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Eyewitness Reports from Today's SCO v IBM Status Hearing - Updated 4Xs
Wednesday, August 11 2010 @ 07:29 PM EDT

First word has arrived from today's status hearing that SCO requested in SCO v. IBM, but we had more than one reporter there today, so there will be updates later tonight.

SCO in its motion had asked that two of IBM's motions for summary judgment on some of SCO's claims, long on ice because of the SCO bankruptcy, be revived and allowed to go forward so SCO could pursue claims not affected, in SCO's view, by SCO's loss in the SCO v. Novell case. IBM, of course, opposed on several grounds. First, it makes no sense to go forward until SCO's appeal is decided. Second, IBM wasn't crazy about SCO's idea of being allowed to go forward piecemeal, with IBM standing there tied up, so to speak, while SCO gets to kick them in the shins. IBM's position as well is that all SCO's claims are off the table, due to its loss in the Novell case, so unless it wins on appeal, there's nothing to go forward on. What a waste of judicial resources.

Oddly, SCO, as it turned out, at the conference asked to proceed on only one of the motions, #782, IBM's Motion for Summary Judgment on SCO’s Unfair Competition Claim (SCO’s Sixth Cause of Action). Probably they read IBM's memorandum in opposition. Argument was heard, and the judge, the Hon. Tena Campbell, has taken it under advisement.

Our first report, from cpeterson:

SCO is only asking to proceed on #782; I was under the impression they wanted #783 as well.

They say it can be done independent of all other matters.

Short version:

IBM: No, it can't.

SCO: can too.

IBM: can *not*.

Judge Campbell asks how it's efficient to have a separate trial for this issue, and another for everything else.

We don't want a trial on this, says Normand. We just want it resolved.

Judge Campbell has taken the matter under advisement.

More later...

Resolved? SCO doesn't want a trial, just wants it resolved? Resolved how? And then what? I wonder if our reporter misheard. This implies to me that either SCO expects to lose on the motion or it thinks it can win on IBM's summary judgment motion in such a thorough way that no trial will be needed. But what if IBM loses on summary judgment because the judge thinks there are facts in dispute that need to go to trial? Then what? It doesn't want a trial then? Surely it does, so that's why I confess, until we hear more, I'm in the dark about SCO's thinking.

Is Boies Schiller still under the illusion that IBM will settle if SCO is sufficiently annoying? Surely not. Or is it hoping to lose so there are no more loose strings and they don't have to do this any more? I have no idea. It's a big mystery.

So let's wait for more information before drawing any definite conclusions. Just put a marker there, so to speak, and as more information arrives, we'll likely get to understand more. For sure, we'll eventually get the transcripts. But I knew you'd want to hear as soon as I heard anything at all. And the first word that is certain is that the judge didn't rule from the bench but has taken it under advisement. And that, from the question from her, it looks favorable for IBM's argument.

If you'd like to try to parse out SCO's strategy yourself, the two motions that SCO said in its motion could go forward were these two:

6. IBM’s Motion for Summary Judgment on SCO’s Unfair Competition Claim (SCO’s Sixth Cause of Action), dated September 25, 2006, Docket No. 782.

7. IBM’s Motion for Summary Judgment on SCO’s Interference Claims (SCO’s Seventh, Eighth, and Ninth Causes of Action), dated September 25, 2006, Docket No. 783.

Here is #783 [PDF], if you'd like to see what SCO dropped. And here's a chart showing all the documents for the pending summary judgment motions, from both parties.

Here's the meat of SCO's 6th Cause of Action:

183. IBM has engaged in a course of conduct that is intentionally and foreseeably calculated to undermine and/or destroy the economic value of UNIX anywhere and everywhere in the world, and to undermine and/or destroy plaintiff’s rights to fully exploit and benefit from its ownership rights in and to UNIX System V Technology, the Unix Software Code, SCO OpenServer, UnixWare and their derivatives, and thereby seize the value of UNIX System V Technology, the Unix Software Code, SCO OpenServer, UnixWare and their derivatives directly for its own benefit and indirectly for the benefit of its Linux distribution partners. 184. In furtherance of its scheme of unfair competition, IBM has engaged in the following conduct:
a) Misappropriation of source code, methods, trade secrets and confidential information of plaintiff;

b) Breach of contract;

c)Violation of confidentiality provisions running to the benefit of plaintiff;

d) Inducing and encouraging others to violate confidentiality provisions;

e)Contribution of protected source code and methods for incorporation into one or more Linux software releases, intended for transfer of ownership to the general public;

f) Use of deceptive means and practices in dealing with plaintiff with respect to its software development efforts; and

g) Other methods of unlawful and/or unfair competition.

And here's part of IBM's response:

17. SCO's claim that this case should proceed now as to SCO's unfair competition and tortious inference claims turns on the proposition that those claims do not depend on the outcome of the appeal in the Novell Litigation. That is wrong. Not only do those claims depend on the outcome of SCO's appeal, but also they are precluded if Judge Stewart's judgment is affirmed.

18. SCO's unfair competition claim (Count VI) is a mix of SCO's other causes of action, including the breach of contract and copyright infringement claims that SCO concedes are dependent on the outcome of the Novell Litigation. For example, SCO's unfair competition claim accuses IBM of misappropriating source code, breaching contracts and contributing source code to Linux. The code at issue on those claims is covered by the

copyrights Judge Stewart ruled are owned by Novell (not SCO), and Judge Stewart found Novell had the right to waive the alleged breaches of contract. Thus, SCO's unfair competition claim necessarily depends on the outcome of the Novell Litigation.

19. SCO's unfair competition claim would depend on the outcome of the Novell Litigation even if the claim related solely to "Project Monterey". The crux of SCO's Monterey allegations is that IBM exceeded the scope of its license to certain UNIX SVr4 code (licensed to IBM by The Santa Cruz Operation during Project Monterey) by copying the code into IBM's AIX for POWER product. But SCO has never properly identified any such code that is not covered by copyrights determined in the Novell Litigation to be owned by Novell.1 Thus, if the judgment against SCO in the Novell Litigation is affirmed, SCO's Monterey allegations are untenable. At an absolute minimum, the outcome of the Novell Litigation will affect the shape of SCO's Monterey allegations.

And speaking of mysteries, here's the latest docket entry from the Supreme Court docket on Novell's petition for writ of certiorari:
Aug 11 2010 Motion to dismiss the petition for a writ of certiorari pursuant to Rule 46 received.
If any of you are in the Washington, DC area and would be willing to go in person to the US Supreme Court to pick up what is presumably a SCO filing, can you please email me and I'll let you know what is involved? A motion to dismiss before the court has decided whether or not to hear the case. Hmm. Here's Rule 46 of the US Supreme Court rules:
Rule 46. Dismissing Cases

* 1. At any stage of the proceedings, whenever all parties file with the Clerk an agreement in writing that a case be dismissed, specifying the terms for payment of costs, and pay to the Clerk any fees then due, the Clerk, without further reference to the Court, will enter an order of dismissal.

* 2. (a) A petitioner or appellant may file a motion to dismiss the case, with proof of service as required by Rule 29, tendering to the Clerk any fees due and costs payable. No more than 15 days after service thereof, an adverse party may file an objection, limited to the amount of damages and costs in this Court alleged to be payable or to showing that the moving party does not represent all petitioners or appellants. The Clerk will not file any objection not so limited.

(b) When the objection asserts that the moving party does not represent all the petitioners or appellants, the party moving for dismissal may file a reply within 10 days, after which time the matter will be submitted to the Court for its determination.

(c) If no objection is filed—or if upon objection going only to the amount of damages and costs in this Court, the party moving for dismissal tenders the additional damages and costs in full within 10 days of the demand therefor—the Clerk, without further reference to the Court, will enter an order of dismissal. If, after objection as to the amount of damages and costs in this Court, the moving party does not respond by a tender within 10 days, the Clerk will report the matter to the Court for its determination.

* 3. No mandate or other process will issue on a dismissal under this Rule without an order of the Court.

Update: Chris Brown has now filed his report on the day's events from the courtroom:
Judge Tena Campbell in her first appearance in these cases gave the impression she has a lot of homework still ahead of her on the case history.

IBM was represented by David Marriott and Todd Shaughnessy and for SCO were Ted Normand, Brent Hatch, and Ryan Tibbitts.

SCO's Ted Normand went first reminding Judge Campbell that SCO is in bankruptcy which obligates them to pursue claims. He said SCO was willing to let the claims in this case sit during the Novell case. However, he relates, SCO's trustee Judge Cahn asked what assets the company has available and one answer is these claims against IBM, particularly the "Monterey" claim. He says the burden is on IBM to show why not to resolve the claims. He states that the Project Monterrey claim is distinct from the copyright ownership issue currently on appeal to the 10th circuit, that it is not dependent on copyright ownership because the source code at issue in this claim is different from the source code copyrights on appeal. He says that for Project Monterey, IBM wanted its hands on post-1995 code, the newest and latest code, as opposed to the pre-1995 code which is on appeal.

Judge Campbell asks for clarification on which claim he's referring to -- it's SCO's 6th claim, the Unfair Competition, claim.

Mr. Normand says that SCO is not asking for a trial on this claim. On a questioning look from the Judge, Brent Hatch interjects that they mean they are not asking for a trial date right now, but they wish to eventually go to trial on it.

When asked by the Judge if the remaining claims SCO cited in its motion will be affected by the result of the appeal, Mr. Normand says they would be.

Then IBM's David Marriott responds saying that this case is about an attempt by SCO to take control of the Linux operating system, that SCO claims IBM took code from Unix and dumped it into Linux. Mr. Marriott says that after the combination of the trial jury and Judge Stewart both ruling in favor of Novell, all of SCO's claims against IBM are effectively forestalled and additionally the rulings are in favor of IBM on some of it's counterclaims.

Mr. Marriott says this is a complex case of 19 claims & counterclaims, tens of millions of pages of discovery (bringing a surprised expression to the Judge), and scores of witnesses deposed. He claims that to attempt to separate all the interwoven, interdependent, claims in this case would be time-consuming and a waste of judicial resources. He describes Judge Kimball's ruling, the appeal, and said that after the jury and Judge Stewart ruled, we are now back to where we were following Judge Kimball's ruling.

Mr. Marriott says there's no such claim as the "Monterey Claim." There's a claim for Unfair Competition but that it's a multi-faceted claim. He reads the various components of SCO's Unfair Competition claim, letter 'a', 'b', etc down to 'f.' This individual item 'f' is the one he presumes SCO is referring to as the "Monterey Claim." He states that the other items in the list (going up to 'g') were waived by Novell. That the one item cannot be extracted from the whole claim as those are on appeal. Mr. Marriott asks that this court wait for the 10th Circuit to rule and then come back here.

SCO's Mr. Normand responds saying that is mixing up terms (I missed which terms).

Judge Campbell asks about why SCO's not asking for a trial on that motion. Mr. Normand responds that they are just not asking for a trial date. He states that mathematically we'll get the 10th Circuit ruling before then.

Mr. Marriott responds. He says all needs to be decided, but not now. He reads from SCO's status update to Judge Kimball in this case following Judge Kimball's ruling in the Novell case, where SCO asked Judge Kimball not to proceed on these claims because they are all dependent on these other non-Monterey issues (then on appeal).

Mr. Normand said that IBM filed the motion regarding the Project Monterey part of SCO's claim, but that SCO believes it can move forward. He repeats that SCO's trustee, Judge Cahn, has looked at the company's assets/claims and addressed the likelihood of success and wants to move forward.

Judge Campbell said she will take it under advisement.

I see Judge Campbell noticed SCO saying it didn't want a trial as being as significantly odd as I did. I'd call that a blooper on SCO's part. And the other interesting part is where SCO says that bankruptcy obligates SCO to pursue all claims.

Not the frivolous ones, presumably. And not this exact minute.

Update 2: And now we have a second report from cpeterson, with more details:

Chris & I got to the courtroom just seconds ahead of Todd Shaughnessy & David Marriott. Sterling Brennan was already in the courtroom, seated in the gallery as an observer. Very shortly after we entered, Brent Hatch and Ryan Tibbitts came in. A couple of minutes later, Ted Normand.

That fills the roster for today's counsel. It also almost filled the available seating: Judge Campbell's courtroom, on the second floor, doesn't have as much space as Judge Stewart's. It has a very high ceiling, but only space for 3 seats each at the tables for defendant and plaintiff, and six box-style benches in the gallery that would seat about 4 persons each.

Judge Campbell is a petite lady, delicate featured, mostly but not entirely silver-haired.

In my earlier report, I said that Mr. Normand said, "We don't want a trial on this," says Mr. Normand."We just want it resolved." PJ commented, "I wonder if our reporter misheard." Well, *I* wondered if I had misheard. The more Mr. Normand explained, the more confused I got. Mr. Hatch's explanation was more straight-forward -- that they aren't asking for a trial date right now, but will later. Except, as Mr. Normand proceeded to then say, the appeal will proceed rapidly, and we'll find out what else can be tried, and there won't need to be a separate trial because the appeal will clear things up before we get to the point of a trial.

So why do this separately, thinks I, if it's fated to all end up at the same trial anyway? That was never clearly answered. It *was* clearly asked.

After the hearing, Mr. Tibbitts called out to Chris and me in the hallway to "be sure to report it accurately!" Well, this much I can report as being beyond any shadow of doubt: I was confused by Mr. Normand's pitch. I strongly believe, judging by the Judge's demeanor, that she was also.

Well, I hate to say it, but the most logical explanation is that Mr. Normand told the simple truth, but then realized by the judge's expression it wasn't an optimal revelation, and Mr. Hatch attempted to fix it with something that makes little sense. SCO's motion asked to go forward on its claims. If you are not interested in doing that yet, why ask? And as for not asking for a trial *date* yet, that makes no sense, because SCO can't ask for a trial date on IBM's motion for summary judgment, or on any summary judgment motion, and in fact no one can, because there isn't anything like that for a SJ motion. And the motion isn't yet ruled on, which is the only possible next step, prior to any trial. So there is no way I accept that this is what was meant. SCO is asking the new judge to rule on this motion, which is fully briefed and which already had oral argument. So the thing is just awkward.

And to Mr. Tibbitts, feel free to email me any report you wish to make on the day's events, or leave it as a comment on this story.

Update 3: I just realized what this is probably all about. SCO wants to go forward against IBM, using the 2004 Utah law Ralph Yarro pushed, which I've dubbed Yarro's Law. Here's an article from 2007 about IBM's redacted reply memorandum in support of its motion for summary judgment on SCO's Sixth Cause of Action, unfair competition. It will help any newcomers to understand what Yarro's Law is, and how SCO wants to use it. Of all the underhanded tricks we've had to watch in this saga, to me that was the worst of them all, getting a law passed that seems written just for SCO to use against IBM, and then actually trying to use it retroactively for actions that occurred years before the law was passed. If Cahn is desirous of going forward like this, shame. Really. Shame.

It occurs to me that to understand what Marriott said about f. being the only part referring to Project Monterey, it would also help to reread SCO's memorandum opposing IBM's motion. SCO does go on and on about Project Monterey.

And to further help you to figure out what percentage, if any, of what SCO writes in that memo is true, you should probably reread our collection of articles on Project Monterey. We actually have a page listing every article that even mentioned it from 2003-2009. But here's a short list of the ones that I think are most significant:

Update 4: We have the minutes from the status conference from the court:

08/12/2010 - 1092 - Minute Entry for proceedings held before Judge Tena Campbell: Status Conference held on 8/12/2010. Mr. Normand states there are 12 pending motions, but requests defendant's motion for summary judgment (docket #782) be decided first. The court hears from Mr. Marriott who believes motions should be decided as a whole. The court takes this matter under advisement. Attorney for Plaintiff: Brent Hatch, Esq; Ted Normand, Esq., Attorney for Defendant: Todd Shaughnessy, Esq; David R. Marriott, Esq. Court Reporter: Ray Fenlon. (tab) (Entered: 08/12/2010)

Aren't you glad we had reporters there? If they had not attended, this would be all we'd know for 90 days. So thank you from the heart to Chris and cpeterson. We really appreciate your help.


Eyewitness Reports from Today's SCO v IBM Status Hearing - Updated 4Xs | 319 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: bprice on Wednesday, August 11 2010 @ 07:36 PM EDT
Should any be needed.

--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Off Topic
Authored by: bprice on Wednesday, August 11 2010 @ 07:37 PM EDT
On-topic stuff goes everywhere else.

--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Everything COMES Here
Authored by: bprice on Wednesday, August 11 2010 @ 07:38 PM EDT
Thank you for participating.

--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

News Picks Discussion
Authored by: bprice on Wednesday, August 11 2010 @ 07:39 PM EDT
Remember to link to the news pick you're discussing.

--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

Motion to dismiss the petition for a writ of certiorari
Authored by: Henning Makholm on Wednesday, August 11 2010 @ 07:53 PM EDT
SCO is not allowed to file such a motion:
No motion by a respondent to dismiss a petition for a writ of certiorari may be filed. Any objections to the jurisdiction of the Court to grant a petition for a writ of certiorari shall be included in the brief in opposition.
S.Ct.Rule 15.4. The cited rule 46.2(a) only allows the motion to come from "petitioner" (Novell) or "appellant" (none in this case, because review is discretionary). So either SCO has reached new record levels of disregard for court rules (which is somewhat conceivable), or Novell have changed their mind and don't want Supreme Court review after all (which sounds stranger than strange).

[ Reply to This | # ]

Wild Guess - Sure To Be Wrong
Authored by: sk43 on Wednesday, August 11 2010 @ 08:26 PM EDT

"We don't want a trial on this," says Normand. "We just want it

Assuming that the quote is accurate, we can ask: What is SCO's angle? SCO's
Claim Six, Unfair Competition, which is the target of IBM's SJ Motion #782, is
the sole surviving claim after the SCO/Novell Jury trial for which SCO has asked
for specific monetary damages, in this case for $1 BILLION. Perhaps SCO has the
idea that, if it can defeat the SJ motion, it is in a better position to
leverage a favorable settlement with IBM.

Methinks Judge Cahn sees the writing on the wall ...

[ Reply to This | # ]

They aren't thinking at SCO and never have
Authored by: kawabago on Wednesday, August 11 2010 @ 08:34 PM EDT
No sane thinking person would launch a business on this path to destruction. A
thinking person wouldn't sue over copyrights she doesn't have. Pretty much every
step of the way SCO has chosen a course that no thinking person would choose.

A clueless crew of twits asea with no rudder, that is SCO.

[ Reply to This | # ]

Authored by: _Arthur on Wednesday, August 11 2010 @ 09:04 PM EDT
Pity Nazgul lawyers didn't bring on the topic of the Novell Arbitrations.
Some SCO v Novell claims that are currently stalled in Arbitration could
have an impact on SCO fuzzy Monterey claims.

SCO seems to be in no hurry to pursue *those* [Switzerland) claims.

[ Reply to This | # ]

Thank you reporters!
Authored by: WhiteFang on Wednesday, August 11 2010 @ 09:06 PM EDT
I suspect the new Judge wasn't impressed.

And thanks again for being there for all of us!

"The so-called protection offered by DRM operates only at the
distribution end of the chain. It doesn't help artists eat better." Anonymous

[ Reply to This | # ]

SCO introduces itself to Judge Campbell -- and to the Supreme Court
Authored by: Anonymous on Wednesday, August 11 2010 @ 09:12 PM EDT
Excellent first impression by SCO to Judge Campbell, getting a "say
what?" from her in the first 5 minutes?

Then filing a motion to dismiss Novell's appeal with the Supreme Court that it
seems they are not allowed to file under the rules.

I've decided that SCO is throwing mud on itself in the hope that some of it will
stick to its opponents, thereby gaining some sort of weird equivalence.

Way to go guys, You're the best.


Dilbert IS reality

[ Reply to This | # ]

time to loose the Nazgul
Authored by: nola on Wednesday, August 11 2010 @ 09:25 PM EDT
I don't know if SCO really appreciates what
they're doing here.

It could blow up very badly for them if IBM goes
to BK court to petition ALL claims be available
for resolution. The asymmetry of SCO's position
should be troubling to any Court.

[ Reply to This | # ]

Regarding the Rule 46 motion
Authored by: tknarr on Wednesday, August 11 2010 @ 09:40 PM EDT

Is it possible that this is a Novell filing? They may be looking at it as they've won on the copyright issue, and if their SC appeal is being (or could be) used by SCO to hold things up they may be simply taking it off the table (I believe they can probably file it later if it turns out they need to in response to an adverse ruling down the road).

[ Reply to This | # ]

they don't really want it "resolved"
Authored by: Anonymous on Wednesday, August 11 2010 @ 10:19 PM EDT
It is entirely within tSCOg's power to resolve the claims, right now. They could
withdraw them, and less than 24 hours later they would be resolved.

But you know durn well they won't.

[ Reply to This | # ]

SCO fires the footgun and it hurts
Authored by: vb on Wednesday, August 11 2010 @ 10:50 PM EDT
"SCO's status update to Judge Kimball ... where SCO asked Judge Kimball not
to proceed on these claims because they are all dependent on these other
non-Monterey issues"

BANG - my foot - Ouch!

The proceedings should have ended right there. SCO deserves to be sent to their
room with no supper.

[ Reply to This | # ]

Authored by: Anonymous on Wednesday, August 11 2010 @ 10:51 PM EDT
"He reads from SCO's status update to Judge Kimball in this case following
Judge Kimball's ruling in the Novell case, where SCO asked Judge Kimball not to
proceed on these claims because they are all dependent on these other
non-Monterey issues (then on appeal)."

It's always awesome to watch SCO yet again argue directly against their own
previously held position and try to keep your head from exploding. What fun!

[ Reply to This | # ]

Infringing Monty Python's intellectual property
Authored by: Anonymous on Wednesday, August 11 2010 @ 10:55 PM EDT
If SCO wants us to respect its IP, it should respect others'. In re methods and
concepts and non-literal copying, today's hearing is clearly infringatorial.

[ Reply to This | # ]

My wild guess
Authored by: Anonymous on Wednesday, August 11 2010 @ 11:49 PM EDT
My wild guess is that SCO is trying to resurrect and recast its motion on unfair competition to deal purely with post-1995 or Monterey project code; i.e., code not covered by the Novell trial.

Push Judge Campbell for a quick trial hoping to confuse her with the usual smoke and mirrors, hope and pray for a favorable verdict and a very hefty fine against IBM.

It's all about the money.

[ Reply to This | # ]

Two Theories
Authored by: cassini2006 on Thursday, August 12 2010 @ 12:01 AM EDT

I only really have two theories to explain this performance in court:
a) SCO has forgotten that the Project Monterey failure cost IBM a great deal of money. The project never created any value worth stealing.
b) SCO is trying to prove that they are worthless, only they can't say that in court.

Imagine if SCO wrote the following:

"Dear Judge, we understand the Novell ruling will toss all claims except the Project Monterey claim. If you toss the Project Monterey claim right now, then it is all over for us. We can report this in bankruptcy court, and all will be over. Thanks SCO."
If SCO ever said anything like this in court, then most judges would summarily dismiss the case to be helpful.

[ Reply to This | # ]

  • Two Theories - Authored by: Wol on Thursday, August 12 2010 @ 06:46 AM EDT
Be sure to report it accurately?
Authored by: Anonymous on Thursday, August 12 2010 @ 12:36 AM EDT
That's... interesting.

I've heard that kind of line from one of Darl's hangers-on. So has Chris (at
least). But hearing it from Tibbitts is a bit different. What's going on

1. Is the reality distortion within SCO so bad that they think that what we're
reporting isn't accurate? Do they think that the transcripts reflect something
different than Chris's and cpeterson's reports do? Or do they believe that the
trascripts are also inaccurate? (Poor SCO, the whole universe is in on a
conspiracy against them...)

2. Do they think that Groklaw has so much influence that what we report is
actually influencing the trial? That seems rather paranoid.

3. Do they think that Groklaw is influencing (even controlling) public opinion,
and this is still a public opinion game? That ship has sailed, I think. And I
think that Groklaw was very influential in preventing the public from buying
what SCO was selling. But does Tibbetts really hope to revive the days of the
public trembling from the FUD? Really? That seems unduly optimistic for a

Why would Tibbitts say that? The only reasonable explanation I can imagine is
that he has heard from others (probably Darl's crew) that Groklaw publishes
highly biased accounts, and he (Tibbitts) has never checked to see whether that
is true.

And the funny thing is, we're actually trying to do exactly what he said. We're
trying to report it accurately. I know that I attended a hearing, and was told
to try to get the report right, because Chris was so biased, and I tried to do
exactly that, to accurately report what happened, and my report did not
materially differ from Chris's report. (Probably the same with cpeterson, but I
remember more specifically with Chris.) So it sure looked to me like he was
trying for accuracy, too. And, this being Groklaw, that's what we do - we try
for accuracy in the facts, and honest assessment of them.


[ Reply to This | # ]

Question for PJ
Authored by: Anonymous on Thursday, August 12 2010 @ 12:40 AM EDT
Can Tibbitts really do that? Post an account of the hearing on a blog? For a
case that he's involved in?

First, can he legally do that? Second, can he prudently do that?


[ Reply to This | # ]

Eyewitness Reports from Today's SCO v IBM Status Hearing - Updated 3Xs
Authored by: eric76 on Thursday, August 12 2010 @ 02:29 AM EDT

From the link to Yarro's Law:

(2) A person may not bring an action described in Subsection (1) against:
   (a) a depository institution; or
   (b) an entity that:
      (i) controls a depository institution;
      (ii) is controlled by an entity that controls a depository institution; or
      (iii) is controlled by a depository institution.

So if IBM controls a depository institution, then it would be exempt from this law?

What if IBM were to go to some small town anywhere in the country and buy a small town bank? That could be relatively inexpensive these days.

[ Reply to This | # ]

IBM claims that Caldera/SCO has no standing
Authored by: Anonymous on Thursday, August 12 2010 @ 04:01 AM EDT
32. IBM declined to consent to the assignment of Santa Cruz's rights and obligations under the JDA. Pursuant to Section 22.12 of the JDA, IBM's consent was necessary for such assignment to take effect. On the contrary, IBM invoked its right to cancel the JDA under Section 15.2 in a letter dated June 19, 2001. (Ex. 220.)


Second, SCO was never party to and does not have standing to assert a claim related to a breach of the Monterey JDA. (See Section II.B.)

This seems to be an extremely valid argument. This issue hasn't been settled, has it? If not, SCO had better be careful about the can of worms it's about to re-open.

Maybe, as some suggest, this is what Cahn wants settled. Perhaps (and this is a big assumption) it is an effort to demonstrate how ill-conceived these lawsuits were.

[ Reply to This | # ]

Eyewitness Reports from Today's SCO v IBM Status Hearing - Updated 3Xs
Authored by: mpellatt on Thursday, August 12 2010 @ 04:06 AM EDT
(Normand) repeats that SCO's trustee, Judge Cahn, has looked at the company's assets/claims and addressed the likelihood of success and wants to move forward.

Oh dear. That was a coffee over the keyboard moment. Like he accurately addressed the likelihood of success in SCO vs Novell ?

[ Reply to This | # ]

Ian Al posts overlength, irrelevant sur-reply.
Authored by: Ian Al on Thursday, August 12 2010 @ 06:02 AM EDT
Because IBM got their argument wrong... OK, I see that might weaken my reply.
Because SCOG's argument is clearly about Monterey... OK, that doesn't help,

OK, I don't care what you think: I think this is about Unix on IA64 and PPC
processors. The Monterey project depended on Novell's copyrights, but both Santa
Cruz and IBM had licences to use those copyright materials to do the project
work. Please note, this was well before SCOG revoked IBM's perpetual,
irrevocable licence and after Novell waived the revocation in case they lost the
revenue for awarding the licence in the first place. In July 2005, SCOG were
refused permission to add the PPC issues to their claim.

The 6th Cause of Action was included in the 2nd Amended Complaint and is printed
above. I think that both a) and f) can be associated with the Monterey project,
although a) also relates to other claims affected by the Novell decisions.

The rest of the post is given in a child response because I have padded it out
with so much copied stuff to aggrandize my post.

Ian Al
SCOG, what ever happened to them? Whatever, it was less than they deserve.

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At the Point of a Drawn Sword
Authored by: DaveJakeman on Thursday, August 12 2010 @ 06:16 AM EDT
Right up front, BSF make it plain to the judge they are going through the motions on this, not because they want to, but because they have to. That Mr Kahn, oh how he whips us...

Could BSF's poor performance at the hearing have been accidentally-on-purpose? Haven't they pulled this trick before with a messed up subpoena? What are BSF really trying to do here? Does this calibre of lawyer really make a mistake like that? I'm thinking the hearing transcript will read like something from a Monty Python sketch, but the quickly-cover-up-for-my-colleague's-goof act wasn't intended as humour. Something is afoot other than the footgun.

Well, this much I can report as being beyond any shadow of doubt: I was confused by Mr. Normand's pitch. I strongly believe, judging by the Judge's demeanor, that she was also.
Welcome, Judge Tena Campbell, to SCO's Reality Distortion Field. Please make yourself at home down this comfy rabbit hole. You'll be spending quite some time down here with the rest of us.


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Yarro's Law
Authored by: Anonymous on Thursday, August 12 2010 @ 08:29 AM EDT
Now we know from the article PJ has referenced that "Yarro's
Law" is not applicable retroactively.

Here's an idea from SCO world:

Maybe they should get some people who drafted that law and
those who voted on it to testify that the wording of the law
doesn't quite contain what these people meant it to contain.

See, similar to their trying to get the APA(s) re-
interpreted by extrinsic evidence, why not try the same
thing with a law?
After all, this time they have the "maker" of that law
(Yarro) on their side. If there's anyone to testify to the
*real intent* of the law, that should be him.
So if he testifies that "not retroactive" really meant
"retroactive", SCO should be good to go with applying
Yarro's Law to the IBM case. :-)

Wouldn't that just turn the Kafkaesque litigation into
complete looneyness? ;)


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Eyewitness Reports from Today's SCO v IBM Status Hearing - Updated 3Xs
Authored by: Anonymous on Thursday, August 12 2010 @ 08:53 AM EDT
I think SCO is trying to get a valuation of it's SCO v IBM cases. So that it can
get a new investors or a new loan or to keep an auction of the cases.


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What are they asking for, really?
Authored by: jpvlsmv on Thursday, August 12 2010 @ 09:34 AM EDT
It seems like they are only asking that the motion practice on these PSJ motions
be completed and ruled on.

The are in the unfortunate (but self-imposed) position where if their best
claims are dismissed by IBM's motion for summary judgment, the value of the
litigation to the estate drops from a lottery ticket to a really big parking

In an ideal bankruptcy (which this is not) this would be a critical part of
inventorying the estate, before a realistic business plan could be created. In
this bankruptcy, I'd say the process has been more of "keep the litigation
going, drop all the old business, and stall stall stall to drain the estate with
professional services"


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Wouldn't a new judge require repeated oral arguments?
Authored by: Anonymous on Thursday, August 12 2010 @ 10:28 AM EDT
The motion is fully briefed including oral arguments. However, those were made
in front of a different judge. I understand that the new judge can read through
all the documentation, motion practice and the transcript of the oral arguments.
But the logical reason for the oral argument is to allow a discussion, where the
judge can ask questions and the lawyers can clarify the points which were not
clear from the written motions. So after the oral arguments, the judge *who
heard them* has a clear understanding of the point of view of both sides. But a
different judge may have different questions, right ? It may not be so clear to

So I do not understand how it is expected from a new judge to pick up a complex
case in the middle after many motions have been filed, briefed and start issuing
ruling without repeating at least some oral arguments.

Of course, IANAL and I don't even live in the US, so I have a total lack of
understanding of the system. It just doesn't make sense to me. Please, somebody


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Yarro's law ...
Authored by: nsomos on Thursday, August 12 2010 @ 10:42 AM EDT
I can believe SCOG does not want a trial ... they just
want to win, summary judgment preferably.

If indeed this is about Yarro's law, as PJ has previously
pointed out, there are many hurdles that stand in SCOG's way.

I recall having read about "Bill of Attainder" previously
here at Groklaw, and plugged that into the search box
and refreshed my memory.

The Constitution of the United States, Article I,
Section 9, paragraph 3 provides that:
"No Bill of Attainder or ex post facto Law will be passed."

US Constitution, Article I, Section 10.
Powers Prohibited of States, No State shall enter into any
Treaty, Alliance, or Confederation; grant Letters of Marque
and Reprisal; coin Money; emit Bills of Credit; make any
Thing but gold and silver Coin a Tender in Payment of debts;
pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title
of Nobility.

I suppose one could argue that the law is not in and of
itself "ex post facto", but then again, if your only
application of it is retroactive, that part at least is
"ex post facto".

As far as I can tell, PJ has covered all other defenses
that IBM has to this claim of SCO, and IBM certainly has
many defenses. How could Cahn ever have imagined that
SCO could prevail on ANY of their claims?

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tens of millions of pages of discovery
Authored by: Anonymous on Thursday, August 12 2010 @ 01:22 PM EDT
"Just shoot me now," said the judge.

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"What assets are there?"
Authored by: Anonymous on Thursday, August 12 2010 @ 01:51 PM EDT
Kahn can only sell the right to continue the fight if it's possible to separate
it. If it can't be separated then it will be too late to sell, and too expensive
to fight. If he can separate it from the other claims, without having a date for
trial, then it's an asset. IMO the trial date isn't crucial, but an option
without a maturation date is quite a bit nicer than one with a maturation date.

And the ability to fight while your opponent has one hand tied is an asset too.

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RE Monterey - tSCOg march to the beat of a different drum
Authored by: dmarker on Thursday, August 12 2010 @ 08:37 PM EDT


but the only purposeful drum that comes to mind is the one they play at a gallows event.

When one looks at the known facts re the Monterey project & the categorical barefaced lying (I,m trying to be kind) that tSCOg has done via their execs & lawyers BS&F, one has to wonder how any judge can keep a straight face when reviewing the 'evidence'.

As mentioned before here I was IBM's rep (but not employed by IBM at that particular time) on Caldera's stand at the San Jose 1999 LinuxWorld, demonstrating Caldera OL Linux running on IBM Netfinity (intel) servers with IBM's core WebSphere & DB2 & Java products all ported to Caldera OL with Caldera working with us to achieve it.

At the show & on the Caldera stand self was wearing wearing IBM's Linuxworld uniform & Ransome Love & the other Caldera execs all came by at different times during the show. It was a major showcase event for them as they were gearing up for Caldera's IPO.

We worked with Caldera while at Cary NC preparing demos for an IBM redbook (july-aug 1999) & the work we did was deemed so successful it was transported to Linuxworld & the project extended. The other distros we ported IBM products to were Redhat 6 Suse Linux & Turbo LInux. Each was chosen because they targeted a unique market opportunity. Redhat was servers, Caldera was Desktop, TurboLinux was desktop & servers in Asia, Suse was servers in Europe.

Caldera knew damned well how committed IBM was to Linux because they were part of it. All this occurred before they bought Santa Cruz OP (& thus Monterey) & I am in little doubt that the 1999 Linuxworld event strengthened or perhaps even created the notion that taking on Santa Cruz Op Unix would help boost their role in the emerging Linux opportunity. Caldera called themselves a Linux company.

The reason self was even there in 1999 (was at that time an IBM business partner) was because I had become convinced that Linux was on a roll & when in early 1999 IBM had called for worldwide volunteers to participate in building their Linux involvement I wanted to be part of it as I knew that meant they were very serious. Irving Wladawsky-Berger at IBM was to make his famous Linux commitment in late 2000 which merely formalized what we all knew as was evident in Linuxworld events in 1999 & 2000.

IBM makes billion $ commitment to Linux

The buzz surrounding IBM's support for Caldera OL at the 1999 San Jose Linuxworld was a common talking point among the Caldera people at the show. I was there every day as the reminder.

I just cannot believe that after that event any self respecting exec from Caldera (tSCOg) or from BS&F could look a judge in the eye & claim that in 2001 IBM blind-sided either Caldera or Santa Cruz with their commitment to Linux. Anyone who attended LinuxWorld in N Y in 2000 and saw IBM there with a large 370 mainframe running Linux, would have had IBM's commitment completely reinforced.

My guess is that the new execs who took over from Ransom Love, thought they could blindside the courts by claiming they (as people) had no knowledge of IBM's Linux commitments in 1999 & 2000 (which they may not have because they just weren't part of it all even if Santa Cruz & Caldera as companies were) and that they only knew in Dec 2000 when IBM formalized what had been happening in 1999 & 2000.

But tSCOg isn't Santa Cruz Op & the contract clearly stated that any change of control of Santa Cruz Op voided the contract. The failure of the Itanium to come to market on time & with any reasonable performance was a separate matter.

BS&F as tSCOg's lawyers, are downright devious to put it mildly as they clearly understand the deception they are pushing for tSCOg.



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