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| Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. |
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Saturday, December 06 2003 @ 09:30 AM EST
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I asked an attorney friend, Webster Knight, the important question: what happens next? We've seen the judge's order, but what does it mean? What are the possibilities? What might SCO do now? It is always risky to predict legal outcomes, but as it happens, my friend privately predicted exactly what happened yesterday. So it seemed like a good idea to pick his brain again, and this time to share it with you, especially because I noted all the comments asking the "what happens now"question. Here are his thoughts on yesterday and what it means for SCO and what could happen next.
**********************************************
READING THE LEAVES,
~by Webster Knight, Esq.
Friday was a walk over victory for IBM. They didn't have to say anything. They didn't even have to be there. The Judge stated what she intended to do, gave SCO their fair hearing, then did what she said. IBM's Motions were granted, SCO's was not.
The Court has given SCO thirty days to comply with IBM's discovery demands in the way IBM wants it. That is a hard thirty days. Assuming that the reports we have received are accurate, the Court said if they needed more time for the hearing, that could be changed. They still only get thirty days to comply with the discovery. If they want more time, they are going to have to show substantial compliance and even get IBM to consent to an extension. Their time has come to show the evidence.
Groklaw's reporters were fast and accurate. Their impressions were certainly corroborated by the decision. IBM's presentation came through as masterful and concrete. Their point with the two bound volumes, one big and the other small, was easy to capture, hard to forget. It was not a question of substance over style. IBM had both; SCO neither. When the transcript is posted on Groklaw, I won't even feel the need to read it. [PJ: Web! We're paying a hundred dollars for that transcript. You have to read it. Kidding. I know what you mean.]
The leaves at the bottom of my cup spell out "Boies." Where was he? Why get a celebrity lawyer and not use him? Why would he allow himself, as the marquee lawyer, to be so behind the scenes? Is this what you get for the 10 million interim fee? I guess the client doesn't mind; they got 40 million from that deal. But why is he missing from action? Are they saving him for the real trial? With days like today, they will never get to the real trial.
The leaves have settled and shifted. They spell out ethical and reputational considerations. Is Boies now worried about the state of SCO evidence? Are they going to pull out all of their aces on the thirtieth day? Why stonewall and play games with the Court on an issue that wasn't even close, as the day shows? Is he distancing himself from their evidence and this case? Does he lack confidence that SCO people can prove their claims against IBM and Linus, who know who wrote every line of the whole kernel? Does he consult Groklaw and realize SCO doesn't know the provenance of its own code? Doesn't he want to stake his reputaion on them? Is his own standard of proof preventing him from presenting half-baked claims of code and methods that will wither before open scrutiny as have all disclosed claims heretofore? Is Boies saying this should be settled because this is as far as I can go? Does he worry about his name and ethical standards?
I'm sorry, dear readers, these must be SCO leaves because they give me no direct answers.
SCO must now turn their reluctant eyes to The Code. Everything they now disclose, if they do, has likely been copyrighted and distributed under the General Public License --distributed BY THEM. They will then have to try to convince the Court to disregard their nine years of distributing Linux under the GPL, pleading incompetence, I imagine. They will also need to convince the Court that US copyright law must be reinterpreted to invalidate the GPL. If they try to do these two things, they will be laughed out of court. If they can't do these two things, they will be laughed out of court, not that an IBM Motion for Summary Judgment is anything to laugh at. I am not sure IBM even needs discovery to file it, since the GPL seems to apply to every conceivable line of code in question.
My leaves stop at the GPL. Speculating beyond the GPL takes one into contracts, methods and secrets, numas, jfs, and "ixes" like UNIX, AIX, DENIX, XENIX, and I'll leave that part to others.
Like the Courts likely will, I will stop with the GPL.
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| Authored by: mmb on Saturday, December 06 2003 @ 11:37 AM EST |
After what Linus dug up yesterday I'm pretty convinced the GPL is rock solid.
Matt
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| Authored by: gumout on Saturday, December 06 2003 @ 11:42 AM EST |
"It is always risky to predict legal outcomes..."
What voice did on my spirit fall,
Peschiera, when thy bridge I crost?
’T is better to have fought and lost
Than never to have fought at all.
"Peschiera" by Arthur Hugh Clough.
---
I hate to say I told you so... but I told you so.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 11:52 AM EST |
This looks like a future we want to be part of! Thanks for your views.
One question remains for me- if the SCO case gets thrown out are there any
repercussions for the SCO execs who have initiated this action, spread FUD about
IBM, SGI, Novell, Red Hat etc, and made a tidy bundle in inflated stock prices?
Is there not some kind of criminal element if the case is proven to be false yet
so many (slanderous?) claims have been made publicly?[ Reply to This | # ]
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- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: ffattizzi on Saturday, December 06 2003 @ 12:11 PM EST
- Pump & Dump complaint filed in September - Authored by: Anonymous on Saturday, December 06 2003 @ 01:39 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Saturday, December 06 2003 @ 01:56 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: John on Saturday, December 06 2003 @ 03:19 PM EST
- How much were the lawyers REALLY paid? - Authored by: valdis on Saturday, December 06 2003 @ 09:14 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Saturday, December 06 2003 @ 09:36 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Sunday, December 07 2003 @ 03:16 AM EST
- Shorting SCOG? - Authored by: Anonymous on Sunday, December 07 2003 @ 08:25 AM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Sunday, December 07 2003 @ 11:09 AM EST
- Now What Happens? "Reading the Leaves" By Webster Knight, Esq. - Authored by: knutsondc on Sunday, December 07 2003 @ 11:33 AM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Saturday, December 06 2003 @ 08:07 PM EST
- Enforcement - Authored by: Anonymous on Sunday, December 07 2003 @ 04:26 AM EST
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| Authored by: Raoul_Duke on Saturday, December 06 2003 @ 11:55 AM EST |
Very good article. I guess it does boil down to SCO and if they have any aces up
their sleeve. Are they waiting for the last moment before unleashing the
whirlwind.....or are they putting up less of a fight than we could imagine??
Apart the mention of Sequent's contract being different to IBM's i can't see
any possible angles that SCO have left.
Either way, SCO don't seem to know what they want.
Again, it's very intersting what happened to Boies. Seeing as they all knew
that it was the day that they had to admit they have no evidence, you would've
thought they'd send their 'pricey' lawyer in to spin some damage limitation
instead of Darl's brother......giving out weird pamphlets!!
IBM's case does seem pretty unbreakable ATM, unless there is something they
overlooked when they checked the Sequent contract.
As a (pretty silly) question, if (and that's a big IF) SCO were to win this
case, what consequences would there be for us European Linux users?[ Reply to This | # ]
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- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Saturday, December 06 2003 @ 12:33 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: surak on Saturday, December 06 2003 @ 12:53 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: ra on Saturday, December 06 2003 @ 01:18 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Saturday, December 06 2003 @ 03:17 PM EST
- If you believe Darl and Kevin - Authored by: DaveAtFraud on Saturday, December 06 2003 @ 09:00 PM EST
- Now What Happens? -"Reading the Leaves" By Webster Knight, Esq. - Authored by: Anonymous on Sunday, December 07 2003 @ 09:19 PM EST
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| Authored by: ProtoThad on Saturday, December 06 2003 @ 11:58 AM EST |
When this whole fiasco is over, PJ should write a book about it. I am certain
she will have no problem finding contributing writers or getting access to
interviews. I know I would definetely buy a copy. What say you PJ? I know a
good literary agent if you need one.
Thad Phetteplace
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| Authored by: Anonymous on Saturday, December 06 2003 @ 11:59 AM EST |
I read some of the articles about Boies, and he is always confusing the other
side by coming up with surprise moves. This fits, to some extent, with the
description of him playing Bridge by just putting his cards on the table and
playing them off the top of the card pile, one at a time, regardless of what the
other players played. This caught the other players off guard, so they
couldn't think as well as normal. So his not appearing could be something like
that. When you are in a tough situation, try surprise moves. It works very
well sometimes. He very clearly knows what the important things are, so this
might be a ploy to get people to forget the important points and spend time on a
side issue.
Or it could be that it is so odd to him that a group would go to a judge and say
"We need to see all the IBM AIX code, plus all design notebooks and
anything else that has ANY information on this, so we can see if there indeed
are ANY instances where IBM did put code in Linux that would be a violation of
our contract, or ANY instances where we could make it look like there were
violations. One thing about this stance is, it does make them look incompetent,
so it would help their incompetence argument, not even knowing what is in the
code they are selling.
I really believe that we should look at the Unix that SCO sells and see how much
GPL code they use in it. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 12:00 PM EST |
I think yesterday's hearing is a bit like in the Bible book of Esther when
Queen Esther gained the king's favor in the matter of Haaman VS the Jews. From
that point on it was all downhill for the wicked Haaman, who had made up his
mind to destroy the Jews. He ended up getting hanged on his own gallows, and I
suspect in a figurative sense SCO will meet a similar fate when it comes their
time to pony up the offending code and they have nothing of substance to show.
[ Reply to This | # ]
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- Now What Happens? - Authored by: Anonymous on Saturday, December 06 2003 @ 03:33 PM EST
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| Authored by: Nick on Saturday, December 06 2003 @ 12:00 PM EST |
| Thank you, Mr. Knight, for your expert opinion on the matter. It really is
amazing how quickly Groklaw digested these events and produced
relevant and
coherent commentary. In less than 24 hours we have
eyewitness accounts,
commentary, several near-transcripts, and legal
review of the events. Let me
repeat: Less than 24 hours. Wow.
I do have a follow-up question about a
point of law regarding affidavits.
If we assume that SCO knows they cannot
win, and has known that for
some time, but is trying to string this out as long
as possible so that Darl
gets his 4 consecutive quarters of profit, and the
insiders get as much
stock money as possible (and yes, I have no idea if this
is their
motivation, I'm merely positing this as one possible explanation),
then
we would expect them to delay as long as possible. After yesterday it
would seem not to be possible to delay past 30 days. But note this from
the
judge:
"Judge: Okay, this is my ruling, it is essential to get the
ball
rolling. My initial ruling stands. At this time, I will grant IBM's Motion
to
Compel both sets of interrogatories. IBM is to add Interrorgatories 12
and
13 to the listed deficiencies. SCO will have 30 days after the ruling is
recorded to comply. If they can't in good faith, they should file
affidavits as to why they cannot."
Doesn't this indicate that SCO
can file affidavits with some excuse why
they cannot comply in the 30 days? Is
there anything they can say to the
court that would allow them to legitimately
be granted extra time? What
are the likely outcomes in that case?
Thanks. [ Reply to This | # ]
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| Authored by: egan on Saturday, December 06 2003 @ 12:02 PM EST |
| So... from here, it might play out like this (IANAL, not legal advice,
etc.):
SCO either responds "with specificity" adequate to satisfy IBM and
more importantly the court, within the 30 days, or doesn't -- appeals Judge
Wells decision for IBM (not really a good idea, since it wasn't even close and
trial judges hate that), or pleads for more delay time to get
its act together.
Then Judge Wells will rule on SCO's motion to compel
discovery from IBM. How that goes will largely depend upon the code or other
alleged "misappropriations" or "infringements" SCO submits in response to IBM's
discovery requests.
It would be reasonable to suspect that Judge Wells will
be inclined to limit SCO's discovery of IBM materials to items relevant to SCO's
allegations in response to IBM's discovery requests. There goes SCO's unlimited
fishing expedition.
Next in order, it's not hard to predict that IBM might
file a Motion for Summary Judgement seeking dismissal of SCO's complaint.
Whether or not such a Motion for dismissal by IBM might succeed will depend upon
whether the issues raised by SCO are all invalid, even frivolous complaints --
as matters of law based upon legally incontestable facts. It's likely -- given
all we know about the extreme weakness of all of SCO's complaints and arguments
-- that this will be seen by the court and SCO's complaint will be dismissed
with prejudice. SCO and it's lawyers will be extremely lucky not to also face
sanctions for filing a frivolous lawsuit.
Then it will all collapse into
IBM's counter-claims against SCO. That could go on for a while and get
interesting. [ Reply to This | # ]
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| Authored by: PJP on Saturday, December 06 2003 @ 12:03 PM EST |
He has been very quiet recently, and his absence from the court yesterday really
does make one wonder if he is not spending more time on working out a clean exit
stratergy, or at least the least damaging exit stratergy.
If (when?) he walks, the game is over. The stock price will go through the floor
and SCO will be lucky to find themselves left with enough money to pay the
janitor, let alone a top-flight gaggle of lawyers [gaggle - is that the right
term for a cllection of lawyers :-)].
I actually have some sympathy for him. He must have been misled by someone he
trusted, I can't see anyone in their right mind choosing to blow a career and
reputation like this.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 12:06 PM EST |
"They will then have to try to convince the Court to disregard their nine
years of distributing Linux under the GPL, pleading incompetence, I imagine.
They will also need to convince the Court that US copyright law must be
reinterpreted to invalidate the GPL. If they try to do these two things, they
will be laughed out of court. If they can't do these two things, they will be
laughed out of court, not that an IBM Motion for Summary Judgment is anything to
laugh at."
From my September 9th Response to Darl's Open
Letter:
Furthermore, any claim that SCO didn't realize for 3
years that it was releasing it's own code under the GPL is likely to be laughed
out of court. You had the code, you could compare the System V and Linux code
bases, SCO had previously featured in its public statements its intent to
combine the Unix and Linux code bases, and now you claim you didn't
know?
Mr. McBride, the only way to defend this in court is to tell the judge
that you are a complete idiot, and that all previous mangement was equally
incompetent.
Did I call it or what? I guess I should wait
till 1/23/04 to start gloating, but it's nice to have a lawyer agree with my
assessment from 3 months ago.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 12:09 PM EST |
Very nice read. OK, here are my thoughts (and no, I am not a
lawyer).
SCO cannot give up or concede for a variety of reasons. They will
have to fumble on and be defeated. They will try to comply with the discovery
order by producing what they have and pleading for permission to present more
after IBM supplies it with the 40 million pages of code. The alternative is to
challenge Judge Wells's order, but I don't think they will do that.
The
order they must meet isn't written, but it should be a combination of the two
motions to compel. In a way, it will be more interesting to see what they
produce other than their clarification of their case. They should finally turn
over the Microsoft and Sun contracts. They should produce materials presented
to investors. They should produce reports their teams generated when they
performed their evaluations. (I presume something exists, but they are now
embarassed by it. If not....) This will prove invaluable to IBM in pressing
its counterclaims.
The less interesting material they produce will be their
specification of their complaint. They threatened to file copyright claims.
This will probably be some code from the ~70 files they claim should have joint
BSD and USL notices. I'm not sure how they will pin liability on IBM since IBM
resells Linux, they don't distribute it, but there will be some creative
argument. They will also specify the same old RCU, etc, again, this time
throwing out the files Groklaw has pointed out are silly. They will quote
selectively from the contracts to give support to their view of IBM's
obligations. In a way it will be more of the same things we have already
seen.
I consider it likely SCO will try to add Novell as a party. They will
make their claim to owning all Unix copyrights based on Amendment No 2, and try
to leverage this into some kind of broader case that makes an end run around
IBM's contracts, the waiver, etc.
Above all they will try to find some
factual matter that can survive dismissal and summary judgment and go to a jury.
Their case is so hobbled by their own misconduct and the complete lack of
substance to their claims that they can probably not find anything that will
stick, only things that will delay.
It may take a lot of skirmishes and
motions back and forth for IBM to whittle down SCO's claims. It helps immensely
that the judges are now on notice that SCO plays fast and loose with the truth.
Eventually IBM should be able to bring motions to dismiss or make summary
judgment in its favor.
Then the trial can proceed with IBM's counterclaims,
but SCO may not be in any position to defend itself at that point. This may be
where we see IBM try to pierce the veil and make Canopy responsible. In fact
this part of the case will be hotly contested. Canopy has plenty of money and
all the motivation in the world to defend itself. Moreover, Canopy would be
right to be held blameless if this were an ordinary business venture or
investment. I'll save my guess about how that will go for later. [ Reply to This | # ]
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- Random Musings - Authored by: Anonymous on Saturday, December 06 2003 @ 12:44 PM EST
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| Authored by: sam on Saturday, December 06 2003 @ 12:27 PM EST |
I have to say I had a blast yesterday at the hearing and posting feedback here.
OK, so I got a little attention as being one of those in the rarified sphere as
having been able to attend the hearing. It was fun, and I'm having fun thanks
to pj and the rest of you here. I enjoy the intelligent discussion.
Upon reflection, several things stand out from the hearing.
Judge Wells said she had read the SCO public pronouncements and seemed to place
weight on them. This was followed later by (imo) a stern rebuke "none of
us know!" referring to the notion that the court and the defendants cannot
tell what is relevant in discovery or what the issues are. I infer from her
comments that she also meant the court pleadings and evidence did not reconcile
with the public statements of SCO. Her actions (granting of the IBM motions)
clearly say "put up or shut up".
In addition, Mcbride made a loud statement with dramatic gesture. "There
are no trade secrets in SysV!" That is a verbatim quote and I'm still
wondering what he really meant to say. He followed that with a discussion of
"confidential information" from Monterey (unix on intel) that was
exported "somehow" to Linux. These questions lurk in my mind. Are
they going to abandon the original AT&T license dispute? Did they finally
read the side letters and amendment? If so, what licenses and contracts will
they use to litigate the Monterey issues? Have they been submitted as exhibits
yet?
Finally Mcbride mentioned the names numa and rcu with all of the bravado that he
really beleives these are his de facto slam dunk trump cards. Hmmmmm. As the
above article explains, there's that pesky GPL issue and prior SCO releases. I
suppose Darl has read the GPL by now, maybe even Boies. Kevin I think, hasn't a
clue, ....among other things, about that little obstacle.
Thanks all,
I assure you, I won't miss the next hearing either. I trust you find my
feedback of interest.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 12:34 PM EST |
OK, so I've been thinking about Kevin's statement, in front of the court now
less, that SCO intends to file a an amended complaint inculding copyright
infringement. The question I have is what material could they be talking about?
For copyright infringement in Linux, SCO would have to show line-by-line copying
a SCO file, with IBM's copyright pasted in, or with SCO's copyright taken out.
I don't think they can do either.
Is is possible that they are planning to add copyright infingement in *AIX*, in
that IBM is continuing to distribute AIX despite SCO supposedly
"terminating" the license?
What do others here think?
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 12:38 PM EST |
Boies wasn't there because this was a lost battle, anyway. There is no sense
in getting the judge associate Boies with pointless stalling. When they send
him in, they want him without a backlog of babbling to pass the time.
And passing the time is, at the current point, important. Remember that Boies
has been given a substantial share of the company, a desperate measure. He is
interested in keeping its stock value afloat until he can cash in. The longer
they keep the process delayed, the better. And remember that Boies is also
entitled to considerable cash-in if SCO gets bought in order to cut this
silliness short.
When Boies is of the opinion that he can change things to SCO's advantage,
you'll be seeing him around.
This was no such time.[ Reply to This | # ]
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- Don't be dense. - Authored by: Anonymous on Saturday, December 06 2003 @ 02:03 PM EST
- Don't be dense. - Authored by: Anonymous on Saturday, December 06 2003 @ 06:38 PM EST
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| Authored by: Anonymous on Saturday, December 06 2003 @ 12:40 PM EST |
When SCO is sold boies is getting 20% wasn't it?
Maybe he dosn't care in winning the IBM case but only waiting until SCO is
sold. Maybe he doesn't want to wait for a year because that gives to much
uncertenties and he is gambling on a quick buy out...
jer[ Reply to This | # ]
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| Authored by: stdsoft on Saturday, December 06 2003 @ 12:40 PM EST |
Short answer... Yes, very much so.
It seems a SCO insider indicates SCO honestly believes there is an issue. At
the least, if SCO execs are disingenuous they are doing a good job of hiding it
from other employees. I wonder if perhaps SCO initially suspected IP theft, did
a little digging and then thought they found a smoking gun. That would sure
explain things such as Forrester, Royce, DB, Baystar etc. Let me elaborate.
Now we know that a comparison of SysV and Linux will turn up a great deal of
overlap. That overlap is explained by a vast array of perfectly legitimate
reasons. Early versions of UNIX, for example are in the public domain. Caldera
themselves offered pre-SysV source into the public domain in 2000. SCO has
likely availed themselves of code in the public domain from any number of
sources that happens to have also been incorporated into Linux. They have also
probably incorporated GPL source. A code comparison between SysV and Linux will
undoubtedly show some correlation.
But what if something else was found; more recently developed enterprise-class
source. SCO would automatically assume they have found the smoking gun. The
other more circumstantial evidence becomes supporting and suddenly SCO thinks
they have a case. SCO is in dire financial straights. With only $8MM left in
cash, SCO goes bankrupt in 2 quarters. So they contact Boies and get him fired
up. They think, OK worst case IBM will buy us out. Microsoft and Sun suggest a
temporary band-aid on the cash situation solved by making a combined $15MM
“license” purchase. Microsoft can’t keep this up due to DoJ and PR issues, so
they ask RBC to speak with SCO about the PIPE deal.
They charge forward with the press, with analysts, with lawyers, with fund
managers and with investors. While all this is going on the former Enterprise
Linux developers at SCO are being really quiet because, oops, they violated
their employment agreement and made confidential IP from SysV available to the
Enterprise Linux development teams. They haven't said a word because any of
them would be open to some serious lawsuits from SCO. If any of them were left
at SCO, they would additionally be terminated with cause. These facts surfaced
in a very public way only this week here at Groklaw... that developers at SCO
(13 of them) were substantially involved in Enterprise Linux development.
Current SCO management knew about SCO Linux development, but may not have
clearly understood the extent of Enterprise Linux involvement. SCO management
was in such a big hurry to patch up the financial situation they didn’t dig to
see if SysV code was made available by the SCO team. Meanwhile, the general
public was not generally aware of the extent to which SCO participated in the EL
development so SCO execs had this action as a secondary priority.
Now SCO is in chaos. The smoking gun is in serious doubt. Best case, evidence
has been severely tainted. This all comes at the same time the discovery hammer
comes down. In 30 days they have to present evidence. Revelations of SCO
employee involvement with Enterprise Linux gets back to Boies. He was already
troubled that SCO execs have been running their mouths and damaging the case.
But now this is the last straw for Boies; he doesn’t need all this. SCO execs
haven’t done their diligence and the evidence turns out to be tainted and
probably useless. This is my guess as to why nobody from Boies team was at the
hearing.
[ Reply to This | # ]
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| Authored by: Scriptwriter on Saturday, December 06 2003 @ 12:43 PM EST |
I may be wrong -- it's not unheard of, in fact my family lets me know it
happens on a regular basis -- but I've come to the conclusion that The Darl
hired Boies for the same reason he hired the bodyguards: so he could be seen
with them, not because he had any real idea he was going to use them.
Someone earlier said that Boies is known for surprises he pulls out of his hat.
I honestly can't see what surprise he could come up with that would salvage
this case. Granted, I'm not a lawyer, I don't even play one on the Internet,
but the two possible outcomes seem to be exactly as Webster describes them.
Either SCO comes up with a supposed example of copying from AIX/Dynix into
Linux, which IBM's lawyers will certainly demolish in the 14 days before the
hearing, or they will have to state, in court and on the record, that they
don't have anything. Either outcome is followed immediately by IBM moving to
dismiss SCO's case.
The worst part is, we have to wait almost a month for the next move.
---
The clock is ticking, SCO. January 9th. Tick. Tock. Tick. Tock.[ Reply to This | # ]
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- Agreed - Authored by: mac586 on Saturday, December 06 2003 @ 01:19 PM EST
- Narcissist - Authored by: Anonymous on Saturday, December 06 2003 @ 04:37 PM EST
- Boies - Authored by: Anonymous on Monday, December 08 2003 @ 02:39 PM EST
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| Authored by: Anonymous on Saturday, December 06 2003 @ 12:46 PM EST |
| It's pretty obvious from the start that SCO/Caldera has no serious basis to
support their Linux allegations, against IBM or anyone else. No matter where SCO
goes, they'll bump into the GPL wall and their attempts at setting it aside are
futile.
The Project Monterey claims are quite a different matter. There's
no GPL here, just OldSCO and AIX codes which, by and large, constitute trade
secrets and are kept as such. Now that NewSCO has the AIX code, count on them
to find similarities with their own Unix, by pulling said similarities out of
their asses if they have to, and use them to keep the lawsuits rolling. And
unlike what we collectively know about Unix and Linux source codes, there isn't
much that we can tell about the Monterey project, SCO Unix or AIX. And there
isn't much that SCO has said publicly on the subject either. The vast majority
of their comments to the press has been about Linux, not Monterey. So,
basically, I'm as optimistic about the Linux part as I've always been, but the
the Monterey part, I really don't know.
I am anxiously waiting for SCO's
new and improved copyright claims next week. Gil [ Reply to This | # ]
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| Authored by: jrb on Saturday, December 06 2003 @ 12:50 PM EST |
Federal Judge Wells not only ruled in IBM's favor *from the bench*, a big win
for IBM, she also ruled *against* SCO by postponing additional discovery until
SCO complies.
SCO now must show what evidence they have to back up their claims. SCO no longer
has the opportunity to continue to delay and obstruct during discovery as they
have in the past.
Judge Wells gave SCO *only* 30 days to comply, a *very* short period for a
Federal Court. Sounds like Judge Wells wasn't very happy with SCO's behavior
:-)
My favorite quote is Sorenson's "We don't think they had any evidence at
the time they filed the case and we don't think they have any evidence
now." Amazing words to utter in open court before the Judge.
If Sorenson is correct and SCO produces nothing or just more garbage in support
of their claims then I wonder if we will see Sorenson filing a Rule 12 dismissal
or in the alternative a rule 56 summary judgment against SCO's claims.
Not an uncommon move when the other side's claims have no merit.
Is *this* what Bois sees coming?
[ Reply to This | # ]
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| Authored by: gumout on Saturday, December 06 2003 @ 01:04 PM EST |
David Boies is too busy right now selling SCOG stock
to file any legal briefs. Give the poor guy a break.
---
It's my table and I'll pound on it if I want to![ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 01:06 PM EST |
'The SCO vs. IBM legal battle has been viewed by some observers as a tiny
company taking on a corporate behemoth. McBride, brother of SCO chief Darl
McBride, added to that perception during the Friday hearing, twice referring to
SCO as "our little company."'
Not much that's new to us in this story, but
it does read as if the reporter actually attended the hearing. If not, he did a
good job with his sources.
I especially like the quote above. Did Kevin
really say "our little company"? What a doofus.
http://deseretnew
s.com/dn/view/0,1249,565036825,00.html
[ Reply to This | # ]
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| Authored by: Mark Grosskopf on Saturday, December 06 2003 @ 01:17 PM EST |
Since IBM has already filed a countersuit, and it it is likely that McBride
& Co. will shrug their shoulders with palms out when Jan 9 arrives, would
they file bankruptcy? Seeking shelter behind Chapter 11 would allow them to
fend off the liabilities, wouldn't it?
Under the pretense of re-organizing, they could "find" a buyer for
their assets (the few husks and exo-skeletons of UNIX code on which they can
actually claim to control licensing) and sell off.
And what if that buyer were a fronted investment firm which paid them $60 Mill
for it (ironic, the amount of their current liabilities against stock, or close
to it). It would allow them them to pay off the money trail of investments,
leaving the stock holders pinched for their stock buys (serves them right in my
opinion), even those that bought short (I think there's a rule that can prevent
trading of the stock until the bankruptcy is finalized). The circle is
complete, all investments by RBC and the PIPE are made whole, the
stockholders/shorters take a bath, and proceedings get sealed and no one,
without exceptional difficulty and expense, will be able to follow the money
trail...
Plus, SCO has delayed their Q3 reporting...
Could IBM file to place a freeze on SCO's assets, preventing sale or transfer,
since they have a pending lawsuit?
Excuse the gloom, but I tend to agree with the thread that Microsoft is somehow
linked to this lump of spaghetti. Regardless of what statements SCO has made to
the press, I think their past actions have been carefully considered in terms of
timing, as well as what they have included in their 10-Q filings so that the SEC
doesn't have much to pursue. And don't forget that Kevin McB, Darl's other
brother Darl, is into securities litigation. I don't think SCO is a big enough
wart (as compared to ENRON or WORLDCOM) to create a smell odiferous enough to
initiate investigations, SEC or Congressional.
And MS was so quick to stand up (on a SUNDAY no less) and enthusiastically claim
their support for IP rights and the purchased licensed (revenue for SCO). And, I
think I read somewhere that MCBride and others took stock options in lieu of
paychecks.
Ah, what tangled webs we can weave, in our imaginations as well as reality...
Mark[ Reply to This | # ]
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| Authored by: amcguinn on Saturday, December 06 2003 @ 01:20 PM EST |
| I'm not sure that the GPL really comes into SCO vs IBM in a big way.
SCO
claims IBM improperly contributed code to Linux. If SCO distributed that code
under the GPL, they did it after IBM's alleged improper actions, and
as a result of IBM's actions -- that GPL distribution wouldn't
retrospectively get IBM off the hook. (It might reduce damages, I
suppose).
Of course, the GPL is very relevant to IBM's countersuit: SCO
clearly has no right to ask anyone for payment for "Linux Licenses". It would
also be central to any case SCO might bring against end users. [ Reply to This | # ]
|
- GPL not central - Authored by: Anonymous on Saturday, December 06 2003 @ 01:48 PM EST
- GPL not central - Authored by: Anonymous on Sunday, December 07 2003 @ 05:31 PM EST
| |
| Authored by: shaun on Saturday, December 06 2003 @ 01:39 PM EST |
I don't think SCO has any cards left to play. The obvious "put up, or
shut up" ruling against SCO forces one of two scenarios.
1.) SCO actually produces code they believe is infringing. This code most likely
will be shredded by IBM and proven to be available for public consumption in
some way. Even if it isn't it will be so minor that IBM will simply tell the
judge that they will work with the Linux developers to either remove it or
replace it.
2.) SCO submits an affidative that they are unable to produce the code that is
infringing. Remember they have to be explicit as to why they cannot produce this
code. IBM at that point will have SCO for lunch and it will be a dismall day for
the Executives at SCO if this happens.
This ruling put SCO on the "hot seat" but good. They are now in
effect ordered to "produce" their evidence to IBM and until they do
so there will be no discovery for them.
--Shaun[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 01:49 PM EST |
Offtopic, but important (and probably discussed earlier..)
SCO isnt run by stupid dumb people, although it seems that way, consider this,
1) if you yell out loud and forward stupid claims, making yourself as rediculous
as possible in every media, nobody will take you serious anymore; as planned and
we see today.
2) Suddenly come up with factual real evidence which proof them right, and
everyone will be asthonished, since SCO has already gathered all the media
around them.
3)Because of this 'proof', even if it is 10 lines of code, will boost their
case and credability.
Suppose the following:
1) SCO wanted to sue IBM, but made sure some identical, well written recent
code, was inserted and accepted into the kernel by someone who claims to be a
'volonteer' programmer, and probably by today is untraceble.
2) the code gets addopted into the kernel.
3) SCO finds the(ir) 'smoking gun', which they have setup, and obviously
claims it's their IP, since the code wasnt available in Unix literature, BSD,
or any earlier submissions by Caldera.
4) The submitter is untracable, ... et voila
5)Copyrighted code can get into the kernel without approval of the company
(SCO)
Perhaps far fetched, but that is the way I would set this up if I was in
charge.....
greetings
Patrick[ Reply to This | # ]
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| Authored by: solman on Saturday, December 06 2003 @ 01:56 PM EST |
Lots of people are suggesting that SCO will come up empty handed after 30 days
or otherwise fail to present evidence with sepcificity.
I doubt that. They know that their firm's existence is riding on the
continuation of the lawsuit. Even filing suit against SGI and other companies
will not save them if the IBM case is dismissed.
Therefore, after 30 days I predict they identify specific lines in specific
files of specific versions of Linux that they claim rights to. They will
include:
Code implementing NUMA that they claim embodies confidential information that
IBM was contractually obliged to keep confidential.
Code which appears in substantially the same form in both Linux and SCO products
which SCO claims that it owns the original copyright to.
BSD code which SCO claims has been handled in ways which are inconsistent with
the (non-public) settlement agreement.
The code will likely include parts of XFS and the kernel which have already been
replaced with newer (unquestionably legitimate) versions.
The Linux community will quickly show that most of the disputed code was
obtained legitimately, but many articles will be written about how "SCO
finally identified the disputed code" and there will be enough issues of
fact that SCO is able to avoid a dismissal until at least 2005.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 02:00 PM EST |
Well according to newsforge this is the next move of SCO
http://www.newsforge.com/trends/03/12/04/1419246.shtml?tid=149&tid=20&ti
d=85
The already hated RIAA and MPAA found new friends in the form of the also
behated SCO and formed ORAMITY to sue the whole world for $63 billion.
I read it and thought this can't be true, they are claiming words like
"i'll be back" and because most of the internet runs on linux
servers they think .... well a lot off bullshit[ Reply to This | # ]
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| Authored by: John Douglas on Saturday, December 06 2003 @ 02:02 PM EST |
Evidences of desperation:
1) the claim that a linux customer would be sued within 90 days.
2) the claim of adding copyight violations - this requires specifity and may
have been introduced to indicate to the judge that they were delaying not
because of a lack of evidence but because they didn't know how organise the
data in the right way to approach the case. This is not good because this shows
Boies et al as not being able to develop the required legal 'formula'. However
it does up the ante when it comes to providing the evidence since, having made
that statement, they have no excuses left (i.e. copyright is more specific than
IP violations).
3) Kevin being related to Darl (if this is true) - consider who you would turn
to in moments of adversity - family. The fact that Boies et al were not present
indicates they thought it was not worth attending but a total no show on SCO's
side would be the end. Do we know enough about Kevin's involvement, to mark his
appearance and Darl's presence as something significant (albeit sad)?
It would be interesting to know Darl's demeanour when talking to Evan. This
could be important for the future since the whole case seems to have been driven
by one man's personal convictions. To me (in the UK) Darl has always seemed to
represent a stereotype of a mid-west fundamentalist preacher, blithely ignoring
everything in their convictions. Much of the time, SCO seems to regard the case
as being more about 'personalities' than facts. I get the feeling that the
basic need to supply facts as a plaintiff escaped them because of this.
If this is the case, once Darl's personal bubble bursts, I don't think the
case will be pursued by SCO and they are likely to attempt to reach out-of-court
settlements with IBM and Red Hat.
note: I believe I am correct in thinking that Darl himself has not been selling
stock?
---
As a Safety Critcal/Firmware Engineer, everything I do is automatically
incorrect until proven otherwise. (The one aspect of my work that my wife
understands).[ Reply to This | # ]
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| Authored by: moogy on Saturday, December 06 2003 @ 02:04 PM EST |
I have created a channel #Groklaw on irc.fdfnet.net
to see if there is any interest.
FDFnet is a small but stable irc network that has
existed since 1997 and I have been a long time global
oper. We have our own hacked ircd version and our
own, completely original coded services which include
nickserv, chanserv, memoserv and adminserv.
Please expect the channel to be slow and with few
users at first.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi
[ Reply to This | # ]
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| Authored by: geoff lane on Saturday, December 06 2003 @ 02:15 PM EST |
Yes, IBM has a problem. How do they win in such a manner that prevents some
other small company trying the same thing? To send the correct message IBM has
to ensure that when it's all over there is nothing left of SCO except a smoking
crater which smells faintly of sulpher and Boies, Schiller &
Flexner
don't walk away from the ruins with $40M.
I'm guessing that US
bankrupcy law is similar in outline to UK law. When a company goes bankrupt
there is a set pecking order for claims to the remains. Roughly it's going to
be
- government taxes,
- lawyers,
- banks,
- other secured loans
and right at the bottom,
- unsecured loans and the common
shareholders.
No matter how you cut it, the poor sods with unsecured
loans and shares are going to lose a lot of money when SCO goes under.
Even
if the shares drop to something like $1.50 (as they were last year at this
time) BS&F still walk away with their fee and maybe $5M more win or
lose.
If there is the slightest suggestion that IBM or anybody else is keen
on buying SCO, the share price will stay high and BS&F make even more money
for doing almost nothing. In fact BS&F have a very good motive for finding
a rich buyer as quickly as possible and arranging a marrage.
One can only
hope that SCO has been slow paying their
taxes, though with K. Fred Skousen and
a number of other accountants on the board of SCO it's unlikely.
I also see
that there are four lawyers with the name Boies working at BS&F; perhaps
a memo went astray and the wrong Boies turned up to the court :-) [ Reply to This | # ]
|
- IBM Has A Problem! - Authored by: Anonymous on Saturday, December 06 2003 @ 09:20 PM EST
- Bankruptcy - Authored by: Anonymous on Sunday, December 07 2003 @ 04:59 AM EST
- K. Fred Skousen - Authored by: hanzie on Sunday, December 07 2003 @ 05:52 AM EST
| |
| Authored by: ijramirez on Saturday, December 06 2003 @ 02:22 PM EST |
I have noticed that SCO and Caldera keeps making references to Monterrey project
in very subtle and not so subtle ways. Even Ransom Love, who has shown surprise
about SCO and their Linux lawsuits/comments have mentioned how mad Caldera was
with IBM and their pulling back from project Monterrey.
I am begining to think that the entire IBM/Linux contract thing is all a
smokescreen. They wanted to get the entire AIX code and the way to force IBM to
disclose it was through the alleged improper contributions of SCO code to Linux.
I am sure IBM was not going to surrender AIX code so easily without this
lawsuit. Once SCO gets all of AIX code they will start matching it with the code
gave to IBM for project Monterrey (don't forget they have said that they gave
IBM their code but that IBM never made any significant contributions to
Monterrey before they pulled out of the project). They hope to find SCO code or
specific methods (trade secrets) they made available to IBM for Monterrey in AIX
and that is where their real lawsuit will begin. Remember that their 3 billion
lawsuit was based on AIX code not Linux.
I think we have being duped to believe it was about Linux, when in reality, SCO
is going for a fishing expedition looking for Monterrey's code in AIX. If they
find SCO's code supplied to IBM for Monterrey in AIX, IBM might be forced to
settle.
The complications might arise from: 1) inability to produce any Linux code that
belongs to SCO and having the judge throw out the case before IBM supplies them
with the code they are demanding in discovery; 2) inability to find any
signifacnt Monterrey code in AIX; 3) IBM dragginf their countersuit long enough
so that SCO runs out of money and goes bankrupt; 4) investors loosing faith on
SCOs arguments and SCO stock collapsing; 5) additional lawsuits from other
companies like HP and SGI; (I don't think Novell/SuSE will not sue since there
is no reason to spend money in a lwsuit that SCO might successfully get
consolidated with RedHat if the arguments are similar enough[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 02:28 PM EST |
My SWAG is that SCO at a minimum produces the NDA code that has not yet been
publicly debunked and whatever else they might have handy.
In the few days
before the next hearing, it's all found GPL'd -- anybody want to guess why Darl
is spouting on the "unconstitionality" of the GPL?
Reason numero uno is that
IBM's lawyers will use the GPL to pick SCO's bones clean: - first: to
dismiss SCO's claims
- second: to obtain a big enough award against SCO in the
counterclaim to become the owner of SCO's assets, especially any rights held by
SCO to Sys V code.
It looks to me that Darl did not realise that the
code on which SCO is making its IP claims was GPL'd by SCO itself -- testimony
to the usual knowledge gap between newly arrived upper management and the
techies who know where the code's come from and where it's gone.
It kinda
reminds me of mooses in rut that take on freight trains -- Mooseburger anybody? [ Reply to This | # ]
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| Authored by: leb on Saturday, December 06 2003 @ 02:42 PM EST |
I just want to add my plug to PJ's:
When the official transcript comes out, read it. You will enjoy it even more
than the summaries provided. There were probably less than 10 of us Groklawers
there. When the transcript is examined by _all_ Groklawers, you will notice
things and subtleties that we missed.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 02:53 PM EST |
Judge orders SCO to show Linux infringement
http://zdnet.com.com/2100-1104_2-5114689.html?tag=zdfd.newsfeed
or
http://news.com.com/2100-7344_3-5114689.html?tag=nefd_top
[ Reply to This | # ]
|
- News ZDnet - Authored by: Anonymous on Saturday, December 06 2003 @ 03:32 PM EST
- News ZDnet - Authored by: rand on Saturday, December 06 2003 @ 05:41 PM EST
| |
| Authored by: gdeinsta on Saturday, December 06 2003 @ 02:57 PM EST |
In case you missed the article on slashdot,
here is a press release
from NSF - OLPA (National Science Foundation - Office of Legislative and Public
Affairs) entitled Faster, Better, Cheaper: Open-Source Practices May Help
Improve Software Engineering. The press release describes an NSF-funded
research project. The group doing the research is
here. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 06 2003 @ 03:00 PM EST |
| IANAL - BMSI! (But My Sister Is! Unfortunately, her pupils contracted to
pinpoints when I started mentioning the SCO Vs IBM case to her - but I shall
keep trying...)
If SCO were not aware of Groklaw last week (unlikely) they
will be fully aware of it now after references from it were filed in the latest
court documents.
This means that some SCO hired para-legal will be going
through this site on a regular - probably daily - basis and noting anything
interesting. Not that this should change or challenge what anyone has to say...
in fact - this forum may be the quickest way to deliver a message to dear ol'
Darl (and coming from the farm as well, may I remind Darl that rustlers get what
rustlers deserve. Thou shalt not covert thy neighbour's cattle - nor their
source code.)
BTW - my theory about Boise is that he will be earning his
money writing up - and defending - the affidavit. I don't hold to the theory
that the man aint got no stomach for peddling the hypocrisy... he did
(successfully) defend IBM against monopoly charges in those darker days when IBM
was the "evil empire" (I wonder if MS will be able to change as much and as
radically. I even found myself recommending IBM not so long ago for the first
time in nearly two decades! The more things change the more they stay the
same...)
My 2 pence
Banjo
“There was movement at the station, for
the word had passed around
That the colt from old Regret had got
away,
And had joined the wild bush horses - he was worth a thousand
pound,
So all the cracks had gathered to the fray...”
The real
Banjo Paterson
[ Reply to This | # ]
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| Authored by: Jude on Saturday, December 06 2003 @ 04:21 PM EST |
Put on your tinfoil hat, shiny side out.
Let's pretend, for the sake of discussion, that Darl knows he doesn't have a
case against anyone, and that his sole objective is to damage Linux as much as
possible with a prolonged FUN campaign.
In this scenario, is it possible that Darl would knowingly mislead his own legal
counsel? For example, might he have told Boies that there's plenty of good
evidence against Linux, when in fact there is none?
It appears that Boies has some experience dealing with unsavory characters, and
he's not stupid. He might be smart enough to see it if he's being played for
a chump. If Boies discovered that this kind of thing was going on, what would
his likely reaction be?
[ Reply to This | # ]
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| Authored by: bobh on Saturday, December 06 2003 @ 04:46 PM EST |
| #include "ianal.h" If I understand this prediction correctly, it is that the
court will consider SCO/Caldera's long history of distributing all this code
themselves, under the GPL no less, and stop right there, since that's all we
need to settle the issue of who released the secrets, the works, or whatever
they are. SCO did it all by themselves. Noting that SCO is in business as a
professional software development company, the court would reject all arguments
from SCO about "we didn't know" or "we never noticed," and consider any such
effects a form of negligence on SCO's part for which others cannot be held
liable. End of story.
Would I be correct in assuming that any such ruling
would slam the doors on any further actions by SCO, against anyone, concerning
"copyright infringement" or any other claim, arising from the use of anything
that was ever in Caldera's linux distributions? That would be sweet, if true. [ Reply to This | # ]
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| Authored by: pooky on Saturday, December 06 2003 @ 04:51 PM EST |
Ah the threat of a copyright claim. This I think will finally let the FSF get
involved, since they hold the current set of copyrights to the Linux kernel
(don’t they?) If SCOG sues IBM (or anyone else) for copyright infringement,
might that not lead to a battle directly with the FSF as the legal copyright
holder? Perhaps this is why they have held off from this tactic until now? If
IBM get to see the full analysis of what SCOG says is theirs in the kernel, the
FSF may get to see it (along with the rest of us) and this could lead FSF to
challenge SCOGs claims.
-pooky
---
SCO FUD = Faux SCUD?[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, December 07 2003 @ 11:10 AM EST |
Slightly off-topic, but I think Groklaw readers will find it very
interesting, and *almost* on-topic:
Nasdaq Short Interest for SCOX
The above
is a link to a chart from Nasdaq.com. It show the total number of outstanding
short-sells on the market at the end of each reporting period. Short-selling is
a way for investors to make money when the price of a stock goes DOWN. A quick
glance at that chart shows that SCOX is attracting a lot more attention from
short-sellers now than they did at the beginning of the reporting
period.
And it makes sense - if you consider SCO's chances of winning
this case to not be very good, then it stands to reason that the approx
$13/share that SCO currently is going for is *WAY* overpriced. . . so unless
SCO wins the case, it has nowhere to go *BUT* down, and fast. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, December 07 2003 @ 11:56 AM EST |
Just simply out of emotional and sentimental reasons,
I'd like to correct the second last line:
s/Denex/Dynix\/ptx
;)[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, December 07 2003 @ 02:38 PM EST |
Lots of people have pointed out that the FSF doesn't hold the copyright on all
of Linux. But I'd like to point out that the FSF DOES hold copyright on some
small parts. In particular several drivers contain FSF owned code copied from
glibc and other places (which is of course fully in compliance with the
respective licenses). So FSF certainly is one of many copyright holders that
COULD sue.
[ Reply to This | # ]
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| Authored by: mickeym on Sunday, December 07 2003 @ 03:41 PM EST |
Is there a 3 year limitation on claims? This thread on /. points out that the
2.4 kernel with be that old in January:
http://slashdot.org/comments.pl?sid=84921&cid=7410770
Is that why they have been predicting a suit within that time?
mickeym[ Reply to This | # ]
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| Authored by: Anonymous on Monday, December 08 2003 @ 02:43 AM EST |
This morning I noticed several mainstream IT news outlets reporting the decision
as given by judge Kimball. Example
http://news.com.com/2100-7344_3-5114689.html?tag=nefd_top
Huh? I thought it was judge Wells. Did the mainstram press screw up this badly,
or is the decision really given in Kimball's name, even though Wells was
presiding?
[ Reply to This | # ]
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| Authored by: dwandre on Tuesday, December 09 2003 @ 12:54 AM EST |
| But will a judge decide or will a jury? Webster's analysis is great but I've
always thought that one of the reasons for hiring Boies was to get the case to
trial any which way and then try to bamboozle the jury. Juries are way more
gullible than judges (in my one jury duty experience - the judge did a post
mortem with us and allowed as much). He won't show for the hearing on getting
an extension, either - it's SCO's job to get the answers together, let them ask
for more time. But if they file the threatened complaint and Boies doesn't
show, then we'll know he has really decided the game is over and SCO is not
worth his reputation (not to mention the other problems he has in Florida). [ Reply to This | # ]
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