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What's Wrong with Enderle's "Legal" Strategy |
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Thursday, April 08 2004 @ 08:12 PM EDT
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Mr. Enderle, SCO's true believer, has written that if he were on a jury, he'd vote for SCO. That, of course, does not amaze you. He has also given us a heads up on what he believes they will tell a jury and why he thinks it will convince them. Unfortunately for Mr. Enderle's theory, he doesn't understand that when you ask for a declaratory judgment, as IBM has on its counterclaims, the jury doesn't decide it. Declaratory judgments are decided by the judge.
It's of interest to study what Enderle says is likely to be their strategy. It may finally explain why SCO so urgently wanted the world to know that they had been allegedly "attacked". Normal companies hide such information at all costs. But SCO puts out press releases and gives interviews about being allegedly "attacked" over and over and over. They need to be attacked in order to win with a jury, according to Enderle's "legal" theory. The problem with his theory is, it isn't legally possible for them to argue what he suggests they will:
SCO's Likely Argument. The typical jury, in the artificial courtroom environment, will find my depiction of SCO's likely argument quite compelling.
Here's that story in a nutshell: -
Small company buys product.
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Big company steals product.
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Big company attacks other companies.
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Small company attempts redress through the courts.
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Small company gets violently attacked.
"If the facts support this simple story, I believe a typical jury will have a hard time not finding for the small company. Particularly if I toss in the fact that the small company is run by Mormons and the big company is portrayed like WorldCom or Enron. I haven't seen yet any facts that would support this "simple story" and they have their work cut out for them trying to make IBM look like Enron. For one thing, they can't bring in the Mormon or Enron part, because it's irrelevant or improper. And they can't say steal, because it's about contract, not theft. They can't argue anything they can't prove. That's the difference between the media and a courtroom. There will be no mention of any attacks in a trial unless they have a witness, or some other evidence, to prove that the "attack" was by IBM. Attacks are irrelevant to the issues unless there is an attack by a party.
But telling us what the strategy is helps me to understand something we have all puzzled over. If SCO thinks they can bring this nonsense up at trial, could that be why they keep talking about this? SCO may be exaggerating any threats or attacks, if they aren't making them up out of whole cloth in some cases, because they think they can use it at trial. We wondered why they included such "facts" in their SEC filings, even when the deadline for the filing preceded the alleged "attack" and why they fingered "the Linux community" as perpetrator, despite having no facts to back it up or ignoring evidence that the MyDoom attack came from professional spammers in Russia. If I remember correctly, they even implied once that IBM might be behind the "attacks". If Enderle knows what he is talking about, and this reallly is the SCO legal strategy, it seems they will be hoping to present such "evidence" to the jury, so they are creating some "evidence", which of course some in the mainstream media helped them to do by printing whatever they were told without doing any digging as to whether it was true. But, again, they can't argue what is not proven and they can not prove what is not relevant. They might try to squeeze it in on the rhetorical margins, if the judge doesn't catch it.
If this is their strategy, I think they will go down in flames. Mr. Enderle has a lower opinion of jurors than I do. The way he disparages jurors in his article is offensive and, in my experience, inaccurate. It wouldn't amaze me, if Enderle were ever to testify at trial, that IBM might bring what he wrote to the jury's attention. But the simple fact is, this jury isn't likely to be deciding everything, if they ever get to decide anything at all, because IBM has asked for a declaratory judgment on its counterclaims, and that's a lot of the story. Judges decide those, and he isn't going to be moved by such nonsense as Enderle proposes. Earlier rulings by Judge Kimball have shown that he doesn't favor the LDS church in his courtroom, despite being a Mormon himself, and he has ruled against local companies in favor of outsiders. And he understands the tech. Anyway, unless SCO can produce some allegedlly infringing code soon, this case is unlikely to ever reach a jury. Here's what IBM has asked Judge Kimball to decide, according to IBM's Second Amended Counterclaims' relief paragraphs:
e) granting IBM declaratory relief, including a declaration that (i) that IBM does not, through its reproduction, improvement, and distribution of AIX and Dynix, infringe, induce the infringement of, or contribute to the infringement of any valid and enforceable copyright owned by SCO; (ii) that IBM does not, through its Linux activities, including its use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of any valid and enforceable copyright owned by SCO; (iii) SCO has violated IBM's rights as outlined above by breaching its contractual obligations to IBM, violating the Lanham Act, engaging in unfair competition, interfering with IBM's prospective economic relations, engaging in unfair and deceptive trade practices, breaching the GPL, infringing IBM copyrights and infringing IBM patents; (iv) SCO has no right to assert, and is estopped from asserting, proprietary rights over programs that SCO distributed under the GPL except as permitted by the GPL; and is not entitled to impose restrictions on the copying, modifying or distributing of programs distributed by it under the GPL except as set out in the GPL; and (v) any product into which SCO has incorporated code licensed pursuant to the GPL is subject to the GPL and SCO may not assert rights with respect to that code except as provided by the GPL;
(f) granting IBM injunctive relief, enjoining and restraining SCO and its affiliates, subsidiaries, officers, agents, servants, employees, attorneys, successors and assigns and all others persons acting in concert with them, from further violating IBM's rights as described above, including in particular from (i) misrepresenting SCO's rights and IBM's rights to Unix technology, such as that SCO can, will or has in fact revoked IBM right to use Unix, (ii) misrepresenting that IBM no longer has the right, authority and license to use, produce and distribute AIX, Dynix and IBM's Linux-related products; (iii) publishing false and disparaging statements about AIX, Dynix and IBM's Linux-related products; (iv) engaging in further acts of unfair competition; (v) claiming certain ownership rights over programs made available under the GPL; (vi) engaging in unfair and deceptive trade practices; (vii) further infringement of IBM's copyrights; and (viii) further infringement or inducement of infringement of the ‘746, ‘209 and ‘785 Patents; If Judge Kimball grants their request for a declaratory judgment, important issues will bypass the jury completely. Now declaratory judgments are not guaranteed to you, just because you asked, and SCO has requested a jury trial of "all issues raised in IBM's amended counterclaims that are so triable". But if SCO is relying for a win based on a prejudiced jury pool of doddering old people who can't grasp technical arguments and root only for home team companies, as Mr. Enderle posits, they have hung their legal hopes on a mighty thin string indeed. What he doesn't seem to know is that the judge can effectively overshadow and contradict the jury, with the declaratory judgment and injunctions. Further, because IBM can ask for a summary judgment on the GPL at least, and on some other matters if SCO doesn't cough up some code, we might get some relief early and make the jury part on derivative code nearly irrelevant.
How foolish SCO and its little helpers are to broadcast their legal strategy, if that is what this was. It only tips IBM off, and in any case, in asking for a declaratory judgment, which I expect will not be the last thing they ask for, they made a very strong move that checkmates Mr. Enderle's fantasy scenario.
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Authored by: Anonymous on Thursday, April 08 2004 @ 08:26 PM EDT |
Here's that story in a nutshell:
1. Small company buys product.
2. Big company steals product.
3. Big company attacks other companies.
4. Small company attempts redress through the courts.
5. Small company gets violently attacked.
How many of Microsofts settlements over stolen IP does that describe? Is he
talking about the right case?
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 08:27 PM EDT |
Exactly as you said PJ,
Bringing up religion is improper and irrelevant in this case.
Besides that, I am a Mormon and my skin crawls at the thought of what SCO has
done.
Thanks for the good work PJ![ Reply to This | # ]
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- Maybe they could argue... - Authored by: math geezer on Thursday, April 08 2004 @ 09:21 PM EDT
- I do hope... - Authored by: DaveAtFraud on Thursday, April 08 2004 @ 09:39 PM EDT
- Enderle is a Bigot to appeal to other Bigotry - Authored by: Anonymous on Thursday, April 08 2004 @ 10:20 PM EDT
- Religion is Irrelevant - Authored by: Anonymous on Thursday, April 08 2004 @ 10:34 PM EDT
- Religion is Irrelevant - I 2nd that! - Authored by: Anonymous on Thursday, April 08 2004 @ 11:01 PM EDT
- I'm LDS (Mormon) too and I think that... - Authored by: lachoneus on Thursday, April 08 2004 @ 11:34 PM EDT
- Religion is not quite Irrelevant - Authored by: Anonymous on Friday, April 09 2004 @ 12:18 AM EDT
- Religion is Irrelevant - Authored by: Anonymous on Friday, April 09 2004 @ 02:19 AM EDT
- Religion is NOT Irrelevant - Authored by: technoCon on Friday, April 09 2004 @ 02:51 AM EDT
- Religion is Irrelevant - Authored by: Anonymous on Friday, April 09 2004 @ 03:18 AM EDT
- Religion is Irrelevant - Authored by: frk3 on Friday, April 09 2004 @ 09:54 AM EDT
- Religion is Irrelevant - Authored by: cranesable on Friday, April 09 2004 @ 03:25 PM EDT
- Religion is Irrelevant - Authored by: Anonymous on Saturday, April 10 2004 @ 04:45 PM EDT
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Authored by: kpl on Thursday, April 08 2004 @ 08:36 PM EDT |
When it comes right down to it, even when (notice
I didn't say if ;-)) IBM
wins the court case and
SCO melts down, Mr. Rob will probably say
SCO
won, out of spite to the Open Source movement.
(Let's face it, he's
as fond of us as we are
of him)
--- --------------------
mv sco /dev/null
-------------------- [ Reply to This | # ]
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Authored by: Kevin-au on Thursday, April 08 2004 @ 08:36 PM EDT |
SCO continues to delay until just before a judgement is handed down. They then
declare themselves bankrupt and withdraw from the case.
1. If an adverse judgement is handed down, SCO says "we didn't loose, we
couldn't put forward a closing argument which would have won us the case".
Similar arguments by all on the SCO side.
2. SCO share price plummets, but Darl and the rest of SCO management have made
lots of money via their share options, etc, while the SCOX price was high. They
walk away happy.
3. Microsoft is happy because the FUD has lasted so long. They will say to
customers, "remember SCO, it could happen again if you don't buy
Microsoft".
4. The whole SCO thing may have been planned this way, with SCO being very
careful not to do anything that the regulators can find to prosecute.
Whats worse, other non-SCO scoundrels learn how to make money this way (eg
"greed is good") and we are innundated with SCO like suits.[ Reply to This | # ]
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Authored by: Xenographic on Thursday, April 08 2004 @ 08:37 PM EDT |
"I even fact-checked it with SCO to ensure that it matched up with the
company's beliefs. It did."
----
Fact-checked?
You keep using that word. I do not think that that word means what you think it
means...[ Reply to This | # ]
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Authored by: inode_buddha on Thursday, April 08 2004 @ 08:38 PM EDT |
I kinda hate to think this but... the recent Tyco mistrial comes to mind. Let
alone the "Microsoft" defense of irritating the Judge.
---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman[ Reply to This | # ]
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Authored by: Sauja on Thursday, April 08 2004 @ 08:40 PM EDT |
Enderle knows nothing.
Even the Apple guys complain about his
constantly inacurate predictions. (clickie).
I would
put no weight in any words he writes. Period.
Sauja[ Reply to This | # ]
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Authored by: k4_pacific on Thursday, April 08 2004 @ 08:42 PM EDT |
Rob says that jurors will find for SCO because they won't understand the case.
Rob says that he would side with SCO if he were a juror. Therefore, Rob does
not understand the case.
Mike
[ Reply to This | # ]
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Authored by: MattZN on Thursday, April 08 2004 @ 08:46 PM EDT |
Calm down! The best way to deal with Enderle is to save up all that emotion
until the day SCO kicks the bucket and then throw it all in his face (and in the
faces of whoever was stupid enough to hire him) all at once from every corner of
the universe. We'll have a 'Make Enderle Eat It' day and make a party out of
it.
Though it does seem to me that IBM has presented as rock solid a case as
it is possible to present, I don't think people should be pinning all their
hopes on a summary judgement. SCO has obviously attempted to lay a legal
minefield to create grounds for an appeal, or another extension, or enough
confusion to avoid a summary judgement. Regardless of how bad their case is, if
their goal is to drag the case on as long as possible they might well have
managed to avoid the worst case scenario (for them) by a pins width.
I hope
not. IBM's case looks airtight to me. The judge should be able to deny SCO's
time extension request and make a summary judgement, dismissing the case with
prejudice, without giving SCO any grounds for appeal. We will know soon
enough.
-Matt [ Reply to This | # ]
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Authored by: brenda banks on Thursday, April 08 2004 @ 08:52 PM EDT |
you go PJ
hehehehehe
the "unnamed one" has it so wrong again.i really enjoy this when we
can show that some just live in the *alternate* universe
---
br3n
irc.fdfnet.net #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 08:56 PM EDT |
I have been considering setting up a website dedicated to Enderle and Didiots.
A groklaw for analysts, the good ones and bad. Somebody needs to keep a good
record of what these analysts say day in and day out and how many times they
have been wrong or right. We'd have a hall of fame and hall of shame. Enough
is enough the world at large needs to know which analysts actually know their
stuff and which ones are blithering idiots.
And when some reporter prints a
quote from Enderle we can point them to our hall of shame list where Enderle is
likely to rank at the top, with good reasons. And encourage them to reevaluate
their needs for quotes from quote-mills like Enderle.
I am stuck at the
domain name. Can you suggest a good one?
AnalyzingtheAnalysts.com seems
too long. Grokanalysts?
Its about time somebody started exposing Mr.
Enderle for who he is.
[ Reply to This | # ]
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- Website dedicated to Enderle and friends - Authored by: wepprop on Thursday, April 08 2004 @ 09:03 PM EDT
- Fudbusters - Authored by: cricketjeff on Thursday, April 08 2004 @ 09:04 PM EDT
- Website dedicated to Enderle and friends - Authored by: javajedi on Thursday, April 08 2004 @ 09:12 PM EDT
- Website dedicated to Enderle and friends - Authored by: cricketjeff on Thursday, April 08 2004 @ 09:16 PM EDT
- Website dedicated to Enderle and friends - Authored by: Anonymous on Thursday, April 08 2004 @ 09:17 PM EDT
- Website dedicated to Enderle and friends - Authored by: Chugiak on Thursday, April 08 2004 @ 09:27 PM EDT
- Website dedicated to Enderle and friends - Authored by: Jude on Thursday, April 08 2004 @ 10:06 PM EDT
- dendidiots.com has a nice ring - Authored by: kawabago on Thursday, April 08 2004 @ 10:11 PM EDT
- Website dedicated to Enderle and friends - Authored by: Oloryn on Thursday, April 08 2004 @ 10:57 PM EDT
- Website dedicated to Enderle and friends - Authored by: xraybox on Thursday, April 08 2004 @ 11:20 PM EDT
- GrokShill.org - Authored by: Anonymous on Thursday, April 08 2004 @ 11:37 PM EDT
- Website dedicated to Enderle and friends - Authored by: jponko on Thursday, April 08 2004 @ 11:43 PM EDT
- A few suggestions ... - Authored by: Anonymous on Friday, April 09 2004 @ 01:04 AM EDT
- Website dedicated to Enderle and friends - Authored by: Anonymous on Friday, April 09 2004 @ 03:17 AM EDT
- Website dedicated to Enderle and friends - Authored by: Juggler9 on Friday, April 09 2004 @ 03:46 AM EDT
- AnalystRatings.com? - Authored by: Anonymous on Friday, April 09 2004 @ 04:07 AM EDT
- Name proposal... - Authored by: Anonymous on Friday, April 09 2004 @ 05:43 AM EDT
- Website dedicated to Enderle and friends - Authored by: Anonymous on Friday, April 09 2004 @ 05:45 AM EDT
- Grokshill is already taken. - Authored by: Anonymous on Friday, April 09 2004 @ 05:55 AM EDT
- Website dedicated to Enderle and friends - Authored by: SirFozzie on Friday, April 09 2004 @ 09:31 AM EDT
- Welovesco'slittlehelpers.com - Authored by: Lino on Friday, April 09 2004 @ 11:20 AM EDT
- Interesting idea, link - Authored by: Anonymous on Friday, April 09 2004 @ 03:09 PM EDT
- my teacher.net could be used if desired - Authored by: Anonymous on Friday, April 09 2004 @ 05:49 PM EDT
- www.endidiots.net - Authored by: Anonymous on Friday, April 09 2004 @ 06:45 PM EDT
- lyendidiots.com - Authored by: Anonymous on Monday, April 12 2004 @ 02:45 PM EDT
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Authored by: Anonymous on Thursday, April 08 2004 @ 08:58 PM EDT |
AFAIK (IANAL) a judge will decide what to do about Novell's waiving of SCOG's
rights to do anything to IBM.
Mark Radcliffe wrote that this was a magic bullet, slam-dunk, sure-fire,
SCOG's-case-is-in-the-stoolwell[*] clause.
[*] aka midden or outhouse[ Reply to This | # ]
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Authored by: NicholasDonovan on Thursday, April 08 2004 @ 08:58 PM EDT |
Rob just has a knack for wanting attention. Like a taunting child, he loves it
when people write nasty things to him etc.
His "Analytical Group of One" is funny as well. Maybe there really is
more than just him! (Multiple personalities anyone?)
Maybe this kid should take his act on the road?
He just gets funnier each time! Between Rob, Didio and Lyons they are the
constant butt of jokes at many of the analyst meetings I've participated in.
:-)
SNL... maybe MadTV... Here they come!
Nick
---
Not an Attorney.
Views expressed are my personal opinions and not necessarily those of my
employer or its affiliates. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 09:00 PM EDT |
The following quoted from a post on Yahoo board for SCO:
According to an
article on eweek (Link below) MS pays Enderle cash for his services. What
services? I'll leave that as an exercise for the reader.
Quote: "Editor's
note: Microsoft Corp. is a client of the Enderle Group , the consulting firm
headed by Rob Enderle."
http://www.ewee
k.com/print_article/0,3048,a=110659,00.asp
And if you really dont know
what Enderle group does then follow the link below. Read the last 2 paragraphs.
Basically he tells you that he will say what you want him to say in return for
money.
http://www.e
nderlegroup.com/products/prod_referenceAcct.htm
Needless to say this
is a very unethical way of making a living.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 09:01 PM EDT |
Endrool also claims SCOG is hiding something important that they will spring on
IBM in court.
That's not allowed, is it? I thought in a civil matter you have to present
everything you'll show in court, to the opposition, during discovery.
[ Reply to This | # ]
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Authored by: Flower on Thursday, April 08 2004 @ 09:08 PM EDT |
And here I was in the preceding article ready to make a bet that you wouldn't
comment on this article due to your "high" regard of Rob's research
methods.
Remind me I shouldn't gamble. :)
---
Teach it phenomenology.[ Reply to This | # ]
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- Dang PJ - Authored by: PJ on Thursday, April 08 2004 @ 09:17 PM EDT
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Authored by: elcorton on Thursday, April 08 2004 @ 09:09 PM EDT |
> Unfortunately for Mr. Enderle's theory, he doesn't
> understand that when you ask for a declaratory judgment, as
> IBM has on its counterclaims, the jury doesn't decide it.
> Declaratory judgments are decided by the judge.
I've been thinking about this in regard to the stay in the Red Hat case. It
seems unreasonable to make that party wait years for relief because of
what's going on in another court. Is it plausible that Robinson might have
contacted Kimball to ask when he planned to enter declaratory judgement,
and was told it wouldn't be that long?[ Reply to This | # ]
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Authored by: kjb on Thursday, April 08 2004 @ 09:09 PM EDT |
You are really triplets, right?
I don't know how you do it, but thanks again!
---
"No! Try not. Do, or do not. There is no try."
- Yoda[ Reply to This | # ]
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Authored by: RedBarchetta on Thursday, April 08 2004 @ 09:11 PM EDT |
If you click on the link to his article, you are feeding him hits. It's best
not to do this, because otherwise it lends legitimacy to his "analyst"
business.
It's best just to ignore this guy and take PJ's word. I have long learned to
trust what PJ writes over what Enderle writes. Her writeup on him satisfies my
fill for idiotic analysts for at least the foreseeable future.
Remember, when you hear the name Enderle... think "paid schill." (He
is a paid analyst for Microsoft - he admitted it himself. He even writes for MSN
Money!)
[ Reply to This | # ]
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Authored by: DaveS on Thursday, April 08 2004 @ 09:15 PM EDT |
What bothers me the most on Enderle's latest is his opinion of the lack of
capabilities of everyone over the age of 50. In my case, I have been using
computers since the TRS-80 model 1 days.
Most of the seniors that I know can and want to learn new things, and I have
helped a few get started with computers.
By the way I am one ot them, retired and 67 years old.
Dave
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Authored by: Anonymous on Thursday, April 08 2004 @ 09:25 PM EDT |
I'll probably get censored for it (why do you think I didn't log in?)
but I think Mr. Enderle made a typo. I think he meant to say that the company
is run by morons. Just one m.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 09:48 PM EDT |
Reminder,
"If the glove don't fit, you must aquit."
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 09:50 PM EDT |
Q: for PJ or other professionals:
In a civil action such as this lawsuit, do
the parties have the same latitude in jury selection that exists in criminal
cases? Do they have the opportunity to interview prosepective jurors and exclude
them (for good cause, or with a permissible number of arbitrary challenges)?
Inquiring minds want to know...
Unlike a criminal case, if I understand
correctly, in a civil trial finding one friendly juror does not ensure at least
a tie (hung jury). There is no need for unanimity; a majority decision is
sufficient. That makes Enderle's strategy harder to apply: you need many
sympathetic jurors, not one. [ Reply to This | # ]
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Authored by: orgngrndr on Thursday, April 08 2004 @ 09:58 PM EDT |
SCO's legal defense theory according to Enderle:
SCO is essentially hoping for Jury Nullification.
The Jury will tend to chose the "small business" over the
"multinational corporation" due to sympathy. The jurors, being retired
senior citizens will over look the nonexistant evidence presented by SCO and
sympathetically award them 5 billion.
If that's SCO's strategy.... well I wish them well. I would also like to sell
them some of my flying pigs.
If the trial even gets to be heard by a jury, which is EXTREMELY doubtful. I
would look foward to the day that IBM puts Daryl Mcbride on the stand under
Oath!!.
No, the trial will never get that far.
IBM will win the declaratory judgement it has asked for, essentially gutting
SCO's case. It will probably have the breach of contract suit dismissed also,
which is really all SCO has left and will have to then answer the patent case.
If IBM feels sorry for SCO, it might reach a settlement., ie in return for
dropping the "contract" case, we will not pursue the patent case.
But in either instance. SCO's case will not be decided in its favor in
preliminaries.
Going to a jury trial would raise the stakes dearly. Then IBM could really get
mad.
Enderle has given us a clue as to what SCO's legal track will be, and it is to
essentially try to fool people. Like Enderle
We've seen enough of that.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 10:02 PM EDT |
where else can you sue someone based on lies, than base a legal strategy on
having a biased jury. Its a gamble they are willing to take based on a
potential 5 billion dollar jackpot.
goes to show just how broken the legal system is.[ Reply to This | # ]
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- Only in america - Authored by: Anonymous on Friday, April 09 2004 @ 06:11 AM EDT
- Only in america - Authored by: Anonymous on Friday, April 09 2004 @ 08:47 PM EDT
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Authored by: Jude on Thursday, April 08 2004 @ 10:17 PM EDT |
I love it.
First, Rant-for-rent describes a completely infantile "legal strategy"
that might be suitable for a TV situation comedy but would never fly in a real
courtroom.
Then he tells the world that he'd fall for it if he was a juror.
Now I know why Darl's been so quiet lately: He lent his footgun to Robbie.
[ Reply to This | # ]
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Authored by: red floyd on Thursday, April 08 2004 @ 10:20 PM EDT |
Since 'SCO has requested a jury trial of "all issues raised in IBM's
amended counterclaims that are so triable"', wouldn't the Seventh Amendment
guarantee such a trial? I'm assuming the amount at stake is more than $20 US.
---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 10:22 PM EDT |
Enderle has written about this theory before.
He is a troll.
We are feeding him "clicks".
Shame on us.
[ Reply to This | # ]
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Authored by: gdeinsta on Thursday, April 08 2004 @ 10:32 PM EDT |
Consider the following quotations from the article:
I've had
several careers. The first one was with the company now known as The Walt Disney
Co., and the second landed me my first executive title (head of operations by
way of director of marketing). The subsequent falling-out between the partners
who owned that firm led to the third, which was in litigation, with my goal
being that of becoming a judge. I spent about two years training for the
position, but after those two years, I realized it wasn't for me. I did,
however, learn a lot about litigation.
Um, so he spent two years
training to be a judge. Was this before or after he got a law degree? Does
this remind you of MIT mathematicians and millions of lines of
code?
In addition to the training, I was personally involved in
one property ownership trial... everyone involved, including me, went around
armed to the teeth, convinced that assassination was a very real
threat.
Does this remind you of someone hiring
bodyguards?
How would you explain something like the GPL to
them? For anyone over the age of 50, if you buy something, it is
yours.
Does this remind you of someone's repeated and deliberate
mischaracterization of the GPL?
I've been on several juries, and
I've been foreman every time.
Does this remind you of NASA
scientists and spectral analysis?
This concludes my spectral analysis of
Enderle's brain. It's clear that he is working from a script. I leave it as an
exercise for the reader to decide who wrote the script.
But I thought the
stooopidest part was:
Also, in long trials, the jury is made up
mostly of seniors, because they have the time for the court. These folks tend to
be very conservative, they don't understand technical arguments at all, and
their decisions often pivot on values that were put in place in their minds
decades ago. This is only a slight disadvantage in some cases but can be deadly
when litigating finer points of technology. Think of your grandmother or
grandfather. Would they know what open source is? Would they even know what
software is? How would you explain something like the GPL to
them?
Yes, as a matter of fact, I think most people over 50
understand the concept of a good old-fashioned barn-raising. And in their long
lives they've already encountered the shifty little brute, caught where he
shouldn't be, who tries to lie his way out by spreading false and malicious
rumors about upstanding citizens. I'll be 50 in a few months and I don't expect
to have forgotten these things by then.
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Authored by: kb8rln on Thursday, April 08 2004 @ 10:43 PM EDT |
Ok Daryl is now talking about look and feel.
Bride: A lot
of code that you'll be seeing coming on in these copyright cases is not going to
be line-by-line code. It will be more along the lines of nonliteral copying,
which has more to do with infringement. This has more to do with sequence,
organization, which is copyright-protectable. It's interesting when you go down
this path that everyone wants to go to the exact lines of code, but most
copyright cases…
He is something to look at about
software-copyright
. That is the same thing that IBM statement about
201(b) of the copyright law.
Congress attempted to clarify the
situation for computer programs (Rep. No. 473, 94th Cong., 1st Sess. 54
(1975)):
Section 102(b) is intended, among other things, to make clear that
the expression adopted by the programmer is the copyrightable element in a
computer program, and that the actual processes or methods embodied in the
program are not within the scope of the copyright law.
Now
Dayrl is talking about methods in the program plain and simple. There is
nothing else to say. Now let look at Sontag
said.
Sontag: Sure, there may be some of that, but look
at dynamic shared libraries; different operating systems implement these very
differently. But in Linux and System V, they're implemented in exactly the same
way. They could have been done very differently and still accomplish the same
thing.
If you are going to reverse engineer from the
programmer side that you would do the same thing.
I would like help in
finding out how Linux load libraries. What is the same and what is
not.
Thanks
[ Reply to This | # ]
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Authored by: zizban on Thursday, April 08 2004 @ 10:47 PM EDT |
I served on a jury during a fairly long civil case and our jury wasn't filled
with
doddering old people. Many people find jury duty worthy of their time and
serve. Many employers pay you at least part of your missed wages (mine paid
all). The ages on the jury ran from 19 to about 50.
Though the the
testimony was about obscure medical procedures, we, as a
jury, had no problems
grasping the concepts. Expert witness will be quizzed
about everything from
their education to knowledge and their experience.
You have plenty of time to
absorb what needs to be absorbed. After all, it's
not like you have anything
else to do.
If Enderle thinks a jury will be baffled by technobabble and
complex IP law, he
is insulting the jury process. They just won't roll over and
side with SCO
because it was "wronged". Its the the law and the evidence, not a
sympathy
show.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 10:55 PM EDT |
I have sat on two criminal (non-capital felony) trials and one civil (that's
right, civil) grand jury.
From my experience on those juries none of us were "seniors." None of
us were stupid. And all of us paid extreme attention to the proceeding.
Additionally, no one, not nary a soul can predict how a jury will vote.
Enderle purports that he "fact-checked" his concept with SCO Group
Inc. A fact, as we all know, does *not* necessarily mean the truth
(truth-checked, if you will).
krp[ Reply to This | # ]
|
- Civil grand jury? - Authored by: Anonymous on Friday, April 09 2004 @ 04:21 AM EDT
- Yep. . . - Authored by: Anonymous on Friday, April 09 2004 @ 10:19 AM EDT
|
Authored by: Anonymous on Thursday, April 08 2004 @ 11:17 PM EDT |
" ...with my goal being that of becoming a judge.
I spent about two years training for the position,
but after those two years, I realized it wasn't
for me ... "
A statement like this and we are suppose to beleave
that his oppinion on the case is worth something?
I've been ripped off and I want a refund!
George
-----------------------------------------
... everybody's got something to hide,
except for me and my monkey ...
-----------------------------------------
[ Reply to This | # ]
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Authored by: Khym Chanur on Thursday, April 08 2004 @ 11:17 PM EDT |
In the unlikely event that this does go to trial, which portions of the case
would be matters of fact (for the jury to decide), and which portions matters of
law (for the judge to decide). Would what "derivate works" means be
decided by the judge to be what it means in copyright law, or would the jury
have to determine the intent of the the various parties? Who would decide if
SCO's distriubtion of the kernel counted as licensing their supposed IP under
the GPL?
---
Give a man a match, and he'll be warm for a minute, but set him on fire, and
he'll be worm for the rest of his life.[ Reply to This | # ]
|
- OT: Your sig line - Authored by: Anonymous on Friday, April 09 2004 @ 01:13 PM EDT
- No! - Authored by: Anonymous on Friday, April 09 2004 @ 05:14 PM EDT
- No! - Authored by: Anonymous on Saturday, April 10 2004 @ 02:40 AM EDT
- If it were to go to trial... - Authored by: Anonymous on Friday, April 09 2004 @ 04:44 PM EDT
|
Authored by: Anonymous on Thursday, April 08 2004 @ 11:19 PM EDT |
One problem I have about all of these claims about a jury finding for a small
company is SCO's continued claims to have spent "100 million" for
Unix. I
can't see any jury member who would side with a company just for being
small considering a company that claims to have bought something for 100
million dollas to be "small".[ Reply to This | # ]
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Authored by: kbwojo on Thursday, April 08 2004 @ 11:22 PM EDT |
Here is a nice little TWikIWeThey about
Rob
I suggest following the links on the page, some of them provide
some enjoyable reading (at least in my opinion).
[ Reply to This | # ]
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Authored by: SpinyNorman on Thursday, April 08 2004 @ 11:29 PM EDT |
On Morning Edition today Jason Lopez did a story on the Sun-Microsoft
"settlement" and guess who
got a brief interview? You can link to the audio here
if you are interested: NPR
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 11:30 PM EDT |
According to the link PJ posted, here is what it says about Rob
Enderle
Rob Enderle is the principal analyst for the Enderle Group, a
company specializing in emerging personal technology.
Can someone
enlight me what personal technology is?
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 08 2004 @ 11:34 PM EDT |
I'll wager he talks to himself a lot, engaging in imaginary arguments. No, I'm
serious! He's a nut. Certifiable. He reminds of a few folks I've known, and I've
known a few, as I'm nearing that ignorant, doddering old age of 50 that he
refers to. The eyes glaze, the hands gesture, and the hearing shuts down
completely. Not that it ever functions very well.[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 12:00 AM EDT |
Under the heading of stylistic errors, typos, and so
forth:
"Earlier rulings by Judge Kimball have shown that he
doesn't favor the Mormon
church in his courtroom, despite being one himself ..."
Huh?
We can all get caught up in haste when doing important
work, but this ought to be fixed.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 12:01 AM EDT |
I searched around to see what people thought about Enderle and it's quite
obvious he's an idiot and has been from the beginning.
Here's a link
to a sample of what I found.
[ Reply to This | # ]
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Authored by: Nick Bridge on Friday, April 09 2004 @ 12:42 AM EDT |
The thing that struck me most about this article can be summed up neatly in one
word:
Contrived.
He is very clearly stating that SCO needs to convince a jury to ignore facts and
evidence, and that they need to either misunderstand or ignore any legal or
technical facts, to get a win.
Why would that be?
Perhaps he belives - as I do - that IBM have the facts, evidence and legal
understanding on their side.
I guess I'm with Enderle after all... except of course that I believe you'd have
to be mentally incompetant to side with SCO Group.[ Reply to This | # ]
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Authored by: jkondis on Friday, April 09 2004 @ 01:05 AM EDT |
that Groklaw.net gets more hits every week than Enderle's articles. This fact
(maybe fact) alone is a victory for the internet.[ Reply to This | # ]
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Authored by: Totosplatz on Friday, April 09 2004 @ 02:03 AM EDT |
I think that's all they really want to do. McBride has said as much several
times. Curious that Enderle has expressed in this public way the utter contempt
he, and since he "fact-checked" this with Darl & Co, TSCOG have for the
citizen jurors of Utah.
And curious that Enderle seemed to think he
could become a judge after spending "two years in litigation!"
The net
result of this is that Enderle and DiDio will have their credibility wiped out
en toto. --- All the best to one and all. [ Reply to This | # ]
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Authored by: Tim Ransom on Friday, April 09 2004 @ 05:20 AM EDT |
Has learned to embrace the freedom that comes with a complete lack of
credibility - why even maintain a pretense of veracity when the world knows he's
a flack? This has become his swan song. It was just last fall (if I remember
correctly) that he hung up his PR shingle under the euphemism 'unique analyst'.
Trouble is, Bobbo is just the worst PR flack under the Sun! His thumbsucking
narcissism and embarassingly low watt powers of misdirection and mendacity have
resulted in his occupying some convoluted vacuum where the only people reading
him anymore are his many detractors. It has been revealed that Microsoft is a
client of his one man 'group'. Lately, he has taken to whining about blog
culture on top of his bread and butter FUD duties - perhaps he can smell the tar
pits already. There will be no turning back to paraphrasing brochures for lazy
journalists for Bobbo. With each iteration of his ascent into the lightbulb of
professional suicide, his rhetoric gets more inane and factually deficient - you
can practically see his knuckles whiten while he taxes his atrophied lima bean
of a brain to vindicate his hysterical flights of bitter delusion. I doubt when
he accepted this mission that he realized how vehemently his ham fisted
propaganda would be countered. Now, there is no turning back, so he has become a
kamikaze, babbling incoherently and flaming out across the Internet. <BR>
He is now beyond parody, and so is below my radar.<BR>
---
Thanks again,
[ Reply to This | # ]
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Authored by: Simon G Best on Friday, April 09 2004 @ 06:56 AM EDT |
I thought, while reading his article, that Enderle must have never served on
a jury. He seemed to be clearly writing from no personal experience, but merely
from his conceited misperceptions of what juries and jurors are like. (I have
served on two juries here in the UK, so I know what it's really like.)
But then I read this:
I've been on several juries, and I've
been foreman every time.
That frightens me! With his
attitude (which often seems to be one of looking down at the ordinary people
'beneath' him), I dread to think how he ended up becoming "foreman every time."
(I was foreman once.) More importantly, I dread to think how he managed to
(mis)influence the juries he was on as a result of his truly and blatantly
appalling attitude towards juries and jurors.
Surely everyone who has
ever served on a jury knows, from what jurors are told when they do jury service
(or whatever you call it over there), that you do not reach a verdict
until you've heard all the evidence to be
presented to you. But it is clear that Enderle disregards this with
blatant arrogance:
Were someone to ask me right now who I
think is in the right, and I was on the jury with all of the ethical and legal
implications, I would find for SCO.
Think about
it.
Well, I've thought about it, and it's clear to me that
Enderle doesn't realize that being "foreman every time" isn't something to boast
about, but is instead a serious cause for real concern. What's more, for a
person with marketing experience, he's doing an incredibly good job of making
himself appear to be exceedingly arrogant!
--- Has the term 'corporate
insanity' been coined, yet?
[ Reply to This | # ]
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Authored by: blacklight on Friday, April 09 2004 @ 07:19 AM EDT |
"But if SCO is relying for a win based on a prejudiced jury pool of
doddering old people who can't grasp technical arguments and root only for home
team companies, as Mr. Enderle posits, they have hung their legal hopes on a
mighty thin string indeed."
Snip. [ Reply to This | # ]
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Authored by: blacklight on Friday, April 09 2004 @ 07:32 AM EDT |
"If the facts support this simple story, I believe a typical jury will have
a hard time not finding for the small company."
That's the rub.
"SCO is relying for a win based on a prejudiced jury pool of doddering old
people who can't grasp technical arguments and root only for home team companies
..."
This grand scenario relies exclusively on the presumption that the IBM legal
team does not know how to profile jurors and select jurors based on that
profile. It also posits that the IBM legal team does not know how to identify
and weed out true believers like Rob Enderle, who can't be bothered with the
facts, the law, and the facts relevant to the law - and to follow and be
compliant with the judge's instructions as to what the law is.
[ Reply to This | # ]
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Authored by: cricketjeff on Friday, April 09 2004 @ 07:51 AM EDT |
ZDnet has this article briefly outlining a history of copyright violation, note the
comment about the USA... [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 09:21 AM EDT |
When the first waves of MyDoom had happened I read many news articles that it is
a direct attack on SCO. Nowadays, I read in the same newspaper that it was only
a smoke screen. So, I guess SCO would have had a chance to win by a jury in
February , but nowadays everyone sees their lies. I guess even those so called
independent analysts. By the time this goes to trial people will forget the
whole hype. Only the plain facts will remain.
Btw, i don't believe Dion Cornett is independent either :) He appears to be
quite a Linux fan. Like the exact opposite of Laura Didio...
[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 10:23 AM EDT |
It's not foolish to broadcast the strategy at all - if the plan is to
keep the stock price up long enough for the rest of the insiders to finish
cashing out. By appearing to have a legal "plan", SCO is trying to up the
demand for their stock. This also confirms Enderle's status as "paid shill".
I have to think that if Enderle himself thought he could do better, he wouldn't
sell himself out so badly or so baldly. He's either sold his soul because he
knows he can't do any better, or he's too stupid to realize it. Either way, as
a "journalist", Enderle is execrable. [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 10:24 AM EDT |
The following may be considered slightly "off topic" for which, please accept
my apologies. I've been thinking about the developments in the SCO defense of
it's case which now seems to be changing tack. especially with McBride trying to
put forward his "riff" thoery, I think that in future we are going to see a lot
more cases being brought that reflect the following premise: "if it
looks/does the same as mine then, that is theft of my intelectual property"
I think we should watch out for cases that try and legitimise this type of
complaint, especially as I believe there is a train of thinking within the
corporate world working along these lines to find a solution to their FOSS
"problem", and I have to agree that there is plenty of scope for further
"muddying" of the IP waters here to the detriment of FOSS. Consider the
following: If Sun/MS brought a case saying that Open Office infringed the IP of
MS Office and Star Office because it looks similar and functions in a similar
way to create documents. (OK, there probably won't be a Star Office/Open Office
set to right now, but you get the idea), and if you think it's far fetched? then
how can so called sensible people possibly think that Lin---s sounds anything
like Windows? and therefore breach a copyright or a trademark or anything at all
for that matter. Personally I think that this whole sorry pile SCO rubbish
is just an opening shot in some sort of corporate war, we just have to be on our
guard to ensure that if any small victory is gained by those with corporate
vested interests then history will deem it a pyrrhic one. IANAL etc.
etc.
CPW[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 10:39 AM EDT |
the FUD is so thick that it now completely ignores the actual case--this article
was one big generic speculation about what really goes on in a court of law,
and could be applied to ANY case--unlike the Groklaw crowd, who are careful
to say 'IANAL,' Enderle tries mightily to burnish his law credentials (which
basically come down to 'i've been in court a bunch of times')
As PJ and others have said, SCO's case is down to hanging on the flimsiest of
threads, and this article should be seen as such--while Darl & co's
arguments
have deteriorated drastically from 'millions of lines of code' to 'they riffed
on
our ideas,' now their legal hopes are pinned on taking advantage of senior
citizens and xenophobia--pathetic...
what's truly sickening is the way Enderle, Darl and the rest push this crap as
if
they don't have a care in the world--which they don't, because they've got a
hidden partner with a $40b warchest--watch for Darl & co to be hired by M$
after SCO is reduced to a smoldering heap...[ Reply to This | # ]
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Authored by: ajkessel on Friday, April 09 2004 @ 11:17 AM EDT |
An action for declaratory judgment (whether as a claim or counterclaim), does
not preclude a jury trial. I explain here. [ Reply to This | # ]
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Authored by: dmscvc123 on Friday, April 09 2004 @ 11:24 AM EDT |
When I first read the article I thought it was parody bashing SCO and their paid
spokespeople because it was so ridiculous and made Enderle look like such biased
idiot. I think the more attention this guy gets, the more it will make SCO and
their extortion/FUD strategy look like the sham that it is. My only fear is that
with SCO having this guy on their side, who will need Groklaw to make SCO look
foolish.[ Reply to This | # ]
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Authored by: T. ProphetLactus on Friday, April 09 2004 @ 11:59 AM EDT |
1. Small company buys product.
2. Big company steals product.
3. Big company attacks other companies.
4. Small company attempts redress through the courts.
5. Small company gets violently attacked.
6. Profit!!
TPL
[ Reply to This | # ]
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Authored by: olly on Friday, April 09 2004 @ 12:20 PM EDT |
English is not my first language, so I may be completely wrong, but the
phrase "Judges decide those, and he isn't going to be moved by such nonsense
as Enderle proposes" does not sound right to me. IMHO it should be
corrected as
1) It is for the judge to decide those, and he isnt'
...
or
2) Judges decide those, and they aren't ...
or
3) Judges
decide those, and Judge Kimball isn't ...
[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 01:04 PM EDT |
As morally bankrupt as this SCO-fantasy argument is, I suppose some of it is
possible. Obviously this is the kind of jury SCO will be trying to get, and how
they hope to influence them. Ok fine.
Who says that SCO are the only ones who can play that game?
Are you telling me that after all of the impressive legal footwork we have seen
in IBMs filings that they *DON'T* have a smooth-talking emotionally manipulating
bastard on hand to handle the jury when this goes to court? Not that they need
it with the facts on their side, but IBM seems to be pretty good at covering all
their bases so I'd bet they have someone on this base as well.
Hell, they wouldn't even have to be that good. All IBM has to do to discredit
SCO in the eyes of the jury is trot out all the statements that SCO has made. I
don't care how much you think that the little local guy should triumph over the
big mean corporation, if the local guy can't keep his story straight for two
minutes his credibility is shot to hell. If the case gets decided on the jury's
"gut feelings" and not on technical analysis of the facts, I'm sure
that's what they'll base their decision on.
I mean really. SCO's complaint is based on the assumption that Linux couldn't
have grown as rapidly as it did without something (what? they don't know) being
stolen from them. I don't care how technophobic and irrational the jury is,
that is a weak argument.
SCO's appeal that IBM "stole" something from them is laughable. RCU,
JFS, etc were developed ENTIRELY by IBM and Sequent, and now SCO is digging up
an obscure contract clause to lay claim to them? In the eyes of an
emotionally-driven jury who doesn't want to pay attention to technical details
or legal jargon, which company comes off looking worse?
I could go on, but I don't think it's necessary. This is just like every other
item we've seen come from the SCO camp. Even if you accept everything they say,
there's still a million reasons why they're wrong.[ Reply to This | # ]
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Authored by: Superbiskit on Friday, April 09 2004 @ 01:25 PM EDT |
Disclaimer: I haven't read Mr. Enderle's article, only the references
here.
(setf lawyer-p nil)
I'll leave
you with my own facts:
- I started looking at this case out of curiosity
that resulted from a statement from the Linux community that stated that SCO had
no evidence.
- I really didn't care who wins. Linux simply wasn't my
beat. It just seemed impossible that this statement was true, given what little
I knew about the case.
- Over a very short period of time, the Linux
community itself convinced me that SCO would likely win.
- I've been on
several juries, and I've been foreman every time.
Were someone to
ask me right now who I think is in the right, and I was on the jury with all of
the ethical and legal implications, I would find for SCO.
So
here's this guy who has "been on several juries" and he knows how he would find
-- before hearing one single word of legally vetted evidence! Seems as though
that should disqualify him from sitting on any future juries.
And, by the
wayside, what's the real-world probability of being chosen foreman "every
time?"
Not, of course, to imply that being the foreperson indicates any
particular qualification, except for a willingness to stand up in public and
speak the jury's finding.[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 01:45 PM EDT |
You are correct that declaratory judgment actions are decided by the judge, not
the jury. However, when you have common factual issues in a declaratory judgment
count and other jury triable counts in the same case, the law is very clear -
the jury will decide those common factual issues first and the judge will be
bound by that jury determination when rendering a decision on the declaratory
jusgment count. IIRC correctly, this is known as the Beacon Theaters doctrine
taken from the landmark Beacon Theaters case involving this precise issue.
Don't know how this will impact the present case since I haven't reviewed the
pleadings but it's something you should be aware of.
Also, didn't SCO recently move to waive a jury trial on certain counts? [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 02:02 PM EDT |
Really?? It seems a stretch to believe this statement. I know the USA is
litigious, but what are the odds of someone being on "several" juries?[ Reply to This | # ]
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Authored by: bsneed on Friday, April 09 2004 @ 02:41 PM EDT |
I've followed Enderle's career and prognostications for a decade (or more)...for
a long time I kept a paper file of his failures - until it grew so large I threw
it out.
Why anyone would pay him (or any entity he worked for) for "industry
advice" is beyond me. His track record is abysmal. His grasp on technical
issues is tenuous at best and his prejudices are manifold and, I suspect, well
paid for.
...ohhhh well... [ Reply to This | # ]
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Authored by: greybeard on Friday, April 09 2004 @ 02:50 PM EDT |
I get the impression that Mr. Enderle reads too little or too narrowly and
watches entirely too much television. Those Perry Mason reruns and JAG
silliness will get you every time.
---
-greybeard-[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 04:33 PM EDT |
I sent an email to RE, putting forth the somewhat
contradictory remarks of Darl McBride and Mark Heisse.
(These have been pointed out many times on Groklaw).
In particular I juxtaposed DB's claim of sysV code in
linux (line for line copying) and Heise's remarks in
court. RE replied:
_____________________________________________________
When you assume someone is lying you see lies even where
there aren't. Darl's statement is true; I've seen the
actual code. However just because there is copied code
does not mean that IBM put it there, that is why they need
discovery, they need to show that IBM dropped the code
into Linux. It is IBM in court after all. So there is
copied code, who put it there is not yet in evidence and
it is very likely that IBM didn't put all of it in there.
The OSS process, with regard to checking actual ownership,
is known to be rather sloppy and once the SCO action
is done there are a large number of companies, some built
specifically for this purpose, who plan to try their hand.
This will be a mess for some time I'm afraid.
____________________________________________________
The last point, about the line up of anti-linux
litigation companies is interesting. IBM better
do a thorough job on SCO to undercut other weasels.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 04:34 PM EDT |
What’s disturbing about Enderle’s remarks -- about creating a simplistic
argument for a jury overwhelmed by the facts – is that Enderle’s approach
matches EXACTLY the approach likely to be taken by David Boies -- yes, he will
show up (if and) when the trial approaches.
Here’s why I know this: I had the surprise opportunity to attend a lecture this
past Tuesday night given by -- guess who -- David Boies, presented at the R.E.
Lee Chapel at Washington and Lee U. (Boise was standing before the tomb of
General R.E. Lee as he spoke, which struck a bit of an odd note to my ear.)
Boies described, in a general presentation to practitioners, his recipe for a
successful litigation style as "don't focus on the particulars of your
case, because a jury can't understand the details, focus on the big picture,
e.g., the aggrieved rights of the plaintiff, etc"
Sounds to me like Enderle isn’t just surmising, but is “on the team” at SCO and
has been involved in the high-level strategy sessions.
What’s scary about Boies et al is that they don’t care how bad the publicity is,
or how many times they are undressed by emerging facts. They only care about one
thing – getting past the pre-trial motions and getting in front of the jury.
THEN they will put on their show.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 09 2004 @ 05:09 PM EDT |
OK, lots of talk here about how much or little Enderle knows, but it's off
topic. Go back to the outline of the strategy.
Consider that SCO are now
betting the farm [and the company] on this case going to a jury trial. They may
have figured that the facts are stacking up against them and that their best
chance of success is to portray IBM as some big, faceless, thieving company.
Let's be honest with ourselves here - it could happen.
This explains
SCO's strategy perfectly. You see, one thing they know about jury trial is that
they know that once a jury is selected, the Judge will give them very clear
guidelines about "putting out of their minds" any previous material they might
have heard. Yeah, right.
I suggest to you that this is a very carefully
planned and orchestrated attack. SCO are carefully laying some foundation stones
of their own - using the media - to get sound-bites and phrases into the news.
Just little turns of phrase; just the odd quote from Darl McBad. That's
all they need!
Once stories like this have been in the news for
a while, they go below the threshold of conscious thought and into a
'subconscious' level of awareness. Later, trigger phrases can be used to
resurface those memories. Ask yourself, how many times have you heard something
- a phrase, a piece of music, a comment - and just *known* that you've
heard it somewhere before? We all have - it's natural behaviour of the
short-term memory.
This is just a wild theory, and IANAL, but I can't
help think that this is just a really advanced form of softening up a
jury.
Maybe we could give some thought to how we could effectively
neutralizing this, if my suspicion is correct? Obviously getting the truth into
the mainstream media would be a good start. Maybe if we could convince some of
the more 'serious' journalists from the major networks to get interested, they
might be pursuaded to do a segment on the case? Jus' thinkin' out loud here,
peopl'...
[ Reply to This | # ]
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Authored by: BrianW on Friday, April 09 2004 @ 05:36 PM EDT |
<satire>
I don’t want to rain on anyone’s parade, but Enderle’s right. SCO should take
heed of Enderle’s advice. It has been perhaps more than a century since U.S.
courts have considered anything like facts, eye-witness testimony, meticulous
documentation, contract/license verbiage, documented successions of interest, or
even relevant bodies of evidence in determining the outcome of civil cases.
Check every case in the past 100 years, and you’ll find, without exception, that
all it takes to win a civil case is for you to do exactly as Enderle suggests:
* Claim victimhood with respect to the relative sizes of the parties involved.
The small guy ALWAYS wins.
* Portray your side as devoutly religious. The devoutly religious side ALWAYS
wins.
* Portray the other side as greedy and corrupt. The greedy and corrupt side
ALWAYS loses.
* Count on the senior citizen jury pool to produce a stupid jury that is easily
bamboozled. Juries are ALWAYS stupid.
Follow Enderle’s advice, and you won’t need to bother with evidence or legal
theory. Victory in the courtroom will, as Enderle predicts, certainly be yours.
However, if you want to win big, and I mean REALLY BIG, you have to do more.
In order to win untold billions in punitive damage awards and outrageous
attorney’s fees, I humbly suggest that SCO should do the following:
* Begin a vexatious campaign to sue your own customers. This will impress on a
skeptical stupid jury how serious you are about punishing those who use your
products that have been contaminated by the mighty oppressor.
* Use words like “communist” and “terrorist” to describe the other side.
Stupid jurors (especially U.S. stupid jurors) will be forever on your side once
they hear these terms even they don’t convey anything meaningful or quantifiable
about your opponent. (Rule of thumb here: In a U.S. courtroom, one hyperbole
is worth a million facts.)
* Publicly claim to have mountains of evidence. Even publicly claim to have
already turned that evidence over to the other side in court. When the other
side claims in front of a stupid jury never to have received the “mountains of
evidence,” the stupid jurors won’t believe them since their claim will directly
contradict your earlier press releases and well-documented interviews.
* Stall. Stall no matter what, even if things are going your way. The stupid
jurors will appreciate not having to sit on a jury any sooner than they have to
and will thank you with a generous punitive award.
* Run up damages by utterly refusing to mitigate. Although judges may frown on
this and say the law doesn’t allow unmitigated damages, remember that it’s the
stupid jurors (wink-wink) who set the damage awards.
* In discovery hearings, inappropriately argue the merits of your case, even
when the judge has disagreed with you or even told you that you should stop.
This will make you look passionate – and therefore genuinely wronged – about
your case even to the point of ignoring standard courtroom procedure. Stupid
jurors really like that and see it as a sign of sincerity.
* Amend your past SEC filings to include dramatic events that occurred after the
documents’ filing dates. The stupid jurors won’t care about the order in which
things happened. The notion of cause and effect is just too much for the stupid
jurors to comprehend.
* Repeatedly defy court orders, and blame the other side for the delay. If you
could even file a motion that holds the judge culpable for the delay, the stupid
jurors will indignantly rise to your defense against such bureaucratic
conspiracy and corruption.
To be sure, SCO already has it in the bag doing just the four simple things
Enderle suggests. But if SCO could somehow manage to do the additional things I
suggest, their victory in court will be mind-bogglingly astounding. Untold
billions will be awarded if SCO follows my advice.
But, alas, I’m afraid SCO won’t follow my advice, or even Enderle’s for that
matter. I mean, come on, defy a court order? Repeatedly? Sue customers?
Blame the judge? Fail to mitigate? Whom are we kidding here? The SCO
executives, pillars of the community that they are, are too concerned about
their company’s fine reputation to try the kinds of stunts and shenanigans I’ve
suggested. Too bad for them that their incorruptible morality and total lack of
greed will prevent them from doing any of the things I suggest, because they’re
sitting on the makings of a hundred-billion-dollar case
</satire>
Do you think I said “stupid jurors” enough times? :-)
---
//Brian
#define IANAL[ Reply to This | # ]
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Authored by: gleef on Friday, April 09 2004 @ 06:45 PM EDT |
Enderle loses me with step one of his legal strategy.
1. Small Company Buys Product
If someone is trying to get
sympathy from me for being small and being abused by the big boys, they have to,
I don't know, be small. Once you are up to buying businesses from
other companies, you have solidly left the "Small Company" stage in my mind. I
don't think I'm alone in this.
Also, a significant amount of my sympathy
for small companies would come from them investing the sweat of their brow
making something, just for a big company to abscond with it. This sympathy is
gone if someone else sweated to make it, and they just bought it. Again, I
don't think I'm alone in this.
Of course, this all falls apart even
further when you realize that SCO can't even show that they bought the product,
or even give a valid description of what their product is. [ Reply to This | # ]
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Authored by: twhlai on Friday, April 09 2004 @ 10:22 PM EDT |
eetimes.com had an article saying that Dan O'Dowd, CEO of a real-time OS vendor
called Green Hills, claimed that Linux is insecure because "everyday new
code is added to Linux in Russia, China and elsewhere throughout the world.
Everyday that code is incorporated into our command, control, communications and
weapons systems." The article mentions that Jim Ready, CEO of Montavista,
replied that, "Open Source is actually more secure than closed source
proprietary software because the oversight of technology content is broader and
deeper.... That's why the NSA — the most security-conscious organization in the
world — chose to standardize on Linux, and even supplies its own version of
secure Linux."
Note how Green Hill's FUD and total misrepresentation of the Linux kernel review
process resembles SCO's FUD.[ Reply to This | # ]
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