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SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Tuesday, January 13 2004 @ 03:53 PM EST

It looks like SCO did not fully comply with the court's order by the deadline after all.

SCO has posted a Notice of Compliance as a PDF on its web site, which states that they have filed "Supplemental Responses".
[ Update: SCO has now removed it or moved it. It was at http://www.sco.com/ibmlawsuit/noticeofcompliance.pdf and we've replaced it with the court filing.] The notice claims they have fully complied with the court's order with respect to answering Interrogatories 1-9, 12 and 13, but they reserve the right to supplement after they get more code from IBM.

However, they say they have *not* produced all the documents requested by IBM, specifically files of certain directors and officers. Because of the holiday, they didn't have time to fully review them yet. That is another way of saying they have not fully complied.

If you look at the order, answers to Interrogatories 1-9, 12 and 13 were not all that they were required to produce. Here is the rest of the list:

3. IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Productions of Documents and SCO is to produce all requested documents.

4. To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided.

5. To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable.

6. If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance.

SCO is required to provide such answers and documents within thirty days from the date of this order.

All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the foregoing issues January 23, 2004 at 10:00 a.m.

Did they comply with item number 4? I don't know. How the judge will like the Christmas excuse is hard to guess. She might note that they could have asked for a later date at the December 5 hearing, and if they knew they would be closed for Christmas and would have trouble meeting the schedule, they could have said that to her at the hearing, and that Christmas is a known holiday they obviously could expect to occur between December 5th and January 12. Or she might let it pass. It would seem to depend on what the affidavit says:
THE COURT: 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.
Reading the transcript, the judge made it clear that SCO can't go forward with its discovery, including its Motion to Compel, until they are in full compliance. If they don't produce the rest by the hearing date on the 23rd, I'd guess they will have a major problem.

IBM is not likely to do nothing about this, though, I'm guessing, depending on what date SCO is now promising to provide the rest and how much is missing.

They say in the notice that the supplemental responses add up to more than 60 pages, and they add the phrase that they've answered fully "based on the information in SCO's possession". Hmm. It makes reference to a declaration by Ryan Tibbits, but that isn't included in the PDF. [ Update: Here it is.] This declaration is where they explain what they didn't produce and when they expect to have it.

It's hard to believe they would miss the deadline. But it appears they have. Funny, I could have sworn they were telling reporters they would be providing everything. Here is their press release about this notice, which will be filed with the SEC today.

Notice how the press release characterizes what they produced:

The SCO Group Inc. (Nasdaq: SCOX) today announced that it has responded to a December 12, 2003 court order in connection with its current legal action against IBM, filed in the United States District Court for the District of Utah. As expected, SCO yesterday answered certain interrogatories and produced evidence to IBM to support its claims. The interrogatories and evidence were produced on January 12, 2004 under the protective order previously entered in the case. In addition, SCO filed with the Court on January 12, 2004 the "Notice of Compliance with Court Order." The Notice will be available on Form 8-K, which will be filed later today with the Securities and Exchange Commission.
Does that sound like the whole story to you? More will be available with time, but here is what they have told the judge in this notice:

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

Plaintiff/Counterclaim Defendant SCO hereby files its Notice of Compliance with this Court's Order entered on December 12, 2003, and states:

1. SCO has responded fully and in detail to Interrogatories 1-9, 12 and 13 of IBM's First Set of Interrogatories. (See SCO's Supplemental Response to Defendant's First and Second Set of Interrogatories dated January 12, 2004) (hereinafter "Supplemental Responses."). These Supplemental Responses, which exceed 60 pages, fully respond to the interrogatories based on the information in SCO's possession. Upon receiving complete discovery from IBM, including all versions of AIX and Dynix/ptx, there undoubtedly will be further evidence of IBM's contractual breaches and other violations of law, as detailed in the attached Declaration of Ryan Tibbits. Accordingly, SCO reserves the right to further supplement or amend its answers as discovery or further investigation may reveal.

2. SCO has also produced all non-privileged responsive documents requested by IBM. The only exception to such production is the files of certain officers and directors for whom SCO could not obtain the requested materials during the holidays with sufficient time to review the documents. The efforts to obtain these files and their expected production date are set forth in the attached Declaration of Ryan Tibbitts.

Respectfully submitted,

DATED this 12th day of January, 2004

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

In case you've forgotten what the Interrogatories were asking for, here is the list:

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

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

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

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

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

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

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

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

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

INTERROGATORY NO. 12: Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

INTERROGATORY NO. 13: For each line of code and other materials identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and, if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, and the terms under which is was distributed or made available (such as under the GPL or any other license).

Note that the judge's order, number 4, requires them:

"To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided."

If you recall, REQUEST NO. 75 asked for "All documents relating to the information requested in Interrogatory Nos. 12-13." Item 4 in the judge's order is listed separately from Interrogatories 12 and 13. Is it not possible to comply with 12 and 13 and still not show the code that interests us all the most?


  


SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied | 631 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO: Orwell's Newspeak is alive and well...
Authored by: darthaggie on Tuesday, January 13 2004 @ 04:28 PM EST
When is non-compliance compliance? when SCO is speaking...and I'm not
surprised, if anyone is wondering...

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:28 PM EST
If the judge doesn't like their excuse, there always is the notable
alternative: the dog chewed up our work!

[ Reply to This | # ]

SCO has had a YEAR to get it together
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:29 PM EST
Why should they get any more time? I hope IBM goes for the jugular.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: jesse on Tuesday, January 13 2004 @ 04:29 PM EST
Hmmmm What about the:
...non-privileged responsive documents...

Which have been sent... Does that mean that there
are some "privileged responsive documents" that have NOT been
provided?

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:32 PM EST
I seem to recall that the Judge's order was to either file the responses within
30 days or file an afidavit saying that they have not done so (or something to
that effect). Isn't that what they've done here?

Pierre

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:34 PM EST
Hope the Judge peruses here (is that allowed?).<br><br>

I still can't see what SCO can do in court unless <i>they</i> show
the code of the infringement.<br><br>

I have read a lot here this last week (great stuff Pamela), but maybe the
(USA)Law has it's own rules on who is suing who for what and how it's
done.<br><br>

Nick

[ Reply to This | # ]

Darl's next job...
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:35 PM EST
Isn't the job of Information Manager now open in Iraq?

[ Reply to This | # ]

Marketwatch: press release, 4:03pm
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:40 PM EST
SCO Group responds to court order in IBM suit (SCOX, IBM) By Rex Crum
SAN FRANCISCO (CBS.MW) -- SCO Group (SCOX) said Tuesday it has
responded to a court order in connection with its lawsuit against IBM
(IBM) over the Unix operating system. SCO said it answered certain
questions and produced evidence to support its claims against IBM. SCO
contends it owns the Unix source code and that IBM modified that code
to use in its version of the open-source Linux operating system.

[ Reply to This | # ]

Potentially stupid question about process
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:40 PM EST
Why does SCO serve the notice of compliance to IBM? Shouldn't this also be
sent to the court?

Also, does SCO have any responsibility to insure that content that is posted to
the web site - like this pdf - is legally correct? It seems like it would be
easy to post something like this that was misleading.

It also seems like the 'attached declaration by Ryan Tibbits' might be
something interesting to see.

[ Reply to This | # ]

60+ Pages
Authored by: lpletch on Tuesday, January 13 2004 @ 04:43 PM EST
SCO responded with 60+ pages. With the amount of information IBM requested for
each line of code in question 60 pages should cover about eight or nine lines of
code.

---
lpletch@adelphia.net

[ Reply to This | # ]

Am I wrong?
Authored by: kberrien on Tuesday, January 13 2004 @ 04:44 PM EST
Interrogatories 1-9, 12 and 13 of IBM's First Set of Interrogatories.

- This includes "the code" right?

>These Supplemental Responses, which exceed 60 pages, fully >respond to
the interrogatories

Exceeds 60 pages sounds like, more than 60, less than 100. Not all 60/100 pages
would be code too.

Thus, this doesn't sound like a lot of code. This doesn't sound like millions
of lines of code. This doesn't sound like 1500 files? This does not sound
like JFS, NUMA, all that. Or did they not notate that they handed over a couple
of CD's.

Can we make the deduction then, that SCO officially (in terms of the court -
"We'll show it at the appropriate time in court" ) has no code
worth mentioning?

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: DaveAtFraud on Tuesday, January 13 2004 @ 04:46 PM EST
"The SCO Group Inc. (Nasdaq: SCOX) today announced that it has responded..."

I guess SCO considers "Duh" to be a valid response.

---
Quietly implementing RFC 1925 wherever I go.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:46 PM EST
Now how does one go about getting the protective order
lifted? Could say Novell or RedHat file a request that the
information be made public?

[ Reply to This | # ]

The HOLIDAYS?
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:48 PM EST
$3 billion on the line, and they took a HOLIDAY? D---, and I work Christmas for
less than $100.

Well, I suppose they wanted to enjoy their last Christmas in the outside world.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:50 PM EST
Sixty pages! A million lines of 'infringing code' and only sixty pages. And of
course the 'we'll have more after we go fishing clause' that got them here in
the first place.

Tom

[ Reply to This | # ]

Not by a long shot
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:58 PM EST
This is obviously not enough. No doubt the acutal compelled evidence would fill
_a lot_ more than 60-100 legal letter pages. Add a few digits and it might be
close to substantiating the claims that SCOG have been making in and out of
court _with specifity_ - which was what they were compelled.

No doubt the documents will be a lot of walking around the bush, and hopefully
the judge will rule it is not enough, opening for another few months of legal
wrangling and, for for the SCOG, wuite a few stock-driving press releases.

Seriously. Commonsensically - you can't just say 'I'll show you 1% of mine if
you show all of yours, even if I was compelled to show it all in the first
place'. That would be more like contempt of court, for chrissake ...

This is just a big laugh.

[ Reply to This | # ]

SCO Continues The Argument They Lost In December?
Authored by: Anonymous on Tuesday, January 13 2004 @ 04:59 PM EST

"Upon receiving complete discovery from IBM, including all versions of AIX
and Dynix/ptx, there undoubtedly will be further evidence of IBM's contractual
breaches and other violations of law, as detailed in the attached Declaration of
Ryan Tibbits."

This looks a hell of a lot like what they were arguing back on 12/5. And 60
pages doens't even come close to being responsive to IBM's requests.

I could be wrong, but I have trouble believing that they satisfactorily listed
all the Linux code they claim to have rights to. I mean, how can you fit
"millions of lines" in 60 pages?

It looks like SCO is continuing the argument they made in December that they
can't know what IBM's infringing contributions are without access to all
iterations and modification in the AIX and Dynix code trees.

If that's the case, then SCO will get slapped hard at the next court date, and
I'm guessing they'll request a delay on that as well, to respond to IBM's
inevitable motions to further compel specifity or dismiss the case.

This can't be about anything but delay at this point. This is insanity. 60
pages? My God, they're gonna get ripped to shreds. I can't wait to see Ryan
Tibbets affidavit.

Frank Newsome, this looks like a job for you. How soon do you think we can see a
copy of that?

[ Reply to This | # ]

Can anyone explain this huge trade yesterday?
Authored by: jbardhan on Tuesday, January 13 2004 @ 05:06 PM EST
Hi all--

Apologies if this has been posted before, but why would somebody have moved >100k shares yesterday afternoon around 4pm? Check here. That's way out of line with their typical volume.

PJ, you run a great site. Thanks for the information, the commentary, and (of course) the entertainment!

j

[ Reply to This | # ]

SCO changes their description of themselves - AGAIN.
Authored by: Scott_Lazar on Tuesday, January 13 2004 @ 05:06 PM EST
It was noted previously that SCO had previously changed how they described
themselves on their PR's. Maybe I'm mistaken, but it looks to me like
they've backed up even further:

From the pr newswire: http://biz.yahoo.com/prnews/040113/latu108_1.html


About SCO

The SCO Group (Nasdaq: SCOX - News) helps millions of customers in more than 82
countries to grow their businesses everyday. Headquartered in Lindon, Utah, SCO
has a worldwide network of more than 11,000 resellers and 4,000 developers. SCO
Global Services provides reliable localized support and services to partners and
customers. For more information on SCO products and services, visit
http://www.sco.com .

SCO, and the associated SCO logo are trademarks or registered trademarks of The
SCO Group, Inc. in the U.S. and other countries.



Owner of UNIX? Not by a longshot!
Scott

---
LINUX - Visibly superior!

[ Reply to This | # ]

IBM should offer a draw with purchase of laptop
Authored by: shoden on Tuesday, January 13 2004 @ 05:06 PM EST
If you buy a new laptop from IBM you get TWO roundtrip tickets to beautiful UTAH
to see the SCOGBowl on January 23, 2004

---
S.K.

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

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:07 PM EST
The quote from the hearing about the date related to the date of the hearing
(Jan. 23, I think) and not the date of production of discovery.

[ Reply to This | # ]

Christmas Parties!!
Authored by: kberrien on Tuesday, January 13 2004 @ 05:08 PM EST
January 2, 2004

Dear Mr. LaSala,

I returned to my office today from the holidays and received your letter of December 23, 2003, which was faxed to our office after the close of business on December 23, 2003. Our offices were closed, beginning December 24, 2003 until today.

[signature of Ryan E. Tibbitts]


-- Novell posted letter

Closed is a voluntary thing isn't it? Does not sound like a viable excuse to me.

I worked! And its a civil service job!

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: chribo on Tuesday, January 13 2004 @ 05:11 PM EST
Great work, they produced more than 60 pages. And asked IBM for 40 million
pages! Do you remember how the judge reacted on that request?

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: nealywilly on Tuesday, January 13 2004 @ 05:15 PM EST
What gall to say in one sentence:

SCO has also produced all [ALL???, as in EVERYTHING???] non-privileged
responsive documents requested by IBM.

Then say in the very next sentence:

The only exception [EXCEPTION??? as in NOT EVERYTHING???] to such production is
the files of certain officers and directors for whom SCO could not obtain the
requested materials during the holidays with sufficient time to review the
documents.

They should have said:

SCO has also produced [almost or nearly or virtually all non-privileged
responsive documents requested by IBM.

Or

SCO has also produced all non-privileged responsive documents requested by IBM
[except for] the files of certain officers and directors...

Correction: The should have said the above, if they weren't SCOnads.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Mark_Edwards on Tuesday, January 13 2004 @ 05:15 PM EST
"6. If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance.


I wonder what proof SCO need to provide to show that they tried to get this extra information (and didn't in fact wait until the 11th Jan to try get the info!). Did Kevin McBride forget that the offices were closed for 5 days for Chrismas and not try to get it extended or would the judge of expected them to work during x-mas??

Another question... The Yahoo Finance board has been asking about possible Fraud with respect to the SUN and MS licencees? If (as it looks) these were not new contracts shouldn't 95% of the 21M+ that SCO recieved have gone to novell and not into SCO's SEC filings and therefore showing profitable quarters??!? I am starting to wonder if Novell are in fact on the virge of themselves accusing SCO of fraud and starting yet another trial against SCO??

This is getting more and more exiting every day...

Mark.

[ Reply to This | # ]

Refresh your memory
Authored by: kberrien on Tuesday, January 13 2004 @ 05:20 PM EST
Lots of posts regarding would should/would/could be in the 60 plus pages.

I had to refresh my memory here. Can someone make a link out this...

http://www.groklaw.net/article.php?story=20031206151020872

[ Reply to This | # ]

Could Wells confer with Kimball?
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:23 PM EST
Curious to know how closely, if at all, the presiding judge works with the
magistrate on discovery.

Would Wells be allowed to confer with Kimball on what to do next? I have no idea
what the rules are.

[ Reply to This | # ]

Good News
Authored by: PM on Tuesday, January 13 2004 @ 05:25 PM EST
The good news is that it should take IBM's lawyers too long to digest the 60
pages and prepare a stinging memorandum in good time for the Jan 23 hearing.

[ Reply to This | # ]

  • Good News - Authored by: roadwarrior on Tuesday, January 13 2004 @ 08:48 PM EST
    • Good News - Authored by: Anonymous on Tuesday, January 13 2004 @ 09:08 PM EST
SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: walth on Tuesday, January 13 2004 @ 05:26 PM EST
I love it. Judge gives them 30 days to comply, and THEY TAKE 10 OF THOSE DAYS
OFF!

Can you say "Contempt?" I thought you could!

[ Reply to This | # ]

SCO updating their homepages
Authored by: IMANAL on Tuesday, January 13 2004 @ 05:28 PM EST
Ok, I can understand SCOX is having trouble updating their homepages. But this:

From http://www.sco.com/unitedlinux/

"UnitedLinux has full support from industry companies such as AMD, Borland Software Corporation, Computer Associates, Fujitsu Siemens, Fujitsu, Hewlett-Packard, IBM, Intel, NEC, Progress Software, and SAP. UnitedLinux provides access to all geographies through one certification. With fewer Linux distributions to certify to, ISVs will save time and money. Because UnitedLinux adheres to true standards, such as LSB and Li18nux, ISVs have the assurance of a consistent port from one UnitedLinux installation to another."

From http://www.sco.com/company/partners/

"Hewlett Packard, a Fortune Global 100 company, is the largest supplier of computing systems in the world. HP designs, develops, manufactures, and markets hardware, software, solutions, and services, including industry-leading enterprise computing solutions, fault-tolerant business-critical solutions, and communications products, commercial desktop and portable products, and consumer PCs."

"For more than three decades, Intel Corporation has developed technology enabling the computer and Internet revolution that has changed the world. SCO has over 21 years of experience in the creation of UNIX solutions for Intel based Architecture. And since 1994, SCO has been working to further the Linux operating system as a platform for mission critical computing deployments."


What?! Haven't they read the news? Intel is no longer a friend.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:31 PM EST
When does IBM reply to this ?

[ Reply to This | # ]

What would the right way be to show the code?
Authored by: jrc on Tuesday, January 13 2004 @ 05:38 PM EST

At the 5 December hearing, Judge Wells made it clear that SCO was to provide the source codes with specificity:

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.

We all doubt this has come to pass with today's release of 60 pages of non-privileged documents. However, if (as has been suggested on Yahoo) that the 60 pages are simply a spreadsheet of files and line numbers, then we may have our evidence, albeit in a shoddy format.

This raises an interesting question: What would the right way be to compare the code and capture the geneology for a court? The outputs of diffs would be confusing to a lay judge or jury, and would not be the ideal way to trace a code segment's evolution/parentage for a layperson. So would the right way to display all this information would be in a comparative format, where the SCO code and IBM code would be side by side, with detailed annotations about the genealogy and provenance of the code in third column? What works well?

---

[ Reply to This | # ]

Holiday Office Closing
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:40 PM EST

Let me get this straight: they have the gaul to file a notice like this with the courts after sending Novell a letter stating that they were unable to reply to a letter from Novell's legal department because they were closed for the holidays????

(Something makes me think that Novell timed that letter just to see if they were still in the office hard at work at providing those discovery items. If so, that's quite clever. Of course, I suppose they could have just driven by the SCO office to see if the lights were on.)

Prediction: By the time the courts get done with SCO they going to sound like Steve Marriott ungoing a sex change operation without anesthesia.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:42 PM EST
http://www.sec.gov/complaint/cf942sec9570.htm

Has anyone asked the SEC to look into SCO's press releases and trading
activities?

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: TerryL on Tuesday, January 13 2004 @ 05:48 PM EST
It still looks like they are saying they need IBM to give them their code so
they can find what it is that IBM have done wrong.

But, now there's Novel saying that the licence IBM has doesn't cover anything
IBM wrote except when it's combined with AT&T code they can claim that
things will have to wait until they prove that Novel are wrong and they really
do have the rights to whatever IBM wrote and ever combined with AT&T code
even when it's not combined with AT&T code before they can find
anything...

Maybe this is their plan - have enough legal cases on the go - each dependent on
the outcome of one or more of the others so that the whole heap of spaghetti
drags on for years...



---
----
All comment and ideas expressed are my own and do not necessarily reflect those
of any other idiot...

[ Reply to This | # ]

Sixty pages
Authored by: anwaya on Tuesday, January 13 2004 @ 05:50 PM EST
I can't believe that SCO thinks that these 60 pages are going to satisfy IBM that discovery with specificity is complete, or persuade the court that there is a case for IBM to answer. I can't help thinking that this amounts to a pathetic display of arrogance on SCO's part.

Though I could be wrong: perhaps there is evidence so damning that it can be put down on paper in such a compact way that it's worth fifty million dollars a page.

We shall see.

[ Reply to This | # ]

  • Sixty pages - Authored by: Anonymous on Tuesday, January 13 2004 @ 06:48 PM EST
  • Sixty pages - Authored by: Anonymous on Wednesday, January 14 2004 @ 03:53 PM EST
Time for SCO's exit strategy? Surely?
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:51 PM EST
Frankly, I was surprised to see anything at all from SCO.

They are in so deep now that they need an exit strategy,
and more importantly, surely their lawyers must be
advising this - or opening themselves to professional
negligence etc.

Given the correspondence between SCO and Novell, surely
this must end well short of the courtroom door. Better for
SCO to die quietly in a corner, rather than have its blood
spilled on the carpet before the judge. If only to deprive
us of the pleasure...

Whether IBM would let this matter finish anywhere other
than in court is another matter. The only responsible
thing for Boies <?sp?> to do is volunteer to carry the can
and advise SCO to sack him and employ new lawyers to
negotiate with IBM, on the pretext that SCO feel badly
advised. Not that things work out that way.

But something has to give. I can see a change of lawyer,
followed by a motion to delay from SCO on grounds of
change of legal representation, which IBM agrees to. Then
many months of silence, while the lawyers effectively try
the case in private, without a judge, during which time
SCO goes quietly bust or takes some very humiliating
medicine.

But with the stakes this high, SCO just have to file
something, just to stay alive, and Darl just has to brag
on, 'cos if he doesn't, it will show he knows the game is.
over.

[ Reply to This | # ]

PJ, Mistake?
Authored by: Anonymous on Tuesday, January 13 2004 @ 05:52 PM EST

She might note that she gave them a chance to ask for a later date at the December 5 hearing and that Christmas is a known holiday they might have considered when agreeing to the due date. Or she might let it pass. But doesn't the transcript indicate that she was to be notified if SCO saw there would be a problem meeting the deadline?:

"THE COURT: . . . If you want a date later than that, that's fine. I don't care.

PJ, sorry if I'm mistaken, but I don't think the judge gave SCO any option to request a response period longer than thirty days. I thought the above quote was in regard to the *hearing*, not the discovery.

If I'm correct, and you change it, feel free to delete this post as well. Also feel free to delete it if I'm just plain old wrong.

[ Reply to This | # ]

  • PJ, Mistake? - Authored by: Anonymous on Tuesday, January 13 2004 @ 06:25 PM EST
  • PJ, Mistake? - Authored by: skidrash on Tuesday, January 13 2004 @ 07:18 PM EST
OT - SCO's reason to see AIX code.
Authored by: radix2 on Tuesday, January 13 2004 @ 06:00 PM EST
SCO has claimed in the press that things like JFS, NUMA, SMP and RCU are the
infringing items and we know that these are IBM IP (or were?).

But the court action is really about a breach of contract, whereby IBM may have
modified the SYSV source code (licenced deom SCO) in order for those components
to work. They have created a derivitive work known as AIX (which they cannot
release to source to), and portions of that have been modified to provide the
hooks for JFS, NUMA, SMP and RCU. These hooks cannot be contributed to a
non-licenced party (ie Linux or BSD).

SCO's argument is "Our SysV source (AIX in its basic form) was modifed to
allow JFS, NUMA, SMP and RCU to correctly function. Now these things are
available in Linux, which also needed the hooks/modifications to be made. Seeing
as you (IBM) are the only ones who had access to both the source of SysV/AIX and
JFS, NUMA, SMP and RCU you (IBM) must have been the one who made the changes to
Linux and thus released the code that was in SysV/AIX to Linux.

This is in breach of your licence agreements and has undermined our licencing
business. We seek damages of $3B as compensation, but in order to prove beyond a
shadow of a doubt, we MUST see all released and interim versions of AIX source
code to identify the similarities between the hooks in SysV/AIX and Linux. Hand
it over please."

Remember that they keep talking about their ABI? Well maybe they are just
referring to the appropriate hooks that IBM inserted into AIX in order for the
really nifty scalable stuff to work and now those "same" hooks have
appeared in Linux.

This of course need not be the only way those hooks made their way into the
Linux Kernel (example IBM published the "ABI" to each of those
subsystems). but is is a line of argument someone could take if they were
desparate/paranoid enough.

[ Reply to This | # ]

The SCO Patch to the Linux kernel
Authored by: webster on Tuesday, January 13 2004 @ 06:07 PM EST
IBM will now work with the coders, experts, Linus and others who will now
maintain confidentiality to make a patch that removes any unnecessary SCO code
or any code claimed by SCO that has any colorable argument. They will include
unrelated and dummy patches already contemplated so that no one will know which
files were claimed by SCO. This will maintain SCO's confidentiality and make
Linux code safer.

It will also mitigate damages immediately. SCO won't be able to claim damages
for any code before notice to IBM nor any after this patch. They could lose for
winning due to their not given reasonable, timely and specific notice.

Linux shall soon be more free-er.



---
webster

Recent Windows refugee

[ Reply to This | # ]

Note even close...
Authored by: rand on Tuesday, January 13 2004 @ 06:35 PM EST
SCO's responses to IBM's First Set of Interrogatories and First Request for Production of Documents
and
SCO's revised and supplemental answers to Interrogatory 1
together add up to over 80 pages, and THEY weren't even close.

Farce, farce, farce.

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

[ Reply to This | # ]

Response to #12 here
Authored by: IgD on Tuesday, January 13 2004 @ 06:47 PM EST
60 pages? I could answer the most important interrogatory in 3 lines:

Respone INTERROGATORY NO. 12:

Files in Linux in question: *
Line numbers affected: All
Nature of rights: All derived from Unix.

[ Reply to This | # ]

Attention PJ sort of mistake
Authored by: Anonymous on Tuesday, January 13 2004 @ 06:51 PM EST
SCO are compelled to answer 1 to 9, and 12 and 13.

They are not compelled on 10 and 11.

[ Reply to This | # ]

SCO Compression Technology Revealed
Authored by: Anonymous on Tuesday, January 13 2004 @ 06:55 PM EST
Expect SCO stock to rise sharply very soon.

"New Super Microdot Technology squashes Millions of Lines of code into
just over Sixty Pages"

"Hailed as the Environmental Friendly Breakthrough of The Year"

Darl McBride : "We realised this was the perfect opportunity to
demonstrate the power of SCOUnix printer drivers. To view the documents IBM
attorneys are welcome to use the electron microscope in our labs."

[ Reply to This | # ]

with specificity - NOT
Authored by: maco on Tuesday, January 13 2004 @ 06:56 PM EST
SCO will be parading the header files and, as said, lines 1 through 10,000 of any file - forcing IBM to go again to the court asking for specificity.

In this way SCO is still around because IBM cannot get a pre-trail ruling on header files (and other similar, non-sensical issues). SCO gambles their ploy will allow them to see all versions of AIX in the odds something slipped through - at least enough to present in court.

Like lingering pneumonia, they will gasp on.

sorry

[ Reply to This | # ]

judge and jury
Authored by: maco on Tuesday, January 13 2004 @ 07:01 PM EST
this trail - SCO vs IBM - will not see a jury. however, IBM vs SCO, probably
will.

[ Reply to This | # ]

SCO: Environmentalists par excellence
Authored by: Anonymous on Tuesday, January 13 2004 @ 07:11 PM EST
After I read through all the details of what SCO had to supply to IBM, I
couldn't help thinking in terms of deforestation.

But wait. SCO has managed to supply all of that on just 60 sheets of paper,
preserving hundreds of hectares of rain-forest for future generations.

I hereby nominate Darl McBride for the 2004 Goldmann Prize.

[ Reply to This | # ]

2003 ??
Authored by: old joe on Tuesday, January 13 2004 @ 07:21 PM EST

"Groklaw © Copyright 2003 Pamela Jones."

Er this should be 2004 I think?

Joe

[ Reply to This | # ]

  • 2003 ?? - Authored by: ram on Wednesday, January 14 2004 @ 04:29 AM EST
SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: blacklight on Tuesday, January 13 2004 @ 07:30 PM EST
"1. SCO has responded fully and in detail to Interrogatories 1-9, 12 and
13 of IBM's First Set of Interrogatories. (See SCO's Supplemental Response to
Defendant's First and Second Set of Interrogatories dated January 12, 2004)
(hereinafter "Supplemental Responses."). These Supplemental
Responses, which exceed 60 pages, fully respond to the interrogatories based on
the information in SCO's possession."

Judge Wells will make her own independent determination as to whether the SCO
Group actually complied with her order, the SCO Group's self-serving assessment
notwhistanding. Given that the SCO Group claims full compliance with the
discovery requirements, it is reasonable to presume that the SCO Group has
backed itself into a corner and does not have either the evidence, the means or
the motivation to further comply, should judge Wells make the determination that
the SCO Group's compliance is not satisfactory. Should Judge Wells make this
determination, IBM has grounds to ask for summary dismissal.

In the meantime, the size of the SCO Group's supplemental responses (60+ pages)
does not appear to indicate that the SCO Group has made more than a cursory
effort to comply. However, I am willing to wait until the 60+ pages are
available before drawing a final conclusion - There is plenty of time for a
hanging.

[ Reply to This | # ]

If that is 60 pages of specifically what IBM "stole"
Authored by: SaveDrury on Tuesday, January 13 2004 @ 07:43 PM EST
then i calculate that to mean that each page of stolen material is worth about $50M. (the case is for $3B)

i can't contemplate anything on the planet worth that much on paper... not even a Gutenberg Bible is that expensive.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: pooky on Tuesday, January 13 2004 @ 07:52 PM EST
Well, it looks like SCOG is still playng games. I'll bet the reference to
everything in SCO's possession basically will end up re-interating their
argument (which the Judge already didn't buy) that they can't specify line by
line what IBM copied into Linux without IBM's code.

It's really starting to look like this might get tossed before trial even
begins, and just you watch SCO go try and re-file it in a different court (say
Federal?)

-pooky

---
Veni, vidi, velcro.
I came, I saw, I stuck around.
IANAL, etc...
Remember, just because SCO says it's so doesn't make it so.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 08:11 PM EST
If it can be shown and the court agrees with IBM that SCO did not comply with
the order, it is then time for IBM to move for sanctions against SCO.

krp

[ Reply to This | # ]

SCO's Notice of Compliance Says They Have Not Yet Fully Complied
Authored by: inode_buddha on Tuesday, January 13 2004 @ 08:42 PM EST
I wonder if the question of *which* officials were not available has any
bearing. Ideas?

---
"Truly, if Te is strong in one, all one needs to do is sit on one's ass,
and the corpse of one's enemy shall be carried past shortly." (seen on
USENET)

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 08:43 PM EST
SCO claims to have full rights to Unix but only gets 5% of the revenue?

That's kinda like saying the ford dealerships get the patents and copyrights
used to manufacture the cars.

[ Reply to This | # ]

IMPORTANT: More details of affidavit
Authored by: Anonymous on Tuesday, January 13 2004 @ 08:47 PM EST
(I posted this in a nested thread, but it's a good 'un, so I hope people
don't mind me posting it separately... I hope PJ sees this).

http://www.infoworld.com/article/04/01/13/HNscoshowscode_1.html

1. QUOTE: Monday's response included no examples of copyright violations,
Stowell said. "We've not introduced copyright infringement as part of our
case with IBM. We've tried to make it clear that it's a contract issue."


Compare

INTERROGATORY NO. 12: Please identify, with specificity (by file and line of
code), (a) all source code and other material in Linux (including but not
limited to the Linux kernel, any Linux operating sytem and any Linux
distribution) to which plaintiff has rights; and (b) the nature of plaintiff's
rights, including but not limited to whether and how the code or other material
derives from UNIX.

If the quotation is correct - SCO did not answer 12(a) completely, if at all.

Presumably for the same reason that they did not answer it previously - they
claim the case arises from "IBM's misconduct" so this info is not
discoverable. The court has already rejected this argument as it is
discoverable for IBM's countersuit.


2. QUOTE: In a declaration that accompanied SCO's response, the company's
general counsel, Ryan Tibbitts, claimed that Linux's read copy update,
journaling file system, enterprise volume management system, AIO (Asynchronous
I/O), and "scatter gather" I/O code had been derived from either AIX
or Dynix/ptx and therefore were improperly contributed to Linux.

If the quotation is correct, they did not identify by file and line of code nor
the history of the code in question.


3. QUOTE: Some other documents will be sent to IBM later, according to SCO. In a
court document posted to the www.sco.com Web site, SCO admitted that it had
failed to provide IBM with "files of certain officers and directors for
whom SCO could not obtain the requested materials during the holidays with
sufficient time to review the documents."

QUOTE (cont'd): Though he declined to say which SCO officers and directors or
what files the court document referred to, Stowell said that the files in
question would be delivered to IBM before the next court meeting between IBM and
SCO, scheduled for Jan. 23.


Obviously they are not complaint in terms of the documents, I'll leave
discussion of that for now.

[ Reply to This | # ]

"Over 60" pages
Authored by: atul on Tuesday, January 13 2004 @ 08:56 PM EST
The press release reads like it was written by, and for, people who think
"over 60" is a whole lot of pages.

[ Reply to This | # ]

  • "Over 60" pages - Authored by: Anonymous on Tuesday, January 13 2004 @ 09:13 PM EST
OT: Google search: site:sco.com morals OR honesty
Authored by: Anonymous on Tuesday, January 13 2004 @ 08:57 PM EST
I just saw this on a slashdot post and modified it a bit.
Do a Google search for "site:sco.com morals OR honesty" and see how
many results you get... anyone surprised? Or can anyone recommend a better one?

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: cricketjeff on Tuesday, January 13 2004 @ 09:00 PM EST
30 days, 60 pages...
2 pages a day and they didn't have time to do it all?
Did Darl do it all with his own crayon?

[ Reply to This | # ]

Number 12
Authored by: Anonymous on Tuesday, January 13 2004 @ 09:12 PM EST
Frankly, if just their answer to interogatory 12 (Basicly: "List all
parts of Linux you own") fits on 60 pages, then the Linux people have
nothing to worry about.

[ Reply to This | # ]

Tibbitts affidavit
Authored by: overshoot on Tuesday, January 13 2004 @ 09:39 PM EST
INTERROGATORY NO. 1: seeks specific identification of all alleged trade secrets and confidential or proprietary information that SCO alleges IBM misappropriated or misused. This information is requested by product, file and line of code.

AIX, but without the source requested by SCO we cannot specify files or lines.

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

SCO has requested this information from IBM, but IBM has not responded to our requests.

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

We have requested this from IBM but they have not complied.

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

We have requested this from IBM but they have not complied.

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

We have requested this from IBM but they have not complied.

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

We have requested this from IBM but they have not complied.

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

We have requested this from IBM but they have not complied.

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

We have requested this from IBM but they have not complied.

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

We have requested this from IBM but they have not complied.

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

We have requested this from IBM but they have not complied.

INTERROGATORY NO. 12: Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

We have requested this from IBM but they have not complied.

INTERROGATORY NO. 13: For each line of code and other materials identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and, if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, and the terms under which is was distributed or made available (such as under the GPL or any other license).

We have requested this from IBM but they have not complied.


I'm serious. If you look at SCO's discovery requests, every one of these points would be addressed by one of them. Once you wrap the bare bones up in legalese (references to specific SCO discovery requests, IBM responses and motions, etc.) you're just about to 60 pages.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: RSC on Tuesday, January 13 2004 @ 09:47 PM EST
Just a thought to chew on....

Lets supose that the real reason for the IBM case is the opportunity to see all
of IBMs' code, to get the "real" evidence of the copyright
infringments in Linux.

Just remember that while they have been harping on and on about upcoming
copyright filings, they have yet to file a single one. Why? Because they don't
have the eveidence yet. So what if this is just a premise to get the
"dirty" code that they have convinced themselves exists.

If this is what they are doing, then they could end up in a whole world of pain.
If the judge refuses their motion to compel, or even worse, she grants it and
they find there is no "dirty" code, it is literally the end of SCO.


Seems to me a bit of an "all or nothing" ploy with a massive risk
attached.

Have a think and let me know if you feel I am on the same planet as Darl. ;-).


RSC


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

[ Reply to This | # ]

Did SCO really just blow it off?
Authored by: Anonymous on Tuesday, January 13 2004 @ 09:50 PM EST
Could this be used to find the lawsuit legally frivolous? Wow, A lot of people
could go down for that one.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 09:57 PM EST
INTERROGATORY NO. 5: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 5 seeks identification of (a) all agreements relating thereto, and (b) all copyrights and patents relating thereto, including but not limited to the owners, licensors, licensees, assignors or assignees thereof.

Don't forget to name Novell, Mr. McBride! You know (nad have not disputed) that Novell retained the unix patents. I just love the way IBM attorneys work these little details!

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 10:08 PM EST
While SCO may want AIX source code to find IBM's (ahem) infringements, doesn't
interogatory 12 ask for the whole picture? Not just IBM related but *ANY*
infringement? Doesn't that merrily depend on the output of their MIT wonder
weasles comparing Linux and some mythical matching version of SVRX?? Where is
there an AIX requirement for this interogatory to totally and completely be
answered?? If they don't know what they have, why should IBM or any body else
have to explain it to them..

[ Reply to This | # ]

The Art of Non-Compliance
Authored by: Anonymous on Tuesday, January 13 2004 @ 10:11 PM EST
From what I have learned stonewalling on discovery is a highly refined art.

The trick is twofold: first, pretend you are in compliance when you have no
intention in doing so, and second, blame the other party for any deficiencies
when you are **finally** forced. There are often a series motions to compel,
each taking 30 days for response, reply, hearing and then forced
"partial" disclosure in the guise of "full disclosure"
Of course sprinkle in holidays, vacations, illnesses, oversights, errors in
photocopying, absent witnesses, dog ate my (fill in the blank).

A good lawyer can add months to the process and tens of thousands in legal fees
leaving the other party constantly complaining to the Court. No surprise that
Courts get quickly tired of the series of motions to compel and often blame the
moving party for not accepting what has already been provided. Judges then start
biasing the process accordingly and the result is necessary and readily
available evidence is kept out of the case. Been there.

Other benefits are: drag out the WHOLE process, inflate pretrial costs, make the
other side dig and dig through nonsense while the real issues are on hold, and
hopefully play your hidden evidence too late for the other party to adequately
respond. The cutoff might be 30 days prior to trial for disclosing evidence to
be used at trial and on complex issues this could force a delay. Very bad for
the requesting party so close to trial -- yet another way to bias the court. If
they don't get the evidence in in time they are home free, if they do get it in
its time to start settlement talks.

Anyway, one can expect that this production will be inadequate but then followed
by a series of half hearted attempts at supplementals, amendments, etc. Then yet
more motions and the like. Remember that how "specific" is left to
the eye of the beholder (You mean you REALLY wanted THAT, then you should have
asked EXACTLY FOR THAT.)

Then they start working on getting witnesses thrown out....

Done well, this strategy will result in IBM being short on evidence and their
lawyers up on sanctions; REAL skills top-dog lawyers brag about at the local
pub.









[ Reply to This | # ]

Attention PJ and IBM lawyers
Authored by: Anonymous on Tuesday, January 13 2004 @ 10:29 PM EST
Did Stowell just admit SCO's answers to 1 and 12 are deficient? Again focusing on today's Stowell quote - but this time comparing to a previous quote.

From http://www.infoworld.com/article/04/01/13/HNscoshowscode_1.html

INTERRO GATORY NO. 12: Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

QUOTE: Monday's response included no examples of copyright violations, Stowell said. "We've not introduced copyright infringement as part of our case with IBM. We've tried to make it clear that it's a contract issue."


But comments:
1. They didn't produce alleged copyright infringements into their production (?)
2. They allege the ABI stuff is a copyright infringement (their letters of December 18th)
3. And most interesting of all - see next quote - they allege that parts of those alleged copyright infringements were by IBM (which suggests failure to include copyright infringements means their answer to #1 is deficient too, (even by SCO's own standards).


From http://enterprise-linux-it.newsfactor.com/story.xhtml?story_title=SCO_Issues_New _Warning_to_Linux_Users&story_id=22903&category=opensrc

new letter, which is being sent to a select number of enterprises, SCO identifies some 90 copyrighted application binary interface (ABI) files in Unix that must be removed from Linux, Stowell said.

"These are files that SCO has never contributed to Linux but have been put into Linux," he explained, citing IBM, Sequent and SGI as those who allegedly placed the ABI files in Linux without authorization.

[ Reply to This | # ]

Digging for Violations
Authored by: Anonymous on Tuesday, January 13 2004 @ 10:43 PM EST
Am I mistaken, or hasn't SCO already received copies of the latest release
versions of each release tree of both AIX and Dynix? If so, they're going to
have a difficult time proving to the judge that they need the rest of the code
just to determine violations - base versions should be enough.

60+ pages... Including all of their licensee's information (they had access to
the code after all), and all of their (ex-)employees with access? Referencing
Linux, AIX, *and* Dynix? By line and file? With ownership details?

Well - this is going to be a short appearance on the 23rd. Hope Kevin has some
ointment - he's going to need it if he wants to sit down afterwards.

[ Reply to This | # ]

Implications of the lack of copyright claims
Authored by: whoever57 on Tuesday, January 13 2004 @ 11:15 PM EST
According to this article in Infoworld.com, there are no allegations of copyright claims:
'Monday's response included no examples of copyright violations, Stowell said. "We've not introduced copyright infringement as part of our case with IBM. We've tried to make it clear that it's a contract issue."'
Given that the relevent interrogatories did not limit the information to copyright claims against IBM, does this stop any further claims of copyright infringement against anyone else?

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

[ Reply to This | # ]

  • Late delivery ? - Authored by: Anonymous on Wednesday, January 14 2004 @ 12:51 AM EST
SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Tuesday, January 13 2004 @ 11:53 PM EST
Upon receiving complete discovery from IBM, including all versions of AIX and Dynix/ptx, there undoubtedly will be further evidence of IBM's contractual breaches and other violations of law, as detailed in the attached Declaration of Ryan Tibbits. Accordingly, SCO reserves the right to further supplement or amend its answers as discovery or further investigation may reveal.

Isn't SCO getting ahead of itself here? They are assuming there is going to be discovery from IBM, but that will happen only if SCO's discovery is complete, and the judge has not yet ruled that this has happened. I suspect the judge will be offended that SCO is presuming to know what she is going to decide.

Furthermore, how can they know that they will discover further violations?

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Wednesday, January 14 2004 @ 12:03 AM EST
These Supplemental Responses, which exceed 60 pages, fully respond to the interrogatories based on the information in SCO's possession.

SCO publically claimed over a million lines of code. There is no way they could list all that, plus all the things that have to say about the code, like proof of ownership, proof of protection, etc, in only 60 pages.

Some people are saying maybe SCO also included a cd. I doubt that, because they would have mentioned it in the notice of compliance. Remember, SCO is trying to boost up its image of what it has done, so it would surely include every item it handed over.

If this compliance is as bad as it looks, SCO is in very big trouble.

[ Reply to This | # ]

About AIX
Authored by: Sunny Penguin on Wednesday, January 14 2004 @ 12:33 AM EST
Please snug down your tinfoil hat to read this:

AIX is the IBM crown jewels.
SCO want to claim all SYS V "derivatives".
SCO's software (Unixware, Openserver) is hopelessly outdated.
Microsoft code is hopelessly insecure.
If SCO gets their hands on the AIX code, they have won.
SCO is not looking for any "mystery" files inside AIX.
SCO wants to sell or claim AIX.
Proprietary SCO code is not public.
Proprietary Microsoft code is not public.
How would the court know, if Microsoft came out with a binairy kernel based on
AIX for the "Longhorn" kernel?

Possession is 9/10, Microsoft never saw AIX .....

---
SCO directly to jail, do not collect two hundred dollars.
BTW - I never have been mistaken for a Lawyer.

[ Reply to This | # ]

  • About AIX - Authored by: Anonymous on Wednesday, January 14 2004 @ 12:43 AM EST
  • About AIX - Authored by: Anonymous on Wednesday, January 14 2004 @ 01:13 AM EST
  • About AIX - Authored by: Anonymous on Wednesday, January 14 2004 @ 01:23 AM EST
    • About AIX - Authored by: Anonymous on Wednesday, January 14 2004 @ 02:32 AM EST
  • About AIX - Authored by: mobrien_12 on Wednesday, January 14 2004 @ 01:29 AM EST
Could we be wrong?
Authored by: ile on Wednesday, January 14 2004 @ 02:35 AM EST
I am actually quite sure that what I am going to suggest
must be wrong; however, it is usually a healthy habit to
try to see the holes in one's arguments (after checking
that there are none in your soc(k)s - dreadful pun
intended).

Could it be the case that SCO is hiding the serious
responses in the _privileged_ documents? I.e. if they are
really harping on the derivative works, and
confidentiality of old UNIX code and trade secrets from
Monterey, they could be claiming that those specifications
of file and line fall within the privileged section even
for publicly known code.

Running counter to the old adage (never assign to subtlety
what is mere foolishness), I am trying hard to think that
they are not the bloody fools they are actually letting
out to be... Xmas holidays, for goodness sake! [Even in
Spain, where Epiphany day is an important holiday, this
would not run in any conceivable way].

My interpretation, however, runs also counter to the
distinction they make in their two paragraphs:

QUOTE 1. SCO has responded fully and in detail to
Interrogatories 1-9, 12 and 13 of IBM's First Set of
Interrogatories. (See SCO's Supplemental Response to
Defendant's First and Second Set of Interrogatories dated
January 12, 2004) (hereinafter "Supplemental Responses.").
These Supplemental Responses, which exceed 60 pages, fully
respond to the interrogatories END QUOTE

QUOTE 2. SCO has also produced all non-privileged
responsive documents requested by IBM. END QUOTE

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: nvanevski on Wednesday, January 14 2004 @ 03:00 AM EST
Here's a little math I've come up with, assuming that the 60 pages are full of
code and nothing else :

60 pages * 50 lines (condensed) = 3000 lines of code.

Point 1 : How much is left up to "millions lines of code" ?

Point 2 : 3000 lines = $3 000 000 000. So, 1 line costs 1 million dollars. Hey
SCO, wait up - I want to write code for you for just 0.1% of what you claim
it's worth!

Or not... you will sue me later if I give anybody my email address. Hell, it
will be SCO IP.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Wednesday, January 14 2004 @ 03:03 AM EST
SCO stock is under 16 since a long time. Could this be the dropping point, or
are all the pump&dumpers just getting out?

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Wednesday, January 14 2004 @ 03:24 AM EST
There's an old saying about the stupidity of bringing a knife to a gunfight.
What does it say about you when you show up with an imaginary plastic spoon?

[ Reply to This | # ]

Novell as trump
Authored by: caliboss on Wednesday, January 14 2004 @ 03:28 AM EST
Just speculating - IANAL and all that.

Couldn't IBM submit Novel's recent posting of their letters between SCO and Novell as proof that the SCO v. IBM case is premature and get it dismissed on those grounds...sort of a..."SCO needs to prove that it has the rights to bring this case in the first place before suing us" kind of thing.

Is Novell's timing a setup for this?

All the discovery and motions to compel are moot moot moot.

Folks, this could be over real soon.

---
Grok the Law / Rock the World

[ Reply to This | # ]

Wally and The Beaver
Authored by: RedBarchetta on Wednesday, January 14 2004 @ 03:38 AM EST
To be a fly on the wall during those lawyer/client meetings between The Darl, bro' Kevin, and Heise.

Heise: I thought you guys said there was definite code you could produce? Now I'm left lookin like a real hutzpah!

Kevin "Wally" McBride: Yeah, Darl, I thought you had this stuff all figured out? You promised me that banana ranch in the Caymans, with a 72-black-eyed-virgin congubine! You aren't producing code for IBM - boy, wait till mom gets home and yells at ya'!

Darl "The Beaver" McBride: Awww shucks, fellas... can't a guy mess up without mom yellin' at ya'?!? (pleadingly)

[ Reply to This | # ]

SCO's press release: the "protective order"
Authored by: anwaya on Wednesday, January 14 2004 @ 03:54 AM EST
"The interrogatories and evidence were produced on January 12, 2004 under the protective order previously entered in the case", SCO claims in their PRNewswi re-FirstCall press release today.

The only protective order they can be talking about protects what SCO and IBM have agreed is CONFIDENTIAL INFORMATION:

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

If information is already publicly known, then third parties - even competitors - can get the value anyway; and if the information has already been revealed by SCO, by, oh, including it in a release under a BSD-style license, it's not protected.

So nothing that anyone ever put into any Linux kernel distributed by SCO or Caldera is CONFIDENTIAL INFORMATION, and can't be kept out of the light by this order. Similarly, the Ancient Unix sources SCO released are not CONFIDENTIAL INFORMATION.

I look forward to IBM's challenges of any SCO assertions that any code they try to introduce is protected by this order.

[ Reply to This | # ]

Did SCO blink?
Authored by: anwaya on Wednesday, January 14 2004 @ 04:09 AM EST
It's Contract Only, Says Stowell...

Clearly, the "line for line", "literal" copying claims have gone away in the face of Novell's registrations: so we're left with a vague Contract claim again. But if SCO has pulled back from Copyright here because Novell has such a strong claim, then they'd be hard put to claim that Novell's not a party with the rights stated in the APA. Otherwise, where's the source code?

Under the APA, Novell can tell SCO how to manage a particular licensee's rights, and Novell's letters say IBM's free and clear to do what they like with their IP. As soon as the letters hit the court, it should be Game Over.

But, IANAL. I like chess, though.

[ Reply to This | # ]

Where are the contracts?
Authored by: Anonymous on Wednesday, January 14 2004 @ 04:21 AM EST
If SCO vs. IBM is only about contract issues and not copyright violation where
are the contracts? The only IBM contract we have seen is the original
AT&T-IBM Asset Purchase Agreement. There must be other contracts between IBM
and SCO, especially about Project Montery.

[ Reply to This | # ]

SCO knows exactly what they are doing
Authored by: Anonymous on Wednesday, January 14 2004 @ 04:23 AM EST
I believe the SCO knows exactly what they are doing. While they hold back certain documents, the case drags on. Meanwhile they get more companies signing up for that bogus license they are pushing. Plus they have Linux on the highwire and SCO gets to pull the wire every now and then. This keeps Linux in check. I think they are enjoying all of this. They are certainly getting more attention. They have certainly made money, plus they have dragged some companies into their little charades. Including Microsoft. I sure hope a list of companies gets published of the ones that signed up for the bogus License too. It will make a nice collection for some to add in their dumb wits collections. A sort of don't do business with the dummys list. makes you wonder if you should feel sorry for them, or laugh. The SCO don't deserve any more time to keep this going. it has gone on long enough. I think it's time for the Judge to put a foot down, and say "Enough is enough. Either you have it or you don't." If you don't, then no case. I mean think about it people. SCO is the ones that started this, and they boasted all this time that it was theres, and pay us or don't use it. If a company knows as much to sue someone stating that thier product has been compromised. Would you as the owner know exactly what it was that was stolen, and already HAVE all of that data in your hands? You can't sue unless you know what was taken can you? If they sued not knowing what was stolen, and they have no case then I say sue SCO to the last dollar they have. You must have a case or some proof of this why else would you go after other companies telling them to pay up or else too? If you can do this without good proof in the first place, then this truly is a field day for every business there is out there, and everyone is the next persons bait for a lawsuit. Perhaps maybe some laws need to be changed? ...Have mercy on us all if SCO can pull this off, hurt businesses, and not get punished for it down the road.

[ Reply to This | # ]

Have SCO dropped their proposal of a copywrite claim?
Authored by: Anonymous on Wednesday, January 14 2004 @ 07:56 AM EST
In this bit of PR from Blake Stowell, He states:
"We've not introduced copyright infringement as part of our case with IBM. We've tried to make it clear that it's a contract issue."
But in the Oral arguments on the 5th Dec, Kevin McBride said:
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.
I know we should take any of SCO's statements (in court or otherwise) with a huge bucket of salt, but does this mean that SCO's contract claims then are based only on contract and trade secret violations.

In any case, I haven't seen this point aired yet.

[ Reply to This | # ]

SCO starting to show is hand????
Authored by: Anonymous on Wednesday, January 14 2004 @ 08:31 AM EST
IANAL....

Isnt SCO suing IBM over breach of contract? Doesnt that contract say that SCO
own any extensions IBM made to sco-unix. SCO claim "sco code" is in
the linux kernel.
SCO havent found anything intresting comparing linux to sco-unix (minus the IBM
code).
so.... for SCO need acccess to the IBM source, which is what they are stalling
for. SCO are gambling a) the contract is valid and SCO owns IBM extensions and
b) IBM has included code developed by IBM (but owned by SCO) into Linux.

but.... SCO's contract with IBM might not be valid due to the SCO/Novell
contract.

a

[ Reply to This | # ]

Missed deadline...
Authored by: ghost on Wednesday, January 14 2004 @ 08:44 AM EST
Having said IANAL:

The deadline for SCO to submit their answers, has passed, and they themselves
state that they have not submitted a complete set of answers, and that further
information are to be submitted at a later date, as ammendments.

This deadline was set to 11:th of January, 2004, and this has now passed. The
next court hearing will be on the 24:th.

It is quite an impossible situation that IBM will find themselves in, if they
are given additional (and important?) information the days before the next
hearing.
IBM needs the time between the deadline and the upcomming hearing to go through
the information given, in order to be able to create an oppinion on wether the
supplied information is acceptable answers or not, and supplying additional
information at a very late stage (60+ pages), will add to the delay, because IBM
has to be given reasonable time prior to the hearing to deal with it.

From this, there is really only one possible outcome, if the deadline is worth
anything, this in light of the fact that SCO could have asked for an extended
period of time:

The court will consider deadline as hard, and SCO has failed to comply with the
requirements. In addition to this, they persist on going fishing, requiring
documents from IBM, in order to answer IBM's questions.

Since discovery was stayed by the court, and it was said that SCO had to put up
front all the answers first, before any further discovery was made, i believe
that their case, whatever it is, has been seriously damaged, or at least
weakened, since they will find themselves in difficulties of providing a solid
base for their claims.

Going to court saying "i think you have done this", is not enough.
You need some sort of real hard evidence, or at least something logically
coherent, supporting it, other than you just saying so.

As far as i have come to understand, SCO is pretty much toast (given the
direction current evidence points in) when it comes to copyright issues for
anything but their very own code, and when it comes to any contractual issues
with IBM, i believe that the story lacks in logical reasoning as well as not
holding together. They simply seem not to have done their homework properly in
the first place.

To me, it looks pretty much as if SCO is panicking about bad cash flow, from
almost no sales of virtually obsolete technology, and therefore leans towards
the last straw for their survival - litigation, using up their last remaining
funds.

I doubt that SCO will survive this very long, and all it takes to sink the ship,
is for one of the major investors like RBC to pull out. If they (or any other
major investor) do this, many others will follow, saving what can be saved, and
this will cut SCO short of funds.

I don't think that SCO has much time left, as they has gone into the red, and
unless there are some substantial revenue lurking somewhere, i believe that one
or more of the major investors will do just that - pull out.

Banks, or any other investor for that matter, are not stupid. They don't follow
a sinking ship to the bottom if there is chance of avoiding it.
Quite soon, i think we will see the financial point of no return for SCO, and
once it has started, it will snowball.

[ Reply to This | # ]

Boies?
Authored by: brenda banks on Wednesday, January 14 2004 @ 09:09 AM EST
wasnt there an article about boies /the lady that he is in trouble over in
florida being fined for contempt for delays such as this?

---
br3n

[ Reply to This | # ]

Novell going for a quick checkmate?
Authored by: Anonymous on Wednesday, January 14 2004 @ 09:32 AM EST
Interesting comment from Slashdot.

---

From http://slashdot.org/article.pl?sid=04/01/14/004235&tid=
http://slashdot.org/comments.pl?sid=92738&cid=7968969

Novell going for a quick checkmate? (Score:5, Interesting)
by fishbonez (177041)

I don't think it's an accident that Novell released all it's correspondence
with SCO this week. Novell is giving IBM a lot of ammunition in it's legal
battle with SCO. In those correspondence, Novell is clearly trying to exercise
its rights under its agreement with SCO and consistently sites the relevant
passages in those agreements to back up its requests. SCO just dismisses every
Novell request out of hand without reference to anything.

Of particular interest is Novell's assertion that derivative works belong to
IBM, SGI, etc. This claim of ownership of derivative works is SCO's core
argument. Without ownership of derivative works, SCO only has rights to actual
code and not the methods, processes, etc.

I suspect Novell is hoping that IBM may be able to short circuit the entire
process. If IBM can show that SCO is violating the agreement with Novell and
that SCO's ownership is in dispute, SCO may not even have standing with the
court to bring the lawsuit. In other words, SCO's suit could be dismissed until
it has established clear ownership of the copyrights it claims IBM is violating.


SCO would then have to file a lawsuit against Novell. In the interim, SCO's
stock price would freefall to nothing and it would not have the money to
continue its fight. Novell could probably reclaim all the UNIX rights it
supposedly sold if SCO is forced out of business.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Wednesday, January 14 2004 @ 09:34 AM EST
INTERROGATORY NO. 12: --->8---- (b) the nature of plaintiff's rights,
including but not limited to whether and how the code or other material derives
from UNIX.

In light of the Novell stuff, this one looks particularly bad for SCO. Add in
(from memory) Request 75 about all documentation relating to this and you can
see the problems they may well have. I'd love to know how they described the
nature of their rights 8-)

[ Reply to This | # ]

AT&T Settlement Successor?
Authored by: Anonymous on Wednesday, January 14 2004 @ 09:35 AM EST
Good comment from slashdot:

---
http://slashdot.org/comments.pl?sid=92738&cid=7969086

Re:No ruling in BSD case (Score:5, Interesting)
by dmaxwell (43234)

Assuming that SCO own the copyrights to SysV (and not Novell) then they are
AT&Ts successors in interest to the code. AT&T settled a dispute
involving that code base. That settlement will travel with the code regardless
of who owns it. The parent poster is correct, it isn't a legal precedent in
general. It sure as hell is one as far as Novell and (maybe) SCO is concerned.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:16 AM EST
In the DOJ/Microsoft case, the judge made inappropriate remarks.
Would this be an attempt to get a similar response from the judge?

kaycee77025@yahoo.com

[ Reply to This | # ]

SCO reserves the right?
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:03 AM EST
"Accordingly, SCO reserves the right to further supplement or amend its answers as discovery or further investigation may reveal."

Question for the legal eagles:

If an interrogatory asks for ALL of something, can the respondant "reserve the right" to only furnish SOME of it?

[ Reply to This | # ]

Christmas Closing
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:24 AM EST
The time span they appear to have been closed (Dec 24 - Jan 2) is not that
unusual. More traditional manufacturing organizations often close their lines
the entire week of Christmas and use the time to do maintenance with small crews
(cheaper that either paying lots of holiday pay or starting/stopping lines).

This has carried over to some companies non-manufacturing activies. I work in a
software development group, but we were closed for that same period.

[ Reply to This | # ]

60 pages may not be SCO's whole story
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:33 AM EST
People have been speculating here that the "60+" pages that are in
the so-callled "Tibbits" report is the entirety of SCO's response
to the order to compel production of discovery material.

I don't believe that this is the case.

The 60+ pages are more likely the affidavit describing sections of the demand
that SCO did not complete, along with "good reasons" why they did
not do so, and a schedule for when they would be completed.

The bulk of the discovery material would have been provided directly to IBM, and
wouldn't be an attachment to a court filing asserting compliance. I'm almost
certain that there were reams of material or a plurality of CDs provided to IBM
to answer their discovery requests, it's suicidal contempt leading to an
immediate dismissal otherwise.

Thad Beier

[ Reply to This | # ]

If I were judge...
Authored by: Utah on Wednesday, January 14 2004 @ 12:01 PM EST
I would put some conditions on granting SCO's discovery request for all AIX and
Dynix versions. It seems that SCO should first be required to demonstrate that
IBM's use of IBM's own code could potentially breach their contract. That's
what half of this case is about (the other half being UnixWare trade secrets).
If SCO's definition of "derivative works" is wrong (which it is,
according to the side letter), then the AIX and Dynix code have no relevance to
this case.

I would also demand that SCO quit using ambiguous terms. Specifically, I would
require them to use the terms "Santa Cruz Operation" or
"Caldera" instead of "SCO". And I would require the use
of "System V", "UnixWare", etc. instead of
"Unix".

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: linuxbikr on Wednesday, January 14 2004 @ 12:35 PM EST
It's amusing to see SCO withdraw to the "it's just a contract terms dispute" argument. Given the fact they've spent the last six months crowing about how they have millions of lines and rock solid evidence of copying from SysV to Linux, this is some serious backpedaling.

If they've dropped the copyright infringement angle, then their only move is to get the court to buy into their interpretation of "derivative works". Given that Novell has helped to define the rights which SCO has along with IBM's previous filings, unless we've missed something in the agreements and amendments, it seems clear to the layperson that what IBM writes for use in their copy of UNIX belongs to them to do with as they please.

I still want to know how SCO can get away with going from "millions of lines of blatant copying" to nothing. Those type of accusations, in my opinion, are pretty serious.

Ignoring the issue of the header files (since they cannot be copyrighted), that still leaves their examples of vertabim copying from SysV to Linux, comments included. And now they tell us it is just a contact dispute? I sure hope somewhere in their responses to IBM they detail these code elements because this is serious stuff.

To have the type of copying that SCO says occurred, it can have one of three sources:

  1. The code was originally drawn from BSD.
  2. The code was developed independently but because of the nature of the problem being solved, they arrived at the same solution independently and didn't comment the code.
  3. The code was copied from SysV to Linux "as-is" with copyright notices removed but comments left in.

Item 1 will make life interesting for SCO especially if the code in question was placed into Linux without the BSD copyright. However, an independent examination of the original BSD source could reveal its lineage and the copyright notice restored. I think the Linux community has been faithful in ensuring that appropriate notices have remained with the code contributions.

Item 2 can drag stuff out since it will take expert witnesses on both sides to explain the code development process and how two independent developers can converge on the same solution. It is also possible that the two developers found the solution in a publically accessible source (i.e a textbook on algorithms) and copied the code from there. There are only so many ways to walk a linked list, for example, and the code is well-known and widely published. It isn't inconceivable that two folks could have drawn identical solutions from a single source. Identifying the source and learning the code's history is what will consume time and energy and would probably not help SCO at all.

It's Item 3 that if I were the judge I would be asking questions about. I am sure the IBM lawyers will be raising the issue at the next hearing. For months and months with a mountain of press releaases to back it up, SCO has said they have iron clad "proof" that IBM copied SysV code to Linux (leaving aside JFS, RCU, etc). SCO has said that copying has occurred above and beyond IBM's idependent creations.

Why can't they produce this as IBM has requested "with specificity"? You can't get anymore specific. With the comments left intact, you've gone from coincidence to smoking gun. It is virtually impossible for two programmers working independently to write the same code with the EXACT same comments. Comments also reveals style and that is a very noticable thing in code. It cannot be easily duplicated and unbelievable two programmers will have the exact same thoughts about what to comment, where and how to say it. Sorry, I give better odds on my cat learning to open her own cat food with the can opener in the next week than I do of having identical commenting occur in independent work.

I think SCO's posturing in the press about this is about to come back and haunt them very badly in the next couple weeks. Any programmer understands this about comments. The only way to get the comments is a) you copied from a textbook exactly, text comments and all or b) You lifted the code from another source. The more verbose the commenting, the more dramatically the odds rise against you.

I'm waiting for IBM to drive this stake into their heart. Can SCO back off one of their original claims like this? It is a very serious charge, in my opinion. Derivative works aside (which is a separate issue and more rightly a contract terms issue since ownership of that disputed code lies with IBM and SGI), SCO has pointed the finger at IBM and said: "You copied our SysV code from AIX and put it into Linux and derived us of our property/rights.". Basically, they are saying IBM stole their code. I hope the judge doesn't forget about this issue. I hope the judge becomes quite pissed at SCO. I know as a member of IBM in dealing with the case and such an accusation that I would be.

[ Reply to This | # ]

SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: Anonymous on Wednesday, January 14 2004 @ 12:43 PM EST
<i>Now how did they do it?</i><p>They used the new specificity
font that the judge requested. I've never seen it myself but it obviously
offers much better compression that tar.gz if they got all of that stuff on 60
pages...

[ Reply to This | # ]

Typos? Time warp?
Authored by: rand on Wednesday, January 14 2004 @ 01:29 PM EST
Probably not a big deal, but the CERTIFICATE OF SERVICE on page 3 of the pdf calls it a "Plaintiff's Notice of Service of Discovery" instead of "Plantiff's Notice of Compliance With Court Order", as would be normal.

Also, the document was submitted by lawyers in Miami and signed in Utah on the same day FedEx delivered a (presumabably) signed copy to IBM in NYC.

FedEx Introduces
EINSTEIN OVERNIGHT

When it positively, absolutely
has to arrive before it left.

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

[ Reply to This | # ]

SCO shows disputed code. My response
Authored by: Thomas Frayne on Wednesday, January 14 2004 @ 01:59 PM EST
The Computerworld article: SCO shows disputed code mentions that SCO did not include any of its copyrighted code in Linux as part of its response to IBM.

I sent the following letter to the editor.

In its press releases and letters to its customers, SCO claims that violations of its copyrights are in the Linux kernel. On December 5, SCO's lawyer, Keven McBride, said in court that SCO would be filing copyright claims against IBM "in a few days, or no less than a week." Very peculiar phrasing!

On December 12, SCO was compelled by court order to answer ALL IBM questions with specificity by January 12. One of those questions was: INTERROGATORY NO. 12: Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating system and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

The order said to identify all rights that SCO claimed. It was not limited to rights that SCO was currently claiming as part of its suit against IBM. If, as Stowell said, SCO did not specify any copyrights that it owns in Linux, then either it is not claiming to own any such copyrights, or it has not complied with the court order. If SCO now officially declines to claim ownership of any such copyrights, then it is hard to see how they could claim them in any later suit against a Linux user or distributor. If SCO does claim ownership, it has blatantly not complied with the court order, and the judge can order sanctions. My guess is that part of the sanctions would be to bar SCO from suing anyone on any claims that it failed to specify in its 1/12 response to the compel order.

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IBM's next move: motion for partial summary judgement?
Authored by: Anonymous on Wednesday, January 14 2004 @ 02:19 PM EST
Putting together some of the pieces:

1. SCO claims to have complied fully and in detail to Interrogatory No.12.

2. Interrogatory 12 requires SCO to specify, by file and line, which Linux code infringes on their copyrights.

3. Blake Stowell is quoted in a news report that the SCO response includes no code. (Sorry, I don't remember the URL.)

Assuming that this is all true, do you suppose that IBM could request, and get, a partial summary judgement that there is no Unix code in Linux?

Paul Hughett

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Not having proved anything at all, they resume with another round of lawsuit threats
Authored by: Sparkchaser on Wednesday, January 14 2004 @ 02:49 PM EST
According to an article at vnunet SCO is threatening Linux users in the UK with lawsuits if they don't submit to licensing. Apparently, they contacted a number of users and, although the article doesn't say it in so many words, were more or less politely told where they could stick their licences.
"We have had some discussions. With some of those companies they have not been fruitful. There is a very good chance of taking legal action against these very soon.

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If at first you don't succeed, read the directions.
If that doesn't work, blame somebody

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SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied
Authored by: pooky on Wednesday, January 14 2004 @ 04:08 PM EST

IANAL.

That being said, I see this as another game by SCOG, similar to their fiasco with the source code on paper (i.e. human readable format).

http://sco.tuxrocks.com/Docs/IBM/Doc-94.pdf

Here’s the order text that is relevant:

6. If SCO does not have sufficient information in it’s possession, custody, or control to specifically answer any of IBM’s requests that are the subject of this order, SCO shall provide and affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance.

SCO is required to provide such answers and documents within thirty days from the date of this order.

Notice how in their notice of compliance they re-iterate the argument that they need IBM’s discovery to outline further evidence of IBM’s illegal acts?

The notice also says the attached (but not published) affidavit of Ryan Tibbits will address deficiencies in SCO’s production of evidence related to responsive documents IBM requested but has not received. Item 6 of the court order states SCO must supply this if their response isn’t fully compliant.

Nowhere in this document can I see anything that indicates to me that SCO hasn’t identified the infringing code they posses to IBM. (note I said "they posses" before you flame me) Although not said explicitly, the affidavit could contain an explanation of why they are not complaint with items 1 and 2 of the court order, but somehow I doubt the affidavit says that if it isn’t specifically mentioned.

What I read (between the lines if you will) is SCO produced to IBM everything they could find that they think infringes. They obviously don’t think IBM will view it as adequate so they keep re-iterating the statement to the Judge that they need IBM’s discovery to uncover “exactly” what IBM did. This appears to me that they complied as best they could and are hoping the court will recognize a good faith effort to do so.

This is the same argument they have been making in public and to the court through the entire discovery process so far.

This will probably be the point where IBM will argue that this is totally insufficient to base a lawsuit on and accusations of criminal wrongdoing. SCO will undoubtedly argue that they have enough evidence to base the lawsuit on and even though it’s not specific, there’s enough innuendo between what they did find and what IBM said publicly to rightly point the finger in IBM’s direction. It will boil down to an issue of how can SCO right IBM’s wrong ever if they can’t force IBM to cough up the evidence, and whether the judge will buy this argument and allow the trial to go forward.

-pooky

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Veni, vidi, velcro.
"I came, I saw, I stuck around."

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60 p narrative + affidavit + documents
Authored by: Thomas Frayne on Wednesday, January 14 2004 @ 06:14 PM EST
This note is an attempt to clarify the discussion of how a proper answer to the
interrogatories could be given in 60 pages.

SCO's certificate of compliance says they produced three things:

1. A 60 page response to the interrogatories. I think that this is a narrative
response, intended to give specific answers to the questions that they
previously tried to answer with a flood of documents. If they wanted to, or if
they were sufficiently intimidated by Judge Wells, they could provide a lot of
information in 60 pages, e.g., short statements like: "Module xx, lines yy
contain SCO's code under copyright zz." Most of the narrative could be
references to documents.

2. An affidavit stating their reasons for missing some required documents, and
promising to deliver by 1/23. Presumably the reasons will be more substantial
than: "We were at a Christmas party."

3. An unspecified, but probably large number of documents to answer the
interrogatories.

I don't see any reason to conclude from this much that SCO failed to comply
with the court order. However, I still think that SCO failed to comply, given
their press statements.

Stowell's statement that no information about copyrights was tendered amounts
to an admission that SCO blatantly withheld the required answers to
interrogatory #12.

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