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The Transcript of the April 21, 2005 SCO v. IBM Hearing |
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Wednesday, May 18 2005 @ 03:37 PM EDT
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At last, thanks to Chris Brown, who picked it up for us at the courthouse, we have the transcript of the April 21, 2005 hearing [PDF] in SCO v. IBM. This hearing was about the SCO motion to compel the deposition of Sam Palmisano and its motion to amend their complaint and some on IBM's motion to limit its 9th Counterclaim's scope. Thanks, Chris! I haven't read it yet myself, but I couldn't wait to share it with you. Let's read it together. Note that it's a huge file, and it may take a while to resolve. Once it does, if someone has time to break it up into pieces, it'd be a kindness for our dialup users.UPDATE: Here you go, the transcript split into 4 parts: Part 1
Part 2
Part 3
Part 4
Or in even smaller chunks, about 10 pages each: Part a
Part b
Part c
Part d
Part e
Part f
Part g
Part h
Part i
Part j
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Authored by: rsteinmetz70112 on Wednesday, May 18 2005 @ 03:47 PM EDT |
For this and all of the other work you put in.
---
Rsteinmetz
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 18 2005 @ 03:53 PM EDT |
Is anyone else getting this message when opening the PDF up? I get it under
both Adobe 6.0 and 7.0. :-/[ Reply to This | # ]
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Authored by: Chris Lingard on Wednesday, May 18 2005 @ 03:53 PM EDT |
Cannot read it here
Error (0): PDF file is damaged - attempting to
reconstruct
xref table...
Error: Kid object (page 51) is
wrong type (null)
Error: Page count in top-level pages object is
incorrect
Error: Couldn't read page catalog
1441792 May 18
20:49 Hearing-2005-04-21.pdf
lincoln:~$ md5sum
Hearing-2005-04-21.pdf
b565a894ef9827c6cf0cd15da40e6422
Hearing-2005-04-21.pdf
[ Reply to This | # ]
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Authored by: overshoot on Wednesday, May 18 2005 @ 03:54 PM EDT |
Please post off-topic material here. If possible, post links as <a
href="http://www.example.com/">clickable HTML</a> please.[ Reply to This | # ]
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Authored by: kurt555gs on Wednesday, May 18 2005 @ 04:02 PM EDT |
I think PJ should have a torrent server set up for these large pdf and other
archives.
This is what bittorrent was meant for. Show the RIAA and MPAA that the main
purpose IS legitimate use.
cheers
---
M$ Delenda Est!
* Kurt *[ Reply to This | # ]
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Authored by: overshoot on Wednesday, May 18 2005 @ 04:03 PM EDT |
Most of us have BitTorrent now, so all we'd need would be a tracker at
groklaw.net -- any chance of adding trackers so PJ only needs to seed the
download?[ Reply to This | # ]
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- Bittorrent - Authored by: Anonymous on Wednesday, May 18 2005 @ 04:28 PM EDT
- BitTorrent - Authored by: Anonymous on Wednesday, May 18 2005 @ 04:29 PM EDT
- Bittorrent - Authored by: MathFox on Thursday, May 19 2005 @ 07:28 AM EDT
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Authored by: Anonymous on Wednesday, May 18 2005 @ 04:27 PM EDT |
Can someone please link to the previous Groklaw story discussing this hearing? I
want to read again what the deal was with "trusting our water"... I
think it was mentioned in that. TIA![ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 18 2005 @ 04:52 PM EDT |
I have the transcript split into 10 PDFs
pg1-10.pdf
pg11-20.pdf
pg21-30.pdf
pg31-40.pdf
pg41-50.pdf
pg51-60.pdf
pg61-70.pdf
pg71-80.pdf
pg81-90.pdf
pg91-97.pdf
Do you want these posted somewhere?
-archanoid[ Reply to This | # ]
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Authored by: whoever57 on Wednesday, May 18 2005 @ 04:53 PM EDT |
"Mr. Marriott: May I have just a moment, Your Honor? I can segway easily
....."
Yes, I know, it should be
segue. I just found it amusing. [ Reply to This | # ]
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Authored by: sjgibbs on Wednesday, May 18 2005 @ 04:59 PM EDT |
To keep them tidy and facilitate co-ordination.
Please state page numbers clearly and email results in to PJ.
Thanks, SJG
"Efficiency is a clever form of laziness."[ Reply to This | # ]
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- Transcription Claims Here - Authored by: sjgibbs on Wednesday, May 18 2005 @ 05:02 PM EDT
- 80-85 - Authored by: Anonymous on Wednesday, May 18 2005 @ 05:24 PM EDT
- 80-85 - Authored by: Anonymous on Wednesday, May 18 2005 @ 06:41 PM EDT
- 80-89 - Authored by: Anonymous on Thursday, May 19 2005 @ 09:38 AM EDT
- 51-60 - Authored by: UncleJosh on Wednesday, May 18 2005 @ 06:27 PM EDT
- Transcription Claims Here - Authored by: feldegast on Wednesday, May 18 2005 @ 07:20 PM EDT
- 91-97 - Authored by: maxchaos on Thursday, May 19 2005 @ 12:37 AM EDT
- 91-97 sent to PJ, starting on 71-79 - Authored by: maxchaos on Thursday, May 19 2005 @ 01:31 AM EDT
- Transcription Claims Here - Authored by: Anonymous on Thursday, May 19 2005 @ 10:19 AM EDT
- Pages 30-39 completed - Authored by: Anonymous on Thursday, May 19 2005 @ 11:15 AM EDT
- 40-50??? - Authored by: Anonymous on Friday, May 20 2005 @ 07:55 AM EDT
- Transcription Claims Here - transcribed pages 61-65 - Authored by: Laomedon on Sunday, May 22 2005 @ 10:21 PM EDT
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Authored by: Anonymous on Wednesday, May 18 2005 @ 04:59 PM EDT |
MR. NORMAND [for SCO]: The differences between this revised schedule and the
schedule we submitted several weeks before the magistrate's court order relate
to merely timing.
THE COURT: Relate to what? [wish I had a picture of His Honor's face at that
moment]
MR. NORMAND: Timing. The magistrate court order gave IBM, as we understand it,
as of yesterdday --
THE COURT: Most schedules do relate to timing.
MR. NORMAND: Them I'm right.
THE COURT: You are right. You are certainly -- I'll take judicial notice of the
correctness of your last statement.
Excuse me. Go ahead.
MR. NORMAND: Thank you, Your Honor, I have that going for me.
[Bully for you, Mr. Normand.][ Reply to This | # ]
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Authored by: whoever57 on Wednesday, May 18 2005 @ 05:02 PM EDT |
Two things seem interesting to me:
The references to compilers. This is new
AFAIK.
TSG is claiming that TSG should not be bound by what old-SCO knew.
Perhaps one of the lawyers might want to comment on the latter point.
It
also appears that TSG's lawyers were caught in a huge mistake: claiming that
documents were produced after the deadline for amended pleadings. Of course
IBM's lawyers might be wrong about this, but reading the transcripts it looked
like IBM's lawyers had facts to back up this statement, while TSG's lawyers had
nothing. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 18 2005 @ 05:32 PM EDT |
On Page 5, Eskovitz says 'But IBM has attempted to shield Mr. Paul
Palmisano'.
Are they trying to depose the wrong guy? Certainly he's
not the CEO of IBM!!!
IBM/sjp[ Reply to This | # ]
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Authored by: red floyd on Wednesday, May 18 2005 @ 05:49 PM EDT |
He works in Armonk, right by IBM's HQ!
Obviously his law firm is a stooge for IBM, and is sabotaging SCOX's case!
---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 18 2005 @ 06:28 PM EDT |
I see SCO again claiming IBM withheld discovery for over a year when
referencing the courts Jan. order near the end of the document. Is the Judge
ever goign to get tired of hearing this? When is IBM going to start calling them
on their mis-statements?
I also liked the part where Mr Normand responding to IBM's inquiry about
actually being told where the infringing material was - says they (IBM) know
better then anyone else what they contributed to Linux - more or less wanting
them to prove they haven't infringed.
I saw something else there at the end where he suggests IBM should go to the
court if they aren't satisfied with SCO's interrogatory responses. With the way
this case has been going maybe IBM should start putting that in all their
motions and replies - it worked for SCO and CMVC access.
J
[ Reply to This | # ]
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Authored by: error27 on Wednesday, May 18 2005 @ 07:19 PM EDT |
Eskovitz is much sharper than Darl's brother Kevin. He seems like a
professional. I think I could get along with him... The judge is always
ribbing him, but he's smooth... He doesn't get fazed.
Almost everyone on SCO's side is either a complete scumbag (Yarro) or a complete
moron (Kevin and Brent). Potentially people with brains can do much more damage
but it's still a pleasant change.
[ Reply to This | # ]
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Authored by: overshoot on Wednesday, May 18 2005 @ 07:21 PM EDT |
I love pages 62-64. Once again, Marriott cites dead-on case law. Loads from
10th Circuit, capped by Procter & Gamble (a ruling of one Dale Kimball!)
As the Court comments, "I'm a lot more familiar than I ever wanted to be
with Procter & Gamble."[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, May 18 2005 @ 07:37 PM EDT |
Is the clue why SCO wants to add their Monterey copyright claim to the case
In this section, SCO tells us they think the issue of SVR4 code in AIX on Power,
and whether or not it's copyright infringement, turns on the issue of waiver.
They then also tells us waiver is a fact intensive inquiry that can't be
resolved by summary judgement.
In other words, they think they might get this particular claim (even if
meritless) to a jury, rather than have Judge Kimball destroy it by summary
judgement.
And if you track back to the timeline:
1. From all the quotes of SCO's and Santa Cruz' own documents, it's absolutely
clear that SCO knew about the conduct underlying the claim (SVR4 code in AIX on
Power), many many years ago ... but did nothing
2. From the discovery documents date, you also see that SCO got some discovery
from IBM about the conduct underlying the claim (SVR4 code in AIX on Power), in
2003 - months before the deadline for amending pleadings.
3. From the discovery documents date, you also see that SCO got the rest of
discovery from IBM about the conduct underlying the claim (SVR4 code in AIX on
Power), in March 2004 - after the deadline for amendment for pleadings - but
they didn't move to change the deadline, even though they did file other
scheduling motions (see next part)
4. From the SCO's motion in mid 2004 to amend the schedule, they had also this
info on the underlying conduct, they wanted the schedule amended -- but they
didn't seek to move the deadline for amending pleadings.
5. So suddenly in late 2004, despite all this, SCO decides they need to do a
late amendment to pleadings. What changed? Answer: IBM started filing summary
judgement motions, but SCO apparently thinks (as they told us in page 7 part 4)
that a claim based on Monterey/SVR4 wouldn't be subject to summary judgement
Quatermass
IANAL IMHO etc
1. In 2003, 2004, you will also discover that SCO only thought of the idea of
adding this claim *AFTER* IBM started [ Reply to This | # ]
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- Page 7, Part 4 may explain *why* SCO want to add their new claim - Authored by: Anonymous on Wednesday, May 18 2005 @ 07:54 PM EDT
- Page 7, Part 4 may explain *why* SCO want to add their new claim - Authored by: inode_buddha on Wednesday, May 18 2005 @ 08:06 PM EDT
- Page 7, Part 4 may explain *why* SCO want to add their new claim - Authored by: Anonymous on Thursday, May 19 2005 @ 12:41 AM EDT
- SCOG's waiver argument - Authored by: Anonymous on Thursday, May 19 2005 @ 01:10 AM EDT
- I don't think so - Authored by: Anonymous on Thursday, May 19 2005 @ 01:18 AM EDT
- Sorry Quatermass, but I think you've made an error - Authored by: Anonymous on Thursday, May 19 2005 @ 11:10 AM EDT
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Authored by: Anonymous on Wednesday, May 18 2005 @ 07:51 PM EDT |
Okay several motions/issues up for grabs
1. SCO's motion to compel Palmisano deposition? Granted or Denied
2. SCO's motion to amend their complaint? Granted or Denied
3. The scheduling. I'm not going to get into the dates, since both SCO and IBM
agree they are somewhat up in the air because of the Reconsideration motion - so
let's stick to: Will there be a deadline before the close of fact discovery to
identify allegedly misused material (as IBM wants) or won't there (as SCO
wants)?
Place your bets, with reasons if you like
My bets will be in a reply to this post, if you want to place your bets before
seeing mine
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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- My bets - Authored by: Anonymous on Wednesday, May 18 2005 @ 07:54 PM EDT
- Let's have some fun - Place your bets - Authored by: vrimj on Wednesday, May 18 2005 @ 07:55 PM EDT
- Let's have some fun - Place your bets - Authored by: codswallop on Wednesday, May 18 2005 @ 08:29 PM EDT
- My Bets - Authored by: RFD on Wednesday, May 18 2005 @ 08:37 PM EDT
- Let's have some fun - Place your bets - Authored by: Christian on Wednesday, May 18 2005 @ 08:53 PM EDT
- Let's have some fun - Place your bets - Authored by: Kilz on Wednesday, May 18 2005 @ 09:16 PM EDT
- Don't rock the boat - Authored by: RedBarchetta on Thursday, May 19 2005 @ 12:31 AM EDT
- Let's have some fun - Place your bets - Authored by: penfold on Thursday, May 19 2005 @ 01:02 AM EDT
- Let's have some fun - Place your bets - Authored by: Anonymous on Thursday, May 19 2005 @ 04:47 AM EDT
- The third horse is lame - Authored by: Ian Al on Thursday, May 19 2005 @ 07:11 AM EDT
- Let's have some fun - Place your bets - Authored by: moonbroth on Thursday, May 19 2005 @ 07:12 AM EDT
- Let's have some fun - Place your bets - Authored by: Anonymous on Thursday, May 19 2005 @ 08:41 AM EDT
- Let's have some fun - Place your bets - Authored by: Jannex on Thursday, May 19 2005 @ 11:11 AM EDT
- Grant (limited), Deny, Yes - Authored by: chrisbrown on Saturday, May 21 2005 @ 12:31 AM EDT
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Authored by: overshoot on Wednesday, May 18 2005 @ 08:11 PM EDT |
Interesting --- on pages 74-79 Normand argues that regardless of what Santa Cruz
or Caldera knew about IBM's use of SVR4 code, if IBM thought they didn't
have rights to use it then SCOX has a claim. Maybe after all of PJ's work
they've decided to dodge the whole question of who knew what and when did they
know it.
IANAL and all that, but this seems incredibly weak.
For one
thing, they don't appear to have any basis for arguing that IBM-the-corporation
"thought" any such thing, just questions from employees.
For another, I've
heard of lack of intent being extenuating when the actions were in the
wrong, but I've never heard of intent itself being actionable when the
actions were unobjectionable.
Frankly, it looks like SCOX is grasping at
straws in the hope of dragging the whole matter of IBM's knowledge and intent
before a jury. It's the same thing with 3AC and the Palmisano deposition:
they've given up on establishing that IBM did anything wrong and are going for
impure motivation. [ Reply to This | # ]
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Authored by: codswallop on Wednesday, May 18 2005 @ 08:42 PM EDT |
SCO and IBM have completely different takes on this important
issue.
SCO
IBM then argues the issue of whether we should
be imputed to have what little knowledge Santa Cruz might have had about the
subject matter of the claim. We think IBM misses the point there, as well, Your
Honor. IBM cite no case for ite proposition and for purposes of rule 15 that
palintiff should have knowledge of its predecesor imputed to it. These are the
cases that IBM cites, cases in which the defense of laches had already barred
the predecessor's claims when the predecessor purported to assign the claims to
the successor. These cases make sense. If laches were to preclude the
predecessor's lawsuit, he should not be permitted to escape his untimeliness by
selling or giving his patent or other intellectual property rights to a
successor to then try to file a timly
lawsuit.
IBM
...SCO states that it cannot be
charged with the knowledge of Santa Cruz... That is wrong as a matter of law.
The case law is clear that SCO is charged with what Santa Cruz knew or should
have known. See e.g. Ory v. McDonald 68 USPQ 2d 1812, 1817 (C.D. Cal. 2003)
(stating that "a successor-in-interest is charged with the knowledge and
dilatory conduct of its predecessors" (internal quotation omitted)); Konstant
Prods. Inc. v. Frazier Indus. Co,. Inc., No.91-4491, 1993 U.S. Dist. LEXIS 7957,
at *47 (N.D. Ill. June 7,1993) (ruling that defendant was "charged with the
knowledge of [its predecessor-in-interest] and the consequences of his dilatory
conduct")(attached as exhibit B); MGA, Inc. v. Centri-Spray Corp., 639 F. Supp
1238, 1242 (E.D. Mich. 1986)(finding that successor-in-interest is charged with
"consequences of [predecesssor-in-interest's] knowledge and dilatory
conduct.")
I find SCO's argument inconsistent. In their view
if the hypothetical sale occurred a few days before the claim would have become
stale, the sale would, in effect, reset the clock. Not only that, but it would
actually prevent the reset clock from restarting. I can see splitting the
difference and employing a reasonable man test, or the like, but I don't see
Judge K. giving them a pass on this.
As IBM says, SCO's other point, that
the knowledge is a matter of fact and can't preclude the amended claim is
ridiculous.
--- 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 | # ]
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Authored by: Anonymous on Wednesday, May 18 2005 @ 09:46 PM EDT |
I was noticing, in Mr. Mariott's list of documents showing that oldSCO knew (or
should have known) about the SVR-4 code in AIX for Power, that a lot of the
places that explicitly said "SVR-4" were talking specifically about
the "SVR-4 printing subsystem".
This raises a question: How important is this printing subsystem in the overall
SVR-4 code? Is it a major part of the changes between SVR-3 and SVR-4, or is it
a small piece in with a lot of other changes?
(For that matter, what are the major changes from SVR-3 to SVR-4? Are there
other noteworthy things that were added or changed, which might show up in IBM's
press releases and advertisements from the time?)
Mr. Mariott did seem to imply that the printing subsystem was a large part of
SCOX's copyright-infringement list, so I'm wondering how big a part it is, and
what else is on that list.... That's all in documents that are still sealed,
though, right?
[ Reply to This | # ]
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Authored by: sk43 on Wednesday, May 18 2005 @ 10:46 PM EDT |
Or if he actually prepares. On p. 74, he states "I do not purport to have
personal knowledge about when the documents were produced, but it is my
understanding ..." Doh! This guy must be running from one case to the
next with no time in between; there is no other explanation for such a waffly
statement. Maybe this is the standard for the field, but it will not work
against Marriott in this case.[ Reply to This | # ]
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- Oops! - Authored by: sk43 on Wednesday, May 18 2005 @ 11:08 PM EDT
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Authored by: Anonymous on Wednesday, May 18 2005 @ 11:28 PM EDT |
Normand, page 75 lines 20 ff:
Now, with regard to another matter,
IBM spends a lot of time going through the documents, the documents that we
had not seen before, internal documents from Santa Cruz. [emphasis
added]
If Santa Cruz did not sell its interest in the
Monterey deal to Caldera, this is not a problem, but SCOG has problems aplenty
elsewhere.
If Santa Cruz sold its Monterey interests to Caldera, but
withheld the documents about the matter, then Caldera/SCOG doesn't really have a
cause of action against IBM in this. Their cause of action is against
Tarantella/Sun for some misbehavior in the sale.
If Santa Cruz sold
Monterey to Caldera, and delivered all the documents, where's the
beef?
If Santa Cruz sold Monterey to Caldera, and Caldera didn't care
enough about the documents to read, understand, and preserve them for possible
legal action, what's their complaint against IBM? SCOG's indiligence isn't
IBM's doing. --- --Bill P, not a lawyer. Question the answers,
especially if I give some. [ Reply to This | # ]
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Authored by: dmarker on Thursday, May 19 2005 @ 02:36 AM EDT |
SCO's motion to compel Palmisano deposition?
Denied without predjudice. Reason: Lack of evidence of any useful connection at
this juncture. A Palmisano delegate such as Wladasky-Berger can be deposed in
Palmisano's place.
2. SCO's motion to amend their complaint?
Denied!
3. The scheduling. Will there be a deadline before the close of fact discovery
to identify allegedly misused material?
I have no call on this.
Doug M[ Reply to This | # ]
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Authored by: tbogart on Thursday, May 19 2005 @ 02:58 AM EDT |
I did a quick scan down the comments so far, and I seem to be the only one to
blow a gasket right at page 4 - the opening statement by Eskovitz:
"... IBM took the shortcut of misapproriating SCO's intellectual property
in Unix and contributing Unix' eterprise strength strength features into
Linux."
Umm, right back to the zero evidence shown 'million lines of code' garbage,
nevermind about Monterey.
Maybe it is just the Gelnmorangie ....
<thump>[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 19 2005 @ 09:04 AM EDT |
I think that IBM are trying prevent the deposition of Sam Palmisano simply to
annoy TSCOG, after all the running round that IBM have had. It will also serve
as a big red herring for TSCOG. If IBM don't want him to talk then there must
be something big hiding in there. As a diversionary tactic there couldn't be
better. Expect TSCOG to waste an awful lot of time and money on getting
nothing.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, May 19 2005 @ 04:36 PM EDT |
A quick ASCII version with most of the original formatting preserved. [ Reply to This | # ]
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Authored by: GLJason on Thursday, May 19 2005 @ 08:21 PM EDT |
The thing that I cannot get by is that SCOX is trying to get way more money out
of their software than it's worth. What exactly was the purchase price that
Santa Cruz paid to Novell for the Unix Business? In SCOX's suit against Novell
they claim it was stock worth over $100 million at the time. What did
Caldera pay Santa Cruz for those rights? If we look at their 10-Q (do a search for 'Purchase price allocation' to find
the relevant section), it's about 5.8 million for the technology (plus $28
million for the distribution channel which they've run into the ground, and
$66 million for 'goodwill', which they have squandered).
Now we have a
quote from SCOX's lawyer in the transcript:
"... which is that
the corporate motive and intent of IBM in throwing its weight and billions of
dollars that have been publicly reported behind Linux is the reason why IBM
took the shortcuts that SCO claims it did and misappropriated SCO's code in
order to upgrade Linux as quickly as it could to make it
enterprise-hardened."
So SCOX bought the technology from
Santa Cruz for roughly $6 million and they are trying to say that IBM has
harmed them to the tune of $5 billion? If the technology really is worth
$5 billion, what did SCOX do in the 4 years since they bought it to make it
worth so much? [ Reply to This | # ]
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