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SCO's June 17 Letter to the Judge in Red Hat
Friday, July 09 2004 @ 09:42 PM EDT

We now have from the court in Delaware, at last, the letters each side has sent to Judge Sue Robinson, listed on Pacer. To begin, here is SCO's letter of June 17th as text. These are paper documents, so I'll try to get a PDF done later, but we are swamped with court documents. It appears that SCO is very, very worried that IBM will win their Motion for Partial Summary Judgment and they are sending the courts both in Utah and Delaware a great deal of verbiage to try to forestall that possibility.

Here SCO faces the unhappy task of explaining to this judge why it told her that the IBM case would settle most if not all of the copyright issues in the Red Hat case, and then told other courts it wouldn't. Now they wish her to clarify her thoughts and realize they didn't mean *all* issues. Since she ordered a stay, sua sponte but no doubt based on their representation, which she obviously believed, they are in rather a pickle.

IBM also took them at their word, told the other court what they'd said in Delaware, and put in a counterclaim which referenced their statement, which is obviously terrifying SCO because IBM is threatening to checkmate them by saying, in essence, "Fine. It's *all* being decided here? OK. Then we want a declaration from this court that no one has infringed your stupid code. You haven't shown us any infringement that adds up to a hill of beans in Utah, so since you say this court can settle it all, let's settle it right now."

That would put SCO out of business, the litigation business. So now SCO frantically tells the Red Hat judge something that translates from legalese into plain English in my mind something like this:

"Um...you know how we told you back in September that the IBM case would settle most if not all of the issues of copyright infringement and misappropriation before you in the Red Hat case? Well, that isn't exactly what we meant. It sounded like that is what we said, but we meant to stress the word 'most'. It really won't settle *all* of them.

"And anyway, that was then. This is now. We meant it at the time, sort of, comparatively, but since we said that, we found out somebody other than IBM violated our copyrights with respect to Linux, and if IBM wins this counterclaim, why, we'd be knocked right out of the case, all of them, pretty much, and then that'd be very bad for us.

"And those meanies at IBM used what we said to you and they misconstrued it to mean what we said, and that's so unfair. And now they've brought a counterclaim that could mean curtains for us.

"Oh, and er, the reason we can't find any significant infringing code isn't because we brought a bogus, phoney lawsuit without so much as a shred of evidence. It is because tech stuff is really hard, and it'll take a long time for humans to look at all the code and everything, because computers can't do stuff like that well, especially because we're kind of looking for code that kind of looks the same but isn't actually line-for-line infringement. That's why we are empty-handed, but we're sure, if we get more code, and take up a lot more of everybody's time, we'll find that needle in the haystack somewhere. After all, the world is full of Linux authors. Just think how long this could drag on.

"Oh, and about us going after end users, why, Your Honor, really, we're not litigation addicts. We only sued one itty bitty end user, AutoZone. We're making an example of them, and we think that should do the trick, and for the rest, arm-twisting, er, negotiations should be enough. We're not out to sue the universe, despite what you may have heard, so you don't need to protect anybody. No. Really."

It's quite a performance, and if she buys it, she's either clueless about tech, and never met a liar in her life, or she has been vacationing in the Bermuda Triangle and hasn't been following the other cases at all. It reminds me of a cynical husband explaining to his wife with bluster about lipstick on his collar, and how he didn't get it the way she thinks he did.

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

Morris, Nichols, Arsht & Tunnell
[address, phone, fax]

June 17, 2004

BY HAND DELIVERY

The Honorable Sue L. Robinson
United States District Court
[address]

RE: Red Hat, Inc. v. The SCO Group, Inc.,
C.A. No. 03-772-SLR

Dear Chief Judge Robinson:

As Your Honor may recall, in September of last year, SCO asserted in support of its motion to dismiss Red Hat's complaint that the pending lawsuit between SCO and IBM in the District of Utah addresses "most, if not all, of the issues of copyright infringement and misappropriation" in the Red Hat case. (D.I. 9 at 15.) Given its September 2003 view that "most, if not all" such issues were in the IBM case, SCO expressed its view to the Court at that time that "The infringement and misappropriation issues Red Hat seeks to adjudicate in this case are currently before U.S. District Judge Dale A. Kimball in the SCO v. IBM Case pending in Utah Federal District Court" (Id. at 2.)

Since SCO's latest filing in this Court, SCO's adversaries in related, pending federal actions have misconstrued SCO's September 15, 2003 statements to this Court to argue that SCO is taking inconsistent positions to different courts. In particular, as previously described to this Court, IBM has now sought to add to the District of Utah action a counterclaim that would encompass all copyright issues relating to Linux -- whether arising from IBM's own contributions to Linux or from contributions by others unrelated to IBM.[1] In support of its efforts to add that counterclaim, IBM filed a brief in the District of Utah on May 18 (since SCO's last submission to this Court) that quoted SCO's statements to this Court in an effort to suggest that SCO's complaint against IBM already included all of the issues relating to the propriety of Linux.

Such assertions -- which unrealistically assume that time has simply stood still since September 2003 -- are inaccurate. Accordingly, we feel compelled to expound on our September 15, 2003 statements in light of evidence that has more recently developed and to explain why characterizations like IBM's are unwarranted and inaccurate. SCO has already clarified these issues in summary form for the Nevada District Court in the AutoZone matter and -- given that the parties in each of the related litigations are obviously monitoring all developments -- we believe that Red Hat and IBM are inevitably aware of SCO's previous description of these issues. To ensure that SCO's position is clear to this Court, however, we respectfully submit this letter.

SCO continues to believe that IBM's violations of its license obligations and U.S. copyright law through its improper contributions of SCO's intellectual property to Linux -- the issues that SCO's complaint in Utah presents -- are of paramount importance and will continue to predominate, as a comparative matter, over other issues potentially affecting Linux. That comparative fact was true when SCO cited it in support of its motion to dismiss Red Hat's complaint and -- given the extent and importance of the challenged IBM contributions to Linux -- remains true today.

At the same time, since September 2003, SCO has obviously had the opportunity to conduct further investigation of improper contributions to Linux by parties other than IBM. Through that investigation, SCO has discovered significant instances of line-for-line and "substantially similar" copying of code from Unix System V into Linux. That non-IBM conduct is conduct that SCO's complaint in Utah -- by its express terms -- does not challenge or encompass.

Although SCO has thus made substantive progress on the issues relating to contributions to Linux by parties other than IBM, SCO's ongoing investigation in this regard has proven laborious. Computer programs can help to identify potentially similar lines of code, but because of varying types of cosmetic changes that may be made to code (for example, to punctuation, abbreviations, and spelling), such programs cannot substitute for time-consuming visual review by software engineers. Unix System V contains 17, 741 individual files and approximately 6.5 million lines of code, while Linux contains 11,717 individual files and over 5 million lines of code. Computer programs are even more dependent on human review for purposes of identifying "substantially similar" portions of computer code, which are often functionally similar (but not exact copies) due to shared code structures and/or sequences.

Of course, SCO's statements to this Court many months before much of this investigation could have occurred (and much longer before it could possibly be completed) cannot preclude SCO from protecting its rights, including by engaging in continuing investigation of contributions to Linux by parties other than IBM. Nor can the progress made in such investigations -- relating to contributions to Linux by parties other than IBM -- be a basis for claiming that SCO's statement to this Court last Fall somehow undermines later statements made to another court. This point is further underscored by the fact, as noted above, that the issues relating to IBM's improper contributions to Linux continue to predominate over other potential issues that affect Linux.

Finally, SCO has made clear since at least SCO's counsel's public comments on November 18, 2003 that its litigation plan was to identify (at the time, within ninety days) "a defendant" to "illustrate the nature of the problem" -- i.e., "a significant user that has not paid license fees and is in fact using proprietary and copyrighted material." Since that time, SCO has sued one end-user (AutoZone) -- "a defendant" to "illustrate" the nature of the end-user problem. As SCO's actions have thus made clear, it continues to believe that the most rational route to an overall resolution of this problem is through negotiation, and not broad-based litigation.

Respectfully,

___[signture]_______
Jack B. Blumenfeld

JBB:pab

cc: Peter T. Dalleo, Clerk (By Hand Delivery)
Josy W. Ingersoll, Esquire (By Hand Delivery)
William F. Lee, Esquire (By Facsimile)
Stephen N. Zack, Esquire (By Facsimile)

[1] See SCO's Opposition to Red Hat's Motion for Reconsideration (D.I. 39 at 3-4). As further described in that brief to this Court, SCO is opposing the addition of that IBM counterclaim to the pending case in Utah. Id. at 4 n.2.


  


SCO's June 17 Letter to the Judge in Red Hat | 290 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Spelling and Corrections Thread
Authored by: Yobgod on Friday, July 09 2004 @ 11:11 PM EDT
Put them here...

[ Reply to This | # ]

It's dishonest letter
Authored by: Anonymous on Friday, July 09 2004 @ 11:11 PM EDT
Sure it's a dishonest letter, no surprises there

But doesn't it also totally undermine SCO's theory that Red Hat should be stayed
pending IBM?

[ Reply to This | # ]

How many different things to how many courts?
Authored by: Trithemius on Friday, July 09 2004 @ 11:12 PM EDT
... aren't these the same people that told another court that it is 'literally
impossible' to produce the line-for-line lists of their claimed copied code?
They are now claiming to have found direct copies of System V code in Linux?

Huh?

[ Reply to This | # ]

SCO's June 17 Letter to the Judge in Red Hat
Authored by: Anonymous on Friday, July 09 2004 @ 11:13 PM EDT
I must be first...

either that or there is no reply, which is about all you can say to this
letter.

SCO sure is burning up the rug with this tap dance...

[ Reply to This | # ]

Wait a minute...
Authored by: Yobgod on Friday, July 09 2004 @ 11:15 PM EDT
<p>"SCO continues to believe that <b>IBM's violations
of</b> its license obligations and <b>U.S. copyright law through its
improper contributions of SCO's intellectual property to Linux</b>"

<p>Didn't they just say to IBM that they absolutely are
<b>not</b> claiming that IBM's Linux contributions violate copyright
law and therefore there's no reason for that silly counterclaim 10 thing?

<p>Ah, no... I see. They said that they weren't alleging it in that case.
But they <b>are</b> alleging it in all the other cases...
fascinating.

[ Reply to This | # ]

Needle in a haystack?
Authored by: RealProgrammer on Friday, July 09 2004 @ 11:24 PM EDT
They're not looking for needle in a haystack; they're looking for a unicorn in a
trout pond.

But they don't know what a unicorn looks like, and the trout pond isn't theirs.

---
(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

OT stuff here
Authored by: Anonymous on Friday, July 09 2004 @ 11:31 PM EDT
eom

[ Reply to This | # ]

SCO's Letter omits D/C, NOVL?
Authored by: miss_cleo_psy4u on Friday, July 09 2004 @ 11:52 PM EDT
No mention in SCO's letter to the Delaware Judge of SCO v
Daimler Chrysler or SCO v Novell. Now why don't they merit
a reference?

Ok, so citing SCO v Novell might be embarrassing since SCO's
case was already dismissed, although the judge offered a 30
day window for SCO to refile with specific damages and a
better case.

Has there been any change on the Daimler Chrysler front?
Seems like things have been stagnant there for some time.

Loved your paraphrase concerning the backtracking SCO is
doing.

I have to wonder if the legal secretaries serving SCO's
lawyers can type up that sort of lame lament with a straight
face. As someone who transcribed lawyer dictation in off
hours to put myself through grad school, I can attest to the
passing of many emotions while striving to make legal babble
look good, strike that, presentable, strike that,
professional.

[ Reply to This | # ]

SCO's June 17 Letter to the Judge in Red Hat
Authored by: Anonymous on Friday, July 09 2004 @ 11:56 PM EDT
Isn't D.C. the other "one end user" being sued by ersatz-SCO? I don't
seem to recall any D.C. Linux distro...

[ Reply to This | # ]

Just Call MIT back
Authored by: Anonymous on Friday, July 09 2004 @ 11:56 PM EDT
Didn't Darl say over a year ago the "Rocket Scientists" had ALREADY
done this?


Although SCO has thus made substantive progress on the issues relating to
contributions to Linux by parties other than IBM, SCO's ongoing investigation in
this regard has proven laborious. Computer programs can help to identify
potentially similar lines of code, but because of varying types of cosmetic
changes that may be made to code (for example, to punctuation, abbreviations,
and spelling), such programs cannot substitute for time-consuming visual review
by software engineers. Unix System V contains 17, 741 individual files and
approximately 6.5 million lines of code, while Linux contains 11,717 individual
files and over 5 million lines of code. Computer programs are even more
dependent on human review for purposes of identifying "substantially
similar" portions of computer code, which are often functionally similar
(but not exact copies) due to shared code structures and/or sequences

[ Reply to This | # ]

Why?
Authored by: Anonymous on Saturday, July 10 2004 @ 12:10 AM EDT
Doesn't the 3rd last paragraph of in the letter prove SCO still doesn't have any
evidence against IBM at this point, more than a year since the case started?
SCO is once again admitting that it took IBM to court with nothing other than
pure speculation. Is this allowed in our legal system?

If the police must gather sufficient evidence to prosecute a suspect, then why
is SCO allowed to prosecute IBM with only suspicion?

[ Reply to This | # ]

Last Sentence Translated:
Authored by: Anonymous on Saturday, July 10 2004 @ 01:08 AM EDT
"As SCO's actions have thus made clear, it continues to believe that the
most rational route to an overall resolution of this problem is through
negotiation, and not broad-based litigation."

As TSCOG's actions have thus made clear, they would rather get back to extorting
money by threatening lawsuits than actually pursue such lawsuits.

billwww (formerly addicted to face value)

[ Reply to This | # ]

I bet we see IBM use this statement
Authored by: Anonymous on Saturday, July 10 2004 @ 01:25 AM EDT
Through that investigation, SCO has discovered significant instances of
line-for-line and "substantially similar" copying of code from Unix
System V into Linux.

Ok SCO you claimed in the redhat memo that you have discovered
line for line copying, what are those lines and in what files?

[ Reply to This | # ]

So TSG Has Lied To This Judge On Every Legal Fact So Far...
Authored by: Anonymous on Saturday, July 10 2004 @ 01:26 AM EDT
BUT NOW TSG IS TELLING THE TRUTH. HA HA HA HA My sides are hurting
from laughing so hard!

TSG had said the IBM case in Utah would settle the Red Hat case.

TSG had said that Red Hat had no basis for concern whether Red Hat
customers would be sued by TSG.

This is how a shell corporation moves the pea around.

[ Reply to This | # ]

Little sister is watching
Authored by: Fourmyle on Saturday, July 10 2004 @ 01:46 AM EDT
" -- given that the parties in each of the related litigations are
obviously monitoring all developments -- " Take a bow PJ :-) That
observation must really rankle SCOG at several levels.
Maybe a little off topic but I was trying to figure out what angle SCOG is
playing with SCO's Memo in Opposition to IBM's Motion for Summary Judgment.
Three things come to mind ;
1) they think the judge will swallow this. IMHO unlikely
2) they think they can tick the judge off enough to make a public statement they
can later point to as "Judicial Bias". That would be a desperation
move but hey it worked for MS once.
3) they want all this junk in a public record where others can quote it and not
get nailed for slander. ( insert usual suspects here )

Depending on what plays out in the next few weeks we may see if option 3 has any
wings.

[ Reply to This | # ]

Who makes Maalox?
Authored by: Anonymous on Saturday, July 10 2004 @ 01:53 AM EDT

I think I should invest in their stock just due to the amount of that stuff that SCO's legal team must be swigging to avoid getting ulcers over these cases. Trying to keep this tissue of lies from disintegrating has got to be giving them some serious stomach problems. (I'm cutting them some slack. If they aren't guzzling Maalox over these cases, they must be the most brazen liars to ever walk the face of the Earth.)

Oh and I really like the revelation that there is, after all, evidence of direct copying of System V code in Linux. I suppose since they now are claiming that they don't believe that IBM put it there, that's why they haven't produced any lines of code during discovery in the IBM case. (Doesn't pertain to the IBM case so they don't have to produce it, eh?) It makes me think that they're making a subtle threat to keep sueing people until the heat death of the universe or they run out of money. Whichever comes first. And I'm betting that 'ol Darl utters something at the upcoming Darl^WSCOworld along the lines of:

``So what I'm saying is that someone put that code in there so we'll keep sueing folks until we find out who it was. Maybe it was Autozone. Maybe it was Daimler-Chrysler. Heck, maybe it was that Ernie Ball fellow. No wait, his pockets aren't deep enough. You people think we don't know what's been going on around here. Well, we know what's going on and we know who's doing it. You see I know who ate my strawberries and I'll prove it. You'll see!''

He won't be able to help himself.

[ Reply to This | # ]

SCO should win
Authored by: Anonymous on Saturday, July 10 2004 @ 02:14 AM EDT
I think the judge should listen to SCO. Things have changed since september.
Now the new facts have come to light that everyone is infringing on SCO's
copyright (as demonstrated by the AZ case) a true controversy now exists between
redhat and SCO. Therefore in the name of judicial economy and to protect SCO
the case with redhat should proceed without further delay.

Congradulations SCO, you have proven Redhat's allegations with the arugments in
this memorandum. You have proven there is 1. A controversy 2. time is of
importance.

The only answer to your memeo is a quick start to the case. I hope the judge
complies.

[ Reply to This | # ]

cosmetic changes?
Authored by: kh on Saturday, July 10 2004 @ 02:22 AM EDT
Computer programs can help to identify potentially similar lines of code, but because of varying types of cosmetic changes that may be made to code (for example, to punctuation, abbreviations, and spelling), such programs cannot substitute for time-consuming visual review by software engineers.
What are they talking about? Computer source is one place where arbitrary changes in "spelling" and "punctuation" can not be done at all without the compile breaking. Apart from comments (which are not part of the actual code at all) and renaming variables, no cosmetic changes can be made at all. This is an out and out lie.

---
--
43 - for those who require slightly more than the answer to life, the universe and everything

[ Reply to This | # ]

"...has proven laborious..."
Authored by: Anonymous on Saturday, July 10 2004 @ 02:47 AM EDT
Let's compare some statements for fun.

Quoting from SCO2's letter to judge (from above):
"Although SCO has thus made substantive progress on the issues relating to contributions to Linux by parties other than IBM, SCO's ongoing investigation in this regard has proven laborious. Computer programs can help to identify potentially similar lines of code, but because of varying types of cosmetic changes that may be made to code (for example, to punctuation, abbreviations, and spelling), such programs cannot substitute for time-consuming visual review by software engineers."
Now quoting Darl McBride from this Feb. 3, 2004 InternetNews article:
[...] "We think that if you rip that code out, it's going to make Linux not nearly as attractive."

Well, according to the implication made by Darl McBride during the referenced Harvard Law speech, there are substantive amounts of improper code in Linux. So substantive, in fact, that it would 'make Linux not nearly as attractive' if totally removed.

So why the argument from SCO2's legal team about the search for improper code contributions being 'laborious' and difficult? The code should literally jump out at the examiners, if Darl is to be believed.

This is a major contradiction, and Darl needs to be challenged as to why. Namely, why did he make such grand public assertions in the past when, even according to SCO2's own legal team, there was no evidence and still no evidence?

These are questions the SEC should be asking Darl McBride, Chris Sontag and Ralph Yarro.

[ Reply to This | # ]

Point of SCO's June 17 Letter is ...
Authored by: bbaston on Saturday, July 10 2004 @ 03:36 AM EDT
... to let Her Honor know that, if IBM isn't the one that put all that SysV code in Linux, somebody else did (Red Hat?) and so there!

"At the same time, since September 2003, SCO has obviously had the opportunity to conduct further investigation of improper contributions to Linux by parties other than IBM. Through that investigation, SCO has discovered significant instances of line-for-line and "substantially similar" copying of code from Unix System V into Linux. That non-IBM conduct is conduct that SCO's complaint in Utah -- by its express terms -- does not challenge or encompass."

Further translation:
Also, Your Honor, if we get stomped and tossed out of court in Utah, Linux is filthy with our SysV code because we say it is, and you shouldn't stomp on us and throw us out too. Because that wouldn't be fair, just because we were mistaken in that court by 5 billion dollars or so. Understand?

I don't.

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

[ Reply to This | # ]

SCOg's plan becoming clear
Authored by: jbb on Saturday, July 10 2004 @ 03:46 AM EDT
1) insert foot in mouth
2) aim gun at foot
3) pull trigger
4) ????
5) profit!

[ Reply to This | # ]

Code comparison is relatively easy
Authored by: trs on Saturday, July 10 2004 @ 05:36 AM EDT
If SCO put a couple of technical people on the problem of comparing the code
they would probably find a solution within a couple of weeks irrespective of how
any copying has been obfuscated. It may take another few weeks to implement any
solution but this can still all be done in a relatively short period of time.

Lock a few smart techies (who dont point-and-click for a living) in a room with
this problem and you could bet your life savings that they would have a toolset
developed before the coke machine ran dry.



[ Reply to This | # ]

Out of the frying pan and into the fire
Authored by: Jude on Saturday, July 10 2004 @ 05:38 AM EDT
Through that investigation, SCO has discovered significant instances of line-for-line and "substantially similar" copying of code from Unix System V into Linux.

Wait a minute. Isn't this what SCO just told the Utah court they couldn't possibly do?
And if they did do it, isn't SCO defying the Utah court's order to produce it in discovery?

[ Reply to This | # ]

The courts have indulged this litigant to absurd lengths.
Authored by: garbage on Saturday, July 10 2004 @ 06:18 AM EDT
It is rapidly approaching a farce.

I wonder is it the intention of the judicial officers concerned to allow SCOX to
drown themselves in contradictions so thoroughly that the appeal process is
totally out of the question.

Or are we facing the horrific possibilty of SCOX achieving their goal of
dragging this on for years & eventually weasling their way in front of a
jury where they prevail on bluster.

Looking back at the course of this case SCOX have been highly successfull to
date.

They have sustained over a year of litigation in multiple jurisdictions on the
basis of an unsubstantiated claim.

They have ignored two court orders to substantiate their claim.

They have escaped penalty.

They have taken every opportunity to maximise hostile publicity against their
adversaries.

The officers of the company have gained in personal fortune.

The respondents have stridantly pointed out to the courts SCOX's deficiencies in
evidence & contradictions and still it goes on...

[ Reply to This | # ]

SCO's June 17 Letter to the Judge in Red Hat
Authored by: Steve Martin on Saturday, July 10 2004 @ 06:38 AM EDT

SCO continues to believe that IBM's violations of its license obligations and U.S. copyright law through its improper contributions of SCO's intellectual property to Linux -- the issues that SCO's complaint in Utah presents --

Here again, TSG is claiming copyright violations, not for continued distribution of AIX, but for contributing code to Linux, and yet they tell Judge Kimball that the only copyright infringement issue they have is with distribution of AIX. What are the chances that either or both judges see through this pathetic attempt at obfuscation?

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

[ Reply to This | # ]

I get it - finally
Authored by: Anonymous on Saturday, July 10 2004 @ 07:13 AM EDT
It took me a while but I finally understand SCO's plans:

Plan A - Create a noise and make IBM offer to buy you out.

Plan B - Create FUD, and get Microsoft to pay you to continue.

Plan C - Get in front of a jury, and win "non-literal" copying (i.e.
pinciples) of code. This means that code can *never* be removed, since it's all
based on the same principle, right? So everyone pays.

SCO are slime.

Clever slime, but slime nonetheless.

[ Reply to This | # ]

My head hurts on this....
Authored by: brian on Saturday, July 10 2004 @ 08:18 AM EDT
"Finally, SCO has made clear since at least SCO's
counsel's public comments on November 18, 2003 that its
litigation plan was to identify (at the time, within
ninety days) "a defendant" to "illustrate the nature of
the problem" -- i.e., "a significant user that has not
paid license fees and is in fact using proprietary and
copyrighted material." Since that time, SCO has sued one
end-user (AutoZone) -- "a defendant" to "illustrate" the
nature of the end-user problem. As SCO's actions have thus
made clear, it continues to believe that the most rational
route to an overall resolution of this problem is through
negotiation, and not broad-based litigation."

Isn't this the whole reason for the existance of the Red
Hat suit? I mean didn't Red Hat bring this suit in part to
prevent SCOX from harassing their customers? Why must SCO
"illustrate" the nature of the problem with a user?
Wouldn't it be more appropriate with the distributor /
creator of the code? Can't this judge see that SCO is
doing EXACTLY what Red Hat has alledged in this case?

Then there is this...

"Computer programs are even more dependent on human review
for purposes of identifying "substantially similar"
portions of computer code, which are often functionally
similar (but not exact copies) due to shared code
structures and/or sequences."

Isn't "functionally similar" what you get when you follow
a STANDARD? Are they yet again trying to assert trade
secret with this line?

In either event, if the judge in the IBM case decides to
issue a judgement on the IBM Linux activities doesn't this
mean that the Red Hat case still has to continue to clear
Red Hat of the same?

I think I have spent too much time in SCOLand (well beyond
La-La-Land) and am on the verge of an anurism trying to
understand this letter....

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

SCO's June 17 Letter to the Judge in Red Hat
Authored by: nattt on Saturday, July 10 2004 @ 08:26 AM EDT
"SCO has discovered significant instances of line-for-line and
"substantially
similar" copying of code from Unix System V into Linux. "

Let's see the code then SCO - no excuses - you say you have the evidence so
respond to IBM's discovery and tell them what they ask for.

[ Reply to This | # ]

Did anyone else notice this.....
Authored by: Anonymous on Saturday, July 10 2004 @ 09:00 AM EDT
In the SCO reply to Summary Judgment on CC10 we see this:

"Linux contains approximately 8,750 individual files and 4 million lines of code, in the kernel alone. Sontag Decl"

but in the letter to the judge in Redhat, we have this:

"Unix System V contains 17,741 individual files and approximately 6.5 million lines of code, while Linux contains 11,717 individual files and over 5 million lines of code."

Now wait a second here, I know they used approximately, but ~3,000 files and a million lines of code.

Also, they are talking about how they said this last year and things have changed since then, but as late as May of this year they stated this in their "OPPOSITION TO RED HAT'S MOTION FOR RECONSIDERATION STATEMENT OF FACTS":

Indeed, the Court correctly observed that the IBM case will address a central issue in this case: whether Linux contains misappropriated UNIX code. As noted in the Court's Order, this issue is raised by SCO's claim for breach of contract arising from IBM's contributions of code to Linux in violation of its contractual obligations. This issue is also raised directly by IBM's Tenth Counterclaim against SCO, which seeks a declaratory judgment that "IBM does not infringe, induce infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO's purported copyrights in Linux are invalid and unenforceable." [2] In claiming that this case is "fundamentally different" from the IBM matter, Red Hat focuses on SCO's copyright claim against IBM, ignoring IBM's Counterclaim which focuses on violations of SCO's rights arising from the use, reproduction and use of Linux. There is no doubt that, as it is presently constituted, the IBM case will address central issues raised in this lawsuit. [3] Therefore, it would be "a waste of judicial resources," and resources of the parties, to litigate this case while a substantially similar question is being litigated in federal district court in Utah.


None of this passes the smell test, what exactly are they trying to say.

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: blacklight on Saturday, July 10 2004 @ 09:38 AM EDT
"At the same time, since September 2003, SCO has obviously had the
opportunity to conduct further investigation of improper contributions to Linux
by parties other than IBM. Through that investigation, SCO has discovered
significant instances of line-for-line and "substantially similar"
copying of code from Unix System V into Linux. That non-IBM conduct is conduct
that SCO's complaint in Utah -- by its express terms -- does not challenge or
encompass."

There aere several issues with that paragraph:

(1) the Darl had already been quoted as claiming as of September 2003, if my
memory serves me correctly, that 40% of Linux code was infringing. Without
belaboring over the Darl's assertion as of June 2003 - I think - that SCOG's
evidence of infringement is so strong that they don't need any discovery, the
alleged post-September 2003 "discoveries" of infringement don't match
either the Darl's statements or aparently SCOG's original allegations in its IBM
suit;
(2) Further, SCOG was required by two court orders to produce the allegedly
infringing lines with specificity and to date has not fulfilled that obligation.

(3) In addition, SCOG is acting as if IBM's Lantham Act based counterclaim
either does not exist or is irrelevant, and therefore can be ignored.

"Although SCO has thus made substantive progress on the issues relating to
contributions to Linux by parties other than IBM, SCO's ongoing investigation in
this regard has proven laborious. Computer programs can help to identify
potentially similar lines of code, but because of varying types of cosmetic
changes that may be made to code (for example, to punctuation, abbreviations,
and spelling), such programs cannot substitute for time-consuming visual review
by software engineers. Unix System V contains 17, 741 individual files and
approximately 6.5 million lines of code, while Linux contains 11,717 individual
files and over 5 million lines of code. Computer programs are even more
dependent on human review for purposes of identifying "substantially
similar" portions of computer code, which are often functionally similar
(but not exact copies) due to shared code structures and/or sequences."

The questions in everyone's mind are of course: what did the purported MIT
mathemiticians do, and what happened to them, why is SCOG moaning about being
forced to do work that everyone assumed should have been done prior to any of
the litigations, and just what did SCOG really have to substantiate its
allegations in the first place.

"Of course, SCO's statements to this Court many months before much of this
investigation could have occurred (and much longer before it could possibly be
completed) cannot preclude SCO from protecting its rights, including by engaging
in continuing investigation of contributions to Linux by parties other than IBM.
Nor can the progress made in such investigations -- relating to contributions to
Linux by parties other than IBM -- be a basis for claiming that SCO's statement
to this Court last Fall somehow undermines later statements made to another
court. This point is further underscored by the fact, as noted above, that the
issues relating to IBM's improper contributions to Linux continue to predominate
over other potential issues that affect Linux."

I don't get the meaning of this paragraph, except that SCOG is saying that it
did not lie. SCOG claims to have made progress in its investigations, but this
is of course a statement without substantiation.

"Finally, SCO has made clear since at least SCO's counsel's public comments
on November 18, 2003 that its litigation plan was to identify (at the time,
within ninety days) "a defendant" to "illustrate the nature of
the problem" -- i.e., "a significant user that has not paid license
fees and is in fact using proprietary and copyrighted material." Since that
time, SCO has sued one end-user (AutoZone) -- "a defendant" to
"illustrate" the nature of the end-user problem."

In SCOG's planning, Autozone and DC were to be followed by suits against ten to
fifteen more corporate end users. In other words, SCOG was going into the
"illustration" business in a big way.

"As SCO's actions have thus made clear, it continues to believe that the
most rational route to an overall resolution of this problem is through
negotiation, and not broad-based litigation."

SCOG is certainly aiming for settlements, because it has a pretty good idea that
it can't win on the merits. So SCOG's legal strategy is to drag out, and inflict
as much disproportionate delay, aggravation and expense as possible.

In summary, the SCOG letter certainly clarifies a lot of things, including the
concept that officers of the court have the freedom to lie through their teeth
in court - and that SCOG is certainly not shy about taking advantage of that
concept.

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Dell stops shipping Windows on all its computers
Authored by: Anonymous on Saturday, July 10 2004 @ 09:52 AM EDT
Yes, off topic, but very interesting indeed!
Dell stops shipping Windows on all its computers!

http://www.newsforge.com/articles/04/07/07/1848210.shtml?tid=149

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Testing my limits of endurance
Authored by: Anonymous on Saturday, July 10 2004 @ 10:08 AM EDT
I confess that I am really getting bored with SCO. Their case should have been
in the dumpster by now. What is going on? Can't Judge Kimball and the others
see that this is a bogus case (two court orders ignored, no evidence in a year
and a half) and yet it continues. Why does SCO get what seems to be
preferential treatment. I know if I brought a suit against IBM I wouldn't last
an hour and a half. I suspect that the M$ connection is at work here somewhere,
but IANAL, and can't understand how SCO's litigation survives. The only one
profitting from this delay is M$. How long will this charade continue. With so
many being held hostage by these cases, no possibility of success for SCO, and
the only benefactor being MS; why is it taking soooo long. I know the arguments
that Judge Kimball, for instance, does not want to have his decision overturned
on appeal; but how can he let this case linger when there has been absolutely no
proof presented.

Anyway, I want to take a nap; will someone wake me when this thing finally
ends.

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: joef on Saturday, July 10 2004 @ 10:49 AM EDT
SCO's letter to the judge concluded with the following sentences:

Finally, SCO has made clear since at least SCO's counsel's public comments on November 18, 2003 that its litigation plan was to identify (at the time, within ninety days) "a defendant" to "illustrate the nature of the problem" -- i.e., "a significant user that has not paid license fees and is in fact using proprietary and copyrighted material." Since that time, SCO has sued one end-user (AutoZone) -- "a defendant" to "illustrate" the nature of the end-user problem. As SCO's actions have thus made clear, it continues to believe that the most rational route to an overall resolution of this problem is through negotiation, and not broad-based litigation.

(Emphasis added.) That summation needs the following addition for completness:

... as demonstrated by the extensive negotiations that preceeded our filing of lawsuits against IBM, D/C, and AutoZone."

Which would go far to demonstrate their good faith. (Note how they love that phrase.)

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SCO's Doom
Authored by: om1er on Saturday, July 10 2004 @ 12:11 PM EDT
This letter is very significant, from my point of view (IANAL).

SCOG's attorneys are now just covering their tracks. Forward momentum has
stopped. This letter is the high water mark in all of these cases: the tide has
finally turned, and SCOG's lawyers know it.

Why? Because they have been caught lying to federal court judges, while
everyone was watching, and they know they've been caught. They hand delivered
this letter probably out of pure panic, but it is toooooo late.

When they go to court now they will face judges who know that SCOG attorneys
have intentionally lied to them personally (to say nothing about what has been
said outside of court by SCOG).

So when SCOG says it will take 26,000 man years to analyze the source code (or
whatever), it won't have quite the same effect, probably.

I expect this letter to come up on all the cases, because it is so damaging, and
illustrates so well what SCOG stands for - lies.

---
Are we there yet?

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: Anonymous on Saturday, July 10 2004 @ 01:24 PM EDT
Can't IBM use This statement in Utah?

<SCO has discovered significant instances of line-for-line and
"substantially similar" copying of code from Unix System V into
Linux.>

In discovery SCO was ordered to list with specificity. Where are the details?

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: haegarth on Saturday, July 10 2004 @ 02:27 PM EDT
Sounds true, but only if they do it openly.
On the other hand: I feel this would make them as evil as M$.

---
MS holds the patent on FUD, and SCO is its licensee....

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: Anonymous on Saturday, July 10 2004 @ 09:16 PM EDT
OK, here's what has me really puzzled about SCO's letter. I thought the point
of those letters was to give the judge your arguments about whether or not the
stay should be lifted, based on developments of the preceeding three months.
And that's exactly what Redhat's letter looks like, but SCO's letter doesn't
argue that the stay should be kept -- I can't even find the stay mentioned in
their letter. What am I missing here?

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Automated comparison tools
Authored by: Anonymous on Saturday, July 10 2004 @ 11:10 PM EDT
Well, there is a very common one - the compiler. If you run the two sets of code
through the same compiler, regardless of the obfuscations of variable name
changes, formatting, etc. you should get *the same* machine code if the source
code is expressiong the exact same sequence of operations. OK this is apart from
code variations due to register variables and different length variables (long
vs int. etc) but these could be fixed by the C macro processor
#define register
#define int long
etc...

Mark H

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Yippee - we make a difference.
Authored by: Night Flyer on Saturday, July 10 2004 @ 11:31 PM EDT
From: Morris, Nichols, Arsht & Tunnell <snip>

"-- given that the parties in each of the related litigations are obviously
monitoring all developments -- "

Don't anybody underestimate how much difference GROKLAW makes.

----------------------
As I said before, IBM is using Linux as a cornerstone of its business plan. It
does not want any slur on (or infringing code in) Linux, as this affects its
corporate credibility. It may distress SCO that IBM followed this up in court
when SCO brought the subject up, but what goes around comes around. Anyway,
from IBM's point of view it is necessary to settle this issue one way the
another.
----------------------

I think SCO's comment, as follows, is mostly bogus:

"Computer programs can help to identify potentially similar lines of code,
but because of varying types of cosmetic changes that may be made to code (for
example, to punctuation, abbreviations, and spelling), such programs cannot
substitute for time-consuming visual review by software engineers."

I have seen and used programs that compare code between 2 programs, and others
that search for key words and phrases. I agree they are somewhat limited.

However, based on direct commands from the SCO CEO, President, Board of
Directors, SCO's lawyers, shareholders, the Courts, IBM, Red Hat, Daimler
Chrysler, AutoZone, and all of us, and with the potential for a $5 billion
payoff, I expect the 'provider of software solutions' should have the ability to
write a small comparison program that could be quite efficient.

Hypothetically, the program would compare code only (while ignoring comments),
or it might compare comments only (while ignoring code), or it might write a
program comparing code line for line with less than 5 characters that are
different, (simultaneously excluding lines commonly used in the structure of the
code, such as end of file, etc.,) or some other imaginative solution.

SCO only needs its own Sys V source code and freely available Linux source code.
It can even use its in-house expertise (remember, AIX and Dynix source code was
only available for viewing by third party programmers and not SCO staff).

If SCO can't do this in a year... Well maybe they are in the wrong business.

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

My point? I think PJ called it like it is in her summary which, in part, said:
"And those meanies at IBM used what we [SCO] said to you [the court] and
they misconstrued it to mean what we said..."

Well wadda ya know... SCO has been playing fast and loose with the truth and got
caught by the court(s).

------------------
Veritas Vincit: Truth Conquers

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: blacklight on Sunday, July 11 2004 @ 12:15 AM EDT
It was incredibly stupid of the SCOG legal team to tell inconsistent stories in
each court. And SCOG's letters of clarification, if they are anything like the
letter that SCOG addressed to Judge Sue Robinson, will only add accelerants to
the fire. Now, SCOG has put itself into a situation where any to all of the
judges involved can react swiftly and negatively.

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Ah, but they provide a solution...
Authored by: Anonymous on Sunday, July 11 2004 @ 03:01 AM EDT
"Autozone, a defendant to illustrate the nature of the end-user
problem"

Yes, Judge Robinson should definitely examine the Autozone case, as it clearly
shows the problem. As Autozone has already said "SCO has still not even
clarified what this suit is about!"

The nature of the problem is SCO has no evidence and no case and has to keep
submitting ever more shaky memorandums to try and string the whole game on for a
few more months.

Let's hope Judge Robinson agrees with SCO on this one and determines that
there's no point in staying the case any longer since the IBM isn't going to
solve anything soon.

And once the stay is lifted SCO can explain why it should then be stayed in
favor of Autozone because Autozone's use of Redhat Linux is somehow more
infringing than Redhat distributing it.

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Hang on...
Authored by: Anonymous on Sunday, July 11 2004 @ 04:44 AM EDT

>SCO has discovered significant instances of line-for-line and "substantially similar" copying of code from Unix System V into Linux.

Attention Red Hat and IBM: next time you're in front of a judge, feel free to quote this and suggest that SCO should be required to show this code. Right now. This very instant. No, it's OK, we'll wait while you pop out and get it. Run along. We'll be here when you come back. If you come back.

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SCO is making RedHat's case
Authored by: Anonymous on Sunday, July 11 2004 @ 10:38 AM EDT
SCO is making RedHat's case, at least supporting their claims that this case should be the one to go forward. Declarations of non-infringement are meant to stop just this type of thing, nebulous claims of infringement that are meant to disparage a product and that keep a threat of suit looming over it.

Of course, SCO's statements to this Court many months before much of this investigation could have occurred (and much longer before it could possibly be completed) cannot preclude SCO from protecting its rights, including by engaging in continuing investigation of contributions to Linux by parties other than IBM.

SCO is claiming that there is infringement and they have proof enough to sue end users. Yet they will never have all the proof because it is just too darn hard to find the infringement. Until they have all the proof, this case should not move forward.

I believe it was AutoZone that mentioned declaratory lawsuits filed by manufacturers are preferred over lawsuits against end users. It only makes sense. If you have someone actively copying AND SELLING your intellectual property, wouldn't you want that stopped?

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this document marks the tipping point.
Authored by: Anonymous on Sunday, July 11 2004 @ 02:44 PM EDT
this document effectively marks the tipping point in this farce of a legal case.
up until now the SCOmbags had been introducing new charges or actually trying to
defend from the defence. it was moving forward -- one way or another. their lies
have finally caught up with them. now they are defending from themselves.
effectively, if you noticed, the SCOmbags are not introducing anything new. they
are reduced to trying to stop the leaking on a ship that's breaking up. at this
point, the defendents should get the SCOmbags to make more statements one way or
another since they are bound to lie and eventually it'll all contradict each
other. of course, IANAL.

me, i've got myself a bag of popcorn, sitting in my comfy couch, facing the
lake, watching this show implode on top of the SCOmbags by their own device with
the nazguls cheering them on.. ;)

Anonymous Users' law of lies:
lies are predesposed to a feedback loop.

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: Anonymous on Sunday, July 11 2004 @ 04:16 PM EDT
Suing an end-user does nothing to solve SCO's issues. All it does is punish an
innocent company who purchased a legal product and does not have the expertise
to determine if the infringment is indeed real.

It is the Bully extorting money from the weak.

If SCO really had a case it would go after Redhat/SuSE and others. If it could
prove the code was infringing, they the could punish the perpetrators.

Everything SCO says about the reasons they sued AZ is a lie until after they
prove the infringement. Then after they prove they have been infringed on then
the matter of what is owed them is relevant.

Seems so simple. It is so simple. I guess that is why you pay $25,000,000 to a
lawyer. You have to pay so much because it takes a lot of creativity combined
with tremendous logical skills and no morals. These people are hard to find.

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Sharing forks
Authored by: Anonymous on Sunday, July 11 2004 @ 04:41 PM EDT
Yarro/Tibbitts strategy has been compared to the computer science "Dining
Philosophers" problem.

To make this letter "stick", they *only* have to change the rules of
the philosopher exercise:

"Your honor, we can PROVE that it is possible for two philosophers to share
forks! We will send them to one of our great Utah hospitals, where we will have
holes punched in the sides of their cheeks, then have them stitched together.
BUT WE WILL KEEP THEIR TONGUES SEPARATE! After a few weeks, if either
philosopher takes a bite, the food can freely pass between their mouths,
satisfying both of them. Thus, they need only ONE fork and the situation is
resolved. The people that tell you that TWO forks are needed are liars.

"Your honor, we intend to PATENT this method, in not less than 90 days. We
call it the "Holey" Philosophers Solution! And now that we have
disclosed this method to the court, we also intend to COPYRIGHT it!

"We also intend to patent the idea of two philosophers french-kissing
through the sides of their mouths. Your honor, you can CLEARLY see that we have
a real case now!!!


This would be no worse scam than what the poor judges have had to endure from
SCOG / Canopy liars.

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SCO's June 17 Letter to the Judge in Red Hat
Authored by: Anonymous on Sunday, July 11 2004 @ 06:37 PM EDT
I may have missed it already but a thought struck me. If it would take 26,000
man years to do the comparison then could you claim that there is not sufficient
similarity to matter, since it is arguable that writing UNIX from scratch could
take less than 26,000 man years.

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will it ever end?
Authored by: Anonymous on Sunday, July 11 2004 @ 06:57 PM EDT
I reckon SCO is going to go bankrupt before the end of the trial. Which will
leave the questions in suspens forever, and MS will then always have the
argument of "Open Source has never been proved to be white as snow"

But they are playing a nice game, aiming to run out of money and the lawyers
will go in a big bang claiming unpaid expenses but they have to stop because
they have no-one to sue.

Been done before, why not this time again. Seems to meet SCO's (MS's) goal
too...

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