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| Report from the March 5 Hearing [updated 4Xs] |
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Monday, March 05 2007 @ 08:13 PM EST
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Today were the hearings on two more of IBM's motions, specifically: Motion for Summary Judgment on
on SCO's Unfair Competition Claims (SCO's Sixth Cause of Action) [PDF] and Motion for Summary Judgment on SCO's Interference Claims (SCO's Seventh, Eighth, and Ninth Causes of Action) [PDF]. Here's IBM's Redacted Memorandum in Support [PDF] of the motion regarding interference claims, and here's the Redacted Memorandum in Support [PDF] of IBM's motion for summary judgment regarding SCO's unfair competition claims. Finally, they refer to a case, Leigh Furniture & Carpet Company v. Isom, and while the case is too old to be available for free on the Internet, Groklaw covered the ruling once before, using two other cases that quote from it, in case you'd like to know what that part is about.
This is the first time there has been a matter where observers were asked to leave the courtroom. There was no warning in advance that this would come up. It was SCO that raised the matter. While we have heard what SCO says the private matter was about (IBM emails, allegedly), that doesn't mean that is correct or that it is all that was discussed. In time, it will all come out, I'm sure. As expected, Judge Dale Kimball took both of the motions under advisement. Update: The Deseret News reports on the day's events now too.
Chris Brown's report:
I've just returned from the courthouse hearing IBM's Motion for Summary
Judgment on SCO's Unfair Competition Claim and IBM's Motion for Summary
Judgment on SCO's Tortious Interference Claim.
At the beginning of the hearing SCO's Edward Normand discussed how to
handle SCO's presentation of materials which IBM has marked
confidential. Judge Kimball decided to clear the courtroom at the point
where those documents will be discussed.
IBM's David Marriott went first and reviewed SCO's claims that IBM
improperly took code from Project Monterey and put it into AIX for Power
product. He said there are five reasons SCO's claim fails for purposes
of summary judgment:
First, that SCO cannot produce evidence of unfair
competition.
Second, that SCO's claim is preempted by copyright law.
Third, that SCO's claim is untimely.
Fourth, that SCO cannot establish bad
faith.
And fifth, that SCO has not and cannot demonstrate damages.
On the first point, he said that unfair competition involves misappropriation or palming
off. He showed various cases that show that breach of contract cannot
result in claims of unfair competition. The rights and obligations of
the parties are in the Joint Development Agreement. Also, that the
agreement between IBM and Santa Cruz only permitted the assignment of
the agreement to another with the permission of IBM, and IBM did not give
that permission. Judge Kimball asked about the theory that SCO retains
the right to sue. Mr. Marriott said that nowhere in the agreement are
there terms that give SCO that right.
Second that the claim is preempted by Federal Copyright Law. He
discussed various elements in case law pertaining to misappropriation
that would not result in preemption and explained that none of those apply.
Third, the complaint is untimely because the JDA had a two-year
limitation clause. SCO's claims that IBM either concealed or is in
continuing violation are wrong. He cited cases where continuing
violation are inapplicable. As far as SCO's claim that IBM was
concealing, the parties agreed from the beginning that IBM would place
code from Project Monterey in AIX. The head of Santa Cruz acknowledges
they were told in 2000 that IBM intended to put Unix System IV code in
AIX. IBM publicly announced that they had included the code in AIX in
press releases. SCO therefore knew, or should have known, that IBM used
the code.
Fourth, he argued SCO has presented no evidence of bad faith.
Fifth, SCO, despite IBM's interrogatories requesting SCO to specify
damages and court orders to do so, has not shown damages or lost profit
as a result. SCO relies on three expert reports, though not one offers
competent evidence of damages.
After Mr. Marriott closed, the courtroom was cleared of those not
party to the confidentiality agreements. Reports from a reliable (SCO)
source indicate the confidential materials were internal IBM emails.
Some were emails presented before by SCO a couple years ago, and others were
new. SCO presented the emails on charts and walked the judge through
them. IBM's Mr. Marriott also responded while the courtroom was closed.
After we re-entered the courtroom, Mr. Todd Shaughnessy argued on
behalf of IBM on the tortious interference claim pertaining to SCO's
7th, 8th, and 9th cause of action.
Mr. Shaughnessy said that the number of companies IBM is alleged to have
interfered with has changed throughout SCO's case, with the current count
at 177. Of those 177, there are only seven that SCO claims IBM directly
contacted. He said that SCO failed to show improper purpose and failed to
show damages.
He reported that SCO's 30(b)(6) witness says SCO is not alleging IBM
contacted any of the other 170 companies. In the case of the remaining
seven companies, each has stated it has made no changes in its
relationship with SCO because of IBM.
Baystar's Mr. Goldfarb has stated he has had no contact with IBM. He
said he changed his relationship based on a long laundry list of reasons.
Mr. Shaughnessy continued with each of the other companies. He said
that there are a lot of reasons a company might change its relationship
with SCO, not least of which would be a high-profile attack on Linux.
Novell has submitted a declaration that its actions are entirely
independent of IBM. SCO has not submitted any competent eveidence that
someone at IBM talked to someone at Novell.
SCO has no evidence that IBM met with any of those companies or that IBM told
them not to do business with SCO. But if we hypothetically assumed IBM
did meet with each of them and told them not to do business with SCO,
there would be nothing wrong with that. IBM's allowed to do so.
SCO failed to prove causation or damages. SCO has not provided such
in response to any of IBM's interrogatories. In SCO's 30(b)(6) deposition
SCO's witness said he cannot specify damages for any of these companies.
SCO's own employees state the reason SCO's income decreased are for
reasons unrelated to IBM.
SCO's Mark James responded. He said that when SCO met with IBM, IBM's
Karen Smith was very angry with SCO in a meeting with Darl McBride. She
threatened Mr. McBride that IBM would stop doing business with SCO and
IBM would stop other companies from doing business with SCO. He said
that Ms. Smith carried through with her threat and met with HP telling
them to stop doing business with SCO, after which SCO's relationship
with HP suffered.
He said that Baystar invested in SCO but subsequently behaved
erratically, alternately supporting and criticizing SCO's litigation.
Mr. Goldfarb told Darl McBride that IBM is "on him, on him, on him".
Judge Kimball interjected, asking if that isn't hearsay. Mr. James
replied that it is, but that it demonstrates a controversy of fact
requiring a trial and the ability to impugn the witness because of
conflicting testimony.
Mr. James recapped the history of Unix on Intel's market share. He
said that in 1998 SCO had 80% of the Unix-on-Intel market. In 1999, IBM
stated that Linux was not ready for business, though in 2000 IBM
announced it would provide Unix technology to Linux to "harden Linux."
He said there are genuine disputes of material fact about why these
companies have stopped doing business with SCO.
SCO has provided 35 disputes of material facts and SCO only needs one
dispute to prevail.
He claimed it's rare for a moving party to admit to interference, and
circumstantial evidence is sometimes the only evidence.
He discussed the Leigh Furniture case in detail. In that case
Isom(?) did not itemize loss from individual customers to prove tortious
interference.
Mr. James then discussed several more cases and how they support SCO's claims.
He further argued that the requirement is that a jury evaluate the
cumulative effect of IBM's actions. He said this is not an economic
theory case. It's an alternative theory of interference.
He summarized that there are issues of material fact to preclude
summary judgment.
Todd Shaughnessy responded that unless Judge Kimball has any questions,
he'd close.
Judge Kimball said that he'd take it under advisement.
Mathfox:
Pre-hearing impressions: SCO was there with about a dozen lawyers,
setting up half an hour before the hearing started. Darl and Kevin
McBride were there too, taking the back-bench of the public gallery area.
Before the hearing on the motion for partial summary judgment on SCO's unfair competition
claims started, there was a short discussion about procedures; SCO
wanted to present some confidential documents. It was decided that
the hearing would be closed when Edward Normand would make his
argument.
David Marriott made IBM's arguments against SCO's unfair competition
claims. He characterized SCO's claims as alleging that "IBM improperly
took code from the Monterey project for use in AIX on Power". He
argued that such use was intended in the Monterey contracts and
SCO's acts here could be seen as tortious interference in the
IBM-Santa Cruz contract. He also alleged that SCO's main gripe
seemed that "IBM failed to disclose its support for Linux".
SCO shows no evidence of any contract infringement with respect to
the Monterey contracts and IBM's AIX. In fact, it has never shown
that SCO *acquired* any Monterey rights from Santa Cruz. IBM had the
contractual right to block a transfer of the Monterey rights and it
blocked the transfer to Caldera. Kimball chimed in here with the
question of whether that also concerned a right to sue.
Furthermore, Marriott argued that the claims are preempted under
copyright law. I admit that I missed the details of the argument
here, but the gist was that these issues should be litigated as either
contract or copyright claims. Marriott also discussed the five lawsuits
that SCO raised in support of its claims.
Furthermore, IBM argued that SCO brought this claim in an untimely manner. The
contracts say that a lawsuit has to be brought within two years
after an infringement. IBM never hid its intentions or distribution
and even Santa Cruz's head of Unix development declared that he
personally knew of IBM's use of the code in 2000.
The last two points that were argued were that IBM didn't act in
bad faith, because the Monterey contracts inferred a license and
that SCO could not demonstrate that it suffered damages. SCO refused
to answer interrogatories, deferred to its expert reports, and even
the experts' reports failed to shine light on any SCO's damages here.
[Hearing closed: Groklaw reporters left courtroom.]
We continue when Todd Shaughnessy makes IBM's argument in support
for PSJ on SCO's claims for tortious interference with contract, counts
7, 8 and 9 in the complaint.
Shaughnessy noted that the extent of the tortious interference claims had
changed significantly during the litigation, but that currently SCO alleged
177 cases, mostly from companies that switched from SCO Unix variants to Linux;
in 7 cases SCO alleged direct contact from IBM with the company involved.
IBM argues again that SCO fails to produce evidence of interference, fails to
show that IBM used improper means or acted with improper intent and that it fails
to show causality between IBM's actions and damage to its business.
IBM rebuts the allegation over interference with the Baystar investments with
Larry Goldfarb's (Baystar CEO) declaration that he never spoke to IBM and
that Baystar made its decisions based on concerns on how SCO's management handled
its business. The only thing that SCO has on IBM here is Darl's declaration that
Goldfarb said that "IBM was on him, on him, on him."
With respect to Intel, Oracle and Computer Associates Mrs. Smith denies talking
the companies; the companies deny talking with IBM on the topic of SCO and from
declaration from SCO declaraions it appears that the "decline in business" started
in 2001; which is before the alleged 2003 IBM interference.
Mrs. Smith's conversations with HP had one result (according to a declaration of
Mr. Becker); HP decided to stop talking to Mrs. Smith, but it didn't cause a change
of relation with SCO. In a similar vein Novell doesn't deny talking to IBM, but
Novell took "independent action to protect its own business interest."
Which all leaves the fuzzy claim that "IBM interfered with the Unix on Intel
market by providing support for Linux". All in all SCO was unable to show bad intent in IBM's actions.
Lastly the issue of injury was discussed: how large were SCO's damages. IBM states
that SCO failed to provide relevant information in discovery, deferred to expert
reports that also failed to provide numbers. Even in a rule 36 deposition on the
topic SCO's wittness could not put a number on it. Furthermore the damages SCO
claims seem to be the same as those for the Linux copyright infringement and SCO
should not be paid twice for the same injury. Lastly, SCO's employees attribute the
decline in business to bad business decisions on SCO's part.
Mark James took up the defense for SCO; he declared that it all started between
November 2002 and January 2003 when McBride was having discussions with Smith
relating to the initial SCOsource plans, demanding license fees for the use of
SCO shared libraries. IBM rejected SCO's plans and, according to Darl, Mrs. Smith
threatened to ruin SCO's business should it execute its plans. James rambled on
about SCO's conspiracy theories until Kimball interposed, "That's your word."
James went on with describing Santa Cruz buy of the Unix business as "lock, stock
and barrel" and Novell's waiver and copyright claim were all IBM's fault.
Furthermore it was horribly wrong that IBM helped Novell to buy Suse, with advice,
connections and money.
Furthermore IBM destroyed the Unix on Intel market where SCO held
80% of the 3 Billion market. This is due to the January 2000 support announcement
for Linux and the subsequent "technology disclosures". SCO still believes that
IBM placed AIX JFS (and not OS/2 JFS) into Linux. Linux overtook SCO in its market.
There are sufficient disputed facts here, SCO counts 35, to require a jury trial.
SCO certainly believes that there is a pattern of circumstantial evidence that
may be enough to convince a jury of IBM's improper interference with SCO's earnings.
There was a discussion of several cases and James repeated that the loss of SCO's
market was attributable to IBM's contributions to Linux. The cumulative effect
of IBM's actions shows improper intent.
Shaughnessy didn't use his option for a rebuttal, whereupon the hearing ended
Ruidh's report:
There were two very unsexy motions heard today. IBM's motions on SCO's
Unfair Competition and Tortious Interference claims. The first related
to the Monterey contract and IBM putting SVR4 code into AIX for Power
PC. The second was SCO's claims 7, 8 and 9. Claim 7 was Interference with
Contract (by virtue of supporting Linux), 8 was Interference with
Contract (with Novell), 9 was Interference with Business Relationships
(The entire Unix-on-Intel market).
I suppose the other reporters will give exhaustive reports, so I'll
take the liberty of making some disjointed observations.
The courtroom was cleared of observers who weren't cleared to see or hear about
confidential materials for all of SCO's presentation on the first
issue, so we have absolutely nothing to say about it. The hallway we
waited in was very nice.
Kimball had few questions today. But he did mention early on in
reference to the Monterey contract, "That was between IBM and Santa
Cruz." I don't think that SCO will be snowing him by blurring the line
between Santa Cruz and SCO.
IBM tended to hit on legal issues. In the first issue, David Marriott
had 5 reasons why they should get a partial summary judgment:
- No admissible evidence of
wrongdoing;
-
Preemption by copyright -- some additional element is
necessary beyond copyright infringement for there to be a valid state
claim;
- Untimely -- SCO waited too long to bring the claim. This is
essentially the (successful) line of argument IBM made in opposing
SCO's third amended complaint.
-
Can't establish bad faith;
-
SCO
can demonstrate no damages.
Each of these looks like a fatal bullet to me, but we couldn't hear
SCO's responses.
We went back in for the Tortious Interference claims. Again, IBM was
hitting on the legal basis of the claims. Todd Shaughnessy offered
three main points: - No evidence -- SCO has no admissible evidence of
any specific acts by IBM which led to people not buying from SCO.
- No improper purpose or means -- mere breach of contract is not
improper intent -- it needs intent to injure.
- No damages causation --
if the conduct is the same as a copyright claim and the damages are the
same, no independent action exists.
IBM complained that SCO wasn't
clear how each of its claims was distinct.
Kimball asked IBM about the state of the law on interfering in a
market. IBM replied that there was no law or precedent.
SCO, with Mark James speaking, gave some clarity. 7, 8 and 9 were as I
described them above. He went into a long recitation of timelines and
events repeating the mantra, "A reasonable jury could conclude..."
trying to get across the point that there is something somewhere a
jury should consider here. On damages, he cited a Utah case where a tortious interference
claim was successful without identifying a single lost customer --
just on the strength of lost business.
Unfortunately, I think that line of argument fails as IBM earlier
reminded Kimball that Wells ordered SCO to respond to IBM's
interrogatories "with specificity".
It was a long afternoon and we broke with IBM opting not to take its
rebuttal time. Both motions were taken under advisement.
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| Authored by: Peter H. Salus on Monday, March 05 2007 @ 08:23 PM EST |
"under advicement" -> "under advisement"
---
Peter H. Salus[ Reply to This | # ]
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- Correction furtermore -> furthermore n/t - Authored by: Anonymous on Monday, March 05 2007 @ 08:38 PM EST
- Correction - Authored by: Anonymous on Monday, March 05 2007 @ 08:39 PM EST
- "detais" --> "details" - Authored by: Anonymous on Monday, March 05 2007 @ 08:43 PM EST
- it's to its - Authored by: kevinsnotalawyer on Monday, March 05 2007 @ 08:47 PM EST
- weren;t -> weren't - Authored by: Anonymous on Monday, March 05 2007 @ 08:57 PM EST
- weren;t --> weren't - Authored by: DickPilz on Monday, March 05 2007 @ 09:00 PM EST
- someone ate Novell !!! - Authored by: Anonymous on Monday, March 05 2007 @ 10:31 PM EST
- bullett>>bullet - Authored by: Anonymous on Monday, March 05 2007 @ 11:01 PM EST
- Date Typos: 1988/1998, 90%/80%, and 1999. - Authored by: chrisbrown on Tuesday, March 06 2007 @ 02:06 AM EST
- System IV -> System V ? - Authored by: Anonymous on Tuesday, March 06 2007 @ 02:53 AM EST
- Todd Shaughnessy made IBM's argument in support of SCO's claims - Authored by: Anonymous on Tuesday, March 06 2007 @ 06:03 AM EST
- desert->deseret - Authored by: Anonymous on Tuesday, March 06 2007 @ 06:24 AM EST
- Correction - Authored by: Anonymous on Tuesday, March 06 2007 @ 06:42 AM EST
- Correction - Authored by: JThelen on Tuesday, March 06 2007 @ 08:52 AM EST
- s/eveidence/evidence - Authored by: gumnos on Tuesday, March 06 2007 @ 09:43 AM EST
- "Desert News" -> "Deseret News" - Authored by: Anonymous on Tuesday, March 06 2007 @ 10:42 AM EST
- Bold Underlined Headers - Authored by: rsteinmetz70112 on Tuesday, March 06 2007 @ 10:51 AM EST
- Correction - Authored by: Anonymous on Tuesday, March 06 2007 @ 10:53 AM EST
- Januari -> January - Authored by: alisonken1 on Tuesday, March 06 2007 @ 11:42 AM EST
- declaraion --> declaration - Authored by: Rudisaurus on Tuesday, March 06 2007 @ 03:15 PM EST
- Correction: inferred==>implied - Authored by: Ted Powell on Tuesday, March 06 2007 @ 03:41 PM EST
- Correction Mrs. Smith -> Ms. Smith - Authored by: Aladdin Sane on Tuesday, March 06 2007 @ 05:34 PM EST
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| Authored by: om1er on Monday, March 05 2007 @ 08:34 PM EST |
Mathfox,
Since you were that close to Darl, did you not have an urge to stroll over and
tell him that there really is a PJ?
---
Are we there yet?[ Reply to This | # ]
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| Authored by: PolR on Monday, March 05 2007 @ 09:00 PM EST |
Obligatory thread
Please make them clicky
[ Reply to This | # ]
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- Microsoft: (CLAIMS) Office Format War Over - Authored by: Anonymous on Monday, March 05 2007 @ 09:06 PM EST
- Microsoft: (CLAIMS) Office Format War Over - Authored by: Latesigner on Monday, March 05 2007 @ 10:16 PM EST
- Microsoft: Throwing in the Towel? - Authored by: Anonymous on Monday, March 05 2007 @ 11:03 PM EST
- Prelude - Authored by: Anonymous on Monday, March 05 2007 @ 11:42 PM EST
- The war is just beginning, Microsoft will lose (n/t) - Authored by: Anonymous on Tuesday, March 06 2007 @ 08:50 AM EST
- The war will be over when - Authored by: Anonymous on Tuesday, March 06 2007 @ 11:13 AM EST
- Since when is it a WAR - Authored by: Anonymous on Tuesday, March 06 2007 @ 01:46 PM EST
- Microsoft admits non-compliance - Authored by: stites on Tuesday, March 06 2007 @ 01:49 PM EST
- Yes the format war is over, the real action is just about to start... - Authored by: jeevesbond on Tuesday, March 06 2007 @ 02:20 PM EST
- Microsoft: (CLAIMS) Office Format War Over - Authored by: PolR on Tuesday, March 06 2007 @ 03:37 PM EST
- There is a shell game going on! - Authored by: UncleVom on Tuesday, March 06 2007 @ 04:13 PM EST
- Iowa anti-trust --Microsoft considered abandoning Office for Mac in order to cause harm to Apple - Authored by: Anonymous on Monday, March 05 2007 @ 09:26 PM EST
- "Microsoft attacks Google on copyright" - Authored by: Brian S. on Monday, March 05 2007 @ 10:02 PM EST
- Is PJ's middle initial S by any chancee? - Authored by: Anonymous on Monday, March 05 2007 @ 10:10 PM EST
- Lawyer in the Financial Times on why the DOJ and Microsoft are right and the EU is wrong. - Authored by: Brian S. on Monday, March 05 2007 @ 10:39 PM EST
- " Dr. Fred Haney Named to ElectionMall Board of Directors" - Authored by: Brian S. on Monday, March 05 2007 @ 11:48 PM EST
- "Director of Microsoft Research's Redmond lab to retire" - Authored by: Brian S. on Tuesday, March 06 2007 @ 12:03 AM EST
- From the Indian Front: Amritsar and Jalandhar declare independence from the Empire. - Authored by: Brian S. on Tuesday, March 06 2007 @ 12:45 AM EST
- "Computer firm in Labour's tax credit fiasco gets extra £3.5bn" - Authored by: Brian S. on Tuesday, March 06 2007 @ 01:34 AM EST
- I miss PJ - Authored by: Anonymous on Tuesday, March 06 2007 @ 07:19 AM EST
- Broadcasters will be fined $12.5 million in payola deal - Authored by: Anonymous on Tuesday, March 06 2007 @ 07:53 AM EST
- Sun Opens Project Darkstar - Authored by: Nivuahc on Tuesday, March 06 2007 @ 09:44 AM EST
- Microsoft patch stops Linux on Xbox 360 - Authored by: Nivuahc on Tuesday, March 06 2007 @ 09:47 AM EST
- FAA may go Linux/Google - Authored by: lordshipmayhem on Tuesday, March 06 2007 @ 12:28 PM EST
- OT Here - Authored by: Anonymous on Tuesday, March 06 2007 @ 12:38 PM EST
- Spring forward; Fall back-- New Daylight Savings Time --Linux Howto - Authored by: Anonymous on Tuesday, March 06 2007 @ 01:13 PM EST
- document retention lapses - aka destruction of evidence - Authored by: SpaceLifeForm on Tuesday, March 06 2007 @ 01:57 PM EST
- why was my account removed? - Authored by: Anonymous on Tuesday, March 06 2007 @ 02:05 PM EST
- An attack from an unexpected source - Authored by: SpaceLifeForm on Tuesday, March 06 2007 @ 06:18 PM EST
- Microsoft is offering prizes to bloggers who mention the deal. 93% Discount on Office - Authored by: Anonymous on Tuesday, March 06 2007 @ 07:43 PM EST
- Mark Klein (of AT&T - NSA fame) on ABC's Nightline tonight - Authored by: SpaceLifeForm on Tuesday, March 06 2007 @ 08:25 PM EST
- OT: MS is checking to see if a ... - Authored by: Anonymous on Tuesday, March 06 2007 @ 09:30 PM EST
- "PC sales to stay slow: IDC" - Authored by: Brian S. on Tuesday, March 06 2007 @ 11:20 PM EST
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| Authored by: Anonymous on Monday, March 05 2007 @ 09:12 PM EST |
Since todaya was about tortious damages, I wonder if there are any claims about
the torturous damages SCO is doing to the marketplace.
Gosh I just wonder if we will ever be done with this mess. I cannot see for the
life of me why they continue this legal joke. The SCO lawyers must recognize by
now that this is a farcical waste of what few dollars are left in the SCO
warchest. Microsoft must even be realizing that this is a lost cause, and have
certainly decided by now that they will have to protect themselves by continuing
their investment in obfuscations of the SMB code (to make SAMBA more difficult
to remain compatible), making more hidden calls in the MFC class libraries to
make it more difficult to reverse engineer their garbage on a clean platform,
etc. And finally, every day Windoze loses more and market share to Apple OSX
(and hehe OSX86) and Linux. At least they (MS) don't seem to be putting so much
money in FUD campaigns.
mdw ;-)[ Reply to This | # ]
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| Authored by: JamesK on Monday, March 05 2007 @ 09:42 PM EST |
"In 1990 IBM stated that Linux was not ready for business."
Of course it wasn't ready in 1990. It hadn't been created yet. ;-)
---
DRM 'manages access' in the same way that jail 'manages freedom.'
[ Reply to This | # ]
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| Authored by: Gerry on Monday, March 05 2007 @ 09:56 PM EST |
Thanks to Mathfox, ruidh and Chris Brown for attending and writing the reports.
It didn't sound like a very exciting day, as ruidh said.[ Reply to This | # ]
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| Authored by: kozmcrae on Monday, March 05 2007 @ 10:22 PM EST |
Oh wait, I'm reading.
"He said that in 1988 SCO had 90% of the Unix on Intel market. In 1990 IBM
stated that Linux was not ready for business."
If Chris Brown got that right then Mr. James' remark is right up there with
Linux version 2.7. What other companies was SCO in 1988? And in 1990 Linux
wasn't even a twinkle in Linus Torvalds' eye.
Finally, some advice for Mr. James. Avoid using the word
"alternative" as in "...it's an alternative theory of
interference." It sounds too close to "alternate universe",
which where your case is firmly planted.
Richard
---
Darl, have you been lying to us? Yup.[ Reply to This | # ]
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| Authored by: sumzero on Monday, March 05 2007 @ 10:31 PM EST |
"in 1988 SCO had 90% of the Unix on Intel market"
scog did not exist in 1988. scog are not santa cruz operation, but nice implied
damage attempt.
sum.zero[ Reply to This | # ]
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| Authored by: entre on Monday, March 05 2007 @ 11:55 PM EST |
Was it safe for mathfox to be at the hearings? Who knows what SCOX would ask him
if the knew he was present in the courthouse. "Where is PJ?, Is that
you?" Just a though and cheers for taking the chance! [ Reply to This | # ]
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| Authored by: tknarr on Tuesday, March 06 2007 @ 03:09 AM EST |
When SCO talkes about disputes over the facts in the tortious-interference
claim, they gloss over a point. Yes, SCO disputes IBM's claims as to the facts.
That's not enough to prevent summary judgement, though. There has to be a
dispute about material facts such that a jury might decide either way. And
that's where SCO handwaves. IBM isn't just denying interference, they're
presenting declarations from the people involved at those companies that IBM
didn't interfere. That's evidence. SCO brings to the table... nothing.
Nothing but their statement that those companys couldn't have changed
their positions in re SCO for the reasons stated in the declarations. No
evidence, not even circumstancial evidence, to support their position. So if a
jury is faced with a question where all the evidence supports only one side, how
could a reasonable jury rule for the side with no evidence? They can't, not and
still be reasonable. Which means the judge can decide the matter. Or he can pass
it to the jury if he wants. But SCO hasn't provided enough to force him
to pass it to the jury, not by a long shot. [ Reply to This | # ]
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| Authored by: raya on Tuesday, March 06 2007 @ 03:43 AM EST |
"Reports from a reliable (SCO) source "
oxymoron ?[ Reply to This | # ]
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| Authored by: Ian Al on Tuesday, March 06 2007 @ 04:06 AM EST |
Or 'Damages as a transferrable asset'.
The judge posed an interesting question about the Monterey contract which echos
back to the sale of DrDOS from Novell to Caldera. Included in the Novell sale
was the right to sue Microsoft for damages against Novell with a proportion of
any damages won in court going back to Novell. Microsoft lost and, as far as we
know, Novell got pots of money.
The point is that the damages transferred as an asset to Caldera almost
independantly of the DrDOS technical assets. The courts obviously considered
that Caldera had standing to sue for those damages.
The judge appears to be asking 'Could SCOG have acquired the right to sue for
damages independantly of the blocking of the transfer of the Monterey assets by
IBM?'. The damages would be those against Santa Cruz and not SCOG.
IBM pointed out that there was nothing in the contract about acquisition of
damages. Which contract? This would have needed to be the contract for the
transfer of assets from Santa Cruz to Caldera. Since this was not a copyright
transfer it did not have to be in writing with specificity. However, since the
Monterey contract was specifically blocked, then there would, surely, have to be
a writing to separately transfer the asset of damages.
I think the judge was bored. This is crossing the 'Ts' and putting little
circles over the 'I's. As IBM pointed out, any dispute in the contract (with the
'any' meaning 'any and every' because of the language in the Monterey contract)
was subject to the two-year limitation clause which is well exceeded.
Even if the lack of standing and the limitation clause are overlooked, SCOG
still have to cross the barrier of not presenting competent evidence of damage
in violation of the court's order and not presenting competent evidence of
unlawful interferance in Santa Cruz' or SCOG's business.
However, it is clear why Judge Kimball did not rule from the bench: he was
unable to do that and keep a straight face.
---
Regards
Ian Al[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 06 2007 @ 05:08 AM EST |
Judge Kimball interjected, asking if that isn't hearsay. Mr. James
replied that it is, but that it demonstrates a controversy of fact requiring a
trial and the ability to impugn the witness because of conflicting testimony.
SCO said that themselves: their goal now is to live long
enough to reach trial. I haven't seen cases like that before - where party that
desperately tries to sandbag summery judgment.
What are the chances? My
friend opined that in similar cases judges often let the case go to trial:
during trial many tricks become impossible and SCO would have to come clear on
all accounts. Though of course if they have no case ... [ Reply to This | # ]
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| Authored by: DaveJakeman on Tuesday, March 06 2007 @ 05:26 AM EST |
I find it fascinating that IBM forewent their rebuttal time. The impression I
get from that decision is IBM are feeling supremely confident. It's as if Judge
Kimball has reached a crystal clear understanding of what's happening in this
case and IBM knows that Kimball knows. IBM understands this well enough to know
that they don't need to rebut SCO's distortions. Maybe something happened
whilst the courtroom was vacated, or maybe it's just IBM's steadfast consistency
with the truth and SCO's consistent failure with same. IBM have their track
record now and so does SCO. It really is like comparing black to white.
Case-wise (as well as financially), SCO is on a downhill slide and their
momentum is carrying them in an unstoppable fashion, ever closer to the edge of
the pit. Come to think of it, when was the last time the Court granted SCO in
SCO vs IBM any major concession, if one discounts having to read their
repetitive motions and silly arguments? Seems like a while now.
---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.[ Reply to This | # ]
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- If SCO's only "evidence" is hearsay - Authored by: Anonymous on Tuesday, March 06 2007 @ 08:56 AM EST
- Wot, no rebuttal? - Authored by: rsteinmetz70112 on Tuesday, March 06 2007 @ 11:25 AM EST
- Wot, no rebuttal? - Authored by: tknarr on Tuesday, March 06 2007 @ 11:38 AM EST
- Smart move. - Authored by: Jaywalk on Tuesday, March 06 2007 @ 02:55 PM EST
- Wot, no rebuttal? - Authored by: Anonymous on Tuesday, March 06 2007 @ 05:09 PM EST
- Wot, no rebuttal? - Authored by: Anonymous on Tuesday, March 06 2007 @ 05:35 PM EST
- Wot, no rebuttal? - Authored by: Yossarian on Tuesday, March 06 2007 @ 07:36 PM EST
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| Authored by: analyzer on Tuesday, March 06 2007 @ 05:27 AM EST |
Thanks all for the reports.
This last line jumped out at
me
It was a long afternoon and we broke with IBM opting not to
take its rebuttal time. Both motions were taken under
advisement.
Does TSG really have so little in there that
IBM sees no need to rebutt ANY of the Monteray arguments
at all?
I don't know about anybody else but I find this to be quite
astounding.
Be good peeps :)
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| Authored by: Anonymous on Tuesday, March 06 2007 @ 07:15 AM EST |
Not to belabor this since it is already being discussed ...
I see that M$ is now doing is "Let's make nice" and "We are
rightous" acts. From past performances this usually
preceeds the part where the knife comes out and stabs the
unwitting recipient. Don't be fooled and buy into all this
M$ drivel: OOXML war over? Ya, right - this is the embrace
part. After Google for copyright violations? Just a
distraction so you don't start to wake up and see that M$
is the worst respector of all of other's ip.
Just remember that when M$ speaks, pay special attention
to the stage sides and back as well as your own back.
Oh, watch for trap doors and falling sandbags too.
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| Authored by: Anonymous on Tuesday, March 06 2007 @ 08:59 AM EST |
I just about laughed up a lung at "mountains of evidence" SCO accusing anyone of
behaving erratically.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 06 2007 @ 12:46 PM EST |
A patent has to be documented such that any practitioner of the art can
replicate it or it is not valid. So any valid patents MS have must document
there art.[ Reply to This | # ]
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| Authored by: StudioBob on Tuesday, March 06 2007 @ 04:02 PM EST |
The story in Deseret Times, under the headline "SCO says IBM hurt profits",
has, IMOH, a pro-SCO bias.
Well, it might not be intentional (pssst -
want to buy this old bridge in New York that's just come on the market?), but
the reader has to have an open mind and read all the way to the end to see that
both sides are represented. But a busy person who reads the lead and skims the
first four or five paragraphs will come away with the impression that SCO just
won the case.
All the words are there, but the way the words are
arranged creates that impression. To see what I mean, try reading just the
boldface words (my emphasis) in these two paragraphs:
...
"In a
hearing before U.S. District Judge Dale Kimball, an attorney for
Lindon-based SCO said IBM "pressured" companies to cut off their
relationships with SCO. And "the effect on SCO was devastating and it
was immediate," Mark James said. "
...
" On the interference
claims, among companies SCO claims IBM directly contacted are BayStar
Capital Management, Intel, Oracle, Computer Associates, Hewlett Packard and
Novell. An IBM representative talked to those companies after IBM allegedly
put Unix into Linux and began pursuing its own Linux strategy, SCO
alleges."
...
See what I mean? An investor rapidly skimming the news
on a number of his investments, for example, might see a "buy this" message. It
would be the investor's own fault for not reading all the way to the end, of
course, but I'm sure you see how easy it is to be
misled.
---
Karma comes around
...Especially to liars and thieves. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 06 2007 @ 05:11 PM EST |
I was under the impression that SCO needed to provide facts to support their
position. All I saw was hand waving, and statements that a jury would be needed
to prove this. So what do you think, should a weak statement like that be
enough to toss out the SJ's, or do they need to show some facts? I suspect that
both IBM and the judge know no more about this case now then they did before the
they wrote the SJ's. I know I don't.
My current fear is that we will know nothing more than we do now when the case
is closed.
Bill [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 06 2007 @ 07:03 PM EST |
Because Kimball can't just say "motion granted". He's got to write
something that says exactly why he amputated a major part of the case, with
reasoning that is solid enough that SCO cannot (successfully) appeal the
decision.
Much as I want the instant gratification of a quick decision, I even more want a
decision that will stand.
MSS2[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 07 2007 @ 10:03 AM EST |
> the ability to impugn the witness because of conflicting testimony
What would be the legal basis for that and how would that work technically?
We have one witness A who testified "P" and another witness B who
testified, not "non P", mind you, but simply "B said 'non
P'". Is that enough to challenge a witness' testimony?
I was under the impression "conflicting testimony" meant a witness
testifying in a contradictory manner (be it before the same court or, in the
same situation, before another court). Something like "before this court, A
claimed he was born blind, yet before a Nevada court he claimed he became blind
at the age of 7".
Can someone more knowledgable in US law shed some light on this?
___
magicmulder
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