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Judge Slams SCO's Lack of Evidence
Posted by
Zonk
on Thu Feb 10, 2005 08:37 AM
from the look-before-you-leap dept.
from the look-before-you-leap dept.
An anonymous reader writes "News.com has reported that the federal judge overseeing the SCO Group's suit against IBM has voiced loud skepticism about SCO's case. "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," said U.S. District Judge Dale Kimball." Commentary available on Groklaw as well.
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it is about time (Score:5, Insightful)
Re:it is about time (Score:3, Interesting)
I think that sums it all up.
Re:it is about time (Score:5, Informative)
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Re:it is about time (Score:4, Insightful)
Assertions can be disputed, facts cannot. The contradictory term "disputed facts" is just more silliness from the folks who gave us that little gem we now hear so often on the evening news: "co-conspirator".
I wager that within ten years the illiterati of the legal profession will manage to push at least one of the following into common usage: co-teammate, co-spouse or co-associate.
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You want to change the system? (Score:5, Insightful)
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Re:You want to change the system? (Score:4, Insightful)
I don't believe that lawyers are always on the same side as the angels, but they're not the ones to blame this time. SCO is the party that brought suit - if there's smackdown to be done, SCO should be first in line...
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Re:You want to change the system? (Score:5, Insightful)
If a competent lawyer said to thier client that they don't have a case, most clients would say ok- forget the whole thing (and either drop the idea or go to a more sleazy lawyer).
Lawyers who have sleazy clients are probably sleazy lawyers. Sleazy client says I want to sue billion dollar corporation for a billion dollars and sleazy lawyers says it will cost you xyz an hour pluss a percentage and I will do everything in my power to get what you want.
I won't say all lawyers are sleazy BUT THIER ARE A LOT OF SLEAZY LAWYERS and if they were not sleazy to begin with, many become so with the mantra of "I am getting paid to do this despite how I feel."
That comment may work for defense lawyers but not for prosecuting civil lawyers.
I would say most lawyers have earned thier reputation and only a few subdivisions of lawyers I have any respect for which are:
criminal defense attorneys
criminal prosecutors
Contract Attorneys (handle mostly wills/corporate agreements/house buying and selling).
Most of the rest are worse than useless.
When Boise was the lead prosecutor against MS, I thought he seemed like a good prosecutor and I thought highly of him.
When he took the Al Gore election tally to the Supreme court I thought him to be doing what he moraly thought was right.
When he decided to accept the SCO case, I lost a lot of respect for him.
Maybe when Boise's firm decided to take the case, SCO assured Boise and boys that there was something legitimate but as this drama unfolds I have a difficult time of thinking of Boise as anything more than a pimp for hire.
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Re:it is about time (Score:5, Insightful)
Much though I agree with the judge's sentiment, I wish he had saved it for his memoirs.
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Re:it is about time (Score:5, Interesting)
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Re:it is about time (Score:5, Interesting)
By allowing this case to proceed to a final conclusion he's making sure it will be SCO's final resting place; the coffin will be nailed, screwed, glued and welded shut. IBM's countersuit for expenses will be swift and merciless.
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What? (Score:5, Funny)
Re:What? (Score:5, Funny)
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Re:What? (Score:5, Informative)
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Obligatory "Princess Bride" Quote (Score:5, Funny)
"What is this word "evidence" you speak of?"
Judge (in the voice of Inigo Montoya): "You keep using that word. I don't think it means what you think it means."
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SCOX pre-trading down (Score:5, Informative)
pre-trading says it's down 5%
Still no reaction... (Score:4, Interesting)
wow (Score:5, Funny)
Loser should pay (Score:5, Insightful)
Imagine if on the other hand SCO had to pay for IBMs entire legal defense to their frivolous lawsuit after they lost. This lawsuit never would have seen the light of day.
Re:Loser should pay (Score:5, Interesting)
Actually, both systems have their ups and downs
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Re:Loser should pay (Score:5, Informative)
Firstly, the judge can refuse to award costs, or can award them such that the winner pays all; if a big company tries a trick like you're suggesting, a judge will probably use this flexibility. Note that under a loser pays system, the judge has to explain why they didn't award costs, or awarded them in a "winner pays" fashion.
Secondly, if you've got a strong case, you can get a good lawyer to work for you for minimal expense; typically, they demand an up-front payment of £500-£1000 (maybe as much as $2500) to touch the case, but then works in the hope of winning the case and getting a big costs award (courts normally award your standard fee schedule, plus credit-card rate interest).
The result is that anyone faced with a case they are likely to lose is going to settle. Where it's genuinely unclear, the courts revert to pay your own costs, and where you have an abusive but technically victorious litigant, they still pay everyone's costs.
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Re:Loser should pay (Score:4, Interesting)
They're dead anyway. Might as well go out with a bang so they will be remembered in Econ text books on what a last ditch effort for funding should be.
Grump
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"Loser pays" would not deter SCO (Score:5, Insightful)
In this case, losing the lawsuit will bankrupt the company, no matter who pays the cost. If you accept bankruptcy as inevitable, and you get all of these benefits with a frivolous lawsuit, where is the deterrent? Unless the SCO gets the royal smackdown from the SEC and a whopper shareholder lawsuit, Darl and his buddies will parachute to safety.
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Re:"Loser pays" would not deter SCO (Score:4, Insightful)
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Re:Loser should pay (Score:5, Insightful)
Depending on state law, you can sue the original plaintiff and attorney if there was no reasonable basis for the original claims, and be awarded your costs for both actions. It is not automatic, and therefore encourages reasonable actions rather than conservative actions. A bigger part of the problem is the gullibility and emotion of juries.
Even if the malicious plaintiff goes bankrupt, their attorney(s) may be on the hook for your costs -- the attorney is supposed to know all the facts that support the plaintiff's case, and provide proper counsel as to the likelihood the plaintiff would have prevailed.
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I'd love to hear the judge say (Score:5, Funny)
How will SCO spin this? (Score:5, Interesting)
Re:How will SCO spin this? (Score:3, Insightful)
"IBM's summary judgement denied!"
They will just ignore the other stuff.
Prep remarks (Score:5, Insightful)
I think a judge has to make these sorts of remarks to withstand appeal of summary judgement. First IBM asked, and received naught. Now the Court is asking. If it receives not, then summary judgement or dismissal with prejudice becomes warrented. IANAL
Re:Prep remarks (Score:5, Informative)
Summary judgment works like this: on the basis of all the pleadings and evidence the court has so far, is there a dispute to a material fact? If not, then the undisputed material facts will form the basis for the court's ruling as a matter of law, sans jury. SCO has to create a dispute as to a material fact, and then it can get to the jury.
It sounds to me like the judge is getting impatient with SCO.
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I think IBM appeals the discovery now (Score:4, Interesting)
Why? Re:I think IBM appeals the discovery now (Score:3, Insightful)
all the judge said is "Your reqest for complete victory before trial is premature, but if SCO doesnt show something more and soon you might get it"
I liked this one... (Score:3, Interesting)
It seems the judge is very angry with SCO at this point but is also trying to remain impartial. It is suprising that in recent days, SCO stock has seen a rally. Why is this?
Manipulation (Score:4, Informative)
It fell to $4.00 in pre-open trading, then promptly jumped up to around 4.60 at the opening bell, expect a close around 4.25 today. It's been consistently following this pattern the last coupla weeks.
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This has been dragged out too long (Score:4, Insightful)
Anybody could claim similar things about any company, negatively affecting that company for months on end. If the claims are finally dismissed as false, damage has still been done to the defending company.
Is this justice?
Re:This has been dragged out too long (Score:5, Interesting)
But apparantly, some judges are taking some action against frivolous lawsuits [newsreview.com] already.
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I'd say it except . . . . (Score:4, Insightful)
For a bunch of slashdot nerds.... (Score:4, Insightful)
Besides we know that M$ is bankrolling all of this, so it was never about making money.
Get the champaign out (Score:5, Insightful)
I am not even a paralegal, but these seem pretty strong words to make by a judge before he has decided a motion. Sounds like starting to count down the K.O.
Why is David Boies famous? (Score:5, Informative)
- for IBM, defending against the US Govt: lost
- for the US Govt, against Microsoft: lost
- for Al Gore, against George Bush: lost
- for SCO, against IBM: on the way to losing
So it seems like he's lost both for and against IBM, and for and against the Government. That's pretty good!ehh? (Score:5, Informative)
He successfully dragged out the case for decades until it became irrelevant and DoJ gave up.
for the US Govt, against Microsoft: lost
He won the case. He was not involved in the appeal, which was still won, despite Bush administration's best efforts. But that didn't stop DoJ from settling with MS on really ridiculous terms.
for Al Gore, against George Bush: lost
Yeah, he lost when 5 republican-appointed supreme court judges outnumbered 4 democrat-appointed judges. What exactly can a lawyer do about that?
for SCO, against IBM: on the way to losing
You're kidding, right? He (or his associates) have managed to drag the case out for two years without a shred of evidence. Think about it, he is handling a case in which there is no chance of winning on merits, even the judge is saying that SCO has no evidence, and yet the case drags on. To SCO delay = win, so in that sense, he is winning.
Make no mistake, SCO has some of the best lawyers.
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SCO's bluff is called (Score:5, Insightful)
Darl McBride and his minions decided to go for the gambling "long-shot" that so many litigants see as an ample victory: getting the defendant to, in a cost-benefit analysis, decide its better to settle out of court.
In SCO's case, their gamble had a nice silver lining: not only could IBM decide to settle, but in doing so (or if others believed they would do so), SCO could then easily extract miliions upon millions in licensing fees from Linux installations during and perhaps after the suit. Clearly, they tried to do this and from the numbers, failed miserably.
So, SCO put all it's money on black to get in the black, and their number is increasingly looking red which of course will put them in the red, and effectively out of business.
That's what happens when you gamble without a whit of common sense.
The real story here... (Score:4, Informative)
TheRegister gives a more newsworthy story here:
http://www.theregister.com/2005/02/10/sco_
Judges _can_ judge (Score:5, Insightful)
But they don't need to end up that way. In many cases, they should end up pretty negative towards one party. That's the basis for judgement.
All dislike is not prejudice. Some is well founded.
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Re:Judge Jackson, back from the grave (Score:5, Informative)
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Re:Judge Jackson, back from the grave (Score:5, Insightful)
Do not blast the litigants until the trial is over.
This isn't quite the same thing. The thing that Judge Jackson got in trouble for was "blasting" Microsoft in an interview outside the courtroom. He was provoked, but the things he said in that interview crossed the line. Judge Kimball is simply doing his job at this point: he's ruling on motions and actually doing SCO a favor by saying that, if they don't produce more evidence, they'll soon be finished. While this was a "blasting" of SCO, the blasting was done where it should be done: not behind the litigant's back where they couldn't reply. It was done in a ruling based on the evidence presented.
I suppose you could say that it is showing bias, but it's bias towards the truth.
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Re:Judge Jackson, back from the grave (Score:3, Insightful)
The problem was that Judge Jackson made his comments to a reporter in an interview outside his duties as a judge.
Judge Kimball is making his comments as part of his rationale of why he is denying SCO's motion. This is more of an objective observation than subjective comment.
Re:About time? (Score:5, Informative)
SCO complained to the magistrate that they needed complete unfettered access to ALL versions of AIX and DYNIX. That is billions of lines of code.
The judge even doubts that SCO has any evidence and stated that quite bluntly in his decision.
As for efficient use of lawyer time read the history of this case. SCO has consistenly asked for and received delays. In my not so humble opinion SCO is trying to get bought out and IBM's NAZGULS are saying no we want your head on our stake.
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Re:What's in this all for SCO? (Score:5, Interesting)
(a) SCO started this because they thought they could get IBM to buy them, making all of the SCO executives rich, but then
(b) when IBM clearly signalled it wasn't going to fall for that old trick, SCO had to keep making a strong public appearance of a credible case in order to avoid getting sued -- or worse, SCO executives jailed by the SEC for some form of stock fraud. I.e., if they lose to IBM in a fair trial the executives can claim they honestly thought they had a case. If they simply give up and admit they never had a case, then what kind of legal attacks from shareholders or the SEC might they they open themselves up to? At this point, mayby Darl is just trying to avoid personal liability and an assault on his own personal assets.
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Re:Evidence ... when will they show us? (Score:4, Funny)
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Split decision, yes. Good for SCO? Hardly. (Score:5, Informative)
1. SCO wanted a dismissal of IBM's 10th counterclaim. Flatly denied, the court says it's relevant to the main case and will be covered.
2. IBM's 10th counterclaim for a finding of non-infringement. Denied, and this one has the "SCO's shown no evidence yet" language. The only reason covered is that discovery's not done yet. The judge doesn't even use the word "deny." He says "the court cannot grant summary judgment to IBM given the posture of this case at the present time. However, IBM is free to renew or refile its motion on its Tenth Counterclaim after the close of discovery."
3. A SCO motion relevant to the 10th CC was rendered moot.
4. IBM trying to strike the motions of Sontag, et al. This one is a loss for IBM, but it's not relevant to the case itself. The judge's ruling indicates that they're relevant only at this point in regards to the recent discovery motions. They have no relevance to the actual facts of the case.
5. & 6. IBM looking for PSJ on the 8th counterclaim and SCO's breach of contract claim. Again, like the 10th, "many of the claims and counterclaims are dependent on the resolution of other claims and that judicial economy is not served in this action by entertaining dispositive motions prior to the close of discovery." No comment as to the validity of the argument.
I count there one minor loss for IBM, one minor loss for SCO, one thing ruled irrelevant, and 3 items delayed. That's a push at worst. Add in the actual text, and it's very clear SCO's in a lot of trouble unless they come up with something in the extended discovery.
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