A Utah Case Judge Kimball Presided Over - Lanham Act Claims & Discovery Abuse

By Anonymous

September 22 2004

These were both very interesting cases, and offer some insight into the way that
Judge Kimball's legal mind works, but it's hard for me to see their relevance to
SCO vs. IBM.

The one issue I do have slight concerns about is the way that the appeal court
found that Kimball dismissed certain claims against Proctor and Gamble, based on
the fact that saying their executives were slaves of Beelzebub didn't amount to
slandering their products. However, given that those complaints were made
against Amway, who don't actually seem to be responsible for their distributors
(who act as independent contractors) I can see why he might have wanted to
dismiss it.

What does puzzle me though, is why Brent Hatch actually mentioned this case? I
can't detect any significant parallels between this case and the issues in SCO
vs. IBM, so I can only assume that Hatch raised it in some sneaky attempt to
rattle the judge? The subtext seems to be "Remember Amway? You were
overturned on appeal in that one, and it will happen again here."

However, by saying that that case was "one of his favourites", Judge
Kimball may well have been saying "yes, but look how little difference it
made to my final disposition. Nada. Zip. Zilch. Now go bring me a legal
argument, if you can find one."

But perhaps I'm reading too much into this? Groklaw will do that to you...

11:36 AM EDT

By PJ

September 22 2004

heh heh

It's the SCO case that does it to you. I also puzzled over why SCO brought this

case up. I just now finally found the ruling he refers to, I think, so you can
take a look. It seems to me that they were just saying that Amway brought a
summary judgment motion too soon in the case; and the comparison is to
IBM, with SCO equating their position to the plaintiff in Amway, so that they
would be saying IBM is bringing the SJ motion too soon, before all the
evidence is in.

11:58 AM EDT

Good writeup

By Anonymous

September 22 2004

I have been dismayed at times by the shrill and intemperate language of Groklaw writeups. This one, however, makes its points gently and allows the facts to speak louder than the opinions.

I don't see that it fits the SCO v. IBM matter, but in any event, although the plaintiff squeaked through this motion, it eventually lost the case, so in recalling this case to Judge Kimball's attention, I hardly think SCO did itself a favor by identifying itself with the losing plaintiff.

That's tactful and restrained, which means I wouldn't be embarassed to send a link to a neutral party. Keep up the good work.

01:23 PM EDT

Good writeup - I agree

By Anonymous

September 22 2004

I agree. I was attracted to Groklaw for an explanation of facts in the SCO case,
and was somewhat put off by the level of irreverence that PJ occasionally
imparts to the BLOG. She has the right, of course, and I can read elsewhere. But
the relavent parts of Groklaw are too importmant to me to to miss.

02:17 PM EDT

Shrill?

By Nick

September 22 2004

Can you please find even one example, any time, in any article, through the history of Groklaw, where PJ was "shri ll" [ http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=shrill ]? I've been here from the beginning and I've seen only humor and sarcasm and occasional righteous indignation when personal commentary was included. But shrill? That smells vaguely sexist to me, attributing unwarranted emotion to a female writer.

This also happens to be a very common troll subject around here (Oh if only PJ would calm down and provide facts as in the early days). I'll give you the benefit of the doubt and say you were being serious, albeit anonymously, but I call foul on the use of the word "shrill." I believe you are being unfair to PJ.

02:48 PM EDT

Shrill?

By Turin

September 22 2004

It isn't a troll topic, it's a very valid concern if you want the site to be
taken seriously. Sounding like a zealot results in being marginalized. That is
the way things work in this world.

Pretending the zealotry hasn't happened might make you feel better but doesn't
change the real perceptions of others.

04:24 PM EDT

Shrill?

By Nick

You must be joking. Groklaw is taken very seriously, so seriously IBM cited it
in one of their court briefs. PJ writes articles for various mainstream sites
now, Groklaw is routinely mentioned in good ways by mainstream writers. The
only ones who don't are those who are pushing SCO in some way. That's why this
has become such a popular troll topic. Groklaw is taken TOO seriously by the
mainsteam, and some people want to get PJ to stop her effective approach.

September 22 2004

04:44 PM EDT

Good writeup

By PJ

September 22 2004

Thank you for wishing to defend me. I appreciate it very much.

But as Groklaw grows more and more popular, I am thinking of morphing a little bit, and I appreciate the comment this person made. I have had to morph once before, when Groklaw first went beyond a geek-only audience.

In this article, I was actually consciously striving to do what the commenter says he saw, even deleting a couple of paragraphs that I thought were screamingly funny, painful as it was to do so, because now that SCO looks to be on the ropes, it's somehow not... I don't know. I felt uncomfortable. I really care about being a decent person. I've tried never to attack anyone personally, always, but now that they're down, I feel that our community's ethics do come into play. If the only way to win is to act like the opposition, I'd rather not win. If lawyers fall asleep in the court room, for example, I don't write funny but mean articles about it, because maybe he's sick. Maybe he was up all night with a child. Who knows? I don't want to mock fellow humans that way, though I certainly record that it happened, since it is part of the history, and then I move on. That's the line. I don't allow mean- spirited personal attacks on anyone in comments either, when I see them, and try always to keep a focus on the strategy, the company.

I have this sense of humor that not everyone understands. Actually, some people don't even have a sense of humor. That's just a sad fact of life, and sometimes folks who can be funny have to face it that not everyone gets it. So I'm seriously meditating on exactly what is the right voice now in our new circumstances, now that Groklaw is so huge.

In the beginning, it was urgent to let the world know that there *was* another side to the story, and we accomplished that, and the irony and the fun was definitely part of what helped. I notice it didn't hinder Groklaw at all to be funny. I think it helped, because some of this stuff is mighty dry.

Then, when it became clear there was no evidence being brought forward, I wanted everyone to understand what I saw, that there was no evidence that mattered being presented, despite the media hype. I feel a deep respect for the legal process. I did feel a moral outrage that Linux was being unjustly attacked in the media, but no proof was showing up in the courts. In the beginning, we didn't know if there might be a problem. Maybe there was some problem code? Maybe IBM did breach a contract? Who knew for sure? Once SCO didn't show any proof, even in discovery, that picture clarified, and I felt deeply, deeply disturbed that anyone would bring an action without any apparent evidence of some kind. That changed my voice. I still feel that way. Even if they have some evidence and just aren't showing it, that elicits moral outrage too, by the way. I think such a course would be disrespectful of the court. Anyway, we got that message about no evidence across successfully too.

Groklaw keeps growing. SCO has pretty much conceded victory to Groklaw as far as the antiFUD battle is concerned. I am sure they know no one will be leaving Groklaw to read legal documents on their site instead. Now, it's a matter of acting responsibly with the credibility we've earned. I'm going to do my best to do that, and I hope all of you will do the same in your comments.

To those of you who love my sense of humor, I am positive it can't be turned off altogether. It's just so much a part of me. But finding that perfect line is the challenge, no doubt about it, so the irony-impaired aren't confused or turned off. I wasn't ever planning on being PJ, you know, when I started Groklaw. It's been a real surprise to me that Groklaw is such a success. So I've been learning on the job. But thanks to all of you, Groklaw is on the map. If I need to adjust to new circumstances to present an appealing atmosphere to new arrivals, who may not be so tech-oriented or who may be CEOs or mainstream media folks, I am willing to do that. I am interested in winning, first, last and always, and I don't mind a bit making any necessary adjustments to be more effective. Since we are doing this together, I thought I'd let you know what I am thinking.

11:36 PM EDT

Shrill?

By PJ

September 23 2004

Yes, that is part of it. When I see something first, sometimes people think I am "over the top" when I am just perceptive. Sun folks especially take umbrage at what I have written about Sun, but, as you say, they appear to be fulfilling my every word. I wrote what I did to warn everyone of what I was seeing. Not everyone wanted to be told. But it's my job, as I see it, to write what is true, to the best of my ability, whether people like it or not.

The same thing happened the first time I wrote about LKP. Man, did I get attacked, with folks telling me I knew nothing about tech, blah blah, I was embarrassing myself, I should stick to whatever else I wanted to write about. But I was correct, as it turned out, that this was an area that should be looked at. At this point, I've learned to trust my instincts. I do listen to what readers say, but I also have learned that when the outcry is the loudest, I'm likely to be right on the money. Anyway, there is no way to do Groklaw without emotion behind it. It's too much hard work.

12:00 AM EDT

Good writeup - I agree

By PJ

September 23 2004

Here's the problem. Some of you like it one way and the others like it another way. Perhaps everyone should just take what they like and let Groklaw be itself too. You be yourselves and I will be myself. We can disagree without being disagreeable.

But keep your eyes on the ball. If you have enough time to try to critique Groklaw, why aren't you helping with the real work going on here? That is a serious question. The goal of Groklaw isn't to become the perfect blog. We are doing research, trying to defend Linux from what we believe are false charges. This isn't a discussion board, where we all get together to talk about life. Contribute to the work. That is the purpose of a member account, and everyone needs to quit arguing about how many angels fit on the head of a pin. Get busy instead.

I have to actually write this stuff every day, which means it has to be my voice, not yours, and there is a limit to how much time I can devote to things like this discussion. Try doing what I do and see what happens. It just isn't possible to please everyone, and it's pointless to go that far trying that you lose your creative voice. That's what you will learn if you try to do what I am doing. So, get back to work, please. Any of you with nothing to do, email me and I will send you a document to transcribe and proof. Or do some reseach and let us know what you find.

12:28 AM EDT

The sad state of journalism

By Nick

September 23 2004

Yes, that is precisely what the pro-SCO folks would want, to neuter PJ's voice by making her just like all the other journalists made irrelevant by their refusal to embrace advocacy. Today's journalists writes "facts" by asking one side what they think, then asking the other side what they think, and then turning in the piece without comment. So both sides spin things just the way they want until it is thoroughly untrue. Thus the article becomes a collection of thoroughly untrue statements. In other words, irrelevant. Politicians love the fact that they have managed to neuter journalism. They can now lie with impunity. SCO would love to be able to do the same.

No thanks. Groklaw is what it is because of its advocacy. It is what journalism should be, if they only had backbone.

10:41 AM EDT