Here we have SCO's Memorandum in Opposition to IBM's Motion to Strike, in which SCO makes the extraordinary argument that Sandeep Gupta, John Harrop, and Chris Sontag, while they could be experts, are instead testifying as lay persons. So Mr. Gupta, who has testified that code in Unix and Linux is similar, is just giving the opinion of a layman. And on the other side, we have Randall Davis of MIT, who has testified that it is his expert opinion that there is no similarity.
Is SCO out of its mind? Not trying? Trying to lose elegantly? I have been debating it every which way, and my current hypothesis is that the only thing they fight hard for is delay. I think, therefore, that they don't mind losing, as long as they can preserve their opportunity to go after end users. For that, a loss on some technicality will do. If, say, they ask for the moon (all AIX since the world began and for good measure the right to strip search IBM's software management system), and they are turned down, they could tell the media that there really is code in there that is infringing, but unfortunately the court turned down the only way they had to prove it against IBM. But it's in there. It's just that the courts....well, remember OJ, right? He's still walking around, as that legal scholar Darl McBride pointed out.
Could that be the strategy? I don't know. All I know is, this isn't normal behavior. So you can judge for yourself, here is a section of the memo, on why IBM's motion to strike the declarations of Sontag and Gupta and most of Harrop should be denied:
"Motion to Strike should be denied because:
- The Declarations are based on the declarants' personal knowledge, including their review of portions of the UNIX and Linux source codes and other documents in this case;
- To the extent that the declarants' testimony can be construed as opinion, it is admissable lay opinion not based on scientific, technical, or other specialized information.. . .
- In any event, each of the three declarants could qualify as an expert witness."
If they were trying to win, wouldn't they qualify their witnesses as experts, if they could, the way they did with Broderick? It's just so odd. They are hoping to defeat a motion with non-expert testimony that there is similarity of code.
They go on to carefully say that Gupta isn't testifying that there are any copyright violations. So, they've publicly leveled the charge, but there will be no one to testify to prove it? They say people end up looking like their dogs and husbands and wives look like each other after a long married life. Do you suppose lawyers end up like their clients?