decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
2 DaimlerChrysler Orders and 1 Scheduling Order Going Forward
Sunday, September 12 2004 @ 08:05 AM EDT

There were two orders signed and filed in the DaimlerChrysler case. They are not identical. That's very odd. For that reason, on Friday, I contacted the court to find out which one was the final and why there were two. What I learned was something much more interesting: there is a Scheduling Order, on stipulation by the parties, with a court date set for the end of November. Evidently SCO has decided to go forward in the DaimlerChrysler case. Or backward, depending on your point of view.

Somehow, Napoleon's invasion of Russia comes to mind.

As you will recall, DaimlerChrysler won its motion to dismiss everything that mattered. The only issue that couldn't be settled as a matter of law was whether 30 days was a reasonable time period in which to demand certification by licensees under the contract terms or if DC responded quickly enough. The contract was silent on the issue, so the judge couldn't dismiss that part also on summary disposition. I'm sure she would have if she could have, judging by her demeanor and the speed with which she ruled on the rest.

So SCO had the opportunity to try to demonstrate that it suffered some level of damages by DaimlerChrysler's taking longer than 30 days to respond to their demand for certification. They told the media they probably wouldn't proceed, but it looks like that isn't the case. A Scheduling Order on stipulation means they do intend to go forward. Or normally it would mean that. With SCO, you just never know. But that is what the court told me it means.

And so they trudge onward, through the deepening drifts, not deterred by their thunderous defeat so far. They smell a discovery opportunity, after all, and they can't resist. The deepening snow as they march onward, heads down against the wind, supplies running low, and boots wearing thin, does not provide them sufficient warning. Very well. Onward, by all means. I'm sure the judge will be thrilled to see them again in her courtroom, litigating this truly non-vital non-issue against a company that has not used SCO's products for nearly a decade. Unless, of course, they plan to do discovery and then retreat from the fray and not proceed further. That would be my best guess. DC was an IBM customer, was it not?

Now, about the orders. There were the two orders, one dated August 9 [PDF] and one dated August 11 [PDF], and the latter has the hearing transcript [PDF] attached to it as Exhibit A. The wording is not quite identical, as you can see by looking at the title and the final paragraph. It was the title that probably upset SCO, because the final paragraph really means about the same thing.

Under the court rules there in Michigan, a party can file an order within 7 days of a hearing, and then the other side gets to object, if it so wishes. DaimlerChrysler won the motion with the one exception, so it put in the order, the one marked August 11. SCO objected, and actually they had a point about the title, in that technically the motion was granted only in part. It was like 99% granted, but the issue of the 30 days was carved out.

Interestingly, though, it objected not only to the title and the last paragraph, wanting it to say the motion was "granted in part and denied in part" instead of just "granted", but it also objected to the hearing transcript being attached to the August 11 order. I've no doubt they would prefer no one ever read that transcript, especially this part of the judge's decision:

"However, the contract very clearly does not require certification of the various clauses contained in the agreement as 2.05 relates to the current use of the software by its unambiguous terms.

"Thus, Defendant is not required to certify, for example, that it has not exported the software to a prohibited country. Specifically, Defendant is not required by 2.05 to certify compliance with 2.06, 4.01, 7.05, 7.08, 7.09 . . . as requested by Plaintiff's correspondence.

"Therefore, any claim for failing to certify compliance with those sections of the agreement are properly dismissed pursuant to (c)(10) as Defendant has no contractual obligation to make such certifications."

The final order, the August 9 one, merely references the hearing, without having a transcript attached. Somehow, and the court was unable to explain why or how, probably because the transcript of the hearing also needed to be filed, and it was already attached to the first order, it also got filed on August 11, and we now have two orders listed. Even though the August 11 document appears to be later, that is merely the filing date. As you will notice, there is no date of signing by the judge, although she did sign it. It is actually the first version and the one dated August 9, I was told, is the operative one. The August 9 version is signed by attorneys for both sides and was signed and dated by the judge.

Confused? You aren't the only ones. Who can keep track of these people? Even the courts are having a time of it. Judge Kimball's schedule for the 15th in the SCO v. IBM case lists the following, as eagle eye Frank Sorenson noticed:

  • Motion Hearing [152-1] for partial summary judgment on claim for declaratory judgment of non-infringement
  • Motion Hearing [144-1] amended motion to dismiss
  • Motion Hearing [144-2] amended motion to stay count 10 of counterclaim
  • Motion Hearing [255-1] for partial summary judgment on Breach of Contract claims

As Frank writes, "I think the extra entry for the hearing is likely to just be an error, since 255 isn't IBM's motion for PSJ on Breach of Contract Claims, but SCO's ex parte Motion for Leave to File Over-Length Memorandum in Reply to IBM's Supplemental Memorandum in Opposition to SCO's Motion to Dismiss or Stay Count Ten of IBM's Second Amended Counterclaims -- (ugh...say that 10 times fast...)." SCO is suing so many entities in so many places with such heavy motion practice that even the courts are getting mixed up. You can verify the numbers and what they correspond to on Pacer, which for the IBM case is free. As you will see, the motion for summary judgment on the contract claims is number 225 [PDF], not 255 [PDF]. Unless I'm confused myself, I don't believe the breach of contract claim matter is fully briefed yet.

And finally, SCO has been given more time to answer Novell's Motion to Dismiss, until September 24. Novell stipulated to it. Note the Freudian slip in the Order, which was written by SCO, judging by the header and it being signed off on by Novell. I gather SCO is beginning to feel more like the hunted than the hunter in that case. Either that or they can't keep track of it all either.

************************************

STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

______________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

DAIMLERCHRYSLER CORPORATION,

Defendant.

Civil Action No. 04-056587-CKB

Honorable Rae Lee Chabot

__________________________________

Joel H. Serlin (P20224)
Barry M. Rosenbaum (P26487)
SEYBURN, KAHN, GINN, BESS AND
SERLIN, P.C.
Attorneys for Plaintiff [address, phone]

James P. Feeney (P13335)
Thomas S. Bishoff (P53753)
Stephen L. Tupper (P53918)
DYKEMA GOSSETT PLLC
Attorneys for Defendant
[address, phone]

________________________________

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
DAIMLERCHRYSLER CORPORATION'S MOTION FOR SUMMARY DISPOSITION

At a session of said Court, held in the Oakland County Courthouse
in the City of Pontiac, County of Oakland, State of Michigan, on
Aug 09, 2004

___________________________

PRESENT: Hon. Rae Lee Chabot, Circuit Court Judge

This matter having come before the Court on Defendant DaimlerChrysler Corporation's Motion for Summary Disposition, filed on April 15, 2004; Plaintiff The SCO Group, Inc. having filed a Memorandum of Law and Affidavit of William Broderick in opposition to DaimlerChrysler Corporation's Motion for Summary Judgment on June 16, 2004; Defendant DaimlerChrysler Corporation having filed a Reply Brief in support of its Motion for Summary Disposition on June 30, 2004; and the Court having considered the papers submitted by the parties and hearing argument from their counsel at a duly noticed hearing on July 21, 2004, and being otherwise fully advised in the premises,

IT IS HEREBY ORDERED that Defendant DaimleryChrysler Corporation's Motion for Summary Disposition is GRANTED in part and DENIED in part, such that the Court will grant summary disposition as to all claims except for SCO's claim for breach of contract for DaimlerChrysler's alleged failure to respond to the request for certification in a timely manner, for the reasons stated on the record at the July 21, 2004 hearing.

___[signature]___
Hon. Rae Lee Chabot
Circuit Court Judge

AGREED AS TO FORM:

___[signature, 8/9/04]___
Barry M. Rosenbaum (P26487)
Counsel for Plaintiff The SCO Group, Inc.

___[signature, 8/06/04]___
Thomas S. Bishoff (P53753
Counsel for Defendant DaimlerChrysler Corporation


  


2 DaimlerChrysler Orders and 1 Scheduling Order Going Forward | 442 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: Hiro Protagonist on Sunday, September 12 2004 @ 08:26 AM EDT


---
I Grok... Therefore... I am.

[ Reply to This | # ]

Offtopic trolls, and slapstick comedy.
Authored by: darkonc on Sunday, September 12 2004 @ 08:29 AM EDT
A pretty little cage for them all.

---
Powerful, committed communication. Touching the jewel within each person and
bringing it to life..

[ Reply to This | # ]

I'd make Daimler Chrysler pay
Authored by: Anonymous on Sunday, September 12 2004 @ 08:36 AM EDT
Ha. I'd like to be on that jury. I'd award SCO 37 cents, the price of postage
for their letter that went unanswered.

[ Reply to This | # ]

OT, misc links, etc.
Authored by: jbeadle on Sunday, September 12 2004 @ 08:38 AM EDT
Thanks,

-jb

[ Reply to This | # ]

At least ?30 million? left to burn through...
Authored by: dyfet on Sunday, September 12 2004 @ 08:42 AM EDT
The SCO law firms no doubt understand they have some 30 million left to
potentially "collect". In that sense, less ethically inclined firms
might well choose to milk SCO dry even on completely ineffective, but still
billable, actions. If so, then clearly SCO has managed to hire the
representation that they deserve.


[ Reply to This | # ]

DCC counter
Authored by: Anonymous on Sunday, September 12 2004 @ 08:44 AM EDT
Does this open a opportunity for DCC to counter sue SCO for breech of contract?

Does the 30 days matter when the letter from SCO didnt follow the letter of the
contract? or when the reply is - NONE -

Ron

[ Reply to This | # ]

Hearing transcript prediction (* guess *)
Authored by: RealProgrammer on Sunday, September 12 2004 @ 08:52 AM EDT
"Yeronner, we have been harmed in a most serious way by the failure of this
foreign-owned ..."

("Objection!" "Sustained.")

"...company to respond to our reasonable request to know what dat fo ...
dat company has been doing with our property. We've all been up nights just
worrying about it. Our future product strategy has been put on hold. I would
put the damage at billions of lines of ... sorry, wrong page ... billions of
dollars.

"We have attempted to settle dis here dispute. We just asked them for a
couple o' doze shiny Viper tings and a nice Eagle Vision for Ralph's grandma.
Negotiations broke down when dey claimed dey don't make the Eagle Vision any
more. Can you believe dat, yeronner, dey don't make it any more, as if dat's
even relevant?"

---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

Whay are they going ahead ...
Authored by: alanhughes2004 on Sunday, September 12 2004 @ 08:59 AM EDT
... with such a petty action? While I cannot see into
whatever passes for Darl's mind these dates, I'm willing
to bet that he is getting desperate for something that
that they can then spin as a legal "win". With SCO's share
price currently below $4 (and threatening to drop below
$3) Darl needs something positive to prop up SCO's image
to the investors. Having been hammered by AZ and now
facing the IBM steamroller (set to crush *real* fine) DC
is about Darl's only hope of getting some good news.

[ Reply to This | # ]

This truly is going too far
Authored by: savage on Sunday, September 12 2004 @ 09:01 AM EDT
Ya gotta feel sorry for DaimlerChysler .... all they wanna do is make and sell
cars. Now they are all mixed up in this mess ... and no-one (probably not even
SCO) knows why! It does illustrate why no-one wants to do business with SCO
anymore. You leave the "SCO fold" and get sued for it 8 years later.
Talk about a blindside hit, and on a technicality!! This is going too far for
belief !!! Truth is stranger than fiction.

---
Savage

In the 60's everyone took acid to make the world appear wierd
today everyone takes prozak to make the world appear normal

[ Reply to This | # ]

SCO Strategy...?....
Authored by: kberrien on Sunday, September 12 2004 @ 09:07 AM EDT
Does this all point to SCO's strategy, and their assessment on how things will
proceed? Fighting a loosing, or minimal gain battle in DC, when your short on
cash (however they do have a cap) doesn't make sense when its needed for the
real fight, IBM.

However, what if you were convinced you'd loose in IBM anyways...? hum...

[ Reply to This | # ]

Which way did he go...
Authored by: brian on Sunday, September 12 2004 @ 09:15 AM EDT
IT IS HEREBY ORDERED THAT Defendant Plantiff The SCO Group, Inc. ...

Even SCO doesn't know who is who here. You can't pay for entertainment as funny as what comes out of the darkest pits of Utah these day.

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

What!!???!?
Authored by: Latesigner on Sunday, September 12 2004 @ 09:42 AM EDT
I really want to find out how they were hurt by a company they hadn't done
business with in the last 7 years.

[ Reply to This | # ]

Foundation being set by SCO - SCO wants to be known as crazy legal pitbull!
Authored by: Anonymous on Sunday, September 12 2004 @ 10:18 AM EDT
Foundation being set by SCO - SCO wants to be known as a crazy legal pitbull!
... with no brain!

As this will in SCO's mind scare folks into paying for their Linux license!

Remember, they got to keep the pressure up in order to attempt to turn around
those SCO source numbers! They figure that if they hit at the same theme that
someday their victim will begin to bleed and then they can feast.

They are living by the laws of the jungle, if they don't get some blood flowing
(even expensive lawyer bill blood flowing from their identified prey)... well,
then they will starve to death.

In the jungle, anything goes, if it means survival... SCO has no option but to
attack, attack, attack, even if the chances are slim they hope that everyone
else will be afraid and will melt those frozen linux license dollars into
SCO's waiting mouth (vs taking a chance of being attacked by them)... Sounds
like the mob extortion tact doesn't it. It is ... and the sooner that some
state AG's see this and side with the consumer the better!

This wild pack of SCO dogs, including the SCO management and Boies (who has a
VESTED INTEREST in SCO by contract) needs to be put on a short and tight
rope/chain and a willing judge, with some wild west style backbone to his or her
character, is needed to help do it!




[ Reply to This | # ]

No phone call
Authored by: Anonymous on Sunday, September 12 2004 @ 10:29 AM EDT
As I recall, SCO didn't even follow up their letter with a simple phone call.
So they may try to argue that DC's failure to reply within 30 days resulted in
court costs, but they made no effort to mitigate those costs. Given that
failure, what can they hope to gain with this case? The mind boogles.

[ Reply to This | # ]

Time for an updated scheule of upcoming events
Authored by: Thomas Frayne on Sunday, September 12 2004 @ 10:52 AM EDT
If anyone can figure it out.

[ Reply to This | # ]

$31 million cap
Authored by: tizan on Sunday, September 12 2004 @ 10:53 AM EDT

At the rate they are filling and litigating...when can anybody estimate that the
lawyers will reach the cap of 31 million ?

Because i guess after that even the lawyers would want things to move fast...as
i don't think they would want to work for 'free'.

They are not stupid...they are not going to make money (beyond the cap) by
winning as there is nothing to win except if somebody comes and buy SCO at an
inflated price....



---
tizan: What's the point of knowledge if you don't pass it on. Its like storing
all your data on a 1-bit write only memory !

[ Reply to This | # ]

Is "sewer service" still legal?
Authored by: QTlurker on Sunday, September 12 2004 @ 11:07 AM EDT
INAL, IAAT (I am a techie). Therefore, I don't understand why SCO is allowed to
bring this last matter to court.

Basically, they relied on "sewer sevice" for delivery of their
important missive (drop it in the sewer and let it find its way). IIRC, they
admit that they mailed the letter to a known old address, and made no further
attempt at communication. No second notice, no copy to the publicly registered
corporate office, no attempt to introduce themselves, no follow up call from the
sales department. They have shown no good faith attempts resolve their issues.
Why didn't the Judge toss this case and tell them to talk to DC.

What sort of discovery is SCO entitled in this matter? Can they turn this into a
"give us all your code ever" show? Or are they limited to deposing:

- USPO employees (yer honor, we don't recall seeing this piece of mail, but if
we got it, it would have been returned to sender within 30 days),

- DC mailclerks (yer honor it was soaking wet when we fished it out of the
river, it had to be dried and chemically treated to make it readable, but it
still smelled bad, and the retoration company was slow because they were busy
drying other audit notices from some company in Utah),

- contracts administrators (yer honor we have no contracts with the SCO Group,
and the letter smelled fishy, per S.O.P. we tossed it -- we figure if it is
real, then the sender will get back to us), and

- retired DC project managers (yer honor, we called the last USL rep to say we
were retiring their product, but their phone was disconnected, later we sent USL
our new mailing address -- but it was returned as undeliverable).

[ Reply to This | # ]

Big picture: SCOX legal strategy
Authored by: overshoot on Sunday, September 12 2004 @ 11:24 AM EDT
It doesn't matter whether SCOX is doing a corporate kamikaze run for shadowy FUDmeisters, trying to get bought out for pain-minimization, or really trying to terrify extortion victims into "SCO Source" "insurance."

No matter which way you slice it, what they're doing is maximizing their victims' legal costs. It doesn't even matter that they're racking up massive legal costs themselves, because the point is that they're demonstrating that they're willing to rack up those costs. Sort of like "killer bees" which die when they sting something, they make opposing them expensive for their victims too.

That, I think, is why they're so anxious to get to discovery in all of their cases: it lets them roll up enormous expenses for their victims. It also explains why they ran as fast as possible from Red Hat: there was no upside there with them on the defensive, and no way to counterattack since Red Hat had nothing discoverable. In other words, the Red Hat case has no PR value.

In the end, the legal cases aren't important except as support for the PR message: "Using Linux is expensive, and using it without SCO 'insurance' is cripplingly expensive."

[ Reply to This | # ]

$31M litigation cap => marginal cost of DCC litigation may be zero
Authored by: Anonymous on Sunday, September 12 2004 @ 11:25 AM EDT
Given the cap of $31M on the current litigation, and the fact that SCO will
almost surely hit the cap, that means that the marginal cost of further DCC
litigation to SCO may be zero.

So they will go ahead and see what they can find in discovery.

I hope DCC eventually counters with a lawsuit against SCO for abuse of process,
and complaints of barratry with the State Bar, against the SCO attorneys.

[ Reply to This | # ]

Time for a DC to Settlement?
Authored by: Anonymous on Sunday, September 12 2004 @ 11:30 AM EDT
Seems that this screwy action is to force DC to settle for some nominal sum to
avoid another $200,000 (estimated) in legal fees.

Do ya think DC will cave?

[ Reply to This | # ]

2 DaimlerChrysler Orders and 1 Scheduling Order Going Forward
Authored by: Anonymous on Sunday, September 12 2004 @ 11:46 AM EDT
Wait just a sec, I think DC should make NEWSCO provide documents proving
transfer of all copyrights and contracts from OLDSCO before DC should be
considered late in response to validate licences or contractual agreements.
Either way since NEWSCO didnt provide DC with these documents to begin with, DC
should be excused since transfer of contract management was not properly relayed
or conveyed prior to legal action. How is a corporation expected to manage it's
obligations if it has no information about the transfer of management
responsibilities. From the DC point of view, the contract asks that all
information be held confidential, and then they have a company (NEWSCO)
demanding to verify this confidential information. It would appear to be a
catch 22, if they respond to the possible bogus claim, they could be in
violation of said contract - if they dont respond they could be in violation of
said contract. Since they (NEWSCO) were asking for information outside the
contract, DC could claim that it would appear that they (NEWSCO) did not have
the actual contract before them, thus a no response would be the correct action?
Would this be an acceptable legal position?

[ Reply to This | # ]

SCO did not attempt to mitigate their damages
Authored by: Anonymous on Sunday, September 12 2004 @ 12:11 PM EDT
In the decade that DCC had SCO software - with the past 7 years where it was
not used, SCO (as the inheritor of ATT's software business - though not the
copyright owner) did not attempt to mitigate its losses by calling DCC to
register the software.

Once it did try to contact DCC, it received the registration information - that

none of the software has been used on any computer for 7 years.

Their contract with DCC further did not specify a time for registration - which

can be emphasized to a jury. How many lay people automatically send in
their registration cards for software? Few, I think.

[ Reply to This | # ]

2 DaimlerChrysler Orders and 1 Scheduling Order Going Forward
Authored by: irieiam on Sunday, September 12 2004 @ 01:09 PM EDT
It's sad that this applies to law too but if you fish long enough, you will
catch something...even if it's a little crappy. Punny, eh?

[ Reply to This | # ]

2 DaimlerChrysler Orders and 1 Scheduling Order Going Forward
Authored by: Anonymous on Sunday, September 12 2004 @ 01:50 PM EDT
My guess is that this SCO action is a prelude to offering to DC to settle, for a
tiny amount, like $699, much less than DC would incur in continuing legal costs,
PROVIDED that this settlement agreement is sealed. Then SCO can go around saying
that DC settled for an undisclosed amount, maybe even re-licensing SCOUnix.

[ Reply to This | # ]

The lawyers are calling the shots now
Authored by: StLawrence on Sunday, September 12 2004 @ 01:59 PM EDT
Here's my latest theory:

The law firm got stuff in exchange for their $31M cap. Among other things,
I suspect that they got the driver's seat. Not to surprising, considering how
many times Darl & Co. have shot off their mouth and shot themselves in the
foot with the same single bullet. So the law firm insisted that, in exchange
for the $31M cap, they would get to call the plays.

So far, sounds reasonable. But then the law firm takes note of the fact that
Flight TSCOG is on a high-speed head-first intercept course with the ground,
and that they're gonna have to put in A LOT of billable hours in order to get
anywheres near the $31M mark before the moment of impact. So they decide
to proceed full steam ahead on ALL fronts.

The lawyers don't have any delusions about winning anything. For them, this
isn't about winning cases -- this is about making money. And if my theory is
correct, all Darl & Co can do is watch their bank account get sucked dry.

[ Reply to This | # ]

225 vs 255 -- easy typo
Authored by: darkonc on Sunday, September 12 2004 @ 03:44 PM EDT
I think that we're dealing with a simple typo. Somebody got confused between 225 and 255. I'll stick my neck out and bet $0.25 that it should have been 225.

(the other option being that it was 255, and the clerk used the title from 225)

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Judge Kimball's Schedule ???
Authored by: NastyGuns on Sunday, September 12 2004 @ 04:12 PM EDT

Personally I think that the listing of #255 on Judge Kimball's schedule is totally mistaken. PJ is correct in thinking that this particular PSJ hasn't fully been briefed yet, but #262 sets the motion hearing for that particular motion.

This of course assumes that he hasn't actually decided to go ahead an rule on that motion. Not likely but one can hope huh? ;-)

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

DCC counter to SCO's timeframe
Authored by: tknarr on Sunday, September 12 2004 @ 05:48 PM EDT

DCC has the perfect counter to SCO's claim of 30 days to respond: "Your Honor, DCC agrees that 30 days would be a reasonable timeframe to respond to a request for certification per the contract. But, as Your Honor noted in the dismissal of the rest of this case, a request for certification per the contract wasn't what SCO submitted to us. Any timeframe would have to include not just a reasonable time to respond but also a reasonable time to determine what parts of the request the contract actually obliged us to respond to. If 30 days is reasonable for a clear request for exactly what is in the contract, certainly an additional 60 days wouldn't be unreasonable to analyze a request as far-reaching and outside what's specified in the contract as we received. In addition, as plaintiff has admitted to having sent the document to an address no longer in active use, the timeframe would have to include time for the request to be examined, the proper recipient determined and the request actually delivered to the person responsible for handling it." I suspect DCC can come up with enough precedents to support 100 days being well within accepted norms for the situation as it exists, in which case can't the judge decide the matter without referring it to a jury?

[ Reply to This | # ]

SCOg legal standing to bring suit
Authored by: publius_REX on Sunday, September 12 2004 @ 07:01 PM EDT
This has probably been hashed out at least FFFFh times here, but why hasn't any of the SCOg victims challenged SCOg's legal standing to bring suit. There has been a change of control at AT&T/USL/Novell/SCO/Caldera/SCOg slightly more than once. After all this hash, they have the right to sue because they say so?

It's like: Hey! Who said you could drive across my bridge from Brooklyn? You owe me a big fat toll. Why? Because I said so. Your Honor, make them pay me.

And no one ever questions this in the courts. The only explanation I can think of is that SCOg has redacted evidence to prove they own some rights. But I have seen nothing in all the stuff published on Groklaw to lend any credence to that theory. What have I missed?

(If this is dumb, please only throw little stones; big rocks hurt!)

[ Reply to This | # ]

2 DaimlerChrysler Orders and 1 Scheduling Order Going Forward
Authored by: blacklight on Sunday, September 12 2004 @ 08:05 PM EDT
I understand that the terms of SCOG's UNIX license never stipulated a reply time
window. Reporting once a year is a feature of that UNIX license, so I take it
that current licensees should have 12 months to respond. However, DC is NOT a
current licensee, and as a former licensee, DC is logically under NO obligation
to respond let alone comply. I expect that any reply from DC that is based on
what I just stated should put the kibosh on any request for discovery by SCOG.

The judge is allowing SCOG to go forward on discovery as to why DC took more
than four months to respond. SCOG is in a pickle, because SCOG has to phrase the
discovery request to fit the latitude given by the judge and no more than that.
If SCOG misphrases the scope of its discovery request, then DC will object to it
as an inappropriate fishing expedition and the judge won't allow it to go
forward. Frankly, SCOG's going forward with their discovery request will work
against them, because the only outcome will be to establish not only that SCOG
must stick to the terms of its UNIX license but that SCOG is not even entitled
to a 30-day, 60-day, 90-day or 120-day response. SCOG's UNIX licensees have
everything to gain by SCOG pushing forward - and at no risk to themselves.

I suspect that SCOG may hold the November hearing as a bargaining chip to
preempt a DC countersuit: SCOG doesn't get countersued and in exchange DC gets
back to selling cars.

[ Reply to This | # ]

Vlad the Impaler-the correct historical precedent
Authored by: Anonymous on Sunday, September 12 2004 @ 08:58 PM EDT
Napoleon is the wrong historical precedent to look at for this action. Vlad the
Impaler (the real Count Dracula) is more like it.

He killed between 40,000 and 100,000 peeople and ALWAYS found some EXCUSE to
kill them. One story is this fellow had a woman impaled because her husband was
wearing a shirt that was not long enough.

The corpses of the many people he impaled were displayed to teach the public a
lesson.

In our updated version, the case of SCO it's DC's money draining not their blood
that the Count wants AutoZone, IBM etc. to behold, to teach them a lesson of
what happens when you try to kill one of the "Undead". No matter how
many times you think they're dead they rise again to attack.


Are my suspisions that this is the case well founded? Well, you know how when
immigrants use to come from the "Old country" the immigration folks
would shorten and otherwise screw with their names, well it's kinda suspicious
that if you drop 3 letters and transpose 2 from Dracula you get a name with a
familar ring to it.

[ Reply to This | # ]

SCO will try for an amended complaint
Authored by: Anonymous on Sunday, September 12 2004 @ 09:26 PM EDT
OK ... SCOG could decide they only want to proceed with discovery and then drop
the case, but such discovery on what is left of the existing complaint would be
very limited. More likely is that they will move to amend the original
complaint to get IP issues back in. Remember that the virtual dismissal of the
original complaint was based on the fact that they were trying to drag parts of
the USL/DC contract into the certification process that clearly did not belong
there. I believe any good lawyer can find some basis for trying again using
some other pretext. They will not win: for one thing, there is going to be a
seriously annoyed judge for them to contend with. However, this one still has a
long way to go.

[ Reply to This | # ]

two problems
Authored by: Anonymous on Sunday, September 12 2004 @ 09:50 PM EDT
To collect damages SCO has to do two things. First it has to prove that it was
unreasonable for DC to take longer than 30 days to respond. If it proves that,
then it has to prove that the delay did SCO some sort of harm. If SCO says the
harm was the expense of filing a lawsuit, then DC replies that it should have
made a phone call first.

[ Reply to This | # ]

What kind of discovery?
Authored by: rao on Sunday, September 12 2004 @ 10:13 PM EDT

What kind of discovery could SCOG ask for in order to determine if 30 days was a reasonable deadline?

[ Reply to This | # ]

Getting to the Appeal....
Authored by: Anonymous on Sunday, September 12 2004 @ 10:39 PM EDT
My guess is that they will lose on this on also, then appeal both. Sort of
clearing out the remaining roadblock for more litigation.

Should take about three years.

[ Reply to This | # ]

"Prior art"
Authored by: Anonymous on Monday, September 13 2004 @ 12:24 AM EDT
Do we know of any previous cases that addressed something similar -- failure to
provide a compliance certificate, when the defendant didn't use the software for
years?

Is there any "prior art" to this? Prior art is important because it
may even be possible to dismiss the entire case, based on the similar rulings
from the past.

[ Reply to This | # ]

  • OT: Ok PJ - Authored by: Anonymous on Monday, September 13 2004 @ 01:04 AM EDT
  • "Prior art" - Authored by: jccooper on Monday, September 13 2004 @ 01:42 AM EDT
  • Pr(ior art)ecedent - Authored by: Anonymous on Monday, September 13 2004 @ 06:12 AM EDT
Vexatious litigation?
Authored by: Anonymous on Monday, September 13 2004 @ 09:15 AM EDT
The matter at issue is totally trivial, SCO made no good faith attempts
whatsoever to resolve it prior to litigation despite this being the obviou sand
normal course of action, the cost and effort of litigation totally outweigh any
conceivable damages. IANAL lawyerbut surely this is classic vexatious litigation
and SCO and their lawyers are putting themselves at risk by purusing such a
pointless legal action.

[ Reply to This | # ]

Read your Contracts and Comply!!!
Authored by: PrecisionBlogger on Monday, September 13 2004 @ 09:46 AM EDT
Everyone, please don't forget to learn the chilling lesson underlying this silly
lawsuit. Read your contracts! If you're required to send some kind of yearly
notice to the vendor, COMPLY!!

Also if you have a chance, ream your vendor out for failing to automate this
process. SCO's software should have nagged the administrator daily (each year)
until the compliance form, presented on the spot, was filled out and sent off
over the Internet. Norton nags you when it's time to do something, why can't
SCO?

- The Precision Blogger
http://precision-blogging.blogspot.com


---
- Precision Blogger

[ Reply to This | # ]

New Complaint?.
Authored by: Anonymous on Monday, September 13 2004 @ 11:16 AM EDT
What do you bet there will be a new complaint?

From what I understand all contracts have implied terms of "fair
dealing" and "good faith." Lawyer types can expound on this.

It is not too far of a stretch for SCO to claim that DC "substituted"
Linux, an unauthorized version of SCO's Unix to avoid paying Unix license fees.
They will then claim that this is an obvious breach of DC's obligations of
"good faith" and "fair dealing" under the contract.

Presto -- new cause of action.

[ Reply to This | # ]

"Endless loop" or "Pay my fees"
Authored by: Anonymous on Monday, September 13 2004 @ 01:16 PM EDT
Is SCO just trying to keep the cases "depending" on each other and
"endless" or possible attempting to recover costs of suing DC by
saying "... they wouldn't respond, we had to sue, repay our expenses"
....

[ Reply to This | # ]

Milestone event?
Authored by: jim Reiter on Monday, September 13 2004 @ 01:35 PM EDT
Tuesday -> TSGday maybe something will happen?

[ Reply to This | # ]

2 DaimlerChrysler Orders and 1 Scheduling Order Going Forward
Authored by: Anonymous on Monday, September 13 2004 @ 02:36 PM EDT
A stupid question:

Could the judge chose to refuse a case?

Notwhitstanding jurisdiction, etc., is there a point where a court can say,
"enough waste of taxpayer money", and decide not to hear a case.
Could for example the Michigan judge recommend the parties to duke it out in
small claims court?

[ Reply to This | # ]

Why DC didn't reply
Authored by: trs on Monday, September 13 2004 @ 04:09 PM EDT
"We got this letter from some 'company' that we dont do business with, have
never done business with, asking questions about our internal structure. We
ignored it, together with the other junk mail we get, assuming that if it was
genuine we would get other mail/phones calls from the company but we instead got
a lawsuit.

It is standard practise here that we dont give details of anything internal to
any unrelated company."

In most places I've been in over the last 20 years if you get a phone
call/email/letter from somebody you dont know you wont even give them your
bosses first name let alone their phone number no matter what the other party
says. I've no reason to believe that DC is any different and if the SCO letter
had landed on my desk it would have either been binned (after finding out we
have never used them) or put at the bottom of the pile as something to
"deal with later". I am actuallty suprised that after being sue'ed
they managed to find the original letter.

[ Reply to This | # ]

Clear lesson for those with contracts with SCO or Canopy Group companies.
Authored by: Anonymous on Monday, September 13 2004 @ 05:10 PM EDT
This is a very clear and unambiguous lesson for all
companies with contracts of any kind with SCO or any
Canopy Group company. For all of those companies out there
the lesson is clear: mail out letters terminating
contracts with SCO or Canopy Group companies immediately
or risk getting hit by a harassment lawsuit by SCO.

Daimler Chrysler, Autozone and IBM did no wrong, but all
have one thing in common: they were unfortunate enough to
have contracts with SCO. Don't put yourself in this
position.

According to Computer Associates (CA), CA got into a
contractual dispute with a Canopy Group company and were
forced to buy some illegal SCO Linux licenses as part of a
settlement - proof if proof were needed that Canopy is
acting in concert with SCO. If you have any kind of
contract with any Canopy Group company including service
and support contracts of any kind with SCO, don't be
surprised if Canopy passes on details to SCO so that SCO
can sue you.

[ Reply to This | # ]

TSG asking court to delay ruling on psj
Authored by: mossc on Monday, September 13 2004 @ 05:29 PM EDT
<http://news.com.com/SCO+challenges+IBM+witnesses/2100-7344_3-5364048.html>
;

Not sure if this motion was filed today or not but the article was filed today.



[ Reply to This | # ]

Basis of Estimate
Authored by: Anonymous on Monday, September 13 2004 @ 05:37 PM EDT
SCOG claims they have been damaged. Subpoena all of their financial records
since they have not filed a Basis of Estimate for those damages. Forensic
Accountants will find it interesting reading.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )