nsomos
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Posts: 140
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Authored by nsomos on Oct 30, 2017 21:20:27 GMT
Mixed feelings. If IBM dropped their misappropriation claim, then the whole thing would be over. That might be nice. But SCOG really did do wrong and BSF should never have agreed to handle anything and everything with just payment up front. If IBM continues to press the misappropriation claim, then BSF will have to defend it. And it would be kind of nice to see someone on the wrong side of this suffer just a little. Even if it is only BSF. And it would be nice to have SCOG lose on every single thing.
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MSS2
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Authored by MSS2 on Oct 30, 2017 22:11:11 GMT
nsomos, as I read it, the misappropriation claim is SCO's, not IBM's.
Feel free to correct me if I'm wrong...
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Authored by bspurlin on Oct 31, 2017 14:51:17 GMT
It seems that at least two compilers may have been available for Monterey - AIX 5L PRPQ (May 4, 2001) before it was withdrawn. The 10/30/2017 order contains the following on p. 10 "This release lacked what is known as a compiler, which in this case refers to a software program that translates programming code into a language readable by the computer processor. Without a compiler, an operating system cannot be executed by the processing hardware, ..." which is, of course, technically wrong. The operating system in question (AIX 5L for Itanium PRPQ, May 4, 2001) could have been executed just fine by the processing (Itanium) hardware. If the release lacked a compiler it meant that customers would not have been able to make their programs run, not that the operating system itself would not have run. However, looking at e. g. public.dhe.ibm.com/aix/itanium/developer/compiler.shtml , it appears that an Itanium compiler was available at least by July 9, 2001 (go up one directory level on the ftp site to see the dates.) Further, www.redbooks.ibm.com/pubs/pdfs/redbooks/sg246034.pdf (AIX 5L Porting Guide, July 2001) contains several sections relating to the use of GCC, the Gnu C Compiler, on Monterey - AIX 5L for Itanium. Conclusion: IBM was making an effort to have Monterey - AIX 5L PRPQ usable by customers by providing compilers as late as July, 2001.
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Authored by tiger99 on Nov 1, 2017 0:42:25 GMT
Am I missing something from a long time ago? It seems that SCO were alleging that IBM deliberately planned to start up and then kill off Monterey and the Itanic just so that they could grab SVR4 source code. But the Itanic failed because it was very late, and most importantly, had no backwards compatibility with X86, whereas the AMD64 came along in a timely manner and was backwards compatible. So what actually happened was that the Itanic failed in the marketplace and IBM just dropped support for a failed product, surely just a normal business decision, neither pre-planned nor with malice aforethought?
Not that it matters now, because judgement on that issue was not reversed.
If what remains is only about SVR4 code in AIX, like other recent cases (I recall that Oracle vs Google was along those lines) the outcome would seem to relate to the amount of source involved. If my memory is correct, that attracted trivial damages, leaving Oracle heavily out of pocket due to legal costs. But this one could go either way, possibly even with the massive win that Darl predicted, because the rotten corpse might in theory be awarded a large amount per copy of AIX.
At least Linux is completely in the clear, and to most of us it doesn't matter how corporations, whether large and successful, or defunct, waste their shareholder's revenue in the courts. It is no longer having the slightest effect on our freedom as individuals, except possibly those of us with an IBM mainframe at home. I doubt that there are many such people!
But as it is costing BSF money, the longer it drags on, the better...
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MSS2
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Authored by MSS2 on Nov 1, 2017 19:11:47 GMT
Procedural question: Let's suppose SCO wants to appeal the decision that they can't amend their complaint, and/or the decision that they lose the interference part of their case. They can appeal that en banc. Do they have to do that first, or does the case first go back to District Court for the part that's left?
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Authored by sk43999 on Nov 2, 2017 21:23:24 GMT
MSS2,
My guess is that any appeal for en banc review has to be done within a certain time limit. In the meantime, the part that is left goes back to Utah. Presumably the two actions would proceed in parallel. No reason not to. The chances of an en banc review happening are zero, so presumably SCO will not even try.
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swmech
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Posts: 152
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Authored by swmech on Nov 14, 2017 6:56:37 GMT
Well, that was reasonably quick. New 70-page filing hot off Pacer, PDF available from my dropbox. IBM is petitioning for a panel or en banc re-hearing, based on four factors: - SCO’s Unfair Competition Claim Is Indisputably Preempted If It Is
Equivalent to a Claim under Federal Copyright Law - Courts Have Repeatedly Held that New York Claims of Unfair
Competition Based on Misappropriation Are Preempted by Federal Copyright Law - An Additional Element of Scienter or Bad Faith, Without More,
Cannot Defeat Preemption by Federal Law - The Cases Cited by SCO Are Inapposite
Those are just the section headings, I've not waded through the document yet (it's too late in the evening, and it'd likely be a good insomnia cure...). The actual petition is only 16 pages, and the vast majority of the remainder is "Exhibit A," the latest by judges Kelly, Ebel, and Bacharach. I did, however, find the second certification page amusing (maybe just because it's late), which starts with "I certify that this brief’s typeface and type style comply with Fed. R. App. P. 35(a)(5), because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New Roman font." At this hour I guess I'm easily amused.
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swmech
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Authored by swmech on Nov 14, 2017 19:53:13 GMT
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MSS2
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Authored by MSS2 on Nov 14, 2017 20:41:12 GMT
I presume SCO is also going to appeal the part they lost...
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swmech
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Posts: 152
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Authored by swmech on Nov 18, 2017 18:40:00 GMT
New filing, just a one-page directive to SCO to respond by 12/1. Entire text: "This matter is before the court on Appellee’s Petition for Panel or En Banc Rehearing. Appellant shall file a response to the petition on or before December 1, 2017."
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Authored by sk43999 on Nov 18, 2017 22:58:43 GMT
I presume SCO is also going to appeal the part they lost... Too late. You have 14 days from the time of the judgement to file an appeal. The clock ran out Nov 13. SCO's only option now is to go to the Supremos, and there is nothing to appeal that would be of interest to them.
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nsomos
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Posts: 140
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Authored by nsomos on Nov 19, 2017 0:08:52 GMT
sk43999 says "Too late." Unfortunately if some courts choose not to follow their own rules ... what are you going to do about it .... sue them? But hopefully IBM can point out the tardiness and have a good case that SCOG have used up more judicial good will than likely exists in the universe, and should be stopped.
We need a legal stake through their heart to keep this zombie of a case from going on and on and on and on and ...
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MSS2
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Authored by MSS2 on Nov 20, 2017 17:10:07 GMT
Then, any bets that SCO, in their response that's due 12/1, tries to add in a cross appeal or some such?
I don't know if that's even a thing, but I bet they try to make it one...
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Authored by wayneborean on Nov 22, 2017 20:26:16 GMT
Then, any bets that SCO, in their response that's due 12/1, tries to add in a cross appeal or some such? I don't know if that's even a thing, but I bet they try to make it one... So do I. The stuff SCO and their lawyers have tried to pull have been incredibly amusing. Especially when the judges call them on it.
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Authored by tiger99 on Nov 23, 2017 23:17:08 GMT
The sad thing is that it is a retired judge, Cahn, that is now trying to pull these stunts. Effectively he takes the place of the rotting corpse. See where his name appears on the documents! He has the ability to end this at any time, but thus far all he has done, as bankrupcy trustee, is spend all of SCO's remaining assets on a team of lawyers who achieved precisely nothing. The legal system is corrupt on a massive scale if it appoints people like him to achieve results like this.
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