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SCO's Memorandum in Support of its Motion to Compel
Monday, January 12 2004 @ 01:10 PM EST

Here is SCO's Memorandum in Support of its Motion to Compel. The big issue is that SCO wants all modifications ever made by IBM to the System V source code, all versions of AIX and Dynix, and IBM wants to provide only the base operating systems.

SCO says it needs all versions back to 1985 "in order to analyze the ways in which AIX has changed and the ways in which its structures, methods and information based on UNIX have evolved. The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM by improper contributions of such items to Linux."

We're back to square one: SCO's claim to "modifications, methods, and/or derivative works", a view not shared by IBM.

SCO also thinks that there is only a public record of donations to Linux that make it into the kernel, so it objects to IBM saying that the Linux contributions are publicly available. It wants IBM to hand over a list of all contributions IBM ever made that didn't make it into the kernel.

SCO also wants more details about the 7,000+ names IBM turned over. First, they feel there should be more names on the list, specifically and notably Sam Palmisano. IBM's objection was that without knowing what code they are talking about, they can hardly know how to answer with specificity who had access to the code. So we're back to the "which code?" problem. If SCO today provides that information, presumably IBM will then be in a position to fine-tune the list.

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

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

THE SCO GROUP, INC., a Delaware corporation,

Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation,

Defendant.

PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL

Case No. 2: 03-CV-0294DK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


Plaintiff The SCO Group, Inc. ("SCO"), submits this Memorandum in Support of its Motion to Compel. The motion to compel centers around four core categories of discovery that IBM has refused to produce or has produced inadequately: (1) source code for all of IBM's versions of UNIX (known as "AIX"), together with all notes and documentation for the software development methods used in the design and modification processes; (2) source code for all of Sequent's version of UNIX (known as "Dynix"), together with all notes and documentation for the software development methods used in the design and modification processes; (3) all contributions by IBM to Linux; and (4) proper identification of the approximate 7,200 potential witnesses identified by IBM. IBM's discovery responses address only part of the information requested. Complete discovery responses should be required of IBM without further delay.

IBM also has failed to respond adequately to several additional requests for production and interrogatories not identified in this motion to compel. Plaintiff is awaiting responsive documents IBM has agreed to provide and, if not provided, will meet and confer about deficient outstanding discovery requests before moving to compel with respect to those additional discovery requests.


STANDARD OF REVIEW

Relevancy is construed more broadly during discovery than at trial. Centurion Industries, Inc. v. Warren Steurer & Associates, 665 F.2d 323, 326 (10th Cir. 1981). During discovery, a request "should be considered relevant if there is ‘any possibility' that the information sought may be relevant to the claim or defense of any party," Sheldon v. Vermonty, 204 F.R.D. 679, 690-691 (D.Kan. 2001) (internal citations and quotations omitted), and should be allowed "unless it is clear that the information sought can have no possible bearing on the claim or defense of a party." Id. In other words, if a request for discovery appears relevant, "the party resisting discovery is obligated to show the requested discovery is outside the scope of Rule 26(b)(1) or is of such marginal relevance that the liberal disclosure required by Rule 26 is outweighed by the potential harm of disclosure." City of Wichita v. Aero Holdings, 192 F.R.D. 300, 302 (D.Kan. 2000).

Likewise, a party claiming that a request for discovery is unduly burdensome has the obligation "to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to provide the requested information" to enable the Court to make an appropriate determination. Airport Systems Int'l, Inc., v. Airsys ATM, Inc., 2001 WL 1718274 at *8 (D.Kan. May 16, 2001). In this regard, courts have observed that a business entity "may retain millions of documents in various locations, yet have the ability readily and economically to locate documents either about a specific topic of [sic] from which the absence of such information may be assumed." Cotracom Commodity Trading Co. v. Seaboard Corp., 1998 WL231135 (D.Kan. May 6, 1998).

Similarly, a party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity. Airport Systems Inti', Inc., v. Airsys ATM, Inc., 2001 WL 1718274 at *9 (D.Kan. May 16, 2001). It may do so, for example, by describing the different meanings it perceives the term or terms to have, and how the alternative meanings may have caused its confusion. Id. It cannot simply assert that responding to the document request is unduly burdensome. Id. at *8.


ANALYSIS OF DEFICIENT RESPONSES

The following responses by IBM are deficient:


Request No. 2

All versions or iterations of AIX source code, modifications, methods and/or derivative works from May 1999 to the present, including but not limited to version 4.3 and above.

IBM's Response:

In addition to the foregoing objections, IBM objects specifically to this Request on the grounds that it is overbroad and unduly burdensome. IBM also objects to this Request on the grounds that it is vague, ambiguous, and unintelligible with respect to the phrase "modifications, methods, and/or derivative works". Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM will produce a copy of the source code for AIX version 4.3.3 and AIX version 5.2 [emphasis added].

In addition to this formal discovery response, IBM delivered a letter to Plaintiff's counsel on October 10, 2003, attempting to further qualify its formal discovery responses. To provide a complete record and to avoid potential claims of waiver by IBM related to the subject matter of each discovery request, Plaintiff has included the relevant portions of that letter in this motion to compel. With respect to Request No. 2, IBM's October 10, 2003 letter states as follows:

IBM's Oct. 10, 2003 letter:

My e-mail to you of October 8 addressed the open issues regarding these requests. As detailed in that note, IBM will commence production of source code for the AIX and Dynix base operating systems once the process for notification of third parties (as specified in Paragraph 10 of the Stipulated Protective Order) is exhausted. Response to Requests Nos. 2 and 3.

Deficiency:

IBM has created numerous different versions of AIX during the requested time frame, but it offers to produce only the final "base operating systems" for versions 4.3.3 and 5.2. This is inadequate. IBM licensed UNIX System V from AT&T in 1985. Pursuant to license terms, it was entitled to create derivative works and modifications based on UNIX System V technology, "provided that the resulting materials are treated as part of the original [UNIX System V] Software Product." [Software Agreement §2.01.] It is undisputed that IBM created derivative works and modifications of UNIX System V known in the industry as "AIX." Plaintiff contends that IBM failed to treat AIX as required under the Software Agreement by, among other things, contributing source code and confidential methods for developing UNIX/AIX to Linux. This is a central issue in the case. See, e.g., ¶¶ 91-97, 110-115 of Plaintiffs Amended Complaint. Plaintiff is entitled to the production of all modifications and versions of AIX created over the years in order to analyze the ways in which AIX has changed and the ways in which its structures, methods and information based on UNIX have evolved. The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM by improper contributions of such items to Linux. IBM is apparently trying to avoid this critical discovery by purporting to produce only the "base operating systems" of AIX versions 4.3.3 and 5.2.

IBM further claims, in its October 10, 2003 letter, that a "third-party notification process" must be exhausted before it will turn over the relevant source code. It was clear to both parties, from the beginning of this case, that it would be necessary to run various source code comparisons, including AIX and Dynix code. These are lengthy and detailed processes, and need to begin as soon as possible. In IBM's response filed over two and one-half months ago on August 13, 2003, it referenced the need to obtain third party consents. On September 15, 2003, after repeated inquires by SCO, IBM again mentioned the need for "a substantial number of third-party notifications prior to production." On October 1, 2003, IBM represented that "[w]e're working on that process [of third-party notifications] now." Further prodding by SCO has revealed that IBM did not begin the process of notifying third parties until some time during the week of October 21. As a result, IBM now claims that it cannot turn over the code it promised in August until Thanksgiving. The Court should order IBM to identify and produce all versions and modifications of AIX from May 1999 to the present date, including development and design methods of AIX and notes relating thereto, without further delay.

Request No. 3

All versions or iterations of Sequent Dynix source code, derivative works, modifications, and/or methods from January 1999 to the present.

IBM's Response:

In addition to the foregoing objections, IBM objects specifically to this Request on the grounds that it is overbroad and unduly burdensome. IBM also objects to this Request on the grounds that it is vague, ambiguous, and unintelligible with respect to the phrase "modifications, methods, and/or derivative works". Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM will produce a copy of the source code for the base operating system of Dynix Version 4.1.10, Dynix Version 4.5.3, and Dynix Version 4.6.1 [emphasis added].

IBM's Oct. 10, 2003 letter:

My e-mail to you of October 8 addressed the open issues regarding these requests. As detailed in that note, IBM will commence production of source code for the AIX and Dynix base operating systems once the process for notification of third parties (as specified in Paragraph 10 of the Stipulated Protective Order) is exhausted. Response to Requests Nos. 2 and 3.

Deficiency:

The same deficiencies found in IBM's response to Request No. 2 also apply here. "Dynix" is a software operating system developed by Sequent Computer Company ("Sequent") that is also a modification and derivative work based on UNIX System V. Sequent licensed UNIX System V technology from AT&T in 1986. IBM has since merged with Sequent, and became obligated under the Sequent Software Agreement with respect to its use and treatment of Dynix. Pursuant to the licensing provisions of the Software Agreement, Sequent also was entitled to make modifications and derivative works based on UNIX System V, again "provided that the resulting materials are treated as part of the original [UNIX System VJ Software Product" under the Software Agreement. Plaintiff contends that IBM failed to treat Dynix as required under the Software Agreement by, among other things, contributing source code and confidential methods for developing UNIX / Dynix to Linux. This is a central issue in the case. See, e.g., ¶¶ 139, 141-144 of Plaintiffs Amended Complaint. Plaintiff is entitled to production of all modifications and versions of Dynix created over the years to analyze the ways in which Dynix has changed and the ways in which its structures, methods and information based on UNIX have evolved. The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM. IBM is apparently trying to avoid this critical discovery by purporting to produce only the "base operating systems" of Dynix versions 4.1.10, 4.5.3 and 4.6.1. The Court should order IBM to identify and produce all versions and modifications of Dynix from January 1999 to the present date, including development and design methods of Dynix and notes relating thereto, without further delay.

Request No. 11

All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods, and modifications to Open Source Development Lab, Linus Torvalds, Red Hat or any other entity.

Response:

In addition to the foregoing general objections, IBM objects specifically to this Request on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. The Request seeks "contributions" unrelated to UNIX System V source code. IBM also objects to this Request on the grounds that it is vague and ambiguous in its use of the phrase "any other entity," and it is vague, ambiguous, and unintelligible in its use of the terms "derivative works, methods, and modifications." IBM further objects to this Request on the grounds and to the extent that open-source contributions made by IBM are publicly available and as accessible to plaintiff as to IBM. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM, after a search of reasonable scope, will produce non-privileged documents, if any, responsive to this Request relating to UNIX System V source code [emphasis added].

IBM's Oct. 10, 2003 letter:

Your request, even as narrowed, remains overly broad and unduly burdensome. Until SCO specifies the wrongful contributions IBM has allegedly made to Linux in violation of SCO's alleged confidentiality rights, it is very difficult to make a reasonable assessment as to the proper scope of discovery in this case. In the absence of that clarification, we have nevertheless attempted to conduct a reasonable search for documents that relate to IBM's open-source contributions to Linux. The vast majority of those contributions are made through the LTC; the OSSC is the corporate clearinghouse for those contributions. Our searches to date have thus included individuals on both of those groups, as well other potential sources of documents relating to IBM's contributions to Linux that have come to our attention. We are not limiting our searches to any particular geographic area -- indeed, they have already included individuals residing in Beaverton, OR, Austin, TX, and a variety of other IBM locations. Our efforts to identify and collect documents responsive to this request are continuing, and we believe will be facilitated by adequate answers to our interrogatories. Response to Request No. 11.

Deficiency:

This response is deficient for two reasons. First, it is not proper to withhold production of IBM's contributions to Linux on the grounds that such contributions are publicly available because only contributions actually incorporated into Linux are publicly available. All contributions made or offered by IBM to Linux, some of which are publicly available and some of which are not, need to be identified in order to properly trace IBM's Linux-related activities and the ways in which it has infringed and/or breached its obligations to Plaintiff through the Linux development process.

The second deficiency in IBM's response is far more problematic. IBM states that it will produce UNIX System V source code contributed by IBM to Linux. This is not responsive to the request and is unduly restrictive with respect to the issues in the case. IBM is obligated under its contract to treat both AIX and Dynix as part of the original System V Software Product. Contributions to the public by IBM of AIX and Dynix source code and methods related to development thereof are violations of contract and/or infringing conduct. IBM is not legally entitled to limit the scope of this case by producing only documents that match its own theories or defense of the case. Consistent with the allegations made against IBM, it should be required to identify and produce all of its contributions and development work in Linux.

Interrogatory No. 2

List the names and addresses of all persons who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues of this lawsuit; and specify the subject matter about which the witness has knowledge.

IBM's Response:

In addition to the foregoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and does not identify with reasonable particularity the "issues of this lawsuit." Based upon the general allegations of plaintiffs complaint, many thousands of current and former employees of plaintiff, IBM, AT&T, USL, Novell, and The Santa Cruz Operation could have knowledge about this lawsuit. Until plaintiff identifies with specificity the code or other alleged trade secrets or confidential information which it claims IBM misappropriated, IBM is unable to determine fully which persons have knowledge concerning "the issues of this lawsuit". Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides, as Attachment A, the names of current and former IBM officers and employees who may have knowledge concerning certain issues in this lawsuit, and specifies the subject matter about which each person may have knowledge . A current business address is provided for current TBM officers and employees, and the last known home address, if available, is provided for former IBM employees. The names of current IBM officers and employees are underlined, and any communications with those persons should be made only through IBM counsel. IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories [emphasis added].

Deficiency:

This response is inadequate. The interrogatory asks for the identity of all persons with knowledge, yet Attachment A lists only IBM employees and former employees. This effort to limit the scope of the question is contrary to IBM's original answer, particularly since the parties agreed to waive the Rule 26 disclosures of such information because each side had asked for that information in discovery. In its original answer, IBM stated, among other things, that it "will identify persons who are known by IBM to have discoverable information. . . ."1 The parties then had an extensive discussion about this interrogatory and other items, which was followed by various letters and e-mails. In that correspondence, IBM discussed that it had "undertaken to identify IBM officers and employees believed to have knowledge about the issues in this lawsuit and expect to amend our answer to this interrogatory as soon as practicable."2 It was thus believed that these persons at IBM would be contacted and a responsive answer submitted. In a follow-up letter, SCO mentioned that it was expecting the identity of each of the officers and directors that would have knowledge.3 At that point, there had been a question of whether IBM's answers would include directors, which IBM clarified that it would. From that point, however, IBM has taken the position that it need only identify current and former employees of IBM with knowledge of the case. That view is incorrect. Rather, just as SCO did when it provided its supplemental answer to a similar question, IBM needs to supplement Attachment A to include non-IBM persons.

An additional defect is that Attachment A omits persons obviously known by IBM to have knowledge of the issues of this case, for example, IBM's CEO, Sam Palmisano. Mr. Palmisano is publicly identified as one of IBM's key Linux advocates. A serious question exists as to which other IBM persons, besides Mr. Palmisano, have been improperly omitted from the designation in Attachment A4.

Interrogatory No. 4

Identify all persons who have or had access to UNIX source code, AIX source code and Dynix source code, including derivative works, modifications, and methods. For each such person, set forth precisely the materials to which he or she had access.

IBM's Response:

In addition to the foregoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. IBM also objects to this Interrogatory on the grounds that the phrase "derivative works, modifications, and/or methods," as used in this Interrogatory, is vague, ambiguous, and unintelligible. IBM further objects to this Interrogatory as overbroad to the extent it seeks the identification of "all" persons who have had access to the subject source code and information. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides the following, based upon a reasonable search of IBM's records: a list of persons (including current and former IBM employees, IBM contractors and employees of IBM vendors) who may have or may have had access either to AIX source code or to AIX change and fix records ( Attachment B ); a list of persons at IBM who may have current access to Dynix code ( Attachment C ); and a list of persons (current and former IBM employees) who may have or may have had access to Unix System V source code ( Attachment D ). IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories [emphasis added].

Deficiency:

IBM's response is inadequate because it fails to provide information sufficient to evaluate the list of names it provided. Attachment B is an alphabetical list of over seven thousand names, without more. IBM needs to provide the same level of detail, including contact information, about the persons identified in Attachment B as is contained in Attachment A to the extent such information is in IBM's possession, custody or control. Without such information, Plaintiff cannot meaningfully evaluate the identities of the approximately 7,000 persons listed in Attachment B. Attachment D suffers from the same deficiency as Attachment B -- that is, the same level of detail provided in Attachment A should also be provided in Attachment D, to the extent such information is in IBM's possession or control. Attachment C suffers from the same deficiency as Attachments B and D, but also has an additional deficiency in that it is limited to current IBM employees. IBM merged with Sequent Computer Company in or about 1999-2000. Therefore, it has in its possession, custody or control the business records of Sequent and should be able to fully respond to this interrogatory. Plaintiff is entitled to discovery that discloses the identity of all current and former IBM / Sequent employees who had access to Dynix.

Interrogatory No. 5

Identify all IBM or Sequent personnel that work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux, specifying for each person their precise contributions to each.

IBM's Response:

In addition to the forgoing general objections, IBM objects specifically to this Interrogatory on the grounds that it is overbroad, unduly burdensome, and seeks information that is irrelevant and not reasonably calculated to lead to admissible evidence. IBM also objects to this Interrogatory on the grounds that the phrase "derivative works, modifications, and/or methods," as used in this Interrogatory, is vague, ambiguous, and unintelligible. IBM further objects to this Interrogatory as overbroad to the extent it seeks the identification of "all" persons who have worked on developing the subject source code and information. Subject to, as limited by, and without waiving the foregoing general and specific objections, IBM provides the following, based upon a reasonable search of IBM records: a list of persons (including current and former IBM employees, IBM contractors and employees of IBM vendors) who may have or may have had access either to AIX source code or to AIX change and fix records ( Attachment B ); a list of persons at IBM who may have current access to Dynix code ( Attachment C ); and a list of persons (including current and former IBM employees) who may have made contributions to Linux ( Attachment E ). IBM's First Supplemental Responses and Objections to SCO's First Set of Interrogatories.

Deficiency:

This interrogatory did not request IBM to list persons who had access to source code, as did Interrogatory No. 4, but rather those who "work or worked on developing source code, derivative works, modifications or methods for AIX, Dynix and Linux. " The lists may overlap to the extent, for example, that someone who is developing code for AIX would necessarily have access to some AIX source code, but it does not necessarily follow that all persons who had access to AIX source code actually worked on its development. Since the lists are, by definition, not coextensive, Attachments B and C are deficient.

Attachment B is a list of approximately seven thousand names, in alphabetical order. IBM describes this list as containing the names of persons "who may or may have had access" to AIX source code. It says nothing about the files to which they contributed, nor does it provide any contact information. Attachment C is a list of fifty-one names, in alphabetical order. IBM describes this list as containing the names of persons "who may have current access to Dynix code." It says nothing about the files to which they contributed, nor does it provide any contact information. Attachment E, although closer to the mark, is also deficient. It lists the names of approximately two hundred and sixty persons, also in alphabetical order, "who may have made contributions to Linux." (emphasis added). The list does not specify to which files these persons contributed, if any, nor does it provide any contact information.

The referenced attachments provide no other information than the names themselves. They are not responsive to the most important part of the interrogatory, and as such they are nearly useless as a starting point for further discovery.

CONCLUSION

For the foregoing reasons, SCO respectfully requests that IBM fully and completely respond to the identified discovery requests.


DATED this 4th day of November, 2003.

Respectfully submitted,
By: [signature]
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch

Mark F. James
BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise
Counsel for Plaintiff/Counterclaim defendant


1. Initial answers attached as Exhibit ________.

2. See page 9 of Letter dated September 15, 2003 attached as Exhibit ________.

3. See page 6 of Letter dated September 22, 2003 attached as Exhibit ________.

4. It does not appear that IBM's supplemental answer includes any directors of IBM, the very subject of the repeated calls and correspondence.


  


SCO's Memorandum in Support of its Motion to Compel | 187 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO's Memorandum in Support of its Motion to Compel
Authored by: sam on Monday, January 12 2004 @ 02:22 PM EST
The Dec. 5 hearing was a big win for IBM not only because they won their motions
to compel, but also because there was no need to suspend discovery from SCO. The
judge did that without even being asked. Why? She's got serious doubts about
the case based on the evidence she's seen thus far. She went so far as to tell
them in court that she doesn't have any idea what their claims are about.
"None of us know!" Too bad the transcript couldn't describe her
tone of voice on that one. It wasn't nice. I trust and hope that IBM will
remain on the offensive and not go into the next hearing to only argue about the
SCO motion. They are good attorneys and I expect them to press the advantage
they clearly have and keep SCO off balance.

[ Reply to This | # ]

Stock Price
Authored by: Anonymous on Monday, January 12 2004 @ 02:32 PM EST
SCO's stock price has fallen sharply so far today. Is that in response to
anything in particular?

[ Reply to This | # ]

SCO's Memorandum in Support of its Motion to Compel
Authored by: valdis on Monday, January 12 2004 @ 02:34 PM EST
The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM by improper contributions of such items to Linux.

I hope that the judge grants IBM a restriction to this, to only require IBM to turn over those portions of source code that SCO can up front show a likelyhood of problems.

Yes, SCO will whine "But then we can't find the OTHER infringing code". However, given they haven't actually shown any proof of "there might be infringing code here", I think IBM is correct in trying to prevent a fishing expedition.

[ Reply to This | # ]

Confused about a paragraph
Authored by: mikebmw on Monday, January 12 2004 @ 02:42 PM EST
The following line from above dosn't seem to make sense.

"SCO also thinks that there is only a public record of donations to Linux
that make it into the kernel, so it objects to IBM saying that the Linux
contributions are publicly available."

Seems like it contridicts itself.

[ Reply to This | # ]

SCO's Memorandum in Support of its Motion to Compel
Authored by: shaun on Monday, January 12 2004 @ 02:47 PM EST
SCO owns all derivitives of UNIX including AIX, according to SCO. IBM says SCO
needs to identify what is infringing and how and when it was introduced to Linux
and who added it. IBM is asking for specifics and SCO is asking for a general
access so that they can further implicate IBM in a lawsuit.

Excuse me but I can't not fathom any judge forcing IBM to comply with such a
discovery request. SCO has not been specific, nor have they provided any
evidence that supports their claim in any fashion. Anything they have thus far
made public has been laughed at heartily.

I hope if this goes to trial it will be on Court TV. I'll watch and tape it
LOL.

--Shaun

[ Reply to This | # ]

OT: SCO hides Linux usage?
Authored by: Anonymous on Monday, January 12 2004 @ 02:48 PM EST
According to http://uptime.netcraft.com/up/graph?site=ftp.sco.com, SCO is
running its FTP site using SCO Unix. However, I FTP'ed the site to see for
sure:


>ftp ftp.sco.com
Connected to ftp.sco.com.
220 ftp.caldera.com Ready.
User (ftp.sco.com:(none)): anonymous
331 Anonymous login ok, send your complete email address as your password.
Password:
230- Welcome to SCO's FTP site!

This site hosts UNIX software patches, device drivers and supplements
from SCO.

To access Skunkware and Supplemental Open Source Packages, please
connect to ftp2.caldera.com.

230 Anonymous access granted, restrictions apply.
ftp> cd bin
250 CWD command successful.
ftp> ls
200 PORT command successful
150 Opening ASCII mode data connection for file list
zcat
gzip
ls
tar
226 Transfer complete.
ftp: 21 bytes received in 0.00Seconds 21000.00Kbytes/sec.
ftp> get gzip
200 PORT command successful
150 Opening ASCII mode data connection for gzip (142512 bytes)
226 Transfer complete.
ftp: 143032 bytes received in 1.08Seconds 132.68Kbytes/sec.
ftp> quit
221 Goodbye

Examination of the gzip executable with the strings command reveals that it
contains the string:

@(#) The Linux C library 5.4.22

As well as the text of the standard "NO WARRANTY" header found in
GPL source files.

So, apparently their FTP site is running Linux, but they are hiding that fact
with deceptive http headers (or whatever it is that netcraft uses).

[ Reply to This | # ]

SCO's Memorandum in Support of its Motion to Compel
Authored by: Anonymous on Monday, January 12 2004 @ 02:51 PM EST
SCO seems to be saying "We are sure that there is something, and as soon
as we find it, we are going to show that it found its way into Linux. However,
we can not point to any specifics, so you provide everything you have."

So far, it seems that SCO is playing the same tune to the Court just another
time.

[ Reply to This | # ]

SCO's Memorandum in Support of its Motion to Compel
Authored by: Anonymous on Monday, January 12 2004 @ 03:00 PM EST
Let's assume for the moment that SCO is nothing but a puppet right now for
Microsoft. This is a fairly easy to make assumption, given what SCO is doing,
and whom it benefits the most, regardless of outcome.

Perhaps Microsoft is just using SCO to get access to as much of IBM's source
code as it can?

I think similar things have happened in the past. (e.g. Microsoft taking a peek
at Control Data's X.500 product, and then coming out with ActiveDirectory.)
They don't innovate -- they just "borrow."


[ Reply to This | # ]

Still no leaks from within SCO?
Authored by: geoff lane on Monday, January 12 2004 @ 03:06 PM EST
I continue to be surprised that there has been zero leaks from within SCO. If
only government had such loyal employees :-)

I'm equally surprised that SCO are apparently threatening Unix source
licensees; the one group of companies that may just be sympathetic to SCO as
they too may be suffering from the success of Linux.

[ Reply to This | # ]

Still ignoring the amendment
Authored by: nicke on Monday, January 12 2004 @ 03:08 PM EST
They are still claiming that all enhancement done by IBM are to be treated as part of the original Sys V codebase.

Pursuant to license terms, it was entitled to create derivative works and modifications based on UNIX System V technology, "provided that the resulting materials are treated as part of the original [UNIX System V] Software Product." [Software Agreement §2.01.]

But the amendment ( found as exhibit C on SCO's website ) clearly states that only the parts of such works containing actual Sys V code ( modifications ) are to be treated as parts of the Sys V Software Product. The other derviative works ( addons ) belongs to IBM and may use concepts and methods from UNIX and may be marketed by IBM. I can only iterpret this as saying thet the methods and concepts are not secret, but the actual Sys V code is.

There were restricions that developers not refer to the physical documents, but they were lifted in a later agreement.

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SCO's Memorandum in Support of its Motion to Compel
Authored by: valdis on Monday, January 12 2004 @ 03:39 PM EST
First, it is not proper to withhold production of IBM's contributions to Linux on the grounds that such contributions are publicly available because only contributions actually incorporated into Linux are publicly available.

Surely they aren't saying this to set up a "even the code that's not in there is infringing" claim? Naah. That would require a rock of crack the size of Ayers Rock.

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Thorazine
Authored by: the_flatlander on Monday, January 12 2004 @ 03:53 PM EST
Time was, when someone exhibited severe paranoia, or any psychotic behavior the
good doctors in the white coats would just give them a bit o'thorazine and the
voices would stop, for a while. Nowadays they have even better drugs, I think,
but what would you use to treat an organization that is this paranoid?

They believe that some contributions are *secret*? They think the code could be
snuck in there and no one would see it. Like maybe the source rpms, (or
whatever, if you aren't Red Hat-centric), don't really contain all the code?
Or maybe trying to contribute something that gets rejected is still actionable,
even though there is no actual distribution of infringing code?

Or maybe IBM, just for laughs, showed all that cutting edge Sys V code around
the the kernel developers so they could use it to figure out haow to add to
Linux all the things that Sys V *never* did. (For example: JFS, NUMA, SMP, and
RCU.)

I suppose the judge is allowed to look at SCO's filing and say
"no." And while that might stop some of the maddness, I fear SCO's
underlying illness will remain untreated.

TFL

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Name Dropping: Sam Palmisano
Authored by: iceworm on Monday, January 12 2004 @ 04:04 PM EST
Given SCO's history of grandstanding through the use of big
name <fill in the blank>. To wit:
1. IBM is the biggest name in computers world wide. Why waste
time suing any smaller company?
2. David Boies is (apparently) one of the bigger names in recent
history relating to computer operating systems. Why take a
chance on a law firm with greater competence in the area of
interest when this action is all about _NAME_ recognition
(namely, SCO's).
3. The supporting players are well known: HP, Sun, Microsoft,
etc.
4. Then there are the media and (so called) research and
analysis organizations. All are well known and too numerous to
mention here.

The point: pump up that stock! It has already happened. The
insiders have made enough to secure their retirement. That is
not all.

The long term need for all the players is to ensure continued
viability in the marketplace (including IBM). They see the GPL
in conflict with their age-old business model. HP's CEO, Carly
Fiorina, came out quite strongly for DRM at CES 2004. IBM is
still the leader in obtaining new patents (I don't know the
percentage of the new patents in 2003 that applied to software
as opposed to hardware). Microsoft is really, _REALLY_,
worried about their continued viability in the face of FOSS
(especially GPL'd software). The media are worried at the loss
of advertising revenue. The research and analysis organizations
are worried at the loss of contracts (who needs them when the
whole world, well at least the community that uses "your"
software, is sending back bug reports).

Well, my farthing's enough. chief iceworm

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Big news from Novell?
Authored by: Anonymous on Monday, January 12 2004 @ 04:05 PM EST
Hi all, Long time reader, first time poster - haven't set up an account yet.

Looks like some big news might be on the way from Novell:
Novell to Offer Linux Indemnification Program

Some excerpts:

Novell is expected to announce its Linux Indemnification Program late on Monday, sources close to the company told eWEEK.

Novell executives are also on Monday expected to release additional information on the contractual and intellectual property rights it holds because of its former ownership of Unix and UnixWare.

The company is expected to announce that it has the rights to license Unix technology pursuant to a Technology License Agreement between SCO and Novell, including Novell's right to authorize its customers to use that Unix technology in their internal business operations.

It also claims to have the rights to take action on behalf of SCO under legacy Unix SVRX licenses pursuant to the Asset Purchase Agreement between SCO and Novell.

Can't wait to see this!

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Kernel Submissions...
Authored by: Anonymous on Monday, January 12 2004 @ 04:06 PM EST
Rats! SCO know that kernel submissions are being made surreptitiously to Linus
by men in trench coats and sunglasses, carrying code in brown paper bags.

I knew they would stumble on this sooner or later....*sigh*

I guess the red Fedora was a bad idea....

And I thought it was such a good way to bypass the lkml!

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OT: Formatting issue
Authored by: red floyd on Monday, January 12 2004 @ 04:07 PM EST
OT, but...

Is anyone else seeing a large set of vertical bars in the middle of this page
(and only this page)? It's forcing all the text off to the right.

Happens in both IE5.5SP1 and Mozilla 1.5.


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

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SCO's Memorandum in Support of its Motion to Compel
Authored by: Anonymous on Monday, January 12 2004 @ 04:10 PM EST
Anyone know their way around the SCO site?
According to Darl: "We invite interested parties to view some of this evidence for themselves at www.sco.com/scosource.

.. I can't seem to find any evidence.. Can you? :-)

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News flash!
Authored by: Anonymous on Monday, January 12 2004 @ 05:05 PM EST
UTAH (Rhoiders) - Lindon, Utah based The SCO Group (SCOX) has recently announced
their memorandum of announcement of intent to announce a lawsuit against a
prominent Linux customer. Linux, the free operating system which has been
attributed to causing the tech driven "dot com" market boom of the
late 90s, its collapse in the 00s, and its revival again over the last six
months, is apparently not even an operating system, but rather only a kernel
(according to a release from Free Software Foundation arch-druid Richard M
Stallman), or possibly even a 9 year old boy (according to a conflicting
statement from IBM Corp's marketing division).

SCO Group's announcement of their memorandum of announcement of intent to
announce a lawsuit has outraged prominent vendors of Linux-based systems, who
have countered with the formation of the Linux Legal Defense Fund, a charitable
trust to provide financial assistance to Linux end users. The list of vendors
who have sponsored the Open Source Development Labs (OSDL), a non-profit group
dedicated to the creation, advancement and distribution of free software, is
suspiciously comprised of mostly the same members of The Business Software
Alliance (BSA), a non-profit group with authority to prosecute individuals who
distribute or use software for free.

In contrast to Microsoft's operating systems - which many complain require
frequent updates and patches - Linux is applauded for being robust, stable, and
rarely requiring upgrades. Linus Torvalds, who released Linux 2.6.1 this past
Friday, was hurriedly preparing kernel 2.6.2 for release sometime this week,
with version 2.6.3 due the following Monday, and was therefore unavailable for
comment.

As the architect of Linux and an employee of OSDL, Linus did however relay
through an OSDL spokesperson his assertion that his 'baby' - while about 10
years old, - was certainly not a boy, nor did it resemble the cute and popular
child actor Haley Joel Osment.

In a related story, SCO has also revealed that the company will be changing
it's name to Boies, Schiller & Flexner Group.

"In August 2002, while operating as Caldera, we recognized that our most
profitable brand was SCO Unix," said SCO Group CEO Darl McBride. "We
chose to change the name at that time to The SCO Group to leverage the
association of the company name with the core product. Evidenced by the
spectacular success of this move, we have similarly chosen to change again to
Boies, Schiller & Flexner Group - a limited partnership which we acquired in
October 2003 - to reflect the current direction of our company, and our
revolutionary business model as a publicly traded lawsuit."

The SCO Group plans to adopt "BSFX" as its new trading symbol.

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Novell says "Bring it on"
Authored by: shoden on Monday, January 12 2004 @ 05:11 PM EST
It looks like Novell is saying "Bring it on" with their
Idemnification of Linux.

They are the one distributor that can idemnify without fear as they feel they
own SysV. This is basically telling Darl that we know what's in SysV and
what's in Linux and we aren't worried.

---
S.K.

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

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SCO's Memorandum in Support of its Motion to Compel
Authored by: dkpatrick on Monday, January 12 2004 @ 05:52 PM EST
Take a look at this current news article:

http://www.internetnews.com/dev-news/article.php/3298271

SCO says:

"SCO (Quote, Chart) officials are planning to hand over specific Linux
code they contend was released to the open source community by IBM (Quote,
Chart), allegedly in violation of SCO's copyright.

Blake Stowell, SCO spokesperson, confirmed the move, telling internetnews.com he
expects the evidence will be enough to convince the judge overseeing the
contract dispute between SCO and IBM (Quote, Chart) to demand that IBM also
produce other UNIX derivative code under dispute in the case.

Stowell also said the code that SCO is handing over is protected, so only IBM
would be able to see the code in question."

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Sauce for gander is unpalatable?
Authored by: Tsu Dho Nimh on Monday, January 12 2004 @ 06:19 PM EST
"Attachment E, although closer to the mark, is also deficient. It lists
the names of approximately two hundred and sixty persons, also in alphabetical
order, "who may have made contributions to Linux." (emphasis added).
The list does not specify to which files these persons contributed, if any, nor
does it provide any contact information."

Hmmmmmmmm ... coming from the company who handed over a huge list of files that
"may or may not contain" the info IBM requested, this is a hilarious
objection. They want a degree of specificity from IBM that they are unwilling to
give to IBM.


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SCO's Memorandum in Support of its Motion to Compel
Authored by: Anonymous on Monday, January 12 2004 @ 07:06 PM EST
Has Palmisano ever seen a line of code in his life? I'd have guessed *not*.

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Can anybody explain this to me?
Authored by: OK on Monday, January 12 2004 @ 07:22 PM EST
The evidence adduced from this discovery is likely to identify evidence of infringement and/or contract violations by IBM by improper contributions of such items to Linux.

I don't get it. They say to a judge in clear words that they don't have the evidence but they want to use discovery process in hope to find the evidence? The evidence they needed in the first place BEFORE they filed this lawsuit? Or do I read it wrong?

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Novell Indemnification: it's just your money back plus 25%
Authored by: Anonymous on Monday, January 12 2004 @ 08:32 PM EST

From www.infowo rld.com/article/04/01/12/HNindemnify_1.html:

The indemnification program will go into effect on Tuesday, the same day that Novell is expected to complete its $210 million acquisition of the German software company, Novell spokesman Bruce Lowry confirmed on Monday.
The program will be available free of charge to customers who purchase SuSE Linux Enterprise 8, along with Novell's "upgrade protection" software maintenance plan and a support contract, from either Novell or a qualified Novell channel partner, said Lowry.
Customers will be protected for up to 1.25 times the cost of their support contract and licensing fees with Novell, or $1.5 million, "whichever figure is lower," Lowry said.
So this is only 25% better than the your-money-back indemnity plans that people have been ridiculing. Plus, Novell is shamelessly using the fear of not being indemnified to try to get you to buy more product. So this is not really good news. (Fortunately, there are likely to be a few other developments in the next few weeks that really are good news.)

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Interrogatory 2
Authored by: rand on Monday, January 12 2004 @ 08:47 PM EST
"List the names and addresses of all persons who are believed or known by
you, your agents, or your attorneys to have any knowledge concerning any of the
issues of this lawsuit; and specify the subject matter about which the witness
has knowledge. "

Well, that includes half of Slashdot, most -- not all -- of the Yahoo/SCOX
message board, a few journalists,...oh, yeah, all the members of Groklaw.

I guess we can all expect suponeas pretty soon.


---
The Wright brothers were not the first to fly an aircraft...they were the first
to LAND an aircraft. (IANAL and whatever)

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Novell Indemnification
Authored by: Anonymous on Monday, January 12 2004 @ 08:48 PM EST
Story on Slashdot:

http://slashdot.org/articles/04/01/13/0138206.shtml?tid=123&tid=126&tid=
163&tid=187&tid=88&tid=99

Story on eWeek:

http://www.eweek.com/article2/0,4149,1434404,00.asp

[ Reply to This | # ]

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