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The Protective Order |
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Saturday, December 13 2003 @ 11:58 PM EST
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Here is the Protective Order the various parties were talking about at the oral arguments in the SCO v. IBM lawsuit on Friday the 5th. Thanks to Thomas Frayne for transcribing it. You can read the legal definition of 'protective order' here. Sometimes persons who are not parties to a lawsuit, typically the press, feel they have an interest in contesting a protective order. Here is an example of an instance where tons of folks opposed a motion for a protective order to close depositions and bar Internet posting of testimony in Universal v. Reimerdes. In that case, the court worked out a way to allow the public to have access to the information after a few days and to post it online, although the media was not allowed to be present during the depositions: "THE COURT: Let's leave it this way: the nonconfidential portions of the videotapes, the nondesignated portions, will become public at the end of the period we are designating "Confidential" under the protective order, three days in the case of Attaway, Eisner and Valenti, ten days in the case of others, unless an application is made to me within that time period as to a nonconfidential portion of the videotape, in which case it remains nonpublic until I rule, which will be promptly."
While you can contest, truly confidential material is going to be protected. At the same time, the public has a right to access to the courts. It's up to the judge, after hearing the parties, to decide what qualifies for a protective order and where to draw the line. I have been puzzling over why McBride would want to paint the Linux community as outlaws, zealots, criminals, and jailbirds. It's deeply insulting and also deeply puzzling. I think I might have it figured out. I had a Eureka moment when I read the motion in the MPAA v. 2600 case. I was looking for an example of a protective order to show you, so you'd see how the process plays out during a contest, and I remembered that issue came up in that case. Here is what the motion argued constituted "good cause" for the entry of a protective order: "Public dissemination of the deposition materials would be harmful to the deponents themselves, the discovery process, and to plaintiffs. Indeed, since plaintiffs filed this lawsuit and the Court entered its preliminary injunction order, the MPAA has been barraged with harassing, profane, threatening . . .e-mail messages, evidently in response to (retaliation for) plaintiffs' attempt to enforce their rights against defendants under the Digital Millennium Copyright Act. . . . The public dissemination of information from deposition transcripts, especially over the Internet, will only serve to facilitate further harassment of plaintiffs, their witnesses, and other persons who may be identified during the depositions, and to facilitate efforts to compromise and defeat plaintiffs' anti-piracy activities."
Does it seem possible SCO might try something similar, to collect examples of any strong language or threatening-sounding emails and comments -- or have friendly journalists collect them for them and write articles based on them -- to attach as exhibits to support just such a motion?
My Eureka moment included understanding something about the very first troll on Groklaw. I'm not sure if troll is quite the right word, but here is what happened. Way back when Groklaw was new, still a blog, we had someone show up who at first made pro-SCO remarks. He was either politely ignored or long, sincere explanations would be offered. Then he started telling us that he had seen the light, thanks to Groklaw, and he began making anti-SCO comments. I posted friendly warnings, asking him to tone things down. The blogging software I was using then didn't have the ability to delete comments, as far as I knew, so all I could do was request compliance. He said he would be more careful. One day I noticed he seemed to be trying to whip up anti-SCO feelings again, and this time he asked everybody to write to SCO, by certified letter no less, telling them what "we" thought of them. At that point, I posted a comment fast, saying I hoped no one listened to any such suggestion and that in my view, no one should do anything in a legal situation without the advice of an attorney. I also told him that I knew he was a Salt Lake City resident and asked him if he was connected to SCO. I can't remember his answer word for word, except he said something about Salt Lake City being a big place, and it was meant as a denial. But I wondered if he was an agent provocateur. That was the last time he posted on the blog. Anyway, when I read the motion, it all fell into place. My Eureka moment. Time will tell if I'm on target or not.
It isn't just the media that can contest a protective order, by the way. The parties can too. IBM can contest as the lawsuit moves along. I don't know what the media or other interested parties will do in this case, only what they could do. With that introduction, here is the Protective Order in the SCO v. IBM case.
SNELL & WILMER LLP
Alan L.Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
Thomas G. Rafferty (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT OF UTAH
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
-against-
INTERNATIONAL BUSINESS MACHINES CORPORATION
Defendant/Counterclaim-Plaintiff
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STIPULATED PROTECTIVE ORDER
Civil No. 2:03cv0294
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
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Whereas, the parties in the above-captioned action (the "Action") believe that discovery
may involve the disclosure of confidential, trade secret, proprietary, technical, scientific, business,
or financial information of a party or of a non-party;
Whereas, the parties desire to establish a mechanism to protect the disclosure of such
information in this Action; and
Whereas, the Court, mindful both of the parties' interest in maintaining the confidentiality
of sensitive information and of the public's interest in public access to the courts, wishes to
manage this Action efficiently.
Therefore, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, IT IS HEREBY ORDERED THAT:
1. Definitions: For purposes of this Protective Order, the following definitions
shall apply:
A. The term "DOCUMENT" shall include any writings, drawings, graphs, charts, photographs, phonorecords, records, exhibits, reports, samples, transcripts, oral testimony, video or audio recordings, affidavits, briefs, summaries, notes, abstracts, drawings, company records and reports, databases, version control systems, communications, letters, correspondence, e-mails and attachments thereto, source code and object code, answers to interrogatories, responses to requests for admissions, or motions, and/or any other document or thing which may be delivered from or on behalf of a Disclosing Party to another in connection with the Action including, without limitation, copies, or information stored on any storage device or computer.
B. The term "DISCLOSING PARTY" is defined herein as any party or nonparty who is requested to produce or produces DOCUMENTS or testimony through discovery in this Action.
C. The term "CONFIDENTIAL INFORMATION" is defined herein as
information or DOCUMENTS or other materials that the DISCLOSING PARTY in good
faith believes is not publicly known that would be valuable to third parties,
including but not limited to the DISCLOSING PARTY'S actual and potential
competitors, and that the DISCLOSING PARTY would not normally reveal, and has
not revealed, to third parties without an agreement to maintain it in
confidence.
D. "CONFIDENTIALITY LEGEND" is defined herein as a label placed upon material that contains CONFIDENTIAL INFORMATION and clearly designates the information as "CONFIDENTIAL", pursuant to the provisions of this Order. Such CONFIDENTIALITY LEGEND and any other mark or version control number (e.g., Bates number) added to DOCUMENTS shall not obscure or deface any information contained within the DOCUMENT.
E. "COURT" is defined herein as encompassing the trial court that issued this Order and any appellate court that hear this Action on appeal.
F. "SUPPORT STAFF" is defined herein as employees and independent contractors of counsel for the parties including experts or consultants and their staff retained by such counsel to assist in this Action, paralegals, clerical personnel and secretarial personnel, and employees of the parties specifically assigned to support counsel in this Action so long as those employed sign a declaration and acknowledgment in the form attached hereto as Exhibit A. Upon written request, counsel will provide copies of the declaration and acknowledgments signed by employees of the parties specifically assigned to support counsel in this Action.
G. "LITIGATION SUPPORT SERVICES" is defined herein as encompassing copy services, documents production services, exhibit-making services, translation services, coding services, scanning services, animation services, jury consultants and mock jurors.
2. Applicability of this Order: All CONFIDENTIAL INFORMATION, and all copies,
excerpts and summaries thereof and material containing information derived
therefrom, filed with the Court, submitted to the Court in connection with a
hearing or trial, or produced or served either by a party or by a non-party, to
or for any of the other parties, shall be governed by this Protective Order and
used only for the purposes of this Action and not for any other purpose
or function, including without limitation any business, patent prosecution,
competitive or governmental purpose or function. No person who prosecutes
patents relating to the technology claimed in the patents in suit shall have
access to CONFIDENTIAL INFORMATION. The terms of this Protective Order shall
apply to all manner and means of discovery, including without limitation oral
testimony, entry onto land or premises, and production and/or inspection of
books, records, DOCUMENTS and tangible things.
3. Designating Information: If, in the course of this Action, a DISCLOSING PARTY
discloses information that the DISCLOSING PARTY in good faith contends is
CONFIDENTIAL INFORMATION, that DISCLOSING PARTY may designate such information
as such by applying to the material that contains the information the
CONFIDENTIALITY LEGEND, which shall read "CONFIDENTIAL".
A. If any CONFIDENTIAL INFORMATION cannot be labeled with the
CONFIDENTIALITY LEGEND, it shall be placed in a sealed envelope or other container that is
in turn marked "CONFIDENTIAL" in a manner agreed upon by the disclosing and requesting
parties.
B. Initial Inspections of Materials: In the event materials are to be subject to
an initial inspection, e.g., in order for the requesting party to decide whether to copy all or only
parts of a production, the materials shall be treated as containing CONFIDENTIAL
INFORMATION for purposes of the initial inspection, thereby limiting those who may conduct
such an initial inspection to those permitted by Section 4 to view CONFIDENTIAL
INFORMATION. After the initial inspection, the DISCLOSING PARTY may, if appropriate,
prior to or contemporaneously with the copying of the materials, designate the inspected materials
as CONFIDENTIAL INFORMATION.
C. Inspections of Property, etc.: If a DISCLOSING PARTY believes in
good faith that the inspection, measuring, testing, sampling, or photographing of its processes,
products, equipment, premises, or other property, pursuant to Federal Rule of Civil Procedure 34,
will reveal or disclose CONFIDENTIAL INFORMATION, then the DISCLOSING PARTY shall
advise the requesting party that the inspection, measuring, testing, sampling, or photographing will
be permitted only on a CONFIDENTIAL INFORMATION basis. In such an event, the
inspection, measuring, testing, sampling, or photographing may only be performed by those
permitted to have access to CONFIDENTIAL INFORMATION, under this Order, and
information derived from such activities shall be treated as CONFIDENTIAL INFORMATION.
D. Depositions: Counsel for the deponent or for a party may designate any part
or all of a deposition as confidential by notifying all counsel of record prior
to or during the deposition of the confidentiality designation. If a deposition
concerns CONFIDENTIAL INFORMATION, counsel for the deponent or for a party shall
have the right to exclude from the portion of the deposition concerning such
information any person not authorized to have access to CONFIDENTIAL INFORMATION
under this Protective Order. A party designating a portion of the testimony as
CONFIDENTIAL INFORMATION may also request that the affected portions be bound
separately from the rest of the transcript. In accordance with Section 14 of
this Protective Order the non-designating party may request that the designating
party review a particular designation, in which event the designating party
shall review the designation in question and shall have the option of changing
it and shall give notice to the other party in writing if a change is made.
E. Deposition Exhibits: An exhibit to a deposition shall be treated in
accordance with the confidentiality designation already given to it or, if the
exhibit has not been previously produced, given to it on the record at the time
of the deposition. The designation of a deposition as CONFIDENTIAL INFORMATION
or the de-designation of a deposition from CONFIDENTIAL INFORMATION shall not
affect the confidentiality status of exhibits presented at the deposition.
F. Inadvertent Failure to Designate: If a party to this Order inadvertently
fails to designate information as CONFIDENTIAL INFORMATION such failure shall not
constitute a waiver of the DISCLOSING PARTY'S right to so designate such information. In the
event that such an inadvertent failure occurs, the DISCLOSING PARTY shall upon discovery of
the inadvertent failure promptly notify in writing all parties known to have received the
information in question, and provide them with appropriately marked substitute copies of the
affected information. Until a receiving party receives such notification, any disclosure made by
that party of the information to those not permitted by this Order to have access to the information
shall not constitute a violation of this Order. However, upon receiving such notification, the
receiving party shall request all parties to whom the information was disclosed by the receiving
party but who are not permitted to have access to such information under the terms of this Order to
return the information to the DISCLOSING PARTY. The receiving party shall also destroy all
copies of the incorrectly labeled information and replace them with the substitute copies provided
by the DISCLOSING PARTY.
4. Persons Permitted to Access Confidential Information: Access to information that
has been designated as CONFIDENTIAL INFORMATION shall be limited to the
following persons:
A. The Court, and its support staff and other authorized Court personnel, and
jurors and alternate jurors, if any;
B. Counsel (in-house and outside) for the parties to this Action and their
SUPPORT STAFF;
C. Stenographers and videographers who take, record or transcribe testimony in
this Action, either at deposition or at a hearing or trial, to the extent
necessary to carry out their services;
D. LITIGATION SUPPORT SERVICES, as defined in Section 1, to the extent necessary
to carry out their services [sic]
E. Any individual who previously had rightful access to the CONFIDENTIAL
INFORMATION in question, as authorized by the DISCLOSING PARTY, in the form that
the CONFIDENTIAL INFORMATION was produced by the DISCLOSING PARTY, in the
ordinary course of business or employment, so long as the provision of
CONFIDENTIAL INFORMATION under this paragraph is subject to the same limits set
forth in paragraph 4.F;
F. A witness in the above-captioned case not otherwise authorized to view the
CONFIDENTIAL INFORMATION in question, during that witness' testimony at a deposition,
hearing, or trial in the above-captioned case, provided that: (1) the disclosure is made solely for
the purpose of directly advancing the questioning party's claims or defenses, and for no other
purposes whatsoever; (2) counsel for the questioning party endeavors in good faith to redact or
handle the CONFIDENTIAL INFORMATION in such a manner as to disclose no more
confidential information as is reasonably necessary in order to examine the witness; (3) the
witness is not permitted to retain the CONFIDENTIAL INFORMATION after the witness is
examined regarding the CONFIDENTIAL INFORMATION; and (4) the witness is explicitly
informed that this Protective Order forbids him or her to disclose the CONFIDENTIAL
INFORMATION except as permitted under this Protective Order and that he or she is subject to
the Court's jurisdiction for the purposes of enforcing this Protective Order, and the witness signs
the Declaration and Acknowledgement form that is attached hereto as Exhibit A. A deposition
witness may review the entire deposition transcript and exhibits thereto in order to review and sign
pursuant to Fed. R. Civ. P. 30(e); however, the DISCLOSING PARTY may object to the deponent
further reviewing a CONFIDENTIAL deposition exhibit. If such an objection is raised, any party
may seek relief from the Court, and the disclosure may not be made until the Court rules or the
DISCLOSING PARTY withdraws its objection;
G. A witness whose testimony at deposition, hearing, or trial has been formally
noticed (but who is not otherwise authorized to view CONFIDENTIAL INFORMATION),
provided that (1) the disclosure is made solely for the purpose of preparing the witness to testify;
(2) the party that intends to make the disclosure provides written notice to the DISCLOSING
PARTY, at least five business days in advance of the disclosure, specifying the documents to be
disclosed and the person to whom the disclosure is to be made; and (3) the DISCLOSING PARTY
has not objected, in writing, within five business days of receiving the notice of intended
disclosure. If the DISCLOSING PARTY does object, any party may seek relief from the Court,
and the disclosure may not be made until the Court rules or the DISCLOSING PARTY withdraws
its objection;
H. Other persons to whom the Court specifically allows disclosure, after
application by the party seeking such disclosure and an opportunity to reply by the DISCLOSING
PARTY OR PARTIES; and
I. Other persons to whom the DISCLOSING PARTY specifically and in
writing allows disclosure.
5. Storage and Custody: Counsel for each party to this Protective Order shall use
the same care and discretion to avoid disclosure of CONFIDENTIAL INFORMATION as the
receiving party uses with its own similar information that it does not wish to disclose to prevent
the unauthorized or inadvertent disclosure of any information designated as CONFIDENTIAL
INFORMATION under this Protective Order.
6. Filing Under Seal: Any information designated as CONFIDENTIAL
INFORMATION that is included with, or its contents are in any way disclosed in, any pleading,
motion, deposition transcript, or other papers filed with the Clerk of the Court shall be filed in
sealed envelopes, or other appropriately sealed containers, prominently marked with the following
notations:
A. The style of the Action and case number (Civil No. 2:03CV-0294 DAK);
B. The name of the filing party;
C. An indication of the filing's contents, such as the title of the filing; and
D. A statement substantially similar to the following:
CONFIDENTIAL INFORMATION - SUBJECT TO COURT ORDER THIS ENVELOPE
SHALL NOT TO BE OPENED AND THE CONTENTS SHALL NOT BE DISPLAYED,
COPIED OR REVEALED EXCEPT BY COURT ORDER OR BY THE WRITTEN
AGREEMENT OF THE PARTIES.
7. No Summaries: CONFIDENTIAL INFORMATION shall not be disclosed or
summarized, either in writing or orally, to anyone other than persons permitted to have access to
such information under this Order. Notwithstanding the foregoing, nothing in this Order prohibits
counsel for either party from advising their respective clients of the presence or absence of
evidence supporting or refuting the claims or defenses in this Action.
8. Challenging a Designation: At any time, a party to this Order may challenge
the designation of information as CONFIDENTIAL INFORMATION by notifying the
DISCLOSING PARTY in writing of the information that the challenging party in
good faith believes should not have been given a designation of CONFIDENTIAL
INFORMATION. The parties shall then confer within five (5) business days to try
to resolve the matter, and if unable to resolve the matter, may thereafter seek
the Court's assistance. The burden of proof shall be on the DISCLOSING PARTY to
show that the designation is appropriate under this Order. Until the matter is
resolved by the parties or the Court, the information in question shall continue
to be treated according to its designation under the terms of this Order. By
failing to object to the designation of information upon its production, a party
does not waive its right to object at a future time to that designation.
9. Designation by Non-Parties: A non-party to this Action that produces
information to any party to this Action in connection with this Action, whether or not pursuant to a
subpoena, may avail itself of the protections afforded by this Order, by placing a
CONFIDENTIALITY LEGEND on such information.
10. Confidentiality Interests of Third Parties: A party may refuse to produce
otherwise discoverable information pursuant to a subpoena, deposition question, or discovery
request, if the party is under an obligation to a third party not to disclose such information. In
such an event, the objecting party shall:
A. Promptly provide to the person or entity whose confidentiality interests are
implicated (i) notice of its intention to disclose the information in question and (ii) a copy of this
Order; and
B. Within thirty (30) business days of the notice sent pursuant to (A), produce
the requested information in question in compliance with this Order, unless the request is
otherwise objectionable, or the person or entity whose confidentiality interests are implicated
moves for or obtains a protective order precluding such disclosure from this Court within that
time.
11. No Waiver of Rights: This Order shall not be deemed (a) a waiver of any
party's or producing entity's right to object to any discovery requests on any
ground; (b) a waiver of any party's right to seek an order compelling discovery
with respect to any discovery requests; (c) a waiver of any party's right to
object to the admission of evidence on any ground; (d) a waiver of any party's
or producing entity's right to use its own DOCUMENTS, testimony, transcripts,
and/or other materials or things within its own discretion; (e) any waiver of
the attorney-client privilege or protection of the work product doctrine; or (f)
a waiver of any party's right to seek additional protection for certain
materials or information. In the event that either party seeks such additional
protection, that party shall first confer with the opposing party to reach
agreement with respect to such additional protection. If the parties are unable
to reach agreement, the party seeking such additional protection shall, within
10 business days after the parties have conferred and failed to reach agreement,
file a motion or application with this Court for an additional Protective
Order.
12. Disclosure Beyond the Terms of this Order: Nothing shall prevent disclosure
beyond the terms of this Protective Order if the party designating the
information as CONFIDENTIAL INFORMATION consents to such disclosure in writing
or on the record, or if the Court, after notice to all affected parties, orders
such disclosure.
13. Inadvertent Disclosure: Should any designated information be disclosed,
through inadvertence or otherwise, to any person or party in violation of this
Order, then the party responsible for the inadvertent disclosure shall use
reasonable efforts to bind such person to the terms of this Order, and shall (a)
promptly inform such person of all the provisions of this Order, (b) request
such person to sign the Declaration and Acknowledgement (attached hereto as
Exhibit A), (and, if such person does not agree to sign the Declaration and
Acknowledgement, use reasonable efforts to retrieve the designated information
promptly); and (c) identify such person immediately to the DISCLOSING PARTY that
designated the document as CONFIDENTIAL INFORMATION. The executed agreement
shall promptly be served upon the DISCLOSING
PARTY.
14. Disclosure of a Party's Own Information: The terms of this Order shall in
no way restrict a DISCLOSING PARTY'S right to reveal or disclose to anyone any
DOCUMENTS or information designated by that party as CONFIDENTIAL INFORMATION.
15. Final Disposition: Unless counsel agree otherwise in writing, within sixty (60)
calendar days of the final disposition of this Action, the attorneys for the parties and experts and
consultants shall return promptly, to the DISCLOSING PARTY or witness from whom they were
obtained, all DOCUMENTS, other than attorney work-product, that have been designated
CONFIDENTIAL INFORMATION or certify in writing that they have destroyed or deleted the
same, including all DOCUMENTS or copies provided by a receiving party to any other person
and all copies made thereof. Notwithstanding the foregoing, outside counsel for the parties shall
be permitted to retain one copy of (1) materials created during the course of the Action, including
attorney annotations and other work product; (2) work product of non-testifying
consultants/experts; (3) materials made part of the Court record, or which have been filed under
seal with the Clerk of the Court; (4) all depositions and Court transcripts, including exhibits; and
(5) summaries of depositions. Such file copies must be maintained subject to the terms of this
Order. Use of CONFIDENTIAL INFORMATION at Trial: If a trial is scheduled, the parties
shall confer in good faith to determine a method for introducing at trial material which has been
designated as "Confidential." The parties shall submit their proposed method to the Court for
approval. At trial, no party, witness or attorney shall refer in the presence of the jury to this
Protective Order or to any confidentiality designation made pursuant to this Order unless the Court
first provides the jury with a brief explanation of the nature and purpose of the Order. In no event
shall any party, witness or attorney argue or suggest in the presence of the jury that a
DISCLOSING PARTY acted wrongfully in designating material as CONFIDENTIAL.
16. Modification, Relief and Retention of Jurisdiction: This Order will remain in
full force and effect unless modified by an order of the Court or by the written stipulation of the
parties hereto filed with the Court. The parties to this Action reserve all rights to apply to the
Court at any time, before or after termination of this Action, for an order: (i) modifying this
Protective Order, (ii) seeking further protection against discovery or use of designated
information, or (iii) seeking further production, discovery, disclosure, or use of claimed designated
information or other DOCUMENTS or information in this Action. Without limiting the
foregoing, this Order survives and remains in full force and effect, and this Court shall retain
jurisdiction to enforce all provisions of this Order, after termination of this Action.
17. No Liability for Innocent Disclosures: It is understood that no person or party
shall incur liability with respect to any disclosure by the receiving party of CONFIDENTIAL
INFORMATION that was inadvertently disclosed without proper designation by the
DISCLOSING PARTY, provided the disclosure by the receiving party occurred prior to the
receipt by the receiving party of a notice of the inadvertent disclosure without proper designation.
18. No Effect on Other Litigation: The existence or nonexistence of a designation
under this Protective Order shall have no effect or bearing on any other litigation.
19. No Admissions: Unless the parties stipulate otherwise, the designation or
acceptance of any information designated pursuant to this Protective Order shall not constitute an
admission or acknowledgment that the material so designated is in fact proprietary, confidential or
a trade secret.
20. No Effect on Existing Confidentiality Restrictions: A designation of
CONFIDENTIAL INFORMATION under this Protective Order shall have no effect on existing
confidentiality restrictions governing information previously exchanged between the Parties,[sic]
Existing confidentiality restrictions, if any, that govern use and/or disclosure of information
previously exchanged between the parties shall take precedence over this Protective Order when
the terms of the former are less restrictive than those of the latter.
STIPULATION
Dated: September 15, 2003
HATCH, JAMES & DODGE, P.C.
By [signature of Hatch]
A member of the Firm
Attorneys for The SCO Group
[address]
SNELL & WILMER L.L.P.
By [signature]
A member of the Firm
Attorneys for International
Business Machines Corporation
[address]
ORDER
Dated: September 16, 2003
[signed by Dale A. Kimball]
United States District Court Judge
Exhibits/
Attachments to this document have not been scanned.
Please see the case file.
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Authored by: mojotoad on Sunday, December 14 2003 @ 02:48 AM EST |
I'm curious -- wouldn't it be tough to come up with a legally cohesive
definition of the "FOSS community" in a court of law? Or is it a situation where
a single bad apple can spoil the batch?
Looking through the other end of the
telescope, companies might feel free to paint "Linux supporters" or the FOSS
community (such as it is) with a tar brush with zero expectation of slander or
libel suits, so long as they named no specific individuals.
Given that the
inherent loosly-cohesive nature of the so-called "FOSS community" can be used as
a tactical shield against slander or libel, why should the reverse be applicable
in the granting of a protective order?
My questions are purely for
legal/practical edification.
Matt
[ Reply to This | # ]
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Authored by: smtnet1 on Sunday, December 14 2003 @ 02:59 AM EST |
If SCO provide details of "copied code" in the Linux kernel, I
presume that they will mark this confidential because their
"licensing" scheme relies on being able to threaten Linux users with
being sued, but not indicating exactly what the code is that SCO allegedly own.
The Linux kernel is already fully open to public view, so any SCO code in the
kernel could hardly be claimed to be confidential. We could all trace the
origins of any alleged copied code to its source to test the validity of any SCO
claims, which obviously SCO do not want.
Is there an argument for the SCO discovery of copied code to be made public
since it is already public.I am only talking about the Linux kernel code, not
the System 5 / Unixware code. Even the file name and line numbers would be
enough
[ Reply to This | # ]
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Authored by: Jack Hughes on Sunday, December 14 2003 @ 03:10 AM EST |
Assuming that SCO Group do identify code in Linux by
version, file and line, it seems reasonable that the
people that actually wrote the code (or submitted the code
for inclusion) have a chance to offer an explanation of
the provenence of that code.
The only way for this to occur is for this information to
be made public.
Maybe OSDL can challenge the order - and the information
posted to LKML - which is the only method of communicating
with the developers. [ Reply to This | # ]
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Authored by: error27 on Sunday, December 14 2003 @ 03:42 AM EST |
Do you remember the trolls username or any other details. It would be helpful
to know if the troll really was a SCO employee or using SCO computers etc.
We could find that out from the IP address perhaps.
I have been trolled by someone from a "news organization" before and
it's upsetting...
[ Reply to This | # ]
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Authored by: RSC on Sunday, December 14 2003 @ 03:45 AM EST |
I have asked this before, and I think it is again a valid question.
If IBM was to submit a patch that included replacement or removed the offending
code from the said files. What sort of trouble would they be in?.
In this senario they would not be directly releasing the "protected"
code, but you would be able to figure it out.
RSC.
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An Australian who IS interested.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 14 2003 @ 03:54 AM EST |
"C. The term "CONFIDENTIAL INFORMATION" is defined herein as
information or DOCUMENTS or other materials that the DISCLOSING PARTY in good
faith believes is not publicly known that would be valuable to third parties,
including but not limited to the DISCLOSING PARTY'S actual and potential
competitors, and that the DISCLOSING PARTY would not normally reveal, and has
not revealed, to third parties without an agreement to maintain it in
confidence."
Hmm, could this be one of the reasons for SCO's NDA's?
SCO's identification of "infringing" Linux code pretty closely fits
this definition. It's not publicly known, it retains value to the extent that
other people would like to know it, and SCO has not normally revealed it to
third parties without an NDA, except for Laura Didio of course, who has admitted
that she wasn't required to sign it.
On the other hand, it's all open sourced, so I don't think they're going to
be able to keep it private. Oh, they'll try. That's one of the upcoming delay
tactics, forcing IBM to file briefs arguing that some of the discovery materials
marked confidential by SCO shouldn't be.
That's assuming they last that long. I've got a feeling that SCO might
self-implode within the next 3 months or so. Being forced to specify their
complaints against IBM will be very uncomfortable for them, especially if they
appeal to Judge Kimball and he denies the appeal.
I believe SCO does intend to appeal. I found it very interesting that Kevin used
the word "dispositive" in his argument to Judge Wells.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 14 2003 @ 04:21 AM EST |
I believe IBM should challenge the confidentiality of everything they can to get
as much community support as possible. The list needs:
1- The list of
stuff that should be made public
2- Arguments the court world accept in
favour of publication
3- What can be achived once it is public
On
the three elements, no 2 is probably the most important to make publication
happen, although no 3 is probably necessary to motivate IBM to
act.
Based on previous posts, the list we have so far would
be:
A) Several posters including Thomas Frayne and Jude suggested that
any Linux code SCOG claims to own should be disclosed by file and line numbers.
The nature of the right SCOG is claiming and the fact that SCO did or did not
distributed this code should be disclosed as
well.
Argument:
Linux is already public
SCO has a duty to
mitigate damages bay allowing the code to be removed.
The existence of a
right that encumbers published code should not be a secret.
Previous
distribution by SCOG are not secrets.
Advantages:
The public
would be able to verify by itself SCO's claim.
Damages to IBM and Linux
would be reduced.
B) An anonymous poster suggested the
following:
"1) Names of anybody they claim has
knowledge of
specifics, if those people made
*any* (even unrelated to their work)
Linux
contributions, so that those could be
examined to see if they used
similar
techniques in other code that was put under
GPL. If any of those
people are
current kernel list participants, they should
be put under
heavier scrutiny (if
that's possible: current review process
is
solid)."
"2) Names of the companies that
purchased SCO licenses,
who was involved in the
conversations, and copies of
materials given to
them, INCLUDING THE LICENSE, so
the community can decide about taking
legal
action against those companies for
copyright infringement. The
community
should be careful with this: if Hill and
Valley Skunkworks (i.e., a small
or
unsophisticated company) was misled because
of SCO FUD, then nothing
should be
done (except a lot of sympathy letters). If,
on the other hand,
it was Microsoft
or similar, the gloves should come off."
"3) Names of
the companies they
contacted about licenses (the
"1,500"), so that they can
be
contacted with *correct* data (i.e.,
the community should have a chance
to
set the record straight)."
"4) Records related to discussions
with
Canopy Group or CG companies (meeting
notes, etc.), so it can be
determined
if Canopy is acting as a funnel to pour
GPL information between
their
companies (as some have noted here, examples would
be Lineo and maybe
others), and the
nature of those transfers."
A lot of material is
asked there. But this is not detailed in the argument to the court area. As a
previous poster has said, anything from the LKML should be public, so some of
the material is already public and should not be deemed
confidential.
C) Another anonymous poster suggested the
following
"I doubt we'll get it, but we really
need the relevant
parts of the SysV code
for comparison, at least where SCO is
claiming
verbatim copying, or asserting
rights in code contributed by parties
other
than IBM. IBM has, or will get, the
SysV code regardless, so the
protective
order isn't such a big issue for them.
Without SCO's code, we just have
to
trust SCO when they claim that their code is identical to code in Linux.
I
don't trust them. Also need the development
history for these sections of
code,
so that if code really is identical, we can
figure out who had it
first, Linux or
SCO. As of Friday, SCO claimed that there
are no trade
secrets in SysV, and any
copyrights they legitimately own will not
be voided
by making portions of the
source available, so their only real defense
is
that they simply don't want to do
it."
Copycat provided the
following input:
"Anything that the 1992 USL/BSDI
court and/or
settlement found to be not
copyrighted by ATT should be
disclosed."
And in a later post he added:
"Correction: I
meant all BSD4.4-Lite
(1994) code. That's not quite teh same, but
still
means that what Novell sold or
licensed had limits (the 1994
Settlement)
beyond the written Asset Purchase
Agreement and its
Amendments."
This one is truly amazing. The confidentiality of
System V is at the
heart of the disputed contractual obligations. If SCO is
unable to prove
a need for confidentiality of its source System V code
during
discovery, how could they argue in a trial that derivative works
they
don't own should be confidential? Even if they dare argue that, would
that
be an impact on the damages they are able to collect? However this
suggestion
should be made as strong as possible in the arguments to the
cour area. I can
think of these ones (including the arguments provided
by the
posters):
- All major vendors already own a license
- Thousands of
private individuals have a license
- Previous versions (32V) and BSD4.4-Lite
are public
- Much of the code was found not to be confidential in the
1992
USL/BSDI court and/or settlement
- There are no trade secrets in
System V dixit SCO's lawyer
- The code is old and obsolete - any remaining
secrets (that don't
exist) would not have any value
- There would be no harm
doe to SCO as their copyrights would still be
protected
- Publication is of
public interest because it enable the public to
verify the extent of SCO's
actual rights
- Prospective buyers of SCO's IP for Linux licenses would be
able to
verify what IP they are purchasing
- Linux users and entreprises
have been treathened by SCO based on
SCO's IP in Linux
This is what we
have so far. There are certainlly a number of posts
that escaped me. I apologise
in advance to their posters for the lack of
credits.[ Reply to This | # ]
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Authored by: PolR on Sunday, December 14 2003 @ 05:09 AM EST |
Way back when Groklaw was new, still a blog
Am
I the only one to think the blog format does not cope well with the volume
information that is now available in Groklaw? The blog was a good idea in the
beginnings but we have outgrown the capability of this format. All the attention
goes to the recent information. It is difficult to make use of good comments
buried in article written this summer. Perhaps good linkages are missed because
the relevant information have exited our attention span. Past information is
difficult to find and use because it is not organised and indexed.
Perhaps
it would be worthwile to add some Wiki function to Groklaw. Don't know how it
can be done though. That would enable community manage by topic index pages a la
Wikipedia. Subject matter experts in Groklaw may also write summary digest pages
of what have been found so far on important topics, compilations of gathered
evidence etc. The mere act of reviewing and editing Wiki pages would probably
help make new connections that may be now missed. Condensed easily referenced
evidence can be included in court documents as a simple html link. We would
extract more from the available info.
It would be useful to have HTML
addressable comments for the Wiki environment. It would help to have a list of
recent comments, regardless of the article they are atteched to. This would
allow everyone to see what is new even if it attached to old topics. That would
allow to make more visible information scattered to various article just because
the poster wants to make sure he wants to be read. Stock information comes to
mind. [ Reply to This | # ]
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Authored by: Jude on Sunday, December 14 2003 @ 05:46 AM EST |
I don't see how SCO could legally prevent IBM from consulting with the Linux
developers regarding the provenance of any code that SCO identifies.
That would be like someone suing me for patent infringment in an automobile that
I purchased, but not allowing me to consult the automobile manufacturer
regarding the claims. The manufacturer might very well be aware of the patents
at issue, and have a ready explanation of why their product is not infringing.
I cannot properly defend myself if I am denied access to that material.
[ Reply to This | # ]
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Authored by: fjaffe on Sunday, December 14 2003 @ 08:18 AM EST |
The protective order does not appear to allow third parties to challenge the
designation of CONFIDENTIAL INFORMATION.8. Challenging a
Designation: At any time, a party to this Order may challenge the designation of
information as CONFIDENTIAL INFORMATION by notifying the DISCLOSING PARTY in
writing of the information that the challenging party in good faith believes
should not have been given a designation of CONFIDENTIAL
INFORMATION. Can Groklaw, or other media outlets, submit a brief
to the court arguing that certain information should not be considered
confidential for purposes of the protective order? Even though PJ doesn't get
paid, what is Groklaw if not "media"?If we can, and PJ wants us to, then
perhaps we can go through the IBM Interrogatories and Document requests, and
identify those which we feel would be most valuable to prevent being considered
confidential. In particular, and without limitation, Interrogatories 12 &
13, which ask SCO to identify everything in Linux to which they claim
proprietary rights, the nature of those rights, and how it got there, would seem
to be pretty important to know. At the risk of YASD (yet another slash
dotting), we could do it in the form of a signed pettition. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 14 2003 @ 09:43 AM EST |
I think the protective order is for the source code in Dynix/ptx, AIX, and
Unixware.
The SCO Group needs to divorce themselves from the notion that Owners of GPL'd
copies of their Caldera Linux products (like myself) want to be "held
harmless". I want to be made whole. They are making unfounded proprietary
claims, and asserting a confidentiality obligation to their other software
licensees where none legally exists. They are using that "legal
fiction" as a pretext to harm me, and others just like me.
Counsel for the SCO Group has already stated for the record that there are no
trade secrets in System V, that key point was never conceded in USL v BSDi. They
have also admitted that IBM owns the copyrights in their derivative code. They
have further stated that when they brought this case, they were unaware of any
instances of specifically infringing code which IBM has contributed to the Linux
kernel.
There is no new exciting intersection of copyright, trade secret, or contract
law here. There is just flim-flam.
The Courts have uniformly agreed that an unprotected disclosure of secret
know-how terminates its trade secret status. See Egbert v. Lippmann, 104 U.S.
333 (1881) where the Court held that unrestricted disclosure of an invention to
one person was public use of the invention under the applicable patent law. See
also Videotronics, Inc. v. Bend Electronics, 564 F. Supp. 1471, 1475 (D. Nev.
1983) which held that public disclosure of trade secret destroys basis of trade
secret protection.
IBM owns the patents on many of these so called "Unixware" trade
secrets. IBM has licensed those for use in GPL'd software. What about any
unpatented trade secret Unixware code? The SCO Group have distributed the
infringing source code themselves under their own Caldera licenses. It's hard
to see how they can ask for state law protection now against their own
customers, or other Linux users. The Supreme Court has held that the States
can't offer any such protection: "Even under a pragmatic approach to the
scope of federal pre-emption, under the Federal Constitution's supremacy clause
(Art VI, cl 2), the states may not offer patent-like protection to intellectual
creations which would otherwise remain unprotected as a matter of federal law,
because (1) the efficient operation of the federal patent system depends upon a
substantially free trade in publicly known, unpatented design and utilitarian
conceptions, so that ideas once placed before the public without the protection
of a valid patent are subject to appropriation without significant restraint;
(2) both the novelty and nonobviousness requirements of federal patent law (35
USCS 102, 103) are grounded in the notion that concepts within the public grasp,
or those so obvious that they could readily be, (a) are the tools of creation
available to all, and (b) provide the baseline of free competition upon which
the patent system's incentive to creative effort depends; (3) a state law that
substantially interferes with the enjoyment of an unpatented utilitarian or
design conception which has been freely disclosed by its author to the public at
large impermissibly contravenes the ultimate goal of public disclosure and use
which is the centerpiece of federal patent policy; and (4) through the creation
of patent-like rights, the states could essentially redirect inventive efforts
away from the careful criteria of patentability developed by Congress over 200
years. Bontio Boat v Thunder Craft Boat No. 87-1346 Supreme Court of the United
States.
They claim that the provisions of the GPL are Unconstitutional, yet as Linus
discovered for himself, the barter for an exchange of copyright is contained in
the fundamental definition of terms in 17 USC. The SCO Group also makes the
argument that unless they are allowed to exploit the pre-existing GPL'd
software, the proprietary software industry will be harmed or destroyed. The
facts were no different in Stewart v Abend where the Supreme Court held
otherwise and stated: "In fact, this Court has held that a copyright owner
has the capacity arbitrarily to refuse to license one who seeks to exploit the
work." That means a copyright can be used as an affirmative defense
against commercial exploitation - what a wonderful (old) concept!
---
Thou shalt foreswear, renounce, and abjure the vile heresy which claimeth that
``All the world's a VAX''.[ Reply to This | # ]
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Authored by: mnuttall on Sunday, December 14 2003 @ 10:50 AM EST |
Has anyone else noticed that the agenda for the Jan 23 hearing changed
between the court transcipt and Order Granting IBM's Motions to Compel
Discovery? SCO walked away from court thinking that Jan 23 would be about their
motions to compel, but the Order suggests otherwise:
From the Court
transcript
MR. MCBRIDE: So Your Honor is not ruling
on our motions at this point in
time; is that correct?
THE COURT:
No. I'm not ruling on your motions, and that is inherent in my
order that
further discovery be postponed.
MR. MCBRIDE: Very good, Your
Honor.
THE COURT: We'll address them then.
MR.
MCBRIDE: So and we'll, in this next -- the January hearing then we
will
address the -- our pending motions as well?
THE COURT:
Yes.
MR. MCBRIDE: Thank you, Your Honor.
THE COURT:
All right. That's with the assumption that the discovery that
SCO is to complete
has been completed, all right, and with the required
specificity. So what my
intention is, then, is to then address the motions
of
SCO.
See here's what our friend Blake had to say about this:
"This
hearing was the equivalent of the coin toss at the beginning of the game," said
Blake Stowell, director of public relations with Lindon, Utah-based SCO. "IBM
won the coin toss, so we had to provide our evidence first. They will have to
provide their evidence at the start of the second half."
However, at the end of the Court Order
we read,
All other discovery, including SCO's Motion
to Compel is hereby STAYED until this Court determines that SCO has fully
complied with this Order. The Court will hold a hearing on the foregoing issues
January 23, 2004 at 10:00 a.m
So now Jan 23 is first and
foremost a hearing on SCO compliance, only after which might their Motions to
Compel get a hearing. That's quite a setback, don't you think? What happened to
Judge Well's "intention [...] to then address the motions
of SCO"? Did she
change her mind on reflection after the hearing? Interesting.
[ Reply to This | # ]
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Authored by: Thomas Frayne on Sunday, December 14 2003 @ 11:08 AM EST |
When SCO complies with the compel order, IBM will have official access to the
SysV code, subject only to the Protective Order. It can then run ESR's compare
program to determine which lines of code compare.
IBM will then know the candidates for code copied from SysV to AIX or Linux, and
the candidates for code COPIED FROM LINUX TO SYSV, but the code itself will not
occur in the output.
IBM can then ask to publish the output of the comparison. SCO might object, but
they will be hard put to show reasonable cause to keep this information
confidential when it does nothing more than satisfy their obligation to notify
possible infringers of the specifics of the infringement so that damage can be
mitigated. Their code and trade secrets will not be revealed in context, only
the Linux code, which is already public knowlege.
[ Reply to This | # ]
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Authored by: PolR on Sunday, December 14 2003 @ 01:41 PM EST |
SCO was allowed to spread its FUD precisely because they did not disclose their
claims, otherwise they would already been analysed and the community would have
been able to react appropriately. If the claims keep being confidential, they
will be able to allege infringement forever.
If the judge confirms some or all of SCO's claims as well as their
justification is confidential, she gives SCO their FUD permit. She will set a
precedent that will allow other parties to use the same tactic against Linux and
other FOSS projects at will.
If the judge confirms all of this information must be public, she implicitely
rules that SCO should have disclosed the information before and IBM goes a long
way toward winning some of their counterclaims. The precedent will have a
chilling effect on would be imitators.
IANAL. Could a lawyer type person comment this hunch?[ Reply to This | # ]
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Authored by: webster on Sunday, December 14 2003 @ 02:50 PM EST |
IBM has no need to modify the Protective order. They are not in a strong
position to do so since they will get the information. The public including the
Linux community has a strong need to know.
Representative parties, including Groklaw, must first ask the parties to consent
to disclosing all Linux code at issue. If both do not consent, they can apply
to the Court with the consent of only one or neither.
The arguments would be: 1) Both/One/Neither party consents; 2) Any Linux code
in question is already open and known to the public and under the GPL; 3) It
will not predudice IBM or SCO; 4) Disclosure willavoid damage by reducing any
infringement and shortening any wrong doing; 4) It would quicken research by
exposing code to many independent, neutral experts as well as many involved
users, owners and actual authors of code; 5) It is an opportunity to mitigate
damages; 6) Further confidentiality is confusing to the pulic, damaging and
prejudicial; 7) Public interest to eliminate fear of threats, clarify
purchasing decisions, avoid dealing with the evil monopoly.
I'm sure the IBM lawyers would find some of the above redundant, but we can not
rely on them as our champions on this issue.
So we should ask the parties and then ask the Judge.
---
webster
Recent Windows refugee[ Reply to This | # ]
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Authored by: creysoft on Sunday, December 14 2003 @ 02:56 PM EST |
Something has been nagging at me about this, so I thought I'd share it
with the group, as it were.
SCOG's twisted fantasy is to see Linux become their own, personal
plaything. Private, closed, and monetized. They say 'open source is a
great idea,' but their idea of open source is really closed source with
individuals working under constraining NDA's.
It is conceivable that SCO could shoot for the angle that, since revealing
any infringing code would be a violation of their 'Intellectual Property
Rights,' the code has to be removed by IBM in secret. Of course, after the
code was re-released, a simple DIFF would determine what had been
changed, removed, or altered, thereby violating their 'Intellectual
Property Rights.' Hence, the only way to protect their 'Intellectual
Property Rights' is to transfer ownership of Linux to SCOG (After all, it's
public domain anyway *SPITS*) and allow them to release it under binary
only licenses.
Of course, it would still be 'open source,' just sign this NDA here and
we'll give you access to the SCOGLKML where you can work to your
heart's content.
Of course, I can't think of a single shred of case law that would support
this, but since when has that ever stopped them before?
On another note, is there any case law supporting the notion that
specifying the location of public information can violate confidentiality?
I.e. Is specifying line numbers in Linux code the effective equivalent of
revealing the source code from the UnixWare tree?
Also, wouldn't it be theoretically possible for IBM to release a
combination bugfix/patch/IP-cleaner which would change a whole
*bunch* of source code, without identifying what, exactly, is what? That
might help enforce any confidentiality agreement, not that SCOG would
be happy with it at all.
On a final note, this is assuming that a judge finds some code was
similar enought that it should be removed for some reason. I don't
believe, and never have believed, that there is any infringing code in
Linux. Period.
---
Fear th3 Platypus[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 14 2003 @ 03:04 PM EST |
In the judge's order, nobody commented on this:
5. To the extent IBM's requests call for the production of documents or are met
by documents SCO has already provided, SCO is to identify with specificity the
location of responsive answers including identification of the Bates numbered
documents previously provided if applicable.
Now this is interesting.
Some people have speculated that SCO might come up with a whole new set of
claims, or whatever.
Now here's the thing, SCO has supposedly already partially answered the
questions, and referred to a huge mound of documents (Sys V code, Linux code,
and AT&T licenses) for where responses to the detailed answers can be
found.
Check over the exhibits in IBM's first motion to Compel
SCO said the trade secrets are a bunch of UNIX categories of methods (in their
narrative answer), and detailed answers could be found in SYSTEM V code.
Now if SCO abandons that, and says the answers are not in System V code, but are
in UNIXWARE code (which is Kevin McBride said where the trade secrets are)... I
think they have a BIG BIG problem
The problem being this directly contradicts their earlier responses to the IBM
and the court - AND/OR (probably AND) - indicates their answers were not only
non-specific, but incomplete.
In other words, it opens SCO up to show themselves to have lied to the court.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 14 2003 @ 04:20 PM EST |
Some time ago there whas a article about LIC india that they
dump SCO for
redhat:
In India, Red
Hat Shows SCO the Door and Darl Talks Turkey, in French .
But there is
still a page at SCO webstie with succes sories
wich mentioned LIC india:
Sco success sories
Is this a
mistake or is just for propeganda... Anyway...
If you look at Sco web
site, there is a link "how to buy".
When you click this link
you get another page...
On this page, after the
sentence "To find a SCO solution to
meet your business goals", there is a
link.try
licking... Nope. document not found...Is this a sign? or
not?
Jer
Joke:
*news flash* A group of pinguins arested
Darl McBrid in
Utah. He was living in a hole in the ground because he was
hiding for angry linux users. At the press conference a
video tape was
shown with McBride wearing a beard.
The Iraq minister of information...
nah
sorry this is silly .. I stop
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 14 2003 @ 05:28 PM EST |
Could this Protective Order be related to the recent
news from SCO about their site being attacked by DoS
mechanism ?
They could say that they do not want the details of
the lawsuit be public because they feel that the
"open-source community" would be angry against them
and attack their site "again".
Jacques[ Reply to This | # ]
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Authored by: Jude on Sunday, December 14 2003 @ 06:44 PM EST |
Let's assume, for the sake of discussion, that SCO will manage to find
something in Linux that the court will agree is an infringement of SCO's IP.
OK, then what happens?
First of all, who would be the "guilty" party, the person who
claimed to have written the code or the companies that distributed it?
Second, how would damages be calculated? SCO obvioulsy wants as much money as
they can get, but I don't think the court would let them impose any penalty
they feel like. I'd think the duration of the infringement would be a factor,
but SCO has complicated matters by withholding information that would allow the
infringement to be removed sooner. I've heard a number of people say that SCO
can't increase their "take" by deliberately delaying removal of
infinging code, but if this is so, how would the duration of the infringement be
calculated? Could SCO's blocking of remediation be held against them in such a
way that they get NO compensation?
Third, let's also assume that any infringing code is quickly replaced by other
code that does not infringe. If this does happen, would it effect the amount of
compensation SCO can claim? I'd think a quick replacement would demonstrate
that the exact form of the infringing code wasn't all that imporant to Linux,
and that therefore SCO wouldn't have much basis for claiming exorbitant
compensation.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, December 16 2003 @ 11:36 AM EST |
Assume that SCO presents substantial code as copied from Unixware into Linux. It
needs to prove that such code existed in Unixware before it came into existence
in Linux. Even if SCO swears that it is so, I will not believe it, and so will
everybody else have the right not to believe, considering that SCO has lied to
the public and to the court at least once before.
Therefore, the judge can place the burden of proof once again on SCO. If it
cannot convince all present and the court without reasonable doubt that there is
substantial code copied from Unixware into Linux, then she can dismiss the case.
Then SCO will be guilty of extortion, misrepresentation, harassing, etc. claims
from many individuals and companies. The Linux community will be able to file
lawsuits for damages to their reputation, businesses from loss of profit.
As simple as that. From now on, anything SCO declares in public will be
distrusted, including claims that its servers have been hacked into, EVEN IF
THEY ARE TRUE. That is the curse of a liar; once a liar, always a liar. See
Microsoft?[ Reply to This | # ]
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