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Declaration of Ryan E. Tibbitts
Wednesday, January 14 2004 @ 09:42 PM EST

Here is the Declaration of Ryan E. Tibbitts [PDF], which was attached to SCO's Notice of Compliance. It's his "Santa ate my files" document. Note that he says that he began gathering the outside directors' files only after December 12, so is Santa to blame? He writes:
After this Court's Order on December 12, 2003, I began to coordinate the gathering of responsive information from SCO's outside directors.
The hearing was on December 5, not December 12. SCO knew from the 5th that they needed to be finished by January 12, but made no efforts until the order was signed on the 12th?

IBM served its First Set of Interrogatories and First Request for Production of Documents on SCO on June 13, 2003. Beginning in August, IBM began notifying SCO by email and telephone that their answers were deficient and requested further information, which led to an impasse and IBM filing its 1st Motion to Compel Discovery early in October and a 2nd Motion to Compel early in November.

And SCO didn't begin to coordinate the gathering of information from SCO's outside directors until December 12 and so it missed the 30-day deadline because of the Christmas holiday? I am thinking the dog ate my interrogatories might be more convincing than this.

That isn't the worst. The worst, according to my nonprogrammer's eyes, is that SCO doesn't seem to identify with specificity much of anything. Forget spectral analysis and MIT mathematicians. They looked on the internet at Linux and compared it to the versions of AIX and Dynix they had lying around and infer there could be some problems. However, they can't say for sure unless IBM turns over more modern versions of AIX and Dynix/ptx! Isn't what you get from this?

14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.

17. In some additional cases it was also possible to infer with reasonable certainty from comments in the source code that the engineer who implemented that code had experience and knowledge of the methods, sequence and structures used in either or both of Dynix/ptx and AIX. Confirmation of this would require depositions from the IBM individuals involved in programming the actual Linux modules in question.

After they get everything they list in this document from IBM, they figure they'll need 90 days to evaluate what IBM turns over. I'm not kidding. 90 more days. They'd better send Boies to court for the next hearing. This is going to be a hard sell. In fact, this is a job for Superman.

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

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, P.C.
[address, phone]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER L.L.P
[address, phone]

Attorneys for Plaintiff The SCO Group, Inc.

_____________________________________________________

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

______________________________________________________

THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation,

Defendant.

_____________________________

Civil No. 2:03CV-0294DAK

Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

____________________________________

DECLARATION OF RYAN E. TIBBITTS

STATE OF UTAH
COUNTY OF UTAH

BEFORE ME, personally appeared the undesigned authority, RYAN E. TIBBITTS, who being duly sworn, deposes and says:

1. I am General Counsel of The SCO Group, Inc. ("SCO").

2. I also serve as Secretary of SCO's Board of Directors.

3. I have been involved in overseeing the production of documents and supplementing the answers to interrogatories.

4. After this Court's Order on December 12, 2003, I began to coordinate the gathering of responsive information from SCO's outside directors.

5. Specifically, before our offices closed down for the holidays -- from December 24, 2003, to January 1, 2004 -- I either spoke with, or left messages for, all outside directors.

6. If I was unable to reach a director in person, I left messages with both the director and his assistant. I explained the subject of the request and the urgency of the matter.

7. Our outside directors are located in Utah, Florida, and California.

8. Two of our directors were out of their offices and unavailable until the beginning of this year. Until they returned, I was unable to speak directly with them or with their respective assistants.

9. While we began to receive information from some directors during the last week of December, 2003, most of the information has been forwarded to me between January 5 and January 10, 2004.

10. In light of the traditional holiday hiatus from work, and the unavailability of some of those directors during the holidays, I undertook the best reasonable efforts to gather information responsive to IBM's requests from SCO's outside directors prior to this Court's deadline of January 12, 2004.

11. All of the information has been gathered and is currently being processed for the remaining individuals. None of these individuals whose documents are not yet available are the ones that IBM identified as seeking the documents in an expedited manner. All of the documents for individuals specifically identified by IBM have or had been produced.

12. SCO has made its best effort to answer IBM's interrogatories as completely as possible. SCO's engineers and consultants have informed me that to determine the nature, extent and source of IBM's contributions to Linux, engineers within SCO, as well as outside consultants, have examined the following materials and sources of Linux kernel source code (available online from http://www.kernel.org/). Several versions of source code were examined, including:

12.1.1 version 2.2.12 (an older version previously in widespread use)

12.1.2 version 2.4.1 (an old version previously in widespread use)

12.1.3 version 2.4.21 (currently in widespread use)

12.1.4 version 2.6.0 (the most current version as of our survey)

12.1.5 IBM AIX source code, an old version labeled MERCED/9922A_43NIA

12.1.6 Sequent Dynix/ptx source code, version 4.6.1

12.1.7 Publicly available source code "patches" published on IBM's Linux Technology Center web site, including:

12.1.8 http://www-124.ibm.com/linux/patches,

12.1.9 http://www-124.ibm.com/jfs/home.html,

12.1.10 http://www10.software.ibm.com/developer/opensource/cvs/jfs/

12.1.11 Other publicly available documents from IBM's Linux Technology Center web site at: http://www-124.ibm.com/linux/ and others

12.1.12 Publicly available project web pages at other sites, directly referencing or crediting IBM contributions:
12.1.13 http://lse.sourceforge.net/locking/rcupdate.html

12.1.14 http://www.sourceforge.net/project/showfiles.php?group_id=25076&package_id=17436

12.1.15 Newsgroup discussions

12.1.16 Linux developer discussion groups, and others.

12.1.17 Archived versions of many of the above sources, publicly available on the Internet Archive website at http://www.archive.org

13. Particular attention was paid to those areas in which IBM claimed to have made contributions to Linux that improved its performance, scalability, reliability, availability and serviceability.

These areas included, but were not limited to:

13.1 The technique of "Read Copy Update" (RCU)

13.2 The Journaling File System (JFS)

13.3 The Enterprise Volume Management System (EVMS)

13.4 Asynchronous input-output operations (AIO)

13.5 Direct input-output operations (DIO)

13.6 Non-uniform memory access (NUMA)

13.7 Symmetric multi-processor support (SMP)

14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.

17. In some additional cases it was also possible to infer with reasonable certainty from comments in the source code that the engineer who implemented that code had experience and knowledge of the methods, sequence and structures used in either or both of Dynix/ptx and AIX. Confirmation of this would require depositions from the IBM individuals involved in programming the actual Linux modules in question.

18. As a result of this work, the following conclusions were reached:

18.1 The "Read Copy Update" (RCU) code contributed to Linux by IBM was copied substantially verbatim with only relatively minor changes from Dynix/ptx.

18.2 The Journaling File System (JFS) code contributed to Linux by IBM was almost certainly copied and adapted for Linux from a version of AIX more recent than the one available for comparison

18.3. The "Enterprise Volume Management System (EVMS) contributed to Linux by IBM is based on the same architecture and data structures as are present in the AIX Volume Management System, and was therefore copied from AIX.

18.4. The AIO code contributed to Linux by IBM was written by an engineer who had a detailed knowledge and familiarity with the same area of technology in Dynix/ptx, and who likely used the same methods and/or structures in the AIO Linux implementation.

18.5. The scatter/gather I/O code contributed to Linux by IBM was written by an engineer who had access to the same area of technology in AIX. This engineer appears to have worked in conjunction with the aforementioned Dynix/ptx engineer and likely implemented Dynix and/or AIX methods and/or structures in the scatter/gather I/O Linux code.

19. In order for SCO to fully answer IBM's interrogatories, we require access to the missing verisons of software, specifically:
19.1. All versions of AIX source code subsequent to the version labeled MERCED 9922A_43NIA up to the most recently released version, as well as the current internal development version within IBM, together with documentation and programmer notes from the development process;

19.2. All versions of Sequent Dynix/ptx source code from one year prior to verison 4.6.1 to the final release Dynix/ptx, together with documentation and programmer notes from the development process;

19.3 All versions of JFS, whether a part of AIX or not (including, but not limited to the AIX and OS/2 versions), together with documentation and programmer notes from the development process;

20. In order to fully respond to the Interrogatories, SCO also requires complete disclosure by IBM of all of its contributions to Linux, including:
20.1 Verification of all programming patches it has contributed to Linux.

20.2 A description of all SMP or other multi-processor enhancements made to Linux by an IBM engineer, employees or contractors, together with the precise location in Linux that the enhancement was made, and the date thereof,

20.3 a written description of other enhancements to Linux made by IBM engineers that are not otherwise clearly documented in specific Linux patches,

20.4 Design documentation and programmer notes used by IBM engineers in making all contributions and enhancements to Linux.

21. Once access to the missing source code is granted, SCO will continue to analyze the code to determine improper contributions of UNIX code to Linux and any additional discovery that may be necessary. Given the volume of the expected disclosure by IBM [1], it is expected that SCO and its engineers and consultants will be able to provide further answers to IBM's interrogatories within 90 (ninety) days after the delivery of the missing versions of software and accompanying documentation and programmer notes related to the requested source code.

____[signature]_________
Ryan E. Tibbitts
General Counsel and Secretary
The SCO Group, Inc.


  


Declaration of Ryan E. Tibbitts | 786 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Motion to Dismiss?
Authored by: SkArcher on Wednesday, January 14 2004 @ 09:50 PM EST
If IBM don't feel this is enough (and it certainly doesn't look it), can they
ask the judge to kick it upstairs to the senior judge for the hearing of a
motion to dismiss, and if so how fast does that happen, and is SCOs discovery
likely to remain stalled in the meanwhile?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: rand on Wednesday, January 14 2004 @ 09:55 PM EST
Aw, Come On!

I must have missed the part of IBM's interrogatories where they ask for
AIX/Dynix code. And it's up to the outside directors to provide the answers?


---
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 | # ]

Tibbits reading from K McBride's notes.
Authored by: skidrash on Wednesday, January 14 2004 @ 10:00 PM EST
Tibbits Repeats almost the same arguments from Kevin McBride that Wells already
ruled against.

Cute.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:04 PM EST
What does the "[1]" in the last point refer to?

[ Reply to This | # ]

Whoops...
Authored by: the_flatlander on Wednesday, January 14 2004 @ 10:07 PM EST
Oh, and Frasier goes down!

S-U-M-M-A-R-Y J-U-D-G-E-M-E-N-T

Did I spell it right?

TFL

Kevin: You Honor we just know that IBM made improper contributions. If they'll
give us their code it with it we can prove they put our code in Linux.

[ Reply to This | # ]

broken record?
Authored by: brenda banks on Wednesday, January 14 2004 @ 10:10 PM EST
they are really a broken record?
instead of dealing with what they are supposed to be answering they are still
asking for their own discovery?
or am i missing something here?

---
br3n

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Bill The Cat on Wednesday, January 14 2004 @ 10:11 PM EST
6. If I was unable to reach a director in person, I left messages with both the director and his assistant. I explained the subject of the request and the urgency of the matter.
Having been on the executive staff of a major corporation and having worked with senior management for others, I know that the officers are like a brotherhood of sorts. We always knew how and where to get a hold of any of the others in case of any emergency. We had private cell phone numbers, phone numbers of immediate family and such. Due to the importance of this and the knowledge that this was coming, I find it extremely (read: impossible) difficult to believe this. This is a crock that he couldn't get a hold of anybody.
"14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).
This has no relevance as to what IBM requested. This is again going back to what SCO wants. SCO has repeatedly claimed in the press that they already have the case established. SCO doesn't need to get something from IBM to answer this. SCO needs to prove their case and this is just noise.
"15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.
Again, IBM is asking them to provide information that SCO already claims it has to prove its case. So, again, why does SCO require anything from IBM in order to answer the request?
"16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.
Same as before. This isn't necessary in order to provide IBM's request for information.
"17. In some additional cases it was also possible to infer with reasonable certainty from comments in the source code that the engineer who implemented that code had experience and knowledge of the methods, sequence and structures used in either or both of Dynix/ptx and AIX. Confirmation of this would require depositions from the IBM individuals involved in programming the actual Linux modules in question."
Not even addressing after the above.

---
Bill Catz

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: D. on Wednesday, January 14 2004 @ 10:14 PM EST
My, My, My.

MIT Mathemiticians? Spectral Analysis? Deep Diving?

Or, just maybe, good ol' diff?

And on the surface it would seem that SCOG hasn't identified with specifity, by
file name and line number(s) any "IP violations".

But of course, I'm just reading Mr. Tibbits' whine as to why the need more...

D.

(A plugged nickel says that the code mentioned in para. 12.1.5 is from Project
Monterey.)

---
"Litigation is a machine which you go into as a pig and come out as a
sausage.”

-- Ambrose Bierce (attrib.)

[ Reply to This | # ]

Para's 14,16 & 18
Authored by: stevem on Wednesday, January 14 2004 @ 10:14 PM EST
Are very interesting and I would disagree with the statements made by SCO here.
Unsure of the exact timeline; but I understand that the technologies in question
were implemented into Linux several years ago - and thus there is absolutely no
need for more recent versions of AIX. Is Dynix even still under improvement?

ie the older versions are more likely to have been the "illegal"
source of the code. Assuming SCO's theory is true of course.


Further para 18 and sub sections make no mention of SMP. They scream louder by
their omission. Whoopsie.


Stil in all, it's classic dirty arguing at it's best. Don't look at what
I've failed to do; Look rather at what my opponent has failed to do. And thus
we (try to) change the entire direction of the argument. "It's all IBM's
fault we can't be more specific".


- SteveM

[ Reply to This | # ]

Confused and Befuddled
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:14 PM EST
I thought that IBM had already given SCO the complete copies of AIX (released
versions) and that what SCO was asking for was the unreleased modifications that
may have been used with work on Linux.

I know that this is in the documents somewhere so this argument sure is
ridiculous if not an outright lie.

Interesting to see if IBM points this out to the Judge (grin).

[ Reply to This | # ]

"More recent versions"
Authored by: Lev on Wednesday, January 14 2004 @ 10:17 PM EST
They want a more recent version of DYNIX/ptx than 4.6.1??
I'm afraid they'll have to write one.
If I'm not mistaken, 4.6.1 was the last version ever.

[ Reply to This | # ]

Ryan's 16-18
Authored by: PM on Wednesday, January 14 2004 @ 10:18 PM EST
Presumably Ryan's assertions 16 to 18 are backed up with appropriate evidence
within those 60 pages and are not just wistful thinking on part of the
mysterious engineers and consultants.

It also presupposes that the SCO-IBM contract is indeed 'viral' with regard to
derived works.

If the outside directors are really concerned with their duties and
responsibilities as SCO directors, they would have dropped everything to comply
for SCO's sake, then given Darl a good boot up the backside for wrecking their
Christmas. They should also give Ryan a boot up the backside for not hitting
the panic button hard enough immediately after the 5 December hearing so they
could turn over the goods in time for 12 Jan. Which begs the question of how
well they are exercising their responsibilities to ALL stockholders (which is
what they get their handsome directors fees for), or are they just Canopy
lackeys.

[ Reply to This | # ]

  • Doesn't sound like it. - Authored by: Anonymous on Thursday, January 15 2004 @ 12:05 AM EST
    • Providence? - Authored by: pjcm on Thursday, January 15 2004 @ 04:00 AM EST
      • "provenance" - Authored by: Anonymous on Thursday, January 15 2004 @ 03:45 PM EST
  • Ryan's 16-18 - Authored by: Anonymous on Thursday, January 15 2004 @ 08:29 AM EST
  • Panic? What panic? - Authored by: DMF on Thursday, January 15 2004 @ 04:16 PM EST
Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:19 PM EST
So let me get this straight... SCO is claiming IP infringement for IP that
they do not hold, e.g. recent versions of AIX and DYNIX/ptx, and they
want the court to compell IBM to give them a copy so they can analyze
their own IP.

Does that sound as bizarre to you as it does to me?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: mhoyes on Wednesday, January 14 2004 @ 10:20 PM EST
This is an interesting read. From this, it appears that SCOG had and has no
evidence of any copying by IBM, but just the appearance of such. That the
"deep dive" into the source code appears to be a figment of someones
imagination, since, if it had been done, they would have been able to produce
said documents and meet the requirements of the order of Dec 12th better than
they have. They again appear to be arguing that the code IBM has produced in
AIX is part of SCO IP, even though SCO appears to not have said code as it was
created by other companies.

Then, to top it off, they end their declaration with the statement that
"we need the source so we can prove that they did copy the code".
This would seem to show that IBMs Lanham(sp?) charges are correct since SCOG
doesn't have any evidence of any code copying, just appearence. After the last
pieces the SCOG gave out showing "copying" and having it shown that
it was not, you might think they would try a different tact. Or maybe they
think that if they say something often enough, then people will start to believe
it.

Just some thoughts,
meh

PS: IANAL

[ Reply to This | # ]

Your Honor, here's the renewal of our Fishing License application
Authored by: Terry on Wednesday, January 14 2004 @ 10:21 PM EST
We all left for the holidays, but I managed to whip this up Monday afternoon for
you. Now, please, can you tell us what that word "specificity"
means....

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: bbaston on Wednesday, January 14 2004 @ 10:21 PM EST
Whoosh -- all the directors went to the hills for Christmas.

Did Tibits just document SCO unwillingness to comply? Did he just point out that
all the SCO senior management were given notice and time before submiting
information? Did he say again what was said by the other McBride in court -- IBM
should go first? Gaw-lee.

---
Ben B
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold,

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: cadfael on Wednesday, January 14 2004 @ 10:21 PM EST
Sorry to ask this if it is a repeat, especially since I do not pretend to
understand judicial procedure, but isn't #16 just a bit of waffling?
"Almost certainly" is not equitable with "that is copied from
us." What is the standard that must be borne for this sort of argument to
go forward?

[ Reply to This | # ]

The Worst According to PJ
Authored by: Weeble on Wednesday, January 14 2004 @ 10:22 PM EST
"That isn't the worst. The worst, according to my nonprogrammer's eyes,
is that SCO doesn't seem to identify with specificity much of anything. Forget
spectral analysis and MIT mathematicians. They looked on the internet at Linux
and compared it to the versions of AIX and Dynix they had lying around and infer
there could be some problems. However, they can't say for sure unless IBM turns
over more modern versions of AIX and Dynix/ptx! Isn't what you get from
this?"

I'm not much of a programmer (right now I couldn't program my way out of a wet
paper bag in dBase) but I'm in full agreement with you, PJ.

All their public posturing about "millions of lines of code" and the
"DNA of Linux coming from Unix" aside, I think he's saying
"we don't really know if we have a case, but we want to make sure."
IANAL, but methinks that's what you're supposed to do before you even file the
case! To launch a case based on vague suspicions and conjecture hoping to get
specifics to make it concrete in discovery is absolute lunacy. (Not like that
hasn't been observed here on many occasions :)

I hope Magistrate Wells got a set of barbells for Christmas. I think she's
going to need some good muscles to be able to throw the book at them,
considering how big, fat and heavy the book's going to be!

I wouldn't be surprised (but I'm not that hopeful) that she'll have the main
judge there at that hearing so that at the same time she can 1) throw the entire
SCO legal team and management team into jail for contempt of court (with fines
waiting when they get out), 2) throw SCO's case out on its ear, and 3) give IBM
everything they might imagine they want in her summary judgment on the
countersuit.

*SHEESH*!


---
"Every time I think I've heard it all from SCO, they come
up with a new howler." Steven Vaughan-Nichols, eWeek

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:23 PM EST
I love this part...

16. Our engineers have reached the conclusion that parts of Linux have
almost certainly been copied or derived from AIX or Dynix/ptx.

So they admit that they started a major lawsuit based on information
that they are guessing about.

Yeah, judge is going to love that.

[ Reply to This | # ]

Yee-Hah!
Authored by: overshoot on Wednesday, January 14 2004 @ 10:24 PM EST
Did I nail it or what?

See "Tibbitts affidavit" from SCO's "Notice of Compliance" Says They Have Not Yet Fully Complied. I'd post a more-specific link, but that's not how the site works.

[ Reply to This | # ]

Oh, Come On!
Authored by: bruzie on Wednesday, January 14 2004 @ 10:24 PM EST

So he reckons that they downloaded the source code for JFS from IBM's JFS project page (Para. 12.1.9). Obviously they did not decide to look at the FAQ (http://www-124.ibm.com/jfs /project/pub/faq.txt) where Question 1 is:

Q1: What is the history of the source based use for the port of JFS for Linux?

A1: IBM introduced its UNIX file system as the Journaled File System (JFS) with the initial release of AIX Version 3.1. This file system, now called JFS1 on AIX, has been the premier file system for AIX over the last 10 years and has been installed in millions of customer's AIX systems. In 1995, work began to enhance the file system to be more scalable and to support machines that had more than one processor. Another goal was to have a more portable file system, capable of running on multiple operating systems.

Historically, the JFS1 file system is very closely tied to the memory manager of AIX. This design is typical of a closed-source operating system, or a file system supporting only one operating system.

The new Journaled File System, on which the Linux port was based, was first shipped in OS/2 Warp Server for eBusiness in April, 1999, after several years of designing, coding, and testing. It also shipped with OS/2 Warp Client in October, 2000. In parallel to this effort, some of the JFS development team returned to the AIX Operating System Development Group in 1997 and started to move this new JFS source base to the AIX operating system. In May, 2001, a second journaled file system, Enhanced Journaled File System (JFS2), was made available for AIX 5L. In December of 1999, a snapshot of the original OS/2 JFS source was taken and work was begun to port JFS to Linux.

In a nutshell, IBM developed JFS1 in AIX, created a brand new JFS2 in OS/2, ported JFS2 to Linux, and then back ported into AIX.

In this case, IBM did not take the JFS code that was in AIX and put it into Linux, but the other way round.

But it doesn't matter, because it is clear that the only real issue in this case (SCOvIBM, not the counterclaim) is what IBM is allowed to do with the non-SysV code they have written (as discussed in the Novell letters).

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: jmr on Wednesday, January 14 2004 @ 10:32 PM EST
<blockquote>
8. Two of our directors were out of their offices and unavailable until the
beginning of this year. Until they returned, I was unable to speak directly with
them or with their respective assistants.
</blockquote>

<p>Whoa!! They couldn't even contact their own directors for a hmm
1/1-12/12 = <b>20 full days</b>??? I see many posibilities here:

<ol>
<li>TSG directors have such a wonderfull job that allow so many holidays
in a desert island.
<li>TSG directors have such a dreadfull job that they have to be tied to
their chairs and glued to their phones or they just run away.
<li>They cannot afford/produce mobile phones so they are waiting IBM to
provide some.
</ol>

<p>But seriously... I have been in management for quite some time and the
executives disponibility for urgent matters (such as court orders) is 24/7 or
very near... That statement is simply ridiculous.
<p>Is the court going to swallow this without a noise? (along with the
starting the 12th instead of 5th, and the expected yet unavoidable Xmas
<b>10 days</b> holidays) I suppose yes. So much for the US legal
system.

[ Reply to This | # ]

OT: What's likely next?
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:33 PM EST
PJ or any lawyer listening:

Since the Order to Compell was in the IBM countersuit part of the
procedure, what are the likely options to Her Honor if she finds SCO
failed to comply?

[ Reply to This | # ]

SCO is incompetent to analyze code
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:33 PM EST
Even if IBM turned over all the source code, SCO wouldn't know what to do with
it. Last summer's SCO Forum proves this.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: fava on Wednesday, January 14 2004 @ 10:34 PM EST
The side letter to to AT&T licence pretty much allows for
anything except direct copying from SysV. Nowhere in this
letter does SCO claim that anything was copied from SysV.
Only in SCO's warped definition of "derivative works" can
any of these things be considered an infringement.

I expect there will be a motion to dismiss soon based on
the fact that none of the things that SCO is alledging is
forbidden by the contract.

[ Reply to This | # ]

Before we all jump to conclusions...
Authored by: Lev on Wednesday, January 14 2004 @ 10:34 PM EST
Let's not forget that this declaration is NOT the supplementary answers. It's
those 60+ pages that we haven't seen that are supposed to "identify with
specificity," etc. I doubt they do, but we don't know it yet. The
declaration was supposed to document which answers are incomplete and why.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:39 PM EST
If this is the best they can come up with, then 1) IBM is going to get the NUMA
etc claims dismissed with the sales agreement. 2) The rest of SCO's claims
will be dismissed as unsupported. 3) SCO's whole case is going to be thrown
out, and 4) IBM's Lantham Act etc charges will get summary judgement.

In other words, it is all over, except for the formalities.

[ Reply to This | # ]

SCO just blew it off
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:39 PM EST
I hope the judge blows off SCO the way SCO has blown off the judge.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts [humor]
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:42 PM EST
Me thinks the General Counsel for SCOG takes his name too seriously. [I cannot
get my login to work, by handle is jdg]

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:43 PM EST

Why all this discussion from SCO on data structures and methods. I
don't recall this being a question of patent law -- it's a question of
contract and (sometimes) copyright law.

In fact, see http://www.groklaw.net/article.php?
story=20031108124035847:

"3.05  - Notwithstanding anything to the contrary, YOU shall have the
right to use residual information mentally retained by YOUR employees
who in the ordinary course of their work pursuant to this Agreement,
retain such information in non-tangible form after having access to
REFERENCE SOFTWARE PRODUCT, provided that such employees make no
deliberate attempt to preserve such information by reducing it to writing
or to otherwise memorialize such information contemporaneously. 
However, nothing in this paragraph shall affect SCO's rights under patent
or copyright laws."

It seems to me that there are three levels of proof here:

1. There is direct copying from SVRX to Linux. This would be a violation
of copyright and a violation of the IBM license. This is what SCO had
claimed, but seems to be now backing off of.

2. There is copying of methods from SVRX to Linux. If SCO owned any
patents on the methods, this would be a violation of patent law (but not
copyright, directly). SCO doesn't own any patents on methods, as far as
I'm aware. Failing patent law, there is a question of contract. The
burden of proof would be on SCO to show that IBM developers copied
from SVRX to Linux, and not:

3. There are methods in Linux that are also in SVRX, and were
contributed by IBM. There is not direct copying, though -- your
engineers just had "residual information mentally retained." The
burden
of proof is on SCO to prove what was in the engineers' minds -- whether
they copied or just happened to remember how SVRX did things. No IP
violation occurs, and no contract violation occurs unless SCO can prove
that there was direct copying.

It seems like a long, uphill battle to prove that similar methods were
directly copied, and not "residual information". If they have
direct
copying, that's one thing. If they're trying to prove similar methods, they
have a tough battle.


Further, say that IBM *did* copy methods from SVRX to Linux. What right
does SCO have to sue end-users? If IBM violated *copyright*, then there
in theory could be some exposure for end users until that copyrighted
material is removed. If IBM violated *patents*, end-users would have a
problem with the patented code. If IBM violated *contracts*, contracts
that were only between IBM and SCO, then it seems to me that there is
absolutely no* exposure for end-users. So where does SCO's licensing
program come in?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:48 PM EST
I am sorry. I don't get it. They start gathering stuff in January, 25 days
AFTER the court date. And they are supposed to have everything layed
out already for 6 month or so since they filed. If the judge is not going
to find them in contempt I am going to loose my last bit of hope in the
US justice system.

[ Reply to This | # ]

Original SCO Press Release Aug 13
Authored by: mac586 on Wednesday, January 14 2004 @ 10:55 PM EST
If you look back at the original press release from SCO when they terminated IBM's license, you find some juicy bits that will probably be in conflict with Tibbitt's amendment, and the 60+ pages filed.

"Sequent-IBM has nevertheless contributed approximately 148 files of direct Sequent UNIX code to the Linux 2.4 and 2.5 kernels, containing 168,276 lines of code. This Sequent code is critical NUMA and RCU multi-processor code previously lacking in Linux. Sequent-IBM has also contributed significant UNIX-based development methods to Linux in addition to the direct lines of code specified above. Through these Linux contributions, Sequent-IBM failed to treat Dynix as part of the original System V software, and exceeded the scope of permitted use under its UNIX System V contract with SCO."

The emphasis is mine. Direct copying is alleged, how did they know if they did not have the source? If it was direct copying, and they knew it August 13, why do they need additional source copies from IBM?

I can't wait to see what is declared in the 60+ pages, and see the IBM/community response to the allegations.

[ Reply to This | # ]

What does Didio have to say?
Authored by: Anonymous on Wednesday, January 14 2004 @ 10:56 PM EST
After all, she was the one who was going around, telling the world that she's
*seen* the source code side by side. You remember the code, don't you? The code
that was copied from SCO's Unix into Linux?

And yet now, it appears as though not even SCO's own General Counsel has seen
this code?

What's going on here? Was Didio lying? Was SCO lying to Didio? What happened to
the original code that they showed under the non-disclosure agreement and by so
doing, used to pump up their stock price?

Clearly, there's going to be no sign of it in this case. I do hope anyone who
bought SCO stock on the basis of this information calls for an investigation...

[ Reply to This | # ]

What about copying from Unix System V sources?
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:02 PM EST
I see a lot about similarities/copying between Linux and
AIX / DYNIX/ptx (IBM's property) but what about
similarites/copying between Linux and Unix System V
(SCO's purported property)? Where did they show
copying from System V sources into Linux? Where's
the beef?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: wharris on Wednesday, January 14 2004 @ 11:04 PM EST

That isn't the worst. The worst, according to my nonprogrammer's eyes, is that SCO doesn't seem to identify with specificity much of anything.

I haven't seen their 60-page reply, but certainly the declaration has a startling lack of evidence. SCO seems to have only two pieces of evidence for its case:

  1. An unnamed engineer (not under oath) told their lawyer he thought parts of Linux came from AIX.
  2. Some of the code that IBM contributed to Linux was originally created by IBM for a different IBM operating system. This violates SCO's intellectual property rights.
I have to wonder exactly what was said to "express the urgency" of the matter. I'm imagining a conversation:
Lawyer: Mr. Director, as you know the December 5th hearing in our $3Billion lawsuit against IBM went against us. We are now under court order to answer IBM's discovery requests. Our only chance of winning is to convince the judge to grant our motion to compel, which depends on us showing a good-faith effort at compliance. So I need access to your office and computer to search for memos.
Director: I'd love to help, but I'm taking a 10- day vacation this month, and have more urgent tasks for the other 21 days.

[ Reply to This | # ]

A scene I would love to see
Authored by: kbwojo on Wednesday, January 14 2004 @ 11:07 PM EST
Judge: So you are telling me you could not get in touch with some of your
Directors.

Kevin McBride: That is correct, they were busy on the internet finding out which
countries have no extradition laws, oopsy I meant they were on vacation.

Judge: Its also seems that you are still trying to tell me that you need to see
IBM's code to get some proof?

Kevin McBride: Proof, we don't need no stinking proof. What we lack in proof we
make up for with our allegations. As far as I am concerned our allegations are
good, so good in fact that I imagine you can rule in favor of SCO right now and
save everyone some time.

Judge: Mr. McBride this proceeding don't seem to be going to good for you at
this time. Do you have anything else to add at this time?

Kevin Mcbride: I have one final thing I want you to consider: this is
Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives
on the planet Endor.

[ Reply to This | # ]

And they are asking for NEW STUFF from IBM
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:07 PM EST
Not only do they want the source codes in SCO's motion to compel, and referred to in their interrogatories....

But SCO also want the court to tell IBM to produce source code that SCO have never previously asked for:

All versions of JFS, whether a part of AIX or not (including, but not limited to the AIX and OS/2 versions), together with documentation and programmer notes from the development process;

How do I know that SCO have never asked for this??? Answer - I've seen their interrogatories (in Exhibits etc) and in SCO's motion to compel, and discussed in letters relating to the motions...

To summarize:

SCO: We want IBM to produce every bit of source code that they've ever disclosed

IBM: That is too broad.

SCO: Okay, we limit our request to every bit of source code related to Linux, UNIX, Dynix and AIX

IBM: That is too broad, which particular bits of code are at issue?

SCO: It's not too broad. We want every iteration of Dynix and AIX. Oh, and we didn't ask earlier, but we want all the notes related to every iteration too.

Judge Wells: SCO, your request is too broad. Identify what code is at issue, and then IBM (and the court) can know if it is properly discoverable.

Ryan E. Tibbets (SCO): As well as every every iteration of Dynix and AIX --- all the notes related to AIX/Dynix --- and we also want OS/2 JFS -- and we also want all the notes related to OS/2 JFS

[ Reply to This | # ]

SCO is setting up an appeal
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:10 PM EST
SCO wants the judge to terminate the discovery process, despite SCO's abuses,
to create an appealable issue, namely the premature termination of discovery.

Once it loses in the appeals court, SCO will petition the U.S. Supreme Court.
All during this process, the press releases will continue.

If SCO can't use discovery and a trial, it will substitute the appeals process
to keep it all from being finalized.

SCO's goal is to hurt as many people as possible.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: sef on Wednesday, January 14 2004 @ 11:12 PM EST

Some comments on the declaration.

Paragraphs 14 through 16 say, "One or more programmer has looked at both sets of code, and sees some similarity, but we need a more up-to-date version to be sure of how much direct copying was done."

Paragraph 17 says, "The code wasn't identical, but he was using AIX or Dynix/ptx as a starting point, and therefore moved the methods, if not actual code, into Linux."

Paragraph 18.3 says, "The code isn't really the same, but it uses the same data structures, so it must have been from the AIX code base."

Paragraphs 18.4 and 18.5 say, "The code isn't really the same, but it was written by the same person, therefore we claim it is derivative of our code."

Now. As a programmer who has been following legal issues for a while, I'd say that pp. 14-16 makes some sense to me -- there's some similarity, they're worried, and they need to verify it. Assuming that what IBM did violated the contract, this would be a justifiable position for SCO to take: it looks like it, but they need to see some code history to be sure, as the similarities are not necessarily enough to be actionable.

I find paragraph 18.3 to be, at best, questionable, as data structure similarity is not enough to require any source code -- a lot of stuff is done up as white papers, which describe the layout and specifications, and it's possible that the Linux code was written from that. They are admitting they are on a fishing expedition with this one.

Paragraphs 18.4 and 18.5 are scary: "if you've ever looked at something that has ever been at all associated with our code, you can never work on anything else again without us owning it."

Nothing really in depth, but hopefully useful for some people.

[ Reply to This | # ]

specificity
Authored by: jtsteward on Wednesday, January 14 2004 @ 11:20 PM EST
n.

Something particularly fitted to a use or purpose.
A remedy intended for a particular ailment or disorder.

A distinguishing quality or attribute.
specifics Distinct items or details; particulars.

Now remember the code SCO is fighting over here was almost declared Public
Domain 10 years ago in the AT&T - BSD suit. If SCO ever does raise the
copyright issue with IBM SYSV may end up wide open anyway.

The methods have been in text books for at least 20 years. How can SCO say the
methods are protected? If it is that open how can it be a trade secret? Can't
patent it now, too old.

Ammendment X says whats yours is yours. RCU may be a little problem. It may
offset the 3 Billion IBM wins from SCO by about 50 bucks.

I was really hoping SCO would at least make this interesting, but all they have
is the same old drivel.

I am sure if PJ was working for SCO (and there was a case) there would be much
more than 60 pages, and she would have talked to all the directors.







---
-------------------------------------------------
Darl needs more bullets, he keeps hitting his foot but he won't go down

[ Reply to This | # ]

"Our Engineers"?
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:23 PM EST
They are having their regular software engineers looking over the confidential
information that is covered by the protective order?

Since IBM is not required to return their code to SCO, SCO should not be
allowing their engineers to look at the AIX and Dynix code.

This sure seems like a MAJOR whoops to me. Notthat the rest of the document
isn't enough to cause a few problems.

[ Reply to This | # ]

All together now...
Authored by: rand on Wednesday, January 14 2004 @ 11:24 PM EST
See if this can be sung to the tune of "I am the very model of a modern
major general":

1. I'm the top legal dog at SCOG.
2. And a member of the Board Of Directors.
3. I haven't been doing a very good job, but I am now.
4. We really didn't start gathering the info we were supposed to already have
until the Judge's order was signed. [note: in other words, he just admitted
that the court order WAS needed]
5. In the next week and a half I didn't speak to everybody I needed to. But I
did leave messages.
6. I told them it was really really important this time.
7. But some of them are hard to get hold of.
8. And their secretaries didn't forward my messages. Two people didn't even
return my calls. I had to wait another week and a half just to contact my peers
on the board.
9. Most of they waited until January to fork over the information.
10. My fellow directors just didn't take me seriously.
11. We're not finished yet, but we got most of the really important stuff done.

12. We tried, really we did. Here's what we examined:
12.1.1 a version of the kernel that was current when we started the lawsuit
12.1.2 a version that came out just before we started this lawsuit
12.1.3 a version that didn't exist before we started this lawsuit
12.1.4 a version that didn't exist before the Judge signed the court order
12.1.5 one version of AIX that IBM gave us
12.1.6 one version of Dynix/ptx that IBM gave us
12.1.7 and a whole bunch of publicly available stuff on the internet
...
14. We didn't find anything because the code IBM gave us is older than the code
they put in Linux [note: isn't that how it's supposed to work? Cause and
effect?]
15. Further, we can't find anything else.
16. But the evidence is there, as soon as IBM tells us where it is.
17. There are some comments that look similar.
[question: shouldn't SCOG's own Unix be in that list somewhere?]
18. We figured out:
18.1 RCU was copied from AIX
18.2 JFS was too
18.3. EVMS looks much like AIX Volume Management System, so it had to be copied
18.4. Ditto for AIO and some other stuff
18.5. IBM even let some people work on AIX and Linux! [like SCO/Caldera never
did *wink*wink*nudge*nudge*]
19. So here's what we need from IBM: [shopping list follows]
...
21. Give us everything we want and we'll try to get back to you. Real soon. We
promise. Say, 90 days, OK?


---
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 | # ]

Declaration of Ryan E. Tibbitts
Authored by: ctrawick on Wednesday, January 14 2004 @ 11:30 PM EST

SCO's complaining that the code IBM gave them is too old:

I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

IBM provided specific versions of AIX to them:

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

The 5.2 release of AIX is the latest version advertised on their web site. If you look at the first version of the 5.2 release notes, it's dated October 2002.

Does 16 months count as "several years old"? Is this stink what they call "SCO math"?

chris

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: BigDave on Wednesday, January 14 2004 @ 11:31 PM EST
It will be fun to hear them explain how their outside directors did not know
that there had been this order, you know, considering, that they are bleeping
directors of the company!

At every company that I have ever worked for, someone always knew how to get in
touch with all the directors for emergencies. There is no way that they only
have the one business number for each of them. They might have gotten away with
claiming one or two, but not a large batch of them.

[ Reply to This | # ]

There is no SYSV code in Linux
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:32 PM EST
Why are they complaining about old copies of Dynix/AIX. Shouldn't they be able
to find code in Linux that infringes their SYSV code?

Wasn't the court order to show what parts of their code was being infringed by
Linux? What they are saying is that they have rights over all AIX code, and
when they get there hands on it they will tell us which parts of AIX are in
Linux, not which parts of their SYSV code are.

So that's it... there is no SYSV code in linux at all, only some AIX features,
which for all we know could have been clean room implementations. The new
features certainly don't contain any SYSV code (as it would show up in the
kernel source), and obviously don't need any SYSV code to operate. How is this
derivative?

If I write a Linux kenel module that uses printk to print "hello
world", and then write a driver for some other OS that uses some other
method to print "hello world" is the driver of the second OS a
derivative work of the Linux kernel? They both do the same thing, and the linux
one was written first, but you can't tell me that driver for the second OS
couldn't have been writen with out the Linux kernel (unless you had a patent on
printing a text string from an operating system kernel :P).

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:33 PM EST
There never was a case.
What will the judge do to them for taking up the court's time in this fashion ?

[ Reply to This | # ]

Fishing expedition?
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:40 PM EST
Am I seeing this right? It looks like SCO is asking for information so that
they can go see if they can find anything. I thought they already knew for sure
there was code they considered infringing and that's why they brought the suit.
So how can they now be asking to see code to see if there is something they
don't like? Is this kind of strategy allowed? Or am I just hopelessly
ignorant of how these things work?

[ Reply to This | # ]

Am I reading #14 correctly
Authored by: Anonymous on Wednesday, January 14 2004 @ 11:56 PM EST
<blockquote><em>I have been informed by SCO's engineers and
consultants that since the only version of AIX source code that was
available for comparison purposes is several years old, and predates
most of IBM's contributions to Linux, it was not possible to directly
compare IBM's contributions to Linux with the most likely source of
those contributions, namely the missing versions of AIX (including the
most recent versions).</em></blockquote>

SCO seems to be asserting that the changes IBM made to AIX
<em>after</em> IBM made their contributions to the Linux kernel
involve putting AIX code into Linux.

<p>Pardon my French, but WTF?

[ Reply to This | # ]

  • Reverse ?? - Authored by: Terry on Thursday, January 15 2004 @ 12:20 AM EST
Maybe - plus important point for IBM lawyers
Authored by: Anonymous on Thursday, January 15 2004 @ 12:07 AM EST
Maybe DiDio is giving advice to SCO. After all, according to her, it was a toss
of the coin on Dec 5, and on Jan 23, the judge might IBM to cough up
"IBM's evidence". Seriously:

I suspect she has seen something else too -- as she said she saw the same
comments in Sys V and Linux, including humor/jokes. There is no humor in the
SCO forum examples (except the unintentional kind on the part of the presenter)


Looking over past statements:

Byte - sounds like they saw the ate_alloc thing

The German guy who didn't sign the NDA by accident - sounds like he saw the BPF
thing. Check the comment about switch statements he made.

Ian Lance Taylor - it could have been the malloc thing, his description is
vague, but it sounds he says the code is on the internet, so it could be

Bill Claybrook - no idea what he saw, guessing ate_alloc

IMPORTANT POINT ON CLAYBROOK:

He saws he was shown code that was copied from Sys V into Linux by a vendor
other than IBM. (Presumably ate_alloc)

He then says he asked if SCO had evidence of direct copying from Sys V by IBM.
SCO told him no at the time.

Later they phoned him, and said they had misspoken - and SCO did have evidence
of direct copying by IBM.

In June articles (at least two), he remarks on the oddity of this.

[ Reply to This | # ]

  • Humor - Authored by: jtsteward on Thursday, January 15 2004 @ 12:21 AM EST
Tibbitts / Indemnification / Lineo
Authored by: Anonymous on Thursday, January 15 2004 @ 12:16 AM EST
Here is apparently what Ryan E. Tibbitts previously offered as INDEMNIFICATION
for potential Linux Copyright, trademark, and patent violations while at
Lineo... interesting. Perhaps this could be used in the end, to show that they
knew it was frivolous all along...

http://www.groklaw.net/comment.php?mode=display&sid=20040105234033532&ti
tle=Tibbitts+previously+offered+indemnification+%21%21&type=article&orde
r=&pid=47781

[ Reply to This | # ]

12.1.5 IBM AIX source code, an old version labeled MERCED/9922A_43NIA
Authored by: The Mad Hatter r on Thursday, January 15 2004 @ 12:23 AM EST


Hum, the version of AIX that they have is from 1999, it's for a Merced
processor. In plain terms Merced was the first version of Intel's IA64 family,
called Itanium or Itanic.

IA64 chips are not backward compatible with X86 chips, the instruction set is
totally different. Also Itanium chips support large amounts of memory - far more
than the 2GB that 32 bit processors like the Pentium series can support.

In simple terms this is a bit of an odd chip, meant for servers, and not
mainstream desktops. I think that Intel only sells 100K per year or so, as
compared to 50,000,000 plus pentiums. While the disk access software would be
simular to what's used on a Pentium, most of the Kernal for it would have to be
very different indeed.

Of course Project Monterey was all about the Itaniums...

Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

Insider trades in the last six months
Authored by: kenwagers on Thursday, January 15 2004 @ 12:30 AM EST

I was reviewing the Yahoo! financial pages, and looked at the Insider trading transactions. Thought eveyone might be interested in a summary of the sales from 6/20/2003 through 1/7/2004:

Title.......Name................Shares Sold....Proceeds
-------- ------------------ ----------- -----------
CFO.........BENCH, ROBERT...........34,600...$2,779,184
SVP.........BROUGHTON, REGINALD....120,000..$13,907,224
VP..........GASPARRO, LARRY.........31,640...$4,772,233
VP..........HUNSAKER, JEFF..........30,000...$3,050,008
Controller..OLSON, MICHAEL..........60,000...$9,030,011
Director....RAIMONDI, THOMAS........11,841.....$210,189
Director....THOMPSON, DUFF..........20,000...$1,916,861
SVP.........WILSON, MICHAEL.........12,000...$1,290,004


Total..............................320,081..$36,955,714

I guess we know which stockholders are benefiting from their litigation. Gee, they are doing even better than the attorneys!

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Thursday, January 15 2004 @ 12:30 AM EST
Good question. Try looking at this.

http://sources.redhat.com/ml/bug-glibc/2000-03/msg00115.html

[ Reply to This | # ]

I'M MELTING!!!
Authored by: Anonymous on Thursday, January 15 2004 @ 12:46 AM EST
Along with "Bronco" Darl, I believe some current SCO software engineers were part of the original machinations of this lawsuit. These idiots engineers probably truly believed they were on to something when they came across code in Linux that looked like UNIX code. We all know it took only a few hours for the OSS community to discredit their fine "detective" work.

Now they have McBride, Sontag, Stowell, and the lawyer team breathing down their neck, asking, "I thought you engineers told us there was UNIX code in Linux? Where is it?!?!"

The response from the idiots engineers at SCO? "We think it's there, but we need AIX and Dynix to prove it!"

If I were Darl, the FIRST thing I would do tomorrow is:

1) Issue a public apology to the world
2) Offer a settlement to IBM
3) Apologize to his kids for embarrasing them
4) Fire all current idiots engineers

It's either do an about face now, or, in the famous words of the Wicked Witch of the West, "[..] I'M MELTING!, I'M MELTING!!! AAAGGHHHHH!! [..]"

[ Reply to This | # ]

Does SCO want to win?
Authored by: error27 on Thursday, January 15 2004 @ 01:01 AM EST
On Christmas Eve, I was sick but I still went to work and even though I only
remember the day foggily, I remember I kicked butt that day. The next week was
laid back, but on Christmas Eve I needed to be there and I needed to work fast
and hard.

If someone stole my code, I wouldn't stop before I made them pay. And I would
work until my hands bled if I was going to make $3 billion dollars.

You would think that SCO would do anything to win this lawsuit. If it meant
working overtime that's OK. If it meant scrambling that's Ok.

Imagine the judge was a customer who purchased the evidence. As a customer,
this declaration would piss me off. I don't want to hear excuses and I
especially don't want to hear bad excuses.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: blacklight on Thursday, January 15 2004 @ 01:02 AM EST
I note the apparent lack of logical consistency between the points made in 14
and 15 that evidence is lacking and the breathless conclusions reached in 16, 17
and 18. How did the SCO Group jump from the premises in 14 and 15 to the
conclusions in 16, 17 and 18?

Further, given the assertiveness of the tone of 16, I find it reasonable to
conclude that whatever evidence the SCO Group has in hand at this point is
enough to sustain it through the trial given the "preponderance of
evidence" standard of civil suits, and there is simply no point in asking
for more evidence plus the 90 days to process it.

I regret to say that at this point that it is not apparent to me that the SCO
Group has made any kind of a good faith effort to comply with the magistrate
judge's orders. Further, I suspect that the SCO Group's litany of excuses is
designed to distract the Court from the fact that the SCO Group is: (a) simply
not complying; and (b) insists on its fishing expedition under the guise of
trying to comply.

One more point: the SCO Group's lack of time excuse to the Court stands in
contrast with the press announcement that the SCO Group is getting ready to sue
corporate end users not just in the United States but worldwide. In other words,
the SCO Group had time for activity B, but not for activity A. Playing the
magistrate judge for a fool?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: wharris on Thursday, January 15 2004 @ 01:23 AM EST

I'm sorry, I just can't help myself. Here is my paraphrase (parody?) of the declaration, with apologies in advance for my atrocious spelling:

1-11 I tried to convince the directors to provide court- ordered evidence in our $3Billion case against IBM, but I didn't start until a week after the hearing and the directors decided to take a 10-day vacation so we didn't really collect any evidence until just a few days before the deadline. And of course I didn't want to give anything to IBM without screening it first, and anyway we did the best we could and it's not that important anyway.

12-13 SCO has made its best effort to answer IBM's questions as completely as possible. We looked at a wide variety of sources in considering our accusation of IBM, and I'd like the court to just gaze in awe at the repository of knowledge that SCO had access to. Really, our engineers and outside consultants have scoured the internet for hours gathering evidence for our case, and we even gave IBM's Dynx operating system (given to us under protective order) to our engineers to learn what they could from it. And I'd like to repeat and emphasize that IBM has made many contributions to Linux.

14 We can't find any evidence that IBM copied code from the version of AIX that we have. However, the voices in my head tell me that if we had every copy of AIX ever written we would be able to prove something.

15-16 Although we haven't found any evidence of copying from the version of Dynix that we have, our unnamed engineers are positive (but not enough to swear to it), that IBM copied code from a DIFFERERENT Dynix operating system.

17 We can tell that IBM's Linux programmers are knowlegeable and experienced. We want to cross-examine them.

18 We would like to remind the court of the crux of our case: IBM donated code into Linux which was written by IBM, copyright by IBM, patented by IBM, and designed for an IBM operating system. This violated our intellectual property rights even though we have never seen the code in question nor requested nor paid for its development.

19 We ask the court to order IBM to provide us with every piece of code it has ever written, to teach us how to use the LKML archives to find out what code they contributed to Linux, as well as all hardwardware designs, engineering notes, or for that matter every piece of paper in their whole company.

20 By the way, may we have another 90-day delay?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Thursday, January 15 2004 @ 01:24 AM EST
Now that SCO is saying that they are not filing any copyright infringement
claims against IBM, wouldn't it make it a little easier for RedHat to win the
declaratory judgement against SCO ?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: blacklight on Thursday, January 15 2004 @ 01:29 AM EST
Further, I regard the assertive statements in 16, 17 and 18 which I summarize as "We are almost certain, but we need those materials from IBM to confirm ..." as an implicit admission that the SCO Group's current evidence base is very weak. The SCO Group was not going to say "We accuse IBM of misbehaving and we are suing IBM so that we get the proofs we need to substantiate our allegations ...", which would be an explicit admission that its current evidence base is very weak and which would be closer to the truth.

[ Reply to This | # ]

Plays right into IBM's hands. Watch.
Authored by: Anonymous on Thursday, January 15 2004 @ 01:31 AM EST
I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

Why did they just fall into IBM's logical trap? Observe.

"We got a copy of AIX that is a bit before these improvement started showing up in Linux." What does that mean? Well, it obviously wasn't System V code then, was it? So then IBM will say that it was their improvement on top of System V that, worst case, made it into Linux. And since it was their improvement, they own it. If you would have found the SMP code in that early version, they you could have claimed it was System V technology and not standard operating system technology.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Maserati on Thursday, January 15 2004 @ 01:31 AM EST
5. Apparently between the 5th and 24th of December he managed to NOT speak with
all of the outside directors. The board of directors isn't returning the calls
of their general counsel when there's just been a hearing in a lawsuit worth $3
billion ? What is up with that ? No, you can reach the BoD during vacation, it
just had better be important.

[ Reply to This | # ]

sorry if this is a duplicate...
Authored by: Anonymous on Thursday, January 15 2004 @ 01:38 AM EST
but I gotta get up for work and these statements are just outright
infuriating... their engineers can conclude that code was copied, yet they cant
make a copy of a cd???? (from we were only supplied 1) WTF????????? Some
engineers they have... to think they probobly make more than me (a rather
unwilling win2k/exchange admin {paying job is a paying job, plus I get to work
on converting people}- although my web server is a Linux box). If the execs dont
get nailed for fraud etc is it possible to press charges for criminal stupidity?

[ Reply to This | # ]

The real issue
Authored by: Utah on Thursday, January 15 2004 @ 01:39 AM EST
It seems to me that SCO is focusing on the question of whether AIX and Dynix code, methods, etc. have been contributed to Linux. In doing so, they divert the judge's attention from the real issue, which is the question of whether IBM's use of its own code is any business of SCO's.

[ Reply to This | # ]

IBM did turn over the most recent version of AIX
Authored by: markus on Thursday, January 15 2004 @ 01:41 AM EST

The following SCO statement is wrong:

"14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

According to our records IBM turned over the source code of AIX 4.3.3 (a couple of years old) and AIX 5.2 (the latest version of AIX). The only version missing is AIX 5.1 and fixes and maintenance levels.

Markus

---
Markus Baertschi, Switzerland

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: docolczyk on Thursday, January 15 2004 @ 01:49 AM EST
Assertions 14 and on quote some mysterious SCO engineers.
Not having seen the 60 pages yet, I believe that IBM
would be smart to come back to court with a request
to get the names of these engineers, their employment
history at SCO ( job titles, promotions, evaluations etc ),
credentials qualifying them as expert witnesses, sworn affidavits from these
experts saying that they indeed
agree with some of the points.

[ As well SCO should be required to provide more details,
but IBM has already askled for that, and the judge has
granted that request. ]

Any point where SCO fails to provide such documention
should be stricken with the only notation that SCO
made an unsubtantiated claim.

[ Reply to This | # ]

Huh?
Authored by: OK on Thursday, January 15 2004 @ 01:51 AM EST
18.3. The "Enterprise Volume Management System (EVMS) contributed to Linux by IBM is based on the same architecture and data structures as are present in the AIX Volume Management System, and was therefore copied from AIX.

Who is he kidding? If architecture and data structures are the same it does not neccessarily mean that IMPLEMENTATION is the same, much less that anything in that implementation has been copied.

[ Reply to This | # ]

  • Huh? - Authored by: Anonymous on Thursday, January 15 2004 @ 08:57 AM EST
ibm lawyers...
Authored by: koa on Thursday, January 15 2004 @ 01:56 AM EST
Those IBM lawyers must be pretty happy right about now. SCO is making it too
easy for them..

Its gotta be like a second new years party for them.




---
...move along...nothing to see here...

[ Reply to This | # ]

How do you like your SCOX? Rare or Well Done?
Authored by: penfold on Thursday, January 15 2004 @ 01:59 AM EST
You know, this document reminds me of the scene from "My Cousin
Vinny" where the judge wants a plea and "Vinny" keeps arguing
his case. ("Again, the communication process has broken down...") I
really hope IBM and the court make it painfully clear that excuses are not
responses.

But here is the kicker for me. AT&T code was licensed to IBM, IBM took that
code and made their AIX derivative. IBM then took out AT&T code and
contributed their IBM code to linux.

SCOX has an older (pre-linux contribution) version of AIX and they apparently
CAN'T FIND THE VIOLATIONS! What do they expect to find? IBM put (older)
AT&T code in a newer version of AIX and then dumped it into Linux?

Presumably, SCOX has all versions of AT&T unix that IBM has access to. They
should be able to compare this the version of AIX they have and find the
AT&T code. (We won't get into any BSD code right now.) Find that code in
Linux and they FINALLY have something to offer in support of the case. It would
be harder for the methods and concept argument, but then again they have had 10
months since they first filed the suit to do this. (Which should have been done
to file the suit in the first place!)

I hope IBM uses this on the 23rd to start the argument on SCOX's definition of
derivative works. Assuming they can get some hearings to put that puppy to bed,
it should set the tone and scope for discovery.

Given that IBM and Novell were directly involved in the negotiations, I do not
see it particulary difficult to prove IBM code is IBM's and they can do what
they please with it. Winning that, SCOX should be effectively squished.

---
Blood from a turnip? That's easy! Try getting SCOX to produce evidence!

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: ile on Thursday, January 15 2004 @ 02:13 AM EST
If ever one of my students came up with such a set of lame
excuses for not handing in some set problems, failing the
course would be the least of that student's problems.

However, I very much doubt that the magistrate will give
SCO the rap. What a shame

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Thursday, January 15 2004 @ 02:16 AM EST
Maybe IBM could give SCO a full copy of new versions of dynix under a Non
Disclosure Agreement, and then sue them in case they infringe such agreement.

[ Reply to This | # ]

  • NDA? - Authored by: Kevin on Thursday, January 15 2004 @ 10:50 AM EST
Declaration of Ryan E. Tibbitts
Authored by: Mark_Edwards on Thursday, January 15 2004 @ 02:24 AM EST
Is this a joke?

IBM are going the slaughter SCO with this. SCO are
basically admitting that they don't have a clue what IBM
have done?!?

The 23rd of Jan is going to be a very very very
interesting day! I hope people will be going to take
notes?

Mark

[ Reply to This | # ]

Missing Officers - Why?
Authored by: maco on Thursday, January 15 2004 @ 02:37 AM EST
I think the reason officers were not found is to delay (and/or forget)
"all public presentations..." - this is the smoking gun for IBM's
counter suit and the words IBM wants to put into SCO's mouths in IBM's
arguments. Lay even money this shows up (threadbare and half-hearted) less than
a week before the 23rd, hopefully (yea, sure) not giving IBM enough time to
document its incompleteness.

[ Reply to This | # ]

Attention JOURNALISTS
Authored by: Anonymous on Thursday, January 15 2004 @ 02:53 AM EST
Journalists here is a question to ask Darl or Blake or Sontag next time you talk
to them...

At SCOforum, SCO claimed millions of lines in infringing code, and gave specific
numbers of lines relating to JFS (etc). You will find this was widely reported
in August in CNET and elsewhere.

Here is the slide show they showed at SCOforum (converted to web format)
http://brucep.webfarmhosting.com/VegasSlideShow/frame.htm

Go to slide 20, they say they know of the following infringement (if you have
any doubt this is what they said, check the press reports of Darl's and Chris
Sontag's speeches - although I think they may have given different numbers)

JFS
·44 Files
·32,224 Lines <-- note the exactness


In Ryan E. Tibbitts affidavit he says they don't know where JFS was copied
from, etc.


Feel free to repeat this question for other things identified in slide 20 that
SCO says they are not sure about in the above affidavit.

What is SCO's explanation?

[ Reply to This | # ]

Is this surprising?
Authored by: fb on Thursday, January 15 2004 @ 02:57 AM EST

What's the surprise here?

The characterization of "pump'n'squeeze" (as distinct from pump'n'dump) that appeared on Slashdot recently was explanation enough. The only aim is to run out the clock while insiders and cronies cash out their scheduled sales.

Anything will do for that purpose, including the submission of napkin doodles. Up to a point, anyway. But that point is still pretty far away, given the speed at which the legal system operates.

[ Reply to This | # ]

nothing to worry about here
Authored by: unsubtle on Thursday, January 15 2004 @ 03:13 AM EST
i think this falls into 2 parts.

points 4-11: excuses for missing the deadline with info from outide directors.

    maybe their slackness will annoy the judge. but i doubt if she'll take any official action against them. and the case certainly won't get thrown out on account of this.

    probably they'll finish this part of the discovery before the hearing on 23 january - if only to avoid annoying the judge more than they already have. so they get at most another week or so delay, or make it harder for IBM to prepare for the 23rd; but it's not too big a deal.

points 12-21: this is just re-arguing the "who goes first?" issue, which was decided against them (on solid legal grounds) on 5 december: 100% irrelevant.

    judge wells will just ignore this.

    incidentally, they throw in some dubious/wrong statements of fact and legal theories (and even, as has been pointed out, ask to see OS/2 JFS code), but this has no bearing on whether they've complied (or why they haven't complied) with the order compelling discovery.

    notice that they do not ask for more time sift through the evidence they already have before complying with the order: it's all about how much better they could do if IBM had to go first - which they don't.

so it'll come to what the 60+ pages say. if, when required to be specific, they have no allegations about trade secret and disclosure of confidential information, then IBM is in a position to ask for at least large parts of SCO/Caldera's claims to be struck out (gutting their case), or even for dismissal.

if they're still being vague in the 60+ pages (i'd bet on this), then i don't know if the court will just say "that's as good as nothing, so i'll treat it as nothing"; or if they'll get maybe another month to make specific (and this time we really mean it) allegations. either way, their time seems to be running out.

pretty happy with how this is going. i don't expect to have to wait for the trial.

IANAL. IANAparalegal. IAAprogrammer.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Thursday, January 15 2004 @ 03:23 AM EST
I'm sorry, what's an "undesigned authority"

[ Reply to This | # ]

The plan all along
Authored by: fb on Thursday, January 15 2004 @ 04:01 AM EST

None of this discovery nonsense is unforeseen, by Darl's own words:

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

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

Is IBM agreeable to this process? Does it have to be?
In a legal setting it doesn't have a choice. In discovery you get to go in and investigate the things that relate to the case, and there are a broad range of things that relate to Linux and AIX. We will be going in with a fine-toothed comb and coming up with every detail...

...and, out of order:

The way IBM is responding is very interesting. They haven't filed for an injunction; they haven't filed for the summary judgement enforcement to be dismissed.

Comment. SCO was looking forward to discovery as an opportunity to go in and do their real research all along. Or else, perhaps, that was part of their original pressure strategy against IBM. Probably their only strategy, from the looks of it.

Another comment. Why hasn't IBM filed for a summary judgement, or why won't they? Perhaps because it's not in their interests to cut this thing short, although the reasons may have mutated as events have unfolded.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Thursday, January 15 2004 @ 04:03 AM EST
If I held the position of General Counsel and Secretary to the Board of
Directors at a company involved in a $3B lawsuit and couldn't get hold of them
at a critical moment I would start asking myself how soon I could get out of the
country. I'm obviously being set up as one of the fall guys for when this
thing hits the fan.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: eamacnaghten on Thursday, January 15 2004 @ 04:18 AM EST
I think IBM will let this "Cannot-contact-the-directors" thing go if
they get prompt response for that.

As for the rest - WOW!

Did the judge not say other discovery was on hold until SCO told IBM EXACTLY
what the fuss was about? SCO must be DESPARATE!! I do not think this will be to
SCO's favour on the 23rd...

[ Reply to This | # ]

OT: Motivations and connections
Authored by: dht on Thursday, January 15 2004 @ 04:32 AM EST
I have been following the discussions off and on, and a series of thoughts keep
flitting through the back of my mind. Motivations. I offer the following tidbits
for thought and discussion..

For many years Microsoft considered IBM it's biggest threat. In many ways it
still does, and as recently as 2001 Bill Gates stated his belief that IBM was
still Microsoft's "biggest threat" - this was well after the death
of OS/2.

Linux (and GPL licenced code) is now a rising threat to Microsoft desktop
dominance/monopoly and the only real competition in the small/medium
(non-mainframe) server operating system arena. Bill Gates and Steve Ballmer have
both publicly stated that they are opposed to the GPL on many grounds.

When David Boies questioned Bill Gates during his deposition in the DOJ case,
he made Gates look so bad that the DOJ never even called him as a witness, they
just showed videotape from the deposition. (Aside: I remember seeing portions of
these videotapes. SCO's current behaviour somehow reminds me of those
segments).

We have seen very little of Boies in the actual legal proceedings involved in
the SCO debacle. He may be working in the background, but his primary function
seems to be a PR play on the part of SCO.

Mysterious investors assist SCO's legal bankroll (through various fronts) with
an investment that doesn't seem to make a lot of sense from a purely financial
angle.

Now consider... Regardless of the motivations of Darl and Company, it seems to
be a "nice" coincidence that 3 of the "players" involved
are all "enemies" of Microsoft and/or it's largest stockholder.

Far be it from me to suggest or accuse anyone of manipulation or wrongdoing,
but I can't help but notice the connections - and the way things are playing
out..


[ Reply to This | # ]

It does make sense
Authored by: alasmi on Thursday, January 15 2004 @ 05:05 AM EST
Asking for more AIX and Dynix/ptx source code before being able to more fully
comply with the discovery request does make sense. At least it does if you
assume that SCO are correct when they think that they have some rights on any
code which has been added to a deriviative of SYSV and should, therefore, be
treated as part of the original codebase.

SCO can look at the Linux code and see what was contributed by IBM. But what
they don't know is, which of the many lines of code contributed by IBM is also
in AIX or Dynix/ptx. Some of it may be new code that has never been in AIX or
Dynix/ptx. SCO wouldn't want to claim code that they had no rights to.

So until SCO have seen all of the AIX and Dynix/ptx source they cannot
"identify with specificity" what code in Linux they claim rights
to.

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts / How to Interpret ?
Authored by: Anonymous on Thursday, January 15 2004 @ 05:22 AM EST
I do not know how to interpret this declaration. To me it appears that it is a
statement to the effect that they can not provide any specifics to support their
allegations. I suppose that they did not intend to make such statement.
However, the Tibbitts declaration is so stupid that I fear that the show will be
over too soon; it is much more enjoyable than any soap opera on TV (thanks to
GROKLAW).

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: TerryL on Thursday, January 15 2004 @ 05:55 AM EST
Hi PJ and Groklaw'ists everywhere, I'm sitting here mulling over all I've read so far in light of the latest titbit, the "Declaration of Ryan E. Tibbitts". Excuse me maybe being slow and confused and senile but this whole saga seems extremely convoluted and has had people dashing off in all directions, so I just want to get things as straight and clear in my mind as I can.

So, does it, at the end of the day, all come down to simply the interpretation (or maybe re-interpretation) of the licence (plus letters of clarification) that IBM obtained from AT&T for Unix? All this stuff about copyrights and trade secrets and patents turns out to be a smoke screen, (intensional or otherwise).

At the end of the day it's just that...

Caldera/SCO (c/SCO from here on) interpret (or seeks to re-interpret) the terms and conditions as saying that anything that IBM ever add to the AT&T code (to improve or enhance it) immediately comes under the same non-disclosure rules as the AT&T code and IBM are not allowed to use it (all their own work or work they have rights to) anywhere else?

So yes, lines and lines of code have been copied (or similar lines expressing the same concepts, methods etc.) have been put into Linux by IBM and yes, it is all IBM's own work BUT they also put it into AIX which contains the AT&T code and so, according to c/SCO's interpretation, IBM are not allowed to use it anywhere but in AIX.

What that means for anything IBM moved from their other operating systems that may have had it first I'm not sure - maybe they were supposed to remove it from the other opperating system. Come to think of it, OS/2 or OS/2 Warp or whatever, did anything from that end up in AIX and Linux? What's the position then as OS/2 has MS in it's ugly past somewhere. Damn it, I'm getting side-tracked again.

IBM (and it seems Novell, who bought Unix from AT&T and so should know about the licences) interpret the terms and conditions differently. They say yes, it says we can't show the derived work (AT&T code + additions) because it's covered by the non-disclosure rules on the AT&T bits, BUT the letter of clarification says we are perfectly at liberty to do what we like with our own bits. We can put them in other stuff just so long as there's none of the AT&T stuff attached to it.

As a normal human (well, close) I must say that the IBM/Novell interpretation of what bits of the licence + clarification I've seen on here seems the most reasonable. Why would any company (never mind one with legal brains of IBM) agree that they can't use their own developments any way they want to? And the letter of clarification seems to show that they thought so too and saw the problem at the time they bought the licence for Unix from AT&T.

Now I guess c/SCO are really trying after all this time to re-read the licence in their favour (and I'll let everyone chose their own reasons why, they may honestly think their reading is right) BUT then we get to the questions of do they have the right to question it and the whole what did Original SCO (o/SCO from now on) buy from Novell and what was it that c/SCO then bought/inherited or otherwise aquire from o/SCO.

1) c/SCO v IBM is about what the licence says happens to IBM original works or owned work that are added to the code they licenced from AT&T.

2) Novell v c/SCO (not a court case yet, but a dispute that looks to be heading that way) is about whether c/SCO is authorised to do this anyway, (among other things).

3) How does the o/SCO to c/SCO change affect things.

QUESTION 1: Is the current court able to examine and rule on which interpretation of the IBM licence is correct or is this something for a different, specialist legal channel?

QUESTION 2: Does the c/SCO v IBM case have to await the outcome of the Novell v c/SCO to be sorted to decide if it's even worth examining the IBM licence?

QUESTION 3: Is this the actual plan, to have a tangle of legal cases, each inter-related to others to such a degree that it takes years to sort out OR someone does an Alexander the Great and cuts through the knot and says "Sorted!"? If that happens who's going to be winners and who losers?

Enough for now, my brain hurts again, but if c/SCO somehow manage to muddle through and get the licence re-interpreted in the way they want this would be, as I think they've somewhere claimed, a ground-breaking bit of legal work opening up all sorts opportunities for companies to take control of other peoples original work.

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

[ Reply to This | # ]

OT: Get the ahem 'Facts'
Authored by: Anonymous on Thursday, January 15 2004 @ 06:27 AM EST
Great eWeek article on Microsofts "Get the Facts" campaign.
Apologies if someone's already posted it
http://www.eweek.com/article2/0,4149,1426514,00.asp

[ Reply to This | # ]

Directors unavailable? Sure! 3 billion reasons I don't believe him.
Authored by: Tsu Dho Nimh on Thursday, January 15 2004 @ 06:50 AM EST
Oh good GRIEF! With a THREE BILLION DOLLAR lawsuit on the line, he expects her
to believe these guys not only took the time from mid-Dec through Jan 2 or so
off, but they could not be tracked down, and/or were unwilling to break off
their golf games long enough to open the ir offices and retrieve documents?

And with that same THREE BILLION DOLLARS on the line, SCO waited until the 12th
to start collecting answers to discovery?

6. If I was unable to reach a director in person, I left messages with both the
director and his assistant. I explained the subject of the request and the
urgency of the matter.

7. Our outside directors are located in Utah, Florida, and California.

8. Two of our directors were out of their offices and unavailable until the
beginning of this year. Until they returned, I was unable to speak directly with
them or with their respective assistants.

9. While we began to receive information from some directors during the last
week of December, 2003, most of the information has been forwarded to me between
January 5 and January 10, 2004.

10. In light of the traditional holiday hiatus from work, and the unavailability
of some of those directors during the holidays, I undertook the best reasonable
efforts to gather information responsive to IBM's requests from SCO's outside
directors prior to this Court's deadline of January 12, 2004.

[ Reply to This | # ]

If I was Judge Wells..........
Authored by: Anonymous on Thursday, January 15 2004 @ 07:19 AM EST
[assuming the '60+ pages' is also deficient and lacks specifity.]

I would openly criticise their response.

Warn them that they are at risk of having some of their claims in this case, or
the entire case - being dismissed.

Remind them that IBM will not be forced into discovery until sco's discovery,
as ordered, is complete or at least almost complete.

Give them a further 14 days.

If IBM made representations about gagging SCO, I would consider ordering both
parties not to make any public statement, interview or opinions on the case
without court approval, until having ruled at next meeting.

This would be most fair, I feel.


What would you do?

remember judges have to be seen as fair so no....
"Off with their heads!" or "Burn 'em!"


[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: vonbrand on Thursday, January 15 2004 @ 07:30 AM EST
They are again trying to spin on the idea that "everything IBM/Sequent/whoever developed on their own is ours", that is the only explanation for groveling around in RCU, JFS, and such. Again, new versions of AIX and Dynix, and their development history, are only useful to ascertain if something developed by others (IBM, Sequent) did somehow find its way into Linux. The "All That Ever Touched Unix Is Our Preciousss" (ATETUIOP) theory all over again...

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: TerryL on Thursday, January 15 2004 @ 07:38 AM EST
Hmmm, I seem to be ina mulling mood today...

I've head the term "suicide by police" used when disturbed people who can't quite bring themselves to commit suicide deliberately go out and threaten people with guns knives cars whatever in the hope that the police will do the deed for them (here in the UK they have to do something that will bring out the armed response units so it's a bit harder to arrange but less hard than it was).

Anyway, I was just wondering if we are all watching the unfolding of a case of "corporate suicide by judge".

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

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: tintak on Thursday, January 15 2004 @ 08:23 AM EST
Is Ryan E. Tibbitts a real person?
Or is it just an anagram of "barest bit tiny". This phrase
does seem to be suspiciously apt with regard the evidence coming from SCO.

---
What shape should a weathervane be?

[ Reply to This | # ]

Can they get them licenses?
Authored by: photocrimes on Thursday, January 15 2004 @ 08:23 AM EST
I found this interesting. First time I have seen a SCO PR-Newswire release that
came with a disclaimer ;-)

http://biz.yahoo.com/prnews/040115/lath030_1.html

>>>
Availability

Linux end users that are interested in more information or in purchasing the SCO
IP License throughout North America can call 1-888-553-3302 or e-mail SCO at
scoiplicense@sco.com . Customers outside of North America should contact their
local SCO sales office or e-mail SCO at scoiplicense@sco.com.

Forward looking statement safe harbor:

This press release contains a forward looking statement regarding The Company's
plans to make the SCO Intellectual Property License available in the U.K.,
France, and other European countries and many more countries and regions by
February 1, 2004. This statement is subject to risks and uncertainties including
without limitation those risks and uncertainties identified in our filings with
the SEC and the risk that we will not be in a position to roll out this license
in such countries and regions as planned. We undertake no obligation to update
the information in this release, except as required by law.
<<<

So can they get them, I mean even if they wanted them? Seems SCO is saying they
may not even be legally able to offer these overseas. Hmmmm.......

---
//A picture is worth a thousand words//

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Steve Martin on Thursday, January 15 2004 @ 08:26 AM EST

Okay, let's review.

From Judge Wells' Order Granting Motion to Compel:

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.
From SCO's Notice of Compliance:
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.
From the aforementioned Declaration of Ryan Tibbitts:
21. Once access to the missing source code is granted, SCO will continue to analyze the code to determine improper contributions of UNIX code to Linux and any additional discovery that may be necessary. Given the volume of the expected disclosure by IBM [1], it is expected that SCO and its engineers and consultants will be able to provide further answers to IBM's interrogatories within 90 (ninety) days after the delivery of the missing versions of software and accompanying documentation and programmer notes related to the requested source code.
(All emphasis added by me)

This seems to me to be the only date mentioned in Tibbits' submission. Is it just me (and remember, IANAL), or did Tibbitts just commit contempt of court by tying the date of compliance (and by implication the intent of compliance) to the very discovery that Judge Wells told them they couldn't have until they complied? Looks to me like it reads "we won't comply until we get our discovery requests fulfilled".

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Help my understand: Why are AIX and Dynix at issue?
Authored by: deList on Thursday, January 15 2004 @ 08:34 AM EST
I have some questions that have been bugging me for some time. Today's information just confounds me further.

18.1 The "Read Copy Update" (RCU) code contributed to Linux by IBM was copied substantially verbatim with only relatively minor changes from Dynix/ptx.

18.2 The Journaling File System (JFS) code contributed to Linux by IBM was almost certainly copied and adapted for Linux from a version of AIX more recent than the one available for comparison


Ok, why does SCO care about what IBM contributed to AIX and Dynix? I mean, IBM's contract gave IBM control of contributions that IBM made, right? Even derivative work, right? So, if IBM contributed (created stuff as addins) to AIX/Dynix, IBM owns it and can contribute it to other products as well, right?

So, even if SCO happens (however unlikely) to be right about IBM contributing to RCU and JFS on both the AIX/Dynix and Linux fronts... who cares? It's allowed in the contract. I just don't see where SCO's UNIX (sysv) or SCO's products are seriously brought up here... if at all?

Have I missed something?

---
"The problem with SCO is not them misunderstanding. It is daring anyone to call them on their misinterpretation." - Anon, 1/13/2004

[ Reply to This | # ]

Eolas prepares to sink Microsoft
Authored by: Anonymous on Thursday, January 15 2004 @ 09:04 AM EST
http://www.theinquirer.net/?article=13649

"Once Mr Doyle has the half-a-bill firmly wedged in his back pocket,
he'll do a deal to allow open sourcers to use the technology freely, we
imagine"

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Thursday, January 15 2004 @ 09:07 AM EST
I just can't help but think that SCUMX has given up on the IBM revenue stream.
Now they want these court procedings to end in a way that nothing is proven.
This way they can keep enough FUD alive to sue another day. They may go after a
Linux customer if they can survive this fiasco without getting smacked down too
hard.

What will the SCOX strategy be after their fishing license is denied?

[ Reply to This | # ]

OT:Mutual Fund Scams
Authored by: Anonymous on Thursday, January 15 2004 @ 09:07 AM EST
Here is a story about the SEC investigating Mutual funds for improper business practices, I hope they investigate PIPE deals too. CNN Story about Mutual Fund Scams

[ Reply to This | # ]

did I miss something?
Authored by: Anonymous on Thursday, January 15 2004 @ 09:18 AM EST
I have worked as a consultant. If I am working using another companies
proprietary codebase, I must sign a non-disclosure agreement. That means, I
don't copy or inform other of what is in the code. How can SCO use testimony
from someone who signed an agreement stating that they can't disclose that
information?!?!?!?!

[ Reply to This | # ]

PR Annoyance
Authored by: Anonymous on Thursday, January 15 2004 @ 09:19 AM EST
Hi, been around for a while, but 1st time posting.

Love your work PJ!

I was curious, lets say the Judge somehow favors in part to SCO. Basically
delaying the whole thing another 1-2 months. Uhhh... God forbid, another 3
months or more.

Can the court order SCO to stop putting out Press Releases period. I am not
saying individual researchers and analysts can't look into or interview SCO,
but SCO itself just can't say 'your linux is illegal' type of stuff.

If the court can tell SCO "don't utter a work until I believe you have
something to talk about or your court date", it would REALLY cut down on
the headache this is causing many people (not the worried kind, the 24/7 crying
baby kind). Or better yet, also adds that SCO will take back EVERYTHING that is
even remotely misleading in all their PR statements.

GOD... that would definetly make me see a glimmer of hope in our Justice
System.

later,
Orlanz

[ Reply to This | # ]

  • PR Annoyance - Authored by: Anonymous on Thursday, January 15 2004 @ 09:38 AM EST
  • PR Annoyance - Authored by: Anonymous on Thursday, January 15 2004 @ 10:07 AM EST
    • PR Annoyance - Authored by: Anonymous on Thursday, January 15 2004 @ 10:26 AM EST
  • PR Annoyance - Authored by: pooky on Thursday, January 15 2004 @ 11:19 AM EST
    • PR Annoyance - Authored by: Anonymous on Thursday, January 15 2004 @ 02:52 PM EST
    • PR Annoyance - Authored by: Anonymous on Thursday, January 15 2004 @ 03:29 PM EST
Dynix/ptx 4.6.1 most current
Authored by: Anonymous on Thursday, January 15 2004 @ 09:26 AM EST

12. ... SCO's engineers and consultants have informed me that to determine the nature, extent and source of IBM's contributions to Linux, engineers within SCO, as well as outside consultants, have examined the following materials and sources of Linux kernel source code (available online from http://www.kernel.org/). Several versions of source code were examined, including:
12.1.6 Sequent Dynix/ptx source code, version 4.6.1

15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.

19. In order for SCO to fully answer IBM's interrogatories, we require access to the missing verisons of software, specifically:
19.2. All versions of Sequent Dynix/ptx source code from one year prior to verison 4.6.1 to the final release Dynix/ptx, together with documentation and programmer notes from the development process;

4.6.1 was the last release of Dynix/ptx so it is the final release so how can they ask in 19.2 for something later? It became available on 2001/08/10 and was withdrawn from service on 2002/12/31. 4.5.3 was released one month after 4.6.1 but was just a service roll-up. There is NO development going on in IBM on Dynix/ptx (and there has not been any for a couple of years now). Unless SCOG thinks that somehow IBM made changes to Dynix/ptx in 4.6.1 to obscure their contributions to Linux, why would they need any earlier releases? At the time IBM announced end-of-service for all releases of Dynix/ptx, nothing was known of a forthcoming SCOX suit.

[ Reply to This | # ]

The Statement of Randolph Carter
Authored by: chrism on Thursday, January 15 2004 @ 09:31 AM EST
The title "Declaration of Ryan E. Tibbitts" brings to mind an H.P.
Lovecraft short story called "The Statement of Randolph Carter".

I am not sure exactly why my mind made that association. I think the name
"Ryan E. Tibbitts" has some sort of Victorian flair to it that a lot
of Lovecraft's protagonists' names had.

Although I am a big fan of Lovecraft's work, I am not equal to the task of
writing a parody. If anyone else finds the project interesting, by all means
feel free.

Chris Marshall

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts
Authored by: Anonymous on Thursday, January 15 2004 @ 09:43 AM EST
As I understand it (IANAL, yada) company directors do not have the luxury of being "out of the office" or "unavailable during holidays".
A company director has responsibility to be available as and when company affairs dictate. Shareholders should be seriously asking why the directors of the company are AWOL.
I am a (small) company director. The buck, dear friends, stops right there.

[ Reply to This | # ]

Do I have this Confused
Authored by: Anonymous on Thursday, January 15 2004 @ 10:05 AM EST
There may be some IP. SCO claims they own it. IBM claims they don't. This is
WHY there is a court case pending. Now, SCO claims they can't comply with
discovery until after they effectively win their case, since they need the IP in
dispute to provide the evidence to prove that it's their's and not IBM's.
Doesn't this mean that the horse has a really bruised chest from smashing into
the cart? Can you do this legally? Or am I being naive by applying logic to the
law?

[ Reply to This | # ]

Declaration of Ryan E. Tibbitts ??
Authored by: Anonymous on Thursday, January 15 2004 @ 10:21 AM EST

So Tibbitts is, essentially, ``declaring'' that IBM needs to provide SCO's previous requested discovery items before they can responds to IBM's?

I can't think of anything I'd fear more than being an SCO lawyer standing in front of judge Wells on January 23rd. I hope Kevin McBride remembers to pick up some Depends on his way to the courthouse.

[ Reply to This | # ]

IBM Results
Authored by: Anonymous on Thursday, January 15 2004 @ 10:23 AM EST
If we post sco results here then ibm results should go here aswell:

http://news.com.com/2100-1014_3-5141348.html?tag=nefd_top

The company said its fourth-quarter profit jumped 41 percent to $2.7 billion or
$1.56 per share for continuing operations, 6 cents higher than expected. Revenue
totaled $ 25.9 billion, also slightly higher than expected, for the quarter
ending Dec. 31.

[ Reply to This | # ]

Crazy!
Authored by: Anonymous on Thursday, January 15 2004 @ 10:33 AM EST
I don't understand how SCO think they can get away with saying 'you have
infringed our IP / broken our contract and we are taking you to court' and
then, arriving at court, say 'Ok, now we are court. We need your code to
discover if you have infringed our copyright / broken our contract. We just
can't tell for sure at the moment.'

How can that make sense?

Surely, in order to decide to go to court for a real infringement by IBM they
would have found some code that really looks the same in the copies of UNIX
source they have and Linux source and be eager to show it off. They would not
have to find it now, having brought the action.

If I was this judge I would not throw the case out but force SCO to stay there
until they had revealed what they considered evidence, and keep kicking them
with fines for contempt until they produced something. They could be a very
broke company after that.

[ Reply to This | # ]

  • Crazy! - Authored by: pooky on Thursday, January 15 2004 @ 11:03 AM EST
Actually, it all makes sense
Authored by: overshoot on Thursday, January 15 2004 @ 10:35 AM EST
If you assume that SCO has no hope of actually winning the suit and just wants to run out the clock to keep the stock scam going. In that light, there's no point in putting any more work in on the case than absolutely necessary.

We keep pointing out that discovery stops until SCO satisfies IBM, and forget that "stop" is a good thing from SCO's point of view.

Meanwhile, they get on with important things like shopping, New Year's parties, etc.

[ Reply to This | # ]

What about the copyright complaint against IBM?
Authored by: mitphd on Thursday, January 15 2004 @ 10:35 AM EST
Maybe Linus got it right the first time; maybe the people at SCO really are smoking crack. At the Dec. 5 hearing, Kevin McBride said:
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.
In a Jan. 12 Infoworld article Stowell is interviewed:
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."
What in the world is going on? On Dec. 5, SCO 'proffers' that Real Soon Now it will be adding a copyright complaint against IBM, and 5 weeks later SCO is disclaiming any such thing, and producing no evidence to support it even though the Court ordered it to do so.

Was SCO's 'proffer' made knowing that there was no evidence? Does SCO have evidence that it is refusing to reveal despite a court order? Is there any evidence of intelligent life inside SCO headquarters?

[ Reply to This | # ]

    (OT) Interesting SCOX Board Member...
    Authored by: Anonymous on Thursday, January 15 2004 @ 10:47 AM EST
    Now, I'm sure other people have noticed this, but I didn't find anything
    searching the site...

    R Duff Thompson, on the Board of SCOX, was the VP of Business Development at
    Novell from '94 to '96. Consequently, he whas there in 1995 and was the guy
    at Novell in charge of the APA with with oldSCO that started this whole mess.
    He was the guy who signed Amendment 1 to the APA, for example. He is also a
    lawyer and was chief counsel for WordPerfect at one time, so he was not only the
    guy in charge from a business aspect, he very likely was very involved with
    reviewing the legal terms, etc.
    He is in a very interesting position, as he should be very aware of what the
    *intent* of the gray areas in the APA (e.g. Amendment 2).

    [tinfoil on] Does he know something we don't? If he does know it was just a
    licensing deal and not a transfer of IP, can his misconduct in advising SCOX be
    so severe/criminal as to make him *personally* liabale (he probably has more net
    assets than SCO once the lawyers take their piece)? Was this part of his evil
    10-year plan? [tinfoil off]

    Perhaps his records are of particular interest to IBM (and of particular
    interest to SCOX to try and get "lost" or protected as
    attorney-client communications)

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: pooky on Thursday, January 15 2004 @ 10:48 AM EST

    So what Ryan Tibbets has essentially declared is SCO cannot produce what IBM asked for without IB's response to SCO interrogatories. There is not one instance in the declaration except for item 18.1 where they even assert line by line copying.

    14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

    15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

    18.1 The "Read Copy Update" (RCU) code contributed to Linux by IBM was copied substantially verbatim with only relatively minor changes from Dynix/ptx.

    As you see form items 14 and 15, especially 15, they state directly it is not possible for them to have done a line-by-line code comparison. Then in 18.1 they declare that RCU was copied "substantially verbatim" from Dynix/ptx. How exactly was this conlusion reached if they stated they can't find it in the version of Dynix/ptx they were given by IBM?

    Worse yet, SCOG's representatives has stated numerous times in public that they had proof that there was line for line copying in Linux from UNIX, and there were millions of lines of code. (I wont bother with posting my proof links, go look in the quote database).

    Ryan Tibbets has just informed the entire world that SCOG has in fact been lying to the public since he just declared to the Court that SCOG cannot perform a line-by-line code comparison because they don't posses or have access to the versions of AIX and Dynix/ptx that MUST contain the source of the copying. In other words, they have never actually seen the UNIX source that they claim was copied into Linux with their own eyes. They are assuming IBM did something improper without any actual hard proof.

    So the entire argument boils down to this: "IBM must have done it because Linux has advanced too fast with features for them not to have been stolen from UNIX". (SCOG claimed that in their complaint against IBM) IANAL, but I'm alot more comfortable now than I was on 1/5 with regards to SCOG's claims. There is no way that is going to fly in the 1/23 hearing "we think IBM did it, our engineers are sure even though they can't prove it."

    Of course it's not just the public that has been lied to by SCOG. Lets not forget RBC and BayStar who invested a collective $50 million in SCOG which was very likely based to a large degree on their belief in the outcome of this lawsuit against IBM.

    -pooky

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

    [ Reply to This | # ]

    IBM could stipulate copying.
    Authored by: arch_dude on Thursday, January 15 2004 @ 11:05 AM EST
    In the unlikely event that Judge Wells accepts SCOG's contention that they need
    to see the Dynix and AIX code, IBM could simply stipulate that IBM did copy
    Sequent IP from Dynix into AIX and then from AIX into Linux: this appears to be
    what SCOG is looking for to support the contract violation case. If IBM so
    stipulates, SCOG has no grounds for further discovery, and SCOG could then reply
    to IBM's discovery with the stipulated code. IBM could averr that the
    stipulated code constitutes the entirety of any code "copied" from
    either Dynix or AIX, and require SCO to list any other claims to Linux.

    This will dramatically simplify the case, which is exactly what SCOG does NOT
    want. The case would then reduce to a razor-sharp finding of law, not of fact,
    and IBM could then move for summary dismissal of SCO v IBM.

    This strategy may be slightly riskier than the current slow plodding, but the
    payback would be to short-circuit SCOG's delaying tactics. The risk is still
    effectively zero.

    Summary dismissal is based on the following:
    Either the AT&T contract with Sequent (and many other such contracts) was
    truly entered into with the understanding that the licensee is bound by SCOG's
    theory of "derived works," or it is not.

    CASE 1: Licenses did not actually imply SCOG's derived works theory. SCOG has
    no claim, case dismissed.

    CASE 2: Licenses do bind the licensee to encumbering their IP per SCOG's
    theory. If so, the entire set of licensees and AT&T engaged in a violation
    of the anti-trust laws and of the 1956 AT&T consent decree. The
    "derived works" clauses of the contracts are therefore illegal and
    thus void. SCOG has no claim, case dismissed.

    [ Reply to This | # ]

    It makes sense now
    Authored by: Anonymous on Thursday, January 15 2004 @ 11:07 AM EST
    This confirms what I've believed all along. SCO's contention is that, once a
    licensee such as IBM added their own code to a Unix derivative (in this case,
    AIX), then that code is owned by SCO, and further use of that code outside of
    the Unix licence is a violation of SCO's IP rights.

    The reason that SCO needs to see all the versions of AIX, including unreleased
    versions, is to determine when that code became their property. I imagine they
    want to identify the scope of the violation, so they can justify a large damage
    amount.

    IANAL, but this argument just seems insane to me. Since when does adding code to
    something make that code a derivative of the thing it was added to? Is there an
    expert out there who knows?

    If my theory is correct, then SCO has been telling us all along what code in
    Linux infringes their IP. Since some of the code added by IBM to AIX was
    previously added to OS/2, it's a good thing OS/2 isn't being sold anymore, or
    SCO would be suing those users, too.

    [ Reply to This | # ]

    Line-by-Line Copying
    Authored by: jdg on Thursday, January 15 2004 @ 11:07 AM EST
    A (somewhat wild) thought just occurred to me. Is it possible that SCOG has an
    unauthorized version of AIX source code and from this source code they think
    that they discern the copying? This line of thinking is that that they cannot
    use this unauthorized version of the code and need to get legal access to the
    code.

    (IANAL)

    ---
    SCO is trying to appropriate the "commons"; don't let them

    [ Reply to This | # ]

    OT: New stock pumping announcement
    Authored by: Anonymous on Thursday, January 15 2004 @ 11:29 AM EST
    http://biz.yahoo.com/pr news/040115/lath030_1.html

    The SCO Intellectual Property (IP) License permits the use of SCO's intellectual property, in binary form only, as contained in Linux distributions. By purchasing the license, customers are properly compensating SCO for the UNIX source code, derivative UNIX code and other UNIX-related intellectual property and copyrights owned by SCO as it is currently found in Linux.


    BTW, has anybody noticed that when SCO is more desparate to maintain the stock price, the press releases get more frequent?

    Here's me wondering if they will be issuing new releases hourly after IBM tears them up come Jan 26 (first Monday after Jan 23).

    If I'm right, that will be one weekend when they won't be taking a holiday

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: hardcode57 on Thursday, January 15 2004 @ 11:33 AM EST
    Only if they actually go to trial, or otherwise reveal their case, will people
    be able to see their case is laughable, so that is what they wish to delay
    doing.

    Methinks the plan is to mess around until the Judge loses patience and
    tosses their suit unheard. They then appeal, and FUD __(and inflated stock
    price)__ persists, since public perception of this stage of the case is that it
    is 'just procedural'.

    If they actually comply with the discovery order now,
    the jig is up.

    [ Reply to This | # ]

    Dismissed with Prejudice?
    Authored by: Dewey on Thursday, January 15 2004 @ 11:39 AM EST
    What are the possible penalties that Judge Wells could impose on SCOG should she
    dismiss their suit with prejudice?

    [ Reply to This | # ]

    OT: Clear as FUD (Not about copyright?)
    Authored by: Anonymous on Thursday, January 15 2004 @ 11:42 AM EST
    http://www.infoworld.com/article/04/01/13/HNscoshowscode_1.html
    5th paragraph down is just a classic...

    "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."

    Yes, they've obviously tried to make that clear...

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: ExcludedMiddle on Thursday, January 15 2004 @ 11:47 AM EST
    This declaration is truly surprising. They file a paltry 60 page document as
    their complete answers to IBMs charges, and then they continue to state that
    they need to go fishing.

    I want a lawyer to explain something to me, please:

    IBM cited a number of rulings and laws that stated that SCO's charges must be
    stated with specificity in order to continue with the case. The court accepted
    this argument, as they held the plaintiff's discovery requests in abeyance
    until IBM's requests were satisfied. This was done with the idea that once SCO
    gave IBM the information required, IBM would be able to answer the specific
    charges. To put it another way, IBM's theory that SCO's responses will scope
    IBM's answers was basically validated.

    So if during discovery OTHER violations are found, can they be added during this
    discovery phase? Let's just say that in those 60 pages, SCO marked particular
    line numbers as being infringing, based on IBM's AIX code that they already
    posess. Or perhaps particular lines in Linux are marked based on their analysis
    of SysV code. Then let's say that the judge allows this case to go forward. Can
    SCO then request all of this other material, as Mr. Tibbitts declaration is
    stating, and add more violations as they go? Or is this case scoped by SCO's
    response to the point such that they are not entitled to that extra data? I
    suppose this has to do with both the scope of the discovery, and the nature of
    the complaint. But I'm trying to understand how these things work.

    Put another way, how much leeway does a general Plaintiff get to do some measure
    of fishing? Mr. Tibbitts seems to be brazenly asking for quite a bit. I find it
    especially intersting on how much this declaration tips their hand, showing how
    much they don't have.

    [ Reply to This | # ]

    What's going on with RH vs. SCO?
    Authored by: Anonymous on Thursday, January 15 2004 @ 12:04 PM EST
    PJ,

    Can we please get an update on the Red Hat case? It's been a while :)

    [ Reply to This | # ]

    What is a derivative work?
    Authored by: Anonymous on Thursday, January 15 2004 @ 12:22 PM EST
    It seems that SCO’S vociferous claims of massive violations of SCO copyrights
    are falling by the wayside, leaving the core of their suit, a claim that IBM did
    not keep IBM IP secret as required by contracts IBM had with AT&T. If so,
    the question becomes "what is a derivative work?" Obviously, any
    product that included SYSV code would qualify. AIX as a combination of SYSV
    code and “from scratch” code such as JFS (assuming JFS is “from scratch”) would
    still be a derivative work. Now the big question: Would inclusion of JFS, not
    derived from SYSV code, in AIX, clearly a derivative work of SYSV, make JFS
    considered alone, a derivative work?

    [ Reply to This | # ]

    'Legally Perplexed' asks a simple question.
    Authored by: Anonymous on Thursday, January 15 2004 @ 12:24 PM EST
    First of all I have been following the SCO affiar but know
    very little of the 'real' workings of the legal system.

    I run a small software consulting company where our clients use Gnu/Linux almost
    exclusively (we provide communications software expertise).

    Our clients are starting to express some doubt as to the future of Linux,
    specifically in the area of patents.
    That is, if Linux is to continue to be used in business and industry it will
    have to be absorbed (taken over) by proprietary companies, as Novell has done
    recently. This will enable proprietary and patented software to be used in
    conjunction with / embedded into, etc. Whatever the validity of these
    predictions, (and I certainly don't agree) some clients are really backing off
    the use of Linux BECAUSE of
    the SCO lawsuit.

    Now I am getting perplexed by how this lawsuit, and particularly SCO's
    statements are allowed to proceed.

    I have a very simple question for Groklaw, and its readers:
    Supposing I sue a company accusing them of having stolen
    a trademark, patent, or similar legal artifact.

    Should a judge not expect me to have some reasonable proof
    before the case even goes to trial ?

    In other words am I not obligated to demonstrate, albeit,
    in a 'reasonable' and perhaps 'summary' manner, evidence
    of my accustion, in order to determine if the case should even go to trial?

    So how long can SCO continue to publish threats of lawsuits
    against companies that use Linux, without it having been proven that SCO is
    indeed the legal owner of what it says it owns.

    My own clients find a lot of humour in the SCO - Novell back and forth, but I
    fear that in the end the SCO affair may
    hurt Linux to the point where, in industry, it will regress to a marginal OS.

    Please show me I am wrong!

    Thanks.

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: Anonymous on Thursday, January 15 2004 @ 12:26 PM EST
    OMG, IBM's lawyers are going to have a field day with this.

    Ok, so IANAL - could somebody who is verify my logic here?

    Maybe this is what is in the 60 pages, but I don't see anything alledging that
    there is any copying of code from their (TSG's) SysV code base into Linux,
    rather it's all based on transfer of stuff TSG doesn't have but claim
    contractual limitations on.

    TSG were asked to provide details of the basis of their lawsuit with
    specificity. This is it. Ignore for a moment the fact that they're still asking
    for discovery from IBM in order to specify lines of code. Every single one of
    their allegations appears to be based on their theory that they have contractual
    control over code that IBM produced if it was ever in the past used in
    conjuction with either Dynix/ptx or AIX. This would seem to give IBM grounds to
    move to dismiss. If I understand correctly, a motion to be dismissed will be
    adjudged on the temporary assumption that all the allegations made are proved.
    If it can be shown that there is no case to answer even then, then the dismissal
    is granted (this is where somebody who actually knows what they're talking
    about rather than an armchair lawyer would help :-)). IBM seems to have a route
    here. Aren't they now going to move to dismiss, speaking only to the issue of
    whether TSG's theory is correct? They can (must) assume for the purposes of
    that motion that all the allegations are proven, but are moot if the theory is
    false.

    Maybe this is what TSG wants. It allows them to salvage from the whole mess the
    fact that no allegations were tested, and all that they fell down on was that
    their contractual theory was wrong.

    However, that still leaves the counter-suit. The motion to compel was also
    related to discovery for IBM's counter suit. They have alledged publicly that
    IBM have copied direcetly code from SysV into Linux. They were asked to provide
    evidence of that fact in the motion to compel, and haven't.

    Doesn't this make the counter suit a slam dunk?

    once again, IANAL. I'm sure the people on the board who actually know what
    they're talking about can put me straight if this is completely erroneous...

    [ Reply to This | # ]

    Request to IBM
    Authored by: fjaffe on Thursday, January 15 2004 @ 12:27 PM EST
    Dear Mr. Marriott and IBM Attorneys,

    Thank you for your excellent work to date on the SCO v IBM complaint. I really look forward to seeing your work on the IBM v. SCO complaint, should SCO still be in existence when that matter is advanced to trial.

    On behalf of myself, a long time IBM shareholder, and most likely on behalf of thousands of others, I am writing to ask you to contest any attempts by SCO to conceal their responses to your interrogatories from the community of interested observers by inappropriate use of the Protective Order. I believe that it will be to your benefit to ensure that as many details of SCO's claims and purported evidence are made available to the community for analysis and discussion.

    Sincerely,

    Frank Jaffe

    [ Reply to This | # ]

    The Dodo lives!
    Authored by: Cambo on Thursday, January 15 2004 @ 12:37 PM EST
    Sorry, that should have read "Didio" ;-)

    www.newsfactor.com/story.xhtml?story_title=SCO_Goes_Global_with_Linux_License&am
    p;story_id=22997&category=entcmpt

    Nothing really new, I'm afraid....



    Cambo
    (link courtesy of soros_sr on Yahoo board)

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: pooky on Thursday, January 15 2004 @ 12:51 PM EST
    <p><i>"16. Our engineers have reached the conclusion that
    parts of Linux have almost certainly been copied or derived from AIX or
    Dynix/ptx. In those cases, confirmation of this opinion would require access to
    more current versions of AIX and Dynix/ptx."</i></p>
    <p>I think that if SCOG wants this to go forward, those 60 pages better
    detail the claim above somehow. There has to be something tangible that the
    Court can see for SCOG to argue that this does in fact specify exactly what IBM
    copied into Linux.</p>
    <p>If it doesn't, I don't see how the case can go forward on
    unsubstantiated claims. That would, to use a SCO lawyer quote, "Defy
    Logic".</p>
    <p>-pooky</p>

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

    [ Reply to This | # ]

    Stolen code is not admissible
    Authored by: Anonymous on Thursday, January 15 2004 @ 12:54 PM EST
    "We need code from IBM to show that they copied stuff" doesn't seem
    like a good way to go about a lawsuit unless either a) You're a monkey or b)
    you've already seen the things that are wrong, but got them in an illegal
    manner and so cannot use them in a lawsuit.

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts - Unclear on dates...
    Authored by: kcassidy on Thursday, January 15 2004 @ 01:00 PM EST
    OK. I was reading through the whole thing and maybe I am just a little confused as to his statement, but does this statement not somewhat contradict the statement released by SCO in their Notice of Compliance as posted here on Groklaw the other day? This is where the timelines seem to get obscured...

    [Taken from the above link] 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.
    OK. So they admit that they could not get the proper documentation due to the holidays in order to submit it to IBM on time. Every company does allow its employees holidays, even minimal ones. (I only got Christmas Eve and the 26th off.) This is understandable.

    4. After this Court's Order on December 12, 2003, I began to coordinate the gathering of responsive information from SCO's outside directors.
    Something we all know. The court order was made on December 12. This sets the date for all materials to be submitted by January 12 2004 to IBM for consideration. Now, there are holidays in here as well:
    5. Specifically, before our offices closed down for the holidays -- from December 24, 2003, to January 1, 2004 -- I either spoke with, or left messages for, all outside directors.
    OK. We now know the SCO official holiday schedule, as was deposed by Mr Tibbits. Presumably, during this time, contact with SCO from end of business on December 23 to start of business on January 2, as per these dates, would only be achieved in an emergency situation. Assumption from this information: No manager is available to post documents to Mr Tibbitts during this time; this leaves us with a total of December 13-23 2003 (11 days) and January 2-12 2004 (11 days) in which SCO must produce all of its documentation; a total of 22 days. Not bad, still doable.

    How is it possible that in that 22 days time span Mr Tibbitts was unable to contact several directors of the company? In light of the current lawsuit, would it not make more sense for SCO to be prepared with all of its documents ahead of time, specifically ones already requested by IBM in the past, and just not turn the materials over until ordered to do so by the court? Yes, common sense dictates that it would. However, SCO appears to be notorious for expecting extended delays for whatever reason (speculation not withstanding, we do not know the true reason behind the continual delays, but we as a community have our strong suspicions).

    But honestly, are they trying to get the public and the court to believe that months after the information was initially requested their legal department did not have access to these files in order to determine if they were relevant or not and to argue the relevancy of specific files with the court? None of these amendments made by IBM for the information are new; there has been ample notice by IBM that they wanted this information. As such, the materials should have at least made their way in their entirety to the SCO legal department by this point. There should be no more delays with any of the information.

    So what is SCO specifically trying to do? Here is a supposition, with no factual information to substantiate it, but the opinion of myself and a few other colleagues of mine from our readings:
    1. SCO has, indeed, turned over all requested documents as requested by IBM where specific individuals were named. (Submission: Article 11 of Tibbitts deposition.)

    2. Information for some other directors who were unavailable for close to a month have only just come into the possession of Mr Tibbitts and are currently being perused by the legal department and will be available prior to the January 23 2004 hearing date.

    3. Supposition: The information that may be held by these directors who were not specified may be information that SCO does not want IBM to see; i.e. this information may be the smoking gun. Otherwise, why postpone this discovery in such a manner?
    This is just an inference, with no factual base, except the analysis of previous misdirection by SCO as well as the usual delay tactics that they seem to prefer. They indicate that they want a court to determine the case, but are unwilling to provide the materials to the court with which to do so. I also like how Darl was available for many comments over the "vacation break". I do seriously find it hard to believe that he had no method of contacting these other directors (who could have just had one of their lackeys go into the office and obtain the requested documents for them).

    [ Reply to This | # ]

    OT: SCO use of funds
    Authored by: Sunny Penguin on Thursday, January 15 2004 @ 01:04 PM EST
    If SCO would have only taken the 20 Million paid to "Da Boys" and
    hired new programmers to revamp Unixware and Open Server.
    They could have had a modern software product worthy of the enterprise.
    How many programmers could you hire for 20 million?
    If you can't innovate litigate ???
    As Bugs Bunny said:
    "What a Moroon"



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

    [ Reply to This | # ]

    NINETY Days??!
    Authored by: turambar386 on Thursday, January 15 2004 @ 01:06 PM EST

    Whatever happened to:

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

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

    MR. MCBRIDE: Your Honor, if we have it in computer readable form, our experts can analyze it.


    ???

    [ Reply to This | # ]

    SCO's Notion of "Derivative Works"
    Authored by: ATS on Thursday, January 15 2004 @ 01:11 PM EST
    First of all, IANAL (but I used to work for a whole bunch).

    Something that I keep seeing in SCO's filings and statements goes to their
    bizarre-seeming notion of what a "derivative work" is.

    The key idea showed up again in the Declaration of Mr. Tibbetts:
    "experience and knowledge of the methods, sequence and structures
    used".

    According to this notion (which may well be legally bogus), showing actual
    copying of code is *not* necessary. Showing copying of code, which is what
    people rightly keep insisting on based on SCO's claims, would be sufficient to
    prove SCO's point but is not necessary to prove it.

    SCO seems to feel that they don't have to show that Linus or other code
    contributors copied, or were even ever exposed to, SysV code. SCO acts as
    though they only have to show that Linux code uses the methods, concepts, and
    structures in SysV.

    At root <sorry>, they seem to feel that Linux is an unauthorized
    derivative simply because Linux is a UNIX-like OS. For them, that is enough.
    Q.E.D. "If it looks like UNIX, walks like UNIX, and talks like UNIX, it
    must be UNIX." (Of course according to that theory, DOS and possibly all
    successive Microsoft OSs would be unauthorized derivatives of CP/M.)

    Now this may just be a lawyerly bit of "just in case our other claims
    fail" fall-back. But it seems to me that the notion of "methods and
    concepts" is key to SCO's various claims and delusions.

    What do others, including any Intellectual Property lawyers out there, think?
    (I reserve the term "IP" for the network protocol.)

    [ Reply to This | # ]

    Fishing precedence
    Authored by: moogy on Thursday, January 15 2004 @ 01:15 PM EST
    IANAL...
    I am not ignoring the fact that SCO was compelled to provide
    IBM specific information and is failing to do so and instead
    they are re-stating their request for a 'fishing expedition'
    to find the evidence to prove their accusations but what is
    the precedence on doing this and might the court accept this?

    I know that fishing for more evidence is acceptable when a
    foundation of evidence to support the accusations has been
    provided, but are there any cases where a party has made
    accusations of misconduct and breach of contract with no
    specific evidence at all and were allowed discovery BEFORE
    providing any specifics for the allegations?


    ---
    Mike Tuxford - irc.fdfnet.net #Groklaw
    First they ignore you, then they laugh at you,
    then they fight you, then you win. --Gandhi

    [ Reply to This | # ]

    My response to "Linux developers warned to watch their backs"
    Authored by: Thomas Frayne on Thursday, January 15 2004 @ 01:16 PM EST
    I sent the following response to ZDNET for the article Linux developers warned to watch their backs.


    I agree that Linux needs more protection against patent suits, since an end-user can be forced to pay damages for violating a patent that he or she was not even aware of.

    Even winning a patent defense is usually costly, since you usually have to search for prior art. However, the Groklaw.net web site provides free state of the art legal research for cases like this, and OSDL has offered to pay legal expenses.

    We should have a list of all Linux projects that specificly require developers to certify that their contributions are original work, and that their employers have agreed. Also, a complementary list of projects that do not have this requirement. Users that are worried could refuse to install projects that do not have this policy.

    However, the best defense of a patent suit is a patent that you can claim the plaintiff is violating. The Open Source Software/Free Software movement (OSS/FS) has some of the best innovators in the software world. All that is needed is for them to build a patent portfolio for defense of OSS/FS.



    Meanwhile, you mentioned SCO.

    SCO responded to IBM on Monday's deadline with 60 pages of answers to IBM's questions and an unspecified number of documents. SCO also filed with the court a certification of compliance with the court order and an affidavit with the reasons they could not answer all IBM's questions.

    It is now too late to submit more information to IBM. The January 23 court hearing is for oral arguments on whether SCO has sufficiently answered all IBM's questions with specificity, and on whether SCO can prove a valid need for confidentiality on all the answers that it labelled confidential.

    The court order required SCO to answer IBM's interrogatories 1-9 and 12-13 with specificity, by file and line number, without further negotiations with IBM. For example, #12 asks SCO to define all parts of Linux that SCO claims rights to, and for each, the nature of those rights.

    Neither the certification nor the affidavit mentions copyrights. If, as SCO's spokesman Stowell remarked, no information on copyrights was submitted to IBM, then Stowell's remark is a public admission that SCO deliberately defied the court order.

    The penalties for failing to meet a court order to compel are severe, and include the possibility that the judge will dismiss SCO's suit, and order summary judgment on IBM's counterclaims. If so, we won't have to wait for 2005.

    [ Reply to This | # ]

    Jury Trial or Point of Law?
    Authored by: gribnick on Thursday, January 15 2004 @ 01:16 PM EST
    This case, as I understand it, is scheduled to go to Jury trial in <some
    month> 2005 (aka, long-way-off). I'm wanting to understand what parts of
    this case would go to a jury trial at that time and what might be decided at a
    point of law before that time that might affect whether or not we even get that
    far.

    My thinking is this. When you get down to it, there really isn't a whole lot of
    discrepency between the two sides as to who did what. IBM signed contracts, IBM
    contributed code to Linux, SCO is a bunch of idiots.. Ok, so maybe the last one
    is disputed by SCO but I digress. The points of contention between the parties
    appear to be interpretation of law and interpretation of the contracts in hand.
    Once these are ironed out, the dominoes of the entire case will pretty much be
    lined up to fall one way or the other. Is a jury involved in either of these
    things or are these things that a judge decides and when? Who asks, etc??

    [ Reply to This | # ]

    The Investment Community Is Getting It
    Authored by: seeks2know on Thursday, January 15 2004 @ 01:30 PM EST

    There are more and more articles within the investment community that are seeing the reality of SCO's claims.

    Here is an article from the Motley Fool regarding SCO. A small quote:

    "If SCO thought threat-born licensing fees would provide a quick boost to the bottom line, it looks to have miscalculated. As fellow Fool Tom Taulli noted last month, SCO has tried to cast its lawsuits in apocalyptic terms. But with the entire computing world putting its money behind Linux, it appears that, for SCO, the apocalypse is now."

    O SCOX stock, where goeth thou now?

    ---
    "Convictions are more dangerous enemies of truth than lies." - Friedrich Nietzsche

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: Anonymous on Thursday, January 15 2004 @ 01:43 PM EST
    "14.....it was not possible to directly compare IBM's contributions to
    Linux with the most likely source of those contributions
    15.......It was therefore not possible to directly compare IBM's contributions
    to Linux with another likely source of those contributions
    16.Our engineers have reached the conclusion that parts of Linux have almost
    certainly been copied or derived from AIX or Dynix/ptx. In those cases,
    confirmation of this opinion would require access to more current versions of
    AIX and Dynix/ptx."


    First SCO rated that their intellectual properties were violated. Later they
    revised it as a copyright violation. Much later, they are saying this
    litigation is about breach of contract. Does SCO even know what is this about?
    Of course they do. They are going out of business but not before ripping off
    millions from investors and the IT infrastructure. They've already stated so
    many times, "It is not possible..", that they cannot produce any
    evidence until IBM surrenders the AIX codes. They know what we know already.
    What you don't realize is that SCO is laughing all the way to the bank. The
    end justifes the means. Making money is what this game is all about. Even if
    they lose this case which they are counting on. They've stashed away bountiful
    loot.

    P.L.

    P.L.

    [ Reply to This | # ]

    TSG Bullpen
    Authored by: Anonymous on Thursday, January 15 2004 @ 01:44 PM EST

    I'll resist the temptation to go for the obvious cheap shot suggested by my title.

    I read the Tibbitts declaration as an attempt to try to recapture some of the momentum lost by Kevin McBride on 5 December. Kevin most certainly had a bad day in court on 5 December, particularly when Judge Wells ruled to postpone consideration of TSG's Motion to Compell Discovery pending TSG compliance with the IBM's Motion. TSG now desperately need to convince Judge Wells that they have complied in good faith with the 5 December Order of to Compell, and thereby move on to seek a favorable 23 January ruling on their Motion to Compell.

    The Transcript of Oral Arguments Friday, Dec. 5, 2003 SCO v. IBM is a key document, exhibiting the remarkable extent to which McBride was outclassed by Marriot in presenting their respective arguments before Judge Wells,

    Clearly, on 23 January we can expect Marriot to further develop his argument, so effectively presented on 5 Dec, that TSG is obligated to provide the specific facts supporting their complaint. The Tibbitts declaration is probably an excellent preview of TSG's intended rebuttal to Marriot.

    What I am wondering is if TSG plans to send Kevin McBride back to court to make their argument on 23 January. Given McBride's ineffective performance on 5 December, TSG may be considering their options re representation in court.

    Having closely read Kevin McBride's 5 December statements in court, I can't help but speculate that the core of the bizarre TSG legal strategy was hatched at a a McBride brothers backyard barbeque, fueled by more than a few beers, and following heartfelt commiseration about the threat posed to decent western coporate cultural values by long-haired, bearded hippies like Stallman, and arrogant European nerds like Linus.:)

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: jiml on Thursday, January 15 2004 @ 01:45 PM EST
    Have I missed something or is this the first time that rcu, numa, and such have
    been mentioned in a document to the court? I know SCO has said a lot in the
    press about this but I don't remember anything going into the court record.

    [ Reply to This | # ]

    Declaration of Ryan E. Tibbitts
    Authored by: ragnar on Thursday, January 15 2004 @ 01:58 PM EST
    Summary if SCO

    SCO: YOU'RE GUILTY!
    IBM: Huh? Of what?
    SCO: Don't give me that. You're the one who did something wrong, so why
    don't you tell me?
    IBM: Before we can even try to respond, we need to know what you think we did
    wrong.
    JUDGE: Tell IBM what they did wrong, be _specific_
    SCO: Well, heh, we don't know for sure. Why don't you tell us everything you
    ever did and we'll tell you what you did wrong.
    IBM: What are you talking about?
    JUDGE: What _are_ you talking about?
    IBM: Motion to Stike.
    JUDGE: Granted.

    In all seriousness, what are the penalties for bringing up frivolous,
    unsubstantiated law suits without a shred of evidence while claiming that the
    accused has to produce the evidence against them, if it even exists?

    Have they not considered that given the Linux source is freely available with
    and organized history and changelogs, they could figure out what IBM contributed
    on their own?

    Have they also not considered that given the availablility of Linux source to
    everyone, it would be far easier for SCO or any proprietary software company to
    misappropriate code from open source into proprietary code than vice versa.
    Should a real misappropriation of source code exist, might it not be that SCO
    copied Linux? How can they prove in which direction any alleged copying
    occured? The only thing they have proven themselves to be are lying, sneaky,
    disorganized, unintelligent, and highly suspect amature extortionists.

    There is one thing I haven't considered: maybe Darl McBribe et al are actually
    Comedians?

    ragnar

    [ Reply to This | # ]

    Power of magistrate judge?
    Authored by: Anonymous on Thursday, January 15 2004 @ 02:00 PM EST
    Got the link from yahoo board: http://www.utd.uscou rts.gov/judges/qa_magjudge.html

    Main point is:

    Q: What are the inherent powers of magistrate judges?

    28 U.S.C. 636 (a) provides that Magistrate Judges have limited inherent powers including issuance of orders of release or detention of persons pending trial, entry of sentence for a petty offense or for a class A misdemeanor in a case in which the parties have consented; administration of oaths and affirmations, and taking acknowledgements, affidavits, and depositions.

    Local Utah Rule DUCivR 72-2 authorizes magistrate judges to:

    1. Grant applications to proceed without prepayment of fees;
    2. authorize levy, entry, search, and seizure requested by authorized agents of the Internal Revenue Service under 26 U.S.C. § 331 upon a determination of probable cause;
    3. conduct examinations of judgment debtors and other supplemental proceedings in accordance with Fed. R. Civ. P. 69;
    4. authorize the issuance of postjudgment collection writs pursuant to the Federal Debt Collection Act; and
    5. conduct initial scheduling conferences under Fed. R. Civ. P. 16.
    Seems like Judge Wells does not have much power over SCO, thus SCO's bold strategy. Things like "dismissal of case" and "summary judgement" are still way off in the future.

    [ Reply to This | # ]

    Almost certainly ?????
    Authored by: blang on Thursday, January 15 2004 @ 02:37 PM EST
    16. Our engineers have reached the conclusion that parts of Linux have almost
    certainly been copied or derived from AIX or Dynix/ptx. In those cases,
    confirmation of this opinion would require access to more current versions of
    AIX and Dynix/ptx.

    This statement falls way short of specificity. It is basically saying that they
    don't have proof, but they are pretty sure they will find proof if they get
    more information from IBM. However, the statement does not say WHAT they base
    this opinion on.

    Judge Wells will ask:

    1) Exactly what was this opinion based on?
    2)Did the code look similar? Identic?
    3)Does SCO really think that the court will be satisfied with an opinion from
    anonymous sources?
    4)Why would SCO need more versions of AIX and Dynix to make their case?
    5)The only way SCO could make such a claim, was that they already must know what
    is in the versions of the code not already provided. Where did they obtain that
    code?
    6)If SCO knows the answer to these questions, why did not SCO include that
    information in either the submitted discovery, or in the affidavit?
    7) Is mr Tibitts aware that his affidavit is sworn, and that he would face
    charges of perjury if found to have made untruthful claims?








    [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts - WRT item 17 (and 16)
      Authored by: Anonymous on Thursday, January 15 2004 @ 03:14 PM EST
      17. In some additional cases it was also possible to infer with reasonable certainty from comments in the source code that the engineer who implemented that code had experience and knowledge of the methods, sequence and structures used in either or both of Dynix/ptx and AIX. Confirmation of this would require depositions from the IBM individuals involved in programming the actual Linux modules in question.


      As a programmer / software eng, I'd be entirely mortified to learn that ANY member of my team said this. I'll explain a little bit about software design for those w/o a programming backgound to explain why:

      When you design software, you look at the problem that you're trying to solve and decide what you need in a general sense prior to writing _any_ code. If you're working in an OO capable language (C++, Java) you generate classes which have methods/operations associated with them. Let's say, for example, that I'm writing a simulation of a library. A class I probably need would be a book class (the programming representation of a book). My design for this class would specify what makes up a book, and what you can do with one. Here is a brief (incomplete) example of a specification for the class:

      CLASS NAME: Book
      DESCRIPTION: This class is a representation of a book.
      DATA MEMBERS:
    • String m_title: The title of the book.
    • Page m_pages: A container of Pages. (assume that a Page class has been defined somewhere too).
    • Boolean m_hardback: Notes the type of cover, true for hardback.
      METHODS (OPERATIONS):
    • String getTitle(): Return the title of the book.
    • Page getPage(Integer pageNumber) throws InvalidNumberException: Returns the page by the requested pageNumber (starts at 1, NOT 0). Throws InvalidNumberException. (if, for example the book only had 20 pages and someone requested page 200, the exception would be thrown as a way to detect error conditions).
      ...

      In C, it's a bit different. You'd make a structure book which contains the data memebers, and functions which can do things to the books, but the general idea here is that you have a specification for your program prior to doing any coding. Thus, based on the specifications, you'd generate the code which implements the class. C++ for the Book would look something like this:

      
      ////// header file
      Book.h//////
      
      #include <string> //need string class definition
      #include
      <vector> //container class
      #include "Page.h" //our Page class, not shown
      here
      #include "InvalidNumberException.h" //exception class, not
                      
                         //shown here.
      
      /**
       * This class is a representation of a
      book.
       */
      class Book
      {
        public:
          /**
           * Default constructor.  Makes a
      new book.
           */
          Book();
      
          /**
           * Return the title of the book.
          
      */
          std::string getTitle();
      
          /**
           *  Returns the page by the
      requested pageNumber.
           *  Numbers start at 1 NOT 0.  
           *  Throws
      InvalidNumberException.
           */
          Page getPage(int pageNumber)
           
      throw(InvalidPageException);
      
      ...
      
        private:
      
          /**
           * The title of the
      book.
           */
          std::string m_title;
      
          /**
           * A container of Pages. 
      Using a vector as container.
           */
          std::vector<Page> m_pages;
      
         
      /**
           * Notes the type of cover, true for hardback.
           */
          bool
      m_hardBack;
      };
      
      
      ///// implementation file Book.cpp /////
      
      #include "Book.h"
      //include Book header
      
      Book::Book()
      {
        //do nothing really, make an empty
      Book
      }
      
      std::string Book::getTitle()
      {
        return m_title;
      }
      
      Page
      Book::getPage(int pageNumber) throw(InvalidPageException)
      {
        //check to see if
      page number valid
        if (pageNumber < 1 || m_pages.size() < pageNumber)
       
      {
          InvalidPageException iPE;
          throw iPE;
        }
        //return the requested page
      number.
        //use page numbering starting at 1, not 0 in this case.  
        return
      m_pages[(pageNumber -1)];
      }
      
      ...
      
      (sorry for the odd new lines in the example, not sure how to fix that...)
      In Java the code would look almost identical to this. In almost ANY implementation from a generic design (as in the NUMA or JFS stuff), you'll find common comments as they are listed in the specification, especially WRT header files. Thus, common comments, structure/class names, methods, etc. DO NOT IMPLY that one implementation of a specification was copied from another. As a matter of fact, if the comments were not nearly identical (being derived from the same specification), someone wasn't doing their job right. Add into this that depending on how deep the analysis and design went (for example spelling out the steps needed to accomplish method XXXX), you'll have identical comments in the implementation files, not just the header files. Again, this is common in the industry. It is accepted as the _right way_ to do things when designing / implementing software. To suggest that similar comments, structure names, etc imply copying (or prior knowledge of AIX/Dynix) shows a complete lack of understanding WRT software development practices. I don't need to know squat about AIX or Dynix, but if I'm following the same specification that was used when making the AIX or Dynix code, it should be expected that they look similar.

      -Tomcat

      [ Reply to This | # ]

    • Pathetic
      Authored by: Cesar Rincon on Thursday, January 15 2004 @ 03:14 PM EST

      From the declaration of Mr. Tibbits:

      14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

      Also:

      15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

      Compare to Darl on this ZDNet interview on August 15, 2002:

      All of the subsequent Unix licensing that happened broke off from [SVRx]. We own all that intellectual property and have relationships with a lot of vendors. If people want to come and see the original HP-UX source code, they come to us. We get several dozen requests a month just to come in and see AIX or HP-UX code base. And C++ programming languages, we own those, have licensed them out multiple times, obviously. We have a lot of royalties coming to us from C++.

      You know, this is not funny anymore. Not even annoying. It is just sad.

      [ Reply to This | # ]

      JFS did not come from AIX!
      Authored by: dcs on Thursday, January 15 2004 @ 03:26 PM EST
      I recall quite clearly there were much misgivings about the JFS donated by IBM to Linux because it was based on the OS/2 version and not the AIX version. They are very different versions, and many claimed the OS/2 version was much slower.

      In fact, I googled a bit, and her e is one reference.

      Feel free to google for yourselves (something SCO should have done :).

      ---
      Daniel C. Sobral

      [ Reply to This | # ]

      What constitutes the SCO universe.
      Authored by: hairball on Thursday, January 15 2004 @ 03:55 PM EST
      I am getting a little confused here. I know the SCO name has passed through
      several hands. We also talk about Old SCO and New SCO. Caldera fits in there
      somewhere as well.

      How big is the SCO universe (SCOniverse) and what is it made up of. How did it
      come to be - what companies were consumed in its creation.

      Which part of the SCO-Universe originally produced the software released under
      the GPL?

      Any pointers

      Cheers

      ---
      Cheers,
      Hairball Lightspeed

      From Here to Eternity in 15 seconds.

      [ Reply to This | # ]

      Fifth Type of IP
      Authored by: Anonymous on Thursday, January 15 2004 @ 04:28 PM EST
      Fifth Type of IP
      by: crunchie812 (51/M/Key Largo)
      01/15/04 02:15 pm Msg: 81443 of 81518

      Yeah, you thought there were four. But in the past year a fifth form of
      Intellectual Property (always Capitalized) has sprung into prominence, SCO IP.
      SCO IP has the following characteristics:

      1) It is Valuable, i.e. has vast monetary worth.

      2) It absorbs and ingests other forms of IP on contact. Much like an amoeba
      feeding.

      3) It has priority over all other forms of IP. When you have SCO IP, all other
      claims are irrelevant.

      4) It is transmutable, taking on the aspect of Copyright, Patent, Trade Secret,
      or Trademark at will and as needed. It can be any combination of the above, to
      fit the circumstance.

      5) It is non-specific. Very non-specific. A simple declaration such as
      "It's in there" is sufficient to establish your claim. "It's
      a no-brainer" clinches the deal.

      6) It is not subject to the laws of time. Having SCO IP allows you to claim all
      that has gone before, rather than it being prior art.

      7) It is endlessly quoteable. Possession of SCO IP entitles you to daily quotes
      in IT rags.

      8) It is unchallengeable. You can't challenge it, because you are not allowed
      to know what it is. It's SCO IP, that's all you need to know.

      9) You have to pay for it. No free lunch, even if it is your lunch to begin
      with.

      10) It is, unfortunately, exclusive to SCO. If you are not SCO, you cannot have
      SCO IP.

      http://tinyurl.com/2fv8g

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: grouch on Thursday, January 15 2004 @ 04:41 PM EST
      I've read a lot of comments to this article which predict that SCO will incur
      wrath and destruction from the court. I'll be surprised if the court does
      anything beyond request that SCO please file some more papers by springtime.

      To date, SCO has been entirely free to make any claims they please, regardless
      of damage to others. Is there any evidence, anywhere, that any U.S. court or
      officer of any U.S. court has in any way hindered SCO's PR campaign? It has
      been nearly a year. The only major hindrance to SCO has been the
      awareness-raising produced by Groklaw. The only court I've seen take any
      worthwhile action has been the German court which fined SCO for failure to
      remove false claims from a website. I see nothing to make me believe there will
      be any justice forthcoming from the U.S. judiciary.

      Many years ago, as a teenager, I was involved in a minor court case. It was a
      battle between the insurance companies representing two teenage boys involved in
      a car wreck. I was the sole passenger in the car that was hit. As my friend, the
      driver, was turning right, the other car attempted to pass on the right. The
      point of impact was just behind my seat. However, the other driver's father
      filed suit, claiming my friend failed to give a signal. When the smoke cleared
      in court, they won. My friend's father, owner of several local small businesses
      and no stranger to legal proceedings, commented to me after the proceedings,
      "Keep this lesson in mind. He who files first, usually wins."

      SCO filed first. So far, they've been winning all the rewards and none of the
      punishment. I expect them to receive nothing more than continued license to pump
      the PR machine. Eventually, they will declare bankruptcy or use some other legal
      escape route, then walk away with the pockets of the perpetrators bulging with
      the money from the gamblers on Wall Street.

      [ Reply to This | # ]

      Delaware Law
      Authored by: Anonymous on Thursday, January 15 2004 @ 06:06 PM EST
      IANAL...but I urge someone who is to take this further. SCO is incorporated in Delaware, and so is subject to the laws of that state governing corporations: (Title 8, Chapter 1, Subchapter IV of the Delaware Code. The board of directors has certain responsibilities to the corporation. Ryan E. Tibbitts said in his declaration to the court that he tried to reach several board members, but was unable to do so due to the Christmas holiday.

      Now it seems to me that every member of SCO's board of directors should have been very aware of the importance of SCO's legal response, and of the deadline by which it was due. Any board member NOT aware of this would be negligent in his duties.

      So my question is, by not being accessible by the corporate lawyer during this period, were the board members negligent? If so, are they then subject to stockholder lawsuits WITHOUT the cover of corporate indemnification?

      After all, by not being available they had a direct negative impact on SCO's reply to the court...and if the court hammers SCO, bear at least part of the blame.

      [ Reply to This | # ]

      • Delaware Law - Authored by: Anonymous on Friday, January 16 2004 @ 12:30 AM EST
      Re: "In fact, this is a job for Superman."
      Authored by: Anonymous on Thursday, January 15 2004 @ 06:20 PM EST
      No, Superman was a champion of justice. This, my friend, is unjust.

      [ Reply to This | # ]

      Visions of summary judgement
      Authored by: dwandre on Thursday, January 15 2004 @ 06:50 PM EST
      I didn't see much specficity in Tibbitts' Declaration. If the responses to
      the interrogatories is that sketchy I'd say they failed the specificity test
      big-time. It would be nice if IBM requested that the Linux files be removed
      from the protective order because it's all published anyway. That way we'd
      know whether SCO identified specific files and how many. If SCO didn't specify
      any files, it would seem IBM's next move is a motion for summary judgement. I
      would think IBM would move for summary judgement anyway based on the GPL but one
      can't quibble with their lawyers' success so far. Are any bookmakers taking
      odds on whether Boies will show for the January 23rd hearing? I'll bet he'll
      only show for Judge Kimball.

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Thursday, January 15 2004 @ 07:00 PM EST
      What a sec.


      "14. I have been informed by SCO's engineers and consultants that since
      the only version of AIX source code that was available for comparison purposes
      is several years old, and predates most of IBM's contributions to Linux, it was
      not possible to directly compare IBM's contributions to Linux with the most
      likely source of those contributions, namely the missing versions of AIX
      (including the most recent versions).

      How can they say IBM copied code to Linux when they haven't the code to compare
      it with?!?

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Thursday, January 15 2004 @ 07:07 PM EST
      Weren't they the ones that brought the suit? You would think that if you were bringing an intellectual property suit, that you would've already prepared a list of the code which you believed had been infringed. Why would SCO wait until Dec. 12 to start preparing those materials?

      They seem to be hoping that the judge will agree that they get to see some of the AIX/Dynix code before they have to produce any evidence. However, the judge wasn't really buying that line at the last hearing. Doesn't look good for SCO. It's hard for me to understand how they think this is a good move.

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Thursday, January 15 2004 @ 07:52 PM EST
      Is it just me, or does everybody keep seeing Tibbitts and thinking Tidbits?

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anhone Mouse on Thursday, January 15 2004 @ 08:26 PM EST
      Is it me or is SCO just trying to cloud the dictonary definition of
      "derived" ?

      Definition "Formed or developed from something else. Not original.
      "

      I.E.

      You take a little UNIX code add a little IBM code and you get the
      "derived" work called AIX.

      Thats it, AIX in itself is derived from a combination of both the IBM and UNIX
      codebases, the original IBM code is not.

      Whilst not entirely usefull on its own, the IBM "spice" is in itself
      not derived (it could only be considered "derived" when integrated
      with the UNIX parent), and as it is not "derived" it is not within
      SCO's remit to claim ownership.

      *IF* IBM were to release code that was from the UNIX parentage, then SCO *WOULD*
      have a case. Since SCO has all the relevant "original" UNIX code
      allong with the freely available LINUX sources, and have yet to find a single
      instance of it within the LINUX codebase (and can show no UNIX parentage for the
      IBM code added to LINUX), surely these is no case to answer.

      The only question is :-

      1) *WHEN* will IBM "sucker punch" SCO back into the dark ages ?

      It would seem that this "non-compliance" compliance *COULD* give IBM
      the needed "arm room" to deliver the knockout blow.

      That is if the Judge doesn't do it first.

      (N.B. The same argument can be used for the Dynix/ptx code)

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: brenda banks on Thursday, January 15 2004 @ 08:36 PM EST
      does declaration = affadavit?


      ---
      br3n

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Thursday, January 15 2004 @ 08:44 PM EST
      Correct me if I'm wrong, but IBM buys sysV license. Makes additions to code.
      Those additions they make, don't they have the copyright on? So say for a
      simple example they get code for the utility ls. And they add the -h option to
      ls. They still don't have the copyright on ls, but they do have the copyright
      on the code that makes -h? If this is the case, why would SCO need AIX source?
      They don't own 100% of the AIX source and any copyright claims could only be
      against SysV code, which they fully have.

      [ Reply to This | # ]

      Isn't this the schmendrick that took three pages to claim _header files_?
      Authored by: dmomara on Thursday, January 15 2004 @ 09:25 PM EST
      This drivel must be at least twenty times as inane.

      [ Reply to This | # ]

      Fiduciary Duty
      Authored by: red floyd on Thursday, January 15 2004 @ 09:32 PM EST
      IANAL and IANACPA.

      That said...

      Isn't the unavailability of the directors due to the holidays a breach of their
      Fiduciary Duty? I mean, there's only this $3Billion lawsuit, a court order
      with a tight deadline, and they're FREAKIN' OUT OF TOUCH FOR 10 DAYS??????

      If I were RBC, I'd be screaming about this....


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

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Thursday, January 15 2004 @ 09:40 PM EST
      "Our engineers have reached the conclusion..."

      By stating they had "engineers" involved in making these conclusions, SCO's engineering notebooks are now in play. The analysis that led to the enegineers' conclusion is pertinent to the case. Certainly SCO has competent legal counsel, counsel who would have told their client that they will need written records to support their conclusions in court. Certainly SCO realizes that everyone in their company may be deposed under oath, and supporting documents will be brought to light. All of the documents.

      Disclaimer: I have experience with IBM patent attorneys. I'm a named co-inventor on a patent assigned to IBM. I know IBM's legal department insists on carefully maintained engineering notebooks. SCO will soon know why!

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Steve Martin on Thursday, January 15 2004 @ 09:42 PM EST

      16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.

      Holy Cow... did Tibbitts actually file a paper with the court saying that their case was based on their opinion?? Ouch!

      ---
      "When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: wharris on Thursday, January 15 2004 @ 10:15 PM EST

      I am not a lawyer, but I would like to join in the speculation everyone has about "what is next". I do not think that IBM will try to find SCO in contempt of court; rather I think it likely that they will accept SCO's answer as a full and complete disclosure of all the evidence they have (reminder: None of us have seen SCO's “over 60 pages” of evidence).

      Lots of people have speculated that IBM's next move will be to file for dismissal, but I would like to speculate instead that they will file for summary judgement on their trade libel. Brief outline:

      Darl said that a team of MIT mathmaticians have performed spectral analysis and found significant IP violations in Linux. (attached media file). SCO was ordered by the court to provide a list of all Linux lines it considered to violate it's intellectual property as well as all documents supporting its claim. (attached court order). Neither SCO's 60- page collection of evidence (remember we haven't seen this yet, I could be wrong) nor SCO's list of evidence it could not provide (attach Tibbets's letter) include a report by MIT mathematicians nor any report mentioning “specteral analysis". Therefore, for the purpose of this court case, no such report exists. Thus, SCO is guilty of providing false and misleading information which damages our Linux campain. We ask the court to award us $100,000,000 in damages, which correspond to 0.05% of our annual sales. We also ask for tripple damages due to SCO's outrageous behavoir, and for compensation of our legal expenses.

      SCO has a few ways it can contest this request for summary judgement, none good:

      1. Oops! When the court ordered us to turn over all our documents, we didn't realize it meant THOSE documents. Result: Slam dunk case of contempt, based on SCO's own statements.
      2. We are happy to inform the court that one of our wayward directors has returned; as promised we now hand over the files that director had. He was the only one in our entire company who knew anything about our much-publicised MIT study. Result: Less likely to be an immediate finding of contempt, but it does strain the credibility. Both of these cases are likely to result in another 30-day discovery delay ("And we really mean it this time!"). IBM can then file another summary motion, or just keep the same one since it is unlikely that whatever study was performed matched Darl’s confident projections.
      3. Alternately, SCO can argue on damages. Result: SCO admits lying about evidence; investors and (unlikely IMHO) analysists reconsider their support.

      [ Reply to This | # ]

      SCOX definition of "Derived" code increasingly clear
      Authored by: LionKuntz on Friday, January 16 2004 @ 12:52 AM EST
      Everything I have digested so far, both from here and elsewhere, leads me to the
      conclusion that SCOX has an unusual definition of "derived works".
      SCOX has licenced SysV Unix to IBM (for use in Aix to be licenced out by IBM),
      but has stipulated in their contract that any modifications needed to be made to
      *X is to be kept confidential, and classified as "derived" works
      from the SysV original code.

      By SCOX's definition, original work by IBM, which generically can be added to
      Aix/Dynix, once it is added becomes "derived works" and subject to
      control of SCOX contract terms.

      By SCOX definition, regardless of whether the generically useful code is first
      used independent of *X, once incorporated it becomes perpetually obligated under
      the contract terms.

      This is why they need the more recent, not the older, versions of Aix/Dynix.
      Under their definition, they didn't licence a product (Unix SysV), but instead
      they formed a perpetual partnership with IBM where everything which touches
      their code becomes SCOX property under SCOX contract terms.

      While a court judge and/or jury is not likely to buy this argument, this is
      SCOXs argument. SCOX does not need to invent JFS to own it, because their serf
      IBM passes through ownership of everything IBM creates that merely touches SCOX
      code. If IBM invents JFS and uses it in Aix/Dynix, then SCOX forever after owns
      it by contract right, not copyright, and therefore owns it in Linux or any place
      else where it is used.

      SCOX beliefs about what their contract rights are is becoming increasingly
      clear. I doubt that the judge will grant this extension as the SCOX arguments
      are not credible -- they don't need new Aix/Dynix source code under normal
      circumstances that the rest of the world goes by. This case will be dismissed,
      with predjudice, on Janary 21st, 2004, because courts in the USA do not enforce
      serfdom.

      [ Reply to This | # ]

      I Thought They Knew IT already!
      Authored by: Anonymous on Friday, January 16 2004 @ 05:47 AM EST
      First it was a contract dispute and then it was copyright infringement... WOW!
      First they were talking about knowing what they say IBM has illegaly donated to
      LINUX even publicising it but then again how did they knew about it if they are
      claiming now that they don't have the latest copy of the code IBM gave them?
      ARE THEY DREAMING or THEY'RE JUST IMAGINING THINGS HOPING ENOUGH FOOLS BELIEVE
      THEM so THEY CAN HAVE SYMPATY FROM EVERYBODY. my goshhhhhh! unbelievable!

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Friday, January 16 2004 @ 07:03 AM EST
      Well, yes and no. A dismissal of the breach of contract suit would not
      necessarily bring an end to SCO's posturing or "Linux Invoices".
      They might just start suing the little guy.

      [ Reply to This | # ]

      SCO sort of thinks there are Linux IP violations, but isn't quite sure!!
      Authored by: Anonymous on Friday, January 16 2004 @ 07:28 AM EST
      "Our engineers have reached the conclusion that parts of Linux have almost
      certainly been copied or derived from AIX or Dynix/ptx. In those cases,
      confirmation of this opinion would require access to more current versions of
      AIX and Dynix/ptx," says Tibbitts.


      http://www.theregister.co.uk/content/53/34924.html

      [ Reply to This | # ]

      Control issue Quesion?
      Authored by: Anonymous on Friday, January 16 2004 @ 08:12 AM EST
      It's clear that SCO can't excercise copyright ownership/control over IBM code,
      and thus can't go after Linux vendors/users for selling/using something written
      from scratch by IBM. They may have a breach of contract case against IBM if
      they can show that IBM handled a "derivative work" contrary to the
      terms of the contract, even if IBM holds exclusive copyright and/or patent
      rights to the work.

      [ Reply to This | # ]

      Infantile SCOG
      Authored by: jdg on Friday, January 16 2004 @ 09:12 AM EST
      SCOG's contentions about code and its ownership are like only one set of rules
      that I know of: The toddeler's rules of ownership:

      1. If it is mine...
      2. If I hold it, it is mine
      3. If I see it, it is mine
      4. If I want it, it is mine
      5. If I ever though about it, it is mine
      etc.

      To these, SCOG wants to add:

      n. If you ever thought about it, even if I never thought about it and even if I
      have no idea what it is and cannot even understand it, it is mine.


      Father of a one-year old and a seven-year old


      ---
      SCO is trying to appropriate the "commons"; don't let them

      [ Reply to This | # ]

      Ostrich Defense
      Authored by: Anonymous on Friday, January 16 2004 @ 09:41 AM EST
      Skimming over TSCOG's responses, it seems TSCOG simply does not want to
      recognize IBM's counter-suits. Stating it is a contracts case, not copyright,
      and therefore code is simply not necessary.

      kaycee77025

      [ Reply to This | # ]

      • pay phone - Authored by: Anonymous on Friday, January 16 2004 @ 09:51 AM EST
      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Friday, January 16 2004 @ 12:13 PM EST
      I haven't seen anyone else point this out, but... If I remember correctly, all
      the Intellectual Property SCO is saying was stolen (JFS, NUMA, etc...) are
      technologies SCO Unix is struggling with or has struggled with. From the
      timelines I've seen SCO has been last to market with any technologies similar
      to these.

      Just a comment that's more of a question. Doesn't it seem like SCO wants the
      latest AIX code to do some stealing of their own?

      To be sarcastic it almost seems like SCO is saying "I need the code
      you've developed to prove it's mine."

      Someone please correct me if I'm completey off my rocker.

      Nathan R.

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: uniques on Friday, January 16 2004 @ 03:32 PM EST
      Looking forward, what will happen in the event that SCO’s claims end up
      unproven.

      As an open source developer, and a proponent of open source code usage with in
      the private sector – I feel that SCO has done considerable damage to the
      reputation of the open source movement. Private sector corporations are again
      hesitant to go the open source route and linux seems to be a dirty word.

      What recourse will "WE" open source developers have open to us – Is
      there a possibility of a class action(?) by the open source world against SCO
      ?

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Friday, January 16 2004 @ 09:46 PM EST
      Perhaps they inted to ouright copy the "infringing code" from the
      code they expect to receive from IBM, and then claim it was IBM who copied
      first.... Is this at all possible?

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Friday, January 16 2004 @ 09:51 PM EST
      Just out of curiosity, as I am as far away from the legal community as you can
      get without being a criminal...Is SCO asking IBM to give it the information to
      make their (SCO's) case? Is there a legal requirement to convict yourself,
      assuming the only smoke around this case isn't SCO setting itself on fire?

      [ Reply to This | # ]

      Declaration of Ryan E. Tibbitts
      Authored by: Anonymous on Monday, January 19 2004 @ 02:12 PM EST
      New story on Computer Business Review online
      (http://www.cbronline.com/latestnews/912a9bf8f52806f680256e20003b1072 - may
      require registration) is quite critical of SCO's case.

      [ Reply to This | # ]

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