Groklaw

Court Grants OLPC's Motions Dismissing Lancor's Claims - Update: Correction - US Case

Sat, 22 Nov 2008 11:10:16 -0500

Do you remember the horrible case against OLPC in Nigeria, where a company called Lancor claimed infringement of its design patent on a keyboard? They were asking for $20 million in damages.

I have some happy news from OLPC News' recent newsletter:

In the domestic Nigerian keyboard case, the court granted OLPC's motions to dismiss Lancor's claims. This means all of Lancor's claims against OLPC, Nicholas Negroponte, and Quanta were dismissed. Nicholas and Quanta are out of the case. OLPC will proceed with its request for a declaratory judgment in the matter. Many thanks again to the outstanding support from the legal team at Foley Hoag.

I am not surprised, in that OLPC told the court it never used the Lancor keyboard and the design registration Lancor relied on had expired. However, early news from the local court had been discouraging, but now comes this, and so another bogus claim bites the dust. But it's a crying shame a charity had to go through something like this at all. I'll try to get us more details, but I wanted to share this with you right away.

Update: I have been in contact with the OLPC folks. This news is not about Nigeria. It's about the US case, where the OLPC Foundation asked the Middlesex Superior Court in Massachusetts for a declaratory judgment of noninfringement.

Final Judgment in SCO v. Novell: SCO Loses Again

Thu, 20 Nov 2008 20:36:00 -0500

The final judgment [PDF] from Utah is here at last. It recites what the August 10, 2007 and July 16, 2008 orders said, but it also resolves the recent dispute over SCO's desire to voluntarily waive some claims and then bring them back to the table after an appeal, should it prove successful. Here's SCO's motion to voluntarily dismiss, and Novell's response, so you can verify that this judgment indeed represents another loss for SCO. You'll see that it was Novell that suggested the wording regarding SCO's voluntarily dismissed claims that we see in the judgment, that they be dismissed "without the possibility of renewal following appeal."

SCO caved on its voluntarily dismissed claims, then, and Novell did not. So, another loss for SCO. No matter what happens on appeal, then, SCO can't resurrect those claims. It can appeal the rest of the matters it lost in August 2007 and July of 2008.

Novell, however, in an identical circumstance, can pull its voluntarily dismissed claims out of its back pocket and go after SCO. And I'm sure it would. In the wording of the judgment, Novell has "the right to pursue these claims only in this action, should there be a subsequent adjudication or trial in this action." So if there were an appeal and SCO got the case sent back to Utah for a jury trial, for example, SCO's favorite daydream, then Novell could bring back to the courtroom all its voluntarily dismissed claims.

Here, in contrast, is the wording on the SCO claims from the judgment:

3. The remaining portions of SCO's claims for Breach of Contract (Count II), Copyright Infringement(Count IV), and Unfair Competition (Count V) are voluntarily dismissed with prejudice, without the possibility of renewal following appeal.

So, all the tricky language SCO suggested to the judge was for naught. Whew.

SCO Bankruptcy: SCO Withdraws Motion Re Confidentiality

Thu, 20 Nov 2008 07:44:55 -0500

SCO has withdrawn its "Motion of the Debtors for an Order Providing that Creditors' Committees are not Authorized or Required to Provide Access to Confidential Information of the Debtors or to Privileged Information", which it filed in September of 2007, when it first filed for Chapter 11 bankruptcy protection.

Remember that? They filed it back when SCO thought someone might care enough to actually form a creditors' committee. But since that never happened -- the top 20 unsecured creditors (SCO Group's and SCO Operation's list, PDFs) being mainly friends and allies of SCO -- it obviates the need to protect SCO's secrets from any such committee. There was supposed to be a hearing on that back in October of 2007, but that never happened, and so now for some unknown reason, they are clearing it off the docket.

SCO and Novell Settle Constructive Trust/Payment Matter "In Principal"

Tue, 18 Nov 2008 19:31:00 -0500

There is a bankruptcy hearing scheduled for November 20th, and there's a Notice of Matters Scheduled for Hearing [PDF] just filed that tells us that the issue of the constructive trust has been resolved "in principal" and there will be a stipulation or consensual order filed. Good Golly, Miss Molly. Is Novell finally going to see some of its money from SCO? Has somebody sprinkled fairy dust in the air or something?

All Psystar's Counterclaims Against Apple Dismissed! Told 'Ya - Updated: The Order as Text

Tue, 18 Nov 2008 18:53:00 -0500

Psystar's counterclaims against Apple have been dismissed, which does not in the least surprise me. I told you they were off the wall, in my view. The judge agreed. He curls his lip to add that he found Psystar's cases "unenlightening". That's legalese for "are you kidding??" Here's the order [PDF], so you can read all about it.

The judge did give them 20 days to try again to get it right, following the map he lays out for them to make improvements:

For all the above-stated reasons, Apple's motion to dismiss Psystar's counterclaims is GRANTED. Psystar may move for leave to amend within twenty calendar days of the date of the entry of this order. Any such motion should be accompanied by a proposed pleading and the motion should explain why the foregoing problems are overcome by the proposed pleading. Plaintiff must plead its best case. Failing such a motion, all inadequately pled claims will be dismissed without further leave to amend.

For more background, here's Apple's motion to dismiss, Psystar's Memorandum in Opposition [PDF], and here are Psystar's counterclaims to Apple's complaint.

What does it mean? It means the counterclaims are gone, and with them any motivation to settle on Apple's side, I'd think, and the complaint remains, unless Psystar can plead its best case within 20 days. Dum dee dum dum.

SCO Files an Amended Schedule F

Mon, 17 Nov 2008 02:12:44 -0500

SCO, or more precisely, SCO Operations has filed an amended Schedule F [PDF], its list of unsecured nonpriority creditors, or in bankruptcy lingo "creditors holding unsecured nonpriority claims". Here's the original Schedule F [PDF], if you wish to compare the lists. Schedule F is found on page 7 of the older PDF.

It is interesting to compare, even without fully understanding what it all means.

Answering Gene Quinn, Patent Attorney - Updated

Fri, 14 Nov 2008 21:04:00 -0500

Well. I got a very nice note from Gene Quinn. He's reading Groklaw. I'm reading what he is writing, because it's fascinating, and it's an opportunity to speak directly with a patent attorney who is a true believer.

His most recent article is one I think we should answer, since his fundamental question is this: why should software *not* be patentable?

From a conceptual standpoint why not allow for software to be patented. What is the harm? I know many of you reading this have now gone into an apoplectic rage, but conceptually why should software be treated any differently? Isn't the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none....
Software is not a mathematical equation, nor is it a mathematical language. How anyone who writes software or professes to understand software could argue to the contrary is beyond me. Do people who write software actually think they are sitting down and writing mathematical equations and stringing them together? It is absurd to have such a narrow view of software. When you write software you are trying to enable a device, such as a computer, to provide certain functionality given a certain stimulus. So you are writing instructions for a computer or other device and explaining how the computer or device needs to process information. You do not explain how to process information with mathematical equations.

If you would read his article in full and then answer him here, ~~in members-only space, I'll collect the best comments and try to tie it all together, if it works out well.~~ It's an opportunity to reach not only Quinn but all the other patent attorneys who do read what he writes.

Game on?

Update 2: I'm reading your comments, and I don't think I can improve on them. So I'll let you all speak directly, by making this article public now.

Bills in the SCO Bankruptcy Show Activity in the Swiss Arbitration

Fri, 14 Nov 2008 13:44:51 -0500

More bills are in for SCO to pay in the bankruptcy. Tanner, Berger Singerman, and Pachulski Stang all have filed for mo' money. From the bills, we can discern through a glass darkly what's been going on. Here's what: the Swiss SUSE arbitration shows activity. You can find it on page 11 of Berger's Exhibit A, where we see a notation that SUSE has filed a "submission" to the tribunal. It references "SUSE arbitration statement to tribunal" also, but it could be the same thing. This happened on 10/1/08.

And what else? Research and strategizing on the plan went on in October, which to me points to work on a cramdown. You don't have to research and strategize over a wonderful plan where sufficient money is available for one and all from a fabulously rich prince on a camel. At least by the end of October, there was just researching and strategizing happening, from what we can see in the bills.

Norris Did Attend SCO's Tec Forum; Investors "Excited" About Prospects

Thu, 13 Nov 2008 06:15:00 -0500

It turns out that Stephen Norris did attend SCO's Tec Forum after all, at least according to SCO's latest SCO Partner News newsletter someone sent me. He expressed that SCO's strengths are its customers and its products. That's why the investors he says he represents are "so excited about the business prospects of working with SCO" and in particular because of SCO's commitment to backward compatibility of "all its products -- going all the way back to Xenix". Hmm.

Bilski - What It Means, Part 4 - The Microsoft Brief - Updated

Wed, 12 Nov 2008 06:48:00 -0500

I said I'd write next about Microsoft in my series of articles trying to explain what In Re Bilski means. I also said it would be the last in the series, but it's not. I'm sorry it took me so long, but I decided as I was constructing the article that without the full text of the amicus brief Microsoft filed in the Bilski case, it was almost impossible to be comprehensible. So I took the time to do the text version of the PDF. You'll also want to have the decision [PDF] itself handy. The text version we did of the Bilski decision is here.

The Microsoft brief was filed along with Dell and Symantec, and it's an attempt to get the court to deny the Bilski claims while at the same time trying to keep the court from going all the way and deciding software should not be patentable. There are some logic bumps along the way, as you will see. The court diverged from Microsoft's argument about three-quarters of the way through, and it didn't directly address software patents, except in one footnote, mainly because Bilski wasn't about software. So it left unaddressed Microsoft's chief argument about why software should patentable, namely because of what it does to a computer. There will be future cases, though, that certainly will be on this point, so it seems a good time to point out everything we can think of to help the court understand what's wrong with the Microsoft-Dell-Symantec position. I'll start, but jump in any time. You'll see more than I will, since so many of you are programmers.

I'm smiling already just thinking about it. Anyway, what I thought would be just one article is now two, because of the length. Here, I'll just address what I understand Microsoft's arguments to be and what a "particular machine" is to Microsoft. I'll save the part about what it may mean for Microsoft's threats against Linux for the next article.

Bilski - What It Means, Part 3 - The Mayer Dissent and Some Intangibility Questions - Updated 2Xs

Sun, 09 Nov 2008 21:26:00 -0500

Continuing our series on the In Re Bilski ruling [PDF], here is Judge Mayer's dissenting opinion as text, the one that points out how utterly damaging all business methods patents are. Also, a reader sent me this link to what I agree is the best overview of the ruling that we've seen yet, by the law firm of Ladas & Parry. It sticks to what the ruling says, as opposed to predictions of what it might mean. Here's how they paraphrase Judge Mayer's dissent:

The decision is too complicated. State Street should have been over-ruled and patents confined to technological inventions.

Clear and simple. And if I might be allowed, Amen. But that might be a little too simplified. Here's a more substantive taste of Mayer's dissenting opinion, in his own words:

The en banc order in this case asked: "Whether it is appropriate to reconsider State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999), in this case and, if so, whether those cases should be overruled in any respect?" I would answer that question with an emphatic "yes." The patent system is intended to protect and promote advances in science and technology, not ideas about how to structure commercial transactions. Claim 1 of the application of Bernard L. Bilski and Rand A. Warsaw ("Bilski") is not eligible for patent protection because it is directed to a method of conducting business. Affording patent protection to business methods lacks constitutional and statutory support, serves to hinder rather than promote innovation and usurps that which rightfully belongs in the public domain. State Street and AT&T should be overruled....
There is nothing in the early patent statutes to indicate that Congress intended business methods to constitute patentable subject matter....In passing the 1952 Act, Congress re-enacted statutory language that had long existed, thus signaling its intent to carry forward the body of case law that had developed under prior versions of the statute. Because there is nothing in the language of the 1952 Act, or its legislative history, to indicate that Congress intended to modify the rule against patenting business methods, we must presume that no change in the rule was intended. See, e.g., Astoria Fed. Sav. & Loan Ass'n v. Solimino ... ("[W]here a common-law principle is well established . . . the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident."

Also clear and simple, but as you see, it isn't just State Street that Judge Mayer feels should be overruled but also AT&T, which I highly recommend you read, but not if you have high blood pressure and are a programmer. It was about methods patents, but also about whether or not one could patent a mathematical algorithm. Here's a quote for you:

Because 101 includes processes as a category of patentable subject matter, the judicially-defined proscription against patenting of a "mathematical algorithm," to the extent such a proscription still exists, is narrowly limited to mathematical algorithms in the abstract.

I know. It takes us into OMG territory. It's what Bilski was trying to address. The AT&T decision built on and depended on State Street, and Judge Mayer is saying that State Street came out of the blue, contradicting prior common law and the patent statutes, and it really needs to be clearly killed off and buried, along with any of its children, because it was a mistake, one that launched what he calls "a legal tsunami" of regrettable patents on what ought to be the unpatentable.

SCO's Statement on Final Judgment and the Melaugh-Gonzalez Emails

Sat, 08 Nov 2008 03:17:54 -0500

SCO has filed a Statement Regarding Entry of Final Judgment [PDF], responding to Novell's Response to SCO's Notice of Voluntary Dismissal , which asked the court to confirm the amount of the constructive trust the parties have agreed to and to make SCO pay it now, which in turn followed SCO's Notice of Voluntary Dismissal.

It's breathtaking to me. SCO actually argues, quoting selectively from the trial order's wording, that while one clause of the 2003 Sun agreement was not authorized, the rest of the agreement was, and in fact in the judge's "nuanced" trial order, that's what he meant, that SCO was authorized to enter into the agreement except for that one itsy bitsy part. Just excise that one clause, and what do you get? An *authorized* agreement. What? Don't hyperventilate. SCO does this.

Here's the part of the July 16, 2008 trial order SCO *doesn't* quote from:

The Court concludes that Sun's 2003 Agreement License, therefore, "concerns" a buy-out, and SCO was required to follow the additional restrictions imposed by Amendment No. 2 on transactions that concern buy-outs. SCO did not comply with these terms. The Court thus concludes and declares that SCO was without authority to enter into the 2003 Sun Agreement under Amendment 2, Section B, of the APA.

Do you see any wiggle room there? Any lack of clarity on the judge's part? If so, send your resume to Boies Schiller right away. They might have use for you.

Joke. Joke.

SCO Bankruptcy Filings -- Is SCO Resurrecting the Name Caldera?

Thu, 06 Nov 2008 17:10:00 -0500

We need to take a quick break from the Bilski series because there are a number of filings in the SCO bankruptcy, including a notation in one filing that seems to indicate that SCO is considering resurrecting the name Caldera International. Take a look at this, Exhibit D [PDF], attached to Dorsey & Whitney's 9th monthly application for compensation. On page 9, we see two notations:

08/11/08 - D. Marx - 0.15 40.50 - Discuss foreign qualification issues of the Company's subsidiary, Caldera, with C. Peters
08/11/08 - C. Peters - 0.15 25.50 - E-mail correspondence with J. Bingham regarding Delaware reincorporation of Caldera International, Inc.

What are they up to now? Are they thinking of returning to that name? As in, never mind? Or is there a plan for a new subsidiary?

Update: Page 4 is interesting too. A notation references "notification of change of directorship of ME Software" on 8/19/08. On the 21st, you see emails "regarding change of directors". Then on page 10, there are some notations regarding China, including one that reads "Review and revise termination of joint venture agreement."

Hearing November 20th -- I see there is going to be a hearing [PDF] on the SCO Omnibus Objections on November 20, 2008 at 9:30 AM, so if you are involved in that, you'll want to make arrangement to be represented there, by phone, by attorney, or in person, as per the instructions in the document.

Bilski: What It Means, Part 2 -- Listening to the Dissenting Opinions - Updated

Wed, 05 Nov 2008 15:10:00 -0500

Let's start here, the official bios of the justices that serve on the U.S. Court of Appeals for the Federal Circuit, the court that just rendered the ruling in In Re Bilski [PDF]. It will help us to understand their point of view, and that will make us more effective in responding. You'll have to make an effort to look at things from a different angle, since most of us feel so strongly that software patents are a curse on development and innovation. But it's worth it to try, if only so as to formulate arguments that can be effective in trying to help them, and those who think as they do, to realize that there is something new in the patent world, a development model that depends not on closing others out but on collaboration and shared science.

Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS

Mon, 03 Nov 2008 16:08:49 -0500

I know you want me to explain what the recent Bilski decision [PDF] means, because you are writing to me. I've shown you some of the apoplectic reactions from the patent bar. But what does it mean to us, to FOSS?

First, in a simplified nutshell, here is what Bilski means to everyone: You can't get patents any more on a pure mental process. You can no longer patent a process that you can think through all in your mind. In other words, abstract ideas are not patentable. There has to be either a particular machine or a transformation in the process. So pure "ideas" or "mental processes" are over. That means most business methods patents are no longer valid because they are outside the parameters of what is eligible for patenting. In simple terms, it means this:

The End for the stupidest of the stupid patents.

Yay! It means that the tide is turning. There could still be an appeal of Bilski, and even without one, there are ways to chip away at this decision's new standard for patentability, to try to get over the new turnstile, so to speak, and strategies on how to do that have begun already. I've spent the days since the decision issued researching for you, so I can explain Bilski to you. There is too much material for just one article. So, I'll break it up into parts. My purpose is to make sure you understand fully, so you can be helpful with your ideas and so you can explain this issue to others, so they understand what is involved for FOSS. If there are parts you don't understand, ask. If I don't know the answer, I can ask someone.

The most important reaction to Bilski, to me, is Red Hat's, which you can now read in full here. It's the most important to us, because what you and I want to know is: what about FOSS? What does Bilski mean to us? So, in this series of articles on the Bilski ruling, let's start there.

Novell Responds to SCO's Notice of Voluntary Dismissal/Final Judgment Language - as text

Sat, 01 Nov 2008 16:18:00 -0400

Novell has filed its Response to SCO's Notice of Voluntary Dismissal. It's ascerbic and funny as can be. It shows the court each and every tricky bit it thinks SCO might just be angling for.

I saw in the email exchange between the SCO and Novell attorneys that were attached to the David Melaugh Declaration that SCO has stepped on Novell's last nerve with its trickiness. And here we see the result. Novell points out each and every conceivable thing SCO might be trying for, leaving nothing for SCO to try later.

Tennessee's Withdrawal of Claims - Updated

Sat, 01 Nov 2008 06:17:00 -0400

There are more bankruptcy filings in the SCO bankruptcy, including two that sent me on a deep search for what they mean. Tennessee's Department of Revenue has filed two Withdrawals of Claims, for claims 110 and 111. Why would Tennessee do that, I wondered? Are they giving up on getting paid? The amounts of the claims are a little over a thousand on one and a little over five thousand on the other. Had they decided it wasn't worth fighting for? Or was there a plan to go after SCO in some other way?

After hours and hours of research, I confess I am not sure what it means, bankruptcy not being my field. But if someone put a gun to my head and told me to tell what I think after all the research or else, I'd say my best guess is that Tennessee realized that SCO doesn't owe them those sums after all.

I learned some interesting things about withdrawing claims, though, which I'll share with you.

The Bilski Decision Is In: Buh-Bye [Most] Business Methods Patents - As text and updated 6Xs

Thu, 30 Oct 2008 15:27:00 -0400

Pop some champagne! The Appeals Court decision [PDF] is in on Bilski: I'm still reading it, but on first quick reading, one thing is clear: it's a win! Eligible patent matter just got smaller. Here's a snip from the opening:

We affirm the decision of the Board because we conclude that Applicants' claims are not directed to patent-eligible subject matter, and in doing so, we clarify the standards applicable in determining whether a claimed method constitutes a statutory "process" under � 101.

This was an appeal against a rejection of a business methods patent, and the appeals court has now agreed with the rejection. At issue was whether an abstract idea could be eligible for patent protection. The court says no.

Buh-bye business methods patents! [Most of them: see update.]

Novell Makes a Move -- Motion for Constructive Trust and Payment Now - Updated 2Xs, as text

Wed, 29 Oct 2008 17:14:00 -0400

Here we go. Novell has filed a motion asking the bankruptcy court to confirm the constructive trust amount and order SCO to pay it now:

586 - Filed & Entered: 10/29/2008
Motion to Approve (B)
Docket Text: Motion to Approve Order Confirming Constructive Trust and Directing the Debtors to Pay Funds to Novell Filed by Novell, Inc.. Hearing scheduled for 11/20/2008 at 09:30 AM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. Objections due by 11/13/2008. (Attachments: # (1) Notice # (2) Exhibit A# (3) Exhibit B# (4) Proposed Form of Order) (Poppiti, Jr., Robert)

The parties have agreed on the amount to put in the constructive trust, Novell reminds the court, $625,486.90, "based on an uncontested reading of trust tracing law and SCO's relevant daily balance information" regarding the Sun SVRX royalties that the court concluded were Novell's from that deal, $2,547,817. What they don't agree on is when SCO should pay it.

Ubersoft's Help Desk ... A reorganization plan for SCO

Tue, 28 Oct 2008 22:37:12 -0400

All right. We can't be serious about SCO all the time. Time for a laugh. And this is funny. Thanks to Christopher B. Wright's using a Creative Commons license for his cartoons, we can add this one to our permanent collection. Enjoy.

P.S. I also love Ubersoft's phrase at the top of the page:

UBERSOFT. We Patent, So You Can't.

That captures the spirit of the patent system well.

I enjoyed Help Desk's take on a reorganization plan for SCO. Someone file this in court, please, the second SCO's exclusivity time period to come up with a plan runs out. Kidding.

SCO's MORs for September in the Bankruptcy - The Subsidiaries - Updated

Tue, 28 Oct 2008 13:49:00 -0400

SCO Group and SCO Operations have filed the monthly operating reports for September. Also Pachulski Stang filed its 11th monthly bill, which covers July, meaning there are more bills to come.

I find page 15 of SCO Operations' filing [PDF] fascinating. Am I going nuts or is SCO sending money to the foreign subsidiaries? Take a look.

Google Settles Authors Guild Litigation - Updated 2Xs

Tue, 28 Oct 2008 13:31:00 -0400

Google has reached a settlement in the litigation over its Google Books feature. The settlement is complex, but on a quick look, it seems a bit like radio paying into a copyright clearinghouse to be able to play music. It has agreed to sell books and then pay 70% of revenues to authors via a "Books Rights Registry" being established; and Google also will pay the Registry 70% of net advertising revenues.

It's a good arrangement for Google and for the authors. For fair use, I'd call it a loss. Nevertheless, Google Books is still awesome. It hasn't been officially approved yet by the court, but it's reasonable to expect it will be. The parties will each call it a win, of course. Google:

Today we're delighted to announce that we've settled that lawsuit and will be working closely with these industry partners to bring even more of the world's books online. Together we'll accomplish far more than any of us could have individually, to the enduring benefit of authors, publishers, researchers and readers alike.

You can read the settlement in full. Here's the proposed Order [PDF], which one can opt out of, as it explains, or object to if you are in the settlement class. Here's the money part [PDF], who gets what. Google can continue Book Search, but books commercially available are in a "No Display" category. In addition, any author can opt out totally. We will have access to more books online now, according to Google's explanation.

NetApp's Point of View on the Sun Litigation - An Update

Sun, 26 Oct 2008 21:07:00 -0400

Dave Hitz, CEO at NetApp, has posted his view on the latest happenings in the NetApp v. Sun patent litigation. Sun's General Counsel, Mike Dillon, recently described the outcome of the Markman hearing, which Sun was pleased with, and he also announced that the USPTO has agreed to reexaminations of several of NetApp's patents, including agreeing to a reexamination of the '292 patent [Order]. Hitz says NetApp has more patents even if these are invalidated, and he asks some questions which I'd like to answer. He questions the motives behind Sun's request to the court for a stay in the proceedings while the validity of the patents are decided. He seems to view that as Sun dragging its feet, and he asks if Sun's request indicates a lack of confidence in its position. I'll bet your answers will be a lot like mine, particularly if you've had your SCO inoculations.

When Spoliation Gets Found Out

Sun, 26 Oct 2008 12:17:00 -0400

You have to read this. Do you remember when SCO tried to accuse IBM of spoliation, albeit unsuccessfully? If so, you will enjoy reading this ruling, where a New York judge actually agreed with a plaintiff that the defendant had deliberately destroyed computer evidence. It's a case from the Eastern District of New York. That would be either Brooklyn or Central Islip. It's hard to be sure without checking outside the four corners of the order, because quick checks on the companies mentioned in the order turn up nothing at all for most of the names and the only info on the one I could find anything on shows that the company has changed name servers 23 times in five years and is now on servers in Las Vegas, if you know what I mean, despite being apparently in Ramapo. So that would indicate Central Islip.

When I read it, the first thing that entered my mind was that it's a warning not to use IE or Windows. But really it's more a warning about how hard it is to spoliate evidence in the digital age and get away with it. You should never destroy evidence anyway, whether someone will catch you or not, but I couldn't help but wonder how these folks, assuming the judge is correct, thought they could get away with it. You'll note the alibi in what the judge writes.

If you are a lawyer, you most especially need to read this, particularly if you or your clients use Microsoft Windows. It's a clear cautionary warning about the lack of privacy in proprietary software. There may be a way to cover your tracks in Windows, but self help, even clever self help, isn't likely to work. How, I asked myself, could these folks not know that IE keeps a record of sites visited? Actually, if I was their lawyer, I'd probably have argued that it indicated the alibi was truthful, that they did know and were obviously not trying to cover up any misdeeds. Well. Maybe.

It's a ruling in a situation that involved a motion for sanctions, then, one which was granted based on evidence the judge ruled indicated deliberate efforts to avoid discovery. The sanctions granted were a default judgment and having to pay some of the other sides' legal fees and costs. No punitive damages were granted. You'll also see that discovery went on for five years, just in case you thought such things only happen to SCO. And notice how some judges are becoming more clueful when it comes to computers. Personally, I find that encouraging. But what I want you to focus on is how the party got caught. To me, anyway, it's funny. It's a geek thing, I guess.

SCO Plans... er... SCO Hopes for a Future

Fri, 24 Oct 2008 21:37:00 -0400

Well, this is perfect. SCO's plans for the future surfaced at TecForum 2008 in a presentation they've put on their website, so we can all have a laugh together. Here's the plan. It's all so vague, maybe it'd be more accurate to call it SCO's hopes. They -- yes, they, since Stephen Norris appears on page 39, under the header: Opportunity -- spin off the company's assets, leaving SCO Group the Litigator as an empty shell, or nearly empty, to pursue the litigation. With Darl at the helm, maybe, if I recall their most recent word on that subject. That way, if they lose all the lawsuits -- how could *that* ever happen? -- the titular winners of the litigation, IBM, for example, will be unable to get any assets at all from SCO.

Sounds fair to them. They get to sue you for everything you own if they win, but you get nada if you win. Tails SCO wins, heads you lose.

Creditors Being Objected to by SCO Begin to Respond

Wed, 22 Oct 2008 22:07:00 -0400

Some of the creditors that SCO tried to toss out of the lifeboat with its First (Non-Substantive) Omnibus Objection to Claims are starting to show up, evidently mad as can be, to support their claims. And Pachulski Stang has filed a quarterly bill.

However, I worry that the responses to SCO's objection may not be sufficient to achieve the intended goal. IANAL, though, so ask one. What I think stockholders are supposed to do is file an amended proof of interest, providing whatever was missing from the initial filing, whether attaching a copy of the stock certificate or whatever else was the original problem. The reasons could vary, so there is no blanket instruction. If you care about your interest and/or claim, depending on why you are on the list, then, you really need to ask a lawyer to help you. This is all about getting the details right.

I see one of the filings asserts that one of the lawyers at Pachulski Stang is representing him, but I fail to see how that can happen, since Pachulski Stang represents SCO. Just saying. Seriously. Ask a lawyer to help you get this right. You can pay a lawyer for a visit, where he or she tells you how to amend a claim, and then do it yourself, if your funds are limited. You're allowed to appear pro se, including at the hearing by phone even, but you still need to know what you are doing. SCO's lawyers are not your lawyers. They are paid to help SCO, not you. That's how I'd see it, anyway. SCO's motion tells you exactly what you are supposed to do, as far as what information must be included. Follow the directions to the letter, if you don't want to be tossed. I'll repeat the instructions at the end.

Straightening Out Some Silly Stuff Being Written About Apple v. Psystar

Tue, 21 Oct 2008 23:35:00 -0400

All right. I wanted to goof off yesterday, but the amount of silly stories about the Apple v. Psystar case drove me to do some real digging and then write an article to try to tell you the real story.

Here is the bottom line. Neither party is running and hiding from an open court. Neither party has given up or given in or decided to settle. It was the judge that sent the parties to ADR. Alternate Dispute Resolution, or ADR, is a process that the US District Court for the Northern District of California pushes in civil cases. They recommend it, but it doesn't block the litigation from going forward. It's also not binding on the parties. And it's not necessarily secret if an agreement is reached. Which I doubt. I will show you the details on how it works.

Here's the latest, by the way: Psystar had just filed a Memorandum in Opposition to Apple's Motion to Dismiss Psystar's counterclaims. The hearing on that will be on November 6. So. Onward.

SCO Files Motion to Dismiss Unresolved Claims with Prejudice (SCO v. Novell) - Updated

Mon, 20 Oct 2008 20:30:00 -0400

Finally, it's here:

561 - Filed & Entered: 10/20/2008
Notice of Voluntary Dismissal
Docket Text: NOTICE of Voluntary Dismissal of Its Unresolved Stayed Claims With Prejudice filed by Counter Defendant SCO Group (Attachments: # (1) Text of Proposed Order) (Normand, Edward)
562 - Filed & Entered: 10/20/2008
Reply Memorandum/Reply to Response to Motion
Docket Text: REPLY to Response to Motion re [554] MOTION for Entry of Judgment and in support of [561] NOTICE of Voluntary Dismissal of Its Unresolved Stayed Claims With Prejudice filed by Counter Defendant SCO Group. (Attachments: # (1) Text of Proposed Order Proposed Final Judgment)(Normand, Edward)

Whoa. Is SCO throwing in the towel on these claims?

Update: I knew there had to be a trick. If you read the Proposed Order, it's chock-o-block full of materials you don't find in the reply memorandum, and it looks to me like SCO is trying to dismiss with prejudice not only its own claims, but Novell's too. Huh? I have all the documents as text for you. See what you think when you read them.

Oh. I just noticed something else. They ask the court to rubber stamp their thought that execution of the court's orders in August of 2007 and this July should be stayed until the automatic stay is lifted by the bankruptcy court in Delaware! But ... sputter... choke...pass out with laughter... it was already lifted regarding this Utah business. Man, oh, man. They don't want to have to pay Novell. They'd rather spend their last dimes on an appeal, I guess. But the claims in arbitration are still stayed, so I don't get what they think they are doing. They never quit, the Boies Boyz.

SCO's Tec Forum in Full Sway. Two Press Releases Today.

Mon, 20 Oct 2008 14:45:25 -0400

Well, it's time for SCO's Tec Forum, which is what SCO is calling SCOforum this year, and lest the company's press releases get lost to paid services someday and disappear behind their drawbridge, and in harmony with our goal to provide historians with the entire picture, here are a couple of press releases that went out today, one about an upgrade to SCOoffice Server and the other about SCO Mobile Server SDK availability. In case you want to replace Microsoft Exchange with SCO's product or want to help them develop Me Inc., now you have a way.

Some of you will recall that Jeff Hunsaker said this would be perhaps one of the most significant SCOforums in history, and the earlier press release used a quotation from Stephen Norris in which Norris used the royal "we" regarding SCO, the company:

"It is important for SCO customers to understand that we are committed to provide them with world-class products and services," said Steve Norris, Chairman of Stephen Norris Capital Partners. "SCO Tec Forum is an important opportunity for my team to get to know SCO's customers and partners better. We have been impressed with the loyalty and commitment we have seen from SCO's customers and partners during our due diligence, and we will reciprocate," said Norris.

So one can't help but wonder if there will be any news on that front. Anybody there from Stephen Norris Capital Partners? I'm sure you share my curiosity about any results from on the Middle East money-hunting safaris Darl told the bankruptcy court about last month. What? You doubt? The judge believed him. What's wrong with you? My stars, what a bunch of cynics!

Want to Laugh? Another Tall Tale About Where Linux Came From.

Sun, 19 Oct 2008 23:19:37 -0400

This is so funny. Yet another "history" of Linux.

I'm deep into writing an article on the Apple-Psystar litigation, to rebut some of the absolute nonsense I see being written about it, but I have to take a brief detour to share something with you, so you can laugh too. I put in News Picks a couple of days ago the farewell letter of ex-hedge fund manager, Andrew Lahde, who is one of the few who predicted the current Wall Street meltdown, and one of the things he suggested was that great minds get together and come up with a new "system of government that truly represents the common man's interest....This forum could be similar to the one used to create the operating system, Linux, which competes with Microsoft's near monopoly."

This seems to have seriously twisted someone's neurons in a bunch, and here's part of Dennis Byron's response on Seeking Alpha:

Linux was created by IBM, HP (HPQ) and other former IT systems monopolists that realized that Microsoft was taking their systems monopoly away from them. IBM, HP, Digital Equipment (now part of HP), etc. had banded together for this purpose in the early 1980s while Linus Torvalds, the nominal creator of Linux and who now works for one of the groups IBM, HP, etc. put together for its trust-like purposes, was still in short pants. Ten years later, the consortium chose a small piece of software code, "forked" by Linus from some other code while he was in college, to complement the still ongoing technical development effort by IBM, HP, etc. to come up with "one Unix." What is today called Linux is the result of that one-Unix effort.

Isn't that hilarious? To be fair, those Wall Street dudes are likely under a lot of stress nowadays. If he needs a job, maybe he should write a column with "Paul Murphy", who also comes up with his own histories on the birth of Linux. I see a match. Or he could write for ADTI, methinks. They tried to allege that Linus forked Minix, but it's a lie. Anyway, Linus already confessed. The father of Linux is the Tooth Fairy.

It is sooooooo hard for traditional businessfolks to comprehend that people would write software on purpose because they want to, without an economic goal, and without the help and direction of the Big Boys. But they did. It is more than hilarious to contemplate the mental picture of Richard Stallman being a secret enterprise operative. That's who started the ball rolling in the '80s, by the way, not IBM, not HP, not any corporate entity. See what happens when you don't call it GNU/Linux? It leads to serious confusion as to the birth of the software the world is adopting.

I also find it hilarious to imagine any corporate counsel inventing the General Public License, the GPL, which was deliberately designed to keep greedo corporations and even individuals from being able to ruin the community's work.

And it worked! Thank you, Mr. Stallman.

To this very day corporations struggle to see anything good in the GPL, and they try to step over and around it at every turn, like Queen Elizabeth coping with puddles threatening her delicate slippers. Yes. All of them struggle with it. Some eventually come through it, some finally adopt it, but they never, ever in a million years would have released one byte of code under the GPL if they could have avoided it. Nevah. Let me tell you what really happened.