SCO Having a Hard Time In Court

jamienk writes "The beginning of the end is in sight. SCO has been reprimanded for the second day in a row by a second judge in their campaign against Linux. Basically, Judge Wells ruled that SCO's vague claims of IP infringement will not be allowed to be heard in court, since it was all clearly a poor attempt at avoiding showing any evidence. Next, SCO will face compelling counterclaims against it by IBM." From the article: "At issue was whether SCO would be allowed to sneak in new allegations and evidence in its experts' reports that it failed to put on the table openly in its Final Disclosures, in effect, as IBM described it, reinventing its case at the eleventh hour. The answer today was no, it won't be allowed to do that. IBM had asked for this relief: 'Insofar as SCO's proposed expert reports exceed the Final Disclosures, they should be stricken.' More details will be arriving in a while, but assuming the early reports are accurate, we may assume that this is what the Judge has ordered." This is a follow-up to a story we discussed yesterday.

Re:Three's the charm!

[theonetruekeebler]

There will probably be a lot more than just one sentence handed out, when all this is over. Somebody might want to seize Darl's passport, because the SEC will be wanting a Very Meaningful Chat with him about the Lanham Act [wikipedia.org], not to mention running a pump-and-dump scheme from his own board room.

Right after the MS-Novel deal .. coincidence ?

[MrData]

Hmm lets see:

• SCO gets bitch-slapped by two Judges for legal shenanigans.(As MS has been in virtually every leagal case it has been in, especially the Anti-Trust Case).
• Just a couple of weeks earlier, MS and Novell join up to make a business deal that is so bad, even those involved with the deal can't explain it from a legal or business standpoint (which would be about the time that the SCO lawyers knew they were about to be taken to the wood shed ).

Now those not in the know are thinking "so what the hell does SCO have to do with MS or Novell ?" or even worse
"Those Slashdotters are just biased MS haters".

And the answer to these thoughts my young padawan learner (or MBA) are the following facts:

• Microsoft is an investor in Baystar Capital Managment who has invested at least 50 mil in SCO before the lawsuit (google for it if you don't believe me). Even worse, Lawrence R. Goldfarb, one of the investors in Baystart said MS promised to indemnify Baystar's investment from losses to to the suit.
• SCO's lawer is David Boies, the same lawyer who defended MS in its Anti-Trust suit against the US (and who was also repeatedly repremanded for legal malfeasance).

Which now leads us to the ultimate reason for why I believe these incidents are indeed related and not an accident ...
a motive !!

Both the SCO lawsuit and the MS-Novell agreement are designed to cast (at least to most tech-unsavy MBA types) a huge legal cloud over Linux specifically, and FOSS in general, of which Microsoft would be the only benefactor.

Case Closed

Well, sure! The MS/Novell is the new front.

[mshiltonj]

Now that MS has its shiny new cross-licensing patent contract with Novell, it now has a new opening in its war on Linux. They are probably pulling back all resources from the SCO front, getting ready to exploit this new angle for a few years.

Re:SCOX down 40% today

[jimfrost]

Back when Enderle was writing a lot of pro-SCO articles I corresponded with him a few times on it. He was convinced that SCO would win largely because they could put themselves in front of a jury as the little guy being beaten up by the big guy.

I completely disagreed; at the time, it seemed clear to me that SCO's entire case rested on an interpretation of the contract that amounted to SCO owning all the code that IBM wrote independently. I don't think juries generally like the idea of someone using vague contractual language to grab others' work, especially seeing as SCO didn't even do the original work.

I also argued that it was unlikely SCO had anything to show, given that they'd already been reprimanded for missing discovery deadlines; now I am not a lawyer but my impression is that ignoring the judge's orders repeatedly is not good for your case. And indeed, that seems to be what has caught them out. Enderle told me he'd been privy to some of the stuff they were going to show the court, but my guess is that he didn't understand what they were showing him well enough to realize they were blowing smoke.

I am convinced that SCO figured IBM would just pay them to go away, everyone would make a quick buck, and that would be that; it would probably have been cheaper than this protracted court battle. But IBM thinks longer term. Having put up this kind of fight, do you think anyone else will ever sue them over Linux IP? This fight will make Linux largely lawsuit-proof.

It will be interesting to see what Enderle says about this decision, if anything. SCO clearly hoodwinked him. But as wrong as he was, he wasn't alone.

Re:SCOX down 40% today

[mysticgoat]

I am convinced that SCO figured IBM would just pay them to go away, everyone would make a quick buck, and that would be that; it would probably have been cheaper than this protracted court battle. But IBM thinks longer term. Having put up this kind of fight, do you think anyone else will ever sue them over Linux IP? This fight will make Linux largely lawsuit-proof. [emphasis added]

I couldn't agree with you more.

Looking ahead a little bit to what might happen at the end of the SCO debacle... IBM has put together a legal bulldozer at no small expense to improve their business climate for the next 25 - 50 years when they could have just bought out Darl with pocket change. I'm guessing that IBM is prolly now looking around to see if this bulldozer can be used to make other improvements before it is dismantled. And when I try to look at the world through IBM's eyes, I see three targets that might be worth taking a run at:

1. Software patents. IBM has been quietly putting a number of its software patents into a kind of protective escrow situation where they cannot be directly used to generate income. My guess is that IBM is no lover of current patent law and prolly sees the whole body of existing software patents as being rather like a toxic wasteland, and the patent process being a drain on their revenues. It might make sense to use the legaldozer to do some environmental clean up in this area. There are legislative avenues that could and prolly are being pursued, but since there is this shiny yellow 40,000 horsepower engine with a big old blade on the front all warmed up and ready to go, maybe attempting some change through the judicial system would be worthwhile.
2. EULAs and the FUD that surrounds them. I don't believe IBM is using EULAs any more (if they ever did) and IBM prolly sees these as detrimental to the business climate they are attempting to nurture. Perhaps the IBM legaldozer could be used to remove these unsightly fences from the landscape and return the fenced off areas to the commons where Linux and IBM offerings flourish.
3. The whole digital copyrights arena: I'd really like to see IBM take this on, but I doubt that will happen. The other two possibilities are directly within the scope of IBM's mission and core business practices. Cleaning up the digital rights garbage pit seems like much more of a stretch.

In any event, SCO encouraged IBM to develop a powerful legal team. I think it would make a lot of business sense for IBM to look at targets worthy of this team's attention before taking it apart.