decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
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



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

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

"This Is About *Your* Response To The Order" - Judge Wells
Saturday, February 07 2004 @ 04:13 PM EST

We'll be able to get a transcript soon, but while we wait, Bob Mims has a delicious morsel. It seems that SCO tried at the hearing to argue that they couldn't tell the court what lines of code in Linux are infringing with specificity unless they get to see AIX first. Again with that argument. It didn't fly. Again.

The judge, bless her heart, told them that her order already answered that question: *they* were to go first. Period.

Here is the exchange, as he reports it, starting with SCO attorney Heise:

"But to provide the 'line by line' evidence IBM is now demanding, he said, would require Big Blue to release AIX and Dynix code -- as SCO has requested in its own discovery motion.

   "Wells interrupted: 'The requirement of the court is that you provide those source codes; this is about your response to the order.'

"Heise insisted, however, that without IBM's compliance, 'it is literally impossible' for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum it argues exists.

   "'We're at an impasse and we can't be at an impasse and have this case remain at a standstill,' Wells responded. 'You've made your point -- I'm just not certain I agree.'"

If you recall, SCO told journalists with a straight face that this hearing was going to be about IBM turning over AIX. Was it?

So, SCO picked a fight with IBM without have any proof of actual infringement? They still have no proof that IBM sent AIX code to Linux? And they stand before the judge and say it is "literally impossible" to prove that code went to Linux from Unix via AIX unless they get to look at IBM's code?

Remarkable. Let me get this straight. They filed on a hunch, because they just figure it must have happened somehow, knowing they had no proof of copyright infringement. And for that they would like a billion dollars or so, give or take a billion? Or 50 billion or whatever.

More remarkably, they get headlines everywhere today in the mainstream press about SCO adding a copyright infringement claim, as if it were a serious threat. They added the claim based on a hunch that they admit they can't prove. You think they'll collect?

When Heise asked for all the AIX code from the founding of the world and said, one more time, that SCO can't reveal the code without giving away their precious, supersecret IP that the whole world isn't interested in using any more, judging from their SEC filings, IBM's Dave Marriott said all they need to do is go on the Internet, because Linux is public, drawing this response:

"Heise countered that "not everything they have put into Linux is public. . ."

I can't wait to read the transcript in full. This is better than a movie. No kidding. I'd pay to watch this play out, if it wasn't free. Darl is pitching to the press that the Linux community hates him, but speaking for myself, this is more entertaining than anything I've ever paid to watch in my whole life.


"This Is About *Your* Response To The Order" - Judge Wells | 534 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
"This Is About *Your* Response To The Order" - Judge Wells
Authored by: roxyb on Saturday, February 07 2004 @ 05:00 PM EST

I couldn't have put it better myself!

This is my night-movie (due to time-differences). Who needs soap-operas?

Roland Buresund

I'm Still Standing...

[ Reply to This | # ]

"This Is About *Your* Response To The Order" - Judge Wells
Authored by: brenda banks on Saturday, February 07 2004 @ 05:01 PM EST
only you PJ could write this and make it sound as funny as it really is
by the way noone that isnt familiar with the story will believe your book is
anything but fiction.this is just unreal

br3n #groklaw
"sco's proof of one million lines of code are just as believable as the
raelians proof of the cloned baby"

[ Reply to This | # ]

"This Is About *Your* Response To The Order" - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 05:03 PM EST
Lucky for IBM.

I always wondered how Linus was able to battle harden Linux. I guess IBM gave
him the code.

[ Reply to This | # ]

"This Is About *Your* Response To The Order" - Judge Wells
Authored by: HeLLL on Saturday, February 07 2004 @ 05:07 PM EST
I can't believe that SCO is still trying to get IBM to show them thier code. Is
their something they are not quite getting.

YOU brought the lawsuit YOU have to prove that an infringment is occuring.

This is getting better and better every time SCO and IBM go to court. And IMHO I
think the judge has picked up on SCO's little fishing tatics and is blocking
them. Kudos to you Judge.

[ Reply to This | # ]

"This Is About *Your* Response To The Order" - Judge Wells
Authored by: Nick_UK on Saturday, February 07 2004 @ 05:08 PM EST
"Heise countered that "not everything they have put into Linux is
public. . ."



[ Reply to This | # ]

Heise's statement
Authored by: xtifr on Saturday, February 07 2004 @ 05:11 PM EST

I suspect that what Heise meant is that not everything submitted to Linux is (necessarily) public; some of SCOldera's code may have been privately submitted to a kernel maintainer, and rejected.

Of course, it's a little hard to argue that you've been harmed by people refusing to use your "precious IP". But this is SCOG's funhouse land of smoke and mirrors we're analyzing, which bears little resemblance to life back here on planet Earth.

[ Reply to This | # ]

Legal question: what can the judge(s) do in such a case?
Authored by: freeio on Saturday, February 07 2004 @ 05:14 PM EST
OK, I see what is transpiring, and it is a monumental waste of the court's time.
Realizing that federal courts are understaffed and way behind, what can a judge
do when faced with such an intransigent plaintiff?

From IBM's vantage point, it is rational to let it go all the way to the
take-no-prisoners and salt-their-fields end. TSG seems happiest when in
full-court delay mode, and is content to do their stock manipulation game in the
press. But since neither are in the _court's_ interest, what can (or should)
the judge do in such a case?

A legal pre-novice would like to know...


[ Reply to This | # ]

"This Is About *Your* Response To The Order" - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 05:17 PM EST
I bet Judge Wells thinks she is traped in a Groudhog day movie. Where Sco
lawyers keep saying the same thing over and over....and over......and over.. :D

[ Reply to This | # ]

Phony copyright infrigement too.
Authored by: _Arthur on Saturday, February 07 2004 @ 05:18 PM EST
And their so-called infrigement claim is no longer for plagiarism, it is for
continuing to distribute AIX after their Perpetual Licence was

As Lewis Mettler mentions on, once more, it is a mere contract
dispute, the alleged infrigement is completely immaterial.

And the contract dispute is based on SCOG creative re-interpretation of
lonstanding contracts between IBM and AT&T, then IBM and Novell, contract
that SCOG itself cannot be bothered to follow.

IBM should agree to SCOG amended Complaint (provided that SCO stipulates
the Trade Secret and the Unix V to Linux code copy were groundless),
because the new complaint is so weak, SCO will be laughed out of court.


[ Reply to This | # ]

The McBrides - a new soap, based in Utah
Authored by: cybervegan on Saturday, February 07 2004 @ 05:18 PM EST
Sort of a mix between The Waltons and L.A. Law...

... but with much more satirical humour.

Any ideas for the script for the pilot show, anyone?

Maybe I'm too late, and Matt Groening has already got the
rights to include this material in the next Simposons, or
maybe Futurama ;-)


Stand and fight we do consider
Reminded of an inner pact between us
That's seen as we go
And ride there
In motion
To fields in debts of honor

[ Reply to This | # ]

"This Is About *Your* Response To The Order" - Judge Wells
Authored by: nvanevski on Saturday, February 07 2004 @ 05:19 PM EST
This is to good to be true. If only the journalists would not mention the
"extreme open-sourcers" or what was the exact phrase...

[ Reply to This | # ]

Proud to be a German (Linux User) ;-)
Authored by: Anonymous on Saturday, February 07 2004 @ 05:25 PM EST
This issue is as long over in Germany as SCO doesn't put
any evidence up to the judge's desk. Presently SCO isn't
able or doesn't want to do so. As an effect SCO has to pay
Euro/$ for every unproven IP announcement. Isn't this even
the kind of capitalism which Darl(ing) always and
everywhere wants to realize? <eg>

Germany is known as one of the very important exporting
nations. How about the U.S. to import some useful law from
us to prevent neverending lawsuits? [đ]

I think that's the only way to force companies (like SCO and
other criminals) to stop their racketeering business.

(sorry for being off topic)

( )

[ Reply to This | # ]

Yeah, right poker face...
Authored by: jgb on Saturday, February 07 2004 @ 05:26 PM EST
Talk about tipping your hand...
"Heise insisted, however, that without IBM's compliance, 'it is literally impossible' for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum it argues exists.
Has Heise just argued that SCOG has no basis for bringing a complaint against IBM (assuming of course that proof in hand is a prerequisite for filing suit)? Also, in stating this, have they not just stipulated that they lack justification for revoking IBM's Unix license (leaving aside the question of whether they have the authority to do so)? I believe that gurgling sound you hear is a 5 billion dollar lawsuit going down the drain.

Or is my foolish enthusiasm causing me to read too much into this?


SCO exists as a negative example to others.

[ Reply to This | # ]

"This Is About *Your* Response To The Order" - Judge Wells
Authored by: Philip Stephens on Saturday, February 07 2004 @ 05:26 PM EST
It seems that SCO is going to pursue their novel theory of derivitive works and
keep pushing to see AIX code until the judge tells them to quit asking for it.

Since they've apparently decided against filing a copyright infringement claim
that involves any direct copying of SYSTEM V code into Linux, instead choosing
to pursue the absurd notion that all of AIX has magically become SYSTEM V code
due to their contract with IBM, I fully expect Judge Wells to deny them their
motion to compel IBM to hand over AIX code. Either that, or she'll continue to
stay the motion until she (or Judge Kimbell) has had a chance to rule on the
correct interpretation of the contract.

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 05:26 PM EST
One may recall that SCO did file in Utah Statr court not Federal Court
where the case now is.

[ Reply to This | # ]

Lawyer Misconduct
Authored by: Anonymous on Saturday, February 07 2004 @ 05:28 PM EST
While everybody is spitting mad at all this nonsense there is actually something
that can be done by us mere mortals as individuals.

Each state has a State Bar Association which, in part, is charged with
monitoring and taking action against lawyers engaged in certain types of
misconduct. While I am not an expert on this, I seem to remember that there is a
document titled "Rules of Professional Conduct." Lawyers are obliged
to follow these rules or face disciplinary action up to and including
disbarment, although there generally has to be pools of blood on the floor or
vast sums missing from client's accounts for this to happen.

Anyway, I seem to recall that making false statements to the Court is a
violation of the Rules. My guess that lawyers who know or "should have
known" that statements made in their pleadings are false, are subject to
legitimate complaints particularly from those who both have supporting
documentation of their lies and are adversely affected by the publicity
surrounding such false statements.

Don't know how to do this but I imagine logging on to the appropriate Bar's web
site would point to both the Rules and the complaint procedure. It would be my
guess that once a lawyer has to spend hours personally responding to such
complaints things get a bit more tidy.

Good quote from somewhere: "A lawyers definition of the truth is any old
lie that can't readily be disproved"

[ Reply to This | # ]

Patent violations?
Authored by: Drew on Saturday, February 07 2004 @ 05:29 PM EST
SCO seeks up to $50 billion in damages from IBM in a federal suit alleging Big Blue violated its Unix contract with the Lindon-based software company. SCO, which recently added patent violations to its list of allegations,...
Nice article IMHO, though itīs not patent violations that were added or am I completely off the track here? I thought SCO didnīt have any relevant patents. Then again, when has that ever stopped them from claiming something? ;)

Where do the $50 billion come from btw? I only remember something like: "5 plus potentially much more", has SCO gone on the record with 50 by now?

[ Reply to This | # ]

SCO doesn't care about the courtroom
Authored by: Anonymous on Saturday, February 07 2004 @ 05:30 PM EST
I still think SCO doesn't care, and hasn't cared for a long time, what happens
in the courtroom. It only cares about spreading publicity.

It's scorched earth, a suicide mission. SCO will become a smoking crater on
behalf of the investors, who are counting on the corporate veil to protect them.
I can only think that Baystar and other late investors have had their
investments, and perhaps some profits, too, guaranteed by people we don't know

Therefore, I really don't understand why SCO has not sued any end users. It
doesn't matter if the lawsuits are frivolous. The publicity value of this would
be a big help to the ongoing stock scam.

And since SCO doesn't care about winning in court and isn't doing any long-term
planning, the number of suits against end users should, in theory, be limitless
-- and so would the breathless articles in the clueless mainstream press, who
would begin counting how many lawsuits SCO has filed and what the potential
harvest in damages would be. The likelihood of collecting these damages would be

I think SCO is missing a golden publicity opportunity here, regardless of the

[ Reply to This | # ]

The Emperor Has No Clothes
Authored by: Anonymous on Saturday, February 07 2004 @ 05:31 PM EST
Finally, after almost 1 year, I am now fully convinced that SCO has no further reason to pursue this lawsuit.

For months Darl McBride has made ridiculous claims regarding the code they supposedly found. As of yesterdays court appearance it's plainly obvious there is no proof. Not now, not in the future, not ever.

Before the Vegas fiasco, it was plausible to believe that SCO themselves thought they had a case. In the months since, Darl McBride has had to know that the case is an unworthy pursuit. It has even been printed in the media, over and over that SCO's case is weak. The evidence before Darl McBride is overwhelming. You'd think he'd get a clue and shut his yapper, then work toward rebuilding his relationships with the IT industry.

Instead, he's going to bring down the burning building with him inside. It's both tragic and shameful.

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 05:36 PM EST
This is even funnier than expected.

We had to figure Judge Wells was getting tired of SCO's childish behavior.

Clearly the judge's upcoming is going to hit SCO very hard. Now the only
question is how? What do you think? Is SCO's entire case going to get thrown
out of court? Will SCO be order to pay some large portion of IBM's legal fees?
Will she order criminal prosecution of Darl and the boys?

I can hardly wait. This is going to be a lot of fun to watch.

[ Reply to This | # ]

This Is About *Your* Response To The Order - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 05:41 PM EST
PJ, you're right. This is humor at its finest. Reminds me of some Dave Barry
novels I've read.

This once again proves that non-fiction is often funnier than fiction...
probably in this case because the "non-fiction" contains so much
fiction from TSG!

[ Reply to This | # ]

OT: Webcast of Darl at Harvard, mirror sites?
Authored by: Kristoffer on Saturday, February 07 2004 @ 05:41 PM EST

I've been trying to watch the archived webcast of Darl's visit to Harvard, but it seems the site is under heavy load ... at least I've not been able to watch the realplayer stream.

Does anyone know of any alternative sites where this webcast is available, or perhaps a transcript?

./ Kristoffer

[ Reply to This | # ]

Not Public Parts...
Authored by: Anonymous on Saturday, February 07 2004 @ 05:51 PM EST
I just wanna know what parts of Linux aren't public... wait...

I just wanna know what SCO says isn't public in Linux...

--andy richter

[ Reply to This | # ]

  • Not Public Parts... - Authored by: Anonymous on Saturday, February 07 2004 @ 08:39 PM EST
    • Expression? - Authored by: Anonymous on Saturday, February 07 2004 @ 09:26 PM EST
&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: TerryL on Saturday, February 07 2004 @ 05:56 PM EST
I'm getting confuesd (again) so maybe someone can tell me what exactly SCOG gets
from delaying and delaying and delaying, apart from a 1 in 300 million (or
however many lines of code are in Linux and/or AIX) chance of eventually finding
something that is of significant proportions and infringing?

Is there some way that they are quietly (and maybe marginal but legal) way for
them to syphon off sufficient money out of the system? Lot's of small sales,
perhaps via proxies or private transfers and then sell or something? I know very
little about gambling (stocks and shares seems as or more risky to me than the
Las Vegas roulette tables).

Maybe they are waiting for some publishers to offer them an advance on a book on
their "story"?

What about the SCOG legal team? They seem to have very little material to work
with? They are getting paid but is it the challenge of making a legal landmark
out of nothing (an unethical one I would say but maybe ethics has a different
meaning to lawyers) that drives them on, like the challenge of climbing Everest
draws climbers?

Someone, please, what exactly is to be gained by the delays, whatkeeps a lawyer
working on a case that is so thin on substance that they have to keep changing
(not amending by adding new things, but completely re-writing) their case?

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

[ Reply to This | # ]

Enderle, Didio & The Magic 8-ball
Authored by: ZeusLegion on Saturday, February 07 2004 @ 06:02 PM EST
After IBM crushes SCO into oblivion and Darl, Sontag and company go to prison
(hopefully), will the media and tech industry remember the idiotic, insulting
and just-plain-wrong comments that have spewed forth from Rob Enderle and Laura
Didio over the last year?

Will the companies that hired them be so foolish as to continue paying for their
"consulting" services when they will have been proven to not have any
clue what they're talking about?

That's like Eve paying the Serpent for his advice on picking apples.

Here's some sage advice for their employers: Save yourselves a few bucks and use
a magic 8-ball instead. The odds are better.



[ Reply to This | # ]

"Now" ?
Authored by: Anonymous on Saturday, February 07 2004 @ 06:04 PM EST
The quote "But to provide the 'line by line' evidence IBM is now demanding, he said, would require Big Blue to release AIX and Dynix code -- as SCO has requested in its own discovery motion." (emphasis mine) implies that the specifity is new, and that IBM's earlier requests were for less detail.

However it's not new - it's been there all along.

IBM's Interrogatory Number 1 (dated 13 June 2003)
Please identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in ķ 105 of the Complaint.

Further explained in the included Instructions and Definitions - Number 10 (e) :
The term "identify" shall mean: ... in the case of alleged trade secrets or confidential or proprietary information, whether computer code, methods or otherwise, to give a complete and detailed description of such trade secrets or confidential or proprietary information, including but not limited to an identification of the specific lines and portions of code claimed as trade secrets or confidential or proprietary information, and the location (by module name, file name, sequence number or otherwise) of those lines of code within any larger software product or property.

[ Reply to This | # ]

Headline predictions for when this is all over ....
Authored by: Anonymous on Saturday, February 07 2004 @ 06:11 PM EST
Judging from today's headlines, Im predicting that when SCO goes down, the press
will still buy Darl's last words. Maybe headlines like:

"IBM narrowly dodges SCO bullet"
"SCO case is over, but serious questions about Linux remain"
"GPL still not proven in court"
"SCO loses, but Enterprises now think twice about Linux"
"McBride: 'Vast Novell,IBM Conspiracy'"
"Microsoft, the real winner of this case"

[ Reply to This | # ]

Wouldn't a win for SCO make everyone else safe?
Authored by: MrEd on Saturday, February 07 2004 @ 06:12 PM EST
If SCO would win this against IBM ( HAWWWWW!! ), wouldnt the money they win from
IBM be considered full compensation for the their losses and preclude them from
going after everyone else? Is this correct legally or am I just dreaming again?

I'm not creative enough for a good sig...

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 06:15 PM EST
Has SCO used the words "Trade Secrets" in any of their SEC filings? If
so they have just admitted they never could prove trade secret violations
against IBM ... (it would be nice if the SEC finally did something).

[ Reply to This | # ]

I almost hope this DOES drag on forever
Authored by: gore on Saturday, February 07 2004 @ 06:19 PM EST

I used to wish this entire SCO/IBM fiasco would end as quickly as possible, but now I've changed my mind. My main worry at the time was the defamation of Linux in the public eye, but it seems that's not really much of a worry anymore. Fewer and fewer people take SCO and their claims seriously.

At this point, it's actually kind of amusing to watch SCO digging their own grave. It's like watching Commodus (Joaquin Phoenix) get the snot beat out of him by Maximus (Russell Crowe) at the end of Gladiator. IBM just keeps pummeling with skill and competence, while SCO retaliates with ridiculous claims and underhanded tactics that achieve nothing. All very satisfying...

As far as I'm concerned, it's just what SCO deserves. They don't have enough credibility left to really harm Linux anymore, so I hope IBM goes the distance and annihilates them completely, no matter how long it takes.

[ Reply to This | # ]

To journalists - what about all those quotes that SCO already knew the code
Authored by: Anonymous on Saturday, February 07 2004 @ 06:24 PM EST
To Bob Mims and other journalists --

Most of you have run quotes from Darl McBride, Chris Sontag or Blake Stowell asserting that SCO have already identified the code (millions of lines, allegations of direct copying, including from System V, -- attributed to IBM), and even already shared it with IBM.

Then as of February 6th, SCO's lawyer, Heise, sits in court, and says it's impossible for SCO to know the code at issue, without further information from IBM.

So my question for you is: When you next talk to the SCO team, could you ask them to clarify their previous statements - and explain how they are supposed to fit with Heise's comments in court.

Here is what Heise said February 6th 2003:
"Heise insisted, however, that without IBM's compliance, 'it is literally impossible' for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum it argues exists.

Here is what to compare it to:

What were all those NDA presentations about?

Why did SCO tell Bill Claybrook that they already had evidence of direct copying by IBM? And not just tell, but go out of their way to "correct" an earlier impression that they gave him, that they didn't have evidence of direct copying. nux/story/0,10801,82070,00.html

One thing that "bothered" him, he said, is that he asked SCO officials if they had any "direct evidence" that IBM copied any System V code into Linux and was first told there was no such evidence. Hours later, he said, SCO officials called him back and told him that they had "misspoken" and that they did have such evidence.
"That's kind of strange," Claybrook said.
Or what about this one:

Clay brook is under the impression that so-called "derivative works" are more important to SCO than any purported acts of IBM, which SCO is suing for a billion dollars, that resulted in directly copying Unix code into Linux. He's a bit confused over whether SCO has evidence of direct copying or not. SCOsource senior VP Chris Sontag at one point denied it did, a statement that was later corrected.

Or this one

< B>Sontag said IBM employees were among those who copied code.
In reading Big Blue's Web site describing Linux contributions, one can "find a lot of areas they mention code contributions they have made from AIX into Linux," Sontag said. AIX is IBM's version of Unix.


SCO said the apparent copying led to its SCOsource strategy. "It's way wider than we expected. We thought our main focus would be with IBM. It still is our predominant effort," Sontag said.

Or this one

the company had identified "significant source code copying issues within Linux, some of which we believe comes from IBM but many others of which come from third parties. All of these are very troubling to us," Sontag said.

And what about the million lines they've supposedly already identified rchives.asp?ArticleID=46153

In that one example, copyrighted code had been misappropriated and there's substantial benefit out there that has still not been rectified. There are other literal copyright infringements that we have not publicly provided, we'll save those for court. But there are over one million lines of code that we have identified that are derivative works by IBM and Sequent that have been contributed into Linux that we have identified and there's been no effort by Linux leaders to start acting and rectify that situation.


In the last 18 months, we found that IBM had donated some very high-end enterprise-computing technologies into open-source. Some of it looked like it was our intellectual property and subject to our licensing agreements with IBM. Their actions were in direct violation of our agreements with them that they would not share this information, let alone donate it into open-source. We have examples of code being lifted verbatim.

And IBM took the same team that had been working on a Unix code project with us and moved them over to work on Linux code. If you look at the code we believe has been copied in, it's not just a line or two, it's an entire section -- and in some cases, an entire program.

Or what the heck did think that had ALREADY found in June 2003:
When we filed against IBM, they were supposed to respond in 30 days, and they filed an extension for another 60 days. So we had about 60 days where we were waiting for IBM to respond. So we turned a group of programmers loose--we had three teams from different disciplines busting down the code base, the different code bases of System 5, AIX and Linux. And it was in that process of going through the deep dive of what exactly is in all of these code bases that we came up with these more substantial problems

On how about this break down McBride gave in July 771

McBride claimed SCO has found three distinct areas of infringement:

Direct line-by-line code taken from SCO's Unix System V, which he noted made its way into Linux from various vendors, "primarily other than IBM" Direct line-by-line code taken from derivations of Unix System V code, like IBM's AIX; McBride noted that its contracts with Unix vendors prevent those companies from donating any code based on or derived from the Unix System V kernel Non-literal infringement which stems from code which borrows from the concepts and structure of Unix

Or from August
< BR> An IBM executive stood up and basically announced, 'We're moving our AIX (Unix) expertise into Linux, and we're going to destroy the value of Unix,' " says McBride, who contends that the statement alone was a violation of IBM's AIX contract. McBride says that's when they started digging deeper and uncovered the copied code.--

Or how about claiming to have already told IBM the code at issue:

From a time line standpoint, one thing that you can expect to see from us, Larry, this is again separate from the IBM issues and the contract issues there. By the way, we have shared the code in question there with IBM under the litigation event. They know what we're talking about there. On the copyright front, expect us to be showing this to the end-use customers as we go forward as one event, and then also the, as David mentioned, you know, a set of customers that we will follow up on, in the time frame that David talked about.--

I could post more, but you get the point.

[ Reply to This | # ]

OT: Media reporting
Authored by: hairball on Saturday, February 07 2004 @ 06:27 PM EST
When this is over it will be time to go back and examine the media's reporting
of this affair. We will need to link each days comments to the GROKLAW posts
for the period. I am getting really sick of media misreporting. I am getting
even more sick of media that claim that they have to be objective when they have
not bothered to even look for the other side of the story.

When all is said and done the media's misrepresentation of the case may leave
them open to SCO shareholder claims of negligent behaviour leading to financial


Hairball Lightspeed

From Here to Eternity in 15 seconds.

[ Reply to This | # ]

This Is About *Your* Response
Authored by: Yobgod on Saturday, February 07 2004 @ 06:33 PM EST
"They still have no proof that IBM sent AIX code to Linux?"

IIRC, what they need to prove is that IBM sent SYSV code into Linux. There's
plenty of AIX code that does not derive from SYSV and that IBM is free to do
with as it pleases.

This is the code they donated to Linux, and this is why TSG cannot provide
examples, because it does -not- derive from their own code.

[ Reply to This | # ]

Everything in Linux, public or not?
Authored by: lordshipmayhem on Saturday, February 07 2004 @ 06:33 PM EST
"Heise countered that "not everything they have put into Linux is
public. . ." "

So let me get this straight. Is Heise trying to convince us that we can't see
every line in Open Source code?

Or is this another marvellous example of lawyers for a supposed software firm
that when it comes to software, don't know whether their earholes are punched or

[ Reply to This | # ]

Keyword is IMPASSE
Authored by: Anonymous on Saturday, February 07 2004 @ 06:41 PM EST
I said it before reading other segments

The keyword is IMPASSE.

The Judge said it, atleast once or twice.

The section it comes in goes something like:

Heise says SCO can't produce any evidence (to identify their case) without
additional discovery from IBM

The Judge says, IBM can't know whether SCO's requests for material are proper
(i.e. within the scope of the case), unless SCO identifies it's case first.

We go round this a couple of times (I wasn't there, but just from reading the
eye witness accounts, I get the impression Heise was kind of being rude to the
judge, ignoring what she was saying).

Eventually the Judge says, then we're at IMPASSE, hints that the case can't go
forward on Heise's proposed basis.

Think about this:

Heise has said they can't go forward unless SCO get what they want from IBM

The judge has said it will NOT go forward on that basis.

Heise repeats SCO can't go forward unless SCO get what they want from IBM

...Sounds to me like Heise is inviting the judge to conclude the case can't go


[ Reply to This | # ]

Top legal gun...
Authored by: Anonymous on Saturday, February 07 2004 @ 06:45 PM EST
"Heise countered that "not everything they have put into Linux is

If it isn't public then what seems to be the problem? It obviously isn't a
violation of trade secrets. It also hasn't been released under the GPL, so IBM
must be using that for their own private affairs (supposedly). I'd bet their
Unix license says that's allowed.

This guy is a piece of work...

[ Reply to This | # ]

Alice in Wonderland
Authored by: PM on Saturday, February 07 2004 @ 06:47 PM EST
I think that Darl Mcbride and Mark Heise will soon be on the receiving end of a
copyright suit from the estate of Lewis Carroll (if Alice is still in
copyright). Mark's arguments to the court sounded so much like the logic in
Alice in Wonderland, that they must surely be construed as a derivative work.

[ Reply to This | # ]

Derived Works
Authored by: arch_dude on Saturday, February 07 2004 @ 06:53 PM EST
Groklawyers analyzed the "derived works" theory last summer, and we
concluded that it wasthe crux of SCOG's case, but that SCOG was deliberately
obfuscating it.

We were correct.

Some adult finally re-wrote their suit in a readable fashion (the second
ammended complaint) and the "derived works" theory is all that is
left. All claims, including hte copyright claim, flow form the theory that IBM
violated the AT&T contracts by revealing IBM's own code to the world.

Now that this it finally clear to all, it should also be clear that SCOG's deand
to see the AIX code is actually completely valid and reasonable. They
legitimately sued IBM based on IBM's onw press releases that stated that IBM was
placing AIX code into Linux.

In my opinion, IBM should simply stipulate that they did in fact release AIX
code belonging to IBM into Linux, and thereby short-circuit the SCOG discovery.
IBM could then move for a summary judgement basedon the fact that SCOG's derived
works theory is a total fantasy. Prior to the new amended complaint, this tactic
would have been soemwhat risky, because the earlier complaint was so unclear
that SCOG migh have constructed soem other strange claim (e.g., breach of the
Monterrey contracts.) This is no longer possible.

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 06:53 PM EST
"..without IBM's compliance, 'it is literally impossible' for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum it argues exists..." They admit they are making baseless claims. The majority of the press continue as they have done for the last year to repeat SCO's baseless claims as if if they are fact. This is having an effect on uninformed end users. It is creating a negative buzz in a mirror image of what guerilla marketers have done in the past. The traditional market of a certain convicted monopolist. Without the hard work of PJ & many others it would be much worse.

[ Reply to This | # ]

Question for PJ
Authored by: Anonymous on Saturday, February 07 2004 @ 06:54 PM EST
PJ, I know you're not a lawyer, but is this kind of thing allowed in civil
cases? I mean fishing for evidence in order to establish the case in the fist
place? Wouldn't that mean that any idiot can sue anyone over anything without
any proof whatsoever and then ask the court to order free for all digging? Don't
you have to come up with at least something first? Some kind of proof that this
other person is actually doing something that isn't right?

I'd be very surprised if the legal system worked that way. But, IANAL, so it

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: dkelley on Saturday, February 07 2004 @ 06:54 PM EST
I suppose I can see how SCO, based on their "contract theory of derivitive
works", (as opposed to the usual
"copyright definition of derivitive works") can suggest that they
cannot comply with the court order without
seeing all of AIX, because, according to SCO's derivative
work theory, all of AIX is a derivative work of SysV,
therefore, anything that IBM donated to Linux from AIX
would infringe, and SCO wouldn't know until they inspected
IBM's code.

However, I don't quite fully understand the Judge Wells' response, as it is not
clear if Judge Wells does not accept SCO's derivitive work theory, or Judge
Wells and SCO are simply "talking past one another". Seems more like
the latter to me, but it, of course, would be nice to see some
evidence of the former.

Daniel Kelley

[ Reply to This | # ]

Dear $diety
Authored by: darthaggie on Saturday, February 07 2004 @ 07:11 PM EST
"Heise countered that "not everything they have put into Linux is public. . ."

This is a the new howler du jour. Either that, I have have to hide the s00p3r s3kr!t d3b!an apt-get know, debian/non-public... ;-)

[ Reply to This | # ]

  • lol - Authored by: Anonymous on Sunday, February 08 2004 @ 01:34 AM EST
Repost: DNA's improbability drive
Authored by: phrostie on Saturday, February 07 2004 @ 07:16 PM EST
forgive the repost, but this was OT on the original thread.
it's a little more applicable here.

yesterday i was talking with a coworker when he made a comment about having his
towel ready and was not going to panic. several people looked at him kind of
funny but kept walking past. i laughed because i have always been a Douglas
Adams fan as well. later i was reading one of the articles about TSGs request
to have ALL AIX code ever written. it was an astronomical figure. i forget how
many Zeros there were, but it was a lot of lines of code.

this morning(i know i'm rambling but there is a point to this) the light bulb
went off. TSG is taking the improbability drive aporoach to finding common
where is an MIT rocket scientist when you need them.

it does not matter if IBM contributed code. with that many lines of code you
will find "lines" that are similar.

the same would hold true if you did the same comparison of every line of every
version of windows. you will find similar code. that does not mean that
Microsoft has stolen code from linux or contributed to it.

it is a mathmatical probability.
they only want a few lines to wave around so they can say "see, here it

Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 07:27 PM EST
SCO is in big trouble. Its only argument is a point on which the judge has already ruled against them. Saying it again and again will get them nowhere, and besides, it annoys the judge.

Also: PJ says they filed on a hunch. Actually, I think they filed on nothing, they never thought there was any SCO code in Linux. It was more of a bluff, and IBM didn't flinch. So now all they are left with is saying they have a hunch.

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 07:55 PM EST
"Heise countered that "not everything they have put into
Linux is public. . ."

What he's refering to here are IBM contributions that did
not make it into any public tree, i.e. IBM may have
e-mailed Linus some code, which Linus rejected, IBM gave
up, therefore it never made it into any public forum.

Why do they consider that important? Remember, this is a
CONTRACT case. Any IBM breach does not depend on their
succesfully getting code into the kernel, but merely in
the act of attempting to do so. Think of it as an
Attempted Murder charge....


[ Reply to This | # ]

I wonder, what if IBM wins ?
Authored by: Night Flyer on Saturday, February 07 2004 @ 08:02 PM EST
What if IBM eventually wins and wins the suite for damages and court costs?

Could IBM accept all (UNIX) patents, licenses and business assets in lieu of
cash (SCO being a faint financial shadow of itsself by that time.)?

This would be an interesting wrinkle.


My clan Motto: VERITAS VINCIT ! (Truth Conquers)

[ Reply to This | # ]

What about Red Hat now...
Authored by: Nivuahc on Saturday, February 07 2004 @ 08:39 PM EST
I may be way off (newborn + lack of sleep + lots of overtime = not always thinking clearly) but isn't the Red Hat case 'on hold' because the IBM case was supposed to be addressing the same issue?

If so, and SCO is now dropping the original intent of the suit and sticking with 'it's a contract dispute' then doesn't that mean the Red Hat case can go forward?

If the Red Hat case is, at its core, saying 'SCO continues to spread lies about Linux and the Linux Community, including Red Hat, in the press and it's hurting business for Linux' and Darl keeps running his mouth about the 'millions of lines of code' and the threats to sue end users... why can't the Red Hat case proceed?

SCO-Logic: If you lie about something long enough, people will eventually believe it. And if they don't believe it, you aren't yelling loud enough.

[ Reply to This | # ]

"This Is About *Your* Response To The Order"; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 08:47 PM EST

There is no way that SCOX is capable of running the "diff" program on
their source and on what is in linux, and when they find overlaps, look for the
linux source files that were contributed by IBM. Further, given this list of
possible infringing files, nobody could ask the court to force IBM to present
THOSE files and their histories from AIX or Dynix.

No possibility. NONE. This is quite frankly, beyond their (or anyone's)
capability. Don't even suggest that it could be done! On the record, before
the honorable Judge Wells, it's known to be literally impossible.

[ Reply to This | # ]

Plan 9 From Outer Space...
Authored by: Anonymous on Saturday, February 07 2004 @ 09:14 PM EST
If anyone out there remembers this film, the parallels between it and this case
are amazing ;)

[ Reply to This | # ]

I'm not so sure that IBM is "suffering" here
Authored by: valdis on Saturday, February 07 2004 @ 09:31 PM EST
Remeber that IBM has its goals and philosophies. Long-term stability is something that they value highly - so they're quite willing to accept a 2 year or so period where they're paying laywers and seeing a slight slowdown in the uptake of Linux, in return for knowing that the Linux landscape is absolutely, positively safe from another such attack.

And it may very well be that IBM's balance books are actually showing a net gain from this whole sorry mess. Remember that "good will" is something that has a dollar value and is listed on the balance sheet.

And I'm positive that the dollar value of "To the geeks who will be making purchasing decisions in the next decade, IBM is the company that made Linux safe to use" is much higher than the (for IBM) small amount they're paying to Marriot and company....

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: sbungay on Saturday, February 07 2004 @ 09:35 PM EST
This reeks of incompetence on behalf of SCO, and that has me a ever so
slightly concerned... it's something Sun-Tzu said in "The ancient Art of

"A military operation involves deception. Even though you are competent,
appear to be incompetent. Though effective, appear to be ineffective."

Either SCO is VERY clever or INCREDIBLY stupid, I like to think it is the
latter, also because of something Sun-Tzu said;

"Victorious warriors win first and then go to war, while defeated warriors
go to war first and then seek to win."

And it would seem SCO, with no evidence in hand for ammunition, knows it is a
defeated warrior marching into battle hoping against all odds for a win, because
if they do win the reward is huge.
IBM on the other hand seems to be on strong ground, and looks like it has
already won the war. It knows the enemy is a paper tiger and is going to do
battle because it must not allow baseless claims such as this one to set a
precedent. Me thinks (and fervently hopes) that the SCOl-yard bully is about to
be given a bloody nose and sent packing.

The best victory is when the opponent surrenders of its own accord before there
are any actual hostilities...It is best to win without fighting.
Sun-tzu, The A

[ Reply to This | # ]

SCO knows what IBM contributed to Linux -- no, wait--that's what SCO is fishing for
Authored by: Anonymous on Saturday, February 07 2004 @ 09:54 PM EST
"Heise countered that "not everything they have put into Linux is
public. . ."

For this to be true, SCO has to have knowledge of what they believe are IBM's
public and non-public contributions to Linux. So why does SCO need a fishing
expedition into AIX/Dynix before they can produce SCO's IP that has supposedly
made its way into Linux and is causing SCO so much harm?

What is in Linux is public and freely available from many sources--SCO needs no
fishing expedition into AIX/Dynix here.

So it must boil down to that troublesome non-public IP in Linux that Heise says
he knows about. First, if the IP is non-public, it is not in Linux (that
bothersome GPL again). Second, how is SCO being harmed by IP that is non-public
and therefore is not in Linux. Third, if Heise and SCO know about this
"non-public IP", why do they need a fishing expedition into AIX/Dynix
to find what they already know about?

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: blacklight on Saturday, February 07 2004 @ 11:15 PM EST
"Heise insisted, however, that without IBM's compliance, 'it is literally
impossible' for SCO to itself provide direct proof of the
Unix-to-AIX/Dynix-to-Linux continuum it argues exists."

Either the truth comes out of the mouths of babes especially babes in the woods,
and/or Heise was so stressed that he blurted out the truth. And to think that
the Darl was going around saying that the SCO Group's evidence is so strong that
they don't need discovery.

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: blacklight on Saturday, February 07 2004 @ 11:32 PM EST
"'We're at an impasse and we can't be at an impasse and have this case
remain at a standstill,' Wells responded."

Unless the SCO Group gets a struck-by-lightning type of conversion and starts to
state its allegations as required by required by Judge Wells, the Group's
lawsuit is doomed. So far as the SCO Group is concerned, no more huddling for
cover while the bullets are clanging and ricocheting off the rocks: the judge is
essentially telling the Sco Group to "MOVE!". In addition, Judge Wells
is clearly intimating that she does not intend to keep the SCO Group as a
permanent item on her docket, that she needs to see cooperation and that she is
not seeing it.

'You've made your point -- I'm just not certain I agree.'"

Not a hint of good things to come for the SCO Group.

I surmise that by next week, Judge Wells will have conferred with Judge Kimball
and is going to hand the SCO Group an order spelling out "with
specificity" what the SCO Group must do to be considered as complying with
the requirements of the discovery process.

[ Reply to This | # ]

&quot;This Is About *Your* Response To The Order&quot; - Judge Wells
Authored by: Anonymous on Saturday, February 07 2004 @ 11:39 PM EST
After all the misrepresentation, isn't this frivolous and fraudulent yet.
Shouldn't anyone be concerned with a complaint to the Bar? Are they not clearly
and specifically guilty themselves of anything? at all? GD it.

[ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Sunday, February 08 2004 @ 12:11 AM EST
    "Heise countered that "not everything they have put into Linux is
    public. . ."

    WHAT! I have been been building the kernel all these years without all of the
    source? I have been wasting my time? Where is my coat. I'm going to go sell
    some blood so I can afford to buy Microstuffitwherethesundoesntshine friggen XP!
    According to scumx Linux has been lying to us for what 12-13 years. Incredible
    absolutely incredible.

    LOL and my other car is a Ferarri.

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Sunday, February 08 2004 @ 12:23 AM EST

    I don't know quite how to put this, but..

    Get Some Sleep.

    Sorry for posting this as an anonymous coward, but I've been there, done that
    with regards to EUCD. I essentially burned myself out, thinking that I was the
    only one that understood the madness, and had to educate the rest of the world
    before it was too late.

    You're not in this alone. The world won't stop if you allow yourself to get some
    sleep or do something else for a few days.

    [ Reply to This | # ]

    Question About SCO's next move
    Authored by: Anonymous on Sunday, February 08 2004 @ 12:39 AM EST
    I know SCO are dragging their heels.

    But how likely are they to be held in contempt? Can't SCO just submit all of
    Linux (or at least the most probable parts) and all of their various UNIX source

    Is it because they are orderd to be specific and if they're not specific enough
    the case will get thrown out? Will it matter in any way if they submit a bunch
    of stuff that is immaterial to the case?

    [ Reply to This | # ]

    Why does SCO want AIX?
    Authored by: Anonymous on Sunday, February 08 2004 @ 01:00 AM EST
    Maybe this is obvious to others, but not me--if in their wildest dreams they get
    their mitts on AIX source code, then what? (I understand they already have Dynix
    code). Is the idea to do a line by line comparison and then say, "ah hah!
    You put xxx lines of code into Linux!" Which seems to be the basis of their
    amended complaint. What, from SCO's standpoint, could they hope to find?
    Material that fits a more traditional definition of derivative works? (i.e.
    changed from SCO's Unix code and added to both AIX and Linux verbatim). If they
    can prove Unix IP actually belongs to SCO and not Novell, and they manage to
    find identical source code in Unix, AIX, and Linux, then at least superficially
    it may look like they have a stronger case (not withstanding the massive
    redundant nature of computer code, to a lay jury it may look very much like
    copied code).

    [ Reply to This | # ]

    re: 'This Is About *Your* Response To The Order' - Judge Wells
    Authored by: Anonymous on Sunday, February 08 2004 @ 01:14 AM EST

    The contempt that the McBride Brothers et al show the court is truly amazing. Their contempt for the court is as palpable as their contempt for the open source community. In fact, the record suggests that anyone who is not a member of the 'McBride Brothers et al' club is considered by them to be an appropriate target for their libelous contempt.

    I hope the court recognizes this contempt and deals with it accordingly.

    Contempt Con*tempt" (?; 215), n. [L. contemptus, fr. contemnere: cf. OF. contempt. See Contemn.] (Law) Disobedience of the rules, orders, or process of a court of justice, or of rules or orders of a legislative body; disorderly, contemptuous, or insolent language or behavior in presence of a court, tending to disturb its proceedings, or impair the respect due to its authority.

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Sunday, February 08 2004 @ 05:19 AM EST
    From what I believe SCO own the rights to SYS V unix code (or whatever it is
    called). AIX is no longer SYS V, as they have improved the code, changed parts
    etc. Therefore any additional code added by IBM is IBM's property.

    If they cannot find any infringing code in their version of UNIX, then how can
    it be breaking copyright?

    SCO do have a right to protect THEIR property, not IBMs additions, and I don't
    believe for a second that Linux has any SYS V code...

    [ Reply to This | # ]

    maybe someone could really MAKE a movie... :)
    Authored by: Anonymous on Sunday, February 08 2004 @ 06:27 AM EST
    it WOULD be fun. What about Actors? Keanu Reaves as Devils Advocat Heise?
    Whoopie as a singing judge?

    Its a musical... "put that claim back where it came from... so happy - so
    happy - and cut"


    [ Reply to This | # ]

    Seven Habits of Spectacularly Unsuccessful People
    Authored by: Anonymous on Sunday, February 08 2004 @ 07:03 AM EST
    In the last issue of the London Business School's magazine, there's an article
    by a professor of management entitled 'Seven Habits of Spectacularly
    Unsuccessful People'.

    Sydney Finkelstein identifies the seven bad habits as these.
    1: They see themselves as dominating.
    2: They identify so completely with the company that there is no clear boundary
    between their personal interests and the corporation's interests.
    3: They think they have all the answers.
    4: They ruthlessly eliminate anyone who isn't 100 per cent behind them.
    5: They are consummate spoke-persons, obsessed with the company image.
    6: They underestimate major obstacles.
    7: They stubbornly rely on what worked for them in the past.

    Does this sound like anyone we hear a lot about?

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Sunday, February 08 2004 @ 08:13 AM EST
    PJ, didn't IBM's motion to compel (that the judge ordered SCO to comply with)
    demand that SCO identify ALL code in either the Linux kernel or in any Linux
    distribution that SCO claimed ownership of? Doesn't this include the 71
    (duplicated) ABI files in SCO's last letter, any other SysV code, as well as the
    AIX or Dynix code listed?

    [ Reply to This | # ]

    All things have become clear.
    Authored by: emmenjay on Sunday, February 08 2004 @ 08:32 AM EST
    I'm feeling a bit Zen-like as the pieces all fall into place. From Mr McBride's perspective (as opposed to say... reality)
    1. Linux is becoming seriously cool.
      • People who once threw vast anounts at SCO are now throwing them at Red Hat, Novel, IBM and others.
      • This is bad
    2. Linux hackers are stupid, or they would work for SCO.
      • Anything good in Linux must be stolen from SCO
      • All we need to do is get the Linux hackers to prove it for us.
    Perfectly clear, if you swallow the right mushrooms and squint your eyes just right.

    Man, I'm getting the munchies.


    [ Reply to This | # ]

    "It's not personal, it's business"
    Authored by: dkpatrick on Sunday, February 08 2004 @ 09:20 AM EST
    While it's fun to flay SCO and McBride for apparent stupidity, cupidity, and
    PDiddy, they are not incompetent. And while we'd like to see the courts nuke SCO
    in some grand and public fashion, that's not going to happen either. The case
    will wind its way through the legal system at its own pace and eventually will
    result in IBM's success.

    And at the end, when McBride is challenged about his handling of the situation,
    he will say "The courts screwed us. They wouldn't let us get the
    information that IBM withheld. We still believe in the merits of the case but
    IBM, with its armies of lawyers, had the courts' ear. They are so big and we are
    so small. It wasn't fair. SCO's failure was caused by IBM and the courts."

    SCO goes away, McBride has millions of dollars in his pocket and an excuse for
    his failure, and Linux goes on.

    McBride says and does things that are clearly wrong both for SCO and its
    stockholders as well as technology in general. But as was pointed out in a prior
    post, in the context of unsuccessful leaders, all leaders have a seed of self
    delusion where they truly believe the lies and misstatements they make. McBride
    has no personal liability in what he does at this point. He will not go broke.
    He will not go to jail. He will probably get another job.

    We should all be so lucky :-)

    [ Reply to This | # ]

    It's all in the delivery...
    Authored by: adamruth on Sunday, February 08 2004 @ 10:30 AM EST
    "'We're at an impasse and we can't be at an impasse and have this case
    remain at a standstill,' Wells responded. 'You've made your point -- I'm just
    not certain I agree.'"

    I was there, and it was the way she said this that piqued my interest. She
    said, "We're at an impasse and we can't be at an impasse and have this
    case..." Then she paused looking for the right words. At the time I
    she was going to say "Continue", which may have been what she was
    thinking, but not something that she may have thougt was premature.

    I think she's really on to SCO and the reason she needs to provide a written
    response is that she wants to take some time to go over IBMs references to
    cases that define derivitive works (she did ask Marriott what cases he was
    using to support his claim of how you determine derivitive works). I bet she's

    on to SCO and wants to make sure that the ruling is solidly grounded in case
    law and she can back up her decision of slapping down SCO.

    Anyway, that's my vote.

    [ Reply to This | # ]

    OT- Threaded vs Nested view
    Authored by: Anonymous on Sunday, February 08 2004 @ 12:22 PM EST
    So I pick <Nested> as my preferred view for reading the posts. However, if
    I then choose to comment and post said comment, upon returnning to the posted
    comments that I had been reading my browser displays them in the Groklaw default
    of <Threaded>. Is this something I can fix in my browser, or something
    that could be fixed by MathFox, say with a persistent cookie, as I traverse
    between reading and posting?
    Thanking you all in advance for your considered and reasoned replies. ;)

    [ Reply to This | # ]

    Scoreboard for this trial
    Authored by: Anonymous on Sunday, February 08 2004 @ 01:37 PM EST
    Wait, please enumerate the possibilities again, can someone get a scoreboard?

    Fact. Code from IBM was contributed to Linux:

    Possible future outcomes of this particular case:
    1. Specific code not owned by IBM was copied to Linux (copyright violation).
    2. Specific code owned by IBM but under non-disclosure/non-compete agreement
    was contributed to Linux (contract violation).
    3. No restricted code was contributed to Linux.

    Outcome one is relatively easy to prove, if it exists. It is assumed that the
    definition of derivative work according to copyright is included here. In that
    case, IBM pays some damages and the inappropriate code is removed from Linux.

    Outcome two seems to depend on the interpretation of the contract. If it is
    found to be true, IBM pays some damages, but the actual code in question is not
    SCO's copyrighted IP or else we would have had outcome one. Thus the code in
    question gets to stay in Linux (?).

    It is possible that outcome one and two could happen simultaneously, more

    Outcome three means Linux and IBM folks go home happy.

    After that is over, substitute Novell, or RedHat, and repeat until SCO runs out
    of lawyer money or Novell shows that SCO did not have the rights to Unix in the
    first place.

    (I'm patiently ignoring 4. the resolution of IBM and RedHat's countersuits, and
    new action with Novell. Someone could expand the above with the countersuit

    So, is that it now?

    [ Reply to This | # ]

    TSG, Derived works and the GPL...
    Authored by: Anonymous on Sunday, February 08 2004 @ 01:39 PM EST
    What about the following scenario:

    - TSG steers the case towards the 'derived works' claim. AIX is, according to
    TSG, a work derived from their 'IP'. They claim certain rights to derived works,
    as stipulated in the contract they have with IBM and others. Those contracts, I
    presume, give the contract partner a license to do certain things with their
    - This standpoint is ridiculed by everyone. OK, 'Unix' might fall under their
    'IP' and is thus covered by the license, but something which is a few
    generations removed from 'Unix' is not.
    - The judge agrees: AIX is not a derived work as such, and thus does not fall
    under this license. So, TSG can not tell IBM what (not) to do with AIX.
    - TSG loses the case. Darl & co. do not go to jail, they get to keep their
    money, Boise loses yet enother case, film at 11.

    A few months later, some company is found to have violated the GPL license. They
    took a piece of code which was released under the GPL, and used it in a
    closed-source, non-free product. This violation happened some time ago, so the
    current version of the non-free product has changed quite a bit since the
    inclusion of the GPL code.

    The FSF gets word of this violation, and threatens to sue the perpetrator. Since
    the accused company does not seem to want to better their ways, this eventually
    happens. The lawyer for the accused company cites the verdict in the SCO vs. IBM
    case as a precedent for this case and states that the so-called 'viral' aspect
    of the GPL clearly is not applicable here, as the non-free product is not a
    direct descendant from the GPL code.

    In other words, in case TSG loses this case on these grounds, can a company (or
    individual) take a piece of GPL'ed code, change it, change it again (making it
    an indirect descendant), use it in a non-free product and claim that the GPL is
    not applicable?

    Being from Europe (the Netherlands), living in Sweden, having seen Janet
    Jackson's boob on the public television station's prime time news without the
    nation rising up in outrage, I do sometimes feel that the US of A resembles
    Wonderland as described by Lewis Caroll. Everything can happen there...

    [ Reply to This | # ]

    A little off-topic...but...
    Authored by: Anonymous on Sunday, February 08 2004 @ 01:44 PM EST
    SCO (poor Little Lambs) have been bleating that MyDoom has knocked their website
    away. So they've had to abandon for awhile.

    Another mistruth.

    Try just

    I've been testing it a couple of times a day. Works fine. Any UNIX company worth
    their salt would've had and respond identically, and they
    should've known this. As will their customers (both of them) who are a tad


    [ Reply to This | # ]

    This came to me in a dream...
    Authored by: spambait42c on Sunday, February 08 2004 @ 01:47 PM EST
    Our six-year old had a nightmare last night and crawled into our bed, which woke
    me up.

    In the sleep-fogged aftermath of that, I came up with the following theory of
    what's happening next. This is, of course, both irrational and uninformed, but
    if there's anything valuable in it, this crowd will run with it.

    I don't think Judge Wells is going to be issuing a lot of decisions next week.
    I think Judge Kimball is.

    1) SCO's petition to amend claims is denied. If SCO wants to persue those
    claims, they have to file a new suit, after IBM's counter-claim suit is

    2) IBM is invited to submit a motion to dismiss with prejudice because (1)
    plaintiff has failed to show a reasonable cause of action (2) has abused the
    discovery process and (3) has shown the intellectual agility of my two year old.
    IBM is also invited to request sanctions and reimbursement of costs to date.
    Counter-claims will continue discovery and go to trial.

    3) SCO is ordered to comply with all counter-claim related discovery within 30
    days or face contempt-of-court charges.

    4) I don't think there will be enough left of SCO's case to need a #4.

    So, am I nuts?

    [ Reply to This | # ]

    Suppose the judge just ends discovery
    Authored by: Anonymous on Sunday, February 08 2004 @ 01:59 PM EST
    As of right now, SCO has listed some specific claimed infringements in Linux code, in their copyright claim filing. They say they're unable to find more unless they get more discovery, which the judge has declined to give them.

    Could the judge simply end discovery, limiting the claimed infringements to what SCO has disclosed to date? SCO would be barred from claming any additional infringing material in future. If IBM agrees, that breaks the impasse, and the case goes to trial on the narrow issues already identified.

    [ Reply to This | # ]

    Obviously those zealots over at SCO
    Authored by: Anonymous on Sunday, February 08 2004 @ 03:24 PM EST
    How sahmeful for the SCO community to attack our servers and to publicly
    encourage them to continue to be attacked. In fact the SCO community has failed
    to condemn the attacks which shows they are the sources of them. This is a
    shameful act by those SCO hackers.

    :) What do you want to bet we won't see that kind of statement on CNN and the

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Sunday, February 08 2004 @ 05:29 PM EST
    IBM didn't copy anything from AIX to Linux. (Things were given from much older
    sources, like OS/2 and expired patents). So, it would not be clever to stipulate
    that IBM did.
    SCO's liabilities are greater than their assets. Accepting SCO wholesale as
    compensation would again not be a clever idea.

    [ Reply to This | # ]

    Why Darl was brought into SCO/Caldera
    Authored by: Anonymous on Sunday, February 08 2004 @ 07:25 PM EST
    I think that Darl was brought in to shut SCO down. I mean any rational person
    can see that his comments are ludicrous! I mean, what is the amount they want
    from IBM now? 5 Billion?? I think Canopy should be heavily investigated for this
    as well as the other companies involved :)

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Sunday, February 08 2004 @ 09:09 PM EST
    Perhaps he meant that there exists code that has been accepted into Linux that
    was not /previously/ public.

    If SCO is trying to prove that code has gone from AIX into Linux, it needs to
    know that the code was in AIX in the first place. As far as I know, the AIX code
    is not public. So it would be quite feasible for code to go from
    "private" AIX code to "public" Linux code, and if this had
    happened then SCO wouldn't be able to determine the fact from publically
    available information.

    If he has said "Not everything they have put into Linux /was/ public"
    then what he says would make sense.

    It seems unwise to underestimate the enemy. That said, SCO makes underestimation
    somewhat difficult.

    [ Reply to This | # ]

    ...but what if this didn't involve OSS?
    Authored by: Anonymous on Sunday, February 08 2004 @ 11:04 PM EST
    The question I've had since the beginning is how do cases like this usually play
    out when they don't involve any Open Source? How does one go about proving that
    another company stole lines of your code if you don't have the code itself?

    For example...let's say I write an office type application containing a million
    or so lines of code. I then let IBM see the code to help with integrating it
    into Lotus Notes. A few months/years later, MS office shows up with the exact
    same functionality. After investigating, I find some of the cfg and header
    files to be remarkably similar and most of the file names are the same. Given
    that I wouldn't have the MS source, how would I go about proving they stole it
    or received it inappropriately from IBM? I don't see any way other than asking
    a court to either a.) have IBM to fess up -or- b.) have MS provide the code.

    As flimsy as SCO's case seems, it has always appeared to me that they MAY have a
    point when they keep re-requesting the code...

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Monday, February 09 2004 @ 01:33 AM EST
    They claim:
    "Not everything they've put into Linux is public."

    So, if they were to recieve all the versions of AIX they've asked for, what will
    they compare it to? Sys V? And how will this prove that code was copied into

    And, even if this were true, exactly who are they suggesting has benefitted from
    this non-public code? Who has it?

    I really hope these questions were asked, although, I suspect not.

    PS I like the Judge - not one to make a rash decision.

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: Anonymous on Monday, February 09 2004 @ 01:37 AM EST
    Another thing:

    I bet they haven't provided the "evidence" that SCO Group provided
    under NDA to the court!

    [ Reply to This | # ]

    Missing the big picture...
    Authored by: Anonymous on Monday, February 09 2004 @ 06:16 AM EST
    This case has gone on so long and taken so many twist and turns, we're in danger
    of missing the big picture...

    SCO are really only claiming now that AIX is a derivitive work of their Unix
    code and that it is theirs to do with as they see fit (not IBM's).

    Everything else hangs off this, without it they are sunk.

    I believe IBM have admitted there is AIX code in Linux, but this is
    "new" code that was totally IBM written from scratch. SCO's
    interpretation of the law is that this doesn't matter, it still belongs to SCO,
    hence the need to compare Linux against AIX, not Linux against SYSV.

    Everyone else disagrees with SCO's "interpretation" of course !

    However, if SCO can convince the judge that their reading is true, or even
    worse, make the judge kick the case "upstairs" for clarification, then
    we may see a whole new battle open up lasting several years.

    I am more concerned now that at any point in the past :(

    [ Reply to This | # ]

    Authored by: Anonymous on Monday, February 09 2004 @ 03:38 PM EST
    Would it be fair to conclude that SCOX is not claiming copyright violations, but
    they can't prove the violations because [i]they don't have the source code that
    they claim they own?[/i]

    [ Reply to This | # ]

    &quot;This Is About *Your* Response To The Order&quot; - Judge Wells
    Authored by: jmichel on Monday, February 09 2004 @ 07:38 PM EST
    The book industry must be hurting as bad as the record and movie industries
    because I haven't bought much of anything since this saga began. I have been
    too busy keeping up with what goes on here. Leave it to Darl to screw up the
    economy even more than President Bush has already done.

    [ Reply to This | # ]

    "This Is About *Your* Response To The Order" - Judge Wells
    Authored by: Anonymous on Monday, February 09 2004 @ 09:19 PM EST
    If the public is getting fed lies from Darl et al, imagine the line of smelly
    poo that the board of directors are getting fed. If I was a board member of
    SCOG, the first thing to go would be Darl and his litigous revelers.

    This really makes the board of directors look like idiots but Darl and crew
    doesn't appear to care.

    [ 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 )