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Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete
Wednesday, February 09 2005 @ 02:15 PM EST

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..."


  


Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete | 453 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: Anonymous on Wednesday, February 09 2005 @ 02:34 PM EST
EOM

[ Reply to This | # ]

OT Here Please
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 | # ]

Why was the declaration not thrown out?
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 | # ]

Choice quotes
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 | # ]

Kimball Rules on 5 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete
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 | # ]

  • Judges are talking
    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 | # ]

    And again SCO get's what it wants
    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 | # ]

    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 @ 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 | # ]

    My favourite quote
    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 | # ]

    Punishing IBM?
    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 | # ]

    Kimball Rules on 5 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco
    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 | # ]

    slightly ominous - footnote 6
    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 | # ]

    Clearly a Win for SCO
    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 | # ]

    slightly ominous - footnote 6
    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 | # ]

    Kimball Rules on 5 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco
    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 | # ]

    Dispositive Motions?
    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 | # ]

    Kimball has got a clue!
    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 | # ]

    Wow, nice way to present a BIG triple victory of SCO!
    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 | # ]

    Oh there's some gems in here!
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete
    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 | # ]

    Kimball recognizes SCOX's copyright claim
    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 | # ]

    How many years
    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 | # ]

    Key IBM Objective Attained? What now for Red Hat?
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco
    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 | # ]

    SCOG's Last Chance
    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:

    1. If SCOG can delay discovery
    2. And burn through the available cash fast enough
    3. Then
    4. 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 | # ]

    Six months down the road...
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete
    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 | # ]

    Run out of money?
    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 | # ]

    The big question is ...
    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 | # ]

    What Does Not Kill Me Makes Me Stronger
    Authored by: Anonymous on Wednesday, February 09 2005 @ 05:12 PM EST
    Goethe said it all.

    [ Reply to This | # ]

    This looks like a set of instructions from the Judge.
    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 | # ]

    Interesting comment from Yahoo message board
    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 | # ]

    Prediction
    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 | # ]

    • Prediction - Authored by: Anonymous on Thursday, February 10 2005 @ 12:29 AM EST
    Disgusted
    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 | # ]

    Deadlock?
    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 | # ]

    Pivot point
    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 | # ]

    Competent Evidence
    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 | # ]

    SCO PR Machine
    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 | # ]

    Cavalierly
    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 | # ]

    Liu v. Price Waterhouse LLP
    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:

    1. Assign copyrights of contributions to IBM; or
    2. 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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete
    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 | # ]

    FWIW, the contract affects copyright cases
    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 | # ]

    We've already won...
    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 | # ]

    Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Disco
    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 | # ]

    Are they out to get the Noordas?
    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
    Does delay help SCO anymore?
    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 | # ]

    Interesting foot note
    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 | # ]

    My summary...
    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 | # ]

    Off topic on Rules
    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 | # ]

    Shucks!
    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 | # ]

    Kimball's style
    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 | # ]

    Deconstruction of Judge Kimball's Ruling
    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 | # ]

    Incompetence as a proactive strategy?
    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 | # ]

    Time for the SEC to get involved
    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 | # ]

    Fact discovery deadline is tomorrow?
    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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