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IBM The Courts Linux

The SCO Vs IBM Zombie Shambles On ( 127

Long-time Slashdot reader UncleJosh writes: At the end of last October, the 10th Circuit issued an opinion overturning the lower court's summary judgement in favor of IBM on one of SCO's claims, sending it back to the lower court for trial. Shortly thereafter, IBM filed for a re-hearing en banc. On January 2nd, the 10th circuit essentially denied IBM's request, issuing a slightly revised opinion with the same conclusions and result.
The charge being reheard accuses IBM of "stealing and improperly using [SCO's] source code to strengthen its own operating system, thereby committing the tort of unfair competition by means of misappropriation" -- though that charged is based on an implied duty that SCO says IBM incurred by entering into a development relationship with SCO. "SCO believes that IBM merely pretended to go along with the arrangement in order to gain access to Santa Cruz's coveted source code."

The court's 46-page document adds that "We are now almost fifteen years into this litigation."
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The SCO Vs IBM Zombie Shambles On

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  • My god (Score:5, Insightful)

    by Vinegar Joe ( 998110 ) on Monday January 29, 2018 @04:47AM (#56025013)

    Somebody PLEASE put a stake in it.

  • by Anonymous Coward on Monday January 29, 2018 @04:58AM (#56025043)

    "We are now almost fifteen years into this litigation and still neither side is broke, like seriously wtf!"

    • by sg_oneill ( 159032 ) on Monday January 29, 2018 @05:04AM (#56025055)

      "We are now almost fifteen years into this litigation and still neither side is broke, like seriously wtf!"

      Oh SCO died of bankerupcy long ago. The last thing they did was sell off the right to sue to lawyers and promptly shat the bed and died.

      Frusturatingly for IBM, the one claim that stuck was that SCO owed IBM a *lot* of money, but instead of the handing over that money they spent it all on lawyers refiling again and again until there was nothing left for IBM to claim.

      Which ought be completely illegal, but apparently it is not.

      • by Opportunist ( 166417 ) on Monday January 29, 2018 @05:08AM (#56025059)

        This is the time when it should be legal to harvest the organs of CEOs to compensate the damaged party. The heart's probably unusable (provided it's present) but the rest should be usable.

        • by jrumney ( 197329 )
          Don't forget the lawyers who enabled them.
          • Ok, you have to do without spine and heart, but compensate with an extra helping of guts...

          • by syn3rg ( 530741 )
            Lawyers have only two working parts, the mouth and the a**hole; but they are interchangeable.
            • by jrumney ( 197329 )
              Interchangeable isn't the word I would have chosen when talking about transplant candidates. On a lawyer, yes, but on a normal person they are really both only usable for one purpose.
        • by rtb61 ( 674572 ) on Monday January 29, 2018 @06:16AM (#56025273) Homepage

          There is a way out of this. It is really rather nasty and has to do with legally targeting the law firm. Fund all cases against the Law Firm. Find all of their cases and help fund the opposition and let everyone know, use that Law Firm and you will likely lose because IBM will fund the opposition for a share of the action. Let's see who toughs it out then!

        • by mwvdlee ( 775178 )

          Considering what we've heard from them over the years, the gastrointestinal tract is also unusable; it seemed to work backwards.
          Perhaps the sphincter is still squeaky clean.

    • As others have pointed out Groklaw [] provided ongoing coverage of SCO vs the universe matters until August, 2013. At that point PJ gave up the ghost [] and quit running Groklaw. Groklaw's SCO vs IBM timeline [] continued to be updated with documents, including the summary judgement decision [] that was just overturned and returned to the district court for trial. That opinion has a decent history of the case with regards to SCO's only remaining claim against IBM.

  • by ytene ( 4376651 ) on Monday January 29, 2018 @05:33AM (#56025139)
    Originally, "The SCO Group" (TSG) that filed suit against IBM (and subsequently Novell) was a commercial company run by then-CEO Darl McBride. The original court case was presided over by Judge Kimball.

    During that case there was a great deal of fancy footwork by TSG's lawyers (Boies, Schiller and Flexner LLC), who were hoping to get the case to a jury trial without having to turn over the specifics of their "evidence" to the Court and thus to IBM. Their tactic of not showing their hand had two aims: to bluff IBM into thinking that their case was stronger than it really was - and to hold back the most damaging accusations until they could be delivered in front of a jury without giving IBM the ability to prepare a response.

    Duelling motions came to a head and eventually, after giving TSG all the lattitude he could, Judge Kimball announced that he would rule on an IBM motion to compel TSG to pony up their evidence. Before that could be discussed in a hearing [literally just a couple of days before] TSG filed for Chapter 11 Bankruptcy. It is worth noting at this point that when TSG filed for bankruptcy they were technically and legally solvent, but the Bankruptcy Court accepted their petition regardless.

    At that point everything on this thread of the story went a bit strange.

    The Bankruptcy Court appointed one Judge Kevin Gross to preside over the bankruptcy. Judge Gross then appointed a Trustee to be the caretaker for the Chapter 11-protected TSG - and this Trustee was himself a retired Judge. [Sorry, this gentleman's name and that of his company escapes me].

    From this point forward, the Trustee continue to try and fight the court case, all the while submitting invoices to TSG for their services. Although there was quite a bit of noise from this point forward, nothing substantive came of the appointment of this Trustee other than - in the opinion of this observer, anyway - the Trustee being able to milk the last of the liquid assets out of TSG and to push the company from not-quite-Chaper-11 through to brink-of-Chapter-7 bankruptcy.

    At that point, with no more juice to suck out, the Trustee seemed to lose interest and the whole thing went quiet.

    Until now, that is.

    It's probably worth pointing out that the Trustee is itself a law firm, staffed, of course, with Law Clerks and Lawyers. Such an entity does of course go through brief periods of time when there is not enough work to keep every employee engaged on client-funded business. Rather than lay off an employee when that happens, the Firm will of course assign them activities which it hopes might have a future beneficial value. If miracles could happen and if TSG could prevail in even the tiniest part of an argument against IBM, then there would be a payout from IBM to the corpse. At that point, the Trustee would be able to reactivate any deferred invoices that they had accrued during the time that TSG has spent as a zombie.

    In other words, the original gang of SCO Group folk (Darl McBride, Sanjay Gupta and friends) that filed the original complaint are long, long gone. The zombine is now being prodded along by the company of the Bankruptcy Court-appointed Trustee. Finally, this looks to have become nothing more than a time-card-filler for that law Firm, who occasionally have enough spare time on their hands to write another motion and prod the zombie...

    Let's all hope a Court gives them a nice big slap for wasting Court time...
    • by Antique Geekmeister ( 740220 ) on Monday January 29, 2018 @06:34AM (#56025327)

      Years of this litigation were documented at []. The trustee is Edward Cahn. []

      • Thank you! I really should have looked that up...
      • by Anonymous Coward on Monday January 29, 2018 @07:55AM (#56025505)

        Years of this litigation were documented at []. The trustee is Edward Cahn. []

        And how fitting that his last name is pronounced "Con" because that's what this whole thing is.

        In the very first paragraph of this most recent filing by SCO we see The Big Lie repeated:

        The Santa Cruz Operation, Inc. (Santa Cruz) entered into a business arrangement with International Business Machines Corp. (IBM) to develop a new operating system that would run on a more advanced processor manufactured by Intel Corporation (Intel). The parties signed an agreement memorializing this collaborative effort and called it Project Monterey. Another technology company, The SCO Group, Inc. (SCO), then acquired Santa Cruz’s intellectual property assets and now brings this lawsuit for IBM’s alleged misconduct during and immediately after Project Monterey.

        The original SCO, The Santa Cruz Operation, sold their Unix business to Caldera. After the sale, Santa Cruz, the original SCO, changed their name to Taligent. It wasn't until a few years later, just before filing their original lawsuit against IBM, that Caldera changed their name to The SCO Group.

        The name change was done for the sole purpose of facilitating this lawsuit and creating confusion -- pretending that The SCO Group is the original SCO. An example of this was seen in 2004 when The SCO Group announced on their website the 25th anniversary of the company. The problem is, Caldera, the predecessor to The SCO Group, was only founded in the early 90s. 2004 was the 25th anniversary of the original SCO not the current phoney, pretend SCO.

        • After the sale, Santa Cruz, the original SCO, changed their name to Taligent.

          Tarantella. Taligent was an IBM spinoff.

      • I really miss PJ and Groklaw. This was almost fun when she was around, and that was a fantastic community of smart posters.
    • by MrL0G1C ( 867445 )

      Is there not a point whereby the judge says proceedings are taking too long, IE deadlines and will close a case if those deadlines are not met?

      • by ytene ( 4376651 )
        This is an entirely valid question, but, I suspect, a dangerous legal principle.

        Imagine a scenario where a plaintiff were seriously ill or otherwise unable to act... or a mirror of this case, but one in which the plaintiff actually had a legitimate complaint and weren't a shake-down artist. In these alternate scenarios, we'd want the law to give the party the time they needed to move their case forward. So I think that, for these reasons, a court will default to a position where it will allow the time if
        • I am a creature of darkness, not a lawyer (but I admit that I have a lot of lawyers on my torture chambers, they have the tendency to be sent to me when they die). But having said that, considering that the SCO long ago should have to prove that IBM would infringe her rights and to this day it did not, so why the case still continues today? If I were the judge of the case I would ask SCO to present the proofs of her statement and if it failed at this I would simply end the case.
          • by ytene ( 4376651 ) on Monday January 29, 2018 @09:49AM (#56025927)
            The point you raise consumed what felt like literally hours of court time during the pre-bankruptcy hearings presided over by Judge Kimball and Magistrate Judge Wells.

            There is a helpful article on Groklaw which covers this point:-


            in which there is discussion of an expression used by Magistrate Judge Wells during an evidentiary hearing. The analogy she used was that The SCO Group were essentially trying to perform the equivalent of accusing a shoplifter from stealing from Neiman Marcus [a US catalogue-based retailer, for non-US readers]. The Magistrate Judge basically told The SCO Group that what they were trying to do was (in accusing IBM of being the "shoplifter") say, "This thing we claim you stole. It's in the catalogue. You figure it out."

            The two legal Teams (BSF for The SCO Group and CSM - Cravath, Swaine and Moore - for IBM) duelled on this point during the hearing, with IBM actually using the BSF/TSG cited cases against them, showing that the cases proved the opposite of what BSF/TSG were claiming. Even this wasn't enough to have the claims thrown out by the Magistrate Judge.

            I would venture that the only reason that these claims remain and that this entire fiasco is still underway is simply because the original TSG filed for Chapter 11 literally just before a definitive ruling from Judge Kimball that would have blown their case out of the water. I'll go further: TSG filed for bankruptcy when they did precisely because they knew that the ruling would go against them and would sink their case. Their hope was that they could file for Chapter 11, swim along beneath the surface for a bit, then return with a new argument or new case when Judge Kimball got re-assigned. What they hadn't banked on was Bankruptcy Judge Kevin Gross deciding that the reason that The SCO Group got in such a mess was because of mis-management and deciding to appoint a Trustee. In some cases, after all, the Chapter 11 company is allowed to continue under existing management but simply with a protection-from-creditors shield in place long enough for them to be able to dig themselves out from under their troubles. Useful for legitimate Chapter 11 claimants, after all...

            I'm bound to mention, as an aside, that in the view of this observer there was something decidedly fishy about the appointment of the Trustee, Cahn. During one of the bankruptcy hearings, Judge Gross made a comment on his decision to appoint a Trustee along the lines of: "Given the nature of the circumstances of this applicant - and the legal nature of their worries - it would be nice if we could find a Trustee with, I don't know, some form of legal background..."

            And then, as if by magic, along comes (retired) Judge Cahn to save the day...

            What followed - and again, in the view of this observer - was a relationship between Gross and Cahn which stretched the boundaries of due process. It would be an exaggeration for me to say that Judge Gross was fawning over the opinions of Judge Cahn, but it was abundantly clear that the former held the latter in the highest of regard and was entirely willing to let Judge Cahn do pretty much whatever he asked for - the rulings were getting signed off thick and fast and every bit as quickly as they were made.

            In a situation like this it is true to say that there were losers all round, but the one thing I found most egregious were the "incidental" victims. For example, I recall that one of the creditors [who didn't get a dime, all the while Judge Cahn paid his own company to conduct legal research into the court case] was a small Mom-and-Pop pizzeria, not far from TSGs offices, who had provided the company with "pizzas on account". I just came away with this vision of Darl McBride and Co all sat round a meeting room table, with open pizza boxes piled high while they filled their faces, only to have them chortling
    • I get that at one point SCO had assets worth plundering and probably some recurring income from licensed patents. But hasn't all of that basically been drained off?

      I'm wondering what motivates anyone TODAY to sink money and resources into this case. It looks like it requires a multi-million dollar up front commitment to continued litigation combined with a very low chance of a significant payout.

      The backers seem like they would be better off just investing those resources in equities. If there's any equi

      • by Anonymous Coward
        IIRC the law firm got a one time payment to see the case through. My guess is that their only hope of any more money is to get something (win, settlement...) out of the case and are running it essentially on spare time (free time that they can't bill to someone else)
        • by Anonymous Coward

          > My guess is that their only hope of any more money is to get something (win, settlement...) out of the case

          That is true, but the real reason for continuing is that to stop would be a breach of contract and they may have to pay the one time fee back, or some other penalty.

          • by swb ( 14022 )

            I find it hard to believe a law firm would negotiate representation that required them to sink a lot of hours into a losing cause.

    • Back in the 80's, SCO was the only Unix available for the X86 platform. But the price was about $400-500, which was past the finch point of most software geeks at the time. You can't help but wonder what would have happened if they dropped the price to $99, and gave the world a decent alternative to MSDOS. Would SCO occupy the space that Linux has since filled?

      • That was the maddening thing at the time - the UNIX wars which prevented it from becoming the standard OS. That was a war in which everybody lost. For desktop computing UNIX and OS/2 were the only decent OS's (looking to the future) available. All of the other proprietary OS's had no potential for long term use - being tied to their particular proprietary platform, or just outright sucking (or both).

        At the time I thought that the biggest challenge facing the desktop computer industry was settling on a domin

      • That was exactly the point. Good or bad, SCO was actually making money as a viable company selling Unix based hardware & software. McBride correctly recognized Linux as death threat to his company. He purchased a couple of patents from dying Novel (which Novel got when it bought SuSE) and believed he owned all the rights to Linux. Darl then proceeded to hit everyone running linux with pay-up orders, many capitulated (like GM). That worked fine and dandy til IBM received one of SCO's payola demand
    • The reason it continues is: early in the case BSF (TSGs lawyers) needed to buy themselves out of owning part of the case though no one really knows. The price was a fixed price + limited costs deal until the case was finished.

      BSF cannot just walk away, discovery was finished before the bankruptcy leaving negligible ongoing costs, the case continues at BSFs expense and essentially free for the trustee. Doesn't take much chance of a win or reward to beat free.

      And the reason TSG wouldn't show their case claims

    • Sanjay Gupta and friends

      Sandeep, not Sanjay the TV doctor.

    • by jjohn_h ( 674302 )

      >>> Judge Gross then appointed a Trustee to be the caretaker for the Chapter 11-protected TSG - and this Trustee was himself a retired Judge. >>>

      He was retired and also utterly ignorant of computers and software in respect to technology and in respect to business. He sincerely believed the TSG stories.

      Anyway. He did milk the remaing liquid funds for his personal fees, but he had free legal services from the original TSG lawyers who pocketed a $30m global fee covering everything from here t

  • Flashback to 2003.

    Reading daily updates on slashdot
    Reading daily updates and comment threads from PJ on groklaw

    I can't believe that 15 years later this lawsuit lumbers on.

    How many tens of millions of dollars (hundreds of milions?) have both sides spent on this lawsuit?

  • by roc97007 ( 608802 ) on Monday January 29, 2018 @03:17PM (#56028355) Journal

    Hadn't we decided earlier (like, over a decade ago) that SCO didn't own the rights to the source code, that it never transferred from Novell? Or am I misremembering. This has gone on sooooo loooooong....

    • by ebvwfbw ( 864834 )

      That's my understanding as well. I have to wonder what happened to cause the judge to reverse this. Maybe he was baffled with bullshit?

May all your PUSHes be POPped.