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| More Filings & a Hearing Set on 2 IBM Summary Judgment Motions for Dec. 9 |
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Friday, August 27 2004 @ 07:24 PM EDT
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More, more, more.
First, a hearing is set for Judge Kimball to hear oral argument on December 9 at 2:30 on the IBM Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (8th Counterclaim) and its Motion for Partial Summary Judgment on its Breach of Contract Claims. Update: I misread the date, and I was thinking European or something. Sorry for the confusion. My mom had surgery yesterday, and she's doing really well, but I'm a bit tired and plenty distracted.
Both sides have filed more documents: The schedule on the other motions, as best I can make out, goes like this: On Sept. 14, you have IBM's Motion to Strike the Declaration of Christopher Sontag and SCO's Motion to Compel Discovery before Judge Wells. That's SCO's motion in their eternal quest to see all of IBM's AIX code throughout the ages. Then on Sept. 15 you have SCO's Motion to Dismiss or Stay IBM's 10th Counterclaim.
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| Authored by: Anonymous on Friday, August 27 2004 @ 08:18 PM EDT |
You Know the drill.
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Black - White .. nah.. Grey - Gray[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 08:20 PM EDT |
For people who are unclear on a concept
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Black - White .. Nah.... Grey - Gray
ShadowHawk[ Reply to This | # ]
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- New bunch of trolls - Authored by: Anonymous on Friday, August 27 2004 @ 08:36 PM EDT
- Off Topic - How likely dates won't change? - Authored by: Totosplatz on Friday, August 27 2004 @ 08:56 PM EDT
- OT: Microsoft: Hackers Wouldn't Bother To Spoof SP2's Security Center - Authored by: johan on Friday, August 27 2004 @ 09:22 PM EDT
- What enables SCO to continue their case without evidence? - Authored by: brian-from-fl on Friday, August 27 2004 @ 10:37 PM EDT
- Progress Update - Authored by: Minsk on Friday, August 27 2004 @ 10:53 PM EDT
- California sues Microsoft for antitrust--again - Authored by: Brian S. on Friday, August 27 2004 @ 11:09 PM EDT
- OT: a pleasant thought - Authored by: Anonymous on Friday, August 27 2004 @ 11:37 PM EDT
- MS vowing to release shorter Longhorn - Authored by: tizan on Saturday, August 28 2004 @ 01:33 AM EDT
- Our prayers go with you and your mother, P.J. - Authored by: AllParadox on Saturday, August 28 2004 @ 01:38 AM EDT
- Off Topic - Authored by: Anonymous on Saturday, August 28 2004 @ 01:42 AM EDT
- Off Topic - Authored by: Dark on Saturday, August 28 2004 @ 06:56 AM EDT
- Huh??? - Authored by: Anonymous on Saturday, August 28 2004 @ 01:21 PM EDT
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| Authored by: kberrien on Friday, August 27 2004 @ 08:20 PM EDT |
So I take it September is going to be a good month.
Popcorn, get your Popcorn here![ Reply to This | # ]
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- Popcorn - Authored by: bcomber on Saturday, August 28 2004 @ 03:19 AM EDT
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| Authored by: Anonymous on Friday, August 27 2004 @ 08:23 PM EDT |
Trolls & AstroTurfers
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Black - White .. Nah.. Grey - Gray[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 08:27 PM EDT |
Posted as children are my latest attempts to reverse engineer the declarations
Just to add to the confusion, SCO has two declarations by Sontag, his July one
(the one that IBM moved to strike) and a supplemental one in August. It isn't
always absolutely clear (especially in 265) which declaration is referred to,
particularly on one point which I think is in the supplemental declaration, but
which I am not certain
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: Steve Martin on Friday, August 27 2004 @ 08:39 PM EDT |
I'm not quite clear on why he would set it for several days
before all the other motions, but so it is.
Perhaps
(and this is just a guess or perhaps wishful thinking) Judge Kimball figures
that, if IBM wins both motions for PSJ, that will pretty much make all the other
motions moot. Juducial economy and all that stuff...
---
"When I say
something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 08:50 PM EDT |
SCO, on pg. 10 of SCO's Memorandum in Opposition to Defendant IBM's Motion to
Strike the July 12, 2004 Declaration of Chris Sontag, makes the following
claim:
Mr. Sontag's declaration is ... not offered as an "expert"
opinion.... [The] purpose of the declaration is to ... make certain
common-sense observations about [the documents introduced] based on Mr. Sontag's
personal knowledge of the field.
Now, my understanding is that that
latter clause is essentially a by-the-book definition of what constitutes an
"expert opinion", since it is not direct personal knowledge of the facts of the
case itself. What am I missing?
[ Reply to This | # ]
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| Authored by: gdeinsta on Friday, August 27 2004 @ 09:03 PM EDT |
The hand-waving starts right away in IBM-265 (defending the Sontag
declaration):
...rudimentary, common-sense observations of an
experienced industry participant that IBM, one of the most sophisticated
computer companies in the world, would never deliberately make its internal
operations as inefficient as IBM now tells the court they
are.
This is the same IBM that is supposed to be so inept it
couldn't possibly have written enterprise-class operating system code! IBM's
lawyers are going to have fun quoting that bit in subsequent filings.
And
of course "rudimentary, common-sense" is a dead giveaway. It's just another way
of saying "It's obvious! Can't you see it? You can't? Well then you're
stupid!"
Then the body of argument hinges on wilfully misinterpreting the
word "release". SCOG cites the CMVC manual, with a quotation that says very
clearly that the purpose of CMVC is to permit the reconstruction of "release
versions" - but then uses the word "release" as though it meant any
version of a file. IBM has in fact already given SCOG the source for every
release of AIX, but SCOG is asking for "all intermediate versions", then
trying to gloss over the difference between a release and an intermediate
version.
Look at it this way. A publisher puts out various editions of a
book. When asked the publisher can easily produce all published editions of the
book, because at publication they were all filed away by edition number. SCOG,
having received all editions, is now claiming that since the publisher's filing
system can supply published editions it must also be able to supply all
manuscripts. And they argue the point by waving their hands and referring to
manuscripts as editions, even though the manuscripts were never
published, don't have edition numbers and are not necessarily even in the
files. [ Reply to This | # ]
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| Authored by: CyberCFO on Friday, August 27 2004 @ 09:14 PM EDT |
It seems to me as I read these latest SCO documents, that every time they file a
document, they spend an inordinate amount of time arguing why they need access
to the IBM source control system, rather than argue about what the memo is
supposed to be about. I may be missing something because IANAL, but they
certainly believe that they will have it made if they can get their hands on
that system and are doing everything in their power to get it, including taking
advantage of the motion practice briefings.
Does anybody else see this?[ Reply to This | # ]
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| Authored by: jog on Friday, August 27 2004 @ 09:15 PM EDT |
Docket# 211-2 on [190-1] Sept/2
Docket# 223-2 on [190-1] & [212-1] Sept/14
190-1 is SCO 6/July/04 renewed motion to compell.
212-1 is IBM motion to strike Sontag Decl.
I have been expecting a change in one or the
other for a week. Do I not see what I think
I see?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 09:17 PM EDT |
"The court shall not strike the affidavit, but shall simply disreguard
those portions of the affidavit not based on personal knowledge"
Now Sontag has "personal knowledge" of IBM CMVC?
Did he hack into IBM in the past?
Also they now say they only asked for access to the AIX information in CMVC;
In truth they asked for root access, to see everything IBM ever thought of
creating[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 09:48 PM EDT |
Looking through IBM-265 (linked in the article at the top of this page), SCO
demands IBM turn over an essential duplicate of its CMVC system which contains
its AIX and basically every other piece of software IBM has made and is making.
Assuming SCO is, based on its actions and statements over the last 2 years,
willing to do illegal and underhanded things to achieve its aims, is it not a
possibility that SCO could copy this information and turn it over to IBM's
competitors (perhaps in return for another payoff) so that said competitors can
study and/or steal the software code in an attempt to counter IBM in the
marketplace?
And if so, what safeguards are in place to prevent such a thing from happening,
again assuming that SCO is on a suicide mission and will do everything it can to
harm IBM, Linux and Open Source in its death throes?
Somehow, I don't think a wrist-slap or a warning from the court not to do this
would be effective.
[ Reply to This | # ]
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| Authored by: StLawrence on Friday, August 27 2004 @ 09:55 PM EDT |
The wheels of justice usually turn at such a slow rate that they often
appear not to be moving at all. Although IBM recently has demonstrated
that they're going to fight with much vigor, that won't necessarily speed
things up. Each new filing has to be considered by the court and
responded to by the opposing side, and that means more delays.
But if we look at the Big Picture, that's not necessarily a bad thing.
This court case has been very very good for Linux in particular and
for Open Source in general. Lots more people have heard about Linux,
and "FUD" as a new word is rapidly approaching Scrabble-legal status.
I don't know anyone who believes anything Microsoft says any more.
Not many people/companies are being fooled by the SCO/Microsoft
tripe. As things are going, this court case is resulting in ever-increasing
exposure, validation and respect for Linux. In my opinion, the longer
this drags on, the better. And personally, I really don't mind seeing
SCO's eradication be slow and excruciatingly painful for McBride & Co.[ Reply to This | # ]
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| Authored by: gdeinsta on Friday, August 27 2004 @ 10:01 PM EDT |
In IBM-261,
IBM's
Opposition to SCO's Ex Parte Motion for Leave to File a Supplemental Memorandum
Regarding Discovery,
IBM's lawyer says that SCOG's lawyer violated IBM's
attorney-client privilege by keeping copies of two privileged documents, after
IBM had informed SCOG that they were privileged, and then filing them as
exhibits to a motion. How serious an offence is this?
Now we know why
the motion was sealed anyway - it must have been sealed at IBM's request. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 10:10 PM EDT |
I'll just go through SCO's Sontag document:
Preliminary Statement:
SCO: If you give me world + dog as applies to AIX and Dynix code from its
respective revision control systems, it will
1. Show that the contract should be interpreted like SCO thinks it should,
because what was SystemV eventually, over the course of about a decade, probably
became what is AIX now (we think), and
2. It will be really easy for IBM to pull that stuff out of CMVC because many
weeks isn't quite as long as many, many months is.
Reality:
1. What the heck does code that would NEVER pass the filtration test have
ANYTHING to do with how the contracts are interpreted, especially in light of
what IBM and AT+T say about the contracts, and
2. IBM hasn't been ordered to produce what they're whining about. Whether it's
many months, many weeks, or a magical server fairy can make it appear in a
single day, you multiply that by what the court has ordered IBM to produce, and
you still get ZERO.
SCO: We don't even need Sontag to prevail on our fishing expedition. Even so,
Sontag helps us by:
1. Sontag read some IBM sales papers about CMVC, and therefore is an expert and
can say beyond a reasonable doubt that it's easy for IBM to hand over world+dog,
and
2. If IBM was lying in its sales copy, why would it be using it's own system?
Sontag is obviously a genius.
Reality:
1. IBM says you can easily pull specific builds and releases out of the system.
SCO wants every contribution ever made, whoever made it, for the past TWENTY
YEARS. I've only been using CVS for a few months now, and even I can see how
stupid that is.
2. See above. What SCO wants and what IBM was selling are two different
things.
SCO: IBM's expert, Ms. Thomas, doesn't even try to combat the genius of Sontag!
Now, the documents are TOTALLY ADMISSABLE. And, we thing the text written on
them is kinda admissable too. And if Ms. Thomas is such an expert, then why did
IBM say it couldn't be done? Why does IBM contradict itself?
Reality: Ms. Thomas doesn't answer Sontags claims because, to an ACTUAL expert,
they're stupid. Even a retarded monkey can see that producing TWENTY YEARS
worth of changes that the court hasn't ordered you to produce is going to be an
undue burden. As for the rest of it, see above.
Background
SCO: IBM says that it's easy for them to comply now. Heck, they didn't even
whine about Dynix. Yadda Yadda Months VS. Weeks again. And we requested it 60
months ago! And, Ms. Thomas just says that it's obvious that Sontag has never
used CMVC, but not why, so obviously she's wrong! And here's a quote from an
IBM user guide that says CMVC is great for keeping track of "exact versions
and components of any previous release", see? And it's even an automatic
function! If it didn't, it'd be useless!
Reality: Going from months to weeks doesn't make it much easier, and just
because you requested it 60 months ago doesn't change the fact that the court
hasn't ordered it yet. And, you should feel yourselves lucky that Ms. Thomas
didn't use the opportunity to evicerate the credentials of Mr. Sontag. And,
just in case you missed it the first two times I typed it, getting a SINGLE
RELEASE back from CMVC is much different than getting EVERY INDIVIDUAL CHANGE
EVER MADE FOR THE PAST TWENTY YEARS.
Arguement:
SCO: A. It isn't burdensome, we're supposed to get it, and we need it.
Reality: Yes it is, no, you're not, and no you don't. For reasons above, and
because code written before the SysV release is IRRELEVANT, unless IBM has some
kind of time machine to license the code you bought the rights to before it was
written.
SCO: B. The Sontag declaration is based on personal knowledge. Personal
knowledge, by the way, contains inferences and opinions. Sontag read the
manual, and he kinda has a background in CS, and supervised a project or two
that used a version control system. So, we think he's an expert.
Reality: If reading a book is personal knowledge, that would make me the
supreme master of all things carnal. In reality, I haven't even had a date in
years. I mean, really, I'm taking the time to write this out, aren't I? I've
got a degree in CS, and they never taught me how to use a version control
system, I had to learn that on my own. And, just because you SUPERVISE somebody
else using a COMPLETELY DIFFERENT version control system doesn't make you
qualified to talk about IBM's internal cvs system. Spend a few years in the
trenches before you open your trap, Sontag.
SCO: C. If the court really wants an expert, Sontag is your man.
Reality: Not even close. Just because you supervise someone doing something
doesn't mean you can do it, and it certainly doesn't mean that you can do it as
well as the person doing it daily can. That goes double if your talking about
something you've NEVER ACTUALLY USED YOURSELF.
SCO: D. IBM's request to strike the Sontag declaration is meritless. Oh, and
if you do decide to strike some things, please be gentle.
Reality: The only parts of Sontag's declaration that are admissable are when he
says who he is, and even that is questionable.
SCO: Conclusion - Don't allow that IBM thingy, or if you do, let us get our
claws into Ms. Thomas.
Reality: Sontag's declaration isn't worth the paper it's printed on, although
I'd love to see Ms. Thomas make you look like the bunch of gibbering idiots and
lying weasels that you are.
Paul C.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 10:12 PM EDT |
In response to SCO's "renewed" motion to compel, IBM pointed out that
the CMVC information would be millions of pages, and that as SCO was apparently
unable to process industry standard tapes, converting to DVDs would be even more
work.
In IBM-264, SCO replies, along the lines of "You aren't seriously proposing
to print all the source code out", and "We only want the information
in industry standard format as kept in the normal course of business."
Is it possible for something to be triply ironic? If so, IMHO this is... in
light of the fact that SCO doesn't take tapes, IBM never even proposed to print
the stuff out, and SCO is the one that printed out then later scanned their
source code
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: Steve Martin on Friday, August 27 2004 @ 10:12 PM EDT |
In IBM-265 "Memorandum in Opposition to IBM's Motion to Strike", TSG is
still singing about how they are practically entitled to the entirety
of CMVC. Here's a new wrinkle, though:
"First, the discovery
sought is indispuably relevant: it contains or will lead to the discovery of
admissions impeaching the contract interpretations IBM offers in its pending
summary judgment motion; ..."
Huh? Since when does source code
contain admissions of anything? Is there going to be some smoking-gun memo
buried in the comments, fer cryin' out loud? And how in the world is the source
code of AIX and Dynix going to impeach the interpretations of the contracts that
are given by the guys who wrote and signed the things?
---
"When I
say something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: PolR on Friday, August 27 2004 @ 10:28 PM EDT |
SCO keeps harping that they need Linux documents from IBM's highest executives
and board. IBM keep saying there isn't any that is appropriate. (I think the
proper legalese is "responsive")
Something is fishy here. SCOG may have a minor point that this absence of
documents at the highest level for a multibillion dollars strategy is not
believable. On the other hand such documents would be highly sensitive and I
can't imagine IBM giving them away to an unsubstantiated fishing expedition
without a fight. In fact if the law allows a competitor to seize such documents
with only phony claims as a basis, something is wrong.
Should we dig out the tinfoil hat and say corporate espionage here? On the other
hand we have not seen what IBM acually handed over. They may have genuinely
given everything.[ Reply to This | # ]
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| Authored by: jim Reiter on Friday, August 27 2004 @ 10:31 PM EDT |
EIGHTH COUNTERCLAIM
Copyright Infringement
154. IBM repeats and realleges the averments in paragraphs 1 through 153, with
the same force and effect as though they were set forth fully herein.
(Averments -> A positive statement of facts.)
In paragraphs 1 –153 the interesting paragraphs are 83 – 96, Novell’s 4.16 (b)
rights. Wherever TSG goes, 4.16 (b) is sure to go. These IBM lawyers are a
clever bunch.
M. Novell's Exercise of Rights (para 83 - 96)
You can see why TSG does not want to produce a Purchase Agreement with Santa
Cruz Operations, Inc (SCOI). The SCOI/Caldera Purchase Agreement leads back to
the SCOI/Novell Purchase Agreement.
Did SCOI sell something that they (SCOI) didn't own? Is TSG trying to bluff
people into thinking that they (TSG) own something SCOI didn't sell them? Did
SCOI include the SCOI/Novell Purchase Agreement in their (SCOI) Purchase
Agreement with Caldera?
So many questions, so little time.
83. On June 9, 2003, in response to SCO's actions, and pursuant to its
obligations under Amendment X, Novell stated its belief that SCO has no right to
terminate IBM's Unix license which is perpetual and irrevocable. Novell
therefore exercised its retained rights to AT&T's UNIX System V to put a
stop to SCO's misconduct. Under Section 4.16(b) of the Asset Purchase Agreement
between Novell and Original SCO dated September 19, 1995 ("APA"),
attached hereto as Exhibit N, Novell directed SCO to "waive any purported
right SCO may claim to terminate IBM's [Unix] licenses enumerated in Amendment X
or to revoke any rights thereunder, including any purported rights to terminate
asserted in SCO's letter of March 6, 2003 to IBM". A copy of Novell's June
9, 2003 letter is attached hereto as Exhibit O.
84. When SCO failed to take the actions directed by Novell, on June 12 2003
Novell exercised its rights under Section 4.16(b) ofthe APA to waive and revoke,
in SCO' stead, any purported right SCO claimed to terminate IBM' s licenses. A
copy of Novell' June 12 2003 letter is attached hereto as Exhibit P.
85. Notwithstanding the fact that IBM' s rights to UNIX System V are expressly
"irrevocable" and "perpetual" under Amendment X and the fact
that Novell has exercised its right to waive, in any event, any contractual
rights SCO claims IBM violated, SCO nevertheless purported to terminate IBM' s
licenses on June 13 2003. Moreover, even assuming (contrary to fact) that IBM' s
rights were terminable, at no time prior to SCO' s purported termination did SCO
comply with its obligations under the IBM Agreements to identify the specific
acts or omissions that SCO alleges constitute IBM' s breach, despite IBM' s
demands that SCO do so.
86. Rather, SCO has continued to misrepresent that it can, or will, or has in
fact revoked IBM' s right to use UNIX System V, without disclosing that IBM' s
rights to UNIX System V are not terminable or that Novell has exercised its
right to waive any contractual rights SCO claims IBM violated. In an interview
with Information , 2003, for instance, SCO falsely stated that it has the right
to revoke IBM' s license and order the destruction of every copy of AIX.
87. Novell additionally invoked its rights under Section 4.16(b) of the AP A to
correct SCO's illogical and unsupported interpretation of the IBM Agreements and
the Sequent Agreements upon which its breach of contract claims are based, and
to explicitly waive and revoke any purported right SCO had to assert a breach
based on this wrong interpretation.
88. On October 2003 Novell informed SCO by letter that its position that IBM
original code contained in AIX "must be maintained as confidential and
subject to use restrictions is contrary to the agreements between AT&T and
IBM including Amendment X, to which Novell is a party". A copy of Novell's
October 7, 2003 letter is attached hereto as Exhibit Q.
89. According to Novell, the IBM Agreements provide "a straightforward
allocation of rights (1) AT&T retained ownership of its code from the
Software Products ("AT&T Code ), and the Agreements' restrictions on
confidentiality and use apply to the AT&T Code, whether in its original form
or as incorporated in a modification or derivative work, but (2) IBM retained
ownership of its own code, and the Agreements' restrictions on confidentiality
and use do not apply to that code so long as it does not embody any AT&T
Code. Novell concluded that any other interpretation "would defy logic as
well as the intent of the parties".
90. Novell therefore directed SCO to waive any purported right to assert a
breach of the IBM Agreements based on IBM' s use or disclosure of code that does
not contain any of AT&T's UNIX System V code.
91. When SCO failed to follow Novell' s instruction, on October 10, 2003 Novell
expressly waived and revoked any purported right of SCO's to assert a breach of
the IBM Agreements based on IBM's use or disclosure of code that does not
contain any UNIX System V code. A copy of Novell's October 10, 2003 letter is
attached hereto as Exhibit R.
92. On February 6, 2004, Novell similarly directed SCO to waive any purported
right to assert a breach of the Sequent Agreements based on IBM' s use or
disclosure of code contained in Dynix that does not contain any UNIX System V
code. February 6 2004 letter is attached hereto as Exhibit S.
93. In the letter, Novell reiterated that SCO' s interpretation of the Sequent
Agreements, like its interpretation of IBM Agreements, was wrong and
"plainly contrary to the position taken by AT&T, as author of and party
to" such agreements.
94. When SCO failed to follow Novell' s instruction, on February 11 2004 Novell
expressly waived any purported right of SCO's to assert a breach of the Sequent
Agreements based on IBM's use or disclosure of code that does not contain any
UNIX System V code. A copy of Novell's February 11, 2004 letter is attached
hereto as Exhibit T.
95. Despite these proper instructions and waivers by Novell, SCO continues
improperly to maintain that IBM has breached the IBM Agreements and the Sequent
Agreements by contributing its original code to Linux.
96. In addition to its waivers of SCO's purported rights with respect to IBM
Novell has additionally asserted publicly that it owns the copyrights for UNIX,
and that SCO's registration of copyrights for UNIX was improper.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 27 2004 @ 11:03 PM EDT |
Wasn't this one of those signed "information and belief" and not
"true and factual?" ... that is, an improper oath on the declaration
for this kind of proceeding? If so, all their blathering is moot in yet another
way.
What was it I think Linus said? "They're so wrong that even if they were
right, they'd still be wrong." Or words to that effect. How fitting
that continues to be.
...D (IANAL ... or I ANAL, both are true)[ Reply to This | # ]
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| Authored by: AG on Friday, August 27 2004 @ 11:15 PM EDT |
SCO is throwing some very nasty stuff towards IBM (contempt of court, lying
in their motions, etc). The tone is beyond hostile and bordering offensive/
abusive. Anybody want to comment on the merit of those claims?[ Reply to This | # ]
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| Authored by: belzecue on Friday, August 27 2004 @ 11:15 PM EDT |
| December 9, huh? Now I know why Lady Justice is blindfolded.
If you get up real close to her you can hear the snoring. The blindfold gives
out the preferred 'Go away, I'm busy' vibe, so nobody interrupts nap time.
I
know, I know... the wheels turn slowly to give each party enough time and
opportunity to make their case.
We want justice now, but we want it to be
fair. In real life the two are mutually exclusive. That's why we have film
cops who throw in their badge and simply 'get the job done'. To quench my
thirst for some speedy justice, I'm off to watch Dirty Harry. [ Reply to This | # ]
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| Authored by: NastyGuns on Friday, August 27 2004 @ 11:21 PM EDT |
Not sure if anyone else has noticed, IBM notes in some of their filings, that
SCOG is making a lot of flurries and filing overlength memo's. Add to that by
taking a look at #264 (SCOG's Reply Memo to IBM Response to SCOG's Renewed
Motion to Compel) and tell me if it's just me and my imagination, but does it
not seem that every so many lines that SCOG is using a smaller font for some
lines of text than what the norm is through the rest of the document? While, an
individual line or two doesn't make much difference, over many pages those extra
character spaces start adding up. Neat little trick.
Of course if could
just be a sign of a couple of things:
- Using MS Word to write the
documents and letting the autoformat dictate the size.
- Yet another
indication of the lack of professional preparation of their filings.
- A
normal and/or standard legal "trick" to get in a couple of extra words beyond
the normal limits of a specific page number allows.
And I'll not leave
out the fact that it could just be the rendering of the scan into pdf format or
my very own eyes playing tricks on me. But page 8 of the indicated pdf sure
seems to support my thoughts.
So, is it just me? ---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back,
please keep me here." Unknown. [ Reply to This | # ]
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| Authored by: rand on Friday, August 27 2004 @ 11:22 PM EDT |
| Sounds like a good title for a Frederick Forsyth thriller. But now we know the
reason Jeremy Evans has been included in the charade. In earlier discussions
it's been pointed out that he is apparently a BYU grad, just admitted to the
Utah bar as of February.
See IBM's Opposition to SCO's Ex Parte
Motion for Leave to File a Supplemental Memorandum Regarding Discovery, page
3.
It seems now that he may be someone's friend or nephew, given a summer
job to do the grunt work of pawing through reams of IBM documents (Ok, maybe
he's just a good, decent young lawyer in search of gainful employment and
experience--but, given the way this case has gone, it seems doubtful.).
He
apparently came across the "smoking gun" memos, and, instead of soberly and
lawyerly taking notice that they were privileged communications with IBM's legal
department, and quietly notifying IBM's lawyers of the mix-up, blabs it up to
Uncle Darl or somebody.
At least it explains how and why a rosy-cheeked
legal virgin would have gotten involved in presenting a declaration to the
court. I hope he gets deposed by IBM; I for one would like to know whether he
was supposed to be one of the legal staff who were supposed to be kept
incommunicado. The fact that he was surveying programmer notes sugests it might
be so.
Can you say, "Oops!" ---
carpe ductum -- "Grab the tape" (IANAL
and so forth and so on) [ Reply to This | # ]
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| Authored by: blacklight on Saturday, August 28 2004 @ 01:35 AM EDT |
Memo to SCOG: flapping your gums and waving your arms won't make your arguments
fly.[ Reply to This | # ]
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| Authored by: AG on Saturday, August 28 2004 @ 02:36 AM EDT |
| I count 8 briefs (probably missed some) by SCO where they ponder on how
badly
they need all iterations of AIX known to man. Even worse, in most of
these
briefs the AIX/CMVS issue is totally off topic. I wonder why SCO keeps
bringing
this up over and over and over and over. Most of us agree that
the
loosing
the upcoming CC10 hearing would be devastating to SCO. For IBM's
CC10 the whole
AIX/CMVS source code discussion doesn't help at all. IBM is
asking for a
declaration of non-infringement.
Copyright infringement is as
the name
already suggest a violation of exactly that: copyright.
SCO's contract
pipe dreams are totally irrelevant. For the sake of this motion,
IBM could
admit that SCO's contract interpretation is valid, that SCO "owns"
all
(I do mean all) code IBM writes, and that AIX
code is in Linux.
That still would not amount to a case for SCO.
For
SCO to prove
copyright infringement, they have to show that they are actually
the copyright
holder. There are two ways to do that: (a) either they wrote the
code, or (b)
they show proof that it was transfered to them. (a) is not going to
fly for
obvious reasons (but by now I do believe SCO would be dumb enough
to try it,
seriously). For (b) the law specifies that there has to be a precise
written
statement of what copyright exactly has been transfered. Some vague
statement
such as "I transfer the copyright of all code I write in the future to
you" is
explicitly not permited by law. The purpose of a written copyright
transfer is
to serve as a clear indication of that transfer so the copyright can
be
enforced properly. Thus, even if SCO was right with its contract
interpretation
(it is not), it would definetively be no infringement at this
point.
Now, SCO could argue that it wants the copyrights transfered to it
by IBM,
but that is an different ballgame and not subject to this motion. Even
if SCO
would win such a claim (in state court, by the way) in the future, IBM's
distribution of Linux up to this point would still be no infringement,
because infringement only begins after the transfer (before that only IBM
could enforce it as current copyright holder). But right now, IBM holds
the
copyright (which SCO can try to contest).
Unfortunately for SCO, its even
worse. IBM doesn't even have to prove
that it
currently owns the copyright of
the code they wrote. Just the fact that there is
a dispute invalidates any
transfer. In doubt, the transfer did not take place
and the original author
(IBM) is in control.
But it gets even better. Kimball found in SCO vs
Novell, that there is no
clear
evidence of a copyright transfer from Novell to
SCO. Again, SCO might have a
case in state court to force that transfer to take
place, but right now there
simply do not have an undisputed title. Which
automatically means that
Novell is the current copyright holder of System
V, to the degree
that System V is copyrightable at all (see public domain
discussion). Thus,
even if System V code was in Linux, it still would be no
infringement SCO
could enforce. It could be a contract issue, but thats
again not the focus of CC10.
Conclusion: Even if SCO "owns" all of AIX,
it cannot show written
prove of
an actually copyright transfer of any AIX code
or even System V code. Thus,
any infringement claims must fail and CC10
must be granted. No
amount of discovery can
change this. IBM could concede
(for the purpose of this motion alone) all the
points SCO is trying to
discover, and SCO would still loose. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 28 2004 @ 02:43 AM EDT |
The problem SCO are facing with their repeated attempts to interpret the
"SOFTWARE PRODUCT" derivative theory from the contract with IBM (actually, that
would be AT&T and IBM) is that the law does not support their
view.
For a contractual term to be valid, both parties must understand
that term to mean the same thing:
Where the parties attach
the same meaning to the terms used in their agreement, the interpretation of the
agreement should be in accord with that meaning even if a third party might
interpret the language differently. (Rest.2d §201(1).)
Here
we have the "old" party, AT&T and their people, including IBM, understanding
things one way and we have SCO understanding things the other way. So, the judge
can believe AT&T and IBM folk and conclude that their interpretation has
bearing. After all, they were present when the contract was made. Or, he can
entertain the following:
Whatever an objective observer
might think, if the contracting parties attach different meanings to the same
term, then neither is bound by the understanding of the other unless one of them
knew or had reason to know what the other understood the disputed term to mean.
(Rest.2d §201(2).)
So, even if the judge were to believe
that parties have attached different meanings, he would have to check if the
"knew or had reason to know" exisited on IBM's behalf. Which is where the famous
$echo newsletter comes in. Without any doubt, this letter makes sure that
the interpretation IBM (and old AT&T folk) are presenting is the correct one
and that they did not know or had reason to know otherwise.
As a matter
of law, SCO are sitting ducks. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 28 2004 @ 05:16 AM EDT |
| "Thinking European"??? [ Reply to This | # ]
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| Authored by: micheal on Saturday, August 28 2004 @ 05:47 AM EDT |
| In the document "SCO's Memorandum in Opposition to Defendant IBM's Motion to
Strike the July 12, 2004 Declaration of Chris Sontag.", end of page 8 and
beginning of page 9, SCO quotes an IBM user guide and specifically underlines
(my emphasis)
"SCM ensures that you keep a historical record of these
release configurations along with the exact versions of all components and
the application itself at each release. This means that you can re-create
exactly any previous release of your application."
Does this mean that
SCO agrees (by ommision) that IBM cannot easily provide interim versions of
files (as opposed to versions that are part of a release)?
---
LeRoy -
What a wonderful day. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 28 2004 @ 06:52 AM EDT |
I misread the date, and I was thinking European or something.
Not having a go at you PJ, but at the stupid way the Americans
handle dates.
Howard (Australian) [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 28 2004 @ 01:59 PM EDT |
One judge has already said NO. Now TSG is ignoring the judge while
pushing very hard to revise the rulings on discovery.
Since TSG has known since February they are losers (I mean, losing these
cases), they are simply shuffling the pea while recycling old lies. By
arguing incessantly about the feasibility of relying on IBM's source
control system, TSG hopes the frustrated judges will forget they already
said NO!
TSG doesn't want any evidence because TSG knows that ANY evidence
will convince a jury that TSG has no case or legal dispute. I view their
actions as another diversionary, stalling, confounding strategy.
Just remember that these people are raking in large sums of cash while
failing, so failure is certainly a certain option after the money is spent.[ Reply to This | # ]
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| Authored by: MadScientist on Saturday, August 28 2004 @ 06:15 PM EDT |
Reading over them these were prepared by some one who for once seems to know
what they were doing. A bit atypical for SCO but ...
+++++++++++++++++++++++
SCO's Reply Memorandum in Support of its Rennewed Motion to Compel.
p12
"... the licence agreements provide that any derivative work based on UNIX
Systme V source code is to be treated as part of UNIX system V under the
agreement, such that the licensee may breach the agreement by distribution any
source code from any such work (that is, from UNIX System V as defined). In
addition to literal source code moreover, the licnce agreements protect the
"methods and concepts" used in Unix System V."
This is the center of SCO's claims. It flies in the face of (1) the affidavits
of those who signed the contacts (2) section 204 of the copyright act and (3)
previous ruling on copyright cases.
Furthermore it is a simple attempt to apply patent standards to copyright law.
This is a echo of Blepp's talk in Germany. This is clearly originating from SCO
and not from the lawyers as they do know better.
This is an attempt to re write the law on copyright and in SCO's favour.
=======
p16 "silly dispute"
An uncommon mistake by the Nazgul. "Silly" is a word that an autoney
friend of mine suggested would be a safe word to describe a pointless dispute. I
was not so sure as I thought it might (as AllParadox has said) come back and hit
the user. It looks like AllParadox (as usual) was right as SCO make quite a play
on this point.
========
p18
There is a quite noticeable shift in tone here. The 10th CC really has SCO
rattled. As commented on here the 10th CC was a master stroke. SCO have been
skewered by this move and cannot really escape its consequences.
+++++++++++++++++
SCO's memorandum in Opposition to DEfendent IBM's Motion to Strike the July 12,
2004 Declaration of Chris Sontag.
p1/2
"... it will lead to the discovery of admissions impeaching the contract
interpretations IBM offer in it pending summary judgement motion; it contains
material showing IBM depended on UNIX to develop products in ways that, under
the contract, prevented the later contribution of all or any part of those
products into Linux;"
Here is the SCO theory again. SCO want their understanding of the AT&T-IBM
contract to take precedence over copyright law, and to convert IBM and Sequent's
efforts to a work for hire. Under US law a work for hire that cannot be
completed in under a year requires a written contract. Nothing in the AT&T
contract says that.
==============
"and it will be necessary to test IBM's own claim to the Court (its Ninth
Counterclaim) that, independent of any Linux issue, nothing in the entire
history of AIX violated SCO copyright ..."
Why? AIX was based at least initially on Unix SysV. Thats what IBM paid the
licence for. There may or may not be any remaining Unix SysV code in AIX but SCO
to make any claim to this must first show
(1) they have the valid copyrights - registration alone will not sufffice
(2) they are claiming copyrights to copyrightable materials only
(3) that thier copyrighted material is indeed in AIX and
(4) IBM did not have permission to use that material.
(5) that the infringing material is a substantial part of the code
(1) is seriously open to question
(2) is seriously open to question - we are not even sure if SCO know the what
parts are not public domain - see the examples D McB showed earlier that were
public domain - Knuth's 1968 code for example.
(3) This is the essence of their discovery request
(4) the licence IBM bought seems to override everything here anyway
(5) when the amout of public domain material is removed from Unix Sys V it is
very debatable if this portion would compromise a substaintail part of AIX
anyway.
The discovery insistence seems to assume away points 1-3 and 5. IMHO the judge
shoudl first direct his attemtion to the IBM licence and then to examine SCO
title to the copyrights. Only then should he ask SCO for the non public domain
material and to quantify it so that it may be compared with AIX. If SCO can do
all these then there may be a case for discovery as they insist.
IMHO this discovery insistence is only SCO tryin to (1) waste time and (2) make
such a nusiance of themselves that IBM might even now buy them out to get them
off the case.
========
p 2
"SCO offered the [Sontag] declaration to demonstrate something else - the
general lack of credibility of IBM's claims about discovery."
The real reason for the Sontag affidavit is now clear. He is not being asked
about his expertese in coding but rather a project manager. He is being ask
about project management in general - and *without* *specific* knowedge of IBM's
project management. This is certainly an arguable case. How relevent it is here
is another days work.
===========
p3
"Mr. Sontag's qualifications to provide the rudimentary, common-sense
perspective."
Meaningless comment
===========
p5
"Since it is clear to me, from reading the Sontag Declaration, that Mr.
Sontag does not have any personal knowledge of IBM's CMVC, or of the time and
effort involved in collection and producing the information sought by SCO, I
will not attempt to itemize and correct all the errors made in the Sontag
Declaration."
Major error by the Nazgul here and well picked up by SCO. Joan Thomas should
have listed the errors by Sontag even if they are dull and boring and obvious to
her. These errors are not obvious to outsiders and that includes the court here.
Sontag does not claim expertese in the use of IBMs systems and might have made
errors but these should really have been listed.
Then agis this was a sealed document and maybe Ms Thomas has corrected this
somewhere else?
=============
Footnote p5
'Ms Thomas does not know Mr.Sontag and has never spoken to him about his
professional background or knowedge of CMVC or similar systems. She is testifing
to her opinion - that which is "clear" to her "from reading the
Sontag Declartion". Althought Ms. Thomas conclusions happen, in this case,
to be wrong, they are a perfectly valid subject for testimony. By IBM's logic,
however, Ms. Thomas entire declaration should be stricken - she neither has not
nor claims any personal knowledge of Mr. Sontag's state of mind whatsoever.'
Nice try by SCO and again a rare mistake by the Nazgul here. Ms Thomas is here
giving her opinion of Mr Sontag's declaration. Here SCO try to twist Ms Thomas
statement into making it sound like Ms Thomas is giving an opinion on Mr
Sontag's stae of mind when he wrote/gave his declaration. Ms Thomas is not I
believe a physician, a psychologist or a psychaitrist and in addition lacking
personal knowledge of Mr Sontag is not in any position to give an opinion as to
the state of Mr Sontags mind. (This is one point I have tried to drive home here
a few times: this *is* the sort of level required to give any sort of opinion on
a state of mind or personality diagnosis.)
Trying to have the declaration stricken from the record by painting it as a
declaration of Mr Sontag's state of mind is a nice try.
It would seem here that either SCO are looking for revenege in having motions to
have material stricken from the record in the DC case and here in IBM or that Ms
Thomas has material damagign to thier case. Given the quality of the material so
far presented by the Nazgul Im pretty sure Ms Thomas' affidavit does have
material damaging to the SCO case.
===========
Virtually the rest of these two documents is a whinge "We want more
time/more discovery or our case will be irreparably damaged." The writing
is of much better quality than we ahve come to expect from SCO and the pick up
on these minor slip ups is quite sharp. Maybe the seniors are getting involved
in drafting these documents after the less than adequate earlier efforts.
---
One of the main reasons the Roman Empire fell was because of the lack of the
numeral '0'. This meant they were unable to terminate their C programmes
correctly.[ Reply to This | # ]
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| Authored by: gdt on Sunday, August 29 2004 @ 03:29 AM EDT |
SCO already have all versions of AIX and Dynix. So SCO's fascination with
CMVS can't be in the code stored there.
I suspect that SCO is looking
for a smoking gun, which is the only route left SCO has to winning some elements
of this case. And that's why it needs the check-in comments and associated
materials (and high on that list would be "engineering workbooks", the
semi-formal notes programmers make about the code they are working
on).
And this explains why IBM is working so hard to stop SCO. Firstly,
to cut off SCO's last good hope. Secondly, you never know those programming
types, they've got a history of putting stupid statements into print (eg, the
Netscape litigation).
SCO have a history of warping the facts to fit
their suit. And you can bet that the engineering notebooks have comparative
benchmarks and compatibility tests.
[ Reply to This | # ]
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