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IBM's Steamroller Just Keeps on Rolling
Tuesday, August 24 2004 @ 05:21 PM EDT

IBM has filed three more documents, all related to their Motion to Striike Materials Submitted by SCO In Opposition to IBM's Cross-Motion for Partial Summary Judgment:

"In an attempt to create a fact dispute in opposition to IBM's cross-motion for partial summary judgment on its Tenth Counterclaim, SCO has submitted, and seeks to rely on, incompetent and inadmissible evidence."

Incompetent here doesn't mean what you think it means, although now that you mention it...

It means that the folks who put in declarations don't have personal knowledge or don't have the qualifications to provide the testimony they are offering. Here is Law.com's definition of incompetent in this context:

" . . . a generalized reference to evidence which cannot be introduced because it violates various rules against being allowed, particularly because it has no bearing on the case."

IBM seeks therefore to strike the declarations not only of Chris Sontag but that of Sandeep Gupta and portions of the declaration of John Harrop also, all of which consist, IBM asserts, "almost entirely of testimony not made on personal knowledge and improper opinion testimony. Indeed, SCO does not even attempt to show that these witnesses may properly offer opinion testimony. . . " The paragraphs IBM seeks to strike from the Harrop Declaration, which it describees as legal "argument, not evidence", are paragraphs 4-9, 11-24, 27, 29-30, 32-34, 36-41, 43, 44, 47, 50-52, 54, 56, 58-65, 67, 69-72, and 76-95. Legal argument is, by definition, opinion, not facts, so that should be excised. The tattered rag left after all that cutting can remain.

IBM also mentions that SCO is relying on news reports "for the truth of their contents", and you know how silly that would be in everyday life, let alone in a court case, so they submit that the court should strike Exhibits 24, 25A, 33, 36, 38, 41, 42, 44, 50-52, 56-59, 61, 63-65 and S-3. "In addition, SCO seeks improperly to rely on certain news articles for the truth of their contents. That is classic inadmissable hearsay and should be stricken," is how IBM puts it in its Memorandum in Support of this motion. Worse for SCO, they "failed to properly authenticate" the documents, according to footnote 6 on page 14 of the supporting memorandum:

"It should be noted that SCO failed properly to authenticate documents it has submitted for the Court's consideration. Rather than submit its evidence as exhibits to an affidavit or declaration attesting to their authenticity, SCO has simply attached them as exhibits to its unsworn opposition brief. As a technical matter, therefore, SCO's exhibits should be excluded from consideration on this motion. See IBP, Inc. v. Mercantile Bank of Topeka, 6 F. Supp. 2d 1258, 1263-64 (D. Kan. 1998) ('It is well established . . . that a party cannot rely on unauthenticated documents to avoid summary judgment. . . . Although [plaintiff] may have an official who can authenticate the materials, the court is under no obligation at the summary judgment stage of proceedings to examine all the hypothetical ways in which evidence could be reduced to an admissible form by the time of trial.'"

Ouch. You think maybe SCO has too *many* attorneys? And then, the most embarrassing of all, IBM moves to strike 11 exhibits that SCO in its brief failed to reference in any way. Neither did any of the three witness declarations. "As these materials are plainly extraneous to the record," IBM smoothly asserts, "they should be stricken as well." This is more or less the equivalent of walking out of a rest room with toilet paper stuck to your shoe. You do look foolish.

Further, IBM asks that "all portions of SCO's opposition brief relying on the improper testimony of Mr. Gupta, Mr. Sontag and Mr. Harrop or inadmissable documents also be stricken from the record, including in particular paragraphs 1 n.3, 3, 8, 10, 10 n.5, 11, 12-14, 40, 44 and 47 of SCO's statement of facts." They request oral argument on the motion.

What does it all mean? That IBM wishes to strike all the so-called facts in dispute that SCO has attempted to offer. That SCO will be shown no mercy. If they fail to dot an i, IBM will call them on it, with a motion and oral argument requested, all of which costs money to respond to and deal with. It also means that IBM believes that SCO is manufacturing bogus issues, in an attempt to create some fact dispute sufficient to survive IBM's summary judgment on its 10th counterclaim, and they intend to call them on it. It also means that the tide has turned, and IBM is on the offensive now. SCO, as plaintiff, had its time to present its case to the court and to the world. Now, IBM is striking back. It's their inning now. And I don't believe they will stop until they prevail.

There is also a Memorandum in Support of this motion and a Ex Parte Motion for Leave to File Overlength Memorandum, the overlength memo being this 13-page one in support of the Motion to Strike Materials. They explain that rather than submit three motions and three supporting memorada, one for each declaration they seek to strike, they have combined them into one, resulting in the need for a slightly overlength memorandum. This is another subtle dig at SCO, who filed a blizzard of papers, pretty much all asking for the same relief.

But more than anything else, if you look at page 4 of the Memorandum in Support, at the footnote, you will see that once again IBM is telling SCO that if it has experts who have deep-dived into code, to put that evidence on the table. Don't use Chris Sontag as a front man, to allude to experts and what they allegedly found. You have experts? *They* should be putting in declarations, IBM states:

"Mr. Sontag insists in his declaration that 'SCO and its experts' (whom he does not identify) have undertaken certain code comparisons, but pointedly does not describe how he was involved in such activities, if at all. . . . To date, SCO has not identified any of its expert witnesses, and has refused to produce any of its experts' work that it has described publicly and in its discovery responses.. . . SCO should not be permitted to 'selectively disclos[e]' its experts work. See Quark, Inc. v. Harley , Nos. 96-1046, 96-1048 & 96-1061, 1998 U.S. App. LEXIS 3864, at *8 (10th Cir. Mar. 4, 1998)(attached hereto as Exhibit A). '[A] litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion.' . . . If SCO has retained experts to perform such work, then SCO should have submitted their declarations in opposition to IBM's motion. If SCO has not done so, or has done so but does not yet wish to disclose them, then it may not attempt instead to introduce such testimony through individuals who it will not -- or cannot -- qualify as experts."

I'm thinking SCO may rue the day it ever mentioned those MIT deep divers. This isn't the first time IBM has brought them up, and I'm sure it won't be the last. You also don't want to miss reading pages 11 and 12 of the Memorandum, where for the first time we see IBM begin to respond to SCO's attempt to garner RCU for itself, under their theory of methods and routines, which are ideas, which IBM points out are unprotectable under copyright law, which protects only the expression of ideas. They quote from Gates Rubber that "the main purpose or function of a program will always be an unprotectable idea" and that "the expression adopted by the programmer is the copyrightable element in a computer program . . . the actual processes or methods embodied in the program are not". Take a look at what Gupta calls "UNIX RCU" and "Linux RCU", in Exhibit A attached to his declaration, they say, and you don't need to be an expert to see they don't look at all alike. They are not only not identical, they are "not even close to being 'similar'", IBM states. Anyway, they add, Gupta's examples, even if they were any good, only amount to maybe a couple of hundred lines of code out of programs that are "each millions of lines long" and so are insignificant. Utah Rules of Evidence are here, by the way.

There is also a stipulation between SCO and Novell on Pacer today, giving SCO a little more time to file a memorandum in opposition to Novell's Motion to Dismiss, specifically until September 7th. SCO's lawyers are a tad busy right at the moment and likely begged for more time.


  


IBM's Steamroller Just Keeps on Rolling | 393 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT here
Authored by: Anonymous on Tuesday, August 24 2004 @ 06:15 PM EDT
eom

[ Reply to This | # ]

IBM's Steamroller? Pile Driver!
Authored by: WBHACKER on Tuesday, August 24 2004 @ 06:18 PM EDT
Correction:

Not a 'steamroller'. Those are used to make irregular surfaces smooth.

"Steam pile driver" is what the term you want.

As in driving something into the ground, hence out of sight, with repeated blows of a massive hammer.

Awesome to watch. And the ground shakes.

When the piling being driven hits rock, nearby buildings shake.

Just what the doctor ordered!

---
Bill Hacker

[ Reply to This | # ]

Footnote Page 14. More sloppy SCO lawyering
Authored by: Anonymous on Tuesday, August 24 2004 @ 06:20 PM EDT
SCO did not "authenticate" their exhibits, so they should be excluded
on technical grounds alone. I wonder if it sloppiness or whether they are
trying to pull a fast one.

[ Reply to This | # ]

Couple of other bits - SCO's filings + Brian Kernighan IBM
Authored by: Anonymous on Tuesday, August 24 2004 @ 06:29 PM EDT
(1) SCO have filed their reply memo asking to dismiss/stay IBM CC 10 (IBM's
Linux activities don't infringe any SCO copyright)

In this memo, SCO no longer seeks a stay in favor of AZ

SCO now seek to dismiss, or in the alternate to sever IBM CC 10 into a separate
case

This memo relies rather heavily on their "renewed" motion to compel.


(2) More reverse engineering done on Sontag and Gupta declarations (which IBM
seeks to strike entirely as noted in PJ's story, and on which Harrop's
declaration depends in large part (and IBM seeks to strike those parts)). More
to follow on this shortly


(3) IBM have a declaration from Brian Kernighan. Yes that Brian Kernighan. This
seems to be aimed at Gupta's assertion (apparently he has 200 lines of code
comparing Linux RCU to Unix RCU and ignoring AFC)

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

The grind is showing on SCO...
Authored by: John M. Horn on Tuesday, August 24 2004 @ 06:41 PM EDT
Mentally I picture them looking something like the Terminator in the film of the
same name, just before it is crushed in a giant press by a desperate looking
Linda Hamilton...

Only IBM isn't a frightened (and innocent) citizen caught up in a nightmare,
they are the irresistable hydraulic press slowly squeezing SCO into a useless
bundle of crushed documents atop a mounting pile of legal invoices.

I hope that the good (and competent) employees of SCO who have had no part in
this undertaking are able to find prosperity when this is all over.

John Horn


[ Reply to This | # ]

Thank you, Ken Brown
Authored by: StLawrence on Tuesday, August 24 2004 @ 06:56 PM EDT
In IBM's Memorandum of Support (footnote, page 5) they cite Professor
Andrew Tanenbaum's rebuttal to Ken Brown's purported "study",
going so far as to post the URL (http://www.cs.vu.nl/~ast/brown/). So,
yet again, Microsoft's efforts to stir up FUD continue to backfire and work
against them. If it wasn't for Ken Brown's efforts, Professor Tanenbaum
wouldn't have had any reason to post his public expert assertion
regarding the roots of Minix.

So, thanks Ken! And tell your buddies at Microsoft thanks, too. :-)

[ Reply to This | # ]

CORRECTIONS THREAD: Surprised It Hadn't Been Started Already
Authored by: Weeble on Tuesday, August 24 2004 @ 07:03 PM EDT
Typo in the first line; "Motion to Striike Materials".
"Strike" should have one "i". I checked the PDF--it's not a
carryover.

---
MS Windows doesn't HAVE security holes--it IS a security hole.

[ Reply to This | # ]

Page 9, footnote 8
Authored by: overshoot on Tuesday, August 24 2004 @ 07:09 PM EDT
Remember the recent discussion on "Shepardizing?"

BSF should have read it. IBM gently points out that one of the cases that SCOX cites (Ericsson Inc. v. Harris Corp.) was vacated based on plaintiff's motion for reconsideration.

Talk about ouch!

[ Reply to This | # ]

IBM's Steamroller Just Keeps on Rolling
Authored by: Anonymous on Tuesday, August 24 2004 @ 07:26 PM EDT
If SCO has retained experts to perform such work

IBM keeps hinting that the fact that SCO has handed over none of the alleged code analysis implies no such analysis was ever performed.

What I am waiting for is an IBM motion that this is the case and therefore they should get partial summary judgement on their Lanthan Act and other related claims. In other words, get the court to declare that SCO's public claims against Linux were a fraud from the very beginning.

[ Reply to This | # ]

correction
Authored by: Anonymous on Tuesday, August 24 2004 @ 07:28 PM EDT
"Motion to Striike Materials"

Should be "Strike"

[ Reply to This | # ]

Perjury?
Authored by: whoever57 on Tuesday, August 24 2004 @ 07:31 PM EDT
Do I read this wrongly? IBM seems to be indirectly accusing several witnesses of
perjury: that they claim "personal knowledge", but they don't actually
have such?

[ Reply to This | # ]

Love those footnotes: #12
Authored by: overshoot on Tuesday, August 24 2004 @ 07:34 PM EDT
In this case, there is no question that SCO intentionally failed to comply with the Court's orders. For example, when IBM called to SCO's attention that it had failed to comply with the Court's order because it did not identify any lines of UNIX System V code at issue, SCO responded offhandedly that it knowingly (not inadvertently) failed to identify such lines because "that is not part of SCO's claims." (Ex. 29.)

Wrapping up a delightful section where IBM calls SCOX on misrepresenting the law, Federal Rules, local rules, and the Court's own rulings with regard to sanctions for willful noncompliance in discovery.

This is not gonna leave a mark, because it covers so evenly that there's no contrast left. It's just plain hurtin' all over!

[ Reply to This | # ]

for darl
Authored by: Anonymous on Tuesday, August 24 2004 @ 07:45 PM EDT
PJ said: "SCO, as plaintiff, had its time to present its case to the court and to the world. Now, IBM is striking back. It's their inning now. And I don't believe they will stop until they prevail."
this one's for Darl:

Think of the situation as a football (U.S.) game, SCOvsIBM.

The score is 21 to 0, IBM. Fourth quarter with 2 minutes remaining on the clock. After a long, grueling 70-yard drive, SCO's quarterback gets sacked and fumbles; IBM recovers.

SCO's quarterback has a concussion, and only 3rd string is left. IBM brings in Plunkett for the last, painful drive... just to drive the point home, not to win the already-won game.

[ Reply to This | # ]

IBM's Steamroller Just Keeps on Rolling
Authored by: Philip Stephens on Tuesday, August 24 2004 @ 07:51 PM EDT
Sandeep Gupta's "analysis" of RCU demonstrates the complete and utter
silliness of SCO's position: that because the implementation of RCU in Linux is
based on the same IDEA as RCU in System V, that copyright infringement has
occurred! That argument won't fly in anyone courtroom.

Even a lay person that see that the IDEA behind RCU is actually very simple, so
it wouldn't even pass the test of nonobviousness required for a patent (although
it wouldn't surprise me if the USPTO has already awarded a patent for RCU to
someone).

[ Reply to This | # ]

Illustration
Authored by: tredman on Tuesday, August 24 2004 @ 08:02 PM EDT
I think this is a perfect illustration of the problem with SCOX's case from the
very beginning. Because they were operating a pump-and-dump, they were more
concerned with winning the battle in the court of public opinion, instead of any
judicial court. The problem with that is that the judge is not a financial
advisor, investor, newspaper/magazine subscriber or potential licensee, so he
doesn't really give a flying fig what happens in the court of public opinion.
He's not judge there.

The problem is, when you present a case that way, things have a way of coming
back to bite you.

Tim

ps. I don't think they had much of a chance in the court of public opinion,
either, but that's just me as an open source user...

[ Reply to This | # ]

  • Illustration - Authored by: tz on Tuesday, August 24 2004 @ 11:38 PM EDT
IBM's Steamroller Just Keeps on Rolling
Authored by: billmason on Tuesday, August 24 2004 @ 08:05 PM EDT
For a long time, SCO was so loud and IBM so quiet. I almost began to wonder if
IBM was soft, but it was more like a cat playing with its mouse and letting it
tire itself out before pouncing. Then when IBM pounced, boy did they pounce.

[ Reply to This | # ]

Sontag + Gupta reverse engineered
Authored by: Anonymous on Tuesday, August 24 2004 @ 08:19 PM EDT
These are my latest versions of reverse engineered declarations of Sontag and
Gupta based on other public documents.

PLEASE NOTE:

(A) The quoted parts are believed to be accurate (but partial) quotes, from
reading other documents.

(B) In several cases it is NOT clear which paragraph a quote is from (e.g. SCO
or IBM references a quote in connection to more than one paragraph). For these
items I have listed all the paragraphs to which the quote is attached in
argument, so at least some of these quotes may be more like point (C)

(C) The non-quoted parts are NOT be the statements in the affidavit themselves.
Rather. the affidavit supposedly contains a statement which is used (in a public
document) to support a particular contention or line-of-argument. So, in these
cases, I have listed the particular contention or line-of-argument (which we
have access to) that the affidavit's statement supposedly supports.

(D) Errors are of course possible, I've done my best, but I don't purport to be
perfect or anything close.

Quatermass
IANAL IMHO etc



Sontag
======
General:
- SCO seeks discovery the most important contributions made ot Linux (IBM-206:
Discovery to Determine Identities of Contributors and Contributions to Linux)
- Does not establish basis of alleged personal knowledge (IBM-247 pp4)

1.
Affidavit is based on "personal knowledge" (IBM-247 pp3) and unnamed
"reliable sources" (IBM-247 pp4) (IBM-213 pp3) and "information
and belief" (IBM-213 pp3)

1. Mr Sontag is "Senior Vice PResident and General Manager of The SCO
Group, Inc.," that he works out of SCO's offices in Lindon, Utah and that
"[u]nless otherwise noted or evident from their context, this declaration
is based on [his] personal knowledge and information available to [him] from
reliable sources." (IBM-247 pp8)

1.
"SCO and its experts", experts unindentified, have done certain code
comparisons (IBM-247 footnote 1, pp4)

3.
AIX directories in CVMC are "easily recognizable" and that
"producing the materials that SCO requests... should not take more than a
few weeks". (IBM-213 pp4)

4.-25.
(Contains opinions on methods of performing code analysis) (IBM-247 pp8)

4.-23.
Comparing Linux and Unix is hard without roadmaps. 66,000X58,000 comparisons for
initial review would take 25,000 man years. Following initial review, SCO must
conduct a second level review which is also lengthy. (IBM 206: Comparison of
Source Code)

4.
Linux contains approximately 8,750 individual files and 4 million lines of code,
in the kernel alone. (IBM-206 14).

4.
Many individuals familiar with Linux recognize that source code therein may
infringe SCO's copyrights. (IBM 206: Recognition of Potentially Infringing
Material in Linux)

5.
(Contains opinions on structure, size and contents of UNIX, Linux, AIX, Dynix,
ptx, and Dynix/ptx operating systems) (IBM-247 pp8)


6.-7.
(Contains opinions on the function and composition of an operating system
kernel) (IBM-247 pp8)

6.
Without access to the evolution of AIX and Dynix, SCO could not answer which
lines of code in UNIX System V, IBM's contributions to Linux, via AIX and Dynix,
are derived. (IBM-206 59).

8.
(Contains opinions on structure, size and contents of UNIX, Linux, AIX, Dynix,
ptx, and Dynix/ptx operating systems) (IBM-247 pp8)

8.
IBM's CC 10 amounts to a request for, among other things, a
clean bill of health for the entirety of Linux - including each of its
approximately 8,750 individual files and 4 million lines of code in the kernel
alone. (IBM-206 40).

8.
"to show that Linux code is substantially similar to Unix code requires a
comparison of that code..." (IBM-256 pp28/38)

10.-20.
Automated search tools are limited. After locating similar blocks of code manual
review must be done. A manual review is only possible if each version of the
code can be reviewed to follow changes from one version to the next. (IBM-199
Harrop 94)

10.
"us[ing] an automated process to perform a complete comparison of all of
the source code in UNIX and Linux... is not feasible" and that manual
review "could take on the order of 25,000 man-years" (IBM-247 pp5-6)

11.
It should take IBM two days to copy CMVC info onto DVD. IBM "exaggerates
the burden it faces". (IBM-213 pp6).

11.-19.
AIX directories in CVMC are "easily recognizable" and that
"producing the materials that SCO requests... should not take more than a
few weeks". (IBM-213 pp4)

12.
"SCO and its experts", experts unindentified, have done certain code
comparisons (IBM-247 footnote 1, pp4)

12.
"SCO and its experts have used automated tools to locate lines of identical
code and they have visually analyzed the larger blocks of code in which those
lines appear" (IBM-256 footnote33 pp32/42)

14.-23.
Comparing Linux and UNIX is hard. SCO has made educated guesses about what to
compare (e.g. files with similar names, components with similar functionality).
The comparisons done are only a very small fraction of the total number of
comparisons that could be made. (IBM-199 Harrop 95)

14.-16.
(Contains opinions on structure, size and contents of UNIX, Linux, AIX, Dynix,
ptx, and Dynix/ptx operating systems) (IBM-247 pp8)

14.
"SCO and its experts", experts unindentified, have done certain code
comparisons (IBM-247 footnote 1, pp4)

14.
"us[ing] an automated process to perform a complete comparison of all of
the source code in UNIX and Linux... is not feasible" and that manual
review "could take on the order of 25,000 man-years" (IBM-247 pp5-6)

15.
Comparing Linux and UNIX is hard. It's easier if they trace the history of AIX
and Dynix, compare that to UNIX, then the matches found could suggest areas to
compare between UNIX and Linux. Otherwise the comparison could take 35 man years
to search Linux code for evidence of copying. (IBM-199 Harrop 59)

15.
Comparing UNIX and Linux is hard there are lots of lines. It could take 35 man
years. Automated search tools are limited. SCO and its experts have not sought
to undertake any wholesale comparison of the source code in any two computer
operating systems. (IBM-199 Harrop 93) (IBM-206: Examination of Multiple
Versions of AIX and Dynix)

15.
IBM's CC 10 amounts to a request for, among other things, a
clean bill of health for the entirety of Linux - including each of its
approximately 8,750 individual files and 4 million lines of code in the kernel
alone. (IBM-206 40).

18.
IBM should use a "top down" rather than a "bottom up"
approach to search CVMC for AIX files. The "top down" approach
"will not only work, but will be sufficient and is the most time- and
labor-efficient means for IBM to collect the CMVC information SCO
requires". (IBM-213 pp4)

18.-23.
"SCO and its experts", experts unindentified, have done certain code
comparisons (IBM-247 footnote 1, pp4)

18.-23.
Comparing UNIX and Linux is hard there are lots of lines. It could take 35 man
years. Automated search tools are limited. SCO and its experts have not sought
to undertake any wholesale comparison of the source code in any two computer
operating systems. (IBM-199 Harrop 93)

20.-30.
It should take IBM two days to copy CMVC info onto DVD. IBM "exaggerates
the burden it faces". (IBM-213 pp6).

21.
"SCO and its experts have used computer programs to identify the extent of
similarity between lines of source code in any two given files" (IBM-256
footnote 33 pp32/42)

22.-23.
AIX directories in CVMC are "easily recognizable" and that
"producing the materials that SCO requests... should not take more than a
few weeks". (IBM-213 pp4)

24.-26.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux Are Essential) (IBM-206: Depositions of
Contributors to Linux)

24.-28.
The depositions of (at least) the principal IBM and Sequent employees
who were permitted to and did access the UNIX software prior to the advent of
AIX and Dynix not only may provide
evidence in support of SCO's claims, but also may permit SCO to identify other
persons who in fact had access to UNIX. That information will, in turn, permit
SCO more reasonably to determine which of the individuals who had access to UNIX
to depose. (IBM-206: Depositions of Persons with Access to UNIX)

24.-28.
IBM has failed to produce the discovery that would allow SCO to depose principal
programmer contributors to streamline the discovery process on issues of
non-literal copying (IBM-206: Comparison of Source Code)

24.-28.
Mr. Russel (of IBM) and other programmers can also identify contributors to the
Linux code and can show the necessary access to AIX and Dynix that these
contributors had. (IBM-206: Depositions of Contributors to Linux)

26.-49.
(Contains opinions on software revision control systems including IBM's CVMC)
(IBM-247 pp8)

27.
Quotes/cites from Gupta's declaration (IBM-247 footnote 4, pp9)

29.-54.
Comparing Linux and UNIX is hard. It's easier if they trace the history of AIX
and Dynix, compare that to UNIX, then the matches found could suggest areas to
compare between UNIX and Linux. Otherwise the comparison could take 35 man years
to search Linux code for evidence of copying. (IBM-199 Harrop 59) (IBM-206:
Examination of Multiple Versions of AIX and Dynix)

30.-42.
(Contains opinions on software development generally) (IBM-247 pp8)

30.-36.
(Contains opinions on bug fixing and tracking) (IBM-247 pp8)

31.-35.
Tracing derivation of SCO owned UNIX code into Linux would be facilitated if SCO
had access to CVMC (IBM-199 Harrop 61) (IBM-206: Examination of Multiple
Versions of AIX and Dynix)

34.
It should take IBM two days to copy CMVC info onto DVD. IBM "exaggerates
the burden it faces". (IBM-213 pp6).

35.-36.
SCO seeks all interim versions, version logs, source code control info for Dynix
and AIX since 1984. (IBM-199 Harrop 60) (IBM-206: Examination of Multiple
Versions of AIX and Dynix)

36.-42.
(Contains opinions on structure, size and contents of UNIX, Linux, AIX, Dynix,
ptx, and Dynix/ptx operating systems) (IBM-247 pp8)

36.-42.
Examination of lineage of code sequences faces substantial obstacles. (IBM-199
Harrop 65) (IBM-206: Examination of Multiple Versions of AIX and Dynix)

37.
This opinion would only be clear to "a skilled UNIX programmer"
(IBM-247 footnote 3, pp9)

39.
This opinion would only be clear to an "experienced UNIX programmer"
(IBM-247 footnote 3, pp9)

46.-54.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux)

47.
Quotes/cites from Gupta's declaration (IBM-247 footnote 4, pp9)

50.-56.
(Contains opinions on nature and uses of software development white papers,
design documents and programming notes) (IBM-247 pp8)

50.-54.
SCO seeks all design documents, whitepapers and programmer notes since 1984.
Design documents also list authors of code whom SCO could depose. (IBM-199
Harrop 63) (IBM-206: Examination of Multiple Versions of AIX and Dynix)

53.
Programming notes list authors of code whom SCO could depose to help SCO
prioritize its search for substantially similar Linux code. (IBM-199 Harrop 64)
(IBM-206: Examination of Multiple Versions of AIX and Dynix)

57.
(Contains opinions on the Linux development process) (IBM-247 pp9)

57.
There is no roadmap that that will allow SCO to trace UNIX code into Linux
(IBM-199 Harrop 41, IBM-206, 12)

57.
There is no list of all Linux contributors. SCO must review Linux change log.
The change log data is incomplete and contains incorrect data, obsolete data,
nicknames. SCO has initiated review and created a partial list of Linux
contributors (IBM-199 Harrop 42, IBM-199 Harrop 51, IBM-206 12)

57.
Linux is a computer operating system that was developed through decentralized
contributions of computer code by thousands of developers around the world
(IBM-206 8)

57.
Torvalds chooses which third party suggestions to incorporate (IBM-206 10).

57.
Torvalds is more likely to know that anybody else who contributed source.
(IBM-206: Depositions of Contributors to Linux Are Essential)

57.
Linux development doesn't include any mechanism to ensure that intellectual
property rights, confidentiality, or security were protected. Contributors to
Linux were not required to assign copyrights or guarantee their ownership of
copyright materials contributed. (IBM-206 11).

57.-58.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux Are Essential)

59.
SCO believes that depositions of contributors will lead to admissions of copying
(IBM-206: Depositions of Contributors to Linux Are Essential)

59.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux)

73.-75.
SCO seeks to depose the persons and entities that contributed source code to
Linux. Such depositions will reduce the extremely time-consuming direct
comparisons of source code that would otherwise be required. (IBM-206:
Depositions of Contributors to Linux)

Gupta
=====
General:
- Does not establish basis of alleged personal knowledge (IBM-247 pp4)
- Doesn't establish his status as expert (IBM-256)
- Doesn't include AFC (IBM-256 footnote11 pp18/28),
- Doesn't describe the methodology of comparison (IBM-256 footnote 11 pp18/28)
(IBM-247 pp10)
- Doesn't do analysis of whether the alleged similarities are substantial
(IBM-247 pp12)
- Contains no more than a couple of hundred lines of code (IBM-247 pp12)

1.
"My name is Sandeep Gupta and I am employed by The SCO Group, Inc. My
office is located at 430 Mountain Avenue, Murray Hill, NJ 07974" (IBM-247
pp7)

1.
Affidavit is based on "personal knowledge", unnamed "reliable
sources", and "information and belief" (IBM-247 pp4).

1.
"this declaration is based on my personal knowledge and information
available to me from reliable sources." (IBM-247 pp7)

3.-86.
Substantial similarity of RCU in Linux to a routine in UNIX. Copying of UNIX Sys
V init into Linux 2.6. Substantial similarity of Linux and UNIX ULS routines.
Copying of SCO's System V IPC code into Linux 2.4.20. Copying of SCO's
copyrighted UNIX "header and interfaces" in Linux. Copying of SCO's
ELF codes in Linux. (IBM-199) (IBM-206: Comparison of Source Code)

3.
Statement is based on facts that were "represented to [him]" by
unidentified individuals (IBM-247 pp4)

3.
SCO has identified evidence of literal and non-literal copying of material from
UNIX into Linux. (IBM-206 13)

3.
There are substantial similarities between six categories of
"routines" or "groupings of code" within Linux and SCO's
allegedly copyrighted UNIX code. (IBM-256 pp12/22). These six are "the
Read-Copy-Update routine", "the user level (ULS) synchronization
routines", "IPC code", "certain headers and
interfaces", "Sys V init code", "Executable and Linking
Format (ELF) code". (IBM-256 pp19/29).

3.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to RCU (IBM-256 pp19/29)

3.
"several routines and several groupings of code for which SCO has copyright
protection were copied into the Linux operating system" (IBM-247 pp5)

3.
"routines" (IBM-247 p12)

5.
Statement is based on facts that were "represented to [him]" by
unidentified individuals (IBM-247 pp4)

5.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to RCU (IBM-256 pp19/29)

5.
"routines" (IBM-247 p12)

6.
"methods" (IBM-247 p12)

7.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to RCU (IBM-256 pp19/29)

7.
"methods" (IBM-247 p12)

10.-11.
"Linux RCU and Unix RCU" are "substantially similar" because
they "perform the same five acts": "[a]llocating a new data
structure of a different size"; "[c]opying the contents of the old
data structure to the new data structure"; "[u]pdating the new data
structure"; "[u]pdating or redirecting a pointer to point to the new
data structure"; and "[a]rranging for deferred deletion of the old
data structure".

10.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to RCU (IBM-256 pp19/29)

10.
"Linux RCU is substantially similar to UNIX RCU" (IBM-247 pp11)

10.
"routines" (IBM-247 p12)


11.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to RCU (IBM-256 pp19/29)

11.
"that perform the save five acts" (IBM-247 pp12)

24.
Statement is based on facts that were "represented to [him]" by
unidentified individuals (IBM-247 pp4)

26.
Statement is based on facts that were "represented to [him]" by
unidentified individuals (IBM-247 pp4)

28.
Statement is based on facts that were "represented to [him]" by
unidentified individuals (IBM-247 pp4)

30.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to ULS (IBM-256 pp19/29)

31.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to ULS (IBM-256 pp19/29)

32.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to ULS (IBM-256 pp19/29)

34.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to ULS (IBM-256 pp19/29)

36.
"routine[s]" and "methods" that "perform the
same...acts" - in relation to ULS (IBM-256 pp19/29)


Exhibit A:
RCU code (IBM-256 pp20/30)
Side-by-side comparison of Linux RCU and UNIX-RCU in columns 1 and 4 (IBM-247
pp12)

Exhibit H:
ULS code (IBM-256 pp20/30)

Exhibit I:
ULS code (IBM-256 pp20/30)

Exhibit J:
ULS code (IBM-256 pp20/30)


[ Reply to This | # ]

I am really confused.
Authored by: Anonymous on Tuesday, August 24 2004 @ 08:29 PM EDT
Every one loves to dump on SCO, but to what extent are their lawyer culpable for
these cases.

Periodically, a Groklawyer writes a "there there" comment of sympathy
for the poor lawyers that must represent the undefensible.

What we have seen from this round of memorandum, and many previous ones, is that
the Boies firm is very unfocused and careless. Is it possible that it is their
legal sloppiness in the preliminary investigation that got SCO into this mess? [
Humm, millions of lines of code, huh, now what happens if you do the
"filtration" tests, and toss the code that was "borrowed"
from Linux?" ]

When Darl decided he needed a rescue plan for sinking SCO, what did he do? Did
he approach a famous law firm and give them a 20 minute ppt presentation on the
UNIX/Linux shared heritage? Did the legal eagle's then shoot from the hip and
give a 15 minute legal opinion saying "WOW, you have a billion dollar IP
case"? And did they advise SCO of a course of action without checking
facts? What IP pirate in his right mind takes on IBM as the first lawsuit? While
knowing IBM's intolerance of parasites? Or attacks DC or AZ or Banak of America
for that matter?


- Qtlurker

[ Reply to This | # ]

My Favorite So Far
Authored by: maco on Tuesday, August 24 2004 @ 08:42 PM EDT
Of all the submissions of IBM, this is my personal favorite so far.

I hate dealing with liars and prevaricators, and to see come-uppance like this
brings unadulterated joy to my heart.

[ Reply to This | # ]

Small problem with IBM's Steamroller
Authored by: marbux on Tuesday, August 24 2004 @ 08:55 PM EDT
Take a look at what Gupta calls "UNIX RCU" and "Linux RCU", in Exhibit A attached to his declaration, they say, and you don't need to be an expert to see they don't look at all alike."
When I read the brief, this was the only mistaken argument I saw the Nazgul make. If you're challenging a witness on lack of expertise, you don't admit that one doesn't need to be an expert to render an opinion.

BTW, The link to the Utah state rules of evidence should probably be changed. The Utah state rules of evidence are irrelevant to this motion, since this is a federal court diversity action. (Some state rules still apply since they have no federal counterparts, such as those establishing privileges.)

Here are the Federal Rules of Evidence.

[ Reply to This | # ]

Transcription Assists Here
Authored by: Anonymous on Tuesday, August 24 2004 @ 09:02 PM EDT
If needed, I've transcribed II. starting on PDF page 14 and ending on 16.

-#- represent footnote references.

Otherwise, basic text is used throughout.

II. THE COURT ALSO SHOULD EXCLUDE CERTAIN OF THE DOCUMENTS SUBMITTED BY SCO IN
OPPOSITION TO IBM'S MOTION FOR PARTIAL SUMMARY JUDGMENT.

The Court should also strike certain of the documents SCO has attached as
exhibits (Exhibits 38, 41, 44, 52, 56, 57, 58, 59, 64) to its opposition brief
because, for the propositions asserted by SCO, they are inadmissible
hearsay.-6-

Rule 801 of the Federal Rules of Evidence states that hearsay "is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted".
In its opposition brief, SCO offers a number of news articles in evidence solely
to prove the truth of the matters asserted therein.-7- SCO cites to news
articles to support its conclusory assertions that the "Linux development
process did not employ any mechanism to ensure that intellectual property
rights, confidentiality, or security were protected" (SCO's Statement of
Facts ("SCO Facts") 11, citing Ex. 44);-8- that "the identities
of all the principal contributors to Linux are not public information" (SCO
Facts 12, citing Ex. 59), and that several companies, including IBM and
Sequent, created "modifications of UNIX" (SCO Facts 3, citing Ex.
57).

Even setting aside that the articles do not support the broad assertions for
which SCO cites them,-9- the documents cited by SCO are classic inadmissible
hearsay and cannot be considered on a motion for summary judgment. Fed. R. Evid.
802; see N.E.W. & C.M.W. v. Kennard, 952 F. Supp 714, 716 (D. Utah
1997)(granting defendant's "motion to strike, from summary judgment
consideration, a newspaper article" because the "newspaper article is
hearsay not otherwise reliable or admissible"); Johnson v. Housing
Authority of City of McAlester, Okla., 887 F. Supp. 1440, 1446 (E.D. Okla.
1995)(holding that "newspaper articles" cited in support of summary
judgment were "inadmissible hearsay"). Accordingly, Exhibits 41, 44,
57, and 59, along with the portions of SCO's opposition brief that rely on such
documents (SCO's Facts 3, 11, 12) should be stricken.

Mr. Harrop's declaration similarly relies on hearsay contained in news
articles. For example, at paragraphs 69-71 of his declaration, Mr. harrop
purports to testify--by quoting various news articles--that "many
individuals familiar with Linux recognize that source code therein may infringe
SCO's copyrights." (Id. 69-71, citing Exs. 56 & 64.)-10- Again, not
only do the documents cited by Mr. Harrop not support his sweeping assertions,
they are simple hearsay and are inadmissible. The Court should therefore strike
Exhibits 38, 41, 44, 52, 56, 58 and 64 cited in the Harrop Declaration and
paragraphs 37-39, 54 and 69-71 of the declaration that rely on those
documents.

As a final matter, SCO has also attached 11 exhibits (Exs. 24, 25A, 33, 36, 42,
50, 51, 61, 63, 65, S-3) to its opposition brief that are not referenced
anywhere in SCO's brief or in any of the three witness declarations submitted by
SCO. As these materials are plainly extraneous to the record, they should be
stricken as well.

[ Reply to This | # ]

Is there an echo in here?
Authored by: gdeinsta on Tuesday, August 24 2004 @ 09:11 PM EDT

Didn't we just read this memorandum? No, wait, it was about the use of Sontag's declaration in SCOG's discovery motion (this one here is about the use of Sontag's and others' declarations in IBM's CC10 PSJ motion). The same Sontag declaration? If so why can't IBM just strike down all the improper portions of it once and not have to do it separately for each context? Or is it a different declaration? Or a refiling of the same declaration? Arrgh...

In any case SCOG's legal team has displayed a pattern of behavior here. It has repeatedly filed, and used in arguments to the court, quasi-declarations that reached whatever conclusions it needed while carefully avoiding attesting to falsities, i.e. perjury. It is just not credible that this is due to incompetence, if only because it takes competent legal advice to skate around perjury. To this NAL this behavior seems like abuse of process and grounds for sanctions against SCOG's lawyers.

[ Reply to This | # ]

Echoes - IBM's Steamroller Just Keeps on Rolling
Authored by: webster on Tuesday, August 24 2004 @ 09:14 PM EDT
I got to read the motion to strike and supporting memo before I read PJ's
article. Her article is accurate, humorous and highlighted exactly what was on
my mind after reading it. It is reassuring because often all we have time for
is PJ's summaries. You can rely on them.

IBM is certainly making it hard to accept SCO's positions on these motions. All
the judge has to do is say there is an issue of fact and deny the PSJ. The
issue SCO raises is attacked in substance and admissibility. IBM is thoroughly
exposing SCO "incompetence" at every level. The judge can not rely on
their arguments, research, and factual assertions.

What should SCO do? Oppose, cure, or a little bit of both? SCO has to worry
that IBM will move to strike something from their opposition to IBM's motion to
strike!

IBM is making them pay for not disclosing any code or experts.

This has become an embarassment. Disgraceful loss is imminent. The SCO
lawyers, ethically chained to the oars, slunk forward in their heartless and
thankless drudgery. They are living someone's lie. They jerk their oars in a
desperate hope that they will hit sand before they sink or crash on the rocks.
The unspoken wish attends their days, "Judge, stop making me repeat myself.
Put an end to this thing."

So now they have to overcome the motion to strike. Then defeat the MPSJ, and
then the renewed MPSJ after the judge tells IBM what he wants. I think SCO folk
would like to redact their lives.


---
webster

[ Reply to This | # ]

And the "work product" comes back to bite TSCOG
Authored by: tangomike on Tuesday, August 24 2004 @ 09:29 PM EDT
Back at the June 8 hearing, TSCOG complained about IBM withholding an affidavit,
and IBM responded:

"He complains about not receiving the declaration of David Fraser.[sic]
Until that declaration was used at his deposition this morning, it was our work
product. They have sat for six-plus months on a variety of affidavits which are
disclosed by them publicly. We specifically asked for them and never got them.
They never asked for that affidavit, and they didn't get it because until it was
used it was work product."

After this there was an agreement in court between IBM and TSCOG about future
such affidavits. I said at the time that it looked like IBM set it up to prevent
TSCOG from using similar tactics later on. Here IBM calls them on it:

"Mr. Sontag insists in his declaration that 'SCO and its experts' (whom he
does not identify) have undertaken certain code comparisons, but pointedly does
not describe how he was involved in such activities, if at all. . . . To date,
SCO has not identified any of its expert witnesses, and has refused to produce
any of its experts' work that it has described publicly and in its discovery
responses.. . . SCO should not be permitted to 'selectively disclos[e]' its
experts work. See Quark, Inc. v. Harley , Nos. 96-1046, 96-1048 & 96-1061,
1998 U.S. App. LEXIS 3864, at *8 (10th Cir. Mar. 4, 1998)(attached hereto as
Exhibit A). '[A] litigant cannot use the work product doctrine as both a sword
and shield by selectively using the privileged documents to prove a point but
then invoking the privilege to prevent an opponent from challenging the
assertion.' . . . If SCO has retained experts to perform such work, then SCO
should have submitted their declarations in opposition to IBM's motion. If SCO
has not done so, or has done so but does not yet wish to disclose them, then it
may not attempt instead to introduce such testimony through individuals who it
will not -- or cannot -- qualify as experts."

Is this a "Gotcha!" or what?




---
The SCO Group - Auto-retro-phrenology in action!

[ Reply to This | # ]

scenes a faire
Authored by: Anonymous on Tuesday, August 24 2004 @ 10:14 PM EDT
This is a phrase used by IBM on page 11. As I understand the concept so far, it
means that if a problem is solved by an obvious solution then the original
author of the solution cannot claim copyright infringement when another author
solves the problem using the same obvious solution. If only this concept could
be extended to patents !!

Writing open source code, it bothers me that as I write something I consider
original can in fact be infringing on someone else's patent. I am encouraged
not to research patents to check for the infringement because then I could be
liable for double (or is it triple) indemnity. Also, I am told, only patent
lawyers can tell you for sure if your code is infringing on a particular patent.
In my view, it's just best to look the other way and hope you don't get called
on it. So much for the original impetus for the patent implementation.

[ Reply to This | # ]

Good thing IBM's reply is priveledged
Authored by: overshoot on Tuesday, August 24 2004 @ 10:32 PM EDT
Just reading the table of contents, this sucker would be actionable otherwise. That's the nastiest language I've ever even heard of in legal papers.

My reading (and I'd really appreciate knowledgable comments) is that this is practically begging the Court to institute Rule 11 inquiries on its own. If not, I really expect to see IBM do it themselves once the main points are settled.

Now: I know that Rule 11 is rarely invoked by the courts, but is this a poster child or what?

[ Reply to This | # ]

Where are Didiot's and Endearly's depositions?
Authored by: kawabago on Tuesday, August 24 2004 @ 11:00 PM EDT
Or maybe they didn't really see proof of infringment after all. Maybe they
lied.

[ Reply to This | # ]

Note page 4 of the motion
Authored by: AllParadox on Tuesday, August 24 2004 @ 11:16 PM EDT
Look at page 4 of the motion, not the memorandum in support, not the overlength
request.

Note that this was "hand-delivered" to the offices of Hatch, James.
However, the IBM attorneys apparently trust the U.S. Post Office to deliver
copies to Miami, Florida (pronounced "Flaw-da") and to Armonk, New
York.

To me, this is the surest sign of an over-the-top sleazy lawyer. I have not
dealt with the Hatch firm, so this is not personal knowledge.

However, you only have to get burned twice by sending something to counsel, only
for them not to receive it. Everyone else receives their copy, within 18 hours,
but that one firm just never seems to get anything from the Post Office. Once
that game starts, the only way to play it is by courier, where the receiving
firm has to sign for the package when they get it.

When I see something like this, it makes my skin crawl and I just instinctively
have to go wash my hands. Like now.



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

[ Reply to This | # ]

IBM's Steamroller Just Keeps on Rolling
Authored by: blacklight on Tuesday, August 24 2004 @ 11:26 PM EDT
"SCO will be shown no mercy. If they fail to dot an i, IBM will call them
on it, with a motion and oral argument requested, all of which costs money to
respond to and deal with." PJ

Memo to SCOG: thou shalt not play water polo with a school of hungry great
whites.

[ Reply to This | # ]

My favorite citation from the Memorandum
Authored by: jfw25 on Tuesday, August 24 2004 @ 11:41 PM EDT
Safetech Int'l, Inc. v. Air Prods. and Controls, Inc., No. 02-2216, 2004 U.S. Dist. LEXIS 2173 at *7 (D. Kan. Feb. 3, 2004) (attached hereto as Exhibit B) ("Rather than setting forth facts based on personal knowledge, the affidavit is littered with unsubstantiated statements and legal conclusions. The Court has disregarded all conclusory, self-serving so-called facts in its determination of the uncontroverted facts material to this Order.")
I think that IBM has not only supported their argument here, but given a very broad hint of just exactly what they think of SCO's case in general.

[ Reply to This | # ]

At least 13 ways for SCO to lose
Authored by: Anonymous on Tuesday, August 24 2004 @ 11:59 PM EDT
This list may be incomplete, but it as a first pass, it is a list of all the ways SCO could lose on IBM-CC-10. SCO lose if they lose on any of one these.

Procedural


1. Local Rule 56-1(c), DUCivR 56-1(c) - Improperly challenging IBM's undisputed facts with a counterstatement of facts

2. Failure to authenticate exhibits

Affidavits excluded:

3. Rule 37(b)(2) sanction, exclude Gupta, for previous non-production is for facts to be determined against SCO

4. Rule 37(c)(1) sanction, exclude Gupta, because of failure to respond to properly interrogatories (by not producing Gupta earlier)

5. Affidavits (Sontag and Gupta) not based on personal knowledge

6. Affidavits (Sontag and Gupta) offer opinion testimony by non-qualified experts

7. Exclude Gupta and Sontag, even if he's an expert, because he doesn't establish why or how

8. Exclude Gupta, even if he's an expert, because he doesn't explain his methodology

Affidavits insufficient:

9. Gupta Affidavit insufficient as matter of law even if admitted (ignores Abstraction-Comparison-Filtration) and fails as a matter of law [to win by this one, IBM must win all of (a) to (e), for one reason (i) *or* another (ii)]
(a) (i) RCU/ULS comparison is broken (not raw code, and raw code doesn't show substantial similarity)
(a) (ii) RCU/ULS, focuses on methods, etc (ignores ACF)
(b) (i) IPC comparison is broken (not raw code, and raw code doesn't show substantial similarity)
(b) (ii) IPC comparison focus on public domain (ignores ACF)
(c) (i) ELF dictated by scenes a faire (ignores ACF)
(d) (i) Header/interfaces not part of Linux kernel
(d) (ii) Header/interfaces concern non-protectable elements (ignores ACF)
(e) (i) Sys V init not part of Linux kernel
(e) (ii) Sys V init concern non-protectable elements (ignores ACF)

10. Gupta Affidavit fails to establish code is significant "significant"

SCO's copyrights



11. Insufficient to prove they own valid copyrights (untimely registrations do not count even as prima facie evidence) SCO's rule 56(f) plan

(I'll assume just saying discovery isn't complete doesn't make it, IBM seems to have ample precedent for this)
12. SCO didn't submit the experts reports in opposition ("If SCO believed it requried expert testimony to create a question of material fact, then it could (and should have) submitted admissable expert testimony")

13. It won't provide the proof if were allowed, because AIX and Dynix code (etc) are irrelevant to comparing Linux and System V

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Kernighan
Authored by: Anonymous on Wednesday, August 25 2004 @ 12:29 AM EDT
Boy, IBM really is pulling out the big guns -- they have Brian Kernighan as
their expert witness. I'd love to read his declaration -- though I fear it'll
turn out to be sealed.

[ Reply to This | # ]

IBM's Steamroller Just Keeps on Rolling
Authored by: jim Reiter on Wednesday, August 25 2004 @ 12:34 AM EDT
However, since Novell has waived, for TSG, the right to pursue these claims
against IBM, a fact that I do not believe TSG has addressed yet, this all
doesn't amount to very much. 4.16 (b) is the 800 lb gorilla at this party.

Until TSG addresses Novell's 4.16 (b)rights and overcomes them, as if they
could, TSG is dead in the water.

If the judge believes that Novell would prevail in enforcing its 4.16 (b) rights
in the IBM case he's going to stop this thing here. IBM gets its PSJ. TSG gets
to sue Novell again this time over 4.16 (b). IBM gets to follow its copyrights
claim.

[ Reply to This | # ]

Transcriptions - volunteers
Authored by: Thomas Frayne on Wednesday, August 25 2004 @ 12:52 AM EDT
Transcriptions contains OCR'd text of IBM-247, IBM-256, and IBM-253. I am now correcting OCR errors. I also have OCR'd IBM-254-SCO-Reply-On-Dismiss-Motion, and will post the result as a response to this note.

I need help in converting the files to html. If anyone can help with this, please email me, so I can attach one of the documents to a response.

Any files that are not taken will be sent to PJ.

[ Reply to This | # ]

Doesn't SCO have a point on the 10th CC?
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:10 AM EDT
The last paragraph of IBM's 10th Counterclaim says:

IBM is entitled to a declaratory judgment pursuant to 28 U. C. 9 2201 that IBM does not infringe, induce the infringement of, or contribute to the infringement of any SCO copyright through its Linux activities, including its use, reproduction and improvement of Linux, and that some or all of SCO' s purported copyrights in UNIX are invalid and unenforceable.

SCO says that without knowing, in detail, what IBM's "Linux activities" are, there is no way that this judgment can be made, without further discovery and probably a jury trial. For all SCO knows, IBM can be actually violating some SCO copyright in their internal use of Linux. How can SCO possibly be asked to they prove a negative at this point? By saying that "its Linux activities, including its use, reproduction, or improvement of Linux..." IBM is clearly not restricting the activities mentioned to being just those things -- IBM's lawyers have been paragons of explicitness in other filings. If they had meant to limit the scope of the counterclaim to just "use, reproduction, or improvement" they would have said exactly that.

Now, if IBM had asked for a declaratory judgment that their public contributions to the Linux kernel didn't violate SCO's copyright, I agree that this would be a slam-dunk case -- all the evidence that SCO needs is either public or available to them. But IBM didn't, in fact, ask for that declaratory judgment.

IBM, IMHO, tries to limit things after the fact in their current memorandum, saying things like "SCO has long been in possession of all the materials it needs to determine whether any code in Linux infringes any code in SCO's allegedly copyrighted material, and has been unable to find any evidence of infringement." True, but perhaps the published Linux source is not all of IBM's "Linux activities?"

Also, IBM's footnote in the current memorandum in support of the 10th CC tries to limit things: The term "Linux" is susceptible to multiple meanings and can be used in different ways. For purposes of its Tenth Counterclaim and this motion, IBM uses the termin its generally understood sense to refer to the core Linux code that is available at http://www.linux.org and is commongly known as the Linux kernel. But, is it really proper for this memorandum to limit the scope of the original pleading? Can IBM legitimately say here, after the fact, that their "Linux activities" really just mean the contribution to code at www.linux.org? I would say that to most people, Linux is what you get in the Red Hat box that says "Red Hat Linux 9.0" on it.

Anyway -- while IBM's memorandum is a beautifully written document, and leaves little question that huge portions of the Gupta, Harrop, and Sontag affidavits should be stricken -- I don't believe that the 10th counterclaim's PSJ is a slam dunk.

Thad Beier

[ Reply to This | # ]

To SCO: Where's the beef?
Authored by: Anonymous on Wednesday, August 25 2004 @ 01:23 AM EDT
As that elderly lady said, "Where's the beef?"

Where are SCO's expert witnesses? Where are the relevent lines of code?

[ Reply to This | # ]

SCO's experts...
Authored by: Anonymous on Thursday, August 26 2004 @ 02:34 PM EDT
...are probably the same experts that recommend stuff on the TV-shops. I don't
think they're stupid enough to commit obvious perjury for money.

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