decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Saturday, November 29 2003 @ 05:32 AM EST

Here is SCO's Supplemental Responses to IBM's Second Set of Interrogatories and Second Requests for Documents. The PDF is available here. This is the document SCO complains IBM didn't pay enough attention to before filing its Second Motion to Compel.

Just to refresh our memory, here is what SCO argued in its MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as to why the motion should be denied based on IBM having failed to confer and try to get answers from SCO before filing its second motion:

"IBM seeks to excuse its lack of compliance with the Rule by claiming that consultation occurred long ago with regard to three interrogatory answers from a prior set of discovery (Defendant's First Set of Interrogatories) that were incorporated in the latest answers. IBM's attempt to bootstrap failed efforts to resolve an earlier discovery dispute as purported good faith efforts to resolve this subsequent discovery issue should be rejected.

"First, since the time of those earlier discussions, SCO has voluntarily supplemented and revised its prior answers to the relevant interrogatories. As a result, IBM's concerns or criticisms directed to the original answers to the earlier interrogatories cannot be considered a good faith conference when the answers to Interrogatories 12 and 13 incorporate SCO's revised and supplemental responses to the earlier interrogatories. . . .

"3 As detailed below, IBM only referred to and attached SCO's original answers to interrogatories to its Motion to Compel. The revised and supplemental answers greatly detail the confidential information that IBM improperly used. This apparent reliance upon the superseded original answers highlights the need for a good faith conference in advance of filing a motion to compel."

However, as you read their supplemental answers, you will notice that they still don't answer the fundamental questions IBM is asking, like what code are we talking about? and what is this case all about? what are we supposed to have done? And you can see with your own eyes that SCO did refer IBM to their original answers, just as IBM says in its Motion to Compel.

SCO dances around each question. It can't answer more fully because it needs IBM to answer its questions first; it refers IBM back to its first responses; it will provide more someday; IBM can get what it wants from SCO's web site. However, normally, even if you don't have all the information at hand, you provide what you do have. That is, if you are not stalling.

The answer to the question about whether it has ever released Linux and if so under what license, such as the GPL, and to whom, is typical. Their answer is they never meant to release any of the infringing code under the GPL. (So if you find any materials showing that SCO nee Caldera knowingly released Linux with NUMA, JFS, or any of the four, send them along.) Call that an answer if you like, but IBM didn't view it as a complete and forthcoming answer and so it filed its Motion to Compel SCO to answer the question.

Another: IBM asked them to "identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights" and SCO answers that it can't say because it hasn't received responsive discovery from IBM, and part of the information is "peculiarly within the knowledge of IBM". Peculiar is the word for it. Why would IBM know what code SCO is claiming belongs to SCO?

Repeatedly, SCO says IBM is asking for too much because it is requesting "the identity of source code and other materials in Linux contributed to Linux by parties other than IBM or Sequent." This seems to be talking about the SGI code snippet. But if SCO was on the level, they could just identify everything else that isn't the SGI snip of code, couldn't they? It raises the question: is that all they have? Why SCO thinks referring to these non-answers will make points with the judge is hard to fathom.

Or take another glaring example. IBM asked for all documents related to SCOForum. SCO says IBM can download the presentation from the internet. If they find anything else, they will make it available one of these unspecified days.

That is an incredible answer. Obviously there was internal communication in preparation for the show, a memo, an email, a letter, interaction between executives and those preparing the show. The slide show didn't just spring forth fully formed from the head of Zeus. Somebody had to decide what code to show, that it should be obfuscated in Greek, what the text for each slide should say, etc. Then, typically in corporations, somebody else had to say yes or no to what was decided, then it likely went back to the drawing board for rewrites, etc. All of that paperwork is discoverable.

We know, for example, that the presentation now on SCO's website that they churlishly tell IBM to go get themselves differs from the one they originally put up. That alone ought to require them to provide the original version in discovery. At a minimum.

No. SCO has nothing to show. Get it yourself, they say. This isn't even good pretend compliance.

They remind me of a goat I met once out West. A friend had goats on their farm and while I was visiting, I went with them to milk one of the goats, who didn't want me around. She stood on my foot on purpose, put her head right up close to me, looking me straight in the eye with her piercing, weirdo, Picassoesque blue eyes, as if to say, "Yeah, I'm standing on your foot. What are you going to do about it?" This document is like that goat in attitude. They won't answer and then they still won't answer and when IBM complains to the judge, they say, "They should have asked us one more time". And that's probably why IBM filed its Motion to Compel without further time-wasting conferences with a goat.

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

Brent O. Hatch (5715)
HATCH, JAMES & DODGE
[address, phone, fax]

Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Attorneys for Plaintiff


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

THE SCO GROUP,
Plaintiff

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant

PLAINTIFF'S SUPPLEMENTAL
RESPONSE TO DEFENDANT'S
SECOND SET OF INTERROGATORIES
AND SECOND REQUEST FOR THE
PRODUCTION OF DOCUMENTS

Case No. 2:03CV0294DAK

Judge: Dale A. Kimball
Magistrate Brooke C. Wells

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, and the Local Rules for the United States District Court for the District of Utah, Plaintiff, The SCO Group, Inc. ("SCO"), hereby responds and objects to Defendant, International Business Machine Corporation's ("IBM") Second Set of Interrogatories and Second Request for the Production of Documents, as follows:

GENERAL OBJECTIONS

Plaintiff SCO hereby incorporates by reference all of the General Objections set forth in Plaintiff's Response to Defendant's First Set of Interrogatories and First Request for the Production of Documents (the "General Objections"). Each of the General Objections is incorporated by reference into each of the responses set forth below, which responses SCO makes without waiver of the General Objections.


SPECIFIC OBJECTIONS AND RESPONSES TO
INTERROGATORIES AND REQUEST FOR PRODUCTION


INTERROGATORIES

INTERROGATORY NO. 12:

Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

RESPONSE TO INTEROGATORY NO 12:

In addition to the General Objections, SCO notes that it has not received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiary within the knowledge of IBM. In addition, SCO objects to this question as overly broad and unduly burdensome, and on the basis that is seeks information neither relevant nor calculated to reasonably lead to the discovery of admissible evidence insofar as it requests the indentity of source code and other material in Linux contributed to Linux by parties other than IBM or Sequent. Subject to and without waiving these objections, as it pertains to SCO's rights involving IBM's contributions, SCO incorporates its answers to its revised and supplemental answers to Interrogatory Nos. 1 and 2.

INTERROGATORY NO. 13:

For each line of code and other materials identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and, if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, and the terms under which is was distributed or made available (such as under the GPL or any other license).

RESPONSE:

In addition to the General Objections, SCO notes that it 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. In addition, SCO objects to this question on the basis that is overly broad and unduly burdensome and seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence insofar as it requests the identity of source code and other materials in Linux contributed to Linux by parties other than IBM or Sequent. Subject to and without waiving these objections, as it pertains to SCO's rights involving IBM's contributions, SCO incorporates it answers to its revised and supplemental answers to Interrogatory Nos. 1 and 4.

Insofar as this interrogatory seeks information as to whether plaintiff has ever distributed the code in question or otherwise made available to the public, SCO has never authorized, approved or knowingly released any part of the subject code that contains or may contain its confidential and proprietary information and/or trade secrets for inclusion in any Linux kernel or as part of any Linux distribution.


DOCUMENT REQUESTS

REQUEST NO. 74:

All documents relating to SCO Forum 2003.

RESPONSE:

Subject to and without waiving the General Objections and Specific Objections in the interrogatories, Plaintiff objects to this Request No. 74 in that it is overly broad and unduly burdensome by requesting "all documents", which may include documents wholly irrelevant to any issue in this action and which are not calculated to lead to the discovery of any admissible information. Subject to and without waiving these objections, SCO directs IBM to www.sco.com where it may retrieve these documents, which IBM has already done as evidenced by the use of these documents in other filings with the court. If there are any other responsive documents, after a search of reasonable scope, SCO will make available for copying or inspection at a mutually convenient date and time, further documents responsive to this Request.

REQUEST NO. 75:

All documents relating to the information requested in Interrogatory Nos. 12-13.

RESPONSE:

Subject to and without waiving the General Objections and Specific Objections in the interrogatories, and insofar as the request seeks releveant documents, plaintiff, after a search of reasonable scope, will make the requested documents available for copying or inspection at a mutually convenient date and time.

 

DATED this 23rd day of October, 20003.

As to Objections:

By: [signature]
Stephen N. Zack
Mark. J. Heise
BOIES, SCHILLER & FLEXNER LLP

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE

As to Responses:
Christopher S. Sontag
Sr. Vice President
Operating Systems Division
The SCO Group, Inc.


STATE OF UTAH  )
                                ss.
County of Utah____)

The above signed Christopher S. Sontag, being duly sworn upon oath, deposes and says that he has read the above responses to discovery requests and that the responses contained therein are true to the best of his knowledge, information and belief.


  


SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents | 209 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Roll on December 5th
Authored by: jaydee on Saturday, November 29 2003 @ 07:45 AM EST
Every time I read one of SCOs documents I feel like I'm in some "Alice
Through The Looking Glass" of sentence first evidence later.

I would be most grateful if on December 5th the judge can get a bit of reality
in this.

[ Reply to This | # ]

OFF TOPIC: Disapearing IBM presentation
Authored by: inc_x on Saturday, November 29 2003 @ 07:59 AM EST
http://www.desktoplinux.com/files/article003/ index.html used to contain the sheets of the presentation that IBM did for the Linux Desktop Conference but now contains the following mysterious message:
The slides from IBM's keynote presentation at the Desktop Linux Consortium conference are not available at this time. IBM informed DesktopLinux.com that the presentation we initially posted was not "approved" for publication, and they will provide a replacement within a few days.

Please check back later this week -- thanks!

Does anyone has a copy of the presentation that was originally posted there?

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: Jude on Saturday, November 29 2003 @ 08:12 AM EST
SCO seems to be saying that they can't identify IBM's alleged wrongdoing(s)
until IBM satisfies SCO's discovery requests.

How is this different from them saying they never had a case to begin with? If
they can't even *name* the alleged offenses prior to discovery, then what the
heck was their reason for filing suit in the first place?

[ Reply to This | # ]

The ever changing SCO case
Authored by: smtnet1 on Saturday, November 29 2003 @ 08:27 AM EST
When this case started I like most people thought that the SCO case against IBM
was about IBM "line-for-line" copying "more than one million
lines" of code from SCO (AT&T) UNIX to Linux.

Now the SCO case against IBM appears to be a complex contract dispute with SCO
claiming that they own the rights to any code that IBM have ever used in AIX or
DYNIX. Surely the Ammendment X, the side letter, nad SCO (Caldera) GPL release
of Linux kill off this complaint.

There are plenty of quotes where Darl or Blake are quite clearly implying that
IBM have directly copied SCO (AT&T) owned code into Linux.

Don't press releases and interviews count as evidence, or just what the lawyers
say in court? The two are very different.

IBM clearly want the precise details of the alleged copied code in Linux so that
they can once and for all nail down what SCO are claiming and get the case
dismissed (and kill off the Linux licensing scam), whereas SCO want to leave the
case as a vague claim about "UNIX methods" and IBMs use of IBM code
in Linux in violation of the original AT&T license.

If SCO are allowed to avoid specificity about their claims and embark on a
fishing trip looking through every modification to AIX and DYNIX over the last
20 years then this case will drag on for many years. Perhaps I have just hit the
nail on the head, drag the case on for many years, extort license fees out of
Linux users, and play the stock for as much money as they can.

[ Reply to This | # ]

Yes, Caldera/SCO knew about SMP
Authored by: Nathan Hand on Saturday, November 29 2003 @ 08:47 AM EST
The answer to the question about whether it has ever released Linux and if so under what license, such as the GPL, and to whom, is typical. Their answer is they never meant to release any of the infringing code under the GPL. (So if you find any materials showing that SCO ne Caldera knowingly released Linux with NUMA, JFS, or any of the four, send them along.)

You bet your boots, Caldera knew. Caldera advertised the SMP features for Linux 2.4 from their own website for their Linux 2.4 Technology Preview. The Wayback Machine still has a copy.

SMP hardware

If you encounter problems with SMP hardware (typically, the system hangs when probing the floppy drive), please try again by removing the "nosmp" and "noapic" parameters from the boot parameters. When booting from the CD, you can edit the boot parameters by selecting the line that begins "kernel =" and pressing the letter "e". Then delete the "nosmp" and "noapic" parameters. Finally, press Enter, then type "b" to boot the system.

You will also need to make these changes on the installed system. To do so, edit /boot/grub/menu.lst and delete the "nosmp" and "noapic" parameters.

www.caldera.com/preview/errata.html

Difficult to feign ignorance when they've given that much detail. Caldera knew SMP was in Linux 2.4. Heck, they even supported the original implementation of SMP (by Alan Cox) with a gift of hardware. Caldera's contribution is still acknowledged in arch/i386/kernel/smpboot.c.

* Original development of Linux SMP code supported by Caldera.

arch/i386/kernel/smpboot.c

Of course, SCO might claim that they knew the SMP feature was in Linux 2.4 but they were unaware that UnixWare code had been used in the Linux implementation. This takes a presumptuous belief that there actually is UnixWare SMP code in Linux 2.4; something that I personally doubt for various technical reasons. However it's not a very good argument because it shows lack of due diligence on SCO's part. SCO should have audited the product before selling it. It's not like they had to write it, yet they couldn't be bothered to even read it?

It also makes a mockery of Darl's crazy claims that SCO's developers have some magical ability to detect improper donations of code. If SCO's developers couldn't even spot code from one of their own products (UnixWare) slipping into another one of their own products (OpenLinux) then how do they expect anybody to believe they could spot improper contributions from other products? Yet this seems to be the same unfair expectation they have for the Linux developers who don't even have access to the UnixWare source code.

Quick digression over the technical aspects of SMP. It's simply not possible to copy SMP code from the SYSV kernel and drop it into the Linux kernel as a single lump. SMP is not a neatly defined piece of code like a utility (/bin/ls) or a driver (aic7xxx.ko). SMP is an all-encompassing method that applies across the entire kernel. It requires intimate knowledge of the kernel to decide things like "these two code paths can execute in parallel, but this path cannot".

The theory behind SMP is not unique to UNIX and it is well-documented in reference books. The difficulty in implementing SMP is not the theory - which any graduate of computer science should know - but in the practise of integrating it with the other parts of the kernel. This includes the memory management, the scheduler, reentrancy problems, driver designs, and so on. For example, it's not possible to copy SMP code even from Linux to the free BSDs because of architectural differences. The idea that any non-trivial SMP code could be directly copied from UnixWare into Linux is laughable.

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: Thomas Downing on Saturday, November 29 2003 @ 08:51 AM EST
From the response to Interrogatory 12:
Insofar as this interrogatory seeks information as to whether plaintiff has ever distributed the code in question or otherwise made available to the public, SCO has never authorized, approved or knowingly released any part of the subject code that contains or may contain its confidential and proprietary information and/or trade secretes for inclusion in any Linux kernel or as part of any Linux distribution.

Assume that SCO is telling the truth here, after all, this is a court filing, so they should be. Now what does that say?

In is without dispute that SCO distributed GNU/Linux, and did so for some time. I doubt they can claim it was inadvertent. Therefore, the code in question is not in any SCO distribution. If there is no disputed code in Linux as distributed by SCO, there could only be de minimus infringing code in kernel.org (official kernel) or gnu.org (official GNU) distributions. If there is no infringing code, there was no contract violation, and the case falls.

Unfortunately, this case won't be decided that easily.

---
Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc.

[ Reply to This | # ]

PJ and Lawyers?
Authored by: brenda banks on Saturday, November 29 2003 @ 08:53 AM EST
have you ever heard of anyone obstructing discovery to this extent?
sco is almost flippant and disrespectful? or am i reading it from a cynical
view?


---
br3n

[ Reply to This | # ]

SCO's reasons for delay.
Authored by: Sunny Penguin on Saturday, November 29 2003 @ 09:00 AM EST
It seems SCO knows they can't possibly win in court, so they are going to draw
out the FUD as long as possible.

This FUD storm, together with the new DRM BIOS for Microsoft Windows coming out
this year, make a truly bleak future for competitive computing. If SCO had not
slowed the uptake of Linux, TUX would be well on the road to dominance in the
business world. If Linux dominated the business desktop, the DRM Microsoft
Windows only BIOS would have never been created.

It would be nice to see the Microsoft Windows only BIOS go down in history with
the football bat.

I am sure Darl and crew have positions waiting at Microsoft when SCO bankrupts
itself.


---
Unix:
What the SCO execs will be after the shareholder suit.

[ Reply to This | # ]

New Theory: SCO short changed in the Love Department
Authored by: Anonymous on Saturday, November 29 2003 @ 09:12 AM EST
SCO_girl: IBM_boy you've been cheating with that Linux_woman havent you
IBM_boy: No I swear, were just good friends
SCO_girl: Dont lie to me. I know what I see
IBM_boy: But you cant have seen anything because theres nothing going on
SCO_girl: Of course there is something going on, and I have the proof.
IBM_boy: Really? This should be interesting. Show me your proof.
SCO_girl: Not that old trick IBM_boy, do you think I'm stupid. You have the
proof and I am going to force you to show it. Now hand it over.
IBM_boy: What? I dont have any proof!
SCO_girl: Dont play games with me you bastard. Hand it over.
IBM_boy: I've got some Postcards from a trip to Europe.
SCO_girl: Aha! Hand em over, then we'll see who is lying
IBM_boy: That seems pretty stupid ...Which ones do you want
SCO_girl: Give me em all. I'll find something in there to pin on you, you
bastard two-timer
IBM_boy: You're mad.
SCO_girl: Too right I'm mad. Everybodys been sleeping with that no good
Linux_bitch and I'm gonna make sure someone pays.

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: Mark Levitt on Saturday, November 29 2003 @ 10:12 AM EST
"Why would IBM know what code SCO is claiming belongs to SCO?"

Ahh. Well, this seems to be the heart of their argument, I think.

Basically, I think it comes down to SCO's definition of
"derivative" and an interpretation of their contract with IBM that
all derivitive works are theirs.

In other words, they are arguing that any code IBM placed in AIX (which is based
on their UNIX SysV code) is a "derivative work". And, they think
that the contract prohibits them from giving it to somone else.

In other words, any code that was every placed in the same file as UNIX SysV
code suddenly becomes "part of" UNIX SysV code, belongs to them, and
cannot be seperated.

The irony here is that this interpretation of copyright law and the contract is
exactly the same "viral" characteristics they SCO accuse the GPL of
being. It's not true of the GPL any more than it's true of UNIX SysV code.

If you place your code with GPL code, you can't distribute the GPL code without
also distributing your code. Put that doesn't mean that your code is suddenly
"owned" by the GPL. If you seperate out your code completely fromt
the GPL code, you can do whatever you want with your code.

PJ, I wonder if you could point us at some case law regarding the definition of
"derivative works" as that seems to be the crux of SCO's case.


[ Reply to This | # ]

SCOforum Documents
Authored by: Anonymous on Saturday, November 29 2003 @ 10:35 AM EST
In reguards to #74.

This basically looks to me like they very blatently tell the court "the
documents IBM wants in conjunction with SCOforum are very damaging to our case,
so we cannot allow them to have them in discovery"

Who is directing this movie? Terry Gilliam??

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: minkwe on Saturday, November 29 2003 @ 10:41 AM EST
From the horses mouth.

SCO OpenLinux Product Brochure

Page 2 says:

Features of SCO Linux 4 include:
Linux 2.4.19 Kernel The core of SCO Linux Server 4.0 is the 2.4.19 Linux kernel. New features include broadened USB support, Logical Volume Manager, improved journaling file system support, POSIX-ACLS, new O(1) scheduler (improves SMP support), Asynchronous I/O, Enterprise Volume Management System (EVMS), PCI Hot Plug Support on supported hardware, NUMA support, and many other performance enhancing capabilities.

Journaling File System
Journaling file systems add a higher level of reliability and faster recovery time. JFS, ReiserFS, XFS and Ext3 journaling file systems are included with SCO Linux Server. Each of these file systems has been tested and optimized for the best performance and stability.

---
There are only two choices in life. You either conform the truth to your desire, or you conform your desire to the truth. Which choice are you making?

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: Steve Martin on Saturday, November 29 2003 @ 11:27 AM EST

IBM may actually have made a mistake in Interrogatory # 12. They asked for

all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights;
Under SCO's apparent theory, they actually have rights to any code that IBM contributed to the kernel improperly (for the purposes of this case). Until they can find out what IBM contributed (and I'm stating this attempting to speak from their viewpoint), they cannot know which code was contributed by IBM, and therefore which code they have rights to under this case.

Perhaps what IBM should have asked for in their Interrogatory was "all source code and other material in Linux ... to which plaintiff claims rights ...".

Of course, as is obvious, IANAL.

[ Reply to This | # ]

Some sco/caldera site links on SMP, XFS, JFS etc
Authored by: Anonymous on Saturday, November 29 2003 @ 12:04 PM EST
XFS info in knowledge base, mentions enterprise filesystems...
SCO Linux 4.0 Server for Itanium Release Notes, mentions XFS...
and finally the OpenLinux Developer Guide, with this fascinating quote of the day:
Caldera is an active contributor to many open source activities, especially those that promote portability, stability, and performance in the operating system and development environment.

[ Reply to This | # ]

HIstory of SMP in Caldera's Linux Kernels
Authored by: mac586 on Saturday, November 29 2003 @ 12:10 PM EST
So if you find any materials showing that SCO ne Caldera knowingly released Linux with NUMA, JFS, or any of the four, send them along

I did a little digging via Google this morning to see if I could come up with any new angles we haven't examined previously. The preponderance of data involves SMP. I was never a Caldera Linux user, but there were enough of them on the internet posting to alt.os.linux.caldera to make things interesting. Did you know that Caldera Open Linux shipped with a SMP kernel buy default?

1. From an Oct 1999 posting:

    COL 2.2 uses kernel 2.2.5 and this one is not propper supporting SMP.
    COL 2.3 instead uses kernel 2.2.10 and this one has SMP propper implemented.
    So COL 2.3 does, whereas COL 2.2 doesn't.

2. Here's another posting from June 2000, explaining how Caldera configured lilo to disable SMP at boot time for single CPU systems:

    It's compiled for SMP by default - Caldera normally pass the NOSMP parameter when using lilo/grub to boot so that it runs in single processor mode instead.

3. And the evolution continues with OpenLinux 3.1 and a posting from Aug 2001

    Can anyone else running OpenLinux 3.1 with the stock kernel run: uname -a
    OpenLinux decided to install an SMP kernel on my machine even though I have a uniprocessor mobo. Weird.

4. Obviously, Caldera was an early adopter of SMP capabilities to make it the default kernel on its distribution. Here's a brief discussion on SMP from their OpenLinux 2.2 Getting Started Guide:

    SMP

    Symmetrical Multi-Processing is a capability that allows Linux (and many other operating systems) to utilize multiple CPUs on the same computer system. For example, if you have a dual-Pentium computer, Linux can utilize both Pentium chips to make your programs run faster.

    Previous versions of Linux did not usually have SMP enabled because it did not add greatly to the system performance. The Linux 2.2 kernel is now fully-SMP capable. This feature can be tuned if you intend to use high-performance, multi-processor systems.

5. Many of us are getting excited about the pending release of kernel 2.6. The community may have been more excited about the release of the 2.4 kernel... the testing for 2.4 was lengthy, and this version promised to be a MS killer. This technology is what made all of those Linux IPO's take off (that and the DoJ case against MS).

Those in the community could always download a verion of the developmental kernel 2.3, or one of the later 2.4 test to see what all the hoopla was about. Or, you could lay down $20 and buy a Linux Technology Preview from Caldera.

This was a great resource for many IT shops... they could now readily test Linux very easily, which was critical if they were not already running Linux. An NT sysadmin is not going to compile a kernel, but he or she might take an extra system and create a linux server from scratch.

Caldera bundled a complete distribution around the 2.4 test kernel and had it for sale. If you want to buy one, it is still for sale at LinuxCe ntral for $5.95.

Of course, Caldera was aware of the SMP capabilities in 2.4. Here's a snippet from the errata page:

    SMP hardware

    If you encounter problems with SMP hardware (typically, the system hangs when probing the floppy drive), please try again by removing the "nosmp" and "noapic" parameters from the boot parameters. When booting from the CD, you can edit the boot parameters by selecting the line that begins "kernel =" and pressing the letter "e". Then delete the "nosmp" and "noapic" parameters. Finally, press Enter, then type "b" to boot the system.

    You will also need to make these changes on the installed system. To do so, edit /boot/grub/menu.lst and delete the "nosmp" and "noapic" parameters.

You may have noticed how they are now using grub for booting instead of lilo, so similar workaround for SMP is implemented just like it was in earlier Calera Linux releases. (RedHat & Mandrake made the switch to grub around this time as well).

Did Caldera know about SMP in Linux? They tailored multiple releases to default to SMP capabilities with kernel 2.2, and they marketed the 2.4 test kernel for profit. I don't see how the newSCO can claim they didn't know...

[ Reply to This | # ]

SCO and "good faith"
Authored by: skidrash on Saturday, November 29 2003 @ 01:26 PM EST
SCO and "good faith"

There are those words again.

Coming from SCO.

Coming out of the one mouth in the world that has absolutely shown they do not
know their meaning,

coming within in a document that makes a mockery of them.

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents - blackligh
Authored by: Anonymous on Saturday, November 29 2003 @ 01:33 PM EST
If on Dec 5, IBM can directly link the code that the SCO Group is refusing to
produce with the allegations that the SCO Group is making and can establish with
the magistrate judge that the SCO Group is obstructing, IBM should be free to
move to have the charges against it dismissed with prejudice. That should pretty
much be the end of the effectiveness of the SCO Group's delaying strategy.

In a perhaps related dewveloment, Darl McBride has announced that the SCO Group
has found numerous IP infringements in Linux from other parties than IBM - This
tells me that the SCO Group is making preps for the eventuality of the failure
of its lawsuit against IBM. At the moment, I can only advise any end user who
gets sued by the SCO Group to tell the judge to require that the SCO Group
substantiate its allegations by successfully suing every one of its Unixware
licensees that contributed to Linux.

[ Reply to This | # ]

I think I see what they have in mind on #12
Authored by: Anonymous on Saturday, November 29 2003 @ 01:38 PM EST
Looks like SCO is waiting for IBM to send *all* source to *all* versions of AIX
and Dynix ("we can't tell you what infringes, because we don't know what
we own yet by way of what we intend to steal, via our contracts with IBM
combined with our unique read of contract law"). Whereupon, SCO will
declare *all* the code as theirs, as "derivatives".

Maybe IBM should send the code - one word to a page (a.k.a. "SCO
style"), numbered randomly using a PRNG released under GPL but copyright
IBM, to generate the sequence of paper scrap numbers. It would be every bit as
good as SCOldera's "evidence" to date, and it would come with a
secret decoder ring, which could keep Darl entertained for years ;-) Only give
the PRNG to SCO, using SCO rationale: "we can't show that PRNG to the
Linux community, because then they would be able to decode the papers. SCO
knows this and is trying to entrap IBM into accidentally disclosing SCO
"secrets", if any, and any are expressly denied and have not been
shown by SCO." Of course, if SCO hands out the PRNG to anybody, it's
covered by GPL, so we all get to read. Fun, huh?

Under this, if IBM gives them source, any of that material, whether originally
created by IBM or not, which made it into Linux, is "theirs" by
association. This really does look like the stunt they are trying to pull.

They appear to be out to steal IBMs code - every word.

It's the only "logical" conclusion, because surely SCO folks
aren't frauds, liars, thieves, idiots, and charlatans, right?

[ Reply to This | # ]

Once again TSG copies IBM.
Authored by: kbwojo on Saturday, November 29 2003 @ 01:41 PM EST
Well looks like TSG is trying to copy IBM again. In IBM's Addendum to
Memorandum in Support of IBM's 2nd Motion to Compel Discovery IBM did a side by
side comparison of what they and TSG has said. Well, TSG has just done the same
thing except instead of side by side they did a top and bottom comparison.

I wonder if IBM’s lawyers can now sue TSG’s lawyers for using their methods?

[ Reply to This | # ]

I'll bet the judge can't wait to get the lawyers into court
Authored by: Anonymous on Saturday, November 29 2003 @ 03:41 PM EST
Attached to this post is my fictional script for December 5th.

It is just for fun, and not even close to authentic, since I am not a lawyer,
and learned everything I know from the movies (so I apologize if I offend any
real lawyers :-).

Because it is just for fun, and quite long, I am attaching my script as a reply
to this post, rather than clutter up the front page. I hope you enjoy it.

[ Reply to This | # ]

SCO has never authorised...can make sense
Authored by: John Douglas on Saturday, November 29 2003 @ 04:24 PM EST
'SCO has never authorized, approved or knowingly released any part of the
subject code that contains or may contain its confidential and proprietary
information and/or trade secretes for inclusion in any Linux kernel or as part
of any Linux distribution.'

ScoLogically, therefore either:

1) all code released by Caldera does not contain its confidential and
proprietary information and/or trade secretes. Any methods etc in that release
is usable by anyone else under the terms of the GPL and software products must
be released back to OSS BUT because of prior agreements, IBM may not release it
back. This makes sense and SCO might technically have a case - unfortunately
there is no monetary damages involved.

However SCO has a theory that good software can only be produced by proprietary
firms and hence the larger the firm the more valuable the software. If I had
written spinlock.h, it would be worthless. If SCO did, it could be GPL'd as a
valuable contribution to society etc worth $. If IBM GPL'd, it would become
extremely valuable IP worth $$$. Obviously where Caldera and IBM contributed the
same 'things' (methods etc), SCO is entitled the $$ difference between the two
contributions. (This is a favoured theory since it explains why SCO is going for
BSD etc).

OR

2) SCO is not Caldera

Analysing past quotes, amazing as it may be, I'm rapidly coming to the
conclusion that Darl et al don't realise their past relationships. If you add
'SCO is not Caldera' to the available info, the arguements make more sense and
a lot of things seem clearer. Didn't SCO accuse IBM of encouraging others to
disseminate SCO's knowledge etc?

So logically SCO is after IBM for conspiracy with Caldera to sell SCO's
valuable IP before SCO bought Caldera.

John







---
As a Safety Critcal/Firmware Engineer, everything I do is automatically
incorrect until proven otherwise. (The one aspect of my work that my wife
understands).

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: Anonymous on Saturday, November 29 2003 @ 05:39 PM EST
As far as I can tell, this is their entire case:

1. IBM must have contributed code to Linux, because Linux on its own could not
have become an enterprise os.

2. Any code IBM contributed is in violation of the contract between it and
AT&T that we inherited.

That is it. If either 1 or 2 is wrong, they lose.

Like I started saying a few weeks ago, this could be over really soon.

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: gvc on Saturday, November 29 2003 @ 06:07 PM EST
SCO say in their response to IBM's discovery requests that the Linux code
containing the text "JFS", "SMP", etc. is infringing.
They distributed this code without restriction until recently, and continue to
distribute it to customers.

Yet they say in their motion to compel that they have never knowingly
distributed infringing code.

One of these statements is a lie.

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: Anonymous on Saturday, November 29 2003 @ 07:39 PM EST
Ok - I'm not a lawyer so would someone please enlighten me why a judge, by now,
wouldn't have just kicked this case out since it's pretty plain that SCO is
saying they can't tell IBM what they're accusing IBM of until IBM confesses?
It's a fishing expedition and I don't understand why a judge would waste all
this time with this.

[ Reply to This | # ]

OT M$ whining hehehehe
Authored by: brenda banks on Saturday, November 29 2003 @ 07:41 PM EST
http://www.varbusiness.com/sections/news/dailyarchives.asp?ArticleID=46268

---
br3n

[ Reply to This | # ]

Knowingly Released
Authored by: Anonymous on Saturday, November 29 2003 @ 09:41 PM EST
'SCO has never authorized, approved or knowingly released any part of the
subject code that contains or may contain its confidential and proprietary
information and/or trade secretes for inclusion in any Linux kernel or as part
of any Linux distribution.'

What exactly does this mean?

a) SCO (Caldera) are not aware of releasing any part of the disputed code in
their previous Linux products: therefore Linux is not tainted with SCO owned
code... we can all go home.

b) Caldera did release the disputed code but at the time it did not know that it
intended to go and acquire ownership of the UNIX codebase. SCO are saying that
they wouldnt have authorised the release of this code if they had realised that
it diluted the IP of a company / product they had yet to acqire.

c) Caldera did release this code (but without it's own authorisation, knowledge
and approval). The contested code is not really GPL'd because their entire
Linux product range was accidental. One morning they woke up and found to their
horror that they had been distributing Linux... eugh!

[ Reply to This | # ]

SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
Authored by: Anonymous on Saturday, November 29 2003 @ 11:35 PM EST
"With Tim Curry as Darl!"

[ Reply to This | # ]

Send them along...
Authored by: rand on Sunday, November 30 2003 @ 12:32 AM EST
(So if you find any materials showing that SCO nee Caldera knowingly released Linux with NUMA, JFS, or any of the four, send them along.)

I just came across the most amazing resource, the SCO/Caldera Knowlegebase.

SMP (this is only a sample of what's there):

  • How to enable SMP (multiple processor)support
  • What is patch 4924, the SCO Linux 4.0 SMP Kernel Oracle update?
  • What is patch 3364, the SCO Linux 4.0 SMP kernel security update?
  • "By default our kernel is compiled for SMP support"
  • What is patch 4643, the SCO Linux 4.0 k_smp kernel Update?
  • Getting sound working with the SoundBlaster Live(Yes, it mentions SMP support!)
  • SCOLINUX4:How can I create a Modules Floppy for the Promise IDE FastTrak100 LP/TX2/TX4 RAID Controller?
  • Caldera OpenLinux not seeing second processor
  • How do I use the CreativeLabs SB Live! drivers? "...this should work with SMP or non-SMP kernels."

    JFS (among others):

  • Which filesystems have support for ACLs on SCO Linux 4.0?
  • What are the fixes and features included in UnitedLinux 1.0 Service Pack 1?
  • What is patch 3362, the kernel source security update for SCO Linux 4.0?

    ---
    Dim gstrIANAL As String
    (Oh, Lord, get me off this project...)

    [ Reply to This | # ]

  • SCO's Supplemental Responses to IBM's 2nd Interrogatories and Requests for Documents
    Authored by: brenda banks on Sunday, November 30 2003 @ 12:43 PM EST
    is hatch appearing before this judge with heise and boies?
    has hatch been before the judge before?
    what kind of ruling did he get?
    how did he act during filings?
    is this things we can access?


    ---
    br3n

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )