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Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linux?
Tuesday, October 19 2004 @ 04:27 PM EDT

Here's the scoop from today's hearing. We had two eyewitnesses there today, and here is the first report, from Frank Sorenson. The summary is this: each side argued its position, SCO as to why it needed more AIX and Dynix code and remote access to CMVC etc., and IBM as to why it's a needless burden and all a red herring anyway, that IBM has already given them what they need.

They talked again about SCO wanting to travel from Aurora, NY to LA and asking for a map to China. IBM's David Marriott said that now SCO is not only asking for a map to China, which won't help it get to LA, but it wants every version of every map of China, including all the drafts, and all the maps of all the roads in China, including all the roads ever contemplated but never actually built.

At the end of the hearing, Judge Brook Wells ordered the following:

1. parties are to prepare and exchange privilege logs in the next 30 days -- this apparently has to do with the hush hush emails they have been signifying about in the courtroom but that we don't have information about, because it is sealed;
2. IBM was asked if it would be willing to provide affidavits from the Board of Directors and their executives that they have produced already all the documents they have about Linux, and IBM said they would, so Wells said to do that.

Judge Wells took the rest under advisement. The court hearing minutes (not transcript) are now available from the court. And now for the details.

Details, and this is now a composite from Frank and Chris Brown, who has also added his impressions.

SCO had, from their count, about 12 lawyers there, but only three sat at the table and only two spoke, one of the new attorneys on the case, Sean Eskovitz, and Frederick Frei. The silent third was the other new SCO attorney, Edward Normand. Brent Hatch was there and so was Kevin McBride.

Both Frank and Chris say that Eskovitz did a wonderful job of representing SCO, and they both say he is by far the best lawyer to appear for SCO that we've seen so far, more on David Marriott's level. Both say he was not better than Marriott, but at least this time it seemed a proper match. He was pleasant and clear, maybe not too up on all the details, because it's his first appearance, but what he said, he said well.

They are divided in their opinion of what Wells seemed to accept, with Chris thinking she might well give SCO a bit more discovery, while Frank said he couldn't really tell how she was leaning, if she was, except for one thing. They both report that SCO pulled something that she didn't seem to like and that seemed to make Marriott angry. SCO read from a confidential email, out loud, in open court. I won't report on the details of that, because I think it would be wrong. IBM pointed it out to the judge, and when SCO again tried to read more, the judge curtly cut him off.

Both think, from what was said in court today by SCO that the 3rd Amended Complaint probably has to do with AIX for Power code, that SCO alleges IBM didn't have a license to put AIX System V code into AIX for Power. Groklaw presented some research on that very issue back in August, showing that SCO was aware back in 2000 that System V Release 4 code was used in AIX 5L, the successor to Project Monterey, and that it was used in the Power platform. We deduce it because we found SCO displaying on its own website a page mentioning AIX 5L in glowing terms, including telling about its own contributions to AIX 5L, not to Project Monterey, and also mentioning that AIX 5L worked on Power and that it included System V Release 4 code.

SCO referred to 1992 depositions by David Frasure and Otis Wilson in the BSDi case, which Groklaw has obtained and will be presenting to you later this week, and they claim the depositions contradict their testimony about derivative code in this case. (But the simple fact is, both Frank and Chris pointed out, the BSDi case was about different code, a different product, and a different license. Apparently, IBM did not mention this yet, at least not today in court, but we trust they will at some point, so SCO seems to be comparing apples to oranges.) The privileged email refers to this AIX for Power situation. And that is all I intend to say about that. You can read it in the transcript eventually unless it get redacted. Whatever SCO does, or others do, I respect confidentiality rules on the part of the court, and until it's clear this is public, it isn't, in my view, appropriate to talk about it in public, out of respect for the court.

As you know, motions are in the ABA format, like symphonies. So SCO went first, then IBM, then SCO got to rebut. In this case, IBM got a final minute or so as well. So here are the arguments:

SCO's Opening Argument -- We Need More Code and Here is Why

Sean Eskovitz opened by saying that this is a contract case. What SCO wants is remote access to CMVC for AIX code and notes and the equivalent for Dynix. Why they need it is to prove that IBM violated its contract. He mentioned the email as an example of something that they just happened to stumble upon in boxes of materials IBM provided. If they had access to CMVC, if any programmers were to have left notes about whether they had the right to use the code in Power platform, it would be helpful to SCO in their case. And the fact that this email turned up shows something like that could show up in CMVC. If it's there, they feel they have a right to it. They are not relying on that email itself, however, just using it as an example.

The court ordered IBM to produce certain materials in discovery, and they have failed to do so. They have provided snapshots, but that hasn't allowed SCO to trace the programming history. So they seek CMVC and RCS for Dynix to gain access to draft and unreleased versions and design documents, because it relates to their contract claims.

He referred to the Pfeffer declaration regarding Section 2.01 of the contract agreement saying that it protected the full contents of source code in derivative works and modifications. He then brought up the Frasure and Wilson depositions from 1992, which he says IBM provided but they didn't have time to fully review prior to doing the depositions. They need all the discovery to defend themselves against IBM's counterclaims, specifically counterclaim 9.

SCO's theory is this: If B is a derivative of A, and C is a derivative of B, then C is a derivative of A. SCO owns A, so it owns C, under their theory of what the contract says.

It seems impossible to believe that IBM has turned over all the documents and email from the Board of Directors and the executives, because there is so little. There simply must be more.

Then Mr. Frei spoke. He said he would speak for 5 minutes, but both eyewitnesses timed him independently at 13. He told the judge that it is very easy for IBM to provide access to CMVC. SCO, back in the Project Monterey days, had such access and they had password access to certain areas. They are asking for remote access so that they don't burden IBM. They'd rather go searching for themselves anyway. What they are asking for is about 40 GB of code, and that's no more than a common hard drive on a laptop. It's maybe 10 DVDs, so it's an easy thing for IBM to provide what they are requesting, even if IBM does it themselves. So that's the opening shot, the A section of our symphony.

IBM's Argument - All the Drafts of All the Maps of All the Roads, Built or Contemplated, in China Won't Help SCO Find LA

David Marriott spoke, as usual, for IBM. He reminded the court that SCO has now filed between two and three hundred pages of memoranda about what they want and why they want it, but all the words boil down to only three things: they want a paper trail, they want more from IBM executives and the members of the Board, and they want remote access to CMVC.

He listed five reasons why IBM should not have to provide what SCO is requesting:

1. They asked for this before and it was denied them. Nothing has changed.

2. What they are asking for isn't relevant to their claims. If you want to go from Aurora, NY to Los Angeles, and you ask for a map, you need a map to LA. They not only are demanding that IBM provide them with a map to China instead, they are demanding every draft of all the maps of all the roads that have ever been built and all the ones contemplated but never built in China over the last 20 years. They already have what they need: System V and Linux. Bingo. Their map to LA.

3. SCO's requests place an undue burden on IBM. SCO's attorneys say that it's easy for IBM to comply. While Marriott said he personally is not an expert on CMVC, neither are SCO's attorneys, but IBM's expert witness, Joan Thomas, has already told the court that it *isn't* trivially easy to comply, that it would require many weeks, perhaps months to do what they are asking. As for giving them remote access, it's not a feasible option. It's one thing to grant that to a partner, it's quite another to grant it to an opponent in litigation. There are many other projects, hundreds of them, with proprietary code and information that SCO surely has no right to access.

4. SCO has not produced one shred of evidence of infringing code. Nothing further has been produced because there is nothing to produce. They have it all already. They have been given 900 million lines of code, and there is nothing there, nothing infringing. It won't help to give them now another 2+ billion lines of code, which is what they are requesting.

He referred to the confidential SCO email that refuted the 1999 study and showed that there is no infringing code. He pointedly said that he would not read their confidential email in open court, unlike what they just did with an IBM confidential email. He handed it to the judge instead.

He added that Judge Wells ordered that they get the AIX code that IBM produced within a week of the order. They were supposed to look at it, find infringing code and then on the basis of any infringement, ask for more discovery related to that infringing code, specific files, they found. But they didn't find any infringing code.

5. All these issues about AIX and Dynix are before Judge Kimball already in connection with IBM's motions. Marriott pointed to a stack of papers about 2 feet tall in front of IBM attorney's Todd Shaughnessy, at the table. That, he said, is everything that is before Judge Kimball on these very issues. He has the matter more fully before him. If he finds for SCO, then it would be appropriate to come back and argue these matters before Judge Wells, but not now. He pointedly said it was not Judge Wells' decision to make at this point, because if Judge Kimball finds for IBM on their motions, it's all moot. There could conceivably be conflicting rulings if both Wells and Kimball decide the same issues independently.

As for the seeming lack of emails from the Board of Directors and executives, that is actually quite normal. They don't have any more. When IBM asked SCO for the equivalent discovery, SCO said that Darl McBride infrequently uses email, so why is it hard for them to accept that IBM executives also have no email to turn over? IBM would like SCO to provide equivalent discovery from their executives and Board.

Counterclaim 10 compares SCO's code to Linux. IBM then pulled out SCO's own chart from an earlier appearance showing HP, Sun and IBM as being licensees. IBM pointed out again that SCO declared HP and Sun free and clear without needing production of code. Why is IBM any different?

SCO's Rebuttal

Eskovitz then spoke again. As he was called on, Judge Wells asked him to address the question of how SCO's 3rd Amended Complaint affects these discovery matters. This is the part that gets interesting, and from what I've heard so far, I suspect that SCO added the 3rd Amended Complaint when they did because they hope it will get them over and get access to the code they have been pining for since this all began. Their problem is, IBM hasn't yet, to my knowledge anyway, replied, so I can't quite see how it relates to this hearing. But discuss it they did. SCO's position was that they need the discovery in connection with their contract claims, and they seemed to be distancing themselves from Linux and talking more about IBM and whether or not they had the right to use AIX code, which SCO defines in totality as derivative of Unix System V, something IBM obviously disputes, for AIX Power platform. SCO needs the discovery because of IBM's counterclaim 9. SCO wants to show that IBM overstepped their license in their use of AIX code to AIX Power. [Marriott had already said IBM was willing to stipulate that counterclaim 9 was limited to whether or not IBM infringed SCO's copyrights in AIX and Dynix, excluding the Power platform, an issue that obviously was not being contemplated anyway when IBM wrote the counterclaim, because it was not in the case. Marriott personally wrote that counterclaim and he knows what he meant.] SCO said, Sure, they'd like to limit it now, to exclude the AIX Power code. Of course, they'll do that now. And IBM is trying to say that Judge Wells has no right to control her own court. This matter is before her.

IBM's Last Word

SCO's copyright theory of derivative code is bogus. IBM never said that Judge Wells wasn't in control.

Judge Wells then listed the two things, above, that she wanted, and IBM asked if SCO could be ordered to provide affidavits from their executives and Board, and Judge Wells said not at this time, because there was no motion requesting it formally.

UPDATE:

Bob Mims' coverage is here. And Pacer reports that SCO has finally decided to depose somebody:

10/18/04 -- 325 Certificate of service re: ntc deposition David Bullis by SCO Grp (blk) [Entry date 10/19/04]

10/18/04 -- 326 Certificate of service re: ntc deposition William Sandve by SCO Grp (blk) [Entry date 10/19/04]

Info on Mr. Sandve, who I think has a great face, here.


  


Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linux? | 424 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here
Authored by: corran__horn on Tuesday, October 19 2004 @ 04:48 PM EDT
and remember those <a href=" "> </a> tags

[ Reply to This | # ]

Corrections Here
Authored by: corran__horn on Tuesday, October 19 2004 @ 04:49 PM EDT
Post them so we can make them.

[ Reply to This | # ]

Those with the hooks
Authored by: corran__horn on Tuesday, October 19 2004 @ 04:50 PM EDT
The fish are here.

[ Reply to This | # ]

Server load
Authored by: sjgibbs on Tuesday, October 19 2004 @ 04:55 PM EDT
Please respect the server while PJ types manically...

A gigabit doesn't come for free, and once you've lost it, your not likely to
find it down the back of the TV.

SJG

[ Reply to This | # ]

Official "The SCO Group" Positions
Authored by: AllParadox on Tuesday, October 19 2004 @ 05:04 PM EDT
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

P.J. says you must be on your very best behavior.

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

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Report
Authored by: blacklight on Tuesday, October 19 2004 @ 05:10 PM EDT
If the hearing is nothing more than a rehash of the motions and the
argumentation contained therein, then SCOG is in trouble - I would definitely be
interested in what clarifications Judge Wells wanted.

Her decision to take everything under advisement is understandable, given that
she had previously ordered all parties to stop stuffing her mailbox with their
motions and that she wants to go over any new information that might have
transpired during the hearing.

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Report
Authored by: Latesigner on Tuesday, October 19 2004 @ 05:11 PM EDT
2. IBM was asked if it would be willing to provide affidavits from the Board of
Directors and their executives that they have produced already all the documents
they have about Linux, and IBM said they would, so Wells said to do that.

She's going to turn down SCO's request for more discovery.

I'm guessing the e-mail thing is just a distraction.

[ Reply to This | # ]

""And now for the details."
Authored by: Cletus the Yokel on Tuesday, October 19 2004 @ 05:39 PM EDT
And? is this a cliffhanger? three-reel serial? Tune in next time for the
exciting concusion?

Sorry, I forgot. It's a soap opera :-)

[ Reply to This | # ]

What exactly is a privilege log?
Authored by: Anonymous on Tuesday, October 19 2004 @ 06:07 PM EDT
What exactly is a privilege log?

[ Reply to This | # ]

Reading closed documents in open court
Authored by: Anonymous on Tuesday, October 19 2004 @ 06:29 PM EDT
From the way this was presented, it seems to me as if SCOX read the email
deliberately, to get it into the public's eye - a "mistake" that they
can spin into a PR win?

And now that the email has been read in court, will it be stay on the court
records, or will the text read be stricken?

My guess is that SCOX wants it on the record, so that when the transcript comes
out (maybe around November 1?) if the email isn't stricken, that they can put it
front-and-center on their prosco.net site... my, what a marvelous little
co-inki-dink that would be, no?

I know the thing about never attributing to malice what can be explained by
stupidity, but Occam's razor says the most likely explanation is usually correct
- and you have to ask - what's more likely: that seasoned lawyers make a
"mistake" of this magnitude, or that SCOX is attempting to use dirty
tricks to make IBM look bad?

Yeah, that's what I thought too.

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Reports
Authored by: producer on Tuesday, October 19 2004 @ 06:31 PM EDT
And speaking of McBride, how come he gets to sit behind the railing? And being
the CEO he should dress better.
The e-mails were a feint and Marriott treated them that way.

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Reports
Authored by: Anonymous on Tuesday, October 19 2004 @ 06:39 PM EDT
I won't report on the details of that, because I think it would be wrong. IBM pointed it out to the judge, and when SCO again tried to read more, the judge curtly cut him off.

One thing I'd like to point out here. If we are to be "fair" then if IBM were to "accidently" read out loud something SCO had sealed, I assume we would not report that as well.

Although I believe IBM to be a class above that. Cheers.

[ Reply to This | # ]

Why the email is irrelevant
Authored by: AdamBaker on Tuesday, October 19 2004 @ 06:47 PM EDT
It seems likely to me that the confifdential email is the same one that PJ has
already discussed in a previous article <a
href=http://www.groklaw.net/article.php?story=20040830102724105>here</a>
;
<p>
As that article provides the links that explain that what IBM were alleged to
have done was within the scope of their license it might be useful to highlight
it before any journalists get the wrong impression from todays hearing.

[ Reply to This | # ]

Who is "they"?
Authored by: rao on Tuesday, October 19 2004 @ 07:09 PM EDT
They refered to 1992 depositions by David Frasure and Otis Wilson in the BSDi case, and they claim the depositions contradict their testimony about derivative code in this case. (But the simple fact is, they point out, the BSDi case was about different code, a different product, and a different license. Apparently, IBM did not mention this yet, at least not today in court, but we trust they will at some point, so SCO seems to be comparing apples to oranges.)

I'm confused. Who is the "they" in "they point out". It can't be IBM because a little later you say that "...IBM did not mention this yet..." So are you saying that SCO themselves pointed out that the so called contradiction is not actually relevant to this case? This does not seem likely but I don't see how else to interpret it.

[ Reply to This | # ]

I still fail to see
Authored by: inode_buddha on Tuesday, October 19 2004 @ 07:11 PM EDT
I fail to see how unreleased versions of anything have anything to do with
contract claims if IBM had a full license for internal use. Other factors I see
include the entirely different architecture (Power), and didn't IBM sign with
ATT/USL long before it existed? Let alone the transferrability and change of
interest issues from OldSCO --> NewSCO.

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

They want WHAT!
Authored by: Tsu Dho Nimh on Tuesday, October 19 2004 @ 07:12 PM EDT
"Sean Eskovitz opened by saying that this is a contract case. What SCO
wants is remote access to CMVC for AIX code and notes and the equivalent for
Dynix. .... If they had access to CMVC, if any programmers were to have left
notes about whether they had the right to use the code in Power platform, it
would be helpful to SCO in their case."
"And the fact that this email turned up shows something like that could
show up in CMVC."

That shows he knows NOTHING about CMVC ... it's not a place to store emails,
it's a place for source code. And to say they want "remote access" -
they want IBM to let them rummage freely through that whole huge database,
hoping to find something that resembles evidence.


"He told the judge that it is very easy for IBM to provide access to CMVC.
SCO, back in the Project Monterey days, had such access and they had password
access to certain areas."

That was The Santa Cruz Organization, and they had LIMITED access to password
protected areas.

"They are asking for remote access so that they don't burden IBM. They'd
rather go searching for themselves anyway."

Of course they would ...

[ Reply to This | # ]

What Does Any of This Have to Do With Linux? Entirely new lawsuit?
Authored by: Anonymous on Tuesday, October 19 2004 @ 07:29 PM EDT

Do we have a case here of TSCOG raising an issue which is compulsory, that is, if they don't raise it they will forever lose the chance?

Why don't TSCOG just file a whole new lawsuit? I mean, why not from the strictly legal standpoint. I realize it would be a big embarrasment to them, but they seem immune to that kind of thing anyway.

The original lawsuit was about Linux, this new question looks like it is about AIX (based upon best estimates, of course) so why not have an entirely new lawsuit?

[ Reply to This | # ]

SCO claims against it is a contract case - let the dogs of war be released then!
Authored by: Anonymous on Tuesday, October 19 2004 @ 07:31 PM EDT
SCO has claimed again that the case against IBM is a contract case. They are
trying to contract their complaint against IBM to the case of IBM using Unix
System V code on Power processors - notable is the lack of claim against
Linux.

However, all this argues for are the following:

1. Partial Summary Judgment should be granted on CC10. This has nothing to
do with the contract.
2. SCO should be found guilty of copyright infringement of IBM's Linux code.
This has nothing to do with the contract. SCI should then be prohibited from
distributing Linux - for which they have many customers to lose.

Of course, SCO still has the problem of how the contracts are to be
interpreted in the first place - since in almost everyone else's point of view,

they are misinterpreting the contract for Unix System V. Also, Novell can
negate their contract claims - which it did.

Thus, despite their moves for more discovery, IBM's motion for partial
summary judgment on the contract claims should go ahead - since it does
not need whatever SCO can find in discovery to adjudicate.

These partial summary judgments motions by IBM have been clearly and
strongly argued. We are just waiting for the guillotine to fall on SCO's head,

despite all the squirming about discovery. The fact that they are doing
nothing else to prove their points on these motions, while arguing for more
discovery, shows more how vacuous their arguments are.

These partial summary judgments will make SCO's discovery claims moot -
gutting the case essentially, and punishing SCO to boot.

Now that SCO is claiming this is a contract case, obviously Redhat and
Autozone should have their day in court also. Their cases should now go
forward since the central issue in each case - of copyright infringement will
not be settled by the SCO-IBM case.

I'm waiting on judgment in Novell's case against SCO also. Where's the proof
that SCO had the documents to clearly prove transfer of copyrights to SCO?

Notably, SCO has no documentation (ZERO, ZILCH, NADA) that the copyrights
were ever transferred from old-SCO to itself (new SCO). Old-SCO is now
Tarantella. If any copyrights were transferred to old-SCO, they should now
be owned by Tarentella, not new-SCO. This should be brought up by some
lawyer from Redhat and Autozone. Autozone is being bright in requesting
the proof of transfer of copyrights to SCO from Novell.

Another thing, SOMEONE has to bring up the fact that Novell DID NOT OWN
ALL the copyrights to Unix System V. This will drive holes into SCO's cases
since it has to specify which code was infringed upon in both the Redhat and
Autozone cases.

Bring on the DOGS OF WAR against SCO! I would love to see active legal
combat on four fronts against SCO. It would be better than wrestling on TV.

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linux?
Authored by: Anonymous on Tuesday, October 19 2004 @ 07:47 PM EDT
Symphonies are not usually in ABA format;the classical symphony is often written
in sonata form, but there are many kinds of symphonies. The Da Capo aria, the
staple of many baroque and classical operas, is in ABA form.
Dr Dave

[ Reply to This | # ]

SCO's theory
Authored by: Anonymous on Tuesday, October 19 2004 @ 08:22 PM EDT
<I>SCO's theory is this: If B is a derivative of A, and C is a derivative
of B, then C is a derivative of A. SCO owns A, so it owns C, under their theory
of what the contract says. </I><P>
I know that's what they mean, but did they actually argument that in such clear
terms?<P>
I mean, nobody is going to buy that..

[ Reply to This | # ]

12 lawyers?
Authored by: Anonymous on Tuesday, October 19 2004 @ 08:23 PM EDT

Safety in numbers? Trying to intimidate the judge?

[ Reply to This | # ]

What Work Has SCO Done With the Code It Has Already from IBM????
Authored by: JamesKatt on Tuesday, October 19 2004 @ 09:15 PM EDT
Clearly, Judge Wells' original orders for discovery ordered SCO to do work
with the AIX and Dynix code it has already received from IBM. And in order to
do more discovery, SCO has to work with that code then come up with a good
reason to ask for more. According to IBM, SCO has received already 900
million lines of code.

The problem I see is: What actual work has SCO done with the code it has
received?!!!! Does it have any experts comparing the AIX and Dynix code with
the Unix System V Code? Has it found anything?

If SCO has not done any work on the code it has received, then Judge Wells
should dismiss SCO's request for more discovery. For how can SCO ask for
more code if it hasn't even begun work on the code it has?

If SCO admits it cannot find any infringeing code in the code it already has
from IBM, then I would suggest that IBM file another motion for partial
summary judgment on a new counterclaim: That IBM's release versions of AIX
and DYNIX do not infringe any copyright owned by SCO.

Since the intermediate code has always been internally used and
nondistributed code, it shouldn't violate the copyrights per the contract, even

with SCO's interpretation of them.

IBM can always use the standard for determining copyright infrigement as it
used it in CC10.

---
I ANAL

[ Reply to This | # ]

Corporate Secrets
Authored by: Night Flyer on Tuesday, October 19 2004 @ 09:28 PM EDT
In my days of working for a major multinational, I ran across three types of
confidential information:

1.) Confidential = Secrets kept from competitors, and the general public.
Example: Marketing plans. We were doing a test market for a new product and we
didn't want competitors flooding the test market area, which would confuse our
reading of customer acceptance.

2.) Sensitive = Secret from basically everyone. Examples: Expense account data,
salaries, where management didn't want people to know some were paid differently
than others, personnel files with medical info, birthdays, addresses, etc.
(Potentially embarassing, but not corporate-ending information if leaked.)

Also, in this category was information about management's gross errors, which
they swept under the rug, mainly to protect the guilty (sensitive to individual
careers).

3.) I.P. = To be kept secret from people who might set up competing businesses.
Example: All of our competitors had equivalent technology and product knowledge,
so maintaining corporate secrecy about our products was somewhat irrelevant, but
breach was punishable by dismissal.

-------------------------------
How this relates to SCO vs IBM:

a) I can't decide if Project Monterey falls into the confidential or sensitive
category for IBM and SCO, (probably both).

IBM claims it extracted its self from this project in a proper, timely and
professional manner. It appears that SCO disagrees and/or is searching for
vengance.

SCO seems to be searching for sensitive information (ie: IBM management
errors).

b) I note that there are several UNIX type operating systems. It appears that
SCO is attempting to keep this technology away from anyone who might build an
equivalent or better operating system (ie: stifle innovation in its field).

I find this annoying because SCO does not seem to be advancing its flavour of
UNIX, by legitimate innovation. It only seems to be trying to take advantage of
the work of others.

[ Reply to This | # ]

The CMVC and such.
Authored by: Anonymous on Tuesday, October 19 2004 @ 09:44 PM EDT
I have gotten a headache trying to figure this out, please correct me if I'm
wrong:

AIX/Dynix code, in and of itself, couldn't be in violation, since it is covered
by the contract. They have all the code for the released versions of AIX/Dynix,
so they can compare them to Linux code easily.

What SCO wants to find is if someone created something for AIX/Dynix that they
didn't use in AIX/Dynix, but then later used in Linux instead. Their theory is
that if it was created for AIX/Dynix first, that makes it part of AIX/Dynix,
regardless of the fact that it was never used in AIX/Dynix, so it can't be used
in Linux.

If I write a song for A, and during the process write and discard a certain
passage of notes, but later use those notes in a song for B, how can A claim to
own B's song?

What about code that was written for AIX/Dynix, but never used anywhere? Does
SCO claim they own that?

Oh, yea, I forgot, "all your code are belong to us".

What if they found it was the other way around? Code created for Linux ended up
in AIX/Dynix? Would that make AIX/Dynix subject to the GPL? That may be what
they are scared of.

BTW, if I were a programmer, the theory that Linux could not possibly have
developed so fast without stealing code from Unix would be VERY insulting.

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linux?
Authored by: AMc on Tuesday, October 19 2004 @ 11:14 PM EDT
Looks like the new legal eyes have thrown their best at the court in the attempt
to make anything stick long enough to give them an out. In my non-lawyer
opinion, this looks like SCO is attempting to lay the groundwork to push IBM to
openly question whether they 'own' Sys V. If IBM cooperates, then they can ask
for a stay until the Novell matters are settled. One more lawsuit temporarily
frozen, another few months of existance for SCOG as a company.

That's if the courts and IBM cooperate. I suspect from their manner so far IBM
will merely ignore the ploy and continue to focus on the lack of evidence.

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linux?
Authored by: Anonymous on Wednesday, October 20 2004 @ 12:24 AM EDT

IBM asked if SCO could be ordered to provide affidavits from their executives and Board, and Judge Wells said not at this time, because there was no motion requesting it formally.

Is that a hint to IBM? Enter a motion formally requesting affidavits from SCO executives and then we'll see what we can do?

Just wondering. IANAL, so I don't have a good feel for how judges might or might not suggest a course of action.

[ Reply to This | # ]

  • How much rope? - Authored by: Anonymous on Wednesday, October 20 2004 @ 01:18 AM EDT
What SCO is looking for, but what I have not seen them argue...
Authored by: Anonymous on Wednesday, October 20 2004 @ 12:58 AM EDT
Let me preface these comments by saying that I am NOT "prosco", but I can kind of see their point. They want access to version control copies of the source code. What you see in the final release versions of Linux that IBM has contributed to you can obviously say that there is NO CODE that can be logically determined to be infringing on copyrighted code. However, SCO is arguing (albeit very badly) that IBM may have taken the copyrighted code and obfuscated it to the point that what exists in the released versions is no longer close enough to the original copyrighted code to be detected by any automated tool (or deep divers from MIT). This is COMPLETELY hypothetical, but let's just say that IBM made the first internal version using the exact copyrighted code, then the second version was slightly obfuscated, the third even more so, the fourth yet again more obfuscated, so that by the time you get to the released version you could not tell the two had similar origins. Now this would definitely prove copyright infringement, and that is what SCO hopes to prove by getting access to CMVC and RCS histories of this development. At least that is this developers view....

[ Reply to This | # ]

AIX in POWER in 1991
Authored by: Steve on Wednesday, October 20 2004 @ 01:10 AM EDT
Hmm. We ran AIX on the POWER-based IBM RS/6000 in 1991. It appeared to have all
appropriate AT&T and Berkeley copyright notices in place.

I guess we should go back and re-read the AT&T license agreement to see if
it was limited to specific processor architectures, but that seems like way too
monumental a goof for IBM to make.

And, as PJ says, what does this have to do with Linux? If IBM indeed violated
its license by porting UNIX code to the POWER architecture as part of AIX, they
committed that violation long before Linus released his first code!

I don't understand the SCO people. I just don't.

---
IAALBIANYL

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linu
Authored by: Anonymous on Wednesday, October 20 2004 @ 01:58 AM EDT
This just goes to show you why no one trusts the court system. Here, in plain
site of the judge, one side clearly violates the rules, then starts to do it a
second time. The judge doesn't bother to sanction the individual, so she
encourages him to continue to behave badly. They allow SCO to file ridiculous,
redundant, and over length, memorandum after memorandum, and yet they keep
approving the filing of new ones. The Judges have no will to control either
their court rooms or their cases. They allow a plaintiff to ride roughshod over
a defendant that has done nothing wrong. This is why no one trusts our system.
They allow SCO to get away with consistently making contradictory claims to
different courts with out the least sanction. This is why everyone hates
lawyers. These judges are so concerned about being "fair" to the
plaintiff, that they have gone to the point of being patently unfair to the
defendant. Just because SCO is clearly going to loose the case, isn't a good
reason to allow them the run rampant as they have. Until we get judges that
will control their courts we won't ever have a decent system of justice.

[ Reply to This | # ]

What about Sontags declaration?
Authored by: Anonymous on Wednesday, October 20 2004 @ 02:44 AM EDT

Did it got discussed at all during the hearing?

H@ns

[ Reply to This | # ]

the tricky part, maybe not to the judge (hope so)
Authored by: jig on Wednesday, October 20 2004 @ 03:02 AM EDT
I think there are two tricky parts that the SCO lawyers are trying to sneak by
both judges, and while Marriot seems to fight the contentions head on (the
contract doesn't mean this, judge), these more subtle points might clear things
up for the judges as to why.

In the contract, there are two phrases that SCO seems to be using in either
double meaning or inferred meaning, to suit their current argument, but I think
it's a confusing bait and switch that doesn't hold any legal water.

The first is 'treated as'. JDS posted above that he's always had a problem with
people equating this to ownership, and he's absolutely right. A great quote:
"my family may treat you as family, but that doesn't make you my
brother". SCO wants 'treated as' to be construed as a granular rights
ownership clause, but in actuality it is only a restriction on a whole project
all together. If you have a 'software product' that contains and uses sysv code,
then that entire project, ONLY as a whole, must be treated as if controlled by
the stipulations under the sysv license. BUT, anything that isn't explicitly
sysv code, including the parts of the 'software product' that aren't sysv code,
can be disposed of in any way the owner (who wrote the code) sees fit. I think
the original wording was put in place so that someone couldn't put in only a
little sysv code into a software product and then claim the original sysv
license only covered what could be done with sysv as a lump whole, not little
bits. It was a granular restriction on sysv code, not on code that was sitting
next to it.

Which brings us to the other phrase, or word, : derivative. The contract uses
this word simply to describe works that have sysv code, ANY sysv code, in it.
SCO wants us to believe that the definition is instead the one used when talking
about copyright, and they aren't the same thing.

Deriviative, in copyright terms, means that someone looked at code base X, made
some changes, and then came up with code base X+1. X HAS to be somewhere in X+1
for X+1 to be derivative. Period. And the original copyright holder now has
rights over X+1 (at least in part). If instead X+1 was made because someone
looked at X and then wrote their own X+1 from scratch (really making it Y) then
it isn't derivative by copyright standards. Patents are another matter, as are
similarity contraints (in code, not fuction), but lets move on.

What SCO wants is to take the definition of 'dervative' as used in the contract
(anything that as a whole has sysv code in it) to assert that all of AIX is
dervative. But then, they want to use the (what I see as antithetical)
definition of derivative in copyright to extend SCO's ownership rights over code
it hasn't written.

I don't think they can legally do this, and I think they are trying to pull a
fast one. It took me a while to lay this out suscintly (I'm not a lawyer yet)
because SCO are always throwing around arguments, sometimes about contracts,
others about copyrights, still more about infringement, and it's all been a
confusing mess (on purpose I'm sure). I hope that the judges see it already, but
so far I haven't seen even Marriot make this clearer. It's already bad enough
that Frei is continually trying to apply patent rights to copyrights and I hope
this isn't lost in the noise.

Is this already clear to you guys? Is there a clear definition of the word
derivative in the contract that I've missed, or maybe a place elsewhere that
protects the sysv code granularly (making my inferred definition of 'treated as'
less strong)?

[ Reply to This | # ]

The Checkmate Theory
Authored by: trox on Wednesday, October 20 2004 @ 03:03 AM EDT
I do a lot of work through email and they don't usually come in
ones.

So...

coder->legal: Hey I've got this project I'm working on and it
looks like we might be stepping over the line on svr4
licenses.

legal->coder: We'll look into it.

Coder->legal: Got a lot of
time in this, how about it being O.K.

Legal->coder: We looked into it and it
'IS NOT O.K'

coder: delete

Now IBM legal team knows SCO is desperate for
something so they ever so accidentally include just the first email in with some
other discovery and SCO of course finds it and is just elated. IBM says give it
back it is privileged it's to our legal department from an employee.

SCO is
just so happy. Can't have it back we're going to show it to the Judge and blab
it to reporters in court.

So the mighty twelve can think of nothing else in the
discovery hearing and disregard arguing their original arguments (this really
works in IBM's favor) and only try to discuss this new evidence of evil IBM's
wrong doing.

SCO gets new discover on the emails and IBM submits the remainder
of the them found in the legal department and even though they are privileged
submits the rest as part of the discovery.

...Checkmate

[ Reply to This | # ]

Can SCO get out from under their claims about Linux?
Authored by: Anonymous on Wednesday, October 20 2004 @ 05:41 AM EDT
I've been waiting patiently (well nearly so) for SCO to get their comeuppance
over their claims about Linux. They've amended their claims once and are now
going for a second mutation of the case. Is it at all possible that they will
get away with all their bluster and flummery regarding Linux. I know IBM have
counter-claims and so on, but if the case changes sufficiently won't they become
obsolete?

It really galls me to think that they may sneak away from all their posturing
and bluster, having made a fortune at the expense of pension funds and innocent
investors and receive no punishment whatsoever.

It really is not fair, how can this be called justice?

I'm no developer, just a guy who uses Gnu/Linux for the sheer joy of it, and I
would really hate to lose the freedoms that this software gives me, all because
of corporate greed.

Please tell me they are going to get their just rewards, even if I have wait a
little longer for it.

[ Reply to This | # ]

EXPAND--Official "The SCO Group" Positions
Authored by: spuluka on Wednesday, October 20 2004 @ 07:55 AM EDT
I posted this on the off-topic area in Autozones notice of deposition yesterday.
As I understand and would LIKE to see this thread used, we WANT to hear SCO's
argument.

**1---------
How about extending the invitation for official positions to include SCO VARs
and Software partner firms?

The same ground rules would apply. I think this group of people might have some
valuable insight on the merits of the various cases. They may be more willing to
post in the "safer" rule environment of this new topic thread.

**2----------
I think the standards that we hold SCO posters to in this thread should also
apply to replies. If SCO employees and their partners must identify
themselves, so should any replies. If they must put their names on their
posting so should we. And I mean real names, not a alias that hides ones
identity.

This is only fair that the rules apply to both sides. I'm sure there are many
people here with good reasons to use handles and remain Anonymous that way.
Well, the same applies to SCO and their partners. If they have to ID
themselves, then so should the replies.


---
Steve Puluka
Pittsburgh, PA

[ Reply to This | # ]

I see thier point
Authored by: Anonymous on Wednesday, October 20 2004 @ 08:08 AM EDT
The A-C thing is very possible. I know they (SCO) have been arguing (poorly)
about this point for most of the case. I think it's plausible that IBM is up to
version "C" on a few things but didn't get called on it until now. As
far as the access to IBM's version control system I would have to disagree with
the opinions, and statements made here and IBM's position in court.
Granted I would try hard to keep a competitor/opponenet out of my systems, but I
work for a auto manufacturing plant, and I can pull drawings of every part of
every car or lawnmower that we have ever produced, or conceived of producing.
Just give me a make, year, and model. This would include each rough draft and
iteration of everything down to the spark plugs. As a side note, this version
control is handled by an open source package.
Back on topic. I think that SCO will probably lose this case, but I must admit,
I will always wonder if they just brought the case to late....
(I realize the case is extremely broad, this post is to focus on the one
point).

-Bardwick-

[ Reply to This | # ]

Is SCO trying to lose?
Authored by: Anonymous on Wednesday, October 20 2004 @ 09:29 AM EDT
From the trial: Then Mr. Frei spoke. He said he would speak for 5 minutes, but both eyewitnesses timed him independently at 13. He told the judge that it is very easy for IBM to provide access to CMVC. SCO, back in the Project Monterey days, had such access and they had password access to certain areas.

Supposedly SCO, in some earlier form, had access to CMVC. So they should have been able to come up with ONE person who had actually used CMVC. Do you know what this would make that person? An expert witness.

Instead SCO trots out some guy who had some "college courses" in version control systems and call that an expert witness. Then they seem confused that the credentials of this expert witness are being called into question.

Are they even trying to win?

On a side note: We finally learn why SCO wants all of the code in CMVC. Not for the code, but for the comments. Maybe some IBM programmer made a check-in comment that implies IBM stole something from SCO.

My personal opinion is "so what"? Most programmers have no idea all of the legal ramifications of how a certain piece of code came into the company's possession. What a programemer thought about the legality of the code is irrelevant.

If the best SCO can do is hope for some random comment in the IBM code to help them win their case, they are in some serious trouble.

[ Reply to This | # ]

Mim article
Authored by: LarryVance on Wednesday, October 20 2004 @ 10:19 AM EDT
It appears to me that an atribution to the wrong person is made in his article.


It appears that he should atribute to Marriot a comment about linux copyright
that he atributes to the TSG lawyer.

---
IAAE - TGIANAL
Larry Vance

[ Reply to This | # ]

TSCO vs. TSCOG
Authored by: Anonymous on Wednesday, October 20 2004 @ 11:15 AM EDT
SCOG really wants people to think they are "The Santa Cruz Operation".
Look at the "History of SCO":

http://www.sco.com/company/history.html

"1979 SCO founded as The Santa Cruz Operation by Doug and Larry Michels as
a UNIX® system porting and consulting company"

("We used to be 'The Santa Cruz Operation'")

"2001 Caldera Systems completes the acquisition of SCO's Server Software
and Professional Services Divisions, becoming Caldera International"

("Then we became 'Caldera'")

"2002 Caldera changes its name to The SCO Group (SCO), returning to the SCO
brand"

("Now we're 'SCO' again!")

Dude, you can't return to someplace you've never been.

From "http://www.tarantella.com/company/history.html"

"2001 Sale of operating system divisions to Caldera Systems, Inc"

Don't the terms "aquisition" and "sale" trigger some clause
in the APA between Novell and TSCO (oldSCO)?

[ Reply to This | # ]

Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linux?
Authored by: MplsBrian on Wednesday, October 20 2004 @ 11:20 AM EDT
Just wanted to add a 'nice job.' This story is done in a great format.

[ Reply to This | # ]

Quote from Bob Mimms - Is this correct?
Authored by: rsteinmetz70112 on Wednesday, October 20 2004 @ 11:41 AM EDT
" 'If at the end of the day Linux is not substantially the same as Unix,
it matters not how it got there,' Eskovitz said".

Is this correct or did he mix up the lawyers?

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

A Buffy The Vampire Slayer Type Foreshadowing?
Authored by: Eeyore on Wednesday, October 20 2004 @ 05:43 PM EDT
From a prior post about our chatty lawyer "friend"....
Sean Eskovitz, (Partner) born Santiago, Chile, October 31, 1970; admitted to bar, 1997, New Jersey; 1998, District of Columbia; 1999, New York. Education: University of Pennsylvania (B.A., magna cum laude, 1992); New York University (J.D., magna cum laude, 1995). Order of the Coif. Recipient, New York State Bar Foundation Award in Legal Ethics. Finalist, Orison S. Marden Moot Court Competition. Executive Articles Editor, Annual Survey of American Law. Law Clerk to the Hon. Paul V. Niemeyer, U.S. Court of Appeals for the Fourth Circuit, 1995-1996. Co-Author, with Gerald A. Feffer, "Unsealing Your Client's Fate: Obtaining Preindictment Access to Search Warrant Materials," Business Crimes Bulletin, September 1997. Assistant U.S. Attorney, United States Attorney's Office, Criminal Division, Southern District of New York, 1999-2003. Languages: Spanish. Practice Areas: Litigation; Business Crimes.

If this were a BTVS episode, I would say that his bio was a foreshadowing of his "lapse" in court. I mean come on...
1) He won the "Award in Legal Ethics" but was ONLY a finalist in the "Moot Court Competition" - that would seem to be backwards to me.
2) And he's the author of "Unsealing Your Client's Fate", absolutely priceless!

[ Reply to This | # ]

Advisement
Authored by: Anonymous on Thursday, October 21 2004 @ 03:04 AM EDT
Sorry to post it so late, (and also sorry if somebody else also made this
observation) but I think the advisement was pre-planned with Kimball. I suspect
they wanted to discuss the filings/oral arguments together to issue coherent
rulings.

We have at least two hints in that direction:
- judge Wells' assistant at judge Kimball's hearing
- judge Wells refused to rule on something that was before judge Kimball,
meaning they keep in touch
- they both took under advisment and judge Kimball has not issued its ruling
before judge Wells' hearing.

Each of the hints is not much, so that makes only 2 in total !

Loïc

[ Reply to This | # ]

Aurora NY a bad example
Authored by: Anonymous on Friday, October 22 2004 @ 02:51 PM EDT
Another late post.

But I just had to chime in on what a bad choice IBM made when they used the
example of going from "Aurora, NY".

I live in Aurora; the Town of Aurora that is near Buffalo. Meanwhile, there is
a Village of Aurora 200 miles away in the finger lakes. No relation. People do
get confused sometimes thinking I'm from the finger lakes. In New York,
Villages are submunicipalities of Towns, sort of like how Towns are
submunicipalities of Counties, etc. (no wonder taxes are so high in NY).

I have to wonder if there is a motive in the choice of "Aurora NY" as
the starting point. Neither the town or the village of Aurora is particularly
well known (well, each has its distinctions, with the village being the hometome
of the creator of "American Girl" - who is no pouring money into the
village, and the Town being the home headquarters of Fisher Price Co.) Did IBM
pick "Aurora" deliberately because it is an ambiguous place as a
"starting location". If so, I can't think of a reason for doing that.

[ Reply to This | # ]

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