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Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
Wednesday, June 28 2006 @ 05:52 PM EDT

Feast your eyes on this, my friends! Judge Brooke Wells' Order Granting in Part IBM's Motion to Limit SCO's Claims [PDF]. Finally, SCO's refusal to offer specificity has cost them, as it should. There is almost nothing left in the case as far as the challenged items are concerned. Items in dispute were numbers 3-112, 143-149, 165-182, 186-193, 232-271, and 279-293 on SCO's list of allegedly misused materials. That list was sealed, naturally, SCO being SCO, but those are the numbers the judge lists. Footnote 65 (!) further clarifies:
Initially, IBM sought to limit 201 of the 294 items identified by SCO in its Final Disclosures. After further clarification by SCO, SCO's abandonment of one of the items (No. 294), and IBM's acknowledgment that it initially improperly included item no. 2, 198 items remain in dispute.

What's left in the case from the items in dispute? Only item numbers 23 (about "negative know how" regarding EES, an "error event subsystem" in Dynix/PTX), 43 ("learning from TCP failures to help networking and storage for Linux", if you can believe anything so ridiculous), 90 ("avoiding a logging event that caused problems in PTX), 94 and 186-192 (about Dynix again). That's it. That's all the case is about now as far as the challenged items go. Regarding Linux, all that is left is someone figured out how to learn "from TCP failures to help networking and storage in Linux"? My eyeballs are bugging out. What an absolute farce. One thing is certain. There will be no billions of dollars in damages, even if SCO could prevail on these puny items. There are, of course, other items still in the case from the list that IBM didn't challenge, and those will be dealt with, IBM has already stated, in summary judgment motions, so I don't mean to suggest the case is over. But it just got a whole lot smaller. None of the items are in or out based on the merits, by the way. This is a sanction against SCO for failure to show the code. The Linux community has been asking SCO from day one to show the code it claims is infringing. It wouldn't, other than the SCOForum debacle. We all thought it would do it in a courtroom. With regard to the items that just hit the trash can, it wouldn't even do it there. And now, it has been sanctioned.

She granted the motion, in large part, because SCO's failure to provide specificity on the numerous items now no longer part of this litigation "was willful":

The sanction IBM seeks -- precluding SCO from using certain alleged misappropriated items because of a lack of specificity -- is very serious. As outlined in greater detail below, the court finds that SCO has failed in part to meet the level of specificity rrequired by this court's orders and the order entered by Judge Kimball. It is also apparent that SCO in some instances failed to meet the level of specificity it required of IBM. Further, this failure was willful under case law and prejudicial to IBM. Therefore, the court GRANTS IBM's Motion to Limit SCO's Claims Relating to Allegedly Misused Material in Part.

She writes: "Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'its in there somewhere, you figure it out.'"

Ah! Finally! Somebody noticed that SCO has stubbornly refused to show the code from day one. And now it has cost it dearly.

More quotable quotes, to tide you over until the full transcript is done:

As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public.

Examples...many examples. It's clear Judge Wells has read them all. She knows all about SCOForum and the code display. She knows about the MIT deep divers who then disappeared. She tells the whole story, and then she tells the story of the history of the case.

Under Rule 37(c), a court, she points out, may enter sanctions for failing to disclose required information, if the party lacks "substantial justification" for failing to disclose required information, and that sanction is the party will not be permitted to use as evidence at a trial, or a a hearing, or in any motion "any witness or information not so disclosed."

SCO tried to argue that IBM would have to show bad faith. Wells disagrees. "Willfulness is sufficient." Then she educates SCO on the nature of the motion. "IBM's motion is not essentially about the merits of SCO's case but about 'whether SCO complied with IBM's discovery requests and the Court's orders.'" Then under the wonderfully titled header, "Methods and Concepts and Specificity," she writes:

A large portion of SCO's alleged misappropriated items are methods and concepts. "Of the 294 Items in the December Sumission, about a third are cases of misused code, and about two-thirds are cases of misused methods and concepts." [Quotes both experts, Davis and Rochkind.] After considering the expert declarations and the parties' memoranda, the court finds that methods and concepts are at least on some basic level comprised of source code. The court agrees with mr. Rochkind, SCO's expert, that methods and concepts can be discussed without disclosing source code. But it is possible, and even preferable in many instances, to provide the code behind methods and concepts. In fact, Mr. Rochkind's own publication Advance Unix Programming (2d ed. 2004), provides many examples of code when discussing "fundamental concepts."

Closely related to the methods and concepts question is in this court's view the heart of the dispute -- what level of specificity is required by the court's orders? If the court's orders required the production of specific source code for alleged misappropriated items, including methods and concepts, then many of SCO's arguments and much of Mr. Rochkind's declaration miss the mark. If however, the level of specificity did not require source code then IBM has fired a wayward shot off the starboard bow in its attempt to sink SCO's ship.

IBM argues that SCO has failed to identify the allegedly misused material "with the most basic detail." Although the court only specifically said "lines" in its orders, IBM argues that it was also necessary to provide the version and file information for SCO's alleged misappropriate items. Otherwise, IBM is left to undertake a "massive analysis, potentially of every single version, file and line of Unix System V code, ... AIX and Dynix, and ... Linux."...

In direct contrast to IBM's argument, SCO argues that it has met the level of specificity required by the court's orders. Indeed, SCO states it has provided "over 450,000 lines of source code and hundreds of confidential methods and concepts."...

Finally, SCO alleges IBM's complaints about specificity are unwarranted because of the "roadblocks IBM has placed along the way to hinder SCO [in] identifying the particular misused material." For example, SCO says IBM resisted providing the CMVC and RCS systems which contain AIX and Dynix materials along with other information. In May 2005, the information was produced pursuant to court order but "IBM has been unable to produce all versions of its AIX source code, claiming that they cannot be located."

In considering the parties' positions the court first looks to the language in SCO's own requests and the language of the court's orders.

[Provides quotations from SCO interrogatory requests and court orders telling SCO what to provide.] Based on the language off the orders, and SCO's own requests, the court finds that SCO was to provide source code, i.e. version, file and line information, for its alleged misappropriated items. Although the court did not specifically say version and file in its orders, the court finds that this information was inherent within the court's ordering of "specific lines." The court agrees with IBM's argument that line information without version and file information is not very specific and makes identification of what is at issue much more difficult.

This court further finds that Judge Kimball intended the same level of specificity in his Julyl 2005 order which provided what amounted to a date certain for the parties to define their case. Judge Kimball's order was entered after this court's orders which dealt with specificity. And Judge Kimball did not provide a different definition of specificity in his order. Further, in an earlier decision, Judge Kimball in esssence rebuked SCO for a lack of specificity. "Nevertheless, despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgement. . . " Given this background this court believes that Judge Kimball intended the same level of specificity as this court did, to wit, version, file, and line information for misappropriated items.

Most important to the court however, is the fact that SCO itself sought this level of specificity by asking for "identification of the specific lines and portions of code" for all alleged "trade secrets or confidential or proprietary information, whether computer code, methods or otherwise." Given SCXO's track record in this case, the court is certain that if IBM had simply provided line information without version and file information for "methods," SCO would have filed motions to compel complaining about IBM's lack of specificity. The court cannot find any reason why SCO should not be held to the same level of accountability that SCO held IBM to. Thus, SCO should have supplied not only line but version and file information for whatever claims form the basis of SCO's case against IBM.

In further support of this court's finding that version, file, and lilne information was the required level of specificity the court points to the testimony of SCO's own Chief Technology Officer, Sandeep Gupta. Sandeep Gupta testified about the importance of having version, file and line information in respect to methods and concepts.

Q: Okay, How would you determine whether a particular description was specific enough to describe an aspect of System V as a method?
A: I have to look at the source code.
Q: Okay. What would you do if you looked at the source code?
A: I look at various steps that are taken, specific for that particular method."
Q: Okay. So in order to determine what a particular method or concept is, you would actually have to look at the source code?
A: In some cases, yes.
Q: . . . would you have to look at the source code to be able to accurately describe a method or concept in UNIX?
A: That's my opinion, yes.

Finally, the court notes that the deposit requirements for copyright registration also support this court's decision....

Based on the foregoing the court finds that methods and concepts can be identified in source code and that under the court's orders SCO was required to provide the source code behind them.

SCO approved the orders as to form. SCO also never sought further clarification of the court's orders. And in fact, from the start of this case SCO has repeatedly sought source code on the grounds that it was necessary to substantiate its case. On more than one occasion SCO has argued that it could not respond to IBM's requests without further production from IBM. Thus, it really shoujld come as no surprise to SCO that they were required to produce version, file, and line information to substantiate their claims.

III. Willfulness

A willful failure has been defined as "any intentional failure as distinquished from involuntary noncompliance. No wrongful intent need be shown." In contrast, "The courts that have concluded that the failure to comply with a discovery order was not willful have emphasized the inability of the eparty to comply with the order."

There is no evidence before the court to indicate that SCO lacked the ability to comply with the court's orders. In fact, given SCO's own public statements outlilned in part supra, it would appear that SCO had more than enough evidence to comply with the court's orders.

In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concetps formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their methods and conceptws in the final submission pursuant to this original order entered in December 2003 ane Judge Kimball's order entered in July 2005.

OK. *Now* you're happy, huh?

: )


  


Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part. | 554 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic
Authored by: pfusco on Wednesday, June 28 2006 @ 05:59 PM EDT
clikkity clack please

---
only the soul matters in the end

[ Reply to This | # ]

WHACK!!!
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:00 PM EDT
Wells has seriously redeemed all her previous slack. She covers every little
detail in this one.

[ Reply to This | # ]

Kerrectuns
Authored by: pfusco on Wednesday, June 28 2006 @ 06:01 PM EDT
Hukkd on fonicx werkd fer me

---
only the soul matters in the end

[ Reply to This | # ]

Oh, ye of little faith
Authored by: overshoot on Wednesday, June 28 2006 @ 06:07 PM EDT
Specifically for pfusco, who doubted advance notice. Happy now?

Although, come to think of it, it applies rather well to the rest of us in our more cynical statements about the Court. I vote we all apologize for any unkind thoughts that may have troubled Her Honor's dreams.

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: red floyd on Wednesday, June 28 2006 @ 06:07 PM EDT
This is a devastating order.
  • SCO has "willfully" failed to comply
  • She lambastes them for beating on the "good faith"
  • She uses their own interrogatories against them
  • She hammers their "newly renewed all new motion to recompel" behavior.

It also fairly screams out, "don't bother appealing this, you'll lose."

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United States of America.

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:08 PM EDT
I'm just reading the order now. The language seems
decidedly "non-judgelike" to me. I'm wondering if this
may be a red herring.

(Specifically thinking of the "If however, the level of
specificity did not require specific source code then IBM
has fired a wayward shot off the starboard bow in its
attempt to sink SCO s ship." from page 22.)

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: entre on Wednesday, June 28 2006 @ 06:08 PM EDT
Life is Finally Good, Nothing else here...

[ Reply to This | # ]

It was worth the wait
Authored by: red floyd on Wednesday, June 28 2006 @ 06:09 PM EDT
As the target of the "get some sleep" jibe, I say this. Go ahead and
sleep regularly anyways. We can wait, especially when its worth it like this!

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

  • Sleep - Authored by: mwexler on Wednesday, June 28 2006 @ 09:31 PM EDT
"inexcusable"
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:15 PM EDT
"Given the amount of code that SCO has received in discovery the court
finds it inexcusable that SCO is in essence still not placing all the details on
the table."

The judge has made it clear that she understands the case, and is sick and tired
of SCO's games-playing. The dismisal on the grounds of vagueness also has clear
ramifications for the so-called expert reports, and the folks at BSF should be
plenty nervous about the next ruling. Bliss :)

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:16 PM EDT
The judge in this document outlines the "story to date", and seen in this form you can track how she came up with the decision. I quite like this bit at the start of Section I: SCO's Public Statements.
As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public.
Look at the definition of Siren Song. And this was written by the judge.

[ Reply to This | # ]

I heard the rumour
Authored by: Alan(UK) on Wednesday, June 28 2006 @ 06:17 PM EDT
Now I know it is true I can go to bed (11:17pm here).

[ Reply to This | # ]

Huge sigh of relief
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:21 PM EDT
We already knew Judges Wells and Kimball were on to SCO and upset about it. My
concern was whether Magistrate Judge Wells would be able to find legal
justification for the huge step of ditching the only SCO claims with a decent
chance of surviving summary judgment motions. Well, we have the answer: a
resounding "YES!" In fact, the claims left are some of the easiest to
refute, for instance, the negative know-how items.

[ Reply to This | # ]

Wells' greatest hits.
Authored by: Jaywalk on Wednesday, June 28 2006 @ 06:22 PM EDT
Here are my favorite bits from the ruling. Doesn't look like she's pulling any punches on this one:
... the court finds that SCO has failed in the part to meet the level of specificity required by this court's orders and the order entered by Judge Kimball. It is also apparent that SCO in some instances failed to meet the level of specificity it required of IBM. Further, this failure was willful under case law and prejudicial to IBM.
And she goes on at some length about what she means by "willful" too. Apparently she's a bit miffed that -- with every scrap of AIX, Dynix, Linux and SCO UNIX available to them -- SCO couldn't do a better job of identifying code. So I guess IBM coughing up a fully configure MVCS machine was worth it.

Nor did it help that SCO was simultaneously demanding source code themselves.

After reviewing the record, the court has not found any evidence that SCO abandoned the level of specificity it required from IBM in its first set of interrogatories, to wit, "identification of the specific lines and portions of code" . . .>
If IBM could come up with all that code, why couldn't SCO?

And it looks like the repeated re-renewed reiterations of the motions to compel bit them too:

Given SCO's track record in this case, the court is certain that if IBM had simply provided line information without version and file information for "methods," SCO would have filed motions to compel complaining about IBM's lack of specificity.
She goes on like that for a long time and -- somewhere around page thirty -- reaches the conclusion that SCO really did need to provide source code.
Based on the forgoing, the court finds that methods and concepts can be identified in source code and that under the court's orders SCO was required to provide the source code behind them.
Remember when Wells got peeved with SCO for expanding her orders by claiming they weren't clear, but not asking for clarification? Looks like they did it again.
IBM warned SCO that if the final submissions were of the same level of specificity court intervention would be sought. Tellingly, SCO did not seek court guidance as to the required level of specificity after IBM disagreed with SCO's interpretation of the court's orders.
But my all time favorite is this one. It's the kind of stuff I expect to see in Groklaw or the other discussion forums, but it's way cool to hear a judge say it.
The court finds SCO's arguments unpersuasive. SCO's arguments are akin to SCO telling IBM sorry we are not going to tell you what you did wrong because you already know. ... Given the amount of code that SCO has received in discovery, the court finds it inexcusable that SCO is in essence still not placing all the details on the table. Ceritainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole.
That's my list. Feel free to make your own; there's a lot of fun reading in this one.

The bit that survived included three bits where SCO theorized "negative know how" (i.e., they learned from UNIX not to do it this way). The judge called the theory "quite a tenuous position" but, since it explained them not having source code, she left those bits in. She also left in some parts which really aren't about copying code. They go to the theory that somebody who worked on AIX is contractually forbidden from contributing to Linux. But that's it. The bulk of what IBM wanted out is gone.

It's been a good day.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

Summary of Ruling
Authored by: ChasF on Wednesday, June 28 2006 @ 06:23 PM EDT

"IBM seeks to limit items numbers 3-112, 143-149, 165-182, 186-193, 232-271, 279-293."

Here are the ones left:

  • 23
  • 43
  • 90
  • 94
  • 186
  • 187
  • 188
  • 189
  • 190
  • 191
  • 192

[ Reply to This | # ]

Negative know-how?
Authored by: Kaemaril on Wednesday, June 28 2006 @ 06:31 PM EDT

What exactly constitutes 'negative know how'?

It sounds like 'They must have done it via method X because they knew method Y, which is in Unix, doesn't work very well. Gasp! They've infringed on our method by ... not using our method!'

[ Reply to This | # ]

So I guess it is time to buy SCOX stock
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:35 PM EDT
Because it invariably seems to go up on bad news.

[ Reply to This | # ]

Hoist by their own petard!
Authored by: Rudisaurus on Wednesday, June 28 2006 @ 06:37 PM EDT
There is no evidence before the court to indicate that SCO lacked the ability to comply with the court’s orders. In fact, given SCO’s own public statements outlined in part supra, it would appear that SCO had more than enough evidence to comply with the court’s orders.

Boom!

[ Reply to This | # ]

BAM!
Authored by: KBellve on Wednesday, June 28 2006 @ 06:43 PM EDT


What a nice read. It is clear she spent time on this and she knew all the
details.

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: Steve Martin on Wednesday, June 28 2006 @ 06:46 PM EDT

Oh, wow... after reading this, words simply fail me.

Oh, waitaminnit... here's one:

*** SMACK!! ***

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

[ Reply to This | # ]

Willfulness versus Bad Faith
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:46 PM EDT
Would anyone with formal legal training like to outline exactly what these two
terms imply. I had the feeling that the distinction was crucial in allowing
Magistrate Judge Wells to substantially grant IBM's motion.

[ Reply to This | # ]

Rope
Authored by: Tufty on Wednesday, June 28 2006 @ 06:50 PM EDT
Many people have complained about the amount of rope that TSCOG has been given.
The court has hitched it to the rail. Now for reeling it in.

IANAL so I don't get much pleasure out of reading legal documents but I have
very much enjoyed this one. What comes next is going to get even more
interesting. So far the court has given an appearance of patient listening. Here
we see that still waters run deep and someone has done a lot of reading.



---
There has to be a rabbit down this rabbit hole somewhere!
Now I want its hide.

[ Reply to This | # ]

  • Rope - Authored by: JThelen on Thursday, June 29 2006 @ 04:00 AM EDT
  • Rope - Authored by: Anonymous on Thursday, June 29 2006 @ 07:29 AM EDT
Typo in original + killer underline
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:52 PM EDT
Typo: page 8: "SCO's trademark claims" - I think that it's pretty
apparent, Wells meant "SCO's trade secret claims"

Killer underlining: Page 11: "After reviewing the progress of the case upto
that point, the court lifted the discovery stay in the light of "SCO's good
faith efforts to comply with the discovery order"". --- "upto
that point" being underlined, to emphasize the finding of "SCO's good
faith efforts" doesn't necessarily apply to SCO's subsequent actions,
despite SCO's protestations to the contrary.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Wow! I didn't expect this
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:56 PM EDT
This is just awesome!

[ Reply to This | # ]

Granted in part, but what a large part!
Authored by: Arnold.the.Frog on Wednesday, June 28 2006 @ 06:56 PM EDT

177 items down at a stroke! This is indeed very good. After tSCOg complained that Randall Davis wandered off into opining about "wilfulness", Wells sticks a pointed boot in by echoing precisely what Randall Davis quoted on the subject. She also produces her own octavo version of Kimball's Lament, that tSCOg had so amazingly failed to back up its large claims, not only claims against IBM but claims to have evidence, with actual production.

Davis claimed that NONE of the items on tSCOg's list actually complied with the orders for specificity. The decision to move against only 188 of them at this point was an interesting judgment call. By the look of things, IBM and its legal team made very judicious decisions on what to move to strike in the motion. Only getting 11 items out of 188 denied is extremely good going, particularly when the relief being asked was (as Wells says) so hard on tSCOg.

We'll have to see whether IBM is equally successful in moving for PSJs. A different judge, and different rules.

[ Reply to This | # ]

*poof*
Authored by: Anonymous on Wednesday, June 28 2006 @ 06:57 PM EDT
2/3 of SCO's case has gone up in smoke. Can't wait for summary judgements.

[ Reply to This | # ]

Accordingly, the court finds...
Authored by: Latesigner on Wednesday, June 28 2006 @ 07:00 PM EDT
I gloat.
Every weasel word, every slippery trick, every delaying obfuscation now comes
back and bites them.
Wells really did give them enough rope to hang themselves.

---
The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

Just a bit to much rope
Authored by: pauljhamm on Wednesday, June 28 2006 @ 07:00 PM EDT
Now we can all understand why the court has been so accommodating to SCO. The
more rope that you reel out the easier it is to hang them from their own petard.
Delicious!

Have a great one

Just another PJ

[ Reply to This | # ]

Judge Wells has probably been dreaming about this opportunity for months (or years!)
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:01 PM EDT
There's been a lot of criticism of Wells for not slapping SCO down sooner.

But what's generally been ignored is that she's limited (in a practical sense)
to ruling on motions raised by either party.

I believe, though I may be wrong, that she could legally have decided at any
point to unilaterally slap SCO down for their antics. But that would be an open
invitation for SCO to come up with some garbage accusation of "bias"
on appeal.

And Wells, Kimball, IBM and World+dog know that they'll jump on any such chance
to run their scam for another couple of years.

So she's had to wait until the time was right and proper for IBM to start to
administer the richly-deserved kicking themselves [sorry, present this motion
for the court to rule on].

Now we, and SCO, are on notice that she hasn't just been sitting around
twiddling her thumbs in the meantime!

[ Reply to This | # ]

  • I agree entirely - Authored by: Anonymous on Thursday, June 29 2006 @ 04:59 AM EDT
Probable Error in Wells Grants in Part IBM's Motion to Limit SCO's Claims
Authored by: Falcon on Wednesday, June 28 2006 @ 07:03 PM EDT
Good Evening All,

I think the Judge has made a mistake in the order. On page 32 is the sentence:

"Based on the foregoing, the court finds that SCO has had
ample opportunity to articulate, identify and substantiate its claims against
SCO."

I think she meant: Based on the foregoing, the court finds that SCO has had
ample opportunity to articulate, identify and substantiate its claims against
IBM.

1) Am I correct that an error exists here?
2) If I am correct, how serious is this?

Bernie AKA Falcon

[ Reply to This | # ]

Now its Kimball's turn
Authored by: argee on Wednesday, June 28 2006 @ 07:04 PM EDT
Unless there is a total disconnect between the two judges
(and the Magistrate and District Judges work hand in hand),
we can surmise that the other IBM motion will also be
granted.

IBM has asked that no new material other than that disclosed
in December be used. It does not ask for specific parts of
the expert declarations be tossed, only sets up the stage
for it.

In order to be consistent with Well's order, it seems obvious that IBM's motion
would also be granted. Otherwise
SCO can simply introduce by expert testimony that which
Wells just threw out.

Kimball couldn't really rule without Well's going first,
so there is the first punch of the one-two.


---
--
argee

[ Reply to This | # ]

There is so much great stuff in here..
Authored by: SirFozzie on Wednesday, June 28 2006 @ 07:04 PM EDT
Some gems (line breaks added in some places to make it readable)

Page 32

"Based on the foregoing, the court finds that SCO has had ample opportunity
to articulate, identify and substantiate its claims against SCO (Sic, should be
IBM).. The court further finds that such failure was intentional and therefore
willfull based on SCO's disregard of the court's orders and failure to seek
clarification.

In the view of the court it is almost like SCO sought to hide it's case until
the ninth inning in hopes of gaining an unfair advantage despite being
repeatedly told to put "all evidence... on the table.

Accordingly, the court finds that SCO willfully failed to comply with the
court's orders."

Page 33-34

"The court finds SCO's arguments unpersuasive. SCO's arguments are akin to
SCO telling IBM sorry we are not going to tell you what you did wrong because
you already know. SCO received substantial code from IBM pursuant to the court's
orders as mentioned supr. Further, SCO was required to disclose in detail what
it feels IBM misappropriated. Given the amount of code that SCO has received in
discovery the court finds it inexcusable that SCO is in essence still notplacing
all the details on the table.

Certainly if an individual was stopped and accused of shoplifting after walking
out of Neiman Marcus they would expect to be eventually told what they allegedly
stole. It would be absurd for an officer to tell the accused that "you know
what you stole I'm not telling" Or, to simply hand the accused individual a
catalog of Neiman Marcus' entire inventory and say "its in there somewhere,
you figure it out."

Ladies and gentlemen, a lot of folks have said unknind things about the Judges
in this case. including myself. How would we like our crow cooked?

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:08 PM EDT
This is ART! It severely limits what SCO can actually take to trial. I
particularly enjoyed how SCO's initial trumpeting has been brought back against
them, and the judgement that their actions, or lack of, are wilfull.

The rope that SCO have been given has finally been put around their neck.

Expect a big drop in share price.

[ Reply to This | # ]

"That's Some GOOD Smackdown!" -- B.T. Bruno, "Cel Damage"
Authored by: TheBlueSkyRanger on Wednesday, June 28 2006 @ 07:10 PM EDT
Hey, everybody!

It's a hap hap happy day!

Listen to the silence, and somewhere inside, you will hear corks popping in the
vicinity of Armonk.

I think it's safe to say that this is the watershed we've all been waiting for.
SCO has gotten chance after chance, and gambled that pulling the same stuff
would work here. The last hearing, where the judge told them about
reinterpretting her orders and not seeking clarification, should have signaled
SCO that they had hit the PNR.

This can only be the beginning. They are now limited to certain things, and
they have to sing and dance like crazy.

From now on, I'm reading Groklaw with a tub of popcorn. Oh, and I guess I can
stop playing that CD of "There's Got To Be A Morning After."

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 | # ]

PJ, go to sleep again!
Authored by: PolR on Wednesday, June 28 2006 @ 07:20 PM EDT
<blockquote>
See what happens when you tell me to get some sleep?
</blockuote>
Yes and I love it. I suspect we now know why this case takes so long. Sleep more
often! Obviously twice per year is not enough.

[ Reply to This | # ]

  • Score - Authored by: red floyd on Wednesday, June 28 2006 @ 07:38 PM EDT
The stricken items are pretty much irrelevant at this point
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:22 PM EDT
The surrounding commentary is a clear follow-on from "Is that all you've
got?".

Subtext: "It's all you're getting anyway. You lose. Now, how badly and
painfully do you want to lose?".

[ Reply to This | # ]

  • The cluestick - Authored by: Anonymous on Wednesday, June 28 2006 @ 11:03 PM EDT
I'm surprised!
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:23 PM EDT
I'm suprised at the style and tone of this document. I've
been totally exasperated at how slow things have moved, how
patient the judges have been, giving SCO chance after chance,
after chance. By reading between the lines, we've been
able to tell that the Judges were losing their patience a bit (e.g. Judge
Kimball with his: "is that all you've got?").

And then this. I was expecting this result but not the tone. Judge Wells
could have been very clinical in the wording. This reads like she ran out of
patience.

After 3 years it's about time!!! Finally!!!!

One thing is clear: they can't play games with this judge anymore.

[ Reply to This | # ]

Today is a good day for Evil Glee!
Authored by: Cassandra on Wednesday, June 28 2006 @ 07:23 PM EDT
To everyone who has ever doubted Judge Wells, please go and write out one hundred times in your bestest handwriting:

Judge Wells Rules OK!

[ Reply to This | # ]

Wow.
Authored by: mobrien_12 on Wednesday, June 28 2006 @ 07:24 PM EDT
Well, you know, this is really good. I was getting worried because it had been
over a month since this garbage happened.

The judges made their decision a long time ago. They communicated it with
crystal clarity. At the last minute SCO/BSF told them they were wrong.
Everyone knew it was completely inappropriate. Everyone knew it was a bogus
claim. Everyone knew SCOG needs to argue on specifics (and WE all know they
won't be able to). But to be quite honest, I thought the judges would cave once
again in what has been a giant joke of a trial (that was still being fought over
what it would be about).



[ Reply to This | # ]

Sleep
Authored by: jplatt39 on Wednesday, June 28 2006 @ 07:25 PM EDT
I know you just said that you're reading the transcript to prepare a fuller
report for us lazybones, but sleep is obviously a goodness if this is what
happens when you take a few hours off.

You do whatever it takes to properly enjoy that Red Dress (whose day is not yet,
but will clearly be here soon).

[ Reply to This | # ]

BSF/SCO response?
Authored by: jbb on Wednesday, June 28 2006 @ 07:29 PM EDT
For years some of us had predicted that the courtroom shenanigans of BSF/SCO were partly designed to so peeve the judges as to get them to over-react and thus give BSF/SCO a redo by claiming that the judges were prejudiced against them.

Judge Wells had many harsh words for SCO in this ruling. Do any of the legal eagles here know if this is going to give SCO a shot at successfully complaining about the judges?

---
Anyone who has the power to make you believe absurdities has the power to make you commit injustices.

[ Reply to This | # ]

It's my birthday....
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:29 PM EDT

... and SCOG can cry if it wants to.....

*grin* Thanks! Couldn't ask for a more enjoyable gift... well.... I could, but there's so few gifts that can give so much sudden joy.

RAS

[ Reply to This | # ]

Es Ist Vorbei
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:36 PM EDT
If I had any SCO shares I'd be on the phone to my broker, going "sell,
sell, sell", and it wouldn't do me any good because by the time the markets
open there will be all sellers and no buyers. I expect the share price will drop
radically as this kicks in.

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: kurtwall on Wednesday, June 28 2006 @ 07:37 PM EDT

WOOT! What we see here is a magistrate who precisely understands SCO's nature:

Given SCO's track record in this case, the court is certain that if IBM had simply provided line information without version and file information for “methods,” SCO would have filed motions to compel complaining about IBM's lack of specificity.
Indeed!

[ Reply to This | # ]

What's left in the case
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:41 PM EDT
(Seeing as there's no corrections thread)

PJ writes:

What's left in the case? Only item numbers 23 (about "negative know how" regarding EES, an "error event subsystem" in Dynix/PTX), 43 ("learning from TCP failures to help networking and storage for Linux"), 90 ("avoiding a logging event that caused problems in PTX), 94 and 186-192 (about Dynix again). That's it. That's all the case is about now.
This may be an exaggeration. There are also 90-something items that weren't challenged in the current motion.

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:48 PM EDT
Long time lurker of Groklaw. (Will a 12 step program be available to help me kick the addiction to Groklaw when this is over?)
Simply amazing.
First legal document that I can understand. Not so good for SCO.
gcb

[ Reply to This | # ]

Love it!
Authored by: Anonymous on Wednesday, June 28 2006 @ 07:51 PM EDT
And how do we KNOW that methods and concepts still require source code?

BECAUSE SANDEEP GUPTA SAID SO!!!

Hee hee, that's what expert opinion gets you!

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims!
Authored by: szakvok on Wednesday, June 28 2006 @ 07:51 PM EDT
Wow, very good news! And let me take this opportunity to
thank you PJ for the great reporting on this case since
its beginning in 2003 march - I have been reading every
day since than (although I have not really written
comments until know)!

Denes

[ Reply to This | # ]

Judicial Cramming - Gag on that! Eating One's Words with Crow on the Side
Authored by: webster on Wednesday, June 28 2006 @ 07:53 PM EDT
.
-1. Yet to read PJ's article. This is a personal risk, SCOish even.

0. Thirty-nine pages. Did she get leave to file an overlength order?
"Granting in Part." I wonder if SCO got left with a part they really
wanted. Let's see.

1. It is simple, well-written, authoritative, powerful, with devastating
factual arguments. She repeatedly uses SCO words and actions against them. She
lines up with Kimball. It is a decision difficult to assail.

2. She lists some of SCO's specific claims and their demands for specificity
from IBM. This is quite devastating. She is VERY familiar with the record.
McBride and Sonntag's words have come back to haunt them. The millions of lines
and the MIT deep divers are all referenced by her. She spends over 17 pages on
the discovery history including the Motion to Strike. She lived it and reviewed
it.

3. She discusses specificity: what IBM defined and demanded, what SCO defined
and demanded, what Kimball ordered. She knows the record. In a most
devastating fashion to SCO she quotes Kimball rebuking SCO for its lack of
specificity, the "...vast disparity between SCO's public accusations and
its actual evidence-or complete lack thereof..." p. 27. Then there is her
line "Given SCO's track record in this case." They demanded the same
specificity from IBM. Then she uses SCO's own Sandeep Gupta's words on the
necessity of file, line, and version against them. And this is for methods and
concepts. She also notes that lines are needed for copyright registration. A
strong argument. p. 29.

4. Willfulness: She discusses how noncompliance arises from intentional
failure or inability. Wrongful intent is not required for willfulness. Then
she crams some more SCO words down their throat: "given SCO’s own public
statements outlined in part supra, it would appear that SCO had more than enough
evidence to comply with the court’s orders. p. 31. She notes IBM gave them
another chance. SCO never asked for clarification. She also uses a
"ninth-inning" baseball analogy which seals her conclusion of
willfulness. p. 32.

5. Prejudice: Look at her argument about code on page 34. She really
understands how IBM is prejudiced without specific code. She finds prejudice
based on the delay and burden to IBM at this late stage.

6. The Specifics: She denied striking some "negative know how"
claims. Even in doing that she made sure to disparage the possible merits of
any claim. She also reminded SCO that they had to specify their misappropriated
items. p. 36. The rest of the specifics are best left to the coders and
attorneys up to snuff.

7. The Risk of an appeal to Kimball. SCO can appeal to Kimball immediately if
they really want something that has been excluded. Why bother? Why risk it?
Kimball is in no way more sympathetic than Wells. They probably have to
"go through the motions" lest they be attacked by their client for not
doing so. IBM will oppose and cross-appeal. Do they really want to give IBM
another crack at the rest? If IBM doesn't cross appeal, presume they consider
what remains "sitting-duck" material. SCO runs the risk of losing the
rest of what IBM moved to strike. SCO may also gain a little. This decision
takes on presumptive power. It is not going to be disturbed without finding a
severe abuse of discretion by the court. It's not there to be found. It will
sound reasonable to Kimball. Why do all that work when Wells already did. She
did a good job.

[8. A good exercise would be to go back and see which of her arguments were
made by IBM in Motion and Reply. The decision would be that much more
impressive if many of her arguments were original. The Q-Mass team could do
this in a few seconds.]


---
webster

[ Reply to This | # ]

Wells Grants Almost All of IBM's Motion to Limit SCO's Claims!
Authored by: Dave23 on Wednesday, June 28 2006 @ 07:57 PM EDT
After scanning through the PDF text of Judge Wells' decision, I have a number early comments to make:
  1. I read Judge Wells' decision with great delight. Seeing that Discovery in this case is nearly at its end (barring a rising creek) this likely will be near the end of the series of decisions she's had to make in SCO v. IBM. Within the constraints of her position as Magistrate Judge, issues of equity and fairness were foremost in her mind, and it showed. She seemed to cover every argument thoroughly, and explained her decisions in admirable detail. Was the good judge reading my earlier commentary here on Groklaw on what the basic arguments and issues were in this motion? Or do great minds just think alike? ;-) Justice was not only done here, it was seen to be done.
  2. Judge Wells gives us some additional tidbits about some of the remaining claims in the text, even though the full claims themselves were filed under seal. It would be good to update the SCO Claim Table with this latest intelligence.
  3. The (less than a dozen?) SCO claims that were contested in this motion that remain did so because they were deemed specific enough. Issues of contractual chattelry and negative knowledge will have to be dealt with at Summary Judgement time, even though they are highly questionable for a number of reasons. (Wells labeled the negative knowledge argument as "tenuous".)
  4. Wells was careful, and treated the claims in question separately or in small groups. That's why she took a long time, I think. This decision will almost certainly be supported by Judge Kimball.

All in all, the text of her decision is not a bad piece of work. Not bad at all.

---
Nonlawyer Gawker

[ Reply to This | # ]

The Fat Lady...
Authored by: Anonymous on Wednesday, June 28 2006 @ 08:02 PM EDT
hasn't begun singing yet. But I do see her warming up on the on-deck circle.
:)

<Baseball metaphor for those of you who don't follow the sport>

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
Authored by: Anonymous on Wednesday, June 28 2006 @ 08:05 PM EDT
The beginning of this order contains a pretty good summary of the case so far. I suggest copying the whole Background section from the order into the Case Summary area.

[ Reply to This | # ]

"specific lines"
Authored by: gfim on Wednesday, June 28 2006 @ 08:23 PM EDT
Although the court did not specifically say version and file in its orders, the court finds that this information was inherent within the court's ordering of "specific lines." The court agrees with IBM's argument that line information without version and file information is not very specific and makes identification of what is at issue much more difficult.
I haven't gone back to the original order to check but, if it really said "specific lines", then that is not the same a "specific line numbers". IBM (and hence Judge Wells) could have avoided the whole problem by pointing this out. If SCO just provided line numbers, IBM could say "we want lines i.e. the actual text of the line". That would make it much easier to identify regardless of file and version. Although file, version, and line is even better!

---
Graham

[ Reply to This | # ]

  • "specific lines" - Authored by: Anonymous on Wednesday, June 28 2006 @ 09:59 PM EDT
SCO would have been well served to have read this paragraph in an article about Judge Wells
Authored by: jws on Wednesday, June 28 2006 @ 08:24 PM EDT
utahb ar.org link

"She also applauds lawyers for their civil conduct in her courtroom. There is, however, one area that has surprised her. “On the limited number of civil matters that I have had hearings on, I have been astounded at the sheer volume of paper which, when reduced to its principal elements, is much less in terms of what really is relevant to the topic.” Her advice, particularly to civil litigators, is to “cut to the chase” in motion practice. For lessons on trial practice, look to the criminal bar"

In a case I was an expert witness on, we got about 4 cases of half inch tapes (2400') and several cases of printouts from the other party in a civil matter. I don't think that much of it ended up being useful, as Judge Wells points out here.

Also, the "cut to the chase" is the best advice missed by SCO here, if this turns out to stick.

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
Authored by: grahamt on Wednesday, June 28 2006 @ 08:27 PM EDT
Ah! Finally! Somebody noticed that SCO has stubbornly refused to show the code from day one. And now it has cost it dearly.

No. They were asking for the Sun, are now restricted to asking for the Moon, but were never entitled to ask for anything. It hasn't cost them anything.

And they have gained years of delay, and an environment of FUD that has yielded millions of dollars of sales for their masters.

[ Reply to This | # ]

Colloquialisms
Authored by: IMANAL on Wednesday, June 28 2006 @ 08:33 PM EDT
Even as a non-native English speaker I am struck by her effective use of colloquialisms where needed to emphasize how silly SCO has been at times. Down to earth when in place. Just one of a half a dozen examples:

"Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that “you know what you stole I’m not telling.” Or, to simply hand the accused individual a catalog of Neiman Marcus’ entire inventory and say “its in there somewhere, you figure it out.”"

The precision is there. :)



---
--------------------------
IM Absolutely Not A Lawyer

[ Reply to This | # ]

Can't wait to see how Boise Schiller reply to this!
Authored by: Anonymous on Wednesday, June 28 2006 @ 08:35 PM EDT
IANAL but I read this as "Your case is toast, you are toast, your evidence
is a pop-tart. And as for your client, well ... they're toast,
extra-crispy!"

[ Reply to This | # ]

Oh man, I've been waiting a looong time for this!
Authored by: Anonymous on Wednesday, June 28 2006 @ 08:35 PM EDT
Okay, my favorite part may be that next up is TSG's expert testemony claims with their ". . . and, oh yeah, the rest of Linux infringes too" insinuations.

Heh heh heh. Man I hope IBM stays the course, I mean, I think this case needs to be taken to the bitter end (by that of course I mean the counter claims, because SCO's case? clearly going nowhere). There needs to be no ambiguity about Linux's legal status or the fate of those who would exploit the lack of familiarity with it's novel methods of development in order to threaten other with costly litigation.

I have maintained for years that SCO should end up as a sidebar in a business school text-book as a case study in what not to do.

[ Reply to This | # ]

Wells Grants in Part : SCO spin?
Authored by: merodach on Wednesday, June 28 2006 @ 08:37 PM EDT
"We're pleased with the ruling by Judge Wells. This allows us to more
narrowly focus our case on those topics which are core.

We will be vigorously pursuing these remaining claims and.... "

I'm sorry - someone else will have to continue this. I'm laughing like Harvey
Coreman after Tim Conway just perfectly and seriously delivered the riotously
funny punch line to the joke.

[ Reply to This | # ]

Forbs???
Authored by: Jamis on Wednesday, June 28 2006 @ 08:38 PM EDT
I wonder what Daniel Lyons thinks of this? Remember his "What SCO Wants,
SCO Gets" article from three years ago?

[ Reply to This | # ]

Counterclaim 10
Authored by: Anonymous on Wednesday, June 28 2006 @ 08:42 PM EDT
If I understand correctly, counterclaim 10 is that Linux contains no code owned
by SCO or even unix code in general. Are we in a position now where a summary
judgement on counterclaim 10 is almost automatic?

"173. IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201
that IBM does not infringe, induce the infringement of, or contribute to the
infringement of any SCO copyright through its Linux activities, including its
use, reproduction and improvement of Linux, and that some or all of SCO' s
purported copyrights in UNIX are invalid and unenforceable."

[ Reply to This | # ]

  • Counterclaim 10 - Authored by: Anonymous on Wednesday, June 28 2006 @ 09:02 PM EDT
  • Second counterclaim - Authored by: Anonymous on Wednesday, June 28 2006 @ 09:05 PM EDT
    • Still... - Authored by: Anonymous on Wednesday, June 28 2006 @ 09:11 PM EDT
  • No way of knowing - Authored by: Anonymous on Wednesday, June 28 2006 @ 09:08 PM EDT
Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
Authored by: blacklight on Wednesday, June 28 2006 @ 08:43 PM EDT
"She knows about the MIT deep divers who then disappeared." PJ

I'll speculate:

(1) They drowned like rats in their last dive
(2) They are at the bottom of the Hudson, after having been outfitted with
cement shoes
(3) They never existed, except in Darl the Snarl's hallucegenic visions which he
was kind enough to share with us Groklaw yokels and Groklaw miscreants




---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
Authored by: blacklight on Wednesday, June 28 2006 @ 08:54 PM EDT
SCOG's whiny magnum opus "They did me wrong" finally got the editorial
review that said opus deserved: a thorough slash and burn job from the much put
upon judge Welles herself. It was long overdue.


---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

Quote "ibm is prohibited from having former Dynix/ptx developers write source
Authored by: thorpie on Wednesday, June 28 2006 @ 09:00 PM EDT

When discussing items 94 & 186 to 192, which she left standing, Magistrate Wells provides a direct quote of "Under SCO's interpretation of the contracts at issue, IBM is prohibited from having former Dynix/ptx developers write source code for Linux".

A search for "ibm is prohibited from having former" fails to find any matches on Groklaw. So a couple of questions:

  • Is this the first we have heard of this? ;
  • Does anyone know where the quote comes from? (It is likely within the redacted portions of their memorandum);
  • Do we have any idea what items 94 & 186 to 192 are?
  • ---
    The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

    [ Reply to This | # ]

    OK. *Now* you're happy, huh?
    Authored by: Anonymous on Wednesday, June 28 2006 @ 09:06 PM EDT
    In short, no I am not happy.

    Yes, I am very happy for this ruling in this situation, and I love seeing SCO
    get trounced like this, but.....

    What I *REALLY* wanted to see was SCO to move forward in December with a list of
    thousands of claims against IBM and Linux, each one backed up with hundreds of
    lines of source code (with file, line and version information).

    Then I wanted this to go to trial.

    Then I wanted to see a jury and judge rule in IBM's favor.

    That is the *ONLY* way that Linux can put all this FUD behind it.

    I think it is a foregone conclusion that IBM will prevail if anything survives
    until trial, and it will win many a summary judgement.

    **BUT** there will still be the cloud hanging over all this that is SCOG saying
    "IBM got away with something".

    [ Reply to This | # ]

    Enderle and O'Gara
    Authored by: Slimbo on Wednesday, June 28 2006 @ 09:28 PM EDT
    I can hardly wait to see Rob Enderle's, Maureen O'Gara's and all those
    analyst/journalyst who saw the evidence take on this.

    Should be some interesting fiction.

    Randy

    [ Reply to This | # ]

    Did all that discovery backfire?
    Authored by: Jude on Wednesday, June 28 2006 @ 09:54 PM EDT
    SCO whined incessantly about how needed AIX and Dynix source cose - ALL of it -
    in discovery, but thier final list of allegedly abused material supposedly cited
    only 697 lines of code. I wonder if this contributed to Wells' decision.

    I would think that the methods and concepts items could have been detailed much
    earlier. If SCO really DID need all that AIX and Dynix source to find these
    items, they should have had no problem identifying the relevant code. The
    conclusion I reach is that SCO either:

    1) Planned all along to claim the methods and concepts items, but deliberately
    delayed revealing them until the last possible moment, or

    2) Did find the methods and concepts in the AIX and Dynix code, and thus should
    have had no problem identifying the code with the required specificity.

    Either way, it looks like SCO was trying to avoid obeying the court's orders.

    [ Reply to This | # ]

    Conversion Order...
    Authored by: Anonymous on Wednesday, June 28 2006 @ 09:58 PM EDT
    "Mountains of code" to "tiny ant hill of code".

    [ Reply to This | # ]

    A beautiful, beautiful document.
    Authored by: WhiteFang on Wednesday, June 28 2006 @ 09:59 PM EDT
    A few misplace commas. A few constructs which could be a little smoother and one
    outright typo.

    It's minor blemishes merely reinforce it's beauty.

    I've already printed a copy and read the hard copy twice.

    Thank you Judge Magistrate Wells!
    Thank you very, very much.

    ---
    DRM - Degrading, Repulsive, Meanspirited
    'Nuff Said

    [ Reply to This | # ]

    She really gets it ... BSD!
    Authored by: iksrazal on Wednesday, June 28 2006 @ 10:16 PM EDT
    "Or, it may be possible that the code comprising a method or concept was
    already disclosed pursuant to some other license such as the BSD License. Since
    Linux uses some BSD code this could have a substantial impact upon SCO's case.
    Especially since SCO claims to be a successor in interest to some of the
    technology involved in the dispute between Unix System Laboratories and The
    University of California"

    I'm mostly a lurker and often thought that this court never really has decided
    anything important up until now. However, reading the PDF has suprised me a
    great deal!

    In short, I thought alot that PJ's effort was preaching to the choir. Not so at
    all! I understand from a laymans standpoint everything that Well's is saying due
    to reading groklaw for 3 years, and to this I give a small thanks ;-) .

    iksrazal

    [ Reply to This | # ]

    A gripping read! A real page turner! You won't believe your eyes!
    Authored by: mr.mighty on Wednesday, June 28 2006 @ 10:20 PM EDT
    This was incredible. I've taken the last three hours to savour reading it and
    the hundreds of comments.

    Judge Wells makes it very clear that she understands the case, knows the
    history, and after giving SCO every opportunity to make its case, made the right
    decision.

    I laughed! I cried! It was beautiful.

    [ Reply to This | # ]

    Have we seen all 326 lines of Linux?
    Authored by: dcf on Wednesday, June 28 2006 @ 10:24 PM EDT

    In describing the Cargill report in IBM's Reply Memo in Support of Motion to Confine/Strike SCO's Claims, IBM mentions that SCO's Final Disclosures identify only 326 lines in total in the Linux kernel. SCO has previously shown examples of what it claimed were lines improperly copied into Linux. Has anyone gone back and counted the lines they've previously cited to see if we've now seen all the Linux kernel lines in the Final Disclosures?

    Of course, this exercise would be a bit error-prone, because many of the previous examples have been shown to come from BSD or elsewhere, so it is possible that SCO decided not to include them in the Final Disclosures. On the other hand, they are still harping on JFS, ELF, etc.

    [ Reply to This | # ]

    Can IBM get damages?
    Authored by: Anonymous on Wednesday, June 28 2006 @ 10:30 PM EDT
    Based on this this ruling, can IBM get damages or reembersement for legal costs
    related to all the items that are part of the sanction, due to the judge calling
    SCO's actions willful?

    Not asking if IBM will, just asking if they can.

    [ Reply to This | # ]

    Wells Foreshadows Next Move?
    Authored by: om1er on Wednesday, June 28 2006 @ 10:49 PM EDT
    Judge Wells says:

    "This court further finds that Judge Kimball intended the same level of
    specificity in his July 2005 order which provided what amounted to a date
    certain for the parties to define their case."

    Does this signal that SCO will NOT be allowed to continue adding new charges at
    any time, now that the "date certain" has passed?

    Will Judge Wells grant IBM's latest motion to limit SCO's expert reports, where
    claims in excess of those from Dec 22, 2005 were added?


    ---
    Are we there yet?

    [ Reply to This | # ]

    Legal question - for marbux, webster, et al
    Authored by: Anonymous on Wednesday, June 28 2006 @ 11:14 PM EDT
    Okay 200 odd items are eliminated from this case as being too vague.

    But Wells goes out of her way to say that she isn't ruling on the merits of
    these items.

    So question: Can SCO try to reintroduce these 200 odd items, into the other
    cases, when the other cases (AutoZone, RedHat, Novell) eventually come back to
    life?

    Quatermass
    IANAL IMHO etc

    [ Reply to This | # ]

    How truly bad is this for SCOX?
    Authored by: Anonymous on Wednesday, June 28 2006 @ 11:40 PM EDT
    Well, I guess we will just have to watch the stock price tomorrow. It ended
    today at $4.17, if it shoots up to $20.00, then we will know how bad this really
    is....

    [ Reply to This | # ]

    Timing not a coincidence?
    Authored by: mwexler on Wednesday, June 28 2006 @ 11:44 PM EDT
    I noticed that this came out right after IBM turned in their rebuttal on the
    contest expert witness testimony. Might the judge have been waiting for that. If
    this ruling came out a few days ago, I bet IBM would have been awfully tempted
    to refer to it in their rebuttal, but perhaps that is unfair because SCO had no
    access to it when doing their reply.

    [ Reply to This | # ]

    Lack of similar motions by SCO
    Authored by: mwexler on Wednesday, June 28 2006 @ 11:47 PM EDT
    IBM has contested both SCO's list of misused materials and their expert witness
    reports. SCO doesn't appear to be even attempting to do the same with IBMs
    materials.
    Yes, I know, IBM doesn't make the same kinds of mistakes, but when has that
    stopped SCO before?
    Is this more evidence of SCO's (BSF's) growing frugality on legal costs?

    [ Reply to This | # ]

    Appeals
    Authored by: mwexler on Wednesday, June 28 2006 @ 11:51 PM EDT
    There has been lots of talk of SCO appealing the results of this trial. If they
    do, won't they have to post an appellate bond in the amount of any money's
    awarded to IBM?
    Lets say IBM gets awarded $100,000,000 for their counterclaims. Won't SCO have
    to do a $100,000,000 appellate bond? If so, how would they fund it? PIPE fairy?
    I guess they could appeal the findings on the claims but not the counter claims,
    but if, as everybody seems to expect, the counterclaim awards are large enough
    to bankrupt SCO, will there be enough left of SCO to fight the findings on the
    claims?
    Or will the big bankruptcy court in the sky have to decide such issues?

    [ Reply to This | # ]

    The court has reviewed...
    Authored by: stend on Thursday, June 29 2006 @ 12:49 AM EDT
    3SCO submitted its alleged misappropriated materials on CD-ROM. The court has reviewed all of the disputed items individually.
    In other words, "Don't try running to Judge Kimball and claiming that I did not review all if the items.".

    ---
    Please see bio for disclaimer.

    [ Reply to This | # ]

    Negative Know How
    Authored by: Zarkov on Thursday, June 29 2006 @ 12:54 AM EDT
    "...dont try to make the wheels square, its been tried before and doesnt
    work..." "Doh!"

    [ Reply to This | # ]

    Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
    Authored by: jig on Thursday, June 29 2006 @ 01:02 AM EDT
    BAM!

    (sorry to be so succinct)

    [ Reply to This | # ]

    Appeals?
    Authored by: Anonymous on Thursday, June 29 2006 @ 02:11 AM EDT
    I'm wondering if we'll actually see any appeals. Everyone expects appeals in any
    long court case, but if SCO ultimately loses and then appeals, I don't think it
    will matter. The gig will be up before the appeals are done.

    Especially if all the judgements read like this!

    Also, does their contract with the lawyers cover appeals?

    [ Reply to This | # ]

    OK. *Now* you're happy, huh?
    Authored by: elronxenu on Thursday, June 29 2006 @ 02:56 AM EDT
    You bet. There's only one thing to say at a time like this:

    "And, has
    thou slain the Jabberwock?
    Come to my arms, my beamish boy!
    O frabjous day!
    Callooh! Callay!'
    He chortled in his joy."
    

    [ Reply to This | # ]

    That was a breath-taking body blow to SCO
    Authored by: Anonymous on Thursday, June 29 2006 @ 03:40 AM EDT
    Judge Wells did a very thorough job.
    It will be impossible for SCO to prevail on appeal.
    SCO is being nailed to the wall. Over 180 nails were just shot from the
    nailgun.
    Fantastic.
    We are finally moving forward on this case.
    I am waiting for the hearing on IBM's motion to strike parts of SCO's expert
    witness reports.
    IBM is again going to nail SCO for not following Judge Kimball's and Judge
    Well's
    orders on discovery.
    Hee hee hee.
    This is fun.

    [ Reply to This | # ]

    My worry
    Authored by: cybervegan on Thursday, June 29 2006 @ 04:44 AM EDT
    ... is that SCO will now begin crowing about these issues never having been
    tested in court - that they were thrown out without discussion (not "on the
    merits"?).

    Will they try to use this action to feed their "IBM's dirty tricks"
    storyline?

    For sure, they'll spin it somehow - we all know this case isn't about "the
    case"; it's about smearing Linux, casting doubt on it.

    All that said, they got what they deserved. They never had a case - it was
    always a tower of cards, and most of it just got blown down. Now all they've got
    left are a few 2's and 3's - and maybe the jokers.

    It's not Red Dress Day yet, but maybe time to check out a few dry-cleaners in
    preparation. I just hope that this won't become one of those sad sequels where
    the bad guy keeps coming back, despite having been "definitely killed"
    every time...

    -cybervegan

    ---
    Software source code is a bit like underwear - you only want to show it off in
    public if it's clean and tidy. Refusal could be due to embarrassment or shame...

    [ Reply to This | # ]

    Wells' Shoplifting Analogy
    Authored by: DaveJakeman on Thursday, June 29 2006 @ 07:22 AM EDT
    "Certainly if an individual was stopped and accused of shoplifting after
    walking out of Neiman Marcus, they would expect to be eventually told what they
    allegedly stole. It would be absurd for an officer to tell the accused that 'you
    know what you stole I'm not telling.' Or, to simply hand the accused individual
    a catalog of Neiman Marcus' entire inventory and say 'its in there somewhere,
    you figure it out.'"

    I love this analogy and it beautifully illustrates what SCO has been trying to
    get away with. To spoil this analogy slightly, but make it ring closer to the
    truth, it could go something like this:

    ...Or, to simply tell the accused it is listed in one of the catalogs that
    Neiman Marcus has issued to date, or one of the back-catalogs of a number of
    related or unrelated stores, without giving the accused the aforementioned
    catalog, letting the accused know which catalog to look for, or indicating where
    said catalogs may be located....

    Haven't read the PDF yet, but oh, this makes me happy :)

    ---
    Shampoo for my real friends, real poo for my sham friends - not Francis Bacon
    ---
    Should one hear an accusation, try it out on the accuser.

    [ Reply to This | # ]

    After the case
    Authored by: jlnance on Thursday, June 29 2006 @ 08:56 AM EDT
    I've got a legal question. Had SCO been allowed to proceed and then lost these
    motions, the questions would have been settled. SCO would not be able to raise
    them again in another case.

    Is this the case now? Since these questions were not litigated, can SCO sue
    someone else for these same things?

    [ Reply to This | # ]

    So what did they REALLY do with all that code IBM Supplied?
    Authored by: Debonair on Thursday, June 29 2006 @ 10:14 AM EDT
    So just how much of the mountains of code, to borrom a term from SCOX, (Gee, I
    hope they don't sue me for using their hyperbole.) that IBM delivered to them
    was actually looked at, analyzed, or examined in any way? I am no expert, but I
    suspect 99.99% of it was never examined in any way. I can't see how they could
    have examined any sizeable portion of it without a massive number of bodies
    being involved. They only demanded all the code to annoy IBM, with no real
    intent of using it. I imagine this is a typical tactic in litigation.
    Any speculation for someone more informed than myself?

    [ Reply to This | # ]

    Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
    Authored by: Anonymous on Thursday, June 29 2006 @ 11:54 AM EDT
    For the final humiliation,
    1.)Novell proves beyond a shadow of doubt they own the Unix code and that SCOG
    owes them $$$$$$$$$ royalties as a distributor
    2.)Red Hat wins $$$$$$$$$$$ from SCOG for defamation
    3.)SCOG declares chapter 7, the vultures pick over the debris
    4.)Darl, et al., investigated and indicted by SEC, FTC and FBI and drag several
    key employees of Sun and Microsoft with them; all go to jail, more broke than
    Bowery bum wino.
    5.)Boies quietly works for Bill and Melinda Gates Foundation, doing nothing but
    GOOD works instead of making money out of other peoples' misery.

    [ Reply to This | # ]

    Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
    Authored by: Anonymous on Thursday, June 29 2006 @ 12:56 PM EDT
    I think it will not be long before IBM, **SCO's successor in interest**, will be
    dismissing the cases against Novell, and Auto Zone. :-)

    [ Reply to This | # ]

    Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
    Authored by: Anonymous on Thursday, June 29 2006 @ 03:36 PM EDT
    Where is Laura DiDio now????????

    [ Reply to This | # ]

    Vindication for Wells, Opprobium for the "Justice" system
    Authored by: pgmer6809 on Thursday, June 29 2006 @ 08:34 PM EDT
    I applaud this decision as much as the next FOSS lover.
    However I don't see it as a vindication of the legal system. Consider that a
    competent, conscientious judge felt she had to endure 2-3 years of legal
    shenanigans before she felt safe in issuing a substantive ruling.
    SCO have no case. Everyone knows they have no case and never did have. The
    judges have said as much.
    Yet they still have the right to game the system, cost IBM miilions in legal
    fees, spread FUD over a wonderful FOSS product, and blatanly ignore the court's
    orders, and keep this up for THREE years.
    Their penalty?
    The "severe" sanction that they don't get to play anymmore.
    Gee - that's a real severe punishment all right.
    pgmer6809

    [ Reply to This | # ]

    But wait, Judge! We know the evidence exists!
    Authored by: ray08 on Friday, June 30 2006 @ 11:11 AM EDT
    There are "millions" of lines of code, in a briefcase, somewhere in
    Germany. We're looking for it right now!

    ---
    Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)

    [ Reply to This | # ]

    Stowell Comments; what's left
    Authored by: gvc on Friday, June 30 2006 @ 04:29 PM EDT
    "SCO spokesman Blake Stowell said Wells left strong claims asserting
    line-by-line Unix code was dumped into Linux, dismissing the more generalized
    claims that IBM misappropriated the architecture of Unix code."

    I have glanced at "the chart" and the only code copying that I see
    remaining is JFS and NUMA (items 1 and 2). These are based on the laughable
    theory that anything included in AIX/PTX becomes tainted for all time.

    But they do claim to have some SVR2 code that is copied in JFS. Is this because
    JFS was added to SVR2? Or is it BSD code or otherwise released code?

    And are there any other points that refer to copied code? I don't see any
    obvious ones but if anybody does, please speak up.

    As far as I can see, the remaining claims are:

    - SCO claims that Sequent employees were prohibited from working on Linux
    (I'd like to see some evidence for that)

    - SCO claims that anything in the world that has been in the same room as AIX
    or Dynix is protected

    - SCO claims that declining to repeat the mistakes of SYSV is a violation

    I think all the "sco forum" stuff and the ABI stuff all got thrown
    out. Where's this "line-by-line copying" claim that survives? Pulled
    out of the air, like everything else Stowell says?

    [ Reply to This | # ]

    Wells Grants in Part IBM's Motion to Limit SCO's Claims! In *Large* Part.
    Authored by: Anonymous on Saturday, July 01 2006 @ 12:24 AM EDT
    Personally, i dont think its 1 item or 1000 left in the case, it aint over until
    its over.

    Its good to see SCO getting a bit of a slapping, but it also gives them a chance
    to be alot more focused.

    In reality, until linux is "innocent" we're not out of the woods...

    [ Reply to This | # ]

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