Message ID: 180925
Posted By: al_petrofsky
Posted On: 2004-09-16 09:48:00
Subject: SCO says AZ case not about Linux world

Here's my belated report from the hearing, including a
couple of things that I didn't notice mentioned in a quick
perusal of other reports:

I'm even more confident than I was before the hearing that
SCO's dismissal motion will be denied.

Kimball also seems to be seriously considering granting IBM
summary judgment on the issue. As SCO went on about its
discovery problems, Kimball asked "How does that relate to
this motion at this time on this counterclaim?" and then
followed-up with "IBM is saying discovery won't help on this
counterclaim: you have UNIX and linux". He wasn't saying he
agreed with IBM, but he made clear that he understood IBM's
argument, and that if SCO's answer to that argument was
unconvincing, then summary judgment would be granted.

I was surprised by a couple of revelations from SCO. When
Kimball asked about all the public statements last year that
SCO had already found UNIX code in linux, Frederick Frei
(one of SCO's lawyers not from Boies, Schiller & Flexner)
responded that most of those statements were based on a
comparison done by Caldera in 1999, and that that was done
by programmers rather than lawyers, and thus SCO needs
discovery in order to come up with any actual *legal*
evidence of infringement. Needless to say, no one last year
seemed to think that McBride was talking about 1999 when he
discussed the MIT team and the "deep dive".

Also, when SCO was arguing its motion to dismiss the
counterclaim, Robert Silver (a BS&F partner) said that the
AutoZone case "doesn't have to do with the world of Linux",
and that it "was very specific to AutoZone". In past legal
filings, SCO has claimed that the AutoZone case involves
AutoZone-specific issues and general Linux issues. It's
emphasized one or the other for different effects, but I'd
never heard it clearly state that no non-AutoZone-specific
portion existed. This is quite at odds with what SCO said
on page two of its April 23 opening brief to Judge Kimball
on the same motion that Silver was arguing:

> IBM is seeking to declare that a person or entity using
> Linux does not infringe upon SCO's copyrights and that
> some or all of SCO's copyrights are invalid or
> unenforcable. This precise issue will be litigated in a
> case filed by SCO against AutoZone

Message ID: 180933
Posted By: b29651
Posted On: 2004-09-16 09:59:00
Subject: Re: SCO says AZ case not about Linux wo

al thanks and will check your site for the write up
it is interesting to read the different reports and then read news articles
very interesting to say the least

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