Posted on 02/09/2005 1:49:58 PM PST by ShadowAce
Here at last is Kimball's ruling on the parties motions involving the contract claims and the kitchen sink motion SCO threw on top. SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims is denied. Period. Their 56(f) Motion is moot. But IBM did better. Here's the list of motions that were denied without prejudice, meaning they can renew or refile when discovery is complete, which I am sure they will:
- Motion for Partial Summary Judgment on Claim for Declaratory Judgment of Non-Infringement
- Motion for Partial Summary Judgment on SCO's Breach of Contract Claims
- Motion for Partial Summary Judgment on its Eighth Counterclaim for Copyright Infringement
The last two aren't even fully briefed and have not yet even been argued. So he's just decided that now is not the time for any dispositive motions. I think we have Judge Wells partly to thank for that, unfortunately, but also keep in mind that motions for summary judgment are decided while construing all facts and making reasonable inferences in the light most favorable to the non-moving party. Judge Kimball is bound by that rule, and so he's decided he wants a complete picture first. IBM's motion to strike materials was denied, because, he says, "the declarations do not pertain to the merits of IBM's motion".
What does it all mean? That he's decided that he can't decide IBM's motions for partial summary judgment until all discovery is done, and he orders that nobody on either side is to file any more dispositive motions until then unless the parties stipulate that the claim is ripe for decision. It's hard to win partial summary judgments, but IBM almost did, and it's clear they will on renewal or refile, at least on the infringement counterclaim, unless SCO puts some evidence on the table. Meanwhile, IBM, by filing, has forced SCO to declare its position, and reveal its lack of evidence, and Judge Kimball has understood that part well.
If IBM's renews their motions, SCO has to submit brand new opposition papers. Or, if IBM elects, it can refile fresh, depending, I suppose, on what comes out in discovery. But as of today, it's clear he isn't leaning toward SCO in some important areas.
You'll like this part. On page ten, Judge Kimball writes:
"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities. Further SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights."Nevertheless, despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment on IBM's Tenth Counterclaim."
He resisted the strong temptation to rule favorably on IBM's Motion only, he writes, because he isn't positive yet that all you need to compare are the Linux kernel and the UNIX code. And he isn't yet persuaded that the discovery concerning AIX and Dynix is irrelevant to the question of whether code in Linux is substantially similar to code in UNIX.
This is a very strong hint to SCO that unless they can come up with some evidence, they are dead in the water as far as Kimball is concerned on IBM's copyright counterclaim. As for the rest, their only hope, which is hanging by a thread at this point -- or a hope and a prayer -- is if they can somehow prove their ladder theory of copyright infringement. That is an uphill climb, if I may be allowed to put it that way.
It's also obvious this judge isn't buying SCO's doublespeak. Read his scathing rejection of their "puzzling" denial that it had ever alleged a claim against IBM for copyright infringement arising out of its use, reproduction, or improvement of Linux. Kimball isn't buying what they are selling here, writing: ". . . it clearly has alleged such a claim." He mentions repeatedly the elusive MIT consultants, quoting from Sontag, Stowell and Darl. All that bragging has come home to haunt them now.
In short, it isn't over yet, but unless SCO can pull a rabbit out of its hat by the end of discovery, the handwriting is on the wall, and I'd say it's looking mighty fine for Linux. Meanwhile, the business world isn't impressed with SCO's claims and businesses appear willing to move forward with Linux no matter what. That article begins, "Linux has won the credibility game..."
A SCO ruling has been announced!
What does this mean?
The judge said that?! Oh, yeah. THAT's gonna leave a mark.
Their stock listing better be sitting on a zero-zero seat.
However, IBM's counter-claim to dismiss was also denied but without prejudice, meaning that can re-file it later once more evidence has been discovered.
Don't you just loooove the law? :)
"Nevertheless, despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment on IBM's Tenth Counterclaim."
A few years ago, my dad ran a company that suffered losses due to extended litigation. It has to make you wonder just how much all this litigation is hurting SCO's bottom line.
Plus, it's not like SCO wasn't making a pretty good product. Open Server was pretty easy to install and use, and fairly reliable. UnixWare was also pretty good.
Personally, I'm one of those that if I'm using a Unix based product, I want to run it at the command line. Windows I'll run from the GUI.
The latest from Jokelaw I see. What, shocking that IBM lost their motion for summary judgement, how many times have we heard various dismissals were imminent now? Looks like IBM will finally have to comply with the discovery, after a year of denials and delays. Too bad for them, the searching through their records by SCO could last another year...
> What does this mean?
"Further SCO, in its briefing, chose to cavalierly ignore
IBM's claims that SCO could not create a disputed fact
regarding whether it even owned the relevant copyrights."
This is the court taking official notice of elephant #2
in the parlor. TSG (SCO) has not, to our knowledge, shown
that the original SCO got any relevant copyrights from
Novell, nor that those (c)s were transferred through the
antecedents of the current TSG to the current TSG.
TSG does not even own the bridge they are suing IBM for
allegedly crossing. Plus they have no evidence that IBM
crossed the bridge. And that's just the stronger parts
of TSG's case.
> It has to make you wonder just how much all this
> litigation is hurting SCO's bottom line.
They are losing money and burning cash.
They probably don't have enough cash to last another year,
unless the deep pockets in Redmond can find another way
to secretly fund the FUD that is TSG vs. World.
Most of the TSG lawyers are on flat-rate now, and
presumably already paid, so you can guess what quality
and quantity of work (esp. appeals) is apt to result.
Simply, the judge would have loved to have thrown out most of SCO's case, but can't until discovery is over.
Thanks for the ping.
You haven't read the ruling. It appears that SCO's tactic of filing a "renewed motion to compel" worked -- it is entirely because of this outstanding new discovery (and grounds for appeal if the motion is granted while that's pending) that the judge denied IBM's motion. But it is very obvious from the judge's comments about SCO that he would have granted it otherwise -- he doesn't think SCO has a leg to stand on in this matter.
Nevertheless, despite the vast disparity between SCO's public accusations and its actual evidence -- or complete lack thereof -- and the resulting temptation to grant IBM's motionOuch! The judge just said granting the motion is premature given the outstanding discovery, and that IBM is "free to renew or refile" after discovery is over.
Looks like IBM will finally have to comply with the discovery, after a year of denials and delays.
Unlike SCO, they've quickly complied with all discovery orders. Look it up. Not giving everything SCO wishes for is NOT the same as failing to comply with a discovery order.
| Too bad for them, the searching through their records by SCO could last another year...
Now comes the judge to award them not only everything they asked for, but some more stuff he thinks they might have accidentally forgotten to ask for. He is, in other words, burying them in discovery materials and putting an end to the game of perpetuating the case by continally asking for more discovery. Boies' legal fees are capped by the Agreement they reached with SCO last year, but that doesn't include "out-of-pocket expenses," which the Outside Experts represent. This is one expensive "victory" for SCO. They're going to need another $15 million or so in cash -- not SCO stock -- to continue this case now. Otherwise, Boies can't analyze the materials. They don't have $15 million. It'll be interesting to see who steps up with the next round of Good Money After Bad for SCO, especially after the judge's kind comments about the evidence they've "found" so far. I like this judge. He has a sense of humor. |
Or so you hope. You sound real proud of crushing this little US technology company, that stands in the way of your one-world government plans. Either that or you're too dumb to know the consequences.
Who's next in line? Oracle? Microsoft? They can all be busted, right? All in the name of free software for the world, you say.
You won't get that far, though. You may not like Utah, but there's some good people there. Guys like Hatch that know what your'e up to. Words getting out, accross the country, guys like Henry Hyde, others you probably sneer at are catching up to IBM's latest tricks. We got you Danger. Whether you skate on these particular charges or not.
I'm just going by what they said.
You should be ashamed of yourself, calling that outfit a technology company. They are a nest of thieving lawyers, and that's all they have been since they started life as Caldera, Inc.
I hope to see them squashed like bugs. They are liars and thieves. Even the judge has now taken to calling them liars.
Someone recently posited the theory that you might be nuts. I will have to take that under advisement.
I'll be back when you're sober.
I see you don't like it when it's pointed out that prominent Republicans are getting wise to you. You have it in for Senator Hatch, since he caught on to your little underground music enterprise. Now Henry Hyde, who has serious questions about the dealings with China you fully support on national security grounds. Don't blame me Danger, I'm not the one at fault, I'm on the right side of these issues, and have been from the beginning. And the more you argue it, the more questions about you, not me, will arise.
I interpret your comments to mean that you now concede that SCO's credibility has been ruined by these comments from the judge, and that you are no longer interested in hurling their spears with glee, lest you also be exposed as one who makes wild charges without any facts.
Instead you would prefer to discuss Digital Rights Management, another of Micrsoft's strategic initiatives for which you are an avid spear-carrier on account of you being such a patriot.
I look forward to watching you be stupid enough to hold Senator Hatch up as someone we should admire, since I know him to be widely despised on Free Republic as the jelly-spined former chairman of the Senate Judiciary Committee who sat there and let Tom Daschle punch him in the nose over and over again on Bush's judicial nominees, while doing nothing about it.
He also spinelessly caved on the firing of Manny Martinez, giving the Democrats a propaganda victory in the "Memogate" scandal that should have sent some Democratic political operatives to jail.
He has been so useless, for so long, on so many subjects, that the phrase, "Don't count your Hatch before he chickens" has become a staple of FR threads.
But you don't know any of that, because you don't pay any attention to the political side of FR. You're here to throw spears for Microsoft, and they've told you he's this Republican they have aligned with their Digital Rights Management initiative, so you think you're going to hold him up and people will go, "Ooh, ahh, Senator Hatch." But not so fast, Mr. Not-a-Freeper. Your token Senator is damaged goods around here. Try to sell him all you want; all you'll do is position yourself as some kind of weird plant from outside who doesn't know RINO from Shinola.
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I don't think you broke the code here, Eagle. SCO isn't allowed to look at IBM's stuff; only their law firm's outside experts can review it. They haven't yet; they've said so.