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Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Friday, February 06 2004 @ 02:03 PM EST

Cody Hilton sends us this first quick word:

"I just got out of the hearing. The outcome is Judge Wells will be issuing an order within the next week. She wanted to take her decision under advisement.

"Some quick observations. Mr. Marriott argued for the side of IBM again and Mr. Weiss argued for SCO. Counsel were in chambers for 28-30 minutes. IBM stated that SCO had not complied with the Judge's order for discovery. SCO has said they have and now want their motions granted. Darl was not in attendance."


  


Judge to Issue Order in a Week: IBM Says SCO Didn't Comply | 346 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
So.... Now it's time for the press conference:^)
Authored by: Anonymous on Friday, February 06 2004 @ 02:08 PM EST
I for one cannot wait to see how they spin this up. The "coin-toss"
sound bite is soooo last month:)

[ Reply to This | # ]

  • Correction - Authored by: hhind on Friday, February 06 2004 @ 03:30 PM EST
Who thinks they're going to win this round?
Authored by: maroberts on Friday, February 06 2004 @ 02:08 PM EST
Is IBM or SCO sounding confident?

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 02:09 PM EST
I wouldn't be surprised if the reason was that

(1) Either she couldn't state a decision with a straight face and voice,

(2) Was too steemed to be sure of not injecting 'extraneous' comments and/or
profanity; like the Judge Jackson in the Microsoft antitrust trial,

or

(3) Both of the above.

[ Reply to This | # ]

AAArrrgggggg....
Authored by: Anonymous on Friday, February 06 2004 @ 02:10 PM EST
The suspense is killing me....

...make it stop!

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 02:10 PM EST
What happens now? Judge Wells rules that SCO did indeed not comply with
discovery. Then what?

What is the next "deadline" for SCO to do something?

Was the copyright claim allowed?

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: irieiam on Friday, February 06 2004 @ 02:10 PM EST
As this drama continues, I look more for news from IBM than SCOG. Darl and Co.
never seem to say anything other than the expected = delay, put-off, ignore,
etc..

For them to say they have complied with discovery is nothing less than expected.
Why should we expect anything other than their 'stupid card'?
"We didn't know."
"We thought we did.."
"Blah blah blah.."

*sighs*

What does this _still_ mean for my business: nothing. My clients could care
less untill a judge, in writing says otherwise. I may have retired by then...

---
-irieiam

The first requisite of Freedom is choice. The second would have to be
availability of information. Something bless the internet...please.

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 02:11 PM EST
the suspense is starting to get to me

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Scriptwriter on Friday, February 06 2004 @ 02:12 PM EST
Just a note that the #groklaw chat room (see below for the server name) was full
to overflowing, with over 200 people there at times. People were coming over
from the Yahoo SCOX discussion board and who knows where else.

I also noticed some IBM, Novell and Canopy addresses in the list. :)

The room was full enough to make it difficult to follow the proceedings at
times. In the future we may need to moderate discussion so only whoever is
providing the play-by-play from court can post to the channel. Yes, there are
that many people interested in this case.

---
They'll take my copy of Linux when they pry it out of my cold, dead flippers.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 02:13 PM EST
Back from the courthouse.

1st impressions = hurry up and wait.

Judge Wells is taking the motions to compel under advisement. IBM announces the
SCO failed to comply with the court order. Judge asks IBM if SCO mostly
complied. IBM says much is still lacking.

SCO asks for AIX all versions and works in progress. They say that they need it
to see if IBM has released code to Linux. Mr Marrott for IBM produces press
releases showing that SCO has said that HP and Sun are in compliance with the
license. Mr Marrott asks the Judge how SCO can no this without the source code
of HPUNIX or Solaris.

SCO wants AIX but they are willing to say HP and Sun are clean without a need
for their source code.

Judge is going to take matters under advisement and publish her rulings later in
the week.

The Judge did ask SCO how much more time they would need to comply fully. SCO
says about one more month. Judge Wells also asked IBM how long it would take
for them to supply what SCO is asking for? Mr Marrott said about 2 weeks.

My feelings are kind of gloomy and dark. I think this is going to drag out for
quite a long time.

Judge Wells did call all council into her chambers for over a half hour at the
start of the hearing. I would have loved to be a fly on the wall in there. I
would much rather been in IBM's shoes than SCO's.

I will post more thoughts as they come to me.

Karl

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: bcomber on Friday, February 06 2004 @ 02:13 PM EST
How did I know that was going to happen? We are going to be in the dark for a
while longer. The suspense is killing me. When this flops, SCO is toast. And
Darl is a goner. No doubt about it.

Mike

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 02:27 PM EST
Since IANAL, can someone tell me how the poster of this article arrived at the "one week" timetable?

I applaud the work of those kind folks who attended the hearing, and look forward to the "official" word.

[ Reply to This | # ]

OT: Darl - We have a copyright claim against IBM
Authored by: Anonymous on Friday, February 06 2004 @ 02:37 PM EST
http://www.linuxworld.com/story/43584.htm

The SCO Group has amended its $3 billion worth of charges against IBM and, according to SCO CEO Darl McBride, has added copyright complaints to its largely breach-of-contract suit.

McBride suggested that IBM was making more of SCO's original misappropriation of trade secrets charge than SCO likes and that the copyright issue would somehow get SCO back in the direction it wanted to go.


Gee, IBM's lawyers addressing SCO's complaint (trade secrets)... who would have ever expected that!

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: siddod on Friday, February 06 2004 @ 02:46 PM EST
Just back from the courthouse. My cow-orker and I wore bright hawaiian shirts;
I think it was clear that we weren't there rooting for SCO.

A couple of thoughts:

1. This is going to come down to a definition of what "derivative
works" means. Are AIX and Dynix derivative works of SysV? This is why SCO
keeps demanding for every version of AIX known to man: they want to be able to
trace the evolution of AIX from SysV so that they can prove that AIX is a
derivative work. If they can prove that, then *anything* that IBM has donated
to Linux from AIX will be a problem. I wonder whether they're differentiating
from userland and kernel, and whether they care.

2. IBM delivered a knockout punch in the reply to SCO's request for every
version of AIX. They produced documentation that showed that SCO has publicly
stated that Sun and HP are in full compliance with their licensing agreements.
How, IBM asks, can SCO make that statement without perusing the millions of
lines of Solaris or HP-UX code? If they can make that statement without copies
of Solaris or HP-UX source code, then why do they need AIX source code? SCO
responded that they can make this statement because Sun and HP don't contribute
to Linux. IBM then provided documentation showing that HP certainly has and
does contribute to Linux.

3. Just an observation. The IBM team expends a good bit of effort to provide
supporting documentation and citing case law. SCO spends a lot of time drawing
pie charts and generation charts. Just from the level of professionalism alone,
I'd say that IBM has it zipped up. (I asked Mr. Marriott as he left the
courtroom if it is appropriate to cheer him. He smiled and said thanks.)

4. It was clear again today that SCO would really like for the discovery phase
to last for years. We definitely have our suspicions of why that is. I was
interviewed by KSL radio on the way out and I pointed that out to the reporter.
We'll see if it goes anywhere.

The only thing I can't quite figure out is exactly what Judge Wells wants to
take under advisement before she releases her written order. Hopefully we won't
have to wait too long for that.

derick

---
Windows: No remote holes in almost 3 hours
(Chuck Yerkes)

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 03:12 PM EST
IANAL.

I think that both IBM and the judge want to give SCO every benefit of the doubt
so that when they (SCO) lose they will not have any basis for appeal on
procedural grounds.

lvteacher

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: robvarga on Friday, February 06 2004 @ 03:14 PM EST
Actually, if it were only feelings that mattered, a (maybe not exact) quote from
one of my favorite fiction writers would sum the feelings quite appropriately:

"... a particularly repulsive vermin which has made itself too
obvious."

Ok now, who knows the origin of the quote? :)

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 03:18 PM EST

``Darl was not in attendance.''

Of course not. He was consoling Kevin after he was told at the last minute that he wouldn't be arguing the case before Judge Wells today.

[ Reply to This | # ]

Christmas vacation
Authored by: eric76 on Friday, February 06 2004 @ 03:26 PM EST
Did she ask SCO whether or not they could have complied if they hadn't taken so
long off for Christmas?

[ Reply to This | # ]

  • Nope - Authored by: Anonymous on Friday, February 06 2004 @ 04:17 PM EST
Waiting for SCO press release
Authored by: Thomas Downing on Friday, February 06 2004 @ 03:27 PM EST

SCO said something about a press conference/release after the hearing. Any body hear when?

Following that train, I looked at the SCO web site to see what's new, and found a couple of amusing things. Selecting Company/PressRoom from the menu at the top takes you to ir.sco.com. This appears to be a MS IIS server, and it's having problems.

As a result, I got an error saying that the requested document was not found, and that if it was a Linux document, contact the Linux Documentation Project. Bet that's a left over!

Also, the poor IIS server is sometimes sending out invalid HTTP header information, and badly formatted headers as well. Now this is not a machine that was targeted by MyDoom

The most fun is that the IP for ir.sco.com is 170.224.5.43. This is in a netblock registered to Sequent Computer Systems, tech contact, IBM.

---
Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc.

[ Reply to This | # ]

The lawsuit claim is now up to $5 Billion!
Authored by: Anonymous on Friday, February 06 2004 @ 03:31 PM EST
http://zdnet.com.com/2100-1104_2-5154719.html

[ Reply to This | # ]

SCO adds 2 billion - now 5 billion
Authored by: Anonymous on Friday, February 06 2004 @ 03:32 PM EST
http://zdnet.com.com/2100-1104_2-5154719.html

The amended suit drops earlier allegations that IBM misappropriated SCO trade
secrets through its Linux development, a substantial feature in the original
complaint. The case now rests on claims IBM violated its contract by creating
derivative works based on SCO-controlled code, plus the new copyright-related
claims.

An IBM representative said the new claims and the jettisoning of the trade
secret allegations shows the weakness of SCO's position. "SCO's proposed
copyright claim is merely a follow-on from its prior position that it had a
right to terminate IBM's Unix license, with which we strongly disagree,"
the company said in a statement. "IBM continues to believe (SCO's) claims
are without merit...and will continue to pursue its own counterclaims."

The two new causes of action also relate to behavior following the cancellation
of IBM's contract. The claims argue that IBM on behalf of itself and Sequent, a
server company IBM acquired in 1999, breached sublicensing agreements by
continuing to distribute its AIX Unix software after the cancellation of the
contract. "From and after the AIX termination date, all distributions of
AIX by IBM are in violation of the sublicensing agreement," according to
the suit. "IBM has disregarded and continues to completely disregard and
repudiate its obligations under the sublicensing agreement, to plaintiff's
substantial, continuing and ongoing damage."

The amended suit also drops allegations that IBM violated SCO trade secrets and
incorporates new claims surrounding SCO's ongoing dispute with Novell, from
which SCO purchased its rights to Unix. The amended suit says IBM encouraged
Novell to make copyright claims against SCO as part of a campaign to undermine
SCO's position. "IBM had induced or otherwise caused Novell to take the
position that Novell owned the copyrights," according to the suit. "At
IBM's improper urging and inducement, Novell now claims that it can amend,
modify and waive any and all terms of the software and sublicensing
agreements."

The amended suit outlines in greater detail specific Linux elements SCO believes
were illegally derived from Unix, including scalability and performance
improvements, error-logging components, clustering support, threading, the AIX
journaling file system and the NUMA scheduler.

The amended suit also includes new allegations that IBM violated its SCO
contract by improperly exporting Unix software to India and countries subject to
federal export controls, including Iran, North Korea and Cuba, echoing recent
comments by SCO CEO Darl McBride that characterized the spread of Linux as a
threat to national security.

[ Reply to This | # ]

OT: Harvard Webcast Up
Authored by: grundy on Friday, February 06 2004 @ 03:44 PM EST
The webcast of McBride at Harvard Law is now available.
An hour and 40 minutes of streaming Real One.
Let's not all watch it at once.

[ Reply to This | # ]

Post-hearing discussion with Kevin McBride
Authored by: swillden on Friday, February 06 2004 @ 03:45 PM EST
After the hearing (which was very entertaining, and is well-represented by the posts so far), a group of F/OSS advocates ended up chatting in the hall with Kevin McBride. He asked us all several questions about our opinions on the case and open source vs. closed source and seemed surprisingly sincere in his interest. He also mentioned that he's personally concerned about the implications that F/OSS has on national security. He asked everyone there not to "put this on slashdot", apparently referring to one specific concern he had. I hope that my interpretation of his request is correct because I'm trying to respect it.

Without getting into any specifics, the general notion is that if software is proprietary, governments can more easily control its distribution, making it possible to prevent bad guys from getting hold of it.

I can see numerous problems with that argument, but what interests me is his interest in it. I wonder if it's truly just a personal concern, or if he was floating an idea that SCO may try to exploit in future press releases. If it's the latter, it would probably be a good idea for us to discuss our responses pre-emptively.

[ Reply to This | # ]

SCO reportedly wants to drop all of its Intellectual Property claims
Authored by: Anonymous on Friday, February 06 2004 @ 03:50 PM EST

SCO's original complaint against IBM, and the first amendment to it, made exactly one intellectual property claim: misappropriation of trade secrets. There were no claims of violation of copyrights, patents, or trademarks (the other three types of intellectual property), despite SCO's insistence on using the term "Intellectual Property" as often as possible.

According to David Becker at CNET, SCO says that after eleven months it is now moving to drop that claim.

Undeterred by this utter failure, they will now begin a new intellectual property claim, this one for copyright infringement. Now that they have a proven track record of their IP claims failing 100% of the time, let's hope the world takes this attempt less seriously.

[ Reply to This | # ]

kinda OT but ......
Authored by: savage on Friday, February 06 2004 @ 04:00 PM EST
1.) TCG is *NOT* stupid!

2.) We know they are here at Groklaw reading these posts (and in the irc channel
too :) ).

3.) They have changed a FEW of their actions/wordings/press releases because of
things that have been posted here.

4.) we have correctly identified several things that I.B.M. has brought into
court .... BEFORE the court date.


Can ANYONE please explain WHY they don't use the groklaw resource in court?
I.B.M uses Groklaw in court, half the internet that does 5 min. of research into
the subject uses Groklaw, I know of 2 CEO's that have used it for business
descisions (should we use Linux for mail or not....should we finish this move or
not). Why doesn't TSG? It would give them a better court appearance that would
translate into better press for them. They might even find something that would
stand up in court! But instead they read Groklaw, then walk into court totally
unprepaired.
I like to believe that I can usally figure out motives for why/how people do
things, but I have a baldspot from all the head scratching I've done the past
year over this case.

(yes PJ Groklaw is a resource just like an encylopedia or a dictonary (( witch
is blindingly obvious I need :P )) and is MUCH easier to grok)

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 04:01 PM EST
"frivolous suit definition a lawsuit brought without merit, having no
legal basis, and often brought simply to harass the defendant." -
LegalDefinitions.com

If, as noted in earlier comments, SCOG has really dropped the original claim,
would this be an appropriate time for the judge to declare the suit 'frivolous'?

[ Reply to This | # ]

Was the copyright claim allowed?
Authored by: Anonymous on Friday, February 06 2004 @ 04:02 PM EST
Did the judge accept to add it to SCOG's shopping list?

Was that perhaps what was discussed in chambers?

Does anyone know?

[ Reply to This | # ]

SCO's Audit Positions No Longer Listed
Authored by: jrc on Friday, February 06 2004 @ 04:08 PM EST
Interesting...

The two audit positions that SCO listed in Nov-Dec for staff to monitor
Sarbanes-Oxley compliance are no longer listed. This is from thescogroup.com
site.

- JC



---

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: grouch on Friday, February 06 2004 @ 04:11 PM EST
(I hate my slow connection, I'm always behind).

1. Is SCO trying to drop some complaints now? (I speculated about that
yesterday, based on their wording of the motion, but I have no idea if it's
possible for them to back out this late).

2. If they failed to comply with discovery related to the original, er, amended
complaint, are they allowed to totally switch tracks at this time without
penalty?

3. If they are allowed to rearrange the complaint at this late date, dropping
old and inserting new, does that mean discovery is essentially back to square
one?

There's a lot of devil in the details and my ignorance scares me.

[ Reply to This | # ]

SCO drops Trade secrets are dropped!!
Authored by: tcranbrook on Friday, February 06 2004 @ 04:13 PM EST
In THIS article seems to have had a look at the proposed amended complaint. There are several surprises. The first is that the copyright violations SCO claims are a result of the cancellation of the AIX license. IBM ignorged it.

The two new causes of action also relate to behavior following the cancellation of IBM's contract. The claims argue that IBM on behalf of itself and Sequent, a server company IBM acquired in 1999, breached sublicensing agreements by continuing to distribute its AIX Unix software after the cancellation of the contract. "From and after the AIX termination date, all distributions of AIX by IBM are in violation of the sublicensing agreement," according to the suit. "IBM has disregarded and continues to completely disregard and repudiate its obligations under the sublicensing agreement, to plaintiff's substantial, continuing and ongoing damage."

The second surprise is that they are dropping the trade secrets part ... and that IBM caused Novel to do bad things, like voiding the SCO cacellation and the copyright challenge.

The amended suit also drops allegations that IBM violated SCO trade secrets and incorporates new claims surrounding SCO's ongoing dispute with Novell, from which SCO purchased its rights to Unix. The amended suit says IBM encouraged Novell to make copyright claims against SCO as part of a campaign to undermine SCO's position. "IBM had induced or otherwise caused Novell to take the position that Novell owned the copyrights," according to the suit. "At IBM's improper urging and inducement, Novell now claims that it can amend, modify and waive any and all terms of the software and sublicensing agreements." This is just great! I can't believe it!

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: cleverly on Friday, February 06 2004 @ 04:18 PM EST

I attended the hearing today & got one of the last couple of seats. I couldn't write notes quickly enough to even attempt to keep up with the proceedings, so I settled on just making general notes, and capturing particularly insightful or humerous quotes more or less word verbatim.

A couple of my favorites, from my notes:

  • Judge Welles: (interrupting Mr. Heiss) "you've made your point, I'm just not sure I agree with it." (Whereupon Heiss appeared flustered & Hatch stood & had Heiss step away from the podioum for a moment for a quick private exchange.)
  • Marriott: "their own documents damn the notion that they need code" (referring to SCO's magical ability to discern that HP & Sun's Linux contributions are in compliance with their SysV licenses)
  • Heiss: "Not every contribution by IBM to Linux is public"

After Heiss said that not every contribution by IBM to Linux is public, he then announced that IBM has a revision control server that has every change to every version of AIX that's available to every IBM employee, so they should be able to give SCO access to it. I wasn't able to write this one down verbatim, first because I was stunned at what I'd just heard them allege in open court, and second, because the gentleman to my right leaned over and said to me "I work for IBM and I don't have access to that server."

After the hearing ended, a crowd of about a dozen of us chatted for 15-20 minutes with Kevin McBride. The discussions was polite and cordial with Kevin asking most of the questions.

Towards the end of the hallway conversation, Kevin raised the issue of National Security, saying that without IBM's improper contributions, Linux would not have SMP capabilities. He claims to have specific knowledge & evidence, which he would not elaborate on or reveal about a particular embargoed nation who "has Linux" and could be using it to model biological weapons. He named the country, but said "dude, I'm going to be pissed if this shows up on /.--this is a private conversation", so to honor his request, I'll refrain from naming the rogue state Kevin is worried about. (I was kind of surprised to hear him use the words "dude" and "pissed" in a sentence.) He also said that this same country did not possess UnixWare.

Several people, including Dax Kelson of Guru Labs, and Evan McNabb tried to point out that Linux does not have a monopoly on SMP, and that the United States doesn't have a monopoly on programmers. I asked Kevin if he was ashamed that Caldera had aided in early SMP work in Linux (i.e., by giving Alan Cox an SMP motherboard to work with), and he said that "shame" wasn't the right word, but that they certainly regretted it in retrospect.

[ Reply to This | # ]

Still a stock scam
Authored by: Anonymous on Friday, February 06 2004 @ 04:21 PM EST
This has nothing to do with Linux or IBM or copyrights. It's still a stock scam.
The recent price fall has been stemmed, at least temporarily.

Maybe more spurious SCO motions next week before Judge Wells rules.

[ Reply to This | # ]

Nothing Short of Brilliant
Authored by: titancbl on Friday, February 06 2004 @ 04:24 PM EST
I am extremely impressed with how the IBM lawyers have handeld this case.
They are amazing. They set a trap - producing press
releases/articles in which SCO said HP and Sun are in compliance with thier
contracts/licenses - SCO fell right into it by replying "that is because
they do
not contribute to Linux".

Now, I was in the IRC channel reading live updates, coming from someone in
the hearing with a palm pilot, He said that immediatly after SCO claimed
HP and Sun did not contribute to Linux = Marriot reached back and one of his
associates handed him the printouts of HP's website listing their
contributions to Linux. DOH! Court is adjourned.... SCO, you and your
mickey mouse lawyers may go home now.

No wonder Boise was sitting this one out - he knows they are outgunned and
is try to save face.

[ Reply to This | # ]

U.S. legal system is a laughingstock
Authored by: Anonymous on Friday, February 06 2004 @ 04:26 PM EST
If this doesn't prove that the U.S. legal system is a joke, I don't know what
does.

(Signed, an American.)

[ Reply to This | # ]

OT: Inquirer article
Authored by: sward on Friday, February 06 2004 @ 04:26 PM EST

Apologies if someone already posted this; I haven't been able to keep up with the volume of comments, especially on such a busy day.

There is a nicely cynical article on this fiasco at The Inquirer, and it has nice things to say about Groklaw too.

Somebody gets it.

[ Reply to This | # ]

News about new complaint
Authored by: Anonymous on Friday, February 06 2004 @ 04:35 PM EST
http://zdnet.com.com/2100-1104_2-5154719.html

Article text:

Linux antagonist SCO Group is set to add another $2 billion to its legal claim
against computing giant IBM while changing the scope of the suit.

In an amended complaint scheduled to be submitted during a hearing Friday in
U.S. District Court in Salt Lake City, SCO lists two new causes of action
against IBM, both of which include claims for damages of at least $1 billion
each. Damages previously had been set at $3 billion.

SCO rattled the technology world last year when it sued IBM, claiming that the
computing giant illegally incorporated into its Linux software source code from
the Unix operating system, which SCO controls. The case has since ballooned into
a far-ranging attack on Linux, attracting legal attention from Linux companies
Novell and Red Hat and the ire of Linux supporters worldwide.




As previously reported, SCO's latest amendment to the IBM suit incorporates
several new claims, including allegations that IBM violated SCO copyrights by
continuing to distribute Unix and Unix-derived products, presumably including
Linux, after SCO terminated IBM's Linux license.

IBM's "post-termination actions have infringed, have induced infringement
of, and have contributed to the infringement of copyright registrations of SCO
and its predecessors," according to the amended claim. "Such actions
have been willful and have been done with knowledge of the copyright rights of
SCO."

SCO also asserted that current Linux products violate its copyrights. "A
significant amount of Unix protected code and materials are currently found in
Linux 2.4.x, 2.5.x, and 2.6.x releases in violation of SCO's contractual rights
and copyrights," SCO said in the complaint.

The original suit focused on alleged violations of IBM's contract, with SCO
originally disclaiming any copyright aspects.

The amended suit drops earlier allegations that IBM misappropriated SCO trade
secrets through its Linux development, a substantial feature in the original
complaint. The case now rests on claims IBM violated its contract by creating
derivative works based on SCO-controlled code, plus the new copyright-related
claims.

An IBM representative said the new claims and the jettisoning of the trade
secret allegations show the weakness of SCO's position. "SCO's proposed
copyright claim is merely a follow-on from its prior position that it had a
right to terminate IBM's Unix license, with which we strongly disagree,"
the company said in a statement. "IBM continues to believe (SCO's) claims
are without merit...and will continue to pursue its own counterclaims."

The two new causes of action also relate to behavior following the cancellation
of IBM's contract. The claims argue that IBM on behalf of itself and Sequent, a
server company IBM acquired in 1999, breached sublicensing agreements by
continuing to distribute its AIX Unix software after the cancellation of the
contract. "From and after the AIX termination date, all distributions of
AIX by IBM are in violation of the sublicensing agreement," according to
the suit. "IBM has disregarded and continues to completely disregard and
repudiate its obligations under the sublicensing agreement, to plaintiff's
substantial, continuing and ongoing damage."

The amended suit also drops allegations that IBM violated SCO trade secrets and
incorporates new claims surrounding SCO's ongoing dispute with Novell, from
which SCO purchased its rights to Unix. The amended suit says IBM encouraged
Novell to make copyright claims against SCO as part of a campaign to undermine
SCO's position. "IBM had induced or otherwise caused Novell to take the
position that Novell owned the copyrights," according to the suit. "At
IBM's improper urging and inducement, Novell now claims that it can amend,
modify and waive any and all terms of the software and sublicensing
agreements."

The amended suit outlines in greater detail specific Linux elements SCO believes
were illegally derived from Unix, including scalability and performance
improvements, error-logging components, clustering support, threading, the AIX
journaling file system and the NUMA scheduler.

The amended suit also includes new allegations that IBM violated its SCO
contract by improperly exporting Unix software to India and countries subject to
federal export controls, including Iran, North Korea and Cuba, echoing recent
comments by SCO CEO Darl McBride that characterized the spread of Linux as a
threat to national security.

CNET News.com's Stephen Shankland contributed to this report.

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 06 2004 @ 04:36 PM EST
SCO doean't have a contractual right to IBM's code and IBM pointed out today
that 17 USC section 103, the February 1985 side letter agreement with AT&T,
and governing case law (Litchfield vs Spielberg) say IBM's bare code can't be a
derivative unless it contains some AT&T code.

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: jmc on Friday, February 06 2004 @ 04:45 PM EST

Someone on Yahoo mentioned an IBM response filed yesterday which was available.

I copied it here before it goes.

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: MathFox on Friday, February 06 2004 @ 04:52 PM EST
A nice article in "Good Morning Silicon Valley". It could bring your blood pressure down after visiting Cnet/ZDnet.

---
MathFox gets rabid from SCO's actions.

[ Reply to This | # ]

I'll OCR IBM's report on SCO's compliance
Authored by: Thomas Frayne on Friday, February 06 2004 @ 05:16 PM EST
I got it from pacer, even though I don't have a subscription. I don't know why
it worked.

I am doing an OCR now.

[ Reply to This | # ]

Text of IBM's report on compliance.
Authored by: Thomas Frayne on Friday, February 06 2004 @ 06:00 PM EST
SNELL & WILMER, L.L.P. Alan L.Sullivan (3152) Todd M. Shaughnessy (6651) 15
West South Temple, Suite 1200 Salt Lake City, Utah 84101-1004 Telephone:
(801)257-1900 Facsimile: (801)257-1800

CRAVATH, SWAINE & MOORE LLP Evan R. Chesler (admitted pro hac vice) David R.
Marriott (7572) Worldwide Plaza

825 Eighth Avenue New York, NY 10019 Telephone: (212)474-1000

Attorneys for Defendant/Counterclaim-Plaintiff International Business Machines
Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

IBM'S REPORT ON SCO'S

COMPLIANCE WITH THE COURT'S

DECEMBER 12, 2003 ORDER

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

103

Defendant/Counterclaim-Plaintiff International Business Machines Corporation
("IBM") respectfully submits this report on SCO's compliance with the
Court's December 12, 2003 Order granting IBM's motions to compel.

Report on SCO's Compliance With the Court's Order

On December 12, 2003, the Court directed SCO to "respond fully and in
detail" to IBM's Interrogatory Nos. 1-9, and 12 and 13, and to
"produce all requested documents" in IBM's document requests by
January 12, 2003.

On January 12, 2003, SCO served its Revised Supplemental Response to IBM's First
and Second Set of Interrogatories (the "Revised Response", attached
hereto as Exhibit 1). In the accompanying "Notice of Compliance With Court
Order of December 12, 2003", which was filed with the Court, SCO
represented that it had "responded fully and in detail to Interrogatories
1-9, 12 and 13 ... based on the information in SCO's possession" and had
"produced all non-privileged responsive documents requested by IBM"
with the exception of certain files that would be promptly produced.

Despite these representations, however, SCO in fact failed to comply with the
Court's Order in numerous respects,1 the most important of which are addressed
below.

First, contrary to its representations to the Court on January 12, 2004, SCO now
admits that it has in fact not produced numerous categories of non-privileged
responsive

1 As we previously informed the Court, SCO did not provide all of the
information it was ordered to produce by the January 12, 2004 deadline. For
example, although SCO served IBM with some supplemental information on January
12, it continued to produce additional materials until January 28, necessitating
the postponement of the hearing scheduled for January 23. IBM does not take
issue in this report with SCO's delay in producing the information it has now
produced.

284457.1

documents. In a letter dated January 30, 2004 (a copy of which is attached
hereto as Exhibit 2), IBM identified for SCO numerous categories of responsive
documents that it believed SCO had yet to produce (at 3-5). SCO responded to IBM
by letter late last night (a copy of which is attached hereto as Exhibit 3)
conceding that it had indeed failed to produce numerous responsive documents.,
and committing to doing so at an unspecified time in the future (at 5-10).

Second, in response to the Court's Order, SCO abandons any claim that IBM
misappropriated its trade secrets, concedes that SCO has no evidence that IBM
improperly disclosed UNIX System V code, and acknowledges that SCO's contract
case is grounded solely on the proposition that IBM improperly disclosed
portions of IBM's own AIX or Dynix products, which SCO claims to be derivatives
of UNIX System V.2 The primary problem with the Revised Response, however, is
that: (1) SCO refuses to disclose from what lines of UNIX System V code these
alleged contributions are supposed to derive, which it must know to allege the
contributions were improper, and (2) a number of the allegedly improper
contributions are not disclosed with adequate particularity (e.g., SCO claims
IBM improperly disclosed "SMP" but does not specify the files or lines
of code allegedly "dumped" into Linux, or the files and lines of

2 In contrast to its public statements that IBM has improperly contributed
"truckloads" of code to Linux, SCO identifies parts of only 17 AIX or
Dynix files (out of the many thousands that make up these programs) that IBM is
alleged to have improperly contributed to Linux. Contrary to the Court's Order,
SCO declines to identify by line all of the code that it alleges IBM misused. It
continues to identify whole files, though it does not allege that IBM misused
the entire file.

284457.1

Linux in which they are supposedly found.3 SCO also fails properly to identify
and describe all of the materials in Linux to which it claims to have rights and
whether, when, to whom, and under what circumstances and terms it ever
distributed those materials.

Moreover, there remains a significant disparity between the information in the
Revised Response and SCO's public statements about its alleged evidence. In the
final analysis, SCO has identified no more than approximately 3,700 lines of
code in 17 AIX or Dynix files that IBM is alleged improperly to have contributed
to Linux. (A list of the files we believe SCO has identified in its Revised
Response is attached hereto as Exhibit 4.) Yet, speaking at Harvard Law School
earlier this week, SCO's CEO, Darl McBride, stated that:

". . . [T]here is roughly a million lines of code that tie into
contributions that IBM has made and that's subject to litigation that is going
on. We have basically supplied that. In fact, that is going to be the subject of
a hearing that comes up this Friday...." (emphasis added.)

(a rough draft of this portion of the transcript is attached hereto as Exhibit
5). If the "million lines of code" in fact exist, then SCO should have
identified them in response to the Court's Order. For at least these reasons,
SCO has not complied with the Court's December 12 Order and should be required
immediately to do so. If, as SCO hints (but does not say), none of the allegedly
improper disclosures made by IBM (or any of the other code in Linux to which

3 SCO produced voluminous exhibits in connection with its Revised Response.
However, these materials are essentially nothing more than print outs of various
files of code, including from Linux in particular. These print outs were not
called for by the Court's Order and do not compensate for the deficiencies
described herein.

284457.1

SCO claims to have rights) derive from UNIX System V, SCO should unequivocally
say so, as that concession would eliminate much of our concern about the Revised
Response.

DATED this 5th day of February, 2004.

SNELL & WILMER L.L.P.

Alan L, Sullivan Todd M. Shaughnessy

CRAVATH, SWAINE & MOORE LLP Evan R. Chesler David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff International Business Machines
Corporation

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION

Donald J. Rosenberg

Alec S, Berman

1133 Westchester Avenue

White Plains, New York 10604

(914) 642-3000

Attorneys for Defendant/Counterclaim-Plaintiff International Business Machines
Corporation

284457.1

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of February, 2004, a true and correct copy
of the foregoing IBM'S REPORT ON SCO'S COMPLIANCE WITH THE COURT'S DECEMBER 12,
2003 ORDER was hand delivered to the following:

Brent O. Hatch

Mark F. James

HATCH, JAMES & DODGE, P.C.

10 West Broadway, Suite 400

Salt Lake City, Utah 84101

Kevin P. McBride

299 South Main Street, Suite 1700

Salt Lake City, Utah 84111

and sent by U.S. Mail, postage prepaid, to the following:

Stephen N. Zack

I have an html version of this, which is much prettier, but I don't know how to
send it.

--------------------------------------------------------

Mark J. Heise

BOIES, SCHILLER & FLEXNER LLP

100 Southeast Second Street, Suite 2800

Miami, Florida 33131

284457.1

Exhibits/

Attachments

to this document

have not been

scanned.

Please see the case file.

[ Reply to This | # ]

The last thing I read on CNET before I fell out of my chair
Authored by: Anonymous on Friday, February 06 2004 @ 06:09 PM EST
SCO revoked IBM's linux license.

hahahahahaha

wait a second. It didn't say sco revoked a license granted to ibm for them to
use linux.

Maybe it meant sco revoked the license ibm granted to sco to use linux.

hmmmm

[ Reply to This | # ]

Case Dismissed - SCO changes the rules
Authored by: Anonymous on Friday, February 06 2004 @ 07:51 PM EST
I am curious - Since SCO practically removed all of the previous claims toward
IBM, and practically changed the whole nature of the case, is there any 'real'
possibility of the case continuing as is?
All of the claims that SCO made are now 'null and void' because it now is a
copyright case instead of a IT/breach of contract case.
Or would the judge force SCO to continue with the 'original' claims, and force
SCO to show its 'evidence' first and void all of the SCO motions that were made
this week since they are off-topic and not relevant to the original case.
SCO does not create a good image of itself to the judge, does it? When it
provides little if any evidence, and then changes the rules at the last minute -
in an attempt to force IBM to change all of its defences. Does this not show
very 'Bad Faith' on SCO's part?
IANAL

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Sunday, February 08 2004 @ 05:54 AM EST
Well there are certainly a lot of #linux channels and I doubt they have
consulted Linus first

[ Reply to This | # ]

Judge to Issue Order in a Week: IBM Says SCO Didn't Comply
Authored by: Anonymous on Friday, February 20 2004 @ 08:47 AM EST
It's been two weeks,
Where is Judge Wells' decision ???

Or has she delayed her result until the court rules on the latest Novell
action.

[ Reply to This | # ]

Reference
Authored by: Anonymous on Saturday, March 13 2004 @ 11:37 PM EST
It sounds like a reference to 480 BCE, when 300 or so Spartans took on the
entire persian army. The Persian commander ordered the Spartans to stand down
and clear the narrow mountain pass, or they would "blacken the sky with
arrows". The Spartan leader calmly replied that the Spartans would simply
fight in the shade.

The Spartans, of course, lost (after beytrayed by one of their own) after an
amazingly tough fight for the Persians.

"Go, stranger, and tell the Lacedaemonians that here we lie, obedient to
their commands." - Spartan Tomb Inscription

[ Reply to This | # ]

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