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IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Friday, July 01 2005 @ 06:25 PM EDT

Here's the decision [PDF] we've been waiting for: IBM wins big and SCO's Motion For Leave to File Third Amended Complaint -- to add their phony baloney claim regarding the AIX on Power that SCO's journalistic minions told you would be so powerful and that they claimed they had just discovered -- was denied totally. The new trial date is February 26, 2007. To any who thought Groklaw was off base in digging up all that Project Monterey material, you owe me a dinner. No wonder SCO's been quiet as a tomb.

IBM also won on its motion to narrow the scope of its 9th Counterclaim, since that is part of why SCO's motion to amend was denied. SCO tried to expand its interpretation in order to justify their delay in bringing the claims about AIX. Judge Kimball writes:

To permit the proposed amendment would expand this already sizable and complex litigation and would serve only to delay its resolution. Furthermore, SCO has twice amended its Complaint during this litigation, and the deadline for seeking leave to further amend has long-since passed. SCO has not demonstrated the "extremely compelling circumstances" required by this court's June 10, 2004 Order. In addition, it has not demonstrated "good cause" under Rule 16(b) of the Federal Rules of Civil Procedure, and the court finds that SCO has unduly delayed seeking leave to assert the proposed cause of action. It appears that SCO -- or its predecessor -- either knew or should have known about the conduct at issue before it filed its original Complaint. Accordingly, the court declines to permit the filing of a Third Amended Complaint.

In short, nice try, SCO. I'm thinking we won't be hearing any more about those stupid IBM emails SCO leaked any more. This time, the tricks didn't work. Judge Kimball accepted essentially all of IBM's arguments.

Judge Kimball ruled on the other motions argued at the same April hearing, and SCO gets a puny four hours with Palmisano. Our eyewitnesses at the hearing said they thought SCO would get something on that motion, and they did. It's amazing to me how Groklaw's lay eyewitnesses get it so right, time after time.

On the scheduling, both parties have until December 22 to identify "with specificity all allegedly misused material." That would be SCO, of course, despite being listed as a deadline for the "parties." So, no open-ended "we'll tell you as we find it" or monthly "status meetings" at court about discovery, which is what they asked for. Remember this SCO suggestion?

Fourth, IBM seeks to use its proposed discovery schedule to trump the Federal Rules of Civil Procedure in an additional respect. IBM asks this Court to require SCO to identify, at interim and final deadlines, all "allegedly misused material" by "version, file, and line of code." IBM's Proposed Scheduling Order at 2 n.2; IBM Mem. at 5 & n.4. The discovery mechanisms provided in the Federal Rules of Civil Procedure, such as interrogatories, permit the parties to seek exactly the information that IBM now asks the Court to order SCO to disclose as part of the pretrial schedule. IBM has availed itself of these processes, and SCO will supplement its discovery responses as information becomes available upon its review of the discovery that IBM had refused to produce for over a year

Nope. They have to now do exactly what IBM asked for: identify on a fixed schedule with specificity exactly what they claim has been misused. This is part of what IBM suggested, for comparison:

Specifically, IBM proposes an interim deadline of June 11, 2005, by which the parties would identify the Allegedly Misused Material known to them as of that date, and a final deadline of August 11, 2005, by which the parties would identify any and all material that the other party is alleged to have misused. All fact discovery would close on August 11, 2005, except as to defenses to claims relating to the Allegedly Misused Material. The only fact discovery that would be permitted thereafter would be fact discovery relating to defenses to claims relating to the Allegedly Misused Material. No party could contend that another party misused material not identified by the August 11 deadline; no expert could opine as to the misuse of material not identified by the deadline.

SCO had best start looking for that needle in the haystack expeditiously. At last. They have to finally tell us what this saga has been about, if they can, with specificity.

[UPDATE: I started to think about the date for dispositive motions, and it occurs to me that I must be wrong on that, because there isn't normally any deadline for filing dispositive motions, no cutoff. You can usually do that any time you want, even after the trial starts. So I contacted Lewis Mettler of Lamlaw, after reading his excellent article on this Order, and I asked him about it. He thinks it means the first date that the parties can begin filing dispositive motions. It's listed in a long list of termination deadlines, so even he isn't positive, but he thinks, for the same reason I started to wonder, that it must mean the first date Judge Kimball will again entertain dispositive motions, so I have corrected the text.]
The deadline, not the opening of the gates, for dispositive motions (the ones IBM is drooling to file again, for example) is July 28, 2006, and trial is set for February 26, 2007. Fact discovery "except as to defenses to claims relating to allegedly misused material" is January 27, 2006, and the close of all discovery is March 17, 2006. So, a light at the end of the tunnel, finally.

This is a huge win for IBM. We have all been spared a lot more discovery nonsense, and its accompanying PR silliness.

And speaking of being spared, Judge Kimball asks that "the parties" not deluge the court with newly unsealed documents. That would be IBM. I haven't seen any from SCO yet. The instructions are to file a notice only if it's being unsealed. If redacted, then they file a notice and also file the redacted document.

Here's the Order as text, and my deepest thanks to Henrik Grouleff for stepping in and fixing my attempt at a table and redoing the HTML so it looks nice:

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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION


THE SCO GROUP, INC.,
Plaintiff/Counterclaim-
Defendant,
vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-
Plaintiff.


ORDER



Civil No. 2:03CV294 DAK



This matter is before the court on (1) Plaintiff The SCO Group, Inc.’s (“SCO”) Motion to Compel IBM to Produce Samuel J. Palmisano for Deposition, (2) SCO’s Motion for Leave to File Third Amended Complaint, and issues pertaining to the parties’ proposed Amended Scheduling Orders. A hearing on the motions was held on April 21, 2005. The court also heard brief argument on IBM’s Motion for Entry of Order Limiting Scope of IBM’s Ninth Counterclaim, which was not set for argument, but which is related to SCO’s Motion for Leave to File Third Amended Complaint. At the hearing, IBM was represented by David R. Marriott and Todd M. Shaughnessy. SCO was represented by Sean Eskovitz, Edward Normand, and Brent O. Hatch. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to the motions. The court has also considered the

1

letter dated April 25, 2005, sent to the court from SCO’s counsel and also the letter dated April 28, 2005, sent to the court from IBM’s counsel in response to SCO’s April 25, 2005 letter. Now being fully advised, the court renders the following Order.

I. SCO’S MOTION TO COMPEL IBM TO PRODUCE SAMUEL J. PALMISANO FOR DEPOSITION

SCO Seeks to Compel IBM to Produce its Chairman and Chief Executive Officer, Samuel J. Palmisano, for Deposition. IBM argues that SCO has failed to demonstrate that Mr. Palmisano has unique personal knowledge of the claims in the instant suit and that the information sought by SCO is available from other sources.

The court finds that Mr. Palmisano could have unique personal knowledge related to the claims in this action. Thus, IBM must produce Mr. Palmisano for a deposition. To minimize the disruption of IBM’s operations, SCO has agreed to depose Mr. Palmisano in New York. Although SCO seeks a seven-hour deposition, the court imposes a limit of four hours, not including any breaks taken during the deposition.

II. SCO’S MOTION TO FILE THIRD AMENDED COMPLAINT AND IBM’S MOTION TO LIMIT SCOPE OF NINTH COUNTERCLAIM

In its Ninth Counterclaim, IBM seeks declaratory judgment that “IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through the reproduction, improvement, and distribution of AIX and Dynix.” IBM, however, seeks to limit the scope of the Ninth Counterclaim, arguing that it intended to seek only a declaration that because IBM has not breached IBM’s license agreements with AT&T, and because SCO’s purported termination of those licenses is invalid, IBM’s continued distribution of AIX and

2

Dynix products does not infringe SCO’s alleged copyrights. In seeking a narrow interpretation of its Ninth Counterclaim, IBM contends, among other things, that the Ninth Counterclaim must be read in the context in which it was asserted. At that time, SCO had sued IBM for copyright infringement with respect to its continued distribution of AIX and Dynix, but it had not sued IBM for copyright infringement with respect to other non-Linux activities. IBM asserts that SCO had not even threatened to sue IBM for copyright infringement with respect to non-Linux activities other than IBM’s “post-termination” distribution of AIX and Dynix. Thus, IBM claims, it did not have a reasonable apprehension of being sued by SCO, thus there was not a case or controversy, and IBM could not have properly sued SCO for a declaration of noninfringement with respect to IBM’s non-Linux activities, other than the “post-termination” distribution of AIX and Dynix. Moreover, IBM argues that it should not be required to litigate a claim it did not intend to make, does not believe it asserted, and has no reason to pursue.

SCO, on the other hand, claims that IBM is attempting to recharacterize its Ninth Counterclaim now that SCO has found clear evidence that IBM infringed SCO’s copyrights. Based on this purported evidence, SCO seeks not only to defend against IBM’s Ninth Counterclaim, but to add a claim for affirmative relief. Specifically, SCO seeks to assert a cause of action for copyright infringement based on IBM’s alleged unauthorized use of copyrighted SCO code in IBM’s AIX for Power products.

The court will permit IBM to narrow the scope of its Ninth Counterclaim. In the context in which the Ninth Counterclaim was asserted, the court finds that IBM did not intend for the counterclaim to be interpreted as broadly as it has been interpreted. Having determined that the Ninth Counterclaim was not intended to sweep so broadly, SCO’s proposed amendment is no

3

longer the mirror-image of IBM’s Ninth Counterclaim. To permit the proposed amendment would expand this already sizable and complex litigation and would serve only to delay its resolution. Furthermore, SCO has twice amended its Complaint during this litigation, and the deadline for seeking leave to further amend has long-since passed. SCO has not demonstrated the “extremely compelling circumstances” required by this court’s June 10, 2004 Order. In addition, it has not demonstrated “good cause” under Rule 16(b) of the Federal Rules of Civil Procedure, and the court finds that SCO has unduly delayed seeking leave to assert the proposed cause of action. It appears that SCO–or its predecessor–either knew or should have known about the conduct at issue before it filed its original Complaint. Accordingly, the court declines to permit the filing of a Third Amended Complaint.

III. REVISED SCHEDULING ORDER

Having considered the parties’ proposed Amended Scheduling Orders and the briefing related to the proposed Orders, the court sets forth the following deadlines:

EVENT

DEADLINE

IBM’s Complete Production of
Discovery Pursuant to the
Order of April 20, 2005

August 1, 2005

Interim Deadline for Parties to
Disclose with Specificity All
Allegedly Misused Material
Identified to Date and to
Update Interrogatory
Responses Accordingly

October 28, 2005

Final Deadline for Parties to
Identify with Specificity All
Allegedly Misused Material

December 22, 2005

4

Close of All Fact Discovery
Except As to Defenses to
Claims Relating to Allegedly
Misused Material

January 27, 2006

Close of All Remaining
Discovery (i.e., Fact Discovery
As to Defenses to Any Claim
Relating to Allegedly Misused
Material)

March 17, 2006

Initial Expert Reports

April 14, 2006

Opposing Expert Reports

May 19, 2006

Rebuttal Expert Reports

June 16, 2006

Final Deadline for Expert
Discovery

July 10, 2006

Dispositive Motions

July 28, 2006

Oppositions to Dispositive
Motions

September 1, 2006

Reply Briefs on Dispositive
Motions

September 29, 2006

Rule 26(a)(3) Disclosures

January 12, 2007

Final Pretrial Order

January 19, 2007

Deadline for Exchanging
Proposed Jury Instructions1

January 22, 2007

Motions in Limine

January 26, 2007

Special Attorney Conference
and Settlement Conference

January 30, 2007

5

Oppositions to Motions in
Limine

February 5, 2007

Reply Briefs on Motions in
Limine

February 9, 2007

5-week Jury Trial

February 26, 2007



IV. UNSEALING OF DOCUMENTS

The parties have been in the process of unsealing various documents. To ease the burden on the Clerk’s Office, the court requests that the parties comply with the following procedure for all papers that are unsealed in the future.

If a party seeks to unseal an entire document, that party shall file only a Notice that sets forth the name and docket number of the document to be unsealed. The Clerk’s Office will then unseal that document. The parties shall not refile the entire document.

If, however, only parts of a document are to be unsealed (i.e., various exhibits from an appendix containing many exhibits), that party shall file a Notice indicating each specific paper to be unsealed, the docket number of the document containing the papers, and actual copies of each paper to be unsealed.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that (1) SCO’s Motion to Compel IBM to Produce Samuel J. Palmisano for Deposition is GRANTED; (2) SCO’s Motion for Leave to File Third Amended Complaint is DENIED, (3) International Business Machines Corp.’s (“IBM”) Motion for Entry of Order Limiting Scope of IBM’s Ninth Counterclaim is

6

GRANTED. IBM is directed to file a proposed Order that restates its Ninth Counterclaim.2 An Amended Scheduling Order is set forth above, as is a procedure to follow when unsealing documents that were previously filed under seal.

DATED this 1st day of July, 2005.



BY THE COURT:

______[signed]______
DALE A. KIMBALL
United States District Judge

7



1Approximately six weeks prior to trial, the court will send to the parties a Trial Order that sets forth deadlines regarding the exchange of jury instructions between the parties, filing of stipulated instructions and proposed instructions to which the parties could not agree, objections to proposed instructions, and responses to the objections. In the Trial Order, the court will also provide deadlines for filing proposed voir dire and proposed special verdict forms.

2IBM has previously submitted a proposed Order on this issue, but the language of the proposed Order is less than clear. Thus, the court directs IBM to file another proposed Order that clarifies the scope of the Ninth Counterclaim.


  


IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set | 417 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Authored by: Anonymous on Friday, July 01 2005 @ 07:01 PM EDT
good

[ Reply to This | # ]

Three Cheers for PJ
Authored by: fettler on Friday, July 01 2005 @ 07:02 PM EDT
Hip
Hip
Hip

[ Reply to This | # ]

Corrections go here
Authored by: pgarnett on Friday, July 01 2005 @ 07:06 PM EDT
Corrections go here

[ Reply to This | # ]

OT Here Please
Authored by: Leccy on Friday, July 01 2005 @ 07:09 PM EDT
Please Leave your off topic messages here...

Thanks

---
To err is human.
To really mess it up takes a software patent

[ Reply to This | # ]

IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Authored by: Steve Martin on Friday, July 01 2005 @ 07:10 PM EDT
Wow. What a way to usher in a weekend. Thanks, PJ!


---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"

[ Reply to This | # ]

I wonder how SCOG will spin this.
Authored by: rsteinmetz70112 on Friday, July 01 2005 @ 07:13 PM EDT
We will find out soon. Updates are due in the Autozone case.

The only way to avoid this is to send in a letter dated before the decision.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

A light at the end of the tunnel...
Authored by: Anonymous on Friday, July 01 2005 @ 07:14 PM EDT
... but it's still a long tunnel.

MSS

[ Reply to This | # ]

3 Years of discovery is a victory?
Authored by: Anonymous on Friday, July 01 2005 @ 07:15 PM EDT

My, my, we are grasping at straws. Well, I guess it's better than the
alternative. The minimum wage is better than no wage at all.

But we still need a reality check. Trials are still possible, even likely, for
both Novell and IBM. It's what SCO's always wanted -- a clueless jury. It's
still entirely possible SCO will win at trial without having to present any
evidence.

Here's a preview of the jury's deliberation in the Novell trial:

"Hey, the APA is okay with us. Where's the pizza?"

[ Reply to This | # ]

August 12 = Summary Judgement time?
Authored by: Anonymous on Friday, July 01 2005 @ 07:48 PM EDT
Well it looks like discovery finishes on August 11.

The only reason IBM didn't get summary judgement last time was because
"discovery hasn't finished".

I expect IBM to file for summary judgement August 12. And hopefully after a few
weeks the judge grants the motion.

RIP this ridiculous case and RIP SCO in September some time.

I will be disappointed if this is still dragging on in October.

[ Reply to This | # ]

Oops sorry bout comment above - change that to January 29 2006 :(
Authored by: Anonymous on Friday, July 01 2005 @ 07:54 PM EDT
Well it might be a good idea to read the PDF.

Looks like I have to wait until January 28 2006.

That sucks - more length delays until the summary judgement and SCO is buried.

If this isn't over March next year I will be severely disappointed.

[ Reply to This | # ]

This is a Pyric (sp?) for IBM
Authored by: Anonymous on Friday, July 01 2005 @ 08:11 PM EDT

I do not see this as a big IBM win. I think it is a little too late. As the saying goes "Justice delayed is justice denied." At no time should this farce of a suit been allowed to go beyond the issue of tSCOg not identifying any sort of code what-so-ever by the initially ordered dates Wells set forth in her own orders. (Note the plural there.)

This also isn't much of a victory seeing that IBM has had to produce all of the CMVC discovery that Wells ordered, which was based off of the claim for the two emails. But now that claim is no longer applicable, so why should IBM have to continue to produce that discovery?

Kimball as always presents clear, concise, and easily understood decisions; and especially seems to be able to grasp the underpinnings of the whole case. However, it is unfortunate that this case has been allowed to progress so far with nary any evidence ever produced on the alleged claims. Supported by his very own order in denying IBM's PSJ.

My prediction: tSCOg will find and be granted yet another way to delay the discovery further and get yet another postponement of the trail dates. They got it once, Kimball stated in that order it would not be changed without overwhelming need, and yet tSCOg have been granted anther date. It'll happen again.

[ Reply to This | # ]

so, what do you think:
Authored by: jig on Friday, July 01 2005 @ 08:24 PM EDT


appealed?

[ Reply to This | # ]

What if SCO refuses again?
Authored by: cmc on Friday, July 01 2005 @ 08:43 PM EDT
SCO has so far refused two separate orders to specify the allegedly
misappropriated material. With all due respect to the court, will this time be
any different? Assuming that things continue the way they are, and SCO still
doesn't find any UNIX code in Linux, what's the likelihood that Judge Kimball
will accept their lack of material as proof of no wrong-doing (or, more
accurately, that they found no proof of any wrong-doing)? I'm only questioning
it because they've been ordered twice so far to provide exactly the same thing,
and I just don't understand why they're getting a third time.

Also, I don't understand the timeline given. If I'm reading that correctly, SCO
has until January 27, 2006 to show the allegedly misappropriated code. But then
IBM only has less than two months for their own discovery to defend themselves
against any claims resulting from that? That seems way out of whack, that SCO
can get over two years of discovery to find the code, but then IBM has less than
two months to defend themselves. Am I missing something here?

cmc

[ Reply to This | # ]

Way Cool...
Authored by: digger53 on Friday, July 01 2005 @ 09:05 PM EDT
Tick, tick tick..., SCO. Tick, tick, tick.

---
When all else fails, follow directions.

[ Reply to This | # ]

Buy you dinner :-)
Authored by: senectus on Friday, July 01 2005 @ 09:44 PM EDT
You ever come to Perth western Australia, then buying you dinner is the least of
what I'll do.
A full night on the town enjoying the Western Australian lifestyle with myself
and my Partner, sounds like a fair thankyou for your great effort that is
Groklaw :-)

[ Reply to This | # ]

Deposition spin
Authored by: dkpatrick on Friday, July 01 2005 @ 09:49 PM EDT
No matter how much time SCO has to depose Mr. Palmisano, no matter if the
deposition is sealed, SCO will spin some tale about proof of IBM's culpability,
"straight from the top".

You can put money on it.

---
"Keep your friends close but your enemies closer!" -- Sun Tzu

[ Reply to This | # ]

Groklaw & IBM Win Big!
Authored by: rsi on Friday, July 01 2005 @ 09:58 PM EDT
"To any who thought Groklaw was off base in digging up all that Project Monterey material, you owe me a dinner."

If everyone who owes you a meal for all that you have done for this industry, paid off, you would never have to cook for the rest of your life. I would be happy to be the first person on that list!

CONGRATULATIONS! The war's not over, but there is now a light at the end of the tunnel!

[ Reply to This | # ]

OMG an actual DECISION!!
Authored by: Anonymous on Friday, July 01 2005 @ 10:04 PM EDT
**me faints**

Of course it won't shorten this whole ordeal much, will
it- it's going to end with SCO's bankruptcy and Darl and
his henchpeople skipping out of town with as much loot as
they can carry. It's not going to end in court, because
there is no end in court.

__
Carla the country geek

[ Reply to This | # ]

SCO got a small part of what they wanted in the schedule
Authored by: Anonymous on Friday, July 01 2005 @ 10:29 PM EDT
On the scheduling issue

1. IBM won the big substantive issue: Interim and final deadlines for
disclosing the allegedly infringing material

2. SCO won on the titles of the expert report phases (if you recall IBM wanted
the titles clarified, SCO did not).

3. SCO wanted a deadline for IBM to produce the CMVC production in the schedule.
There is one. However, it isn't the deadline that SCO wanted. SCO's proposed
deadline would have foreclosed IBM's motions for reconsideration and extra time.
IBM got both the reconsideration and the extra time. As a result on this
point, SCO won on the letter of their motion (a deadline is in the schedule),
but not on the substance (SCO's attempt to foreclose extra time and
reconsideration was not allowed).

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Letters dates 25 Apr 2005 and 28 Apr 2005.
Authored by: gnuadam on Friday, July 01 2005 @ 10:40 PM EDT
Apparently part of the record Judge Kimball considered included two letters.
One sent by SCO on 25 Apr 2005 to the court, and then a reply by IBM on 28 Apr
2005.

They don't appear to be listed on pacer ( or at least sco.tuxrocks.com version
of pacer), and I'm wondering if they were covered else where.

Could we get copies of them?

[ Reply to This | # ]

I like footnote 2
Authored by: Anonymous on Friday, July 01 2005 @ 11:03 PM EDT
"IBM has previously submitted a proposed Order on this issue, but the
language of the proposed Order is less than clear. Thus, the court directs IBM
to file another proposed Order that clarifies the scope of the Ninth
Counterclaim."


This sounds like Kimball saying, "hey IBM--make sure you make this
watertight so that SCO can't come back to me and whine about it later."

[ Reply to This | # ]

IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Authored by: urzumph on Friday, July 01 2005 @ 11:04 PM EDT
On the scheduling, both parties have until December 22 to identify "with specificity all allegedly misused material." That would be SCO, of course, despite being listed as a deadline for the "parties."

That's not quite fair. It is a deadline for both parties, it's just that only one party is not already fully compliant.

[ Reply to This | # ]

Court Room Cuisine
Authored by: producer on Friday, July 01 2005 @ 11:10 PM EDT
"To any who thought Groklaw was off base in digging up all that Project
Monterey material, you owe me a dinner."

And I think the first one should be in the Federal Court Building, in SLC. They
have this strange little restaurant, it seats about 20, in the basement. Food's
not great but it can be an interesting place.

[ Reply to This | # ]

Big Victory, indeed, BUT it is for SCO!
Authored by: Anonymous on Friday, July 01 2005 @ 11:14 PM EDT
Yes, sure they were not allowed to further extend their
claims, so the target remain $5 billion, they can't ask
any more...

However, SCO has been granted the Deposition they most
wanted. Now, they can grill Palmisano for 4 hours, and I
am sure they will manage to get some admission out of him
about ordering the IBM programmers to steal all the
precioussss Enterprise level UNIX IP from SCO's code and
dump it right into Linux. The Jury will be thrilled with
that so the case is is won - end of story! No need for
expensive and complicated code analysis. Jury wouldn't
understand that technical mambo-jumbo anyhow.

Another great victory is the timeline. Trial pushed back
all they way to 2007! Get it, 2007 ? Longhorn will be long
deployed before that time, while the threat still hangs
above Linux!

It is time to open the champagne in Lindon, Utah!

[ Reply to This | # ]

Woot! Woot!
Authored by: WhiteFang on Friday, July 01 2005 @ 11:27 PM EDT
Hey! And I _finally_ got my system straightened out so that I could actually log
in.

:-)

This Decision is a joy to read.

Thank you Judge Kimball.

And thank you PJ for making everything so clear and accessible for the rest of
us.

[ Reply to This | # ]

The "interim deadline"
Authored by: webster on Saturday, July 02 2005 @ 12:35 AM EDT

I had a friend in high school who ran track. He always won at the interim finish line. Unfortunately he did not have a good finishing kick and he was frequently overtaken at the final finish line.

This is oxymoronic. The judge does not devine what this means. It seems to me an interim deadline is not a deadline. What happens if SCO does not turn anything over at the interim deadline? Can they still turn it over at the final deadline? Can they file a Motion for Clarification of an Interim Deadline or will a call to the law clerk do? PJ, get on this.

---
webster

[ Reply to This | # ]

Good Evening, PJ, I Will Be Your Server Today!
Authored by: TheBlueSkyRanger on Saturday, July 02 2005 @ 12:52 AM EDT
Hey, PJ!

Owe you dinner, nothing. I'm not only quite the chef, but I'll gladly
genetically engineer some Perfectly Ordinary Beast if you so wish. It's the
least I can do. I can bake, broil, flambe, or napalm.

I'd ask what kind of wine you want, but you'll probably make the "We need
more discovery" joke before I do.

Dobre utka,
The Blue Sky Ranger

"You want it all, but you can't have it.
"It's in your face, but you can't grab it."
--Faith No More
"Epic"

[ Reply to This | # ]

The crush SCO quick plan - Could IBM do this?
Authored by: Anonymous on Saturday, July 02 2005 @ 01:22 AM EDT
The proper venue for any claims relating to Monterey appears to be New York

So the question is now the court in Utah has declined to hear the Monterey
issue

...could IBM do this - in **NEW YORK**

1. Sue SCO for a declarative judgement that the inclusion of SVR4 code in AIX
POWER does not infringe any SCO copyright

The controversy that powers the declarative judgement is backed by SCO's public
statements (e.g. in conference calls), SCO's attempt to litigate this issue in
Utah, etc.

2. Sue SCO for Lanham Act claims, relating to SCO's public statements (e.g. in
conference calls) that the inclusion of SVR4 code in AIX POWER infringes some
SCO copyright


It would seem to me that this would be a much more straightforward case than the
Utah case, and might be resolved more quickly, because

(A) It turns on the contractual interpretation which the judge can do (and as PJ
has previously noted there are many reasons why IBM is allowed to include SVR4
code in AIX POWER, include waiver/assent by SCO or SCO's predecessor,
contractual statute of limitations, and the plain text of the contract).

(B) The contract specifically waives the right to trial by jury

(C) A judge in New York, given a relatively straightforward case such as this,
might be amenable to early summary judgement motions, rather than waiting for
massive unnecessary discovery (in particular since the the inclusion of SVR4
code in AIX POWER is not disputed, all that is disputed is the contract and/or
whether SCO owns the relevant copyrights).


Advantages of this plan:

- Maureen could attend!

- It's local to Boies

- It's local to IBM

- It's not covered by SCO's $31m litigation cap

- If IBM win it quickly, it helps end this SCO nonsense sooner.



Thoughts anybody? webster? marbux? others?

Quatermass
IANAL IMHO

[ Reply to This | # ]

Like sex, it's OK if it takes a long time
Authored by: Anonymous on Saturday, July 02 2005 @ 01:25 AM EDT
This ridiculous farce is the best thing that ever happened to Linux. It has
increased the visibility and credibility of Open Source in general and Linux in
particular more than any amount of advertising ever could, at any price. The
longer it drags on, the better for Linux. And it's OK with me if SCO
experiences a long, slow, painful death, followed by the eventual imprisonment
of the perpetrators.

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IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Authored by: blacklight on Saturday, July 02 2005 @ 02:00 AM EDT
Once again, we have read judge Kinball correctly: judge Kimball tends to go for
the most rational, straightforward argument with the caveat that he is required
to give the plaintiff the benefit of every doubt.

What is not so pleasant is judge Kimball's new Scheduling Order, which pushes
litigation into 2007. In fact, I find his Scheduling Order not only unpleasant
but disrespectful not only of our time but of the defendant's time.

[ Reply to This | # ]

The big question is...
Authored by: rsmith on Saturday, July 02 2005 @ 02:14 AM EDT
Will SCO actually make it to the trial date?

They're still bleeding money. Last time I looked they'd run out of money
somewhere in 2006. So they have to economize even further or grow their business
(yeah, right).

---
Intellectual Property is an oxymoron.

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Microsoft Wins Big - Trial Date Set after Longhorn release date
Authored by: Walter Dnes on Saturday, July 02 2005 @ 02:42 AM EDT
Let's see..

Dispositive Motions July 28, 2006
Oppositions to Dispositive Motions September 1, 2006
Reply Briefs on Dispositive Motions September 29, 2006

*WITHOUT SCO GETTING AN EXTENSION*, SCO can hold off replies to any IBM motions
until September 1. IBM's lawyers will have to check their reply briefs
carefully, so you're talking the second half of September (make it the 29th
already) before IBM files them. Kimball seems to take his sweet time
considering the motions. The *SOONEST* you're likely to see a decision on a SJ
or PSJ motion is *MID-NOVEMBER of 2006*.

I was an OS/2 fanboi in my day. I wondered how MS' "Chicago" could
possibly catch up with the long headstart that the superior OS/2 had. MS
managed to freeze the market for 3rd-party OS/2 apps for 2 years, and soon after
Windows 95 was launched, there were more Win95 apps than OS/2 apps. The rest is
history.

Now that MS has wiped out most 3rd-party publishers except Oracle etal, they
control *THE* big apps, namely Windows Office. They're also trying to slow down
linux adoption by unneccesarily "buying a licence" from SCO to do what
Cygwin does for free. The "unix royalties" have kept SCO afloat so
far, and the lawsuit FUD as well.

[ Reply to This | # ]

Now what?
Authored by: fudisbad on Saturday, July 02 2005 @ 06:12 AM EDT
With the exception of SCOX's 2nd/3rd/4th Motion to Compel, there are no more
motions to keep us entertained until SCOX is forced to show their evidence just
before Halloween. The only things coming up for SCOX are the 3rd quarter
financials and SCOForum.

Once we clear our transcription backlog, how is SCO going to entertain us?
Another paperwork storm? (which seems very pointless)

---
See my bio for copyright details re: this post.
Darl McBride, show your evidence!

[ Reply to This | # ]

What about firmwares, hardware designs...
Authored by: Anonymous on Saturday, July 02 2005 @ 06:41 AM EDT
SCOX could argue that these are absolutely neccesary to identify
with specificity all of IBM's wrondoings. But, your honor, there's a
slight problem... This amounts to several billions of lines of code...
We need more time...

I'm sure that's what will happen...

Any thoughts about that?

[ Reply to This | # ]

Maybe a win for IBM but....
Authored by: NemesisNL on Saturday, July 02 2005 @ 08:45 AM EDT
How is another year of fud a win for us (linux/OSS)
They get until December 22, 2005 to produce code they haven't been able to show
for alll this time yet. What is Kimball thinking here. No summary judgements
untill even later than that....... SCO get's another year or so to spread fud
without being called on it....wich is what they want anyway. So I cant see this
as a win. In the novell case Kimbal seems to think the ownership of unix is not
clear and wants it decided there.....how can there even be a case against IBM if
ownership of the copyrights is in dispute?

I'm getting seriously confused and I must say I have lost the will to even try
and understand how the US legal system works. All I can see is a company that
basically has no case get's to hold IBM, and the OSS community, hostage for
years. That's not justice...that's maddness.

[ Reply to This | # ]

IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Authored by: Anonymous on Saturday, July 02 2005 @ 09:13 AM EDT
the court finds that SCO has unduly delayed.

I know it's out of context, but...

[ Reply to This | # ]

IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Authored by: vruz on Saturday, July 02 2005 @ 02:34 PM EDT
Well done PJ and fellow groklawers.

Apart from PJ's dinner, a fair reply from Orlowski would be nice too. (is
independent media allowed to do that ?)

Still, not happy at all with delaying this spectacle until 2007.







---
--- the vruz

[ Reply to This | # ]

And the winner is ...
Authored by: Anonymous on Saturday, July 02 2005 @ 07:01 PM EDT
Microsoft ...

This will definitely take at least another year -- until we get the preliminary judgement on Linux infringement (it can only be done after the discovery it's over). In the meanwhile, M$ can continue its FUD about Linux, and by the time everything's clear, they release Longhorn.

[ Reply to This | # ]

The legal system gets something right for a change
Authored by: Anonymous on Saturday, July 02 2005 @ 11:55 PM EDT
Well finally we have some firm dates (it seems).

Why has it taken 2 years to get this far!?

The trial schedule should have been organised at the start, not 2 years later!

Another example of the inept US legal system. Its designed simply to make
lawyers rich.



[ Reply to This | # ]

Jan 27 for the next motion to dismiss?
Authored by: darkonc on Sunday, July 03 2005 @ 12:26 AM EDT
January 27, 2006 is the closure of fact discovery other than IBM's defences... Depending on how you read the previous order limiting dispositive motions, that could be the earliest IBM could apply to dismiss the SCO accusations that they want to get rid of ... otherwise, we'd be looking at July, 2006 when all the experts' reports are in. In either case, we're looking at 6-12 months before IBM can move to squash SCO's case like a bug.

Given that the deadline for dispositive motions is July 28, 2006, I'm betting that IBM could fire it's first salvo in the earlier part of that timeframe.

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

[ Reply to This | # ]

Schedule of Dread: What's a SCO to do?
Authored by: webster on Sunday, July 03 2005 @ 01:27 AM EDT
SCO now has a chance to stew in their dreadful prospects for a few months and
confront all their terrible discovery options.

1. Nothing New: This is a real possibility. They may not have anything more
to disclose. Presumably they did not hold back in fighting the PSJ's. They
have also had two Orders to Compel. When discovery ends they face the same
PSJ's with a judge ready to act. They also need an expert and some code. They
won't get a match Kernighan, but they need an expert who knows the test and has
some experience testifying. They might not get one.

2. New Disclosures from old code: If they now disclose stuff that they could
and should have disclosed already, they set themselves up for sanctions and an
impossible credibility problem. Imagine paying IBM's legal bills through the
Discovery and motions process relating to this putative withheld code. Such
delayed disclosures will invite crippling sanctions from the Judges scorned.

3. New disclosures from the recently ordered discovery: Even if SCO finds some
smoking guns in this material it is of dubious relevance. It is material that
was not released or used by IBM. It will be very difficult to prove anything
with or about this code without facts and experts. It will be most difficult to
prove any damages by it since it just sat there idle until the SCO lawyers
finally got their wish for it. It will be easily countered and rebutted by the
IBM experts. Since they couldn't find anything in the released versions of this
code, they're fishing from a sinking ship in the dead sea.

Meanwhile IBM is sitting pretty. The $755 million from M$ will help. The trial
will be about their own claims, if it gets that far. The whole trial will be
about SCO motive which is earning those millions in license fees and pipe deals
from M$. It will be David v. Goliath and IBM won't be Goliath.

---
webster

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Parties Is Correct
Authored by: BassSinger on Sunday, July 03 2005 @ 02:26 AM EDT
Use of the plural in "parties" is correct. IBM has counterclaimed
that SCO is misusing some of their code in the SCO Linux release, since they
have violated the GPL by sueing over Linux. They also must specify by the same
deadline which code in the SCO Linux release blongs to IBM.

At least, that is how I understand it.

---
In Harmony's Way and In A Chord,

Tom ;-})

Proud Member of the Kitsap Chordsmen
Registered Linux User # 154358

[ Reply to This | # ]

IBM Wins Big - SCO Motion to Amend Complaint Denied; Trial Date Set
Authored by: Anonymous on Tuesday, July 05 2005 @ 05:01 PM EDT
I strongly respect the US legal system (common law), but I would like to say that the Continental legal system (roman-germanic) would never permit such a thing as a "complaint ammendment". In this system, when a plaintiff puts out a law suit, he's obliged to write down every thing that he asks against the defendant, and he has to show very early what evidences he has to support his allegations. So, when the defendant get to know the suit, he can know exactly the extention of the plaintiff´s complanint and he can know exactly what is the lawsuit scope. This "complaint ammendment", and "long term discoveries" system seems to serve perfectly to help SCO in its objective to spread FUD.

[ Reply to This | # ]

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