decoration decoration
Stories

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

Gear

Groklaw Gear

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

You won't find me on Facebook

Donate

Donate Paypal

No Legal Advice

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

Here's Groklaw's comments policy.

What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments

Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
SCO Files Another Request to File Another Overlength Memo, This One Re Discovery
Thursday, July 15 2004 @ 08:41 AM EDT

SCO clearly has told its lawyers to win something, and they are trying hard to prevail at the August 4 hearing on IBM's summary judgment cross motion for a declaratory judgment of non-infringement.

Their own Amended Motion to Dismiss or Stay IBM's 10th counterclaim is heard that day too, but they seem to me to be focused more on the IBM cross motion, not that there hasn't been lots of paper on that motion to dismiss too. Now they have filed another Ex Parte Motion for Leave to File Over-Length Memorandum Re Discovery, and the court has granted them permission to do so. A lot of filings about discovery and IBM's alleged failure to provide what SCO wants, which is technically separate from the August 4 matters, but obviously being used by SCO, because it is excusing its own failures by pointing the finger at IBM in a desperate effort to block an IBM win on the summary judgment. They clearly think they have a shot at beating IBM on this one and intend a PR blitz to then persuade the world that it means something momentous.

This is the most intensive flurry of legal paper we've seen from SCO yet. Leaving aside their Motion to Dismiss IBM's 10th Counterclaim, here's what has happened so far:

Now we have the current request to file another overlength memorandum, re discovery. I think that's everything. They just can't say enough bad things about IBM. There is more, actually, but it isn't up on Pacer yet. Evidently they would like some good press so the stock will go back up and they can get some idiots to take a license. At least that is the story that has been reported.

One thing is for sure. If they don't defeat IBM's summary judgment motion, it won't be for lack of trying. The funny part is that while a win for IBM would be curtains for SCO, I don't think losing it does anything to IBM but make them wait a bit for victory.

What they have wanted from day one is to see all of IBM's cards, the code, the email, the logs, the everything. They filed this lawsuit, I gather, without having evidence in hand, just figuring on going on fishing trips. The court, to date, has not permitted them to do that, because they are the plaintiff, and the plaintiff is supposed to clearly tell what the alleged offence is.

So far, IBM has pointed out, SCO simply hasn't told anybody what precisely SCO's beef is regarding the alleged copyright infringement they told the world IBM was guilty of all those moons ago. So they'd like a judgment from the court that they are not guilty. SCO would like to do discovery *before* it tells. All the paper is about that, in my view, and is a last-ditch effort to avoid the inevitable. They want to comb through everything to try to justify what they have done to IBM. Also, I'm beginning to suspect that they are using the IBM case as their search mechanism, looking for proof they can use for end user lawsuits regarding methods and procedures, their unique concept of what is a derivative work. Why else would they want every single version of AIX from the founding of the world?

They may win some more time for discovery, I suppose. That would hardly put a dent in IBM's armor, though, and IBM will just keep on moving forward with inevitability. It's impossible to predict what a judge will do with certainty, only what he ought to do. But I can't imagine the court making IBM show all that SCO is asking for unless SCO gets specific first, and probably not even then. Unfettered access is a ridiculous request. There are limits to discovery, and one of them is you don't get to move in to the other side's headquarters and just start going through the files. It's their lawsuit, so they are supposed to tell the other side exactly what they allegedly did wrong. And I don't think they can be specific. If they could, they would. That is the easy way to defeat a summary judgment motion, just by listing some facts in dispute that a jury needs to decide. It's SCO's dilemma that for whatever reason they seemingly can't or won't.

IBM in its Cross Motion wrote that they asked SCO to tell them precisely what lines in Linux code they claim ownership of and the "precise lines of code in the UNIX software from which SCO alleges such Linux code is copied or derives." Unless they can show that match, IBM said, they really can't show copyright infringement. So it was put up or shut up time for SCO. Instead we have the blizzard of paper saying that IBM needs to show more code and everything else SCO can think of. Some of the declarations and exhibits are sealed, so it is possible SCO is trying to come up with something. Because it is sealed, we can't know until the hearing, which is blessedly soon, so this paper blizzard will finally come to an end. Reading all their junk is making my SCO allergy flare up again.


  


SCO Files Another Request to File Another Overlength Memo, This One Re Discovery | 356 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please.
Authored by: Anonymous on Thursday, July 15 2004 @ 10:14 AM EDT
For PJ.

Loïc

[ Reply to This | # ]

OT here please.
Authored by: Anonymous on Thursday, July 15 2004 @ 10:16 AM EDT
With link for poor windows users.

Loïc

[ Reply to This | # ]

Overlength, puns, trollings, songs here please
Authored by: Anonymous on Thursday, July 15 2004 @ 10:18 AM EDT
Loïc

[ Reply to This | # ]

SCO allergy ...
Authored by: Jude on Thursday, July 15 2004 @ 10:27 AM EDT
The heartbreak of SCOriasis?

Sorry, I couldn't resist.

[ Reply to This | # ]

All made out of ticky-tacky
Authored by: overshoot on Thursday, July 15 2004 @ 10:28 AM EDT
They all look the same. I'd appreciate it if someone could check me on this, but the last few 80+ page monsters all look to me to be almost identical in content with only a few minor variations to screw up the table of contents.

In other words, SCOX is taking the "if one long whine doesn't do it, repeat until you get better results." Personally, I can't imagine the Court being favorably impressed.

Someone please tell me that these memoranda actually contain distinct material. I'd love to actually be wrong about this one.

[ Reply to This | # ]

IBM-206.pdf (the 86 page overlength thing)
Authored by: JeR on Thursday, July 15 2004 @ 10:54 AM EDT
MEMORANDUM IN OPPOSITION TO DEFENDANT INTERNATIONAL BUSINESS MACHINES’ MOTION FOR SUMMARY JUDGMENT ON ITS TENTH COUNTERCLAIM FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT

is here http://www.xs4all.nl/~roo versj/IBM-206.pdf.html for your critical review...

[ Reply to This | # ]

Unfortunately...
Authored by: Anonymous on Thursday, July 15 2004 @ 10:59 AM EDT

Well, you see, I have the vague but nevertheless
persistant filling that SCO will manage to get
rid of the summary judgment. They threw so much
mud that some will undoubtly stick to the judge
half-moon glasses who will then go "Oh-oh! It is
true that IBM has all these information and maybe
SCO is right... After all, I can hardly see anything
by myself, everything looks dirty" After what, SCO
will parade in the media till at least fall...

Maybe I'm just too pessimistic, but seeing how long
the farce has gone, and seeing how SCO is still
taken seriously after so many blatant lies does not
make me feel confident in the system...

NNP (No Name Provided)

[ Reply to This | # ]

Sympathy for judges.
Authored by: Franki on Thursday, July 15 2004 @ 10:59 AM EDT
I used to have a pretty low opinion of legal "professionals" and I
still do for some of them. (like SCO's).

I am starting to respect the judges more and more though..

They have to wade though endless reams of rubbish like this and then not appear
insane when talking about it in court.

That's a tall order, I have read some of them here on groklaw, and some required
that I immediately pulled out two handfuls of hair and dance around the kitchen
naked.
(I was going to do the later one anyway, but for the purposes of this discussion
I'll blame it on reading this stuff.) :-)

Anyway, the point is, I really don't envy the judges that have to wade through
this neck deep river of cr@p.

God bless Mr Kimball and co.

rgds

Franki

---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

Res Ipsa Loquitor, opponent's data, and discovery
Authored by: AllParadox on Thursday, July 15 2004 @ 11:17 AM EDT
Something that may seem amorphous to non-lawyers is the issue about what
information a party can force the other to disgorge.

The concept of Res Ipsa Loquitor might be enlightening. The classic law school
case on Res Ipsa Loquitor is the plaintiff, an innocent, walking past the
defendant's plant. A full barrel rolls out of the plant and slams into the
plaintiff, and the plaintiff is physically badly injured.

Investigation discloses nothing. No one at the plant admits rolling the barrel,
or even admits being near the barrel or the doorway at the time the barrel
rolled out of the doorway. A reasonable person would conclude that the guilty
employee is lying, but which employee is guilty cannot be determined.

The problem is that a judgment cannot be based merely on disbelief of a lie.
Disbelief, alone, does not establish the contrary fact.

Res Ipsa Loquitor deals with this: it is a principle that says that one who is
in control of a thing is responsible for the effect of the thing. The plant
owner is responsible for the effect of the barrel hitting the plaintiff, in the
absence of any other information. He may only escape liability by asserting and
carrying the burden of proof of an affirmative defense (e.g. intervening
criminal conduct: against company policy, an employee intentionally assaulted
the plaintiff with the barrel, a felony.) Even with Res Ipsa, this is enough
information for the plaintiff to run a fishing expedition into defendant's
records to look for *anything* that might lead them to more information about
the incident.

In the context of the IBM case, TSG publicly claims that infringing code was
contributed to Linux by IBM. In and of itself, a naked claim will not support a
"fishing expedition" into a defendant's internal documents and
records. In the Res Ipsa case above, the plaintiff had to claim more than that
he was injured; the claim had to include enough information to tie the injury to
the defendant's plant, and conduct at the defendant's plant (i.e. it was enough
to say that a barrel belonging to the defendant rolled out of the door of the
plant and struck the plaintiff.)

The problem for TSG is that the judge does not believe that TSG has provided
enough information to reasonably conclude that it is more likely than not that
IBM has infringed on TSG copyrights. TSG's claims that no volunteer group could
have written so much code in such a short time are apparently not enough for the
judge. Those claims are certainly not enough for me. Even a tiny bit more
information would probably be enough for a wholesale fishing expedition.

I am not the judge, of course, so I cannot say for certain, but I suspect
something along the lines of "We have just identified 437 consecutive lines
of Linux code that match Unix Sys V code that was delivered to IBM as part of
the initial contract, having only been modified by changing the names of the
variables and functions" would be very persuasive.

However, this is one of those "the dog that did not bark" cases. At
this late date, after being in possession of all the versions of AIX and Dynix
that they received, after being in possession of the original Unix Sys V code
from the begining, TSG has still failed to disclose a single identified copied
line, after being repeatedly ordered to do so.

The judge could reasonably conclude that there was no copying and that even if
there was copying, that the code was so thoroughly modified that it can no
longer be considered to be "derivative" in the narrow copyright sense.
Therefore, the judge could conclude that TSG will not be harmed by an adverse
judgment.

For me, the funny part is that TSG's arguments and topics could probably be
turned directly against TSG by the Open Source community. In the absence of a
compelling explanation, functionality is a strong indicator of copying. Linus
and Friends implemented very similar functionality, without copying: the
compelling explanation is that the similarity was an intentional, specific goal,
and Linux was initially built to inter-operate with Minix. Now, SCO products
display functionality that is fantastically similar to Linux functionality.
Experience with independant design processes would suggest that this is very
unlikely. Therefore, fishing licenses for TSG internal code and records are
probably available to qualified copyright owners for the price of a filing fee.




---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

SCO Files Another Request to File Another Overlength Memo, This One Re Discovery
Authored by: Anonymous on Thursday, July 15 2004 @ 11:24 AM EDT
On the fourth page of SCO's monster memo there's a paragraph which should be
used against them:

quote:

No doubt IBM, like many litigants, would like to win its claim before it even
has to file it. But if IBM has a claim, it must support that claim and permit
SCO to test it through discovery and on its merits. IBM presents no facts or law
to excuse it from that obligation.

end quote:

Now, just replace IBM with SCO and don't ruin another keyboard!

PCMOM, not logged in. :)

[ Reply to This | # ]

SCO Files Another Request to File Another Overlength Memo, This One Re Discovery
Authored by: Anonymous on Thursday, July 15 2004 @ 11:29 AM EDT
I think IBM will win this motion on a simple argument:
1. They requested discovery on how Linux-Code is derived from System V-Code
2. SCO certified that they fully responded to that request (!)
3. According to IBM: In the produced discovery they did not identify a single
line of such derived code.

Conclusion: There is no System V code in Linux (or SCO cannot prove it), so IBM
(or anyone else) cannot be guilty of putting it there.

Sounds quite easy to me :-)

TToni

[ Reply to This | # ]

How many duplicative memos and how many contradictions
Authored by: Anonymous on Thursday, July 15 2004 @ 11:29 AM EDT
SCO is filing 5 memos and 3 motions on discovery (their renewed motion to
compel, with memo, the reply memo in the support of same, their memo which
purports to be following Judge Wells' March 3rd order for the procedure to get
more code, the support memo in the support of same, and their rule 56f motion,
and their memos in support of same). All or virtually overlength are
overlength. SCO is apparently telling people they will boost the stock price
(aimed at investors rather than the court). And all same the same thing. What a
waste of space and time with all this duplication.

SCO is also *still* arguing to the Utah (IBM) court that IBM's 10th counterclaim
should be dismissed or stayed because of their perverse interpretation of first
filed rule, and that AZ deals with the same issue. Yet in the Nevada court
(AZ) they are telling the AZ court that AZ case deals with completely different
issues from IBM.

SCO is now arguing that it would take 25,000 years to analyze the code, and it's
impractical. Yet in their original motion to compel discovery they didn't say
that, they specifically said they needed IBM to produce so that they could
analyze the code. Furthermore, Kevin McBride claimed at oral arguments on
December 5th, that they could do the analysis in the weekend.

Despite now saying that analyzing what they've already got would take 25,000
years, and that admitting that they haven't analyzed what they've already got
(e.g. in rule 56f motion, denied motion for protective order, etc), they *still*
say they want IBM to produce about 400X as much information as IBM has already
produced (25,000 years X 400 = 10,000,000 years!)

SCO told the court in response to IBM's motions to compel discovery, that the
SCOforum presentation was about a possible copyright case. Now SCO says they
never had any copyright case, they never did any copyright analysis and they
have not got any copyright experts.

And none of the discovery that SCO requests would produce, or even has potential
to produce, evidence of substantial similarity (a necessary precursor to a valid
copyright claim).

- It doesn't matter if IBM has 250 people working on Linux in 10 locations, of
2,500,000 in 1,000 locations... (one of the things SCO insists it might
discover), if there's no substantial similarity between Linux and SCO's
purported copyrights in System V, there's no copyright infringement.

- It doesn't matter whose attended the same university as Linus (SCO's false
claims about Minux), if there's no substantial similarity between Linux and
SCO's purported copyrights in System V, there's no copyright infringement.

- It doesn't matter what Linus said about whether any of SCO's claims about
shared libraries make sense or what they imply (SCO's argument for depositions),
if there's no substantial similarity between Linux and SCO's purported
copyrights in System V, there's no copyright infringement.

- It doesn't matter what some AIX or Dynix programmer did in 198x (SCO wanting
to discover the history, programmer notes, interim versions etc), if there's no
substantial similarity between Linux and SCO's purported copyrights in System V,
there's no copyright infringement.

- etc


SCO also reverses the declaratory judgement for non-infringement of copyright
burden. According to them, IBM has to prove it's innocent in all IBM's
activities. (Contrast that to IBM's PSJ memo)

I could go on... What a bunch

Quatermass

P.S.
Why is not one of the media outlets that carried all Darl's claims to have
evidence in hand, to have had 3 teams, to have done a deep dive, etc.. - not now
writing about the dramatic change in SCO's position.

[ Reply to This | # ]

PJ you know why they want it all so stop pretending you don't
Authored by: Paul Shirley on Thursday, July 15 2004 @ 11:46 AM EDT
their unique concept of what is a derivative work. Why else would they want every single version of AIX from the founding of the world?

Its clear they want to find a chain of changes that start with SCO source and end with something very different. Moreover their idea that this might be a reasonable attack is shared by a large proportion of the computer industry, that's why clean room working methods are so common when cloning products. Its why open standards are so vital in programming, to avoid massive duplication of effort avoiding derivative copyright problems.

While precedents for other copyright case law probably means they cannot ultimately win on this basis even if it happened that way (which I doubt),due to degree of change, its not desirable to make this an acceptable practice - its far too open to abuse.

Don't confuse their outrageous extrapolations of derivative with their attempt to use more normal interpretations in court. SCOG love using words to mean different things, we all know it so stop pretending you don't just to get cheap shots in.

[ Reply to This | # ]

Re: "Win something"
Authored by: Anonymous on Thursday, July 15 2004 @ 12:32 PM EDT

Hmm...

I've got this mental picture of the Bad News Bears vs. the New York Yankees. And the Bears sponsor jumping up and down because they can't get a hit against the Yankees pitchers.

[ Reply to This | # ]

SCOG Has Provided Their Own Reason To Deny Discovery
Authored by: moogy on Thursday, July 15 2004 @ 12:47 PM EDT
[Some of this is repeated from a earlier post]

Recall that during the Dec. 5th Oral Arguments that judge
Well's had questioned whether SCOG could even digest
and/or process, in a timely manner, all the entire code
history of AIX if it were given to them and Kevin assured
the court that they could.

It appeared to be an issue for judge Well's, that if SCOG
could not digest the volume of discovery requested in
a timely manner, then it makes no sense to allow that
discovery. SCOG's current claim is that it would require
25,000 man-years to process, just the requested code.
They seem to provide their own reason for not getting
what they are requesting. The requested discovery can
not be processed in a timely manner and they have just
told the court that.

Add to that the fact that they want all CVS, email, and
any internal documents relating to AIX or Linux, all
of which, by their very nature, can not be searched
for copyright infringment by any auotmated process, but
will require human reading.

"the whole world is watching!"

---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win -Gandhi

[ Reply to This | # ]

SCOG's memo flood: IBM205 reply to non-existant opposition?
Authored by: Thomas Frayne on Thursday, July 15 2004 @ 02:25 PM EDT
AFAICS, IBM205 is a reply by SCOG to an IBM opposition memo that does not
exist.

205 - Reply by SCO Grp to response to [190-1] motion to compel discovery (blk)
[Entry date 07/13/04]

The PDF has not appeared in TUXROCKS, so I can't check if this is just another
mislabled docket entry. Does anyone know whether IBM filed an opposition memo?


[ Reply to This | # ]

This shows me...
Authored by: PeteS on Thursday, July 15 2004 @ 02:42 PM EDT
They are truly desperate

No really - and hang with me a minute

When they have no evidence, and are facing complete descruction of their various
lawsuits (and thereby their business), they must - MUST - do something (or so
they think).

As someone who has actually been in combat, I can tell you the opposition in
combat gets like this (fling whatever everywhere!!!!) when they are in the
situation of completely losing, and have no clear headed leadership.

This is so familiar it's amusing in a way.

Let us now listen to the dying sounds of a company and it's lawyers.

Pete S


---
Today's subliminal thought is:

[ Reply to This | # ]

SCO Files Another Request to File Another Overlength Memo, This One Re Discovery
Authored by: blacklight on Thursday, July 15 2004 @ 02:43 PM EDT
"They may win some more time for discovery, I suppose. That would hardly
put a dent in IBM's armor, though, and IBM will just keep on moving forward with
inevitability"

The choice for SCOG really boils down to dying now if IBM's PSJ goes through,
and dying later if it doesn't: that's no skin off my nose either way - Let's
just agree to make sure that dying later will be a long, hard and excruciatingly
painful experience for SCOG. Assuming that the judge chooses to reject IBM's
PSJ, the judge will still be bound to explain why he did so and under what
circumstances IBM may resurrect its motion. SCOG had best be careful what it
wants, in case it might get it.

[ Reply to This | # ]

SCO Files Another Request to File Another Overlength Memo, This One Re Discovery
Authored by: Anonymous on Thursday, July 15 2004 @ 04:37 PM EDT
Would this not then be a good instance for a frivolious (SP?) lawsuit action w/
all Redhats fees and expenses (possibly some punative damages tossed in for
spice) when the suit is dismissed or won by Redhat?

[ Reply to This | # ]

What i do not understand....
Authored by: NemesisNL on Thursday, July 15 2004 @ 05:21 PM EDT
I've read here several times that the carefull way the judge is aproaching SCO
is a way of avoiding appeals later on.

If the judge is so worried about SCO appealing why isn't that same worry carried
on to IBM.

Surely the judge can see that if he gives SCO to much, rediculoulsly much,
leeway he will face an IBM appeal sooner or later.

If he grants sco time for more discovery even when it is clear SCO has failed to
produce requested evidence twice already, existing code turned over by IBM would
take them 25000 years to process, they are requesting about 400 times as much in
aditional code from IBM wich would perpetuate this case for all eternity surely
IBM might want to appeal a decision against them on august 4.

There has to be an end to all the room given to SCO. I bet that if SCO wins on
august 4 the laywers will instruct their children to start producing ofspring in
a hurry because there will be work in the family buisiness for all eternity
here.

[ Reply to This | # ]

Consequences for abuse of leave to file overlength?
Authored by: Boundless on Thursday, July 15 2004 @ 06:06 PM EDT
Search on "consequences" + "overlength" came up empty,
so I guess no one has asked this.

The one overlength SCO memorandum I've so far completely
read seems to be precisely the sort of rambling tome that
courts desire to avoid with their page limit rules.

I assume that this is not the first such a thing has
happened in U.S. jurisprudence.

Apart from impairing the credibility of the pleader's
case with the court, what (if anything) is the usual
consequence of abusing the leave to file long?
- Contempt citations?
- Fines from the bench?
- Case-related sanctions?

My impression is that TSG is being verbose because they
dare not be concise, but they also may just routinely
file for leave before they even know how much they have
to say (sort of like a hypothetical frivolous litigant
that files suit before establishing solid grounds for
cause of action).

IANAL - But I object anyway.

[ Reply to This | # ]

SCO files again: Novell 31
Authored by: Anonymous on Thursday, July 15 2004 @ 07:56 PM EDT
Tuxrocks: http://sco.tuxrocks.co m/Docs/Novell/Novell-31.pdf

9 July, 2004: "Amended Complaint -- Jury trial demanded"

Look at this:

    Under "III. Factual Background" - page 4 of the *.pdf:

    "...in Amendment 2 to the Asset Purchase Agreement, Novell and SCO made clear that SCO owned all "copyrights owned by Novell as of the date of [the Asset and Purchase Agreement] required for SCO to exercise its rights with respect to the aquisition of UNIX and the Unixware technologies,"..."
Note that the quoting (bolded, here) is SCO's in the text of the filing.

What does the Amendment 2 actually say?

    "...All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies..."

How can SCO so completely and utterly:

  1. falsify;
  2. deliberately omit;
  3. plainly distort;
  4. flat out lie about
the actual content of the original document, which they give every appearance of quoting verbatim by their use of quotation marks, with impunity?

How can this happen without repercussion?

t_t_b

---
Release the missing Exhibits!

[ Reply to This | # ]

SCO 205 - The stupidest yet
Authored by: Anonymous on Thursday, July 15 2004 @ 08:15 PM EDT
SCO 205 is SCO's reply memo regarding discovery (and is incorrectly labelled on
the docket as being their reply relating to the renewed motion to compel
discovery)

Just to recap there are two near identical discovery battles going on.

Battle #1 - SCO's memo regarding discovery - this purports to follow procedure
defined on March 3rd by Magistrate Judge Wells. The sequence is
- SCO's initial memo (163)
- IBM reply (186)
- SCO's reply (205)

Battle #2 - SCO's renewed motion to comepl
- SCO's initial filing (190, 191 and 193)
- IBM's reply is not due yet
- SCO's reply is of course not due yet


SCO's 205 is incorrectly labelled on the docket as going under Battle #2.
However it is actually part of Battle #1

SCO themselves seem to have sometimes confused it themselves (more in a minute)


I won't recite all the repeated SCOpidities that we've heard before.

The new ones, include, among others:

1. They make their derivative by history theory explicit.

And even claim if none of their code is in AIX or Dynix (let alone in IBM's
Linux contributions), then they still have a contract claim against IBM's Linux
contributions, because the independently invented bits of AIX/Dynix may have
once lived in the same program as other bits of AIX/Dynix which themselves once
lived in the same program as System V.

This is an even bigger stretch on their derivative by history than any of us
could have imagined.

2. They say the contract must give them more rights than copyright, because hey
why is there a contract anyway

3. They second guess the 25,000 years they cited in their rule 56f motion. Maybe
it won't take 25,000 years, but the best way, according to SCO, is to depose IBM
employees

4. They say when IBM said in 186 that producing all the interims and hard copy
stuff would take "many weeks", "weeks" (they convienently
ignore the comments else in 186 where IBM also says "months") -- that
according to SCO must mean "weeks but less than a month"

5. They say that because IBM was able to convert AIX versions it had already
produced from tape to CD-ROMs in 3 weeks -- therefore IBM must be to produce all
the interim versions of AIX from scratch (about 400X as much information), in 3
weeks.

6. Oh yeh, and they could read the IBM tapes, knew the format, but they were
still "unusable" according to SCO

7. They even say comparing Linux and Unix is hard, because hey, they're
completely different!

8. They try to revive their trade secret claim as a contract claim (despite the
fact they can not identify any confidential or trade secret information that IBM
took, even after 2 court orders)

[this is only a partial list of the most egregious errors, as there are so many
to choose from]


THE BEST BIT OF IDIOCY...

But the best (or stupidest) part, is they TWICE confuse what IBM's 186 is a
reply to, and seem confused by SCO's own past filings.

9. In 205, SCO repeatedly say IBM didn't say anything about RCS and Dynix (as
opposed to CVMC/AIX) in IBM 186.

It is not surprising that IBM didn't say anything about RCS in IBM 186 --
because in SCO's 163 (Battle #1), which is so far the only one which IBM has
replied to - SCO never mentioned RCS!

SCO only began mentioning RCS when they initiated battle #2 - and IBM hasn't
even replied yet in battle #2.


10. In 205, SCO also suggests that IBM didn't any argument why SCO couldn't have
direct access to CVMC

Once again this is confusing Battle #1 and Battle #2.

In 163 (Battle #1), SCO never asked for access to CVMC, so of course IBM didn't
argue this

In Battle #2, SCO did ask for access to CVMC - but IBM haven't yet replied to
this.



What a bunch....

Quatermass

P.S.
They also seem to want a laptop from IBM, somewhere in there!

[ Reply to This | # ]

SCO Files Another Request to File Another Overlength Memo, This One Re Discovery
Authored by: Anonymous on Thursday, July 15 2004 @ 11:40 PM EDT
This is one thing that SCO is totally ignoring and one reason that I don't think
the judge will grant more discovery. The only code that matters is the code as
it exists today. It is totally irrelevant what the code was prior to the
current version. If it has been changed so that the code no longer contains any
of the origional Sys V then it is not infringing. This is true for both AIX and
Linux.

[ Reply to This | # ]
Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details ) 		Site layout based on Woodlands theme by Bryan Bell.
Groklaw logo by John Crowley.
News Picks logo by Ted Thompson.
Powered By GeekLog
Created this page in 0.06 seconds