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Caldera Government The Courts IBM News

Portions of SCO's Expert Reports Stricken 170

Posted by CowboyNeal
from the gonna-have-to-do-better-than-that dept.
rm69990 writes "A day after Judge Dale Kimball reaffirmed Judge Wells' order tossing most of SCO's case, Judge Wells has stricken large portions of SCO's expert reports, stating that SCO was trying to do an end-run around IBM. As IBM put it in its motion papers, SCO will not be allowed to 'litigate by ambush.' This motion was regarding SCO's expert reports, where SCO attempted to insert new evidence after discovery had ended via their expert reports. Wells' ruled directly from the bench, and finished by telling SCO to 'take it up with Judge Kimball' if they had a problem. This really hasn't been a good week for SCO."
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Portions of SCO's Expert Reports Stricken

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  • Just a theory (Score:5, Interesting)

    by Fecal Troll Matter (445929) on Friday December 01, 2006 @06:38AM (#17063516) Homepage Journal
    This is actually a very well known theory of copyright. An example: One cannot copyright factual data, but if one takes the factual data and arranges them in a novel enough way as to satisfy the "originality" requirement of copyright law, then that "author" can have a copyright over the selection and arrangement of the factual data. The data itself is not protected(anyone can put the same data in his own work), but that particular selection and way of arranging it is protected.

    The copyright will normally be a "thin" copyright, meaning that for someone to be infringing he or she must have produced something nearly identical to whatever is protected. The data does not have to be factual data. A compilation of classical music now in the public domain is an example of something that might also be protected. This avenue is often used to try to protect computer databases where one entity has gone through a lot of trouble to collect a bunch of data and arrange it in a computer database, and someone else comes along and just copies it all.

    Courts have held that things like the white pages (and in many cases the yellow pages) do not have sufficient originality to qualify for a compilation copyright.

    In my opinion compilation and similar "data arrangement" copyrights are not a very good way to protect data (one reason is that you're attempting to protect "sweat of the brow" work through copyright, which is an idea that was rejected long ago).I feel that works of this type are better protected through tort law under the "unfair business practices" doctrine.
    • Re: (Score:3, Interesting)

      by Rogerborg (306625)
      You are TennSeven [groklaw.net] - or are ripping him off - and I claim my $5.
  • Poor SCO (Score:2, Funny)

    by Anonymous Coward
    This really hasn't been a good week for SCO

    Poor SCO, lets see if I can squeeze out a tear of sympathy.

    NNNNNHHHH!

    Nope.
  • by Tuqui (96668) on Friday December 01, 2006 @07:02AM (#17063684) Homepage
    SCO case is over, even M$ put their money with Novell now.
    They already abandoned SCO.
    • by couchslug (175151) on Friday December 01, 2006 @07:58AM (#17063996)
      SCO will continue to serve its purpose for a while.
      When a land mine explodes, you don't consider the mine a failure because it was destroyed in the process. :)
      • by Dan Ost (415913) on Friday December 01, 2006 @09:05AM (#17064530)
        I don't see how SCO can be considered a success in the long-term.

        Sure, it's possible that some people were scared away from Linux because of
        SCO's posturing, but the increased scrutiny has vetted the Linux source,
        improved the development process, educated the community about the pitfalls
        of how concepts of intellectual property are applied to software, and
        organized the community in beneficial ways that will outlive the SCO lawsuit.

        I think that in 20 years we'll look back and see that the whole "SCO incident"
        was a catalyst for a lot of good things.
      • by mike2R (721965)
        When a land mine explodes, you don't consider the mine a failure because it was destroyed in the process. :)
        Depends who's tank is driving over it at the time..

        SCO certainly exploded sucessfuly, but I don't think you can say they damaged their intended target very much.
      • by swillden (191260) *

        When a land mine explodes, you don't consider the mine a failure because it was destroyed in the process. :)

        But you do consider it a failure if it launches your enemy, unharmed, over the fence you erected to keep him out.

        If the goal was for SCO to damage Linux, the plan has backfired. Sure, a few sales might have been lost or delayed, but the bottom line is that people who were concerned about Linux containing copyright infringements can now rest easy on that score. SCO spend four years and 40 millio

    • SCO may be a Microsoft stooge, but they where never their baby. Microsoft gave them some cash and said "go for it", and moved on. I don't think they where stupid enough to think that SCO had much of a chance, the best they could have hoped for was a short term FUD gain. IBM probably fought a little harder than they expected. With Novell, it's totally different. The Novel "situation" is a peek at where Microsoft wants to go with Linux, an IP war. In today's IP law and court system, they have a good chance o
      • by astrashe (7452)
        One of the things that's pretty depressing about all of this is that the contest between MS and Linux has moved into a legal phase. Presumably, most of us are here because we like technology. But it's not about technology any more, or building cool things.

        Our general is Eban Moglen -- he's the guy who will lead the fight, and he has more influence over the success or failure of linux than Linus or any other geek.

        For me, individually, that's the big realization that's come out of the Novell/MS deal. It's
        • Our general is Eban Moglen -- he's the guy who will lead the fight, and he has more influence over the success or failure of linux than Linus or any other geek.

          Well, he needs to get agressive. Thus far, I'm not impressed. "pretty please" and reasonable arguments don't work in this situation. If Moglen doesn't have what it takes to get nasty, he needs to give up the seat.

  • by ettlz (639203) on Friday December 01, 2006 @07:14AM (#17063744) Journal
    Well that pretty much defines "good week for the rest of us".
  • Now it is quite clear. Microsoft's deal with Novell is an attempt to keep the FUD going after SCO's case implodes. They must have very good legal counseling so they new what was coming.

  • by Anonymous Coward on Friday December 01, 2006 @07:35AM (#17063858)
    SCO should claim that their code was inserted into Linux by a one-armed man. Then Kimball would probably be more inclined to believe them.
  • by KokorHekkus (986906) on Friday December 01, 2006 @07:37AM (#17063868)
    IANAL etc.

    Part of the Lanham Act (http://en.wikipedia.org/wiki/Lanham_Act [wikipedia.org]) is often used when a company claims their business been hurt by false or misleading statements. There are 3 things that must be proved by the company that claims the damage: 1) there was a false or misleading statement made, 2) the statement was used in commercial advertising or promotion and 3) and the statement creates a likelihood of harm to the plaintiff.

    Now looking at how SCOX has kept shooting it's mouth of in the early phases of the case I'd say that 2) and 3) are pretty self-evident for those who have followed the development of this case. 2) because SCOX made a lot of loud statements during their Road Shows (which they only made to market themselves) that never materialized. 3) can most likely be proved just by reading what market analysts wrote based on SCOX:s statements and the initial soaring of SCOX value.

    So the only way to weaken the Lanham Act accusations from IBM is to weaken 1). If something, just any little thing, does survive into the trial itself it might give SCOX the chance to argue that the other statements were made in some kind of good faith. So they try to wriggle anything in sideways, under or over that can help them to do that. Because if they don't then it will look very bleak for them when Lanham Act part of trial starts.
  • SCO's strategy (Score:5, Insightful)

    by Anonymous Coward on Friday December 01, 2006 @08:05AM (#17064056)
    Novell and IBM have both filed for summary judgements on SCO's claims and on many of their own counter claims. If the judge grants that then a jury trial isn't needed. The judge can do that if the case can be decided entirely on the basis of law. In other words, there are no disputed facts.

    An example of something that could be decided as a matter of law would be whether Novell transferred any copyrights to Santa Cruz and whether they then passed on to SCO. The judge could simply read the contracts and rule that the ownership of the copyrights had not changed hands; no need for a jury.

    SCO's only hope is to get their case in front of a jury and that hope is based on being able to confuse the jury and get a verdict that they don't deserve.

    When discovery closed, SCO had not dredged up anything that could serve as a disputed fact. What they did put before the court was mostly pitched out by Judge Wells because it was not nearly specific enough. It was like: Shop keeper "He stole something from my store."
    Cop "What did he steal?"
    Shop keeper "Something; it was in the catalog."
    Cop "How do you know he stole it?"
    Shop keeper "He was in the same city."
    If you haven't been following this sorry mess, you'll think the above scenario is exaggerated. It isn't.

    In order to get something past the judges and before the jury SCO tried to sneak some stuff in via the expert reports. Unlike the rest of us (who have to stick to facts), experts are allowed to give opinions to the court. SCO was hoping that they could sneak in some opinions that would make it look like there were some disputed facts. Then they would get their jury trial.

    Notice also the judges' strategy. They aren't allowed to tell SCO that they are full of crap. They have to assume that SCO is acting in good faith. Thus, when judge Wells threw out most of SCO's evidence, she did it on the basis that they willfully withheld evidence. They said they had evidence and they didn't present it so they must have withheld it. Of course, we all know that SCO never had any evidence. Similarly, we know that the expert reports were just embarassingly bad. I feel sorry for the experts.
    • by nuzak (959558)
      > SCO's only hope is to get their case in front of a jury and that hope is based on being able to confuse the jury and get a verdict that they don't deserve.

      This rarely works in real life. Confusion usually works against a plaintiff, and when the defense can show that facts not in evidence contributed to the jury verdict, it's instant appeal-bait. If SCO tries to use any of its evidence that was thrown out, or even hint it it, you can be pretty sure that their entire case will be thrown out.

      Come to thi
  • by RedShoeRider (658314) on Friday December 01, 2006 @08:31AM (#17064244)
    "This really hasn't been a good week for SCO."

    No. Shit. Sherlock.
    From the looks of it, SCO's last good week was back in 2000:
    http://finance.yahoo.com/q/bc?s=SCOX&t=my [yahoo.com]

    • From the looks of it, SCO's last good week was back in 2000:

      You're right, but SCOX is still traiding at $2 a share, even with this bad news. In the past year, the lowest it got was $1.52 a share and it climbed up after that. That is exactly why I said yesterday that I expect SCO to survive until the trial starts in September.
      • by swillden (191260) *

        From the looks of it, SCO's last good week was back in 2000:

        You're right, but SCOX is still traiding at $2 a share, even with this bad news. In the past year, the lowest it got was $1.52 a share and it climbed up after that. That is exactly why I said yesterday that I expect SCO to survive until the trial starts in September.

        That's only because SCO's stock doesn't really trade. Nearly all of it is owned by insiders who seem quite willing to continue buying it to keep the price up. So little of it trades that it's not hard to keep the price up.

        As for SCO's survival... the stock price is irrelevant to that question. SCO is running out of money, quickly. Another company would have the option of issuing and selling more shares to raise capital, but who would buy it? The insiders who hold the price up can't afford to raise

      • not anymore. they took a dive in the first hour of trade. SCOX is at $ 1.62 right now.

        you can follow them here: http://finance.google.com/finance?q=SCOX [google.com]
  • I'm cheered by this discussion of the Lambert Act because it sounds like maybe, just maybe, these thugs will possibly be brought to heel. Darl et al. are the worst kind of snake-oil salesmen and probably have millions salted away in some account in the Caymans. Someone needs to get this cash and return it to the shareholders. However, they'll probably slither away, hopefully never to emerge into the light. C'est la vie.
  • Win Or Lose... (Score:2, Offtopic)

    by Greyfox (87712)
    The lawyers in this case will make more money than most of us will see during the course of our entire careers.

    Of course, IBM isn't going to just stand there after letting SCO dig a hole for the past 3 years either. They're going to open a can of whoop ass and in a matter of days from the time they do it I'm sure there will be plenty of whoop ass to go around. I don't think they'll be satisfied simply to destroy SCO -- I think they're going to go out of their way to see to it that lives are destroyed. I w

    • I don't car if it is IBM or the RIAA the idea of using criminal law in what is a civil matter is just wrong.
      If the people in SCO broke the law then I have no problem with them receiving the consequences of their actions, but trying to "ruin" peoples lives is just wrong and sick.
      Let's put this in perspective the the people that run SCO have not killed anybody. They have not tortured anybody. They have not raped anybody. They have molested anybody.
      Those things are happening right now in the Sudan and other pl
    • by Interfacer (560564) on Friday December 01, 2006 @10:24AM (#17065662)
      You seem to be suffering from severe delusion.

      - most likely, there will be NO people going to jail. Just because YOU have a vested interest does not make this case any different from 1 megacorp suing another
      - lawyers are NEVER punished for trying a case on someone else's behalf (as long as they don't do anything actually illegal). this case is not anywhere near as emotionally charged as the trial of Ted bundy, Timothy McVeigh, or that hijacker that did not -factually- hijack a plane.
      - lawyers like SCO's generally have more than enough work offers, and they charge more per hour than I per day, and I am an expensive consultant. The fact that they represented SCO does not hurt them in the least.
      - the fact that SCO gets beaten at every turn is NO a fault of their lawyers. SCO has a shitty case, and the lawyers have to work with what they got. they do the best they can, and they should. you'd expect the same from your lawyer, no?

      In a far more realistic scenario
      - IBM takes this all the way and SCO loses big.
      - IBM's counter claims will maybe turn out in their advantage, but maybe not.
      - SCO will try to appeal, but this will most likely not have a result because -unlike you- the judges involved kept their cool and did everything by the book, no matter how trivial and dull the issue at hand.
      - SCO will dwindle away and die. Not because they are evil, but simpy because they alienated their remaining customers, did not invest in developing new technology, and have a gigantic lawyer bill to pay. The latter largely because the SCO lawyers had sense enough to demand payment, instead of a large percentage of a possible settlement.
      • by nuzak (959558)
        lawyers are NEVER punished for trying a case on someone else's behalf

        Not criminally anyway, but BSF is certainly trashing its reputation. Filing 11th-hour depositions ... in nonexistent jurisdictions. Filing stipulated motions ... that weren't stipulated. Boeies himself is certainly filling up his resume with a trail of cast after spectacularly lost case, to say nothing of the piles and piles of money his firm has lost over it.
  • How is this a good thing? Someone (I'll include a company as a person for this discussion) can, without merit, take another person to court, without basis, without proof, without even a specific claim, and tie up resources for years. How exactly is this a good thing? People claim "this is a win for IBM" or some such. The only win for IBM (and the rest of us) is if the process ended long ago with a dismissal with prejudice. It's too far along for anything to be a "win" for anyone. It's just a matter of
  • A legal system actually interested in justice would strip those "experts" of their privilege to testify credibly in court.

    And disbar SCO's lawyers for their outrageously frivolous lawsuit.

    Instead, those experts and lawyers will make the only money anyone will see in this endless travesty.

    And American taxpayers will subsidize it, with all the time and resources consumed by the public courts which have a lot better things to do.
    • by Atzanteol (99067)
      And disbar SCO's lawyers for their outrageously frivolous lawsuit.

      That goes a little too far. It's not the lawyers fault their client has a weak case. Unless they have done anything illegal they really can't be blamed. You can't disbar them because you're made at SCO. :-P
      • Re: (Score:3, Interesting)

        by Doc Ruby (173196)
        This is a frivilous lawsuit. Lawyers are ethically required not to file them. That rule exists. It just needs teeth not to be a joke. Lawyers not taking baseless cases is the main gatekeeper of the integrity of the legal system. In principle, anyway. Though "principle" is clearly not operative for these lawyers. Which

        It's not just that I'm mad at SCO. I'm fed up with subsidizing these cases and these lawyers which have a chance to succeed only by extorting from the plaintiffs, or getting lucky. The only way
  • Anyone here remember when Microsoft said their judge was baised because they asked for an unreasonable request that wasn't granted? This is the problem with the legal system.

    Sco may just claim the judge is biased since they wont let their experts testistfy on their behalf and now we will all need to wait for 2 or 3 more years as the case starts over.
    • Not likely (Score:3, Insightful)

      by Tony (765) *
      Judge Kimball did a de novo review, meaning the review was excessively thorough. This pretty much indicates that any appeal attempt will merely result in the review of Judge Kimball's work, noting that SCO has no new issues on appeal, and expediting the whole process against SCO.

      Note, I'm not a lawyer. This is all the reading I get from Groklaw [groklaw.net], which has been following the case since the beginning. If you don't frequent Groklaw, you might want to, if you are interested in the SCO case at all.
  • Lets not forget those that sold themselves as "expert witnesses" during the SCO saga. In this particular case the expert witness was one Dr. Thomas Cargill [profcon.com].

    I will never buy his books (e.g., his C++ book). If he speaks at the local university I will boycott his appearances. If given the opportunity I will protest any attempt by any company I have influence over to use him as a consultant.

  • SCO and Confusion (Score:2, Insightful)

    by mythras (997054)
    I mean, the old Mark Twain saying fits best: A man who tells the truth, has to remember nothing.

    Each day that this drags out is one more day for them to confuse their stories, forget facts, change facts entirely, build up judge resentment, and basically undermine their case. Here is hoping that IBM does leave them a smoking crater, and then provides the blueprint for success to others who might be targets for such lawsuits. (Novell-MS vs Red Hat comes to mind.)
  • Have you seen their stock price lately. After taking a massive hit yesterday of over 20% it's down 38% more right now. Opened at $2.00 and is now at $1.24 a 38% drop. Wow what a freefall.

    Symbol SCOX
    • 's better to look at the 5 day chart [yahoo.com] where you can see that it was trading at 2.40 (pretty steady) for the past week (and most of the past few months).

      1.18 as of 12:42pm and the drop seems to be slowing down slightly.
      • 's better to look at the 5 day chart where you can see

        I did, but to see a steep curve, the 38% in a few hours is more impressive than the 50% over 2 days. The fact a white water river drops 1,000 feet in 30 miles is not as impressive as the 50 foot drop in a quarter mile.
  • Hehehehehe.... Wipeout [google.com]!

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