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Comments: 139 +-   SCO Asks Court To Reconsider IBM's Dismissal on Saturday December 23 2006, @10:39AM

Posted by CowboyNeal on Saturday December 23 2006, @10:39AM
from the not-so-fast dept.
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VE3OGG writes "The SCO Group — the litigation firm currently in dispute with, among many, IBM, over supposed copyright infringing code in Unix — has quietly asked the courts to reconsider IBM's request to toss the case out. SCO argued that the court's November decision was procedurally and substantially flawed and they say 'the rules of procedure do not support such a result under the circumstances of this case.' If allowed to reopen the case, the SCO Group argues, that new evidence would present itself through the deposition of several IBM programmers who had previously been interviewed."
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SCO Asks Court To Reconsider IBM's Dismissal 50 Comments More /

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  • Rats (Score:5, Funny)

    by Pedrito (94783) on Saturday December 23 2006, @10:43AM (#17348134) Homepage
    When I was in high school, a rat got into the house. My cousin, a neighbor and I had it pinned behind a piece of furniture. I was beating it from above with a broom handle, my neighbor was wacking it from underneath with a shovel and my cousin was hitting it from the side with something else. I thought the damn thing would never die. SCO reminds me of that rat.

    • Re:Rats (Score:5, Funny)

      by numbski (515011) * <(ten.revliskh) (ta) (iksbmun)> on Saturday December 23 2006, @10:51AM (#17348180) Homepage Journal
      I've learned something about trapping small animals.

      My wife's cat (ie, she had the cat for the better part of 5 years before we got married) doesn't like me all that much. She would take the cat with us when we'd visit her parents' house, and in her old bedroom she had a queen-sized waterbed, where the headboard is suspended, leaving a little "tunnel" behind the bedframe and underneath the headboard.

      The cat decided that when it was time to leave, it wasn't time to leave, and got under there, dead center out of reach. Now, in having raised cats prior, I taught them early on that I was the parent, and would pick them up by the scruff of the neck to let them know who was boss. This cat didn't know that game. I quickly grabbed her by the back of the neck and pulled her out....only for her to empty her bowel and bladder on me. There have been a few more times since I've had to do this, and the result is the same.

      Point is, you may win in the end, but don't underestimate their ability to claw, scratch, kick, scream, and lastly, crap and pee all over you on the way out. :P
      • Next time try something else, like starting a vacuum and move it towards the bed, or if it doesn't have a problem with that, try squirting lemon or oranges towards it. Both assuming the cat has two ways out - if it's cornered doing stuff like that is just plain cruel.
        • I'm partial to the can of air trick when my cats try to hide under the bed...dual purpose use in my house here. Venting computer innards and flushing out a cat hidden somewhere I can't get to :-D

        • Re:Rats (Score:4, Funny)

          by cmacb (547347) on Saturday December 23 2006, @03:50PM (#17349570) Homepage Journal
          "Next time try something else, like starting a vacuum and move it towards the bed, or if it doesn't have a problem with that, try squirting lemon or oranges towards it. Both assuming the cat has two ways out - if it's cornered doing stuff like that is just plain cruel."

          I doubt the vacuum cleaner trick will have any effect on the SCO lawyers. But I bet the judge might be desperate enough now to try that lemon in the eye thing. As to cruelty, the only ones who suffer in the end are users who have to pay for it one way or another in higher software costs, slower development cycles and wasted hours reading of the latest antics here and there and everywhere. I guess if cruelty to the lawyers WERE to become an issue the best thing would be to just shoot them.

          It would be a start.

      • ...and lastly, crap and pee all over you on the way out.

        I wouldn't put it past Darl, but I suspect at this point the IBM lawyers are already protected by hip waders from the previous round of SCO BS.

      • I quickly grabbed her by the back of the neck and pulled her out....only for her to empty her bowel and bladder on me. There have been a few more times since I've had to do this, and the result is the same.

        Perhaps she's flashing back to early kittenhood when the mother licks up the kitten's waste.

        Bon Appétit.

    • When I got dogs, I started getting rats (because the dogs wouldn't finish their dry kibbles).

      The first rat I caught and released in the woods.

      The second rat I killed in a very excited adrenaline rushed state with the dogs barking and the rat making incredible leaps to escape but ultimately we were in a closed room.

      The next couple I quickly dispatched.

      Finally, I just started putting out poison up out of reach of the dogs (who really wanted to eat it- my dog looked like a drug addict smelling rat poison).

      They

  • Asking Santa (Score:5, Funny)

    by kitzilla (266382) <paperfrogNO@SPAMgmail.com> on Saturday December 23 2006, @10:44AM (#17348140) Homepage Journal
    SCO is also asking Santa for a big red wagon and a puppy dog.
    • And a pony. Don't forget they want a pony, too.

      If Santa brings them that, they'll own the Kentucky Derby, and will get to charge everyone a $499 "SCOSource Off Track Betting License".
      • I couldn't help it. As I was scrolling up the screen I saw this thread of comments and saw slashdot inviting me to drink for it's firehouse, and though to myself that SCO is asking the Judge to drink from their firehose. :\ ....

  • better late than never, (Score:5, Informative)

    by fotang (606654) on Saturday December 23 2006, @10:46AM (#17348148)
    as news for nerds that is one week old [groklaw.net] is still news...

  • Christmas story all over again.. (Score:5, Funny)

    by iamsure (66666) on Saturday December 23 2006, @10:49AM (#17348168) Homepage
    Kimball Quoted as saying "You'll shoot your case out kid!"

  • Summary is somewhat misleading. (Score:5, Informative)

    by YouHaveSnail (202852) on Saturday December 23 2006, @10:54AM (#17348196)
    According to both the article and Groklaw, it's not so much that Judge Kimball threw out SCO's case as it is that he affirmed Magistrate Judge Wells' order that threw out the claims that SCO couldn't or wouldn't substantiate. That does indeed include most of SCO's claims, but it's not true that the whole case was dismissed. SCO does have a few claims remaining, and IBM has multiple counterclaims. Nevertheless, SCO's goose is completely cooked, and we're now just waiting for IBM to finish them off.

    • Re: (Score:2, Informative)

      by fotang (606654)
      ...he affirmed Magistrate Judge Wells' order that threw out the claims that SCO couldn't or wouldn't substantiate.

      This is quite confusing, but I understand that evidence, not claims, was thrown out. (?)

      • They presented these items as evidence, but when the items were rightly challenged (basically, SCOG didn't supply file, version and line information that the judge ordered of code/methods they accused IBM of misusing), they changed their story (as they are accustomed to) and told the judge the items were claims.

        If you take a good look at SCOG's filings, you can see that they cherry-pick those parts of the evidence and declarations that seem to support their claim, often quoting incomplete paragraphs of cont

      • Re:Summary is somewhat misleading. (Score:5, Interesting)

        by Samari711 (521187) on Saturday December 23 2006, @11:21AM (#17348328)
        That is correct. SCO's argument is that because that's the only evidence that they have to support those claims, the court is effectively throwing out the claims because they're throwing out the evidence. They ignore the fact that the "millions of lines of infringing" code never materialized, that the evidence they did disclose by the deadline was incomplete by the standards they were holding IBM to and the standards the court specified, and that they later tried to slip evidence in expert reports after fact discovery was closed so IBM couldn't do anything about that evidence.

        Since /. is so slow on this, it should be noted that Judge Kimball rejected the request on a technicality that they filed as a request what should be a motion. Armchair analysis seems to indicate that the rejection might be his way of saying "You really don't want to do this" to SCO. This request basically calls the judge a liar or too incompetent to understand what a de novo review is. It's like SCO is trying to get found in contempt...

          • Re:Summary is somewhat misleading. (Score:4, Informative)

            by fishbowl (7759) <nethack.cox@net> on Sunday December 24 2006, @12:30AM (#17351744)

            >Why does the concept of contempt still exist in today's court system?
            >Can't judges rule on what is before them and put aside their emotions?

            A contempt of court citation is not based on emotions. Contempt of court
            has to do with a party's disobedience of a court order or certain well-defined types of misconduct that interfere with the legal process. Such rules carry the force of law, and a contempt of court citation is, depending on the specific case, a claim of civil damage or a criminal accusation made by the court against an individual.

            Courts have an inherent power to punish persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings. The basis for this doctrine dates back as far as any of the founding principles of English Common Law.
    • Not only did he affirm Magistrate Judge Wells' order, he did a de novo review* of that decision as SCO requested and still ruled against them.

      *de novo - Anew. afresh. Considering the matter anew, the same as if it had not been heard before and as if no decision previously had been rendered.

    • Re:Summary is mostly misleading. (Score:3, Informative)

      by Anonymous Coward

      According to both the article and Groklaw, it's not so much that Judge Kimball threw out SCO's case as it is that he affirmed Magistrate Judge Wells' order that threw out the claims that SCO couldn't or wouldn't substantiate.

      There is a still a problem with the terminology in the above. Judge Wells did not throw out claims (a legal term). She did not throw out evidence. She threw out allegations of IBM wrongdoing that were inadequately substantiated. Judge Kimball affirmed the ruling.

      Contrary to SCO'

        • Re: (Score:3, Informative)

          by Arker (91948)
          Any documents in a court case can be sealed from the general public on request of the parties, to avoid revealing trade secrets, embarrasing stuff, and so on. Then a redacted form of the document is normally made available, minus whatever they don't want you to see.
    • This is still misleading. NONE of Scalderas claims have been dismissed yet. NONE.

      The magistrate judge threw out a number of their *evidentiary* entries, for failure to be specific. That was appealed, reviewed, and affirmed.

  • IBM's reply on Groklaw (Score:5, Informative)

    by richg74 (650636) on Saturday December 23 2006, @10:57AM (#17348204) Homepage
    Groklaw now has up a redacted version [groklaw.net] of IBM's reply memo to SCO's motion, which lays out numerous reasons why SCO is yet again full of what my grandfather called "condensed canal water".
    • The article you linked to is a text version of IBM's reply to a previous SCO motion for partial summary judgment.

      SCO's memorandum in support, which this belated Slashdot article is about, was filed on Dec 14th so we shouldn't expect IBM's reply to it until sometime next week.

  • New evidence? (Score:5, Funny)

    by crossmr (957846) on Saturday December 23 2006, @10:58AM (#17348218) Journal
    If they had some evidence they probably should have used it the first time. What were they waiting for? Christmas?

    • Re:New evidence? (Score:5, Informative)

      by rsmith (90057) on Saturday December 23 2006, @11:21AM (#17348332) Homepage
      Their plan (as admitted in interviews) was to withhold "evidence" to the last moment to prevent IBM from preparing a good defence. This is unfair and not allowed of course, which is part of the reason some of their "evidence" was thrown out.

      • Their plan (as admitted in interviews) was to withhold "evidence" to the last moment

        In this interview were their lips moving? If they were then there is no reason to believe anything quoted from the interview.

        Considering that one of the documents that was uncovered by IBM was an internal tSCOG e-mail to the CEO, Darl McBride, explaining how there was no evidence, its obvious they were not withholding evidence, they were withholding the truth.

        Its a pretty safe bet to assume that their plan was not to withhol

  • Errr... (Score:4, Interesting)

    by Tom (822) on Saturday December 23 2006, @11:03AM (#17348244) Homepage Journal
    Wait, didn't the court just tell them that no, you can not introduce new evidence into a case years after discovery is over? And then tossed their case out saying they have no leg to stand on? And now they say "if only we were allowed to add this new evidence, there would be a case" ???

    Are they trying to pull a Microsoft here - annoying the judge until he says something stupid and they can get him replaced? Or are they simply dumb and hard of hearing?

    • Re:Errr... (Score:4, Insightful)

      by twiddlingbits (707452) on Saturday December 23 2006, @11:26AM (#17348356)
      New evidence can be entered after discovery is closed but it's got to be something that would cause a great injustice if not considered. The ruling SCO is protesting was Judge Wells ruling that SCO did NOT comply with Kimball's earlier ruling that the parts of Linux that infringe be defined in DETAIL, with filename, line #, actual code, relation to code SCO "owns" must also be shown. IIRC, SCO tried to skate around this requirement for about a year with various motions and delays. When discovery closed after SCO being allowed a look at the IBM code archives for Dynix, AIX and IBM's Linux contibutions (such as JFS) and taking dozens of depositions from IBM the BEST SCO could come up with was about 25-30 items that meet the burden of proof. Of those 25-30 most were things like .h files, the ELF binary format (which is public), and some Error Codes.

      Critical to the case, even more so than showing infringement, is the issue of IF SCO even OWNS the copyrights on said System V UNIX code found in Linux, and IF they did (big IF) IBM has a contract with Novell (orginal owner or current owner depending on if you are SCO or IBM) that allows IBM an irrevokable right to use the System V UNIX code as they pleased since they paid for that sort of license. SCO is cooked about six different ways but whether they are roasted, boiled, BarBQ'd, broiled, fried, etc. will have to wait until after the close of discovery in the SCO vs Novell case. If the court (same judge by the way) decides in that instance SCO does NOT own the copyrights on UNIX code the case against IBM is over and IBM wins. The only issue to settle would be IBM's counterclaims, which wouldn't be worth much as SCO would be bankrupt without a win (or another infusion of cash in exchange for "IP" from the Microsoft fairy).
      • twiddlingbits opined:

        Critical to the case, even more so than showing infringement, is the issue of IF SCO even OWNS the copyrights on said System V UNIX code found in Linux, ...

        There ain't no System V code in Linux. All of the gaping holes in SCO's case that you have outlined do exist. But the fact that there is no System V code in Linux is yet another big hole. SCO is not claiming that IBM contributed System V code to Linux. They are complaining that IBM contributed homegrown AIX/Dynix code to Li

    • Re: (Score:3, Interesting)

      by mysticgoat (582871)

      Are they trying to pull a Microsoft here - annoying the judge until he says something stupid and they can get him replaced? Or are they simply dumb and hard of hearing?

      It seems that way, doesn't it?

      SCO's legal team seems to be way out on a limb on this one. I can't help but wonder why any of them keep at it, when at this point it is going to be a highly publicized loss that will follow each of them for the rest of their careers. The usual behavior for lawyers in this situation is to tell the client tha

  • The Casablanca Dilemma (Score:5, Interesting)

    by hey! (33014) on Saturday December 23 2006, @11:54AM (#17348462) Homepage Journal
    This is an example of the Casablanca Dilemma, which works like this.

    You're in Casablanca. If you are not out of Casablanca on tommorow's flight, you're a dead man. You have your tickets, but you need Captain Renault to provide you with papers. Louis charges a thousand francs for this "service",and you can only raise five hundred.

    The only way to double your money overnight is to win big a Rick's roullette tables, which would be very unlikely at an honest table -- which Rick's decidedly are not. Sometimes Rick has been known to take pity on a hard luck case, but there's no special reason for him to help you out of all the other desperate folks. You beg Rick for help, but it's no use. He's already helped one hard luck case tonight, and for some reason he is too distracted to pay attention to anything you have to say.

    So you put down your bet at Rick's crooked table, knowing that you are almost certainly a walking dead man. But it's better to keep playing than to stop, and remove all doubt.

  • Wrong (Score:4, Informative)

    by John Hasler (414242) on Saturday December 23 2006, @12:15PM (#17348538)
    > ...the litigation firm currently in dispute with, among many, IBM, over
    > supposed copyright infringing code in Unix...

    Incorrect. It's a contract case. The only copyright infringement claim The SCO Group is making has to do with IBM continuing to distribute AIX after TSG supposedly terminated IBM's irrevocable, perpetual, fully paid up SysV license.

    > -- has quietly asked the courts to reconsider IBM's request to toss the case
    > out.

    Incorrect again. They have asked the court to reconsider its decision to toss most of TSG's evidence.

    • Re:Wrong (Score:4, Informative)

      by Anonymous Coward on Saturday December 23 2006, @12:51PM (#17348696)
      > Incorrect. It's a contract case. The only copyright infringement claim
      > The SCO Group is making has to do with IBM continuing to distribute AIX
      > after TSG supposedly terminated IBM's irrevocable, perpetual, fully paid
      > up SysV license.

      Sorry, but it's you that's wrong Mr Hasler.
      Here's a breakdown of those Items that remain:

      1 (JFS in Linux): Contract claim
      2 (RCU in Linux): Contract claim
      23 (Dynix EES in Linux): Contract claim, negative know-how
      43 (Dynix TCP in Linux): Contract claim, negative know-how
      90 (Dynix EES in Linux): Contract claim, negative know-how
      94 (NUMA/SMP in Linux): Contract claim
      113-142 (SPIE test suite in Linux): Contract claim
      150-164 (STREAMS in Linux): Copyright claim
      183-184 (Single Unix Specification ABI header files in Linux): Copyright claim
      185 (atemalloc in Linux): Copyright claim
      186-192 (misc Dynix stuff in Linux): Contract claim
      194-203 (Monterey in AIX for Power): Copyright claim
      204 (SysV in Dynix): Copyright claim
      205-231 (Single Unix Specification material in Linux): Copyright claim
      272-278 (ELF in Linux): Copyright claim

      Total remaining items 106
      Contract items 43, copyright items 63
      Linux items 95, Dynix items 1, AIX items 10

      Source: http://www.zen77087.zen.co.uk/nug/alleg/viols.shtm l [zen.co.uk]

      For informed discussion, forget Groklaw's red dress worshipping zombie horde.
      Go to the SCOX forum at Investor Village
      http://www1.investorvillage.com/smbd.asp?mb=1911&p t=m&clear=1 [investorvillage.com]

  • I don't believe ... (Score:3, Insightful)

    by cwsulliv (522390) * <cwsulliv@triad.rr.com> on Saturday December 23 2006, @12:45PM (#17348668)
    that SCO _ever_ thought they had a chance of winning this case; that their intention from the very beginning was just to draw it out as long as possible.

    As long as they do, the 800-pound puppetmaster behind the curtain can continue to get mileage out of charges that Linux is tainted by IP infringement and that Linux users may be liable for stiff damages.
  • If a person keeps filing lawsuits demanding that the CIA and the Pope turn off the mind control beams focused on his apartment, a judge will eventually tell him "Go away and NEVER COME BACK with this nonsense".

    If corporations are "legal persons", why aren't they bound by the same standard?
    • If a person keeps filing lawsuits demanding that the CIA and the Pope turn off the mind control beams focused on his apartment, a judge will eventually tell him "Go away and NEVER COME BACK with this nonsense".

      Assuming said person did not wind up in a "nut house".

      If corporations are "legal persons", why aren't they bound by the same standard?

      When it comes to the law "corporate people" are rarely treated the same as real people. Especially when it comes to criminal law. There are no jails for "corporat
  • after he's spent all this money and lost it all at the justice crap table, rather than going out with the same amount of money, like a normal U.S. entrepeneur and...

    CREATE SOMETHING PEOPLE WILL KNOCK YOUR DOOR DOW TO GET AT.
    • The sorry thing is that he probably will (if he goes relativly free from this court process). He will not be usable for anything that comes close to normal producing company... but I'm guessing that some really ruthless "IP investment and monetization firm" (read "patent-blackmailing") could actually hire him. To me that kind of firms seems to be essentially a gambling setup financed by backers who doesn't risk anything and don't care if the firm folds.

  • Ambiguity (Score:2, Informative)

    by glas_gow (961896)
    Sco

    has quietly asked the courts to reconsider IBM's request to toss the case out.

    This reads like SCO want the court to throw the case out, or that the court has thrown the case out, and SCO wants the court to reconsider. When, in fact, all that has happened is a sizeable portion of their case has been thrown out, not the case in it's entirety.

    • Re:SCO could use the insanity defense (Score:5, Interesting)

      by pla (258480) on Saturday December 23 2006, @11:37AM (#17348394) Journal
      Except that they're not the defendants in this case.

      I don't know - What about the counterclaims? SCO may have bankrupted itself fighting this battle, but IBM still plans to rape the corpse.


      Which is too bad since their twisted and distorted delusional logic would certainly support such an argument.

      Fortunately, I don't think corporations can plead insanity.

      I say "fortunately", because by their very raison d'etre, corporations very much exhibit antisocial PD (what people normally mean by the phrase "criminally insane"), as defined by the DSM-IV (having three or more of the following traits):
      1. Failure to conform to social norms (have no meaning to a corporation)
      2. Deceitfulness, manipulativeness (if they can get away with something...)
      3. Impulsivity, failure to plan ahead (beyond the next quarter's earnings)
      4. Irritability, aggressiveness (if threatened, sue)
      5. Reckless disregard for the safety of self or others (OSHA exists for a reason...)
      6. Consistent irresponsibility (...so does Sarbanes-Oxley)
      7. Lack of remorse after having hurt, mistreated, or stolen from another person (pay 'em off and call it a day)


      Letting corporations plead insanity would amount to giving them carte blanche to rape, pillage, murder, and burn the planet.

      • Letting corporations plead insanity would amount to giving them carte blanche torape, pillage, murder, and burn the planet.
         
        Hey, they are doing this on a grand scale already without ever having to plead anything.

      • Corporations don't do mad things. People do mad things. The people doing the mad things here are Darl McBride, the other members of the board of directors and their lawyers.

        I guess they could plead insanity and get the medical treatment they require.
        • Corporations are an artificial construct designed for a purpouse. The mechanisms and engineering built into this artificial creation are so that, assumed it was a person (and since it is for all practical purpouses a "legal person" the premise is acceptable) it manifests the behaviour of a psycotic sociopath.

          There's a documentary film, "The Corporation", that neatly expounds this idea. Of course anyone unwilling to argue reasonably will dismiss it as commie drivel and move along... too bad.
          • This is true, but in England anyway, there is something called "lifting the veil of incorporation", which makes the people behind the corporation responsible in certain circumstances.
        • Corporations don't do mad things. People do mad things. The people doing the mad things here are Darl McBride, the other members of the board of directors and their lawyers.

          IIRC it is very much the case that "corporate people", especially with the laws which currently exist surrounding their behaviour would definitly qualify as "mad people".
        • I'm not sure what the corporate equivalent of locking you up in a loonie bin would be.

          800 hours of community service chained to Steve Balmer in the Pentagon putting together cheap office chairs from China that are missing parts.
        • Except pleading insanity doesn't get you off; it gets you locked up in mental hospital for the rest of your life, or at least until they decide you're no longer crazy and a danger to others.

          Which may be a longer sentence than regular imprisonment... There's also an argument that a verdict of "guilty, but insane" might be more appropriate in some cases.

          I'm not sure what the corporate equivalent of locking you up in a loonie bin would be.

          There probably isn't one, given that there isn't an equivalent of
    • is it just me, or could IBM easily afford to simply buy SCO group? seams like if they just bought the company, they would have nothing to worry about, and the issue would end.
      If IBM buys SCO, you can expect that hundreds of other dying companies will file groundless lawsuits against IBM, hoping to get bought as well. IBM doesn't want that.
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