Report Claims SCO Intends to Charge IBM with Fraud 377
An anonymous reader writes "Now it gets interesting. According to this report, it looks as if SCO is preparing to accuse IBM of fraud, and has even opened up a web site to counter the runaway success of Groklaw. SCO's expensive attorneys Boies and Silver are apparently going to file a motion asking the court to unseal most of the documents that are currently under seal, in the hope that certain of IBM's e-mails will be seen by the outside world to tell a story about AIX, Dynix, and Project Monterey that implicates IBM in, well to be blunt, fraud. Groklaw is certain to have its own distinct view about this latest development of course."
Obligatory stock charts. (Score:1, Informative)
It's Boies Schiller (Score:5, Informative)
As a side note, I'm a law student and Boies Schiller is an interesting firm. They are one of the three highest paying firms in the country, with a first year starting salary of 140,000 per year as opposed to 125,000 for the majority of large law firms. They are headquartered in Armonk, NY as opposed to New York, NY.
David Boies is the premier partner. He left another high powered firm, Cravath, to start his own firm (Cravath is strangely enough representing IBM in this case). Since then, some say that Boies Schiller has become the cult of David Boies (hyperbole). I think that both his sister and brother have high management positions in the firm.
Regardless, from what I hear, Boies is one of the best litigators in the country. Cravath has good litigators too. This case will be well argued - and that is a good thing.
Working link (Score:3, Informative)
http://www.linuxworld.com/story/46384_p.htm
Re:arent the US.A judges embarrassed by now? (Score:5, Informative)
Dismissal is when the suit is structurally flawed to begin with (e.g.: SCOX sued Novell for "Slander of Title" but didn't even allege one of the requisite elements for SoT.)
What you're talking about would be summary judgment: there's not even enough evidence that a jury would be needed to weigh it. Since it can take a while to develop evidence through discovery, motions for summary judgment generally wait until the case is well-developed.
IBM now is proceeding to file motions for summary judgment, based in large part on the fact that SCOX hasn't even tried to identify specific facts that would support a charge of either copyright infringement or contract violation.
Slow, frustrating, but like Juggernaught's Carriage it gets there eventually and regardless.
Re:arent the US.A judges embarrassed by now? (Score:5, Informative)
Re:Hi... (Score:4, Informative)
Re:It's Boies Schiller (Score:4, Informative)
Re:Fraud? (Score:5, Informative)
Thats about the funniest thing I've read in a while. I had a heated discussion about this [slashdot.org] exactly a month ago. SCO spews drivel about copyrights to any news media that will listen to them anymore, then they have the gall to get up there in court and claim [groklaw.net] this has nothing to do with copyrights. Mcbride, the death bell tolls for thee.
Re:arent the US.A judges embarrassed by now? (Score:5, Informative)
You are implying that Linux was somehow built on the Unix source code, back in the really old days. This was simply not the case, and even SCO seems to stay away from saying otherwise. Linux has always been an independent development, merely inspired by Unix/POSIX. SCO has been saying that Unix sourcecode was introduced into the Linux kernel between version 2.4 and 2.6 (to improve multiprocessor scalability). This is very recent history and has nothing at all to do with the origins of Linux, more than 10 years ago.
Re:Money (Score:1, Informative)
No, it's Mr. Silver (Score:5, Informative)
This case will be well argued - and that is a good thing.
Not so far -- it's turning into a textbook case in "1001 ways to ruin a case." BSF has contradicted itself not only in its filings in different courts, but even in its filings before the Utah court. It's misrepresented the orders and findings of the Magistrate Judge to the District Judge, with the Magistrate's assistants present.
When Judge Kimball asked Mr. Frei (SCOX Counsel) to explain the contradictions between their filings in Delaware and their filings in Utah, he tried to change the subject. The Judge then pointedly demanded a responsive reply, whereupon Mr. Frei deferred to Mr. Silver as the expert on the Delaware case.
At this point Mr. Silver woke up, tried to change the subject, and finally simply declared that there was no contradiction -- not, as you may imagine, a response calculated to reassure a United States District Judge who'd already commented on those very contradictions himself.
Re:Money (Score:4, Informative)
Much of the money paid so far came from cash reserves as well as the Baystar/RBC dealings.
Re:Money (Score:3, Informative)
Re:Fraud? (Score:5, Informative)
Re:arent the US.A judges embarrassed by now? (Score:3, Informative)
That issue was already settled in the early 1990s, when the previous owners of Unix tried to block the University of California, Berkeley from releasing BSD as open source. The BSD developers had access to the Unix source code throughout its development; Linus Torvalds did not. So that should have been a much stronger case.
However, the case was settled, with BSD remaining as free software (after the elimination and replacement of a couple of disputed source files).
Re:Please Open Your Eyes (Score:2, Informative)
I think some stupid web site will generate some sympathy.
Talking about the website [caldera.com],
I tried it in both Firefox & IE. In firefox, the
"Roll mouse over timeline icons to see summary of each document." doesn't work.
Is this a problem with the website or with Firefox?
Re:I call fraud on SCO's website (Score:2, Informative)
That is totally stupid. Use the title tag for tooltips and the alt tag as ALTernative for the image. The title tag works in all browsers.
I agree (Score:3, Informative)
IBM and SCO agreed to share and develop. If the agreement said either side could pull out at any time (what appears to be the case) then IBM did not commit fraud. If SCO's lawyers approved a contract that didn't lay out that all Sys5 had to be returned if IBM pulled out early, then that is just another bad business decision by SCO. You never share IP without having rock-solid guarantees that you will control that IP. It sounds like IBM entered into Monterey thinking win-win. We either develop a 64 bit Itanium UNIX with SCO, or we pull out and have an upgrade from Sys3 to Sys5.
Of course, if IBM has emails out there that state they NEVER intended to finish Monterey and that the sole purpose of Monterey was to rip off SCO for Sys5, then a court will have to decide if intent overrides the contract as fraud.
Sco Source FAQ (Score:3, Informative)
Isn't this going to anger the open source community?
It shouldn't. We haven't formulated all of our plans for SCOsource yet, but it's important for people to know that SCO is not interested in chasing individual open source developers to collect $149. We want vendors and large commercial users to comply with our IP licenses. The individual open source developer performs a great service to all Linux vendors and customers. We appreciate that and we want them to continue unabated.
It's important to remember that the UNIX shared libraries, owned by SCO, are not Linux products. They are not open source software and they are not covered by the GPL. The shared libraries are UNIX intellectual property, which SCO has owned for years. They are proprietary, licensable intellectual property that we sell. Many Linux environments have been using SCO's UNIX shared libraries because they are a superior product and they make these environments more productive. But until today, there were two ways for users to get the shared libraries:
1. Buy a SCO UNIX or Linux product that included the shared libraries as part of the bundled offering. This is legal.
2. Copy the shared libraries from a disk or through the Internet. In this case someone has unbundled the shared libraries from the SCO offering and opened them up for copying. This is illegal. It is this behavior that we will stop through the creation of SCOsource and today's announcement.
SCO's UNIX shared libraries are not open source code available for free use.
Is SCO going to sue Linux vendors?
SCO is a Linux vendor and a member of United Linux. We have no interest in suing Linux vendors. While we haven't formulated the details of our new SCOsource effort, we're confident that we can work together with other vendors to clear up IP issues in a fair and amicable way.
Two weeks ago an industry publication headlined a story saying SCO was threatening to sue Linux vendors.
The story was wrong. SCOsource is now one day old. We haven't made any plans to sue Linux vendors, and we certainly haven't threatened any vendors. This story was damaging to the Linux community and made assumptions that were incorrect.
But isn't hiring Boies, Schiller and Flexner a clear signal that SCO is getting ready to sue people?
Not at all. SCO is working with BSF for their expertise at dealing with complex legal problems. Resolving intellectual property issues does not automatically mean litigation.
Jury not just for criminal trials (Score:3, Informative)
Juries aren't reserved for criminal trials; all SCO need to get one from where they are now is some "facts in dispute." SCO's goal for a long time seems to have been just that--muddy the waters enough that they can demand a jury, and hope to win by snowing them.
The problem is, they don't seem to have anything that raises a question of fact, just wild unsubstantiated claims and bizare legal theories (which, as I understand it won't get you a jury, since the judge decides questions of law). They've produced no code of questionable ancestry, no expert testimony, no body, no smoking gun, nada, zip, zilch. They can't seem to find even one single thing to point to a say: "Look! We have a case!"
-- MarkusQ
Judge Kimball is starting to get impatient (Score:5, Informative)
That's pretty clear. Judge Kimball is clearly telling SCO's attorneys that they need to present unambiguous evidence of copying, and soon. He's hinting to SCO that unless they come up with something good, he's going to grant IBM's summary judgement motions. He's giving them one last chance to do so.
This is a U.S. District Court judge. He has many other cases, most of them criminal. Here's his court schedule for the week. [uscourts.gov] Sentencing hearings, plea bargains, and a few civil cases. He's not there to listen to SCO's lawyers stall forever. Federal civil procedure doesn't allow that.
Any Lawyers Out There? (Score:3, Informative)
Isn't fraud a criminal act? Doesn't a District Attorney, Attorney General, or some other jurisdictional attorney have to press such charges? If SCO is indeed planning such a charge, don't they have to first convince someone in the *criminal* justice, and wouldn't that be a completely separate process?
Sure it might be a tactic in the current contract dispute to claim fraudulent behavior, but isn't that far from *charging* IBM with fraud?
Re:SCO is commiting Fraud (Score:4, Informative)
I believe that here in Canada, there's a lot fewer frivolous lawsuits, since it's far easier to get losing sides to pay defendant's costs.
"The most common scale of costs is called partial indemnity, which means the successful party will receive approximately 40-50% of its legal costs from the unsuccessful party. Where one party's behaviour has been particularly egregious, the court may award a higher scale of costs, called substantial indemnity, which is in the range of approximately 70-80% of the actual costs incurred."
The courts also have the discretion to NOT award costs, particularly if they feel that the losing claim was legitimate but failed on technicalities, or if there is substantial economic disparity. In the case of SCO, I'm fairly sure that IBM would ask for substantial indemnity.
For more details, check this [blakes.com].
Re:SCO is commiting Fraud (Score:2, Informative)
This prevents people to ask court for meaningles amounts of money.
I think that this mechanism is the same in all contintal legal systems.