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Some Implications of Judge Kimball's Ruling, by Marbux
Friday, February 11 2005 @ 08:02 AM EST

The media has been overwhelmingly on target in its coverage of the Kimball ruling. If you click on Google's 93 "related stories", here are some typical headlines:

Judge Says SCO's IBM Case Lacks Evidence
SCO Bad-Mouthed in Ruling
Judge slams SCO's lack of evidence against IBM
Judge Questions Lack of Evidence in SCO-IBM Case
Judge Slams SCO's Lack of Evidence
Judge Says SCO Supplying Insufficient Evidence
Judge Blasts SCO for Lack of Evidence
Judge Critical of SCO in IBM Case
SCO's Case Against IBM Takes Hard Hit
SCO Suit Still Alive, But Judge Peeved
Judge losing patience with SCO Group's courtroom tactics
Judge slams 'cavalier' SCO

So, they got it. How refreshing. Of course, there's always a contrarian, in this case the eternal optimist and rooter for all things SCO, Laura DiDio, who remembers the Red Sox coming from behind last year and beating the Yankees after being down 3-0.

What are the implications for the future? Marbux has a theory he'd like to present on the implications he sees for the SCO v. Novell case. He noticed something in a footnote in the Order that he thinks is significant, because it indicates to him that SCO is going to have to prove its copyright ownership first in the SCO v. IBM case, and separately from the SCO v. Novell litigation. That is something SCO has been trying to avoid from day one. So it's meaningful.

Why? It means that SCO's worst nightmare just came true. From the beginning of the SCO saga, they have tried to avoid a clean copyright infringement battle. That tells us that they have doubts they can prevail. If they thought they could prove copyright ownership, they would have alleged it, straight up, in SCO v. IBM. They didn't, and they tried hard to avoid it by bringing a motion to dismiss or stay IBM's copyright infringement counterclaim, which Kimball denied. So now they are cornered.

Remember their mealy-mouthed "we never accused IBM of copyright iinfringement except for post-termination AIX distribution" double speak? When Judge Kimball wrote scornfully, in essence, of *course* SCO has accused IBM of copyright infringement by its public statements, he placed on SCO the burden of proving that ownership not in the Novell case, but here in the IBM case. I missed that when reading the Order, so here is Marbux's working theory, and what he thinks Novell's attorneys might think about doing next, as a result of footnote 3.

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

Some Implications of Judge Kimball's Order
~by Marbux

Judge Kimball's most recent ruling in SCO v. IBM (the "IBM case") has important implications for SCO v. Novell (the "Novell case"), indeed for all of the pending SCO Linux cases except the Daimler-Chrysler case. But the implications for the Novell case are most immediate.

Judge Kimball said in his IBM case ruling, "[t]o prove copyright infringement, SCO must establish (1) that SCO owns valid copyrights in the UNIX software, and (2) that IBM has copied protectable elements of the allegedly copyrighted UNIX software." Ruling, footnote 3. Let that sink in for a moment. SCO has to prove that in the IBM case. The judge was not talking about the Novell case. He was talking about the IBM case. That is important.

My working hypothesis is that the ruling will trigger the Novell case being placed on hold until the judge rules on the copyright issues in the IBM case. That isn't the only way it could play out. Here are the reasons for my prediction, organized by process of elimination. As always, I appreciate reality checks and invite any constructive criticism.

Judge Kimball is the presiding judge in both the IBM and Novell cases. His resources would not be used efficiently were he to supervise development of two separate case records on closely related issues, particularly if resolution of the issue in one case is likely to resolve the same or substantially overlapping issues in the other case. In addition to announcing that SCO must prove copyright ownership and infringement in the IBM case, he also said it appears likely SCO will lose both of those issues, discussing at some length -- and with some pointed displeasure -- SCO's failure to come forward with any admissible evidence on either element of the copyright claim, as required by summary judgment procedures. He also specifically rejected SCO's request to delay consideration of IBM's copyright counterclaims, so seems bent on deciding the copyright issues first in the IBM case.

Judge Kimball has discretion to consolidate both cases for the limited purpose of determining the copyright issues, but two records are still required and consolidation would delay disposition of the more procedurally advanced IBM case and add unnecessary complexity to it, so I believe he is unlikely to exercise that discretion.

First, because IBM seeks a clean bill of health on all of its Linux activities which include copying and distribution of the entire Linux kernel, a clean bill of health for IBM is a clean bill of health for Linux too. Granting IBM a clean bill of health on Linux copyright issues thus disembowels SCO's ability to sue Linux end user companies based on claims of infringing SCO copyrights by acquiring their copies of Linux. It also clear the decks for the other judges waiting for a decision in the IBM case to move their cases forward.

Second, preparation of the IBM case is more advanced and were the cases consolidated, Novell would be entitled to have the discovery deadline extended while its lawyers catch up with IBM's and SCO's case preparation.

Third, the copyright issues in both cases are not necessarily mirror images. SCO may conceivably have copyrights or licenses it holds for relevant code it developed or acquired after the Novell-SCO agreement and those issues could not be resolved in the Novell case. On the other hand, in the IBM case not all of the copyrights SCO allegedly acquired from Novell are necessarily implicated by SCO's allegations that IBM improperly contributed code to Linux on which SCO holds both copyrights and contractual rights. SCO is not alleging that all of its code covered by copyrights it supposedly acquired from Novell are in the code IBM contributed to Linux. From the judge's perspective, it probably is better to process the cases in sequence rather than in parallel and see what remains for the Novell case after he rules in the IBMcase. (But that also suggests Judge Kimball will require excruciatingly detailed proof from SCO in theIBM case on precisely which code involves which copyrights. Otherwise, he runs the risk of partially inconsistent judgments in the two cases, which is grounds for reversal.)

Fourth, if SCO loses the copyright ownership issue in the IBM case, its case against Novell becomes largely a house of cards that will tumble. No slander of title action is sustainable unless SCO actually holds title to the relevant copyrights. That is SCO's sole grounds for its complaint against Novell. Under the doctrine of collateral estoppel, to the extent SCO loses the copyright issues in theIBM case, the judgment would carry over to the Novell case. That in turn would destroy SCO's legal standing to continue that case for any code involved in both the IBM and Novell cases. In the Novellcase, to the extent that SCO holds no relevant copyrights, any Novell public statements to the contrary could not have slandered SCO's title to those copyrights. An initial Novell motion to assert collateral estoppel offensively would probably be based on SCO's lack of standing rather than on the truth of Novell's allegations that it is the true owner of the copyrights. That is because a standing challenge is jurisdictional in nature and avoids the factually more complicated issue of whether Novell itself holds valid copyrights.

As has become crystal clear, the ownership and scope of relevant copyrights in Unix is a quagmire. The side that has the burden of proof on that issue is likely to lose it. A standing challenge based on the decision in the IBM case would therefore whittle SCO's slander of title case to any code not necessarily implicated in the IBM decision. Moreover, Novell should get the benefit of any failure of proof by SCO on the standing issue, because a plaintiff always has the burden of proof and persuasion on jurisdictional issues. Truth as a defense, however, is not jurisdictional and places on Novell the burden of proving that SCO does not hold valid copyrights. So the more whittling Novell can do via the standing challenge, the fewer issues it will have to deal with under its own burden of proof. Should SCO's case survive that whittling, it is likely that SCO would drop what is left of its case, if anything is left at all.

Fifth, Novell -- and any of the parties to other cases facing SCO copyright claims to Linux code -- have incentives to let the issue be decided in the IBM case. Let IBM fire the first salvo. Novell and the others can still fire their own shells in their own cases if there is anything left of SCO's claims of copyright ownership after the judgment in the IBM case. Should IBM lose the copyright issues, the right of Novell and the other companies to litigate factual issues in their own cases remains unaffected; only the Judge Kimball's rulings on the law might create barriers. They still would have the right to litigate their factual claims, and for those outside the jurisdiction of the Utah federal district court, even the judge's adverse legal rulings would not be binding (but might still be persuasive).

But because Novell and the other litigants are not parties to the IBM case, the doctrine of collateral estoppel can not apply from the IBM case to them. The doctrine is intended only to prevent those who have lost an issue from relitigating the same issue in another case. It does not apply to those who have not litigated the issue. Moreover, the right to have collateral estoppel apply in the other cases runs from entry of judgment in the IBM case, so the companies opposing SCO in the other cases can simultaneously move for judgment, forcing SCO to litigate against everyone at once during the time it also has to prepare for appeal of the IBM case.

Sixth, Novell and the other parties to cases involving SCO's copyright claims in Linux code have not exercised their right to intervene in the IBM case. They meet the Rules criteria for intervention of right, that they are so situated that Judge Kimball's judgment may, as a practical matter, affect the exercise of their rights. That Novell and the other parties have not already exercised that right indicates that they are even less likely to do so now. A potential intervenor is supposed to intervene when they first realize their rights may be affected by disposition of another case. Undue delay is grounds for denial of intervention. Let's just say that the IBM case has from the beginning of the other cases been a very large elephant in the "room" of undue delay. Also, intervention can be denied where an intervenor's interests are adequately being represented by an existing party. In light of Judge Kimball's very pro-IBM ruling, it would be more than a stretch for the other companies to argue that their interests in the copyright issues are not being adequately represented by IBM and its lawyers, another grounds for denial of an otherwise proper intervention as of right.

Seventh, Novell suffers scant cognizable injury by awaiting decision in the IBM case. It is the defendant, not the plaintiff. It did not ask for that lawsuit to be filed and considered. It has raised no counter-claims. There is little risk that relevant evidence may go stale while it waits. To the extent that an important witness contracts a fatal disease or other need arises to preserve evidence, Novell can seek relief from any stay and its motion would almost certainly be granted forthwith. Plus, Novell can likely avoid most expenses of preparing its defense if the Novell case is stayed.

Eighth, all judges in the other cases involving SCO copyright claims have decided to stay them until the IBM case is decided. None of them have stayed their cases until the Novell case is decided. Judge Kimball said he is going to decide the copyright issues in the IBM case. The judicial consensus seems to be that the IBM case should go first. All concerned eyes are on the IBM case in Judge Kimball's court. Except for SCO's appeal from the dismissal in the Daimler-Chrysler case, which was not based on copyright issues, the rest of the judges are not going deal with further SCO Linux litigation until they can see what rulings Judge Kimball makes in the IBM case.

If I were Novell's lead attorney, I would probably be working on an expedited motion for a stay of the Novell case pending Judge Kimball's disposition of the IBM case. The moment seems right.


  


Some Implications of Judge Kimball's Ruling, by Marbux | 297 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT
Authored by: Anonymous on Friday, February 11 2005 @ 08:03 AM EST
<A HREF="http://www.example.com">Clickable link</A>

[ Reply to This | # ]

Corrections
Authored by: Anonymous on Friday, February 11 2005 @ 08:04 AM EST
Where and what...

[ Reply to This | # ]

Copyright ownership isn't necessary
Authored by: Anonymous on Friday, February 11 2005 @ 08:35 AM EST
Novell could win even if tSCOg did actually own the copyrights. (we know they
don't.) For tSCOg to win, they have to show that Novell acted with malace. In
other words, they have to show that Novell had no reasonable grounds to believe
that it had ownership of the copyrights.

<rant>In that light I don't understand why we still have a Novell case.
"The law grinds slow but exceeding fine." No guys, the works are
gummed up and the grinding we hear is the sound of stripping gears. For cases
with so little merit to still be in the courts is a sign of deep
malaise.</rant>

[ Reply to This | # ]

Implications of Judge Kimball's Ruling for Novell, by Marbux
Authored by: Anonymous on Friday, February 11 2005 @ 08:36 AM EST
One possible implication that you overlooked is that Judge Kimball intends to
dissmiss SCO's Novell suit. In that case, the IBM suit would be the only way of
addressing the Copyright issue.

deMareG

[ Reply to This | # ]

Further implications of Judge Kimball's Ruling?
Authored by: Anonymous on Friday, February 11 2005 @ 08:37 AM EST
One aspect that struck me forcefully in reading Judge Kimball's rulings is the
following: he did not just say SCOG had failed to present a credible case, he
also pointedly contrasted this with SCOG's public pronouncements. To me, he was
strongly hinting that he suspects fraud and is angry about it.

What do others think? Assuming no significant new evidence comes to light, are
the principals behind the SCOG litigation facing a future RICO action?

[ Reply to This | # ]

OT: Non-anonymous
Authored by: marbux on Friday, February 11 2005 @ 09:24 AM EST
Because the original OT thread was accidently begun by an anonymous post, which
will block viewing by those who have set Geeklog to filter out anonymous
posts/threads, I suggest that folks use this thread instead. However, because it
appears below the anonymous OT thread, truly committed OT fans may want to
temporarily unblock anonymous threads and check the original OT thread.

---
Retired lawyer

[ Reply to This | # ]

What are SCO's options?
Authored by: Anonymous on Friday, February 11 2005 @ 09:26 AM EST
Assuming that SCO really has competent, responsible legal
representation in this case, what possible real options
does SCO have at this point?




[ Reply to This | # ]

Is this what Kimball is thinking ...
Authored by: Wol on Friday, February 11 2005 @ 09:27 AM EST
Judge Wells has ordered broad discovery. Judge Kimball has implied he expects
(indeed, has he even invited?) an appeal by IBM.

His ruling turning down the counterclaim has gone on about PWC v Liu.

Is that a broad hint to IBM that they should appeal Wells' ruling by quashing
PWC v Liu - and thereby quashing the contract theory - showing that SCO has no
"work for hire" claim to IBM's work.

It certainly seems that that is all Kimball is waiting for. Quash the "work
for hire" theory, overturn Wells' discovery order, close discovery, and all
the CCs get granted. Bang! SCO are gone.

Cheers,
Wol

[ Reply to This | # ]

Terminating IBM's contract
Authored by: feldegast on Friday, February 11 2005 @ 10:06 AM EST
Could someone please tell me, what was SCO's reasons for terminating IBM's
contract? it can't be copyright as they state that the only copyright
infringement they are accusing IBM of is post termination...

---
IANAL
The above post is (C)Copyright 2005 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use

[ Reply to This | # ]

Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: PLCF on Friday, February 11 2005 @ 10:09 AM EST
IANAL so take this with a large grain of salt. I think that the Novell case
will be dismissed because SCOX cannot show malice. If this happens that leaves
the copyright issue unresolved. I do think that judge Kimball's rulings to date
show that he wants all of SCOX's litigation to be resolved to the best of his
abilities. To that end he can clear his plate of the Novell case and decide the
copyright issue in the IBM case. It is nice that judge Kimball has both the IBM
and Novell cases. So in essence I agree with you except I think dismissal, not
a stay.

Thanks the informed opinions, and keep up the good work.

[ Reply to This | # ]

Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: Anonymous on Friday, February 11 2005 @ 10:13 AM EST

And for those who still think a Discovery Dump is a good idea:

Humorix

Toon Moene (not logged in while at "work")

[ Reply to This | # ]

eWeak -- Laura Dildo and Steven J. Vaughan-Nichols
Authored by: Anonymous on Friday, February 11 2005 @ 10:17 AM EST
PJ posted a link to a Laura Dido quote:

"But DiDio said she still has her doubts about Linux's intellectual
property foundations". "There is a larger issue, though: Even if the
SCO case gets dismissed entirely, it does not remove the copyright cloud hanging
over Linux and open source."

Laura is so ignorant, that she confuses copyright with IP. LMAO.

Then someone posted a comment, "What copyright cloud?". And goes on
to say how can eWeak print her comments without substantiating her remarks.

Here's my theory:

These journalists and analysts have made their careers (some may have even
gotten rich) with Windows. They were/are cogs in the Microsoft PR machine. Now
that everyone is finding out the truth about Windows/Microsoft and the rise of
Linux, it threatens their revenue, so they resist the change.

Laura will certainly resist the change the most, because she has no real skills,
she's just been riding the MS PR wave. Write or say something good about MS,
you get money thrown your way, some journalist are the same. These people are
not real journalists or analysts, like PJ, they are cogs in a massive PR
machine.

Linux is transparent, open for everyone to see. Microsoft and company are
closed, hidden from view. Most people only get their info from those that are
cogs in the PR machine.

[ Reply to This | # ]

Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: gressil on Friday, February 11 2005 @ 10:26 AM EST

"Of course, there's always a contrarian, in this case the eternal optimist and rooter for all things SCO, Laura DiDio, who remembers the Red Sox coming from behind last year and beating the Yankees after being down 3-0."

O'Gara has just waded in:

Is she living in some sort of parallel universe?

Chris

[ Reply to This | # ]

Time for SCOx lawyers to make a "castling" move.
Authored by: Anonymous on Friday, February 11 2005 @ 11:03 AM EST
It's a chess match from here on out. The board is laid out and the pros that
watch these matches all the time are all on the side that SCOx is working from a
very weak postition.

No FUD.

If we were to think of this IBM case as a chess match:
http://www.conservativebookstore.com/chess/castling.htm
"Castling is a special defensive maneuver".

If SCOx has any infringement evidence that they are holding back. They might
make this castling move, soon. If, they have any? Otherwise, their dig into
IBM code, given their lack of a pure copyright status, regarding Linux... is an
effort of desparation.

The only channel that they might have open to them to argue that they would get
anything from IBM is in an area where they "independently developed and
OWNED and copyrighted" 64 bit code for the Intel Processor. Monterey.
But, that effort would be futile if IBM drops the INTEL chip revenue and code
and instead pursues income from the new chip by IBM, SONY and TOSHIBA called the
"cell"! I don't see IBM paying royalties to SCOx over any IA-64 code
that was not agreed upon in Monterey. So, if SCOx beats IBM on the IA-64 code
arguement in this case, then INTEL chips will become less desired by the LINUX
users around the world. As then SCOx would own some UNIX code that they could
play with. Intel would not be happy with this situation. If this happened
Intel should buy SCOx SOON to head off this thype of a decision (where SCOx's
value would increase if this happened and Intel would have to pay more for
SCOx)! Intel would not want to be in a position where Microsoft ruled their
chip development from the WinTel side and where SCOx ruled from the other side.


Remember, the code that SCOx got from Novell is not the only code that SCOx has.
Santa Cruz Operation (not Caldera/SCOx) was involved in the IA-64 efforts (how
much of that effort that was transfered to Caldera/SCOx is one question that is
on the table too)!

Intel should buy SCOx and free any code that they can. Then everyone would
happy and INTEL would be a REAL hero.

[ Reply to This | # ]

SCO Speaks
Authored by: Anonymous on Friday, February 11 2005 @ 11:29 AM EST
In this Eweek Article Blake Stowell speaks.

As for the IBM-SCO case at hand, Rosen observed, along with the others, that, "SCO has backtracked so much on its complaints about Linux that the notion of Linux copyright infringement is no longer an important part of the lawsuit."

Speaking just for himself, Rosen said, "We should let SCO and IBM continue to battle over the remaining contract causes of action until, ultimately, SCO will crawl back into its grave with the stake in its evil heart."

SCO, however, doesn't see it that way. "We are pleased by the court's order denying all three of IBM's motions to effectively dismiss SCO claims without a trial," said Blake Stowell, SCO's public relations director. "Coupled with last month's ruling from the magistrate judge on discovery, we are looking forward to our day in court."

RE

[ Reply to This | # ]

Where in JK's ruling does it FORCE SCO to use REAL EXPERTS?
Authored by: Anonymous on Friday, February 11 2005 @ 11:45 AM EST
Judge Kimball stated that SCO produced no "credible" evidence of IBM's

alleged copyright infringement.

Does this alone force SCO to use REAL EXPERTS to examine the code
produced by discovery?

This would be a very expensive process if true - at $500/hour per expert.
SCO can go bankrupt in the process of doing REAL discovery.

[ Reply to This | # ]

Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: sonicfrog on Friday, February 11 2005 @ 12:11 PM EST
If I read this correctly, this is where the judge tells everone involved that
we're going to get to the bottom of this, in such a way as to leave little doubt
about the certainty of the outcome. I.O.W "SCO, put up or shut up"!

"...Having reviewed not only the instant motions, but also the parties'
recent briefs on discovery issues, the Magistrate Judge's Order of January 18,
2005, and the briefing filed to date on IBM's pending motions, it has become
clear to the court that many of the claims and counterclaims are dependent on
the resolution of other claims and that judicial economy is not served in this
action by entertaining dispositive motions prior to the close of discovery. At
this point, it is apparent that complete discovery is necessary prior to the
just resolution of any claim.7 Thus, the court denies IBM's Motion for Partial
Summary Judgment on SCO's Breach of Contract Claims and on IBM's Motion for
Partial Summary Judgment on Its Claim for Copyright Infringement (Eighth
Counterclaim) without prejudice to renew or refile the motions after the close
of discovery. After discovery is complete, IBM may file a motion to renew the
motions, in which case its already-filed motions and supporting memoranda will
be reactivated, and SCO may then file new opposition memoranda—or IBM may start
again by filing new motions and supporting memoranda.

PS. Thank you PJ et. al. for your great work!

[ Reply to This | # ]

You are missing the point it seems
Authored by: Anonymous on Friday, February 11 2005 @ 12:22 PM EST
They are willing to go through this to ensure a complete win, a thorough win.
Like in a hospital, doctors scrub themselves for what seems an eternity and with
precision before surgery. Why is that? To be certain that no germs will
survive and infect the patient.

In this situation, a quick win may still leave SCOG "germs" where they
can still infect the patient.

Better to suffer the extra effort and money to be sure that when this is over,
not a molecule of the SCOG infection is left. Not only that, it's important
that other viral entities get the message (you listening Canopy and Microsoft?)
that it is a loosing battle to fight FOSS.

I say Scrub till the skin is raw, and if that takes a while, so be it.

[ Reply to This | # ]

Laua Didio gets it!
Authored by: Anonymous on Friday, February 11 2005 @ 12:45 PM EST
"...this case could turn out to be the biggest nothing since Geraldo Rivera
opened Al Capone's vault on national TV and didn't even find cockroaches!"

Such a colorful turn of phrase. It is really encouraging to see such talent at
work!

[ Reply to This | # ]

Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: blacklight on Friday, February 11 2005 @ 12:55 PM EST
In (almost) retrospect, SCOG did not pick on IBM as an adversary of its own size
but on IBM as an adversary of the size of SCOG's own ego (or hubris if you are
into Greek).

[ Reply to This | # ]

Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: codswallop on Friday, February 11 2005 @ 01:15 PM EST
I missed the copyright bit too. It looks like he has finally had it with SCO's dancing around this point. I have a small correction and some questions.

You say:

Truth as a defense, however, is not jurisdictional and places on Novell the burden of proving that SCO does not hold valid copyrights.
I don't believe this is correct. Slander of title has a number of special requirements, and IIR demonstration of title is one of them. Judge K. cites a 1988 Utah case - Bass v. Planned Mgt. Servs, inc. The problem for Novell at the motion to dismiss stage is that all they have to challenge with is SCO's own filed documents viewed in the most favorable light to SCO. Because of the remote possibility of useful extrinsic evidence being discovered, Judge K. can't really dismiss on the contract language, though he came very close. SCO seems to always be hoping that when it comes to discovery, there'll be a pony in there somewhere.

Right now what I'm wondering about is the scheduling order. The discovery on the meaning of the contract has nothing to do with the AIX discovery. Can Judge K. close discovery on the contract issue as scheduled and let only what Judge W. ordered continue past the deadline? This would allow IBM to refile the contract claims psj very soon.

It seems to me this would expedite things more than opening the copyright can of worms. IBM winning the contract issue wouldn't stop deciding the copyright issue, because that's a counterclaim. It will survive the destruction of SCO's case. There's no way IBM will give up on it.

Another thing I want to mention is that it seemed to me that Judge K. actually wanted IBM to appeal and was doing everything he could to make it easy and let IBM supplement the record. It occurred to me that if IBM wins, it speeds things up with no risk of later reversal on appeal. If he denied discovery, SCO could appeal after final judgement, and he could have the whole mess back again. This way it's settled, one way or another.

Finally, it looked like Judge W. used the Sontag declaration as expert evidence, even though Judge K. said in his opinion that it was ignored. Am I missing something, and is that a reversible error on the part of Judge W?

---
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 | # ]

If cases are decided by the record of the case
Authored by: whoever57 on Friday, February 11 2005 @ 01:21 PM EST
.. why did Kimball not grant IBM's CC 10 regarding copyrights? Since the record
shows zero evidence that SCO actually owns any copyrights and ownership is
neccessary for SCO to prevail, surely the record in the case is sufficient to
grant CC 10.

There is no discovery from IBM that will add any evidence one way or another to
the ownership question. Now, clearly, Kimball knows that the ownership is in
question, but surely, unless SCO provides some possible claim to ownership IN
THIS CASE, he can't consider it? Thus, IBM's suggestion that SCO does not own
the copyrights should be taken as a fact and thus CC 10 should have been
granted.

I assume there is an error somewhere in my logic -- someone care to explain?

[ Reply to This | # ]

Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: Anonymous on Friday, February 11 2005 @ 01:50 PM EST
"Dewey defeats Truman!"

[ Reply to This | # ]

Novel does not WANT to litigate copyright ownership?
Authored by: darkonc on Friday, February 11 2005 @ 03:45 PM EST
From my view of things, Novell doesn't want to litigate copyright. They've had ample opportunity. I thought that Kimball's request for SCO to refile their motion was a thinly-veiled request for Novell to properly assert that SCO didn't have copyright (rather than just that there was a question about it.

Novell pointedly ignored that hint (which would have allowed a much faster collapse of SCO's entire case), so he's now stuck with letting IBM do it.

I really don't think that Novell needs to stay their case. It looks pretty much done to me, and it won't affect the IBM case because it only asks for a finding that SCO doesn't have clear title, which is very different from (and easier than) having to show that they don't have any at all.

If SCO decides to continue the case after an adverse finding, then I'd expect that Novell migt ask for a stay at that point, since anything that might be left would at least partially overlap with the questions in the IBM case.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Here's one possibility I see
Authored by: NastyGuns on Friday, February 11 2005 @ 04:17 PM EST

IANAL but I see the following as a possibility:

Taking into account the fact that Judge Kimball is also responsible for the SCO/Novell issue, he knows how he wants to rule already. Knowing IBM would object to the discovery issue from Judge Wells, it gives him (Judge Kimball) the chance to clear the table of nearly all pending motions.

Judge Kimball knows that there will be plenty of time to issue a ruling in the Novell case before IBM receive their answer from Judge Wells on reconsideration/clairification. IBM will appeal the discovery ruling, SCO will no doubt need to object to the appeal. This process will eat up much of the intervening time from now until Judge Kimball gets SCO/Novell in front of him.

Judge Kimball can then make a quick ruling before Judge Wells is able to have a hearing on the "reconsideration" request by IBM. The newly issued ruling from the Novell case giving IBM that little extra 'umph' needed to persuade Judge Wells that the discovery isn't warranted. And because Judge Kimball's cleared the pending motions, IBM will have a chance to refile their SJ motions anew, using the SCO/Novell ruling to disect the case even further.

Thoughts?

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NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

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Loose Ends.
Authored by: jim Reiter on Friday, February 11 2005 @ 04:18 PM EST


IBM still has 7 counter claims that have not been touched
by this ruling.

The question of patents has not been addresses.

The question of Novell's retained rights under the APA, as
amended,especially 4.16 (b) has not been addressed.

Will TSG be allowed to make any "New Request for
discovery". I believe that today, 2/11/05 was to be the
end of discovery?

Will TSG be required to show progress on the analysis of
the materials procured through discovery at sometime in
the near future?

Will the court set a cut off time for the analysis of the
discovery materials?

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Something I hadn't noticed:
Authored by: darkonc on Friday, February 11 2005 @ 04:41 PM EST
At the end of Didio's note, she quote's SCO's Stowell:
"We are pleased by the court's order denying all three of IBM's motions to effectively dismiss SCO claims without a trial,"
So we now have it clear that SCO knows that these motions could have essentially dismissed it's case, yet they submited essentially no evidence to support their case.

Given that, the probability of them having hidden their data (as per Didio's musings) are essentially zero. At this point, their only hope would be to find a needle in the haystack of disclosure which has just been ordered from IBM.

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Liu v. Price Waterhouse
Authored by: GLJason on Friday, February 11 2005 @ 04:59 PM EST
I've thought this argument has been ridiculous since SCO first brought it up in a slide at SCO Forum in 2003, but Judge Kimball bringing it up has given me pause... For those not familiar with the case, Price Waterhouse had their employee, Yang, recruit Chinese programmers to speed up a piece of their software. The agreement would have "all source code" returned to PW:
It is clearly understood that the source code is the sole property of Price Waterhouse and Price Waterhouse gives no authority, implied or otherwise, to distribute or copy this source code in any way. Upon completion of the project, ALL source code will be given back to Price Waterhouse.
In short, the jury and the 7th Circuit appeals court agreed that PW would own the copyright in the derivative work. This seems far distant from SCO v. IBM since the contract gives no ownership interest in derivative works. Amendment X and the side letter, along with numerous declarations from people involved in the contract, all say that IBM would own it's own code in the derivative works. There was no provision to even allow AT&T to view the changes that IBM made, let alone return all source code to AT&T and forbid IBM from any distribution or copying it. PW paid Yang to make the changes, in this case it was the other way around, IBM paid AT&T for the use of their software. So why would Kimball mention this?

Another thing I find troubling is that the jury and appeals court found that the copyright would revert to PW, even though there was no written transfer of copyright. In none of the contracts or agreements was the ownership of the copyright in the derivative work specifically mentioned. Why does this trouble me? Well, it's the same deal with the Novell case. Novell doesn't specifically sign over the copyrights (in fact they exclude them, except for the ones "necessary" blah blah blah), but the same language is used, Novell was selling the source code and the products.

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Aiming for Section 4.16?
Authored by: AMc on Friday, February 11 2005 @ 05:14 PM EST
When I was reading Marbux comments, something came to mind from a public admin
class ages ago. That put my mind wondering about the direction that Judge
Kimball might be going.

Sometimes an issue that creates problems for city planners is perpetual leases.
A building owner sells a perpetual, unrevokable, non-transferable license to a
tenant; sometimes for a lump sum. The building owner has a permanent tenant on
the books with a substantial amount of cash in hand; the tenant doesn't have to
worry about a lease being hiked or pulled out from under them. Every body is
generally happy.

Forward a few years. The owner decides that property management in a major city
isn't to his liking. So he sells the building. He brings in his attorneys, and
the so does the buyer. In the course of the negotiation to sell the topic of
the perpetual leases comes up. They are usually moved to a contract amendment
laying out what the building buyer can and can't do. Because of the third party
involvement, in this case the tenant, the buyer can't simply change or void the
perpetual lease. They would have to honor the existing lease, or negotiate a
new one with the tenant.

If this is reasonably accurate (the class was nearly a decade ago and isn't
something in my normal line of work so my memory is suspect) then lets compare
it to SCOG vs IBM. If not, feel free to call me a loon and move on.

The real issue would become whether SCOG has standing to revoke IBM's license.
Standing is determined by Section 4.16 of the APA. 4.16(b) tells us the
specifics of the contract. This prohibits the Buyer (SCO) from amending,
modifying, assigning rights to, waiving, or supplementing any existing SVRX
license without prior written consent. It then provides the Seller (Novell) the
right to take action on the Buyers behalf. Based on the original APA, this
allows only Novell to act in regards to the perpetual SRVX licenses.

Enter the Amendments, specifically #2. This expansion of the terms creates the
ability for the Buyer to enter into amendments through the sales/licensing of
the Merged Product and Unixware or their future revisions. Essentially the
Buyer secured the right to negotiate the sale or licensing of technology it
developed, or add CPU's to the existing SRVX licenses. In both cases prior
written permission was required to enter into the negotiation. Further the
language did not change the original terms, meaning SCO still couldn't effect
any change to the perpetual licenses.

The key here is viewing 4.16 and the SRVX licenses as referring to those
licensees with perpetual or special consideration with Novell. So based on the
language of the Amended APA, and leaving aside the issues of successor in
interests, at the bare minimum SCOG must be able to show:

- Written notification to Novell that it was seeking a new contract with IBM
- Signed contract with IBM adding SCO/SCOG created technology to be licensed
- Written notification to Novell that it felt IBM had violated the terms of
either the Novell/IBM SRVX license or the SCOG/IBM SRVX Extension contract
- Written notification to Novell and IBM of the disputed actions
- Written request to Novell claiming inadequate response from IBM requesting a
suspension
- Agreement from Novell that a suspension was warranted, and a date of action
- Joint notification from SCOG and Novell suspending IBM's SRVX license and/or
SRVX Extension licenses

After a quick browsing of the documents listings, I don't see anything
resembling any of the above. Even if SCOG legally holds the copyrights, they
are still bound by 4.16(b). Based on that sequence alone, SCOG has no standing
to make any contract claim to IBM without going through Novell first. As long
as there is no revised contract between IBM and SCOG, there is no standing for
contract termination. This resolves not only IBM's interests, but also those of
the other perpetual and SRVX licensees (who have been strangely silent during
this entire affair).

This also quickly ends the SCOG vs Novell affair. The interesting thing to me
on reviewing the contract is the Buyer would be forced to work through Novell
for any license issue, positive or negative. Malice generally can't be shown if
Novell had a contractual obligation to act. DCC is also ended before the appeal
process, as it was one of the SRVX licensees covered by 4.16. Autozone may or
may not be a 4.16 licensee, but for the moment I will assume that they aren't.
That brings us back to the question of copyrights.

Copyrights could be settled in SCOG vs IBM as a result of the Lanham
counterclaims. Judge Kimball has already shown a decided skepticism towards
SCOG's copyright claims. Without a solid letter of transfer SCOG is quickly
drifting on the tide. It's the issue they have pointedly avoided for two years.


Using the successor in interest rules from the APA here could resolve the issue
of copyrights, as a transfer from SCO to SCOG under any circumstances would
force both approval and right of first refusal from Novell. This is very
speculative, but the very fact that there was a cash/stock exchange involved
makes the APA terms relevant. If this would hold true, it would force the
contract issues away from 'Did the copyrights transfer?' to 'Were the terms of
Change of Control met to make the contract valid for SCOG?' The evidence that
has surfaced to date in the Novell trial has not shown any of the supporting
paperwork for SCOG having followed through with Novell. If SCOG (or for that
matter SCO) didn't follow through, they would have no rights to anything listed
on the APA in any version.

Possible? Not possible?

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Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: Anonymous on Friday, February 11 2005 @ 06:17 PM EST
From my memory this is how SCOG's case is going, correct me if I'm wrong or
missed anything.

SCOG's only chance, so it seems to me is that they will start with early
versions of AIX/Sequent code that were derived directly from SysV code. Then
trace code derivation to current AIX/Sequent/Linux code claiming that
reguardless that who owns the code according to contracts the code should not
have been disclosed as it is still a trade secret. By judge Wells giving SCOG
unfettered access to early code they undoubtedly will find (on their fishing
expedition) some derivitive of a derivitive of a ... ad infititum some code that
they will argue should not have been open sourced. When they filed the case
against IBM they had not a shred of evidence but may get some of this because of
Judge Wells ruling that IBM give them all AIX code from the time SysV code was
licsensed.

Ah, but they still have to prove ownership of the code, when Caldera(SCOG)
bought SCO (Santa Cruz Operation) they did aquire all of SCO's IP, which may or
may not be a valid transfer of copyrights through the merger document that
states what IP they recieved is still missing. SCOG will also have to prove that
Novell transfered SysV copyrights to SCO which seems in doubt as SCO never asked
that any copyrights be transfered. Even if they get over those two high hurdles
they would still have to show that Novell owns the copyrights that SCOG needs to
pursue thier case against IBM among the other gang of defendants.

Then SCOG has to answer that they were told by Novell to cease any actions
against IBM and the other gang of defendants per the APA.

They have a snowballs chance heading to h*** of proving any of this.

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Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: urzumph on Friday, February 11 2005 @ 06:45 PM EST
"Judge Kimball is the presiding judge in both the IBM and Novell cases. His resources would not be used efficiently were he to supervise development of two separate case records on closely related issues, particularly if resolution of the issue in one case is likely to resolve the same or substantially overlapping issues in the other case."

I fully agree on this point. Especially now Kimball is actively managing this case, if Kimball can pause the Novell case to give him more time on this one, then he'll probably do it.

"Judge Kimball has discretion to consolidate both cases for the limited purpose of determining the copyright issues, but two records are still required and consolidation would delay disposition of the more procedurally advanced IBM case and add unnecessary complexity to it, so I believe he is unlikely to exercise that discretion."

Perhaps. The issue I see here is that, give or take, SCO has 50% of the available & relevant evidence, and Novell has 50%. If Novell is not a party to deciding who owns "it's" copyrights, unable to defend it's claim and present evidence (except in 3rd party dispositions, which I am told are limited) in it's own favour. Thus, if it was ruled that SCO owns the copyrights (ignore how for a moment) then Novell would undoubtably re-litigate the whole thing, wasting vast amounts of time and money. SCO may also argue that it is unable to get the evidence it requires from Novell because they are not a party. (can they get it through the other case? is that legal?)

"First, because IBM seeks a clean bill of health on all of its Linux activities which include copying and distribution of the entire Linux kernel, a clean bill of health for IBM is a clean bill of health for Linux too."

Ignoring the somewhat unlikely event of a patch set being tainted by copyright, but not the actual kernel, I agree.

"Second, preparation of the IBM case is more advanced and were the cases consolidated, Novell would be entitled to have the discovery deadline extended while its lawyers catch up with IBM's and SCO's case preparation."

Which it will have to be anyway, because there's buckley's chance IBM can give them everything they are supposed to by the cutoff (which is ~ 2 weeks time, IIRC?), and IBM is taking time to give Judge Wells a motion to claify / reconsider, which further reduces the available time.

"Third, the copyright issues in both cases are not necessarily mirror images.... From the judge's perspective, it probably is better to process the cases in sequence rather than in parallel and see what remains for the Novell case after he rules in the IBMcase. (But that also suggests Judge Kimball will require excruciatingly detailed proof from SCO in theIBM case on precisely which code involves which copyrights. Otherwise, he runs the risk of partially inconsistent judgments in the two cases, which is grounds for reversal.)"

If, as you suggest, they run the cases in series, then it is Imperative that they put the Novell case first. SCO and Novell are the correct parties to fight over who owns what, not IBM. IBM doesn't know (and hence can't rebut) and for the most part, probably doesn't (or at least, didn't at the time the contract was written) care because it's all licenced to them anyway.

"Fourth, if SCO loses the copyright ownership issue in the IBM case, its case against Novell becomes largely a house of cards that will tumble....."

In the somewhat unlikely event that SCO wins though, it requires you to continue the slander of title case, as well as quite probably a Novell re-litigation over the copyright issue, which is not nearly as clean.

"As has become crystal clear, the ownership and scope of relevant copyrights in Unix is a quagmire. The side that has the burden of proof on that issue is likely to lose it."

Which is then intresting, because it could cause a state where _nobody_ owns the unix copyrights.

"Fifth, Novell -- and any of the parties to other cases facing SCO copyright claims to Linux code -- have incentives to let the issue be decided in the IBM case. Let IBM fire the first salvo....

But because Novell and the other litigants are not parties to the IBM case, the doctrine of collateral estoppel can not apply from the IBM case to them...."

If this is true, it has some possible ramifications that would result in a lot of extra litigation. Let's say that SCO wins the copyrights in SCO v IBM. (perhaps because IBM doesn't have access to enough discovery, as I meantioned above) If then Novell re-litigates the issue, and Novell beats SCO (because they aren't collateral estopped) then, as I see it, both SCO and IBM have grounds for appeal on 2 seperate cases. SCO because "but, we already own the copyrights, we already argued that and won!" and IBM because "Hey! SCO doesn't own the copyrights! Our case was rigged!"

"Sixth, Novell and the other parties to cases involving SCO's copyright claims in Linux code have not exercised their right to intervene in the IBM case.... A potential intervenor is supposed to intervene when they first realize their rights may be affected by disposition of another case. Undue delay is grounds for denial of intervention...."

Can a judge force a party to join a suit? Simply for the reasons I suggested above?

Of course, I am not a Lawyer, or a Judge for that matter, that's just a couple of issues I see with that suggestion. Assuming SCO loses everything, your theory works, if not, it might mean much extra work. Would a judge take that chance?

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Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: grouch on Friday, February 11 2005 @ 07:03 PM EST
"My working hypothesis is that the ruling will trigger the Novell case
being placed on hold until the judge rules on the copyright issues in the IBM
case."

It looks to me like the only thing that will force SCO to "establish (1)
that SCO owns valid copyrights in the UNIX software, and (2) that IBM has copied
protectable elements of the allegedly copyrighted UNIX software" is IBM's
Tenth Counterclaim. That means sometime after discovery ends, at the earliest.
(Next century?)

IBM would have to submit a motion for summary judgement, again, or the issue
would seem to have to wait until SCO's claims were dealt with by trial. Are
claims and counterclaims dealt with simultaneously at trial or are they dealt
with in sequential trials?


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disability is an essential aspect." -- Tim Berners-Lee, inventor of the WWW

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Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: Anonymous on Friday, February 11 2005 @ 09:00 PM EST
I don't think anymore discovery will help SCO since first on the table is the
copyright issue. It will do no good to dive into IBM code looking for copyright
infringement when the copyright is in question.

So the way I see it, SCO must first prove copyright in order to claim any
infringement. IBM may just request a stay on discovery until SCO can actually
prove FIRST of all that it owns any code at all which might be infringed and
which is part of the Unix package that was contracted by IBM. This before we
determine that it may have found its way to AIX and/or Linux. If SCO can't
prove copyright, then any and all code held by IBM or Linux is clean and any
further discovery is moot.

So the burden of proof must first be, prove copyright before we provide any
further code. Failure to show ownership kills the discovery. a.k.a Grayhawk

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Some Implications of Judge Kimball's Ruling, by Marbux
Authored by: Anonymous on Monday, February 14 2005 @ 11:03 AM EST
.....not forgetting all of the public statements about the 'billyuns' of lines
of code. That's the same as evidence right?

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