decoration decoration
Stories

GROKLAW
When you want to know more... 		decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook

Donate

Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments

Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Tuesday, October 05 2004 @ 06:21 PM EDT

Here is the letter SCO has filed with The Honorable Sue Robinson, the judge presiding over the Red Hat v. SCO lawsuit, their periodic report on how things are going in the SCO v. IBM lawsuit, as required by Judge Robinson's April Order. It's a fairly straightforward account of what has happened since July, no bells, no whistles, just a wee bit of spin on the last paragraph -- about IBM withholding predicate discovery blah blah, over a year, blah blah, despite a court order, blah blah, the same story they told Judge Kimball, but this is, blessedly, the short version.

So short, they neglected to mention that SCO brought an Ex Parte Emergency Motion for a Scheduling Conference, which was denied by Judge Kimball. They mention their Motion to Enforce the Scheduling Order, but they never mention the second motion, despite mentioning the order, which denied them both.

That was the Order where the Judge said he was puzzled by SCO asking to "enforce" the scheduling order, because there was nothing IBM had done that was contrary to anything in his order, that he wouldn't hold a scheduling conference, and that any delay was SCO's fault, not IBM's or the Magistrate's. SCO didn't attach a copy of his Order, I gather. With so many motions, it is hard to keep it all straight and remember them all. Red Hat will file a report too, so she will get to hear both sides of the story, and no doubt Red Hat's will be a longer, more detailed version.

*****************************

Morris, Nichols, Arsht & Tunnell
[letterhead]

October 4, 2004

Leslie A. Polizoti
[phone, fax, email]

The Honorable Sue L. Robinson
United States District Court
[address]

Re: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772 (SLR)

Dear Chief Robinson:

Pursuant to this Court's April 6, 2004 Order (D.I. 34), SCO respectfully submits this second summary of the status of the SCO v. IBM pending before The Honorable Dale A. Kimball in the United States District Court for the District of Utah (the "Utah Case"). This summary updates the status of the Utah Case since July 6, 2004 (see D.I. 42).

Two motions that were originally scheduled for August 4, 2004 were heard before Judge Kimball on September 15, 2004:

1. Defendant/Counter-Plaintiff IBM's Motion for Partial Summary Judgment on Its Counterclaim for a Declaratory Judgment of Non-Infringement [Counterclaim Ten]; and

2. SCO's Motion to Dismiss or to Stay Count Ten of IBM's Second Amended Counterclaims.

Both parties made substantial submissions to the Court on these motions. Judge Kimball also heard on September 15, 2004, SCO's Rule 56(f) motion and IBM's Motion to Strike material submitted by SCO in opposition to IBM's above-referenced summary judgment motion. All of these motions are before Judge Kimball and are awaiting his decision.

In addition to the above-referenced summary judgment motion, within the past two months, IBM has also filed two additional motions, seeking summary judgment on SCO's contract claims as well as IBM's Eight Counterclaim for copyright infringement relating to Linux. In response to those motions, on September 8, SCO filed a Motion to Enforce the Scheduling Order, which asked the Court to defer consideration of IBM's dispositive motions until after the close of fact discovery. Judge Kimball denied SCO's motion on October 1, 2004, but the Court has provided SCO with additional time to respond to IBM's pending motions. SCO is preparing its responses to IBM's summary judgment motions on SCO's contract claims and IBM's Eight Counterclaim.

Finally, a number of discovery issues remain pending before the Magistrate Court. SCO has filed two applications seeking to compel the production of core, predicate discovery that IBM has now withheld for over a year. (Indeed, one of SCO's pending motions seeks to enforce the Magistrate Judge's March 3 Order, with which IBM still has not complied.) Magistrate Judge Wells has scheduled a hearing on all of the pending discovery issues for October 19, 2004.

Respectfully,

__[signature]___
Leslie A. Polizoti

cc: Peter T. Dalleo, Clerk (By Hand)
Josy Ingersoll (By Hand)
William F. Lee (By Fax)
Mark J. Heise (By Fax)


  


SCO Tells the Red Hat Judge Their Version of SCO v. IBM | 254 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Authored by: akoma on Tuesday, October 05 2004 @ 07:08 PM EDT
"IBM will file a report too, so she will get to hear both sides of the
story, and no doubt IBM's will be a longer, more detailed version."

IBM Or Red Hat?

I wonder :)

---
I have no insightfull things to say in my sign..

[ Reply to This | # ]

SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Authored by: Ashe on Tuesday, October 05 2004 @ 07:26 PM EDT
Do SCO get in trouble if Redhat also report and RH's report shows some stuff
that SCO "forgot" to mention?

Or at least a firmly worded "Do pay attention 007"?

---
"I am exhausted from living up to your expectations"

[ Reply to This | # ]

O/T
Authored by: bsm2003 on Tuesday, October 05 2004 @ 07:27 PM EDT
Question Does the Judge in DE have access to the pacer docs in UT?

[ Reply to This | # ]

Chief Robinson?
Authored by: Anonymous on Tuesday, October 05 2004 @ 07:28 PM EDT
Forgive my ignorance, is "chief" some sort of judicial title?

[ Reply to This | # ]

One good consequence of this letter
Authored by: Anonymous on Tuesday, October 05 2004 @ 07:35 PM EDT
If Wells denies SCO's "renewed" motion to compel, they are not going
to look stupid in Utah, but they'll pretty stupid in front of the Delaware
court

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Authored by: Anonymous on Tuesday, October 05 2004 @ 07:36 PM EDT
In addition to the above-referenced summary judgment motion, within the past two months, IBM has also filed two additional motions, seeking summary judgment on SCO's contract claims as well as IBM's Eight Counterclaim for copyright infringement relating to Linux. In response to those motions, on September 8, SCO filed a Motion to Enforce the Scheduling Order, which asked the Court to defer consideration of IBM's dispositive motions until after the close of fact discovery.

I wonder how her Honor will like hearing that TSG wanted to delay her issue until after discovery?

Probably she wouldn't do anything about it ... but then, she might lift her stay and tell TSG to prove they own the copyrights.

Yeah, fat chance.

[ Reply to This | # ]

What Rule 56(f) motion?
Authored by: Anonymous on Tuesday, October 05 2004 @ 07:54 PM EDT
Correct me if I'm wrong, but didn't SCO get swatted for not filing a proper 56(f) motion? Or, more specifically, told that if they wanted to see CC10 denied, they would have to follow the proper Rule 56 procedures (with the clear implication that they had not done so to date)?

[ Reply to This | # ]

Since SCO did nothing to prove it owns Unix Copyrights...
Authored by: Anonymous on Tuesday, October 05 2004 @ 08:02 PM EDT
... can the RedHat vs. SCO judge now restart proceedings?

First, the copyright ownership issue will not be resolved by CC10 - unless
Judge Kimball states unequivocally in the summary judgment on CC10, that
SCO does not demonstrate it owns the copyrights.

Second, the alleged copyright infringement by RedHat won't be resolved by
CC10.

Thus, the SCO vs. IBM case should not pose an impediment to restarting
proceedings in the RedHat vs. SCO case.

[ Reply to This | # ]

Anywhere but, uh, where?
Authored by: MplsBrian on Tuesday, October 05 2004 @ 08:36 PM EDT
I wonder whether Redhat will refer to IBM's 'anywhere but here' allegation?
What're the bets, include a full quote? Repeat the phrase? Or just attach the
appropriate documents that include that phrase. I can't wait to find out!

[ Reply to This | # ]

SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Authored by: danb35 on Tuesday, October 05 2004 @ 08:50 PM EDT
From the letter:
but the Court has provided SCO with additional time to respond to IBM's pending motions.

Oh has it now? That's not the way I read Judge Kimball's order--he said they could obtain additional time with a proper request, not that he was giving them extra time. Did I miss something?

[ Reply to This | # ]

SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Authored by: J.F. on Tuesday, October 05 2004 @ 09:51 PM EDT

- no bells, no whistles, just a wee bit of spin on the last paragraph -

You are such a nice person, Pamela. I'd have called that last paragraph many other things which aren't allowed because of your refined and kind nature.

:)

[ Reply to This | # ]

New Doc for SCO vs Novell
Authored by: bsm2003 on Tuesday, October 05 2004 @ 11:13 PM EDT
Here Saved from Pacer Cache ExParte Motion of Plaintiff The SCO Group, Inc. ("SCO") for Leave to File an over-length Memorandum in Opposition to Novell, Inc's> Motion to Dismiss. Say that three times.

[ Reply to This | # ]

  • IBM 315 - Authored by: Anonymous on Tuesday, October 05 2004 @ 11:24 PM EDT
    • IBM 315 - Authored by: TonyW on Wednesday, October 06 2004 @ 12:50 AM EDT
    • IBM 315 - Authored by: Jude on Wednesday, October 06 2004 @ 10:09 AM EDT
      • IBM 315 - Authored by: Anonymous on Wednesday, October 06 2004 @ 11:23 AM EDT
      • IBM 315 - Authored by: cricketjeff on Wednesday, October 06 2004 @ 03:27 PM EDT
  • "that that that" (n/t :) - Authored by: Anonymous on Wednesday, October 06 2004 @ 11:04 AM EDT
I think I'm Missing Something Here
Authored by: Anonymous on Wednesday, October 06 2004 @ 01:23 AM EDT
Isn't the commentary about discovery requests and IBM PSJ's on contract
issues irrelevant to the Delaware Court?

The disposition of CC10, which is submitted, is the essential event that
impacts RH-SCO, or am I wrong?

[ Reply to This | # ]

Interesting choice of words
Authored by: Anonymous on Wednesday, October 06 2004 @ 03:24 AM EDT
" IBM's Eight Counterclaim for copyright infringement relating to
Linux."

SCO almost makes it sound like IBM's Eight Counterclaim might be premised on
Linux itself (as opposed to SCO's continued distribution of IBM code in Linux
after their GPL rights have been terminated) infringes somebody's (IBM's)
copyright.

Perhaps that could prompt a new line of argument for SCO - "We knew Linux
had intellectual property problems, and no method of preventing IP infringements
in Linux's development process - and IBM's successful prosecution of a copyright
infringement claim relating to Linux, shows that we were right."

[ Reply to This | # ]

They left out THE MOST IMPORTANT POINT, they're lying by omission
Authored by: skidrash on Wednesday, October 06 2004 @ 10:50 AM EDT
that SCOG is telling Judge Kimball that there are no copyright issues in
SCOldera vs IBM, that the IBM suit is STRICTLY and ONLY about contracts.

But they told Judge Robinson that all the RH COPYRIGHT issues will be decided in
SCOldera vs IBM.

Now instead of straight out lying they're lying by omission.

[ Reply to This | # ]

Legal confusion in the Northwest Territories...
Authored by: Groklaw Lurker on Wednesday, October 06 2004 @ 12:36 PM EDT
The attorneys in both Delaware and Utah are representing the same client, SCO.
Yet their written statements to these two Judges are clearly mutually exclusive.
Is it permissable for this to continue indefinitely?

How does the legal system reconcile these distinctive and obvious
mischaracterizations by SCO's attorneys? Does such conduct ensure that a 'day of
reckoning' will eventually be visited upon some, presumably, responsible party
representing SCO, or perhaps, visited upon SCO itself?

Frankly, SCO seems to be making a mockery of the American legal system by
simultaneously perpetuating these obviously contradictory positions in two
different American courts of law.

How can this be? How can it continue? What could be done to reconcile these
positions?

---
(GL) Groklaw Lurker
$ echo "Darl" | sed "s/arl/ick/"

[ Reply to This | # ]

OT: Darl on TV (CNBC Europe) tomorrow 11:20
Authored by: Anonymous on Wednesday, October 06 2004 @ 01:58 PM EDT
http://sg.biz.yahoo.com/041006/15/3nl73.html

[ Reply to This | # ]

Clarification on court orders
Authored by: dwandre on Wednesday, October 06 2004 @ 02:34 PM EDT
It took me a little while to figure out that when PJ wrote "They mention their Motion to Enforce the Scheduling Order, but they never mention the second motion, despite mentioning the order, which denied them both." that the second order mentioned is Judge Kimball's ruling on SCO's scheduling motions. Something like " despite mentioning Judge Kimball's decision," would be easier to parse. On first reading it I thought "mentioning the order" referred to the first order in the sentence, namely the Scheduling Order. The SCO letter just says "Judge Kimball denied SCO's motion on October 1, 2004,..." but doesn't refer to it as an order, though if you read the decision the final paragraph begins with the words "Accordingly, IT IS HEREBY ORDERED that ..."

[ Reply to This | # ]

SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Authored by: Anonymous on Wednesday, October 06 2004 @ 07:34 PM EDT
Not directly on topic but, I just looked at SCO's site to see how they had
reported the ruling on their motions and found that the last filing available is
dated 9/13/2004. Seems they don't want to let the world know they are beginning
to lose.

[ Reply to This | # ]

Listen up! SCO and UNIX Copyrights...
Authored by: Tomas on Wednesday, October 06 2004 @ 11:15 PM EDT
Under this article about SCO filing with the judge hearing Red Hat in Delaware isn't the correct place for this, but I feel it needs to be said, loudly.

Even in this group of comments dealing with Red Hat, I keep seeing comment worrying a lot about who owns the UNIX SVRx code, and how that might affect any ruling on IBM's CC-10.

My personal view of this - from a strictly IANAL viewpoint - is that ownership is not likely to be decided in CC-10, and that it really won't make any difference (right now).

Before the court ever reaches the question of ownership of any code in relation to CC-10, they first must be informed which code is being discussed.

Here's my take...

Basic order of consideration: 1) Infringing code, 2) infringed code --> 3) Infringement, 4) Ownership.

First thing to be considered is any Linux code that TSG specifically says is infringing on their intellectual property.

Next, to be looked at is which code TSG claims rights to is being infringed.

Then the usual tossing out of non-protectable stuff and matching to see if there IS infringement.

If there IS infringement, then and only then does one get to determining if TSG actually owns the rights to the infringed code.

(Up to that point it not being known which code to validate ownership of.)

Assuming that we are correct in guessing that no infringing code nor infringed code has been shown with sufficient specificity by TSG to show infringement, there is nothing to try to determine ownership of, and the question of UNIX copyrights is never reached.

On a different tack entirely, I believe that if one goes back to a point prior to the sale of the UNIX properties by AT&T to Novell, that AT&T did not transfer more than copyrights to some manuals and random documents to Novell.

Why do I say this? I don't believe that AT&T was ever in a position to actually copyright most of it's UNIX code, and in fact did not.

This means that AT&T could not transfer those copyrights to Novell because it didn't actually have any to transfer.

Up until AT&T was broken up by the consent decree watched over by Judge Green (effective date: 01JAN1984) AT&T had only protected it's code with contracts and agreements, and essentially depended on 'trade secret' to protect it's code. This is despite releasing it's code to any university that asked for it, for roughly the cost of copying and media.

Since nearly anyone studying computers at a university in those years likely had at least some access to the AT&T source code, 'trade secret' protection was very spotty, if it even existed. Also notable were the many books that discussed UNIX code in detail...

Another point that argues Novell did not receive massive copyrights to UNIX SVRx is that just last year both Novell and TSG filed for nice, fresh copyrights on UNIX SVRx with the USPTO. No mention was made of the original AT&T copyrights for the same (nor can such be found). No mention was made of prior Novell copyrights for UNIX SVRx was made by either company filing, either.

It is doubtful, considering the previous repeated non-copyrighted release of UNIX source by AT&T, and considering the amount of BSD code added to UNIX IV and V while I was at Bell Labs, if AT&T could have legitimately copyrighted more than a small portion of their source code.

When Novell became the ostensible owner of the AT&T UNIX empire, It is interesting that they found difficulties when considering release of UNIX code to the public domain - they said publicly at that time that so much of it was owned by others that it was too tangled a web to sort out.

So, back to ownership, infringing, and infringed code in IBM's CC-10...

The SCO Group likely didn't get copyrights for the UNIX SVRx source code from the Santa Cruz Organization when they purchased two of their divisions, because the Santa Cruz Organization hadn't gotten the copyrights from Novell, because Novell hadn't gotten the copyrights from AT&T, because AT&T hadn't bothered to copyright the code.

In other words, the copyrights for the majority of UNIX SVRx never existed...

Even if they did, though, that question may never be reached in deciding CC-10.

(All the above is simply my lay opinion)

Take care,

---
Tom
Engineer (ret.)
We miss you, Moogy. Peace.

[ Reply to This | # ]

OT: IBM-314, Novell-50
Authored by: Anonymous on Wednesday, October 06 2004 @ 11:27 PM EDT
SCO's ex parte motions to file over length memos in their reply supplemental memos on discovery and Novell's motion to dismiss. 26 and 40 pages excluding face, TOC, etc.

Amusing typo in Novell-50

Novell's second Motion to Dismiss seeks complete, dispositive relief at the beginning stage of this litigation. Given the importance of the issues to SCO, it is necessary for SCO to fully address, clarify and rebut IBM's arguments and explain to the Court why Novell's second Motion to Dismiss should be denied in its entirety.


The memos are so similar in terms of wording, that one might even believe that they cut'n'pasted to one to make the other, and forgot to do any proof reading.

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

I miss Darl. He was much more entertaining.
Authored by: Anonymous on Thursday, October 07 2004 @ 08:07 AM EDT

This was much more fun when Darl used to tell everyone his version of the story...

Well, at least we still have Laura Didio. I mean: where is she in a time like this?

[ Reply to This | # ]

OT - what about SCO's motion to unseal docs
Authored by: Anonymous on Thursday, October 07 2004 @ 08:57 AM EDT
Back on Sept. 18, reporter Maureen O'Gara wrote
that SCO would be moving to unseal "almost all"
the documents in this case. Has there been any
such motion to date?

[ Reply to This | # ]

SCO Tells the Red Hat Judge Their Version of SCO v. IBM
Authored by: elderlycynic on Thursday, October 07 2004 @ 09:12 AM EDT
Hmm. If I were the judge, I would be a little peeved, and
would ask SCO's lawyers why they stated that a motion was
pending in a memorandum dated 4 days after an order had
denied the motion. In the absence of a good reason and a
suitably fulsome apology, I would be annoyed.

What action that will translate into, I can't guess, but it
is pretty close to misleading the court.

[ Reply to This | # ]
Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details ) 		Site layout based on Woodlands theme by Bryan Bell.
Groklaw logo by John Crowley.
News Picks logo by Ted Thompson.
Powered By GeekLog
Created this page in 0.05 seconds