Posted on 07/06/2005 10:59:39 AM PDT by ShadowAce
SCO Group Inc's attempt to change its legal case against IBM Corp for the third time has been denied by the judge, who has also set the two companies a deadline to present their respective evidence "with specifity".
Both companies have been set an interim deadline of October 28 to submit their evidence, with a final deadline of December 22, a date that will loom large for the open source community, which has consistently denied SCO's claims that Linux contains its copyrighted code.
The Lindon, Utah-based Unix vendor first sued IBM in March 2003 claiming IBM breached a contract by contributing Unix code to the Linux open source operating system. It has subsequently changed its case twice, but has been denied the chance to do so a third time.
"To permit the proposed amendment would expand this already sizable and complex litigation and would serve only to delay its resolution," wrote US District Judge Dale Kimball in his order. "Furthermore SCO has twice amended its complaint during this litigation, and the deadline for seeking leave to further amend has long-since passed."
SCO had wanted to amend its complaint to take in what it claimed was recently uncovered evidence that IBM breached copyright and the terms of the Monterey joint development agreement by incorporating Unix System V Release 4 code into its AIX Unix operating system for Power processors.
SCO had claimed the terms of the Monterey agreement only gave IBM access to Unix System V Release 4 code for Intel-based processors, but Judge Kimball was unmoved by its argument. "It appears that SCO - or its predecessor - either knew or should have known about the conduct at issue before it filed its original complaint," he wrote.
SCO had argued that IBM's ninth counterclaim - which requests a declaratory judgment that its AIX and Dynix Unix operating systems do not infringe SCO copyright - gave it the scope to expand its claim.
However, Judge Kimball also agreed with and granted IBM's motion to narrow the scope of the counterclaim to refer to IBM's continued distribution of the operating systems after SCO purportedly terminated its licenses to do so. "The court finds that IBM did not intend for the counterclaim to be interpreted as broadly as it has been interpreted," wrote Kimball.
There was some good news for SCO in Kimball's motion in that he granted the company's motion to compel IBM's chairman and CEO Sam Palmisano for deposition. The company will have only four hours to depose Palmisano, however, rather than the seven it had requested.
Despite repeated public declarations that it has evidence Linux contains Unix code that infringes its copyright, SCO has yet to present any evidence to the court, leading to Kimball to state in February that: "it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities."
The company now has an interim deadline of October 28 to do so following IBM's complete production of discovery material on or before August 1, according to Judge Kimball's new scheduling order. The interim deadline also applies to IBM's presentation of evidence related to its counterclaims
The final deadline of December 22 will give both parties an opportunity to update their evidence based on any newly uncovered evidence before the close of fact discovery on January 27, 2006, and any other discovery matters on March 17, 2006.
That will be followed by a series of expert reports, and dispositive motions, before a special attorney conference and settlement conference on January 30, 2007. The five-week jury trial is now scheduled to begin on February 26, 2007.
how many more times can sco be slapped down and still be taken seriously?
One of these dates is going to be when IBM re-files its motions for summary judgement, likely to have them granted. The judge previously recognized their merit, and definitely was inclined to grant them, but told IBM to refile after discovery.
Still? Were they ever? :) Perhaps by some, but never by me.
well, some on this board did. I wonder if they still do...
Btw, where is bush200 and GoldenEagle???
They've been pinged. I wouldn't hold my breath waiting for them to admit they were wrong, though.
Theyll hop on and try to change the subject..
"before the close of fact discovery on January 27, 2006, and any other discovery matters on March 17, 2006."
[sarcasm = on]
This is a victory for SCO.
IBM's plans all along were to run SCO's legal team ragged in a prolonged court case. SCO's pockets aren't nearly as deep as IBM's, plus SCO is also in legal battles with Novell ($1.2 billion in cash reserves), Chrysler and AutoZone.
The reason it's a victory for SCO is that they've "only" got 9 more months of discovery before the trial begins. Who knows, this thing might be decided by the time Longhorn really does come out?
[sarcasm=off]
They'll harp on the one tiny victory given to SCO in the order, which is allowing them a short (much shorter than SCO desired) deposition of IBM's CEO.
I find it more than funny that you'll give MS a pass when they have been convicted of crap because in your opinion is was ten years ago so whats the big deal. At the same time you'll ride IBM when SCO is getting smacked around in court by almost everyone they have sued of late.
SCO is the one who has constantly sought to broaden the scope of this case, because they have yet to prove the initial claim (that IBM put SCO IP into Linux).
They've never needed to. The charge is ludicrous on its face. Linux code is wide open for all to see. The ONLY thing SCO needs to do is show some of that code to Judge Kimball, and it's a slam dunk case.
Yet here we are--2 years later and what is happening? SCO is getting its butt handed to it in court.
You still refuse to see (or admit to) that simple truth. Who's the weasel?
you're joking right?
how long have they had now since they opened this "go fish" case?
the "evidence" should have been available when the case was filed... or worst case, after the first discovery.
Wrong about what? I don't think IBM has a contract granting rights to use SCO code on Power processors, whether the judge allows it into this case or not.
http://www.forbes.com/enterprisetech/2004/08/04/cz_dl_0804sco.html
We're not going to see proof because Kimball denied SCO's motion to expand its complaint to cover code from non-x86 re SysV-Ver4.
THe origional claim had nothing to do with non-x86. it was all about IBM moving sco IP to Linux. If SCO wants to go fishing they should get a permit and find a lake like everyone else..
So what IBMS executive may be keying cars in the SCO parking lot as we speak, he could have robbed darls house and ran over his dog... should we just lump that into another discovery as well.
SCO claimed they had rock solid proof that IBM moved their IP into linux in violation of a contract... it turns out (two discoveries later) that they need to look at more stuff to prove what they said they already had proof of..
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