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| Partial Summary Judgments - by AllParadox |
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Friday, September 24 2004 @ 04:03 PM EDT
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A Groklaw member, AllParadox, is a retired attorney, so I asked some questions a couple of weeks ago about something he'd written, and in the course of the conversation, it dawned on me that you'd probably be interested in having him explain a few things, like what a partial summary judgment motion is and how it differs from a dismissal, so I asked him to write something for Groklaw. Of course, you know how lawyers are. They always want disclaimers, and even after they stop practicing, that persists. So he agreed, with the disclaimer that he doesn't practice law now, so please don't interpret this as legal advice in any way. He's not your lawyer, in any case, even if he were still practicing, and this is just his personal opinion and intended simply to help us all to understand in more depth what has been going on in a certain courtroom in Utah by giving us a general overview, so we can follow along with comprehension. He says that if you want or need a Real Legal Opinion, please buy one from a licensed attorney in your area.
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PARTIAL SUMMARY JUDGMENTS
~ by AllParadox
What is a partial summary judgment, where did it come from, what is required to get it, and what does it mean if it is or is not granted?
Let us take a moment and distinguish dismissal from summary Judgment. Summary judgment is not dismissal.
Dismissal has always been part of trial procedure. If the allegations in the formal complaint do not collectively cover the requirements of the charge, the case may be dismissed. For example, a plaintiff may sue a defendant for the personal injury (a tort) of battery. A valid claim for battery must include an element of unwanted touching. The plaintiff, somewhere in the complaint, must claim that the defendant somehow struck him. If there is no indication of any kind of contact in the complaint, then the complaint is inadequate. The defendant may ask that it be dismissed. Unfortunately for the defendant, that dismissal may not be, and often is not, "with prejudice". The plaintiff can read up on the law of torts and the tort of battery, fix his complaint, and refile it.
Summary judgment is not about an adequate complaint. Summary judgment is about inadequate *evidence*. Summary judgment motions presume adequate complaints. Summary judgments are final, i.e. "with prejudice". If a party receives a summary judgment against him, his only remedy is to appeal the judgment.
Some History
First, some history. English Common Law descended from three distinct predecessors: the King's Court (Criminal), "factors" (arbitrators) on the London docks (Civil), and the reorganized Chancery Courts of the Roman Catholic Church (Equity).
This case (SCO vs. IBM) is not a criminal case. It may result in a separate criminal case, but that is different. Therefore, Judge Kimball's final judgment may be a mix of Civil (money judgment only) and Equitable (injunction) remedies.
In Britain's American colonies, prior to the American Revolution, cases were decided by judges alone. Things were much more efficient then. Some magistrates were able to handle as many as a dozen death-penalty trials in one afternoon. Not only that, but often, the executed defendants had actually committed the crimes for which they were charged.
With the adoption of the U.S. Constitution plus Bill of Rights, trial by jury became a right in criminal and civil cases, but not equity cases. The rationale for the civil-equity distinction escapes me just now. Unfortunately, it has always escaped me.
The trial by jury was a tremendous change in court procedures. Courts rapidly realized that it was a practical impossibility to train twelve new jurists for any trial, much less every trial, so the fact/law partition arose: the court decided the legal issues, and the jury decided the factual issues. Jurists also followed some pre-existing practices in the State of Virginia. Please keep in mind that the trial judge got "the law" from one or two thin books: a manual of bare statutues, and if he was lucky, perhaps a copy of "Blackstone's commentaries" on the law.
In the early United States, a form of summary judgment was still used in jury trials. At the end of his opponent's case presentation, a party was allowed to move for summary judgment. The issue was not weight of the evidence, or whether or not to believe part or all of a witness's testimony: those decisions strictly belonged to the jury. The issue was whether there was sufficient evidence for a jury to make a conclusion about each element of the case. If no evidence was presented to the jury about a critical element, there was no possible way for the jury to find for the presenter. Thus, a summary judgment was appropriate against the presenter, but not for him, absent very unusual circumstances.
In the mid to late 1800's, Karl Lewellyn, eventually dean of the Harvard Law School, pioneered the uniform use of "precedent". For appellate opinions in prior cases to be of use, they must be collected, printed, and indexed in some rational manner, and Lewellyn did that. Before then, outside of a few U.S. Supreme Court opinions, precedent had little meaning. Afterwards, attorneys had a real possibility of adequately advising their clients about the state of the law.
Near the end of the 1800's, Lewellyn's innovations had severe unintended consequences. It became painfully obvious to appellate courts that trial courts were embarassingly wild and wooly places, far from the moderating influences of appellate judges. The response of the appellate courts was to impose draconian interpretations of the laws and opinions. Anything not letter-perfect or not precisely conforming to the terms of the statutes or the ancient rules was automatically reversed. There were remnants of those judicial habits in the early part of the 20th Century, up until the introduction of new rules.
This period was harsh but necessary. In my opinion, the most valuable result was that legal theorists were forced to directly confront the problems of hoary old judicial procedures. Antiquated, meaningless rules, without practical justification, were the primary tasks of sitting judges. Between 1930 and 1965, the whole structure of judicial procedures was revised. I seriously question whether a lawyer from 1900 could effectively practice in a 1970's courtroom, or a 1970's lawyer could effectively practice in a 1900 courtroom. Many antiquated procedures and requirements were completely eliminated. Much of what remained was modified and broadened, and whole new procedural systems were instituted.
Discovery and the Summary Judgement Process
Part of the new system was a new set of rules called "discovery". To give you some idea of how new this process really is, the deposition portion of discovery has still not been instituted in federal criminal trials. If you, as a federal criminal defendant, file a federal civil suit to try to take advantage of civil (not criminal) discovery tools, the civil suit *will* be stayed until the criminal case is concluded, for the specific purpose of preventing you from doing depositions to discover the merits of the case against you or possible defenses.
Discovery was a solution designed to address an evil. Courts were being severly embarassed by trials. Lawyers in the old days described it as "trial by ambush". As a party, you had almost no idea what the opponent was planning. Other than a formal complaint or answer, it was all a guess, and not that educated a guess, either. Completely meritless complaints wound up in jury trials. Wholly meritless defenses showed up as well. A judge and a meritorious plaintiff would be publicly humiliated by scoundrels willing to say or do anything for a defendant. A defendant might not hear the really criticial evidence and arguments against him until the end of the plaintiff's reply argument in closing. Sadly, this still happens in federal criminal trials. The emergence of broadly distributed cheap newspapers and modest trial coverage exposed the real legal mess in civil procedures.
"Discovery" emerged, then, in the mid-1900s, and a modified summary judgment was part of the solution. In the old days, the concept of a "summary judgment" prior to the trial was absurd. No evidence had been introduced. There was nothing upon which to base such a judgment.
With the advent of discovery, pre-trial summary judgment, even in the land of the jury, now made sense.
Discovery is a process. The tools are "requests for admissions", "requests for production of documents", interrogatories, and depositions. Discovery is far from perfect, and the process is in continual revision. Still, with all the problems, discovery adds a great deal of fairness to the process, and in my opinion, the value far outweighs the cost.
At the end of the discovery process, the parties should have a clear idea about their available evidence. At the end of discovery, it is now fair to allow one party to demand the other party show what he has.
With that goal in mind, an adequate response to a motion for summary judgment merely presents *enough* evidence. For each element of the claim, enough evidence must be presented to carry the burden of proof. Affidavits are frequently used. Responses to interrogatories, transcripts of depositions, and admissions in response to pleadings are other sources of adequate proof (provided that they actually address the point). Sometimes, a single sentence in a document may satisfy several elements of a claim simultaneously. In theory, if a party submits satisfactory evidence to overcome a motion for summary judgment, then the party has enough evidence to establish a prima facie case at trial. In other words, if the opponent sleeps through the trial, there is probably enough evidence for the first party to win (only "probably" because the jury is still free to disbelieve any or all of the plaintiff's witnesses)
A summary judgment is really that, a judgment on the merits of the claim. On the other hand, a denial of a motion for summary judgment proves almost nothing. An affidavit from some homeless wino may be adequate to establish a fact *for the purpose of a summary judgment*. That a jury composed of real people would probably never believe his story is irrelevant to the question of adequacy.
On the other hand, such a motion is serious, with real potential consequences, and parties must treat it that way. Almost always, parties submit barely enough to prove up a fact and move on. An adequate, bare, fact usually will not receive "embroidery", as it would during a jury trial, but at least it will be presented. If a defending party fails to provide adequate proof of even one element of his claims, then the ruling goes against him. The judgment also goes against him, and it is final, with prejudice. He may not refile it somewhere else. Appeals are allowed from granted adverse summary judgments.
IBM's Motion for Partial Summary Judgment on IBM's Counterclaim 10
With this burden of history, let us return to SCO vs. IBM and revisit IBM's Motion for Partial Summary Judgment on IBM's Counterclaim 10 (CC10). For this analysis, I assume that CC10 has not been dismissed as inadequate, or for being unacceptably prejudicial, or for any other reason, and that the motion is not being heard too early.
More than a year and a half since the initial filing, IBM has filed a Motion for Partial Summary Judgment on their CC10, as they are allowed to do, pursuant to Fed.R.Civ.Proc. 56.
IBM has been filing motions for partial summary judgment piecemeal. This is probably because, first, it is allowed, second, SCO vs. IBM is a large, complex case, and, third, this appears to be the only possible way to get the The SCO Group attorneys to address specific issues. The goal of lawsuits is to resolve real issues. Judges routinely refuse to hear cases with no real issues, e.g. "how many angels can dance on the head of a pin?". Resolving meritless claims before the jury trial encourages settlement, reduces waste of court time, and reduces chance of prejudicial error caused by extraneous evidence.
Let us take a moment and recall the context of CC10. The SCO Group, through its president, Darl McBride, and other agents, has claimed that IBM has "stolen" copyrighted material from UnixSysV. Furthermore, they broadcast to the world that literally "mountains of code" have been apparently freely given away by IBM, being distributed as part of the Linux OS.
This is a justiciable issue: whether IBM wrongfully distributed The SCO Group's copyrighted material into Linux. The issue comes up, IBM states, as a compulsory counterclaim (Fed.R.Civ.Proc. 13). IBM has to raise it as a declaratory judgment issue, because if they do not, they will not be able to raise it anywhere else later. According to IBM, the facts of this copyright issue are so closely related to TSG's contract claims that it would be unreasonable to try the issues separately. CC10 also closely tracks paragraph 179 of The SCO Group's complaint. A separate motion by SCO to dismiss CC10 as being not required by Rule 13 is also under consideration by Judge Kimball.
In the declaratory judgment action, SCO has the same burden as if they themselves had filed a copyright infringement claim with the wording of CC10.
To win the Motion for Partial Summary Judgment, SCO must make a "prima facie" presentation on every element of a copyright infringement claim. Very little is required, but it is still something.
With our brief history of Rule 56, and even more concise legal analysis in place, let's outline the things that SCO must show to win on this motion, with some examples to make the generalities more clear. Again, if SCO wins this motion, their only reward is the right to have a jury hear the evidence and make the final decision about whether IBM has infringed SCO's copyrights by giving away Linux code.
I found a Ninth Circuit model jury instruction that probably adequately describes the elements. Please note that Judge Kimball is not required to follow Ninth Circuit rules, because he is in the Tenth Circuit. My reliance on the jury instruction is reinforced by the IBM opening memo on CC10. On pages 25 and 26 of that memo, they also say that SCO must prove ownership of the copyrights and prove that there was copying.
According to Ninth Circuit Model Civil Jury Instruction 20.4, the elements are:
1.The plaintiff is the owner of a valid copyright, and
2.the defendant copied original elements from the copyrighted work.
The process for SCO is in reverse order from the instruction.
SCO must first identify infringing works, being "original elements" of earlier works, that IBM has contributed to Linux. SCO must then prove that they are the owners (or agents for the proper owner) of the valid copyright. Because this is about IBM distributions of Linux, it covers much more than SCO code claims under the various contracts. It also covers any other contributors to Linux that IBM is *redistributing*. Those redistributions, if infringing, are every bit as much copyright infringments as if IBM directly copied original elements of UnixSysV into Dynix, and from there into Linux.
The reason that this broad demand is fair is because SCO has already announced to the world through numerous broadcasts and press releases that they have identified "millions" of lines, "mountains" of stolen code, and that there is no question about the source. Again: it was SCO that made the wild claims. This is the fight that they publicly demanded, and a fight they loudly announced they were prepared for. It was SCO, in paragraph 179 of their complaint, that formally insisted that this broad copyright infringement was an injury perpetrated by IBM. SCO has never publicly retracted these claims.
"Original element" is a term-of-art, with a special, specific meaning. It is a term used in copyright law. It means the portion (or "element") of the protected work that was created (thus original) by the author.
This is SCO's first hurdle, and they have not cleared it. Original elements must be identified with specificity. In requests 12 and 13, IBM asked SCO to identify all infringing code. SCO has been twice ordered to identify all infringing code, with specificity. SCO has still not done so.
The infringing code would be the "original elements".
SCO must then connect the infringing code "original elements" to an identifiable work or works. For SCO, I infer that this is UnixSysV. Given the breadth of CC10, it could be anything.
It is not enough to make the connection, however. SCO must also prove that the element in UnixSysV is an "original element", and not brought into UnixSysV from some other source, e.g. a text by Donald Knuth. For example, there are apparently sections of code in UnixSysV that carry copyrights from parties other than SCO that are not parties to this suit: Sun, The Regents of the University of California, AT&T, Novell, and USL, to name a few. These sections would clearly not be "original elements" created by SCO.
Finally, SCO must prove the first element for the claim. They must prove that they are the owners or agents for the owners of the valid copyrights on the "original elements".
When a pre-trial motion for partial summary judgment is heard, we have the advantage of hindsight. Everything must already be in the record. Depositions, affidavits from witnesses, copies of documents like contracts, all must have been filed in some manner in the Court File. By now, the Court File is a monster, and a misnomer. It must already consist of several very thick volumes of filings.
It is not enough for SCO to merely claim that SCO owns the UnixSysV copyrights. Even by SCO's peculiar logic, they themselves did not create the "original elements". SCO claims to be the successors-in-interest to the original authors. Therefore, to get by the motion, SCO must submit some proof, any proof, however flimsy, that they are the proper successors-in-interest of the original authors. A simple affidavit of personal knowledge would be powerfully adequate for motion purposes. "I, John Doe, wrote the code attached to this affidavit, while employed by AT&T, and by my employment contract, this code belonged to AT&T when written." This, coupled with the documents that created USL from AT&T, the transfer documents from USL to Novell, the Novell-SCO APA, and the creation-transfer documents renaming "Caldera" to "The SCO Group" would mostly satisfy the requirements. (I say mostly. Even ignoring the dispute about the terms of the APA, the APA still clearly says that it is not assignable by oldSCO, so the assignment from oldSCO to newSCO should not be valid.)
SCO has not submitted so much as a trace of anything like the above that we have seen. On this element alone, SCO should lose, not because their evidence is not credible enough, but because there is *no* evidence.
SCO has not identified any "original elements" in Linux. On this point alone, SCO could lose, not because their evidence is not credible enough, but because there is *no* evidence.
SCO has not effectively tied "original element" code in Linux to any part of UnixSysV. Sandeep Gupta's and Chris Sontag's affidavits were an attempt in this direction, but were, in my opinion, severely lacking in necessary detail. The affidavits were also soundly criticized for lack of proper Gates-type procedure by Dr. Davis. On this point alone, SCO could lose, and in my opinion should lose, not because their evidence is not credible enough, but because there is *no* evidence.
Lastly, a caution: there are a number of documents that have been filed that have been sealed. The documents are part of the Court File, but are not available to the public. These documents may satisfy the above requirements. I don't think there is a snowball's chance of that, but stranger things have happened. SCO did not necessarily have to file the documents; they could be IBM filings. Neither SCO nor IBM necessarily had to reference the documents in their motions or supporting briefs for Kimball to use them in deciding on adequacy in either direction. Judge Kimball is allowed to be persuaded that, although there is not quite enough evidence for a SCO prima facie case, it would be fair to allow a jury trial on the issue anyway. Absent very unusual circumstances, it is not error to deny a motion for summary judgment on any grounds.
Usual Boilerplate: These things are hard to write. For every specific assertion about the law that I have made above, I know of, or could create, an exception. If you have similar issues, please do the wise thing and protect yourself by getting an opinion from a practicing professional. Then, even if the attorney is wrong, their malpractice insurance is available.
AllParadox is a retired attorney who practiced law for fifteen years, primarily as a trial lawyer in the areas of criminal law, bankruptcy, civil lawsuits, and divorce. The author is also a practicing programmer and developer with years of experience in development of major systems.
This work is licensed under a Creative Commons License, noncommercial-attribution 2.0.
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| Authored by: jbeadle on Friday, September 24 2004 @ 04:17 PM EDT |
Thanks,
-jb
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| Authored by: jbeadle on Friday, September 24 2004 @ 04:20 PM EDT |
Thanks much, Allparadox, for the insight. As usual, your comments are very
clear and concise.
-jb
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- Excellent!! - Authored by: Anonymous on Friday, September 24 2004 @ 04:39 PM EDT
- Bravo - Authored by: TonyW on Friday, September 24 2004 @ 05:05 PM EDT
- A Nice Read ! - Authored by: TheElf on Friday, September 24 2004 @ 05:19 PM EDT
- Excellent!! - Authored by: Anonymous on Friday, September 24 2004 @ 05:21 PM EDT
- Outstanding - Authored by: Anonymous on Friday, September 24 2004 @ 06:10 PM EDT
- Thank you indeed! - Authored by: jfw25 on Friday, September 24 2004 @ 07:42 PM EDT
- Thank you indeed! - Authored by: Anonymous on Friday, September 24 2004 @ 11:32 PM EDT
- Thank You! - Authored by: ofermod on Friday, September 24 2004 @ 08:09 PM EDT
- Excellent!! - Authored by: AntiFUD on Friday, September 24 2004 @ 09:29 PM EDT
- Excellent!! - Authored by: MyPersonalOpinio on Friday, September 24 2004 @ 09:41 PM EDT
- Thanks to AllParadox and PJ: this was meaty and delicious. More please! (nm) - Authored by: Anonymous on Saturday, September 25 2004 @ 12:13 AM EDT
- Thank you all for your kind comments. (eom) - Authored by: AllParadox on Monday, September 27 2004 @ 08:57 AM EDT
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| Authored by: Anonymous on Friday, September 24 2004 @ 04:24 PM EDT |
I'll accept that Juries were not commonly appointed in the colonies, because you
say it and I have no reason to doubt it.
However, I find it hard to believe that the Americans then independently
invented pretty much an identical jury system to that already in use in Britain,
which seems to be how you portray it.[ Reply to This | # ]
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- Pre-American Revolution Jury Trials in England - Authored by: AllParadox on Friday, September 24 2004 @ 04:36 PM EDT
- Pre-American Revolution Jury Trials in England - Authored by: Wol on Friday, September 24 2004 @ 04:52 PM EDT
- Pre-American Revolution Jury Trials in England - Authored by: cc0028 on Friday, September 24 2004 @ 04:54 PM EDT
- Sorry AllParadox, we all know that... - Authored by: Groklaw Lurker on Friday, September 24 2004 @ 05:05 PM EDT
- Pre-American Revolution Jury Trials in England - Authored by: Anonymous on Friday, September 24 2004 @ 05:12 PM EDT
- Pre-American Revolution Jury Trials in England - Authored by: Anonymous on Friday, September 24 2004 @ 05:22 PM EDT
- A few facts about origins of rights to jury trial in England and US - Authored by: Anonymous on Friday, September 24 2004 @ 07:41 PM EDT
- Pre-American Revolution Jury Trials in England - Authored by: Anonymous on Friday, September 24 2004 @ 08:38 PM EDT
- ..Norse Jury Trials in America? ;-) - Authored by: Anonymous on Friday, September 24 2004 @ 08:43 PM EDT
- Pre-American Revolution Jury Trials in England - Authored by: PM on Saturday, September 25 2004 @ 12:31 AM EDT
- Partial Summary Judgments - by AllParadox - Authored by: Anonymous on Friday, September 24 2004 @ 05:05 PM EDT
- It's not that simple. - Authored by: Anonymous on Friday, September 24 2004 @ 08:50 PM EDT
- UK Juries - Authored by: Anonymous on Sunday, September 26 2004 @ 05:39 PM EDT
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| Authored by: Groklaw Lurker on Friday, September 24 2004 @ 04:27 PM EDT |
Your explanation is clear, concise and sufficiently detailed to clarify several
lingering questions I've been entertaining recently.
Thanks for the article!
GL
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| Authored by: Scorpio on Friday, September 24 2004 @ 04:36 PM EDT |
Thanks, All Paradox, for the education. I found it most helpful in
understanding the current situation. I also was intrigued by the point you made
that SCO's copyright (if they have one) is not easily passed to them.[ Reply to This | # ]
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| Authored by: finman on Friday, September 24 2004 @ 04:44 PM EDT |
Typo here:
Appeals are allowed from granted adverse summary judgments.
---
"Remember, no matter where you go, there you are." Pigkiller, Mad Max Beyond
Thunderdome[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 24 2004 @ 05:02 PM EDT |
Excellent discussion. It really cleared the smoke away.
Thanks!
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| Authored by: Groklaw Lurker on Friday, September 24 2004 @ 05:19 PM EDT |
I wonder if the that last slump in SCOX just before market close today was
caused by investor perusal of AllParadox's fascinating treatise on Summary
Judgement. If I were an investor, it would certainly make me think twice or
thrice about holding onto SCOX shares...
GL
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- Hmmm, I wonder. - Authored by: Anonymous on Friday, September 24 2004 @ 06:37 PM EDT
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| Authored by: Anonymous on Friday, September 24 2004 @ 05:20 PM EDT |
Following this case has actually made me think twice about law. If I can ever
retire, I'd think of going to law school just for the brain stimulation. After
you get past the initial misconceptions, law really does have a logical flow
similar to programming & engineering. This primer is just what I was
looking for, thank you all so much.
Being the "knowledge slut" that I am, I've got a bunch more questions
though.
1) Why can IBM counter-claim based upon SCO's public announcements? Doesn't SCO
only have to show proof for what their (ever shifting) "official"
legal claims are? Can these public announcements really be tied to their legal
complaint?
2) What is the law regarding "public announcements" vs. actual claims
in court? I.e. when does making a public pronouncement but not a legal
complaint allow the defendant to seek adjudication of the public pronouncement?
3) Can SCO somehow get off from having to show any code by retracting their
statements publicly? I.e. Darl goes to CNET and proclaims that he was wrong,
this whole thing was just a sham and there's really no infringing code. It was
all just a smokescreen put together by Baystar, BG and the other MS guys. How
far can SCO back-off from their public claims?
4) Would doing so be prima-faca evidence of Landham act violation? (I think
that's the act, "unbased public statements by company A to destroy business
of company B?" )
5) If Landham act violation by SCO, how far could IBM go in seeking monetary
reparations? Could they go to RBC and Baystar if they knew it was a sham?
Could they go after any investor who knew the charges were false?
6) Under what circumstances could the board of SCO and it's officers be held for
criminal charges?
Thanks again, inquiring minds want to know.
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| Authored by: mossc on Friday, September 24 2004 @ 05:56 PM EDT |
Excellent informative article. Makes me sorry AllParadox is no longer
practicing law.
One question:
"This, coupled with the documents that created USL from AT&T, the
transfer documents from USL to Novell, the Novell-SCO APA, and the
creation-transfer documents renaming "Caldera" to "The SCO
Group" would mostly satisfy the requirements."
Wouldn't they also need the OLD SCO to Caldera transfer documents?
So far as I know they have yet to "find" those. Could be they were
conveniently lost if they did not support TSGs current claims.....
I searched around for SCO -> Caldera press releases and did not find anything
talking about system V copyright transfers. Tarantella has been conspicuosly
silent in this whole process. Any of those folks deposed yet?
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| Authored by: whoever57 on Friday, September 24 2004 @ 05:59 PM EDT |
In my experience, the words: "yes" and "no" are missing from
most lawyers' vocabularies. These words are replaced with "maybe",
"perhaps" and similar. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 24 2004 @ 06:06 PM EDT |
The civil courts (courts of law) enforced the law of the king and were bound to
follow precendent (common law). A court of law could only enforce monetary
judgement against a defendent.
A court of equity (chancery court) evolved from the the High Court of Chancery
originally run by the King's Lord Chancellor. Unlike the law courts the Lord
Chancellor had jurisdiction to determine cases according to equity or fairness
and was *not* bound by precendent. In addition a court of equity could enforce
particular injuctions other than monetary damages. Corperate law, trust law,
wills and probate, marriage, divorce, adoption and guardianship are matters for
a court of equity rather than one of law.
These two court systems were merged in Great Britian in the Judicature Acts
1873-1875. Most of the US legal system (all the federal courts and most of the
state courts) followed suit soon after. Curiously Delaware has maintained this
distinction. This is important because most of the coperations in the US are
registered in Delaware and this state hears the majority of corperate law
disputes.
There is one additional point of note. Trial by jury is *not* guarenteed in a
court of equity - even in the US.
--
MadScientist
PS
Loved the article by AllParadox [ Reply to This | # ]
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| Authored by: cf on Friday, September 24 2004 @ 06:21 PM EDT |
Discovery was a solution designed to address an evil. Courts were
being severly embarassed by trials. Lawyers in the old days described it as
"trial by ambush". As a party, you had almost no idea what the opponent was
planning.
We may be seeing in SCO vs. IBM the discovery pendulum
at the opposite extent of it's swing. Here, rather than abusing the legal
process by ambushing your opponent with surprise evidence, we see indication of
SCO attempting to put IBM in "legal limbo" - under investigation of serious
legal misdeeds - but unable to either clear their name or be convicted as
charged in any reasonable time frame due to abuse of the discovery
process.
There needs to be some limits to discovery to prevent this kind
of abuse. In large organizations, you will always be able to find an employee
willing to say bad things if you dig hard enough. If nothing more than some
theory of wrong-doing plausible enough to fool a few journalists is adequate to
get into court, and if discovery can be used to endlessly drag out proceedings,
there will be no shortage of people adopting this tacktic.
Heise may
believe he discovered the legal Holy Grail in the Microsoft vs. DRDOS battle.
It may be that IBM's PSJs may be enough to defuse that particular bomb. We'll
know eventually, but in many ways the damage has already been done.
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| Authored by: Anonymous on Friday, September 24 2004 @ 06:29 PM EDT |
I would be very surprised if American law schools taught this vaguely insulting
historical narrative, so I assume the writer of this article must have forgotten
what he was taught.
Jury trial most certainly did not originate in the American Bill of Rights. It
takes its origin from the Magna Carta in the 12th Century and the right to trial
by peers. Something akin to the present jury system, in which juries determined
matters of fact, was well established by the end of the 14th Century, but it
goes back considerably further than that, as the Magna Carta itself suggests -
the Magna Carta was a defence against royal power by the baronial class, by
claiming to state existing principle, not establishing new principle: but in the
earlier times, juries were as much accusers as triers. For a time there were
two juries, one which accused on the indictment, the Grand Jury, and one which
tried the indictment, the Petit Jury). I think, but do not know, that something
similar still exists in some of the states in the US.
Juries in civil trials have in the last few centuries gone out of favour in
England, Wales and Scotland (Scotland incidentally has a separate legal system)
because of their unpredictability. In civil actions, they can now only be
demanded as of right in defamation trials. However, all serious cases in
criminal law either have to be or at the election of the accused can be referred
to Jury trial (the Crown Court) rather than dealt with summarily in the
Magistrates Court. Recent Governments have from time to time, in the name of
efficiency, tried to narrow the cases which count as "serious",
although this is resisted by those who value their freedoms, which thankfully
includes the judicial establishment.
On some side issues, but for the sake of historical accuracy, the court of Kings
Bench was a civil court and not a criminal court. The Court of Chancery (which
adminstered "equity") derived from the functions of the Lord
Chancellor, who before the Reformation was conventionally a cleric, but he/it
most certainly did not administer (even before the Reformation, which occurred
in the 16th century) the law of the Roman Catholic Church. Even by the time of
Edward III (1312 - 1377) this had passed to the Court of Chancery.
Ecclesistical law was, and in the Church of England still is, separately
administered in the Ecclesiastical Courts, which are now an interesting
anacronism (they try on the one hand things like whether disputed alterations to
the structure or ornaments of a church should be permitted to take place, and on
the other hand things such as whether priests who have/are having illicit sexual
relations or misbehaved in some other way should be "defrocked" in
consequence). They can be good tabloid newspaper stuff.
[ Reply to This | # ]
|
- Grand Juries - Authored by: UncleJosh on Friday, September 24 2004 @ 07:02 PM EDT
- Partial Summary Judgments - by AllParadox - Authored by: J.F. on Friday, September 24 2004 @ 07:14 PM EDT
- maybe you are right, but .... - Authored by: ccs on Friday, September 24 2004 @ 07:58 PM EDT
- maybe you are right, but .... - Authored by: Anonymous on Friday, September 24 2004 @ 08:08 PM EDT
- Well - Authored by: billyskank on Monday, September 27 2004 @ 08:30 AM EDT
- maybe you are right, but .... - Authored by: J.F. on Friday, September 24 2004 @ 09:08 PM EDT
- maybe you are right, but .... - Authored by: Anonymous on Friday, September 24 2004 @ 09:14 PM EDT
- maybe you are right, but ....I'm not sure "we have the oldest democracy in the world." - Authored by: Ed L. on Saturday, September 25 2004 @ 12:55 AM EDT
- Democracy? - Authored by: archonix on Saturday, September 25 2004 @ 08:45 AM EDT
- Democracy? - Authored by: eskild on Saturday, September 25 2004 @ 10:11 AM EDT
- Democracy? - Authored by: archonix on Saturday, September 25 2004 @ 02:18 PM EDT
- Democracy? - Authored by: ccs on Saturday, September 25 2004 @ 03:27 PM EDT
- Democracy? - Authored by: Anonymous on Sunday, September 26 2004 @ 01:43 AM EDT
- Huh - Authored by: Anonymous on Sunday, September 26 2004 @ 04:53 PM EDT
- Huh - Authored by: Anonymous on Monday, September 27 2004 @ 03:25 AM EDT
- Democracy? - Authored by: Anonymous on Sunday, September 26 2004 @ 02:16 AM EDT
- Democracy? - Authored by: Anonymous on Sunday, September 26 2004 @ 02:35 AM EDT
- maybe you are right, but .... - Authored by: ccs on Saturday, September 25 2004 @ 01:03 PM EDT
- maybe you are right, but .... - Authored by: llanitedave on Friday, September 24 2004 @ 10:53 PM EDT
- maybe you are right, but .... - Authored by: AllParadox on Saturday, September 25 2004 @ 12:06 AM EDT
- maybe you are right, but .... - Authored by: Anonymous on Saturday, September 25 2004 @ 09:47 AM EDT
- Partial Summary Judgments - by AllParadox - Authored by: Anonymous on Friday, September 24 2004 @ 09:29 PM EDT
- Grand Juries and Petit Juries - Authored by: AllParadox on Friday, September 24 2004 @ 11:53 PM EDT
- Trial by jury in England and the U.S. - Authored by: marbux on Saturday, September 25 2004 @ 04:33 AM EDT
- Come now, don't be shy! - Authored by: billyskank on Monday, September 27 2004 @ 08:33 AM EDT
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| Authored by: Anonymous on Friday, September 24 2004 @ 06:35 PM EDT |
How does a dismissal with prejudice differ, in its practical effect, from an
adverse summary judgement?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 24 2004 @ 06:41 PM EDT |
A New Orleans lawyer I know once told me that Louisiana law is not decended
from English Common Law like most of the states, but rather french law. She
further told me that the french law the Louisianna law is decended from is
much simpler than english common law, and was designed to be light weight
for travel to far away places. If anybody knows any more, please inform. As
it stands, this comment is pretty much an urban legend ("someone once told
me . . .").[ Reply to This | # ]
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| Authored by: AdamBaker on Friday, September 24 2004 @ 06:43 PM EDT |
"the APA still clearly says that it is not assignable by oldSCO, so the
assignment from oldSCO to newSCO should not be valid"
I've always assumed this meant that the purchase agreement itself was not
assignable, not that the assets weren't. TSG therefore would own whatever assets
oldSCO transferred to them but couldn't sue Novell over any breaches of the
agreement such as failing to hand over a copyright if one were required.
Is this just my non lawyer brain trying desperately to find a meaning that makes
sense when none exists or could that be the intended meaning?[ Reply to This | # ]
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| Authored by: kberrien on Friday, September 24 2004 @ 07:06 PM EDT |
If AllParadox is answering posts, I have an off topic question. A retired
lawyer does not fit the bill of computer professional or entusiast. Perhaps he
practiced in the IP, or Computer industry.
Just like PJ, AllParadox seems to be a Groklaw reader who is outside the
industry. Its great to hear, it's what will bring alternate OS's into the light
of mainstream use.
My personal lawyer (handling my will presently) said she loves the field of IP
law. I suggested she follow this case (she had heard of it) and read Groklaw,
perhaps she did.
I'm curious how AllParadox became a Groklaw reader, or other readers who are
non-computer types - and how/why they have become Groklaw readers, and usually
(I hope not all - gotta have balance) big Linux advocates.
Thanks! Good weekend to all.[ Reply to This | # ]
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- Why do you Groklaw? - Authored by: drakede on Friday, September 24 2004 @ 08:21 PM EDT
- Why do you Groklaw? - Authored by: Anonymous on Friday, September 24 2004 @ 09:51 PM EDT
- Why do you Groklaw? - Authored by: turbopro on Friday, September 24 2004 @ 10:23 PM EDT
- Why do you Groklaw? - Authored by: llanitedave on Friday, September 24 2004 @ 11:06 PM EDT
- OT: Why do you Groklaw? - Authored by: AllParadox on Friday, September 24 2004 @ 11:25 PM EDT
- Why do you Groklaw? - Authored by: NemesisNL on Saturday, September 25 2004 @ 02:47 AM EDT
- Why do you Groklaw? - Authored by: Anonymous on Saturday, September 25 2004 @ 03:28 AM EDT
- Why do you Groklaw? - Authored by: marbux on Saturday, September 25 2004 @ 08:34 AM EDT
- Why do you Groklaw? - Authored by: RPN on Saturday, September 25 2004 @ 09:39 AM EDT
- Why do you Groklaw? - Authored by: archonix on Saturday, September 25 2004 @ 02:37 PM EDT
- Why do I Groklaw? - Authored by: Ed L. on Saturday, September 25 2004 @ 08:16 PM EDT
- Why do you Groklaw? - Authored by: tangomike on Saturday, September 25 2004 @ 10:40 PM EDT
| |
| Authored by: cf on Friday, September 24 2004 @ 07:07 PM EDT |
The emergence of broadly distributed cheap newspapers and modest
trial coverage exposed the real legal mess in civil
procedures.
And as All-Paradox points out, the solution was
discovery. Ironically, it may be the availability of and low barrirers to self
publishing on the internet - and it's huge readership base, that will expose
problems brought about by abuse of discovery.
SCO's strong-arming of
business to pony-up for their use of Linux might have made enough headway to
give creedance to SCOs theories were it not for emergence of widely-available
internet resources that looked more critically at the issue than mainstream
publications have done. How many mainstream publications made available court
documents, or highlighted contradictory quotes? SCO's chances at continued
rounds of discovery may have benefited if their story was legitimized by scads
of licensees.
Fortunately, FUD cannot stand up to light for long. The
greater the number of eyeballs, the faster FUD dies.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 24 2004 @ 07:09 PM EDT |
I'm just picturing how far I'd get if I delivered code and said "But it
probably doesn't work, and I have no idea what I'm talking about. My pants are
full of jello."[ Reply to This | # ]
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| Authored by: nola on Friday, September 24 2004 @ 07:18 PM EDT |
I have been puzzled for a while, and have commented before, about IBM's
apparent lack of interest in the chain-of-ownership issue with regard to
the copyrights. IBM certainly hasn't [as far as I've noticed] contested or
specifically challenged the purported ownership, but neither has it
conceded it.
A possible reason now becomes clear. IBM did not want to challenge it
until motions for PSJ were done. It made sure that the question was
before the Court, but only subtly.
Right near the end of the 15 Sept hearings,Judge Kimball asked about the
ownership issue...
===
THE COURT: What about the issue raised, I think it was by Mr. Hatch,
about you didn't raise the ownership of the copyright until your reply?
===
Mr Marriott's response is wonderful ...
===
MR. MARRIOTT: That, Your Honor, is incorrect. If you look at page 25 and
26 of IBM's opening memorandum, we say, "To prevail on a claim of
copyright infringement, SCO must prove, one, ownership, two, copying.
If SCO cannot adduce evidence sufficient to show both ownership and
valid copyright copying of protected components of the work that are
original, then IBM is entitled to summary judgment and a declaration of
non-infringement."
What we said in our footnote, Your Honor, is that the Court need not
decide the ownership question in order to rule for IBM. There are two
essential elements of the claim. If they don't satisfy either one of them,
they lose. And the footnote says the Court need not address the question
of ownership because it need not. If it finds that there is insufficient
evidence of substantial similarity, they lose, unless Your Honor makes a
finding that additional discovery, and time is required.
The ownership issue was clearly raised, Your Honor, in our opening
papers, and I think our reply is consistent with that.
===
So, the question is before the Court and SCO has produced no evidence
to support its claim to ownership. And that, as I understand it [IANAL], is
mandatory. By not pounding the table about it, IBM allowed SCO to
become complacent and not even try to bluster its way through.[ Reply to This | # ]
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- chain of ownership - Authored by: Anonymous on Friday, September 24 2004 @ 07:31 PM EDT
- I completely agree. - Authored by: Anonymous on Friday, September 24 2004 @ 08:31 PM EDT
- I completely agree. - Authored by: Anonymous on Friday, September 24 2004 @ 09:05 PM EDT
- IBM distro... - Authored by: kberrien on Friday, September 24 2004 @ 09:12 PM EDT
- IBM distro... - Authored by: Christian on Friday, September 24 2004 @ 09:31 PM EDT
- IBM distro... - Authored by: J.F. on Friday, September 24 2004 @ 09:32 PM EDT
- IBM distro... - Authored by: Anonymous on Friday, September 24 2004 @ 09:47 PM EDT
- IBM distro... - Authored by: Anonymous on Friday, September 24 2004 @ 10:22 PM EDT
- IBM distro... - Authored by: Anonymous on Friday, September 24 2004 @ 11:52 PM EDT
- IBM distro... - Authored by: Anonymous on Friday, September 24 2004 @ 11:53 PM EDT
- IBM distro... - Authored by: Liquor A. on Saturday, September 25 2004 @ 12:05 AM EDT
- IBM Distributing Linux - Authored by: markus on Friday, September 24 2004 @ 09:34 PM EDT
- IBM Linux Distro - Authored by: AllParadox on Friday, September 24 2004 @ 10:55 PM EDT
- Blue Linux - Authored by: Anonymous on Saturday, September 25 2004 @ 01:03 AM EDT
- "Copy" - Authored by: Anonymous on Saturday, September 25 2004 @ 02:09 AM EDT
- chain of ownership - Authored by: nola on Friday, September 24 2004 @ 10:05 PM EDT
- chain of ownership - Authored by: marbux on Saturday, September 25 2004 @ 05:14 AM EDT
- chain of ownership - Authored by: eskild on Saturday, September 25 2004 @ 11:08 AM EDT
- Asked in the interrogatories - Authored by: Anonymous on Friday, September 24 2004 @ 07:38 PM EDT
- Copyright ownership and Novell - Authored by: Thomas Frayne on Friday, September 24 2004 @ 08:31 PM EDT
- Winning on a technicality - Authored by: Khym Chanur on Friday, September 24 2004 @ 11:44 PM EDT
- A masterpiece of equivocation - Authored by: codswallop on Sunday, September 26 2004 @ 03:59 AM EDT
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| Authored by: Thomas Frayne on Friday, September 24 2004 @ 08:05 PM EDT |
I have had several months experience reading about summary judgments, so I can't
compare with AllParadox. However, I still think that the amount of evidence
required to defeat a summary judgment is more than he implies.
From the descriptions I read in the briefings, I had the impression that, to
defeat the CC10 PSJ, SCOG had to present enough admissible evidence to convince
Judge Kimball that a reasonable jury could decide that IBM's Linux activities
infringed SCOG's copyrights on the basis of that evidence, the undisputed facts,
and the facts whose evidence is so one-sided that any reasonable jury would have
to decide in one direction.
SCOG might also convince Kimball that, though they did not have enough evidence
to defeat the PSJ now, they had presented enough to justify an opportunity to
discover and present more, or even enough to cause enough doubt for Kimball to
wait until October 19 to decide.
At some point, Kimball will decide that he has enough information to rule on the
preliminary issues:
a. Whether SCOG has shown that IBM's discovery malfeasance is likely to have
hidden evidence that would defeat the PSJ.
b. Whether SCOG has shown that additional discovery is likely to produce
admissible evidence that would defeat the PSJ.
c. Whether SCOG has justified presenting additional evidence that it now has.
d. Whether SCOG must go with the evidence now in the court record.
e. Whether SCOG's dismiss motion should be granted.
f. Whether SCOG's 56(f) motion should be granted.
g. Whether the evidence now in the court record is sufficient to defeat the
PSJ.
A ruling on the PSJ would follow immediately.
My guess is that he will make all these rulings in favor of IBM. When? My
guess is some time in October, 2004.
[ Reply to This | # ]
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| Authored by: icebarron on Friday, September 24 2004 @ 08:15 PM EDT |
Thank you sir for taking the time and effort to help us all understand. Your
very deserving of the respect you have earned. I like your style, keep up the
good work and God bless to you and PJ...
Dan[ Reply to This | # ]
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| Authored by: ccs on Friday, September 24 2004 @ 08:36 PM EDT |
From AllParadox:
Because this is about IBM distributions of Linux,
it covers much more than SCO code claims under the various contracts. It also
covers any other contributors to Linux that IBM is *redistributing*. Those
redistributions, if infringing, are every bit as much copyright infringments as
if IBM directly copied original elements of UnixSysV into Dynix, and from there
into Linux.
Is this really true?
(not doubting you
AllParadox)
It's just that if this is so i just grasped the complete meaning
of the PSJ, and i am awed.
These last weeks i was asking myself if this
was really important for SCO. I thought that if they lost against IBM they could
sue other companies or developers for their Linux contributions. And i was sure
they would, for FUDs sake.
(Btw: for me it was the answer to Mr. Silver
sleeping at the hearing.)
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 24 2004 @ 08:41 PM EDT |
| Good article :). [ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 24 2004 @ 08:42 PM EDT |
Could SCO ask for a stay on the 10CC until ownership is decided in the NOVEL
case?[ Reply to This | # ]
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| Authored by: Gerry on Friday, September 24 2004 @ 08:47 PM EDT |
IBM does not create and maintain a "distribution", but it does
distribute third party "distributions" installed on its hardware.
They act as a total integrator rather than selling hardware and telling the
customer to go buy linux somewhere[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 24 2004 @ 09:01 PM EDT |
| A major conservative group has come out in opposition to the Induce Act.
link [ Reply to This | # ]
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| Authored by: ansible on Friday, September 24 2004 @ 10:11 PM EDT |
Neither SCO nor IBM necessarily had to reference the documents in
their motions or supporting briefs for Kimball to use them in deciding on
adequacy in either direction.
I am sure what you say is true.
However, wouldn't it be crazy or at least incompetent
for SCOX not to
refer to such documents if it was key to defeating the
partial summary judgement
on CC10?
It's not that SCOX hasn't done some numbskull lawyering previously
in this case.
But you'd think that with something this serious, they would work
a little
harder. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 25 2004 @ 12:50 AM EDT |
| First, many thanks to all_paradox for an excellent article.
I hesitate to
post this because I fear any criticism of the U.S. system will seem to many like
a troll. However, as a non lawyer, I am very uncomfortable with the appearance
that massive injustice is sometimes visited on litigants in the purported
pursuit of justice.
The major concern that I have is that, even when the
evidence is strongly one-sided, litigation is extremely time consuming and
immensely costly for both sides. A secondary concern is that it often seems
that winning in American legal proceedings is a matter of having the better
legal representation, not the superior case in the abstract.
Surely, a
situation where the RIAA can bully ordinary citizens into an out of court
settlement of thousands of dollars (even when the accused may be innocent) in
order to avoid certain ruin through litigation is not in the interests of
justice.
Who here is aware of the case of 19-year old Jesse Jordan? He was
sued by RIAA for producing a search facility on his campus that some used to
find music files. His program did nothing that could not be done with the
Microsoft Explorer Search facility, just did it more conveniently. Could he
theoretically have won in court? I am convinced that he could. Fighting it
would have meant leaving college and probably ending up bankrupt even if he won.
So he agreed to pay his entire life savings of US$12,000. In return RIAA
agreed that he could deny having done anything wrong. Is that justice? For
details, you can refer to an ABC News report or Slashdot article
Are there any solutions to such
abuses? There are two that I think might be worthy of consideration. The first
is a grand jury type process for civil claims. If the case, from the outset,
seems too weak, the action should just not be permitted. This would have
prevented the SCOG FUD campaign from ever getting properly underway. IMHO, it
would probably also have saved Jesse Jordan $12,000 as the RIAA would not
have had a credible threat to force a settlement. My second suggestion is that
a no interest loan should be available to individuals and small organizations
that can show good reason that they could prevail defending a claim brought
against them. If they lost, this would need to be repaid (without interest).
If they won, the principal plus some percentage would be repayable out of the
proceeds of the litigation. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 25 2004 @ 01:51 AM EDT |
Date for SCO to respond to Novell's 2nd motion to dismiss, pushed back again
until 1 October
Quick reminder:
35 (Novell motion to dismiss) - Date 6 August 2004
+40 (memo in support)
42 (First stipulation to extend time) - Date 23 August 2004 - Extend time to 7
September 2004 (2 weeks)
46 (Second stopulation to extend time) - Date 7 September 2004 - Extend time to
24 September 2004 (2 weeks)
48 (Third stipulation to exnted time) - Date 24 September 2004 - Extend time to
1 October 2004 (1 week)
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: marbux on Saturday, September 25 2004 @ 06:57 AM EDT |
Very nice discussion, AllParadox. I learned more than a few things by reading
it. It's a shame that Legal History is an elective in law school rather than a
required subject.
I do disagree about the origin of Trial by Jury; juries were definitely used in
the pre-Revolution Colonies. I've made another post summarizing some of my
research on that subject.
[ Reply to This | # ]
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| Authored by: rao on Saturday, September 25 2004 @ 11:08 AM EDT |
A while back I had asked about the fact that SCO
has never mentioned a
specific copyright that the
IBM has violated. It seemed like this would be
a
necessary first step in defending against the PSJ
of CC10. I think I may have
an explanation for
this now.
In order to specify a copyright they
would have to
present the APA and its amendments as their
evidence that they own
this copyright. If I'm not
mistaken this judge is the same one that has
already
stated (in the Novell case) that these
documents are not clear about
transferring the
copyrights. SCOX could lose not only the PSJ on
CC10 but also
any claim to copyrights at all. I'm
sure even SCOX sees this as inevitable but
the
later it happens the better for them.
[ Reply to This | # ]
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| Authored by: SilverWave on Saturday, September 25 2004 @ 11:57 AM EDT |
|
Thanks for the article it clarified a lot of issues - as well as being
entertaining and educational – That Groklaw for u.!
OT - Who was
that guy who could "Prove Mathematically that evolution was wrong" ?
Was
is just me or did any one else hear the "Twilight Zone" music start up in the
background?
Quick rule of thumb:
"Does not believe in
evolution"=Believe in UFO's! ;-P
Heh, Heh.. ---
Linux used
ideas from MINIX
MINIX|UNIX
UNIX|MULTICS
MULTICS|CTSS
CTSS|FMS
In science, all work is based on what came before it.
Andy Tanenbaum, 6June04 [ Reply to This | # ]
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| Authored by: swkl on Monday, September 27 2004 @ 04:25 AM EDT |
Your friend, AllParadox, uses the
An affidavit from some homeless
wino
That casts serios doubts on AllParadox competency away from
camp fires and bars, in which circumstances some degree of tolerance may be in
order -- but not in a posting on your otherwise admirable groklaw.
Stephan
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, September 27 2004 @ 02:04 PM EDT |
Doesn't discovery amount to a small slavery? Lawyers and judges get to tell
other people to work for them without compensation.
Before you say, well, mostly it's OK, well, let's take a look at the mechanics
of this trial. There is a great deal of evidence that SCO's strategy was to
give IBM a choice between buying SCO or paying even more money on litigation.
IBM made the right choice, but does anybody doubt that they are spending more on
litigation than they would have to buy SCO? And why? Well, mostly because of
discovery. What percentage of the lawyers' hours are spent answering obviously
ridiculous discovery questions? How many hours did it take IBM to figure out
all the names of everybody who'd had access to System V code, not to mention
SCO's other silly requests that the judge nonetheless granted because of what
the judge thinks of as fairness.
Never mind all the zillions of man-hours that that "fairness" will
cost. This is the fairness of the slave owner telling a visitor that of course
the visitor will have a servant for his needs, or of the Englishman deciding
that of course the coolie should work without sleep tonight because the mistress
tore her gown and wants to wear it again tomorrow. Where is the difference from
those cases?
Let's go back to the big picture again. Something's just plain broken if a
company can be forced to spend tens of $millions to defend against a claim so
baseless just because a pirate decided to attack. That's just wrong. And why is
it possible? IANAL, but it seems to me externally that it's discovery that
takes the most time and energy.
What would've happened if SCO had gone against, say, a startup distro company
(like Red Hat in its early days). What d'you think would've happened to that
company, even though SCO has no case?
Another example of discovery out of control is, of course, the Starr
investigation. It was discovery that basically brought the head office of
government to a halt against the wishes of the American people. All Presidents
have to deal with meritless cases, brought by political opponents, that
nonetheless involve discovery phases, raising the bar high for White Houses to
get things done.
For that matter, what percentage of our tax dollars are spent by people
answering discovery requests, or even overbroad FOIA requests? Public access to
gov't documents is a good thing, but an evil has been perpetuated by the fact
that FOIA was modelled on discovery. E.g., not only can you get government
documents (good), but you, personally, can make many bureacrats work long and
hard for you to answer your FOIA request (bad).
So, if you are a lawyer, and think discovery is good, ask yourself, is it about
the power? Are better court cases really worth this little slavery?
[ Reply to This | # ]
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