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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Sunday, July 11 2004 @ 08:25 AM EDT

Here is SCO's admission that it lacks the facts sufficient to defeat IBM's Motion for Partial Summary Judgment, their Rule 56(f) Motion in Further Opposition to IBM's Motion for Partial Summary Judgment. It is also the document that will explain all the others that have been flying around recently.

What is a Rule 56(f) motion? It is what you file when you need more time to do discovery and are staring a summary judgment motion in the face that you know you can't defeat with the evidence you have in hand.

IBM has brought a motion for partial summary judgment with respect to its counterclaim 10, and SCO can't present the necessary evidence to defeat it evidently, so they have filed this motion to try to persuade the judge that they need more time for discovery and so the judge shouldn't grant IBM's request.

What? SCO asking for a delay? You're . . . surprised? Shocked and surprised? Yes, friends, SCO is asking for yet another delay.

Here is Rule 56 of the Federal Rules of Civil Procedure:

"Rule 56.  Summary Judgment

"(a) For Claimant.

"A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.

"(b) For Defending Party.

"A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.

"(c) Motion and Proceedings Thereon.

"The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

"(d) Case Not Fully Adjudicated on Motion.

"If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

"(e) Form of Affidavits; Further Testimony; Defense Required.

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

"(f) When Affidavits are Unavailable.

"Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

"(g) Affidavits Made in Bad Faith.

"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt."

Like everything else about the legal system, there is a whole lot more to it than just the words in the books. You are asking the judge to give you more time for discovery, and you have to meet a certain standard to get your wish.

You can't, for example, have goofed around and wasted time and then succeed on the 56(f) motion. Here's part of a ruling where the judge turned down a Rule 56(f) motion for that very reason, because the plaintiff had made no attempt to obtain discovery:

"Fed R. Civ. P. 56(f) allows a party opposing a motion for summary judgment to seek deferral of a ruling pending discovery of essential facts. See Committee for the First Amendment v. Campbell , 962 F.2d 1517, 1521-22 (10th Cir. 1992). The rule is not 'invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable.' Pasternak v. Lear Petroleum Exploration, Inc. , 790 F.2d 828, 833 (10th Cir. 1986). A party requesting additional time must provide an affidavit 'identifying the probable facts that are not available,' listing the steps 'taken to obtain these facts,' and explaining 'how additional time will enable him to rebut movant's allegations of no genuine issue of fact,' Committee for the First Amendment , 962 F.2d at 1522 (quotation omitted). 'The purpose of the affidavit is to ensure that the nonmoving party is invoking the protections of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition.' Id . (quotation omitted). If the party seeking deferral has been dilatory, 'no extension will be granted.' Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1554 (10th Cir.1993)."

On the other hand, if you really haven't had a fair chance to do discovery, you should be granted more time, as the attorneys argued in this brief:

"Under Rule 56(f) of the Federal Rules of Civil Procedure, summary judgment cannot be granted where the party opposing the motion can show that he needs discovery in order to establish his defenses or to pierce the plaintiff's allegations. Rule 56 requires discovery 'where the nonmoving party has not had the opportunity to discover information that is essential to its opposition.' Metabolife Int'l v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001), quoting Anderson v. Liberty Lobby, 477 U.S. 242, 250 n.5 (1986); Vance by and through Hammons v. United States, 90 F.3d 1145, 1148-1149 (6th Cir. 1996)."

Naturally, you have to be specific in telling the judge what you expect to find and you can't ask for more time just on a hunch, or just because you vaguely think a fishing expedition might turn up something relevant somewhere, somehow:

"To oppose a summary judgment under Rule 56(f), a party must file an affidavit explaining: (1) the information sought and how it is to be obtained; (2) how a genuine issue of material fact will be raised by that information; (3) what efforts the affiant has made to obtain the information; and (4) why those efforts were unsuccessful. See, e.g., S.E.C. v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980), cert. denied, 449 U.S. 1082, 66 L. Ed. 2d 806 (1981); First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 294, 20 L. Ed. 2d 569 (1968). All the plaintiffs have alleged in their affidavit is the need to depose individuals to establish the conspiracy to discriminate and give away public property. No mention of any of the other causes of action is made. Informative is the excuse given by the plaintiffs for their failure to obtain this information -- 'I . . . have attempted t[o] obtain this information without going through the expense and time of taking depositions.' The plaintiffs cannot be allowed to sit and wait for a motion for summary judgment before taking any action towards proving their allegations. Clearly, the plaintiffs have failed to establish any cause for the granting of such a motion. See Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987) (summary judgment will not be delayed for discovery on factual issues that the movant has already negated with affirmative evidence); Paul Kadair, Inc. v. Sony Corp., 694 F.2d 1017, 1030 (5th Cir. 1983) (noting that Rule 56(f) cannot be relied upon to defeat a motion for summary judgment "where the result of a continuance to obtain further information would be wholly speculative")."

The purpose of the court is to give both sides a fair hearing, and the standard is fairly liberal in granting 56(f) motions:

"Rule 56(f) provides that if the party opposing a motion for summary judgment cannot yet submit evidence supporting its opposition, 'the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.' Fed. R. Civ. P. 56(f). The Supreme Court has restated this rule as requiring, rather than merely permitting, refusal 'where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

"Because of the requirement that the nonmoving party be permitted to conduct necessary discovery, summary judgment is often considered inappropriate early in a case. See, e.g., , 821 F.2d 461, 469 (8th Cir. 1987); Schwarzer, et al., supra, at P 14:66. In addition, federal courts take into account difficulties that the nonmoving party may have in developing the evidence he requires to defend the motion. For example, if the information needed to defend the motion is in the moving party's control, as is generally the case when a plaintiff must prove malice, 'most courts . . . are lenient in granting further time for discovery . . . .' Wright, et al., supra, at s. 2740, p.409; see also International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3rd Cir. 1990) ('Where the facts are in possession of the moving party a continuance . . . should be granted almost as a matter of course.'); Schwarzer, et al., supra, at P 1466. This tendency toward leniency is strengthened when the summary judgment motion raises latent fact issues such as motive, intent, knowledge, or credibility and the moving party has exclusive control over those facts. Wright, et al., supra, s. 2741, at p.422; cf. Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979) (noting that because malice implicates the defendant's state of mind, it 'does not readily lend itself to summary disposition'). "These rules comport with the purpose of Rule 56(f), which is 'to provide an additional safeguard against an improvident or premature grant of summary judgment.' Wright, et al., supra, at s. 2740, p.402. Therefore, the provision permitting continuances 'should be applied with a spirit of liberality.' Id."

On the other hand, here is a case where the judge said he wouldn't allow a Rule 56(f) continuance "merely on some vague hope plaintiff will turn something up that is relevant."

To understand a Rule 56(f) motion, you have to understand what summary judgments are and what they are for. Here's a page that explains civil procedure, if you'd like a structural view of the process. It says that summary judgments are the mechanism under the Federal Rules to deciding cases where no trial is necessary. It's like a fast track way to get a decision, without going through a trial. As you saw, Rule 56(c) requires that there be "no genuine issue as to any material fact" and that the movant be entitled to judgment as a matter of law. Juries weigh evidence. Summary judgment is for when there is no evidence to weigh.

In our present case, it's IBM that has brought a motion for partial summary judgment on their counterclaim 10. It's up to SCO to present facts in dispute in order to defeat their motion. They have not done so, and they can't, and this motion is their admission that they can't. (It's also conceivable that they have some facts up their sleeve but they'd rather not reveal it at this time. I pretty much rule that out, though, because I am so convinced that there is no infringing code. But I'm just presenting all the conceivabilities, so you can weigh matters and draw your own conclusion.) So now they are asking the judge for time to get their ducks in a row by doing depositions of Linus and some of his Notorious Gang of Thousands. In order to convince the judge, they have to give good reasons why they don't have the discovery materials they need. The idea behind the rule is that you don't want a premature dismissal without giving the nonmoving party a fair chance:

"56(f) protects a party opposing a motion for summary judgment if the party states reasons why he cannot present essential facts." Starks v. Commercial Union Ins. Co., 501 So. 2d 1214, 1216 (Ala. 1987). 'The rule 'should be liberally applied to allow parties an ample opportunity to marshal necessary facts to support their respective positions.'"

In order to get more time, you have to tell the judge what you still need from discovery and what steps you already took to try to get it, and if it is the other side that has been blocking you, you are more likely to get your wish for more time:

"'When a party files an affidavit under Rule 56(f) for additional discovery time, . . . [t]he trial court may deny the affiant's request for additional time, deny the motion for summary judgment, order a continuance for additional discovery or make such other order as is just.' Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1553-54 (10th Cir. 1993) (citations and quotation omitted).

"A party seeking time to conduct additional discovery under Rule 56(f) must provide an affidavit identifying what facts are not available and what steps the party has taken to obtain those facts. See Committee for the First Amend. v. Campbell , 962 F.2d 1517, 1522 (10th Cir. 1992). 'Rule 56(f) may not be invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable . . . .' Pasternak v. Lear Petroleum Exploration, Inc. , 790 F.2d 828, 833 (10th Cir. 1986). 'Furthermore, if the party filing the Rule 56(f) affidavit has been dilatory, or the information sought is irrelevant to the summary judgment motion or merely cumulative, no extension will be granted.' Jensen , 998 F.2d at 1554.

"Here, plaintiff did not file an affidavit as such. Rather, his counsel filed a motion and brief, to which he attached his affidavit stating that all factual averments contained in the motion and brief were true to the best of his knowledge. Even if construed as the required affidavit, these documents did not meet the requirements of Rule 56(f). They neither set forth the specific facts plaintiff needed to discover, nor explained how such facts would have been useful to oppose defendants' motion. See Jensen , 998 F.2d at 1554-55. Further, the record reflects that plaintiff was dilatory in pursuing discovery before filing the Rule 56(f) motion. Under the circumstances, the district court did not abuse its discretion in denying plaintiff's Rule 56(f) motion."

So all the posturing by SCO -- that IBM is dragging its feet in discovery and won't give them this and that, that SCO has been so "in good faith" in the discovery process (note SCO didn't mention the first Motion to Compel that IBM won against them, only the Second, which IBM also won but where the judge said SCO finally showed good faith, but this "good faith" showed up in February of 2004, almost a year after the case began, after a hearing where the judge told SCO pointedly that the hearing was about *their* compliance, not IBM's), the long list of people they just have to depose (which they could have done for some time now but haven't bothered), etc. -- it's all about fitting into a 56(f) motion and meeting the requirements, or blowing enough hot air that it looks like you've met them..

Now that you get it, and you have read the Red Hat letter to the judge in Delaware saying that SCO says whatever it thinks will help it to win, you probably get why my first reaction was to throw up. Those of us watching this story unfold in detail, day after day, have no doubt which party has been delaying.

So, what can the judge do about their motion? He can grant them more time, he can decide they don't deserve more time and grant IBM's summary judgment request, he can fashion some resolution himself, whatever he wants, up to a point. The Rule says a judge "may" do such and such, but you can abuse that discretion if you pick a resolution that makes no sense. Here is a case where there was an appeal, and the judge thought the lower court had abused its discretion:

"Although Rule 56(f) does state that "the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just, under the facts of this case, we hold that it was an abuse of discretion for the trial court to enter a partial summary judgment for the Bank and a summary judgment for Kelly, and we reverse those judgments and remand the case for further proceedings."

So what do we learn from that? That whatever the judge decides, it's appealable. Sigh.

So, once again the bottom line is, SCO wants another delay. The problem they face is that they have sought so many delays and have dragged their feet so much, it could come back to haunt them now in this 56(f) Motion. Remember the Santa ate my discovery excuse? The evidence they couldn't gather because of Christmas after they had agreed 30 days was enough in open court on December 5, with the obvious knowledge that Christmas tends to happen every year and was about to occur once again?

"THE COURT: All right. Does that give you sufficient time? I am holding you to the 30 days, but if we get this order signed by Wednesday of next week, let's make it even the fourth week of January, which is after the 19th. Why don't we do it Friday, then, the 23rd at 10 o'clock, again, and then we will address the remaining motions of SCO, all right.

"MR. MCBRIDE: So Your Honor is not ruling on our motions at this point in time; is that correct?

"THE COURT: No. I'm not ruling on your motions, and that is inherent in my order that further discovery be postponed.

"MR. MCBRIDE: Very good, Your Honor.

"THE COURT: We'll address them then.

"MR. MCBRIDE: So and we'll, in this next -- the January hearing then we will address the -- our pending motions as well?

"THE COURT: Yes.

"MR. MCBRIDE: Thank you, Your Honor."

But when the deadline arrived, they said they needed three more months, remember? Remember Hatch acknowledging their posturing he categorized as just good lawyering in the last hearing?

"HATCH: In addition to that matter, there's been, you know, as always at the beginning of the case, the complexity, when we're dealing with good attorneys and aggressive attorneys, there's been a considerable amount of jockeying that has affected the schedule. And part of that resulted in Judge Wells at one point staying discovery for a period of three months. And then at the end of that three months, giving one party 45 days to respond to some of the discovery the motion compel [sic] at the beginning of that. So that took about four and half months out of it, as well."

The whole discovery process was shut down for months by judge's order, on IBM's side, until SCO put up or shut up and complied with IBM's discovery requests first. Do judge's relieve one side from having to comply with discovery until the other side complies if the other side has been good? I don't think so. SCO for months had told the court they couldn't comply until IBM *first* turned over all the AIX and Dynix code from the history of the world, which the judge refused to order IBM to do. So, SCO wasn't chosen to go first on a roll of the dice. They were told to go first because IBM had argued that SCO, as the plaintiff, had the burden to tell them what they were accused of doing wrong with specificity, so IBM could defend itself. SCO is now telling it that it was just somebody had to go first, and they got chosen at random. It wasn't like that at all. For that matter, SCO is still asking for the same thing. They want IBM to prove their case for them. They have consistently pushed for IBM to have to go first, and there was a lot of time lost over that. Now we know why they wanted IBM to go first -- they are fishing for some evidence of their wild allegations.

That was their decision and their strategy. The problem is, if you delay yourself, you can't successfully bring a 56(f) Motion. Now, they must pretend none of that delay from their posturing ever happened, and it's all IBM's fault. What, though, is the reason they haven't deposed Linus already if that is so vital? IBM filed their 10th Counterclaim back in March. It's now July. Is that not four months of inaction, if we count time like SCO, or 3 1/2 otherwise? What excuse for that inaction can there be? Is he hard to find? The poor man lives in the public eye. It all depends on how well the judge grasps SCO's techniques. If it's still too early for him to get the big picture, they may get a continuance. But don't forget. Judge Kimball, when partially granting their request for more time on the Scheduling Order, told them they'd get no more delays. So he isn't totally clueless.

But the US legal system was fundamentally designed to be fair. It's not supposed to ever be "Off with their heads" without a mighty good reason and a fair chance to prove your side. Cynics can abuse that system, no doubt about it. Sometimes they do. But that reflects more on them than on the system. Cynics figure out mean ways to hustle money from simple down-home tourists' from the mid-West when they visit New York City, too. That doesn't tell me that there is anything wrong with being open-hearted, sincere, and too nice to quickly see the cynical thieves for what they are in time to save your money. It'd be a sad world where we all view everyone as a snake, just in case. What else do hustlers do but take advantage of niceness?

So, bottom line: they might get more time, but if they do, it merely postpones the inevitable. They can subpoena the Pope if they want and every Linux user on the face of the earth and they still won't find any infringing code in Linux. They keep thinking that if they just get more time, more code, more depositions, they'll find something. Or they pretend that is what they are thinking. Give it up, SCO. You gambled and lost.

Oh, and earth to SCO: Linus was never a student of Andrew Tanenbaum's. They weren't even in the same country. You need to stop believing the nonsense you get from AdTI and garbage you read in the media. Don't get me started on "think" tanks. And as for "analysts", Microsoft's Steve Ballmer just admitted openly that they use them to get their message out. How does it feel, Yankee Group, to be outed? I'm sure everyone will *really* take seriously every word falling from the lovely lips of Ms. DiDio now.

Back to SCO, it's making your lawyers look stupid, to the max, when they swear in declarations and put in your filings that Linus was a student of Tanenbaum's, cross their hearts and hope to die.

You, more than most, ought to know that reporters print a lot of nonsense, just because it lands on their desk in the form of a press release and they don't have time to really fact check. Ask Darl to show you his phone-book sized clippings notebooks, the ones he showed off at SCOForum last summer, about the million lines of code he had in hand and how they didn't need to do one bit of discovery because they already had truckloads of infringing code, line by line copying -- even the comments were identical, remember? -- code his MIT deep-diving sleuths had found, etc. Headline after headline. And none of it, if SCO's current story is believed, turns out to be true. Unless SCO's 56(f) Motion is fibbing and they don't really need more time to try to find infringing code? Just wait until we get to the tort counterclaims part of this trial. SCO is in so much trouble. And just think of all those people who bought the stock believing those headlines. My, oh my, oh my.

The trouble with fibbing is, after a while nobody believes you any more. I wonder how all those reporters feel, now that SCO has told the Utah court that their lawsuit against IBM isn't one bit about IBM putting Unix code into Linux: "SCO has not alleged any copyright violation based on IBM's contributions to Linux, and has brought only a single, limited copyright claim against IBM that is expressly based on IBM's use and distribution of AIX and Dynix after the termination of its licenses."

Now you tell us. Do you suppose the reporters feel like a hustled tourist in Times Square, reaching for his wallet to pay for a hot dog and finding the wallet gone and suddenly remembering and connecting the dots about that guy that bumped into him, apologized profusely and then disappeared into the crowd? They ought to be writing about this, and maybe after the shock wears off, they will. Some of them. The ones who aren't busy getting Microsoft's message out. I gather SCO contacted journalists about their current legal flurry. But the headlines were mighty few and far between this time, and none of the articles I saw spun it the way SCO would have liked.

Even a decent, friendly tourist from South Dakota can't be hustled twice.


  


SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment | 292 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Scriptwriter on Sunday, July 11 2004 @ 09:14 AM EDT
to make it easy for PJ to find 'em.

---
You can't always get what you want, but if you try sometimes, you just might
find you get what you need.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

Off Topic Discussions and URLs here please
Authored by: Scriptwriter on Sunday, July 11 2004 @ 09:16 AM EDT
since it's traditional to keep them off here in a corner by themselves.

---
You can't always get what you want, but if you try sometimes, you just might
find you get what you need.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

Trolls, Irrelevancies, Fripperies and Bad Ichthyological Puns Here Please
Authored by: Scriptwriter on Sunday, July 11 2004 @ 09:17 AM EDT
because it's more e-fish-ent.

---
You can't always get what you want, but if you try sometimes, you just might
find you get what you need.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

This is getting ridiculous!
Authored by: Anonymous on Sunday, July 11 2004 @ 09:23 AM EDT
I don't get it. Why don't the lawers on behalf of IBM just up and complain to
the judges about their perceptions of what SCO are doing?

Would it be unlawful for them to just put together a summary of Groklaws factual
findings and send it in as a deposition?

I live in another country to yours, however, I thought, even in the USA, you
could tell the truth, the WHOLE truth, in court.

Regards, Robert

..... I opened my mouth and proved them right.

[ Reply to This | # ]

SCO's purpose
Authored by: Anonymous on Sunday, July 11 2004 @ 09:23 AM EDT
PJ, I think you overvalue the 'fishing factor'. SCO and M$ already won
something, and it is not time, but FUD.
This whole circus is about FUD and not about SCO getting money or time. SCO
(McBride and Co) ALREADY got the money. They may need some time to secure this
money, but the main reason for these delays is to ruin Linux and FOSS in
general. I guess screwing IBM is also good for M$, at least it provides a
convenient smokescreen so people don't look at M$'s court cases and covert
actions.

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: Anonymous on Sunday, July 11 2004 @ 09:25 AM EDT
Mmm... smackdown time approacheth... I'll get the popcorn.

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: brenda banks on Sunday, July 11 2004 @ 09:33 AM EDT
and dont forget the tireless endorle
he says he *saw* the line by line copied code.
shareholders if you need help researching for material on who said what and
helped lead you down the *path* groklaw has extensive quotes and news articles
hehehehehe
yes tort claims will be soooooooo much fun


---
br3n

irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"

[ Reply to This | # ]

Delay won't really help them
Authored by: freeio on Sunday, July 11 2004 @ 09:34 AM EDT
I read your article this morning on my Genuine IBM ThinkPad, running Genuine Novell/SuSE Linux, and my reaction is not to worry about their delay.  Yes, SCO is apparently abusing process any way they can to get more delay, but they are indeed making such a spectacle of themselves that even the dullard press is noticing that they have been taken for fools. 

By now the dots are being connected, and yes, those who are watching are pretty sure who is behind this entire charade.  Has it delayed the adoption of Linux and other free software?  Oh perhaps a little bit, but it has also opened the eyes of many to the fact that free software is such a threat to Microsoft that they will do anything to wipe it out.  That realization has made many people give free software a second look, simply because if it is such a threat to Microsoft, it just might be really good software. And it is!

Cheers!

Marty

---
Tux et bona et fortuna est.

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: xtifr on Sunday, July 11 2004 @ 09:42 AM EDT
Don't have much confidence in their own Motion to Dismiss or Stay, or their
memorandum in opposition to IBM's Motion for Summary Judgement, do they? Maybe
they actually do realize that IBM's Lantham Act claims and Darl's big mouth mean
that the issue of copyrights has been relevant all along?

I hope IBM absolutely hammers them over the ridiculous claims to need more
AIX/Dynix discovery, when IBM freely admits exactly what AIX/Dynix code is in
Linux.

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.

[ Reply to This | # ]

It's this an admission...
Authored by: Anonymous on Sunday, July 11 2004 @ 09:50 AM EDT
Isn't this an admission that SCO purjured itself?

As IBM pointed out in it's movement, SCO submitted signed declarations that they
have complied with the discovery compulsions... one of which is identifying
*all* code to which SCO claims rights.

If they're now claiming that they have evidience to show that IBM is infringing
their copyright, then they quite obviously purjured themselves when they said
they have supplied all evidence.

How can the judge come to any other conclusion?

[ Reply to This | # ]

The Big Picture
Authored by: a_dreamer on Sunday, July 11 2004 @ 09:57 AM EDT
"A certain amount of opposition is good for a man. Kites fly againsyt, not
with, the wind" John Neal

One can accurately assume that this whole line of attack was started as FUD.
However, let's look at the consequences.

1. Linux presence in the news has gone through the roof.
2. People formerly stuck with M$ now know (indirectly through M$' own efforts)
that they have an alternative.
3. Because Linux is a voluntary community it has nowhere near enough resources
for the publicity it has been receiving for free from this whole FUD effort.
4. Linux use is exploding.

Darl, in his own screwed up way, is responsible for one of the most amazing IT
revolutions in the history of the computer. He's the General Santa Ana who
attacked the Alamo, only to see his efforts surge into a rallying cry so great
that it destroyed him.

Thank you, Darl. Thank you General Santa Ana.

'Just some thoughts . . .

Craig

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: oldgreybeard on Sunday, July 11 2004 @ 10:21 AM EDT
"SCO has not alleged any copyright violation based on IBM's contributions
to Linux, and has brought only a single, limited copyright claim against IBM
that is expressly based on IBM's use and distribution of AIX and Dynix after the
termination of its licenses."

My, my, now IBM can claim that SCO improperly terminated a license it had no
right to terminate.

That sure would be overly ripe carp, open that package carefully.

[ Reply to This | # ]

Downhome Midwestern Tourists? NOT!
Authored by: Anonymous on Sunday, July 11 2004 @ 10:38 AM EDT


I'm from Iowa. Deeply rural Iowa - one parent born in a
clapboard sided log cabin, fifteen miles from my house to
the nearest stop light. When I go to New York no one
hustles me, I love Times Square at all hours of the day
and night, and I've had half a dozen people who sound like
natives ask me for directions to stuff in lower Manhattan.

I must look kindly :-)

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: bbaston on Sunday, July 11 2004 @ 10:53 AM EDT
PJ,

If another delay enhances odds of failure on appeal, I say give them the delay.
FUD from M$ cronies digs holes for Windows to fall in, and elevates GNU/Linux,
at least here in south Arkansas.

Whenever SCO twists, give them a little more slack in the rope. Didio (who still
promotes M$' FUD lines) is just part of the priceless promotion of Linux, as you
and your Groklaw have overwhelmed the FUDsters several months ago. (Lack of)
coverage of SCO releases on these legal filings shows M$/SCO has lost the FUD
battle.

When it fits, let us know a little more about the appeals process, and how that
may play.

Thanks,

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

SCO's Opposition to IBM's PSJ Motion
Authored by: the_flatlander on Sunday, July 11 2004 @ 10:56 AM EDT
IANAL, and therefore I am not sure of the process here...

Do the Nazgul get to eat, I mean, *respond* to this memo specifically? I should
think they won't have too much trouble pointing the Judge to relevant points in
the record that might tend to influence his view of the SCOundrels' pleading.

I confess, I'm a little confused as to exactly whose motion is being moved on,
and therefore who gets the last word.

It does seem to me that the SCOundrels are trying very hard, even in this one
court case, to have things both ways. If the case isn't about copyrights then
there's no problem, conceed the point: IBM isn't infringing. If it is about
copyright then explain why you need to see work "A" or "D",
in order to prove that work "L" infringes on work "U".

The Flatlander

How to tell you need to cut down on the quantity of crack you've been smoking:
You wake up one day and think filing a law suit against IBM is a *good* idea.

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: QTlurker on Sunday, July 11 2004 @ 10:58 AM EDT
OK, So SCO has tossed a lot of flak in the air about the PSJ on counter claim
10. Now IBM gets to reply with a round of memos. Then SCO gets to leisurely
submit a round of responses to the IBM reply memos. Then a hearing. Then the
judge has to read and digest all the BS.

Can anyone speculate on a time table for the PSJ to come to a conclusion or
continuance?

[ Reply to This | # ]

IBM took care of their arguments
Authored by: GLJason on Sunday, July 11 2004 @ 11:09 AM EDT
SCO's opposition to the argument is based on their need for more discovery. As
IBM has pointed out time and time again, SCOX has had all the evidence it needed
since before the trial began in 2003, the source code for Unix and the source
code for Linux. They have made public claims that there are "mountains of code"
copied from Unix to Linux. If they have made those claims without evidence, and
sworn they have obeyed two court orders to produce that same evidence, and there
is no evidence, then this issue is ripe for summary judgement. No amount of
discovery will give them any more evidence than they have had since the
beginning of the trial.

[ Reply to This | # ]

Someone please explain somethig to me
Authored by: Jude on Sunday, July 11 2004 @ 11:13 AM EDT
WRT IBM's Lanham Act claims, can SCO get away with justifying their past
statements on the basis of new evidence, or do they have to show they had
knowledge to support those statements at the time they were made?

SCO is whining that they need more time to find evidence of infringment in
Linux, but they were shouting "infringement" in the press over a year
ago. Since SCO has admitted that they have no evidence of infringement now,
haven't they pretty much guaranteed that IBM can win summary judgement on the
Lanham act claims? If SCO does find evidence of infringment sometime in the
future, would this vindicate their past statements, or would they still be
considered to have lied at the time the statements were made?

[ Reply to This | # ]

PJ, you just made my day
Authored by: inode_buddha on Sunday, July 11 2004 @ 11:41 AM EDT
Thank you. For years I thought I was the only one who felt this way.

"Cynics figure out mean ways to hustle money from simple down-home tourists' from the mid-West when they visit New York City, too. That doesn't tell me that there is anything wrong with being open-hearted, sincere, and too nice to quickly see the cynical thieves for what they are in time to save your money. It'd be a sad world where we all view everyone as a snake, just in case."

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

[ Reply to This | # ]

Kimball said....
Authored by: Latesigner on Sunday, July 11 2004 @ 11:48 AM EDT
that SCO would get no more delays.
Let's see if he keeps his word.

[ Reply to This | # ]

Bright line??
Authored by: darkonc on Sunday, July 11 2004 @ 12:09 PM EDT
I'm guessing that IBM could argue that SCO's disclosures have failed to prove
that they had even enough evidence to file their suit to begin with, and -- if
they haven't shown enough proof to justify filing suit, then they don't have any
right to further delay.

Yes?

Has SCO failed to provide that minimal level of proof, or did I miss something?

---
Powerful, committed communication. Touching the jewel within each person and
bringing it to life..

[ Reply to This | # ]

The Big Picture II: SCO's Rule 56(f) Motion blah blah blah
Authored by: Anonymous on Sunday, July 11 2004 @ 12:14 PM EDT
One of the primary reasons that none of this has worked for TSCOG is that Groklaw brought what was formerly a secretive world of legal game-playing kicking and screaming into the harsh light of day.

"The whole world is watching, the whole world is watching..."

The entire world+dog has been watching TSCOG make an utter fool of itself.

However, the very first sentence of TSCOG's Motion now makes me wonder just how much potential damage the entire system of American jurisprudence also risks suffering.

TSCOG is essentially saying:

    "Several years into this, we haven't looked at the Linux source code, we haven't looked at Unix source code, we don't know about Unix licensing, we don't know nothin' substantive about anything behind all this, even though we started all this well over a year ago. We'll now need even more time, even though we've been the major problem in keeping this entire charade moving along".

At what point does the American system of jurisprudence:

  1. get a backbone,
  2. put aside the procedures of "evenhandedness" and "fair play" that are so clearly being abused by TSCOG,
  3. and simply say "OK, you clowns, enough is enough. Put up or shut up. Now."

The entire world is watching American jurisprudence at work as well, and if this ploy succeeds it looks very much like the American court system is just as much a part of the problem as "Lawyers-Without-Morals".

IMHO, of course...

t_t_b

---
Release the missing Exhibits!

[ Reply to This | # ]

In Deferrence to "Off With Their Head"...
Authored by: tredman on Sunday, July 11 2004 @ 12:34 PM EDT
If imitation is the sincerest form of flattery, Lewis Carroll would love this.
This is SO Alice in Wonderland.

"SCO has not alleged any copyright violation based on IBM's contributions
to Linux, and has brought only a single, limited copyright claim against IBM
that is expressly based on IBM's use and distribution of AIX and Dynix after the
termination of its licenses."

Then explain to me, now, exactly why do you need to see AIX and Dynix source
code?

"IBM filed their 10th Counterclaim back in March. It's now July. Is that
not four months of inaction, if we count time like SCO, or 3 1/2
otherwise?"

That's not entirely correct. If we count time like SCO, we don't round up. We
just round to the most convenient whole number, which in there case would mean
only 3 months of delays. I'm sure a few more excuses could be thrown in there
to knock that number down another month or so, but wouldn't it be sweet to see
them argue that after they had told the judge how they needed all that extra
time.

However, many assessments that "the end is nigh" for SCO I believe are
premature. Even if they lose their claim for 56(f) relief, there are still many
other arguments on the table. Regardless of whether or not the judge rules that
IBM's Linux activities are infringing, SCO will still try to spin their
cock-eyed theories in the press.

Now that they know the press and public are starting to pay attention to the
trial itself, they're going to continue to do what they've started as of late:
they're going to write their motions and pleadings as much for the public as for
the court. That's the only reason I can think of that they would say the things
that they do, because the judge certainly can't be buying it.

Tim

[ Reply to This | # ]

SCOX Is Currently Claiming To Have Evidence...
Authored by: Hyrion on Sunday, July 11 2004 @ 12:51 PM EDT

I'm sure someone else has thought of this but here it is as I hadn't seen it posted yet. If SCOX is currently claiming to have evidence, how can they ask for a ruling on 56f when simply showing a little evidence will stop the summary judgement?

In SCOXs recent letter to the Judge in the Red Hat case, they claim:

...we found out somebody other than IBM violated our copyrights with respect to Linux...
Now, my understanding of copyright law is:
  1. If copyright is being infringed, any who distribute said copyrighted work infringe.
  2. IBM, in their own court documents, admit to distributing Linux. They do so in co-ordination with hardware, but distribution is still at work.
Now we get to the good part:
  1. From my reading of SCOXs recent letter for the Red Hat case, they are claiming to have evidence of copyright infringement in Linux. Period. They then go on about IBM is not the direct infringer yadda yadda yadda.
  2. IBM distributes Linux. Period.
  3. If IBM distributes Linux and Linux has SCOX copyrighted code in it, then IBM is therefore infringing SCOX copyrights. Period.
Of course, IANAL so I could be wrong on the above. But it seems to me IBM should point out to Judge Kimball that SCOX has stated in a court document to have evidence in response to SCOXs request for Rule 56(f).

---
There are many kinds of dreams. All can be reached if a person chooses. - RS

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: Anonymous on Sunday, July 11 2004 @ 01:29 PM EDT
And as for "analysts", Microsoft's Steve Ballmer just admitted openly that they use them to get their message out. How does it feel, Yankee Group, to be outed? I'm sure everyone will *really* take seriously every word falling from the lovely lips of Ms. DiDio now.
I'm sorry, but there's no smoking gun here. What Ballmer "admitted openly" in that memo is that when a group publishes results favorable to Microsoft, Microsoft tells people what those groups said. What he did not admit is that Microsoft funds these studies and makes clear the expectation that, since the funding is from Microsoft, the results will be favorable to Microsoft. He's still calling them "independent analysts".

Personally of course I call that bunkum but the point is, there's no smoking gun here. Whether or not he is telling the truth, what is claiming is exactly what we would do, and what we do. If some research group looked into the TCO of Linux vs. Windows and concluded "Linux is much better value", wouldn't we use that to publicize Linux?

The difference is that we are not funding groups and still calling them "independent".

[ Reply to This | # ]

OT: Microsoft Worker Charged with Taking AltaVista Data
Authored by: belzecue on Sunday, July 11 2004 @ 01:32 PM EDT
A Microsoft Corp. MSFT.O employee working on the world's largest software maker's search initiative was arrested last week on charges that he stole source code from the AltaVista search engine two years ago, authorities said on Friday...

-----

Did he put stolen code into the developing Windows next-gen search code? Only those at Redmond with source-code access know for sure. Another thing for sure is that nobody would be dumb enough to try slipping stolen Altavista code into an opensource product...

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: tknarr on Sunday, July 11 2004 @ 01:36 PM EDT

I think this is where IBM lowers the boom on SCO. As I read it, 56(f) only applies if the non-moving party doesn't have what they need to defeat the PSJ motion presently and needs more time. If they do have evidence of a fact in dispute, which is enough to automatically defeat a PSJ motion, then they can't claim 56(f). Well, in the fifth paragraph of SCO's July 17 letter to the judge in the RedHat case, SCO plainly says that they've already identified specific lines of infringing code in Linux. That'd be sufficient to defeat the PSJ motion and it's SCO's own admission that they have it, so I don't see an appeals court overturning Judge Kimball if he denies SCO's request for more time under 56(f) based on that.

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: Anonymous on Sunday, July 11 2004 @ 02:56 PM EDT
SCO has already said in court, at least twice, that no
System V code is in Linux. If, by SCO's own insistence,
Linux has no System V code, then IBM's code, by SCO's own
logic, cannot be a derivitive of System V (as SCO has been
claiming to the Press). If IBM's code was a derivitive of
System V, and IBM contributed that code to Linux, then IBM
would be contributing System V code to Linux. Therefore,
there would be System V code is Linux.

SCO claimed to terminate IBM's license to distribute AIX
on the grounds that IBM was including System V derived
code into Linux (System V is the only code to which SCO
claims a copyright).

Since SCO says there is no System V code in Linux, that
means that IBM was not improperly contributing such code
to Linux. Since IBM was not improperly contributing code
to Linux, SCO did not have grounds to terminate IBM's
license, even if we accept the fallacy that SCO has 100%
ownership of System V code.

Since SCO did not have grounds to terminate IBM's license,
which was irrevocable under any terms anyway, SCO is in
material breach of the IBM business contracts it bought
from Novell.

So by SCO's own admissions in court:

1) IBM could not have improperly contributed System V code
to Linux.
2) SCO is in material breach of contract with regards to
IBM's AIX license.

[ Reply to This | # ]

Quote from Darl "Bud-Light" McBride
Authored by: RedBarchetta on Sunday, July 11 2004 @ 03:00 PM EDT
From this CRN interview with McBride:
"McBride also responded to public criticism about the delay sought by SCO. He said the delay was necessitated by IBM's legal machinations, not those of SCO. "The reality is a long delay was put in place by IBM. ... IBM filed 14 counterclaims [against SCO]," McBride said. "But mark my words: There will be a day that will come when we see documents that will contradict IBM's current posturing."
That's right... keep posturing and blaming it on IBM. Even though court documents reflect otherwise, just keep lying. Trial lawyers love extracting money from fraudulent companies on behalf of investors via class action.

P.S. Although this article is dated today, it seems a few weeks old. Either way, I don't recall reading these comments from McBride.

---
Collaborative efforts synergise.

[ Reply to This | # ]

Concentrated molecular acid for blood
Authored by: Anonymous on Sunday, July 11 2004 @ 03:12 PM EDT
All right, that's it. This sham is over. Let's quit kidding around. It's
unreasonable to accept that SCO believes that they have any chance of prevailing
on any aspect of this case except *possibly* minor contractual non-competes.
The copyright claim is over. It's done. It's beyond farcical now.

And that means that SCO is done. Even if we believe their accounts, then by
their own admission *if* their UNIX business doesn't tank (want to bet on it?)
then they've got one year of funds left and no possible chance of getting more
unless Microsoft pull aside the curtain and bail (or buy...) them out.

So why carry on? To what possible purpose?

To take as many people as possible with them, before they go into Chapter 11
*pause for breath* 7, sell the 'IP' assets to Sun or another Microsoft catspaw,
and the execs golden parachute their way to safety at other predatory companies
run by their coterie of worthless buddies. The only possible reason to continue
this case (and the other cases) is to do damage, plain and simple.

Concentrated molecular acid for blood.

[ Reply to This | # ]

tone down the anger
Authored by: Anonymous on Sunday, July 11 2004 @ 03:48 PM EDT
I understand that you're angry at SCO and they've been really naughty the past
year. However, not all of your readers are equally as angry, nor do they
understand everything about the SCO case. So if your purpose is communication,
and I hope it is, then I would recommend toning down the anger level of the
stories. I've noticed it gradually rising over the past couple weeks, and I
fear that it my cause your research to lose credibility.

[ Reply to This | # ]

Looking for some data ..
Authored by: Anonymous on Sunday, July 11 2004 @ 04:45 PM EDT
This is a bit OT, but what are the known resources for information about the
legal history of Microsoft? I am particularly interested in chrages brought
against MS for copyright or patent violations of other peoples interests.

Thanks for your help. This seems to be a bunch of folks likely to be
knowledgable about the question.

[ Reply to This | # ]

Reasonable efforts at discovery so far?
Authored by: Anonymous on Sunday, July 11 2004 @ 04:55 PM EDT
It appears that SCO is not so much asking for additional time in order to obtain
new essential discovery evidence, but rather is arguing that they need more time
because they have elected specific methods of investigation which are more time
consuming than others which were already available to them.

They say they have had insufficient time to analyze the "millions of lines
of Linux source code, to compare it to Unix source code, and to trace the
genealogy, ownership, registration, and licensing of that code". But these
were all things that could have been done at any time, without any further
discovery. SCO has had full access to Unix source code for years, while Linux
source code from over a decade of development is a matter of public record.
Considering that SCO has been publicly proclaiming that copyright problems exist
in Linux with respect to SCO for over a year, it seems illogical to believe that
no analysis was undertaken in all that time to verify the truth of those
charges.

The rest of SCO's argument for the need to be granted more time seems to be
based on an admission that they haven't even begun discovery efforts with the
strategy they've chosen. They say they need to "efficiently identify
targets for future, focused discovery and efficient investigation of
facts". They also state a need to "build and prioritize its
investigation of non-literal copying into Linux". So their entire discovery
effort in the three and a half months since counterclaim 10 was filed seems to
have been contemplating what the most "efficient" strategy would be.
They haven't actually done anything.

It also seems strange that, since SCO believes deposing dozens (if not hundreds)
of IBM developers who previously worked on Linux is the most efficient method of
discovering where copying occurred, non-literal or otherwise, they have not made
any efforts to depose anyone. They have in fact attempted to delay all
depositions for as long as possible. Why would they seek to delay the one avenue
of investigation which they say is so essential to defending themselves against
IBM's counterclaim?

[ Reply to This | # ]

Back to Didio Didn't I Do...
Authored by: kawabago on Sunday, July 11 2004 @ 04:59 PM EDT
Didn't Laura Didio claim to have seen plenty of direct
line for line copying? If she saw examples of copied code
as she claims, why can't SCO produce it in court? There
are two possible answers to this. 1. She lied about
seeing the code. or 2. She hallucinated seeing the code.
If she hallucinated, was it a psychotic break or is she
taking party drugs? These are the questions that really
matter, is Laura Didio, Senior Microsoft Mouthpiece(SMM),
a liar, crazy or a drug addict? It must be one of the
three.

[ Reply to This | # ]

Walking the AutoZone Tightrope
Authored by: overshoot on Sunday, July 11 2004 @ 05:01 PM EDT
SCO has to be careful with the IBM hearing on counterclaim 10 (AUG 4th) to avoid
admitting that they filed against AutoZone with no evidence, and they hope to
find the evidence in further discovery from IBM. AZ's lawyers would have all
they need for an instant dismissal and all costs.

[ Reply to This | # ]

IBM's response
Authored by: Anonymous on Sunday, July 11 2004 @ 05:08 PM EDT
I image that everyone in IBM's legal office, partners, associates, paralegals,
even the cleaning crew are crawling all over each other wanting to get a shot at
writing the memorandum in response. What will they argue?

1. SCO has had all the time in the world to compare it's Unix and Linux (OK,
this one is too easy).

2. What discovery? For over a year, SCO has had all the evidence it needs [cite
tons of press clippings]. (OK, this is also too easy.)

3. Why experts? SCO did such a great job "showing the code" under
NDA's to nonexperts like Mr. Rob and Ms. Laura and convincing them of its case
that no experts are needed. Just show us the code (and the jokes) that you
showed them.

4. We present a BIG target. Just show one solid case of infringement - that's
all it takes. SCO doesn't have to show each and every instance.

5. Regarding any ambiguity in the Sequent license agreement, (about whether SCO
might actually own the copyrights to Dynix), SCO knows full well that if one
went down that path, the answer would be unequivocally no, so raising the issue
now is strictly a gambit to force delay.

My guess is that the motion for PSJ will still get shot down (or at least
delayed) because there are too many loopholes for SCO to wriggle through, but
possibly IBM will get an implicit admission that all of SCO's past rantings were
hot air.

[ Reply to This | # ]

I bet scox wins - again
Authored by: Anonymous on Sunday, July 11 2004 @ 05:09 PM EDT
Scox always wins. Scox always gets about half of what scox asks for. It's been
like that since December.

I'm sorry, but the court is heavily biased in favor of scox. Does scox have the
evidence scox should have had before scox even filed the lawsuit? Why won't the
court ask that of scox?

As I understand it, you are supposed to have the evidence *before* you file
(certainly scox claimed to have such evidence). You're not supposed to go on one
fishing expedition after another *after* you file. Yet the court continues to
indulge scox time after time after time.

I'm surprised that groklaw posters still ignor this bias.

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: NastyGuns on Sunday, July 11 2004 @ 05:28 PM EDT

Reading all of this today; while totally laughable, reminds me of the sad fact that the good Judges Kimball and Wells will have to read through all of this tripe and try to keep things in perspective, while being as unbiased as possible. Personally, I'd have already hit SCO with injuctions and penalty's for their actions, but I'm not the judge.

There are some very good comments/thoughts above concerning the various SCOG claims. However, there were some sealed documents filed in relation to the PSJ and Rule 56(f) motion. Some exhibits and two declarations, but from whom I'm not sure. I hope that IBM challenges the protective order surrounding these documents. I'm interested in seeing who they are from and just what they say. [These are documents 197 and 198 according to Tuxrocks.]

I mention the sealed documents because there is no telling what kind of information is in them. And while I believe that SCOG has never had a case, I'd still like the entertainment of reading what kind of drival they're spewing in those documents. Let alone the fact that I don't like counting my chickens before they're hatched.

Looking at the number of motions and exhibits filed, and the quality of the available arguements so far, I'd say that the two sealed declarations contain more of the same trash. It also seems SCOG is trying to swamp the judges with a mound of documents to go along with its' overbloated claims. As I said at first, it's a shame that the good judges will have to read through all this trash just to ensure that they've covered all their bases for whatever is to come.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

Discovery provided only when ordered?
Authored by: Anonymous on Sunday, July 11 2004 @ 05:33 PM EDT
In it's letter to the RedHat case judge, SCO claims they were not being
inconsistent with their representations to various courts in part because
individual declarations were true at the time they were made. They also state
that since those declarations were made, additional evidence has been developed.
If this is true, isn't SCO required to provide all such new evidence that falls
within the scope of existing discovery requests from IBM? Is there some
requirement for timely disclosure of discoverable material once it has been
found?

Surely SCO cannot certify they do not possess evidence in one month, and then
not turn over other evidence they uncover later that falls under the same
discovery order simply because of the previously made certification? It seems
only logical that if the circumstances behind a certification on the existence
of evidence changes, that the existing requirements for disclosure should still
be in force. If SCO really does have new specific evidence of illegal copying
that has been developed since their earlier declarations of full disclosue, they
should be required to follow the court's orders and provide it to IBM.

[ Reply to This | # ]

SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: J.F. on Sunday, July 11 2004 @ 05:49 PM EDT

Let's not overlook the 56(g) clause:

(g) Affidavits Made in Bad Faith. "Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt."

It's pretty obvious to anyone following the case that TSG is doing this "solely for the purpose of delay," So, let's all hope that "any offending party or attorney may be adjudged guilty of contempt."

[ Reply to This | # ]

Confused
Authored by: QTlurker on Sunday, July 11 2004 @ 06:04 PM EDT

I get the impression from most of the comments above that SCO2 has not made any specific charges of code copying against IBM -- line by line or otherwise.

Yet they make these charges in MEMORANDUM IN OPPOSITION TO DEFENDANT IBM'S MOTION FOR SUMMARY JUDGMENT ON ITS TENTH COUNTERCLAIM FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT

"Examples of facts from discovery to date that show copying of material from UNIX into Linux include (i) copying of SCO s UNIX Executable and Linking Format (ELF) codes in Linux; (ii) substantial similarity in the Read-Copy-Update ( RCU ) routine in Linux version 2.6.5 and in patches to Linux and the RCU version in SCO s copyrighted work, specifically UNIX SVR4.2 MP; (iii) copying of UNIX SMP 4.2 System V initialization (SYS V init) code in Linux version 2.6; (iv) substantial similarity in the user level synchronization (ULS) routines in Linux and similar routines in UNIX; (v) copying of SCO s UNIX System V IPC code in Linux 2.4.20; and (vi) copying of SCO s copyrighted UNIX header and interfaces in Linux. Gupta Aff. ¶¶ 3-86. Another example of the results of SCO s comparison of source code is the copying of the journaled file system (JFS) module in IBM s successive later versions of AIX in Linux version 2.6. Id. IBM has not produced the early versions of AIX, so that SCO cannot (yet) establish how the JFS in Linux version 2.6 derives from the JFS in UNIX."

.

I know there must be misdirection here, but how?

Signed: a confused programmer

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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: webster on Sunday, July 11 2004 @ 06:16 PM EDT
Great article, PJ, thorough, authoritative, and with attitude. Lawyers would
love to write with attitude but can't to the extent that you employ.

Filing this 56(f) Motion instead of just a strong direct opposition is virtually
a concession that the Motion for Partial Summary Judgment (MPSJ) has merit.

This Motion also appears to be fatally deficient because it is the same old
discovery argument they lost in the beginning...They have to go first. They are
asking for delay to try and establish a derivative Dynix, Unix claim. This is
irrelevant to the MPSJ since even if SCO claimed there was some derivative AIX
code, they would not have the copyright and it would only be a contractual
matter between SCO and IBM. It would not be an infringement until it is
transferred. Also IBM couldn't know about it because it is such a byzantine
contractual interpretation. Only IBM would have to compensate SCO for a
contractual breech. SCO would still have no automatic copyrights in Linux.

SCO keeps pounding on this issue since it is their only one. The judge ruled on
it long ago. It is insulting to the judge to keep bringing it up when he has
ruled. The issue is preserved for appeal. It recurs on the record. The record
speaks for itself. To keep plowing forward as if the judge never contemplated
the issue is like saying "Hey judge, when are you going to get it through
your thick skull that IBM should have disclosed everything first." They
could have gracefully and more powerfully have said "You know our position
on this discovery issue. Given previous rulings we are not in a position to
offer any other opposition and we submit on the record and our previous
filings." I guess they believe that by posturing as if their long lost
position is the right one they will be able to bamboozle the judges on the US
District Court of Appeals. In a trial when lawyers start doing this it is not
unusual for a judge to tell counsel that their ongoing objection to the issue is
noted and on the record and that they do not have to make the same objection to
the same evidence over and over again. They continue to object and vex the
judge. The judge brings them up on it and counsel just say they are doing it
"for the record." Usually at this point there is no love lost between
that party and the court.

---
webster

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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: blacklight on Sunday, July 11 2004 @ 06:23 PM EDT
"Even a decent, friendly tourist from South Dakota can't be hustled twice
[in NYC]." PJ

Sorry, PJ. NYC is the tourist trap and tourist hustle capital of the world: if
it's not the residents [or at least some of them] that do the fleecing, then
it's the NYC and NYS governments. As for hustling twice, decent, friendly
tourists from anywhere in the world: "we" New Yorkers do accomplish
the impossible every day. Having said that, most of us New Yorkers are ethical -
by choice.

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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: blacklight on Sunday, July 11 2004 @ 06:41 PM EDT
"HATCH: In addition to that matter, there's been, you know, as always at
the beginning of the case, the complexity, when we're dealing with good
attorneys and aggressive attorneys, there's been a considerable amount of
jockeying that has affected the schedule. And part of that resulted in Judge
Wells at one point staying discovery for a period of three months. And then at
the end of that three months, giving one party 45 days to respond to some of the
discovery the motion compel [sic] at the beginning of that. So that took about
four and half months out of it, as well."

This paragraph is pretty much an admission from Brent Hatch that SCOG was
ordered to disclose its evidence. If I recall correctly, SCOG complained at each
hearing before each court orders that its resources were being severely
stretched in the effort to provide discovery. If we take the SCOG complaints at
face value, then we must question how SCOG could have found the time both to
provide discovery to IBM and at the same time examine the discovery from IBM -
which IBM, as PJ points out, volunteered to provide.

I note that Brent Hatch failed the disclose the good part: that the two
consecutive court orders were given specifically because of SCOG's noncompliance
with the rules of discovery. I think judge Welles would have saved herself a lot
of grief by making sure that SCOG first and fully provides the evidence for its
allegations before requiring any discovery from IBM, or SCOG's case ends right
then and there. As things stand right now, SCOG is gaming the trial by putting
words in Judge Wells' mouth, and directly blaming IBM and obliquely blaming her
for the delays - delays for which SCOG bears the prime and sole responsibility.
Way to go, judge Wells!

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OT - the consequence of telling five inconsistent stories and getting away with it
Authored by: blacklight on Sunday, July 11 2004 @ 06:50 PM EDT
SCOG is telling five different and inconsistent stories in five different
courts, four of which are Federal. It is imperative that the judges involved in
each trial crack down on SCOG, because there is a real if difficult to quantify
probability that a miscarriage of justice will be perpetrated in any of the
courts at the expense of SCOG's adversaries.

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Depose Linus?
Authored by: Khym Chanur on Sunday, July 11 2004 @ 08:27 PM EDT
How can that be relevant to to IBm's 10th counter-claim? Do they expect him to break down and confess that he stole SysV code or something? If I were Linus, I'd oppose a request for such a deposition, saying "what the heck does the IBM case have to do with me"?

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: Anonymous on Sunday, July 11 2004 @ 10:47 PM EDT
Now, if SCO somehow shows up at a PSJ hearing with some actual evidence of
copyright infringement where code was copied from UNIX SysV to Linux, aren't
they also therefore demonstrating bad faith or outright noncompliance with Judge
Wells' order to satisfy IBM's discovery requests.

IBM requested line-by-line information about all UNIX SysV code SCO alleges was
improperly copied or misappopriated from UNIX to Linux, whether IBM contributed
it or not. They got squat (the malloc.c and error.h code doesn't count).

If SCO hasn't already provided that information to IBM, they have willfully and
knowingly denied IBM appropriately responsive discovery, ignored the judges
order, and misrepresented their efforts to comply with the order. That sounds
like contempt at the very least to me.

So which is worse for SCO, contempt of court or loosing on partial summary
judgement of count 10?

Also, what is the worst that could happen to SCO for withholding evidence and
disobeying the two court orders?

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The Veil
Authored by: Anonymous on Sunday, July 11 2004 @ 11:24 PM EDT
Exactly how far can IBM reach into the Canopy world to extract money when it
wins?

I'd figure at the very least everything of value (haha!) at SCOX can be grabbed
by them, but can they reach in and go through each Canopy company until the
fines are paid?

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Another delay only *hurts* SCO not helps them
Authored by: Anonymous on Monday, July 12 2004 @ 09:42 AM EDT
Another delay now only hurts SCO more. There is going to come a point where the
court is going to say enough is enough, and it's coming soon methinks. I believe
quite soon Kimball will put his foot down regarding the bantering about
discovery and what IBM has to turn over just so things will move on. We seem to
be hung up on this one discovery issue for almost a year (IBM needs to give us
everything).

If there's another delay, it only makes their loss harder to appeal, and it
might convince the RedHat judge that her case needs to move forward because the
IBM case is not moving speedily, SCO is delaying, and this is harming RedHat.

Any way you slice it, SCO's failure to move forward expeditiously is only aiding
their long term demise (yes, I give them no chance of winning the IBM case, they
will have to appeal when they lose, and I'm sure they will).

So let them delay it some more. Sooner or later (probably sooner) SCO will run
out of excuses and judicial patience, and then it's time to pay the piper.

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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: Anonymous on Monday, July 12 2004 @ 12:07 PM EDT
>>How? By what mechanism?<<

By telling scox that - after 16 months - ibm has the right to know why it' being
sued. IBM has asked for this evidence, IBM has a right to the evidence. The
court should instruct scox to provide the evidence.

>>*This* is how the system works. Look at history. Do not claim that the
court is being exceptional here, they are not. *Your* way would be an
exception.<<

Bottom line: the judge could instruct scox to provide ibm with requested
evidence, or dismiss the case due a lack of evidence; but the court won't do so.
At least not in any meaningful way. Everytime scox defies a court order, the
court just indulges scox that much more. After 16 months, it's fair to ask
what's going on here?

>>The court will never ask the SCOundrels for evidence.<<

Wrong. The courts have already demanded the scox provide evidence - twice in
fact. Scox simply defies the courts orders, and the court doesn't mind. Why
not?

>>IBM will, and has, and given that it was not forthcoming has demanded a
Partial Summary Judgement.<<

Pffft. And has simply demanded another delay. The court always gives scox what
scox wants. No bias there, right?

The courts allowed scox to openly defy two court orders. The courts have allowed
to hide evidence which scox claims to have, and should indeed have.

Darl McBride 2003-06-25: "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."

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We need punctuation to indicate anger...
Authored by: edumarest on Monday, July 12 2004 @ 02:00 PM EDT
Anger can be effective in overcoming complacency.

It comes in all flavors and strengths. Use only as much as you need.

We have punctuation such as a period (.) to end a sentence; a question mark (?)
to indicate a question; and an exclamation mark (!) fir emphasis. We need a
punctuation mark to indicate anger. IMHO.

---
A generation which ignores history has no past and no future.
Robert Heinlein (1907 - 1988), The Notebooks of Lazurus Long

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SCO's Rule 56(f) Motion In Further Opposition to IBM's Motion for Partial Summary Judgment
Authored by: Anonymous on Monday, July 12 2004 @ 02:12 PM EDT
What the judge should do is tell SCO that it has move the trail date to Jan 2005
or may be Nov 2004. Because all the time SCO has wasted the court's time in
these delaying tactics.

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