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SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Tuesday, December 07 2004 @ 05:40 PM EST

Here is SCO's strained reply memorandum to DaimlerChrysler's withering opposition to SCO's Motion for a Stay of Proceedings in SCO v. DaimlerChrysler, and as you know, SCO lost the motion at the November 24 hearing, and the case goes to trial on January 7, unless SCO can think of something else to try quick.

Speaking of strained, I'm thinking SCO's lawyers better start memorizing Portia's speech in the Merchant of Venice, about the quality of mercy not being strain'd, as they might wish to plead for some mercy from DaimlerChrysler or the judge on January 7. Methinks they might be needing some mercy dropping on them like gentle rains from heaven.

There's a not-to-be-missed article by Steven B. Hantler, assistant general counsel at DaimlerChrysler, "How to Beat the Trial Bar." The Wall St. Journal is displaying it free to the public briefly, so hurry and take a look. In it, Hantler points out that a company targeted by a bogus, phony lawsuit doesn't have to just curl up and die. They can send a don't-mess-with-me message instead, and if ever there was a company qualified to speak on that topic, I believe DaimlerChrysler has proven itself to be it. Would any SCO-like litigant ever choose DC as its intended victim ever again? Maybe if they wanted to commit suicide by judge.

Hantler says "successful companies must take time to study the trial bar's playbook -- and develop opposition strategies. The good news is, the bar can be beaten." There are several dozen trial-lawyer firms "poring over every successful company's government filings, press releases and all their public documents." Why? "To find the next billion-dollar 'mistake'." Once they find one, what do they do?

"Page Two is testing this alleged mistake on mock juries and the media. If the story sells, they move to Page Three and bring the issue to government regulators, including state attorneys general, and try to involve them.

"Page Four is filing the lawsuit, if possible in one of those magic jurisdictions that the American Tort Reform Association calls 'Judicial Hellholes.' Page Five is staging a press conference or working with their allies at the network news magazines to generate incendiary coverage about their lawsuits. In Old West parlance, some of these events could be called 'necktie parties' -- that is, public hangings. Trial lawyers have even been known to brief financial analysts who cover a company's stock in an effort to drive down share price. . . .

"The idea of this coordinated campaign is to create a perfect storm of highly adverse media coverage, regulatory agency subpoenas, share-value loss, and decline in company and product reputation that overwhelms any company that did not see it coming. The trial bar knows that if they can turn up the heat, someone in the besieged company will propose settling the lawsuit 'for a couple hundred million dollars' as the most expedient solution, even though the lawsuit is without merit."

Sound like anybody we know? He outlines some strategies to cope, and one is having "an effective, proactive litigation communications function" to respond in real time and when appropriate to "get its message out first," instead of just saying "No comment." Now I finally understand why SCO hates Groklaw. We got in the way of the 5-Page program, particularly pages 2 and 5. Once again, I see how vital it is for the FOSS community to have "an effective, proactive litigation communications function," because it can and it does make a difference.

Finally, he writes that sometimes you simply have to litigate meritless lawsuits, even if it would be cheaper to settle. DC has done so in the past, and in doing so, he says they have sent a message that bringing a meritless case against them "is a lousy investment". Finally, he points out the need to "restore fairness and predictability to our tort system." Amen to that. Let's start with sending a clear and unmistakeable message to SCO, and by proxy to Microsoft, and do something about restoring sanity to patent law while Microsoft is still in the float the concept in the media stage.

I was just chatting by email with the Inquirer's Charlie Demerjian on exactly this subject of whether SCO picked the wrong target in suing DC. He was musing on the subject of lawyers. He was remembering a firm that made a practice of defending large car companies against frivolous lawsuits:

"You know, the people who got drunk, didn't wear their seatbelt, and ran into a tree at high speeds while hanging out the window mooning a cop. This is the car company's fault, of course, for not putting a "don't moon a cop at high speeds while not wearing your seatbelt sticker" on the sun visor, $500 million. Client shows up in a wheelchair and cries a lot about how their high school football career is now over.

"The short story is that these lawyers are USED to frivolous lawsuits and deal with them every day. They are used to sleazy underhanded lawyers looking for multi-million dollar shakedowns. They don't take anything from anyone and know when they are being jerked around. SCO is probably just another in a long line . . .nothing special. Only a $1 Billion, feh.

"If SCO had to pick a worse target, I can hardly think of one that would have been better prepared. Firearms manufacturers perhaps?"

You will notice, as I did, that SCO's lawyers do not refer to DaimlerChrysler, when abbreviating its name, as DC, or even as DaimlerChrysler referred to itself in its earlier court filings, as DCC. No. SCO refers to them as DCX, with the obvious allusion to their stock. Putting that together with Mr. Hantler's article, I deduce it may be deliberate. I also noticed they don't list the name of their firm in the header. But we surely want them to have "credit" for their work, so the name of the firm is Seyburn, Kahn, Ginn, Bess and Serlin, PC. The name of the firm that prevailed in this matter, representing DaimlerChrysler, is Dykema Gossett, PLLC.

This filing made me angrier than any I have read yet. Maybe it's cumulative, but when I reached the part where SCO says the only reason they brought the lawsuit is because DaimlerChrysler "admittedly" failed to fulfill their certification obligations on time, I felt my brain would explode. I tend to go do some research at such times, and so here is a trip down memory lane. First, here is SCO's May 12, 2003 threat to the 1500, long before DC even got a certification demand letter from SCO:

"Similar to analogous efforts underway in the music industry, we are prepared to take all actions necessary to stop the ongoing violation of our intellectual property or other rights."

And here is what Unix licensees were told, in this December 18 letter, to certify within 30 days:

"Accordingly, SCO requires written certification by your authorized representative under Para. 2.04 within 30 days of receipt of this letter. Such written certification must include statements that:

"1. You are not running Linux binary code that was compiled from any version of Linux that contains our copyrighted application binary interface code ('ABI Code') specifically identified in the attached notification letter.

"2. You, your contractors and your employees have, to your knowledge, held at all times all parts of the Software Products (including methods and concepts) in confidence for SCO.

"3. You have appropriately notified each employee and contractor to whom you have disclosed the Software Products, and taken steps to assure that such disclosure was made in confidence and must be kept in confidence by such employee or contractor. Please provide evidence of your compliance with this obligation. This evidence may include, but not be limited to, nondisclosure agreements, employee policies or manuals, or other such evidence of compliance.

"4. Neither you nor your contractors or employees with access to the Software Products have contributed any software code based on the Software Product for use in Linux or any other UNIX-based software product.

"5. Neither you nor your contractors or employees have used any part of the Software Products directly for others, or allowed any use of the Software Products by others, including but not limited to use in Linux or any other UNIX-based software product.

"6. Neither you nor your contractors or employees have made available for export, directly or indirectly, any part of the Software Products covered by this Agreement to any country that is currently prohibited from receiving supercomputing technology, including Syria, Iran, North Korea, Cuba, and any other such country, through a distribution under the General Public License for Linux, or otherwise.

"7. Neither you nor your contractors or employees have transferred or disposed of, through contributions to Linux or otherwise, any part of the Software Product.

"8. Neither you nor your contractors or employees have assigned or purported to assign any copyright in the Software Products to the General Public License, or otherwise, for use in Linux or another UNIX-based software product.

"SCO will not allow UNIX Licensees to make any improper use of the Software Products, including the use of the Software Products to assist development of Linux. If you fail to make, or are unable to make, a full and complete certification as required above within 30 days of receipt hereof, SCO may pursue all legal remedies available to it, including, but not limited to, license termination rights."

Now, compare those demands with the paragraph on certification in the license:

"On [SCO's] request, but not more frequently than annually, Licensee shall furnish to SCO a statement, certified by an authorized representative of Licensee, listing the location, type and serial number of all Designated CPUs hereunder and stating that the use by Licensee of Software Products subject to this Agreement has been reviewed and that each such Software Product is being used solely on such Designated CPUs (or temporarily on back-up CPUs) for such Software Products in full compliance with the provisions of this Agreement."

Any licensee, such as DaimlerChrysler, would naturally see a disjoint between the Unix license requirement to annually certify about CPUs and what SCO was trying to make it mean, stretching it to cover Linux. We don't need to wonder who is right, because the judge already said DaimlerChrysler was correct, that they had no duty to certify to the items SCO listed in its letter at all:

"However, the contract very clearly does not require certification of the various clauses contained in the agreement as 2.05 relates to the current use of the software by its unambiguous terms. Thus, Defendant is not required to certify, for example, that it has not exported the software to a prohibited country. Specifically, Defendant is not required by 2.05 to certify compliance with 2.06, 4.01, 7.05, 7.08, 7.09. I assume you mean two point zero six, four point zero one, seven point zero five, seven point zero eight, seven point zero nine, as requested by Plaintiff's correspondence.

"Therefore, any claim for failing to certify compliance with those sections of the agreement are properly dismissed pursuant to (c)(10) as Defendant has no contractual obligation to make such certifications."

The only question that the court couldn't dismiss on summary judgment motion was the time issue on the annual Unix certification, but only because the license is silent about how fast a demand must be responded to (it just says annually), another reason why any "delay" on DC's part can hardly be called a "delinquency", at least not without a trial, being a fact-based issue that hasn't yet been determined, although most of us can guess the outcome without straining our beanies.

So, for SCO to pretend that DC somehow deserved to be sued for "tardiness" in fulfilling an "obligation" the court has now said it didn't have, especially when you tack on that SCO never sent DC any info that they were now successor in interest to the license, as the agreement said they were obligated to do, such "certification" had never before been demanded, DC stopped using Unix software almost a decade ago, and SCO sent their letter to the wrong person at a company name that is no longer in use and to the wrong address, and at Christmas time, which as you will recall is a time when SCO itself has claimed it more or less shuts down, or at least it does when there is a discovery deadline it wants more time to meet, and there may be many reasons why DC didn't instantly respond to SCO's "Stick 'Em Up" letter.

Did SCOX call them up and ask them if they got the letter? Nooo. If one is following Mr. Huntler's 5 page-strategy, do you care about such niceties as calling up a company to make sure they even got your letter before you launch a lawsuit? And for heaven's sake, in what way was SCO in any way harmed by a few weeks "delay" here or there, anyway? Where are the damages? What is this lawsuit for? This is, in my opinion, the silliest and the meanest lawsuit I've ever seen, and SCO's insistence on pursuing it even now is revelatory of just what they really want. When they talk about DC's "feigned umbrage", while I can't speak for DC, I hasten to assure you, the public's umbrage is not feigned, but rather it streams down from heaven like a bursting thundercloud. We are really sick of companies who use the courts this way. We're sick of law firms that help them do it, too.

Here, then, is SCO's failed attempt to persuade the judge that they actually have a good reason to seek a delay. The no-nonsense judge, the very Honorable Rae Lee Chabot, to her credit, didn't buy it.

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

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

______________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

________________________________

JOEL H. SIRLIN (P20224)
BARRY R. ROSENBAUM (P26487)
Attorneys for Plaintiff
[address, phone]

JAMES P. FEENEY (P13335)
THOMAS S. BISHOFF (P53753)
STEPHEN L. TUPPER (P53918)
Attorneys for Defendant
[address, phone]


REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF'S
MOTION FOR STAY OF PROCEEDINGS

Plaintiff The SCO Group, Inc. ("SCO"), respectfully submits this memorandum of law in order to correct several factual and legal errors contained in defendant DaimlerChrysler Corporation's ("DCX") opposition to SCO's motion for a stay of proceedings. As discussed below, Daimler has failed to articulate a reasoned basis for denial of SCO's request for a stay of proceedings pending a determination of the motion for summary judgment in the related IBM case. DCX's feigned umbrage at SCO's request for a stay is insufficient to overcome the advantages to judicial efficiency and conservation of party resources that counsel in favor of a limited stay of these proceedings.

Factual Background

Following a court appearance on July 21, 2004, the Court entered an order on August 9, 2004, granting in part and denying in part DCX's motion for summary disposition. Contrary to the suggestion in DCX's papers, DCX contacted SCO's counsel on only two occasions to discuss the conduct of further proceedings in this case -- during the last week of August and on September 15, 2004. In fact, in August, counsel worked together to propose an Amended Scheduling Order in the case that contained extended dates for discovery of the remaining timeliness claim.

DCX also erroneously states that SCO did nothing until November 5, 2004, when it requested that DCX stipulate to a limited stay of this action. To the contrary, SCO contaced DCX counsel on October 20, 2004, in an attempt to propose a limited stay of proceedings, before receiving DCX's initial discovery demands relating to the timeliness claim. After an exchange of telephone messages between counsel, SCO formally requested DCX's consent to a limited stay on October 26, 2004, in an attempt to propose a limited stay of proceedings, before receiving DCX's initial discovery demands relating to the timeliness claim. After an exchange of telephone messages between counsel, SCO formally requested DCX's consent to a limited stay on October 26, 2004 in the course of a telephone conversation with DCX counsel. DCX did not respond to SCO's request until November 5, 2004, when DCX counsel indicated that his client would not consent. In the course of the November 5 telephone conversation, SCO requested that DCX reconsider the stay proposal, and proposed the alternative of a voluntary dismissal of the remaining claim in the case. On November 8, 2004, SCO, by email, reiterated its request that DCX reconsider a limited stay of proceedings, and in the alternative, forwarded a proposal "Stipulated Order of Dismissal WIthout Prejudice and Without Costs" for DCX's consideration. DCX responded to SCO's proposals by letter dated November 12, 2004, in which it stated that it would oppose a dismissal of the remaining claim without prejudice.

Finally, the efforts expended by DCX's counsel on the remaining timeliness claim have consisted of limited discovery demands received October 20, 2004; brief witness and exhibit lists dated October 27, 2004; and a four-page case evaluation summary dated November 16, 2004. Much of DCX's limited efforts were expended following notice from SCO that it intended to seek a stay of proceedings or a voluntary dismissal of the remaining timeliness claim.

What should not be lost in the face of DCX's posturing and hyperbole regarding SCO's alleged "gamesmanship," "tactic[s]," and "naked effort to manipulate the Court system" is that this action would not have been brought but for DCX's admitted failure to respond to SCO's request for a certification of its compliance with its UNIX license agreement until after this lawsuit was filed -- a certification that DCX has conceded was required by its very conduct in supplying a certification 110 days after it was requested.

Legal Analysis

As stated in SCO's stay motion, this Court clearly has the authority to exercise its discretion and stay proceedings in any case on its docket for good cause. The authority to stay an action while another case is proceeding is inherent and, contrary to the statement footnoted in DCX's response (DCX Mem. at 3 n.2), is not subject to the requirement that the two cases involve the identical parties and issues.

The authority DCX cites for its erroneous conclusion is based on two cases involving the former "plea of abatement by prior action." The defense of plea of abandonment is now codified as a ground for summary disposition in MCR 2.116(C)(6). When another action has been initiated between the same parties involving the same claim, the second action is subject to dismissal. The rule is designed to stop parties from endlessly litigating matters involving the same questions and claims as those presented in pending litigation. Kowry v. University of Michigan, 441 Mich 1, 20 (1992)(Riley, J. concurring).

Since a plea of abatement is not being offered in this case by either party, the rule cited by DCX is not applicable to SCO's request for a stay. Furthermore, a stay of proceedings has been authorized by the Michigan Supreme Court in order to promote judicial economy. In Consumers Power Co v. Michigan Public Utilities Commission, 270 Mich 213 (1935), three citizens started an action against the City of Saginaw and Consumers Power Company to invalidate a contract for the furnishing of natural gas. While that suit was pending, the City filed a petition before the Public Utilities Commission to fix the rate for natural gas. Rather than dismiss the second action, the Supreme Court ordered the commission to stay the proceedings while the validity of the underlying contract was being litigated:

But it is apparent that the Michigan public utilities commission cannot proceed to a determination of a reasonable rate for natural gas in the city of Saginaw except upon the assumption that the city is not bound by the contract of June, 1933. If in so assuming the utilities commission should be in error, appellant will have been uselessly subjected to the expense and inconvenience of a proceeding before the utilities commission to determine the charge to be made in Saginaw for natural gas furnished by appellant. To avoid even the possibility of a useless and burdensome proceeding before the commission, as well as to preserve the orderly administration of justice, we think the proceedings pending before the Michigan public utilities commission should be held in abeyance until decision of the case pending in the Federal court.

Id. at 217-218 (emphasis added).

SCO's request for a stay of proceedings is fully appropriate under the standard adopted in the Consumers Power case. First, as a practical matter, litigation of the timeliness issue in this case -- which is important to establish that UNIX licensees like DCX are required to timely provide a certification in response to the licensor's request, rather than ignore such a request -- will only be necessary if the license agreement at issue is interpreted in such a way as to protect SCO's rights to control its intellectual property (beyond the mere literal source code) in UNIX. It is important to recall that prior to the filing of this law suit, while the IBM case was ongoing, SCO had merely sought to collect information about compliance with its UNIX licenses from hundreds of its licensees here and abroad. To accomplish this purpose, SCO used letters, not litigation. It was only because DCX ignored SCO's request that SCO went to court to enforce its certification right. The issue of the scope of the certification was raised by DCX's own motion, which this Court decided on summary disposition was significantly narrower than urged by SCO. Once this Court ruled as it did, the usefulness of obtaining certifications from DCX and other licensees was greatly reduced. In other words, SCO's effort to collect information in advance of a ruling in the IBM case has been substantially impeded, and it now makes practical sense, both from the standpoint of both the Court's and the parties' resources, to await a summary judgment ruling in the IBM case before proceeding to litigate either the timeliness claim in this case or to appeal this Court's order regarding the scope of the required certification uder the UNIX license agreement.

Thus, SCO is not suggesting in its motion for stay that the issues in the IBM case and the instant case are identical. The issues are, however, as explained above, closely related in a practical sense. Moreover, a ruling in the IBM case as to the scope of the protections and restrictions contained in the UNIX license agreement will have the further consequence of informing SCO and its licensees what their rights are under the license agreement, and this, in turn, will make the certification requests and licensees' responses thereto, more meaningful than they would be in the absence of such a ruling.

Conclusion

For all of the foregoing reasons and the reasons stated in its Motion for Stay of Proceedings, SCO respectfully requests that its motion for stay be granted.

Respectfully submitted,

SEYBURN, KAHN, GINN,
BESS AND SERLIN, P.C.

By: ____[signature]____
Barry R. Rosenbaum (P26487)
Attorneys for Plaintiff
[address, phone]

Dated: November 22, 2004

Steven I. Froot, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner
[address, phone]

Mark J. Heise, Esq.
Co-Counsel for Plaintiff
Boies, Schiller & Flexner LLP
[address, phone]


  


SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text | 309 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic (OT) Here, please
Authored by: AllParadox on Tuesday, December 07 2004 @ 05:59 PM EST


---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Corrections Here
Authored by: Anonymous on Tuesday, December 07 2004 @ 06:02 PM EST
Please.


Patrick Jacobs

[ Reply to This | # ]

PJ, are you sure about that 7 January trial date ?
Authored by: Anonymous on Tuesday, December 07 2004 @ 06:13 PM EST
Did Judge Chabot want to punish SCO by forwarding the 11 January trial schedule
?
Or are we talking about the skipped 30 November case evaluation being moved to 7
January ?
If the latter, do you have a reasonable guess about the new trial date ?

[ Reply to This | # ]

30 Days
Authored by: stevem on Tuesday, December 07 2004 @ 06:20 PM EST
"And here is what Unix licensees were told, in this December 18 letter, to
certify within 30 days:

"Accordingly, SCO requires written certification by your authorized
representative under Para. 2.04 within 30 days of receipt of this letter. Such
written certification must include statements that:
"

Can I extract this section in particular:
"within 30 days of receipt of this letter"

I'd never noticed this wording before.
Just *when* did DCC gain "receipt of this letter". Since it was sent
to the wrong place/wrong person etc etc.
Now I read this as 30 days from when DCC received the letter, not 30 days from
when SCO sent it.


SCO might be setting themselves up for an even nastier fall with the boilerplate
wording here.


- SteveM

[ Reply to This | # ]

SCO's Exertion
Authored by: Anonymous on Tuesday, December 07 2004 @ 06:20 PM EST
To paraphrase in English:

"Yes, we were TOO busy! Yes, we were! Were, were, were, were, were, were,
were!

Why, we can't count the number of times we asked Dodge Motor Corporation (um,
Chrysler, um, whoever) for more time! And they did nothing but say 'no.' Well,
that and pester us with DEMANDS for information, like they were going on a
fishing expedition or something..."

If this is not it, how WOULD one ask for dismissal WITH prejudice?


[ Reply to This | # ]

  • SCO's Exertion - Authored by: Anonymous on Tuesday, December 07 2004 @ 07:04 PM EST
    • Indented? - Authored by: Anonymous on Tuesday, December 07 2004 @ 10:14 PM EST
    • SCO's Exertion - Authored by: danb35 on Tuesday, December 07 2004 @ 10:20 PM EST
  • SCO's Exertion - Authored by: Anonymous on Wednesday, December 08 2004 @ 02:51 PM EST
Memo to the world
Authored by: Anonymous on Tuesday, December 07 2004 @ 06:28 PM EST
(and especially to the legal sharks):

Beware the umbrage of PJ, because when she gets mad, she does research, followed
by public mockery that exposes just what a slimeball you are being.

To a sleazy lawyer, it must be terrifying to be on the receiving end of this.
To the rest of us, it's beautiful to watch.

MSS

[ Reply to This | # ]

FUD value is all SCO can get from this.
Authored by: kawabago on Tuesday, December 07 2004 @ 06:41 PM EST
And not much of it at that. I can't see any scenario where this law suit helps
SCO in any way, and many in which it is harmed. So who is making such
incredibly stupid decisions? Must be Darl, no one else could be so arrogantly
incompetent. I wonder what rock Noorda will eventually hide Darl under?


---
constructive irrelevance.

[ Reply to This | # ]

Steven Hantler's article on tort reform
Authored by: UglyGreenTroll on Tuesday, December 07 2004 @ 06:46 PM EST
Here's a great article on tort reform

http://www.manhattan-institute.org/pdf/cjf_42.pdf

written by Steven Hantler of, wait for it, DaimlerChrysler. Even if you don't completely agree with him, it is eye opening.

[ Reply to This | # ]

DCX but not SCOX
Authored by: grubber on Tuesday, December 07 2004 @ 07:24 PM EST
SCO's decision to use DCX is inconsistent with their use of SCO and not SCOX.
Makes you wonder what the motivation is.

[ Reply to This | # ]

The reason for the stock symbol reference
Authored by: Anonymous on Tuesday, December 07 2004 @ 07:27 PM EST
The use of the stock symbol in this document without also including SCO’s stock
symbol may be an attempt to slam D.C.’s stock. Any web search for that symbol
will show up this document now that it has been posted to the web but any search
for SCO’s symbol will not display this document.

[ Reply to This | # ]

Meanwhile on TSCOG web site
Authored by: tangomike on Tuesday, December 07 2004 @ 07:31 PM EST
In their so-called legal documents area, there are only two documents from Mar
3, 2004 under "SCO v. DaimlerChrysler":- the SCO complaint, and their
press release about the suit. Plus a really huffy summary dated Mar 4, 2004 of
how they've been wronged, and how they want to be compensated.

Apparently in SCOland time stood still. Probably explains why DCC had so much
trouble getting any (read none) response out of them.

I'm picturing Darl with his fingers in his ears,
"Lalalalalalalalalal..." It's a shame too because I miss him, and his
cows, and his IP, and his Constitution, and his millions/thousands/tens of lines
of code...

---
The SCO Group's secret project to develop Artificial Stupidity has obviously
succeeded!

[ Reply to This | # ]

Be Careful of Tort Reform
Authored by: Anonymous on Tuesday, December 07 2004 @ 07:35 PM EST

People seem to think that this article was referring to SCO.
For the most part, it's not. Instead, it's referring (indirectly) to folks who
sue manufacturers for injury caused by defective products. Such suits aren't
mentioned in the paper of course; one of the key strategies that big business
uses AGAINST the "trial bar" is to advance the claim (in every forum
possible) that most if not all product-liability and shareholder-liability
lawsuits are shakedowns being filed by ambulance-chasing law firms looking for a
big payday. While such barratry does undoubtedly occur, many lawsuits filed
against big business are wholly legitimate.

The folks who advocate "tort reform" are, FTMP, hoping that the baby
is thrown out with the bathwater--and that such legitimate lawsuits are
effectively prevented (or rendered toothless) as a matter of law.

The auto industry would certainly benefit. While DC is the good guy and SCO the
bad guy in this particular instance--and while the auto industry has been at the
receiving end of numerous "guy does 100MPH, breaks his neck, and sues the
automaker" lawsuits, there have been many instances of:

* Design defect is known to automaker but not fixed or publicized
* Someone gets hurt or killed, and they (or their survivors) sue
* Automaker fights the (legitimate) lawsuit tooth and nail.

Much of what passes for "tort reform" in legislative circles is in
fact intended to immunize manufacturers from legal responsibility for
misconduct. Unfortunately, it's hard to write legal language that can
distinguish a legitimate lawsuit from a legal shakedown--most such legislative
acts don't even bother; and either prevent such lawsuits outright, or cap
damages such that 1) lawyers won't take cases on contingency--effectively
closing the courthouse door folks who can't pay lawyers by the hour--which is
most of us; and 2) make it so that such lawsuits can simply be written off as a
cost of doing business.



Maybe what we need is a civil grand jury system--with broad powers of discovery
(far beyond what would be available to plaintiffs at trial), which would be able
to detect and weed out frivolous lawsuits.


engineer_scotty

[ Reply to This | # ]

SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: mossc on Tuesday, December 07 2004 @ 07:51 PM EST
this is the part that got me when I read the original pdf:

"a certification that DCX has conceded was required by its very conduct in
supplying a certification 110 days after it was requested."

where to start..... (without cussing)

[ Reply to This | # ]

timely manner
Authored by: phrostie on Tuesday, December 07 2004 @ 07:58 PM EST
they need to get SCOX to define a timely manner and once done say,

"ok we want all this settled in that time."
"show us the Code in that amount of time."


---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

Did I read this right?
Authored by: Anonymous on Tuesday, December 07 2004 @ 08:04 PM EST
"First, as a practical matter, litigation of the timeliness issue in this
case ... will only be necessary if the license agreement at issue is interpreted
in such a way as to protect SCO's rights to control its intellectual property
(beyond the mere literal source code) in UNIX. "

Are they saying that they are giving their rights to enforce the lincense
agreements completely if the IBM case goes aginst them? On one hand that is the
only way this makes sense, on the other hand it doesn't really pass the laugh
test does it? Does anyone seriously think they would not care about "the
mere literal source code" ?

[ Reply to This | # ]

Necktie party
Authored by: MathFox on Tuesday, December 07 2004 @ 08:24 PM EST
We've had our necktie parties in the SCO-IBM suit: Blepp's suitcase, the
disappearing rocket scientists and mathematicians, evidence of infringement
going up in smoke...

Oh, you say we should have hung IBM according to the trial bar book... Well, the
Groklaw book has a different ending.

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

[ Reply to This | # ]

SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: Anonymous on Tuesday, December 07 2004 @ 08:40 PM EST
Hang on a second,

SCO is late in filing its claims against DC for being late. That alone screams
dismissal with prejudice to me. If SCO is not concerned enough about the
complaint to file the required paper work on time then any claim by SCO against
DCC for failing to respond in time should be voided.

[ Reply to This | # ]

I don't get it ?!?!
Authored by: brian on Tuesday, December 07 2004 @ 09:45 PM EST
I don't get what SCO is trying to say here so I will go
line by line to try to understand it...

"The issue of the scope of the certification was raised by
DCX's own motion, which this Court decided on summary
disposition was significantly narrower than urged by SCO."

I translate this as "the courts found for DCC on what they
had to respond to and we didn't like it..."

"Once this Court ruled as it did, the usefulness of
obtaining certifications from DCX and other licensees was
greatly reduced."

Translation: "Our shake down of licensees was halted and
we didn't like it...."

"In other words, SCO's effort to collect information in
advance of a ruling in the IBM case has been substantially
impeded, and it now makes practical sense, both from the
standpoint of both the Court's and the parties' resources,
to await a summary judgment ruling in the IBM case before
proceeding to litigate either the timeliness claim in this
case or to appeal this Court's order regarding the scope
of the required certification uder the UNIX license
agreement."

This is where I lose it. What does losing in the DCC case
have to do with the IBM case? IBM isn't a case about
certifications and any ruling there (either in favor of
SCO or not) has no bearing on this case. What have I
missed in this?

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Memo to SCO Group
Authored by: Anonymous on Tuesday, December 07 2004 @ 09:54 PM EST


After watching your actions for some time,
I feel impelled to remind you of something
you seem to have forgotten ( or possibly never knew )


The First Law of Holes.

"When you're in one"







"STOP DIGGING!"

[ Reply to This | # ]

  • Nice try, but - Authored by: Anonymous on Wednesday, December 08 2004 @ 12:53 PM EST
A question on appeals
Authored by: brian on Tuesday, December 07 2004 @ 10:06 PM EST
From the document...

"...proceeding to litigate either the timeliness claim in
this case or to appeal this Court's order regarding the
scope of the required certification uder the UNIX license
agreement."

What is required for an appeal? Can a litigant simply
appeal because they don't like the first ruling or does
there have to be some trigger for it? I thought there had
to be some basis in law (procedural impropriety) for an
appeal other than, "we don't like the ruling we were
handed".

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Finally scoped it out
Authored by: AllParadox on Wednesday, December 08 2004 @ 12:00 AM EST
This was a tough one. Usually, I am pretty good at picking up on the
consequences of things, but I had to lay this one down and come back to it
later.

It all seems to be wrapped up in the short paragraph just before the
"Conclusion" heading. It is a little obscure, so I could be wrong
here, but my best shot at translation is as follows:
--------

Thus, SCO is not suggesting in its motion for stay that the issues in the IBM
case and the instant case are identical.
[Honestly, Judge, this motion has no legal merit]

The issues are, however, as explained above, closely related in a practical
sense.
[It is all the same IP, and if we go down in the IBM suit, this case is
history]

Moreover, a ruling in the IBM case as to the scope of the protections and
restrictions contained in the UNIX license agreement will have the further
consequence of informing SCO and its licensees what their rights are under the
license agreement, and this, in turn, will make the certification requests and
licensees' responses thereto, more meaningful than they would be in the absence
of such a ruling.
[You, Judge Chabot, are a moron and are incapable of figuring any of this out
for yourself. Our client, TSG, has made such a mess of this that even we cannot
figure out who owns what. We need Judge Kimball to explain it to us, so that we
can explain it to you.]
------------

As I said, this could be completely wrong, but provisionally, I think this
explains it.

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: blacklight on Wednesday, December 08 2004 @ 12:28 AM EST
"What should not be lost in the face of DCX's posturing and hyperbole
regarding SCO's alleged "gamesmanship," "tactic[s]," and
"naked effort to manipulate the Court system" is that this action
would not have been brought but for DCX's admitted failure to respond to SCO's
request for a certification of its compliance with its UNIX license agreement
until after this lawsuit was filed -- a certification that DCX has conceded was
required by its very conduct in supplying a certification 110 days after it was
requested" SCOG pleading

In other words, it's all the victim's fault.

[ Reply to This | # ]

  • They forced us! - Authored by: Anonymous on Wednesday, December 08 2004 @ 03:09 AM EST
  • Liars - Authored by: Anonymous on Wednesday, December 08 2004 @ 01:56 PM EST
SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: blacklight on Wednesday, December 08 2004 @ 12:33 AM EST
"Finally, the efforts expended by DCX's counsel on the remaining timeliness
claim have consisted of limited discovery demands received October 20, 2004
..."

... None of which SCOG complied with, of course.

[ Reply to This | # ]

SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: blacklight on Wednesday, December 08 2004 @ 12:43 AM EST
My thanks to PJ and her team for publishing this rag aka the latest SCOG
pleading: it's a pretty good refresher on why we hate SCOG. However, the most
effective way to kill a bug is not to hate it but to grind it under one's heel
until its innards explode and become a liquid film on the pavement.

Let there be no mistake about it, SCOG's delaying games only serve to postpone
the final outcome: we will grind SCOG under our heels, and we will see PJ wear
her red dress.

[ Reply to This | # ]

SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: blacklight on Wednesday, December 08 2004 @ 12:58 AM EST
"The issues are, however, as explained above, closely related in a
practical sense. Moreover, a ruling in the IBM case as to the scope of the
protections and restrictions contained in the UNIX license agreement will have
the further consequence of informing SCO and its licensees what their rights are
under the license agreement, and this, in turn, will make the certification
requests and licensees' responses thereto, more meaningful than they would be in
the absence of such a ruling." SCOG pleading

First, this paragraph does not contain one word about the issue being litigated:
timeliness. Second, the consequences of the IBM ruling are hardly judge Chabot's
concern so long as judge Chabot is persuaded that the DC case is not a subset of
the IBM case. And she certainly believes that, otherwise she would have stayed
the DC case right from the start. And in fact, SCOG believes (or used to
believe) that: otherwise, SCOG would not have rushed to sue DC, would not have
stated that the DC litigation covers different ground than the IBM litigation,
and would not have insisted that the DC litigation go forward.

[ Reply to This | # ]

Law of unintended consequences
Authored by: jim Reiter on Wednesday, December 08 2004 @ 01:34 AM EST

TSG started four lawsuits anticipating four results.

The first result, DC is lost. TSG's world has turned slightly in a direction
different from the one intended.

The second result will be either IBM or Novell. Each is able to decide the
ownership issue. Novell is behind, but much of the discovery and declarations in
the IBM matter are applicable to the Novell case.

Judge Kimball will decide which case (which issues) he will take first. This
could explain why the delay.

Autozone will never go to court.

TSG is dead. They have already lost the IBM and Novell matters.

[ Reply to This | # ]

SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: kurt555gs on Wednesday, December 08 2004 @ 01:50 AM EST
Wow, PJ has outdone herself. With all the things that the Groklaw comunity
lead by PJ has done lately such as the BSD/USL agreement, I will be willing to
bet PJ the sum of 1 cold Cocca Cola, that her name is being used in the same
sentance with very bad words over in Lindon Utah.

This is getting fun

Great work PJ

Cheers

---
M$ Delenda Est!
* Kurt *

[ Reply to This | # ]

DCX symbol - Let's trace the time back
Authored by: Anonymous on Wednesday, December 08 2004 @ 02:00 AM EST
We know that SCO couldn't decide until the last moment whether to sue AutoZone
or Bank Of America

This is pretty amazing IMHO

Why did they choose AutoZone?

Could it be because on the very day that SCO filed the lawsuit and announced it
to the world, it was AutoZone's earnings conference call announcing their
quarterly results?

SCO certainly would have been able to review a list of candidates to sue, and
see whose conference call or other stock-related event was coming up next (you
can get dates of forthcoming conference calls from Yahoo! for example)

(We also know how central stock prices are to Darl's thinking, see June 2003
correspondance with Novell for example, and securities-fraud allegations against
Novell in SCO's opposition to motion to Novell dismiss [and amazingly SCO
repeatedly mentions this even though SCO isn't suing Novell for securities fraud
or any such issue!] )


So, if we're going to speculate that DCX for DCC is to do with the stock ticker,
and stock thoughts in SCO's collective brain, I'd suggest we research some
background:

- Did DCX have any stock related activities (conference calls, merger issues,
etc) around or imminent at the SCO filed suit?

- Same question for IBM (March 6, 2003) ?

- Same question for Novell (Novell had been disputing SCO's copyright
registrations and ownership claims, for approx 9 months [some of which was
public] before SCO got around to suing them)

[ Reply to This | # ]

SCO did try to quietly go away, at least for now
Authored by: OldPro on Wednesday, December 08 2004 @ 02:13 AM EST
From the second paragraph in Factual Background,

"In the course of the November 5 telephone conversation, SCO requested that DCX reconsider the stay proposal, and proposed the alternative of a voluntary dismissal of the remaining claim in the case. On November 8, 2004, SCO, by email, reiterated its request that DCX reconsider a limited stay of proceedings, and in the alternative, forwarded a proposal "Stipulated Order of Dismissal WIthout Prejudice and Without Costs" for DCX's consideration. DCX responded to SCO's proposals by letter dated November 12, 2004, in which it stated that it would oppose a dismissal of the remaining claim without prejudice."

Apparently Daimler-Chrysler wants tbe matter settled with prejudice and/or wants to be re-imbursed for their troubles.

[ Reply to This | # ]

Official "The SCO Group" Positions - 54 days and counting
Authored by: fudisbad on Wednesday, December 08 2004 @ 02:14 AM EST

Main posts in this thread may only be made by senior managers or attorneys for "The SCO Group". Main posts must use the name and position of the poster at "The SCO Group". Main posters must post in their official capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or attorneys. Sub-posts from persons not connected with "The SCO Group" must be very polite, address other posters and the main poster with the honorific "Mr." or "Mrs." or "Ms.", as appropriate, use correct surnames, not call names or suggest or imply unethical or illegal conduct by "The SCO Group" or its employees or attorneys.

This thread requires an extremely high standard of conduct and even slightly marginal posts will be deleted.

PJ says you must be on your very best behavior.

If you want to comment on this thread, please post under the off-topic thread, "OT", found above.

---
FUD is not the answer.
FUD is the question.
The truth is the answer.

[ Reply to This | # ]

Isn't this ludicrous.
Authored by: Anonymous on Wednesday, December 08 2004 @ 07:01 AM EST
It seems really bizarre to me to ask for a stay in case concerned with
timeliness.

If there is no urgency to complete the case then surely there cannot have been
any urgency to get the required certification. SCO have not put forward any
claims of loss or damage by DCC's untimely compliance (Also my mind can't help
but wonder why no-one else was sued in the same manner, after all, only half
ever replied) so what on earth are they doing?

We all know the answer of course, but the repeated stupidity and greed of these
people sticks in my craw. The sooner this ends the better. Roll on the new
year.

soops

[ Reply to This | # ]

On a hike one day
Authored by: Anonymous on Wednesday, December 08 2004 @ 09:09 AM EST
Once while hiking through the outback of Australia, I got lost and almost died.
I was rescued by the nuns of The Sisters Of Mercy. When I awoke in their
hospital, a nun offered me the most delicious drink I ever had. I asked her what
it was and she replied “It is tea made from the Koala Bear.” I asked why it had
all the fur and bones still in it and she replied, “The Koala Tea of Mercy is
never strained.”

Min Donner

[ Reply to This | # ]

Pardon the cliche-- well, DUH!
Authored by: ray08 on Wednesday, December 08 2004 @ 09:42 AM EST
"Now I finally understand why SCO hates Groklaw. We got in the way of the
5-Page program, particularly pages 2 and 5. Once again, I see how vital it is
for the FOSS community to have "an effective, proactive litigation
communications function," because it can and it does make a
difference."

Many on Groklaw having been screaming at you (metaphorically) PJ, the word is
out and *lots* of people are reading groklaw. I don't have a link for it, but
yesterday I was reading all about Suse and NLD at Novell's website and I came
across a page that debunked M$'s "Get the facts" propaganda. One of
the paragraphs mentioned Groklaw as a source of "Getting the facts"!
We sure know Novell, SCO and IBM are tuned in.

Groklaw's membership maybe measured in the thousands, but I suspect the number
of readers is closer to millions. So, yea, it is *definitely* making a
difference. Groklaw is a lot like Bill O'Reillys "no spin" zone!

---
Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)

[ Reply to This | # ]

SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: blacklight on Wednesday, December 08 2004 @ 10:21 AM EST
"You will notice, as I did, that SCO's lawyers do not refer to
DaimlerChrysler, when abbreviating its name, as DC, or even as DaimlerChrysler
referred to itself in its earlier court filings, as DCC. No. SCO refers to them
as DCX, with the obvious allusion to their stock." PJ

SCOG's choice to refer to DC as DCX is a double edged sword: on one hand, anyone
who makes a search for "DCX" will find this pleading. On the other
hand, anyone who finds nd reads this pleading will be able to see the quality of
this pleading for himself or herself and refrain from using the services of the
law firm which crafted this pleading.

[ Reply to This | # ]

Answers from an architect
Authored by: domQ on Wednesday, December 08 2004 @ 11:10 AM EST
IANAL, but IAASA.

First, the cross-CPU issues are already solved for good: Linux runs everywhere.

Basic integration (on the scale of points i. and ii., say) is definitely feasible, actually that's what Samba is busy doing right now (I know because my company happens to participate in this effort). Mono will do the same with the future networked protocols from Microsoft: despite being a follower project, it already stands years ahead of the LongHorn schedule! So this is a definite "yes", and this is happening right now.

Complete interoperability as ilustrated in your steps iii. to v. is much more far-fetched, and I can see the following impediments to it:

  • GUI: F/OSS software is not traditionnally that good at ergonomics and client-side programming, and that's a playground where Microsoft actually has real know-how (IMHO Microsoft Excel is one really, really good piece of software in that respect - stolen ideas maybe, but good ones).
  • Featureset union: as another poster already pointed out, designing a good file format translator (or network protocol mesh) requires first sitting down and designing a n+1-th format / protocol whose featureset encompasses all the others (case in point: Unicode aims at encoding every character set ever actually used in written or electronic text on planet Earth). This is a lot of work esp. on something as complex and tailor-made as a groupware suite.
  • Motivation: remember, such a software development task has to scratch an itch on someone's back, because there aren't really that many sources of incentive in the F/OSS world except personal motivation (dozens of companies are busy tapping into the Linux-on-desktop market, but no whole-desktop, you-won't-need-Windows-anymore takeover has occured as of yet).
  • Why bother? Hackers generally don't do groupware anyway :-), and those who do would rather interoperate their productivity suite of choice with an open-source IM system (such as Jabber), a move which thanks to the openness and quality of the F/OSS infrastructure is likely to prove easier and cause lots of unexpected usefulness to magically appear for free. Historically, F/OSS has made the most significant progresses not by duplicating someone else's information system, but by creating new ones (the Internet itself, Usenet, the Web, more recently Wikis).
So I'm not saying that a completely Windows-compatible F/OSS productivity suite for Linux is not feasible or that it won't happen (wise professionals in this field make no forecasts :-) but it could be a long wait. Actually, KDE and Gnome can be seen as early moves in that general direction. As you point out, at the end of the day a commercial entity (even one embracing the F/OSS ideal as RedHat does) has no incentive whatsoever in offering plug-and-play-ness to its competitors (be it or not through F/OSS pipework as you suggest), and the F/OSS individual-programmer crowd is somewhat lacking in motivation.

So whence will the salvation come from?

  • a gov't-imposed regulations on open standards: probably not, as it still is too easy to fool a court of law with technicalities, and probably will stay so for a looong time.
  • one of the "big" F/OSS players such as the Apache Foundation: again, KDE, Gnome and the Mozilla suite are early steps in this direction in my view.
  • what about plain old market competition?

[ Reply to This | # ]

Disgusting
Authored by: StLawrence on Wednesday, December 08 2004 @ 11:44 AM EST
SCO's prior posts have been somewhat amusing in their
stupidity and arrogance. But this particular submission
is so over-the-top in their effort to twist and distort
reality. I wasn't amused as I read it -- I was just
disgusted.

This whole fiaSCO highlights how the Internet provides
massive visibility and exposure to corporate shenanigans.
Today, if a company makes a desparate and far-reaching
effort to manipulate or "game" the judicial system, they
run the risk of a PR nightmare. It used to be that the
worst that could happen was a rebuke by the judge. Today,
the company could easily become the laughingstock of their
industry, as The SCO Group has become.

What does "FUD" mean to you? Does it bring to mind
"fear, uncertainty & doubt?" Hardly. FUD is a new word
that means, simply, "falsehoods, untruths & deception."
When people think of SCO, they think FUD. When Balmer
opens his mouth to say something about Linux, everyone
thinks FUD. Even Microsoft fans have come to view
proclamations from Redmond through FUD-filters, because
Microsoft has been caught red-handed so many times
tangled in their mantle of falsehoods, untruths and
deception.

FUD is no longer an effective weapon of the non-innovators.
Once you've been branded a FUDster, you've been exposed
by the light of truth as someone who cannot be trusted.

Just my humble opinion...

[ Reply to This | # ]

  • Suggestion? - Authored by: Anonymous on Wednesday, December 08 2004 @ 12:41 PM EST
SCO's Reply Memorandum in Support of Motion For Stay in DC litigation - as text
Authored by: blacklight on Thursday, December 09 2004 @ 12:10 AM EST
"On November 8, 2004, SCO, by email, reiterated its request that DCX
reconsider a limited stay of proceedings, and in the alternative, forwarded a
proposal "Stipulated Order of Dismissal WIthout Prejudice and Without
Costs" for DCX's consideration" SCOG Pleading

So on January 11, the rest of SCOG's suit will get dismissed with prejudice and
SCOG will be assessed attorneys' fees unless SCOG manages to pull a rabbit out
of its hat and delay the proceedings. Throw in the text of a pleading like
SCOG's above, and I am sure that judge Chabot could find a way to make sure that
a vexatious litigant like SCOG will be suitably rewarded.

[ Reply to This | # ]

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