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| The Declaration of Mark James & 74 Exhibits |
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Sunday, July 23 2006 @ 03:45 PM EDT
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SCO filed a
Declaration of Mark James, Filed in Redacted Form [PDF] along with 74 exhibits, all attached to its Redacted Objections to Magistrate Judge Brooke Wells' Order. It's all designed to give Judge Dale Kimball the wherewithal to do a de novo review and decide to reinstate -- SCO hopes -- all the evidence the Magistrate Judge tossed overboard as a sanction for SCO's disobeying three court orders. James is one of the attorneys at Hatch, James & Dodge, and his contribution to the SCO effort in this filing is to list the exhibits with a description of each. Most of the exhibits are sealed, in my view so that the Linux community won't show the world with specificity how idiotic this litigation is. But we do get to see a few items that are new, mainly interrogatories. If you are patient, sooner or later you get to see most things in normal litigation. But it's hard for me to really focus with my usual intensity on this particular filing today, now that I believe that SCO put the software industry through three years of turmoil over essentially nothing, over an unreasonable new theory of contract that nobody, IBM or anyone else, had apparently ever thought of before in connection with IBM, or ever could have thought of in a million years, a theory that contradicts contracts IBM had in hand that by my reading said it could do what SCO is now suing IBM for doing. Here's the part that really set me off, from page 47 of SCO's Redacted Objections: SCO does not and need not assert that it "owned" the methods and concepts; the non-disclosure restrictions on IBM were independent of any question of ownership....SCO need not show that it "owned" the material disclosed, only that restrictions in the license agreements govern those methods and concepts which it has done. Do you realize what that means, what they are saying? It means to me that they are suing IBM because over decades an employee here and there discussed or wrote papers about software IBM wrote itself or owned, revealing what SCO claims are supposed to be secret methods and concepts (most of which I believe you'll find already revealed to the public, in Groklaw's Unix Books project), and they are in any case methods and concepts that SCO doesn't even own, by its own acknowledgment. They are suing over methods and concepts that they don't even own. And SCO's damages for this "violation" would be exactly what? In some cases, IBM wrote, owns and *patented* the software they are thus accused of "revealing". Can you beat that for running, jumping, leaping, stomping gall?
Ask yourself one simple question. Would IBM or any company in a rational state sign such a contract, if it thought that is what it meant? That it could never write about software ideas it developed itself and in some cases even has patents on, for the rest of the life of the company? Obviously not. Nobody -- least of all IBM -- needs anybody's code at that price. I don't see how you could even abide by the terms and still file for a patent, given that you have to reveal how your patented thingie works. In doing so, you have to reveal both your concepts and your methods. So, without any meeting of the minds over this bright new interpretation of a decades-old contract, SCO decides to sue the pants off IBM for "violating" SCO's reinterpretation of the contract to suit. And it calls press conferences to announce to the world that IBM has violated "its intellectual property" as I recall, except it isn't even "its" intellectual property in the end, after all? No wonder it wants to file under seal. That's just not how contracts are supposed to work. There is supposed to be a meeting of the minds, where both sides agree as to what the contract terms are, and then both live in harmony with the terms until the contract runs out. And by the way, if there is no meeting of the minds, there is no contract. And that is what, in the end, I believe will blow SCO out of the water, among many other things. You can't unilaterally redefine contract terms and then sue for "violations" of your unilateral interpretation. SCO tried that with DaimlerChrysler, remember, taking contracts talking about Unix and trying to stretch them to mean Linux? They got absolutely nowhere, as you can see by reading from page 16 on in the transcript of the hearing [PDF] where the judge decided that SCO's interpretation of the contracts was essentially wrong with regard to Linux and pretty much everything else and granted DaimlerChrysler's motion for summary judgment in all respects except whether it answered SCO's nonsense in a timely way. You know why? Because it's not fair to reinterpret a contract years into it, that's why. The law is supposed to be fair. When I read in the media how SCO sued DaimlerChrysler, I always think they should add, "and they got their heads soundly handed to them for that little caper."
I guess perhaps SCO thought IBM would just hand over some money. They've got plenty, right? Anyway, that's how it feels to me today, and on top of Friday's "destroyed evidence" media prank, I'm really disgusted today, so I'll have to let you pick over their droppings on your own. If you find anything super duper, please let us know. I'll probably be able to get back on my horsie tomorrow. Today, all I can think of is the unnecessary damage to IBM's reputation, to Linux, to the software industry and the economy, to Linus and all the good-hearted men and women who gave the world a wonderful operating system for free as in freedom and free as in speech, and all the money spent to litigate over this nothingness. SCO's legal team may be congratulating themselves over stretching this nothing out as long as they did, laughing in their beer perhaps at their cleverness, but what I am feeling today is all that everyone went through, including in my case the egregious smears on my good name because I dared to write that the emperor had no clothes. Take a look everybody. Do you see any clothes? Here's the complete list of all the exhibits, every last pointless one, all PDFs where they are not sealed:
Exhibit 1: "Item 146 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005." [Sealed]
Exhibit 2: "Declaration of Marc Rochkind," dated April 9, 2006.
Exhibit 3: Defendant IBM's First Set of Interrogatories and First Request for the Production of Documents, dated June 13, 2003.
Exhibit 4: Defendant IBM's Second Set of Interrogatories and Second Request for the Production of Documents, dated September 16, 2003.
Exhibit 5: Defendant/Counterclaim Plaintiff IBM's Sixth Set of Interrogatories and Sixth Request for the Production of Documents, dated January 11, 2005.
Exhibit 6: Email from David Marriott to Ted Normand, dated March 16, 2006.
Exhibit 7: Plaintiff's First Request for Production of Documents and First Set of Interrogatories , dated June 24, 2003 [note that there are three copies in the one exhibit for reasons I can't figure out, which ends up making it 40 pages.]
Exhibit 8: Plaintiff's Second Set of Interrogatories and Second Request for Production of Documents, dated December 4, 2003.
Exhibit 9: IBM's Responses and Objections to SCO's Second Set of Interrogatories and Second Request for Production of Documents, dated April 19, 2004 [Sealed].
Exhibit 10: SCO's Fifth Set of Interrogatories , dated November 11, 2005. [mentions methods and concepts]
Exhibit 11: IBM's Responses and Objections to SCO's Fifth Set of Interrogatories, dated December 16, 2005 [Sealed].
Exhibit 12: Plaintiff's Third Set of Interrogatories and Third Request for Production of Documents, dated December 3, 2003.
Exhibit 13: Item 3 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 14: Excerpts from the hearing transcript held on April 14, 2006 before Judge Brooke C. Wells.
Exhibit 15: Excerpts from the deposition of Timothy J. R. Wright held on November 15, 2005 [Sealed].
Exhibit 16: Item 279 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 17: Item 280 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 18: Tab 349 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 19: Tab 351 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 20: Tab 345 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 21: Tab 3461 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 22: Tab 347 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 23: Tab 348 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 24: Item 46 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 25: Tab 56 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 26: Excerpts from the deposition of Martin Bligh held on January 16, 20056 [Sealed].
Exhibit 27: Item 236 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 28: Deposition Exhibit 690 [Sealed].
Exhibit 29: Article that appeared in Computerworld on August 11, 2005.
Exhibit 30: Deposition Exhibit 435 [Sealed].
Exhibit 31: Item 252 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 32: Tab 276 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 33: Item 253 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 34: Item 254 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 35: Tab 277 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 36: Tab 278 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 37: Item 62 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 38: Item 63 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 39: Tab 71 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 40: Tab 72 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 41: Tab 260 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 42: Item 53 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 43: Tab 94 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 44: Tab 62 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 45: Tab 376 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 46: Item 55 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 47: Tab 64 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 48: Tab 377 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 49: Tab 156 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 50: Item 2 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 51: Tab 3 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 52: Tab 4 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 53: Tab 5 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 54: Tab 6 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 55: Tab 7 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 56: Tab 8 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 57: Item 83 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 58: Tab 92 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 59: Item 84 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 60: Tab 93 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 61: Tab 241 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 62: Tab 265 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 63: Item 242 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 64: Tab 266 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 65: Item 243 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 66: Tab 267 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 67: Item 245 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 68: Tab 269 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 69: Item 6 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 70: Item 109 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 71: Tab 16 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 72: Tab 119 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 73: Item 14 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
Exhibit 74: Tab 24 of SCO's Disclosure of Material Misused by IBM filed December 22, 2005 [Sealed].
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| Authored by: Aim Here on Sunday, July 23 2006 @ 03:52 PM EDT |
If there's mistakes, point 'em out here
[ Reply to This | # ]
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| Authored by: MathFox on Sunday, July 23 2006 @ 03:57 PM EDT |
For other Open Source and Legal issues. Post in HTML if you want to add
hyperlinks to your text.
---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.[ Reply to This | # ]
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- "pick over their droppings on your own." NO WAY you have a bigger stick. - Authored by: Anonymous on Sunday, July 23 2006 @ 05:02 PM EDT
- Will there ever be a time... - Authored by: Anonymous on Sunday, July 23 2006 @ 05:10 PM EDT
- Chrysler... - Authored by: Nonad on Sunday, July 23 2006 @ 05:22 PM EDT
- The well-known position - Authored by: overshoot on Sunday, July 23 2006 @ 05:57 PM EDT
- Chrysler... - Authored by: Brian S. on Sunday, July 23 2006 @ 09:46 PM EDT
- You ain't seen nothin yet - this is going to be REALLY interesting. - Authored by: Brian S. on Sunday, July 23 2006 @ 11:34 PM EDT
- "BMW nets Mercedes engine guru" - Authored by: Brian S. on Monday, July 24 2006 @ 12:58 AM EDT
- Bernie Ecclestone, the motor manufacturers, F1, the EU, TV rights and anti-trust, - Authored by: Anonymous on Monday, July 24 2006 @ 06:17 AM EDT
- Microsoft, SCOG, BMW and DaimlerChrysler 2002/2003/2004 - Authored by: Brian S. on Monday, July 24 2006 @ 08:40 AM EDT
- You ain't seen nothin yet - this is going to be REALLY interesting. - Authored by: Anonymous on Monday, July 24 2006 @ 07:35 PM EDT
- But what about Road Cars. - Authored by: Brian S. on Monday, July 24 2006 @ 12:14 AM EDT
- in memory of moogy - Authored by: grouch on Sunday, July 23 2006 @ 06:27 PM EDT
- Enderle now espousing M$osft's vapourware Zune music player? - Authored by: Anonymous on Sunday, July 23 2006 @ 07:52 PM EDT
- Venture Capital for Open Source Tech -- Suggestions? - Authored by: waterboy619 on Sunday, July 23 2006 @ 07:59 PM EDT
- SCO Lawsuit and Microsoft Bob - Authored by: brian-from-fl on Sunday, July 23 2006 @ 08:07 PM EDT
- "contradicts contracts" link and "spoliation of evidence" - Authored by: Anonymous on Sunday, July 23 2006 @ 08:44 PM EDT
- Sally Cruikshank - Authored by: jplatt39 on Sunday, July 23 2006 @ 09:36 PM EDT
- Off topic tread - who is pulling the strings? - Authored by: Anonymous on Sunday, July 23 2006 @ 11:12 PM EDT
- Accusations of destroying evidence - Authored by: PolR on Monday, July 24 2006 @ 09:06 AM EDT
- PDF to ODF - Authored by: Anonymous on Tuesday, August 01 2006 @ 07:01 PM EDT
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| Authored by: Anonymous on Sunday, July 23 2006 @ 04:07 PM EDT |
Look at the claims.
IBM does a lot of its work as consulting. Setting up processes for different
companies. Using information IBM employees have learned over time and through
the process of implementing different solutions for many different companies.
Certainly SCO's claims are crazy. But this gives IBM even more reason to get a
solid ruling on this ladder theory. IBM needs to be protected forever more from
such claims.
Luckily SCO is a nice soft target. A slimy hard to hit soft target, but a soft
target none the less.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 04:07 PM EDT |
SCO should really get to the point, and sue IBM for not giving them any free
money.
Isn't that the real point of this litigation?
[ Reply to This | # ]
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| Authored by: JR on Sunday, July 23 2006 @ 04:15 PM EDT |
"SCO hopes -- all the evidence the Magistrate Judge tossed overboard as a
sanction for SCO's disobeying three court orders"
My take is that the judge did not toss the "evidence" to punish SCO
for disobeying, instead the judge is "tossing" what does NOT qualify
as evidence. No punishment, just letting go of the junk.[ Reply to This | # ]
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| Authored by: PeteS on Sunday, July 23 2006 @ 04:23 PM EDT |
Although I think it's the first time SCOX has actually come out and plainly
stated as such in a court filing / memorandum.
I seem to recall IBM has already answered this, that basically,
it's a nonsensical result,
SCOX was not a party to the original contract,
they did not gain all the contract rights of AT&T, (there is a murky history
of what has been bought and sold),
that the behaviour of the parties to this point did not contemplate this,
and that IBM had specific isues with the AT&T licence on this subject and
negotiated the side letter for that reason (depositions of Otis Brown et. al)
and more.
I look forward to them being laughed out of court (at least for the complaint -
they still have the counterclaims to answer).
PeteS
---
Only the truly mediocre are always at their best[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 04:25 PM EDT |
Make that "Wrote, owned, patented, and open-sourced." And did not sell
the copyright or the patent.[ Reply to This | # ]
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| Authored by: Kaemaril on Sunday, July 23 2006 @ 04:28 PM EDT |
Can you beat that for running, jumping, leaping, stomping gall?
Can I beat it? No. As has become obvious over the last few
years, however, you can bet SCO can beat it. Their claims get more and
more outlandish and improbable as time goes by. [ Reply to This | # ]
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| Authored by: Nick_UK on Sunday, July 23 2006 @ 04:31 PM EDT |
So, if SCO admit they don't even *need* to own methods and
concepts stuff, one whose behalf are they suing? Can I
sue MS for using somebodies else's IP and I can claim the
damages?
What a joke this really has become.
Nick[ Reply to This | # ]
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| Authored by: Glenn on Sunday, July 23 2006 @ 04:34 PM EDT |
"SCO does not and need not assert that it "owned" the methods and
concepts; the non-disclosure restrictions on IBM were independent of any
question of ownership....SCO need not show that it "owned" the
material disclosed, only that restrictions in the license agreements govern
those methods and concepts which it has done."
So, after all of the SCOG's huffing and puffing, this what it all boils down
to. Nothing of the SCOG's intellectual property, if indeed it has any. No
copyright infringement. Nothing but an absurd interpretation of a contract which
the SCOG was not a party to and may not even be a legal successor in interest
to.
This is really disgusting in any ethical or moral sense.
Glenn[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 04:36 PM EDT |
They only in this filing are putting forth this theory. It seems late and also
in violation of the court orders. I thought the Court Orders said to clarify not
only the evidence, but also the claims.
Long time reader but first post
IANAL
[ Reply to This | # ]
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| Authored by: Steve Martin on Sunday, July 23 2006 @ 04:42 PM EDT |
I wonder why TSG included Item 2 (Exhibit 50) in this filing. That one was not
even in the list of items contested by IBM, much less in the list tossed by
Judge Wells.
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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| Authored by: argee on Sunday, July 23 2006 @ 04:44 PM EDT |
This is all fine and good, but 99% of this material is
addressing the merits of some of the 274 items.
That is not the issue before the court.
The court, this time, is merely considering if the
material, already on fail, met the specifity requirements.
If it did not meet the specificitation (sic), then the item
and all its supporting documents go out the window.
If it is ruled that it did, then this material here is still
probably irrelevant anyway because it is arguing a point not
before the court.
I expect to see Kimball view this mountain of paper as just
so much more tissue.
---
--
argee[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 04:47 PM EDT |
I just realized that SCO legal arguments sounds just like Zippy the Pinhead
quotes.
Consider these quotes from both Zippy and SCO:
You can't HURT ME, I've entered the TWILIGHT ZONE.
You have revealed METHODS AND CONCEPTS which WE DO NOT OWN, and have therefore
caused us IRREPARABLE HARM!
I am PROTECTED by the power of STAIN-RESISTANT SCOTCHGUARD.
We can't FIND THE EVIDENCE and this proves you have DESTROYED THE EVIDENCE!
I can silence JOAN RIVERS with a single slice of KRAFT CHEESE.
AHA! You have ILLEGALLY STOLEN the PUBLIC ELF SPECIFICATION!
My BOXER SHORTS just WENT ON A RAMPAGE through a LONG ISLAND BOWLLING ALLEY!
We need ALL 50 TERABYTES of UNIX SOURCE CODE so we can MAKE A LEGAL ARGUMENT
that we don't need to SPECIFY WHICH SOURCE LINES.
GLAZED DONUTS are the BUILDING BLOCKS of the UNIVERSE.
I can't TELL YOU WHAT YOU DID because then you would be able to DEFEND
YOURSELF.
[ Reply to This | # ]
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| Authored by: the_flatlander on Sunday, July 23 2006 @ 04:51 PM EDT |
74 Exhibits. Wow. *That's* a *really* strong case. Seventy Four. Obviously
Caldera is going to win if they can come up with 74 exhibits. I mean, how could
IBM possibley refute 74 exhibits? </sarcasm>
IANAL, but in obsessively following this case for [is it] going on three years
now, I learned about "estoppel." I am thinking that the whole being a
Linux distributor thing is going to trump any strange new interpretation of the
contract Caldera wants to try out. Further, I'm thinking that if none of
Cladera's predessessors in interest objected to IBM's and Sequent's patent
applications, or IBM's and Sequent's copyright registrations, (assuming they
made any), then the SCOundrels will have no chance at all to claim in court that
revealing what one wag has called the "shiny object" IP on a linux
developers' mailing list is prohibited, but revealing it patent applications is
not.
If there were any justice in this country this whole sordid fiasco would turn
into a criminal matter shortly.</wishful thinking>
The Flatlander
Are we still on an August/September schedule for Motions for Summary Judgement?
September and October are going to be *really* tough months for Caldera, I
should think.[ Reply to This | # ]
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| Authored by: bbaston on Sunday, July 23 2006 @ 04:56 PM EDT |
| Wonder why tSCOg present this nice interview on IBM's realistic view of Unix and
Linux?
Could it be that IBM's kernel interest "since 1998 or 1999" makes the
SCOundrel's feel they have something to complain about? If that's it, what's the
big deal?
If it's something else, what? ---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold [ Reply to This | # ]
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- Exhibit 29 - Authored by: ewe2 on Sunday, July 23 2006 @ 05:54 PM EDT
- Exhibit 29 - Authored by: Anonymous on Sunday, July 23 2006 @ 08:18 PM EDT
- M$ did not acquire XEN - Authored by: Anonymous on Tuesday, July 25 2006 @ 08:18 AM EDT
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| Authored by: Anonymous on Sunday, July 23 2006 @ 04:56 PM EDT |
··· --- ··· ··· -·-· --- -·-· --·- -·· ··· -·-· ---
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 05:05 PM EDT |
IANAL This seems to been pitifully and patheticlly desperate of SCO. It looks
like their case is going downhill fast and picking up speed. I feel the end
approaching.
Could this be considered willful misinterpretation of a contract? I don't see
how SCO can argue that this was the intent of the contract. Could this be
grounds for considering this is frivolus? Could tghis be the desprately sought
dispute of facts that is need for a trial?
Is the sort of early case law, circa 1790's interpreting the "meeting of
the minds"?[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 05:07 PM EDT |
So although those Methods & Concepts do not belong to SCO, IBM should still
have asked SCO before discussing them with Linux developers. It's outrageous.
But why getting mad if can get even?
Evidently, they cannot seal M&C owned
by others. So let's start scratching up some money here at Groklaw and have a
lawyer request the documents be unseleaded.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 05:14 PM EDT |
SCO are suing IBM...
for distibuting methods and concepts... that SCO don't own... and IBM do own,
while at the same time distributing under the GPL... those self same methods and
concepts in their version of Linux.
I think I may need a lie down in a dark room... and possibly a small whisky...
or even a large one. (Ha ha he he hysterical laughter etc)[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 05:25 PM EDT |
SCO ist fighting suspiciously hard for their tossed out, unspecific allegations
- maybe this was the better part of their complaints? So far everything that
was specific didn't survive a day in the light. [ Reply to This | # ]
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| Authored by: lordshipmayhem on Sunday, July 23 2006 @ 05:36 PM EDT |
So they're suing over misuse of code they didn't own, if I'm comprehending this
correctly.
Well, I'm going to sue them, too. They've misused intellectual property I don't
own for far too long now.
I'm suing over use of "the wheel". I'm given to understand each of
them has at least one car, each car having at least four wheels on it and a
spare.
I know I don't own the rights to the concept of "the wheel", but if
they can sue IBM because IBM used IBM's code as IBM saw fit, I can sue SCOX's
management for using SCOX's management's own cars as SCOX's management saw fit.[ Reply to This | # ]
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| Authored by: overshoot on Sunday, July 23 2006 @ 05:55 PM EDT |
| PJ, you missed the part about patents. Keep in mind that filing for the patents
was itself (according to SCOX) a violation of their contract.
A patent
application is, after all, a public disclosure. [ Reply to This | # ]
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- Yah but - Authored by: Anonymous on Sunday, July 23 2006 @ 10:02 PM EDT
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| Authored by: blacklight on Sunday, July 23 2006 @ 06:08 PM EDT |
"SCO does not and need not assert that it "owned" the methods and
concepts; the non-disclosure restrictions on IBM were independent of any
question of ownership....SCO need not show that it "owned" the
material disclosed, only that restrictions in the license agreements govern
those methods and concepts which it has done" Mark James, attorney for
SCOG
Interesting. So, those who sign a UNIX license contract with AT&T under
AT&T's interpretation of that contract now have to comply with SCOG's
unilateral, retroactive and self-serving reinterpretation of that contract? And
it is a reinterpretation because the declarations of each member of the AT&T
team that is in charge of administering the UNIX licenses directly,
unambiguously and totally contradict SCOG's reinterpretation - never mind the
terms of the UNIX licenses contract itself and the subsequent clarifications of
these terms in its official publication, which AT&T uses to communicate with
its UNIX licensees.
SCOG's theory that any UNIX licensee agrees to PAY money to do free work for
hire for SCOG and to give away to SCOG "control rights" that are
tantamount to ownership rights for any technology said licensee develops on its
own - that theory amounts to a bare faced, shameless intellectual property
hijack.
These SCOG guys were never out to defend their intellectual property, they were
out to steal someone else's using their dubious and publicly discredited
reinterpretation of the terms of AT&T's UNIX licenses contract. SCOG's
objective was to launch a PR campaign built around the trash talk of SCOG's top
management team, while miring IBM in litigation. The PR campaign was built on
FUD, innuendo, character assassination and outright lies.
Had this PR campaign been successful in intimidating corporate end users, SCOG
would have monetized and legitimized its re-interpretation of the UNIX licenses
contract and the outcome of the IBM litigation would have been irrelevant.
Unfortunately for SCOG, PJ's groklaw and the community that PJ built around
groklaw stepped into the breach. And SCOG's PR campaign came to an inglorious
and brutal end, and taking down with it SCOG's "licensing" aka
extortion program.
---
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 | # ]
|
| |
| Authored by: Anonymous on Sunday, July 23 2006 @ 06:12 PM EDT |
I didn't think so. To enforce a contract, you actually have to own the
contract. We know that the Santa Cruz contract with Novell excluded certain
assets. Therefore, Santa Cruz did not buy a business unit. It bought assets.
Novell is the successor of interest to AT&T's contract with IBM. I don't
know how SCO gets around the wording in the contract with Novell that says
Novell can tell them not to sue IBM. There is zero evidence that shows that the
original AT&T contract flowed through to SCO.
SCO and their lawyers are desperate. They need something that can't be called
frivolous or they will get smacked upside the head real hard.
[ Reply to This | # ]
|
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| Authored by: danb35 on Sunday, July 23 2006 @ 06:17 PM EDT |
SCO does not and need not assert that it "owned" the methods and
concepts; the non-disclosure restrictions on IBM were independent of any
question of ownership....SCO need not show that it "owned" the material
disclosed, only that restrictions in the license agreements govern those methods
and concepts which it has done.
Actually, as far as it goes,
there's nothing wrong with this portion of their argument. They don't need to
show that they owned the material in question to be able to show violation of an
NDA--they just need to show that they had the right to control the
material.
Consider an example: You're an overseas manufacturer of a unique
widget, and you've developed a strong brand in Europe. I sign a contract with
you for exclusive US distribution rights. Under the terms of that contract, you
won't sell to anybody else in, or for ultimate sale in, the United States. In
this situation, I own none of the IP, neither the trademark on the brand nor the
relevant copyrights or patents (if any); you own all that. I can, however, most
certainly sue you to prevent and/or seek damages for any sale to another
person/distributor in the USA. Even though you own all the IP, I have (under
the contract) the right to (at least partially) control what you do with it.
This is pretty much what SCO is claiming, and so far as it goes, it's not
particularly unusual.
Now, SCO has a number of serious problems with this
portion of their case, chief among which is the fact that the contracts simply
don't say what they're claiming. Once this case reaches the PSJ stage, I
believe that will be established, and this entire claim will go away. But if
the contracts did say what they claim, the rest of the argument would not be
outlandish.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Sunday, July 23 2006 @ 06:27 PM EDT |
OK, so we know for sure that his has been one hell of a nonsensical case, with
active sponsorship from some because of the FUD value.
I'm just wondering if, along the way, any dangerous precedents are being set for
other idiots to repeat this performance. You must admit it's been rather hugely
effective to keep quite a few less capable CIOs off Linux, and it's made the
participating lawyers a rather tidy sum despite having no case whatsoever.
What dangers way there lurk past this case? I don't see that much chance of the
miscreants getting what they fully deserve, so I fear a repeat of this will not
be impossible.
Am I unduly pessimistic here?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, July 23 2006 @ 06:28 PM EDT |
I have totally lost the plot as to what TSCOG are actually claiming that this
case is about and what IBM are supposed to have done wrong. I am going to have
to sit down, later, and quitly read through this again. I kept up with the
changes for a while and, once we got to the hundreds of items, I thought it was
about the use of their methods and concepts. Now it seems to be something else.
I'm going for a lie down.
Tufty
[ Reply to This | # ]
|
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| Authored by: sk43 on Sunday, July 23 2006 @ 06:40 PM EDT |
In its Objection to Wells order [Section IV at C], SCO argues that the
definition of "to identify ... methods" included in its
1st set of document requests
and interrogatories did not come into play in the
interrogatories:
Notably, in SCO's First Request for
Production of Documents and First Set of Interrogatories (Exh. 7) (where the
definition of "identify" at issue appears), all of SCO's "identify"
interrogatories (Nos. 1, 3, 4 and 5) are directed at "persons." Naturally,
"identify," when used in the context of "persons," was defined differently by
SCO. None of the interrogatories in this initial request requires IBM to
identify methods by line of code.
What SCO fails to mention
is that nearly half of the document requests DO ask about methods -
e.g.,
2. "All versions or iterations of AIX source code,
modifications, METHODS
and/or derivative works from May 1999 to present,
including but not
limited to version 4.3 and above."
SCO is
curiously silent about these 23 requests or whether they were satisfied with the
materials IBM provided regarding METHODS.[ Reply to This | # ]
|
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| Authored by: jbb on Sunday, July 23 2006 @ 06:54 PM EDT |
| With their statement: "SCO does not and need not assert
that it "owned" the
methods and concepts; ..." they are
essentially claiming that there is no
need even for their
fanciful "ladder theory" where (according to them) M &
C
migrated from SysV to AIX/Dynix and finally to Linux.
While theoretically
it seems it would be possible to
construct a contract that would protect
"intellectual
property" one does not own, in the current case it raises
the
following practical question: If SCO's extremely
creative interpretation is
correct then how can anyone
distinguish which information IBM is supposed to
have kept
secret?
Unless the contract barred IBM from saying even a single
word (which I hope even SCO would agree is absurd) then
there must be some
information it is okay for IBM to
disclose (such as today's date) and other
information they
are not allowed to disclose. But how is IBM supposed to
know
whether they are allowed to disclose a particular
piece of information?
Likewise, how is the court supposed to decide what
information was
supposed to have been kept secret? The
rule that the court, IBM and everyone
else in the known
universe was using was that SysV code and code directly
derived from it (not just in close proximity) was to be
kept secret. This was
why Judge Wells granted SCO their
request for every version of AIX and Dynix
under the sun.
SCO said they needed it to link SysV code to code found in
Linux.
Maybe I'm committing the hacker error of assuming the law
is
consistent and logical but I can't understand how SCO
could even pretend
their new, even more outlandish
and fanciful interpretation is correct since
there would be
no way for anyone to know what information needed to be
kept
secret.
Perhaps this is yet another ploy to get everyone to forget
that
their previous "ladder theory" claim was also
fanciful and ridiculous since it
seems to make a whole lot
more sense than this new interpretation. I wouldn't
be
surprised if they assume that by tossing out this new
interpretation, the
court is implicitly agreeing with the
ladder theory.
---
Anyone who
has the power to make you believe absurdities has the power to make you commit
injustices. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, July 23 2006 @ 07:05 PM EDT |
Hello SEC. Hello Federal Justice Department... SCO now admits that they don't
own the IP they proclaimed to the world! Please have a nice cordial talk with
Darl McBride before he skips the country.[ Reply to This | # ]
|
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| Authored by: fredex on Sunday, July 23 2006 @ 07:08 PM EDT |
now that I believe that SCO put the software industry through three
years of turmoil over essentially nothing, over an unreasonable new theory of
contract that nobody, IBM or anyone else, had apparently ever thought of before
in connection with IBM, or ever could have thought of in a million years, a
theory that contradicts contracts IBM had in hand that by my reading said it
could do what SCO is now suing IBM for doing.
PJ, I thought
most everyone here already was pretty certain that SCO was pulling a frivolous
lawsuit (and had in mind this "novel" interpretation of the contract terms).
I've been sure that you believed it too, you seem to have made it plain enough.
Your current disorientation (dizziness?) must simply be due to the shock of
SCO's having actually admitted it in a court filing! (Perhaps you need to go lie
down for a while. :-) )
I know that I never expected them to
actually say it prior to the (hypothetical) trial, and maybe not even then if
they could avoid it.[ Reply to This | # ]
|
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| Authored by: gvc on Sunday, July 23 2006 @ 07:28 PM EDT |
There's nothing new about SCO's claim to be able to control anything that was
ever "in AIX" or "in Dynix."
They also claim that IBM was contractually obliged to exclude AIX and Dynix
developers from Linux development.
Both theories are preposterous and I won't repeat the argumentum ad absurdium
reasons, not to mention direct evidence, why.
What I'm interested in is on what basis they claim that marketing something
under the brand name AIX or Dynix makes the thing marketed under that name a
derivative work of Unix.
If IBM were to market monogramed shirts with an AIX emblem, would the patterns
for those shirts be controlled by SCO under their theory?
If IBM were to market some servers as "AIX servers" would the hardware
be controlled by SCO?
If IBM were to sell a re-badged version of BSD or even Windows as AIX (perhaps
AIX II) would that software be controlled by SCO?
My point is that the terms AIX and Dynix are ill-defined enough that SCO cannot
simply state that they are (in their entirety) derivative works of Unix. SCO
seem to that the name alone is sufficient to establish their claim; that there
is no need at all to establish any sort of relationship (line of descent or
otherwise) between Unix and the software they purport to control.[ Reply to This | # ]
|
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| Authored by: Anonymous on Sunday, July 23 2006 @ 08:21 PM EDT |
What this whole worthless suit is about is TSCOG with its financial backers
attempting to derail or destroy the *process* of how free and open source
software (FOSS) is developed.
Should this ludicrous claim that TSCOG is making (suing over IP and M&C it
does not even own) stand, then proprietary software makers would be able to sue,
and probably win, each and every FOSS develper for utilizing IP and M&C that
some plaintiff with deep pockets does *not* own. As such it is quite possible
that FOSS would die.
Which is exactly what proprietary software makers want.
krp[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 08:28 PM EDT |
If SCO owned nothing, what did IBM get out of the contract? If they got nothing
(i.e. everything of value to IBM in the contract depended on SCO's ownership),
there was no 'consideration' for IBM's promise, and thus no contract.
IANAL IAAHB
[ Reply to This | # ]
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| Authored by: The Mad Hatter r on Sunday, July 23 2006 @ 08:51 PM EDT |
Thought I'd try to reply in the style seen in so many court documents:
1 - Denies the averments of paragraph 1 as relating to IBM, and states it is
without information insufficient to comment on the mental competency of Mark F.
James.
Yeah, that looks about right.
---
Wayne
http://urbanterrorist.blogspot.com/
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 23 2006 @ 09:43 PM EDT |
"And that is what, in the end, I believe will blow SCO out of the water,
among many other things."
Among other things, Novell has also waived any claim SCO has against IBM. SCO
has no case, period. Every way they turn they run into daggers.[ Reply to This | # ]
|
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| Authored by: Anonymous on Sunday, July 23 2006 @ 09:55 PM EDT |
You know in a weird way I'm almost sorry SCO has unleashed this latest twist,
"we don't have to own it to sue you for releasing it". I've never
thought their case or claims had a leg to stand on, but this is right out of the
twilight zone. How can they put this in writing? I mean really, this isn't
even remotely reasonable. It's nuts. How can you lay claim to damages due to
infringement of intellectual property you don't own? I've always been certain
they wouldn't prevail, there are so many holes in their theory. But to have it
come down to this! It is just too bizarre. I wanted clean victory but now,
this is like beating up on <insert your own politically incorrect thought
here>. I'm truly disgusted, with SCO and with their lawyers. [ Reply to This | # ]
|
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| Authored by: Anonymous on Sunday, July 23 2006 @ 10:14 PM EDT |
We finally have an admission by SCO that there is something that they don't own.
Are we in a position to start enumerating material over which SCO will not
assert ownership? [ Reply to This | # ]
|
- SCO admitting? - Authored by: Anonymous on Monday, July 24 2006 @ 10:23 PM EDT
| |
| Authored by: blacklight on Sunday, July 23 2006 @ 10:56 PM EDT |
"SCO need not show that it "owned" the material disclosed, only
that restrictions in the license agreements govern those methods and concepts
which it has done." Mark James, attorney for SCOG
Well, SCOG hasn't shown anything at all because SCOG has failed to link the
M&C's to the source code that embodies these M&C's - And this failure
has been conscious, deliberate and systematic enough to qualify as wilful. If
SCOG does not have employees who can read source code, then SCOG should not have
sued.
In addition, SCOG has NOT shown that these M&C's are NOT public domain,
incorporated in BSD code, disclosed by third parties, disclosed by AT&T and
its successors, disclosed by Caldera, etc. Neither has SCOG shown that IBM does
not have the right to disclose IBM's own M&C's.
---
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: TheBlueSkyRanger on Sunday, July 23 2006 @ 11:06 PM EDT |
Hey, everybody!
So, if SCO doesn't have to prove anything in order to sue, what difference does
the tossed items make?
This would be funny if it weren't so rotten.
Dobre utka,
The Blue Sky Ranger[ Reply to This | # ]
|
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| Authored by: Anonymous on Sunday, July 23 2006 @ 11:16 PM EDT |
I bet if you wrote an article headlined "SCO admits it doesn't own the IP
it is suing IBM over" that the mainstream press would pick it up -- I think
they all follow Groklaw now as their main lead on this case.
If I were a mainstream reporter I think I could sell my editor on a story that
goes (as one AP put it) "SCO are suing IBM... for distibuting methods and
concepts... that SCO don't own... and IBM do own... while at the same time
distributing... those self same methods and concepts... in their version of
Linux."
Further, the main point is that SCOG attempted to, and in several cases did,
extort real money from real victims, for using IP that SCOG didn't own, that IBM
did own, that said victims got from IBM. Yes, I know that isn't an accurate
description of what really happened, but it is as accurate as it is possible to
be within the length, language, and intellectual constraints of a mainstream
tech press article.
-Wang-Lo.
[ Reply to This | # ]
|
| |
| Authored by: stats_for_all on Sunday, July 23 2006 @ 11:44 PM EDT |
| Many of the items resubmitted in the Exhibit list have known information
concerning the nature, and sometimes exact citation from which the claim
derived.
Below is an extract of Nob's Allegation table for the items in the
declaration.
I've preserved the mixed order of presentation. The rather arcane
D, A, V, F,
X coding refers to the competing SCO and IBM tables citing Dynix,
Aix as a
source, and whether a Version, and File were ever cited. This is
restated to
show some examples were presented with various levels of
detail.
Item 3-dismissed
--NUMA/ptx locking routines contributed to
Linux.
The December Submission states (at 5) that the "code in the 4 associated
source code files appeared in a patch for the 2.4.6 kernel" and provides an
internet address for the patch. [SCO 724 p.35]
Item 279 & 280--
dismissed
Methods IBM developer Rick Lindsley contributed to improving
Linux in the
technology area of locking after he had been exposed to Dynix/ptx
locking
techniques. [...] Supported by deposition testimony admissions from
Lindsley
himself [...] source code patches contributed by IBM to Linux that
consist of
hundreds of lines of source code identified by file, version and
line. [SCO 724
p.43]
Item 46 & 236 -- dismissed
Item No. 46 is a
February 26, 2003 email exchange between IBM developers
Martin Bligh, James
Cleverdon and a public Linux mailing list (see LKML post
by James Cleverdon LKML
or [i_s_g on
alt.os.linux.caldera] Commentary ) in which Bligh and Cleverdon
describe a "bug fix"
Bligh
made to Linux and how it was based on the method from Dynix/ptx.
SCO actually
cited the files and lines where this code occurs in Linux. [...]
Moreover,
these same lines of Linux source were included in the patch Bligh
disclosed to
Linux, which SCO included as December Submission Item 236.
[SCO 724 pp.43-44]
Contractual violations [Order 718 p.37].
item 252, 253, 254 -- dismissed
Contractual violations [Order 718 p.37] In 39 of the Items (Items 232 to
270)
SCO accuses IBM of making improper reference to Dynix source code as a
basis for writing additional code, while providing essentially no further
information. Each of these 39 items has an "Improper Disclosure" claim of the
form: "Use of ptx [i.e., Dynix] programming experience (and a fortiori
exposure to related aspects of Unix System V) in programming [or
'implementing'] _________," where the blank contains things such as "MP
preemption and synchronization code", "i686 large-memory SMP systems"
(see
LKML post by Gerrit Huizenga [
]LKML link),
"code for SCSI Mid-layer Multi-Path IO" (see LKML post by
Patrick Mansfield
[LKML link
]), and so
forth [IBM 672 p.10
decloaked]. Supported by the Richard Moore
presentation [Order 718 p.35,
see footnote 2 below], a link to a Linux Kernel
archive and a brief list of Linux
files [Order 718 p.37]. There is not
deposition testimony supporting these
alleged misappropriated items. [Order 718
p.38]
Item 62 & 63 --dismissed-- D, A, F, X -- no further information
Item 53 -- dismissed
Method used in Dynix to handle semaphores
(which are used in "locking" to
restrict access to shared resources in a
multiprocessing environment)
[SCO 724 p42]. This is a method and concept which
deals with improving
locking [...] an IBM employee, Mr. Wright [...] It refers
to the e-mails and
quotes them, where those were actually made to a Daniel
Phillips, who was a
Linux developer, and it makes specific references that they
are getting this
from Dynix/ptx. You have references that this method, this
particular
method, quote, "is not currently used in Linux." You have another
reference at
the bottom of that page saying the classic quoting style in
Dynix/ptx is then
and goes on and provides source code in the context of the
e-mail saying
that this is the right way to go about it. [Hearing 662 p.53]
(See LKML post by
Tim Wright [
LKML link ])
Item 55 --dismissed -- D, S, A (L) F X not identified as
misuse
item 2 -- Ongoing
--Read-Copy-Update code [SCO 724 p.8].
Line-for-
line copied code from derived works of System V created by IBM (or
otherwise
protected under the contracts) and contributed to Linux in violations
of the
IBM and Sequent Software Agreements [SCO 724 Appx A pp.2-3]. IBM's
motion included one Item inadvertently (No. 2) [IBM 657 p.2 fn1] They said
something specific about item number 2, which was RCU, and when we
responded
in our opposition brief, they dropped it. [Hearing 662 p.53]
Item 83, 84
dismissed
83 D A V, F X
84 D A F X
242 - dismisssed-
contractual- D, S, A V,F,X
243 - dismisssed- contractual- D, S, A
V,F,X
245 - dismisssed- contractual- D, S, A V,F,X
Item 6
-dismissed --D, S, A F,F,X --patch
Item 109 -dismissed --D, S, A
F,X
Item 14 -dismissed --D, A , F, X
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, July 24 2006 @ 12:46 AM EDT |
This is yet another example of Lawsuits Gone Wild. Nothing important. Just
another delaying tactic on the part of The SCO Group to spill their bile of FUD.
No one with half a brain buys it, and the court will surely see it as nothing
but "Sound and Fury" siginfing nothing.
The only thing it does do is allow Forbes, which I now see as a rag of little
worth, to print yet more on their precious child of Ultimate Tragedy, and How
They Have Been Wronged by The World.
I don't see why Fobs.. er, Forbes!, thinks that SCO has a leg, but it's obvious
that for what ever reason Forbes has abandoned any legitimate impartiallity and
has sided firmly with The SCO group.
For myself, I'll read all Forbes has to say about a company, and maintain a
cynicisim about anyone they support. Obviously Forbes has an axe to grind, and
they are unwilling to be honest about it.
For me, it isn't as important to know WHY a rag like Forbes lies, only that they
do.[ Reply to This | # ]
|
| |
| Authored by: Mark Levitt on Monday, July 24 2006 @ 01:29 AM EDT |
I think this is more significant that people realize. In the various hearings
before Judge Wells and Judge Kimbal over the discovery arguments, SCO has
presented their "ladder theory", however, if I recall correctly,
they've never actually directly come out and stated clearly their legal theory
about owning items that IBM wrote.
We knew that's what they were claiming because:
a) They were claiming rights over technologies like JFS, and
b) We know JFS was something IBM wrote from scratch.
Therefore, we could infer that SCO thinks it had some right to control the code
IBM wrote. Usually, we call this the "viral" theory.
Now, SCO has exposed some of this thinking to IBM and the courts by the nature
of their deposition questions, but from my recollection, they've never directly
brought this issue before the court. Certainly, they've never stated it in such
plain language ("we don't have to show we own it")
I think they wanted to be ambigous because they wanted to force IBM to waste
time and money finding "every revision of AIX, etc..." To do that,
they needed to act like it was a straight copyright case. If they'd told the
judge they were actually suing IBM over code IBM wrote, then Kimball might have
simple ruled against them at the first summary judgement hearing.
So, finally, SCO has brought their theory of control directly into the scruitiny
of the court and made it an issue that the court will have to consider.
--
Mark[ Reply to This | # ]
|
| |
| Authored by: 124747 on Monday, July 24 2006 @ 02:11 AM EDT |
The closest I ever came to being a lawyer was a semester class in college on
business law. One of the topics I vaguely remember is the the laws of agency,
so I am wondering if SCOX is a agent of Novell? If yes, then I see several
effects:
1. An agent has the authority to act on behalf of another party. Limited by law
and contract, the principle party has final authority.
Unless the contract between Novell and oldSCO says otherwise, Novell rescinding
SCOX's attempted suspension of IBMs license puts SCOX in breach of the
agreement.
This is one of several breeches of the contract. What does the contract say
Novell can do to force compliance or revoke the contract?
2. The laws of agency means actions by the agent are binding on the principle
even if there was fraud or illegal action by the agent.
Even if SCOX wasn't authorized to grant licenses to Sun (this agreement looks
valid to me) or Microsoft (what was licensed?) or SCOX wasn't authorized to keep
all of the fees, the licenses granted cannot be revoked or additional fees
required.
Can PJ or a lawyer comment on my ideas, or did I miss something by not taking
the second semester of business law?
Thanks
---
_Richard[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, July 24 2006 @ 03:26 AM EDT |
Even if they do not have to own it, at least they should show that there was
some material contributed by them under the non-disclosure clause improperly
disclosed.
And as far as I have read, they do not prove anywere that they contributed any
of the disclosed material.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, July 24 2006 @ 04:53 AM EDT |
Now, I'll try to read that later, but for now, I'm just curious-- somewhere in
this big supporting declaration, do they at any point explain exactly why
their fancy new legal theory precludes them from following the courts'
rulings? Because the very clear understanding I got from reading the judge's
order that SCO is now "objecting" to was that the sole reason SCO was being
sanctioned was because they weren't following the court's orders re:
specificty.
It seems like IBM was like "SCO is not following the
procedures of this court" and the court was like "Yes, SCO is not following the
procedures of this court" and SCO's only defense is to basically re-plead their
entire case (including parts which shouldn't even really be dealt with until the
next PSJ phase) as an "objection".[ Reply to This | # ]
|
| |
| Authored by: mickkelly on Monday, July 24 2006 @ 04:54 AM EDT |
Let us look closely at the quote PJ used in her article:
"SCO does
not and need not assert that it "owned" the methods and concepts; the
non-disclosure restrictions on IBM were independent of any question of
ownership....SCO need not show that it "owned" the material disclosed, only that
restrictions in the license agreements govern those methods and concepts which
it has done."
(emphasize mine)
Now in a normal (not
legal) discussion or debate, in plain English, we would think that SCO said that
they did not own the material.
But if you look closely they don't
say that. They just don't assert ownership, because they need not do that. What
they also do not do is saying that IBM owns it. They are also not
saying IBM does not own the material. They are saying that ownership is
not relevant because IBM's contractual obligation (as far fetched as that may
seem to us) was to keep the material confidential regardless of ownership.
Thus I predicted SCO will (at a later time) claim, they did not admit any
ownership of IBM and that they did not say that they did not own the material
(they only did not assert ownership at a specific point in time, because
it was irrelevant, which is they can still assert ownership later).
---
- may you ever drink deep - [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, July 24 2006 @ 05:56 AM EDT |
If they agreed not to disclose, then as long as it is not public domain, they
are bound not to disclose.
i.e. a software product might have "secrets" licesed from several
vendors. The agreemment would cover all of these, even thou SCO did not own
them.
Dennis
[ Reply to This | # ]
|
| |
| Authored by: belzecue on Monday, July 24 2006 @ 08:22 AM EDT |
"SCO's legal team may be congratulating themselves over stretching
this nothing out as long as they did, laughing in their beer perhaps at their
cleverness, but what I am feeling today is all that everyone went through,
including in my case the egregious smears on my good name because I dared to
write that the emperor had no clothes."
That brings back some
bitter, bitter feelings for me too. Because, like the other old-timers here, I
remember watching (in horror) as "the gang who couldn't shoot straight" ...
well, *didn't* shoot straight -- resulting in several innocent bystanders paying
dearly for SCO's rapacious behaviour. *Dearly*. You know who I'm talking about,
Mr Yarro. I hope you see their faces when you close your eyes at night. Shame on
you.
(Apologies, PJ. I'll no more on't! It hath made me mad.)
[ Reply to This | # ]
|
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| Authored by: Anonymous on Monday, July 24 2006 @ 08:41 AM EDT |
SCO has apparently attached IBM's first, second and sixth set of
interrogatories as proof that they never included methods and concepts when
asking for version, file and lines of code.
It's very telling that they left out IBM's third, fourth and fifth sets of
interrogatories. Maybe they did ask for liens of code in regard to methods and
concepts???
I have looked a the IBM time line and I cannot find the third fourth and fifth
sets of interrogatories. All I can find are certificates of service for them.
Does anyone have the actual documents anywhere? Or does IBM not have to file
them with the court?[ Reply to This | # ]
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| Authored by: mossc on Monday, July 24 2006 @ 08:56 AM EDT |
I don't think this was all the suit was originally about. I think they came up
with this derivative works methods and concepts idea as the rest of the case
fell apart. Each and every overlength court filing went to great lengths to
avoid stating this claim clearly. I expect because they realized how tenous it
was.
I would think that in a historical context you could show that this
interpretation is without basis. If this were an accurate interpretation of
what AT&T and the other parties understood lawsuits would have been flying
since day one.
A patent application has to disclose all methods and concepts. Prior to
"disclosure" to linux developers all of the IBM/Sequent owned patented
methods and concepts they were publically disclosed in the patent application.
They are many examples of companies that have patented technologies in their
versions of Unix. Sun and HP have extensive patent portfolios and they have
been declared clean.
I know of no other examples of AT&T or its successors complaining about
licensees patenting technology in their versions of UNIX.
I know of no other examples of AT&T or its successors objecting to any
licensee disclosing their own M&C in any other form.
As to damages, if IBM was free to do whatever they wanted with AIX including
giving it away(except source code), how does it hurt AT&T and its alleged
successors more to disclose it to linux developers?
How can Sun and HP be clean with regard to this type of infraction?
Chuck[ Reply to This | # ]
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| Authored by: DaveJakeman on Monday, July 24 2006 @ 10:24 AM EDT |
'SCO does not and need not assert that it "owned" the methods and
concepts; the non-disclosure restrictions on IBM were independent of any
question of ownership....SCO need not show that it "owned" the
material disclosed, only that restrictions in the license agreements govern
those methods and concepts which it has done.'
Is this not akin to SCO saying they Need Not show where certain methods and
concepts wound up in Linux; only that they were disclosed? If SCO were to show
where said methods and concepts wound up in Linux, IBM would be able to defend
itself.
Likewise, if the ownership of methods and concepts were considered in relation
to non-disclosure restrictions, might IBM be able to defend itself?
What is it about SCO that means SCO Need Not?
Need Not SCO make sense?
---
Shampoo for my real friends, real poo for my sham friends - not Francis Bacon
---
Should one hear an accusation, try it out on the accuser.[ Reply to This | # ]
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| Authored by: Jude on Monday, July 24 2006 @ 10:55 AM EDT |
... if SCO should prevail with their contract interpretation?
My guess is that the contracts and amendments don't explicitly say anything
about not disclosing the licensees' own IP because nobody ever thought of such
an interpretation. I suspect there are countless other contracts in force that
include non-disclosure clauses but lack language that would exclude claims under
SCO's theory. What happens to our court system when everyone who holds such a
contract discovers SCO's marvellous new way to sue?
[ Reply to This | # ]
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| Authored by: Terrier Tribe on Monday, July 24 2006 @ 11:38 AM EDT |
| And MS and Sun paid for what? [ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 11:39 AM EDT |
SCO's recent blunderbuss completely avoids the point of Judge Well's and
Judge Kimball's court orders: Provide specificity by file and line number.
Judge Wells sanctioned SCO for failure to follow court orders.
SCO clearly cannot argue that they did follow court orders. Thus it tries to
change the court case into a contract case - essentially abandoning its
charges of copyright infringement.
SCO will lose if the case is solely based on contracts and its interpretation of
the contracts because the lawsuit becomes a matter of law. Thus the case
does not go to the jury. Rather, Judge Kimball will be the one to decide the
matter.
Despite SCO's weasel words, all the evidence should the case boil down to
contract interpretation are on IBM's side. SCO simply cannot reinterpret the
meaning of the contracts, nor can it escape its own contract obligations (e.g.
allowing Novell to order SCO to void its lawsuit).
What is interesting is that SCO's latest filing leaves SCO even more
defenseless against IBM's countersuits.[ Reply to This | # ]
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| Authored by: jmc on Monday, July 24 2006 @ 12:13 PM EDT |
When are SCO and their stupid lawsuits going to be put out of their
self-inflicted misery?
If a dog or horse you owned were suffering like this at least in the UK you'd be
arrested for cruelty.
I keep thinking that one day SCO will produce *something* just one teensy little
thing, just one that makes some sort of sense viewed with the light behind it
but after over 3 years it hasn't happened.
It just gets more bizarre by the second.[ Reply to This | # ]
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| Authored by: skidrash on Monday, July 24 2006 @ 12:21 PM EDT |
Judge Wells made up her mind. She could have given any reason, but picked
willfulness.
Note especially well " ... or is otherwise culpable."
I. Standards of Review
A court has “wide discretion in imposing sanctions,
including severe sanctions, under Rule 37(b)(2), . . .”72
“Severe sanctions are justified . . . when the failure to comply
with a court order is due to willfulness or bad faith, or is
otherwise culpable.”73
Pursuant to Rule 37([ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 12:26 PM EDT |
The truth is finally out. I can just envision the conversation that led to this
lawsuit...
SCO: We can't make money selling Linux. We can't make money selling Unix
either. So maybe if we sue IBM over some stuff that we probably don't even own,
we might make some money. After all IBM seems to be making money from Linux,
AIX, and Dynix.
SCO Lawyers: What stuff do you want to sue IBM for?
SCO: We really don't know. We have no clue what is in Unix code, and we have
no clue what is in Linux, AIX, or Dynix either. We don't even know if we own
the stuff in Unix or not, we're trying to figure that out through our
communications with Novell. If need be we'll just claim that we don't need to
own it in order to sue about it. Let's just sue them and figure out what we're
sueing about during trial.
SCO Lawyers: But don't you sell Linux and Unix? How can you sue IBM over
something that you yourselves sell?
SCO: That's easy. We'll just claim that Linux and the GPL is unconstitutional
or something like that. And we'll claim that we didn't know what was in Linux
when we sold it. Yeah, that'll work.
SCO Lawyers: Uum, that's not a good strategy. We want payment in advance.
.....
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 12:32 PM EDT |
we'll undoubtably make an ASS out of U & Me - but beyond that it would still
leave SCO's claims open to summary judgement. In order for these claims to hold
up there would have to be some evidence that:
a) The concepts and methods were developed by IBM or Sequent.
b) The concepts and methods were embodied in Dynix or AIX.
c) The concepts and methods were not disclosed to any other third party before
they were embodied in Dynix or AIX.
At the very least SCO would be obligated to show lines of code where the
concepts came from in Dynix or AIX. It isn't enough to show that someone claimed
that that's where they came from.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 12:45 PM EDT |
If SCO says that this case is about "methods and concepts", how do
they define a "method and concept"? Is there a legal definition?
Does SCO offer a definition?
Not only are they claiming that they can sue over something that they don't own,
they are claiming that they can sue over something that they can't define.
I'll start suing people over...
"plans and thoughts"
"schemes and plots"
"stratagems and tactics"
"constructs and theories"
"notions and abstractions"
...that I don't even claim to own. I'll get rich!
[ Reply to This | # ]
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| Authored by: dwandre on Monday, July 24 2006 @ 02:38 PM EDT |
| Doesn't lack of ownership constitute a lack of standing to bring a complaint? [ Reply to This | # ]
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| Authored by: ExcludedMiddle on Monday, July 24 2006 @ 03:05 PM EDT |
According to the deadlines, dispositive motions are due on the 28th, this
Friday. A day that all of us but SCO has been waiting for with great
expectations.
If you think about it, SCO's objection to Wells' order brings up a possibility
for delay, or at least a lot more work for IBM. At this point, since the Wells
order has cut off a number of claims, IBM will not file dispositive motions
regarding the dropped claims from Wells' order (and they'd be foolish to do so,
because it would partially validate SCO's arguments.) But if the dispositive
motions are filed Friday, and then Kimball later decides to reverse any of
Wells' work, I hope that IBM will have the opportunity to file dispositive
motions about any items that get put BACK on the table.
I assume that Kimball will have to take some time to answer this motion, no
matter which way he rules, so this will be a possible issue at a later date.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 03:42 PM EDT |
A contract is defined by what was agreed in the minds of
the parties entering into the contract at the time the
contract was entered into. The contract was between IBM
and AT&T. AT&T and IBM have clearly stated that they
always considered that the contract did not bind IBM with
regard to any IP owned by IBM and used in Unix - only
derivatives that included the code that IBM licensed from
AT&T. Both parties have always acted as if this was the
case. SCO can't in retrospect re-interpret the contract
in a different (and completely bizarre) way.
Hence SCO's claims about concepts and methods should fail
at the most basic level in terms of contract law, quite
apart from other things.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 04:15 PM EDT |
Regardless of ownership claims SCO has still failed to meet the specificity
ordered by the Judge.
As both sides have agreed specific references are required to identify methods
and concepts. A method/concept needs a hard definition before one can begin to
argue about
1) where it existed prior to release
2) where it was communicated to by a release
3) is the concept public knowledge
4) who owns it
5) etc
SCO still failed to clearly identify the concepts it wishes to claim as being
improperly released.
All this bluster about rights to communicate is as bogus as it ever was without
properly identifying the methods and concepts.
This looks like another attempt by SCO to shift the argument from what it should
be.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 04:49 PM EDT |
When did IBM agree that they needed permission from SCO before disclosing any of
their code, methods or concepts. Is there somewhere some mention by SCO why the
$echo letter doesn't apply? Is this is the redacted stuff?[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 05:13 PM EDT |
Software patents have to fully disclose the methods and concepts used -
exposing them to the world - or Linux for that matter.
From SCO's interpretation of the IBM-ATT contract, IBM has to ask SCO for
permission before filing ANY IBM software patent.
That interpretation is PATENTLY absurd.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 06:50 PM EDT |
The stock price.
SCOX has dropped down to $2.50 and they are scared witless. They know their
stock is perceived as nothing but a lawsuit lottery ticket and they need to make
it look valuable. They are desperate to get these claims reinstated to get
their stock price up.
How much longer until they get delisted? This is a serious question.
[ Reply to This | # ]
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| Authored by: dnl on Monday, July 24 2006 @ 10:23 PM EDT |
When fact are on your side, pound on the facts.
When law is on
your side, pound on the law.
When nothing is on your side, pound on
the table.
There's nothing left of that table but tiny
splinters... [ Reply to This | # ]
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| Authored by: Anonymous on Monday, July 24 2006 @ 11:34 PM EDT |
SCO and their lawyers are not emperors. Rather they are the vilest bit of dung
that ever stuck to the bottom of a shoe. Of course, they don't have clothes.
Their lies are no different in character from the lies any ordinary scumbag
would make after getting caught fleeing the scene of an attempted murder.
If Darl McBride and all his scumbag friends decide to rejoin the human race, it
should be from behind bars, doing hard labor for the rest of the worthless
lives.[ Reply to This | # ]
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