tell it!
|
| Author | Content |
|---|---|
| grouch Jul 04, 2006 8:30 PM EDT |
"[Sigh of relief? Try something more along the lines of "In your face, SCO!" Possibly some un-informed CIO's were relieved. However, the rest of us fully expected as much. - dcparris]" Add to that: "It's about time." SCOG should have received a smack-down 2 years ago. Even if the court system is not set up for kamikaze-style litigants, it should have at least demanded that SCOG define its case and present some credible evidence of wrong-doing earlier in the case. |
| hiohoaus Jul 04, 2006 9:41 PM EDT |
Agree. Across the board... ...but that's kind of like expecting software companies to justify their products on real, pragmatic foundations instead of marketing glitz, assumptions and monopolies. |
| dinotrac Jul 05, 2006 1:41 AM EDT |
grouch - > it should have at least demanded that SCOG define its case and present some credible evidence of wrong-doing earlier in the case. Ummm.....It actually is pretty early in the case. The claims that were stricken as a sanction for SCO's to comply properly with IBM's discovery requests. You need to understand how the process works. A litigant does not present evidence per se when pleading a case. The pleading presents a claim or group of claims with fact and law scenarios that define a legally addressable harm. The litigant or litigant's attorney certifies that the facts in the pleading are true, but little or no real evidence is presented. That happens later in the process. Prior to discovery, the only basis for striking the claims in a pleading is whether or not the facts alleged in the complaint properly describe a legally addressable harm. That is a practical matter. In civil litigation, your opponent often has the evidence you need. Only after discovery do you know the extent of evidence available to you. The judge, meanwhile, acts more or less as a referee between the two parties. The judge can take a more active role, but, generally, in the US system, does not. Getting claims dismissed, therefore, is a motion-response process. IBM seeks discovery, SCO fails to comply. IBM moves to compel, the court orders SCO to comply. And so on and so forth. In this case, SCO's failures to comply became sufficiently severe IBM stopped asking the court to order compliance, but sought severe sanctions for SCO's failures to comply. The court agreed that SCO's actions were sufficiently egregious to warrant the sanctions IBM sought. It really couldn't have happened much (if any) earlier in the process. |
| grouch Jul 05, 2006 2:13 AM EDT |
dinotrac: >"You need to understand how the process works." I am well aware of how the process works. The process is far from perfect and is subject to gaming by litigants who do not fear the consequences of that gaming. The system mostly assumes that the cost of litigation and the loss of a lawsuit are sufficient deterrents to what it calls "frivolous" lawsuits. The cost of litigation and the risk of loss are merely costs of doing business for certain classes of litigants. The potential payoffs are sufficiently large for them to endure those costs. See, for example, the recent Blackberry case or the JPEG case. (Each of those involved so-called "patent trolls", but the gaming of the system is essentially the same). SCOG depended on the complexity of contract law, copyright law, and the lack of technical prowess of the judiciary regarding software. It appeared to be a convoluted exit strategy involving "pump-and-dump", funding via FUD-for-hire, draining of assets of a dying company into some insider execs' pockets, and a potential litigation lottery payoff if IBM could be convinced to buy them out for silence. The system broke down, IMO, by not requiring SCOG to show some probability that its claims were credible enough to warrant further discovery. Even a cop has to show probable cause. (BTW, several of the permanent, reference pages on Groklaw had my hand in them. Some of them still carry the structure I set up over 2 years ago. The amount of information PJ has to organize is incredible, and volunteers burn out quickly, so if you know some html and have some time to contribute...) |
| dinotrac Jul 05, 2006 3:31 AM EDT |
>The system broke down, IMO, by not requiring SCOG to show some probability that its claims were credible enough to warrant further discovery. Ummm...You could say that's what happened. > Even a cop has to show probable cause. First, a cop is involved in criminal cases. Criminal and civil actions are different, with different standards. Second, the requirements of a well-pled complaint are at least as rigorouse as the cop's probable cause. |
| grouch Jul 05, 2006 4:13 AM EDT |
dinotrac: The only U.S. case involving SCOG that proceeded with any reasonable speed was SCO v. Daimler-Chrysler. In all others, SCOG has been allowed to simply shuffle papers around to create delay. The original schedule for the jury trial in SCO v. IBM was 2005-04-11. SCOG has reaped considerable rewards from the delay and the ambiguity of their claims. IBM was still complaining in their recent motion that they still do not know what the case is about. This is the same complaint AutoZone and Daimler-Chrysler made. (Red Hat was simply put in deep freeze by the Delaware court, which didn't even take the time to figure out it was a totally different case from SCO v. IBM). The requirements of SCOG before subjecting each of these defendants to very high legal costs were too low. See http://www.tarent.de/html/tarent-vs-sco/030612_Questions-and... Notice this part: "On which cause of action was the judicial restraining order decreed? "SCO violated German unfair competition act (UWG) Section 14, which outlaws denigrations (Anschwärzung) of competitors’ goods or services, unless the factual assertions are proven to be true." In essence, the U.S. courts in the SCOG cases have presumed that SCOG's generalized, nebulous claims are true without any support and the consequences are that those against whom the claims were made must suffer much litigation expense over a long period of time regardless of the eventual determination of guilt or innocence. This is justice delayed and denied. There will not be enough of SCOG left to cover those expenses, let alone restore the damage to good will (in the accountant's sense of that term). The U.S. legal system will have to adapt to this relatively new business model of extortion by litigation or threat of litigation. |
| dinotrac Jul 05, 2006 6:27 AM EDT |
Grouch - I am not defending SCO's lawyers. You will notice that the judge granted IBM's motion for severe sanctions -- eliminating most of their claims. I am curious, though, why you think that this case is unique? It may be worse than most, but major litigations between corporations tend to move at a snail's pace, and generate a blizzard of papers. The one innovation I can see is that SCO allowed itself to reach a point that justified such severe sanctions. I suspect they didn't have to the goods for those claims. |
| grouch Jul 05, 2006 6:26 PM EDT |
dinotrac: Compare the recent class action suits against Microsoft for WGA to the SCOG cases. There is some public evidence that indicates WGA was installed without adequate consent, There is no such public evidence that Linux infringes on any copyrights held by SCOG, yet this was part of the basis of SCO v. IBM and SCO v. AutoZone, as seen in the respective complaints and amended complaints. Over 3 years after the first (error-filled) complaint, there is still no evidence that SCOG owns anything anyone would want to infringe. (AutoZone even asked if SCOG were accusing them of infringing copyright on printed manuals, since those were the only copyrights for which there was reasonable certainty of ownership by SCOG). The normal pace of litigation affords time for the litigants to work out a settlement. This is a fair argument against any radical overhaul of the system. However, it would seem logical to require a plaintiff to show ownership before being allowed to proceed with a claim that any rights of that ownership have been infringed. (This would have little effect on the contract dispute, of course). It may be that eventually there will be something like the Grand Jury process for civil litigation involving some amount beyond some magic threshold and copyright, patent or trade secrets. (The recent Grokster decision and the decision vacating the eBay injunction appear to be minor corrective measures with respect to "intellectual property" litigation). What makes SCOG unique is their apparent goal of obtaining delay in the litigation even though they are the plaintiff. They have morphed their cases repeatedly to achieve that goal. This leads to the conjecture that the goal is not to halt any infringing activity, nor to halt any violation of contract, nor to recover any damages resulting from either of those, but rather to annoy, harass and present some message to some audience. |
| jdixon Jul 05, 2006 6:36 PM EDT |
> ...but rather to annoy, harass and present some message to some audience. Said message hopefully having the effect of influencing SCO's stock price for the betterment of inside traders, of course. |
| dinotrac Jul 05, 2006 7:32 PM EDT |
grouch - I don't recall -- is this a jury trial? In a jury trial, the judge does not find facts, which is what you are suggesting. The jury finds facts. The question of whether SCO has the rights they claim -- and they certainly do have certain rights to the UNIX code -- and the question of whether IBM has infringed those rights and violated its contract with SCO are both jury questions if this is a jury trial. |
| dinotrac Jul 05, 2006 7:38 PM EDT |
grouch: >Compare the recent class action suits against Microsoft for WGA to the SCOG cases. I went back and googled this and must admit that I am completely perplexed. What do the WGA suits -- just filed in the last week -- have to do with the SCO case? Completely different facts, completely different law, completely different litigants. And... we have yet to see if they will become a big ugly mess. |
| grouch Jul 05, 2006 9:39 PM EDT |
dinotrac: The point is that of a credible claim. The "litigation lottery" is becoming so popular that there are even guidelines being published for each side of it. I'm surprised there are no patents being filed for that business method. At first glance, the WGA suits could be viewed as simply someone looking for an excuse to dig into Microsoft's deep pockets. However, examining the complaints reveals credible claims being filed. The 2nd one, for example, has: 'Microsoft created serious security, privacy and consumer protection problems that damaged Plaintiffs and the members of the class by installing a "spyware" computer program as a "critical security update" in millions of computers nationwide....' It is easy to show that the software was installed and does exhibit characteristics similar to spyware. There is, therefore, a logical foundation for allowing such a claim to proceed. SCOG has exacted heavy tolls from IBM without any credible foundation. By simply asserting ownership of UNIX, copying of owned code, being successor-in-interest, and violation of contracts, SCOG has been able to use the legal system for purposes other than to be "made whole", for over 3 years. This is where I think the U.S. legal system needs adjustment. SCOG obviously has been unconcerned about the cost of litigation or the prospect of losing. It was a dying company, about to be delisted, anyway. The usual deterrents to frivolous lawsuits simply did not apply. In Caldera's (before becoming SCOG) first complaint, they asserted: " 105. Plaintiff is the owner of unique know how, concepts, ideas, methodologies, standards, specifications, programming, techniques, UNIX Software Code, object code, architecture, design and schematics that allow UNIX to operate with unmatched extensibility, scalability, reliability and security (hereinafter defined as “SCO’s Trade Secrets”). SCO’s Trade Secrets provide SCO with an advantage over its competitors." and " 118. In furtherance of its scheme of unfair competition, IBM has engaged in the following conduct: [...] d) Contribution of trade secret protected software code for incorporation into one or more Linux or other free UNIX-like software releases, intended for transfer of ownership to the general public and distribution to the enterprise software market under the General Public License, with the effect and intent of transferring ownership thereto;" Shouldn't it logically be a minimum requirement that SCOG show ownership of code and the existence of trade secrets within its possession? In their "Fourth Cause of Action", they stated: " 129. IBM has numerous obligations under the AT&T/IBM UNIX Agreements, some of which are detailed below." Shouldn't it logically be a minimum requirement that SCOG show they are the successor in interest to the "AT&T/IBM UNIX Agreements" before SCOG is allowed to haul someone into court over alleged breaches of those "Agreements"? |
| dinotrac Jul 06, 2006 2:50 AM EDT |
grouch: SCO purchased UnixWare from Novell, which is the basis for most of its claim to rights in the Unix source code. But...you are getting ahead of the game. IN their pleadings, SCO set out the basis for their complaint. Proving it is what the trial is all about. IBM - a company with lawyers as good as you will find and pockets as deep as its lawyers are good - has every right to sue SCO for malicious prosecution. Even without an action for malicious prosecution, IBM can seek Rule 11 sanctions against SCO and its lawyers. Rule 11 requires that the plaintiff's attorney signs the complaint with an assertion that the action was filed for a proper purpose, that he/she/they have investigated the claims, and that they are properly based in fact and law, or reasonable interpretations of the law. Rule 11 allows the court to award monetary damages against both plaintiff and plaintiff's attorneys. But... It's fairly rare because plaintiffs are given considerable room to work in the name of preserving their right to redress. |
| grouch Jul 06, 2006 12:01 PM EDT |
dinotrac: SCOG claims all of UNIX, even in their SEC filings, in spite of the clear wording in Schedule 1.1(b) Excluded Assets, in the Asset Purchase Agreement: "A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare." (Of course, the trademark UNIX was transferred to X/Open, now The Open Group). SCOG mostly purchased old manuals, the right to modify, make derivatives, and sell some UNIX systems, and the right to get a nickel out of every dollar they collected in UNIX license fees as errand boy for Novell. Novell v. SCO should settle that, but it was the last case to get fired up. It's that cart and horse sequence thing. I guess what gripes me the most is that they've never had to show they have standing to bring any of these cases. All they've had to do is assert that they have standing. It would be much more fair to insist that a claimant show sufficient evidence before causing the expenditure of millions in legal fees by the defendant. It seems to me that the first step in any suit should be a challenge, by the court itself, to the plaintiff to show standing as asserted in the complaint. For SCOG, this would be showing that they are successor in interest to AT&T and USL, at least, since that is the basis for all of their attacks on IBM, AutoZone, Daimler-Chrysler and the infamous letters. They still haven't shown a paper trail from USL through to themselves; that appears to be set to (finally) come out in the Novell case. |
| dinotrac Jul 06, 2006 12:29 PM EDT |
>I guess what gripes me the most is that they've never had to show they have standing to bring any of these cases. All they've had to do is assert that they have standing. I guess I don't understand the difference. If there were any question of their standing, I can guarantee that IBM would have brought it up. You have to remember...this is not SCO agains Ima B. Smerdlap. The guys on the other side are IBM, and they are very well represented. |
| number6x Jul 06, 2006 12:30 PM EDT |
Why do I picture Blake and Darl riding through the desert, looking over their shoulders, constantly asking each other: "Who are those guys?" |
| grouch Jul 06, 2006 5:52 PM EDT |
dinotrac: >"I guess I don't understand the difference. If there were any question of their standing, I can guarantee that IBM would have brought it up." They have. In fact, that is IBM's third affirmative defense, dating back to 2003-04-20 and carried through the answers to all the amended complaints SCOG has filed since: "SCO lacks standing to pursue its claims against IBM." That has not prevented having to go through all the motions (pun intended) and incredible expense of the litigation for 3 years. Under normal circumstances, the expense of litigation and the consequences of losing would be enough to cause a plaintiff to make certain of their standing before taking action. SCOG is far from normal (see 'Counterclaim-Plaintiff IBM's Second Amended Counterclaims Against SCO', 'Background' to see just how abnormal SCOG is). Why can't standing be established first, before allowing expenses to accrue to a defendant? Why shouldn't more be required than simply a plaintiff claiming standing to bring suit? This hole exists to be exploited by businesses whose sole purpose is litigation. |
| dinotrac Jul 06, 2006 6:47 PM EDT |
>Why can't standing be established first, before allowing expenses to accrue to a defendant? How do you do that in a system like ours, which is adversarial, and relies on non-magesterial judges? And...You say that SCO has not had to establish its standing, but that ibm has challenged the SCO's standing 3 times. Sounds to me that SCO has indeed established its standing to bring suit -- 3 times. |
| grouch Jul 06, 2006 9:10 PM EDT |
dinotrac: >"How do you do that in a system like ours, which is adversarial, and relies on non-magesterial judges?" I don't know. The best I can come up with is that half-hearted suggestion of a sort of grand jury, whose purpose would be to decide if there is a credible case to be brought. That could get complicated and take the system years to iron out the details. As it stands now, though, litigation is a rich man's (or corporation's) game with the threat being sufficient to quash a lot of useful activity. >"And...You say that SCO has not had to establish its standing, but that ibm has challenged the SCO's standing 3 times. Sounds to me that SCO has indeed established its standing to bring suit -- 3 times." No, I said it was IBM's third affirmative defense. That's 3rd out of the 14 filed in IBM's answer to SCOG's complaint, which, after Caldera's error-filled original complaint and all the motions to amend and memoranda in support of motions to amend, etc., ad nauseum, was finalized sometime in 2004. SCOG has yet to establish standing; it's simply asserted it and that must be taken as true until the whole sordid mess gets sorted. By the way, I'm filing suit against you for unlawfully taking my Winnebago on Saturday nights to drive to Nevada to operate a rolling bordello. Unfair business practice, unclean hands, not sharing the proceeds, etc., etc. Shouldn't cost you more than 20 or 30 million to fight the suit. Of course, if you want to work out some kind of settlement, I'm willing to discuss license fees. First motion to compel discovery should hit your desk in about a week. I'll finalize the amended complaint and 2nd amended complaint in a year or two. |
| dinotrac Jul 07, 2006 6:30 AM EDT |
grouch: I welcome your suit but warn that you will have to file it in Illinois. |
| SFN Jul 07, 2006 6:36 AM EDT |
Quoting:if you want to work out some kind of settlement Offer 100% of the profits. |
| dinotrac Jul 07, 2006 7:21 AM EDT |
Heck - I might offer 200%. |
| SFN Jul 07, 2006 7:24 AM EDT |
Retroactive to the start of your Bordello venture. |
| grouch Jul 07, 2006 1:44 PM EDT |
dinotrac: Oh, no, this will be in Federal court, since you allegedly drove the alleged Winnebago allegedly owned by me across state lines to allegedly engage in allegedly unlicensed business activity for alleged ill-gotten gains. Following Federal rules, it shouldn't take you more than 3 or 4 years of motions, memoranda, stipulations and discovery to find out that I've never owned a Winnebago. Of course, that won't be the end of it because we'll still have to go through expert reports, challenges to those reports, hearings on motions and answers, rescheduling, etc., before getting around to a trial where you *might* be allowed to present evidence that I've never owned a Winnebago and shouldn't have been allowed to bring suit in the first place. The rules, as they are now, simply don't imagine a kamikaze plaintiff. |
| dinotrac Jul 07, 2006 8:04 PM EDT |
grouch: Actually, you'll still have to sue me in Illinois (even if you sue in Federal Court, for which you probably don't meet jurisdictional requirements, it would be the 7th circuit in Chicago). I'll fight jurisdiction and/or venue anywhere else. To get very far at all in any effort to sue me elsewhere you must expose yourself to some pretty harsh sanctions, not the least of which is a malicious prosecution suit on my part. Worse, if you fight back very hard, you will inevitably fall into perjury, turning a civil action into a criminal one. The nice part from my standpoint is that I won't have to spend much of anything to make your life miserable, at least not relative to what a corporate defendant would spend. |
| grouch Jul 07, 2006 9:52 PM EDT |
dinotrac: Sure sounds like SCOG v. The Universe to me. None of the conditions or events you describe would prevent the aggravation and expense imposed on a defendant by a plaintiff who is unconcerned about the consequences. Such a litigant is only interested in creating publicity and misery in order to produce a windfall. |
| jimf Jul 07, 2006 10:01 PM EDT |
"Only one thing is impossible for God: To find any sense in any copyright law on the planet."
(Mark Twain) "The first thing we do, let's kill all lawyers." (William Shakeapeare) |
| dinotrac Jul 08, 2006 2:54 AM EDT |
grouch: The reality of the court system is that a plaintiff who doesn't care about the consequences can indeed impose some aggravation on a defendant. In your scenario, however, the aggravation would be pretty mild -- your suit would be dismissed at a very early stage. The SCO case has some legs because it's not carved out of pure fantasy. They do own rights to a version of Unix. They do have a contractual agreement with IBM. IBM has donated source code to LInux. And so on. They are able to make some claims that must be decided by a finder (or finders) of fact. That means, presuming they can keep from getting tossed on other grounds, that they reach the trial phase if they really don't care about the outcome. It's a perverse thing. The vast majority of disputes never go to trial. Most of the time, one party or the other realize they've got a loser and the complaint gets withdrawn or the parties reach a settlement. The cases going to trial tend to be the cases that could go either way. Either SCO thinks they've got a case or they're dumber than they look, and I didn't think that was possible. |
| grouch Jul 08, 2006 3:27 AM EDT |
dinotrac: From SCOG's 2nd Amended Complaint: "Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX. These restrictions on the use and distribution of UNIX are designed to protect the economic value of UNIX." See anything resembling a fact in there (assuming you've read the Asset Purchase Agreement and its amendments)? 3+ years later, there still has been no test of those claims, even though they are the basis of the SCOG lawsuits. For reference, from the Asset Purchase Agreement: '4.16 SVRX Licenses. (a) Following the Closing, Buyer shall administer the collection of all royalties, fees and other amounts due under all SVRX Licenses (as listed in detail under item VI of Schedule 1.1(a) hereof and referred to herein as "SVRX Royalties").' [...] '(b) Buyer shall not, and shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of Seller. In addition, at Seller's sole discretion and direction, Buyer shall amend, supplement, modify or waive any rights under, or shall assign any rights to, any SVRX License to the extent so directed in any manner or respect by Seller. In the event that Buyer shall fail to take any such action concerning the SVRX Licenses as required herein, Seller shall be authorized, and hereby is granted, the rights to take any action on Buyer's own behalf.' "Seller" is Novell; "Buyer" is oldSCO. Somehow, oldSCO's purchase of the ability to collect royalties for Novell, contingent on Novell not deciding to change the SVRX licenses, became Caldera's then SCOG's "all right, title and interest". The history of the case shows that all that was required was for SCOG to assert such fantasies in order to begin exacting a tremendous litigation toll on IBM and others. The entire agreement is long and boring, with 2 pages of "Excluded Assets". http://www.groklaw.net/article.php?story=2003111023050367&mo... |
| dinotrac Jul 08, 2006 6:28 AM EDT |
grouch - You make no sense whatsoever. You complain because there has been not test of SCO claims. What the heck do you think the trial is about? What you actually want is to throw the claims out without testing them. That ain't the way it works. |
| grouch Jul 08, 2006 5:50 PM EDT |
dinotrac: No, that is not what I want. It is SCOG's claim of standing that should have been tested early. If they do not own what they claim they own, they have not been harmed by actions of others with regard to that property. All of their complaints rest upon their assertion of ownership. Scroll 'way back up to the Tarent injunction. It is based on a German law which presumes innocence and forces the bad-mouther to prove otherwise. In the SCOG cases, the presumption is that SCOG's claims of ownership and standing are true and therefore the complaints are credible and triable. |
| dinotrac Jul 08, 2006 6:00 PM EDT |
>It is SCOG's claim of standing that should have been tested early. I guess you could also say that an oncologist should not be allowed to perform a biopsy until he has determined for a fact that you have cancer. |
| grouch Jul 08, 2006 6:07 PM EDT |
Not the same thing at all. If I accuse you of doing some harm to my property, I should first have to demonstrate that I own that property. |
| dinotrac Jul 09, 2006 4:26 AM EDT |
grouch - Sigh. What you want is to have the results of a trial without having the trial itself. |
| sbergman27 Jul 09, 2006 6:41 AM EDT |
Would it be fair to say that the real "culprit" here is that parties ask for, and are given far more time to complete actions than they actually need? And if they ask for it, the Judge almost has to give them a substantial portion of it or risk being overturned on appeal? I mean, the real complaint here is that it is taking so long, isn't it? Sure, SCO is doing a lot of foot dragging, but that can't be too uncommon in these kinds of civil suits. The problem is that foot dragging can be so very, very effective. To take Judge Wells' analogy about being accused of shoplifting at Nieman Marcus, it would be as though security stopped you at the door, and 3 months later you were allowed to ask what they think you did. They have 4 months to respond, and they say, "you shoplifed". You then have to wait 2 months to say "no I didn't". What did I steal. In 7 weeks they say "you know what you stole!" After the Christmas Holidays, you get to say, "no I don't. Show me what it is you think I stole." 6 weeks later, security shows up with an entire set of Nieman Marcus catalogs going back 20 years, plus some catalogs from Sears and J.C. Penney, and says, "it's in there. You find it". And on and on and on... The situation would be absurd enough if it were happening in real time. But happening in "legal time" it's like watching the whole bizarre vignette in *extreme* slow motion. Even if it gets sorted out as "quickly" as possible, it still takes an eternity. |
| dinotrac Jul 09, 2006 7:01 AM EDT |
Steve - I think you've got it -- almost. Add in that we are loathe to deprive any injured party of their right to redress. That is why litigants are allowed to amend pleadings, etc. The same things that protect the rights of pro-se litigants trying to fight a landlord are available to the SCOs of this world. In fact, compared to IBM, you could argue that SCO is on the same footing as a poor tenant suing a rich landlord. Technically, SCO is the landlord claimin property rights, but IBM's the one with deep pockets. Then, of course, complex things are, well, complex. SCO has made a lot of claims and sought a lot of discovery. This stuff has to be worked out. Finally, the very nature of our civil litigation system tends to stretch things out. We do not use inquisitorial judges. Our judges act as referees, and, in non-jury trials, finders of fact. It is the job of the advocates to challenge pleadings, ask questions, etc. When needed, judges can and do exercise their discretionary power, but, generally speaking, they're there to keep things fair. |
| sbergman27 Jul 09, 2006 7:41 AM EDT |
Indeed. That which can be justly used can also be unjustly abused. One other thing. A request for clarification: > Either SCO thinks they've got a case or they're dumber than they look By that, do you mean that you believe that SCO is, in fact, dumb enough to believe they have a case, but that the requisite level of dumbness is of a lower magnitude than the level of dumbness required to pursue the case further if they didn't really think they had a case? |
| dinotrac Jul 09, 2006 7:50 AM EDT |
Steve - I think that's about right. Why would you ever seek to sue a savvy and rich company like IBM if you didn't think you had a case? That's just ludicrous. The vast majority of cases that actually go to trial are cases where each side thinks it's in the right and a neutral party is required to declare the winner. To pursue a case you don't believe in against someone like IBM is absurd. It is ruinously expensive and is nearly certain to fail. |
| jdixon Jul 09, 2006 9:56 AM EDT |
> Why would you ever seek to sue a savvy and rich company like IBM if you didn't think you had a case? Well, you have to understand that they never expected IBM to allow the case to go to court. They expected them to either settle out of court or buy out SCO. That IBM might fight the case never really crossed their minds. > To pursue a case you don't believe in against someone like IBM is absurd. It is ruinously expensive and is nearly certain to fail. Yes, but if: a) you have no real business to start with, b) don't care whether what little business you do have survives or not, and c) are using the free publicity to pump and dump the stock to your advantage, you don't really care, do you? |
| dek Jul 09, 2006 10:11 AM EDT |
jdixon: That IBM might fight the case never really crossed their minds. SCO lawyers didn't do their historical research then. As I understand it, IBM doesn't back down from "nuisance suits" because, if they did, it would be an open invitation to other nuisance suits. Don K. |
| dinotrac Jul 09, 2006 10:52 AM EDT |
>They expected them to either settle out of court or buy out SCO. That IBM might fight the case never really crossed their minds. Remember what I said -- If they didn't think they had a case, it would be absurd to sue IBM. And note, I said a case, not a winning case. Having a case means that you have arguments that you can support and might win. Now, to the gaping hole in your logic: If SCO has no case, there is no incentive for IBM to settle or to buy SCO. SCO's action is not some $5,000 nuisance case. It would take real money to settle or to buy them out. Worse, it wouldn't do IBM much good. If they settle, they implicitly agree that SCO has a case and do untold damage to the very lucrative market they've built in Linux consulting and Linux solutions. They seriously hurt their position vis-a-vis Microsoft. Same is true if they buy SCO. They also have another little problem: Their developers attested to Linus & co. that IBM owned the copyright to all code it submitted for inclusion to the Linux kernel. That sets up some pretty interesting legal liability scenarios if certain people were to come under attack. And, of course, developers would simply remove IBM donations -- including, I presume, all mainframe support, and code replacements as quickly as possible. So, IBM would have dealt its consulting business a major blow, paid a fortune for the privilege, and gotten nothing much in return. If you're SCO, you know all of that before you go to trial. As to manipulating stock prices, that's always a possibility in today's world. But that strategy is a bit hare-brained, too -- not that it stops the current generation of "Masters of the Universe." However -- with so many people to threaten with letters, so many people to sue, IBM is a pretty strange choice, at least without a case. Not only that, insiders have to comply with SEC regulations. They can't just jump in and out of the market on a whim. It's hard to pump those prices long enough for insiders to profit with a baseless case. Investers will pay very close attention. They know that IBM is a tough opponent who doesn't roll over. It's hard to imagine a window lasting long enough to make real money for insiders if SCO has nothing at all. |
| dinotrac Jul 09, 2006 11:01 AM EDT |
dek - Oh, they might settle an occasional slip'n fall, but you are correct. Many companies work very hard to avoid becoming litigation magnets. I once worked in the EEO department of a Fortune 500 company that was fighting a Commisioner's suit by the EEOC. Our policy was to investigate every complaint as quickly and as thoroughly as possible. If our guys did something wrong, we would try to make it right with the complainant before the complaint could be rolled up into the big suit. It was a matter of common sense: if it goes into the Commissioner's action, it strengthens the EEOC case and, at the same time, becomes far more expensive because it will drag on indefinitely. Conversely, if our investigation shows not wrongdoing, we held firm, even if it meant adding to the Commissioner's case. Part of it was tactical: The Commission would have to waste time and resources to investigate a losing case. Part of it was self-defense: The Commisioner's suit was not exactly a secret. If we rolled over every time someone filed a complaint, we'd have been up to our eyeballs in no time. |
| sbergman27 Jul 09, 2006 11:15 AM EDT |
At the risk of walking into conspiracy theorist territory, the discussion has focused on possible motivations for The SCO Group. What is really relevant is the possible motivations of those who make the decisions at The SCO Group. Those motivations may coincide with those of the Corporation itself. Or they may not. I've lost track of who is who as far as SCO's board and principle owners. I think Canopy is out of it now. But although it is publically traded, most shares are held by insiders. Thus there is a great deal of opacity when it comes to SCO and its possible motivations. |
| jdixon Jul 09, 2006 12:09 PM EDT |
> And note, I said a case, not a winning case. Well, I obviously don't think the SCO management team is as smart as they think they are. That said, I think they thought they had a case that would cost more to fight than it would to settle. I do think it's clear they were hoping for a settlement before the case started. Once they case started, they've been doing their best to stall as much as possible, all the while exclaiming to the public about how strong their case is. Thus my conclusions as to the stock manipulations. > But that strategy is a bit hare-brained, too Agreed, but then not much that SCO has done has actually made any sense. They had the Linux source code, and they had already done evaluations on the code. They KNEW they didn't have a case that would hold up. Given that, if you assume any rationality at all on their part, you're left with them trying to shake down IBM and pump and dump their own stock. That may not be the correct analysis, but it's the only rational one I can see. I think everyone here can agree that I usually try to give people the benefit of a doubt, at least in public :), but I can't see any other reasonable explaination for SCO's actions. Of course, it's always possible their actions aren't rational, but that doesn't explain Boies and company taking the case. Tis a puzzlement. |
| dinotrac Jul 09, 2006 1:39 PM EDT |
>They KNEW they didn't have a case that would hold up. I don't believe that. I believe they found enough code similarities to at least raise a question. I think that would be the case no matter how the code got into linux. Some things are so basic that there aren't many different ways to code them. Some code may indeed be the same, by a variety of non-infringing routes. Some code may be taken from SCO, but fall in the first category to such an extend that it is not protectable. All kinds of things can happen that make it look like you have a case, but, when all of the threads are followed, peter out into a pile of nothing. I'm sure that all of the claims that were recently thrown out constituted things SCO thought they might find, but never did. If SCO really entered into this whole affair with nothing, SCO has to answer for it and, in all likelihood, their lawyers. That last is the one that makes me believe there is something there, even if it's a loser. Law firms don't mind if their clients have to pay big judgments, but they damned well don't want to pay out themselves. |
| grouch Jul 09, 2006 6:06 PM EDT |
dinotrac: >"What you want is to have the results of a trial without having the trial itself." No, but you keep misunderstanding me in that same manner. I apologize for not being more clear. SCOG's complaints deal with contracts and copyright, supposedly. These require the full process of litigation to decide, absent a settlement between disputing parties. It is SCOG's standing to bring most of these complaints, especially the ones that have required the tremendous document production by IBM in discovery, that is highly questionable. SCOG claimed ownership of property that they do not, in fact, own. They then based their suits on that claimed property. This is where I think the U.S. legal system must eventually make an adjustment: At some financial threshold, a plaintiff should be required to show the court a credible basis for bringing a complaint, before being allowed to impose litigation expenses on the defendant. This is a completely separate and distinct matter from deciding the merits of the complaints. Go back to my hypothetical suit against you for borrowing my Winnebago for Saturday night interstate commerce. Before allowing me to file suit and therefore imposing a burden of defense on you, the court should require, at least, that I show ownership of a Winnebago, beyond merely declaring it to be so in my complaint. This is not a matter of the merits of my complaint, nor is it a matter of allowing me latitude in developing my case. |
| dinotrac Jul 09, 2006 6:44 PM EDT |
grouch - SCO has stated their basis for standing: They possess certain rights purchased from Novell, and became the successors to Novell's contracts granting those rights to others, including IBM. SCO has claimed that IBM's actions infringe it's rights in the Unixware code, and that IBM has violated the terms of its contract, causing harm. That's quite sufficient to establish standing: a claim that the other party has caused you to suffer a legally redressable harm. As to your hypothetical, I would bet dollars to donuts that SCO attached documentation to the complaint supporting their ownership of Unixware, as well as their contractual arrangement with IBM. If not, that stuff certainly has been made available by now, or the case would have been dismissed outright. You, however, are being disingenuous. You know full well that there is no "deed" in IP. Nothing gets recorded with the county clerk or registered at the Secretary of State's office. The contracts contain the proof of ownership, and they vary with every case. For that matter, even attaching title to the Winnebago is neither sufficient nor necessary to establish your claim. You could post a bill of sale instead of title, or I could dispute your ownership by producing a bill of sale that I had purchased the thing from you. Of course, the title would shift the burden of proof to me and mean I probably can't challenge your standing because, even if I produced a bill of sale, it would require a finding of fact to determine that it is valid. Nothing is ever as simple as we would like it to be when it comes to legal matters. |
| jdixon Jul 09, 2006 7:04 PM EDT |
> Nothing is ever as simple as we would like it to be when it comes to legal matters. A perfect summation of this case to date. |
| grouch Jul 09, 2006 9:03 PM EDT |
dinotrac: >"SCO has stated their basis for standing" There is the problem, in a nutshell. That's all it takes to begin causing major harassment and expense. >"They possess certain rights purchased from Novell, and became the successors to Novell's contracts granting those rights to others, including IBM. SCO has claimed that IBM's actions infringe it's rights in the Unixware code, and that IBM has violated the terms of its contract, causing harm." They claimed far more possessions than they have, but that cannot yet be contested, even after 3+ years of expensive litigation. >"That's quite sufficient to establish standing: a claim that the other party has caused you to suffer a legally redressable harm." There's the problem again. SCOG claims possessions which they do not have, in order to claim legally redressable harms by others. >"As to your hypothetical, I would bet dollars to donuts that SCO attached documentation to the complaint supporting their ownership of Unixware, as well as their contractual arrangement with IBM. If not, that stuff certainly has been made available by now, or the case would have been dismissed outright." You'd lose your dollars. It is not their claim to own Unixware which is relevant. It is their claim to own "all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX." The Asset Purchase Agreement and its amendments show this is not so. >"You, however, are being disingenuous. You know full well that there is no "deed" in IP. Nothing gets recorded with the county clerk or registered at the Secretary of State's office. The contracts contain the proof of ownership, and they vary with every case." No, sir, I am not being disingenuous. Absent a written transfer of copyright, there is no transfer of copyright. In spite of this, SCOG claims ownership of copyright-protected code in SVRX and that IBM "transferr[ed] [...] System V source code" to Linux. SCOG also claims to be successor-in-interest to the contracts between AT&T and IBM, conveniently ignoring IBM's "perpetual" and "irrevocable" license from AT&T, and yet have not shown a paper trail from AT&T to SCOG. At no time was SCOG required to show that their claims of ownership were credible before being allowed to drag any victim into litigation. These matters are left to be decided in countersuits. This is the flaw that also allows extortion by threat of lawsuit. >"You could post a bill of sale instead of title, or I could dispute your ownership by producing a bill of sale that I had purchased the thing from you." That still leaves it up to you to dispute my basis for bringing suit and would not prevent my imposition of harassment and expense. The court itself should ask of me, "Who are you to bring this suit? Are you a party to the contract being disputed? Do you own the property you claim is misused?" These are, of course, as hypothetical as the Winnebago and would not fit every civil suit. I don't claim to have answers to the complex problems; only that recent history shows there are cases filed to extort defendants using property the plaintiff does not truly own. Establishing that a plaintiff has a credible foundation on which to base a claim of redressable harm should not involve anyone but the plaintiff and the court. In SCO v. IBM, this would mean SCOG would have to show a written transfer of UNIX System V copyrights and a trail of contracts leading from AT&T, through USL, through Novell, through oldSCO, through Caldera, through the spin-off of portions of Caldera into what became The SCO Group. If this could be established, then SCOG should have the right to a trial to determine if their complaints are valid. Absent that trail of ownership, it's just me and my fictitious Winnebago, trying to get money for nothing. |
| dinotrac Jul 10, 2006 3:44 AM EDT |
Grouch: It seems to me that opportunity awaits you. When you come up with a way to establish facts without first having to establish them -- ie determine the true intent of contracting parties without having investigate and decide on facts -- you will need to go to Congress and the Supreme Court (they do the rules of civil procedure) and get all Constitutional, legal, and procedural things out of the way. It sounds to me, however, like you want the legal equivalent to that old programmer's joke, the one where the guy is going through a flow chart and reaches a box that says "magic happens". |
| tuxchick2 Jul 10, 2006 3:03 PM EDT |
dino, you make it sound like it's impossible to present evidence that demonstrates that you just might have a case. If I'm reading all this correctly, and my head is spinning trying to follow it all, you're saying that all finding of fact should happen at trial. Grouch is saying you should have to present a basis for your complaint, other than "because I say so." I agree with grouch. This isn't an impossibility, it's common sense. Especially since discovery rules apparently permit the plaintiff to legally steal whatever they want. Civil litigation is a farce. It's broken. The rules should say you can't change your story a zillion times like SCO did, and that you have to show the judge a basis to proceed. There is no reason that a plaintiff like SCO should be allowed to get away with 3+ years of fishing without having to cut bait. What they did is just plain harassment, not to mention incredibly stupid. Darl is just a puppet. Don't know who's pulling the strings, but it all stinks to high heaven, and we don't need a trial jury to tell us that. |
| dinotrac Jul 10, 2006 5:00 PM EDT |
tc - It's not at all impossible. The thing is, grouch is asking for more than that. He wants the findings of fact to be made before going to trial, which is problematic as that is what the trial's all about. You do have to present a stronger basis than "I say so." Every kind of case has specific elements that define it, and you must provide the facts that show your harm is redressable under the legal theory you are pursuing. You also certify that the facts you assert in your pleadings are true. Your lawyer does the same. If you like, you are subject to sanctions. Beyond that, it is more than "I say so." SCO has provided the agreements that form the basis of its case, or IBM and SCO have stipulated to non-disputed facts. But have you seen what grouch keeps doing? He keeps going back to the contract and trying to tell me what it says. That's all well and good, but that is what the trial does. What he's doing is rather like having the prosecution in a murder case peruse the evidence and find the defendant guilty before the trial. The trial, of course, serves no point as the facts have already been found. |
| sbergman27 Jul 10, 2006 6:06 PM EDT |
For my part, I'm perfectly happy to let it take as long as it needs to. The hard part is over. Remember back in the old days when the press reported every word out of Darl McBrides mouth as gospel truth? Remember when the world believed that SCO might be right? Remember when the world cared? Darl and the gang have quieted down. When they do say something it is met with skepticism. And if there was any doubt as to SCO's level of credibility with the press, this latest ruling should nail that down. As to costs, IBM has more money than God, and a passel of lawyers on retainer. It's hard to get too upset there. So, as I say. I'm patient on this one. I hope the judges continue to give SCO every reasonable opportunity. Because when all this is over, I sure don't want to have to go through the whole thing again because SCO got an unfair shake the first time. And when it's over, I don't want there to be *any* question about the result. And besides, it's better than the Jerry Springer Show. :-) |
| dinotrac Jul 10, 2006 7:14 PM EDT |
>As to costs, IBM has more money than God, and a passel of lawyers on retainer. Steve - I think you make an important point here. It's easy to snipe at SCO as being the source of all delay, but, well, IBM is huge, IBM is active, IBM is loaded for bear. I strongly suspect that part of their strategy is simply to litigate SCO into the ground. Kind of like a trainmen's strike I once endured in the Netherlands. Oh sure, nobody walked off the job, but, darned if they didn't make REALLY REALLY sure that we were safe. If something on a train could be inspected, it was. Carefully. I doubt that things would be going quite so slowly if somebody other than IBM were on the other side of the action. And, frankly, I think that's a good thing. IBM has drawn a line in the sand. By the time they're done, nobody is going to want to pull this kind of crap again, at least not if it points in IBM's direction. |
| grouch Jul 10, 2006 7:33 PM EDT |
dinotrac: >"When you come up with a way to establish facts without first having to establish them -- ie determine the true intent of contracting parties without having investigate and decide on facts -- you will need to go to Congress and the Supreme Court (they do the rules of civil procedure) and get all Constitutional, legal, and procedural things out of the way." No, no, no. Establishing SCOG's possession of property on which it bases its complaints does not involve any other party, except, possibly, Novell, in those complaints based on the Asset Purchase Agreement. There is no logical reason to force IBM, Red Hat, AutoZone or Daimler-Chrysler to prove that SCOG does not own what they say they own. Determining whether or not SCOG owns what is necessary for it to own in order to bring the complaints it has filed is a matter that only requires SCOG and the court. It is completely illogical to force a defendant to spend millions of dollars answering a complaint for which there has been no establishment of standing beyond a the plaintiff's claim of standing. The belief that the consequences of making false claims to that effect in the complaint is sufficient deterrent has been proven false. The only case in the whole SCOG mess which deals with the foundational ownership claims of SCOG is the Novell case. The courts should not have allowed any suits to proceed without establishing the ownership of the property that SCOG claims has been misused. The burden of proving ownership should have rested solely on SCOG. The burden should not rest on anyone accused of misusing that property. The accused should only have the burden of defending against accusations of misusing the property *after it is established that the accuser owns the property*. sbergman27: >"As to costs, IBM has more money than God, and a passel of lawyers on retainer. It's hard to get too upset there." The ability of a defendant to pay for litigation should not determine the ability of a plaintiff to sue. This breakage in the system is what leads to intimidation by threat of litigation. It encourages extortion. It encourages Danegeld. |
Posting in this forum is limited to members of the group: [ForumMods, SITEADMINS, MEMBERS.]
Becoming a member of LXer is easy and free. Join Us!