Groklaw's PJ Says SCO's Demise Greatly Exaggerated

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.'"

Bologna.

[Weaselmancer]

PJ, the arch-censor of Groklaw, desperately needs you to believe this

To believe that it's possible, or to believe that it's probable?

It seems like if she was looking for job security she would be arguing that it's probable. Instead she's arguing that it's possible. And we all know what possible means. I have a lottery ticket in my pocket. It's possible I've won. Sure as hell wouldn't call it probable though.

And FWIW, Groklaw does far more than merely keep an eye on SCO. Just the other day there was a good article about the Bilski ruling over on Groklaw. The Groklaw front page also has items about the cyberbullying case, and Harvard having a youtube channel.

If there's one thing PJ has probably learned from following the SCO story from the beginning is that you don't put all your eggs in a single basket.

Re:What sort of Jury?

[whoever57]

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.

Re:Please

[whoever57]

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 above, only after all the creditors have been paid.

Re:Please

[alexhmit01]

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 his money, but the drive still belonged to them until they shipped it.

Re:Please

[blackbearnh]

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.

Re:I agree

[rtfa-troll]

saw the type of deleting

the most interesting thing about it is that you can't always see it. The software Groklaw uses will still show your comment to your own IP address. I actually commented a few times about things I thought PJ might delete (criticism of her ban on "politics", where she doesn't really define what that means) and then checked if this was true. Sure enough; I had stepped over the line. From my own IP address I could see the comment. From all other IP addresses I tried it was invisible. Kind of cool really. Makes the Chinese govt. seem deeply unsubtle.

the real question however, is what's the alternative. Groklaw covers things that seem difficult to find in the same quality elsewhere. It's a bit like CNN. It's got it's US/conservative bias, but it's also got the money to cover things that few others can afford to cover.

Generally, appellate courts decide law, not facts

[debrain]

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.

Re:OT but I don't care

[u38cg]

Reading between the lines, it's pretty obvious that the /. crew have lost control of the site except on editorial matters. This post [slashdot.org] ought to convince you, if nothing else will. Note in particular the time interval in which those employees posted.