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SCO Refiles the Leaked Memoranda
Thursday, December 28 2006 @ 10:23 PM EST

I believe this says it all:
909 - Filed & Entered: 12/28/2006
Redacted Document
Docket Text: REDACTION to [861] Sealed Document REFILE of Document #907: Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Appendix A)(Hatch, Brent)

910 - Filed & Entered: 12/28/2006
Redacted Document
Docket Text: REDACTION to [868] Sealed Document, REFILE of Document #908:Memorandum in Opposition to IBM's Motion for Summary Judgment on SCO's Interference Claims by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Appendix A)(Hatch, Brent)

For text, go here for 909 and Appendix A, which was improperly redacted and filed as 907, and here for 910 and Appendix A, which was 908.

SCO's stock went up 1.89% today, coincidentally I'm sure.

And if you want to know why I think that no matter how many ways SCO finds to accidentally leak IBM emails, it isn't likely to help, you might find IBM's Memorandum in Support of its Motion for Summary Judgment of SCO's Unfair Competition Claim (SCO's Sixth Cause of Action) of interest, in which IBM revealed that under the contract with Santa Cruz, Santa Cruz was supposed to get IBM's written consent to any assignment of the Project Monterey agreement in a change of control. It didn't ask for permission regarding the sale to Caldera, and further IBM sent a letter in June of 2001 expressly refusing to consent to the contract being assigned to Caldera.

That, IBM points out, means that SCO can whine about Project Monterey all day without it meaning anything legally, because "SCO was never party to and does not have standing to assert a claim related to a breach of the Monterey JDA."


  


SCO Refiles the Leaked Memoranda | 219 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO continues to amaze with running out the clock
Authored by: Anonymous on Thursday, December 28 2006 @ 10:33 PM EST
SCOX should'a been clocked quite some years ago. This is now just farce if it
weren't so expensive. Think of all the person-hours lost to reading/writing GL.

[ Reply to This | # ]

OT Here, Please
Authored by: TheBlueSkyRanger on Thursday, December 28 2006 @ 10:34 PM EST
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Corrections Here, Please
Authored by: TheBlueSkyRanger on Thursday, December 28 2006 @ 10:36 PM EST
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

The truth is slow....
Authored by: kawabago on Thursday, December 28 2006 @ 11:27 PM EST
But it's a steamroller!

[ Reply to This | # ]

But he SAID!
Authored by: meshuggeneh on Friday, December 29 2006 @ 12:27 AM EST
SCO can whine about Project Monterey all day without it meaning anything legally, because "SCO was never party to and does not have standing to assert a claim related to a breach of the Monterey JDA."
SCOBOIES: But IBM called me "partner"! waah.

[ Reply to This | # ]

SCO Refiles the Leaked Memoranda
Authored by: electron on Friday, December 29 2006 @ 01:39 AM EST
> 24. IBM ALLEGED FACT: Section 22.12 of the JDA, which is
> entitled "Assignment", provides, in relevant part: "either
> party may assign, or otherwise transfer, its rights or
> delegate any of its duties or obligations under this
> agreement without the prior written consent of the other
> party." (Ex. 245.)
> SCO RESPONSE: Undisputed that the JDA contains this
> provision. Disputed to the extent it implies that IBM did
> not Deceive`deceive Santa Cruz and sco into believing that
> it intended to consent to the assignment and continue the
> Monterey venture with Caldera after the closing of the
> Santa Cruz-Caldera transaction. (7 61-68.)

So it appears that SCO does not dispute that the contract requires PRIOR written
consent from IBM *before* any such transaction is executed that would assign
control to some other organisation.

If the contract obligates Santa Crus to get such consent, then why does Caldera
think any such deal should have been executed without FIRST having sought those
consents - unless it thought it would not receive IBM's consent.

IBM quite rightly stood by the letter AND spirit of the contract.


---
Electron

"A life? Sounds great! Do you know where I could download one?"

[ Reply to This | # ]

Style questions on opposition motions
Authored by: crs17 on Friday, December 29 2006 @ 05:57 AM EST
SCO and IBM seem to have a major style difference in the opposition motions.
When answering a paragraph from the original, IBM just writes the paragraph
number and follows it with IBM's answer. SCO paraphrases "IBM's purported
<whatever>" and then follows it with SCO's answer.

Ignoring the facts in this case, would anyone like to comment on these two
styles. Which is more common? I find SCO's to be a little like banging with a
hammer after a while.

Craig

[ Reply to This | # ]

SCO Refiles the Leaked Memoranda
Authored by: jeremyg on Friday, December 29 2006 @ 08:26 AM EST
"nobbut" on the google finance group is claiming PJ "spread around" the original filing.
Google Finance posting

I can't post a comment as I'm at work but somebody might like to correct the misconception that PJ deliberately propagated the improperly redacted filing,

Cheers,

Jeremy

[ Reply to This | # ]

SCO Refiles the Leaked Memoranda
Authored by: pooky on Friday, December 29 2006 @ 10:08 AM EST
How is this not a slam dunk for IBM?

It is undisputed that Santa Cruz was required to obtain written consent from IBM
to transfer it's rights under the JDA to another company.

It is undisputed that Santa Cruz did not obtain that consent in writing.

SCO admits all of this in their own filing but somehow is still arguing that
that language does not mean what it means.

Whether IBM sent the June 2001 letter refusing to consent is irrelevant, SCO
cannot produce written consent to the deal therefore there is no consent.
Without consent to continue, the contract remained with Santa Cruz and did not
go to Caldera, therefore Caldera/SCO has absolutely no standing to sue IBM for
breaching this agreement.

--pooky

---
Many Bothans died to bring us this information.

[ Reply to This | # ]

A question for PJ
Authored by: Anonymous on Friday, December 29 2006 @ 11:12 AM EST
If one of those shiny new Vista Laptops, compliments of Microsoft, arrived in
your post, what would you do with it? Just wondering after seing the blog
article in the Newspicks :)

Tufty

[ Reply to This | # ]

Will the "real" SCO please stand up!
Authored by: Anonymous on Friday, December 29 2006 @ 11:57 AM EST
Ok, this nonsense has to stop. Really!

Will SCO *PLEASE* once and for all decide *who* they are?!

Reading their filings, motions and other documents, it seems they're picking and
choosing paragraphs and deciding which identity is best suited to respond to the
statements.

But then when such tactics backfire on them, they decide they weren't actually
attempting to be the other identity, they are actually "new-SCO", even
though they claimed to be TSG, old-SCO, Calderra, Tarantella, or whoever
instead...

Question for SCO: Who are you? really? Old-SCO? Calderra? TSG? Tarantella?
New-SCO ? Who ? And do you really expect us to believe there is a continuous
lineage from one to the next? You really expect anyone to fall for that BS
still? Or were you hoping you could slip one past the judges? nice try!

Question for the lawyers out there: Since Corporations can have
"identities" can corporations also be branded has "mentally
unstable" or have "split personality disorder" ?

Because it seems like we might have a founding case for this in this instance.
This case could just be a landmark case for identifying corporations identity
issues.

I mean, just imagine if SCO could be thrown out of court for being
"mentally unable" to proceed. Now that'd be funny!

[ Reply to This | # ]

SCO Refiles the Leaked Memoranda
Authored by: Anonymous on Friday, December 29 2006 @ 12:34 PM EST
LOL!!

they just keep outdoing themselves everyday.

shows you how intelligent stock prices are and those that live and die by them.

when a company can be so stupid their price goes up.

[ Reply to This | # ]

SCO Refiles the Leaked Memoranda
Authored by: Anonymous on Friday, December 29 2006 @ 01:27 PM EST
> SCO's stock went up 1.89% today

1.89% of nothing is what again...?!? <wink>

[ Reply to This | # ]

The missing Compiler
Authored by: arch_dude on Friday, December 29 2006 @ 06:05 PM EST
SCO goes on and on about the "sham" software delivery by IBM. Their
biggest piece of "evidence" is that IBM did not deliver a compiler for
Itanium, but instead recommended that the users use the compiler provided by
Intel. It took me awhile to realize just how preposterous this argument is. It
is actually far beyond preposterous: Here's why:

The fundamental differentiator ofthe Itanium architecture is that is uses EPIC.
This is a form of VLIW architecture, as opposed ot RISC ro CISC architecture.
Itanium is the first and so far the only EPIC architecture. The concept behine
EPIC is that the compiler will explicitly identify instruction parallelism at
compile time, so the processor design does not need to waste complexity and real
estate on evaluating instruction parallelism. HP and Intel had been working on
this concept since 1989. It turns out that it is really, really hard to write
such a compiler, and the system performance depends fundamentally on the quality
of the compuiler: this is the heart of the EPIC concept.

With EPIC, the processor and the compiler must be co-designed. the compiler
represents a tremendous investment. Intel was both the hardwre manufacturer and
a member of Project Monterey. There is no way that any compiler other than
Intel's compiler could have been used.This was not IBM's decision to make.

Yes, there is a GCC compiler for Itanium, but if the EPIC paradigm has any
validity, the GCC cokmpiler cannot produce code as efficient as the Intel
compiler. In effect the Intel compiler is part of the hardware system design.

[ Reply to This | # ]

What emails are these?
Authored by: Anonymous on Sunday, December 31 2006 @ 08:59 AM EST
And if you want to know why I think that no matter how many ways SCO finds to accidentally leak IBM emails

Are these the emails that tSCOg does not have in its possession and asked the judge to review (while they looked over her shoulder) because, from memory, when they accidentally looked at them, they recall that they may have contained relevant information.

Or are these some other IBM emails that they shouldn't have but accidentally retained, or, are these emails that IBM has only supplied in sealed documents and tSCOg unilaterally choose to unseal.

I'm just a little lost as to which emails they are trying to get out. Last time it was emails covered by privledge - which the judge ruled were correctly covered by privledge. Emails that tSCOg was meant to return or destroy.

[ Reply to This | # ]

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