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IBM Motion to Limit SCO Claims Granted

samzenpus posted more than 8 years ago | from the I-missed-these-guys dept.

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."

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Granted IN PART (0)

Anonymous Coward | more than 8 years ago | (#15625230)

There were 10 claims that IBM objected to that were not barred.

Re:Granted IN PART (5, Informative)

Monokeros (200892) | more than 8 years ago | (#15625451)

21 actually

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 (4, Interesting)

Monokeros (200892) | more than 8 years ago | (#15625475)

GAH! I corrected you and screwed up the numbers myself.
Judge Wells allowed *11* of IBM's 198 disputed claims (23, 43, 90, 94, 186-192) and barred the rest.

What's left. (4, Insightful)

Jaywalk (94910) | more than 8 years ago | (#15625762)

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.
IBM's motion was pretty simple. The court ordered SCO to produce source code and SCO didn't do that. What's left is the stuff where source code was provided or wasn't necessary and it's pretty weak stuff.

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.

IBM- doing the right thing? (5, Insightful)

beheaderaswp (549877) | more than 8 years ago | (#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!

Re:IBM- doing the right thing? (0)

Anonymous Coward | more than 8 years ago | (#15625242)

IBM isn't completely evil. They aren't completely good either.

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.

Re:IBM- doing the right thing? (3, Informative)

tomhudson (43916) | more than 8 years ago | (#15625308)

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.

IBM saw it for what it is. (5, Insightful)

Lead Butthead (321013) | more than 8 years ago | (#15625255)

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. (2, Insightful)

Frosty Piss (770223) | more than 8 years ago | (#15625411)

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.

Re:Not quite. (5, Insightful)

Ohreally_factor (593551) | more than 8 years ago | (#15625452)

Apparently, you aren't familiar with IBM's legal reputation. Their legal department has been nicknamed the Nazgul [wikipedia.org] . 'Nuff said.

Re:Not quite. (3, Funny)

Anonymous Coward | more than 8 years ago | (#15625622)

They're afraid of water?

Re:Not quite. (1)

r00tman (933759) | more than 8 years ago | (#15625733)

Yes, and as a result they don't take showers. With that kind of B.O., it's no wonder the judge dismissed 185 allegations...he was compelled to do it!

Re:Not quite. (1)

rgmoore (133276) | more than 8 years ago | (#15625692)

The problem isn't with SCO bleeding them. The best guess is that SCO wanted to be bought out, which IBM could have done for pocket change. The problem is that caving in to an extortionist sends a bad message- that extortion pays and IBM is signing the checks. That's a message that IBM is not understandably not eager to broadcast. Instead they've decided to squish SCO like a bug, which sends the message that trying to extort IBM is likely to lead to a painful bankruptcy.

Re:Not quite. (1)

Frosty Piss (770223) | more than 8 years ago | (#15625852)

Instead they've decided to squish SCO like a bug, which sends the message that trying to extort IBM is likely to lead to a painful bankruptcy.

Painful bankruptcy? I think sueing IBM was a very good business decision on SCO's part. Note the fact that they are still very much in business, and will be for several more years. Where would they be now had they not sued IBM? Long gone.

Re:IBM saw it for what it is. (1)

Hoolala (976766) | more than 8 years ago | (#15625428)

I wouldn't bet the winner until the fat lady has sung. Sure, we all hope that IBM squash SCO, but think how long the battle has been. If it was crystal clear for everyone to see that IBM is in the right, then it should have been over by now. However, if it was not crystal clear for everyone, that means that there may be folks (judge/jury) that may get swayed by SCO. The general public does not always perceive the world the way geeks do -- nothing said about which way is better.

====

Beaches and Las Vegas Deals at http://buddytrace.com/ [buddytrace.com]

http://buddytrace.com/ [buddytrace.com]

Re:IBM saw it for what it is. (4, Insightful)

grasshoppa (657393) | more than 8 years ago | (#15625534)

Actually, in clear cut cases like this, where the plaintif is slimy, the judge will force everyone to cross the t's and dot the i's, creating the length of trial we see here. Further, there is a shit load of crap to go over ( purposely, I'm sure ). So this case will take a while, but it won't keep getting appealed because this judge is doing a complete job.

Re:IBM saw it for what it is. (1)

Hoolala (976766) | more than 8 years ago | (#15625555)

Your logic makes no sense buddy. The judge does not just wake up one morning and decide that the plaintif is slimy. If the judge truly thought the plaintif was slimy, then the case would have been dismissed right away. Judges are not dumb. The reason it has taken so long is because the judge must have felt that the case has some merits.

Re:IBM saw it for what it is. (4, Insightful)

swillden (191260) | more than 8 years ago | (#15625617)

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. (1)

Hoolala (976766) | more than 8 years ago | (#15625637)

Judge sees slimy plaintif, Judge crosses Ts and dots Is so slimy plaintif does not get away seems something pulled out of a deep smelly hole of non sequitur logic... Do you have anything to backup your premises and conclusion? Again, judges are there to make judgments based on the presented facts and they need and usually stay impartial and neutral. Judges do not decide that a plaintif is slimy and therefore I need to be really careful so I can stick it to the slime and make it sticks. If you disagree, provide some real-life examples please...

Re:IBM saw it for what it is. (2, Insightful)

alshithead (981606) | more than 8 years ago | (#15625698)

If you think judges are always completely impartial and act that way then you need to expose yourself to more law. There's a reason judges occasionally go to jail or get thrown off the bench. They're human and therefore subject to all of our failings. In some places the law means nothing more than who you know and if you are in the judge's circle of lawyer friends. If you are, you will get decisions others who aren't in the circle wouldn't. My stepson's case is a perfect example. Without the right connections I'm sure his VERY expensive lawyer would not have succeeded in getting him another chance. He would be a naive, immature, 19 year old, 150 pound boy getting his ass pounded in state prison when what he really needed was serious psychiatric care. The prosecutor knew all of the facts but she didn't care what was right...all she wanted is to be relected. You'll never find a "Fair Witness" type judge like in a Heinlein novel.

Re:IBM saw it for what it is. (1)

Hoolala (976766) | more than 8 years ago | (#15625705)

Well, Al Shithead, Show me proof the judge in the IBM and SCO case is partial and really wants to nail SCO and that's why the case has dragged on for so long.

Re:IBM saw it for what it is. (1)

alshithead (981606) | more than 8 years ago | (#15625714)

I'm not claiming he is. Only that it is plausible.

Re:IBM saw it for what it is. (4, Interesting)

trewornan (608722) | more than 8 years ago | (#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.

Re:IBM- doing the right thing? (1, Funny)

rts008 (812749) | more than 8 years ago | (#15625267)

Since I don't currently have mod points..... MOD THIS ONE INSIGHTFUL!!!

Okay, got that out of my system, but, really, if I had the MODPOWER of /., you would get some +insightful, and + some interesting with this post.

Someone please think of the mod points ( f*sk the children!)

Re:IBM- doing the right thing? (1)

alshithead (981606) | more than 8 years ago | (#15625365)

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.

Re:IBM- doing the right thing? (4, Insightful)

Pharmboy (216950) | more than 8 years ago | (#15625392)

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.

Re:IBM- doing the right thing? (1)

alshithead (981606) | more than 8 years ago | (#15625657)

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 supporting a position that most of us are happy about. There is no guarantee that the money they are spending on this effort will be recouped in future sales. I'd like to hope that someone in power at IBM actually gives a shit.

Re:IBM- doing the right thing? (0)

Anonymous Coward | more than 8 years ago | (#15625711)

I don't think IBM gives a whit about ethics or the future sales from this crowd. Most of the fanboys shining IBM's codpiece here don't even really have a clue what IBM sells anyway. It's more of a question of not being shaken down by failed technology company that IBM may have done business with. You'll note that IBM has not officially reacted to this as a FUD issue.

Re:IBM- doing the right thing? (3, Insightful)

honkycat (249849) | more than 8 years ago | (#15625834)

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.

Re:IBM- doing the right thing? (1)

kwanbis (597419) | more than 8 years ago | (#15625373)

totally agree with you. Go IBM!

At this point... (1)

MoxFulder (159829) | more than 8 years ago | (#15625624)

... 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.

There's SCO business... (1)

Audent (35893) | more than 8 years ago | (#15625240)

Like SCO business...

OK... taking bets now... how long before SCO goes completely?

Re:There's SCO business... (4, Interesting)

beheaderaswp (549877) | more than 8 years ago | (#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 (2, Insightful)

Mateo_LeFou (859634) | more than 8 years ago | (#15625303)

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!

Re:There's SCO business... (4, Interesting)

cmowire (254489) | more than 8 years ago | (#15625327)

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.

Re:There's SCO business... (0)

Anonymous Coward | more than 8 years ago | (#15625381)

Old SCO felt ripped off by IBM over the Project Monterey IA64 UNIX thing.
New SCO felt ripped off that they'd been cut out of the enterprise market by RedHat, with IBM's assistance.
Both businesses were folding and needed a Hail Mary.
Microsoft likely did not put them up to it, but certainly did assist them in getting capital to proceed with this.

Re:There's SCO business... (0)

Anonymous Coward | more than 8 years ago | (#15625414)

You are clueless. Old SCO (Santa Cruz Operation) is a completely seperate corporation, under a different name, and has no horse in this race whatsoever.

Re:There's SCO business... (0)

Anonymous Coward | more than 8 years ago | (#15625479)

Well, Darl's clueless, and you're clueless, but I am clueful.

Caldera did in fact believe they got some good legal dirt along with the UNIX business from SCO. Or so they said.

Re:There's SCO business... (1)

ZachPruckowski (918562) | more than 8 years ago | (#15625430)

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 really believed Linux was doomed, but it's hard to prove he didn't believe what he was preaching.

There's also the Baystar loans thing, right? But isn't that an issue of interlocking directorates? I mean, at worst you could nail a few MS execs, but not MS, right?

Hope I'm wrong, because MS is IMHO backing SCO or at least cheering them on, so I hope they get hit for it.

Re:There's SCO business... (1)

beheaderaswp (549877) | more than 8 years ago | (#15625463)

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.

Re:There's SCO business... (1)

ZachPruckowski (918562) | more than 8 years ago | (#15625501)

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.

Re:There's SCO business... (1)

fishyfool (854019) | more than 8 years ago | (#15625651)

the Anderer memo shines a light on Microsoft setting up the Baystar deal.

Re:There's SCO business... (4, Insightful)

dbIII (701233) | more than 8 years ago | (#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.

Re:There's SCO business... (1)

kilodelta (843627) | more than 8 years ago | (#15625586)

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.

Re:There's SCO business... (1)

AvitarX (172628) | more than 8 years ago | (#15625623)

If they were burried in decades of documents do you think it would speed things up?

this emascualtes SCO's case (5, Insightful)

close_wait (697035) | more than 8 years ago | (#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.

Re:this emascualtes SCO's case (4, Insightful)

killjoe (766577) | more than 8 years ago | (#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.

Re:this emascualtes SCO's case (5, Insightful)

jmorris42 (1458) | more than 8 years ago | (#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.

Re:this emascualtes SCO's case (1)

MarkusQ (450076) | more than 8 years ago | (#15625772)

Great analysis. Part of me wants to say it's not as dramatic as you make it sound, but I suspect that part of me is wrong. In any case, it's crystal clear if you are, as you say, cynical enough.

--MarkusQ

Re:this emascualtes SCO's case (1)

rm69990 (885744) | more than 8 years ago | (#15625795)

Hows about: "Novell owns the copyrights, SCO has shown no document transfering the copyrights, SCO thus has no standing to sue"

I'd like to file a motion of my own (4, Funny)

Junior J. Junior III (192702) | more than 8 years ago | (#15625250)

Move to call the trial "The SCO Monkey Trial".

Anyone want to second?

Re:I'd like to file a motion of my own (3, Funny)

beheaderaswp (549877) | more than 8 years ago | (#15625281)

Second-

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 (4, Funny)

Junior J. Junior III (192702) | more than 8 years ago | (#15625310)

Nah, it has already been proven that Microsoft doesn't design anything.

Re:I'd like to file a motion of my own (1)

beheaderaswp (549877) | more than 8 years ago | (#15625314)

I KNEW someone would say that~!

Re:I'd like to file a motion of my own (1)

WilliamSChips (793741) | more than 8 years ago | (#15625456)

I think that's an oxymoron.

Re:I'd like to file a motion of my own (1)

rts008 (812749) | more than 8 years ago | (#15625282)

Seconded since I currently don't have mod points to give +2 insightful/interesting. ( yes, one of each for those curious!)

Re:I'd like to file a motion of my own (1)

Foobar of Borg (690622) | more than 8 years ago | (#15625297)

Move to call the trial "The SCO Monkey Trial".

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 (2, Funny)

ClamIAm (926466) | more than 8 years ago | (#15625307)

Well, with this news, it sounds like the scopes of the claims were changed. You could say SCO was trying to monkey with them, a trial which IBM will hopefully, in the end, pass.

A very thorough piece of work. (5, Informative)

Anonymous Coward | more than 8 years ago | (#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.

Re:A very thorough piece of work. (1)

MikePlacid (512819) | more than 8 years ago | (#15625295)

I liked this part:

>

Basically this was the most strange thing about SCO case - not specifying what they were talking about exactly.

Oops, here's the text (3, Informative)

MikePlacid (512819) | more than 8 years ago | (#15625306)

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 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 pursuant to this original order
entered in December 2003 ane Judge Kimball's order entered in July 2005.

Re:A very thorough piece of work. (3, Interesting)

brandonY (575282) | more than 8 years ago | (#15625532)

Wait, wait, wait, Sandeep Gupta testified for SCO? But he got an IBM Graduate Fellowship (September '88 -- May '91). Irony!

Geocities? (2, Funny)

daeg (828071) | more than 8 years ago | (#15625265)

What genious linked to a Geocities site from a Slashdot posting? I mean... come on.

Re:Geocities? (1)

theArtificial (613980) | more than 8 years ago | (#15625287)

Yeah, Coral Cache (or other) should be a no brainer for links included in the summary. Anyone have a link to this site? :/

Re:Geocities? (5, Informative)

Anonymous Coward | more than 8 years ago | (#15625290)

coral cache [nyud.net]

Mod parent up (-1, Offtopic)

Anonymous Coward | more than 8 years ago | (#15625304)

Pithy comment to escape lameness filter.

it was down before the Slashdot article. (N/T) (0, Offtopic)

Grog6 (85859) | more than 8 years ago | (#15625409)

There is no text here. See? It says so...

*snif* so beautiful... (4, Insightful)

Anonymous Coward | more than 8 years ago | (#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 (5, Interesting)

PavementPizza (907876) | more than 8 years ago | (#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.

This isn't all that great... (3, Interesting)

ZachPruckowski (918562) | more than 8 years ago | (#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.

Re: Losing on a technicality (1, Insightful)

Anonymous Coward | more than 8 years ago | (#15625390)

But the technicality was, "you never made anything but a vacuous charge." The rtuling was a "Where's the beef" ruling.

Re:This isn't all that great... (3, Interesting)

Ungrounded Lightning (62228) | more than 8 years ago | (#15625410)

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 (2, Insightful)

Anonymous Coward | more than 8 years ago | (#15625418)

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 (3, Insightful)

ZachPruckowski (918562) | more than 8 years ago | (#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 (4, Insightful)

Anonymous Coward | more than 8 years ago | (#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.'

Re:No way, man (2, Insightful)

Khaed (544779) | more than 8 years ago | (#15625686)

IBM is speaking for Linux, in this case.

I doubt it (2, Insightful)

Weaselmancer (533834) | more than 8 years ago | (#15625749)

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.

SCO bankruptcy (1, Interesting)

Anonymous Coward | more than 8 years ago | (#15625435)

The case doesn't go away just because SCO goes bankrupt, especially not the counterclaims. What does happen is that the current management is kicked out and a bankruptcy trustee takes over. As long as the creditors (mostly Novell) agree, the trustee will craft any agreement that they want. In other words, the cases will be settled in a manner that benefits IBM, Novell, Red Hat and the Linux community in general. There will be a declaration that there is no code in Linux that violates any Unix copyrights.

It's not guaranteed to happen but there's a good chance that Darl will go to jail.

IBMs counterclaims will deal with that (1, Informative)

Anonymous Coward | more than 8 years ago | (#15625457)

IBM has filed counterclaims against SCO - which will ensure that there are definate rulings to show that LINUX is safe.
SCO can dodge their own claims..but they cant dodge IBM's Counter claims

And the Red Hat case also... n/t (1, Insightful)

Anonymous Coward | more than 8 years ago | (#15625839)

Red Hat wants a declaration of non-infringement

This is great (3, Insightful)

HangingChad (677530) | more than 8 years ago | (#15625518)

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.

Re:This is great (1)

Courageous (228506) | more than 8 years ago | (#15625689)

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

C//

Re:This is great (3, Informative)

rm69990 (885744) | more than 8 years ago | (#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.

Re:This isn't all that great... (1)

something_wicked_thi (918168) | more than 8 years ago | (#15625563)

That's true, to a point. After all, this is a rejection of the claims based on the lack of specificity instead of a lack of merit. However, there are two reasons why I have no doubt that it cannot be construed as you say. First, SCO was ordered by the court to provide that specificity and was given ample time to do so. That they still did not provide it demonstrates that SCO could not provide that specificity. Second, there are over 100 claims left to SCO. I expect all of them to be demolished by IBM in the coming months.

Oh, and one other point: the judge's point is that SCO failed to allege an actual violation. How could Linux have "dodged a bullet" when all of the dismissed claims were not actually real claims? If I say that Linux has copied Microsoft's USB infrastructure, for example, does that mean that, when I can't offer any proof, that Linux has "dodged a bullet"? Or, more likely, does it marganilize any other claims I might make?

Re:This isn't all that great... (4, Insightful)

ZachPruckowski (918562) | more than 8 years ago | (#15625629)

I don't think Linux "dodged a bullet" at all. but there are three groups of people with three levels of knowledge on the subject (I'm fast-forwarding 2 years here):
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:This isn't all that great... (1)

Vskye (9079) | more than 8 years ago | (#15625646)

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!

Re:This isn't all that great... (1, Funny)

Anonymous Coward | more than 8 years ago | (#15625854)

To have enough confidence to recommend SCO, he'd HAVE to be hung...

Key extracts from the Judge's order (5, Informative)

Animats (122034) | more than 8 years ago | (#15625395)

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.

Re:Key extracts from the Judge's order (1)

refriedchicken (961967) | more than 8 years ago | (#15625489)

"the court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO. " I knew it was getting bad, but suing yourself? I think the attorneys are the ones making out.

Re:Key extracts from the Judge's order (1)

Animats (122034) | more than 8 years ago | (#15625566)

There's discussion of that typo on Groklaw. The judge will probably issue a correction. It's not a big deal.

Re:Key extracts from the Judge's order (5, Informative)

swillden (191260) | more than 8 years ago | (#15625662)

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 (3, Interesting)

schon (31600) | more than 8 years ago | (#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. (3, Informative)

Jaywalk (94910) | more than 8 years ago | (#15625830)

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.

Slashdot (1)

Venim (846130) | more than 8 years ago | (#15625417)

The GeoCities web site you were trying to view has temporarily exceeded its data transfer limit. Please try again later.

Truth nuggets (3, Informative)

jonathan_95060 (69789) | more than 8 years ago | (#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.

Red Hat and Novell Cases? (2, Interesting)

ZachPruckowski (918562) | more than 8 years ago | (#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?

Fallout of Linux licenses? (1)

Nimey (114278) | more than 8 years ago | (#15625644)

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.

SCO vs. IBM, in IRC format (4, Funny)

SIGBUS (8236) | more than 8 years ago | (#15625679)

* 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

Who? (1)

davmoo (63521) | more than 8 years ago | (#15625710)

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...
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