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SCO Asks Court To Reconsider IBM's Dismissal 139

Posted by CowboyNeal
from the not-so-fast dept.
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

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  • by fotang (606654) on Saturday December 23, 2006 @11:46AM (#17348148)
    as news for nerds that is one week old [groklaw.net] is still news...
  • by YouHaveSnail (202852) on Saturday December 23, 2006 @11:54AM (#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.
  • by richg74 (650636) on Saturday December 23, 2006 @11:57AM (#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".
  • by fotang (606654) on Saturday December 23, 2006 @12:01PM (#17348238)
    ...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. (?)

  • by rsmith (90057) on Saturday December 23, 2006 @12:17PM (#17348310) Homepage
    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 contracts and correspondence, and using parts of declarations out of context.

    It's just plain lies, dressed up to enable SCOG to present them without sanction.

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

    by rsmith (90057) on Saturday December 23, 2006 @12:21PM (#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.
  • by Anonymous Coward on Saturday December 23, 2006 @12:34PM (#17348386)

    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's latest filings and attempts to obfuscate the issue, all of the claims (Causes of action) are intact. They still have about a hundred allegations in play. Most of these allegations are still redacted from the general public but indications are that they are quite weak.

  • Wrong (Score:4, Informative)

    by John Hasler (414242) on Saturday December 23, 2006 @01:15PM (#17348538) Homepage
    > ...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 @01:51PM (#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]
  • Ambiguity (Score:2, Informative)

    by glas_gow (961896) on Saturday December 23, 2006 @02:13PM (#17348820)
    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.

  • by Arker (91948) on Saturday December 23, 2006 @03:52PM (#17349292) Homepage
    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.
  • Problem with that (Score:3, Informative)

    by jonasj (538692) on Saturday December 23, 2006 @08:21PM (#17350548)
    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.
  • by Anonymous Coward on Saturday December 23, 2006 @08:33PM (#17350600)
    That's why IBM never settles - never.
  • by fishbowl (7759) on Sunday December 24, 2006 @01:30AM (#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.

If a thing's worth having, it's worth cheating for. -- W.C. Fields

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