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IBM Addendum to Memorandum in Support of IBM's Motion to Compel Discovery
Tuesday, November 11 2003 @ 05:55 AM EST

Here is IBM's Addendum, which is attached to their Memorandum in Support of its Motion to Compel Discovery, in which IBM has drawn up a table showing the judge what they asked SCO for, what the response was, and how and in what way they believe the response was deficient. Thank you to Ross Combs for being willing to tackle such an intricate project, even being ready to type it and format it all by hand. And now to Bjorn Stenberg for tweaking.

If you compare IBM's work with SCO's, you'll see the difference. Here they have made a helpful table so the judge can see at a glance exactly why IBM is complaining about SCO's Supplemental Responses. And so can you.

The original has a certificate of service, but it seemed unnecessary to reproduce that. You can view it in the PDF here. Again, I have redacted addresses and contact information, which are available in the PDF version.

******************************


Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
Snell & Wilmer L.L.P.
[ street address ]
[ city, state, zip ]
Telephone: [ number ]
Facsimile: [ number ]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
Thomas G. Rafferty (admitted pro hac vice)
David R. Marriott (7572)
[ building ]
[ street address ]
[ city, state, zip ]
Telephone: [ number ]

Attorneys for Defendant/Counterclaim–Plaintiff
International Business Machines Corporation


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH


THE SCO GROUP,

Plaintiff/Counterclaim–Defendant,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim–Plaintiff.


ADDENDUM TO
DEFENDANT/COUNTERCLAIM
PLAINTIFF INTERNATIONAL BUSINESS
MACHINES CORPORATION’S REPLY
MEMORANDUM IN SUPPORT OF
MOTION TO COMPEL DISCOVERY

(ORAL ARGUMENT REQUESTED)


Civil No. 2:03cv0294

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells




Addendum

Summary of Deficiencies in SCO’s Supplemental Responses

No. Information Requested by IBM SCO’s Supplemental Response Deficiencies in SCO’s Supplemental Response
1 Interrogatory No. 1 seeks specific identification of all alleged trade secrets and confidential or proprietary information that SCO alleges IBM misappropriated or misused. This information is requested by product, file and line of code. SCO reiterates its references to “UNIX software design methods” and “technical UNIX categories” (Exh. A at 3.)

SCO lists 591 files, by source file heading, contained in unidentified releases of the Linux 2.4 and/or Linux 2.5 kernels. It states merely that they include or may include “information (including methods) that IBM was required to maintain as confidential or proprietary pursuant to contract with SCO and/or which constitute trade secrets misused by IBM”. (Id. at 3–6, 7– 19.)
SCO fails to identify a single Unix file or line of code.

SCO’s references to “design methods” and “technical Unix categories” are so vague as to be essentially meaningless. In fact, SCO does not identify any of the methods it purports to own; it merely describes the categories in which they supposedly fall.

SCO’s list of files is neither responsive nor identified with meaningful particularity, as SCO fails to identify the precise releases of the Linux kernel in which these files are found or the precise lines of code at which the alleged methods are found and SCO acknowledges that it had rights to only some of the code in these files.
2 For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 2 seeks further identification of: (a) all persons who have or had rights to the same; (b) the nature and sources of SCO’s rights in the same; and (c) efforts to maintain secrecy or confidentiality of the same. SCO states that IBM and Sequent and their respective employees, contractors, agents and some customers had rights to the information contained in the files SCO identifies. SCO further states that IBM and Sequent were required to maintain that information in confidence pursuant to various agreements. (See Exh. A at 20.) With respect to subpart (a), SCO specifically identifies only IBM and Sequent. It fails specifically to mention any others, including licensees of Unix System V software, persons to whom SCO gave rights by distributing the identified files as part of one of its Linux products, or persons to whom SCO has disclosed the files in connection with this litigation.

With respect to subpart (b), SCO makes no real attempt to identify the nature and sources of its rights. It fails to disclose whether, for example, SCO’s rights derive from contract, common law or statute (e.g., copyright) and how SCO acquired such rights (e.g., as an author or by acquisition).
3 For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 3 seeks the identity of all persons to whom the same was disclosed and the details of such disclosure. In particular, this interrogatory seeks: (a) the date of disclosure; (b) the terms of disclosure; (c) the documents relating to disclosure; (d) all places where the trade secret and/or confidential or proprietary information may be found or accessed. SCO states that it is impossible to identify all persons to whom the trade secrets and confidential or proprietary information were disclosed. (See Exh. A at 21.)

SCO references its supplemental response to Interrogatory No. 2 and states that employees of SCO and its predecessors have had access to the trade secrets and confidential or proprietary information, as have employees of IBM involved in Project Monterey. (See id. at 21– 22.)

SCO alleges over 140 persons affiliated with IBM “in which part of the confidential or proprietary and/or trade secrets was known or had been disclosed”. [sic] (Id. at 22–26.)
SCO declines specifically to identify anyone other than employees of IBM and Sequent. It makes general reference to employees of SCO and its predecessors and refers to its supplemental responses to Interrogatory No. 10, but it fails to specify responsive persons. SCO has failed to identify, for example: (1) all licensees of disclosed information; (2) the persons to whom it distributed its Linux products; and (3) the third parties to whom SCO has disclosed its supposed evidence in connection with this lawsuit.

SCO makes no real attempt to provide the information requested in the subparts to this interrogatory, including in particular the dates for any disclosure, the terms of disclosure, and documents relating to the disclosure. With respect to the places where the requested information may be found, SCO lists hundreds of Linux files in response to Interrogatory No. 1, but fails to identify precise releases of Linux or lines of code in the files identified. It makes no mention of Unix software licensees, web postings or publications in response to this interrogatory.
4 For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 4 seeks information regarding each instance in which plaintiff alleges that IBM misappropriated or misused the same. In particular, this interrogatory seeks (a) the date of the alleged misuse or misappropriation; (b) the persons involved; SCO states that IBM “misappropriated and misused the trade secrets and/or confidential and proprietary information of Plaintiff each time it made contributions to Linux of source code or methods based on, derived from or developed in UNIX System V, AIX and/or Dynix”. (See Exh. A at 27.)

SCO states that IBM “misappropriated and misused the trade secrets and/or confidential and proprietary information of Plaintiff through Project Monterey”. (Id.)
SCO does little more than reiterate the allegations in its Amended Complaint, without disclosing the specific factual basis of its allegations (assuming there is one).

SCO has not meaningfully provided any of the information requested in the subparts of this interrogatory, especially subparts (c) and (d). Subpart (c) seeks identification of the manner in which IBM allegedly misused or misappropriated SCO’s intellectual property. While SCO admits in its opposition brief that not all of the instances described in its presentation at the SCO Forum pertain to IBM, it refuses to disclose which ones, if any, do in response to this interrogatory.

Subpart (d) seeks identification of the places where the allegedly misappropriated/misused material can be found.
(c) the manner of misuse or misappropriation; and (d) the location of any method or code in any IBM product, Linux, open source or the public domain. As previously stated, SCO offers only an imprecise and incomplete response to this subpart in its answer to Interrogatory No. 1.
5 For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 5 seeks identification of (a) all agreements relating thereto, and (b) all copyrights and patents relating thereto, including but not limited to the owners, licensors, licensees, assignors or assignees thereof. SCO incorporates its supplemental responses to Interrogatory Nos. 2 and 3. (See Exh. A. at 28.)

With respect to agreements, SCO refers to all agreements between IBM and Sequent and SCO or its predecessors. (See id.)

With respect to copyrights, SCO states that those relating to UNIX System V and UnixWare will be produced in the ordinary course of a rolling production. SCO refers to copyrights held by IBM and/or Sequent in AIX, Dynix and other software products. (See id.)
With respect to subpart (a), SCO identifies only (in the vaguest of terms) agreements between IBM/Sequent and itself. IBM is entitled to identification of every other agreement relating to the trade secrets and proprietary or confidential information at issue.

With respect to subpart (b), SCO fails specifically to identify whether there are copyrights or patents relating to each item of information (disclosed in response to Interrogatory No. 1) and declines to provide the specific information requested as to any such copyright or patent. SCO’s reliance on its intent to offer a rolling production of unspecified documents is improper.
6 For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 6 seeks (a) the origin of the code or method, including where, when and by whom created; (b) all products in which the code or method is included or upon which it is based (in whole or in part). SCO states that “the origin of the code and/or method identified in response to Interrogatory No. 1 above is one of UNIX System V, UnixWare, AIX, Dynix or related code or code developed therein or modifications thereof”. (Exh. A at 29.) With respect to subpart (a), SCO’s reference to “Unix System V, UnixWare, AIX, Dynix or related code or code developed therein or modifications thereof” is inadequate. The Amended Complaint gives this much detail. SCO fails to identify, for each line of code or method at issue when, where and by whom the code or method was created.

With respect to subpart (b), SCO has provided no supplemental response. Again, SCO should be required to identify by product name, version and release number, all Unix or Linux products in which any line of code to which it asserts rights is included or upon which it is based (in whole or in part) and identify the file name and specific line(s) of code that allegedly comprise the code or method.
7 Interrogatory No. 7 seeks a description of each instance in which IBM allegedly engaged in unfair competition, including but not limited to: (a) the dates of such conduct, (b) the persons involved, and (c) the specific manner of unfair competition. SCO states that IBM engaged unfair competition by: (1) improperly competing with and influencing competition for UNIX software on Intel–based processors in connection with Project Monterey; (2) inducing or attempting to induce Hewlett–Packard and Intel from doing business with SCO; (3) using Software Products and modifications/derivatives thereof in a manner exceeding the scope of IBM’s licenses with SCO; and (4) entering into a conspiracy and combination in restraint of trade with others in the Linux development business. (Exh. A at 30–31.) SCO offers little more than vague generalizations about the acts of unfair competition it attributes to IBM, without the detail sought in the various subparts of the interrogatory. Few or none of those facts have been provided.

With respect to Project Monterey, SCO provides only conclusory allegations about the nature of the alleged unfair competition and none of the requested specifics.

With respect to the alleged improper use of software products in a manner exceeding the scope of licenses, SCO says nothing specific beyond its reference to unidentified “contributions of the modifications and derivative works to Linus Torvalds and/or others in the open source community”. (Exh. A at 30.)

SCO’s description of an alleged conspiracy/combination is likewise deficient. With whom specifically did IBM conspire and combine? On what terms? What evidence does SCO have of this? How did the supposed conspiracy affect competition? How did it injure SCO?
8 Interrogatory No. 8 seeks the identification of all agreements with which IBM allegedly interfered, including but not limited to: (a) the date of interference, (b) the persons involved in the interference, (c) the manner of interference, (d) the actions (if any) IBM encouraged licensees to take, (e) the actions, if any, such licensees took as a result of IBM’s inducement/ SCO alleges two types of interference by IBM: (1) inducing or attempting to induce breaches of agreements “by assisting and/or performing services in switch from UnixWare to Linux”; and (2) approaching certain of SCO’s partners to induce them to stop doing business with SCO. (See Exh. A at 32.) With respect to the first type of interference, SCO fails either to identify or to produce the agreements with which it alleges IBM interfered. Moreover, SCO provides little if any of the specific information sought in subparts (a) through (f).

With respect to the second type of interference, SCO again fails either to specify or to produce the agreements IBM purportedly attempted to induce SCO’s partners to breach. Likewise, much of the detail sought in subparts (a) through (f) is absent from SCO’s supplemental response.
encouragement, (f) the trade secret or proprietary information (if any) involved in the alleged interference.
9 Interrogatory No. 9 seeks identification of all agreements that IBM has allegedly breached, including but not limited to: (a) the date of breach, (b) the persons involved, and (c) the specific manner of breach. SCO has not provided any supplemental response to this interrogatory. For the reasons stated in IBM’s opening papers, SCO’s response to this request remains deficient. Simply put, it offers (1) no dates, (2) none of the persons involved, and (3) no specific facts relating to the alleged breaches. SCO does so despite the fact that it suggests that its breach of contract claims are the thrust of its case.


  


IBM Addendum to Memorandum in Support of IBM's Motion to Compel Discovery | 218 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IBM Addendum - To Be Edited
Authored by: Nathan Hand on Tuesday, November 11 2003 @ 04:55 AM EST

The table view for the motions and replies are fantastic. It really makes it easy to understand what's going on. It's like numerical data in a table. The data is there but can't easily be interpreted. Put it into a graph and *kazaam* the trends and meanings are obvious.

What's very clear to me now is exactly how crappy SCO's replies have been. IBM says "gimme this". SCO says "here's a completely useless non-answer". IBM says "you didn't answer the damn question". I didn't see this before, but the table makes it clear.

I'm guessing the judge will easily spot this even without the table. So my question is, will the judge get angry at SCO for being difficult? My understanding has always been that you don't play silly games with police and/or judges. They don't have a sense of humour.

Thanks again, PJ. The tables are really appreciated.

[ Reply to This | # ]

HTML critique
Authored by: Khym Chanur on Tuesday, November 11 2003 @ 06:00 AM EST
Each of the cells in the table have multiple line breaks (<br>) per
parahraph, making the paragraphs look ragged unless the document is veiwed full
screen. If these line breaks were left out, then the web browser can decide
where to wrap lines within the paragraph, depending upon how wide or narrow the
browser window is.

[ Reply to This | # ]

IBM Addendum to Memorandum in Support of IBM's 2nd Motion to Compel Discovery
Authored by: Tsu Dho Nimh on Tuesday, November 11 2003 @ 07:08 AM EST
What is TRULY frightening about this table is that if the positions were
reversed, IBM **could** assemble all of the information they are asking SCO to
produce.

"SCO does little more than reiterate the allegations in its Amended
Complaint, without disclosing the specific factual basis of its allegations
(assuming there is one)."
ROFL!!!!! And if there were fire-breathing dragons, the sales of asbestos
undies would skyrocket.

[ Reply to This | # ]

IBM Addendum to Memorandum in Support of IBM's 2nd Motion to Compel Discovery
Authored by: Anonymous on Tuesday, November 11 2003 @ 08:34 AM EST
SCO alleges two types of interference by IBM: (1) inducing or attempting to induce breaches of agreements “by assisting and/or performing services in switch from UnixWare to Linux”; and (2) approaching certain of SCO’s partners to induce them to stop doing business with SCO. (See Exh. A at 32.)

What? Taking business from another company is now illegal? IMHO, this is just normal business practice in the US economy. SCO complains, "They are stealing our business." Have we actually seen a contract/license/agreement that says IBM can't try to get business from SCO's partners?

[ Reply to This | # ]

I wonder if....
Authored by: Anonymous on Tuesday, November 11 2003 @ 08:52 AM EST
IBM is doing this not only for themselves (dot the I's cross the T's and make
the judge's life easier) but also for the public, places like this site, normal
people, to help better understand the case, this is supposed to go to a jury
trial right ;), but anyways great job to this aite and to IBM's legal team this
is just excelent!

[ Reply to This | # ]

IBM Addendum to Memorandum in Support of IBM's 2nd Motion to Compel Discovery
Authored by: Anonymous on Tuesday, November 11 2003 @ 09:07 AM EST
JP, thanks for this briljant site. Everymorning I start with Groklaw and a cup of coffee. I think that the most important remark of IBM is in 9b:
"..no specific facts relating to the alleged breaches. SCO does so despite the fact that it suggests that its breach of contract claims are the thrust of its case. "
So the case is over. Marc

[ Reply to This | # ]

Table Item #4
Authored by: Anonymous on Tuesday, November 11 2003 @ 09:23 AM EST
It appears to be unanswerable? At least, I don't see any way that an outside
company could identify the exact people and the exact date inside IBM that
misuse or misappropriation happened.

[ Reply to This | # ]

interrogatory no. 1
Authored by: Anonymous on Tuesday, November 11 2003 @ 09:41 AM EST
Does anyone have a clue why SCO has so far refused to explicitly identify the
disputed code per Interrogatory No. 1? Is this a common tactic in cases like
this? It makes almost no sense to withhold the strongest support for your own
case, and I'm curious why they would try to compel IBM to do the work for them.
The goal seems to be to force IBM to incriminate themselves, to force them to
dig their own grave. Does this ploy seem obvious to anyone else? How long will a
judge tolerate this type of BS, or is the legal process so twisted that this
tactic is considered legit?

[ Reply to This | # ]

IBM and Groklaw
Authored by: Anonymous on Tuesday, November 11 2003 @ 10:12 AM EST
Well... Looks like IBM is using the same format that
Groklaw used earlier to show concise matchings. Keep up
the excellent formatting ideas and IBM may have really
really spic-n-span type clean documents for the Judges.

[ Reply to This | # ]

rolling production?
Authored by: Anonymous on Tuesday, November 11 2003 @ 11:49 AM EST
Can anyone fill in non-lawyer on what "rolling production" is? How
does it work?

Thanks,

[ Reply to This | # ]

OT (More M$ FUD)
Authored by: hellerite on Tuesday, November 11 2003 @ 12:16 PM EST
"Microsoft's aim is to undermine critics and place a question mark over Linux's security by revealing that, on average, Windows poses less of a security risk. By turning attention away from its own software bugs while at the same time launching several security initiatives, it hopes to be able to tackle one of main worries business has with its proprietary operating system"

...http://www.infoworld.com/article/03/11/11/HNmsassault_1.ht ml Microsoft prepares security assault on Linux

[ Reply to This | # ]

SCO themselves admit answers incomplete
Authored by: Anonymous on Tuesday, November 11 2003 @ 12:18 PM EST
IANAL

At some length, the vagueness of SCO's answers has been discussed here. At some length, the lack of specifivity of SCO's answers has been discussed here (it's somewhere in one of these 591 files)

But there is another aspect: The incompleteness of SCO's answers - as acknowledged by SCO themselves!


It seems to me SCO has a problem in the plain language of their responses, as they themselves admit their answers are incomplete - but IBM clearly asked for complete answers!

A number of SCO's supplemental answers are non-exclusive, in that they use phrases such as "without limitation", or "not limited to" or "thus far"

IBM pointed this out regarding their original answers in their first memo on their first motion to compel discovery. IBM asks for and is entitled to a complete response.

Yet even after SCO had read IBM's first memo, in their supplemental answers (three weeks later), they are still being incomplete.

Some examples (emphasis added - I can't be bothered to go thru them all! - INTERROGATORY 7 is perhaps one of the most instructive):

INTERROGATORY NO. 7: (IBM)
Please describe, in detail, each instance in which plaintiff alleges that IBM engaged in unfair competition, including but not limited to: (a) the dates on which IBM allegedly engaged in any unfair competition; (b) all persons involved in the alleged unfair competition; and (c) the specific manner in which IBM is alleged to have engaged in unfair competition including but not limited to as alleged in ¶ 118 of the Complaint.

from SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7: (SCO)
In addition, IBM, through Karen Smith and others has induced or attempted to induce others in the software industry, including but not limited to Hewlett Packard and Intel, from doing business with SCO from and after the LinuxWorld trade show held during January 2003.

In addition, IBM has unfairly competed with SCO by acts that include, but are not limited to, improper use of the Software Products and modifications and derivative works of the Software Products in a manner exceeding the scope of the license. Such acts include, but are not limited to, contributions of the modifications and derivative works to Linus Torvalds and/or others in the open source community.

In addition, IBM has unfairly competed with SCO by acts that include, but are not limited to, entering a conspiracy and combination in restraint of trade with others in the Linux development and...


INTERROGATORY NO. 1: (IBM)
Please identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in ¶ 105 of the Complaint.

fromSUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 1: (SCO)
In addition to the General Objections set forth in Plaintiff's Responses, SCO notes that it still has not received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. Subject to and without waiving these objections, Plaintiff supplements and revises its response to this Interrogatory No. 1 and states that the information IBM (and separately, Sequent) agreed to maintain as confidential or proprietary for SCO and/or trade secrets includes, without limitation, UNIX software design methods for creation and modification of software based on UNIX System V, including those developed in AIX and Dynix. These UNIX methods include ways to modify IBM's version of UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx. The UNIX methods include those inherent in and learned through access to the System V source code licensed to IBM and/or Sequent and those developed by IBM and/or Sequent in creating derivative works and modifications based on UNIX System V pursuant to licensing agreements with SCO's predecessors and SCO and those that IBM and/or Sequent agreed to maintain in confidence for SCO's predecessors and SCO, in addition to UnixWare code and methods provided to IBM separately. Without limitation, the methods include technical UNIX categories, such as multiprocessor locking and unlocking methods, methods for avoiding locking requirements, methods for implementing filing systems, de-bugging methods, methods for implementing and improving processor scalability, methods for implementing and improving processor reliability, methods for implementing and improving processor accessibility, methods for implementing and improving scheduling systems, methods for implementating and improving memory management, methods for implementing and improving threading and multi-threading, and methods for implementing and improving general system functionality based on UNIX technology. Source code files identified by SCO thus far which are responsive to Interrogatory No. 1 and part of which include information (including methods) that IBM was required to maintain as confidential or proprietary pursuant to contract with SCO and/or which constitute trade secrets misused by IBM are found within LINUX 2.4 and/or Linux 2.5 kernels under the following source file headings[1]:

[ Reply to This | # ]

Item # 3
Authored by: lightsail on Tuesday, November 11 2003 @ 01:06 PM EST
Item # 3- Deficiencies in SCO’s Supplemental Response: IBM requests SCO provide
a list of: (2) the persons to whom it distributed its Linux products.

Oxymoron: “trade secret and any confidential or proprietary information” given
to anonymous users. Can SCO even give a count of the anonymous users?

IBM has been demonstrating a world class level of legal talent in the matter of
Intellectual Property. It is a shame that the opposition is so poor prepared and
clearly of a lesser caliber. Not to mention that they don’t seem to have a valid
case, on even the smallest points.


[ Reply to This | # ]

  • Quotes - Authored by: Anonymous on Tuesday, November 11 2003 @ 03:55 PM EST
  • Item # 3 - Authored by: J.F. on Tuesday, November 11 2003 @ 08:15 PM EST
    • Item # 3 - Authored by: J.F. on Tuesday, November 11 2003 @ 08:18 PM EST
OT: Monterey
Authored by: Grim Reaper on Tuesday, November 11 2003 @ 01:43 PM EST
As I commented in a prior thread, Caldera themselves were likely contributors to the demise of Monterey. This position is supported by this informative post I found on NewsForge (see the first comment at the end of the article):

Ransom Love's Linuxworld 2000 Keynote Speech

---
For the love of money is a root of all kinds of evil (1 Timothy 6:10); R.I.P. - SCO Group, 2005/08/29

[ Reply to This | # ]

OT: SCOX Down $1.39
Authored by: Anonymous on Tuesday, November 11 2003 @ 03:55 PM EST
As of 15:54 EST, SCOX was $14.53, down $1.39 on the
day. This is the second or third day the stock has slide
more than 6% in trading.

Sounds like the bottom is about to breakout and the news
is finally getting out.

[ Reply to This | # ]

Search link failed
Authored by: lightsail on Tuesday, November 11 2003 @ 03:56 PM EST
Thank you for locating the story. I used the search function and the link
failed. After reading your reply, I tried with a different search request and it
worked.

Moral: If at first...

[ Reply to This | # ]

New article, new SCO quotes
Authored by: Anonymous on Tuesday, November 11 2003 @ 04:04 PM EST
Article about subpeonas

http://www.forbes.com/2003/11/11/cz_dl_1111ibm.html?partner=yahoo&referrer=

according to quotes in article, IBM fishing, bullying, stalling, etc., etc.

[ Reply to This | # ]

IBM Addendum to Memorandum in Support of IBM's 2nd Motion to Compel Discovery
Authored by: eggplant37 on Tuesday, November 11 2003 @ 05:59 PM EST
After reading this excellent columnized display of the issues in the motions to
compel discovery, does anyone else agree with me that SCO and their lawyers are
playing a game here to see how long this can be dragged out? Also, does anyone
else agree that SCO, et al, haven't done a shred of homework on this issue,
that they rushed into court on a whim to pump-and-dump their stock prices based
on litigating everyone and their brother? Jeebus Xist, I don't understand how
SCO and their lawyers could be so bleedin' evasive.

[ Reply to This | # ]

IBM Addendum to Memorandum in Support of IBM's 2nd Motion to Compel Discovery
Authored by: Anonymous on Tuesday, November 11 2003 @ 08:14 PM EST
Okay I got it.

SCO is saying that IBM put Trade Secrets into Linux, which are so secret that
even SCO does not know them and now IBM should hand them over through court
orders, so SCO can claim ownership of them.

But seriously, SCOs and IBMs lawyers are talking different things. SCO says you
signed a paper stating everything you learn from Unix V5 shall be kept secret,
yet you release code to Linux which was once attached to Unix V5 by your
employees. Now this is derivative and does not comply with our contracts.

Subsequently they ask IBM to tell them what those Trade Secrets are that IBM put
into Linux because SCO can not know this and it is only within IBMs knownledge
of what they contributed.

IBMs lawyers on the other hand think more straight (like the most of us). They
tell the Judge :"SCO is telling god and the world that we distributed
their secrets, so we want SCO to show us what exactly they are talking
about".

From this misarrangement comes all this confusion. The first thing they have to
figure out are the contracts between SCO and the rest of the world. Then they
should apply some common sense and kick SCO out of court.

Of course if the Judge finds that IBM indeed signed away all their IP,
Copyrights and what not, then Good Night Linux and Open Source. In a real world
only one point of view can exist in the same space/time continuum.

SCO says : "It's us who's right", IBM and the rest of the world
says : "No, you're a crook and it's our code to begin with. We wrote it.
You have no proof."

Who wins will depend a whole lot on the contracts and what the court system
makes out of them and NOT on who wrote the code.

[ Reply to This | # ]

IBM's JFS2 for Linux history and roots
Authored by: Anonymous on Wednesday, November 12 2003 @ 12:02 AM EST
This is taken from http://www-124.ibm.com/jfs/. I read the same
text probably two years ago, way before this crap started. JFS2
is a complete rewrite and was never covered under the AT&T
contracts and SCO knows this very well.

IBM introduced its UNIX file system as the Journaled File System (JFS)
with the initial release of AIX Version 3.1. This file system, now
called JFS1 on AIX, has been the premier file system for AIX over the
last 10 years and has been installed in millions of customer's AIX
systems. In 1995, work began to enhance the file system to be more
scalable and to support machines that had more than one
processor. Another goal was to have a more portable file system,
capable of running on multiple operating systems.

Historically, the JFS1 file system is very closely tied to the memory
manager of AIX. This design is typical of a closed-source operating
system, or a file system supporting only one operating system.

The new Journaled File System, on which the Linux port was based,
was
first shipped in OS/2 Warp Server for eBusiness in April, 1999, after
several years of designing, coding, and testing. It also shipped with
OS/2 Warp Client in October, 2000. In parallel to this effort, some
of the JFS development team returned to the AIX Operating System
Development Group in 1997 and started to move this new JFS source
base
to the AIX operating system. In May, 2001, a second journaled file
system, Enhanced Journaled File System (JFS2), was made available for
AIX 5L. In December of 1999, a snapshot of the original OS/2 JFS
source was taken and work was begun to port JFS to Linux.

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OT: Recommended Reading,
Authored by: Anonymous on Wednesday, November 12 2003 @ 02:10 AM EST
I recommend reading (especially Chapter 2 and Chapter 3) of

Conspiracy by Daniel Pipes ISBN 0-684-83131-7

This a fairly academic style book (but readable) about the history of
conspiracism (proposing conspiracy theories, e.g. Illumanti control the world).


Chapter 2 deals with the definitional difference between:

(a) conspiracies which do exist and refers to an act (e.g. as defined in law)

(b) conspiracy theory refers to a perception of a nonexistent conspiracy

For example (given in the book):
"The Russian Revolution was a real conspiracy carried out by Lenin and
others; it was also subject to a conspiracy theories involving everyone from the
eighteen-century Illuminati to contempory German socialists and the Elders of
Zion."


Chapter 3 deals with how to tell the difference between a real conspiracy, and a
conspiracy theory. The book gives you tools to help.

Pipes identifies the following tools:

COMMON SENSE:
..."Two conclusions follow: conspiracies take place only within a
context..., and the more elaborate an alleged plot is, the less likely it
exists. Planning a coup d'etat is reasonable; planning the French Revolution is
not."

A KNOWLEDGE OF HISTORY:
"Familiarity with the past shows that most conspiracies fail. Random
occurrences throw them off course, participants renege, furtive moves alert the
opponent. In general, the more elaborate the plot is, the less likely it
works."

DISTINCT PATTERNS
"Two main characteristics make it [conspiracy theories] different from
conventional thinking: its standards of evidence and its basic assumptions.
Distinctive features of its evidence include these:
"- Obscurity. On the assumption that appearances deceive, they reject
conventional information and seek out exotic and little-known variants."
"- Reluctance to divulge information"
"- Reliance on forgeries"
"- Inconsistencies"
"- Overabundant learned factoids and pedantic references"
"- Piling on conspiracy theories. The gap in one conspiracy theory (extra
bullets not found in John F. Kennedy's body, for example), is explained by yet
another conspiracy theory (doctors surreptitiously took them out)."
"- Dismissing contradictory evidence as a sign of a conspiracy."
"- Indiscriminately accepting any argument that points to a
conspiracy."
"- Oblivious to the massage of time."
"- Cavalier attitude towards facts."


"Finally, conspiracy theories contain several recurring
assuptions."

"POWER IS THE GOAL."

"BENEFIT INDICATES CONTROL. Whoever gains from an event must have caused
it. If you know who gained, you know who conspires... Nearly third parties stand
accused of organizing a conspiracy to kill President Keendy, and the basis in
every case is some alleged benefit from his demise.... Boris Yeltsin gained most
from the 1991 coup attempt in the Soviet Union; he must have orchstrated
it."

"CONSPIRACIES DRIVE HISTORY. Other forces do not count." ...
"The conspiracist vision of the past stands deeply at variance with
conventional academic scholarship. The latter takes many factors into account to
understand change; the former has found a unified theory or "a master
monisttic design" to explain all."

"NOTHING IS ACCIDENTAL OR FOOLISH. Chance has no role."

"APPEARANCES DECEIVE. Life is a staged reality."..."The
assumption that appearances deceive leads to four main mistakes; finding enmity,
collusion, hiearchies and freedom where they do not exist."
"-- Apparent enemies are really friends."
"-- Apparent friends are really enemies."
"-- No discipline means discipline." ... "Capitalism is not
the competitive system it appears to be but is manipulated from the top;
businessmen have no choice to accept orders from politicians."
"-- Discipline means no discipline."

..."In short, "appearances deceive" is a passport to bad
judgment."

"In aggregate, these distinctive patterns of evidence and of argument
provide the mechanism by which we can tell the conspiracy from the conspiracy
theory."

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OT: From a slashdot poster ..
Authored by: Anonymous on Wednesday, November 12 2003 @ 11:47 AM EST
Congressman Barney Frank (D Mass.) on SCO suit (Score:5, Interesting)
by hqm (49964) on Wednesday November 12, @08:59AM (#7452615)

When SCO was going around threatening end users, I sent a letter to my
congressman, Barney Frank of Massachusetts. Here is his response:

====

September 26, 2003

Dear Mr. Minsky,

I share your view that the suits being brought by the SCO Group
against the users of the Linux system are an entirely inappropriate
use of the legal systems for broader corporate purposes. While I have
note been able, obviously, to examine these in detail, the suits do
not appear to me, from what I have read, to have any merit, and in
fact seem to be motivated, as I said, by an effort simply to prevent

the use of Linux for competitive reasons.

There is, unfortunately, a very limited role for Congress here. I
agree with those who would like to see us "stop SCO from punishing
innocent consumers to inflate its other legal claims." But under our
separation of powers doctrine, Congress has no role whatsoever to play
in the pursuit of particular cases. We can pass laws which prevent
certain types of suits from being brought, but it is very, very
difficult to pass those in a way that would be retroactive - that is,
that would apply to existing suits. And the problem with this suit is
not that it is of a sort of legal claim that is inappropriate to
bring, but that it is totally unjustified on the merits. In other
words, the remedy here is for these suits to be dismissed on their
merits and Congress has no role, as I have said, in doing that.

I am prepared to join in expressions of extreme disapproval of what
SCO is doing, and I will be consulting with my colleagues to see if
there is a movement to do that. I hope that will have some impact on
them. All of these lawsuits brought against individuals will of course
be dismissed but I realize that is of little consolation to people
who have had to go through the trouble and expense of defending against
them. It may be that at some point a judge will act decisively enough
in this regard to prevent this proliferation of suits, and while, as I
said, our Congressional role is very limited here, I will be
encouraging anything we can do along these lines.

Barney Frank

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eWEEK sticks a knife in SCO - great article
Authored by: Anonymous on Wednesday, November 12 2003 @ 01:09 PM EST
http://www.eweek.com/article2/0,4149,1380517,00.asp

"The most important paragraph of the Reply Memorandum spells out what many
of us have been saying for a while.

"Put bluntly, SCO's public relations efforts are at odds with its conduct
in this litigation. SCO has made repeated, public accusations of IBM's supposed
misconduct, while refusing to disclose its alleged evidence to IBM. Either SCO
has evidence to support its accusations or it does not. If it does, IBM is
entitled to see it now; if it does not, IBM will be entitled to dismissal of
this case. In any event, it is time for SCO to respond properly (although
belatedly) to IBM's discovery requests."

Let me translate that for you: Put up or shut up about IBM stealing code."

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Has the Bubble Burst?
Authored by: SilverWave on Wednesday, November 12 2003 @ 01:18 PM EST
I have followed Groklaw for a while and I have always felt that SCO's case was
threadbare.. but I am shocked by how this table highlights the frivolous nature
of SCO's case.

With the stock price falling has the bubble burst?

I think the message IS getting out (see "No More Mr. Nice IBM - IBM Goes
After SCO and Its Supporters http://www.eweek.com/article2/0,4149,1380489,00.asp
By Steven J. Vaughan-Nichols)

In this article Steven makes the point that if SCO will not shown the
"problem code", IBM can ask people who SCO did show the code to,
like the now infamous Laura DiDiois. This is a classic case of there being more
than "one way to skin a cat"

Just to wet your appetite here are a couple of quotes from the same article:

"Let me translate that for you: Put up or shut up about IBM stealing
code."

and my favourite...

"It appears to me that SCO has been bluffing higher and higher since the
company launched its case in March. Now IBM, the IT businesses and the market
are beginning to call its bluff."

Fun, fun, fun!

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If this were a movie....
Authored by: Anonymous on Wednesday, November 12 2003 @ 01:23 PM EST

IBM: Tell us your specific allegations.

SCO: You don't need our specific allegations. (waves hand)

IBM: Tell us your specific allegations. (waves hand)

SCO: No fair, no fair! You waved your hand like we waved our hand! We'll sue, I tell you!

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Plausible angle for SCOG
Authored by: Dan M on Wednesday, November 12 2003 @ 01:41 PM EST
Very interesting read. An analysis of the indemnification angle.

http://www.orangecrate.com/article.php?sid=495

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