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Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete |
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Wednesday, February 09 2005 @ 02:15 PM EST
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Here at last is Kimball's ruling on the parties motions involving the contract claims and the kitchen sink motion SCO threw on top. SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims is denied. Period. Their 56(f) Motion is moot. But IBM did better. Here's the list of motions that were denied without prejudice, meaning they can renew or refile when discovery is complete, which I am sure they will:
- Motion for Partial Summary Judgment on Claim for Declaratory Judgment of Non-Infringement
- Motion for Partial Summary Judgment on SCO's Breach of Contract Claims
- Motion for Partial Summary Judgment on its Eighth Counterclaim for Copyright Infringement
The last two aren't even fully briefed and have not yet even been argued. So he's just decided that now is not the time for any dispositive motions. I think we have Judge Wells partly to thank for that, unfortunately, but also keep in mind that motions for summary judgment are decided while construing all facts and making reasonable inferences in the light most favorable to the non-moving party. Judge Kimball is bound by that rule, and so he's decided he wants a complete picture first. IBM's motion to strike materials was denied, because, he says, "the declarations do not pertain to the merits of IBM's motion". What does it all mean? That he's decided that he can't decide IBM's motions for partial summary judgment until all discovery is done, and he orders that nobody on either side is to file any more dispositive motions until then unless the parties stipulate that the claim is ripe for decision. It's hard to win partial summary judgments, but IBM almost did, and it's clear they will on renewal or refile, at least on the infringement counterclaim, unless SCO puts some evidence on the table. Meanwhile, IBM, by filing, has forced SCO to declare its position, and reveal its lack of evidence, and Judge Kimball has understood that part well. If IBM renews their motions, SCO has to submit brand new opposition papers. Or, if IBM elects, it can refile fresh, depending, I suppose, on what comes out in discovery. But as of today, it's clear he isn't leaning toward SCO in some important areas.
You'll like this part. On page ten, Judge Kimball writes:
"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities. Further SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights. "Nevertheless, despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment on IBM's Tenth Counterclaim." He resisted the strong temptation to rule favorably on IBM's Motion only, he writes, because he isn't positive yet that all you need to compare are the Linux kernel and the UNIX code. And he isn't yet persuaded that the discovery concerning AIX and Dynix is irrelevant to the question of whether code in Linux is substantially similar to code in UNIX. This is a very strong hint to SCO that unless they can come up with some evidence, they are dead in the water as far as Kimball is concerned on IBM's copyright counterclaim. As for the rest, their only hope, which is hanging by a thread at this point -- or a hope and a prayer -- is if they can somehow prove their ladder theory of copyright infringement. That is an uphill climb, if I may be allowed to put it that way. It's also obvious this judge isn't buying SCO's doublespeak. Read his scathing rejection of their "puzzling" denial that it had ever alleged a claim against IBM for copyright infringement arising out of its use, reproduction, or improvement of Linux. Kimball isn't buying what they are selling here, writing: ". . . it clearly has alleged such a claim."
He mentions repeatedly the elusive MIT consultants, quoting from Sontag, Stowell and Darl. All that bragging has come home to haunt them now. In short, it isn't over yet, but unless SCO can pull a rabbit out of its hat by the end of discovery, the handwriting is on the wall, and I'd say it's looking mighty fine for Linux. Meanwhile, the business world isn't impressed with SCO's claims and businesses appear willing to move forward with Linux no matter what. That article begins, "Linux has won the credibility game..."
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Authored by: Anonymous on Wednesday, February 09 2005 @ 02:34 PM EST |
EOM [ Reply to This | # ]
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Authored by: Greebo on Wednesday, February 09 2005 @ 02:35 PM EST |
Anything Interesting....
---
PJ has permission to use my posts for commercial use.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 02:37 PM EST |
All the other can be explained in terms of discovery being on-going. But why
was SCO's non-expert expert tesimony allowed?[ Reply to This | # ]
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Authored by: beast on Wednesday, February 09 2005 @ 02:48 PM EST |
page 4:
Notwithstanding SCO's puzzling denial in its briefing that it has not alleged a
claim against IBM for copyright infringement arising out of its use,
reproduction, or improvement of Linux, it clearly has alleged such a claim.
---
Delay is the deadliest form of denial. - C. Northcote Parkinson[ Reply to This | # ]
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Authored by: seanlynch on Wednesday, February 09 2005 @ 02:52 PM EST |
Wow!
Great news, and a great new sig too!
Thanks for the
update.
"Nevertheless, despite the vast disparity
between SCO's public accusations and its actual evidence -- or complete lack
thereof -- and the resulting temptation to grant IBM's motion, the court has
determined that it would be premature to grant summary judgment on IBM's Tenth
Counterclaim."
The Honorable Dale A. Kimball,
February 8th, 2005[ Reply to This | # ]
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- Am I crazy or is this a victory for SCO? - Authored by: Anonymous on Wednesday, February 09 2005 @ 03:12 PM EST
- Actual rulings in SCO's favor (mostly) but tone hints this will not continue - Authored by: Anonymous on Wednesday, February 09 2005 @ 03:19 PM EST
- No, it's a draw. - Authored by: Anonymous on Wednesday, February 09 2005 @ 04:02 PM EST
- No, it is not - Authored by: Anonymous on Wednesday, February 09 2005 @ 04:10 PM EST
- Yes, you're crazy. - Authored by: darkonc on Wednesday, February 09 2005 @ 05:10 PM EST
- 1 vote for crazy here - Authored by: Hop on Wednesday, February 09 2005 @ 05:24 PM EST
- Am I crazy or is this a victory for SCO? - Authored by: Anonymous on Wednesday, February 09 2005 @ 05:41 PM EST
- Am I crazy or is this a victory for SCO? Not really. - Authored by: Jaywalk on Wednesday, February 09 2005 @ 06:34 PM EST
- Am I crazy or is this a victory for SCO? - Authored by: froggy on Wednesday, February 09 2005 @ 07:10 PM EST
- Groklaw Impartial ? - Authored by: Anonymous on Wednesday, February 09 2005 @ 08:12 PM EST
- anonymous cowards - Authored by: Anonymous on Wednesday, February 09 2005 @ 10:40 PM EST
- SCO's only victory is further delay. - Authored by: Darth23 on Thursday, February 10 2005 @ 12:35 AM EST
- Am I crazy or is this a victory for SCO? - Authored by: jumpman on Thursday, February 10 2005 @ 02:41 AM EST
- Am I crazy or is this a victory for SCO? - Authored by: Anonymous on Thursday, February 10 2005 @ 04:29 AM EST
- Am I crazy or is this a victory for SCO? *NOT* - Authored by: Anonymous on Thursday, February 10 2005 @ 12:38 PM EST
- Kimball Rules on 5 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco - Authored by: Anonymous on Wednesday, February 09 2005 @ 06:09 PM EST
- Justice Delayed is Justice Denied - Authored by: Kevin Ross on Wednesday, February 09 2005 @ 06:26 PM EST
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Authored by: Christian on Wednesday, February 09 2005 @ 02:53 PM EST |
So the judges are talking to each other. Kimball says In
essence, the court agrees with the conclusions reached by the Magistrate Judge
in her Order Pertaining to SCO's Renewed Motion to Compel, dated January 18,
2005. The court has reviewed all of the briefing filed in connection with the
hearing held before the Magistrate Judge on October 19, 2004, and has reviewed
the transcript of that hearing.
We can presume that Kimball and
Wells did in fact discuss the rulings, and the ruling from Wells is in effect a
ruling from Kimball. If so, why were there the strange errors and dependency on
the Sontag declaration?
The judges have made clear that SCO has free rein to
do whatever it wants to disrupt the process. I don't understand this. [ Reply to This | # ]
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Authored by: NemesisNL on Wednesday, February 09 2005 @ 03:01 PM EST |
More delay and time to draw this out. Sure the words were harsh, sure there
isn't much left of their case.....just like it was 6 months a go. Want to bet
the discovery deadline will be extended?
SCO isn't in this to win it and it hasn't been for a long time. They just want
to get IBM to the negotiation table and settle.
So basically.... the longer this lasts the more trouble and loss of money it
causes IBM. Sco surely thinks there will come a point when even IBM has to draw
up the balance and decide it's cheaper to settle.
[ Reply to This | # ]
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- The 3 SCO's - Authored by: Anonymous on Wednesday, February 09 2005 @ 03:16 PM EST
- And again SCO get's what it wants - Authored by: bliss on Wednesday, February 09 2005 @ 03:29 PM EST
- SCO get's what it wants -- not exactly - Authored by: Anonymous on Wednesday, February 09 2005 @ 04:10 PM EST
- Extending discovery - Authored by: codswallop on Wednesday, February 09 2005 @ 04:36 PM EST
- Settle? R U on drugs? - Authored by: Anonymous on Wednesday, February 09 2005 @ 05:08 PM EST
- And again SCO get's what it wants - Authored by: Anonymous on Wednesday, February 09 2005 @ 05:51 PM EST
- Will We Wait 25,000 ManYears? n/t - Authored by: Anonymous on Wednesday, February 09 2005 @ 06:13 PM EST
- Not yet. - Authored by: Jaywalk on Wednesday, February 09 2005 @ 06:42 PM EST
- And again SCO get's what it wants - Authored by: Shakyrie on Wednesday, February 09 2005 @ 11:41 PM EST
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Authored by: Anonymous on Wednesday, February 09 2005 @ 03:14 PM EST |
Kimball has seen through SCO completely. He is only making sure that SCO's one
game delay, delay, delay doesnt get another delay by a lenghty appeal. It is
clear to all (including SCO) that this is so lost. All SCO tries to do now is
get any ground for an appeal. Kimbal isnt giving it to them.[ Reply to This | # ]
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Authored by: DWH on Wednesday, February 09 2005 @ 03:16 PM EST |
"The court assumes that SCO was prepared to prosecute its claim in the
AutoZone case or it would not have filed suit"
That's a pretty big assumption!![ Reply to This | # ]
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Authored by: Christian on Wednesday, February 09 2005 @ 03:17 PM EST |
On a related matter, having become more familiar with the nature of
the motions and discovery sought in this case, and although it is contrary to
the court's general practice, the court hereby orders that no dispositive
motions be filed until the close of discovery.
Emphasis added.
This seems to me to be a slap at IBM. Kimball sounds annoyed that he was forced
to become "familiar" with the case in order to make these rulings, and he wants
IBM to stop bothering him with motions. I would have thought that he welcomed
the PSJs, because they would have let him simplify the case and clarify the
issues.
The judges are admitting that they have messed up the case. They
denied SCO's ridiculous discovery requests until the very end of discovery, and
then granted them with no justification. Wells could have given SCO the
revision information a year ago. Kimball could have made these rulings from the
bench at the hearing, or denied them before a hearing as he did with some of
IBM's motions. Either they blew it, or there's a secret plan. What? [ Reply to This | # ]
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Authored by: blacklight on Wednesday, February 09 2005 @ 03:18 PM EST |
"Viewed against the backdrop of SCO's plethora of public statements
concerning IBM's and others' infringement of SCO's purported copyrights to the
UNIX software, it is astonishing that SCO has not offered any competent evidence
to create a disputed fact regarding whether IBM has infringed SCO's alleged
copyrights through IBM's Linux activities."
In what way does judge Kimball's conclusion differs from the groklaw community's
analysis? Answer: none - He read the filings of all of the parties, unlike a
certain magistrate judge called Welles whose name I will not mention to save her
any embarassment.
"Further SCO, in its briefing, chose to cavalierly ignore IBM's claims that
SCO could not create a disputed fact regarding whether it even owned the
relevant copyrights."
In other words, judge Kimball is definitely concerned about this trivial issue:
even I could figure out that I don't have the right to sue for copyright
violations if I don't own those copyrights.
"Nevertheless, despite the vast disparity between SCO's public accusations
and its actual evidence -- or complete lack thereof -- and the resulting
temptation to grant IBM's motion, the court has determined that it would be
premature to grant summary judgment on IBM's Tenth Counterclaim."
Too bad: judge Kimball makes two findings that SCOG comes up short, but then
shrinks back from the obvious conclusion and the course of action that is to
follow: grant IBM the PSJ. On the other hand, it's only a matter of time before
the SCOG chicken gets turned into a chicken sandwich.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 03:29 PM EST |
In essence, the court agrees with the conclusions reached by the Magistrate
Judge in her Order Pertaining to SCO's Renewed Motion to Compel, dated January
18, 2005. The court has reviewed all of the briefing in connection with the
hearing held before the Magistrate Judge on October 19, 2004, and has reviewed
the transcript of that hearing. In making this determination, however, the
court does not intend to foreclose entirely IBM's ability to object to the
Order.
That footnote seems slightly ominous. It suggests that IBM will
have a more difficult job to fight the discovery order than I'd hoped after PJ's
recent article. (There is far more ominousity for SCO in the judgement, in the
parts that Pamela has quoted, but the curtailment of SCO's near infinite
discovery request does seem to be in jeopardy.) [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 03:29 PM EST |
The PSJ's are postponed at a minimum, and SCO gets the ultimate fishing
expedition.
There's no requirement for them to show their evidence yet, unless they felt
compelled. That is what the trial will be for, and it appears there WILL be
one, unless IBM settles.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 03:29 PM EST |
In essence, the court agrees with the conclusions reached by the Magistrate
Judge in her Order Pertaining to SCO's Renewed Motion to Compel, dated January
18, 2005. The court has reviewed all of the briefing in connection with the
hearing held before the Magistrate Judge on October 19, 2004, and has reviewed
the transcript of that hearing. In making this determination, however, the
court does not intend to foreclose entirely IBM's ability to object to the
Order.
That footnote seems slightly ominous. It suggests that IBM will
have a more difficult job to fight the discovery order than I'd hoped after PJ's
recent article. (There is far more ominousity for SCO in the judgement, in the
parts that Pamela has quoted, but the curtailment of SCO's near infinite
discovery request does seem to be in jeopardy.)
John Macdonald [ Reply to This | # ]
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Authored by: eggplant37 on Wednesday, February 09 2005 @ 03:33 PM EST |
Grin... this just brightened up what seemed to me to be a dismal day... I just
got back on Monday from a trip to Ft Lauderdale to put on a conference for a
group of doctors, which turned out well but was exhausting to set up and keep
the cats herded.
I've been waiting to see what happens, and from my own read of what both sides
have submitted over the past six months, SCO definitely is a dead duck.
Anyone want to take bets on what happens first: Evidence that is worth
something comes out of discovery, or SCO runs out of cash to stay afloat?[ Reply to This | # ]
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Authored by: Nivuahc on Wednesday, February 09 2005 @ 03:33 PM EST |
The Judge said:
The court will not entertain any dispositive
motions until after discovery is complete, unless both parties stipulate that
resolution of the motion is possible prior to the close of
discovery.
Huh?
IANAL and all of that. Someone please
'splain.
--- My Doctor says I have A.D.D... He just doesn't understand.
It's not like... Hey! Look at that chicken! [ Reply to This | # ]
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Authored by: rsteinmetz70112 on Wednesday, February 09 2005 @ 03:34 PM EST |
Kimball has, I think, figured out SCOG's game.
He is, I believe, signaling that at the close of discovery he might be favorably
disposed to some of IBM's motions. He has in essence told SCOG, 'Here you go we
will give you discovery but you had better put up or shut up.' He has also
'taken judicial notice' of the disparity between SCOG's public statements and
the evidence submitted to the court. He has also noticed that even when ordered
by the court and invited by IBM they have failed to show they have any evidence.
This is great news for IBM's counterclaims.
Discovery will be extended but it will close in a few months then we will have
another round of motions, which may well destroy SCOG's case, unless Mean Mister
Mustard does that first.
---
Rsteinmetz
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk[ Reply to This | # ]
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Authored by: DarlingMcBribe on Wednesday, February 09 2005 @ 03:43 PM EST |
I would call it a beautiful spin, indeed!
In case you haven't
noticed, all those PSJ you've been waiting for
several months to be granted
for IBM have been denied. So
no distraction of SCO's case in sight,
full-blown delay is back in
business stronger than ever!
When
I said that SCO's good-old tactic is
working against Judge Wells
when asking an arm and a leg in discovery - to
get more effective
delay, you all said wait until the she responds. When
she
responded granting almost everything to SCO, you said she
was either
mistaken or had some hidden purpose.
Now, when the judgement comes
down on IBM's PSJs - denying
them all, you again try to spin it as something
positive for IBM and negative for SCO. When will you realize that SCO
is
actually winning this game against all odds and facts?
--- IANAL,
IANAG, IARASC (I am running a software company)
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 03:57 PM EST |
Like this one starting at the bottom of page 3:
Thus, SCO claims
that IBM's Tenth Counterclaim is redundant and unnecessary because the copyright
issues are the crux of the Autozone litigation. Therefore, SCO contends, "the
need for IBM's Tenth Counterclaim seeking such declaratory judgement is nil."
SCO's Mem. in Supp. at 3.
However, SCO subsequently abandoned the
argument, that this court should dismiss or stay the Tenth Counterclaim to
allow the Autozone court to decide the issue, presumably because the United
States District Court for the District of Nevada, the court in which the
AutoZone suit is pending, stayed that action pending resolution of the instant
action.
(emphasis mine).[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 04:01 PM EST |
despite the tone of *some* of Kimball's remarks,
this is what SCO wanted. Make no mistake, SCO
will find more money if it needs it to extend
the legal battle.
Bottom line, after Wells and Kimball:
SCO 2, IBM 0.
Let's hope the second quarter goes more IBM's way. [ Reply to This | # ]
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Authored by: meshuggeneh on Wednesday, February 09 2005 @ 04:03 PM EST |
Kimball berates SCOX lawyers for ignoring IBM's assertion of SCOX's failure to
create a disputed fact regarding IBM's copyright infringements (show they own
the copyrights)
He then denies IBMs PSJ because doing so would "remove part of their
claim" against IBM.
He is not going to let SCOX forget they made copyright infringement assertions.
What could this mean for SCOX when they are unable to demonstrate this?
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 04:17 PM EST |
How many courts must this case pass through
Before we can clear our name?
Yes, 'n' how many people will SCO get to sue
Before they are forced to refrain?
Yes, 'n' how many times will SCO file for delay
Before judges see through their game
The answer, my friend, is blowin' in the wind,
The answer is blowin' in the wind.
How years will the magistrate judge
Allow discovery to drag on?
Yes, 'n' how many lawyers will play with the law
Before all SCOs money is gone?
Yes, 'n' how many times must I scan through Groklaw
Before I will see justice done?
The answer, my friend, is blowin' in the wind,
The answer is blowin' in the wind.[ Reply to This | # ]
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Authored by: jdg on Wednesday, February 09 2005 @ 04:23 PM EST |
One of the key strategy elements for IBM was to file several PSJs that were
aimed at flushing out SCOG's evidence and strategy. IBM knew there was not
going to be much that actually looked like evidence. They needed the
marketplace (for Linux, IBM's reputation) to understand that SCOG has little to
present. For instance, the MIT ... etc., which got the market excited and
boosted the SCOX price, do not exist and that SCOG was pulling wool over
people's eyes.
SCOG's strategy is to show as little as possible in the discovery process and
drag its feet. This strategy has worked for some purposes, such as keep the
case and uncertainty going. It seems that the uncertainty should diminish
some.
How will SCOG report the comments of the judge to the Deleware court? Red Hat
will certainly hammer these comments and push to start up its suit, but IANAL.
---
SCO is trying to appropriate the "commons"; don't let them [IANAL][ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 04:26 PM EST |
Just read the qualifications:
IBM -> Premature
SCO -> Incomprehensible, astonishing, complete lack of evidence.
After discovery SCO is toast.[ Reply to This | # ]
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Authored by: geoff lane on Wednesday, February 09 2005 @ 04:28 PM EST |
At this point, IBM gives TSG all the code they want and politely asks,
"When can we expect an answer?"
Now TSG has a huge problem. They cannot afford to do a proper structural
analysis of the vast amount of source code necessary to back up their claim of
"non-literal" copying. But they cannot delay the case too much
otherwise they run out of money anyway.
The court isn't going to wait forever so I guess TSG will
make a minimal attempt to grep for "smoking gun" comments
and then attempt to move the case into a different area.
Perhaps they will employ Carly Fiorina :-)
---
Not using the GPL is not a character flaw.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 04:33 PM EST |
Well... if part of SCOG's purpose for this suit was to
sew fear, uncertainty
and doubt, they have one final
chance that I can see. Personally I think
that's
potentially one of the motives, personal greed being a
strong factor as
well. As near as I can see it:
- If SCOG can delay discovery
- And burn through the available cash fast enough
Then
- SCOG goes
bankrupt
I'm not altogether sure what happens at that point, but if
the situation is such that the case dissipates with no
ruling then others have
the chance to use that as
potential feed for more FUD. Example: they would
have
succeeded had they but a little more cash
Personally, I hope SCOGs
funds carry them through the
end of discovery. If they go bankrupt after that,
I hope
the Judge has enough to declare a ruling rather then
letting the case
dissipate.
RS [ Reply to This | # ]
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Authored by: Jude on Wednesday, February 09 2005 @ 04:34 PM EST |
SCO: Your honor, we've looked through the billions of lines of source
code
and programmer notes that IBM gave us, and we *still* can't find
the
document titled "IBM Master Plan for Stealing Unix".
It's obvious
that IBM is still withholding essential discovery materials, so we
need
unfettered access to IBM's systems, and a license to ransack their
corporate
headquarters.
[ Reply to This | # ]
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Authored by: GJ on Wednesday, February 09 2005 @ 04:37 PM EST |
Is Judge Kimball telling IBM in a round about way to make an issue of SCO not
fulfulling discovery with regards to showing the offending code they say they
have already ?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 04:47 PM EST |
What's going on? This doesn't seem like a good thing for IBM. The ruling seems
to reflect, rather than contradict, Judge Wells' thinking. Is Discovery where
this all ends?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 04:52 PM EST |
And now starts the beginning of the end for SCO. Because we in the computer
"real world" know the chances that SCO comes up with a smoking gun in
all that old AIX and Dynx code are next to nothing. And even if a "smoking
gun" appears, they would have to prove they own the copyrights. And the
last I saw of that case. There is very little chance they can sue anybody of
Unix witout Novell buying off on the project even if they own the Copyrights and
that is even in dispute.
Well well... Maybe the is in site this year.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 04:55 PM EST |
What's going on? This doesn't seem like a good thing for IBM. The ruling seems
to reflect, rather than contradict, Judge Wells' thinking. Come on PJ, give us
the spin...you should have a little more free time on your hands now. ;)[ Reply to This | # ]
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Authored by: Nivuahc on Wednesday, February 09 2005 @ 04:56 PM EST |
People keep making comments about how, eventually, SCO are going to run out of
money and I'm a little confused.
Admittedly, I can be scatter-brained at
times (see my sig), but I seem to recall that Boise-and-boys put a cap on their
legal fees and I understood that to mean that SCO would have to pay XX amount of
dollars and that was it. Anything after that would be on Boise's nickel.
Did
I screw that up?
--- My Doctor says I have A.D.D... He just doesn't
understand. It's not like... Hey! Look at that chicken! [ Reply to This | # ]
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Authored by: jbb on Wednesday, February 09 2005 @ 05:08 PM EST |
... How long will the judges let discovery drag on?
The big loss for IBM (and the rest of the world) in these rulings is the
judge saying that he accepts SCOg's ladder theory of possible
infringement. Even though SCOg said it would take them 25,000
years to analyze the code that IBM has already given them and now
they are going to be granted literally truckloads more code to sift
through.
If it takes IBM about a month just to produce this information, then it
would be reasonable to give SGOg a year or more to sift through it.
This then gives SCOg another year to encourage FOSS foes to
contribute to their cause.
Unfortunately, to rational programmers who have been following this
case, the judges seem to have proven themselves to be unreasonable
and unreliable. I don't think they are stupid but perhaps they are
numerically illiterate and didn't realize that dealing with a billion lines
of code is qualitatively different from dealing with a million lines of
code.
The nub of the problem is that SCOg lied about the extra code making
the process of finding infringement easier. Let:
U = # of lines in Sys V,
L = # of lines in Linux
A = # of lines in AIX discovery
The original (25,000 SGOg year) problem was of order:
U x L, or at worst U x A.
The judges, by agreeing with the ladder theory and by granting the
discovery of vast wads of "intermediate" code have implicitly given
SCOg permission to work on a problem that is sized:
U x A x L
or even,
U x A x A x A ... x L
In order for discovery to end within our lifetimes, the judges are going
to have to reverse their own decisions which will be embarassing.
---
SCO cannot violate the covenants that led to and underlie Linux without
forfeiting the benefits those covenants confer.[ Reply to This | # ]
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- The big question is ... - Authored by: PJ on Wednesday, February 09 2005 @ 05:19 PM EST
- The big question is ... - Authored by: jmc on Wednesday, February 09 2005 @ 05:55 PM EST
- We agree - Authored by: Anonymous on Wednesday, February 09 2005 @ 06:09 PM EST
- We agree - Authored by: Ninthwave on Wednesday, February 09 2005 @ 06:51 PM EST
- Beauty? - Authored by: Christian on Wednesday, February 09 2005 @ 08:53 PM EST
- Beauty? - Authored by: PJ on Wednesday, February 09 2005 @ 09:53 PM EST
- Thoughts - Authored by: Anonymous on Wednesday, February 09 2005 @ 06:06 PM EST
- One More Thought - Authored by: Anonymous on Wednesday, February 09 2005 @ 06:39 PM EST
- Thoughts - Authored by: Steve Martin on Wednesday, February 09 2005 @ 08:23 PM EST
- Thoughts - Authored by: Anonymous on Thursday, February 10 2005 @ 06:01 AM EST
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Authored by: Anonymous on Wednesday, February 09 2005 @ 05:12 PM EST |
Goethe said it all. [ Reply to This | # ]
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Authored by: jaydee on Wednesday, February 09 2005 @ 05:23 PM EST |
To TSG:
You can have lots of discovery, but you better produce evidence of infringement
or you are toast.
To IBM:
ALthough I'd love to just grant your PSJ's etc and get this crazyness off my
desk, they'd just appeal and at this point could win, so wait awhile.
As far as the discovery on all iterations of AIX and Dynix. I suspect that even
if, as seems likely, TSG get access to this code, the judge will be looking for
clear evidence of infringement... after all TSG are not the only side that can
appeal.
---
Micro$oft. What's broken today?[ Reply to This | # ]
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Authored by: jaydee on Wednesday, February 09 2005 @ 05:40 PM EST |
From somebody called
"alanyst"
Footnote 5 elaborates on Kimball's reasoning here. He
cites Liu v. Price Waterhouse LLP as establishing that "copyright infringement
could result from improper use of derivative works" and states that the question
of infringement may depend on the contract issues.
The Liu v. Price
Waterhouse case decision (appellate court) may be found at
http://www.bowie-jensen.com/liucase.html .
(Did SCO or IBM cite this case?) That
case hinged on whether the authorized preparers of a derivative work
automatically have ownership of the copyright to that derivative work. IANAL,
but the appellate decision seems to be that although the Copyright Act grants
that ownership by default, the contract between the original copyright holders
and the preparers of the derivative work can override those ownership rights,
allowing the original copyright holders to assume control over the derivative
work.
So, it appears that Kimball's reasoning is that the contracts
governing IBM's use of the UNIX source code could potentially preclude IBM from
copying from the derivative works it prepared (i.e., AIX and Dynix) into Linux
-- but since the contract claims have not been adjudicated, this possible vector
of infringement cannot be ruled out.
--- Micro$oft. What's broken
today? [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 05:50 PM EST |
I can see IBM appealing the discovery to the 10th now and using Kimball's
decision to strengthen their argument. Perhaps he knew IBM was gonna do this and
let the 10th kill the descovery to kill off any chances of a later SCO appeal.
It looks to me like Kimball all but told IBM to appeal the discovery to the
10th.[ Reply to This | # ]
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- Prediction - Authored by: Anonymous on Thursday, February 10 2005 @ 12:29 AM EST
|
Authored by: Anonymous on Wednesday, February 09 2005 @ 06:15 PM EST |
This will sound stupid, but not more so than the decisions being handed down
by the judges in this case...
SCO has already provided a declaration
that it would take 25,000 man years to compare the code IBM has
already given SCO. I can't envision a scenario in which SCO would
not object to any near term end or mid-term end of fact discovery, based on this
ridiculous declaration by SCO.
As much as I hate to admit it, SCO got
exactly what they wanted today. The judges have bent over backwards to not step
on SCO's rights... What about IBM's rights?
What about Magistrate Wells'
first disovery ruling that said SCO could ask for more code if they found
something in the existing discovery materials that IBM provided? SCO admits that
they haven't even reviewed the code IBM already handed over and Wells gives them
a butt-load more code???
I can say now, more than ever, that I'm glad
I'm not associated with the legal profession in the United States. The whole
system is horribly broken and it's unlikely that the system will ever correct
itself because the only people that win in this mess are the legal professionals
themselves.
Scumbags like McBride and Yarrow know this all too well...
If you have the money, you can't lose by suing someone. Heck, you don't even
have to be right to win, as SCO has demonstrated in this case. SCO has succeeded
in its goal of creating FUD surrounding Linux, period. SCO has probably already
exceeded its expectations, because I doubt they ever dreamed they could drag
this mess out two years without a shred of evidence.
I have no doubt
that IBM will eventually win this mess, but that doesn't mean that SCO didn't
accomplish exactly what it set out to do.
Signed,
Disgusted [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 07:04 PM EST |
What about this for a nifty solution:
(1) the Autozone suit is stayed until resolution of this (instant) action.
(2) this (instant?) action is stayed until resolution of the Autozone suit.
Then everyone goes home happy. No more discovery, no more briefs, no more
limitations. SCO gets out from under a failing lawsuit, IBM stops burning money
without possibility of recouping costs. Everyone's happy.[ Reply to This | # ]
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Authored by: grouch on Wednesday, February 09 2005 @ 07:45 PM EST |
Just from my (untrained) reading of the PDF, it looks like everything hinges on
the Magistrate Judge's ruling on discovery. If IBM can't get that straightened
out, it looks to me like this case is dead and everything starts over in an
appeals court.
Somebody please show me I'm wrong!
---
"The power of the Web is in its universality. Access by everyone regardless of
disability is an essential aspect." -- Tim Berners-Lee, inventor of the WWW[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 07:49 PM EST |
Did anyone else catch this from Judge Kimball?
"it is astonishing that SCO has not offered any COMPETENT evidence to
create a disputed fact" [capitals mine].
It seems to me that he didn't believe that the depositions and statements
offered by the SCO lackeys were competent (in the legal sense), ie., from
personal knowledge, training, and so on.
[ Reply to This | # ]
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Authored by: WildCode on Wednesday, February 09 2005 @ 08:02 PM EST |
After reading the ruling, I couldn't help but wonder how SCO and
"other" people could turn this around in SCO's favor.
What I come up with is SCO telling only part of the truth, like "IBM looses
summary judgement: IBM today lost its argument that no UNIX source was in linux
after the judge ruled that he could not determine that IBM infact didn't breach
copyright laws by using source code from UNIX derivatives (AIX and Dynix) and
placing it into linux.
The judge also rejected IBM's claims that several depositions obtained by SCO
were hearsay and therefore inadmissable, stating that they were admissable under
rule FRCP56(f)."
How do you think SCO PR Machine and those "other" sites could turn
this ruling around in SCO's favor.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 08:13 PM EST |
If I were representing IBM I might want to throw this one, but then again IANAL
and they would never offend any of the Judges:
"Further the Magistrate Judge, in her Order Pertaining to SCO's Renewed
Motion to Compel, chose to cavalierly ignore IBM's arguments of undue
burden."
./ Kristoffer[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 08:37 PM EST |
Note the following in the Liu v. Price Waterhouse LLP
case:
Further, obtaining copyright protection in the
derivative work was beyond the scope of the permissible uses authorized by the
June 7, 1995 letter agreement. See 1 NIMMER ON COPYRIGHT §3.06, at 3-34.26 at
26(1) (2002) ("[T]he right to claim copyright in a noninfringing derivative
work arises by operation of law, not through authority from the copyright owner
of the underlying work. Nonetheless, if the pertinent agreement between the
parties affirmatively bars the licensee from obtaining copyright protection even
in a licensed derivative work, that contractual provision would appear to
govern.") (emphasis added); see also Gracen v. Bradford Exch., 698 F.2d 300,
303 [217 USPQ 1294] (7th Cir. 1983) (stating that "[e]ven if [Gracen] was
authorized to exhibit her derivative works, she may not have been authorized to
copyright them").
This is going to be the crux of the
matter here - did the AT&T licence to IBM in fact:
- Assign
copyrights of contributions to IBM; or
- Assign the copyrights of
contributions to AT&T
Notwithstanding the above, SCO would
also have to prove that if 2, they also own the copyrights that have been
supposedly assigned to AT&T.
Given what we know about the APA
between Novell and SCO and what we know about the side-letter between AT&T
and IBM, I would think there should be no trouble for IBM. The judge appears to
be covering all the bases to avoid a successful appeal by SCO. [ Reply to This | # ]
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Authored by: WildCode on Wednesday, February 09 2005 @ 08:56 PM EST |
IANAL, so I am wondering
If SCO do not produce the "smoking gun" in discovery, can they produce
it at trial? Afterall, SCO has said all along they wanted a jury to see the
evidence and decide for themselves.
Has IBM specifically asked for the evidence of copyright infringement? I've seen
statements that IBM have been trying to get SCO to show what they have, but have
they asked specifically for it?
It also appears that the judge has given SCO a direction the could go in,
specifically the " Liu v. Price Waterhouse" case (sorry if I misquoted
the case title), where it appears that the judge is showing that all SCO needs
to prove is that the licence didn't give copyrights of derivative works to the
licencee. This would then make any code from AIX/Dynix (C) SCO and show that any
of that code that made it into linux was missappropriated.
IBM could counter that by trying to show that SCO doesn't own the copyrights,
but isn't that what the Novell vs SCO case is about yet its on hold due to IBM
vs SCO.
To me it appears that SCO has gotten part of what they wanted, confusion in the
legal system. Novell vs SCO should be going forward, as the result may effect
all the cases SCO has before the courts.[ Reply to This | # ]
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Authored by: Flower on Wednesday, February 09 2005 @ 09:00 PM EST |
Here are the links to what I think are the relevent decisions. IANAPL and don't
completely understand how the cites work. No complaints if I got the wrong
decisions. Any suggestions/corrections are deeply appreciated. :)
--- You make me out to be responsible for your
self-inflicted misery. - "Faceless" Godsmack [ Reply to This | # ]
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Authored by: cjdj on Wednesday, February 09 2005 @ 09:28 PM EST |
Yes, I too feel that SCO got more from this ruling than
they should have, but lets not blow this too out of
proportion. The only thing left in this case, either in
the court room, or in public opinion, is a contract
dispute between two companies.
The FUD has been dramatically shot down, and if anything,
helped linux and open-source because so many more people
have become aware of it, and surprisingly seem to
understand it.
Copyright code in linux? If by some chance the court
finds that IBM did contribute code to linux that it
shouldnt have, that doesnt amount to much at all. The
sco-source scam was shot down. After autozone and DCC, no
corporation is falling for that racket. No corporation
that matters anyway. In order to actually find that IBM
contributed code, at some point in the trial, that code
would have to become known. To IBM at the very least
anyway, and it can promptly be replaced. Its already been
noted that none of the IBM contributions could kill linux
if they suddenly had to be yanked out.
So, everything that is left, is simply SCO trying to get
some damages from IBM.
Not to say that this isnt an incredibly entertaining thing
to watch, [ Reply to This | # ]
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Authored by: John Hasler on Wednesday, February 09 2005 @ 09:40 PM EST |
> If IBM's renews their motions, SCO has to submit brand new
> opposition papers. Or, if IBM elects, it can refile fresh,
And that's an advanatage for IBM: they can, if they so choose, write new
documents taking into account everything that has happened since they first
filed.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 10:22 PM EST |
This is a really strange situation.
While SCO is fighting IBM, everyone in Canopy and below were moving stuff around
and pocketing cash. Now that appears to be over, as there is not much to pick
off of SCO and Canopy has fired and implied Yarro as responsible for at least
some of it.
Now Canopy is left with the shell of SCO. SCO is a ruined company that could be
right now #3 in Linux or would have been bought by Novell instead of SuSE.
On top of that, the behavior of SCO has allowed many meritable suits to threaten
Canopy directly(its stake size in SCO makes the corporate veil almost
non-existant). That 5 billion quote can come back on them directly.
Darl does have a rep for going after his bosses, maybe Yarro picked him for
this?
My question is: Did Noorda do something to Yarro? This appears to be more than
just skimming money/shares. It seems deliberate and malicious like revenge of
some sort.[ Reply to This | # ]
|
- Yarro the fall guy? - Authored by: Anonymous on Wednesday, February 09 2005 @ 11:22 PM EST
- Yarro the fall guy? - Authored by: Anonymous on Thursday, February 10 2005 @ 12:39 AM EST
- Nope, not likely - Authored by: Anonymous on Thursday, February 10 2005 @ 12:48 AM EST
- Nope, not likely - Authored by: Anonymous on Thursday, February 10 2005 @ 06:16 AM EST
|
Authored by: Anonymous on Wednesday, February 09 2005 @ 10:36 PM EST |
In my view, this is the second time Kimball has asked SCO, "where's the
beef?" The first time, it was the initial Novell ruling.
Kimball is now on record in both cases as questioning SCO's merits. His use of
pejoratives this time is especially telling ("astonishing",
"puzzling").
So, it seems as if Kimball has ruled against SCO in both cases without actually
doing so. SCO escapes with the "most favorable to the non-movant"
technicality. And that's how the world sees SCO now, surviving on technicalities
-- not very intimidating.
I think the positions of IBM and SCO have reversed in two years. SCO's stock
price collapse shows this. Delay now favors IBM and Linux, because there hasn't
been, and won't be in the foreseeable future, any adverse ruling to Linux, as
long as SCO drags it out. Uncertainty at first favored SCO. Now it favors
Linux.
Also, has SCO's mud dirtied Microsoft, too? Will any Microsoft patent claim
carry the weight it might have before SCO failed to win a quick, clear victory
against IBM? I would guess the business community believes IBM will be in that
fight, too.
[ Reply to This | # ]
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Authored by: jim Reiter on Wednesday, February 09 2005 @ 10:58 PM EST |
Read note #3. "SCO has to prove its ownership of the Copyrights in
question." Is there a question in the Judges mind?
MY FAVORITE QUESTION IS WHAT DOES TSG OWN AND HOW DID IT (TSG) COME TO OWN IT?
It could be Judge Kimball's favorite question also.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, February 09 2005 @ 11:01 PM EST |
My summary of Judge Kimball's order:
There was a crooked corporation, bringing a crooked lawsuit spoof.
Showed crooked IP infringement with crooked facts and proofs.
Crooked press releases, crooked letters by crooked corporate hams.
And they all fell together with their little crooked scam.[ Reply to This | # ]
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Authored by: icebarron on Wednesday, February 09 2005 @ 11:11 PM EST |
My friends, google can truly be your friend. A gentleman I know who wishes to
remain nameless sent me the following email (edited for fair use...) from a book
called "Disorder in The American Courts." Can you imagine the self control of A
Judge and the courts reporter when having to listen and transcibe the
following:
Q: Are you sexually active?
A: No, I just lie
there.
Q: What is your date of birth?
A: July 15th
Q: What
year?
A: Every year.
Q: What gear were you in at the moment of the
impact?
A: Gucci sweats and Reeboks.
Q: This myasthenia gravis, does
it affect your memory
at all?
A: Yes.
Q: And in what ways does it affect
your memory?
A: I forget.
Q: You forget? Can you give us an example of
something that you've forgotten?
Q: How old is your son, the one living
with you?
A: Thirty-eight or thirty-five, I can't remember
which.
Q:
How long has he lived with you?
A: Forty-five years.
Q: What was the
first thing your husband said to you
when he woke up that morning?
A: He
said, "Where am I, Cathy?"
Q: And why did that upset you?
A: My name is
Susan.
Q: Do you know if your daughter has ever been
involved in
voodoo or the occult?
A: We both do.
Q: Voodoo?
A: We do.
Q: You
do?
A: Yes, voodoo.
Q: Now doctor, isn't it true that when a person
dies
in his sleep, he doesn't know about it until the next
morning?
A: Did you actually pass the bar exam?
Q: The youngest son,
the twenty-year-old, how old is
he?
Q: Were you present when your
picture was taken?
Q: So the date of conception (of the baby) was
August 8th?
A: Yes.
Q: And what were you doing at that time?
Q:
She had three children, right?
A: Yes.
Q: How many were boys?
A:
None.
Q: Were there any girls?
Q: How was your first marriage
terminated?
A: By death.
Q: And by whose death was it
terminated?
Q: Can you describe the individual?
A: He was about
medium height and had a beard.
Q: Was this a male, or a female?
Q:
Is your appearance here this morning pursuant to a
deposition notice which I
sent to your attorney?
A: No, this is how I dress when I go to
work.
Q: Doctor, how many autopsies have you performed on
dead
people?
A: All my autopsies are performed on dead people.
Q: ALL
your responses MUST be oral, OK? What school
did you go to?
A:
Oral.
Q: Do you recall the time that you examined the body?
A: The
autopsy started around 8:30 p.m.
Q: And Mr. Dennington was dead at the
time?
A: No, he was sitting on the table wondering why I
was doing an
autopsy.
Q: Are you qualified to give a urine sample?
Q: Doctor,
before you performed the autopsy, did you
check for a pulse?
A:
No.
Q: Did you check for blood pressure?
A: No.
Q: Did you check for
breathing?
A: No.
Q: So, then it is possible that the patient was alive
when you began the autopsy?
A: No.
Q: How can you be so sure,
Doctor?
A: Because his brain was sitting in a jar on my desk.
Q: But
could the patient have still been alive,
nevertheless?
A: Yes, it is
possible that he could have been alive
and practicing
law
Please Ladies and Gents, the Judges involved in this case
deal with alot more than just sco/IBM! There will be alot more to celebrate in
the weeks to come...I sense it in my crystal wine goblet...
Peace to
one and all...
:-/
Dan [ Reply to This | # ]
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- too much - Authored by: Anonymous on Thursday, February 10 2005 @ 12:00 AM EST
- There's an Off Topic thread for this - Authored by: Anonymous on Thursday, February 10 2005 @ 04:02 AM EST
- No C&C - Authored by: Anonymous on Friday, February 11 2005 @ 07:33 PM EST
|
Authored by: webster on Wednesday, February 09 2005 @ 11:23 PM EST |
1. IBM must be pleased at the Denial and reasoning therefore of SCO's
Motion to dismiss or stay the Tenth Counterclaim: "...it is
incomprehensible that SCO seeks to postpone resolution of this claim."
The Judge promises to do better after discovery.
2. IBM has to be disappointed that the Court did not take the bait and
grant the PSJ on Infringement. This despite the Court's thinking the following:
"[I]t is astonishing that SCO has not offered any competent evidence to
create a disputed fact regarding whether IBM has infringed SCO's alleged
copyrights through IBM's Linux activities." How can he say that and deny
the motion? Too bad they can't appeal this and throw the Judge's words at the
Court of Appeals. Actually if they appeal the discovery ruling, that is in
effect what they will be doing, demanding consistency from the Judges. SCO did
not snatch victory here from the jaws of defeat. The jaws are still open and
they haven't moved, but nothing dispositive happened so they are ecstatic.
These past few months of dreading the mail or the fax are over. Spring is
coming early to Utah. Nothing dispositive is in the works. They can trudge on
toward the cap. Overlength memos have won the day!
3. Previous suspicions that Kimball and Wells are working together have been
confirmed. Let's hope that she has contaminated him on these contract areas.
Let's hope he didn't confuse the issues himself. It is with utter dismay that
we must contemplate how obtuse Their Honors have become on the contract and
copyright distinctions:
"...Counterclaim depends, at least in part, on the resolution of
SCO's contract claims. It appears to the court that this motion must be decided
either contemporaneously with or subsequent to resolution of SCO's breach of
contract claims."
The Copyright claim depends on federal law. One needs to show copyrights, code
and the improper copying of that code. You can not gain a Federal Copyright and
transfer that copyright and enforce that copyright without that copyright and
specifiying code. Period. The copyrights and code may be subject to contracts
and proper transfers, but you need to show the copyrights to begin with. Indeed
the APA specificially leaves out copyrights as being transferred. Contractual
rights might even be stronger than copyright protection, but this motion simply
addressed copyright protection. SCO's screaming for code and matching IBM on
stonewalling taunts, as irrational as it was, won the day. The Judges have
bought it, whatever it is. You can not create a copyright by a contract. You
have to follow the law. The contract is about the use of code, it does not
create a copyright. So the Judges have bought the SCO argument that a
contractual violation of unauthorized use of code can create a copyright. So
to simplify:
IBM: SCO has no copyrights and can show no code.
SCO: IBM has distributed code in violation of our contractual rights.
The Judges: If there is any code that violates the contract, it may be
copyrighted, too.
4. More IBM woe arises on the discovery front. Kimball and Wells now buy
SCO's need for all code. Kimball said as much to IBM despite his granting leave
to object. We now witness another judicial foul up. Last year it was show SCO
code first. How do we know what is relevant unless you show the code? On what
basis did SCO file suit? The plaintiff goes first. In a spirit of even
handedness they ordered IBM to disclose released versions of AIX and Dynix. Now
they have bought SCO's arguments whole hog. They have reversed themselves.
This is why IBM is contemplating an appeal. SCO has overwhelmed the the judges.
They have dodged the simple issue and joined it to the complex by stonewalling
and screaming for discovery. The Judges are kind to them. SCO has revealed
nothing and the Court is too hesitant to do anything dispositive.
5. Courts are in general loathe to do anything dispositive. It leads to
appeals and they realize they are just a tool of negotiation between parties
fighting over money. All of their time and effort might result in another zero
in a settlement. There is always hope that a just result may come from another
front, the Canopy mess for example.
6. IBM has to consider if and when to add other parties. This should
never go to trial without the sponsors. After all, if SCO did not show IBM and
the Court any code, what code did it show the sponsors? Yes and if other
parties are added, the case may take on some serious antitrust angles that beg
for official attention. And conflicts might arise between parties and counsel.
We have a long way to go. The FUD must flow. It's time for some hefty SCO
license renewals.
IANAT
---
webster[ Reply to This | # ]
|
- Shucks! - Authored by: Anonymous on Wednesday, February 09 2005 @ 11:47 PM EST
- Shucks! - Authored by: meshuggeneh on Thursday, February 10 2005 @ 12:28 PM EST
|
Authored by: Anonymous on Wednesday, February 09 2005 @ 11:38 PM EST |
While I am disappointed that the day of judgement for SCO is yet again
postponed, nevertheless I must say enjoyed reading through the judgement. Judge
Kimball writes very well and in a clear understandable fashion. Good stuff.[ Reply to This | # ]
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Authored by: AllParadox on Thursday, February 10 2005 @ 12:21 AM EST |
In modern literary analysis, it is popular to “deconstruct” the author’s work:
analyze why the author may have used the phrase he did instead of some other
equally descriptive language.
“Deconstruction” is therefore very similar to reading tea leaves or the art of
“Kremlinology”, the art of reading Soviet Politburo politics from public
appearances at the Kremlin. Note that this is inferior to the usually reliable
work done in the past by the Oracle of Delphi.
Before I begin, please consider: Judge Kimball has had months to draft his
ruling, ponder the draft, rewrite as necessary, and release. There is a reason
that Judge Kimball is not warming a State Court bench somewhere else. You
should assume that every single word has been carefully considered and
re-considered. Any apparently over-reaching statement is a survivor, and most
probably replaces even more vitriolic language in an earlier draft.
Judge Kimball is quite willing to go afield to find his evidence. He quotes
from tSCOg’s pleadings in the Autozone case, and refers quite competently to
public announcements made by various tSCOg officials, as well as tSCOg’s letters
to members of Congress. He is clearly nobody’s fool, and has this case well
centered in its actual context. Attempts to fool him by misdirection or by
courtroom antics only merit his contempt. Shell games attempted with other
Federal District judges will receive curt rulings. At the same time, he is not
willing to create a record that might indicate he is personally angry with tSCOg
attorneys. He goes out of his way not to mention or refer to the tirade, with
displays, presented to him by Kevin McBride more than a year ago, a tirade whose
sole purpose was to convince him, Judge Kimball, that this case is *only* about
copyright infringements.
This judge is also willing to read and ponder the pleadings. He quotes from
tSCOg’s pleadings in this case to demonstrate that there is issue overlap, and
that tSCOg’s denial of overlapping issues is “puzzling”. (Note that he kindly
did not say “witless”.) He is able to also follow the logic inherent in the
process of lawsuits. Attorneys are expected and required to prepare their case
before filing, and not to file frivolous suits. Judges may, in good faith, rely
upon such expectations. The tSCOg attorneys can be presumed to have filed the
Autozone case only after proper investigation, and in good faith, and therefore
the copyright infringement claim by tSCOg in Autozone proves by admission that
there is a justiciable issue, and that the issue can be resolved by a court. It
will merely be this court that resolves it.
Judge Kimball understands the importance of the copyright issues to Linux and
the Linux community. It is that very importance, in part, that leads him to
leave the copyright infringement claim, Counter-Claim 10, in the case. He says
“It is incomprehensible that SCO seeks to postpone resolution of this claim”.
He politely refrains from blasting the attorneys for unethical delaying tactics,
but this case is still far from over.
Judge Kimball is well aware of the wide interest in this case. He takes the
time to add this comment to a footnote: “Copying is regularly used as a
shorthand to refer to the infringement of a copyright holder’s exclusive rights
under a copyright”. Attorneys would know this instinctively. Laymen usually
would not.
IBM’s motion for Partial Summary Judgment was denied as premature. The only
effective defenses against a motion for PSJ are either rebutting facts, or a
Rule 56 objection. tSCOg filed a Rule 56 objection that met the basic Rule 56
requirements. The fact that tSCOg wholly failed to present rebutting evidence
at the Sept. 15 hearing is not relevant to the Rule 56 determination. Judge
Kimball mentions it more than once, so he obviously did not overlook the
omission. If tSCOg omit substantiating evidence at the next PSJ hearing, they
do so at their peril.
Chalk one up for tSCOg. After repeated attempts, they have persuaded both
Kimball and Wells that more discovery is needed into sources of AIX and Dynix,
and that none of this lawsuit can proceed until they get it. Woe betide them if
they come up empty-handed at the end of the process.
Translation – Original: “However, IBM is free to renew or refile its motion on
its Tenth Counterclaim after the close of discovery.” My free-association
translation into common English: “Don’t even think about not renewing or
refilling this motion. I expect to see it.” Judge Kimball did not need to
mention this part, it went without saying and every attorney implied it. That
he said it at all is a strong indication that he wants to see it. It will wipe
out a lot of issues and save him gobs of time.
---
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 | # ]
|
|
Authored by: Anonymous on Thursday, February 10 2005 @ 03:59 AM EST |
Some things occurs to me.
1. Judge Kimball either doesn't understand SCO's goals and the rules by which
they are playing this, or he is unable to respond to them.
SCO never intended to win this case in front of a jury. All they've ever wanted
was to become such a thorn in IBM's side that they get bought out, pumping and
dumping all the way. So regardless of the tone of the comments on this ruling,
the substance of it gives SCO exactly what they want. IBM and SCO's goals are
to some extent orthogonal; this isn't a loss for IBM, but it's a huge win for
SCO.
2. We wonder how SCO can be in this position despite the comical incompetence of
its legal team.
Well, maybe it's in this position BECAUSE OF the DELIBERATE incompetence of its
team. The law is against them, the facts are against them, so what do they do?
They play dumb, they play crazy. They make such bizarre and glaring claims,
errors, omissions and contradictions that Wells and Kimball actually feel
compelled to HELP THEM OUT.
We're all talking about the appeal, and how this bending over backwards is to
limit SCOs options in appeal. That's not how SCO is playing. SCO know that
this case will never even get beyond discovery. What do they care about an
appeal? All they want to do is to stick the knife between IBM's ribs and twist.
And this is yet another ruling that will have IBM's teeth grinding, and their
board asking if it's worth settling to make this case go away right now.
SCO is winning again and again and again, in all the ways that it cares about.
Who'd have thought that the Special Needs philosophy would have made it into our
courtrooms.[ Reply to This | # ]
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Authored by: Hop on Thursday, February 10 2005 @ 09:25 AM EST |
"Nevertheless, despite the vast disparity between SCO's public accusations
and its actual evidence -- or complete lack thereof -- and the resulting
temptation to grant IBM's motion, the court has determined that it would be
premature to grant summary judgment on IBM's Tenth Counterclaim."
So who is supposed to be interested when a public company makes public claims
they can't back up in any fashion and that drastically affects their stock
price? Sounds like the court was warning SCO about others who might be
interested here, like the SEC.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, February 10 2005 @ 12:29 PM EST |
Is the fact discovery deadline still February 11, 2005, or was that extended?
If it was extended, please update the IBM timeline on Groklaw. Thanks. [ Reply to This | # ]
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