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Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
Thursday, February 26 2004 @ 08:22 PM EST

Judge Wells has signed her order on the issue of whether SCO may amend its
pleadings. Because IBM did not oppose, she has agreed to let them do so.
They did not oppose, however, "subject to IBM's right to move against
the amended pleadings." I would expect that means they intend to do so.

This is not the order on the discovery issues that we are all eagerly waiting for,
and it isn't a "win" for either side, because there was no fight over it. It's more
procedural. This is just the order on the unrelated issue of whether
SCO could amend its complaint. This order is easier to get done first, because
it wasn't contested. The discovery issues are far more complex, and it's natural
she would take more time for that.

It's not up on the free Pacer list yet, but it should be soon.
PDF: http://www.groklaw.net/pdf/IBM-107.pdf

On the Novell front, Judge Kimball signed three orders, so that three attorneys
can represent Novell, despite not being Utah attorneys. This is similar to David
Boies being able to represent SCO in Utah, despite not being admitted to the bar in Utah.

The three that are the subjects of the orders and the list of courts where
they are admitted are:

1. Paul Goldstein -- admitted to practice in the following:

Sup. Ct. of the State of CA - 1978
State of NY, 2d Dept. -1968
US Dist Ct. CA, Northern, Central, Eastern -1990-1992
US Ct of Appeals 9th Cir. - 1990
US Ct of Appeals 10th Cir. - 1992
US Supreme Court -1994

2. Michael A. Jacobs -- admitted to practice in the following:

US Dist Cts CA Northern, Southern, Central Districts - 1983-93
US Dist Ct, CT - 1998
US Ct of Appeals 4th, 9th Circuits - 1988 and 1991
US Ct of Appeals for the Federal Circuit - 1992
US Ct of Appeals, 2d Cir - 2001
US Supreme Court - 1993

3. Matthew I. Kreeger -- admitted to practice in the following:

Sup Ct CA -1991
US Dist Cts CA Northern, Central, Eastern, Southern Districts - 1992-98
US Ct of Appeals for the Federal Circuit - 1995
US Ct of Appeals 9th Cir - 1996

Here is the order by Judge Wells:



---------------------------------------------

IN THE UNITED STATES DISTRICT COURT

CENTRAL DIVISION, DISTRICT OF UTAH

---------------------------------------------

THE SCO GROUP INC.

Plaintiff,

vs.


INTERNATIONAL BUSINESS MACHINES CORP.

Defendant.

----------------------------------------------

ORDER GRANTING SCO GROUP INC.'S
MOTION FOR LEAVE TO FILE AMENDED PLEADINGS

Case No. 2:03cv00294 DK

----------------------------------------------

The Court having reviewed Plaintiff and Counter Defendant
SCO Group Inc.'s Motion for Leave to File Amended Pleadings, and
the accompanying memoranda hereby enters the following:

IBM in its memoranda in response stated that it "does not
oppose plaintiff's second motion for leave to amend, subject to
IBM's right to move against the amended pleadings."

The Court, therefore, finding good cause shown hereby GRANTS
SCO Group's Motion for Leave to File Amended Pleadings.

DATED this 25th day of February, 2004.

BY THE COURT:

<signature>
BROOKE C. WELLS
United States Magistrate Judge

  


Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings | 165 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
Authored by: Waterman on Thursday, February 26 2004 @ 10:27 PM EST
Movement at last. Discovery issues are bound to be taking a lot of their time.
Crossing t's and dotting i's.

[ Reply to This | # ]

Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
Authored by: WhiteFang on Thursday, February 26 2004 @ 10:27 PM EST
Great!!

{rubbing hands gleefully}

This is definitely better than 'Dirty Harry'.

Popcorn for all! Go IBM! Go!

Disclaimer:

IANAL, IANPJ, IANAPL, IDPALOTV - I'm just a very, very, very interested and
concerned citizen.

[ Reply to This | # ]

Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
Authored by: jimbudler on Thursday, February 26 2004 @ 10:32 PM EST
So isn't the first motion by IBM going to be approx. "Since SCO motion to
compel discovery no longer applies, shouldn't that motion be dismissed?"

[ Reply to This | # ]

Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
Authored by: nzkoz on Thursday, February 26 2004 @ 10:33 PM EST
Now we get to wait on the discovery rulings. Anyone taking bets on that date?



---
Cheers
Koz

[ Reply to This | # ]

Dismissal not imminent
Authored by: DrHow on Thursday, February 26 2004 @ 10:34 PM EST
It seems to me that we can infer from this event that a dismissal of SCO's case
is not imminent. Some folks had speculated that the lengthy delay might portend
such dismissal. But if the judge were about to do that, there would be no point
in allowing the changes.

[ Reply to This | # ]

OT: Novell case
Authored by: Anonymous on Thursday, February 26 2004 @ 10:35 PM EST
Aren't we about due for a SCO new filing in the Novell case? Aren't they
supposed to respond to Novell's motion? When is the deadline?

[ Reply to This | # ]

Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
Authored by: Anonymous on Thursday, February 26 2004 @ 10:41 PM EST
Hmmm. Given that IBM was so obviously casual about this, and the
judge seemed to agree, I wonder if this, yesterday's order, is responsible
for SCO's price slide today.

After all, when somebody says, "Make my freaking day", and a federal
judge says, "Yeah, feel free to make their day", the stock just can't
seem
like such a good bet anymore...

[ Reply to This | # ]

    Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
    Authored by: Anonymous on Thursday, February 26 2004 @ 11:04 PM EST
    My guess is that IBM is going to file a motion soon to dismiss the new charge.
    IBM has at least three grounds:

    1. The license is perpetual so SCO had no right to suspend it.

    2. SCO never notified IBM of the specific violations it claimed as grounds for
    suspend of the license.

    3. Novell has excercised its rights under the APA to forbid SCO from suspending
    the license.

    Any one of these would be enough to dismiss the new charge.

    [ Reply to This | # ]

    IBM's lawyers have done this before
    Authored by: Anonymous on Thursday, February 26 2004 @ 11:23 PM EST
    "Sure, you can amend your complaint. But since the rules really forbid it, you can only do it under the condition that we can argue whether or not the new complaints can be added."

    Neat little trick - SCO now has to win twice on each count. Once to even get each new complaint to trial, and then at the trial itself, assuming they even survive that long.

    So why would SCO's lawyers do this? IANAL, but the only thing that this seems to do is prolong the trial....

    [ Reply to This | # ]

    Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
    Authored by: Anonymous on Thursday, February 26 2004 @ 11:24 PM EST
    2. Michael A. Jacobs -- admitted to practice in the following:
    US Dist Cts Northern, Southern, Central Districts - 1983-93

    The transcription is missing the state. CA or IL are the only two states I found with Northern, Southern and Central districts. (I looked at the list in 28USC133.)

    --Bill, whose account still doesn't work

    [ Reply to This | # ]

    Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
    Authored by: blacklight on Thursday, February 26 2004 @ 11:27 PM EST
    IBM at this point holds most if not all of the cards. IBM's decision not to
    resist the SCO Group's motion to file amended pleadings amounts to playing with
    the food before eating it. IBM is apparently in no hurry to put the SCO Group
    out of its misery: I'd say the SCO Group is in for a long, slow, hard death.

    [ Reply to This | # ]

    An SCO Blunder?
    Authored by: Anonymous on Thursday, February 26 2004 @ 11:52 PM EST
    If IBM can move to dismiss portions of the amended complaint and make their
    arguments now, doesn't this force exactly the sorts of decisions that SCO is
    trying to delay? Also, wouldn't rulings on theses motions be dispositive and
    have to be made by Judge Kimball?

    [ Reply to This | # ]

    The Code
    Authored by: Rodrin on Friday, February 27 2004 @ 12:07 AM EST
    This seemed an appropriate thread to leave this under:

    The Code
    (with apologies to Edgar Allan Poe)

    I.

    Hear them talk of stolen code--
    Unix code!
    Since a failing company they're trying to unload!
    Hear them ranting, ranting, ranting
    Of their company's despair!
    How they go on gallivanting
    Till the journalists come panting,
    Smelling scandal in the air;
    Hear them whine, whine, whine,
    Though their claims they can't define,
    Hoping that an offer from Big Blue they can thus goad
    For the code, code, code, code,
    Code, code, code--
    For this washed out company's long outdated code.

    II.

    Now they bring up Sequent's code--
    Dynix code!
    Oh, for Linux users very well this does not bode!
    "Through the kernel we did pore;
    Found a million lines, or more!
    It is precious now to us,
    And trade secret;
    So we'll put up such a fuss,
    For by giving it to Linux, Big Blue failed thus
    To keep it!
    Oh, from us you may download
    Every single line of this, our precious, secret code!
    But we're owed,
    Though we've bestowed
    Our permission to download,
    Yes, to all, the license showed,
    Be they filing or compiling,
    For the code, code, code;"
    For the code, code, code, code
    Code, code, code;
    For this hard to keep what's not so secret code!

    III.

    Now they speak of Linux code--
    Header code!
    For which there is copyrighted attribution owed!
    Though the POSIX standard now,
    That it's theirs they do avow!
    And amused by more than half,
    Coders can but laugh, laugh
    On the floor;
    Though this is a weak invention since they could not find a buyer,
    Just another prop for sagging stock is all that they require;
    Push it higher, higher, higher!
    To cash out they now aspire;
    Since their stock, it could collapse,
    Press releases mustn't lapse
    Till they all have got out the door;
    Header code, code, code!
    That he wrote this Linus showed,
    And I quote:
    "The details in them aren't the same;"
    In fact he had a bit of shame
    For those old and ugly macros that he wrote;
    Yet there was proof there, in the flaws
    Of toupper()
    And tolower()
    That there'd broken been no laws;
    But this recent episode
    Of conniving
    And contriving
    The true motive once more showed
    Of those lying and decrying over simple header code;
    Header code!
    Over code, code, code, code,
    Code, code, code!
    Over trivial, yet original header code!

    IV.

    They return to Big Blue's code--
    In house code!
    "Though it's not trade secret, it has derivation owed
    To our Unix, since that you
    Paired the code with our code too;
    Work derived from work derived is ours as well;
    That's what our contracts say;
    See, right here, Exhibit A
    Thus does tell;"
    "But what of C? Exhibit C?
    Take a look and you will see
    That rights dwell
    With those coding, coding, coding
    To reuse now, or to sell,
    Or give license for downloading;"
    But these words on deaf ears fell;
    For though neither law nor contract
    In any way disputes this fact
    They persist,
    Claiming IBM reveal,
    And they steal, steal, steal, steal.
    Steal
    Every line of code,
    And they are somehow owed
    For every line of code
    Even though it can't be showed;
    Still they whine, whine, whine,
    Though their claims they can't define
    For every line of code!
    Still they whine, whine, whine,
    Though their claims they can't define
    Of the taking of their code!
    Of their code, code, code!
    Or forsaking of their code!
    Still they whine, whine, whine,
    "We are owed, owed, owed,"
    Yet claims still they can't define
    Of the stealing of their code!
    Of their code, code, code!
    Or revealing of their code!
    Of their code, code, code, code,
    Code, code, code!
    Of impinging or infringing on their code!

    [ Reply to This | # ]

    • The Code - Authored by: Anonymous on Friday, February 27 2004 @ 12:32 AM EST
      • The Code - Authored by: Rodrin on Friday, February 27 2004 @ 09:41 AM EST
    • The Code - Authored by: grouch on Friday, February 27 2004 @ 12:48 AM EST
    • my favourite part - Authored by: gdeinsta on Friday, February 27 2004 @ 02:29 AM EST
    • The Code - Authored by: Newsome on Friday, February 27 2004 @ 02:48 AM EST
      • The Code - Authored by: Rodrin on Friday, February 27 2004 @ 10:58 AM EST
        • The Code - Authored by: Anonymous on Friday, February 27 2004 @ 12:33 PM EST
    • The Code - Authored by: Jude on Friday, February 27 2004 @ 04:26 PM EST
    Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
    Authored by: sicarii on Friday, February 27 2004 @ 12:21 AM EST
    Go IBM baby...Slap em silly with your wet,cold flippers...

    [ Reply to This | # ]

    IBM wanted copyright claims
    Authored by: Thomas Frayne on Friday, February 27 2004 @ 01:09 AM EST
    I think that IBM wanted SCOG to file copyright claims. This gives IBM the chance to bring up the fact that SCOG distributed the Linux kernel under the GPL as part of IBM's defense against SCOG's copyright claims.

    Whatever SCOG argues can be used against it later, and the judge might be able to dismiss the claims on the basis of law and what SCOG has admitted in court, so the case would not need to go to a jury.

    For an example of the sort of delemma SCOG might face, see scenario

    [ Reply to This | # ]

    What happened to ...
    Authored by: Anonymous on Friday, February 27 2004 @ 02:16 AM EST
    IBM wanted SCO to file this. OK.
    Make my day. All Right.
    This is another SCO delaying tactic. No problem.

    But what happened to: Because SCO's copyrights are in dispute by Novell's
    counter-action, this amendment is moot and will be wiped of the table until this
    issue is resolved ?

    Can Judge Wells just ignore Novell's attempt to come to IBM's rescue and disrupt
    the process ?
    Novell put a lot of effort in it and is taking enormous risks.
    I think the judge should show some respect for that and at least grant Novell a
    little intermediate reward.
    They deserve it.

    [ Reply to This | # ]

    Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings
    Authored by: the_thunderbird on Friday, February 27 2004 @ 05:23 AM EST
    I have an interesting question, one I should have asked when SCO asked to amend
    their claims, how can SCO sue for copyright infringement, if they cannot prove
    IBM was in breach of contract? Cuz as I understand it, SCO is sueing IBM for
    copyright infringement on the basis that they terminated IBM's license after
    dropping their contract case, I think that SCO made a little booboo here,
    because in theory unless they can prove that IBM was in breach of contract they
    cannot sue for copyright infringment because there is NO SCO Copyrighted code in
    Linux, as far as we know!

    Am I right in suggesting this?

    [ Reply to This | # ]

    I think the legal system is a farce....
    Authored by: Anonymous on Friday, February 27 2004 @ 11:57 PM EST
    This shows how stupid and convuluted the legal system is.

    You think if entity S makes accusations T against entity I then that is what the
    case is about. Once the initial "charges" have been laid, that should
    be the basis for the trial. There should be no possibility of changing the
    entire court case.

    Discovery is a ridiculous process as well; who developed such a ridiculous
    tit-for-tat process? Its inherently flawed as each side will always want more
    information.

    My proposal is....

    Plaintiff makes accusations, eg serves a writ whatever the correct terminology
    is, to start the court case. Once the writ has been served no modifications are
    permitted.

    Then the court should simply hear ALL of the plaintiff's evidence first (with
    cross-examination). Once the plaintiff has finished, that is it, they cannot add
    to / subtract from the case. No exceptions.

    Have a fixed 1 week break to allow the defendant to do research (who could do
    research from day 2 of evidence in reality).

    Then the defendant will present ALL evidence it believes disproves the
    accusations (with cross-examination). Again at the end of this stage there is no
    going back, making changes etc.

    Then summaries and jury decision.

    I'm sure this trial would be over by now if the courts followed the above
    process. SCO would have been forced to drop the trade secret case a long time
    ago. They probably would have already lost the 2nd copyright infringement case
    as well.

    The legal system in my opinion is a farce and seems to be designed simply to
    line the pockets of lawyers.

    PS IANAL if u hadn't noticed!

    [ Reply to This | # ]

    SCO May File to Amend Pleadings
    Authored by: Anonymous on Saturday, February 28 2004 @ 01:30 PM EST
    IANAL, but this doesn't seem to grant the right to amend the pleading (charges
    against IBM). It's more like asking for the right to request a change.
    <analogy>
    "Boss, can I file a request for additional funds?"
    I am not (yet) asking for additional funds, I am asking permsision for the right
    to ask for more funds. I still have to file a request, and that request will
    have to acted on seperately.
    </analogy>
    Is this reading of the motion correct? Or is the filing that The SCO Group have
    yet to make automatically granted?

    [ Reply to This | # ]

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