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SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
Tuesday, January 09 2007 @ 10:35 PM EST

Pacer shows activity in SCO v. IBM. Specifically, SCO tries again to get around the court's recent decision to confine SCO's claims and strike allegations in excess of the list of allegedly misused materials on the table by the December 22, 2005 deadline. SCO has filed a Motion to Amend/Correct its December 2005 Submission [PDF]. Here's the Memorandum in Support [PDF].

What SCO wouldn't give for a time machine to go back and 'Amend/Correct' their December 2005 submission! It miscalculated, and now it is scrambling like mad. SCO has already filed objections to that order, so you could call this a SCO supplemental move to supplement their earlier efforts to find some way to get this material they didn't put on the table in time into the litigation. It's about the materials SCO tried to introduce via experts reports.

Here are all the filings in this case today on Pacer:

01/09/2007 913 - MOTION to Amend/Correct DECEMBER 2005 SUBMISSION filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Hatch, Brent) (Entered: 01/09/2007)

01/09/2007 914 - MEMORANDUM in Support re 913 MOTION to Amend/Correct DECEMBER 2005 SUBMISSION filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # 1 Exhibit 1-3 FILED UNDER SEAL # 2 Exhibit 4 # 3 Exhibit 5# 4 Exhibit 6# 5 Exhibit 7)(Hatch, Brent) (Entered: 01/09/2007)

01/09/2007 915 - NOTICE OF CONVENTIONAL FILING of EXHIBITS 1, 2 AND 3 TO MEMORANDUM IN SUPPORT OF SCO'S MOTION TO AMEND DECEMBER SUBMISSION filed by Plaintiff SCO Group, Counter Defendant SCO Group (Hatch, Brent) (Entered: 01/09/2007)

01/09/2007 916 - NOTICE OF CONVENTIONAL FILING of SCO'S MEMORANDUM IN SUPPORT OF ITS OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDER ON IBM'S MOTION TO CONFINE filed by Plaintiff SCO Group, Counter Defendant SCO Group (Hatch, Brent) (Entered: 01/09/2007)

01/09/2007 917 - Plaintiff's MOTION for Leave to File OVER LENGTH MEMORANDUM IN SUPPORT OF ITS OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDER ON IBM'S MOTION TO CONFINE filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # 1 Text of Proposed Order) Motions referred to Brooke C. Wells.(Hatch, Brent) (Entered: 01/09/2007)

The one to read first is #914, the memorandum in support:

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for The SCO Group, Inc.

___________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

___________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

____________________________

MEMORANDUM IN SUPPORT OF
SCO’S MOTION TO AMEND ITS
DECEMBER 2005 SUBMISSION

Case No. 2:03CV0294DAK

Honorable Dale A. Kimball Magistrate Judge Brooke C. Wells

Plaintiff, The SCO Group, Inc. (“SCO”), by and through undersigned counsel, submits this Memorandum in Support of its Motion to Amend Its December 2005 Submission.

PRELIMINARY STATEMENT

SCO seeks to amend its December 2005 Submission of “misused material” to incorporate certain evidence and analysis from SCO’s expert reports filed in May 2006. As the Court is aware, a dispute exists between the parties over whether certain theories and evidence relied upon in the expert reports was required to have been presented in the disclosure of alleged misused material submitted in December 2005. SCO has filed, contemporaneously with this Motion to Amend, its Objections to the Magistrate Judge’s Order granting IBM’s Motion to Confine SCO’s Claims to, and Strike Allegations in Excess of, the Final Disclosures. The Court recently vacated the February 2007 trial date in this matter. The trial date has not been reset and the Court has made clear this matter will not be tried prior to the September 2007 trial in the SCO v. Novell action. Thus, it is entirely appropriate that this dispute over whether certain expert theories needed to be identified in the December 2005 Submission instead of the May 2006 expert reports be rendered moot by the Court allowing this amendment to the December Submission and granting IBM any reasonable additional discovery necessary to defend against this additional material.

This Motion concerns only the categories of information subject to IBM’s motion to confine SCO’s expert reports. It does not seek to alter the Court’s prior rulings with respect to the items struck from the December Submission by the Magistrate Court’s June 28, 2006 Order and subsequently upheld by this Court. Unlike the items challenged in that ruling, the only issue here is whether a theory of copyright infringement and certain evidence and analysis relied upon by SCO’s experts in support of their opinions was required to be identified in December 2005 as opposed to

2

May 2006, or whether that submission can be amended to include the supplemental material. SCO submits that in light of the removal of this case from the trial calendar, there is no bona fide reason to reject an amendment to the December Submission to include that information – especially where the information was disclosed to IBM through expert reports served in May, 2006.

The information SCO seeks leave to add to its December 2005 Submission is: (1) evidence set forth in the May 19, 2006 report of Evan Ivie that further supports SCO’s position that the Journaling File System (or “JFS”) technology is derived from UNIX System V, a position that was disclosed in SCO’s December 2005 Submission; (2) evidence set forth in the May 19, 2006 report of Marc Rochkind that further supports SCO’s position that IBM misused testing technology from UNIX System V, a position that was disclosed in SCO’s December 2005 Submission; (3) additional system calls set forth in the May 19, 2006 report of Thomas Cargill, which are similar to and in the same category as system calls already disclosed in the December 2005 Submission; and (4) the expert analysis of SCO’s claim of Linux copyright infringement, as set forth in the May 19, 2006 report of Thomas Cargill, which is a claim that IBM has regarded SCO as having brought since the Spring of 2004. SCO collectively refers to the foregoing information as the “Supplemental Material.”

DISCUSSION

A. The Supplemental Material is Fully Disclosed and Analyzed in SCO’s Expert Reports.

The material and expert analysis that SCO seeks to add to its December 2005 Submission is fully set forth in the May 2006 expert reports of Evan Ivie, Marc Rochkind, and Thomas Cargill (Exhibits 1, 2, and 3, respectively), and thus is known to IBM from those reports.

3

1. Dr. Evan Ivie’s evidence related to the journaling file system (JFS)

In the December Submission, SCO identified the entire JFS file system as misused material, and also identified JFS as a derivative of UNIX System V. SCO further provided examples of technology within JFS that proved its derivation from UNIX System V. SCO identified JFS in this manner because IBM’s disclosure of the entire JFS file system to Linux breached IBM’s software license agreement in that JFS is derived from UNIX System V.

In his May 2006 expert report, Dr. Ivie concluded – consistent with SCO’s December 2005 Submission – that JFS is a derivative of UNIX System V, that IBM improperly disclosed the entire JFS file system to Linux, and that this disclosure to Linux materially advanced Linux into the enterprise.1 In discussing his conclusion that JFS was derived from UNIX System V, Dr. Ivie relied on the examples provided in the December 2005 Submission which were demonstrative of that derivation. In addition, Dr. Ivie looked at certain additional files that also showed the derivation of JFS. SCO seeks leave to add this supporting evidence, as set forth in Dr. Ivie’s May 2006 report at paragraphs 96 and 97 and Exhibits C to J, to its December Submission. (Ex. 1.)

2. Marc Rochkind’s evidence related to testing technology

In the December Submission, SCO identified certain testing files that IBM improperly contributed to assist with the development and commercial hardening of Linux. Consistent with that identification, Mr. Rochkind concluded in his May 2006 expert report that IBM contributed this testing technology to Linux and that it was highly valuable to the maturation of Linux for commercial uses.

4

IBM challenges two respects in which Mr. Rochkind relied on additional evidence in reaching his conclusions in his May 2006 report. First, Mr. Rochkind referenced evidence at page 149 showing that a contributor of challenged testing technology worked in that testing area for IBM. This material was discussed simply to set a foundation to show that the programmer who did contribute misused material that was identified in the December 2005 Submission worked in that area. (Ex. 2.) Second, Mr. Rochkind mentioned at pages 144 to 145 two IBM documentation files that were not identified in the December Submission. These files are simply used by Rochkind to explain that the “SPIE tests” (which were disclosed in December) and “MP PIE tests,” a term used in IBM documents, are two synonymous terms for the same technology. SCO seeks leave to add this supporting evidence and expert analysis, as set forth in Mr. Rochkind’s May 2006 report, to SCO’s December 2005 Submission. (Ex. 2.)

3. Thomas Cargill’s treatment of system calls

System calls are specific words developers have come up with to talk to an operating system. The words prompt the operating system to perform certain tasks, such as stopping a process that is being carried out by the operating system. In its December Submission, SCO identified numerous UNIX System V system calls that have been implemented in Linux in violation of SCO’s UNIX copyrights. These were all the misused system calls SCO had discovered at the time it filed the December Submission.

When Dr. Cargill prepared his May 2006 expert report, he located certain additional UNIX system calls that were being used in Linux in violation of SCO’s UNIX copyrights. Dr. Cargill’s opinions relating to these additional system calls are based in part on a book that was authored by engineers affiliated with IBM, and published in April 2006, months after SCO’s

5

December Submission deadline. (Ex. 4, Unix to Linux Porting: A Comprehensive Reference, Alfredo Mendoza, Chakarat Skawratananond, Artis Walker (April 2006).) Dr. Cargill relies on these system calls as further support for his ultimate theory – of which IBM has long known, as described in more detail below – that the overall structure of Linux infringes SCO’s UNIX copyrights. SCO seeks leave to add these additional system calls, which are among the system calls set forth in Dr. Cargill’s May 2006 report at pages 23 to 27 and Exhibit D(5), to SCO’s December Submission. (Ex. 3.)

4. Thomas Cargill’s analysis and application of SCO’s structural theory of
Linux copyright infringement

In his May 2006 expert report, Dr. Cargill explains his analysis and conclusion that the overall structure of Linux violates SCO’s UNIX copyrights. Dr. Cargill’s expert analysis applies the copyright infringement test set forth in Gates Rubber Co. v. Bando Chemical Industrial, Ltd., 9 F.3d 823 (10th Cir. 1993), to the overall structure of Linux and UNIX. SCO seeks leave to add this expert analysis and theory, set forth in Dr. Cargill’s May 2006 report at pages 3-4, 7-17, 2336, 63-76, and Exhibit D(5), to SCO’s December 2005 Submission. (Ex. 3.)

B. SCO Reasonably Did Not Include the Supplemental Material in the
December Submission.

SCO did not include and did not believe it had to include the foregoing evidence and analysis in its December Submission, to the extent it was known at that time, because IBM’s own representations in connection with the Scheduling Order indicated that parties need not disclose expert reports and analysis in their December submissions – that expert work would not need to be completed until the later deadline for submission of expert reports. Specifically, IBM stated:

SCO also complains that under IBM’s proposal “SCO’s expert(s) would have to reach final conclusions regarding IBM’s [alleged]

6

misappropriation of SCO’s material” (Opp’n at 12; SCO’s Fifth Point). Here again, SCO misstates IBM’s proposal. IBM proposes only that the Court impose deadlines for the parties to identify the Allegedly Misused Material. IBM’s proposal requires neither that the parties rely on experts nor that any experts that might be used by parties finalize their expert reports before the close of all fact discovery. Under IBM’s proposal, the parties’ experts would need to reach final conclusions before the close of fact discovery only with respect to the identification of the source code and other material that is at issue in this case.

(IBM’s Reply Memorandum in Further Support of IBM’s Proposed Scheduling Order (Apr. 11, 2005) at 4 (underlining in original, bold emphasis added).)

Thus, SCO acted in good faith when it assembled its December 2005 Submission and May 2006 expert reports. Although SCO adheres to its position that inclusion of these theories and evidence was not required in the December Submission – as set forth in the Objections filed by SCO to the Magistrate Judge’s Order granting IBM’s Motion to Confine SCO’s Claims to, and Strike Allegations in Excess of, the Final Disclosures – in the alternative, SCO seeks leave to supplement its December Submission with those portions of the expert reports described above that are in issue. See Scott v. IBM Corp., 196 F.R.D. 233, 247 n.9 (D.N.J. 2000) (holding that, “simply because [evidence] was untimely discovered and turned over does not warrant its exclusion,” and permitting such evidence where the plaintiff had shown no bad faith in the revelation of the additional evidence). SCO asks the Court to consider this Motion in conjunction with the arguments and precedent set forth in SCO’s foregoing Objections.

C. The Amendment of the December Submission to include the Supplemental
Material Would Not Prejudice IBM.

SCO’s proposed supplementation of the December 2005 Submission poses no prejudice to IBM. Trial in this matter has not been set and is at least ten months away, and IBM has known

7

of this material since it was set forth in SCO’s expert reports in May 2006. Thus, IBM has plenty of time to analyze and respond to the material.

Moreover, IBM’s expert reports already respond to several of the categories of enumerated information – reflecting that IBM well understood that the December 2005 Submission covered those items. For example, with respect to JFS, which SCO identified in Item 1 of the December Submission, IBM experts responded with a defense, but did not respond to the specific examples SCO did give in its December Submission showing that JFS was derived from System V. Thus, IBM’s defenses regarding JFS would be in no way impacted by the proposed supplemental material, which is simply additional examples of the derivation, of the same type as those that were already disclosed. However, if IBM wanted to respond specifically to this material, though it did not do so previously, it would have ample time to do so in the many months prior to trial.

The proposed supplemental evidence in Marc Rochkind’s testing analysis shows: (1) the technology area in which a certain programmer worked, and (2) that two terms for a technology are synonyms. IBM has not indicated whether it disputes this basic evidence. If IBM does not dispute it, no prejudice is created by its inclusion. If IBM does dispute this evidence, it is difficult to fathom how IBM could require more than ten months to analyze these simple points.

Regarding the supplemental system calls in Thomas Cargill’s analysis, IBM’s defense, explained by its expert Dr. Kernighan, is that the system calls are not original, are dictated by externalities, and constitute mere ideas or can be expressed in only a few meaningfully different ways. Dr. Kernighan’s analysis was general to all system calls; he raised no specific points regarding the specific system calls specifically identified by SCO in its December Submission. Thus, there is no reason to believe that IBM would have any different defense to the similar,

8

additional calls named in Thomas Cargill’s report. However, if IBM did wish to respond specifically to these additional system calls, it already has had more time between the May 2006 reports and the present to consider these items than the approximate seven months IBM would have had between December 2005 and the date its responsive expert reports were due. In addition, IBM will have at least as much time following this amendment being accepted and the time any trial is held.

Regarding Dr. Cargill’s structural theory of Linux copyright infringement, IBM had long understood that SCO had brought such a claim – indeed, well before the December Submission – so there should be no surprise to IBM by its inclusion in Dr. Cargill’s expert report. Furthermore, IBM has ample time in the now-extended trial schedule to formulate a defense to Dr. Cargill’s analysis. Consistent with Tenth Circuit law, Dr. Cargill’s May 2006 report analyzed the structure of Linux and UNIX. His analysis shows the structural similarity of Linux and UNIX, shows the expressive nature of the structures involved, and shows why it is protectible subject matter under copyright law. This analysis, as argued at greater length in the Objections, is one that Tenth Circuit law requires be conducted in a copyright case, and its application by SCO’s experts cannot be a surprise to IBM. Further, the analysis, as provided by Tenth Circuit law, does not include a line by line analysis of Linux and UNIX. Thus, to respond to this analysis, IBM also would not have to perform a line by line analysis of Linux, and would have ample time to prepare such a defense before trial.

While IBM may prefer not to have to defend on the merits of SCO’s claims, the “concept of prejudice does not encompass the expense of additional trial preparation.” United States v. Golyansky, 291 F. 3d 1245, 1250 (10th Cir. 2002). Rather, prejudice should be found only

9

where there is some evidence that a delayed disclosure impacted a party’s ability to prepare or present its case. Id. Here there is no such evidence. To the contrary, in light of the lengthy extension of the trial schedule, IBM would have ample time to prepare a defense to this discrete supplemental material. See Hertz v. Luzenac Am., Inc., No. CIVA04CV1961LTBCBS, 2006 WL 994431, at *21 (D. Colo. April 13, 2006) (“The absence of a fixed trial date affords a greater ability to cure any prejudice to the parties and minimizes the possibility of future disruption of the District Court's docket.”) (Ex. 5).2

D. SCO Would Be Prejudiced by Denial of the Motion.

In contrast to IBM’s lack of prejudice, SCO would be greatly prejudiced by the denial of SCO’s motion. On December 21, 2006, the Magistrate Court entered an Order holding that “SCO may not challenge as misused, by expert testimony or otherwise, any material that SCO has not specifically identified in its Final Disclosures of Material Allegedly Misused by IBM [SCO’s December Submission].” If this order is upheld by the District Court, SCO will not be able to present at trial the evidence that provides further support of its position that the JFS and testing technology was misused, the evidence that further supports SCO’s position that Linux infringes SCO’s copyrights, or the Gates Rubber expert analysis described herein. There also is a public interest in disputes being resolved on their merits, which granting of the requested relief would advance. Cf. F.D.S. Marine v. Brix Maritime Co., 211 F.R.D. 396, 400 (D. Ore. 2001) (stating that “public policy favoring disposition of cases on their merits” was one of five factors

10

to be considered where a party did not make full disclosure of its expert’s conclusions, and holding that “all of the above factors favor leniency” where other party had not suffered any prejudice because of time to prepare before trial).

CONCLUSION

For the reasons stated herein and in SCO’s above-referenced Objections, SCO respectfully requests that its Motion to Amend Its December 2005 Submission be granted.

DATED this 9th day of January, 2007.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By /s/ Brent O. Hatch
Counsel for The SCO Group, Inc.


1 Dr. Ivie’s opinion is bolstered by IBM’s own press release regarding its disclosure of JFS to Linux: “IBM Puts Enterprise Power Behind Linux.” (Ex. 7.)

2 Cf. Karbon v. Turner, No. 91-C-337, 1991 WL 319976 at *2 (E.D. Wis. Dec. 16, 1991) (unpublished decision) (holding that “relaxation of the scheduling order” would not unduly prejudice defendants or interfere with the administration of justice because the trial date was six months away and they had adequate time to complete discovery) (Ex. 6); Wolfson v. Lewis, 168 F.R.D. 530, 533 (E.D. Pa. 1996) (granting motion to amend where defendant would suffer no prejudice due to continuance of trial date); Pub. Serv. Co. of N.H. v. Westinghouse Elec. Corp., 685 F. Supp. 1281 (D.N.H. 1988).

11

CERTIFICATE OF SERVICE

Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing MEMORANDUM IN SUPPORT OF SCO’S MOTION TO AMEND ITS DECEMBER 2005 SUBMISSION was served on Defendant/CounterclaimPlaintiff, International Business Machines Corporation, on this 9th day of January, 2007 through the CM/ECF system, to the following:

David Marriott, Esq. (email)
Cravath, Swaine & Moore LLP
[address]

Todd Shaughnessy, Esq. (email)
Snell & Wilmer LLP
[address]

By /s/ Brent O. Hatch

12


  


SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text | 266 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: snorpus on Tuesday, January 09 2007 @ 10:41 PM EST
Should the need arise...

---
73/88 de KQ3T ---
Montani Semper Liberi
Comments Licensed: http://creativecommons.org/licenses/by-nc/2.0/

[ Reply to This | # ]

Off-topic
Authored by: snorpus on Tuesday, January 09 2007 @ 10:42 PM EST
Be sure to check those links...and make 'em clicky.

---
73/88 de KQ3T ---
Montani Semper Liberi
Comments Licensed: http://creativecommons.org/licenses/by-nc/2.0/

[ Reply to This | # ]

SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials
Authored by: Anonymous on Tuesday, January 09 2007 @ 10:55 PM EST
...this a SCO supplemental move to supplement their earlier efforts to find some way to get this material they didn't put on the table in time into the litigation. It's about the materials SCO tried to introduce via experts reports.
Is SCO delusional?

[ Reply to This | # ]

I Love this bit
Authored by: Anonymous on Tuesday, January 09 2007 @ 10:57 PM EST
As the Court is aware, a dispute exists between the parties over whether certain theories and evidence relied upon in the expert reports was required to have been presented in the disclosure of alleged misused material submitted in December 2005. A dispute, meaning that the Court and IBM agree to one interpretation, and SCO desparately needs another. And what they want to bring back is the oppinion that ALl of linux is infringing. An allegation so vague that it is impossible to defend against. -- Alma

[ Reply to This | # ]

It sounds so reasonable
Authored by: thorpie on Tuesday, January 09 2007 @ 11:16 PM EST

It sounds so reasonable, just four little items.

Well two rather piddly little items to lead the way, then an item a little larger to set the scene, then 41 pages worth of expert report from Thomas Cargill!

Appears a refusal will be met with "how awful, they would not even let us add one little explanatory point to the JFS claim"

The Cargill declaration is not accessible, can someone confirm it still under seal?

---
The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

[ Reply to This | # ]

And if this motion is granted then OBVIOUSLY all IBM's motions must be denied
Authored by: skidrash on Tuesday, January 09 2007 @ 11:19 PM EST
and IBM must re-file them at tne new, new, new, I really, really mean it, this
is the FINAL deadline.

otherwise SCO will be prejudiced.

[ Reply to This | # ]

No means No!
Authored by: kawabago on Tuesday, January 09 2007 @ 11:20 PM EST
I bet this is going to infuriate Judge Wells.

[ Reply to This | # ]

Becket Never Wrote Theater Of The Absurb This Well
Authored by: TheBlueSkyRanger on Tuesday, January 09 2007 @ 11:21 PM EST
Hey, everybody!

You know, this case is like a bad chili dog--just when you think you've got it
down, it comes rumbling back up again. Even if it's long after to the point you
think there's nothing left, WHOOPS! Here we go again!

I keep thinking back to, "Is this all you've got?" It has been
pointed out repeatedly that this was meant as a trip check, not an expression of
disbelief. Do I dare entertain the thought that, if they are allowed to amend,
they can be brought up on perjury? I know, it won't happen, but still....

Okay, so it's time to run the table.

1) Was this done just in anticipation of the Q4 conference call?

2) Was this done because, now that the case is going up like flash paper in a
magic act, both SCO and BSF are trying to set things up to make it look like the
failure of the case was the other's fault? Especially now that hints of
criminal activity are starting to suggest themselves?

3) Considering they were asked, "Is this all you've got?" and they
were given so many chances (the judges really have the patience of the saints)
to come forward, what are the chances that this whole thing will be greeted with
anything other than gales of derisive laughter before being tossed?

4) Is SCO still stuck on the early days when they seemingly could get anything
they asked for and they don't recognize that the playing field has changed to a
point where that won't happen anymore? Or is this simply Kevin Bacon at the end
of Animal House--"Remain calm! Everything's under control! All is
well!"?

Am I the only one who saw the headline for this article and just rolled their
eyes? I'm simply going to sum up my feelings with a tagline quote....

Dobre utka,
The Blue Sky Ranger

"Choose the one drink you wouldn't give your worst enemy, and make me a
double."
--Bruce Campbell (as Autolycus)
"Xena--Warrior Princess"

[ Reply to This | # ]

Oh let them supplement and maybe then they will shut up!
Authored by: devil's advocate on Tuesday, January 09 2007 @ 11:33 PM EST

It all sounds so plausible to me, and the evidence is so weak anyway. Wouldn't you love to see it all torn to shreds by IBM's lawyers? And it would actually be in IBM's interest to have all these pathetic allegations about JFS etc finally laid to rest.

[ Reply to This | # ]

very bad news
Authored by: Anonymous on Tuesday, January 09 2007 @ 11:37 PM EST
this motion will likely be granted

the key case is scott v ibm

because novell is going first there is enough time for ibm to do discovery on
sco's additional disclosures and no reason to exclude these items

with the additional disclosures about structure sequence and organization in
cargill, the copyright claims will not be able to be dealt with by summary
judgement. because these claims will be determined by dueling expert opinions -
and that is an issue of fact which requires a jury. we all know how good bois
is supposed to be with a jury.

it looks like ibm walked into sco's trap by saying that novell should go first.
and it explains why sco switched from wanting ibm to go first, to wanting
novell to go first.

[ Reply to This | # ]

How is this relevant?
Authored by: Anonymous on Tuesday, January 09 2007 @ 11:37 PM EST
In his May 2006 expert report, Dr. Cargill explains his analysis and conclusion that the overall structure of Linux violates SCO’s UNIX copyrights. Dr. Cargill’s expert analysis applies the copyright infringement test set forth in Gates Rubber Co. v. Bando Chemical Industrial, Ltd., 9 F.3d 823 (10th Cir. 1993), to the overall structure of Linux and UNIX. [emphasis added]
Let's assume, arguendo, that "the overall structure of Linux violates SCO's UNIX copyrights." That means that we're assuming that:
  • SCOG has some copyrights to have been violated.
  • these copyrights are ones that were valid in 1990 or so.
  • these copyrights are sufficiently comprehensive to cover the structure in question.
  • the Tooth Fairy [and/or] Santa Claus dumped the SVRX code on Linus' desk in 1990 or so, so he could copy the structure that SCOG is claiming.
  • that, in fact, Linus did copy the structure.

    Then, all SCOG has to prove is that none other than IBM Corp is the Tooth Fairy or Santa Claus. Sounds like BSF Summary Judgment material, doesn't it.


    Failing all the above, how is Linus' design relevant to SCOG's allegations against IBM?

    ---
    --Bill P, not a lawyer. Question the answers, especially if I give some.

    [ Reply to This | # ]

  • Setup the Interlocutory Appeal
    Authored by: SpaceLifeForm on Tuesday, January 09 2007 @ 11:43 PM EST
    And while you're at it, let's look at how you 'define the definition of define'.

    It appears like the old 'concepts and methods' attack is currently plutoed.

    Check out these phrases:

    theories and evidence
    theory of copyright infringement
    evidence and analysis
    Dr. Cargill’s structural theory of Linux copyright infringement

    He said, she said.

    ---

    You are being MICROattacked, from various angles, in a SOFT manner.

    [ Reply to This | # ]

    "SCO" and "good faith"
    Authored by: Anonymous on Tuesday, January 09 2007 @ 11:55 PM EST
    Boy... there are two things that it's hard to read in the same sentance without
    rolling your eyes in disbelief.

    --
    rt

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: Anonymous on Tuesday, January 09 2007 @ 11:58 PM EST
    It's interesting how focused SCO is on the long, long time yet to trial, and how
    eager they are to ignore the month and a half from now to Summary Judgement.
    Surely including this material now would prejudice IBM in regard to their
    summary judgement filings? Surely it would also prejudice them in regard to
    their expert reports, since the December 2005 disclosure was supposed to have
    been made before IBM's experts turned in their reports. Allowing SCO to go back
    and amend that filing now would be a serious prejudice to IBM, notwithstanding
    the fact that trial is many months away.

    I don't see how the Court can grant this motion now, without completely
    restarting expert discovery and summary judgement. I can't imagine the Court
    doing that. Of course, this Court has already catered to SCO far more than I
    could have imagined, so who knows?

    [ Reply to This | # ]

    Current Discovery Motions
    Authored by: Anonymous on Wednesday, January 10 2007 @ 12:24 AM EST
    I'm losing track - does anybody have a list

    This is as best as I remember them, did I get them right, listed by issue.


    (A) JEFF LEITZINGER

    1. SCO's Motion for a Protective Order Regarding Dr. Jeffrey Leitzinger's
    Personal Financial Information

    - Fully briefed? Hearing date?


    (B) ALLEGED SPOILATION OF EVIDENCE

    2. SCO's Motion for Relief for IBM's Spoliation of Evidence

    - Fully briefed? Hearing date?


    (C) THE VAGUE CLAIMS IN FINAL DISCLOSURES

    (they've lost in front of the Magistrate, gone to Kimball lost there, and now
    ask Kimball again)

    3. SCO's Request for Reconsideration - this is the one where they want to ask 4
    IBM programmers to identify the lines of code at issue. According to SCO, if
    they know the lines, it shows IBM suffered no prejudice, and if they don't know
    the lines, it shows SCO couldn't know either

    - Waiting for IBM reply memo?

    (D) LIMITING EXPERT REPORTS TO FINAL DISCLOSURES

    (this the one where Wells told them that expert reports were limited at the
    hearing)

    4. They've gone to Kimball with their objection

    - Waiting for IBM reply memo?

    5. They've gone to Wells asking that the final disclosures should be amended to
    encompass the expert reports (the motion in this groklaw story) - IBM 914

    - Waiting for IBM reply memo?



    Did I get it right on the status? Did I miss any?

    Quatermass
    IANAL IMHO etc.

    [ Reply to This | # ]

    No Bad Faith?
    Authored by: Anonymous on Wednesday, January 10 2007 @ 12:38 AM EST
    "plaintiff had shown no bad faith"

    IBM did claim SCO was trying to sandbag them.
    The court's ruling did say that appeared to be the case.
    Does that qualify as a showing of "bad faith"?

    SCO's points in this motion seem to be:
    - no bad faith
    - not too much to ask
    - new schedule allows IBM to do more discovery, so
    - no (unrectifiable) prejudice to IBM if granted
    - prejudice to SCO if not granted

    Is "no bad faith" a requirement?
    Would a showing of "bad faith" kill the motion?

    [ Reply to This | # ]

    Unbelievable
    Authored by: Anonymous on Wednesday, January 10 2007 @ 01:09 AM EST
    What are deadlines for?

    They had years to come up with their evidence. They were clearly told what they
    should present. Many times.
    They couldn't come up with the right stuff despite being given overly generous
    discovery.

    Now they are like a student who didn't study for their final exam, failed it,
    then keep going back asking to take a makeup.

    [ Reply to This | # ]

    I suspect this motion will be denied
    Authored by: Anonymous on Wednesday, January 10 2007 @ 01:11 AM EST
    Judges and courts aren't scientific. Science is willing to wait an eternity for
    the truth. Courts are creations to resolve disputes in finite time. I don't
    see BSF and SCO completely nullifying thousands of years of legal precedence.
    I don't expect the courts to have any sympathy for the "Judge, you got
    to let me keep suing until I get it right approach."

    IANAL

    [ Reply to This | # ]

    SCO is MISINFORMED
    Authored by: grayhawk on Wednesday, January 10 2007 @ 01:17 AM EST
    JFS is not a derivative of System V since it was developed for OS/2 and OS/2 is
    an intel based operating system similar to DOS. JFS was subsequently ported to
    AIX and did not originate on AIX/Unix as SCO supposes. These so called SCO
    experts must have a stash of the good stuff that they are smoking and should
    share it around.

    ---
    It is said when the power of love overcomes the love of power, that it is then
    and only then that we shall truly have peace!

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: webster on Wednesday, January 10 2007 @ 01:20 AM EST
    .
    0. Why file this with Wells when the objections to her order which is the
    subject of this Motion are before Kimball? They are both now considering this
    issue. They can make conflicting rulings. What do the rules say? What will
    the Judges decide to do with them? Both to Wells or both to Kimball? Both to
    KImball will save time. IBM might move to strike as duplicative and a crude and
    garish ploy for overlength memorandizing.

    1. "[A] dispute exists between the parties" over certain expert
    "theories and evidence." It is no longer a dispute between parties.
    It is the Court's order. Why ask the Court to reconsider or do a favor, when
    you can waffle around and pose righteous? Why address the court in language
    that reflects reality, when they can couch it in terms of their own dream
    reality?

    2. "B. SCO Reasonably Did Not Include the Supplemental Material in the
    December Submission." p. 6. This is an argument that they have lost. The
    Judge has said "No. This is not reasonable. The final deadline meant
    everything with specificity." This pleading is clearly for the lawyers.
    It was a colossal error not to abstract these "supplemental materials"
    from the expert reports and specify them at the December 2005 deadline. IBM
    even gave them an extra warning.


    3. They should offer to pay for all the legal fees caused by their delay in
    submitting this material, especially including fees necessary to read and
    counter their filings. That, along with the very strong argument that there is
    no prejudice to IBM because the trial has been put off indefinitely, can win the
    day. They have to make good for their delay. Their delay and stonewalling has
    churned up all this extra litigation. YOu have to pay a price for ignoring the
    Judge.

    4. They cite cases urging that cases be resolved on the merits. So they ask
    the judge to let the "merits" in since the absence of prejudice to IBM
    favor leniency. p 10-11.

    5. The safe thing to do would be to let it in. They should be made to give a
    reason for their delay. Their reason, that the expert reports could have new
    material, has been rejected by the court. If that were reasonable, they would
    ask to introduce new experts. With an explanation, an offer to pay, and all the
    extra time, their request should be granted. An argument and explanation such
    as "Please don't hold the lawyers' mistake against the client" carries
    great weight. What lawyer hasn't used that? It admits error and may be
    suicidal, but if it's right, what Judge would callously disregard the
    "merits?" "The object is justice, not gamesmanship!" ;-

    ---
    webster

    [ Reply to This | # ]

    JFS whatsit
    Authored by: sonicfrog on Wednesday, January 10 2007 @ 01:24 AM EST
    What, exactly, is their claim on JFS???

    [ Reply to This | # ]

    • JFS whatsit - Authored by: Anonymous on Wednesday, January 10 2007 @ 01:38 AM EST
    • JFS whatsit - Authored by: stend on Wednesday, January 10 2007 @ 02:20 AM EST
    • JFS whatsit - Authored by: ine on Wednesday, January 10 2007 @ 02:35 AM EST
      • JFS whatsit - Authored by: jmc on Wednesday, January 10 2007 @ 05:30 AM EST
    Hmm, how will this play out? ...
    Authored by: Anonymous on Wednesday, January 10 2007 @ 01:51 AM EST
    IBM: Yes Your Honor, in the interest of fairness we do not oppose this motion.

    The Court: Plaintiff's motion is granted.

    IBM: Now Your Honor, here is our motion to have each of these items stricken for
    lack of specificity.

    SCO: But Your Honor, the structure. The structure!

    Linux has files and directories, just like SysV. And look: they copied all our
    names, like "lib", "etc" and "tmp".

    Surely you see the structure. Their book has chapters, just like ours. Their
    pages are numbered, just like ours. And they even used the same numbers!

    Oh my, this is so pitiful. Desperate is an ugly place to be.

    [ Reply to This | # ]

    Judge Kimball: Grant Novell's Motion - it's simple and clear
    Authored by: Anonymous on Wednesday, January 10 2007 @ 02:20 AM EST
    All Judge Kimball has to do is decide in Novell's favor regarding Novell's very

    reasonable request that Novell has the right according to the APA contract to
    end SCO's litigation against IBM.

    It's simple, clearly written in the contract. There is no dispute that it is in
    the
    contract.

    This will effectively kill SCO's side of the litigation - ending years of
    wasteful
    litigation.

    We already know SCO is completely wrong.

    Let's get to the end-game as soon as possible.

    Judicial economy demands that Novell's simple motion be granted.

    It is the easiest of the issues to decide upon.

    There are so many ways Judge Kimball can quickly bring matters to an end.

    This is the simplest, most straightforward way to have everyone move ahead.

    It is the single card that brings the house of cards that SCO has built down.

    [ Reply to This | # ]

    Seem SCO has borrowed something ...
    Authored by: Anonymous on Wednesday, January 10 2007 @ 04:14 AM EST
    Original data analysis principle :
    If you torture the data long enough, it will speak in the way you want it to.

    SCO apply this principle to this case :
    If you litigate long/hard enough, the plaintiff will settle in the way you want
    it to.

    or apply this to the judge :
    If you litigate long/hard enough, the judge will act in the way you want it to.

    [ Reply to This | # ]

    SCO and their lawyers are wrong
    Authored by: Chris Lingard on Wednesday, January 10 2007 @ 05:12 AM EST

    Once again the SCO lawyers twist the facts.

    System calls are specific words developers have come up with to talk to an operating system. The words prompt the operating system to perform certain tasks, such as stopping a process that is being carried out by the operating system. I

    The system calls were a public standard such that all the different flavours of UNIX were nearly compatible. UNIX had fragmented, all the suppliers diverging with what they supplied, the UNIX standard was an attempt to cure this fragmentation.

    When Dr. Cargill prepared his May 2006 expert report, he located certain additional UNIX system calls that were being used in Linux in violation of SCO's UNIX copyrights.

    Santa Cruz never owned UNIX, Henry Ford and his successors never owned the Motor Car; and the descendants of the Wright brothers never owned the Aeroplane. Santa Cruz may have purchased a franchise, for little money and a load of shares, to sell a thing called UnixWare. And this might have transferred to Caldera International, and then to the current SCO. But UnixWare is long obsolete, which is why they got it cheap.

    [ Reply to This | # ]

    "As the court is aware"
    Authored by: Sunny Penguin on Wednesday, January 10 2007 @ 06:41 AM EST
    "As the Court is aware, a dispute exists between the parties over whether
    certain theories and evidence relied upon in the expert reports was required to
    have been presented in the disclosure of alleged misused material submitted in
    December 2005."

    Funny,
    Is the court a "party"?
    SCOX seeks to claim the disput is between SCOX and IBM; the only
    "dispute" is SCOX against a court order.

    ---
    This message sent from a laptop running Fedora core 6 with Intel wireless
    networking.
    Everything works....

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: Stumbles on Wednesday, January 10 2007 @ 06:46 AM EST
    Let's suppose for a moment the court allowed SCO to submit
    this material. So far from all the stuff I've seen, read and heard
    others comment on. Would it really make any difference at
    bolstering their position/arguments?

    Sure this new material would extend the case timeframe, ie
    delay. But putting that aside.

    I mean lets face it. In my mind, I would have to really insult my
    sensabilities to think their evidence has any real substantiated
    grit. I can't think of anything they have presented that cannot
    easily be shot full of holes. Which is rather pointless as in my
    view, everything they have submitted is full of holes..... and
    why would this request be any different?

    ---
    You can tuna piano but you can't tune a fish.

    [ Reply to This | # ]

    One possibility occurred to me
    Authored by: Anonymous on Wednesday, January 10 2007 @ 07:08 AM EST
    #include <IANAL.h>


    Is it possible that SCO's thinking is like this:

    1) we are about to get our case dismissed with prejudice

    2) ordinarily, such motions as the one we are making now would result in the
    judge saying "you are too late, you need to start a new case against IBM to
    get such new evidence considered"

    3) if our case is dismissed with prejudice, then we won't be able to start a new
    case against IBM

    4) in view of the above, the judge will now have to dismiss our case *without
    prejudice*, allowing us to start a new lawsuit against IBM using our May
    "evidence"

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: Anonymous on Wednesday, January 10 2007 @ 08:48 AM EST
    SCO is losing, and they know it.

    IANAL, but so far, to me at least, most of the motions such as this that might
    be considered "desperate" are simply "what have we got to
    lose" motions. First, it makes it look (to the investors) like there
    really is something "there" in the case. Second, really, what DO they
    have to lose? If the motion is denied, they are really no worse off than they
    are now, and there's always the FUD value. If they are granted, then they're
    better off (in theory). Now, the thing for them to watch out for is if it's
    granted, and subsequently IBM is granted leave to amend their final disclosures
    as well. They is probably a lot of things that have been discovered (no pun
    intended) in the last year. This could well backfire on them.

    [ Reply to This | # ]

    Executive Bonus and the MSFT and SUN deals
    Authored by: JR on Wednesday, January 10 2007 @ 09:21 AM EST
    What about the executives juicy bonus that Darrell and friends received as part
    of the profits they brought in because of the Microsoft and Sun deals? If they
    indeed didn't pay Novell their share, it means that they (SCO) didn't record
    profits the way they were supposed to, maybe in part to get their year end
    bonus.

    Will they have to return their bonus? Will they have to talk to the SEC and
    admit if they did it for the year end bonus too?

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: 34CFR20USC on Wednesday, January 10 2007 @ 09:58 AM EST
    I'm curious about the end game on this case. I know in criminal law, there is
    the ability to challenge a verdict based on ineffective assistance of counsel
    (Strickland v. Washington, Roe v. Flores-Ortega). Do civil cases have such a
    defense? If so, is it possible SCO is building towards this?

    [ Reply to This | # ]

    Why was this filed?
    Authored by: Anonymous on Wednesday, January 10 2007 @ 12:33 PM EST
    I see two options. Either BSF thought that they had a chance with this motion,
    or they knew that they didn't.

    The first seems like a very remote possibility. Both Wells and Kimball have
    already ruled that the deadline was a year ago, and new stuff simply isn't going
    to be added any longer. And the pathetic line about there being a dispute about
    this isn't going to fly with the court, not after the court has ruled. There
    isn't a dispute any more, and the court knows it. BSF knows it, too.

    That leaves the second possibility, that BSF knew this motion had no chance.
    But BSF is working for free now, and has been for a while. Why waste time (for
    no money) preparing and filing a motion that you know is hopeless?

    - To avoid sanctions? That seems unlikely; this kind of garbage seems to make
    sanctions more possible, rather than less.

    - For SCO's quarterly meeting? Possible.

    - To delay IBM's PSJs? I doubt they're even going to get that, and I doubt that
    they have any hope of it.

    - To keep SCO from turning on BSF in some fashion? Or to delay the day when
    they do? If IBM has the goods to go after some players on criminal grounds, BSF
    wants to keep those players from saying anything against BSF when the time
    comes. At a minimum, they want to delay the day when those players start
    talking to IBM.

    - Some other reason?

    Basically, what does BSF hope to gain here?

    MSS2

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: tinkerghost on Wednesday, January 10 2007 @ 12:51 PM EST
    The material and expert analysis that SCO seeks to add to its December 2005 Submission is fully set forth in the May 2006 expert reports of Evan Ivie, Marc Rochkind, and Thomas Cargill (Exhibits 1, 2, and 3, respectively), and thus is known to IBM from those reports.
    My responce:

    "So you acknowledge that you failed to properly include this information in your December 2005 Submission of your claims, instead springing it on IBM in the expert report after discovery was closed."

    ---
    You patented WHAT?!?!?!

    [ Reply to This | # ]

    One interesting thing - SCO seems to be better about the evidence/claims distinction
    Authored by: skidrash on Wednesday, January 10 2007 @ 03:00 PM EST
    SCO is no longer claiming that Wells and Kimball's discovery rulings "threw
    out claims".

    SCO consistently writes "evidence", as in " ... presented to the
    jury ..", instead of their recent modus operandi, claiming that claims were
    tossed, not deficient evidence.

    [ Reply to This | # ]

    "Supplement" Allegedly Misused Materials
    Authored by: rsteinmetz70112 on Wednesday, January 10 2007 @ 03:15 PM EST
    If this is a "Supplement" shouldn't these items tie directly to
    specific Items in the list of "Allegedly Misused Materials"?

    It would be easy to locate the JFS stuff.

    The testing suite should be relatively easy as well, although I must admit I
    never understood SCO's theory or how this material was related to Linux.

    System Calls are similarly identifiable from the list.

    I wonder why SCO shouldn't identify the specific items it was supplementing?

    The material on the overall structure of Linux, seems like a whole new theory to
    me. It also seems beyond the scope of IBM's contract with ATT since IBM did not
    create the structure of Linux, others did. This goes back to a direct copyright
    claim against Linux, I though something SCO abandoned a long time ago..

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

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

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: comms-warrior on Wednesday, January 10 2007 @ 04:40 PM EST
    If SCO (if it exists past their Q4 financial results submission) is allowed to
    enter "evidence" this way, (albeit weak evidence), wouldn't IBM be in
    a position to declare a mis-trial if this goes to court?

    Would they be so comprehensively prejudiced by the court as to claim they could
    not possibly defend their position?

    I am assured by the courts history of their application of commonsense that this
    will not occur, but you have to start thinking of all possibilities as you go.

    When all is said and done; with McBride looking at the world in orange-coloured
    jump suits, where would Kimball's reputation be if he allowed this to happen? He
    made an order to "Put up or shut up" (my words) last year.

    [ Reply to This | # ]

    ACTUALLY, I've changed my mind - SCO is still trying to confuse issues
    Authored by: skidrash on Wednesday, January 10 2007 @ 06:13 PM EST
    SCO's dependending less on "claims dismissed" versus "deficient
    evidence dismisseed"

    But they ARE depending on another sleight of hand,

    sanctions are now "prejudicial agaist SCO".

    just like the old saying - new wine, old bottles.

    SCO - new whine, same as the old whine.

    [ Reply to This | # ]

    The Condemed Man struggles to the bitter end...
    Authored by: Zarkov on Wednesday, January 10 2007 @ 08:14 PM EST
    This is not a surprising move at all... After all a man sentenced to death will
    take every opportunity to defer the inevitable...

    What tSCOG are trying to do here is a bit like the man on death row asking for a
    retrial with new evidence because the power supply to the electric chair has
    failed...

    Just because the procedings have been delayed does not mean that every decision
    made up to now is up for review...

    [ Reply to This | # ]

    Ideally this would be heard on the same day that SCO
    Authored by: skidrash on Wednesday, January 10 2007 @ 08:18 PM EST
    comes before Judge Wells and tap-dances around not producing any descovery for
    Novell for a year, and then only producing it, at the eleventh hour, after
    Novell files a motion,

    It would just highlight and keep fresh in the judge's mind who she's dealing
    with (not that she needs that, but a refresher course wouldn't hurt).

    [ Reply to This | # ]

    This is clearly just a set-up for a lengthy appeal
    Authored by: Totosplatz on Wednesday, January 10 2007 @ 08:48 PM EST
    Watch tSCOG appeal this if it is denied. This is just a clever monkey-wrench
    tossed into the works as a distraction while the bandits high-tail it out of
    Dodge.

    Bah!

    ---
    All the best to one and all.

    [ Reply to This | # ]

    SCO Pleads with Court to Let SCO "Supplement" Allegedly Misused Materials - Memo as text
    Authored by: pooky on Wednesday, January 10 2007 @ 09:16 PM EST
    This is rediculous. We've come back to the beginning. The court has said SCO
    must produce by line number and file what IBM has misused, and here they are
    continuing to argue:

    1) All of Linux infringes because the structure of it is similar to UNIX System
    V.
    2) All of JFS infringes because it is a derivative of UNIX under the software
    license agreement.
    3) IBM knows what it did so we shouldn't have to tell it.

    This is the same response I get from my 3 year old when I ask him a question he
    can't answer:

    Q: Why did you do that?
    A: That's why.




    ---
    Many Bothans died to bring us this information.

    [ Reply to This | # ]

    The funniest thing is
    Authored by: Anonymous on Wednesday, January 10 2007 @ 10:11 PM EST
    1) The JFS used in Linux came from OS2(well known and documented) and then
    ported to AIX. (Note: this is v2 of JFS, the original was written for AIX, but
    all the work was done by IBM)

    2) The system calls they are holding onto for dear life are most likely the
    Single Unix Specification(from www.unix.org):

    Today, the definition of UNIX ® takes the form of the worldwide Single UNIX
    Specification integrating X/Open Company's XPG4, IEEE's POSIX Standards and ISO
    C. Through continual evolution, the Single UNIX Specification is the defacto and
    dejure standard definition for the UNIX system application programming
    interfaces. As the owner of the UNIX trademark, The Open Group has separated the
    UNIX trademark from any actual code stream itself, thus allowing multiple
    implementations. Since the introduction of the Single UNIX Specification, there
    has been a single, open, consensus specification that defines the requirements
    for a conformant UNIX system.

    As for the testing methodologies and uh structures and methods, well now thats
    just silly!

    And they are fighting tooth and nail to get this in, they REALLY want to get
    this in front of a jury.

    Too bad they only have enough cash to get to bankruptcy....

    [ Reply to This | # ]

    Is it just me or...
    Authored by: Wardo on Thursday, January 11 2007 @ 05:02 PM EST
    (Disclaimer: I haven't read into all the threads, so if this has been mentioned
    before, sorry.)

    ... is SCO's claim that the trial date has been vacated, and therefore gives
    more time for discovery to IBM, kinda funny? Didn't the IBM opposition memo
    against the SCO extension mention that SCO would soon be asking to re-open
    discovery because the trial date would get nuked? (That may have been in the
    posts here on Groklaw.)

    The history:
    1. SCO can't meet a deadline it knew about for some months, and asks for an
    extension of one week from IBM. IBM agrees, and adds 1 week to all the
    deadlines in late 2006. IIRC there is a stipulated motion granting this
    extension.

    2. SCO can't make the new deadline either, so it talks to IBM, and offers to the
    court another "stipulated" motion, except where SCO changed the time
    extension from one value to another. IIRC it gets granted anyhow, but destroys
    the trial date and hearing dates on the PSJs.

    3. Both other objections to the evidence in this motion being admitted into the
    trial have failed. So this is the third time (at least) SCO has tried to
    contradict the decisions of the court.

    4. SCO's own delay caused the loss of the trial date, so it would seem to me
    that granting this motion would in effect be rewarding the delay tactics used so
    far by SCO. [By allowing into evidence items which have already failed at least
    2 attempts to have them admitted after the December 2005 deadline.]

    5. Just for grins, in the Novell case, SCO has "missed" another
    deadline; one they have known about for over a month (since 1 December 2006),
    which has been extended by "stipulation" once already.
    Notwithstanding that the motion Novell made in this instance isn't all that
    long. There are fewer than 10 statements of fact as I recall, so rebutting them
    should be easy. (If you ignore that most of them have been taken straight from
    unchallenged SCO/Novell/IBM assertions/responses.)

    History repeats itself

    Wardo

    [ Reply to This | # ]

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