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Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Friday, December 05 2003 @ 04:13 PM EST

The big news from the hearing today is that Judge Wells told SCO that they have to go first. They have to show IBM what code they are alleging is infringing. All during discovery, SCO has been telling IBM they had to show all their code first, and then SCO would identify the alleged infringements. IBM kept telling SCO in reply that they had the burden, as plaintiffs, to at least tell IBM what code was involved. Today the judge told SCO that IBM was right. SCO has 30 days to comply. IBM doesn't have to turn over anything until they do it. The judge's order will be filed Wednesday, and SCO has a month to show the code. They can't force IBM to go first. That dance is over.

Cody Hilton of Guru Labs , a Utah Linux training company, attended the hearing, and the second big piece of news is that David Boies didn't show up. Darl's brother represented SCO. His brother is Kevin McBride, the same person we noted who was involved in writing the Open Letter yesterday.

Why Boies didn't show up is hard to understand. And then again, maybe not. Brent Hatch was there and so was Darl. There was no media presence at all. Or more accurately, there was a lot of press there in the building but they were all there to cover the Olympic bribery trial , which got thrown out by the judge. Nobody in the courthouse was interested in talking to Darl today, according to my eyewitnesses, to the extent that they noticed, and they were looking.

Cody talked to him, though, after it was over. He asked him why he was there, and Darl said he just wanted to get a feel for it. Cody asked him what he thought about how it went, with IBM winning both motions. Darl said he expected it. Cody rode in the elevator with IBM's Marriott and asked him how he felt about how things went. Marriott said, "We're happy. Everything went as we'd planned. We're happy with the decision."

For IBM, it was David Marriott and Todd M. Shaughnessy. There were about 15 people there sitting in the gallery, including one woman, who rumor had it might be the patent attorney SCO hired and mentioned as possibly having a conflict of interest. But that is only a rumor.

The room was small, with maybe seats in the gallery for about 20 people, but no one was denied entrance. There were seats available.

Cody says that when the judge entered, she told them that it was her inclination to grant IBM's motions, and then she let both sides speak. First, SCO's Keven McBride spoke for about 40 minutes. The judge interrupted a few times and to Cody, it seemed like the presentation was hard to follow. Basically, he was arguing that IBM should hand over code first, so SCO could go over it and then categorize the violations as to whether they were copyright violations, trade secret, etc. Then Marriott spoke for IBM. He spoke for only 20 minutes. Cody described it as clear, crisp, easy to follow, easy to understand. He cited a case, Xerox Corp. v. International Business Machines Corp., he believes, which you can find mentioned here, in footnote 3 of IBM's Memorandum in Opposition to SCO's Motion to Compel Discovery, where the judge ruled like this:

"[3] See also Xerox Corp. v. International Business Machines Corp., 64 F.R.D. 367, 371 (S.D.N.Y., 1974) ('[Plaintiff] should be able to identify in detail the trade secrets and confidential information alleged to have been misappropriated by [defendant]. Clearly until this is done, neither the court nor the parties can know, with any degree of certainty, whether discovery is relevant or not; and it is doubtful whether [plaintiff] can undertake a meaningful discovery program'.)"

The hearing lasted an hour and a half.

Frank Sorenson was there too and he also reports similarly:

"Judge Wells came into the courtroom, and announced that she had read all the filings and the relevant case law, and it was her intention to grant IBM's Motions and postpone any further Discovery until this matter was cleared up. SCO was then given a chance to try to convince her otherwise. Kevin McBride (who turns out to be Darl's brother) argued for SCO, and pretty much rambled for maybe 40 minutes.

"David Marriott then argued for IBM, and did a way better job, and did it all in 15-20 minutes!

"A little more back and forth, and Judge Wells ruled. IBM will prepare an order before next Wednesday, and SCO will get 30 days after that to satisfy interrogatories 1, 2, 4, 12, and 13. A follow-up hearing is set for January 23rd."

Here are Cody's notes so far. He cautions that his notes are a summary of what occurred in the courtroom from his perspective. There are gaps and some truncated dialog, as happens when you are scribbling as fast as you can. We will have more from Frank shortly and a complete transcript eventually. Here are the court minutes.

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

Judge: Intention is to grant IBM's motion to compel delivery (interrogatives 12 and 13) . Plaintiff to file responses within 30 days. Postpone discovery until compliance achieved. There is a protective order in place.

K. McBride: Would like to put motion on hold until specific discovery is covered.

Judge: There is a circular pattern going on in discovery.

K. McBride: Wants to convince the Judge that specific discovery should be entered. This case is basically about infringement. There needs to be a clear definition of what source code infringes on Copyright law, trade secret law, and contract violations. Cites case of Sun vs. Microsoft where Microsoft misappropriated derivative works. Microsoft made changes to Java. This is about the derivative works. SCO acknowledges that IBM owns the derivative works but there is a contact in place on what can be done with it.

Continues with an explanation of Unix. Describes Unix and the preferred OS for large corporations. Unix was licensed to large software vendors like IBM and HP. The license stipulated what the software could be used for. SCO needs to know what IBM put into Linux whether it violated Copyright, trade secret or confidential information. SCO needs to see source code, development methods, developer notes related to the Unix derivative AIX.

Linux is undermining Unix, and SCO does not know what it is IBM contributed into Linux. What IBM has indicated to the public is they have contributed to Linux and SCO wants to know what it is they are referring to.

Judge: SCO has also made comments in public about what SCO would show in court. The idea is to prove why/why not compel discovery

K. McBride: We will comply with interrogatives 12 and 13 if the Court wishes but would like to focus on interrogatives 1,2,4. SCO wants all development notes, source code, etc on AIX then they can compare and see what the violations are.

Judge: Reference to a case with Utah Medical Products and another with Lukadia (Sp). Something about knowing what is relevant to future discovery.

K. McBride: SCO has to distinguish what code violations is part of copyright, contract, or trade secret law. Has to see what IBM has included. Will be filing a copyright infringement case in a few weeks.

Continues on with a characterization of Unix-Ware,Unix on Intel. Explanation of the Monterrey project and the sharing of SCO technology with IBM for Unix on Linux OS.

Judge: Has SCO shown what secrets were stolen?

Marriott: Has not.

[begins his turn] I will show that 1. Information about Operating Systems and source code 2. Why Judge's preliminary decision is correct 3. Shortcomings of SCO's discovery.

Points out that Plaintiff has distributed Linux for a long time. States that the crux of argument is in paragraph 101 of the case. Marriott hands out two books one book is thick (800+ pages) and the other is thinner (300+ pages). The thick book is print out of a file from the 2.5 Linux. The thin book is a print out from a file from AIX. Using the books he says that IBM has been accused of taking code from the small private book and putting it into the large public book, but won't say what code is in question. SCO has so far just handed IBM the small book and said the volitions are in there.

Citing a Xerox case an one other the burden of proof is places on the Plaintiff. SCO has not identified specifically on Unix file in question. Nor have they identified one single file in Linux that is in question. SCO has been touting the existence of evidence but has not shown any. SCO executives have repeatedly said in the media there is evidence of violations but IBM has not seen the evidence.

SCO has not even shown IBM the apparent evidence SCO has shown to the rest of the world under NDA. SCO is even going after other companies that use Linux. SCO is accusing Linux users of violations when they haven't even shown IBM what the Linux violations are.

K. McBride: SCO must see the AIX derivative works to clarify what law applies to the violations. The evidence that SCO executives are talking about is contributions of SysV code to Linux by SGI. IBM has put Dynix code and derivative code into Linux and SCO wants to see it. SCO has produced 100 more CDs than IBM has during discovery. SCO wants IBM to produce all Dynix and AIX code to derive evidence.

Marriott: IBM can produce the Dynix code and did so as of yesterday. IBM can also produce the derivative code, but IBM will not, unless compelled to, provide all 40 million lines of AIX code.

K. McBride: We want all 40 million lines of code. We will give it to our experts so they can digest it.

Marriott: Because Linux is open to the public you can go on to the Internet to any number of sites and look up the offending code.

Judge: The initial order is appropriate. Will grant IBM motion to compel both interrogatives 12 and 13. SCO must file response in 30 days. SCO must file affidavit if they cannot respond. SCO is to correct deficiencies in affidavit filed 11/4/2003. Does Mr. K. McBride want IBM to indicate which files they want from SCO?

Marriott: We want what SCO has said 5 months ago they were going to give us. There is nothing new here on what we need.

Judge: All discovery will be postponed until SCO has responded to IBM. Next hearing 1/23/2004 at 10:00 is all motions are addressed. Will not rule on SCO' s motions. Will address them in January if SCO has completed motions

K. McBride: Can we have that date put on hold if we need more time.

Judge: I will hold you to the 30 days but the hearing date can be changed.

UPDATE:

Here is Frank Sorenson's report, and it's as close to a transcript as we can have until the actual transcript is available from the court. They take a week. Then should give it to us. We'd have it done in a day. The best quotation: David Marriott, the attorney for IBM: "We don't think they had any evidence at the time they filed the case and we don't think they have any evidence now." This report greatly clarifies details of what the case is about. Note, for example, SCO says the trade secrets issues they have stem only from Project Moneterey. Here is Frank's report, first his introduction and then the blow-by-blow:

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

This write-up is the combined result of the notes of Evan McNabb and Frank and Elizabeth Sorenson. We also got some notes and a chart from Mark Belnap, and Stuart Jansen helped in typing everything up. We have requested a transcript, but the court reporter said it may take a week or so before it will be available (we'll get it the same time that the lawyers do). We wrote down everything we could, and have attempted to give a general play-by-play of what happened during the hearing. Most of the wording is approximate, but when in quotes, we're pretty sure we got it word-for-word. Stuff in brackets either gives a description of what is happening or the gist of what someone said.

Judge Wells has a very small courtroom, and can accommodate approximately 20 people in the audience. About 15 people were present in the audience, including the court security officer. Before the hearing began, members of the audience chatted a little, and realized that most of us were local Linux users (vim won the quick-poll).

The SCO lawyers came in at about 9:50, and sat at the Defendant's table (left). Judge Wells' Courtroom Deputy asked them to move to the correct table (right). SCO's attorneys were Kevin McBride (Darl McBride's brother) and Brent Hatch (who wore a light suit and Christmas bowtie). Darl McBride (who arrived just before the door was closed) sat immediately behind them with another attorney (we think) whose name we missed. He had no bodyguards (unless that was who we thought was the lawyer).

IBM's lawyers appeared at about 9:57, and David Marriott and Todd Shaughnessy sat at the table. Amy Sorenson [no relation] was also present, but sat on the back row of the courtroom.

As each party entered, they checked in with the courtroom deputy, Amy Pehrson, who also asked who would be speaking for each side. Kevin McBride spoke for SCO, and David Marriott spoke for IBM. Also present was some sort of intern or assistant to Judge Wells (She jokingly referred to him as the brains), and she also made sure that he had copies of all the documents. There was a court reporter present, and she was nice and friendly, and helped us figure out how to get a transcript. At 10am, the deputy asked if everyone was present from both parties (yes), then went into Judge Wells' chambers. She emerged shortly, commanded "All rise!", and the judge came in.


Judge: I have reviewed all of the memorandums, including the most recent filings, and am up to date. [Note: We stopped by the Court Clerk's office on the way out for copies of the most recent filings, and the file was in Judge Wells' chambers--she really was up-to-date. ] After reviewing everything, my intention for the day is to grant IBM's motion, and to require SCO to file responses within 30 days, or to require SCO to file affidavits as to why they couldn't respond. IBM's responses should correct deficiencies to the 11/4 Addendum to include Interrogatories 12 & 13. I'd like to postpone any other discovery until this has been done. [Checked with both attorneys to make sure there was a protective order in place.] I am willing to hear arguments from both sides for or against proposed intention. [Asked who wanted to go first.]

K. McBride: [Offers to start.]

Marriot: [Agrees.]

K. McBride: May I have a few minutes to convince you otherwise? Because the issues are complex, and we want to suggest a more appropriate path, put the motion on hold until a specific discovery is produced.

Judge: It appears that "what is happening is somewhat circular." Seems to be failure to confer under rule 37. [Note: Rule 37 says you have made good faith efforts to obtain complete responses to the interrogatories without court action, but have been unable to do so.] We can't get off the ground until we get started.

K. McBride: What really should happen is specific discovery should be identified and then we will reply with our discovery. The case at the fundamental level is infringement. We need a clear definition of "what source code is at issue" before discussing types of infringement. "This is a complex case, your honor." [NOTE: He pointed out a number of times that this was a complex case. In case any of us missed it the first and second times.] There was some contract disputes, some copyright disputes, and some of neither. This is the frontier of interaction between copyright and contract law. [Cited Sun v. Microsoft, 1999 in 9th circuit court handed out copy of material related to case.] "Some paragraphs are worth reading." Microsoft made changes and distributed Java. The case is about interaction of copyright and contract law. [ Pulled out big chart and asked for permission to display it. Mark Belnap later copied this chart down, and we have tried to recreate it here]

Judge: "If you can find a place to put it, go for it." [Invited IBM to come behind the bench to see chart if necessary.] "My court room is spatially challenged."

K. McBride: [Gives small copies of chart to IBM lawyers]

K. McBride: I will give a background of licensing issues between the two companies. This case "involves the genesis of computer software for large corporations." All corporations use Unix at the Fortune 1000 level and have used it for over 20 years. AT&T started Unix and licensed multiple parties to modify it. SCO acquired all the rights to Unix. "SCO is in the shoes of AT&T." IBM had a special license, but Sequent had a standard license. There was a scope clause in the license limiting what you could use the software for. You could use it and modify it, provided it was treated as part of the original software product. IBM is obligated to maintain some kind of confidentiality under some kind of law, whether copyright, contract, or trade secrets. [NOTE: The level of specificity is McBride's, not ours.] Do we have a copyright case? A trade secret case? [NOTE: somewhat rhetorical] They can't step out of making money with it. "You can't use your stuff in violation of our license." We have no problem saying that AIX is IBM's, they just can't use it in violation of our contract. [NOTE: he did specifically state several times that they acknowledge that AIX belongs to IBM]

We need to identify first all this stuff IBM put into Linux. We know that IBM gave away source code, development methods, and sequences into Linux. "We don't have issue with the non-infringing part of Linux." "We're not making it up new." IBM did contribute stuff to Linux, "we just don't know what it is." Linux is undermining the entire Unix operating system market. We know IBM contributed stuff because they boasted about their contributions in the press.

Judge: "It isn't just IBM making public statements is it?" My concern is, I want to focus back on the question of motion to compel.

K. McBride: I'll hurry up. [Starts reading IBM quotes so fast the court reporter had to ask him to slow down. Quotes IBM about donating to Linux and making it as strong as Linux.] We're happy to live with what they've said and what we've said. Specifically addresses interrogatories 12 and 13. IBM's interrogatory 12 is not a part of the case to us, but if they court wants us to, we'll do it. For IBM's interrogatories 1, 2, and 4, we need IBM to produce all versions and developer notes for AIX. Then we can compare and make very clear specification about what contributions and what kinds. Staying discovery would do tremendous injustice and keep us from explaining to the court what's what and why.

Judge: So, tell me why [she mentions two particular cases IBM brought up in their Memoranda ] don't apply to this case. These cases say that the burden of proof is on the plaintiff. What is relevant to future discovery? "None of us know!"

K. McBride: Neither of these cases address our specific facts. We won't know what is trade secrets and what is contract and what is copyright until we see IBM's discovery. We will file a second amended complaint regarding copyrights within the week.

Our trade secrets claims come from the joint development starting in 1997 time frame, Project Monterey. [History of RISC and Intel platforms, no one was focusing on Intel except SCO, who spent 16 months making Unix work on Intel.] IBM was left out in the cold without an operating system they could sell as Intel chips got big. In Project Monterey, we we gave them our stuff, trade secrets stuff, and they did Linux at the same time secretly, and then stepped out of Monterey and used our stuff. We've given everything to them, all of our knowledge and trade secrets. They have the code.

Judge: What about the pages in non-machine-readable format?

K. McBride: We gave them all our source code.

Judge: But did you give it to them in 100,000's of pages of unusable text?

K. McBride: "You have to have discovery of the universe" and then we can figure stuff out.

Judge: [Turns the time over to IBM's attorneys]

D. Marriott: I will cover three issues: 1) operating system and source code background; 2) what is at issue, proposed ruling is great; 3) some examples of shortcomings of SCO Group's Responses to Interrogatories.

Without software, a computer is a lump of metal. You take source code, put it through a compiler, get out 1's and 0's. [Gives the judge, assistant, and SCO's attorneys a booklet with all of his supplementary material for his arguments.] One of the pages shows an example of source code, comments in red and code in black. "Unix is a family of operating systems." Linux is also an operating system. Only Linux is developed publicly, as a "massive collaborative exercise". [explains Linux development process, and shows diagram from book--we think it is the diagram Linus and Andrew Morton presented here, and which was discussed here on Groklaw.]

Show [from the book] an example email submission to Linux by an employee of SCO. SCO began in 1994 as a Linux distributor, contributed to Linux. The Crux of SCO's case is paragraph 101 [in book--we think he is referring to SCO's amended complaint].

[Holds up 2 books, one with about 200 pages in it and the other with about 500 pages. Gives copies to Judge, assistant, and SCO. McBride jokes as he gets his copy, "Is this AIX you're finally producing?"] The little book represents Unix source code, the large book represents a single file of Linux source code. They are claiming that we took some of this [little book] and put it in this [big book]. [Talked for a bit about the 2 books (each book represents a chapter of a larger book, which represents a single version of Linux or Unix). He compares sizes, subtley pointing out how silly the claim sounds. Pointed out that SCO still has not said what parts of small book IBM supposedly put in which parts of big book.] We don't even know what book [version], chapter, or file of Unix we're talking about. We don't know what book [version], chapter, or file of Linux we're talking about. [He mentions that the physical book he's holding up (the bigger, Linux book) actually contains the printout of a single file from a single version of Linux.] This file has 31597 lines, and comes from Linux 2.5.69 [include/asm-ia64/sn/sn2/shub_mmr.h fits this description].

In order to file the complaint, SCO had to have what they say they have. Case law says a party may not dump information on a party and expect them to extract relevant information. Actually, many cases that say that. We moved to compel after waiting 4 months, then got some supplemental responses that are still inadequate. There are 14,548 chapters [files] in Unix, millions of lines of code, and we don't know which lines they say we misappropriated.

It is not just IBM that has a problem with this. They are also accusing Linux users. This is like stopping someone walking out of Barnes and Noble who just bought a Linux book and saying, that book holds our stuff, now you have to pay us in order to keep the book.

[Talks about how SCO has shown stuff to other people under an NDA. ] "We shouldn't need an NDA. We have a protective order."

The only case that SCO quotes actually doesn't contradict our case examples. It is a copyright case which, as of now, SCO hasn't accused us of yet.

"We don't think they had any evidence at the time they filed the case and we don't think they have any evidence now." "No reasonable person could conclude that SCO has" stated their claims with specificity.

K. McBride: "There is no trade secret in Unix System 5. Copyright yes." "There are trade secrets in UnixWare... that was given to IBM in the joint development project."

"Confidential information is not a trade secret."

These are the most recent CD's produced from both us and IBM [holds up 2 CD-R's ]. Ours is numbered 122, and theirs is only numbered 21. I guess we just got 22 and 23 today, but we've produced 100 more CDs than they have. IBM should be ordered to give us AIX and Dynix, then we can make more concrete allegations after 30 days.

Marriott: We have agreed to give AIX and Dynix, just not every iteration. That would be 40 million pages.

K. McBride: "We want the 40 million pages!"

Judge: "And you will digest them by Sunday?"

K. McBride: We have expert analysts who can go through it [they want 30 days to go over the code].

D. Marriott: [closing remarks] Linux is an open development model, and Her Honor can go online and see it being developed at any time.

Judge: Okay, this is my ruling, it is essential to get the ball rolling. My initial ruling stands. At this time, I will grant IBM's Motion to Compel both sets of interrogatories. IBM is to add Interrorgatories 12 and 13 to the listed deficiencies. SCO will have 30 days after the ruling is recorded to comply. If they can't in good faith, they should file affidavits as to why they cannot.

IBM should correct the deficiences in their addendum filed Nov 4th [to add interrogatories 12 & 13]. [Marriott needs to get the complete list of missing/incomplete stuff to McBride.] All other discovery is postponed. By Wednesday of next week, IBM should submit the order, then SCO has 30 days, and then let's have a hearing about 2 weeks after that, around mid January.

[discussing of timing, etc. Judge was willing to give more time, after the 30 days was up for briefings, but not more than 30 days to comply. Hearing set for 23 January at 10am] Address remaining motions of SCO's with the assumption that SCO has completed discovery with the required specificity. She is not ruling on SCO's motion at this time.


Some notes: Our general feeling is that McBride was choppy, chaotic, and random in his speaking. It felt like he was running a filibuster. IBM was direct and to the point in everything they said and did. They were prepared every time that the judge asked them a question and appeared to be right on top of everything that was going on. SCO presented exhibits to the court that were copied and stapled. IBM's exhibits and other documents had simple comb bindings and looked more professional.

When McBride was speaking, he wandered around the courtroom and seemed to be talking off the top of his head. Marriott stood at the lectern and seemed to be working from well-prepared notes that he had practiced. We enjoyed listening to his arguments.

Judge Wells seemed to have little patience for the filibuster She stated that the proceedings needed to conclude before noon (probably lunchtime!), but with both sides having a chance to state their case. She interrupted McBride several times to help focus him back on the point of the hearing. She was very fair and direct. She gave McBride every chance to convince her that she should not grant IBM's motions. She brought up several points that weren't directly addressed during arguments, indicating that she had read and absorbed the material, and noticed some of SCO's antics. She especially did not seem impressed about handing over the code on paper, rather than in a useable format. McBride remarked that he believed they had resolved that problem.

After the hearing, Darl turned around and recognized Evan from the protest. Darl said that he wasn't surprised about what happened, but it was what they had expected. We later shook hands with the IBM lawyers. They "like to keep up with what's going on" [partially referring to Groklaw].


  


Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT | 657 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: rand on Friday, December 05 2003 @ 05:18 PM EST
K. McBride: Can we have that date put on hold if we need more time.
Judge: I will hold you to the 30 days but the hearing date can be changed.

Oooo...ya got 30 days, not ifs ands or buts. (The other people in the office
are getting suspicious. I've been laughing out loud all day!)


---
IANAL, etc.

[ Reply to This | # ]

WTF??
Authored by: Anonymous on Friday, December 05 2003 @ 05:18 PM EST
Is Kevin a lawyer?

[ Reply to This | # ]

  • WTF?? - Authored by: Anonymous on Friday, December 05 2003 @ 05:56 PM EST
  • WTF?? - Authored by: danb35 on Friday, December 05 2003 @ 06:30 PM EST
    • Kevi McBride - Authored by: Anonymous on Friday, December 05 2003 @ 06:38 PM EST
    • WTF?? - Authored by: Anonymous on Friday, December 05 2003 @ 07:34 PM EST
    • Ambulance Chaser... - Authored by: Anonymous on Friday, December 05 2003 @ 10:45 PM EST
    • Kevin's BV rating - Authored by: Anonymous on Saturday, December 06 2003 @ 02:50 PM EST
  • WTF?? - Authored by: Bill The Cat on Friday, December 05 2003 @ 06:40 PM EST
    • WTF?? - Authored by: Anonymous on Friday, December 05 2003 @ 11:19 PM EST
    • WTF?? - Authored by: photocrimes on Saturday, December 06 2003 @ 10:17 AM EST
  • WTF?? - Authored by: surak on Friday, December 05 2003 @ 11:25 PM EST
    • WTF?? - Authored by: mdchaney on Friday, December 05 2003 @ 11:31 PM EST
      • WTF?? - Authored by: Anonymous on Saturday, December 06 2003 @ 01:43 AM EST
      • WTF?? - Authored by: Anonymous on Saturday, December 06 2003 @ 05:16 AM EST
        • WTF?? - Authored by: jaydee on Saturday, December 06 2003 @ 07:09 AM EST
        • WTF?? - Authored by: surak on Saturday, December 06 2003 @ 08:52 AM EST
      • WTF?? - Authored by: Anonymous on Saturday, December 06 2003 @ 04:23 PM EST
        • WTF?? - Authored by: mdchaney on Sunday, December 07 2003 @ 02:12 AM EST
    • WTF?? - Authored by: Waterman on Saturday, December 06 2003 @ 01:03 AM EST
Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: cybervegan on Friday, December 05 2003 @ 05:19 PM EST
Yessssss!

What we all hoped for.

I've been reading Groklaw (and links from it) all night,
and uncovered some pretty interesting and deep stuff, but
this new trounces everything else!

And Groklaw helped to do it. Maybe Liberty and Justice
aren't so elusive after all.

Well, I reckon that's the first hurdle jumped, and with
flying colours, too!

-cybervegan



---
Stand and fight we do consider
Reminded of an inner pact between us
That's seen as we go
And ride there
In motion
To fields in debts of honor
Defending

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: mac586 on Friday, December 05 2003 @ 05:20 PM EST
Hats off to Frank,Cody, and PJ. Many thanks for sharing the truthful turn of
events, this December 5, 2003.

[ Reply to This | # ]

SCO doesn't know ..?
Authored by: Anonymous on Friday, December 05 2003 @ 05:20 PM EST
SCO does not know what it is IBM contributed into Linux.

Say what? How come they start the case in the first place if they don't know of any infringement? Weird, and now it's on record.

MeThinks IBM folks will have a much more relaxed Christmas than the SCO's...

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: Anonymous on Friday, December 05 2003 @ 05:26 PM EST
My prediction:

SCO will wait until the end of the time period, and the appeal this ruling to
the trial judge. Appealing magistrate judge rulings is usually a bad idea (you
better have a DAMN good reason or the trial judge will just get pissed off) but
SCO is already losing the tactical side of the case quite badly - they probably
will just want to put off any stock-devistating news (like dismissal of most of
their case) for as many weeks as they can.

{IANAL}

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: BsAtHome on Friday, December 05 2003 @ 05:27 PM EST
And the next motion from IBM will likely be a motion to dismiss, after IBM has
traced the submitted snippets to publically accessible code. Maybe they even add
a few copyright infringements to their own lawsuit when it shows that SCO has
mispropriated Linux' or other's code. That'll be a day:-)

BS


---
SCOop of the day, Groklaw Rulez

[ Reply to This | # ]

Movement on Pacer
Authored by: rand on Friday, December 05 2003 @ 05:31 PM EST
It looks like someone just requested all the Motion to Compel documents. Maybe
the news media are finally taking notice AND doing research.

---
IANAL, etc.

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: anwaya on Friday, December 05 2003 @ 05:33 PM EST
Cody, Frank, PJ - you all rock. Thank you.

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: Anonymous on Friday, December 05 2003 @ 05:33 PM EST
I'm worried about the "we want all 40 million lines of code" part
... doesn't that open up IBM to a potential leak of important, highly valuable
intellectual property? With SCO being as unstable as it is, I think there is a
high chance that SCO, if they receive the "40 million lines" of AIX
code, steal a couple of million lines, without anyone noticing (since SCO is
such an opaque organisation ... noboby knows what's going on inside). Stealing
ideas is even easier ... they just need programmers to take a look, and hide low
for a few years after the case. They they can re-emerge in Russia, or some
other country and start SCO II, with the ingenuity that IBM dreamed up over 50
years of history in computing.

How is Discovery Material handled after the case? Are they destroyed, sealed,
and how does this enforced?

[ Reply to This | # ]

Why Boies wasn't there
Authored by: Anonymous on Friday, December 05 2003 @ 05:43 PM EST

According to this, McBride said SCO expected to lose these motions... that's why Boies wasn't there. Boies is the public face of SCO's legal activities. SCO doesn't want headlines saying "Boies Loses First Round in Fight Against IBM", so they had a staffer go and make some token effort. If SCO ends up having to make a public statement about the rulings, Boies will say that he wasn't there, can't comment on the details, and that SCO isn't worried.

[ Reply to This | # ]

eMail columnists. SCO is getting the weight of the coverage.
Authored by: fdstone on Friday, December 05 2003 @ 05:45 PM EST
I believe it would be of use to email columnists for the more mainstream,
popular online publications, and perhaps other publications and news outlets,
including TV, as well. What I'm seeing is consistent publication of what SCO
says and does with little of the counterbalance of how things are seen by this
community.

Perhaps include the transcript of today's hearing.



[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: jam on Friday, December 05 2003 @ 05:46 PM EST
What I'm curious about is that this seems to indicate a response to IBM's
second motion to compell, but doesn't say much about IBM's first motion,
compelling discovery for the first set of questions (1,2, 4, etc, if I remember
correctly)

So, does SCO have to provide adequate responses to all of IBM's questions in a
month, or just 12 and 13? Not that it matters that much--12 and 13 would be a
good start, but as IBM has argued, they're different questions, and are
relevant for different reasons.

Anyway, so it looks like the timeline is now:
Dec 10 - IBM writes order for SCO to comply with
Jan 9 - Responses due by SCO
Jan 23 - Oral arguments to continue discussion

(I assume those are the dates, as Jan 9 is 30 days after the 10, and then the
oral arguments two weeks later also makes sense...)

[ Reply to This | # ]

Media picking up the story
Authored by: sam on Friday, December 05 2003 @ 05:49 PM EST
Check this out:

http://www.newsforge.com/business/03/12/05/2136248.shtml?tid=20&tid=85

Quoting Groklaw as breaking the news first.....and me.

I'm flattered.

[ Reply to This | # ]

Judge acknowledges public commets of SCO
Authored by: Anonymous on Friday, December 05 2003 @ 05:53 PM EST
The most interesting part to me is the judge mentions SCO's
public commentary. There FUD campaign may haunt them in
court...

[ Reply to This | # ]

Whose IP is it, anyway?
Authored by: crythias on Friday, December 05 2003 @ 05:55 PM EST
Marriott: Because Linux is open to the public you can go on to the Internet to any number of sites and look up the offending code.
Heck, you can even check your own (SCO's) FTP sites!

Please, someone tell me, how in the world does SCO have any ownership of what IBM has done in house with their own programmers? In short, what does SCO own? And if they own xxx, why don't they have their own copies of the source of what they own?

[ Reply to This | # ]

PJ - Can we get Grokster T-shirts
Authored by: sam on Friday, December 05 2003 @ 05:56 PM EST
Can we get Grokster T-shirts before the next hearing. Then they'll know who's
who there.

The Mcbride boys were seemingly stunned that there were "any"
observers in the courtroom. Darl literally lurked out in the hallway until the
last minute. They knew they were in enemy territory.

[ Reply to This | # ]

SCO Strategy ?
Authored by: Anonymous on Friday, December 05 2003 @ 05:57 PM EST
Given that SCO's objective appears to be to stay in litigation as long as
possible (for whatever motive).

I would expect them to continue this case as long as possible, but abandon it
before it gets dismissed. Through a reasonable spin on the abandonment for PR
purposes. Shortly after or before abandonment, start another suite and repeat.
The potential targets are numerous (IBM, HP, RedHat jumped the gun, Novelle
...). Changing jurisdictions might also help them extend this. I would also
expect them to make some rather noisy appeals.

I'm sure it is coincidental, but the timing of these suits is perfect for
Microsoft in retaining marketshare. I would love this to be settled quickly,
and for SCO to confirm that Linux has free and clear title to all code and that
the GPL is valid. The time required gives the market to Microsoft for the next
10 years. Fighting each fire that SCO starts also gives the market to
Microsoft. The only way out that I can think of is to nullify these cases in
the minds of the market, or rapidly nullify SCO. In the best of worlds, keeping
the cases, but eliminating the market impact would be ideal.

The only way can think of eliminating the market impact is to reverse rolls.
Someone needs to sue SCO $3B for GPL violations, putting them in the negative
spotlight. At the same time, Linux needs some big marketing.

Just a thought.

NibbleAbit

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: Hygrocybe on Friday, December 05 2003 @ 06:11 PM EST
Greatest news since sliced bread was invented - even if it is only one more
step. There is one quote from Cody's notes that intrigues me:

Linux is undermining Unix, and SCO does not know what it is IBM contributed into
Linux.

Am I right in my understanding that this means that SCO has has the incredible
gall to inform the court in essence that: "IBM has stolen our code but we
don't know what it is"

If so, this whole exercise is then beginning to look like a case for stock
exchange authorities interested in a massive pump and dump scheme, not contract
or copyright law at all.



---
Lamington Nat Park

[ Reply to This | # ]

What is the right term?
Authored by: Anonymous on Friday, December 05 2003 @ 06:18 PM EST
What is the right term for what we are doing here? OpenLawyering? Well,
actually not really lawyering. But its open, its fun, and it works great.
OpenResearch maybe? Suggestions?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: Anonymous on Friday, December 05 2003 @ 06:25 PM EST
Will not rule on SCO' s motions. Will address them in January if SCO has completed motions"

This is so great. SCO's case is paralyzed until it hands over the data analysis information. And we know it doesn't want to do that, which means that that data analysis information (if it ever did one) is going to be a total disaster for SCO.

Either they don't hand it over and IBM moves for dismissal, or they do hand it over and reveal what a weak case they have, and IBM moves for dismissal. This is the beginning of the end.

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: Anonymous on Friday, December 05 2003 @ 06:30 PM EST
Did cody notice any bodyguards? What with this being a public outing for Darl?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: jrw on Friday, December 05 2003 @ 06:36 PM EST
"But Y'Onour, We've produced loads more CDs than they have! We want
some from them!! Not Fair!!!"

Can somebody give me an insight into how precisely judges cope with this kind of
rubbish? How do you sit there and maintain a level of professional neutrality
(as judge Wells does most admirably by this account) when you and everyone
around you knows damn well that the miserable slimey little you know what is
just trying to avoid the point?

How do you avoid saying to them: "Look, it's just not hard. Tell us all
what the *&*! you're complaining about so we can get this all over and done
with, or get the £$%! out of my courtroom." Clearly a judge can't say
such things, and neither can the other side's lawyers. But how do they resist?
(And what would happen if they succumbed to temptation?)

I'll try to put this down again (before the wife kills me).
Again: have a good weekend all (and try to get some sleep (you know who I
mean!))

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First
Authored by: N. on Friday, December 05 2003 @ 06:39 PM EST
Points out that Plaintiff has distributed Linux for a long time. States that the crux of argument is in paragraph 101 of the case. Marriott hands out two books one book is thick (800+ pages) and the other is thinner (300+ pages). The thick book is print out of a file from the 2.5 Linux. The thin book is a print out from a file from AIX. Using the books he says that IBM has been accused of taking code from the small private book and putting it into the large public book, but won't say what code is in question. SCO has so far just handed IBM the small book and said the volitions are in there.

Inspired way of actually showing the problem in a nutshell.

N.

---
N.
(Recent convert to Linux)

[ Reply to This | # ]

PJ and moonshine Moglen
Authored by: gumout on Friday, December 05 2003 @ 06:50 PM EST
Our lovely and gracious PJ has been over at Linux Weekly News
a drinkin' and cavortin' with Eben Moglen. Moglen claims (wishfully I suppose
) that the GPL is not a contract. PJ quotes Moglen:

"A defendant cannot simultaneously assert that the GPL is valid permission
for his distribution and also assert that it is not a valid copyright license,
which is why defendants do not 'challenge' the GPL." --- Eben Moglen

This statement is moonshine nonsense. Ever hear of THE SCO GROUP, INC., v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, D.CT. UTAH(2003)?
The SCO Group is asserting just such a claim. So much for defendants never
challenging the GPL. The fact that SCO's claims are totally without merit in no
way relieves the the Court from the duty of examining the terms of the GPL to
reach this almost inevitable conclusion.

When the Court examines this SCO claim, do you think the Judge will instantly
reach for a copy of the Federal Copyright Act? The Copyright Act provides for
original authors an exclusive right to license their work and prescribes damages
for infringement. The Copyright Act is absolutely silent about the manner in
which an author may license his work.

When the judge examines the General Public License he will think to himself
"aha, I see a promise from an author of a copyrighted work not to sue a
person who agrees to distribute the work in accordance with the author's
specific terms. I see that the author states that distribution on the author's
terms is the only valid way to accept this promise not to sue."

The judge will then reach for contract authority such as The (Second)
Restatement of Contracts and say to himself "this fits

'§45. OPTION CONTRACT CREATED BY PART PERFORMANCE OR TENDER

(1) Where an offer invites an offeree to accept by rendering a performance and
does not invite a promissory acceptance, an option contract is created when the
offeree begins the invited performance or tenders a beginning of it.

(2) The offeror's duty of performance under any option contract so created is
conditional on completion or tender of the invited performance in accordance
with the terms of the offer.

Comments: a. Offer limited to acceptance by performance only. This Section is
limited to cases where the offer does not invite a promissory acceptance. Such
an offer has often been referred to as an "offer for a unilateral
contract" .'

so even if it's entitled a "unilateral license" or renamed a
"unilateral grant of permission" or called a "General Public
License" it is within its four corners an option contract... also known as
a "unilateral contract".

The Court will look to see if the GPL is (or is not) a valid unilateral contract
license and if SCO has (or does not have) valid permission through acceptance of
the GPL offer. The Judge will look at the promise the GPL makes not to sue a
distributor and whether SCO accepted the terms imposed for that promise when
they distributed (the works). He will analyze this promise in light of the
applicable part of contract law that relates to unilateral contracts.

The Court's analysis of promise and acceptance of terms will be conducted in
light of prevailing contract law not the Federal Copyright Act.

If the Court determines the GPL is a valid unilateral contract (it certainly
is), the Court will next determine whether SCO complied with the unilateral
contract acceptance terms (they didn't).

If SCO did not properly accept the offer not to sue THEN AND ONLY THEN (maybe)
the Court will apply the Federal Copyright Act to determine infringement
damages.

The following work:
www.idea.piercelaw.edu/articles/33/33_2/p225.Jones.pdf
is sprinkled with reference to copyright license law as well as patent license
law and demonstrates how thorny IP law issues may become.

If you believe the GPL can't be attacked under contract law you're in for a
surprise. This is not to say the GPL is not valid (I believe it is solidly
rooted in contract and copyright law), only that it's analysis is not an open
and shut case solely under copyright law.



---
I hate to say I told you so... but I told you so.

[ Reply to This | # ]

parent -- cut, pasted, and html'd
Authored by: Anonymous on Friday, December 05 2003 @ 06:53 PM EST
K. McBride: Can we have that date put on hold if we need more time.

Judge: I will hold you to the 30 days but the hearing date can be changed.
Praise the bald-headed baby Jesus!! Paraphrase: "Look, show us why you're here. Stop playing games and quit delaying."

My prayers have been answered.

[ Reply to This | # ]

The obligations of SCO..
Authored by: jcurious on Friday, December 05 2003 @ 07:01 PM EST
INTERROGATORY NO. 1:

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.

INTERROGATORY NO. 2:

For each alleged trade secret of any confidential or proprietary information
identified in response to interrogatory No. 1, please identify: (a) all persons
who have or have had rights to the alleged trade secret or confidential or
proprietary information; (b) the nature and source of the rights; and (c) all
efforts by any persons to maintain the secrecy or confidentiality of the alleged
trade secrets and any confidential or proprietary information.

INTERROGATORY NO. 4:

For each alleged trade secret and any confidential or proprietary information
identified in response to Interrogatory No. 1, please describe, in detail, each
instance in which plaintiff alleges or contends that IBM misappropriated or
misused the alleged trade secret or confidential or proprietary information,
including but not limited to: (a) the date of the alleged misuse or
misappropriation; (b) all persons involved in any way in the alleged misuse or
misappropriation; (c) the specific manner in which IBM is alleged to have
engaged in misuse or misappropriation; and (d) with respect to any code or
method plaintiff alleges or contends that IBM misappropriated or misused, the
location of each portion of such code or method in any product, such as AIX, in
Linux, in open source, or in the public domain.



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.

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).

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: pooky on Friday, December 05 2003 @ 07:18 PM EST
<p><i>The SCO chief added that there had been a couple of dozen
viewings of the "offending code" showing up inside Linux, and that
attitudes were changing as a result of SCO's evidence. </p>
<p>"[When] people who have legitimate businesses and legitimate
intellectual property which they want to protect see our code [they] shake their
heads and say 'We can't believe IBM is doing this'. So we are already seeing
the public opinion start to turn," he said. </p>
<p>When asked whether SCO had plans to sue any other company in the near
future, McBride said: "Right now we are very focused on IBM. </p>
<p>"It's not that there is a shortage of companies that are in
violation, but we are not trying to announce a litigation path. For now we are
trying to get things resolved with IBM."</i></p>
<p>
Link to this is on http://www.vnunet.com/News/1141848</p>
<p>This is a quote from “the SCO Chief”. Seems the person in this article
who saw SCO’s code was told indirectly by SCO that IBM contributed at least some
of it. So where does SCO get off saying that “we don’t know what IBM
contributed”? They must have some idea to have brought this suit in the 1st
place!</p>
-pooky



---
SCO FUD = Faux SCUD?

[ Reply to This | # ]

Audio transcripts
Authored by: Anonymous on Friday, December 05 2003 @ 07:19 PM EST
As I understand frome before, the transcripts are public records, so once
someone pays for their production, they can be put up on a website... but we
have to wait a week or so. My question is, is it legal to take your own tape
recorder?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: leb on Friday, December 05 2003 @ 07:20 PM EST
I was there. It was really fun. My favorite quote from the judge, after K.
McBride said he wanted the 40 million pages of code:

"And you will digest them by Sunday?" She sounded so amazed that he
would ask for all of that to go through.

And my favorite quote by Marriott:

"We don't think they had any evidence at the time they filed the case and
we don't think they have any evidence now."

It is nice to know what IBM thinks of the case.

[ Reply to This | # ]

OT but . . .
Authored by: Anonymous on Friday, December 05 2003 @ 07:24 PM EST
Key to SCOX's arguments is the idea that Linux couldn't be legit because it's
just too good to have been hacked together by what they perceive as hippy
do-gooders. It seems like the brutal efficiency of Groklaw (hat's off to P.J.,
and all y'all too) serves to some extent to DEMONSTRATE the power of Linux
style endevors and the potential of the internet (wow, I can't believe I
actually typed "potential of the internet" in 2003!). There are
obvious parallels between the methods of Linux/FOSS software development and
Groklaw (we all want something, other people want the same thing, the internet
facilitates us all working together to achieve that thing . . . I'm sure we all
see how it works).

I wonder if Groklaw is showing lawyers (and judges) what OSS coders have known
for a long time . . . this method WORKS!

It seems like Groklaw might be helpful as an example of the awesome power of a
bunch of people simply not being a**-h***s and working together that a judge can
more easily understand than alot of eye-glazing coder examples.

[ Reply to This | # ]

  • Nah... - Authored by: John Goodwin on Friday, December 05 2003 @ 07:47 PM EST
  • OT but . . . - Authored by: Anonymous on Friday, December 05 2003 @ 07:55 PM EST
  • OT but . . . - Authored by: Anonymous on Saturday, December 06 2003 @ 02:13 AM EST
New SCO Counterclaim....
Authored by: John Douglas on Friday, December 05 2003 @ 07:27 PM EST
K. McBride: Neither of these cases address our specific facts. We won't know what is trade secrets and what is contract and what is copyright until we see IBM's discovery. We will file a second amended complaint regarding copyrights within the week. SCO expected to be defeated so have this up there sleeve. Aims: a) pro-SCO press-release to counter defeat b)keep stock up c) provide excuses for pre-trial delay d) how long will the trial take checking 40 million pages of documents! My thanks to all who provided the case coverage, which I waited up for!

---
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 | # ]

Why was there no media?
Authored by: Anonymous on Friday, December 05 2003 @ 07:30 PM EST
From everything I have read from sam & others who were there, there was
(apparently)no media covering the event, even though they HAD been just down the
hall covering the Olympics case earlier. I would have thought that a $3 billion
dollar lawsuit to decide the future of computing would have attracted *some*
attention.

Are we all just geeks?

[ Reply to This | # ]

"Duces Tecrum" Explained
Authored by: Tsu Dho Nimh on Friday, December 05 2003 @ 07:36 PM EST
IBM sent "Duces Tecrum" subpoenas to several parties - by
coincidence, I blundered into one at work today - her'es basically what they
look like:

Plaintiff,
vs.
Defendants.

TO: [subpoenad person]
YOU ARE HEREBY ORDERED to appear at ________ on the _____ day of ,
2003, at the place of the courtroom of the Honorable [judge name], [address],
[Court division], [location], and to remain there until excused by the Judge
conducting the proceeding, to give testimony on behalf of [whoever got the
subpoena] and to bring with you:
[list the stuff you need]

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Scriptwriter on Friday, December 05 2003 @ 07:46 PM EST
vim won the quick poll

Okay, this is definite authentication of a geek crowd. :)

---
The clock is ticking, SCO. January 9th. Tick. Tock. Tick. Tock.

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: AdamBaker on Friday, December 05 2003 @ 08:26 PM EST
Someone else said this in a nested comment but I thought it should be said at
the top level.

Darl admitted that he expected to lose.

You file motions to dismiss that you expect to lose because you just might get
lucky but you don't fail to provide discovery to the extent you get a motion to
compel that you expect to lose. If you've got any evidence then you'd present
it rather than upset the judge. Even though this hearing was only in front of
the magistrate judge it isn't going to improve SCOs standng with Judge
Kimball.

The admission they made that IBM owns AIX is also going to make it almost
impossible for them to make a copyright case against IBM which IBM cant get
instantly dismissed.

I believe even a dismissal of part of their case would harm their stock badly as
it would point out that the whole case is a lot shakier than SCO claim.

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Glenn on Friday, December 05 2003 @ 08:28 PM EST
Okay, now SCO is saying that the trade secrets came from Unixware not Sys V
Unix, via Project Monterrey. So why do they need Aix or Dynix source code
(except maybe to try to get a few pointers on how to develop an enterprise
capable system). If the supposed infringement came from Unixware, surely they
have copies of Unixware source code somewhere. Hopefully they will not have to
get it from a third party.
Another interesting note is that Darl said that they expected that ruling. Is
that a tacit admission that SCOG executives know they do not have a case?

Glenn

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Hygrocybe on Friday, December 05 2003 @ 08:38 PM EST
I wonder:
1. SCO cannot comply and prove its case
2. Case thrown out
3. IBM continues and then destroys SCO
4. IBM picks up UNIX
5. IBM puts UNIX under GPL
6. Microsoft can only then use this code if it adheres to the GPL

It's only speculation but............how delicious.

---
Lamington Nat Park

[ Reply to This | # ]

SCO really steps in it this time, admits they dont have a case
Authored by: Beyonder on Friday, December 05 2003 @ 08:42 PM EST
omg they are so insane it's not funny. SCO admits they have no case, admits
they have no evidence, admits they can't produce anything, tries to continue
stalling, and generally steps in it several times. oy vey.

My favorite quotes from this are as follows (did anyone else catch these, seems
like it!)-

K. McBride: What really should happen is specific discovery should be identified
and then we will reply with our discovery. The case at the fundamental level is
infringement. We need a clear definition of "what source code is at
issue" before discussing types of infringement.

omg, they don't even know what source code is at issue. Augh! The judge should
have smacked them right then and there.

#2- K. McBride: Neither of these cases address our specific facts. We won't
know what is trade secrets and what is contract and what is copyright until we
see IBM's discovery. We will file a second amended complaint regarding
copyrights within the week.

uhmmm... seems SCO is still confused over the differences between copyright,
trade secret, patent, and confidential information. Seems they don't have the
slightest clue. Oh yes, and once again they admit they filed suit without the
slightest idea of what was supposedly infringing...

#3- a bit longer exchange this time:
>K. McBride: "You have to have discovery of the universe" and
then we can figure stuff out.
>Marriott: We have agreed to give AIX and Dynix, just not every iteration.
That would be 40 million pages.
>K. McBride: "We want the 40 million pages!"
Judge: "And you will digest them by Sunday?"
>K. McBride: We have expert analysts who can go through it [they want 30 days
to go over the code].
>D. Marriott: [closing remarks] Linux is an open development model, and Her
Honor can go online and see it being developed at any time.

who are these elusive "expert analysts" ? The guys who wrote the
grep scripts? (falls off chair laughing hysterically). Once again they prove
they have no evidence, they want all the code so they can comb through it and
HOPE to find something that just might infringe.

The best they could hope for even in a perfect world, is they find a set of code
(maybe a few lines at most) that wasn't supposed to get included, but isn't
theirs either. At least they'd use it as a press release to pump stock, again.
But it'll turn out it's just BSD code with copyrights removed, like all the
other stuff they've been bantering about.

Of course, IBM knows this already, they're not stupid (and neither is the
opensource/linux/gnu/gpl movement). I'd be willing to bet anyone $50 that IBM
has already gone through their code, the history of development, etc etc. Purely
for "in-house" purposes and to double-check everything. IBM doesn't
pin winning a lawsuit for such a large sum without at least doing what we like
to call "due diligence", SCO has never heard of that term yet
though, unfortuneately for SCO.

Let's face it, IBM wouldn't be in the middle of this unless they were sure
about the history, what's in the code, etc. Of course, no one knows everything,
and the court proceedings today seem to indicate they rely on Groklaw (kudos
PJ!) for some stuff, and the rest of the opensource community for filling in the
blanks, and they are a heck of a lot more reliant on those sources than anything
SCO drudges up. ie: IBM would probably take at face value what D. Ritchie and
Kernigan say about the history of the code, rather than some unnameable source
SCO produces. Yes, of course, IBM would do due diligence even in that situation,
but they wouldn't need to do much.

"Yeah, Ritchie wrote that code back in the 70s, it's been published in
books several times, it became public domain, and other stuff got branded with
the BSD license, oh yes, and it's been used as study material for computer
science students for decades. Do we really need to do deep research on this one?
Oh yes, almost forgot, the code isn't in Linux any more, because it was so
badly written it should've been replaced a long time ago, not that it
matters..."

Y'know that Simpsons(tm) MP3 of Homer saying "DOH!" something like
50 times in a row? Someone should make sure SCO has a copy, because that's
about what it's going to be like for them when this gets shut down in about a
month.

and yes, SCO, it is going to end in 30 days (roughly), the light is coming in at
the end of the tunnel, it's the legal freight-train bearing down on you, and
oops, too late...

[ Reply to This | # ]

What is protective order about?
Authored by: Thomas Frayne on Friday, December 05 2003 @ 08:44 PM EST
"Judge: Intention is to grant IBM's motion to compel delivery
(interrogatives 12 and 13) . Plaintiff to file responses within 30 days.
Postpone discovery until compliance achieved. There is a protective order in
place."

What is the protective order about?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Friday, December 05 2003 @ 08:51 PM EST
> SCO has been touting the existence of
> evidence but has not shown any.

That just about says it *all*.

[ Reply to This | # ]

Derivative Works and "Special Licences"
Authored by: hbo on Friday, December 05 2003 @ 09:02 PM EST
IBM had a special license, but Sequent had a standard license. There was a scope clause in the license limiting what you could use the software for. You could use it and modify it, provided it was treated as part of the original software product.
Along with the news that SCO isn't claiming trade secret rights in SysV, but will file copyright claims instead, I view the above quote as the most significant thing SCO said during this hearing. "IBM had a special license, but Sequent had a standard license." We've seen evidence that IBM had side agreements that modified the original license in such a way as to allow them to do anything they wished with "derivative works." Here we see SCO claiming that Sequent did not have such a rider. This confirms what I've suspected all along. They are looking to hang the bulk of this case on the contributions by Sequent, not IBM. They want all the source to AIX and Dynix so they can prove that this or that bundle of code is a "derivative" work of Unix System V.

IANECTBAL (I am not even close to being a lawyer), so I need to ask: is this credible? Would IBM's acquisition of Sequent mean that alleged past violations of the SysV license by Sequent are now covered under IBM's license?

It's also clear why they want all IBM's source code. They want to try and trace the development process of anything that subsequently got contributed to Linux, to try and prove that it constitutes a derivative work. And, by the way, anything else they find would just be considered a windfall.

The ruling is of course a clear victory for IBM, but we may be seeing the true outlines of SCO's case emerge, even before they comply with the judge's order.

---
"Even if you are on the right track, you'll get run over if you just sit there" - Will Rogers

[ Reply to This | # ]

Hit the Tips Jar Button Please?
Authored by: blhseawa on Friday, December 05 2003 @ 09:03 PM EST
Hey Groklawer's,

Let's all make an effort to help PJ out.

She has put a lot of effort into to this site (blog).

It is the least we geek's can do!

So, Right now, move the cursor over to the "PayPal DONATE" button
*NOW*. Don't wait do it now! With 1/2 million hits even a dollar adds up. So
come on guys and gals, HIT THAT BUTTON!

PJ thanks again. You've made my Christmas.

Sam, Cody, et al, special thanks for the effort.

The law really does work!

Regards,

blhseawa

[ Reply to This | # ]

professional binders
Authored by: Anonymous on Friday, December 05 2003 @ 09:09 PM EST
We all know how important professional binders are:

Calvin: Oh, like I'm going to learn about bats and THEN write a report? Give
me a break!
Calvin: Bats are bugs.
Hobbes; All we have is one 'fact' you made up.
Calvin: Besides, I've got a secret weapon that will GUARANTEE me a good
grade! No teacher can resist THIS! A clear plastic binder! Pretty professional
looking, eh?
Hobbes: I don't want co-author credit on this, OK? (Hobbes' statement)
<http://www.anuragjain.com/chgems.html>

[ Reply to This | # ]

Some questions
Authored by: Khym Chanur on Friday, December 05 2003 @ 09:17 PM EST
First, among the things the judge ordered SCO to do was to re-submit the code
SCO had already submitted to IBM, but in a useful form, right?

Second, SCO said their reasons for requesting all iterations of AIX were because
of public statements made by IBM. This would imply it's also the main (or
sole) basis for their suit. Why didn't IBM or the judge make note of this?
Because the judge isn't the trail judge, and can only deal with discovery
issues? Or is that actually enough of a legal basis for SCO's lawsuit?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: whoever57 on Friday, December 05 2003 @ 09:20 PM EST
Judge: Okay, this is my ruling, it is essential to get the ball rolling. My initial ruling stands. ...... SCO will have 30 days after the ruling is recorded to comply. If they can't in good faith, they should file affidavits as to why they cannot.


Uh, I think I can guess which of those 2 alternatives (comply, or file an affadvoit) SCO will choose.

---
-----
For a few laughs, see "Simon's Comic Online Source" at http://scosource.com/index.html

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Alex on Friday, December 05 2003 @ 09:48 PM EST


Hey Darl!! Did Ross Perot make your chart?

Alex

---
"If Darl McBride was in charge, he'd probably make marriage
unconstitutional too, since clearly it de-emphasizes the commercial nature of
normal human interacti

[ Reply to This | # ]

Nice Chart
Authored by: Anonymous on Friday, December 05 2003 @ 10:03 PM EST
That's the funniest, most absurd "illustration" I've ever seen in my life. I'm, like, busting a gut here trying to figure out how that's supposed to clarify anything! "Don't pay any attention to the man behind the curtain!"

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: jmichel on Friday, December 05 2003 @ 10:04 PM EST
We need to identify first all this stuff IBM put into Linux. K. McBride:
.."We know that IBM gave away source code, development methods, and
sequences into Linux. "We don't have issue with the non-infringing part
of Linux." "We're not making it up new." IBM did contribute
stuff to Linux, "we just don't know what it is." Linux is
undermining the entire Unix operating system market. We know IBM contributed
stuff because they boasted about their contributions in the press."

Judge: "It isn't just IBM making public statements is it?" My
concern is, I want to focus back on the question of motion to compel.

I absolutely love this judge. She is just all over McBride through this whole
thing, even while maintaining objectiveness in her statements and steering them
back to the issue at hand.

John

[ Reply to This | # ]

My worst fears are coming true!
Authored by: Anonymous on Friday, December 05 2003 @ 10:06 PM EST
McBride: We want all 40 million lines of code. We will give it to our experts so they can digest it.
Marriott: Because Linux is open to the public you can go on to the Internet to any number of sites and look up the offending code.

The case IS about SCO wishing to see a source code of Linux. Now that IBM has pointed were to look for it, maybe they will stop?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Friday, December 05 2003 @ 10:08 PM EST
So Darl says he knew they were going to lose today, and they sent a third string
lawyer because they knew they couldn't win. Sounds like SCO knew beforehand
that its arguments were a bunch of junk. Any maybe their whole case

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Friday, December 05 2003 @ 10:22 PM EST
Actually, this is all tactical play by SCO I think, after reading the details of
the court hearing. Why? Let's see...

1. SCO provides 'supposéd' proof to the judge on the next hearing date
(either a few lines of code in total, or nothing). SCO has met their discovery
obligations.

2. NOW - IBM *must* fulfill their discovery obligations, and this means
providing *all* of the AIX/Dynix code to SCO for them to analyse. The judge
*may* have rights to dismiss case based on point 1. but in all fairness should
allow point 2. above to proceed to ensure that the case is fair and unbiaised.
This should limit ability to appeal by complainent.

Now - SCO might lose this case based on evidence, but by then they'll have the
AIX source code, and ample time to go thru and 'fish' out ANY issues. What
will they do then? Take legal action against IBM for copyright/trade secret/IP
infringements (via a separate case). I'm not an American, so i'm not totally
sure on limitations on discovery items that have to be produced. But you can
imagine what would happen if SCO has the AIX source code...there'll be legal
actions for the next 30 years, on separate items...

Then note there's appeals. This could be likea 12 round boxing fight, this is
just round one. When that's lost you proceed to the next round. You may lose
in the end, but you may score a knockout from round 2 onwards, you can't tell.
So you milk the thing by going the distance.

I've played a lot of chess in my life, and this seems like a very carefully
crafted move by SCO. That said, i'm pretty positive that SCO is just a poppet
for Microsoft and that Microsoft is the real driver behind this case. Microsoft
has everything to win by this sort of FUD. Especially since a case like this
could potentially last an awful long time, and every year that it lasts will
decrease the likelyhood of takeup of Linux due to uncertainty on legal matters.
It would be cheaper for Microsoft to keep continually funding legal action
against Linux and kill it that way, than to compete on either cost of product or
reliability/security etc. If the FUD is successful, then companies/businesses
won't use Linux (and this is where it's making inroads). If businesses don't
make inroads into using Linux then Linux distributions will go bust due to lack
of income. Redhat and others have already admitted that there's no money (or
very little) to be made out of Linux in the desktop market at this point of
time. So this means that very few companies will distribute Linux cos they
simply can't make much money out of it. They'll pursue other business
activities. This is the crux of the issue - development of Linux will continue,
but it'll be a very home patched thing with very little support from the
Industry. It'll lose popularity and usage will diminish over time. This is
irrespective of Linux' merits as an excellent operating system in many
respects.

There are other issues as well:

1. What about shells? This is a very Unix thing and SCO may argue that they
are derived from Unix and IP infringement etc (hence Microsoft paying SCO a fee
to continue to use DOS which is a cheap rip off of a Unix command line terminal
as we all know).

2. X. XFree86 is a open source implementation of X. The original X could
possibly be seen as a derivative of Unix, and therefore owned by SCO. That
would make Xfree86 a possible IP infringer. I'm not sure if the at&t case
vs berkely looked at X or shells etc...so how appropriate my line of thought is
i'm not sure.

Any ideas PJ or anyone else?

Imagine how hard it would be to push Linux if we couldn't use current shells,
and X. And it would be hard to make another window environment that wouldn't
possibly be considered a derivative of X, and therefore infringing. So, no gui
for Linux.

I'm being very longsighted here when i'm thinking about all of this. Darl and
Co. are up to something. He's too wily to make a *uckup like this. A good
poker player never shows their full hand.

Dave

[ Reply to This | # ]

My favorite part... DId SCO lawyer lie to the judge?
Authored by: Anonymous on Friday, December 05 2003 @ 10:44 PM EST
Here is my favorite quote from the SCO lawyers.

"Our trade secrets claims come from the joint development starting in 1997
time frame, Project Monterey. [History of RISC and Intel platforms, no one was
focusing on Intel except SCO, who spent 16 months making Unix work on
Intel.]"
[end quote]

I always thought that others were working on UNIX on Intel a long time before
SCO. LONG before 1997 (as SCO lawyer appeared to have said).

Here, is evidence that counters SCO's mis-leading the judge quotes - from
OSI's SCO vs IBM postion paper found at:
http://www.opensource.org/sco-vs-ibm.html
In section titled:
"SCO/Caldera inflates its importance as an Intel Unix vendor" found
at:
http://www.opensource.org/sco-vs-ibm.html#inflates

"In paragraph 32 SCO/Caldera writes “Most of the primary UNIX vendors
identified above did not attempt to develop a UNIX “flavor” to operate on an
Intel-based processor chip set.”

This is at least more accurate than paragraph 23 of their original complaint,
which read as follows: “Except for SCO, none of the primary UNIX vendors ever
developed a UNIX ‘flavor’ to operate on an Intel-based processor chip set.”

The old version was flat-out false; the new is merely misleading. Sun
Microsystems is a primary Unix vendor by anyone's definition, and their Solaris
operating system was ported to the Intel 386 and sold on that platform. IBM's
AIX was also ported to the 386 in 1987 and sold until 1995[34].

Both versions of the complaint misleadingly imply that Unix was not generally
available on PCs other than from old SCO. But, in fact, AT&T Unix was ported
to Intel chips by no fewer than six different software houses — and that's not
counting “own brand” ports maintained by PC hardware vendors such as Dell.

Up to 1994, when Linux made them irrelevant, the principal author maintained an
on-line product comparison listing of all Intel Unixes known to him. The list of
vendors from the final archival version [35] reads, in part:

Univel UnixWare Release 4.2
Consensys System V Release 4.2
UHC UnixWare Release 4.2
ESIX System V Release 4.0.4.1
Micro Station Technology SVr4 UNIX
Microport System V Release 4.0 version 4
UHC Version 4.0.3.6
SCO Open Desktop 3.0
BSD/386 1.0
NEXTSTEP 3.1
Yggdrasil Linux/GNU/X
Soft Landing Software

The author personally ran two of these — Microport and Yggdrasil — and a third
not listed, which was the Dell own-brand port.

As far back as 1983, old SCO had already had serious competition in the 386 Unix
market from Interactive Systems Corporation (later bought by Sun Microsystems).

Not only was old SCO far from unique as an Intel Unix vendor, but SMP Unix
implementations date as far back as 1985. The Sequent Corporation produced
machines[36] featuring 2 to 30 80386 processors at that date. These machines ran
DYNIX, a variant of Berkeley Unix.

Better yet, consider the following quote from a 1991 old SCO press release[37]
(emphasis added):

For the benefit of the entire user base, as well as the industry as a whole,
SCO encourages all UNIX System vendors for Intel processors to join SCO, USL,
Intel, ISC and OSF in supporting the iBCS-2 standard for x86 applications.

SCO's claim to have been unique in supporting Unix for PCs is therefore not
merely false, it is a deliberate and egregious lie — not rendered less
mendacious by the weasel-word ‘primary’ in its complaint."
[end quote]
------------------------------------------------
Hmmmm,
Questions:

If the above is correct then was SCO lying to the judge?

Or did they say this intentionally to get IBM to bring it up at some future
time... so, that they can use something from it to prove their UNIX ownership of
INTEL derivitive rights, etc?

Innocent mistake, intentional misleading of judge, or tactic?

-----------------------------------------------

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Friday, December 05 2003 @ 10:52 PM EST
I'm writing this with the legal knowledge afforded to me through taking
business law in college, and watching too many lawyer movies BUT! isn't SCO
asking IBM to show them the offending code first against the constitution?
(looking back to history class as a kid - the 5th ammendment re: not having to
incriminate ones self)

I may be wrong, but with the nonsense SCO has used to try to get IBM to smear
egg on their own face I'm surprised that the judge hasn't thrown this out
already.

Glad to see things going the way they are. IBM comes across as well prepared,
and well spoken. SCO seems to come across with less tact than Joe Pesci's
character in My Cousin Vinny.

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: docolczyk on Friday, December 05 2003 @ 11:08 PM EST
Think someone can get this ( with opinions /evidence /arguments
removed ) I think she would be quite suprised how quickly information can get
passed around.

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Friday, December 05 2003 @ 11:36 PM EST
Marriott: Because Linux is open to the public you can go on to
the Internet to any number of sites and look up the offending
code.

K. McBride: [his hand slaps his forehead] Duh, why didn't we
think of that?!

[ Reply to This | # ]

Motive?
Authored by: carlos on Saturday, December 06 2003 @ 12:09 AM EST
I have been following this SCO's antics since it the beginning of the mess.
The one thing that keeps poking at me is: What is SCO's (or McBride's) motive?
You just do not file a 3 billion dollar lawsuit without a motive.

When looking at a SCO related newsgroup (I forget which one), one of the posters
claimed to have spoken to a SCO insider. The insider claims that SCO genuinely
believes they have been wronged and UNIX code has been placed inside Linux. If
this is true, then the evidence (or lack thereof) indicates incompetence in
SCO's ability to carry out this lawsuit any sort of professional manner.

But what if SCO management is not incompetent? These delays are obviously done
with some sort of motive. Greed is the number one motive. Get those four
consecutive quarter's numbers up for the stockholders and walk away with the
big bonus. I am not a business type person, but I believe we are in that fourth
quarter now and it looks like it will be profitable for SCO stockholders. If
this is the motive, why go after IBM in such a haphazard manner? Surely they
knew that bulldog would bite back.

Is SCO management incompetent, is there an ace up their sleeve, is there an
opportunistic M$ gambit involved, is this a business version of a "Hail
Mary football play", or is this sophisticated, open source entertainment?


If SCO managment thinks it has an ace up their sleeve, what in the world could
it be? Did McBride get hold of some peyote and have visions of SCO's stock
"shooting to the moon"?

I just want to pick people's brains about SCO's motivations.

carlos

[ Reply to This | # ]

Kevin McBride - Brother-kin
Authored by: JMonroy on Saturday, December 06 2003 @ 12:18 AM EST
I think one can draw from today's events that Kevin McBride may have had a hand in originating this lawsuit.

I think Darl one day asked his dear brother to come by the office to review some "historic" contracts. With visions of dancing century notes in his head, and a real lack of objectivity, Kevin probably had a pre-disposition for finding something damaging. Without even performing a rigidly thorough code analysis, he convinced brother Darl that their case was terra firma.

As their case publicly unraveled, their disconnected claims became even more irrational. This seems to fall in line with the McBride performance today. Irrational, disconnected and ultimately irrelevant (meaning, a losing effort all the way around).

Yes, I think we have more here than meets the eye. I think we just found out who the "dumber" part of the "dumb and dumber" duo.

---
if (!sco_wincase) { die("SCO"); } else { die("SCO"); }

[ Reply to This | # ]

Boies a "no show"...
Authored by: George_Wa_State on Saturday, December 06 2003 @ 12:39 AM EST
Why should he show up?
He knew the outcome.
And his being there would not change a thing.
Judge would have made the same decission.
So you send a flunkie, throw him a crumb
and make him feel good because you "know" that he can
get the job done.
Then he looks the fool. And you still have a little bit
of creditability left. Very little. But still.
Besides, there are golf courses to shoot and martinies
to be shaken, not stired

George

[ Reply to This | # ]

CNET now has article on today's action
Authored by: LinuxGuy03 on Saturday, December 06 2003 @ 12:45 AM EST
"Judge orders SCO to show Linux infringement" http://news.com.com/2100-7344- 5114689.html

[ Reply to This | # ]

The Microsoft Defense
Authored by: Anonymous on Saturday, December 06 2003 @ 01:33 AM EST

SCO doesn't appear to be making proper use of the
Microsoft Defense. The judge barely batted an eye at the
obvious attempts to try her patience. They will need to
increase their flippant disregard for truth, logic and the
law in order to push this judge over the edge and win on
appeal.

[ Reply to This | # ]

Kernel vs. Operating System
Authored by: BWCarver on Saturday, December 06 2003 @ 01:34 AM EST
Question to someone who was there: Did IBM's attorney, Marriott, refer to the "Linux Operating System" as the updated transcript reflects?

It's a niggling detail, but I think in such a complex matter it would be best to make it clear that Linux is a "kernel" and that what many call the "Linux Operating System" is really the Linux kernel PLUS a ton of other stuff that makes up the whole O/S. It's certainly more convenient to pass over such details, but this case is going to hinge on lots of tiny details, so it's best to develop a habit for meticulous care from the start.

---
Like Digital Freedoms? Donate to EFF before they're gone.

[ Reply to This | # ]

News to Red Hat
Authored by: Nick Bridge on Saturday, December 06 2003 @ 01:48 AM EST
SCO's motion to dismiss Red Hat's declaratory judgement suit was based, in part, on the grounds of "subject matter jurisdiction" - to wit SCO has no copyright claim with IBM
Red Hat's Complaint suffers from the same infirmities found by the court in Bonterra America to preclude subject matter jurisdiction. There are no allegations that SCO has contacted Red Hat and informed it that its product violates SCO's copyrights. Nor has SCO done so. There are no allegations that SCO has conveyed to Red Hat either expressly or implicitly that it intends to sue Red Hat to enforce its copyrights. Nor has SCO done so. There are no allegations that SCO has sued any other entity for infringement. - Nor has SCO done so.
I guess they just announced that they will!

Of course, IBM is not a Linux distributor...

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 02:05 AM EST
What is a protective order?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: 1penguin on Saturday, December 06 2003 @ 02:31 AM EST
Apparently sanity has prevailed. Also, great work... enjoy the research,
commentary, and reporting.

---
John

[ Reply to This | # ]

Some Questions about Kevin McBride
Authored by: mikeca on Saturday, December 06 2003 @ 02:50 AM EST
There is a Kevin G McBride who is a partner at Jones Day in Los Angles. See
http://www1.jonesday.com/attorneys/bio.asp?language=English&AttorneyID=12258

He specializes in Intellectual Property law, litigation and IP licensing.

Is this Darl McBride's brother who presented SCO’s oral arguments in court?

From the web page description he looks well qualified to be representing SCO in
this case, but I am wondering, with all the money and stock that SCO is paying
to the Boies law firm, why did SCO have Kevin McBride present the oral arguments
for SCO? Is this normal to bring in a lawyer from a different firm to present
oral arguments?

I can understand why Boies did not show up to argue the motion, but did Darl
feel that his brother Kevin would be so much better than the lawyers from the
Boies firm that he wanted him to present the oral arguments? Or was Darl just
trying to do his brother a favor and give him a little business and some PR?

[ Reply to This | # ]

Confidential information or Trade Secret?
Authored by: amcguinn on Saturday, December 06 2003 @ 04:17 AM EST
Quoting from the story:
K. McBride: "There is no trade secret in Unix System 5. Copyright yes." "There are trade secrets in UnixWare... that was given to IBM in the joint development project." "Confidential information is not a trade secret."
We've looked at trade secret law previously, and what you need to do to make a breach of trade secret claim stick -- You have to say what the secret was that was breached, and show that it really was a secret, etc. etc. A link was around before to an article from The Intellectual Property and Technology Law Journal

K. McBride here seems to be saying that the code IBM put into AIX is not a trade secret as such, but that IBM is contractually required to keep it confidential anyway.

However, the Utah code already quoted to us by PJ says:

(4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
In other words, if SCO claims IBM was required to keep certain things confidential, then SCO is making a trade secret claim, subject to the existing case law concerning trade secrets, whether SCO chooses to call it "Trade Secret" or not.

Can anyone say, is my understanding here correct?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 04:26 AM EST
The story thus far...

[SCO] Wolf! Wolf!

[IBM] Where?

[SCO] I won't tell you where, because then you'll destroy it. Wolf!

[IBM] WHERE???

[SCO] All will be revealed in court. Wolf!

.... many months later, after tedious foot-dragging in court...

[IBM] Judge, please order SCO to show us evidence - ANY EVIDENCE - that there is
a wolf on the loose.
They haven't shown as much as a single hair!

[SCO] Have!

[IBM] Haven't! All they gave us was a map of the whole forest, and a statement
that the wolf is in there somewhere.
Judge, please...

[Judge] SCO, you have 30 days to show *all* your evidence that there is a wolf
on the loose.

[SCO] Aww! Can't we have longer?
And we wanna list of all the wolves IBM has ever seen. And what they looked
like. It might be one of them.

[Judge] No. You have 30 days to show *your* evidence. No more.

[SCO] OK. By the way, in a few days time we shall be lodging a claim that we saw
another, completely different wolf on the loose.

*****

... Stay tuned next week for another exciting episode, called:
"The SCO who cried 'Wolf' for the second time"

[ Reply to This | # ]

Important, and OT: Funny
Authored by: Anonymous on Saturday, December 06 2003 @ 04:59 AM EST
1. The SCO Group, which is preparing a legal challenge of the open-source
movement, said Friday it has postponed its quarterly earnings report by two
weeks

http://www.internetwk.com/breakingNews/showArticle.jhtml?articleID=16600216

This could be important, as it could indicate a problem with auditing their
annual accounts. If they have to restate revenues for past quarters (because
they overstated them to boost the stock price), except a rapid collapse.


2. Kevin McBride?

Do you think he's doing that for free?

Why use Darl's brother, when SCO has just arranged to pay Boies' firm MILLIONS
and MILLIONS.

Answer: Now we know how McBride's family



3. Plain funny - paper is okay according to Stowell!

http://news.com.com/2100-7344-5114689.html

"Knowing full well that IBM would need its source code in electronic form
so that proper analyses--such as those SCO itself claims to have
performed--could be conducted, SCO instead produced the source code on one
million sheets of paper," IBM said in the motion. "The only reason
for SCO's production of code on paper was, we believe, to stall the progress of
these proceedings while giving the (false) impression of being forthcoming in
its discovery responses."

In response to IBM's complaint, Stowell said, "If a company wants code,
it's the other party's decision to provide that any way they feel like
providing that."

[ Reply to This | # ]

SCO logic
Authored by: Newsome on Saturday, December 06 2003 @ 05:00 AM EST
I've been trying all day to figure out SCO's logic. During Kevin McBride's
argument, I kept having "So what?" moments ("we used to have
the market, but we don't any more" from SCO -> "So what?"
from everyone else). It was very difficult just to try to follow his convoluted
logic, and it was even more difficult to see how it should result in legal
action. Here's what I think he was saying [note: attempted SCO logic]:

1. IBM has contributed "stuff" to Linux.
2. They weren't supposed to contribute "stuff" that ever appeared
in Unix, AIX, or Dynix.
3. Every contribution to Linux was improper, and is a violation of something.
It might be a copyright violation. It might be a contract violation. It might
be a confidentiality agreement violation. It might be some other sort of IP
violation. We just don't know which one yet.
4. We need every IBM contribution to Linux.
5. We need every version (not just releases) of every product, along with all
developers notes.
6. With this information (4 and 5) we will identify what sort of IP violation(3)
the contribution (4) is.

Again, it's hard to know exactly what Mr. McBride was trying to say, but this
is how my mind _currently_ parses his words. I think this was their logic
behind not "showing the code" to IBM. I think this is why they
believe their motion to compel was necessary. I think this is why they actually
claim that they _do_ want the 40 million pages of source code (for the record,
we're pretty sure it was pages, not lines--sorry about any typos).

I think this is why they continue to try to explain to the Judge (and everyone
else) that "it's a complex case" (McBride must have said that 6-8
times), and why the only support they presented in the hearing consisted of a
chart that nobody understood and long, rambling arguments that nobody could
follow. They kept trying to paint SCO as breaking new ground at the frontier of
IP litigation.

They may in fact be trying to break new ground. It's just a difficult prospect
when your path goes right through an active magma flow. There's a reason it's
the frontier. Nobody is insane enough to challenge it, and there's very little
to be gained.

---
Frank Sorenson

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Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 06:08 AM EST
What is an affadavit? What does it mean if SCO can't come up with the
discovery it can file an affadavit instead?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 06:15 AM EST
I hate to disagree, but SCO can construct a certain value out of keeping
RCU inside AIX only. If they manage to keep IBM from putting it into
Linux, Linux is less of a competition to their crappy UNIX garbage. Thus
they make more money. See my point?

[ Reply to This | # ]

Let's get real
Authored by: emmenjay on Saturday, December 06 2003 @ 07:15 AM EST
Guys (in the gender non-specific form of the word)

Reality check. SCO is not going to court with this - it would be a complete
rout.

SCO is only interested in delaying things as long as possible, while they raise
capital and unload executive stock at elevated prices. Then they'll fold
quicker than you can say "fast plane to South America".

The IBM victory is positive, but lets not kid ourselves that the end is near.

Michael J Smith

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: lightsail on Saturday, December 06 2003 @ 08:11 AM EST
If and when SCO show specific files in GNU/Linux that are the basis of the
lawsuit, do these files become the only files that any judgement is based on?

SCO's case will be seriously limited if this is so, and IBM's ability to
refute the claims will be simplified greatly.

Given the Open Source communities abitity to debunk prior SCO examples, the
origin and ownership of the files will be clarified within days if not hours.
Is this the beginning of the end game?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: trebonian on Saturday, December 06 2003 @ 08:58 AM EST
CNET offers a reasonable analysis of the case, but they egregiously reported
that the judge was Dale A Kimball, not Brooke C. Wells. The report reads as if
they were right there. NOT....

http://news.com.com/2100-7344-5114689.html

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 09:26 AM EST
K. McBride: "We want the 40 million pages!"
Judge: "And you will digest them by Sunday?"
K. McBride: We have expert analysts who can go through it [they want 30 days to
go over the code].


So they say they can analyse about 15 pages a second? Hey, he just confirmed
their just using grep!

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: BigTex on Saturday, December 06 2003 @ 09:59 AM EST
Great Read:
FUD and loathing in Lindon

http://www.siliconvalley.com/mld/siliconvalley/business/columnists/gmsv/7422977.
htm

[ Reply to This | # ]

  • above as link - Authored by: Anonymous on Saturday, December 06 2003 @ 10:49 AM EST
What if SCO "Complies"..
Authored by: bobn on Saturday, December 06 2003 @ 10:02 AM EST
What if SCO "Complies" by submitting all files and line numbers for
RCU, NUMA, JFS, SMP, etc? Does that not get into the details of 'what is a
deriviative work?' and 'what was the contract, exactly?', pushing all issues
into trial, and hence into the April 2005 timeframe?

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: RSC on Saturday, December 06 2003 @ 10:04 AM EST
First up: Thanks PJ for an absolutely brilliant job of keeping us informed about
this SCO circus....

Second: Sound like we might finaly be getting some straight answers from SCO.
(Well at least IBM will fingers crossed).

What sort of trouble would IBM get into if they were to take the details SCO
gives them, and remove or re-writes the sections in Linux and thus making linux
free of the "infringing IP"?

It is not directly releasing the "Trade secrets" by doing this. But
could it be classed as indirectly releasing the this protected information?

It would certainly take some of the wind from SCOs' sails ;-)


RSC.


---
----
An Australian who IS interested.

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Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 10:46 AM EST
K. McBride:
"IBM did contribute stuff to Linux, "we just don't know what it
is."

Any sco public statements that contradict this? 8 )

[ Reply to This | # ]

  • More to the point - Authored by: Anonymous on Saturday, December 06 2003 @ 10:55 AM EST
Why hasn't their stock dropped?
Authored by: mdchaney on Saturday, December 06 2003 @ 11:09 AM EST
SCO's stock price was off by a total of 1% in after-hours trading yesterday,
from Friday's open. I thought it would be into freefall yesterday, but it was
completely unaffected by the ruling.

SCO also announced Thursday that they wouldn't tell about their Q3 financials
until after the mid-month stock dump. Not surprising, but again, should have
been a clue to investors.

Finally, we have The Darl stating that it expected to lose yesterday, sounded
almost nonchalant.

What's going on here? Seriously, I'm wondering if the only people left owning
SCO stock at this point are insiders- where "insiders" also means
Deutsche Bank and other such companies that are in bed with them. Or was it
just that news of the ruling didn't make it to the news yesterday?

Dumbial Lyons' "What SCO wants, SCO gets" article looks even dumber
now, eh?

[ Reply to This | # ]

So what?
Authored by: Anonymous on Saturday, December 06 2003 @ 11:29 AM EST
In 30 days SCO is going to file the following affidavit:
------------------------------------------------
SCO cannot provide any evidence to interrogations 12 and 13 without
getting the 40 million pages of AIX code first, as well as a list of all IBM
contributions to Linux.

Yours truly,
SCO
------------------------------------------------
What next? The affidavit is true and we are still no step further.

[ Reply to This | # ]

  • So what? - Authored by: bobn on Saturday, December 06 2003 @ 11:56 AM EST
  • So what? - Authored by: Jude on Saturday, December 06 2003 @ 12:21 PM EST
  • So what? - Authored by: Anonymous on Saturday, December 06 2003 @ 12:27 PM EST
  • So what? - Authored by: Jude on Saturday, December 06 2003 @ 12:46 PM EST
  • So what? - Authored by: Anonymous on Saturday, December 06 2003 @ 04:21 PM EST
Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 12:09 PM EST
Not for nothing, and I may be silly in pointing this out, however, SCO released
its own version of linux with the supposed code in it? Regardless of what is
going on, once that happened they are bound by the GPL period. I would think?

Someone just dig up an iso of SCOs version and submit for evidence, wouldn't it
be just that easy?

Do I dare giggle?

Ken

[ Reply to This | # ]

Improper use of methods
Authored by: Anonymous on Saturday, December 06 2003 @ 01:31 PM EST
One of the claims SCO is still making is that IBM made use of Unix methods owned
by SCO to create the code IBM donated to Linux. SCO argues that they can only
prove this if they get all versions of the AIX (and Dynix) code. Because then
they can analyze if the code donated by IBM was based on these secret Unix
methods. And evoluated from these methods.

Assuming that these secret methods exist. (probably not or very limited)

How big is the chance SCO can get the code based on this reasoning.

I would say that SCO first has to prove secret Unix methods could have been used
to write the code that is found in Linux.

Are there any other cases that can be used to "prove" what the
likely outcome would be?

H@ns

[ Reply to This | # ]

Thanks to All who went to Court and Reported the outcome
Authored by: brenda banks on Saturday, December 06 2003 @ 01:44 PM EST
i really do appreciate every little tidbit of news that comes
our way.
one of the questions in the interrogatory was for sco to list everything they
have a right too,if they dont list it in this hearing can they turn around and
use it in another suit against a linux end user?
k mcbride sure understated it when he says complex but it is only complex
because sco doesnt want to follow rules and procedures
they are wanting to wiggle and weasel a way around the courts
criminal courts allow this but civit courts seem to be more formal? or am i
misunderstanding?



---
br3n

[ Reply to This | # ]

Judge Tells SCO: No, *You* Have to Show the Code First - UPDATED: 7 PM EDT
Authored by: Anonymous on Saturday, December 06 2003 @ 07:25 PM EST
After reading the transcript and comments I can see a point SCO has with their
position, that they need to see AIX source code...

They can see what is in Linux, and they can (perhaps) also see what it is that
IBM put in there.

But unless they have AIX / Dynix source code, they can't see if IBM put the
code into Linux as original stuff, or as stuff coming from AIX / Dynix.


Still they're making a whole lot off fuss around it all weakening their whole
position. They can't stick to the point, it seems. And they're doing a whole
lot of unnessecary things that detract from their case, if indeed they really
have one.

Not very smart, I'd say...

--Tim

[ Reply to This | # ]

We don't know..
Authored by: Anonymous on Sunday, December 07 2003 @ 03:44 PM EST
According to the transcript, Kevin McBride said words to the effect of:
-----
IBM did contribute stuff to Linux, "we just don't know what it
is."
-----

This seems significant. How precise and accurate is this piece of the
transcript?

If we take this at face value it seems to be an official admission by SCO that
they have no evidence.

[ Reply to This | # ]

SCOX stock trades WEIRD after the news?
Authored by: Anonymous on Sunday, December 07 2003 @ 07:58 PM EST
=== FACTS: ===

The press-release: "Dow Jones Business News
SCO Group Delays 4th-Quarter Earnings Release
Friday December 5, 10:08 am ET"

came in the morning, and for the rapidly falling SCOX (notice first 15 minutes
or so of Friday's trading) seemed to act like magic. Yet, while it talks about
a 50 Million capital injection ("private placement"), this press
release is only re-stating a fact from October. Weird#1

SCOX then trades very lightly, and horizontally, up to 2pm.

Then, the 'official media' do not publicize the court decision too much (for
eg. you won't see it on Yahoo Finance), of which first reports leak here on
Groklaw about 2:30pm. The stock started dropping from 2pm, MUCH LESS THAN IN THE
MORNING, up to ~3:10pm, but then in a very jittery trade, goes up to finish with
only very slight losses. That's Weird#2.

=== SPECULATION: ===

Conclusions?

C1) trades indeed very strangely. Manipulated is a big word (what is NOT
manipulated???), but if you jump in, either side, prepare for a rough ride.
Seems to be disconnected from "reality" (i.e public knowledge)...

C2) the friday's court decision was a "close to no-news" event to
the pro-SCOX speculators. They seem to have almost fully (and rightly) expected
it.
(SIDE NOTE: C2a) according to anyone of the GPL/IBM side, it's an obviously
loss for SCOX. I can only notice that the contrast is staggering between
opinions on the two sides!!!! )

C3) since this news actually slightly popped the stock up: my conclusion is that
the speculators hold some knowledge (under NDA, etc, etc) that makes them think
that the sooner disclosure of alleged breaches of copyright happens, the better
for them.
It might be for two reasons:

reason1)
the faster it goes, the sooner it will be over, and the sooner they will
cash-in IN THE END.

reason2)
the process speeding-up RIGHT NOW, SCOX will get more media coverage again,
reach some more clueless people likely to fall for the fud and willing to make a
quick buck, and thus likely PUSH THE STOCK UP AGAIN, but only IN THE very SHORT
TERM??

My guess is reason2, but I am biased, since I belong to the GPL side... Any
other constructive ideas, someone?

[ Reply to This | # ]

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