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SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Sunday, August 29 2004 @ 06:41 AM EDT

Here is SCO's Memorandum in Opposition to IBM's Motion to Strike the July 12, 2004 Declaration of Chris Sontag. So they have read what IBM and Randall Davis and Joan Thomas wrote, and this is their response.

Their cases, in contrast with IBM's, take up only half a page. As for IBM pointing out that Sontag was not qualified in his declaration as an expert, SCO responds not by qualifying him but instead says this:

"IBM's Motion is an attempt to prevent the Court from seeing (1) IBM public documents that contradict IBM statements to this Court, and (2) the rudimentary, common sense observations of an experienced industry participant that IBM, one of the most sophisticated companies in the world would never make its internal operation as inefficient as IBM now tells the Court they are."

In saying he is "an experienced industry participant" they acknowledge that he is not an expert. That means they have not countered IBM's primary reason for striking his declaration.

And the rest of the sentence means that they have no evidence, so Sontag, as they characterize it, isn't providing testimony from person knowledge, the only other way he can, but instead gives his "common sense" opinion that CMVC can't work the way IBM says, because they ought to have designed it better than they appear to have done. The rest of the document is just SCO being about as nasty as you ever see in legal documents.

No judge is going to be influenced by such arguments. SCO needs to come up with some facts to place in evidence, not more theories and guesses. And they desperately need to find an expert to counter what MIT's Randall Davis wrote. That may be hard to find, to say the least. First of all, exactly where would you find an expert better qualified than he is? And if you did, how would you get him to agree to uphold your theories in public? Maybe if you could kidnap him and get him very drunk indeed. Or brainwash him, if you had enough time. Failing that, you'd have to do what SCO does here -- give all the reasons you can think of why your motion stands even without the Sontag declaration and "even if IBM's Thomas declaration were uncontradicted". In other words, not only can they not answer Davis, they can't contradict Thomas either. So instead they basically ask that at least the exhibits stay in the record.

Standing up for SCO doesn't seem to pay off, anyway. BayStar, it's been reported, is being investigated by the SEC, and now we get word that RBC had a disappointing 3rd quarter.

Thomas explained that complying with SCO's request for all the old versions of AIX, including those never released, is a huge job. SCO uses the "I can't hear you" defense, even claiming that "IBM has not argued because it cannot -- that it would be 'unduly burdened' by complying with SCO's discovery requests..." That is, of course, exactly what IBM *has* done, and Ms. Thomas' declaration is in support of that very assertion.

SCO spends the rest of their time in this motion saying that isn't so, that saying that it would take weeks to comply is the same as saying it's easy to do and not a burden. That argument actually could have merit, if they could justify the request as being pertinent and necessary. They only offered the Sontag declaration to raise issues of credibility as to IBM's truthfulness, and you don't need to be an expert to do that, they say. Wrong. In a declaration, you do need to be an expert or at least have personal knowledge of the subject you are testifying about. Declarations are not supposed to be nothing but ad hominem attacks on a party because you don't like them and think they are not being altogether truthful. SCO can put things like that in their memoranda, if they wish, but that isn't the purpose of a declaration.

Next, they show some quotations from IBM's ads and documents saying that CMVC can retrieve data. SCO seems to have brought this entire lawsuit based on things they read online. You'd think, given all the spinning they do, that they'd know that PR can't be relied on as being altogether true. However, on the ads, what SCO fails to address is that they are not asking for current versions of AIX. They have that already. They are asking for arcane, antiquated versions that IBM is not likely to have taken any steps to make quickly available, because nobody needs it. SCO wants it only because it couldn't find any infringing code that matters in all the many versions it has so far, and it has this idea stuck in its head that if they could just trace every bit of it, they'd be able to trace a kind of paternity of ideas, a series of begats, if you will, or the game of telephone, as Davis described it. Nothing dissuades SCO from clinging to this theory like a life preserver, I suppose because they apparently have nothing else and because unless they can come up with plausible reasons to delay and also get the judge to buy into their derivative code theory, their ship is going to nose dive and quickly sink like a stone.


  


SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration | 615 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Maybe IBM should hand over one file diff...
Authored by: Anonymous on Sunday, August 29 2004 @ 08:20 AM EDT

To prove their point, IBM should choose an often changed but irrelevant file and
do one releases worth of changes.

I understand source-code, but diff and patch files are REALLY complicated.
Pulling the file out of source control and collating all the junk (even a script
will need manual inspection to ensure that it is valid) will probably take an
IBM employee 3-4 hours. Even then the diff file is a order of magnitude more
complicated than raw source.

IBM can then hand over the file, ask the SCO lawyers what it means... and
multiply 3-4 hours by 5000 files by 20 releases. That's before they point out
that older versions of the source are (in storage/different
format/lost/partially complete/spread over multiple servers).

Can IBM charge SCO consultancy fees for extracting the data?

[ Reply to This | # ]

OT Here Please
Authored by: Anonymous on Sunday, August 29 2004 @ 08:20 AM EDT
How else are we meant to keep up to date?

[ Reply to This | # ]

Corrections Here Please
Authored by: Anonymous on Sunday, August 29 2004 @ 08:21 AM EDT
We all make mistakes.

[ Reply to This | # ]

My Declaration
Authored by: the_flatlander on Sunday, August 29 2004 @ 08:35 AM EDT
Oooooooh! Oooooooh! They are using "an experienced industry
participant." I can qualify for that, too! Would they like my declaration?
Where should I send it? To Darl? Or to Brent Hatch? Or maybe straight to
IBM?

The Flatlander

1. I, the Flatlander of Groklaw, swear, upon penalty of *death*, that I suspect
the SCOundrels of being quite full of stuff.
2. To the best of my knowledge and belief the SCOundrels are cluesles half-wits
with no legal case, at all.
3. There is no infringing code in Linux.
4. Darl has a really bad hair cut.

Signed,

TFL

[ Reply to This | # ]

Many
Authored by: Anonymous on Sunday, August 29 2004 @ 08:40 AM EDT
"why IBM first said its production would require "many, many
months" but now concedes it will only take "many weeks"."

Without knowing how the system works, I think I could get most of the data out
in many seconds... (Many, meaning a quadrillion or so...)

-Cyp

[ Reply to This | # ]

  • Many - Authored by: Anonymous on Sunday, August 29 2004 @ 08:41 AM EDT
    • Many - Authored by: Anonymous on Sunday, August 29 2004 @ 08:44 AM EDT
      • Many - Authored by: johan on Sunday, August 29 2004 @ 01:28 PM EDT
  • Many - Authored by: cbc on Sunday, August 29 2004 @ 07:06 PM EDT
  • Certain values of Many - Authored by: DebianUser on Sunday, August 29 2004 @ 07:39 PM EDT
  • one, two, three, many...lots! - Authored by: Anonymous on Monday, August 30 2004 @ 11:51 AM EDT
RBC
Authored by: Anonymous on Sunday, August 29 2004 @ 08:41 AM EDT
I hope you arent trying to imply that RBC had a poor 3rd quarter merely
because they made a mistake about SCO?

If so, you give way too much credit to SCO.

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: Anonymous on Sunday, August 29 2004 @ 08:51 AM EDT
I hate to ever side with SCO, but I think they may have a point that it is less
difficult for IBM to pull the source on a particular release of AIX than IBM is
saying it is. As a QA guy who's worked for some fortune 100 companies, I find
it difficult, though not impossible, to believe that IBM doesn't have a way to
recreate each release of AIX code.

Most of the code management systems I've worked with keep the current version of
each file and a reverse order list of changes for each earlier version of the
file. When you create a release, you have the code management system place a
tag on each file that you are including in the release. That way, if you want
to recreate the release in the future, you tell the system to pull all the code
that has the release tag.

Sometimes this isn't enough to recreate a release though. In order to be
absolutely sure everything is exactly the same in the executables, you should
also archive the tools that are used to process the source into the binary
forms. That's why many companies also archive copies of the compiler, linker
and other tools with each major release. Doing so assures them that they'll be
able to recreate the release from scratch if they have to.

Now, if you are talking about very old code, it's quite possible that some of
the reverse change logs have been lost, moved into an offsite archive, or are
otherwise inaccessible. In that case there isn't a lot you can do.

I suspect the truth of how difficult it is to get the AIX source is somewhere
between the positions taken by SCO and IBM, but I also agree with the good
professor that it's irrelevant. What matters is what the Linux code looks like
now compared to the UNIX code in question.

[ Reply to This | # ]

Kidnap???
Authored by: jaydee on Sunday, August 29 2004 @ 08:57 AM EDT
"Maybe if you could kidnap him and get him very drunk indeed. Or brainwash
him, if you had enough time."

Has anybody heard of the whereabouts of those MIT Rocket Scientists since Darl
mentioned them?

---
Henry V: Act 4: Scene 3

[ Reply to This | # ]

Sontag spying on IBM?
Authored by: Stumbles on Sunday, August 29 2004 @ 09:01 AM EDT
I'd like to know how Sontag has gotten this personal
knowledge about IBM's repository. IBM either has a SCOG
mole or Sontage has cracked their system.



---
You can tuna piano but you can't tuna fish.

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: Kaemaril on Sunday, August 29 2004 @ 09:23 AM EDT

I've been in IT for 17 years, the last twelve in relational database technology. I therefore like to think of myself as "an experienced industry participant" ...

If either IBM or SCO would like me to castigate their opponent's databases - without having seen them firsthand or having any experience of them whatsoever - I'm sure something could be arranged for a suitable fee ...

What? That's not how it works? Has anyone told SCO this? :)

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: greybeard on Sunday, August 29 2004 @ 09:49 AM EDT
RE: "Experts"

Sadly, if SCO really want to find someone to testify, I believe that they will.
"Experts" for hire are by no means uncommon; think the tobacco
industry, air & water quality questions, strip mining, most testimony about
psychological topics as related to criminal cases, and the teaching of biology
as understood in this century. If one believes the IT industry to be some
outlier in terms of the unique virtue of its members, SCO themselves seem like
an adequate counter-argument.

(I suppose that the above should be qualified to restrict it to the U.S. NOt
all the world is quite so willing to entertain the babbling of phony ideologues
or paid-for "experts".)

On the bright side, it likely does not matter. SCO performance otherwise is
decidedly lame and unlikely to change.

cheers

---
-greybeard-

[ Reply to This | # ]

People in Glass Houses ...
Authored by: tgf on Sunday, August 29 2004 @ 09:58 AM EDT

I notice that on page 8 (pdf page 11) SCO quotes Rule 34(b) to IBM:


"A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organise and label them to correspond with categories in the request."

So, IBM mustn't dump a deluge of billions and billions of pages of paper on SCO, or do anything else to obscure the documents, like, e.g. scanning the prints back onto CDs, or ...

Wait a moment, isn't that exactly what SCO did to IBM a few months (or was it years) ago? Talk about pots and kettles!

Tim

---
Oxymoron of the day:
Rush Hour

[ Reply to This | # ]

Sontag obviously never really used a CM system
Authored by: Anonymous on Sunday, August 29 2004 @ 10:34 AM EDT

While he may have supervised, it's clear he never got his hands dirty actually using CM on a large project.

Several years ago I worked for a large multi-national cell-phone company that used Clearcase for CM. It was very common to find files that had hundreds of code branches, dead end developments, merged links and dozens of labels. The graphical view was so complex that it was often next to impossible to find your own branch amongst all the clutter from previous work.

All this for files only a few years old. I hate to think of what files for a project as old and complex as AIX would look like.

Sontag is talking from the idealized viewpoint often held by managers who never actually had to do the real work.

[ Reply to This | # ]

I can't wait for IBM's Reply Memo.
Authored by: tgf on Sunday, August 29 2004 @ 11:06 AM EDT
Apart from the fact that the items SCO are requesting are most likely irrelevant either for the PSJ's or for the court case as a whole, SCO have missed one vital piece of argument in their Opposition Memorandum. All their argument about how easy it is for CMVC to work as Sontag insists (probably quite rightly from IBM's own sales bumph), is entirely irrelevant for the task in hand, ie of getting all the intermediate and historical versions of all the source files.

In fact, SCO appears to hardly address this issue at all, or at least not in the same parts of the Memorandum where they talk about how Sontag has produced current releases from a source repository and has Read The Manual TM, or at least the CMVC quick reference guide, and so has his invaluable personal knowledge. Perhaps this omission about SCO really wanting IBM to extract the intermediate versions is why we have had so many trolls [anonymous] comments about how SCO must be correct and that IBM are telling porkies about getting information out of CMVC.

So, I assume that IBM will quite rightly point out in their [its in US speak] Reply Memo that SCO have merely pointed out how easy it is to get the current &/or prior release versions out of CMVC, but not the intermediate versions of files that may or may not be[en] a part of SCO's IBM's AIX; SCO have not disproved IBM's assertions about CMVC's lack of facilities for the latter.

At this point, I think I need to [mis-]quote Douglas Adams, about "the only way to get a drink out of a Vogon, is to stick your fingers down its throat", but perhaps I'll resist the urge. ;-)

Tim

---
Oxymoron of the day:
Rush Hour

[ Reply to This | # ]

This seems odd
Authored by: Jude on Sunday, August 29 2004 @ 11:07 AM EDT
The third paragraph of the Preliminary Statement (at the bottom of page 4)
says:

"First, the discovery sought is indisputably relevant; it contains or will
lead to the discovery of admissions impeaching the contractr interpretations IBM
offers in it's pending summary judgement motion; it contains material showing
that IBM depended on Unix to develop products in ways that, under contract,
prevented the later contribution of all or any part of these products into
Linux;...."

SCO seems to be making quite a presumption that evidence to support their claims
will be found. The speak in a manner that suggests the existence of this
evidence is a foregone conclusion.

If SCO hasn't gotten the discovery materials yet, how can they be so certain of
what they will find if they do get it?

[ Reply to This | # ]

Well! Who would have thought it.
Authored by: Anonymous on Sunday, August 29 2004 @ 11:10 AM EDT
L ink

[ Reply to This | # ]

SCO says they don't need the Sontag Decl.
Authored by: ujay on Sunday, August 29 2004 @ 11:55 AM EDT
on Page 2 of the document.

IBM: We want the Sontag decl dropped for <reasons>
SCO: we don't need it anyway <but>
JUDGE: declaration dropped.

Is it stupid of SCO to place such a statement in a document arguing against
IBM's motion to drop the declaration? I think so.




---
Windows - How do you want to be exploited today.

[ Reply to This | # ]

Investigated by SEC?
Authored by: Anonymous on Sunday, August 29 2004 @ 12:05 PM EDT
> BayStar, it's been reported, is being investigated by the SEC

Anybody knows what this information is based on? Investigated in regards to
what?? And why does it fall within the confidence of SEC?

[ Reply to This | # ]

Bickering "It's hard", "No it's not hard, and if it is, you're stupid" "I'm not!" "You're too
Authored by: Anonymous on Sunday, August 29 2004 @ 12:17 PM EDT
... etc. This appears to be what the case has come down to now, and even our fellow groklawyers are confused by this.

However, I feel this issue can become so much clearer if you observe the following two simple points:

1. it is probably (or should be) quite easy and/or well automated to pull (the source of) an actual release of AIX from CMVC;
2. CMVC metadata (history) is not structured by product and cannot be easily extracted using the product name as the sole criterium.

SCO seems to confuse the two, and if you do that, indeed IBM would seem to be dragging their feet and try to obstruct things.

However, IBM has already produced the results of 1., i.e. the actual releases.

What SCO says they want, however, is the history trail showing that preciousssss_linux_jfs-10.8.13.c has started from legacy_sysv_ufs_1.2.7.c.

That copyright would not restrict the first is irrelevant. (Cf. SCO's "Why are they pestering us with copyright issues (CC10)?"). If there is a contract clause (which SCO believes it has) that anything that has any sort of ancestral relationship to any file in SYSV is restricted, then they have found IBM to be in violation of this agreement.

I believe this explains the current fight in court and on Groklaw quite nicely, and SCO's twisted position as well.

Cheers,

 
Emile.

[ Reply to This | # ]

SCO is really squirming now.
Authored by: kawabago on Sunday, August 29 2004 @ 12:29 PM EDT
I like it!

[ Reply to This | # ]

Perjury
Authored by: JamesKatt on Sunday, August 29 2004 @ 12:47 PM EDT
I hope that what ever lies that SCO's staff gave under oath will be prosecuted.

This may light a fire under them.

---
I ANAL

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: grubber on Sunday, August 29 2004 @ 12:59 PM EDT
As an opposition to a motion to strike, it sure doesn't talk about the
"strike" issue much. It just repeats the same dribble that it needs
this or it needs that, but only spends about 5% of the document talking about
why Sontag's declaration should be admitted. This seem odd to anyone else, or am
I missing something?

[ Reply to This | # ]

IBM not a Bureaucracy?
Authored by: Anonymous on Sunday, August 29 2004 @ 01:27 PM EDT
"IBM's Motion is an attempt to prevent the Court from seeing [...] (2) the rudimentary, common sense observations of an experienced industry participant that IBM, one of the most sophisticated companies in the world would never make its internal operation as inefficient as IBM now tells the Court they are."

Here Sontag demonstrates not only a lack of experience in "the industry", but also that he has never tried to delve into decades-old records (apparently he doesn't read Dilbert, either). A big, sophisticated company like IBM has many inefficient, conflicting, outdated, and otherwise illogical procedures in place. There are too many to keep track of them all, and procedures don't magically adapt to every advance in technology and change in the business climate. IBM (and any other profitable large company) succeeds by running the business so they can succeeed despite shortcomings in their practices, not by pretending to have perfect internal systems. The same can be said for a certain outfit in Redmond.

If IBM is feeling really mean, they should send their discovery to SCOG on 9-track, 800BPI NRZI magnetic tapes (using EBCDIC, of course!). They can include an order form for a drive to read them with...

[ Reply to This | # ]

slippery slope
Authored by: jacks4u on Sunday, August 29 2004 @ 01:43 PM EDT
So, it seems tha type of argument SCO is trying to build, thru discovery is a
verry slippery slope. They want all this extra source code, so they can say:
This version infringed, and that version, while it doesn't infringe litterly, is
based on this version, and the next version infringes because it's based on...ad
infinitum.

Under that illfounded logic, is there any version of IBM code that is not
claimed as SCO code?

I cannot see how that logic coulld prevail, and I cannot see the courts
sanctioning discovery toward that end.


[ Reply to This | # ]

A germ of a good arguement by SCO
Authored by: Anonymous on Sunday, August 29 2004 @ 02:03 PM EDT
Part of SCO's arguement seems to be that they can't say that NONE of IBM's
activities violate their copyrights without knowing about ALL of their
activities including internal development activities. IMHO this could end up
limiting IBM's PSJ to IBM's "public" linux activities (ie. the same
activities the rest of up perform when copying, distributing and modifying
Linux). Even a limited PSJ would be a big win for IBM and the rest of us but it
would still give SCO something to take to trial. They also seem to be floating
a twisted version of the traditional pro-GPL arguement that if IBM violated it's
contract with SCO (maybe they removed a copyright notice and then later put it
back before release) then they have therefore violated SCO's copyright.

Any comments?

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: elcorton on Sunday, August 29 2004 @ 02:22 PM EDT
I had only glanced at this memo, but after reading PJ's critique, I
went over it in more detail. It's actually quite interesting, and
reveals much about the advanced desperation of SCO's lawyers. Like
many of SCO's recent filings, it reads as if dictated by our favorite
resident shill on the Yahoo SCOX board.

Without repeating PJ's observations, I want to call attention to some
of the highlights in the filing. First, there is the "Preliminary
Statement," which starts on p 1. SCO openly admits that this section
of the memo is not relevant to the matter at hand: whether the
declaration should be stricken or not.

"To place IBM's argument in context, it is necessary first to describe
what SCO has shown in support of its discovery motion _independent_ of
Mr. Sontag's declaration." (Emphasis in original.)

SCO forgets to cite its own discovery motion here, but proceeds to
take the opportunity to add yet more pleading in favor of it. That
pleading is at once redundant, immaterial, and abusive of the process.
To understand why this is so, see "IBM's Opposition to SCO's Ex Parte
Motion for Leave to File a Supplemental Memorandum Regarding
Discovery:"

---

On June 1, 2004, SCO filed a 17-page 'Memorandum Regarding Discovery'
which, though not styled a motion to compel, seeks an order compelling
IBM to produce billions of additional lines of source code ...
together with potentially millions of additional documents concerning
the development of AIX and Dynix over the past 20 years. Then, on July
8, 2004 (before briefing on SCO's 'Memorandum Regarding Discovery' was
even complete), SCO filed a 'Renewed' Motion to Compel, together with
a 12-page supporting memorandum, addressed in large part to the exact
same issue — i.e., the production of all of IBM's internal source code
files. SCO then filed, on July 12, 2004, a 27-page 'Reply Memorandum
Regarding Discovery.' SCO's reply brief in support of its 'Renewed'
Motion to Compel is due tomorrow [August 26.]

Now, over a month after briefing on the 'Memorandum Regarding
Discovery' was complete, SCO seeks permission to file yet another
memorandum on the same subject (and, in fact, has improperly filed
that supplemental memorandum before being granted leave to do so).
SCO's request for yet another memorandum on the subject should be
denied.

First, SCO has already been afforded more than adequate briefing on
this issue. Local Rule DUCivR 7-1(b) permits the filing of a
supporting memorandum, an opposition memorandum, and a reply
memorandum; it expressly provides that '[n]o additional memoranda will
be considered without leave of court.' SCO's filing of its
supplemental memorandum, without first obtaining leave of Court to do
so, is therefore itself improper. More importantly, by filing its
'Memorandum Regarding Discovery,' followed immediately by a 'Renewed'
Motion to Compel, SCO has already helped itself to four memoranda on
the same subject. To date, and without considering SCO's proposed
supplemental memorandum or its reply memorandum due tomorrow, SCO
has
submitted 56 pages of briefs. It now proposes to submit an additional
10- page brief, a six-page declaration, and eight new exhibits,
raising new arguments to which IBM has not been afforded an
opportunity to respond.

---

http://www.groklaw.net/pdf/IBM-261.pdf

Now, what do we find in SCO's 20-page memorandum ostensibly dealing
with the Sontag declaration? More pleading for its motion on
discovery. Did I mention desperation?

Back to SCO's memo. Amidst more whining about its motion on discovery,
we find a startling admission on p 2:

"SCO thus does not need the Sontag declaration to prevail on this
motion. SCO offered the declaration to demonstrate something else —
the general lack of credibility of IBM's claims about discovery."

Kevin, is that you? What rule of evidence or procedure entitles SCO to
file a declaration in support of a motion, that DOESN'T SUPPORT THAT
MOTION? I laughed long and hard over this.

On p 10, SCO is arguing that Sontag's declaration is admissible as lay
testimony under the Federal Rules of Evidence. Just in case the court
has forgotten, SCO helpfully cites the relevant rule:

---

Federal Rule of Evidence 701 provides: 'If the witness is not
testifying as an expert, the witness' testimony in the form of
opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue.'

---

Here's what they left out:

---

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c) NOT BASED
ON SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE within the
scope of Rule 702. [Emphasis added.]

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.

---

http://www.law.cornell.edu/rules/fre/rules.htm#Rule701

It's one thing to try this kind of selective quotation on a Yahoo
Finance board, and another to try it on a U.S. District Judge. One
will get you ridiculed, the other will get you... well, let's just say
I look forward to Kimball's reaction with joy in my heart.

[ Reply to This | # ]

Sooner or later all the judges will see that TSG has no evidence
Authored by: Anonymous on Sunday, August 29 2004 @ 03:08 PM EDT
I wonder what happens next...

After a judge is certain that TSG has no legally admissable evidence of
any sort, will the judge allow TSG to go on more fishing expeditions?

TSG's case looks so transparent that anyone can now see through its
baseless claims supported by TSG lies. There is no evidence that Linux
infringes TSG (or Novell, get my drift) copyrights. There is no evidence
IBM breached any contracts that TSG purchased from failing companies.
There is no evidence IBM has intended to interfere with TSG.

Rather, everyone else wants TSG to behave legally and ethically. Now,
we are watching the American legal system to make it so.

[ Reply to This | # ]

Sooner or later all the judges will see that TSG has no evidence
Authored by: Anonymous on Sunday, August 29 2004 @ 03:12 PM EDT
I wonder what happens next...

After a judge is certain that TSG has no legally admissable evidence of
any sort, will the judge allow TSG to go on more fishing expeditions?

TSG's case looks so transparent that anyone can now see through its
baseless claims supported by TSG lies. There is no evidence that Linux
infringes TSG (or Novell, get my drift) copyrights. There is no evidence
IBM breached any contracts that TSG purchased from failing companies.
There is no evidence IBM has intended to interfere with TSG.

Rather, everyone else wants TSG to behave legally and ethically. Now,
we are watching the American legal system to make it so.

[ Reply to This | # ]

What is an expert?
Authored by: AdamBaker on Sunday, August 29 2004 @ 04:26 PM EDT
I was curious about the phrase

"Although Mr. Sontag need not be qualified as an expert because his
declaration is based on personal knowledge, Mr. Sontag in any case qualifies as
an expert for purposes of resolving the discovery dispute currently before the
court."

Is there not a requirement that expert witnesses are independent? It would seem
to offer plenty of opportunity for abuse if experts, who by definition are
presenting evidence that a Judge or Jury may not fully understand the reasoning
behind, can be people who will directly benefit from a certain outcome to the
case.

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: Anonymous on Sunday, August 29 2004 @ 04:49 PM EDT
So the MIT guys say there is no direct copying. Ummmm... Didn't Darl tell the
whole world in 2003 when he started inserting his foot into SCO's mouth that
there were MIT guys who "deep dived" into Linux and that he had proof
of copying? Exactly why was it that he wanted people to sign an NDA when he
obviously has no proof of any copying? Perchance could it have been to make it
look like they were protecting something when in fact they were not? The NDA
would of course prevent people from disclosing that little secret if the person
looking at the "proof" was smart enough to figure it out.

[ Reply to This | # ]

Let's start a new category
Authored by: tangomike on Sunday, August 29 2004 @ 05:38 PM EDT
Besides Corrections, OT and Trolls, let's add one for "IBM Should Give SCOX
All the Code". That way I can just skip over it.

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

[ Reply to This | # ]

Confusing
Authored by: Anonymous on Sunday, August 29 2004 @ 05:39 PM EDT
SCO's position is truly confusing. First they say that it would take 25,000
man-years to find infringements when comparing Unix and Linux. This would be 100
years for 250 people that SCO can maybe muster to put on this job (I doubt they
have this many employees these days). This figure is completely idiotic and if
it worked that way nobody would be able to find infringements in anything. So,
why have the case? Just let it slide. Heck, why have copyright law?

Next thing you know, they are asking for every single iteration, which good
professor calculated as 14,000,000 man-years of work, if they wanted to run
comparisons. I get the fact that judges are not programmers, but when this kind
of nonsense it thrown their way, they *have to* know that it's all rubbish.

But the best part is blathering about CMVC. What are they now accusing IBM of?
Having bad software?

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: rand on Sunday, August 29 2004 @ 06:17 PM EDT
Here, for those who don't want to sit up all night trying to compare the
documents side-by-side (like *yawn* I did) is a short synopsis. I actually
started it to help myself see the picture clearer. It may help you understand
PJ's and others' comments better.
There's no analysis here; I tried to use the wording of the documents as much
as
possible and not make judgements. Also, there are no links 'cause I didn't feel
up to HTML.
--------------------------------
Motion to Strike (IBM-212)

1. Sontag declaration is about IBM's internal CMVC.
2. The declaration does not show Sontag has any personal knowlege of IBM's
internal CMVC or CMVC in general.
3. The declaration does not show that Sontag is qualified as an expert witness.
4. Because of 2 & 3, the declaration should be struck and disallowed from
deliberations on SCO's Memorandum Regarding Discovery and SCO's
"Renewed" Motion to Compel.

IBM asks for oral arguments at the same time as other pending motions. There is
an accompanying memo, along with a supporting declaration by the AIX program
director.
--------------------------------
IBM Memo (IBM-213)

Preliminary Statement
Sontag has testified about IBM's internal CMVC. He fails to show he has
personal knowlege, or competence as expert.

Argument
A. Court should strike because declaration fails to show personal knowlege.
B. Court should strike because declaration fails to qualify as admissible
expert
testimony.

Conclusion
Because of A & B, the declaration should be struck and not considered in
rulings on SCO's Reply Memorandum Regarding Discovery and SCO's
"Renewed" Motion to Compel.
--------------------------------
SCO Memo (IBM-265)

Preliminary Statement
IBM wants to prevent the court from seeing evidence and common-sense comments
of
an industry participant. SCO is trying to undermine IBM's efforts to hold back
evidence. SCO wants all of IBM's AIX/Dynix source code, and wants the court to
compel IBM to produce it. SCO is entitled to the code even if there were no
Sontag declaration because: The discovery is relevant [reasserts "all
code" license theory] and it is necessary to look through all the code to
determine that, independent of Linux issues, IBM has not violated SCO
copyrights. IBM's admissions show that producing all the code is not an undue
burden. This would be true even if there were no Sontag declaration. IBM says
all the code could be produced without ANY delay. SCO does not need the Sontag
declaration. The declaration is just to show IBM's general lack of credibility.
IBM doesn't want the Court to know this. The declaration does this in two ways:
First, IBM has made public statements that conflict with court record. IBM told
the court that retrieving the files would be hard. IBM tells customers the
system is easy to use. Second, if IBM is telling the truth to the court, that
would imply that IBM is inefficient. Sontag, based on lengthy career in
computer
industry, thinks this is improbable. None of these observations require expert
knowlege. Thomas does not try to reconcile IBM's court record with public
statements or explain the inefficiency. Declaration may be split into two
parts:
documents and testimony. IBM doesn't claim the documents are inadmissible.
Testimony is admissible, too, since there's another declaration attached with
Sontag's qualifications to provide rudimentary observations. If IBM wants to
focus on expertise, Thomas needs to be questioned about differences in
advertising and court records, why manuals are wrong, why IBM contradicted
itself, and why IBM changed from "many, many months" to "many
weeks".

Background
IBM now says compliance would not be hard. IBM didn't address Dynix or RCS. IBM
changed from "many, many months" to "many weeks". If IBM
can
produce all the source code then it must do so. SCO asked for it over a year
ago. IBM's court record doesn't match public statements about CMVC. Sontag
points that out. Thomas doesn't point out Sontag's mistakes individually,
expects Court to accept unsupported accusation. IBM's public documents
contradict Thomas. Differences "strain credulity". [explanation of
how SCO thinks CMVC is supposed to work]

Argument
A. IBM admits that complying with discovery requests is not burdensome. Motion
to strike is a sideshow. IBM wants to distract attention away from Motion to
Compel. IBM never argued "undue burden". IBM changed from "many,
many months" to "many weeks". IBM can give SCO everything in
CMVC. SCO _needs_ a faithful copy of CMVC. SCO is entitled to everything in
CMVC. IBM is not giving SCO what SCO asked for. IBM can give SCO everything in
CMVC. It would be easy for them. Real issue is IBM's avoidance of discovery
obligations.
B. Sontag declaration is based on personal knowlege [of the documents attached
and on the Internet] and experience in the industry; expert testimony is not
offered. His credentials [as an industy participant] are in the new declaration
attached.
C. If expert opinion is required, Sontag is an expert.
D. IBM's motion to strike is meritless, but if the Court does strike, please
only strike part of it and not everything.

Conclusion
The motion to strike should be denied, and if it's not, Court should order the
deposition of Thomas.

---
Eat a toad for breakfast -- it makes the rest of the day seem so much easier
(Chinese (I'm told) proverb) (IANAL and so forth and so on)

[ Reply to This | # ]

There are 2 *TWO* CMVC Products
Authored by: Anonymous on Sunday, August 29 2004 @ 07:30 PM EDT
SCO have shot themselves completly with this one.

IBM DO have a product that they sell to customers called CMVC. The public_CMVC
came to IBM when they bought the Rational Software division about 2 years ago.

The internal_CMVC is a completely different product, most likely homegrown, that
has been used within IBM for at least the last 10 years.

All IBM need to say is: "SCO has no personal knowledge or opinion as the
product they refer is NOT the product used".

And SCO wants to talk common SENSE!!!


Whiplash (not logged in)

[ Reply to This | # ]

What public documents is IBM asking to supress?
Authored by: Anonymous on Sunday, August 29 2004 @ 08:22 PM EDT
SCO, as wrong and bumbling as they are, have a valid point that IBM's 9th
counterclaim expands the scope of copyright infringement to cover everything in
AIX and Dynix, not just the System V copyrights in the initial suit. Magistrate
Wells cut off any discovery on the counterclaim until after SCO complied with
the original discovery requests, so SCO is partially to blame, if not entirely,
for the mess they are in because their bad acts were the cause of them not being
able to get the discovery they need to prove or disprove copyright infringement
on the whole of AIX/Dynix. It isn't fair that SCO is in this situation, but it
is just.

[ Reply to This | # ]

RBC's poor quarter is not related to SCO/Baystar
Authored by: Anonymous on Sunday, August 29 2004 @ 09:07 PM EDT
There are plenty of other good reasons why the Royal Bank lost money this last
quarter. The SCO investment was about $30 million (USD). As the linked
Canoe/Calgary Sun article mentions, RBC's profits for the last three months
alone were $746 million (CAD). If you convert that to USD at today's exchange
rate (which is not really a good way to compare these numbers, but it gives you
an idea), that is about $567 million (USD).

$30 million is really not that significant to RBC (recall, the figures given
above are their PROFITS, not their account balance); their losses are more
likely due to poor performance of their investments, and growing competition
from other banks. RBC focuses more on business accounts than individual
accounts, and has a bigger US presence than the other Canadian banks, and would
be more affected by the economic downturn in the US than the other four banks
would be.

PJ is usually good at connecting the dots, but, at least this time, I think her
conspiracy sense just got the better of her.

Cheers!

[ Reply to This | # ]

Almost everybody ignoring the obvious question Judge Wells will ask
Authored by: Anonymous on Sunday, August 29 2004 @ 10:11 PM EDT
There is a lot of discussion of the burden of IBM producing the AIX iterations,
the Thomas v Sontag declarations, etc. etc.

But perhaps the most obvious question is being ignored (even if *arguendo* we
were assume Magistrate Judge Wells fell for Sontag's argument, SCO's bizarre
derivative by history theory, and SCO's misinterpretation of the March 3rd
order)...

...The issue for IBM's 10th counterclaim

...And the issue for SCO's contract claims

Is supposed to be about **CODE IN LINUX**

IBM's 10th counterclaim is about whether **LINUX** infringes a SCO copyright

SCO's contract claim relates to code that IBM contributed to **LINUX**

So even if *arguendo* we were assume Magistrate Judge Wells fell for Sontag's
argument, SCO's bizarre derivative by history theory, and SCO's
misinterpretation of the March 3rd order

The obvious question for SCO: WHY DO YOU NEED THE HISTORY OF CODE THAT IBM DID
**NOT** CONTRIBUTE TO LINUX (which has to the be vast overwhelming majority of
the AIX and Dynix code, even according to SCO)

Even if SCO's derivative by history theory were true (which it is not), the only
history which can be relevant is the history of the code that IBM contributed to
Linux

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

SCO claims they needs to see ALL software IBM has created!
Authored by: Anonymous on Sunday, August 29 2004 @ 10:59 PM EDT
This is really getting out of hand now (I know, I know, like it's not already way out of hand, right?). I just glanced over SCO's opposition here, but two things jumped right out at me. First, on page 8, SCO claims that they need to see ALL software IBM has ever created:

"In fact, SCO needs a faithful reproduction of CMCV in the precise format in which it is stored and maintained in the ordinary course of IBM's business..."

Why do they need access to software projects which are completed unrelated to this case? Are they pushing their definition of "derivative works" to include all software created by the licensed party, and not just the licensed software itself? Anyways, the second thing that jumped out at me, and really made me laugh, is on page 9:

"Because CMVC data may be accessed remotely (id.), IBM could grant to SCO remote access to CMVC data to respond to SCO's documents requests."

Right... From a technical standpoint, wouldn't giving SCO access to the data require SCO to have it's own userid and password for the system? And then, once they had access to the data, what would prevent them from deleting or modifying the files or configuration information (accidentally or deliberately)?

Even if they could be granted access, why does SCO need unrestricted access to CMVC and the numerous software development projects which are completely unrelated to this case?

It's funny, I just watched Pirates of Silicon Valley last night, and this claim by SCO very much reminds me of Bill Gates going to Apple and stealing the Windows concept from them. Is that what SCO is doing? Trying to look at CMVC so they can get ideas of what to do next (you know, if by some miracle they don't go bankrupt), since it's obvious that their UNIX business is drying up? Probably not, but it certainly can be looked at that way given their unreasonable request.

[ Reply to This | # ]

If SCO's Derivative Theory is true, UNIX System V is Public Domain
Authored by: JamesKatt on Sunday, August 29 2004 @ 11:23 PM EDT
1. Unix System 3 and System 1 are public domain
2. Unix System V is a derivative of Unix System 3

If SCO's Derivative Theory is True
Then Unix System V is public domain

Therefore, SCO has no right to claim copyright to Unix System V since they
have placed it in the public domain via their Derivative Theory.

---
I ANAL

[ Reply to This | # ]

SCO Badly Misrepresents... Everything
Authored by: Anonymous on Monday, August 30 2004 @ 12:25 AM EDT
If this has been mentioned elsewhere, my apologies. However, as I scanned the
document in question, it came to my attention, yet again, that SCO can't submit
a document without packing it with misrepresentations, outright lies, and
ridiculous statements.

First off, let's just assume that, in SCO's world, every operating system
product is one monolithic code base, where all files and items are inter-related
and therefore completely incapable of independence from any other part of the
code base. Now that we have Windows in mind, what kind of INSANE person would
run a project as large as an entire operating system release as ONE SINGLE
PROJECT???

Now that we all have gotten our fits of laughter out of the way, let's discuss
some operating system fundamentals. Operating systems are designed of a kernel,
and a bunch of typically independent programs with individualized code bases.
So, you'd have...

AIX Kernel
Command Shell (AKA BASH or equivalent)
Utilities (GCC, md, rd, rmdir, whatever)
Server Programs (DHCP, DNS, HTTP, X Server, etc)
Client Programs (X Client, KDE, GNOME, Tux Racer, etc)

Basically, you have the Kernel of the OS which runs on it's own development
cycle. Then, you have the programs that you bundle with a kernel to make a
complete operating system.

Basically, you compile the kernel, then compile the remaining code at it's last
stable point to run on that kernel. Voila! Operating system!

But wait... Your programs also compile and run on other operating systems! So,
KDE isn't AIX specific, why would it be tracked as part of the AIX code base?
It's not! It's built when needed to release an operating system. Same thing
with DNS servers, DHCP servers, Tux Racer, BASH, KSH, whatever. So, when
OS/400, OS/2 or whatever needs a DNS server, the code is pulled in, compiled and
tested, then released.

A whole pile of independent projects are pulled together to create an Operating
System release. For heaven's sake... I learned that in Computers 101.
Apparently, Sontag didn't.

And, again, we come back to IBM has ALREADY provided the released code to SCO.
These are the checkpoints where things are made so they can be repeated. Now
they want the intermediate points, plus all the code that might have been
considered for inclusion at some point in time. That's just insane.

Sorry for the rant, but I had to blast off some steam. While I hope I've made
some valid points, if this gets deleted, I won't be terribly disappointed.

Sincerely,
Brian Lusk

P.S. For reference, here is my previous and probably more coherent comments
along this line of thinking:
http://www.groklaw.net/comment.php?mode=display&sid=20040828182130275&ti
tle=The+Purpose+is+Clear&type=article&order=&hideanonymous=0&pid
=195978#c196018

[ Reply to This | # ]

funny looking
Authored by: jig on Monday, August 30 2004 @ 12:56 AM EDT
the part that made me laugh was the argument about thomas's ability to comment
expertly.

supposedly, sontag, who is only considered an expert because he has managed
large products and heard about cmvs, CAN make comments about what ibm can and
can't do with their internal software that sontag may have never acually seen or
seen in action.

BUT, thomas CAN'T comment on sontag's testimony because she isn't an expert on
sontag.. note that they don't say she isn't an expert on reading testimony, or
on the subjects of the testimony, but just since she doesn't know sontag
personally (they say), she can't comment on what he's saying.

it's kind of a switcheroo.. i testify that your car looks like it's been stolen.
you testify that it isn't stolen, that it doesn't look stolen, and that i
haven't even seen your car, ever. Provably. And you finish by saying i have no
idea what i'm talking about.

So then I come back and say, well, maybe i haven't ever seen your car, but i
sold used cars for ages, and i saw an advertisement that mentions you sell used
cars, and everyone in the biz knows that some percentage of used cars are stolen
merchandise. and since used car salesmen always drive some of their stock
around, then your car looks stolen. AND, you can't testify on whether or not i
know what i'm talking about because you don't know me/ we've never met.

sco makes almost exactly the same types of assumptions (through sontags
testimony at least), and similarly completely sidesteps the fact that ibm is
producing a documented expert on the cvs software ibm uses who is so
surprised/dismayed about sontag's lack of knowledge on the subject that she
feels it necessary to mention that she doesn't know where to begin to describe
how wrong it is.

instead, they make the argument that sontag is an expert in something, and it's
close enough, or if it isn't then at least he's an expert on his own opinions..
and shouldn't that count enough to keep in the exhibits?

giggle.

[ Reply to This | # ]

Missed opportunity?
Authored by: kenryan on Monday, August 30 2004 @ 12:59 AM EDT
Seems to me IBM missed an opportunity.

SCOs whole argument about how easy CMVC is to get historical data from hinges on
blurring the definitions of "release" and "intermediate"
data. While the distinction is obvious to anyone familiar with SCM systems,
clearly it appears much more subtle or nonexistent to most other people
(evidenced by the length of discussions on the subject here).

It would have been nice if Ms. Thomas had emphasized that distinciton in her
declaration. It seemed to me that she was asked to address one specific point
and blew off the rest of Sontag's comments (actually it sounded to me like
someone who had far better things to be doing that bothering with this
nonsense). I'm concerned that the judge may not realize that getting releases
is easy, but getting intermediate trash is not.

Hopefully IBM's lawyers will make that point in argument...

---
ken
(speaking only for myself)

[ Reply to This | # ]

Troll?
Authored by: Anonymous on Monday, August 30 2004 @ 02:34 AM EDT
Sco has a very good point actually. The version control system, which is in use
in every major company, could readily identify that source Sco is looking for.
Goto sourcforge or kernel.org, it's the same deal.... Not that I'm going to go
and buy a bunch of scox, but in truth, the revision control, or even CD's can
produce what sco is asking for. I won't offer opinion on whether it would help
or not, I'm just stating a fact, IBM CAN pull that data sco is requesting. I am
VERY familiar with revision control systems. Relevency is up to the judge, but
bite the bullet, this is not hard to get.

[ Reply to This | # ]

SCO's -only- strong point
Authored by: ile on Monday, August 30 2004 @ 02:43 AM EDT
(Actually, more a question to those knowledgeable than a statement).

It has already been pointed out in an earlier story here in Groklaw (sorry,
can't find it now to link) that Ms Thomas' declaration had a glaring hole,
namely not being exhaustive about the errors and mistakes of the Sontag
declaration. And in fact this has been brought up in this rather stupid attempt
to oppose Sontag's declaration being kicked out.

The question: how strong, how persuasive can this argument be?
(in fact, I am of the otherwise ignorant opinion that Sontag being neither an
expert nor having real first hand knowledge of the issue is more than enough to
throw the whole thing away, but I am curious as to the actual relevance of the
Thomas' declaration).

Thanks,

ile

[ Reply to This | # ]

Expert testimony about discovery
Authored by: Khym Chanur on Monday, August 30 2004 @ 03:35 AM EDT
How unusual is it for people to submit expert testimony that's about discovery? Expert testimony that the (hypothetical) jury is never going to hear about? Seems kind of weird to me.

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

Astroturfers of the World, Unite!
Authored by: Anonymous on Monday, August 30 2004 @ 03:51 AM EDT
I sensed some increase in pro-SCO posts in earlier stories. However, I think the
current story represents a watershed.

Finally, Darl's call to arms of trolls and astroturfers seems to have worked.

Until now, Groklaw featured a one-sided, un-American, constitution busting,
fixation on facts, logic, and freedom.

This abomination characterized all PJ's & co's stories and the following
discussions.

But in recent stories, finally we saw more posts that point out that PJ has a
personal opinion, and, therefore, is biased and unqualified to report on
anything related. Facts and logic don't count, opinion counts is what these
posts say.

It is clear that the posters are not yet on steam. We are still missing
fabricated quotes and smear stories (e.g., PJ has never fought in Vietnam! PJ
has not invented the Internet!). Furthermore, we are also left alone in deciding
what to do while we wait for an completely unbiased replacement of PJ.

As we all know: "when logic is against you, pound on the facts, when the
facts are against you, pound on the logic, when both facts and logic are against
you, pound on the reporter".

This is, of course, a sophisticated iteration of the crude "Shoot the
Messenger" protocol of previous centuries.

The current story shows a whole new developement. Instead of ad hominem attacks
and easy to spot trolls, we are now seeing a deluge of anonymous me-too posts
that claim that SCO's requests for access to ALL of IBM's software records for
the last 30 years is clearly justified. Something that has been discussed on
Groklaw for months now with allways the same results: SCO must show evidence
before it can proceed harrasing it's opponent.

If you look down on this discussion, you will see the same arguments popping up
everywhere, always in unsigned anonymous posts.

The latter fact also shows that the current crop of Astroturfers is still
immature. It cannot be that difficult to think of a phony name or even create a
phony account.

I think the aim is not to steer the discussion in a pro-SCO direction. That is
to much to ask. If I were directing an Astroturf campaing, I would deluge the
discussions with so much OT, trolls and Astroturfing that they would become
unreadable. That way, journalists and newbies would be chased away.

The current story is a good example. Try to find relevant posts in between the
deluge of "IBM should give SCO what it wants" threads.

A solution?

How should I know (I am just an anonymous poster)?

However, giving registered members points, a la /., to spot anonymous Trolls and
Astroturfers together with a troll point filter could help (and hurt, of
course).

Rob

[ Reply to This | # ]

Superb chess game
Authored by: sappha58 on Monday, August 30 2004 @ 04:13 AM EDT
These latest filings from IBM and SCO remind me of a chess game. IBM is Bobby
Fischer, and SCO is a ten-year-old novice. IBM is setting up for endgame, and
SCO doesn't *even* see it coming.

[ Reply to This | # ]

Neutered SCO no longer on the offensive
Authored by: SilverWave on Monday, August 30 2004 @ 06:42 AM EDT

Neutered SCO no longer on the offensive Old news but still funny :-)

http://www.theregister.co.uk/2004/08/04/sco_nomore_suits/ Clicky

" There have been a lot of third parties that have jumped into the fray and put indemnification programs in place -- big vendors coming out trying to say 'Don't worry about it, it's not a problem,'" McBride told IDG News Service.

"Rather than trying to pound through all of those issues on a daily basis, we've been content to say, 'We're going to work our issues through the courtroom, and when everything is resolved there, we'll be good to go, and then customers will know exactly where everything is.' In the meantime, customers that want to move now and remove the cloud of uncertainty, we have a program for that. So we're fine with where things are right now."

Somebody get Mr. Clean a Viagra. This is a clear case of depression caused by premature indemnification.

Heh Heh Heh!

---
Linux used ideas from MINIX
MINIX|UNIX
UNIX|MULTICS
MULTICS|CTSS
CTSS|FMS
In science, all work is based on what came before it.
Andy Tanenbaum, 6June04

[ Reply to This | # ]

SCO's Opposition to IBM's Motion [FLAME ON]
Authored by: Anonymous on Monday, August 30 2004 @ 07:42 AM EDT
I love playing the Devil's Advocate, but then IANAL....

[FLAME ON]

While SCO continues to drag this out [ad naseum], one can't help but remember
the phrase, "Somewhere in the middle is the truth." Perhaps, that's
exactly where SCO is attempting to lead the court during this round. To wit,
"If we can't bedazzle the court with brilliance, let's baffle them with
some more theories and unreasonable doubt...."

SUSPECTED RESULT:
SCO's assumptions [and ultimately, their motion] will probably fail on some very
simple grounds, once clarified.
IBM may grant SCO their deposition of Ms. Thomas to that very end [but not
without some sober second thought, I'm sure].

RATIONAL:
To IBM's credit [and SCO's anticipation] every change to every product developed
under AIX is probably contained within CMVC - further, SCO would have the court
believe this information is readily produced with a keystroke or two. Whereas,
the reality of producing everything "AIX" and "Dynix" is
neither practical, nor relevant, to the case currently before the court....

First of all, such a simple 'unstructured query' would result in every single
line of code ever written by IBM under AIX; including (but is not limited to)
every application IBM has ever developed or ported to AIX, every product
enhancement, every customisation, every market adaptation, as well as every
R&D project that never panned out. Needless to say, this plethora of
information would be substantially more than the court has ever granted SCO
access to - and well beyond that which could be reasonably expected of IBM in
assisting SCO with their discovery.

Second, each of these 'simple' queries would only need a few bazillion cycles to
process, especially if IBM is expected to include all the change metadata.
[Anyone have a spare Quantum Computer kicking about?]

Third, the resulting 'products' from such a query could literally take
months/years to manually sanitise - ensuring any unrelated IP wasn't being
improperly divulged to SCO. After all, the inadvertent disclosure of some
third-party and/or jointly-developed IP could carry some serious legal
ramification for IBM, right?

[As illustration of this stupidity: "...Hi there Company ABC, this is IBM.
Do you mind if we release the source code for your data mining product to SCO?
Our CMVC query reveals that we jointly ported and marketed your product for our
AIX systems between 1996 and 1998? Now we have SCO somehow thinking this might
be relevant to their case against us."]

Fourth, assuming IBM goes along with SCO's recommended electronic format - the
resulting "Mt Everest" of storage tapes needed to transfer this volume
of information could quite easily eclipse the "paper mountain" already
before the court [But then, we all know how much these legal folk like their
"hardcopy", right? <wink>].

IN THE ALTERNATIVE:
A properly structured query, directly related to the material requested, is NOT
"unduly burdensome" in and of itself. However, the sanitation of any
product material would still result in a considerable amount of time and effort
on the part of IBM's analysts and legal teams [read weeks vs. months/years].

Theoretically, one might postulate that SCO is attempting to tie up the IBM
development and legal teams on purpose, with all these requests and all. Hmmm,
now who might this benefit most me wonders....

[FLAME OFF]

[ Reply to This | # ]

Transcription??
Authored by: darkonc on Monday, August 30 2004 @ 08:35 AM EDT
Is anybody working on a transcription? If not, then we should get started quick.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: Anonymous on Monday, August 30 2004 @ 10:01 AM EDT
<< The rest of the document is just SCO being about as nasty as you ever
see in legal documents. >>

...my last breath I spit at thee.

SCO's finished.

[ Reply to This | # ]

Why SCOX *REALLY* wants intermediate versions
Authored by: bliss on Monday, August 30 2004 @ 10:15 AM EDT
Lets accept, for just a moment, SCOX's strange derivative works theory.

Look at the JFS code in Linux. Look at the very first version. Its a verbatim
copy of the code from OS/2, just placed as a reference.

IBM licensed Unix and received source code. This source was, obviously,
entered into CMVC as a reference, just like OS/2 JFS code in Linux.

The licensed Unix code was inspected, digested, and many things were done to
AIX based on this code. The releases are completely sanitized, none of this code
can be found, and that goes double for the stuff that got contributed to Linux,
but the code *exists in the CMVC repository*.

You can just imagine SCOX on the loose with this information. "See, your
honor, our code is in AIX!". Of course, some poorly written code in the
repository, commented up by an IBM programmer describing its failings, then
rewritten from scratch would still qualify, in SCOX's twisted world view, as a
'derivative work'.

There isn't anything in CMVC that will save SCOX from the wrath of IBM, but
there are things in there that would cause discovery to drag on until Darl's
retirement party if they were disclosed.

This is all academic, btw, as SCOX is totally, completely, beyond recovery
toast. They're toast as a going concern. They're toast as a litigation engine.
They're toast as an acqusition target. They're toast as a mark to be sold by the
creditors committee once they enter bankruptcy because no quality Linux vendor
would want to associate with the name. Toast toast toast ...





---
Information becomes fragmented, knowledge does not. What causes fragmentation in
information is scholasticism - Ramitani

[ Reply to This | # ]

CMVC stories...
Authored by: Anonymous on Monday, August 30 2004 @ 10:36 AM EDT
I once heard one fellow refer to CMVC as the "Scientology of Version
Control"... you either embrace the system as a whole or you forget it
completely.

Of course I've also heard a financial kind of guy claim that SAP is the
"Scientology of Financial Systems" but he admitted all such packages
can
qualify that way-- they work to exclude other systems.

The stories I hear though...

Some systems are made to be easy to deal with... RCS, CVS, etc...

[ Reply to This | # ]

Using Microsoft Anti-trust defense?
Authored by: MT on Monday, August 30 2004 @ 10:40 AM EDT
Perhaps SCO has decided to use Microsoft's anti-trust defense? If they can just
get the judge mad enough at their ineptitude/disingenuousness to say something
bad about them, they can retry the whole case because of the judge's
"bias" against them.

[ Reply to This | # ]

From another experienced industry participant
Authored by: Anonymous on Monday, August 30 2004 @ 10:49 AM EDT
I've worked under the source code control systems for companies that are
household names, the firmware in something on your desk probably has been
compiled under something I've touched in my past. The proposition that somehow
big companies have magical source code control systems that can show the clear
lineage of any operating system is laughable at its face. SCO, for example,
cannot establish a clear lineage with their own source-code control system from
Unixware back to SCO Unix back to Xenix, how could they expect IBM to do so?

Just a thought from an annoyed geek.

[ Reply to This | # ]

SCO's Opposition to IBM's Motion to Strike Chris Sontag's Declaration
Authored by: swkl on Monday, August 30 2004 @ 03:18 PM EDT
So when are we going to hear the judge deciding on all these motions? Seems like
a lot of work to go through them!!

[ Reply to This | # ]

The Problem With Open Law
Authored by: Anonymous on Monday, August 30 2004 @ 05:35 PM EDT
This process seems susceptible to trolls. All evil company "A" has to
do is put one or two clerks on part-time duty posting trolls on Groklaw to soak
up the available analysis bandwidth.

[ Reply to This | # ]

SCO is purposely lying AGAIN
Authored by: Anonymous on Monday, August 30 2004 @ 05:42 PM EDT
The response is riddled with errors or misrepresentations again. Example: they
quote from IBM's documents about use of CMVC to track of released versions, then
try to claim it gives easy access to every intermediate version, which is not in
the IBM text (and is untrue - it only tracks checked-in work, for example, and
even then, if such work is untagged it can be difficult to find all pieces.
They ignores sandboxes and personal work areas, etc. In short, they are stupid,
or know they are wrong and are lying.

They also do nothing to show Sonntag is "expert". Comments about
being "industry participant" do NOTHING to clarify ability, or
inability, to do squat. Along the same lines they do nothing to refute IBM's
comments.

Even the part about "many weeks" as opposed to "many months"
seems misleading. Last I checked, months were made up of weeks. About 4.3 of
'em. Yet they want the court to overlook their comments about
"millions" of lines, now perhaps either 0 or less than a few hundred.
Or to ignore their comment about 25,000 years to review currently held material
(and by extension, millions of years to review the billions more lines they
request). Or to ignore that they are unable to show any infringing code in
public without them being set straight by true experts and not flim flam guys
like Sonntag.

SCO also fails to note:

a) IBM already produced everthing they were required to produce, and a lot
more.

b) A *reasonable* explanation of why they should be allowed to go on a fishing
expedition.

c) A rebuttal to how they would respond to the materials in a timely way, ie
within the lifetime of the solar system. Especially when they LIED about having
proof before, LIED about being able to show it, LIED about having checked code,
LIED about having "three teams" which found "millions of
lines" of copying, LIED about the basis of the suit - again and again, with
blatant stock manipulation and subversive connections to a convicted monopolist
THAT JUST HAPPENS TO COMPETE WITH IBM. Hmmm. Isn't there something called a
"sham" test?

SCO folks are LIARS.

Isn't it interesting Senator Hatch's son at the top of the page? The Senator
who lied about underlings using dirty tricks to raid files of election foes, and
refused to take responsibility for actions of underlings when found out?

[ Reply to This | # ]
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