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SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike - as text
Saturday, September 25 2004 @ 06:40 AM EDT

Here's the Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike. Thanks go to sfohey for transcribing, doing the HTML and proofreading for us. If you wish to review that motion, you can. This came up in the September 15 hearing [transcript], and SCO's position was that they were not offering this as evidence of copyright infringement, just in support of their 56(f) motion asking for more discovery. They so don't want this case to be about copyright.

Here is what SCO attorney Frederick Frei said about this document:

"Mr. Harrop's declaration -- I'm thinking maybe now they backed off from trying to strike that because they didn't mention it. Mr. Harrop is one of the counsel for SCO on the case, one of the outside counsel. But his declaration was just submitted to show the procedural history of our efforts to obtain discovery and relying on what the Gupta and Sontag declarations were showing as to the need for it."

When IBM attorney David Marriott spoke about the Gupta Declaration, he said the same odd thing, that SCO said the Gupta Declaration also wasn't about copyrights:

"Now, Your Honor, in opposition to IBM's Motion to Strike, SCO concedes that the Gupta declaration, quote, 'does not discuss whether any of the Linux code he observed infringes any of SCO's copyrights'. SCO claims that, quote, 'Mr. Gupta's declaration was offered not to show IBM's copyright infringement of SCO protected code. Rather,' it says, 'it was submitted for the,' quote, 'very narrow purpose,' close quote, to support SCO's Rule 56 request.

"SCO effectively concedes, Your Honor, that the very evidence submitted by Mr. Gupta, notwithstanding all of its other problems, is insufficient to create a genuine issue of material fact."

But the IBM motion was asking for a declaration of noninfringement of copyright, so how can everything not be about copyright? SCO's position was to assert that they need more time and more code. But then, on what basis did they sue AutoZone for copyright infringement, as Mr. Marriott asked? It was a gamble to take a "we won't present evidence unless we get more code", and one can't help but wonder why they handled this hearing the way they did. It takes so little to block a summary judgment.

It's like they are saying to the court, "Unless you let us play by our rules, we won't play at all." They won't do depositions until they get the code they've been asking for, and they won't defend against a summary judgment but instead ask for more time and more code. They can't find code because they need IBM to draw them a map, so they know where X marks the spot.

So what *was* about copyright? They did dig up that old study referenced in the Mike Davidson email, the confidential one we can't read but did hear discussed, the study they turned over at the 11th hour. That is exactly what you are not supposed to do in discovery by the way, namely sit on evidence and then spring it on the other side at the last minute, so they can't even read it, let alone defend against it properly. That's *if* that is what happened. No doubt they would assert they only just found it. In the same dusty filing cabinet they found the amendment to the Novell agreement, no doubt. But how can they tell the court that they didn't already have that antique? And if they had it, why didn't they turn it over earlier? Or maybe it's so weak, judging from IBM's reaction, that they only brought it forth finally in desperation? Harrop's earlier Declaration, with all the paragraphs IBM wants stricken, is here. Here's what Marriott said at the hearing about the study:

"SCO seeks to explain away the e-mail to which I referred by reference to a 1999 memorandum. Now, Mr. Hatch says that he understands that we have this memorandum. We have it because it was given to us hours before today's hearing. We got it this morning. It should have been produced a long time ago, but IBM is supposedly a party in breach of its discovery obligations.

Your Honor, the memo was dated five years ago. It was written three years before the e-mail which I have showed to Your Honor. It is a draft. It says on its face that it is provided, quote, 'subject to the further analysis of Mr. Davidson'. That's on page 5 of the fax sent to us this morning by Mr. Hatch. On the last page of the document, page 6 of the fax, he says, 'I'm awaiting analysis from Mike Davidson on some of these issues since he has a better feel for the history of much of this company.'

"Well, Your Honor, Mr. Davidson weighed in, in the e-mail we provided to Your Honor. In that e-mail, he makes abundantly clear in the last two paragraphs what he said when he weighed in. I can't read it for the Court. Your Honor, if you look at the very first paragraph in this memorandum, you will see that the memo which is offered to explain away the e-mail makes exactly the point which we've been making, and I will read this for the Court.

"It says, quote, 'As you requested, below is a draft of my report on existence of Unix-derived code in Linux. What we tried to do was to determine if there was any material from Unix in Red Hat Linux, Release 5.2. To make this determination, we used a copy of Red Hat Linux, which was purchased from the local Best Buy. We then compared it to multiple copies of Unix. We undertook an investigation about substantial similarity by comparing Linux to Unix and we did it' -- not in 25 thousand man-years, not with the supposed road map that you've heard about today, but 'with Unix and with Linux.'"

So their "evidence" seems to have weaknesses, and there is nothing else. It's all very puzzling, trying to figure out why this seems to be their only evidence, a 5-year-old study that seems not to be so very helpful. Of course, we can't see it, because it is confidential, so perhaps if I read it, I'd feel differently. But nothing changes the fact that SCO's executives did say they had done those deep dives, and the time frame wasn't 1999. What happened to those studies? And why wasn't the memo and email turned over in discovery earlier? You might wish to check out Lamlaw today too, for his take on the hearing.

It has brought me to a theory about why Mr. Silver hemmed and hawed when it was his turn to speak at the hearing, as we heard from eyewitnesses, about his involvement in the Red Hat and AutoZone cases. He repeatedly denied any "credit" for that piece of work. Mr. James introduced him as the guy who had been really deeply involved in those cases, and Mr. Silver modestly demurs and clearly gets it in the record that he wasn't involved. Here's how the conversation went:

"MR. JAMES: Your Honor, and I'm going to, and when I'm finished, what I'd like to do, if Your Honor will allow, is Mr. Silver was very involved in the Red Hat case and the other cases, and I haven't had the involvement, and with Your Honor's indulgence, if you will allow him to make a couple points, I would appreciate it. And I'm going to ask you to allow him to do that.

THE COURT: Go ahead. . . . .

THE COURT: I thought you were going to make points about Red Hat and AutoZone. He has already made points about the breadth of the Complaint. He said you have been involved and Red Hat and AutoZone.

MR. SILVER: Actually, I believe there may be confusion about that. My perspective on Red Hat and AutoZone is the perspective that I have in retrospect, because of my understanding of the breadth or these actions. I do not actually have direct involvement in Red Hat and AutoZone, and if the only reason Your Honor is allowing me to speak is on that premise, I should sit down.

THE COURT: I thought that was the premise. Isn't that what you said, Mr. James? Did I misunderstand you? I mean, you have made your arguments about the Complaint, and you and Mr. Chesler have made those arguments about what the Complaint says and what it doesn't say and how broad it is and how broad it isn't.

MR. JAMES: Let me say at this point, then, Your Honor, if I may: At a minimum, counsel's familiarity with AutoZone and with the Red Hat case is significantly greater than mine. He wrote the portions of the Reply Memo that address those cases. He has perhaps not entered an appearance, but he has much more familiarity. I will struggle through those, if you'd like me to, but Mr. Silver will do it more succinctly.

MR. SILVER: My familiarity, Your Honor, is with the overview of the entirety of the matters presented before the Court, and that allows me to describe the relationships between the different matters Mr. Chesler has presented. If Your Honor will allow me to speak to that very briefly, I would appreciate it. However, the last thing I want to do is try Your Honor's patience."

Ah! Only the overview, reflections in retrospect. I was not there. I was not involved. I'm not the one, I hear him saying. I wish to clear up that confusion.

And here we have Mr. Harrop, who has hardly been the visible centerpiece of the SCO legal team, outside counsel, tapped to step forward to tell the judge all about the SCO legal case's procedural history. It's all so peculiar, it starting to make me think that no one at Boies, Schiller wishes to have this case on their resume. IBM's Evan Chesler spoke about SCO's "Litigate it Anywhere But Here" strategy. I'm beginning to see a "Anybody But Me" stance to match. At any rate, here is Mr. Harrop's Supplemental Declaration, in which he tries to persuade the court that he does too have personal knowledge of the matters he is testifying to.

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

Brent O. Hatch (5715)
Mark F. James (5295)
Mark R. Clements (7172)
HATCH, JAMES & DODGE, PC
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Robert Silver, Esq. (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Frederick S. Frei (admitted pro hac vice)
Aldo Noto (admitted pro hac vice)
John K. Harrop (admitted pro hac vice)
ANDREWS KURTH LLP
[address, phone, fax]

Attorneys for Plaintiff The SCO Group, Inc.

_____________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

______________________

THE SCO GROUP,

Plaintiff,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant

______________________

SUPPLEMENTAL DECLARATION OF
JOHN HARROP IN SUPPORT OF SCO'S
OPPOSITION TO IBM'S MOTION TO
STRIKE

________________________

Case No. 2:03-CV-0294 DAK

Judge: Dale A. Kimball

Magistrate Brooke C. Wells

______________________

SUPPLEMENTAL DECLARATION OF JOHN HARROP



1. My name is John Harrop, and I am a Partner in the law firm of Andrews Kurth LLP, co-counsel to The SCO Group, Inc. ("SCO") in this litigation. My office is located at [address]. This Supplemental Declaration is based on my personal knowledge.

2. I submit this Supplemental Declaration as a supplement to my July 9, 2004 Declaration, which was submitted in support of SCO's Memorandum in Opposition to Defendant/Counterclaim Plaintiff IBM's Motion for Summary Judgement on IBM's Tenth Counterclaim.

3. IBM has moved to strike my July 9, 2004 Declaration for lack of my personal knowledge and lack of qualifications to address the matters that I addressed. In addition to the material in my July 9 Declaration, I set forth below the personal knowledge and qualifications for the statements in my July 9 Declaration.

4. In my July 9 Declaration in support of SCO's Rule 56(f) Motion, I set forth: (i) background facts about the pleadings and legal claims in this case; (ii) information describing the broad scope of IBM's Linux activities that are at issue in IBM's Tenth Counterclaim; (iii) an explanation of the substantial discovery that SCO should be entitled to take before the Court considers IBM's motion for summary judgment on IBM's Tenth Counterclaim; (iv) information that has been presented previously in this case, but which I reorganized, and which describes the difficulties that SCO has encountered in obtaining needed discovery relating to IBM's copyright infringement; and (v) a summary for the Court of the factual and equitable basis for SCO's need and entitlement to more discovery than SCO has obtained thus far, which includes (where necessary) references to the July 9 Declaration of Chris Sontag.

5. I have been part of SCO's outside counsel team in this case since December 2003, and have worked directly on many aspects of this case. Specifically, I have personal knowledge of the discovery matters and SCO's plans for discovery on copyright issues which are presented in my July 9 Declaration.

6. I have been an intellectual property attorney in private practice for about nine years.

7. I have reviewed, in the course of my work for SCO, all pleadings, discovery filings, and public articles that are cited, quoted or referred to in my July 9 Declaration.

8. In my July 9 Declaration (and as stated therein), I have personal and first-hand knowledge of the facts presented in describing the discovery problems that SCO has encountered in receiving material from IBM needed for analysis of copyright infringement. I relied upon that first-hand knowledge (and, as noted in my July 9 Declaration, upon the contemporaneous declaration of Chris Sontag) in presenting paragraphs 26-27, 29, 31-32, 35-36, 41-45, 46-50, 53- 54, 55-58, 59-65, 66-68, and 76-90 of my July 9 Declaration.

9. I have personal knowledge of the facts and have studied or reviewed the conclusions which support my statements in Paragraphs 5, 7, 9, 19, 20, 22, and 23.

10. I participated in SCO's attempts to compare UNIX and Linux source code, and I relied on that knowledge (and the contemporaneous Sontag and Gupta declarations) in presenting paragraphs 72 and 91-95 of my July 9 Declaration.

11. I have personal knowledge of SCO's approach to defending against IBM's Tenth Counterclaim and I relied on that knowledge in presenting paragraphs 73-75.

12. It has been common practice in the pleadings in this case to present newspaper, magazine, and Internet articles to the Court. SCO could have presented these materials which IBM finds objectionable in my July 9 Declaration in SCO's Memorandum Opposing Summary Judgment instead, and indeed did as to some of this material to which IBM objects, i.e. paragraphs 38-39.

13. The matters presented in paragraphs 70 and 71 of my July 9 Declaration are not presented to the court as proof of copyright infringement, but rather for the fact that the quoted statements by Mr. Torvalds and Mr. Morton were reported as being said. Such reports provide leads for the Rule 56(f) discovery that SCO seeks leave of the Court to conduct.

14. Moreover, my July 9 Declaration is intended to provide background and context so as to serve as a convenient reference for the Court for: (1) the history of the discovery disputes obstructing SCO's ability to develop its case; and (2) the outline of the discovery SCO needs and intends to conduct if the Court so orders.

15. I attest that the Exhibits to my July 9 Declaration are true and correct copies of the materials presented.

I declare under penalty of perjury that the foregoing Supplemental Declaration of John Harrop is true and correct.

September 7, 2004.

[signature]
John Harrop



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I caused a true and correct copy of the foregoing SUPPLEMENTAL DECLARATION JOHN HARROP IN SUPPORT OF SCO'S OPPOSITION TO IBM'S MOTION TO STRIKE to be mailed by U.S. Mail, first class postage prepaid, this 7th day of September, 2004, to the following:

Alan L. Sullivan, Esq.
Todd M. Shaughnessy. Esq.
Snell & Wilmer L.L.P.
[address]

Copy To:

Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.

_______[signature]______


  


SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike - as text | 173 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to
Authored by: Anonymous on Saturday, September 25 2004 @ 07:00 AM EDT
Thanks PJ,
Catch some Sleep please, it is the weekend!
Raven II

[ Reply to This | # ]

Corrections Here Please
Authored by: Anonymous on Saturday, September 25 2004 @ 07:13 AM EDT
No text.

[ Reply to This | # ]

Off Topic Here
Authored by: Anonymous on Saturday, September 25 2004 @ 07:14 AM EDT
Please use the Anchor tag and HTML formatted so we can follow the links easily.

[ Reply to This | # ]

OT
Authored by: Anonymous on Saturday, September 25 2004 @ 07:15 AM EDT
If posting a link to an article on the World Wide Web, please try to use the
HTML Formatted mode and make it easy to click on a link and follow it directly
to the article of interest by using an Anchor tag.
<a href="http://example.url/">visible text</a>

This is also the place to start discussions unrelated to the topic(s) of the
original story.

Please choose new and appropriate titles for unrelated topics.

[ Reply to This | # ]

HELP! I'm loosing it!
Authored by: Vaino Vaher on Saturday, September 25 2004 @ 08:36 AM EDT
This is too much! Lock me up, because everything seems to make no sense!

First, this man rants about difficulties obtaining code to prove copyright
infringment. But SCO says that the only copyright infringment occured after they
revoked IBM's license and IBM continued to distribute AIX.

Second, he files a supplemental even now that, to the best of my understanding,
IBM has changed their mind about his first declaration. Why does the man have to
defend himself when no one is objecting to his first declaration? Because he is
the last man standing?

[ Reply to This | # ]

Declaration re: the procedural history of a case?
Authored by: danb35 on Saturday, September 25 2004 @ 09:01 AM EDT
IAAL, but I've never handled litigation of this sort before, so I'd like a
sanity check from other legally-minded folks out there. When I read Harrop's
first declaration, it seemed to me that it consisted of (1) legal argument, (2)
restatement of the Sontag and Gupta declarations, and (3) a review of the
procedural history of the case. The supplemental declaration provided here
further confirms that impression.

(1) is, of course, impermissible in a declaration, as it does not consist of
"facts" to which a person may testify from personal knowledge, nor of
permissible opinion testimony (even if the declarant were qualified as an
expert). (2) seems pointless, at best. What about (3)? It seems very strange
to me that a party would bring in a declaration describing the procedural
history of the case--after all, the judge has the entire record before him. Is
this in any way a normal procedure?

[ Reply to This | # ]

Does this make sense?
Authored by: Anonymous on Saturday, September 25 2004 @ 09:41 AM EDT
Imagine that, at some point, SCOG and its backers decide that the litigation is
hopeless. They have these objectives: try to extract what they can out of SCOG
before it goes belly up, avoid personal prosecution, and lose quickly as the FUD
campaign has actually backfired to the degree that Linux and IBM are now getting
positive media exposure.

They cannot just raise their hands and say "sorry, April fools"
because that will definitely land them in court on fraud charges. Perhaps, they
need to lose quickly while giving the appearance of fighting and while
channeling cash out of the company. Some of what we are seeing would seem to
fit with this hypothesis.

This is all total conjecture and I am not making any specific accusations.

[ Reply to This | # ]

Is Mr Harrup acting as a lawyer or a witness?
Authored by: jsoulejr on Saturday, September 25 2004 @ 11:09 AM EDT
Is there a conflict here?

[ Reply to This | # ]

"...they won't defend against a summary judgement..."
Authored by: rao on Saturday, September 25 2004 @ 11:54 AM EDT

In AllParadox's recent article on PSJ's I posted a theory that would explain this. The theory goes like this:

In order to really defend the PSJ on CC10 they have to specify a copyright that was violated. To show ownership of the copyright they have to present the APA and its amendments as evidence. The judge has already stated (in the Novell case) that these documents were not a clear transfer of copyrights. This could result not only in loss of the PSJ but also there ability to claim ownership of any copyrights.

[ Reply to This | # ]

Anybody But Me-Silver Sleeping
Authored by: Anonymous on Saturday, September 25 2004 @ 11:55 AM EDT
It could be that Mr Silver went to sleep because he pulled an all nighter, but
if this has degenerated into a "find someone else to take the rap"
scenario, then perhaps his falling asleep had nothing to do with being tired,
rather it was self protection from any of his "collagues" last minute
manuvers trying to turn the position of "Captain of the Titanic" over
to him.

[ Reply to This | # ]

Could SCO now be violating the contract?
Authored by: rharvey46 on Saturday, September 25 2004 @ 03:25 PM EDT
Since SCO is now claiming that the law suit is not about copyrights, and SCO
(supposedly) agrees that IBM did not violate the copyright, but now the Monteray
contract, could IBM now counter that SCO is violating that contract?

It appears to me that the case was originally about copyright, but, when SCO
'knew' that it could not win on that grounds because it did not own copyright to
all of Unix (i.e. Novell does) and they can not prove that IBM provided code to
Linux (other than IBM's own code), SCO switches gears and makes it a case about
the contract - and IBM insists that the case should be about copyright (at least
at first), since that was what IBM was originally accused of, but SCO can not
prove it.

So now the question comes up: Could SCO be violating its own (or formerly own)
contract with IBM? Especially since they can not prove that IBM distributed SCO
code to Linux. Could IBM accuse SCO of contract violations? Would it stick? It
appears that SCO really wants to 'legally steal' the IBM code, claiming that it
is derivative of SCO code (actually, most of the SCO code was not written by
SCO, but other companies).

[ Reply to This | # ]

Page formatting!!!
Authored by: Anonymous on Saturday, September 25 2004 @ 03:35 PM EDT

What's up with the page formatting?

The default, squinty font size is bad enough. But whatever it is that requires left/right scrolling when I tell my browser (Mozilla) to use a larger font is darned annoying.

Anyone got any tips to keep this from happening with Groklaw?

[ Reply to This | # ]

The crucial paragraph - paragraph 7
Authored by: Anonymous on Saturday, September 25 2004 @ 09:38 PM EDT
7. I have reviewed, in the course of my work for SCO, all pleadings, discovery filings, and public articles that are cited, quoted or referred to in my July 9 Declaration.

(A) If you remember, Harrop's original declaration states, for example, that Linus Torvalds was a student of Tannenbaum.

Harrop's knowledge of this "fact" is founded on a news article.

IBM's motion to strike, argues this is inadmissable hearsay. Relying on news articles for the truth of their content. And isn't personal knowledge

(B) You will also remember that IBM argues to strike certain other parts of Harrop's original affidavit, on the basis that they contain inadmissable legal argument


Here we have Mr Harrop saying (in response to A) "Well I read the news article", and also saying (in response to B) "Well I read the legal filings" -- neither of which to me, at least, doesn't exactly seem a strong arguments.

Harrop's answer to A doesn't really answer IBM's question at all, and Harrop's answer to B is off-point (IBM is arguing that Harrop is presenting inadmissable legal argument about the procedural history, not that he doesn't necessarily have personal knowledge of the procedural history).

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Mr Frei is wrong
Authored by: Anonymous on Sunday, September 26 2004 @ 01:10 AM EDT
15 September from SCO:-
Here is what SCO attorney Frederick Frei said about this document:

"Mr. Harrop's declaration -- I'm thinking maybe now they backed off from trying to strike that because they didn't mention it. Mr. Harrop is one of the counsel for SCO on the case, one of the outside counsel. But his declaration was just submitted to show the procedural history of our efforts to obtain discovery and relying on what the Gupta and Sontag declarations were showing as to the need for it."

IBM reply in support of motion to strike page 10 of PDF (IBM-301), submitted 13 September

Conclusion

For the foregoing reasons, IBM respectfully requests the Court strike the materials submitted by SCO in opposition to IBM's cross motion for partial summary judgement, as well as the Supplemental Declarations submitted by Messrs. Gupta, Harrop and Sontag dated September 7, 2004, and not consider them in ruling on IBM's Cross-Motion for Partial Summary Judgement on its Tenth Counterclaim.


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Random paragraphs
Authored by: Anonymous on Sunday, September 26 2004 @ 04:23 AM EDT
He says that he has personal knowledge of par 19. However that paragraph is
mostly judgement calls and not statements of facts.

He doesn't seem to contest that paragraph 16 was pure judgement call.

I haven't read all the other declarations but mostly the ones I read only stated
facts like "I saw an employee download Linux source from _____ URL."
This is obviously a fact rather than a judgement call.

This lawyer seems to be typical Bois quality saddly.

[ Reply to This | # ]

Random thoughts on the declaration
Authored by: mhoyes on Sunday, September 26 2004 @ 12:22 PM EDT
I went back and tried to read the Harrop declaration of Jul 8 again. From it
and other things I am reading in all the motions, I have come away with a few
thoughts.

1) The SCOG lawyers seem to be trying to create a narrow case. They are running
into problems however because of public statements made by the officers of SCOG.
The narrow case seems to be that anything in AIX or Dynix is controlled by the
contract the IBM signed with AT&T. That the contract says they own their
own code, but can not do with it as they please.

2) Because of the public statements made however, they seem to opened a can of
worms and now they are crawling all over the place and the lawyers can't get
them back in the can. That would seem to be in part where these counter-claims
are coming from.

3) Now, the intelegent thing to have done at the very begining would have been
to file the suit against IBM, not say a word to the press, and let the lawyers
battle it out. At that point, most people would not give a plugged nickle about
what was going on and the reputation would not be sullied. Instead, they send
out letters to these 1500 companies and make all this noise in the press about
there precious IP, then sue IBM. This makes it appear to be an extortion scam
to make people want to pay because it is easier than going to court.

4) All of the statements being made in court now by the lawyers would seem to be
adding fuel to the fires of IBM and RedHat in regards to their Lanham Act
charges since the lawyers are saying that they didn't have good reason to bring
suit at this time until they get discovery. At this point, they appear to have
the Sword of Damocles over their heads.

5) Where is Boise in all of this? Apart from a couple of appearences in news
conferences, he hasn't really been seen. This would seem to indicate that he is
either too busy or wants to distance himself as much as possible from the case.

Any thoughts?

meh

[ Reply to This | # ]

OT - the rquirement that SCOG has to meet to beat IBM's PSJ
Authored by: blacklight on Sunday, September 26 2004 @ 09:03 PM EDT
I am one of those who have derided - and justifiably, in my opinion, the quality
of SCOG's pleadings against IBM's PSJs. To be frank about it, SCOG has been
doing the equivalent of throwing every kind of paint on the wall in the hope
that something sticks to that wall.

It occurred to me, as I was ogling the good looking young females today in sunny
Central Park, that SCOG does not have to hand in a good or clean pleading to
defeat an IBM PSG - the pleading overall may be a piece of crap, but all SCOG
has to do to beat IBM's PSJ is to come up with a rationale that just barely cuts
it with judge Kimball's interpretation of the law. If IBM's well reasoned PSJ
does not win the day, I'll be disappointed for two seconds before I start
looking for ways to tighten the noose around SCOG.

[ Reply to This | # ]

Slough your losers...
Authored by: Anonymous on Monday, September 27 2004 @ 03:32 AM EDT
In many card games, you look for ways to ditch your losing cards. This surely
isn't the only case Boies & co. are handling, and they're so convinced
they're right, they've seen no reason to check up on their attourneys.

Now, I'm not saying that Boies would do so little in the case so as to invite
malpractice or similar charges, but it seems to me that the attourneys might
focus more effort on cases where they could *win* at some point. With the
evidence they lack, it would seem to me to be wise to do as little work as
possible, since you expect to lose it soon, anyhow, mooting all the extra work
you've done.

As I said, once you know the card is a loser, you do your best to find a good
time to dump it, and you don't waste any effort on trying to "save"
it--you want to win, so you invest your time where it will actually pay off, not
in million-to-one lottery tickets.

[ Reply to This | # ]

I still don't get it.
Authored by: talahin on Tuesday, September 28 2004 @ 04:12 PM EDT
In his supplemental declaration Harrop states...

I participated in SCO's attempts to compare UNIX and Linux source code, and I relied on that knowledge

When all that has been shown, is a 1999 letter about comparing UNIX and Linux, and mister Harrop tells us that he joined the case in December 2003.
Are lawyers allowed to make these kind of statements or does he know something he didn't tell anyone else about.

Yes, I know he uses that nice weasel word attemps
Yes, your Honor we tried to compare the code, but IBM would give us all of the AIX and Dynix code we asked for.

Gerrard de Jonge

My freedom ends where yours begins.

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