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| SCO's 56(f) Motion re Contract Claims - as text |
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Thursday, December 02 2004 @ 11:06 AM EST
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Here is SCO's Rule 56(f)
Motion In Further
Opposition To IBM'S Motion
For Summary Judgment On
SCO'S Contract Claims as text, thanks to Steve Martin. This is where SCO pleads for more time to do discovery before the court rules on IBM's motion for partial summary judgment on the contract claims. Specifically they would like to do depositions of those "responsible for accessing SCO's password-protected website", among others. So, I gather they made this scurrilous charge of hacking against IBM so they can use it to buy more time to do depositions. I suppose next they'll have the evil IBM "hackers" arrested, thrown into the deepest dungeon, and will pull out their tongues if they don't confess. Boiling oil might be good too. The rack? Nah. Off with their heads. I believe that is how it works in Alice's Wonderland. They are certainly inventive. I guess it's true what Mark Twain wrote: "The realization that one is to be hanged in the morning concentrates the mind
wonderfully."
*************************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address, phone]
[fax]
Robert Silver, Esq. (admitted pro hac vice)
Edward Norman (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant
vs.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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THE SCO GROUP'S RULE 56(f)
MOTION IN FURTHER
OPPOSITION TO IBM'S MOTION
FOR SUMMARY JUDGMENT ON
SCO'S CONTRACT CLAIMS
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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Plaintiff/Counterclaim-Defendant The SCO Group, Inc. ("SCO") hereby moves the Court
for an Order denying or continuing consideration of Defendant/Counterclaim-Plaintiff International
Business Machines Corporation's ("IBM") Motion for Summary Judgment on SCO's Contract
Claims pursuant to Federal Rule of Civil Procedure 56(f). SCO's Motion is based on the following
grounds:
As set forth in detail in SCO's Opposition Memorandum and accompanying declarations,
there remains significant, relevant discovery in this case that bears directly on the issues raised in
IBM's Motion. This discovery includes, among other things, depositions of several witnesses
whose declarations IBM has submitted with its Motion; depositions of participants in the
negotiations of the 1995 Asset Purchase Agreement between Novell and SCO and of the October
1996 Amendment No. 2 thereto; depositions of IBM employees responsible for accessing SCO's
password-protected website; and a review a documents only recently made available to SCO.
Although the law and record evidence developed to date are sufficient to require the denial of
IBM's Motion, the Motion should further be denied because SCO has not had an opportunity to
make full discovery.
This Motion is supported by the declarations of Edward Normand and Michael Davidson
and SCO's Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's
Contract Claims.
Dated this 30th day of November, 2004
[signature]
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver, Esq. (admitted pro hac vice)
Stephen N. Zack (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, hereby certifies that a true and correct copy of THE SCO
GROUP'S RULE 56(f) MOTION IN FURTHER OPPOSITION TO IBM'S MOTION FOR
SUMMARY JUDGMENT ON SCO'S CONTRACT CLAIMS was served on Defendant
International Business Machines Corporation by first class mail on the 30th day of November, 2004,
as follows:
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
____[signature]____
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| Authored by: Anonymous on Thursday, December 02 2004 @ 12:06 PM EST |
When is the Judge going to rule, and end this discovery circus?!
[ Reply to This | # ]
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| Authored by: Benanov on Thursday, December 02 2004 @ 12:07 PM EST |
The whole 'password-protected website' mumbo-jumbo is misleading because it's
anonymous + email address.
I wonder if the judge understands that, or if they'll buy it hook line and
sinker...
Like PJ said, it's nothing more than a desperate plea. Contrasted with their
usual overlong filings, this one is very short--but it's just as fluffy.
---
That popping sound you hear is just a paradigm shifting without a clutch.[ Reply to This | # ]
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- SCO's 56(f) Motion re Contract Claims - as text - Authored by: rsteinmetz70112 on Thursday, December 02 2004 @ 12:24 PM EST
- Embrace and lie... When is the judge going to say enough is enough? - Authored by: Anonymous on Thursday, December 02 2004 @ 12:38 PM EST
- SCO's 56(f) Motion re Contract Claims - as text - Authored by: Christian on Thursday, December 02 2004 @ 12:58 PM EST
- "accessing" != "hacking" - Authored by: Ed L. on Thursday, December 02 2004 @ 01:47 PM EST
- SCO's 56(f) Motion re Contract Claims - as text - Authored by: rand on Thursday, December 02 2004 @ 02:25 PM EST
- Who Knew? - Authored by: ujay on Thursday, December 02 2004 @ 04:33 PM EST
- SCO's dummy login protection - Authored by: one_penguin on Thursday, December 02 2004 @ 06:31 PM EST
- Right - Authored by: Anonymous on Friday, December 03 2004 @ 12:00 AM EST
- Right - Authored by: Anonymous on Friday, December 03 2004 @ 06:35 AM EST
- It's a trap to cause more delay - Authored by: Anonymous on Thursday, December 02 2004 @ 07:10 PM EST
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| Authored by: Anonymous on Thursday, December 02 2004 @ 12:12 PM EST |
http://www.infoworld.com/article/04/12/01/HNunixscoquestions_1.html
Infoworld Report
"The SCO Group (Profile, Products, Articles) may have
a more difficult time making its case that Linux includes illegal source code
than previously thought, according to documents published recently on the
Groklaw.net Web site. Earlier this week the site published for the first time a
10-year-old lawsuit settlement agreement that grants developers the right to
redistribute much of the Unix source code that SCO claims to own and which may
ultimately strengthen IBM's (Profile, Products, Articles) defense in a lawsuit
between the two companies."
[ Reply to This | # ]
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| Authored by: overshoot on Thursday, December 02 2004 @ 12:24 PM EST |
| Please make links clickable. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, December 02 2004 @ 12:38 PM EST |
The point is that they don't claim 'illegaly access' password protected area. I
also just accessed there 'password' protected area with anonymous + emial, but
that isn't illegal I think.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, December 02 2004 @ 01:01 PM EST |
Are people who, when it was discovered that SCO was making source available
to anyone 1337 enough to click on 'OK', said "Don't do it, it's a
trap!"
We called them paranoid then (well, I did) but I guess they're
feeling pretty smug now.
Psst, Darl, here's a sure fire money maker. Place
a hot pie on your windowsill under a sign saying "Please take a slice of this
pie!", and then sue anyone who's trusting enough to do so. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, December 02 2004 @ 02:00 PM EST |
INAL, but that was actually Samuel Johnson who said that being hanged in the
morning concentrates the mind wonderfully. I must admit that it sounds like a
Twain quote, and is the sort of thing Twain would certainly have repeated.[ Reply to This | # ]
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| Authored by: Totosplatz on Thursday, December 02 2004 @ 02:35 PM EST |
Why do TSCOG not simply DO the depositions they keep whining about? If they
would just DO it, they wouldn't need more time!
They have had nearly two
years to DO it. Have they carried out any depositions yet? Only one I can
remember reading about,
Pfeffer (pdf) or Pfeffer (text).
---
All the best to one and all. [ Reply to This | # ]
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| Authored by: mossc on Thursday, December 02 2004 @ 02:39 PM EST |
If sco would like to depose me I can swear that I was able to access:
<ftp://ftp.sco.com/pub/scolinux/server/4.0/updates/SRPMS/kernel-source-2.4.19
.SuSE-340.nosrc.rpm>
without a prompt
and
<http://linuxupdate.sco.com/scolinux/update/RPMS.updates/kernel-source-2.4.21
-138.i586.rpm>
without a password after this case started. The timestamps on the files should
give me the exact days.
Also I have legal copy of "SCO Linux Server" from 2002 that I think
has the kernel sources. Also there is a note on the cd that "OpenSource
sources can be downloaded at ftp.SCO.com/pub/scolinux."
Chuck
[ Reply to This | # ]
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| Authored by: jim Reiter on Thursday, December 02 2004 @ 03:56 PM EST |
It was Samuel Johnson who said " "Depend upon it, sir,
when a man knows he is to be hanged in a fortnight, it
concentrates his mind wonderfully."
Mark twain like Oscar Wilde was know to borrow.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, December 02 2004 @ 04:57 PM EST |
You say of SCO,
they made this scurrilous charge of hacking against
IBM
SCO has made no such allegation, and you owe them an
apology. The relevant words refer to "depositions of IBM employees
responsible for accessing SCO's password-protected website", but there is no
suggestion that such access was improper. In the past, SCO and IBM collaborated,
so it was perfectly normal that each gave limited, password-protected access to
the other.
[ Reply to This | # ]
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| Authored by: scott_R on Thursday, December 02 2004 @ 05:25 PM EST |
Let me see if I understand this correctly. IBM "hacked" their
website, and SCO discovered the problem, yet people continue to be able to
access the system without a problem? It would seem to me that knowing there's a
an easily addressed security problem, and not doing anything about it would
imply that it's not actually a security "breach" important enough for
the court to address.[ Reply to This | # ]
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- Shakey ground - Authored by: moonbroth on Thursday, December 02 2004 @ 05:56 PM EST
- Shakey ground - Authored by: Anonymous on Thursday, December 02 2004 @ 11:23 PM EST
- Shakey ground - Authored by: Anonymous on Thursday, December 02 2004 @ 11:54 PM EST
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| Authored by: LarryVance on Thursday, December 02 2004 @ 06:05 PM EST |
http://www.sco.com/scosource/abi_files_letter_20031219.pdf
TSG Letter to
linux users.
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NEVER UNDERESTIMATE YOUR INFLUENCE!
Larry Vance [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, December 02 2004 @ 06:39 PM EST |
I have downloaded full Linux source code (version 2.4.13) from SCO web site
personally, as late as August 2003, after they said that Linux was infringing. I
have done this using regular FTP client software, no secrets or hacking was
required. The tarball contained inside the source RPM was identical to the
tarball available from kernel.org. I have unpacked it and it contained the text
of the GPL (as one would expect from a file with the same MD5 checksum)
identical to the file available from kernel.org.
I have notified IBM regarding this and if necessary, I'll sign a statement to
this effect. I have the files backed up on tape. I'm sure there are others out
there, like myself, that have done the same.
The whole claptrap about "hacking" and what not is just a bunch of
lies. But what else is new when it comes to SCO?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, December 02 2004 @ 10:34 PM EST |
IBM did not need to "hack" (that is SCO's characterization of IBM accessing a
publicly available Internet site -- not mine) to know that SCO is
distributing Linux... SCO told everybody that they are doing so, and intended to
continue to do so.
For example (I believe there are also similar
quotations in other articles by Chris Sontag and possibly Darl
McBride).
Computer Weekly -
BLAKE STOWELL - 29 September 2003
SCO has not sold the SCO Linux
software in question since 12
May, but the company continues to
distribute it via the internet to
honour existing support contracts, said
SCO spokesman Blake
Stowell.
Stowell disputed the idea
that SCO could no longer distribute
Linux. "We're the copyright holder
for the core Unix operating
system. If we want to charge someone a
licensing fee for using
our copyrighted software that's gone into Linux,
then we have that
prerogative," he said.
"If we want
to continue to distribute Linux to our existing
customers, we can do that
because we own the copyrights on
that Unix
software."
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: moosie on Friday, December 03 2004 @ 01:03 AM EST |
Sorry if this is late, butI am reading it late. It sounds more like the
Inquisition. So, yes, the rack would be appropriate.
- Moosie..
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| Authored by: GLJason on Friday, December 03 2004 @ 04:16 PM EST |
People seem to think it is about the copyright counterclaim (seeing that they
were making IBM's code available), but this motion is all bout the contract
claims. What information did IBM get from SCO's website to help them out on the
contract claims? I don't remember seeing anything, it was all depositions from
people involved in the original software agreements.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 04 2004 @ 08:35 AM EST |
Did anybody read the line "and a review a documents only recently made
available to SCO" as maybe refering to the <A
HREF="http://www.groklaw.net/article.php?story=20041126130302760">G
roklaw 's The 1994 USL-Regents of UCal Settlement Agreement - PDF and
text<A>
This is all in the right time frame. As the Groklaw article came on on the 28th
and this document was submited on the 30th.
It could refer to this or something else. Maybe only the people who know for
sure are the same ones who wrote the brief.
Just an intresting question.
[ Reply to This | # ]
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