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Report from Today's Hearing in SCO v. IBM - Updated 5Xs |
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Tuesday, October 24 2006 @ 03:17 PM EDT
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Chris Brown, Crocodile Dundee, our Aussie visiting SLC, and cxd all attended the hearing and their reports are now coming in. Chris says first they talked about scheduling. Everyone seemed to agree that there needs to be a postponement of the trial date, to make room for hearings on all the summary judgment motions. Kimball asked whether the SCO v Novell case should go first. Of course SCO's attorney Stuart Singer said SCO v IBM should go first, and IBM's David Marriott said Novell should, because of two issues: whether SCO even has any copyrights and second Novell's waiver of any alleged breach. The judge took that under advisement. They also discussed how long each side would be able to take for argument. On SCO's objections to the Wells Order, that too was taken under advisement. More details to follow.
Crocodile Dundee tells us this: The hearing ran from 10 to 12 and the main points SCO raised are:
1) the things Judge Wells dismissed are (in effect) claims, thus the motion of IBM's was dispositive and requires de novo review;
2) Judge Wells' decision effectively excluded the information SCO *had* presented, rather than excluding information it has allegedly withheld. SCO contends that IBM could simply object to that at trial.
There were also some scheduling discussions at the end where SCO noted that they wanted to get to trial as fast as possible. When IBM and SCO were asked for their opinion as to whether Novell should go first, SCO said No, and IBM said that there were some significant reasons why they should.
SCO asked for a 1 week delay (and then another). Judge Kimball asked if he should schedule for the 23/24 December? (He was just kidding).
SCO reckons that the trial could still go forward on Feb. 7, but IBM says realistically the court won't hear the 10 outstanding motions (this was the 2 days 23/24 Dec -- probably will be the week earlier) and then rule on this and then allow SCO/IBM to get ready for trial. The Judge agreed with IBM.
It look like the trial will be delayed, and if this occurs, there may be no openings left for a 5 week trial.
My feeling is that SCO desperately wants this to go ahead before the Novell hearing, even though they say the Novell hearing has almost nothing to do with this. SCO vs. Novell is all about copyrights, they say, and SCO vs. IBM is all about contracts you see.
Chris adds this information: that regarding the summary judgment motions, what was decided was that SCO and IBM will present a
proposed schedule to allow hearings to be completed before Christmas. And did SCO bring up spoiliation again? Yes, of course. Chris also says that his personal impression is that Kimball is inclined to be more lenient than Judge Wells regarding the evidence that she tossed out. He thinks he's inclined to go for a de novo review, but of course, this is just his personal impression. IBM called the 180+ items evidence that wasn't properly shown by the deadline; SCO called them claims. Singer argued that if you throw out all the evidence of a claim, you have in effect thrown out the claim. And Chris felt that Kimball seemed to be influenced by that argument. However, he says it's very hard to know what Kimball is thinking. He doesn't broadcast it. SCO raised another issue: their position is that Wells was required to present particularized findings, explaining why each item was excluded. Also that she was required to hold an evidentiary hearing. Marriott said she did review them individually, and she found that SCO hadn't presented any lines of code on any of them, no lines of AIX code on any of those 180+ and only 3 that referred to Linux, without saying what version or line. They just referred to files. Because they didn't provide details, she wasn't required to particularize. What could she particularize about?
cxd tells us this: Some of the best stuff happened at the end of the hearing.
Kimball asked both if the Novell litigation should go first.
Singer said no way -- these issues are more related to IBM and IBM should
go to trial first.
Marriott said that letting Novell go first would eliminate much of the
case. He thought that would be a great idea. So Kimball is thinking
about how the cases relate. That is good, I would think.
Kimball also asked about the time required for all of the summary judgment hearings and how
that would affect the trial date. Mr. Singer said that SCO wanted as
little delay as possible because they want to have their day in court
as soon as possible. They actually said it: "We want the trial as
soon as possible."
Kimball then proposed they hear the motions on the 23rd and 24th of
December, takes a few moments to let that sink in to both parties, and
then says he was just joking. I wonder if that was in relation to the
Christmas holidays past?
Mr. Marriott did not see how the current schedule could hold, given the
amount of work before the court. He said that each motion would
require a hearing needing about 45 minutes of initial argument, let alone
rebuttal. This all took place before Judge Kimball asked about the
Novell trial going first.
Much of this is going to depend on if Kimball agrees that Wells was
not throwing out causes of action, that all of the causes of action
are unrelated to the individual unsupported with line and file
information items that IBM are wanting eliminated from the case.
Update2: And now, after reviewing his notes, cxd adds more: SCO was very upset that there was not an evidentiary hearing, that
each item should have been heard on an up-or-down basis.
They wanted an up or down on each, based on the merits of each item.
They said that often the evidence is included in an email or web site and that
only IBM can know what its developers knew. "It is in the mind of the
engineers -- how can SCO be expected to know what is in their minds?"
SCO did say that Judge Wells did not follow 10th Circuit law when
throwing out the 194 items. And she denied them an evidence
hearing. This came up over and over again.
Mr. Marriott later made it clear that SCO could have deposed these
people if it wanted to.
SCO complained that Judge Wells failed to consider lesser sanctions
and said this was enough to overthrow her ruling.
SCO also brought up willful noncompliance again. They said that IBM
has no evidence that SCO had evidence and that they did not produce
it. We are going around and around again.
Mr. Marriott said the ruling of Judge Wells was not dispositive, and it
fit a clear standard, and that even the cases cited by SCO
support IBM's view. Marriott later explains how all of the claims
remain in the case, just the items of evidence that were not backed up
were removed. I love it when they use case law against SCO when it is
their cases.
More details to follow. It sounds like our guys had fun. Update:
And now Chris is home and here's the more detailed version:
Since the arguments on SCO's Objections to Magistrate Judge Wells'
Order of June 28, 2006 mostly followed the line of reasoning in their
respective motions, I will first tell you about the other issues raised
by Judge Kimball for discussion.
After the hearing on the scheduled matter, Judge Kimball said that the
current trial date of Feb 26th, 2007 was set mid-2005 before the present
Summary Judgement motions were raised. He pointed out that these
Summary Judgement motions are scheduled to be fully briefed by December
8th, then hearings held, then Judge Kimball has to give them due
consideration before ruling. He pointed out that when the schedule was
written, there would have been 5 months from the summary judgment motions
before trial, and now there are two and a half. He was concerned that
there would not be sufficient time to prepare for trial. He asked both
David Mariott and Stuart Singer to comment. Mr. Singer said that SCO
very much wants to get to trial as soon as possible, Mr. Marriott said
that IBM does as well, but being realistic, that he believes the trial
may need to be delayed.
Judge Kimball asked about the Novell case and what their thoughts were
on whether to have the Novell case proceed first or IBM. Mr. Singer
said that the IBM case should proceed first. Mr. Marriot said that the
Novell case should proceed first for two reasons: first, that the issue
of whether SCO received the copyrights to UNIX bear on the copyright
issues in the IBM case; and second, whether Novell retained the right to
act on SCO's behalf would bear on the contract issues in the IBM case.
Judge Kimball asked how much time each party would need at a hearing
to argue the summary judgment motions. Mr. Marriott opined an hour and
a half between the two of them for each motion. Mr. Singer estimated an
hour. (Note: Having watched these two I don't know how they could have
said that with a straight face). Judge Kimball asked if they're
indicating that two full days could cover it, to which Mr. Singer opined
that one day would do. Judge Kimball said that with 10 motions and an
hour and a half apiece, it amounted to 15 hours and he believes people
likely couldn't handle that, what with needing to go to the restroom and
all.
They agreed that Mr. Marriott and Mr. Singer, since they seem to still
be on speaking terms, will work together to come up with a new proposed
schedule for the hearings on the summary judgment motions and trial date.
After this was agreed to, Mr. Singer said that the current schedule
for SCO to respond to the summary judgment motions was agreed to in
light of the schedule for a February trial date, and that if that's to be
delayed, SCO would like an additional week to respond. Mr. Marriott said
that if it was only an additional week, IBM could agree to that.
As you may have surmised from my earlier email, David Marriott spoke
for IBM and Stuart Singer for for SCO. Also present for IBM was Todd
Shaughnessy, Michael Burke, and Wing Chiu. SCO also had Sashi
Boruchow, Mark James with Ryan Tibbetts in the audience. [Please excuse any misspellings. Feel free to contact us for corrections.]
Mr. Singer handed out a book for items for reference while he spoke.
He said that the order of Judge Wells infers that SCO was willfully
withholding information from the court. He said that is not the case
and that the present opposition relates to the significant number of
tech claims dismissed without their day in court. He said that SCO has
been as complete and forthcoming as possible. While IBM insists on a
nine-point coordinate to identify the claims, the source code
coordinates are simply not known to SCO. He argued that Judge Wells did
not consider other 10th circuit alternatives to dismissal and it was not
based on an evidentiary hearing. Mr. Singer said they took the
obligations of this court very seriously, that they had experts working
thoughout 2005 on this extensive list of 294 items. He said that Marc
Rochkind was the principle expert working on that list.
He said SCO is not holding anything back and that Mark Rochkind
testified so. He said for instance that only IBM's technologist knows
what lines of Dynix code were in his mind when he wrote Up to the
Linux community saying, "Here's how we did it in Dynix," that there is no
evidence that IBM asked their technologist what code he was relying on.
Only IBM knows this. He refered to a chart in the book he handed out
saying that for each of the 198 items, SCO provided what they know, including
Linux files. He pointed to Item 146, Differential Profiling. In that
item are the scripts from Dynix and where they came from. That those
appear in Linux, and they'd identified the location on IBM's server where
the code exists but that SCO could not access it because it was behind
IBM's firewall.
He pointed out Item 53, Semaphores, where IBM's Tim Wright disclosed
that these are not currently used in Linux and they are from Dynix. SCO
identified the Linux files it appears in. SCO said that this claim was
struck (by Judge Wells). He pointed out Item 38, Checking Updates in
Memory, same thing.
He said that 10th Circuit law requires particularized findings for
sanctions of this type and that they don't have that here, that all
there is is a Magistrate's statement that said all 198 were defective. He
said that SCO expressly requested an evidentiary hearing on this. He
said that it's required with disputes between respective experts over
requisite specificity.
Mr. Singer said that if there's a concern of sandbagging, the
appropriate remedy is to prevent the party from supporting it with
evidence and should be addressed at the time of trial.
At this point Mr. Singer brought up the details of their allegation
of IBM spoiliation of evidence. I will not repeat it here as I believe
it is under seal. Mr. Singer said that IBM's [alleged] spoiliation of
evidence pertains to why SCO doesn't have more details on their claims.
He said that Judge Wells' order is dispositive and therefore a de novo
review is required, that IBM has backtracked on this but that IBM filed a
motion to limit SCO's claims. He said that each and every one of the
188 claims were a breach of contract, that issues of law, of legal
principles, require de novo review, and that there should also be an
evidentiary review.
Mr. Singer stated that SCO has not violated any court orders, that
IBM provided proposed language of version, file, line of code but that
the court's orders do not include this language. He said that IBM's
principal interrogatory of version, file, line of source code uses the
words "where appropriate."
He said that there is no evidence of willfull non-disclosure. That
the court must have intentional non-compliance showing that SCO has the
evidence within their ability to provide, that they withheld.
Judge Kimball asked Mr. Singer about SCO's public statements [of
having more evidence]. He asked Mr. Singer "How would you interpret
those statements?" Mr. Singer replied that those statements were made
several years ago and have not been made since, as it's a matter for the
courts now, that most of those statements related to methods and concepts
that were identified in 2005, that none of those statements say SCO has
the source code for these claims and were not going to provide it.
Mr. Singer brought up Judge Wells' analogy to a Nieman Marcus
shoplifter in her order. He said that a better analogy would be the
shoplifter was told what it was he stole but was let go because he was
not told the page in the catalog which it appears.
Next: Mr. Marriott replies.
Mr. Marriott responded. He said that SCO accuses Magistrate Judge
Wells of no fewer than 20 errors. Mr. Marriott said that Judge Wells
relied on rules 37(b)2 and 37(b)3, which state that such evidence is
"automatically excluded" unless SCO could provide convincing reasons
otherwise. IBM's Mr. Wing Chiu held up an approximately 3 ft by 5 ft chart
(he held it up on the table for the entire 45 minutes of Mr. Marriott's
talk! Arms of steel!) to which Mr. Marriott referred often. I could
not see the contents of the chart. Mr. Marriott said the undisputed
facts are that Unix, AIX, Dynix, and Linux together constitute hundreds
of versions, millions of files, and billions of lines of code. I forgot
the second undisupted fact he mentioned. The third is that SCO did not
provide a single line of System V code in any of the disputed items, nor
did they provide a single line of AIX or Dynix code.
He said that Judge Wells' order is not dispositive, that her order
does not strike, remove, or dismiss any of SCO's claims. He said that
it is not the relief requested (by IBM). He said that if SCO believed that
IBM's motion was dispositive, or that Judge Wells' could not properly
hear it, they should have said something in court, but they didn't.
Mr. Marriott quoted page 2 of Judge Wells' order, where she said,
"...what I don't want is either side to use information that has been
withheld... all evidence needs to be on the table..."
He made reference to three cases SCO cited, Ocelot, Smith, and Lister
and he tells what happened in each case and says that none of those
cases is dispositive or supportive of SCO's position.
He said that the rules are that it is automatic. "Violate order,
willfull, prejudice to IBM," that if she says that, it's automatic. Mr.
Marriott reviewed each order of Magistrate Judge Wells since 2003
quoting terms "with specificity", "respond to IBM's interrogatories",
etc. He said that SCO was required to identify with specificity with
file, line, and version of code. He read from her order of 3/3/04
"fully comply within 45 days," "SCO is to provide and identify ...
specific lines... from Unix", other orders specifying "lines of code."
Mr. Mariott said that three orders of the court and Rule 26(e) required it.
Mr. Marriott pointed out that Magistrate Judge Wells issued these
orders in 2003 and 2004 and that SCO had 10 days to object but did not
do so, and objections are therefore waived. He said SCO cannot make an end-run
around these orders now.
He said that methods and concepts are implemented in source code, and
Randall Davis, in his declaration, said it cannot be otherwise. He
pointed out that SCO's own witness uses code examples in his books to
discuss methods and concepts and that SCO's employee, Mr. Gupta,
indicated he'd need the code for methods and concepts.
Mr. Marriott contended that SCO has withheld its allegations.
He pointed out SCO's Item 98 [92?] of its Final Disclosures, where SCO
claims IBM took code from Dynix and put it in Linux by "Michael" who
purportedly is a former employee (of Sequent or IBM). That's all it
gives, an email from someone named "Michael" on the Internet who
says he worked for (Sequent or IBM) and that IBM put code in Linux.
Contrast that claim with the size of the codebase. He says that it's
worse than trying to find a needle in a haystack; the needle is nebulous.
Next: Mr. Singer responds.
Mr. Singer responded to Mr. Marriott by first quoting, as Mr. Marriott
had, Judge Wells' quote shown on page 2 of her order: "... What I don't want
is either side to use information that has been withheld in support of a
summary judgment motion or in support of their case at trial, all
evidence needs to be on the table..." He said that this order takes the
evidence SCO has put on the table and takes it off.
He said that the sanctions for sandbagging is when the party brings up
the withheld evidence, an objection is made, and it is excluded.
[Referring to IBM's example] Mr. Singer says that this is the first time
Item 92 has been brought up.
He said that IBM claims that that de novo review is not required but SCO's position is that when
you've thrown out all the evidence of a claim, you've thrown out the claim.
He said it must be a de novo review, that the order requires it.
He said the 10th Circuit requires particularized findings, that an
evidentiary hearing is required. Pertaining to IBM's assertion of SCO
waiving their rights in 2003 and 2004, he said SCO is not objecting to
the orders, but to their interpretation [cb: I'm not sure if he meant
IBM's interpretation of the orders, SCO's interpretation, or the Court's
interpretation of it's own orders]. He said there is nothing on the
record that they have information that they have not provided. SCO has
Rochkind saying they've provided everything. SCO is not withholding
anything. He said SCO's claims should be heard on their merits.
Judge Kimball asks Mr. Marriott about SCO's request for an evidentiary
hearing. Mr. Marriott replied that SCO made no request until their
reply papers and therefore it's waived. He said IBM has answered this
more fully on page 55 [of IBM-748-1]. In this Mr. Marriott says that SCO's
"Mopix" case supports IBM, not SCO.
Mr. Marriott points out that SCO's claims are intact however many
times SCO refers to their evidence as "claims", all their claims are intact.
Referring to SCO's example where they'd identified an item that
referenced IBM code that can be found at a specific address but that SCO
could not get to it because it was behind IBM's "firewall" -- Mr. Marriott
said that what's "behind the firewall" IBM provided to SCO to the extent
they could identify what SCO's talking about. They provided it. He
quoted Bates ranges for the production.
Mr. Marriott reminded the court of the expense and effort they went
through, as a result of an order of the court, to provide CMVC access to
SCO. He said IBM provided all the code ordered so SCO could provide the
code in its claims but SCO didn't do so.
When Mr. Singer responded, he said that if the code is in CMVC, then
IBM has it. [There was scattered laughter from the spectators.]
Then Judge Kimball proceeded to discuss the other issues of schedules.
And that's it. I think
it'll wind up being a de novo review and that Judge Kimball will not
hold SCO to the fire over not providing version, file, and line
information on every one of the items. I suspect he'll provide
particularized findings for each of the disputed items. Of course, like
most of us, I'm not a lawyer.
There was one point in the hearing where Mr. Singer brought up IBM's
reference that the 7th Circuit and saying that the Magistrate Judge's ruling must
smell like a week old, unrefrigerated, dead fish before overturning it.
Mr. Singer had said that that's the *7th* Circuit, but here in the 10th
Circuit the court must follow the law (particularized findings,
evidentiary hearing, etc). Refering to the "Dead Fish Rule", Judge
Kimball said something to the effect: "But you've got agree, it's a
good rule." I got the impression, as I have at the other hearing I
attended opposing an order of Judge Wells, that he's not keen to
overturn what she's already ordered. We'll see. I expect he'll rule
quickly on this one with the schedule as it now is.
Update 3:
And now Crocodile Dundee has arrived "home" and he shares his more detailed notes with us, as is, no warranty implied or otherwise, so to speak: All quotes indicate what I believe was said; in most cases it will be abbreviated, and in some cases slightly restated. Quotes should be read as my observation without personal editorial input. That which is not shown as quotes will probably reflect my personal take on what was said. (if that makes any sense). I've had to insert some clarification inside some quoted comments. [I do that like this.]
09:50:00 SCO's attorneys appear. There's quite a few people in SCO's side of the gallery, just the 2 of us on IBM's side. I'm told that some of these attorneys look new.
09:54:30 IBM's arrival must be imminent. I'm told they always turn up *exactly* 5 minutes before a hearing.
09:55:30 Sure to form, IBM turns up in force 5 minutes before the hearing. I am pointed to a dapper gentleman who is identified as David Marriott.
10:03:00 Judge Kimball rocks on in and we're off and racing!
Marriott and Singer announce that they'll be arguing. Singer says he will require quite a bit of time (Judge Kimball expresses surprise), saying there's a lot of things to cover. He gets 40 minutes then 15 minutes. Marriott says he will need 40 minutes.
Singer starts off by telling the court that SCO have been "looking forward to this argument for some time".
He says a "significant number of tecnical claims were dismissed without opportunity for their day in court". He continues by saying that this is wrong.
They see the ruling as being "predicated on SCO flaunting court orders."
"This could not be further from the truth."
"We have sought to be as forthcoming ... as possible."
"Our objections are based on the following points
[These went pretty fast and my notes look like chicken scratchings]:
"* not p..."
"* did not consider alternative sanctions" (I think)
"* not for evidentiary issues"
"* did not " (something -- I was getting behind here)
"* did not follow from each other"
"* did not rest on factual basis of flaunting orders"
Singer then went on to describe how the (information given to IBM) was prepared.
They "took things *very* seriously"
"We got substantial discovery"
something about the work done by experts
in "2005 we prepared a comprehensive list of 294 items" ... and ... "thousands of pages of exhibits" including email.
"Mark Rochkind's declaration states that"... in almost all cases" there is email (presumably disclosing something -- I didn't catch exactly what he was talking about).
"for each of the 294 items [we] did everything we could to disclose all matters"
"Version, line and file were provided when available"
"We have provided everything we have -- we're not holding back"
"IBM's 9 coordinate model is useful for argument" (although they don't agree with it -- 9 coords are V, L & F for Unix, Dynix/AIX and Linux).
"where there has been no source code disclosure the IBM Person" (in emails from IBM staff to Linux developers) "doesn't give code in the email, therefore no code to offer"
At this point SCO basically claimed that anything in Dynix or AIX was theirs
SCO contends that if an IBM person had some Dynix/AIX code in mind when writing an email to a Linux developer detailing some Method/Concept, it was not possible for SCO to tell IBM what exactly that was.
At this point I wondered what depositions were for if not for this, but SCO continues...
"IBM hasn't asked its own people!"
"so, how can SCO know?"
SCO can "say where this information impacted Linux, but they're not certain of which lines" (!!)
SCO claim to have produced:
"A Code provided"
"B Some positions"
"C express admission from IBM of disclosure from DYNIX/AIX"
"D file locations in Linux"
Point C was footnoted by the comment "presuming our contract theory holds"
something about "146 differential profile methods and concepts" moved(?) "Dynix --> linux"
"IBM has access to Linux (I presume from the context) that SCO doesn't"
I got a whispered comment from beside me that SCO was looking for more discovery.
"locking"
"hundreds of lines of code"
"experience(?) from Sequent"
"specificity and admissions, but struck out"
(following numbers are references to something)
"53 semaphores"
"not originally [?] used in linux" linux developers"
"38 Updates in memory"
"46 bug fixes"
"and about a dozen more"
SCO contend that Judge Wells erred by her "failure to make particularized findings" before "throwing things out"
second major point: "Failure to hold an evidentiary hearing"
"specifically requirested by SCO"
"IBM presents a 10 page motion"
"SCO responds"
"IBM's reply has a declaration by an expert [Davis]"
"SCO gets leave to submit Rochkind declaration"
"Since there was an evidentiary conflict between the two experts, therefore an evidentiary hearing should have taken place".
"The evidentiary hearing was required for:
"i Davis vs. Rochkind conflicting expert declarations"
"ii failure to disclose (sandbagging claim)"
"this should stop further evidence, *not* throw out the claims"
[Note here that SCO is categorising each of the items thrown out as claims]
"iii deciding if prejudicial to IBM on a point by point basis"
iv matters arising from sealed evidence that I shall not report
third point started somewhere here I think...
"If our case is without merit, why do IBM have 11 expert witnesses?" I'll admit that this sounds a bit funky to me. Singer may have said something with nuances I didn't catch.
"This ruling is dispositive"
(Judge Kimball) "Subject to de novo review?"
(Singer) "Yes, de novo review is required"
"188 claims of disclosure"
"we say breach of contract"
(I think it was here, Singer read the first part of the title of IBM's motion and stated that the name indicated it was clearly dispositive. This assertion was repeated several times.)
"Even less serious cases have had de novo review"
"even for just 1 claim"
"ref NY patent case" (sorry didn't catch the magic numbers)
"ref IBM's 'dead fish' standard"
(Judge Kimball) "An interesting standard"
(Singer) "Yes, but not the law."
"Even mixed questions of fact and law require de novo review (although limited)"
"IBM has disclosed misused material with specificity"
"Court did not include [perhaps consider??] this in the order"
"We're being sanctioned as if this were in the order"
"No express order on the basis of '9 coordinates of code'"
"No argument about the level of disclosure for methods and concepts"
"Nothing says you need to produce X, Y and Z or your claims will be dismissed"
"IBM asks for file, line & version 'where appropriate'"
"SCO is alledged to have asked for the same"
"This 'request' came in an expert statement containing our discovery request" (that seems garbled)
"The Magistrate Judge assumed that IBM provided this and that SCO would object. They didn't and we didn't"
"No evidence of willful non-compliance"
"must be willful and intentional"
"IBM must show we have evidence that we didn't provide"
"The Magistrate Judge [something about stating or drawing conclusions] no evidence of providing everything [and comments about] public statements"
(Judge Kimball) "What would be the best way to describe those public statements?" (referring to statements in 2003)
(Singer) "That we have a lot of source and tech items -- just not on these specific items." They "stand by them [their public statements]". Comments differentiating the source code issues (public statements) and the methods and concepts issues (an issue today). "The methods and concepts were not even identified until 2005". "Those statements do not support the dismissal of 188 items".
Singer then addressed the shoplifter analogy. He said it was more a case of the shoplifter being told exactly what he's stolen, but the police [SCO - ha!] not being able to identify the exact catalogue number of the item.
(I think by way of suggesting that re-including these would not delay things) "IBM should be able to quickly respond as they would have (at least partially) prepared for this in the event that the order had not been granted."
At this point he seemed to be arguing that SCO didn't want delay, but that IBM might be granted more time. But he wanted "No delay, or at most, a very short delay".
10:40 Marriot responds
He first states that "SCO has accused the Magistrate Judge of 27 errors"
"3 simple points"
"Magistrate Judge formed opinion based on 37b2 and 37b3" (although he later seems to refer to 37c a lot)
"37c: ...fails to disclose... is automatically precluded unless [mitigating factors]'
"1) SCO failed to provide file, line and version"
"2) SCO failed to show justification for failure"
"3) SCO failed to show that failure was harmless to SCO"
"The crux is that IBM is said to have misused 3 different sets of OS's, Unix SysV, Dynix, Linux"
"because of the size of these [mention of billions of lines] IBM's discovery requested specificity via version, line and file"
"In response, SCO's final disclosure failed in 187 out of 2?? cases to provide the most basic identification"
"not one of the 187 had:
"* line info for SRV"
"* line info for AIX/Dynix"
"3 out of 187 had line information for Linux"
"All failed to provide version information for Linux, and there are 500 plus versions of linux"
"This is of great consequence to this motion"
Somewhere around here (perhaps earlier) Marriott had read the full title of the motion they put to Judge Wells, asserting that it was clear it was not to remove actions, but the evidence (or non evidence) supporting them
"The Magistrate Judge's decision was non-dispositive"
"a firm and definite error is needed"
"...dead fish standard..."
"*Even if* a de novo [review is needed???] the Magistrate Judge's [decision] is proper under *any* standard of review"
"A motion is dispositive if it disposes of a cause of action"
"Magistrate Judge's decision did not dismiss, remove, or strike any of SCO's 9 clauses or 14 defenses"
"SCO is wrong in their argument because this was not done under rule 12 but under rule 37" (very loose quoting)
"If it had been dispositive, wouldn't SCO have argued it was dispositive at the hearing?" (Since Judge Wells could not address dispositive motions).
The assertion that this "affects claims is an interesting effort at relabelling. 294 items which are collections of evidence are now called actions."
Marriott quoting Magistrate Judge: "All evidence needs to be on the table"
"they are collections of evidence *NOT* causes of action"
"If they were causes of action, they would needed to have been the subject of an amended claim, but SCO's request to do so was earlier denied."
"The three cases quoted by SCO actually went the other way to that which SCO claims."
"The Magistrate Judge need not have mentioned the sanctions because they were automatic"
Marriott then goes on to show why IBM believe Version, Line, File was required. (Actually I think this was a little weak. It relies on assumptions. Those assumptions would be made by anyone with two (programing) brain cells to rub together, but maybe not by lawyers)
The orders require identification with specificity. They require SCO to respond fully and in detail as stated in IBM's interrogatories. The interrogatories request "detailed and complete".
"It can't be detailed and complete without line, version and file"
"They were specifically required to produce line and file"
"ref interrogatory #12 (and it's the same for all)."
referring to a large diagram, Marriot begins to explain the 9 coordinates.
"File and line are specifically required. For Linux verion was implied and not argued against by SCO. Derived from SRV, file and line required, also from Dynix *or* AIX"
He then argues that version is implied since without it the other information is meaningless (example of a street address that doesn't specify which street it's on, only the house number and city)
"SCO arguments with the 03 and 04 [2003 and 2004] orders should have been raised within 10 days. They're trying an end run."
"SCO argue that these requirements 'simply do not apply to methods and concepts'"
"* however some of those [187 items] are specifically about source"
"* whether code, method, or concept, specificity is still required"
Second Argument:
"SCO failed to justify its failure to provide File, Line & version"
"SCO faced the burden, not IBM"
"SCO says ambiguous[?] -- no, and waived"
"SCO says file, line, version cannot apply to methods and concepts but many are about code"
"17 port of [???] code"
"26 port of NUMA code"
"So, SCO says code not methods and concepts. They could still provide file, line and version"
(Davis on methods and concepts quoted by Marriott) "exist as they are embodied in source code" and "in the source code, it couldn't be otherwise"
Also quotes Gupta and Rochkind who seem to be in some agreement.
(quoting SCO) "SCO must read IBM's mind"
(Marriott's comment) "A frolic and descent into [lost it :-(]"
"What has IBM done?"
"allegations witheld"
"could not provide it prior to IBM telling it. Magistrate Judge threw that out, SCO didn't appeal"
"SCO failed to show it's failure was harmless"
(Marriott paraphrasing SCO) "IBM can figure it out"
Notes that one email "the Michael admission" was from "an anonymous Internet posting from a person claiming to be an ex-employee [of Sequent/IBM -- can't remember] stating [IBM doing bad things]"
11:00 Singer's reply (which will have to wait. need food...)
Update 4: And now our fourth witness, Justin Findlay, sent me his notes too: I came in about 5 minutes after 10 AM. Singer was already arguing for
SCO at the time. Both Singer and Marriott argued with some measure of
passion. Judge Kimball was calm and refreshingly colloquial. Where
possible I have tried to remain true to the words and phrasing of the
speakers so as to give a more accurate impression of the dialog only
supplying my own words where my memory is not sufficient to
reconstruct. Still, I'm afraid that the attempted reconstruction of
these furious and arcane shorthand digraphs has made me mad. (-:
Singer: There has been lots of jockeying in this case.
Kimball: That occasionally happens.
Singer: There is substantial discovery material dating from early
2005. SCO's counsel has been working diligently with their experts
and have produced 294 items--thousands of pages of supplementary
exhibits.
SCO's expert, Mr. Rochind, helped to produce very specific
documentation for each item of infringement including public email
exchanges, URLs, dates, versions were cited where available.
Tab 3 refers to the 9 coordinates of the source code: versions, files,
etc. Chapter and verse -> version, file, and line.
SCO couldn't provide more specific citations for 198 exhibits from
Unix System 5, Dynix, and AIX because they didn't have access to all
the resources within IBM they would have needed.
It is unreasonable to expect SCO to tell what lines of System
5/Dynix/AIX source code an IBM engineer had in mind when they wrote
code which was contributed to Linux. IBM needs to consult its
developers to collect this evidence.
I will comment on a handful of examples which disclose full
specificity of infringement claims.
Tab 6: The methods and concepts claims are different from literal
source code claims in that it is harder to provide specific evidence
of code copied to Linux. Mr. Rockind could not get access to the IBM
intranet to pursue evidence or discover origins of a source.
IBM has access to this information that SCO needs to more specifically
establish these claims, not SCO. SCO can't read the minds of IBM's
developers.
Tab 7: [file] locking. SCO has source code patches with coordinates.
Mr. Linsley admits he wrote this code at Sequent, yet the claim was
stricken from the case.
Tab 8: semaphores, Tim Wright. This code is not currently used in
Linux. The source code was revealed to originate from Dynix. SCO has
identified the specific files that are derived from this code
contribution, yet, as item 53, it also was struck from the case.
Tab 9: memory
Tab 10: bug fixes
SCO has over a dozen more examples of claims dismissed in its
appendix. According to 10th circuit case law, these claims were
wrongfully thrown out.
Tab 11
The claims have been dismissed without sufficient consideration.
Tab 12: Failure to hold an evidentiary hearing. The initial 10-page
motion talks about the July 2005 order. SCO disputes that they have
been sandbagging IBM. Even were SCO sandbagging, the proper
resolution is to stop the claims at trial rather than throw out the
claims. The claim should be considered on an item by item basis.
[Some discussion of spoliation.} The Linux Technology is at the heart of the case. This
affects our ability to conduct discovery.
Tab 13: Aaronhouse [sp?] case from the 10th circuit. A lesser sanction must
be considered if possible before throwing out claims. The exclusion
of these claims from the case is improper without sufficient evidence.
I would like to discuss the scope of review. IBM claims these claims
are without merit. These issues are highly technical and must be
considered with expert discovery.
This hearing is dispositional in order to limit SCO's claims.
Kimball: Subject of review.
Tab 15: 10th circuit case law. The dismissal of the claims is invalid.
188 claims from technical discovery will never have their day in
court--never see a jury.
Tab 16: No de novo review.
Tab 17.
A New York patent case whose one claim thrown out of many. The court
found that dismissed claims of potential liability must be reviewed.
A deferred review is better than no review. Stinking fish standard.
Kimball: interesting standard.
SCO's case should merit de novo review.
Tab 21: mixed questions. The law requires de novo review. SCO hasn't
violated the court's orders.
Tab 23: There is no explicit order to produce the 9 coordinates of
source code. It is not really possible to provide so much specificity
for methods and concepts.
Tab 25: IBM asks for version, file, line but qualifies with "where available".
Tab 29 Our discovery has been limited by IBM. IBM's Interrogatory
#1. There is no clear order for SCO to provide the 9 coordinates of
source code. Westinghouse case.
Tab 33: June 28 order. SCO had made numerous public statements about
the evidence it had found. The Rockind statements contains all the
evidence we have.
SCO's public statements cannot be read as [I'm really racking my mind as to his exact statement, but
failing.)]
Kimball: What is the best way to read the statements?
SCO has lots of evidence to offer. We reserve them for future
subjects of the case. There has been much public inquiry over SCO's
statements. These statements are true and may [not?] be related to
just source code.
The claims mentioned here have only been discovered as late as 2005
after SCO has had time to review the discovery provided by IBM, not
the subject matter from the 2003 public declarations. SCO has never
said "we have items of infringing source code but we won't tell".
IBM has shown prejudice in the case. SCO's provisions of items is
not, as IBM suggests, like a shoplifter being accused of shoplifting
outside the storefront without being told what he has shoplifted but
rather as if the shoplifter wasn't told the exact inventory number of
what he has stolen in the store's catalog.
The ruling dismissing SCO's 188 claims has been effected without due
deliberation. SCO expects to be able to address these items. SCO is
willing to be limited to the Rockind declaration for its claims.
IBM should be able to respond to these claims in the space of three weeks.
SCO should get a pretrial conference or evidentary hearing. This
would cause no or little delay.
Thank you, your honor.
Kimball: Thank you.
Marriott: SCO has been liberal in their accusations of the court.
They have accused Judge Wells of 27 errors.
Rules 37(b)2, (b)3
If the party fails to follow the guidelines the evidence is
automatically precluded from court unless there is substantial
justification or harmlessness.
1. SCO failed to provide version, file, and line as required by rule
26(b) and as ordered by Judge Wells
2. SCO provided no substantial demonstration of justification
3. SCO failed to show harmlessness
The crux of SCO's case involves IBM's alleged misuse of three sets of
operating systems. [Here Marriott with assistance from another lawyer
of IBM's counsel sets up a prodigious chart which Marriott, and later
Singer, refers to frequently.] The three operating systems in
question are Unix System V, Dynix, and Linux. There are hundreds of
versions, millions of files, and billions of lines of code. The size
of the universe of the evidence is indisputably enormous.
Tab 5. IBM asked in specific terms for version, file, and line
coordinates for *each* item. In SCO's final discovery they failed to
provide version, file, and line information on 187 of the 297 items.
Tab 6 illustrates SCO's failings. Not one of the 187 items provided
line information. For AIX/Dynix there is not a single line indicated
from the 187 items. For Linux only 3 out of 187 items provides line
information--none provide version information. There are over 500
version of Linux.
As regarding the standard of review, SCO argues that Judge Wells'
order is dispositive. It is clearly not. The test from the 7th
circuit is the evidence must have the stench of 5 week old dead fish.
SCO wants their evidence interpreted as claims. SCO has 9 causes of
action and 14 affirmative defences. Rules 27 and 36.
SCO accuses on page 13 that the order is plainly intended for dispositive
purposes. Rules 26, 30, and 37. Judge Wells' order is not over a
dispositive matter.
SCO interprets the 294 "items" of evidence as "claims". All evidence
was to be on the table according to the court's prior order. The time
for dispute over discovery has passed. SCO has failed to provide
version, file, and line information.
Tab 16: foldout exhibit, rule 26(c). The order required specificity.
IBM didn't make up the requirements. The court required expressly and
unequivocally that each item should have precise citations of source
code. You can't provide the file and line without providing the
version as well. That is like saying your address is at 26 without
telling the street name. SCO failed to provide version, file, and
line information for their method and concepts items.
[Marriott mentions a "second" order from March 3, 2004 and later
another July 1, 2005 order, then a 12-12-03 order.] Judge Wells
issued 03 and 04 orders asking for SCO to produce its evidence.
SCO's complaints should have been raised within 10 days of the issuance
of the orders.
SCO failed to make substantial justification for their version, file,
and line arguments. SCO owns the burden of substantiation of rule
37(c).
SCO claims the order is ambiguous about version, file, and line
information. Version, file, and line information is not available for
method and concepts items, but in SCO's own words, "code" is used to
describe methods and concepts.
Tab 18: R. Davis. Item 17 memory code from PTX and item 26, NUMA.
Professor Davis says that methods and concepts don't exist in the
ether but in the source code.
Tab 19 Davis says methods and concepts must be implied by source
code. SCO's own technical witness, Mr. Gupta, says that methods and
concepts can be found in the source. Mr. Rockind also says that
source code describes methods and concepts. SCO says they must read
IBM's mind to get the evidence they want. Marriott doesn't want to
hazard a frolic detour into irrelevance.
IBM has repeatedly requested version, file, and line information over
the years including 2 motions to compel and 3 of [another type of
motion] yet SCO had not complied.
Judge Wells asked for all evidence to be on the table. Evidence
identification implies version, file, and line information. IBM must
figure out itself what it did.
Item 92, tab 26: SCO presents as evidence an anonymous post to the
Internet from someone named Michael who claimed to have worked on
Dynix.
Tab 24: scope of code implied. Substantial: millions of files,
billions of lines of code. It is not possible for IBM to find the
needles in the haystack when the needles are undefined. There are
many additional reasons the claims lack merit. Rule 37(c) is
automatic.
Thank you.
Kimball: Thank you.
Singer: Strange that Mr. Marriott mentions the coversion of evidence
to claims. SCO wants evidence the other party has in order to look at
it.
The order dismissing many of SCO's items excludes much of SCO's
evidence. There is nothing automatic about rule 37(c).
Second point. The move for summary dismissal is improper action.
Sequent and Dynix were licensed to IBM stipulating that methods and
concepts can't be disclosed. IBM's developers are the ones who know
the version, file, and line information for methods and concepts
items. [They are the ones who know what they were thinking when they
wrote their Linux code.] We've done all that we could. We can't tell
what an IBM developer had in mind. Only Wright [and another IBM
developer cited by SCO] knew what they did. IBM has not addressed the
fact they haven't asked their developers. This is not unworkable for
IBM.
Tab 16: de novo review. There is no legal support in this circuit for
the dead fish rule. SCO can't penetrate IBM's firewall to trace down
the origins of claims. The items thrown out must be considered item
by item according to 10th circuit precedent.
Rules 37 and 26. Judge Wells dismissed basic stuff from off the table.
The 9 coordinate system was IBM derived [and not specifically required
by the court] in the July order.
Tab 27. No product, file, and line information [possible?]. The
contribution is admitted to come from Dynix.
Tab 28
Tab 12
Tab 16: AIX/Dynix. JFS, an entire filesystem.
Methods and concepts can be described without code. Many items have
come up since discovery.
Mr. Marriott's example is too abstract, not item by item
consideration. These items can only be considered after the expert
reports and discovery.
Identification of methods and concepts can happen without specific source code.
According to June 2003 Wells order the most important fact about
specificity is "where appropriate". [SCO should get an evidentiary
hearing or one or two other courses of action.] There is no precedent
for the Draconian strike of claims.
Thank you.
Kimball: [question about evidentiary hearing versus SCO's stricken claims]
Marriott: [a long string of numbers ending with the year 1971] Wells
made it abundantly clear she wanted version, file, and line
information.
Exhibit 6: no single System V lines from the 187 items--no AIX/Dynix
lines--only 3 Linux items with line information, yet they have no
version information.
Kimball: [speaking about a request for an evidentiary hearing]
Marriott: No request was made until after the reply papers. The
request was waived
[says New York patent case is not relevant somehow]
Two points:
One, SCO claims IBM developers know the coordinates. CMVC. IBM gave
this information to SCO. The minds of the developers are to be
questioned during deposition.
[a string of numbers again]
Thank you.
Kimball: Mr. Singer, this is your motion, you get the last word.
Singer: File, line, and version information wasn't stipulated exactly.
[stuff about an evidentiary hearing, the case is about limiting SCO's
claims] The [Ampex?] patent case findings ultimately fall within the
same cause of action as this copyright case.
Mr. Rockind used CMVC a great deal although CMVC doesn't say what the
IBM developers were thinking when they wrote Linux code. IBM isn't
charged with finding undefined needles in the haystack.
Last point. Item 146, Davis' declaration.
Kimball: [will take under advisement] The current trial date is
February 26. There's not a lot of time for a full scale trial.
Singer: 6 million pages, 40,000 pages of exhibits. Additional review
could be done in 1 week. Very short 2-3 page briefs relevant to
remaining issues. Hate to lose trial date.
Marriott: The last thing we need is more briefs. I don't know
realistically what we're getting into by taking on more briefs.
Kimball: How long would it take to hear arguments for the 10
remaining? How long do you want?
Marriott: That will vary by motion. There are very few facts in
dispute in the motions. Any of these motions will take 1 1/2 hours.
Singer: A reasonable amount of time.
Kimball: Two full days.
Singer: One day.
Kimball: [Which?]
Singer: Both.
Kimball: 15 hours.
Singer: [something]
Kimball: The most brilliant jurist from December 9, 10 will be
difficult to be properly prepared.
Marriott: Can't expect [it], not feasible. Trial date should slip.
Counsel should collaborate, coordinate.
Kimball: Do that. I can see that you're still talking to each other.
Talk to each other before leaving town to arrange motions before
December 8.
Singer: [inquire from Judge Kimball's office about his schedule]
Kimball: [determine how long]
Singer: [three months out, five week jury trial]
Kimball: There's always a bunch of trials. Let's plunk it down and do it.
Marriott: [not extend dates]
Kimball: December 23, 24? Should Novell be tried first? What's your
immediate reaction?
Singer: IBM case should go first.
Marriott: Novell case should come first to clean up/dispose of a lot of claims.
Kimball: [clean up is what Marriott wants, not Singer]
Marriott: [Novell has right to waive]
Singer: The issues are relevant to IBM, but not litigated in the IBM case.
Marriott: The issues belong to both cases.
Kimball: Thank you. [recess]
Singer: [40,000 pages, over 100 depositions, ask for week to respond]
Marriott: Additional week will be fine.
Kimball: 15th for replies?
Marriott: Get done a week early and be briefed by holidays.
Kimball: Thank you. [recess]
Update 5: I wrote to Crocodile to ask him some questions about what the lawyers and the judge look like. And he also gave me some information on what the evidence mainly is that SCO wants salvaged from Judge Wells' Order. In order of importance, then, first the information about the evidence: I'm not sure much has been written about the "evidence" supporting them -- it may well be sealed (I'm not sure). It's typically emails from inside IBM to Linux developers (this is paraphrasing the words of SCO) saying words to the effect of, "This is how we did it in AIX (or Dynix)". The emails (apparently) don't reference any code. These are the points where SCO says IBM should ask it's own people. But why didn't they depose them? Is it a case of the lawyers realising that the actual answers might be damaging to their case, but the allegations look pretty good? I don't quite see how you can put that back in without deposing the people that wrote the emails, and in one case at least, it's an email from an anonymous person who claims he at one time worked on Dynix, but there's no last name and no proof even that it's true. On the Internet, after all, no one knows you're a dog. And here's Crocodile's descriptions of the cast of characters: Kimball has what appears to be shortly cropped grey hair and a round face. He seems to be a person with a good sense of humour.
David Marriott is tall and has dark hair with grey through it. He has a voice that's very easy to listen to.
Singer is shorter and a little heavier. He presents well and quite powerfully; however he is sometimes limited by his material.
Oh, and the person holding up the board during his marathon talk was Choo (I believe).
The legal teams seemed on good terms with each other. They greeted each other and shook each other's hands. All very civilised.
SLC is quite a nice place.
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Authored by: Alan(UK) on Tuesday, October 24 2006 @ 03:24 PM EDT |
n/t [ Reply to This | # ]
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- Corrections - Authored by: Anonymous on Tuesday, October 24 2006 @ 03:38 PM EDT
- Corrections - Authored by: Anonymous on Tuesday, October 24 2006 @ 05:27 PM EDT
- Principle expert -> principal expert - Authored by: chiark on Tuesday, October 24 2006 @ 05:55 PM EDT
- Corrections - Authored by: Anonymous on Tuesday, October 24 2006 @ 06:01 PM EDT
- saidthis -> said this - Authored by: Anonymous on Tuesday, October 24 2006 @ 06:04 PM EDT
- That said that --> They said that? - Authored by: ankylosaurus on Tuesday, October 24 2006 @ 06:13 PM EDT
- Corrections - Authored by: Anonymous on Tuesday, October 24 2006 @ 11:38 PM EDT
- 11:15 Singer responds - Authored by: Crocodile_Dundee on Wednesday, October 25 2006 @ 12:18 AM EDT
- Corrections - Authored by: jbb on Wednesday, October 25 2006 @ 01:42 AM EDT
- Corrections - Authored by: jbb on Wednesday, October 25 2006 @ 01:46 AM EDT
- you've got agree -> you've got to agree - Authored by: attila_the_pun on Wednesday, October 25 2006 @ 07:02 AM EDT
- that that de novo -> that de novo - Authored by: attila_the_pun on Wednesday, October 25 2006 @ 07:04 AM EDT
- flaunting -> flouting - Authored by: OscarGunther on Wednesday, October 25 2006 @ 09:00 AM EDT
- poduced -> produced - Authored by: gumnos on Wednesday, October 25 2006 @ 12:34 PM EDT
- [Some discussion of spoliation.} - Authored by: gumnos on Wednesday, October 25 2006 @ 12:42 PM EDT
- coversion -> conversion? - Authored by: gumnos on Wednesday, October 25 2006 @ 12:52 PM EDT
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Authored by: Anonymous on Tuesday, October 24 2006 @ 03:24 PM EDT |
:¬) [ Reply to This | # ]
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Authored by: SpaceLifeForm on Tuesday, October 24 2006 @ 03:25 PM EDT |
Please make any links clickable.
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
|
- SGI has a new business model? - Authored by: Jude on Tuesday, October 24 2006 @ 04:37 PM EDT
- SGI has a new business model? - Authored by: PM on Tuesday, October 24 2006 @ 04:55 PM EDT
- There's more to this than meets the eye. - Authored by: Brian S. on Tuesday, October 24 2006 @ 06:22 PM EDT
- A little more background, I've just thought of - Authored by: Brian S. on Tuesday, October 24 2006 @ 06:40 PM EDT
- Charlie Demerjian on associated events - Part One - Authored by: Brian S. on Tuesday, October 24 2006 @ 06:58 PM EDT
- "ATI has gan grene " - Authored by: Brian S. on Wednesday, October 25 2006 @ 06:58 AM EDT
- "MAKER OF entertainment gear...Apple puts Intel Core 2 Duo in MacBook Pros" - Authored by: Brian S. on Wednesday, October 25 2006 @ 07:34 AM EDT
- "A New System Is Now a Waiting Game" - Authored by: Brian S. on Wednesday, October 25 2006 @ 08:13 AM EDT
- If I had to guess. - Authored by: Brian S. on Wednesday, October 25 2006 @ 09:04 AM EDT
- 2006-10-17 "NVidia bug puts Linux systems at risk" - Authored by: Brian S. on Wednesday, October 25 2006 @ 04:16 PM EDT
- Mostly FUD - Authored by: jbb on Thursday, October 26 2006 @ 11:42 AM EDT
- JULY 6TH, 2004 - NVIDIA Quadro Graphics Selected For New Line of HP Workstations.... - Authored by: Brian S. on Wednesday, October 25 2006 @ 05:16 PM EDT
- Talking about longstanding bugs. What about ATI and World of Warcraft? - Authored by: Brian S. on Wednesday, October 25 2006 @ 06:00 PM EDT
- SGI has a new business model? - Authored by: mtew on Tuesday, October 24 2006 @ 08:15 PM EDT
- PACER report - Kimball ruling in Novell - Authored by: lordshipmayhem on Tuesday, October 24 2006 @ 06:26 PM EDT
- a Hungarian saying ... - Authored by: Anonymous on Wednesday, October 25 2006 @ 12:51 AM EDT
- OT definately - Authored by: Anonymous on Wednesday, October 25 2006 @ 02:56 AM EDT
- OT Grammar question - Authored by: happiness_is on Wednesday, October 25 2006 @ 10:42 AM EDT
- Latin phrase of the day - Authored by: Crocodile_Dundee on Wednesday, October 25 2006 @ 01:31 PM EDT
- SLC is quite a nice place - Authored by: Crocodile_Dundee on Wednesday, October 25 2006 @ 02:49 PM EDT
- San Francisco is nice too :-( - Authored by: Crocodile_Dundee on Thursday, October 26 2006 @ 07:51 AM EDT
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Authored by: Anonymous on Tuesday, October 24 2006 @ 03:37 PM EDT |
IIRC the judge there said that any delay in the SCO v IBM case would mean that
Red Hat v SCO gets to go ahead.[ Reply to This | # ]
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Authored by: MplsBrian on Tuesday, October 24 2006 @ 03:40 PM EDT |
Thanks for the quick info on the hearing.
What I can't help but notice is that SCO both wants delay, but also wants Novell
to not go first. Surely, if SCO v Novell went first, SCO v IBM would be
delayed. Is that not what they want?? [ Reply to This | # ]
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Authored by: Harry Nicholls on Tuesday, October 24 2006 @ 03:40 PM EDT |
"SCO vs. Novell is all about copyrights, they say, and SCO vs. IBM is all about
contracts you see."
Surely SCO vs Novell is more about contract issues in the
motions for expedited hearing and preliminary injunction. The breaches of
fudiciary duty and conversion of funds received don't have anything to with
copyrights. And the interpretation of Novell's rights under 4.16 of the APA
would certainly impact SCO vs IBM. No wonder SCO is so desperate to get to the
trial against IBM before anything is heard on the Novell claims.
Harry
Nicholls
[ Reply to This | # ]
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Authored by: stats_for_all on Tuesday, October 24 2006 @ 03:41 PM EDT |
Today's hearing was regards SCO's attempt to roll back Judge Wells dismissal
of
many of the violations alleged in its Dec 2005 final disclosures.
A chart
"The 294
alleged violations " maintained by geezery Old
Nob is the most
complete cross reference what has been garnered of the
specifics of the
accusations.
[ Reply to This | # ]
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- Fantastic chart! - Authored by: Anonymous on Tuesday, October 24 2006 @ 04:02 PM EDT
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Authored by: Anonymous on Tuesday, October 24 2006 @ 03:41 PM EDT |
I find it interesting that the Judge is asking the parties the same questions
we've been asking, like why doesn't SCO v. Novell go first?
I'm interested to see where this goes. Also, if Judge Kimball does do a de novo
review, it could be even worse for SCO, although it may take more time. It's
also possible that he's already done that. At least this one is now fully
briefed and can move ahead.
...D[ Reply to This | # ]
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Authored by: Steve Martin on Tuesday, October 24 2006 @ 03:53 PM EDT |
They actually said it: "We want the trial as soon as
possible."
Not surprising. They're heading down the
fast track to bankruptcy, and they're betting the farm on Boies' reputation as a
courtroom litigator. The sooner they can get Boies in front of a jury, the
better their chances of survival.
--- "When I say something, I put my
name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: Nick_UK on Tuesday, October 24 2006 @ 03:58 PM EDT |
Could anybody explain to me why SCO think they could win a
trial based on what has happened?
Is it because a jury doesn't necessarily have to reflect
on facts, but rather on the way facts are presented and
what the jury feels/fancies is the best (ignoring facts,
here)?
The reason I ask is it is pretty plain obvious SCO do not
have a case at all, really, and I just don't understand it
(and law) at all.
Nick[ Reply to This | # ]
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Authored by: Steve Martin on Tuesday, October 24 2006 @ 03:59 PM EDT |
It look like the trial will be delayed, and if this occurs
there may be no openings left for a 5 week
trial.
Croc, just as a clarification, what did you
mean by "no openings left"? Does this mean Kimball indicated there might be a
problem scheduling a 5-week trial later? If so, did he indicate when such a
period might be? If this were to mean a huge delay in the IBM trial, it
might actually get both Judge Robinson and Judge Jones (AutoZone)
concerned.
--- "When I say something, I put my name next to it." --
Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: Rasyr on Tuesday, October 24 2006 @ 04:05 PM EDT |
In addition to be the two days before Christmas, these also fall on Saturday
& Sunday this year.
[ Reply to This | # ]
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Authored by: GLJason on Tuesday, October 24 2006 @ 04:08 PM EDT |
It's about discovery misconduct! SCO didn't give IBM enough information to even
determine what their claims were with regard to the items that were thrown out.
If your claims are too vague for the other side to defend themselves, they get
thrown out, right? Didn't IBM make any of the points that they made in their
initial arguments to Judge Wells?[ Reply to This | # ]
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Authored by: Steve Martin on Tuesday, October 24 2006 @ 04:12 PM EDT |
SCO contends that IBM could simply object to that at
trial.
For some reason this continues to bother me.
The SCO Group continues to say that, if they were to present something at trial
that they hadn't presented to IBM, IBM could simply object to it then. There are
two things about this that disturb me:
-
In a case of this
complexity, it would be all too easy for someone on the TSG side to try to slide
some little something in that the Nazgul might not catch in time to object to.
After all, lawyers are human too, and make mistakes. Simply put, there are so
many details involved, so many individual little pieces of information, that it
might happen.
-
The SCO Group keep claiming that IBM could simply
object to anything brought out at trial that was not brought out before. Well,
supposedly there will not be anything; that's what discovery (and in particular
the set of Final Disclosures) is for. However, TSG does not say
"we're not going to bring out anything else"; they keep saying "if we do, IBM
can object to it". If TSG truly has nothing else (as they state to the judge),
then they should not mind stating outright that they will be bringing nothing
else out. Instead, they hedge, saying that if they do, IBM can object.
IANAL, but I didn't think that was they way a trial was supposed to
work.
--- "When I say something, I put my name next to
it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
|
- oddly enough - Authored by: Anonymous on Tuesday, October 24 2006 @ 04:43 PM EDT
- oddly enough - Authored by: Anonymous on Tuesday, October 24 2006 @ 04:50 PM EDT
- Chewbacca defense - Authored by: Anonymous on Tuesday, October 24 2006 @ 05:45 PM EDT
- The rule is ... - Authored by: jbb on Tuesday, October 24 2006 @ 06:37 PM EDT
- " SCO contends that IBM could simply object to that at trial." - Authored by: Christian on Tuesday, October 24 2006 @ 04:46 PM EDT
- " SCO contends that IBM could simply object to that at trial." - Authored by: PolR on Tuesday, October 24 2006 @ 05:59 PM EDT
- " SCO contends that IBM could simply object to that at trial." - Authored by: Anonymous on Tuesday, October 24 2006 @ 06:41 PM EDT
- " SCO contends that IBM could simply object to that at trial." - Authored by: Anonymous on Tuesday, October 24 2006 @ 08:54 PM EDT
- But if they CAN object earlier, they SHOULD - Authored by: Anonymous on Tuesday, October 24 2006 @ 11:10 PM EDT
- " SCO contends that IBM could simply object to that at trial." - Authored by: Anonymous on Wednesday, October 25 2006 @ 06:22 AM EDT
- It's about confusing the jury - Authored by: GLJason on Wednesday, October 25 2006 @ 01:02 PM EDT
- What's a magistrate judge for - Authored by: tangomike on Wednesday, October 25 2006 @ 11:01 PM EDT
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Authored by: Anonymous on Tuesday, October 24 2006 @ 04:15 PM EDT |
How in the world do you start something without even having proof of the
copyrights? Surely the judge understands that the Novell should go first.
Perhaps the judge was testing Novell? She knows the Novell should go first, but
wanted to see what SCO would say. Now that she knows that SCO want Novell to be
delayed even though its obvious that it should go first. She knows their case
is weak because why wouldn't they just agree that its true?[ Reply to This | # ]
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Authored by: john82a on Tuesday, October 24 2006 @ 04:23 PM EDT |
Thanks for turning up for the hearing and sending in your reports (so desperate
for news, so weary of the re-re-heated speculation). Much appreciated, Chris
Brown, Crocodile Dundee and cxd.
john[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 04:24 PM EDT |
SCO can't win this.
If Judge Kimball does a de novo review (as SCO wants), that would be good for
Novell. It will delay the IBM schedule further and make it more clear that
there is no reason to delay the Novell case behind IBM. Novell will go first
(as both Novell and IBM wants).
Thus, if SCO wins the motion in the IBM case, they lose the trial delay in the
Novell case.
If SCO loses the motion in the IBM case, their IBM case is decimated.
It's lose-lose for SCO.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 04:42 PM EDT |
Of course SCO wants IBM to go first. If they hit the lawsuit lottery with IBM
then they have the money they need, if the court finds they owe Novell all that
Sun and Microsoft money.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 04:44 PM EDT |
For us uninitiates would someone please give a plain English explanation of a
"de novo review" and the relevence in this case.
Tufty
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 05:16 PM EDT |
I think the internet would collapse trying to cope with all reactions of disgust
on such news.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 05:41 PM EDT |
When I was reading the Wells ruling it was powerful! Now it seems it was all for
naught. Listening to SCO's argument it is somewhat logical. They cite some
reasonable rules. IBM als o has very valid points. Just seems like the Wells
ruling is lightly taken. I mean it was a ruling from a judge and SCO are
actually arguing with a judge. Seems like justice delayed is justice denied.
Why not just stick with Wells ruling? Granted the judge could find reason to go
either way. He just has to decide what he wants and then have a ruling written
up that supports it. Or does he have to get approval from other judges?[ Reply to This | # ]
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Authored by: Pugs on Tuesday, October 24 2006 @ 05:43 PM EDT |
I seem to remember that the judge in the Red Hat vs. SCO said that if there were
any more delays in the IBM or Novell cases that she would start up the Red Hat
case.
Am I remembering this correctly? If so, doesn't that still leave SCO with
multiple fronts in its cases?
Pugs
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 05:45 PM EDT |
I notice SCO harping about how they didn't willfully not disclose evidence, that
they produced all they had.
That is weasel speak, since that wasn't what Wells said (she said they willfully
did not comply with her order), even if it was all they had, it still didn't
comply with the order.
I also don't understand why IBM or Kimball either one doesn't point out the
weasel words when SCO starts complaining about "only IBM developers know
where the source is". Someone should point out that if you are presenting
something as evidence to support a claim of X, then without that location how
can you say it even relates to X? [ Reply to This | # ]
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Authored by: Steve Martin on Tuesday, October 24 2006 @ 05:45 PM EDT |
Okay, guys, mark your calendars --- Round Two is coming up.
Docket # 843:
"NOTICE OF HEARING ON MOTION re: 695 MOTION to Strike Allegations in Excess
of the Final Disclosures: Motion Hearing set for 11/15/2006 10:30 AM in Room 220
before Magistrate Judge Brooke C. Wells. (jwd, ) (Entered: 10/24/2006)"
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 05:46 PM EDT |
Or will there be enough time for it. The SCO appeal has been 2 months at least.
If IBM appealed is it possible to have another 2 month delay then hearing and
then postpone the Case?[ Reply to This | # ]
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Authored by: tiger99 on Tuesday, October 24 2006 @ 05:46 PM EDT |
Effectively it is the same old stuff again "there must be some illegal
code somewhere, but we don't know exactly where it is", or words to that effect.
The SCOundrels are merely continuing their abuse of the legal system, with no
evidence, and no prospect of ever finding any evidence, which to my mind (IANAL)
adds even more substance, if any more were needed, to theories about the real
purpose of all this, which involves spreading FUD on behalf on a third
party. I believe that SCO have no case, have never had a case, and from the
beginning new that they did not, and could never have a case. I also strongly
suspect that BSF also were aware of that, in which case, if the law permits,
there should be extremely severe sanctions. But there is one niggling doubt,
that they may have some really devious and cunning end game, which will not help
them win either the Novell or IBM cases (or RH or AZ, for that matter), but
might manage to throw a spanner in the works as far as Linux is concerned. I am
not sure yet what it might be, but I am sure now that they have come thus far in
order to fulfil some utterly despicable plan on behalf of the Puppetmaster, not
to win damages from IBM. But I don't think that they will succeed. And thank
you all for the excellent reports. I often wish that I could be there in person,
but we, all of us who can't be there in person, are kept well informed by the
much appreciated diligence of others. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 05:51 PM EDT |
The process is literally taking forever and may not end before end of decade.
Hopefully in the end, SCOX, BSF, Darl and BSF attorneys personally would be held
responsible like the Enron CFO for this fraud.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 05:53 PM EDT |
Lets see here. the hearing today took about 2 months to schedule. Next hearing
is November. seems like it will be very unrealistic to have the hearing and
motions briefed before February. Especially with the holidays. What universe is
SCO in???[ Reply to This | # ]
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Authored by: Aim Here on Tuesday, October 24 2006 @ 05:56 PM EDT |
"He said for instance that only IBM's technologist knows what lines of
Dynix code were in his mind when he wrote email to the Linux community
..."
Aha! This is the smoking gun for the 'negative nohow' claims. An IBM
technologist is now a *thought criminal* for having Dynix code *in his mind*
when talking to the Linux people who wrote the code. Genius!
This is an revolutionary idea which will take copyright law to the next level.
Can you imagine what the music industry could do with this?
Suppose a non-RIAA guitarist is strumming away, trying to knock up a tune¸ and
the bassist says 'You can't play that, those chord changes are a bit too much
like that Metallica riff'. That sentence makes it onto a tape somewhere, and at
long last, the band are caught red handed! Dirty, thieving independant musicians
who for years have been guilty of negative nohow copyright infringement for
having infringing tunes in their minds can now be caught in the act, due to the
pioneering work in this lawsuit. The technical loophole of having to show that
their work is somehow similar to Metallica's has been closed, at long last.
With SCO's precedent, Metallica will be able to sue for $billions (but only to
protect the rights of smaller musicians, mind) and the RIAA's royalty stream
will be preserved (but only to protect the rights of musicians, mind). Hooray!
Who'd think that SCO would save music?
[ Reply to This | # ]
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Authored by: Jaywalk on Tuesday, October 24 2006 @ 06:06 PM EDT |
[Singer] said for instance that only IBM's technologist knows
what lines of Dynix code were in his mind when he wrote email to the Linux
community saying, "Here's how we did it in Dynix," at there is no evidence that
IBM asked their technologist what code he was relying on. If
only IBM's technologist knows and that technologist is discussing something the
technologist did, Singer's talking only about IBM's "homegrown" code.
Singer swears up and down that SCO has no idea where in Dynix this code is
located and the SVR4 code is only a tiny fraction of what is in Dynix. The vast
majority of Dynix was developed by Sequent.If the judge says SCO does not
control the code written by Sequent, doesn't Singer's own argument guarantee
that these cases will be discarded anyway? --- ===== Murphy's Law is
recursive. ===== [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 06:09 PM EDT |
" Mr. Marriott reminded the court of the expense and effort they went
through, as a result of an order of the court, to provide CMVC access to SCO. He
said IBM provided all the code ordered so SCO could provide the code in its
claims but SCO didn't do so.
When Mr. Singer responded, he said that if the code is in CMVC, then IBM has it.
[There was scattered laughter from the spectators.]"
And of course so does SCOG.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 06:10 PM EDT |
'Judge Kimball said that with 10 motions and an hour and a half apiece, it
amounted to 15 hours and he believes people likely couldn't handle that, what
with needing to go to the restroom and all.'
What a bunch of wimps. 15 hours at strech - no problem. If you start at 8am
thats only 11pm. I personally know of single operations that have lasted longer
than that. These guys would not survive a week in med school.
Im not kidding. 15 hours is regarded as a 'short' day. if lawyers dealing with
malpractice suits had to work days like this normally the courts would be a
different place.
Im not saying this is a Good Thing. This is just tthe current - and IMHO
extremely daft - system in most of the world.
++++++++
'Mr. Singer brought up Judge Wells' analogy to a Nieman Marcus shoplifter in her
order. He said that a better analogy would be the shoplifter was told what it
was he stole but was let go because he was not told the page in the catalog
which it appears.'
Not to pick on Judge Welles but I really wish she would go easy on the
analogies. her footballing metaphor was not at all clear either. Im sure she
means well but with lawyers like this who will grad only anything its only
asking for trouble.
++++++++++
'He said SCO is not holding anything back and that Mark Rochkind testified so.
He said that the order of Judge Wells infers that SCO was willfully withholding
information from the court. He said that is not the case ...'
Never said a truer word. SCO have nothing to work with.
+++++++++
' "Here's how we did it in Dynix," that there is no evidence that IBM
asked their technologist what code he was relying on. Only IBM knows this. He
refered to a chart in the book he handed out saying that for each of the 198
items, SCO provided what they know, including Linux files. He pointed to Item
146, Differential Profiling. In that item are the scripts from Dynix and where
they came from. That those appear in Linux, and they'd identified the location
on IBM's server where the code exists but that SCO could not access it because
it was behind IBM's firewall.
He pointed out Item 53, Semaphores, where IBM's Tim Wright disclosed that these
are not currently used in Linux and they are from Dynix. SCO identified the
Linux files it appears in. SCO said that this claim was struck (by Judge Wells).
He pointed out Item 38, Checking Updates in Memory, same thing.'
This is only of interest if (1) SCO do hold the copyrights and (2) either SCO
theory of the derivative is accepted or these are found in Unix and in Linux.
Secondly there is something very disturbing in this. SCO claimed that they had
located the lines on an IBM server but that it was hidden behind a firwall. For
the record IBM provided the AIX code on a stand alone machine. Either IBM did
not provide the AIX code as they claimed (doubts++) or SCO are telling wobblers
to the court.
Im sure they could not access the code behind an IBM firewall. They didnt need
to: they had it in front of them.
Secondly how in Heavens name did they locate the code behind a firewall? Weird
firewall. 'You can locate the code behind this firewall but cannot read it.'
Does anyone here know of such a firewall? Its certainly beyond any I - with my
admittedly limited knowledge of firewalls - have heard of.
This is the sort of tech rubbish that might slip past the judge and the opposing
lawyers but stuff that a techie would smell a rat in a mile away.
Or am I the one talking rubbish here? Do firewalls with these characteristics
exist? Anyone here know?
--
MadScientist
[ Reply to This | # ]
|
- Report from Today's Hearing in SCO v. IBM - Updated - Authored by: Anonymous on Tuesday, October 24 2006 @ 06:24 PM EDT
- Firewalls. - Authored by: Jaywalk on Tuesday, October 24 2006 @ 07:06 PM EDT
- Report from Today's Hearing in SCO v. IBM - Updated - Authored by: Anonymous on Tuesday, October 24 2006 @ 07:54 PM EDT
- Report from Today's Hearing in SCO v. IBM - Updated - Authored by: W^L+ on Tuesday, October 24 2006 @ 08:49 PM EDT
- Report from Today's Hearing in SCO v. IBM - Updated - Authored by: Steve Martin on Tuesday, October 24 2006 @ 10:01 PM EDT
- News from behind the firewall - Authored by: Anonymous on Tuesday, October 24 2006 @ 11:23 PM EDT
- Report from Today's Hearing in SCO v. IBM - Updated - Authored by: Anonymous on Wednesday, October 25 2006 @ 02:52 AM EDT
- Wimps - Authored by: moz1959 on Wednesday, October 25 2006 @ 07:24 AM EDT
- The SCO Theory of Entitlement - Authored by: rsteinmetz70112 on Wednesday, October 25 2006 @ 01:22 PM EDT
- Might not be a "firewall" - Authored by: Anonymous on Wednesday, October 25 2006 @ 07:18 PM EDT
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Authored by: Anonymous on Tuesday, October 24 2006 @ 06:17 PM EDT |
There's a fascinating piece of argument in the middle of this wonderful
transcript, and I'm not sure if it's significant or not. So here it is, and
let's see if anyone can tell us if this means anything.
In the above
transcript, we have the following observation :-
"He said SCO is not
holding anything back and that Mark Rochkind testified so. He said for instance
that only IBM's technologist knows what lines of Dynix code were in his mind
when he wrote email to the Linux community saying, "Here's how we did it in
Dynix," that there is no evidence that IBM asked their technologist what code he
was relying on. Only IBM knows this. He refered to a chart in the book he
handed out saying that for each of the 198 items, SCO provided what they know,
including Linux files."
OK, so my observation this time is a
burden-of-proof thing. In this piece of the argument, The SCO Group have a piece
of evidence which consists of a mailing-list posting of an IBM programmer who
made the statement, "Here's how we did it in Dynix." and from which The
SCO Group are able to determine that said programmer must have revealed
information relating to precious Unix IP.
What I don't see here are any
joins between the dots. By what stretch of imagination - or evidence - are The
SCO Group able to prove that the programmer was referring to a piece of
TSG Intellectual Property when he made that statement???
We have
plenty of evidence from IBM that shows how AIX and Dynix were practically
re-writes of the original SVR4 codebase. We've not asked the question, but I'd
love to know what percentage of the current release of AIX remains un-edited,
original, AT&T SVR4. 5% anyone? Do I hear 5%??
Yet from this
critically revealing [yawn] email, The SCO Group instinctively know that the
programmer must have been referring to their precious code and not any of
the millions of lines of code that nobody disputes IBM has already added to AIX
for themselves. How amazingly intuitive of SCO.
So back to the case,
then. In a situation like this, what's to stop IBM from producing the programmer
as a witness and for the programmer to say, "To the best of my recollection,
when I wrote that email I was thinking of a piece of code I wrote as part of
clean-code exercise to completely replace an old an inefficient chunk of SVR4.
Because we wanted a clean replacement, I did not refer to any part of the SVR4
original code for my development work".
Of course, The SCO Group are
going to challenge this every which way they can. But surely the burden of proof
remains with them to prove otherwise. And how can they possibly challenge
that?
We've observed all along that this case was clutching at straws
that were tumbling from a house made of the same, but some of this logic looks
so flimsy I can't believe that BSF would want to go into court with
this.
I think we should petition to get John McEnroe, tennis
legend, to preside over this case :-
"You cannot be serious, Man,
you cannot be serious!!!"
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 06:37 PM EDT |
SCO's argument, at the core, is totally specious. SCO claims that, as quoted
above:
"[SCO/Singer] said that Judge Wells' order is dispositive ... He said that
each and every one of the 188 claims were a breach of contract, that issues of
law, of legal principles, require de novo review, and that there should also be
an evidentiary review."
That's bull. There is one contract claim -- namely, that IBM has breached the
ATT contract by its disclosures. A party is either in breach of contract or it's
not in breach, and there is no additional volume of damages from multiple
"contract breaches". Once breached, the non-breaching party is due the
remedies from the breach. There's no such thing as "20 counts of breach of
contract" -- it's a binary cause of action, not accumulative.
So Marriott is correct to point out that all the items stricken were individual
pieces of defective, inadequate, and therefore inadmissible EVIDENCE supporting
the one claim of breach.
Singer was actually more truthful when he admitted that "this order takes
the evidence SCO has put on the table and takes it off." That IS correct --
the order struck evidence, not claims.
Marriott was therefore correct as a matter of law when he said that Judge Wells'
order is not dispositive, that her order does not strike, remove, or dismiss any
of SCO's claims, and that all of the claims (including the claim of breach of
contract) remain in the case, and that only the items of evidence that were not
adequately alleged (so as to allow IBM to prepare a defense) were removed.
IAAL[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 07:33 PM EDT |
From the Hearing:
##
Mr. Singer brought up Judge Wells' analogy to a Nieman Marcus shoplifter in her
order. He said that a better analogy would be the shoplifter was told what it
was he stole but was let go because he was not told the page in the catalog
which it appears.
##
yes .. actually, hes right. But not in the way he thinks hes right ;) ... you
could reasonably expect a sholifter to ask the store to show that they did
indeed sell the particualar item that they were accused of stealing. Not having
the item in the shops catalogue or on display could indeed be a very good
defense.
So, yes ... I concur ... it is akin to having the case tossed out on failing to
find the items in thre catalogue ... if your accusers cant show reasonable
grounds for the accusations, then the accusations should fall.
--
Redpoint
[ Reply to This | # ]
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Authored by: Yossarian on Tuesday, October 24 2006 @ 07:37 PM EDT |
> Judge Kimball asked Mr. Singer about SCO's public
> statements [of having more evidence].
Why can't Darl just say: "What I said is not true,
and BTW I was not under oath when I said it"?
In other words, if a witness says on the stand "what I had
said before is not true, but now, when I am under oath, I
am telling the truth," can the court still use his not-
under-oath public statements to establish facts?
(In a criminal cases statements were thrown out, e.g. Miranda
v. Arizona. I don't know the case law for civil cases.)[ Reply to This | # ]
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Authored by: sk43 on Tuesday, October 24 2006 @ 08:37 PM EDT |
Once again, SCO seeks to reestablish that this suit is all about contracts, not
copyrights:
<<SCO vs. Novell is all about copyrights, they say, and SCO vs. IBM is all
about contracts you see.>>
It was Robert Silver, of course, who first told Judge Kimball [302] Sept 15,
2004:
"Our complaint ... is not about, it never was about copyright
violations."
What was it that Kevin McBride told Judge Wells in December, 2003? Oh yes ...
"And by the way, Your Honor, I will proffer to the Court that we are filing
a second amended complaint that has copyright infringement claims ..."
And what does one find in SCO's second amended complaint? Oh yes ...
"FIFTH CAUSE OF ACTION
(Copyright Infringement)"
[ Reply to This | # ]
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Authored by: Maciarc on Tuesday, October 24 2006 @ 09:13 PM EDT |
It seems like SCO doesn't want their evidence to make it to trial. Maybe they
don't.
Here's my theory: SCO wants as much as possible stricken. They
don't want it to look as though they want that, however. They want their experts
to base their testimony on flimsy evidence that gets removed from the pool of
admissible evidence.
When they get in front of the jury, they will parade
every expert they have in front of the jury and each one will 'let slip' as much
inadmissible evidence as they can. The judge will pounce on them for it and tell
the jury to disregard it. After this happens 50-100 times, the jury will
probably begin to feel that this poor, little, local company is being railroaded
by both IBM and the court, regardless of the merits of the
evidence.
That's the only way I can see them winning anything without
some lottery tickets.
--- IANAL and I don't play one on TV, this is
just an "anti-SCO Philippic." [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, October 24 2006 @ 11:30 PM EDT |
IBM's various PSJ memorandi show how all the remaining items of evidence are
insufficient. They do not address the items excluded by Magistrate Judge Wells'
ruling.
Do the PSJs get put on hold until the admissability of the excluded items of
evidence is considered?
Do the PSJs fail because they don't address any readmitted items?
Would IBM have to resubmit or ammend the PSJs and memorandi in support followed
by new opposition and rebuttal memorandi? Would they be permitted to do so (it
being past the deadline for PSJ motions)?
[ Reply to This | # ]
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Authored by: cf on Wednesday, October 25 2006 @ 12:36 AM EDT |
From Chris' summary of the hearing:
He [Singer] said that IBM claims
that that de novo review is not required but SCO's position is that when you've
thrown out all the evidence of a claim, you've thrown out the claim.
One of SCO's claims was something like breech of contract -
unpermitted disclosure of protected material. As I recall the majority of the
294 items of evidence that Wells struck were in support of that particular
claim. Is Singer conceeding here that none of the items of evidence outside
the disputed 294 support that claim? Or is he referring (when he says all
evidence thrown out) to a different claim? [ Reply to This | # ]
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Authored by: GLJason on Wednesday, October 25 2006 @ 04:15 AM EDT |
I think Judge Well's analogy is much more applicable than SCO's, but this is
more what it's like...
It's like Neimand Marcus put posters in your
neighborhood saying you were a shoplifter and ran TV ads declaring the same.
They get the court to give them discovery, where they proceed to ransack your
house. They find a letter your sister sent you two years ago thanking you for
the sweater you gave her for Christmas. They proceed to rummage through her
closet, which contains several sweaters, but none of them match any sweater they
have ever sold at Neimand Marcus. They would however like to introduce that
letter at trial as proof that you stole the sweater from Neimand
Marcus.
And maybe they even want to sue over the sweater you gave
her that you knitted yourself, because they know you once went into a Neimand
Marcus store and looked at sweaters...[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 25 2006 @ 04:43 AM EDT |
http://en.wikipedia.org/wiki/Negative_proof
Is it the case that SCO really believe that it's going to be completely
impossible for IBM to *prove* beyond doubt that they absolutely did *not* do
anything wrong.
SCO: We don't have to have proof, look .."micheal (ex-employee) said they
did it", so we know you did it and you know you did, and if you say you
didn't well go ahead and prove it.
Is that really the entire case?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 25 2006 @ 05:14 AM EDT |
> He said that IBM claims that that de novo review is not
> required but SCO's position is that when you've thrown
> out all the evidence of a claim,
> you've thrown out the claim.
Aren't you loving that bit? I can't imaging myself saying that with straight
face. Can you?
Signer's verbal attack is well known: claims were never claims, since there were
never any evidence. Court have stroked out the pile of stinking crap precisely
because it could not be "evidence". IOW, SCO had no evidence in first
place, so no claim could have been made in first place. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 25 2006 @ 05:37 AM EDT |
There's this strange argument from SCO i don't understand: when you throw out
all the evidence of a claim you throw out the claim, so the "evidence"
SCO produced must stay.
It has been SCOs problem from the beginning that their claims were baseless. Of
course this resulted in completely nebulous "evidence" because there's
nothing specific SCO can provide. SCO can't provide what isn't there. *That's*
the reason their "evidence" was thrown out, it is no evidence, it's
just too vague.
And now they argue that their nebulous "evidence" has to stay because
throwing it out would mean throwing out the claim?
That argument isn't even valid. Throwing out what SCO provided as evidence
doesn't throw out the claim. It's just so that SCOs claim is not supportted by
any evidence.
It's not IBMs fault that SCO couldn't provide evidence to support their claims,
it's SCOs fault that they made claims they can't support with proper evidence.
[ Reply to This | # ]
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Authored by: DaveJakeman on Wednesday, October 25 2006 @ 07:10 AM EDT |
SCO are saying that SCO did not fail to put their evidence on the table.
SCO are saying that SCO did not disobey Court orders for SCO to put their
evidence on the table.
SCO are saying there is no evidence that SCO disobeyed Court orders for SCO to
put their evidence on the table.
SCO are saying that SCO did not withhold evidence that SCO had from being put on
the table.
SCO are saying the evidence IBM wanted SCO to put on the table was unknown to
SCO, so could not possibly have been withheld from being put on the table.
SCO are saying IBM has no evidence that SCO had evidence that SCO did not put on
the table.
SCO are saying they spent a great deal of time and effort preparing their
evidence to put on the table.
SCO are saying SCO were not told that if their evidence constitued nothing, it
would be swept off the table.
SCO are saying they put all their evidence on the table and Wells took it off
again.
All of the above might be true, provided one realises SCO actually put an
"Evidence of Nothing" on the table and that an "Evidence of
Nothing" constitutes a something and not a nothing.
So there you are: evidence. Not "no evidence", or "no evidence
put", but an "Evidence of Nothing", put fairly and squarely in
the middle of the table. Can't you see it? It's right there, like the
Emperor's clothes.
---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.[ Reply to This | # ]
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Authored by: shiptar on Wednesday, October 25 2006 @ 09:39 AM EDT |
Was this intentional or did it just happen?
It would create a relatively awful climate for coders, as wouldn't this type of
evidence and contract breach preclude just about any coder from working on any
environment other than the one they were taught in school?
They're talking about what was in the mind of the developer, but isn't
everything said developer has done technically in their mind?
As assistant commander in chief of my local tinfoil hat brigade, that looks like
a fairly good way for MS to lock developers into their world. Legally binding
way at least.
Of course, that's if it works. But since they're likely to hold hearings about
what was in the mind of an anonymous contributor that may or may not have worked
for IBM, it doesn't seem that far fetched.
Where the heck did something like that come from? It's not like intent or
motive, is it?[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 25 2006 @ 11:26 AM EDT |
Marriott's statement that the 294 couldn't be claims because SCO had been denied
permission to amend their complaint a third time, and so couldn't add claims.
Translation: You want to call them claims? Then all 294 are gone, rather than
just the 188 that were too vague.
Priceless.
MSS2[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 25 2006 @ 12:12 PM EDT |
SCO has been dancing around that their claim is not
Copyright (despite the public statements to the contrary),
but methods and concepts that should be protected based on
the AT&T contract. However, even if their contract theory
stands (highly unlikely), the maximum they could possibly
claim is that IBM is not allowed to disclose:
Code written by IBM that is a derivative of SYSV methods
and concepts.
However, it seems clear that what they are claiming here
are methods disclosed in emails in the form: "this is how
we did it in AIX/Dynix". Now, how does this prove those
methods were present in SYSV ? All I see is some AIX M&C
being disclosed. This is no evidence of wrongdoing EVEN IF
you accept all of the crazy assumptions, like
1. M&C of SYSV are protected (which are clearly not)
2. The AT&T contract requires IBM to protect its own code
that's created as extension to SYSV (which was not the
case based on the contract texts and the intent according
to the depositions)
3. tSCOg has inherited all the rights from AT&T through a
series of acquisitions (which does not seem to be the case
according to Novel APA).
So far what I've seen is that everybody here on GL and in
the Utah court (including IBM's lawyers) are busy proving
that the above listed assumptions are false, incorrect.
However, the way I see it even if they are somehow
(magically) held up, SCO still does not have a case. Even
the wildest ladder theory cannot claim that IBM needs to
treat its own methods and concepts as they were AT&T's
just because once they resided in the same CMVC database!
Zs.Zs.
[ Reply to This | # ]
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Authored by: GLJason on Wednesday, October 25 2006 @ 02:10 PM EDT |
SCO respectfully requests, for the foregoing reasons, that the
Court employ an adverse inference against IBM and preclude IBM from contesting,
including in its expert reports, that it relied on AIX and Dynix/ptx source code
in making contributions to Linux development.
Unless SCO's
contract theory holds up (not likely), this would have no adverse effect on
IBM
With regard to SCO's 'willful' conduct... IBM is not claiming that
SCO is hiding evidence. They are claiming that the evidence isn't provided with
enough specificity for them to form a defense. IBM's interrogitories asked for
specificity and the court ordered it from SCO multiple times. The court even
told SCO in its orders that if it was unclear, they should seek guidance from
the court. IBM said after the interim disclosures that they weren't specific
enough, and that they would ask the court to preclude them if they weren't more
specific. SCO still failed to seek guidance from the court. SCO willfully
failed to meet the standards asked for by IBM and required by the court. They
willfully put together their final disclosures with the knowledge that IBM
didn't think they were good enough, and failed to seek guidance from the court
in order to slip them by.
Nonetheless, unless SCO wins on the contract
claims, these items are moot since none of them have to do with Unix System V,
they are all claims dealing with Dynix and AIX. I fail to see why the PSJ
motion on contract claims couldn't have been decided back in 2004. SCO's
request for more discovery had to do with the code, not the contract
interpretation. I guess IBM's motion did have to do with the entire claim, and
they may have been able to find something from SYSV->Dynix->Linux in IBM's
code.
I think IBM should have pushed the narrow argument of contract
interpretation forward earlier. SCO has been laboring all along under their
unsupportable interpretation of the licensing agreement IBM signed with AT&T
20 years ago. This has caused a lot of extra work for both SCO and IBM. I
guess they may have wished to let SCO do all that extra work to keep them busy,
but it caused IBM extra work too. Worse, the court is having to sort through
all these motions and evidence (or lack thereof) when it is all going to turn
out to be irrelevant. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, October 25 2006 @ 04:05 PM EDT |
All that good stuff, does the Magistrate judge read wells oder? Or does she
have to go off what IBM and SCO are saying. If a judge says its not
dispositive, the judge must have known SCO would try going that route. I think
he argued well that it was not dispositive. If I were a judge I would be way
more likely to agree with a judge than with SCO. And Wells order is full proof.[ Reply to This | # ]
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Authored by: jbb on Wednesday, October 25 2006 @ 04:07 PM EDT |
Just imagine the implications if SCO's argument (that
evidence == claims)
succeeds.
It would mean that every baseless claim (in the entire
court
system) supported only by bogus evidence would have
to go to trial.
It's
like SCO is saying:
You can't throw out our bogus evidence
because it is the
only thing propping up our baseless
claims!
--- You just can't win with DRM. [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 10:20 AM EDT |
All IBM really needs is SCO to stipulate that the disputed items are not derived
from SYSV. I would have included this as a possible alternative to overuling
the order bringing the items back in requiring IBM to rework their PSJ motion.
If SCO says they *might* derive from SYSV then no one could argue with a judge
saying it's too late for unsupported allegations. If SCO says OK, then IBM's
PSJ Warhammer remains intact.[ Reply to This | # ]
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