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IBM Bashes SCO's Declarations - Reply Memo in Support of Motion to Strike and SCO's 10Q
Thursday, September 16 2004 @ 04:42 PM EDT

Here's IBM's Reply Memorandum in Support of its Motion to Strike Materials Submitted by SCO in Oppostion to IBM's Cross-Motion for Partial Summary Judgment. It's quite a long title, but with so much motion practice, we need all the help we can get identifying what goes with what, no? Here's a sample:

"... SCO concedes that the Declarations of Chris Sontag, Sandeep Gupta, and John Harrop were not submitted for the purpose of attempting to show that a genuine issue of material fact exists that would preclude summary judgment."

The footnote says:

"SCO spends half of its opposition to IBM's motion to strike ... simply by reviewing and repeating the statements contained in those Declarations. SCO's lengthy description of the Declarations, however, does not make them any more admissible."

And yes, Judge Kimball will have read it. Bob Mims, who was in the courtroom for the hearing, reports that Kimball was visibly frustrated with SCO's attorneys:

  "'Unix is yours and Linux everybody can get hold of it, right?' Kimball asked at one point, and later, visibly frustrated, the judge pressed further: 'What is it you think you need?'"

I can answer that. A case. They need a case. You know, what you have before you file a lawsuit.

And here's the Seattle Times' coverage. It printed a Bloomberg News article. If you compare it with an earlier Bloomberg article that day published in the Dallas Morning News, which you can read if you are willing to tell them all about yourself, and you will see that even Bloomberg has had to get a clue from the hearing.

Bloomberg's morning story hyped the alleged fearsome impact SCO's lawsuit against IBM will have on Linux. They even titled it, "LINUX growth threatened by suit brought against IBM." They appeared to be stuck in a time warp. It reads like stories from March of 2003:

"The growth of Linux, the free operating system created by a Finnish college student 13 years ago, is being threatened by a $50 billion lawsuit against International Business Machines Corp.

"SCO Group Inc., a Lindon, Utah-based company run by Darl McBride that claims to own the rights to some of the code, is suing IBM, claiming it is owed royalties from the computer maker. A hearing on the case begins today before U.S. District Judge Dale Kimball in Salt Lake City.

"The lawsuit is the biggest challenge to efforts by companies including IBM, Red Hat Inc. and Hewlett-Packard Co. to maintain Linux as a free operating system. The decision by creator Linus Torvalds to make Linux available free on the Internet has contributed to its growth. The use of Linux in server computers is growing almost three times faster than Microsoft Corp.'s Windows.

"'It's been pretty painful to watch at times,' said Linux creator Torvalds, 34, in an e-mailed response to questions about the legal battle."

If there is one thing that can be safely said, it's that SCO's lawsuits are irrelevant to Linux adoption. Linux is going forward, because companies that have muscle and money want it to. Here's more Linus:

"'What this case has shown even at this point is how a number of companies are willing to step to the plate and say, 'We will protect our Linux use'," Torvalds said. "Not just IBM and Novell, but even regular end-users of Linux that SCO tried to harass."

I love watching the media deal with this story. The AP covered the hearing too, and they got it about right, except for mispelling Mr. Frei's name, which I'm sure he is used to. Even Forbes printed the AP story, and you know how painful that must have been for them.

Phil Albert has an interesting explanation on the new contingency fee, or partial contigency fee, arrangement between SCO and Boies, called "SCO's Woes: Too Late To Turn Back". Because he is a lawyer himself, Albert is in a position to explain what the new terms might mean:

"For SCO and Boies, at this point it is a case of too late to turn back now. They've already invested millions. The fact that SCO is willing to give up a potentially higher pay-off might mean it is less confident in the outcome. At some point, if it looks like the recovery will be less than the investment, everyone might decide to look for a way out by wrapping up the case."

However, I feel I must point out that the terms announced have not yet been signed, according to the latest SEC filing by SCO:

"As described in more detail in Note 10, the Company and Boies Schiller & Flexner, LLP (“BSF”) have entered into a nonbinding letter of intent to enter into a revised definitive fee agreement.  The revised definitive fee agreement has not yet been completed. . . .

"Agreement with Boies, Schiller & Flexner, LLP  

"On August 31, 2004, the Company announced it had entered into a nonbinding letter of intent with BSF, to revise the existing fee agreement with BSF to limit the Company’s overall future cash costs of legal fees, including accrued legal fees to BSF as of July 31, 2004, associated with the Company’s pending intellectual property litigation to a total of $31,000,000.  In addition, the nonbinding letter of intent contemplates that BSF will lead the Company’s intellectual property legal efforts through the duration and completion of the pending litigation.  In return for the new fee arrangement, the nonbinding letter of intent provides that the contingency fee payable to BSF and other law firms associated with any settlement or judgment award will vary on a scaled basis from 20 to 33 percent, depending on the size of the award.  The revised fee agreement is subject to the Company and BSF entering into a definitive revised fee agreement. . . ."

I found this little tidbit of interest too, about the new poison pill:

"Under the terms of the Rights Plan, preferred stock purchase rights will be distributed as a dividend at the rate of one right for each share of common stock of the Company held by stockholders of record as of the close of business on August 30, 2004.  The Rights Plan would be triggered if a person or group acquired beneficial ownership of 15 percent or more of our common stock other than pursuant to a board-approved tender or exchange offer or commences, or publicly announces an intention to commence, a tender or exchange offer upon consummation of which such person or group would beneficially own 15 percent or more of our common stock.The adoption of the Rights Plan had no impact on the financial statements for the third quarter or first three quarters of fiscal year 2004.  However, if a triggering event occurs in the future, there may be an impact to the financial statements at the time a triggering event occurs."

And they say the company didn't buy back any shares this last quarter, compared with 290,000 shares the previous quarter. And they paid a consultant $30,000 to advise them on finance and investing:

"During the three months ended April 30, 2004, the Company entered into an agreement with a consultant to provide financial consulting and investor relations services to the Company.

"The agreement was for a period of three months and was renewable for additional three-month periods.  The Company paid the consultant a fixed fee of $10,000 per month.  As part of the agreement, the Company granted to the consultant an option to acquire 200,000 shares of the Company’s common stock at a price of $10.03 per share, the fair value of the Company’s common stock on the date the agreement was finalized.    The option expired unexercised and the agreement with the consultant was not renewed."

I note they list the value of their goodwill as $0. That sounds a little high to me. Also, they expect to blow about $2 million on restructuring costs.

Speaking of value, here's a nice look at Microsoft's "higher" math showing it is cheaper than Linux:

"A quick look at the substance behind these claims reveals that, as you would expect, the methodology and science of the analysis is mostly spot on, but some of the assumptions along the way seem to be a little unusual.

Twisted logic

For example, a common assumption is that having selected a ‘free’ operating system (although all the studies seem to ignore anything but Red Hat, hardly the cheapest option), businesses would then opt for the most expensive database solution available to humanity, rather than more reasonably-priced alternatives.

In another study we discover that application development on Windows takes less time (and therefore less money) because it’s just a more productive environment. One wonders what Microsoft itself is using, given the production delays to its Longhorn system update.

For almost all of the research companies used, the main factor that tipped the balance Microsoft’s way in terms of the total cost of ownership is staffing costs. Apparently this is because Linux solutions are harder to manage, and require more expensive people. That may be true up to a point. But multiplying flat costs for long-term projections, as many of the reports do, assumes Linux won’t continue to grow when conventional wisdom suggests it will, increasing the availability of knowledgeable staff and improving the software needed to manage it more efficiently.

I bet they didn't factor in down time for dealing with security issues, either. Or the expense involved in funding innovative lawsuits.

  


IBM Bashes SCO's Declarations - Reply Memo in Support of Motion to Strike and SCO's 10Q | 333 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
..corrections here, you know da drill. ;-) N/T
Authored by: Anonymous on Thursday, September 16 2004 @ 05:42 PM EDT
.

[ Reply to This | # ]

..off topic here. ;-) N/T
Authored by: Anonymous on Thursday, September 16 2004 @ 05:44 PM EDT
.

[ Reply to This | # ]

..trolls here, you know da drill, yoohoo, what's happening, y'all asleep? ;-) N/T
Authored by: Anonymous on Thursday, September 16 2004 @ 05:47 PM EDT
.

[ Reply to This | # ]

Trolls and all...
Authored by: Anonymous on Thursday, September 16 2004 @ 05:47 PM EDT
--andy

[ Reply to This | # ]

..transcription coordination here. Thank you all, keep up the good work. :-) N/T
Authored by: Anonymous on Thursday, September 16 2004 @ 05:49 PM EDT
.

[ Reply to This | # ]

Oh, it's been a long time, but...
Authored by: ray08 on Thursday, September 16 2004 @ 05:51 PM EDT
...we're beginning to see the light at the end of tunnel! Looks like the judge
is waking up to sco's antics (finally).

The media and the courts are not geekheads like most of us here at groklaw, so I
can understand the long delay in them getting up-to-speed on what's really going
on in this (these) case(s). Add to that all of M$'s subversive propaganda and
it's easy to see why the rest of world is slow to catch on.

But hey, if the truth finally prevails, I'd call it a Victory!

---
Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)

[ Reply to This | # ]

Last quarter call misled investors
Authored by: Anonymous on Thursday, September 16 2004 @ 05:59 PM EDT
So the last quarter call misled investors? I remember no such caveats when Darl
said SCO had entered an agreement to cap the fees at £31m. A non-binding letter
of intent hardly sounds watertight, or what he was describing.

If I was an investor I'd be angry. Not just generally, but about this specific
sleight of hand.

What's the betting Boies will "unbind" this agreement after a decent
interval - I mean why should he prefer a bigger cut of zero damages when he can
take a fatter fee instead?

[ Reply to This | # ]

Cost of ownership
Authored by: Anonymous on Thursday, September 16 2004 @ 06:04 PM EDT
Not about SCO but does relate to the article...

About the cost of ownership stuff. TCO should include cost of *exit* - how much
does it cost you to junk the software when it's obsolete and switch to a
different vendor. That's one of the most important factors but is usually
ignored.

The textbook economic theory of software pricing is as follows:

The marginal cost of production is zero (more or less) - it costs f**k all to
burn another CD. So the price in a perfectly competitive market will be zero,
and in a real market determined by the degree to which the market fails to be
competitive - primarily the incidental costs incurred by a purchaser switching
from one vendor to another.

So the major factor in predicting your future software costs is the cost of
*exit* - how much will you have to fork out to stop using your current software
to switch to something else.

Windows has high exit costs. Proprietary protocols, file formats everything.
Breaking the M$ addiction means going cold turkey to a completely unrelated
system.

Not satisfied with your Linux vendor? Start installing a different distro on
new hardware, migrate your data as usual - cost of switching is minimal -
properly planned, it's just part of your usual upgrade cycle.

[ Reply to This | # ]

So much hangs in the balance...
Authored by: John M. Horn on Thursday, September 16 2004 @ 06:18 PM EDT
If someone had asked me several years ago if I would be anxiously reading third
party court hearing accounts while perched on the edge of my seat in the early
21st century, I would laughed my head off. Yet, here I am.

And the reasons are so simple, there is SO MUCH depending on the outcome of
these cases. Probably millions of hours of work by literally tens of thousands
of volunteers from all over the globe.

I think that this current battle is only the first volley in a protracted legal
war pitting the proprietary software industry against the Open Source community.
Unlike mythological struggles between good and evil, this contest pits the
avarice and resistance to change of the old guard against the charity,
generosity and community spirit of the new generation of programmers and
engineers - who themselves are merely extending the concepts and paradigms of
the early pioneering developers of the original Unix operating system.

Soon, the company that has the most to lose from the eventual dominance of FOSS
will have to step up to the plate in an effort to protect their illegal
activities and preserve their ill gotten revenue. The earliest, well masked
staqes of those battles have already begun in the halls of congress and the
conference rooms of a plethora of lobbying groups and PACs. The artillery
ammunition that will be fired in the opening salvos will be patents and the Open
Source community must be well organized and determined to prevail if we are to
have a chance to defeat the well organized and wealthy forces that will be
arrayed against us.

In the end though, I think we will prevail. I hope I am able to see it in my
lifetime though.

John Horn

[ Reply to This | # ]

Definition of goodwill
Authored by: jam on Thursday, September 16 2004 @ 06:40 PM EDT
Just for the record, goodwill is a common item on financial reports, that has a specific meaning that's not quite what you would guess as a layperson. Specifically, it isn't directly how people feel about a company.

From Investopedia.com, I find the following definition:

The market sets the price of what a business is worth. In mergers and acquisitions, goodwill arises when more was paid for the business than you'd expect from just looking at the value of its assets and liabilities. This difference can have a number of reasons, including a happy workforce, customer loyalty, a good location, and so on.

So, its basically excess that you paid for an acquisition above the value of its assets and liabilities. The price you pay for buying a business is set by the market, which is often more money than what it would cost if you sold all the assets and paid the creditors.

This value that is the excess paid over what the bought company would otherwise be worth is caried on the books forever, as far as I know, until modified by future acquisitions which have their own goodwill value, either positive or negative.

[ Reply to This | # ]

SCO supporters here
Authored by: Nick Bridge on Thursday, September 16 2004 @ 06:48 PM EDT
...

[ Reply to This | # ]

Another pithy footnote
Authored by: rgmoore on Thursday, September 16 2004 @ 06:50 PM EDT

I couldn't help but be boggled by this quote from footnote 10:

As an initial matter, SCO attempts to rewrite the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), contending that in Celotex, "[t]he Supreme Court allowed an opponent to submit three letter which constituted hearsay in opposition to a motion for summary judgment". (SCO Opp'n at 22 n.3 citing Celotex, 477 U.S. at 320.) A careful review of Celotex, however, reveals that SCO has invented this holding whole-cloth. In Celotex, the Supreme Court merely recited the procedural history of the case, noting that the respondant, before the district court, had submitted three documents in opposition to summary judgment to which the petitioner had objected on the grounds that they contained inadmissible hearsay. The Supreme Court spoke no further on these documents and certainly did not rule on whether the documents did constitute hearsay, or whether they were properly admitted.

Did SCO really think that they were going to be able to sneak something like that past IBM's lawyers and the judge, or where they just too lazy, sloppy, and/or overworked to notice? It also makes me wonder: if SCO can misstate a case this badly, why should the judge believe SCO when it attempts to summarize anything else in the case?

---
Behind every sleazy lawyer, there's a sleazy client.

[ Reply to This | # ]

TCO argument is loopy
Authored by: Anonymous on Thursday, September 16 2004 @ 07:02 PM EDT
The TCO arguments are loopy... we all know that.

However here's some real world results:

I own a small company that's involved in publishing (technical
side).

We had been using Microsoft on all of our computers for quite
some time (10-15 years). However, about 2 years ago it became
apparent that we were paying higher and higher prices for less
and less value (especially after the recent licensing changes).

Naturally we started looking for alternatives and one of my
employees suggested Linux.

None of us had any experience with Linux or Unix for that
matter. We were solely experience with Windows servers and
development.

In a little under a year and half we have converted over to Linux
with zero disruption to our daily activities. We're getting twice
the value from our new software and servers (all open source).
We spend *half* the time in managing our network and the
ease of doing so makes it a joyful task.

Microsoft claims they listen to their customers. They sure didn't
listen to us. Now that we've tasted freedom (no not as in beer)
we'll never return.

Most importantly development and networking have become fun
again. The community is incredible the resources limitless and
the productivity boundless. I regret having taking so long to
enter the open source community.

Lt.

P.S. Groklaw being a shining example of community contribution.

[ Reply to This | # ]

Attachments in Reply Memo?
Authored by: Anonymous on Thursday, September 16 2004 @ 07:05 PM EDT
Is it normal for a memo to include all the Westlaw citations that IBM attached? They certainly bulked up the memo, and it didn't include all the citations even then!

[ Reply to This | # ]

Too Easy
Authored by: maco on Thursday, September 16 2004 @ 07:12 PM EDT
IBM's memorandum was shooting fish in a barrel. They probably used a college
sophmore intern to write it. I think the only difficult thing was limiting the
page size - SCOX offered too many tempting targets. IBM didn't even have to
aim.

[ Reply to This | # ]

  • Too Hard - Authored by: Anonymous on Thursday, September 16 2004 @ 08:27 PM EDT
  • Not likely - Authored by: OmniGeek on Thursday, September 16 2004 @ 09:37 PM EDT
  • Hard part - Authored by: DebianUser on Thursday, September 16 2004 @ 10:15 PM EDT
Ethical Considerations and the Lawyers
Authored by: webster on Thursday, September 16 2004 @ 07:26 PM EDT
It is easy to criticize the performance of the SCO lawyers. It seems like the
law and the facts are not with them. They stumble and strain to make points but
they are irrelevant, indirect and peripheral, like delay and discovery, and
putative derivative claims.

What is the obligation of a lawyer in Utah who realizes his suit was founded in
error - his main claim was mistaken? He probably can't argue the claim and he
probably can't abandon his client.

What obligations of due diligence, if any, did he have to investigate the facts
presented to him by his client. Was he obliged to have an expert in such a
specialized field as this? Could he rely on the supposed company experts?

If someone knows these answers off hand, it could explain much of the supposed
shortcomings of the representation. THey certainly can't argue what they know
is not true. They are strident about the code they don't have, because they
can't misrepresent anything about the code they do have. It is more like SCO is
a criminal defendant that must remain silent. They scream reasonable doubt and
missing evidence. It's no way to prove anything, it may buy some time, and it
often causes confusion, but not this often.

---
webster

[ Reply to This | # ]

$31m for lawyers, $0 for experts
Authored by: Anonymous on Thursday, September 16 2004 @ 08:45 PM EDT
I was thinking about SCO's claim yesterday that they haven't gone any expert work since 1999, and that IBM is trying to bankrupt them by asking them to "track" code.

We know that Professor Randall Davis, one of IBM's experts, is being paid $550 per hour.

If SCO were to employ an expert at the same pay rate, they could employ him for 45 weeks, and 2 days, FULL TIME, for $1m (45.45 weeks X $550 per hour X 40 hours per week)

It is quite an amazing claim in this light.

As SCO are willing to spend $31m additional on lawyer fees, but $0 on experts.

Quatermass
IANAL IMHO

[ Reply to This | # ]

IBM Bashes SCO's Declarations - Reply Memo in Support of Motion to Strike and SCO's 10Q
Authored by: Anonymous on Thursday, September 16 2004 @ 08:53 PM EDT
In reading IBM's responce. I really hope Kimbell will state how he feels about
SCO's perfomance with these Declarations.

In one corner, IBM has provided Delcarations by independant experts, who's level
of esteme in the community (in the case of Kerhigan), would be like Delcarations
from God himself. These declarations are both Expert and based on direct
personal knowledge.

Where as to SCO, they actually couldn't even bribe some community college CS
professor at $650/hr, and had to rely on their own friggen employees to provide
their non-expert opinions based on some documents they read 5 minutes before
they wrote their delcarations.

Its soo very pathetic.



[ Reply to This | # ]

IBM gets an A grade
Authored by: Anonymous on Thursday, September 16 2004 @ 09:02 PM EDT
I'm amused and pleased to see a big handwritten "A" on page 13 of
IBM's filing. Personally I feel the judge was a little harsh; their elegant
dissection of SCO's faulty argument deserves an A+ in my opinion.

..


(Yes, I realize it's just the clerk marking attachment/appendix A.)

[ Reply to This | # ]

legal definition...
Authored by: Latesigner on Thursday, September 16 2004 @ 09:30 PM EDT
Just what did Judge Wells mean when she said SCO had shown
"goodwill"?
I'm sure it's not the layman's definition I have of it.

[ Reply to This | # ]

Silly TCO Studies
Authored by: groovemaneuver on Thursday, September 16 2004 @ 10:18 PM EDT
You know, whether the whole salary difference is true or not, you just gotta
love Microsoft publicly devaluing their own technicians in these TCO
"studies".

After a certain point, if it's true that Linux admins make so much more than
MCSEs, why is anyone going to want to be an MCSE? For the love of
Microsoft?

As for one platform being harder to administer than the other, I'm not a
glutton for punishment, and that's one of the many reasons why I stick with
Linux.

---
----------------------
Chris Stark
Musician & Linux User

[ Reply to This | # ]

"Procedural facts" vs. "Substantive facts"
Authored by: Khym Chanur on Thursday, September 16 2004 @ 10:36 PM EDT
In footnote 4, IBM makes a distinction between "procedural facts" and "substantive facts":
As SCO readily admits, the court in .... held that an attorney's personal knowledge in an affidavit could be based on documentary evidence, but only as to procedural facts in the case and not substantive facts.
So, what's the difference?

---
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. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

A source code control question
Authored by: rao on Friday, September 17 2004 @ 12:48 AM EDT

The Seattle Times article quotes Brent Hatch as saying:

IBM is asking us to compare this code in the most time-consuming and inefficient way possible.

We've seen similar statements from SCO before. It has always bothered me but I haven't given it much thought until now. How is IBM supposed to help them do code comparisons more efficiently?

I'm pretty sure he was referring to IBM's source code control system but all that will do is generate different versions of the source code that it is controlling. This will just mean more files to be compared. It does not help do the comparison.

[ Reply to This | # ]

Ownership of copyrights?
Authored by: rao on Friday, September 17 2004 @ 01:05 AM EDT

I'm pretty sure IBM brought this up in their request for the PSJ but I haven't heard it mentioned in any of the accounts from the hearing and I would think that it would be a major point. Doesn't SCO have to prove ownership of the copyrights in order to win CC10? I don't recall anything in SCO's filings even broaching the subject.

Anyone know how long it takes for the transcripts to be made available? Is there any chance of getting a streaming audio version of the hearing? I would really like to hear the tone of the Judges voice when he got tired of SCO harping on the discovery thing and asked them what they needed. I don't think any of the eyewitness accounts mentioned what SCO's answer to this was.

[ Reply to This | # ]

Oracle did its part
Authored by: Anonymous on Friday, September 17 2004 @ 01:34 AM EDT
It made its low-end linux database product free.

[ Reply to This | # ]

THey have a case...
Authored by: Anonymous on Friday, September 17 2004 @ 02:36 AM EDT
I can answer that. A case. They need a case. You know, what you have before you file a lawsuit.

THey have a suitcase I think, or did Blebb lose it?

[ Reply to This | # ]

IBM's Legal Briefs...
Authored by: Anonymous on Friday, September 17 2004 @ 02:40 AM EDT
Wow, is it just me or does IBM's legal team have a nice and concise way of
organizing their case? Its dangerous for a layperson to read a legal document
and understand exactly what is going on, or the significance of key legal
assertions or theories-- however, even a layperson who has been following the
case should be able to understand IBM's position and basic arguments. I might
not know precisely what all the rules are and can't "read between the
lines", but each and every argument in the IBM briefs generally have a
"place". They are focused, with each document clearly outlining the
issues at hand and then presenting the minutae of supporting details. For
example, I can see that the arguments presented in IBM section x are meant to
rebut SCO's argument y.

SCO's briefs, on the other hand, are difficult to follow. Sometimes its not
clear why SCO is saying certain things. Even if I can't understand legalese
(i.e. the details), I should be able to identify what IBM points SCO is trying
to address in a section of text. Sometimes, in the more obvious instances, it
can be followed but other times SCO seems to meander about, not making a clear
and focused argument.

I think this affects the effectiveness of the arguments. The judge(s) have to
read SCO's briefs much more closely to identify which statements addresses which
points, and which statements have really been undisputed. This has the
potential of diluting SCO's points.

Ultimately, the judge is going to look at the substansive facts and required
legal principles, and base his decisions only on those things. And ultimately,
the winner is not who can write the best "legal prose". But clear and
concise arguments-- even if you really don't have a case to begin with-- does
probably allow the judge to be more receptive of your viewpoint.

I'm not sure if SCO's legal team knows how to write a decisive and compelling
"kill", even if they had an advantageous position in a case. Its like
a sports team which knows how to play the game, how to be a threat, but not how
to win.

[ Reply to This | # ]

IBM Bashes SCO's Declarations - Reply Memo in Support of Motion to Strike and SCO's 10Q
Authored by: blacklight on Friday, September 17 2004 @ 05:12 AM EDT
"Bob Mims, who was in the courtroom for the hearing, reports that Kimball
was visibly frustrated with SCO's attorneys:

"'Unix is yours and Linux everybody can get hold of it, right?' Kimball
asked at one point, and later, visibly frustrated, the judge pressed further:
'What is it you think you need?'""

The odds are not very good that SCOG's demands for more discovery are going to
be successful. Judge Kimball must have a pretty good idea that if he grants
SCOG's demands, then Judge Kimball is going to lose control of his courtroom to
SCOG: he is going to look at a future of endless discovery battles and more and
more delays.

[ Reply to This | # ]

OT: Robin Bloor makes a suggestion about comparison
Authored by: belzecue on Friday, September 17 2004 @ 05:22 AM EDT
http://www.it-director.com/article.php?articleid=12246

SCO - Stop Making Me Laugh
Published: 17th September 2004
Author: Robin Bloor

"...My proposed solution to this problem is that SCO should outsource the
work of comparing lines of code to a large outsourcing concern. IBM of course
does a great business in outsourcing, and thus should be allowed to tender for
the contract, but my expectation is that such a lucrative contract would
probably go elsewhere - to one of those dastardly Indian companies that keep
winning business on the basis of price..."


[ Reply to This | # ]

Cost of ownership theory
Authored by: pooky on Friday, September 17 2004 @ 11:03 AM EDT
Okay try this one on for size. Microsoft is desperate to find some way to stop
customers from pulling that "linux" card out when they renew their
licenses. Microsoft has tried and tried to twist reality to show that their $45
Billion dollar bank account has amassed from an OS that is, in fact, cheaper
than the free one.

Unconvinced, many people roll on and threaten to switch to get the costs
lowered. While Microsoft loses some customers, others are staying but with a bad
precedent of what it takes to keep business which hurts Microsoft's bottom
line.

So before things get out of hand, Microsoft needs a way to halt the exodus from
their products before it truly turns into an exodus. Then along comes this
chiuaua company SCO with a big bark and a complaint but no muscle. Microsoft
sees an opportunity. By Microsoft's OS because if you buy Linux you might get
sued for millions, and that would most assuradly be more expensive than just
paying our license fee for what you already have.

So Microsoft tells the chiuaua SCO "we can help you but we can't do it
directly because that would be too obvious and won't accomplish our goal if
people know. So call this guy we know at BayStar Capital, he will help
you." Microsoft pays SCO a few million for good faith and gets Sun to do
likewise under the "Linux is your enemy too theory".

And thus is born the whole strategy to litigate against IBM. Microsoft gets
minor benefits now but will reap HUGE rewards if SCO has any valid claim
whatsoever in Linux. So SCO will keep pushing and pushing because as they've
said, they have nothing else to try to save their company. It's worth a $21
million shot I think. I mean that can be chalked up under "minor marketing
expense".

Thoughts?

-pooky

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If at First You Don't Succeed, Skydiving Isn't for You.

[ Reply to This | # ]

Poison pill
Authored by: Anonymous on Friday, September 17 2004 @ 11:09 AM EDT
If the poison pill is triggered at 15% ownership, it would only take a
consortium of four companies to take control of SCO without triggering the pill,
yes? (Like, say, IBM, HP, Oracle, and Apple?) SCO's market cap is under $60
million, I think, so they could do it for under $10 million each. Seems cheap at
the price.

But I'm sure it'll be more fun for everyone to see IBM crush them in court. Hmm.
Nevermind, I see the plan. They're just going to snap 'em up at the bankruptcy
auction that must surely follow the end of the lawsuit.

Patience, grasshopper.

[ Reply to This | # ]

IBM Bashes SCO's Declarations - Reply Memo in Support of Motion to Strike and SCO's 10Q
Authored by: Anon Ymonus on Friday, September 17 2004 @ 12:08 PM EDT
They need a case. You know, what you have before you file a lawsuit.
Note to self: Do not read Groklaw when drinking any beverage. It will likely end up being sprayed all over keyboard and/or screen...

---
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Anon Ymonus
The future is known. It is the past which is always changing. -- Soviet dissident joke

[ Reply to This | # ]

I, II
Authored by: Anonymous on Saturday, September 18 2004 @ 03:17 PM EDT
--David Truog

[ Reply to This | # ]

See footnote on page 9 of IBM's reply memo
Authored by: nartreb on Tuesday, September 21 2004 @ 01:43 PM EDT
... where they point out that SCO's lawyers have just plain made up a Supreme Court ruling (in a famous case too). IANAL (yet), but this looks to me like a violation of the Rules of Professional Responsibity - Rule 3.3(a) of the Model Rules to be precise. In short, it's the sort of thing lawyers can get disbarred for.

[ Reply to This | # ]
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