decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
IBM Report on SCO "Compliance"
Friday, February 06 2004 @ 05:54 PM EST

Here ya go, Groklaw addicts. Hey, are we having fun, or what? Not proofed yet. I'll correct next, but I know you are drooling. In fact, you can help. Here is the PDF. Thank you, Rand, and Henrik for fixing the footnotes.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]

Attorneys for Defendant and 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

Honorable Dale A. Kimball
Magistrate Judge Brooke Wells

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 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 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 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
[signature]
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
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff International
Business Machines Corporation

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.
[address]

Kevin P. McBride
[address]

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

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

[signature]


NOTES

(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.

(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.

(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.



Exhibits/ Attachments to this document have not been scanned. Please see the case file.


  


IBM Report on SCO "Compliance" | 284 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT: SCOX
Authored by: Anonymous on Friday, February 06 2004 @ 06:03 PM EST
I get the feeling that the markets were relieved.

SCOX is up 73 cents.

I think this may be temporary...

[ Reply to This | # ]

  • OT: SCOX - Authored by: Anonymous on Friday, February 06 2004 @ 06:13 PM EST
  • OT: SCOX - Authored by: Anonymous on Friday, February 06 2004 @ 06:23 PM EST
    • OT: SCOX - Authored by: Anonymous on Friday, February 06 2004 @ 06:41 PM EST
    • OT: SCOX - Authored by: Anonymous on Friday, February 06 2004 @ 07:00 PM EST
      • OT: SCOX - Authored by: Anonymous on Saturday, February 07 2004 @ 12:31 AM EST
  • OT: SCOX - Authored by: red floyd on Friday, February 06 2004 @ 06:27 PM EST
    • OT: SCOX - Authored by: Anonymous on Friday, February 06 2004 @ 06:46 PM EST
I am in awe
Authored by: Anonymous on Friday, February 06 2004 @ 06:15 PM EST
IBM's lawyers deserved the round of applause they got at the hearing...

[ Reply to This | # ]

Typo Watch
Authored by: Scriptwriter on Friday, February 06 2004 @ 06:16 PM EST
I know you got this out in a hurry. :)

Counterclaim-Plaintiff
respectfully submits
directed SCO to
"produce all requested documents"
"Notice of Compliance"
most important of which
categories of non-privileged
numerous categories
these alleged contributions
with adequate particularity
disclosed "SMP"
specify the files or lines
SCO also fails
In the final analysis, SCO has identified
to have contributed
Harvard Law School
Darl McBride
[there's no emphasis in McBride's quote; parts of it was underlined in the PDF]
"million lines of code"
December 12 order
it was ordered to produce by the January
information on January 12,
continued to produce additional materials
necessitating the postponement
(out of many thousands that make up these programs) that IBM is alleged to have
improperly contributed to Linux.
that it alleges IBM misused. It continues to identify
However, these materials
printouts of various files

These are in the order they appear in the text so it should be easy to drop in
the corrections. I didn't check to see whether any of these were just
transcriptions of typos in the PDF.


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

irc.fdfnet.net #groklaw

[ Reply to This | # ]

  • Typo Watch - Authored by: Anonymous on Saturday, February 07 2004 @ 09:13 AM EST
Proofing
Authored by: Yobgod on Friday, February 06 2004 @ 06:18 PM EST
PP3: Notice of Compiance -> Notice of Compliance
Idem: Court order -> Court Order
Idem: produced all the non-priv -> produced all non-priv
PP4: add comma after "in numerous respects"
PP5: attached as Exhibit 3) concluding -> conceding
PP6: AIX and Dynix -> AIX or Dynix

[ Reply to This | # ]

  • Proofing - Authored by: Yobgod on Friday, February 06 2004 @ 06:25 PM EST
  • Proofing - Authored by: _Arthur on Friday, February 06 2004 @ 06:32 PM EST
IBM Report : BEAUTIFUL
Authored by: atul on Friday, February 06 2004 @ 06:19 PM EST
It's a beauty to read, and beautiful for what it says. My favorite bit is where
they quote Darl at Harvard going on about his million lines of code, and then
they state that SCO ought to have handed the million lines over in discovery, if
they really exist.

The really clever part about it, though, is that they used this as a pretext to
attach a transcript of Darl's little talk at Harvard. The judge ought to get a
big laugh out of reading that.

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: RSC on Friday, February 06 2004 @ 06:22 PM EST
All i can say is OUCH.

I love reading the IBM filling..... :)


RSC


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

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: ATS on Friday, February 06 2004 @ 06:34 PM EST
The thing I find most fascinating here is the following:

Second, in response to the Court's Order, SCO abandons any claim that IBM misappropiated its trade secrets, concedes that SCO has no evidence that IBM improperly disclosed UNIX System V code, and acknowleges that SCO's contract case is grounded solely on the proposition that IBM improperly disclosed portions of IBM's own AIX and Dynix products, which SCO claims to be derivitives 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[...] [emphasis added]

Assuming IBM's presentation of SCO's statements is accurate (this is an adversarial process) newSCO's "case" is steadily being reduced to their vague (and IMHO bizarre) notion of "derivative works".

Well warranted cheap shots aside, it seems clear that newSCO's attorneys are living in a different mental universe than both IBM's attorneys and the Judge and that they're talking past each other because their underlying assumptions are so different.

newSCO doesn't feel it needs to show specific lines of code in SysV (either directly copied into Linux or used as a basis for derivative works). newSCO seems to think that any code added to a work becomes a derivative of that work. Thus, by their lights and statements, it is unquestionable that AIX is a derivative of SysV. They think (or act as if they think) that anyone who insists on specific lines is daffy.

(In the alternative, they'll say it's a "derivative work" because IBM-written code in AIX embodies "methods" found in SysV.)

This helps to explain newSCO's attorneys saying things like that line-for-line copying "has not and is not what the case is about" and that "modifications to SysV code must be treated as derivatives".

newSCO is using the word "modifications" to mean any changes or additions. From their point of view, it's gibberish to ask exactly which lines of SysV were modified. They all were.

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: TrentC on Friday, February 06 2004 @ 06:39 PM EST

Now we know what SCO meant when they said IBM said some of their replies were "Not applicable to the case":

[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 printouts were not called for by the Court's Order and do not compensate for the deficiencies described herein.

So, again, when IBM asks "Show us the code we're supposed to have copied into Linux", SCO gives them a bunch of Linux source code and says "It's in there somewhere"? Unbeleivable...

Jay (=

[ Reply to This | # ]

Darl's big mouth...
Authored by: Anonymous on Friday, February 06 2004 @ 06:39 PM EST
...came to haunt him after all.

I'm getting the feeling that IBM is patiently collecting all the crap coming out
of his mouth and will simply turn SCO into a pile of dust one of these days. I
would not like to be in Darl's shoes when that happens.

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 06:45 PM EST
This just goes to show you how ignorant Darl and his gang are about the
principals of operating systems and code development. They're whole case rests
on this 'derived code' bull***t when the ideas at hand were donated by
researchers at institutions around the country. They seem to miss that deriving
a song from a copyrighted source is different than derving code from existing
source.

Lets set the tone for this.

There are two parts to an OS, its data structures and the algorithms that
manipulate them.

To 'derive an algorthm' the original algorithm must in some way be embedded in
the new algorthm. This is not the easiest thing to do. I suppose you could argue
that if the original algorthm took a subset of the new algorthm's domain then
the new algorthm could be considered to be devrived, but this is a stretch. In
my experience an algorthm is an atomic idea. Each algorthm is sufficently
different than its predecessor, because if it wasn't it would be able to codify
the new domain.

Now if you add code to an existing algorthm that tweaks it a little (to support
a different processor or device), but the original algorthm is fundementally the
same I suppose that could be derived. The problem is there are only a couple of
ways to do things on a computer. Most of those ways have been sorted out in the
public domain. This is especially true with Unix.

Derving a data structure is very straight forward. If the new data structure
contains a proper subset (or for the courts, almost a complete subset) then the
new data struct has been derived from the old one. This is done all the time
(officially) in OO programming and is implicity done in C and assembly. Of
course most data structures just represent hardware interfaces which are all
standard and documented (some in open).

Well there you have it from an OS jock.

Darl, if your reading this, IMHO you are a perfect SCO employee, just a little
ball of hate lashing out at those things you don't understand.

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 06:53 PM EST

$5,000,000,000 divided by 3700 lines of code equals $1,351,351.35 per line of code. Those lines must be really good code to be so valuable.

[ Reply to This | # ]

OT: press conference?
Authored by: phrostie on Friday, February 06 2004 @ 07:17 PM EST
did i miss understand, or was there supposed to be a press conference after the
hearing?

if so what happened.
was it the stocking stuffing?

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux

[ Reply to This | # ]

OT: Comic
Authored by: grouch on Friday, February 06 2004 @ 07:27 PM EST
Any comic strip artists around?

Panel 1: house of cards, cardbacks painted to make it appear a fortress of
stone, Darl sticking out the top yelling, "A million lines! 3 billion
dollars!", press scribbling at the base of the house of cards.

Panel 2: small team of black suited lawyers setting up small fans around the
house of cards, IBM logo on the fans, Darl yelling, "5 billion
dollars!"

Panel 3: black suited lawyers with their fingers on the fan switches, one lawyer
standing with 1 finger in the air while looking at his wrist watch

[ Reply to This | # ]

  • OT: Comic - Authored by: Anonymous on Friday, February 06 2004 @ 09:05 PM EST
  • OT: Comic - Authored by: inode_buddha on Saturday, February 07 2004 @ 12:34 AM EST
  • OT: Comic - Authored by: Anonymous on Monday, February 09 2004 @ 11:10 AM EST
IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 07:28 PM EST
I'm concerned that while SCO isn't pressing the "Unix code in Linux"
issue in court, it will continue to do so in the press. They seem much more
interested in promulgating FUD via the media than in proving anything
substantive in court.

Can anything be done to stop this approach on their part?

[ Reply to This | # ]

Let's see if the press picks up on this
Authored by: CyberCFO on Friday, February 06 2004 @ 07:28 PM EST
I wonder if the financial press will pick up on the fact that SCO's copyright
claim has nothng to do with Linux code, but instead on IBM's continued
distribtution of AIX despite the fact that it's license to do so was revoked (we
won't talk about the fact that IBM's license was improperly revoked though)

---
/g

[ Reply to This | # ]

IBM Lawyers
Authored by: Anonymous on Friday, February 06 2004 @ 07:29 PM EST
IANAL and I understand every thing IMS attorneys are saying.
They are incredible.

[ Reply to This | # ]

OT: Any one else read this from Stephen Shankland ??
Authored by: DBLR on Friday, February 06 2004 @ 07:50 PM EST
The ZD Net Article And I quote from the end of the story" With the amendment, the 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.

Charles

[ Reply to This | # ]

OT: Microsoft Lawyer heads antitrust comittee
Authored by: Anonymous on Friday, February 06 2004 @ 07:50 PM EST
Unbelieveable. Microsoft appears to have finagled themselves another "free pass" through the justice system. It seems a Microsoft lawyer has now been placed in charge of the American Bar Association's antitrust section! And according to this article they have already started lobbying against the increased oversight of antitrust settlements!

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 07:51 PM EST
Loved the bit from Harvard, when will Darl learn?

Anyway, on to my point for the day. With SCO dropping all
SysV->Linux claims as concentrating on the SysV->AIX->Linux
claims (where -> means derivative), they finally have a
basis for arguing for discovery of the AIX code, and the
judge showed signs of allowing that. Question for the
lawyers out there, if section B of AIX is derived from
section A of SysV, but section D of Linux is derived from
section C of AIX, does that make C a derivative of A?

Discovery may be allowed, but I think the actual case
itself will be divided into two stages. First SCO will
have to get a number of rulings of fact supporting their
interpretation of the contract. Only then will the case
move on to whether or not IBM infringed that
interpretation.

And yes there will be a case, I doubt IBM will ever move a
motion to dismiss, they WANT their day in court to crush
SCO and their ilk once and for all.

John.

[ Reply to This | # ]

OT: Is this real?
Authored by: titancbl on Friday, February 06 2004 @ 08:13 PM EST
"SCO supporters, many of whom are in the Unix camp, remain convinced that
the company has a valid claim. "SCO is right. IBM is trying to steal the
code
under the cloak of open source," said Douglas Nassaur, president and CEO of

True North Technology, a Sun Microsystems partner based in Alpharetta, Ga.
"IBM supports open source and hopes SCO gets hijacked so they can steal it.

At that point, IBM won't need the open-source community or SCO because
they'll have the code."

http://www.crn.com/sections/BreakingNews/dailyarchives.asp?
ArticleID=47787

We need to start a Hall of Shame here at Groklaw - where we display the most
outrageous, ignorant quotations related to the SCO case(s). This can be our
first entry.

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 08:23 PM EST
SCO's basic problem is this. It says that IBM must have given a million lines
of code to Linux because otherwise Linux could not have improved so rapidly.
However, SCO fails to identify the specific code, and so, even if the court
accepts the argument that Linux must have been given a million lines of code, it
has no reason to believe that it came from IBM rather than some other source.

[ Reply to This | # ]

Read between the Lie
Authored by: Anonymous on Friday, February 06 2004 @ 08:42 PM EST
Did SCO create a circular dependency by changing the objectives of the case? The
original case (FUD) revolved around illegal code in Linux, now that has been
laid to rest. The new motions, lead with momentum from the original claims are
being used to prolong their fraudalent stock manipulating scheme.

1) Start and promote FUD about IP in Linux.
2) Get access to IBM source code database.
3) Argue case for owing AIX as derived code. (no authortiy to do so before)
5) Drop IP rights claim.
while (! money_for_sco)
6) Argue new case for owing AIX as derived code.
7) Begin new FUD campain about IP in Linux again.
8) Argue case for owing AIX as derived code.


Brilliant bunch, Canopy Group is smarter than you think.

[ Reply to This | # ]

Guarentee going forward from what IBM wants Spelled out now?
Authored by: Anonymous on Friday, February 06 2004 @ 08:54 PM EST
If the "million lines of code" in fact exist, then 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 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.
So what IBM is trying to do here, if I am not mistaken, is get it all out in the open (not just for IBM) everything that SCO might ever sue anyone over.

Am I right (being a biologist being a bit of a hinderance here) in thinking that if they don't declare it here, but come along to sue someone else at a later date, that they might have a problem in that they lied to 1 court?

Is there any sort of guarentee that this puts forward? or- put another way, does this sort of hint where this is headed for IBM. When all is said and done, They want it out in the open that there is absolultly nothing that SCO has a claim on and that is shown in this case. That would end any FUD potential, as then all anyone has to say is "you tried that and got smacked down"

In a way - making Linux a lot more FUD proof on the IP front?

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: Jude on Friday, February 06 2004 @ 08:58 PM EST
I really love the way IBM presented Darl's Harvard speech "million lines of
code" as if it was a fact, and then used it to assert that SCO's discovery
response therefore could not be complete.

SCO now has the rock-and-hard-place problem: If they can't come up with "a
million lines" Real Soon Now, they either face contempt of court for
refusing to respond to IBM's request -or- they have to tell the judge that the
"million lines" was P.R. hogwash, effectively testifying against
themselves WRT IBM's Lanham Act claim.

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 09:04 PM EST
I particularly like the focus on Darl's drivel.

The more exposure this gets the better IMHO.

And, post vindication, when Linux, the ethos, and the approach, are lauded I can
only hope that those boards of directors responsible for employing people like
him think twice about entrusting their shareholder funds to cheap conmen
tricksters out for a quick buck (allegedly).

This case extends way beyond the way software could/should be created - it is as
much about the way business could/should be conducted.

But this is not the industry's/community's first ambulance chaser & I guess
it will not be the last.

Some people eh? You just can't take them anywhere.

[ Reply to This | # ]

IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 09:11 PM EST
Hey, are we having fun, or what?

Yes, we are having fun.

[ Reply to This | # ]

A Silly Story
Authored by: Anonymous on Friday, February 06 2004 @ 09:25 PM EST
Yes - its a long story, but one that I try to tie into today's news.

My girlfriend and I have recently gotten into this fix of gaming together. We
started with PS2 sports games like SSX Tricky and Tony Hawk but have graduated
to a MMORPG game called Final Fantasy XI. When she comes home from college,
however, she cannot play the game as her computer is back at the University and
I usually don't play without her. The sports games were getting bored so we
went shopping at Target just to kill time (its amazing how amusing it is to
watch the carts go up their own escalator at the 2 story targets).

While shopping we came upon the board game aisle and her eyes lit up when she
the "Nostalgic Edition" of a game called Stratego. I have never been
much for board games, so I didn't know what it was but she assured me it was
"a lot like Advance Wars, or like Starcraft mixed with Chess." I
decided to give this "offline" game a try.

The first game she kicked my ass, but its not this first game that mattered.

The second game I had more of an idea of the way the game worked and I was able
to position my pieces in a way that would provide utter destruction to her army
up ahead - and that was exactly what happened. At some point I took out both
her Spy and Marshall - so she essentially had no way of defending herself. She
also threw all her Miners at my mercy, since she had nothing else to do but try
to find my flag as quickly as possible.

Her moves were rash, and without logic, but it was all she could do to attempt a
victory. Meanwhile I just waited, took out key parts her offense, and finally
started going to town on her additional (and powerless offense) as well as the
bombs she had placed on her screen.

The way the game works, as soon as your miners are all gone, you have
essentially lost. She pointed that out to me, but I insisted we play. I knew
where her flag was, but I decided I wanted completion, I wanted to take out
every single bit of dignity she had (we're both competitive, she's done things
just as worse to me). In the end I was able to achieve victory, and in a
dominating and sickening way - she had nothing left when I decided to take her
flag.

I guess you could guess by now that I'm trying to create some analogy. This
game I played with my girlfriend happened last Sunday after her birthday. I
*COULD* have let her off easy and finished the game as it was, i.e. dismiss with
a win under my belt, but the competitive jackass in me wanted much more.

After getting through my daily fix of Groklaw (a good one at that) I can't help
but smile as I read about IBM in action today.

Cheers to IBM, and cheers to PJ. I hope you all have a great weekend.

[ Reply to This | # ]

  • A Silly Story - Authored by: Anonymous on Friday, February 06 2004 @ 09:29 PM EST
IBM Report on SCO "Compliance"
Authored by: Anonymous on Friday, February 06 2004 @ 09:51 PM EST
SCO has painted themselves into the prevervial corner and continues displaying
the epitome of selfish behaviour by deflecting and intentionally ignoring a
simple question. The judge should be keen to this behaviour and deduce that SCO
is not looking for any immediate benefit yet continues its public outcrys of how
they have been wronged and how bad it hurts. Well, what ever happened to the
notion of swift justice? is there ever a time when its desirable to extend the
final determination of justice? is it now possible to wait until the final
seconds in the fourth quarter ballgame before placing a bet? Is this type of
case ever settled?...greed! the desire to aquire is never satisfied

[ Reply to This | # ]

Darl and Martha
Authored by: Anonymous on Friday, February 06 2004 @ 10:07 PM EST
<I>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's going on. We have
basically supplied that. In fact, that is going to be the subject of a hearing
that comes up Friday..." </I>

The SEC is trying to put Martha Stewart away for lying and claiming she was
innocent in order to boost the stock of her company. What are they going to do
with this Darl character?

[ Reply to This | # ]

IBM Report on SCO &quot;Compliance&quot;
Authored by: Anonymous on Friday, February 06 2004 @ 10:15 PM EST
SCO fooled the press again. They released the new copyright complaint against
IBM, so the press is writing about that, and they miss the story of how badly
SCO lost at the hearing. It is SCO's old tactic: when something bad is going to
happen, do something else that will get a lot of publicity as distraction.

[ Reply to This | # ]

Proposed Second Amended Complaint
Authored by: lpletch on Friday, February 06 2004 @ 10:53 PM EST
In the Proposed Second Ammended Complaint from SCO (Doc-100-A) at TuxRocks (www.tuxrocks.com).

Paragraph 109 refers to an interview from The Linux Forum 2002 in Denmark (2002-03-02) covered at http://www.theregister. co.uk/content/4/28183.html

Specifically the paragraph:

"What is wrong about this distribution, is basically the millions of lines of code that we never have seen. We don't know if there are any patent infringements [in this code] with somebody we don't know. We don't want to take the risk of being sued for a patent infringement. That is why we don't do distributions, and that's why we have distributors. Because distributors are not so much exposed as we are. So that's the basic deal as I understand it."
The complete interview can be found at http://sslug.mmma nager.org/Members/erla/Strassmeyer_int along with video (RealMedia) and audio (ogg) versions.

This is an interesting interview of a programmer being asked questions about patents.

---
lpletch@adelphia.net

[ Reply to This | # ]

IBM, why are you doing this?
Authored by: Lord Bitman on Friday, February 06 2004 @ 10:57 PM EST
IBM quotes SCO as saying that there are eroughly one million lines of code which
<i>tie in to</i> infringing code. It uses this quote to counter the
3700 lines which are all which have been seen.
IBMs lawyers, I can only assume, are smart, well-paid individuals. There is
already a very strong case against SCO. Why, then, do they set themselves up for
failure by purposely distorting what has been said?
One Million Lines which tie in to infringing code is _NOT_ one million lines of
infringing code. SCO is not saying "We own all this code"[in this
<i>particular</I> quote], it is saying "We own a significant
peice of code, whose removal would require the re-write of all this code."
Yes, SCO has made other claims. Yes, this is not a blanket-statement which
applies to everything which SCO has said.
However, this particular post is only refering to one particular quote by SCO
which IBM has decided to twist into something which is not.
IBM: the code which SCO has claimed to own, it doesn't actually own.
<i>that's all you need</i>. You don't need to lie about there not
being enough of it.

Why has IBM chosen a quote which can be so easily thrown back in their face?
Even though SCO is completely full of shit, and the quote IBM has used is
demonstration of a flat-out lie by SCO, IBM has still chosen to interpret it in
a way other than it was intended.
Not other than the way it was intended to be taken, but other than the way it
was intended to, when read closely, actually mean.

---
-- 'The' Lord and Master Bitman On High, Master Of All

[ Reply to This | # ]

Did SCO produce any analysis documents, etc.?
Authored by: Anonymous on Friday, February 06 2004 @ 11:00 PM EST
There is a mention of an Exhibit in IBM's reports, that says SCO admits they did
not produce all the documents.

I thought I'd take a look at what sort of thing SCO did produce:

http://sco.tuxrocks.com/Docs/IBM/Doc-101-1.pdf

It look like it's all source code, plus "General Files" several times,
plus personal files of various individuals, McBride etc.

Given IBM's document requests about SCO forum, about Analyses of the code,
Damages Calculations. Sun/MS licenses and so on. It's hard to believe that all
this stuff is in Darl McBride's top drawer, and I doubt it falls under
"General files"

[ Reply to This | # ]

Who is Douglas Nassaur?
Authored by: atul on Friday, February 06 2004 @ 11:04 PM EST
He's the former CIO of LinuxCare, and was with eTrade before that. Generic
dot-com exec type. Buzzwords, no substance. He got dumped back in 2000, around
the time their IPO got postponed. Sounds like sour grapes to me.

http://news.com.com/2100-1001-238993.html?legacy=cnet

He has personal reasons for hating Linux. Everyone else ought to note that his
opinion stems from certain personal issues, rather than actual facts, and weight
it accordingly.

[ Reply to This | # ]

Friday's Hearing
Authored by: webster on Friday, February 06 2004 @ 11:14 PM EST
PJ, Where is the transcript? Aren't you concerned about your reputation?

I can hardly believe SCO has so little in the end. The hearing was astounding
but I'll wait for the transcript to be sure.

My sense is that the judge truly might do something drastic and dispositive of
SCO claims. They said they couldn't, wouldn't comply and that was not what the
case was about anyway. With that record the Court needs no further invitation.
The Court can strike counts, impose sanctions such as legal fees, impose a gag
order and forbid them from detailing code and pulling up stuff they were ordered
to disclose earlier. They have rendered themselves defenseless. I bet lawyers
such as Boies got into it and said the best that we have is weak. We're not
throwing anything out there that we can not back up. The Corporate officers,
shareholder insiders made a gross miscalculation. Given that the legal fee
deal and recent financing terms all anticipated buyouts, license fees, sale and
settlements, I'm sure they never expected things to develop so quickly without
IBM, Red Hat and others offering to pay them to go away. Their bluff has been
exposed.

Let us hope there is yet room somewhere for an IBM Motion based on the GPL. We
want to get some lasting value out of this case. With a foe as incompetent as
SCO, we may be cheated out of a strong precedent. They have been such a
destructive waste.

---
webster

[ Reply to This | # ]

Payback time - any chance to hold SCO execs and lawyers PERSONALLY liable for cost of suit?
Authored by: Anonymous on Friday, February 06 2004 @ 11:20 PM EST
IBM will win the countersuit. SCOX goes belly up. IBM doesn't collect much. Any grounds to get SCOX executives and lawyers on the hook PERSONALLY in the countersuit?

[ Reply to This | # ]

Please answer this
Authored by: Anonymous on Friday, February 06 2004 @ 11:30 PM EST
Could someone please answer this question for me?

1. SCO says IBM wrote some code (NUMA, SMP, etc) and used it in AIX and because
of IBM's UNIX source license then that code now belongs to SCO. So if IBM then
added that code (that they wrote) to Linux without SCO's permission, then they
have broken their license agreement.

2. Darl McBride said that the GPL is a parasitic license, meaning that if you
use any GPL'ed code then you lose your rights over the code you wrote because
you have to release it under the GPL also.

What's the difference between #1 and #2?

[ Reply to This | # ]

Let's be clear about the 3700 lines of code
Authored by: CyberCFO on Friday, February 06 2004 @ 11:46 PM EST
If I am not mistaken, it was IBM that stated the 17 identified files contained
3700 lines of code. They did not say that SCO identified the specific lines of
code in the files that were infringing, but that at most, there could be 3700.
As far as we know there could be 17 lines of allegedly infringing code, or none.

---
/g

[ Reply to This | # ]

Bit of humor
Authored by: inode_buddha on Saturday, February 07 2004 @ 01:10 AM EST
see here:

http://ars.userfriendly.org/cartoons/?id=20040206

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

[ Reply to This | # ]

  • Bit of humor - Authored by: Anonymous on Saturday, February 07 2004 @ 05:57 AM EST
IBM's big picture plans?
Authored by: capn_buzzcut on Saturday, February 07 2004 @ 01:32 AM EST
.
Here's what I think:
IBM feels that they could probably slam dunk this case right now if they wanted
to, but they're not going to yet because they want give SCO all the rope they
can to hang themselves with. IBM also wants to give SCO a chance to claim
anything else they can dream up - just get it all out in the open so they can
shoot it all down once and for all. It's a foregone conclusion that IBM will
win, but they want to win in a way that will prevent this from ever happening
again.

What I'm wondering about though, is what IBM hopes to get in return for going
the extra mile in this case. This is costing them money, not just in legal
expenses, but also by its affect on the market for Linux. I just can't see them
doing all of this and coming out basically in the same position as they were in
before this whole thing started. So what could it be? What does IBM want for
it's trouble? Maybe the undying gratitude of the Linux community? Nice, but I
doubt it. The "Savior of Linux" press coverage? Not really their
style. How about a legally bulletproof GPL? Maybe. What if IBM could secure
the legal green light to donate AIX or SysV code to Linux? Hmmm, I dunno.

Maybe I'm wrong, but I've just got to believe that somewhere down the road, IBM
is planning on profiting from this legal mess. And they should. I just can't
see how yet. Any ideas?
.

[ Reply to This | # ]

Hmmm, why is IBM gonna erase the existence of SCO
Authored by: Anonymous on Saturday, February 07 2004 @ 02:12 AM EST


You don't tug on Superman's cape, you don't spit into the wind, you don't pull
the mask off the lone ranger and you don't mess with Jim (IBM)

[ Reply to This | # ]

So...what about suing Linux users?
Authored by: Anonymous on Saturday, February 07 2004 @ 02:24 AM EST
Can SCO still sue a Linux user and expect to win?

[ Reply to This | # ]

IBM Report on SCO &quot;Compliance&quot;
Authored by: bcomber on Saturday, February 07 2004 @ 02:47 AM EST
Now, I'm the first to admit that IANAL, and a lot of the 'legaleze' I don't
understand. That being said, this is as plain as day. SCO didn't do what they
were required to do. From the looks of it, they didn't even come close. And the
lawyers even quoted Darl in a late week speech. Now that is a real cold shot.

I have to wonder what is in Darl's mind. He keeps spouting off about how they
are in the right, but everything he says shows they aren't.

Mike

[ Reply to This | # ]

IBM Report on SCO &quot;Compliance&quot;
Authored by: Anonymous on Saturday, February 07 2004 @ 10:15 AM EST
The only way SCO will drop this lawsuit is for the judge to issue a gag order.
If Darl's tongue is legally tied then SCO stock pump-n-dump scheme will end. No
more money from FUD will see an end to this farce. Then again, I am not a stock
analyst (IANASA).

[ Reply to This | # ]

2003 dates shoud be changed to 2004
Authored by: Anonymous on Saturday, February 07 2004 @ 02:07 PM EST
If someone hasn't already pointed this out, the years are listed incorrectly in
PJ's (draft) posting. They should read 2004 beginning in january.

Mike A.

[ Reply to This | # ]

Hello.
Authored by: Anonymous on Sunday, February 08 2004 @ 11:44 PM EST
My name is Tim and I'm...

... a Grokaholic!

[ Reply to This | # ]

IBM Report on SCO &quot;Compliance&quot;
Authored by: Anonymous on Monday, February 09 2004 @ 11:08 AM EST
I have a pretty good idea which finger it would be if the lawyer was a history
major and remembers the battle of Agnicourt.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )