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| No Rest for the Weary -- Another SCO Memo, Reply Memorandum Re Discovery |
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Thursday, July 15 2004 @ 05:58 PM EDT
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See, the problem is, SCO has 14 or 23 or a bucketful of lawyers or whatever the current number is, and it's just us chickens here, so I was sickened to hear there is another memorandum today on Pacer, overlength to boot. I can't help but wonder if the judge is starting to feel the same way. SCO has filed a Reply Memorandum Regarding Discovery. More whining about discovery. Help yourself. I see they charge IBM with more deadly sins, like "misapprehending" the purpose of discovery (like IBM's lawyers need a class in that), dictating to the court what discovery should be ordered, blocking discovery, and stonewalling. Anybody remember any of that happening? I sure don't.
What I see is that SCO for a year has been angling and angling to get the court to force IBM to hand over every version of AIX since the founding of the world, and in this document, we find out why. So far, the court has refused to order IBM to produce every version. SCO now paints IBM as stalling for not turning over what they haven't been told to produce. Here is an example, from page 5, of the crafty wording SCO uses to try to obfuscate: "With respect to Dynix/ptx, IBM makes no burden argument of any kind; with respect to AIX, after telling the Court that it would take 'many, many months' to meet the request, IBM now says that it would take only
weeks'. Almost every aspect of this discovery in this case has taken 'weeks' -- over fifty weeks have passed since SCO requested the materials, for example, and over twelve weeks have passed since the Court ordered IBM to produce certain of the documents." The first point is easily answered. Many weeks could mean months. It could even mean years, depending on context. On page 23 SCO tells the judge that "many weeks" must mean less than one month. Is that what "many weeks" means to you? Me either.
The second point is more subtle. SCO implies that IBM has taken over a year to produce what they should and still haven't done so. But the phrase "twelve weeks since the Court ordered IBM to produce certain of the documents" tells the true tale. SCO is asking for more than IBM ever was ordered to produce and then waxing indignant that IBM hasn't voluntarily turned it over. Maybe that part is for the media.
If the court orders IBM to turn it over, no doubt they will. But to act like they are miscreants for not doing what the court never asked them to do is a bit over the top. Unfortunately, the document is subtle and better in quality than usual. I assume that may be the new lawyers at work. SCO keeps mentioning that they need more code because IBM has said that they may ask for summary judgment on the contract claims. What does that have to do with the price of tea in China? It's not before the court, because it absolutely hasn't happened. What they need to address is why they certified to the court that their discovery was complete and now want to do more.
You can see that IBM's summary judgment motion has scared the pants off SCO and startled them into intense activity. It reminds me of a look I sometimes would see when, as a young girl, I used to walk into chess clubs and play older men, when they'd let me, and sometimes I'd do something they never expected someone who looked like me to know how to do, and the look in their eyes when it suddenly dawned on them that I was about to checkmate them used to give me some enjoyment. I see, so to speak, that look in SCO's eyes. IBM made a move they didn't expect, and they are sitting up and taking notice now of the full implications. Even if IBM were to lose their summary judgment, which is conceivable -- anything can happen in a courtroom, which is why you never want to be in one, if you can avoid it -- you can see the value in their bringing it. SCO has been forced to tell a bit more about what they have in mind. You'll see their contract theory very clearly in this document when they are forced to explain why they want every version of AIX and Dynix since the creation, beginning on page 12. It's all about derivatives, and it's not just System V. The contract restrictions, they claim, apply to "each successive iteration of the derivative program and not to System V alone". If they can prove that IBM "disclosed, exported, or published those derivatives", they can nail them to the wall, according to their theory and interpretation of the contract. If you remember Mr. Hatch's rungs on the ladder argument, here it is in a more sophisticated iteration. It's all about contracts, not much about copyright, and even then, it's more methods and concepts. Copyright is the smallest part of this whole burrito SCO is serving up, despite what they have told the media for so long. "Nowhere in SCO's complaint is there a Linux-based copyright claim," SCO writes. It's only evil IBM that "injected Linux copyright issues into this case through its Tenth Counterclaim." Can you imagine? I suggest everyone evaluate IBM's other alleged Deadly Sins in the light of that SCOsentence. Methinks SCO spoke to the media with forked tongue, n'est-ce pas? Also to the court, by my reckoning, since they go on to argue that because IBM only just introduced this new and foreign concept into the case, SCO hasn't had time to do discovery about copyright infringement. Now, they assert, IBM is trying to cut them off without *any* discovery on this "new" counterclaim. Like they had no time since March to do discovery, even if this fantasy or whatever word you wish to use were reality. Note also footnote 3 on page 16: "SCO's copyright claims are based on claims that IBM transferred UNIX code to India, a country where the licensing agreement prohibited its use, and that IBM continued to use and distribute UNIX after SCO had terminated the licensing agreement." Of course, they don't mention Novell waiving that purported "termination" or the echo newsletters. This entire nasty document fairly screams: "IBM. Buy us and we'll stop." However, they are a gnat to IBM, who knows what to do about gnats. SCO is like a young child in a supermarket, sitting in the cart seat and whining over and over to mom that it wants candy. Have you ever seen a mother finally cave in after repeatedly saying no, just to make the child shut up? I think they hope the judge will finally cave in and say, All right. Here's your discovery. Now take your code and leave me in peace. You'll enjoy footnote 4 on page 18 too. SCO now does some math on how long it will take them to look for infringing code without more discovery, and it adds up to 25,000 man years. Yup. Cross my heart and hope to die. I'd be interested in all you brainiacs reading pages 18 onward and seeing what you think about their technical arguments, which sound zany to me. In footnote 7, on page 20, which refers to a declaration by Chris Sontag, which is under seal, it mentions a case, Gates. No, it isn't that Gates. Here is the case, which elaborates on the abstraction-filtration-comparison test. Here is footnote 7: "The Sontag Declaration describes how such an examination of code lineage would streamline SCO's discovery efforts. Mr. Sontag provides an example of SCO's UNIX System V source code for a print error function (perror.c), illustrating accumulated modifications over time. The first version of the code appeared in 1981, and by the time the seventeenth version appeared more than ten years later, the perror.c code sequence was almost unrecognizable from the initial version. Yet a careful review of the code reveals that the seventeenth and the initial versions have the same structure, sequence, and organization -- the accepted test to show substantial similarity. See Gates, 9 F.3d at 836-839. Table I, which shows the incremental change to perror.c code over time by way of code difference plots, makes explicit what SCO contends here: access to IBM's CMVC system would greatly streamline SCO's discovery efforts. See Sontag Decl. ¶¶ 37-42." Then after telling the judge how many man years it will take to look it all over, it says it will be a snap for IBM to produce it all lickety split. Sigh. Logic has never been SCO's strong suit. No pun intended. Although, now that you mention it... SCO repeatedly argues that it needs all this discovery so it can "streamline, narrow and prioritize its searches for code and non-literal elements in Linux that originated in UNIX." If they get every version of AIX and Dynix that there ever were, how will that streamline the search? It's silly to say that, but they are trying to tell the judge that it will speed the process up and increase efficiency, because judges like to hear that. It just makes no sense, logically. Don't get me started on morality.
It's better work, technically, than we are used to from SCO -- they actually did some research -- and that makes it more interesting, but it makes me sad to see talent used this way. If my husband or my dad wrote this, I wouldn't feel proud of him.
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| Authored by: WhiteFang on Thursday, July 15 2004 @ 08:47 PM EDT |
| :-) [ Reply to This | # ]
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| Authored by: WhiteFang on Thursday, July 15 2004 @ 08:55 PM EDT |
See, the problem is, SCO has 14 or 23 or a bucketful of lawyers or
whatever the current number is, ...
Don't forget, this is the same
group complaining that they didn't have the resources to attend court _and_
assorted depositions at the same time.
My, my, my. The sheer quantity of
obfuscation and bull tends to show the lie of _that_ contention.
And for
the record:
I'd rather be a Groklaw Chicken than SCOX Lawyer. Fear my
Beak! Hear me Crow!
;-D [ Reply to This | # ]
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| Authored by: WhiteFang on Thursday, July 15 2004 @ 08:56 PM EDT |
| :-) [ Reply to This | # ]
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- OT: annoying password rules at Groklaw - Authored by: Anonymous on Thursday, July 15 2004 @ 09:05 PM EDT
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- Gregory Blepp left SCO - Authored by: Anonymous on Friday, July 16 2004 @ 10:42 AM EDT
- Article on CNN about "patent busters" - Authored by: Anonymous on Friday, July 16 2004 @ 12:20 PM EDT
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| Authored by: overshoot on Thursday, July 15 2004 @ 08:57 PM EDT |
| Here please [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 08:58 PM EDT |
Could a judge hold a party in contempt of court for making such statements if
that party is called out on such commentary? It's not like both sides are
posturing back and forth with overblown statements that contradict actual
history even as it relates to events that have transpired in court; SCOX has
been pretty much exclusive in claiming things were granted or happened or didn't
happen or were in alternate meaning since this fiasco started. I'd imagine that
at this point, the judge would be pretty tired of hearing such bull and would be
almost looking forward to holding some lawyers in jail for a couple of nights or
fining them several thousand dollars...[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 08:58 PM EDT |
I posted this previously under the last story, but I guess it's
more relevant here
Apologies for the
duplication
-----
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 | # ]
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| Authored by: WhiteFang on Thursday, July 15 2004 @ 08:58 PM EDT |
| Being organised is a good thing. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:05 PM EDT |
Here's where your legal expertise would help all us clueless folks - what's the
legal standard for initiating a lawsuit? SCO's first paragraph says "...
reasonably calculated to lead to the discovery of admissible evidence concerning
SCO's contract claims". That sounds to me like they don't have any evidence
whatsoever unless they magically find it in the other source code. I can't
imagine that vague suspicion is actually the legal standard for suing
someone...
dave[ Reply to This | # ]
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| Authored by: oldgreybeard on Thursday, July 15 2004 @ 09:08 PM EDT |
""Nowhere in SCO's complaint is there a Linux-based copyright
claim," SCO writes.'
Gee does that clear RCU and JFS? Looks like the SCOx mouthpieces have hammered
it into stone.[ Reply to This | # ]
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| Authored by: jeffo on Thursday, July 15 2004 @ 09:10 PM EDT |
SCOX could have asked IBM to query the code management system to identify all
files for which there are a series of modifications that lead from SYS V to the
linux contributions. In clearcase that's an hour's job at most. Then they
could ask for the diffs on those files.
Of course, this might too quickly demonstrate that there was no code that passed
through. (Perhaps a curly brace made it to linux unmodified.)
[ Reply to This | # ]
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| Authored by: Tsu Dho Nimh on Thursday, July 15 2004 @ 09:10 PM EDT |
This being SCO's "Reply Memorandum Regarding Discovery", and round
three of this particular skirmish, IBM doesn't get to rebut this, except in oral
arguments.
Maybe that's why they were really piling on the verbiage. [ Reply to This | # ]
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| Authored by: Jude on Thursday, July 15 2004 @ 09:13 PM EDT |
SCO keeps whining that they need more discovery because of IBM's counterclaim
#10. This makes no sense.
IBM's contributions are only a small part of Linux. There's a ton of other code
in there that didn't come from IBM, and that no amount of examining ancient AIX
source code is going help SCO analyze.
By explaining so carefully to the court how difficult it is to find SysV
copyright infringment in Linux, SCO has pretty much admitted that they have *no*
evidence that any of the non-IBM code in Linux is infringing. Even with all of
SCO's employees on the job, they'd need almost 100 years to complete the search
SCO said would be needed. SCO could not possibly have gotten much of this done
between the time Darl became CEO and the time SCO filed suit against IBM.
By SCO's own words to the court, they admit they have no evidence.
All that's left is for IBM to sort out the issue with their own contributions.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:14 PM EDT |
"...Maybe that part is for the media..."
Actually I have little
doubt that if we're having one hell of a time slogging through all this, knowing
as much as we individualy and collectively know, there is almost no one in the
media who's going to read this stuff, even if just to suck out a few juicy
sound-bites.
Small consolation...
t_t_b ---
Release the missing
Exhibits! [ Reply to This | # ]
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- The media - Authored by: Anonymous on Thursday, July 15 2004 @ 09:27 PM EDT
- Aimed at PJ? - Authored by: Anonymous on Friday, July 16 2004 @ 04:45 AM EDT
- Aimed at PJ? - Authored by: djbobo on Friday, July 16 2004 @ 05:51 AM EDT
- Aimed at PJ? - Authored by: Anonymous on Friday, July 16 2004 @ 11:29 PM EDT
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| Authored by: dkpatrick on Thursday, July 15 2004 @ 09:28 PM EDT |
for this to make any sense.
1. SCO has the copyrights (otherwise they can't prosecute at all since their
rights wouldn't have been violated)
2. That a work, even though in the end it is unrecognizable from the original
version, can still be viewed as some sort of infringement if there's
demonstrable evolution from one form to the next.
I would hope that the judge says "Not acceptable reasoning, not within the
law. YOU brought the complaint, YOU tell me what areas of the code are in
question."
---
"Keep your friends close but your enemies closer!" -- Sun Tzu[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:37 PM EDT |
Scox will keep on and on until the judge finally gives in. It works everytime.
It doesn't matter how insane or unfair it is. The judge always gives scox about
half of what scox for - which is exactly what scox wants.
Scox knows how to play this judge like a tune.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:38 PM EDT |
Well, last year it was a press release every Monday. Now, I guess it's
filing court memorandums instead.
The pupose is the same, though. Public posturing. SCO is always
talking to another audience than the one at hand.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:38 PM EDT |
TSG: "Nowhere in SCO's complaint is there a Linux-based copyright
claim"
Also, their certified complete discovery production does not include any
evidence of copyright infingement within Linux.
IANAL. How in the world can every linux on the planet be violating TSG's
"IP"? On what can they possibly base this claim.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:42 PM EDT |
I see the fact that IBM first says months and now says weeks, because they seem
to maybe have been working on it. Months ago when SCOX first started blathering
about it, I'm sure they said sure lets give them all the rope they need, now
that's it's months later and they've been working on it sure it's only gonna
take weeks to finish it. But hey that's just my opinion.
And I can't believe they would use an example of a function that over the course
of many iterations, even though it's morphed so much it's still theirs based on
the initial version. That's bogus, it's still copyrighted because each version
that was released as part of a copyrighted product was copyrighted.
Let take the concept of the perror function (which I can not believe has really
gone through 17 iterations, it's not a function that would really need to change
that much, but I degress). If the initial version was copyrighted and then goes
through 17 iterations and each iteration the copyright isn't applied then the
newly added material isn't copyrighted.
That means that any modifications to the code once it is no longer SysV is just
that, no longer SysV. If they can't find SysV in Linux, then no matter how much
diving they do into AIX and watching the code morph into something else then
possibly finding it in Linux works. If the code morphed into something else,
then it's just that something else.
Arrghhh What does an aneurysm feel like?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:46 PM EDT |
| ... this one. This document
is mere pounding on the
table, and she'd cut such antics short in a New York minute. IBM can even apply for the change
of venue online. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 09:53 PM EDT |
Does IBM get one last reply to all of SCO's nonsense?
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 10:04 PM EDT |
Is there someone who could find the perror.c code in another distribution of
Unix, ie. BSDi or other public domain version, and show that is is the same or
close to the one in SV? I don't have the skills but it sure would be nice to
punch yet another hole in their arguments.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 10:08 PM EDT |
They're complaining about media format? SCO cannot read a DDS tape? Who in
the world would buy software from a company that cannot read a standard tape
format.
And this is coming from a company that provided discovery materials
as a set of scanned hardcopy pages on a CD. I think I need to vomit. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 10:13 PM EDT |
The requested materials may contain admissions of contract
liability.
The materials "may" also contain playboy books, an old
newspaper, or a fast food sandwitch wrapper. This sounds like " Let us look
through it all , It has to be there someplace"[ Reply to This | # ]
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| Authored by: k12linux on Thursday, July 15 2004 @ 10:22 PM EDT |
I just realized what SCO is actually up to. They want to say that because IBM
put code in Linux in violation of it's contact, the code really belongs to SCO.
And if the code belongs to them, then IBM never had the right to license the
code under the GPL. And since the code isn't in Linux due to a valid license,
it is copyright violation. And ta-da... in SCO land, Linux is infringing just
like they have been telling everyone it was from the beginning.
I can't imagine a way to mutate the US copyright laws in a way that this could
be possible, but then again I'm not a SCOX employee. Instead, the worst possible
outcome I can imagine happening would be if the court found that some IBM
contributions where indeed a violation of some clause in their contract with
SCO.
In that case, it hardly transfers rights of IBM-written code into SCO's hands.
I don't think restitution on IBM's part could be more than a fine and requiring
them to remove the code. I am fairly confident that IBM could remove the code
and have it replaced in a clean-room fassion. And that would be it. They can't
void IBMs contract and stop AIX since Novell retained the right overrule SCO and
said, "NO" a long time ago.
In the end though, I've never seen any contract that says SCO retains rights to
every bit of code that ever touches sysV code. So, just how does code which
doesn't even resemble sysV code become something IBM has no ownership of.
---
- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux[ Reply to This | # ]
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| Authored by: RSC on Thursday, July 15 2004 @ 10:23 PM EDT |
As I am not overly familiar with the US legal system, can someone tell me if the
brat kid repetition ploy a very sucsessful on in the US courts?
As a professional that has worked in both private and govt. bodies I would have
to say that kind of ploy is usually a rahter good one.
I just find it hard to believe that it would be taken in a cout of law;)
RSC.
---
----
An Australian who IS interested.[ Reply to This | # ]
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- Yup... - Authored by: Anonymous on Thursday, July 15 2004 @ 11:32 PM EDT
- Yup... - Authored by: Anonymous on Friday, July 16 2004 @ 09:06 AM EDT
- Yup... - Authored by: Anonymous on Friday, July 16 2004 @ 10:56 AM EDT
- Judges and brat kids. - Authored by: Anonymous on Friday, July 16 2004 @ 09:08 AM EDT
- Repetition is often necessary - Authored by: AllParadox on Friday, July 16 2004 @ 11:23 AM EDT
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| Authored by: blacklight on Thursday, July 15 2004 @ 10:23 PM EDT |
"More whining about discovery. Help yourself. I see they charge IBM will
more deadly sins, like "misapprehending" the purpose of discovery
(like IBM's lawyers need a class in that), dictating to the court what discovery
should be ordered, blocking discovery, and stonewalling. Anybody remember any of
that happening? I sure don't."
In terms of discovery, SCOG wants the sun, the moon and the stars and IBM won't
give: this is why SCOG is portraying IBM as blocking discovery, stonewalling and
dictating to the court what discovery should be ordered. In my opinion, this
whole discovery episode is a farce because Judge Wells made the mistake of not
making sure that SCOG is in complete compliance with its dicovery obligations
before IBM is ordered to do anything. It just is ridiculous that SCOG should be
allowed to get 242 versions of Dynix and AIX from IBM based on little more than
a bunch of allegations. Whatever disruptions and turmoil SCOG is creating in
that Utah courtroom, Judge Wells brought them upon herself. And the fact is,
Judge Wells has yet to make a ruling on whether SCOG is in compliance with her
second court order.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 10:25 PM EDT |
There is a fundimental problem with "Intellectual Property Law" [sic.
on myself 8-)] especially as it relates to software. At a fundamental level
programs and software, which are "language skills" even unto their
most central terminology, were mystically requalified within the legal mind as
an analogue of manufacturing.
That is, the statement "computer science is science" is misleading and
incorrect at several levels. Oh there are people who would disagree, but (IMHO
8-) they'd be wrong.
There are mathematical roots, and technological roots, and "provable"
sections of software and algorythms, but the magic word "science"
doesn't really apply. Science is a *method* of investigation and persuit. When
was the last time an IT professional, writing a database (etc.) proposed a
hypothesis and then attacked it in the persuit of the construction of that
database.
[Riding the above series of assertions all the way through to tautology is
tedious and I'll skip it. But favor me with a touch of suspended disbelief for
a moment and pretend I completed the exercise.]
Much of the ongoing strife happening these days with I.P. Law comes from
"mistaking the VCR Manual for the VCR Itself." That is, people
mistake an implementation, in software, of an exterior concept based in any
number of technologies and disciplines for that exterior concept itself.
For instance, the Amazon-dot-com "One Click Shopping" patent is
exactly the same thing as going into a corner shop with whom you have an
existing relationship, circa 1840 AD (or 500BC for that matter), picking up an
item, and saying "put it on my tab" and walking out. The fact that
"established relationship" "pick item" and speaking have
been translated into computer-concepts by a browser and server and software in
general, doesn't make that software the same thing as the concept.
This is the core of the repeated complaint in some circles that people are
"just adding 'on a computer' to various existing tasks, and then getting a
patent on it."
The fact of the matter is that human leanring is based on the "monkey see,
monkey do" principle. We learned to teach and describe tasks. We learned
to write instructions. Then, with the advent of computers and the net and so on,
we learned further to translate these instructions from "human
instructions" to "machine instructions." But somewhere along the
line it got all-together too flashy for some folks to follow along with this
very basic principle.
So we have people patenting (etc) in software things that are not patentable in
fact. The argument becomes "while I cannot, as a matter of law, patent a
mathematical algorythm, I can, for whatever, patent expressing that particular
piece of math if it is executing on a computer.
So why bring all of this up here?
The SCO aproach to derritive work pivots entirely on this misaprehension. They
started with "trade secrets" for which they had no moral or legal
grounds, and have since followed on with "methods, sequences, and
structures" as if the sequence "open file, read file, close file"
were some deeper mistery task wholly unlike what you do when you persue the a
file stored in the big grey metal cabinet in your 1920's era insurance company.
(or your basement, or a card catalog in a public library, or ... well you get
the point.)
So their argument, at it core, is that while they no longer have a trade secret
claim, they may be able to manufacture an "unbroken chain of dirty
hands" (e.g. a fruit descended of fruit from a poison tree kind of
thing.).
They have no reason to beleive that this is impossible. We have been selling
off lesser concepts at far greater prices.
They are trying to manufacture "George Washington's Axe". (you know:
"This is the Axe that George Washington used to cut down the cherry tree.
In 1830 it was discovered that termites had eaten the handle away, so it was
replaced. In 1908 an accidental saturation with brine caused the iron head to
rust away, and it was replaced. But this *is* the very Axe he used.)
So, SCO's Axe is thus:
-- The UNIX People at AT&T implemented a bunch of software that expressed
various concepts, but they were "close enough to the first people to do
that" for these particular concepts as to grant them at that earily date,
the kind of ownership that modern-day patents (like Amazon above) grant over the
functioning of ideas in computers.
-- At some point in time, some non-trivial set of these spesific implementations
grew to "own" these *types* of implementations.
-- The original copyright has "naturally expanded" to a domain of
ownership-of-concept. (e.g. I wrote a book about a spy, so everybody who ever
sees that book and then writes any kind of story about spying, has dirty
hands.)
-- IBM may have used the original UNIX files as a sort-of scaffold around which
they built some new parts, then used those new-parts to replace the scaffold.
(That is, IBM then did their own George Washington's Axe transaction around some
particular UNIX System 3/7/V source.)
By requesting every intermediate version of AIX (etc) they are hoping to find a
bit of handle or head in the archive that was used to prop up oder development.
Then, like the axe, there would (in their theory) be an essential quality to the
result that echos the original code all without the original code still existing
in the result at all.
But you see, once you ponder the inherent limits of Copyright, and if you can
escape the I.P. mess that has been made of late by the courts and the USPTO
where the software is being systematically mistaken for the concepts expressed,
the "descendent of the poison fruit" argument falls clearly apart.
I'd suggest scraping up a copy of "copyrights and copywrongs" off the
net (search the above phrase along with Thomas Jefferson on google) for a good
consise summary of why Copyright explicitly doesn't (or at least wasn't supposed
to) create an ownership interest in the concepts being expressed by the
copyrighted work.
Add to that the basic human understanding that once you see how anything is
done, you will be influenced by that understanding; and therefore _why_ the
means to provide that understanding (books, music, software) must not and can
not, a priori, be construed to constrain your understanding and re-use of the
expressed ideas.[ Reply to This | # ]
|
- Aren't you assuming a bit much - Authored by: Anonymous on Thursday, July 15 2004 @ 11:04 PM EDT
- computer science - Authored by: Anonymous on Thursday, July 15 2004 @ 11:52 PM EDT
- computer science - Authored by: Anonymous on Friday, July 16 2004 @ 10:52 AM EDT
- IT != Computer Science - Authored by: Anonymous on Friday, July 16 2004 @ 02:16 AM EDT
- Re science - Authored by: Anonymous on Friday, July 16 2004 @ 06:25 AM EDT
- Re science - Authored by: Anonymous on Friday, July 16 2004 @ 10:23 AM EDT
- Computer science - Authored by: MathFox on Friday, July 16 2004 @ 06:49 AM EDT
- The Monkey-See Monkey-Do effect - Authored by: minkwe on Friday, July 16 2004 @ 10:53 AM EDT
- Confidentiality and trade secrets. - Authored by: Anonymous on Friday, July 16 2004 @ 07:11 PM EDT
- You have a point, but . . . - Authored by: Anonymous on Friday, July 16 2004 @ 07:34 PM EDT
- My Mistake - Authored by: BitOBear on Friday, July 16 2004 @ 08:21 PM EDT
| |
| Authored by: oldgreybeard on Thursday, July 15 2004 @ 10:25 PM EDT |
Actually it is less than that by more than 1000 years. But that is close enough
for guvment work and lawyers.
Now, can it be done faster yes.
Normalize the items to be checked (this is more than just whitespace issues
folks) there are 7366 files ending in .c in the 2.6.7 released version of Linux,
I don't know how many there are in Unix but I could check out one of the pd
archives made availible by Caldera (maybe even without having vaild copyright).
You can figure from the crud filed by SCOX that the Unix side is less than that
but I'll say it is the same number 7366 or about 12.63 times the size of
something I've already done similarity work on would take 12.63^2 or 160 times
the 5 minutes or 800 minutes on a 2.5GHz Xeon engine to produce a table showing
a precentage relationship table for the 54,250,590 possible relations.
Manual examination of the top 1% of them or 542,505 should be enough to find a
possible copying incident if any exist. At 1 per hour it would take 542,505 /
1875 or 289.34 man years. Now would that satisfy finding infingement I don't
think so.
The relationship finding is O(n*m) n being the item count in database one and m
being the item count in database two.
I am assuming that normalization is trivial in terms of time. [ Reply to This | # ]
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| Authored by: tangomike on Thursday, July 15 2004 @ 10:30 PM EDT |
This is just throwing anything and everything they can think of at IBM and the
court. It's the core dump of grid lawyering.
Let's pitch in here folks. I've a lot of faith in the IBM team, but this is such
a pile of legal vomit that I'm sure we can help out.
---
To The SCO Group - show us your cows.
[ Reply to This | # ]
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| Authored by: jldill22 on Thursday, July 15 2004 @ 10:31 PM EDT |
Can someone who knows US copyright law, please answer whether non-literal
copying of someone elses copywritten code (I assume source code) can ever
constitute a breach of copyright and if so, in what circumstances.
"Every man and beast in the residence was asleep on Christmas eve"
copies the first two lines of the well known Christmas poem. (I know its a copy
since I composed it as such.) However, I have difficulty believing it is a
violation of any copyright in the poem.[ Reply to This | # ]
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| Authored by: blacklight on Thursday, July 15 2004 @ 10:33 PM EDT |
"You'll enjoy footnote 4 on page 18 too. SCO now does some math on how long
it will take them to look for infringing code without more discovery, and it
adds up to 25,000 man years"
So basically, the "overwhelming evidence" with which SCOG first went
to court is little more than a tissue of lies. And SCOG cleared HP and Sun of IP
violations, basically because whatever SOG says goes.[ Reply to This | # ]
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| Authored by: moogy on Thursday, July 15 2004 @ 10:34 PM EDT |
"'We believe this unchecked process has allowed SCO code to be entered into
Linux,' McBride said." July 1,
2004 SD Times
and so Darl and Co. just keep on NOT saying these things.
Do they ever learn from their mistakes?
"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 | # ]
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| Authored by: cffk on Thursday, July 15 2004 @ 10:34 PM EDT |
Foonote 9 on p 21 quotes Magistrate Judge Boyce on "cleaning the Aegean
stables". Either SCO or Boyce needs to brush up on their Greek mythology.
Hercules cleaned the "Augean stables" by diverting rivers into them. The
"Aegean" is, of course, the name of a sea.[ Reply to This | # ]
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| Authored by: gvc on Thursday, July 15 2004 @ 10:36 PM EDT |
In U.S. criminal cases, "probable cause" is required in the
evidence-gathering process. Is there no equivalent in civil cases? If not, why
not?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 11:31 PM EDT |
The APA
(Asset
Purchase Agreement) when SCO purchased Unix from Novell states in paragraph
4.16
(b):
"... at Seller's sole discretion and direction, Buyer
shall amend,
supplement, modify or waive any rights under, or shall assign
any
rights to, any SVRX License to the extent so
directed in any manner or respect
by Seller. In the event that Buyer
shall fail to take any such action concerning
the SVRX Licenses as
required herein, Seller shall be authorized, and hereby is
granted, the
rights to take any action on Buyer's own behalf.
...
This section was, I think, the section that Novell used
to nullify SCO's
"cancellation" of IBM's license. But, it seems to me, this
section of the
APA gives Novell much more power than that, and I remain at a
loss
as to why Novell isn't excercising that power. In particular, why
isn't
Novell using this section to completely nullify the IBM lawsuit,
by
amending whatever part of the IBM license that SCO thinks gives
it the right
to sue. Doesn't this section give Novell that power?
Can someone explain
to me why this section of the contract
isn't used and pursued more agressively
to nullify any contract dispute
that can possibly exist between SCO and
IBM.
Wally Bass
[ Reply to This | # ]
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| Authored by: kawabago on Thursday, July 15 2004 @ 11:34 PM EDT |
The court has already told SCO it doesn't agree with SCO's position as to what
is derivative code. The court said outright that SCO had to show direct line by
line copying, anything less was not infringement. I doubt the judge will allow
this discovery because the court has already said it wouldn't.
[ Reply to This | # ]
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| Authored by: maco on Thursday, July 15 2004 @ 11:41 PM EDT |
Every C program I've written in the last 25 years was derived from a
working program, usually "hello world". I'm sure if you checked the CVS you
could see the transformation at each step.
This is millions of lines of
code!
- Should I ask them for permission to use it?
- Should I
begin emailing it to them?
- I hope they will sell me an IP licence for
only $699 per processer so I can use it!
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, July 15 2004 @ 11:58 PM EDT |
To hide the fact TSG has NO EVIDENCE, Linux is free of infringing code,
TSG has NO COPYRIGHTS after all, TSG has been lying to the press, TSG
lawyers probably perjured themselves among the five cases, and TSG is
going to lose big...
They boldly claim that the evidence they seek will retroactively make all
the previous reprehensible acts right.
McBride is going to get 4 to 9 million before the show folds. The lawyers
are getting paid by the hour plus hold their own lottery tickets.
People, they are not going away soon but they are eventually going away
very rich. Lets see if they hold a get out of jail free card.[ Reply to This | # ]
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| Authored by: Totosplatz on Friday, July 16 2004 @ 12:03 AM EDT |
It seems to me that IBM's original contract with AT&T specifically waived
any claim by AT&T on any code written by IBM. So why is there this continued
"derivative-by-contract" theory?
And there is the clarification in the
AT&T Newsletter making the same waiver by AT&T on behalf of UNIX
licensees.
And The Open Group and The IEEE actively maintain the POSIX
standards in order to encourage correct work-alike behavior for various
UNIX-work-alike OSes. Correct work-alike behavior is not evidence of being a
copyright-violating derivative. Never mind the fact that the fact that Linux is
a UNIX work-alike is the reason why TSCOG initiated this lawsuit against
IBM - that was their "evidence."
I wanna see TSCOG lay claim
in court to ownership of the C++ language! That should be a hoot! Well
maybe I don't want to watch any more TSCOG nonsense. ---
All the best
to one and all. [ Reply to This | # ]
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| Authored by: codswallop on Friday, July 16 2004 @ 12:39 AM EDT |
While all the attention is on SCO's code comparison efforts, what about IBM's?
It's inconceivable they don't have a major code comparison project. They should
be able to use information derived from it to blow holes in SCO's case.
1) They can redo the Berkeley analysis to see how much System V code has valid
copyrights.
2) They can determine the history of all the Linux code.
3) They can factor out all the Linux 2.4 code that SCO has stated doesn't
infringe.
4) They can search for SCO violations of other people's copyrights.
One result is the SCO product isn't 14,000 * 14,000. It's (14,000 - public
domain and other peoples copyright) * (14,000 - everything that was in version
2.4 and everything with an ironclad non-SCO origin). I'd guess 3000*4000 at
worst, and thats with a brain-dead comparison. That's less than 7% of SCO's
estimate.
---
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.[ Reply to This | # ]
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| Authored by: Brian S. on Friday, July 16 2004 @ 12:54 AM EDT |
For how much longer can this go on?
There are so many demonstrable examples of:
Contradictions.
Lies.
Changes of story.
Duplicitous Language.
Wrong uses of law.
Have you ever tried to catch an eel with your hands? It's nearly impossible
(only a small one in a river when I was a kid).
Seriously, SCOG seem in such a corner, they must be dealt with soon.
Brian S.[ Reply to This | # ]
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| Authored by: dodger on Friday, July 16 2004 @ 01:10 AM EDT |
SCO: So judge, here we start our long travels down the lineage of Sys V. In this
first picture of 'memory management' we see the routine 'malloc'. Now this is
very technical, so we'll summarize for those of you who can't understand these
concepts: malloc stands for 'memory allocate'. The routine here asks the
operating system for memory. (next slide).
That was from 14 June 1986.
Now in this slide from 1998, notice that malloc has been changed to 'alloc'.
How many letters in the original routine name? 7. 7 is the number of 'shared'
letters. Count them. How many in the new routine? 6. 'alloc' stands for
allocate. 'malloc' stands for memory allocate.
Note please that we are comparing code from 1998 and 1986. Twelve years
difference. One letter difference. What does that tell you? Are you thinking
what I am thinking?
Next slide.
Here is the linux code for memory allocate in 2004:
kmalloc(sizeof(struct ....)
Note that they are now using 'kmalloc'. We respectfully ask the court, where did
that come from? How many letters have been changed since the 1986 version? 2.
Two.
As a side complaint, let me draw your attention to the 'sizeof' and 'struct'
inside the parenthesis of kmalloc (which is only 2 letters different from our
code. There are 276 instances of 'sizeof' in the current code. In ours from
1986, 167. There are 1232 instances of 'struct' in 2004. In ours from 1986,
895.
What does that tell you? The ratios are the SAME! Sure things changed over time.
But the basic material is the same. If these ratios stay the same, it
demonstrates that the basic underpinnings of AIX and Linux are Sys V.
IBM: May we take the stand your honor.
Judge: Yes.
IBM: Here is a copy of the 1882 Sears & Roebuck catalogue. We counted 10,785
uses of the word 'the', 12692 uses of the word 'of', and 8,172 uses of the word
'a'.
Here is the source code to System V from 1986: 5,768 uses of 'the', 6,862 uses
of the word 'of' and 7,201 uses of the world 'of'. Our point is that the
english language is so constructed that in large documents, these words are used
in the same 'mix' of frequency.
As to the arguement based on alloc, malloc, and kmalloc, this was all published
and available in defining the interfaces to Unix and is considered to be NOT
part of the intellectual property of Unix Sys V. (see also, BSD vs AT&T).
Judge: I have reached a judgement on this matter. Naturally in a complicated
case of this kind, where we are not talking about truckloads of code, but rather
the subtleties of a few letters there, and the stylistic mix of prepositions
there, it was difficult to not ignore SCO's compelling arguments.
Let this judgement be a milestone in the history of our fair land: I hereby
order SCO to drop their claims on IBM. And I hereby order IBM to drop their
counterclaims on SCO. I award the IP property ownership to Sears & Roebuck.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 16 2004 @ 01:16 AM EDT |
| I'm going to repost this here where the action is (for the moment :-/ ) because
this is not just an example of SCO-speak, but a clear and blatant
misrepresentation of the facts, within quotation marks as used by TSCOG
in the filing Novell-31 --
"Amended Complaint by
The SCO Group; jury demand (kvs) [Entry date 07/12/04] (07/09/2004)"
At
issue here is the wording of the "Asset Purchase Agreement" between the Santa
Cruz Operation and Novell, circa September 19, 1995, and later amended.
The
original wording, at "Schedule 1.1(b) Excluded Assets (Page 1 of 2)"
Section V, Subsection A:
"V. Intellectual Property:
A. All
copyrights and trademarks, except for the trademarks UNIX and
UnixWare."
And, the wording as modified by "AMENDMENT No. 2 TO THE
ASSET PURCHASE AGREEMENT" between the Santa Cruz Operation and Novell, circa the
16th day of October, 1996.
"A. With respect to Schedule 1.1(b) of the
Agreement, titled "Excluded Assets", Section V, Subsection A shall be revised to
read:
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..."
And now, the wording in TSCOG's "Amended Complaint by
The SCO Group; jury demand (kvs) [Entry date 07/12/04] (07/09/2004)" -- page 4
in the pdf.
Notice the placement of the quotation marks, by TSCOG, bolded
here.
"...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 Purchase Agreement] required for SCO to exercise its rights with
respect to the aquisition of UNIX and the Unixware
technologies," ..."
What are they quoting? What is the
usage of quotation marks intended to imply? What would any reasonable person
conclude by the usage of the quotation marks as TSCOG has done?
I maintain
that any reasonable person would interpret the presence of quotation marks to
mean that TSCOG is directly quoting, verbatim, the text of the amended Asset
and Purchase agreement.
In fact, TSCOG is doing nothing of the
sort.
In fact, what are they quoting? Neither the original APA, nor the
Amendment, verbatim, although they sort of got some of it.
There is no
elipsis ( ... ) to denote a phrase or passage is missing.
Whatever
happened to the phrase "...except for the copyrights and
trademarks..."?
This is a pure, simple, utter misrepresentation of
actual fact, a lie, a fraud.
As I asked originally, how can TSCOG so
blatantly and clearly misrepresent fact, without
repercussion?
t_t_b
---
Release the missing Exhibits! [ Reply to This | # ]
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| Authored by: titancbl on Friday, July 16 2004 @ 01:17 AM EDT |
SCO has been on a fishing expedition from the very beginning... I think
IBM
should just write a one sentence memo referencing this article as the only
exhibit and submit it to the court...
"So as we move into discovery
this will be very nice for us, because now
we get to go in and talk to all
their people, their customers. We get to really
shake things up and find out
what really is going on over there. Now, by
going into pre-discovery, we have
strong enough claims. We'd be fine to go
to court just on what we have before
discovery."
"We have other rights under the contract that we are looking
at. For
example, we can audit IBM customers. SCO has audit rights on its
customers.
The reality is that we are going into discovery right now and that
might be the
vehicle to be able to investigate what we need there
anyway."
"Those guys know what is going to come out in discovery, and
you hear a
lot of rumours on the street that they are going to buy us out.
Well, I bet
that's exactly what they want to do. The last thing they want to
hear is the
testimony that is going to come out."
"The way IBM is
responding is very interesting. They haven't filed for an
injunction; they
haven't filed for the summary judgement enforcement to be
dismissed...When you
have what people would call nuisance cases then you
usually go in and try and
knock those out with a summary judgement motion,
or something to cause them to
be dismissed. IBM has actually done none of
that."
I think Darl did not
quite understand the process and limitiations of
discovery. This whole 'we are
going to be able to walk right into IBM and
make them show us anything and
everything, bug their offices, phones, and
confernce rooms - there is not a
thing we will not have access to - they are
going to have to document, catalog,
and hand over every single thought or
idea they ever had related to linux -
their wife's bra sizes - EVERYTHING!
' just is not going to
happen...
Ha, but this is my favorite part of the
interview:
"There are other options we are looking at that we haven't
gone down the
road on yet. But for now it's playing the legal
path."
What are those other paths are there Darl? Ha. Beat it out
them? Give
me a break - I think it is time for you to pack up your mickey
mouse
operation, go home, and pray that you do not end up in
prison.
http://www.vnunet.com/news/1141808[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 16 2004 @ 01:21 AM EDT |
The code for perror() is so amazlingly simple and completely functional that I
suspect that there is little structure or creativity to be copyrighted -- pretty
much any variation that is not an exact copy would be ok since 99% of the code
_has_ to be the way it is unless you want to intentionally write ugly bloated
code.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 16 2004 @ 03:09 AM EDT |
SCO is raising the stake by stating that discovery the way they want is
"critical" for them. This might sway the judge to give in which is
reasonable if a party makes it that important. But it has a bite: it has to turn
up something really strong because of the label "critical". If it
doesnt, the judge will rule in favour of, in this case, IBM, because all the
weak arguments didn't make it critical.[ Reply to This | # ]
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| Authored by: urzumph on Friday, July 16 2004 @ 03:26 AM EDT |
What the hell is with the 25000 years quote?
99.9% of the code comparison they are suggesting is apples to oranges (they are
comparing all code to all other code, such as memory management code to network
device drivers) and thus it is wasteful for them to do anything other than a
cursory check with a script. Seeing as how they worked on both the Linux and
Unix kernel for years, they should be able to get their Linux guys together with
their Unix guys to get the same code side by side. This simplifies it down to
~60000 'pages', and at 1 page per minute, that's 1000 hours. With say... 20
people, it could easily be done in a couple of weeks
Secondly, what does pages have to do with anything? I don't think I have ever
seen that as a unit of mesurement with respect to computer code before.[ Reply to This | # ]
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| Authored by: sander123 on Friday, July 16 2004 @ 03:35 AM EDT |
| PJ wrote:
SCO keeps mentioning that they need more code because
IBM has said that they may ask for summary judgment on the contract claims. What
does that have to do with the price of tea in China?
hehe. That
sounds more and more like the
Chewbacca defense
;-)
Sander
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 16 2004 @ 03:42 AM EDT |
It reminds me of a look I sometimes would see when, as a young
girl, I used to walk into chess clubs and play older men, when they'd let me,
and sometimes I'd do something they never expected someone who looked like me to
know how to do, and the look in their eyes when it suddenly dawned on them that
I was about to checkmate them used to give me some
enjoyment.
Without meaning to rain on your parade. I'm an
older player in a chess club and I see a regular stream of young kids - girls
and boys - who want to play a game. They're naturally interested in what the
elders are doing and they want to join in. It's an unspoken rule that we let
these children win their games. It's an easy way to boost their confidence and
grow their interest in chess.
I'm not saying you're a bad player but unless
you walked into an idiot's class it's very unlikely that you'd beat an
experienced player when you were a child. More likely they were letting you win
and the look you saw was the amusement in seeing your delighted face, once you
realised you were going to win. Only the most immature player would try and beat
a child at chess! [ Reply to This | # ]
|
- That Look is called Amusement - Authored by: Greebo on Friday, July 16 2004 @ 03:51 AM EDT
- That Look is called Amusement - Authored by: Anonymous on Friday, July 16 2004 @ 05:07 AM EDT
- Labelling as a troll - Authored by: maroberts on Friday, July 16 2004 @ 05:28 AM EDT
- That Look is called Amusement - Authored by: Anonymous on Friday, July 16 2004 @ 05:28 AM EDT
- That Look is called Amusement - Authored by: brenda banks on Friday, July 16 2004 @ 07:07 AM EDT
- Yes, you are a troll - Authored by: Anonymous on Friday, July 16 2004 @ 08:31 AM EDT
- That Look is called Amusement - Authored by: pooky on Friday, July 16 2004 @ 09:45 AM EDT
- That Look is called Amusement - Authored by: Anonymous on Friday, July 16 2004 @ 10:16 AM EDT
- That Look is called Amusement - Authored by: Anonymous on Friday, July 16 2004 @ 12:34 PM EDT
- Good gawd - Authored by: Anonymous on Friday, July 16 2004 @ 03:22 PM EDT
- A picture anology - Authored by: Basset## on Friday, July 16 2004 @ 10:31 PM EDT
- Hikaru no Go - Authored by: Anonymous on Friday, July 16 2004 @ 09:22 AM EDT
- To avoid further argument.. - Authored by: DrStupid on Friday, July 16 2004 @ 10:22 AM EDT
- That Look is called Troll-smirk - Authored by: Anonymous on Friday, July 16 2004 @ 10:42 AM EDT
- Attn PJ: this whole section is just a Troll - Authored by: Anonymous on Friday, July 16 2004 @ 11:08 AM EDT
- That Look is called Amusement - Authored by: blacklight on Friday, July 16 2004 @ 09:41 PM EDT
| |
| Authored by: GLJason on Friday, July 16 2004 @ 04:16 AM EDT |
I think SCOX has finally stepped up and actually started trying. They are
clarifying what their cases are about at least. Before, it was like
this:
- IBM is about them putting SCOX code into Linux and thus hurting
us
- RedHat is about the same thing as #1, therefore it should be
stayed
- AutoZone is about the same things as #1, but at a different company
and it was filed before #1's counterclaims, therefore it should go first. Also
they apparently violated copyrights to the manuals to Unix SYSV and
pretty much every part of the operating system. How they violated the copyright
is to be determined by discovery.
- DC is about them not sending us the
required certification
- Novell is about Novell recklessly saying they owned
the copyrights when the APA (as ammended) clearly transferred all
copyrights
Now it is like this:
- IBM is about them giving
their code to Linux. They developed the code, but they did so with the aid of
our software. Giving it to Linux is against the contract they signed, they
never would have developed that without our help.
- RedHat should be stayed
because we dont' want to deal with it? I really don't know their stance on
RedHat now that they say IBM and all others don't have anything to do with
it...
- AutoZone isn't about the manuals they listed or any of the things they
listed in the complaint, EXCEPT the libraries from UnixWare that they believe
AutoZone may have used with Linux since they migrated applications from
UnixWare to Linux.
- DC isn't about them not replying, it's about the fact
that they didn't reply to a company they have never had a relationship meaning
they must have something to hide.
- Novell is same as before, but we're
specifying what our damages are (even though the Judge pretty much told them
they don't have clear title and therefore I don't know how they could get money
for slander of title...)
[ Reply to This | # ]
|
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| Authored by: ghost on Friday, July 16 2004 @ 04:46 AM EDT |
Sigh...
If you take a fork, and modify it into a spoon, at what point does the fork
become a spoon, and is no longer recognised as a fork? Is the spoon therefore a
derivative of the fork?
An analogy, but... this applies to what i am writing below.
Someone, has definetily called in the sanitybusters..
Anyway.
A tru fact is this:
SCO actually already have these incremental changes.
I find it very hard to believe that every single function in an operating system
is rewritten from version to version, even in IBM's case.
Therefore, SCO, already has all source code for the release versions, and could
do this interdependant testing on them, pick a few groups of functions, and
follow them over time, instead of the whole kabooze.
Now, even if a function is "A" from the beginning, like a lump of
metal, and through tooling, is transformed into something else, will the
resulting "B" be a derivative of "A" in any case. didn't
think so. Question is: At what point along the line, does the chain break? When
do you have enough transformation, that substantial similarity does no longer
apply? 10%, 50% 90%?
Can something be made to look like, function like something else, without being
a derivative, even contractual?
IN SCO's case, they are effectively saying: If it smells like, looks like, or
works like Unix, it must be Unix, and therefore, we have all the rights.
Unfortunately, what SCO bought, was ONE version of Unix, and a part in a
licensing business. Not the very same thing... [ Reply to This | # ]
|
| |
| Authored by: cffk on Friday, July 16 2004 @ 04:53 AM EDT |
| The 25000 man-year estimate shows a gross misunderstanding of how
computer
algorithms.
SCO is saying that to look for matches between two piles of
code, one
with M items and the other with N items, will take O(M*N) since each
of
M needs to be compared with each of N. However a first-year algorithms
class
will show you a better way: Sort all M+N items [sorting takes
O((M+N) *
log(M+N)) steps] and then look for duplicates [another O(M+N)
steps]; so overall
the cost is O((M+N) * log(M+N)) and this is a LOT
less than O(M*N) (for large M
and N).
A similar procedure can be used when only similarities (instead of
exact
matches) are being looked for. This involves "normalizing" the
code
first.
This technique (possibly supplemented by the use of hashes)
is
commonplace. It's used for example in the code comparator that ESR
wrote
last year, http://www.catb.org/~esr/comparator/
.
[ Reply to This | # ]
|
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| Authored by: cffk on Friday, July 16 2004 @ 05:10 AM EDT |
| Footnote 10 on p 24 reveals that the "industry-standard tapes" that SCO
was
unable to read are DDS tapes. This is indeed a widely available
tape standard
and the tape drives are relatively cheap SCSI devices. (I
have one on my home
Linux system.)
It amazing that SCO (a) didn't have one or (b) go out and
purchase one
when the first tape from IBM arrived so that they didn't look like
such
klutzes.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 16 2004 @ 05:18 AM EDT |
| The "MIT and other experts" materials would ordinarily be protected as work
product, unless SCO introduce them as exhibits. However, would SCO's claims
about the difficulty of code comparison, and their earlier claims that they had
enough to go to trial even pre-discovery, be sufficient to get IBM discovery
because they have substantial need and would otherwise suffer undue hardship?
There's a relevant article here. In
particular, could IBM argue that the efficient administration of justice
requires disclosure? [ Reply to This | # ]
|
| |
| Authored by: garbage on Friday, July 16 2004 @ 05:45 AM EDT |
Just how much research is a typical American judge going to do on this & all
the other rubbish being spwed forth by SCOX?
Are they just scanning for obvious errors of law or conradictions or do they go
through it with a fine toothed comb?
I have this ominous feeling that SCOX will succeed in burying the judge in
manure the way they have been highly sucessfull in prolonging this case &
avoiding penalty for failing to comply with 2 court orders.
People keep telling me not to worry but the longer this farce goes on the less
certain I am of justice ever being done.
[ Reply to This | # ]
|
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| Authored by: tredman on Friday, July 16 2004 @ 08:20 AM EDT |
Here's a question. Everybody fire up your favorite recreational
hallucinogenic.
Let us suppose, for a moment, that TSG is right; that there is indeed purloined
code from SysV that was laundered through AIX and ended up in Linux, not having
been sufficiently changed in the process. Let us also assume that IBM was
responsible for this, in whole or in part. Sixteen months have transpired since
the beginning of the formal legal proceedings, and if you take TSG at face
value, much longer than that since they informed IBM of their alleged
transgressions.
If we accept that all of the above is true, what would the implications be in
respect to mitigation of damages, since TSG has done absolutely nothing to help
IBM to determine the illicit code and have it removed from Linux? Does this
have any perjury implications, since TSG has stonewalled on presenting this
information in the first place, especially in light of their public statements
since the beginning about "truckloads" of evidence? And how easy
would it be for IBM to have the whole thing overturned on appeal, since TSG was
able to go on their fishing expedition in violation of several codes of judicial
process.
Would this be an instance of "damned if they do, damned if they don't"
on TSG's part? I don't see a way that they can really win this case, even if
they win this case.
Finally, at what point does somebody make the decision that SysV is antiquated
technology, written for a completely different architecture of machine, and
really has no conceivable relevance to the state-of-the-art as it exists now, or
even a few years back, when IBM started actively contributing to Linux? I've
heard many comments from Eric Raymond and others that say SysV wouldn't be
anywhere near workable in it's original form for use on any of the platforms
that Linux currently works on.
Are the drugs working yet?
Tim
ps. As a side note, I was musing to myself the other day as I was watching
Jeopardy and Ken Jennings, a "software developer from Salt Lake City,
Utah", was going for his 30th win, racking up over 1 million dollars. I
figured TSG was using him to bankroll their legal efforts, until I realized that
he was a software developer, and TSG doesn't have any of those anymore, since
they don't work in their new business model.[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 16 2004 @ 08:41 AM EDT |
This looks like a setup for an appeal.
Somewhere in here is probably a detail
that they can appeal on when the judge
turns them down.
They certainly don't want the merry-go-round to stop now...
[ Reply to This | # ]
|
| |
| Authored by: JeR on Friday, July 16 2004 @ 08:52 AM EDT |
| From SCO's IBM-206.pdf.html, MEMORANDUM IN OPPOSITION TO
DEFENDANT
INTERNATIONAL
BUSINESS MACHINES’ MOTION FOR
SUMMARY JUDGMENT ON ITS
TENTH
COUNTERCLAIM FOR DECLARATORY
JUDGMENT OF
NON-INFRINGEMENT:
"9. Linux was first created in 1991, when
a Finnish college
student named Linus Torvalds began developing Linux as
a hobby after
studying an operating system that one of his professors had based
on and
derived from UNIX. IBM Statement ¶ 2; SCO Linux Introduction
Version
1.2 § 1-5 (2002) (Exh.
S-7)."
"10. Thereafter, Mr.
Torvalds posted his programming
material on the Internet for comment,
and the development of the operating
system became in effect a group project in
which Mr. Torvalds and
his delegates made final determinations about
which suggestions from third
parties to incorporate. Sontag Decl. ¶ 57.
The
kernel of the operating system 5 that resulted came to be known as Linux.
IBM Statement ¶ 3."
"SCO
indisputably has not yet had the opportunity to depose IBM employees who
could have knowledge about the contribution of copyrighted SCO System V code
into
AIX, Dynix, and/or Linux, and has not yet had the opportunity to
depose
third-party contributors (such as Linus Torvalds) who also
could have placed
System V code into Linux. Sanders and the other cases cited
above make clear
that summary judgment is inappropriate where, as here, future
deposition testimony
could bear on issues of
liability."
"SCO has not had the
opportunity to depose any of the contributors of any
source code into
any version of Linux – much less the major contributors – and
therefore has not had any opportunity to discover admissions highly relevant to
IBM’s
copyright infringement counterclaim. Indeed, SCO has not had the
opportunity to depose
even the person (Mr. Torvalds) who is acknowledged
to have compiled the first versions
of Linux – and who indisputably did
so after having studied an operating system
expressly based on and derived from
UNIX. Nor has SCO has the opportunity to depose any
of the kernel
maintainers. Mr. Torvalds and the kernel maintainers (and there have been
numerous such individuals since at least the mid-1990s) are more likely than
anyone
else to be able to help identify who contributed source code to Linux.
Harrop Decl.
¶¶ 46-48; Sontag Decl. ¶
57."
Doesn't it look likely now that SCO would want to
depose Linus Torvalds if it can't
get the Declaratory Judgment of
Non-Infringement dismissed? Also consider that Linus Torvalds is known for is
often strongly worded comments to the press. How do you think SCO's lawyers
think he would look in a hearing? Wouldn't you think that SCO expects him to
behave in court like he would behave toward the press?
IANAL and so on.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 16 2004 @ 09:09 AM EDT |
More evidence of SCOG and Canopy Group blaming others for what they did?
"SCO's copyright claims are based on claims that IBM transferred UNIX code
to India,..."
That isn't the same India that Canopy's Lineo transferred MontaVista code to, is
it? The one that stripped copyrights and sent the code back to Utah? The one
that formed the basis of the suit against Lineo? The one that they had to
settle and seal because they were caught redhanded?[ Reply to This | # ]
|
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| Authored by: pooky on Friday, July 16 2004 @ 09:53 AM EDT |
Okay, if SCO is claiming it will take 25,000 man years to complete their
discovery, and they *need* much, much more from IBM to find the violations, and
presumably unfettered access to RCS will significantly reduce this, doesn't this
raise two basic questions?
1) How is it possible that we can actually have a trial on the agreed upon date
when SCO cannot complete discovery so they can more precisely deifne for the
court what IBM has done wrong? (they keep saying this over and over again)
2) Sthey haven't really shown any evidence that IBM did anything wrong at all,
doesn't their entire case now hang in the balance of whether they get unfettered
access to RCS? And more to the point, doesn't the entire case hang in the
balance of the merits of whether the court will provide them with access? Or
even more to the point, doesn't this now hang on Kimball's opinion of whether
they have a credible claim or not and had any basis to bring it? Without timely
discovery, what is the court left with to make this decision? Nothing!
It sounds to me like SCO just dug a 25,000 foot deep hole and found themselves
in the bottom of it with no rope. The entire case seems to hang in the balance
of the outcome of a technicality. Did they do this on purpose?
---
Veni, vidi, velcro.
"I came, I saw, I stuck around."
[ Reply to This | # ]
|
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| Authored by: minkwe on Friday, July 16 2004 @ 10:02 AM EDT |
SCO essentially concedes that their copyrights are unenforceable. For if they
can not identify any infringement then they would never know if anybody is
infringing their copyrights without access to their CMVC.
SCO themselves said SUN and HP are clean without any CMVC.
SCO is seeking patent protection under copyright law by referring to sequence
structure bladibla. In software, sequence and structure can be similar without
copyright infringement. Especially if the two codebases are working under the
constraints of the algorithm or of a common ancestor.
---
SCO: Your honor, they are trying to confuse us with the facts![ Reply to This | # ]
|
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| Authored by: pooky on Friday, July 16 2004 @ 10:05 AM EDT |
You know, it makes you wonder when SCO is using something like 75% of this
document to argue why IBM has to turn over all versions of AIX and Dynix/Ptx,
why did they not simply appeal Wells' order regarding limiting what IBM had to
produce? The order was simple and the reasoning was simple, they could have made
this argument oh-so-long ago to Kimball and we wouldn't be here facing more
delays as they now claim. If it's so important, why didn't they argue it when
the issue was 1st brought up instead of accepting Wells' order and saying
"ok"?
I don't think Kimball is going to accept this line of reasoning because it isn't
material to the motion IBM is making, and it simply raises the question that IBM
has already raised which is after one year are we still talking about this early
facet of discovery? Why hasn't SCO moved expeditiously to resolve the conflict
that is at the heart of their ability to find IBM's alleged wrongdoing?
What SCO needs to show to survive is that IBM hasn't complied with an order that
would be reasonably calculated to provide them with something to support their
claims, and so far they just keep arguing that IBM has to turn over what Wells'
already said IBM doesn't have to produce.
Looks like the death throws of a dying animal to me.
---
Veni, vidi, velcro.
"I came, I saw, I stuck around."
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 16 2004 @ 10:07 AM EDT |
I have to agree with several of the previous posters that the only good thing we
can really glean from this is that they have finally been forced to make
their insane troll logic derivative theory totally explicit. And they're
frantically trying to backpedal on previous declarations about copyright
violation because, of course, if it's a copyright case, there is plenty of
precedent that a "derivative" work that has been so modified that it no longer
resembles the original work isn't a violation.
So, the SCO guys say,
if our original SysV file uglyhack.c went through 19 revisions done by 3
different developers and eventually become actuallyworks.c in AIX 3.2, even
though there isn't a single line of the original code in there, it's still a
violation of our contract even if it isn't a copyright violation.
Great.
You know, I have here the finest heirloom in my family. It's
an axe. It's a very old and valuable axe because it was George Washington's
original axe -- yes indeed, the very axe he used to chop down the cherry tree.
It's very old -- my great-great grandfather had to replace the handle in
the late 1800s, and my grandfather had to replace the head just after World War
II. How much do you think this thing would go for on eBay?[ Reply to This | # ]
|
- This is a logic error - Authored by: Anonymous on Friday, July 16 2004 @ 11:19 AM EDT
- Axe theory - Authored by: Anonymous on Friday, July 16 2004 @ 02:32 PM EDT
| |
| Authored by: Steve Martin on Friday, July 16 2004 @ 10:11 AM EDT |
Let's see... TSG says the 2.2 kernel is clean, and they're griping about
2.4. and 2.6 kernels. If we think about that, we might come to the conclusion
that any changes that were contributed by IBM and that appeared in 2.4 would
have to have happened sometime between the release of 2.2.0 and the
present.
According to www.kernel.org, the release date for kernel 2.2.0
is January 25, 1999. Thus, it would seem that IBM's donation of code would have
had to have happened some time after that date.
Okay, now look at IBM's
filings. They say they have already provided TSG will all source code to all
releases of AIX and Dynix/ptx dating back to 1995. That's at least three full
years before the release of the Linux kernels in question.
If TSG
cannot find a correspondence between what they have now and the
publicly-released Linux kernel source code, then they most certainly have no
case.
#include "IANAL.h"
---
"When I say something, I put my
name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 16 2004 @ 10:16 AM EDT |
| F&W have a Summer Newsletter that has an article on "The
Complex Legal Implications of Modifying
Licensed Software". [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 16 2004 @ 10:27 AM EDT |
In footnote 4 on page 17, SCO claims:
The 4 million lines of
Linux kernel code, which is the core portion of UNIX, takes up 66,000 pages; the
UNIX kernel comprises 3.4 million lines of code and takes up 58,000 pages. [...]
Assuming each page comparison takes one minute, and that there are 66,000 x
58,000 comparisons [...]
This would indicate that each page of
the Linux kernel would have to be compared against EVERY page of the "UNIX"
kernel (by that ambiguity, I suppose that SCO means SVR4). This, of course, is a
rediculous statement, as each supposedly copied "method or concept" would appear
in a related part of the kernel (you're not going to find memory allocation
routine implimentations in a sound card driver).
Perhaps SCO is hoping
that the judge might not actually think about this calculation and trust
SCO.
Also, IANAL, but wouldn't judges get upset at someone trying to pull
the wool over their eyes? I wouldn't have very fond feelings about someone who
tried to placate me with a "trust us, we calculated this, don't go hurting your
pretty little head trying to do the math yourself" attitude.[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 16 2004 @ 11:00 AM EDT |
| Maureen has 4 new stories up on Linux World. Until now she seem to understand
quite well. But this time she seems just to pass the infomation on.
SCO Claims Linux Lifted
ELF. Interesting read on SCO's take.
SCO Holds its Own in AutoZone
Suit. SCO claims that they got what they asked for.
SCO Accuses IBM of Ducking
Court's Discovery Order. Just a repeat of what we already know.
Ahh, Numbers. Pointless
article about the Kg of materials supplied by SCO.
H@ns [ Reply to This | # ]
|
| |
| Authored by: RealProgrammer on Friday, July 16 2004 @ 11:06 AM EDT |
From the Memo, p.13, ¶
1, talking about IBM's stance that TSG must show some resemblance between SysV
and Linux code: If this approach to discovery were permissible,
there would be no reason for licensors ever to enter carefully worded license
agreements, because they would be literally worthless. Another factor makes
IBM's approach even less appropriate: SCO's License Agreements are worded
precisely to avoid the complexity of this very evolutionary determination. That
is, SCO's contracts with IBM and Sequent make every modification and
derivation part of the original "SOFTWARE PRODUCT" and subject to all of the
contracts prohibitions and limitations."
That's underpinned by
the argument they make against Novell: if that's all the license agreements say,
then why did we pay all that money?
They gloss the fact that they didn't
enter an agreement with IBM, they just merged with a company who merely bought
part of what Novell owned of AT&T's agreement with IBM.
They state
as fact the absurd position, not held by AT&T, that code added to AIX by IBM
must be treated as part of UNIX, as long as it appears in UNIX.
---
(I'm not a lawyer, but I know right from wrong) [ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 16 2004 @ 11:15 AM EDT |
| LinuxWorld has a story
that the (sealed) Gupta declaration says that "SCO's Unix Executable and
Linking Format (ELF) codes are in Linux illegally". However, it also states
"Chris Sontag ... claims TISC ... exceeded its rights even though both Novell
and the old SCO - as well as Microsoft, IBM and Intel - were on the
committee". Even if TISC (the committee that standardised ELF, COFF, PE,
etc.) did exceed its rights, wouldn't SCO's claim be barred by either unclean
hands (if they failed to protest at the time) or failure to mitigate (if they
protested but took no legal action)? [ Reply to This | # ]
|
| |
| Authored by: DannyB on Friday, July 16 2004 @ 12:19 PM EDT |
I love it how SCO says they could streamline the discovery by adding an
additional 25,000 man years of analysis.
So how many man years would it
take if SCO don't get every single version of AIX?---
The price of freedom
is eternal litigation. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 16 2004 @ 12:26 PM EDT |
IANAL so I would like someone to clarify the following:
There has been much argument in this and other threads regarding IBM's
responsibilies in discovery. For example everything IBM has ever done with UNiX,
Dynix, Linux. However the keyword it seems to me is that discovery is only
required if it is "relevant".
In order for SCO to get what they are asking for (which is only relevant under
their current strange theory od derivation), don't they have to get a judge to
agree that their theory is sufficiently reasonable to be argued in court?
Second issue. In their letter of complaint to IBM at the start of all of this,
(the 100 Day Notice) the only specific complaint which they asked IBM to repair
was "IBM has subjected our UNIX trade secrets to unrestricted
disclosure...". When IBM did not act to rectify this, SCO cancelled their
contract for cause.
However, SCO has now dropped the trade secrets issue from the case. So on what
basis does SCO claim to have cancelled the contract.
If the cancellation of the contract was without appropriate grounds, then IBM is
not in breach by continuing to market Dynix etc. ?
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 16 2004 @ 01:27 PM EDT |
As a mathematician and software engineer with little knowledge of the law, other
than what I've picked up through reading Groklaw, SCO's position on this
discovery makes no sense to me.
If this is truly a contract issue, as SCO contends in this document, there
should be no need for them to see any of the versions of IBM software prior to
the earliest contributions to Linux by IBM. All SCO has to prove is that their
interpretation of the AT&T license is correct and that they have the right
to enforce that interpretation. If they can prove those two things, and I'm
convinced at this point that they can't, then all that they would have to do is
show that at least one of the IBM contributions to Linux came from AIX or
Dynix/ptx. (Since JFS was ported to both Linux and AIX from OS/2, that
contribution would not be a good example for SCO to use.)
In order to prove their interpretation and right to enforce, I believe they have
to prove their interpretation matches the interpretation understood by AT&T
and IBM at the time the license contracts were signed and that all rights of
AT&T under the original license were transferred to each successor in
interest (USL, Novell, Santa Cruz Operation, and Caldera/SCO). Given AT&T's
statement in @echo and Novell's claims that they have the right to waive license
terms, this is a huge hurdle for SCO to overcome and is logically where they
should be focusing their efforts.
On the other hand, to claim any copyright infringement of Unix System V, IBM's
argument that SCO only needs the Linux and Unix System V code to prove
infringement makes a lot more sense than any of SCO's counter-arguments.
Besides, unless, as now seems almost certain, SCO has been lying about having
lots of examples of literal and near-literal copying, all SCO needs to do is
provide the examples they claimed last year to already have and hope that nobody
in the Linux community can show that copying from Unix System V wasn't
involved.
Given this, I can only conclude, as have many here, that SCO is on a huge
fishing expedition in hope of finding some evidence of wrong-doing that they
suspect may exist but have no solid basis for that suspicion.
I can only hope that the judge sees through their fabrications or that IBM is
able to convincingly make this case.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 16 2004 @ 01:35 PM EDT |
In reference to the "CMVC system", being a software developer, I don't
see what right they have to see this, IBM provided them source code to each
point release, which is what IBM ships and thus is required to stand by. By
accessing the "CMVC system" you are potentially giving access to the
'individual trees' of the developers, which are meant for their own testing
purposes, what a developer does in his own tree, IBM might not be fully aware
of, at the end of the day. Its what he/she commits to the main branch that
should be compared - which they already have.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 16 2004 @ 01:50 PM EDT |
Even an idiot would release the only reason why all the suddenly so much
activity is occuring is because of the danger to SCO of the summary judgement,
it puts a hurdle on their 'planned liquidation' of the company. Its not easy
doing 'stock buybacks', purchases of other canopy companies etc without the SEC
looking at your Activities and saying are you really doing these for the good of
the shareholders. Basically this is the biggest fleece of the American
investment & legal system and nobody in power seems to notice...
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 16 2004 @ 02:56 PM EDT |
...instead of simply trying to anger the judge in the hope of getting a reaction
that would lead to an appeal, SCO are really trying to get under the skin of
IBM's legal team?
The recent flurry of overlength documents stuffed to the gills with illogical,
inaccurate and misleading arguments, not to mention what some here feel are out
right lies, seem calculated to annoy people. In particular they utterly ignore
the logic and sense of IBM's responses and the reality of the situation. I
wonder if the SCO team are actually tryig to provoke a response from the
Nazgull?
The whole event where Hatch walked over to IBM's stacks of paper and messed with
them seemed to me calculated to cause affront. The orations of SCO's attorneys
again appears to me to at least in part be focused on irritating IBM's
attorneys.
What if, rather than continuing to restate the situation in clear, logical and
readable terms, the Nazgull are tempted into the legal equivalent of a flame
war, answering ever single erroneous point and hammering it into the ground.
Going so far as to annoy the Judge even further than SCO already has.
It's like two siblings having an awkward day. One of them keeps on chipping away
at the other and just won't shut up, no matter how reasonable the other sibling
is. Eventually the calm and reasonable one loses it and explodes at the other.
Their parents of course, haven't really paid much attention until that point
because as annoying as it was the constant chipping away was ignorable. But the
explosion is not, and so that poor sibling who's been reasonable as far as
humanly possible is the one punished. the child who knows what buttons to press,
and how to keep pressing them to get a reaction, gets away with it, becsue it
was not the provocation that was punished, but the reaction.
The recent court happenings and filings in this case look a little like this
pattern. I just hope that the Nazgull have sufficient patience and sense to
avoid the explosive reaction.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 16 2004 @ 04:35 PM EDT |
Well, after wading through all that I find myself in the unusual position of
actually agreeing with SCO on at least part of their argument. And also
completely disagreeing with how they are arguing it.
If, as they keep wanting to say, the case isn't about copyright and only about
contract interpretation, then I completely agree with SCO that the issue isn't
whether AIX & Dynix are derivative under copyright law but whether they are
derivative under the terms of the contract. But in that case, then why are they
arguing it in their motion for more discovery? If its all about contract
interpretation then they don't even need discovery. They simply need to get the
judge to agree with their definition of 'derivative', and the rest is easy. All
of AIX & Dynix would be derivative, and any code from either in Linux would
be a violation. No discovery needed.
This would be a good argument for why the PSJ should be dismissed, since
obviously they wouldn't want a PSJ at this point precluding them from a
copyright claim later should some evidence actually turn up during the course of
the contract litigation. Yet they don't make this argument in their motion to
dismiss, but they bring it up here where its essentially meaningless.
While its obvious to those of us who actually (try to) follow their convoluted
claims that what they really want is to keep anything from derailing their FUD
farm on the copyright issue while being given permission to fish all they want
through IBM's entire history, I only hope the judge has had time to examine all
their mis-logic closely.
They clearly have no basis for all they are requesting as far as discovery. But
if they try to concentrate on dismissing the PSJ and arguing the IBM case solely
on contract grounds, then they can no longer keep using this case to drag out
all the others. Not to mention then they have to actually prove that they have
any rights at all under the agreement which also clearly gives Novell the right
to waive, which they have already done.
Oh what a tangled web we weave...
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| Authored by: Anonymous on Friday, July 16 2004 @ 06:00 PM EDT |
to make it easier to appeal a granting of the summary judgement. Would the
court have to respond to each point raised in all the paperwork related? (I
know most of this is not related, but that is when it was filed.)
-- Alma
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| Authored by: Thomas Frayne on Friday, July 16 2004 @ 08:57 PM EDT |
SCOG's argument that IBM is stalling on discovery assumes that IBM has to do
more than it was ordered to do by the court. However, the court order clearly
limited what IBM had to produce, and put the burden on SCOG to show the need for
additional discovery.
1. To provide the releases of AIX and Dynix
consisting of "about 232 products" as was represented by Mr. Marriott at the
February 6, 2004 hearing. ...Following the production, SCO is to provide
additional memoranda to this Court indicating if and how these files support its
position and how they are relevant. The memorandum is to include with
specificity, and to the extent possible, identification of additional files SCO
requests and the reasons for such requests. The court will then consider
ordering IBM to produce more code from AIX and Dynix. ...
2. Pursuant to
Rule 26(b), SCO should use its best efforts to obtain discovery from the Linux
contributions that are known to the public, including those contributions
publically known to be made by IBM. IBM, however, is ordered to provide SCO any
and all non-public contributions it has made to Linux.
3. IBM is to provide
documents and materials generated by, and in possession of employees that have
been and that are currently involved in the Linux project. IBM is to include
materials and documents from executives including inter alia, Sam Palmisano and
Irving Wladawsky-Berger. Such materials and documents are to include any
reports, materials or documents from IBM's "ambitious Linux Strategy."
...
4. Item does not exist
5. IBM is ordered to provide further
responses to SCO's interrogatory numbers two, five, and eleven. These responses
are to include relevant information from all sources including top level
management.
6. ... The Court orders IBM to properly identify a
representative sample of the potential witnesses that is to include a 1000 of
the most important prospective trial witnesses as agreed upon by SCO and IBM.
Following the production of this information, the Court will consider the need
for the proper identification of additional witnesses.
SCOG
misquoted this order, saying that the judge had ordered IBM to "fully" answer
SCOG's questions. SCOG said "IBM has incorrectly resisted producing earlier
versions of AIX and Dynix/ptx..." SCOG did not mention that the court order
agreed with IBM's position, but spends most of the reply memo arguing SCOG's own
position on what discovery IBM should have produced, even thought SCOG's
position had already been rejected by the court.
#163, SCO's Memorandum
Regarding Discovery, should have discussed IBM's compliance with the court
order, but did not.
Here is my impression of IBM's compliance with the court
order, taken mostly from IBM's affidavit.
1. IBM produced the 232 products
discussed in court. IBM should be prepared to explain why AIX 5.0 is not in the
required set, if IBM did not produce it.
2. All IBM's contributions are
public. IBM endeavored to identify materials that IBM unsuccessfully attempted
to contribute to
Linux and are not publicly available. To the extent IBM
identified any such material, IBM produced it.
3. IBM produced all
non-privileged responsive documents, including those from the files of Sam
Palmisano and Irving Wladawsky-Berger.
5. IBM provided additional answers to
SCO's first set of interrogatories, including the names of persons outside of
IBM, and contact information, where such information exists in IBM's records,
for each person for whom SCO requested such information. IBM responsed to SCO's
Interrogatory No. 11 in accordance with an agreement between SCO and IBM.
6.
SCOG listed 328+81 persons, and said they might ask for more later. IBM located
and sent identification for 326 of the 328 and could not locate 2. IBM sent
identification for 32 of the 81. It is not completely clear why the remaining
49 were not identified (duplication? not part of the original list?).
SCOG
was supposed to tell how the files IBM produced support SCOG's position and how
they are relevant. I don't see where any of SCOG's memos did this.
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| Authored by: Anonymous on Saturday, July 17 2004 @ 04:55 PM EDT |
TSG's storm of paper won't make a good impression on this judge. In his judicial profile, he and his clerks give a few
tips:
- Brevity is appreciated and highly effective as a tool of
advocacy.
- If you have a bad argument, leave it out of your brief and your
oral argument. Making bad arguments hurts your credibility with the
Court.
- In both briefs and oral arguments, get to the key issues and confront
them head-on.
- Understand the strengths of your opponent’s arguments and
address them instead of blindly arguing one position and disregarding opposing
arguments and case law.
Do you see TSG doing any of this?[ Reply to This | # ]
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