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Judge Kimball Signs Order Limiting IBM's 9th Counterclaim
Wednesday, August 03 2005 @ 02:10 AM EDT

Judge Kimball has now signed the Order Limiting Scope of IBM's Ninth Counterclaim [PDF]. It's taken about a month since he ruled on this issue in IBM's favor. And so, SCO's very complex effort to prop up a claim that they should be allowed to amend their complaint again to add a claim that IBM's AIX on Power infringed SCO's copyrights (ha ha, if they turn out to have any) and to extend the discovery process by adding another claim has failed and is now officially over.

You'll recall IBM's words in its Reply Memorandum in Further Support of Motion for Order Limiting Scope of Ninth Counterclaim:

In footnote 3 of its opposition papers, SCO effectively concedes that the only reason it opposes this motion is as a means of gaining leave to file its proposed new claim for copyright infringement. SCO states that it would not oppose a motion by IBM to "amend" the Ninth Counterclaim so long as SCO is free to amend its complaint. In fact, that is exactly why SCO fomented this dispute.. . . The purpose of this motion is to underscore IBM's intent as to the Ninth Counterclaim and to put an end to SCO's tactical efforts to misconstrue it.
Those tactical efforts failed. This document was stamped received by the court clerk on July 19, and signed by the judge and entered on August 1, which is a longer time gap than usual, so the court must still be backed up with the new electronic filing changeover. Or maybe it's just vacations. Even judges get time off for good behavior. Kidding. But it is vacation season.

Actually, SCO only partially failed. As you'll recall, SCO's attorneys argued that they needed all the unreleased versions of AIX and Dynix in order to support their new cause of action regarding their accusations about IBM using AIX on Power, among other things. They then lost their hard-fought motion to amend the complaint a third time to add that new claim, and they lost their attempt to broaden IBM's 9th Counterclaim. But Judge Wells had already ordered the massive discovery turned over. So what to do with all that code? They have mountains of code to comb through, and you know how much fun that is, and what, oh, what, can they do with it?

They still are sorting through the code to deal with IBM's 10th Counterclaim, and there's the IBM and Sequent contracts issues, the methods and concepts ball of wax. "One way in which SCO will prevail on its contract claims is by tracing the AIX or Dynix code that IBM contributed to Linux back to UNIX," SCO wrote in a recently redacted Reply Brief in Further Support of its Supplemental Memorandum Regarding Discovery. They're a determined bunch, and no doubt they'll be working on that, but I doubt it's at the top of their list now that Novell has given them something to *really* think about.

I'm not exactly proud of this feeling, because it lacks nobility, but I have to admit, there's something deeply satisfying about seeing a bully get pushed to the mat by someone bigger and badder than he is. I took the whole day off Tuesday, just enjoying that feeling, the first day off from Groklaw I've taken in over a year, I think. I've only taken two since May of 2003. And it felt wonderful. Thanks, Novell, for a perfectly lovely day.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
[Proposed]
ORDER LIMITING SCOPE OF IBM'S
NINTH COUNTERCLAIM

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

Based upon Defendant/Counterclaim Plaintiff International Business Machines Corporation's ("IBM") Motion for Entry of Order Limiting Scope of IBM's Ninth Counterclaim, and for good cause appearing,

IT IS HEREBY ORDERED that IBM's Ninth Counterclaim is limited to seeking a declaration that IBM has not infringed SCO's alleged copyrights based on alleged breaches of license agreements with AT&T and SCO's purported termination of those licenses.

DATED this 1st day of August, 2005.

BY THE COURT

___[signature of Dale A. Kimball]_

U.S. District Court Judge

Dale A. Kimball

2

CERTIFICATE OF SERVICE

I hereby certify that on the 19th day of July, 2005, a true and correct copy of the foregoing was sent by U.S. Mail,postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
Edward Normand
Sean Eskovitz
BOIES, SCHILLER & FLEXNER
[address]

___[signature]___

  


Judge Kimball Signs Order Limiting IBM's 9th Counterclaim | 199 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here Use clickable links
Authored by: Einhverfr on Wednesday, August 03 2005 @ 02:19 AM EDT
like <a href=http://www.example.com>this</a> (but select HTML mode).

[ Reply to This | # ]

Corrections here please
Authored by: rm6990 on Wednesday, August 03 2005 @ 02:20 AM EDT
Corrections Here Please

[ Reply to This | # ]

Does SCO really check the code?
Authored by: Anonymous on Wednesday, August 03 2005 @ 02:22 AM EDT
AFAIK they have to outsource it (pun intended :). That must show up somewhere.

[ Reply to This | # ]

OT Here
Authored by: rm6990 on Wednesday, August 03 2005 @ 02:31 AM EDT

OT Here please.

To start with, check out NIN.com.

Probably the first mainstream organization/media figure to push using Firefox or other standard compliant browsers for their website.

[ Reply to This | # ]

I went on vacation too...
Authored by: Anonymous on Wednesday, August 03 2005 @ 02:33 AM EDT
But I still kept tabs on Groklaw. Thanks for all your work, PJ.

[ Reply to This | # ]

It's not wrong to feel satisfied when you are vindicated.
Authored by: kawabago on Wednesday, August 03 2005 @ 02:45 AM EDT
So enjoy it!

---
TTFN

[ Reply to This | # ]

  • Schadenfreude - Authored by: Anonymous on Wednesday, August 03 2005 @ 09:44 AM EDT
    • No - Authored by: Inevitable on Wednesday, August 03 2005 @ 10:32 AM EDT
    • er, no - Authored by: Anonymous on Wednesday, August 03 2005 @ 11:44 AM EDT
    • Schadenfreude - Authored by: Anonymous on Wednesday, August 03 2005 @ 12:20 PM EDT
    • Schadenfreude - Authored by: Tyro on Wednesday, August 03 2005 @ 02:53 PM EDT
Sycophancy here
Authored by: Anonymous on Wednesday, August 03 2005 @ 02:48 AM EDT
All comments about how wonderful PJ is, here please.

[ Reply to This | # ]

Judge Kimball knocks rung from ladder
Authored by: Anonymous on Wednesday, August 03 2005 @ 03:16 AM EDT
Have SCOx been working on their ladder analogy lately?

I'd still be interested in a picture of what they have built to date and on how firm the foundation is that they are planning on using to support the ladder and against what they are planning on leaning it.

[ Reply to This | # ]

On Novell bankrupting SCO by forced formation of a trust...
Authored by: N. on Wednesday, August 03 2005 @ 07:34 AM EDT
I think I've thought of a reason why Novell might not get its trust, or possibly
get a smaller trust than it requests.

It would bankrupt SCO.

Yes, we know it's a good thing, we know SCO are in the wrong, but from Judge
Kimball's POV, SCO are innocent until proven guilty. Why should SCO be put out
of business in this way if they haven't had the final judgement against them
yet?

In my non-lawyer eyes, it wouldn't be fair to SCO to be punished before a
ruling.

---
N.
(Now almost completely Windows-free)

[ Reply to This | # ]

PJ, about your time off quip.
Authored by: oldgreybeard on Wednesday, August 03 2005 @ 10:05 AM EDT
I'm fairly sure that at times the good Judge feels that he is in the big house
doing time.

I, like a lot of folks, would have already delivered the get out of here
speech.

Judge Kimball needs to be nominated for at least a Nobel Prize and a Jefferson
Award.

[ Reply to This | # ]

Judge Kimball Signs Order Limiting IBM's 9th Counterclaim
Authored by: Anonymous on Wednesday, August 03 2005 @ 02:47 PM EDT
Which is why King Solomon has such a respected legacy today.

Solomon doled out justice where other kings would just have said "off with
their heads"

[ Reply to This | # ]

Congrats on the day off, PJ
Authored by: inode_buddha on Wednesday, August 03 2005 @ 10:36 PM EDT
Congrats on the day off, PJ, I'm convinced you needed and deserved it.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

Trust Law
Authored by: Anonymous on Wednesday, August 03 2005 @ 11:05 PM EDT
If there is a trust for the funds to be transfered to Novel. Im sure there are
clear cut laws concerning the "Trustee" dipping into the Trust. And
hopefully some SEVERE penalities for wrongful usage.

SCO and "Trust" is an oxymoron for shure!

Any comments on trusts from you lawyer types, expecially on punishments!

[ Reply to This | # ]

Made my day 2 :)
Authored by: SilverWave on Thursday, August 04 2005 @ 04:36 PM EDT
Made my day 2 :)

SCO=Toast

Ha Ha :P

---
"They [each] put in one hour of work,
but because they share the end results
they get nine hours... for free"

Firstmonday 98 interview with Linus Torvalds

[ Reply to This | # ]
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