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Hearing April 14 on IBM's Motion to Toss Most of SCO's "Allegedly Infringing Material" |
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Thursday, March 23 2006 @ 08:19 AM EST
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There is a hearing set on IBM's motion to toss out the bulk of SCO's list of allegedly misused material. It's set for April 14 at 3 PM. Here's the Pacer notation:
655 -
Filed & Entered: 03/22/2006
Notice of Hearing on Motion
Docket Text: NOTICE OF HEARING ON MOTION re: [619] Defendant's MOTION to Limit SCO's Claims Relating to Allegedly Misused Material: Motion Hearing set for 4/14/2006 at 03:00 PM in Room 220 before Magistrate Judge Brooke C. Wells. (jwd, ) So let's synchronize our watches. This is an important hearing to attend, if you can, because there may be portions of the transcript sealed, since the Reply Memorandum by SCO is sealed. Also, it should be fascinating to get at least a glimpse of what SCO has on that list.
In other Pacer activity, IBM and SCO have stipulated that IBM can have more time to file its Reply Memorandum in Further Support of Motion to Limit SCO's Claims Relating to Allegedly Misused Material. This is IBM's response to SCO's sealed opposition memo. The new deadline is April 4, 2006. SCO's sealed Memorandum in Opposition is number 643 on the Docket list. Also, Judge Brooke Wells has signed the proposed Order [PDF] submitted by the parties regarding the minor shift in the discovery schedule.
Here's the stipulation regarding IBM getting more time, thanks once again to Steve Martin: ***********************
SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Nathan E. Wheatley (9454)
[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,
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
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STIPULATION AND JOINT MOTION
RE BRIEFING
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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1
The parties, through their counsel of record, hereby stipulate and jointly move the Court
for an Order extending the deadline for IBM to file its Reply Memorandum in Further Support of
Motion to Limit SCO's Claims Relating to Allegedly Misused Material. IBM's reply
memorandum will be filed and served on or before April 4, 2006. The parties submit herewith a
proposed form of order confirming this deadline.
DATED this 21st day of March, 2006.
Snell & Wilmer L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott
By /s/ Todd M. Shaughnessy
Counsel for Defendant International
Business Machines Corporation
DATED this 21st day of March, 2006.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER
Edward Normand
By /s/ Edward Normand
Counsel for Plaintiff
(e-filed with permission from counsel)
2
CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of March, 2006, a true and correct copy of the
foregoing was and was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
/s/ Todd M. Shaughnessy
6
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Authored by: Wol on Thursday, March 23 2006 @ 08:54 AM EST |
and other smelling pistakes here
Cheers,
Wol[ Reply to This | # ]
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Authored by: Wol on Thursday, March 23 2006 @ 08:56 AM EST |
Whoopee - got them both
Cheers,
Wol[ Reply to This | # ]
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- A new net threat from Yahoo - Authored by: Anonymous on Thursday, March 23 2006 @ 09:05 AM EST
- Repost due to importance - UK readers - read for the sake of democracy - Authored by: Jimbob0i0 on Thursday, March 23 2006 @ 10:32 AM EST
- More Proof the US Patent System is Broken... - Authored by: Anonymous on Thursday, March 23 2006 @ 11:28 AM EST
- "Microsoft employees in Vista revolt" - Authored by: NetArch on Thursday, March 23 2006 @ 12:05 PM EST
- Laying a Turd... - Authored by: Anonymous on Thursday, March 23 2006 @ 12:36 PM EST
- Gloat Gloat Gloat!!! - Authored by: clark_kent on Thursday, March 23 2006 @ 01:11 PM EST
- "Microsoft employees in Vista revolt" - Authored by: PolR on Thursday, March 23 2006 @ 01:29 PM EST
- "Microsoft employees in Vista revolt" - Authored by: Anonymous on Thursday, March 23 2006 @ 01:31 PM EST
- Mythical Man-Month ? - Authored by: Anonymous on Thursday, March 23 2006 @ 02:16 PM EST
- Come the revolution - Authored by: Anonymous on Thursday, March 23 2006 @ 03:52 PM EST
- "Microsoft employees in Vista revolt" - Authored by: geoff lane on Thursday, March 23 2006 @ 04:00 PM EST
- 6 years without a new release of consumer OS - Authored by: Anonymous on Thursday, March 23 2006 @ 04:00 PM EST
- "Microsoft Office 2007 Delayed" - Authored by: Ed L. on Friday, March 24 2006 @ 03:24 AM EST
- Ewwww! What's that smell? - Authored by: tangomike on Friday, March 24 2006 @ 09:32 AM EST
- Off topics here - Authored by: PJ on Thursday, March 23 2006 @ 12:33 PM EST
- SCO lose another $4.5 million, an investor required fast - Authored by: Chris Lingard on Thursday, March 23 2006 @ 12:47 PM EST
- Time for quarterly Red Hat letter - Authored by: LMS on Thursday, March 23 2006 @ 12:47 PM EST
- OpenBSD news - Authored by: Anonymous on Thursday, March 23 2006 @ 02:09 PM EST
- Vista gamers need > 2GByte memory - Authored by: PeteS on Thursday, March 23 2006 @ 04:28 PM EST
- OT: Microsoft sets Apple straight on security - Authored by: Ted Powell on Thursday, March 23 2006 @ 04:57 PM EST
- How Proprietary Thinking Could Kill - Authored by: sproggit on Thursday, March 23 2006 @ 06:04 PM EST
- Interesting quote by US Attorney General - Authored by: SpaceLifeForm on Thursday, March 23 2006 @ 07:18 PM EST
- Watching the wale song... - Authored by: darkonc on Thursday, March 23 2006 @ 09:52 PM EST
- Karaoke Illegal? - Authored by: Anonymous on Thursday, March 23 2006 @ 10:52 PM EST
- Stallman interviewed by Forbes - Authored by: Anonymous on Friday, March 24 2006 @ 02:17 AM EST
- Ballmer Threatens Patent Litigation - Groklaw Newspicks - Authored by: Brian S. on Friday, March 24 2006 @ 05:15 AM EST
- After the SCO litigation finishes - Authored by: TiddlyPom on Friday, March 24 2006 @ 05:32 AM EST
- "Lawyers that don't use open documents risk liability" - Authored by: tiger99 on Friday, March 24 2006 @ 07:43 AM EST
- Off topics here - Authored by: Anonymous on Friday, March 24 2006 @ 10:23 PM EST
- Titanic and SCO - Authored by: Anonymous on Friday, March 24 2006 @ 10:36 PM EST
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Authored by: Anonymous on Thursday, March 23 2006 @ 09:00 AM EST |
tick tick tick [ Reply to This | # ]
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Authored by: shingebis on Thursday, March 23 2006 @ 09:20 AM EST |
I think this is the first time in this case that the possibility of sealing the
transcript of a court hearing has been raised, and it doesn't make an awful lot
of sense to me. How does it work? Presumably there's nothing to stop people
reporting on the whole thing (because there's no way to know exactly what will
be sealed until the transcript arrives in several weeks' time), so it just means
that certain (cough) journalists can make wild inaccurate claims that can't be
refuted.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 23 2006 @ 09:20 AM EST |
Reading through this, it would jump out at me that the reply brief versus the
date of the hearing itself are not aligned. I realize that this is the law we
are talking about so normal reality doesnt apply, but one would think the
real-life verbal hearing on the subject would make IBM's reply brief (due almost
two weeks later) irrelevent.
---
Clocks
"Ita erat quando hic adventi."[ Reply to This | # ]
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Authored by: seraph_jeffery on Thursday, March 23 2006 @ 09:23 AM EST |
I suspect that this means now that the SCO heirarchy has milked this for all
it's worth, and have become personally wealthy, they'll be ready to ditch soon.
How will IBM recoup their losses from all this harrassment? Is there anything
left in the SCO legal fund?
[ Reply to This | # ]
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- How will IBM recoup losses? - Authored by: LocoYokel on Thursday, March 23 2006 @ 10:17 AM EST
- How will IBM recoup losses? - Authored by: rsteinmetz70112 on Thursday, March 23 2006 @ 10:24 AM EST
- Ferengi style - Authored by: Anonymous on Thursday, March 23 2006 @ 01:05 PM EST
- Centauri style - Authored by: DannyB on Thursday, March 23 2006 @ 01:38 PM EST
- Centauri style - Authored by: Anonymous on Thursday, March 23 2006 @ 02:01 PM EST
- Centauri style - Authored by: Anonymous on Thursday, March 23 2006 @ 08:16 PM EST
- ...losses... Did you mean "expenses"? - Authored by: tangomike on Thursday, March 23 2006 @ 01:12 PM EST
- They have some options - Authored by: TomWiles on Thursday, March 23 2006 @ 02:00 PM EST
- Garnish "wages"... - Authored by: Marc Mengel on Thursday, March 23 2006 @ 02:43 PM EST
- IBM has already recoup their losses - Authored by: PolR on Thursday, March 23 2006 @ 06:45 PM EST
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Authored by: Jaywalk on Thursday, March 23 2006 @ 09:25 AM EST |
This is an important hearing to attend, if you can, because there
may be portions of the transcript sealed, since the Reply Memorandum by SCO is
sealed. I've been wondering if IBM could challenge SCO sealing
the Reply Memorandum. Supposedly it's just a list of line numbers and code, but
I believe SCO's already gone public with their claims before, and they were met
with general derision and contempt. If SCO is sealing the records just to keep
from being exposed to another round of bashing, that's not a valid reason to
seal the record, is it?And even if it is, aren't they supposed to file a
redacted version that we can make fun of? Work's been stressful lately
and I need the laughs. --- ===== Murphy's Law is recursive. ===== [ Reply to This | # ]
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Authored by: edal on Thursday, March 23 2006 @ 09:48 AM EST |
First step in the Nazgul playing with their food, they've booked the table
<g>. Get the popcorn in.
Ed Almos[ Reply to This | # ]
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Authored by: blacklight on Thursday, March 23 2006 @ 11:10 AM EST |
I could not understand why IBM did not ask for SCOG's "evidence" to be
tossed out long ago. Now I think I do: had IBM made that motion earlier, SCCOG
could have successfully opposed it by claiming that SCOG's discovery period is
not over and that IBM's motion is thus premature. Now that SCOG's discovery
period is over and that SCOG's "evidence" is clearly is the best it
could accumulate in that period, IBM's teardown process can begin unmolested by
SCOG's objections.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 23 2006 @ 11:18 AM EST |
Well knowing SCO's PR machine, assuming that IBM gets what it asked for, namely
2/3 of SCO's claims being thrown out immediately simply for being too vague and
unsupported, I already know how SCO will spin it:
"Court upholds 91 claims of mis-use of SCO technology by IBM"
Or somesuch.
Lol. Forgetting the fact that this motion and hearing don't address whether the
other 91 claims have any merit - simply that the 201 claims IBM is asking to
have dismissed are simply to0 vague and undocumented to even *be* considered by
the court.
Gotta love spin. . .[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 23 2006 @ 12:41 PM EST |
From from a year 2000 newsgroup post:
Unix and
Linux will fight each other for supremacy over the next 18
months but only
one can survive, according to Caldera Systems.
The statement follows
the Linux distributor's decision to acquire the
Santa Cruz Operation's
(SCO's) Unix business in August for an
estimated bargain basement price of
$130m. The agreement includes
rights to SCO's Unix SVR5 source code and
the UnixWare and OpenServer
operating systems (OSs).
The deal was
expected to close in October, but will now be completed
between 5-10
December.
Edgie Donakey, Caldera's vice president and chief of
staff, said that
the two companies were currently reselling each other's
products, but
that the aim over the next six months or so was to offer two
new OSs.
One will be based on the Linux kernel and will include two
so-called
personalities that run OpenServer and Linux applications, while
the
other will be based on the UnixWare kernel and run Linux and UnixWare
applications.
But Donakey claimed that only one of the kernels would
remain within
the next 18 months.
"It will not be a two kernel
situation into the future. As the Linux
kernel develops and the Unix kernel
is open sourced, the solution will
be whichever works the best. It will be
the survival of the fittest.
People are not doing a lot of development on
the Unix kernel these
days because people see Linux as exciting and the
future," he said.
He added that Drew Spencer, Caldera's chief
technology officer, and
the supplier's legal department were now looking at
the ramifications
of licensing the Unix kernel and UnixWare personality under
a GNU
General Public Licence - one of several ways to license open source
software.
This means that the source code would be made available
to the open
source community for free to allow them to tinker with it, but
that
any changes would have to be handed back so that others can benefit
from them.
As a result, the aim is to encourage kernel and
application developers
to work on the code and to "give them added insight
into the way the
OS works".
Maybe Caldera has given a lot of
'go-aheads'
----------------
I'm IMANAL - I'M Absolutely Not A
Lawyer - Just didn't login
[ Reply to This | # ]
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- Interesting - Authored by: so23 on Thursday, March 23 2006 @ 06:39 PM EST
- Interesting - Authored by: Anonymous on Friday, March 24 2006 @ 10:48 AM EST
- Interesting - Authored by: Anonymous on Friday, March 24 2006 @ 01:02 PM EST
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Authored by: rsteinmetz70112 on Thursday, March 23 2006 @ 01:11 PM EST |
After realizing that this motion is before Magistrate Judge Wells I began to
wonder whether she can rule on this matter. It would seem that this type of
motion is more substantive than procedural, which is where I thought the line
between the Magistrate and the Judge was drawn.
I am confused about why such a major motion which could eliminate much of SCOG's
case is being heard by Magistrate Wells and not Judge Kimball.
Perhaps someone can enlighten me.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 23 2006 @ 03:04 PM EST |
Portion of SCO list:
Little blinking light on computer indicating hard disk activity -- thats
ours...
"Blue screen of death" -- that's ours. Microsoft stole it, but that's
another case...
Alphabet -- that's ours.
Recipe for chicken fried steak -- ours...
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, March 23 2006 @ 10:46 PM EST |
I can hear the spin from Lindon and Redmond on this now:
"If there is no infringing code; how can some be thrown out?"
It's late.....[ Reply to This | # ]
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Authored by: Dave23 on Thursday, March 23 2006 @ 11:55 PM EST |
Re-reading IBM's Memorandum in Support (See link in PJ's main article above) I
noticed this part of the argument:Item Nos. 271 and 294 of the Final
Disclosures illustrate the problem. Item No. 271 claims that "AIX and Dynix/ptx
patented technologies, based on UNIX System V, were improperly released for the
benefit of, and use by, the Linux development community in developing Linux."
SCO does not identify a single version, file or line of Unix System V, AIX,
Dynix or Linux technology that IBM is alleged to have misused. Instead, SCO
merely attaches 34 patents. None of these 34 patents lists any versions, files
or lines of code. There is, therefore, no way of telling what, if any, Unix
System V, AIX, Dynix or Linux technology SCO contends was misused. Similarly,
SCO’s Item No. 294 alleges that IBM has engaged in "[e]xtensive use of ptx
programming experience (and a fortiori exposure to UNIX System V) in creating
numerous Linux kernel patches". In support of this claim, SCO attaches a
computer disk containing 33,000 single-spaced pages of proposed code
contributions. Nowhere does SCO identify with specificity a single version, file
or line of Unix System V, AIX, Dynix or Linux code. Here again, IBM is left to
guess as to SCO’s claim. This quotation does illuminate a couple of
SCOG's sealed claims, and confirms the idea that at least part of SCOG's claims
are of the "all your code — and 'methods and concepts' and UNIX
programming experience(!), and IBM's patented material(!!) — are
controlled by us" or "contagion" theory of the old AT&T/Novell/Santa
Cruz-IBM contract.
IBM, in its support of its motion, argues in a way that
presumes that the contract has a settled meaning — and, truthfully, the
court has used wording that is consistent with their interpretation. On the
other hand, SCOG/BSF continue to wander down another path, their argument being
that no explicit ruling has been made on the meaning of the contract with
respect to extent of control. It is easy to impute that this conflicting
interpretation of what the contract means involves about two-thirds of
SCOG/BSF's claims.
I am convinced that SCOG/BSF will not relinquish the
"contagion" theory until an explicit ruling is made on the interpretation of the
contract. Thus, I infer that their opposition argues, among other things, that
IBM's motion should be denied because (1) reference to the contract's meaning
will be required when determining whether the claims are adequately specific,
and to interpret the contract will require a dispositive ruling; (2) the
Magistrate Judge may not rule in favor of IBM's motion because the question at
hand is beyond her purview; (3) if Judge Wells does rule against SCOG/BSF on the
motion, SCOG/BSF will appeal immediately to Judge Kimball; (4) SCOG/BSF will
remind Judge Kimball that dispositive motions were to be deferred until the end
of Discovery; (5) even if Judge Kimball decides to make a ruling on the motion
after Discovery is over, SCOG/BSF will argue that there are enough disputed
facts relating to the interpretation of the contract that a jury will be
required to determine the truth of the conflicting claims; (6) if Judge Kimball
grants PSJ's based on contract interpretation, SCOG/BSF will request an
interlocutory appeal (if they can afford it).
IBM's reply will be
interesting reading, if it is not sealed or too heavily redacted. Until now,
SCOG/BSF and IBM have been "talking past" each other, and will continue to do so
until the Court puts the issue to rest. The implicit nod is with IBM
— we have seen the dicta from Judge Kimball when he defered IBM's
early PSJs. Will IBM rely on that dicta in its reply in a way that will
telegraph SCOG/BSF's opposition argument(s). We may get a mess of tea-leaves to
read in early April.
SCOG/BSF's approach is and remains: delay the
collapse of the SCOniverse "wave function" for as long as possible. Argue that
a decision on the meaning of the contract must be made; that Magistrate Judge
Wells is (respectfully) not competent to make that interpretation; that the
decision on the contract is not ripe for Judge Kimball to make it; that only a
jury can decide the proper interpretation of the contract.
Now, I am not a
lawyer, and IBM have very good ones. SCOG/BSF may have decided not to make a
stand here; but if they have, and their reply was of this type, then personally,
I think SCOG/BSF may have a chance to force a deferral in IBM's motion until
Discovery is completely over with, and motions for PSJ are fully briefed.
I believe this: SCOG/BSF shall give up their "contagion" theory in arguments
only when they get an adverse ruling from Judge Kimball. They cannot give it up
unless told directly and expressly that it is wrong, because its validation is
absolutely necessary if they might get a substantial, unmitigatible, payout.
(IBM has other defenses for the more specific of the SCOG claims, and, as anyone
who has been following Groklaw knows, the "contagion" theory of itself, however
galling, does not hurdle IBM's other general defenses.) I would not be
surprised if SCOG/BSF request an interlocutory appeal on this matter. It
practically is their case. Without their "contagion" theory, SCOG/BSF's
contract case is cooked.
IANAL
--- Gawker [ Reply to This | # ]
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Authored by: Anonymous on Friday, March 24 2006 @ 02:36 PM EST |
> I could understand blocking inbound ftp but can not
> understand blocking outbound email. The logic or lack
> there of of government I will never comprehend.
Your list of "expected/unexpected" behaviors suggests that you aren't
very familiar with the common Internet protocols and the reasons for locking
them down at firewalls and gateways. Please trust me when I tell you that
blocking outbound port 25 is one of the smartest things the library's IT group
could do.[ Reply to This | # ]
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