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The Missing Interrogatories 10 and 11
Saturday, December 06 2003 @ 08:24 PM EST

Frank Jaffe has the honor of being the one to remember where to find the missing Interrogatories 10 and 11. He did the transcript of IBM's Addendum [PDF], the revised one that has numbers 10 and 11. So here it is, in all its glory. Thank you Frank. The missing Interrogatories are:
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.



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

Alan L. Sullivan (3152)

Todd M. Shaughnessy (6651)

Snell & Wilmer L.L.P.

[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP

Evan R. Chesler (admitted pro hac vice)

Thomas O. Rafferty (admitted pro hac vice)

David R. Marriott (7572)

[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff

International Business Machines Corporation




THE SCO GROUP,

Plaintiff/Counterclaim-Defendant

vs.

INTERNATIONAL BUSINESS

MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

ADDENDUM TO

DEFENDANT/COUNTERCLAIM

PLAINTIFF INTERNATIONAL BUSINESS

MACHINES

CORPORATION’S MEMORANDUM IN

SUPPORT OF MOTION TO

COMPEL DISCOVERY

(ORAL ARGUMENT REQUESTED)

Civil No. 2:03cv0294

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells



SCO v. IBM; IBM v. SCO

Summary of Deficiencies in SCO’s Interrogatory Responses

NO

Interrogatory

Response

Deficiencies and Cure

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.

SCO’s Response and Objections: “In addition to the foregoing General Objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. Subject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order. The trade secrets include without limitation UNIX software design methods for creation and modification of software based on UNIX
System V. These UNIX methods include ways to modify IBM's version of UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx. The UNIX methods include those inherent in and learned through access to the System V source code licensed to IBM and/or Sequent and those developed by IBM and/or Sequent in creating derivative works and modification based on UNIX System V pursuant to licensing agreement with SCO's predecessors and SCO and those that IBM and/or Sequent agreed to maintain in confidence for SCO's predecessors and SCO. Without limitation, the methods include technical UNIX categories, such as multi-processor locking and unlocking methods, methods for avoiding locking requirements, methods for implementing filing systems, de-bugging methods, methods for implementing and improving processor scalability, methods for implementing and improving processor reliability, methods for implementing and improving processor accessibility, methods for implementing and improving scheduling systems, methods for implementing and improving memory management, methods for implementing and improving threading and multi-threading, and methods for implementing and improving general system functionality based on UNIX technology.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d), and its general, narrative response is essentially meaningless.

SCO's reliance on Rule 33(d) is improper because (1) the alleged trade secrets and any confidential or proprietary information that SCO alleges or contends IBM misappropriated or misused cannot be derived or ascertained (by product, file and line of code) from the documents SCO has produced; (2) the burden of deriving or ascertaining the answer to this interrogatory from the documents SCO has produced is not substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the answer may be ascertained.

SCO's narrative response is essentially meaningless because (1) it is expressly non-exclusive; (2) it omits any reference to most of the very kinds of alleged trade secrets and confidential or proprietary information that SCO has publicly identified (albeit in vague and general terms) as having been misappropriated
or misused by IBM (e.g., “literal copying”; “derivative works”, “obfuscation”, and “non literal transfers” of “structures” and “sequence”); (3) the “methods” to which SCO refers are described in terms that are so vague as to be essentially meaningless (e.g., SCO fails entirely to identify the files and lines of code that correspond to the “methods” to which SCO refers); and (4) SCO’s reference to terms such as “RCU”, “NUMA” and “SMP” are no more meaningful than SCO's list of “technical UNIX categories”, as SCO fails to identify a single file or line of code and cannot in good faith claim all RCU, NUMA and SMP code.

SCO should be required immediately to identify -- by product, file and line of code -- all of the alleged trade secrets and any confidential or proprietary information that SCO alleges or contends IBM misappropriated or misused. There is no reason it cannot, and should not be required to, do this.

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 person
to maintain the secrecy or confidentiality of the alleged
trade secrets and any confidential or proprietary information.

SCO’s Response and Objections: “In addition to the foregoing General Objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. In addition, SCO objects to this question as overly broad in that once SCO or its predecessors licensed the Protected Material to companies, the identity of persons within those companies who were bound by the confidentiality provisions is not known to SCO nor are the individual efforts of each of those companies and its personnel to maintain the secrecy and confidentiality of the Protected Material as they were obligated to do. Subject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order, including but not limited to the license agreements between SCO (and its predecessors) and third parties concerning the Protected Material.”

Supplemental Response: In response to IBM demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the
System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d) and does not even undertake a narrative response.

SCO's reliance on Rule 33(d) is improper because (1) the identity of all persons who have or have had rights to, the nature and source of, and all efforts by any person to maintain the secrecy or confidentiality of each line of code identified in response to Interrogatory No. 1 cannot be derived or ascertained from the documents SCO has produced; (2) the burden of deriving or ascertaining the answer to this interrogatory from the documents SCO has produced is not substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the answer may be ascertained.

For each line of code identified in response to Interrogatory No. 1, SCO should be required immediately to identify: (a) all persons who have or have had rights to the code, including in particular all officers and employees of SCO and its predecessors in interest; (b) the nature and source of SCO's rights in the code, such as whether they are contractual, common law or statutory (e.g., trade secret) and how SCO acquired such rights; and (c) all efforts by any person to maintain the secrecy or confidentiality of the code (such as by bringing suit to protect the confidentiality of the code).

3.

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, please identify all persons to whom the alleged trade secret or confidential or proprietary information is known or has been disclosed and describe, in detail, the circumstances under which it became known or was disclosed, including but not limited to:

(a) the date on which the alleged trade secret or confidential or proprietary information was disclosed or became known to such persons; (b) the specific terms on which the information was disclosed or became known, such as pursuant to a confidentiality agreement; (c) all documents or agreements relating to the disclosure; and (d) all places or locations where the alleged trade secret or confidential or proprietary information may be found or accessed.

SCO’s Response and Objections: “For questions 3(a)-(c) in addition to the foregoing general objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. In addition, SCO objects to this question as overly broad in that once SCO or its predecessors licensed the Protected Material to companies, the identity of persons within those companies who were bound by the confidentiality provisions is not known to SCO nor are the individual efforts of each of those companies and its personnel to maintain the secrecy and confidentiality of the Protected Material as they were obligated to do. Subject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order, including but not limited to the license agreements between SCO (and its predecessors) and third parties concerning the Protected Material. For interrogatory 3(d), SCO’s investigation is continuing but, at this time, SCO’s Protected Material has been found in Linux Kernel 2.4.x and 2.5.x., as well as on various licensees' flavors of UNIX.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d) and does not even undertake a narrative response.

SCO's reliance on Rule 33(d) is improper because (1) all persons to whom the code identified in response to Interrogatory No. 1 is known or has been disclosed and a detailed description of the circumstances under which it became known or was disclosed cannot be derived or ascertained from the documents SCO has produced; (2) the burden of deriving or ascertaining the answer to this interrogatory from the documents SCO has produced is not substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the answer maybe ascertained.

SCO should be required immediately to identify all persons to whom the code identified in response to Interrogatory No. 1 is known or has been disclosed and describe, in detail, the circumstances under which it became known or was disclosed, including but not limited to:

(a) the date on which it was disclosed or became known; (b) the specific terms on which it was disclosed or became known, such as pursuant to a confidentiality agreement or under the GPL or another license; (c) all documents or agreements relating to the disclosure such as e-mails or internal memoranda discussing a disclosure; and (d) all places or locations where the alleged trade secret or confidential or proprietary information may be found or accessed such as a website or a file and line of code in Linux.

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.

SCO’s Response and Objections: “In addition to the foregoing General Objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM and/or Linus Torvalds and/or the Open Source Development Laboratory (“OSDL”). Subject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order. In addition, and subject to and without waiving any objections, IBM has misappropriated, misused, transferred and otherwise directly and indirectly communicated the trade secrets identified in Interrogatory No. 1 above to Linus Torvalds, the OSDL, other Linux and open source developers, Linux distributors and Linux end users.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d), and its general, narrative response is essentially meaningless.

SCO's reliance on Rule 33(d) is improper because (1) IBM cannot derive or ascertain from the documents SCO has produced (a) each instance in which SCO alleges or contends that IBM misappropriated or misused the code identified in response to Interrogatory No. 1;
(b) the date of the alleged misuse or misappropriation; (c) all persons involved in any way in the alleged misuse or misappropriation; (d) the specific manner in which IBM is alleged to have engaged in misuse or misappropriation; or (e) the location of each portion of such code or method in any product, in Linux, in open source, or in the public domain; (2) the burden of deriving or ascertaining the answer to this interrogatory from the documents SCO has produced is not substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the answer may be ascertained.

SCO’s narrative response is essentially meaningless because it includes no more particularity than the vague allegations of the complaint.


SCO should be required immediately to
describe, in detail, each instance in which plaintiff alleges or contends that IBM misappropriated or misused the code identified in response to Interrogatory No. 1, 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, including in particular all officers and employees of SCO and its predecessors in interest; (c) the specific
manner in which IBM is alleged to have
engaged in misuse or misappropriation, such as by (i) line-for-line copying of code from
System V to Linux kernels 2.4+, (ii) copying, posting, removing legal notices or reorganizing the order of program structures;
(iii) contributing modifications of System V to Linux kernels 2.4+ in violation of contracts; and (iv) making non-literal transfers of methods, structures and sequences from System V to Linux kernels 2.4+; and (d) the location of each portion of the identified code in any product, in Linux, in open source, or in the public domain -- identified by file and line of code.

5.

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, please identify: (a) all agreements relating to the alleged trade secret or confidential or proprietary information including but not limited to the parties to and the terms of the agreements, and
(b) all copyrights and patents relating to the alleged trade secret or confidential or proprietary information including but not limited to the owners, licensors, licensees, assignors or assignees of those copyrights or patents.

SCO's Response and Objections: “Subject to and without waiving the General Objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information, SCO relies too heavily on Rule 33(d) and does not even undertake a narrative response.

SCO may rely, in part, on Rule 33(d) to satisfy its obligation to respond to this interrogatory.
But SCO goes too far, as (1) the mere
production of documents does not allow IBM to link the lines of code identified in response to Interrogatory No. 1 to the agreements,
copyrights and patents requested by this interrogatory; (2) the burden of deriving or ascertaining the full answer to this interrogatory from the documents SCO has produced is not substantially the same for IBM as for SCO; (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the full answer may be ascertained.

SCO should be required immediately to identify, by file and line of code, all agreements, copyrights and patents relating to each file and line of code identified in response to Interrogatory No. 1

6.

For each line of source or object code and each method identified in response to Interrogatory
No. 1, please identify: (a) the origin of the code or method, including when, where and by whom the code or method was created; and (b) all products in which, in whole or in part, the code or method is included or on which, in whole or in part, the code or method is based.

SCO’s Response and Objections: “In addition to the foregoing General Objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM, such as the modifications and derivative works created by IBM that were to be treated as the original Software Product as that term is defined in the Software Agreement or Sublicensing Agreement. Subject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-1l are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d) and does not even undertake a narrative response.

SCO's reliance on Rule 33(d) is improper because (1) IBM cannot derive or ascertain from the documents SCO has produced (a) the origin of the code identified in response to Interrogatory No. 1; and (b) all products in
which the code is included or on which it is based; (2) the burden of deriving or ascertaining the answer to this interrogatory from the documents SCO has produced is not
substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the answer may be ascertained.

SCO should be required immediately to
disclose, for each line of code identified in response to Interrogatory No. 1, (a) the origin of the code or method (such as when, where and by whom the code or method was created); and
(b) all products in which it is included or on which it is based (such as files and lines of code in Linux).

7.

Please describe, in detail, each instance in which plaintiff alleges that IBM engaged in unfair competition, including but not limited to: (a) the dates on which IBM allegedly engaged in any unfair competition; (b) all persons involved in the alleged unfair competition; and (c) the specific manner in which IBM is alleged to have engaged in unfair competition including but not limited to as alleged in ¶ 118 of the Complaint.

SCO’s Response and Objections: “In addition to the foregoing general objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly with the knowledge of IBM. Subject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order. These acts include improper use of the Software Products and modifications and derivative works of the Software Products in a manner exceeding the scope of the license. Such acts include, but are not limited to, contributions of the modifications and derivative works to Linus Torvalds and/or others in the open source community.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information, SCO misplaces reliance on Rule 33(d), and its general, narrative response is essentially meaningless.

SCO's reliance on Rule 33(d) is improper because (1) IBM cannot derive or ascertain from the documents SCO has produced the particulars of each instance in which SCO alleges that IBM engaged in unfair competition; (2) the burden of deriving or ascertaining the answer to this interrogatory from the documents SCO has produced is not substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the answer may be ascertained.

SCO’s narrative response is essentially meaningless because it (1) is expressly
non-exclusive; and (2) includes no more particularity than the vague allegations of the complaint.

SCO should be required immediately to
describe, in detail, each instance in which plaintiff alleges that IBM engaged in unfair competition, including but not limited to:

(a) the dates on which IBM allegedly engaged in any unfair competition; (b) all persons involved in the alleged unfair competition; and (c) the

specific manner in which IBM is alleged to have engaged in unfair competition, such as by (i) line-for-line copying of code from System V to Linux kernels 2.4+, (ii) copying, posting, removing legal notices or reorganizing the order of programming structures; (iii) contributing modifications of System V to Linux kernels 2.4+ in violation of contracts; and (iv) making non-literal transfers of methods, structures and sequences from System V to Linux kernels 2.4+; and (d) the location of each portion of the identified code in any product, in Linux, in open source, or in the public domain -- identified by file and line of code.

8.

Please identify all agreements with which plaintiff alleges IBM interfered and describe, in detail, each instance in which plaintiff alleges or contends that IBM interfered with those agreements, including but not limited to:

(a) the date of alleged interference; (b) all persons involved in the alleged interference; (c) the specific manner in which IBM is alleged to have interfered with the agreement; (d) the specific actions, if any, that IBM induced or encouraged plaintiff's customers or licensees to take;
(e) the specific action, if any, that plaintiff's customer or licensee took as a result of the actions allegedly induced or encouraged by IBM; and (f) the specific trade secret or confidential or proprietary information, if any, involved in the alleged interference.

SCO’s Response and Objections: “In addition to the foregoing general objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. Subject to and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d) and does not even undertake a narrative response.

SCO may rely, in part, on Rule 33(d) to satisfy its obligation to respond to this interrogatory. But SCO goes too far. The production of documents may be sufficient to identify all agreements with which SCO alleges IBM interfered, but it is plainly insufficient to describe, in detail, each instance in which SCO alleges or contends that IBM interfered with those agreements. With respect to that information, SCO’s reliance on Rule 33(d) is improper because (1) IBM cannot derive or ascertain the information from the documents SCO has produced; (2) the burden of deriving or ascertaining this information from the documents SCO has produced is not substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which the answer may be ascertained.

With respect to each agreement identified in response to this interrogatory, SCO should be required immediately to specify (a) the date of alleged interference; (b) all persons involved in the alleged interference; (c) the specific manner in which IBM is alleged to have interfered with the agreement (e.g., by “literal copying” or “non-literal transfers”); (d) the specific actions that IBM included or encouraged SCO's customers or licensees to take; (e) the specific action that SCO's customer or licensee took as a result of the actions allegedly induced or encouraged by IBM; and (f) the specific code (identified by file and line of code), if any, involved in the alleged interference.

9.

Please identify all agreements that plaintiff alleges or contends that IBM has breached, including the specific provisions or portions of those agreements that plaintiff alleges or contends that IBM breached, and describe, in detail, each instance in which plaintiff alleges or contends that IBM breached those agreements, including but not limited to
(a) the date of the alleged breach; (b) all persons involved in the alleged breach; and (c) the specific manner in which IBM is alleged to have breached the agreement.

SCO’s Response and Objections: “In addition to the foregoing General Objections, SCO notes that discovery has just begun and it has not yet received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. Nonetheless, at this time, as detailed in the Amended Complaint, among the provisions the Software and Sublicensing Agreements that IBM breached are Sections 2.01, 2.05, 4.01, 6.03 and 7.06, of the Software Agreement. Section 2.01 was breached by IBM’s failure to treat modifications and derivative works as part of the original Software Product by contributing such items to open source. Likewise, IBM breached Section 2.05 by allowing use for others and by others as a result of contributing the Protected Material to open source. Section 4.01 prohibits export of the Software Products, which IBM breached by contributing the Software Product, including methods, modifications and derivative works to open source. As a result, persons anywhere in the world with a computer can access this information, including in countries that the federal government prohibits dissemination of such information. IBM breached Section 6.03 by continuing to use the Software Products after the license was terminated on June 13, 2003, as well as failing to return or destroy all Software Products after that date. IBM also breached Section 7.06 by failing to maintain in confidence the Software Products, as that term is defined in the agreements. IBM also breached a subsequent agreement that IBM would not use System V or AIX in any open source operating system. IBM also breached §2.1 of Amendment X by using the Software Products for its contractors, including OSDL and other Linux development laboratories and Linux developers for other than Authorized Purposes. IBM also breached §6 of Amendment X by using the Software Product for an unauthorized use and distribution of Linux without paying the required additional royalty amounts.”

SCO has agreed not to withhold responsive information based upon its objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d), and its general, narrative response is essentially meaningless.

SCO may rely, in part, on Rule 33(d) to satisfy its obligation to respond to this interrogatory.
But SCO goes too far. The production of documents may be sufficient to identify all agreements that SCO alleges or contends that IBM has breached, but it is plainly insufficient
to describe, in detail, the specific provisions or portions of those agreements that SCO alleges or contends that IBM breached and each instance in which plaintiff alleges or contends that IBM breached them. SCO's reliance on Rule 33(d) is improper because (1) IBM cannot derive or ascertain this information from the documents SCO has produced; (2) the burden of deriving or ascertaining this information from the documents SCO has produced is not
substantially the same for IBM as for SCO; and (3) SCO has not provided a specification in sufficient detail to permit IBM to locate and identify, as readily as SCO, the records from which this information maybe ascertained.

SCO's narrative response is essentially meaningless because it (1) is expressly
non-exclusive; and (2) includes no more particularity than the vague allegations of the complaint.


With respect to each agreement SCO identifies in response to this interrogatory, SCO should be required immediately to identify the specific provisions or portions of those agreements that plaintiff alleges or contends that IBM breached and, with respect to each such provision or portion, describe, in detail, each instance in which plaintiff alleges or contends that IBM breached those agreements, including but not limited to (a) the date of the alleged breach;
(b) all persons involved in the alleged breach; and (c) the specific manner in which IBM is alleged to have breached the agreement, such as by (i) line-for-line copying of code from
System V to Linux kernels 2.4+, (ii) copying, posting, removing legal notices or reorganizing the order of programming structures;
(iii) contributing modifications of System V to Linux kernels 2.4+ in violation of contracts; and (iv) making non-literal transfers of methods, structures and sequences from System V to Linux kernels 2.4+; and (d) the location of each portion of the identified code in any product, in Linux, in open source, or in the public domain -- identified by file and line of code..

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 plaintif'’s claims and contentions and the general nature of, or the categories of, facts known by each person.

SCO's Response and Objections: “In addition to the General Objections, this question is overly broad and unduly burdensome in that it seeks information outside the custody or control of plaintiff by asking information known by plaintif'’s predecessors. Subject to and without waiving the General Objections and foregoing objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time the responsive documents upon the entry of an appropriate confidentiality agreement and order.”

Supplemental Response: In response to IBM's demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

IBM is not at this time moving to compel a response to this interrogatory.

11.

Please identify all products ever marketed, sold or distributed by plaintiff or plaintif'’s predecessors in interest, including but not limited to the terms on which each was marketed, sold or distributed.

SCO’s Response and Objections: “In addition to the General Objections, this question is overly broad and unduly burdensome and seeks irrelevant information by requesting all products ever marketed, sold or distributed by plaintif'’s predecessors in interest, including but not limited to the terms on which each was marketed, sold or distributed. Plaintiff's predecessors in interest include, for example, AT&T. A list of all products ever marketed, sold or distributed by AT&T would be filled with information wholly irrelevant to any issue in this action and, moreover, is not information known to plaintiff. Even limiting the request to items marketed, sold or distributed by plaintiff, the request remains overly broad because it seeks the terms of each sale or distribution. Such a request would require production of every invoice and such information is irrelevant and unduly burdensome to obtain. Subject to and without waiving these objections, pursuant to Fed.R.CivP. 33(d), SCO will make available for copying or inspection at a mutually convenient date and time sufficient documents identifying all products sold by SCO and the general terms on which they were marketed, sold or distributed upon the entry of an appropriate confidentiality agreement and order. The products sold include the following: [list of products]”

Supplemental Response: In response to IBM demand for more information, SCO stated, in a letter dated August 8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and 10-11] are the System V source code, the license agreements with all licensees, and the Linux 2.4 kernel”.

IBM is not at this time moving to compel a response to this interrogatory.


  


The Missing Interrogatories 10 and 11 | 178 comments | Create New Account
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THANK YOU
Authored by: OK on Saturday, December 06 2003 @ 08:41 PM EST
WOW! Thank you guys - that's great to be able to see it put together.

[ Reply to This | # ]

Affidavits
Authored by: Anonymous on Saturday, December 06 2003 @ 09:01 PM EST
So what happens now if SCO submits an affidavit that they tried hard, but they
cannot come up with any answers until IBM shows them everything they asked for
(all the 40 million pages)?

[ Reply to This | # ]

  • Affidavits - Authored by: Jude on Saturday, December 06 2003 @ 09:07 PM EST
    • Affidavits - Authored by: pooky on Saturday, December 06 2003 @ 11:33 PM EST
    • Affidavits - Authored by: J.F. on Sunday, December 07 2003 @ 01:08 AM EST
      • Affidavits - Authored by: Anonymous on Sunday, December 07 2003 @ 02:10 AM EST
      • Affidavits - blacklight - Authored by: Anonymous on Sunday, December 07 2003 @ 05:40 AM EST
        • Affidavits - Authored by: cjlew on Sunday, December 07 2003 @ 02:41 PM EST
      • Affidavits - Authored by: Jude on Sunday, December 07 2003 @ 11:14 AM EST
    Groklaw in the Press Again
    Authored by: penfold on Saturday, December 06 2003 @ 09:13 PM EST
    I just found this on a Good Morning Silicon Alley article. I'm not sure if anyone else has noticed it, so I thought I would mention it.

    Note to IBM attorneys: Do yourselves a favor and go read Groklaw: Found over on Groklaw is some rather interesting investigative research that suggests SCO willingly contributed to the development of enterprise-enabling features of Linux. Groklaw's report is far too detailed to outline here, but it's great reading for anyone interested in the SCO/IBM debacle, particularly IBM's legal team.
    Keep up the good work Pj... :)

    ---
    I'm not kidding, that boy's head is like Sputnik; spherical but quite pointy at parts! He'll be crying himself to sleep tonight, on his huge pillow.

    [ Reply to This | # ]

    The Missing Interrogatories 10 and 11
    Authored by: fjaffe on Saturday, December 06 2003 @ 10:12 PM EST
    I am kind of surprised that IBM did not move to compel on Interrogatory 9. I think SCO may be right (first time for everything), in that Interrogatory 10 was overbroad and should be limited in scope to the products under dispute (e.g. UNIX and LINUX related offerings).

    With the appropriate limitation to this interrogatory, and with SCO still apparently not having provided any responsive answers, I wonder if IBM will move to compel on these, either in the Wednesday submission, or sometime before the first thirty days expire.

    [ Reply to This | # ]

    Slightly OT but I thought readers would enjoy
    Authored by: pooky on Sunday, December 07 2003 @ 12:17 AM EST

    Found this tidbit at vunet researching old Darl McBride interviews. I'm trying to compile a complete list of public statements regarding what McBride has said as they relate to what SCOG has claimed in their legal docs.

    6/30/2003

    http://www.vnunet.com/Analysis/1141929

    W ell, not necessarily. We have been pretty assertive and pretty aggressive and we are going to continue that. So as we move into discovery this will be very nice for us, because now we get to go in and talk to all their people, their customers. We get to really shake things up and find out what really is going on over there. Now, by going into pre-discovery, we have strong enough claims. We'd be fine to go to court just on what we have before discovery.

    Darl McBride states in this article unequivocally that SCOG has enough evidence to take IBM to court. How is it then that they require IBM's discovery before they can detail to IBM what SCOG has already made a claim of?

    -pooky

    ---
    SCO FUD = Faux SCUD?

    [ Reply to This | # ]

    Another amendment regarding copyright violations
    Authored by: Anonymous on Sunday, December 07 2003 @ 03:04 AM EST
    1. Could somebody try to explain how the filing of yet another amended
    complain is going to affect the time line?

    2. Can SCO simply drop certain parts of the original complaint and say:
    its not trade secrets any more, its copyrights now. Thus we do not have
    to answer the interrogations. Lets just start all over with a different
    perspective and do discovery all over again?

    [ Reply to This | # ]

    Funny quotes problem again
    Authored by: Anonymous on Sunday, December 07 2003 @ 03:28 AM EST
    INTERROGATORY NO. 10: ... each of plaintiff?s claims for ... (... of plaintiff
    or plaintiff?s ...) ... relating to plaintiff?s claims ...


    INTERROGATORY No.11: ... by plaintiff or plaintiff?s predecessors ...

    [ Reply to This | # ]

    The Missing Interrogatories 10 and 11
    Authored by: Anonymous on Sunday, December 07 2003 @ 03:40 AM EST
    Just curious, and a little off-topic..
    What is happening in the RedHat case, and has any of the recent IBM case events
    had any effect on the RedHat case?

    [ Reply to This | # ]

    What if IBM was behind it all?
    Authored by: Drew on Sunday, December 07 2003 @ 04:52 AM EST
    <tinfoilhat on>
    Have any of you ever wondered what if IBM was behind this case? In a
    truely Milo way bombing their own runway/getting someone to sue
    themselves?

    "Why the hell would they do *THAT*?!" you ask.

    "What a stupid internet conpiracist freak!" you think.

    Please bear with me for a second:

    The First Rule: A publically traded company exists for one reason only:
    to make profit for shareholders. If that is not its primary goal it will
    not be in business for long. Remember "The Dentist" from
    Cryptonomicon is all I have to say to that.

    No company is ethical as such. Being perceived as benevolent/ethical/
    environmentally conscious/insert positive adjective here is just one
    method to gain profit.

    Chemical companies didn´t reduce pollution because they wanted to,
    they just found it with harsher laws and penalties it was cheaper than
    being sued. That with recent legislation/governments companies are
    waking up to the fact that it´s even cheaper to get your own laws
    passed is another point entirely.

    IBM isn´t contributing to linux because they say "Hey, this is a cool
    thing that´ll save the planet, let´s join". It is one way they perceive to

    make money.

    "OK, we follow you so far, but what does that have to do witht he case
    in point?" you ask.

    Well, then let´s practice what we preach to find out the real culprit and
    follow the money! Some benefits IBM gains from this lawsuit:

    -Publicity and goodwill. Money couldn´t buy this. No advertising
    campaign no matter how well funded could have this grassroots effect.
    IBM has been transformed into the poster child for every geek, there´s
    a huge amount of goodwill in the OS community towards them where
    there was a lot of guardedness before. Not even talking about how
    often they get mentioned in the press. Doesn´t matter what they write
    about you as long as they do write about you.

    -Keep up the toughguy image of the 800 lb gorilla. Don´t mess with
    IBM or else. This case it the courtroom equivalent of a military parade
    or a public mob hit. "Look how our ninja attack lawyers destroy the
    opposition, don´t mess with us or it´ll be you next!"

    -Keep the lawyers in practice. Give them something to do and practice
    to keep their skills honed. (of course they´re *not* in on the plot!)

    -Diversion, e.g. from those *other* cases currently in court against IBM
    where they do not come off as the shiny knight like the one about
    unsafe work practices and using cancerous chemicals.

    -Get MS in trouble. They know us, they know the kneejerk reaction
    that it´s all a conspiracy. And they know who we all think is the dark
    power behind it all: Microsoft. Keeps us occupied, keeps us focused on
    the "one true enemy" and makes us flock to buy from "good
    IBM".

    -Picking up the pieces. After the smoke has cleared, pick up what´s
    left of the unix rights and assorted other jewels that might be found in
    the rubble.

    A more paranoid mind than mind can surely come up with more
    reasons...

    It´s often been said that it´s not SCO as such doing the case, just the
    top management actually controls what´s going on. How often has it
    been suggested that after the case they´ll find nice jobs with MS? Well,
    an anonymous multi-million dollar contribution by IBM to an account
    on the Cayman Islands could be the convincing argument to get this
    thing started...

    "OK, you´ve convinced me! Help! How can I be safe, whom can I
    trust?"
    you now ask. The first step might be to turn to good old linux of
    course:

    http://tinfoilhat.shmoo.com/

    Remember, you heard it from me first, and if I don´t post in the next
    couple of days IBM might have gotten me whacked to keep me silent.


    The only question that remains: "Is PJ in on it?"


    OK, I´ll go and take my medication now...

    <tinfoilhat off>

    Disclaimer:

    Do I believe the above? Not really. Would I put it past IBM or any other
    large company/goverment? Not really, if they were sure to get away
    with it.

    I know this is off-topic, sorry for that, but I think it´s worthwhile to
    look at things from different angles. The best way to learn about your
    home country is to travel abroad. I´ve noticed that the "mindset" on

    Groklaw has become relatively, I don´t know, identical, though that´s
    not the right word. I wouldn´t call it slashdot-like, but it´s going
    there. People are just too agreeable, and no, this is *not* a call for
    trolling.

    During the week I don´t have time for this (I´ve been thinking about
    the post for some time) so I had to do it on a weekend, sorry.

    Drew

    [ Reply to This | # ]

    OT: Media coverage & PR strategies
    Authored by: MacUser on Sunday, December 07 2003 @ 10:41 AM EST
    There are intriguing parallels between SCO v IBM and a lawsuit taken against
    Apple in 1998 by a company called Imatec. Although the legal issues were quite
    different, the media/PR strategies are eerily similar.

    1. Imatec got the media's attention when it demanded $1.1 billion initially,
    subsequently warning that the damages could rise to three times that.

    2. Imatec conducted its campaign in the media, with a succession of
    ever-shriller press releases. Apple issued only a few terse statements.

    3. Imatec reportedly sent cease-and-desist letters to end users.

    4. Imatec raised the ante by warning that a court victory for them would
    "seriously impact (Apple's) business."

    5. Mainstream news sites were perceived as reporting Imatec's claims with a
    lack of skepticism.

    Imatec's bubble burst in January 2000, when a judge threw the case out. Imatec
    appealed, but lost.


    6. Imatec's claims were proved baseless, yet had been disseminated even on
    sites sympathetic to the Mac platform. There is no need for conspiracy theories
    to explain the media coverage of SCO's claims; journalists simply cannot turn
    down a sensational allegation:)

    IANAL, but I have worked as an online editor on a technical news site.

    MacUser

    Some links to the Imatec affair:

    http://www.techweb.com/wire/story/macatya/TWB20000127S0002)

    http://www.findarticles.com/cf_dls/m3563/6_15/54483167/p1/article.jhtml

    http://www.macobserver.com/columns/appletrader/98/december/981222.html

    http://www.theregister.co.uk/content/39/20812.html

    [ Reply to This | # ]

    Question about Missing Interrogatories 10 and 11
    Authored by: cbc on Sunday, December 07 2003 @ 11:55 AM EST
    IANAL so this is my question. If IBM accepts SCO's response to Interrogatories
    10 and 11, is SCO then limited in some way from producing evidence in court from
    another release of Unix, say BigBux 3.4 or a license with SpecialCo which has
    different terms from the all-users license specified in the response?

    [ Reply to This | # ]

    Google News responses to SCO FUD
    Authored by: Thomas Frayne on Sunday, December 07 2003 @ 12:39 PM EST
    On Friday, I mentioned that some of the responses to SCO's FUD have started appearing inline with the original FUD article. I was asked for a reference, but did not find the request until today. I was unable to pinpoint the article I was referring to, but here are some links to similar articles:

    A bad week for the SCO Group
    SCO's antics get slapped down
    SCO Group Launches Broadside Against GPL
    SCO's McBride sounds off in Linux legal battle
    SCO CEO Fires First Shot At Open Source


    [ Reply to This | # ]

    Where did the press get their info?
    Authored by: Anonymous on Sunday, December 07 2003 @ 01:04 PM EST
    I have started to see press reports about Magistrate Wells's ruling.

    My questions is, since the press was not in attendence, where did they get their info? Did they just swipe it from Groklaw without attribution?

    [ Reply to This | # ]

    SCO's Subpoenas
    Authored by: PM on Sunday, December 07 2003 @ 01:31 PM EST
    SCO's subpoenas to Linus etc have been in the background at present.
    Presumably they will respond to the easy and inoffensive stuff, but will resist
    the parts that require alot of work to put together.

    If the Court has stayed SCO's discovery requests to IBM, then presumably the
    Court would do the same for Linus and co in the circumstances if asked. SCO is
    obviously not entitled to fish via these subpoenas.

    [ Reply to This | # ]

    OT: The SCO Group Will Now Report Fiscal 2003 Earnings on December 22, 2003
    Authored by: markus on Sunday, December 07 2003 @ 01:50 PM EST

    SCO just moved the date from the 5th to the 22nd.

    (See http://ir.sco.com/Re leaseDetail.cfm?ReleaseID=123984)

    The offcial reason is that the 50 million investment they received was complicated to book correctlky and the hired external experts needed more time.

    Markus

    ---
    Markus Baertschi, Switzerland

    [ Reply to This | # ]

    TSG os pushing its earnings report back some more
    Authored by: Anonymous on Sunday, December 07 2003 @ 02:04 PM EST
    I am not quite sure if anybody has seen this:
    TSG is delaying their earnings report:
    http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=123984

    Rumor has it, that the Baystar deal wasn't well put in TSG's books. I refer
    to:
    http://www.heise.de/newsticker/data/anw-07.12.03-004/

    Heise is on of the most important german IT-Newssites. They are linking back to
    Groklaw as a reference. Quite an honour. They are also linking to sco.com, but
    it's about sco, so they better do.

    Anyways, great work you all. PJ I am standing in awe.


    Florian

    [ Reply to This | # ]

    OT: RBC Financial Linked to Enron
    Authored by: Anonymous on Sunday, December 07 2003 @ 02:07 PM EST
    Here is an extremely interesting news item about RBC Financial group (one of the companies behind the $50 million "investment" in SCO) being linked to Enron.

    A report by court-appointed Enron examiner Harrison J. Goldin alleged that bank employees acted inappropriately by doing deals the bank knew were intended to mask the failed energy trading company's true financial state.

    Sound familiar?

    [ Reply to This | # ]

    OT: Perhaps, Boies wasn't paid?
    Authored by: Anonymous on Sunday, December 07 2003 @ 04:04 PM EST
    Perhaps, only perhaps, ...

    There would be one very simple explanation, why Boies did not
    show up in court. - He has not been paid.

    Given the amount of false announces that SCO has issued
    already and its desperate situation, this scenario might not be
    too unlikely.

    Especially, as their financial report has been delayed and the
    delay has been brought in connection with the payment to Boies
    (see http://www.heise.de/newsticker/data/anw-07.12.03-004/).

    So what might have happened is that Boies, Schiller & Flexner
    have only been promissed the demanded money and stocks, but
    did not actually receive them, and now are pressing on SCO by
    leaving Darl in the lurch.

    If so, Darl hasn't had much choices but to ask his (big?) brother
    Kevin (alone in the court) for help. If so, the situation of SCO in
    general and Darl's in particular would be ways more desperate,
    than we currently imagine.

    Anyway, assuming that Mr. McBride, Boies, Bill, Deutsche Bank,
    and all the other actors are sitting in the same boat is certainly
    not true. They all have their own purpose, and that's not SCO.

    Perhaps, only perhaps, some of them might have realized by
    now, that Darl has defrauded them and chances to win anything
    on his side are few and they're starting to dissociate themselves
    already.

    A turn of the story so hard to imagine because so unfortunate
    for SCO is that Boies will officially resign from his mandate in
    near future "for personal reasons".

    But this is all spin - isn't it?

    [ Reply to This | # ]

    OT: Question regarding the judgement...
    Authored by: Anonymous on Sunday, December 07 2003 @ 04:26 PM EST
    As I understand it, SCO has been claiming that any code IBM adds to AIX becomes
    a derivative work, which is covered by their contract for Project Monterey, and
    thus that same code can't be contributed to Linux. SCO has claimed that, as a
    result, they need to receive the AIX source code in order to identify at least
    some of the alleged violations.

    Here's the question:

    Since the judge told SCO that they must identify the code violations _without_
    further information from IBM, does that mean that the judge has rejected SCO's
    claim over additions to AIX? In other words, can we surmise that has the judge
    has accepted IBM's interpretation of the contract and its addendums?

    [ Reply to This | # ]

    Recent queries about Kevin Mcbride
    Authored by: sam on Sunday, December 07 2003 @ 06:29 PM EST
    Saw this:

    http://www.eweek.com/article2/0,4149,1405711,00.asp

    Kevin McBride, according to West Legal Directory, has a private practice in
    nearby Park City, Utah, where he specializes in litigation and appeals, not
    corporate-contract or intellectual-property law.

    [ Reply to This | # ]

    Sun to sell Desktop Linux option
    Authored by: sam on Sunday, December 07 2003 @ 06:34 PM EST
    Is this bad?

    http://news.google.com/url?ntc=0M4B0&q=http://www.stuff.co.nz/stuff/0,2106,2
    743532a28,00.html

    It's sorta what I've been looking for to break the surly bonds of dos. (nod to
    phrostie)

    [ Reply to This | # ]

    Some media picking up the story
    Authored by: sam on Sunday, December 07 2003 @ 06:41 PM EST
    Some media has started to pick up the story. What's their source?

    You guessed it. Groklaw!

    http://www.line56.com/articles/default.asp?ArticleID=5208

    The ruling was seen as a boost to open source advocates who feel SCO has been dragging its heels and looking for a settlement of its claims. The court granted two IBM motions, requiring SCO to comply with specificity and also suspended further discovery, according to interrogatories filed at open source advocacy weblog groklaw.net, which tracks the SCO case.

    [ Reply to This | # ]

    Suse not Redhat
    Authored by: Anonymous on Sunday, December 07 2003 @ 08:36 PM EST
    I incorrectly stated that the mainframe Linux distribution was Redhat. It is
    SuSe.
    I also appreciate the comment about OS/2. IBM with the PS/2 and OS/2 wanted to
    take the PC proprietary. While both may have been technologically superior
    (opinions vary), both are history. IBM learns from it's competition, works with
    them when necessary, and is in the game for the long term.

    [ Reply to This | # ]

    The Missing Interrogatories 10 and 11
    Authored by: Kevin on Monday, December 08 2003 @ 12:06 AM EST
    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.

    Let's just work through some hypotheticals here.

    Really, this hearing on the motions was not that big a deal. Anyone would realize that compelled discovery in this situation was a slam dunk. IBM has every right to a detailed accusation. So now SCO has to come up with a detailed accusation, producing either the disputed code or an affidavit certifying that that it can't be produced and giving the reasons why..

    It seems to me that SCO's next step is to submit such an affidavit certifying that it cannot answer at least Interrogatory No. 1. The next big - and more important - argument will come over the arguments advanced in the affidavit. Let's assume that SCO simply decided to abandon the initial wrangling over discovery and that brother Kevin (NOT ME! NOT ME! Yes, my name is Kevin, but my family name is not McBride!) was there so that SCO was not "failing to appear." Instead, let's focus on the bizarre chain of legal reasoning that SCO seems to pursued up until now, presumably that SCO's affidavit will advance it as an argument before the Court:

    • The original license agreement that IBM executed had IBM agreeing to keep all additions to System-V confidential. (This isn't - strictly speaking - perjury, but arguably a difference of opinion about what the language of the contract requires.)
    • The "treat as part of" clause had IBM agreeing, as part of the consideration for the license to use System-V, to grant SCO (via its predecessors in interest) the rights in any of IBM's additions to Unix. (Again, this is arguably a difference of opinion - not a perjurious statement.)
    • That agreement made IBM's copyrights, patents, and trade secrets in AIX, and Sequent's in Dynix, equitably vest in SCO under the theory of Liu. Any patents or copyrights to the contrary were granted as a result at least of improper disclosure by IBM and (if the consideration argument holds) as a result of improper claims to ownership, and are hence properly void. Since IBM had no right to disclose (and possibly no ownership interest in) any material integrated in any way with Unix, the GPL that it applied to that material was likewise void. (This point is nearly unassailable if we assume the first two. If IBM were actually a contractor of SCO, and it released software developed under the contract - under GPL or otherwise - attempted to patent or copyright the software, or claim the methods as its own trade secret, I would hope that SCO would have some equitable regress.)
    • SCO had no way of knowing, without discovery of the content of AIX and Dynix (to which IBM is inequitably claiming title), just what material IBM released under GPL improperly. SCO is consequently unaware of what trade secrets, copyrights, and patents equitably vest in it. SCO's own release of any disputed material under GPL is the result of its ignorance that material that IBM developed but improperly failed to transfer back to SCO was included in the release. SCO's release of Linux distributions is hence not evidence of unclean hands nor grounds for promissory estoppel. (The ice is thin here, but again there's nothing factual here on which you can hang SCO for perjury.)

    Whew! What a tangle! What a chain of flimsy links! Nevertheless, however bizarre, it's a legal theory. Wouldn't it appear that the question of whether or not IBM intended to enter into the indenture that would result from SCO's interpretation of the license agreements is a question for a jury to decide? Moreover, a great many of SCO's own statements in the press are arguably consistent with this theory (through similarly tortured reasoning); for instance, the claim of "millions of lines of literally copied code" could refer to "the entirety of IBM's contribution."

    My suspicion is that SCO plans to submit an affidavit saying that it is incapable of answering Interrogatory No. 1 and advancing this tortuous chain of reasoning. If Judge Wells were to give it the reception that it deserves (hysterical laughter comes to mind as one appropriate action), then SCO will immediately file an interlocutory appeal. This maneuvering would allow SCO a tremendous amount of additional time to make hay in the press while waiting for the appeal to get on the calendar of the Tenth Circuit.

    Judges don't like having their decisions appealed. The alternative, and what I suspect that the Court would do, is to say, "very well, SCO, that is your theory. Your discovery requests and your further filings must be consistent with that theory, and we'll let the jury decide whether it holds water." It'll result in SCO's case foundering on an even bigger rock later, but that doesn't matter to SCO, whose objective in this litigation is to harass, not to win.

    Someone please tell me that I'm wrong, that this bizarre chain of alleged reasoning can be snipped without needing to wait for the ponderous motion of the Circuit Court. Otherwise, this mess is going to drag on far beyond the original trial date in 2005.

    ---
    73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

    [ Reply to This | # ]

    Flashback - Darl sure got it wrong way back when
    Authored by: sam on Monday, December 08 2003 @ 12:37 AM EST
    Darl sure got it wrong then. Judge Wells sorta taught him a lesson in discovery and how it works. I wonder if he's disappointed.

    http://www.vnunet.com/News/1141808

    June 25, 2003

    The next action is really discovery, where we get a chance to go in and take a look at what has been going on at IBM.

    So as we move into discovery this will be very nice for us, because now we get to go in and talk to all their people, their customers. We get to really shake things up and find out what really is going on over there.

    Now, by going into pre-discovery, we have strong enough claims. We'd be fine to go to court just on what we have before discovery.

    In discovery you get to go in and investigate the things that relate to the case, and there are a broad range of things that relate to Linux and AIX. We will be going in with a fine-toothed comb and coming up with every detail.

    [ Reply to This | # ]

    HTML-Formatting
    Authored by: dluebke on Monday, December 08 2003 @ 03:48 AM EST
    Hi all!

    Thanks for this great chart... It makes following the case easier. However,
    could someone please add a top vertical-alignment (<td
    valign="top">) to the table cells? I have to scroll up and down a
    lot because of the center-alignment and that would fix this. Thanks and keep up
    the good work!

    [ Reply to This | # ]

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