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SCO's "BiPolar" Objections
Friday, July 21 2006 @ 02:30 PM EDT

I had a friend years ago. Not a really close friend, but a friend. She was one of the nicest people in the world, with a great sense of humor and just a lot of fun. Until she went off her meds, which she did periodically because she didn't like the way they made her feel. When off the necessary lithium, she would tell people horrible things about her husband, which we all believed. At first. She never had any proof, but we were all friends, right? You believe a friend. And she was so incredibly upset about his alleged infidelity and various other things that I naturally felt for her. She was so convincing in her indignation and hurt.

After a while, though, I began to notice a few details that weren't matching up with what I could see with my own eyes. She went to counseling, and I noticed from her stories and complaints that the counsel she got never seemed to support her side, much to her distress. She then began to tell some wild stories about the counselor too. That's when I started to really wonder. When I began to express doubts about a detail here or there, basically trying to help her get in tune with the counsel I realized by now she was being given, thinking maybe that was the best help I could give instead of reinforcing her unwillingness to accept it, she began telling the neighbors how awful I was.

It's sad but true that it wasn't until she began telling whoppers about me that I realized she had been telling whoppers about her husband, who in the end not only turned out to be nearly a saint but who took her back after she ran off for a while and treated her with real fellow feeling and love.

I thought of her today, when I started getting emails about a story SCO is now telling about allegedly destroyed evidence, told by the same "reporter" who told us in 2004, if you recall, that SCO had this hot, hot claim about Project Monterey and how SCO was going to trim IBM's sails for using SYSV4 on Power. Remember all that? I told you when the story first broke that it was going nowhere.

Well, you know how it turned out. It went nowhere. It was just a wild and untrue story that maybe helped the stock to shoot up, I can't recall, but the court didn't buy it. It was not a hot, hot new claim. It was a dud. Just like I told you. Does Forbes ever get anything right when it comes to SCO or Linux or Open Source?

By the way, when SCO tried to tell this same new story about destroyed evidence to the judge at the last hearing, she told them the matter wasn't properly before her and SCO's lawyer, Stuart Singer, said SCO would respect that:

THE COURT: That may or may not be true, but that isn't before me today.

MR. SINGER: Well, Your Honor, we think it relates --

THE COURT: That issue is not before me. The question is whether SCO is in compliance with the Court orders and whether or not it was a willful withholding, etc. So, I would prefer not to go into issues that are not before the Court.

MR. SINGER: Your Honor, we will respect that and move on to a subsequent issue. We think that it relates to the overall environment in which the motion is made.

That was then. This is now. To criticize her now for not handling a matter not properly before her is pretty low. Kind of reminds me of my friend talking against her counselor. Why bring up such scurrilous stuff in a forum where it isn't proper? I don't know, but could it have to do with the peanut gallery? Say, how's that stock doing today? I need to take a look near the end of the day and then again tomorrow. And when does SCO finally get it that the problem is not the court, not Linux, not IBM, not Groklaw ... that the problem is within?

You'd think SCO was already facing enough Lanham Act charges, for accusing IBM in public of things it seems unable to prove. They may be relying on the fact that you can't usually be sued for libel if you say something in court filings. But there is a limit to that, as I understand it. I recall reading about a case where the lawyers sent the court filings to the media, and that was enough to lose the protection. Here SCO's lawyer is giving interviews. It seems reckless to me.

Of course, if we believe SCO is making things up, in a bipolar, desperate kind of way, perhaps some patience is in order (I know. I'm just kidding), but this unsupported charge, which SCO said at the hearing IBM had said it didn't believe was true, comes from... well, shall we just say that one is wise not to listen to little boys who have cried wolf once too often? Remember the mountain of code IBM had allegedly put into Linux that Darl McBride said they'd already discovered, had in hand, and didn't even need to do discovery over? Where is it? What happened to that mountain? No. Really. Where is it? Did it melt? Or crash into the sea? Did SCO talk about that missing mountain in Appendix A [PDF]? I must have missed it, if it did.

As for all the rest of the yowls of pain from SCO in its Redacted Objections (somehow the wildest and most outrageous claims about IBM always seem to be the ones SCO wants to get out there), I'll spell it out as clearly as I can. The issue is and was simply this: did SCO comply with the court's orders by the deadline? That's it. The court ruled that in certain items it didn't and in others it did. End of story. All the rest is just so much pixie dust. Or perhaps I should call it PIPE Fairy dust?

I've collected some material that will help you to understand the legal maneurvering going on. First of all, you may have noticed on page 3 of SCO's Redacted Objections, that they are asking for a de novo review:

SCO sets forth in detail below the relevant background to the Order and then a detailed analysis of each of the foregoing points. SCO makes its objections under Fed. R. Civ. P. 72(b) and seeks a de novo review of the Magistrate Judge's ruling because, as IBM's motion requested, the Magistrate Judge dismissed many claims, which clearly has the effect of a dispositive ruling in this litigation.

This is one of those times when it's a matter of defining one's terms. Technically, the judge didn't dismiss any claims, unless they were claims already in the case, something I haven't seen SCO prove, and IBM's position was that SCO is trying to introduce new claims through the back door. It all looks to me, too, like stuff they would now like to add at the 11th hour that they certainly could have added to the case, with evidence, if they had done it in time. But this was about sanctions for not obeying orders. Wells clearly stated in her Order that it was not a decision regarding the merits. Judge Wells presented her statutory authority to sanction for violating three orders of the court. I guess SCO would like a judicial universe where you can play tricks and get away with it.

So you can get the subtlety of what SCO is trying for, here is FRCP 72b:

Rule 72. Magistrate Judges; Pretrial Orders
(a) Nondispositive Matters.

A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.

(b) Dispositive Motions and Prisoner Petitions.

A magistrate judge assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party or a prisoner petition challenging the conditions of confinement shall promptly conduct such proceedings as are required. A record shall be made of all evidentiary proceedings before the magistrate judge, and a record may be made of such other proceedings as the magistrate judge deems necessary. The magistrate judge shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact when appropriate. The clerk shall forthwith mail copies to all parties.

A party objecting to the recommended disposition of the matter shall promptly arrange for the transcription of the record, or portions of it as all parties may agree upon or the magistrate judge deems sufficient, unless the district judge otherwise directs. Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

SCO is arguing that the court should follow the second process for dispositive matters. Here's a snip of a ruling in another case that explains de novo review, and why SCO wants it to be that way:

We are not wedded to the lower court's rationale but may affirm the order of dismissal on any ground made manifest by the record. See Gabriel v. Preble, 396 F.3d 10, 12 (1st Cir. 2005).

A bit more on the why:

[1] Once a pretrial matter is referred to a magistrate and an appeal is taken from a ruling by that magistrate, the subject matter of that ruling is to be categorized under Fed.R.Civ.P. 72 as either "dispositive" or "nondispositive" for purposes of the standard of review to be exercised by the district judge. If the motion at issue is nondispositive then a district court is to disturb the magistrate's order only if it is shown that the ruling is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). If, on the other hand, the motion ruled upon is found to be dispositive, then the district court is to conduct a de novo review of that decision. Fed.R.Civ.P. 72(b).

Get it now? SCO hates the Order, because it's curtains for them, essentially, in my view anyway, if the Order stands. If it is a nondispositive ruling, then Kimball can only overturn it on the grounds that it is "clearly erroneous or contrary to law." In my opinion it is neither. I think SCO thinks that too, so they are trying for dispositive, so Kimball can listen to the evidence and decide on his own, starting fresh, without having to give any credence at all to Wells' Order. That is what this tempest in a teapot is about. Here's what else SCO wants, and can get if the Order is ruled dispositive:

(b) Objections to Magistrate Judge’s Orders, Reports, and Recommendations.

(1) Nondispositive Matter - 28 U.S.C. § 636 (b)(1)(A). When a pretrial matter not dispositive of a claim or defense of a party is referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A), the magistrate judge shall conduct such proceedings as are required and when appropriate enter a written order setting forth its ruling on the matter.

A party shall serve and file any objections to such order within ten (10) days after being served with a copy of the magistrate judge’s order, unless a different time period is set by the magistrate or district judge. A party waives his or her right to assign as error any defect in the magistrate judge’s order to which a timely objection has not been filed. A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. The district court to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the order found to be clearly erroneous or contrary to law. The district court may also consider sua sponte any order found to be clearly erroneous or contrary to law. [Fed. R. Civ. P. 72(a)].

(2) Dispositive Matters - 28 U.S.C. § 636(b)(1)(B). When a pretrial matter dispositive of a claim or defense of a party, a post-trial motion for attorney fees, or a prisoner petition is referred to a magistrate judge without consent of the parties pursuant to 28 U.S.C. § 636(b)(1)(B), the magistrate judge shall conduct such proceedings as required. The magistrate judge shall enter a recommendation for disposition of the matter, including proposed findings of fact when appropriate.

A party objecting to the recommended disposition of the matter shall serve and file specific, written objections to the proposed findings and recommendations within ten (10) days after being served with a copy of the magistrate judge’s report and recommendation. A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination of any portion of the magistrate judge’s recommended disposition to which specific objection has been made. The district court may also consider sua sponte any portion of the proposed disposition. The district judge may accept, reject, or modify the recommended disposition, receive further evidence, or recommit the matter to the magistrate judge with directions.

That's why SCO says the judge should have done Findings and all that blah blah. But here's the problem SCO faces with FRCP 72(a). The orders it has been found disobeying... well, they failed to object, and here's the problem now for them:

Fed.R.Civ.P. 72(a) provides that a party who fails to file a written objection to a magistrate judge's nondispositive order within ten days of receiving a copy "may not thereafter assign as error a defect" in the order. 28 U.S.C. § 636(b)(1) provides that any party "may serve and file written objections to such proposed findings and recommendations as provided by rules of court" within ten days of receiving a copy of the order. Several courts have held that a party must comply with this statutory provision in order to preserve a claim of error. See, e.g., Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997)("[i]n this circuit, as in others, a party 'may' file objections within ten days or he may not, as he chooses, but he 'shall' do so if he wishes further consideration."). When Fed.R.Civ.P. 72(a) or 28 U.S.C. § 636(b)(1) is operative, its requirement must be satisfied in order for a party to preserve a claim of error on appeal, even where Evidence Rule 103(a) would not require a subsequent objection or offer of proof.

It's simply too late for SCO to object to the three earlier orders, so all they can do, other than give up, is to claim that this was a dispositive motion and we all need to drag this SCO agony out a little longer before they wave the white flag, or have it waved for them. All the rhetoric is about trying to convince Kimball and the public that they are still in the game, that they still have a case, when I think they have to know by now that in a truly just and decent world, this case would never have been brought in the first place. And it's to preserve the matter for appeal.

Groan. They probably will drag us through that too. This is, after all, a case not founded in reality, as best as I can make out. If I'm right, could somebody please hand SCO some lithium before it destroys itself? This is getting painful to watch.


  


SCO's "BiPolar" Objections | 335 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: jkw on Friday, July 21 2006 @ 02:38 PM EDT
Good lord, first post!

[ Reply to This | # ]

Off topic
Authored by: MathFox on Friday, July 21 2006 @ 02:41 PM EDT
Let's do the "other legal and Open Source stuff" here. Keep it clean
and you can make links when you post in HTML

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

SCO's BiPolar Objections
Authored by: Anonymous on Friday, July 21 2006 @ 02:42 PM EDT
PJ,

Several years ago on the West Coast, A lawyer in SF was sued over the words in a
lawsuit. I never did find out what happened in that case so maybe SCO should
watch their words.

[ Reply to This | # ]

Allegations Table revised with Appendix A information
Authored by: stats_for_all on Friday, July 21 2006 @ 02:45 PM EDT
Old Nob's table summarizes and details all available particular descriptions of the 294 allegations.

[ Reply to This | # ]

Probability of an appeal?
Authored by: IMANAL on Friday, July 21 2006 @ 02:52 PM EDT
Considering SCO's track record, what is the likelihood of an appeal by SCO,
when/if IBM wins?

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

[ Reply to This | # ]

SCO's BiPolar Objections
Authored by: Nick_UK on Friday, July 21 2006 @ 02:52 PM EDT
How do you prove that IBM destroyed evidence if you have
millions of lines of code but will not tell/show anyone
what you have, nor what IBM destroyed?

Also what was raised on /. - if IBM destroyed
this 'evidence', then it is either in Linux kernel or it
isn't. If it is... where is it? If it isn't, "What's it
all about, Alfie?".

Nick

[ Reply to This | # ]

SCO's BiPolar Objections
Authored by: Anonymous on Friday, July 21 2006 @ 02:55 PM EDT
Hi PJ,

Sorry for my shallow and low effort understanding of this case. :-)

But on the Forbes article, if the SCO ARE in fact claiming that IBM has
destroyed all the evidence, doesn't that also mean they are claiming there is no
SCO code in Linux ?

Because if it were in Linux then IBM wouldn't be able to destroy it.



[ Reply to This | # ]

No claims were disposed of
Authored by: Anonymous on Friday, July 21 2006 @ 02:59 PM EDT
IANAL, but as far as I can tell, The ruling by Judge Wells did not dispose of
any of The SCo Group's claims. Their Second ammended complaint still exists with
all of its original claims. The December filng was not a list of claims. Claims
can only be defined in a complaint, either the original complaint or in an
amended complaint.

SCO's claims from their second amended complaint are:

1. Breach of IBM software agreement.

2. breach of IBM sublicensing agreement.

3. Breach of Sequent software agreement.

4. breach of Sequent sublicensing agreement

5. Copyright infringement.

6. Unfair competition.

7. Interference with contract.

8. Interference with contract.

9. Interference with Business Relationships.

The list of items in the December filing were merely a list of specific examples
of misappropriated materials. Unfortunately, some of the items were not specific
enough.

[ Reply to This | # ]

Forbes question: is monetizing always good?
Authored by: freeio on Friday, July 21 2006 @ 03:07 PM EDT
I believe that one reason some reporters and editors get it consistently wrong
is that they have a philosophical belief that monetizing (of _whatever_) is
good, and thus that anyone who gets in the way of monetizing (in this case free
software) is somehow just wrong. So SCO, by monetizing (in this case free
software, and perahps by attacking IBM) is the good party in this particular
case, and IBM (in this case by blocking SCO's monetizing, even at the expense of
IBM) is the bad party. Once they believe this, the slant and pick of their
articles becomes consistent with their philosophy.

You can many times determine the philosophy of a publication by reading a few
successive issues, and seeing which direction they consistently run with their
articles, and even the selection of topics. What you see is why, for instance,
I subscribe to Fortune and not Forbes. It is a matter of their relative
philosophies.

---
Tux et bona et fortuna est.

[ Reply to This | # ]

Why doesn't Forbes get in trouble for this
Authored by: Anonymous on Friday, July 21 2006 @ 03:12 PM EDT
Forbes's lies have cost IBM business. A large number of execs from many
companies read Forbes over the past few years at the same time they were making
.NET-on-Microsoft vs Java-on-IBM decisions. They have probably cost other
companies (RHAT, Novell, come to mind). These same lies have also well
rewarded Forbes advertisers.

They apparently continue with lies and unfounded accusations very willingly with
zero effort to seek out the truth.

How is it that Forbes doesn't get in trouble for the disinformation they
spread.

[ Reply to This | # ]

Perhaps Darl is the one who is bipolar...
Authored by: ElvishArtisan on Friday, July 21 2006 @ 03:13 PM EDT
It would explain an awful lot of what otherwise seems inexplicable about this sorry case.

OK, just kidding ... I don't want to violate PJ's standards of civility... :)

Cheers!

[ Reply to This | # ]

Unseal?
Authored by: Udo Schmitz on Friday, July 21 2006 @ 03:17 PM EDT
Lawyer blabbing in public about a sealed filing, would that be enough reason to

have it unsealed? And weren't they supposed to not do that anymore? The
blabbing-in-public-thing?

[ Reply to This | # ]

  • Disbar? - Authored by: MplsBrian on Friday, July 21 2006 @ 04:02 PM EDT
  • Unseal? - Authored by: John Hasler on Friday, July 21 2006 @ 05:34 PM EDT
    • Unseal? - Authored by: Udo Schmitz on Saturday, July 22 2006 @ 05:29 AM EDT
    • Unseal? - Authored by: Anonymous on Saturday, July 22 2006 @ 08:03 AM EDT
      • Unseal? - Authored by: Anonymous on Saturday, July 22 2006 @ 11:59 AM EDT
SCO's BiPolar Objections
Authored by: gbl on Friday, July 21 2006 @ 03:23 PM EDT
I'm amazed that the US Judges haven't risen as a body and marched on TSG
headquarters carrying blazing torches and sharp wooden stakes...



---
If you love some code, set it free.

[ Reply to This | # ]

Tempest in a teapot
Authored by: Night Flyer on Friday, July 21 2006 @ 03:29 PM EDT
I see several ways to look at this:

1.) If the IBM programmers were looking at IBM's portion of DYNIX, and
evaluating what might be suitable for Linux, and it never got to Linux, the
issue is irrelevent. (Linus et al don't accept all submissions into Linux.)

2.) If the IBM programmers were looking at IBM's portion of DYNIX, and
evaluating what might be suitable for Linux, and it did get into to Linux, SCO
should have been able to cite the code. But the issue is still irrelevent,
because IBM is allowed to do this with its code.

3.) If the IBM programmers were looking at the Sys4/Sys5 portion of DYNIX, and
evaluating what might be suitable for Linux, and it did not get into Linux, the
question is moot even before we analyze if the portions in question 'belong' to
SCO or not.

4.) If the IBM programmers were looking at the Sys4/Sys5 portion of DYNIX,
evaluating what might be suitable for Linux, and it did get into Linux, we need
to do more analysis to see if the portions in question 'belong' to SCO or not.

We are back to the question of specificity, more on this later.

5.) Well maybe the question is something about UNIX methods and concepts of
UNIX, but I think a few articles ago GROKLAW experts pretty showed this to be an
empty argument.

6.) This gets us back to contractual arrangements between IBM and SCO. In my
mind the proof must be in the pudding:

It comes down to SCO needing specificity on what was copied. Exactly what, from
exactly where to exactly where. But SCO didn't do that. SCO can easily find
what IBM contributed (and was accepted by Linus et al), as it would say so in
the file documentation in Linux. SCO would not have to look at all code
everywhere in Linux.

So I think this is a 'tempest in a teapot'.

In terms of IBM, I imagine that in the normal course of business, lots of
programming dead ends are deleted from the IBM system. If it never saw the
light of day, the question is moot in my mind.

---
Veritas Vincit - Truth Conquers

[ Reply to This | # ]

SCO's BiPolar Objections
Authored by: Anonymous on Friday, July 21 2006 @ 03:31 PM EDT
The basis for this entire case is SCO's claim that IBM has transferred code,
methods or concepts "from" UNIX "to" Linux. To prove this,
at a minimum SCO needs to show that:
1) The "code, method or concept" EXISTS in some version of UNIX
2) The "code, method or concept" EXISTS in some version of Linux
3) SCO "owns" the "code, method or concept"
4) IBM was responsible for the transfer of the "code, method or
concept"

Any claims that SCO might make against IBM about destruction of Dynix or AIX
code might affect SCO's ability to prove point (4), but it does not affect the
first three critical points. SCO has had access to both the UNIX code and Linux
for many years. If they cannot show a connection between those two, and prove
ownership of anything found in common, then point (4) is moot. The reason that
IBM wanted the 190+ accusations of misuse dismissed is that SCO failed to
document the first two pieces of information. Without that, point (3) cannot be
evaluated and a defense determined.

Any accusations about destruction of evidence is merely smoke to hide SCO's
failure to find enough evidence to make a case.

[ Reply to This | # ]

Will there ever be an apocalypse?
Authored by: Totosplatz on Friday, July 21 2006 @ 03:36 PM EDT

Will there ever be an unveiling of the sealed "evidence" that TSCOG has been so un-specific about? Or will we ever be in the dark about the details of their final thrust, the roughly 300 items they had asserted as violations?

Or is there any possibility that someday we outsiders will be allowed to see what TSCOG filed under seal? What about if TSCOG wins? What about if they lose? Doesn't it seem that win or lose the public benefit is to know exactly what their assertions were?

Not a lawyer, with genuine curiosity. (I have carefully removed the word "claims" from this post because of the strict legal meaning(s) associated with that word.)

---
All the best to one and all.

[ Reply to This | # ]

SCO's BiPolar Objections
Authored by: Yossarian on Friday, July 21 2006 @ 03:42 PM EDT
> To criticize her now for not handling a matter not
> properly before her is pretty low.

Obviously.
I also miss the point of that. The appeal court(s) would
support Judge Wells' point of "follow normal procedures."

If SCO claims are more than "hot air," then it can file
a complaint with the court about IBM's destruction of
evidence. If a motion will put the issue *properly* in
front of the court, Judge Wells will have to hear it.

If SCO claims are baseless, why even go there?
In a Civil case there is no Miranda warning, but everything
you say, anywhere, can be used against you. The PSJs are
just an opening shot, and nobody knows what IBM cooks in
the basement. Why give IBM baseless statements that can,
and will be, used against SCO?

[ Reply to This | # ]

SCO's - down and (almost) out!
Authored by: SilverWave on Friday, July 21 2006 @ 03:54 PM EDT
And they know it... as this last gasp shows.

re:SCO
Even the speculators are catching the stench of the decay,

Good riddance to bad rubbish!

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Surreality
Authored by: Anonymous on Friday, July 21 2006 @ 04:36 PM EDT
I sometimes wonder if at the end of this case DMcB is going to try to sell the
entire case to Tate modern for $100M as a piece of post post modern surrealism
commenting on the state of the legal and business world. This is the only
explanation that really makes any sense to me all this stuff about being a
Microsoft proxy just adds to the artwork.

Oh dear! if its an artwork it can be copyrighted...

Daly & Duchamp (& possibly Esher) would be proud of them.

Jaydee not logged in.

[ Reply to This | # ]

De Novo
Authored by: overshoot on Friday, July 21 2006 @ 04:55 PM EDT
I confess to harboring a little fantasy wherein:

Judge Kimball, upon this motion from SCOX, opposition by IBM, reply by SCOX, and oral arguments considers the matter before the Court from both standards (so as to scotch the beast either way.)

Upon examining the matter from a "clear error" standpoint, he finds that the Magistrate Court was within its authority and in all matters ruled correctly.

Upon de novo review he finds finds that the Magistrate Court erred in only one matter, where the "negative knowledge" claims were also not identified with the specificity ordered by the Court and thus also should be stricken. He finds that the Magistrate Court's opinion explicates the District Court's reasoning so well that he enters it into the record with his own endorsement.

In the matter of whether the matter before the Court is dispositive, then, he finds that the question is moot as the outcome is the same either way excepting the issue of the "negative knowledge" claims. As regards them, he finds that although de novo review in this case is adverse to the Plaintiffs, they asked for it and thus the Court accepts their petition to have their own claims stricken.

Then I wake up.

[ Reply to This | # ]

  • I love you - Authored by: Anonymous on Friday, July 21 2006 @ 10:11 PM EDT
SCO's BiPolar Objections
Authored by: Anonymous on Friday, July 21 2006 @ 05:06 PM EDT
Slightly off-topic, but on-topic enough I don't think it deserves to be in the
Off-topic thread.

Something I wondered when Judge Wells's ruling was first announced. Let's say
these particular issues all do get dropped from the case because of the Judge's
order (that is, the Judge's order is upheld on appeal or whoever would hear the
appeal declines to consider it). So, they are no longer part of this case.

Does that stop SCO from bringing another suit against IBM about the same claims
and starting from the beginning?

Does that stop SCO from bringing suit against other parties over the claims that
were never settled in the IBM case because they were dropped due to
insufficiently specific evidence? It's my understanding that if a judge or jury
actually rules against a party, they can't very easily bring suit then against
other parties on the same thing, because the third parties can simply say,
"A court already ruled on this claim in SCO vs IBM and it found the claim
to be without merit".

But in this case, if the claims are dropped without the *merits* of the claims
ever being addressed, what's to stop SCO from bringing the claims to court again
(presumably they would have to claim to at least have more specific evidence)?
Could this order, now being viewed as a good thing, really be a bad thing
because it's unexploded ordinance?

[ Reply to This | # ]

Gee, why *would* anyone libel a judge in a major publication?
Authored by: Anonymous on Friday, July 21 2006 @ 05:13 PM EDT
> Why bring up such scurrilous stuff in a forum where it isn't proper?

Perhaps to help goad Judge Wells into doing something appealable?

Or it could just be their latest "motion" in the "Court of Public
Opinion," where they've historically done their best
"litigation."

This is all speculation, but it's amusing speculation. Anybody else got another
opinion that they want to add?

[ Reply to This | # ]

more like SCO's can't tell dream from reality
Authored by: Anonymous on Friday, July 21 2006 @ 05:17 PM EDT


The Judge asked SCO "is this all you've got?". SCO said yes. In
their appeal SCO says, "SCO provided all the identifying information it had
regarding the "misused materials" "

But they keep having this dream where they have a moutain of evidence against
IBM. And they can't understand why the Judge doesn't accept that.

That darned Judge keeps asking for evidence and SCO keeps having the dream.

I think that someone should slap SCO awake.

[ Reply to This | # ]

But seriously, guys....
Authored by: Anonymous on Friday, July 21 2006 @ 05:59 PM EDT
I have been wondering about this for a long time. At what stage does the drama
change from IBM being on the defensive to SCO being defensive? When do the
Lanham / Oxley-S / Libel / Stock scams etc. etc. cases against SCO start? I know
we have to wait for this slow-motion tradegy to play out, but what about the
CRIMINAL aspects of this case?

PJ, Groklawyers? When will we see the tables turned?

[ Reply to This | # ]

What's the Problem with IBM Destroying Evidence?
Authored by: Anonymous on Friday, July 21 2006 @ 06:27 PM EDT
I mean, hasn't SCO manufactured enough 'evidence' to go around? :)

[ Reply to This | # ]

I think I see now where SCO is going ...
Authored by: Anonymous on Friday, July 21 2006 @ 06:31 PM EDT
I think I see where SCO is now going witht heir methods and concept argument.

Over the years (and even as recently as last week) I've heard of programmers and
companies get in trouble not because they used copyrighted source code directly,
but used it as a reference for ideas when writing their own code.

Example: "How did they do that? Lets have a look. Oh ok, so I just need to
do this then"

These are usually based on methods and concepts where a section of a source, or
even the entire source has the same feel as another source.

While it can be harder to proove, people do manage to win these kinds of cases.

The only way around this is to have 1 group rip apart the original and do up a
design, then have a completely unrelated group write the code based on the
design. But this hasn't always worked due to poor implementation.

SCO now has the feel of going in this direction and its going to loose with all
the information that is available to the general public, and the previous ?sys
V? source release.

The only way SCO would of had have a hair of a chance is to show something that
is not in the public documentation about Unix but has managed to make its way
into open source. But as far as I can tell they have failed to do so.

[ Reply to This | # ]

SCO's "BiPolar" Objections
Authored by: rp$eeley on Friday, July 21 2006 @ 08:58 PM EDT
Great anecdote PJ, and illustrates the point well. Thanks. I'm sure it's not the
first nor the last from SCO.

[ Reply to This | # ]

Wells Misquoted: "...that's a question I'm asking myself"
Authored by: chrisbrown on Friday, July 21 2006 @ 09:10 PM EDT

The Forbes article has SCO's Brent Hatch misquoting Magistrate Judge Wells:

"I don't know if that's true or not, but that's a question I'm asking myself," Hatch says.

Hatch, here, implies Judge Wells is giving consideration to SCO's allegation and wants to get answers. This is far from what she actually said:

"That may or may not be true, but that isn't before me today."

While we all have seen reporters get quotes wrong, can Brent Hatch, as an officer of the court, be sanctioned for twisting a Judge's words in this fashion? Does this quote help IBM's Lanham Act claims as evidence of misleading the public?

[ Reply to This | # ]

SCO's "BiPolar" Objections
Authored by: Anonymous on Friday, July 21 2006 @ 09:39 PM EDT
"Remember the mountain of code IBM had allegedly put into Linux that Darl
McBride said they'd already discovered, had in hand, and didn't even need to
do discovery over? Where is it?..... Did SCO talk about that missing mountain
in Appendix A [PDF]? "

Actually, it's a very small mountain. 80 to 100 lines. (So they lost count after

they ran out of fingers and toes :-). And it's item 185. They are trying to
make great mileage out of item 185. It's mentioned several times in Appendix
A. I just hope they checked that it wasn't in BSD first.

Actually, I hope they didn't check. It turning up in BSD could only damage
their case further.

Their only ghost of a chance of survival is finding some way to argue that the
Dynix code was not brought under Amendment X when IBM bought Sequent.
And that doesn't look particularly promising either.

Mike S.

[ Reply to This | # ]

Guess as to what SCO's complaining about
Authored by: Khym Chanur on Friday, July 21 2006 @ 10:06 PM EDT
IANAL, but my guess: after the court orders IBM to hand over access to the AIX/Dynix/Sequent repositories, IBM decides "the court didn't order us to turn over anything else, so it's now okay to delete any other UNIX related junk that's been gathering dust just because of this stupid lawsuit. So, Dynix developers, it's now okay to delete all the out-of-date Dynix files you've been keeping on your workstations, to free up space on your hard-drives". And now SCO is going to try to harp on that.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

Brent, Son of Orin
Authored by: Anonymous on Friday, July 21 2006 @ 10:09 PM EDT
In case anyone has forgotten, or perhaps didn't know, Brent Hatch is the son of
Utah Senator Orin Hatch. Brent Hatch probably knows all the federal judges in
Utah quite well.

[ Reply to This | # ]

SCO's "BiPolar" Objections
Authored by: Anonymous on Friday, July 21 2006 @ 10:25 PM EDT
I'd just like to point out on this, SCO is quite possibly right:

Step 1.) Retrieve code from versioning system.
Step 2.) Edit code.
Step 3.) Commit code.
(Repeat until project finished.)
Step 4.) Delete code from finished project, since it's still on CVS.

ZOMG DELETED CODE!
Not that, y'know, it makes a difference. But I'd be surprised if they weren't at
least technically right, since deletion of old dev files is the norm, rather
than the exception.

[ Reply to This | # ]

What am I missing?
Authored by: sk43 on Friday, July 21 2006 @ 10:54 PM EDT
On June 12, 2003, Darl told Sam:
... IBM's right to use and distribute the Software Products including derivatives and modifications, specifically AIX, will terminate as of tomorrow, June 13, 2003. Pursuant to paragraph 6.03 of the License Agreement, IBM shall discontinue use of and return or DESTROY all copies of the Software Products as defined in the Related Agreements, which includes derivative works and methods.
Sounds like IBM complied.

[ Reply to This | # ]

  • What am I missing? - Authored by: Alan(UK) on Saturday, July 22 2006 @ 05:07 AM EDT
    • Not I - Authored by: Anonymous on Saturday, July 22 2006 @ 02:38 PM EDT
  • Good point - Authored by: Anonymous on Saturday, July 22 2006 @ 08:09 AM EDT
SCO's "BiPolar" Objections
Authored by: sonicfrog on Friday, July 21 2006 @ 11:03 PM EDT
All I can say is that I almost fell out of my chair when I read that at
Forbes.Com... and I have a pretty big chair!

[ Reply to This | # ]

Plan gone wrong
Authored by: Anonymous on Friday, July 21 2006 @ 11:03 PM EDT

SCO came up with a plan following a successful settlement with Microsoft:

  1. Sue IBM for something in a very public manner
  2. IBM settles rather than go through a lenghty lawsuit
  3. Yarro, Darl, and their merry men ride off with a pile of money, in search of another deep-pocketed victim

That SCO thought of it as a Business Plan just goes to show the shallowness of their ethics.

All the absurd proceedings we are (still) witnessing stems from the fact that IBM didn't play along, but chose to call their bluff.

[ Reply to This | # ]

Propaganda down the Hatch: Dan and Brent: Two Tight Bunkmates Perform
Authored by: webster on Saturday, July 22 2006 @ 12:35 AM EDT
1. The amusement never ends. What did we do before SCO? Hatch and Lyons got
together and put something up on F**bes. [I find the magazine a bit pretentious
with an agenda. I suggest not saying or writing it. Sub any vowel for the *'s
and then try to say it. It's fun!]
http://www.forbes.com/2006/07/20/sco-ibm-evidence_cz_dl_0720sco.html?partner=msn


2. One could write an article four times as long as this article in refuting
it. We'll try not to. First the light stuff:

--*--"[IBM] destroyed evidence by ordering its programmers to delete copies
of software code that could have helped SCO prove its case."--+--

So Hatch explains that they could not provide the code for Wells because it was
destroyed.

Now Hatch does not know what the code was, but he knows it was the smoking gun.
You make knee-jerk, conclusive connections like these when you are desperate and
grasping at straws. This programmer's deleted code has rescued them from
silence. The odds are 2-1 that if this code [or a method or Concept therein]
made the deadline, it would have been stricken.

So Hatch sidled up to his gullible good buddy, Lyons, who dreams in Headlines,
whispered the promise of a violent lead: "Crucial,"
"Destruction," "Evidence."

Fortunately, for Hatch and SCO, Lyons research didn't go so far as to find that
Marriott denied this episode and the Judge would hear none of it at hearing. I
guess approachiing Lyons with a tip is risk free. He'll always take your spin
too. I guess he has wants you to come back with more such tips. It's risky to
go to some reporters; they may write your story up neutral or with the
opponent's spin. Maybe the F**bes editor had a slant too.

3. A little more on the deleted material:

--*--"Hatch says the allegation has become relevant now, because it helps
explain why SCO could not meet demands to cite source code."--
*--

No it doesn't, Mr. Hatch. It is one reason out of millions why you couldn't.
You don't know if it is relevant. It is not relevenat to why you brought the
suit in the first place. It is also harmless because you have every released
version of the material, and numerous other developmental renderings.

This little episode, limited, one-sided, ethically dubious, and disrespectful of
Court process, is why publicity is discouraged until the matter is resolved in a
Courtly manner. It is a stunt in which you upstage your opponent and the Court.
The truth is not established and it might not be yours. If it is possible, SCO
has lost even more good will.

4. Now for the heavy stuff, discussing the Judge in the press.

--*--"sharply worded...criticized SCO's conduct....annoyed....she
overstepped..."--*--

It's obvious Lyon's slant, and Hatch's, came from Hatch in discussing the Judge.
Discussing [criticizing] a Judge in the Media in an ongoing case where the
Judge will continlue to decide your issues??!!

Hatch and SCO see the trend. They have given up on Wells. They don't care what
she thinks any more. Worse for them she doesn't let them perform their stunts
in court, like drag this stolen code stuff up. She keeps them focussed on the
issues, IBM issues, like their lack of compliance. So they are frustrated and
desperate and they have taken the show outside beyond her control.

5. It can also be a signal to Kimball. The good ole boys can't talk to him at
fundraisers and social functions about cases. So they go to to the media.
Wells is overreaching. She is getting personal. She is a control freak. Look
at that obsessive 39 page order. It was that time of the month. This woman is
running a nursery school. Hey, Kimball, give your good buddies a break. These
things don't fit neatly in a Memorandum.

6. On a minor note Lyons skillfully flipped out a paragraph with "huge
implications," "Linux," Red Hat, Novell and Hewlett-Packard.
Foreshadowings of doom might help it along.

7. I wonder if we will see Mr. Hatch front and center at Magistrate Wells next
SCO hearing.

---
webster

[ Reply to This | # ]

When will t hey dismiss their council?
Authored by: Anonymous on Saturday, July 22 2006 @ 08:11 AM EDT
It's getting towards that stage where SCO's only remaining showboating gambit
will be to dismiss their council, throw themselves on the mercy of the court,
and try to declare an 18th hole Mulligan.

[ Reply to This | # ]

The Power of Positive Thinking
Authored by: Anonymous on Monday, July 24 2006 @ 04:29 AM EDT
SCO are not "bipolar". What's happening is they realise that their best chance of winning is to remain optimistic and play the game as if they're going to win. This is called "visualization" and it can be effective. It has the obvious danger of making you ignore problems, but SCO absolutely should be trying it.
- giafly (MA psychology).

Visualization is is one of the most powerful mental training exercises available in sports enhancement today - regardless of the sport you play. Visualization involves taking some time to relax your mind, and then following this by vividly imagining yourself doing the perfect performance - and doing this on a regular basis allows you to pre-program your performance, increase your levels of inner belief, and overcome technical flaws, intimidation, nerves, and much more.
Mind Training

"Positive thinking is a mental attitude that admits into the mind thoughts, words and images that are conductive to growth, expansion and success. It is a mental attitude that expects good and favorable results. A positive mind anticipates happiness, joy, health and a successful outcome of every situation and action. Whatever the mind expects, it finds."
Success Consciousness

[ Reply to This | # ]

SCO's "BiPolar" Objections -- redacted Mountain of Code
Authored by: Anonymous on Monday, July 24 2006 @ 02:36 PM EDT
Probably in a redacted appendix there is a table that says lines 1 through 15
of file aix file matches lines 31 through 45 of System 5 code file whatever
which matches lines 61 through 75 of Linux code file what_is.

This appendix is probably five million pages long as it documents every piece of
infringing code.

Which appendix is this? How should a common citizen know, it's redacted.


Blaaahhhhh!!!!!!!!!!!!

[ Reply to This | # ]

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