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Groklaw's PJ Says SCO's Demise Greatly Exaggerated 152

Posted by ScuttleMonkey
from the still-looking-for-a-fat-lady dept.
blackbearnh writes "Last week, the net was all abuzz with speculation that SCO was finally gone and done for. With the final judgment in SCO v. Novell in, and SCO millions of dollars in the hole to Novell, it seemed like the fat lady had finally sung. But like most things in the legal system, it isn't nearly that simple. O'Reilly Media sought out Groklaw's Pamela Jones, and got a rundown of what's still alive, and why a final end to the madness may be many years away. 'Summing up, it looks bleak for SCO at the moment, but let's enter the alternate realm of SCO's best-case scenario in its dreams: in that realm, SCO wins on appeal, which one of SCO's lawyers indicated might take a year and a half or five years, and the case is sent back to Utah for trial by jury, which is what SCO wanted (as opposed to trial by judge, which is what it got), then everything listed above (except for the IPO class action) comes alive again, presumably, depending on what the appellate court decides. Then SCO is in position once again to go after Linux end users, as well as IBM, et al.'"
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Groklaw's PJ Says SCO's Demise Greatly Exaggerated

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  • Please (Score:5, Funny)

    by whisper_jeff (680366) on Monday December 01, 2008 @02:50PM (#25949989)
    Make it stop. Please. I beg of you.
    • Re: (Score:1, Troll)

      by Chapter80 (926879)
      hedge your bets. Buy dirt cheap SCO stock.

      This is not a troll.

      --

      If they're under 16, you're only allowed to do them in your head! (re: multiplication tables, too)

      • Re:Please (Score:5, Funny)

        by blackbearnh (637683) * on Monday December 01, 2008 @03:00PM (#25950187)
        Too late, SCO's been off the market for a while. Just before they went under, I bought 10 shares at 0.50/share, then paid the $15 to get a physical certificate so I could frame it and put it in my bathroom, along with the rest of the toilet paper. Which is why you can find my name in various court documents in the SCO Bankruptcy, since I registered as a creditor. I'm getting bumped off, though, because they challenged and I don't have the time and energy to do all the hoops to stay on the list.
        • I agree. They can only keep this going with money. They don't have any, so it's not going to be five more years of crapola.

          SCO is dead.

          • Re:Please (Score:4, Insightful)

            by thermian (1267986) on Monday December 01, 2008 @03:18PM (#25950483)

            I agree. They can only keep this going with money. They don't have any, so it's not going to be five more years of crapola.

            SCO is dead.

            SCO have become what was suggested to them, a company that only does legal action. The employees and directors are getting paid well during this time.

            Other companies who like the idea of Linux in a quagmire have provided money for 'licences', and will continue to do so.

          • Re: (Score:2, Funny)

            by ShieldW0lf (601553)
            SCO is dead.

            Ahh, but trolls have regeneration. Everyone knows that.
        • by whoever57 (658626)

          since I registered as a creditor. I'm getting bumped off, though, because they challenged and I don't have the time and energy to do all the hoops to stay on the list.

          Perhaps you should try to understand the difference between a creditor and a shareholder? A little hint to you: does SCO owe you any money?

          • Re:Please (Score:5, Informative)

            by blackbearnh (637683) * on Monday December 01, 2008 @03:27PM (#25950663)
            According to multiple folks I consulted, I'm still a creditor, I'm just the VERY last in line to get anything. Which, practically speaking, means I'd never get anything anyway. But it was an easy way to get copies of all the bankruptcy proceedings, since they had to send me a copy of everything.
            • Re: (Score:3, Interesting)

              by whoever57 (658626)

              According to multiple folks I consulted, I'm still a creditor, I'm just the VERY last in line to get anything.

              Were these folks lawyers?

              I believe that shareholders are entitled to documents resulting from the bankruptcy proceedings -- you did not have to file as a creditor to get them. As I suggested above, I don't think SCO owed or owes you any money, so I suspect (but IANAL) you are not a creditor. If the company or its assets are eventually sold, you may be entitled to some money, but as you noted ab

              • Re:Please (Score:4, Interesting)

                by blackbearnh (637683) * on Monday December 01, 2008 @03:54PM (#25951077)
                Oh yes, they were lawyers, albeit providing advice pro bono. One is even a bankruptcy attorney, who gave me explicit advice how I could have stayed in the game had I wanted to make the effort.
                • by whoever57 (658626)

                  Oh yes, they were lawyers, albeit providing advice pro bono.

                  In that case, I will defer to their expertise.

                  • Oh yes, they were lawyers, albeit providing advice pro bono.

                    In that case, I will defer to their expertise.

                    You're new here, aren't you?

          • Re: (Score:3, Interesting)

            by alexhmit01 (104757)

            If I read him right, he IS a creditor. He paid $15 for the stock certificate, but they tanked and didn't send him one. So he is entitled to his $15 back.

            By Uncle bought two CD Burners for $500/piece (should give you the time frame on this) and the company tanked before shipping the drives. The whole thing wound through the bankruptcy process to get him some money back. They couldn't just ship the drives, because the "assets" of the company had to be sold and the creditors paid in order. So they took hi

        • Re:Please (Score:4, Funny)

          by Anonymous Coward on Monday December 01, 2008 @04:35PM (#25951611)

          ...frame it and put it in my bathroom, along with the rest of the toilet paper.

          I don't think that's how you're supposed to use toilet paper.

        • I'm getting bumped off, though, because they challenged and I don't have the time and energy to do all the hoops to stay on the list.

          Thank your lucky stars your name is getting bumped off from the publicly available death list. That's just bad Voodoo.

      • by fatboy (6851)

        BIFF, is that you?

  • by girlintraining (1395911) on Monday December 01, 2008 @02:50PM (#25949993)

    In other words, SCO is a zombie. It can't be killed by normal litigation. Argh, kill it with fire! Do it now!

    • Re: (Score:3, Funny)

      by sveard (1076275) *

      A bullet through the head should kill it. I saw it on TV once, I think it was a documentary.

      • Not if they were las plagas (which aren't technically zombies...).

      • Re: (Score:3, Funny)

        by Anonymous Coward

        Just remember that cutting off the head won't kill it. Its arms and legs will be gone but the head will still be around biting and yelling at people, like Jack Thompson.

        • Re: (Score:1, Redundant)

          by orclevegam (940336)

          Just remember that cutting off the head won't kill it. Its arms and legs will be gone but the head will still be around biting and yelling at people, like Jack Thompson.

          This deserves a +5 Funny if for no other reason than the best Jack Thompson reference ever.

    • Re: (Score:1, Funny)

      by Anonymous Coward

      In other words, SCO is a zombie. It can't be killed by normal litigation. Argh, kill it with fire! Do it now!

      Well, they're kind of like Beelzebub. You can't kill them but you could probably eradicate them from the earth back from where they came. So you'll need a Jesus kind of figure ... anyone know if Torvolds is free in the next couple days? If he is, tell him to bring a shit-ton of penguin water ...

      • by V!NCENT (1105021)

        You can't kill zombies with ice or water. We need flames. Maybe we can send baestie up their ass... Cash cow? Apple? Steve would surely love to see Redmond going up in flames!

        All joking aside... the real battle is IBM and Novell Vs Microsoft. In the sense of "First they ignore you, then laugh at you, then hate you, then they fight you and then you win", the road to Linux on the desktop is 80% completed. May IBM and Novell win...

    • by dkleinsc (563838)

      Then the title of the documentary is obviously:
      The Incredibly Strange Company Who Stopped Living and Became a Mixed-Up Zombie

      • Re: (Score:3, Funny)

        by David Gould (4938)

        I'll be sticking with my default tag for all SCO stories: "sadonecrobestiality".

    • by H0p313ss (811249)

      In other words, SCO is a zombie. It can't be killed by normal litigation. Argh, kill it with fire! Do it now!

      Nuke it from orbit! It's the only way to be sure...

      • No! What about the radiation? Won't that create a zombie apocalypse? Ah! We're doomed anyway!
      • ^^^^I came here to say that.
        Of course this is Utah, so it might look better after the blast.
        • by H0p313ss (811249)

          Of course this is Utah, so it might look better after the blast.

          Yeah... I was thinking that this was an all around win/win.

    • they are worse than Cylons. They seem to be "killable", but keep replicating. Hell, they don't even improve models. You need to find the Resurrection Ship and put a nuke in its colon.... preferably making it a HUGE swollen colon, that no deep space Ben-Gay nor Preparation H can favorabley re-sequence...

      SCO should be SCO^3, which could stand for: "Self-Contained Organism, Secreting Copies Over Secret Channel Outputs"

      Or, SCO could be a tag/jingle for: "Semi-Conjugative Ogres: Screwing Companies Over"

      • by V!NCENT (1105021)

        [...]You need to find the Resurrection Ship and put a nuke in its colon.... preferably making it a HUGE swollen colon, that no deep space Ben-Gay nor Preparation H can favorabley re-sequence[...]

        You want to take on Microsoft?

        The only way to do that is to make sure no major retailer wants to sell Windows and preloaded Windows computers

        Good luck with that!

    • Re: (Score:1, Offtopic)

      We need to kill its parent process! Where did that $100M come from? Pitchfork and torch time!!!
  • by halcyon1234 (834388) <halcyon1234@hotmail.com> on Monday December 01, 2008 @02:51PM (#25950015) Journal

    WTF is up with the userpage! It was bad I get slapped with the dumbass firehose-with-Idle's-stylesheet, but now I don't even have a tab for my comments.

    If I want Firehose, I'll go to to Firehose. (I don't, and wont)

    If I want Idle, I'll go to Idle. (I don't, and wont)

    If I want my userpage to be a clean, simple and informative interface, I'll click on my username in the upper right. Oh wait, I can't!

    If you want to dick around with the userpage, fine. Just give me a checkbox that says "opt out of this crapfest" like you did with the index and comments.

    • by JCSoRocks (1142053) on Monday December 01, 2008 @03:27PM (#25950665)
      holy crap I was about to post the exact same thing. The style sheet is the least of it. I still haven't even figured out how to tell if anyone's posted a reply to any of my comments. Now you have to click every comment... and reading my entire comment on my user page is just useless. I already know what I said, I'm looking for the replies. This is supposed to be a "discussion" not "oooh, shiny, look at all the cool crap I wrote. I must be awesome. So awesome that every time I go to my user page I want to read what I wrote over and over."

      When idle got jacked it didn't bother me because I almost never go there... but user pages? really?
      • by orclevegam (940336) on Monday December 01, 2008 @05:11PM (#25952163) Journal
        I'm glad someone other than me has noticed it as well. I clicked on my use page to see if anyone had posted replies to any of my comments the other day and thought at first that I had clicked on the firehose or worse, Idle. I did something I've never done before for the simple fact I didn't know what else to do, and posted a journal entry asking what the fuck happened to the user page.

        Please, do what you will with Idle/Firehose, no one really reads those anyway, but leave the user page alone, it's genuinely useful... or at least it was till you fucked with it.
        • Re: (Score:3, Insightful)

          by blackest_k (761565)

          Agreed
          I want mine back as it was. This is a pretty pointless post in itself
          but really the only way to get noticed is if enough of us bitch about it.

           

        • by mikael (484)

          I noticed this too - the first thing I asked myself was "WTF is my last comment in green - where are the comment listings?"

          I did manage to find them by clicking one of the buttons on the top (I've forgotten which one now, but it seems to have disappeared anyway).

          All the references to "Friends" seem to have disappeared as well - I only have one or two friends now - there used to be a whole list.

          What purpose does this change serve?

        • Me too (Score:3, Insightful)

          by kiwimate (458274)

          'Nuff said. Except it's not enough because this sorry excuse for a redesign is still there. Oh, god, it's like a 15 year old with no concept of color got let loose with FrontPage and wanted to do a MySpace lookalike but without the same professionalism and restraint.

        • by sammydee (930754)

          Go to help and preferences at the top, click Viewing under the Discussions section and uncheck "Use Beta Index"

          There, back to good old slashdot!

          Sam

          • Actually I already have that unchecked. Doesn't help. I think maybe if I uncheck the Enable Dynamic Discussions box that might do it, but i actually like the new discussions system (as implemented on most threads, the ones on Idle are crap). I want an option to just revert the user page back to the old non-crap design, not everything (although if you could get Idle to look a little less like crap that would be good to).
      • Re: (Score:3, Informative)

        by aztektum (170569)
    • by WiiVault (1039946) on Monday December 01, 2008 @03:29PM (#25950683)
      To add to this the comments page is no longer rendering correctly on iPhone Safari firmwire 2.2. The overlays on the right block the comment scores.
    • Let's create a Slug-In (Slash-plug-in) that links our content to Facebook, then create a group called:

      "One Million Slashers Against the "NEW" Slashdot Layout", LOL!

      Hell, we might even be able to "share"/donate karma, and overrule the SlashLords who engage in or idly stand by while ogres abuse the moderation and scoring system out of retribution and user-burying (in a "don't feed the trolls" mentality)...

      But, first, the Slug-In Plug-In. But, i wonder if Facebook could be slashdotted, or if Slashdot could be

      • Re: (Score:2, Insightful)

        by davidsyes (765062)

        Jeesus, some people (like whomever modded me off-topic) just hate to have (or let others in on) fun. Don't you realize that LAUGHING or helping someone laugh is a lot more healthier than disparaging a single person? Not as if i'm a politician with so much power over others that i MUST be under scrutiny for the good of the public.

        I thought i was being funny. Maybe YOU don't know the issues of facebook for f/b users who hated "their" view of their profiles changing. There is a parallel here.

        Besides, last week

    • by Anonymous Coward

      Here, here! WTF happened to "simple usable table of your comments" and "logical tabbed interface along the top?"

      BRING BACK SNACKS^W THE OLD USERPAGE!

    • by Rhapsody Scarlet (1139063) on Monday December 01, 2008 @05:35PM (#25952453) Homepage

      Same here. I happened to like the old userpage, now all I've got is this pseudo-idle mess with the actual posts crammed into a little corner. I didn't ask for idle, I didn't ask for the firehose, I asked for a user page!

      I think this is a sign that Slashdot has well and truly fallen for Incessant Redesign Disease, where they just have to change the design of everything every now and then to 'keep it fresh'. Nevermind if no one complained about the old design, or if you can't actually think of any way to improve on the old design, you've got to keep it fresh!

      Note to the Slashdot staff: You know all those +5 modded rants about Vista? You're doing the SAME FUCKING THING. If the site design needs changing, we'll let you know.

    • Re: (Score:3, Insightful)

      by sootman (158191)

      +1. I was happy that I could undo all the JavaScript bullshit on the Slashdot front page and the story pages by logging in and setting my prefs but the user page looks like the database was trying to swallow Digg and threw up.

      It's like Yahoo mail. Overall pretty good but when I log in to email I want to see my fucking INBOX, not this crappy summary+news+other crap I never look at. ESPECIALLY sucky since their most recent redesign REMOVED keyboard shortcuts (like shift-control-C to check for new mail, i.e. l

    • by sootman (158191) on Monday December 01, 2008 @10:39PM (#25955097) Homepage Journal

      HOLY FUCK! As if the new user page weren't bad enough, it mixes the classic green color scheme with whatever the theme is for the current subdomain, if you happen to be on one. You thought http://slashdot.org/~CleverNickName [slashdot.org] looked bad? Check out http://yro.slashdot.org/~CleverNickName [slashdot.org] or http://games.slashdot.org/~CleverNickName [slashdot.org] or http://it.slashdot.org/~CleverNickName [slashdot.org]!!!!!

      Orange links on green? My eyes! Ze googles, zey do nossing!

    • It's a terrible redesign. The css for comment previews renders "i" tags as blockquotes both in Firefox 3.0.4 at least and depending on the section you are in (main/yro/politics/it), the colour scheme can make the text and like on your homepage go from difficult to see to practically invisible. Was this even tested, or is it being rolled out first to users who have displeased the site most, first?

      The main homepage does not even link to comments made anymore, and instead has a ghastly mix of comments, and sto

  • The One (Score:4, Funny)

    by Tyrannicsupremacy (1354431) on Monday December 01, 2008 @02:55PM (#25950109)
    I sure hope this SCO doesnt start killing all the other fantasy dimension SCO's and absorbing their power...
  • I always thought that in America, a jury was a jury of peers, by which I presume they mean peer to the defendant, not to each other. (Now, mind you, that is an opinion formed from many years of watching TV, not on actual legal definitions or documentation of what constitutes a jury.) So, if SCO is getting a jury trial, who or what constitutes the jury? Companies? Submarine patent holders? Victims of hostile takeovers? Who are SCO's peers?

    Or do I have the whole concept wrong?
    • Re: (Score:2, Funny)

      by reginaldo (1412879)
      The jury is composed of servers running various flavors of Unix.
      • You missed a perfectly good opportunity for a Beowulf Cluster joke. It looks like you're new here, so we'll let it pass, this time.

    • by ari_j (90255)
      The "jury of your peers" thing is more accurate when you are talking about a criminal case. In reality, you are entitled to a jury selected from a panel that represents a cross-section of the community in which the case is venued. If you are on trial for a crime, venue will be where the crime was committed and the jury will consist of people who live there, which likely are your peers on one level or another. But the actual term "jury of your peers" is just a handy moniker for journalists and TV writers,
    • Re: (Score:3, Interesting)

      by whoever57 (658626)

      I always thought that in America, a jury was a jury of peers, by which I presume they mean peer to the defendant

      I suspect this language is really a hangover from English law, where a peer of the realm (ie. someone with a seat in the House of Lords) was entitled to be tried by other peers of the realm, whilst commoners (ie, the rest of the population) were only entitled to be tried by other commoners. I have no idea if this right still exists for peers of the realm.

      • Correct. I'm pretty sure that an British lord must still be tried by a jury of lords. However, a "jury of your peers" in the US is mostly a tautology--in the US there is no titled nobility, and thus *everybody* is your peer

      • I suspect this language is really a hangover from English law, where a peer of the realm (ie. someone with a seat in the House of Lords) was entitled to be tried by other peers of the realm, whilst commoners (ie, the rest of the population) were only entitled to be tried by other commoners.

        Actually, it was a holdover from English law in that a commoner was entitled to be tried by other commoners, rather than be tried by the nobility (who, one might suspect, is less likely to give fair judgement to one of th

    • It will be a jury of people, of course. A "jury of your peers" means that it will be a jury of regular citizens taken from the area you live in. It does not mean some special test is performed to make sure they are in every way equal to you.

      The jury of your peers thing was designed to prevent two things:

      1) The government stacking the jury with it's own people. For example the government making a law saying "All jurors must be active law enforcement officers and must pass special selection of the prosecution

    • Re: (Score:3, Funny)

      by snspdaarf (1314399)

      I always thought that in America, a jury was a jury of peers

      Flapping was too much of a problem, so now only the jury foreman gets an AS number.

    • by db32 (862117)
      Oh no no no, you are confused. In this case "peers" means people who pee. No wonder people are so confused about our court system.
  • "Last week, the net was all abuzz with speculation that SCO was finally gone and done for."

    s/speculation/hope/

  • by Anonymous Coward
    If they continue their litigious behavior, perhaps $CO can file bankruptcy again. Either that or go head to head with someone a little more like themselves, the Church of $cientology, which would be terrific entertainment.
  • Groklaw is a wonderful resource. That said, PJ is trolling here. She she herself has rather authoritatively explained, there is no legal basis for SCO to attack the clear meaning of the original Agreement (contract) with hearsay evidence - especially from second and third hand sources. This is an insurmountable legal obstacle, unless the 10th Court of Appeals wants to make new case law. (From looking at their record, it looks like they don't).

    But hell, if we're thinking implausible nightmare scenarios

    • hush your mouth my puppy, if this really were groklaw, you'd have just been deleted.
    • But hell, if we're thinking implausible nightmare scenarios, Barack Obama could have a heart attack right now, Biden and Hillary could split, the Republicans could win on that basis, McCain could have a heart attack in a couple of months, and we could be all saying "President Palin" a year from now.

      Hey, could happen. Right?

      No. Supposing Obama died of cardiac arrest and Biden died or refused to take office, the current sitting Speaker of the House, Nancy Pelosi, would become president until a new president qualifies. (The specifics of how a new president qualifies are unspecified -- this would be left up to Congress)

      • by fishbowl (7759)

        >No. Supposing Obama died of cardiac arrest and Biden died or refused to take office, the current sitting Speaker of the House, Nancy Pelosi, would
        >become president until a new president qualifies. (The specifics of how a new president qualifies are unspecified -- this would be left up to
        >Congress)

        I don't know where you get that idea. If, say, the Speaker of the House becomes president, it's clearly "for keeps", until they leave office or the term expires. Congress doesn't get a take-back unless

      • While Barack Obama is currently called "President Elect", technically he really isn't yet. All that has happened so far is that he has won the majority of Presidential Electors pledged to him. According to US Code at 3, USC 7, the date that the Electoral College meets to actually vote for the next President of the United States is the first Monday following the second Wednesday in December. In 2008, this will be on December 15.

        What happens if a "President-Elect" dies before being elected by the college

  • Honest to God, just when you think it's over...out comes the villian who you thought was
    finished comes back wheeling a knife/machette/bazooka/half frozen Codfish.

    • Murphy: You know, on TV you always got that guy that jumps over the sofa.
      Connor: And then you gotta shoot at him for ten fucking minutes, too.

      -Boondock Saints

  • SCO still has to get out of bankruptcy. Unless they find an outside investor, that's hopeless. In this market, they're unlikely to find an outside investor. They'll have trouble getting financing in any form. I expect Chapter 7 liquidation by spring.

    Anybody who buys SCO for the litigation rights gets stuck with the potential liability in the IBM lawsuit. That's a big liability, IBM has good lawyers, and IBM was winning when the bankruptcy put that suit on hold. IBM made $11 billion in profits last

  • I mean, appealing is just about always an option. But is there really any realistic chance of it succeeding and their dream coming true? Are we talking "SCO's hypothetical chances of winning SCO v IBM when all we knew was Darl's BS statements to the press" chances, or "SCO's chances of winning SCO v IBM after the judge demanded all their evidence and all they showed was errno.h" chances? As I understand it, you can't win an appeal on a factual basis, the appeal is instead all about any procedural errors

    • Re: (Score:2, Funny)

      As I understand it, you can't win an appeal on a factual basis, the appeal is instead all about any procedural errors made during the main trial that could be the basis for overturning the result.

      Kinda/sorta. Appeals courts don't decide the facts of the case. Appeals are about matters of procedure or law.

      And as far as I can tell, the judge did everything possible to follow procedure and give SCO as much rope as they needed to hang themselves. So, on what basis is SCO going to argue their appeal? Are there any possible levers there?

      Well, it's possible that SCO could argue that the judge either misinterpreted or otherwise failed to apply the law correctly in any number of areas. As far as I can see, most of these areas would probably relate to evidence that was excluded by the judge before the trial even began -- during the discovery phase.

      That's if -- and only if -- SCO has the money to keep the paying the lawyers. And I bel

      • As far as I can see, most of these areas would probably relate to evidence that was excluded by the judge before the trial even began -- during the discovery phase.

        Except that was mostly in IBM, not Novell.

    • by deck (201035)

      The procedural error in The SCO Group's view is that they were not allowed a jury trial. They have thrown a bunch of other stuff into the application for appeal but that is their main point. If the appeals court overturns Judge Kimballs final rulings and any preliminary rulings it would go back to his court for a jury trial. I don't know if Darl McBride and company are slick enough con-men to pull off fooling a jury but they might. Even in a civil trial, I believe that hersay evidence is inadmissable.

  • Boggled (Score:3, Insightful)

    by polyomninym (648843) on Monday December 01, 2008 @03:39PM (#25950839)
    After years of hearing about their BS tactics, trying to sue all sorts of businesses, I don't even know what they do anymore. I'm partly joking, but you rarely hear anything about them beyond court cases. Usually, you hear about a company doing something dumb/stupid for a while, then you hear about some product they are releasing or something new they are doing; you know, like companies that provide a service or a product. Not with SCO. I just don't understand how any company like that could ever expect new customers or continued contracts with any dignity. I know they shot themselves in the foot so many times, but most companies I've seen do this in the past are at least worked on something substantial while lawsuits continue. end rant
  • "I'm doing a school project, daddy. It's about what makes America great. What does?"

    "Why, that's simple -- it's our endless system of appeals."

    [paraphrased, of course]

  • "Still Alive" by Jonathan Coulton?

  • by debrain (29228) on Monday December 01, 2008 @05:51PM (#25952647) Journal

    Generally, though with some exceptions, a judge decides the law of a case, and a jury will decide the facts. If there is no jury, a judge decides law and facts. The facts are almost always decided at what's called the "court of first instance", and the facts are based upon submissions to the court through affidavits, documentary evidence, and sworn witness testimony ("evidence"). It is the duty of the trier of fact to decide, where conflicting stories exist, the credibility of the evidence. Usually in civil trials a fact is "found" where the trier of fact decides that on a balance of probabilities (i.e. chances greater than 50%) a fact is true.

    An appellate court, which one appeals to after a decision at the court of first instance, generally modifies the decisions of the court of first instance in only specific circumstances. Those circumstances typically include a mistake in the interpretation or application of the law, or the creation of new law based upon fundamental principles of justice.

    Generally, however, the appellate court is never a trier of fact (as a judge or jury is at the court of first instance). An appellate court is not privy to the assessment of credibility, direct or cross examination of witnesses, etc., it generally cannot call witnesses, parties to the proceeding cannot introduce new evidence (unless it is crucial, and even then in only limited circumstances), etc. As a general rule, appellate courts determine law, but not fact. The facts were already decided at the court of first instance. For that reason, the standard for changing the facts of the court of first instance by an appellate court is exceptionally high, usually with a test being described as something like the facts found in the court of first instance were "patently unreasonable", which is to say politely "absurd".

    Generally the policy behind the exclusivity of fact-finding being by a court of first instance is that parties get one shot at the evidence, which is to encourage full disclosure and expedition of the entire court process. It also specializes the Judges of the courts, and creates "higher courts" that may focus their attention on logical and policy questions. With exceptions, it is often, but not universally, thought that higher courts will attract greater academic aptitude.

    That being said, if there is either a patently absurd finding at the court of first instance, or alternatively there is a procedural unfairness, sometimes an appellate court will send the proceeding back to a court of first instance for a new trial.

    I think it would be rather odd for SCO to get another crack at the facts. It is rather likely that, given adequate funding, they could keep at this for quite some time.

Maybe Computer Science should be in the College of Theology. -- R. S. Barton

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