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Judge Calls SCO On Lack of Evidence 187

Posted by Zonk
from the like-it-is-judge-like-it-is dept.
Rob writes to mention a CBR article on Judge Wells' assessment that SCO just hasn't made its case against IBM in the well-known and long-lasting legal battle. The magistrate called the lack of evidence inexcusable. She further likened their claims to a shoplifter being handed a catalog for a store after being stopped, and being told 'what you took is in there somewhere, figure it out.' From the article: "In the view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put 'all the evidence... on the table' ... given SCO's own public statements... it would appear that SCO had more than enough evidence to comply with the court's orders." Groklaw has coverage of the decision, and the complete text from the judge. Update: 06/30 15:14 GMT by Z : This story bears more than a passing resemblance to this one from Wednesday. Sorry about that.
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Judge Calls SCO On Lack of Evidence

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  • by a_karbon_devel_005 (733886) on Friday June 30, 2006 @11:06AM (#15636333)
    This case was lost in the public court of opinion long ago, I'm kind of surprised it's even still going on. Apparently the judge is of the same mind.
    • by heinousjay (683506) on Friday June 30, 2006 @11:23AM (#15636485) Journal
      Ah, yes, the court of public opinion. I'm shocked the judge hasn't just deferred to that and sentenced Darl to be hanged by the neck til he be dead, dead, dead. Stupid rule of law.
      • by LoyalOpposition (168041) on Friday June 30, 2006 @12:34PM (#15637113)
        Normally you'd be right. However, I still think the parent has a point. Several things SCO has done make it appear that the whole purpose of the lawsuit was to slow the uptake of Linux. In other words, a trial in the court of public opinion. It's a though there's someone pulling SCO's strings. Someone with deep pockets; someone who would greatly benefit by Linux's demise. However, I can't imagine who that might be.

        -Loyal
    • I wonder what the board room meetings of SCO are like with the lawyers that have undoubtedly drained SCO's coffers of every red cent...

      "Na guys, we're feelin good about this thing. The judge keeps giving me a vibe - I'm so gonna hit that. But back to the case, na, we're doing well. I'm feeling judgement for us, no problem. IMB is (what's that? oh, IBM) IBM is SO gonna pay through the teeth. Leanux is going down!

      "Oh, um, here's your bill. Pay that whenever. No rush."

      • Just one problem -SCO and its law firm entered an agreement about a year ago. SCO paid them a lump sum to cover the entire trial (minus expenses). SCO got a good deal, and the law firm got its money while SCO still has some.

        So at this point, there's no more monetary motive for the law firm to drag the case out.
        • Wait, what is this "minus expenses" parenthetical remark? Expenses are the law firm's bread and butter. Expenses include but are not limited to: Attorney salaries, assistant salaries, Managing Partner's Dog's salaries, catering services, car services, car washes, travel expenses, strip club outings, and energy efficient lightbulb surcharge.
          • I know I don't have the legal/business vocabulary down, but I understood the "expenses" to be limited to more direct costs the law firm has to pay out to 3rd parites -like hiring expert witnesses, costs related to taking depositions, travel costs...

            That doesn't mean it couldn't be abused to a degree...
      • Obviously you've never dealt with lawyers. They always take care of the payment issue first. :)

        In the case of SCO, they have a whole trust fund set aside to pay themselves out of, in case the company goes bankrupt in a hurry. The employees may not get their retirement benefits, but by god the lawyers are going to get paid! (This is fairly standard practice, I should note.)
      • It reminds me of a quote from the movie "Nobody's Fool" with Paul Newman

        Wirf: Sooner or later we'll wear the bastards down. The court is already starting to get pissed. You heard the judge.

        Sully: He's pissed at you, Wirf!

        Wirf: Only because he knows I won't go away.

        Sully: I know how he feels.

      • I wonder what the board room meetings of SCO are like with the lawyers that have undoubtedly drained SCO's coffers of every red cent...

        Probably pretty happy since they have all drained SCO's coffers into their personal bank accounts.
      • this is one case where the lawyers fucked up.. back when this all started they agreed on a lump sum to cover the case.. SCO paid it.. and now it gets dragged out and the lawyers are on their own time.. this isn't costing SCO any more money that that one time payment.. last time i saw figures on it.. (i wish i remembered where it was) the law firm was making just over minimum wage per man hour..

        now when they lose man that is going to teach someone.. (atleast i hope so)
        • Do law firm's go bankrupt?

          "Your Honor, our firm has filed for chapter 11 procedings due to expenses incured litigating this matter, and we have not been paid for two months, I regret to infor you that we are adbanding the represention of SCO so that we may persue gainfull employment at an other law firm."
    • by ivan256 (17499) * on Friday June 30, 2006 @11:31AM (#15636564)
      It depends on your perspective.

      This case dealt a near fatal blow to end-user linux in business. Over the last two years Microsoft made previoulsy unimaginable gains in server market share, and they are using it to increase their desktop lock. The vast majority of IT managers, CIOs, CFOs, and corporate legal departments are scared to death of the GPL. The FUD is made even worse by lawyers cashing in on those fears by telling people they need to pay for costly audits and license reviews.

      So who lost again?
      • by Anonymous Coward
        Hey, Mr. Glass-half-empty dude,

        You're forgetting that linux came from literally nothing, and has managed to gain the respect and share it has based on it's merits as an OS, and to a lesser degree on the free beer/speech stuff. Even in the astronomically unlikely event that SCO wins, and Microsoft goes on to world domination, linux will still be there, and will be active. Why? Because Microsoft is evil - it's their nature. That paradigm will live on as long as we have SCO & MS.

        Remember the AT&T/B
        • Whats the point of boasting about Linux pride if only a few hobbiests and Computer science students use it?

          Shouldn't the growth continue to change the world and help everyone use IT to benefit everyone instead of MS?

          I just mentioned in this thread about a previous employer who has now grown skeptical of linux as a result of SCO. We did use SCO man moons ago and found out we used Linux and tried to send us threatening letters and invoices which we paid. Its cheaper to pay than fight in court.

          We had to audit
          • by cuantar (897695) on Friday June 30, 2006 @02:15PM (#15637927) Homepage
            I'm a student in high energy physics and the sysadmin for our machines. Our entire research group at my university uses Linux exclusively for our servers and our desktops, aside from my advisor who's in love with Apple. When Linux newbies join our group, within a few months they've decided to install it on their laptops because for what we do, it's clearly superior.

            Linux is no longer simply the domain of CS students and hobbyists. Anyone who suggests otherwise is avoiding the truth. It may not be ready for "mainstream" desktop use, but for specialists in many fields, it's the best choice. I can't imagine trying to do my work on a Windows box; we use Linux because it's free, it's powerful, and it works. There's also usually a hobbyist in groups like ours who can admin the machines, and in my experience, a Linux cluster takes a lot less work to keep running than a bunch of Windows machines.

            Fermilab even hosts its own distribution called Fermi Linux [fnal.gov]. It's Red Hat Enterprise with some changes, essentially.

            In my opinion, Linux doesn't have to overtake MS or Apple to accomplish something in the world. Market share is silly to talk about with free software because the word "market" means something completely different. I don't care if Joe User runs Linux; I just care that I can. Joe User can't contribute anything back, so he's really almost irrelevant from a point of view that ignores marketspeak. If I can run Linux myself, then so can others, and there are enough like-minded people in the world who will help me write software for it and give it away for free. Therefore, if Linux so much as exists, it has accomplished quite a bit.
      • Where are you getting this from? That's not the case in any of the places I've seen. If anything, we're seeing way more linux products finding their way into the server room now, especially on the embedded side.
        • This is exactly what I'm saying. Linux is still big in embedded products, but it is now losing ground in end-user deployments. For the most part, the only people considering deploying linux right now already have linux, or are putting in an appliance.
      • I agree.

        A company (large, reputable) that I finished a contract for bans all free software, and especially all software licensed under any form of GPL, Apache, Mozilla, or Creative Commons licenses. The only exception that they will make is for embedded tools (such as Perl being used in certain commercial applications). The CIO and CFO have to sign off on this use, and the vendor providing the software must contractually promise to indemnify the company against any and all lawsuits stemming from the u

        • The only exception that they will make is for embedded tools (such as Perl being used in certain commercial applications).


          Perl is dual licensed, so you can use it under the Artistic license (which isn't one of the ones you listed as disallowed).
        • That's pretty naive. Microsoft doesn't indemnify its customers against lawsuits either. At least with OSS (linux) you can look at the source code to determine for yourself if there's any infringing code. Windows? Who knows what's in there?
    • by X43B (577258)
      Huh? From what I heard/read about 90% of people thought RIM was a group of hard working, entreprenurial Canadians who came up with and sold a wonderful product that enriched the lives of thousands of people. NTP was a evil leach on society taking advantage of the sytem and should be shot. RIM still paid huge, I guess public opinion isn't the deciding factor.
  • by Penguinisto (415985) on Friday June 30, 2006 @11:07AM (#15636344) Journal
    bah, one could only hope, but damn this is nice to hear.

    Too bad Darl and friends have already made their millions from SCO's little stock kiting scheme, but it'll at least be a small comfort to see SCO finally begin to implode. I think I'll be checking the Salt Lake Tribune (I live here) for the eventual bankruptcy sale... maybe buy one of their logoed signs and mount it on a trophy plaque. (well, a man can dream, can't he?)

    /P

  • by schon (31600) on Friday June 30, 2006 @11:09AM (#15636359)
    You can see lots of insightful comments in the other [slashdot.org] story about this.
  • by gasmonso (929871) on Friday June 30, 2006 @11:10AM (#15636363) Homepage

    This case was a complete waste of time and effort. Hopefully they will disappear into the woodwork never to be seen or heard from again. Quite pathetic that it went on this long.

    http://religiousfreaks.com/ [religiousfreaks.com]
  • by DRM_is_Stupid (954094) on Friday June 30, 2006 @11:11AM (#15636378)
    I thought that US law requires the defendant to provide reasonable amount of evidence in order to get a court case started in the first place.
  • by Conspiracy_Of_Doves (236787) on Friday June 30, 2006 @11:17AM (#15636428)
    This case is still going on?

    I thought SCO lost a long time ago.
  • by kahei (466208) on Friday June 30, 2006 @11:18AM (#15636440) Homepage

    SCO _have_ made their case. Specifically, they've effectively gone "our case is extremely weak and you should throw it out."

    They can do this because their aim was to encourage investment in SCO (both via share buying and directly from coMpanieS willing to support anything that might weaken IBM), not to win a case.

    If only all litigants were so forthright. Three cheers for these latter-day Washingtons!

    • SCO _have_ made their case. Specifically, they've effectively gone "our case is extremely weak and you should throw it out."

      Except I don't think it was quite that simple. While their case is extremely weak, they believed it was very strong. They've spent years now firing off one motion after another, trying to obfuscate, decalrify,and otherwise muddy a perfectly straightforward situation -- that they have no leg to stand on. They got some companies to settle with them, if nothing else to avoid the hassl

      • While their case is extremely weak, they believed it was very strong.

        Umm, no. They never believed their case was strong. It was a (very weak) bluff, designed to encourage IBM to buy them (hence the "buy-out" contingency in their original contract with BSF.)

        They've spent years now firing off one motion after another, trying to obfuscate, decalrify,and otherwise muddy a perfectly straightforward situation

        Exactly. This proves the point that they didn't believe their case was strong.

        If their case was strong,
        • If their case was strong, why on earth would they try to delay and obfuscate it?

          Ah, but you're confusing the SCO with their lawyers. The SCO believes their case is strong; their lawyers know better, and so began a campaign to drag out and delay the ruling to a) cover up for the weak case, b) cause some people to give up and settle rather than fight it out (due to lack of resources), and c) to ramp up their billable hours. Never let it be said a lawyer would willingly pass up a gravy train. By the time t

          • Bullshit. All you have to back up your assertion is (incorrect) assumtptions and speculation about what the lawyers believe. You provide no proof whatsoever about what SCOX believes.

            There are *many* tangible reasons why we should believe that SCOX knows that their case is bogus (Darl and Sontag's outright lies being first and foremost) and nothing but idle speculation to believe otherwise.
            • There are *many* tangible reasons why we should believe that SCOX knows that their case is bogus (Darl and Sontag's outright lies being first and foremost) and nothing but idle speculation to believe otherwise.

              I know from whence I speak, as it is exactly this kind of thing my wife is going through with her ex right now. Perhaps SCO does know the case is weak, but given their statements and the chest-thumping they do on a regular basis, it's more likely they have deluded themselves into believing they ar

    • If so, the SEC might be interested in administering the coup de grace.
      • if you've noticed, the SEC is much like the auditor's mindset, going in after a battle and bayonetting the dead. If the courts find SCO's claims to be bogus, and then Novell and IBM destroy what's left with their countersuits, and then the stockholders get pissed and sue, then the SEC will wake up and start doing something.
  • by brother_b (16716) on Friday June 30, 2006 @11:20AM (#15636456)
    She further likened their claims to a shoplifter being handed a catalog for a store after being stopped, and being told 'what you took is in there somewhere, figure it out.'

    No, it's more like a store manager stopping someone who owns a competing business leaving the store, accusing them of shoplifting with no proof of anything being stolen, and then giving them the catalog to sort it out simply to harass them and take up their time.

    • The quote isn't quite right either. She said someone 'accused of shoplifting'...

      I thought it a bit odd that a judge would leave something hanging like that - i.e that IBM were guilty, but that SCO couldn't prove it.
      • I thought it a bit odd that a judge would leave something hanging like that - i.e that IBM were guilty, but that SCO couldn't prove it.

        No, the judge is spot on.

        SCO has accused IBM of shoplifting a good many different items, so to speak.

        The judge has not yet ruled on whether or not IBM shopifted anything. What she has said is that SCO has failed to provide evidence even to warrant such a ruling regarding the alleged shoplifting of most of the items, and dropped those counts.

        However, there are a few items left of which IBM remains accused of taking (to continue with the "shoplifting" analogy).

        For the judge to appear to have decided on IBM's "guilt" or "innocence" with regard to any of the remaining items at this point in time would be improper because that evidence has not yet been given a full hearing. IBM does in fact remain accused by SCO - nothing more, nothing less - and that's what she must say if she is to appear impartial.

        The next step is for the remaining counts to be presented, along with evidence, in court. Only after that happens will IBM's "guilt" or "innocence" of the (remaining) charges brought by SCO be determined.
        • You've done an admirable job of summing it all up, except for one thing. We have not yet gotten to the point of IBM asking for a summary judgement which would precede the trial. It's possible that the judge could grant complete summary judgement on all of SCO's remaining claims and throw them out of court. However, even in that event, we're still likely to go to trial if only for IBM's counter-claims.

          So, we're still in the pre-trial motions phase of this saga.
        • "The next step is for the remaining counts to be presented, along with evidence, in court. Only after that happens will IBM's "guilt" or "innocence" of the (remaining) charges brought by SCO be determined."

          Almost, but not quite right, if I understand the way courts work correctly (I'm definitely not a lawyer, but have tried to learn a few things). Before the case goes to trial, there is, I believe, one more phase to potentially enter, which I think IBM will want to enter with a vengeance.

          That is dispositive
    • And while they're looking at the catalogue, the first store manager points at him and screams "LOOK LOOOK! HE'S FINDING WHAT HE STOLE FROM MY STORE!" and then "IF YOU BUY THINGS FROM HIS STORE, YOU'RE RECEVING STOLEN MERCHANDISE AND I'LL CALL THE MAN ON YOU!"
  • by ajedgar (67399)
    128 foot notes? Curious.

    Coincidence? I think not...

    aj.
  • by HockeyPuck (141947) on Friday June 30, 2006 @11:34AM (#15636591)
    "It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling'.


    Anybody here think that this resembles some guy dealing with his girlfriend/wife who is mad at him..

    Him: What did I do?
    Her: You know what you did, and if you don't know, I'm not telling you.

  • by Tom (822) on Friday June 30, 2006 @11:36AM (#15636609) Homepage Journal
    So if even the court believes that SCO has abused the legal system for unfair gains - will there be any punishment for that? Can the judge declare such punishment or does it have to go through a seperate case? Does the court system even have a way to send the message that it doesn't like being abused?
    • by iggymanz (596061) on Friday June 30, 2006 @11:44AM (#15636678)
      IBM and Novell have already filed countersuits, and those are for amounts that will more than destory anything that's left of SCO. Then there will be fun of all the shareholders realizing that Darl and other executives lied about what SCO owned. This will go on for years and get very ugly, I can't wait 8D
      • oh yeah, forget about the wee little bit about SCO not sending 100% of the $24M it collected from Microsoft and Sun to Novell so Novell could then do their usual thing of sending 5% back to SCO (since SCO obviously doesn't own Unix with this arrangement). So that brings up the criminal matter of embezzlement on the part of SCO's executives. They should begin gastrointestinal egress dilation excercises for when they get an all expense paid vacation in the steel and concrete suite with no view and a randy ro
        • From m-w.com:

          Main Entry: ingress
          Pronunciation: 'in-"gres
          Function: noun
          Etymology: Middle English, from Latin ingressus, from ingredi
          1 : the act of entering : ENTRANCE

          Main Entry: egress
          Pronunciation: 'E-"gres
          Function: noun
          Etymology: Latin egressus, from egressus, past participle of egredi to go out, from e- + gradi to go -- more at GRADE
          1 : the action or right of going or coming out

          So, technically the initial dilation happens on ingress. Then, followed by the customary egress, ingress, egress,... cycle.
    • The throwing out of the claims is the penalty for not following the court's directions to specify the code in question with specificity, i.e., Version, File, and Line.
  • Summation of the PDF (Score:5, Interesting)

    by a_karbon_devel_005 (733886) on Friday June 30, 2006 @11:42AM (#15636651)
    In quick summary, SCO did not provide line number, VERSION and FILE information for many of it's claims. Some of their claims they did not even find source code for (roughly 2/3rds of claims). IBM warned them very early on that if they didn't receive these specifics, they would seek court intervention.

    SCO also claimed that "methods and concepts" do not need source code to back them up. However, the Judge decided that this was incorrect and that methods and concepts could, in the most basic of terms, be boiled down to source code. Even the SCO technical witnesses attested to this, and furthermore SCO repeatedly requested the SAME LEVEL of specificity from IBM when requestiong source codef regarding AIX, LINUX and other products throughout the trial.

    Basically the Judge finds it unacceptable that even though SCO has had since 2003 to substantiate it's claim with LINE, FILE and VERSION numbers for each claim, it has failed to do so.
    • Back to the shoplifting analogy... The judge has made IBM "strip search" for the court and SCO is still saying they took "something precious" without actually pointing to something that came from IBM's "pockets". Remember, SCO's had 2 years with IBM's source code opened to their lawyers to find something that IBM "stole". By this point the judge is expecting SCO to have "pages" in hand that they accuse IBM of stealing... they still REFUSE to pick something out that the judge can rule on.
  • by Rhett's Dad (870139) * on Friday June 30, 2006 @12:05PM (#15636882) Homepage
    I would now like to see the SEC and/or the major SCO stockholders (non-MS obviously) hold the executive team accountable for this major company loss of money, business, and most of all CREDIBILITY in the technology market. Those Linux-using companies that SCO intimidated into buying indemnity licenses should further pursue legal action to get their costs back, with punitive damages to boot.
    In my mind, this strategy of theirs fits right in line with the same kind of covert accounting strategies that Enron/Worldcom/etc were investigated for, where the EXECUTIVES themselves were held accountable to the tune of big $$$ and jail time.
  • Die SCO DIE!!! (Score:2, Informative)

    Don't go away mad. Just go away.

    Do the math:

    SCO = (SUCK)!
  • Shoplifting (Score:5, Insightful)

    by corby (56462) on Friday June 30, 2006 @12:10PM (#15636925)
    The shoplifting analogy isn't quite there.

    Actually, it's as if you walked out of Neiman Marcus, a security guard accused you of shoplifting, and then refused to tell you what you shoplifted.

    Then, the guard pulls over his buddy, respected Yankee Group Laura Didio. She looks in your bag, then looks at the Neiman Marcus catalog, and announces on national media that you have stolen something from Neimann Marcus but she won't say what it is [computerworld.com].

    Three years later, during trial, the guard is still unable to explain what you stole from the store.
  • sco, eggs and toast.
  • The Real Tragedy (Score:3, Insightful)

    by PingXao (153057) on Friday June 30, 2006 @12:46PM (#15637204)
    The real tragedy here is that a gang of crooks are able to game the legal system and drag on a bogus lawsuit for years and years. How many small business owners or private individuals could afford to defend against a legal claim - any legal claim - where the opponene, even though his case had no basis in fact, was ready to litigate for YEARS.

    So I applaud the Judge in this case (I think) and IBM for having the backbone to stand up to the SCO thugs. But we're all losers here.

    SCO executives and possibly even the goddamned shareholders should do jail time for fraudulent use of the courts.
  • by Laura_DilDio (874259) on Friday June 30, 2006 @01:04PM (#15637348)
    Laura DiDio, a senior industry analyst of the Yankee Group who tracks SCO, says Wells's latest ruling isn't a surprise.

    Laura is such a two-faced windbag! She spends months berating Linux and IBM -- hell, she's seen the supposed evidence, and now she's doing an about-face so she can proclaim that as an industry analyst, her forcasts are "spot on".

    The Yankee Group (and especially Laura) wouldn't know their own asses from a hole in the ground.

  • by Dastardly (4204) on Friday June 30, 2006 @05:14PM (#15639578)
    About the only thing it gets right are the things quoted from teh ruling. So, read the Groklaw article.

    The judge did not throw out any evidence. The judge threw out a bunch of SCO's claims against IBM because SCO did not provide IBM with what specifically IBM did that caused SCO to bring those claims agains IBM. IBM asked what version, file, and line of code SCO was claiming IBM used improperly, and SCO did not tell them. So, the judge said you cannot litigate those claims against IBM because IBM cannot defend themselves without knowing exactly what you are claiming they did.

    There is another set of motion practice going on to get some parts of SCO's expert reports stricken due to them bringing up supposed misconduct that was not part of what SCO has in their pleadings or that SCO mentioned during discovery. This could result in much of those expert reports being stricken which could properly be called throwing out evidence vs throwing out claims.

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