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Portions of SCO's Expert Reports Stricken

CowboyNeal posted more than 7 years ago | from the gonna-have-to-do-better-than-that dept.

Caldera 170

rm69990 writes "A day after Judge Dale Kimball reaffirmed Judge Wells' order tossing most of SCO's case, Judge Wells has stricken large portions of SCO's expert reports, stating that SCO was trying to do an end-run around IBM. As IBM put it in its motion papers, SCO will not be allowed to 'litigate by ambush.' This motion was regarding SCO's expert reports, where SCO attempted to insert new evidence after discovery had ended via their expert reports. Wells' ruled directly from the bench, and finished by telling SCO to 'take it up with Judge Kimball' if they had a problem. This really hasn't been a good week for SCO."

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170 comments

This has been going on for years (0)

Adult film producer (866485) | more than 7 years ago | (#17063428)

When is the trial starting ? I'm assuming there will be one, some sort of proceedings involving a judge, plantiffs and defendents and arguments are made to decide whether IBM is guilty of *whatever crime this case is about*...

Re:This has been going on for years (-1)

Anonymous Coward | more than 7 years ago | (#17063438)

it's not a criminal case you stupid shitheel

Re:This has been going on for years (1)

hcob$ (766699) | more than 7 years ago | (#17063782)

Doesn't have to be a criminal trial to have those. You can have a jury trial for a speeding ticket if you want. You just have to ask.

Re:This has been going on for years (3, Informative)

Crasoum (618885) | more than 7 years ago | (#17063908)

A speeding ticket is an infraction of the law (albiet a minor one). As it is, it is indeed a criminal trial. However, you are correct that you can have a jury in both a criminal and civil court.

Re:This has been going on for years (1)

init100 (915886) | more than 7 years ago | (#17063920)

But it has to be a criminal case for IBM to be guilty of a crime, doesn't it?

Re:This has been going on for years (1)

diersing (679767) | more than 7 years ago | (#17064348)

Criminal Law is just one branch of many (contract, tort, property, etc) one can be found guilty of, criminal cases are punishable by jail time and since you can't send a company to jail...

Re:This has been going on for years (0)

Anonymous Coward | more than 7 years ago | (#17065294)

In Charleston a jury trial can be requested for parking tickets.

Re:This has been going on for years (1)

naich (781425) | more than 7 years ago | (#17063494)

There won't be any trial - that wasn't what this case was about. This litigation was purely a mud-slinging exercise and SCO will run out of money and go bust before it gets anywhere near trial.

Re:This has been going on for years (1)

eric76 (679787) | more than 7 years ago | (#17063512)

Even if SCO drops everything, there is no reason for IBM to drop their counterclaims.

Re:This has been going on for years (3, Interesting)

diersing (679767) | more than 7 years ago | (#17064380)

Especially when SCO goes bust and can't defend against the counterclaims, and a in a twist of fate SCO and all IP is awarded to IBM bring the whole thing full circle.

Re:This has been going on for years (1)

junklight (183583) | more than 7 years ago | (#17064416)

While I don't disagree with you - this is *very* risky for Darl and co personally. If IBM or others can show that this whole law suit was just a troll then they are in deep shit (see below about the Lanham act). I wonder what they got out of this personally? it must be good to take such a risk.

Re:This has been going on for years (5, Informative)

Scarblac (122480) | more than 7 years ago | (#17063518)

Well, they've just about decided what evidence there is; now they're going to decide which issues can be decided immediately (because there's no disputes on factual matters on them), and which issues need to go to court. That's for the next few months. It's likely that all of SCO's claims will be thrown out before then, but there will be IBM counter claims that probably will go to trial.

However, there's also a case Novell-SCO, and since in it Novell claims that it still holds the copyright over some things (like, say, SysV Unix) that SCO claims copyright of in the IBM case, that case will go first.

That trial is at the moment expected to start about September 2007-ish.

Re:This has been going on for years (5, Insightful)

Eivind (15695) | more than 7 years ago | (#17063656)

It's worse than that, actually.

You're rigth, SCO is *still* after several years trying to add more evidence and more claims. By having expert-testimony (which is supposed to *explain* the claims and the evidence) contain claims that aren't there in the final disposition.

So, ok, SCO still, after being ordered repeatedly to put all the evidence on the table for literally *years* don't have all the evidence they claim to posess on the table.

But worse: They also *still* don't want to commit to exactly what it is that they are even *claiming* that IBM did.

In effect, several years after the trial started, SCO is still at: "You did something wrong, but we refuse to state in specific terms *what* you did wrong, we also refuse to provide any evidence that you *did* infact do the things we claim."

It's impossible to defend oneself if one doesn't even know precisely what the accusations are. "Structure and organization" ain't specific. No more than "breaking some law" would be.

It's beyond ridicolous. They've been given enough rope at this point. It's nice to see the judges are starting to tigthen up -- this particular attempt at redefinind the claims was turned down flat.

Re:This has been going on for years (0)

Anonymous Coward | more than 7 years ago | (#17063762)

It's impossible to defend oneself if one doesn't even know precisely what the accusations are.

Except at Guantanamo Bay

Re:This has been going on for years (1)

dlc3007 (570880) | more than 7 years ago | (#17063988)

>>It's impossible to defend oneself if one doesn't even know precisely what the accusations are.
>Except at Guantanamo Bay

No, it is exactly the same there.

Re:This has been going on for years (5, Informative)

bstone (145356) | more than 7 years ago | (#17065066)

So far, SCO has shown 326 lines of code after over three years of discovery, and those are questionable at best (coming from standards that SCO participated in writing like ELF, or coming from IBM home-grown code like JFS). In June, the judge gave one of my favorite quotes from the case.

SCO's arguments are akin to SCO telling IBM sorry we are not going to tell you what you did wrong because you already know. SCO received substantial code from IBM pursuant to the court's orders as mentioned supra. Further, SCO brought this action against IBM and under the Federal Rules, and the court's orders, SCO was required to disclose in detail what it feels IBM misappropriated. Given the amount of code that SCO has received in discovery the court finds it inexcusable that SCO is in essence still not placing all the details on the table.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 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."

Now, after discovery is over, when they were told that ALL of their claims had to be stated by the end of discovery, SCO claims in their expert reports that virtually the whole of Linux is at issue. Since discovery is over, that would mean that IBM could not gather any new evidence to refute the claims. This is NOT how the system works. Normally, you state your claims, both sides have a chance through discovery to determine the evidence, that evidence is presented, experts review the evidence and report on it, then you go to trial.

In this case, SCO claimed they didn't KNOW what their claims were and they wouldn't know until after discovery. That in itself seems to put IBM at a disadvantage. At the end of discovery, they had 326 lines and some nebulous claims with no evidence (which were thrown out in the ruling in June). Now, in the "expert reports" which are supposed to examine the evidence on the table, SCO adds a raft of claims for which they still present no evidence.

Given that over three years ago, they claimed to have a suitcase stuffed with "millions of lines" of "stolen" code, it's rather surprising that they didn't present it as part of their case, even after repeated admonishments from the judges to show some evidence. You'd almost think they didn't actually have a case.

Re:This has been going on for years (3, Funny)

Anonymous Coward | more than 7 years ago | (#17063532)

The trial or the posting of dupes on Slashdot?

Darl isn't looking so good these days. (4, Funny)

baryon351 (626717) | more than 7 years ago | (#17063578)

Darl is looking pretty rough these days [uita.org] . I wonder what could be weighing him down so much.

His conscience, maybe?

Re:Darl isn't looking so good these days. (1)

Fred_A (10934) | more than 7 years ago | (#17063598)

Maybe he's practising for his new life as a fugitive ? Trying new looks ? Hair cuts, beards...

Re:Darl isn't looking so good these days. (1)

timmarhy (659436) | more than 7 years ago | (#17063830)

"His conscience, maybe?" - don't make me laugh

Re:Darl isn't looking so good these days. (1)

walt-sjc (145127) | more than 7 years ago | (#17064310)

Well, he sure has the stereotypical thugish scowl and looks. If he was on a movie set, he definately would be playing the part of a villin.

Re:This has been going on for years (0)

Anonymous Coward | more than 7 years ago | (#17063776)

1. It's a civil trial, not a criminal trial, that is it's SCO vs IBM,
      not U.S. vs IBM or some-state vs. IBM.
2. It will probably never go to trial. SCO's goal is to get IBM to settle.
      IBM's goal is probably either to get SCO to drop, get the judge to drop,
      or failing that to settle for as little as possible while retaining the
      right to continue to do business as usual.

Re:This has been going on for years (5, Insightful)

Airline_Sickness_Bag (111686) | more than 7 years ago | (#17063822)

2. It will probably never go to trial. SCO's goal is to get IBM to settle.
            IBM's goal is probably either to get SCO to drop, get the judge to drop,
            or failing that to settle for as little as possible while retaining the
            right to continue to do business as usual.


IBM doesn't want to settle - they want to leave a smoking crator to be an example for the next idiot that tries to scam them.

Re:This has been going on for years (1)

Dunkirk (238653) | more than 7 years ago | (#17064070)

The sick part of this is that SCO's management will probably laugh all the way to Barbados after this is done anyway. I know that IBM has some counterclaims based on some Lanham Act or something, which probably has to do with what most of here on Slashdot feel was criminal intent to use the courts to do things that the courts were never meant to do, but I doubt they'll really bring anyone to personal accountability for such things, much as we would like them to.

It's like I keep telling people: it's stupid easy to make a lot of money if you have no morals or conscience.

Re:This has been going on for years (2, Informative)

timmarhy (659436) | more than 7 years ago | (#17064384)

i believe there's a quote from IBM managment "the skies over utah will be black with lawyers before this is over"

Re:This has been going on for years (1)

swrona (594974) | more than 7 years ago | (#17064522)

Can IBM declare war on Utah?

Re:This has been going on for years (2, Funny)

hey! (33014) | more than 7 years ago | (#17064732)


i believe there's a quote from IBM managment "the skies over utah will be black with lawyers before this is over"


** cackle ** Fly my pretties!

Re:This has been going on for years (0)

Anonymous Coward | more than 7 years ago | (#17065194)

IBM doesn't want to settle - they want to leave a smoking crator to be an example for the next idiot that tries to scam themIBM doesn't want to settle - they want to leave a smoking crator to be an example for the next idiot that tries to scam them
Personally I think that once the crater has been formed and is properly smoking, we all put the fire out ... boy scout style.

It's IBM's policy not to settle (4, Insightful)

Moraelin (679338) | more than 7 years ago | (#17064422)

It's been IBM's policy for _decades_ to never create a "we give in to extortion" precedent. Because the instance they pay off one leech with a dodgy claim (either settling, or by buying the company, i.e., giving someone good money for their worthless shares), they've just painted a huge bullseye on themselves. That would be the day when a thousand other leeches sue IBM to get some money too.

IBM is a big rich target, and there are entirely too many people whose sole business plan is frivolous litigation. And anyone with lots of money is a natural target. It's like putting a sign on your porch saying "I have a big pile of gold in my basement". Someone will take it as a personal challenge to take it from you. And if you give in to the first guy who comes over and says "I'll sue you if you don't give me some of that gold", tomorrow you'll find a big queue of people at your door who want some too. It's not a precedent you want to set.

So settling frivolous claims is _not_ what IBM wants, and it's never been what it wanted. What it wants is the equivalent of a bunch of skulls on spikes, with a sign saying "these are the last guys who tried to extort us."

And I have to wonder what have Darl and the gang been thinking. It's been common knowledge for ages, complete with such mental images like "IBM's lawyers are like the Nazgul" or "IBM can darken the sky with its lawyers". So I can't really imagine someone genuinely thinking, "I know! surely one more try is all it takes! They'll certainly do the stupid thing _this_ time!"

Even assuming that Darl were actually _that_ stupid and disconnected from reality, you have to wonder about everyone else involved. Like the investors that funded this stupid charge of the light brigade. What were _those_ thinking?

Cue conspiracy theories about MS paying off Darl to create FUD even if SCO loses the lawsuit.

Then again, maybe Hanlon's Razor does apply, after all: Never attribute to malice, that which is adequately explained by stupidity.

Re:It's IBM's policy not to settle (1)

jfinke (68409) | more than 7 years ago | (#17064698)

The other weird thing was wasn't SCO's lead lawyer an ex-IBM lawyer himself?

Maybe it became a bit personal for him which is why he took the case in the first place. Trying to prove something possibly??

Re:It's IBM's policy not to settle (3, Funny)

binkzz (779594) | more than 7 years ago | (#17065112)

Lawyers work for money, not companies.

I doubt McBride really cared if he won or lost... (1)

Penguinisto (415985) | more than 7 years ago | (#17065550)

...his big worry is to avoid having the SEC discover his little pump+dump scheme.

I'm pretty sure he knew SCO was going toes-up in 2003, and didn't like what he saw. OTOH, making a monster and --to any stock investor with lots of money and tech-ignorance combined-- adventure against a big fat (and rich!) company would surely boost the stocks high enough to dump a few (but not enough to arouse suspicion!) and retire off the results.

As it is, McBride and most of his board are now a multi-millionaires because of that, where before he really didn't have near as much cash.

Damage aside, it's a pretty solidly-run con IMHO. So what if IBM/Novell/etc wins? The company chokes, but Darl still gets to keep his own dough, and come out of it a whole LOT wealthier than he would have otherwise.

/P

Re:This has been going on for years (1)

myc_lykaon (645662) | more than 7 years ago | (#17064642)

SCO vs IBM


The new Jarndyce vs. Jarndyce. The similarity is remarkable.

Total hypo, but what if you were SCO? (0, Troll)

BadAnalogyGuy (945258) | more than 7 years ago | (#17063458)

What if you were being taken advantage of by a large company and all you had at your disposal was the courts to protect yourself with. Then, when the trial began the company kept hemming and hawing and you wound up at the end of the discovery phase with nothing but your own claims. Then after the discovery phase ends, the company dumps a ton of documents on you, too much to go through in a reasonable amount of time and the judge isn't willing to give you the time to go through it.

I'm not saying that SCO's a lamb. Far from it. They have been involved in some of the worst corporate malfeasance that I've heard of in a long time (well, since Enron, I guess). They can go DIAF, as far as I'm concerned.

But I don't like the idea that the wheels of justice need to roll so fast that any and all evidence may be thrown out because it doesn't meet some arbitrary deadline.

Re:Total hypo, but what if you were SCO? (0)

Anonymous Coward | more than 7 years ago | (#17063528)

oh come on, arbitrary deadline? This completely ridiculous process has been going for years. How long should you be able to draw this one out? I admire the USA for many things, but in every mentally sane judicial system these SCO lawsuits have been exterminated before even starting.

Re:Total hypo, but what if you were SCO? (3, Insightful)

linuxgurugamer (917289) | more than 7 years ago | (#17063538)

What arbitrary deadline? SCO has had YEARS to provide all the evidence they wanted to. They deliberitely waited until after discovery had ended before providing the so-called "expert evidence". The courts have bent over backwards trying to accomodate SCO, and all that happened was that SCO tried to take advantage of the court. There are rules that everyone has to follow. SCO didn't follow those rules.

Re:Total hypo, but what if you were SCO? (2, Insightful)

Kjella (173770) | more than 7 years ago | (#17063540)

They've had plenty of time. They've gone out publicly and said all this evidence was clear. They asked for a kazillion documents from IBM, which is a fishing expedition and not a directed discovery. The only reason SCO hasn't brought their case to trial is that they have no case to bring to trial. They've had every opportunity to present their evidence, and the discovery phase is there for good reason so you can't keep pulling rabbits out of the hat during trial.

Re:Total hypo, but what if you were SCO? (3, Insightful)

Scarblac (122480) | more than 7 years ago | (#17063542)

Still, that deadline was about three and a half years into the case, it's not exactly been fast. And they're the plaintiffs, not the defendants - aren't they supposed to know what their actual claims are _before_ sueing somebody?

Eventually there has to be a deadline. SCO decides to sneak in some extra, really vague claims after that in hopes that IBM didn't have time to organize a proper defence, but well, they've had far too many deadline extensions already. Final means final.

Re:Total hypo, but what if you were SCO? (2, Insightful)

harrythefish (1028136) | more than 7 years ago | (#17063550)

Yeah. Poor SCO. If only they had been given more time by the judge. Society will feel a great loss at their departure. All that's needed next is to throw out the bonkers patenting system for IP and maybe talented and hardworking software writers can work in whatever way suits them and be rewarded appropriately.

Re:Total hypo, but what if you were SCO? (0)

Anonymous Coward | more than 7 years ago | (#17063570)

but what if you were SCO?

Then I should be thrown in jail for deliberately abusing the court system, for suing someone without any hint of evidence whatsoever, less than even a bribed police officer would consider "reasonable suspicion".

What if you were being taken advantage of by a large company and all you had at your disposal was the courts to protect yourself with.

What does this have to do with this case? SCO is not a large company compared to IBM. Your question doesn't even have anything to do with the question you put in the subject.

Re:Total hypo, but what if you were SCO? (3, Insightful)

Detritus (11846) | more than 7 years ago | (#17063580)

The wheels of justice make the NASA crawler-transporter look like a hot rod. Judges are supposed to set and enforce deadlines. Justice delayed is justice denied.

Re:Total hypo, but what if you were SCO? (3, Insightful)

MathFox (686808) | more than 7 years ago | (#17063594)

SCO was repeatedly asked by IBM to specify what IBM did wrong, has been ordered to specify what IBM did wrong by a judge and tried to wiggle around this obligation for three years. SCO got quite some information from IBM over the years. Now the deadline has passed, SCO tries to slip in some new accusations. The judge says "No, you can't do that" on request of IBM. It would be unfair to defend against last-minute accusations without having an opportunity to collect the data you need to defend yourself.

Re:Total hypo, but what if you were SCO? (4, Insightful)

hey! (33014) | more than 7 years ago | (#17064940)

It isn't just the difficulty of responding to last minute accusations that makes trying to sneak new ones in unfair; after all the legal system doesn't generally balk at stretching things out if it thinks it will get a better result.

The fairness problem is that if the plaintiff can add new claims at anytime he pleases, he can move the goal posts at will whenver the defendant gets close to them, at little cost to himself and great cost to the defendant. Successful defense would become impossible; either you'd lose outright, or be forced to settle on terms favorable to the plaintiff.

Re:Total hypo, but what if you were SCO? (3, Insightful)

kfg (145172) | more than 7 years ago | (#17063606)

But I don't like the idea that the wheels of justice need to roll so fast that any and all evidence may be thrown out because it doesn't meet some arbitrary deadline.

That wasn't an analogy. That was an argument.

You haven't been paying attention. SCO has spent the past few years jiggering the deadlines and what they file when with regards to them. They aren't the victim here; here too they are the villian and both IBM and the judge are just getting plenty sick and tired of their overt; and abusive, legal gaming.

KFG

Re:Total hypo, but what if you were SCO? (1)

Billosaur (927319) | more than 7 years ago | (#17064340)

You haven't been paying attention. SCO has spent the past few years jiggering the deadlines and what they file when with regards to them. They aren't the victim here; here too they are the villian and both IBM and the judge are just getting plenty sick and tired of their overt; and abusive, legal gaming.

But the legal process requires that all evidence be "discovered" and then considered in due course. SCO has been trying to get around that with such tactics. Frankly, the judges have handed SCO plenty of rope, but they are playing cat's cradle with it instead of just hanging themselves. Ultimately they will be hoist upon their own petard, it's just a question of when. The one thing they've overlooked is that they are taking on companies with deep pockets, and eventually that will prove the most telling blow, as SCO can't possibly keep the litigation up for much longer.

Re:Total hypo, but what if you were SCO? (3, Interesting)

KokorHekkus (986906) | more than 7 years ago | (#17063618)

Well if the large hypotetical company gave full access to their source code control system for the alledged infringing products and then the judge said, after you'd had access for about 2 years, "Is this all you got?" I would cut my losses and bow out.

And this was actually what happend (except the bowing out part). SCOs lawyers have full access to IBMs CMVC (their version control system) and in a hearing Judge Wells asks SCOX lawyer "Does SCO have, can they provide, additional specificity?... I mean, basically, is this all you've got?" (source: http://www.groklaw.net/articlebasic.php?story=2006 0414162430240 [groklaw.net] )

And, oh, I wouldn't go around saying "We will bring this much of that type of evidence into court before I actually did it. That will land you big fat Lanham accusations you know.

Re:Total hypo, but what if you were SCO? (1)

KokorHekkus (986906) | more than 7 years ago | (#17063644)

Last sentence should have been:
And, oh, I wouldn't go around saying "We will bring this much of that type of evidence into court" without doing it later. That will land you big fat Lanham accusations you know.
Bad editing on my part. Sorry.

Re:Total hypo, but what if you were SCO? (1)

Secrity (742221) | more than 7 years ago | (#17064880)

It's too late for SCO to cut their losses and bow out. IBM has counterclaims that they won't drop and probably won't even settle. I don't remember the details, but I believe that SCO could have criminal liability if they drop the case now. I believe that IBM could ask the court to require that SCO pay their legal expenses, which would severely cripple SCO, and possibly wipe them out.

Re:Total hypo, but what if you were SCO? (1)

c1ay (703047) | more than 7 years ago | (#17063620)

But I don't like the idea that the wheels of justice need to roll so fast that any and all evidence may be thrown out because it doesn't meet some arbitrary deadline.

That's not the issue or the reason for this ruling. SCO claimed publicly, over and over again, that they had overwhelming evidence, "a mountain of code" as Darl called it, and they were told to show their evidence and never have. They even had a press conference to show a sample of the infringing code to reporters yet never presented even this sample to IBM as proof of their claim much less a mountain of code. Failing to back up their claims is what this ruling is about, not arbitrary deadlines...

Re:Total hypo, but what if you were SCO? (4, Informative)

UnknowingFool (672806) | more than 7 years ago | (#17063686)

What if you were being taken advantage of by a large company and all you had at your disposal was the courts to protect yourself with.

Are you being serious? SCO initiated this lawsuit and several other lawsuits. From the beginning, IBM (and others) have tried to work with SCO to avoid a suit. Lawsuits are expensive and most companies try to avoid them as much as possible. SCO has refused. In this case, IBM has asked from the beginning the details of SCO's grievances against them. SCO has been as evasive as they possibly can be. But there is a limit to this and the judges have called them on it

Then, when the trial began the company kept hemming and hawing and you wound up at the end of the discovery phase with nothing but your own claims. Then after the discovery phase ends, the company dumps a ton of documents on you, too much to go through in a reasonable amount of time and the judge isn't willing to give you the time to go through it.

From the beginning SCO has stated it had a mountain of evidence. But they wanted everything IBM had. When it came time for them to produce what IBM wanted, they has refused to produce any of it until after three orders. When it did produce it, it was inadequate as IBM warned them. Then they go to the judge trying to explain their vagueness. The judge didn't buy it.

But I don't like the idea that the wheels of justice need to roll so fast that any and all evidence may be thrown out because it doesn't meet some arbitrary deadline.

Three years is quite a long time for discovery. SCO asked and received extensions to the original deadline. Plus discovery is not then time when you should start your case. Discovery should be used to cement your case. SCO was hoping to find any hint of wrong doing basically because it had nothing in the beginning. If you go up against IBM, you better be prepared with evidence before you file a lawsuit.

Re:Total hypo, but what if you were SCO? (1)

sgtrock (191182) | more than 7 years ago | (#17064872)

Then, when the trial began the company kept hemming and hawing and you wound up at the end of the discovery phase with nothing but your own claims. Then after the discovery phase ends, the company dumps a ton of documents on you, too much to go through in a reasonable amount of time and the judge isn't willing to give you the time to go through it.


From the beginning SCO has stated it had a mountain of evidence. But they wanted everything IBM had. When it came time for them to produce what IBM wanted, they has refused to produce any of it until after three orders. When it did produce it, it was inadequate as IBM warned them. Then they go to the judge trying to explain their vagueness. The judge didn't buy it.


It's even better (or worse, if you're an SCO fan) than that. SCO demanded, and received, IBM's /entire/ code repository for AIX, Dynix, and Linux going back nearly 10 years and /still/ couldn't make a case! SCO had the mountain of documents that they wanted from IBM for at least 2 1/2 years and still couldn't find any way to make specific charges against IBM.

Mind you, IBM objected to supplying the repository because it meant an incredible amount of work to dig up the old code on their part. They were also required to supply SCO with direct access to their current repository. Nope, SCO got exactly what they asked for; enough rope to hang themselves. :)

Re:Total hypo, but what if you were SCO? (2, Informative)

rbanffy (584143) | more than 7 years ago | (#17063928)

All they had to do was to find in the Linux kernel source-tree fragments of code that were equal or very similar to the ones present in Unix. Just in case, try to find them in the GNU tools.

IIRC they could also have requested the Dynix and AIX sources and source history.

If you have the suspicion someone wronged you, you can usually point to what they did, how and when.

The fact that they couldn't do it in a couple years is proof enough they have no case at all. The fact that they repeatedly stated they had such evidence while they knew they had nothing is libel. Since it is reasonable to assume they did it with the purpose of manipulating the market is far worse.

Re:Total hypo, but what if you were SCO? (0)

Anonymous Coward | more than 7 years ago | (#17064644)

(posting anonymous coward for reasons that should be patently obvious)

The Linux MACE ethernet driver (used on the SGI O2) is substantially the same as that in IRIX. Right down to the logic flow and variable names, especially in the PHY probe code. There's even a comment about loading in PHY errata; that reference appears only in the IRIX source code.

There's UNIX code in the linux kernel; SCO is looking at the wrong company and in the wrong place.

Re:Total hypo, but what if you were SCO? (3, Interesting)

swillden (191260) | more than 7 years ago | (#17064838)

(posting anonymous coward for reasons that should be patently obvious)

Hi, Darl.

The Linux MACE ethernet driver (used on the SGI O2) is substantially the same as that in IRIX. Right down to the logic flow and variable names, especially in the PHY probe code. There's even a comment about loading in PHY errata; that reference appears only in the IRIX source code.

And your point is?

Are you trying to claim that AT&T wrote the IRIX driver and gave it to SGI under the Unix contracts? Or that SGI's implementation of that driver is somehow a derivative work of some other driver from AT&T?

There's UNIX code in the linux kernel; SCO is looking at the wrong company and in the wrong place.

Of course there's Unix code in the Linux kernel. But is there any that shouldn't be there? SCO hasn't been able to find any. Keep in mind that all of the BSD code is fair game, as is any original code written for Unix by companies other than AT&T and placed in Linux by the copyright holder.

Yes, SCO has this bizarre theory that any code that once rubbed against AT&T code belongs to them (or at least should be under their control), but not even SCO believes that's going to hold up.

Re:Total hypo, but what if you were SCO? (4, Insightful)

Scarblac (122480) | more than 7 years ago | (#17064942)

If that's true, it would have been of some use to SCO if:
  • SCO actually held any UNIX copyrights
  • SCO could show that that Linux code was in fact copied from IRIX, instead of having some common source
  • The fact that SCO would hold some Unix copyrights would mean that they also had control over any additions by IRIX
  • The open source community hadn't asked SCO for specificality right away, so they could have removed any infringing code
  • SCO hadn't been distributing Linux itself, under the GPL, for years even after starting this law suit
  • They had sued Irix instead of IBM
  • They hadn't given indemnification contracts for this sort of thing years before
  • Et cetera, et cetera, et cetera

Re:Total hypo, but what if you were SCO? (0)

Anonymous Coward | more than 7 years ago | (#17065472)

Thank you. That was exactly my point.

My best guess is that someone in Cray or SGI told them that "UNIX code" had made its way into Linux via IRIX (specifically through a device driver), but the informant was intentionally vague as to the exact location.

SCO screwed up, badly. They pointed to the wrong snippets of code, to their detriment, and then gave up on SGI and went after IBM.

I can't speak to their assertion that they hold the copyright to UNIX. All of these data points are meaningless if they don't own UNIX, as you stated in your post. I'm just saying that they would have presented a somewhat more competent case if they had done a better job of code comparison.

I would stab myself in the face. (1, Funny)

DaveCar (189300) | more than 7 years ago | (#17064392)

Total hypo, but what if you were SCO?

If I were SCO I would hypothetically stab myself in the face.

The I would stab Darl McBride in the face, then I would stab my lawyer, Lionel Hutz or whatever he is called, in the face.

The I would take my pitiful penny-stocks and wail and gnash and think about the old days when I used to make products instead of just making people sick.

Caldera (2, Funny)

alexj33 (968322) | more than 7 years ago | (#17064604)

Perhaps Disney can now sue SCO because the Caldera symbol looks like a Mickey Mouse ear? (I'll admit that I could never see the "C" in their symbol until a few weeks ago)

What the hell does that have to do with SCOX? (1)

schon (31600) | more than 7 years ago | (#17064574)

what if you were SCO?
What if you were being taken advantage of by a large company and all you had at your disposal was the courts to protect yourself with.
Umm, I think you meant:

"What if you had destroyed your business through your own incompetance, and decided to try extort money from a company who had done nothing wrong?"

Re:What the hell does that have to do with SCOX? (1)

hey! (33014) | more than 7 years ago | (#17064984)


"What if you had destroyed your business through your own incompetance, and decided to try extort money from a company who had done nothing wrong?"


I think the current management bought SCO after it had been destroyed. Some incompetence was involved in the destruction, but it was inevitable since the core product -- proprietary Unix -- is a market dinosaur. What we have is pure opportunistic exploitation of the legal system to bilk money from investors.

Just a theory (5, Interesting)

Fecal Troll Matter (445929) | more than 7 years ago | (#17063516)

This is actually a very well known theory of copyright. An example: One cannot copyright factual data, but if one takes the factual data and arranges them in a novel enough way as to satisfy the "originality" requirement of copyright law, then that "author" can have a copyright over the selection and arrangement of the factual data. The data itself is not protected(anyone can put the same data in his own work), but that particular selection and way of arranging it is protected.

The copyright will normally be a "thin" copyright, meaning that for someone to be infringing he or she must have produced something nearly identical to whatever is protected. The data does not have to be factual data. A compilation of classical music now in the public domain is an example of something that might also be protected. This avenue is often used to try to protect computer databases where one entity has gone through a lot of trouble to collect a bunch of data and arrange it in a computer database, and someone else comes along and just copies it all.

Courts have held that things like the white pages (and in many cases the yellow pages) do not have sufficient originality to qualify for a compilation copyright.

In my opinion compilation and similar "data arrangement" copyrights are not a very good way to protect data (one reason is that you're attempting to protect "sweat of the brow" work through copyright, which is an idea that was rejected long ago).I feel that works of this type are better protected through tort law under the "unfair business practices" doctrine.

Re:Just a theory (1)

oliverthered (187439) | more than 7 years ago | (#17063834)

Copyright doesn't protect you if it's one of the simplest way of aranging the data.

e.g. If I put up a alphabetically sorted list of names in a phone book I won't be protected by copyright if someone else does the same.

You will if ... (2, Interesting)

brokeninside (34168) | more than 7 years ago | (#17065062)

.... the format of the presenation and the selection of the data requires creativity. Note that this criteria has nothing to do with simplicity. A simple alphabetical list of names could very well be copyrighted if the presentation is unique and creativity was exercised in the selection of names that appear on the list. What can't be copyrighted are the facts, the names and phone numbers themselves.

For a very nice overview see Pamela Samuelson's Copyright law and electronic compilations of data [ifla.org]

Re:You will if ... (1)

oliverthered (187439) | more than 7 years ago | (#17065130)

That's not a simple list of names it's a specific selection of names. So long as you didn't pick names with say the same hair colour and they were truley creative you could copyright the list.

Re:Just a theory (0)

Anonymous Coward | more than 7 years ago | (#17064386)

So for example: massive lists of biographical data in the form of

book | author | year | isbn

can not be copyrighted, ever?

But SCOG never presented evidence for that theory (1)

brokeninside (34168) | more than 7 years ago | (#17064782)

SCOG could have very easily put up loads of evidence for that argument. All they had to do was list for data structure N where Unix code defines that structure, then where AIX and Dynix define that structure and then where Linux defines that structure. Repeat for data structure N + 1 until all protected data structures are listed. Then repeat the process for methods. Then repeat the process for concepts. Done deal.

But SCO did not do this. I suspect that they did not do this because either they don't actually have any data structures, concepts or methods that can be argued to be protected. But it could also be the case that when they do that they show that the structures as defined in AIX (or Dynix) and Linux are so different from what is in Unix that they aren't really the same thing.

The bottom line is that this argument does not removed the need for specificity when making a claim for copyright infringement. Regardless of whether it is the structure that is copyrighted or the contents of that structure, the person making the claim still has to identify exactly what it was that was infringed. That is the core of SCOG's problem. They've never identified to the court excactly what their claims are about.

Re:Just a theory (2, Interesting)

Rogerborg (306625) | more than 7 years ago | (#17064928)

You are TennSeven [groklaw.net] - or are ripping him off - and I claim my $5.

mod do3n (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#17063596)

fucking surprise, to place a paper been many, not the GAY NIGGERS FROM my resignation unless you can work the rain..we can be Available to 4osts. Due to the working on various end, we need you erosion of user IT RACIST FOR A baby...don't fear Parts. The current Lite is straining been many, not the lubrication. You a dead man walking. It will be among roots and gets on and shouting that [anti-slash.org] thing for the you are a sc8eaming Is the worst off balance is struck, fueling internal Like I should be the NetBSD project, community at ballots. You could clean for the next are a few good numbers. The loss Volatile world of tossers, went out

Poor SCO (2, Funny)

Anonymous Coward | more than 7 years ago | (#17063626)

This really hasn't been a good week for SCO

Poor SCO, lets see if I can squeeze out a tear of sympathy.

NNNNNHHHH!

Nope.

Even Microsoft dropped SCO (3, Funny)

Tuqui (96668) | more than 7 years ago | (#17063684)

SCO case is over, even M$ put their money with Novell now.
They already abandoned SCO.

Re:Even Microsoft dropped SCO (5, Insightful)

couchslug (175151) | more than 7 years ago | (#17063996)

SCO will continue to serve its purpose for a while.
When a land mine explodes, you don't consider the mine a failure because it was destroyed in the process. :)

Re:Even Microsoft dropped SCO (3, Interesting)

Dan Ost (415913) | more than 7 years ago | (#17064530)

I don't see how SCO can be considered a success in the long-term.

Sure, it's possible that some people were scared away from Linux because of
SCO's posturing, but the increased scrutiny has vetted the Linux source,
improved the development process, educated the community about the pitfalls
of how concepts of intellectual property are applied to software, and
organized the community in beneficial ways that will outlive the SCO lawsuit.

I think that in 20 years we'll look back and see that the whole "SCO incident"
was a catalyst for a lot of good things.

Re:Even Microsoft dropped SCO (1)

mike2R (721965) | more than 7 years ago | (#17064906)

When a land mine explodes, you don't consider the mine a failure because it was destroyed in the process. :)
Depends who's tank is driving over it at the time..

SCO certainly exploded sucessfuly, but I don't think you can say they damaged their intended target very much.

Microsoft dropped SCO a long time ago.... (1)

Frosty Piss (770223) | more than 7 years ago | (#17065212)

SCO may be a Microsoft stooge, but they where never their baby. Microsoft gave them some cash and said "go for it", and moved on. I don't think they where stupid enough to think that SCO had much of a chance, the best they could have hoped for was a short term FUD gain. IBM probably fought a little harder than they expected. With Novell, it's totally different. The Novel "situation" is a peek at where Microsoft wants to go with Linux, an IP war. In today's IP law and court system, they have a good chance of gaining ground. This will get very ugly.

UnixWare and OpenServer: the real victims here. (1, Interesting)

Anonymous Coward | more than 7 years ago | (#17063738)

We often hear about how Linux has been victimized by these legal actions, but in the end the real victims will be SCO UnixWare and SCO OpenServer.

I know most people here probably haven't used such systems themselves, or at least not done so knowingly. The beliefs the morals of SCO aside, they're actually some fairly decent systems. They really harken back to the days of true UNIX, where simplicity was key and efficiency paramount.

It would be excellent if whoever controls the UnixWare and/or OpenServer codebases after these legal proceedings were to release it under an open source license. I personally think that a BSD or MIT-style license would be most appropriate. With some effort from the community, both systems could be brought up to a modern level. Considering how much of their use was on x86 systems a small fraction as powerful as what we use today, they really tend to fly on new systems.

Re:UnixWare and OpenServer: the real victims here. (4, Insightful)

kg4czo (516374) | more than 7 years ago | (#17063976)

Actually, I've had the displeasure of working with Unixware for the last 6 years now. It is a heaping pile of horse dung.

We recently moved our main transaction processing server to Suse Linux from Unixware. (yeah, I know, evil deal with M$ doesn't mean anything in this company) The difference is astounding! They actually found bottlenecks that were undetectable before, due to the inefficiency of Unixware, and many of the memory leaks vanished. As well, the same hardware that would have have only lasted maybe 6 month to a year under Unixware, will now serve us for a few more years yet.

I'd say that Unixware needs to be burned, pissed on, and burned again, then pissed on again for the piece of shit that it really is. You'd be hard pressed to convince me that Linux, in anyway, would be benefited by copying code from any SCO product.

I'll gladly donate ... (0)

Anonymous Coward | more than 7 years ago | (#17064200)

...my piss to this noble cause. Hear hear !

Re:UnixWare and OpenServer: the real victims here. (0)

Anonymous Coward | more than 7 years ago | (#17064252)

I'd say that Unixware needs to be burned, pissed on, and burned again, then pissed on again for the piece of shit that it really is.

You forgot the bit about burying the ashes in an unmarked grave at a crossroads after midnight. Otherwise the ashes just reconstitute and you get *zombie* Unixware (just as bad as Unixware plus a taste for 'delicious braaaaains').

Re:UnixWare and OpenServer: the real victims here. (1)

Bozdune (68800) | more than 7 years ago | (#17064884)

Now THAT's funny!

"This really hasn't been a good week for SCO." (4, Funny)

ettlz (639203) | more than 7 years ago | (#17063744)

Well that pretty much defines "good week for the rest of us".

Microsoft's deal with Novell (1)

javilon (99157) | more than 7 years ago | (#17063746)

Now it is quite clear. Microsoft's deal with Novell is an attempt to keep the FUD going after SCO's case implodes. They must have very good legal counseling so they new what was coming.

Re:Microsoft's deal with Novell (1)

couchslug (175151) | more than 7 years ago | (#17063844)

Given the impressive mileage they got from SCO, "SCOvell" is a logical successor.

Re:Microsoft's deal with Novell (1)

Xuranova (160813) | more than 7 years ago | (#17064356)

It took this of all things for you to realize MS has good legal counsel?! The fact that MS is still one company and for the most part doing business as usual let the world know they have some pretty good counsel.

"take it up with Judge Kimball" (5, Funny)

Anonymous Coward | more than 7 years ago | (#17063858)

SCO should claim that their code was inserted into Linux by a one-armed man. Then Kimball would probably be more inclined to believe them.

Re:"take it up with Judge Kimball" (1)

walt-sjc (145127) | more than 7 years ago | (#17064394)

The log lady being an expert witness?

Maybe a partial answer why SCOX must keep trying (4, Informative)

KokorHekkus (986906) | more than 7 years ago | (#17063868)

IANAL etc.

Part of the Lanham Act (http://en.wikipedia.org/wiki/Lanham_Act [wikipedia.org] ) is often used when a company claims their business been hurt by false or misleading statements. There are 3 things that must be proved by the company that claims the damage: 1) there was a false or misleading statement made, 2) the statement was used in commercial advertising or promotion and 3) and the statement creates a likelihood of harm to the plaintiff.

Now looking at how SCOX has kept shooting it's mouth of in the early phases of the case I'd say that 2) and 3) are pretty self-evident for those who have followed the development of this case. 2) because SCOX made a lot of loud statements during their Road Shows (which they only made to market themselves) that never materialized. 3) can most likely be proved just by reading what market analysts wrote based on SCOX:s statements and the initial soaring of SCOX value.

So the only way to weaken the Lanham Act accusations from IBM is to weaken 1). If something, just any little thing, does survive into the trial itself it might give SCOX the chance to argue that the other statements were made in some kind of good faith. So they try to wriggle anything in sideways, under or over that can help them to do that. Because if they don't then it will look very bleak for them when Lanham Act part of trial starts.

Re:Maybe a partial answer why SCOX must keep tryin (3, Insightful)

overnight_failure (1032886) | more than 7 years ago | (#17064138)

Good faith won't save SCO wrt the Lanham act as the privilege only covers statements made to the court, not to the press.

SCO's strategy (5, Insightful)

Anonymous Coward | more than 7 years ago | (#17064056)

Novell and IBM have both filed for summary judgements on SCO's claims and on many of their own counter claims. If the judge grants that then a jury trial isn't needed. The judge can do that if the case can be decided entirely on the basis of law. In other words, there are no disputed facts.

An example of something that could be decided as a matter of law would be whether Novell transferred any copyrights to Santa Cruz and whether they then passed on to SCO. The judge could simply read the contracts and rule that the ownership of the copyrights had not changed hands; no need for a jury.

SCO's only hope is to get their case in front of a jury and that hope is based on being able to confuse the jury and get a verdict that they don't deserve.

When discovery closed, SCO had not dredged up anything that could serve as a disputed fact. What they did put before the court was mostly pitched out by Judge Wells because it was not nearly specific enough. It was like: Shop keeper "He stole something from my store."
Cop "What did he steal?"
Shop keeper "Something; it was in the catalog."
Cop "How do you know he stole it?"
Shop keeper "He was in the same city."
If you haven't been following this sorry mess, you'll think the above scenario is exaggerated. It isn't.

In order to get something past the judges and before the jury SCO tried to sneak some stuff in via the expert reports. Unlike the rest of us (who have to stick to facts), experts are allowed to give opinions to the court. SCO was hoping that they could sneak in some opinions that would make it look like there were some disputed facts. Then they would get their jury trial.

Notice also the judges' strategy. They aren't allowed to tell SCO that they are full of crap. They have to assume that SCO is acting in good faith. Thus, when judge Wells threw out most of SCO's evidence, she did it on the basis that they willfully withheld evidence. They said they had evidence and they didn't present it so they must have withheld it. Of course, we all know that SCO never had any evidence. Similarly, we know that the expert reports were just embarassingly bad. I feel sorry for the experts.

This week isn't good? (3, Interesting)

RedShoeRider (658314) | more than 7 years ago | (#17064244)

"This really hasn't been a good week for SCO."

No. Shit. Sherlock.
From the looks of it, SCO's last good week was back in 2000:
http://finance.yahoo.com/q/bc?s=SCOX&t=my [yahoo.com]

Re:This week isn't good? (1)

Zontar_Thing_From_Ve (949321) | more than 7 years ago | (#17064350)

From the looks of it, SCO's last good week was back in 2000:

You're right, but SCOX is still traiding at $2 a share, even with this bad news. In the past year, the lowest it got was $1.52 a share and it climbed up after that. That is exactly why I said yesterday that I expect SCO to survive until the trial starts in September.

Re:This week isn't good? (1)

swillden (191260) | more than 7 years ago | (#17065306)

From the looks of it, SCO's last good week was back in 2000:

You're right, but SCOX is still traiding at $2 a share, even with this bad news. In the past year, the lowest it got was $1.52 a share and it climbed up after that. That is exactly why I said yesterday that I expect SCO to survive until the trial starts in September.

That's only because SCO's stock doesn't really trade. Nearly all of it is owned by insiders who seem quite willing to continue buying it to keep the price up. So little of it trades that it's not hard to keep the price up.

As for SCO's survival... the stock price is irrelevant to that question. SCO is running out of money, quickly. Another company would have the option of issuing and selling more shares to raise capital, but who would buy it? The insiders who hold the price up can't afford to raise the tens of millions needed to continue propping them up, and there's no way Microsoft or any other opponents of Linux are going to give them any more cash -- IBM has already issued lots of subpoenas following the money trail of the previous "donations", and it seems likely there will be some more legal action on that topic coming after SCO is finally finished. MS would have to have complete idiots for attorneys to want to get any closer to this mess than they already are.

No, based on SCO's burn rate, cash on hand and lack of any viable options for raising further capital, it's not at all clear that they're going to survive long enough to make it to trial with Novell. And, of course, it's likely that there is going to be no factual dispute in a key part of Novell's claims -- that SCO was supposed to pay 95% of the money they got from Sun and MS licenses to Novell. If that is resolved via summary judgment in Novell's favor, SCO will be immediately bankrupt. If Novell even wins their injunction motion, asking the court to freeze enough of SCO's assets to cover the debt, SCO will be immediately bankrupt.

Fry them All (1)

PateraSilk (668445) | more than 7 years ago | (#17064270)

I'm cheered by this discussion of the Lambert Act because it sounds like maybe, just maybe, these thugs will possibly be brought to heel. Darl et al. are the worst kind of snake-oil salesmen and probably have millions salted away in some account in the Caymans. Someone needs to get this cash and return it to the shareholders. However, they'll probably slither away, hopefully never to emerge into the light. C'est la vie.

SCO? SCO Who? (0)

Anonymous Coward | more than 7 years ago | (#17064450)

Novell is the problem du jour.

mod d03n (-1, Troll)

Anonymous Coward | more than 7 years ago | (#17064672)

gloves, cond0ms [goat.cx]

Win Or Lose... (1, Offtopic)

Greyfox (87712) | more than 7 years ago | (#17064976)

The lawyers in this case will make more money than most of us will see during the course of our entire careers.

Of course, IBM isn't going to just stand there after letting SCO dig a hole for the past 3 years either. They're going to open a can of whoop ass and in a matter of days from the time they do it I'm sure there will be plenty of whoop ass to go around. I don't think they'll be satisfied simply to destroy SCO -- I think they're going to go out of their way to see to it that lives are destroyed. I wouldn't be surprised if people end up in jail over this case. It might be that SCO's legal team will be able to simply stand around and watch the carnage. Perhaps IBM won't go after them personally -- after all, all they really did was represent SCO's dubious case as well as they could. I'm not sure how they'll ever find work again after this farce of a case, but then again they do seem to be able to have miserable failure after miserable failure and people still want to hire them.

Anyway, it seems like this are starting to hop in this case and it sounds an awful lot like IBM cracking the top on that can of whoop ass. I have a feeling they'll spread it around quickly once the ball starts rolling.

I hope not. (1)

LWATCDR (28044) | more than 7 years ago | (#17065570)

I don't car if it is IBM or the RIAA the idea of using criminal law in what is a civil matter is just wrong.
If the people in SCO broke the law then I have no problem with them receiving the consequences of their actions, but trying to "ruin" peoples lives is just wrong and sick.
Let's put this in perspective the the people that run SCO have not killed anybody. They have not tortured anybody. They have not raped anybody. They have molested anybody.
Those things are happening right now in the Sudan and other places. Let's us be glad this will be over soon but let's not raise this to the level of hate.

Others see success, I only see failure (1, Insightful)

AK Marc (707885) | more than 7 years ago | (#17065460)

How is this a good thing? Someone (I'll include a company as a person for this discussion) can, without merit, take another person to court, without basis, without proof, without even a specific claim, and tie up resources for years. How exactly is this a good thing? People claim "this is a win for IBM" or some such. The only win for IBM (and the rest of us) is if the process ended long ago with a dismissal with prejudice. It's too far along for anything to be a "win" for anyone. It's just a matter of how much is lost. The courts apparently have the duty of allowing those willing to spend money to harrass anyone they want for years and years. The only think that might approximate a win is if every lawyer that ever worked for SCO on this case was disbarred for work on a bad-faith lawsuit. Except, in practice, lawyers are hardly ever disbarred for anything other than getting convicted for a felony. Acting in bad faith is a reason to disbar in most (all?) places. I'd like to see that enforced sometime, starting with this case.

Strike Zillion, They're Out (1)

Doc Ruby (173196) | more than 7 years ago | (#17065604)

A legal system actually interested in justice would strip those "experts" of their privilege to testify credibly in court.

And disbar SCO's lawyers for their outrageously frivolous lawsuit.

Instead, those experts and lawyers will make the only money anyone will see in this endless travesty.

And American taxpayers will subsidize it, with all the time and resources consumed by the public courts which have a lot better things to do.
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