decoration decoration
Stories

GROKLAW
When you want to know more... 		decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook

Donate

Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments

Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO/IBM Hearing September 15
Thursday, July 29 2004 @ 04:19 AM EDT

It looks like the hearing on the motions in SCO v. IBM will be on September 15th at 2PM, according to Pacer -

#209 - Notice of Hearing filed by defendant Intl Bus Mach Inc : Motion hearing set for 2:00 9/15/04 for [144-1] amended motion to Dismiss, set for 2:00 9/15/04 for [144-2] amended motion or to Stay Count Ten of Counterclaim-Pla IBM's Second Amended Counterclaims Against SCO,, set for 2:00 9/15/04 for [152-1] cross motion for partial summary judgment on claim for declaratory judgment of non-infringement To be held before Judge Dale A. Kimball cc:atty ( Ntc generated by: Atty) (blk) [Entry date 07/28/04]

  


SCO/IBM Hearing September 15 | 384 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Links here
Authored by: MathFox on Thursday, July 29 2004 @ 04:36 AM EDT
please...

---
When people start to comment on the form of the message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

  • SCO Moot Court - Authored by: Anonymous on Thursday, July 29 2004 @ 06:57 PM EDT
    • SCO Moot Court - Authored by: Anonymous on Thursday, July 29 2004 @ 09:44 PM EDT
OT here
Authored by: inode_buddha on Thursday, July 29 2004 @ 05:03 AM EDT
Thanks in advance.

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

[ Reply to This | # ]

SCO/IBM Hearing September 15
Authored by: chris_bloke on Thursday, July 29 2004 @ 05:04 AM EDT
What's another month given SCO's current performances..
:-)

[ Reply to This | # ]

SCO/IBM Hearing September 15
Authored by: Pogue Mahone on Thursday, July 29 2004 @ 05:23 AM EDT
Hmm... Battle of Britain day

<churchill>Never in the field of human conflict was so much owed by so many to so few.</churchill>

[ Reply to This | # ]

Fair crack of the whip
Authored by: Anonymous on Thursday, July 29 2004 @ 06:09 AM EDT
A year and a half to start getting some resolution. Unbelievable.

Still, at least it's keeping the SCO lads off the streets, and therefore wallets
unlifted from tourists' pockets, handbags unsnatched from the grasp of elderly
ladies, and sweet candy in the drooling mouths of babes...

[ Reply to This | # ]

SCO/IBM Hearing September 15
Authored by: nobbutl on Thursday, July 29 2004 @ 06:56 AM EDT
There's nothing in the docket text about SCO's motion to compel. Can we draw any
conclusions from that?

[ Reply to This | # ]

SCO/IBM Hearing September 15
Authored by: blacklight on Thursday, July 29 2004 @ 07:12 AM EDT
Looking at this schedule, I'd say that SCOG is burning its cash through
pre-trial litigation like it's fake money: the pace of the IBM pleadings and the
hearings is slowing down but certainly not the frantic activity behind the
scenes - at least for SCOG.

I suspect that SCOG buried a lot of litigation costs into the "costs of
SCOsource licensing" item. With a cloud on its registered copyrights
courtesy of Novell and a partial motion to dismiss courtesy of IBM, SCOG's
"IP licensing" program is an exercise in irrelevance. In that context,
a failure to keep the "costs of SCOsource licensing" item down should
set more than a little red flag to SCOG's patsies - er, "investors":
it should be a little red flag flying under a series of red flares and
fireworks.

[ Reply to This | # ]

Doing the math
Authored by: Anonymous on Thursday, July 29 2004 @ 07:34 AM EDT
If every two weeks the hearing is set back another month, that means that will
have to show their much touted evidence . . .

Never.

[ Reply to This | # ]

Chances for IBM's Counter Claim 10 are LOW
Authored by: sander123 on Thursday, July 29 2004 @ 08:52 AM EDT
I wonder what IBM's chances are that summary judgment be granted, and
if it is that they win it. And I'm guessing those chances are low.

Let me giva an analogy first.
Suppose, for the sake of argument. I find some of my text in a recent
Forsyth novel. I sue him. Next Forsyth asks me to produce a list of all
his potential copyright infraction in his twenty books. A huge task
especially if I myself produce a lot of text too. And should I fail to
do so, Forsyth might claim I forfeit the right to bring those claims.

That would be very strange of course. But something similar is going on
with counterclaim 10.

I mean, SCO comes to IBM with some claim. Let's not get in to the validity
of those claim right now. But for the sake of argument let's assume they
have found a problem, say the ELF interface contains valid copyrights.

Then IBM responds with, we'll talk about your claim later, but first you
give us a list of all the other things we might be guilty of. This being
in multi million lines of Linux versus millions of lines of tens of
products of SCO source. And if you fail, you essentially give up the rights to
any ip you have overlooked

Isn't that unreasonable?

As I said, I don't see the Judge granting this. Although the fact that
it has moved a month later into discovery is to IBM's advantage.


Sander

[ Reply to This | # ]

OT: PSJ Motivation and case management strategies
Authored by: Anonymous on Thursday, July 29 2004 @ 09:01 AM EDT
Someone (Quatermass, I believe) posted, in essence, that motions for summary
judgment are done almost by rote, in that lawyers don't *really* expect them to
go anywhere. From my own experiences, I know that if lawyers don't make that
kind of motion, they could be on the hook for malpractice; especially if it
turns out the motion would have significantly benefited their client.

So I've been wondering about IBM's intent. It seems to me that they may have
been motivated tactically - trying to shake up SCO, keep them back on their
heels and reacting to IBM instead of the other way around. And that's a fine
reason to make the motion.

As events have fallen out, however, it looks like this hearing for PSJ is
rapidly becoming the Whole Ballgame - the strategic, not just tactical, hinge of
the whole case, indeed the hinge of SCOG's entire litigation business.

This leaves me with a whole bunch of question about the whole strategy and
tactics of case management, and I was hoping some of the legal folks would
discuss this further:

Was IBM making a strategic move, or just a tactical one by filing the PSJ?

Would the PSJ actually dispose of issues on the merits? Or are there further
steps to nail things down?

Do you think IBM got caught slightly off-step as the ramifications of their move
emerged? Has IBM agreed to delay the hearings almost 6 weeks so they can get
their ducks in the row, now that they have an opportunity to truly hammer SCO?
If not, why?

Assuming IBM gets the PSJ (which is by no means a given) - what are the best and
worst case outcomes for us?

Curious questions from a YANL (yet another non-lawyer)...

[ Reply to This | # ]

Factors for or against granting PSJ
Authored by: Anonymous on Thursday, July 29 2004 @ 11:08 AM EDT
I posted the 2nd part of this before (apologies for duplication). I know several other people have commented on the Harrop declaration in other places too.

IMHO whether IBM gets their PSJ, likely depends on four things:

(i) Whether SCO did or didn't fully answer IBM interrogatory 12 in response to the court orders. SCO now says (Harrop declaration - see quote below) they didn't. Personally, I believe at the time they said they did, subject to point (ii).

(ii) Whether SCO's limitation on their certification (i.e. they limited it to information in their possession) is likely to be accepted by the court.

(iii) Whether SCO's rule 56f plan can be expected to uncover any evidence relevant to proving a copyright infringement claim by IBM (I'm personally rather doubtful of this)

(iv) Whether IBM's wording is too broad (personally I'm not sure it is, and it's possible Kimball could write a narrower judgement anyway), but I know several smart people have raised this question.

Regarding point (i), I think we need to look at the orders and the Harrop declaration. Under the line is a copy of my earlier comment on it.

I'm interested in commnets on any of these points.

------------

(1) December 12th Order, instructs SCO to:
2. To respond fully and in detail to Interrogatory Nos. 12 and 13 as stated in IBM's Second Set of Interrogatories.

These interrogatories read:
INTERROGATORY No. 12:
Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating system and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

INTERROGATORY NO. 13:
For each line of code and other material identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights .

(2) March 3rd Order, instructs SCO to:
1. To fully comply within 45 days of the entry of this order with the court's previous order dated December 12, 2003. This is to include those items that SCO had difficulty in obtaining prior to the Court's previously ordered deadline of January 12, 2004.

...

4. SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to.

(3) Harrop declaration
22. Further SCO has not purported to have identified in discovery, nor has it certified that it has identified, all of the source code in Linux to which SCO claims any "rights.". Indeed, at the time that IBM propounded its discovery requests, the question of copyrights SCO has in source code in Linux was not at issue in the litigation. At that time, there was no copyright claim in the case at all: SCO had not even brought its narrow copyright claim.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

SCO/IBM Hearing September 15
Authored by: tredman on Thursday, July 29 2004 @ 11:40 AM EDT
Here's a question for the smart masses out there.

If TSG, by some blind stretch of the imagination, provides explicit and exact
proof of pilfered code from SysV within Linux, in response to IBM's
interrogatory, how admissible is it depending on where the information came
from? Would IBM try to invalidate the evidence if it came from one of TSG's
fishing expeditions, or even could they?

I guess my point is, with the millions of lines and mountains of code that SCO
purported to have in public statements prior to these festivities, is it
allowable for them to stall presentation of evidence until after AIX/Dynix
discovery, particularly if that evidence come solely from their discovery?
Lacking proof of wrongdoing before discovery, can it be ruled by IBM that
presentation of such discovery-related evidence is tantamount to illegal search
and seizure?

As I understand it, you can't reach an indictment in a criminal court without
enough evidence to prove that a trial would not be a total and complete waste of
time. Even search warrants prior to a grand jury hearing have to be issued by a
judge after law enforcement has shown some kind of evidence that wrongdoing has
been committed. Shouldn't this same standard be used in a civil case? Is this
a case of the legal system being twisted by an individual entity, or do things
work differently in civil and federal court?

Tim

[ Reply to This | # ]

Totally off topic post regarding 9/11 commission report.
Authored by: Anonymous on Thursday, July 29 2004 @ 12:31 PM EDT

I've just finished reading the 9/11 commission report. This is a compelling, and
sobering read. The quality and clarity of the report is impressive -
particularly in light of the bi-partisan commission that produced it.

I recommend that anyone interested review it, it is well worth the effort.

[ Reply to This | # ]

"every man is innocent until proven broke"
Authored by: geoff lane on Thursday, July 29 2004 @ 05:49 PM EDT
said the lawyer in The Wizard of Id.

(I'm amazed the strip is still going - I first discovered it in a book I bought in Assisi, Italy 35 years ago!)

Anyway, it's pretty obvious that at the current burn rate, TSG will run out of cash before they have to appear in court and face down IBM.

So what is going to happen? Are they going to find a few dollars down the back of the sofa? Or is a mystery backer going to pass over a few bags of unmarked small bills?

---
Ten Truths Of Linux -- http://zoe.mcc.ac.uk/tentruths.html

[ Reply to This | # ]

OT: On September 15th...
Authored by: Tomas on Thursday, July 29 2004 @ 06:37 PM EDT
September 15, 1909

The Imaginary Patent

George Selden is rarely mentioned in accounts of automobile history, often lost
among names like Ford, Daimler, and Cugnot. However, Selden reigned as the
"Father of the Automobile" for almost 20 years, his name engraved on
every car from 1895 until 1911.

He held the patent on the "Road Engine," which was effectively a
patent on the automobile - a claim that went unchallenged for years, despite the
many other inventors who had contributed to the development of the automobile
and the internal combustion engine. Almost all of the early car manufacturers,
unwilling to face the threat of a lawsuit, were forced to buy licenses from
Selden, so almost every car on the road sported a small brass plaque reading
"Manufactured under Selden Patent."

Henry Ford was the only manufacturer willing to challenge Selden in court, and
on this day a New York judge ruled that Ford had indeed infringed on Selden's
patent.

This decision was later overturned when it became plain that Selden had never
intended to actually manufacture his "road engine." Selden's own
"road engine" prototype, built in the hope of strengthening his case,
only managed to stagger along for a few hours before breaking down.

(Lifted from The History Channel)


---
Tom
Engineer (ret.)
"Friends don't let friends use Microsoft."

[ Reply to This | # ]
Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details ) 		Site layout based on Woodlands theme by Bryan Bell.
Groklaw logo by John Crowley.
News Picks logo by Ted Thompson.
Powered By GeekLog
Created this page in 0.06 seconds