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Judge in SCO Case Notes Lack of Evidence 231

Posted by Zonk from the what-are-we-doing-here? dept.
In a follow-up to yesterday's story, Allen Zadr writes "Computer Business Online has an article up today entitled 'Judge astonished by SCO's lack of evidence against IBM'. From the article: "Viewed against the backdrop of SCO's plethora of public statements... it is astonishing that SCO has not offered any competent evidence..." This is exactly what Groklaw has been saying all along, and they have commentary on the news as well."
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Judge in SCO Case Notes Lack of Evidence More

Judge in SCO Case Notes Lack of Evidence

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  • timing? (Score:5, Insightful)

    by Coneasfast ( 690509 ) on Friday February 11, 2005 @02:45PM (#11644575)
    Judge astonished by SCO's lack of evidence against IBM

    in other news, i'm astonished by the delay in reaction! didn't we all know this, hmm, i don't know, the day of $699?

    • Re:timing? (Score:5, Funny)

      by superpulpsicle ( 533373 ) on Friday February 11, 2005 @03:55PM (#11645472)
      In other news, the court transcript has been revealed.

      SCO: IBM did it.

      Judge: IBM did what?

      SCO: They stole our code.

      Judge: Evidence Exhibit A?

      SCO: My dog ate it.

      Judge: IBM do you have anything to propose?

      IBM: Can I buy all of you lunch?

      Judge: Case closed.

      • Judge: Case closed.
        If only. It's encouraging the judge finally asked "where's the beef" but why did he decline the summary judgement?

        • Re:timing? (Score:4, Informative)

          by Ohreally_factor ( 593551 ) on Friday February 11, 2005 @09:44PM (#11648924) Journal
          He declined IBMs motions for now because he's a professional and he knows how to craft an airtight decision that will be impossible to overturn on appeal. IBM will have further opportunity later, after discovery is complete.

          Also, technically it is too early for summary judgment. That can't happen until after discovery is complete.

          Read this analysis [groklaw.net] by Marbux over at Groklaw.

          Note to Zonk: If you're going to be an editor, it would be nice if you actually read Slashdot. At least glance through the stories of the past week before you post submissions.

  • the real surprise (Score:4, Informative)

    by marika ( 572224 ) on Friday February 11, 2005 @02:46PM (#11644589)
    The real surprise is that their shares [nyse.com] are not going down faster. It annoys me.

    • Re:the real surprise (Score:3, Insightful)

      by GigsVT ( 208848 )
      Look how thin the trading is. This is a stock that is well into penny stock land, volume wise. The only thing keeping the price up is that the people who have been suckered into buying SCOX haven't bailed out yet, waiting for a miracle.

      • Re:the real surprise (Score:5, Interesting)

        by pete6677 ( 681676 ) on Friday February 11, 2005 @03:11PM (#11644935)
        The reason for the low volume is that the shares are mostly held by company insiders, such as executives and the parent company Canopy. They will likely hold for a little while longer, but when they dump it will crash all at once. This is definitely not a good stock for a company outsider to hold, since there have been signs of manipulation for at least the last year and a half.
      • Looking at the 5 day graph [1 [yahoo.com]], it looks like someone took a large short position on SCOX yesterday, and bought the shares back in 2 chunks just before and after 11am today.

  • Does it mean (Score:5, Funny)

    by Pan T. Hose ( 707794 ) on Friday February 11, 2005 @02:46PM (#11644595) Homepage Journal
    That my Linux license is worthless?

    • Re:Does it mean (Score:5, Interesting)

      by SlayerofGods ( 682938 ) on Friday February 11, 2005 @03:03PM (#11644830)
      Nope it got some value
      Consider it a free access pass to the class action lawsuit for fraud that will be filed against SCO. ;)
      • Exactly my thoughts on the matter. Whatever is left of SCO is going to get a taste of its own medicine in the courtroom. Except for one thing - the class action filed against it will not be frivolous, and will probably win once it is shown that SCO's licensing system gives you a license to something SCO never owned, and they knew it all along.

        You'd think that one of those thousands of lawyers they've hired would have warned them about this.
        • By the time a possible class action suit gets into the courtroom, IBM will have turned SCO into a smoking crater in Utah, and their won't be any assets left. Do you know of any class action attorneys that will work with no chance of recompense?
    • Actually these must be so rare that they must be collectables.

  • Cue Nelson Munz (Score:4, Funny)

    by 93,000 ( 150453 ) on Friday February 11, 2005 @02:47PM (#11644608)
    Ha-ha!
  • It's a slow news day people - I mean come on, octopus robots, YAWIFI article, and the new Emotio^H^H^H^H^H^HCell processor - this is golden stuff.
    • I'm not trying to troll but am genuinely curious about something. What does the ^H^H^H^H^H^H signify? I've attempted to look it up but have not discovered its secret. Would you be willing to enlighten?
      • Well, you got replies, but no one seems to have answered your question very directly. The ^H is used to create a kind of visible "Freudian slip", usually as a kind of joke. Usually there is a recognizable word before the string of ^H pseudo-characters, so the idea is that the writer made a mistake, backspaced over it, and finally corrected it with the next word. Of course, the real intent is usually to make a joke by contrasting the "mistaken" word to some more polite or diplomatic expression.

        The replies

      • Long, long ago, (back in the 1970s) the terminal frontends for the CDC Cyber 72 system I used to modem into would send the ^ character to indicate the following character was "unprintable" (ASCII values 0-31). For example when you hit <CTRL>C to interrupt a printout, it would actually remotely echo "^C" back to the user.

        Lots of us were using Teletype machines at that time (CRTs were prohibitively expensive, so printing Teletypes were made available to the schools.) Since you can't really "erase" a

  • Yeah, like Louis in Casablanca (Score:5, Funny)

    by The I Shing ( 700142 ) * on Friday February 11, 2005 @02:48PM (#11644619) Journal
    Everyone's reaction sounds like Louis in Casablanca... "I'm shocked... shocked to find no evidence to support SCO's case!"

  • I firmly believe (Score:4, Interesting)

    by robslimo ( 587196 ) on Friday February 11, 2005 @02:48PM (#11644622) Homepage Journal
    that the whole thing is going to disappear. But not before it drags on for a while yet and we'll probably NOT get to see McBride and others charged with any crimes (which I would *love* to see, deserved or not).

    Maybe he'll get caught beating his wife or something ... I can dream.

  • Just another smoke and mirror generator from MS (Score:3, Insightful)

    by JPyObjC Dude ( 772176 ) on Friday February 11, 2005 @02:48PM (#11644625)
    Lets face it. Some people can't see the truth.

    Microsoft knows that the bleeding will not stop, they just are putting duct tape (SCO lawsuite) to prevent a flow of their customer base. It gives them a chance to `change their strategies`.

    [: Only Sheeps Avoid the FireFox :]

  • Some Implications of Judge Kimball's Ruling (Score:4, Informative)

    by anandpur ( 303114 ) on Friday February 11, 2005 @02:49PM (#11644638)
    Implications/Postmortem report at Groklaw [groklaw.net]
    Attorney Reactions to the Kimball Order [groklaw.net]
  • What's more astonishing is that the mainstream press is only now starting to 'get it'...

    Blah.

  • SCO's case basically rested on the assertion that there is only way to write an enterprise-worthy operating system, the "SCO way." Is it any surprise that a copyright lawsuit based on looking for code on this assertion was going to go down in flames? What's next, there's only one way to build a house or bridge?
    • Ignoring, of course, the fact that SCO can't even claim that. They didn't write it. They bought it.

      Hey, anyone want to buy the only way to sell the Brooklyn Bridge? Good price, too!! Only $699

    • "SCO's case basically rested on the assertion that there is only way to write an enterprise-worthy operating system, the "SCO way." '
      What is really funny is that they seem to think that IBM would sign away all the work and features that it did in AIX to SCO! I mean give me a break IBM is the IP king. They do tons of research and I think they file more patents than any other company in the world. To think that they would sign away the rights to their own code is just the height of hubris.

  • Here's what sad... (Score:5, Insightful)

    by GPLDAN ( 732269 ) on Friday February 11, 2005 @02:54PM (#11644702)
    People made money on what is clearly a pump and dump scam. Go to Yahoo finance, and put SCO in and look at the 2 year graph. People were fooled, there was no case, no evidence, no nothing. This was just Darl being instructed to attack through indirect VC funding, and my guess is he made out quite nicely. The next step is for the IRS and the SEC along with the Justice department to jointly open an investigation regarding this conspiracy. This is no different than organized crime running boiler room pump and dump, it just pretended to be legit.

  • Why do cases procede without evidence? (Score:5, Interesting)

    by pavon ( 30274 ) on Friday February 11, 2005 @02:54PM (#11644705)
    I have a question for any legal geeks out there. Why are civil suits allowed to proceed at all without any evidence from the prosecutor? This case hasn't even begun and yet the judge has cooperated with SCO in forcing IBM to spend thousands (if not millions) of dollars, requiring huge amounts of man labor which has drug on for almost two years, and at no point did SCO provide any evidence what so ever of there charges. I understand the need for all the evidence to be brought out during the fact-finding stage, before the actual trial, but why does the fact-finding stage even proceed if the prosecutor does not have any valid evidence to provide. Burden of proof is on them, so it seems to me that they should be required to have significant evidence for their accusations from day one.

    Why is it that civil cases take so much longer than criminal ones? Even the OJ Simpson criminal case finished 16 months after arrest, and people were all up in arms about how long it was dragging on, and yet this case has been going on for two years and it hasn't even go to the court room yet!

    <rant>
    This is the sort of tort reform that we need, reducing the burden of frivolous law suits. Not some bullshit capping of damages. By definition those are not frivolous lawsuits because the people were actually found guilty! That isn't even tort reform at all - it is just changing the penalty on some particular offences, and passing off as a tort reform bill rather than a limited-liability asbestos bill.
    </rant>

    But this is a serious question. There may be consequences that I have not thought of, and I am really interested in hearing why we choose to give the prosecutor so much benefit of doubt.

    • Re:Why do cases procede without evidence? (Score:4, Insightful)

      by Soko ( 17987 ) on Friday February 11, 2005 @03:01PM (#11644808) Homepage
      #include std_IANAL.h

      IF you RTFA, you would see that Judge Kimball is trying to have this case sealed tight at it's end. He doesn't want SCO turning into a legal zombie and winning a chance at appeal, even though it's really dead. He wants them in a hermetically sealed coffin and thrown into the bowels of the earth.

      Soko
      • In some ways it looks to me as if SCO is trying the "Microsoft defense," where you so outrage the judge that he/she makes some remark that can be construed as unprofessional, and then dig it all out on appeal. Microsoft successfully used this tactic against both Sporkin and Jackson. (if I remember the names correctly)

        I just hope the phrase, "it is astonishing that SCO has not" isn't construed as sufficiently unprofessional to justify an appeal.

    • Re:Why do cases procede without evidence? (Score:5, Informative)

      by KiltedKnight ( 171132 ) on Friday February 11, 2005 @03:18PM (#11645007) Homepage Journal
      Why is it that civil cases take so much longer than criminal ones? Even the OJ Simpson criminal case finished 16 months after arrest, and people were all up in arms about how long it was dragging on, and yet this case has been going on for two years and it hasn't even go to the court room yet!

      There's a couple of major differences between civil and criminal cases.

      1. Jury size
        • Criminal: 12 + alternates
        • Civil: 6 (8?) + alternates
      2. Evidence requirements
        • Criminal: very stringent; must be clear-cut
        • Civil: not quite as stringent; can have minor doubts; plaintiff only needs a preponderance of evidence
      3. Verdict requirements
        • Criminal: Jury must be unanimous
        • Civil: 2/3 majority of the Jury

      Things carry on longer in civil suits during the trial phase, but don't frequently take as long in the jury deliberations because of the differences in requirements. You can present most anything you think might help your case in the civil court. In the criminal court, if it's irrelevant or has too many doubts, you don't want to bring it forward, because it makes the prosecutor look desperate.

      • Another important reason is that there's a constitutional right to a speedy criminal trial. Criminal matters take priority over civil ones as a result.

        Civil cases are often have more complex evidence to deal with (OJ notwithstanding) so they tend to have a longer schedule. Add to that getting bumped by the criminal docket, and you can see how civil cases take longer.
    • You're confusing your terms. I know you're not a legal geek yourself, so I'm not flaming. Just for educational purposes...

      Why are civil suits allowed to proceed at all without any evidence from the prosecutor?

      Civil suits don't have prosecutors, they have plaintiffs.

      [A]t no point did SCO provide any evidence what so ever of there charges.

      They did not provide evidence for their claims.

      By definition those are not frivolous lawsuits because the people were actually found guilty!

      They would be found
    • I have a question for any legal geeks out there. Why are civil suits allowed to proceed at all without any evidence from the prosecutor?

      I'll think that you'll get much better informed answers elsewhere [groklaw.net]. The major focus of Slashdot is to sell advertisement, and this is very evident in the tabloid style stories. Groklaw.net quite simply wants to inform and have thoughtful threads,

    • Re:Why do cases procede without evidence? (Score:4, Interesting)

      by cfulmer ( 3166 ) on Friday February 11, 2005 @03:51PM (#11645416) Journal
      First of all, it's 'Plaintiff,' not prosecutor.

      As a policy matter, we've decided that it should be pretty easy to sue somebody -- as long as you can say what you think the other side did wrong, you can get through the door. Once you've gotten through the door, you get the legal power to find stuff out by subpoenaing information, questioning the other side, etc.... That's where things are right now. In general, once this process called 'discovery' has finished, you'd better have something. If you don't have enough information that would allow a jury to conceivably find for you, you're finished. In fact, if the judge determines that there was never anything to your case all along and you were just trying to harass the other side, he can impose sanctions.

      Sanctions for SCO would probably be futile, though -- they're betting the farm on this case. If they lose, there won't be anything left to take.

      Also, previous poster was wrong -- in a civil trial in federal court, jury decisions must be unanimous unless the parties agree otherwise. FRCP 48.

      My guess is that discovery will continue for a while, SCO will try to stretch it out by continually asking for more or complaining that IBM isn't being forthcoming enough. Eventually, discovery will close and the judge will find that no jury would be able to find for SCO, and the case will be closed. SCO will appeal, but the appeals court won't hear it and that will be the end.
    • You ever see any action movies? Usually the movies will have some scene where the chief good guy/bad guy/bad guy's Top Thug will get challenged by some stupid thug/underling/rent-a-cop, usually spurned on by alcohol/his friends/basic stupidity. We then get treated to a scene where the principal character goes above and beyond what is necessary to deal with the situation. They go further than they need, to demonstrate to other minor characters and to the audience: This person is a badass.

      IBM is betting the farm on Linux. This is a new business model if you're younger than about 40 years old; to IBM, free software that sells the service and equipment is how they got big in the first place.

      SCO unwittingly played right into IBM's hands. IBM waited for a good six months until SCO had made a ton of public statements (and Groklaw had started really building up a database -- "open-source legal" if you will -- that helped them in this regard). Then, IBM brought forth the counterclaims.

      The counterclaims are not geared towards destroying SCO, but they will have that effect. The counterclaims are designed so that IBM can use this opportunity to create a substantive legal precedent for the new license that represents the old business model.

      (Editorial comment: It's worth noting that the GPL and FSF are essentially reactionary; Stallman's not so much trying to create a New World Order as to restore the way things were back in the good old days. That's why I say that this new license represents IBM's old business model.)

      What's happened with Wednesday's ruling is that IBM is more than they dreamed to get from this case: Not only is the judge clearly siding with IBM, but the judge is so pissed off with SCO that he will now guide the case towards a substantive legal precedent that not only rescues Linux developers and users from this current legal threat, but will stand the test of appeals and time.

      Much as fair-use advocates go back to the Sony vs. MPAA suit, Linux businessmen in the future will go back to this lawsuit to show why it's perfectly sound and justifiable to use Linux without any worry. This is our Betamax suit.

      SCO (and if you follow the money, Microsoft) really, really shot themselves in the ass with this lawsuit. In attempting to extort money from IBM and give them trouble, they ended up giving IBM the opportunity to get exactly what they wanted. The more that lawyers like Groklaw's marbux and others in the media look at the ruling, the more they realize that not only is SCO about to be destroyed, but Linux and the GPL will soon be ironclad.

      When this court case is done, Linux and the GPL will be bulletproof.

      That's why this particular frivolous lawsuit is taking so long: Once IBM made those counterclaims, it no longer became frivolous. And the price for the frivolity will be dire not just to SCO, but to every company that supported them.

      Over the past year every company remotely connected with SCO has done what they can to distance themselves from them. EV1 apologized for buying Linux licenses. Another company that won Linux licenses as part of a settlement deal had to go on the public record denying that they paid for those licenses. Baystar, the company that put money into SCO on Microsoft's recommendation, backed out and asked for its money back.

      Doesn't sound very frivolous any more, does it?
      • That makes sense, but if IBM doesn't want to end the case, why did they file a motion to dismiss?
        • Oh, okay I RRTFA. IBM didn't file a motion to dismiss they filed a motion for summary judgment. That is where I was confused - SCO was the one that filed a motion to dismiss the counterclaims, and I missread that. Summary judgement would require things to be sealed tight at the ends, like another poster said, while dismissal wouldn't. So the judge is probably right about allowing the discovery to wrap up before issuing a summary judgment.

          That is why the case has continued to go on - because IBM never filed
        • There's a difference between dismissing one party's claims, and dismissing the entire lawsuit. Even if the judge granted IBM's motion and dismissed every single one of SCO's claims, the case would still be open on IBM's counterclaims.
    • I think you misplaced your tags:

      <body>
      <rant>

      three screens of text

      </rant>
      </body>
    • Civil suits are never dismissed by judges without a motion by one side or the other. This case hasn't been dismissed because IBM hasn't moved to dismiss. IBM could say that they want the case over, and SCO would have to present some argument against it, which would have to include some sort of evidence of something. On the other hand, this would lead to the case being dismissed without prejudice (since IBM hasn't demonstrated that SCO doesn't have a case, simply that SCO hasn't presented a case), so SCO (or
    • This is the sort of tort reform that we need, reducing the burden of frivolous law suits. Not some bullshit capping of damages.

      Capping of damages benefits all of us more in the long run in terms of more predictable insurance costs than it hurts us. In terms of probability the vast majority of us are better off with damage caps rather then paying higher insurance rates our entire lives to preserve the outside chance that we may win the legal lottery if our number comes up. However, what the civil system

  • Yeah, well.. (Score:5, Insightful)

    by grasshoppa ( 657393 ) on Friday February 11, 2005 @02:54PM (#11644718) Homepage
    This is exactly what Groklaw has been saying all along, and they have commentary on the news as well."

    It's called due process, and it's something I find vastly amusing.

  • Standard SCO stock oscillation maneuver (Score:4, Funny)

    by Weaselmancer ( 533834 ) on Friday February 11, 2005 @02:55PM (#11644724)

    Betcha SCO is overjoyed. For real! Here's what'll happen next.

    Upon hearing the bad news, SCO's stock will begin to tank. Again. And once it gets low enough, SCO-friendly folks will buy a pile of it.

    And then Darl will release some outlandish press release, saying that they own the rights to American Cheese or the number 6, and the stock will rise again. After all, they just can't make these claims without something up their sleeve, can they? Three days later, everybody sells. And then waits for the next bit of tangy pseudo-bad-news-for-SCO goodness.

    What I want to know is when some judge will finally step in and put and end to this fraud.

  • It'd be great if the companies that paid SCO for "licenses" asked for their money back, since SCO doesn't actually own Unix and the license was basically a fraud. Especially Microsoft's $16 million license. A final twist of the knife.

  • Dupe (Score:5, Funny)

    by PortHaven ( 242123 ) on Friday February 11, 2005 @03:03PM (#11644832) Homepage
    "Slashdot Online has an article up today entitled 'Readers astonished by Slashdot's repost of SCO's lack of evidence against IBM'. From the article:

  • And in more SCO news... (Score:5, Funny)

    by All Names Have Been ( 629775 ) on Friday February 11, 2005 @03:10PM (#11644916)
    The company I work for used to do a lot of business with SCO, and we still get holiday cards and whatnot from them from time to time. This past Christmas, we get a nice generic corporate Happy Holidays!-type thing from them. Except get this -

    It came postage due.

    I kid you not. It's hanging on the wall.
  • Title says it all...

    Is it even remotely possible for SCO to stop these shenanigans and drop this case at this point and still survive as a company for any period?

    Any speculations on what would happen if SCO were to actually say "Oopsey!" at this point and try to just drop the whole thing?

  • Where's the case?!? (Score:3, Insightful)

    by Locke2005 ( 849178 ) on Friday February 11, 2005 @03:42PM (#11645294)
    Despite their public pronouncements, SCO's case against IBM seems to have evaporated down to a claim that IBM continued to distribute AIX after SCO revoked their Unix license. To which IBM is replying "You had no right to revoke our Unix license, you morons!" Did SCO actually have legitimate grounds for revoking the license, or is SCO going to get bitchslapped by the judge for revoking a license they had no right to revoke? It's beginning to look like SCO's legal strategy was concocted by an 8 year old kid! Doesn't making claims in press releases that cannot be substantiated in court invoke the ire of the SEC? SCO executives appear to be on the express train to federal prison. They made ridiculous unsubstatiated claims, and now they can't back down from those claims, because doing so would only be used as evidence that the whole thing was an ill-conceived "pump-and-dump" scheme in the first place! McBride's best case scenario now is that he drags the whole thing out long enough so that he dies before he gets sent to prison...
    • well, the supposed reason for sco revoking their license was initially one of the claims of their suit (in fact, the primary claim) which they have since dropped, i don't think their outlook is very good on that one. if their reason for revoking the license wasn't even good enough to stand up in civil court, i would guess that doesn't count as sufficient grounds, even if they ever did have the authority to do it (which ibm is also disputing).

      i wish i could find the post now, but long, long ago (over a yea
  • The "Slashdot Effect" is now known as repeating yourself over and over again until your webserver crashes.

  • Pattern matching software... (Score:3, Funny)

    by raddan ( 519638 ) on Friday February 11, 2005 @03:54PM (#11645459)
    At its SCO Forum event in August 2003, for example, the company said that using pattern recognition matching technology it had identified 1.1 million lines of code from 1,549 files of derivative works that had been donated to Linux by Unix licensees.

    In other news, SCO will be moving forward using its pattern-matching software to identify travellers' faces during airport screening...

  • I submitted this same story with a funnier headline.

    Oh wait, that one was posted too.
  • That's my question: is this just some throat-clearing, or is it in preparation for making a ruling? (Dismissed with prejudice, one would hope.) Maybe he's giving an indication of his leanings so that he can let SCO back down before he resorts to a method that overarching. Although at this point, I'd think that any slapdown to SCO is well-deserved and long-overdue.

    But it sounds like, without issuing a ruling, he's just muttering to himself.

    • But it sounds like, without issuing a ruling, he's just muttering to himself.

      Judges aren't stupid (OK, well, not usually). This sort of language is highly unusual, since it all looks very bad if his (eventual) ruling runs counter to what he said earlier in the trial. My guess is he's letting SCO know they have one last chance to produce some evidence before he rules against them.

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