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Transcript of September 15, 2004 Hearing SCO v. IBM |
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Tuesday, September 21 2004 @ 05:59 PM EDT
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Here it is, everyone, the transcript of the marathon September 15 hearing. Enjoy. Note that you have to click on Page Down to get from page one to page two, etc. And you need to save it locally and then open that copy up to read it. If that doesn't work, try this version, which Frank has tried to rework to address the issues. Thank you, Frank. SCO argues that the 10th counterclaim should be dismissed or stayed because it is introducing new issues into an already complicated case. Copyrights only come into this case in connection with IBM continuing to distribute AIX post "termination" by SCO of their license. Ha! responds IBM's Evan Chesler. Let's read their Complaint. What does it say? It says that IBM has been "aiding and abetting, assiting, contributing to the infringement of their copyrights and directly infringing their copyrights." He does have one slip of the tongue, saying that they are accused of putting code into the public domain, but GPL'd code is not in the public domain. I expect he knows that, but just mispoke. I am only mentioning it, so no one gets confused permanently.
He points out that in the AutoZone and Red Hat cases, both having nothing to do with AIX distribution by IBM post "termination", SCO told those courts that the copyright infringement issues were being handled in the IBM case. So, how can they now tell the Utah court that the case has nothing to do with copyright infringement except for post-"termination" distribution of AIX? SCO's executives filled the media with charges of infringement, and IBM respectfully submits that it has the right to clear itself of all those false charges. Besides, the excuse they gave for "terminating" IBM's license was that they had given away SCO's copyrighted code without their consent and giving it to the Linux community. And they now don't want to talk about all that, just narrow the case down to post-"termination" distribution of AIX? To prove his point, Chesler makes reference (on page 20 and 21) to IBM's 2nd Amended Counterclaims, paragraphs 171 and 173, which read like this:
171. IBM does not believe that its activities relating to Linux, including any use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.
173. IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable.
He also refers to SCO's complaint, paragraph 179, which reads like this:
179. IBM's breaches of the IBM Related Agreements and the Sequent Agreements and its post-termination actions have infringed, have induced infringement of, and have contributed to the infringement of, copyright registrations of SCO and its predecessors. Such actions have been willful and have been done with knowledge of the copyright rights of SCO. Then, on page 23, he references SCO's paragraph 113: 113. IBM has violated §2.01 of the Software Agreement by, inter alia, using and assisting others to use the Software Products (including System V source code, derivative works, documentation rrelated thereto and methods based thereon) for external purposes that are different from, and broader than, IBM’s own internal business purposes. By actively supporting, assisting and promoting the transfer of UNIX technology to Linux, and using its access to UNIX technology to accomplish this objective, IBM is (a) using the Software Product for external business purposes, which include use for the benefit of Linus Torvalds, the general Linux community and IBM’s Linux distribution partners, Red Hat, Inc., Novell, Inc., SuSE Linux AG and their respective subsidiaries; and is (b) directly and indirectly preparing unauthorized derivative works based on the Software Products and unauthorized modifications thereto in violation of §2.01 of the Software Agreement. On page 25, he references paragraph 122, which reads like this: 122. IBM has breached its obligation of confidentiality, and has failed to otherwise hold the Software Products in confidence for SCO by contributing portions of the Software Product (including System V source code, modifications, derivative works and methods based thereon, together with documentation and development notes) to open source development of Linux and by using UNIX development methods in making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product. These include, among others, (a) scalability improvements, (b) performance measurement and improvements, (c) serviceability and error logging improvements, (d) NUMA scheduler and other scheduler improvements, (e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File System, (g) enterprise volume management system to other Linux components, (h) clusters and cluster installation, including distributed lock manager and other lock management technologies, (i) threading, (j) general systems management functions, and (k) others. Is that not clear? So exactly who changed their position in this lawsuit? Or tried to. Chesler continues to point out that SCO has yet to answer the two questions IBM asked in their Interrogatories 12 and 13, namely, What is yours that we took, and what did we do with it that causes you to sue us? "We've been asking those two questions for a year," he tells the Judge, and they won't tell us: "What did we take and what did we do with it? Those questions are before this court, and SCO never said, 'Your Honor, the reason we shouldn't be obligated to answer those questions is they are not in the case. You will be expanding the complexity of this case beyond what it already is by asking us to produce that information.' They made many other arguments, but never that one, and none of their arguments were successful. It is their failure to answer those two questions that led to this summary judgment motion on this very counterclaim, which adds nothing new to the case. It's the information we have been chasing all this time. . . . "What they need to do to prove their claim is very simple. It's like every other copyright claim. You take the copyrighted work, which they have, and you match it against the allegedly infringing work, which anybody in the world can download off the internet, and you see if they are sufficiently similar to constitute infringement. . . . They have, and have had all of that information from the time they brought this lawsuit. If they don't have a basis for alleging the infringement, then I would wonder where they got the basis for suing AutoZone for allegedly infringing the copyrights for using Linux. They've got the basis or they don't. We have been asking for it for a year. They won't tell us. This is not about complicating this case, Your Honor. It's about the anywhere-but-here strategy." Then SCO gets to answer, and their attorney, Robert Silver, stands up to talk about AutoZone and Red Hat, and he makes a notable statement: "The AutoZone case was focused on a matter that is very specific to AutoZone. It doesn't have to do with the world of Linux. It has to do with a specific AutoZone problem." Well, well, what do you know? It appears a certain pro-SCO gal reporter got something wrong in "reporting" that doing limited discovery in that case gave Linux end users another potential reason to worry: "AutoZone, the showcase Fortune 500 Linux user that SCO sued for copyright infringement as a warning to other Linux users, has lost an emergency bid to overturn a court order giving SCO the right to limited discovery. . . .The discovery could lead to a [sic] SCO asking the court for a preliminary injunction ordering AutoZone to stop using its Unix code and effectively its Linux systems." Either she got it wrong, which would not be a first, or Mr. Silver told a fib to the judge, and I am sure lawyers are supposed to tell judges the truth, the whole truth, and nothing but the truth. They taught us that in a paralegal class on ethics, and I believed them. So which is it? Is AutoZone about copyrights and Linux and thus applicable to all Linux users? Or is it specific to AutoZone and has "nothing to do with the world of Linux"? It kind of can't be both, can it?
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Authored by: corran__horn on Tuesday, September 21 2004 @ 06:07 PM EDT |
please? [ Reply to This | # ]
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- SCOX set another record - Authored by: Anonymous on Tuesday, September 21 2004 @ 07:17 PM EDT
- Off Topic goes here - Authored by: rand on Tuesday, September 21 2004 @ 07:50 PM EDT
- Red Hot Links? - Authored by: GLJason on Tuesday, September 21 2004 @ 08:11 PM EDT
- Red Hot Links? - Authored by: Anonymous on Tuesday, September 21 2004 @ 08:47 PM EDT
- Red Hot Links? - Authored by: Anonymous on Wednesday, September 22 2004 @ 01:07 AM EDT
- OSRM to offer OpenOffice insurance? - Authored by: Anonymous on Tuesday, September 21 2004 @ 08:47 PM EDT
- AFC: for judge or jury? - Authored by: Khym Chanur on Tuesday, September 21 2004 @ 09:22 PM EDT
- Microsoft server crash nearly causes 800-plane pile-up - Authored by: Anonymous on Wednesday, September 22 2004 @ 12:03 AM EDT
- Upcoming Legal Events - Authored by: Anonymous on Wednesday, September 22 2004 @ 01:43 AM EDT
- Off Topic goes here -Caldera License-OpenLinux eDesktop 2.4 - Authored by: Anonymous on Wednesday, September 22 2004 @ 02:27 AM EDT
- All-your-bases (again) - Stowell: Solaris belongs to SCO - Authored by: Anonymous on Wednesday, September 22 2004 @ 02:51 AM EDT
- Hatch credentials - Authored by: Anonymous on Wednesday, September 22 2004 @ 04:56 AM EDT
- Maureen O'Gara: SCO To Request Unsealing of Most Documents - Authored by: macrorodent on Wednesday, September 22 2004 @ 05:49 AM EDT
- Off Topic goes here - Authored by: Anonymous on Wednesday, September 22 2004 @ 06:36 AM EDT
- Off Topic goes here - Authored by: Anonymous on Wednesday, September 22 2004 @ 06:49 AM EDT
- Are they showing an *actual comparison"? - Authored by: Anonymous on Wednesday, September 22 2004 @ 08:01 AM EDT
- Naivete and the law - Authored by: Anonymous on Wednesday, September 22 2004 @ 11:49 AM EDT
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Authored by: rand on Tuesday, September 21 2004 @ 06:10 PM EDT |
If PJ (or anyone) wants it transcribed to text, that is.
---
Eat a toad for breakfast -- it makes the rest of the day seem so much easier
(Chinese (I'm told) proverb) (IANAL and so forth and so on)[ Reply to This | # ]
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- OCR part 1, pages 1-15 (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:19 PM EDT
- OCR part 2, pages 16-30 (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:22 PM EDT
- OCR part 3, pages 31-45 (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:25 PM EDT
- OCR part 4, pages 46-60 (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:27 PM EDT
- OCR part 5, pages 61-75 (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:30 PM EDT
- OCR part 6, pages 76-90 (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:32 PM EDT
- OCR part 7, pages 91-105 (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:36 PM EDT
- OCR part 8, pages 106- (needs cleaning up) - Authored by: Newsome on Tuesday, September 21 2004 @ 06:39 PM EDT
- OCR part 8, pages 106- (needs cleaning up) - Authored by: PJ on Tuesday, September 21 2004 @ 09:43 PM EDT
- OCR part 8, pages 106- (needs cleaning up) - Authored by: Fourmyle on Tuesday, September 21 2004 @ 10:25 PM EDT
- OCR part 8, pages 106- (needs cleaning up) - Authored by: Maserati on Tuesday, September 21 2004 @ 10:32 PM EDT
- OCR part 8, pages 106- (needs cleaning up) - Authored by: dwmosman on Tuesday, September 21 2004 @ 10:51 PM EDT
- OCR part 8, pages 106- (needs cleaning up) - Authored by: rand on Tuesday, September 21 2004 @ 11:33 PM EDT
- OCR part 8, pages 106- (needs cleaning up) - Authored by: dwmosman on Wednesday, September 22 2004 @ 12:03 AM EDT
- OCR part 8, pages 106- (finished) - Authored by: dwmosman on Wednesday, September 22 2004 @ 01:08 AM EDT
- Ideas for transcribing/proofreading - Authored by: Anonymous on Tuesday, September 21 2004 @ 07:24 PM EDT
- IBM-302-transcript as plain old text - Authored by: Anonymous on Wednesday, September 22 2004 @ 12:01 AM EDT
- Show/hide linenumbers with CSS - Authored by: swn on Wednesday, September 22 2004 @ 09:39 AM EDT
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Authored by: GLJason on Tuesday, September 21 2004 @ 06:16 PM EDT |
How do we figure out who will be doing that? I'd like to help, but I don't want
to waste my time if someone else would be working on the same piece. Can we
call out sections in this thread? When we're done, do we email them in or post
them here in response to our message saying we'll transcript a section? I've
tried figuring out how to do this before with no success...[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 06:20 PM EDT |
Something's not working.
The only thing I'm getting is"....has encountered to problem and needs to
close."
latesigner
[ Reply to This | # ]
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- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Anonymous on Tuesday, September 21 2004 @ 06:22 PM EDT
- A little booklet ! - Authored by: Anonymous on Tuesday, September 21 2004 @ 07:05 PM EDT
- Thanks everyone - Authored by: Anonymous on Tuesday, September 21 2004 @ 07:06 PM EDT
- PROBLEM WITH PDF - WORKAROUND - Authored by: Anonymous on Tuesday, September 21 2004 @ 07:08 PM EDT
- PDF is fine - Authored by: Anonymous on Tuesday, September 21 2004 @ 07:55 PM EDT
- Is it? - Authored by: Anonymous on Wednesday, September 22 2004 @ 12:08 AM EDT
- Linux with xpdf - Authored by: Anonymous on Tuesday, September 21 2004 @ 11:29 PM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Einhverfr on Tuesday, September 21 2004 @ 11:34 PM EDT
- SCO's evidence Hearing SCO v. IBM - Authored by: Anonymous on Wednesday, September 22 2004 @ 10:10 AM EDT
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Authored by: Anonymous on Tuesday, September 21 2004 @ 06:35 PM EDT |
Looking at the dispute between Mr. James and Mr. Silver (pp. 37-38 or so), it
seems like not only is SCO's strategy "anywhere but here", but their
laywer's
strategies are "Any lawyer but me"![ Reply to This | # ]
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Authored by: red floyd on Tuesday, September 21 2004 @ 06:43 PM EDT |
Page 117, line 14. "Red Hot Links". Sounds like a pr0n site!
---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.
[ Reply to This | # ]
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- Red Hot Links! - Authored by: Anonymous on Tuesday, September 21 2004 @ 06:55 PM EDT
- Misspellings, Corrections, etc... - Authored by: Zarbo on Tuesday, September 21 2004 @ 08:17 PM EDT
- Misspellings, Corrections, etc... - Authored by: Bill The Cat on Tuesday, September 21 2004 @ 08:31 PM EDT
- Red Hot Links - Authored by: Anonymous on Tuesday, September 21 2004 @ 11:09 PM EDT
- Misspellings, Corrections, etc... - Authored by: TomWitt on Wednesday, September 22 2004 @ 01:02 AM EDT
- "could stay or severe" (Misspellings, Corrections, etc...) - Authored by: Anonymous on Wednesday, September 22 2004 @ 02:36 AM EDT
- Typo: Page 60, lines 3-4 - Authored by: Anonymous on Wednesday, September 22 2004 @ 03:57 AM EDT
- Misspellings, Corrections, etc... - Authored by: llanitedave on Wednesday, September 22 2004 @ 07:32 PM EDT
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Authored by: inode_buddha on Tuesday, September 21 2004 @ 06:59 PM EDT |
Thanks, Frank. I would *love* to know what program are you using for OCR?
---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 07:06 PM EDT |
I've read all the IBM stuff, and the reports from the court were accurate - they
flow nicely, and it message is clear...
My head is really hurting reading the SCO arguments, because they are all over
the place - and the amount of arse-licking ( excuse the language) is drowning
out the signal.
Hatch is *very* difficult to follow... [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 07:25 PM EDT |
" . . . and that some or all of SCO's purported copyrights in Unix are
invalid and unenforceable."
It seems to me this steps into the breach left by Novell's limited dismissal
motion. This would declare conclusively that SCO has no standing either for
direct copyright claims, or derivatives.
[ Reply to This | # ]
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Authored by: Khym Chanur on Tuesday, September 21 2004 @ 07:45 PM EDT |
Didn't SCO already ask Wells for every itteration of AIX that ever
existed? On pages 70 and 71, Hatch seems to be saying that maybe, just
maybe, Wells would have changed her mind if they could have gotten the
chance to ask her, but those IBM meanies didn't give us the chance to ask.
--- 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) [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 07:48 PM EDT |
I've read the whole thing, I got bogged down in the SCO argument when reading
Hatch - he really is difficult to follow.
SCO have some big credibility problems with consistency of argument. Their view
of how this infringment is a lot clearer, but they dont seem to have any idea
how they will prove what they believe without discovery.
SCO seem to fail badly in trying to counter the arguments from IBM. It's not as
if they came up with bad or weak arguments against the IBM points - they just
didn't seem to bother.
IBM laid out it's case, SCO countered and made some claims about how it believe
that IBM was wrong, and for each claim made by SCO, IBM countered with evidence
to show that they were right. When SCO got to reply, they dodged the evidence
presented by IBM and stuck to their story.
As an example ( to follow on from the IBM habit of presenting evidence ).
Mr. Hatch claimed that the mention by IBM in one of it's recent replies of the
'copyright ownership issue' was a new issue brought before the court - and that
IBM weren't playing fair... IBM in the reply pointed out the first mention of
the issue in one of their early filings.
Whatever your feelings on who was/is right, SCO's legal team really didn't know
what they had said, never mind what IBM had said - Hatch came across as
completely unprepared and seemed to go by the seat of his pants. Frei was a lot
more organised ( and I think it shows ).
The IBM presentation was very well organised ( but also very well researched ) -
items presented were supported with references to the filings - where SCO pulled
in stuff that had just turned up, and talked about 'stuff, and things' but
nothing that really felt like it was undeniable fact.
[ Reply to This | # ]
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Authored by: proto on Tuesday, September 21 2004 @ 08:07 PM EDT |
Page 100, lines 16-22, SCO seems to argue that they didnt do any depositions
because it would be a waste of time if CC10 was stayed or dismissed. Yet at the
same time they argue that CC10 should be stayed or dismissed because they didnt
have time yet to dispose the right people.
Seems to me SCO has the perfect argument ;-). Now if only the judge would fall
for it. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 08:11 PM EDT |
Now they want all of the AIX bug tracking logs?!
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 08:12 PM EDT |
Gotta love the SCO lawyers - they can't even get their stories straight. On page
78, lines 4-6:
"But in response to the request we got a list of 7200 people, and none of
them were identified with contact information, ..."
On page 100, line 11-12:
"They gave us 7200 names. Then they gave us 7200 contact addresses,
..."
Um. What? ;) Unless they just gave 7200 random different contact addresses, that
sure sounds like contact information to me.[ Reply to This | # ]
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- The 7200 lie - Authored by: Nick on Tuesday, September 21 2004 @ 09:24 PM EDT
- The 7200 DEFENSE! - Authored by: kberrien on Tuesday, September 21 2004 @ 09:31 PM EDT
- The 7200 lie - Authored by: Anonymous on Wednesday, September 22 2004 @ 04:25 AM EDT
- The 7200 lie - Authored by: Anonymous on Wednesday, September 22 2004 @ 09:13 AM EDT
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Authored by: Mark_Edwards on Tuesday, September 21 2004 @ 08:13 PM EDT |
Well that was fun to read. Like all the filings we have
seen over the last 18months IBM are as usual very
professional and prepared to state clearly what they have
to say.
Unlike SCO who seem to jump back and forth on the same
topic over and over again (I am guessing at the part where
the court mentions that it didn't fall asleep was the
indication that the court noticed Mr Silver sleeping.. -
Do SCO get a discount for sleep time while in court?).
Anyway it seems to me that the only people that need a
roadmap are SCO's lawyers unless the jumping back and
forth is on purpose to cover-up the fact they have
nothing.
Can't wait for the courts reply on this :) Although from
past experience (IANAL but have been glued here for the
last 18months) I don't expect it to be as good as we would
all like but I see SCO being forced to provide the
mountains/icebergs of evidence or retract all their
statements (Which would be rather funny!!)
Any ideas how long we will have to wait?
Mark.
[ Reply to This | # ]
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- Roadmaps... - Authored by: Anonymous on Tuesday, September 21 2004 @ 09:13 PM EDT
- Roadmaps... - Authored by: Anonymous on Tuesday, September 21 2004 @ 09:43 PM EDT
- Roadmaps... - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:11 AM EDT
- Roadmaps... - Authored by: dcs on Wednesday, September 22 2004 @ 11:52 PM EDT
- Roadmaps... - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:45 AM EDT
- Roadmaps... - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:02 PM EDT
- Roadmaps... - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:13 PM EDT
- Roadmaps... - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:49 AM EDT
- Roadmaps... - Authored by: Anonymous on Wednesday, September 22 2004 @ 08:04 AM EDT
- Demoroniser - Authored by: tgf on Tuesday, September 21 2004 @ 10:48 PM EDT
- Demoroniser - Authored by: Anonymous on Tuesday, September 21 2004 @ 11:04 PM EDT
- Demoroniser - Authored by: Anonymous on Wednesday, September 22 2004 @ 05:15 PM EDT
- Roadmaps... - Authored by: Mike Steele on Wednesday, September 22 2004 @ 04:55 AM EDT
- Roadmaps... - Authored by: GLJason on Wednesday, September 22 2004 @ 12:36 PM EDT
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Authored by: Anonymous on Tuesday, September 21 2004 @ 08:21 PM EDT |
I've found the name for my own distro! *cackle!* [ Reply to This | # ]
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Authored by: proto on Tuesday, September 21 2004 @ 08:22 PM EDT |
Page 121, SCO's disclaimers before Judge Wells come back to hunt them. IBM
argues that the disclaimer doesnt work because UNIX and Linux were in their
possesion at that time. An excellent argument![ Reply to This | # ]
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Authored by: GLJason on Tuesday, September 21 2004 @ 08:34 PM EDT |
SCO was playing very loose with her orders.
First off, she didn't just
"throw up her hands" and pick SCO at random to go first because they had to "get
the ball rolling". See the first
order, which compelled SCO to answer the interrogitories IBM compelled them
to answer.
Defendant/CounterClaim-Plaintiff International Business
Machines Corporation's (IBM's) First and Second Motions to Compel Discovery
having come before this Court, and the Court having read the corresponding
memoranda submitted by both parties, and having heard oral argument on pertinent
matters at a hearing on December 5, 2003, hereby enters the following
Order
The Court, finding good cause shown, GRANTS IBM's First and
Second Motions to Compel Discovery.
...
All other discovery,
including SCO's Motion to Compel is hereby STAYED until this Court determines
that SCO has fully complied with this Order. The Court will hold a hearing on
the foregoing issues January 23, 2004 at 10:00 a.m
Now look at her
March 3rd
Order.
She AGAIN orders SCO to comply with the first order, apparently
meaning she doesn't think they did.
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.
And specifically:
3. SCO is to provide and
identify all specific lines of code from Unix System V from which IBM's
contributions from AIX and Dynix are alleged to be derived.
4. SCO is to
provide and identify with specificity all lines of code in Linux that it claims
rights to.
Then she goes to granting SCO's motion to compel IBM,
but here she spends a lengthy paragraph explaining why she does so. Apparently
she didn't even want to have IBM give AIX to SCO and she didn't think it
was relevant. However, relevance should be construed broadly at the discovery
stage.
Rule 26(b)(1) of the Federal Rules of Civil procedure
states in relevant part: "Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending
action.... The information sought need not be admissible at the trial if the
information sought appears to be reasonably calculated to lead to the discovery
of admissible evidence." Fed. R. Civ. P. 26(b)(1). This rule has been
interpreted broadly by the United States Supreme Court. See Oppenheimer Fund,
Inc. V. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380 (1978). "[A]t the discovery
stage, the concept of revelance should be construed very broadly." Gohler, IRA,
et al. v. Wood et al., 162 F.R.D. 691,695 (D. Utah 1995). However, a court may
limit discovery where "the discovery sought is ... obtainable from some other
source that is more convenient, less burdensome, or less expensive." Fed. R.
Civ. P. 26(b)(2)(i). A Court may also limit discovery if "the burden or expense
of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P.
26(b)(2)(iii).
Based on the Court's decision to lift the discovery stay and
because relevance should be construed broadly at the discovery stage, IBM is
hereby ORDERED:
She also gave SCO a method of requesting more AIX
and Dynix:
1. To provide the releases of AIX and Dynix consisting
of "about 232 products" as was represented by Mr. Marriott at the February 6,
2004 hearing. The releases are to be provided within 45 days of the entry of
this order. Following the production, SCO is to provide additional memoranda
to this Court indicating if and how these files support its position and how
they are relevant. The memorandum is to include with specificity, and to
the extent possible, identification of additional files SCO requests and the
reasons for such requests. The court will then consider ordering IBM to
produce more code from AIX and Dynix. See American Medical Systems, Inc. v.
National Union Fire Ins. Co., 1999 WL 562738, p. 2-3 (ordering a party to first
"procure relevant documents" and then reconsidering the discoverey request for
the production of more documents).
I still have to see the
memoranda where they show if and how the first 232 versions of AIX were
relevant.[ Reply to This | # ]
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Authored by: trs on Tuesday, September 21 2004 @ 08:39 PM EDT |
It seems even SCO's lawyers are obsessed with guns ;)
MR JAMES: "...trying to make this gun work to show some slide"
MR HATCH: "...I'm going to play the gun game, too, if you don't
mind."
MR JAMES: "Your Honor, I fear you turn the gun on me for standing up"
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 08:46 PM EDT |
Frei was great. As mentioned in a prior article I could see where he was coming
from. I also disagreed but at least he was coherent and I could follow what he
was talking about.
The other SCO lawyers were lost. They remind me of my coworkers when you ask
them a question they have no idea what the answer is. They bumbled, they
stumbled, they paused. Incompetence at the minimum.
IBM's statements were very good, very easy to follow, and very direct to the
point. I don't believe IBM left any of the points of contention left standing
at the end of the hearing. And that's putting it politely.[ Reply to This | # ]
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- Frei may be easy to follow, but not coherent at all - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:31 PM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:33 PM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:48 PM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Anonymous on Wednesday, September 22 2004 @ 02:33 AM EDT
- Yeah they were great, but... - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:16 AM EDT
- Frei - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:37 AM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Anonymous on Thursday, September 23 2004 @ 03:03 PM EDT
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Authored by: GLJason on Tuesday, September 21 2004 @ 08:53 PM EDT |
THE COURT: One might conclude, from some statements previously
made, that a lot or these comparisons had already been done before the lawsuit
was even filed.
MR. FREI: I believe that many of those statements referred
to that 1999 report that you were just given, and that was when Linux was half
the size of what it is now.
So the pages full of statements Darl
made about three teams of experts and MIT Mathematicians finding "Mountains" and
"tons" of code, including code copied line-by-line (easily findable with
computer tools) was ALL in reference to the 1999 report done by a team inside
SCO?
Didn't IBM bring up that report to show that SCO did an analysis back
in 1999 and didn't find any infringement? So where could Darl's
statements about finding all that infringement come from? Why would they send
out letters and demand license fees?
I have to hand it to Frei - he got the
judge's eye off that issue pretty quick. He shrugs it off as if the statements
referred to an old 1999 report that showed the opposite of what the statments
say. Then he went on for a while about how much Linux has changed since then
and the people doing the comparison didn't even apply copyright law. Then he
comes up with this case they just found and the judge drops the subject. Sneaky
little punk, no? [ Reply to This | # ]
|
- I'm confused - Darl talking about '99 report? - Authored by: Latesigner on Tuesday, September 21 2004 @ 09:14 PM EDT
- Kernel 2.4 came out in 2001 - Authored by: Anonymous on Tuesday, September 21 2004 @ 09:20 PM EDT
- Check the quotes db - Darl said **more than once** analysis was in March-May 2003 - Authored by: Anonymous on Tuesday, September 21 2004 @ 09:24 PM EDT
- Email was merely to illustrate that comparison was *very* much possible - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:28 PM EDT
- Darl talking about '99 report? - Authored by: AllParadox on Wednesday, September 22 2004 @ 12:38 AM EDT
- I'm confused - Darl talking about '99 report? - Authored by: Anonymous on Wednesday, September 22 2004 @ 06:17 AM EDT
- I'm confused - Darl talking about '99 report? - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:09 AM EDT
- Not TSG - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:46 AM EDT
- TSG - Authored by: coffee17 on Wednesday, September 22 2004 @ 10:56 AM EDT
- I notice that he qualifies it with "I believe..." - Authored by: Anonymous on Wednesday, September 22 2004 @ 10:11 AM EDT
|
Authored by: Anonymous on Tuesday, September 21 2004 @ 08:59 PM EDT |
Yeesh. Who volunteered Hatch for the trial lawyer? Rambling like that just
*can't* be very impressive to the judge.
You know, something that wasn't clearly pointed out by IBM, is that if SCO could
just come up with even a *little* bit of clearly infringing code they could get
this CC dismissed, or at least stayed, and might be able to get IBM's CMVC
database. I mean, they could approach either Judge Wells or Judge Kimball and
say, "See? there *is* at least *some* infringing code! Now, if we could
just get that database we could show even more!" Instead they claim that
they can't find *any* until they get that database.
Not going to happen, guys. You're not allowed to go on fishing expeditions.
*First* you show that some infringing code exists, *then* you ask for more
discovery, *explaining* how that additional discovery will turn up more
infringement.
IANAL and that's clear even to me.
-Ed[ Reply to This | # ]
|
- Ramble on... - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:40 PM EDT
- Well, my impression is Hatch may know the judge on personal basis - Authored by: Anonymous on Tuesday, September 21 2004 @ 10:48 PM EDT
- Troll - Authored by: Anonymous on Tuesday, September 21 2004 @ 11:09 PM EDT
- Why? - Authored by: maco on Wednesday, September 22 2004 @ 02:02 AM EDT
- Why? - Authored by: dopple on Wednesday, September 22 2004 @ 04:20 AM EDT
- Troll - Authored by: Anonymous on Wednesday, September 22 2004 @ 02:04 AM EDT
- Troll - Authored by: moonbroth on Wednesday, September 22 2004 @ 10:28 AM EDT
- Troll - Authored by: Anonymous on Wednesday, September 22 2004 @ 05:20 PM EDT
- Don't you mean... - Authored by: Anonymous on Wednesday, September 22 2004 @ 08:27 PM EDT
- Don't you mean... - Authored by: Anonymous on Wednesday, September 22 2004 @ 08:28 PM EDT
- Hatch, is that you? - Authored by: Anonymous on Wednesday, September 22 2004 @ 12:46 AM EDT
- Well, my impression is Hatch may know the judge on personal basis - Authored by: Anonymous on Wednesday, September 22 2004 @ 01:57 AM EDT
- Well, my impression is Hatch may know the judge on personal basis - Authored by: producer on Wednesday, September 22 2004 @ 08:53 PM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Steve Martin on Tuesday, September 21 2004 @ 11:10 PM EDT
|
Authored by: DebianUser on Tuesday, September 21 2004 @ 09:26 PM EDT |
Is the report posted the other day included in the information given to the
court for PSJ on CC 10?
The IBM lawyer seemed to mention it in passing, and I would have thought it
would have been seriously brought in when the mysterious email and 1999 report
were mentioned. [ Reply to This | # ]
|
|
Authored by: Anonymous on Tuesday, September 21 2004 @ 09:34 PM EDT |
Judge Kimball seems to get all the best lines.
MR.
MARRIOTT: The test is set out in the Tenth Circuit's decision in Gates Rubber,
and as set out in the Gates Rubber decision, Your Honor, before a Court compares
two works -- here Linux and UNIX -- to determine whether there is substantial
similarity, the Court must first filter out --
THE COURT: The
extraction, filtration and comparison test?
MR. MARRIOTT: You've got
it.
THE COURT: I don't know if I've got it. I know how to say
it.
MR. MARRIOTT: You said it, and I think you've got it, Your
Honor.
You've got to love that bit. :-) [ Reply to This | # ]
|
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Authored by: maco on Tuesday, September 21 2004 @ 09:35 PM EDT |
The code thievery discovered by Gupta - and decimated by experts - took 2.5 man
years!! Had I been the judge my eyeballs would have popped out at that -
"Mr Hatch, exactly on what basis SCO bring this suit? No, no, anybody but
Mr Hatch."
SCO's conflicting utterances in many courts were so confusing the IBM attorney
fell over his feet trying to recite them.
Mariott's closing was superb! With the rythm of a sledge hammer - driving that
wooden stake into SCO's lyin' heart.[ Reply to This | # ]
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|
Authored by: CraigMiloRogers on Tuesday, September 21 2004 @ 09:36 PM EDT |
Page 60, lines 2-5:
"The only remaining question is whether Linux, which IBM
indisputably copies, is similar to Linux."
Is this an error in the transcript, or did Mr Marriott actually say this in
court?[ Reply to This | # ]
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|
Authored by: Anonymous on Tuesday, September 21 2004 @ 09:37 PM EDT |
Just read the whole thing. Wow. Quite gripping.
Is the the first time SCO has explained exactly what the planned to do in terms
of deposing programers and how they would use the version control system?
It's the first I've seen of it. We all figured that was the plan, but to see
them say it right out.... "we are going to get these guys to admit that
they "obfuscated" copyrighted code."
Well that leaves no room for the imagination on SCO's strategy, and to this
nonlawyer just raises the question "can they really get away with
that?"
IBM says (1) they don't show they own the code and (2) they don't show what's
been copied.
SCO operates on the principles that (1) we might win a case that shows we own
the code and (2) if you let us do a severe colonoscopy we'll show you how one
thing remains the same thing even if it becomes something completely different.
I don't know. Sure is interesting reading. Now I gotta go give my kids a bath.
I hear them shrieking in the bathtub already.
hmmmmmmmmm[ Reply to This | # ]
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|
Authored by: kberrien on Tuesday, September 21 2004 @ 09:44 PM EDT |
If this goes to trial, I'm going to need a lot more time to read the trail
transcripts. This took a while! My thoughts.
SCO is off guard from the beginning, the emergency filing, and the cancellation
of the prior days hearing. And the "whining" began from the opening!
Wow! When PJ posted that article about shooting their own foot, I didn't
realize how bad. I get the impression SCO wanted to even delay the argument of
these issues, before arguing for more delay!
The most stunning bit is how SCO clearly has NO response to CC10, other than
we're not done fishing. That is bad for SCO. I could just sense the Hatch
babbling on his rebuttal to the first part.
Frei at least made some sense, agree with him or not. Why didn't we hear this
in their motion papers? Why is it SCO doesn't seem cable to get things together
in any coherent order. Their motion papers didn't convey at all their court
arguments, while IBM's clearified theirs.[ Reply to This | # ]
|
- A good read.... - Authored by: Anonymous on Tuesday, September 21 2004 @ 11:57 PM EDT
|
Authored by: Anonymous on Tuesday, September 21 2004 @ 10:21 PM EDT |
Your Honor, I'm confused and I think you might be confused, I wish Mr Marriot
was confused.
We have actually filed two separate filings. We filed one filing, the big long
one that kind of laid out all our silly arguments in a row.
We filed the other one saying we desperately need some discovery assistance
immediately because our first filing was so big we forgot where we put all our
silly arguments.
OR in the alternative
Your Honor, I'm confused and I think you might be confused, I wish Mr Marriot
was confused.
We have actually filed two separate filings. We filed one filing, the big long
one that kind kind of laid out every thing in a row.
We filed the other one, the short fat one where we squashed everything up
tight.
All of this against the background of the incredulity of the Judge that they
somehow expected him (or Judge Wells) to respond to something that they had
filed 2 day earlier.
Mr James must have felt like he had just got off the merry-go-round and was was
waiting for his head to stop spinning.
And the Perry Mason Moment that people mentioned, what a backfire that was.
TSG: Hi judge, look at this piece of paper (that we didn't supply in discovery)
that shows we did compare linux and unix and we did find copied material.
Please, please, please don't anybody notice that it is dated 2 years before the
email saying we didn't find anything.
IBM: Your Honor, I notice the date on this report ..
TSG: Oh oh duh
<understatement> I suspect the Judge is on to them.
</understatement>[ Reply to This | # ]
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|
Authored by: be2weenthelines on Tuesday, September 21 2004 @ 10:27 PM EDT |
OK, so I just started reading this and ... nobody expects the Spanish
Inquisition.
Look at pages 13 and 14. Mr James is speaking for SCO about whether IBM's
counterclaim is compulsory.
"...if you look at the Petro Management case...you will see that four
elements or four factors must be satisfied for res judicata to apply...The facts
at issue must relate in time [ticks off first finger]...Second question. Are
they related in space? [ticks off second finger]...Are the facts related in
origin? [ticks off third finger]...And, finally, are the facts of the case
related in motivation? [ticks off fourth finger]...As to whether the same
evidence supports or refutes the claims, another factor, ..."
AAAAAAAHHHHHHHHH! Bring out the COMFY CHAIR![ Reply to This | # ]
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Authored by: Fourmyle on Tuesday, September 21 2004 @ 10:50 PM EDT |
It's hard to tell from text but
" THE COURT: The jury wouldn't otherwise be confused in this case if the
Tenth Counterclaim were gone, right? " sure reads like the Judge might be a
little miffed at Mr. James and Co.
[ Reply to This | # ]
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|
Authored by: Steve Martin on Tuesday, September 21 2004 @ 10:54 PM EDT |
THE COURT: Well, but he says with respect to
this particular
claim, you claim what you had at the
beginning, and all you have to do is
compare yours to what
everybody can get.
MR. HATCH: Yeah, that's real
nice, and I appreciate him saying that, but, Your Honor --
THE COURT:
He read your client's public statements
about that.
MR. HATCH: Well,
and I'm going to address those in a few
minutes because I think, one, he
mischaracterizes those quite a bit. And, you know, I really view this as
somewhat akin to -- if this were the legal principle going
forward, it would be
really a defendant's bonanza because
what essentially they are saying, at this
stage of the game,
is that you can have enough to go forward and make
your
claims and push forward, but where the claims are such
that, in this instance
IBM -- but say it was a products liability case before the -- a securities case,
it could be
the brokerage house, where the defendant actually controls
a good
portion of the documents and information, it would be
real nice for defendants
to be able to come in at a preliminary stage, after they haven't been given
any
discovery, and say, "Gee, you can't show enough. We are
out of
here."
THE COURT: Well, but UNIX is yours, and Linux
everybody can get
a hold of; isn't that right?
MR. HATCH: Well, no. It's somewhat
disingenuous, Your Honor.
THE COURT: Show me how it's
disingenuous.
Blood on the floor, indeed. (By the way,
when did Brent Hatch start talking like Darl McBride? I completely lost him from
one end of that paragraph to the other.)
--- "When I say something, I
put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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|
Authored by: Anonymous on Tuesday, September 21 2004 @ 10:55 PM EDT |
The most hilarious part is where Hatch says they COULD have had an expert
compare the code, but why waste the effort when CC10 might be dismissed or
stayed. Can you imagine a criminal defendant, "sorry your honor, I didn't
prepare a defense because I thought I might be acquitted anyway, so why waste
money on legal fees"?
Meanwhile, Frei makes a much better case for more
discovery than SCO has made in any memoranda so far, but completely fails to
address the fact that SCO has publicly claimed to have already done comparisons
and found substantial similarity. If Darl had just kept his mouth shut, one
could forgive someone for believing Frei that SCO needed hints about where to
find the infringing code. But then that would beg the question of why they
started the lawsuit in the first place. Judge Kimball will not be fooled.
[ Reply to This | # ]
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|
Authored by: AlanF on Tuesday, September 21 2004 @ 10:56 PM EDT |
A fascinating read! From the beginning, I was struck
by the tone of Judge Kimball's comments. While he was
obviously less-than-thrilled at having to listen to all
this squabbling, he was particularly hard on SCO. I
don't know if this stems from SCO's case, their pleadings,
their oral arguments, or the lawyers' personalities,
but I wouldn't want to be in their shoes. It doesn't
pay to have a judge annoyed at you with five billion
dollars at stake![ Reply to This | # ]
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Authored by: sjf on Tuesday, September 21 2004 @ 10:57 PM EDT |
Notice how Hatch never addresses Mc'Bride's statements. On Page 69 he say he
will address them later, but he never does. Or did I miss something?[ Reply to This | # ]
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Authored by: subdude on Tuesday, September 21 2004 @ 11:00 PM EDT |
Hatch shouldn't be allowed to speak in public - He is awful!
The only person even resembling competancy for SCO was Mr. Frie who made a
plausible argument but I believe a losing argument.
Marriott controlled that courtroom from beginning to end (the Judge excepted, of
course).
His arguments were clear, understandable and supported by numerous references,
exhibits and citations.
Reading Hatch was a burden - he meandered, hesistated, repeated, generalized and
his dialogue was tedious and boring.
I particlularly like how Mr. Marriott would pointedly bring the courts attention
right back to the issues at hand and away from the numerous Wookies SCO tried to
trot through the courtroom.
I cannot begin to judge how the Judge will rule but I sure know who won quality
of presentation award - IBM and Mr. Marriott!
[ Reply to This | # ]
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|
Authored by: Brian S. on Tuesday, September 21 2004 @ 11:08 PM EDT |
Correct me if I am wrong, but this seems to read:
1999 - A report was produced on behalf of (or by) SCOG comparing SysV Unix to
Redhat 5.2 Linux. This report is in the possession of SCOG, IBM and the Court
but is sealed.
1999?? - A memorandum was produced by Mr Unknown1, but he was obviously involved
in the investigation along with Mr Davidson, and sent to Mr Unknown2 (probably
internal to SCOG??). The memo stated there appeared to be no wholescale copying
but there were a few similarities he noticed? He would consult with Mr. Davidson
on whether they constituted
copying? This memo is known to SCOG, IBM and the Court but is sealed. SCOG are
trying to use it as providing examples of copying.
2001/2002?? As the first whiffs of the coming troubles are smelt. Mr Davidson
emails IBM? stating that he, along with at least Mr Unknown1 had carried out the
comparison for SCOG in 1999 and they had found no evidence of copying?
This email is known to SCOG, IBM and the Court but is sealed.
I realise I should not call them SCOG in 1999 but Im trying to keep things clear
in my mind.
Brian S.[ Reply to This | # ]
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|
Authored by: mitphd on Tuesday, September 21 2004 @ 11:12 PM EDT |
Starting on page 100, Frei says:
'IBM states that they agree that
it's thousands of Linux contributors. They say all their contributions are in
on the Internet, all of their names and everything is on the Internet. Well, we
said in our renewed motion to compel, which is pending before the Magistrate,
that's not the case.
What you have on the Internet, oftentimes, are handles
of some of these contributors, like Cool Whiz at yahoo.com. Maybe it's
Yahoo.com in Belgium or something.'
Linux contributors are
generally identified by their right names and their e-mail addresses. Even if
there are contributors only identified by an e-mail address (which could be,
although I'm not aware of it), that address is an unambiguous data point. (If
an address is for Yahoo in Belgium, it will be yahoo.be, not yahoo.com.) In any
case, why is it IBM's job to track these people down? Any IBM contributor will
be obvious from his/her e-mail address, and SCO can ask for full contact
information based on that. Any non-IBM contributor will be as easy for SCO to
find as for IBM.
To intimate that Linux contributors are only identified by
obscure 'handles', and therefore cannot be identified, is yet another bald-faced
SCO lie. How long can SCO keep doing this sort of thing with no consequences?
[ Reply to This | # ]
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Authored by: feysage on Tuesday, September 21 2004 @ 11:18 PM EDT |
Frei on Page 94: "There are such things as automated tools. We have used
them. We have modified them. We found they weren't all that helpful."
Frei on Page 112: "Give us the tools, and I don't care if its 4 billion
lines of code, the tools will help us get to that."
At first blush, SCOG seems to be arguing that doing the Unix/Linux comparisons
as IBM suggests is burdensome and not aided by the used of tools, however, doing
the comparisons of all the AIX versions that it wants from IBM will be made
quite managable by the use of tools. Am I missing something, or is this an
outright self contradiction?[ Reply to This | # ]
|
- Tools? - Authored by: Anonymous on Tuesday, September 21 2004 @ 11:39 PM EDT
- Tools? - Authored by: Anonymous on Wednesday, September 22 2004 @ 12:58 AM EDT
|
Authored by: TimMann on Tuesday, September 21 2004 @ 11:19 PM EDT |
[Mr. James stands up, apparently.]
THE COURT: Mr. James
MR. JAMES:
Your Honor, I fear you turn the gun on me for standing up, and I didn't know
where Aurora, New York was either.
THE COURT: What did you expect me to do
when you stood up? I didn't think you were going out to go to the bathroom. I
thought you were coming up to answer questions.
MR. JAMES: I thought you
might tell me to sit down, candidly, your honor.
THE COURT: Stand up and
tell me about this motion.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, September 21 2004 @ 11:40 PM EDT |
[regarding the "overlap question", whether IBM's counterclaim should
be refused based on overlap with SCO's claim:
James: ...res judicata would Apply if the Tenth Counterclaim is not litigated in
this case, and that's not right. In fact, the significant part of SCO's claim
does not overlap with the Tenth Counterclaim. For res judicata to apply, it's
not enough there is some overlap.
[He's talking about subsequent litigation by IBM regarding third-party
contributions to Linux, that a decision in favor of IBM on the 10th counterclaim
would have effects beyond this trial.]
But he's trying to reject IBM's claim using (from the Petro Management Case) the
"four elements" or factors which must be satisfied in order for res
judicata to apply.
Isn't that something he would want to do later, in some other trial? Res
judicata is something that would be raised in some subsequent trial, referencing
this one to indicate something has already been judged, isn't it? Is that the
STUPIDEST thing I've ever seen a lawyer do? Have I misunderstood something,
here?
Help me, all those lawyers and not one of them makes any sense. Are they trying
to be laughed at?
[ Reply to This | # ]
|
- res judicata - Authored by: Anonymous on Wednesday, September 22 2004 @ 05:59 AM EDT
|
Authored by: tgf on Tuesday, September 21 2004 @ 11:41 PM EDT |
He does have one slip of the tongue, saying that they are accused
of
putting code into the public domain, but GPL'd code is not in
the
public domain. I expect he knows that, but just mispoke. I am
only mentioning
it, so no one gets confused permanently.
PJ,
I know you
have mentioned this before, and I'm not sure if British
and American usage is
different, but in the UK, I think there is a
difference between
Public-Domain and in the public
domain.
I understand
"Public-Domain", as in Public-Domain Software or
a Public-Domain
Song to be one which is either out of
copyright, or has been specifically
bequeathed to the public.
From my Mathematics and Physics background,
however, I understand
"domain" to be "an area" or "a sphere of influence", and
thus if
something is "in the public domain", it is merely accessible
by
the public, without making any determination as to its copyright
status. I
therefore see no problems with Chesler's usage.
To me, GPL'd [source] code
is in the public domain, just as much as
a Harry Potter Book which I can borrow
from my local library or buy
at a bookshop. System V Unix source code and my
private diaries, on
the other hand, are not in the public domain.
Tim
--- Oxymoron of the day:
Microsoft innovation [ Reply to This | # ]
|
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Authored by: Khym Chanur on Tuesday, September 21 2004 @ 11:48 PM EDT |
Why didn't IBM say something like: "The lines of code that IBM contributed to
Linux are a matter of public record. SCO could easily determine what code in
Linux came from IBM, have a human figure out what functionality it has, then
compare that code to the SysV files that implement similar functionality. An
approach like that would be a whole lot more useful than looking at all
itterations of AIX and Dynix" --- 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) [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 12:05 AM EDT |
OK, OK. We've got two pro-SCO gals, thus far. My immediate thought was that it
was Ms. DiDio who PJ was referring to.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 12:06 AM EDT |
What is the AutoZone case about?
SCO has told two different stories:
STORY#1 - It's about general end-user infringements for using Linux
1. Darl McBride said in a conference call. He said the AutoZone case could apply
to *any* Linux user. Infact he said this, when he was asked "Isn't
AutoZone just about OpenServer shared libraries"
2. SCO's complaint against AutoZone talks about Linux, copyright infringement,
but no where mentions OpenServer
3. SCO has apparently told the same story to the press, e.g. Maureen O'Gara
4. SCO has told the Red Hat court, that AutoZone is about the same issues as
IBM's 10th counterclaim
5, **THE BEST ONE** - SCO has told the IBM court, that AutoZone case is about
the same issues as the IBM's 10th counterclaim (see SCO's initial memo seeking
to dismiss or stay IBM's 10th counterclaim)
STORY #2 - AutoZone is about general Linux issues, plus separate issues relating
to OpenServer
6. SCO has told the AutoZone court, this story during the initial hearing on the
AutoZone stay
STORY #3 - AutoZone is only about OpenServer ("narrow issues specific to
AutoZone)
7. **THE BEST ONE** - during the September 15th hearing in IBM, they said
AutoZone's issues are completely different from IBM's issues. Please note, the
contradictory argument (number 5) was not withdrawn by SCO, but was the subject
matter of a separate discussion in the very same hearing.
One might even begin to think, that they are not sure themselves what they are
suing AutoZone for - except maybe to cause trouble to *a* Linux user.
Quatermass
IANAL IMHO etc
[ Reply to This | # ]
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Authored by: belzecue on Wednesday, September 22 2004 @ 12:40 AM EDT |
THE COURT: All right. So respond, then, to both of these motions they have
filed; one last week and one Monday, by a week from today. You will reply to
both of them by a week from Friday. And then I'll do what I do.
"And then I'll do what I do" -- what a deliciously foreboding way to
end the session![ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 01:39 AM EDT |
Reminds me of a Clint Eastwood movie for some resaon ...
IBM - The Good,
TSOG - The Bad,
And no matter how you look at it. For
TSOG it really was Ugly!
Can one get their money back for stuff like this?
I mean, if I bought a car and it was as bad as this.
I'd take the darn thing back, get my money and
take my business else where.
That's it!
That's what TSOG has going here.
Just before the ship goes down,
TSOG will ask for a new trial...
"Your Holyness, We would like a new trial here.
We was robbed. Our lawyers weren't worth a darn.
We are going to loose and it's all their fault.
So if you'd give us another chance.
We could get us some real lawyers, and I know that
we could win then. So what you think you Holyness?"
George
[ Reply to This | # ]
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Authored by: marbux on Wednesday, September 22 2004 @ 01:58 AM EDT |
O.K. Here's my initial reaction to the transcript. It's more difficult to read
the tea leaves when all you've got is a transcript; viewing the action live is
preferable.
There were several indications the judge was leaning IBM's way on the pending
motions. Marriott thought so too, which is why he kept his presentation very
short. When a judge is going in your direction, you get out of the way and let
him do the dirty work for you. The longer you talk, the more likely you'll say
something that will cause the judge to change his mind. Plus, Hatch was
practically wearing a "hit me" sign on his chest. IBM's best argument
was how desperately and obviously Hatch was searching (unsuccessfully) for any
strong argument. So Marriott did the smart thing, hit the points on his outline
very briefly, and sat down as soon as he could do so gracefully.
The judge came across as already having a tentative decision made, but giving
SCO one last chance to change his mind. On paper, it seems ambiguous when the
judge ask Hatch whether the jury would still be confused if the counterclaim was
"gone." That could mean "gone" as in counterclaim dismissed,
or it could mean "gone" as in summary judgment granted. Given some of
the judge's other statements, Hatch's confusion, and Marriott's assessment of
the situation, I strongly suspect the judge meant "gone" as in summary
judgment granted and it was understood that way by both sides' lawyers.
Hatch came across as disorganized and at a loss for words, symptomatic of only
being prepared for the judge to lean SCO's way instead of IBM's. Very clearly,
he wasn't prepared to swim up the waterfall, but should have been given the
parties' relative strength on the briefs. SCO's last minute emergency motion for
a scheduling conference and the fact that Hatch kept drifting into discovery
issues rather than confining himself to summary judgment and Rule 56(f) matters
suggests that he had banked on getting a favorable ruling from Judge Wells on
discovery issues and wasn't prepared to face this hearing without it.
The fact that SCO's lawyers almost totally ignored the merits of the IBM summary
judgment motion stresses just how thoroughly they're relying on Rule 56(f). The
downside of that is they're really naked on the summary judgment issue unless
they win the Rule 56(f) issue. I only recall Hatch talking about a genuine
dispute over a material fact once or twice, and it was so off-hand that he
wasn't convincing. Marriott wasn't so weak. I thought it was astute of him
remind the judge that SCO was no longer claiming that its affidavits were
intended to show a genuine dispute, which is a very big deal, indeed.
"Nothing to stop you from kicking them in the arse as hard as you want to,
your Honor."
Note that the judge was very strictly enforcing an Opening-Reply-Response format
on the order of argument for each motion. Some judge's follow such a format
almost invariably; others never do; some use it only when needed to limit
argument on a motion that could be argued until doomsday. You may also have
noticed the judge encouraging the lawyers to keep their arguments strictly on
point and to keep their arguments succinct.
To me, the message from that judicial behavior is something like, "I've
read everything, I'm ready to start drafting my opinion, and here's your last
chance to talk me out of it."
As a side note, you may have noticed that the judge said he was taking the
motions under advisement except for the emergency motion he set a briefing
schedule for. "Under advisement" in court speak means "don't file
any more papers about these motions. You've had your chance. Leave me alone
about this subject while I write my opinion."[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 02:33 AM EDT |
SCO incorrectly claims that the GPL is not valid. So from where SCO stands they
have indeed accused IBM of putting their code in the public domain. After all if
they stole it and let everyone see it under a license that isn't valid, wouldn't
it be the same as putting it in the public domain?[ Reply to This | # ]
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- No, "seeing" and "using" are two different things - Authored by: Anonymous on Wednesday, September 22 2004 @ 03:36 AM EDT
- NO - Authored by: Anonymous on Wednesday, September 22 2004 @ 04:11 AM EDT
- NO - Authored by: Anonymous on Wednesday, September 22 2004 @ 06:18 AM EDT
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Authored by: darkonc on Wednesday, September 22 2004 @ 02:35 AM EDT |
It just hit me, reading Fantasy vs Fogerty (pointed to by someone else), that -- in the
copyright cases, the courts have discretion to award costs including attorney
fees. This means that, subsequent to an IBM win on CC10, they could apply
for attorneys fees. I expect that success on such an application could easily
eat what's left of SCO's cash reserves.
It would seem that the courts
consider attorney's fees most appropriate where the plaintif's case proved to be
"synthetic, capricious or otherwise unreasonable". I think that that
would apply in this case, don't you?
Even if the court were to only award
'token' attorney's fees (a million dollars or so), I expect that it would send a
strong signal about the unreasonableness of SCO's case. Just ordering an
accounting of costs (without a specific number) would blow a big hole in SCO's
FUD boat. --- Powerful, committed communication. Touching the jewel within
each person and bringing it to life.. [ Reply to This | # ]
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Authored by: jmc on Wednesday, September 22 2004 @ 02:40 AM EDT |
From Frei:
"That is because, in certain situations, it may be more lihely that
protected elements were copied if there is evidence of copying among the
unprotected elements."
Sounds like he's saying that it's more likely that you're the kind of person
who'll do 50 in a 30 zone if you do 50 in a 70 zone?
Huh???
[ Reply to This | # ]
|
- wierd - Authored by: Anonymous on Wednesday, September 22 2004 @ 03:03 AM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: Anonymous on Wednesday, September 22 2004 @ 07:22 AM EDT
- It makes sense in limited circumstances. - Authored by: coffee17 on Wednesday, September 22 2004 @ 12:11 PM EDT
- Maybe this is the reasoning? - Authored by: Maciarc on Wednesday, September 22 2004 @ 01:04 PM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: pooky on Wednesday, September 22 2004 @ 03:18 PM EDT
- Transcript of September 15, 2004 Hearing SCO v. IBM - Authored by: seanlynch on Wednesday, September 22 2004 @ 03:28 PM EDT
- blocks are copied, not lines - Authored by: markhh on Wednesday, September 22 2004 @ 03:37 PM EDT
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Authored by: Anonymous on Wednesday, September 22 2004 @ 02:48 AM EDT |
Would somebody care to explain "pro hac vice"? Google provided a
brief definition (you're not a member of the Bar here, but we'll let you in to
argue anyhow), but I'm interested in more commentary from lawGrokkers.
[ Reply to This | # ]
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Authored by: cadfael on Wednesday, September 22 2004 @ 02:54 AM EDT |
The document, Your Honor, has been marked confidential by SCO and
therefore I'm not at liberty to describe it in great detail, but Your Honor can
read it for himself. I think the document is quite clear that the reason SCO has
not provided evidence responsive to IBM's interrogatories is because, simply
put, it has none.
My guess is the email is from Darl to the
Canopy group saying "Hey, guys, just kidding about the lawsuit. There's nothing
there...hope you don't mind the inconvenience..."
Never before have I wanted
to read someone else's email like I want to read that email RIGHT
NOW.
m0nK
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 02:57 AM EDT |
First from Silver, essentially granted that Redhat vs SCO
issues would be answered by this motion.
Second from Marriot. He said to the judge that for
purposes of this motion assume substantial contributions
to Linux from those who had access to the Unix code.
IBM is very very confident. I don't think the judge
appreciated the last minute stuff from SCO and IBM though.
I would guess that to be common courtroom tactics.
Either IBM wins this one or the judge grants SCO a short
time period for additional memoranda, stating that he
intends to rule on it.
Derek [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 03:07 AM EDT |
SCO is just like some kid who stuck their mouth over a fire hose and turned it
on, then ran crying to mommy about the results.
What on earth did they expect when they sued one of the largest companies on the
planet? That IBM would roll over and play dead?
The SCO lawyers sounded panicked, hurried, desperate, and out of synch, while
the IBM lawyers were crisp, confident, and above all prepared beyond belief.
The SCO arguments ended up looking like the bus from the Clint Eastwood movie
"The Guantlet" as it pulled up to the courthouse after being shot at
by hundreds of police officers.
LOL and put Judge Kimball in the role of Clint as he says to SCO "Nag,
nag, nag, all you ever do is nag...".[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 03:48 AM EDT |
On P22 at 17 the phrae "term of art" comes up.
Could anyone explain what it means?[ Reply to This | # ]
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- "Term of Art" - Authored by: marbux on Wednesday, September 22 2004 @ 04:45 AM EDT
- "Term of Art" - Authored by: Anonymous on Wednesday, September 22 2004 @ 05:48 AM EDT
- "Term of Art" - Authored by: darkonc on Wednesday, September 22 2004 @ 08:26 AM EDT
- "Term of Art" - Authored by: Anonymous on Wednesday, September 22 2004 @ 08:58 AM EDT
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Authored by: Anonymous on Wednesday, September 22 2004 @ 04:38 AM EDT |
I think we've had this dissected here before, but it would be good to address
it again, I think, since it's the core of Mr. Frei's argument, and nobody seems
to have touched on it.
SCO needs a "roadmap" from IBM to help them find
non-literal infringement. We've been saying that you really only need diff-type
tools to find similarities, but they only find byte-for-byte matches, or a few
mutations thereof.
Mr. Frei states, "And the Courts are clear, including
Gates Rubber, that non-literal elements of software are
copyrightable...."
So, if Mr. Frei isn't totally bluffing the court on the
case law behind him (and if he is, why didn't Mr. Marriott call him on it?),
then remind me: Why isn't non-literal copying something that they have a right
to look for?
I think Mr. Marriott and friends did an excellent job of
shooting down all the tin cans that SCO's team had set up on the backyard fence,
except for this one that I'm not quite seeing through.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 05:16 AM EDT |
Not that this should come as any suprise, but here is a quote from Darl McBride
announcing the case against AutoZone in March 3.
"AutoZone is a business enterprise running Linux and is infringing SCO's
copyright. This is a case that is very general to anyone using the Linux
operating system."
[ Reply to This | # ]
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Authored by: r_faith on Wednesday, September 22 2004 @ 06:41 AM EDT |
Page 103:
Frei: ... IBM's motion and Complaint do not limit Linux to the kernel, It's the
whole kit and caboodle, ..., not just the kernel.
So, are they saying they may have a problem with other programs too? Not just
the kernel?
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 07:22 AM EDT |
Note that you have to click on Page Down to get from page one to
page two, etc.
Huh? How is it different to any other PDF? I
just used my PageDown key, as on any other PDF.
And you need
to save it locally and then open that copy up to read it.
Huh?
I just clicked and it launched my default PDF reader.
I expect to hear
this kind of "you need some magic incantation" instructions from Windoze users.
WTF??????
Sorry about the previous incorrectly-submitted post;
removing it would seem appropriate. [ Reply to This | # ]
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Authored by: Artiken on Wednesday, September 22 2004 @ 08:25 AM EDT |
INAL, I'm not a SCO suporter or a Troll.
With that said.....
After reading the transcript understanding SCO's point of view became easier. I
had a little help. I took a sleeping pill and a beer. My brain did that shutdown
thing and all of a sudden SCO's view of the whole case became clear. So here it
is. Not that I agree with their wierd view of what the case is all about. And I
highly doubt that it will win them anything in a Court of Law.
The case is not about trademarks, patents, copyrights or anything that the
GrokLaw comunity has been logicaly trying to attach SCO's arguments with.
<SCOVision>
SCO terminated IBM's lisence because IBM didn't use proper Clean room controls.
SCO aleges that IBM then let the contaminated programmers work on the Linux
project.
Even though the Unix code that was in AIX/Dynix didn't necessarily get copied
literaly or non literaly into Linux the programmers have seen Unix type
programming therefore some of Linux is like Unix.
SCO cannot prove a literal or non-literal copying. But with Discovery they can
prove the contamination.
And posibly copyright violations. (uhhh Methods, structures.... shouldn't that
be patent violations?) That is why CC10 is a bad idea at this time. SCO hasn't
found any violations yet. So the court should wait until after the fishing (opps
discovery) expidition before they consider the CC10 motion.
According to Mr. Fei (copyright guru?) where there are small literal and
non-literal copying found in source code there is a good indication that there
was literal and non-literal copying done, but that copying has since evolved to
look nothing like the original due to program revisions after the original
copying.
It's not really going to take 25,000 man years, silly. That was just example of
what it would take to compaire the code manualy. Which was use to demonstrate
that they really need access to IBM's CVS system. Since software comparitors are
totaly ineffective, SCO needs the 'roadmap' available in the CVS system to
target the specific code that they need. That way it will be much easier to
point, shout and say "see we told you so. neaner neaner neaner!"
</SCOVision>
OK I'm going into total brain fade so I have to wrap this up. I appoligize for
any misspelling. I hope that my sentence structure is understandable. In other
words. I hope what I wrote doesn't hurt as much as reading Mr. Hatch. Which
should explain why I had to drink a beer and take a sleeping pill.
Another observation.
I've heard of Hanging Judges. Are there any Shooting Judges? I would have
thought them to be in Texas not Utah. I guess Mr. McBride has a good reason to
be paranoid. With Judge Wells pointing Guns at the SCO lawyers, McB doesn't
stand a chance. <LOL> This of course being in reference to where Mr. James
makes a comment about "I fear you turn the gun on me for standing up."
(transcript page 123 line 25 - page 124 line2)
Did you notice that the judge didn't interupt Mr. Marriot. Even though Judge
Wells did ask for clarification on one item. He just let Mr. Marriot speak.
On the other hand Mr. Hatch was very repetative, unprepaired and seemed to
ramble. It is pretty obvious that Judge Wells is getting tired of the same,
non-productive, repetative arguments from Mr. Hatch. Advice to Mr. Hatch. When
the brain is in neutral remember to turn down the audio. I'm going to take my
own advice.
Good night
Artiken[ Reply to This | # ]
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Authored by: overshoot on Wednesday, September 22 2004 @ 09:05 AM EDT |
Looks like IBM is dialing up the heat another step.
Page 59, line 12,
Marriott: It's the supposed owner of the copyrights. It can't sit
here and say it needs discovery with respect to whether it owns copyrights that
it sued IBM and AutoZone for infringing and for which it was required, under
Rule 11, to have a good-faith basis for bringing in a claim of copyright
infringement.
(Emphasis added). IBM is tightening the screws
another notch -- up to now they've been pointing out the facts supporting a
violation of Rule 11, but they haven't actually invoked the Rule itself.
My
guess: we'll see more and more of these, if only to dial up the stress level at
BSF and HJD.
[ Reply to This | # ]
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Authored by: Dave on Wednesday, September 22 2004 @ 10:02 AM EDT |
Did any of IBM's interrogatories ask for the details of all code comparisons
made by or for SCO between any and all of Linux, System V, AIX, and Dynix?
Given all of SCO's statements to the press, and all of the squabbling that's
gone on since then about how easy or hard it would be to do various kinds of
comparisons, I think it would be very important to know what SCO has tried so
far. SCO gives the impression that they started this whole thing without any
concrete proof, but I think it would be useful to know, not just what proof they
have, but when and how they got it. It would also be directly relevant to some
of IBM's conterclaims.
So, for each comparison, I would want to know: when was it done, who did it, how
long did it take, what was compared, what was the methodology, and what were the
findings.
Is it to late for IBM to request this information?[ Reply to This | # ]
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Authored by: Paul Shirley on Wednesday, September 22 2004 @ 11:05 AM EDT |
It seems to me that SCOG are trying very hard to imply granting CC10 will
prevent SCOG doing further discovery. The whole roadmap idea looks like the thin
excuse for both failing to provide any evidence so far and making discovery
relevant to the copyright counterclaim.
They scatter references to the real reason for discovery (the contract claims)
just enought to make it look like they're intimately tied to CC10.
Did they really expect the court to swallow that? Win or lose CC10 they will
still get to ask for the same discovery for the contract claims, they just can't
claim its for copyright determination. They're doing this simply to keep the
SCOSource scam alive.
It also strikes me that any claims about 3rd party contributions to Linux are
proveable by exactly the same UNIX/Linux comparison as IBM's contribution. All
that bleating about clearing IBM as a distributer against 3rd party
infringements is going nowhere - the code would have popped up in any comparison
already.
Looks like this will come down to whether the court believes SCOG are lying
about doing code comparisons. And if they're not lying the abuse that implies is
not good news for SCOG.
Nice to see someone finally agree with my long held opinion this is only about
the contracts - even though its SCOG lawyers agreeing! I look forward to the
courts final opinion on all the other claims now SCOG effectively admits them to
be misuse of the court system. Lets just hope IBM brief the court sufficiently
on the scam(s) those claims were meant to support.[ Reply to This | # ]
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Authored by: GLJason on Wednesday, September 22 2004 @ 11:53 AM EDT |
People who use GPLed code without abiding by it's restrictions are infringing
copyright, not the GPL. They don't accept the GPL and yet they use the code
however they see fit. That's blatant copyright infringement.
The only true
way to test the GPL would be for somone that wrote GPL code to come forward and
request that people stop using their code. Then and only then would we have a
true test of whether the GPL was valid and enforceable. [ Reply to This | # ]
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Authored by: sirwired on Wednesday, September 22 2004 @ 12:01 PM EDT |
First off, let me begin by saying that there looks to be pretty much zero direct
UNIX code in Linux, and obviously this direct, line-for-line stuff is probably
baloney...
However, if we suppose that IBM DID make a bunch of changes over time to UNIX,
and put that code into Linux (I'm not saying it actually happened, but bear with
me), to my unleagally trained eyes, that looks like a derivitive work, which is
plainly covered by the AT&T/IBM contract.
Without all the discovery SCO is whining about, how would SCO see if any
IBM/Linux code was derivitive of UNIX code? Am I misunderstanding the concept
of a derivitive work? If a derivitive work is produced by taking an original
work, and modifiying it over time, it may be impossible to spot with a direct
code comparison.
Is that sort of "deriving" covered under copyright law, or is it soley
covered by the AT&T/IBM contract interpretation, and copyright has nothing
to do with it?
SirWired[ Reply to This | # ]
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Authored by: darkonc on Wednesday, September 22 2004 @ 01:03 PM EDT |
On Page 126, Marriot refers to how the road map that SCOX is asking for in terms
of the AIX/DYNIX Revision trees Might as well be a roadmap to China. I
respectfully disagree.
I would suggest that what they're looking for would
be more like a road map to the Pacific. It'll take you to a lot of nowhere, but
mostly they want it for a really big fishing trip. --- Powerful,
committed communication. Touching the jewel within each person and bringing it
to life.. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 01:42 PM EDT |
I am not new here, I have been reading Groklaw since this whole thing
started. I am totally in favor of IBM and wish to see SCO go down in
flames.
That being said, I have a few concerns about these recent
arguments made.
I believe SCO has a very viable point made with their
claims that the 10th CC is permissive. It's just that their council didn't
argue it very well. Now hear me out here because this seems to me to be VERY
important with reguards to basis for going to appeals court.
The 10th CC
by IBM is extremely broad in the sense that it makes Linux infringement
free!
Explaination:
IBM is asking for PSJ on all of
their Linux Activites.
Listen to that...that includes
distrobution...claiming that would claim that every line of code in Linux is
non-infringing. SCO can not let that happen, and I believe their argument is
that if this were to be litigated, it would require a strenuous(sp)
effort.
In other words, they would be required to look beyond IBM's
contributions and look for infringement inside ALL of Linux! Which would in turn
mean, checking for infringment in more than just IBM's contributions, deposing
more than just IBM employees, and basically making the case more complicated
than it already is.
If it wasn't for SCO's lack of competent litigation
team, they would have this PSJ thrown out immediately. IBM seriously needs to
narrow down their counterclaim to their "Linux Code Contributions" rather than
the broad scope of their "Linux Activities."
Correct me if I'm wrong
here...
IANAL...IMHO
-- Sk8 [ Reply to This | # ]
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- Listen to the claim people! - Authored by: moonbroth on Wednesday, September 22 2004 @ 01:53 PM EDT
- Did you read any of Chessler? IBM CC10=flip side of SCO - Authored by: Anonymous on Wednesday, September 22 2004 @ 02:03 PM EDT
- Please, take an introductory logic class - Authored by: Anonymous on Wednesday, September 22 2004 @ 02:28 PM EDT
- Yes, listen to the claim. - Authored by: reuben on Wednesday, September 22 2004 @ 03:23 PM EDT
- Listen to the claim people! - Authored by: Tsu Dho Nimh on Wednesday, September 22 2004 @ 03:47 PM EDT
- Not the case... - Authored by: GLJason on Wednesday, September 22 2004 @ 04:09 PM EDT
- If you're not backinfullforce you're doing a good imitation - Authored by: Anonymous on Wednesday, September 22 2004 @ 05:49 PM EDT
- Even if you were right, you'd be wrong - Authored by: jbb on Wednesday, September 22 2004 @ 09:19 PM EDT
- Even simpler reasoning... - Authored by: Maciarc on Wednesday, September 22 2004 @ 09:40 PM EDT
- IBM admissions = "assume arguendo that IBM wrote all of Linux" - Authored by: k9 on Thursday, September 23 2004 @ 05:04 AM EDT
- Couldn't care less if your right or wrong. - Authored by: Anonymous on Friday, September 24 2004 @ 03:28 AM EDT
- Listen to the claim people! - Authored by: DeepBlue on Friday, September 24 2004 @ 06:42 AM EDT
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Authored by: mhoyes on Wednesday, September 22 2004 @ 03:33 PM EDT |
Reading the transcript, I got to page 95 which stated in about the plot of the
program. I have a question. Isn't what he is talking about the
"ideas" that are not copyrightable? A program is not like a book in
that you can't copyright the concept, just the implementation. Otherwise, Apple
could sue MS, or Lotus 1-2-3 would have won since the "plot" of those
programs were the same. That would also severly restrict any new innovation
since you would have to take the original plot and add on to it.
Am I correct in this thinking or have I missed something?
Thanks,
meh[ Reply to This | # ]
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Authored by: RPN on Wednesday, September 22 2004 @ 04:10 PM EDT |
First I have to admit I haven’t read every single word of the transcript.
Partly because having been around a long time when the SCO starts trotting out
one of its old and tired arguments I really can’t stop my eyes glazing over :)
That said p3 – 6 when scanned did make me go back and read them carefully, then
jump to p126 & 127. p3-6 seem to me an excellent How Not To start your day
in front of any judge. Helps explain why throughout the rest of the hearing
Judge Kimball was leaning on the SCO lawyers when he wasn’t teasing them. There
is a constant thread throughout of ‘don’t repeat yourselves’ and subtle ‘why
not?’ digs that says you are messing with me and I’m getting towards the end of
my tolerance in that. Judges are inclined to take that approach and it seems to
me part of the mark of a good lawyer is learning how to pick up on such cues.
The SCO ones didn’t or paid lip service but note Marriot clearly does. Later on
he states upfront he’s only going to be ten minutes and from the transcript he
was probably comfortably within that in practise. Not only noted it but
signalled to the judge he has.
Marriot, and the other IBM lawyers, are consistently impressive. SCO’s are
fairly pitiful in comparison except Frei and even he must know he’s arguing a
lost cause. He does at least make an effort to argue it with some degree of
professionalism. The rest seem to find it an effort to even bother putting
together a coherent sentence, let alone a coherent argument.
Jump to p126 & 127 and he throws a crumb, but boy is it a small one. He has
read their filings, I’m sure he knows IBM will easily shred them in a week, and
that he knows the SCO reply will be a pile of rubbish however long he gives
them. Which takes us back to the approaching the limits of tolerance again. He
doesn’t want to be seen to be unfair to throw the crumb, keep things appeal
proof but he knows already that no matter what the two replies say won’t affect
his judgement in principle, only the detail of the writing. I rather suspect
that’s true for the motions the hearing was really about as well, or at least
the ones around Counterclaim 10 and I wonder if the assistant wasn’t there
partly in case he chose to make some rulings despite the very late in the day
‘emergency’ (LOL) filings of SCO. I also wonder whether SCO didn’t make those
filings fearing what might well happen if they didn’t to try and drag things out
a little longer.
One more observation on the transcript. SCO in a way made to play the two judges
against each other, or at least make the argument that they were not working in
harmony; to a point disguising that behind scheduling concerns. Kimball allowed
he could overrule Wells but it struck me he showed no inclination to do so and
both expected that move to surface in some fashion in the nature of his response
and the presence of an assistant of Wells.
FWIW I think Kimball will rule against SCO in all but the Counterclaim leaving
that until after the hearing before Wells on October 19th. If that goes as one
suspects it will ruling IBM has delivered sufficient discovery material and SCO
has not that leaves the way wide open for Kimball to rule on Counterclaim 10
without much fear of appeal and I really, really don’t expect that to go against
IBM. If that is so then the whole house of cards starts to fall down and there
won’t be a thing SCO can do about it.
But then IANAL & I am known to get things wrong.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 04:40 PM EDT |
Pondering the whole SCO vs. IBM, with a side of Microsoft, a interesting theory
popped up.
MS's concerned about Linux eroding their market share. This is not the first
time they have been faced with competition. What have they done in the past in
such a situation? Buy the competing company, kill the competing product. Only
this time there is no single "Linux" company to buy.
They can't buy Linux since no one person/company owns it. Even if they bought
all of the Linux vendors, they still wouldn't own Linux. So they need to narrow
down the field. Hmm...maybe induce SCO to file suit, the goal of which is to
establish ownership of Linux. If SCO succeeds, there's only 1 single Linux
vendor, 1 single Linux owner. MS then buys SCO, they then own Linux, and can
either kill it or charge out the wahzoo for it. I'm betting the latter.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 04:57 PM EDT |
On page 15 where SCOG is arguing that cc10 is permissive, he propounds that IBM
makes a little claim that partly overlaps part of SCOG's, then tries to justify
PSJ on the whole because of that little overlap, and argues how that isn't
logical and IBM shouldn't be permitted to do that.
Yet it's the same logic SCOG uses to justify their derivative works theory, that
a little overlap from UNIX to Aix then makes Linux and every other remotely
UNIX-like OS all part of a whole belonging to SCOG.
So IBM shouldn't be permitted to point out infingement claims from SCOG's
documented public accusations and their court filings about infringment, yet
SCOG should be permitted to extrapolate a whole infringement lawsuit without any
proof whatsoever.
Only in SCOGland.
One thing that definitely stands out to me in the transcript is what SCOG
glaringly doesn't say. IBM states early on that the whole issue is what does
SCOG claim rights to, and how have we infringed that. What are we being sued
for?
SCOG fails to address that at all, despite not only IBM asking it directly, but
then the judge making a couple of very pointed hints. I cannot imagine that
Kimball made those hints arbitrarily.
IBM says tell us what we did. SCOG whines about discovery. Kimball points out
that all they needed to do was submit some expert testimony. SCOG whine about
expense of experts. Kimball points out that this should have already been done.
SCOG complains that is disingenuous. Kimball asks how. SCOG splutters and looks
around for their wookie.
I read that as Kimball giving SCOG every chance to provide something, anything,
not only that but hinting at specific things they supposedly should have. He's
almost saying, "look, in case you can't figure out how this is supposed to
work, here's all you need to do to stop this, and it's not that hard". Yet
SCOG comes up empty.
I doubt Kimball ignores that.
[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Wednesday, September 22 2004 @ 05:51 PM EDT |
Is Mr. Marriott related to the hotel Marriotts?
Because of his name is it likely that jurors in Utah will assume he is one of
those Marriotts even if he is not?
Many comments have been made about Mr. Hatch's connections, I wonder about Mr.
Marriott's. We seem to assume he was selected because he was the best availible
lawyer, and he is very good, but is there more to it than that?
I just checked the Cravath Web Site. Looks like I'm on to something.
Here is his information form the Carveth website;
David Marriott was born in Salt Lake City, Utah in 1967. He received a B.A. from
Brigham Young University in 1991 and a J.D. from New York University in 1994,
where he was staff editor of the Journal of International Law and Politics.
Following graduation, David served as law clerk to Hon. Eugene F. Lynch, United
States District Court for the Northern District of California and the following
year served as law clerk to Hon. Albert J. Engel, United States Court of Appeals
for the Sixth Circuit. David joined Cravath in 1996 and was elected a partner in
2002. David is a litigator, and his practice has included advice and major
litigation in the areas of antitrust, securities and intellectual property,
significant arbitration matters, SEC, FTC and state regulatory matters, and a
wide range of commercial litigation.
Education
New York University, J.D.
Brigham Young University, B.A.
I appologize if this is something that has been discussed before, if it was
either I missed it or I forgot.
---
Rsteinmetz
"I could be wrong now, but I don't think so."[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, September 22 2004 @ 06:07 PM EDT |
Well I was going to point out places where Mr. Marriot's argument's were
"weakest" but after rereading his answer to the "roadmap"
analogy, I find I can't. Marriot did an incredible job of tearing even this
analogy apart. When I originally read it I felt he was too soft and hadn't
explained his take on the analogy well enough. On rereading that doesn't seem to
be the case.
The only thing I might say in this regard now that I'm typing away, is that Mr.
Marriot might have driven home the dagger even further by pointing out that if
SCO believes their roadmap analogy than they still had all the roadmap they
needed in the CVS of Linux. If SCO truely believes it is significantly faster to
go through CVS than they should have done that with the CVS of Linux to find the
UNIX infringement. For whatever reason SCO didn't do the
"extraction,filtration, comparison test", the "proper" test
the only test they need to do; they still have no excuse for not performing the
search that they(SCO) believe to be most relevant on the code most relevant.
In the end of course this won't matter either, it just would have been an extra
dig that by 2:00am in the morning I was looking to read.
From this transcript it looks like the beginning of the end for SCO. They may
manage a stay but I don't even think that is likely.
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Authored by: blang on Wednesday, September 22 2004 @ 06:37 PM EDT |
Reading Hatch's argument is torture, even for non-native speakers of English. He
talks worse than I spell. (And I spell terribly, because I routinely get letters
typed with left and right hands out of synch, so the becomes teh, etc.)
Hes sentences are littered with teenager phrases (anno 1970?) : "sort
of", "stuff", "kind of", "well", "you
know", "and then". This baffles me. In this hearing, which is
so important, why would Hatch on purpose irritate the judge? Since on these
points, the burden of evidence falls on SCO, why would counsel spend their small
alottment on time just repeating futile arguments, even after the judge says he
wants to hear things only once.
I am baffled. The most subtantial part of SCO's litigation is on the line, up
for summary judgement, and SCO isn't even trying.
It almost looks to me that the only reason the judge could deny IBM's motion, is
that SCO's pleading was so weak. That is, the judge would be protecting SCOX
from it's own legal counsel's incompetence by staying the motion. On the other
hand his hands could be tied, because:
1)IBM has expert testimony in support, SCO does not.
2)Burden of evidence is on SCO, and SCO has not provided it.
Here is a question: In civil litigation, is there a precedence for having a case
re-tried because of poor representatrion? Or does that apply only in criminal
cases?
Would it be possible to have a ruling Solomon style?
If I was Solomon, I would rule:
IBM's motion is denied.
All discovery is stayed.
SCO has 30 days to provide responses to interrogatory 12 and 13, and in those
responses show material evidence, and if SCO fails to do so, the court will not
only rule in favor of the IBM motion, but also give IBM 30 days to file a motion
for summary judgement on the remainder of the case.
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Authored by: skidrash on Wednesday, September 22 2004 @ 06:45 PM EDT |
by showing Gupta's "findings" that way did SCOG do an end-run aroung
the possibility that Kimball could strike Gupta's declaration(s)?
Or would it be standard practice for a judge to go back and explicitly disregard
Frei's "evidence" if he did indeed strike Gupta?
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Authored by: fudnutz on Thursday, September 23 2004 @ 02:55 AM EDT |
The first motion has been divined and posted as a reply to this introduction.
This is due to complaints as to length.
The remaining motions are in progress and will be posted soon. A link will be
provided under the current articles.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, September 23 2004 @ 04:13 AM EDT |
Go on, explain the mechanism for doing so, other than dying and waiting for the
copyright to expire. All you can do is to license it very liberally. And just
saying "this work is in the public domain" doesn't cut it. What does
that actually *mean*, given that you've still got a copyright on it, and can
perhaps change your mind later?
The GPL, in as much as it ensures that the work *stays* publically available
once released is as close to public domain as we're getting.[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 24 2004 @ 10:22 AM EDT |
It has been mentioned that making sworn statements to two different groups (like
two courts), where both can't be true, is perjury. ISTR that it isn't necessary
to prove which is correct either, only that both can't be true. Or is there
some other standard at play here?[ Reply to This | # ]
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Authored by: Anonymous on Friday, September 24 2004 @ 01:06 PM EDT |
The monkeys at SCO are at it again. Sun should be worried: these are the same
words the liars used before filing against IBM.
This puts Sun in "enemy of my enemy is my friend" mode with IBM. I
suspect there will be little more talk about open sourcing Solaris until IBM
sends the monkeys back to the trees and SCO is gone. This is the clearest sign
yet that SCO and Unix are dead: there is no value left in SCO or their Unix
products, or other proprietary software such as Solaris and Windows. The
tighter SCO squeezes, the more the sand slips between their fingers (along with
money for the liars).
Next step: start threatening Microsoft. Why not, they have turned on their
other friends and customers, like Sun?
The freight train is coming, and IBM has SCO firmly tied to the tracks. It
ain't gonna be pretty. But it looks like Sun will be yet another bystander that
watches with glee as the corpse of SCO goes under the wheels.[ Reply to This | # ]
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