Portions of SCO's Expert Reports Stricken

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."

Just a theory

[Fecal Troll Matter]

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:Total hypo, but what if you were SCO?

[KokorHekkus]

Well if the large hypotetical company gave full access to their source code control system for the alledged infringing products and then the judge said, after you'd had access for about 2 years, "Is this all you got?" I would cut my losses and bow out.

And this was actually what happend (except the bowing out part). SCOs lawyers have full access to IBMs CMVC (their version control system) and in a hearing Judge Wells asks SCOX lawyer "Does SCO have, can they provide, additional specificity?... I mean, basically, is this all you've got?" (source: http://www.groklaw.net/articlebasic.php?story=2006 0414162430240 [groklaw.net])

And, oh, I wouldn't go around saying "We will bring this much of that type of evidence into court before I actually did it. That will land you big fat Lanham accusations you know.

UnixWare and OpenServer: the real victims here.

[Anonymous Coward]

We often hear about how Linux has been victimized by these legal actions, but in the end the real victims will be SCO UnixWare and SCO OpenServer.

I know most people here probably haven't used such systems themselves, or at least not done so knowingly. The beliefs the morals of SCO aside, they're actually some fairly decent systems. They really harken back to the days of true UNIX, where simplicity was key and efficiency paramount.

It would be excellent if whoever controls the UnixWare and/or OpenServer codebases after these legal proceedings were to release it under an open source license. I personally think that a BSD or MIT-style license would be most appropriate. With some effort from the community, both systems could be brought up to a modern level. Considering how much of their use was on x86 systems a small fraction as powerful as what we use today, they really tend to fly on new systems.

This week isn't good?

[RedShoeRider]

"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]

Re:This has been going on for years

[diersing]

Especially when SCO goes bust and can't defend against the counterclaims, and a in a twist of fate SCO and all IP is awarded to IBM bring the whole thing full circle.

Re:Even Microsoft dropped SCO

[Dan Ost]

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.

Re:Total hypo, but what if you were SCO?

[swillden]

(posting anonymous coward for reasons that should be patently obvious)

Hi, Darl.

The Linux MACE ethernet driver (used on the SGI O2) is substantially the same as that in IRIX. Right down to the logic flow and variable names, especially in the PHY probe code. There's even a comment about loading in PHY errata; that reference appears only in the IRIX source code.

And your point is?

Are you trying to claim that AT&T wrote the IRIX driver and gave it to SGI under the Unix contracts? Or that SGI's implementation of that driver is somehow a derivative work of some other driver from AT&T?

There's UNIX code in the linux kernel; SCO is looking at the wrong company and in the wrong place.

Of course there's Unix code in the Linux kernel. But is there any that shouldn't be there? SCO hasn't been able to find any. Keep in mind that all of the BSD code is fair game, as is any original code written for Unix by companies other than AT&T and placed in Linux by the copyright holder.

Yes, SCO has this bizarre theory that any code that once rubbed against AT&T code belongs to them (or at least should be under their control), but not even SCO believes that's going to hold up.

Re:Just a theory

[Rogerborg]

You are TennSeven [groklaw.net] - or are ripping him off - and I claim my $5.

You will if ...

[brokeninside]

.... the format of the presenation and the selection of the data requires creativity. Note that this criteria has nothing to do with simplicity. A simple alphabetical list of names could very well be copyrighted if the presentation is unique and creativity was exercised in the selection of names that appear on the list. What can't be copyrighted are the facts, the names and phone numbers themselves.

For a very nice overview see Pamela Samuelson's Copyright law and electronic compilations of data [ifla.org]

Re:Strike Zillion, They're Out

[Doc Ruby]

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 to stop them from abusing our system, and us, is to make the lawyers and plaintiffs accountable for those ethics. Maybe the review trial can sentence them to suspension, or just a fine (though that just encourages them to take more baseless cases, hoping to hit the jackpot). Disbarment should certainly be on the table, especially for repeat offenders.