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What the Judge Has Ordered SCO To Give IBM
Saturday, December 06 2003 @ 03:55 PM EST

I've been getting requests for a list of exactly what SCO must provide to IBM in the next 30 days or so, according to yesterday's order by Judge Wells. I say 30 days or so, because I am not sure yet whether they have 30 days from yesterday or 30 days from the order being signed, which won't happen until Wednesday at the earliest. I would guess the latter. And then, if SCO has an incredibly plausible reason it can't meet the deadline, it must file an affidavit explaining why it can't comply, which would require more time to resolve, but they would do this at their peril. However, your question isn't so much when they have to provide it but what they must turn over.

Your wish is my command, so I will provide what we know from the public documents. This is not, however, a complete list. You will note that what we know about from these public legal documents are Interrogatories 1-9 and 12 and 13. What happened to 10-11? I don't know. Likely SCO already complied with Interrogatories 10 and 11 and they are not in dispute any more. Or I just missed finding them.

Why is there no one page you can go to and just get the list? Because normally you don't get to see interrogatories at all. They are sent by the parties to each other. They are not filed with the court. The only time we get to know about it is if it ends up being argued over in the public documents filed with the court. So to compile the list, I have had to go through all the memoranda filed by each side and reconstruct. Note that there are documents requested as well as answers. This then is the minimum SCO has to produce in the next month or have a good reason why not. IBM doesn't have to produce any discovery to SCO until they do. Enjoy.

UPDATE: Frank Jaffe has found the missing Interrogatories 10 and 11, and you can find them in the Addendum here . I have added them to the list below.

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

You can find Interrogatories 1-9 in IBM's Addendum to Memorandum in Support of IBM's 2nd Motion to Compel Discovery, which is here.

INTERROGATORY NO. 1: seeks specific identification of all alleged trade secrets and confidential or proprietary information that SCO alleges IBM misappropriated or misused. This information is requested by product, file and line of code.

INTERROGATORY NO. 2: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 2 seeks further identification of: (a) all persons who have or had rights to the same; (b) the nature and sources of SCO’s rights in the same; and (c) efforts to maintain secrecy or confidentiality of the same.

INTERROGATORY NO. 3: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 3 seeks the identity of all persons to whom the same was disclosed and the details of such disclosure. In particular, this interrogatory seeks: (a) the date of disclosure; (b) the terms of disclosure; (c) the documents relating to disclosure; (d) all places where the trade secret and/or confidential or proprietary information may be found or accessed.

INTERROGATORY NO. 4: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 4 seeks information regarding each instance in which plaintiff alleges that IBM misappropriated or misused the same. In particular, this interrogatory seeks (a) the date of the alleged misuse or misappropriation; (b) the persons involved; c) the manner of misuse or misappropriation; and (d) the location of any method or code in any IBM product, Linux, open source or the public domain.

INTERROGATORY NO. 5: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 5 seeks identification of (a) all agreements relating thereto, and (b) all copyrights and patents relating thereto, including but not limited to the owners, licensors, licensees, assignors or assignees thereof.

INTERROGATORY NO. 6: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 6 seeks (a) the origin of the code or method, including where, when and by whom created; (b) all products in which the code or method is included or upon which it is based (in whole or in part).

INTERROGATORY NO. 7: seeks a description of each instance in which IBM allegedly engaged in unfair competition, including but not limited to: (a) the dates of such conduct, (b) the persons involved, and (c) the specific manner of unfair competition.

INTERROGATORY NO. 8: seeks the identification of all agreements with which IBM allegedly interfered, including but not limited to: (a) the date of interference, (b) the persons involved in the interference, (c) the manner of interference, (d) the actions (if any) IBM encouraged licensees to take, (e) the actions, if any, such licensees took as a result of IBM’s inducement/encouragement, (f) the trade secret or proprietary information (if any) involved in the alleged interference.

INTERROGATORY NO. 9: seeks identification of all agreements that IBM has allegedly breached, including but not limited to: (a) the date of breach, (b) the persons involved, and (c) the specific manner of breach.

INTERROGATORY NO. 10: Separately, for each of plaintiff’s claims for relief, please identify all persons (including but not limited to present or former employees of plaintiff or plaintiff’s predecessors in interest) with knowledge relating to plaintiff’s claims and contentions and the general nature of, or the categories of, facts known by each person.

INTERROGATORY No.11: Please identify all products ever marketed, sold or distributed by plaintiff or plaintiff’s predecessors in interest, including but not limited to the terms on which each was marketed, sold or distributed.

Interrogatories 12 and 13 can be found in Plaintiff's Supplemental Response to Defendant's Second Set of Interrogatories and Second Request for the Production of Documents, which you can find here and also in IBM's Memorandum in Support of Second Motion to Compel Discovery, which is here.

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).

REQUEST FOR DOCUMENT NO. 74: All documents relating to SCO Forum 2003.

REQUEST NO. 75: All documents relating to the information requested in Interrogatory Nos. 12-13.


  


What the Judge Has Ordered SCO To Give IBM | 264 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
What the Judge Has Ordered SCO To Give IBM
Authored by: Anonymous on Saturday, December 06 2003 @ 04:02 PM EST
No 12 tells me that (among other things) they must
identify all code that Caldera/TSG/Santa Cruz have openly
contributed or IBM will have them for an incomplete
response.

Correct ?

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: sam on Saturday, December 06 2003 @ 04:11 PM EST
As I recall, IBM had a list of specific documents it needed and the Judge simply
asked them to prepare and include their list with the order.

[ Reply to This | # ]

Question about #4
Authored by: Anonymous on Saturday, December 06 2003 @ 04:12 PM EST
INTERROGATORY NO. 4: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 4 seeks information regarding each instance in which plaintiff alleges that IBM misappropriated or misused the same. In particular, this interrogatory seeks (a) the date of the alleged misuse or misappropriation; (b) the persons involved; c) the manner of misuse or misappropriation; and (d) the location of any method or code in any IBM product, Linux, open source or the public domain.

I do not understand how SCO is able to respond to 4a and 4b. 4c and 4d are plain and simple - you identify what and why you suspect has bean leaked, but how would they know who and when did it?

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: shaun on Saturday, December 06 2003 @ 04:12 PM EST
That's a very exstensive list of material and it seems to leave nothing
unturned.

IBM states they want the complete list of code, by file name and line number,
that SCO says is infringing in Linux. This includes any and all code not just
the Kernel.

They want a complete list of the corresponding proprietary code that is
infringed by the above list.

They want to know all the entities who had access to that code, businesses,
developers, etc.

That want to know how SCO determined it was IBM that infringed upon that code.

Plus they want all documents from the SCO Forum. Whew! I bet they have a huge
team dedicated to going through that mound of code and paperwork already set
aside and waiting.

Reminds me of a line from a Styx song. "Storm clouds a coming, I suggest
you head for higher ground." from the song "Cold War"

--Shaun

[ Reply to This | # ]

Interrogatorys 10 & 11
Authored by: fjaffe on Saturday, December 06 2003 @ 04:34 PM EST
IBM did not move to compel on those two interrogatories. The details can be found in Doc-46 which can be found here (see pages 19 & 20 of the PDF.

[ Reply to This | # ]

Time to Settle - How?
Authored by: caliboss on Saturday, December 06 2003 @ 04:35 PM EST
It's three weeks before Christmas and SCO has to gear up dozens of its nonlawyer employees to do a bunch of nasty paperwork that has no useful purpose to their jobs.

They might be motivated by the fact that all their jobs are on the line.

SCO has to be thinking..."How can we get out of this?"

What is the answer?

  1. Drop the law suit against IBM.
  2. Issue a thorough and comprehensive public apology.
  3. The entire SCO executive staff resigns (McBride, Stowell, Sontag at a minimum).
  4. GPL their UNIX IP to settle the matter with Redhat, the countersuit from IBM and bad blood of the community.

I'm rather serious here. In good conscience, if SCO did all these things, they have a shot of not being remembered as the complete and utter villians that we perceive them to be right now.

What is likely to follow from this?

  1. Stock crash
  2. Shareholder lawsuits with RBC and BayStar first in line
  3. SEC investigations/

Blame the outgoing management staff - they ARE responsible - let them take the heat. The SEC investigation will keep them busy and blunt the lawsuits that McBride et al will bring against their former employers.

Seriously, short of complete self-immolation, what other non-self-destructive exit plan can they follow at this point? They are going to have to eat the crow - feathers and all - now is the time to do it.


Grok the law, Rock the World

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: fxbushman on Saturday, December 06 2003 @ 04:43 PM EST
WRT Interrogatory #6:

No. 6 seeks ... (b) all products in which the code or method is included or upon which it is based (in whole or in part).

I keep thinking that the last phrase should read "or which are based (in whole or in part) upon it." This makes more sense to me.

[ Reply to This | # ]

To what extent can SCO keep their responses secret?
Authored by: Jude on Saturday, December 06 2003 @ 04:52 PM EST
We know SCO doesn't want any infringing code removed from Linux because they'd
much rather extort money from Linux users. The questions is whether or not they
can respond without this information becoming public knowledge.

I realize the code itself is available for public viewing, but the code isn't
what SCO is trying to hide. I think a possible response from SCO might contain
no Linux code at all, just a list of:

1) filename/date/version
2) line number(s)
3) reason why SCO thinks it infringes

If SCO does respond in this manner, is there any legal trick they can use to
prevent the respose from being shared with the Linux developers?

[ Reply to This | # ]

Another question about #4
Authored by: Anonymous on Saturday, December 06 2003 @ 04:59 PM EST
Number 4 reads:
    INTERROGATORY NO. 4: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 4 seeks information regarding each instance in which plaintiff alleges that IBM misappropriated or misused the same. In particular, this interrogatory seeks (a) the date of the alleged misuse or misappropriation; (b) the persons involved; c) the manner of misuse or misappropriation; and (d) the location of any method or code in any IBM product, Linux, open source or the public domain.

Even though IBM is asking for it here, does SCO really have to document each and every occurence (assuming for one second that IBM did infringe on SCO's rights in some way)?

My (non-lawyer) response would be that breaking a contract is like breaking a plate - its a one-time event. Just once is enough, and all I have to prove.

It seems to me that this could be seen a make-work requests to simply try to overload SCO.

Of course, it would be in SCO's best interests to document every instance that they intend to bring up in court, but if they had a solid two or three, but knew of more, would they be forced to document them all by this request?

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: gumout on Saturday, December 06 2003 @ 05:00 PM EST
PJ,
Assuming SCOG stock does not tank and SCO's Chapter 13 freezes everthing,
the next step is evaluating SCO's claim after discovery. SCO will
submit every line of code IBM has submitted to some recent version of
Linux and claim a contract violation. This is where Boies may appear.

IBM did not explicitly raise the GPL as a defense in their Amended
Answer and only asserted it in their Defendant's Counterclaims.
The GPL is certainly implicitly incorporated in IBM's:

Seventh Defense
Caldera's claims are barred by the doctrines of waiver, estoppel and unclean
hands.

There will be a long drawn out contract language argument concerning
confidentiality by SCO. IBM will win this without having to bother with arguing
the validity of the GPL (which they would also win) at this point. SCOG will
never last long enough for the trial to reach IBM's counterclaims. I believe
the judge knew this fact when she stayed further discovery.

############ SCO ARGUMENT #1

SCO is claiming breach of contract because of the phrase "provided the
resulting materials are treated hereunder as part of the original SOFTWARE
PRODUCT" in Exhibit A 2.01.


---------------------------------------Exhibit A---
2.01 AT&T grants to LICENSEE a personal, nontransferable, and nonexclusive
right to use in the United States each SOFTWARE PRODUCT identified in the
one or more Supplements hereto, solely for LICENSEE'S own internal business
purposes and solely on or in conjunction with designated CPU's for such
SOFTWARE PRODUCT. Such right to use includes the right to modify such
SOFTWARE PRODUCT and to prepare derivative works based on such
SOFTWARE PRODUCT, provided the resulting materials are treated hereunder
as part of the original SOFTWARE PRODUCT.
--------------------------------------------------


SCO is claiming contract rights trump ownership rights... and in this they are
correct. Exhibit C grants IBM ownership but SCO says our contract rights control
your rights. It is well settled law that ownership rights can be controlled by
contract rights. So the grant of ownership rights to IBM in itself did not save
the day.


------------------------------------------Exhibit C ---
This letter states understandings between our companies relating to
the referenced agreements and amends certain sections in such
agreements concerning SOFTWARE PRODUCTS subject to the referenced
Software Agreement.


2. Regarding section 2.01, we agree that modifications and
derivative works prepared by or for you are owned by you.
However ownership of any portion or portions of SOFTWARE
PRODUCTS included in any such modification or derivative work
remains with us.
---------------------------------------------------


Now to the point. Section 2. of Exhibit C cannot be interpreted in a meaningful
way when we use the phrase "provided the resulting materials are treated
hereunder as part of the original SOFTWARE PRODUCT" from Exhibit A. The
section that states "the works prepared by or for you are owned by
you" contradicts "provided the resulting materials are treated
hereunder as part of the original SOFTWARE PRODUCT... remains with us".

If the materials are treated as part of the the original SOFTWARE PRODUCT they
are owned by SCO but Sec. 2 Exhibit C says IBM owns the materials .. a logical
contradiction.

This is a common occurrance in contract law when substitute (amended ) contracts
are negotiated. It is well settled law that the substituted (amended) contract
must be controlling. If there is a contradiction in terms the the language in
the original contract is voided. Hence "provided the resulting materials
are treated hereunder as part of the original SOFTWARE PRODUCT" is voided
by the subsequent amendement.

The same goes for the definition of SOFTWARE PRODUCTS in Exhibit C
--7.06(a) ... Nothing in this agreement shall prevent LICENSEE from developing
or marketing products or services employing ideas, concepts, know-how or
technologies relating to data processing embodied in SOFTWARE PRODUCTS, provided
that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such
product or in connection with any such service, and employees of LICENSEE shall
not refer to the physical documents and materials comprising SOFTWARE PRODUCTS
subject to this agreement when they are developing any such products or
providing with any such service.

############ SCO ARGUMENT #2

SCO's claim turns on the meaning of the contract language in
Exhibit A "Such right to use includes the right to modify such SOFTWARE
PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided
the resulting materials are treated hereunder as part of the original SOFTWARE
PRODUCT."

SCO is arguing "treated as part of the original [UNIX System
V] Software Product" means "to deal with in the same manner
in which [UNIX SystemV] Software Products are treated" and
does not refer to combining the work into "[UNIX System V]
Software Product" in the sense of ownership. If this claim
were true, then Exhibit C stipulating "ownership" would
not contradict Exhibit A. That's why they refuse to mention
Exhibit C. SCO considers the contract language in Exhibit C
irrelevant.

treat --- "to regard and deal with in a specified
manner --- usu. used with as" --- Webster's Ninth New
Collegiate Dictionary.

as --- Used as an adverb, etc., means like, similar to, of
the same kind, in the same manner in which. --- Black's Law
Dictionary Fifth Edition.

Unfortunately for SCO "part" as legally defined refutes the
"like" comparative argument.The words "integral
portion",
"belonging to" and "makes up a whole "are not
comparative
constructions they are inclusive constructions. The "like"
construction compares things as "similar". The "part"
construction can only mean "inclusion into one greater
whole."

part --- An integral portion; something essentially belonging to a larger
whole; that which together with another or others makes up a whole.
--- Black's Law Dictionary Fifth Edition

Because of the word "part" there can be no mistake that the
original Exhibit A language was understood by AT&T to mean "became
part of" in the sense of ownership. Indeed, in the USL v. BSDI suit this
is what AT&T claimed... "all your code are ours". Exhibit C now
conflicts with and hence replaces the conflicted language in Exhibit A. SCO will
deny to the bitter end that Exhibit C language concerning ownership was meant to
alter the meaning in Exhibit A of "we own all your derivative
works" as originally intended by AT&T.

SCOG won't exist long enough to see the GPL upheld in court.



---
It's my table and I'll pound on it if I want to!

[ Reply to This | # ]

OT - The Lawyers
Authored by: Anonymous on Saturday, December 06 2003 @ 05:06 PM EST

Here's how I recall the procession of lawyers in the case (referring back to saved posts, etc.)

Boies's firm BS&F was retained at the very beginning and Boies commented a little bit. He was profiled in Forbes May 28, basically whining his client got no respect. He has not been quoted since, although he did actively participate in July 21 and Nov 18 conference calls.

On June 3, CNET reported a lawyer from Center 7 was coming over to be the new head litigator.

"The Canopy Group said SCO has got to hire somebody in-house to manage the IBM litigation," Tibbitts said. "My background is litigation. With the firestorm that has started, they need someone who can manage and oversee the litigation."

Tibbitts received about 65K stock options worth about $950K vesting in May 2004.

Since then Tibbitts has been pretty quiet and now Heise from BS&F seems to be the main legal person to talk to the press.

Now we have all seen how BS&F was paid $1M cash plus around $8M in restricted stock.

Of course, all along SCO has retained the local firm of Hatch, James, and Dodge and their lawyers Brent Hatch and Mark James.

However the lawyer that actually shows up to give oral arguments at the first session in court is Kevin McBride, brother of CEO Darl. And Kevin was apparently a contributor to the recent open letter.

I find it strange. Any comment?

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: Joss the Red on Saturday, December 06 2003 @ 05:41 PM EST
Whew! That is an impressive list of demands. I can't help thinking though
that all this detailed lawspeak translates to layman terms as "Exactly
what the heck are you guys blathering on about? What exactly do you think we
did wrong, and what makes you so sure WE did it?"

---
use IANAL.pm

[ Reply to This | # ]

This will all end very soon ...
Authored by: Anonymous on Saturday, December 06 2003 @ 05:46 PM EST
Unless SCO can come up with solid evidence of infringements within a month, this
case will be no more. Then again, SCO clearly stated that they won't know what
infrindgements are involved without IBM first telling them what they had
contributed to Linux. Unfortunately for SCO, the judge said IBM doesn't have
to.

With the way things are going, the lawsuit will not survive beyond early next
year, much less its original court date of 2005. Has the news reached Wall
Street yet? It's still up at an incredible $16.59, I just checked. Wonder how
those smart folks at BayStar and Deutch Bank are feeling right now? Oh yeah,
and Ms Didio too.

Well, it's all been fun. Thanks for all the hard work you put into this, PJ.
Even IBM couldn't have done it without you. You're amazing!

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: Glenn on Saturday, December 06 2003 @ 06:01 PM EST
ZDNET has run an article on the results of the hearing. They have some parts
factually wrong, such as naming Judge Kimball not Magistrate Wells as the one
making the call.
You have to admire Blake Stowell (aka Iraqi Information
Minister) to put the SCOG spin on the hearing outcome.
"Kimball on Friday also
scheduled a Jan. 23 hearing to address SCO's concerns that IBM isn't being
sufficiently forthcoming, Stowell said."
I did not get that slant from the
transcript. But I presume that SCOG's motions to compel will be addressed, if
SCOG comes up with the required discovery items.

Read the article
here:
http://zdnet.com.com/2100-1104_2-5114689.html
I don't know if anyone else
has already posted this. If so, my apologies.

Glenn

[ Reply to This | # ]

OT - RCU, SMP, NUMA request feedback
Authored by: skidrash on Saturday, December 06 2003 @ 06:12 PM EST
Supposing for a moment that SCOG can turn <nasty stuff> into gold and
manages to prove IBM should not have put RCU, SMP and NUMA into Linux.

The interesting thing to me about the IBM SMP contributions and RCU are that
these things are public knowledge. All Linux needed from IBM was permission to
use them.

could someone implement what's in Linux, with only IBM's permission to use the
patents, with NO other IBM input?

That is, reading publicly available descriptions of RCU, SMP, NUMA could
independent authors have implemented what's in Linux with no help from IBM?


Is there any information in the Linux implementations that came from IBM was not
public knowledge already, in articles, patent applications & books ?

So if SCOG claims
"IBM should not have put lines xxx,yyy in files aaaaa.foo"

IBM just says "the knowledge to do that was public already. See page xxx
to yyy of transactions of the symposium of soem stuff we did. IBM merely put
public knowledge in Linux, violating none of SCOG's rights. These are IBM
inventions and IBM scientists have an absolute right to publish their
research."

To my way of thinking, even if SCOG wins all its arguments, it still needs to
find some part of IBM's contributions of RCU, SMP, NUMA that were not already
public knowledge before IBM made the contribution.

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: PolR on Saturday, December 06 2003 @ 06:17 PM EST
#include IANAL.h

We are all focused on SCO's claims, but it seems to me that some of the IBM's
counterclaims are very forceful strategic moves. The Lanham act violations and
tortious interference with IBM's business are especially relevant. These claims
allows IBM to discover ALL rights SCO may have to Linux, not only those that are
related to IBM. This is a very meaningful event that prepare for the next IBM
and Red Hat moves.

<question_mode_on>

<question #1>
Once they have answered IBM's interrogatories, especially question no 12, could
it be that SCO will not be able to generate new FUD built on new claims? If they
do, they would instantly be guilty of Lanham act violations and tortious
interference as IBM claims. Maybe IBM will be able to get an injunction to bar
SCO from making any new public claims. If SCO wants to continue its FUD
campaign, they will be forced to recycle the same existing claims again and
again.

<question #2>
SCO have to claim some form of copyright violations. If they don't, they
instantly loose the Red Hat case because they will have to tell the same story
to both courts. Red Hat will likely call for a summary judgement.

<question #3>
SCO have to prove they own the copyright when making a copyright claim.
Otherwise they don't make the claim with specificity and don't comply with
request no 75. They have to track the code origin and provide evidence it is
theirs to begin with. Could IBM get the court to discard faulty evidence in
discovery stage or do they need to go to trial? If the evidence can be shot down
during discovery, that will become one major task for kernel hackers and Unix
grey beards in the coming weeks.

<question #4>
According to Webster Knight opinion, SCO will be thrown out of court if the
copyrighted code they claim has been released under the GPL. So maybe question
no 3 is moot.

[ Reply to This | # ]

SCO's 122 CD's of Discovery
Authored by: Anonymous on Saturday, December 06 2003 @ 06:21 PM EST

In an earlier thread, someone asked if the 122 CD's of SCO's discovery
included the CD's of TIFF images.

The answer is yes.

From page 5 of IBM's first Memo In Support Of Motion To Compel (Document 45):
"...on September 20, 2003, SCO made an initial production of 46 CDs
containing over 900,000 pages of source code..."

A little quick math shows that each CD contained about 20,000 pages of source
code. At approximately 700,000 KB per CD, each page would be about 35 KB in
size. I'm sure we can all agree that in text form, a page of source code would
be about 5 KB max. (80 bytes per line x 60 lines per page) and this would only
be reached if every line were filled with blank charaters rather than returns at
the end of the line.

This is probably Judge Welles asked about the "hundreds of thousands of
pages of unusable text" in her questioning of Kevin McBride. Clearly, if
SCO claims that they gave a hundred CD's of discovery more than IBM, but those
CD's were in an unusable format, their claim of having delivered more discovery
materials than IBM is disingenuous.

The judge may well have felt insulted by SCO's presumption that whe was too
ignorant to know the difference between usable and non-usable discovery
materials.

SCO may have dug an even deeper hole for themselves than we realized yesterday.
Treating a judge as if she's stupid is not going to win them any points.

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: pooky on Saturday, December 06 2003 @ 07:00 PM EST
Well that's pretty much the whole enchilada isn't it? The compliation of the
requests seems to be "all code SCOG owns that they claim IBM contributes
to Linux, if that code was ever licensed to another party and who/when, the
nature of SCOG's rights to the code in question (prove it), and line by line
breakdown of every file in Linux they claim is theirs."

That would seem to put all of the cards on the table for SCOG. My guess is they
actually can't comply fully with this request it is so broad, but because of
thier dickering around they now have to do it in 30 days from 12/10/03. I'll be
they try to turn over something that IBM will consider non-compliant and then
the real nasty fight will begin when SCOG has to explain to the court, in
detail, why they are in the conflict with IBM.

I won't make future predictions but it would seem to me that this might not
ever make it in front of a jury.

---
SCO FUD = Faux SCUD?

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: Anonymous on Saturday, December 06 2003 @ 07:04 PM EST
After this mess is over and SCO proves that they have no stake in the Linux Kernel or anywhere else, I'd love to see a class action suit on behalf of all of the linux kernel developers for illegaly licensing their intellectual property.

Maybe this could be headed up by the FSF or EFF?

IBM could help by providing all the answers they receive from their discovery process, providing proof that SCO didn't have any IP in the linux that they charged companies licenses for.

Hopefully SCO could be ordered to pay all of the revenue generated from the SCO Source Initiative to the FSF for compensation of their work.

I mean, they've already stated publicly that they had no need to invoice as they were happy with the amount of companies signing up for the licensing program.

This way all those stupid companies that paid at least end up helping to fund further OSS development and Microsoft in the end becomes their own worst enemy!

[ Reply to This | # ]

An embedded penguin?
Authored by: Icicle Spider on Saturday, December 06 2003 @ 07:20 PM EST
Frank Sorenson's report stated:
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.
I wonder who is Judge Wells "brains"? Could her right hand man be a Linux advocate?

Pat

[ Reply to This | # ]

Derivative works
Authored by: Khym Chanur on Saturday, December 06 2003 @ 07:30 PM EST
There was some speculation that the judge siding with IBM on discovery would
also be a siding with their interpretation of derivative works, which would be a
blow to SCO's suit. However, since IBM has supplied the code for all releases
of AIX (rather than all iterations), the question of derivative works was left
untouched, and the judge was just saying that the code IBM gave to SCO is enough
for them to work with.

Is that about right?

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: Anonymous on Saturday, December 06 2003 @ 07:44 PM EST
Great read!
http://www.eweek.com/article2/0,4149,1405711,00.asp

[ Reply to This | # ]

Don't think SCO is done yet.
Authored by: Anonymous on Saturday, December 06 2003 @ 08:11 PM EST
Don't count SCO out. Boise and crew aren't stupid and I bet they have
more dirty tricks up their sleeves. I can't imagine that they will lie down
for this.

So I have some questions that might be pertinent here.

What's to keep SCO from continuing it's shenanigans? So they've been
compelled to answer, but who says those answers will be fully
responsive? They're not IBM's bitches, right? They may provide
insufficient information or not make much effort, who makes the
judgment that they've adequately answered? The judge? What happens
if they answer, but not sufficiently and the judge says "your answers are

not good enough." Do they get another chance to improve their
responses or is the case thrown out of court? Maybe sanctions? What
would those be?

Can IBM claim that any response they give isn't responsive enough?
Once again, who decides that? How many hearings will it take to
determine who's in the right? How long will SCO be able to drag it all
out? What happens at the Jan 23rd hearing if SCO hasn't answer to IBM's
satisfaction? Do they still hear the motion to compel IBM's discovery?

Can SCO complain that they didn't have enough time? There's a lot of
detail being asked for in those interrogatories. That's a lot of work to
do. They may have a legitimate complaint that 30 days isn't enough
time. Will the judge be sympathetic at all? I think that they can ask for
an extension of the deadline (true??), but IBM would have to agree, which
I doubt they would. Doesn't this put SCO under the gun timewise? Can
they do anything about that or strech it out?

I know the obvious answers to these questions, but SCO has behaved in
ways that didn't make sense and were unexpected. What I'm asking for
are the non-obvious answers. Think about what could happen, not what
you think will happen or want to happen.

Thanks.

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: n0ano on Saturday, December 06 2003 @ 08:52 PM EST
It just occurred to me that I think SCO is going to have major problems specifying what SCO code has been stolen by IBM. Remember that the specific areas where SCO is claiming infringment are JFS, NUMA, and RCU (I'm ignoring SMP, SCO's claim to SMP is so laughable as to be ignored). The problem is that SCO doesn't have an implementation of JFS, NUMA or RCU in any of it's operating systems. These were all technologies that were developed by IBM, Sequent & SGI and I don't believe those companies every gave that code back to SCO. So SCO is back to asserting that IBM stole all of this code from us but we can't show you exactly where because we've never seen the code ourselves!

I'd love to be there to see how the judge responds to that claim.

---
"Censeo Toto nos in Kansa esse decisse." - D. Gale

[ Reply to This | # ]

#75
Authored by: Anonymous on Saturday, December 06 2003 @ 09:02 PM EST
This one could be a ticking bomb:

REQUEST NO. 75: All documents relating to the information requested in Interrogatory Nos. 12-13.

This would include all documents from the code analysis that SCO said it did starting back in February, the one that allegedly turned up a million lines of code. That means documents like the minutes of the meeting where they decided to do the code analysis, who was hired, their time sheets, all the raw data and reports, and so on.

SCO has no choice in this. The order says that SCO must either turn over the discovery materials or submit an affidavit as to why it was impossible for them to do so. If they fail to turn over the documents, they will be in contempt of court and the judge can send in the federal marshalls.

Now suppose, as many think, that SCO never did the code analysis. Then there will be no documents from it and IBM will point that out to the judge. Or suppose they did do a code comparison, but then they never checked where the matches came from, like if it was public domain code. Again, IBM would point out the lack in the documents. Or suppose they found only a few hundred matching lines, not the million they have been claiming publically.

I think we can be sure that the code analysis was very defective, if it was done at all. What the documents show about this will feed into IBM's Lanthan et al charges. For instance, it could file a motion on those charges through summary judgement. Even if the judge didn't grant it, the motion would be public and everyone would learn that the code analysis talk was a con.

[ Reply to This | # ]

Text for doc-38: Protective order
Authored by: Thomas Frayne on Sunday, December 07 2003 @ 12:03 AM EST
IT IS HEREBY ORDERED THAT:
1. Definitions: For purposes of this Protective Order, the following definitions
shall apply:

C. The term "CONFIDENTIAL INFORMATION" is defined herein as
information or DOCUMENTS or other materials that the DISCLOSING PARTY in good
faith believes is not publicly known that would be valuable to third parties,
including but not limited to the DISCLOSING PARTY'S actual and potential
competitors, and that the DISCLOSING PARTY would not normally reveal, and has
not revealed, to third parties without an agreement to maintain it in
confidence.

Applicability of this Order: All CONFIDENTIAL INFORMATION, and all copies,
excerpts and summaries thereof and material containing information derived
therefrom, filed with the Court, submitted to the Court in connection with a
hearing or trial, or produced or served either by a party or by a non-party, to
or for any of the other parties, shall be governed by this Protective Order and
used only for the purposes of this Action and not for any other purpose
or function, including without limitation any business, patent prosecution,
competitive or governmental purpose or function. No person who prosecutes
patents relating to the technology claimed in the patents in suit shall have
access to CONFIDENTIAL INFORMATION. The terms of this Protective Order shall
apply to all manner and means of discovery, including without limitation oral
testimony, entry onto land or premises, and production and/or inspection of
books, records, DOCUMENTS and tangible things.

3. Designating Information: If, in the course of this Action, a DISCLOSING PARTY
discloses information that the DISCLOSING PARTY in good faith contends is
CONFIDENTIAL INFORMATION, that DISCLOSING PARTY may designate such information
as such by applying to the material that contains the information the
CONFIDENTIALITY LEGEND, which shall read "CONFIDENTIAL".

D. Depositions: Counsel for the deponent or for a party may designate any part
or all of a deposition as confidential by notifying all counsel of record prior
to or during the deposition of the confidentiality designation. If a eposition
concerns CONFIDENTIAL INFORMATION, counsel for the deponent or for a party shall
have the right to exclude from the portion of the deposition concerning such
information any person not authorized to have access to CONFIDENTIAL INFORMATION
under this Protective Order. A party designating a portion of the testimony as
CONFIDENTIAL INFORMATION may also request that the affected portions be bound
separately from the rest of the transcript. In accordance with Section 14 of
this Protective Order the non-designating party may request that the designating
party review a particular designation, in which event the designating party
shall review the designation in question and shall have the option of changing
it and shall give notice to the other party in writing if a change is made.

E. Deposition Exhibits: An exhibit to a deposition shall be treated in
accordance with the confidentiality designation already given to it or, if the
exhibit has not been previously produced, given to it on the record at the time
of the deposition. The designation of a deposition as CONFIDENTIAL INFORMATION
or the de-designation of a deposition from CONFIDENTIAL INFORMATION shall not
affect the confidentiality status of exhibits presented at the deposition.

Persons Permitted to Access Confidential Information: Access to information that
has been designated as CONFIDENTIAL INFORMATION shall be limited to the
following persons:
A. The Court, and its support staff and other authorized Court personnel, and
jurors and alternate jurors, if any;
B. Counsel (in-house and outside) for the parties to this Action and their
SUPPORT STAFF;
C. Stenographers and videographers who take, record or transcribe testimony in
this Action, either at deposition or at a hearing or trial, to the extent
necessary to carry out their services;
D. LITIGATION SUPPORT SERVICES, as defined in Section 1, to the extent necessary
to carry out their services
E. Any individual who previously had rightful access to the CONFIDENTIAL
INFORMATION in question, as authorized by the DISCLOSING PARTY, in the form that
the CONFIDENTIAL INFORMATION was produced by the DISCLOSING PARTY, in the
ordinary course of business or employment, so long as the provision of
CONFIDENTIAL INFORMATION under this paragraph is subject to the same limits set
forth in paragraph 4.F;

No Summaries: CONFIDENTIAL INFORMATION shall not be disclosed or summarized,
either in writing or orally, to anyone other than persons permitted to have
access to such information under this Order. Notwithstanding the foregoing,
nothing in this Order prohibits counsel for either party from advising their
respective clients of the presence or absence of evidence supporting or refuting
the claims or defenses in this Action.

8. Challenging a Designation: At any time, a party to this Order may challenge
the designation of information as CONFIDENTIAL INFORMATION by notifying the
DISCLOSING PARTY in writing of the information that the challenging party in
good faith believes should not have been given a designation of CONFIDENTIAL
INFORMATION. The parties shall then confer within five (5) business days to try
to resolve the matter, and if unable to resolve the matter, may thereafter seek
the Court's assistance. The burden of proof shall be on the DISCLOSING PARTY to
show that the designation is appropriate under this Order. Until the matter is
resolved by the parties or the Court, the information in question shall continue
to be treated according to its designation under the terms of this Order. By
failing to object to the designation of information upon its production, a party
does not waive its right to object at a future time to that designation.

11. No Waiver of Rights: This Order shall not be deemed (a) a waiver of any
party's or producing entity's right to object to any discovery requests on any
ground; (b) a waiver of any party's right to seek an order compelling discovery
with respect to any discovery requests; (c) a waiver of any party's right to
object to the admission of evidence on any ground; (d) a waiver of any party's
or producing entity's right to use its own DOCUMENTS, testimony, transcripts,
and/or other materials or things within its own discretion; (e) any waiver of
the attorney-client privilege or protection of the work product doctrine; or (f)
a waiver of any party's right to seek additional protection for certain
materials or information. In the event that either party seeks such additional
protection, that party shall first confer with the opposing party to reach
agreement with respect to such additional protection. If the parties are unable
to reach agreement, the party seeking such additional protection shall, within
10 business days after the parties have conferred and failed to reach agreement,
file a motion or application with this Court for an additional Protective
Order.

12. Disclosure Beyond the Terms of this Order: Nothing shall prevent disclosure
beyond the terms of this Protective Order if the party designating the
information as CONFIDENTIAL INFORMATION consents to such disclosure in writing
or on the record, or if the Court, after notice to all affected parties, orders
such disclosure.

13. Inadvertent Disclosure: Should any designated information be disclosed,
through inadvertence or otherwise, to any person or party in violation of this
Order, then the party responsible for the inadvertent disclosure shall use
reasonable efforts to bind such person to the terms of this Order, and shall (a)
promptly inform such person of all the provisions of this Order, (b) request
such person to sign the Declaration and Acknowledgement (attached hereto as
Exhibit A), (and, if such person does not agree to sign the Declaration and
Acknowledgement, use reasonable efforts to retrieve the designated information
promptly); and (c) identify such person immediately to the DISCLOSING PARTY that
designated the document as CONFIDENTIAL INFORMATION. The executed agreement
shall promptly be served upon the DISCLOSING
PARTY.

14. Disclosure of a Party's Own Information: The terms of this Order shall in
no way restrict a DISCLOSING PARTY'S right to reveal or disclose to anyone any
DOCUMENTS or information designated by that party as CONFIDENTIAL INFORMATION.

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

My comments:

I think the most important part of this document from GrokLaw's perspective is
that IBM has the right to challange the confidentiality of any information that
SCO marks confidential, and the judge can declare that information to be
non-confidential if she finds that SCO has not shown good cause to leave it
confidential.

Here is a quote from http://www.lectlaw.com/def2/p103.htm

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

The state has two substantial interests in regulating pre-trial discovery: one
is to facilitate the search for truth and promote justice (Hickman v. Taylor
(1947) 329 U.S. 495, 507); the other is to protect the legitimate privacy
interests of the litigants and third parties. (Seattle Times Co. v. Rhinehart
(1984) 467 U.S. 20, 34-35) The interest in truth and justice is promoted by
allowing liberal discovery of information in the possession of the opposing
party. (Id. at p. 34.) The interest in privacy is promoted by restricting the
procurement or dissemination of information from the opposing party upon a
showing of "good cause" (F.R.C.P. rule 26, subd. (c); Code Civ.
Proc., section 2031, subd. (e).) (See generally Greyhound Corp. v. Superior
Court (1961) 56 Cal.2d 355, 377.) "The trial court is in the best position
to weigh fairly the competing needs and interests of parties affected by
discovery." (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 36.)

Secrecy agreements and protective orders impair the public's access to
discovery records as well as the parties' First Amendment right to disseminate
information to the public. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. 20
at pp. 31-32.) Because the judicial process is frequently the avenue by which
the public and regulatory agencies learn of significant health and safety
hazards, blocking this avenue may prove detrimental to the public well-being.
For this reason, courts frequently consider the public interest when determining
whether good cause exists for a protective order. (See, e.g., Brown &
Williamson Tobacco Corp. v. F.T.C. (6th Cir. 1983) 710 F.2d 1165, 1180
[unsealing documents because information relevant to public health]; and see
discussion in Timmons, Protective Orders in Products Liability Litigation:
Striking the Proper Balance (1991) 48 Wash. & Lee L. Rev. 1503, 1528.)

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

[ Reply to This | # ]

SCO's lawyers made a huge mistake
Authored by: Anonymous on Sunday, December 07 2003 @ 12:04 AM EST
#include <ianal.h>

If you look at the list of interrogatories and imagine for a moment that SCO had
to fulfill it completely, you would see that it's a herculean task. They
can't do a complete job with what the time and people they have available,
it's just not possible.

From what I've seen of other trials, though, interrogatories of the breadth and
number that IBM has made are usually negotiated down to something more
reasonable. One asks for the moon, planning to eventually accept the few
nuggets that you really need.

Unfortunately, SCO decided to waste its time over the last few months. As they
have typically done, they copied IBM's own initiatives -- in this case they
submitted a request for IBM to be compelled to produce discovery material even
though the burden is clearly on SCO at this point.

They should have been fighting tooth and nail to negotiate down the list of
demanded materials, and should have been showing good faith by responding to the
obvious ones quickly. Instead, they have been blustering and demanding.

Now they are in a position where they can no longer negotiate. IBM gets to give
them a list of specific demands, and SCO has no alternative but to fulfill those
demands completely and extremely promptly, or face contempt if not dismissal of
their suit. There is no forum now for them to complain that the interrogatories
are overbroad, for instance -- they've lost that chance.

I expect that they will fail to answer the interrogatories to the satisfaction
of the judge or IBM, and will file affadavits declaring why they shouldn't be
bound by them.
And I expect that will be the end of the story, the judge will agree to IBM's
demand that the case be dismissed.

thad

[ Reply to This | # ]

One format problem in No. 2
Authored by: Anonymous on Sunday, December 07 2003 @ 05:32 AM EST
INTERROGATORY NO. 2: ... (b) the nature and sources of SCO?s rights ...
The ? should be an apostrophe.

[ Reply to This | # ]

Testing. please ignore
Authored by: Grim Reaper on Sunday, December 07 2003 @ 10:01 AM EST
Unable to post in the latest topic, for some reason.

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

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: PeteS on Sunday, December 07 2003 @ 11:09 AM EST
IANAL etc.

INTERROGATORY NO. 2: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 2 seeks further identification of: (a) all persons who have or had rights to the same; (b) the nature and sources of SCO’s rights in the same; and (c) efforts to maintain secrecy or confidentiality of the same.

Italics mine

Having been involved in a trade secrets lawsuit as an expert witness, the above in italics is a killer. SCOX must show that they took the necessary steps to keep their code (that they claim IBM misappropriated) a secret, which given the research shown here, will be incredibly difficult, if not downright impossible.

The suit I was involved in was thrown out on just such grounds - the plaintiff had not taken the proper steps to ensure a trade secret remained a secret.

The lawyers around here can tell you what various things will fall afoul of this provision,and they are many, but if it can be shown (which appears so) that SCOX did not take preventive steps, then the case falls apart completely. I would still expect IBM to ask for rulings on all their counter motions however, to prevent any such attack in the future, because such a narrow ruling would not address all the issues SCOX has filed.

As to Boies, he's not an idiot; I am sure he is watching the case unravel and looking for a suitable exit strategy.

---
Artificial Intelligence is no match for natural stupidity

[ Reply to This | # ]

C.NET News Document
Authored by: Anonymous on Sunday, December 07 2003 @ 11:45 AM EST

For lay people who are not following the SCO case closely, C.NET does a good job of summerizing the Judge's decision and providing background in this story:

Judge orders SCO to show Linux infringement
Last modified: December 5, 2003, 6:53 PM PST

http://news.co m.com/2100-7344_3-5114689.html?tag=nefd_top

[ Reply to This | # ]

Line56 News Article.
Authored by: WhiteFang on Sunday, December 07 2003 @ 06:53 PM EST
http://www.line56.com/articles/default.asp?ArticleID=5208

Line56 - The E-Business Executive Daily
SCO Must Prove Case
Utah judge gives 30 days to show infringed Linux code, suspends further
discovery; open source changing business models in any case, advocate says

Seems to be a pretty good article. Mentions Groklaw. Garbage McBribe quote.
Interesting quote from RMS.

The article is very fair and reports the Friday rulings succinctly.

;-)

[ Reply to This | # ]

Drive SCO down
Authored by: Anonymous on Sunday, December 07 2003 @ 07:53 PM EST
I know this is not related - but I can't find a relevant place.

It's clear to me that SCO is driven by the greed of the their management. It
seems that there are few grounds on which SCO might be successful; most analyses
seem to suggest that they are full of crap. The alternative explanation is that
Darl and other directors will benefit by the raised price of SCO stock. Let's
hurt them where it counts...

The solution to the problem is to make a bonfire of shareholder value. Drive the
stocks down enough and the board will lose Darl, and decide that they were
wrong.

I can imagine a number of ways to do this:

- Post messages in financial forums in language that the people who hang out
there will understand, saying that SCO is fucked. (If you make your living
coding, then don't do this - you don't speak the right language.) Report back
that you've done so, so that people who use this as a forum can track what's
happening.

- If you have some money to spare, buy some SCO stock and sell lower. You'll
lose some money, but you'll be driving the market down. That's a clear message
to investors, and to the management team.

- If you know anyone who deals with investment, tell them that you think the
case is a crock. Word gets around fast, and the more people who think SCO is in
trouble, the lower the price will drop.

- If you know someone in the media, tell them about the case, and how Darl and
the board are gouging investors. Explain to them in easy language what the case
is about, and how by now there's unlikely to be doubt in the mind of the SCO
board that they embarked on a doubtful path. Explain to them that you think this
means that SCO are misleading investors.

Anyone else got any ideas?

[ Reply to This | # ]

What the Judge Has Ordered SCO-Humor To Give IBM
Authored by: Anonymous on Monday, December 08 2003 @ 03:13 PM EST
SCO Must Prove Existence Of Santa Claus in Thirty Days

http://bbspot.com/News/2003/12/sco_christmas.html

[ Reply to This | # ]

What the Judge Has Ordered SCO To Give IBM
Authored by: Anonymous on Friday, December 19 2003 @ 07:36 PM EST
You send Darl's brother so that you can suck some compensation out of the
process. That is, given that rampant stock selling at this point would probably
draw the ire of somebody, I have got to think Darl is trying to figure out how
to profit from this in the mean time. Why not pay off his brother for lawyer
duty.

Either that or nobody else would take the case... ;-)

[ Reply to This | # ]

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