BayStar: SCO needs new management (ZDNet) [LWN.net]

BayStar: SCO needs new management (ZDNet)

Posted Apr 22, 2004 16:14 UTC (Thu) by ccchips (guest, #3222) [Link]

The United States of America hasn't turned out anything like I was taught when I was a kid....

...except by my father, who was manic-depressive. I wonder why?

I predict that by 2010, half the people in this country will be on antidepressants, and the other half will be in some kind of PMA program.

This is how it looks to me, from the point of view of a worker. Our medical system is working hard to extend our lives, even up to 100 years' expectancy, so we can have the opportunity to:

Be sued at least once
Be accosted physically at least once
See at least one constitutional amendment raped
See at least one election stolen from us
Watch our standard of living decline
Remember maybe 20 or 30 species of animal or plant that doesn't exist anymore
Observe at least one case of genocide, on behalf of some dork businessman.

So, people get together to make something they can share with everyone, and in which everyone can participate if they like, so some idiot businessman can whine because there aren't enough *lawsuits?*

Almost makes me think all those computer viruses, worms, and SPAM messages are poetic justice. Kind of a payback for American apathy.

Me, I'll just sit here and wait for 1998 to come around again....

BayStar: SCO needs new management (ZDNet)

Posted Apr 22, 2004 16:33 UTC (Thu) by allesfresser (subscriber, #216) [Link]

Whoa, man... calm down. I understand your frustration and pain, but let's not get apocalyptic.

Maybe this should be a wakeup call to ask ourselves "how did we get into this situation?" "How did we create a country where greed is a virtue and fostering community spirit is a crime?" And more importantly, "is there anything we can do about it?"

I'm not providing any answers... just asking the questions.

BayStar: SCO needs new management (ZDNet)

Posted Apr 22, 2004 18:17 UTC (Thu) by pflugstad (subscriber, #224) [Link]

Loser Pays will fix a LOT of the problems with the US legal system.

Loser pays is not a solution

Posted Apr 22, 2004 19:49 UTC (Thu) by sphealey (guest, #1028) [Link]

Um, yeah. Until you are the little guy, being unfairly crushed by lawsuits from an entity with much deeper pockets. Say, the HAL Computer Company suing Finus for infringement of copyright.

sPh

Loser pays is not a solution

Posted Apr 22, 2004 23:03 UTC (Thu) by farnz (guest, #17727) [Link]

If you're being unfairly crushed, you're going to start winning cases. If not, then as far as the system goes, you're being fairly crushed.

Under the current US system, an entity with deep pockets can launch an expensive lawsuit your way, and get you into a position where regardless of merit, you're going to end up paying more to defend yourself than you can afford. Further, if you are able to seek legal recourse against an entity with deep pockets (say they infringed your copyright on a GPL'd program), it may be worth their while sitting it out, making the case as expensive for you as possible, in the knowledge that they can ensure you get a pyrrhic victory, where the compensation does not match your costs.

Under a loser pays system, launching frivolous lawsuits is dangerous; not only are you going to lose, but you'll have to pay your opponent's costs. Further, it's worth your while bringing the case to a reasonably rapid conclusion, since if you draw it out too much, the legal fees for your opponent become an issue for you.

Bear in mind that loser pays does not mean that the loser always pays. Instead, it means that the loser usually pays; if (for example) SCO wins against IBM on a technicality, the judge can still decide that SCO pays its own costs. However, SCO has to allow for the danger that it will be forced to pay both sets of costs if IBM wins conclusively.

Loser pays is not a solution

Posted Apr 23, 2004 12:34 UTC (Fri) by sphealey (guest, #1028) [Link]

> If you're being unfairly crushed, you're going to start
> winning cases. If not, then as far as the system goes,
> you're being fairly crushed.

No, you're not. Look at the SCO vs. IBM case. SCO has hired a local law firm of typical quality and a nationwide firm generally considered to be of good quality. IBM has hired the best law firm on the planet. IBM is crushing SCO into dust by the strength and depth of its legal work alone (I personally think IBM has the facts, law, and justice on its side, but that is irrelevent).

Under loser pays you would either be representing yourself, or you would be paying your uncle the divorce attorney $20/hour to represent you in a copyright case (and even at $20 the bill would add up rapidly). You would not have a chance in the world of winning.

I am open to a good proposal for tort reform, but loser pays isn't it.

sPh

Loser pays is not a solution

Posted Apr 23, 2004 15:04 UTC (Fri) by farnz (guest, #17727) [Link]

You miss one very important thing; under the current US system, if IBM were to throw their legal might against me personally, I would have absolutely no incentive to fight. It'd be too expensive, and I'd probably end up losing all my money even if I win.

If the system is loser pays, however, and IBM throw their might against me unfairly, I'm in a position to borrow money (possibly at extortionate rates if that's all I can get) to fund the legal defence I need, since I know that when I win, IBM will have to pay the costs I've incurred, which includes the cost of borrowing the money.

Further, since a decent lawyer knows that they'll get paid for taking on a winning case regardless of whether a client can afford it, it becomes easier for me to get better lawyers; they are more likely to work for a minimal fee during the case, and just build up a huge invoice for when costs come round.

In fact, I'd argue that you've got loser pays and pay your own costs the wrong way around; assuming I'm poor and my opponent is extremely rich, under loser pays, although I can't afford to fight a weak case, I can afford to spend whatever it takes to win a strong case. Under pay your own costs, I can't afford a decent lawyer, so I fold even though I should be able to win. The result (based on watching how it works over here in the UK) is that people don't bring stupid or poorly planned cases (like SCO vs IBM), because the risk is too high. On the other hand, when companies try to use litigation to prevent public debate, it's worth my while fighting on, since not only am I likely to win, but I will ensure that said company is penalised for their attempt to silence me.

Loser pays is not a solution

Posted Apr 24, 2004 22:15 UTC (Sat) by pflugstad (subscriber, #224) [Link]

farnz said it pretty well. If you're sued by a big guy, and you have a case, then you can easily find good lawyers to represent you - they know they'll get paid.

Under the US current system, unless you're rich, good luck finding someone to represent you, as no lawyer will touch the case as even if they win, you don't have the money to pay them, so you're *really* screwed. And before you say something like counter-suing for costs, IANAL, but I understand that to be very hard to do and very rare.

And what loser pays does do is get rid of the nuisance lawsuits that plague our legal system. Right now, if you get suid, the first question is, what's the cost of playing it out vs settling. REGARDLESS of who's right or the merits of the case. That's idiotic and it drives up costs for EVERYONE as the costs (whether it's settled or litigated) as people find out they can sue everone and make money on the deal.

Loser pays makes lawyers *look* at the merits of the case rather than just filing against everyone in sight.

The only people who like the current US system are the US lawyers. Everyone else hates it.

Loser pays is not a solution

Posted Apr 23, 2004 6:33 UTC (Fri) by ekj (guest, #1524) [Link]

Countries with loser pays typically have checks and balances in place to prevent a rich company from crushing a resource-strapped individual.

For example, if I get sued by Microsoft here in Norway, In the lowest court I'd have to put up for my own costs (but I'd get that money back from Microsoft if they loose), but this lowest instance is quick and cheap. Typical costs is one standard court-fee. (around $100 currently)

If I win, and Microsoft accepts this and pay, the case is over. If I loose, and don't appeal, the case is also over.

In the typical "we'll crush him with our money" scenario though, what happens is that I win, but the opponent appeals, hoping that I won't have the resources to follow trough all the way. This, however, doesn't work, because in this case the state would put up for my costs to have the case carried trough. (they'll get this money back once the case is ultimately won)

I suspect that even without this system, in a looser-pay scenario, it'd be profitable for private ventures to finance appeals. It'd be a bussiness opportunity to finance (and lead) cases on behalf of resource-strapped individuals/small bussinesses who won in the first instance, but had their case appealed by the opponent.

Theories are one thing, practice another. It is a *fact* that there are lots of countries in the world where "loser-pays". It's also a *fact* that these countries do *NOT* typically show more "small guy gets crushed" cases than do the USA. Infact I would argue that the american system tends to ensure that the guy with the most resources win much more often than any other system I know of. Look at what happened to O.J or to Microsoft, and what is going to happen to Jackson.

BayStar: SCO needs new management (ZDNet)

Posted Apr 22, 2004 18:37 UTC (Thu) by ccchips (guest, #3222) [Link]

While I won't claim to not be annoyed and depressed over some of these things, I was actually kinda leading up to the link at the end. I've been away from them for awhile, but thei do help out with some of the melancholy that can set in when watching the greedy stick it to the kind.

BayStar: SCO needs new management (ZDNet)

Posted Apr 22, 2004 20:08 UTC (Thu) by ccchips (guest, #3222) [Link]

Sorry....wrong place in thread.

Once again, These people are great for people like me who tend to get depressed and annoyed about such people as the SCO leadership and their "friends," who seem to have completely lost their ability to sympathize with those of us who actually work for a living.

Baystar admits SCO's products are worthless

Posted Apr 22, 2004 17:16 UTC (Thu) by dwheeler (guest, #1216) [Link]

This is not good news for SCO. This is an admission by Baystar that SCO's product line is not valuable. I think there are at least two reasons SCO products are now worthless:

SCO's products are too obsolete to sell. Since there's only bit a pitiful trickle of investment in those products for over a decade, that's not surprising. Indeed, I think most objective observers would have to agree with Baystar: SCO's current product line is essentially worthless. Solaris, Windows, and typical GNU/Linux distributions have simply moved light-years ahead of SCO's line, and SCO simply won't be able to catch up. That happens in capitalism: if your competitors improve their products, and you don't, then you'll probably go out of business.
SCO is an extremely risky vendor. SCO is showing that they're primarily interested in suing their customers; who would want to enter a relationship with someone like that?!? Remember the old complaint that "with open source vendors, who do you sue?" The response is now, "with at least this closed-source vendor, the vendor gets to sue you!" As a counter-example, Debian/SPI is very unlikely to sue you.

But it's likely that Baystar's proposed remedy will be just as bad. In general, businesses have to provide useful products to stay in business, or they fold. There is a long list of businesses which have folded because they tried to litigate their way to success. Even "winning" can be pyrhhic, since the legal battle is costly and the other side can often work around it. Those are generalities, but the specifics are even worse for SCO. SCO claims it "owns" Unix, but that's contested (by Novell). SCO claims it "owns" any extension to Unix, but the legal language and clarifications from AT&T and the BSD precedent make this claim very implausible. Heck, SCO can't even say it owns the trademark - someone else owns that! That's on top of recent analyses showing the likelihood of copyright infringement to be remote. And even if SCO 'won' the case -- which appears extremely unlikely to me -- the kernel developers could just drop and rewrite some code, since this isn't a patent dispute. Annoying, but not fundamentally harmful, and frankly I think there's increasingly NO evidence that this case will ever be found in SCO's favor.

There are cases where companies have won big intellectual property battles. But those generally happened where ownership was fairly clear. That is certainly not the case here.