Talk:SCOvIBM-PSJ

Tom:

A brief observation: these pages could be harder-hitting by being less strident.

I have the feeling that you would like all kinds of persons to use these pages as a serious resource, but in particular, attorneys and paralegals for TSG, IBM, Novell, Red Hat, Daimler-Chrysler, and AutoZone, managers for those same companies, and judges and clerks for the related cases.

If that is the case, then insults and personal attacks must be seriously curtailed, and in particular, allegations of lack of integrity must be very carefully handled, and kept to an absolute minimum. As an example, when I saw the comment "this is the stupidest yet", my first thought was "Oh, Really? And where did YOU go to law school, and in which State did YOU pass the Bar exam?" Even if it is undeniably "the stupidest yet", you have lost your audience.


 * That was the title of a comment in Groklaw that I was citing. I did not state it myself, and I try to avoid making such statements.  Sorry for the delay.  I was in the hospital.  TomFrayne 16:21, Aug 1, 2004 (EDT)

In law school, lawyers are trained to avoid calling anyone a liar. Even if that person does nothing but lie, there are more effective ways to deliver the message. I was never satisfied with the law school explanations I received, but I sure knew the gut feeling in court when I heard the allegation. It grates, badly.

Alleging that someone has acted in "bad faith" is only a hair less obnoxious than calling them a liar. For an attorney, dishonesty by lying, and dishonesty by bad faith, are unprofessional and unethical conduct, deserving a professional sanction, up to and including permanent loss of license. I suggest that, at most, you make a single allegation in a Wiki area like the SCO suits, and that only after posting the incontrovertible statements, use a phrase like "and these inconsistencies may show bad faith".


 * In the section that I think you refer to, I mentioned the actions and statements I objected to, and ended with the statement: "If IBM is right, that implies that SCOG has not complied with the court orders with respect to the evidence it cited. If SCOG cannot supply a valid reason for this non-compliance, it acted in bad faith."  I think that this is close enough to what you suggested.  TomFrayne 16:21, Aug 1, 2004 (EDT)

If you believe that unethical conduct has happened, then the proper place to make the allegation is in your letter to the proper Bar Committee for unethical conduct. Do not do this until after your attorney is under retainer. These people will sue for libel, possibly even if you are perfectly correct.

For my part, given the effect on the audience, I would not use it at all.

--AllParadox 18:00, Jul 28, 2004 (EDT)


 * I have already sent several criminal complaints about SCOG to the SEC, but my purpose here is not to accuse SCOG of crimes. IBM's reply on the PSJ motion is due on August 15, and I am trying to organize the undisputed facts and arguments that IBM might want to put into that reply.  For example, SCOG is bragging about its good faith in complying with the court orders, and a court decision in favor of SCOG might cause the PSJ motion to be delayed while SCOG seeks 2 billion lines of AIX code in addition to the hundreds of millions of lines that SCOG already has.  TomFrayne 16:21, Aug 1, 2004 (EDT)

Tom:

Some thoughts on order of issues.

Put first the procedural steps that must be handled before the merits of the PSJ itself. This would put dismissal issues first, not because they are most important, but because your readers can concentrate on the substance once they are assured that you have addressed the issue. You do not have to be correct to be believed, but you have to address it. The most effective argument I see is IBM's assertion that this is a compulsory counterclaim, prompted by TSG press releases. This probably nails it.

Put "stay" issues next. Substantive arguments for Summary Judgment are pointless until the issue is "ripe" for decision. In order, IMHO, IBM requests for discovery, then two court orders to respond, then TSG responses and observations about where they appear to fail to address Judge Wells' order, then the order to IBM to produce, and TSG's complaint about the format and contrast IBM's production format with TSG's production format (scanned images of paper, I believe), then IBM's certificate on production, and TSG's certificate on production. After that, time of filing of IBM CC-10, and TSG's possibly tardy 56(f) demand for more discovery. TSG may have a valid defense here that this relates to an issue brought up late in the suit and that they have not had sufficient time to respond. Address the defense with the list: initial IBM discovery demand long ago, two orders to produce, attorney's court presentation that this is about copyright (cannot recall name of counsel) including direct quotes, attorney's affirmation to the court of "30 days is adequate", the Christmas massacre, date of filing of CC-10, and delay before requesting more time for discovery and 56(f) filing. Contrast TSG certification that all discovery requests have been fulfilled. All this documentation and argument will establish that TSG has had far more than sufficient time to perform adequate discovery.

Now address CC-10, the substance of the Partial Summary Judgment motion. There are three issues here that are being intermingled, so separate them.

First, is there a justiciable issue? Put another way, if all of TSG's claims are proven to be true, will TSG be entitled to a judgment? I think the correct answer to this is "yes". This is a very narrow question.

Second, is there substantial evidence to support all the elements of TSG's claims? In other words, is there anything critical to TSG's claims that is missing? It is unfair to IBM to force them to go halfway through a trial, only to get to a point where the court has to grant IBM judgment because TSG has no evidence to support a necessary element. In my opinion, this is a serious problem for TSG. If I were trying the trial for IBM, I would demand proof of every foundation before allowing evidence on the next issue.

Proof of properly constituted corporation: only proper proof is a certificate from Utah Sec. of State. If I were IBM, I would have a copy on hand, just in case.

Proof of "successor in interest". Proper proof is TSG keeper of records as witness, bringing in the APA from Caldera/oldSCO/Tarantella to The SCO Group, dated around 2002. Big problem is that this must clearly show that TSG is merely a reorganized Caldera/oldSCO/Tarantella. My hunch is that it is not, but Utah statutes or case law may support such a conclusion. This needs serious legal analysis.

Proof of Novell-SCO APA assignment from Caldera/oldSCO/Tarantella to The SCO Group. First, I do not think it ever existed. Second, by its own terms, the APA cannot be assigned (narrow legal definition of "assigned" here.). A workaround would might be a written consent from Novell to assign to TSG, but I do not think this exists either. Burden of proof is on TSG. No assignment == end of case, I think.

Proof of Novell-SCO APA through the keeper of records.

Proof of Novell-SCO copyright assignments. I do not believe these exist. TSG will continue with their assertion that the APA transferred copyrights, and "scrivener error". This is contradicted by explicit terms of APA (an "integrated document"), attorneys certifications of review, lack of witnesses to attest to "scrivener error" (needs to be a "scrivener" - an outside person is irrelevant), other issues with APA, and Federal statutory requirements for a specific writing. Judges' opinion in the Novell case that no copyrights clearly passed may be relevant as a scholarly opinion (wasn't this Kimball also?)

Proof of USL-Novell APA, through Novell keeper of records.

Proof of USL ownership of copyrights, through ?Novell/Bell Labs? keeper of records. Very difficult problems here. Sealed USL vs. BSD judgment/settlement. IMHO, an adequate proof will include bringing in the sealed judgment and opening it into the SCO vs. IBM record. Very serious issues of BSD code being back-ported into Unix, without any copyright assignments. Worse, original records of who wrote what may not be in possession of keeper of records. Much of the old Unix was written by people like Richard M. Stallman, who were not employees of Bell labs or any entity under contract with Bell labs, and who just shared code around without signing any kind of copyright assignment. Further, because those people were not employees of Bell Labs, any attempted copyright registration by Bell Labs for their work would have been ineffective, and the work probably passed into the public domain as a matter of law, years ago. This is not a hurdle. A hurdle is a barrier about thirty inches tall. TSG is going to have to cross Mt. Everest barefoot on this one. TSG, unfortunately, has the burden of proof here. Every line of code they claim is being infringed must be shown to be properly owned by them here before they go on.

Proof of non-Ancient Unix. Broderick, for oldSCO? released a free license to versions of Ancient Unix. TSG has burden of proof, either that the license is invalid because oldSCO did not own copyrights for license anyway, or that protected code that is claimed was not part of Ancient Unix, probably because it was written as an update for Sys V from Ancient Unix.

Proof of non-Caldera, non-SCO, non-TSG Linux. Caldera, oldSCO, and TSG, have distributed Linux versions, apparently under the GPL. TSG has the burden of proof that all copyrighted code that they are claiming is not intentionally released under these distributions. If they fail to address the issue, they should lose.

Proof of direct copying lines of Unix in Linux. THIS IS NOT A DISCOVERY SANCTION. This is an issue of proof in anticipation of the jury trial. After the IBM discovery requests, and after TSG's certification that everything has been identified, IBM is entitled to say that no lines of Unix are directly copied into Linux. I do not know what is in the sealed documents, but they must satisfy every requirement above before they can be considered as proof of infringement. Lines of Dynix or AIX copied into Linux, alone, are irrelevant, IMHO. IBM wrote new code into Dynix and into AIX. IBM owns the copyrights on the new code.

Proof of derivative copying of Unix code into Linux. Again, this is not a discovery sanction. This is an issue of existence of proof, before trial. Same comments as for above. This one is a bear. This requires a Gates analysis. This is probably outside the scope of a Wiki support page.

Whew. OK. Third CC-10 issue: Sanctions. At this point, there should be a substantial accumulation of evidentiary citations and argument.

Whatever, cite relevant case law, using terms of art, supported with facts from the record, to show that TSG deserves to lose this now, for their failure to follow the rules. Part of the argument will refer back to the proof of direct copying, a few paragraphs above, showing that even if TSG is prejudiced by being sanctioned, their prejudice is small and difficult to determine.

--AllParadox 22:02, Jul 28, 2004 (EDT)


 * Over the next two weeks I plan to improve the organization of this set of pages, and I'll consider your suggestions while I am doing it. Your comments seem to be on Section 3, which is the first section I wrote, and I knew that it contained information that really belongs in other sections.  TomFrayne 16:21, Aug 1, 2004 (EDT)