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Caldera Government Linux Business The Courts News

SCO Files for Stay of Execution 294

Posted by CmdrTaco from the check-out-my-legal-briefs dept.
An anonymous reader writes "SCO has filed for another delay in the case against IBM. The article reports that 'According to filings in the case, SCO is looking to buy time until the court can hear its arguments compelling IBM to release more information. SCO lawyers argue the information -- namely source code they claim was lifted from AIX and Dynix to bolster the open source Linux kernel -- is necessary in getting a successful ruling.'"
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SCO Files for Stay of Execution More

SCO Files for Stay of Execution

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  • groklaw! (Score:5, Informative)

    by jabella ( 91754 ) * on Tuesday September 14, 2004 @04:03PM (#10249408) Journal
    obligatory groklaw coverage [groklaw.net]

    this line is just filler.

    • Re:groklaw! (Score:5, Interesting)

      by CSG_SurferDude ( 96615 ) <.wedaa. .at. .wedaa.com.> on Tuesday September 14, 2004 @04:44PM (#10249820) Homepage Journal

      You know, it's just to the point now where I read groklaw in the morning before I read /. , and then I spend the rest of my day wondering when groklaw's latest article will show up over here.

      Too bad groklaw doesn't have moderation points like here, else I'd spend even more time over there.


      • I too am a regular Groklaw reader and really really wish they had moderation. As it is there is just waaay too much noise in the comments. I usually end up only reading a couple of "first posts" and then leaving. I would be very interested in reading some of the really interesting comments if they could somehow be bubbled up like it is here.

        I donated a little money earlier today and suggested to PJ that she turn on moderation for Groklaw. She doesn't have to, but if enough of us did that she might reco

        • Doubt PJ would go for that... (Score:4, Insightful)

          by Xenographic ( 557057 ) on Tuesday September 14, 2004 @09:46PM (#10252017) Journal
          As yet another regular Groklaw reader, I can tell you that PJ had no such plans last I knew, simply because she commented over here a few times, only to be ignored in favor of highly-moderated (but incorrect) legal advice someone gave out. Thus, she's no fan of moderation.

          That said, there are generally only a few threads worth reading--some of the new information under OT and corrections (which are generally started by someone right at the top of each new story), and comments by some of the more knowledgeable legal types on Groklaw. AllParadox & Marbux come to mind--you can search for their comments via the Groklaw search page. Quartermass is another who provides interesting legal insight, but he always posts anonymously, merely signing his messages, to encourage people not to filter the anonymous posts out over there. Sadly, that makes his insights harder to find, with them being somewhat burried.

    • Link's Text (Score:4, Informative)

      by Anonymous Coward on Tuesday September 14, 2004 @04:49PM (#10249868)
      So many documents are showing up in this frantic motion practice SCO and IBM are embroiled in, it's hard to even read them all, let alone write about them. But I think we may summarize them like this: SCO would like more time before it has to walk the plank.

      And an old AT&T attorney, Martin Pfeffer, who claims no direct involvement with the IBM contract that I can see in a quick reading of his statement, says some things that don't apply to IBM at all.

      I gather SCO would like to bury the judges in documents so they will be forced to grant delays just to be able to read them all in time. If it was confident at all that it could prevail on any of IBM's motions, I believe none of this would be happening. They may well get some delay from this strategic blizzard of paper, unless it annoys the judge as much as it does me, but it won't change the eventual outcome at all, from anything I've seen so far, including the Pfeffer testimony. They're like a condemned man, asking at the last minute for a dish that takes three days to prepare as his last meal. Even if his request is granted, he's still going to die. So, if they do get a delay, don't be amazed. They've certainly worked hard enough for one, and the judge may not know them as well as we do. A lot depends on understanding the tech. If the judge gets it, it helps to see through what would other wise sound plausible.

      It's kind of like at the beginning. Remember how the media would print every bit of SCO's outrageous claims, as if they were received from heaven on stone? We knew what SCO was saying about Linux would not prove true, didn't we? And how did we know? Because some of us understood the tech and we all understood the GPL. Do you see the media still eating up SCO's every claim? No. They got educated. It's the same in the court cases. It may take time, and it can prove frustrating if you like instant results. But it is an inexorable process, and it will happen with the judges, just as it did with the journalists. And they can take their time, I reckon, getting up to speed, what with all the delays SCO keeps asking for. But judges are not stupid. They will see the SCO pattern, if they don't already. How many delays can SCO ask for before they see what is happening? I don't know. But they will see it eventually, without a doubt. It's also true that many judges tend to bend over backward to be fair to the side they know is going to lose. Really. So, if they get more delay, they get more delay, but the process is moving forward like a tank.

      It's all SCO here, except for IBM's normal reply memorandum on the motion to strike and one request -- to be allowed to file a response to SCO's Supplemental Memorandum re: Discovery and to Continue Hearing. As you recall, Judge Wells told them that after SCO's filed this document, anything further could only be brought up at the hearing. However, it seems SCO took advantage of that to raise new issues, and IBM asks for time to get declarations in response.

      Here they all are. Read them and weep. I feel like crying just looking at them all, thinking about transcribing and doing all this HTML. If you can help, please do, leaving a comment on which one you are working on, so we don't overlap:

      #272 - SCO's ex parte motion for leave to file overlength memorandum re: SCO's Opposition to IBM's Motion to Strike Materials

      #273 - SCO's Supplemental Declaration of Christopher Sontag in Support of SCO's Oppositon to IBM's Motion to Strike

      #274 - SCO's Supplemental Declaration of Sandeep Gupta re SCO's Opposition to IBM's Motion to Strike

      #275 - SCO's Supplemental Declaration of John Harrop in Support of SCO's Opposition to IBM's Motion to Strike

      #276 - IBM's [redacted] Reply to response to [212] Motion to Strike the 7/12/2004 Declaration of Christopher Sontag

      #277 - SCO's Motion to extend time to file response to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims and IBM's Motion for Partial Summary Judgment on it's Counterclaim for Copy

    • Re:groklaw! (Score:3, Interesting)

      by jhines ( 82154 )
      Groklaw is the best thing to come out of this suit.

      Only good thing so far as well.

      • Bunch of us shorted the snot out of SCO stock (Score:5, Interesting)

        by linuxguy ( 98493 ) on Tuesday September 14, 2004 @07:45PM (#10251318) Homepage
        Many Linux geeks including myself shorted the SCO stock and made large amounts of money. In my opinion that is another good thing that came out of this fiaSCO.

        Thanks to SCO I have a brand new SUV and some really really nice computer equipment. And I am not even done spending a quarter of the proceeds from my successful SCO short transanction. I would actually like to thank Darl and the gang for the money. I am just not sure what the best way of doing this would be.

        Maybe I'll send them a card and thank them for lying through their teeth and pumping up a worthless stock. I am sure they'll appreciate it.
        • Don't send a card linuxguy. They will drag you into court because you didn't pay for a license that 'allows' you to thank them.

          Of course, you don't need a license to say:
          Go fuck yourself SCO!

          I heard the veep say something like that.


        • Thanks to SCO I have a brand new SUV and some really really nice computer equipment. And I am not even done spending a quarter of the proceeds from my successful SCO short transanction. I would actually like to thank Darl and the gang for the money.

          Bzzzzzzzt!

          I call bullshit.

          You mention an SUV without a model number. You mention "computer equipment" without any specifics. You mention shorting stock, without saying how much, nor do you mention annything that gives any idea how much, other than "a quart

          • I think you're full of it. If what you said was real, you wouldn've

            given SOME details on such a beneficial transaction!

            Not pointing fingers, when some of the tinfoil crowd comes ups with wild theories, we all sit and agree, partly because we WANT to agree. Slashdot comments are known for sometiems being low on facts, and high on heresay. Face it!

            the Grandparent post comes up with a story, whcih may be true or false. However, face it, I am sure MOST of the geeks wish we would have done something similar,

          • Not necessarily (Score:3, Insightful)

            by JetJaguar ( 1539 )
            I know for a fact that there had to be quite a few people that were shorting SCO stock. I tried to do it myself, but was disallowed because the percentage of SCO stock that was already being shorted was too high. The original poster's story might've been lacking in details, but it's a pretty safe bet that if this guy didn't make a lot of money off of shorting SCO stock, somebody did.

        • Re:Bunch of us shorted the snot out of SCO stock (Score:4, Informative)

          by matfa ( 715563 ) on Wednesday September 15, 2004 @06:04AM (#10254514) Homepage
          Correct me if I'm wrong, but the best you can make out of a short deal is to double your money? So that's a MASSIVE investment you made there!

          For inquiring minds; the reason you can only double on a short is that technically you borrow and sell it.

          You "pay" enough money to cover the shares to your broker, who keeps it as a security for the duration of the deal.

          When you close the short deal, your broker buys enough new shares to cover your initial loan you get the difference between what they sold the shares (start of transaction) for and what they bought them for (end of transaction).

          Thus if a stock is completely wiped out while you're shorting it, your gain will be;

          Gain = (InitialPrice-FinalPrice)/InitialPrice = 100%

          If the stock falls 50% you instead make;

          Gain = (1-0.5)/1 = 50%

          It's extremely risky to invest in short deals if you don't constantly keep on top of the investment. Say you shorted SCO way back when everyone thought it was going to die but instead it doubled or even trippled it's value, in that case you stand to loose far more than you initially invested.

          Gain = (1-3)/1 = -200% (ouch)

          But your broker will actually terminate part of or your entire short deal as you become unable to cover the re-purchase price.

          Now if you change your mind and say it was a sell option that made you all that cash, your credibility might actually go up...

          cheers,
          m

  • Old news for GROKLAW readers... (Score:5, Insightful)

    by Quebec ( 35169 ) * on Tuesday September 14, 2004 @04:04PM (#10249411) Homepage
    And again, it's another journalist who repeat like a parrot SCO' press release without digging a little bit... annoying.

    • Re:Old news for GROKLAW readers... (Score:5, Interesting)

      by AKAImBatman ( 238306 ) * <akaimbatman AT gmail DOT com> on Tuesday September 14, 2004 @04:06PM (#10249440) Homepage Journal
      Indeed. For example:

      "Also last week, SCO lawyers successfully fended off a filing made last week by AutoZone that would have put an end to any discovery proceedings in its case."

      makes it look like SCO is the "good guy" here, getting beat up by all these evil Linux^W auto-part makers.
      • "...makes it look like SCO is the "good guy" here.."

        It might be a rare example where it's justiied. SCO contends AutoZone carried over proprietary code in migrating from OpenServer to Linux.

        "...when AutoZone's corporate network migrated from SCO's OpenServer technology to Linux, some of the OpenServer code went into the switch."

        Not even SCO's perfect, they can be right sometimes.

    • I dont know that its just that their repeating, look at the time line on the bottom of the article. Seems a little thin [linux.org] to me.

    • Do lawyers read C? (Score:5, Interesting)

      by yoshi_mon ( 172895 ) on Tuesday September 14, 2004 @05:03PM (#10250036)
      Old news for GROKLAW readers...

      Now don't get me wrong, Groklaw is a good site for the most up to date information on all of this but the format that PJ put it in, her editorializing not withstanding, is very legalease.

      And that also is just fine. There are geek lawyers out there who want to know the straight dope on what's going on with SCO, the IANAL geeks who know enough to read it without getting splitting headaches after a while, and those of us like me to still go there and read but soon develop splitting headaches after a while.

      I don't expect a lawyers to understand C and don't think that just beacuse geeks are considered to be smart that they should automaticly have to understand legalease. It's unfair to expect just because Groklaw exists that /. should not cover it as well. Do you expect to find a major story in only one newspaper?

      Groklaw has their niche as does /. and it's getting rather old to watch every story about SCO on /. have someone scream, "This is old new! Groklaw had it first!"

      • Re:Do lawyers read C? (Score:3, Interesting)

        by Quebec ( 35169 ) *
        First, Groklaw is made by a legalease for non-legalease.

        Second, althought I pointed out the fact that it wasn't breaking news, I was more complaining about the work of the journalist at internetnews.com which did not dig a single thing out of the content of some press releases.

        This total lack of professionalism from journalists is the reason why SCO was able to get so much money from investors to make those stupid lawsuits.

        It's also for the same reason that Bush could lie so much and so long about the re

  • Ahh, beautiful irony... (Score:5, Insightful)

    by Astadar ( 591470 ) on Tuesday September 14, 2004 @04:04PM (#10249416)
    "Tell us what we want to know, but we need more time to find what we've been claiming for months."

    Truth is stranger than fiction.

  • The words of REM come to mind. . . (Score:4, Funny)

    by Excen ( 686416 ) on Tuesday September 14, 2004 @04:04PM (#10249417) Homepage Journal
    "It's the end of the world as we know it, and I feel fine!"

  • great, but wait... (Score:3, Insightful)

    by munboy ( 732717 ) <munboy@@@gmail...com> on Tuesday September 14, 2004 @04:06PM (#10249446) Journal
    if they are doing this, are they like chickening out from suing IBM?? cool! (doubt it, but its woth a thought.)

  • SCO tactic (Score:5, Funny)

    by Nichotin ( 794369 ) on Tuesday September 14, 2004 @04:07PM (#10249451)
    Their strategy is simple, delay, delay, delay until IBM goes bankrupt.

    • Re:SCO tactic (Score:2, Funny)

      by Fishead ( 658061 )
      Kinda like the scottsman who saw the add stating "Drink Canada Dry", so he went out to see if he could.
    • Oh...wait. Didn't SCO cap their legal funds. Looks like they're the ones who will go bankrupt!

      • Re:SCO tactic (Score:5, Funny)

        by KilobyteKnight ( 91023 ) <bjm.midsouth@rr@com> on Tuesday September 14, 2004 @04:39PM (#10249780) Homepage
        Oh...wait. Didn't SCO cap their legal funds. Looks like they're the ones who will go bankrupt!

        Yes. I believe it was at $35M. The SCO lawyers haven't reached that yet. I think they'll give up when they do.

        I can see it now:

        SCO Lawyer: Judge Kimball, I'm a little embarrassed here, but it looks like we really don't have a case. You know how complicated these computer things are. It turns out the line "for( i=0; imax; i++)" is actually not SCO IP. Can we just forget this silly lawsuit, please?
        • For as much as they are paying these guys, I would hope that Boies decides to make an appearance tommorrow. It is, afterall, one of the most important hearings that this case will see.

        • Re:SCO tactic (Score:3, Funny)

          by SoTuA ( 683507 )
          Yes. I believe it was at $35M. The SCO lawyers haven't reached that yet. I think they'll give up when they do.

          Of course they'll give up. Lawyers don't have a problem with pushing frivolous cases and/or putting people on the street, but they don't do it for free ;)

          (Now here's hoping my wife doesn't read /., being that she is a lawyer and all that... )

    • Re:SCO tactic (Score:5, Funny)

      by RsG ( 809189 ) on Tuesday September 14, 2004 @04:26PM (#10249653)
      Whereas their law firm's strategy is even simpler: take the money and run.

      I can see it now; suit-and-tie lawyers making a mad dash from Utah to Texas and then Mexico, with Darl and a fleet of cops cars in hot pursuit. Their ties flapping in the dusty wind, case files and "source code", that is on closer examination shredded newspaper, fluttering as it's thrown out the window. Banjo music plays as the lawyer's Mercedes pickup truck rattles down offroad trails, the lawyers finally escaping in a mad stunt that involves getting the stylish rustbucket airborne.

      Sort of the dukes of hazard meets law and order, with that special surreal Utah flavour that Darl seems to be snorting.

    • Re:SCO tactic (Score:3, Funny)

      by Anonymous Coward
      You are ignoring their other lawsuits (Redhat, Novell...). It's obvious their strategry is to lose lawsuits... how do they make money? Simple: volume!

  • If it's open source... (Score:5, Insightful)

    by xombo ( 628858 ) on Tuesday September 14, 2004 @04:07PM (#10249459)
    So they're asking IBM to open the source that was stolen to SCO so they can investigate it?

    I thought the thing they were investigating in the first place was source that was already opened that SCO found.

    Am I missing something?
    • I thought the thing they were investigating in the first place was source that was already opened that SCO found.

      Also, the pellet with the poison is in the vessel with the pestel. The flagon with the dragon holds the brew that is true.
    • Am I missing something?

      Nope, you've pretty much summed up SCO's entire legal strategy.

    • Here's the quick summary. (Score:5, Informative)

      by Yobgod Ababua ( 68687 ) on Tuesday September 14, 2004 @04:39PM (#10249781)
      SCO has always had the SysV code they claim was stolen and the Linux code they say it was dropped into, so IBM says that should be sufficient to prove that there is or is not 'infringing code in Linux'.

      Rather than legally provide any of this infringing code that their 'experts' allegedly found 'mountains of', SCO keeps changing the story.

      Currently, the line is that IBMs contract prevented IBM from revealing not only any SysV code, but any IBM code that was shipped together with SysV code, or any IBM code that somehow derived from "UNIX methods and concepts".

      To prove this last point, they want IBM to provide the complete revision history of every file in AIX, including programmer notes, so that they can read through it all and try to find places where programmers writing IBM code were 'tainted' with SysV knowledge. IBM says that this theory is ridiculous and that they should not have to go through this burdensome procedure because it's irrelevant. SCO has SysV code, code from several releases of AIX and Dynix, and Linux code, and therefore has everything they would possibly need to prove infringement under standard copyright laws.

      In any case, any code that one side provides to the other would be under seal, not availible to the public, and certainly not open sourced.
      • Wouldn't any proper CVS of Linux (or even IBM's UNIX if they use CVS) have all of that already? Seems like SCO just needs to go on sourceforge.
        • IBM's revision history of AIX is in their proprietary (and discontinued) CMVC product.

          Behind the scenes it can be either RCS or SCCS storing the deltatext.

          IIRC, the change log comments are stored in an SQL database of your choice, along with all the other metadata for bug/feature tracking and release management.

          So, sure, they could just do something like:

          Report -view fileView -where "releasename like 'bos%'"

          (It's been 5 years since I worked with CMVC, I've forgotten the real column and view names.


      • find places where programmers writing IBM code were 'tainted' with SysV knowledge.
        This isn't Patent law. It's copyright law. Making a product that mimics the behavior of an existing product is only illegal if the original product was patented. Being merely copyrighted, it doesn't matter if IBM's programmers knew the design of SysV and made use of it or not. Only an acutal direct copy of some code verbatim would be illegal. Re-implementing code to do the same thing would not.

      • Re:Here's the quick summary. (Score:5, Insightful)

        by UnknowingFool ( 672806 ) on Tuesday September 14, 2004 @06:12PM (#10250588)
        Currently, the line is that IBMs contract prevented IBM from revealing not only any SysV code, but any IBM code that was shipped together with SysV code, or any IBM code that somehow derived from "UNIX methods and concepts".

        SCO's position is that according to the original AT&T contract, any derived code becomes part of the SysV and thus is owned by SCO not IBM. Because IBM used "methods and concepts" of Unix when developing AIX, there is no such thing as "homegrown" code for IBM. They base this on THEIR intrepretation of copyright law. This is according to their SCO's Memo in Support of its Expedited Motion to Enforce the Scheduling Order [groklaw.net]

        SCO does maintain that AIX and Dynix are subject to the restrictions of the licensing agreements because they are derivatives of UNIX, and consequently that IBM breached the license agreements by contributing to Linux any portion of those contractually-protected derivatives. . .

        Moreover, IBM's claimed right to make and appropriate for itself copies of SCO's code, so long as the copies are not literal copies, is one that IBM would not even have under the copyright laws. Basic copyright law has long recognized that copying can occur through the making of "derivatives" without any literal copying at all. Moreover, the common law not only protects "methods or concepts," but also extends farther, beyond trade secrets, and far beyond literal copying. IBM's claim thus reduces to the untenable proposition that under the terms of the license agreements, IBM can do what copyright and common law would forbid: make non-literal copies of another's work and innovation, and thereby misappropriate that innovation for itself.

        IBM has already answered this argument. If a contract is being questioned, the court can ask the original parties what they meant. If there is a dispute, the court has to decide between both sides. They have affidavits from everyone involved with the original contract negotiations at AT&T (some of them still work for AT&T). There is now questions from IBM, Sequent, and AT&T all that AT&T does not claim ownership of derivative or "homegrown" code and disagrees with SCO's interpretation.

        SCO responds by challenging only two of IBM's many witnesses (Wilson and Frasure). Back in the USL vs BSD case, two of IBM's witnesses argued the opposite. They said the AT&T should own all derivative code. Two things that SCO forgot to mention to the court. The USL vs BSD is sealed and testimony from the case is highly inadmissable AND the court was in favor of ruling against USL on their notion of copyright law and derivatives. Since then the witnesses may have changed their opinions.

        IBM also argues SCO's notion is ridiculous. It would mean SCO owns any code written by MS, Sun, Compaq, HP, Irix, IBM, etc simply because they at one time put that code anywhere near SysV code.

        SCO's interpretation of the Software Agreements in this case would plainly produce an absurd and commercially unreasonable result. As set forth above (at 62-63), under SCO's interpretation of the Software Agreements, SCO has the right to control every single one of the tens of millions of lines of code that have ever been put into (and that will ever be put into) AIX or Dynix by IBM. This interpretation would allow SCO to co-opt decades of IBM's work in developing and improving AIX and Dynix--by continually adding new capabilities and functionalities--simply because those programs contain, or even once contained, some source code, no matter how negligible, from UNIX System V. SCO's interpretation would also mean that SCO has the right to control code that was written by third parties and licensed to IBM, even if such third parties have no relationship at all with SCO. According to SCO, just because a third party licenses code--that it expended its own resources developing--to IBM, and IBM includes such code in AIX or Dynix, SCO gets to dictate forever after the use and disclosure of that third party's code by IBM. That is plainly unreasonable.
        • Wow.

          SCO's interpretation of the Software Agreements in this case would plainly produce an absurd and commercially unreasonable result. As set forth above (at 62-63), under SCO's interpretation of the Software Agreements, SCO has the right to control every single one of the tens of millions of lines of code that have ever been put into (and that will ever be put into) AIX or Dynix by IBM. This interpretation would allow SCO to co-opt decades of IBM's work in developing and improving AIX and Dynix--by contin

  • Why do they persist? (Score:5, Insightful)

    by AcidFnTonic ( 791034 ) on Tuesday September 14, 2004 @04:08PM (#10249470) Homepage
    SCO is just digging, I wish they would either strike, or leave us the hell alone. Slander is what it's boiling down to. They need to get more sales and money and all they can do is talk shit about linux until someone figures out they have no case..... but the lose of sales from their bullshit will hurt other companies and they deserve to be sued back.... Anyone care to join in with Big Blue?

    • Re:Why do they persist? (Score:5, Interesting)

      by Jaywalk ( 94910 ) on Tuesday September 14, 2004 @04:32PM (#10249716) Homepage
      SCO is just digging, I wish they would either strike, or leave us the hell alone. Slander is what it's boiling down to.
      What SCO is trying to do is to survive the first round, IBM is looking to take them out early. If the judge finds for IBM, there is no jury trial and SCO is left with only the barest skeleton of a case while still facing IBM's countersuit. SCO is trying desperately to get the case in front of a jury, presumably because they still believe Enderle's analysis [eweek.com] which boils down to, "juries are stupid and might do anything." And a random roll of the dice is better for SCO than an assessment by an experienced judge.

      Of course, that's assuming that Enderle is right in assuming that SCO will come off as sympathetic. And, even if SCO convinces a jury, that the case would continue to survive the inevitable appeal. SCO probably doesn't expect to win in the end, but even a fleeting victory would give them another spike in their stock price they could exploit for their own ends.

  • Must sell more stock! (Score:5, Insightful)

    by SteroidMan ( 782859 ) on Tuesday September 14, 2004 @04:09PM (#10249475)
    The real reason for the delay is that the lawyers have their next scheduled stock sale next week!

  • I've said it once... (Score:4, Informative)

    by GreenCrackBaby ( 203293 ) on Tuesday September 14, 2004 @04:12PM (#10249498) Homepage
    ...and I'll say it again.

    SCO has zero chance of winning. We know this, but more importantly, they know this too. This has always been the expected outcome. Thankfully the link between SCO and Microsoft has been established, admitted to, and documented, otherwise people like me would still be getting called "tinfoil hat idiots".

    As long as this case exists, so does fear, uncertainty, and doubt towards linux. The longer they can stretch it out before a ruling, the better.
    • >SCO has zero chance of winning.

      There's more than zero chance of error in the legal system.

      I heard a lawyer speaking at a conference who said that if you have all the facts sewn up (cryptographically signed and time-stamped videotape, eyewitness testimony from the Pope, smoking-gun email) and if all the law is on your side from the Code of Hammurabi onward, then you have about a 90% chance of winning.
      • Yes, there's the possibility of SCO's attorneys talking some naive jury into issuing a verdict in their favor, however that would not guarantee anything for them. First, the case has to make it through the trial and to the jury deliberation stage. I'd be very surprised if SCO doesn't run out of money before this point. Then, the jury's verdict would have to stand up to appeals, which you can be sure IBM would file if they were to somehow lose. Even then, all the jury's verdict would likely mean is SCO winni

    • Re:I've said it once... (Score:5, Insightful)

      by swillden ( 191260 ) * <shawn-ds@willden.org> on Tuesday September 14, 2004 @06:25PM (#10250662) Journal

      We know this, but more importantly, they know this too. This has always been the expected outcome.

      I don't think this is true.

      In my opinion, here's how it went down:

      In the beginning, it was just a ploy to get bought out by IBM. When IBM didn't bite, SCO tried to turn up the heat by saying some outrageous things and by threatening to cancel IBM's UNIX license. When IBM still didn't bite, SCO decided to turn up the heat some more by filing a lawsuit. IBM is a very risk-averse and PR-sensitive company and it was somewhat reasonable for SCO to assume that IBM would try hard to stay out of court. IBM, however, learned long ago that if you cave to every threat, the leeches will suck you dry, so IBM hunkered down and prepared for battle.

      Now, if SCO's management were really smart, they would have realized somewhere along the line that it wasn't going to work and backed off. But some other things happened during this series of SCO-initiated escalations. First, SCO's stock price took a massive jump. In fact, Darl and company quickly realized that the more outrageous the claims they made the bigger the spike they could provoke. Now they knew, and had planned on, the stock price going up and had already set up their timed, periodic sell orders, but I think they got a much bigger boost than they had ever dreamed, and I think it made them a little (more) nuts and (more) stupid.

      Another thing that happened was the cash from Sun and Microsoft, which made SCO realize that perhaps there was another way to squeeze money out of this furor they were stirring up. The Baystar and RBC investments cemented it. They also found that threatening to charge for Linux licenses gave their stock price a nice bump and they wondered if, just maybe, people would really pay. They knew that given the herd mentality of big business, if they could scare a few into paying, lots would. And LOTS of big companies use Linux. They almost made a severe mistake here, BTW, when they began talking about sending out invoices. Whether it was the response from the community or their own attorneys that did it, they managed to figure out that sending invoices might constitute mail fraud, and that's a Bad Thing.

      I think that was the point of no return. In order to create the frightened stampede of Linux licensees that they hoped for, they had to threaten so hard and so loud that they essentially made backing off impossible.

      But that's not all. I think that fairly early on, they did some cursory examination of Unix System V and Linux and found some snippets of duplicate code. "Aha!", they said, "This smoke that we've been blowing actually has some fire underneath!" Of course, some of the code was BSD, some was Unix System III, and the rest was trivial errors made by SGI, quickly corrected. But I don't think they realized any of that until the community pointed it out to them. Even after that, I think they really believed that there *had* to be infringement in there. These guys are not programmers and they didn't understand that it is, in fact, much easier to replicate existing functionality than to build something new, so it shouldn't surprise anyone that Linus et al were able to bring Linux from nothing to a powerful kernel in a little over a decade. They also didn't understand just how much of a leg up the GNU tools gave the Linux developers.

      On top of the suspicion that there actually was copied code, if they could just find it, I think they they had read too much of the secret USL vs BSDi documents and understood too little of them. In that court case, AT&T was arguing the same sorts of expansive theories that SCO has been arguing, claiming that anyone who brushed up against Unix was mentally "contaminated" for life. What they missed were two fundamental points: First, that USL was arguing trade secret, copyright, trademark and copyright all together, unlike SCO, who has tried to argue everything, but has gotten whittled down to purely contractual arguments and second

  • The limits of motion to delay (Score:5, Interesting)

    by Vexler ( 127353 ) on Tuesday September 14, 2004 @04:13PM (#10249508) Journal
    I am not a lawyer, and I am seeing what amounts to little more than:

    IBM: We want summary judgment now.
    SCO: No, you can't. You haven't given us [INSERT NAME OF RANDOM STUFF].
    IBM: But that stuff is irrelevant. Besides, you haven't given us any proof. We want judgment now.
    SCO: No, you can't. You haven't given us [INSERT NAME OF MORE RANDOM STUFF].

    (ad infinitum)

    What can IBM do legally to stop the cycle and for the judge to say, "Enough!"?

    • Re:The limits of motion to delay (Score:5, Insightful)

      by AKAImBatman ( 238306 ) * <akaimbatman AT gmail DOT com> on Tuesday September 14, 2004 @04:15PM (#10249537) Homepage Journal
      By necessity, Judges are very patient creatures. Don't be surprised if the judge waits until SCO is done hanging themselves before he slams the case shut. If he doesn't give them enough rope, they could start all over in an appeals court.

      • The slamming shut won't happen until after IBM's counterclaims are resolved.

        The end of SCO is near?

      • Don't be surprised if the judge waits until SCO is done hanging themselves before he slams the case shut.

        I've been listening to the rope theory for a year and half. They have enough rope. The appeals court recognizes that discovery is not an infinite process and should not be unduly burdensome on the defense. If this isn't the definition of unduly burdened then it's never happened.

        It's way past time for Judge Wells to call bullshit on this nonsense. SCO's the plantiff for crying out loud. Yes, the

        • Perhaps rope-feeding is the wrong analogy. What I see is judges dotting every i and crossing every t because they don't need this back in their courtroom. It is very obvious that SCO will try to keep this in court until the money runs out. These judges want the least possible amount of that time in their courts. Basically, Judges hate getting appealed cases back.

  • OB Stock (Score:5, Informative)

    by Coneasfast ( 690509 ) on Tuesday September 14, 2004 @04:13PM (#10249514)
    here [yahoo.com] is the yahoo quote, as always, they're going down.

  • Stay of execution (Score:3, Funny)

    by Anne Thwacks ( 531696 ) on Tuesday September 14, 2004 @04:13PM (#10249518)
    No, No... excute them now!

  • When will they learn? (Score:5, Interesting)

    by Ralph Spoilsport ( 673134 ) on Tuesday September 14, 2004 @04:14PM (#10249529) Journal
    Soner or later all their shell gaming is going to come to an end, and they're going to go down big time.

    Watching the SCO saga is like watching a completely preventable train wreck in the slowest possible motion - kind of like watching snakegrass grow, or watching paint on the ugliest painting ever painted dry. Mondrian's skidmarks after a night of taxidancing. Picasso's Kleenex. Something like that.

    We should start putting up options on when this idiotic extravaganza will come to a final end.

    2005?
    2006?
    2007?
    2438?

    I no longer feel sorry for any one left treading water at SCO. They've had PLENTY of time to jump ship and flee the scene. When the slowly grinding wheel of justice makes its dirty, uuuh, duty, clean, nnnuuh, clear, these trusswrappers will be persecuted to the fullest extent of the law, and they will all have to walk the plank.

    "I was Darl McBride, CEO at SCO for ages. Now I ask customers 'you want fries with that?' "

    Hope and Pray.

    RS

  • What the Nazgul have been up to. (Score:5, Informative)

    by Jaywalk ( 94910 ) on Tuesday September 14, 2004 @04:16PM (#10249545) Homepage
    There was a lot of griping when SCO started this dog-and-pony show that IBM's lawyers weren't doing anything, but now it's clear why. After over a year of letting SCO delay and extend the case, they're starting to play hardball. Here is a PDF [slashdot.org] that includes a couple of filings and an exchange of letters between the lawyers on each side. SCO is asking for more time and IBM just isn't taking it anymore. Loosely translated, they're telling SCO they've had enough time, they've been given all the opportunity they need to gather data and they haven't bothered. Presumably the Nazgul have all the offers to gather data and SCO's responses documented, because when SCO threatens to go to the judge, IBM tells them to go ahead.

    The letters are fun reading and provide a good example on how to make opposing counsel look stupid. Both sides have accused the other of dragging their feet. So this time -- when SCO asks for a delay -- IBM says okay, as long as you don't want the delay in order to just ask for another delay. SCO refuses, basically admitting that this is exactly what they planned to do.

    • Where is that PDF? Thr URL was broken...

  • Yeah, it's aold news to groklaw.. (Score:5, Funny)

    by TiggertheMad ( 556308 ) on Tuesday September 14, 2004 @04:17PM (#10249560) Journal
    ..but we need something to gossip about on /.

    THE SCENE: A COURTROOM. IT IS FILLED WITH MANY TENSE LAWYERS IN EXPENSIVE SUITS, HALF OF THEM ARE BLUE.

    SCO SHILL: Your honor, most wise, humble and double wicked cool dud-
    JUDGE: Get on with it.
    SCO SHILL: *Ahem* In accordance with the 1887 ruling of the federal government vs. Keanu Reves, we would like you to summarily find for the plaintiff, SCO, and award damages to the tune of-
    JUDGE: I'm not familiar with that ruling. Keanu Reves? 1887? If this is another delaying tactic counselor...
    SCO SHILL: We request a three month period to shake down more, er, find um, evidence!
    JUDGE: Denied. You haven't given a reason that there might be new evidenc introduced.
    SCO SHILL: WE REQUEST A RECESS!
    JUDGE: Denied. You just got back from one.
    SCO SHILL: WE REQUEST AN EMERGENCY BATHROOM BREAK!
    KEANU: (from the back of the courtroom) Woah.

  • Analogy (Score:5, Insightful)

    by Archangel Michael ( 180766 ) on Tuesday September 14, 2004 @04:18PM (#10249568) Journal
    I know you stole my ring. If you let me in your house, to look around, I am sure I will find my ring. Stop hiding my ring, I know you have it.

    It is my precious......

    This is insane. SCO wants to go on a fishing trip, looking for something they claim IBM stole, yet have no proof of. If they don't have proof, what are they doing suing IBM other than to be annoying. Are we (collective) just supposed to believe that they (SCO) are telling us the truth, BLINDLY?

    What a crock. The judge should simply dismiss the case at this point, with prejudice. I can think of at least 15 different reasons to do so. Namely every time SCO gets themselves in a pickle (technical term), they change the subject. At this point, they are suing for infringement that they don't have ANY knowledge of.

    Incredible. Insane. ENOUGH already.
    • > looking for something they claim IBM stole, yet have no proof of

      It's worse than that, now. Among the reasons for requesting this latest delay (from the article) is IBM's

      "failure to produce information that back up SCO's breach of contract and copyright infringement claims."

      In other words, "Fellas, we're gonna delay this thing 'til you cough up something we can use against you. We've got nothin' but time".

      Utterly ridiculous.

      S

    • Re:Analogy (Score:5)

      by Zeinfeld ( 263942 ) on Tuesday September 14, 2004 @04:42PM (#10249799) Homepage
      What a crock. The judge should simply dismiss the case at this point, with prejudice. I can think of at least 15 different reasons to do so.

      I agree, and I think that this is why the IBM lawyers held off making the usually routine motions for dismissal earlier, they knew they would get to a point where they would file one for real.

      As for this upsetting Microsoft, don't be too sure. Microsoft has some very similar exposures to IBM, they also sell software that has a complex and often difficult to track history. They also distribute the guts of UNIX with Windows so they can meet requirements for POSIX compliance.

      SCO is about to go glug glug glug down the toilet bowl of dotcom vile.

  • 18 months (Score:4, Interesting)

    by Reducer2001 ( 197985 ) on Tuesday September 14, 2004 @04:19PM (#10249579) Homepage
    Can you believe it's been 18 months since this started? SCO hasn't shown us one unrefutable piece of evidence in 18 months...

  • Probably a troll or something... (Score:4, Insightful)

    by TyrranzzX ( 617713 ) on Tuesday September 14, 2004 @04:19PM (#10249583) Journal
    So, lemme get this straight, SCO takes money from MS to throw some dirt on linux so stupid corporate businesses think linux is made up of stolen ideas (now there's something that's fucked up), and when the judges say "where's the evidence?" they say "we need more time to find dirt"...

    Sounds like to me they're trying to keep "sco loses case, linux legit" headline from hitting the news...

  • What is happening. (Score:5, Interesting)

    by nattt ( 568106 ) on Tuesday September 14, 2004 @04:21PM (#10249605)
    In the media, all SCO go on about is copyright and IP. But copyright only makes up part of this case. IBM is suing SCO for copyright infringement over it's code in Linux, that SCO is breaking the GPL when distributing, and also selling a licence for. IBM are also asking the judge to rule that it does not break any of SCO's supposodly copyrighted code by putting it's own code in Linux. SCO cannot, and have not shown, or tried to show, in court, any copyright infringement by IBM.

    But.... As SCO tries to obfuscate what it going on, they're arguing contract when the case is copyright, and copyright when the case is contract - pure misdirection.

    SCO says that the AT&T contract is unambigous, and IBM says that the AT&T contract is unambiguous, but they both interperet it quite differently. Even when SCO try to bring up witnesses from the BSDi v USL case, to contradict what IBM is now getting those same witnesses to say, they fail to come up with any meaningful contradictions, and fail to note that the black and white of the contract, side letter, Echo clarification and ammendments say, which is that IBM owns what is IBM's and AT&T own what is AT&T's. IBM cannot release code that is part of the AT&T Unix source code, but IBM can release code that is there's that they also put into Unix seperately. The facts of this case, even without the witnesses say IBM is right.

    SCO still haven't got Novell off their backs, and their contract with Novell plainly doesn't transfer copyrights to SCO, and SCO cannot even find the paperwork to prove that they're successor in interest to that contract, and hence the AT&T contract.

    The current deluge of paperwork from SCO is an attempt to befuddle and confuse, obfuscate and delay the judicial process.

  • Speaking of discredited... (Score:4, Insightful)

    by YU Nicks NE Way ( 129084 ) on Tuesday September 14, 2004 @04:24PM (#10249627)
    IBM's motion depended on the claim that "AT&T didn't mean what SCO says they meant in their derivative works clause". In support of that, IBM presented two witnesses from AT&T who said that AT&T had intended for the clause to be narrowly interpreted. Unfortunately for IBM, SCO had access to the original BSD depositions, where these same two officials testified to exactly the opposite "fact".

    Oops. There goes that argument -- and, very probably, any chance for a summary judgement. The net effect of the contradictory depositions will be to establish beyond doubt or cavil that there is a clear uncertainty about the meaning of the contract, which allows SCO to say "If the clause is relevant to the case, then we must determine what the clause meant. People who signed the document don't even know what it meant, and thought one thing once, and another thing later. Summary judgement is not possible."

    • Re:Speaking of discredited... (Score:3, Informative)

      by Anonymous Coward

      Only thing is that the BSD case was about trade-secrets and v32, which SCO has already admitted isn't a factor in _this_ case respectively released for the world to see under an open license.

      So.. there's only conflict in this testimony if you're easily duped.

    • Re:Speaking of discredited... (Score:4, Informative)

      by Ed Bugg ( 2024 ) on Tuesday September 14, 2004 @04:40PM (#10249784)
      SCO had access to the original BSD depositions, where these same two officials testified to exactly the opposite "fact".

      Actually re-read the excerts. They are very very careful about their wording in the BSD depositions to stay away from stating original works that a licensee adds to their "UNIX", but instead that anything that was derived from SysV.

      I'm sure it's because back then they had a pretty good idea that the virii derivative theory wasn't going to fly and it didn't. In fact it was struck down pretty hard, didn't work then doesn't work now.

    • Oops. There goes that argument -- and, very probably, any chance for a summary judgement.

      Nope. Because SCO made a critical error. They stated the language of the contract was plain and unambiguous. Which IBM also stated. This means the judge can ignore the depositions, and just rule on what the plain and unambiguous language of the contract means.

      Additionally, IBM also says that SCO's interpretation has ridiculous consequences that indicate that the license cannot mean what SCO says. And, they suppo

  • Misquoted... (Score:5, Funny)

    by helmespc ( 807573 ) on Tuesday September 14, 2004 @04:27PM (#10249656)
    SCO was misquoted... the actual quote was... "Our evidence against Linux doesn't exist... oh shit... did I say that out loud... spin doctor that, wouldya?"
  • this has to be slander, or racketeering or something. you can't make accusations and then NEVER back them up! how has this stood so long?

    fortunately I haven't read much about it in mainstream news much recently.

    Cb

  • eh? (Score:5, Funny)

    by Xzzy ( 111297 ) <sether@@@tru7h...org> on Tuesday September 14, 2004 @04:30PM (#10249693) Homepage
    Stay of Execution? Come on, can't we just kill them now!?

  • Best line: (Score:5, Funny)

    by underpar ( 792569 ) on Tuesday September 14, 2004 @04:32PM (#10249715) Homepage
    "[SCO's]Lawyers point to...IBM's failure to produce information that back up SCO's breach of contract and copyright infringement claims."

  • Execution.exe (Score:5, Funny)

    by Tokerat ( 150341 ) on Tuesday September 14, 2004 @04:37PM (#10249755) Journal

    The only thing SCO has that isn't going to be executed is their code...

  • Stoopid (Score:5, Insightful)

    by Virtucon ( 127420 ) on Tuesday September 14, 2004 @04:40PM (#10249787)
    This shows again how royally screwed up our legal system is. We need tort reform because in the end we'll all wind up paying for this stupidity by the courts. SCO has gone after multiple parties in multiple districts, wasting countless hours in our courts and a ton of money on the accused. This ultimately costs us all.

    Whether it's medical malpractice cases, bogus lawsuits or SCO, this will all cost us more in everything we buy. It does now, and it will only get worse unless we put a stop to this legal self feeding excercise.

  • It seems incredible.. (Score:5, Insightful)

    by earthforce_1 ( 454968 ) <earthforce_1@y[ ]o.com ['aho' in gap]> on Tuesday September 14, 2004 @04:40PM (#10249791) Journal
    I am reminded of a quote from Londo Mollari of Babylon 5:

    "Only a fool fights a war on two fronts. Only the heir to the kingdom of fools fights a war on twelve fronts!"

  • AutoZone (Score:2, Insightful)

    by MichaelKaiserProScri ( 691448 )
    The article mentioned that SCO claims that AutoZone moved SCO OpenServer code into Linux during their migration. If they were migrating from OpenServer to Linux, doesn't that imply that they had a valid license for OpenServer? So they bought the code they used. What's the problem?

  • Tomorrow's hearing on Linux issue is still on (Score:5, Interesting)

    by petrofsky ( 702225 ) on Tuesday September 14, 2004 @04:44PM (#10249816)

    The internetnews article says "Originally scheduled for Tuesday, the hearing was pushed back to Oct. 19", but that was just the discovery hearing before the Magistrate Judge.

    The important hearing, on IBM's motion for summary judgment on its tenth counterclaim, is still on for tomorrow, which you can verify at the court's website, both Judge Kimball's schedule [uscourts.gov] and the case history [uscourts.gov] (item 268).

    If IBM's motion is granted, Judge Kimball will issue a declaratory judgment that IBM's copying of Linux does not infringe any SCO copyright. That would imply that anyone else copying any of the Linux versions IBM uses is not infringing any SCO copyrights, either.

    The SCO-IBM disputes over contracts would remain, but the rest of the world needn't concern itself about those.

    You can find the briefing papers on the motion here [scofacts.org]

  • Tort reform, please! (Score:5, Interesting)

    by Mycroft999 ( 809772 ) on Tuesday September 14, 2004 @04:51PM (#10249899)
    So SCO accuses IBM of copying SCO's source code into Linux. Then delays claiming that IBM hasn't given the source code over for examination. This is what happened, isn't it? SCO obviously already has their own code. The Linux code is open source and freely available all over the net. So how can SCO credibly make such a claim? Why, through lawyers of course. God! We are so in need of tort reform.

  • Article Summary (Score:3, Funny)

    by mod_parent_down ( 692943 ) on Tuesday September 14, 2004 @04:58PM (#10249978)
    "...So if Chewbacca is from Endor, you must convict!... er, I mean acquit! Dammit, how did it go again? Your honor, can we have a little more time to uh, research?"

  • They're citing evidence from AT&T vs BSD??? (Score:3, Interesting)

    by Bob_Robertson ( 454888 ) on Tuesday September 14, 2004 @05:23PM (#10250216) Homepage
    I thought that case was sealed? How can they use testimony from that case?

    Bob-

  • Again? (Score:4, Funny)

    by mehaiku ( 754091 ) on Tuesday September 14, 2004 @06:49PM (#10250888) Homepage

    Darl could not sink any lower
    He's tops as a bullshit thrower
    But Darl showed his ass
    Which is now only grass
    And IBM is the lawnmower.

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