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| SCO's Corrected Motion to Dismiss or Stay |
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Tuesday, April 27 2004 @ 07:48 PM EDT
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Here is SCO's Corrected Motion to Dismiss or to Stay Count Ten of Counterclaim-Plaintiff IBM's Second Amended Counterclaims Against SCO which now matches SCO's Memorandum, which the earlier version did not. This corrected motion does not ask in the alternative that it be separated. And it is silent on Counts 9 and 14, unlike the confusing original motion of earlier today. Here they are sticking to essentially the argument they lost in Red Hat, asserting that there is no case or actual controversy to justify a declaratory judgment with respect to IBM's Tenth Counterclaim. IBM is asking for a declaratory judgment "that IBM does not infringe, induce infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in UNIX are invalid and unenforceable." SCO argues that this means that IBM is "seeking to declare that a person or entity using Linux does not infringe upon SCO's copyrights and that some or all of SCO's copyrights are invalid or unenforceable." Since that is, according to them, the very issue being litigated in the AutoZone case, and it was filed prior to IBM filing its Tenth Counterclaim, the AutoZone case should decide this issue. So they ask the court to dismiss or in the alternative to stay until the AutoZone case is decided. But IBM isn't asking what SCO says they are asking, to my reading. They are asking that IBM's activities with respect to Linux be declared noninfringing. Their "Linux activities" and an autoparts company's activities switching to Linux are not the same at all. IBM has donated code to Linux. They are not just "using" Linux. So their "Linux activities" go beyond mere "use" and are not identical to AutoZone's by a long shot. If AutoZone's case is resolved, would that resolve whether IBM's Linux activities, which include use, reproduction and improvement, not just use, were or were not infringing? I don't see how. Of course, AutoZone has asked that its case be stayed until IBM, Red Hat and Novell get decided. And at least one judge has already ruled that Red Hat should wait until IBM's case is decided, so we seem to be in some kind of a loop. That may be the point of this motion, actually.
***********************************************
Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
David K. Markarian (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for PLaintiff/Counterclaim Defendant
____________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
____________________________________
THE SCO GROUP, INC.,
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant.
______________________________________
CORRECTED MOTION TO DISMISS OR TO STAY COUNT TEN OF THE COUNTERCLAIM-PLAINTIFF IBM'S SECOND AMENDED COUNTERCLAIMS AGAINST SCO
Case No. 2:03CV0294DAK
Hon. Dale A. Kimball
Magistrate Judge Brooke Wells
_________________________________________
Plaintiff/Counterclaim-Defendant The SCO Group ("SCO"), by and through undersigned counsel, hereby moves the Court pursuant to Federal Rule of Civil Procedure 12(b) for dismissal, or, in the alternative, to stay Count Ten of Counterclaim-Plaintiff International Business Machines Corporation's ("IBM") Second Amended Counterclaims against SCO.
SCO bases its Motion on the following grounds:
On March 29, 2004, Defendant/Counter-Plaintiff International Business Machines Corp., ("IBM") filed its "Second Amended Counterclaims Against SCO." In Count Ten of that pleading, IBM added an entirely new claim seeking a declaratory judgment "that IBM does not infringe, induce infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in UNIX are invalid and unenforceable." Paragraph 173. In other words, IBM is seeking to declare that a person or entity using Linux does not infringe upon SCO's copyrights and that some or all of SCO's copyrights are invalid or unenforceable.
These issues are being litigated in a case filed by SCO against AutoZone in federal district court in Nevada; a case that was filed prior to IBM's filing its Tenth Counterclaim. See The SCO Group Inc. v. AutoZone, Inc., Case No. CV-S-04-0237-DWH-LRL (D. Nev. 2004). This newly added counterclaim raises issues separate and apart from the primary breach of contract and other direct claims and counterclaims in this case. Given this fact, and to avoid multiple suits determining substantially similar issues, this Court should decline to exercise jurisdiction over and dismiss Counterclaim Ten. In the alternative, Counterclaim Ten should be stayed pending the outcome in the prior filed AutoZone case. SCO's Motion is supported by the Memorandum in Support of Motion to Dismiss or to Stay Count Ten of Counterclaim-Plaintiff IBM's Second Amended Counterclaims Against SCO submitted concurrently herewith.
DATED this 26rd day of April, 2004.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
David K. Markarian
Counsel for Plaintiff/Counterclaim defendant.
CERTIFICATE OF SERVICE
I hereby certify that I caused a true and correct copy of the foregoing to be mailed, postage prepaid, this 26th day of April, 2004, to the following:
By Email and U.S. Mail:
Alan L. Sullivan, Esq.
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address, email]
By U.S. Mail:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
________[signature]_________
***********************************************************
Here is IBM's Tenth Counterclaim:
Declaratory Judgment of Noninfringement of Copyrights
168. IBM repeats and realleges the averments in paragraphs 1 through 167 with the same force and effect as though they were set forth fully herein.
169. As discussed above, SCO purports to hold copyrights relating to UNIX software.
170. SCO has sued IBM claiming that IBM has infringed, induced the infringement of, and contributed to the infringement of, SCO's purported UNIX copyrights by, among other things, continuing to "reproduce, prepare derivative works of, and distribute copyrighted UNIX materials through its activities relating to Linux".
171. IBM does not believe that its activities relating to Linux, including any use, reproduction and improvement of Linux, infringe, induce the infringement of, or contribute to the infringement of valid, enforceable copyrights owned by SCO.
172. An actual controversy exists between SCO and IBM as to the noninfringement of SCO' s copyrights and the validity of any purported SCO copyrights concerning UNIX.
173. IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable.
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| Authored by: PJ on Tuesday, April 27 2004 @ 08:22 PM EDT |
| Please put corrections in this thread. Thanks. [ Reply to This | # ]
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| Authored by: dkpatrick on Tuesday, April 27 2004 @ 08:34 PM EDT |
It seems clear that SCO wants to delay any movement in the IBM case by queueing
IBM behind every other case they have initiated.
It's taken SCO in unconscionable amount of time to do discovery for IBM. One
would expect them to pull the same tricks on Autozone, delaying any IBM movement
for months if not years.
---
"Keep your friends close but your enemies closer!" -- Sun Tzu[ Reply to This | # ]
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| Authored by: arch_dude on Tuesday, April 27 2004 @ 08:36 PM EDT |
If this is a corrected motion, what does it correct? The prior motion was
related to three of the ammended counterclaims. Therefore, this motion is
ambiguous.
Does this motion ammend the prior motion with respect to IBM's tenth claim, or
does it replace the prior motion, thereby implicitly leaving IBM's ninth and
fourteenth claims alone?
IS this deliberately inept, or are SCOG's lawyers simply a bunch of idiots?[ Reply to This | # ]
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- Their posture - Authored by: Anonymous on Tuesday, April 27 2004 @ 09:33 PM EDT
- What does this "correct"? - Authored by: Anonymous on Tuesday, April 27 2004 @ 09:34 PM EDT
- What does this "correct"? - Authored by: gdeinsta on Tuesday, April 27 2004 @ 09:38 PM EDT
- What does this "correct"? - Authored by: Dan M on Tuesday, April 27 2004 @ 11:36 PM EDT
- What does this "correct"? - Authored by: PJ on Wednesday, April 28 2004 @ 01:36 AM EDT
- Idiots - Authored by: Anonymous on Wednesday, April 28 2004 @ 03:34 AM EDT
- Idiots - Authored by: Stoneshop on Wednesday, April 28 2004 @ 06:06 AM EDT
- Idiots - Authored by: Anonymous on Wednesday, April 28 2004 @ 08:22 AM EDT
- Idiots - Authored by: DL on Wednesday, April 28 2004 @ 10:35 AM EDT
- Obfuscate, Litigate and Dictate. - Authored by: Anonymous on Wednesday, April 28 2004 @ 01:41 PM EDT
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| Authored by: freeio on Tuesday, April 27 2004 @ 08:39 PM EDT |
The question which arises is which judge (or judges) will cut the Gordian knot?
The law progresses slowly, but smart judges are not oblivious to the
prevarications which occur in their courtrooms. The more courts they involve,
the more likely it is that one of the judges will will calmly, dispassionately,
and completely disabuse them of their nonsense.
---
Tux et bona et fortuna est.[ Reply to This | # ]
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| Authored by: crs17 on Tuesday, April 27 2004 @ 08:45 PM EDT |
From a practical point of view (which probably is not often the same as a legal
point of view), what sense does it make to queue the IBM case behind the
Autozone case? In the former case you have two litigants who understand and
care about the issues (or maybe only IBM fits that category). In the latter
case, you have Autozone which would much rather be selling spark plugs and the
like. Why leave a complicated legal issue to a party who really doesn't have
that much of an interest in the case?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 08:45 PM EDT |
They filed the right Memorandum with the wrong Motion...I hope the Court is
laughing as hard as I was when I saw that.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 08:46 PM EDT |
Who is Nediha Hadsehadume?
And why is the this person filing a motion in court for TSG? Is this another
delaying tactic by TSG?
It appears TSG and it's very expensive laywers can't even file anything
correctly.
As an aside, wasn't TSG lawyers already reprimanded for this in one court?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 08:50 PM EDT |
"so we seem to be in some kind of a loop" Maybe the (5?) different
judges will hold a phone conference and decide who shall go first on what. [ Reply to This | # ]
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| Authored by: Mark_Edwards on Tuesday, April 27 2004 @ 08:52 PM EDT |
So SCO would like for everyone (Well IBM) to wait for the
Autozone case but in the Autozone filing they claim they
are still waiting to be told what they are supposed to of
done?!. hmmm Sounds familiar!.
What is it going to take for one of the judges to force
SCO to show their hand? The way this whole farce is going
I can see that we will all still be here in 10 years
waiting for SCO to identify/ prove ownership of these
millions of lines in Linux (lol). (Not that they will be
around in 10 years looking at their stock chart !)
Mark.
[ Reply to This | # ]
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| Authored by: dmscvc123 on Tuesday, April 27 2004 @ 08:53 PM EDT |
As far as I can tell the only way for SCO to survive is to win a court case (and
by that off-chance they might make a fortune) and the sooner that happens, the
better since they've got limited funds that will eventually run out. I don't see
how delays help SCO. The only thing that I can see is that SCO execs want to get
as much money out of SCO for themselves as they can since they think they've got
as much a chance of actually winning as the average Groklawer thinks they have
of winning. Like is this what Baystar thinks of the current crop of SCO execs
and why they are trying to force them out to force the dice to be played one way
or another - where either they win or lose in court and the money goes for legit
legal costs not going to execs looting the company of Baystar's money. I just
don't see what SCO is looking for unless it's the SCO execs looking out for
their own best interests rather than fulfilling their fiduciary duty to their
shareholders.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 08:54 PM EDT |
Can this sort of thing be used against SCO ?
It seems to be based on the premise that no one will know what's happening in
the other federal courts ( and why, in the age of Groklaw, would they be
thinking anything of the sort ).[ Reply to This | # ]
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| Authored by: kberrien on Tuesday, April 27 2004 @ 09:06 PM EDT |
I can see it now....
Judge: "I would appear your asking that all cases be stayed for the
forseable future, and none of your litigation be decided."
SCO: "That would suit us just fine your honor."
[ Reply to This | # ]
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| Authored by: sjf on Tuesday, April 27 2004 @ 09:07 PM EDT |
Maybe they are smarter than we think. Could have some reason to prefer the
autozone case? After all if they can win the copyright case against Autozone,
and convince the Judge in the IBM case to accept it. They are in a much better
position.
Is Nevada law more friendly to their claims? Maybe they like the Judge
better? Or is just that the Autozone lawyers aren't as daunting in the IP arena
as IBM's?
Then again maybe they are just trying to delay the inevitable.[ Reply to This | # ]
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| Authored by: aqua on Tuesday, April 27 2004 @ 09:09 PM EDT |
So let me see if I got this straight, SCO wants the judge to stay IBM, a case
they started in 2003, for a case that they started in 2004?
So what happens in 2005? SCO sues -insert user X here- and stays the autozone
case while that new case is pending?
Interesting....
Can someone stop the merry-go-round I want to get off. :)
[ Reply to This | # ]
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| Authored by: kawabago on Tuesday, April 27 2004 @ 09:12 PM EDT |
They know they can't win, that is why they keep amending their case. Microsoft
is paying Darl & company to create FUD about linux to slow it's adoption
until MS's next product hits the shelves. That is the only thing that explains
the whole circus. Darl & co. don't care about SCO or UNIX, they're just
making money on the inflated stock and they're being overpaid while they do it.
Consider SCO stock the successor to timeshare condos, a great deal only for the
seller.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 09:14 PM EDT |
| ...when he explained the Magic Miracle Briefcase. He said something about
"never give the sucker an even break" or "don't let the defendant know what he's
being sued for" or something like that--it's the American Way (tm).
Bleppo
announced to the world that SCOG's intention is to play a shell game with the
legal system. We can expect lots of motions on the theme "It's not proper to
talk about that in this case because of that case." In December, SCOG talked
about three buckets, the usual number for the classic shell game: now they are
up to five buckets (cases).
--Bill P [ Reply to This | # ]
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| Authored by: bilby on Tuesday, April 27 2004 @ 09:18 PM EDT |
Motions are piling up. When can we expect some rulings on them? What is
typical court procedure? Does the judge wait until discovery is over before
ruling on any of the motions, and then rule on them all at once? Or does he/she
rule on a few at a time? What is the typical chain of events in a civil court
case? I guess from these basic questions that it's pretty obvious that IANAL
:o).[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 09:24 PM EDT |
Scare and stall. Hope the judge is getting as tired of this as the rest of us.
<sigh>
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 09:29 PM EDT |
<joke>
Let's see, now IBM's case depends on Autozone's, but Autozone's case
depends on IBM's and Novell's and RedHat's, ... IBM's case depends on
Novell's and RedHat's ...
SCO now is dropping copyright claims and keeping patent case with IBM's
where they are a defendant, ... then they will try to argue that IBM is trying
to
sue them over unsustanciated claims .. then when SCO drops to 1, buy back
stock and show claims, bringing stock up all the way up to 350... to buy MGM
so they can make the movie 'How to buy UNIX for less than $100M and own
the computer world' and 'Sue your way to the top', then sell the movie to all
the Linux geeks for $19.99.
Well enough.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 09:30 PM EDT |
SCO told the Red Hat court (and Red Hat were the first to file a claim relating
to whether Linux infringes any SCO copyright), that copyright issues would be
decided in the IBM case.
The Red Hat court decided to stay the Red Hat case, without a motion, debate or
discussion, presumably based on this.
Red Hat have asked, that their case be re-awakened.
Now SCO is telling the IBM court, that copyright issues relating to Linux should
not be determined in the IBM case, but instead be stayed until the AutoZone
case. In other words, they are contradicting their earlier filing in the Red
Hat case.
In Autozone's motion, we discover that Autozone is infact using Red Hat Linux!
So they want to litigate (against Autozone not Red Hat) that Red Hat linux
infringes their copyrights. But they don't want to litigate against Red Hat
that Red Hat linux infringes their copyrights.
What's wrong with these people?
I don't see the IBM issues are the same as Red Hat or Autozone in any case, so I
don't believe the IBM issues should be stayed. In any case, IBM is not a party
to Autozone litigation.
Regardless or even if (unlikely) IBM litigation were stayed on copyright, the
fundamental copyright issue in both Autozone and Red Hat is whether Red Hat
Linux infringes. This suggests the Red Hat case should come before Autozone, or
alternaatively be joined to the Autozone case.
[ Reply to This | # ]
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| Authored by: DaveAtFraud on Tuesday, April 27 2004 @ 09:42 PM EDT |
Novell goes first. Until SCOGgy types show that they actually own the
copyrights they are suing over, none of the other cases make sense since none
can reach a conclusion. At worst, Autozone refiles for a stay asking
specifically that SCOG's slander of title suit with Novell be settled before
their case proceeds. SCOG can't sue for infringement of something they can't
prove they own.
This could explain the somewhat bizarre nature of the SCOG suit against Autozone
since certain copyrights were transfered to Caldera by the APA and ammendments
but these were primarily for Unix documentaion. These are the only Unix related
copyrights that SCO (nee Cladera) has any chance of showing were actually
conveyed. That they have *nothing* to do with Linux source code doesn't seem to
have stopped the SCOflaws from citing them to bolster their fraudulent claim.
Thus, SCO's suit against Autozone listing a bunch of copyright registrations for
*documents*.
---
Quietly implementing RFC 1925 wherever I go.[ Reply to This | # ]
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| Authored by: m_si_M on Tuesday, April 27 2004 @ 09:47 PM EDT |
can anybody tell me why SCO filed a motion which had to be corrected within a
few hours?
If their lawyers are worth the tons of money they receive, they should be
expected to do their job better!
I'm no friend of conspiracy theories but ... couldn't this simply be a move
making the Grokkers (and others) waste their time and energy? Or is all we
witness nothing but sloppy work?
---
C.S.[ Reply to This | # ]
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| Authored by: Lev on Tuesday, April 27 2004 @ 09:54 PM EDT |
SCO actually recognizes that IBM's Linux activities include donating code to
Linux, unlike AutoZone's:
[3] The only issue that arguably would not
be decided by the federal court in Nevada is whether IBM's improvements to Linux
infringe upon SCO's copyrights. If this Count Ten was merely based on
infringement arising from IBM's improvements to Linux, then SCO would not have
sought dismissal or a stay. In fact, the issue of impropriety of IBM's
improvements to Linux is part of the basis for IBM's Ninth Counterclaim,
also entitled "Declaratory Judgment of Noninfringement of Copyrights," which
arises out of IBM's distribution of AIX and Dynix. (§ 165). SCO did not move
to dismiss or stay that count.
But that last part of this footnote
seems to me to be a figment of their imagination. This is from the ninth
counterclaim:
167. IBM is entitled to a declaratory judgment
pursuant to 28 U.S.C. § 2201 that IBM does not infringe, induce the infringement
of, or contribute to the infringement of any SCO copyright through the
reproduction, improvement, and distribution of AIX and Dynix, and that some or
all of SCO' s purported copyrights in UNIX are invalid and
unenforceable.
No mention of Linux improvements whatsoever.
Perhaps to SCO, distributing JFS and RCU means distributing AIX and Dynix, but
I'm sure IBM didn't mean that. Even if it did, however, it still wouldn't cover
all IBM's contributions to Linux, because some of them have no connection to AIX
or Dynix (such as IBM zSeries support).[ Reply to This | # ]
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| Authored by: darkonc on Tuesday, April 27 2004 @ 10:03 PM EDT |
| The PDFs are split up and on my site. Claim
a page (or the whole document) if you intend to transcribe. ---
Powerful,
committed communication. Touching the jewel within each person and bringing it
to life.. [ Reply to This | # ]
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| Authored by: bbaston on Tuesday, April 27 2004 @ 10:05 PM EDT |
Well, SCO can't seem to make up their mind about what to complain about.
Do you realize that if SCO's motion is accepted, the Judge will have agreed that
SCO, by filing a lawsuit, has successfully delayed facing the music in its IBM
trial? What kind of president does that set?
1. Get in hot water in its IBM suit
2. File another remotely similar law suit on the problem issue
3. Claim the new law suit should be settled before facing that remotely similar
issue from Big Blue
4. Go to step 1.
5. Repeat until BillG says stop.
---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO, {;)}
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,[ Reply to This | # ]
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| Authored by: Cal on Tuesday, April 27 2004 @ 10:09 PM EDT |
All this does is settle the question once and for all that this is nothing more
than a contractual dispute. TSG says that their copyright claim concerns only
the distribution of AIX/Dynix since IBM's rights were 'revoked'. They have no
patent claims, no matter their bluster about methods, and everything else is
trade secrets they think should have been held confidential based on their
reading of the contract (i.e. derivative works). Thankfully, they have come
right out and cleared up their stance on the copyright issues with IBM in this
motion, so I am sure we won't be hearing any more from Darl about how IBM copied
code into Linux (yeah, right!)[ Reply to This | # ]
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| Authored by: red floyd on Tuesday, April 27 2004 @ 10:19 PM EDT |
| Steve Levy in Newsweek on the
case. He does make a few factual errors, such as claiming SCO sued
"AutoMall". ---
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: LarryVance on Tuesday, April 27 2004 @ 10:48 PM EDT |
I just noticed that this legal proceeding does seem to be Hatched and that
Dodging is the way it seems to go. What an appropriate name for a legal firm.
---
IAAE - TGIANAL
Larry Vance[ Reply to This | # ]
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| Authored by: kpl on Tuesday, April 27 2004 @ 11:28 PM EDT |
Why do I get the distinct feeling in the deep dark pit of my stomach, that
something is up that none of
us has seen with this? Smokescreen to cover
something else? Nah, can't be - I'm just being paranoid
:-)
---
--------------------
mv sco /dev/null
-------------------- [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 27 2004 @ 11:48 PM EDT |
If SCO had some System V code in Linux that they could claim as theirs, and was
there unauthorized, they would be EAGER to litigate it against IBM, Red Hat, or
any other party.
The fact they don't have it, is why they don't want to litigate this issue,
except against AutoZone, who they think is in not a position to determine the
origin of any code in Linux.
This is why they don't want to litigate whether IBM's Linux activites infringe
their copyrights. They know that IBM can defend this charge and win.
This is opinion is further reinforced by Sontag's recent declaration.
Read what he says.
He says they have System V code in AIX/Dynix (Item 6 in his declaration).
He says they have AIX/Dynix code (or AIX/Dynix like code) in Linux (Item 5 in
his declaration).
He says that he thinks that he may be able to find more of both, if given more
time and resources and/or given access to even more IBM materials.
No where does he say that the System V code in AIX/Dynix, has been moved into
Linux via AIX/Dynix.
Thus he thinks that he can claim, that IBM breached their license, by
contributing IBM's own code into Linux. He thinks that can then claim that SCO
rightfully revoked their irrevokable license (I have no idea how). And he
thinks he can then claim that IBM's continued distribution of AIX is, after the
revokation, a copyright infringement, because AIX contains some System V code.
Thus SCO's current theory of the IBM case, doesn't involve a copyright
infringement by IBM's Linux activities. Simply because they can't present any
System V code in Linux (even assuming of course that SCO owns the relevant
copyrights which seems doubtful in itself).
So we get to AutoZone...
I have no idea how SCO expect to prove copyright infringement by AutoZone, when
they can't identify any of their own code in Linux, in either the Red Hat or IBM
case. Perhaps they imagine if they can win their contract claim about IBM's own
code being contributed to Linux, they can some how convince the Autozone court
that they won a copyright claim against IBM. Perhaps they imagine that they win
the AIX copyright claim, they can somehow convince the Autozone court that they
won a claim about Linux copyrights. Perhaps they imagine that AutoZone will
just give in.
[ Reply to This | # ]
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| Authored by: Khym Chanur on Tuesday, April 27 2004 @ 11:57 PM EDT |
| A very unlikely scenario, but what if AutoZone were to cave in and settle out of
court? That would set not legal precedent, so the issue of Linux infringement
would have to be solved in the IBM case, right? ---
Give a man a
match, and he'll be warm for a minute, but set him on fire, and he'll be warm
for the rest of his life. [ Reply to This | # ]
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| Authored by: moogy on Wednesday, April 28 2004 @ 12:09 AM EDT |
Someone help me out here.
SCOG is now saying that their case, of breach of contract,
has nothing to do at all about IBM contributing AIX code to
Linux, but that it's about IBM continuing to distribute and
sell AIX after SCOG 'terminated" IBM's license.
Is this what they're saying? If so, then just what was the
need for the AIX code discovery that SCOG demanded?
The code itself would shed absolutely no light upon the issue
of whether IBM continued to sell and distribute AIX. It
would be completely irrelevant.
Surely I misunderstand.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi
[ Reply to This | # ]
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| Authored by: blacklight on Wednesday, April 28 2004 @ 03:29 AM EDT |
I believe that SCOG's requests to split off the IBM patents counterclaims plus
splitting off the copyrights claimn from the IBM trial, would if heeded by Judge
Kimball, increase by an order of magnitude the complexity of his job, which is
to manage the IBM trial. Judge Kimball's predicament will be that much more
acute, given that SCOG as a litigant has a record of amending its pleadings
every few weeks - and no one expects SCOG amending activities to be confined to
Judge Kimball's court. If Judge Kimball values his sanity, he should deny all of
SCOG's request and make sure that SCOG's hands and pockets are well within his
eyesight at all times.[ Reply to This | # ]
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- May 11 - Authored by: codswallop on Wednesday, April 28 2004 @ 04:10 AM EDT
- May 11 - Authored by: Wol on Wednesday, April 28 2004 @ 07:36 AM EDT
- May 11 - Authored by: Baldy on Wednesday, April 28 2004 @ 12:40 PM EDT
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| Authored by: Anonymous on Wednesday, April 28 2004 @ 05:09 AM EDT |
Well, following the divers cases SCO fights, I come to the very humble
conclusion (IANAL), that SCO deliberately created a Spaghetti Knot of
littigation.
They do sue various companies in various US States for various reasons. Using
careful timing, they can prolong their actions more than by suing sequetially,
because they can always wait for another court. Sounds like a classical
deadlock-scenario to me. The only way to unravel this knot is to carefully
splitt off claims in the right order for the SCO-opposing parties. Which
certainly needs kind of synchronization between those parties.
RHAT did not really help matters in suing SCOX. Because it presented SCO with
the unique possebility to complicate the cases and win time even more.
So Autozone, DaimlerChrysler, IBM and RedHat should really stick their heads
together.
BR [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 28 2004 @ 05:23 AM EDT |
IBM tries to declare SCO copyrights invalid by bundling the request for such
declaration together with the complete separate issue that "other
entities" like AutoZone are not induced to infringe SCO copyright by IBM's
activities in respect to Linux.
It's a poorly-crafted trap and too obvious not to notice:
- IBM is violating SCO copyright through the continued shipping of AIX after the
expiration of its license;
- Linux is violating SCO copyright for other reasons ( ABI files) not
necessarily attributable to IBM Linux-activities.
Not necessarily though not excluded.
But neither claimed so far and thus irrelevant to require a declaratory judgment
concerning that matter.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 28 2004 @ 08:58 AM EDT |
I was wondering...
Could SCO's goal be to have the copyright issue decided in the courtroom with
the least capable defendant ? And then use the decision from that courtroom as
precedent in all the other cases.
Winning the copyright issue against Red Hat, IBM or Novell takes a lot of skill,
as those 3 companies have a lot of stake, and therefore is willing to invest
more resources into legal expertise. Red Hat, IBM and Novell also have a lot of
technical knowhow on the issue.
It seems to me that Autozone probably isn't capable of putting up the same fight
as IBM, Novell or Red Hat in a courtroom. ie, they are an easier opponent. And
the first ruling on copyrights could be the only one ( ? )
Only guessing though..[ Reply to This | # ]
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| Authored by: midow on Wednesday, April 28 2004 @ 09:16 AM EDT |
Is it just me, or is SCO's expensive, top-shelf legal team seemingly performing
like a bunch of first-year law students? Or is their performance so bad that
that comparison is unfair to first-year law students? It seems that if you have
a weak case, you need strong lawyering, and obviously SCO has both a weak case
and inept lawyers.(*coughkevinmcbridecough*)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 28 2004 @ 10:00 AM EDT |
I'm sure someone has brought this up before, but just in case:
Is it possible that SCO Group could appeal this whole ordeal on the basis of
poor legal counsel? Then use the knowledge they gain from this initial 'trial'
to their advantage in the appeal?[ Reply to This | # ]
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| Authored by: utahbob55 on Wednesday, April 28 2004 @ 11:17 AM EDT |
OK I have been reading all the SCO shenanigans for almost a year now.
<disclaimer>The following is my personal opinion</discalimer>
(yes I'm shouting!) How on earth does anyone invest in a company that runs
it business like this one. What's more, do you actually expect a return on your
investment? Mr. Enderle and Ms. DiDio _must_ be getting paid under the table
because no one in their right mind would support a company like this. They have
alienated everyone, including investors. <tinfoilhat>I therefore
have to believe all the conspiracy and pump and dump theories that have been
posted on this site!</tinfoilhat> It's the only logical postition. Of
course maybe logic has nothing to do with this.... Just had to say it! [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 28 2004 @ 12:26 PM EDT |
SCO's tactics of intentional goof-ups (like misfilings etc) are just the result
of their overall strategy, which is to delay things as much as possible.
Remember, that salaries are collected for each day this charade keeps on going,
lots of them: SCO managment and the their lawyers.
A trial, when it happens, will terminate these salaries with extreme prejudice
:-)
When this goes to trial...and I absolutely hope it does, SCO WILL lose, (Mr.
Enderle can be totally disregarded here)
They will lose in court and in the business world. On that day, they should be
selecting an appropriate tombstone and epitaph for themselves.
I also hope that IBM keeps on digging into the cause of this the sco lawsuite,
and that they find a way to nail a big "kick me" sign on microsnot's
back.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 28 2004 @ 12:48 PM EDT |
There is an article on linuxinsider from enderle, it seems he isn't so sure
anymore that SCO has a chance to win. He also sees some looming clouds over
baystar.
[ Reply to This | # ]
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| Authored by: jwrl on Wednesday, April 28 2004 @ 04:42 PM EDT |
I ran the motion through a Jive filter
<FUN>
Hon. 'S coo', bro. Dale A. Kimball
Magistrate Judge Brooke Sheeits
_________________________________________
Plaintiff/Counterclaim-Defendant De SCO Grodown ("SCO"), by and drough
undersigned counsel, hereby moves de Court pursuant t'Federal Rule uh Civil
Procedure 12(b) fo' dismissal, o', in de alternative, t'stay Count Ten uh
Counterclaim-Plaintiff Internashunal Business Machines Co'po'ashun's
("IBM") Second Amended Counterclaims against SCO.
SCO bases its Moshun on de followin' grounds, dig dis:
On March 29, 2004, Defendant/Counter-Plaintiff Internashunal Business Machines
Co'p., ("IBM") stashd its "Second Amended Counterclaims Against
SCO." In Count Ten uh dat pleadin', IBM added an entirely new claim seekin'
some declarato'y judgment "dat IBM duz not infrin'e, induce infrin'ement
of, o' contribute t'de infrin'ement uh any SCO copyright drough its Linux
activities, includin' its use, reproducshun and improvement uh Linux, and dat
some o' all uh SCO's purpo'ted copyrights in that slow mo-fo are invalid and
unenfo'ceable. What it is, Mama!" Paragraph 173. In oda' wo'ds, IBM be
seekin' t'declare dat some sucka' o' entity usin' Linux duz not infrin'e downon
SCO's copyrights and dat some o' all uh SCO's copyrights are invalid o'
unenfo'ceable. What it is, Mama!
Dese issues are bein' litigated in some case stashd by SCO against AutoZone in
federal district court in Nevada; some case dat wuz stashd prio' t'IBM's filin'
its Tend Counterclaim. 'S coo', bro. See De SCO Grodown Inc. v. Man! AutoZone,
Inc., Case No. CV-S-04-0237-DWH-LRL (D. Nev. Man! 2004). Dis newly added
counterclaim raises issues separate and apart fum de primary breach uh contract
and oda' direct claims and counterclaims in dis case. What it is, Mama! Given
dis fact, and t'avoid multiple suits determinin' substantially similar issues,
dis Court should decline t'exercise jurisdicshun ova' and dismiss Counterclaim
Ten. 'S coo', bro. In de alternative, Counterclaim Ten should be stayed pendin'
de outcome in de prio' stashd AutoZone case. What it is, Mama!
SCO's Moshun be sdownpo'ted by de Memo'andum in Sdownpo't uh Moshun t'Dismiss o'
t'Stay Count Ten uh Counterclaim-Plaintiff IBM's Second Amended Counterclaims
Against SCO submitted concurrently herewid.
DATED dis 26rd day uh April, 2004.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Mark J. Heise
Issac K. Markarian
</FUN>[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 28 2004 @ 07:50 PM EDT |
If I was IBM, I would respond that IBM expects that TSG intends to turn this
case into another O J Simpson trial as Darl McBride has publicly stated.
The IBM requests for declaratory judgments prior to selecting a jury would
also prevent the replay of standard Boies techniques to continually introduce
irrelevant and inadmissible information before the susceptible jurists. IBM's
request of declaratory judgment prior to trial is IBM's best chance to limit
this $5 billion decision to legitimate facts of law rather than a circus act.
For example, TSG continues to make public statements and issue publicity
releases claiming copyright infringement. In spite of their offered evidence
being proven hoaxes, TSG continues to publicly reiterate their disproven
statements months later. TSG continues to repeat the same set of lies,
disinformation, and legal strategies as their public mantra. IBM fully expects
TSG to keep repeating this to jurists in spite of IBM protests.
Another example, TSG executives have publicly stated that TSG can win in
front of any jury in Utah by painting TSG as a small innocent local business
whose business has been stolen by a big East Coast corporation. Further,
TSG executives have publicly compared their TSG jury strategy to the O J
Simpson case.
Declaratory judgments keep the external publicity sideshow out of bounds
for TSG courtroom antics. These judgments frame known facts for the jury.
In violation of two court orders and in spite many court extensions, TSG has
failed to provide any System V files and lines of code in Linux. The TSG
failure is conclusive evidence that no direct copying occurred. Would the
court legally state the obvious for the benefit of the actual trial (and
several
other TSG cases).[ Reply to This | # ]
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