FORTUNE: Legal Pad — Did SCO get Linux-mob justice? — At least one lawyer thinks so in this rather interesting and thoughtful piece. Worth reading. (Send your nasty notes to him, not me!)
Understandably, few people mourned SCO’s humiliating defeat. In a series of incendiary lawsuits and letter demands in 2003, SCO sought licenses from at least 1,500 companies that used or distributed Linux, claiming that, by doing so, they were either breaching UNIX-related contracts or infringing UNIX copyrights, both of which SCO claimed to own. The demands enraged not just the Linux developer community, but many Fortune 500 companies that had become big Linux users and champions…
The problem is not that Judge Kimball’s view of the facts is wrong; it might not be. His judgments about which testimony to believe and which not to believe are, in fact, plausible. So are the inferences he draws from that testimony about how he should interpret the monumentally gnarly, self-contradictory, and, in my humble opinion, ambiguous 1995 contract that lies at the heart of the case. If SCO had asked to have its case tried before a judge (a “bench trial”), and if judge Kimball had then held that trial — so he could see the witnesses testify in the flesh and make informed judgments about their live demeanor — his ruling would make perfect sense and I’d have no objection to it.
But SCO didn’t ask for a bench trial, and Judge Kimball never held one. SCO asked for a jury trial, and Judge Kimball was, therefore, only ruling on Novell’s pretrial motion for summary judgment. And as any second-semester law student knows, a judge can grant such a motion only when, as innumerable courts in every state and federal jurisdiction have repeatedly written, “the evidence, viewed in the light most favorable to the party opposing the motion [i.e., SCO, in this situation], shows there are no genuine issues of material fact.” (If that weren’t the rule, our Seventh Amendment right to a civil jury trial would be a hollow joke.) In ruling on such a motion, a judge cannot “act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences,” according to the well-worn case law. You will find these or equivalent boilerplate recitations of the applicable law pasted somewhere into damn near every summary judgment ruling you will ever come across, with one conspicuous exception: Judge Kimball’s August 10 ruling in the SCO case. (After the ruling, the only claims left in the case were of a nature that do not entitle a party to a jury, and on Friday, September 7, Kimball granted Novell’s request to hold a bench trial on those. But there’s no dispute that SCO would have been entitled to a jury on the claims that were tossed out.)
So… on legal technicalities, SCO wasn’t given what it had the right to?
Who cares.
#1 So… on legal technicalities, SCO wasn’t given what it had the right to?
You might think that, after reading just the linked article… but if you read all of the comments contributed to that article, you get the opposite impression.
My favorite comments were the ones regarding how the title of the article is inflammatory i.e. “Linux-mob” justice… but Linux-weenies are rarely mentioned in the article.
How does a Judge finding that the contract doesn’t include the required, specific language for transfer of copyright become a “Linux-mob” action?
It seems Judge Kimball overstepped his bounds.
“in choosing to believe that Bradford and Braham were more credible, closer to the action, remembered the situation better, or what have you, Judge Kimball drew plausible and defensible inferences — for a juror. But a judge isn’t allowed to do that in ruling on a summary judgment motion.”
The law is a conglomerate of technicalities, and judges are supposedly the expert arbiters of such.
Never underestimate the power and influence of freeloaders.
3. “How does a Judge finding that the contract doesn’t include the required, specific language for transfer of copyright become a “Linux-mob” action?”
I agree. The editorial presents no evidence that the judge was swayed by anyone, including the Linux community or any Fortune 500 companies. That is just a fatly veiled attack on the open source community.
And besides, the writer is an idiot. A jury does not interpret contracts, that’s a job for a judge.
#4 It seems Judge Kimball overstepped his bounds.
Have you read any of the comments at the linked site?
“No contract for copyrights, no copyrights. No copyrights, no trial by jury about copyrights.”
“Your theory of “let the jury decide” is precisely the reason why our judicial system is so costly and time consuming. We need more judges like Kimball who have the intellect and guts to rule on the express language of a written and negotiated contract, rather than to allow frivolous claims that “the contract does not mean what it says” or “I intended it to mean something else” to be dragged through a costly jury trial.”
“The contract ‘ambiguity’ he trumpets is no ambiguity at all. The agreement calls for the transfer of all right and title to the UNIX software, and it excludes all copyrights: stated like that, it is contradictory. However, the agreement does not state it like that. It calls for the ‘all right and title’ transfer, but then says that “notwithstanding” that provision, no copyrights are transferred. This eliminates any ambiguity, and makes it clear that the “no copyrights” provision is controlling.”
Interesting article. Considering all the sleazy tricks SCO has pulled out during the IBM trial that Kimball also presides on, from the much overstated initial press claims. Trying to change the entire scope of the trial post discovery. Constantly escalating any order made by Judge Wells they didn’t like to Kimball. Trying to introduce new evidence during surreplies. To ignoring orders to quantify evidence in trial. And that is just the tip of the iceberg.
In the Novell trial SCO produced over 1000 pages of new material at the last minute then complained when Novell produced responses to it, claiming their counter should be barred from trial. After 4 years of this type of shenanigans I can understand that Judge Kimball may lean to the anti-SCO side with his rulings. Not out of intentional spite, just reflex reaction. If he has overstepped his bounds though, the case should go to jury. Not that it will help SCO in my opinion.
If SCO feels wronged, they are free to appeal the ruling to GOD or somebody.
God…. err Don