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Judge Denies SCO's Ex Parte Motion to Adjourn 206

karvind writes "Groklaw has up an article stating that judge Kimball has issued an order regarding SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint: The Motion is denied. SCO has finally filed its 10Q." From the article: "The court declines to adjourn the hearing. Accordingly, IT IS HEREBY ORDERED that SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint is DENIED. In addition to hearing SCO's Motion to Amend its Complaint and SCO's Motion to Compel the Deposition of Samuel Palmisano at the April 21, 2005 hearing, the parties are hereby NOTIFIED that the court will also hear argument regarding the parties' Proposed Scheduling Orders."
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Judge Denies SCO's Ex Parte Motion to Adjourn

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  • Here [mithuro.com] is the background to the case courtesy of linux.kernel NG.

    For those who do not wish to RTFA, the gist is:

    Briefly, IBM asked the judge to rule that they weren't infringing any of Calsera/SCO's copyrights by distributing Linux. And they further asked for that ruling immediately, before the trial is complete. In such a pre-trial summary judgement motion, the rules are heavily biased in favor of Caldera/SCO; they only have to show a tiny bit of evidence to defeat the motion.

  • 10Q (Score:5, Funny)

    by uberdave ( 526529 ) on Friday April 15, 2005 @05:15PM (#12249381) Homepage
    SCO has finally filed its 10Q.

    You're Welcome.
  • by mcc ( 14761 ) <amcclure@purdue.edu> on Friday April 15, 2005 @05:16PM (#12249388) Homepage
    ...what?
    • by Shalda ( 560388 ) on Friday April 15, 2005 @05:26PM (#12249546) Homepage Journal
      First, one should RTFA. Having RTFA, I'm really only left with one question: WTF? No, really, WTF? I take a very keen interest in the law and the Supreme court in general, but WTF? I propose the Thunderdome method of judicial reform. Two men enter, one man leaves.
    • by TedTschopp ( 244839 ) on Friday April 15, 2005 @05:29PM (#12249582) Homepage
      "What" ain't no country I know! Do they speak English in "What?"

      But on a side note, I Agree... What?
    • by macrom ( 537566 ) <macrom75@hotmail.com> on Friday April 15, 2005 @05:33PM (#12249644) Homepage
      OK, my attempt to explain from what little legal knowledge I have.

      Ex parte orders mean that you're asking for something in your benefit without the other party consenting or defending the decision. Restraining orders, protective orders, etc. are generally ex parte decisions. In other words, the judge hears one side of the arguments and makes a decision for that one side.

      I would imagine that SCO is asking for an adjournment without IBM's consent and without first consulting IBM's attorneys. He must feel that they don't have enough reason to do so without some other kind of trial.
      • "Ex parte orders mean that you're asking for something in your benefit without the other party consenting or defending the decision"

        Damn, all I saw was 'Parte!!!!!'

        I already got the tequila, salt and lemons, it'd be a shame to waste them...
    • SCO still hasn't made any claims against IBM that they can even try to argue. They want to add more claims. They're supposed to argue next Thursday that they should be allowed to add something. They want to delay that argument until June. The court refuses to change the date.

  • GAH! (Score:4, Funny)

    by Derekloffin ( 741455 ) on Friday April 15, 2005 @05:16PM (#12249390)
    Legal Speak! Can... no... understand... Brain Melting!
  • IANAL (Score:5, Funny)

    by pb ( 1020 ) on Friday April 15, 2005 @05:17PM (#12249397)
    Therefore, I have no idea what you just said.

    And, sadly, I read Groklaw too. D'oh!
  • English translation, anyone?
    • Re:Erp... (Score:5, Informative)

      by Zocalo ( 252965 ) on Friday April 15, 2005 @05:34PM (#12249646) Homepage
      SCO asked for yet another delay in the case, the judge said they couldn't have one and the case would proceed as previously scheduled. They've also filed their quarterly financial report for Q1 2005 (the 10Q) bringing themselves back into NASDAQ regulation compliance, so they probably won't now get delisted and their SCOX ticker symbol will lose the red "E" soon.

      That's it. Why this got a front page story I don't know, although it is a sign that this judge at least feels that SCO now has sufficient rope to hang themselves with, so there is that.

      • Also, the judge will add hear two more arguments from SCO on April 21st. Originally he was to hear arguments about the Scheudling Order. Now he will hear two other ones from SCO.

        SCO's Motion to Amend its Complaint: SCO wants to change what evil they claim that IBM did to them. IBM will oppose this because procedurally they should have filed this a year ago.

        SCO's Motion to Compel the Deposition of Samuel Palmisano: SCO wants to depose the CEO of IBM. IBM opposes this because the CEO has no knowledge

      • So actualy we have two unrealted peices of information here:

        1- SCO is in "even" deeper shit from the court case. After talking up the "size" of their case the judge3 is finally asking them to drop their pants and measure up to IBM.

        2- Two nothing to do with 1: They file a peice of paper so that they can be let back into NASDAQ.

        It is nice how the two stories are intertwined so that they make the illusion of one:

        In the 10Q report there is some good stuff like:

        1-Darl McBride makes $265,000 per year.

        2-"The
      • Could you dumb it down a notch?
      • Why it made the front page is that it says, "Judge Denies SCO's..." something. Doesn't matter what. The "editors" thought we might all want to crow about the fact that the judge said "no" to SCO about something. Of course, the fact that everyone promptly shouted "HUH?" instead of "YAY!" gives me hope for the slashdot crowd. :)

        (And actually, SCO is still trying to ask for more delay. What this particular ruling means is that they cannot delay the discussion about whether they get more delay. This fores
    • SCOs screwed.
  • Uh, would someone mind telling me what all this '1337 legal-5p33k means? Does it mean SCO lost all of its cases against Linux users? Does it mean that the judge is forcing SCO to shutdown and give all its assets directly to OSDN? Does it mean that Darl is going to prison for life without parole? What the heck does it mean?!
  • by Lew Payne ( 592648 ) on Friday April 15, 2005 @05:17PM (#12249405) Journal
    Here comes the stampede of SlashDot "laywers"... each with their own [unfounded]
    opinion of what the defendants, judge and attorneys handling the case should do.

    It's better than subscribing to True Detective!
  • by NZheretic ( 23872 ) on Friday April 15, 2005 @05:18PM (#12249414) Homepage Journal
  • So.... (Score:3, Funny)

    by nizo ( 81281 ) * on Friday April 15, 2005 @05:18PM (#12249417) Homepage Journal
    When does the SCO firesale start? Heck I bet an executive chair with Darl's buttprint on it might be a collectible item someday.
    • Re:So.... (Score:3, Funny)

      by Phil246 ( 803464 )
      the only possible use i can think of for a chair with darls buttprint on it would be to make a plaster cast of it, and sell it to linux users worldwide who want to give it a good kicking.
      Since they cant (probably) get the real one.
  • by Kethinov ( 636034 ) on Friday April 15, 2005 @05:20PM (#12249446) Homepage Journal
    The lawyerspeak jargon seems to like to USE caps for verbs. Explanations DENIED. This Slashdot comment has so been POSTED. Thank you, thank you, I'll BE here all day...
    • Actually, Judge Kimball's keyboard is in need of replacement, but the IT guys are waiting for the spare part from Gateway, and then need to put in a change order to get it authorized for scheduling, then need to get it on the calendar, then need to discuss if this is really the problem, and then they'll delegate it to someone who should do the work at the most convenient time.
    • This sort of thing is common in RFCs too. "Clients MUST implement this feature; clients MUST NOT implement this feature; clients SHOULD implement this feature."

      Now all we need to do is get scientists, Internet RFC authors, and lawyers together... "This comment MUST be MODERATED favorably: moderators SHOULD choose PLUS FIVE (+5) insightful." In the future, all professional publications will look like 1337-speak, I guess.

      • This sort of thing is common in RFCs too. "Clients MUST implement this feature; clients MUST NOT implement this feature; clients SHOULD implement this feature."

        That's just to emphasize the very specific meaning the phrases have been given. Just like legal documents might use Client to mean Client as defined in great detail earlier, as opposed to client which is any old client (I suppose).

        • There's a fine line between emphasis and insulting one's intelligence.

          Oh, wait, that might not have been clear enough for you. Let me rephrase it.

          There's a fine line BETWEEN emphasis and INSULTING one's intelligence.

          Got it now? :)
  • by lildogie ( 54998 ) on Friday April 15, 2005 @05:23PM (#12249499)
    Judge Kimball may well ask SCO to eat their motion during oral arguments.
  • by account_deleted ( 4530225 ) on Friday April 15, 2005 @05:24PM (#12249510)
    Comment removed based on user account deletion
  • by Auckerman ( 223266 ) on Friday April 15, 2005 @05:24PM (#12249513)
    SCO wanted to adjorn the court so they could file more complaints. The judge says no to both.

    10Q is a quartly report.

    Samuel Palmisano, the guy wanted to force into deposition, is the CEO of IBM.

    I really do wonder how much longer SCO can survive.
  • Well none of us understand this article but I think the one thing we do get is that SCO lost something else, nothing new there, and hey its better then if they won!
  • by Anonymous Coward on Friday April 15, 2005 @05:28PM (#12249566)

    You might have missed the CC, but Darl McBride had a little meltdown where he blamed Groklaw and PJ for the sorry state of his company.

    See for instance cbronline [cbronline.com]

    I'll let Elcorton [yahoo.com] speak, because he can speak for many:

    Instead of unsupported innuendo against Pamela Jones, why didn't you talk about the fact that both the judge in the IBM case and YOUR OWN COUNSEL have publicly called you a liar for your fraudulent claims of copyright infringement in Linux? You trotted out that miserable little slug Stowell to announce that you wouldn't talk about specifics of pending litigation, which you then proceeded to do when it served your purpose. But you didn't mention that Judge Kimball, who has seen all the sealed filings that you always said proved your case, was "astonished" to find NO COMPETENT EVIDENCE supporting your public pronouncements of all this misappropriated material in Linux. NONE. So tell us again what was in all those sealed filings that the judge overlooked.

    Neither did you mention that your own lawyer Robert Silver said in open court that the AutoZone case has NOTHING TO DO WITH LINUX, after you told your shareholders exactly the opposite in a previous conference call. Is that what you mean be "transparency," Darl?

    And who do you think gives a fuck who Pamela Jones "really" is? Was it Groklaw that found a "vast disparity" between your public pronouncements and actual evidence? No, Darl, that was a United States District Judge. Too bad none of the callers today brought that up.

    Why doesn't your "transparent" web site, the one that has only facts and no spin, mention the fact that your case against Daimler-Chrysler was DISMISSED as to all but one trivial claim, and that your appeal of the dismissal was DENIED months ago? Is all that set in a transparent font?

    You're a better liar but a worse human being than any of the contemptible shills who haunt this board. If you really had anything on Jones you would have used it by now. Who's going to be the next victim of a "heart attack" that later turns out to be a bullet in the head with "no possibility of murder?" Anybody who stands up to that has courage. You disgust me, you cowardly little crooked prick.

    As the cbronline author notes:

    "So who is Pamela Jones? McBride would not say. "We're still digging to the bottom of this. I think once we have all of the facts complete we'll be glad to do [share] that," he said. Perhaps the bigger question might be why SCO, a company McBride claimed is "steadfastly focused on winning in both the court room and in the market place" is so concerned with what a small community web site thinks about its claims."

    Indeed.

    Some think this Groklaw attack was just redirection to get eyes off the bad numbers. I think it's much more than that. This is another sign of utter DESPERATION from the SCOXE crew. They're fucked, they know it... and now it's time to blame someone else.

  • IANAL, can someone explain what this means?

    -d
  • Small typo (Score:2, Funny)

    by Anonymous Coward
    Should read "Ex Pirate Motion."
  • Because I just spent ten minutes or so with Groklaw trying to figure out what this Slashdot article meant, and I still have no idea.
  • 10Q -- HA! (Score:2, Insightful)

    by dthirteen ( 307585 ) *
    The balance sheet of the 10Q shows that without the SCOsource licensing (a.k.a. law suit) they'd be breakeven instead of 3.5 million in the whole.
    • by Anonymous Coward
      That's because without the lawsuit, their $0 of revenues minus their $0 of expenses equals $0 of profit.

    • by GrabtharsHammer ( 852908 ) on Friday April 15, 2005 @06:30PM (#12250283)

      My favourite part of the 10Q filing is in 10Qa, under "Other Assets [sec.gov]".

      It reads:

      Goodwill: --

      As in, none left.

      • Thats hilarious. I wish i points to mod this up with.
      • Re:10Q -- HA! (Score:3, Informative)

        by Zeinfeld ( 263942 )
        Goodwill: --

        Actually this is very significant, goodwill is a measure of the difference between the price paid for a company that is aqcuired and the hard assets of the company. Most IT companies have huge figures for goodwill because they will buy a company for maybe $100 million and its hard assets might be less then $10 million, the rest is the value of the ongoing business.

        In normal circumstances goodwill depreciates at a steady rate but if a company suffers a major financial catastrophe the 'goodwi

  • Why do these cases seem to take for ever? Two years sofar, for evidence that SCO claims it had? In our fast tech world, a case could be solved when the technologies involved are no longer relevant for the world at the time. The worst is that the winner could have lost all potential revenue at that time.
  • Judge Kimball just goatse'd [wikipedia.org] SCO!!
  • How does this relate to end of this trial?

    I want to see sco fail and then go bankrupt like everyone else, but I just want this sore/wort to finally go away and McBride get his prison sentance.

    So far all I can get (I am not a laywer) out of this is motion is that SCO wanted to file more compliants agaisnt IBM and the judge denied it.
    • It doesn't relate directly to the end of the trial. It just means that SCO's motion to further delay things was denied. It doesn't mean that SCO won't try other delay tactics, just that this particular tactic is dead.

      It's kind of like putting a 6 year old to bed. They will kick and scream and fight to stay up as long as they can. They will find excuses to drag things on as long as they can in hopes that you will forget how late it is getting. Eventually though, they always end up going to sleep.
    • by thparker ( 717240 ) on Friday April 15, 2005 @06:13PM (#12250106) Homepage
      So far all I can get (I am not a laywer) out of this is motion is that SCO wanted to file more compliants agaisnt IBM and the judge denied it

      I'm not a lawyer either, but I've worked with enough legal nonsense to explain this. (Though probably not as well as Groklaw.) You slightly missed what happened.

      SCO already had a motion (the "motion to amend") on the table to add one additional claim to their suit. This amendment motion then got scheduled to be heard on April 21, meaning that both parties show up in court and make their arguments. They were also scheduled to discuss scheduling proposals, which I think means that they would hammer out dates on which no new discovery can take place and that kind of thing. This is the motion you were referring to. No decision was made by the judge on it.

      The motion in the article was to adjourn the April 21 hearing, that is to say they wanted to cancel the scheduled courtroom discussion of the motion mentioned above. They said they needed this cancellation because they wanted to add even more claims besides the single new one that would be discussed April 21. I think they also said they wanted to change around the scheduling proposal. The judge ruled against this motion to adjourn -- essentially saying no, we're not going to delay any longer, you are going to show up on April 21 and argue your amendment motion.

      The shorter version -- SCO tried to cancel a court date and stall some more. The judge said no, they need to show up and proceed.

      Note that this only means they have to appear on April 21 and argue on whether or not they can add another claim to their lawsuit. I am pretty sure they will NOT be arguing any aspect of the actual lawsuit on April 21.

  • EXPLANATION HERE (Score:5, Informative)

    by Spy der Mann ( 805235 ) <`moc.liamg' `ta' `todhsals.nnamredyps'> on Friday April 15, 2005 @05:37PM (#12249692) Homepage Journal
    Ex-parte motion:

    "Ex parte refers to a motion or petition by or for one party. An ex parte judicial proceeding is on where the opposing party has not received notice nor is present. This is an exception to the usual rule of court procedure and due process rights that both parties must be present at any argument before a judge."
    (Source: http://www.uslegalforms.com/lawdigest/legal-defini tions.php/US/US-EX_PARTE.htm [uslegalforms.com]
    )

    About the 10-Q:

    "What does it Mean? A quarterly report submitted by all public companies to the SEC in which firms are required to disclose relevant information regarding their financial position. This must be done on time, and the information should be available to all interested parties." (Source: http://www.investopedia.com/terms/1/10q.asp [investopedia.com])

    ---
    In other words...

    This means that SCO wanted to play dirty on Linux er, IBM, by doing legal things on their back, this is, without IBM being present for the legal actions to take place - but judge Kimball didn't allow them to do so. Also, SCO also published their quarterly report.

    (RTFW <-- words of wisdom to slashdotters regarding legalese ;-) )
    • by XorNand ( 517466 )

      This means that SCO wanted to play dirty on Linux er, IBM, by doing legal things on their back, this is, without IBM being present for the legal actions to take place - but judge Kimball didn't allow them to do so. Also, SCO also published their quarterly report.

      Huh? SCO wanted to a break so they could circle their wagons and probably change their strategy. Just because they didn't want to ask permission from IBM to do that, doesn't mean that "they're playing dirty" or doing anything underhanded. Their c

    • by myowntrueself ( 607117 ) on Friday April 15, 2005 @06:22PM (#12250213)
      Thank *you*!

      I tried putting it through babelfish, but apparently that doesn't work with legalese.
      • by oGMo ( 379 ) on Friday April 15, 2005 @07:21PM (#12250795)
        Hmm, babelfish is a good idea. Perhaps some other language, like German, can clear up matters. Since I don't speak German, though, I'll have to translate it back to English again and see:
        The court sinks to shift the audition. Accordingly IT IS HEREBY ORDERED that the ex Parte movement SCO's IS REFUSED for shifting April 21, 2005 argument on SCO's Zusatzantrag its objection. Additional to the auxiliary request of the audition SCO's its objection and SCO's signs it, around the joggle of Samuel Palmisano at April 21, 2005 to force audition, the involved ones COMMUNICATED hereby that the court is also concerning the argument the involved one hears, the orders specifying be suggested.

        So, the court is sinking to shift an audition. This must mean Battleship, because in Battleship you sink things. That ought to Zusatzantrag SCO's joggle. I'm not sure this is clear enough. Let's get a few more languages' opinions:

        As for courthouse? ' Capacity of ? ' Move? ' It goes. As for that following to the , the EX moving SCO' of this Parte of the C$par; It is ordered; April 21st, 2005 years? ' The S SCO' which it moves; Argument; The s-Zusatzantrag is refused objection. SCO' ' In addition to the demand for addition ones of the capacity which you hear; As for S in sign objection and SCO' It does; Is fixing of the contract where the judgment place is proposed or, in the question which everyone's authorized personnel hears discussion theory and thing S April 21 when is, as for you to the power which it should run to 2005 from the Samuel Palmisano densely due to the ? ' Capacity of the , the authorized personnel to transmit.

        Aha! With German, French, and Japanese combines, this appears to be a message... from the FUTURE! Unfortunately some information appears to have been lost, but from this it looks like the courthouse is gone ("As for the courthouse? [...] It goes."), perhaps from battleship? 2005 years in the future, on April 21st, SCO has given an order of some kind. An unknown entity, S (or "Thing S"), is involved. It seems a contract is involved, with a theory of some sort, and they're running from Samuel Palmisano (who has perhaps travelled into the future to take care of this). Unfortunately the last line is garbled, or we'd know exactly how many more people SCO intends to transmit from the future.

        Stay tuned!

  • by grassy_knoll ( 412409 ) on Friday April 15, 2005 @05:46PM (#12249806) Homepage
    From Groklaw:
    http://www.groklaw.net/article.php?story=200504130 91534173 [groklaw.net]

    SCO Asks for Delay on the April 21st Hearing and IBM Gets Really, Really Clear
    Wednesday, April 13 2005 @ 09:15 AM EDT

    There are three new filings in SCO v. IBM, and they are enjoyable to me. First, SCO asks for a delay regarding the April 21st hearing [PDF] on their request to amend their complaint again. This would be the AIX on POWER claim, from what they've leaked to the media. They say their reason for wanting a delay is because they are about to get a ton of code from IBM and maybe they'll find some other things to use to amend the complaint.

    Yeah. Right. Or maybe they read Groklaw and figured out, now that I did all the research for them, that they haven't a ghost of a chance of prevailing on that misguided claim, and so now they would like some time to figure out what to try next.


    So lets see... this means:
    • SCO asks for a delay so they can review all the code they got from IBM.
    • The judge just told them to get stuffed.
    • The trial now enters the "put up or shut up" phase.

    Did I get that right?
    • by Xtifr ( 1323 ) on Friday April 15, 2005 @07:09PM (#12250701) Homepage
      The actual trial doesn't start until the jury is selected. Even though both sides have asked for a jury trial, it's still possible for the case to be resolved before it ever gets to trial.

      We're currently in the "discovery" phase, where both sides are supposed to show each other their evidence and take depositions and whatnot. This is where SCOG is balking, since they apparently have no evidence.

      Once discovery is over, there will be a period where both sides continue examining the evidence they've received and prepare for trial. This is also where both sides bring up motions for summary judgement on points where they think the evidence is indisputably in their favor. Look for IBM to gut SCOG's case during this period. Look for SCOG to continue everything they can think of to delay the start of this phase.

      Finally, if there's anything left of the case, the trial proper will start. Look for IBM's patent claims against SCOG, and possibly their GPL claims as well, to be resolved here. Look for the people in charge of SCOG's bankruptcy proceedings to be managing the defense. :)

      Finally, as a former customer of the Santa Cruz Operation, I would like to remind people that the company currently called The SCO Group bears no relation. The company suing IBM is a Linux company that was named "Caldera" until a couple of years ago. There's a charming irony there, since "Caldera" basically means, "a smoking hole in the ground," which is what we expect Caldera/SCOG to be fairly soon. :)
  • In English Please? (Score:3, Insightful)

    by eno2001 ( 527078 ) on Friday April 15, 2005 @05:49PM (#12249833) Homepage Journal
    What the hell does this mean? Did SCO try to pull a fast one and get stopped? Or is SCO attempting to give up because they know they don't have a case but the judge is putting their feet to the fire? Seriously, what's with the legal mumbo-jumbo on /.? We aren't legal professionals. Just give it to us in plain english for god's sake!
    • What I think it means is the judge to SCO to stop trying to change the case everytime they get shot down and get on with proving thier case with the evidence they have to hand.
  • by Anonymous Coward
    I haven't seen such gobbledy-gook since the gal I was stalking filed a court injunction against me.

    Hey, I'm a simple, dumb MSEE here. How about reposting this thing using English, not Klingon.
  • Translation (Score:5, Informative)

    by Phocas ( 147850 ) on Friday April 15, 2005 @06:14PM (#12250113)
    Translation from legalese into English:

    Judge Kimball issued an order // Judge Kimball made a decision

    regarding SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend its Complaint // A complaint is the document you use to start a lawsuit in federal court - it states what your claim is about. SCO wanted to revise its complaint in some way. April 21, 2005 was the date set for the parties to argue over whether it should be allowed to amend. SCO asked the court (lawyers say "brought a motion") to adjourn (i.e. postpone) that date. "Ex parte" means they didn't notify the other side that they were asking for a postponement - normally not a good idea. Despite the other side not being present, SCO still lost.

    This is a purely procedural ruling. All it means is the arguments over whether SCO can amend will go ahead on April 21, 2005 as scheduled.

    "Groklaw has up an article stating that judge Kimball has issued an order regarding SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint: The Motion is denied. SCO has finally filed its 10Q." From the article: "The court declines to adjourn the hearing. Accordingly, IT IS HEREBY ORDERED that SCO's Ex Parte Motion to Adjourn the April 21, 2005 Argument on SCO's Motion to Amend Its Complaint is DENIED. In addition to hearing SCO's Motion to Amend its Complaint and SCO's Motion to Compel the Deposition of Samuel Palmisano at the April 21, 2005 hearing, the parties are hereby NOTIFIED that the court will also hear argument regarding the parties' Proposed Scheduling Orders."

  • by Mustang Matt ( 133426 ) on Friday April 15, 2005 @06:34PM (#12250333)
    You can't trick me, I saw the research paper generator. I even learned a bit by reading some sample papers, however, this story reaks of randomly generated legal speak.
  • IBM says: (Score:2, Funny)

    by mkiwi ( 585287 )
    "All your case are belong to us!"

Intel CPUs are not defective, they just act that way. -- Henry Spencer

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