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| Judge Denies SCO Motion To Stay DaimlerChrysler Until IBM Decided - Updated |
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Tuesday, November 30 2004 @ 07:50 AM EST
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The judge in the SCO v. DaimlerChrysler case, the Honorable Rae Lee Chabot, has denied a SCO motion [PDF] for a stay of their case until after the IBM case is decided, I have just been informed by the Clerk of the Court. The hearing was on November 24. Another loss for SCO. What? No SCO press release? The case is now set to go forward on January 7 at 8:30 AM. Hopefully, some of you will be able to attend the hearing. Their motion told the judge that it would be "a waste of valuable judicial and attorney resources to proceed with a case evaluation and a trial on SCO's remaining damage claim as to timeliness, followed by an appeal of this Court's order regarding the sufficiency of DCX's certification, when these issues may become moot upon the conclusion of the pending summary judgment proceeding in the IBM case." They should have thought of that before they filed the lawsuit, I'm thinking.
Note that they mention appealing the DC judge's order, wherein she ruled DC had complied sufficiently with the certification requirements under their license, if not -- perhaps -- in a timely fashion. I gather they would have liked to postpone that expense for now, because it all becomes moot if they lose in the IBM case. If, in contrast, in a remote-hope scenario, they win, they think they would have a much better shot in an appeal of what they describe as her "narrow" ruling about what certification efforts licensees owe to SCO and probably a better chance with her on the timeliness question. They perhaps also would have liked to avoid another headline about a loss in yet another court, which seems very possible.
If IBM wins, I guess they hoped DC would just fade away. I gather they would rather go out with a whimper than with a media bang. Naturally, DC had zero interest in any stay and when SCO asked them to consent, they declined. They told SCO that unless SCO goes forward now, "then it insists that SCO dismiss its remaining claim with prejudice." DC has probably had a belly full of SCO already, and they naturally would like this settled and done with. I think we may be seeing the first indication of what happens when you put a cap on legal fees. Moral of the story? Pay your lawyer. So, January 7 at 8:30 AM it is.
Update: I have the court's recorder's transcript on paper. I've hand typed it, and I'll put it after the motion.
*********************************************
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
___________________________________
THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff,
vs.
DAIMLERCHRYSLER
CORPORATION,
a Delaware
corporation,
Defendant.
__________________________________
Case No. 04-056587-CK
Hon. Rae Lee Chabot
Hearing Date: November 24, 2004
_______________________________________
JOEL H. SERLIN (P20224)
BARRY M. ROSENBAUM (P26487)
Attorneys for Plaintiff
[address, phone]
JAMES P. FEENEY (P13335)
THOMAS S. BISHOFF (P53753)
STEPHEN L. TUPPER (P53918)
Attorney for Defendants
[address, phone]
______________________________________
MOTION FOR STAY OF PROCEEDINGS
NOW COMES Plaintiff The SCO Group, Inc., by and through its attorneys, Seyburn, Kahn, Ginn, Bess & Serlin, P.C., and moves this Honorable Court to stay the proceedings in this matter for a period of time to be determined by the Court for the following stated reasons:
1. On March 3, 2004, Plaintiff The SCO Group, Inc. ("SCO") filed a Complaint in this matter alleging that Defendant DaimlerChrysler Corporation ("DCX") had breached a license agreement between the parties, governing the use of SCO's UNIX computer operating system.
2. Specifically, SCO alleged that DCX, as an end-user had failed to comply with the agreement's certification requirements governing its use of the UNIX operating system, by failing to respond to SCO's request that DCX so certify its compliance with the terms of the license agreement between the parties.
3. On August 9, 2004, this Court, pursuant to a motion filed by DCX, entered an Order Granting in Part and Denying in Part Defendant's Motion for Summary Disposition ("Order"), holding that DCX had satisfied its certification obligation, but finding an issue of fact as to whether DCX had been timely in serving its certification upon SCO.
4. The remaining claim is scheduled for case evaluation on November 30, 2004 and trial on January 11,, 2005.
5. SCO is currently engaged in litigation in the United States District Court for the District of Utah with International Business Machines Corporation ("IBM") over the interpretation of a license agreement between SCO and IBM that is substantially similar to the license agreement in the case before this Court. That case is SCO Group, Inc. v. International Business Machines Corporation, No. 2:03CV294.
6. IBM has argued that the license agreements, contrary to their express terms, protect against only the literal copying of UNIX source code, while SCO argued that the protections sweep broader, to protect, among other things, all modifications and derivatives prepared by licensees based on the original UNIX source code. IBM has filed a motion for summary judgment based on its interpretation of the license agreements, which motion is currently being briefed. No hearing date has been set on the motions, but it is likely that they will be heard sometime early next year.
7. A ruling in the IBM case will provide important guidance concerning the obligations of end users like DCX under the certification requirement at issue here. Specifically, as noted above, a resolution of the contract-interpretation issue currently pending in the IBM case will permit all parties to know with some certainty the scope of the obligations and restrictions under the license agreements to which licensees must certify their compliance.
8. Given this court's narrow interpretation of the certification requirement contained in the license agreement, it may no longer be productive for SCO to attempt to gather information from UNIX end users by means of requests for certification until a ruling on the contract issue in the IBM case is forthcoming.
9. Moreover, if SCO's interpretation of the license agreement is rejected by the court in the IBM case, SCO may choose never to litigate the sufficiency and timeliness of certification prepared by DCX and other end users of the UNIX operating system.
10. SCO is engaged in two other disputes relating to its UNIX rights in federal court in Nevada and Delaware. Both of these cases have been stayed by the respective federal judges pending the resolution of the key issues in the IBM case. Copies of the stay orders from these Courts are attached hereto.
11. In the two cases that have been stayed, SCO has been filing court-ordered periodic reports on the progress of the IBM case.
12. It would be a waste of valuable judicial and attorney resources to proceed with a case evaluation and a trial on SCO's remaining damage claim as to timeliness, followed by an appeal of this Court's order regarding the sufficiency of DCX's certification, when these issues may become moot upon the conclusion of the pending summary judgment proceeding in the IBM case.
13. Courts have the inherent power to control their dockets, and a motion for stay is directed to the courts's sound discretion. Amersham International, PLC f. Corning Glass Works, 618 F Supp 507, 509 (ED Mich, 1984).
14. SCO requested that DCX consent to a stay of proceedings in October 2004, but DCX indicated it would not consent to a stay; DCX has further stated that if SCO does not intend to pursue the claim as to the timeliness of DCX's certification at this time, then it insists that SCO dismiss its remaining claim with prejudice.
WHEREFORE, Plaintiff The SCO Group, Inc. respectfully requests that this Honorable Court stay the proceedings in this matter for a period of time to be set by the Court.
Respectfully submitted,
SEYBURN, KAHN, GINN,
BESS AND SERLIN, P.C.
By: ____[signature]_____
Barry M. Rosenbaum (P26487)
Attorneys for Plaintiff
[address, phone]
Dated: November 17, 2004
Steven I. Froot, Esq.
Co-Counsel for Plaintiff
[address, phone]
Mark J. Heise, Esq.
Co-Counsel for Plaintiff
[address, phone]
********************************
********************************
*******************************
STATE OF MICHIGAN
6th JUDICIAL CIRCUIT COURT FOR THE COUNTY OF OAKLAND
SCO,
Plaintif,
v
DAIMLER CHRYSLER,
Defendant.
________________
File No. 2004-05687-CK
MOTION FOR STAY OF PROCEEDINGS
BEFORE THE HONORABLE RAE LEE CHABOT, CIRCUIT COURT JUDGE Pontiac, Michigan - Wednesday, November 24, 2004
APPEARANCES:
For the Plaintiff:
Barry M. Rosenbaum (P26487)
[address, phone]
For the Defendant:
James Feeney (P13335)
[address, phone]
Pontiac, Michigan
Wednesday, November 24, 2004
THE CLERK: Now calling 2004-056587-CK, SCO versus Daimler Chrysler.
MR. ROSENBAUM: Morning, your Honor.
THE COURT: You guys again.
MR. ROSENBAUM: It's been a few months. Barry Rosenbaum and Steven Freud appearing on behalf of the Plaintiff, your Honor.
MR. FEENEY: James Feeney appearing on behalf of Daimler Chrysler.
MR. ROSENBAUM: Well, your Honor, this is our motion for stay of proceedings in this matter. We're seeking to stay the case until a federal court in Utah in the matter of SCO Group versus IBM rules on a pending motion for summary judgment scheduled -- well, it's supposed to be heard early next year. Let me say right out of the shoot that Daimler Chrysler claims in their -- in their response that this Court does not have the right to stay these proceedings unless the other case has identical parties and identical issues. As we've indicated in our reply memorandum, that is clearly not the law in Michigan. There is no such requirement in seeking a stay. As Daimler concedes in its response, this Court has the inherent power to manage its own docket for --
THE COURT: Okay, but let me say this, the only issue before this Court now is the timeliness issue.
MR. ROSENBAUM: That's correct, your Honor.
THE COURT: I don't think that's the issue in Utah.
MR. ROSENBAUM: It's not the issue, but there is a practical reason why disposition in Utah will impact on further proceedings, and the understanding that the only issue before this Court is the timeliness issue, there is, of course, still we have to deal with the effects of this Court's ruling last July, which was the major ruling in this case dealing with the certification.
THE COURT: Right, I've already decided it.
MR. ROSENBAUM: You have decided that but what we're hoping to avoid, your Honor, if possible, is having to immediately take an appeal from that ruling if we dispose of this case now. And if, in fact, this case ends up being dismissed --
THE COURT: If we dispose of this case now, you mean dismiss it?
MR. ROSENBAUM: Dismiss it, yes, your Honor. We would --
THE COURT: Okay.
MR. ROSENBAUM: -- then have to go forward on an appeal.
THE COURT: Right.
MR. ROSENBAUM: -- in order to avoid the collateral estoppel effects of your ruling -- possible collateral estoppel effects.
THE COURT: Okay.
MR. ROSENBAUM: Possible.
THE COURT: Okay.
MR ROSENBAUM: Let me qualify that.
THE COURT: Yes.
MR. ROSENBAUM: So, what we're suggesting to the Court, as two other federal courts have done, and we've indicated that there are two other cases involving the SCO Group and other end users that have been stayed by the respective federal judges pending the outcome in IBM because the core issue in the IBM case is so critical and so crucial, that it may impact on whether or not the cases go forward in these other matters. In particular, in our case we're dealing with a certification requirement which is a information-gathering. The issue in IBM goes to the actual scope of the licensing agreement, the right to use the UNIX system.
THE COURT: Right.
MR. ROSENBAUM: And I'm going to make it into as simple terms as I can, Mr. Freud as a much greater knowledge of the detail, but as I understand it in the IBM case, what's going to be decided by the motion for summary judgment is whether or not restrictions that come along with the license are going to be broadly contstrued in favor of the SCO Group, then the certification requirement becomes very, very important in terms of gathering information to find out how end users, such as Daimler Chrysler, are using the UNIX system.
If, on the other hand, the judge in Utah decides that the license restrictions and use of the license is to be very narrowly construed --
THE COURT: Right.
MR. ROSENBAUM: -- then of course the certification requirement becomes less valuable because the rights that we have are going to be diminished as a result of that ruling in Utah. And if, in fact, the certification becomes less valuable, there's not as much incentive, if you will, for us to -- for SCO to go ahead and challenge this Court's ruling where you narrowly construed the certification requirement.
THE COURT: Okay, I understand.
MR. ROSENBAUM: And that's why -- and it's not like, your Honor, we've -- we've spent months and months in litigation and hundreds of thousands --
THE COURT: Right.
MR. ROSENBAUM: -- of dollars in attorney fees, both sides did nothing after this Court's ruling because you dealt with a major issue in this case.
THE COURT: Right.
MR. ROSENBAUM: Not to diminish the significance of timeliness, the reason we filed the case in the first place is because we were -- received no response whatsoever from Daimler Chrysler to our letter asking them to certify. They didn't respond at all.
So in effect, when we filed our lawsuit they did respond and our case -- you know, the reason we filed the lawsuit then was validated. But at this point in time, in light of this Court's ruling, it just doesn't make practical sense for us to either proceed to trial on the timeliness case or, more importantly, for us to take an immediate appeal if this case were dismissed of your ruling on the scope of the certification.
So for those reasons, we're asking that the Court stay the proceeding. We would periodically report as is the requirement in the other two federal cases I've cited.
THE COURT: Right.
MR. ROSENBAUM: And keep the Court apprised of what's going on in Utah.
THE COURT: I understand. Thank you.
MR. ROSENBAUM: Thank you, your Honor.
MR. FEENEY: Morning, your Honor. Your Honor, simply stated, the reasons that they want a stay are tactical. They're tactical from the point of view of the Plaintiff. They're entirely tactical. It's not about legal mootness, it's not about identicality of issues. The Utah case, in and of itself, will have zero legal effect on what happens here. The only issue before the Court now is timeliness. We have a case evaluation for which we have filed our statement next Tuesday at 1:20. We've got a January trial date. We didn't start the lawsuit, we have the right to have it resolved. If they don't -- if they disagree with the Court's ruling form last July, they ought to either dismiss this case and take an appeal, or litigate the timeliness issue and take an appeal. The only advantage here to a stay is to favor the tactical consideration of SCO and there's no other practical reason to do it and we'd ask you to deny the motion.
THE COURT: Anything further?
MR. ROSENBAUM: Well yes, your Honor, I mean --
THE COURT: I knew I was going to regret leaving that timeliness issue in there. I should have found a way to deal with it.
MR. ROSENBAUM: Well, as I've indicated, dismissal is not the preferred option. I mean, yes, it's a question of tactics. We're asking for what we think would be best for all parties. A stay means neither party spends anymore time or money on this matter, at least in the short term, including the Court.
THE COURT: I understand your purpose is economy of, you know, assets, working hours, yeah.
MR. ROSENBAUM: Resources. The Court's resources as well. It may be, and I emphasize "may," I'm certainly not going to guarantee it, but depending on the -- on what happens in Utah, it may be that this case ends up being dismissed voluntarily at some point down the line. But it may not be that case, your Honor, and in the meantime, we ought to give the court in Utah, which has the primary issue involving the UNIX license, the opportunity to rule and having -- and again, it's going to be short term. At least -- at the very least this is an '04 case, at the very least we could put a stay on --
THE COURT: I'm not -- I'm not convinced it's going to be short term.
MR. ROSENBAUM: But it could be. It could be. And --
THE COURT: I'm not --
MR. ROSENBAUM: -- your HOnor, if it's not -- if it's not so we come back in January or February and the Court said, you know, this case in Utah isn't going anywhere, I want to -- you guys have to either dismiss it or go to trial on the timeliness. I don't think a few months, your Honor, is that onerous of a request under the circumstances.
THE COURT: I don't know. Okay, here is my view on this. I guess one of the things that concerns me when I look at this is that the issue that I would be staying this action for is not my issue. The only issue I have is timeliness. That's the only issue. I decided the other one and I understand you don't want to spend assets appealing me right now, but I also agree with the Defendants that they did not ask to be invited into court. They have a right, now that they have been, to have this issue resolved. And I understand it's going to go on in other forums, you know, after I'm done, but that's the way it works. I'm not convinced that there is a reason for a stay and I'm going to deny the motion.
MR. ROSENBAUM: Your Honor, may we approach the Bench --
THE COURT: Yes.
MR. ROSENBAUM: -- on the scheduling issue? Thank you.
(Bench Conference held from 9:01:06 a.m. to 9:02:35 a.m.)
(At 9:02:38 a.m., hearing concluded)
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| Authored by: N. on Tuesday, November 30 2004 @ 09:56 AM EST |
n/t
---
N.
(Recent [well, since mid-2003] convert to Linux)[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 09:57 AM EST |
| "Judge denies" made me wonder...
Loïc [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 09:59 AM EST |
Or whatever it is called?
We know they got their way, but I'd like to see how they did it. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 10:03 AM EST |
The right bracket in the signature at the bottom looks very much like a brace.
Loïc[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 10:16 AM EST |
Is the SCO dog wagging the legal tail or is the tail wagging the dog?
Don't lawyers work for money, and don't those billable hours add up quickly?
File and bill, file and bill, file and bill... that is the way the lawyers live.
The legal system, it's just another machine, and the machine needs it's oil.
And we can't live without the machine.
It's time that SCO turned theirs OFF!
[ Reply to This | # ]
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| Authored by: dwmosman on Tuesday, November 30 2004 @ 10:26 AM EST |
"12. It would be a waste of valuable judicial and attorney resources
to proceed with a case evaluation and a trial on SCO's remaining damage
claim..."
Heh, I think everyone, including the judge, agrees with
them on this phrase.
Douglas Mosman
The above
comments are mine and have all of the value of any unsolicited,
unvetted
blog posting, i.e., virtually none.
I expect them to be
treated in a manner commenserate with their value.
If you do not
take care for my comments in a manner that I like, I reserve
the right
to... post less often, or to... go do
something else.[ Reply to This | # ]
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| Authored by: Fredric on Tuesday, November 30 2004 @ 10:31 AM EST |
| I SCO believe thay can not win. Do they have to play?
I am just curious,
does the SCO laywers have to do more than
just appear at the
court?
They will loose, of course, but is there some rule how much money you
have to spend?
---
/Fredric Fredricson [ Reply to This | # ]
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| Authored by: blacklight on Tuesday, November 30 2004 @ 10:39 AM EST |
I guess the whole point of SCOG asking for a stay is to try for a retrial of the
DC case - only SCOG's attorneys would shrink from admitting that they want a de
facto retrial. I notice that not one of SCOG's arguments in this pleading is
germane to the issue at hand, which is the timeliness of DC's response. Typical.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 10:48 AM EST |
| The sooner the judges in the assorted SCO cases slap down this dog and pony
show, the sooner he can get back to clients who have a prayer of winning. Of
course, it's nice that SCO paid the bulk of his legal fees up front so he can
take those with him when he goes. [ Reply to This | # ]
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| Authored by: Groklaw Lurker on Tuesday, November 30 2004 @ 10:56 AM EST |
And SCO's rapidly diminishing financial resources, I'm puzzled by SCO's
continued pursuit of this case. Any win on the timeliness issue will surely be a
pyrrhic victory.
But then, this is Darl McBride after all, steadfastly piloting the SCO Valdez
toward the nearest shoals...
---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 11:21 AM EST |
| 11. In the two cases that have been stayed, SCO has
been filing
court-ordered periodic reports on the progress
of the IBM case. Has
something happened in the AZ
case that we have not had reported then ? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 11:30 AM EST |
I thought SCO claimed that thier DCX loss wasn't really a loss because it just
dealt with the timeliness of DCX's response to their request for certification.
The result was the only thing that DCX did wrong was they did not respond to SCO
within the time frame that SCO wanted them to do that in.
So, while we all know what SCO went after DCX because SCO thinks they use Linux,
their court papers do not show this.
How in the world can they say that this case is related to IBM? Did IBM not
answer in a timely manner either?[ Reply to This | # ]
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| Authored by: edal on Tuesday, November 30 2004 @ 11:48 AM EST |
I can't remember the exact quote (maybe someone else can help). Something about
the wheels of justice grinding very slowly but exceedingly fine.
Another good day and an excuse to crack open a beer when I get home.
Ed Almos
Budapest, Hungary[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 12:21 PM EST |
SCO will drop their claim against Daimler Chrysler. They will claim as a small
company (David fighting all these Goliaths), that they need to conserve their
resources for the key fight against IBM. This will look less bad for them than
losing outright on the minor remaining claim.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 12:38 PM EST |
There's no SCO press release on this because the whole DC case has become an
embarrasment to SCO. Even a victory regarding the "timeliness" is
worth almost nil.
As an observer, I take the "Motion to Stay" as meaning that SCO is
trying to hide it in the shadow of the IBM case. Whether they win or lose with
IBM, the win/loss to DC coming afterwards will be inconsequential.[ Reply to This | # ]
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| Authored by: AllParadox on Tuesday, November 30 2004 @ 12:42 PM EST |
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".
Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.
P.J. says you must be on your very best behavior.
If you want to comment on this thread, please post under the off-topic thread,
"OT", found above.
---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney[ Reply to This | # ]
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| Authored by: bstone on Tuesday, November 30 2004 @ 01:05 PM EST |
I don't get it. How does the IBM case relate in any way to a motion to stay
this case? As I understand it, the only thing left in this case is the question
of whether DC replied in a timely manner to SCO's demand letter, and all of the
issues other than that have been decided in favor of DC. How does the single
remaining issue of a possible late reply to SCO, with no damages to SCO that I
can see, since thr court has already decided that issue in DC's favor, depend in
any way on a "contract dispute" between IBM and SCO?
Given that, I think the judge is absolutely correct in denying the stay, and I'm
really looking forward to seeing what SCO thinks the "damages" to them
from what SCO thinks might have been a late response to what the court has
already decided was their unfounded claim against DC. Given that there was
nothing in the DC/SCO contract that required a 30 day time limit on responses,
and the 30 day limit is just something that SCO made up without even presenting
any justification for it, even to the court in their claim, I think it's pretty
obvious what the final decision will be if SCO does continue to press this
remaining issue in court.
If nothing else, DaimlerChrysler can respond with "well, your honor, it
took us that long to respond because we were really confused by SCO's claims,
and we HAD to spend that much time searching for something that might make sense
in their argument before responding. Ultimately, we gave up on finding
anything, and responded".[ Reply to This | # ]
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| Authored by: blacklight on Tuesday, November 30 2004 @ 02:01 PM EST |
"The case is now set to go forward on January 7 at 8:30 AM. Hopefully, some
of you will be able to attend the hearing. " PJ
Those of you are planning to show up should plan on coming early, skipping
breakfast if necessary. Otherwise, you might miss the whole show: last time,
Judge Chabot killed SCOG's original lawsuit within 15-20 minutes. I'd say at
this point that she could handle DC's timeliness issue within 5-10 minutes,
given the pathetic failure of SCOG's latest pleading to stay on topic.[ Reply to This | # ]
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| Authored by: Steve Martin on Tuesday, November 30 2004 @ 02:13 PM EST |
"Moreover, if SCO's interpretation of the license agreement
is rejected by the court in the IBM case, SCO may choose never to litigate the
sufficiency and timeliness of certification prepared by DCX and other end users
of the UNIX operating system."
Are TSG's lawyers even
paying attention? Judge Chabot just litigated the "sufficiency" of DC's
response! (I wonder how she felt when she read this?)
---
"When I say
something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: moonbroth on Tuesday, November 30 2004 @ 02:31 PM EST |
And their lawyers doze in court:
they're not trying to prove their fees aren't capped.
And all their filings are overlength,
but way too short on any facts.
Their whole case is crooked,
the people are crooked for sure.
And no-one knows if they've done more FUD
than they'll ever achieve by law...
This could be DaimlerChrysler, AutoZone,
Novell or Red Hat,
or I.B.M. or anywhere,
anywhere but here...
Anywhere but here.
And everyone from SCO
is just FUDding: they're so dutiful.
But when SCO's FUDmeisters get deposed
guess their story's not so beautiful.
'cos they started pump'n'dumping FUD
then found themselves in a war:
paralegal personality,
founding Groklaw...
This could be DaimlerChrysler, Autozone,
Novell or Red Hat,
or I.B.M. or anywhere,
anywhere but here...
anywhere but here.
-- an unauthorised derivative from "Rotterdam (or Anywhere)" by The
Beautiful South. Apologies for the sometimes dodgy scansion. (NB: I tried to
work the eagerly-anticipated red dress into verse 2 - no luck, but any help
gratefully received).
Cheers, Nick[ Reply to This | # ]
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- Red dress? - Authored by: Anonymous on Wednesday, December 01 2004 @ 12:49 PM EST
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| Authored by: Steve Martin on Tuesday, November 30 2004 @ 03:12 PM EST |
Note that they mention appealing the DC judge's order,
wherein she ruled DC had complied sufficiently with the certification
requirements under their license, if not -- perhaps -- in a timely
fashion.
IANAL (by a long shot), so I wonder if anyone
can enlighten us on this. It's my understanding that TSG can't appeal simply
because they lost, they must have some firm reason to think that things were not
properly done in order to have an appeal succeed. Can anyone speculate as to
what valid basis TSG might have for an appeal even to be heard on this case?
Seems to be that Judge Chabot came to a sound, reasoned decision that is
completely in accord with the terms of the license agreement (including the
issue of the time window for certification being an issue of fact for a
jury).
What the heck could TSG appeal, and how likely is it that an appeal court
would even agree to hear the case?
---
"When I say something, I put
my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: jim Reiter on Tuesday, November 30 2004 @ 03:22 PM EST |
TSG will drop the DCC case.
IANAL but I think the proper expression is "withdraw it's
complaint." or something like that.
BTW Microsucks lost the Bejing contract. Poor Microsucks. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 04:09 PM EST |
| Another loss for SCO.
Really? I'll be as glad as anyone here to see
SCO lose its lawsuits against IBM, Redhat, and Autozone. But is this little
motion important enough to call a "loss"? No important issue is at stake, no big
money, no earth-shaking consequences (in fact, no consequences of any kind). [ Reply to This | # ]
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| Authored by: Christian on Tuesday, November 30 2004 @ 04:53 PM EST |
| The way I read the complaint, the purpose is to delay this part of the trial
until SCO can get the judge's previous ruling overturned.
For example, take
"A ruling in the IBM case will provide important guidance concerning the
obligations of end users like DCX under the certification requirement at issue
here." This seems like a non sequitur. However, what I think SCO is really
saying is that the IBM case will prove that Linux is a derivative of UNIX SysV,
and this will in turn show that the certification request was legitimate,
contrary to the judge's previous ruling.
Possibly SCO's argument would be
that IBM added secret UNIXness to Linux that is not protected by copyright, and
the UNIX license restricts how DCX can use the secret UNIXness, hence the
certification request was legitimate. (Anything in Linux is public knowledge and
therefore not subject to the confidentiality clause, but SCO has ignored that so
far.)
Then we have, 8. Given this court's narrow interpretation
of the certification requirement contained in the license agreement, it may no
longer be productive for SCO to attempt to gather information from UNIX end
users by means of requests for certification until a ruling on the contract
issue in the IBM case is forthcoming.
What information is SCO
referring to? SCO is saying here that the purpose of the audit request was to
learn about the use of Linux by their UNIX licensees. This is another bullet in
the foot. SCO admits here that they were not interested how a company like DCX
was using the licensed UNIX software. In that case, how is SCO damaged by a
delay in receiving information that they admit that they don't want?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 07:38 PM EST |
Maureen O'Gara interceded in Federal Court in Utah
via Linuxgram.
http://www.linuxbusinessweek.com/lbw.cfm
Anon_Reporter[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 08:30 PM EST |
There are certain expenses, such as for expert testimony, that are not covered
by the legal cap. Can anyone hazard a guess at what this might amount to for
the upcoming DC trial?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 30 2004 @ 10:19 PM EST |
What a stupid motion. The IBM license is completely different from the DC
license -- the former gives IBM permission to sell the code to users, the latter
is a users license. That means the ruling on the IBM motion will have no
relevance to the DC case. That SCO knows this is indicated by the fact that it
made no specific arguments as to the relevance.
Of course, there is the relevance that if SCO loses, it will be a dead man
walking, but it doesn't want to mention that in a legal brief. [ Reply to This | # ]
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| Authored by: Fourmyle on Tuesday, November 30 2004 @ 10:28 PM EST |
Correct me if I misremember this but isn't this the case of not providing a
timely response to a single letter that had been sent to the wrong address ?
When does the clock start running in a situation like that? When the letter was
sent, when it was forwarded, when the lawsuit was filed?
The whole thing reminds me of that Douglas Adams line from "Hitch Hiker's
Guide to the Galaxy" about the notice being prominently displayed in a
locked filing cabinet in the back of a closet with a danger sign ( beware the
jaguar ? ) posted on the door.[ Reply to This | # ]
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| Authored by: Darkside on Tuesday, November 30 2004 @ 10:59 PM EST |
Moreover, if SCO's interpretation of the license agreement is
rejected by the court in the IBM case, SCO may choose never to litigate the
sufficiency and timeliness of certification prepared by DCX and other end users
of the UNIX operating system.
If this is a legitimate reason
for staying a case, then any case could be stayed by any claimant, simply by
asserting that they may never choose to litigate something. [ Reply to This | # ]
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| Authored by: Night Flyer on Wednesday, December 01 2004 @ 12:22 AM EST |
Though the license agreement with Chrysler Corporation (predecessor of
Daimler-Chrysler (DCX) who negotiated with SCO's predecessor) was similar to the
IBM license, I bet that IBM scrutinized and analyzed the details much closer
than Chrysler Corporation did.
I come to this conclusion because IBM intended to write and market software
based on the SCO-UNIX, and Chrysler only intended it for internal use.
Maybe SCO thinks it has found a weak link, and it considers DCX an opportunity.
I think that, if SCO waited 7 years before making an issue of no reply to
periodic requests for certification of SCO-UNIX on which DCX computers, then a
few months for this major multinational to reply is, IMHO, not unreasonable.
I consider this a waste of court time.
I think SCO is in for a disappointment.
I hope DCX is awarded costs before SCO runs out of money.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, December 01 2004 @ 01:03 AM EST |
SCO's argument for a stay is founded on argument that they already lost in the
DC case
If you recall, SCO seemed to be saying that because SCO felt Linux might
infringe their rights, DC's certification requirements would be broader than
those stated in the contract (e.g. SCO seem to think that DC might be required
to report Linux systems as UNIX SVRX systems or something like that - it's not
entirely clear what SCO thought - etc.)
If you were to accept SCO's argument in the previous paragraph, then there would
be overlap in the DC case with the IBM case, because the IBM case might
determine if Linux does infringe some SCO copyright or whatever.
However the court in DC already rejected this particular SCO argument. If you
recall DC said SCO had a single cause of action about the certification
requirement according to contract, and THAT was the only relevant issue for this
case. And the judge accepted DC's argument here.
SCO's attempt to stay the DC case, only makes sense if the court were to accept
the SCO argument in the DC case (about Linux activities and comparison of
Linux/UNIX being relevant to the DC case) - that the court already rejected.
This may be an attempt by SCO to reopen the issue that SCO already lost
or it may be an attempt by SCO to preserve the issue that SCO already lost in
the record (and they knew they'd lose this motion)
or it may be an attempt to avoid the DC-disaster hitting the fan for SCO too
early
Quatermass
IANAL IMHO etc
[ Reply to This | # ]
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| Authored by: moosie on Wednesday, December 01 2004 @ 01:20 AM EST |
This is funny. It seems that SCO cannot just "let this go" They had
their chance with DCXs reply, but they won't give up! No press, just get to
quietly go away.
- Moosie.
[ Reply to This | # ]
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| Authored by: webster on Wednesday, December 01 2004 @ 11:38 PM EST |
There won't be a full-blown trial. They won't show up or there will be a
stipulated trial which they will then lose, but then be able to appeal a final
order and/or the earlier order which wiped out their main interest in the case,
certifiying unix libraries in Linux or some such interpretative licensing.
"It can't be all bad. Someone is making money."
---
webster[ Reply to This | # ]
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