|
|
| Buckets of Filings in SCO v. IBM |
 |
|
Saturday, January 13 2007 @ 12:27 AM EST
|
There are a lot of new filings in SCO v. IBM. Mostly it's asking for
permission to talk a lot, and the rest are notices of conventional filing
of sealed materials. Just as one example: IBM’s Reply Memorandum in Further Support of Its Motion for Summary Judgment on SCO’s Contract Claims (SCO’s First, Second, Third and Fourth Causes of Action), which consists of approximately 81 pages of legal argument, exclusive of face sheet, preliminary statement, statement of facts, declarations and exhibits.
IBM points out, however, that in SCO's opposition to IBM's various motions for summary judgment, "SCO has submitted briefs in excess of 830 total pages, including memoranda and appendices." So both sides have a lot to say, which is why there are limits to begin with, I suppose.
From the new filings on Pacer we can read, we learn that the parties have stipulated to a change in some deadlines:
Both parties’ responses to all outstanding requests for admission shall be due on March 30, 2007; Rule 26(a)(3) Disclosures shall be due on April 12, 2007; Deadline for Exchanging Jury Instructions shall be April 27, 2007; Motions in Limine shall be due on May 4, 2007; Final Pretrial Order shall be due 45 days before trial; Special Attorney Conference and Settlement Conference shall be due 30 days before trial. And we get to read SCO’S Reply Memorandum in Support of its Motion for Summary Judgment of its Motion for Summary Judgment on IBM's 6th, 7th and 8th Counterclaim, in which we get to enjoy SCO claiming that as a matter of law it has complied with the GPL and never repudiated it. I'll put that up separately, as text.
A motion in limine is "a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial." It's stuff the jury never hears, unless a lawyer goofs, an example of which you can find in the January 5th transcript in the Comes v. Microsoft trial, where a Microsoft lawyer mentioned motions in limine before the jury and was told by the judge not to do so. At trial, there can be issues of what evidence can or can't be used, even when there has been a ruling on a motion in limine, and if you wish to see an example of that, read this transcript of January 11th in the Comes case, where there is a long discussion of what Ronald Alepin can and can't be asked.
***********************
917 -
Filed & Entered:
01/09/2007
Terminated:
01/10/2007
Motion for Leave to File
Docket Text: Plaintiff's MOTION for Leave to File OVER LENGTH MEMORANDUM IN SUPPORT OF ITS OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDER ON IBM'S MOTION TO CONFINE filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Text of
Proposed Order) Motions referred to Brooke C. Wells.(Hatch, Brent)
920 -
Filed:
01/09/2007
Entered:
01/10/2007
Order on Motion for Admission Pro Hac Vice
Docket Text: ORDER granting [905] Motion for Admission Pro Hac Vice of Sashi Bach Boruchow for SCO Group.
Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov
. Signed by Judge Dale A. Kimball on 1/8/07. (blk)
921 -
Filed:
01/09/2007
Entered:
01/10/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** MEMORANDUM IN SUPPORT re [899] Objection to Magistrate Judge Decision to District Court filed by Plaintiff SCO Group. (Clerks Note: Exhibits are oversized and not attached to this entry. They will be retained in the Clerks Office 5th floor sealed room for viewing by authorized persons only.) (blk)
922 -
Filed:
01/09/2007
Entered:
01/10/2007
Sealed Document
Docket Text: **SEALED DOCUMENT** EXHIBITS 1, 2 & 3 to [914] Memorandum in Support of [913] MOTION to Amend/Correct DECEMBER 2005 SUBMISSION, filed by Plaintiff SCO Group. (Clerks Note: Oversized - not attaches. Retained in sealed room.) (blk)
918 -
Filed & Entered:
01/10/2007
Motion for Extension of Time
Docket Text: Stipulated MOTION for Extension of Time of Deadlines filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of
Proposed Order) Motions referred to Brooke C. Wells.(Shaughnessy, Todd)
919 -
Filed & Entered:
01/10/2007
Order on Motion for Leave to File
Docket Text: ORDER granting [917] Motion for Leave to File overlength memo. Signed by Judge Dale A. Kimball on 1/10/07. (blk)
923 -
Filed & Entered:
01/12/2007
Motion for Leave to File Excess Pages
Docket Text: Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages filed by Defendant International Business Machines Corporation. (Attachments: # (1) Text of
Proposed Order) Motions referred to Brooke C. Wells.(Shaughnessy, Todd)
924 -
Filed & Entered:
01/12/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of (1) IBM's Reply Memorandum in Further Support of its Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action); (2) IBM's Reply Memorandum in Further Support of Its Motion for Summary Judgment on SCO's Copyright Claim (SCO's Fifth Cause of Action); (3) IBM's Reply Memorandum in Further Support of Its Motion for Summary Judgment on SCO's Unfair Competition Claim (SCO's Sixth Cause of Action); (4) IBM's Reply Memorandum in Further Support of Its Motion for Summary Judgment on SCO's Interference Claims (SCO's Seventh, Eighth and Ninth Causes of Action); (5) IBM's Reply Memorandum in Further Support of Its Motion for Summary Judgment Regarding Its Claim for Declaratory Judgment of Non-Infringement (IBM's Tenth Counterclaim); (6) IBM's Reply Memorandum in Further Support of Its Motion for Summary Judgment on Its Claim for Copyright Infringement Claim (IBM's Eighth Counterclaim); (7) Declaration of Todd M. Shaughnessy; (8) Supplemental Declaration of Todd M. Shaughnessy filed by Defendant International Business Machines Corporation (Shaughnessy, Todd)
925 -
Filed & Entered:
01/12/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of SCO'S REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON SCO'S THIRD CAUSE OF ACTION, FOR BREACH OF CONTRACT filed by Plaintiff SCO Group, Counter Defendant SCO Group (Hatch, Brent)
926 -
Filed & Entered:
01/12/2007
Notice of Conventional Filing
Docket Text: NOTICE OF CONVENTIONAL FILING of PLAINTIFF/COUNTERCLAIM-DEFENDANT SCO'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON IBM'S SECOND, THIRD, FOURTH AND FIFTH COUNTERCLAIMS filed by Plaintiff SCO Group, Counter Defendant SCO Group (Hatch, Brent)
927
Filed & Entered:
01/12/2007
Motion for Leave to File
Docket Text: MOTION for Leave to File SCO's Over length Reply Memorandum in Further Support of its Motion for Partial Summary Judgment on SCO's Third Cause of Action, For Breach of Contract filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Text of
Proposed Order) Motions referred to Brooke C. Wells.(Hatch, Brent)
928 -
Filed & Entered:
01/12/2007
Motion for Leave to File
Docket Text: Ex Parte (Not Sealed) MOTION for Leave to File Over Length Reply Memorandum in Support of its Motion for Summary Judgment on IBM's Sixth, Seventh and Eighth Counterclaims filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Text of
Proposed Order) Motions referred to Brooke C. Wells.(Hatch, Brent)
929 -
Filed & Entered:
01/12/2007
Motion for Leave to File
Docket Text: Ex Parte (Not Sealed) MOTION for Leave to File Over Length Reply Memorandum in Support of Motion for Summary Jugment on IBM's Second, Third, Fourth and Fifth Counterclaims filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Attachments: # (1) Text of
Proposed Order) Motions referred to Brooke C. Wells.(Hatch, Brent)
930 -
Filed & Entered:
01/12/2007
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [777] MOTION for Summary Judgment on IBM's Sixth, Seventh, and Eighth Counterclaims filed by Plaintiff SCO Group, Counter Defendant SCO Group. (Hatch, Brent)
|
|
|
|
| Authored by: webster on Saturday, January 13 2007 @ 12:38 AM EST |
.
---
webster
[ Reply to This | # ]
|
| |
| Authored by: ankylosaurus on Saturday, January 13 2007 @ 12:39 AM EST |
Please remember to make links clickable - thanks.
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 13 2007 @ 01:16 AM EST |
| keyboard doppleganger [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 13 2007 @ 01:39 AM EST |
It looks to me like Mr. Brent Hatch's days of practicing law are numbered.
I count six items in filing 930 that would lead to disbarment.
I'm very surprised he placed his name on this document.
Making knowingly false and libelous statements not to mention defamation of
a person not a party to a suit.
That fact this is court filing (motion) is not and can not be defense.
I'm amazed he placed his name on this document. [ Reply to This | # ]
|
| |
| Authored by: webster on Saturday, January 13 2007 @ 02:11 AM EST |
.
1. PJ is guiding us through a course in complex corporate litigation that will
give her followers more experience than any law student ever had. Many lawyers
too. Instead of starting out with a short simple case, we have a litigate war
with multiple complex suits. One can search for a rule or concept, read PJ's
introduction, then see it argued in fact and in caselaw. At times she presents
key cases. This is an incredible tool for following SCO or just learning about
the process.
2. SCO has some daunting problems. Foremost are the evidentiary problem, the
Judges, and the PSJ's. It is like they need three touchdowns in three minutes.
3. The evidentiary problem stems from their lack of evidence and their playing
games for two years. Wells found their not specifying after two years
"willfull." They lost credibility over that time. Their burden of
persuasion before these judges is extra heavy. Why didn't they specify, such as
they could, the material discussed by their experts, such as they are? They
either deliberately, "willfully" held it back (sandbagging), or they
made a colossal error and forgot to put it in. It appears to be the former,
"willfull" disregard of the discovery orders and deadline. They don't
admit to a mistake, but insist they made a reasonable interpretation that expert
code need not be specified until expert reports are due. Since experts are
needed to interpret all code, this reasoning is an absurdity. The Judges won't
let it in even though there is no longer any calendar or even a trial date! SCO
has all the time in the world now, but the court won't forget SCO's
dilly-dallying and ignoring deadlines and orders.
3.1 More on evidence. If you've picked a good jury who looks you in the eye
and appears to like you, you want to point at some evidence and give them a
reason to vote your way since they are so inclined. At the moment, SCO can't
talk about their unspecified expert evidence. They can't say IBM stole their
structure and organization or some relevant methods and concepts. They can't use
it to counter the PSJ's! Oh Woe is SCO? It's tough. Overlength begging is
unbecoming.
4. The Judges lately have been in lock-step but not marching SCO's way. Worse
yet, Kimball seems to feel that he knows which way the wind's blowing. He has
dropped the IBM trial off his calendar. He is in no hurry to reschedule. Worse
yet he thinks Novell can go first. What good can come to SCO out of Novell?
The Judge suspects that it may have some impact on the IBM trial. It might
eliminate it. It's not like SCO can go one for two and call it a season. They
have to win both or it's over for them. What can they argue in Novell without
copyrights? An astonishing thought. Kimball might get a long vacation this
year. There may be some new holes in his calendar.
5. SCO has to overcome almost all of the PSJ"s. Consider the one on their
contract claim. They have to win the contract interpretation argument, the
didn't happen argument, the Novell waiver argument, the SCO waiver argument, the
GPL argument, and the SCO estoppel argument. The Judge could rule for them on
one and then rule against them on another. Then he could conditionally find
against them on the rest. Makes for an expensive and futile appeal. No wonder
they are overlength.
6. We should bet on the number of the final filing in this matter. How about
2*930+1=1861? This is including the objections and reconsiderations. And the
'in limines!' Hope that it doesn't get that far.
7. What do you think the average legal cost per filing is? Remember they bill
for writing their own and reading the opponents. 930 * $20,000? Add
expert$....depositions...investigation. We haven't even gotten to trial yet.
This is low.
---
webster
[ Reply to This | # ]
|
| |
| Authored by: tknarr on Saturday, January 13 2007 @ 02:29 AM EST |
In 930, Hatch addresses something other than IBM's counterclaims. He goes on
about SCO's copyrights, but the counterclaims aren't about SCO's distribution of
SCO's code in Linux. They're about SCO's distribution of IBM's code in
Linux. That SCO never knowingly licensed their own code under the GPL is
irrelevant, IBM did license theirs. Which means that most of Hatch's arguments
here are off-point, since they address SCO's code, not IBM's. IBM's going to
tear them apart on that. Then the judge will get his turn. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 13 2007 @ 03:37 AM EST |
930 page 10 item 3 "It is also undisputed that SCO did not modify
Linux".[ Reply to This | # ]
|
| |
| Authored by: sproggit on Saturday, January 13 2007 @ 04:36 AM EST |
One of the best aspects of Groklaw is the perspective it gives us. The
combination of many diverse opinions, coordinated and interspersed with PJ's
analysis and views of regulars such as Marbux and AllParadox [who's been quiet
lately, which is a shame] have made this a fascinating community for a while
now.
So thanks, PJ, for creating this place and bringing this into being.
Speaking of brilliance, we have to stand in awe and respect of the IBM legal
Team. They have worked on this case from so many different perspectives and
levels that only now are we beginning to see the fruits of strategies that they
launched years ago.
I think one of their strongest advantages was actually handed to them by The SCO
Group the day that the "capped fees" deal was announced amid a fanfare
of trumpets. IBM thought about that carefully. They have kept their cards close
all this time. They have allowed BSF and TSG to sing their songs, file their
motions, have their press calls, spend all their capped-fee dollars. IBM have
only moved with serious intent when necessary.
Here we are in the closing stages of pre-trial activity. IBM release a broadside
of motions - which we've all known they would. They've had all this time to sit
quietly by and prepare this work. We knew it was coming.
So now, when things are getting interesting, IBM is turning up the heat by
several notches all at once. I'm not suggesting that BSF have yet burned their
way through all the millions that they have been paid by Darl & Co. I'm not
suggesting that assorted anonymous PIPE Faries might not find other ways to
funnel more cash to prop up this ailing litigant.
But I don't think so. Something tells me that whatever backers TSG once had have
long since left the game.
We're seeing some evidence of this at the moment, with some of the filings [that
we see] being of a lesser quality than we might expect from the likes of BSF. So
they are either burning midnight oil and making mistakes, or they have juniors
doing the work, who are making mistakes.
Either way, IBM must have known a scenario like this was likely. They kept their
counsel, kept their powder try, biding their time.
So where does all this leave David Boies? When he was retained there was
discussion on this forum about several articles that were posted. One of them
characterised him as a man who could not turn down work, who would never say no.
This is a big case, and I've also recently seen a post that says he's going to
be defending Conrad Black, too. Both major, major items of work.
If you were David, and you were starting to have doubts about an ability to win
one of these cases, would you want your name associated with it? What is better
for the reputation of yourself and your firm?
When the evidence in IBM's favour [and there hasn't been much in the way of
evidence in TSG's favour, has there?] mounts up, he's going to have to look at
that and try and weigh up if this is a winnable case.
My guess is that if he decides his chances are slim to none, he might suddenly
get busy with Conrad Black. [ Reply to This | # ]
|
- Brilliance - Authored by: gbl on Saturday, January 13 2007 @ 08:11 AM EST
- Brilliance - Authored by: Anonymous on Saturday, January 13 2007 @ 10:20 AM EST
- AP just moved - Authored by: Anonymous on Saturday, January 13 2007 @ 12:19 PM EST
| |
| Authored by: BobinAlaska on Saturday, January 13 2007 @ 04:50 AM EST |
I seem to recall seeing several replies in various articles showing old SCO and
Caldera placing copyright notices in their Linux contributions. I know I was not
dreaming, but I can not find them at the moment. Can someone with better search
skills give it a shot. It would be nice to have the proof that they are once
again lying through their teeth in document 930.
---
Bob Helm, Juneau, Alaska
[ Reply to This | # ]
|
| |
| Authored by: darkonc on Saturday, January 13 2007 @ 04:53 AM EST |
- In it's response to IBM's motion for summary judgement on counterclaims
6, 7 and 8, (document 930)
SCO says at the top of the 6th page (Page 2 by their numbering):
SCO
thus never agreed to the distribution of its UNIX material prsuant to the GPL
and remained free to license that material in Linux to end-users for a fee,
as it did.
(emphasis mine). SCO is thus admitting (nay!
Boldly announcing) that they have attempted to relicense parts of
Linux.
SCO is now claiming that section 2b, doesn't apply to
them.
Section 2b says:
You must cause any work that you
distribute or publish, that in whole or in part contains or is derived from the
Program or any part thereof, to be licensed as a whole at no
charge to all third parties under the terms of this
License.
Their claim is that this section does not apply to code
that (they claim) belongs to them but was improperly placed by someone else.
Again -- even if one accepts this argument -- as long as Linux contains code
which is properly under the GPL, The GPL requires SCO to license the
entirety of the work under the GPL.
Once SCO became aware that it had a
(purported) claim on some of the code in LINUX, their only choices on
redistribution were to cause the impugned code to be properly
licensed under the GPL, or to remove it (and mark where and when they removed
it in accordance with the GPL). If, as SCO claims, they did neither, then they
were at that time in violation of the GPL, and their later attempts to
relicense (those) parts of Linux were simply adding insult (almost literally) to
injury.
-
Secondly, the GPL Section 1 requires that you "appropriately
publish on each copy an appropriate copyright notice". I would take this
to mean that, If SCO was aware that there was not an appropriate copyright
notice on some (of their) GPL code that they were distributing, then the license
obligated them to affix an appropriate notice. (If only as a corollary to
section 6's requirement to "cause the program, or any part thereof, to be
licensed as a whole")
-
Furthermore, the GPL does not only require that
you license the work to direct recipients, It requires that you also allow
them to redistribute (and thus sublicense ) the work to any -- and
everybody. As such, their claim that they didn't attempt to extract a sublicense
fee from direct recipients of their copy of Linux doesn't relieve them of
their breach of the license, even if th e claim was accepted as
true.
-
Finally, even if it turns out that none of the Linux code that they
claimed belongs to them but wasn't properly licensed actually belongs to them,
this does not free them from a breach of the license either, since section 4
notes, in part that:
Any attempt otherwise to copy, modify,
sublicense or distribute the Program is void, and will automatically
terminate your rights under this License.
And as I noted at
the top of this posting, SCO has eagerly admitted to attempting to repugnantly
relicense parts of Linux.
---
Powerful, committed communication.
Touching the jewel within each person and bringing it to life.. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 13 2007 @ 12:17 PM EST |
The filing in 930 is definetly one of the more interesting ones in this case.
The argument has changed. Apparently Linus somehow gained access to Sun's Unix
code and illegally copied it. precisely how this was done is not clear. Nor is
it clear if any investigation of a clean room implementation was made.
Secondly if the code was indeed copied from Sun's work why are SCO and not Sun
in court now?
Linus has admiited that the first versions were at best dodgy. Yet Sun's code
back in 1992 was being widely used. If Linus copied the code then by extension
Sun code back then must have been similarly dodgy. This is an assertion Sun
might not take too kindly.
While Solaris has since been open sourced (with a rise in business for Sun) we
dont I think have the Sun versions back in 1992 available for examination. Could
this new assertion by SCO be yet another attempt to re introduce discovery and
expert opinion by a new back door?
One is normally protected from libel suits in material filed in court. Linus is
not a party to the suit. Yet assertions that a reasonable man might consider
defamatory and relating to his profession (a factor courts take into
consideration) have been made. Priviledge from libel in court filings is at the
discression of the court: it is not an absolute right.
The court may decide on its own initiative to deal with this remark. The court
may also wave the immunity to libel if it believes that this immunity has been
abused.
While I do not know what testimony Linus has provided to the court I suspect
this contradicts what he said and that this is simply SCO trying to create a
disputed fact to avoid summary judgement.
Moving on, SCO's arguments are mostly logical and sensible if one accepts the
assertion that there is Unix code owned by SCO in Linux that SCO did not itself
put there. The problem arises that (1) SCO have failed to identify this
purported code, (2) that this is the first time that I know of that they have
accused anyone other than IBM of including Unix code in Linux and (3) that SCO
have failed to show that they own valid copyrights on any Unix code other than
that in the manuals.
They simply dont have the evidence to back up this claim.
If this evidence did exist their arguments might then make sense. But they dont
have it and their arguments must fail because of this.
Since they own nothing in Linux they have no rights to sublicence Linux as they
tried to do. Even if they did they have no right to redistribute GPLed code
unless they comply with the GPL. New and additional licences may not be GPL
compatable and SCO's attempt was not. They simply did not have the right to
distribute the code and thier contractual obligations to other parties do not
free them of this burden.
More lagal tap dancing over the meaning of repudiation and whether or not this
term applies here. Spare me this nonsense please. This is meaningless verbiage -
padding if you will.
Repudiaton normally refers to contracts. Is the GPL a licence or a contract?
Please lets not go there. Can this term be applied to a licence such as the GPL?
I cant see why not. But just maybe IBM could have been more judicious in thier
choice of verb here and not given BSF et al a toe hold to work with and spared
us all a lot of nonsense.
What SCO have done is decided unilaterally to ignore the restrictions placed on
the code by the GPL and tried to treat it as pubic domain material. This is a
line MS were trying to flog at the time and it is a practice that MS have used
in the past most noticably with the BSD code. There is a fundamental difference
between GPLed code and public domain code. This was deliberate and has been the
cause of many flame wars. SCO deliberately chose to try to confound these to
thier own advantage but so far to their own detriment.
Were I replying to this memo I would chose to make this distinction very clear
to the judge. GPL != public domain material. Not that this should need to be
done - but it cant hurt.
With GPL material you either comply or you dont. If you dont comply you are
infringing. End of story.
SCO are trying to claim that their super secret Unix code that someone else
contributed and to which they own the copyrights to somehow gives them rights to
control Linux and that granting them these rights would be in the public
interests. It might well b in SCO's interests but the public's? The public here
includes the jduge hearing the case. How this would be in his personal interest
its made clear. This will be a very tough call.
My guess is this is a last try attemtp by SCO to create something - anything -
to avoid summary judgement. Im just not convinced that it will work.
--
MadScientist[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, January 13 2007 @ 01:51 PM EST |
This is the exhibit SCO refers to as proof of Linus copying Sun code into
linux.
Do we have this somewhere?[ Reply to This | # ]
|
|
|
|
|
