Topic: The SCO Group vs IBM - judge takes weed whacker to SCO claims.  (Read 10304 times)

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Offline Nemesis

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This is a case I have been following and this ruling is one that I have awaited and hoped the judge would rule this way.  (Case is followed on Groklaw)

Summary of the case to date:

The SCO Group begins public claims that Linux contains stolen SCO code.  The SCO Group begins to blame IBM and takes IBM to court (claiming billions in damages).  Three years of discovery passes and The SCO Group is finally compelled to specifically say what IBM (allegedly) did.  The details are in a sealed document.  IBM asks for roughly 200 of nearly 300 accusations to be dropped as they are not specific enough and it is too late to become specific (this was the 3rd and final time The SCO Group was ordered by the judge to provide this info - they didn't the first 2 times).

This is about things in the Linux source code which anyone can download an examine freely why does it need to be sealed? 

Link to full article

Link to PDF of judges ruling

Very limited quote below:
Quote
A willful failure has been defined as "any intentional failure as distinquished from involuntary noncompliance. No wrongful intent need be shown." In contrast, "The courts that have concluded that the failure to comply with a discovery order was not willful have emphasized the inability of the eparty to comply with the order."

There is no evidence before the court to indicate that SCO lacked the ability to comply with the court's orders. In fact, given SCO's own public statements outlilned in part supra, it would appear that SCO had more than enough evidence to comply with the court's orders.

In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concetps formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their methods and conceptws in the final submission pursuant to this original order entered in December 2003 ane Judge Kimball's order entered in July 2005.


In essence much of the case is gutted and The SCO Group has been whacked on the knuckles and given warning that they must follow the rules.

Early quotes from the judges in the case "not a single shred of evidence has been presented"  (not an exact quote but made about 2 years into the case and was about The SCO Groups claims of copyright infringement).  "Is that all you've got" when finally presented with The SCO Groups actual complaints against IBM (almost 300 but little in the way of detail to them).

Here is a very good quote from the current ruling:
Quote
The court finds SCO's arguments unpersuasive. SCO's arguments are akin to SCO telling IBM sorry we are not going to tell you what you did wrong because you already know. ... Given the amount of code that SCO has received in discovery, the court finds it inexcusable that SCO is in essence still not placing all the details on the table. Ceritainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole.


This is a good description of much of the case where The SCO Group has been claiming they don't need to tell IBM what they are accused of as IBM (being guilty) knows what they did.  Innocent until proven guilty does not seem to be part of The SCO Groups legal principles (if any).  The SCO Group is following the same "we won't tell you tactic" in another case VS Novel where they won't tell Novell what law they have supposedly broken.

Quote
SCO's Public Statements

As repeatedly noted by IBM, concurrent with SCO's court filed allegations has been SCO's siren song sounding the strength of its case to the public. At a trade show in 2003 SCO shared with the public a presentation outlining SCO's claims against IBM.9 SCO identified four categories of alleged isappropriation:

(1) literal copying ("line-for-line code copied from System V into Linux kernels 2.4+");

(2) derivative works which arose from "modifications of System V created by vendors contributed to Linux kernels 2.4+ in violation of contracts";

(3) obfuscation ("copying, pasting, removing legal notices, reorganizing the order of the programming structures");

(4) non-literal transfers ("methods, structures and sequence from System V contributed to Linux kernels 2.4+").

Finally, in the presentation SCO also gave "one example of many" of line by line copying between the System V Code and Linux kernel code.


The line by line copying shown was (If I recall correctly) copied by an audience member and retyped into a  PC where it was then converted from a wingdings font to a normal font (that was how The SCO Group encrypted it by changing the font).  At which point it was demonstrated to be from BSD and legally copied to Linux.

The SCO Groups theory of derivitive works is "If anything like it ever touches UNIX we control it".  So when IBM migrated things into their Unix from OS2 then to Linux according to the theory IBM lost control over it as the moment it touched Unix it became a derivitive of Unix.  The law does not agree with The SCO group definition.
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Offline Dracho

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #1 on: June 28, 2006, 10:48:44 pm »
I think SCO thought IBM would settle with them and they'd never have to go to court.
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Offline Just plain old Punisher

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #2 on: June 29, 2006, 02:13:14 pm »
Yup. Sounds like a lot of hit air. SCO should have to pay for IBM's legal fees.

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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #3 on: June 29, 2006, 06:30:17 pm »
I think SCO thought IBM would settle with them and they'd never have to go to court.

That is possible but if so then they made one major mistake.  IBMs name and reputation are very valuable to them.  The SCO Group came out loudly claiming the IBM had purposefully stolen from them.  That attack on the name and reputation was something that IBM did not dare allow.  If The SCO Group had presented it as an accident by IBM then they might have been bought off.  Attacking the name and reputation made them vermin to be exterminated.

Yup. Sounds like a lot of hit air. SCO should have to pay for IBM's legal fees.

Nice idea.  One itsy bitsy flaw.  If The SCO Group loses the lawsuit they do a Hindenbuerg and cease to exist very quickly. 

The only things keeping them alive to this point is that they sold some "licenses" to Sun right after Sun recieved their anti-trust payoff from Microsoft and at the same time sold some licenses to Microsoft.  Even that wouldn't have kept them alive except for an investment that was orchestrated by some Microsoft executives (names not yet public to my knowledge).  That gives them enough money for perhaps another year unless Novell (see below) gets their way.

There has been a request by Novell to force The SCO Group to put money in trust to pay them what Novell claims is owed and prevent The SCO Group from spending money that is rightfully Novells.  That would put The SCO Group out of business immediately if allowed. 
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Offline Just plain old Punisher

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #4 on: June 29, 2006, 09:06:22 pm »
I wonder if SCO has anything in the way of assets to sieze.

"Sex is a lot like pizza.  If you're not careful you can blister your tongue". -Dracho

Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #5 on: June 30, 2006, 04:18:21 pm »
I wonder if SCO has anything in the way of assets to sieze.


Much of what it "owns" will likely revert to Novell in the (now inevitable) case of a corporate implosion.  Beyond that not too darn much.

I would like to see them go after the management that orchestrated this farce and jail them after recovering money paid to them. 

Here is another excellent quote from this judge:
Quote
Given the amount of code that SCO has received in discovery the court finds it inexcusable that SCO is in essence still not placing all the details on the table.


Link to a web copy (non PDF) of the ruling.
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Seti Team    Free Software
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Offline Just plain old Punisher

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #6 on: June 30, 2006, 08:09:04 pm »
Well this is a civil case, so you can't put anyone in jail. And since this is a corporation, I doubt you could sieze individual property to pay for corporate debt --- unless you could prove that the corporate officers themselves comitted fraud or broke the law.

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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #7 on: July 01, 2006, 06:22:32 am »
Well this is a civil case, so you can't put anyone in jail. And since this is a corporation, I doubt you could sieze individual property to pay for corporate debt --- unless you could prove that the corporate officers themselves comitted fraud or broke the law.

I won't go into details but there are suspicions of illegal stock market manipulations by the executives.  Also some suspect that the primary purpose of the lawsuit was to allow certain executives to qualify for bonuses connected to stock prices at given times with press releases timed to coordinate with the contract specifications.  Notice that none of this is proven as of this time.

If these suspicions are true then the executives have broken the law (like the Enron executives) and are open to having assets siezed and jail terms. 

There are also those who think that others behind the scenes have directed the lawsuits to benefit other companies not The SCO Group and believe that IBM is trying to pierce the "corporate veil" and allow those companies or individuals to be targeted for damages since The SCO Group assets are not going to cover any damages awarded.

Are any of these suspicions or beliefs true?  I can't say.  I suspect that some of them are.  I find it hard to believe that The SCO Group executives believed that they had mountains of evidence and were ready to go directly to trial before the case even began and then had so little evidence that the judge used the phrase "and its actual evidence-or complete lack thereof" to describe their  evidence as presented.  If they didn't believe it then they destroyed the company in a lawsuit that they knew had no basis in fact and that should open them to personal liability.  Will it?  We'll just have to wait and see.

Some may wonder why I don't believe that the executives truely felt they had a case.  During the lawsuit a report from within The SCO Group was entered as evidence by IBM (acquired by subpoena legitimately).  That report was issued just months before the case started and clearly stated that the investigation of Linux for violating The SCO Groups intelletual properties had found nothing.  I'm not aware of any other evidence being presented to show that they had other sources showing that there were major violations and listing them.  They have publicly referred to an MIT team of "deep divers" who supposedly found code but the identity of these "divers" has not been revealed and neither has their report.  People have searched for them but they remain a mystery - if they existed at all.
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Seti Team    Free Software
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Offline Just plain old Punisher

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #8 on: July 01, 2006, 06:42:35 pm »
This is one of my pet peeves regarding corporations. These paper entities seem to be very short on personal responsibility.

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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #9 on: July 01, 2006, 07:36:30 pm »
This is one of my pet peeves regarding corporations. These paper entities seem to be very short on personal responsibility.

Very much in agreement there.  The corporation is not a person.  It does not break the law the people who run the company break the law and THEY should be held responsible and punished for their crimes.
Do unto others as Frey has done unto you.
Seti Team    Free Software
I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #10 on: July 02, 2006, 07:34:53 am »
I must admit that The SCO Group has been really creative in their arguments.

Quote
As argued by SCO in its opposition, some of SCO’s misappropriated items relate to “negative know how.”

Apparently they claim that when IBM tried to do things in AIX and Dynix and they didn't work that knowledge of what didn't work became proprietary to The SCO Group and IBM can't apply that negative knowledge to anything else or tell people that it doesn't work.  So if an IBM programmer tells Linux coders that a particular approach doesn't work as a result of attempts (by the IBM programmers) to do so in AIX then IBM was providing The SCO Groups proprietary knowledge to Linux.  If IBM also didn't try those things in Linux because they knew it didn't work then they were using The SCO Groups knowledge BUT if they did try those things because there had once been an attempt to apply them to a licensed Unix The SCO Group owned that too.

Catch 22. 
Do unto others as Frey has done unto you.
Seti Team    Free Software
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Offline E_Look

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #11 on: July 04, 2006, 02:37:12 pm »
This is one of my pet peeves regarding corporations. These paper entities seem to be very short on personal responsibility.

Very much in agreement there.  The corporation is not a person.  It does not break the law the people who run the company break the law and THEY should be held responsible and punished for their crimes.

I'm sure you know that the whole idea behind incorporation is to PROTECT the people in the corporation... but only financially; the government didn't want to see lots and lots of ruined people.

Unfortunately, smart litigators have shifted this over time to LEGAL protection from prosecution oftentimes.  I do also feel that U.S. law ought to spell this bit out more clearly.  It's okay to make money legally, or not lose your personal assets over a business failure, but it's NOT okay to do illegal things.

Offline Commander Maxillius

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #12 on: July 04, 2006, 04:08:17 pm »
I must admit that The SCO Group has been really creative in their arguments.

Quote
As argued by SCO in its opposition, some of SCO’s misappropriated items relate to “negative know how.”

Apparently they claim that when IBM tried to do things in AIX and Dynix and they didn't work that knowledge of what didn't work became proprietary to The SCO Group and IBM can't apply that negative knowledge to anything else or tell people that it doesn't work.  So if an IBM programmer tells Linux coders that a particular approach doesn't work as a result of attempts (by the IBM programmers) to do so in AIX then IBM was providing The SCO Groups proprietary knowledge to Linux.  If IBM also didn't try those things in Linux because they knew it didn't work then they were using The SCO Groups knowledge BUT if they did try those things because there had once been an attempt to apply them to a licensed Unix The SCO Group owned that too.

Catch 22. 


WTF?!?  :banghead:
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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #13 on: July 04, 2006, 09:35:10 pm »
WTF?!?  :banghead:


It gets better.  After the deadline for new claims had passed The SCO Group entered some Expert Testimony.  IBM asked to have some of it thrown out on the grounds that it discussed claims that had never been brought up.  In essence IBM says that The SCO Group is trying to sneak in claim through the backdoor.   According to an analysis posted on Groklaw the claimed material was never in the main stream kernel.  There was an attempt by Caldera (NOT IBM!!) to push it in and the kernel maintainers refused.  If you don't know Caldera bought a business from The Santa Cruz Operation and renamed themselves (you'll love this) THE SCO GROUP!!.  So if this is accurate The SCO Group wants damages from IBM for what The SCO Group itself  tried and failed to get put into Linux.

Do unto others as Frey has done unto you.
Seti Team    Free Software
I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
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Offline Just plain old Punisher

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #14 on: July 05, 2006, 05:52:59 pm »
It's like the Twilight Zone for lawyers =P

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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #15 on: July 08, 2006, 06:06:55 am »
It's like the Twilight Zone for lawyers =P

More from the Twilight Zone.

There are other related cases.  One is Redhat vs The SCO Group.  That case is suspended pending the outcome (or major change) in The SCO Group vs IBM case.  Every 90 days The SCO Group and Redhat are supposed to report on the IBM case to the judge.  Here is an excerpt from the report by SCO on the dismissal of claims.

Quote
Re: Red Hat, Inc. v. The SCO Group, Inc., C.A. No. 03-772-SLR

Dear Chief Judge Robinson:

Pursuant to this Court's April 6, 2004 Order, SCO respectfully submits this ninety-day status report to apprise the Court of events occurring since our last update (on April 3, 2006) in SCO v. IBM, Case No. 2:03CV294 (DAK), which is pending before the Honorable Dale A. Kimball in the United States District Court for the District of Utah.

IBM's Discovery Motion

On June 28, 2006, after full briefing and oral argument on IBM's motion to limit SCO's claims related to allegedly misused material, the Court granted the motion in part.

Note how they don't explain what "in part means".  I guess 95% does qualify as in part but I suspect that when Redhat presents their version to the judge it will have a little more detail.  Probably including the "willful" and "inexcusable" comments about The SCO Groups claims by the judge.  The Redhat vs The SCO Group judge may also have some interesting words to say to The SCO Group on relevant details needing to be included in the summary.
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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #16 on: February 23, 2013, 10:12:18 am »
These cases are now essentially over.  SCOG is effectively totally broke in Chapter 7 liquidation and has received permission from the bankruptcy judge to start destroying their business records.  With the records gone so is the ability of the opposition to subpoena the destroyed evidence for their defense.  Too bad IBM won't get the chance to be vindicated at trial.
Do unto others as Frey has done unto you.
Seti Team    Free Software
I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
 FoaS_XC : "Take great pains to distinguish a criticism vs. an attack. A person reading a post should never be able to confuse the two."

Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #17 on: March 30, 2013, 12:27:14 pm »
I was unduly optimistic.  SCO is trying to reactivate their case vs IBM

Quote
The SCO Group, Inc. (“SCO”) respectfully moves for a Status Conference to discuss the Motion to Reopen the Case (Docket No. 1095), which was filed on November 4, 2011, as well as other matters. IBM filed its Opposition Memorandum on November 21, 2011 (Docket No. 1100). SCO filed its Reply Memorandum on December 8, 2011 (Docket No. 1102). Therefore, the briefing on that motion was complete as of December 8, 2011.

After the Motion to Reopen was filed, but before the briefing was completed, Judge Campbell recused herself on November 9, 2011 (Docket 1099). The case was then transferred to Judge Waddoups on November 10, 2011, and the Motion to Reopen the Case (Docket No. 1095) was set for hearing on April 18, 2012, (Docket No. 1101).

On December 9, 2011, after the briefing was complete, Judge Waddoups recused (Docket 1103) and the matter was transferred to Judge Sam who also recused on December 14, 2011 (Docket 1104). The matter was subsequently transferred to Judge Benson, and Judge Benson reset the Motion to Reopen the Case (Docket No. 1095) to April 23, 2012 (Docket No. 1105). On March 31, 2012, the matter was transferred to Judge Nuffer (Docket No. 1106) and on April 2, 2012, all hearings and deadlines were vacated.

SCO filed a Request to Submit for Decision regarding this Motion (Docket No. 1107) on June 14, 2012, seeking a setting to hear SCO’s Motion to Reopen the Case (Docket No. 1095). SCO incorporates here the arguments made in the Request to Submit.

Because SCO’s Motion to Reopen the Case has been pending before the Court since December 8, 2011, and was originally set for a hearing to be held on April 18, 2012, SCO respectfully requests that the Court schedule as soon as practicable a status conference and/or hearing on SCO’s Motion to Reopen the Case (Docket No. 1095).


With all the recusals I'm not sure who the currant judge is (if any is assigned).
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Seti Team    Free Software
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Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #18 on: April 26, 2013, 07:46:51 pm »
 :rofl: It seems that Judge David Nuffer is a bit of a smart ass. :rofl:


Link to full article

Quote
The court has reviewed the parties' submissions and finds that SCO's claims and IBM's counterclaims are inextricably intertwined. Thus, proceeding in the piecemeal manner suggested by SCO would be an inefficient use of judicial and party resources, and potentially could result in inconsistent rulings. Accordingly, the court declines to reopen the case at this time. When the bankruptcy stay is lifted, either party may file a motion to reopen the case. Until then, the case shall remain administratively closed.


SCO (now calling themselves TSG) are in Chapter 7 LIQUIDATION.  The stay shouldn't be lifted until SCO is gone.  So unless someone buys the lawsuit and starts it back up again this is inally over.
Do unto others as Frey has done unto you.
Seti Team    Free Software
I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
 FoaS_XC : "Take great pains to distinguish a criticism vs. an attack. A person reading a post should never be able to confuse the two."

Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #19 on: June 17, 2013, 09:43:43 am »
Link to article

Looks like I was wrong and the case is going ahead.  But not following the procedure that SCO TSG wanted as IBM is going to be allowed to brief on things due to changes caused by the rulings in SCO vs Novell and is going to be allowed NEW summary judgment motions which could end the case before going to trial. 

SCO TSG opposed IBMs request for these on the grounds that SCO TSG is broke and can't afford delays.  If they hadn't caused the years of delays then they wouldn't be totally broke and in a rush now would they?  The judge decided to follow the law instead of screwing over IBM.  So it looks like maybe after a decade things may actually end soon. 
Do unto others as Frey has done unto you.
Seti Team    Free Software
I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
 FoaS_XC : "Take great pains to distinguish a criticism vs. an attack. A person reading a post should never be able to confuse the two."

Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #20 on: February 11, 2016, 07:09:16 am »
The judge has ruled on SCOGs remaining claims - they lose IBM wins.  There still is the final statement on that to be done by month end and IBM has some counter claims still in play.  I suspect IBM will ask to be allowed to drop them without prejudice (so they can relaunch should it be needed) as there is nothing to win from SCOG as they are one thin hair from total death and don't need IBMs help in achieving it. 

A long deserved win for the Good Guys. 
Do unto others as Frey has done unto you.
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I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
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Offline Javora

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #21 on: February 11, 2016, 09:09:31 am »
That was still going 10 years after??!?  I had totally forgot about the lawsuit.  I thought SCO was dead and buried by now.  lol.

Offline EschelonOfJudgemnt

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #22 on: February 11, 2016, 06:02:09 pm »
Yay!

Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #23 on: February 12, 2016, 10:12:20 pm »
They used first Chapter 11 bankruptcy protection (SCO vs Novell was due to start on the Monday and the Bankruptcy began on the Friday) then Chapter 7 Liquidation to slow things down.  There should have been perjury charges laid in my opinion due to when Novell wanted a bond set up for if SCOG lost they would get paid because they feared SCOG going into Bankruptcy first and SCOG told the Judge there was no danger of that. 

In my opinion this was as much a paid for anti Linux scam as anything else. 

Why for example couldn't the judge force public disclosure of the alleged infringing code?  It (if it existed) was already in the public view the only thing that wasn't was the claim of ownership by SCOG.  The only reason I could see for SCOG to object is that as long as it was in Linux they could fight to get copyright payments from Linux users.  That wouldn't be a reason for the courts.  Usually in a case like this a major factor is arranging the end of the infringement (if any) but that was always avoided.

The saddest part of this case is that the CEO of SCOG is now the CEO of another apparently healthy company.  He failed up, at least until he starts more lawsuits.  :(
Do unto others as Frey has done unto you.
Seti Team    Free Software
I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
 FoaS_XC : "Take great pains to distinguish a criticism vs. an attack. A person reading a post should never be able to confuse the two."

Offline Nemesis

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Re: The SCO Group vs IBM - judge takes weed whacker to SCO claims.
« Reply #24 on: March 31, 2016, 08:31:57 pm »
I spoke too soon.  The SCO Group has launched an appeal.  Hopefully it will be declined but then they have higher courts to go to, all the way to the Supreme Court. 

Part of me hopes that it does go all the  way to the Supreme Court (losing of course) just to make a absolute final YOU LOSE to SCO. 
Do unto others as Frey has done unto you.
Seti Team    Free Software
I believe truth and principle do matter. If you have to sacrifice them to get the results you want, then the results aren't worth it.
 FoaS_XC : "Take great pains to distinguish a criticism vs. an attack. A person reading a post should never be able to confuse the two."