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The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Thursday, December 11 2003 @ 11:53 PM EST

Here is the completed transcript as text of Friday's oral arguments in the SCO v. IBM lawsuit. You can get the PDF here. The most surprising statement is one by Kevin McBride, which I would never believe he had said if I were not reading it with my own eyes:

"The -- what we need to get our arms around collectively, on our side and on IBM's side, is a clear definition of what source code is at issue, what source code is potentially an infringement."

The only appropriate response to that is, "Amen, brother."

**************************************************
Salt Lake City, Utah, Friday, December 5, 2003, 10:00 a.m.
(Proceedings)

THE COURT: Good morning, ladies and gentlemen.

MR. MARRIOTT: Good morning, Your Honor.

THE COURT: Let's go forward in the matter of the SCO Group versus
International Business Machines Corporation. The record should reflect that
plaintiff SCO is represented today by Mr. Brent Hatch and Mr. Kevin
McBride. Defendant IBM is represented at counsel table by Mr. David
Marriott and Mr. Todd Shaughnessy.

Gentlemen, let me indicate, as we begin, that I have reviewed your
submissions, I have reviewed what I believe to be the pertinent case law in
this matter and I have reviewed the affidavit that was submitted by Mr.
Shaughnessy. And I've also taken note of the statements that are included
in the submissions which indicate that certain representations have been
made by SCO to the media.

Based upon my review of those items, I would tell you what my intention is
today so that we can then focus the argument towards that particular end.
As I've stated, and based upon my review of those items mentioned, it would
be my intention to grant defendant IBM's motion to compel answers as to both
sets of interrogatories, and to require plaintiff SCO to file responses to
these interrogatories or affidavits indicating that they are unable to do so
and why within 30 days of the entry of this order. I would further intend
on directing that IBM's responses should correct those deficiencies that are
set forth in the defendant's addendum which was filed on 11-4 of this year,
and that is to include answers to Interrogatories No. 12 and 13. Now, in
the interim, it would also be my intention to otherwise postpone all other
discovery until such filings have been and compliance has been achieved.

Let me ask counsel first, is there a protective order in place?

MR. MARRIOTT: There is a protective order.

MR. MCBRIDE: Yes, Your Honor.

THE COURT: All right, that answers that question then. All right, given
that as my intended plan today, then I would ask counsel to focus your
arguments as to why or why not I should not implement that plan.

MR. MCBRIDE: Would you prefer that I go first, Your Honor?

THE COURT: Well, we --

MR. MCBRIDE: Mr. Marriott's pretty much got the day so far, it would
appear.

THE COURT: It's up to you, counsel. You both have matters. Maybe, Mr.
McBride, it does make some sense for you to go forward.

MR. MARRIOTT: That's acceptable, Your Honor.

THE COURT: All right.

MR. MCBRIDE: Thank you, Your Honor. Frankly, we can appreciate the
intention of the Court based on the submissions and understand the basis for
it. We think, Your Honor, however, that in a few minutes this morning we
can convince you that the more appropriate path is to follow a rule or an
outline of the rule in Rule 33 that basically says that because the issues
involved in this discovery involve a complex interplay between facts and
law, that instead of granting the motion, what the Court should simply do is
put the motion on hold until very specific discovery has been identified and
produced and then make a ruling. And before I address this -- yes, Your
Honor?

THE COURT: No. What I was going to say, Mr. McBride, is that in reviewing
all the submissions and reviewing the pertinent case law, it appears to me
that what is happening is somewhat circular in that defendant indicates that
it cannot answer plaintiff's interrogatories until plaintiff has identified
the source codes, et cetera, but the manner in which those have been
submitted make it, I believe, unduly burdensome on the defendants and so we
go 'round and 'round. And I find also that it appears to me that if there's
any argument to be made on the failure to confer under Rule 37 that -- that
there has been a good faith effort to comply, but that because we can't get
off the ground because of this circular problem, that I would not find that
a sufficient basis for, you know, further postponing.

MR. MCBRIDE: May I have a few minutes to try to convince you otherwise,
Your Honor?

THE COURT: Absolutely.

MR. MCBRIDE: All right. And I simply set this out at the beginning because
this is what I think we can convince you of in a few minutes this morning.
And what I think we can convince you of is that rather than entering an
order, what really should happen is specified discovery should be
identified, we should have time to take that discovery, then we should
revisit this and respond more fully to the interrogatories submitted by IBM.
Now, I would like to explain why.

This case, Your Honor, at a very fundamental level, involves infringement.
Infringement is a very broadly defined category in the law. It can include
copyright infringement, trade secrets infringement or plain old confidential
information that's taken without permission. Those are all very differently
defined areas of the law that all have very differently defined rules of
proof. The -- what we need to get our arms around collectively, on our side
and on IBM's side, is a clear definition of what source code is at issue,
what source code is potentially an infringement. Before we discuss whether
it's a trade secret or a copyright or anything else, the most important
thing is for both of us to come to grips with the universe of source code,
the documentation and methods and concepts that we believe are at issue so
we can argue about them. And once we have an understanding of what that
universe is, the very complex rules -- this is a complex case, Your Honor.
There's going to be some of this code and some of these methods that are
trade secrets, and some are going to be copyright and some are going to be
contract violations and some are going to be nothing. I submit, Your Honor,
that's the very first step that needs to take place before we start worrying
about whether there is trade secret burdens met or not met.

Certainly, Your Honor, the cases cited by the defendant in this case with
respect to trade secrets and the need to make some affirmative
representation of what those are, that makes complete sense. We have no
argument with that general proposition of law. What we are simply saying is
this case involves deeper level complexities than the cases cited by the
defendant. This is not the Muna case. This is not a case where we're
talking about identity of employee records or customer records that you
would normally see in a trade secrets case. This involves an
interrelationship between, as I said, copyright, trademark and contract law.

Now, Your Honor, I would like to proffer a case for the Court's review that
is a pretty well known case but it's not in our briefs. It is Sun against
Microsoft
, a Ninth Circuit case decided in 1999, and the reason -- would it
be appropriate to. . .

THE COURT: Certainly.

MR. MCBRIDE: The reason --

THE COURT: Excuse me, Mr. McBride.

MR. MCBRIDE: Yes.

THE COURT: Do you have an extra copy of that?

MR. MCBRIDE: Oh, sorry, Your Honor.

THE COURT: Hand it to Mr. Willey. He's the brains behind this operation.

MR. MCBRIDE: The reason this is an interesting case is because it
underscores the point that I just made to the Court. The -- there are some
paragraphs here worth reading, but the -- and I'll get to those in just a
moment. The case in Sun against Microsoft involved claims of
misappropriation of derivative works. A derivative work is a work that was
licensed from one party to another party, and then the other party made some
improvements to it. In copyright law that's a derivative work. And in the
Sun against Microsoft case, Sun licensed Microsoft its Java technology,
Microsoft made a bunch of changes to it, which is derivative work, and then
there was an argument about how that should be used.

The reason this is an important case and an interesting case is the Court
goes right to the issue of -- that we are -- this particular case is in the
intersection between contract law and copyright law that is a frontier,
literally, of judicial interpretation. Even for the Ninth Circuit in 1999,
this was deemed a case of first impression insofar as identifying the
interrelationship between contracts and copyrights. That -- and the
language in this case, for example, if I could turn the Court's attention to
page 5. It's not 5 in the case. It's five on the printed page up in the
upper right-hand corner. I simply would like to read a little language to
underscore the points just made. In the bottom left-hand corner, the Ninth
Circuit, upon review of the issues, says, in affect, five lines up from the
bottom of the page, We agree with Microsoft that the issue turns upon
whether the terms Microsoft allegedly breached were limitations on scope of
the license, which would mean there is copyright infringement by acting
outside the scope, or whether the terms were merely separate contract
covenants, which would make this a contract dispute.

Now, the Court -- the Ninth Circuit goes on, and I'll ask the Court to
kindly turn to page 6, the following page, for additional highlighting. The
bottom right-hand corner at the very -- at the top of the sentence, the Ninth
Circuit continues to explain, Whether this is a copyright or a contract case
turns on whether the compatibility provisions help define the scope of the
license.

And one last reference I would like the Court to consider, and then I'll
leave this case, is further on page 7, bottom left-hand corner, picking up
in headnote no. 8, The enforcement of a copyright license raises issues
that lie at the intersection of copyright and contract law, an area of law
that is not yet well developed. We must decide an issue of first
impression, whether -- and the Court goes on to explain what the issue of
first impression is. Essentially, it has to do with licensing a derivative
work, whether it's a copyright or contract case and what are the issues that
flow therefrom.

Now, Your Honor, we would submit that if this was a case of first impression
for the Ninth Circuit, it underscores -- this is an undeveloped area of law
that turns on issues of law and fact and they're intertwined. That's
getting us back to the Rule 33 question that we were making.

I would like to give the Court a little bit of the background of the
licensing relationship between our parties that relates to the Sun against
Microsoft
case.

May I move to that or does the Court have any particular questions?

THE COURT: Certainly. Go ahead.

MR. MCBRIDE: Thank you. May I put up a chart here?

THE COURT: If you can find a place to put that chart up, go for it.

MR. MCBRIDE: I'll tell you what I have.

MR. WILLEY: We have an easel right here if you want, sir.

MR. MCBRIDE: Would you mind. . .

THE COURT: We are spacially challenged. We just do the best we can.

MR. MCBRIDE: Well, that's all right.

THE COURT: And, counsel, if you wish to move around --

MR. MCBRIDE: Your Honor, I have a smaller, obviously --

THE COURT: Nonetheless, feel free and you need not ask permission to move,
even up behind the bench area if you wish to in order to be able to see.

MR. MCBRIDE: May I, Your Honor?

THE COURT: Yes. Certainly.

MR. MARRIOTT: Thank you, Your Honor.

MR. MCBRIDE: This case is an interesting and important case because it
involves, really, the genesis of computer software for large corporations.
You can judge somewhat by the fact that we have a variety of people in the
audience here, none of whom, I believe, are affiliated with either party,
but are people who have general interest in the area. And that really
speaks to this issue, Your Honor.

In the beginning of the corporate software world, there was AT&T. AT&T
created Unix. Unix is the corporate operating system of choice that all
corporations use at the Fortune 1000 level and significantly below that. It
just works better than Microsoft Windows when you have a large distributed
environment. So companies have used Unix for 20 years or more. AT&T made
all this stuff.

Then AT&T wanted to create larger markets for it and
licensed Mr. Marriott's client, IBM, and a number of other companies,
Hewlett Packard and all those large software vendors, allowing each company
to create its own derivative work based on top of Unix. And so, thus, we
have in the chart, Your Honor, in the upper left-hand side just a really
description that points out that IBM software product that we're trying to
get produced in this case and that is at issue in this case is part stuff
that came from AT&T and part stuff that it made by itself. The derivative
work is stuff it made by itself.

Now, under the contract with IBM, and now SCO -- actually, we have two roles
in this relationship, but in the particular law I'm talking about now SCO's
in the shoes of AT&T. We have acquired all of AT&T's rights of license
and copyrights relating to Unix. And so we now have a situation where the
contract we have with International Business Machines provides the
following, in the scope clause, the clause that the Court in Sun against
Microsoft
addresses, the scope clause was really the clause that identifies
what you can use the software for. It is the heart of the intended and
allowed use for the software. The scope clause of our license, that is to
say AT&T -- SCO's license to IBM says the following: You may use this
software product. You may modify it. You may create derivative works based
thereon provided that your derivative works are treated as part of the
original software product.

Now, Your Honor, that becomes a very interesting question. Is that a
contract interpretation that this Court will ultimately have to make? Is it
a copyright issue? But the bottom line is this, IBM is obligated to maintain
some confidentiality under some law, copyright, contract and trade secrets,
with respect to not just the Unix that licensed -- was licensed from AT&T
but also the derivative work that IBM created on top of that. IBM owns the
derivative work. We don't contend anything to the contrary. But what we do
contend is that we have a license agreement that says even though you own
your derivative work, you don't own Unix, you don't own the stuff we
licensed to you and you can't use your stuff in ways that violate our
license scope. And our license scope says the following: You have to use it
for internal business purposes only. You cannot use it for the benefit of
others. You can't let others use it for their benefit. You can use it for
yourself. You can make money on it. You can license it. And that's what
its intended use is, but the second you step outside that license scope and
you use this for other people, you've violated the scope of this license.
That's what this case is rooted in, fundamentally. That's the beginning
point of this case, Your Honor.

Now, that leads us to a very interesting point. Do we have again -- and
I'll only do this once more and I won't repeat it after that -- do we then
have a contract case? Do we have trade secrets? Do we have confidential
information which is neither a trade secret or a copyright? And if so, what
proportion do those fall out or shake out in and how is the Court going to
deal with that? Your Honor, that is precisely the interrelated issue of law
and fact that ought to be addressed appropriately under Rule 33 and should
not -- should not be allowed -- this discovery needs to be framed -- in the
Court's wisdom and appropriate oversight, this discovery needs to be framed
in a way that allows us to identify just first what is all this stuff that
IBM put into Linux? And I'll explain this in just a minute. We will need to
identify all the -- everything that's at issue before we start giving it a
legal label. That's why this Rule 33 ruling that we are requesting is
appropriate in this case.

Now, we go to the question of, okay, IBM licensed a software. What's
this -- and agreed, you know, that they would keep it confidential and they
wouldn't use it for other people and would only use it internally. What
those words mean, Mr. Marriott and I or other lawyers are going to be
arguing about ad nauseam. That should not be the inquiry today. We know --
and the reason this case got launched in the first place, we know IBM gave a
lot of source code, development methods and sequences of source code usage
into Linux. Linux is a free operating system that's distributed free of
charge and is literally undermining, totally, the entire operating system
environment for Unix users in the corporate world of Fortune 1000 and
thereabouts. And Linux, as I'm sure the Court knows from general knowledge,
is developed under an open source model where many people contribute, many
people make wonderful improvements. And, again, I'm willing to guess that a
number of the people in the audience are probably software developers who
have a very intense interest in this case being decided rightly, because
there are many people who like the Linux model, like participating in a
community and -- a development community, and that's kind of a big issue
that's underlying this case.

We don't have issue with the non-infringement part of it. This particular
case has to do with IBM's infringement. IBM, by its own admission -- and
what I would like to do, if I may, Your Honor, just so you know I'm not
making this stuff up, or at least I am not making it up new, because there
are numerous references in the complaint that I think are appropriate to
just generally address. I'm sorry. This is my copy. If you don't mind
I'll trade you.

THE COURT: Have you got two? Give them to me, please.

MR. MCBRIDE: Yes, Your Honor.

Now, where we are so far, in at least my line of reasoning, is I want to
walk the Court through enough of our complaint to help the Court understand
that IBM clearly did contribute a lot of the Unix-related information into
Linux. We just don't know what it is. And I would refer the Court, to
start with, to paragraph 51 -- no. I'm sorry. We are going to back track
to that -- paragraph, please, 95. Actually it's 96. Now, the reason I'm
using this complaint is we've included in the complaint news articles
published about IBM's contributions into Linux and quotes attributed to IBM
about its involvement into Linux. So we're not guessing here. We're not
making this story up that IBM has put a lot of Unix information into Linux.
IBM had told everybody they've done that.

THE COURT: But isn't SCO also saddled with, for lack of a better term,
having made public statements itself concerning this case? I mean, it's not
just IBM making comments about the contributions to Linux.

MR. MCBRIDE: Right.

THE COURT: Isn't it also SCO making comments about trade secrets and what it
would show in court?

MR. MCBRIDE: There is -- yes. Certainly.

THE COURT: I guess, Mr. McBride, my only concern about this is I
acknowledge that this is here, but I want to focus you back on to the
question of whether or not motions to compel should be granted.

MR. MCBRIDE: Well, if the Court wouldn't mind, I'll try to hurry up my
chain of reasoning here that I think gets me to where I think the
appropriate ruling is and I'll try to do it more quickly. If I might, just
very briefly, in paragraph 96, there's a quote here attributed to an IBM
executive that for the purposes of this hearing certainly is sufficient for
discovery to go forward on the issue, that IBM admits -- and I've grown a
little older since I was last looking at this and need my glasses.

THE COURT: I understand.

MR. MCBRIDE: In the bold in paragraph 96, it simply says, While they admit
Linux has a long way to go before it can compete with the functions
available on many flavors of Unix --

(Whereupon, the reporter asked Mr. McBride to slow down.)

MR. MCBRIDE: I'm sorry. While they admit Unix still has a way to go before
it can compete with the functions available on many flavors of Unix, IBM
officials said Linux can prove more cost effective.

And the next paragraph says, We are happy and comfortable that Linux can
become the successor, not just for AIX but for all Unix operating systems.

Now, there's only one last quote I would like to refer to and that's in
paragraph 97, Your Honor. The quote was attributed to a senior executive
vice-president, Mr. Steven Mills at IBM, who in the bold stated in January
2003, IBM will exploit its expertise in AIX to bring Linux up to par with
Unix.

Then continuing in the bold only, Mills acknowledged Linux lags behind Unix
in scalability, SMP support, failover capabilities and reliability but not
for long. The pathway to get there is an eight-lane highway, Mills said,
noting that IBM's deep experience with AIX and its 250-member open source
development team will be applied to make the Linux kernel as strong as that
of Unix. The road to get there is well understood.

Now, SCO has made public statements about Unix and I'm not suggesting we
want a moratorium on all of these interrogatories. And perhaps what I
should do is address it in much more specificity right now. The things that
we have said, or that our executives have said, or quotes attributed to our
executives, we have to live with just the way IBM does, and we're happy and
willing to do that. But I believe, Your Honor, those issues are most
appropriately included in Interrogatories No. 12 and 13, and if I read them
correctly, where in Interrogatory 12 IBM requests all of the contributions
made by other people, not IBM, into Linux. And in paragraph 13 -- in
Interrogatory 13 IBM requests -- and I'm sorry. I may not be saying it
precisely right. But IBM wants the universe of all contributions made to
Linux inappropriately that we allege and then wants us to specify which of
those are attributed to IBM, and I think that's a fair characterization of
Interrogatories 12 and 13.

And, Your Honor, if you want us to answer those, Interrogatory No. 12, and
that appears to be a fair thing to do, we'll do that. We'll do that. It, to
us, appears that it's not part of this case, but if in fairness of putting
everything in front of this Court, we'll certainly do that.

I'm more focused on Interrogatories No. 1, 2 and 4 that IBM has submitted
to us, because those go to the heart of my arguments over here. We need,
Your Honor, to have Mr. Marriott produce all versions of AIX. We need them
to produce all the development notes of their developers from AIX. Then we
will have the capability of being able to compare what IBM's contributions
are lined up against our codes, and then we'll make a very clear
specification of where the violations are, and then we'll end up at that
point arguing about what kind of violations they are. This becomes really
important because of, we're back to now legal definitions, the Copyright Act
allows companies or any copyright holder to copyright expressions that are
written down on paper, expressions, including in the computer software world
sequences, structure and organization. The Copyright Act does not allow
anyone to copy a method or an idea or a concept. That's specifically
outside the realm of copyright law.

Well, back to the beginning, Your Honor, AT&T recognized this, and in the
Unix agreement that was licensed to everybody else, although IBM has its own
deal a little different, but Sequent has the standard agreement, IBM made
every company hold methods and concepts as confidential information,
recognizing that that was not protectable by copyright law, but they wanted
to make sure they had it in the contract law. So what I'm saying, Your
Honor, is if IBM will produce and answer our discovery, staying the
discovery I think will do tremendous injustice. It really gives IBM an
advantage to strategically pursue motions that would be dispositive without
a full vetting of our ability to be able to then explain to the Court what's
what and why.

Now, Your Honor, let's take the area of confidential information, and I'll
explain to you why I think that is the case.

THE COURT: Before we do that, Mr. McBride, you know, tell me why the rulings
in the cases of Utah Medical Products, decided, you know, from this
District Court and the Leucadia versus Applied Extrusion Technologies
case, decided out of the District of Delaware, should not apply to this
circumstance which indicates that the burden is on the plaintiff to prove
the existence of the trade secrets assuming that that's part of it, all
right, and that it is appropriate to postpone discovery in those
circumstances until such time as the plaintiffs have acknowledged what the
trade secrets may be, and otherwise this Court cannot determine, as the
other party cannot determine, what is relevant as to future discovery.

MR. MCBRIDE: Thank you. Yes. I will, Your Honor.

THE COURT: None of us know.

MR. MCBRIDE: Right. And future discovery is up in the air because it's in
one of the three categories. The Medical Products case that Your Honor
is referring to, in my reference, was a summary judgment case, not at the
beginning of the case but at the end of the case. The Leucadia case the
Court is referencing, specifically I would call the Court's attention to,
says that trade secrets do not embody a Rule 9 kind of specificity
requirement. It is, in fact, notice pleading required under trade secrets
law. That's what the Leucadia Court said. So I'm saying there's give
and take in both of those cases because neither of those cases addresses our
specific facts. The facts of our case go deeper than both those cases,
number one, and, number two, both of those cases were decided at a different
moment in the case than ours. And what I believe is a very correct
statement, Your Honor, is we won't know what part is trade secrets, what
part is contract, what part is copyright until we've seen all of IBM's
contributions. And I can explain why, unless you want to stop on that for a
minute.

THE COURT: No. Go ahead.

MR. MCBRIDE: The reasons why, Your Honor, remember the explanation I gave
about IBM's preparation of its derivative works. IBM owns those derivative
works. We don't dispute that. Not for a second. What we argue is they
can't give them away, the contract -- the terms of the contract, and that's
a decision that at some point summary judgment will be brought on to
interpret. No question about it. And we are simply saying, Your Honor,
because IBM only was involved in preparing that derivative work and we
weren't, we don't know what they've prepared. And part of what they've
prepared is going to be confidential information, mandated to be kept secret
under the license agreement and a breach of the scope clause, according to
us, but we don't know what they've done with the derivative work so we can't
point out what we don't know.

Now, I'll go to the trade secrets, but you can talk if you have anything on
that. I'll go to trade secrets specifically because that's a different set
of facts.

THE COURT: No. Go ahead.

MR. MCBRIDE: The cases the Court is referring to, and the cases that IBM
cite, aren't trade secret cases. That is the thrust of that case. I'm
saying our case is more -- it's an infringement case that may be one of
three different. And by the way, Your Honor, I will proffer to the Court
that we are filing a second amended complaint that has copyright
infringement claims, and will be filed within the coming few days or no less
than a week. And we'll put then fully in front of the Court the three
buckets we have outlined here, contract, trade secrets and copyright. But I
would like to the address trade secrets for a minute and explain to you what
is the genesis of our trade secrets claim. And at that point, I think most
of my argument is going to come back to some sort of a summary.

THE COURT: Let's do that because we need to be finished by --

MR. MCBRIDE: All right.

THE COURT: -- before 12.

MR. MCBRIDE: All right.

THE COURT: Giving all parties ample time to argue.

MR. MCBRIDE: If -- I'm going to use just as an aid, again, the complaint,
because this helps set out the issues. In paragraphs 50 -- starts at 51.
Now, what I'm about to refer to here really is only information addressing
the trade secret -- well, I guess that's not even true.

This addresses all the areas, but it really does go to the heart of trade
secrets, and, I believe, explains why the Court should rule according to the
way I'm requesting as opposed to entering a motion that Mr. Marriott is
requesting. Paragraph 51 through paragraph 57 -- and I will just generally
characterize those for the Court. This explains a background information
that goes to the heart of our trade secrets claim. And if we have not done
a good job of articulating that, then I guess shame on us and we better do
it better. But our trade secrets claim really is embodied in and arises out
of the joint development agreement between our two companies that started in
the 1997 time frame.

Now, Your Honor, IBM, as I mentioned, prepared its derivative work of Unix
that it calls AIX, but SCO also prepared its own derivative work of Unix
that it calls Unixware. And so we have two distinct positions in this case,
number one, we're in the shoes of AT&T as the original licensor, but, number
two, we were a licensee of AT&T. We prepared a version of Unix which was
designed to run on Intel-based machines, which is the kind of stuff that is
in pretty much all of our offices are Intel-based processors, the cheap
processors that make our computers much more inexpensive to run. Intel
processors are compared to what are called RISC, R-I-S-C, processors, which
are much more expensive and those are the processors used by large
corporations and they pay a lot more money for them.

SCO, in the early days, carved out a little niche in the Unix world that it
would develop a version of Unix only for Intel processors. Nobody else
wanted that space because Intel's processing power wasn't very good back
then. But Intel's processing power got better and better, and lo and
behold, in about 1995, SCO found itself in a really great position. Intel
was now being -- Intel chips were now becoming powerful enough that
corporations actually wanted to use them for large functions. And here we
were at SCO, lo and behold, the only company that had an operating system
running on Intel. And so, Your Honor, the SCO Company, as it delineated in
paragraph 51, from and after September 1995 spent a lot of money, for us.
I've heard the numbers 30 to 50 million, and I can't remember which, so I
better not represent too much. But for a small company, this company spent
a lot of money in making sure that its version of Unix would run very, very
well on Intel-based machines. IBM had none of that information, none
whatsoever.

The other thing that our little company did was to make our version, SCO's
version, of Unix called Unixware, run on 64-bit Intel processors. Now, the
stuff we all use right now is a 32-bit Intel processor, and that's really
not that complicated a thing. It's just that if you envision a pipe that
water flows through, or in the computer world bits flow through, a bit that
our computers all use -- or, excuse me, the processor, the Intel processors,
that our computers all use, can process 32 bits of data at a time. And so
it stands to reason that if you have a 64-bit processor, you just have twice
as wide a pipe through which water can flow and you can do stuff a lot
faster.

Our little company in 1997 and 1998 had spent 18 months, as outlined in our
allegations in the complaint, developing the technology for 64-bit Unix
processing on Intel. IBM had none of that technology. IBM had no ability
to convert anything from its operating system onto an Intel-based machine.
They had no available technology. They couldn't do it. And yet Intel
processors were becoming the thing every company wanted to run their systems
on. So IBM was being left out in the cold without an operating system that
they could sell.

Well, in traditional IBM fashion, they came to us and asked us to partner,
because that's what they do with companies, they partner and that makes a
lot of sense. But in the process of this partnership, things went awry. We
gave IBM all of our knowledge that we had spent 16 months developing about
how to run Unix on Intel processors. We had that. That's trade secret
stuff. IBM didn't have any of that. We gave it all to them in the joint
development project. And at the same time, IBM is developing Linux without
telling us. So we sail along. We give them all this trade secret
information. This is the core of our trade secrets case, the joint
development agreement between the companies that started in the 1997 time
frame called Project Monterey. We gave them more knowledge than they had as
a company about how to run Unix on Intel processors. They needed that.
They took that from us. They then went and said, Thank you very much. We
decided not to do the joint development project. Have a nice life. Took
all of our technology and gave it to Linux. IBM now is marketing this great
new Linux product, that 64-bit Linux, and it's the greatest thing ever.
They got that from us. That's a heart -- that's at the heart of our trade
secrets violation. That's in the complaint and, again, we're back to the
problem that, technically, we've already produced it, Your Honor, because we
gave them the source code of Unixwork so it's in there.

THE COURT: Didn't you give it to them in hundreds of thousands of pieces of
paper, though, without specifically identifying it?

MR. MCBRIDE: I'm quite certain we fixed all that. If we haven't, we'll do
it in sooner than 30 days. And, Mr. Marriott, do you know? Have we not
given that to you in machine readable format?

MR. MARRIOTT: I'm not sure that was Your Honor's question. The question,
Your Honor, is has the SCO Group identified the specific trade secrets they
say we've stolen and dumped into the open source? The answer is absolutely
not and I'll address that when I have the opportunity.

MR. MCBRIDE: That is correct. We haven't specific -- I admit that.
There's no question we haven't done that. And I'll tell you why and then
I'll sit down and let Mr. Marriott have his say.

We're saying this is sufficient for the Court to assume or view that trade
secrets are involved in this case. But the trade secrets are so
interrelated with the other code you can't separate out one. You can't do
it. You have to have the discovery of the universe, then we can argue about
where the code falls in what bucket. That's the way to proceed in this
case, we believe, Your Honor, and that's why a ruling under -- and I'll
finish this by reading it and then I'll sit down. What we are asking the
Court to do is under Rule 33(b) -- I'm sorry. It's at the end of Rule 32(c),
it simply says, An interrogatory that relates to facts or applications
of law or fact, the Court may order that such an interrogatory need not be
answered until after designation of discovery has been completed or until
pretrial conference. The reason for this ruling is really explained in
the -- or this rule is explained in the advisory committee notes on the
following page, that since -- it says very practically, Since
interrogatories involving mixed questions of law and fact may create
disputes between the parties which are best resolved after much or all of
the other discovery has been completed, the Court is expressly authorized to
defer an answer. We're asking the Court to defer an answer until we have
had enough discovery to be able to say what is what in the trade secret,
confidential information, copyright arena and then we'll fully answer and
live with whatever the answer is. And that relates to, really,
Interrogatories 1, 2 and 4. Interrogatories 12 and 13, Your Honor, we'll
answer those as best as we can, if that's what the Court wants us to do.

THE COURT: Thank you, Mr. McBride.

MR. MCBRIDE: Thank you, Your Honor.

Excuse me, Dave, you don't need this, do you?

MR. MARRIOTT: No. It's all yours.

Good morning, Your Honor.

THE COURT: Good morning.

MR. MARRIOTT: We appreciate the direction that Your Honor has given us, and
let me, if I may, in the few moments that I have do three things. First,
Your Honor, let me say just a little bit, because I think it's helpful to
the Court and important to the issues, about operating systems and source
codes. Those are sort of fundamental to what we're talking about on these
motions. Second, let me tell you what is at issue and that I think what you
have tentatively ruled is exactly the right ruling. And, three, let me
describe for you just briefly some of the shortcomings of the responses we
have received from the SCO Group. I won't take you through all the detail
but I would like to describe at least some of them.

If I may approach, Your Honor, we have a couple of exhibits, like the SCO
Group, that I think may facilitate the discussion.

THE COURT: Thank you.

MR. MARRIOTT: All right. So, first, Your Honor, by way of a little
background, it is important, I think, to understand the issues presented
here to understand a little bit about operating systems. And if you'll
take a look at page 1 of our book, you'll see a little table which
undertakes to describe that. Without its software, Your Honor, a computer
is essentially a useless lump of metal. With its software, however, an
operating system can do a lot of important things.

There are basically two types of programs. There are systems programs and
there are application programs. The most important of the systems programs
is the operating system. And it's the program which controls the
functioning and the operation of the hardware itself. It controls the
resources of the machine, and it is the base on which the applications sit.
So when Your Honor sits down at her desk and when you write a letter, you
communicate with the hardware via the operating system. You might use a
program like Microsoft Word or Word Perfect to write the letter. Those are
applications which sit on top of the operating system.

Computer programs, Your Honor, and operating systems are written in a
language called source code. Source code is a set of statements with
comments that represent the instructions that are ultimately translated by a
device called the compiler into ones and zeroes that the computer executes.
And if you take a look at pages 2 through 9 in this book, what you'll see,
Your Honor, is a sample of source code. In fact, this is source code from a
particular file in the 2.5.69 version of the Linux operating system. What
you'll see in red are the comments, programer's notes, and what you'll see
in black are the set of programming statements which are actually ultimately
translated into ones and zeroes that can be executed by the machine.
Essentially, Your Honor, the programer writes the language and saves it to a
file. The file is like the chapter in a much larger book of source code.
This is one little chapter in a much larger book of source code.

Unix is a family of operating systems. It was developed originally by AT&T.
Linux also is an operating system. Linux was pioneered in 1991 by an
undergraduate student at the University of Helsinki by the name of Linus
Torvalds. He posted a note on the internet saying, I'm writing an operating
system, and solicited help. What has followed, Your Honor, is a massive
collaborative exercise by which thousands of developers worldwide have
written this operating system. And if you take a look at page 10 of the
exhibits, Your Honor, you'll see a brief diagram which describes the process
by which the Linux operating system is developed. Developers worldwide make
contributions. They make the contributions to expert developers known as
subsystem maintainers. Those individuals review -- subject the code to a
massive process of peer review. Thousands of developers have input, and
when the subsystem maintainers are satisfied that the code is in an
acceptable form, it's passed up the hierarchy to Mr. Torvalds himself and
another developer by the name of Andrew Morton. Those individuals then make
judgments about what should be in the production version of Linux and what
should be in the development version of Linux and eventually it gets to the
market place.

What Your Honor needs to understand here is that whereas many operating
systems are developed behind closed doors and the source code is secret,
with respect to the Linux source code, it has been developed publicly. It
is, essentially, Your Honor, developed on the internet. Your Honor can log
on to any number of web-sites at which you will see the Linux operating
system being written before you. We have included, as the next exhibit in
the book, Your Honor, at page 11, an e-mail that was sent from a developer
of the SCO Group to the mailing list by which contributions are made to
Linux. This is the way the operating system is built. Individuals make --
write codes. They suggest it for inclusion in the Linux operating system.
It's passed through a rigorous process of peer review, all public, Your
Honor. And as a result of this process, if the contribution is deemed
acceptable, it's included into the operating system right before everyone's
eyes.

What you ought to know here as well, Your Honor, is that the plaintiff here
began in 1994 as a Linux distributor and has, over the course of the
approximately last 10 years, distributed thousands of Linux products. Now,
having said that, let me tell you the second thing I want to make sure you
understand, which is what really, I think, is at issue in this case. The
crux of SCO's case, Your Honor, is set up at paragraph 101 of their
complaint. And we've replicated it here in the book. What they say at
paragraph 101 is the following: They say IBM is affirmatively taking steps
to destroy all value of Unix by improperly extracting and using the
confidential and proprietary information it acquired from Unix and dumping
that information into the open source community. That is the case in its
essence, Your Honor. They say we took something out of a Unix book over
here, a secret Unix book, and we dumped it over here into the Linux public
book.

And if I may, Your Honor, approach, what I'm handing you is a collection
of source code.

MR. MCBRIDE: Is this AIX you're finally producing us?

MR. MARRIOTT: Let me tell you what you have here, Your Honor. You have two
books. The little book, which is highly confidential under the terms of the
protective order in the case, is Unix source code. This is the -- this is
an example of the secret book that we are alleged to have taken parts of and
dumped into the open source community. The other file that you have, the
larger book, is a single file, a single file of thousands of Unix source
code. What we're said to have done is to have taken something out of this
little skinny book and dumped it into this book right here. That's the
essence of this case.

Now, we asked the SCO Group in discovery, Your Honor, to tell us very simply
what it was, specifically, that we took out of this book and that we dumped
into this book. We asked them the basics of their case. We asked them for
the evidence that they have that we've done what they allege in their
complaint that we've done. Now, SCO objected to the requests. They said
that we didn't need to know what they took from here and what we put into
here because we did it, after all, we should know. That's the first
objection. Then they say to us, You don't need to know, IBM, because we are
going to produce to you millions of pages of paper and you can figure out
for yourself where in those millions of pages of paper what it is you
supposedly took from here and supposedly put into here is found. They tell
us that we took methods, Your Honor. They tell us that we took trade
secrets from here, but they won't tell us precisely where they are. We get
that response despite the fact that in order to file its complaint they had
to have the evidence they allege to have. We get that response despite the
fact that the case law is abundantly clear that the order of things is that
a plaintiff first tell the defendant what the trade secret at issue is, and
then the defendant provides the discovery.

If Your Honor takes a look at page 13 of the book, we summarize here the
upshot, essentially, of the case law and the rules, which is that you may
not dump on a party undifferentiated documents and expect them to find from
those documents the answers. And at paragraph -- at page 14 you see some of
the cases, Your Honor, which address the question of what the proper order
of proceedings is here. In the Porous case, Your Honor, for example,
which case concerned canisters, the Court there granted a motion to compel
specificity in answers. The Court said that failure to identify trade
secrets with sufficient specificity renders the Court -- and that was what
the Court was referring to earlier -- powerless to enforce any trade secret
claim. The same is true in the Lynchval case, and the same is true in
the Xerox case. The Court in the Xerox case, Your Honor, said
the defendant is entitled to know the basis for the plaintiff's charges against
it. The burden's on the plaintiff to specify the charges. It's not on the
defendant to guess what they are.

Now, we move to compel, Your Honor, after trying unsuccessfully for four
months to get answers to our questions. Following our motion, we received
supplemental responses. Those supplemental responses respectfully give the
impression of compliance. They are in no way compliant with what it is we
requested. I am going to lay that out for Your Honor here momentarily.
Basically what SCO says, Your Honor, is that in this giant haystack of code
over here, there are some trade secrets which we took and we dumped over
here, but they won't tell us where in this haystack it is, and they won't
show us where in this haystack that it's found.

If you take a look, Your Honor, at page 15 of the book, now, what you need
to know is a little bit about the size of the haystack and how small the
needles are. And at the risk of mixing my metaphors, let me go back to the
book metaphor. In this Unix book, Your Honor, this is actually not the Unix
book. This is just a chapter in the book. Unix System 5, which is the set
of code which they say is at issue in this case, consists of multiple
releases and multiple sub-release. Release 4.2, release 3.2, release 4.0,
those books of codes are immense. Each of those books, Your Honor, consists
of many chapters. It's not just one chapter here we're talking about. Unix
4.0, for example, has 14,548 chapters. This is a chapter. This isn't the
book. 14,548 chapters, files in these releases. Within, Your Honor, the
files in a given release, there are millions of lines of source code. If
you look here, Your Honor, you will see a number on the left margin of the
code. In this particular file, there are 11,891 lines of code, in one of
the files, in one of the chapters of which there are 14,548 in just one
release, just one release of Unix.

The same, Your Honor, is true with respect to Linux, and, indeed, there are
actually many more books of Linux than there are books of Unix. Linux has
multiple versions. There is version 2.5, there's version 2.4. Within each
of those versions there are multiple releases. Versus 2.5, for example, has
76 different releases, from 2.5.0 to 2.5.75. In other words, the
book is enormous. Within those books, Your Honor, in Linux, just as in
Unix, there are multiple chapters. Each release includes a large number of
files. If you look only at 2.5.69, Your Honor, there are 14,086 files.
This is one of the files. This is one chapter in this immense Linux book
which has been written effectively over the internet into which we're
supposed to have dumped code that they won't identify for us. In these
files, Your Honor, collectively, there are millions and millions and
millions of lines of code. This is one chapter in the book. In this
chapter, Your Honor, there are 31,597 lines of code. Where is the secret?
Is it line 17,656? What is it about it that's secret? That's what our
discovery requests, Your Honor, are all about.

Now, what makes SCO's responses here -- let me say this, what do we have
from SCO by way of responses? We asked them to tell us where over here, Your
Honor, lies the material that we put into Linux. There are many books, all
right. They have identified for us not a single Unix book, not a single
book. There are thousands of chapters of Unix from which we're supposed to
have taken things. They haven't identified for us a single Unix chapter,
not a single one. There are millions of lines of code. We've asked for
them. They haven't identified a single Unix code -- piece of code that
we're supposed to have taken from here and put over here. With respect to
Linux, they have not told us in which -- from which -- into which Linux book
we are supposed to have taken this Unix material and placed their secrets.
We don't know what book it is though there are hundreds of books at issue.

As to the chapters, they told us, finally, Your Honor, in their supplemental
responses that there are 591 Linux files, Linux chapters, into which we can
find some secret, which they won't identify, which comes from over here,
which secret they've took and they put over here in 591 files. Now, 591
files, the 591 they've identified, Your Honor, aren't associated with any
book, so we don't know into which of the more than a hundred books or
potential at issue those 591 files reside. And even if we did, even if we
knew that it was 2.5.69, Your Honor, even if we knew that, there are 335,000
lines of code in the files they've identified. They haven't identified for
us a single line of code. Worse still, Your Honor, what they say in their
supplemental responses is, We may or may not have trade secrets in those
files. Figure it out for yourself. If you read their supplemental responses
carefully, they don't say, These are our trade secrets and I swear under oath
that those are trade secrets. What they say is, They might be in there.
We'll let you know later whether they are or whether they aren't in there.
That is not, Your Honor, I submit, what it is the rules here require of a
plaintiff in a case of this kind.

Now, what makes SCO's approach to discovery here particularly troubling is
that from the beginning of the case they have touted far and wide their
evidence against IBM, the strength of their case. And I refer the Court,
just by way of example, to pages 16 and 17. The additional book I've just
given Your Honor is back up for these statements and for more statements.
Let me just focus you on the four that are included here in this exhibit.
The CEO of the SCO Group, Mr. McBride's brother, who's in the courtroom
today, has said, Your Honor, far and wide, there is line by line code in
Linux that is matching up to our Unixware code. In other words, We got you.
We found the code in here. It matches up to the code in here, but we're not
going to tell you what it is. He says, We feel very good about the evidence
that's going to show up in court. We'll be happy to show the evidence at
the appropriate time. The appropriate time, Your Honor, was four months ago
when they received our responses which were submitted to them in June. It's
now been five months.

If you look at the next bullet point, IBM has donated some of their high-end
technologies into open source. We have examples of code being lifted
verbatim. Not just a line or two, it's an entire section and in some cases
an entire program. Where is the code, Your Honor? We haven't seen it. It's
not in their discovery responses.

The next bullet, Portions of derivative works of Unix System 5 code are
found in Linux. We have begun the process of showing parts of the violating
code to appropriate parties under nondisclosure agreements. That's June
6th. That's before we served our discovery responses. We haven't seen that
code, Your Honor. We shouldn't have to have a non -- we have a protective
order in this case. We ought to be able to have at least access to what it
is everybody else is supposedly seeing.

If you look at the last bullet point, Your Honor, The month of June is show
and tell time. We're not going to show just two lines of code. We're going
to show hundreds of lines of code and that's just the tip of the iceberg.

Take a look, if you would, please, Your Honor, back at page 14 of our book,
alleged misappropriated trade secrets or confidential information must,
under the case law, be specified. The Lynchval case concerned computer
programs. The Court there affirmed a decision of the magistrate judge to
strike an expert report because the plaintiff in the case had failed to
adequately disclose the trade secrets. The trade secrets there are
disclosed with more particularity than are the trade secrets here. The
plaintiff in that case said to the defendant, There are four documents. In
those four documents there are 40 functions of the computer. Nineibiblio of
those 40 are ours. Figure it out yourself. The Court in this case said
that's unacceptable. By comparison here, Your Honor, we've been given
haystacks of millions of lines of code and been told to figure it out for
ourselves. We know, after all, they say, we're the bad guy. We supposedly
dumped their Unix property into Linux. But they won't tell us what it is.

Notably, Your Honor, notwithstanding the case cited by Mr. McBride, the SCO
Group has not cited a single case to contradict these cases. The case to
which Mr. McBride refers from the Ninth Circuit does not contradict these
principals. Indeed, it's a copyright case, which at present at least is
entirely irrelevant to the SCO Group's claims against IBM that they've
asserted no copyright claim, and even when they do, as they're now
apparently going to do, the copyright law has absolutely no bearing, Your
Honor, on whether or not they are required to tell us what the supposed
trade secret here is.

Now, why does this matter so much to IBM? Putting aside the fact that we
need to know what it is that we supposedly did so that we can defend
ourselves, the SCO Group's activities are not limited, Your Honor, to
telling the world how great their case is. They are threatening Linux users
with lawsuits. It's like they're standing outside the Barnes and Noble,
Your Honor, and a customer walks out having purchased a new Linux book, and
the SCO Group says, Wait a minute. Stop right there. That Linux book
includes our Unix property. You pay us or we're going to sue you, and if
you have a problem with it, go talk to IBM. They know what they did. They
took the secrets out of Unix and they stuck them into Linux. Take it up
with them. We showed them what the evidence is.

Your Honor, they haven't showed us what the evidence is. That's what these
motions are about. Your tentative ruling, I think, is right on the mark and
we would urge you to endorse it as your final ruling.

I don't contemplate, Your Honor, walking through the shortcomings of each of
SCO's requests. I think they're laid out adequately in our briefs. Let me
say simply this, according to SCO's CEO, in a November 12th television
interview with KSL, This is, he says, the biggest issue in the computer
industry in decades. The balance of the software industry is hanging on
this. This, Your Honor, is, as you can read for yourself, one of many
statements made by this company about its great evidence against IBM, and
yet it refuses to give us the evidence on which it's based its present
business model. Some of the responses give the impression of providing
specificity. In fact, they don't provide any. The rules don't permit this
approach to discovery, Your Honor, and it is particularly troubling to us,
since SCO's CEO has publicly stated that he's glad to see the case drag on
since, in his view, delay merely increases the SCO Group's damages against
IBM.

It is undisputed that we're entitled to the information that we've requested
here. SCO hasn't even argued otherwise, Your Honor. The only question on
these motions is whether they've given us what we've asked for, and the
answer to that is they have not. And I would submit, Your Honor, that no
reasonable person could conclude, in view of our requests and their
responses, that they've given us what we've asked for. We think their
allegations are meritless. We don't believe they had any evidence at the
time they filed this case, and we don't think they have any evidence now.
And we submit we're entitled to hear from them what it is they think they
have that IBM has done. If they're not required, Your Honor, now to provide
the answers to these questions, then we're going to be in the dark as to
what the case is about, we're not going to be in a position to defend
ourselves and we're not going to advance this case to a just and a prompt
resolution.

THE COURT: I understand your position.

MR. MARRIOTT: Thank you, Your Honor.

THE COURT: Thank you for you comments.

Mr. McBride, I'll give you 10 minutes.

MR. MCBRIDE: Thank you, Your Honor.

I think my rebuttal is going to be a best effort in open court to answer the
questions posed by Mr. Marriott at the broad level, and I believe that if I
do this at the broad level, I think that the requests that we are seeking of
fact and the methods that we are seeking is going to come clear and that that
should be the basis for the Court's ruling.

There is no trade secret in Unix system files. That is on the record. No
problem with that. There are trade secrets from Unixware, which is SCO's
version of Unix that was given to IBM in the joint development project.
Now, this may not be as much detail as we all need to get into, but I'll
clearly say that System 5 is in the book that Mr. Marriott referred to and
properly so. There's nothing secret in there. There may be copyrighted
code in there and we assert that there is, but that's not trade secret.
Their trade secrets are in Unixware that emanate from the joint development
project. And as we move forward in discovery, we should focus our efforts
on the trade secret claims relating to that joint activity between our
companies that started in 1997 and ended abruptly in 2000.

Now, confidential information, Your Honor, is a very different animal.
Confidential information is not treated as a trade secret, necessarily,
under the law. We have a unique case here. The confidential information
we're talking about is stuff that Mr. Marriott's client created but we
didn't ever get to see.

THE COURT: The protective order addresses that. There's a protective order
in place.

MR. MCBRIDE: No, Your Honor, excuse me. The confidential information is in
the derivative works prepared by Mr. Marriott's client that we hope to
receive under the -- under the -- our discovery requests but we haven't seen
one word of yet. We hope to see that. And once we see AIX and all versions
of it, then we will be in a position to be able to say, Huh, you know what?
This stuff you did in derivative works, you own it, but you contributed to
Linux improperly, and, therefore, we have a claim in state law contract for
breach of confidential information, which is completely separate from trade
secrets. So it's just really important that we get a scalpel here and
understand what we are looking for. Trade secrets, nothing in Unix System 5
that exists in Unixware with respect to the joint development project.
Confidential information emanates from IBM's own development of AIX that we
never got to see, but we, nevertheless, have the contractual right to
control the use of in very limited instances, which is involved in this
particular case. So, hopefully that clarifies, and maybe even for Mr.
Marriott's arguments, if we haven't done a good job of putting that
information to him.

Now, if -- we're spending a few more minutes on public statements made by
our executives. And, Your Honor, there are other companies that have
contributed code to Linux, the biggest one of which is Silicon Graphics.
Silicon Graphics Company has taken direct lines of Unix System 5 code, not a
derivative work code, Unix System 5 and distributed it to Linux. I'll
represent to the Court in just broad terms that SGI has, at some level,
acknowledged that occurred. I won't characterize SGI's own writing, but, in
fact, wrote an open letter acknowledging, at some level, that that occurred.

The evidence that our executives have talked about in the public has had to
do with Unix System 5 code contributed by Silicon Graphics. Has nothing to
do with IBM. Now, the evidence against IBM that our executives have talked
about, Your Honor, that we know IBM has contributed into Linux,
specifically, and we've talked about this, relate to the code that came from
Dynix, that is the NUMA code and the RCU code. IBM advertises the fact that
they contributed this. We have produced those files in discovery saying, We
think you contributed. We know you contributed NUMA and RCU. We think it's
a violation. Now, whether it is a violation or not is not of moment in this
particular hearing. That's something that we will argue about at a
different day and a different time. But, Your Honor, just at least in
support of the statements made by our executives, that's what they have
talked about is that IBM has taken the Dynix code and wholesale contributed
very important parts of it relating to multiprocessor code, and IBM has
taken the methods learned and really improved the multiprocessing
capabilities of Linux in a way that violates either the confidential
information or some copyrighted code. That's what we've been saying all
along, and that's consistent with what we continue to say.

So, I don't know if my 10 minutes are up, but here's what I think, Your
Honor, is the appropriate order that we would request is entered, that we,
in fact, take a scalpel out, and we -- and, Your Honor, just for fun here, I
brought the last CD's produced by both sides in this particular case of
information. Ours is numbered 126 and theirs is numbered 21. This morning
we actually received 22 and 23, as I understand it. Which is simply to say
we've produced a hundred more CD's of documents than they have. What we
want and what we need is all versions of AIX, all versions of Dynix. We
have repeatedly asked for it since June. We have not seen one line of any
of that until, apparently, this morning two CD's of a version of Dynix were
produced. So the appropriate order, Your Honor, is simply this, that first
of all, IBM produces all of the Dynix and AIX, and we then compare it with
our Unixware code to be able to draw more concrete allegations, more
concrete answers to the interrogatories, and that once IBM has produced its
code so we can compare it, and we have 30 days to do that, we'll take
another crack at answering the interrogatories in another fashion. But we
just think that's the fair way of doing this, and, Your Honor, to stop
discovery would be absolutely unjust in this case because then, again,
remember, the derivative works, we never saw them in the first case. We're
not saying they're trade secret. We're saying IBM had a contractual
obligation to not disclose those, so it would tie our hands, absolutely
improperly, and give IBM strategic advantages that would be not right in
this case, as far as how discovery should proceed. So that's our request in
terms of how this ought to be handled, Your Honor.

THE COURT: Thank you, Mr. McBride.

Mr. Marriott, anything in brief response?

MR. MARRIOTT: Sure, Your Honor.

Unless the Court wishes, I won't respond in full to SCO's motion to compel
IBM except, Your Honor, to say this, IBM has produced what amounts to the
equivalent of more than a million pages of paper. We have not refused to
provide discovery. We have said the discovery must be tailored to the
allegations in the complaint. We've provided the discovery that we think can
fairly be provided in view of their allegations. We have provided Dynix code
as of last night. We would have provided it earlier, Your Honor, but for the
third party notice process that's required. We intend to provide AIX code to
them. We intend to provide the code when the process of third party
notification is compete.

What we don't intend to do, unless this Court makes us do it, is to produce
every conceivable iteration and version of AIX and Dynix. As we lay out in
our papers, that amounts to somewhere in the order of 40 million pages of
paper. There's no cause for that. It bears no relevance to the case as we
presently know it. And we would respectfully ask that the Court adhere to
its tentative rulings, grant IBM's motions in their entirety and either deny
or hold in abeyance the SCO motion.

Thank you, Your Honor.

MR. MCBRIDE: One very brief sur-reply, Your Honor? We want the 40 million
pages. We'll digest it.

THE COURT: Are you yourself going to review them by Sunday, Mr. McBride?

MR. MCBRIDE: Your Honor, if we have it in computer readable form, our
experts can analyze it. Unless we have it from IBM, we can never know the
ways they've improperly taken their derivative work code and made Unix
better in violation of our contract. That would be an injustice, Your
Honor.

MR. MARRIOTT: May I just --

THE COURT: Last word.

MR. MARRIOTT: -- respond briefly to that one, Your Honor? If you take a
look at the little book that we provided Your Honor of the Linux development
process, what makes this -- independent of the fact that there are no case --
there is no case law authority for what Mr. McBride suggests, independent
of that, if you take a look, Your Honor, at the chart, you will see that the
Linux development process is an open process. That's what makes Linux
great. It Mr. McBride and any of the SCO executives want to know what
anybody's contributed to the Linux operating system, they can find it out
for themselves by getting on the internet at any one of the number of sites
that exist there and doing a search for IBM.

Thank you, Your Honor.

THE COURT: Counsel, I am ready to rule in this matter. I think it is
essential to get the ball rolling in this circumstance, and I'm convinced
that my initial intended order is appropriate in this case. And I say that,
acknowledging, Mr. McBride, that at the conclusion of what will be required
of SCO, then we will visit your issues to determine the breadth and
specificity that will be allowed you. We're going to do this both ways.

At this time, however, I will grant defendant IBM's motion to compel answers
to both sets of interrogatories, and that would include, I think, 12 and 13,
if those are the ones that are questionable. SCO is to file its responses
within 30 days of the entry of this order, and if, for some reason, it is in
good faith unable to obtain a particular portion of that, then it must file
the appropriate affidavits indicating why it cannot. It is to respond -- it
should file its discovery and respond in order to comport with the -- or
correct the deficiencies that are set forth in the defendant's addendum
that's filed November the 4th.

Mr. Marriott, I would ask you, if you are able to at this time, to identify
those particular documents which you are requesting. Are you able to do
that?

MR. MARRIOTT: I can begin that, sure, Your Honor.

THE COURT: All right, let me just indicate further that those responses are
to identify, with specificity, the source codes that you are claiming form
the basis for your action.

Now, with regard to the documents.

MR. MARRIOTT: Your Honor, I'm happy to, by way of supplement, to provide a
full list. We have a number of document requests, somewhere in the order of
50. Of course, we want answers to all of those. The principal problem here
has not been that SCO has objected to providing them. It's said that it
would provide them, but it simply hasn't done it. We think that the process
is being gamed in the sense that we're told, Well, we're in a rolling
production. You'll get them eventually. We know there are important
documents that are missing, and let me try to itemize them for the Court, if
I may, some of those.

MR. MCBRIDE: Do you have a list?

THE COURT: I don't want to take -- perhaps if they're in written form, you
can provide that to Mr. McBride and --

MR. MARRIOTT: I'm happy to do that, Your Honor.

THE COURT: -- the same requirement will be enforced. In the meantime, all
other discovery is postponed. And the -- you -- both parties will be
expected to abide by the protective order that is currently in place. I
will set this matter for a hearing.

Mr. Marriott, I would ask that you prepare the order in this matter and
submit it to me no later than Wednesday of next week. Assuming that it is
an appropriate order, then your 30 days would begin to run, Mr. McBride,
from that period of time. We will set a hearing, then, for approximately
two weeks thereafter, so we are talking about the middle of January, all
right. Does anybody have a period of time, let's say, in the week of
January 12th when you could not be present for a morning hearing?

MR. MARRIOTT: No, Your Honor.

THE COURT: All right. Does that give you sufficient time? I am holding you
to the 30 days, but if we get this order signed by Wednesday of next week,
let's make it even the fourth week of January, which is after the 19th. Why
don't we do it Friday, then, the 23rd at 10 o'clock, again, and then we will
address the remaining motions of SCO, all right.

MR. MCBRIDE: So Your Honor is not ruling on our motions at this point in
time; is that correct?

THE COURT: No. I'm not ruling on your motions, and that is inherent in my
order that further discovery be postponed.

MR. MCBRIDE: Very good, Your Honor.

THE COURT: We'll address them then.

MR. MCBRIDE: So and we'll, in this next -- the January hearing then we will
address the -- our pending motions as well?

THE COURT: Yes.

MR. MCBRIDE: Thank you, Your Honor.

THE COURT: All right. That's with the assumption that the discovery that
SCO is to complete has been completed, all right, and with the required
specificity. So what my intention is, then, is to then address the motions
of SCO.

MR. MCBRIDE: Just -- I'm just thinking procedurally whether we will have
time to actually brief and agree upon whether we -- the specificity is
required in advance of the hearing or whether we will be doing that at the
hearing.

THE COURT: No. I would think that should be in place prior to the hearing.
If you want a date later than that, that's fine. I don't care.

MR. MCBRIDE: Let's hold that date for the time being, and then if, for
whatever reason, it appears problematic, we'll notify the Court Does that
seem appropriate?

THE COURT: It does.

MR. MARRIOTT: That's fine by us, Your Honor.

THE COURT: If there's nothing further, counsel, we'll be in recess in this
matter.

(Whereupon, the hearing was concluded.)


  


The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM | 253 comments | Create New Account
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The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 12:05 AM EST
MR. MCBRIDE: Yes, Your Honor. Now, where we are so far, in at least my line of reasoning, is I want to walk the Court through enough of our complaint to help the Court understand that IBM clearly did contribute a lot of the Unix-related information into Linux. We just don't know what it is .... Isn't it odd, they go to court, and they don't know what has been violated ?

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: frumpus on Friday, December 12 2003 @ 12:20 AM EST
What I find the single most odd thing in the transcript is the way that Kevin
McBride refers to the old SCO and the new SCO (Caldera) interchangeably as the
same company (starting on about page 25 of the pdf). It’s one thing in the
press, but it seems like a very foolish maneuver in front of a judge! I assume
they DO know the difference.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: skidrash on Friday, December 12 2003 @ 12:23 AM EST
spelling paragraphcs

MMB: The reason this is an intersting
case is because it underscores the point that I just made to
the Court. The -- there are some paragraphcs here worth

[ Reply to This | # ]

Q for Darron Knutson, if you're still here
Authored by: skidrash on Friday, December 12 2003 @ 12:30 AM EST
I'm just wondering about this argument that SCOG is making

"we need to see all the code because this case may be about the
possibility that we suspect some of that code may have been misused".

Can IBM not say

"the contract contains no provisions for you to receive the code in
return. You are trying to renegotiate the contract long after it was signed,
trying to add rights the contract never gave you. The contract was signed,
there are no provisions for IBM to let you see the code, so go fish."

[ Reply to This | # ]

Don't forget the money!
Authored by: martimus on Friday, December 12 2003 @ 12:30 AM EST
They never wanted to have to go to court. They wanted to scare IBM into
buying them out. They could (in their fairyland) get a settlement from
IBM for pennies on the dollar (in relation to their claims of $3 Bln and
counting). This would still be a very large premium over their then
~1.00/share price earlier this year. Now they have the proverbial tiger by
the tail, and don't know how to let loose without getting mauled. Their
secondary plan was to pump the stock as much as (and for as long as)
possible so that the insiders could get out with as much money as
possible. The reason (IMHO) that all they are doing now looks so juvenile
and unprofessional is they never expected to be here, with court records
etc demonstrating their vaporous legal/financial stategy.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: SteveS on Friday, December 12 2003 @ 12:33 AM EST
MMB: ...We just don't know what it is. And I would refer the Court, to start with, to paragraph 51 -- no. I'm sorry. We are going to back track to that -- paragraph, please, 95. Actually it's 96. ...
Is it just me, or would Woody Allen do a good job of playing this guy in the movie version?

I realize this is spoken word transcribed, but was he at all prepared to go before the Judge on Friday?

Steve S.

[ Reply to This | # ]

sre they getting tangled up on license reporting?
Authored by: brenda banks on Friday, December 12 2003 @ 12:36 AM EST
http://www.linuxjournal.com/article.php?sid=7306

---
br3n

[ Reply to This | # ]

Volunteering to transcribe (pp 30-34)
Authored by: jwoolley on Friday, December 12 2003 @ 12:39 AM EST
I'm certainly willing to help transcribe. Since I don't know who's working
on what at the moment, I'll jump down to page thirty and start there. I'll do
five pages to start with (ie, 30-34 inclusive).

--Cliff

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Beyonder on Friday, December 12 2003 @ 12:43 AM EST
Doc-88-transcript is done, and quality looks good, I didn't want to post all 57
pages here in a comment though.

you can grab it from my temp website at-

http://nexus.vrx.net/sco/doc88transcript.htm
or
http://nexus.vrx.net/sco/doc88transcript.txt

Please DONT "slashdot" my site! :)

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 12:47 AM EST
After reading through the transcript I start to understand how Kevin McBride is
reasoning (scary thought ;-) It seems that their idea is, that since IBM has
created derivative works for AIX from AT&T's code, and AIX code or IP is
being put in to linux -> IBM has put IP they got from AT&T to Linux.

So the basic idea is that AT&T ip has tainted AIX and hence anyone who ever
looked at AIX' code is tainted. -> A person who looks at AIX will transfor
AT&T IP over to linux.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 12:50 AM EST
I read the transcript this morning, and I have to say that it reads much better
than it must have sounded in court. While McBride used several times as many
words as necessary, his argument -- such as it is -- was the clearest statement
of their complaint yet. On the other hand, I found the IBM lawyer's
description of 'this little book' and 'this big book', and chapters of books
confusing and probably inaccurate -- although again I expect that it played
better in court than it reads in the transcript.

Clearly the judge had her mind made up, and quite reasonably so, based on
submitted briefs and arguments, and SCO's wild public statements. I fear,
though, that her desire to get the case moving forward is unlikely to bear
fruit. IBM's clarification of their interrogatories will surely be interesting
reading to everybody but the wives and husbands of SCO's officers and lawyers
-- who will have a very lonely Christmas.

It's refreshing to see that there doesn't seem to be any home-court advantage
for SCO in Utah. I take back every mean thought I ever had about Utahns.

thad

[ Reply to This | # ]

UNIX trade secrets?
Authored by: dentonj on Friday, December 12 2003 @ 01:08 AM EST
SCO is claiming that running UNIX on Intel processors is a trade secret.
"We gave IBM all of our knowlegde that we had spent 16 months develog about how to run UNIX on Intel processors. We had that. That's trade secret stuff."
They are also claiming that running Linux on 64-bit processors was developed by them.
"IBM now is marketing this great new Linux product, that 64-bit Linux, and it's the greatest thing ever. They got that from us."
But then they claim there are no trade secrets in UNIX.
"There is no trade secret in Unix system files. That is on the record. No problem with that. There are trade secrets from Unixwae, which is SCO's version of Unix that was given to IBM in the joint development project."
The next two quotes seem to be the heart of SCO's lawsuit. They have no idea what IBM did wrong and they want IBM to provide that information to SCO. SCO also thinks they can control how IBM uses something that IBM owns and that contributing to Linux breaches some contract concerning confidential information. It seems SCO wants to get the AIX source so that they can add claims of copyright and trade secret violations to the lawsuit. It must be obvious to SCO the the breach of contract claims are not going to hold up in court.
"And what I believe is a very correct statement, Your Honor, is we won't know what part is trade secrets, what part is contract, what part is copyright until we've seen all of IBM's contributions."

"And once we see AIX and all versions of it, then we will be in a position to be able to say, Huh, you know what? This stuff you did in derivative works, you own it, but you contributed to Linux improperly, and, therefore, we have a claim in state law contract for breach of confidential information, which is completely seperate from trade secrets."

[ Reply to This | # ]

Missing section: pages 12-16 of .pdf
Authored by: Anonymous on Friday, December 12 2003 @ 01:09 AM EST
Locate "And that really speaks to this issue..." on page 12.

That's where your transcription gets out of sync.

The next sentence fragment in your transcription is from the top of page 16:

"because there are many people who like the Linux model..."


I hope this helps. I know your transcription work is unfinished so feel free to
ignore this.

[ Reply to This | # ]

Sharp and to the point
Authored by: rgmoore on Friday, December 12 2003 @ 01:10 AM EST

I really like Marriott. He doesn't waste words dancing around a point, and he's willing to be quite blunt about IBM's position. I thought that this stretch (pp 44-45) is just about perfect:

It is undisputed that we're entitled to the information that we've requested here. SCO hasn't even argued otherwise, Your Honor. The only question on these motions is whether they've given us what we've asked for, and the answer is that they have not. And I would submit, Your Honor, that no reasonable person could conclude, in view of our requests and their responses, that they've given us what we've asked for. We think their allegations are meritless. We don't belive they had any evidence at the time they filed this case, and we don't think they have any evidence now.

It doesn't get any more straightforward than that. SCO hasn't answered questions that they admit they have to answer, and no reasonable person could argue otherwise. The reason they haven't is because they didn't have evidence at the start of the case and haven't developed any since. It's pretty obvious that IBM is going to ask for a dismissal with prejudice, and presumably some serious sanctions, unless SCO coughs up the goods in the next 30 days. They've all but announced their intention to do so in court.

---
Behind every sleazy lawyer, there's a sleazy client.

[ Reply to This | # ]

Transcribing the "NoteThe Transcript of Oral Arguments"
Authored by: Anonymous on Friday, December 12 2003 @ 01:11 AM EST
Pages 50-57 have been sent to PJ. I'm now transcribing pages 45-50. Please
reply if I'm doing duplicated work.

[ Reply to This | # ]

Off Topic: With Friends Like These...
Authored by: Alex on Friday, December 12 2003 @ 01:14 AM EST

Here's an interesting URL from the World Socialist Web Site. They talk about
SCO vs. IBM and give an interesting history of Unix. Unfortunately, the
publishers of the piece really are commies...

http://www.wsws.org/articles/2003/dec2003/soft-d12.shtml

This is the second link of this nature I've noticed today, the other is located
at:

http://www.infoshop.org/inews/stories.php?story=03/12/11/0059957

I wonder whether Linux is simply beginning to be noticed outside the computer
business, or <tinfoil hat on> whether the stories are being
"planted" for later use.

Alex

---
Hey Darl!! Did Ross Perot draw your chart?"

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 01:20 AM EST
Am I reading this right?

SCO is claiming that they have a contract with IBM saying that they won't give
away any of the ideas ("methods and concepts" - pg 20) in UNIX.
They're trying to say that by re-implementing these ideas in Linux that
they're giving it away. This is odd because Linux is licensed under the GPL,
it's not public domain, so they're not giving it away. On top of that, SCO
itself gave to Linux even recently. Huh?

The trade secret claim is even sadder. To me it sounds like they're saying IBM
(and the rest of the Linux community) COULDN'T HAVE developed in the last 5
years what SCO developed over 16 months. (Page 27)

[ Reply to This | # ]

Spelling error
Authored by: StringCheesian on Friday, December 12 2003 @ 01:30 AM EST
Last paragraph on page 8: "MMB: The reason this is an intersting"

[ Reply to This | # ]

Cockiness
Authored by: Anonymous on Friday, December 12 2003 @ 01:32 AM EST

THE COURT: But isn't SCO also saddled with, for lack of a better term, having made public statements itself concerning this case? I mean, it's not just IBM making comments about the contributions to Linux.

When SCO initially filed suit, the public record contained comments from IBM about bringing Linux up to speed with Unix(*). SCO entered with a tactical advantage there, and they might have been able to get away with "Yo, IBM, put up!". That would certainly explain their lax approach to fact checking (eg their tradeshow presentation).

I think this strategy might have worked with a proprietery vendor-vs-proprietary vendor case, where neither party can see the other's source code before discovery. But Linux isn't proprietary. The code is available, the development logs are available, and the community expects a solid argument.

SCO adopted a public strategy of discussing/alluding to the particulars of the case. They tried providing some cursory evidence so that they would look like good guys engaged in good business. Now they go to court, and it looks like SCO already has the evidence, and it seems like a waste of time to run around doing proper discovery when the plaintiff has already developed his case.

In short, they've completely blown the tactical advantage they had -- in fact, they've given it to IBM.

(*) By "Unix", IBM probably meant the various Unix derivatives (which provide high-end things like JFS, XFS, NUMA), not the AT&T/SCO baseline.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 01:34 AM EST
I just read the entire PDF. My impression?

SCO is completely F$%@'ed.

McBride repeated over and over that SCO could not produce
evidence of infringement unless and until IBM gave them
all lines (development and production) of AIX and Dynix...
ever. McBride has said that they knew the judge would
rule this way... well he sure didn't tell his brother.
His brother basically said that if the Judge granted the
order that she did... that SCO could not comply with
meaningfull evidence and a grave miscarriage of justice
will have occured. SCO is completely F#$#'ed.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: eamacnaghten on Friday, December 12 2003 @ 01:38 AM EST
A formatted version of Beyonder's OCR (less headers and footers)...

http://www.eddy.me.uk/gl/d88n.txt

[ Reply to This | # ]

Transcription Finished - no more help needed
Authored by: PJ on Friday, December 12 2003 @ 01:48 AM EST
Hi, we have it all in text now. So, no more transcribers needed. Thanks. Just
formatting and when that is done, I'll put it up.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM - Lapsus
Authored by: MyPersonalOpinio on Friday, December 12 2003 @ 02:01 AM EST

Please note that there is a couple of "MR. MCBRIBE" where it should say MCBRIDE

I'm guessing it was a slip of the mind of the transcriber (just kidding)

Permission granted to remove this post after the spelling is fixed :)

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: whoever57 on Friday, December 12 2003 @ 02:05 AM EST
MR. MCBRIBE: Would you prefer ...

What a wonderful typo!

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

[ Reply to This | # ]

Times up for amended complaint
Authored by: Icicle Spider on Friday, December 12 2003 @ 02:07 AM EST
MR. MCBRIDE: [...] And by the way, Your Honor, I will proffer to the Court that we are filling a second amended complaint that has copyright infringement claims, and will be filed within the coming few days or no less than a week. [...]
No sign of this yet, is there?

Pat

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: reuben on Friday, December 12 2003 @ 03:44 AM EST
The Copyright Act does not allow anyone to copy a method or an idea or a concept. That's specifically outside the realm of copyright law. [...] IBM made every company hold methods and concepts as confidential information, recognizing that that was not protectable by copyright law, but they wanted to make sure they had it in the contract law.

This matches the court recorder's version, but surely it should read "does not allow anyone to copyright a method or an idea or a concept." This seems to make more sense and is confirmed a few lines later when McBride mentions again that these are not protected by copyright law.

My first reading was that K. McBride was trying to claim copyright protection for these non-literal things, as Darl has hinted, but I am pretty sure this must be a typo on the court reporter's part since he says the opposite just a little later.

Thanks for all the terrific work, PJ and others!

[ Reply to This | # ]

The Transcript Reveals some of the real reasons for the Lawsuit
Authored by: OldPro on Friday, December 12 2003 @ 03:56 AM EST
I hope I am not duplicating someone else's efforts, but I don't recall this theory being suggested before on this site. I think the McBrides actually believe that IBM has cheated Caldera and are acting with righteous indignation. Reading the transcript (Bold and Italics mine)

SCO also prepared its own derivative work of Unix that it calls Unixware.

SCO, in the early days, carved out a little niche in the Unix world that it would develop a version of Unix only for Intel processors. Nobody else wanted that space because Intel's processing power wasn't very good back then. But Intel's processing power got better and better, and lo and behold, in about 1995, SCO found itself in a really great position. Intel was now being -- Intel chips were now becoming powerful enough that corporations actually wanted to use them for large functions. And here we were at SCO, lo and behold, the only company that had an operating system running on Intel. And so, Your Honor, the SCO Company, as it delineated in paragraph 51, from and after September 1995 spent a lot of money, for us. I've heard the numbers 30 to 50 million, and I can't remember which, so I better not represent too much. But for a small company, this company spent a lot of money in making sure that its version of Unix would run very, very well on Intel-based machines. IBM had none of that information, none whatsoever.

Our little company in 1997 and 1998 had spent 18 months, as outlined in our allegations in the complaint, developing the technology for 64-bit Unix processing on Intel. IBM had none of that technology. IBM had no ability to convert anything from its operating system onto an Intel-based machine. They had no available technology. They couldn't do it. And yet Intel processors were becoming the thing every company wanted to run their systems on. So IBM was being left out in the cold without an operating system that they could sell.

Well, in traditional IBM fashion, they came to us and asked us to partner, because that's what they do with companies, they partner and that makes a lot of sense. But in the process of this partnership, things went awry. We gave IBM all of our knowledge that we had spent 16 months developing about how to run Unix on Intel processors. We had that. That's trade secret stuff. IBM didn't have any of that. We gave it all to them in the joint development project. And at the same time, IBM is developing Linux without telling us. So we sail along. We give them all this trade secret information. This is the core of our trade secrets case, the joint development agreement between the companies that started in the 1997 time frame called Project Monterey. We gave them more knowledge than they had as a company about how to run Unix on Intel processors. They needed that. They took that from us. They then went and said, Thank you very much. We decided not to do the joint development project. Have a nice life. Took all of our technology and gave it to Linux.

Similarly, from former Caldera's chairman Ransom Love's interview with eWeek (h++p://www.eweek.com/article2/0,4149,1300401,00.asp)

Love: That's right. There were many reasons we bought SCO: its then-strong reseller community; its incredible installed base of replicated business where Linux could play well; its engineering talent; its global support infrastructure; and what we then thought of as the future of our product base—Project Monterey.

Editor's note: Project Monterey was a deal between SCO and IBM, with Intel's support, to develop an enterprise Unix that could run on systems based on Intel's IA-32 and IA-64 architectures as well as IBM's POWER4 processor. The result would have been a single product line supporting systems ranging from entry-level servers to large enterprise environments.

Love: We were really excited about Monterey as the next product step for Caldera/SCO. With it, we would move a combined Unix and Linux to a 64-bit platform. We were counting on it, and senior IBM executives had assured us that they wanted Monterey.

Then, IBM decided to name it AIX 5L (on August 22, 2000, 20 days after Caldera had bought SCO), and they wouldn't release [Monterey] on Intel. That became a real problem for us. SCO had depended entirely on Monterey on IA-64 for the future of our Unix and Linux product lines. IBM did offer some payment for our development troubles, but it was insufficient.

In other words, this little company bets the future on Project Monterey and then, less than three weeks after the deal is completed, IBM cuts them off at the knees!

Now I am sure that many of you are already getting the knives out to cut some of these arguments to ribbons (and no, I did not forget OS/2), but that is not the point. The point is that Darl McBride was, from Ransom Love's comments, part of Caldera at that time. Also remember that neither McBride seems very "techie". I firmly believe that Darl McBride believes that Caldera was cheated by IBM and that the real core of the lawsuit goes back to Project Monterey. To make matters worse, not only did IBM steal Caldera's efforts, now they are giving it away! And they are giving it to the community that is taking all of their business! Anyway, you get the picture.

I believe this is why they wanted all of the source code to AIX, all of the intermediate builds, all of the developer notes, etc. The Unixware/Aix comparison IS a proprietary software versus proprietary software issue. SCOG needs to be able to trace the concepts, the ideas, the "methods" if you will, from Project Monterey as they evolve into AIX and then into the format of the code placed into Linux. As an development project, I suspect that the actual copyright attributions of specific code may not have been assigned or even determined when the project broke up. And then there are the techniques of running Unix on Intel. Are those trade secrets? Copyright violations? Disregarding of Contractual obligations?

Of course, it also looks like the McBride's righteous indignation also caused them to run off at the mouth and attempt to play the case in the media by showing off some of the "millions" of lines of identical code. Now they are in a position of coming up with these examples (and possible limiting their case to the items in their responses? IANAL!).

Well, that's my theory. PJ, your site is truly amazing. I have learned so much about so many things, I am just amazed at the quality and the knowledge of many of the posters here. I would like to see some of these people take this idea and poke holes in it or run with it or whatever. Thanks for listening!

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: DeepBlue on Friday, December 12 2003 @ 04:10 AM EST
"The -- what we need to get our arms around collectively, on our side and on IBM's side, is a clear definition of what source code is at issue, what source code is potentially an infringement." I wouldn't say Amen to that - the key word is potentially. Their argument is that potentially every line of code IBM has given to Linux is an infringement therefore they want the whole lot.

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Is this a jab?
Authored by: Anonymous on Friday, December 12 2003 @ 04:15 AM EST
This, Your Honor, is, as you can read for yourself, one of many statements made by this company about its great evidence against IBM, and yet it refuses to give us the evidence on which it's based its present business model.

Is this a jab at SCO's new litigation business model, or am I reading this wrong? Sounds like a jab to me. And good one, too. Go Marriott!

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The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: brian on Friday, December 12 2003 @ 04:18 AM EST
My impressions...

Kevin McBride decided on an extempranious delivery for
this hearing while IBM went for the point to point
apporach. This leads to several statements like the
following:

"MR. MCBRIDE: One very brief sur-reply. Your Honor? We
want the 40 million pages. We'll digest it."

Where even the judge is mocking them:

"THE COURT: Are you yourself going to review them by
Sunday, Mr. McBride?"

This is not a good thing to have happen in a hearing even
a discovery hearing. The question you have to ask is why
Kevin chose to use this "off the cuff" style knowing full
well that IBM was going to once again assert it's claims
that it has a right to know EXACTLY what code infringes?

I'd like to look at that aspect and a further statement by
Darl McBribe after this hearing:

We expected not winning this hearing...

THis suggests to me that either SCO's delay tactics (in
SCO's mind) ARE working and they intend to come up with
more (IE: The "Linux hackers" got it all and trashed our
systems in the process type of deal).

A a personal opinion, I don't think SCO really intends to
go to court with any of this and is simply using this case
for other reasons that have been speculated here (IE: pump
and dump, buy out potential, etc...)

It will be interesting to see what the next delay will be.

B.

---
#ifndef IANAL
#define IANAL
#endif

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prize quote from McBride
Authored by: red_guy on Friday, December 12 2003 @ 04:54 AM EST
" Linux is a free operating system that's distributed free of charge and
is literally undermining, totally, the entire operating system environment for
Unix users in the corporate world of Fortune 1000 and thereabouts."

Is he stating here that competition on the OS market is not good for consumers?

So because Linux undermines Fortune 1000 companies, SCO should sue those
companies. In a non-undermining (at least not totally) way.

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Disturbing Behavior
Authored by: KuriosD on Friday, December 12 2003 @ 05:29 AM EST
I'd like to preface my statements with a couple clarifying points that I will
number for readability.
1. I'm not a lawyer, or any sort of legal professional. Heck, I'm not even
properly educated (at least so far as the majority of our society would seek to
define "educated).
2. I generally disagree with intellectual property rights, as did many of our
founding fathers. Few issues were so hotly debated in the formation of our
country and its legal documentation.
3. I generally promote Linux, Open Source, and IBM's side of this case. SCO
group has done little but disgust me, but I digress.
Now, on with the shiznit...

Having read through this transcript, I'm compelled to add a couple cents to
this whole ordeal. I've been following this case closely for the past several
months, but this is the first time I've read any direct transcripts from the
case. All of my previous reading was in the domain of tech-related articles,
and statements by Mr. Darl McBride (whom I've come to dislike greatly).

It seems to me that the two attorneys are arguing for quite different things at
this juncture. The SCO Group (henceforth SCOG) wants a complete release of all
AIX source code, back to its inception. IBM wants a release of which lines of
code are in contention. Simple as that. More important is the reasoning for
these requests.

SCOG's original claim (so far as any explanations I've read) implied that IBM
had misappropriated SCOG developed code for use in the Linux OS. From the
reading of this transcript I gather that SCOG actually claims to have contracts
with IBM that declare any derivitive works of their Unix OS, as licensed to IBM,
to be protected property (Patent, TM, and Copyright). A derivitive work in this
case includes technologies developed from the source code, with the express
intent of extending that code. Thus, any technologies that extend or expand
upon this intellectual property (ugh) can be used for the licensee's benefit
(financial or otherwise), but cannot be given or sold to any competing group
(ie. Linux).

IBM is holding a contention (rightfully so in the first case, not so much in the
second) that the claimant must produce information concerning which pieces of
code have been misappropriated. In general, I agree with this claim, with some
caveats. Specifically, this is dependant on whether SCOG's claim is over their
source, or over derivitive works.

In this case, I can't help but wonder what the exact text of the contracts
between IBM and AT&T (cum SCOG) are. It seems that IBM (as stated above)
has the ability to extend and expand upon the code they licensed. If IBM's
contract with AT&T boils down to this, it only follows that IBM should have
to produce the entirety of AIX's source code (from inception) to the license
holder of the original work (SCOG), so that the license holder can then
determine which derivitive works have been misappropriated. I tend to wonder
why the contract does not in fact hold clauses requiring IBM to provide their
source to the contract holder on a regular basis (if it does not). God I hate
to be on SCOG's side on that...

Now, on with some of the points which disturb me the most. First and foremost,
the concept of a derivitive work so far as it applies to software engineering is
incredibly loose. SCOG is contending that IBM stole information that pertained
to the development of the UNIX OS on 32-bit Intel systems, while Linux was
original developed (and predated IBM's involvement, in so far as I'm aware) as
a 32-bit Intel x86 based OS. Without proper definition of "derivitive
work" as it applies to software, the standing contracts with SCOG could
prevent IBM ever being involved with the development of any OS used on x86 based
processors, which seems absurd to me (notwithstanding clean room development,
which is difficult to prove in a court of law).

Some of my other reading seems to indicate that SCOG itself contributed some of
its SysV IP to the Linux code, which would set a legal precedent (unless I'm
completely ignorant) as to their licensee's ability to contribute code
(derivitive or otherwise) to Linux's code.

What grates me most is the transference of IP owners in this case. So far as I
understand this, it was never any work of SCOG itself that IBM may (or may not)
have misappropriated. UNIX was originally developed by AT&T, which was
eventually transferred to a subdivision, Unixlabs or some-such. This property
was then sold to Novell some time in the 1980s, while some of its IP had already
been allowed to be open-sourced in the case against Berkely Systems (FreeBSD,
etc.). Novell then developed the UnixWare OS from which IP, SCOG (then Caldera
Systems) is claiming was shared with IBM. This UnixWare (as well as the Unix
patents, copyrights and trademarks) was then sold to Caldera Systems, who
somehow transformed into the SCO Group. In no case here did SCOG actually
develop the code that is in contention. What we have are legal concerns chasing
around a contract, not the actual developers of the Intellectual Property (still
ugh!) in question.

To me, it is perfectly rational (though still up for debate) that a person (and
I stress PERSON) responsible for developing a concept, method or technology is
able to defend his ownership of that property. However, the ability to sell
that ownership of an idea to another body starts to come into question.
Further, the ability of a third body (not a PERSON mind you, but a discorporial
corporation in the most vague sense) to defend their ownership of that idea is
absolute crap. I know my belief here is in stark contrast to US IP law, but
what the hell... Why do discorporate (not tied to people) entities such as
corporations have rights that we as people do not? These corporations can
continue holding IP rights ad infinitum, while merely mortal people are screwed
out of more and more IP as time passes. In the past, public domain had real
power. In an age where corporations extend well beyond the lives of their
founders, public domain ceases to exist. This is a promise of nothing but
slavery and servility to such IP holding corporations for our future
generations.

Copyright, Patent and Trade Mark, as protected by US law should protect the
inventor (a person) of that work, and perhaps their estate into some portion of
time (72 years, I believe). However, a corporation (a discorporate entity,
immortal so far as any understanding of mortality is concerned) should not
in-and-of-itself be allowed to own these things. This ownership subverts
intellectual property's ability to enter the public domain. This is of
tremendous detrement to humanity in general, and only builds back up to the
monarchies of old... After all, what is of more value these days than
information? - (yeah, food, I know...)

On a review basis... SCOG's case was very difficult to read, relying heavily
on paperwork handed to the judge. His statements were laden with jargon, and
more than once made me want to stop reading. In contrast, IBM's case was clear
and concise, using metaphors that were entirely relevant to the case. It was a
joy reading Marriot's arguements, and I fully understand why he's (probably)
one of the best paid corporate lawyers in the nation. I felt the judge sided
heavily with IBM, and it's because Marriot made a clear effort to communicate
his intentions thoughtfully and clearly. Kudos, IBM!

Now, why isn't the actual contract between IBM & AT&T concerning the
UNIX OS available? This is where SCOG should be striking, if they have a leg to
stand on...

Anyway, I'm pretty much tapped out on this one. Back to my whiskey bottle
now.

~KuriosD

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Is it just me or does McBride use an odd turn of phrase?
Authored by: Anonymous on Friday, December 12 2003 @ 05:52 AM EST

For instance when he's talking about Marriott, he continually refers to IBM as Mr Marriott's client, and when Marriott talks about IBM he simply calls them IBM, but then McBride talks about SCO it's all we did this, we did that.

For instance:

  • "We gave them more knowledge than they had..."
  • "Our little company in 1997 and 1998 had spent 18 months..."
  • "Took all of our technology..."
  • "The other thing that our little company did..."

The funny thing is, "Our little company" was a different company then and the McBrides weren't anywhere on the scene.

[ Reply to This | # ]

Future Sanctions and Affidavits
Authored by: jamesw on Friday, December 12 2003 @ 07:20 AM EST
Mr. Marriott said:
In the Porous case, Your Honor, for example, which case concerned canisters, the Court there granted a motion to compel specificity in answers. The Court said that failure to identify trade secrets with sufficient specificity renders the Court -- and that was what the Court was referring to earlier -- powerless to enforce any trade secret claim.

(My emphasis, obviously).

"Well, Your Honor, in the absence of a reasonable answer, other courts have dismissed".

IBM never told the Court that this was what they should do, or that this was necessarily appropriate in this case. They just mentioned the possibility, ready for the next hearing...


Later, the Judge said:

SCO is to file its responses within 30 days of the entry of this order, and if, for some reason, it is in good faith unable to obtain a particular portion of that, then it must file the appropriate affidavits indicating why it cannot.

I read this as leaving SCO the option to file what it can (if anything, obviously), with an affidavit saying "we think this bit of Linux code comes from Dynix or AIX, and here's why, but without the AIX and Dynix source code history we can't show exactly what happened, so we can't put it in the main filing". (Comments in the source code saying "based on Sequent implementation" could be useful).

I suspect that SCO will find it has to file something like this. Darl has continually alleged that SCO had evidence that varying huge numbers of lines of SCO code were put into Linux. IBM has called them on it: that's what much of the IBM counter-claim is about.

SCO have two options in their response. If they try to specify lots of code, then we believe that they will have very poor evidence for most or all of it. Neither juries nor judges appreciate that. IBM will be able to have a field day (week, month) demolishing it: they will be able to accustom the court and the jury into thinking that SCO have no evidence, and that their case as a whole is laughably frivolous.

But if they just specify their "best" examples of "infringing" code, then IBM can ask "what happened to the rest of it" in the counter-suit hearings. SCO needs to be able to point to something and say "we believe there is more code out there, and believed we could get discovery to show it in court, but it turns out we can't. Sorry: that was what we thought at the time".

IBM should be able to demolish that, too, but it makes a better line for SCO than "no, there never was evidence for that many lines of code infringing" or "no, we lied to the Court during discovery by not turning over all our allegations".

The mills of justice and IBM may grind slowly, but there is something exceptionally inevitable about them.

James.

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IBM's public statements.
Authored by: amcguinn on Friday, December 12 2003 @ 07:21 AM EST
The current SCO line is "we don't know what IBM took from AIX to put into Linux, but we know there's some stuff, because they said there was themselves."

But what were IBM allowed to do, and what not?

SCO say IBM were not allowed to copy code from AIX to Linux, even if it was purely IBM's code. This is based on a plausible, but not unarguable, reading of the various contracts.

SCO say IBM were not allowed to disclose trade secrets embodied in the Unixware code that IBM got as part of Monterrey. It seems plain that IBM should keep those trade secrets, if they existed, confidential. These are SCO's trade secrets, so SCO should know what they are and should be able to define them, therefore I'm going to forget about them until SCO actually do say what they are.

SCO might claim that IBM were not allowed to use "methods, techniques and know-how" gained from developing AIX in enhancing Linux. SCO have not spelled this out, and it seems very difficult for them to make this claim outright.

SCO say they do not have direct evidence, other than IBM's public statements and Linux's (to them) suspicious rate of improvement, that IBM did any of these things.

They quote the following in para 95-97 of their complaint.

IBM (Robert LeBlanc) quotes:

"Right now the Linux kernel does not support all the capabilities of AIX. We’ve been working on AIX for 20 years. Linux is still young. We’re helping Linux kernel up to that level. We understand where the kernel is. We have a lot of people working now as part of the kernel team. At the end of the day, the customer makes the choice, whether we write for AIX or for Linux.

"We’re willing to open source any part of AIX that the Linux community considers valuable. We have open-sourced the journal file system, print driver for the Omniprint. AIX is 1.5 million lines of code. If we dump that on the open source community then are people going to understand it? You’re better off taking bits and pieces and the expertise that we bring along with it. We have made a conscious decision to keep contributing."

comment "attributed to IBM" by e-business developer:
"IBM received help from the open-source community with these changes and in return, released parts of its AIX OS to open source. IBM then sold its mainframes running Linux to Banco Mercantile and Telia Telecommunications, replacing 30 Windows NT boxes and 70 Sun boxes respectively - obviously a win for IBM, which reduced its cost of maintaining a proprietary OS while increasing its developer base. IBM's AIX contributions were integrated into the standard Linux source tree, a win for open source.
Linuxworld
"IBM will exploit its expertise in AIX to bring Linux up to par with UNIX, an IBM executive said Thursday.

During his keynote at LinuxWorld here, IBM Senior Vice President and group executive Steve Mills acknowledged that Linux lags behind UNIX in scalability, SMP support, fail-over capabilities and reliability--but not for long.

‘The pathway to get there is an eight-lane highway,’ Mills said, noting that IBM's deep experience with AIX and its 250-member open-source development team will be applied to make the Linux kernel as strong as that of UNIX. ‘The road to get there is well understood.’

There are other quotes, which tell of IBM wanting Linux to succeed and wanting to use Linux, but not talking about IBM actually improving Linux. I've left them out.

Looking at these quotes, only jfs and a print driver are actually identified as having been contributed to Linux. jfs is an odd case because the Linux jfs code actually originated with OS/2, not AIX. The print driver would be a perfect test of SCO's contract theory, but SCO are perhaps reluctant, after talking about billions of dollars worth of damages, to centre attention on IBM's use of driver software for their own printer.

Much of the rest of the quotes are about IBM using the exerience gained by developing AIX to help Linux. That comes under my third category, which I think SCO have very little basis to object to. If an IBM guy says "We found when doing 8-way SMP, it is better to do locking this way rather than that way", for instance, he's not disclosing anything of the "Software Product" (AIX). He's not even disclosing stuff gained from studying the "Software Product". He's talking about stuff learned from developing the "Software Product", and it's really hard to see, under any reading of the contracts, how SCO can stop him from doing that.

There are other general quotes about "IBM's AIX contributions". Read literally, these are somewhat incriminating (given SCO's debatable interpretation of the contracts). But who takes IT companies' public promises literally? IBM is talking big about helping Linux, and we all know, and can remember, that that help was often being held back by their legal department. We can now see that those lawyers knew something (rather a lot, actually) that we didn't!

It's easy to see how those statements by IBM looked like a case for SCO, but on examination, the case is a lot weaker than they probably assumed at first glance.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 08:15 AM EST
was this scanned in with an OCR? there seem to be a few typographical error.

[ Reply to This | # ]

Derivative Works and Picture Frames
Authored by: gvc on Friday, December 12 2003 @ 09:20 AM EST
A number of landmark cases regarding derivative works have involved the mounting of pictures in frames, tiles, or other structures (cf. http://www.cll.com/a rticles/article.cfm?articleid=26).

While the rulings in these cases aren't directly relevant - they all speak to whether or not the mounted image is a derivative work of the original - I believe the analogy of a mounted picture is apropos.

AT&T Unix is an original work (albeit not necessarily of AT&T's sole authorship). AIX is an embodiment of Unix, akin to the mounted picture. As such, AIX in its entirely is a derivative work and amenable to copyright protection in its own right. But JFS, NUMA, and other scaffolding by themselves are no more derivative of Unix than the frame and glue (sans picture) are derivative of the picture in the cases cited above. It has been abundantly clear for months that the crux of SCO's case is that the frame, glue, etc. are an inseparable part of the derivative work. While I think that this claim is specious, I have not seen any case that rules on it. If somehow this matter could be decided as a matter of law, it would obviate a great deal of discovery, and focus the rest.

[ Reply to This | # ]

Please report this to the press
Authored by: kuwan on Friday, December 12 2003 @ 09:39 AM EST
I haven't been able to read the complete transcript yet, but I've read
enough to know that this really needs to be reported to the mainstream
media. It will soon be out on all the usual tech sites, but this needs to
get to the reporters that SCO has been lying to.

For anyone who has the time, please email as many mainstream press
outlets as you can. I've got to work, otherwise I'd do it myself. My
impression is that reporters don't like getting lied to, so if we can show
them that SCO has admitted in court that they have no evidence while
they've been screaming to the press that they have tons of evidence then
the tide of the press will turn against SCO.

Thanks to everyone that helped in putting the transcript together!

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 09:42 AM EST
And THERE it is! The sole reason why they're going to lose, why all the media should be making fun of them, why basically their case should have been thrown out right then and there.

"We need them to produce all the development notes of their developers from AIX. Then we will have the capability of being able to compare what IBM's contributions are lined up against our codes, and then we'll make a very clear specification of where the violations are, and then we'll end up at that point arguing about what kind of violations they are."

[ Reply to This | # ]

AT&T Made all of Unix -- SCO
Authored by: corran__horn on Friday, December 12 2003 @ 10:51 AM EST
hmmm, this seems to describe SCO's understanding of Unix history (from McBride):
In the beginning of the corporate software world, there was AT&T. AT&T created Unix. Unix is the corporate operating system of choice that all corporations use at the Fortune 1000 level and significantly below that. It just works better than Microsoft Windows when you have a large distributed environment. So companies have used Unix for 20 years or more. AT&T made all this stuff. Then AT&T wanted to create larger markets for it and licensed . .. Mr. Marriott's client, IBM, and a number of other companies, Hewlett Packard and all those large software vendors, allowing each company to create its own derivative work based on top of Unix. And so, thus, we have in the chart, Your Honor, in the upper left-hand side just a really description that points out that IBM software product that we're trying to get produced in this case and that is at issue in this case is part stuff that came from AT&T and part stuff that it made by itself. The derivative work is stuff it made by itself.
Insert comment about just being _wrong_, AT&T didn't craft it alone, but by exclusion McBride is either showing his insufficient knowledge, or actively playing on the lack of historical knowledge of everyone to cast Unix's heratage in a different light.

---
#INCLUDE
#DEFINE SCO LOSE

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The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 11:07 AM EST
Are we sure that this line is correct?:

"There is no trade secret in Unix system files."

To me, it sounds like he said:

"There is no trade secret in Unix system FIVE."

As in, distinguished from UnixWare.

mickeym

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The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 11:10 AM EST
Your Honour,

As prosecution for Mr Superstore, we know that Mr Thief stole from us and we
know what it was that he stole and where it is now, and we have CCTV footage of
him stealing it but we cannot tell the court what it was that he stole or how he
stole it or how we know that he stole it or show the tapes.

But he did, honest, and we'd like to lock him up. Oh, and Mr Thief hasn't
given us every item he owns in order for us to check that any of his possessions
are what he stole from us. He also hasn't provided us with a complete list of
everything that he's ever owned. We ask the Court to compel him to do that for
us.

But we know he stole it and when the defence asks us what it is that he stole,
it's up to them to find out, Your Honour.

Prosecution rests it's case.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: pooky on Friday, December 12 2003 @ 11:18 AM EST

Lets looks at the facts around SCO’s complaint. SCO’s original complaint (quoted below) states that it knows that IBM has improperly contributed UNIX code into Linux. (Paragraphs 101 – 103 and 108). Paragraph 103 states quite clearly that SCO knows IBM contributed UNIX code into Linux. They also clearly accuse IBM of misappropriating SCO’s trade secrets.

101. On information and belief, IBM has knowingly induced, encouraged, and enabled others to distribute proprietary information in an attempt to conceal its own legal liability for such distributions

102. IBM is affirmatively taking steps to destroy all value of UNIX by improperly extracting and using the confidential and proprietary information it acquired from UNIX and dumping that information into the open source community. As part of this effort, IBM has heavily invested in the following projects to further eliminate the viability of UNIX

This is the paragraph I believe Mr. Marriot is actually referring to, the embodiment of SCO’s complaint against IBM.

103. But for IBM’s coordination of the development of enterprise Linux, and the misappropriation of UNIX to accomplish that objective, the Linux development community would not timely develop the quality or customer support necessary for wide-spread use in the enterprise market.

108. IBM, through improper means acquired and misappropriated SCO’s Trade Secrets for its own use and benefit, for use in competition with SCO and in an effort to destroy SCO.

This a clear reference to “Project Monterrey”

http://www.sco.com/scosource/complaint3.06.03.html

Ba sically the nutshell of this is SCO says they know for a fact that IBM contributed SCO trade secrets in UNIX into Linux. It also implies that IBM also misappropriated UnixWare code into Linux.

Kevin McBride’s statements in court seem to contradict this language in the complaint:

“but I'll clearly say that System 5 is in the book that Mr. Marriott referred to and properly so. There's nothing secret in there. There may be copyrighted code in there and we assert that there is, but that's not trade secret”

In this statement he says quite clearly that Unix System 5 contains no secrets, maybe copyrighted material, but no trade secrets. SCO’s complaint is not about copyrighted code, it is specifically about misappropriation of trade secrets. So Mr. Mcbride has stated that the System 5 code is not the cause of SCO’s complaint against IBM.

And part of what they've prepared is going to be confidential information, mandated to be kept secret under the license agreement and a breach of the scope clause, according to us, but we don't know what they've done with the derivative work so we can't point out what we don't know.

Kevin McBride suggests in this paragraph and specifically this quote that SCO does not know what IBM has done with its derivative works, that they clearly own (and that SCO accepts they own).

“And once we see AIX and all versions of it, then we will be in a position to be able to say, Huh, you know what? This stuff you did in derivative works, you own it, but you contributed to Linux improperly, and, therefore, we have a claim in state law contract for breach of confidential information, which is completely separate from trade secrets.”

This statement says it all. Kevin McBride states quite clearly they need to see all versions of AIX before SCO can figure out what IBM misappropriated into Linux.

If you read the original complaint, Kevin McBride contradicted most of the basis for SCO’s complaint against IBM:

1. SCO’s complaint says they know IBM contributed trade secrets from UNIX into Linux.
Kevin McBride contradicts this claim several times in his speech to the magistrate by stating they don’t know what IBM contributed until they see IBM’s source code.

2. SCO’s complaint is specifically about trade secrets.
Kevin McBride stated quite clearly that UNIX System 5 contains no trade secrets. This code therefore cannot be the basis of SCO’s complaint against IBM if this is the case.

3. SCO’s complaint also says IBM misappropriated information from Project Monterrey into Linux and obtained this code improperly
If SCO knows this for a fact, then this contradicts statements Kevin McBride made during his oral argument. He stated quite clearly that SCO doesn’t know what IBM contributed until SCO sees IBM’s AIX source code.

SCO keeps mentioning but washing over Project Monterrey in their complaint, public arguments against IBM, and in the court filings; however it seems this is the only thing they really have any cause for complaining about trade secret misappropriation. If SCO’s complaint boils down to this code, SCO has no basis for needing to see AIX source code to determine what IBM copied into Linux since SCO claims it came from Project Monterrey.

This has been said before but I’ll state my opinion again with the above to back up my reasoning. SCO has no factual basis for their complaint against IBM, only public statements and the “belief” that IBM misappropriated code from a failed joint project. The entire case appears to be a mechanism for SCO to obtain code it is not otherwise entitled to so they may form an amended complaint against IBM with the fruits of their discovery, and it is this amended complaint where they expect to be able to beat IBM in court, not the original complaint.

I also submit that while it’s possible that Kevin McBride is simply a third rate lawyer and is getting carried away with his arguments in court, his statements embody his and SCO’s actual beliefs about their case against IBM, since Kevin and SCO in general with previous filings has stated several times now that they require IBM’s discovery of AIX source code in order to know specifically what IBM did.

It is clear SCO has no specifics against IBM and I do not believe they will be able to provide a satisfactory answer to IBM’s discovery order. Everything will hinge on whether SCO can convince the judge their “evidence” is credible, although it’s pretty clear to everyone that it will be next to impossible to determine who copied UNIX source into Linux.

-pooky

---
IANAL, etc...

[ Reply to This | # ]

Why Darl's Mouth is Bad for this Case
Authored by: red floyd on Friday, December 12 2003 @ 11:38 AM EST
The part I found interesting was that Darl's big mouth is causing him problems in court.
THE COURT: But isn't SCO also saddled with, for lack of a better term, having made public statements itself concerning this case? I mean, it's not just IBM making comments about the contributions to Linux.

MR. MCBRIDE: Right.

THE COURT: Isn't it also SCO making comments about trade secrets and what it would show in court?

Looks like the judge is aware that SCO is spinning FUD, and may consider that in his rulings.

---
"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." -- Benjamin Franklin

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 12:16 PM EST

Our little company in 1997 and 1998 had spent 18 months, as outlined in our allegations in the complaint, developing the technology for 64-bit Unix processing on Intel. IBM had none of that technology. IBM had no ability to convert anything from its operating system onto an Intel-based machine. They had no available technology. They couldn't do it.

Yeah right. Nobody except SCO (old SCO) could do 64 bit. Except if you look here for the official release of NetBSD for the 64-bit Alpha processor. In 1995: years before SCO's long hard and "unique" work...

NetBSD for intel hardware existed for longer already - the port-i386 mailing list archive goes back to 1993.

[ Reply to This | # ]

Grep for "Methods and Concepts" in case law?
Authored by: Anonymous on Friday, December 12 2003 @ 12:57 PM EST
Hi,

There's the fragrant "methods and concepts" again. All the legal
types here seem to be in complete agreement that there is no basis in law for
protection of "methods and concepts", if those methods and concepts
do not constitute trade secrets.

I can't help but wonder though if there's some weird document in some strange
court somewhere in the US where the judge ruled that protection of
"methods and concepts" was somehow built into, say, copyright law.
And if some future filing of SCO will make use of such a document.

So my real question is, can we do phrase searches on court rulings? It might be
useful to see if "methods and concepts" pops up anywhere.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 02:21 PM EST
IBM, while the "good guy" in this play, is also subject to
management changes.

They are already more powerful than makes me comfortable. They haven't been
misusing it, but I'm not going to hope for them to get *more* power. Red Hat I
would hope for. It may be a big player in the community, but the entire
community is pretty small. (And Red Hat has been even more of a community
player, most of the time, than has IBM.)

But the ideal judgements not only honor correct behavior, but also act to
"level the playing field", i.e., they decentralize power rather than
concentrating it. This can be difficult, since IBM seems clearly the wronged
party (unless something *very* stange is going on), but also the more powerful
party.

To me the best possible outcome would be a finding that SCO had no enforceable
rights for anyone to claim. Plus fines, etc. Plus dismissal of the main case.
Plus sanctions for filing a frivilous lawsuit. And, of course, none of this
would affect the IBM vs. SCO case. (Which also makes me wince! I expect that
IBM is, again, clearly in the right. But that again acts to centralize power.
Of course, it also acts to reward good behavior, and penalize bad behavior,
which ought to be the *primary* purpose of the legal system.)

[ Reply to This | # ]

Two Pieces to SCO Case (SCOthink)...
Authored by: jkondis on Friday, December 12 2003 @ 02:31 PM EST
There are clearly two main subparts to the allegations (that is, until SCO files
the "copyright" allegations):

1) Trade Secret Misappropriation: IBM took SCO's trade secrets (namely, how to
write Intel-compatible OSs, and confusingly, how to specifically write an OS for
a 64-bit Intel processor) from SCO while SCO was working with IBM on Project
Monterey.
2) Contract Infringement: IBM violated contract provisions by contributing ideas
or code to Linux that came from Dynix. (Not necessarily derivative works of
SCO-owned IP, but stuff that Sequent or IBM added to Dynix, and then added to
Linux.)

These are two separate issues.

I think groklaw has successfully defeated #2. (Recall the discussions on the
Software Agreement Side Letter and depositions by AT&T people, for
example.)

What evidence is there to tackle #1? Is there any evidence *at all* that IBM
took SCO's trade secrets during Project Monterey and used them to better Linux?
What Intel-specific (or even ia64-specific) work did IBM do while working on
Linux?

...J

[ Reply to This | # ]

Sen. Orin Hatch - His Son Represents SCO
Authored by: Anonymous on Friday, December 12 2003 @ 03:03 PM EST
If you don't know Sen. Orin Hatch, you will soon enough. His son is one of the
attorney's representing SCO.

Here's a brief article.

http://www.sltrib.com/2003/Nov/11102003/utah/109766.asp

Down the road this could have serious implications. Don't ever fail to confuse
Law with Politics - the latter tends to be much more powerful.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 03:10 PM EST
IBM had no ability to convert anything from its operating system onto an Intel-based machine. They had no available technology. They couldn't do it. And yet Intel processors were becoming the thing every company wanted to run their systems on. So IBM was being left out in the cold without an operating system that they could sell.
This is not true. IBM personnel wrote the book of software engineering, through its experiences with the System360 project. IBM acquired specific experience by developing OS/2, which is capable to make good use of the Intel architecture, better than Microsoft. SCO should only state facts to the judge. One single lie like this one is proof that there might be more lies in McBride's argument. It should be enough to simply dismiss SCO until it could present a counsel who would only state truths.

[ Reply to This | # ]

Off-Topic - RedHat Suit?
Authored by: the_flatlander on Friday, December 12 2003 @ 03:12 PM EST
What's up with the RedHat suit? Are we in interminable hold mode or what? The
timelines and dockets that I have found, in my-not-very-exhaustive-search, all
end back in November and don't indicate when it's due to pick up again.
Anybody know?

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 04:23 PM EST
The scope clause of our license, that is to say AT&T -- SCO's license to IBM says the following: You may use this software product. You may modify it. You may create derivative works based thereon provided that your derivative works are treated as part of the original software product.

Does that not sound an awful lot like the idea behind the GPL that SCO finds so abhorrent? Hmm...

[ Reply to This | # ]

Judge: "Hand it to Mr. Willey. He's the brains behind this operation."
Authored by: atul on Friday, December 12 2003 @ 05:13 PM EST
Anyone here know who Mr. Willey is? Anyone here happen to *be* Mr. Willey,
possibly?

[ Reply to This | # ]

SCO Happy Moonbeam OK
Authored by: Tim Ransom on Friday, December 12 2003 @ 05:21 PM EST
After wading through Kaleidoscopic Kevin McBride's meandering talkathon, I think he may deserve a new euphemism for his unique brand of circumlocution.
My favourite part:
"You have to have the discovery of the universe, then we can argue about where the code falls in what bucket. That's the way to proceed in this case, we believe, Your Honor, and that's why a ruling under -- and I'll finish this by reading it and then I'll sit down."
This seemingly random choice of words doesn't really qualify as a Chewbacca Defense, as the Chewbacca Defense seeks to misdirect by focusing on the irrelevant, where this is an amorphous cloud of irrelevance with no focus.
Therefore, I humbly suggest that Mr. McBride's fog of incoherence be dubbed The Hello Kitty Defense.

Thanks again,

[ Reply to This | # ]

x86 UNIX History
Authored by: Anonymous on Friday, December 12 2003 @ 06:47 PM EST
Kevin McBride is confused and misleading the court. UnixWare was by no means the first port of UNIX to x86, nor was IBM late to the game with their own x86 UNIX derivative. I was there, a UNIX SVR4.2 developer at AT&T Unix System Laboratories (USL), in 1993.

By that time, the standard USL UNIX development platform was already x86. SCO was already shipping Xenix, an SVR3.2 x86 port. IBM had already been shipping their own BSD/UNIX x86 port since at least 1990 -- AIX 1.X on the PS/2. So, counting BSD386, there were four x86 ports (that I know of) already shipping by 1993.

UnixWare was not even a full UNIX port at all. It was a Netware stack and related userland tools, developed by Novell, bundled on top of USL's vanilla x86 SVR4.2 and reshipped by Novell. I remember doing compatibility testing of UnixWare builds we got back from Novell.

The UnixWare relationship led to Novell's purchase of USL from AT&T in June 1993. I remember the company party, June 14th, I think it was, down on the parking pad under our old building in Summit, NJ. The USL/SCO/Caldera/newSCO UNIX development group, and the UNIX source code tree, moved to Florham Park, NJ shortly after that, and is still there. I still have friends there, but don't dare ask them what they think of their current bosses in Utah. I'd bet, given the chance, they'd much rather work for IBM.

McBride's statements show his overall lack of knowledge of UNIX history, and yet his entire case revolves around some very fine details of that same history. My guess; Kevin and his brother got to talking one day and convinced each other they had a case. They got Boise involved, got funding to pay Boise, and Kevin probably thinks this is going to make his own career. Instead it looks like it will be a major disaster for all of them. They didn't do their homework.

[ Reply to This | # ]

  • x86 UNIX History - Authored by: Anonymous on Friday, December 12 2003 @ 10:41 PM EST
The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Friday, December 12 2003 @ 08:40 PM EST
ESTOPPEL issues from the hearing...

> FROM Disturbing Behavior
> Authored by: KuriosD on Friday, December 12 2003 @ 05:29 AM EST
>
> It seems to me that the two attorneys are arguing for quite different
things at
> this juncture. The SCO Group (henceforth SCOG) wants a complete release of
all
> AIX source code, back to its inception. IBM wants a release of which lines
of
> code are in contention. Simple as that. More important is the reasoning
for
> these requests.

Certainly each side has different objectives, and seeks different decisions from
the court at issue. Reducing the case as done by these comments obscures rather
than illuminates. A large body of statements, both on official court filings and
also in public relations campaigns have emanated from all parties concerned.

SCOG claims three types of grievences: copyright infringement, trade secret
betrayal, and contract violation of confidential material. They state that they
need specificity from IBM about how IBM shared these materials to segregate the
issues properly for purposes of arguing in court to defend themselves from
violations by IBM.

IBM claims foul: they are being defamed and sued, and they require specificity
to exercise a defendant's rights to defend its self in court against defamation
and injustice by court action. They are also countersuing and they claim
specificity is owed on the same basis as SCOGs claims for specificity in
discovery requests.

> SCOG's original claim (so far as any explanations I've read) implied
that IBM
> had misappropriated SCOG developed code for use in the Linux OS. From the
> reading of this transcript I gather that SCOG actually claims to have
contracts
> with IBM that declare any derivitive works of their Unix OS, as licensed
to IBM,
> to be protected property (Patent, TM, and Copyright). A derivitive work in
this
> case includes technologies developed from the source code, with the
express
> intent of extending that code. Thus, any technologies that extend or
expand
> upon this intellectual property (ugh) can be used for the licensee's
benefit
> (financial or otherwise), but cannot be given or sold to any competing
group
> (ie. Linux).

This is not accurate, true, or fair restatement of issues. The transcript is
clear: SCOG claims that they have contracts with IBM over Unixware intel
platform functionality, not covered by copyright, not covered by trade secret,
but covered by contractual confidentiality.

The law of ESTOPPEL prohibits a change of statements through the course of a
trial. A person may not at one point say "I was awakened at 8:00 a.m. by
sunlight streaming through the window into my eyes", and then later claim
"I slept past noon and have no idea if it was rain or shine that
morning". Two contradictory statements equates to at least one perjury (if
not two), and is prohibited by law. Once one claim is made you are stuck with
it. SCOG has narrowed their claims to Unixware as the source of copyright
infringement issues, and contractual confidentiality issues. However, they leave
the door open so that new discovered evidence does not estoppel them from
broadening their claim as they get a clearer picture.

A pre-existing contract between IBM and pre-SCOG owners of Unix has been pretty
much disavowed on copyright issues re System V by SCOG. Some trade secret and
contractual issues may exist.

Because there are trade secret issues and contractual confidentiality issues,
some materials in possession of the court and the parties is not public, and
will not become public. It is difficult to speculate based on scraps of public
information what the nature of these undisclosed agreements are, and what is
covered by them. Because IBM acquired a contractual version of Unix as Dynix, it
is impossible to determine the complications of that System V contract of trade
secrets and confidentiality from the materials made public.


> IBM is holding a contention (rightfully so in the first case, not so much
in the
> second) that the claimant must produce information concerning which pieces
of
> code have been misappropriated. In general, I agree with this claim, with
some
> caveats. Specifically, this is dependant on whether SCOG's claim is over
their
> source, or over derivitive works.

Since the contracts are secret, and concern secrets, it is futile to speculate
on what rights IBM surrendered in exchange for receipt of the benefits of the
contract. The nature of contracts are exchange of value to both sides: IBM gave
value (money) and received value (secrets). IBM is not known for charitable
donations of large sums of money to profit-making corporations. There is some
presumption that SCOG had something IBM desired, and that IBM received something
having monetary value.


> In this case, I can't help but wonder what the exact text of the
contracts
> between IBM and AT&T (cum SCOG) are. It seems that IBM (as stated
above)
> has the ability to extend and expand upon the code they licensed. If
IBM's
> contract with AT&T boils down to this, it only follows that IBM should
have
> to produce the entirety of AIX's source code (from inception) to the
license
> holder of the original work (SCOG), so that the license holder can then
> determine which derivitive works have been misappropriated. I tend to
wonder
> why the contract does not in fact hold clauses requiring IBM to provide
their
> source to the contract holder on a regular basis (if it does not). God I
hate
> to be on SCOG's side on that...

This is a restatement of SCOGs argument in court. They have three issues. They
bought the rights to contracts from the prior owner of UNIX binding IBM to trade
secrets and confidentiality (since copyrights are NOT an issue in this portion
of SCOGs claims). They also commenced contracts subsequently with IBM on trade
secrets, confidentiality, AND copyrights regarding Unixware. There are also
carry-over contracts between SCOG (and its predecessors-in-interest) and other
companies involved, including Dynix.


> Now, on with some of the points which disturb me the most. First and
foremost,
> the concept of a derivitive work so far as it applies to software
engineering is
> incredibly loose. SCOG is contending that IBM stole information that
pertained
> to the development of the UNIX OS on 32-bit Intel systems, while Linux
was
> original developed (and predated IBM's involvement, in so far as I'm
aware) as
> a 32-bit Intel x86 based OS. Without proper definition of
"derivitive
> work" as it applies to software, the standing contracts with SCOG
could
> prevent IBM ever being involved with the development of any OS used on x86
based
> processors, which seems absurd to me (notwithstanding clean room
development,
> which is difficult to prove in a court of law).

You are not differentiating Linux, the whole body of kernal and functionally
additive softwares, from the critical component units. This is an emotionally
manipulative course of action where clear cold logic is required. Linux is
improved over earlier incarnations, which nobody disputes. SCOG claims that some
of that improvement was from its multimillion dollar investment in programmer
talent which developed a better implimentation which IBM wanted and contracted
to obtain. The presumption is that IBM does not gift millions of dollars cash
money for things of no value, which every Linux enthusiast can probably agree on
is true.

Nobody in court, or out of court, has claimed that IBM is incompetent, and
cannot develop code. Nobody has claimed there is no competence whatsoever in the
Linux development community. What SCOG has claimed is that they carved a niche
for themselves and poured millions in investment funds in being leading edge in
intel implimentation of Unix-like, Linux-like, operating system functionality,
and that IBM contracted to obtain that functionality under terms of
self-restraint. SCOG has claimed that they perceive violation of those terms,
that IBM did not restrain itself, that there is a confusion by the several
contracts from prior-Unix ownership, and merger-acquisitions which makes it hard
to determine with precision how much injury has occurred from each (1) copyright
violations, (2) from trade secret violations, and (3) from violations of
contractual terms of confidentiality.

Until recently they had no particular reason to try to isolate each problem, but
now with lawsuit and countersuit, SCOG asks for source codes held by IBM which
may clarify the total claim of damages they argue in court.

Each side seeks to win, therefore gives up information begrudgingly and as close
to the deadline as possible to not help the other side build a stronger case --
this is typical American legal manouvering by both sides.


> Some of my other reading seems to indicate that SCOG itself contributed
some of
> its SysV IP to the Linux code, which would set a legal precedent (unless
I'm
> completely ignorant) as to their licensee's ability to contribute code
> (derivitive or otherwise) to Linux's code.

If I own a copyright, it is mine, mine, mine, and not yours. If I sell my
copyright it is yours and not mine. If I licence it to you, it is yours only
within the agreed upon boundaries of contract terms, which does not limit my
ownership rights to licence it, or even give it away elsewhere. Your logic is
not valid logic, it is not judicially based. SCOG can grant some licence to
Linux without thereby losing all of its otherwise reserved rights to materials
it withholds. SCOG can licence IBM, but restrict IBM's right to sublicence.
Since important information is secret and is not going to become public by
orders of this court, we may never know what IBMs terms were specifically over
what copyrighted, trade secret or confidential materials.

A large part of copyright pertaining to System V has been disavowed in court by
SCOG, but contracts and inherited contracts, and contracts obtained by merger
and acquisition, have not been disavowed. Do not concentrate on the least
important issues. The value asserted by SCOG and paid for by IBM is clearly in
the Unixware intel functionality.


> What grates me most is the transference of IP owners in this case. So far
as I
> understand this, it was never any work of SCOG itself that IBM may (or may
not)
> have misappropriated.

You need to go back and re-read the transcript again. This discussion needs to
move to a higher level. SCOG was a small operation once, just like Linux. It has
been through many dozens of millions of dollars of programmer payrolls. Your
assertion that they never did anything of worth is disputed by IBM itself, whom
voluntarily entered into a contract with SCOG to obtain confidential and trade
secret materials. It is not always cheaper to develop in-house, which is why
corporations acquire, merger, or form development agreements.

It is not in SCOGs interest to be goaded into placing in public domain its
technical details of improved intel functionality. No amount of false assertions
will clear the air on the value of their trade secrets or confidential
developments. As ever Linux stalwart has said from the beginning: "if
there is code in Linux improperly, we want to remove it".

However, at this late date, the confidential materials have been published, and
the trade secrets related to how Linuxware solved problems that others solved
less efficiently is already spread all over the internet, according to SCOG.

> UNIX was originally developed by AT&T, which was
> eventually transferred to a subdivision, Unixlabs or some-such. This
property
> was then sold to Novell some time in the 1980s, while some of its IP had
already
> been allowed to be open-sourced in the case against Berkely Systems
(FreeBSD,
> etc.). Novell then developed the UnixWare OS from which IP, SCOG (then
Caldera
> Systems) is claiming was shared with IBM. This UnixWare (as well as the
Unix
> patents, copyrights and trademarks) was then sold to Caldera Systems, who
> somehow transformed into the SCO Group. In no case here did SCOG actually
> develop the code that is in contention. What we have are legal concerns
chasing
> around a contract, not the actual developers of the Intellectual Property
(still
> ugh!) in question.

So you didn't build the house you live in, but you bought it pre-built from a
prior owner, and I can move in and push you out because you only BOUGHT IT? It
is not your because you bought it instead of built it? Does this logic apply to
cars? How about your clothes -- did you make them, or are they public domain?

SCOG has had a continuing infusion of money and a continuing payroll, and your
recounting every day of their life does not excuse violation of rights. SCOG has
accused IBM specifically of violation of rights and scheduled court action to
get to the bottom of it. Not all the evidence has been presented, ACCORDING TO
THE RULES OF EVIDENCE, and no premature conclusion is warranted.

SCOG has been bastards and assholes, but even bastards and assholes have legal
rights.


> To me, it is perfectly rational (though still up for debate) that a person
(and
> I stress PERSON) responsible for developing a concept, method or
technology is
> able to defend his ownership of that property. However, the ability to
sell
> that ownership of an idea to another body starts to come into question.

There is no question about it. It is law of the land. Like it or get out.


> Further, the ability of a third body (not a PERSON mind you, but a
discorporial
> corporation in the most vague sense) to defend their ownership of that
idea is
> absolute crap. I know my belief here is in stark contrast to US IP law,
but
> what the hell... Why do discorporate (not tied to people) entities such
as
> corporations have rights that we as people do not? These corporations can
> continue holding IP rights ad infinitum, while merely mortal people are
screwed
> out of more and more IP as time passes. In the past, public domain had
real
> power. In an age where corporations extend well beyond the lives of their
> founders, public domain ceases to exist. This is a promise of nothing but
> slavery and servility to such IP holding corporations for our future
> generations.

You have a lot of issues which are not particular to the case at hand. Your
grasp of history is seriously incomplete. Your apprehension of the dangers of
corporations is even woefully inadequate. Linux, when it gets big enough will
piss on people just like IBM, SCOG, or Microsoft. It may already be big enough.
That may be what SCOG is complaining about -- getting pissed on by the big
guys.

>
> Copyright, Patent and Trade Mark, as protected by US law should protect
the
> inventor (a person) of that work, and perhaps their estate into some
portion of
> time (72 years, I believe). However, a corporation (a discorporate
entity,
> immortal so far as any understanding of mortality is concerned) should
not
> in-and-of-itself be allowed to own these things. This ownership subverts
> intellectual property's ability to enter the public domain. This is of
> tremendous detrement to humanity in general, and only builds back up to
the
> monarchies of old... After all, what is of more value these days than
> information? - (yeah, food, I know...)
>
> On a review basis... SCOG's case was very difficult to read, relying
heavily
> on paperwork handed to the judge. His statements were laden with jargon,
and
> more than once made me want to stop reading. In contrast, IBM's case was
clear
> and concise, using metaphors that were entirely relevant to the case. It
was a
> joy reading Marriot's arguements, and I fully understand why he's
(probably)
> one of the best paid corporate lawyers in the nation. I felt the judge
sided
> heavily with IBM, and it's because Marriot made a clear effort to
communicate
> his intentions thoughtfully and clearly. Kudos, IBM!

You have never had to argue in front of a judge, it seems. Both sides used their
time to hammer their points. They had different points to hammer, so they
hammered them differently.

And your observation that the judge sided with IBM is of course correct. The
judge had a prepared ruling before the session and informed both parties what it
was. The judge is seeing materials we will never see because of the secrecy and
confidentiality issues.

However, two weeks after SCOG discloses, IBM is called to show cause why they
should not be likewise compelled to disclose. It is not lopsided, by any means.


> Now, why isn't the actual contract between IBM & AT&T concerning
the
> UNIX OS available? This is where SCOG should be striking, if they have a
leg to
> stand on...
>
> Anyway, I'm pretty much tapped out on this one. Back to my whiskey
bottle
> now.
>
> ~KuriosD

And that probably explaints much of the rant on corporations and IP...

Lion Kuntz

[ Reply to This | # ]

Public Statements
Authored by: Anonymous on Saturday, December 13 2003 @ 08:24 AM EST
MR. MCBRIDE: "The evidence that our executives have talked about in the public has had to do with Unix System 5 code contributed by Silicon Graphics. Has nothing to do with IBM."

Interesting. So this "thousands of lines of code" came from SGI eh? From what I understand, SGI committed something like 30 lines of code, that was promptly taken out and acknowledged by SGI. So all this huffing and puffing in the media is really all about that? Oh boy, SCO is FUBAR now.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Saturday, December 13 2003 @ 11:30 AM EST
What is a "Protective Order"?

[ Reply to This | # ]

Analysis of SCO's Evidence
Authored by: Anonymous on Saturday, December 13 2003 @ 08:25 PM EST
From transcripts of the recent hearing, you get the sense that SCO has no
evidence, but would like to go on a time-consuming fishing expedition to
manufacture some. In fact, why don't we take a moment to list and categorize
relevant passages.

Approach Category
=======================
(a) SCO needs IBM?s help to locate any infringements.
If SCO actually had any evidence, they wouldn?t need to go on a fishing
expedition.

(b) SCO strongly hints or directly admits to lack of evidence.

(c) Hearsay evidence

(d) SCO continues attempts to delay discovery

Relevant Passages
=======================
All quotes belong to Kevin McBride, unless noted otherwise.

[1] Category (d), p 6, line 13
?? we should have time to take that discovery??

[2] Category (a), p6, line 14
?? then we should revisit this and respond more fully to the interrogatories
submitted by IBM.?


[3] Category (a, b), p 6, line 24
?what we need to get our arms around collectively, on our side and on IBM's
side, is a clear definition of what source code is at issue, what source code is
potentially an infringement.?
This is one of the more obvious bonehead admissions.

[4] Category (a, b), p 14, line 25
?? this discovery needs to be framed in a way that allows us to identify just
first what is all this stuff that IBM put into Linux.?

[5] Category (b), p 16, line 7
??Your Honor, just so you know I'm not making this stuff up, or at least I am
not making it up new??
You get the sense that McBride is acknowledging that SCO has made up evidence in
the past (a la SCOForum); everyone knows it, and SCO is offering assurances this
isn?t the case this time.

[6] Category (b), p 16, line 18
?? IBM clearly did contribute a lot
of the Unix-related information into Linux. We just don't know what it is.?
Another bonehead admission.

[7] Category (c), p 18, line 12
?? We are happy and comfortable that Linux can become the successor, not just
for AIX but for all Unix operating systems.?
This is hardly any evidence at all, much less hearsay.

[8] Category (c), p 18, line 21
?? Mills acknowledged Linux lags behind Unix in scalability, SMP support,
failover capabilities and reliability but not for long. The pathway to get there
is an eight-lane highway, Mills said, noting that IBM's deep experience with
AIX and its 250-member open source development team will be applied to make the
Linux kernel as strong as that of Unix. The road to get there is well
understood.?

[9] Category (b), p 20, line 6
?Then we will have the capability of being able to compare what IBM's
contributions are lined up against our codes, and then we'll make a very clear
specification of where the violations are??

[10] Category (b), p 21, line 20
THE COURT: ??and otherwise this Court cannot determine, as the other party
cannot determine, what is relevant as to future discovery.? Those attending the
hearing indicate the following is delivered with emphasis: ?None of us know.?

[11] Category (a, b), p 22, line 16
?And what I believe is a very correct statement, Your Honor, is we won't know
what part is trade secrets, what part is contract, what part is copyright until
we've seen all of IBM's contributions.

[12] Category (d), p 29, line 22
?We're asking the Court to defer an answer until we have had enough
discovery??

[13] Category (a), p 46, line 19
?The confidential information we're talking about is stuff that Mr. Marriott's
client created but we didn't ever get to see.?

[14] Category (a, b), p 46, line 19
?And once we see AIX and all versions of it, then we will be in a position to be
able to say, Huh, you know what? This stuff you did in derivative works, you own
it, but you contributed to Linux improperly??

This analysis was originally posted to the SCOX Yahoo message board.
http://tinyurl.com/z4m6
Thx to stdsft0 for this and many other high quality contributions.

[ Reply to This | # ]

The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM
Authored by: Anonymous on Monday, December 15 2003 @ 01:22 PM EST
A summary of SCO's claims would be:

We licensed Code to you.
You took that code and added to it without showing us what you added.
Because those algorithms were included in the product derived from the licensed Code, the contract says that you are to treat them the same as the original Code.
You have added features to Linux that mirror your enhancements to our original Code.
We do not know if you added the code by copying verbatim from the derived work to Linux (copyright?) or simply included the algorithms (methods/trade secrets).
Either way, it is a breach of contract.
We wish to see the code to determine which was done.

Stated that way it sounds immensely more plausible than what has been reported.

[ Reply to This | # ]

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