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Eyewitness Reports from the DC Hearing - SCO Trounced
Wednesday, July 21 2004 @ 12:23 PM EDT

UPDATE: [5:41 PM]

Confirmation. Groklaw's champion courtroom eyewitnesses got it exactly right. You can read all about it in the media now, with confirmation from the court, DaimlerChrysler, and SCO, who are reportedly "examining their legal options", ha ha. First Stephen Shankland's account:

"The SCO Group, a struggling company with a loud campaign to profit from Unix intellectual property, has largely lost a case it brought against DaimlerChrysler.

"In a hearing Wednesday, Judge Rae Lee Chabot of Oakland County Circuit Court in Michigan granted most of DaimlerChrysler's motion to dismiss the case, SCO and DaimlerChrysler representatives said. . . .

"'The case "for the most part probably is' over, SCO spokesman Blake Stowell said.

"'We're satisfied that DaimlerChrysler did finally certify their compliance with the software agreement, but we are still interested in gaining some information on why they didn't certify within the allotted time,' Stowell said. The case 'is not completely over yet, because the judge still held out the possibility that we could pursue trying to find out information from DaimlerChrysler on why they took so long to certify.'"

Don't you love it? Maybe it took so long because they were doubled up on the floor laughing so hard, they couldn't lick a stamp.

And a second confirmation, from ComputerWorld:

"Michigan judge throws out SCO lawsuit against DaimlerChrysler

"Everything but one minor claim by SCO was rejected

"In a move that could have legal ramifications for a number of lawsuits filed in recent months by The SCO Group Inc., a Michigan judge today threw out SCO's lawsuit against DaimlerChrysler AG"

I do so thank our volunteers for taking time out to run to the court to be our eyes and ears, not only ours, but the world's, because I believe we had it first.


I have just heard from two readers who did attend the DC hearing. The eyewitness accounts are subject to later clarification, simply because neither is a lawyer and that can lead to missing certain details, as they disclaim in the reports. But with that disclaimer, this is what they say happened. I know we all wish to thank them both for attending the hearing, so we can get a fast report.

What they are telling me is that DaimlerChrysler's motion for summary disposition was granted in all particulars except one, which is whether they replied fast enough or should have done so within 30 days. What that means is SCO's action against DC is over in all meaningful senses. I can't believe they will wish to spend the money to litigate over something so trivial with no conceivable damages or useful relief, even if they were to prevail, and I doubt they could anyhow. Still, this is SCO, so we will have to wait and see. But the most significant thing is, they can't do discovery the way they seemed to hope to be able to do. How much discovery do you need to do about being 30 days late? The bottom line is they were, by both accounts, trounced and trounced good.

So you can get the full flavor of the day, here are both reports.

******************************

REPORT 1, from eggplant37:

Well, like a wolf at a corpse, Judge Chabot has eviscerated SCO's case against Daimler. Here's my narrative of what happened in court:

I arrived at 0800 to the courtroom and found that SCO v DC was 18th on the motion callsheet, nearly close to the end of the session, as there were only 22 cases to be heard this morning. . . . DC's lawyers were rather jovial during the checkin period prior to court being called into session, and SCO's attorneys looked rather concerned but cool about it. Mark Heise reminded me of Superman actor Chris Reeves in appearance. Ryan Tibbits reminded me of a big, blocky Marine drill instructor as to his appearance.

The courtroom didn't open up until 0820 and I watched the various attorneys, both from the SCO v DC case and several other cases being heard this morning, as they checked in. At 0841, the clerk called the SCO v DC attorneys up for a brief discussion, during which I was able to overhear the clerk tell them that he would "like to get [them] in and out."

At 0850, the clerk came over to the SCO side of the bench and spoke briefly with them, telling them "five minutes", I think stating the amount of time that each side would be granted for arguments. DC's attorneys came over and confirmed with the SCO attorneys what the clerk had to say.

Court was called to session at 0905. Judge Chabot is a petite woman with a very short, close-cropped hairdo, and looked determined and no-nonsense in her affect. Judge Chabot heard and ruled on a motion in the first case heard in less than 30 seconds, which seemed to surprise both attorneys in that case. One attorney in that first case jokingly commented that she hoped that this ruling would set precedence in how speedily cases would be heard this morning, which was met with laughter throughout the courtroom.

Second case was heard at 0906, third case at 0917, fourth case at 0921, fifth case at 0931, 6th case at 0940 and 7th case at 0942, so this shows that Judge Chabot is one speedy lady who doesn't muck about while running her courtroom.

SCO v DC was called at 0942. Barry Rosenbaum arguing for SCOand James Feeny arguing for Daimler, and motions were heard to admit Heise and Steven Prout?? pro hac vice for SCO, and also to admit Mark Matuschak from Massachussetts pro hac vice for Daimler, which the Judge granted.

First, DC's lawyer argued Daimler's summary dispo motion, noting from the outset that this was a more technical case, dealing with software and licensing agreements, and that he would frame the case briefly, in about 30 seconds. Chrysler says that the case is about whether or not section 2.05 of the SA requires a certification of compliance with detailed enumeration of extraneous facts outside the agreeement, or whether it simply requires a brief certification that licensee has complied with the terms of the license agreement.

Mr. Rosenbaum then went on to recite the language of Section 2.05. He stated that the letter requesting the certification from SCO went quite far outside the unambiguous language in section 2.05 when it asked to enumerate information regarding DC's use of Linux. Daimler didn't file the certification until after SCO filed it's lawsuit, which on its face appeared to be about the contract provisions being breached due to DC not giving SCO their compliance certification in a timely fashion.

Mr. Rosenbaum then went on to recite paragraphs 2 & 3 of DC's response letter, stating that there were *no* cpu's running SCO's software, that not providing a list of cpu's that weren't in existence and hadn't been used in more than 7 years was more than sufficient to comply with the language of 2.05. Since the language of 2.05 is unambiguous, there is sufficient grounds to grant summary judgement on all assertions in SCO's complaint.

Mr. Rosenbaum's presentation was clear-cut and concise, and he finished by stating that the original letter didn't request a list of CPU's running SCO's software. Since there were no CPU's running SCO's products, DC felt it was immaterial as to whether or not they responded within 30 days.

At 0951, Mark Heise then argued the SCO side of the case. He asserted that he would be brief, which surprisingly enough he was. He felt that DC's SA gave them full access to the source code, the crown jewels if you will, and that DC had been given the right to use, modify and create derivatives for their own internal use, and that the SA required that they keep the software confidential, that it should not be exported outside the US -- which in this case seems to be a concern since Chrysler's recent merger with Daimler Benz of Germany. He also used his favorite tagline about the concepts, methods, etc that they are looking to protect in this case.

As Mr. Heise argued, Judge Chabot was looking less than impressed and certainly not entertained by SCO's argument. Heise went on to argue the point that DC's answer to the request for certification was not timely nor was it adequate in that SCO has fears that the source code still lives on disk on some computer somewhere at DC and they are entitled to know where it's stored. He also stated that DC is not alleviated from the terms of the SA once they have decided to take the CD's or tapes or whatever of the source code and toss them in a closet somewhere, and that they needed full certification that the software had been held in confidence by DC.

He went on to recite the terms of section 6.02 of the SA, stating that Chrysler, upon ceasing use of the software, was bound to either destroy all copies or return the software and to notify SCO that they did same. Again, he expressed his concern that in DC's use of the Linux software they were worried that they may be allowing SCO's methods and concepts out into the Linux community. He concluded that the fact that the client has not used the software in 7 years there is still no out from the original contract terms. He finalized that they would like to know, again, which CPU's that the source code is stored on, seeming not to believe that since decommissioning SCO's products, the software isn't loaded *anywhere* on DC's equipment.

At 0959, Mr. Rosenbaum was given another minute to answer SCO's arguments, and broadly stated, "Your Honor, this is a fishing expedition." In the original complaint, there was no claim that DC had exported the software or disclosed it to anyone outside the company, that the case is about DC's breach of section 2.05 of the SA. The language of the 2.05 section has nothing about a certification that DC kept the software confidential, at which point the judge looked rather amused.

At 1000 Judge Chabot issued her orders:

Summary disposition is granted except on the matter of breach of section 2.05, in that DC did not submit their response in a timely manner. All other claims were dismissed and she acknowledged that the contract doesn't require certifications that are outside the language of the contract. . . .

At this point, the court session was concluded and the judge left the room. I headed toward the door and proceeded to congratulate the DC attorneys. The SCO attorneys all looked rather discomfitted by the Judge's rulings, realizing that she just gutted their case. I could almost hear the screaming all the way from Utah.

So, there it is. I'm hoisting a beer in celebration as I write this. Congratulations again to Daimler Chrysler and their attorneys for very successfully trouncing this case, whittling it down to the only possible claim that SCO could have -- that DC should have answered up more quickly.

****************************

REPORT 2:

As far as I can determine, the DC's request for summary disposition has been granted. The only remaining issue is whether 30 days is an adequate time to respond.

Now take it from me with a pinch of salt, because I have never been in a court and don't understand legalese too well.

Before the judge came in, the clerk told the parties that they had 5 minutes each to plead the case. DC went on first. DC stuck to the facts. Never mentioned Linux.

SCO was up second. SCO went beyond the boundaries of the case, just as in the filed doucments, about "just specifying a list of CPU is not enough" , "what if the was exported to Germany for e.g., since Daimler is German" "even if it isn't used, but sitting on a server somewhere, who knows what will happen", "what if they used the source code and made derivative works out of it", "what if they contributed to Linux?" , "DC has to certify all these issues we are raising now.". So they went on like this for a while on topics that aren't supposedly covered in section 2.05 or the agreement. DC did a brief rebuttal, mainly about the fact that it's about 2.05, and that all the arguments that SCO is putting forth have nothing to do with 2.05, DC also mentioned to the court that SCO was on a fishing expedition by bringing up all the other issues.

Then the judge ruled without further questioning. Apparenly, she had done her homework and read up about it and made up her mind, and none of the morning's arguments changed her mind. She had a prepared ruling and read from it, That's why I couldn't get it all inside my head, she read it too fast. But I seem to hear that except for the 30 day limit specified by SCO, DC's motion for summary disposition was granted, effectively throwing out SCO's case. I seem to hear that SCO could litigate whether 30 days was adequate or not. As for the other contract issues not covered by 2.05, the judge says, well, it is not part of this case. I will have to wait for the official ruling transcripts to be absolutely sure about what I heard.

Four attorneys from DC were there, and four from SCO. Heise was there. There was another attorney who came in separately and introduced herself to the entire DC team, but sat apart and did not partake in the arguments or in the other cases for the day. I suspect that she might be from IBM or Novell or Redhat.

I had the impression that Judge Chabot was a no-nonsense type that did not suffer fools too well. I got this impression from the other cases that she was ruling this same day before this SCO case -- she was pretty sharp to the lawyers. But on the SCO case itself, she did not need to cut off any of the attorneys on either side.

Neither side brought up the other cases, IBM, Novell, or Redhat. Linux got mentioned only by SCO in a contrived way during SCO's arguments.


  


Eyewitness Reports from the DC Hearing - SCO Trounced | 550 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT and links, please
Authored by: overshoot on Wednesday, July 21 2004 @ 12:55 PM EDT
keep it neat, people!

[ Reply to This | # ]

OT Links here
Authored by: jam on Wednesday, July 21 2004 @ 12:56 PM EDT
--

[ Reply to This | # ]

Corrections here please
Authored by: Anonymous on Wednesday, July 21 2004 @ 12:56 PM EDT
So that PJ can findthem easily.

Lo´c

[ Reply to This | # ]

Eyewitness!
Authored by: kberrien on Wednesday, July 21 2004 @ 12:58 PM EDT
I can finally get on with my day now! Thanks to those who attended!

So, the only issue at hand (all other dismissed) is, was 30 days a legitimate
time for a reply? Its so nice, no discovery, no evidence digging for other
cases on the part of SCO.

Can we say this is the first complete anti-SCO ruling to date, or should be hold
judgement until the 30 days issue is litigated, dropped, settled, etc...

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: Anonymous on Wednesday, July 21 2004 @ 12:59 PM EDT
Congrats to DC on a job well done! I can't wait to hear how SCO tries to spin
this or downplay it's importance (as if there ever was any)

[ Reply to This | # ]

So, today's betting pool is...
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:02 PM EDT

how will TSG spin this loss to the media?

"The judge in the DCC case today streamlined our complaint, which we will vigorously pursue."

[ Reply to This | # ]

What about motion to strike?
Authored by: Lev on Wednesday, July 21 2004 @ 01:05 PM EDT
Was DC's motion to strike parts of Broderick's affidavit discussed at all? Was
it made moot by the ruling?

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:05 PM EDT
Not to belittle the second report from the DCC case -- if that's all we had it
would be quite all right -- but the first report is astonishingly good. I have
never seen a courtroom report that covered the breadth and depth of the event as
well, it's almost as if we were there. The timestamps -- very nice. The
colorful introduction packs a nice punch in few words. The details of the
arguments and the judgement seem complete, although we'll all have to wait for
the transcript to be sure.

To both witnesses -- thank you very much indeed. I hope I can repay the favor
someday.

Thad

[ Reply to This | # ]

Worst Case Scenario
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:11 PM EDT
What is the worst that can happen now, if the judge rules in SCOX's favor on the
one remaining portion of the suit? Any ideas on possible penalties, etc? Also,
how long should we expect to have to wait for the ruling?

[ Reply to This | # ]

what about court costs and legal expenses?
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:17 PM EDT
Doesn't someone have to pay court costs?
DaimlerChrysler's Motion for Summary Dismissal (as linked
above) doesn't seem to ask for legal fee reimbursment, how
is that handled? Will the actual written ruling address
these points?

[ Reply to This | # ]

30 days
Authored by: overshoot on Wednesday, July 21 2004 @ 01:25 PM EDT
Is 30 days a reasonable requirement?

Let's consider:

  • First-class letter instead of registered
  • End-of-year mail congestion
  • Wrong address
  • Addressed to "CEO" of a company that no longer exists
  • From a no-name company that DCC has no relationship with
  • End-of-year holidays
So far, this sucker has spent at least three weeks just getting routed around the mail system trying to find someone to handle it.

Once it lands on some IT staffer's desk in Germany:

  • He has to find out who the [expletive] SCO is
  • He has to track down a license agreement that's been in cold storage for at least seven years
  • He has to find out what happened to a computer that's been in a landfill since the previous millennium
  • He then routes this cow patty to some poor sucker in the USA.
  • Oh, and in the meantime he has real work to do
Long before the answers have a chance to come back, Legal gets the news that some idiots in Utah have filed suit against DCC. At that point:
  • Legal has to track down the original letter
  • Legal has to put a hold on any response (after all, the companies are now in litigation)
  • Legal has to repeat most of the investigation all over
  • Legal retains Counsel
  • Counsel contacts SCOX counsel and tries to talk sense
  • A reply has to be drafted
  • Counsel has to (again) review everything
  • The reply (finally) gets sent.
Frankly, I'm amazed that it only took 110 days! After all, Judge Wells gave SCOX thirty days to cough up some answers almost two weeks before SCOX sent those letters, and they still haven't done so.

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: blacklight on Wednesday, July 21 2004 @ 01:26 PM EDT
"At this point, the court session was concluded and the judge left the
room. I headed toward the door and proceeded to congratulate the DC attorneys.
The SCO attorneys all looked rather discomfitted by the Judge's rulings,
realizing that she just gutted their case. I could almost hear the screaming all
the way from Utah."

Oh well: another day, another castration. My congratulations to the groklaw
community whose incisive analysis is vindicated yet again. I wish all the judges
involved in the various SCOG inspired litigations modeled their effectiveness on
Judge Chabot's example. The only regret I have about Judge Chabot's decision is
that we won't get an opportunity to experience more about this legal tornado of
a judge.

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:29 PM EDT
Congratulations to DC! Need to go out and buy a Mercedes Benz as celebration.

"But honey, you don't have money to buy one!"

[ Reply to This | # ]

Three points
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:39 PM EDT
1. The 30 days issue is going to extremely limit the case, if it goes forward

The only discovery is going to relate to whether 30 days is or isn't reasonable

e.g.
How long did past certification requirements (if any) take to respond

When was the last certification requirement (if any)

What have SCO and their predecessors (if they are indeed SCO's predecessors)
accept as the time limit for certification in the past.

Did SCO send the letter to the right address etc. (they didn't we know)

etc.

For example, if AT&T were happy with a certification response in (say) 6
months, back in 1988 or whatever, this is not going to be too helpful to SCO.


2. Assume, arguendo SCO were to win on the 30 days thing:

Question: WHAT ARE THE DAMAGES?

How much loss did SCO suffer from DC taking 75 days to respond "we aren't
using the software"

Frankly I see it hard to see any.

SCO's arguments for damages are two-fold:

(i) It sets that an example to other licensees blah blah. Well that isn't
damage caused by DC.

(ii) SCO had to institute litigation to secure compliance, therefore the cost of
the litigation itself. Well, that seems like self-inflicted damages, or failure
to mitigate. ( Not least because their litigation seems to have include some
meritless claims that were struck down by immediate summary disposition) SCO
could at least have tried a follow-up letter sent to the right address


3. I personally think DC will file counterclaims. They told SCO that they might
in the letter sent to which the USL certification was attached - and gave SCO
the opportunity to voluntarily dismiss the case at that point. As SCO refused,
and persisted with meritless claims, it would almost seem to precipitate the
counterclaims that DC already hinted at.


Quatermass
IMHO IANAL etc

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:45 PM EDT
So what's next? I have a hard time keeping everything involved in this fiasco
in my head. Has anyone thought about producing a 'schedule' for us poor groklaw
readers? Maybe with notes for each event for us law-laymen? And maybe links
from past events to groklaw (and other) articles describing the outcomes?

[ Reply to This | # ]

  • WHATS NEXT - Authored by: Anonymous on Wednesday, July 21 2004 @ 03:45 PM EDT
    • WHATS NEXT - Authored by: Anonymous on Sunday, July 25 2004 @ 09:02 PM EDT
Rough order of events ?
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:46 PM EDT
I'd like to know what should be a rough order of event for the "30
days" issue. I don't know what TSCOG will like to see as discovery
(probably all blue prints of all Dodge, Mercedes from 1900 onwards), DC will
probably ask at least for proof that TSCOG is successor of AT&T. Then some
witnesses: IT staff of DC and Broderick (at least). Then eventual trial ? Apart
from the usual "amend and extend" from TSCOG what kind of motions
should we expect ?

Lo´c

[ Reply to This | # ]

Thanks Eyewitnesses
Authored by: rsteinmetz70112 on Wednesday, July 21 2004 @ 02:05 PM EDT
Thank you for taking the time to attend the hearing and to provide such prompt
and complete reports.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

One down, three to go
Authored by: maroberts on Wednesday, July 21 2004 @ 02:08 PM EDT
SCO v DC
RedHat v SCO
SCO v AutoZone
SCO v IBM

Nice to see a judge waste no time.

[ Reply to This | # ]

The SCOball is Rolling Downhill
Authored by: ujay on Wednesday, July 21 2004 @ 02:24 PM EDT
Nice report from the 2 attendees. I'm looking forward to the transcripts.

SCO has been delivered several serious blows in it's litigation parade

I noticed that it was reported that the judge seemed to change her behaviour
somewhat when dealing with this case, such as not interrupting or getting sharp
with the attorneys - good tack on her part. She may know that even though this
is not majorly carried in the mainstream press, it is a high profile case, and
did not want to leave any holes for appeal.

I noticed that SCO's stock started tanking shortly after 11:00 AM, probably in
response to this news.

A lot has been made of SCO sending the original letter to the wrong address. I
doubt that the USPS in Detroit would have any trouble delivering a letter to
Chrysler Corporation, so using that as a justification for delay may not be in
their best interests. However, the delay can be justified on several other
points, such as DC looking through old files, trying to figure out who SCO is,
and the usual questions rising from the den of iniquity know as legal.

There was a good faith effort by DC to resolve the issue, but it was too late,
as SCO filed the suit like a kid grabbing for candy, without any good faith
effort on their part to resolve the issue.

Will SCO refile on the 30 days issue? While it may not help them in the long
run, they may try to spin this as 'court upheld our argument of delay", and
get some mileage out of misinformation for their stock. Then again, DC's legal
team are quite sharp, and it is more probable that SCO would get spanked again
if they tried.

Have SCO refiled in the Novell case regarding the 'special damages' out the
judge left them?


---
IE is not a browser, it is a scream.

[ Reply to This | # ]

Predictions Anyone?
Authored by: rsteinmetz70112 on Wednesday, July 21 2004 @ 02:33 PM EDT
I predict that SCO and DCC will agree to drop all remaining issues, including
the 30 day and DCC demand for costs.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: Anonymous on Wednesday, July 21 2004 @ 02:37 PM EDT
That first person to recount, didn't put a timestamp on the beer consumption.
10:15a maybe?

Very good news, and I thank those two who attended and provided their
experiences.

[ Reply to This | # ]

What DC should do...
Authored by: Anonymous on Wednesday, July 21 2004 @ 02:41 PM EDT
Find all the SCO software they have and hand it over to their engineers with the
specific order to devise a way to destroy it all with the greatest visual
impact. Then create a video showing all their SCO software being destroyed and
a certification of it being done so. Then send the video, the certification,
and a check for a $1000bucks in a card that says...

"Sorry we were late with certifying the destruction of your software,
please accept this certification and this video as proof as well as this check
for any inconvience our tardiness may have caused. Have a nice day. PS: Good
luck with that IBM thing."

Then post the video so we can get a good laugh and pass it around like Balmer's
monkeyboy dance!

[ Reply to This | # ]

[OT] SCO Score card
Authored by: HawkEye on Wednesday, July 21 2004 @ 03:48 PM EDT
From a post on /. I found this rather useful site that details all the current SCO cases and there progress in the courts. Hope others find it useful.

Score Card

---
Regards

Neil

[ Reply to This | # ]

smart lawyering heads off fishing trip
Authored by: Paul Shirley on Wednesday, July 21 2004 @ 03:57 PM EDT
I like the way DC resisted the temptation to question whether the certification
demand was sent correctly. If they had questioned it up front SCOG would be able
to try for discover to verify the facts, as we've seen with SCOG they treat
discover as an open ended invitation to demand anything and everything.

Instead, all the things they clearly want to search for related to source code
have already been thrown out and discovery in the remaining 30 day claim is
totally controlled by DC. If they argue purely on the contract discovery is not
needed.

Neat bit of work, it guts their overt case and leaves no way to pursue the
covert aim (the fishing trip).

[ Reply to This | # ]

Appeal?
Authored by: mobrien_12 on Wednesday, July 21 2004 @ 04:37 PM EDT
Can SCO appeal the dismissal of their (ridiculous) claims?

If so, how long do they have to file the appeal?

[ Reply to This | # ]

Judgment Analysis: worst possible for TSCOG
Authored by: AllParadox on Wednesday, July 21 2004 @ 04:41 PM EDT
IMHO, this vicious ruling is what one might expect from filing suits that are
frivolous or untrue on their face. I, myself, do not know for certain that the
TSG claims were frivolous or untrue, but am strongly persuaded that they might
be.

I am not slamming the judge here. Courtrooms are where the big boys play
hardball. Judges are overworked as it is. Filing frivolous or untrue pleadings
is a direct insult to the intelligence and integrity of the court. Many judges
are elected or retained by popular vote, and are extremely sensitive to cases
that might get noticed by the press, that would make them appear foolish to
voters. Attorneys who insult the court deserve what they get. Note that this
judge prepared her remarks in writing and read from the prepared draft. She
knew very well that there were courtroom observers and that this was a very
high-profile case.

A novice might think that a worse ruling would be complete dismissal.

However, look at the effect. This case is not yet final. TSG just lost
everything worth complaining about (damages for DC's late certification would be
what, exactly? $1.00US would be excessive, IMHO). In spite of that, they cannot
appeal yet, because this case is not final. They could make the case final by
dismissing the late certification claim, essentially admitting that it was
worthless from the beginning. If they forge on with the suit, it will be
delayed until after the IBM and Novell suits are finished, or they will have to
put on a jury trial to prove that they were damaged by the late certification
from DC, and the amount of damages.

IMHO, this ruling is a very clear message to the TSG attorneys: get this out of
my courtroom, and never come back.

This judge might just allow a jury trial on the issue. Any attorney foolish
enough to try this case for TSG should bring his bar license to court every day
during the trial. He should expect many adverse rulings, a verdict much earlier
than expected, and that his bar license will be suspended after the verdict and
before he leaves the courtroom. Yes, judges can properly be this vindictive
with stupid, insulting, lawyers.

Something very similar happened in an Iowa courtroom in a criminal child neglect
case, where the verdict was "Not Guilty", then the judge called the
prosecutors to the bench where he suspended their licenses pending review by the
ethical committee.

This judge did not set up a reversal on appeal by unfairly targeting TSG.
Appellate courts are also very sensitive to insults to lower courts. Appellate
records that include things like the Broderick affidavit strongly argue to
appellate judges that the trial court made no mistakes, or that if an error
perchance somehow did happen, that it was intentionally invited by the conduct
of the TSG attorneys (When the court errs because you invited, or asked for, the
error, you get no reversal).

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Stonewell speaks....
Authored by: Eeyore on Wednesday, July 21 2004 @ 05:09 PM EDT
We have an actual quote (go figure) from SCO.... ZDNet has the following quote:
The case "for the most part probably is" over, SCO spokesman Blake Stowell said.

"We're satisfied that DaimlerChrysler did finally certify their compliance with the software agreement, but we are still interested in gaining some information on why they didn't certify within the allotted time," Stowell said. The case "is not completely over yet, because the judge still held out the possibility that we could pursue trying to find out information from DaimlerChrysler on why they took so long to certify."

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: John M. Horn on Wednesday, July 21 2004 @ 05:16 PM EDT

Geez! Bobby Heinlein wrote books faster than Groklaw is responding today...
Well, it almost seems that way.

John Horn

[ Reply to This | # ]

Stowell's comments
Authored by: Anonymous on Wednesday, July 21 2004 @ 05:48 PM EDT
Stowell said the lawsuit against DaimlerChrysler could have been avoided had
the automaker responded to SCO's request for a compliance certification
within the allotted 30 days. "It's a little unfortunate that it took a
lawsuit for
them to respond to what was a real simple letter asking them to certify,"
he
said. "We wish they would have just certified with the first request that
came
in to begin with."

WHAT A LIAR. This case has never been about the delay and would not have
been preventable if Daimler sent a letter in time saying "we don't use your

crap". SCO wanted them to certify what they do with Linux and thats why
they
sued. WTF does the SEC do with my tax dollars? These guys are worse than
Enron and the commission is just sleeping through it.

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: blacklight on Wednesday, July 21 2004 @ 05:50 PM EDT
5:41 PM Update: "I do so thank our volunteers for taking time out to run to
the court to be our eyes and ears, not only ours, but the world's, because I
believe we had it first. " PJ

We had it first, and we had it right.

[ Reply to This | # ]

Appealing the decision
Authored by: Anonymous on Wednesday, July 21 2004 @ 05:54 PM EDT
A lot of people asked if SCO could appeal the decision. The short answer is
yes.

The long answer is yes, but it probably wouldn't help. The court of appeals
doesn't accept new evidence. It only answers the question 'has the trial court
somehow made a mistake in their decision?' Since the case was so short, there
isn't much evidence to review. In addition, according to the MI state appellate
court web page faq, cases are usually concluded in 18 months
(http://courtofappeals.mijud.net/court/faq.htm#q8).

Also, MI has an intermediate court of appeals to hear this. After that, it
would be final. I seriously doubt that the supreme court of MI would choose to
hear this case.

--
Mike

[ Reply to This | # ]

Virtual Blog Party
Authored by: Nick Bridge on Wednesday, July 21 2004 @ 06:12 PM EDT
I think we should have a vitual party to celebrate!

Start a new story something along the lines of:
"We are having a virtual party to celebrate SCO's trouncing by
DaimlerChrysler.

Please bring a bottle, and be ready to say a few words about how you're
celebrating.

There are virtual petit fors, and a virtual door prize.

Expect the partying to go on late!"

Then, everyone should be encouraged to post their glee, etc.

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: John M. Horn on Wednesday, July 21 2004 @ 06:26 PM EDT

I suppose there may be some folks somewhere who install the kernel sources on
every production box - but I haven't a clue why they would. I cannot imagine
that Daimler-Chrysler does so. Perhaps their IT dept. has the sources installed
on a few dozen boxes for various projects but 2,000...? Whatever for!?!

John Horn

[ Reply to This | # ]

Didn't anyone tell sco
Authored by: icebarron on Wednesday, July 21 2004 @ 07:30 PM EDT
About the no fishing signs posted at the courthouse doors?!?

The fat lady has bellowed out the song of the north...


Peace to one and all...

Dan

[ Reply to This | # ]

WTF!?!?
Authored by: Anonymous on Wednesday, July 21 2004 @ 07:33 PM EDT
Before the hearing, SCOX stock was down like 20 cents. End of day, after the
hearing, it's up 10 cents for the day? How is it that a company who's entire
future rests on the results of these cases gets its booty handed to them in one,
and it's stock goes up? Especially after it was slumping at the beginning of
trading?

fishy

[ Reply to This | # ]

With apologies to...
Authored by: Anonymous on Wednesday, July 21 2004 @ 07:41 PM EDT
Ernest L. Thayer

Heiseman At The Bat

The outlook isn't brilliant for the SCOville team today,
The score stood one to zero, with but one inning more to play.
The AZ judge stayed action in the Nevada case,
As SCO tried to extend its FUD and win the Redmond race.
A straggling few ignored the facts and tried history to rewrite
And cling to that eternal hope embodied by Endearl.
They thought, "if only David Boies could get a whack at that.
We'd put up even money, with Mark Heiseman at the bat."
But Hatch preceded Heiseman, as did also Robert Blake;
and the former is a hoodoo, while the latter is a flake.
So upon that stricken multitude, grim melancholy sat;
for there seemed but little chance of Heiseman getting to the bat.

But Rosenbaum pinched a single, to the wonderment of all.
And Blake, the much despised, tore the cover off the ball.

And when the dust had lifted,
and men saw what had occurred,
there was Blake safe at second and Barry a-hugging third.

Then from five thousand throats and more there rose a lusty yell;
it rumbled through the valley, it rattled in the dell;

it pounded through on the mountain and recoiled upon the flat;
for Heiseman, the mighty Heiseman, was heading to the bat.
There was ease in Heiseman's manner as he stepped into the mud,
there was a purpose in his bearing as he prepared his FUD.

And when, responding to the cheers, he lightly doffed his hat,
no stranger in the crowd could doubt that Heiseman was at the bat.

Ten thousand eyes were on him as he rubbed his hands with dirt.
Five thousand tongues applauded when he wiped them on his shirt.

Then, while James Feeny ground the ball into his hip,
defiance flashed in Heiseman's eye, a sneer curled on his lip.

And then the leather-covered sphere came hurtling through the air,
and Heiseman stood a-watching it in haughty grandeur there.

Close by the sturdy batsman the ball unheeded sped --
"That ain't my style," said Heiseman. ôStrike one!ö Judge Chabot
said.
From the benches, filled with the faithful, there rose a muffled roar,
like the beating of the stormy waves on a stern and distant shore.

"Kill her! Kill the umpire!" McBride shouted from the stand,
and it's likely they'd have killed her had Heiseman not raised his hand.

With a smile of Christian charity, great Heiseman's visage shone,
he stilled the rising tumult, and bade the game go on.

He signaled to the pitcher, and once more the dun sphere flew,
but Heiseman still ignored it, and Judge Chabot said, "Strike two!"

"Fraud!" cried the maddened thousands, and echo answered
"Fraud!"
The FUD machine led by Bill Gates was about to be awed.

They saw his face grow stern and cold, they saw his muscles strain,
and they knew that Heiseman wouldn't let that ball go by again.

The sneer has fled from Heiseman's lip, the teeth are clenched in hate.
He pounds, with cruel violence, his bat upon the plate.

And now Jim Fenny holds the ball, and now he lets it go,
and now the air is shattered by the force of Heiseman's blow.

Oh, somewhere in this favored land the sun is shining bright.
The band is playing somewhere, and somewhere hearts are light.
And, somewhere men are laughing, and little children shout,

But there is no joy in SCOville --
The Heiseman has struck out.

Sorry, just couldn't resist.

[ Reply to This | # ]

Love the "we are victims here" tone
Authored by: Anonymous on Wednesday, July 21 2004 @ 07:48 PM EDT

I just love the way the press releases from SCO play themselves as the victims. For instance (quoted from the Computer world article) "We wish they would have just certified with the first request that came in to begin with."

Do their Spin-Meisters really think there is some reason to even attempt this vague role reversal?

How often does the "we didn't want to sue, but we just had to because they were beeing big, unresponseive, meanies" defense actually work in the court public opinion anyway?

[ Reply to This | # ]

"Judge Dismisses Most of SCO Group Lawsuit" X 30! :-)
Authored by: belzecue on Wednesday, July 21 2004 @ 09:56 PM EDT
Wow. I have never seen this: a google news search by date on "SCO"
and "linux" currently shows the first 30 stories all with the
identical abovementioned title, and presumably all syndicated copies of the one
article. This news is going far and wide. And the next 10 stories are also
variations on the SCO-crash-and-burn news.

I couldn't think of a better news title to be trumpeted to the world, seeing as
how it suggests SCO has had most of ALL of their claims dismissed. Perhaps SCO
will now start suing the press for irreparable harm...

[ Reply to This | # ]

Were other companies as smart as DC?
Authored by: Anonymous on Wednesday, July 21 2004 @ 10:11 PM EDT
An interesting thing to know would be how many other companies among the
thousands SCO sent letters to responded in the same way as DC, strictly
according to the wording of the contract. I hope most companies ran the issue by
their corporate legal department, and that most saw the letter for what it was
-- SCO asserting far greater rights than their contract allowed for.

Anyone who blindly followed SCO's demands and provided the requested information
concerning Linux will by now realize they merely provided SCO with documentation
they could use for picking potential targets of future litigation.

[ Reply to This | # ]

Did the judge set a trap for SCO
Authored by: micheal on Wednesday, July 21 2004 @ 11:08 PM EDT
The judge did not grant the motion to strike parts of the William Broderick
affidavit. If SCO tries to continue this case then Broderick may be charged with
perjury (filing a false affidavit).

Does this make sense?

IANAL

---
LeRoy -
What a wonderful day.

[ Reply to This | # ]

SCO Stock up???
Authored by: Anonymous on Wednesday, July 21 2004 @ 11:36 PM EDT
I was looking at SCO stock today. This morning before I went to work it was
down. When I got back and discovered the DC ruling I checked their stock to see
how far it had gone down. The market in generall was certainly down. SCO's stock
however after this huge defeat for them was up by ten cents. I just don't get
it. Is there anyone who can explain how this happened?

[ Reply to This | # ]

at theregister.com also ....
Authored by: Anonymous on Thursday, July 22 2004 @ 01:26 AM EDT
There is also a story at:   theregister.com

But the best part to me is ....

"Groklaw, as always, brought the first word of the dismissal
and has some rousing eyewitness accounts of SCO's
day in court."

:)

George

[ Reply to This | # ]

Was DC certification late?
Authored by: Thomas Frayne on Thursday, July 22 2004 @ 01:40 AM EDT
I think that DC's argument that the contract did not specify a time limit was
persuasive. The judge could have given this point to them as well as all the
major points. Why not?

I think that this might be another case of giving SCOG more rope at the same
time that DC is given an opportunity to file a counterclaim.

DC is under no pressure to settle, since there is no possibility that damages
for delay from an artificial delay resulting from SCOG's sloppy treatment of the
original demand would be large, but there is a large probability that SCOG's
entire suit will be ruled frivolous.

[ Reply to This | # ]

Late precedent for Autozone
Authored by: webster on Thursday, July 22 2004 @ 02:25 AM EDT
Too bad this didn't go down before the Autozone hearing. Might have given some
perspective to the Judge. There we will just see either a stay pending IBM, or
an irrelevant injunction mess before something substantive like the DC decison
could be done.

But given this precedent, if SCO starts to waste time with an attempt at an
injunction, Autozone can approach them with this DC precedent and short circuit
things there also.

---
webster

[ Reply to This | # ]

SCO Trounced: Laura you-know-who rears her head
Authored by: Anonymous on Thursday, July 22 2004 @ 03:28 AM EDT
At:

http://www.sltrib.com/business /ci_2380233

'way down at the bottom:

    "...Laura DiDio, a Yankee Group analyst, said legal experts who thought SCO's case weak to begin with appear to have been right, at least in this case.

    "SCO did not actually prove that DaimlerChrysler violated the terms of their agreement, though they were known to be a big Linux shop," she said."

"At least in this case". Yeah, right. Ever the hopeful shill.

And what did "their agreement" have to do with being "a big Linux shop"?

(Besides nothing..)

Oh well, leave it to Laura to try to desperately imply something negative about Linux from the simple fact that TSCOG just had their head handed to them.

t_t_b

---
APA analysis, see:
http://www.finchhaven.com/TSCOG/index.html

[ Reply to This | # ]

Great report in the Financial Times
Authored by: Anonymous on Thursday, July 22 2004 @ 04:08 AM EDT
The FT has a nice report, amongst other things quoting Stuart Cohen, CEO of OSDL: "Their intent was to pick two users and threaten them in court to put all Linux users on notice. That failed miserably".

[ Reply to This | # ]

ass-u-me
Authored by: Anonymous on Thursday, July 22 2004 @ 05:16 AM EDT
spells *assume*:

From FT report:

Blake Stowell, a SCO spokesman, said: "We were looking for information to
accurately determine if they were holding to the terms of their (Unix) software
agreement. Because they weren't certifying we *assumed* they could be using
Linux."

Speaks a lot for the SCO mentality and the *legal basis* for most of their
attacks on Linux.

Since when does competent IP shysters of the reputation of Boies drag powerful
companies to court based on legal premises like *assume* and "they could
be"???

Clearly - with such a pathetic and half-baked litigation approach - SCO is not
interested and certainly will not win any of their cases - cause the real
intention of their little FUD compaign is to stall the large scale corporate
adoptation of Linux - but on who's behalf and what is in it for them?

[ Reply to This | # ]

Thoughts on rats and ships
Authored by: tangomike on Thursday, July 22 2004 @ 10:10 AM EDT
Meanwhile, I wonder what Mr. Broderick is thinking. Here he walked out on the
plank with his affadavit hanging out. Judge Chabot gave him a pass. He may have
breathed a sigh of relief. Sooner or later though, what DCC legal said about his
affadavit has got to register with him.

I'd be thinking that my buddies Darl et al set me up. I'd be thinking that
that's not very nice and not very loyal. I'd be thinking that when the affadavit
comes up again (as it may well do in Novell or IBM) that I should look after my
own interests first. Maybe I could trade what I know about this mess for another
pass.

Meanwhile, even if this hasn't occured yet, I bet the possibility has now struck
Darl et al. In fact, it's not much of a stretch to imagine some people over at
Microsoft getting nervous.

In between court sessions, it will be fun to watch for signs the rats are
turning on each other.

---
To The SCO Group - show us your cows.

[ Reply to This | # ]

Now I say it WAS a trap
Authored by: jtsteward on Thursday, July 22 2004 @ 10:15 AM EDT
But it failed. The trap was to get DC into court so SCO could argue that DC owed
SYS V license fees for all the Linux servers. The all business judge also saw
through that crap and stopped SCO dead in thier tracks.
Now if we could get the Federal judges to act like her....


---
-------------------------------------------------
Darl needs more bullets, he keeps hitting his foot but he won't go down

[ Reply to This | # ]

ecommercetimes article on hearing: impact on other cases
Authored by: Thomas Frayne on Thursday, July 22 2004 @ 11:19 AM EDT
SCO Loses Unix Copyright Claim

I sent the following response concerning Stowell's remark that there would be no impact on the other cases:

The only impact on the other cases is that we have further evidence that SCOG says whatever they think will help them, ignoring the contradictions with what they said previously.

SCOG says that the contract with IBM gives SCOG copyrights in AIX and that derivatives of AIX are also part of the software products owned by SCOG, but previously said that IBM owns the AIX copyrights. The contract says: "we agree that modifications and derivative works prepared by or for you are owned by you. However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with us."

The contract distinguishes IBM's work from SOFTWARE products, and explicitly states that IBM owns its own work. For a more detailed summary of this, see IBM owns AIX .

SCOG told the Redhat court that the IBM's case was filed first in March, 2003, and concerned the copyrights. SCOG told the IBM court that the Autozone case was filed first in March, 2004, and concerned the copyrights, which it said were not really part of the IBM case. The judge said that the Autozone case should wait for the IBM case.

SCOG said that Novell slandarred SCOGs title to copyrights that Novell had agreed it transferred to SCOG. The judge said that the transfer documents SCOG relied on did not clearly identify the copyrights. Copyright law provides that copyrights cannot by transferred accidently: a document that does not clearly purport to transfer clearly identified copyrights is not a valid transfer of copyrights.

These examples form only a small subset of the lies that SCOG has told and the ways that it has contradicted itself.

[ Reply to This | # ]

BBC report : "Setback for SCO's Linux battle"
Authored by: Anonymous on Thursday, July 22 2004 @ 11:25 AM EDT
The BBC are reporting the DCC result thus : "A key legal case in the claim by US firm SCO to own key parts of Linux has been largely dismissed. On Wednesday a Michigan county court judge threw out almost every claim SCO had made against car maker DaimlerChrysler."

[ Reply to This | # ]

Eyewitness Reports from the DC Hearing - SCO Trounced
Authored by: stephanwolf on Thursday, July 22 2004 @ 11:39 AM EDT
"Don't you love it? Maybe it took so long because they were doubled up on
the floor laughing so hard, they couldn't lick a stamp."

Yoe crack me up. Maybe I should get a life for when this Sco stuff ends but in
the meantime you help make it so much of a pleasure. Rock on!

[ Reply to This | # ]

The legal "mosh" has started to break up
Authored by: cybervegan on Thursday, July 22 2004 @ 03:50 PM EDT
Just like kids at a punk concert, crowd-sufing and diving into each other, the
lawyers (at least on SCOG's side) have been trying to "mix it up" in
the courtroom.

Finally, a judge has stepped in to break up the frakas, and SCOG is left dizzy
and wheezing, as the DC lawyers sidle out of the court grinning.

Well done to our intrepid reporters - it's almost like having been there! (and
I'm the other side of the big pond).

-cybervegan

---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

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