IBM Motion to Limit SCO Claims Granted 195
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."
IBM- doing the right thing? (Score:5, Insightful)
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!
IBM saw it for what it is. (Score:5, Insightful)
Not quite. (Score:2, Insightful)
Re:Not quite. (Score:5, Insightful)
Re:Not quite. (Score:3, Funny)
Re:Not quite. (Score:2)
she ...
Re:Not quite. (Score:3, Insightful)
Re:Not quite. (Score:3, Interesting)
They're only still in business because they've had several rounds of additional funding since the beginning of the trial, most of which looks as though it can be traced to a certain company whose name begins with "M" and which complains about Linux a lot. As of their last financial statement, they're hemorraging money at a rate that will bankrupt them shortly before opening statements in the IBM trial. Even if Bi
Re:Not quite. (Score:2)
Re:IBM saw it for what it is. (Score:5, Interesting)
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.
Re:IBM saw it for what it is. (Score:5, Funny)
"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?
Re:IBM saw it for what it is. (Score:2)
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.
Re:IBM saw it for what it is. (Score:4, Informative)
Re:IBM saw it for what it is. (Score:3, Informative)
Re:IBM saw it for what it is. (Score:5, Insightful)
Re:IBM saw it for what it is. (Score:5, Insightful)
If the judge truly thought the plaintif was slimy, then the case would have been dismissed right away.
And the appellate court would throw it right back, and possibly reprimand the judge for circumventing due process. Even obnoxious plaintiffs have the right to have their case heard if it contains any merit at all, and in a complex case like this one it's rather difficult to say with certainty that there is no merit to be found. The only way to make that determination is to go through discovery, and that's what the judge has to do, even if the odds of finding something worth suing over are slim.
Judges are not dumb
Exactly. They're not dumb, and they don't like to be reversed, or reprimanded, by courts of appeals whose focus is the evaluation of the lower court's procedures, not the merits of the case.
Re:IBM saw it for what it is. (Score:2)
Re:IBM saw it for what it is. (Score:3, Insightful)
Re:IBM saw it for what it is. (Score:2)
Re:IBM- doing the right thing? (Score:2)
Re:IBM- doing the right thing? (Score:4, Insightful)
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.
Re:IBM- doing the right thing? (Score:2)
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
Re:IBM- doing the right thing? (Score:4, Insightful)
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.
Re:IBM- doing the right thing? (Score:4, Interesting)
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.
Re:IBM- doing the right thing? (Score:2)
Yeah, imagine if they used gallons of Monsanto insectiside, fertilizer and GM seeds instead of the organic systems they use now!
At this point... (Score:2)
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.
Re:IBM- doing the right thing? (Score:4, Informative)
Don't read much into them defending themselves, if it was a few million dollars, it would be done. It was a few billion, they might be able to afford it but you're not going to get a billion dollars from them without a fight. No - even if it was a "few million" it wouldn't have ever been done, because IBM knows that once someone does it to them, others will try the same tactic.
To put it into its proper perspective - they wouldn't have done the deal even for a few thousand.
Also, in the beginning SCO was making noises in the background of "about $25 million" and IBM basically tod them to FOAD.
There's SCO business... (Score:2)
OK... taking bets now... how long before SCO goes completely?
Re:There's SCO business... (Score:5, Interesting)
Over under (Score:3, Insightful)
Re:There's SCO business... (Score:5, Interesting)
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.
Re:There's SCO business... (Score:2)
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
Re:There's SCO business... (Score:2)
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.
Re:There's SCO business... (Score:2)
Re:There's SCO business... (Score:5, Insightful)
Interesting possibility (Score:4, Funny)
Wouldn't that be fun!
Re:Interesting possibility (Score:3, Insightful)
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
Re:Interesting possibility (Score:3, Insightful)
SCOG would have to own them first.
Re:There's SCO business... (Score:2)
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.
this emascualtes SCO's case (Score:5, Insightful)
SCO are finished.
Re:this emascualtes SCO's case (Score:5, Insightful)
Re:this emascualtes SCO's case (Score:5, Insightful)
> 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
Re:this emascualtes SCO's case (Score:2)
--MarkusQ
Re:this emascualtes SCO's case (Score:5, Interesting)
More importantly, the big patent holders don't want patent wars before software patents are properly established in Europe.
Re:this emascualtes SCO's case (Score:2)
I'd like to file a motion of my own (Score:5, Funny)
Anyone want to second?
Re:I'd like to file a motion of my own (Score:4, Funny)
BUT....
Does that mean it will be followed up by "Intelligent Microsoftism"?
I'll pass.
Re:I'd like to file a motion of my own (Score:5, Funny)
Re:I'd like to file a motion of my own (Score:2)
Re:I'd like to file a motion of my own (Score:2)
Sounds good to me. Now, we can have a video of Darl McBride dancing around and going "Woooh! Give it up for me!"
Or, perhaps you mean that IBM will ultimately get fined $50, which will be overturned on appeal.
Re:I'd like to file a motion of my own (Score:2, Funny)
Re: (Score:3, Informative)
A very thorough piece of work. (Score:5, Informative)
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.
Re:A very thorough piece of work. (Score:4, Interesting)
Re:A very thorough piece of work. (Score:5, Interesting)
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:
Re:A very thorough piece of work. (Score:4, Funny)
Probably it was the $250 cookie recipe.
Oops, here's the text (Score:3, Informative)
"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 concetps formed "the basis of their action
against IBM." At a minimum, SCO should have identified the code behind their
methods and conceptws in the final submission pursu
Geocities? (Score:3, Funny)
Re:Geocities? (Score:2)
Re:Geocities? (Score:5, Informative)
*snif* so beautiful... (Score:4, Insightful)
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)
Re:Pro-SCO (Score:2)
upside -- it would be a fun domain to use.
downside -- sco would get $75 more than they deserve.
decisions, decisions.
Re:Pro-SCO (Score:3, Interesting)
"SCO is anticipating that it will use this site as the future home for all information relating to SCO's pending lawsuits and related issues. For current information about SCO's suit against IBM, please visit www.sco.com/ibmlawsuit, and about SCO's suit against Novell, please visit www.sco.com/novell."
Both the links in there are 404s now.
This isn't all that great... (Score:4, Interesting)
To a non-legal mind, this could be portrayed as "losing on a technicality". So my worry is that anti-Linux FUDders can point at this and say "Well, Linux dodged a bullet based on shoddy lawyering/poor rulings, so it's still risky". Granted, we know (and have known for a while) that SCO has a very weak cases, but PHBs don't, and Joe Average doesn't.
My worry is that SCO dies quietly when it suddenly announces bankruptcy, screws it shareholders, and abruptly the lawsuits all vanish.
Re:This isn't all that great... (Score:4, Interesting)
Go to the bankruptcy auction.
Bid a dollar for any of SCO's remaining IP claims.
Contribute them to EFF.
B-)
Can you IMAGINE anyone - with the possible exception of Micro$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)
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)
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)
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.'
Re:No way, man (Score:2)
Re:No way, man (Score:3, Insightful)
I doubt it (Score:3, Insightful)
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)
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.
Re:This is great (Score:2)
C//
Re:This is great (Score:4, Informative)
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=6
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.
Re:This isn't all that great... (Score:2)
If people still have shares in SCO yet, they are either complete idiots or have a broker that should be hung!
Re:This isn't all that great... (Score:2)
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....
Re:This isn't all that great... (Score:3, Insightful)
Re:This isn't all that great... (Score:5, Insightful)
1) you, me, and everyone here know that SCO was totally baseless, IBM couldn't lose this case.
2) there are people who know what SCO, IBM, and Linux are, and that Linux and IBM won against SCO. They are the semi-literate tech bosses.
3) There are the PHBs of the world (and the sheeple), who don't know the Internet from IE, and don't know Windows from Word. They haven't heard of Linux or SCO.
MS rep comes around, does his "buy more licenses/longer contract" spiel. If the company has any interest in going to Linux, he'll work to dissuade them, via TCO, transition costs, and FUD.
Group 1 will respond with "SCO was total BS, and you know it".
Group 2 will be like "But IBM/RedHat/Novell won", and MS says "They got off b/c of a judge's ruling dismissing half the case"
Group 3 will only hear "IP issues, licensing dispute, still in appeal, very messy" and re-sign with MS.
The truth isn't as important as perception, unfortunately.
Re:SCO bankruptcy (Score:2)
Can you expand on the legal theory behind this, or is it just wishful thinking?
Certainly he enriched himself beyond belief by lying, so he *should* go to jail, but on what specific charge? Fraud? Securities fraud? Extortion?
I see him as open to Slander and Libel suits. Perhaps those could strip him of some of his ill-gotten gains, but I don't think they could land him in jail.
Key extracts from the Judge's order (Score:5, Informative)
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:
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.
Re:Key extracts from the Judge's order (Score:5, Informative)
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.
Re:Key extracts from the Judge's order (Score:4, Interesting)
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)
At a minimum, IBM's sixth counterclaim is for breach of the GPL, which is based on copyright law.
Re:Key extracts from the Judge's order (Score:3, Insightful)
Re:Key extracts from the Judge's order (Score:2)
Re:Key extracts from the Judge's order (Score:2, Insightful)
Re:Key extracts from the Judge's order (Score:2)
Truth nuggets (Score:3, Informative)
Of course they didn't because their whole game is to stall stall stall.
Red Hat and Novell Cases? (Score:3, Interesting)
Re:Red Hat and Novell Cases? (Score:4, Insightful)
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.
Fallout of Linux licenses? (Score:2)
Re:Fallout of Linux licenses? (Score:2)
SCO vs. IBM, in IRC format (Score:5, Funny)
<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
Who? (Score:2)
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...
Where are the pro SCO journalists? (Score:2, Insightful)
Willful vs Bad Faith (Score:4, Interesting)
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").
Re:Granted IN PART (Score:5, Informative)
SCO made 294 claims.
IBM objected to 198 of the claims.
Judge Wells allowed 17 of IBM's 198 disputed claims and barred the rest.
That leaves 117 of SCO's 294 claims standing. ~66% gone.
1 really damn good read. Judge Wells's order was fantastically fun.
Re:Granted IN PART (Score:4, Interesting)
Judge Wells allowed *11* of IBM's 198 disputed claims (23, 43, 90, 94, 186-192) and barred the rest.
What's left. (Score:5, Insightful)
Three of the claims IBM objected to were "negative know how". SCO argued that these were cases where IBM figured out how to contribute something to Linux because they saw how UNIX got it wrong. In other words, that IBM infringed SCO's intellectual property by not using SCO's source code. Wells expressed doubt about the argument -- calling it a "tenuous position" -- but accepted that there was good reason for not providing the source code.
The rest of the claims she allowed really weren't about coding at all. They were claims that IBM employees who worked on Dynix were contractually prohibited from working on Linux. Again, she wasn't ruling on the merits but agreed that this was a case where source code wouldn't be expected.
Finally, there are the items IBM didn't object to; the ones where SCO actually provided source code references. IBM has already said that it's planning to deal with these with a request for summary judgement.
Also on the chopping block, there's another motion on the table by IBM to scrap most of SCO's expert witnesses. It seems SCO was trying to use those witnesses to add a bunch more code to their "final" list of allegedly infringing material. It remains to be seen how much of that survives.
In a nutshell, it doesn't look like enough of SCO's case will survive long enough to make it to trial.