Tuesday, June 10, 2003
Here Come the Judge
I promised to share what I have found out about the judge assigned to try this case in federal court in Utah. His name is the Hon. Dale A. Kimball, and it's one of those happy times when the Honorable title does seem to fit.
Judges often let attorneys know their likes and dislikes, to minimize friction and atty learning curves. Here is Judge Kimball's bio and the page where he explains his judicial philosophy.
Here are some cases he has heard, and what I see is that he isn't intimidated by large corporations or inclined to favor any particular side, but goes entirely on the law and on what appears to be a deep sense of fairness too:
1. In this case, he ruled in favor of a small company that made red yeast/Cholestin, which the FDA wanted categorized as a "dietary supplement" so it could regulate it, but which the judge said was just a food. This was the first test case of the 1994 Dietary Supplement and Health Education Act. You can read about it here and here and here.
2. He ruled against Proctor & Gamble, when it sued Amway in one of its "Satan-worshipper" rumour lawsuits. More here .
3. Here is a case where he refused to ban recreational vehicles on wilderness land owned by the governement. You may or may not like that, but if you read his reasons, you note first that he doesn't care who is powerful and who isn't and he goes very strictly by what the law actually says, not what he might personally like or dislike. That's what judges are supposed to do.
4. Here is a fraud case he handled.
5. Want to see a software-related case? Here is one he handled, Altiris Inc v. Symantec Corporation, where the Appeals Court overruled part of his decision, but if you read the reasoning, you'll see it wasn't because he didn't have a tech clue.
6. He also sat by designation on ACLU v Johnson, 194 F.3d 1149 , US Ct of Appeals, 10th Circuit, a unanimous decision re child filtering.
7. He handled the review of Zeran v. AOL.
8. Worried he might put Mormons ahead of others because he is one and his last name is Kimball, to boot? Then take a look at Universal Life Church v. Utah. Another interesting case involving Indian religion is here.
9. Here is a trademark case he ruled on.
10. And here is a copyright case he handled, in which he said the plaintiff waited too long to raise his objection. "Had Jacobsen [plaintiff] voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," he wrote in his decision. Because he waited too long, the material had lost its copyright. A news story in the Deseret News explains:
"In his ruling, Kimball said Jacobsen did not 'express any disapproval' of the series until 1999, after the third volume had been published. 'Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books,' Kimball wrote. 'For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes.'
The plaintiff had an opportunity to read the book before publication, but he never finished it. The reasoning in this ruling would appear to be encouraging in the SCO fact pattern, wouldn't you say? SCO, then Caldera, obviously had access to Linux code for years, as well as UNIX code, all the while they were selling Linux products. For that matter anyone can look at Linux source code. But they had access to both literally for years.
11. Complexity is obviously no problem. Here is a Forest Service timber use case he reviewed that will make your eyes hurt just to read it, and he had to write it. Even the caption of the case is complicated.
You can tell a lot about a judge by reading his decisions. In the above list, that would be the Altiris v. Symantec case, ACLU v. Johnson, Zeran v. Diamond Broadcasting, Universal Life Church v. Utah, the trademark case, and the Forest Ranger case. About the only thing I noticed that made me pause was that he appears to use Word to write his decisions so I don't know how much he knows about UNIX/Linux, but I assume he can quickly master whatever he doesn't start out with. He is apparently in the Utah inner circle, for sure.
So what kind of guy is he, outside the courtroom? I found this article he wrote on a conference he attended as a panelist, in which LDS and Jewish leaders met to discuss differences and similarities of outlook in the two religions' views on law, "LDS and Judicial Perspectives on Stories from Jewish Tradition". It's quite interesting, because it clearly shows he has a sense of humour and a clear and logical mind. A Jewish panelist would tell famous stories about Jewish law, and then two LDS panelists would give their reactions. Examples:
"A penniless orphan had been taken in by a prominent rabbi and his wife and given lodging and wages in exchange for services as a maid. Unbeknownst to the rabbi, the young woman had broken a precious household candlestick and the rabbi's wife was taking her before the Beit Din (the local ecclesiastical court), seeking monetary damages. On the morning of the hearing, the rabbi observed that his wife was putting on her formal clothes and inquired why. She explained, whereupon the rabbi began putting on his formal attire and said he would accompany her to the Beit Din. 'Good!' exclaimed his wife, noticeably pleased with her husband's apparent support. 'You don't understand', explained the rabbi, 'I go to testify on the maid's behalf.' 'Why?' asked his stunned spouse. 'Is not my claim just according to the law?' 'It is,' replied the rabbi. 'However, the Torah commands us to protect the widow and the orphan -I go to fulfill God's commandment.'
After the other panelist's blah blah blah on protecting widows and orphans, Kimball's pragmatic reaction, in part, was, "We have here a good rabbi who needs more communication in his marriage."
Another reaction to a different story shows how his brain analyzes problems:
"A landowner employed a group of itinerant day laborers to move barrels of wine. The laborers carelessly handled one of the barrels and it fell and broke, spilling all of its contents. The landowner refused to pay them their wages and seized their knapsacks containing all of their worldly possessions. He then went before the Sanhedrin (the high Jewish court) seeking a ruling that his actions were legal in light of the fact that his damages exceeded the value of both their wages and possessions. The judges agreed with the owner's position as a matter of law. However, they reminded him that the God of Justice is also the God of Mercy. They then asked the owner which aspect of God he wished to encounter when it became his time to be judged. Acknowledging their point, the owner accepted the court's ruling that the laborers were entitled to return of their possessions and to their full wages."
The other panelist said:
"This reminds me of the parable found at Matthew 18:23-34: The Lord forgives his servant 10,000 talents, but the servant refuses to forgive his fellow servant 100 pence. The Lord asks the unforgiving servant, in verse 33, 'Shouldest not thou also have had compassion on thy fellow servant, even as I had pity on thee?'"
Kimball asked: "Were all of the workers negligent or just one? Did one or more act recklessly or intentionally? Should that make a difference? Would you sue a homeless person you hired to work for you when that person broke something valuable? The owner's actions here just seem wrong. What were the working conditions?"
This next story elicited what I found the most telling response:
"A businessman planned to file a lawsuit and had a choice of two jurisdictions. He sought advice from his rabbi as to which jurisdiction would be better. He explained that the judge in one town was renowned for his legal brilliance and copious scholarship. By contrast, the other judge was known for his humility. The businessman suggested the former should be preferred but his rabbi disagreed. The rabbi explained that the brilliant judge would be tempted to use the case as a means to demonstrate his own brilliance whereas the humble judge would be concerned only with discovering and applying what the law truly was."
The other panelist voted for humility being the most, most important quality a judge could have, but Kimball said: "Forum shopping is all right if it's legal. Humility is a marvelous attribute. A cause-oriented judge is a dangerous judge and one cause may be a judge's own brilliance. Is the humble judge also intelligent? Or is he humble and stupid? A stupid judge is dangerous also. If the matter is complex you may want to take your chances with the brilliant unhumble judge."
I don't know about you, but I 'd take my chances with this judge any day.
Laugh. It's Funny.
Well, well, what have we here?: "A source close to SCO, who spoke on condition of anonymity, told eWEEK that parts of the Linux kernel code were copied into the Unix System V source tree by former or current SCO employees."
This, the article says, would be a violation of the GPL, if SCO incorporated GPL Linux kernel source code into SCO's (then Caldera) "Linux Kernel Personality", without giving the changes back or without displaying a copyright notice giving credit for the Linux code. It also might explain mysterious identical code. But the real issue with the GPL isn't credit; it's access to the source. You can use Linux code all you want, but if you do, and then you release you product that has that GPL code in it in a public release, it is now all GPL. This is the heh heh notorious "viral" effect Microsoft likes to warn about. I'd say that if this story is true, it's a big problem for SCO's lawsuit.
The anonymous source assisted with the project to bring the two kernels closer and says SCO "basically reimplemented the Linux kernel with functions available in the Unix kernel to build what is now know as the Linux Kernel Personality (LKP) in SCO Unix."
Of course, Slashdot is all over this. One cute post from Bagels, in response to SCO reportedly saying they "never used any of the Linux kernel code" : "I suppose that means they never tested any of their code? What kind of contribution to Linux could they possibly make coding like that? :)"
UserFriendly's SCO cartoon is also funny.
Linus Torvalds has asked to see SCO's code, starting back in December according to SCO, but he can't sign the NDA, obviously, and still do his work because of the particular terms of SCO's NDA, so he asked to be allowed to see it without signing it. SCO refused. I don't see how that can help them once they get to court. While it's conceivable that there is infringing code, and if there is Linus would be the first to admit it and fix it, he can't fix it unless he can see it. So that means the ball is now firmly in SCO's court. However, Linus is quoted in the article as saying, "The code will have to come out eventually. I can wait. I don't have to like it, of course." He means he doesn't have to like being made to wait.
SCO Gets Warning from Linux Companies in Poland
Two Linux companies in Poland have issued notices to SCO, saying SCO should stop claiming there is illegal code in the Linux kernel unless it shows some proof and should stop tellling companies not to use Linux. Cyber Service and IT Zone CEOs gave SCO three days to comply or the companies will bring suit against SCO under Polish law.
If you'd like to be able to guage Laura Didio's neutrality in all this, take a look at her interview on NewsFactor on how haaaaard it is to switch to Linux from Windows, like the "101 labors of Hercules" she says. There's more. Take a look.
Fujitsu Siemens says about SCO's lawsuit: "We don't think it's going anywhere."
And the New York Times says that lawyers who have seen the SCO-Novell purchase agreement and the additional amendment say "they present a somewhat murky picture of the breadth of SCO's rights". The actual wording of the amendment is rather unclear, despite SCO's crowing. See what you make of it:
"With respect to Schedule 1.1(b) of the Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to read:
"All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise it rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks." Clearly they got some copyrights, but exactly which didn't they get? (as in "except for"? ... and what does it mean "required to exercise its rights"?)
If you wish to turn in a software pirate, you can do it on SCO's web site now and to quote them: "You don't have to leave your name."
An astute observer noticed a message on Yahoo!'s SCOX Message Board, checked it out and then posted on Sourceforge that one of the officers of SCO, Senior VP, Technology, just cashed out:
"Monday June 09, 2003 - [ 01:32 PM GMT ]
Topic - Business
Read article at - messages.yahoo.com
"An Anonymous Reader writes "Opinder Bawa, Senior Vice President, Engineering and Global Services at The SCO Group, sold all his stock last week. On Tuesday, 2003-06-03, Bawa sold 15000 shares at $6 per share . That's all the stock that he directly owned. On Wednesday, 2003-06-04, Bawa exercised options for 7916 shares at $1.20 per share and sold all 7916 shares at $6.60 per share . That's the remainder of 22,916 shares and options shown for Mr. Bawa in the 2003 proxy statement ."
I'm sure we can all think of any number of perfectly valid reasons why a man who is the highest tech guy in SCO, which presumably would include looking at code, might sell every last bit of stock he owns in the company he works for.
In other news, SCO's home page, both here and in Germany, now displays the "Relax. Worry Free Software" motto. That makes it official to me, anyway, that this is their PR campaign. First, create legal worries about using your competitor's software, then offer yours as a "worry-free" option. Eww. Would execs actually fall for that? Personally, I don't see how software from a company that some, many, say is about to go out of business can possibly be described as worry-free. Unfortunately there are no laws against PR. That's a joke. There probably are. If not, this should qualify for there-oughtta-be-a-law.
I did some research on the judge this case has been assigned to. After I get some paid work done, I'll post it. I have to say, though, that on balance it'd be hard to find a judge I'd feel better about hearing this or any other case. He appears to be a courageous guy, a brainiac with a heart. Even a sense of humour. But mostly he's a judge who thinks it's important for judges not to have an agenda of their own and to judge according to the law. He isn't thrown by elaborate detail, and he's sat on patent and trademark cases before, even a software patent case.