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Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 |
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Thursday, April 21 2005 @ 02:30 PM EDT
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Judge Wells has issued her Order regarding the IBM Motion for Reconsideration. She has acknowledged that she was not fully informed before. Don't you admire that? I do. So she rules that IBM's motion for reconsideration is properly before her on the issue of burden.
So, for now, IBM does not have to turn over the files of the 3,000 individuals who have contributed the most to AIX and Dynix. That is deferred. They have to turn over for 100 individuals in 90 days, and then SCO can ask for more details if they want to. It's a much more balanced order. She also tells IBM to hand over all nonpublic Linux info. Obviously, she doesn't yet understand that there is no such thing. Could some of you kernel guys please write up how it works, and include urls and especially on code you personally offered that was not accepted and email it to me? I'll do an article then and explain clearly how it all works. I'd research it myself online from the public records, but I have a doctor's appointment right now, and I have to run. Thanks. Yes. You understood correctly. IBM won, and this is a major blow to SCO. Not to hear them tell it, of course.
Would you like to see what their PR department is sending around to journalists? Here you go: “We are pleased with the U.S. Magistrate Judge’s decision, which
reaffirms the essential elements of her prior order. The Court’s
decision should ensure that IBM now complies with its discovery
obligations and will provide SCO with information important to the
development of its case for trial. We look forward to presenting our
case to a jury next year.”
So funny. Anyway, here's an article on how PR is done, at least normally. After you read it, let's watch what happens. Normal reporters will report that this is their statement. Lackeys will write what a wonderful victory this is for SCO because now IBM has to turn over heaps of nonpublic Linux submissions, of which there are none in real life. How hilarious. They can't get their minds around a simple truth: what makes Linux different is that it is all done in public. But wait and see what happens. I'd be willing to bet you anything that their lap dogs will spin it just that way and make fools of themselves in the process in the eyes of anyone who knows how Linux is developed. It's delicious. As I write this, someone sends me the text of Maureen O'Gara's spin: The federal court in Utah hearing the $5 billion SCO v IBM case has told IBM that it has 75 days to turn over to SCO ALL non-public information relating to its Linux contributions, a year-old order IBM has been trying duck.
The caps and double underlining of the word ALL belong to Magistrate Brooke Wells and were used in her ruling Wednesday on IBM’s motion asking her to reconsider her massive discovery order of January 18. They leave one to speculate on her attitude towards IBM’s discovery delays.
The decision is believed to be a serious setback for IBM – fatal, if you believe SCO – and it will be interesting to see how IBM takes it. Will it now go meekly and do what it’s been told?
SCO claims that the Linux discovery IBM has been holding back goes to the “very core” of its claims The very core, eh? There's more, but I am laughing so hard I can't even type. So let's just sit back and have a fun laugh together. I think that this may be my favorite FUD moment since we began this journey together. Just so you don't have to take my word for it, here's the pertinent wording; The court agrees with IBM that this burden was not made entirely clear by the parties in their memoranda before the court. Therefore, the court finds that IBM's motion is appropriate to prevent clear error or manifest injustice. In other words, she is saying that her previous order, if not altered, would have resulted in clear error or manifest injustice. So she changed it. All the rest is just spin. But you don't have to take my word on it. Here's the text. Read it for yourself:
*****************************
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
_____________________
THE SCO GROUP INC.
Plaintiff/Counterclailm
Defendant,
vs.
INTERNATIONAL BUSINESS MACHINES
CORP.
Defendant/Counterclaim
Plaintiff.
_______________________
ORDER CONCERNING IBM'S
MOTION FOR RECONSIDERATION
JUDGE DALE A. KIMBALL
MAGISTRATE JUDGE BROOKE C. WELLS
_______________________
This matter is before the court on Defendant/Counterclaim-Plaintiff, International Business Machines Corporation's (IBM), Motion for Reconsideration of the court's January 18, 2005, Order regarding Plaintiff/Counterclaim-Defendant, The SCO Group's (SCO) Renewed Motion to Compel. See Motion, docket No. 403. IBM's Motion for Reconsideration seeks only one change to the court's prior Order: "a modification of the requirement that IBM collect and produce documents from the files of 3,000 individuals." IBM's Rep. Mem. p. 2.
The court has carefully considered the memoranda, other materials submitted by the parties, relevant law, and the facts
that frame this dispute. After doing so, the court finds that oral argument would not be helpful to this particular issue. See DUCivR 7-1(f). Now being fully advised the court renders the following Order.
A court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). There are three grounds that justify reconsideration: first, an intervening change in controlling law; second, the discovery or availability of new evidence; or finally, the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D. Kan. 1996). A motiong for reconsideration is not appropriate if the movant only seeks to revisit issues already addressed or attempts to raise arguments or facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Scherer v. Hill, Civ.A. No. 02-2043-KHV, 2003 WL 21011361 *1 (D. Kan. 2003) (stating that a motion for reconsideration "is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed.").
SCO argues that IBM "cannot establish any proper basis for reconsideration of the court's January 18 discovery order." SCO's Mem. in Opp. p. 2. IBM does fail to address any of the
2
three proper grounds for raising a motion for reconsideration in its initial moving papers. However, IBM does address the issue in its reply memorandum. IBM argues that its motion is brought on the grounds of "clear error and imposes manifest injustice." IBM's Repl Mem. p. 4. According to IBM they are not simply rehashing arguments. Instead IBM believes the parties did not fully brief, nor did the court fully understand, "the burden associated with searching for and producing documents from the files of 3,000 individuals." Id. The court agrees with IBM that this burden was not made entirely clear by the parties in their memoranda before the court. Therefore, the court finds that IBM's motion is appropriate to prevent clear error or manifest injustice.
In its Memorandum in Support, IBM specifically asks the court to:
defer the production of additional information relating to the development of AIX and Dynix until after SCO has had an opportunity to review the extensive data that IBM will be providing. After reviewing the data, SCO should be able to identify with specificity a reasonable number of developers, if any, from whose files it would like additional production and IBM can then provide the information SCO wants without having to search for, collect and produce redundant and cumulative discovery or discovery in which SCO has no interest.
IBM's Mem. in Supp. p. 5.
The court finds IBM's argument somewhat persuasive in
3
appropriately balancing the burdens, costs and benefits associated with the production of this information. See Fed. R. Civ. P. 26(b)(2)(i) (stating that a court may limit discovery where "the discovery sought is . . . obtainable from some other source that is more convenient, less burdensome, or less expensive."). However, the court does not at this time strike its prior requirement that IBM produce the documents from the files "for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix." January 18, 2005 Order p. 16. Instead, the court finds it appropriate to defer the majority of the required production in light of the possible duplication of information contained in the other materials forthcoming from IBM.
Notwithstanding the court's deferral, the court hereby ORDERS IBM to produce the programmer's notes, design documents, white papers, comments and notes, contact information, specific changes made to code, and all relevant non-privileged documents from the files of the 100 individuals who made the most contributions and changes to the development of AIX and Dynix. This amounts to approximately 3% of the original requirement and is to be done although there may be some duplication. The court finds this appropriate because such information will provide a basis for SCO to compare what is in the files of individual developers, versus what is contained in the other materials
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produced by IBM. Following this comparison, and in accordance with IBM's representation, SCO can then identity additional developers "from whose files it would like additional production and IBM can then provide the information . . . ." IBM's Mem. in Supp. p. 5. IBM is to provide the information from these 100 individuals within 90 days from the date of this order. IBM is also to provide SCO and the court a privilege log for any documents that are withheld from the files of these 100 individuals. Objections to withheld documents will be addressed by the court at a later date. Finally, the court wishes to note the arguments raised concerning possible modification of the court's January order. SCO specifically alleges that IBM seeks to modify its obligations and limit the discovery which it must produce. See SCO's Mem. in Opp. p. 4-10. The court does not address the majority of these issues because full production of required discovery by IBM pursuant to the court's order is not complete. Therefore, arguments concerning attempts to limit such obligations are premature.
However, prior orders make it clear that IBM is to provide ALL non-public Linux contribution information. The court's order entered in March 2004 states:
Pursuant to Rule 26(b), SCO should use its best efforts to obtain relevant discovery from the Linux
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contributions that are known to the public, including those contributions publicly known to be made by IBM. IBM, however, is hereby ordered to provide to SCO any and all non-public contributions it has made to Linux.
March 2004 Order p. 4 (emphasis added). To the extent that IBM has failed to do this, the court HEREBY ORDERS IBM to produce this information. This production is to be specific in nature including any code contributed by IBM to Linux that is otherwise not publicly known. Furthermore, this is to include the names and contact information of specific developers that made contributions, not just general names of teams or work groups. For example, if it is public knowledge that a group of IBM developers known by the name of Alpha made contributions, but the individual members of Alpha are not publicly known, then IBM must produce the names and contact information from this group to SCO. Such required information is inherent within the court's previous orders because it would be considered "non-public" Linux information that is available to IBM. IBM is to produce this information within 75 days from entry of this order.
DATED this 19 day of April, 2005.
BY THE COURT.
__[signature]___
BROOKE C. WELLS
United States Magistrate Judge
6
United States District Court
for the
District of Utah
April 20, 2005
* * CERTIFICATE OF SERVICE OF CLERK * *
Re: 2:03-cv-00294
True and correct copies of the attached were either mailed, faxed or e-mailed
by the clerk to the following:
Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
EMAIL
Frederick S. Frei, Esq.
ANDREWS KURTH
[address]
Evan R. Chesler, Esq.
CRAVATH SWAINE & MOORE
[address]
EMAIL
Mr. Alan L Sullivan, Esq.
SNELL & WILMER LLP
[address]
EMAIL
Todd M. Shaughnessy, Esq.
SNELL & WILMER LLP
[address]
EMAIL
Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]
7
EMAIL
Mr. Kevin P McBride, Esq.
[address]
EMAIL
Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]
Stuart H. Singer, Esq.
BOIES SCHILLER & FLEXNER
[address]
EMAIL
Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
EMAIL
Mr. Michael P O'Brien, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
[address]
8
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Authored by: Hiro Protagonist on Thursday, April 21 2005 @ 02:43 PM EDT |
Corrections (if any) go here please.
---
I Grok... Therefore... I am.[ Reply to This | # ]
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Authored by: sef on Thursday, April 21 2005 @ 02:46 PM EDT |
"Non-public" could be code submitted but rejected. Of course, a lot of
this
is done on mailing lists, so it would be "public."
But if there is even a
single patch that was submitted, by an IBM
employee, via private email,
that was then rejected... well. I'm sure there
have been some, and I'm sure
TSG is sure there have been some as well. But I
think Wells is misinformed
about the level of organization going on. [ Reply to This | # ]
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- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Winter on Thursday, April 21 2005 @ 02:54 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Anonymous on Thursday, April 21 2005 @ 02:54 PM EDT
- Non public -- IN EXISTANCE - Authored by: DannyB on Thursday, April 21 2005 @ 02:54 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Anonymous on Thursday, April 21 2005 @ 02:56 PM EDT
- Rejected contributions - Authored by: Chris Lingard on Thursday, April 21 2005 @ 02:57 PM EDT
- If the contribution came from IBM it would be public - Authored by: MplsBrian on Thursday, April 21 2005 @ 03:09 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Anonymous on Thursday, April 21 2005 @ 03:21 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: blacklight on Thursday, April 21 2005 @ 03:58 PM EDT
- How about non-submitted patches? - Authored by: penfold on Thursday, April 21 2005 @ 04:57 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Anonymous on Thursday, April 21 2005 @ 07:22 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Anonymous on Thursday, April 21 2005 @ 07:29 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Anonymous on Thursday, April 21 2005 @ 09:05 PM EDT
- Order on Motion for Reconsideration --IBM Doesn't Yet Have to Hand Over 3,000 -- Just 100 - Authored by: Anonymous on Saturday, April 23 2005 @ 11:22 AM EDT
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Authored by: abtm on Thursday, April 21 2005 @ 02:49 PM EDT |
What I want to know is if (when) SCO asks for the remaining 2,900 do they have
to show relevance and does IBM have any way to object/appeal at that time?[ Reply to This | # ]
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Authored by: sef on Thursday, April 21 2005 @ 02:51 PM EDT |
And having read it.. I still really want to know how the court can get away
being so one-sided in this case. Where is the outrage from the court at TSG's
lack of discovery, that IBM has been asking for more than a year now?
My
prediction is that, very shortly after three months from now, TSG will
say they
need the remainder of all the names, or they can't possibly do
anything. And
the judge will give it to them. [ Reply to This | # ]
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Authored by: Winter on Thursday, April 21 2005 @ 02:51 PM EDT |
MOG was out with "truthwise economically" reporting of the order
before PJ.
According to her it was a hugh win for SCO.
Surprise!
So the SCO camp not only reads Groklaw, they even try to outrun PJ on publishing
deadlines.
If they just stuck to outrun GL on journalistic quality. That would help us
all.
Rob
---
Philosophy of Science assignment: "Never believe a fact before it has been
confirmed by theory" (A.Eddington)[ Reply to This | # ]
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- MOG beat PJ - Authored by: Anonymous on Thursday, April 21 2005 @ 03:08 PM EDT
- I'm a Mog! - Authored by: Anonymous on Thursday, April 21 2005 @ 03:43 PM EDT
- SPELLING GESTAPO - Authored by: Anonymous on Thursday, April 21 2005 @ 03:44 PM EDT
- MOG beat PJ - Authored by: stend on Thursday, April 21 2005 @ 05:02 PM EDT
- MOG beat PJ - Authored by: rsteinmetz70112 on Thursday, April 21 2005 @ 05:41 PM EDT
- MOG beat PJ - Authored by: Anonymous on Thursday, April 21 2005 @ 05:42 PM EDT
- SCO's PR people were quick off the mark too - Authored by: crazymollusc on Thursday, April 21 2005 @ 05:46 PM EDT
- A word on MOG - Authored by: TeflonPenguin on Thursday, April 21 2005 @ 05:58 PM EDT
- MOG beat PJ - Authored by: Anonymous on Thursday, April 21 2005 @ 07:14 PM EDT
- MOG Article pulled - Authored by: Mark_Edwards on Thursday, April 21 2005 @ 07:38 PM EDT
- Here's my feedback to the article - Authored by: fudisbad on Friday, April 22 2005 @ 09:32 AM EDT
- MOG is a BSA - Authored by: Anonymous on Friday, April 22 2005 @ 02:20 PM EDT
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Authored by: cmcnabb on Thursday, April 21 2005 @ 02:52 PM EDT |
Judge Wells explains what she means by non-public information in the order
itself:
"For Example, if it is public knowledge that a group of IBM developers
known by the name of Alpha made contributions, but the individual members of
Alpha are not publically known, then IBM must produce the names and contact
information from this group to SCO"
So, she is not talking just about code but about any information as to how that
code was obtained, developed, or contributed.
---
--------
The content of this comment is released to the public domain.[ Reply to This | # ]
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Authored by: xtifr on Thursday, April 21 2005 @ 02:56 PM EDT |
To keep it neat. To make links, use:
<a href="http://www.example.com">clickable text</a>
and don't forget to preview and to use HTML-formatted post mode.
---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 02:58 PM EDT |
Seeing as how The SCO Group's SOP has been delay, delay, delay...I think this
may play into their hands. It just gives them more opportunity to drag this out
longer.[ Reply to This | # ]
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Authored by: JeR on Thursday, April 21 2005 @ 02:59 PM EDT |
"Obviously, she doesn't yet understand that there is
no such thing."
I think the judge understands
quite well. After all, this order should clear up once and for all that IBM is
to produce "all and any non-public contributions to
Linux".
If that (contradictory) description has IBM
producing absolutely nothing, not a single line of code, then the burden is on
SCO to prove IBM indeed did contribute code to Linux non-publicly.
Let's see SCO try to do that, shall we? --- non-breaking space [ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 03:17 PM EDT |
I'm not sure, but I think that Wells has previously ordered IBM to produce any
non-public contributions to Linux (perhaps in March 2004 order) while
acknowledging that IBM is not required to produce public contributions which SCO
can get for themselves.
But I do know - IBM has repeatedly said they
have already produced to SCO all non-public contributions to Linux to the extent
they exist (I think even for the briefing for this motion, not to mention
briefing on previous SCO's motion to compel).
Of course, IBM's
production of non-public contributions, must just be, something
like:
Here is our list of IBM non-public contributions to
Linux:
-- BEGIN LIST --
-- END LIST
--
Quatermass
IANAL IMHO etc
P.S.
Impeccable
timing by Judge Wells. SCO's proposed schedule (not to mention their arguments
in support of it) is based on IBM's reconsideration motion being denied, and
they're arguing it today.[ Reply to This | # ]
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Authored by: Kaemaril on Thursday, April 21 2005 @ 03:18 PM EDT |
... and then SCO can ask for more details if they want to
...
Hands up anyone who won't be greatly surprised if SCO decides that
they want to? ;) [ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 03:38 PM EDT |
SCO should keep the E - for ExSCOriated.
I know, there is no S, but it just seemed to be needed.
;)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 03:50 PM EDT |
"prior orders make it clear that IBM is to provide ALL
non-public Linux contribution information. The court order entered in March
2004 states:
...[snip]...
IBM, however, is
hereby ordered to provide to SCO any and all non-public contributions it has
made to Linux."
The 2004 order says
"non-public contributions" (of which, by the nature of OPEN source, there are
none).
This new order, though, says "non-public Linux contribution
information" - which is slightly different if you take that to really
mean "non-public information regarding Linux contributions". The first order
didn't say that. Should we interpret the second order this way? Since it
directly quotes the first order, I would say no, yet it next
says:
"this is to include names and contact information of specific
developers that made contributions, not just general names of teams or work
groups. For example..."
To me, the orignal order for "any
and all non-public contributions" has been (at least technically)
expanded.
Anyhow, at the end of the day, I suppose this is a reasonable
request (ie "discover the public stuff you can (contributions) yourself, we'll
provide the non-public details of those contributions.)
- frege[ Reply to This | # ]
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- Wording - Authored by: Anonymous on Thursday, April 21 2005 @ 03:53 PM EDT
- Wording - Authored by: sef on Thursday, April 21 2005 @ 03:58 PM EDT
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Authored by: jstormes on Thursday, April 21 2005 @ 03:50 PM EDT |
Ok, logic question for the people that are smarter than I.
1) Only public contributions are allowed into the Linux Kernel.
2) If it is not public it is not Linux, it could be in addition to, distrusted
with or on the same medium with, but it is not part of the Linux kernel.
3) How do you have non public contributions to a public only work?
Is the judge talking about the kernel or something else? Is there another
definition of public?
This is like asking for all the non-public best sellers, or a list of all
non-public laws the in the Constitution.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 03:50 PM EDT |
First, Judge Wells now understands that the contributions are public, and that
by "non-public contributions to Linux" she is clear that she meant (or
now purports to have meant) disclosing the individuals who contributed any (C)
IBM source.
However, by saying "[underscore]ALL[underscore] non public Linux
contribution information" she also (if you're a SCOlawyer) covers hardware
donations, sponsorship, and just about any conversation that an IBM employee has
ever had with a Linux developer. Those are all "contributions", and
SCO are going to cry foul every time they turn up any vaguely Linux-related
activity that IBM fails to disclose here, regardless of whether it's within the
spirit of this order or not. The LETTER of the order punishes IBM.
Also, the files of the 100 highest contributors is still a big blow.
Axiomatically they will be long termers, so we're talking a thousand man-years
worth of files to go through. That's a huge undertaking just by itself, and you
can bet your bottom dollar that SCO will immediately start asking for more based
on mumble mumble something in the code mutter.
Sorry, but to me it still looks like SCO asked for the moon, and got awarded the
moon AND a stick to put it on. IBM must be gnashing their teeth in frustration
over that "ALL [...] contributions" order, because SCO are going to
latch onto that like a starving pit bull.
A thousand man years worth of files, or pay SCO off even at this late stage.
Someone in IBM will be costing those options tonight. Let's hope they look to
the long term.[ Reply to This | # ]
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- Um, sorry, but I think you really did skim this - Authored by: Anonymous on Thursday, April 21 2005 @ 04:11 PM EDT
- Um, sorry, but I think you really did skim this - Authored by: Anonymous on Thursday, April 21 2005 @ 04:17 PM EDT
- Enough is enough - Authored by: wvhillbilly on Thursday, April 21 2005 @ 05:22 PM EDT
- ..hey Skimmo, tSCOG _is_ that latched starving pit bull on the Moon. ;o) N/T - Authored by: Anonymous on Friday, April 22 2005 @ 12:12 AM EDT
- Um, sorry, but I think LOL - Authored by: Anonymous on Friday, April 22 2005 @ 08:19 PM EDT
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Authored by: Observer on Thursday, April 21 2005 @ 03:56 PM EDT |
Not sure how this would be useful to SCO, but there is a way that some kernel
code would not necessarily be public. I know when I'm working on code, we have
lots of internal releases for things like prototypes and testing. It is
possible, or even highly likely that IBM does have internal, interim releases of
their kernel contributions what would have never seen the light of day. SCO has
already asked for records of these releases. In theory, something could have
been added in an internal release, rejected for some reason, and then pulled out
before the kernel was released. This code would have never made it to the
public kernel code because it wasn't released in binary form either.
There
could also be design documents, requirements specifications, internal reviews,
schedules and all the other artifacts that spring up like weeds around a
development project, none of which are actually "code", and would not
necessarily be released under the GPL.
Again, I have *NO* idea why SCO would
want this, but they have asked for stuff like this before.
--- The
Observer [ Reply to This | # ]
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- Non-public Info - Authored by: jstormes on Thursday, April 21 2005 @ 04:03 PM EDT
- Exactly, plus testing, expert advice and so on - Authored by: Anonymous on Thursday, April 21 2005 @ 04:07 PM EDT
- Non-public Info - Authored by: rsteinmetz70112 on Thursday, April 21 2005 @ 04:11 PM EDT
- Non-public cannot be in violation - Authored by: pogson on Thursday, April 21 2005 @ 04:27 PM EDT
- Non-public Info - Authored by: bobn on Thursday, April 21 2005 @ 04:37 PM EDT
- Not non-public *contributions* - Authored by: Anonymous on Thursday, April 21 2005 @ 05:19 PM EDT
- Non-public Info - Authored by: Anonymous on Thursday, April 21 2005 @ 05:29 PM EDT
- Non-public Info - Authored by: ptb on Friday, April 22 2005 @ 01:58 PM EDT
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Authored by: ak on Thursday, April 21 2005 @ 03:58 PM EDT |
One of the problems with those orders is that words such as
"non-public" and "contribution" are not precisely definded.
I think that it would be necessary first to decide if SCO's ladder-theory will
be applied or not before defining the meaning of "contribution".
I am not impressed by the quality of those orders.
[ Reply to This | # ]
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Authored by: blacklight on Thursday, April 21 2005 @ 04:08 PM EDT |
The concept of non-public contributions to Linux is an oxymoron: there is no way
that IBM (and us) would have confidence in Linux as a product if the
contributions process was less than transparent. I can already hear the screams
of some miffed vendor such as CA that "IBM (or some competitor of CA) took
over Linux", if this were the case. Software vendors port their products to
Linux rather than Windows because they rightly perceive Linux as an platform
that is equally open and fair to all - They wouldn't be doing it otherwise.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 04:09 PM EDT |
IBM has to provide this info within 90 days.
Assuming they take that long then that's another three months this case drags
on.
Then SCO get x days to mull over the info provided?
Do we yet have an identifiable date (quarter, year, century!?) when SCO will be
commanded by the Court to produce even just one single piece of solid evidence,
of infringing code or whatever?
As a Brit I've long had a somewhat jaundiced (but admittedly ill-informed) view
of the US legal system.
On the other hand, reading Groklaw has shown me that there are lawyers on this
planet that are worth the money they get. IBM would be dead by now if they
didn't have the Nazgul guarding their gates!
But I believe (rightly or wrongly) that it would be impossible to bring this
case, let alone drag it out this long, in the UK - without showing some
due-cause for litigation.
Doesn't the Court in this case have a legal, moral, (constitutional?) duty to
require SCO to present the evidence that they had *when they initiated the
case*.
Forget about their ongoing fishing expeditions - why are they not forced to show
the evidence they had, on day 1, that gave them reasonable cause to start this
in the first place?
I'm thinking along the lines of being detained by a police officer. He/she may
stop you for speeding, then find out that you're guilty of multiple felonies in
a dozen states.
They'd still have to, as a first step, take you down the station and present
evidence of why they stopped you in the first place. Wouldn't they?
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 04:13 PM EDT |
PJ, I've been reading GrokLaw for 2 years now, ever since the SCO story broke.
I love your site.
OK, not to sound like a deliberate troll, but exactly *how* is this a win for
IBM? At the end of 90 days can't the SCOsters not just ask for more time?
Seems like the Judge is giving them a priori permission for even more delays.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 04:18 PM EDT |
How it is even remotely possible that AIX code from 1990 could infring of scox's
copyrights? How does that make any sense, at all, what-so-ever?
In light of that, does Well decison make *any* sense?
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 04:26 PM EDT |
One of the topics in the Motion for reconsideration was how SCO was interpreting
the Order to also include AIX and Dynix middleware and possibly firmware for the
hardware they run on. The latest Order completely ignores that.[ Reply to This | # ]
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Authored by: Jude on Thursday, April 21 2005 @ 04:34 PM EDT |
...A motion for reconsideration is not appropriate if the movant only
seeks
to revisit issues already addressed or attempts to raise arguments of
facts
that could have been presented originally.
Ummm, wouldn't this
rule out most of what SCO has been doing for the last two years?
How did SCO
get more discovery after this very same judge told them to present what
they
had found so far before she would grant more? Wasn't her January order the
result
of SCO doing exactly what these words would preclude?
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Authored by: Anonymous on Thursday, April 21 2005 @ 04:52 PM EDT |
I can't avoid to imagine IBM sending SCO one package of fresh and unused laser
printer paper. Each and every blank page is full with all the nonpublic Linux
info (no such thing).
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Authored by: kberrien on Thursday, April 21 2005 @ 05:29 PM EDT |
Judge: "IBM, you must hand over non-public Linux activities."
Now granted, if its unpublic it didn't ACTUALLY make it into Linux, thus there
being no violations. QED
Meanwhile, after years, this same court is saying....
Judge: "SCO, you brought this lawsuit based on allegations. We've told you
twice to actually make your alligations. But you don't have do it just because
we told you too."
IANAL, and I'm glad I'm not one!
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Authored by: Anonymous on Thursday, April 21 2005 @ 05:37 PM EDT |
Is her real name Marx? Her father is probably Groucho.
She's excellent.
That reminds me of some IT users: they don't know what
they talk about but never want to recognize they were
wrong or are hopeless dummies.
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Authored by: Anonymous on Thursday, April 21 2005 @ 05:53 PM EDT |
I wish I really could consider this a big blow to SCO,
but I don't. I hope someone will explain it. Is there
something between the lines?
There still is no end in sight to discovery. No matter
what IBM produces, SCO will simply say IBM is still
withholding, and light up another cigar. And saying she
was misinformed this time doesn't give me a lot of
confidence about future rulings.
Does Kimball really want this case on his docket forever?
I'm really puzzled about the court's behavior. I don't
understand how a lawsuit can go on for two years without
a shred of evidence.
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Authored by: Anonymous on Thursday, April 21 2005 @ 06:04 PM EDT |
PJ and several posters here seem to think that by "non-public contributions to
Linux", the Judge means 'patches which IBM got into Linux without anyone
knowing'. Those do not exist, of course. But, this is not what the Wells
means!
The order specifies exactly what the judge means by non-public
contributions, and gives an example:
This production is to be specific in
nature including any code contributed by IBM to Linux that is otherwise not
publicly known. Furthermore, this is to include the names and contact
information of specific developers that made contributions, not just general
names or work groups. For example, if it is public knowledge that a group of IBM
developers known as Alpha made contributions, but the individual members of
Alpha are not publicly known, then IBM must produce the names and contact
information from this group to SCO.
So what Wells is saying, that if a
group or person commited code to Linux under a name which doesn't cover every
individual who actually wrote that code, that IBM should give up that informat.
This is perfectly possible. You can submit patches on behalf of someone
to Linux, and their name will then not be publicly available. I'm not saying
this is the case. But it very well could be. And that's what this part of
the order is about.
Give Wells more credit than that.
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Authored by: Anonymous on Thursday, April 21 2005 @ 06:30 PM EDT |
This is what I get out of the order ...
IBM are not released from their obligation to hand over 3000 AIX Dynix developer
files, but instead of doing it all at once, IBM have to hand over the files of
the busiest 100. From there SCO can request files for more developers and IBM
must comply with that request. IBM must provide SCO and the court a privelage
log for anything it doesn't turn over. Disputes about the privelage log will be
heard at a later date.
IBM must hand over any and all code contributed to linux that are not publicly
known, as well as details of individual IBM developers who contributed code to
linux (who are not publicly known to have contributed that code or the the
contribution was made under a different name).
IBM made a suggestion that SCO should wait for developer information until SCO
has had a chance to look at all the code, then from there SCO produce a list of
names people wanted more information about. This was deemed inappropriate by the
court as it didn't balance the burden (which burden?).
With SCO wanting the kitchen sink, this wasn't discussed because IBM hadn't yet
complied with previous discovery orders.
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Authored by: PolR on Thursday, April 21 2005 @ 06:33 PM EDT |
Is it possible that with the recent Bitkeeper debacle, some information that
used to be public isn't publicly available anymore because the Bitkeeper license
has been pulled out? Could SCO play games with that respect?
I don't want to suggest anything. I am just asking about something I don't
know.
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Authored by: Steve Martin on Thursday, April 21 2005 @ 06:35 PM EDT |
(with apologies to Carly Simon...)
"An-ti-ci-pa-tion...
An-ti-ci-pa-a-tion is making me wait..."
(Well, I guess it's too
soon yet to have heard anything from Utah, the hearing only began about an
hour-and-a-half ago, so no time yet for adjournment and reports. I guess I'll
just have to be patient... AAARRGGHH!!)
--- "When I say something, I
put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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- Still nothing? - Authored by: Anonymous on Thursday, April 21 2005 @ 07:15 PM EDT
- Still nothing? - Authored by: Anonymous on Thursday, April 21 2005 @ 07:25 PM EDT
- 99 bottles of beer on the wall, 99 bottles of beer. Take one down, pass it around, 98 bottles... - Authored by: Anonymous on Thursday, April 21 2005 @ 07:41 PM EDT
- 98 bottles of beer on the wall, 98 bottles of beer. Take one down, pass it around, 97 bottles... - Authored by: Anonymous on Thursday, April 21 2005 @ 07:49 PM EDT
- 99 bottles of beer on the wall, 99 bottles of beer. Take one down, pass it around, 98 bottles... - Authored by: heretic on Thursday, April 21 2005 @ 08:12 PM EDT
- 99 bottles of beer on the wall, 99 bottles of beer. Take one down, pass it around, 98 bottles... - Authored by: Anonymous on Thursday, April 21 2005 @ 08:15 PM EDT
- 99 bottles of beer on the wall, 99 bottles of beer. Take one down, pass it around, 98 bottles... - Authored by: Sparhawk on Thursday, April 21 2005 @ 09:21 PM EDT
- 99 bottles of beer on the wall, 99 bottles of beer. Take one down, pass it around, 98 bottles... - Authored by: John Hasler on Friday, April 22 2005 @ 01:48 PM EDT
- Initial report from Chris Brown - Authored by: Anonymous on Thursday, April 21 2005 @ 08:14 PM EDT
- No report yet?? Ouch! - Authored by: PJ on Thursday, April 21 2005 @ 08:30 PM EDT
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Authored by: Pop69 on Thursday, April 21 2005 @ 06:44 PM EDT |
Let me see if I understand what's happening.
On the one hand you have the trial judge Kimball saying that there's an
astonishing lack of evidence from Sco.
On the other hand there's the discovery magistrate Wells giving Sco free reign
to request anything and everything from IBM to try and actually come up with
some.
Could someone tell me if I'm understanding this correctly ?
Is it really possible to sue someone in the US without any evidence and then
demand that the person you're sueing pony up anything and everything so that you
can try to find some actual evidence, all at the expense of the person being
sued ?
Has Sco shown any signs of actually doing anything with the discovery that
they've had already or are they just going to keep whining that bad old big blue
are being awkward by refusing to to hand over the evidence of thier wrongdoing ?
Evidence which, as far as I can see, seems to only exist in the fevered
imagination of a few execs at Sco ( or in Blepps magical briefcase)[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 21 2005 @ 07:19 PM EDT |
I find this rather odd, as the only discovery at issue in the order, was that
covered by IBM's motion for reconsideration - namely whether IBM had to search
3000 developers files (IBM said no in their motion for reconsideration, SCO said
yes).
http://www.internetnews.com/bus-news/article.php/3499631
"We are pleased with the U.S. magistrate judge's decision, which reaffirms
the essential elements of her prior
order," SCO officials said in a statement. "The court's decision
should ensure that IBM now complies with its
discovery obligations and will provide SCO with information important to the
development of its case for trial.
We look forward to presenting our case to a jury next year."
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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Authored by: Latesigner on Thursday, April 21 2005 @ 07:33 PM EDT |
PJ puts it all where anyone can read it for themselves.
---
The only way to have an "ownership" society is to make slaves of the rest of us.[ Reply to This | # ]
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Authored by: Steve Martin on Thursday, April 21 2005 @ 07:39 PM EDT |
(gasp) Nothing serious, I hope. Take care of yourself, PJ!
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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Authored by: xtifr on Thursday, April 21 2005 @ 08:47 PM EDT |
I hear a lot of people shouting that this is terrible, it's a loss for IBM,
etc. I have one simple question: how could this possibly have been BETTER for
IBM?
The "non-public" info? SCO was claiming that IBM misinterpreted
Wells' earlier order. Now Wells has clarified that order (just in case), and if
IBM still says there's nothing, that line of argument is dead. How could
this possibly have been better for IBM?
The opportunity to look for
more after they check the 100? If Wells had denied them that, SCO would have
had the matter up for appeal so fast it would make your head spin. And,
frankly, I suspect they would win on appeal. So, we'd get way, way more delay,
plus something that SCO could really spin as a victory! What other
scenario can you imagine that would actually be better for IBM than what we
actually got?
(We'll ignore impossible scenarios, like Wells dismissing
the case out of hand, which isn't within her power to do. Though I admit, it
would be nice.) :)
--- Do not meddle in the affairs of Wizards, for it
makes them soggy and hard to light. [ Reply to This | # ]
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Authored by: PottedPlant on Thursday, April 21 2005 @ 09:00 PM EDT |
What is the sound of one non-public hand clapping?
What is the sound of a tree falling in a forest; if no one is there to hear it.
(non public)
………………………………………………………………………..
What is a non-public contribution?
At what point does something become a contribution to Linux?
………………………………………………………………………..
If someone who happens to work for IBM thinks about Linux; is that a non-public
contribution?
If someone who happens to work for IBM writes some Linux code then deletes it ;
is that a non-public contribution?
If someone who happens to work for IBM gives X dollars to attend a Linux
conference; is that a non-public contribution?
If someone who happens to work for IBM writes some code which he/she want to
contribute; but IBM does not contribute; is that a non-public contribution?
If someone who happens to work for IBM talks to Someone (about the weather) who
writes some code, which is contributed to Linux; is that a non-public
contribution?
If someone who happens to work for IBM reads Groklaw; is that a non-public
contribution?
Some deep thinking for you tech lawyers; but to be honest the largest
contribution to Linux/Open Source (outside of Linus) seems to be the controversy
generated by SCO.
They seem to think that they are pouring water on the fire but it turns out to
be gasoline.
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Authored by: Anonymous on Friday, April 22 2005 @ 01:20 AM EDT |
I wrote a couple of device drivers while working at a large computer company.
These were specificly for internal devices that never went "outside"
the corporation. The drivers were written to take full advantage of proprietary
hooks that were designed into the hardware, and releasing these drivers would
only have benefitted our competitors (since the public would have no use for the
code or the hardware).
The drivers were distributed globally to other internal test facilities in the
company, but never released to the public or third parties (including internal
sub-contractors).
It is highly possible that IBM has done similar activities (actually, I
personally know of a couple, since I worked on a project jointly with them,
alothough I never got to use the code or special builds they had - the code was
only used when IBM reps were on site doing system diagnostics to a particular
platform). Again, if it isn't distributed to 3rd parties, it doesn't violate
the GPL.
It's also highly possible that IBM experimented in various areas of code, and
these experiments never left the lab.
If you'd like to verify this, ask Linus himself. I did back in 1999 when he
gave a presentation at our site.
Due to NDA, I can't divulge any more info on this matter, but just wanted to
clarify a little known point about the GPL. If you download any GPL'd code, you
are free to modify it to your heart's content. But if you distribute the
dirived code to third parties, you must release the source as well.
Sco is basicly asking for everything IBM touched dealing with Linux. If IBM
downloaded Tux.jpg, and converted it to Tux.gif to use on Linux Rocks t-shirts,
SCO wants the trail in between.[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 22 2005 @ 02:58 AM EDT |
It's not 'non-public contributions' - it's 'non public
info *about* contributions', and we're speaking legalese
here. So I think internal memos etc. that speak about
what parts of IBM code should be contributed and what
parts shouldn't falls within this category - this is
information that goes quite a while back before the first
mail to lkml. So I think everybody here (including PJ)
should realize that the 'there is no such thing' bit is
just plain silly, even if the actual code that results
from these processes are, indeed, public. [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 22 2005 @ 08:48 AM EDT |
I am subscribed to the kernel mailing lists so I know about the public nature of
their contributions.
However could the order be interpreted as
"ALL
non-public information about Linux contributions?"
But.... this phrase
merely comes from the supportive wording in the order text
above:
However, prior orders make it clear that IBM is to
provide ALL non-public Linux contribution information. The court's order
entered in March 2004 states:
Pursuant to Rule 26(b), SCO should
use its best efforts to obtain relevant discovery from the Linux contributions
that are known to the public, including those contributions publicly known to be
made by IBM. IBM, however, is hereby ordered to provide to SCO any and all
non-public contributions it has made to
Linux.
However she then goes on to give an example
that supports the interpretation I made above:
For example,
if it is public knowledge that a group of IBM developers known by the name of
Alpha made contributions, but the individual members of Alpha are not publicly
known, then IBM must produce the names and contact information from this group
to SCO. Such required information is inherent within the court's previous orders
because it would be considered "non-public" Linux information that is available
to IBM.
I'm not sure - but I'm interested because I had
non-public 'off-list' discussions with an IBM engineer about a problem with
their kernel driver for an IBM network card. These then resulted in a public
patch which was put into the kernel.
Now, if this person is one of the 100
(maybe - he's well-known on the lkml) will my email conversations be part of the
non-public information about a Linux contribution? Or just his name? [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 22 2005 @ 03:02 PM EDT |
"IBM is to provide ALL non-public Linux contribution information."
If it was contributed to Linux, then it is public.
If it was not contributed to Linux, then it was not contributed.
It will be very interesting how the IBM lawyers make this plain to Judge Wells.[ Reply to This | # ]
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