|
|
| SCO v. IBM: ORDER RE BRIEFING FOR PENDING MOTIONS - as text |
 |
|
Friday, May 07 2004 @ 02:45 AM EDT
|
There is an order by Judge Kimball, dated May 6, stating when IBM and SCO each need to submit briefs regarding SCO's two motions, the Motion to Dismiss and the Motion to Amend the Scheduling Order. The parties agreed to the due dates. Obviously, IBM is opposing both motions, so they are to put in a memorandum in opposition to each motion by May 14, and then SCO gets until May 28 to reply with a memorandum in support of each.
The Motion to Dismiss is the one about Counterclaim 10, in which IBM seeks 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." That is the one SCO wants dismissed or stayed until the AutoZone case is decided: "Count Ten presents issues already before another federal court, and, on that basis, should be dismissed or, at a minimum, stayed pending the outcome of the prior filed AutoZone case pending in Nevada." The Motion to Amend the Scheduling Order is the one where SCO is asking for more time: "SCO has moved to amend the Scheduling Order to extend certain deadlines in this case. Good cause exists to grant SCO's motion because: (1) after the Scheduling Order was entered, IBM filed 10 counterclaims, including 4 claims for patent infringement [1]; (2) discovery in this case was effectively stayed for four months; and (3) IBM's untimely reponses to discovery have hindered orderly prosecution of the case." I expect IBM will have something to say about that last point. SCO asked that the fact discovery deadline be changed to May 18, 2005; the expert discovery deadline to July 15, 2005; the deadline for filing dispositive motions to July 27, 2005; the deadline for disclosure of 26(a)(3) materials to August 3, 2005; the deadline for the special attorney conference and for the settlement conference changed to August 15, 2005; the final pre-trial conference to approximately August 30, 2005; and the trial period to approximately September 15, 2005.
***************************************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
__________________________________
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
_________________________________
ORDER RE BRIEFING FOR PENDING MOTIONS
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
_________________________________
Based on the stipulation of the parties, and good cause appearing, IT IS HEREBY ORDERED as follows:
IBM's Memorandum in Opposition to SCO's Motion to Dismiss shall be due on May 14, 2004;
IBM's Memorandum in Opposition to SCO's Motion to Amend Scheduling order shall be due on May 14, 2004;
SCO's Reply Memorandum in Support of its Motion to Dismiss shall be due on May 28, 2004.
Sco's Reply Memorandum in Support of its Motion to Amend Scheduling Order shall be due on May 28, 2004.
DATED this 6th day of May, 2004.
BY THE COURT:
________[Signature]_______
United States District Court
APPROVED AS TO FORM:
SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy
CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott
BY: ________[signature]________
Counsel for Defendant International
Business Machines Corporation
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark R. Clements
BY: _______[signature]__________
Counsel for Plaintiff
United States District Court
for the
District of Utah
May 6, 2004
* * CERTIFICATE OF SERVICE OF CLERK * *
Re: 2:03-cv-00294
True and correct copies of the attached were either mailed, faxed or e-mailed by the clerk to the following:
Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]
Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
Mr. Alan L. Sullivan, Esq.
SNELL & WILMER LLLP
[address]
Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]
Mr. Kevin P McBride, Esq.
[address]
Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
|
|
|
|
| Authored by: Steve on Friday, May 07 2004 @ 02:54 AM EDT |
Chutzpah is the only possible word to describe SCO's attempt to
blame IBM for delays in discovery.
Amazing.
---
IAALBIANYL[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 03:03 AM EDT |
It's agonising to watch the slow motion legal dance as it drags on.
I hope IBM gets this buried soon.[ Reply to This | # ]
|
| |
| Authored by: SkArcher on Friday, May 07 2004 @ 03:14 AM EDT |
As far as I'm aware, the only delay IBM have been a party to asking for has been
the joint request between SCO and IBM where, if the delay hadn't ahppened SCO
would have failed to meet the discovery deadline due to their intransigence over
the christmas holidays.
Could we do a swift compare/contrast over the timeline of SCO delays versus IBM
inspired ones?
---
irc.fdfnet.net #groklaw[ Reply to This | # ]
|
| |
| Authored by: paul_cooke on Friday, May 07 2004 @ 03:46 AM EDT |
The Motion to Dismiss is the one about
Counterclaim 10, in which
IBM seeks 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." That is the one SCO wants dismissed or
stayed
until the AutoZone case is decided:
"Count Ten presents issues
already before another federal
court, and, on that basis, should be dismissed
or, at a
minimum, stayed pending the outcome of the prior filed
AutoZone
case pending in Nevada." Does this
mean that if they can get
that count dismissed, then they
can go to the other court and say that that
issue has been
dismissed in another court so should be dismissed here???
---
Use Linux - Computer power for the people: Down with cybercrud... [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 04:05 AM EDT |
One thing I've noticed is that this judge doesn't like stupid delays much.
For example, in one copyright court case he said that the plaintif had waited
too many years to bring a case. In the recent judgement against the ACLU he
denied their request for a temporary injunction because they A) didn't claim to
meet any of the requirements for a temporary injunction and B) delayed for
months rather than ask for it they should have.
Judge Kimbal is proud of the fact that he doesn't waste the courts time. He
issues his judgements pretty quickly compared to other judges. This saves money
for everyone involved in the trial.
[ Reply to This | # ]
|
| |
| Authored by: inode_buddha on Friday, May 07 2004 @ 05:31 AM EDT |
You can find the original documents on Lexis-Nexis and PACER if you have a paid
subascription. TuxRocks (Frank AKA Newsome) is providing them as a courtesy, out
of pocket as far as I know. If somebody would like to post an analysis, that
would be most welcome.
---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 06:28 AM EDT |
As far as I can see from the legal texts you provided, this case covers just
Unix 32V. But after that USL developed Unix System III and System V.
Of course this was based at least in part on 32V but it is safe to assume that
System V contains copyrighted code created by USL which is not covered by that
lawsuit. So when Novell bought USL, they also have acquired these additional
copyrights and may possibly have transferred them to (old) SCO (dependent on the
outcome of SCO vs. Novell).
TToni
P.S.:
The Unix-Timeline chart I referred to is here:
http://opensource.erde3.net/sco-vs-ibm.html#id2788824[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 06:32 AM EDT |
Don't confuse "untimely" with "not timely":
un·time·ly adj.
1. Occurring or done at an inappropriate time;
inopportune.
2. Occurring too soon; premature: an untimely death.
IBM's replies certainly occurred too soon for SCO - it negates another possible
excure for more delays in the case.[ Reply to This | # ]
|
| |
| Authored by: codswallop on Friday, May 07 2004 @ 06:32 AM EDT |
This opinion was in regard to not granting a preliminary injunction, if I
remember. The Judge said how he would probably rule were he called to do so and
why. I'm don't think in these circumstances SCO is estopped from relitigating
the matter, particularly as they're not a successor company to Novell, and the
code at issue is slightly different.
The Judge said:
"Consequently, I find that Plaintiff has failed to demonstrate a likelihood
that it can successfully defend its copyright in 32V. Plaintiff's claims of
copyright violations are not a basis for injunctive relief."
I do think that Judge Kimball could could draw on this opinion if he wanted to.
Certainly the surrounding documentation such as the depositions are evidence.
Some of the depositions are very damaging to SCO's view of the AT&T
agreements.
What the Berkeley Judge said about trade secrets is also interesting and I
suspect SCO is following his logic. The remark was with regard to trade secrets.
But the logic can be used with SCO's view of the agreements as well.
"On the other hand, even if Defendants are correct, it is not clear whether
32V is publicly available in a form suitable to BSDI's purposes. There is an
enormous difference between an expert programmer sitting down with a pile of
textbooks and disjointed segments of code to write out an operating [*51]
system from scratch, and that same programmer downloading the operating system
intact from a public network. In the first case, the programmer could expend
large amounts of time writing, testing, and debugging the newly-created system,
with an uncertain prospect of immediate success. But in the second case,
immediate success would be virtually assured. Thus, even if all of the pieces of
the 32V code had been thoroughly revealed in publicly-available literature, the
overall organization of the code might remain a trade secret unless it too had
been disclosed." [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 07:55 AM EDT |
| Please reply to this message with new links
of interest to Groklaw readers.
This makes
it easy to find them. Please try to use the
HTML Formatted mode to
make it easy to click
on a link and follow it directly to the article
of
interest.
This is also the place to start discussions
unrelated to the
topic(s) of the article.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 07:56 AM EDT |
| Please reply to this comment with corrections, typos, etc. [ Reply to This | # ]
|
| |
| Authored by: kberrien on Friday, May 07 2004 @ 08:08 AM EDT |
Short of SCO dropping claims again...
When is our next big event in this case, any motions due to be decided (soon),
open court hearings?[ Reply to This | # ]
|
| |
| Authored by: arch_dude on Friday, May 07 2004 @ 09:52 AM EDT |
IANAL, but from reading GROKLAW it appears that cases are generally dismissed,
stayed, or joined when it increases judicial efficiency. SCOG is attempting to
get IBM's request for a declaratory judgment (count 10) dismissed on these
grounds.
However, the truth is that Judicial efficiency is much better served here by
considering IBM's request in THIS court, because this court has already ordered
SCOG to produce the evidence that will be needed to establish any rights they
may have in Linux. Therefore, it should be trivially easy for the judge to rule
on the declaratory judgement. This is much more efficient than re-doing
discovery in another court.
Judge: "Show me the evidence that you were ordered to produce."
SCOG: "Duh...."
Judge: "SCOG has no rights in Linux other than these (non-SVRx) files they
GPL'ed. IBM's request for declaratory judgement is hereby granted."[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 10:15 AM EDT |
| Just a thought... If Microsoft is behind SCO, and IBM has gotten
enough in discovery to pierce the corporate veil and trace SCO's actions all the
way back to Microsoft and maybe even Gates himself, it's actually in IBM's
interests to drag this case out as long as they possibly can. Because if all
this is true, imagine the case IBM could bring against Microsoft. Numbers in
the tens of billions of dollars come to mind immediately, and in an antitrust
case those damages would be trebled. Imaging IBM nailing Microsoft for about
$100 billion. It would be in the interests of both IBM and the open
source community to keep that sword of Damocles hanging over Microsoft's neck
for as long as possible....
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 10:18 AM EDT |
All SCO has to do is keep filing motions in this farce of a court system.
[ Reply to This | # ]
|
- SCO wins again - Authored by: Anonymous on Friday, May 07 2004 @ 02:02 PM EDT
| |
| Authored by: eggplant37 on Friday, May 07 2004 @ 10:24 AM EDT |
SCO asked that the fact discovery deadline be changed to May 18,
2005; the expert discovery deadline to July 15, 2005; the deadline for filing
dispositive motions to July 27, 2005; the deadline for disclosure of 26(a)(3)
materials to August 3, 2005; the deadline for the special attorney conference
and for the settlement conference changed to August 15, 2005; the final
pre-trial conference to approximately August 30, 2005; and the trial period to
approximately September 15, 2005.
At the rate these idiots are
going, this case will take until 2015 to finally get to trial. Why the delays?
Why blame IBM for SCO's unwillingness to share with IBM, the court and the rest
of the world what it is that they claim is the big deal here? Delay delay delay
delay delay.
Nonsense. We all know that SCO has no case. The judge
should be able to recognize that SCO has no case. Why can't SCO recognize this
fact?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 10:30 AM EDT |
Okay the current discovery deadline was supposed to be August 2004 or similar
But both sides have been ordered, by the court, to produce more or less
everything by mid April 2004
Given the last part, I don't understand how SCO can ask for basically another
year. Are they saying that they didn't produce/get everything already? Shouldn't
they be addressing what they didn't produce/get rather than simply ask for
another year be tacked on to the calendar?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 10:31 AM EDT |
SCO can't delay this for eternity. Their stock melts like ice in hell.
[ Reply to This | # ]
|
| |
| Authored by: dmscvc123 on Friday, May 07 2004 @ 10:34 AM EDT |
I especially love #2 - SCO caused delays by not handing over discovery in a
timely a manner, so therefore they should be able to delay the case even more.[ Reply to This | # ]
|
| |
| Authored by: belzecue on Friday, May 07 2004 @ 11:06 AM EDT |
Linux Networx
thrives while SCO withers:
Even some vendors of Linux
supercomputers -- known as Linux clusters -- are growing. "Linux Networx is
definitely experiencing expansion. The Linux cluster market is rapidly growing
as users are able to get supercomputing performance for a fraction of the cost
of traditional supercomputers," Andrea Bingham, a spokesperson for Linux Networx
, told LinuxInsider in an interview. [May 6, 2004]
Back in 2000,
Yarro was hot for Linux clustering:
Linux Networx Inc., a
recently-formed provider of large-scale clustered computer solutions, announced
today the addition of more than $2 million in equity funding from private
investor the Canopy Group...
"We recognize the market potential for the high
performance and highly scalable cluster computing solutions Linux Networx
offers," said Ralph Yarro, president and CEO of Canopy Group. "Linux Networx
will be a great addition to the other emerging technologies currently with the
Canopy Group." [April 28, 2000]
Canopy said they would
never invest in two similar companies or competing technologies.
Whoops.
About The Canopy Group
As a venture-capital,
management and resource Corporation, the Canopy Group is devoted to growing the
high-tech industry through funding and influencing emerging technologies.
Focused on technology, Canopy tries to add technologies that complement the
portfolio as a whole - it never invests in two similar companies or technologies
that could compete against each other.
About the Linux Operating
System
Linux is a computer operating system that is distributed freely on
the Internet. As an open source project, Linux allows developers to share
information, code and suggestions to continuously maintain and improve the
system. Linux Networx selected the operating system for its stability,
reliability and rapid development.
Maybe SCO backed off
the 'GPL is unconstitutional' angle because killing Linux Networx' business
license would not be a smart way to get a return on their investment.
[ Reply to This | # ]
|
| |
| Authored by: _Arthur on Friday, May 07 2004 @ 12:17 PM EDT |
Apple has is fair share of nuisance lawsuits from shaky patents:
East Texas Technology Partners v. Apple - Plaintiff alleges infringement of
patent 6,574,239 relating to "Virtual Connection of a Remote Unit to a
Server." Plaintiff seeks unspecified damages from Apple and seven other
defendants.
Gobeli Research v. Apple - Plaintiff alleges that Mac OS 9 and OS X infringe
on patent 5,418,968 related to a "System and Method of Controlling
Interrupt
Processing." They seek unspecified damages from both Apple and Sun
Microsystems.
Shipman v. Apple - Plaintiff claims infringement of patent 6,217,183 related
to a "Keyboard Having Illuminated Keys." Plaintiff alleges that
Apple's
PowerBooks introduced in 2003 infringe this patent. The plaintiff seeks
unspecified damages, a preliminary injunction, and other relief.
Those are disclosed in Apple latest 10-Q.
Apple also faces the usual consumer lawsuits about the iPod and some iBook-
related troubles.
_Arthur[ Reply to This | # ]
|
| |
| Authored by: JakeB on Friday, May 07 2004 @ 12:18 PM EDT |
Isn't there some bad thing that happens when SCOX has been below 10-something
for 20 consecutive days? Isn't today day number 20? Could be wrong, usually
am...[ Reply to This | # ]
|
| |
| Authored by: be2weenthelines on Friday, May 07 2004 @ 02:04 PM EDT |
News just out. Royal bank had converted 10,000 of their series A1 preferreds to
SCO common, sold the other 20,000 to Baystar.[ Reply to This | # ]
|
| |
| Authored by: _Arthur on Friday, May 07 2004 @ 02:09 PM EDT |
http://www.macobserver.com/columns/thebackpage/2004/20040507.shtml
Rob Enderle is as knowledgable in Macintosh matters than he is in Linux.
MacNewsWorld.com set up a journalistic match between MacObserver's Bryan Chaffin
and Rob Enderle.
First head-to-head round results:
http://macnewsworld.com/story/macanalysis/33682.html
"In the meanwhile, I salute Mr. Enderle for having the guts to do this,
especially when I have so often ripped apart his arguments in the past."
_Arthur
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 02:43 PM EDT |
I am looking for possible motivations for RBC, there as still unnamed customer
who has the economic risk, and for Baystar in the newest transaction where RBC
converted $10 million of preferred for $4.4 million of common.
1) Is that RBC or their customer who will become the owner of the 740,740 shares
of common.
2) Is the 740,740 shares the hedge against a SCOX total rate of return swap or
option. If so, is 740,740 the "delta" current risk exposure. This
could explain part of RBC's motivation for retaining some stock.
3) What price did the RBC to Baystar 20 million of convertable preferred get
sold at? Presumably around $4.4 million.
4) Does this give Baystar additional rights with regard to their redemption
request on the convertable preferred?
5) Has Baystar requested redemption on the remainder of the convertable
preferred.
Any ideas or speculations would be appreciated.
-anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, May 07 2004 @ 03:41 PM EDT |
| The net result is that by filing two meritless motions, SCO has delayed the
proceedings by at least one month (probably more). Is there any limit to the
number of meritless motions one can file? If not, is there any reason to
suppose that this whole charade will end before SCO runs out of money to pay
lawyers to file motions? [ Reply to This | # ]
|
- I disagree - Authored by: Anonymous on Friday, May 07 2004 @ 03:58 PM EDT
| |
| Authored by: wzzrd on Friday, May 07 2004 @ 03:42 PM EDT |
Okay, I'm confused. I plainly fail to see why this case has to go on for at
least two more years FCOL!?
This all started in March 2003 right? Now
SCO has got judge Thingy so far as to not start the proper trial until September
next year at best?? And then what? Wrestle ourselves through eons and
eons of courtsessions and recesses? For Pete's sake, why? Why has this got to
take so excruciatingly long? Why has this got to take over three years to
complete?
We are talking about some code here, people, we are talking
about possible copyright infringements and some patent problems. Nothing
fancy. We are trying to find out what parts of Linux IBM stole from SCO (none,
duh!).
From time to time it seems like both IBM and SCO employees need
this absurd amount of time to be able to memorize the complete code of the
kernel and learn how to proclaim it by heart. Backwards. Blindfolded. And hung
upside down above a Quake-style lava pitt.
Get it going already!
Please!
Does anyone care to explain to me why this is taking so long?
Is this normal conduct for civil cases in the US?
[ Reply to This | # ]
|
| |
| Authored by: Khym Chanur on Friday, May 07 2004 @ 06:58 PM EDT |
Why is there so much stuff in a single counterclaim? Shouldn't IBM split it up
something like this:
- IBM's use of Linux doesn't infringe.
- Some or
all of SCO's copyrights in UNIX are invalid and unenforceable.
- IBM's
improvements of Linux don't infringe.
- IBM doesn't induce other to infringe,
or contribute to such infringement.
Not only does it seem more orderly
and less cluttered to me, but then SCO could only ask for a stay on #1 (and
maybe #2), since the others don't have anything to do with
AutoZone.---
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 | # ]
|
|
|
|
|
