SCO Tells Court in 2 Sur-Surreplies to Let It Use All Its Theories(Groklaw)

Of course SCO can use all its theories. The question is whether it can use information it failed to disclosed by the court ordered deadline. And SCO makes a nice stab by suggesting that following the court order would mean that even the expert reports had to be finished by the earlier date. Of course, this is false. The expert reports were due when they were due. It is just that they could not rely upon undisclosed information. And there is a big difference between those two.

Parties are required to disclose information for a reason. And that reason is so that it is fair to both sides. And, yes, SCO makes a point that since the IBM trial has been put off past the end of the Novell trial, there is plenty of time here.

Well, yes, but.

The real problem that SCO faces here is that the court does not like to have its orders ignored or disobeyed. And if there is any question about their applicability, the court rightly assumes that the party holding the question will address the court at the proper time. SCO failed to do that too. So frankly I do not think the court is going to just give SCO all kinds of time to do everything all over again.

The problem for IBM is that this is a true nuisance law suit. The only power that SCO has is directly related to making the litigation very expensive for IBM and the message is that distributing Linux will also be very expensive. There is no question that Microsoft would and will spend hundreds of millions if it can force a competitor to spend a like amount on lawyers.

For Microsoft, win or lose is a win. For SCO, they go down the toilet. At least unless someone comes up with a pile of cash. And that scenario is looking bleak.

So on and on we go about sandbagging IBM with the late evidence versus the need to always allow the real issues of the day to be litigated. And the truth is that many supporters of the Linux operating system would rather have Linux cleared than have it win by SCO's messing up in discovery, having Novell tell it to quit or even have SCO go belly up.

But, in the end all law suits finish up one way or another. And typically many of the legal issues raised turn out not to be the deciding factor. It is even fair to point out that almost all law suits eventually do settle.

However, IBM, Red Hat and Novell are not interested in a settlement with SCO of any kind. And SCO has nothing to offer in exchange for a settlement save for the ongoing litigation expense everyone must endure. And that is what makes it a nuisance law suit.

How will the case be decided?

Frankly I doubt the copyright issues will ever be decided. Not in the IBM case and probably not in the Red Hat case either. And, you have to remember that Red Hat is just waiting in the wings hoping to get on the stage.

SCO is running out of money. Novell is likely to get that constructive trust (if not a summary judgment) against SCO. SCO is going bankrupt. And it is very likely that Novell will also have its power to dictate to SCO what it can or can not do in regard to either contract issues with SVRX licensees or even copyright issues.

One interesting point was made by SCO in their sur-sur-reply memo. And that related to their claim that the owner of copyright as well as an exclusive licensee can assert copyright violations. That may be true. And I find it interesting because SCO has not suggested in any of the pleadings in either case (IBM or Novell) that is is merely the exclusive licensee of those copyrights. And to be honest I do not know exactly what that is suppose to mean. It may be that SCO might be able to assert some violations however I rather doubt that could be the case taking into account the terms of the APA. It would appear that Novell retained the trump card in regard to UNIX and it applies for all purposes including possible copyright violations.

The point in all of this for SCO and Microsoft is just to make it expensive for IBM, Red Hat, AutoZone?, Novell and DaimlerChysler?. Make it expensive for Linux distributors. And paint Linux with legal problems if it can.

Another interesting argument in the SCO memo was a claim that SCO has not been arguing about copyright violations all this while. Rather they tried to tell the court that SCO was all about contract violations and not copyright. Nice lie. And nice attempt to defraud the court. But, I guess when you scrape the bottom of the barrel all kinds of crud comes up.

If SCO was only complaining about contract issues and any contract related damages would be paid by IBM if they were due, there would have been no reason at all to send those threatening letters to some 1500 Linux users. Those letters addressed copyright violations. SCO simply could never sue third parties for any damages as a result of any possible breach of contract on the part of IBM. For one that damage would be paid by IBM during the suit (or settlement). And third parties are not liable for breach of contract. So those letters threatening Linux customers were all about possible copyright violations. Lying to the court now about SCO's allegations is just too cheap. And is very unlikely to be believed by the court.

But, then SCO is running out of crap to throw. And running out of reasons for throwing it too.

Did they really intend to sandbag IBM or were they just too stupid to realize they should have followed the court's orders? Changes are pretty good they just did not care. The purpose is to drive up the cost of the litigation for IBM. And there is no question that the cost of litigation keep increasing as SCO continues to argue again and again. SCO lawyers would want nothing better than to have the court lose its cool such that SCO lawyers can get to start all over again. They do not care to win. They only seek to cause very expensive litigation. That is what nuisance law suits are all about.

And, yes, there are plenty of lawyers who think that they can litigate any given case indefinitely if that is their objective. Certainly that would make SCO's attorney's client Microsoft happy, right? Microsoft wants nothing less than to claim publicly that there are legal problems with Linux. Idiots think degrading a competitors product is good business. And Microsoft customers are fools. So they should fall for that.

Are we ever going to get a legal decision on the possible copyright violations in Linux? Frankly, I doubt it. If bankruptcy does not flush SCO down the toilet, Novell's trump card will.

And you have to keep in mind that many law suits are not settled until after all motions for summary judgment have been decided. Until then neither party really knows what they have left. And I doubt SCO is going to have much left. SCO is likely to have nothing left. Oh, they can try to appeal here and there. Assuming bankruptcy does show up. But, it is more likely that SCO will be defending counterclaims against it and little else. And when that is the case a settlement will be reached. IBM, Red Hat and Novell will have no hope of recovery any damages and SCO will have no hope of any kind.