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Attorney Reactions to the Kimball Order
Thursday, February 10 2005 @ 07:54 AM EST

Reactions from attorneys are starting to come in to Judge Kimball's Order, and they back up what I wrote, except that, if anything, they phrase it more strongly than I did.

Here's Stephen Shankland's article on ZDNET:

The opinion bodes poorly for SCO, intellectual property attorneys agreed.

"Based on the scathing language of the ruling, it appears that SCO just barely dodged a possible knockout punch in this round," said Carr & Ferrell attorney John Ferrell. "There's very little that can be more disastrous to your case than an angry federal judge."

Added Allonn Levy of law firm Hopkins and Carley, "Even though you have to say IBM did not hit the home run, if you read that order, you have no choice but to see this as another setback for SCO. This judge is painting an ominous picture for SCO."

Well, that's plain on its face, no? An ominous picture for SCO.

PC Pro's Matt Whipp has EFF's Jason Shultz's reaction:

Jason Schultz, attorney at the Electronic Frontier Foundation concluded the order as a fairly emphatic victory for IBM.

'I had suspected that the judge would deny IBM's motions without prejudice because discovery is still ongoing. However, it's clear from the language of the ruling that the judge would grant IBM's motion on the copyright issues if discovery were closed now. So this means that unless SCO comes up with more evidence than it currently has, it will lose its copyright claims against Linux. We'll see if SCO can manufacture more evidence, but at this point, it looks unlikely. So what this order tells us is that we may have to wait a bit longer to get the result, but the result will most likely be a win for IBM,' he said.

Bob Mims at the Salt Lake Tribune describes the judge as peezed. Ronna Abramson says the judge bad-mouthed SCO. Here's more from ComputerWorld, in an article titled "Judge declares SCO's lack of evidence 'astonishing'":

Director of IP law firm Open Source Law, Brendan Scott, said the key thing to take out of the judgment is that Kimball has made quite an express statement that SCO has failed to provide evidence.

"Reading between the lines, Judge Kimball is saying SCO better get its act together and he's not happy with its case so far," Scott said. "IBM had to overcome a high hurdle and the judge has some sympathy for IBM's case."

Scott said the judgment is a blow to SCO, particularly to the perception of its chances of success. "The problem for SCO is that it has done a lot of accusing but has shown no evidence," he said. "SCO needs to show evidence and come up with something, especially in light of two years ago when it was saying it had evidence. Either [the company] has it and for some reason is sitting on it or it is just hot air."

Scott believes the risk SCO is taking by not producing evidence is that the judge will end up declaring a summary judgment and throw the case out of court. "The best way for SCO to counter is to put its evidence on the table," he said.

SCO declined to comment.

Don't you love that last bit? Since when does SCO decline to comment? Kimball has shut their mouth. UPDATE: It was a temporary loss of function. Whipp got this hilarious spin from them:

SCO said in a statement: 'We are pleased by the court's order denying all three of IBM's motions to effectively dismiss SCO claims without a trial. Coupled with last month's ruling from the Magistrate Judge on discovery, we are looking forward to our day in court.

I have to say, I'll miss these guys when there is nothing left of SCO but an old blues song. Marbux doesn't mind commenting. I asked him for his input on what I had written about the ruling, and while I normally wouldn't publish what is behind the scenes brainstorming, in this case I asked if he'd let me. I wanted those of you whose first reaction was gloom and doom to understand the why of it. Why wasn't I sharing in the gloom? What did I see that you couldn't see? A few thought I was just spinning, trying to make a bad situation look better. Not at all. I always write what I really believe, and as you've seen, attorneys reading the ruling came to the same conclusions I did. If anything, I was understating it.

But it's more like this: the law uses English but they use it in a particular way that isn't the way you'd use it in a nonlegal setting. 1 So, as the attorney said, you have to know how to read between the lines of a ruling to get what the judge's message really is.

Here, then, is Marbux doing just that, and sharing with me his opinion and how he reads the ruling, between the lines. Keep in mind that he's just imagining what Judge Kimball might be thinking, and I personally have a more moderate assessment than he does, because of the Liu reference, something I think IBM should have addressed directly in their motions (they may be kicking themselves about that today), but which they surely will now. I do view that as a manageable issue however. It's just that in courtrooms, you never know for sure what can happen, and it's better to have no issues than one manageable one still on the table. So, with that background you should be able to understand what Marbux is writing, and from here on, it's Marbux:


PJ, I think your published evaluation of Judge Kimball's ruling is a pretty realistic assessment.

U.S. lawyers know that what judges do is to pick winners and losers, then help the winners win and help the losers lose. The goal is finality in a dispute. That means helping the winner create a record that has the best chance of being sustained on appeal. Even more importantly, however, Judge Kimball has decided that this case is going to get what judges call "active case management." That means that the judge is dropping the default mode of just letting the lawyers develop the record while the judge plays referee. The judge is going to actively manage development of the record.

Viewed through that lens, here's my own interpretation of what Judge Kimball is saying, stripped of legalese and the shroud of impartiality that judges have to wear:

"IBM, you got my attention and I'm all over this case now. But we're going to do it my way. Don't worry, IBM. The briefs have convinced me that you are going to win this case, so I'm going to help you win. Our main task is to work together to create a record that has the best possible chance of standing up on appeal. People appeal my rulings all the time, but I'm pretty good at predicting how the Tenth Circuit will rule and I don't get reversed very often. I'm in charge, so listen very carefully to what I say.

"I'm not going to sit back and let the lawyers run the show. This is a case I'm going to actively manage from here on out. Here are my ground rules for the winner and the loser.

"SCO, your case is absurd, and you're trying to swim up a waterfall. You made your bed; now you have to sleep in it. Your motion to get rid of the counterclaims is denied and off my desk. I'm not worried about getting reversed on that subject. I realize you're not going away, but you are not escaping my courtroom without a judgment that clears up all the FUD you've been spreading about Linux and IBM. For the benefit of the press, which seems to be taking interest in this case, here are some juicy quotes from SCO executives about all the evidence they claimed to have that Linux is a rip-off of SCO's Unix code. Please note in your articles that SCO was required to come forward with all the evidence it has to back those claims, and it hasn't got any. It couldn't even offer any proof that it holds the copyrights it is suing over. Draw your own conclusions for now, but I am definitely going to be deciding before this case is over whether SCO can come up with any evidence to support its claims in the discovery it wants from IBM.

"SCO, you are not going to win your case in my courtroom. I've chosen the winner and it isn't you. So you can only use my court to develop a record for the court of appeals. I'm not giving you any easy excuses for an appeal, so you can drown in all the discovery you made the mistake of asking for. You can even have the extra stuff Judge Wells ordered that you didn't ask for. I caught that sentence in your objection where you said Judge Wells only ordered what you want. We all know that even if the evidence you want is somewhere in the discovery you're getting, you're incapable of finding it, or at least unwilling to expend the resources to find it. You said you need the discovery before I can rule on summary judgment, so don't bother filing any dispositive motions until discovery is over. You can spend your time between now and the close of discovery digging through that mountain of Swiss cheese and trying to convince Judge Wells that there are too many holes in it.

"IBM, empty your trash cans and execute ye olde Discovery Dump. SCO can rent a warehouse for all the documents, CDs, and tapes, then have to account it all when the case is over and SCO has to return it.

"IBM, don't think for a second I can't handle this thing after discovery closes. But before then, I can't predict what SCO is going to manage to pick out of the Discovery Dump. Plus, your motions for partial summary are interconnected enough that an earlier ruling might mess with my ability to rule in your favor on the later motions. So your dispositive motions are all off my desk until discovery closes, and don't bother filing any more before then. I'll take care of you when I can rule on all your summary judgment motions at once.

"Just to make it harder for SCO to see all the trains coming down the track, IBM can file whatever motions it wants after discovery closes, and can even renew its existing summary judgment motions then if it wants. SCO, that means you are not going to get many more clues about what IBM's lawyers are working on before discovery closes. You'll have to get ready for the motions IBM has already filed, but only when you can no longer argue the need for further discovery as an excuse for having no evidence. And you're going to have to work in the dark on the other arguments IBM is going to raise then.

"IBM, I want your lawyers to be working between now and close of discovery on more motions for summary judgment raising alternative legal grounds for the same relief requiring different SCO proof to withstand them, and on going to trial on the unfair competition counterclaims. Don't worry about sending me too many motions after discovery closes. We'll set up a schedule in the Pre-Trial Order for the date to file them. The more quality briefs I get from you, the more choices I have on how to rule in your favor.

"I know what I'm telling you to do. I can handle the paperwork, and I want you to build an arsenal of dispositive motions to unleash on SCO's lawyers all at once, after discovery closes and the Pre-Trial Order allows no further delays. Make sure you give me a good basis for ruling in your favor on every SCO issue that won't require a trial, and don't bother with any extra arguments that might get reversed. But SCO, your lawyers know how it works after a judge has chosen the winner. Don't plan on getting any "supplemental" briefs after discovery closes, not that your lawyers will have time to write any then, because the policy on extensions of time is going to change abruptly after discovery closes. It's vital to maintain scheduled trial dates, after all.

"Both sides have major litigators on their legal teams, so you know how it works once a judge decides a major case is interesting and deserves active management. Between now and the close of discovery, I'm going to be working on handing off new cases to other judges and adding some extra law clerks to help clear my backlog, work on the arguments IBM has already raised, and doing legal research on the issues presented by this case.

"SCO, you made the mistake of bringing me a frivolous lawsuit, then asking for the sun, the stars, and the moon in discovery. Prepare to reap what you have sown."

All just my opinion, of course. Judge Kimball said he hasn't reached any decision on the summary judgment motions. He's just saying how the evidence looks so far, while carefully reserving any final decision because of the outside chance SCO might be able to come up with something in all that discovery. But I can tell you as a certainty that the celebration is still going on in Armonk, New York. There will be hang-overs aplenty.

This is also great news for the Linux community at large. Judge Kimball didn't just say which way the wind is blowing; he also said it's in gale force and he is going to push the boat himself. The speculation is over. IBM is almost certainly going to win at the District Court level and be armor-plated for appeal.

There just may be some hang-overs in Lindon, Utah as well, but they will be caused by sudden and severe depression, not joy. SCO was just told it's going to lose, and it's going to lose in a way that drives the litigation budget sky-high. Remember, the attorney retainer agreement says that SCO has to cover all out-of-pocket expenses. The day of reckoning is approaching. SCO is going to have to pay for a fleet of outside experts to review all that code. Remember, the discovery management order prohibits SCO staff from looking at IBM's code.

The SCO lawyers have no choice but to reevaluate their commitment to the case. They've just been told that to get a win, they've got to finish the District Court phase before a judge who intends to bury them in paper, then win an appeal, then retry the case in District Court, all with a case that's suddenly lost nearly all its glow.

If the SCO lawyers decide to jump ship, the out-of-pocket expense provision may well be their best escape hatch. If SCO can't commit to raising the money the lawyers say is necessary to pay the outside experts, the lawyers have grounds for declaring the retainer agreement in material breach, which gives them a legally defensible right to void the agreement and withdraw.

1 I got the following email from Trebonian, and he expresses it very well:

Please thank Marbux for his analysis of Judge Kimball's order. It really added value to your analysis piece.

When I read these legal edicts, I feel like an observer at a ceremony in the Japanese Shogun's court in the 17th century. So much is happening that goes totally over your head - yet an overwhelmingly strong message can be communicated to anyone familiar with the rituals.

The words are mainly ceremonial, and boiler-plate, but the way things are said, the body language, and the things that are left unsaid deliver "deafening" signals to all the regulars.

Even to my untutored eye, Judge Kimball was using some unusually strong wordings, and stilted use of repitition - (I keep hearing the message to IBM's lawyers EMPHASIZING to wait until after discovery to refile). It is nice to have a real "courtier" confirm my impressions.


Attorney Reactions to the Kimball Order | 465 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Anonymous on Thursday, February 10 2005 @ 08:46 AM EST
<A HREF="">Clickable link</A>

[ Reply to This | # ]

Authored by: Anonymous on Thursday, February 10 2005 @ 08:47 AM EST
Where and what.

[ Reply to This | # ]

Authored by: WhiteFang on Thursday, February 10 2005 @ 08:53 AM EST
What a fun and marvelous piece of succinct writing!

Thank you.

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Nick on Thursday, February 10 2005 @ 09:04 AM EST
Well, that's certainly clear, and a big thank you to marbux for offering his opinion on the ruling. The doom-and-gloom crowd mostly focused on the possibility that SCO is merely interested in dragging things out forever. Viewed narrowly, you can take this ruling and say its a win for SCO. But not really. Yes, things get dragged out longer now, but oh, at what an expensive rate for them! And the judge has just laughed at your arguments, something being noted in the press already. And as much as this case was about delay, it wasn't only about delay. All those who pumped money into SCO wanted more than delay. They wanted FUD, and now all the FUD is going deeply against SCO, precisely the opposite of what they wanted to have happen.

In the long term, things are going very well. Yes, some folks have gotten rich off of this who shouldn't have, but as we see in the Noorda actions recently, those chickens can come home to roost eventually. And IBM is not done. Up until now they've mostly been in reactive mode. Their day is coming when they leap into active mode and start getting their legal revenge. All the ill-gotten gains in the world won't be worth what will eventually happen to those IBM goes after.

Win for SCO? Only if you ignore the big picture, refuse to read the details of what Judge Kimball said, and close your eyes to what is coming down the road. SCO got some delay in the short term, but in the worst possible light. You won't see much crowing from SCO over this.

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Anonymous on Thursday, February 10 2005 @ 09:05 AM EST

I have been checking the technology news headlines on Yahoo and so for nothing.
That means it has to be a win for IBM. If it was a win for SCO then the news
sites would be all over this and we would be inundated with articles.


[ Reply to This | # ]

Authored by: Anonymous on Thursday, February 10 2005 @ 09:06 AM EST
The natural reaction to this kind of signal from the judge is to abandon the
case. That would be unfortunate if it prevents the judge from actually ruling
on (e.g.) the copyright issue. Suppose SCO does drop. Can IBM still pursue all
its counterclaims, or would they be ruled moot?

[ Reply to This | # ]

Time to break out the champagne...
Authored by: Anonymous on Thursday, February 10 2005 @ 09:08 AM EST
Well, maybe not quite open it, but I definitely am going to go out and purchase
and have the bottles at the ready.

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Anonymous on Thursday, February 10 2005 @ 09:08 AM EST
Might have to start organizing "SCO LOST" parties around the world...

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Anonymous on Thursday, February 10 2005 @ 09:47 AM EST
Has Laura Didio (sp) had anything to say about this? She's been carrying SCO's
torch throughout these proceedings and this has to make her look foolish even in
her own eyes.

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Anonymous on Thursday, February 10 2005 @ 09:48 AM EST

[ Reply to This | # ]

The Fat Lady...
Authored by: Anonymous on Thursday, February 10 2005 @ 09:52 AM EST
According to Marbux, if SCO vs. IBM were opera, the Fat Lady isn't singing yet,
I think I hear her warming up in the Green Room.

Unfortunately, that means that we have to sit through a whole 'nother act of SCO
trying to sing before getting killed in the end. After all, this is opera. :-)

[ Reply to This | # ]

SCO's stock is up (nasdaq)
Authored by: Anonymous on Thursday, February 10 2005 @ 09:54 AM EST
just checked Nasdaq and SCO's stock (SCOX) is actually UP, by 8 cents, hovering
close to $4.50 a share.

i still don't get what's up with that. seems ANY news causes their stock to go

but, if I may, I predict by mid-april (to the end of april) will be the final
end of SCO...

why? well their 52 week high will drop to $6, and after that, its game over...

[ Reply to This | # ]

Will this affect Red Hat's case?
Authored by: Jeffrey on Thursday, February 10 2005 @ 09:58 AM EST
How will this news be received by Judge Sue Robinson (Red Hat v. SCO) in their quarterly update letters? Will this simply be another log on the fire until the SCO v. IBM case goes forward, or will it be enough to enable that case to begin to move again?

I suspect the former, as Judge Kimball hasn't really declared anything other than "I can see what you are doing SCO and I have enough rope ready for you to hang yourself." But if that is true, what will be the catalyst to get the Red Hat v. SCO case going again?

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Anonymous on Thursday, February 10 2005 @ 10:19 AM EST
Kimball more or less says "i deny these orders to disallow SCO an appeal
and allow IBM to bring forward even better ones".
Only the delay is in favor of SCO (or is it?).

[ Reply to This | # ]

The Last Straw
Authored by: Anonymous on Thursday, February 10 2005 @ 10:22 AM EST
"SCO was just told it's going to lose, and it's going to lose in a way that
drives the litigation budget sky-high. Remember, the attorney retainer agreement
says that SCO has to cover all out-of-pocket expenses. The day of reckoning is
approaching. SCO is going to have to pay for a fleet of outside experts to
review all that code. Remember, the discovery management order prohibits SCO
staff from looking at IBM's code."

Now it becomes clear that Wells in consultaion with Kimball was actually doing
IBM a favor by adding enough straw to break the camels back.

[ Reply to This | # ]

Darl, where are you...
Authored by: Anonymous on Thursday, February 10 2005 @ 10:30 AM EST
Haven't heard from you in a while. Judge Kimball's order should give you much
to say. How the MIT guys are in the wings and will bring with them their lines
of infringing code. That the capitalist system is alive and well and SCO will
eventually win (even on appeal). The luggage in Europe was recovered and is
being sent to Salt Lake City express and should arrive momentarily. Darl, where
are you. I miss your rantings and claims. Please, please come out and play.

[ Reply to This | # ]

Liu's not a problem for Linux: here's why
Authored by: Anonymous on Thursday, February 10 2005 @ 10:56 AM EST

I had been concerned that an interpretation of Liu could mean that if IBM had
hypothetically copied original IBM modifications in AIX or Dynix to Linux, that
would be copyright infringement.

However, after reading what I believe is the modified (now 8 page version) of
SOFT-00015, as mentioned in $ECHO, which I believe is the equivalent of the
ATT-SCO contract SOFT-000302, it is clear from paragraph 2.01 as modified in
that last document:

"Such right to use includes the right to modify such SOFTWARE PRODUCT,
provided that any such modification or derivative work that contains any part of
a SOFTWARE PRODUCT subject to this Agreement is treated hereunder the same as
such SOFTWARE PRODUCT. AT&T-IS claims no ownership interest in any portion
of such a modification or derivative work that is not part of a SOFTWARE

Thus, it is clear that ATT in the modifications to the software license
agreement made in 1985, that IBM and Sequent own all modification or derivative
work. Claim of ownership is settled -- IBM owns the copyright.

As the ownership of the modifications or derivative work now lies with IBM, it
would be impossible for them to violate copyright law, as IBM owned the
copyright. End of story. Linux therefore is NOT in copyright violation.

Now, the wording of the first sentence of the above portion of 2.01 says that
the modification or derivative work must contain part of the original SOFTWARE
PRODUCT to be "treated hereunder the same as such SOFTWARE PRODUCT".
Assuming that there is no original ATT Unix in Linux (none was found as pointed
out by the judge), we can assume than any hypothetical copying of AIX or Dynix
code copied only the modifications or derivative work to Linux, and took no
original Unix.

Therefore, the portion of hypothetical AIX/Dynix code in Linux contains no
SOFTWARE PRODUCT code and cannot be "treated hereunder the same".
Thus the hypothetical AIX/Dynix code in Linux imparts NO CONTRACTUAL OBLIGATION
to ATT and it's hypothetical successor, SCO.

Finally, as an aside, note that "is treated hereunder the same as SOFTWARE
PRODUCT" is not the same as being SOFTWARE PRODUCT. This means that while
the modifications or derivative works would be treated contractually in the same
way, they are not SOFTWARE PRODUCT themselves for purposes of the viral clause
of 2.01, and hence cannot have the viral nature of SOFTWARE PRODUCT. If this
was not the case, SOFTWARE PRODUCT would have been defined (in paragraph 1.04)
to include all modification and derivative work. It was not, so we therefore
understand that modification and derivative work are something different than
software product.


[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: fredex on Thursday, February 10 2005 @ 11:01 AM EST
PJ, Marbux, Thanks for the wonderfully entertaining read! It would be really
thrilling were Marbux's thesis to turn out to be spot-on!

OT: Haven't seen much from our "other" lawyer friend, AllParadox,
lately. Is he (I assume he's a he) alive and well?

[ Reply to This | # ]

Sheer speculation, but....
Authored by: Anonymous on Thursday, February 10 2005 @ 11:28 AM EST
OK, let's suppose that SCO does lose, loses big and owes IBM a potfull of money
it can't pay unless it liquidates. Would a possible alternative settlement for
IBM be to be given the ownership of the precious Unix source code that everyone
is gnarling about? (Assuming of course SCO actually does own it.) Then IBM can
turn around and open source it, killing off any challenges to Linux forever.
SCO gets crushed, the FOSS folks are happy, IBM gets brownie points....or am I
way way off base?

[ Reply to This | # ]

frequent flyer miles
Authored by: Anonymous on Thursday, February 10 2005 @ 11:30 AM EST
I would like to comment on the fact that SCO has to pay all out of pocket
expenses in the IBM suit. In her order for more discovery Judge Wells ordered
IBM to produce 3,000 witnesses. As I understand it these witnesses will be
deposed at the place where they reside. It will cost SCO a huge amount of money
to attend the depositions of all of these people.

Steve Stites

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: codswallop on Thursday, February 10 2005 @ 11:36 AM EST
A very clear and persuasive analysis. There is one issue and possibility you
didn't address. Judge K. didn't say he would amend the scheduling order.

It is possible that while he will let the AIX discovery and whatever else Judge
W. orders continue, he'll respect the current deadlines for the rest or grant
only a minimal extension. Since the contract issues don't depend upon AIX or its
progammers' actions, there is no reason not to wind that part up after the
deposition of the last person who ever touched the contract. There might be room
for some extrinsic expert stuff after that, but that shouldn't take long.

This would get the contract claims PSJ back first. If SCO lost those, the whole
case would collapse. This seems the most expeditious way for Judge K. to
continue. Also Judge K. made a point of mentioning fairness to IBM. Resolving
the contract claims ASAP would be the fairest approach.

IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

Random thoughts on AutoZone and AIX discovery
Authored by: Anonymous on Thursday, February 10 2005 @ 11:39 AM EST
On further reflection, I think that both IBM and Kimball missed an important

SCO wanted to stay or dismiss IBM's 10th counterclaim (declaration of copyright
non infringement for IBM's Linux activities)

1. SCO's theory for why this would be appropriate was (although apparently later
abandoned) that the "precise" issue was being litigated in AutoZone.

2. Meanwhile in the IBM case, SCO's theory was the 10th counterclaim couldn't be
litigated without the massive discovery of AIX history.

Now put those together in a thought experiment:

(a) Imagine if SCO had got what it wanted: IBM's 10th counterclaim had been
stayed or dismissed.

(b) Then part 2, AIX discovery, would not have happened (because SCO's logic is
they need this discovery to defend against the 10th counterclaim, which would no
longer have been part of the case

So... what follows? I think...

(c) In this thought experiment, SCO would be litigating whether Linux infringes
a SCO copyright solely on the basis of material that they already had -- and
whatever discovery they got from AutoZone. And the AIX discovery would never
have been part of it.

(d) Now the good part: Scenario (c) in this thought experiment: IS WHAT SCO

So - the conclusions (in my opinion, yours may differ of course) is

I. As SCO was prepared to litigate alleged Linux copyright infringements without
AIX discovery against AutoZone, why should they not have been prepared to do the
same against IBM? (which raises the whole question of why they wanted the AIX
discovery, and whether they ought to be granted the AIX discovery)

II. As SCO was prepared to litigate alleged Linux copyright infringements
without AIX discovery against AutoZone, they don't seem to think the AIX
discovery is essential to their cases? (which contradicts their motions to
compel, their rule 56f motion -- and also tells us that they probably aren't
expecting to find anything useful to the Linux copyright issue in the AIX

Thoughts, opinions?


[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Rann on Thursday, February 10 2005 @ 11:52 AM EST
How I read this Memorandum and Order was that it was a "Mid-Case Report
Card" and assessment from Mr. Kimball, your Principal at Utah Legal High:

-IBM, you have shown some fine scholarly legal work HOWEVER there are a few
things that are weak or you've forgotten to submit. To earn that A+ with me you
so, so want, you still need clean up these few remaining issues - take the
remaining time this semester to work on them and submit a few of your
well-written essays, due just before final exams. You just might earn an
exemption from all your exams!

-SCOG,... what can I say? So far, none of your essay work has been worthy of
merit. Much of your submitted work has been shoddy, and not very well thought
out. You're failing dismally and risk academic expulsion! Have you forgotten to
do and submit some homework?? Some of that just MAY help your grades a bit!
However, the semester isn't over yet, so with a lot of diligence and work you
still have a chance to pass,albeit a VERY,VERY slim one. Oh, I almost forgot -
to assist you, Ms. Wells and I have decided to assign you this truck load or two
(or three) of remedial homework.....


[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Stumbles on Thursday, February 10 2005 @ 12:08 PM EST
Ok, so the judge has more or less told SCOG to put up or shut up, at least
that's the way it seems to me. I have a question though.

So far we all know SCOG has not shown one shred or one byte of code as
evidence. Since SCOG has been granted the mother of all fishing trips.
How much credibility, or how much credibility would they have should
they find some "infringing code"? Maybe "credibility" is not
the word I
mean hear, not sure how to say it. How would anyone know with
certainty if found and they then presented their initial evidence, that
their initial evidence is not some how, umm er mm, trumped up?

You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Anonymous on Thursday, February 10 2005 @ 12:09 PM EST
- Kimball is one smart cookie.

- SCO doesn't have enough money or time to have a thorough *third party* review
of all the IBM code they have just won the right to have examined.

- SCO and its management are doomed. Either they fall victim to the NFT/Canopy
lawsuit, SCO runs out of money, the SEC decides to investigate, or the company
is buried under a mound of penguin guano.

- As has been said elsewhere, many eyes on code is a good thing. Linux is
stronger now than it has ever been, both from an IP standpoint and from a
publicity standpoint. I suspect many who had never thought of using Linux are
now wondering what all the fuss is about.

- Go IBM!

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This is what troubles me about the ruling
Authored by: treyghyui on Thursday, February 10 2005 @ 12:11 PM EST
The line where Kimball states that he is unconvinced that all that is sufficient
to show copyright infringment or lack thereof is comparison between SYS V which
SCO has and Linux, which everybody has.

This is a real problem if it ever becomes case law. This would throw out the
premise that it matters not the interim steps a work went through, as long as
during the act of "infingment"(read: public distribution) there were
no traces of copied material in the work.

If not this, than what possible interest for the 10CC would AIX/Dynix code hold?
There would be no way for SCO to win on 10CC if it had to show snippets of
derived sys V in linux, no matter what AIX/Dynix has/had.

Hopefully what he really means is some nebulous mix of contractual rights based
on derived copyright code from AIX/Dynix...but thats weak.

And in any event, if Kimball would have granted 10CC for IBM, but for lack of
discovery on AIX/Dynix, then RedHat v. SCO should proceed on the basis that SCO
would need similar discovery from redhat, else redhat wins.

This follows because it makes no sense to draw a line from AIX/Dynix through
Linux distributed by RedHat if when it comes to linux there is a big blank void
instead of SYS V code. As such the cases should be considered dissimilar now.

It should not be possible for anyone other than IBM to be infringing on SCO
copyrights if the only thing preventing 10CC for IBM is lack of discovery on


[ Reply to This | # ]

English Usage
Authored by: Anonymous on Thursday, February 10 2005 @ 12:17 PM EST
PJ wrote: "the law uses English but they use it in a particular way that
isn't the way you'd use it in a nonlegal setting"

Exactly. This is the reason why lay persons and legal scholars can read the same
ruling and come to different conclusions, as we see has happened on this board.

Reminds me of my own field, science, and the word "theory". To the lay
person, a "theory" is a guess, as in "I have a theory about who
killed Mr. Mustard".

To scientists, "theory" has a more precise meaning: a mechanism, which
in physics is usually a mathematical description, which explains observed
behavior. The "opposite" of experiment, which is the observation
itself. There is no insinuation here that it is a guess.

A large part of the debate on Evolution vs Creationism can be traced to the
misunderstanding of the word "theory" in its scientific context.
Creationists would have you believe that since Evolution is called a theory,
that it's just one guess out of many. They claim that the "theory" of
creation is just as valid, and hence should get equal time in schools.

However, a scientific "theory" is a testable hypothesis. If the theory
fails to explain the facts (experiment), then it is either revised or

Creation "theory", on the other hand is not a testable hypothesis. And
when was the last time that this "theory" was modified or discarded
when confronted with new scientific evidence (notwithstanding schisms)?

Scientists, lawyers, and the general public use a common language. However, the
lay person should excercise care when reading and interpreting professional
works, since everyday words may have a more specialized meaning in their

Let the Creationist flames begin ...

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Attorney Reactions to the Kimball Order
Authored by: tknarr on Thursday, February 10 2005 @ 12:42 PM EST

I think Marbux is right. Just look at the tone of the judge's comments. Remember when we were shocked by the tone IBM's lawyers were taking when referring to SCO's lawyers and filings in earlier motions? Well, judges are even more circumspect in how they phrase things. If Judge Kimball's being this openly critical of the amount of evidence SCO's presented to date, SCO's going to need to pull off multiple miracles in quick succession to avoid being wiped from the board once discovery ends.

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"And that two handed engine...
Authored by: fuego451 on Thursday, February 10 2005 @ 12:45 PM EST
...stands at the door, to strike once, and strike no more." John Milton -
Paradise Lost

In light of judge Kimball's order, and marbux's interpretation thereof, I can
not see how SCO could possibly continue with this charade; monetarily, evidence
wise or otherwise.

I wonder, if SCO suddenly had a change of heart, meaning they can now clearly
see the darkness at the end of the tunnel, would it not be less costly for them
to drop all of
their court cases now and attempt to salvage what they can? Would this even be
possible at this point? And, finally, could Canopy Group/Mr Noorda play any role
forcing SCO to do this?

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: sjf on Thursday, February 10 2005 @ 12:50 PM EST
In any sane court case this would be taken as a hint that the parties should

[ Reply to This | # ]

I Don't Get It.
Authored by: Anonymous on Thursday, February 10 2005 @ 12:53 PM EST
This display of judicial incompetence is sad and depressing.

It's been nearly 2 years since SCO filed this ridiculous lawsuit. Back then,
and every day since, they have publicly said that they have evidence proving
their case.

If they still have not presented any evidence after nearly 2 years, as even the
judge has now admitted, why is that not grounds for dismissing the case?

Oh, they're not done with discovery? But 2 years ago SCO said that they had
already had evidence. A year ago SCO said their MIT deep divers had uncovered
proof. Over and over again SCO has claimed that they have proof. So why do
they need more discovery? More importantly, why is the judge allowing it?

The truth is, SCO has been lying since day one. They have no proof. No
evidence. Everybody knows it and the judge has now even admitted it. And yet
he allows the case to continue.

[ Reply to This | # ]

A Question Concerning Appeals
Authored by: Anonymous on Thursday, February 10 2005 @ 01:01 PM EST
The decion about the additional discovery for SCO was almost guaranteed to be
appealed by whichever party lost.

While IBM has many valid objections about cost, finding people and gathering
massive amounts of data, the core of the ruling seems to go more to SCO's
argument about the essence of Unix seeping into Linux through successive
revisions to AIX. This is SCO's derivative works theory, and opposing the tacit
accpetance of that by the magistrate judge is much more important to IBM than
the money, I think. For the same reason it is also terribly important for SCO
and thus was almost certain to be appealed regardless of the ruling.

My question is: does being the appellant, the first to speak to the appeals
court, carry any advantages for defining the terms of the dispute?


[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: belzecue on Thursday, February 10 2005 @ 01:10 PM EST
Possible ways SCO will bounce back from this judgment:

1) New investment props them up for another six months. If that's going to
happen, it will happen in the next few weeks. It may already be weeks in the
making. Start practising your groans. Inhale... roll eyes... exhale... Go see
a few Halloween movies to get a feel for how this type of villain never really

2) They dig frantically and find a needle in their haystack of discovery. Okay,
maybe just a toothpick. Half of one. Coupla years old. Sort of looks like a
toothpick. Hold it up and tilt your head to the left. See? Well, you're not
an expert, bub, so you'll have to take Sontag's word for it. Lo and behold,
Your Honour, the missing toothpick that links UNIX to AIX to Linux, yea and
verily! OK, you get the picture. More delay while they play with a whole new
wacky-baccy theory of law.

3) With a couple mil in the bank, the powers that be pull the plug and dissolve
SCO. If you can't win the game, change the game. The only 'win' left for the
SCO gang is to git while the gittin's good and leave at least a thin haze of
uncertaintly hanging in the air.

4) Surprise me, Darl.

[ Reply to This | # ]

Attorney Reactions to the Kimball Order
Authored by: Anonymous on Thursday, February 10 2005 @ 01:28 PM EST
"If the SCO lawyers decide to jump ship, the out-of-pocket expense
provision may well be their best escape hatch. If SCO can't commit to raising
the money the lawyers say is necessary to pay the outside experts, the lawyers
have grounds for declaring the retainer agreement in material breach, which
gives them a legally defensible right to void the agreement and withdraw."

If they withdraw, what lawyer would they be able to find to pick up the case and
continue with it?

How would this fold in with the legal troubles Canopy is experiencing?

Could Canopy be tapped to provide additional funding? Could they be legally
required to provide addtional funding?

[ Reply to This | # ]

  • Canopy - Authored by: Anonymous on Friday, February 11 2005 @ 02:01 AM EST
Question: What If...
Authored by: raynfala on Thursday, February 10 2005 @ 02:44 PM EST
What if SCO, in an effort to head off a partial summary judgement on IBM's Linux
activities for failure to submit any evidence, just submits a mountain of
irrelevant / inconclusive / immaterial stuff as "evidence" of copying
(i.e. laughable stuff such as errno.h)?

Would this "evidence", however awful it may be, be enough to
circumvent the PSJ? Or does IBM get another chance to have it picked apart and
thrown out before the PSJ is ruled upon?


[ Reply to This | # ]

Why is more AIX/Dynix code needed?
Authored by: Anonymous on Thursday, February 10 2005 @ 04:17 PM EST

I don't understand the reasoning for SCO needing more AIX/Dynix code from IBM. Hasn't IBM already admitted that it has taken its own homegrown code and put it into Linux?

Seems to me that the only thing left to do is decide whether the AT&T/IBM contract would restrict the use of IBM's homegrown code.

I am the only person that thinks this???

[ Reply to This | # ]

Say that again.
Authored by: blang on Thursday, February 10 2005 @ 05:46 PM EST
""IBM had to overcome a high hurdle and the judge has some sympathy
for IBM's case.""

If we can sum this all up with yet another lame analogy, is that SCO is like a
jeweler accusing someone for having raided his shop. But when the police asks
which items were gone, the jeweler does nothing but hemm and haw.

It still ends up in court. In another lawsuit, another jeweler accuses jeweler
one for not owning any of the jewles he still hasn't got.

And in the original suit, the defendant manages to cough up a dead solid alibi
since before the jeweler went into business, literally not even sowing doubt,
but proving innocense.

I wonder what that O'Gara person will writre about next. Maybe those jokers
hoped to find a smoking gun in the sealed records, but I guess the only thing
that was smoking about those records was that they were probably misrepresented
and "leaked" by Darl, as usual.

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Attorney Reaction - take two
Authored by: webster on Thursday, February 10 2005 @ 06:52 PM EST
Have to post under this title. My initial disappointed reaction is two articles
ago. ("Shucks").

There are at least two possibly good things we have learned about Judge Kimball
by now from the Novell and IBM cases:

1. He lets you know what he thinks and where he thinks the case should go.
Marbux calls it "case management." He doesn't just decide, cite some
law and facts and shut up. He comments in a most helpful and enlightening way.
A way that guides the parties.

2. He is reluctant to pull the trigger and exercise his immense power. He
bucked in Novell and again with the PSJ on CC10. He is more than fair. He
spares the rod. This way may inspire many settlements in normal lawsuits.

He told IBM that he agreed with Wells on the discovery issue. This means that
the reconsideration before her will also involve him. Appealing from her
decision to him is a procedural step only since he will be part of that

It is clear from the Judge's assessment of the situation, IBM deserved the PSJ
on CC 10. IBM has to educate the court on the narrowness of that claim, that
is straight copyright infringement. Further discovery does not pertain to this
claim. "Infringement" by the supposed contract derivative definition
does not create a federal copyright claim.


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Attorney Reactions to the Kimball Order
Authored by: beserker on Thursday, February 10 2005 @ 08:07 PM EST
Thanks PJ and marbux, great work. I've always been a little curious why IBM laid out CC10 with such broad wording. I'm not sure they even expected it to succeed. I'll bet that they knew perfectly well that the ongoing discovery was likely to make CC fail. Perhaps they were just trying to flush out even the lamest excuse for a case from SCO (it appears that SCO wasn't up to even this challenge). No doubt IBM will appeal but perhaps there is an opportunity here that wouldn't have existed otherwise. Assuming that IBM's appeal will be denied unless the discovery serves no purpose, maybe the judge is asking for something to rule on that establishes that it serves no purpose. The thing that kicked off this train of thought is SCO's idiotic copyright derivation theory. Based on other articles this seems to be plainly at odds with the current case law and it would be good if there were a ruling that sets precedent for anybody else that would dare to waste the court's time. OTOH do judges ever decide to become this active?


"Outside of a dog, a book is man's best friend,
Inside of a dog, its too dark to read."
- Groucho Marx

[ Reply to This | # ]

I wish....
Authored by: rm6990 on Friday, February 11 2005 @ 05:13 AM EST
Well, all I have to say is too bad they didn't cram SCO's copyright claims down
McBride's throat. But...other than that...this all looks pretty good. A
substancial (I know I didn't spell that right) victory for IBM

[ Reply to This | # ]

Preliminary Injuntion against Linux threats?
Authored by: GLJason on Friday, February 11 2005 @ 08:01 PM EST
IBM's major business focus is now on providing Linux services. SCO has made
many public claims that Linux infringes SCO's copyrights and has made demands
that end users (i.e. IBM's clients) pay SCO for their use of Linux. SCO has
been given the chance in court to show evidence, all they needed to show was a
morsel of copied code, and they haven't. Judge Kimball called this
"astonishing". Couldn't IBM move to enjoin SCO from publicly claiming Linux
infringes SCO's copyrights or from entering into any more "Linux Licensing"
deals? Judge Kimball could order that they are forbidden from doing that until
they show evidence in court...

[ Reply to This | # ]

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