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Friday's Hearing - The Transcript as Text
Monday, February 09 2004 @ 11:12 PM EST

This was the fastest transcript we've ever done. Thanks to everyone, including Dan, Bill Denney, Michael Cleverly, Frank Jaffe, SkArcher, Ted Powell, Richard Hutchison, Jan Merka, tgf, Rand McNatt, Thomas Frayne, and many others, including one volunteer who said, "This is a gift culture. Enjoy the gift." I am. Now, let's make sure there are no typos, other than the ones that appear in the original. Here is the PDF. My analysis and commentary is in blue text, interspersed throughout. The parts that seem central and most important to the arguments presented that day I have made red text.

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH CENTRAL DIVISION
THE SCO GROUP, INC.,

a Delaware corporation,

Plaintiff,

vs. 

INTERNATIONAL BUSINESS

MACHINES, a New York

corporation,

Defendant.
CASE NO. 03-CV-294DK
BEFORE THE HONORABLE BROOKE C. WELLS

-----------------------------------
February 6, 2004

Motion Hearing


A P P E A R A N C E S


For Plaintiff:

 BRENT HATCH
[address]

MARK J. HEISE
[address]

KEVIN McBRIDE

For Defendant:

DAVID R. MARRIOTT
[address]

TODD SCHAUGHNESSY [sic]
CHRIS KAO
AMY SORENSON
[address]
February 6, 2004
10:00 a.m.



 P R O C E E D I N G S

THE COURT: Good morning, ladies and gentlemen.

MR. MARRIOTT: Good morning, Your Honor.

THE COURT: Going forward this morning in the matter of SCO versus IBM, and may I ask counsel for the respective parties to make their appearances, please.

MR. HATCH: Your Honor, Brent Hatch and Mark Heise and Kevin McBride for the plaintiffs, the SCO Group.

MR. MARRIOTT: Your Honor, David Marriott for IBM. With me are Todd Schaughnessy, Chris Chow and Amy Sorenson.

[Note that earlier our eyewitnesses did not mention Chris Chow and Amy Sorenson as being present on behalf of IBM.]

THE COURT: Thank you. 

Ladies and gentlemen, the record should reflect that I requested to meet with counsel in chambers for the purposes of determining those issues which would be addressed this morning, and I believe we have successfully identified how we are going to do that.

[For those speculating on the purpose of the meeting in chambers, this is the stated purpose, to get clear what would be argued and what didn't need to be. You'll note later SCO mentions that they goofed and filed an affidavit instead of a request for enlargement, and likely this is when it was brought to their attention by the judge.]

First it would be my request that we go forward to hear argument as to whether or not SCO has complied in accordance with the Court order of December 12th, and what if any measures need to be addressed or action taken with regard to that.

Secondarily, we will address SCO's motions for reciprocal discovery.

[SCO did, then, have an opportunity to address their Motion to Compel.]

So, given that circumstance then, Mr. Marriott, do you wish to go forward and address the issue of whether or not SCO has complied with the Court's order?

MR. MARRIOTT: Yes, Your Honor.

Thank you, Your Honor. The simple answer to Your Honor's question as to whether the SCO Group has complied with the Court's order is that the SCO Group has not complied, Your Honor, as we lay out in the submissions that we made to the Court yesterday afternoon.

[These submissions presumably are IBM's Report on SCO's Compliance and attachments.]

As Your Honor knows the Court ordered SCO by January 12th to provide documents responsive to IBM's document request and to provide full and detailed and complete answers to IBM's interrogatories. There is, I think, no dispute, Your Honor, that the SCO Group has not provided all of the documents that are responsive to IBM's discovery requests, and that is reflected in correspondence between counsel which is an attachment to our submission of yesterday.

Most notably perhaps, Your Honor, is that the SCO group has acknowledged that it has yet to produce documents from approximately 20 of the custodians of responsive documents, and to date in the case it is my understanding, Your Honor, that the company has produced documents from the files of only 20. So about half of the custodians have yet to have their documents produced in the litigation.

So, yes, Your Honor, there is no question that additional documents were produced. We do not dispute that. We appreciate that. But as to whether or not the SCO Group has complied with the order I think the answer as to documents is that it did not.

[Groklaw has posted SCO's Source Log of what it turned over so far and its Revised Supplemental Response to IBM's First and Second Interrogatories is here, referred to by Marriott.]

THE COURT: Assuming that I were to find that it had not, what are you suggesting should occur?

[ Here, the judge is giving IBM the opportunity to ask for a dismissal of some or all of SCO's claims.]

MR. MARRIOTT: I think what Your Honor should do in that regard is to, in consultation with SCO, determine by what date I hope in the reasonable and imminent future they can comply with the request and order them to do that by that date.

[Notably, IBM does not take the opportunity offered. Instead, they make clear that they intend to go forward, that they intend to let this case play out all the way. They want a definitive decision, I'm guessing, on the GPL, as well as a full clearing of their good name, not a TKO.]

Now, with respect to the interrogatories, Your Honor, as you know when we were last here we explained that as we understand and then understood the SCO case, their theory of the case was that IBM had taken code from Unix System Five and dumped that code into the Linux operating system. We asked the Court to require them to identify by file and line of code, what it is they say we took from Unix System V, and where it is exactly in Linux that they say that we put that. Your Honor ordered them to do that.

In response to that order, SCO does essentially three things. First, Your Honor, they abandon any claim that IBM misappropriated any trade secrets. They fail to cite a single trade secret allegedly misappropriated by IBM

Second, they fail to identify a single line of Unix System V code which IBM is alleged to have dumped into Linux. Third, what they do is they clarify their theory of the case. The theory of the case appears to be, Your Honor, from the supplemental submissions, not that IBM dumped code from Unix System V into Linux, but rather that IBM took code out of its flavor of Unix known as AIX and Dynix and dumped that code into the Linux operating system.

Now, specifically SCO identifies 17 files, parts of 17 files, which it says were improperly contributed. With respect to many of the lines of code in those 17 files they properly identify which line it is they say we took from AIX or Dynix and where it is they say we put it in the Linux operating system. With respect to many the disclosure is, I think, sufficient. There are, nevertheless, a number of files as to which they have not properly identified the lines of code which they say were misappropriated, and we would like to have them do that.

More fundamentally, Your Honor, we asked in our interrogatories in at least seven different spots for them to link up the AIX Dynix code which they say we dumped into Linux with the System Five code from which they say it is derived. The theory here appears to be, Your Honor, that IBM cannot properly contribute code from AIX or Dynix even if it is its own home-grown code, if it ever at some point in time touched the AIX or Dynix operating system.

The notion is, Your Honor, that somehow IBM is prohibited from disclosing that code because it derives it in some way from Unix System V. What we asked for in our responses is that they tell us, if that is the theory, exactly where it is in Unix System V that that code derives from. Now, if it is the SCO Group's position, Your Honor, that the 17 or so files which they say we dumped from AIX or Dynix into Linux do not derive from Unix System V, they are not derivative works of Unix System V, then they need merely tell us and much of our concern with respect to this issue will disappear. But it is not at least my understanding, Your Honor, that that is their position. Insofar as it is not their position we want to know exactly what line of code these 17 files, or whatever files in the future they identify, are supposed to have derived from.


[This is IBM trying to get SCO to state its case clearly. Is there System V code involved? If not, then IBM would like a clear statement to that effect. If so, they would like to know exact lines of code involved. If it's only a question of derivative code, they'd like to know exactly where System V appears in the derivative chain, that is, what code in System V is later showing up in AIX and then in Linux?]

In addition, Your Honor, the interrogatories that we propounded asked SCO, and I think in very clear terms, and this is in Interrogatories 12 and 13, to identify exactly what it is in Linux that they contend they have rights to. Irrespective of whether or not IBM is supposed to have contributed this code to Linux, and that matters not just for the case against I.B.M. but also for our counterclaims against the SCO Group.

[Here, IBM once again asks for what part of Linux SCO claims it owns. SCO has made an assertion, but it has said that because the code in question wasn't put in Linux by IBM, they don't need to answer. IBM says here, Sorry. We get to ask, because it has to do with our counterclaims, not just your theory of the case.]

We asked them to identify that, Your Honor, and what we have gotten is an answer that says, with respect to 17 files we own those and we may own some other ones, but there might be all kinds of other code in Linux to which we claim we have rights, but they won't tell us what that code is. We don't have a definitive statement as to this open operating system, Your Honor, which they have complete access to. We don't have a statement that says those are the lines of code that we own, and those are the only lines of code that we own.

Instead what we have is a statement that says we own these and we think we might own some other ones, and then we get a list of a score of companies which they say might have contributed code and, therefore, they may have additional rights in Linux, but they won't tell us what those rights are.

We asked, Your Honor, that they categorically tell us with respect to what they claim they have rights in in Linux. Did we or did we not infringe that? We have been told that we infringed some, but they will not and have not told us but you don't infringe the rest, and we think we are entitled to a statement as to an open operating system that either we infringed the code in Linux or we don't, and if we do exactly what code is it.

Furthermore, we asked that they tell us with respect to all of the code in Linux to which they contend they have rights, exactly whether they distributed the code or made it available over the internet or gave it to somebody else, and I think we get about two sentences which purport to describe the extent to which they have disclosed it, and we don't think that description, even with its reference to some invoices, is enough.

Finally, Your Honor, what I would say is that what is particularly troubling to us is that we are being told that there are 17 files from AIX or Dynix that we improperly contributed. And yet as Your Honor I believe is aware and as we lay out in our submission, the company CEO is publicly making statements to the effect that there are roughly a million lines of code to which IBM is tied, whatever exactly that means. We want to know, Your Honor, if there is anything other than those 17 files, which we're supposed to have done something with, what exactly is it.

That, Your Honor, is not an exhaustive recitation of the shortcomings in the response. Those are the most important ones. The other ones can be found in the correspondence with counsel.

I think what Your Honor should do with respect to the interrogatories is to order the SCO Group to again, within some, I hope, short-term time frame, provide the additional information which we have requested. Certainly with respect to the question of whether these lines of code tie to Unix System V, and if they contend that they do tell us in unequivocal terms that the files that we're said to have contributed do not derive from and are not derivative works of Unix System V.

Thank you, Your Honor.

THE COURT: Mr. Marriott, I am wondering if during the remainder of the hearing if you could perhaps ask someone with you to make a handwritten summary list of those things, specifically.

[This is a hint, to my way of thinking, that the judge likely intends to ask SCO to produce whatever is on the IBM list, in harmony with IBM's suggested resolution.]

MR. MARRIOTT: I can do that, Your Honor. Thank you.

THE COURT: Thank you.

MR. HEISE: Good morning, Your Honor.

THE COURT: Good Morning.

MR. HEISE: Mark Heise, Boies, Schiller & Flexner on behalf of the SCO Group.

With respect to this first issue of compliance with this Court's order requiring the Supplemental Interrogatories and Requests for Production, at the last hearing virtually the entire time was spent on the interrogatories so I am going to focus my attention on the interrogatories.

We filed our interrogatory answers that supplemented and they exhaustively detailed the improper contributions that IBM has made to Linux. On Monday IBM sent to me a letter detailing what they thought were deficiencies in it.

[Groklaw has posted that letter.]

And on Wednesday I responded to that, both of which are in the package that IBM provided to you I believe it was yesterday. In there we have detailed why it is what they are asking for in this next round of supplemental answers is, A, not what was asked for in the questions and, B, not at all appropriate in light of what this case is about.

[That letter is here. ]

When they filed their responses or their report on the compliance yesterday, it appeared to me that they were abandoning their nitpicking points that they raised in their letter, which I will be glad to address in detail because we have in fact answered those questions. I did detail that in our response dated February 4th.

THE COURT: You can choose to say whatever you wish within your time constraints.

[This appears to be the court gently telling him, If you wish to waste the time allotted to you this way, you are free to do so, but you may wish to think that play through, because if you run out of time before you address the matters we just agreed in chambers we'd cover here today, you won't get any more time.]

MR. HEISE: I understand, Judge. Thank you.

With respect to the overriding issue that IBM has presented to the Court, it is that SCO has somehow failed to identify line-for-line codes of System V code that was licensed to them that IBM has put into Linux. That is not and has not and will not be this case at this point.

As I started to allude to in chambers, Your Honor, the fundamental reason why that information is not relevant and is not provided is because of section 2.01 of the license agreement. In 1985 IBM made a commitment that they would get this operating system called Unix System V from AT&T and they would agree to those terms. One of the most significant terms of that is found in 2.01. It says that they have the right to use Unix System V and, in fact, they have more than that. They have the right to modify it and they have the right to create derivative works. I am reading from the bottom part of 2.01 that is in bold. The important limitation is that on that Unix System Five Code, on the modifications to it and the derivative works to it, they must treat it as part of the original software product.

[However, note the Novell letter of February 6 to SCO, which answers this point directly, saying this clause does not mean what SCO thinks it does.]

And then the license agreement is very detailed as to what they can or cannot do with the original System V code or their modifications or derivatives. Their modifications and derivatives are called AIX and Dynix. They are required to keep them for their own internal business purposes and keep them confidential and not give them away.

That is in fact what they have done as we have set forth in the next page of the exhibit. They have taken their modification or derivative known as AIX or Dynix, and they have contributed it to Linux allowing Linux to now become an enterprise corporate use of this operating system. In the absence of that it wouldn't have gotten there, but there can be no question, and you have not heard IBM come up here and say, Judge, we have not contributed AIX and we have not contributed Dynix. They have in fact, and they have publicly said they have done that, and we have provided line-for-line copying of exact AIX and exact Dynix code. They are prohibited under this contract from doing so.

If Your Honor thinks of it as a ladder with the first ten steps being Unix System V, because let there be no doubt, there are over 1,000 files in AIX that are attributable to AT&T. So in that AIX core there is that platform, those first ten rungs of the ladder. What they have done is, they have created their flavor of their version of that operating system called AIX or Dynix, and that is now rungs 11 through 20. They are saying in rung 16 you're not showing me the Unix System V code. That is not what this case is about. This case is exactly about what is set forth in 2.01. You can't take the System V code and you can't take your derivatives or your modifications.

If they want to come in here and say, but those derivatives or modifications came from somewhere else and then were wholly created by us, then you know what? They have to prove it. It is not good enough for Big Blue to come in and say that.

THE COURT: Mr. Heise, I think you're arguing the merits more than the scope of this hearing.

[Another hint from the judge, which again is ignored by SCO.]

MR. HEISE: The reason I am maybe going more into the merits than I probably should in front of Your Honor is it directly ties into the adequacy of these interrogatory answers. The interrogatory answers detail exhaustively the contributions of AIX and Dynix that were made in there. There is no dispute about that.

They then in this letter that they wrote earlier this week said, Well, you didn't identify the line-for-line matching in every single place. There are two times when we did not do that in our answers to interrogatories. One is in table A of our interrogatories which we identified eight different files and we said the copying is complete throughout. We are not matching up the lines and I gave an example of that in the demonstrative aids when it says copying of Dynix slash into Linux, and you can see the red on the right is exactly the same as the red on the left, and that is line-for-line copying. So that is the one instance in our interrogatory answers where we admittedly said in there it is throughout. We are not identifying lines here.

The other place where we did not identify the line-for-line copying are for certain technologies known as Asychronous Input/Output and for Scatter Gather Input and Output. There is a very fundamental reason. Because to be able to do the line-for-line matching we need to have their source code. They have given us zero AIX and two CD's of Dynix.

THE COURT: But the requirement of the Court is that you provide those source codes.

MR. HEISE: I think there is a fundamental misunderstanding and let me explain why.

[SCO persists in trying to reargue the point the judge has already ruled on, namely that SCO must produce first and only after that can they demand that IBM produce discovery.]

With respect to these other technologies that they have publicly acknowledged that they have contributed, they have laid out how it is that they have contributed it, and it was a part of AIX or Dynix, and what they are saying is, Show us the lines. That is the equivalent of saying I am not
going to show you the book that contains all of these lines of code, therefore, all we can do is say it is from AIX or Dynix and you have said it is and we have identified how it is and why we believe it is in fact from AIX or Dynix. But to sit here and say to us when they have not given us their source code, and their source code is what is matched up --

THE COURT: This is about your response and compliance with the Court order.

MR. HEISE: I understand that.

We have given the technology based upon the information we have. The answers to interrogatories that they are complaining say, yes, but for those given technologies you have not identified the specific lines. What we have said in our answers to interrogatories is we can't identify those specific lines because it comes from your confidential code which we don't have access to yet.

THE COURT: Mr. Heise, this is the problem. The problem is that unless you identify those codes, which was required by the Court order --

MR. HEISE: Which we did.

THE COURT: -- then I.B.M. is not in a position necessarily to respond, the way I see it. So we are at an impasse and we can't be at an impasse and have the case remain at a standstill. That is why there is an order in place that SCO has been required to comply with, so that I might then address what IBM has to comply with.


MR. HEISE: But I'm trying to stay focussed on our compliance.

[He persists in trying to argue the same point, that her order was wrong and IBM should have to go first.]

I guess maybe a way to explain it, is in the technologies that they have contributed, let's say in rungs 15 and 16, that is not from us. That is not our Unix System V code. That is AIX or Dynix. We don't have that source code to be able to identify the lines, because they are quibbling about the fact that we have not identified the lines of a couple of technologies. We don't have the source code for 15 and 16. They do.

If they give it to us we'll supplement if further, but in the absence of that it is literally impossible to identify the lines. We have identified the technology, we just cannot identify the lines because we don't have their derivative modification source code. That is why and that is what I am trying to get across.

THE COURT: Well, you have made your point, I am just not certain I agree with it.
MR. HEISE: Fair enough.

As I detailed in the February 4th letter that Your Honor has, we have addressed everything. All we are talking about is whether it is a derivative or whether it is a modification. As you pointed out when I kept going down that path, that is the merits of the case. That is not appropriate on a discovery motion.

With respect to the production of documents, we have in this case gone to every office, gone into peoples' individual offices, gone into peoples' home offices, and we have gathered and collected more than a couple million pages of documents. We have produced over a million pages of documents. We have produced 400 million lines of Unix code, most of which I fail to see how it has any relevance. We have produced 300 million lines of Linux code, and we have gone through exhaustively to provide them with documents in the order they wanted it, and they wanted it from the top executives down. As we indicated earlier there were technical difficulties when going through it. Some of the third party vendors didn't process materials because they were so focussed on the other. We have made every effort to correct that.

[This is him saying we didn't produce everything. We did produce a lot, though. Meaningless, because the hearing is about whether they have produced everything.]

I understand from our discussions before that we should have filed a motion for enlargement rather than explain it by affidavit. I take full responsibility for that. That was error on our part.

[Another SCO legal goof.]

But we have literally undertaken these Herculean efforts to provide them with every document that we can get our hands on.

And throughout the course of this case, Your Honor, there will be more documents. There will be more documents by them and there will be more documents by us. That is just the nature of discovery.

THE COURT: How much time do you need to provide these additional things that have yet to be supplied? And if I order an absolute strict compliance to the previous order, and/or some of the items that IBM is indicating, I want you to state for me a reasonable and rapid date on which those could be provided.

[Here is a strong hint what she plans to do: give them an Do It By This Date Or Else order. She has a number of Or Else options to choose from.]

MR. HEISE: With respect to the supplemental documents that have been collected and that we are trying to gather and provide to them, I would anticipate it being done in two weeks. But to give myself, so I don't have to come back before you and file a motion for enlargement, I would rather say four weeks and go with that.

THE COURT: All right. Do you have anything else?

MR. HEISE: With respect to our compliance, no, Your Honor.

As I said, you know, I am sure we'll be here talking about this document is missing and that document is missing. That is just the nature of the beast.

Thank you very much, Your Honor.

THE COURT: Thank you.

Mr. Marriott, do you have any response to this? And I have a question for you as well.

MR. MARRIOTT: I do, Your Honor.

I believe what Mr. Heise said, Your Honor, was that the reason that we had not been given all of the line-for-line match-ups that we had asked for is because the only way that they can do that is for us to give them discovery. When I stood, Your Honor, ten minutes ago and described to you the principal failing, it is not that they have not identified all of the lines of code in AIX and Dynix, which they say we dumped into Linux, it is the lines of code in Unix System V. That is the product they purport to have acquired from AT&T and it is in their possession, and there is no reason that they can't do that, or state categorically that it is not the case and that they are derivatives of System V. You didn't hear Mr. Heise say that.

That is my only response, Your Honor.

THE COURT: Mr. Marriott, my question for you is, do you acknowledge or not acknowledge that SCO is in substantial compliance with the previous order?

MR. MARRIOTT: Well, that is a very hard question, Your Honor. We were provided with a lot of documents and we were given certainly a lot more specificity than we had been provided previously.

The difficulty is that since in our judgment without getting to the merits, but in our judgment the question here is whether the code they say we have dumped into Linux can be linked to Unix System V. They have a different view. We won't argue the merits of that. Certainly we are entitled to discovery as to whether that is the case. I would refer Your Honor to our interrogatory numbers one, two, four, six, nine and 13.

In one we ask for confidential information misused. In two we ask for the nature and the source of the rights. In four we ask for the manner of misuse. In six the origin of the code and the products upon which it is based. I mean, the list goes on, Your Honor. One of which, in fact, 12 asks specifically whether the code was derived from Unix System V. So whether or not we have the same view on the merits as SCO as to the contracts, which clearly we do not, certainly we are entitled to discovery as to our understanding of the way the contract works.

[I am guessing that he here is referring to the list that the judge earlier asked them to write up for her.]

We have clearly asked for that. This is a case that to my mind is about whether Unix System V in one fashion or another, either directly or because some derivative of it has been dumped into Linux, has been adequately provided and we don't have that.

To be asked when they have given us a lot, Your Honor, it is --

THE COURT: Maybe that is a determination for me and not for you.

Do you have anything else on this?

MR. MARRIOTT: I do not, Your Honor.

THE COURT: Thank you.

I will take that under advisement, but let's go forward now on the issue of SCO's motion for discovery from IBM.

MR. HEISE: Thank you, Your Honor.

With respect to SCO's Motion to Compel, in this case IBM prior to the Court entering the stay on December 5th had produced approximately 150,000 pages. They have produced two CD's of Dynix source code and zero CD's of AIX source code.

First and foremost, they have repeatedly stated throughout this case that they would provide the AIX. and Dynix source code and we just have not gotten it.

THE COURT: Well, that may be the result of this order which said hold on, we are stopping this until those source codes were revealed.

[Again, SCO is back arguing that it should get AIX and Dynix code from IBM, and the court is again reminding them that they are not going to get it, until her order is fully complied with. This isn't saying that she has decided that point, though there have been some hints, but it is saying that IBM has a reason for not providing anything yet, since they were likely obeying the court's order, and they also are of the view that SCO has not yet provided all that was required under the order.]

MR. HEISE:. Your Honor, there had been numerous, repeated promises of delivery of that source code prior to December 5. It had nothing to do with the stay that this Court entered. Numerous times we were told we would get it. What we then were told is we can't provide it to you because we have not gotten these third-party notifications done. What that means is that within the source code, some third party also has their source code and they need to make sure that they are okay on that.

That is a process that has literally dragged out for months, and I am still getting contacted by third-party vendors of theirs that are saying, How can we work this out? I have immediately responded and worked it out and it is still not happening.

The other critical deficiency in the production of documents and interrogatory answers is that there is nothing from any of the highest levels of the company.

[This is a big hint, to me, that they are looking for something specific from "the highest levels of" IBM, something they didn't yet get.]

As you saw when IBM was filing their Motion to Compel, they kept asking for Darl McBride, the CEO, Chris Sontag, senior vice president, all of the top key people and kind of working their way down the ladder.

What we have gotten from IBM is working its way up the ladder, despite the fact that on October 28th and other occasions I have spoken with representatives of IBM and said we want the documents and materials from Sam Palmisano, from Irving Wladawsky-Berger, the key executives that are intimately involved in the Linux project.

[This hints to me that there is something they are looking for that they think they should find said or done by one of these two, conceivably by both. The second one is very possibly thrown in there as camouflage, so IBM will not figure out what it is SCO is looking for.]

In our reply memo in support of this Motion to Compel, we in fact provided an article from the New York Times where Mr. Palmisano is identified as the leader of moving IBM into the Linux movement. Mr. Wladawsky-Berger is a core, critical person and they are not mentioned in any of their interrogatory answers and we have gotten no documents from them.

But in terms of going to the specifics of the request for production, we have asked for in items two and three of our requests for production, all AIX and Dynix versions and iterations. As I said, we have gotten zero from AIX and we have gotten two CD's of Dynix. What was laid out in IBM's response to this Motion to Compel, in part, was that would be unduly burdensome. At the last hearing they told you that that could be up to 40 million pages of code and how could we possible undertake that extravagant exercise to get that?

In the limited discovery that we have gotten from them it is clear why no affidavit or no supporting proof was given as to this and why it is allegedly burdensome.

If I may hand this to Your Honor?

THE COURT: Okay.

MR. HEISE: What I am handing you is a document from IBM that has been marked as confidential. It is regarding an item called the C.M.V.C. which stands for Configuration Management Version Control. As you can see, Your Honor, it says in the beginning it is used by the AIX development organization, and through the highlighted portions of the document it identifies that configuration management is a process of identifying, managing and controlling software modules as they change over time.

In other words, so that we would be able to get every version, every iteration, and that version control is the storage of multiple versions in a single file along with information about each version. Then it gives a simplified description at the bottom saying what it basically does is it boils down to that all levels of all files are stored on a central server and are available for viewing and/or updating by those with proper authority.

They can get us the AIX. It is clear as a bell we are entitled to it and they said they would give it to us and we just have not gotten it.

With respect to request or production number 11 and interrogatory number five, they are directed towards all of IBM's contributions to Linux. From AIX to Dynix, anything that you have done, any work that you have done for Linux, provide it to us. With respect to the request for production the response IBM has made is, quote, IBM has made a lot of contributions so it is going to be a daunting task. IBM has made a lot of contributions. That is not a reason why they are not required to produce them.

That is a core issue to this case, as I kind of went off track before under 2.01. What did you do with this material that we said that you were not allowed to make public? They are required to identify that. And what is a critical followup to the production of all of what they have produced is Interrogatory 11, which specifically requires that they identify who worked on it and what they did. They say there are hundreds of people and that is an onerous task. Well, it is a critical task. That is exactly what this interrogatory is designed to do, is for us to know who at IBM worked on it and what they did. Because at the end of the day if we get a list of their 300 people that they have identified already or approximately in that range, and a person has made one contribution over here and this other person has made 50 contributions, the deposition is more likely to be taken of the person who has made 50.

If I just get a random list of names I have no idea of how to weigh who it is I should be focusing my attention on. That is why it is critical that the interrogatory be answered fully and completely.

With respect to Interrogatory number two, we asked for all persons with knowledge. They limited it in their answers to just IBM people. They voluntarily have agreed that they will in fact provide the identity of all persons with knowledge and with information in this case. The only thing I would reiterate here is it has to be inclusive. They can't exclude top management because they are very important executives. Sam Palmisano is a critical witness in this case. The fact that he is the CEO of IBM does not make him somebody who is not to be put on this list.

[ I'd say this is an indication of who it is they specifically think they have something on.]

There is that New York Times article that was attached to our reply memo, it identifies and there was a ten-page report that he and Mr. Wladawsky-Berger and a couple of others put together in deciding whether IBM should shift gears and go to Linux. We don't have that ten-page report and it is a critical document. Those are the things that we have asked for. We have had specific conversations with Christine Arena at Cravath, asking specifically for Mr. Palmisano stuff, for Mr. Wladawsky-Berger, Paul Horn, Nick Bowen, those peoples' information. We have not gotten it.

Throughout these they have not provided the contact information so that we would not be able to locate these people, and that is just clearly information that needs to be put in there.

The final point is more of a housekeeping matter, and that is in the production that we have received to date, we will get a CD and it will say there are two documents on it. The two documents will be 4,000 pages long. Clearly that is not the case. When SCO has been producing CD's it has identified where each document begins and ends. We have asked them, you have to identify where the documents begin and end. Put a source log with the CD. Otherwise it is impossible to know how these documents were kept in the ordinary course of business as is required under Rule 34(b).

Certainly on some documents you can figure it out and match it up and see where it begins and ends, but we can't be left to the guessing game. It is a technical issue but it is something that can presumably be corrected, and it certainly needs to be done on a going-forward basis.

That is the gist of our Motion to Compel, Your Honor. I appreciate your time this morning.

THE COURT: Thank you.

Mr. Marriott.

MR. MARRIOTT: Thank you, Your Honor.

The SCO Group propounded 57 document requests and/or interrogatories, Your Honor. 52 document requests and there were five interrogatories. SCO's Motion to Compel concerns only six of those requests, three document requests and three interrogatories.

[Here, my feel is that he is indicating that no Motion to Compel seems needed, since IBM has already provided the bulk of what was requested and has agreed to give over most of the rest. So he is narrowing down the scope and also showing no intransigence on IBM's part. Motions to Compel are normally only appropriate if there is some evidence of a lack of cooperation.]

The requests, Your Honor, break down into roughly four categories. There are, I would submit really, only two issues that deserve argument, that is argument as to two categories of the four. That is because if Your Honor looks at our Opposition to their Motion to Compel, I think in part this is a motion that makes much ado about nothing, because we either have indicated that we will provide or have provided much of the information requested.

For example, Mr. Heise makes reference to desiring to know the identity of the people who have contributed in some way to AIX or Dynix. Well, there is provided as an exhibit to our response, Your Honor, a list of about 8,000 people who made contributions. So the notion that somehow we have not done that is absolutely incorrect.

Let me focus, if I may, Your Honor's attention on the two points on which I think we do have a genuine dispute. The SCO Group has asked for the production of all Dynix and AIX code during the relevant period, every iteration, every version known to man or woman. They have also, Your Honor, and this is the other category, asked for every contribution that IBM has ever made of any kind, however irrelevant to this case, to Linux or to the open source community. Let me take each of those in turn.

With respect, Your Honor, to the request that we produce every conceivable version or iteration of AIX, the only theory, Your Honor, disclosed by the SCO Group as to how it is that IBM breached its contracts with AT&T, is that somehow IBM has disclosed code from AIX and Dynix into Linux. Having production of every iteration and version of AIX and Dynix is entirely irrelevant, Your Honor, to the determination as to whether or not those products are improperly contributed. The theory is they are somehow derived from Unix System V.

[Here he is using logic, which is always refreshing, pointing out that SCO says they need every version of IBM's code since the founding of the world, but to prove what? As he points out, their theory is that any contribution from AIX or Dynix is improper, so what does it matter which line of code is involved? IBM isn't saying they never made such contributions, so what does SCO need the code for?]

If I may, Your Honor, referring to the SCO Group's exhibits in connection with this hearing, if you look at page 2, which they call defendant's improper contributions to Linux, and they are not numbered, Your Honor, but I believe it is page 2, substantive page two.

Their theory, Your Honor, is that we have taken some code from here and we have dumped it into Linux. One does not need to know and does not need to have production of every version and iteration of AIX and Dynix in order to figure out whether the contribution of these 17 files is somehow improper.

One determines, Your Honor, whether a contribution is a derivative work of Unix System V, and therefore -- under their theory -- improper, simply by comparing the 17 files that were disclosed that they have identified to Unix System V, to determine whether they are a derivative of Unix System V. If they are, then under their theory there might be a problem. Under our theory, and we have a different theory from them, but under their theory there might be a problem. But one does not need the code at this level to figure that out. The case law is absolutely that you figure out whether a work is a derivative work by comparing level C here to level A, not by looking at the millions of lines of source code that they want at this level.

THE COURT: What case are you relying on for that proposition?

MR. MARRIOTT: I would refer the Court, for example, to the Computer Associates decision out of the Second Circuit, which is one of the leading cases on copyright infringement, wherein the nature in which a derivative work is determined is laid out. If you will permit me --

THE COURT: That is fine. You can provide it at a later time.

MR. MARRIOTT: Put aside the case law, Your Honor, and just look at the next page in the SCO Group's book.

[Note that he is here using SCO's own graphic against them.]

This is the page in which they say others have complied with the requirements of licensing agreements. What you see is the SCO Group reflecting itself at the top and representing that they have relationships with HP and IBM and Sequent and Sun, indicating, according to this chart, that somehow Sequent and IBM have improperly made contributions, the 17 files we referred to.

Then referring to HP and Sun and saying HP and Sun have not made any contributions to be concerned about; they have complied with the licensing agreement. How do they figure that out, Your Honor, that HP and Sun complied? I would submit to you that HP and Sun have not produced millions of lines of source code to them so that they can do this comparison that they represent is so critical to the Court. That is absolutely not the case.

They have figured it out and they have reached the conclusion that they are willing to announce publicly, that these other companies don't somehow infringe their rights without reference, I would submit, to a single line of the code from HPUX or Solaris. If they have used that code, then they should have produced it in discovery to us because our request would have called for it and we don't have it.

[This is a slam dunk argument: why do they need us to provide every version of our code to see if we complied, when they didn't require that from HP and Sun? If they need our code to determine that point, they should need it from HP and Sun as well, because they are also under the same kind of license and they have "derivative" versions of Unix System V, if you follow SCO's logic.

If that is not enough, Your Honor, take a look if you would, please, at a document which I can only describe generally

[A reader points out likely he is talking about the document carefully, because it is marked confidential, and so he is trying to avoid saying out loud what it is.]

because it has been marked by the SCO Group as --

May I approach, Your Honor?

THE COURT: Certainly.

MR. MARRIOTT: This document has been marked as "confidential" so I'm limited in what I can say about the document, Your Honor.

But if you will look at this you'll see that it is a letter from SCO to HP. If you take a look at the last paragraph of the document, Your Honor, you'll see that in order to reach the conclusion they reach here, they didn't rely upon, and I would submit that they won't tell you that they did, the production of millions of lines of code from HP or from Sun or from anybody else. That is because that code is not required for them to reach the conclusions they reach as to why it is IBM has supposedly breached its agreement with them.

Their own documents, Your Honor, damn the notion that they somehow require the production of millions and millions of lines of source code in order to figure out whether IBM has breached its agreements with AT&T.

Your Honor, we are nevertheless, however irrelevant I believe that the production of this code is, we are nevertheless prepared to produce a substantial amount of code. We have produced already significant lines of code from Dynix, and we are prepared to produce, and the reason we have not produced it, by the way, Your Honor, is because you ordered us not to. You put in place a stay and the production of the code that Mr. Heise complains about would have put us in violation of the order of the Court. We thought it prudent not to do that.

[Here, he reinforces her earlier speculation that they didn't produce more discovery because of the order, not because of intransigence.]

If you look, Your Honor, at what we are willing to produce, it is a substantial amount of code. We either have produced or will produce three million pages of paper of source code. That isn't every conceivable iteration of these products. It is, however, about 232 products.

If I may approach?

[Note how respectful he is at all times, showing her the respect her position calls for.]

THE COURT: Certainly.

MR. MARRIOTT: Now, again, I think the production of this material is entirely uncalled for, Judge, but we are prepared to do it to put to rest this notion that somehow IBM is somehow hiding the ball with respect to the production of source code. This amounts to well over 100 million lines of source code and we are prepared to produce that. We said we were prepared to produce that in our opposition papers. This is the releases of AIX and Dynix and the released products during the relevant time periods that they are concerned about.

What we are not willing to do, Your Honor, is to produce every conceivable draft and iteration and version of this stuff that might exist in the files of the company that has more than 100,000 employees, with respect to products that were developed over decades, and as to which 8,000 different individuals worked on.

To state it, Your Honor, is to express its absurdity. We are willing to produce far more than they ever had. I would submit again that they had no lines of code from HP and Sun and they were able to reach the conclusion that they are perfectly compliant. We are willing to give them more than 100 million lines of code but that is not good enough. What they say they have to have is every single conceivable version of a product worked on by thousands of people, and if there is a draft of this line or that line, if it exists in this database to which Mr. Heise refers, he wants us to dump on him a database that would be, I would submit among other things, horribly burdensome to do and for which there is simply no cause.

We are prepared to produce these lines of code, Your Honor, and that ought to be enough, I think, for any case, certainly in view of what seems to be sufficient with respect to other persons who were in no different situation for this purpose than is IBM. That is the first category, Your Honor, and there is no reason for an order to compel of any kind. As we said in our opposition papers, we will provide them with the information and we are happy -- we are not happy, Your Honor, we are willing to do that.

With respect to the next category that I think merits mention, they have requested -- again I think in an overreaching fashion -- for every conceivable contribution that IBM has said to have made or may have made to Linux or to the open source community. We have already produced or agreed to produce approximately three million pages of paper. We have produced documents from approximately 90 separate custodians, Your Honor, located in various parts of the country.

We have not withheld from the production of those materials a contribution that a person may have made to the open source community. We are not running through and pulling out contributions. What we are saying is that it is entirely unrealistic and uncalled for and unduly burdensome to expect that we would produce every conceivable contribution. Why is that the case? That is the case because as you may remember from our last hearing before Your Honor, when we handed Your Honor the Open Source Development Lab chart which shows the way in which Linux was developed, the contributions to Linux, Your Honor, are public. This is a public affair. They know what they are.

Anyone can find out what they are simply by looking in the public record. There is no reason to have us have to run around and interview hundreds of people to figure out whether they may have made a contribution, whether it may still be in their files, when all the SCO Group has to do is get on the internet and find the contributions. How after all did they get the information that they provided in response fo the interrogatories? They got it off the internet.

Your Honor, I would, if I may, again wish to show you two documents which I am constrained from describing in any detail because they are marked as confidential under the protective order.

May I --

THE COURT: Certainly, and you need not ask.

MR. MARRIOTT: Thank you.

These, Your Honor, are e-mails produced in the litigation by the SCO Group. If you look at them what you will see it is and, again, I will not describe them in any great detail, you will see that they fully understand that the documents that they are interested in about IBM's contributions are available on the internet. They can get them and find them for themselves.

I don't have much more to add, Your Honor, than that I think it a silly exercise to require us to produce to them that which is already publicly available. Indeed, that is a proposition without support in the case law. Rule 26 itself expressly provides, and I quote, and this is 26(b)(2), the frequency or extent of use of the discovery methods otherwise permitted under these rules shall be limited by the Court if it determines that the discovery sought is obtainable from some other source that is more convenient, less burdensome and less extensive.

There are two decisions, the Ebers case from the District of North Dakota, which is 2003 WestLaw, 22097788, in which the Court there grants a protective order for discovery that sought information that was available to the public by calling the court, for example. In another case, American Medical Systems versus National Union Fire, which is 1999 WestLaw, 562738, where the court denied a request of a party to compel discovery with respect to documents that were available under F.O.I.A.

These documents are publicly available and we shouldn't have to run around collecting them.
There is ample support for the proposition, Your Honor, that nebulous requests for all kinds of contributions can't be the basis of massive discovery.

THE COURT: Assume, Mr. Marriott, that I am going to require IBM to comply in some fashion. What period of time reasonably after receipt of continued discovery that I may order to be supplied by SCO will it take?

[This is an indication that she likely will ask them to produce something, but since IBM has already offered to provide something, what she will do is detail exactly what.]

MR. MARRIOTT: Are you referring specifically to the request for production of contributions, Your Honor?

THE COURT: Yes. Well, just everything.

MR. MARRIOTT: With respect to the code, we are in a position to produce the code within 14 business days of the lifting of the stay.

THE COURT: All right.

MR. MARRIOTT: By the way, when I say produce the code I am referring to the code on this list of 232 products, not every conceivable iteration known to man or woman. That would take many, many months and I don't even want to think how long it would take to compile that information.

[Here, he is letting the judge know that it would delay the case unduly were she to order them to produce every version of AIX and Dynix and every contribution everyone has ever made to Linux from IBM. He's offering to provide in two weeks what he said they are willing to provide.]

But as to this list, hundreds of millions of lines of code, this can be done within 14 business days, Your Honor, of the lifting of the stay.

With respect to the contributions, all conceivable contributions, it would take months to identify, collect, review for privilege, send to a vendor and get produced onto a CD that information. It would be done I think at extraordinary expense.

THE COURT: Thank you, Mr. Marriott. Mr. Heise?

MR. SHAUGHNESSY: Your Honor, may I just give you the cite to the case you asked for?

[Notice it isn't Mr. Heise here speaking. I don't know what that means.]

THE COURT: Certainly. Why don't you just hand it to --

MR. MARRIOTT: This is probably a better cite than the Computer Systems case, although that is a leading case on copyright infringement.

MR. SHAUGHNESSY: It is a case from the Ninth Circuit, Litchfield versus Spielberg, 736 F2nd, 1352, a 1984 case from the Ninth Circuit.

THE COURT: Thank you.

MR. HEISE: Thank you, Your Honor. Very briefly because I know you have a busy day.

The vast, vast majority of what you heard was argument relating to the merits of this case and not about what is at the core of any inquiry on a motion to compel, which is: Are we entitled to relevant information, information that tends to prove a fact one way or the other? IBM has spent the better part of today trying to say that AIX and Dynix are not derivative works. They say that and then they say we are not going to give you any proof to be able to prove otherwise.

So if they are going to come up here and say AIX and Dynix are derivative works, that may obviate the need for some of this discovery. But in fact we have asked them in a request for admission, which we have provided to you as a part of our notice of filing, admit AIX and Dynix are derivative works of Unix System V. They say we don't know what you mean by AIX, and we don't know what you mean by derivative works, and we don't know what you mean by Unix System V and there are multiple versions so we can't answer this so, therefore, it is denied.

They can't talk out of one side of their mouth and say it is not a derivative work, and then turn around and talk out of the other side of their mouth and say we are not going to give you any of the source code for you, SCO, to be able to disprove our contention that in fact AIX and Dynix are derivatives and modifications of System V.

[Note that the Novell letter of February 6, this same day, addresses this issue in a new and devastating way. Presumably, SCO didn't yet know about the Novell letter. ]

We know from the little bit of discovery that we do have that there is over 1,000 files of AT&T that are within AIX. That is going to make it a modification for a derivative work. They are not entitled to continue to sit here and say, one, it is not a derivative work and, two, we are not going to give you any evidence to be able to disprove that.

With respect to this contention regarding how did they know this regarding Hewlett Packard and that Hewlett Packard complied with the license agreement? Well, there is a fundamental difference between Hewlett Packard and Sun and virtually every other licensee out. They have not all gone around and said, great news, we are taking our derivative work, our modifications, and we are contributing it to Linux. H.P. has specifically not done that.

These other companies are setting up Chinese walls and they are not taking that modification or that derivative work, and in the case of HP, it is called HPUX, and they are not taking bits and pieces of HPUX and dumping it into Linux. That is what IBM is doing and they are not allowed to do that under the terms of their agreement.
It is a very simple proposition as to why that statement can be made comfortably by the company.

With respect to this notion that they don't have to identify their contributions to IBM because it is public, not every contribution that they have made is public. Not everything that they have done to put into Linux is public.

[Actually, even contributions that don't make their way into the kernel are also a matter of public record.]

Unless somebody is going to come up here and say that, and maybe a way to limit it, is show us everything that is not on the web site. But the fact that some of the information is public does not make it a complete disclosure of everything that IBM did. IBM is obligated in this case to answer this very straightforward question that goes to the core of this case: What contributions did you make to Linux? What work did you provide to Linux?
At the end of the day they can say, do you know what? This thing we did here, that is not a violation of the agreement. This thing we did over here, that is not a violation of the agreement. But until we see what it is that they are acknowledging and that they must under the rules of discovery, then we are entitled to that information. But they don't get to just say some of this may be public and, therefore, we don't have an obligation to respond.

They have got all of these versions and iterations on a central server. They make it available to all of their employees. I fail to understand how it can be on a central server at IBM available to all IBM employees to track all versions and all iterations of AIX, but we can't have access to that in their responses to litigation. It is not what the rules provide. They have got easy access. There has been no affidavit or other evidence of the allegedly burdensome nature of this. In fact, this document belies such an argument.

As a result we are clearly entitled to the information that we have asked for, and particularly the contributions and the source code that they have agreed to give us, and they have to have these employees identify which employees made which contributions to this, so that when discovery progresses we don't look at a list of 300 or 8,000 and have to guess which ones we should start with.

Thank you very much for your time, Your Honor.

THE COURT: Mr. Marriott?

MR. MARRIOTT: May I just briefly respond, Your Honor?

THE COURT: Certainly.

MR. MARRIOTT: I don't think, Your Honor, that we have suggested this morning that we are giving them no source code. What we have said is we are going to give them hundreds of millions of line of source code. So I think it is inaccurate to say or suggest that they should somehow figure this out without the production of any source code.

As to the notion that HP is somehow different, Your Honor, it is a matter of public record that HP makes significant contributions to Linux. Under Mr. Heise's theory, Your Honor, there is absolutely no way that he could know whether these contributions were proper or improper or from their Unix product or not, unless under his theory he had all of their source code. So it is impossible to distinguish HP under some notion that somehow they are not making contributions to Linux. It simply is not true, and there would be no way under his theory for him to know whether or not the contribution was a problem unless he had the millions of lines of source code which he has not been provided, which he didn't tell you he has been provided but which we have said we are willing to provide to them.

The C.M.V.C. database, Your Honor, is not a database that can simply be produced, Your Honor, and turned over. It is not a database that concerns solely AIX code. It concerns code well beyond the AIX code base.

Moreover, the notion that somehow we are unallowed to contend that it would be burdensome for us to comply with these requests because we have not submitted an affidavit is entirely inconsistent with the law that governs in this circuit.

I would refer the Court to the Aikens decision at 217 F.R.D. 533, the Bradley decision at 2001 WestLaw, 1249339, and the Pulsecard case at 1996 WestLaw, 397567. Affidavits are not required, Your Honor, to show overbreadth or undue burden where the details are provided in the briefs or that the overbreadth is obvious.


I would submit to Your Honor that asking us to produce what would amount to a billion lines of code, if we were to produce every conceivable iteration, is on its face overly burdensome.

Thank you, Your Honor.

THE COURT: Counsel, while it is somewhat unusual in a discovery matter to take something under advisement, I think that based upon the somewhat complex nature of the requests that I will issue a written order as to both of the issues before the Court. We'll try to do so within the next week.

Mr. Marriott?

MR. MARRIOTT: May I inquire, Your Honor, you had asked whether I could have someone prepare a summary of our --

THE COURT: Yes.

MR. MARRIOTT: It is not very pretty, and if I might, we have -- I just didn't bring it -- a prettier version of this which I would be happy to send to you this afternoon, or I can hand you this.

THE COURT: I am happy to take that, but if you'll give that to Ms. Pehrson she can make a copy of that for Mr. Heise and for me.

MR. HEISE: The only thing I was going to suggest, is their criticisms and our responses are laid out in the letters of January 3rd and February 4.

[This is a reminder to her to please look over and review the matters addressed in their exhibits, when making her decisions.]

THE COURT: I understand that. All right.

With that, we'll be in recess on this matter and we will get that order out as quickly as possible. Thank you.

(Proceedings concluded.)







  


Friday's Hearing - The Transcript as Text | 390 comments | Create New Account
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Friday's Hearing - The Transcript as Text
Authored by: Anonymous on Monday, February 09 2004 @ 11:39 PM EST
Fabulous, expedited work!

[ Reply to This | # ]

OT: Cyberknights to take on SCO AU
Authored by: belzecue on Monday, February 09 2004 @ 11:40 PM EST
Aussie Cyberknights to pursue SCO Australia on fraud charges.

BTW, great work on Friday's transcript, folks. It's a fun read.

[ Reply to This | # ]

(sic)
Authored by: Anonymous on Monday, February 09 2004 @ 11:43 PM EST
There's (presumably) an error in the original. It's ``reciporical'' discovery,
not reciprocal

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: zombie on Monday, February 09 2004 @ 11:54 PM EST
David Marriott is listed under "For Plaintiff" when he should
obviously be "For Defendant" (IBM)

It is correct in the original PDF

[ Reply to This | # ]

I can see why Marriot got applauded...
Authored by: valdis on Monday, February 09 2004 @ 11:58 PM EST
Did Marriot have to look up all those citations, or did he have them nailed down and memorized? I seem to recall that judges like to be persuaded by arguments that "such and such a citation gives this precedent". I saw 5 or 6 citations of cases or rules or similar from Marriot compared to one from the SCO table.

I guess I can't blame Heise too much for appearing flustered on the transcript - I guess I'd be flustered too if I was in court, and intensive digging by my paralegals had failed to find any citations that supported the legal theory we were trying to promulgate. You rarely see a Best Actor Oscar nomination going to somebody trapped in a dog of a movie....

[ Reply to This | # ]

Sentence completion
Authored by: Anonymous on Tuesday, February 10 2004 @ 12:02 AM EST
HE COURT: You can choose to say whatever you wish within your time
constraints ...

I personally think the sentence continued like this in her mind:

..., I am not going to your crap anyway.

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: Anonymous on Tuesday, February 10 2004 @ 12:11 AM EST
Does anyone understand that "ladder" metaphor?

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Friday's Hearing - The Transcript as Text
Authored by: brian on Tuesday, February 10 2004 @ 12:12 AM EST
As we say here in the back woods of WV....


DANG! that sure was quick! Kudos to all and especially to
Frank and PJ! Good stuff this....

Wonder if and how long it will take our so call "free
press" to get this all botched up.

B.

---
#ifndef IANAL
#define IANAL
#endif

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Friday's Hearing - The Transcript as Text
Authored by: Anonymous on Tuesday, February 10 2004 @ 12:14 AM EST
HEISE: "I understand from our discussions before that we should have filed
a motion for enlargement rather than explain it by affidavit."

What's a motion of enlargement? (Other than going to an
"all-you-can-heat" buffet? :-) )

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Friday's Hearing - The Transcript as Text
Authored by: RSC on Tuesday, February 10 2004 @ 12:15 AM EST
I feel more and more comfortable with whole issue, the more I see IBMs' counsel
in action.

Marriott, comes across, as supremely confident, polite, and intellegent. You can
see IBM slowly but surely building up an incredible defence, with a lot of
forethought and a vision of where they will take the case. They definately give
the appearence that they have a very strong defence.

The one bit I liked the most is the ground work they are laying for the
eventuallity, that they may need to contest the ptrotection order on any
"real" code that SCO may want to keep "secret"..

Very enjoyable read, if that can be said about any legal proceedings transcript.
:)

Thanks PJ and the crew for being so prompt at getting this info to us. It is
much appretiated.

RSC.



---
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An Australian who IS interested.

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How many lines?
Authored by: Anonymous on Tuesday, February 10 2004 @ 12:18 AM EST
Heise says that they have produced over 300 million lines of Linux code? Last
time I checked, thought it only contained around 30 million or so. Is this an
error in the document or did he really just exaggerate the amount of Linux code
by 10x?

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The SCO Group's viral theory
Authored by: fgoldstein on Tuesday, February 10 2004 @ 12:23 AM EST
TSG again makes clear that there is no copying of AT&T-Unix code into Linux.
Their entire case rests on a "viral" reading of the old AT&T
license. That's not the way AT&T enforced it, or the way Novell enforced
it, or the way Tarantella enforced it, but somehow TSG has reinterpreted this
19-year-old contract in a novel way.

Per TSG, once code is inserted into any System V-based Unix system, that code
becomes TSG's property. They say this with a straight face, which has to be
worth something, just in terms of acting ability. (Or maybe just stupidity.)
So when IBM developed code for OS/2 and then ported it to AIX, TSG (or its
predecessor-in-interest) became the owner, even if it took The Darl to figure
this out. I wonder if OS/2 is now a derivative work of System V. Microsoft
claims that the GPL is viral, but this is ridiculous -- it's more like Ebola.

Does anyone have a disclosable copy of a System V Release 2 license, and/ or a
Release 4 license to compare? The SVR2 license, which is what was current in
1985, was viewed as pretty reasonable at the time. It allowed unlimited
sublicensing (for a fee), and allowed proprietary extensions to remain private.
The SVR4 license that replaced it in 1988 was much more onerous. DEC, HP and
IBM refused it, IIRC, and created the Open Software Foundation in order to
guarantee access to the SVR2 terms, which they could sublicense. (I think OSF
got HP's license.) The SVR4 license was said to require additions to the kernel
to be given to AT&T, for them to put into the SVR4 pool as they saw fit.
Sun was the main beneficiary; small computer companies, with little to lose,
also liked it. Sequent might have been an SVR4 licensee.

The hack analyst Rob Enderle claims to have seen the IBM license and thinks it
supports TSG. I can't imagine such a reading of SVR2, and even SVR4's onerous
terms (sort of a one-sided GPL, what's yours is AT&T's and what's AT&T's
is AT&T's) would have to be stretched pretty far to support TSG's theory.

[ Reply to This | # ]

No OCR errors. All spelling errors ...
Authored by: Thomas Frayne on Tuesday, February 10 2004 @ 12:24 AM EST
identified so far are in the original.

Spelling errors include:
"reciporical discovery"
"think he get"
"Don McBride"

I have both the original and the searchable PDFs loaded into Acrobat, so I can
quickly look up any suspect text in the original.

If you have seen any other suspects, please respond, with several words for
context.



[ Reply to This | # ]

Ah, The Hipocracy...
Authored by: odysseus on Tuesday, February 10 2004 @ 12:33 AM EST
Amazing, first Heise gets slapped down by the judge for
arguing the merits of the case while he's supposed to be
defending their lack of compliance, then when it's his
turn to reply to Mariott's defense of IBM's compliance he
says:

"The vast, vast majority of what you heard [Marriotts
defence] was argument relating to the merits of this case
and not about what is at the core of any inquiry on a
motion to compel, which is are we entitled to relevant
information, information that tends to prove a fact one
way or the other?"

How did the judge keep a straight face????

[ Reply to This | # ]

Too much duplicate work
Authored by: Thomas Frayne on Tuesday, February 10 2004 @ 12:35 AM EST
I did not like to see so many names on the list of transcribers. How about
reducing the wasted effort with the following procedure:

Someone, probably PJ, asks for a transcription.

Someone posts in the story mainline, "I'm doing it" with an indication
of scope of work (e.g., OCR, spell check) and output type (e.g., text,
searchable PDF, HTML)

PJ replies in Groklaw "Go ahead"

Someone else volunteers

PJ responds "Go ahead", or "Don't bother".

[ Reply to This | # ]

Code Comparison Missing (repeat post)
Authored by: Anonymous on Tuesday, February 10 2004 @ 12:55 AM EST
see http://sco.tuxrocks.com/Docs/IBM/Doc-103-3.pdf
p. 6, #6

"The code comparisons performed by consultants retained by SCO, the results
of which were publically discused by SCO." These documents were created by
consulting experts who have not been designated to testify in this case. As a
result, such documents are protected from disclosure under Rule 26(b)(4).

If that is the problem, certainly IBM will be able to get them designated to
testify. I myself suspect the code comparisons were never done.

[ Reply to This | # ]

Old SCO-Caldera agreement missing
Authored by: Anonymous on Tuesday, February 10 2004 @ 12:57 AM EST
Check out http://sco.tuxrocks.com/Docs/IBM/Doc-103-3.pdf p. 7 #10.

Seems like they are saying they have not been able to find the 0ld SCO - Caldera
purchase agreement. Can you believe that?

[ Reply to This | # ]

Correction?
Authored by: capn_buzzcut on Tuesday, February 10 2004 @ 01:08 AM EST
"Furthermore, we asked that they tell us with respect to all of the code in Linux to which they contend they have rights, exactly whether they distributed the code or made it available over the internet or gave it to somebody else, and I think he get about two sentences which purport to describe the extent to which they have disclosed it, and we don't think that description even with its reference to some invoices is enough."

Prolly should be "...I think we get about two..."

[ Reply to This | # ]

HP
Authored by: Anonymous on Tuesday, February 10 2004 @ 01:08 AM EST
I thought the HP and Sun move was brilliant. If SCO, without looking at the HP
and Sun source code, can certify they didn't contribute code to Linux that SCO
has rights over, then there is no reason SCO needs to look at IBM's code.

And then Heise like an idiot makes the claim that HP didn't give code to Linux.
I wonder if IBM purposely set this up as a trap. Like they thought Heise would
not know what HP had done, and figured he would make up something wrong off the
top of his head, and then the IBM lawer could show him wrong. Or maybe it was
just a lucky side-benefit.

Oh, and another thing. IBM was using a quote from the SCO executives, and this
shows just one more time how much trouble the things they said in public are
causing them at trial.

[ Reply to This | # ]

  • HP - Authored by: Trepalium on Tuesday, February 10 2004 @ 03:02 AM EST
    • HP - Authored by: Anonymous on Tuesday, February 10 2004 @ 01:16 PM EST
  • HP & Sun - Authored by: Anonymous on Tuesday, February 10 2004 @ 10:37 AM EST
  • Professionalism - Authored by: Anonymous on Tuesday, February 10 2004 @ 11:03 AM EST
My favorite logical leap
Authored by: Anonymous on Tuesday, February 10 2004 @ 01:10 AM EST
In the beginning, Marriot cites a Computer Associates case that says the
plaintiff has to prove derivation by starting with source code A, and source
code C, then arguing how unprovided source code B must be derivative of A, which
is then presumably disproved by the defendant.

Then towards the end, Heise, presumably with the mental image of himself dancing
around in the end zone after spiking the football for a touchdown, tries to
argue that the only way source code B can be withheld from discovery is if it's
derivative, and since IBM says it's not derivative, they have to provide it,
quod erat demostrandum, baby!

bkd

[ Reply to This | # ]

Why SCO Wants the RCS
Authored by: odysseus on Tuesday, February 10 2004 @ 01:11 AM EST
SCO is starting to beat on about wanting the whole
Revision Control System for AIX, and IBM is fighting tooth
and nail the whole way (and being a bit disingenuious
(sp?) about it too...).

For the non-techs out there, an RCS basically does what
Heise described, it tracks and controls every version of a
file created, usually in a central repository. Heise was
obviously put onto this by one of the SCO techs, but
didn't do a very good job of explaining exactly why it
would be good for SCO to have.

What SCO wants is to be able to show that a SysV file was
initially imported into the RCS as the start point for
some part of AIX, and then evolved over a series of
internal development releases into a state where it is no
longer obviously SysV, before becoming part of one of the
commercial releases IBM is willing to hand over. They
think that this will prove their AIX "derivative of" SysV
argument (ignoring for now their mis-reading of the
contract).

And that's why IBM is fighting this tooth-and-nail. I'm
certain such check-in's exist. I do it at work all the
time, kick-start my development by copying, gutting and
modifying existing code modules (us mainframe dinosaurs
joke that no-one's written a COBOL or JCL program from
scratch since the very first program was written, it's all
been cut-and-paste since then). After all, that was the
whole point of IBM licensing SysV, to kick-start their AIX
effort by saving time and money.

IBM are also being not entirely truthful by saying it's a
hard thing to supply, it isn't really. The argument about
other code being in the database is a real red herring,
the AIX "tree" should be tagged under it's own "branch"
within the database and thus easily extracted. But maybe
I should shut-up in case SCO does read Groklaw...

Anyway, my point is that SCO wants to be able to show an
initial SysV check-in to "prove" its derivative theory,
and IBM doesn't want to make it that easy for them, as it
will just cloud the issue of derivative as a whole work
but not as parts, which is the core of the case.

Geez, I almost sound like a SCO shill there. Scary.

John
(Who finally got around to registering)

[ Reply to This | # ]

Twisting the blade slowly in the wind
Authored by: webster on Tuesday, February 10 2004 @ 01:13 AM EST
One would think that a litigant with the facts and law going their way, with a
judge focused on thier issue, and with an opposing party who has stonewalled the
judge, that that party would go in and ask the judge for the moon. IBM could
have pounded the table and asked for all manner of relief and sanctions. They
asked the judge to give SCO a short deadline. They asked the judge to give SCO
more time!

What does the judge do? She asks IBM for a list of documents that need to be
disclosed. p. 10, l. 4. She then asks IBM how much time they would need to turn
over AIX Code and other documents once SCO has complied. They are going to
give SCO another chance to make up their homework.

SCO got to speak at this hearing. They filled their minutes. The most
significant comment they produced was the judges reminder: "This is about
your response and compliance with the order." P. 15, l. 11-12.

So why this forbearance by IBM? Why the kid gloves? SCO has made a colossal
error. Their peripheral and new theories are desperate grasps at flimsy straws.

The ERROR = THEY HAVE NO CODE.

Heise said it himself during the hearing, "..lines of System Five in Linux
will not be the case." p. 11, ll. 14-18. Stolen code was their original
complaint. Millions of lines of code is what they have been saying in public.
It is not true. They can't disclose what is not true. They are betrayed by their
own confidentiality because it kept them ignorant of their error. IBM is in a
position to be ruthless.

IBM knows SCO will never overcome this error. It will be part of the case. They
will have to admit their error as they pursue other theories in contract and
dismembering US Copyright law. IBM wants this claim in the case. SCO would like
to bury it. We picture the following evidence (which this case will never
reach):

Mr. SCO did you accuse Big Blue of stealing your System Five Code and putting it
in Linux? YES.

Mr. SCO can you tell us of one line of System Five Code put in Linux? NO.

So. Mr. SCO you were dead wrong about any System Five Code in Linux, weren't
you? YES

Mr. SCO when you accused Big Blue of stealing, you were not aware of this
derivative theory? NO.

Mr. SCO you didn't come up with this derivative theory until you saw that there
was no Code stealing, didn't ya? YES.

Mr. SCO, could you be just as wrong about this derivative theory? OBJECTION.

So SCO remains a company that exists solely on the strength of its public
posturing. The question now is will their collapse cause the end of the suit or
will the end of the suit cause their collapse. IBM is in no hurry. IBM is
terribly deficient at press releases. But with Linux on the Superbowl somehow
their message comes across.



---
webster

[ Reply to This | # ]

Couple of other notable bits
Authored by: Anonymous on Tuesday, February 10 2004 @ 01:20 AM EST
Heise's theory is that IBM have to show everything and prove each one is okay
<BR><BR>
HEISE: If they want to come in here and say, but those derivatives or
modifications came from somewhere else and then were wholly created by us, then
you know what, <B>they have to prove it</B>. It is not good enough
for big blue to come in and say that.
<BR><BR><BR>
Later, different topic, what does Marriott saying about SCO owning System V,
note the word "purported"
<BR><BR>
MARRIOTT: I believe what Mr. Heise said, Your Honor, was that the reason that we
had not been given all of the line for line match-ups that we had asked for is
because the only way that they can do that is for us to give them discovery.
When I stood, Your Honor, ten minutes ago and described to you the principal
failing, it is not that they have not identified all of the lines of code in
A.I.X. and Dynix, which they say we dumped into Linux, it is the lines of code
in <B>Unix System Five. That is the product they purport to have acquired
from AT&T</B> and it is in their possession, and there is no reason
that they can't do that, or state categorically that it is not the case and that
they are derivatives of System Five. You didn't hear Mr. Heise say that.

[ Reply to This | # ]

What Happens Next?
Authored by: OmniGeek on Tuesday, February 10 2004 @ 01:47 AM EST
OK, we can read into the tea leaves that SCO gets some more time to really,
truly provide response to the court before the judge brings out the thumbscrews.


The REALLY interesting question (at least to me) now is this: The further
progress of this case depends on the interpretation of the contract, i.e. does
IBM have to treat AIX as confidential or do they own it free and clear. The
court will eventually have to clarify the proper interpretation of the contract,
at which time SCO goes down the flusher. Now that SCO dropped trade secret
claims, there's not much else left to the case except the loony-tune
derivative-works interpretation.

My question is, can the judge rule on that issue in the near future (allowing
the case to go directly to IBM's counterclaims if SCO does not prevail with its
loony-tune theory), or will discovery have to grind on for a year first?

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: Anonymous on Tuesday, February 10 2004 @ 01:53 AM EST
what is being used now seems two work, I guess in this case the duplicated
effort is not really wasted as a diff could be used to help catch typos

[ Reply to This | # ]

A couple typos
Authored by: hcg50a on Tuesday, February 10 2004 @ 02:11 AM EST
First of all, thanks to the transcribers for their work.

Here are a couple of minor typos I noticed. The quoted text always occurs at the beginning of paragraphs. The typo is highlighted in bold:

  1. "We asked, Your Honor, that they categorically tell us with respect to what they claim they have rights in in Linux"...
    "in" is repeated twice.

  2. "If they give it to us we'll supplement if further"...
    I presume the "if" should be "it".

[ Reply to This | # ]

Truely Masterful
Authored by: Anonymous on Tuesday, February 10 2004 @ 02:16 AM EST
They slice, They dice, They're the IBM attorneys.

Having sat in numerous courtrooms growing up (my dad is an attorney), I can say
that this is almost as good as a series of episodes from Night Court (ABC -
1980's).

It truely amazes me that SCO still thinks they have a case. Having gone through
the 17 files currently in question, I have yet to find EVMS (hint: it's in user
space).

JFS was, however, started on AIX. The implementation we know is JFS2 ,
developed for OS/2 Warp, then ported to AIX 5L & Linux. Whether or not it
is considered "derived" is yet to be seen. Filesystems on closed
source OS's are usualy tied directly to the OS, whereas in linux, all file
systems are modular. There is absolutely no single filesystem that is required
by linux to work. EXT2 is the default, but not exclusive. Some people have JFS
or ReiserFS as their default, then there are the umsdos installs that are
superimposed on top of a Fat file system.

The RCU code "could" have come from Dynix or AIX, but since it is
based on a series of technical specifications derived from database development
& concurrent programming principles dating back as far as 1983 (according to
the original RCU mechanism document), it will be an interesting call.

I just hope they bring more SMP work on to the table (code developed by Alan Cox
with help from Caldera).

And for those curious about the HP contributions, well here's a brief list
(drivers are excluded):

IA64 (Itanium) PLATFORM
P: David Mosberger-Tang
M: davidm@hpl.hp.com
L: linux-ia64@linuxia64.org
W: http://www.linuxia64.org/

UDF FILESYSTEM
P: Ben Fennema
M: bfennema@falcon.csc.calpoly.edu
P: Dave Boynton
M: dave@trylinux.com
L: linux_udf@hpesjro.fc.hp.com
W: http://linux-udf.sourceforge.net
S: Maintained


Right from the 2.6.2 kernel.

On an interesting note, I can't seem to find much of anything worth while from
SCO or Caldera in the kernel trees that I have, except for the BFS (filesystem
used by SCO for Unixware) written and maintained by Tigran A. Aivazian (formerly
of sco.com.

Hmmm.

[ Reply to This | # ]

Did she say what I think she said?
Authored by: Anonymous on Tuesday, February 10 2004 @ 02:23 AM EST
"THE COURT: Assume, Mr. Marriott, that I am going to require I.B.M. to
comply in some fashion. What period of time reasonably after receipt of
continued discovery that I may order to be supplied by S.C.O. will it
take?"

Notice this: "after receipt of continued discovery... supplied by
SCO"

Is she asking specifically how long it will take *after IBM gets all what ask
for from SCO?* I think I read it that way, but I'm not sure. If so, this is a
strong hint, if not outright statement, that she intends to continue the stay on
reciprocal discovery pending full compliance by SCO.

[ Reply to This | # ]

Marriott's statements on the response to the compel order
Authored by: Thomas Frayne on Tuesday, February 10 2004 @ 02:28 AM EST
I wanted to paraphrase Marriott's statements to make them more readable, but
still to capture the complete essence of what he said in his argument about the
response to the compel order. Here is the result.


SCO has produced about half the documents required by the court order. SCO has
not complied with the documents part of the court order.

THE COURT: Assuming that I were to find that it had not, what are you suggesting
should occur?
MR. MARRIOTT: Determine by what date I hope in the reasonable and imminent
future they can comply with the request and order them to do that by that date.

Interrogatories: SCO's case previously seemed to be that I.B.M. had taken code
from Unix System Five and dumped that code into the Linux operating system. We
asked the Court to require them to identify by file and line of code, what it is
they say we took from Unix System Five, and where it is exactly in Linux that
they say that we put that. Your Honor ordered them to do that. In response to
that order, S.C.O. does essentially three things.
..1. Abandoned trade secrets claims
..2. Failed to identify a single line of Unix System Five code which I.B.M. is
alleged to have dumped into Linux.
..3. Clarified their theory of the case: IBM dumped AIX and Dynix code into
Linux.

SCO identified parts of 17 files properly, but in others have not properly
identified the lines of code which they say were misappropriated.

We asked in our interrogatories in at least seven different spots for them to
link up the A.I.X. Dynix code which they say we dumped into Linux with the
System Five code from which they say it is derived. The theory here appears to
be that I.B.M. cannot properly contribute code from A.I.X. or Dynix even if it
is its own home grown code, if it ever at some point in time touched the A.I.X.
or Dynix operating system. The notion is that somehow I.B.M. is prohibited from
disclosing that code because it derives it in someway from Unix System Five.

Does SCO claim that the 17 or so files are derivative works of Unix System Five?
If so, we want to know exactly what line of code these 17 files, or whatever
files in the future they identify, are supposed to have derived from Unix System
Five.

Interrogatories 12 and 13 asked SCO to identify exactly what it is in Linux that
they contend they have rights to whether or not I.B.M. is supposed to have
contributed this code to Linux. What we have gotten is an answer that says,
with respect to 17 files we own those and we may own some other ones, but
there might be all kinds of other code in Linux to which we claim we have
rights. However, they won't tell us what that code is.

We don't have a definitive statement as to this open operating system, which
they have complete access to. We don't have a statement that says those are the
lines of code that we own, and those are the only lines of code that we own.
Instead what we have is a statement that says we own these and we think we might
own some other ones, and then we get a list of a score of companies which they
say might have contributed code and, therefore, they may have additional rights
in Linux, but they won't tell us what those rights are.

We asked them to tell us with respect to what they claim they have rights in
Linux. Did we or did we not infringe that? We have been told that we infringed
some, but they will not and have not told us but you don't infringe the rest.
Furthermore, we asked that they tell us with respect to all of the code in Linux
to which they contend they have rights, exactly whether they distributed the
code or made it available over the internet or gave it to somebody else, and I
think we get about two sentences which purport to describe the extent to which
they have disclosed it, and we don't think that description is enough.

We are being told that there are 17 files from A.I.X. or Dynix that we
improperly contributed. The company C.E.O. is publicly making statements to the
effect that there are roughly a million lines of code to which I.B.M. is tied,
whatever exactly that means. We want to know if there is anything other than
those 17 files, which we're supposed to have done something with, what exactly
is it.

That is not an exhaustive recitation of the shortcomings in the response. Those
are the most important ones. The other ones can be found in the correspondence
with counsel.

I think what you should do with respect to the interrogatories is to order the
S.C.O. Group to again within some I hope short term time frame provide the
additional information which we have requested. Certainly with respect to the
question of whether these lines of code tie to Unix System Five, and if they
contend that they do tell us in unequivocal terms that the files that we're said
to have contributed do not derive from and are not derivative works of Unix
System Five.

THE COURT: Mr. Marriott, I am wondering if during the remainder of the hearing
if you could perhaps ask someone with you to make a handwritten summary list of
those things, specifically.

MR. MARRIOTT: I can do that, Your Honor. Thank you.

[ Reply to This | # ]

Gotta love Marriott
Authored by: Anonymous on Tuesday, February 10 2004 @ 02:53 AM EST
Oh-so-polite Marriott is setting SCO up for embarrassment. In asking SCO to
point out where in SysV the 17 files are derived from, he's pretending that SCO
is using the word "derivative" in its traditional and reasonable
sense. If he continues to do this, which I hope he will, SCO will be forced to
explicitly state their contrived definition of the word.

[ Reply to This | # ]

Legal theory question - Contracts
Authored by: Anonymous on Tuesday, February 10 2004 @ 03:13 AM EST
As far as I know, until now, none of the litigants ever stated SCO's derivative
work intrepretation outright.

Also, as far as I can recall, SCO hasn't yet openly conceded that IBM's code
belongs to IBM, but neither are they pressing claims of outright ownership over
IBM's code.

It seems to me that from a legal theory standpoint, claiming outright ownership
of the code is less egregious than conceding ownership and claiming significant
use rights over IBM's property.

In contract law, is this one of the correct ways to interpret disputed contracts
and claims, and is my above impression right? Or absolutely irrelevant?

bkd

[ Reply to This | # ]

Burden of Proof?
Authored by: mobrien_12 on Tuesday, February 10 2004 @ 03:26 AM EST

HEISE: If they want to come in here and say, but those derivatives or modifications came from somewhere else and then were wholly created by us, then you know what, they have to prove it. It is not good enough for big blue to come in and say that.

OK, IANAL, so I could be wrong on this, but isn't the burden of proof on the plaintiff? Please tell me if I'm wrong.

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: Anonymous on Tuesday, February 10 2004 @ 04:04 AM EST
Hehehe - Don McBride...

I just have this image of an old mafia style shake down in my head now....

Well they are playing the extortion game I guess....

[ Reply to This | # ]

Amy Sorenson ?
Authored by: Anonymous on Tuesday, February 10 2004 @ 04:09 AM EST
<< MR. MARRIOTT: Your Honor, David Marriott for I.B.M. With me are Todd
Schaughnessy, Chris Chow and Amy Sorenson.>>

Isn't Amy Sorenson the wife of Frank Sorenson, the driving force behind
Tuxrocks.com and the main source/provider of this Groklaw-site of which PJ is
the "facade" ( no disrespect intended )?

[ Reply to This | # ]

That moment when...
Authored by: Anonymous on Tuesday, February 10 2004 @ 04:13 AM EST
Marriott pointed out that the links they were after were from System V to AIX
not AIX to Linux. That moment was a thing of beauty.

"When I stood, Your Honor, ten minutes ago and described to you the
principal failing, it is not that they have not identified all of the lines of
code in A.I.X. and Dynix, which they say we dumped into Linux, it is the lines
of code in Unix System Five. That is the product they purport to have acquired
from AT&T and it is in their possession, and there is no reason that they
can't do that, or state categorically that it is not the case and that they are
derivatives of System Five. You didn't hear Mr. Heise say that."

Priceless.
What was everyone else's favourite moment?

[ Reply to This | # ]

... that it is not the case and [sic] that ...
Authored by: Anonymous on Tuesday, February 10 2004 @ 04:21 AM EST
In his response to Heise, Marriott said
... there is no reason that they can't do that, or state categorically that it is not the case and [sic] that they are derivatives of System Five.
It took me a while to figure out that the "and" must be dropped for the sentence to make sense: "that it is not the case that." In a clearer form, I guess the thought is:
There is no reason SCO can't [either give lines of System Five which lead [through unknown lines of AIX or Dynix] to lines of Linux], or state categorically that it is not the case that [[the contributed parts of] AIX and Dynix] are derivatives of System Five.

IIUC, in terms of the texts A, B, and C described in the case law, A is System V, B is AIX or Dynix, and C is Linux. If SCO can't match lines of System V to lines of Linux, then the unknown lines of AIX or Dynix contributed to Linux are not derivatives of System V under the definition in the cited case.

[ Reply to This | # ]

  • Alternate reading - Authored by: Anonymous on Tuesday, February 10 2004 @ 09:15 AM EST
    • Alternate reading - Authored by: Anonymous on Tuesday, February 10 2004 @ 06:46 PM EST
2 weeks (or 4) vs 14 business days - clever!
Authored by: Anonymous on Tuesday, February 10 2004 @ 04:26 AM EST
SCO :
"MR. HEISE: ... I would anticipate it being done in two weeks. But ... I
would rather say four weeks and go with that."

IBM :
"MR. MARRIOTT: ... we are in a position to produce the code within 14
business days of the lifting of the stay."

Note "business days". More cleverness from Marriott. SCO says
"probably 2 weeks but 4 please just in case". IBM makes their response
sound like "2 weeks same as SCO, no quibbles" - but actually it's
nearly 3.

And I bet IBM actually have it essentially ready to ship now and if asked to
will be overcompliant. Whereas Heise sounds like he has no clue how long it will
take, feels he can't ask for more than 2 weeks, but fears SCO can't do it in
that time.

[ Reply to This | # ]

Typo in IBM lawyer's name maybe?
Authored by: korda on Tuesday, February 10 2004 @ 04:39 AM EST
In the original pdf [and therefore in the text on groklaw] there seems to be 2 different names for one of the IBM lawyers, is it Chris Kao or Chris Chow? Does this matter?

At the top, under "A P P E A R A N C E S"

For Defendant:
DAVID R. MARRIOTT
[address]
TODD SCHAUGHNESSY
CHRIS KAO
AMY SORENSON
[address]

and in the 5th line of the "P R O C E E D I N G S"

MR. MARRIOTT: Your Honor, David Marriott for I.B.M. With me are Todd Schaughnessy, Chris Chow and Amy Sorenson.

I'm nitpicky like this, maybe I should be doing english at uni instead of comp.sci/eng.

---
~Duane

[ Reply to This | # ]

A smell a rat.
Authored by: matthewg42 on Tuesday, February 10 2004 @ 05:00 AM EST
I worry that SCO are a sacrificial lamb. If a ruling is made against their
definition of "derivitive works", I fear it could set a precident that
will strengthen attacks on the GPL.

SCO's insistence on rattling on about derivitive works even in a hearing like
this (where the scope is clearly not that broad) smells fishy. Sort-of like the
way politicans "answer" a question by just talking about their latest
greatest policy instead of actually providing a real answer.

Maybe them losing the case is the nafarious intent of some unseen players who
want to kill the GPL...


---
An Empty List is a Sorted List

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Too strange
Authored by: Anonymous on Tuesday, February 10 2004 @ 05:02 AM EST
SCOG is not claiming to own IBM's code in AIX - they (Kevin McBride) has already
conceded that IBM owns their code in the first hearing with judge Wells.

SCOG is claiming that :

a). SCOG licenced SYSV5(Software product) to IBM
b). IBM added (IBM code) to (Software product) to create
-> AIX (Derivative work)

now the strange part is

c). SCOG claims the (Derivative work) is the (Software product)
-> back to a).

Hence - SCOG claims (IBM code) added to (Software product) cannot be added to
Linux

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: Greebo on Tuesday, February 10 2004 @ 05:03 AM EST
This was my favourite part :

MR. MARRIOTT:
Finally, Your Honor, what I would say is that what is particularly troubling to us is that we are being told that there are 17 files from A.I.X. or Dynix that we improperly contributed. And yet as Your Honor I believe is aware and as we lay out in our submission, the company C.E.O. is publicly making statements to the effect that there are roughly a million lines of code to which I.B.M. is tied, whatever exactly that means. We want to know, Your Honor, if there is anything other than those 17 files, which we're supposed to have done something with, what exactly is it.

Translated :
Darl is still shooting his mouth off about millions of lines of code to anyone who will listen, but his own lawyers have just admitted there's only 17 files in dispute, and NONE of that came from system V, so what is Darl going on about?

I'm curious why IBM didn't ask for a gagging order on Darl? Maybe it's the old addage of 'Giving someone enogh rope'?

Anyway, more delay from SCO. The next month can't go fast enough.

Cheers,

Greebo

---
---------------------------------------- -
Recent Linux Convert and Scared Cat Owner

[ Reply to This | # ]

Derivitive Work Theory - in geek speak
Authored by: salimf on Tuesday, February 10 2004 @ 05:37 AM EST
Let A represent an original work, e.g. Sys V.
B is an extention of A to make a new work.
B' is a clean-room reimplementation of B
C is an original replacement for A.

A+B must be a derivitive of A. Therefore AIX is a derivitive work of Sys V.

A+B-A must still be a derivitive of A even though it contains no A at all. B is
some how contaminated by A-ness. Therefore all IBM's AIX code is SCOX
intelectual property.

C+B is still a derivitive of A because it does the same job as A+B and because
it contains B which is SCO's intelectual property. If C+B is SCOX property then
so must be C.

C+B' is just as much a derivitive as A because... because it is, so quit asking
stupid questions and pay me.

---
---
Sal

[ Reply to This | # ]

Productive -> Protective?
Authored by: Anonymous on Tuesday, February 10 2004 @ 05:54 AM EST
The is one mention to "productive order" that I think is a typo.

Julio

[ Reply to This | # ]

OT: So SCO can't find NUMA and RCU from Dynix then?
Authored by: parky on Tuesday, February 10 2004 @ 06:36 AM EST
Way back when the case was getting underway I remember SCO stating that the NUMA
and RCU technologies were directly taken from Dynix. Since IBM have given a copy
of Dynix to SCO, they have only produced 17 files.

Where is all this NUMA and RCU code then that IBM have contributed to Linux?
Just because they haven't got IBM's CMVC database doesn't mean that they can't
produce some interim discovery from what they've got.

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: senectus on Tuesday, February 10 2004 @ 06:42 AM EST
WOW.

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: jmc on Tuesday, February 10 2004 @ 06:53 AM EST
It has to be said this is impressive work - and it also shows how professional
Mr Marriott is likewise. I do hope that all this stuff is put into book form
when it's all over, there can't be many civil cases which will be so
fascinating.

I do find myself wondering about the RH and Novell cases? We've been 4 months
since anything happened in the RH case. Surely even the SCO FUD'n'delay machine
must be suffering a bit there?

Also (sorry if I've missed the answer) but how long do Novell have to produce
their reply and counterclaim? It must be about 3 weeks since SCO produced their
Slander suit.

[ Reply to This | # ]

Slightly OT: Truth Serum fallout hits TechWeb
Authored by: PeteS on Tuesday, February 10 2004 @ 07:02 AM EST
In an amazingly balanced (for the mainstream press) This TechWeb article (carried on Yahoo) contains the following:

While the legal dispute between SCO Group and IBM over Linux isn't scheduled to reach trial for another year, the stakes and issues raised could look very different than they do today. Although SCO Group continues to allege that IBM has illegally contributed code from Unix-derived operating systems AIX and Dynix to enhance Linux, SCO appears to be abandoning its earlier claims that IBM infringed on SCO-owned trademarks.

Emphasis mine.

Amazing.

In other great Linux news, German Finance Ministry Division Chooses Linux, a division of the German Finance Ministry has moved some backend functions to IBM mainframes running Linux.

---
Recursion: n. See Recursion

[ Reply to This | # ]

Recap of previous comments by SCOundrels
Authored by: minkwe on Tuesday, February 10 2004 @ 07:04 AM EST
<blockquote>
<i>
To the extent we were filing copyright claims against IBM, sure, it would have
been useful. In fact, we had some discussions with Novell as early as last year
around cleaning up the language that related to the copyrights. They chose not
to clarify them.

And when we filed against IBM, we chose to not even talk about copyrights.
That's why it's interesting the copyright thing showed up...It was strange
behavior for somebody we've had a partnership with for a long time and for a
company I used to work at for eight years of my life.-- Darl McBride,
2003-06-16
</i>
<p>

</blockquote>

---
SCO's lawsuit is a little like locking the door on Martin Luther King Jr.'s jail
cell and expecting to stop the civil rights movement. [C|net]

[ Reply to This | # ]

chinese walls
Authored by: xtifr on Tuesday, February 10 2004 @ 07:12 AM EST
Boy, I bet that comment Heise made about how HP and Sun use chinese walls, and IBM doesn't probably got some IBMers just steaming mad (assuming they weren't already). IBM basically invented the chinese wall technique, and probably makes more use of it than any other company in existence! Do you suppose he was trying to goad IBM, or is he really that ignorant?

[ Reply to This | # ]

  • chinese walls - Authored by: Anonymous on Tuesday, February 10 2004 @ 12:19 PM EST
  • chinese walls - Authored by: Anonymous on Tuesday, February 10 2004 @ 08:15 PM EST
Possibly a Browser Error?
Authored by: NonComposMentis on Tuesday, February 10 2004 @ 07:56 AM EST
David Marriot shows in the "For Plaintiff" section here as well
(IE6).

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: photocrimes on Tuesday, February 10 2004 @ 08:01 AM EST
Just a question for my own benefit. It seems I recall SCO going on about
"They can't show the code because that would expose their trade
secrets"

In fact, they seem militant about defending the exposure of their code. Keeping
that in mind, why is it IBM is expected to cough up every version of every
product they have ever made?

They are the defendants here. Why don't they just play the "trade
secret" card?

Really, I think that unless SCO can pull out a piece of code that they already
have the source for and match that to something in Linux, they don't have a
copyright case at all.

That starts going into the "Hey, your book has some of the same words my
book has in it. You owe me" claim.

IBM should be defending their code against SCO's claims, not offering it up for
them to comb over.

This just blows my mind.



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

[ Reply to This | # ]

OT: OSDL Releases Position Paper on SCO Lawsuit With Novell
Authored by: Anonymous on Tuesday, February 10 2004 @ 08:48 AM EST
Link

Thanks again,

[ Reply to This | # ]

  • D'oh! - Authored by: Anonymous on Tuesday, February 10 2004 @ 09:12 AM EST
What David Boies is Doing This Week
Authored by: Ruidh on Tuesday, February 10 2004 @ 10:12 AM EST
http://www.nytimes.com/2004/02/09/nyregion/09silverstein.html

He's in court in New York on a high profile insurance case involving the World
Trade Center.

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Side Letter contains both Clarifications and Amendments
Authored by: Anonymous on Tuesday, February 10 2004 @ 10:19 AM EST
Referring to the side letter, some sections are phrased as clarifications of SOFT-00015 ("we agree that..."), while others sections are explicitly phrased as amendments to SOFT-00015 ("...amend section...").

The amendments contained in the side letter would not apply to any other licensee. However, the clarifications, IBM will rightly argue, express the intent of the original license, and thus apply to the other licensees.

Fortunately, the relevant section for this dicsussion is a clarification of the license:

"2.   Regarding Section 2.01, we agree that modifications and derivative works prepared by or for you are owned by you.  However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with us."

As such, Dynix -- or any other licensee -- doesn't need an explicit side letter in order to claim ownership of modifications or derivative works.

[ Reply to This | # ]

TSG, the buck stops here
Authored by: jaynan on Tuesday, February 10 2004 @ 11:25 AM EST
How obvious is it that TSG doesn't want anything to do with IBM's
interrogatories 12 and 13? Identifying EXACTLY what it is in Linux that they
claim to have rights to will sink TSG's ship so fast it isn't funny. I haven't
been a big fan of IBM in the past, but the countersuit will, if it doesn't force
TSG into bankruptcy, prevent this lawsuit from being reproduced in any other
venue. The court is likely quite unhappy with TSG for what may prove out as
wasting the court's time, but is deferring (to the defendant's wishes), giving
more time to the plaintiff not only to provide already promised and ORDERED
compliance in regards to discovery, but at this point to basically prove they
have a valid case. IBM wants full discovery per their interrogatory requests,
wants them bad enough to bend over backwards so that the countersuit can be
argued that they gave abundant opportunity to TSG. In the end, it will provide
a vehicle to cleanse whatever TSG has valid rights to in Linux. Marriott's
(IBM's) patience in the discovery process points to the bigger picture here,
that IBM fully intends to eradicate any further claims TSG may make in regards
to Linux. Go Big Blue! I may even forgive IBM (like they care) for
micro-channel after this. But OS/2 Warp? We'll have to see. :-)

[ Reply to This | # ]

IBM's strategy
Authored by: notbuddha on Tuesday, February 10 2004 @ 11:52 AM EST
The key to IBM's strategy seems to be this:
MR. MARRIOTT: I do, Your Honor. I believe what Mr. Heise said, Your Honor, was that the reason that we had not been given all of the line for line match-ups that we had asked for is because the only way that they can do that is for us to give them discovery. When I stood, Your Honor, ten minutes ago and described to you the principal failing, it is not that they have not identified all of the lines of code in A.I.X. and Dynix, which they say we dumped into Linux, it is the lines of code in Unix System Five. That is the product they purport to have acquired from AT&T and it is in their possession, and there is no reason that they can't do that, or state categorically that it is not the case and that they are derivatives of System Five. You didn't hear Mr. Heise say that. That is my only response, Your Honor.
Given that the judge has ruled that SCO must produce discovery first, IBM is saying that the case will not move forward until SCO does one of two things.
  1. Provide a list of every line of every file copied from System V to Linux, and stipulate for the record that these are the only such lines. This has three possibilities:
    • Files were contributed by IBM and contain non-trivial (no "for (i=0;i<n;i++) {") copying:
      In which case IBM agrees to provide discovery on the provenance of those files, and disputes the need to provide any others.
    • Files were contributed by IBM and contain only trivial similarities:
      In which case IBM points out the triviality of the similarity, but produces the provenance anyway as a show of good faith.
    • Files were not contributed by IBM
      See item 2 below.
  2. Stipulate that there are no such lines.
    In which case IBM stipulates that they did submit files from AIX/Dynix to Linux (while pointing out that they were fully within their rights to do so) and argues that SCO needs no further discovery of code since the contribution is not in question. Agrees to provide the discovery that they have already agreed to as a show of good faith.
There is no satisfactory excuse SCO can give for not doing one or the other of those two things.

Unless we get 1A (which seems unlikely), this drops it all into a contract dispute, which would only go SCO's way if their rather disingenuous reading of the contract is accepted. A result of 2 would pretty much give Red Hat it's case, if they're allowed to use evidence from this trial, and would hand IBM it's Lanham act violation counterclaims on a silver platter.


---
If you see me on the road, don't kill me.

[ Reply to This | # ]

Wonderful drama!
Authored by: tryfan on Tuesday, February 10 2004 @ 12:29 PM EST
It's history in the making - and thanks to PJ and Co. I'm able to
(well, almost) understand it! A sense of wonder, actually :-)

Goran J
Varberg, Sweden

[ Reply to This | # ]

SCOG's SERFDOM theory of contract law.
Authored by: LionKuntz on Tuesday, February 10 2004 @ 12:31 PM EST
SCOG's SERFDOM theory of contract law.

In brief: SCOG argued that IBM once contracted with a predecessor in interest (AT&T) that mods by IBM to the UNIX SYS V are forever after part of the UNIX SYS V, and that nothing from UNIX SYS V can be used, even newly invented technology absent from the version of SYS V contracted for, except under that contract.

IBM replied that IBM internal inventions may be used in SYS V and elsewhere because this is IBM's inventions, not SCOG's, Not AT&T's.

SCOG argued that IBM's internal inventions used in AIX or DYNIX are SCOGs (or at least SCOG's right to suppress for further distribution).

SCOG's argument is that a contract imposes "serfdom" where the fruits of the labors of the serf belong to the master. SCOG puts themselves in the place of the master, demanding to see all the fruits (source code of all version of AIX & DYNIX) because distribution of these fruits to LINUX makes LINUX a serf in turn. This is the justification for demanding licences from LINUX.

SCOG has pretty well admited that it has no code other than 17 header files at issue, unless the serfdom theory is accepted by the court.

All the arguments are a tug of war over the issue of serfdom, where IBM tried to modernize an obsolescent operating system but hedged its bets by jointly scattering the new technologies it invented in the up-and-coming operating system.

SCOG wants to rummage around IBM's files to see how new inventions get made, since they obviously don't know. They want every draft, every version, of AIX, even though they have already every line of SYS V licenced to IBM. The million lines of code in LINUX is SCOG's property invented by their serf IBM.

IBM knows what SCOG is up to and is not giving SCOG help in establishing a new serfdom.

[ Reply to This | # ]

SCO Theory - Uh oh...
Authored by: Anonymous on Tuesday, February 10 2004 @ 02:04 PM EST
Let me see if I have this straight, and please blow holes through anything I
have wrong here.

SCO's original complaint was many faceted, but the bulk of the complaint
centered around misuse of SCO code which IBM was required to keep confidential.
That was referred to as Unix Sys V, and as SCO called them OpenServer and
UnixWare, and the product of project Monterrey.

It is this alleged misues that SCO purports to be the grounds to terminate IBM's
UNIX license.

This is listed in the 1st ammended complaint, detailed as the following:

"misusing UNIX software licensed by SCO to IBM and Sequent"
"incorporating (and inducing, encouraging, and enabling others to
incorporate) SCO's proprietary software into Linux open source software
offerings"

Translation, IBM misappropriated SCO propreitary code by putting it into Linux.

Now, SCO is saying in court, that this is not about misapproriation of UNIX Sys
V code, it's about the misuse of IBM's derivative works called AIX and Dynix.
SCO says they cannot show line by line copying from UNIX Sys V because they
cannot find it in what they have, they need the AIX source. From Ryan Tibbetts
Declaration:

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

That's nice, but that's not what was listed in the original complaint
specifically. Specifically, IBM is not allowed to misuse any of the SOFTWARE
PRODUCT as defined in the AT&T agreements, with the following understanding
of the meaning and intent of the agreements:

AT&T Side letter:
"2. Regarding Section 2.01, we agree that modifications and derivative
works prepared by or for you are owned by you. However, ownership of any
portion or portions of SOFTWARE PRODUCTS included in any such modification or
derivative work remains with us."

This is pretty plain, what IBM creates, IBM owns and has rights to, any of the
original code, even if used in a derivative, remains with AT&T, now The SCO
Group as the successor.

For SCO to be correct in terminating IBM's license and thus suing them for
breach of contract and now copyright violations, all of the specifc technologies
have to contain line for line copying of original System V code for SCO to have
any rights to them. Right so far?

SCO seems to be arguing from the point that this AT&T side letter does not
exist (even though they provided it in as an attached document to their ammended
complaint). SCO is arguing that any technology added to IBM's unix derivative
becomes a part of UNIX itself, and is thus goverened as UNIX is governed. The
AT&T side letter would seem to clearly indicate this is not the case.

So did SCO have the right to terminate IBM's license? Actually, they did under
the proviso that IBM misused something that SCO owned. The language here is VERY
important. The logical conclusion of this, which is now really the sole basis of
their entire case against IBM, is that SCO owns what IBM develops for and adds
to AIX.

AT&T clearly did not see it this way, as IBM does not. I don't think SCO can
inherit the IBM license without inheriting the intent behind it, which the
AT&T side letter states unambiguously.

So, that all being said, does it not now show true that SCO's interpretation is
incorrect as to what the license allows and does not, and therefore has an
incorrect basis to terminate IBM's license to use AIX, and therefore cannot have
a claim against IBM for misappropriating what IBM already owns, and therefore
cannot claim copyright infringement for using something under a license that
should not have been terminated, UNLESS IBM MISAPPROPRIATED SYSTEM V CODE.

So everything hinges on whether IBM misappropriated any UNIX Sys V code, and SCO
has basically said they cannot identify any line for line copying with what they
were given so they assume it is in AIX. This is why Mr. Marriot keeps coming
back to UNIX System V and why Heise keeps saying it isn't about UNIX System V.
Both sides have to know this is really the key and SCO has no prayer based on
this alone, so SCO is trying to morph english to say that it's only about AIX
and Dynix although the AT&T license says differently.

Does that about sum it up or am I missing something obvious?

-pooky

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: Anonymous on Tuesday, February 10 2004 @ 02:09 PM EST
In case anyone missed it:

SCO's case, as is now clear, hinges on the weird notion that any code added to a licensed SysV implementation is subject to AT&T/SysV restrictions.

This notion apparently troubled some SysV licensees back in the 1980s, so AT&T clarified the situation and offered to modify the wording of the license. By an odd coincidence, on the very same day as this hearing, Novell sent a note to SCO pointing this out, specifically in the case of Sequent (which, unlike IBM, doesn't have an Amendment 2 letter). See http://www.novell.com/licensing/indemnity/pdf/2_6_04_n-sco.pdf for a good time....

SCO is history.

Craig

[ Reply to This | # ]

I need help!
Authored by: Anonymous on Tuesday, February 10 2004 @ 03:05 PM EST
I need help in order to understand something. IANAL and know little about the
law, but I just can't get past something. If "I" claim that
"you" stole my car, isn't it "my" burden to show the court
proof of my alligations? It seems to me that what SCO is doing, by not
providing proof of the alligations, is little more than picking any Tom Dick or
Harry off the street, dragging them to court, and saying to the court that Tom,
Dick or Harry must prove they *didn't* steal my car. This is absurd if you ask
me!!!

I realize there's a difference here, but it seems logical to me that if they
have complete access to all versions linux (which of course they do), then any
stolen code would be easily cross-referenced by their Sys V code, and voila,
there's your case. So, now that they could only find 17 files they want IBM to
invent their evidence for them? It would seem to me that SCO *should* be able
to say "we don't know where file XYZ was taken from, but they were
obviously copied from Sys V". THEN I could see that IBM would be compelled
to show more code, but until that day, SCO has no cause to ask for AIX code.

Can anyone help clarify this for me?

Last thing....for as much as the SCO lawyers are getting ripped on in this
forum, I think that what they're doing FAMOUSLY well is confusing the court and
dodging bullets that should be aimed their way. COnsider this: The judge never
addressed the fact that MONTHS of courttime was wasted because the heart of the
case was completely changed by SCO. Could it be that the moronic arguments and
rude behaviour of the SCO lawyers successfully deflected this and therefore
protected them from responsibility???? Maybe they're not as dumb as you make
them out to be. If you and I are arguing about the price of bread, and I start
hammering home the idea that the sky is purple, might you be so annoyed and
frustrated that I think the sky is purple that you forget about the original
point of our argument---the price of bread?

[ Reply to This | # ]

  • I need help! - Authored by: Anonymous on Tuesday, February 10 2004 @ 06:11 PM EST
CMVC , IBM employee access to AIX source, Heise misstatement
Authored by: enginepop on Tuesday, February 10 2004 @ 03:44 PM EST

First, Mr Heise states, about the confidential document describing CMVC:

"Then it gives a simplified description at the bottom saying what it basically does is it boils down to that all levels of all files are stored on a central server and are available for viewing and/or updating by those with proper authority." (emphasis mine)

Very shortly after, Mr Heise says:

"They have got all of these versions and iterations on a central server. They make it available to all of their employees. I fail to understand how it can be on a central server at I.B.M. available to all I.B.M. employees to track all versions and all iterations of A.I.X[...]" (emphasis mine)

Mr Heise was right the first time, at least about access, although close to inarticulate. But then he got it very wrong. It's not as if just anyone at IBM can browse AIX source over a sandwich at lunch, as he implies and clearly wants the judge to believe.

SCOX and its attorneys seem unable to get or keep their stories straight, even as individuals, even over a very short time in front of a judge. I hope someone keeps track of even such minor misstatements. Collectively, it's a massive, corrosive-to-the-SCOX-case pile. (I can imagine the SCOX appeal: "OK, so we were wrong about every detail. But the judge wouldn't look at our big picture!")

There's more than just code or even version tracking in CMVC, of course. Perhaps SCOX wants to fish in that information, and that explains Mr Heise's harping. But it sounds like hapless harping.

[ Reply to This | # ]

Every IBM employee ...
Authored by: Anonymous on Wednesday, February 11 2004 @ 02:17 AM EST
They have got all of these versions and iterations on a central server. They make it available to all of their employees. I fail to understand how it can be on a central server at IBM available to all IBM employees to track all versions and all iterations of AIX, but we can't have access to that in their responses to litigation.

Although anonymous here, in my day job I'm an IBM employee. I certainly don't have access to this database and I can't get access to this database without providing a `Need to know' justification that goes up several layers of management.

Sounds like BS to me.

[ Reply to This | # ]

Friday's Hearing - The Transcript as Text
Authored by: mjscud on Wednesday, February 11 2004 @ 01:43 PM EST
Thanks for adding the blue and red markup. You explanations really help.


A question: if judge Wells lets SCO go fishing through the revision control
system's intermediate versions of AIX files, are there any restrictions on what
SCO can do with the results of that fishing expedition?

Would finding one or a few files that were clearly created while looking at some
System V code (in violation of IBM's agreement with AT&T) have much
significance in this case?

Given that SCO probably isn't AT&T's successor of interest, and Novell is,
there wouldn't be any damages due from IBM. Even if SCO is somehow determined to
own the copyright to the original System V files, I suspect that the penalties
upon IBM would be small, and the remedies required of Linux users at most
replacing any such source files.

But would it significantly mitigate TSG's exposure to IBM's counterclaims if IBM
was shown to have violated the contract in dispute?



---
Even a fool, when he keeps silent, is considered wise. Proverbs 17:28

[ Reply to This | # ]

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