the jury of the main case as the big blue bully attacking a small
company?

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: grayhawk on Thursday, April 08 2004 @ 02:09 AM EDT
Here is hoping the judge is tired of SCO's failure to produce evidence of wrong
doing and tells them to get on with it now.

Or better still dismisses their case with prejudice for failing to make a proper
case.

If SCO really had a case and evidence of wrong doing then the case would have
gone forward many many moons ago. Normally the defendant is the one trying to
delay the case for as long as possible. Seems odd to see this shoe on the SCO's
foot when they are the ones originally bringing the charges against IBM.
Obviously their accusations are nothing but lies and heresay and they never ever
had any real evidence to support their case otherwise it would already have gone
to trial and been ruled on.

They have been asked to lay the cards on the table and show their hand.
Unfortunately they don't even have a pair of duces just a bunch of dunces
running the show.

---
All ships are safe in a harbour but that is not where they were meant to be.

[ Reply to This | # ]

More Humor
Authored by: Eric on Thursday, April 08 2004 @ 02:09 AM EDT
So the advertisement in the McMillan articale that I got was:

"Windows Server offers a savings of 11%-22% over Linux in 4 our of 5
workload scenarios. Source: IDC, North American Market"

So I clicked the "Get the facts [sic]" button, which sent me here:

http://www.microsoft.com/mscorp/facts/default.asp

This is the IDC report they link to:

http://download.microsoft.com/download/d/b/8/db8543a5-1e19-42e6-b0e3-d17ae2c2a9d
2/IDC20TCO20Paper.pdf

Among other woppers, staffing expenses are 33.5% "better". It's all
about the staffing, because obviously MS Windows is easier to administer! (they
do say that in the 5th area, web serving, Linux is 6% cheaper).

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: Anonymous Coward on Thursday, April 08 2004 @ 02:14 AM EDT
Let me see if I understand this correctly.
Because SCOg has been doing everything they can to not show any reasons that
they have right to any evidence from IBM and been trying to evade having to give
said reasons and the hon. judge Wells agreed with IBM that that is unreasonable,
IBM is holding up the case?

I need an asperin, this is giving me a headache and cracked ribs at the same
time.

[ Reply to This | # ]

OT: Native POSIT Thread Library
Authored by: DBLR on Thursday, April 08 2004 @ 02:21 AM EDT
While reading and article about about the many improvements in the 2.6 kernel it list that the Native POSIX Thread Library (NPTL) has been available from kernel 2.4 and as I recall, SCO said kernel 2.4 on is where the all the infringement started. So I was wondering where I could find more information about NPTL.
Also is it possible that SCO thinks something in or related to the NPTL Library incorporates or uses some of there bogus IP?

Thanks, Charles

---
Some Lawyers are just like bananas, they are all crooked, yellow and slimy.

[ Reply to This | # ]

Was Linus right?
Authored by: mobrien_12 on Thursday, April 08 2004 @ 02:37 AM EDT
"They are smoking crack."
-Linus

Let's see. SCO refused to comply with a court order on discovery. They blamed
IBM. The judge didn't yell at them but instead extended their deadline for
discovery by months and told IBM to comply by the same date.

And now SCO needs an extension because of IBM?

Of course, the attourneys file the complaint... Darl just offered to pay them
for another few months.

[ Reply to This | # ]

What a Joke!
Authored by: Greebo on Thursday, April 08 2004 @ 03:43 AM EDT
So this was filed on April 4th. Ah! So i know. The lawyers wrote this as an April Fools, and accidentally submitted it?!

I mean it can't be real... can it? It's a joke, surely?!

We're back to the 'We need all known universe version of AIX' again, even though i'm sure SCO have said they've dropped the ridiculous 'All Unixs belong to us' claim in light of the AT&T News letter clarifying derivative works.

And to blame the judge for their failure to provide evidence. Wow. You've got to admire the balls on these lawyers.

But i'm sure i remember Darl saying that they had all the evidence all ready? All the MIT brains, and rocket scientists (Who are presumably living with Jimmy hoffer now?) who turned up millions of lines of code.

Can you spell 'Contempt of Court', or 'Stock Manipulation' children?

It's time to put an end to this. I really hope IBM and the judge slap SCO hard for this.

Just my $0.02 worth.

Greebo.

---
-----------------------------------------
Recent Linux Convert and Scared Cat Owner

[ Reply to This | # ]

SCO Memorandum in Support -- NOT!
Authored by: szark on Thursday, April 08 2004 @ 04:28 AM EDT

From Page 4, last line of "First" reason:

The current schedule simply does afford adequate opportunity for SCO to prosecute its own claims and defend against the counterclaims asserted by IBM.

I guess they really don't want to amend the schedule. ;)

[ Reply to This | # ]

I would bet on another scox/msft win
Authored by: Anonymous on Thursday, April 08 2004 @ 07:03 AM EDT
Utah and Delaware seem to side with msft/scox. Utah complemented scox for it's
"good faith effort" to provide evidence, and gave scox *another*
delay, and ordered ibm to provide evidence to scox - insuring yet another
delay.

Delaware could not possibly have ruled more in favor in scox, and it took
Delaware over six months to do it.

Of course msft/scox will eventually lose, nobody questions that. But that's not
the plan anyway. Msft/sunw wants to delay as long as possible so msft can fud
linux, and scox can cash out on it's stock-scam.

Sadly, I predict another msft/scox victory.

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: jamesw on Thursday, April 08 2004 @ 07:20 AM EDT
And, of course, SCO can't work over Easter either...

[ Reply to This | # ]

I can see it now...
Authored by: Mike B on Thursday, April 08 2004 @ 07:30 AM EDT
"Your Honor, we HAVE to have a delay... It's all IBM's fault, how DARE
they insist that they be shown what they are accused doing, can't they just read
our press releases!?"



---
Disclaimer: Former IBM employee (I worked as a Q/A tester in their server
division, qualifying prerelease products with IBM supported Network Operating
Systems,

[ Reply to This | # ]

Defining chutzpah.
Authored by: coffee17 on Thursday, April 08 2004 @ 07:41 AM EDT
Ok, I know the shining example is a man who's accused of killing his parents asking for mercy because he's an orphan. However The SCO Group (TSG) asking for more time because of IBM's behavior during discovery seems pretty close.

They mention that IBM recently amended their complaint, but fail to not that TSG had prior amended their complaint a second time. They mention that discovery was stayed for IBM, but fail to mention the implied statement by the court that TSG was seriously failing discovery to the point of needing to be ordered to come up with it, and that not only did the court refuse to enforce TSG's motion to compell discovery, but stayed discovery for IBM.

Also, they even mention how the first day after the stay on discovery was lifted the IBM delivered to TSG what TSG claimed as the most critical discovery to it's case, the AIX code. The first day, when they could have waited the full 45 days.

The blame of the stay of discovery is fully laid on TSG's feet, yet they request more time because discovery is taking too long. While I know that it's good for the court to give TSG some benefit of the doubt so as to lot leave an avenue to appeal. However, I hope the court is quite vocal in it's eventual denile of this motion.

[ Reply to This | # ]

IBM's counterclaim and SCO's request to amend the scheduling order
Authored by: Anonymous on Thursday, April 08 2004 @ 08:07 AM EDT
The memorandum seems to assume that bifurcation of IBM's
patent claims into a separate trial will occur, and asks
that the scheduling order be amended to provide more time
for the non-patent claims. SCO complains that the new
counterclaims include IBM's request for a declaratory
judgement of non-infringement through IBM's Linux
activities, and that some or all of SCO's copyrignts in
Unix are invalid and unenforceable.

What will be the effect of the fact that SCO delayed
months in amending their complaint to include the
copyright claim, long after SCO publicly declared that
MIT scientists found millions of lines of offending code?
Isn't all that SCO would have to do to defend this
counterclaim be to find ANY infringing code in ANY version
of Linux that IBM uses in IBM's Linux activities -- if any
such code actually existed? Could someone explain how
this part of IBM's counterclaim would require months of
extra discovery on SCO's part?

The other half of IBM's counterclaim that SCO raises as an
issue is IBM's claim that some or all of SCO's purported
copyrights in Unix are invalid and unenforceable. How
would extra time for discovery from IBM possibly provide
any relevant evidence to SCO on this issue? Since SCO
raised the issue of IBM's infringement themselves,
wouldn't SCO already have the facts necessary to prove
that they own the copyrights they asserted without any
extra discovery from IBM?

[ Reply to This | # ]

SCO Asks for Another Delay in IBM Lawsuit
Authored by: rakaz on Thursday, April 08 2004 @ 09:14 AM EDT
So SCO wants more time. They claim they cannot complete discovery within the time they themselves negotiated with IBM in the first place. The reasons? SCO gives us three.

First they claim that when they negotiated the deadlines with IBM they did not know that IBM was going to file counterclaims. This is of course ridiculous. Everybody knew IBM was going to file counterclaims. Did they really thing IBM was going to put up with this and not defend themselves to the best of their ability?

Secondly they claim that because discovery was stayed for over four months they do not have enough time. While I can see that a stay in discovery can lead to problems they conveniently forget that it was their own fault that discovery was stayed. They themselves frustrated the discovery by not turning over enough. The stay was entirely up to them, if they would have cooperated sooner they would be in trouble now.

This motion is also premature because the deadline for the last order to compel discovery has not yet passed. The courts still have to decide if SCO has given enough to IBM. Once this has been established, them it would be a good opportunity to ask for more time, although the reason for their problems are still their own creation.

One other thing that Magistrate Judge Wells should ask herself is why SCO is having problems. SCO asked for truckloads of source code and IBM agreed to supply it. IBM did so right after the stay was lifted. Are they perhaps in trouble because they cannot analyse it all in time? But how can that be, didn’t they themselves say that they would have no problems with it? Even Magistrate Judge Wells jokingly suggested that SCO may have asked for more than they can handle when they asked her to force IBM into burying them with source code.

Next they blame IBM for frustrating the discovery. This really takes guts, because the Judge knows who is to blame for the delays in the discovery. It was IBM that had to file motions to compel discovery. It was SCO that lost those motions. It was SCO that failed to comply with the order to compel and it was SCO even after getting more time still failed to comply. Of course SCO also filed a motion to compel IBM, but IBM already agreed to supply SCO with the needed information at the first hearing. Had SCO acted like they should have the Magistrate Judge would not have imposed a stay and SCO would have gotten the information from IBM much quicker.

Complaining about how no AIX code was produced seems also a bit like whining to me. IBM had to ask for approval. SCO knew that. The reason why this took longer than expected was also a valid one and SCO knows it. Sending out notices does not mean that production of the source code will start immediately. When they did not get approval, that issue has to be fixed first. That takes time. SCO could have expected that. Now that it is fixed and production has started. Yes, it is more than a year after SCO filed the lawsuit, but the main reason is because their own strategy of delaying discovery in every which way possible. If discovery was not stayed I am sure IBM would have produced the source code much sooner.

What this all comes down to, to me looks like a bunch of whining little kids that are frustrated because this lawsuit isn’t going to way they want to. They ask for more than they can handle, they delay in every way they can think of and now they are in trouble.

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M$ antitrust tactics
Authored by: garbage on Thursday, April 08 2004 @ 09:27 AM EDT
These are the same tactics used to great effect in the M$
antitrust trial - do everything possible to exasperate the
judge so that they discredit him/her when he/she reacts to
all this obvious provocation.

SCOX don't want a decision!

They want the negative PR of litigation that drags on for
as long as possible. Getting the judge discredited &
starting all over again is part of the gameplan.

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SCO Asks for Another Delay in IBM Lawsuit
Authored by: Anonymous on Thursday, April 08 2004 @ 10:15 AM EDT
"Now, by going into pre-discovery, we have strong enough claims. We'd be
fine to go to court just on what we have before discovery."-- Darl McBride,
2003-06-25

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AIX/Dynix/Monterey
Authored by: Anonymous on Thursday, April 08 2004 @ 11:35 AM EDT
Question

Maybe it is obvious to all, not sure...

I don't think SCO is really looking for SYSV code in Linux. They KNOW it is not
there, or what is common code is for known historical reasons.

I think what SCO is looking for is really any work that may have been done on
Monterrey, that may have been carried over to AIX, and from there moved into
Linux. I guess this may be the basis for the contract case. Is it possible that
this is their true(unstated) argument for derivatives? Not necessarily
derivative of SYSV, but work in any way shape or form related to Monterrey SCO
thinks they may have some rights over?

And the whole copywrite stuff was the fishing excuse they need to get historical
versions of AIX to map against monterrey, NOT SYSV.

taitbb


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It could have been worse.
Authored by: Anonymous on Thursday, April 08 2004 @ 12:37 PM EDT
IBM gave SCO a few versions of Dynix and AIX and SCO asked for a delay of 6
months. Now, if we extrapolite that to all the versions of AIX and Dynix that
SCO had asked for, they will ask for a delay of 60 years to review all the IBM
code. So, 6 months, by comparision is pretty good. But then 6 months later, they
may come back and say that they need another 6 months to dot the i's and the j's
and cross the t's.

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SCO Asks for Another Delay in IBM Lawsuit
Authored by: Anonymous on Thursday, April 08 2004 @ 01:35 PM EDT

I'm wondering what happens to the lawsuit(s) if SCO delays long enough, they burn through their money, go bankrupt, and dissolve away? Could there be any ruling on the case? Could SCO, MS, Sun, Didio, etc. claim that SCO would have won if they just had more time and money but IBM won the war of attrition? I know IBM is looking for a solid resolution to the case, would this keep them from getting it? If SCO is going to lose anyway, why not deny IBM a favorable ruling, add some more FUD about how big bad IBM beat up on SCO till they ran out of money, and come away as a martyr?

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SCO Asks for Another Delay in IBM Lawsuit
Authored by: Totosplatz on Thursday, April 08 2004 @ 05:05 PM EDT

Just another doge ate my homework story!

Ludicrous!

---
All the best to one and all.

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I would think that the IBM team
Authored by: Anonymous on Thursday, April 08 2004 @ 09:19 PM EDT
is now rolling on the floor with this.

Realistically though, I would be incredibly frustrated. I think my arugment
against this would be something like:

Your Honor,

This is rediculous. They have perported to have evidence of line by line
copying for the last several months. They have repeatedly made this evidence
available to the public for viewing by signing and NDA. I have articles from
analysts who have seen this evidence.

Your Honor, they were either lying to the public in a deliberate attempt to
damage IBM and Open Source, or they are lying to you now.

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Patience
Authored by: NigelWhitley on Monday, April 12 2004 @ 07:00 PM EDT
What are the possible outcomes for this motion?

1. SCO's motion is immediately denied.
2. SCO's motion is granted.
3. The judge delays ruling on SCO's motion, say, until after discovery.

It's obvious that SCO don't want this resolved any time soon, so what will SCO
do in each case.

1. Expect to hear SCO statements that they could have produced plenty of
conclusive evidence if the wicked judge had given them a reasonable amount of
time, but now they have to go with the few infringements they have already found
in the short time the mean judge allowed them. Expect the usual sympathetic
reports of their pained bleatings. They'll still produce stuff ( see 3 below) so
that they can continue the case but will claim that they have subsequently found
much more damning evidence. Also, SCO will undoubtedly use the denial as grounds
for an appeal (assuming it doesn't win ;-) ) which means a delay in the ultimate
resolution of the case.

2. Expect to hear SCO statements that the judge recognised the merit of their
case and that they will produce bagloads of evidence at the revised discovery
date. Also expect them to say that they have already found lots of evidence.
Expect another delay just before the new date - perhaps that the dog ate their
case or even that their lawyers have injured themselves carrying around the huge
volumes of evidence.

3. Everything at 1 above although the grounds for appeal will be weaker. At
discovery expect to hear about huge numbers of infringements : these will be
roughly 200 times larger than the underlying "infringements" they
report. Why 200 times ? Because they will compare the SYSV code against EACH of
the 216 versions of AIX they have been given, plus each version of DYNIX, and
report each "match" as an infringement. It's much more compelling to
ask a judge for more time if you have found 50,000 infringements rather than
250. (Anyway, given what they've used as evidence before and their comments
about copying not being line-for-line copying, I'm expecting them to claim
vastly more than 250 "real" examples) These inflated figures will be
trumpeted in the press and subsequently SCO will say that they have since found
even more damning evidence which didn't make it to trial because of the limited
time for discovery. SCO may well get their delay in the trial schedule. The
snowstorm of "infringements" may well get SCO their delay in the trial
schedule and the case will creep towards a trial.

To summarise, this motion is a no-lose scenario for SCO (unlike a trial).
Whatever happens, they can look forward to more delays down the line - and so
can we. When it happens, we can burst into tears or we can wait calmly by the
river until our enemies float by.

And we can be thankful for people like PJ and her tireless river reports.

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