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First Word from the Hearing: It's IBM All the Way
Thursday, November 30 2006 @ 08:11 PM EST

I've gotten two reports from today's hearing in SCO v. IBM now, from new folks who haven't reported in the past from hearings, so I waited until there were two of them, and they both say the same thing: It went very well. Magistrate Judge Brooke Wells ruled from the bench in favor of IBM. SCO will not be allowed to, as IBM put it in its motion papers, "litigate this case by ambush."

If any of you are new, here are the motion papers that will help you know what the hearing was about today:

IBM's Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, its December 22, 2005 Disclosure of Material Allegedly Misused by IBM

SCO's opposition

IBM's reply

At issue was whether SCO would be allowed to sneak in new allegations and evidence in its experts' reports that it failed to put on the table openly in its Final Disclosures, in effect, as IBM described it, reinventing its case at the eleventh hour. The answer today was no, it won't be allowed to do that. IBM had asked for this relief: "Insofar as SCO's proposed expert reports exceed the Final Disclosures, they should be stricken." More details will be arriving in a while, but assuming the early reports are accurate, we may assume that this is what the Judge has ordered.

What is most interesting to me about all this is that one of the experts was trying to introduce the Vanilla Ice theory of copyright that Darl spoke about long ago. You can see that in one footnote in SCO's opposition memo:

Dr. Cargill's opinion is based on a well-known theory of copyright law, which provides that a collective work is entitled to copyright protection based on the selection, arrangement and coordination of elements.

I don't know how "well-known" that theory is, but I would have to conclude that it will therefore not be part of this case.

Here are the Minutes from the hearing, that Frank Sorenson just sent me from Pacer, so it's official - IBM wins the motion 100%:

11/30/2006 - 888 - Minute Entry for proceedings held before Judge Brooke C. Wells: Court heard oral arguments. Court granted 695 MOTION to Strike Allegations in Excess of the Final Disclosures filed by International Business Machines Corporation. Written Order to be prepared by Mr. Marriott. Attorney for Plaintiff: Brad Hatch, Attorney for Defendant David Marriott. Court Reporter: Becky Janke. (mlp, ) (Entered: 11/30/2006)

Well. It's *Brent* Hatch, but maybe he won't mind if we don't put that up in lights.

Here's a bit of detail from our first eyewitness:

David Marriot argued for IBM. Brent Hatch argued for SCO. The arguments generally followed the briefs lasting one and a half hours, so I won't further belabor them here. Judge Wells had no questions for David. Many challenging questions for Brent who at one point gently attempted to argue with the Judge. The Judge ruled from the bench in favor of IBM re-affirming prior courts orders that only the final disclosures will be permitted and anything not in the final disclosures (including expert reports addressing issues not in the final disclosures) will not be allowed. Brent sought clarification as to what that means (structures, methods and concepts etc.) Marriott said it was clear to him but given recent experience with SCO, he's not sure it's clear to them. Judge Wells agreed that it was clear to her but that if anyone had questions, they could simply read IBM's briefs, that she was adopting all of those arguments. IBM gets to draft the final order.

Update:

More yummy details from our second eyewitness, MSS2. -- O frabjous day! Callooh! Callay! -- and there is more coming in a bit:

Marriott and Shaughnessy were there for IBM, Hatch and Tibbitts for SCO. There were others there also, whose names I did not catch. (Wow, do people ever speak rapidly at these things!) Only Marriott spoke for IBM, only Hatch spoke for SCO.

Since it was IBM's motion, Marriott got to speak first. Wells began by asking him how Kimball's ruling yesterday affected this motion.

Marriott replied that disposition of this motion was compelled by Kimball's ruling, and by four other rulings (though, as far as I caught, he never specified which four). Stuff not specified "with specificity" was thrown out. This motion was about stuff not specified at all.

He had a "booklet" (really a notebook) which he gave a copy of to Wells, and one to SCO's attorneys. Then he began going through it.

First, the facts. SCO made "a plethora of public statements". IBM asked repeatedly for specificity. Claims require line-by-line analysis. Copyright principles require line-by-line. SCO didn't say anything with specificity, so IBM moved to compel. SCO produced "no competent evidence of infringement".

Then IBM asked for PSJs, which were delayed. Then IBM asked for a deadline for final disclosures. IBM said (in their motion asking for final disclosures), "final means final" -- no expert end runs allowed. (Digression: Marriott may have picked up on Wells' fondness for sports metaphors; he used this one several times.) SCO opposed IBM's motion, saying that the court could remove stuff that was in excess of final disclosures if/when the issue arose.

SCO's final disclosures had 292 items. Out of this, there were 326 specific lines in the kernel. (There was also stuff about breach of contract, etc.) The JFS final disclosures had only 17 lines of code (which I thought was astonishing). ELF had 121 lines; memory allocation had 24.

After the final disclosure deadline, IBM undertook discovery related to the 326 lines of code and prepared their expert reports. These expert reports had line-by-line analysis of the 326 lines specified in the final disclosures.

SCO's expert reports exceeded the final disclosures, effectively claiming every line of Linux. They added greatly to the code in the previously mentioned categories; worse, they added whole new categories which were not in the final disclosures at all: the structure of code, the structure of system calls, the file system, and streams.

And now SCO says that IBM's PSJs should fail because they don't address the new material in SCO's expert reports.

Marriott said that it was like going from an arena of 22,000 fans, where one is identified, to all the fans being implicated.

He used the 25,000 man-year argument against SCO. He said, "Now they're asking IBM to do it."

He said that the court orders said no end runs around specificity, that case law says so, and that Rule 37 says so. Again, he said that the material in SCO's expert reports was not specified -- with specificity -- when it should have been.

He said the ELF stuff covered in SCO's expert reports is based on item 171 in SCO's final disclosures, which Wells threw out, and Kimball reaffirmed yesterday, and on 273 through 275, which were abandoned by SCO as not part of the claims, and on 272, which named specific lines.

In SCO's response brief, the primary argument was that "final disclosures need not be co-extensive with the expert reports". But, Marriott said, the final disclosures are the outer perimeter of the case.

He then cited 10 reasons why this needed to be the case. The first 7 were decisions by Wells and Kimball. Then he cited Rule 26(e), Rule 37(c), and basic fairness.

He stated that SCO had a "revisionist version" of procedures and that they were sandbagging in the face of multiple court orders. He said that the question was, Is SCO bound by the court orders and by SCO's own stipulation? (He had mentioned where SCO had stipulated to part of this, though I didn't get the details.) Or can SCO ignore the court orders, and add new stuff?

Update 2 - Hatch's turn.

More from our second eyewitness:

Then Hatch spoke. He said that Marriott made SCO look worse than they were -- that he mis-stated SCO's position, and that they were therefore arguing "like ships passing in the night".

He said that SCO did in fact disclose their evidence in December, but that Marriott was co-mingling SCO's disclosures and their legal theories.

He said that the issue was whether SCO's experts could give their complete opinions.

He said that Cargill was applying 10th Circuit law -- the abstraction-filtration-comparison test specified by the Gates Rubber decision.

Wells asked, what is the forcing effect of each of the previous orders on specificity? Hatch tapdanced around the question in his answer. Wells repeated the question. Hatch did more tapdancing. The only part that I recorded was that he quoted Rule 26(e) and said that SCO followed it.

He said that Cargill isn't changing what the case is about, that IBM knew that this was part of the case clear back in 2004, that they knew then that both line-by-line copying and structure and sequence were at issue. The only thing that IBM didn't have before is the Cargill report, and that wasn't due until May 2006. (He said this with some outrage in his voice.)

He said that IBM created their own undue prejudice here. They knew this structural claim was coming, and the only way it could come was in an expert report.

IBM had a chance to ask about it when they deposed Cargill, and they chose not to. They didn't ask Rochkind either, because they wanted to create this kind of argument. They knew it didn't revolve around version, file, and line number.

About the Ivy declaration, which is about JFS, Hatch said that SCO claimed that all of JFS was misused, and that IBM said that they needed files and lines. So SCO gave some lines, but that was just to give some examples, because they had said that it was about all of JFS. Then IBM claimed that Ivy, who referred to all of JFS, was referring to more than SCO had claimed in their final disclosures. Ivy is just giving more examples.

Hatch said that Davis did a machine-based comparison, which didn't answer Ivy at all, because that's not how Ivy did it.

The Rochkind declaration, which is about testing: What IBM is disputing is not what SCO claims is misused, it's just some support material. The documentation files aren't claimed misused material either; they're just used to show that the misused material really was misused.

SCO disclosed system calls in December. SCO did disclose additional material in this area in Cargill, but as part of the "structural copyright" problem. IBM understood this -- in his expert report, Kernighan addressed this as an overall system, not on a system-call-by-system-call basis.

Wells asked why, if the issues are unclear in an order, why is it not brought back to the court?

Hatch said that he didn't believe that it was unclear, but there was an attempt to make them unclear now.

Wells asked, "But isn't there a difference between experts explaining the case, and them expanding the case? If you were required specificity, how can you expand it now?"

Hatch said that the experts put meat on the claims.

Wells said that experts shouldn't expand on what SCO couldn't get before. Hatch said, "We didn't do that."

He said that IBM knew about the structural claim in 2004.

Wells asked a question that I didn't understand.

Hatch talked about prejudice, that there was a four-part test, though he didn't list the parts. He said it would have to disrupt the trial. About the structural claim, he said, "They have been aware of it forever." He said that the 10th Circuit is clear -- if you have time to cure it, it's OK.

He said that having time to go through the code is a red herring. Cargill didn't take 21 man-years because he didn't do it that way.

He said that 10th Circuit law doesn't require version, file, and line.

He cited a ruling in Jacobsen v. somebody, that it must interfere with the trial. He said that the only thing IBM cited was an unpublished 7th Circuit decision, but that the published 7th Circuit standard is the same as the 10th Circuit. He cited Peach vs. US Trust (2005), which (if I understood him correctly) cites Woodworker.

He then said that he mis-spoke earlier, that JFS is a contract claim, that the copyright claims are the structural stuff.

Overall, I found Hatch much harder to follow than Marriott. He fumbled around a lot more. However, he still sounded persuasive - until Marriott replied.

Update 3 - Marriott responds.

More from our second eyewitness:

In his reply, Marriott first said that the court had ample authority to rule on this issue. The burden of proof on IBM was no more than it faced on the 292 items. And SCO in an earlier motion said that the court had a "complete arsenal" to deal with this exact situation.

Marriott said that Hatch claimed that IBM said, at the time of the arguments about the schedule for final disclosure, that the experts could come later. But IBM's filings at the time said the opposite of what Hatch was trying to make them say. Marriott quoted from them at length.

He said, "Expert discovery is not the time to identify". SCO should have disclosed the particulars; "structure" doesn't tell IBM any particulars. IBM needed to know what SCO's theory of the case was.

Request 13 of IBM's interrogatories said, "Describe in detail how IBM misused the material."

Marriott said that the court had asked why SCO's position doesn't gut the court orders, and the court got "a non-answer".

He said that Hatch talked about "non-literal infringement" as if no specificity is required. The court has rejected this view. SCO's argument is that the more vague the claim, the less detail they have to give. In reality, the more vague or abstract the claim, the more detail that is required. SCO's claims are like the use of a word to tell us that the whole English language is claimed.

He said that Hatch says that IBM should do their expert reports like Cargill, but Cargill is vague, filled with generality. IBM wants the particulars.

He said that saying "structure" is like saying "contract infringement". (Meaning that it doesn't tell you any particulars.)

He said that the prejudice was self-evident -- worse than in yesterday's ruling. SCO says that IBM has time because the trial date slipped. It's not enough time for a proper defense.

About JFS, he said that the final disclosures said "for example" and now SCO tries to say that it means any part of JFS.

SCO says that it is not alleging certain things in the expert reports as issues. IBM asked SCO to stipulate that, and SCO refused.

[I thought that this was a brilliant reply to SCO's position -- that specificity was needed on all the claims, not just the file-and-line ones. And, in fact, this is what has been frustrating us (and presumably IBM) from the beginning -- the vague, unspecific nature of SCO's claims. So IBM's position was that the December deadline was for specificity in everything, that it was put-up-or-shut-up time. And SCO didn't put up much of anything.]

Update - Hatch again. MSS2 sends in now his final report, and didn't he do a simply fabulous job? A round of applause for our reporters of the day, please.

Hatch said that JFS was claimed from the beginning (all of it), and then IBM asked for specificity.

He said that Gates Rubber gave a copyright test that doesn't require line-by-line, so IBM's claim of prejudice is wrong.

Wells asked, "Didn't Kimball already decide that there was prejudice to IBM?" Hatch said that the decision wasn't on this topic.

He said that IBM was trying to exclude Cargill, that IBM is saying that it is "rife with generality", when IBM really should be attacking it with another expert.

He said that Marriott said that "the prejudice to IBM was self-evident", which is the same as saying that Marriott didn't want to talk about it. If there is any real prejudice to IBM, they should handle it by re-deposing Cargill.

Wells cited the July 1, 2005 order, the June 28, 2006 order, and Kimball's ruling of yesterday, and said that SCO may not claim material that was not specified in the Final Disclosures.

Hatch then asked what exactly was regarded as being specified in the final disclosures. [Boy, they just don't learn, do they? Either SCO wants to pretend that things still aren't clear, or they are going to try to push this line yet again.]

Wells basically said, what was in the Final Disclosures, and asked if that was plain.

Marriott said that it was plain as day, but "my friends at SCO" might/would/did take the position that everything was disclosed. [I think he meant that SCO took the position that they had disclosed all of JFS, all of Linux...]

Wells said that Marriott would draft the order, that she adopted IBM's reasoning, and told SCO that they could take it up with Judge Kimball.

[I got the chance to shake Mr. Shaughnessy's hand on the way out and to thank him for IBM's stand on an issue that we cared deeply about.]

And so, there you have it. The "take it up with Judge Kimball" remark is referring to his order of yesterday, where he said that if either party wished to appeal Judge Wells' order on this hearing, he'd look at it de novo. So, will they or won't they?

: )


  


First Word from the Hearing: It's IBM All the Way | 635 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
DARLBERT discusses the success of court rulings. Keyboard Alert !!! -
Authored by: SirHumphrey on Thursday, November 30 2006 @ 08:38 PM EST
Link here

[ Reply to This | # ]

Off Topic if you dare...
Authored by: webster on Thursday, November 30 2006 @ 08:42 PM EST
.
...here

---
webster

[ Reply to This | # ]

Corrections Hear...
Authored by: nealywilly on Thursday, November 30 2006 @ 08:52 PM EST
(if any)

nealywilly

[ Reply to This | # ]

So, were all these allegations in excess of final disclosure..
Authored by: david_koontz on Thursday, November 30 2006 @ 09:00 PM EST
An attempt to get something in front of a jury?

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: Steve Martin on Thursday, November 30 2006 @ 09:03 PM EST
Wow. Wendesday Kimball upheld the gutting of the case, and Thursday Wells won't
let TSG do an end run around that gutting.

Brent Hatch is having a horrible week.

:)


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

[ Reply to This | # ]

SCOX stock took a major hit today
Authored by: thombone on Thursday, November 30 2006 @ 09:04 PM EST
Oh wow!

After yesterday, and now this, today... SCO must be feeling it!

The stock took a major hit: Down 0.40 (16.67%), today alone.

I wonder what will happen tomorrow to the stock?

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: Anonymous on Thursday, November 30 2006 @ 09:08 PM EST
One, two! One, two! And through and through
  The vorpal blade went snicker-snack!
He left it dead, and with its head
    He went galumphing back.

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

She actually ruled from the bench—it was too much to hope for—I love it! The tide has turned and Darl's forgot his swimmies.

Frabjous day indeed.

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: Anonymous on Thursday, November 30 2006 @ 09:09 PM EST
PJ,

You did not say who the new court reporters were. Mine, and I assume all
groklaw readers appreciate these individuals taking up the mantle.

Thank you for taking the time to attend the hearing and making the
report.

There probably isn't enough money to pay the volunteers who have attended
all these hearings and reported for us.

[ Reply to This | # ]

If John Belishi were alive...
Authored by: thombone on Thursday, November 30 2006 @ 09:09 PM EST
What would he be saying?

Evidence of infringement which does not provide adequate specificity, and is not
filed even remotely timely, DEAD!

Expert opinion, filed after the final disclosures, which exceed those
disclosures or attempt to rewrite the entire case (even when SCO was warned not
to try that, more than once), DEAD!

Millions of lines of infringing code, DEAD!
(there's only 326 lines left in the case and even that is questionable)

Trying to undermine Brook Wells' oversight of discovery, to her face, DEAD!

Perry Mason 11:59 PM Moment, DEAD!

Niedermeier, DEAD!

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: mrcreosote on Thursday, November 30 2006 @ 09:10 PM EST
Seems like Christmas is coming early this year....

---
----------
mrcreosote

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: Anonymous on Thursday, November 30 2006 @ 09:18 PM EST
"and on 273 through 275, which were abandoned by SCO as not part of the
claims"

What? Did I miss something? SCO dropped 3 items of evidence on their own?

BSF is dropping the completely hopeless stuff on their won to save money, now
that every moment of work comes out of their profit margin?

Mike S.

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: mashmorgan on Thursday, November 30 2006 @ 09:21 PM EST
So if SCO drop the case do IBM get all their legal fees paid ?

If not then it sucks to high heaven.

[ Reply to This | # ]

I love this part
Authored by: Anonymous on Thursday, November 30 2006 @ 09:32 PM EST
"Marriott said it was clear to him but given recent experience with SCO,
he's not sure it's clear to them. Judge Wells agreed that it was clear to her
but that if anyone had questions, they could simply read IBM's briefs, that she
was adopting all of those arguments. IBM gets to draft the final order."

Absolutely beautiful. If you(SCO) have any questions, read IBM's briefs.

J

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: ExcludedMiddle on Thursday, November 30 2006 @ 09:38 PM EST
I feel like Hanukkah has come early! I wonder what news tomorrow will bring?
There should be 6 more days of this.

This was bad timing for SCO. I'd lay money down that Wells would never have
ruled from the bench if the Kimball order hadn't just come through. Then again,
it would probably not have come out any different--just later. This ruling was a
real no-brainer, even if Kimball had overturned Wells, and added back any of the
items that were removed. The court ordered that the final disclosures came out
on Dec 22, so asking that the expert reports not go beyond those disclosures is
a motion that it's hard to imagine would be denied.

Too bad we probably have to wait quite a while for any more significant action
in this case. I suppose in the meantime, we can wait for the final briefs in the
PSJs.

[ Reply to This | # ]

sanctions against SCO's attorneys?
Authored by: mcinsand on Thursday, November 30 2006 @ 09:39 PM EST
From what I am reading, SCO got no measure, but they have yet to respect the
procedures of the court. Do judges start sanctioning attorneys at some point
after continued behavior like this? The boundary conditions as I see them are:


extreme 1) this is yet another in a series of honest mistakes from an honestly
incompetent attorney, in which case *someone* needs a wake-up call.

extreme 2) the outfit is as sleazy as it seems to be, and its delaying tactics
demand punishment for wasting other parties' (judge and IBM) time and legal
fees.

[ Reply to This | # ]

Profound thanks, and "many eyes make all bugs shallow"
Authored by: arch_dude on Thursday, November 30 2006 @ 09:39 PM EST
Thanks to our two new reporters. Those reports are really good for
first-timers.

More importantly, this is a really wonderful example of the resiliency of an
ad-hoc system. Our "regular" reporters, each fo whom have a >99%
reliablity, were not able to attend. But we as a community have a bunch of
"unreliable" reporters. Two of them, each with an a priori reliabilty
of (say) 90%, provide PJ with reports. We, the Groklaw community, get a report
that we can treat with 99% probability of being valid. All without paying
anyone.

My personal "Bayesian prior" for the reliablity of each of our
reporters is a lot higher than 90%, so my confidence on the consolidated result
approaches my confidence that the sun will rise tomorrow.

This level of scrutiny renders the Fudmiesters irrelevant. However there are
still decisionmakers who are not attuned to this new reality. You can either
wait for them to retire (in the nto too distant future) or you can attempt to
educate them.

[ Reply to This | # ]

326 specific lines
Authored by: Yossarian on Thursday, November 30 2006 @ 09:57 PM EST
>326 specific lines in the kernel.
>ELF had 121 lines;
>memory allocation had 24.

Is this a joke, or what?

To put it differently, how long will it take Linus,
assuming working alone, to rewrite 326+24 lines?
How many of us will test such a fix ASAP?

(I doubt if ELF can be fixed; if the standard says a
specific format then you have to use that format.
But SCO's ELF claims are *VERY* weak.)

[ Reply to This | # ]

Will they or won't they?
Authored by: Anonymous on Thursday, November 30 2006 @ 10:18 PM EST
Oh, yeah, they will.

I read Hatch's final comment as saying that they are going to act like they
specified everything in discovery, and therefore that everything is part of the
case. And that fits the pattern of everything we've seen so far. Proof is for
other people, and so is specificity. The world owes SCO, for reasons that SCO
can't be troubled to make completely clear.

And if Kimball rules against SCO on this one, they're going to do their best to
ignore that ruling too.

Just my opinion, but that's the way I see them heading.

MSS2

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: jiri on Thursday, November 30 2006 @ 10:25 PM EST
it was put-up-or-shut-up time. And SCO didn't put up much of anything.

They don't seem to have shut up, either...


Jiri

---
Please e-mail me if you reply, I usually read with "No comments".
jiri@baum.com.au

[ Reply to This | # ]

Novell -v- IBM - is that possible?
Authored by: lannet on Thursday, November 30 2006 @ 10:37 PM EST
Sorry for the duplicate post - I should have logged in.

Now that SCO -v- Novell gets to go before SCO -v- IBM, what will be the
situation if Novell's defence that they own the copyrights to Unix gets upheld.

Is there a risk that Novell might be tempted to go after IBM for exactly the
same reasons that SCO tried on, and given Novell's new cozying up with M$,
won't
there be pressure from that source, and money, for them to do just that.

...or have I missed something.

---
When you want a computer system that works, just choose Linux.
When you want a computer system that works, just, choose Microsoft.

[ Reply to This | # ]

There's invisible ink on the two rulings...
Authored by: Reven on Thursday, November 30 2006 @ 10:42 PM EST
You can take it up with Judge Kimball - oh, I love that. Combine that with what Judge Kimball said yesterday, and you get a clear picture. Remember when we were told that the judges were managing this case? This is what was meant by that.

YOu see, there's de novo, and there's de novo. Was yesterday's ruling really reached by a real de novo review? I don't think so. Some people have suggested that was said to avoid an appeal (on whether it should have been de novo). That may be part of it, but mostly I think the whole de novo wording was a message to SCO.

First he says he reviewed the decision de novo when he really didn't think he had to. The footnote on his order then becomes a hidden message to SCO. He said that, out of "an abundance of caution", he would continue to review all Juge Wells' decisions de novo. But SCO lost that motion - badly. Put that together with the other footnote where he said Judge Wells was the one with all the experience with SCO.

You see, Judge Kimball can't come out and say, "I'm going to support all the magistrate's rulings". So he put the message in code. In a motion where SCO loses, he tells them he'll continue to review any further appeals in the same way he reviewed this one. Now see the hidden message? Judge Wells just confirms the message with her pointed "[go ahead and] take it up with Judge Kimball". The unsaid part of that comment was, "and you'll get the same response".

Advice to SCO, you think it was an accident that Kimball ruled yesterday? Take the paper with yesterday's ruling and pour today's words from Judge Wells over it. That will develop the invisible ink, guaranteed.

---
Ex Turbo Modestum

[ Reply to This | # ]

Good news for SCO...
Authored by: Anonymous on Thursday, November 30 2006 @ 10:51 PM EST
...because bad news makes the stock go up everytime!

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: kurtwall on Thursday, November 30 2006 @ 11:28 PM EST
O happy day! Make that, "O happy two days in a row!" What a wonderful pleasure it is to see SCO get slam-dunked twice. SCO and BSF have played fast and loose with the truth for three years — I take great delight, perhaps even sinfully wicked delight, in seeing SCO and BSF get their due. "Yes, Virginia, there is is a Santa Claus. He sits on the bench in Utah."

[ Reply to This | # ]

Anyone giving odds on SCO going for an interlocutory appeal of Kimball's ruling?
Authored by: dwandre on Thursday, November 30 2006 @ 11:44 PM EST
Even though Wikepedia's discription of the Supreme Court's ruling makes the chance of a court actually agreeing to hear it pretty slim. Still, this case is all about delay not facts so the tactic has probably been bandied about at BSF, don't you think?

[ Reply to This | # ]

And the next claim will be:
Authored by: Anonymous on Thursday, November 30 2006 @ 11:53 PM EST
OOP is owned by SCOx. If you use the interface and the results are the same, then the implementation MUST be the same.

The Rochkind declaration, which is about testing: What IBM is disputing is not what SCO claims is misused, it's just some support material. The documentation files aren't claimed misused material either; they're just used to show that the misused material really was misused.


Geesh! But then I could be wrong.

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NOTE: Protecting the selection and arrangement of elements
Authored by: TennSeven on Friday, December 01 2006 @ 12:33 AM EST
This is actually a very well known theory of copyright. An example: One cannot
copyright factual data, but if one takes the factual data and arranges them in a
novel enough way as to satisfy the "originality" requirement of
copyright law, then that "author" can have a copyright over the
selection and arrangement of the factual data. The data itself is not protected
(anyone can put the same data in his own work), but that particular selection
and way of arranging it is protected.

The copyright will normally be a "thin" copyright, meaning that for
someone to be infringing he or she must have produced something nearly identical
to whatever is protected. The data does not have to be factual data. A
compilation of classical music now in the public domain is an example of
something that might also be protected. This avenue is often used to try to
protect computer databases where one entity has gone through a lot of trouble to
collect a bunch of data and arrange it in a computer database, and someone else
comes along and just copies it all.

Courts have held that things like the white pages (and in many cases the yellow
pages) do not have sufficient originality to qualify for a compilation
copyright.

In my opinion compilation and similar "data arrangement" copyrights
are not a very good way to protect data (one reason is that you're attempting to
protect "sweat of the brow" work through copyright, which is an idea
that was rejected long ago). I feel that works of this type are better
protected through tort law under the "unfair business practices"
doctrine.

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SCO's case(s) are all about...
Authored by: Anonymous on Friday, December 01 2006 @ 01:00 AM EST
SCO's cases are all about the APPEALS.

While there seems to be no doubt about SCO's fates in SCO vs. IBM & SCO vs.
Novell - We should not forget that the primary aim of these court charades is to
sow FUD into the hearts/minds of the masses.

SCO/Boise, Schiller & Flexner are laying the groundwork for a looong
drawn-out appeals process... They don't care if they lose the 1st round!

[ Reply to This | # ]

Nom de plume du jour?
Authored by: blang on Friday, December 01 2006 @ 01:15 AM EST
"MSS2. O frabjous day! Callooh! Callay!"

One does not envy MSS2. O frabjous day! Callooh! Callay! when she has to enter
her username. I shudder to think of the poor soul's password...

Maybe she is a distant relative of Adolph Blaine Charles David Earl Frederick
Gerald Hubert Irvin John Kenneth Lloyd Martin Nero Oliver Paul Quincy Randolph
Sherman Thomas Uncas Victor William Xerxes Yancy
Wolfeschlegelsteinhausenbergerdorff, Senior

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First Word from the Hearing: It's IBM All the Way
Authored by: Anonymous on Friday, December 01 2006 @ 01:16 AM EST
In the summaries of the hearings, the reporters said Judge Wells "adopted
IBM's reasoning." Is it a common thing for a judge to adopt the reasoning,
of one side or the other, in its entirity?

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Shooting from the Hip
Authored by: webster on Friday, December 01 2006 @ 01:23 AM EST
.

.....How did this snappy ruling from the bench come to pass?.....

1. Thanks to the reporters. One got word out at 8:12 EST, a comment on the
board. Another day of good news. One should of course wait to see the
transcript for accuracy, but why change now. The reporters captured a lot.

2. The long disclosure battles culminated in discovery and scheduling orders
dictating the specific and final presentation of misused materiel on December
22, 2005. Everyone pretended to know what that meant. SCO dutifully complied
with a surprisingly sparse itemization of code.

3. IBM objected to most of it because it still wasn't specific enough to defend
against. Wells went through it all and wrote an exhaustive order striking most
of it. Kimball upheld, adopted, and affirmed that order yesterday, both de
novo, de oldo and de minimis. That was about specificity. SCO's idea of
specificity did not match the court's. Worse they never bothered to ask the
Court and clarify.

4. Today's hearing was about SCO's other problem with the orders --finality.
They just have such a problem with meaning. IBM tells Judge Wells that there is
more material disclosed after the final deadline, --which isn't specific either,
by the way,-- that should be stricken. The Court doesn't want to have to go
over even more material, including all of Linux and JFS that was added in the
expert reports after the deadline. She thought she was done reviewing for
specificity. Finality is an easier concept and quite handy today.

5. She is up to snuff and can now hit the ground running. They were going to
think and talk in English and SCO wasn't going to change that. SCO earnestly
played the hand that was dealt them, late and short. It's like they earnestly
tried to argue the value of a Kangaroo straight in Vegas. They were shown the
door.

6. At the end SCO scraps for meaning and she dismisses them with a referral to
IBM's briefs. They really are toast. The transcript may be brutal. Hell hath
no fury like a judge's scorn. {SCOrn?}. Let us hope SCO's mojo is nowhere near
its credibility.

---
webster

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GOOD ON YOU!
Authored by: blang on Friday, December 01 2006 @ 02:36 AM EST
[I got the chance to shake Mr. Shaughnessy's hand on the way out and to thank
him for IBM's stand on an issue that we cared deeply about.]

I bet it is not frequent that corporate lawyers of the nazgul persuation get to
bask in the admiration of the general public.

[ Reply to This | # ]

This is what happens when you lose your credibility in court
Authored by: DaveJakeman on Friday, December 01 2006 @ 04:54 AM EST
You find you are swimming against the current and the current is going just a
little faster than you can swim.

Whilst there may be plenty of spectators, no-one feels like pitching you a life
ring.

---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.

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Collective works
Authored by: elderlycynic on Friday, December 01 2006 @ 06:23 AM EST
"Dr. Cargill's opinion is based on a well-known theory of copyright law,
which provides that a collective work is entitled to copyright
protection based on the selection, arrangement and coordination of
elements.

I don't know how "well-known" that theory is, but I would have to
conclude that it will therefore not be part of this case."

Eh? It is so well-known that even I know it! You will see it referred
to in almost every new anthology of pre-20th century prose or verse.
There is no way that Kimball will exclude it. However, SCO would have
to show WITH SPECIFICITY that IBM had copied its selection, arrangement
or coordination. Oh, and that would have to have been in the Final
Disclosures or earlier ....

Do you remember seeing any such specific claim? I don't, but I didn't
read all of them.

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Its the end of the internet I tell you!
Authored by: MadTom1999 on Friday, December 01 2006 @ 07:45 AM EST
There was an article entitled 'RIAA tries to shut down the Internet' in the
Enquirer or the Reg yesterday which seems to have had its title changed. I
thought it summed up some big business' attitude perfectly: The markets changed
and we will be the losers so lets close down the market.
Now if lawyers can't make money out of frivilous cases as the internet can
provide the truth to have them defeated then the lawyers will have the internet
closed down. Wee cant have the hoi-poloi being able to defend themselves!
Mark my words and watch closely - I'm old enough to enjoy my paranoia!

[ Reply to This | # ]

Oh, It's Not About Documentation?
Authored by: Steve Martin on Friday, December 01 2006 @ 08:30 AM EST

The documentation files aren't claimed misused material either; they're just used to show that the misused material really was misused.

Excuse Me??

"113. IBM has violated §2.01 of the Software Agreement by, inter alia, using and assisting others to use the Software Products (including System V source code, derivative works, documentation rrelated thereto and methods based thereon) for external purposes that are different from, and broader than, IBM’s own internal business purposes."
(TSG's Second Amended Complaint, ¶ 113, emphasis added)

"116. IBM has breached §2.05 of the Software Agreement by, inter alia, actively promoting and allowing use of the Software Products, documentation and development methods related thereto in an open and hostile attempt to destroy the entire economic value of the Software Products and plaintiff’s rights to protect the proprietary nature of the Software Products."
(Id., ¶ 116, emphasis added)

"118. IBM has breached §7.10 of the Software Agreement by, inter alia, transferring portions of the Software Product (including System V source code, documentation, modifications, derivative works and methods based thereon), including but not limited to the AIX Journaling File System and all other UNIX-based source code publicly announced by IBM, to Linus Torvalds for open distribution to the general public under a software license that destroys the proprietary and confidential nature of the Software Products."
(Id., ¶ 118, emphasis added)

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

[ Reply to This | # ]

AP: SCO Losing Case over Linux Code
Authored by: lordshipmayhem on Friday, December 01 2006 @ 09:52 AM EST
From Yahoo News, <a href
="http://biz.yahoo.com/ap/061130/linux_suit.html?.v=1">here</a&g
t;

I'm glad the Associated Press knows what SCOX is suing about. SCOX itself
apparently isn't so certain, as they keep changing and changing and changing
their demented little minds.

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"Judge Wells had no questions for David"
Authored by: TB on Friday, December 01 2006 @ 10:15 AM EST

Many challenging questions for Brent ...

Oh, I just love this!

First, many thanks to the reporters, who deserve much gratitude.

Second, we scarcely need to read beyond this to get the gist of the whole hearing. These two sentences sum up so much, not just in this hearing but in the whole case. Eventually, if you have a case, like IBM does, you can simply brief and argue with the facts, there's no ambiguity. If, like SCO, you need to squirm and weasel your way through briefs and hearings, what might that say about your case?

It couldn't be any more succinct if you tried.

[ Reply to This | # ]

SCOX at $1.54... and falling
Authored by: mcinsand on Friday, December 01 2006 @ 10:32 AM EST
subject says it all

[ Reply to This | # ]

Law firms reputations?
Authored by: Anonymous on Friday, December 01 2006 @ 11:07 AM EST
In following this, I found myself thinking ..." Wow if I ever had any
problems in this area, I would DEFINITELY try to hire Marriot and Co."
Are BSF at all concerned about what representing SCOX has done to their
reputation?


[ Reply to This | # ]

Forbs and AP commnet
Authored by: Jamis on Friday, December 01 2006 @ 11:15 AM EST
It looks like Mr. Lyons has changed his tune and quotes PJ.

[ Reply to This | # ]

Many thanks to the reporters
Authored by: Anonymous on Friday, December 01 2006 @ 11:15 AM EST
I almost felt like I was there. Fantastic job everyone. I have been quietly
following this case for years, including reading Groklaw, and I do appreciate
all the efforts put forth by this group (Groklaw et al).

[ Reply to This | # ]

326 = Millions and Lanham Act
Authored by: mwexler on Friday, December 01 2006 @ 12:24 PM EST
When it comes to IBM's counterclaims. Will SCO be limited to the 326 lines in
their disclosure when they are asked to show the millions of lines of infringing
code they claimed IBM stole? If so, it seems like that will be a slam dunk.
Is there anyway they might be able to say "but in our minds, we thought JFS
was infringing, so therefore we weren't intentionally lieing, we just made a
mistake?"

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Big Black Marker
Authored by: overshoot on Friday, December 01 2006 @ 12:30 PM EST
Do I read this correctly as effectively handing IBM a big black marker and a license to redact SCOX' expert reports almost at will?

I'd appreciate some comments from the more knowlegable on the actual process that will be used to winnow out the inadmissable material prior to presentation to the jury. Or will it be up to SCOX' attorneys to filter all of the now-excluded material themselves at trial?

Given their track record, I can see how the trial could get to be very, very long what with SCOX starting to present one of the exlcuded items, IBM objecting, Court sustaining, SCOX trying again, IBM ...

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Settlement
Authored by: vadim on Friday, December 01 2006 @ 01:04 PM EST
I think the best thing that could happen now if IBM proposed following or
similar terms of settlement for SCO

1) The SCO and their Lawyers as company and personally issue public apology to
IBM and Linux community

2) IBM recover expenses wichh should be covered by SCO, personally by SCO
Management and Boies & Shiller LLP
The recovered amount should be fixed in such a way so that SCO as a company
stays alive


3) Current SCO management leaves


In this way SCO managament will be obliged to accept the terms or face risks of
shareholders lawsuit


[ Reply to This | # ]

When was the last time either of these judges ruled from the bench?..
Authored by: bobn on Friday, December 01 2006 @ 01:08 PM EST
... that is without taking it under advisement?

I, too, owe apologies to the Hon. Welles and Kimball.

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by,
either GrokLaw.net or PJ.

[ Reply to This | # ]

Some observations:
Authored by: SilverWave on Friday, December 01 2006 @ 02:44 PM EST
SCO's final disclosures: ITEMS -> 292

Breakdown in LINES OF CODE(LOC): 326 specific lines in the kernel.
17 LOC-> JFS (final disclosures had only 17 lines of code)
121 LOC-> ELF 121 lines(Looks like this lot has gotten thrown out see below
for details).
24 LOC-> memory allocation 24 lines

Hmm... does that mean there are 164 other LOC not noted?

NOTE: "He said the ELF stuff covered in SCO's expert reports is based on
item 171 in SCO's final disclosures, which Wells threw out, and Kimball
reaffirmed yesterday, and on 273 through 275, which were abandoned by SCO as not
part of the claims, and on 272, which named specific lines."

Bottom line SCO is The black Knight character in "Monty Python and the Holy
Grail"

:-)

IBM is cutting off arms and the nutter is still denying reality...

lol

---

Here the scene:

Arthur cuts off the Black Knight's left arm.

Arthur: Now stand aside, worthy adversary.
Black Knight: 'Tis but a scratch.
Arthur: A scratch? Your arm's off!
Black Knight: No, it isn't.
Arthur: Well, what's that then?
Black Knight: I've had worse.
Arthur: You liar!
Black Knight: Come on you pansy!

Arthur cuts off the Black Knight's right arm.


Arthur: Victory is mine! We thank thee Lord, that in thy mercy...

Black Knight: Come on then.
Arthur: What?
Black Knight: Have at you!
Arthur: You are indeed brave, Sir Knight, but the fight is mine.
Black Knight: Oh, had enough, eh?
Arthur: Look, you stupid 000000000, you've got no arms left.
Black Knight: Yes I have.
Arthur: Look!
Black Knight: Just a flesh wound.
Arthur: Look, stop that.
Black Knight: Chicken! Chicken!
Arthur: Look, I'll have your leg. Right!

Arthur cuts off the Black Knight's leg.


Black Knight: Right, I'll do you for that!
Arthur: You'll what?
Black Knight: Come 'ere!
Arthur: What are you going to do, bleed on me?
Black Knight: I'm invincible!
Arthur: You're a loony.
Black Knight: The Black Knight always triumphs! Have at you! Come on then.

Arthur cuts off the Black Knight's other leg.


Black Knight: All right; we'll call it a draw.
Arthur: Come, Patsy.
Black Knight: Oh, oh, I see, running away then. You yellow 00000000! Come back
here and take what's coming to you. I'll bite your legs off!

---
GPLv3 *OR LATER* has been vindicated
The "OR LATER" is vital
A GPL set in stone will be eroded over time. -SilverWave

[ Reply to This | # ]

First Word from the Hearing: It's IBM All the Way
Authored by: Anonymous on Friday, December 01 2006 @ 04:12 PM EST
Two fun points for today


1) SCO Investor relations has the BEST graph showing their 48% selloff today.
It looks much better than the Google finance graph.

2) SCO Investor relations site is HOSTED BY IBM!!!!

Site report for ir.sco.com
Site http://ir.sco.com Last reboot 1 day ago Uptime graph
Domain sco.com Netblock owner IBM
IP address 170.224.5.57 Site rank 206587
Country US Nameserver a.ns.sco.com
Date first seen February 2003 DNS admin hostmaster@sco.com
Domain Registry dotster.com Reverse DNS unknown
Organisation The SCO Group, 355 S 520 W, Suite 100, Lindon, 84042, United States
Nameserver Organisation The SCO Group, 355 S 520 W, Suite 100, Lindon, 84042,
United States
Check another site:


Hosting HistoryNetblock Owner IP address OS Web Server Last changed
IBM 3039 Cornwallis Road Research Triangle Park NC US 170.224.5.57 Windows
Server 2003 Microsoft-IIS/6.0 3-Sep-2006
IBM 3039 Cornwallis Road Research Triangle Park NC US 170.224.5.57 Windows
Server 2003 Microsoft-IIS/6.0 4-Jun-2006
IBM 3039 Cornwallis Road Research Triangle Park NC US 170.224.5.57 Windows
Server 2003 Microsoft-IIS/6.0 12-Jan-2006
IBM 3039 Cornwallis Road Research Triangle Park NC US 170.224.5.43 Windows
2000 Microsoft-IIS/5.0 5-Jun-2005
IBM 3039 Cornwallis Road Research Triangle Park NC US 170.224.5.43 Windows
2000 Microsoft-IIS/5.0 12-Dec-2003
IBM 3039 Cornwallis Road Research Triangle Park NC
US 170.224.5.43 unknown Microsoft-IIS/5.0 11-Dec-2003
IBM 3039 Cornwallis Road Research Triangle Park NC US 170.224.5.43 Windows
2000 Microsoft-IIS/5.0 16-Dec-2002

[ Reply to This | # ]

Spoliation?
Authored by: GLJason on Friday, December 01 2006 @ 04:45 PM EST
I thought SCO's motion on spoliation of evidence was to be heard today too.
Does anyone know when that's supposed to be heard?

[ Reply to This | # ]

  • Spoliation? - Authored by: Anonymous on Friday, December 01 2006 @ 05:17 PM EST
  • Spoliation? - Authored by: jmc on Friday, December 01 2006 @ 05:30 PM EST
"take it up with Judge Kimball"
Authored by: Anonymous on Friday, December 01 2006 @ 06:58 PM EST
Kimball - "What part of NO don't you understand?"

;-)

[ Reply to This | # ]

Curiousity partially answered
Authored by: om1er on Friday, December 01 2006 @ 10:48 PM EST
I have wondered for quite awhile just how the SCO Group's legal counsel would
deal with standing in court, in front of the judge, knowing they have no
credible or usable evidence. How would that lawyer feel? What would he say?

Brent Hatch is apparently trying to blame the judges for SCO's lack of evidence,
by saying the judges threw it all away. He refuses to acknowledge in open court
that the disallowed "evidence" was not real evidence at all, or even
that it was turned over too late. He blames IBM for playing stupid, because
they knew all along what the case was about.

Those are plainly losing, irritating, tactics. He does not appear to be getting
far with the judge, either. I cannot imagine that the experience was pleasant
for Hatch.

What would make a person endure that? The will to fight even to his own
"utter destruction?" I don't get it.

---
Are we there yet?

[ Reply to This | # ]

"IBM knew of this (theory) forever"
Authored by: Anonymous on Monday, December 04 2006 @ 05:54 AM EST
Sure, SCO made some statements about their newly invented interpretation of
copyright law (by that kind of copyright law A.C. Doyle and Agatha Christie
could claim copyrights to a good chunk of modern literature).

One thing is: while SCO aired this strange copyright theory some time ago they
never properly introduced it into the case. SCO made a lot of public statements
but they always upheld that those had nothing to do with the case itself. While
they publicly claimed it was all about copyrights they started it mainly as an
interpretation of a contract.

A lot of SCOs claims never made it to the court: all that "evidence",
the millions of line-by-line copyright violations some mysterious MIT-experts
found and that Darl had in his suitcase. The "evidence" that couldn't
be shown to experts but only to reporters who had to agree in advance what to
write about it.

If SCO wanted all this before the court they should have brought it there in the
proper way, not introduce it hidden into footnotes of "expert"
declarations at the last minute.

The other thing is, as IBM correctly pointed out: even if it *was* about
concepts, structures and methods SCO hast to point out with specifity which
method was taken from where to where, and any method, structure or concept that
is implemented in a code has to be implemented. To be there, work and do
something it has to *be* there, written down in code and that code has to be
identified, in SCOs copyrighted code as well as in Linux.

All this has been clear from day one, nevertheless SCO managed to draw the case
out this long without presenting any valid evidence. Now they *still* wanted to
keep the option to introduce some mysterious evidence (which they still don't
have) probably so they can convince some of their more gullible investors that
this case can still fly.

Well, that tactic has come to an end, luckily before 2008.

[ Reply to This | # ]

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