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Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings |
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Thursday, February 26 2004 @ 08:22 PM EST
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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
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THE SCO GROUP INC.
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES CORP.
Defendant.
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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
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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- 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
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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- Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings - Authored by: Anonymous on Friday, February 27 2004 @ 06:28 AM EST
- Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings - Authored by: Anonymous on Friday, February 27 2004 @ 08:20 AM EST
- Doesn't matter - Authored by: xtifr on Friday, February 27 2004 @ 08:39 AM EST
- Doesn't matter - Authored by: Anonymous on Friday, February 27 2004 @ 06:24 PM EST
- Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings - Authored by: Nurseman on Friday, February 27 2004 @ 09:15 AM EST
- Discovery - Authored by: _Arthur on Friday, February 27 2004 @ 09:45 AM EST
- Discovery - Authored by: the_thunderbird on Friday, February 27 2004 @ 10:10 AM EST
- Discovery - Authored by: Anonymous on Friday, February 27 2004 @ 10:47 AM EST
- Discovery - Authored by: Hykin on Friday, February 27 2004 @ 11:22 AM EST
- Discovery - Authored by: Anonymous on Friday, February 27 2004 @ 06:43 PM EST
- Discovery - Authored by: Anonymous on Friday, February 27 2004 @ 08:25 PM EST
- Discovery - Authored by: Anonymous on Friday, February 27 2004 @ 11:10 PM EST
- Judge Wells: Because IBM Didn't Oppose, SCO May Amend Pleadings - Authored by: PM on Saturday, February 28 2004 @ 02:35 AM EST
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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!
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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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