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IBM Motion to Limit SCO Claims Granted 195

Posted by samzenpus
from the I-missed-these-guys dept.
Kalak writes "IBM's motion to limit SCO's claims to those that have specific version, file and line numbers has been granted, in part. At the end of last year, SCO made 294 allegations. IBM asked for dismissal of 198 of them due to lack of this information, 1 SCO withdrew, 1 IBM withdrew from the request, and 185 of them have been dismissed from the case. This leaves 107 of the charges are left to be addressed by means other than lack of specificity (such as public domain, BSD code, who owns it, etc.) As usual, Groklaw, has discussion, as well as the Order and an excellent chart of the history of alleged violations has been created as well."
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IBM Motion to Limit SCO Claims Granted

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  • by beheaderaswp (549877) * on Wednesday June 28, 2006 @09:16PM (#15625235)
    I hope that people appreciate the fact that IBM didn't just lay down on this suit and settle by dumping some money. They could have, and they can afford to do so. But rather, they are playing this out in a manner where there will be a ruling- a ruling where I predict Linux code will be vindicated.

    I'll be an IBM customer for a long time due to this. And Whether IBM means it as some grand "do good gesture" or not is meaningless.

    The resolution of this will mean that the US will not fall behind in Linux Development. Which they could- assuming the legality of Linux changed here- but not elsewhere.

    Go IBM!
    • by Lead Butthead (321013) on Wednesday June 28, 2006 @09:25PM (#15625255) Journal
      IBM saw the entire affair for what it is -- extortion. They also knows that if they cave into one, they'll be defending themselves till cow comes home.
      • Not quite. (Score:2, Insightful)

        by Frosty Piss (770223)
        Of course IBM saw it as extertion. But IBM can afford to pay, just to not have to deal with it. IBM realizes, however, that Linux is going to play a big part in it's future, and while a one-time extortion fee could be rationalized, allowing SCO to bleed them forever could not be allowed to be a part of IBM's business plan.
      • by trewornan (608722) on Wednesday June 28, 2006 @11:56PM (#15625713)
        I just hope IBM aren't satisfied with just grinding SCO into fine powder.

        I hope they go after the company directors (I want to see them do some jail time), I want IBM to press a complaint with the bar against SCO's lawyers (I hope they never practice law again). I hope SCO's expert witnesses get prosecuted for perjury. I hope IBM turns on Baystar and forces some answers out of them (I'd love to see Baystar go down too).

        Even the more peripheral individuals and companies around this case deserve a good kicking. I hope forums like this won't let anybody forget which companies supported SCO or bought "Linux Licences" and which journalists backed their case (in particular - let's make sure every time DiDio makes some pronouncement everybody remembers what she said about how solid SCO's case was).

        It's time make sure everybody who assisted SCO suffers. It's time to make some examples. It's time to get vindictive.
        • by iainl (136759) on Thursday June 29, 2006 @04:39AM (#15626459)
          I think the phrase you're looking for is:

          "I want this guy dead! I want his family dead! I want his house burned to the ground! I want to go there in the middle of the night and piss on his ashes!"

          yes?
        • I want IBM to press a complaint with the bar against SCO's lawyers (I hope they never practice law again).

          Why? The SCO lawyers are just doing what their clients paid them to do. I hate unethical lawyers as much as the next guy, but I don't think they can be disbarred for doing their job.

          • by trewornan (608722) on Thursday June 29, 2006 @09:45AM (#15627399)
            The lawyers must have known that SCO had no evidence to support their accusations and therefore could not win. Persuing an action knowing that it was a hopeless case with no justification is unethical even for lawyers (yes they do have rules they are supposed to follow). Lawyers who break these rules in order to abuse the legal system the way these ones have deserve to be held accountable - that their clients paid them to do it is no excuse at all.
    • I'm glad IBM obviously hired some very expensive, very good, lawyers and/or has a very talented team of in house lawyers. You can bet they worked very hard and were very expensive. I love to see a company work so hard for an ethical goal as opposed to a profit goal...even though the lawyers also profit excessively.
      • by Pharmboy (216950) on Wednesday June 28, 2006 @10:08PM (#15625392) Journal
        I love to see a company work so hard for an ethical goal as opposed to a profit goal..

        wtf. IBM couldn't afford to work so hard on what you call an "ethical goal" if they didn't spend most of their time working hard to actually make money.

        I am all for the best of ethics and conducting business in a fair and open way, but there is nothing even remotely wrong with making a profit. It is how jobs are created, stock dividends are paid to your 401k, and why they can invest in new technologies.

        Your statement clearly indicates that you think a company working hard to make money is just "wrong". You seriously need to rethink this. Working hard to make money is a GOOD thing, not a bad thing.
        • Actually, I meant what I said..."I love to see a company work so hard for an ethical goal as opposed to a profit goal."

          That is because I hate to see big business/corporate shills running our government to the detriment of our personal freedoms. IBM, like all companies that size, wields incredible influence in legislation that gets passed that directly or indirectly affects their bottom line. While IBM certainly recognizes the potential for future sales in its stance, that doesn't change the fact they are
        • by honkycat (249849) on Thursday June 29, 2006 @12:35AM (#15625834) Homepage Journal
          I don't think his statement means what you interpreted it to mean. When a company works for an ethical goal -- one that is primarily motivated by doing the right thing rather than making money -- it is surprising. There is no surprise when a company works for a profit goal, since that is what companies are expected to do. This doesn't mean that profit goals are unethical, just that it's not particularly interesting when a company goes after a profitable target that happens to be ethical.

          It does seem that perhaps it would have been cheaper for IBM to have settled long ago rather than fighting this for so long. You can make a reasonable case they're standing up for Linux because they don't want to see SCO make off with ill-gotten profits. I'm not totally sold on that interpretation -- it's also quite possible that they've done an analysis and found that settling the lawsuit would be more expensive than many slashdotters seem to estimate so they're just making a rational fiscal decision.

          Personally, I hope that it's the former, because I agree with the original poster. It warms my heart to think of a large company motivated by something other than the bottom line. It doesn't happen often, but it is possible.
        • by BigFootApe (264256) on Thursday June 29, 2006 @01:26AM (#15625974)
          An ethical code of conduct is important for a business. It creates a sense of trust in the client base which stabilizes markets. That trust is also important for strategic relationships with other businesses.

          Think of it like a farmer caring for his soil. Sure, he might squeeze a little more yield out in the short term, but he'll pay down the road.
          • > Think of it like a farmer caring for his soil. Sure, he might squeeze a little more yield out in the short term, but he'll pay down the road.

            Yeah, imagine if they used gallons of Monsanto insectiside, fertilizer and GM seeds instead of the organic systems they use now!

    • ... I wouldn't be surprised to see "Judge grants IBM motion to bend SCO over and spank 'em."

      If you've followed the case at all (such as the occasional glance at Groklaw), you'll be glad to see that it's been an utterly disastrous string of defeats for SCO.
  • Like SCO business...

    OK... taking bets now... how long before SCO goes completely?
    • by beheaderaswp (549877) * on Wednesday June 28, 2006 @09:21PM (#15625246)
      It's got to be sooner rather than later. The whole travesty look like a dam beginning to leak now. Let's hope it resolves cleanly, with a lot of positive press for Linux.
    • Over under (Score:3, Insightful)

      by Mateo_LeFou (859634)
      on McBride et. al's salaries when they move on to other companies, to continue trying to game the jacked-up "intellectual property" system. Anyone? I'm not a bookie but I'll put $800K out there. What severe repercussions!
    • by cmowire (254489) on Wednesday June 28, 2006 @09:46PM (#15625327) Homepage
      Well, here's the big question...

      There's two possible reasons behind this particular lawsuit. One is because the SCO execs want to go after IBM for extortion. The other reason is because Microsoft is trying to go after Linux.

      If the second is true, any actions from here may be oriented towards preventing Microsoft from being revealed as the Man Behind The Curtain, rather than winning.
      • There are two angles of MS's involvement, as I understand.

        The first is the actual SCO licenses MS bought, right? Well, I recall reading a tiny paragraph in a magazine from around then of Ballmer mentioning having a lab studying Linux. So of course, since Ballmer was on the record saying "Linux might have IP issues!! Linux might have IP issues!!", it would seem plausible that they bought the licenses just in case ($699 is pennies compared to $125,000 per infringement). Now, we all doubt that Ballmer rea
        • Zach- I think you have it wrong.

          It's more likely that SCO was puppeted by MS in order for MS to avoid getting directly involved. Let's face it, MS can't get involved directly- it would be a bad thing.

          After this trial, SCO may be dead- though we might see some (more) interesting IP strategies from MS and it's cronies.
          • No, I agree that SCO was an MS puppet. I just mean that you can't prove that. The only real way to prove it is with the money (at least in the US). I mean, unless you have Darl's phone bugged and a recorded conversation, only really suspicious monetary ties will get anything done investigative. And my point was to show that MS can easily refute the money charges.
      • by dbIII (701233) on Wednesday June 28, 2006 @10:49PM (#15625525)
        There's two possible reasons behind this particular lawsuit. One is because the SCO execs want to go after IBM for extortion. The other reason is because Microsoft is trying to go after Linux.
        You forgot a third option. Darl's brother is on the legal team and vast amounts of SCO cash are bleeding directly into his pocket. Perhaps SCO was set up to lose from the day Darl started running the place. When SCO goes down, what does Darl lose? He'll just go on to the next position with the reputation of being the underdog going after IBM - and he would have won too if it wasn't for those darn commie kids and their penguin. There are plenty of places that would take him on the strength of that without looking into management ability or possible criminal behavior. I suspect we'll be hearing more about this person until he does a mini-enron at a larger company and ends up imprisoned for it.
      • by A nonymous Coward (7548) * on Thursday June 29, 2006 @05:30AM (#15626592)
        Suppose, when all is said and done, and IBM wins, they are awarded a chunk of change sufficient to bankrupt SCO. Wouldn't that mean that IBM would in fact end up owning SCO? And wouldn't they then have access to all SCO internal papers, such as Darl's personal email archives, memos, etc? In fact, unless Darl quit, he would then be working for IBM, and all his papers would become IBM property.

        Wouldn't that be fun!
        • I don't think (IANAL, mind) that it works that way - what'll probably happen is that SCO gets sent into the US version of administration (Chapter 11 or 7?), where the administrators of the company sell as much of the assets to the highest bidder to raise the funds required to pay IBMs damages.

          Given that it'll probably be higher damages than SCO can possibly pay, the result would be liquidation of the entire company.

          Granted, it would be nice that IBM ends up with the copyrights and such for old UNIX given th
          • "Granted, it would be nice that IBM ends up with the copyrights and such for old UNIX given their current position of niceness towards the FOSS community, but I think it would be unlikely that it would happen that way."

            SCOG would have to own them first. :-) They can't even prove what they were sold by SCO or that SCO ever got them from Novell in the first place. Which leaves the SGOG vs Novell case somewhat hanging if IBM puts them out of business too soon. They (SCOG) are playing the same type game there a
    • It won't go soon enough in my book. You know, Caldera wasn't a bad company and then when they bought out SCO and assumed the name, it all went to hell.

      It became a money grab. That the suit has even gone on this long particularly since IBM has the funds to essentially bury SCO's attorneys in mounds of documentation that would take them decades to sort through, surprises me.

      But in the end I think IBM will prevail.
  • by close_wait (697035) on Wednesday June 28, 2006 @09:21PM (#15625247)
    In case anyone isn't clear as to the significance of this, SCO have two main types of complaint: straightforward copyright violations ("ooh your honour, their errno.h looks just like ours"), and the more nebulous "methods and concepts". The judge has now thrown out most of the latter, which were always going to be the more complex to defend against. The literal copying is easy: "it's from the POSIX standard", "it's from the old System III code that Caldera put in the public domain" etc.

    SCO are finished.

    • by killjoe (766577) on Wednesday June 28, 2006 @09:53PM (#15625352)
      I am pretty sure they took copyright violation out a while back. All they have now are methods and concepts crap. They know they have nothing though. They are just a chess piece in the hands of MS. MS is funding this thing just to keep up the FUD and hassle IBM, they will keep doing it until the case is over and then find another stooge to do it again. It only cost them about 12 million so they definately got their money's worth from this one. They suckered a bank into dumping a bunch of money (who took it in the shorts) and that bank is probably wanting some sort of re-imbursement but still just chump change for MS.
      • by jmorris42 (1458) * <.gro.uaeb. .ta. .sirromj.> on Wednesday June 28, 2006 @11:19PM (#15625634)
        > It only cost them about 12 million so they definately got their money's worth from this one. They suckered
        > a bank into dumping a bunch of money (who took it in the shorts) and that bank is probably wanting some sort
        > of re-imbursement but still just chump change for MS.

        You clearly aren't cynical enough. Those banks didn't lose a dime. They were laundering MSFT's money to SCOX pure and simple. Somewhere (probably in Balmer's office on well encrypted media) is a set of books showing how other payments (remember both Baystar and RBC had and still have extensive dealings with MSFT) were inflated to cover the transfer^Winvestment to SCOX.

        SCO was Microsoft's sock puppet from day one. SCO was dead and they knew it so it wasn't like they had much choice, so they took on Darl and went on a suicide mission to buy Microsoft some time to come up with some strategy that might actually be able to stop FOSS other than launching the Patent Wars.

        Nobody wants the Patent Wars, it is a doomsday device, once it goes off nobody can say with any certainty who survives or what the postwar world looks like. But they are increasingly being pushed against the wall and will eventually be forced to push the button. Yes they are still mighty, have annual sales in the billions and a virtual monopoly. But their stock has been flat since the .bomb crash and pressure is mounting for them to "do something." Be afraid, very afraid that the SCO trial is about over.
    • Hows about: "Novell owns the copyrights, SCO has shown no document transfering the copyrights, SCO thus has no standing to sue"
  • by Junior J. Junior III (192702) on Wednesday June 28, 2006 @09:24PM (#15625250) Homepage
    Move to call the trial "The SCO Monkey Trial".

    Anyone want to second?
  • by Anonymous Coward on Wednesday June 28, 2006 @09:25PM (#15625256)
    Judge Wells supports her decisions in a manner that effectively prevents them from being appealed.

    She uses Sandeep Gupta's (he testified for SCO) testimony to support the requirement for specificity.

    She uses the fact that SCO didn't complain when it was ordered to produce specific lines of code. She also notes that SCO never asked for clarification on that point.

    She is firing SCO's own testimony and actions (or lack thereof) right back in their faces.

    Some posters on Groklaw and the Yahoo SCOX message board have speculated that this decision means that a couple of the counterclaims are a slam dunk. In particular, it now appears that Linux is completely clear of copyright violations wrt anything that SCO owns or says it does.
    • by brandonY (575282) on Wednesday June 28, 2006 @10:52PM (#15625532)
      Wait, wait, wait, Sandeep Gupta testified for SCO? But he got an IBM Graduate Fellowship (September '88 -- May '91). Irony!
    • by Jetson (176002) on Thursday June 29, 2006 @06:47AM (#15626730) Homepage
      Judge Wells supports her decisions in a manner that effectively prevents them from being appealed.

      She's also entertaining. I would have expected most legal decisions to be dry and technical, but she uses some layman concepts that suggest she's well aware her audience includes a lot of non-lawyers. My favorite item is on page 34:

      Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that "you know what you stole so I'm not telling." Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say "its in there somewhere, you figure it out."
      • by poot_rootbeer (188613) on Thursday June 29, 2006 @11:13AM (#15628012)
        Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that "you know what you stole so I'm not telling." Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say "its in there somewhere, you figure it out."

        Probably it was the $250 cookie recipe.
  • Geocities? (Score:3, Funny)

    by daeg (828071) on Wednesday June 28, 2006 @09:27PM (#15625265)
    What genious linked to a Geocities site from a Slashdot posting? I mean... come on.
  • by Anonymous Coward on Wednesday June 28, 2006 @09:39PM (#15625299)
    Finally, some good news.

    Looking at this ruling, and the other exceptionally clear rulings which have been handed down in this case so far, I really am glad that the SCO case was assigned to judges who really understand what it is they are doing. This has been an exceptionally slow case, but at least when progress in the case finally does occur, the progress is meaningful.
  • Pro-SCO (Score:5, Interesting)

    by PavementPizza (907876) on Wednesday June 28, 2006 @09:50PM (#15625344)
    Know what's funny? I just figured out that prosco.net [slashdot.org] is now a parked domain. [prosco.net] I guess they didn't have the heart to keep pretending anyone wanted to read it.
    • And they are asking at least $75.00 for it.

      upside -- it would be a fun domain to use.

      downside -- sco would get $75 more than they deserve.

      decisions, decisions.
    • Re:Pro-SCO (Score:3, Interesting)

      by Clovert Agent (87154)
      That's not all. The old prosco.net page (http://web.archive.org/web/20050213064558/http:// prosco.net/) said:

      "SCO is anticipating that it will use this site as the future home for all information relating to SCO's pending lawsuits and related issues. For current information about SCO's suit against IBM, please visit www.sco.com/ibmlawsuit, and about SCO's suit against Novell, please visit www.sco.com/novell."

      Both the links in there are 404s now.
  • by ZachPruckowski (918562) <zachary.pruckowski@gmail.com> on Wednesday June 28, 2006 @10:02PM (#15625375)
    I'm sort of worried here. Someone allay this fear:

    To a non-legal mind, this could be portrayed as "losing on a technicality". So my worry is that anti-Linux FUDders can point at this and say "Well, Linux dodged a bullet based on shoddy lawyering/poor rulings, so it's still risky". Granted, we know (and have known for a while) that SCO has a very weak cases, but PHBs don't, and Joe Average doesn't.

    My worry is that SCO dies quietly when it suddenly announces bankruptcy, screws it shareholders, and abruptly the lawsuits all vanish.
    • by Ungrounded Lightning (62228) on Wednesday June 28, 2006 @10:13PM (#15625410) Journal
      My worry is that SCO dies quietly when it suddenly announces bankruptcy, screws it shareholders, and abruptly the lawsuits all vanish.

      Go to the bankruptcy auction.

      Bid a dollar for any of SCO's remaining IP claims.

      Contribute them to EFF.

      B-)

      Can you IMAGINE anyone - with the possible exception of Micro$oft - actually CONSIDERING pressing those claims after SCO was driven into bankruptcy trying it?

      For that matter, can you imagine Micro$oft even bidding on them, after all their antitrust suit losses?
    • No way, man (Score:2, Insightful)

      by Anonymous Coward
      If you read the ruling its clear that this is no "technicality". This was a massive failure by SCO to produce any of the evidence they alleged they had. The court ordered them no less than 3 times to provide the required specificity. They just went 'la la la' and tried to get away with not providing it.

      Knowing full well that this would eventually happen, don't you think that if SCO had ANY evidence worth even a wet fart, they'd have produced it during discovery? They have nothing, and everyone knows it.
      • Re:No way, man (Score:4, Insightful)

        by ZachPruckowski (918562) <zachary.pruckowski@gmail.com> on Wednesday June 28, 2006 @10:27PM (#15625461)
        I know that SCO had no evidence. I know that the remaining claims are totally gonna flop.

        But Linux's great disadvantage is that it has no single voice speaking for it. So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.
        • Re:No way, man (Score:4, Insightful)

          by Anonymous Coward on Wednesday June 28, 2006 @11:37PM (#15625677)
          But Linux's great disadvantage is that it has no single voice speaking for it. So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.


          But in this particular case IBM will speak up as they are the injured party and if the "talking head" goes too far slander and libel cases will appear.

          It may be a mountain of code but they can quote The SCO Groups claims of having "a mountain of evidence" and not needing discovery because they were ready to go directly to trial. Then of course the SCO Group demanded ever higher mountains of code to search through for the evidence they claimed to already have but which even given 3 years they haven't yet presented it to the judge.

          'Those are the nazgul. Once they were human, now they are IBM's lawyers.'
          • Worse than that, if the "talking head" goes too far, Lanham Act claims will appear (and the "Get the Facts" campaign is already pretty close to the line).
        • Re:No way, man (Score:3, Insightful)

          by Khaed (544779)
          IBM is speaking for Linux, in this case.
        • I doubt it (Score:3, Insightful)

          by Weaselmancer (533834)

          So MS or whoever will be spinning the saga in a year or two as "hey, they were still looking, that's a lot of code", and make it out as a travesty of justice.

          I doubt anyone will be saying that. Reason being - you file a lawsuit against someone after you discover that they have injured you in some way. Nobody files a suit and then looks for their injury. Except SCO, for some bizarre reason.

    • This is great (Score:4, Insightful)

      by HangingChad (677530) on Wednesday June 28, 2006 @10:47PM (#15625518) Homepage
      To a non-legal mind, this could be portrayed as "losing on a technicality".

      Not by a long shot. It's a bit more than a technicality when a federal judge writes in a decision that you:

      - Ignored court orders for specificity

      - Implied you tried to game the system and bs the judges

      - The judge takes time to point out how you lied to your stockholders in the press

      - The court stops speaking legalesse and says something like, "The court finds SCO's arguments unpersuasive."

      - The court says you didn't meet the standard of proof you requested of the defense (the burden of proof is on you)

      - And that your failures were willful

      That's a long way from a technicality. That's SCO getting gut shot and left to wander around in extreme pain while they bleed out and die.

      • At what point can a case like this be dismissed "with prejudice"?

        C//
        • Re:This is great (Score:4, Informative)

          by rm69990 (885744) on Thursday June 29, 2006 @12:41AM (#15625853)
          It WON'T be dismissed with prejudice. The case will continue. IBM will most likely win the case by summary judgement (much better than the case just being dismissed, as it will cost SCO big time). IBM will most likely win their counterclaims, putting SCO into bankruptcy. That is, unless Novell cleans out SCO on their own claims first, as Novell is gunning for SCO as well, both through arbitration between SUSE and SCO, and Novell's counterclaims where they accuse SCO of embezzling their money and ask that the full sum of money be awarded to Novell that SCO collected from Microsoft, Sun and Linux users.

          SUSE assigned a value over $50 million dollars to the arbitration alone. Novell is countersuing SCO for over $25 million when you include their failure to remit royalties and slander of title counterclaims. SCO currently has $28 million in assets, far short of what their legal adversaries are claiming against them for, when you add in Red Hat's claims and IBM's counterclaims. http://finance.google.com/finance?fstype=bi&cid=66 4357 [google.com]

          SCO is toast, plain and simple. The time for the case to merely be dismissed has come and gone, which is a GOOD THING, not a bad thing, since SCO will now have to face the consequences for their actions.
    • My worry is that SCO dies quietly when it suddenly announces bankruptcy, screws it shareholders, and abruptly the lawsuits all vanish.

      If people still have shares in SCO yet, they are either complete idiots or have a broker that should be hung!
      • > If people still have shares in SCO yet, they are either complete idiots or have a broker that should be hung!

        Well, *someone* must have them...I mean, they only get traded. If no one wants to buy them, then you're stuck with them.

        I wonder what kind of liability comes with owning the shares....
    • It doesn't matter if it's "on a technicality" or not! Once this case is lost, SCO will be barred from bringing the same claims again. So there's no risk. Plus, there's IBM's counterclaims. If IBM wins some of those (particularly, the sixth, for violation of the GPL), there's going to be no wriggle-room left. Look, this is IBM we're talking about! They've invested billions into Linux. There is no way they're going to leave the doors open for on-going FUD! They invented FUD! They know everything ther
  • by Animats (122034) on Wednesday June 28, 2006 @10:10PM (#15625395) Homepage

    It's worth reading the entire order from Judge Wells. However, for the benefit of those who don't enjoy reading legal documents, here's are the highlights. These are the Judge's words:

    • As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public. At a trade show in 2003 SCO shared with the public a presentation outlining SCO's claims against IBM. SCO identified four categories of alleged misappropriation: ... Finally, in the presentation SCO also gave "one example of many" of line by line copying between the System V Code and Linux kernel code.14
    • SCO ... was ordered .... to provide and identify with specificity all lines of code in Linux that it claims rights to.
    • In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball's order entered in July 2005.
    • SCO was ordered on multiple occasions to answer IBM's interrogatories which in this court's view covered methods and concepts and a request for the code behind them. Thus, SCO's failure to provide code for the methods and concepts it claims were misappropriated is also a violation of Rule 26(e) in addition to a violation of this court's orders.
    • Based on the foregoing, the court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO. The court further finds that such failure was intentional and therefore willful based on SCO's disregard of the court's orders and failure to seek clarification. In the 118 view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put "all evidence . . . on the table." Accordingly, the court finds that SCO willfully failed to comply with the court's orders.
    • Based on the foregoing, the court GRANTS in PART IBM's Motion to Limit SCO's Claims.

    Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court. There are a few minor claims remaining, but they're minor and mostly related to old contractual issues that can only involve IBM, not third parties using Linux.

    This is all still pretrial manuvering, during which the case becomes better defined. In the next phase, we have "dispositive motions", which will probably include a motion by IBM for summary judgement against SCO. Some more SCO claims will probably be thrown out at that phase.

    • by swillden (191260) * <shawn-ds@willden.org> on Wednesday June 28, 2006 @11:31PM (#15625662) Homepage Journal

      Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court.

      No, I don't think this is correct. SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints. Everything that has been left is related to their contract claims against IBM. SCO is saying that IBM should not have put stuff into Linux that it got from Unix because IBM's contract with AT&T (of whom SCO claims to be successor in interest) required IBM to keep it confidential, not because there's any actual copyright infringement.

      What has happened here is that the court has thrown out many of SCO's allegations of contract violation because SCO couldn't define the allegations. Many more will undoubtedly get thrown out in summary judgements when the court determines that SCO's allegations are over Unix information (methods and concepts) that are and have been public for a long time. Then, finally, assuming SCO doesn't evaporate before then, SCO's basic theory about what the IBM/AT&T contract says will be ajudicated, at which point the rest of the complaints will be tossed, because the contract doesn't say that IBM's own code that happened to rub up against AT&T's code falls under the terms of the contract, and because AT&T explicitly clarified this point to IBM and the other licensees.

      And, at some point in there, the court will get to rule on some of IBM's allegations about SCO's misconduct -- Lanham Act violations (essentially false advertising), tortious interference with business and, sweetest of all, straight up copyright infringement from SCO's distribution of IBM's code in Linux. The only permission SCO had to distribute IBM's code was the GPL, and SCO stopped providing source code after they started this lawsuit, violating the terms of the GPL and thereby rescinding the GPL-provided permission.

      • by schon (31600) on Thursday June 29, 2006 @12:23AM (#15625799)
        SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints.

        Yes, they did, however they have since apparently changed their mind, and tried inserting copyright claims back in (at the 14th hour*) through "expert" reports filed last month.
      • Not exactly. (Score:4, Informative)

        by Jaywalk (94910) on Thursday June 29, 2006 @12:33AM (#15625830) Homepage
        Essentially, the claims of copyright infringment in Linux based on UNIX source code just got thrown out of court. ... SCO withdrew all of their allegations of copyright infringement in one of their early amended complaints.
        It would be more accurate to say that SCO tried to withdraw all their allegations of copyright infringement. SCO has been flip-flopping on the issue; talking copyright when it suited them, but then saying that it was purely a contract case when they were pressed. But the judge ruled that the case clearly hinged on copyrights no matter how SCO tried to spin things. SCO still tries to avoid the copyright issue, but if the judge wants to hear about copyrights, there's not much they can do.

        At a minimum, IBM's sixth counterclaim is for breach of the GPL, which is based on copyright law.
      • IBM's 10th counterclaim asks the court to rule that Linux doesn't infringe on SCO's copyrights, so even if SCO isn't claiming against IBM for Copyright infringement, it is still very much a part of the case, and SCO was required to attempt to prove their Linux claims in their December production.
    • Your comment is not accurate. No one, other than IBM SCO and the court, know what the remaining claims are. There were over 100 that were not mentioned in this document, because IBM didn't try to have them limited in this motion. We simply don't know whether they are copyright, contract or M&C related.
    • The key words here are: "SCO ... was ordered .... to provide and identify with specificity all lines of code in Linux that it claims rights to", "SCO's failure to provide code for the methods and concepts it claims were misappropriated is also a violation of Rule 26(e) in addition to a violation of this court's orders.", "such failure was intentional and therefore willful" and "the court finds that SCO willfully failed to comply with the court's orders". That's the way Judges talk when they are planning o
  • Truth nuggets (Score:3, Informative)

    by jonathan_95060 (69789) on Wednesday June 28, 2006 @10:32PM (#15625477)
    Here is my favorite nugget from the order:


    Finally, after IBM received SCO's interim alleged
    misappropriated submissions, IBM informed SCO that the
    submissions were not specific enough. IBM warned SCO that if the
    final submissions were of the same level of specificity court
    intervention would be sought. Tellingly, SCO did not seek court
    guidance as to the required level of specificity after IBM
    disagreed with SCO's interpretation of the court's orders.



    Of course they didn't because their whole game is to stall stall stall.
  • by ZachPruckowski (918562) <zachary.pruckowski@gmail.com> on Wednesday June 28, 2006 @10:58PM (#15625553)
    How does this affect the Red Hat and Novell cases? I seem to recall they were waiting on a decision here, but since they also deal with Linux code ownership, could any of the now-dead claims come back up in those cases?
    • by rm69990 (885744) on Thursday June 29, 2006 @12:54AM (#15625893)
      There are still over 100 claims from SCO that have to be dealt with before Red Hat can proceed. We don't know whether they involve copyrights or not. Remember, IBM DID NOT try to limit all of SCO's claims, because some were specified correctly. IBM has made it clear that they will deal with those claims by Summary Judgement, which hasn't happened yet. SCO, at this point in time, still has over 100 claims in play (I'm not saying anything about the validity of those claims, just saying that they are still going to trial).

      No part of the Novell case relies on this, plain and simple. The Novell case is (maybe) being stayed based on arbitration ongoing between SUSE and SCO, and the arbitration is ongoing irregardless of what happens between SCO and IBM. The rest of the SCO v. Novell is based on a contract dispute regarding the terms of the APA, which has absolutely nothing to do with this.
  • I wonder what legal fallout there will be from idiots who bought Linux "licenses" from SCO when the the judge finds in IBM's favor. I think one could make a definite argument for fraud.
  • by SIGBUS (8236) on Wednesday June 28, 2006 @11:38PM (#15625679) Homepage
    * kitten is on the prowl
    <cicada> Bzzz!
    <kitten> *jumps* wtf?
    <cicada> Bzzzzzzzzzzzzzz!
    * kitten walks toward cicada
    <cicada> BZZZZZZZZZZZZZZZZZZZZZ!
    <kitten> CHOMP! -chomp- -chomp- *gulp*
    * cicada has left channel #meatspace (Ouch!)
    <SIGBUS> Hey, that was a Quality Kill! Good kitty!
    * kitten purrs
    * kitten is on the prowl
  • by davmoo (63521)
    Who? SCO? What's a 'SCO'? Oh, wait!!! Yeah, I know!!! I remember now!!!

    SCO is that company that was never relavant to the computer industry even in the best of times. And finally after not being able to create or innovate, they decided to litigate. And apparently they aren't even any good at that...
  • You know, the ones that like to say "PJ over at groklaw is an SCO hater that only presents one side of the story. SCO is going to win". LOL. How often have these bozos been wrong about this case? How often has PJ been wrong? Aside from Groklaw I don't see any reporting on this ;^)
  • Willful vs Bad Faith (Score:4, Interesting)

    by jonathan_95060 (69789) on Thursday June 29, 2006 @12:56AM (#15625899)
    The fact that the Judge sanctioned SCO for "willful disobedience" rather than "bad faith" is analogous to Scooter Libby being charged with obstruction of justice rather than treason or some other more serious crime. In both cases the judge/procecutor/investigator knows the party is guilty as hell but life is easier by going with the easier to prove charge.

    The judge is simply trying to avoid wasting appellate judges time by not giving SCO anything they can reasonably dispute (i.e. "it wasn't bad faith because she can't read our mind").

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