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
We Have a Winner for Best FUD of the Day
Saturday, February 12 2005 @ 09:32 AM EST

SCO has apparently been busy trying to convince reporters that their bludgeoning by Judge Kimball was actually a great victory. Steven J. Vaughan-Nichols in his article, "What Comes The Day After SCO Dies?", says this:

Some folks I know over at SCO are peeved that no one sees that they won a victory in the latest clash in the SCO vs. IBM saga.

One such objector said, "If the whole world took everything that some people said as the gospel truth, then no, this wouldn't look very good for SCO. How they're able to take the judge's denial of all of IBM's Preliminary Summary Judgments and say that this is an awful day for SCO is beyond me though. I wouldn't say that it was a win for either side, but it also wasn't a one-sided loss for SCO as some would have the world believe."

Vaughan-Nichols writes that if this was in any way a victory for SCO, it was a Pyrrhic victory. So he goes on to imagine what will happen to SCO next, what kind of death they will have. He believes they won't linger and die slowly. It's will be more like a massive heart attack.

So they're working the phones, I gather, and some journalists are responding.

The Seattle Times stresses that the judge rejected IBM's "petition to dismiss parts of SCO suit," natch. It's too late to matter, though. But it's fun to watch. Maureen O'Gara gets an honorable mention for her spin, namely that the Order means the case may go to trial after all. I guess she missed the part where the judge told IBM they can renew or refile the second discovery is finished. I also thought it didn't merit first place because it was sort of just parroting SCO's released statement that they looked forward to their day in court. Say, isn't that what all the Enron defendants said?

And Laura DiDio almost won with her appraisal that there is still a copyright cloud over Linux, the day after the Judge said there is no credible evidence of any such thing. But can anyone top this EETimes paragraph for pure FUD upside-downness?

U.S. District Judge Dale Kimball refused IBM's request on Wednesday (Feb. 9), citing previous statements by SCO executives that parts of its proprietary Unix code had been copied for use in freely distributed Linux operating system software.

Priceless, no? Such devilish subtlety. So I say we have a winner.

Of course, I wouldn't want you to think I have a bias and only report pro-SCO reactions, so here's Larry Rosen, quoted by Vaughan-Nichols, who said the judge was just making sure there is no basis for SCO to appeal and added, "We should let SCO and IBM continue to battle over the remaining contract causes of action until, ultimately, SCO will crawl back into its grave with the stake in its evil heart."

A number of "experts" pointed out that it is still possible that SCO can find some evidence of copyright infringement in the additional discovery that has just been ordered turned over to them. That is true. It is conceivable, although personally I doubt it. However, that doesn't change the fact that the judge, who has seen all the evidence, sealed and unsealed, has gone on record as saying that they have presented no credible evidence of copyright infringement to date.

That would mean, one assumes, that their public statements alleging a mountain of evidence of copyright infringement were not founded on any proof in hand at the time the statements were made. That puts SCO seriously in hot water, with respect to the Lanham Act. Lamlaw puts it this way:

"This early effort by IBM also makes it clear to the court now that when SCO made all of those public accusations, SCO did not have sufficient evidence of any potential copyright violations. So even if SCO scrapes up some stuff as a result of the discovery from this time forward, it will be clear to the judge that false statements were in fact made previously. In other words, when the public statements were made they were known to be false. And that imposes a very real possibility of judgments against SCO (even if they do scrape up some stuff). The test will be whether statements were false at the time and whether SCO knew they were false at the time. Should it turn out that SCO finds some stuff, SCO could still lose a judgment against them for the false public statements. Clearly SCO's many public statements are already front and center as far as the judge is concerned. He has already referenced them in this order. So the judge is on top of it all."

If you say or write negative things about someone, and they are not true, and especially if you know when you say them that you have no proof to back up the statement, and it turns out that what you said or wrote is demonstrably not true, it's called libel or slander. It doesn't even matter if you believed what you said or wrote was true. Judge Kimball has just said that SCO has presented no evidence to support those statements it made trashing IBM. What is there, then, that can possibly absolve them of that or diminish their liability, even if they later find some violation? Not only is this serious for SCO in the IBM case in terms of damages, I am sure Red Hat is positively salivating for their turn at bat.

I see only one hope for SCO, one other possibility. SCO might have some evidence that, for one reason or another, they are not presenting, but if that turns out to be so, they are in hot water of a different kind.

All I can say, then, is, may SCO continue to have many more such "victories" until there is nothing left of them but an old blues song.


  


We Have a Winner for Best FUD of the Day | 202 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
We Have a Winner for Best FUD of the Day
Authored by: Toon Moene on Saturday, February 12 2005 @ 09:45 AM EST
> But can anyone top this EETimes paragraph for pure FUD
> upside-downness?

> U.S. District Judge Dale Kimball refused IBM's request
> on Wednesday (Feb. 9), citing previous statements by SCO
> executives that parts of its proprietary Unix code had
> been copied for use in freely distributed Linux operating
> system software.

Hmm, the ability to read is apparently not a prerogative to become a journalist
at EEtimes.

---
Toon Moene (A GNU Fortran maintainer and physicist at large)

[ Reply to This | # ]

Sincerely, what would you do?
Authored by: Anonymous on Saturday, February 12 2005 @ 09:46 AM EST
Sincerely, what would you [Groklawers] do if you were in SCO's shoes? If you were a employee of SCO, your responsibility would be to increase and maximize shareholder value. I'd do the same. You do not expect SCO to say, "...by the way, we lost a major battle here...blah, blah, blah..."

I am dead positive SCO's lawyers and management know exactly what is happening.

Cb..

[ Reply to This | # ]

Corrections here
Authored by: rm6990 on Saturday, February 12 2005 @ 09:50 AM EST
Corrections here please.

[ Reply to This | # ]

OT Here
Authored by: rm6990 on Saturday, February 12 2005 @ 10:02 AM EST
OT Here please.

[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: tredman on Saturday, February 12 2005 @ 10:28 AM EST
"I see only one hope for SCO, one other possibility. SCO might have some
evidence that, for one reason or another, they are not presenting, but if that
turns out to be so, they are in hot water of a different kind." - PJ

This brings back wispy memories of Mr. Blepp and the briefcase full of secrets
(think Pulp Fiction).

"Blepp explains this with the special strategy in court cases in the USA.
'You don't show all your stuff at once at the beginning but rather step by
step'." - Spiegel Interview, April 13, 2004

If that turns out to be true, and SCO miraculously presents evidence at the 11th
hour, valid or not, there would be hell to pay, since IBM has already pointed
this out to the judges.

"As SCO representatives have stated, it has been the company's strategy to
obfuscate its alleged evidence. (See Ex. 3l; Ex. 32.) For example, SCO's counsel
indicated in an interview with Maureen O'Gara of LinuxGram in March 2003, at the
beginning of the case, that SCO "doesn't want IBM to know what they [SCO's
substantive claims] are". (Ex. 31.) Further, SCO Vice President Gregory
Blepp stated in a published interview in April 2004 that "You don't put
everything on the table at the start, but instead you bring out arguments and
evidence piece by piece (Ex. 32.)". - IBM's Memo In Support Of Its Cross
Motion For Partial Summary Judgment On Its Claim For Declatory Judgment Of
Non-Infringment

Judge Kimball did not mention this in IBM 398-1, but had plenty of other
memorable quotes from SCOX management to draw on for support, which basically
said the same thing.

I think, then, it's reasonably safe to assume that ALL parties in this case are
aware of this, so any last minute effort by SCOX to produce evidence,
particularly evidence that doesn't come from Magistrate Judge Wells' discovery
order, is going to be met with some harsh words, to say the very least.

Also, realizing that the end of discovery is a long way off, the next thing I'm
waiting for is the quarterly briefing to Judge Robinson in the RedHat case.
There's going to be so much spin going on that they're going to have to serve
their documents to the court with a side order of Dramamine.

The one thing that struck me, not initially at first but moreso now, is how much
of a really bad thing it was for SCOX to have Judge Kimball presiding in both
IBM and Novell cases. His order was strong evidence that he's starting to see
each case having a larger impact on the other than was originally projected.
It's almost as if he WANTS to declare copyright ownership in the IBM case,
because he knows that he can't do it directly in the Novell case. Showing who
actually owns the copyrights would make all the difference in the world to both
litigation efforts, regardless of who he ends up siding with.

Tim

[ Reply to This | # ]

Canopy liability?
Authored by: Anonymous on Saturday, February 12 2005 @ 10:40 AM EST
If it is found that Canopy has been directing SCOs action to a reasonable
extent, can IBM go after them for satisfaction of damages caused (slander, legal
fees, etc)? I doubt SCO will have enough money left after this to make it
worthwhile, otherwise.

[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: blacklight on Saturday, February 12 2005 @ 10:45 AM EST
"How they're able to take the judge's denial of all of BM's Preliminary
Summary Judgments and say that this is an awful day for SCO is beyond me
though" SCOG

... as it would be beyond any one who has not taken the time and trouble to go
through the judge's rationale and thoroughly assimilate it. I have to say that
SCOG has led a charmed life so far: launching a lawsuit without the evidence to
back up its allegations, failing to substantiate its allegations, getting a
fishing license based on a judge's speculative rather than substantive
reasoning, getting two PSJs rejected as premature on judicial discretion and one
PSJ rejected on judicial discretion despite the judge's own reasoning and own
conclusion that it meets the standards for acceptance. SCOG gamed the Federal
legal system, but the Federal legal system is overly indulgent and is bending
itself backwards to allow itself to be gamed.

[ Reply to This | # ]

Blues Song
Authored by: Anonymous on Saturday, February 12 2005 @ 10:47 AM EST
Oh, Darly, trouble so hard,
Oh, Darly, trouble so hard,
Don't nobody know my troubles with SCO,
Don't nobody know my troubles with SCO.

[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: Ninthwave on Saturday, February 12 2005 @ 11:18 AM EST
I am sorry I believe that Didio is the best FUD as I pointed out in the OT
thread from the Dutch Parliment story. Didio is setting up to switch their
story so they can continue spewing FUD. The tone of that story means as the
SCO case collapses Didio is going to probably write pieces on how she was conned
by SCO. This will try to keep credibility in her articles. And then you would
expect to see some pieces on how in researching the SCO case I have found out
how bad Linux is.

It is everything about FUD that is so bad and we can see it happening getting
ready to stab your most recent friends in while they are having problems and
still rolling out the good old FUD.

The above of course is not statement of fact and is just my opinion on how this
one small part of the tale will turn.

---
I was, I am, I will be.

[ Reply to This | # ]

Not really justice
Authored by: rweiler on Saturday, February 12 2005 @ 11:24 AM EST
The only problem that I have with SCO going down on the Lanham Act charge is
that they are the wrong defendant. It should really be Microsoft in the dock,
but, while they have never innovated anything in the software business, they
sure are clever about coming up with ways to get around the law, and this looks
like another such instance. SCO made the charges, but they did it with
Microsoft's money, and only SCO is going to get punished for it.

---
Sometimes the measured use of force is the only thing that keeps the world from
being ruled by force. -- G. W. Bush

[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: leguirerj on Saturday, February 12 2005 @ 11:36 AM EST
Laura DiDio believes there is a Copyright cloud over Linux because she was one
of the few that signed a non-disclosure agreement to see SCO's evidence and as
she said, It was very compelling. The reason Judge Kimball hasn't seen any
copyright evidence is because he refused to sign a NDA, since it would hamper
his job as a judge. SCO and their Lawyers are waiting for that Perry Mason
moment when they can bring it forth at the last moment, catching IBM and the
FOSS crowd unawares. They have to just survive more victories like this one
until then.

[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: Anonymous on Saturday, February 12 2005 @ 11:38 AM EST
That Laura DiDio is such a tease. Why should she let the
judge struggle the way he is, when she could just tell
him all about the infringing code that *she* saw when she
went around to SCO headquarters?

Given her comments about the black cloud over linux's IP
origins, she wants to watch that IBM don't start bringing
a Lanham Act lawsuit against *her*.

[ Reply to This | # ]

Compelled discovery
Authored by: gvc on Saturday, February 12 2005 @ 01:00 PM EST
PJ says: "I see only one hope for SCO, one other possibility. SCO might
have some evidence that, for one reason or another, they are not presenting, but
if that turns out to be so, they are in hot water of a different kind."

I want to amplify this. SCO were compelled by judge Wells to disclose
"with specificity" any evidence of this kind. If they have knowingly
witheld such evidence, they are in very hot water indeed. INAL, but it would
seem to me that SCO would be inviting many sanctions should they admit to
witholding evidence, likely including suppression of the evidence witheld.

[ Reply to This | # ]

SCO Wins the Day and many More Months
Authored by: webster on Saturday, February 12 2005 @ 01:36 PM EST
SCO euphoria is perfectly understandable. Despite Judge Kimble saying the PSJ
is warranted by the lack of copyright infringement evidence, he spared SCO an
adverse judgment. They feel like the firing squad missed, the electric chair
shorted out, they fell off the gallows. They live to FUDge for many more
months. They must be surprised and pleased. Let free fans have spice with that
crow.

---
webster

[ Reply to This | # ]

Do I have this schedule right?
Authored by: Anonymous on Saturday, February 12 2005 @ 02:13 PM EST
First, the end of discovery is indeterminate at this point -- IBM and SCOX lawyers get to argue noearlier than March 25 whether it ends, say, March 26, 2005 (the presumptive IBM position) or March 26, 27005 (after all, it will take the remaining "independent" SCOX programming expert 25,000 man-years to read all the code IBM has already sent over). And all of that could be mooted by the outcome of IBM's appeal of the unlimited fishing expedi - err, Judge Wells' amended discovery order. Say they compromise on September 1, 2005.

Second, whenever Judges Wells (or her judicial overseers) and Kimball cut off the farce, I mean, discovery, we can expect IBM to present renewed or new motions for preliminary summary judgement the next day; say 9/2/2005.

Now at that point BSF and SCOX need to panic, because they then have 30 days to answer all the mail, 10/2/05. Despite the fact they may have another 6 months before any trial would start, they would have only 30 days to outline what they found in pickup trucks of DVDs that might be admissible in a trial to keep the whole case from being tossed out. And oh, Judge K. has noted he expects to see proof they own any copyrights, or that will be the first part of the case tossed.

Is that what all the "celebrating" is over? SCOX is gonna be in a world of hurt when discovery ends? If so, celebration seems a bit premature, since we're not even sure when they'll all get together to schedule it.

(Grumble mode on) I want fireworks! It's late, we're going into extra innings! Blech! SCOX lawyers are throwing pro-quality curves and knuckleballs, and their collective honors are putting Little Leaguers in to bat! Let's get this show on the road! It's dangerous to play with these characters, one of the SCOX batters might accidentally wake up and get his bat in the way of a soft pitch! C'mon, judge! Knock 'em outta here!

[ Reply to This | # ]

What constitutes "proof"?
Authored by: meshuggeneh on Saturday, February 12 2005 @ 03:02 PM EST
If you say or write negative things about someone, and they are not true, and especially if you know when you say them that you have no proof to back up the statement, and it turns out that what you said or wrote is demonstrably not true, it's called libel or slander.
In this case, what constitutes proof of copyright infringement? Won't Lanham Act sanctions be predicated on what Darl & Cie. "believed" at the time? Won't it be a difficult thing to do to demonstrate they went ahead with the accusation without sufficient proof?

What's a lawyer's take on that?

-Meshuggeneh

[ Reply to This | # ]

  • What constitutes "proof"? - Authored by: Anonymous on Saturday, February 12 2005 @ 04:43 PM EST
  • Yep - Authored by: Anonymous on Saturday, February 12 2005 @ 04:56 PM EST
SCO wins
Authored by: Anonymous on Saturday, February 12 2005 @ 04:18 PM EST
It is obvious that Judge Kimball intended to rule against IBM on its 8th
counterclaim against SCO for copyright infringement.

1). There is no dispute that IBM owns the code it contributed to Linux. Even SCO
doesn't dispute that IBM owns the code. SCO claims "contractual"
rights but doesn't dispute ownership by IBM.

2). SCO freely admits copying the IBM code.

Remember Marbux saying:

"Judge Kimball said in his IBM case ruling, "[t]o prove copyright
infringement, SCO must establish (1) that SCO owns valid copyrights in the UNIX
software, and (2) that IBM has copied protectable elements of the allegedly
copyrighted UNIX software." Ruling, footnote 3."

The same thing holds for IBM. The Summary Judgment request by IBM could have
been determined purely as a matter of law --- no discovery is involved and no
disputed facts are involved.

Denial of PSJ on the 8th Counterclaim is definitely a loss for IBM and a big win
for SCO. It tells us SCO was right concerning the GPL.

LEGAL BEAGLE



[ Reply to This | # ]

QED
Authored by: darkonc on Saturday, February 12 2005 @ 04:22 PM EST
SCO didn't just claim that LINUX violated their copyrights. They claimed that they had proof. Thus, even if they manage to find some credible 'proof' (whether it survives a Jury or not), their lack of any proof now means that their statements were knowingly false at the time they spoke them. Proving that Linux really is innocent would just be icing on the cake, in terms of adding to the pool of false statements.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

  • QED - Authored by: John Hasler on Saturday, February 12 2005 @ 04:35 PM EST
SEC Filings
Authored by: Anonymous on Saturday, February 12 2005 @ 04:33 PM EST
I seem to recall that CEOs now have to sign documents as to the veracity of
their SEC filings; can anyone clarify?

Can anyone also outline:
- Whether SCO's SEC filings contain any statements that might be of dubious
merit, if they indeed don't have any evidence for their claims.
- What potential response to such a transgression might be, post-Enron?

[ Reply to This | # ]

  • SEC Filings - Authored by: MadScientist on Saturday, February 12 2005 @ 04:49 PM EST
    • SEC Filings - Authored by: Anonymous on Saturday, February 12 2005 @ 04:53 PM EST
    • SEC Filings - Authored by: Jude on Saturday, February 12 2005 @ 06:36 PM EST
      • SEC Filings - Authored by: Anonymous on Saturday, February 12 2005 @ 08:34 PM EST
So why did SCO start all this?
Authored by: Powerin on Saturday, February 12 2005 @ 04:54 PM EST
Again I find myself asking why SCO started a $multi-million lawsuit when, as we
now see, they have presented no credible evidence. All this discovery seems a
desperate attempt to find something....anything...after realising they have
nothing.

When SCO showed a code snippet to those who signed an NDA, if memory serves, it
was found to be public domain BSD code. Is it possible that the mountain of
infringing code they thought they had has, on closer examination, all been found
to be in the public domain and now they have nothing?


[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: Anonymous on Saturday, February 12 2005 @ 10:38 PM EST
Baghdad Bob Lives !!!!!!!!

[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: Anonymous on Sunday, February 13 2005 @ 08:21 AM EST
Not to mention that the "false" statements drove up the price of SCO
stock. Did I heare someone mention securities fraud?

[ Reply to This | # ]

We Have a Winner for Best FUD of the Day
Authored by: k12linux on Sunday, February 13 2005 @ 02:52 PM EST
Even better!

---
- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux

[ Reply to This | # ]

Stock manipulation and fraud
Authored by: ak on Sunday, February 13 2005 @ 04:29 PM EST
If you say or write negative things about someone, and they are not true, and especially if you know when you say them that you have no proof to back up the statement, and it turns out that what you said or wrote is demonstrably not true, it's called libel or slander. It doesn't even matter if you believed what you said or wrote was true.

In the case of SCO it probably is even worse: They always knew that their statements were and are wrong. The statements had an effect on the stock market. We are talking about stock manipulation here.

They upt to now are trying to sell "licenses" using those statements. We are talking about fraud here.

[ Reply to This | # ]

Correct, but so very, very wrong
Authored by: Anonymous on Sunday, February 13 2005 @ 05:35 PM EST

SCO are within a whisker of winning. They are winning their game according to the rules with which they are playing. It's not IBM versus SCO, it's SCO versus the justice system, and SCO are getting very close to their end game.

If IBM's appeal against the discovery order fails, then I fully expect IBM to will settle, and/or buy SCO. When they do, oh boy will I be back here to say "Told you so," but I'll take no pleasure in it.

[ Reply to This | # ]

Libel/slander: malice?
Authored by: Anonymous on Monday, February 14 2005 @ 09:16 AM EST

Doesn't slander (or libel) have to include malice?

-- John Stracke

[ 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 )