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SCO Tells Court in 2 Sur-Surreplies to Let It Use All Its Theories |
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Friday, May 11 2007 @ 11:32 PM EDT
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Some new goodies in SCO v. IBM: 1055 -
SCO's Sur-Surreply Memorandum in Further Support of SCO's Motion to Amend its December 2005 Submission
1056 - SCO's Sur-Surreply Memorandum in Further Support of its Objections to the Magistrate Judge's Order on IBM's Motion to Confine
Yes, two sur-sur-replies in which SCO begs the court to let it use some more of its theories and evidence that it didn't reveal by the deadline, please. Except they aren't all that polite, I don't think. SCO wasn't obligated, it argues in 1056, to have its experts finish their analysis by December 22, 2005:
The Magistrate Judge's Order confuses the obligation to disclose misused material with the accumulation of supporting evidence and with the theories of literal and non-literal infringement that are naturally found in experts, and are clearly allowed by law in this Circuit. Well, that's a winning argument: the judge got confused. Another argument is that the court's orders were not clear. Right. That's the ticket. SCO didn't know it was supposed to do what all those court orders said it should do. What SCO wants is what it always wants, to get to do what it wants: SCO respectfully submits, for the reasons stated above and in SCO's previous memoranda, that the Court should reverse the Magistrate Judge's Order and permit SCO to proceed with all theories of liability disclosed in its expert reports, including copyright infringement based on both literal and non-literal elements of the copyrighted works as well as the selection, arrangement, and coordination of elements in the copyrighted works. This wouldn't be about trying to avoid having to pay for all those public comments by Darl about a mountain of copyright infringement, by any chance, would it?
I haven't yet had a chance to read them carefully, but I see one argument that is interesting. In 1055, SCO argues that even if IBM's motion to confine was rightly decided, and a sanction was appropriate back then, SCO's motion to amend should be granted because there's lots of time now before trial, since Novell is going first, so "any possible prejudice can be cured" while we all wait for Novell to be decided. What I haven't sorted out yet is who this memo goes to. Did SCO get permission to file two sur-sur-replies, one to each judge? I'll look into that. You have to hand it to BS&F. They think of absolutely every possible argument. But the net effect, which they probably don't point out, would be that the court's many orders to put all allegedly infringed material on the table by the deadline would be flouted and SCO would be sanction-free and able to present all the materials it failed to present by the deadline. Somehow that doesn't sound quite right. Why would any court reward a party for disobeying its orders? The issue wasn't just prejudice to IBM, which remains, according to IBM. The issue is obeying court orders. Well, you argue what you think you can. The docket also shows some new deadlines: #1053 - Order Re Extension of Deadlines
#1052 - Order Granting Stipulation and Joint Motion for Extension of Time
The first Order, 1053, gives SCO until May 18 to file its Reply Memo in Support of its Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence and its Reply Memo in Support of its Objections to the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence. The second order, 1052, represents a change in the schedule:
Rule 26(a)(3) Disclosures are now due on June 13;
The deadline for exchanging jury instructions is now June 27;
Motions in Limine are now due on July 9 The May 25 deadline for responding to requests for admission stands unchanged.
As you can see on the IBM Timeline page, these are not big changes. The Motions in Limine deadline, for example, was June 4, and now it's July 9. The jury instructions deadline was May 28; now it's June 27; and the Rule 26(a)(3) disclosure deadline was May 14 and now it's June 13. It probably just means everyone is scrambling to meet the deadlines, and there are a few items still up in the air, so they agreed to give each other a little more time.
Here is the complete Docket, with all the entries, and as you can see, there is a bit of a mixup, so it's possible that I'm missing something:
1048 -
Filed & Entered: 05/10/2007
Terminated: 05/11/2007
Motion for Extension of Time
Docket Text: Stipulated MOTION for Extension of Time for Extension of Deadlines filed by Plaintiff SCO Group. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Normand, Edward)
1049 -
Filed & Entered: 05/11/2007
Order on Motion for Extension of Time
Docket Text: DISREGARD - SEE ENTRY [1052] for correct order on motion. ORDER granting [1048] Motion for Extension of Time. Signed by Judge Dale A. Kimball on 5/9/07. (blk) Modified on 5/11/2007 SEE ENTRY [1052] for correct order on motion (blk).
1050 -
Filed & Entered: 05/11/2007
Motion for Extension of Time to File Response/Reply
Docket Text: Stipulated MOTION for Extension of Time to File Response/Reply filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Text of Proposed Order) Motions referred to Brooke C. Wells.(Normand, Edward)
1051 -
Filed & Entered: 05/11/2007
Order on Motion for Extension of Time to File Response/Reply
Docket Text: DISREGARD- WRONG ORDER ENTERED FOR THIS MOTION THIS MOTION IS NOT RULED ON YET. ORDER granting [1050] Motion for Extension of Time to File Response/Reply Replies due by 5/18/2007.. Signed by Judge Dale A. Kimball on 5/11/07. (blk) Modified on 5/11/2007 (BLK).
1052 -
Filed & Entered: 05/11/2007
Order on Motion for Extension of Time
Docket Text: ORDER granting [1048] Motion for Extension of Time. Rule 26(a)(3) Disclosures due 6/13/07. Exchange of Jury Instructions due 6/27/07. Motions in Limine due 7/9/07. Signed by Judge Dale A. Kimball on 5/11/07. (blk)
1053 -
Filed & Entered: 05/11/2007
Order on Motion for Extension of Time to File Response/Reply
Docket Text: ORDER granting [1047] Motion for Extension of Time to File Response/Reply re [986] MOTION FOR RECONSIDERATION BY THE MAGISTRATE COURT OF THE ORDER DENYING SCOS MOTION FOR RELIEF FROM IBMS SPOLIATION OF EVIDENCE. Replies due by 5/18/2007. Signed by Judge Dale A. Kimball on 5/11/07. (blk)
1054 -
Filed & Entered: 05/11/2007
Modification of Docket
Docket Text: Modification of Docket: Error: Clerk initially docketed orders on wrong motions. Correction: Clerk has corrected this and re-entered the orders with the correct motions. They have been sent out to all counsel as usual. re [1051] Order on Motion for Extension of Time to File Response/Reply, [1053] Order on Motion for Extension of Time to File Response/Reply, [1049] Order on Motion for Extension of Time, [1048] Stipulated MOTION for Extension of Time for Extension of Deadlines, [1052] Order on Motion for Extension of Time, [1047] Stipulated MOTION for Extension of Time to File Response/Reply as to [986] MOTION FOR RECONSIDERATION BY THE MAGISTRATE COURT OF THE ORDER DENYING SCOS MOTION FOR RELIEF FROM IBMS SPOLIATION OF EVIDENCE JointlyStipulated MOTION for Extension of Time to File Response/Reply as to [986] MOTION FOR RECONSIDERATION BY THE MAGISTRATE COURT OF THE ORDER DENYING SCOS MOTION FOR RELIEF FROM IBMS SPOLIATION OF EVIDENCE Jointly. (blk)
1055 -
Filed & Entered: 05/11/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [913] MOTION to Amend/Correct DECEMBER 2005 SUBMISSION (SCO's Sur-Surreply Memorandum) filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Exhibit A-B)(Normand, Edward)
1056 -
Filed & Entered: 05/11/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [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 No correct entry to link to:SCO's Sur-surreply re: Docket Entry 921 - MEMORANDUM IN SUPPORT re 899 Objection to Magistrate Judge Decision to District Court filed by Plaintiff SCO Group. filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Normand, Edward)
Court clerks are used to complexity. But this case, as you can see, is very likely having the clerk going home and telling his or her significant other that this case takes the cake. No one can keep all the SCO twists and turns straight, not even the clerk, and apparently not even the parties. The date for filing three motions, finalized in docket number 1050 as the 18th, was the 25th, then the 18th, or vice versa. Everyone is having trouble keeping up, including me. I note in 1050, however, that SCO has until May 25 to file its reply in support of its Motion, which IBM opposed, to Deem a Prospective Third-Party Deposition in Related Litigation to be a Deposition Taken in this Case As Well. SCO spelled it Perspective, but we know what it meant.
Here is SCO's Sur-Reply Memorandum in Further Support of SCO's Motion to Amend its December 2005 Submission (PDF), as text.
******************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, PC
[address]
[phone]
[fax]
David Boies (admitted pro hac vice)
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Devan V. Padmanabhan (admitted pro hac vice)
DORSEY & WHITNEY LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stuart Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for Plaintiff, 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. |
SCO'S SUR-SURREPLY
MEMORANDUM IN
FURTHER SUPPORT OF SCO'S
MOTION TO AMEND ITS
DECEMBER 2005 SUBMISSION
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells |
(1)
TABLE OF CONTENTS
Page |
PRELIMINARY STATEMENT |
1 |
ARGUMENT |
2 |
|
I. |
IBM CONFLATES THE MOTION TO AMEND WITH SCO'S
OBJECTIONS ON THE MOTION TO CONFINE, AND PROPOSES THE WRONG
STANDARD FOR DECIDING SCO'S MOTION TO AMEND. |
2 |
|
II. |
SCO ACTED IN GOOD FAITH WHEN INTERPRETING THE
SCHEDULING ORDER. |
4 |
|
III. |
IBM WOULD NOT BE PREJUDICED BY THE PROPOSED
AMENDMENT. |
6 |
|
|
A. |
IBM Overstates the Scope of Discovery and Expert Analysis
Needed To Rebut SCO's Evidence. |
6 |
|
|
1. |
IBM exaggerates the scope of analysis required. |
10 |
|
|
2. |
IBM exaggeration is shown by the discovery schedule. |
11 |
|
|
B. |
IBM Exaggerates the Scope of Material at Issue in SCO's
Proposed Amendment. |
7 |
|
|
C. |
Any Prejudice Is of IBM's Own Making. |
12 |
|
IV. |
SCO WOULD BE PREJUDICED IF NOT PERMITTED TO AMEND
ITS DECEMBER SUBMISSION. |
14 |
|
V. |
THE MATERIAL AT ISSUE WAS FULLY DISCLOSED IN SCO'S
EXPERTREPORTS. |
15 |
CONCLUSION |
16 |
i (2)
TABLE OF AUTHORITIES
Cases |
Page |
Hertz v. Luzenac Am., Inc.,
2006 WL 994431 (D. Colo. Apr. 13 , 2006) |
2, 3 |
Jones v. Thompson,
996 F.2d 261 (10th Cir. 1993) |
3, 4 |
Karbon v. Turner,
1991 WL 319976 (E.D. Wis. Dec. 16, 1991) |
2 |
Pub. Serv. Co. of N.H. v. Westinghouse Elec. Corp.,
685 F.Supp.1281 (D.N.H. 1988) |
2 |
Repp v. Webber,
132 F.3d 882 (2d Cir. 1997) |
14 |
Scott v. IBM Corp.,
196 F.R.D. 233 (D.N.J. 2000) |
2 |
United States v. Golyansky,
291 F.3d 1245 (10th Cir. 2002) |
2 |
Wolfson v. Lewis,
168 F.R.D. 530 (E.D. Pa. 1996) |
2 |
ii (3)
PRELIMINARY STATEMENT
IBM's Sur-Reply memorandum rehashes procedural arguments IBM has
already raised in its continued efforts to avoid the merits of
SCO's claims, and fails to distinguish or rebut the case law cited
by SCO supporting the motion to amend. IBM attempts to show that it
would be prejudiced if SCO's motion to amend were granted, but the
time remaining before trial, which has not been set, would be more
than sufficient to conduct limited additional discovery, if any
were necessary, and would actually allow more time for such
discovery than was contemplated under the initial scheduling order.
Furthermore, the only reason such discovery is necessary at all is
because IBM refused to depose SCO's experts regarding these issues
and instructed its experts not to address these aspects of SCO's
expert reports. Accordingly, IBM's claims of prejudice must
fail.
The amendment SCO seeks would allow the parties to resolve
whether the Linux operating system, used by millions across the
world, infringes SCO's intellectual property rights (assuming,
also, that the court rejects IBM's effort to artificially limit the
scope only to technology wholly within the Linux kernel). This is a
win-win scenario for IBM, which purported to seek resolution of the
question of infringement on the merits when it filed its
declaratory judgment action; for SCO, whose UNIX business has been
crippled by the improvement of Linux with its own intellectual
property; and for the public, which has a right to a resolution of
this dispute on the merits. SCO respectfully requests that its
motion to amend be granted.
1 (4)
ARGUMENT
I. IBM CONFLATES THE MOTION TO AMEND WITH SCO'S OBJECTIONS ON
THE MOTION TO CONFINE, AND PROPOSES THE WRONG STANDARD FOR DECIDING
SCO'S MOTION TO AMEND.
In its Sur-Reply, IBM has again conflated SCO's Motion to Amend
with SCO's Objections to the Order Granting IBM's Motion to
Confine, and this tactic continues to be misleading. While SCO
contends that IBM's motion to confine was wrongly decided, SCO's
Motion to Amend can and should be granted even if this Court
concludes that the Magistrate Judge's order on the motion to
confine was correct within the confines of the pretrial and trial
schedule that was in effect when IBM initially brought its motion.
What may be a justifiable decision, or even sanction, when trial is
just months away, becomes insupportable when a longer period before
trial is available and when any possible prejudice can be cured
during that time. See, e.g., United States v.
Golyansky, 291 F.3d 1245, 1250 (10th Cir. 2002); Hertz v.
Luzenac Am., Inc., No. CIVA04CV1961TBCBS, 2006 WL 994431, at
*21 (D. Colo. Apr. 13, 2006) (Ex. A); Scott v. IBM Corp.,
196 F.R.D. 233, 247 n.9 (D.N.J. 2000); cf. Wolfson v. Lewis,
168 F.R.D. 530, 533 (E.D. Pa. 1996); Karbon v. Turner, No.
91-C-337, 1991 WL 319976 at *2 (E.D. Wis. Dec. 16, 1991) (Ex. B);
Pub. Serv. Co. of N.H. v. Westinghouse Elec. Corp., 685
F.Supp.1281 (D.N.H. 1988).
Notwithstanding its Sur-Reply, IBM has made no effort to
distinguish the above cases (discussed in SCO's Reply at 1-2), and
has failed to explain why the Court should disregard the
controlling law in Golyansky that the concept of prejudice
does not encompass the expense of additional trial preparation and
that prejudice should be found only where there is some evidence
that a delayed disclosure impacted a party's ability to
prepare for trial. Rather, IBM
2 (5)
cites (at 36 n.31) an older Tenth Circuit case and a Colorado
district court case in an apparent attempt to show that the Court
should find it was prejudiced simply by the inconvenience of having
to conduct limited additional discovery before trial and respond to
SCO's claims on the merits. The cases do not support that
conclusion. In Jones v. Thompson, 996 F.2d 261, 264 (10th
Cir. 1993), the Tenth Circuit plainly recognized that the
plaintiffs' delay and noncompliance with court orders had
prejudiced the defendants ability to prepare their defense,
not simply additional expense in trial preparation. Id. ("At
the end of it all the Defendants had still not been able to
complete their deposition of George Jones nor even begin their
deposition of Peggy Jones.")
The other case IBM cites, Hertz v. Luzenac Am., Inc., No.
CIVA04CV1961TBCBS, 2006 WL 994431, at *21 (D. Colo. Apr. 13, 2006),
strongly supports SCO's position. In that case, the plaintiff tried
to prevent the defendant from using at trial certain damages
material that had not been disclosed in its Rule 26 disclosures.
The court concluded that the parties' failure to comply with its
Rule 26 disclosure obligations was not substantially justified. The
court nevertheless allowed the material to be used, noting that
"the original trial date was vacated for reasons completely
unrelated to the pending motions and alleged disclosure
violations," and that 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." Id. at. *21. The court further reasoned that, while
"counsel should have been more diligent in providing the required
disclosures, all parties are now on notice of the damages sought in
this action." Id. These considerations are plainly
applicable here. Regarding the language IBM quotes that delay and
mounting attorneys' fees can constitute prejudice, the
3 (6)
court actually noted "that consideration carries less weight in
this case given the attorney fees that must have been generated by
the parties' vituperative wrangling through the discovery process."
Id. Clearly, that observation applies here, where both
parties have had to file numerous motions to compel. Moreover,
SCO maintains, and has shown, that no delay would be
occasioned by SCO's motion.
In addition, IBM continues to argue that SCO has to show
"extremely compelling circumstances" for its motion to be granted.
This is not correct. The impetus and sole basis for the Motion to
Amend is the substantial change in trial schedule that has already
occurred — independent of SCO's motion. It is this change
that permits the motion to amend to be granted, without prejudice
to any party, and without any change to the trial date. In
addition, SCO has clearly shown "extremely compelling
circumstances" supporting the amendment. Permitting the amendment
is the only way to ensure that the question whether Linux infringes
SCO's intellectual property will be resolved on the merits.
Furthermore, as set forth below, IBM would have as much time to
conduct limited discovery and analysis of the material as
originally contemplated under the initial scheduling order.
Finally, denial of the amendment would prejudice SCO because it
would impede SCO's ability to seek redress for the infringement of
Linux. These factors constitute the "extremely compelling
circumstances" IBM contends are necessary.
II. SCO ACTED IN GOOD FAITH WHEN INTERPRETING THE SCHEDULING
ORDER.
In an effort to show that SCO has acted in bad faith with regard
to the material at issue in SCO's motion to amend, IBM points to
the Court's prior ruling on IBM's Motion to Limit. However, a
different question was at issue in the Court's resolution of IBM's
Motion to Limit:
4 (7)
whether certain material disclosed in SCO's December Submission
was identified with sufficient particularity, and whether SCO's
failure to identify the material with more particularity
constituted bad faith. The Court's finding regarding SCO's intent
as to that different material has no bearing here. The Court could
consistently find that SCO should have identified that different
material with more specificity,1 and also find that SCO's conduct with
regard to the material at issue in this motion was in good faith.
For instance, as discussed in SCO's opening brief and reply, as
well as SCO's objections, even if the Court concludes that the
material at issue in this motion should have been disclosed in
SCO's December Submission, it could conclude that SCO's actions
resulted from the reasonable confusion created by IBM's own
representations regarding when expert analysis should be disclosed,
and by the later deadline that was established for disclosure of
expert analysis. Accordingly, IBM's attempt to bootstrap the
Court's rulings on its Motion to Limit (which is still subject to a
motion for reconsideration) should be rejected.
IBM further argues (IBM Sur-Reply at 30) that SCO could not have
acted in good faith because it did not comply with "what the rules
require." But that misses the point, and disregards the law cited
by SCO. SCO contends here that its interpretation of what the rules
required, even if ultimately not correct, was reasonable and in
good faith. There is not a shred of evidence suggesting that SCO's
conduct in this regard was bad faith or willful, or anything other
than a different understanding than IBM now purports to have over
what was required by the unique scheduling order entered in this
case. In addition, the law favors disposition of cases on the
merits, even if a party did not comply with rules, where, as here,
sufficient time
5 (8)
exists before trial to cure any resulting prejudice. Both the
Hertz case cited by IBM and the other cases that SCO cites
support that proposition.
III. IBM WOULD NOT BE PREJUDICED BY THE PROPOSED
AMENDMENT.
A. IBM Overstates the Scope of Discovery and Expert Analysis
Needed To Rebut SCO's Evidence.
IBM asserts that allowing SCO's motion to amend would require
extensive additional discovery and expert analysis. Indeed, IBM
claims that SCO's expert reports "challenge essentially every file
in Linux," that IBM would have to conduct an "arduous"
"line-by-line" analysis of "over one hundred thousand files" of
Linux source code, and that such discovery and analysis would take
"at least an additional year." (IBM Sur-Reply at 30, 32-34.) IBM
would like to convince the Court that, in order to defend
effectively against the evidence of infringement presented in SCO's
expert reports, IBM would have to analyze every single file in
Linux with excruciating detail. This is far from true. Indeed, this
file-level myopia is misguided at best and disingenuous at
worst.
6 (9)
B. IBM Exaggerates the Scope of Material at Issue in SCO's
Proposed Amendment.
IBM has significantly exaggerated the scope of material at issue
in SCO's Motion to Amend in order to create an appearance of
prejudice. Dr. Cargill's copyright infringement analysis does not,
as IBM contends (IBM Sur-Reply at 17), "challenge essentially every
file in Linux." Rather, Dr. Cargill's expert reports clearly show
that Linux has copied the selection, arrangement, and coordination
of the following literal and non-literal UNIX elements: (1) the
UNIX structure embodied in 96 copied system calls, (2) the
combination of 8 characteristics that make up the UNIX file system,
(3) the UNIX Streams module, and (4) the ELF format. This material
does not implicate "every file in Linux." (Cargill Expert Report
dated May 15, 2006 at 16-17, 23-36, 41-52, 57-58, 63-81 (11-11-06
Decl. of Brent Hatch, Ex. 274 [DEN 876]); Cargill Expert Report
dated August 28, 2006 at 20-22, 31-34 (11-11-06 Decl. of Brent
Hatch, Ex. 276 [DEN 876]).) It is neither necessary nor useful to
perform a micro-grain, line-by-line, file-by-file analysis of Linux
to try to rebut the validity of SCO's non-literal infringement
evidence. Essentially, SCO's non-literal infringement evidence
shows that, even if the lines and files of source code in Linux
were not copied from UNIX,2 the structural organization of such lines
and files was copied from UNIX.
The facts here are analogous to a photo mosaic, in which
hundreds or thousands of individual photographs are organized in a
manner that conveys a larger image. SCO's evidence shows that the
overall image conveyed by Linux is copied from UNIX, even if the
individual photographs that make up the mosaic are not. In
response, IBM's position is to (1) ignore SCO's
7 (10)
argument that the overall image was copied from UNIX, (2) insist
that SCO is actually challenging each individual photograph used to
make up the overall image, and (3) argue that analyzing each
individual photograph would require extensive additional discovery.
In fact, an analysis of each individual photograph would be
irrelevant to SCO's claims of infringement.
In support of this code-level misdirection, IBM argues (IBM
Sur-Reply at 34) that analysis of the non-literal infringement
shown in SCO's expert reports "ultimately requires the same arduous
code comparison as is required in order to respond to SCO's literal
claims" because "just as a novel's plot can always be found in the
novel's text, so too are the more abstract elements claimed by SCO
embodied in the system's code." It is true that non-literal
elements of UNIX and Linux are embodied in literal code. But this
does not mean that IBM must perform a line-by-line analysis of over
100,000 files of source code in Linux in order to rebut SCO's
expert reports. This is true for several reasons.
As described above, even if IBM could prove that every line
of code in Linux was "independently created," which it cannot,
that would not show that the non-literal organization of Linux was
independently created. IBM's argument that an "arduous"
literal-level analysis is necessary to rebut SCO's non-literal
infringement evidence is no different than claiming that every
grain of sand in a sand castle must be analyzed to show that the
overall design was not taken from a pre-existing sand castle, or
that each word of a book must be analyzed in order to show that
chapter order and headings were not taken from a pre-existing book.
Such analysis is neither necessary or helpful. Non-literal
infringement is a well established aspect of copyright law that IBM
should expect to address in connection with its defense of
Linux.
8 (11)
IBM's argument is especially disingenuous because SCO has
identified the precise literal and non-literal elements it claims
are infringed by Linux. IBM further characterizes SCO's expert
reports as challenging "essentially every line" of Linux, but that
is not true. As discussed above, SCO's expert reports identify as
the infringed material the selection, coordination, and arrangement
of (1) the UNIX structure embodied in 96 copied system calls, (2)
the combination of 8 characteristics that make up the UNIX file
system, (3) the UNIX Streams module, and (4) the ELF format.
(Cargill Expert Report dated May 15, 2006 at 16-17, 23-36, 41-52,
57-58, 63-81 (11-11-06 Decl. of Brent Hatch, Ex. 274 [DEN 876]);
Cargill Expert Report dated August 28, 2006 at 20-22, 31-34
(11-11-06 Decl. of Brent Hatch, Ex. 276 [DEN 876]).) To the extent
IBM would have to analyze any literal source code, such
analysis would be limited to (1) the 96 identified system calls
embodying the copied UNIX structure, (2) the source code
implementing the 8 identified UNIX file system characteristics, (3)
the source code implementing the ELF format, and (4) the source
code implementing the UNIX Streams module. In addition, multiple
system calls, ELF, and multiple stream files are indisputably
included in SCO's December Submission, and IBM must deal with those
aspects of SCO's infringement claim in any event.
Because these infringed elements are precisely defined in SCO's
expert reports, SCO's statements from 2004 suggesting that all
Linux and UNIX source code should be analyzed — on which IBM
relies so heavily — are inapplicable to the current
situation. (See IBM Sur-Reply at 34-35.) These statements
were made at a time when the scope of the infringement had not been
determined. Because the scope of infringement has been narrowed to
precisely identified elements, IBM would only have to analyze only
those elements. Furthermore, there is no need
9 (12)
to conduct discovery on every Linux developer, as IBM claims
(IBM Sur-Reply at 33 n.26), when SCO has identified the specific
material on which its claims are based.
1. IBM exaggerates the scope of analysis required.
IBM also errs in purporting to describe the analysis necessary
to perform on the material identified as infringing in SCO's expert
reports. IBM lists eleven characteristics that it would purportedly
have to analyze in relation to each individual file in Linux if it
were forced to rebut the evidence of infringement in SCO's expert
reports. (IBM Sur-Reply at 31-32.) However, IBM's experts did not
even analyze all of these characteristics with regard to individual
files that were explicitly listed in SCO's December Submission.
Rather, IBM simply performed an analysis on a representative line
or file and applied its conclusions to all lines or files of that
type. For example:
-
IBM's experts analyzed a single structure declaration, a single
#define statement, and a single function prototype, and then
applied conclusions regarding originality to all "such" structure
declarations, #define statements, and function prototypes (material
contained in header files). (Kernighan Expert Report dated May 18,
2006 at 13-15 (09-25-06 Decl. of Todd Shaughnessy, Ex. 213 [DEN
774]).) This analysis is also applied to the ELF-related source
code. (Id. at 23).
-
IBM's experts made blanket idea/expression and merger
conclusions for header files in general, rather than analyzing
individual lines of code or individual header files. (Id. at
20.)
-
Although IBM says it evaluated the "significance" of code in
relation to System V as a whole, its expert reports show no
evidence of this evaluation other than a quantitative analysis,
which does not require analysis of individual files and is not
time-consuming. (Id. at 29-31; Kernighan & Davis Expert Report
dated July 17, 2006 at 41 (09-25-06 Decl. of Todd Shaughnessy, Ex.
214 [DEN 774]); Kernighan & Davis Expert Report dated August
28, 2006 at 11-18 (09-25-06 Decl. of Todd Shaughnessy, Ex. 215 [DEN
774]).)
-
In other words, IBM's lawyers now argue that IBM would have to
undertake an "arduous" line-by-line analysis of every file in Linux
with regard to numerous characteristics in order to rebut the
evidence in SCO's expert reports, because this is
10 (13)
the only way that IBM can show it was prejudiced, and avoid
having to rebut SCO's evidence on the merits. However, IBM's
experts did not even undertake this individualized analysis with
regard to the code that was identified in SCO's December Submission
and that they knew they had to analyze.
IBM also exaggerates the non-literal analysis it would have to
perform by listing duplicative and unnecessary types of analysis.
For example, IBM lists (IBM Sur-Reply at 32-33) "[a]nalyz[ing] the
history of the particular file system technology," "[r]esearch[ing]
texts relating to the technology," and "[t]rac[ing] the creation of
the allegedly infringing elements" as separate endeavors to give
the appearance of burdensome work, but these are simply different
ways to characterize the same analysis. Also, it is not necessary
to analyze the originality of each file system
characteristic mentioned in SCO's expert reports, because SCO's
claim is that the combination of non-literal elements
infringes. This is simply another example of IBM's focus on
individual elements when SCO is claiming infringement of the
non-literal combination of elements.
2. IBM's exaggeration is shown by the discovery
schedule.
IBM's dramatic exaggeration of the time and effort needed to
rebut SCO's evidence of infringement assumes that the original
discovery calendar was entirely flawed. The original discovery
schedule called for IBM to submit its first expert reports five
months after submission of SCO's December Submission. IBM's current
claim that it would need at least an extra year to analyze the
material in SCO's expert reports amounts to a post-hoc attempt to
amend the discovery schedule to its benefit.3 Furthermore, nearly a full
year has passed since IBM received Dr. Cargill's first expert
report, which contained a precise description of SCO's
11 (14)
infringement theory and the evidence on which it is based. As
described more thoroughly below, any possible prejudice or delay
that IBM now faces, after receipt of Dr. Cargill's expert
report, is the result of IBM's conscious, tactical decision to
ignore the content of that report — even refusing to depose
him on contents IBM contended should not have been included. If IBM
had dealt with the evidence presented instead of manufacturing
prejudice to gain a tactical advantage, this would be a
non-issue.
Moreover, IBM ignores SCO's argument in its reply (at 4-5) that,
even if IBM were to start the analysis now of the material SCO
seeks to add to its December Submission, IBM would have more
time than originally allowed under the scheduling order that
was in place at the time of the December Submission. Accordingly,
there is no possible prejudice to IBM.
C. Any Prejudice Is of IBM's Own Making.
Almost a full year has passed since IBM received a copy of Dr.
Cargill's first expert report. This is more than twice the time
between SCO's filing of its December Submission and the parties'
submission of initial expert reports. This is time in which IBM
could have analyzed the material contained in SCO's expert reports.
Instead, hoping to obtain a discovery windfall and exclude SCO's
evidence of infringement, IBM has tactically refused to analyze
such material. Any delay caused by allowing consideration of such
material now is due to IBM's year-long refusal to address such
material.
IBM argues that, although trial date is not set, the discovery
required to address the material in SCO's expert reports would
delay any contemplated trial date and a new round of briefing would
be required to address such material. (IBM Sur-Reply at 35-36.)
First, as described above, the discovery required to address such
material is not nearly as extensive as
12 (15)
IBM makes it out to be and the original discovery calendar
provided only five months from the time of the December Submission
to undertake such analysis. IBM chose not to take any discovery on
the material it challenges, told its experts not to analyze such
material, and disregarded SCO's arguments relating to such material
as a tactical measure so that it would be able to avoid dealing
with such material. To now claim that it would be prejudiced by
having to undergo a new round of briefing because it made a
conscious decision to ignore the material in SCO's expert reports
is simply complaining about the bed IBM made for itself.
IBM also claims that the prejudice caused by any delay will be
incurable, because such delay will perpetuate "fear, uncertainty,
and doubt" regarding Linux, "relitigating" issues will be
expensive, and IBM relied on SCO's identification of 326 lines "of
Linux." Any such problems are the direct result of IBM's own
actions. First, SCO specifically identified over 1,000 lines of
Linux kernel and non-kernel source code as infringing in its
December Submission. IBM, not SCO, unilaterally limited its expert
reports and briefing to 326 lines of source code residing within
the Linux kernel. Accordingly, IBM has no basis for claiming that
it relied on SCO's supposed identification of 326 lines of source
code in its December Submission. IBM's unilateral decision to
ignore the thousands of lines non-kernel Linux source code
identified in SCO's December Submission, not any action by
SCO, has ensured that the "fear, uncertainty, and doubt"
surrounding the Linux operating system will remain after resolution
of IBM's motion for summary judgment on its tenth counterclaim,
because the majority of the infringing material will remain
unadjudicated. Finally, any expense incurred by IBM due to
"relitigating" this matter is directly caused by IBM's tactical
refusal to rebut SCO's evidence and arguments that Linux infringes
non-literal elements of UNIX when it had the opportunity to do
so.
13 (16)
IBM also exaggerates the extent to which this issue would impact
summary judgment briefing. The arguments raised by IBM in its
briefing on copyright issues would also apply to the material at
issue in this motion. Any additional briefing focused on new
evidence purporting to contravene the evidence in SCO's expert
reports could do no more than raise new disputed issues of material
fact that preclude summary judgment. See Repp v.
Webber, 132 F.3d 882, 890-91 (2d Cir. 1997). IBM cannot
legitimately claim prejudice based on the time needed to produce
briefs that would have no effect on the resolution of IBM's motions
for summary judgment.4 Moreover, IBM had received all the
material at issue here well before it filed its summary judgment
motions. However, if, after analysis, IBM felt it necessary to
bring an extremely narrow summary judgment motion on limited issues
raised only by the material at issue in SCO's motion, there would
be time to do so before trial.
IV. SCO WOULD BE PREJUDICED IF NOT PERMITTED TO AMEND ITS
DECEMBER SUBMISSION.
Notably, in its opposition and again in its sur-reply, IBM has
not attempted to argue that SCO would not be prejudiced if its
Motion to Amend is not granted. Rather, IBM essentially contends
that the prejudice to SCO is warranted and should be inflicted,
even though denial of the motion may preclude a full resolution on
the merits of SCO's claims that Linux infringes its intellectual
property. In its sur-reply, IBM argues (at 22 n.22) that SCO would
simply be losing the ability to conduct a trial by ambush. This
allegation could not be further from the truth. As discussed, SCO
reasonably believed (and maintains) that its interpretation of
the
14 (17)
scheduling order was correct, and that IBM already knew
in any event that SCO was contending that the structure of Linux
infringes its UNIX copyrights (a fact IBM has not denied). The
prejudice to SCO arises from the fact that IBM would have
substantial portions of its timely disclosed expert analysis
excluded based on the fact that SCO reasonably interpreted the
requirements of the scheduling order, and complied with what it
believed those requirements to be — even though more than
enough time exists before trial to correct the mistake and avoid
prejudice to either party.
IBM claims that SCO is "eliminating" one of the categories of
discovery sanctions from the Court's arsenal. This is not so. When
considering what sanction to impose, one of the fundamental
considerations in the Tenth Circuit and elsewhere —
regardless of whether the party was at fault — is the amount
of time before trial, because that determines whether any prejudice
can be cured. This motion is predicated on the fact that, in light
of the adjustment of the trial schedule, any prejudice that might
have existed can now be cured.
V. THE MATERIAL AT ISSUE WAS FULLY DISCLOSED IN SCO'S EXPERT
REPORTS.
IBM incorrectly argues that "the material at issue was not fully
disclosed in SCO's expert reports." (IBM Sur-Reply at 38.) This is,
first of all, an entirely new issue raised in the Sur- Reply. The
basis for IBM's complaint in its Motion to Confine, which gave rise
to the instant motion, was that the SCO's expert reports contained
information beyond the December Submission, not that material in
the expert reports was insufficiently identified. Furthermore,
IBM's argument ignores SCO's representations regarding the Rochkind
material at issue. IBM claims that a segment of material in
Rochkind's report was not sufficiently identified (IBM Resp. at
33), yet SCO has explicitly stated that it does not allege misuse
of such material (SCO Reply
15 (18)
at 7). Such material is simply supporting evidence that a
particular Linux contributor, identified in the December Submission
as contributing specifically identified testing technology, did in
fact work in this area of technology for IBM. Although IBM argues
that "there would be no reason for SCO's motion" if such material
were not allegedly misused material (IBM Sur-Reply at 38), this is
not true. Because of the nature of the Magistrate Judge's order,
and IBM's interpretation thereof, SCO needs clarification that
material that is not alleged to be misused, but does support a
finding of misuse, will not be excluded from this case, and
therefore seeks to add that material to its December
Submission.
In short, IBM has everything it needs in SCO's expert reports to
conduct whatever analysis it deems necessary to respond to the
material SCO is seeking to add to its December Submission.
Moreover, IBM had a full and complete opportunity to cross examine
SCO's experts on these issues at deposition, and would have time to
conduct limited additional discovery before trial.
CONCLUSION
SCO respectfully submits, for the reasons stated above and in
SCO's previous memoranda, that the Court should grant SCO's Motion
to Amend and permit SCO to proceed with all theories of liability
disclosed in its expert reports, including copyright infringement
based on both literal and non-literal elements of the copyrighted
works as well as the selection, arrangement, and coordination of
elements in the copyrighted works.
16 (19)
DATED this 11th day of May, 2007.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
David Boies
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
DORSEY & WHITNEY LLP
Devan V. Padmanabhan
Counsel for The SCO Group, Inc.
By: /s/ Edward Normand
17 (20)
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby
certifies that a true and correct copy of the foregoing SCO'S
SUR-SURREPLY MEMORANDUM IN FURTHER SUPPORT OF SCO'S MOTION TO AMEND
ITS DECEMBER 2005 SUBMISSION was served on
Defendant/Counterclaim-Plaintiff, International Business Machines
Corporation, on this 11th day of May, 2007, via CM/ECF to the
following:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]
/s/ Edward Normand
18 (21)
|
SCO contends it did act in good faith with respect that that
material, and that issue is the subject of a motion for
reconsideration that is still pending. |
|
SCO's evidence demonstrates that numerous lines of Linux source
code were copied from UNIX source code. (See, e.g., Cargill
Expert Report dated May 15, 2006 at 81-82 (11-11-06 Decl. of Brent
Hatch, Ex. 274 [DEN 876]).) |
|
Notably, Dr. Cargill's analysis of UNIX and Linux described in
his first expert report was conducted within the 5 month period
between submission of SCO's December Submission and submission of
his report. |
|
As discussed above, IBM directed its expert witnesses to ignore
SCO's evidence showing infringement of non-literal elements.
Accordingly, IBM has thus far produced no evidence contravening
SCO's evidence of non-literal infringement. (SCO's Memorandum in
Opposition to IBM's Motion for Summary Judgment on its Claim for
Declaratory Judgment of Non-Infringement (IBM's 10th Counterclaim)
at 58-59.) |
|
|
Authored by: feldegast on Friday, May 11 2007 @ 11:48 PM EDT |
So they can be fixed
---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
|
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Authored by: AveryAndrews on Friday, May 11 2007 @ 11:53 PM EDT |
OT [ Reply to This | # ]
|
- So perhaps the new MRT suit - Authored by: AveryAndrews on Friday, May 11 2007 @ 11:56 PM EDT
- Printing with Linux - Authored by: josmith42 on Saturday, May 12 2007 @ 12:25 AM EDT
- Remote-access program for Windows - Authored by: cmc on Saturday, May 12 2007 @ 02:24 AM EDT
- *principal analyst thing* NewsPick re:MS Have A Cult Religion? - Authored by: SilverWave on Saturday, May 12 2007 @ 07:51 AM EDT
- OT: M$ cult - Authored by: Peter H. Salus on Saturday, May 12 2007 @ 09:38 AM EDT
- FAA Warns Staff Against Using Windows Vista - Authored by: Anonymous on Saturday, May 12 2007 @ 10:33 AM EDT
- Boies gets another client - Authored by: free980211 on Saturday, May 12 2007 @ 10:55 AM EDT
- The real problem with MS - Novel deal for the customer. Is there a delayed "MS stink" factor? - Authored by: Anonymous on Saturday, May 12 2007 @ 11:34 AM EDT
- Microsoft and The Hitchhikers Guide to the Galaxy - Authored by: Nemesis on Saturday, May 12 2007 @ 12:05 PM EDT
- Can SCO later find an unanswered twist just in time?? - Authored by: Anonymous on Saturday, May 12 2007 @ 01:17 PM EDT
- OLPC Project Rollout Begins In Uruguay - Authored by: pallmall on Saturday, May 12 2007 @ 02:00 PM EDT
- Vista and Novell Netware - No client for Netware yet - Authored by: Anonymous on Saturday, May 12 2007 @ 06:10 PM EDT
- A Personal Request for advice - Authored by: Anonymous on Saturday, May 12 2007 @ 08:58 PM EDT
- Perspective? - Authored by: Anonymous on Monday, May 14 2007 @ 02:02 PM EDT
|
Authored by: Quila on Saturday, May 12 2007 @ 12:53 AM EDT |
Now we know concretely why SCO had no problems letting Novell go first. We
thought it was a dumb move, because Novell could kill the IBM case. But I'm sure
SCO had the excuse of a delayed IBM trial in mind when agreeing, and here they
use the delay they caused in order to try to get their way.
I really hope the judge sees through the charade.[ Reply to This | # ]
|
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Authored by: Anonymous on Saturday, May 12 2007 @ 01:42 AM EDT |
I'd say SCO was confused if it thought its failure to comply with court orders
meant IBM failed to comply, but that level of confusion would be mind boggling.
It's like the old "pronoun problem" in a Buggs Bunny cartoon. The
case listed by SCO was for an extension where the other party failed to comply,
but it was *SCO* that failed to comply.[ Reply to This | # ]
|
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Authored by: Anonymous on Saturday, May 12 2007 @ 02:00 AM EDT |
So 1056 accuses the judge of confusing SCO's convoluted theories with reality.
I'm not sure how one should reply to that. It might actually be construed as a
compilment.
Why do they see a conflict with fulfilling their obligation to divulge evidence
with finishing expert reports? All they had to do is say, "This infringes,
this infringes, etc." The expert reports would provide evidence of *how*
it infringed. Yeah, it's just that simple. Instead of a Judy Bat, someone
needs to get out the Clue Bat.[ Reply to This | # ]
|
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Authored by: Anonymous on Saturday, May 12 2007 @ 02:34 AM EDT |
The only reason for all of this is to delay the Summary Judgements. It is clear
that the judge first wants this out of the way before granting IBM all their
Summary Judgements and deny all of SCO's.
So BSF will keep this up as long as they can to prevent the judge from coming
down for all those backlogged JS.[ Reply to This | # ]
|
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Authored by: Anonymous on Saturday, May 12 2007 @ 02:43 AM EDT |
They are an exclusive agent for new licensees. The are the exclusive licensee
for
the merged code after Project Monterey (IBM was part of the JDA which prevents
exclusivity from before that time) . Sorry, TSCOG that's not a very good
argument. So you do need to show the copyrights for anything before PM
ended. IBM just didn't belabor the obvious. TSCOG laid the explosive charges
in
their own building of this case and now IBM is just waiting for them to be set
off
so they can roll in the big equipment in to clean up the debris.[ Reply to This | # ]
|
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Authored by: Ian Al on Saturday, May 12 2007 @ 03:54 AM EDT |
Furthermore, the only reason such discovery
is necessary at all is
because IBM refused to depose SCO's experts regarding these issues
and
instructed its experts not to address these aspects of SCO's expert reports.
Accordingly, IBM's
claims of prejudice must fail.
To paraphrase,
'When we presented further discovery in direct contravention of the court's
orders IBM should have used up whatever deposition opportunities they had left
to get the details of the nebulous claims in those reports. They didn't so its
all their fault'. Actually, I am not sure it wasn't too late even for the expert
reports let alone further depositions, but, hey, everybody should be allowed to
defy court orders. SCO do it all the time.
The amendment SCO
seeks would allow the parties to resolve whether the Linux
operating system,
used by millions across the world, infringes SCO's intellectual property
rights
(assuming, also, that the court rejects IBM's effort to artificially limit the
scope only to
technology wholly within the Linux
kernel).
Paraphrasing, 'although we have been unable to confirm
our intellectual property rights even in the parts of the kernel we loosely
identified, we ought to be able to hold IBM responsible for any unspecified
intellectual property rights in anything associated with Linux by anybody. Our
business has been crippled by IBM putting their own successful UNIX code in both
their pre-eminent UNIX and in Linux and they should be
punished.
This is a win-win scenario for IBM, which
purported
to seek resolution of the question of infringement on the merits when it filed
its
declaratory judgment action; for SCO, whose UNIX business has been crippled
by the
improvement of Linux with its own intellectual property; and for the
public, which has a right
to a resolution of this dispute on the
merits.
'We licence Linux with our SCOsource licences so
everything in Linux is ours. That's why we are able to offer our Open Server
product. Because Linux is so much better than our OS, it is clear we are being
damaged by our own IP.'
'And what about poor Ian Al? He has been cruelly
treated by being made to wait so long for our claims to be resolved on their
merits'. Ah well, they are bang on the mark with that one!
Please don't
blame me for what you see here. It is hard to ridicule the
ridiculus.
--- Regards
Ian Al [ Reply to This | # ]
|
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Authored by: Peter Baker on Saturday, May 12 2007 @ 04:05 AM EDT |
I recall problems when a judge made ill advised comments to the press.
Interestingly, that was with the same company that's in the background here
too.
It makes me wonder if those latest filings are simply provocations to goad
judges into statements that can be used to generate a re-trial (aka more
publicity for the buck).
After all, getting such a retrial amounts to negating the conclusions (at least,
for marketing people it does).
Or maybe I'm just getting too cynical..
= PB =
---
= P =
[ Reply to This | # ]
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Authored by: Aladdin Sane on Saturday, May 12 2007 @ 04:15 AM EDT |
"When the truth is found to be lies..."
Go ask Alice. --- "Fat
operating systems spend most of their energy supporting their own fat."
--Nicholas Negroponte, MIT Media Lab, rediff.com, Apr 2006 [ Reply to This | # ]
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Authored by: Ian Al on Saturday, May 12 2007 @ 04:29 AM EDT |
There is not a shred
of evidence suggesting that SCO’s conduct
in this regard was bad faith or willful, or anything
other than a different
understanding than IBM now purports to have over what was required by
the unique
scheduling order entered in this case.
Magistrate Judge Brooke
Wells; It is also apparent that SCO in some instances failed to meet
the level of specificity it required of IBM. Further, this failure was willful
under case law and prejudicial to IBM.
This is SCOG wilfully
misrepresenting the US legal term 'willful'. This is SCOG conflating (well, they
started it) 'bad faith' or 'misunderstanding' with 'willful'. The judge finds
that SCOG came to the decision that they would not meet the level of specificity
ordered by the court of their own free will and that they were not forced to do
that by circumstance, but wilfully did it as defined in case law. The shred of
evidence was wholesale lack of court-ordered specificity and the support of case
law to show that this was willfully done. --- Regards
Ian Al [ Reply to This | # ]
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Authored by: Anonymous on Saturday, May 12 2007 @ 05:13 AM EDT |
Assuming that IBM answers to this sur-sur-reply, does SCO have the right to
file a sur-sur-sur-reply, to which IBM answers, so that SCO files a sur-sur-
sur-sur-reply and so on until the judge, PJ and all of us die of old age and
boredom?
Or would IBM have to give up their right to respond to stop this? Would that
be risky? If SCO comes up with more stupid arguments, does IBM have to
refute them, or would the judge be expected to decide that they are nonsense
even if IBM stays quiet?
Or can the judge at some point say enough is enough and throw out the
twenty-seventh sur-sur-sur-...-sur-reply without even reading it?
[ Reply to This | # ]
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Authored by: Ian Al on Saturday, May 12 2007 @ 05:54 AM EDT |
What Judge Kimball ordered,
Final Deadline for Parties to
Identify
with Specificity All
Allegedly Misused Material -
December 22,
2005
What SCOG argue in 1056,
The argument not only
brushes aside the parties’
dispute regarding what constitutes such
“allegedly misused material,” but also ignores the
revealing
discussion in the record regarding the meaning and import of the Magistrate
Judge’s
Order.SCO argues that the Magistrate Judge created a new and
overly broad standard,
illustrated by the Magistrate Judge’s statement
that if “it wasn’t disclosed” by the deadline on
December 22,
2005, “then it’s out.” There is nothing “plain”
about that statement to support
IBM’s argument.
The word
'final' clearly comes after the word 'all' in SCOG's dictionary. However,
neither definition fits the words as used on this planet, in this universe.
That Christmas (you know, the one where SCOG were too busy to do their homework)
they should have been wrapping copies of their dictionaries as presents to the
court.
--- Regards
Ian Al [ Reply to This | # ]
|
- 1056 - Authored by: Anonymous on Saturday, May 12 2007 @ 07:28 AM EDT
- 1056 - Authored by: jplatt39 on Saturday, May 12 2007 @ 07:37 AM EDT
- Jokebook? - Authored by: Anonymous on Sunday, May 13 2007 @ 10:01 AM EDT
- Good news, everyone! - Authored by: Ian Al on Sunday, May 13 2007 @ 04:13 AM EDT
|
Authored by: JamesK on Saturday, May 12 2007 @ 07:46 AM EDT |
Are BS&F trying for contempt of court?
The only thing you have to hand them is a shovel!
---
Be sincere, even if you have to fake it.
[ Reply to This | # ]
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Authored by: webster on Saturday, May 12 2007 @ 07:51 AM EDT |
..
0. Le-Let us hope IBM do-does not now feel compe-pelled to oppose so-something
new ra-raised in these sur-sur-replies. </stutter>
SCO's Sur-Sur-Reply Memo to Wells Order to Confine to Final Disclosures
1. They cite eight authorities so this is not overlength or heavy. Argument I
SCO WAS NOT OBLIGATED BY DECEMBER 2005 TO HAVE ITS
EXPERTS FINISH THEIR ANALYSES OF THE MATERIAL THAT
SCO IDENTIFIED AT THAT TIME AS MISAPPROPRIATED......................... 2
This is not a new argument. It is the unclear, confuse-the-deadlines tactic
that has failed every time so far. SCO never explains why they didn't disclose
the expert materials for years. They prefer to reiterate that IBM and the Judge
are wrong and illogical. [IBM and the judge don't appreciate that with
non-literal copying, specifying lines will betray the specific methods and
concepts which are already in the wild and free to use. General theories have
the only chance of reaching a jury. Specificity is fatal to SCO arguments.]
SCO has turned the simple into slime. Materials deadline, analysis, then
experts deadline. Their explanation makes no sense. It is torture to read and
figure out. They don't answer the obvious questions: Why didn't you specify
for years? Why did you hold back the expert analysis materials? Since they
have been at this for years, and only lthey knew what they have been threatening
about, the delay is inexcusable and contumacious. Their dirty tricks will not
be rewarded.
II. THE COURT ORDERS DID NOT CLEARLY REQUIRE SCO
BY DECEMBER 2005 TO HAVE ITS EXPERTS FINISH THEIR
ANALYSES OF THE MATERIAL THAT SCO IDENTIFIED
AT THAT TIME AS MISAPPROPRIATED.
Stupid Judges and IBM. SCO was talking all these years without any expert
analysis. They filed suit without experts. They stonewalled for years without
experts. SCO forgot an argument: SCO was FORBIDDEN to analyse code before the
material deadline. It is clear from the schedule. This is a vaudeville act.
SCO clearly wants IBM to pay for lawyer time. The Sur-Sur-Sur Reply will
expouse new theories of relativity.
This tit for tat game has gone on too long. SCO lawyers make these groundless
challenges and soldier on. It is a challenge of inventiveness and chutzpah
--to put it delicately. They have gone too far. They are lying to themselves
and the Court. IBM should not deign to answer this stuff. There is nothing
new. No more than a page.
III. SCO HAD IDENTIFIED BY DECEMBER 2005 THE MATERIAL
SCO ALLEGED TO BE MISAPPROPRIATED.
More sophistry.
Time for soccer.
---
webster
[ Reply to This | # ]
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Authored by: Anonymous on Saturday, May 12 2007 @ 08:05 AM EDT |
[ Reply to This | # ]
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Authored by: JamesK on Saturday, May 12 2007 @ 08:06 AM EDT |
"[ BTW, the Battle of Hastings was in 1066 ]"
Not when BS&F get done with the "facts". ;-)
---
Be sincere, even if you have to fake it.
[ Reply to This | # ]
|
- Hastings - Authored by: Anonymous on Saturday, May 12 2007 @ 08:43 AM EDT
- Hastings - Authored by: Anonymous on Saturday, May 12 2007 @ 09:18 AM EDT
- Hastings - Authored by: Toon Moene on Saturday, May 12 2007 @ 10:28 AM EDT
- Hastings - Authored by: Anonymous on Saturday, May 12 2007 @ 12:34 PM EDT
- Hastings - Authored by: Anonymous on Saturday, May 12 2007 @ 09:48 PM EDT
- Hastings - Authored by: moosie on Monday, May 14 2007 @ 02:30 AM EDT
- Hastings - Authored by: Anonymous on Saturday, May 12 2007 @ 01:24 PM EDT
- Hastings - Authored by: Anonymous on Sunday, May 13 2007 @ 12:03 AM EDT
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Authored by: Totosplatz on Saturday, May 12 2007 @ 08:20 AM EDT |
If tSCOG can succeed in having a tiny sliver of their case survive to get in
front of a jury, they will be hoping for a friendly local jury to side with
Little-Bitty Utah-based tSCOG against Big Bad New York-based Blue. Darl has said
as much several times.
The Texaco vs Pennzoil case from the early
'80s is one of their models in this, in that it produced an USD 11 Billion
judgement against Texaco, and oddly enough Pennzoil could call itself a "Texas
company" and could call Texaco a "New York company", and make it
stick.
I am confident Darl is wrong any way his phony case
survives.
Greetings from China.
--- All the best to one and
all. [ Reply to This | # ]
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Authored by: Anonymous on Saturday, May 12 2007 @ 09:47 AM EDT |
Since discovery is closed in Novell and since the Third PArty deposition never
happened, why is that motion still alive?
On IBM's side I'm sure its just professionalism, on SCO's side who can tell.
I wonder if SCO is going to try to reopen discovery again.
When its fully briefed can the judge just declare it moot and move on?
--
rsteinmetz70112
not logged int[ Reply to This | # ]
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Authored by: mwexler on Saturday, May 12 2007 @ 10:58 AM EDT |
Perhaps SCO strategy in having all these motions and rehearings and sur-replies
is to make the case so complex, that inevitably the judge will make a reversible
error and they will have grounds for appeal.
I'm not even sure if they care if they can win the appeal.
[ Reply to This | # ]
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Authored by: emacsuser on Saturday, May 12 2007 @ 11:03 AM EDT |
'the only reason such discovery is necessary at all is because IBM refused to
depose SCO’s experts regarding these issues and instructed its experts not to
address these aspects of SCO’s expert reports'
The reason we haven't been able to prove our case is because IBM refuses to do
the work for us.
'This is a win-win scenario for IBM, which purported to seek resolution of the
question of infringement on the merits when it filed its declaratory judgment
action; for SCO, whose UNIX business has been crippled by the improvement of
Linux with its own intellectual property'
In a request to extend our submission period, we nefariously slip in our claim
despite the fact that this issue is what the whole case is being fought over. If
no one objects and we get this into the court records then it somehow acquires
validity. eg. SCOs UNIX business was crippled by IBMs contributions to Linux
instead of our business is in the toilet because of incompetent management.
'IBM would like to convince the Court that, in order to defend effectively
against the evidence of infringement presented in SCO’s expert reports, IBM
would have to analyze every single file in Linux with excruciating detail. This
is far from true. Indeed, this file-level myopia is misguided at best and
disingenuous at worst'
We still haven't been able to produce any code copied line by line into Linux.
'even if IBM could prove that every line of code in Linux was “independently
created,” which it cannot, that would not show that the non-literal organization
of Linux was independently created'
Even if the code was proved independently created we would then invoke the
properties and methods shuffle.
'Non-literal infringement is a well established aspect of copyright law that IBM
should expect to address in connection with its defense of Linux'
'We won't tell you exactly what Non-literal infringement but IBM still hase to
prove it didn't'
'SCO has identified the precise literal and non-literal elements it claims are
infringed by Linux'
-------
PJ, anyone here answer this:
If IBM illegaly copied SCO literal and non-literal elements into Linux then the
evidence would reside in the code, is that not corrrect? So how can IBM disprove
SCOs claim without referencing the code. Why does SCO have to rely on IBM to
prove its case. As as far as I am aware SCO is the Plaintiff and IBM is the
Defendant.
-------
Plaintiff: I accuse you of murdering my wife and burning down my house.
Defendant: Produce the evidence.
I can't because you're predudical to the case and won't cooperate in discovery,
therefore you must be guilty.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, May 12 2007 @ 11:05 AM EDT |
First, SCOG must beat both judges. They are making progress here.
Second, SCOG must beat the jury. They are preparing this ground.
Then, SCOG beats the legal system.[ Reply to This | # ]
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Authored by: Toon Moene on Saturday, May 12 2007 @ 11:41 AM EDT |
Apparently the articles showing two / three 128 bit numbers have been deleted.
I personally want to preserve my entry, without quoting the (apparently, for no
reason I know of) offensive number.
Here's *my* 128 bit number:
46 6f 72 74 72 61 6e 20 52 6f 63 6b 73 20 21 0a
---
Toon Moene (A GNU Fortran maintainer and physicist at large)[ Reply to This | # ]
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Authored by: Anonymous on Saturday, May 12 2007 @ 01:11 PM EDT |
There's one clever thing in documents 1055: SCO uses a good Simile to explain
what they mean by non-literal structural copying. They use the idea of two photo
mosaics, made with thousands of little pictures. When you look at each little
picture, it's different to any picture in the other photo mosaic, but when you
step back and look at both mosaics, you see that the mosaics make up the same
picture.
(That would be the a picture of an AT&T logo for SCO's code? And a picture
of the AT&T logo with a penguin peeking out from behind it for Linux?)
Anyway, finally a clear idea of what they mean!
Now, I cannot for the life of me see how they could possibly win by saying that
two pictures are similar, after all, most pictures of say, the crucifixition of
Jesus, are similar, which is not surprising seeing as they concern the same
topic. Nor is it usually accepted that because artists follow traditions laid
down by others, or even referencing ideas from other artists, that they have
made infringing copies of other pictures.
Plus, it's a bit late.
But nevertheless, it's a good way of explaining what they are talking about, and
one of the few times that I've read something by SCO which was clear.[ Reply to This | # ]
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Authored by: GLJason on Saturday, May 12 2007 @ 01:12 PM EDT |
The court orders could only have one possible meaning and still be fair to
both parties. SCO's contentions that either they or the judge misconstrued the
court orders carry little weight. The judge specifically said the purpose of
the deadline was to make sure all the allegations were on the table to enable
the other side to perform discovery with regard to those allegations and to
prevent either side from springing allegations on the other side at the eleventh
hour.
If you follow SCO's arguments, then all of the other
discovery deadlines are pointless. New allegations necessarily entail discovery
from the other side. If new allegations were allowed in the expert reports
(four months after discovery was closed) then it would be necessary to re-open
discovery for document production, research, and for depositions. SCO's
interpretation therefore renders those deadlines meaningless.
SCO was
told specifically to seek guidance if they were unsure of the court orders, yet
they did not. IBM specifically told them they would ask for anything not in the
final disclosures to be disallowed and yet SCO still did not seek
'clarification'. Now SCO claims the judge was confused.
All evidence
necessary for these new claims was in SCO's possession since before the case
began. Caldera itself was a Linux company and the primary proponent of STREAMS
in Linux. The only thing that may not have been available was some of the extra
stuff about JFS or IBM's own contributions to Linux, which SCO has had access to
for two years. The only allowable reason for not including them in the final
disclosures would have been if new evidence was found. expert reports are based
on evidence, they aren't evidence themselves. In any case, SCO could have (and
it appears should have) hired the experts sooner. In fact it was their duty to
have experts find all the infringing code prior to the final deadline for
disclosing misused material. One would think that you would have experts find
infringement prior to filing suit, as SCO claimed to have done (three teams of
experts including MIT Rocket Scientists).
[ Reply to This | # ]
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Authored by: dodger on Saturday, May 12 2007 @ 01:48 PM EDT |
This is how the final defense plays out.
SCO: Your honor, I would like to take this opportunity to tell the court what
this case has really been about. Yes we have argued that IBM has misused IP. Yes
we have argued that there have been contracts broken. And we have argued that we
and not Novell own the rights, copyrights, and patents to UNIX. We are aware at
this late date (August 2009) that the 'facts' seem to be against us.
But now, that we are coming down the home stretch, we can now explain what this
was really about. It's about the inability of the American Justice system to
deal with any of these issues. Its about complexity. Back some years we ordered
discovery on every permutation of every IBM released (and not released)
operating system amounting to billions of lines of code. As we will show today,
our justice system cannot handle this complexity. Who is to say whether there
was a violation or not? The justice system is ultimately made up of lay people
who haven't a clue about what is in those mountains of documents.
You might argue, that we pull in our experts and their experts and we let them
fight it out. But we don't understand them with their load register commands and
hypervisors and alloc(), headers, semaphores and the like. Face it. It's martian
talk.
When we realized how inadequate our justice system was to deal with these
issues, we came up with a plan.
We would turn the system upside down. Make it into a pretzle. We would go this
way and that way until everyone was so confused that they didn't know what to
think.
And at that precise moment, which we all agreed we had finally reached, we would
'open our kimono' so to speak and disclose our true goal: the exposing of the
human inadequacy of trying to even discuss these issues.
Your honor, may I approach the bench?
COURT: You may.
SCO: Your honor I have here the signed statements of Microsoft, Novell, Sun
Microsystems, ourselves (SCO{G}{X}, formerly Caldera, formally Santa Cruz
Operations, almost Tarantella, but maybe not), These papers show that this all
was an elaborate collaboration of these parties to illuminate for the court
system the burning issues that are responsible for turning litigation into a
business model which is costing our country billions.
In the event that you have understood our point of view and agree with us, then
we request that you dismiss the entirety of this case to deal with the issues
that we have brought to light.
In the event that you disagree with our point of view, then our partner
Microsoft, whose EULA covers every word document that makes up this case, is
going to exercise that same EULA and forbid the court to use its proprietary
document format any more (paragraph 5, section 4a) and is hereby announcing that
it will go after the Adobe PDF format, as well as the '.txt' file format (which
it patented in the early 1980s), with the net result that all court documents,
being evidence in this new lawsuit must be sequestered until the suit is brought
to trial (see you in 2058.)
[ Reply to This | # ]
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Authored by: mhoyes on Saturday, May 12 2007 @ 01:56 PM EDT |
I have just started reading the first Sur-surreply, and notice the following
argument.
The facts here are analogous to a photo mosaic, in
which hundreds or thousands of individual photographs are organized in a manner
that conveys a larger image. SCO’s evidence shows that the overall image
conveyed by Linux is copied from UNIX, even if the individual photographs that
make up the mosaic are not. In response, IBM’s position is to (1) ignore SCO’s
argument that the overall image was copied from UNIX, (2) insist that SCO is
actually challenging each individual photograph used to make up the overall
image, and (3) argue that analyzing each individual photograph would require
extensive additional discovery. In fact, an analysis of each individual
photograph would be irrelevant to SCO’s claims of
infringement.
Now, I am not a lawyer, but isn't most of the
concept of UNIX dictated by having to remain compliant with the UNIX standards?
Also, how much of the code looked at was already released un the BSD agreement?
And then, how much additional was released by AT&T, Novell, The Real SCO,
and Caldera? While looking, I ran across an interesting PDF on the whole
trouble with copyrights on software, and also the various tests that are used by
the courts to determine if infringement has occured. It is here, New York
Law Journal.
The only other thing I can think of is they are trying
to say that IBM will only require "limited discovery" because of this "picture"
theory, and that they still hold the thought that they own all of UNIX, lock
stock and barrel.
meh [ Reply to This | # ]
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Authored by: mhoyes on Saturday, May 12 2007 @ 02:26 PM EDT |
In further reading, I come across this:
Almost a full
year has passed since IBM received a copy of Dr. Cargill’s first expert report.
This is more than twice the time between SCO’s filing of its December Submission
and the parties’ submission of initial expert reports. This is time in which IBM
could have analyzed the material contained in SCO’s expert reports. Instead,
hoping to obtain a discovery windfall and exclude SCO’s evidence of
infringement, IBM has tactically refused to analyze such material. Any delay
caused by allowing consideration of such material now is due to IBM’s year-long
refusal to address such material.
Which seems to say, IBM
should have been working on rebuting the expert reports, even though the court
has ruled that they are to be omited, so it is IBM's fault that they have not
used the time to challange them. Is it just me, or are they trying to imply
that IBM should work on every angle possible, and if they don't, well, that's
not tSCOg's fault, it is IBM's for trying to "game" the court.
That is
the other thing that I notice. They seem to try to cast IBM as the party that
is causing all the delays and submitting the numerous motions.
meh [ Reply to This | # ]
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Authored by: DannyB on Saturday, May 12 2007 @ 02:29 PM EDT |
PJ wrote
What SCO wants is what it always wants, to get to do
what it wants
If you remember way, way back, Daniel Lyons
wrote
What SCO Wants, SCO
Gets
Amusing.
Daniel Lyons fantasies don't appear to
be comming true.--- The price of freedom is eternal litigation. [ Reply to This | # ]
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Authored by: dcf on Saturday, May 12 2007 @ 03:56 PM EDT |
Consider the following from IBM-1055:
IBM argues that, although
trial date is not set, the discovery required to address the
material in SCO’s
expert reports would delay any contemplated trial date and a new round
of
briefing would be required to address such material. (IBM Sur-Reply at
35-36.) ... IBM chose not to take any
discovery on the material it challenges,
told its experts not to analyze such material, and
disregarded SCO’s arguments
relating to such material as a tactical measure so that it would be
able to
avoid dealing with such material. To now claim that it would be prejudiced by
having to
undergo a new round of briefing because it made a conscious decision
to ignore the material in
SCO’s expert reports is simply complaining about the
bed IBM made for itself.
SCO seems to be assuming that the
material disclosed in SCO's expert reports would require only expert discovery
and not fact discovery.
IBM could not have continued with fact discovery
without violating IBM-466,
which specified that March 17, 2006 was the deadline for "Close of All Remaining
Discovery (i.e., Fact Discovery
As to Defenses to Any Claim Relating to
Allegedly Misused
Material), since that deadline had already passed by the time
SCO's expert reports were available. Any discovery on material newly alleged to
be misused would of course be "as to Defenses to Any Claim Relating to Allegedly
Misused Material" and not expert discovery, even though the allegations appeared
(improperly) in the expert reports.
In SCO's looking-glass view of the
justice system, there should be no consequences to a party which violates court
ordered deadlines, but parties which adhere to those deadlines should be
penalized for doing so (by forfeiting the right to claim prejudice) [ Reply to This | # ]
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Authored by: Anonymous on Saturday, May 12 2007 @ 07:06 PM EDT |
I note in 1050, however, that SCO has until May 25 to file its reply
in support of its Motion, which IBM opposed, to Deem a Prospective Third-Party
Deposition in Related Litigation to be a Deposition Taken in this Case As Well.
SCO spelled it Perspective, but we know what it meant.
The
word choice was perhaps intentional.
1. It confuses the clerk.
2. It
might confuse the judges.
3. It accurately describes what they are trying to
do.
Think of the classic
optical illusion involving forced perspective
where the kid holds a tiny fish towards the camera, dangling from the line of
the fishing pole. The photograph shows a huge fish nearly as large as the
fisherman.
cbc
[ Reply to This | # ]
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Authored by: cricketjeff on Saturday, May 12 2007 @ 07:45 PM EDT |
My latest doggerel analysis is here
I will copy it here if wanted, but it takes ages to make it appear as a
poem not a block of text and it's past my bedtime. [ Reply to This | # ]
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Authored by: sk43 on Saturday, May 12 2007 @ 08:22 PM EDT |
We now know which code is at issue in Cargill's report and which needs to be
added to the December submission. Let's help out SCO.
First we need 96 system calls. No problem - we can find this many and even more
at
ftp://ftp2.sco.com/pub/skunkware/src/emulators/lxrun-0.9.0-src.tar.gz
The lxrun program is designed specifically to make the structure of Linux system
calls look like the structure of Unix system calls. The code is distributed
under a BSD license. Just what the doctor ordered.
The system calls themselves are documented here:
ftp://ftp2.sco.com/skunkware/lxrun/mirror/SyscallTable.html
Next, we need some ELF code. Once again, no problem. For starters, the lxrun
product above has a copy of "elf.h". Much more ELF code can be found
at:
ftp://ftp.sco.com/pub/openserver5/opensrc/source/gnutools-5.0.7Kj-SRC.tar.bz2
which contains the entirety of "binutils", "gdb", and
"gcc", filled with ELF code. All distributed under GPL.
Next, we need some file system code. This ia a bit tricky, but we can do it:
ftp://ftp.sco.com/pub/opensource/nkfs/nkfs-4.2.1.tgz
This package contains code to make a remote Netware filesystem appear to have
the same structure as a Unix filesystem. Also distributed under GPL.
Finally, we need some Streams code. This is the trickiest of all - we need to
go "offsite" to find some. The nearest location is
ftp://ftp.planetmirror.com/pub/caldera/OpenLinux/3.1.1/
Server/OpenLinux-3.1.1-server-CD2.iso.
Digging down, we come to
col/sources/SRPMS/kernel-addon-2.4.13-1S.src.rpm
Finally, we pull out LiS-2.13.6.tgz. Ah, a full copy of Linux Streams. Under
GPL, of course.
That completes our construction of SCO's amendment to the December submission.
Hopefully SCO will find this useful!
[ Reply to This | # ]
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Authored by: Jamis on Saturday, May 12 2007 @ 08:34 PM EDT |
SCO continues to build its house of cards higher and higher. As soon as a judge
opens his mouth, the house will come crashing down. The details trickling out
are interesting, but I am waiting for the breeze. Then we will really get to
see the whole hidden show. [ Reply to This | # ]
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Authored by: sk43 on Saturday, May 12 2007 @ 09:58 PM EDT |
It took some searching to track this down. SCO filed two
motions, one an Objection to Wells order granting IBM's motion
to limit, and one a Motion to Amend the December 2005
submissions. In the interest of brevity, IBM combined its
Memoranda in Opposition to both motions in one document:
[961], while SCO filed separate Memoranda and Reply
Memoranda for each motion individually. IBM was granted
the right to file a sur-reply, and it once again responded
to both motions in one document [1034]. SCO kept to its
pattern and filed separate sur-sur-replies for each motion
once again.[ Reply to This | # ]
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Authored by: webster on Sunday, May 13 2007 @ 12:50 AM EDT |
..
On the Objections
IBM conflates,rehashes, avoids the merits, infringes, artificially limits,
vituperatively wrangles, bootstraps, misses the point, disregards the law,
overstates, errs, ignores, tactically refuses, unilaterally decides and more in
this one. They are also misguided and disengenuous. Normand had a blast doing
it. There was a lot of knee-slapping when they reviewed it.
In the preliminary statement SCO blames IBM, inter alia, of refusing to depose
SCO experts about the items they seek to add and also not letting IBM experts
address these aspects of SCO's reports. They are right. IBM did these things.
Why would IBM do these things? Because these expert materials are not now in
the case. The material is confined to the final disclosures. Until a Judge
changes his or her mind, the stuff is irrelevant. Don't blame IBM for following
the Judges' orders.
I. SCO WAS NOT OBLIGATED BY DECEMBER 2005 TO HAVE ITS EXPERTS
FINISH THEIR ANALYSES OF THE MATERIAL THAT SCO IDENTIFIED
AT THAT TIME AS MISAPPROPRIATED.
II. THE COURT ORDERS DID NOT CLEARLY REQUIRE SCO
BY DECEMBER 2005 TO HAVE ITS EXPERTS FINISH THEIR
ANALYSES OF THE MATERIAL THAT SCO IDENTIFIED
AT THAT TIME AS MISAPPROPRIATED.
These are disastrous arguments. They remind the Judge that she is stupid and
doesn't understand her own order. The Judge and IBM interpret the scheduling
order in a reasonable fashion. Disclose all the code, have the experts go at
it, disclose the experts reports. One really can't have it any other way.
SCO's interpretation is strained (and insulting), but they think it improves
with repetition. It is their new mantra after the specificity wars. See how
far they get in oral argument when they twist the Judge's intent. It works no
better on paper. IBM even warned them about the stipulation, and their
inadequate disclosures, after the interim deadline. Stonewalling and ambush
tactics are risky even when you haven't insulted the Judges. SCO shall remain
unforgiven. Given such an unfounded premise, the sophistry needed to bolster
their position just aggravates their unreasonability. It is not as complicated
as they make it.
III. SCO HAD IDENTIFIED BY DECEMBER 2005 THE MATERIAL
SCO ALLEGED TO BE MISAPPROPRIATED.
Then we have this gem: "There is a distinction between “allegedly misused
material” and “material in support of
SCO’s assertion that previously identified material was misused,” and the
Magistrate Judge’s Order fails to acknowledge it." It begs analysis. One
does not try, but SCO feels it belongs in Magistrate Judge Wells' head, because
that is what she meant and expressed to SCO no matter how many times she denies
it, IBM acquiesence notwithstanding. And so they continue short but tortuous.
No one is going to look Normand in the eyes when he makes these arguments. They
are inventive, but he couldn't believe them. Do they feel that a woman does not
know her mind? Would they say and argue in court such things to Kimball?
SCO contiues with some strained reasoning on the expert reports. After the
twisted start one doesn't want to follow them with the effort it takes.
SCO arguments on prejudice are good. IBM has broad shoulders. They argue well.
They can handle whatever the Court orders. They could have left off the part
on briefing all the Moions for Summary Judgment again. Imagine doing all that
overlength stuff again for much more material!
B. The Record Belies IBM’s Claim That SCO Spent “Years” Developing
The Theory of Copyright Infringement in Dr. Cargill’s Report.
Well if SCO didn't know what they have been talking about all these years who
did? They must have bluffed each other with that Non-Disclosure Agreement.
They then list IBM's series of articles on SCO statements and say that Cargill
was not involved.
---
webster
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, May 13 2007 @ 07:35 AM EDT |
Is SCO trying to get someone to make a fault that would justify to break a
judgment or summary judgment?
In this mad accumulation of memoranda, reply's and challenges, could they find a
little technical fault that puts it into question.
Like in movies when the bad guy gets out free because a stamp is missing on a
form or some other silly thing like this (that only happens in movies, of
course).[ Reply to This | # ]
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Authored by: kutulu on Sunday, May 13 2007 @ 09:43 AM EDT |
Buried deep inside 1055 is this gem:
IBM’s unilateral decision to
ignore the thousands of lines non-kernel Linux source code identified in SCO’s
December Submission, not any action by SCO, has ensured that the “fear,
uncertainty, and doubt” surrounding the Linux operating system will remain after
resolution of IBM’s motion for summary judgment on its tenth counterclaim,
because the majority of the infringing material will remain
unadjudicated.
To me, this looks suspiciously like SCO saying
"since you threw out all of our case, whenever this one finishes we'll just sue
again for the stuff we didn't get to the first time." Does civil law have
anything like the (usually misunderstood) "double jeopardy" concept? If IBM won
everything hands down, but SCO had more material it claims was infringing
its copyright that was never part of trial, could it just start another trial?[ Reply to This | # ]
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Authored by: Wardo on Monday, May 14 2007 @ 10:57 AM EDT |
This is a win-win scenario for IBM, which purported to seek
resolution of the question of infringement on the merits when it filed its
declaratory judgment action; for SCO, whose UNIX business has been crippled by
the improvement of Linux with its own intellectual property; and for the public,
which has a right to a resolution of this dispute on the
merits.
Ok, so there's 2 wins in "win-win", but there are three
parties listed, so which are the two winners?
- IBM
- SCO
- the
public
My bet is on 1 and 3...
Wardo
--- caveat
lector...
Wardo = new user(lawyer = FALSE,badTypist = TRUE,badSpeller = TRUE); [ Reply to This | # ]
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