decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

The Michael Davidson Email/Swartz Memo - SCO v. IBM [3 updates]
Thursday, July 14 2005 @ 04:12 PM EDT

If this doesn't make your blood boil, see your doctor right away.

We have obtained the August 13, 2002 Michael Davidson email to Reg Broughton, who forwarded it to Darl McBride with a cover note. It was previously sealed, and you can see why SCO would want it to be. It records Davidson's memories of Bob Swartz' earlier months-long code comparison between Linux and several versions of AT&T's Unix for oldSCO.

[Note that there are three updates to this story, and the third update includes the Swartz memo regarding the code comparison.]

Davidson reports:

The project was a result of SCO's executive management refusing to believe that it was possible for Linux and much of the GNU software to have come into existance without *someone* *somewhere* having copied pieces of proprietary UNIX source code to which SCO owned the copyright. The hope was that we would find a "smoking gun" somwhere in code that was being used by Red Hat and/or the other Linux companies that would give us some leverage. (There was, at one stage, the idea that we would sell licenses to corporate customers who were using Linux as a kind of "insurance policy" in case it turned out that they were using code which infringed our copyright).

So, Darl's SCOsource scheme wasn't even original, was it? SCO *hoped* to find copyright infringement so they could make some money selling "insurance" for Linux, the email says. Sound familiar? And after all that effort, what did they find?

At the end, we had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever.

This email is dated August 13, 2002, and Darl became CEO June 28, 2002. So now what do you think he was hired for? I note Davidson says he no longer has the report. My favorite sentence is Davidson saying that once you find evidence of copyright infringement, it's easy to prove. Indeed. And two years and counting, we're still waiting for any evidence. We first heard about this email at the September 2004 hearing, and now we get to read it for ourselves. Davidson was on the list of SCO people IBM deposed that we saw last June, 2004, and now we likely know why. More on Davidson here, where we learn SCO did eventually dig up the study the Davidson email is describing and turn it over in discovery.

This email may explain why SCO said originally, in the very beginning, that there were no issues with the Linux kernel until 2.4. But if they already knew there were no issues from its inception until quite late in its development, why did they tell the court they needed all versions of Linux since the world began? And why did their complaint repeat the by-then discredited theory that Linux *must* have been helped by someone to get where it was, when that was the theory behind the Swartz comparison of code, and he found "absolutely nothing"? Linux code was clean as a whistle.

And why did Darl tell the world, and Congress, that because Linux was written by volunteers, there was no way to know if it was clean code, that it was a "free-for-all", that "there's not a policeman to check in the code at the Linux kernel level to ensure that there are not violations", when they already knew that it presented very clear evidence of purity? Yet, by May of 2003, VarBusiness wrote, "No version of Linux passes legal muster yet, believes Darl McBride":

Q: Is there anyway to get a real Linux version from your perspective without violating SCO IP?

McBride: Based on the understandings we have right now, we don't see how.

Here's another example:

I believe the way the open-source community works right now has some fundamental flaws that have got to be addressed. We need to address how this open-source intellectual property is developed, routed, and sold. Thousands of software developers send code to contribute to open-source projects -- but there isn't a protective device for the customer using the software to ensure they're not in violation of the law by using stolen code.

Basically it's a "buyer beware" situation. The one holding the hot potato is the end-use customer. If the process can't provide more guarantees for customers, I don't think it will pass the long-term test at the customer level. You need some comfort level other than "We can warrant none of this, we don't know where it came from. And because you got it for free, you shouldn't complain about it.

Aside from all the factual errors, now we know he had good reason to know that Linux had been looked at very carefully earlier, and it was clean up until then, so they were clearly doing something right. Evidently, the development process worked very well. Even if it were true that later there were isolated issues with code, and so far there is no proof of anything like that, why was the rhetoric what it was? And do you remember how the media responded? Here's Stephen Shankland's article when SCO's attack began in May of 2003:

McBride's accusation cuts to the heart of the open-source movement's legal and philosophical underpinnings. . . .

"We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code," McBride said in an interview. In addition, he said, "We're finding code that looks likes it's been obfuscated to make it look like it wasn't UnixWare code--but it was."

McBride refused to detail which specific code had been copied but said there were several instances--"some of them go back several years, and others are recent"--and said the copying was "not minor." SCO, however, won't publish what it's found.

"We feel very good about the evidence that is going to show up in court. We will be happy to show the evidence we have at the appropriate time in a court setting," McBride said. "The Linux community would have me publish it now, (so they can have it) laundered by the time we can get to a court hearing. That's not the way we're going to go."

I added the emphasis, to highlight that if you went back "several years", you'd bump into the study saying there was no copyright infringement at that time. Perhaps SCO's answer would be it happened later. Or they found it later. But they'd best make it known, then.

Proprietary software has infringement issues all the time. Microsoft just settled a patent infringement case with Alacritech, for example. But it is Linux that was said to have problems with its development methods? Based on what? Why didn't SCO ever mention this study's results and tell the world about it, or at least qualify their statements more carefully? To sell "insurance"? To smear Linux?

If SCO had issues with IBM over contract matters, that is one thing, but why did it throw in the virulent anti-Linux copyright nonsense? Would you call it honest? I reviewed what Darl said in the early days in our Quote Database, by the way, in case you'd like to do the same. I hope Red Hat shows this to the judge in Delaware.

This is a paper exhibit, which Frank Sorenson obtained from the court, scanned for us, and did the HTML. There are misspellings in the original. Thank you, Frank.


CNET's Ina Fried got a reaction from SCO:

A SCO representative told CNET that the e-mail was authentic, but noted that the e-mail doesn't say when the SCO investigation took place or what tools were used.

"That e-mail probably creates a lot more questions than it answers," SCO spokesman Blake Stowell said. "We'll be fully prepared to address that, but we will be doing that in a court setting if it is necessary."

An IBM representative declined to comment. . . .

Stowell said that IBM has brought up the e-mail in court and noted that a judge has refused to dismiss SCO's suit.

"It doesn't really spell out anything," Stowell said of Davidson's e-mail.

As I am sure you know, SCO folk never talk to the media about this case, saving it instead for a court setting.



Now SCO has released a 1999 email from Swartz, in the updated version of Fried's story:

Late Thursday, SCO released an e-mail from Swartz that it points out shows the analysis dates back to 1999 and that SCO says shows that Swartz did find possible issues with Linux.

In the e-mail, dated Oct. 4, 1999, Swartz said that there was some code that was line-for-line identical to Unix and other code that appeared to be rewritten, perhaps to disguise that it was copied. However, Swartz also noted that it was not entire programs, but rather "fragments of code."

"The fact however that there are pieces of code which are identical to those in the Unix source and others which appear to be simply a rewriting of Unix code is clearly disturbing," Swartz wrote in his e-mail.

SCO said in a statement late Thursday that this memo "shows that there are problems with Linux."

"Thus, even aside from the fact that SCO's central contract claims in the IBM litigation involve later Linux versions and different conduct, it would simply be inaccurate--and misleading--to use Mr. Davidson’s e-mail to suggest that SCO's internal investigation revealed no problems," SCO said.

ZDNET calls it a memo, not an email, and Fried contributed to the report, so presumably it is a memo, not an email. That is also what IBM's attorney called in at a September 2004 hearing, as you will see, so I'll call it a memo. It's too late for "possible issues" with Linux, for starters. By now, those code fragments, or whatever they are, should have been on the court's desk. Whatever Swartz found was presumably presented to Kimball, and he found no credible evidence of infringement. Second, does this 1999 memo justify the smearing of Linux, on the basis of possible issues, issues that in 2002 Mr. Davidson said were absolutely nothing? Had SCOfolk said that there were possible issues, that would be one thing. That isn't at all what they said in public, and even with the 1999 memo, there appears to remain a huge gap between what they said and what they had, at least as far as I can see so far.

Mr. Davidson read the report, and whatever information Mr. Swartz characterized in his 1999 memo, the fragments, etc., Mr. Davidson considered it all, and he says the study found "absolutely nothing". He acknowledges some similarities, but with his expertise, he concludes that while there is "a lot of code that is common between UNIX and Linux", upon investigation "invariably it turned out that the common code was something that both we (SCO) and the Linux community had obtained (legitimately) from some third party."

If SCO has evidence to the contrary, where is it? The ZDNET story provides this statement from SCO:

"Even more importantly, this memo shows that there are problems with Linux. It also notes that additional investigation is required to locate all of the problems, which SCO has been continuing in discovery in the IBM and Autozone cases," said SCO.

Looking now to try to locate those problems doesn't explain the public statements about millions of lines of code, does it? What evidence of infringement did they have in hand in 2003 to back up their public statements, listed only in part in my original article, attacking Linux in the media? Remember this threat, that SCO would pursue all companies that use or contribute to Linux?

". . .McBride warned Unix licensees and Linux users that SCOsource would legally pursue all companies that contribute to or use Linux. By the end of January, McBride said, companies using Linux have three choices: 1) Cease and desist any use of Linux; 2) obtain a license from SCO to use Linux at $699 per CPU (the licensing fee to go up to $1,399 at some time in the future); or 3) continue to use Linux, and lose all rights to the company's Unix license and face SCO in court. McBride couldn't characterize how much income this move would bring in, but he said he hoped it will be substantial.

Surely they didn't demand money based just on the 1999 memo with its vague claims of possible issues and fragments of code, particularly when later Mr. Davidson reviewed the study and said it added up to nothing. They didn't turn over the study until after the lawsuit was well along, remember, the morning of the hearing in September of 2004, as I recall, and Davidson says in the 2002 email, he didn't have it. So even if the 1999 memo said more than it does, surely they didn't go after companies and demand money based on just that, did they? Perhaps SCO might consider releasing the study itself or any studies on which they did base their public statements.

But let's take a look at what IBM's attorney David Marriott said when SCO presented apparently the same 1999 material at that hearing:

"SCO seeks to explain away the e-mail to which I referred by reference to a 1999 memorandum. Now, Mr. Hatch says that he understands that we have this memorandum. We have it because it was given to us hours before today's hearing. We got it this morning. It should have been produced a long time ago, but IBM is supposedly a party in breach of its discovery obligations.

Your Honor, the memo was dated five years ago. It was written three years before the e-mail which I have showed to Your Honor. It is a draft. It says on its face that it is provided, quote, 'subject to the further analysis of Mr. Davidson'. That's on page 5 of the fax sent to us this morning by Mr. Hatch. On the last page of the document, page 6 of the fax, he says, 'I'm awaiting analysis from Mike Davidson on some of these issues since he has a better feel for the history of much of this company.'

"Well, Your Honor, Mr. Davidson weighed in, in the e-mail we provided to Your Honor. In that e-mail, he makes abundantly clear in the last two paragraphs what he said when he weighed in.

I think SCO is doing the same thing now -- trying to explain away the 2002 Davidson email by presenting the 1999 memo. But the 2002 email comes *after* the memo, not before, so the earlier memo, evaluated by Davidson, doesn't trump what Davidson told SCO in 2002.

I think it must be pointed out that oldSCO did the study with a purpose, according to Mr. Davidson, and that purpose is described in his email as being to try to shake down business users of Linux, if they found any copyright infringement. Is it likely that if they had found anything that mattered, that they just somehow would have failed to proceed to cash in on their plan?

There is one more issue, pointed about to me by Dr. Stupid. The 2002 email refers to a study carried out in 1999. As I pointed out in my original article, it doesn't exclude the possibility of infringements occurring after that date or getting copyright claims on the back of SCO's contract claims, so to speak, or proving contract breach. Those are separate issues.

But what about the ABI files -- errno.h, the ELF headers and so forth? As I understand it from Dr. Stupid, they are essentially unchanged in today's kernel from how they looked in 1999. A naive automated code comparison between Linux and SysV does turn up matches in these files, he says. It thus seems hard to believe that Swartz would not have come across these similarities. Yet Davidson concluded they were "absolutely nothing." Would not that statement directly contradict SCO's public claims regarding the ABI files?

To review what SCO said about ABI files, you can review these articles:

This doesn't even go into the simple truth, pointed out by Linus, that the header files don't contain any code anyway:

"As you can see, it's basically something like five files, it's just that several of them are replicated for every single architecture out there. And the thing is, those files don't even contain any code. They contain things like the error number lists--and, yes, we made the error numbers match with traditional Unix on purpose, since, for example, Linux/alpha wanted to be binary-compatible with OSF/1. Ask any programmer what this is, and he'll tell you it's just a C header file that gives symbolic names to static error numbers."
And then there is another issue, as pointed out by Eben Moglen, that SCO released the code under the GPL themselves and that it is available under the same license from Novell:

"Many of the large, sophisticated enterprises who are the targets of SCO’s efforts responded to their claims last summer by taking copies of the Linux program, under GPL, from SCO’s own FTP server, where the code remained publicly available. They therefore have an auditable license from SCO to use, copy, modify and redistribute the code about which SCO continues to threaten legal action. For such enterprises, which now can also get a copy of the same program, under the same license, from Novell, any action by SCO to bring a copyright infringement claim would be particularly foolish."


Here's the Swartz memo [PDF]. I think you will readily see why Swartz deferred to Davidson. First he says this, in describing his method:

Additionally we investigated the settlement of The Regents of the University of California and BSDI. It is my understanding that anything in BSD Lite tape which was distributed by the University of California, is free of any legal encumbrances from SCO. Further any code which is necessary to meet the POSIX standard is also free of encumbrances.

But then, if you look at his list of similarities, and it's a remarkably short list, his table includes the matches from elf.h and shm.h, which by his stated standard ought to have been excluded. It's clear that he hasn't tried very hard to find why bits of code are similar. (Perhaps he intended that to be left up to Mr. Davidson. Swartz says his findings are "subject to the further analysis of Mike Davidson" since "he has a better feel for the history of much of this code." That raises the question: if Davidson knows more about the history of the code than Swartz, even in Swartz's opinion, on what basis would SCO ignore Davidson's opinion in favor of Swartz's? ) There is another issue about elf, namely that Novell put it in the public domain by 1994, according to this Novell employee email. There are many more reasons why elf isn't an example of infringement in this article on Groklaw from a year ago.

He also contradicts himself by writing, "One of the questions .. is what is the history of the identical code" and then going on to say, "there can be no doubt that parts of the Linux distribution were derived from Unix." By his own admission, there *can* be doubt, because he does not know the reason for the similarities until he answers the question of what is the history of the code. Here's the full quotation:

One of the questions which remains to be answered is what is the history of the identical code. It is possible that some of the code came from Berkeley or other third party. It is also possible that the code is exempted by the BSDI/Berkeley settlement. Additionally there are a number of other legal issues. I am awaiting analysis from Mike Davidson on some of these issues, since he has a better feel for the history of much of this code.

And as Davidson already told us that upon investigation, in his opinion it all turned out to be absolutely nothing, I don't see how the memo helps SCO.

And then there is the later study in 2004 by the world-renowned Dr. Randall Davis, who concluded in his 2nd Declaration:

"Despite an extensive review, I could find no source code in any of the IBM Code that incorporates any portion of the source code contained in the Unix System V Code or is in any other manner similar to such source code."

With that, here is the 2002 Davidson email:


From: Reg Broughton
Sent: Tuesday, August 13, 2002 10:05 PM
To: Darl McBride
Subject: Fwd: Re: Patents and IP Investigation


we can probably track down Bob Swartz if you want to dig further. Based on our last conversation, this summary of the code investigation probably closes that discussion.

This of course does not invalidate any of your statements on Caldera owning the central IP, and being the core provider of key technology and IP over the years into the UNIX and Linux communities.


Date: Tue, 13 Aug 2002 13:26:51 -0700
From: Michael Davidson
Organization: Caldera International
X-Mailer: Mozilla 4.6 [en] (Win98; I)
X-Accept-Language: en
To: Reg Broughton
Subject: Re: Patents and IP Investigation

The actual investigation itself was done by an outside consultant (Bob Swartz) hired by SCO. I worked with him and reviewed his findings.

My recollection is that Bob produced an initial proposal for the project which outlined the methodology to be used, and he *may* have also provided a final report, but I don't have copies of either.

The project was a result of SCO's executive management refusing to believe that it was possible for Linux and much of the GNU software to have come into existance without *someone* *somewhere* having copied pieces of proprietary UNIX source code to which SCO owned the copyright. The hope was that we would find a "smoking gun" somwhere in code that was being used by Red Hat and/or the other Linux companies that would give us some leverage. (There was, at one stage, the idea that we would sell licenses to corporate customers who were using Linux as a kind of "insurance policy" in case it turned out that they were using code which infringed our copyright).

Note that the scope of the project was limited to looking for evidence of copyright infringement (we didn't consider patents because SCO didn't own the rights to any patents, and more general IP issues were just too vague - besides SCO was *sure* that it was going to find evidence of copyright violations which are comparatively straightforward to prove once you have found them)

An outside consultant was brought in because I had already voiced the opinion (based on very detailed knowledge of our own source code and a reasonably broad exposure to Linux and other open source projects) that it was a waste of time and that we were not going to find anything.

Bob worked on the project for (I think) 4 to 6 months during which time he looked at the Linux kernel, and a large number of libraries and utilities and compared them with several different vesrions of AT&T UNIX source code. (Most of this work was automated using tools which were designed to to fuzzy matching and ignore trivial differences in formatting and spelling)

At the end, we had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever.

There is, indeed, a lot of code that is common between UNIX and Linux (all of the X Windows system, for example) but invariably it turned out that the common code was something that both we (SCO) and the Linux community had obtained (legitimately) from some third party.



The Michael Davidson Email/Swartz Memo - SCO v. IBM [3 updates] | 636 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: MadScientist on Thursday, July 14 2005 @ 04:18 PM EDT

[ Reply to This | # ]

OT materials here please
Authored by: MadScientist on Thursday, July 14 2005 @ 04:19 PM EDT

[ Reply to This | # ]

Lawsuit over.
Authored by: rsmith on Thursday, July 14 2005 @ 04:30 PM EDT
That clinches it. The SCO-IBM lawsuit is essentially over.

It might take a long time to go through the legal song-and-dance, but with this
in evidence, SCOG doesn't stand a chance as far copyright infringement claims
are concerned.

Intellectual Property is an oxymoron.

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: MadScientist on Thursday, July 14 2005 @ 04:33 PM EDT
From the ZDnet link

'ZDNet: Microsoft just purchased a Unix license from you. What's significant
about that?

D McB: They agree with our approach to intellectual property. They've taken a
patent license on our technology to build better integration between Unix and
Windows. I believe that sends a statement to others with respect to what it
means to honor intellectual property.'

Did D Mcb misspeak here refering to patents? He knew from the e amil above that
there were no patents. SCO's original complaint mentioned patents but they knew
there were no patents.

I note elsewhere that D McB states that it was never SCO intention to litigate
against anyone. Thats is consistent (stop laughing you at the back - yes you!)
with their later policy: all hat and no cattle a they say in Texas.

This law suit was never supposed to happen.

There were no patent issues and SCO knew this within 6 weeks of D McB becoming

SCO knew there were no copyright issues.

There were no trade secrets.

There was no violation of trade secrets.

And the case is not in Texas so Brown's solution does not apply here.

In short SCO *knowingly* made public statements about IBM and Linux that they
knew were false.

Judge K's approach makes a whole *lot* more sense now. SCO will have every
chance in the book to prove their case. If they fail to do so SCO are going to
be buried *so* deep that the remains will never be found.

The next question along is: How much of this did MS and Sun know?

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Groklaw Lurker on Thursday, July 14 2005 @ 04:33 PM EDT
Well, no surprises here. SCO has been pursuing a 'Pie in the Sky' since this
whole fraud began. I'm sure they knew they had no real chance of winning
anything on copyright infringement, instead, they were banking on sizeable and
continuing funding from Microsoft, Sun and others to fatten their paychecks,
inflate their stock prices and generally cocoon them all in golden parachutes.

Fortunately, they will likely all be destitute, unemployed and unemployable when
this fiaSCO is ended... :)

(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Steve Martin on Thursday, July 14 2005 @ 04:33 PM EDT

At the end, we had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever.

There is, indeed, a lot of code that is common between UNIX and Linux (all of the X Windows system, for example) but invariably it turned out that the common code was something that both we (SCO) and the Linux community had obtained (legitimately) from some third party.

And yet, at SCOForum 2003, the following year, Darl McBride stood up in front of the attendees with his PowerPoint slides, one of which read "Direct System V Code Has Been Copied Into Linux Kernel Releases 2.4x and 2.5x".

Lanham Act, anyone?

"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Where is the media?
Authored by: Anonymous on Thursday, July 14 2005 @ 04:36 PM EDT
Will the media be covering this development? Unlikely. It isn't news unless it
attacks Linux.

[ Reply to This | # ]

Why was this document allowed to be sealed?
Authored by: sfohey on Thursday, July 14 2005 @ 04:39 PM EDT
Can anybody explain why this document would be allowed to be sealed?

It certainly doesn't seem to contain any corporate secrets


[ Reply to This | # ]

The beauty of this comparison is:
Authored by: Anonymous on Thursday, July 14 2005 @ 04:40 PM EDT
That you can't say the method was unable to find similar code. It found
legitamate Xwindows copying.

[ Reply to This | # ]

Who will pay for the waste of time and money?
Authored by: Anonymous on Thursday, July 14 2005 @ 04:40 PM EDT
Yes, it makes my blood boil. We all knew it, but not we have it on print. Darl
and friends has been lying on purpose from day one. Can he be held personally
resonsible? ... I mean... seriously. He has wasted thousands of peoples time and

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Chris Cogdon on Thursday, July 14 2005 @ 04:43 PM EDT
PJ: You mention 'oldSCO' in your article, but the letter seems to relate to work
that Caldera did, not oldSCO/Tanantella. So... did you REALLY mean oldSCO, or

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 04:43 PM EDT
This not only closes the case, but surely opens the floodgates for criminal

Darl & Co proceeded with their blackmail, after having been told by their
own people, and even adviced by a director that it was a dead horse.

Not only are we counting barratry, this probably touches on securities fraud,
and their "Linux" license is now plain fraud, instead of a result of
ignorance or misunderstanding.

So, the big question now is: Who will file criminal charges? Who was the
senior executives at SCO who initiated this report, and even after been told
that it was futile, kept at it as if the report didn't exist.

No wonder that the board members demanded to get some sort of indemnification,
because the events they were about to approve were nothing but an old fashioned
con job.

[ Reply to This | # ]

The hope was that we would find a "smoking gun"
Authored by: TAZ6416 on Thursday, July 14 2005 @ 04:46 PM EDT
Seems to me that ironically, this email is a smoking gun against SCO.

Going off topic a bit, I was driving in England a few days ago and was suprised to see a van with a big SCO sticker on it's back door, first thought was it was a SCO reseller out delivering OpenServer 6 but it turns out it was just short for "Scotland" :)


[ Reply to This | # ]

Does this hurt SCO?
Authored by: Christian on Thursday, July 14 2005 @ 04:49 PM EDT
I don't think that this does much damage to SCO.

If someone told me that an outside consultant had looked into an issue but we did not have a copy of report describing or justifying his methods, I would not pay much attention to his results. It is hard for IBM to argue that The SCO Group should have or must have trusted Swartz's result, and it is easy for SCO to argue that they did not have enough information to put their faith in Davidson's summary of Swartz's work.

I am guessing it would matter if SCO never provides any evidence at all that they thought their claims that Linux contained stolen "IP" had merit. They would not need much to counteract this note about Swartz, but they would need something.

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: fredex on Thursday, July 14 2005 @ 04:53 PM EDT
don't know if it matters, I'm just curious. I wonder if this "Bob
Swartz" is the Robert Swartz who was president of the now defunct Mark
Williams company, purveyors of (among other things) Coherent?

[ Reply to This | # ]

Criminal Fraud
Authored by: jbolden1517 on Thursday, July 14 2005 @ 04:54 PM EDT
In Aug 2003 a year after this was written SCO accepted money for "Linux
licenses" which were protections for customers against copyright violations
Linux. If they knew such violations didn't exist then it seems to me

1) There is a misrepresentation of fact
2) The misrepresentation is intentional
3) The purpose was to induce payment

Isn't that what's required for a DA to get involved?

[ Reply to This | # ]

How on Earth did this piece of dynamite become unsealed?
Authored by: Cassandra on Thursday, July 14 2005 @ 04:57 PM EDT
I would have thought that SCO would have fought tooth and nail to prevent this email getting picked up by Groklaw and RedHat.

Of course, what we really want is Bob Swartz's original report.

[ Reply to This | # ]

Hey, Darl!
Authored by: Jude on Thursday, July 14 2005 @ 05:06 PM EDT
Have you been watching the news? Throwing CEO's in the slammer for fraud seems
to be quite popular with judges these days.

[ Reply to This | # ]

  • Hey, Darl! - Authored by: Anonymous on Friday, July 15 2005 @ 12:08 AM EDT
(new)SCO is toast...
Authored by: frk3 on Thursday, July 14 2005 @ 05:08 PM EDT

black and crispy, both sides.

What a bunch of maroons. What a bunch of imbesells. :)

[ Reply to This | # ]

So if one is was to buy a SCO IP license now...
Authored by: SaveDrury on Thursday, July 14 2005 @ 05:09 PM EDT
and they told you it was to protect you from copyright violations, and you
purchased it, what crime would SCO be committing by selling me that license?

would a $700 "investment" in a SCO IP license be worth the thousands
you could sue them for false advertising?

[ Reply to This | # ]

wouldn't this be a jolly good time for EV1 to ask for a refund?
Authored by: Alan Bell on Thursday, July 14 2005 @ 05:15 PM EDT
we know they bought a license, I think they could now ask SCO to justify their

[ Reply to This | # ]

Expert witnesses a dime a dozen...
Authored by: Anonymous on Thursday, July 14 2005 @ 05:25 PM EDT
Please, I am not a troll, just asking questions that comes up in my mind.

This reminds me of expert witnesses that you have in so many trials. The
witness for the prosecution says one thing, the witness for the defense says the
exact opposite. You know *ONE* (or maybe both ;-) of them are lying. No one
ever goes after these guys, because in their *expert* opinion they are telling
the truth.

Now, what I have always wondered is how do the defense go about obtaining these
"experts". Say I am the DA and I go out and ask for someone to look
at the facts of a case and they come back saying "sorry, I don't think you
have a case because of ...". Does the DA drop the case, or try to find
another expert witness?

So carrying this example to SCO, why does it look bad for SCO? Yes it is
someone (an expert and an employee) saying copyright violation is non-existent,
but if there is someone who says there *IS* copyright violations then they will
use them (although we do not know who they are). In fact SCO could argue that
the report contained so much bunk that they just threw it away.

All in all, I think this is a nail in SCO's coffin, but I think it is just a
single nail -- it will take a whole bunch more in order for this case to be

[ Reply to This | # ]

Bob Swartz?
Authored by: atul on Thursday, July 14 2005 @ 05:32 PM EDT
The email mentions that the actual comparison was done by a Bob Swartz. Does anyone know if this is the same Bob Swartz who was behind the old Coherent operating system? Coherent was an 80s - early 90s clean-room (but closed-source) UNIX clone that died when Swartz's Mark Williams Co. went out of business in the mid-90's.

AT&T tried to go after Mark Williams Co. at one point, sending none other than Dennis Ritchie out to investigate.

[ Reply to This | # ]

Staff Distancing from Management?
Authored by: stevem on Thursday, July 14 2005 @ 05:33 PM EDT
That Email of Michael's sure reads that way to me!

I note that he even *clarifies* who "we" are! If I was working for an
organisation, than "we" doesn't need clarification - it's understood!

Additional comments in there like:
"...SCO's executive management refusing to believe..."
"...besides SCO was *sure* that it was going to find..."
"...I had alrady voiced the opinion...that it was a waste of time..."

The way the email is written, use of "*emphasis*" being quite common -
these are the usage patterns of someone who's been around email for a while, and
IMNSHO, not management.

I'd go one further and suggest that tSCOg fell afoul of the sadly common belief
by management that internal staff don't know what they're talking about, if said
staff ever disagree with their managers.

Which seems somewhat ironic given later events.

Did anyone else pick up on the email client and Operating System in use combo?

Ahhh, this just warms my heart to read.

- SteveM

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: BigTex on Thursday, July 14 2005 @ 05:37 PM EDT
a couple of items:

1. "Note that the scope of the project was limited to looking for evidence
of copyright infringement (we didn't consider patents because SCO didn't own the
rights to any patents, and more general IP issues were just too vague - besides
SCO was *sure* that it was going to find evidence of copyright violations which
are comparatively straightforward to prove once you have found them)"

No patents for SCO

2.) You can bet Bob is going to be supenaed (sp)

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: RichardR on Thursday, July 14 2005 @ 05:41 PM EDT
Wow, this looks like pretty hot stuff! But can't people be thrown in jail for
making false accusations, willingly and knowingly selling worthless licences,
abusing the legal system as a fairground shooting booth, and harassing and
threatening many, many companies, all based on wilful lies? Or am I missing
something here?

Methinks that this is slam-dunk evidence, and mr. McBride and his cronies should
be preparing for quite some more time in the legal system -- this time as
unwilling guests ...

Richard Rasker

"This is a non-profit organisation.
We didn't plan it that way, but it is."

[ Reply to This | # ]

I wish I had known this earlier today.....
Authored by: tiger99 on Thursday, July 14 2005 @ 05:45 PM EDT
See my long post under OT. I would love to have been able to confront the SCOundrel's marketing people with that.

But never mind, I would only have been thrown out and caused a scene, so perhaps it is just as well. And I am sure that PJ posted it as fast as was humanly possible, if not even faster, so it simply was not possible.

IANAL, but I think that SCO is now almost dead. As an engineer I think that their latest products, as witnessed by me earlier today, are obsolete (and that is based on configuration and setup tools that are sadly lacking and other necessary featuresm like drivers that don't drive, not simple pro-FOSS prejudice. I do use some proprietary software, where it is best), compared to FOSS equivalents, and now this smoking gun of an email.......

Well, most of us here probably thought all along that the whole thing was a scam or fraud of some sort. I don't think that many of us, especially the experts who fully understand the law and other relevant issues were wrong. But the trolls, astroturfers and paid shills are not necessarily correct......

I wonder how long this particular email will take to propagate through the court system, and whether it will speed things up somewhat?

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 05:54 PM EDT
A certain RMS is feeling quite smug I would say...

[ Reply to This | # ]

D Y N A M I T E !
Authored by: cybervegan on Thursday, July 14 2005 @ 05:55 PM EDT
Frank, thankyou so much. How on earth are they going to spin *this* one? I'm
sure they can explain... if they get a bit more fish^H^H^H^Hdiscovery.

We new it. Now There's evidence.

It's not the end of the road, but genuine progress.


Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Stumbles on Thursday, July 14 2005 @ 06:06 PM EDT
McBride flat out lied.

You can tune a piano but you can't tune a fish.

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: inode_buddha on Thursday, July 14 2005 @ 06:09 PM EDT
Boiling blood? Nah -- I've had enough of that in the last few years. Probably I
should get some heart medication.

I tip my very red hat at PJ and Frank for obtaining and posting this. Thank you!

Copyright info in bio

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

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 06:20 PM EDT
The question is:

Does the sale have to be comsummated in order to be fraud?
Does a sexual act have to happen in order to be deemed prostitution?

When I watch Cops or any of those shows, they arrest women and joes for
prostitution, purely on the intent. I think keywords like "how much?"
is what it takes to get nailed.

SCO clearly advertized.

When they discovered that they were being picked up by a Vice squad cop, they
tried to get away, but the fact is that they did advertize and attempt to sell.

So if we apply the same standard,we have fraud, not just intent to fraud.

[ Reply to This | # ]

  • EV1 - Authored by: GLJason on Thursday, July 14 2005 @ 07:39 PM EDT
    • EV1 - Authored by: Anonymous on Thursday, July 14 2005 @ 07:44 PM EDT
      • EV1 - Authored by: Anonymous on Friday, July 15 2005 @ 01:58 AM EDT
        • EV1 - Authored by: Trepalium on Friday, July 15 2005 @ 02:35 AM EDT
      • EV1 - Authored by: Anonymous on Friday, July 15 2005 @ 04:38 AM EDT
      • EV1 - Authored by: Anonymous on Friday, July 15 2005 @ 06:41 AM EDT
      • EV1 - Authored by: John Hasler on Friday, July 15 2005 @ 09:40 AM EDT
The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 06:31 PM EDT

Hmm... It all really doesn't matter. Does SCO own the copyright? Does Sun?
Does Novell?

The have all shipped Linux under the GPL. They have all at least at some point
been happy with the concept of Linux.

...and legally they have licensed their "IP" to everyone. And that is
if they had any.

[ Reply to This | # ]

Authored by: brian on Thursday, July 14 2005 @ 06:40 PM EDT
"Subject: Fwd: Re: Patents and IP Investigation"

Why would newSCO want to know about patents since they didn't own any? Or is
that "patents" refering to an earlier AT&T investigation? I don't
get why patents would be included in an investigation when they don't (and never
did) own any in Unix.


#ifndef IANAL
#define IANAL

[ Reply to This | # ]

  • Patents?!? - Authored by: jbb on Thursday, July 14 2005 @ 08:11 PM EDT
Right Uppercut ...
Authored by: iceworm on Thursday, July 14 2005 @ 06:46 PM EDT

to the chin after a left jab to the temple for a clean knock out.


Left Jab: "[I]t was a waste of time and that we were not going to find anything." Michael Davidson's advice to Caldera International, c. 2002.

Right Uppercut: "At the end, we had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever.&quot: Michael Davidson's conclusion regarding Bob Schwartz's investigation to Reg Broughton of Caldera International c. 2002.

...awaiting the thud with 'bated breath. iceworm

[ Reply to This | # ]

"At long last, Senator...have you no shame?!?"
Authored by: Anonymous on Thursday, July 14 2005 @ 07:17 PM EDT
Hey, everybody!

Oh, bankruptcy and being owned by someone else is too good for them.

This is more than just a scam or a con job. This is beyond extortion. And to
think, if they hadn't decided to pick on IBM first, they might have built up
some momentum and crippled FOSS early on.

I've seen a lot of lies and rotten behavior done for personal gain, to protect a
political position, etc. This is the All Time Grand Champion Hall Of Famer.

I am no longer amused by SCO, McBride, and those who helped finance this. This
isn't spinning facts and trying to game the system. They lied. They lied and
hid it and hoped they would never get caught.

To paraphrase Bill Maher, I thought SCO was scraping the bottom of the barrel.
Now this memo shows that if you lift up the barrel....

Dobre utka,
The Blue Sky Ranger

"I saw the best minds of my generation destroyed by madness, starving
hysterical naked, dragging themselves through the negro streets at dawn looking
for an angry fix...."
Allen Ginsburg

[ Reply to This | # ]

  • Bill Maher? No! - Authored by: Anonymous on Thursday, July 14 2005 @ 08:12 PM EDT
    • Yabut.... - Authored by: Anonymous on Thursday, July 14 2005 @ 09:55 PM EDT
The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 07:18 PM EDT
Question: SCO thinks some of its source code wound up in Linux. Has anyone
thought that Linux code might have wound up in SCO instead? Disclaimer....I'm
not a kernel developer....

[ Reply to This | # ]

Clarification Question
Authored by: Anonymous on Thursday, July 14 2005 @ 07:35 PM EDT
I know this has most likely been dealt with many times before now, but I'm still
a little hazy on one thing: if someone buys a piece of software, and then
installs it and uses it, how can they be charged with copyright infringement?
How can end-users be held responsible for the creator's faults?

[ Reply to This | # ]

Authored by: Anonymous on Thursday, July 14 2005 @ 07:40 PM EDT
Gee, could this mean that Darl has been telling us fibs all along? I just can't believe that ;-)

[ Reply to This | # ]

SCO v. IBM or SCO vs. Novell
Authored by: Anonymous on Thursday, July 14 2005 @ 07:43 PM EDT
I can see how this could plausibly be spun that they found the code AFTER the
consultant did his research and that is why they went after the IBM
contributions. But that's going to be a stretch.

However, the memo clearly states they don't have the patents or other IP held by
Novell. That is perfectly clear from this memo and Novell could crucify them.
Lanham Act, anybody? It looks like the Novell case has a better shot at
becoming a criminal investigation.

[ Reply to This | # ]

Expert witnesses a dime a dozen...
Authored by: Anonymous on Thursday, July 14 2005 @ 07:52 PM EDT
Please don't make a blanket statement that expert witnesses are all bought
and paid for. I'm currently an expert witness in another case (not in the
computer industry). All I can try to do is render my best decisions based upon
the information I have -- whether or not it's useful to the plaintiff or
defendant. This is not easy. Evidence and prior witnesses' statements may not
be clear-cut. You must also be very careful about how you state your
conclusions so they can't be misinterpreted, keeping in mind that the lawyers,
judge, and jury don't have your expertise.

Also keep in mind that in many areas, it's not easy to find the optimal expert.

While I'm AN expert because I work in the field and teach it, I'm not THE
expert in the field. There's always somebody who knows more than you, and
there's always differences of opinion, even in science.

[ Reply to This | # ]

Authored by: Anonymous on Thursday, July 14 2005 @ 08:02 PM EDT
Validate and revalidate the sources.

Next step.. Make sure that Darl Mc.B never gets a high corporate function again,
Even better make him an example to stop the current trend to sue sue sue
everything that moves.

SCO ( the company ) however, Let them run there own course, It's still peoples
jobs we are talking about.
So go after the mis management of SCO for this brutal abuse of a legal system
and put them on the freaking plank.

PS.. gosh !!!!! hehehehehe.

[ Reply to This | # ]

I've long ago lost all faith
Authored by: Anonymous on Thursday, July 14 2005 @ 08:06 PM EDT
in the American legal system.

Let me explain my dear American fellows.

I'm a German, I have American friends and partners. I highly esteem the American
people I personally know for many things and I have the one or other minor
problem with them. I admire Amarica and Americans for many things they do and
for their confidence and efficiency, their TV shows, Neil&Lance Armstrong,
and and and... Really.

But this SCO farce has caused one decision: I will never ever open a subsidiary
in the USA. Any contract I enter into with American partners will be with their
European subsidiaries under German legislation.

Off topic: I will continue to fight any lobbying going on in Europe towards the
American concept of "IP". I have personally experienced only bad
results with prospective business partners who even mentioned "IP".
We'll cut any talks short if that comes up. Sort of Godwin's law: You mention
"IP", I leave the room.

Back on topic: This e-mail is known to the court for some time now. Still the
court proceeded like it didn't exist. Evidence obviously has no consequences. It
is completely irrelevant to the ongoing process. Will it ever be considered?

I never understood why this dicovery process is going on and on. The judges just
granted everything when enough whining was supplied. The judges never really
decided things even if they should and could have. For example, when SCO didn't
find any copied lines they construed their weird indirect derivative works
theory and all that rubbish about a "road map" (i.e. all revision
control info) and their theory about concepts. The judge could and should have
decided, that these theories are rubbish and therefore no further
"discovery" is neccessary that only could become relevant if sait
theories were not complete bullshit.

Nope, the judges ordered all that painful and expensive "discovery".
That is completely outrageous.

Simply by bullshitting a court you can cause immense damagages and pain to your
competitors in the US legal system.

Friends, plllleeeeaaasse, get the horse before the cart again.

With sympathy and sadness and a bottle of wine in the head.

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 08:08 PM EDT
Would the companies that SCO took 'linux' licenses, under threat of lawsuit have
a case of extortion against SCO?

Steven Howe

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 08:14 PM EDT
I've suggested before, and I'll say it again, SCOX can be shown to fail due
diligence in refusing to identify the mysterious stolen code so it can be worked
around. If SVR4 code exists in Linux (as opposed to code in SVR4 that may or may
not be copyrightable, say from one of the publicly reproducible unix versions),
exists in Linux, they have a duty to themselves to identify it or at least its
location, otherwise they are actually abetting the infringement. "They have
something that belongs to me, but I'm not going to tell you what it is, so they
can't return it to me before I call the see them in court. In this manner, I can
assure (?) that they are guilty." doubleyou tea eff?

[ Reply to This | # ]

SCO got it wrong from the very start
Authored by: Anonymous on Thursday, July 14 2005 @ 08:36 PM EDT
Did you ever wonder why it was IBM that was sued? Let me tell you a little story, boys and girls.

Set the wayback machine for Y2K. Motorola's computer group is, as they have for the past 20 or so years, making a lot of VME boards with various Motorola (and other) microprocessors on them, mostly sold to OEM customers. Some of these boards are new generations of 68K-class processors that have been around for years, some are various PowerPC cpus. Motorola has also built their own server machines based on these boards for years, running several variants of UNIX System V.

The PowerPC systems don't run this rather aging "Motorola UNIX", they run AIX. Moto is an AIX source licensee, and provides customized AIX installations to suit their computer products, and for their board-level products as well. If you're builing some big honking communications device and want a nice, fast PowerPC system to control it, you order the boards and AIX from Moto, then customize your application on top of that.

Except some (maybe even many) of the customers don't want AIX, they want Linux. So Moto finds a few Linux-savvy people in their AIX support group, gets them to grab a Linux PowerPC distribution, and start hacking. This works fairly well on some of the simpler boards, they trial this custom in-house Linux 'distro' with a few select customers, and now suddenly they have two nice-to-have problems: customers hear about this and want more, and the customers also want this Linux on the higher-end, i.e. multi-cpu, processor boards.

To solve the first problem, the Moto sales weenies cast about for a company to just package the Linux distro for them. They talk to the staff, bury their heads in the sand, play a few rounds of golf on the company's nickel, and whatever other time- and money-wasting 'research' tech industry marketing idiots do, and decide to hire...

Wait for it...

You got it. Of couse, they hired Caldera.

Meantime, back at the Ranch in Phoenix, customers want this cool new Linux stuff on the multi-cpu boards, too. Linux has support for SMP, Symmetric Multi-Processing, and it even sort of works on two-processor Macintoshes in the PowerPC realm. Sort of. It certainly doesn't support the Moto boards. So Moto crams some of the high-end boards into their nascent Linux development group, tells them to get it working, we need it yesterday, typical tech industry 'never start any project until we're already late' management, right?

What's a programmer to do? We have Linux with generic SMP support here, we have AIX running on our boards, using our code that we wrote there, let's get out the shovel, right?

And who created the CDs with this code on it? Worked on packaging the distro with the Moto engineers? Ah, right: Caldera, which became the SCO group.

Remember early on in the court case, when IBM, AIX, and high-end multiprocessor system support kept coming up in the SCO complaints, or at least in the rumors of the SCO complaints?

I've often wondered if this embedded knowlege of 'code copying' from AIX into Linux, that was commonly known to the Caldera tech staff, is what led the later SCO incarnation down the rosy path to this lawsuit. If so, bad news for SCO, there was code copied from AIX to Linux, but it wasn't copied by IBM and it didn't come from "UNIX" sources.

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: elronxenu on Thursday, July 14 2005 @ 08:53 PM EDT
What we see here is a "triumph" of stubbornness over good sense. SCO, and Darl McBride in particular, have been told time and time again that there's no SCO IP in linux. Now we see that they were told so by their own people from the very start. Those 4 words "probably closes that discussion" should have closed that discussion nearly 3 years ago.

Instead, stubbornness, plain insanity and greed have caused the ruin of SCO. No goodwill, cash running out - only the lawyers have become rich.

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: gribnick on Thursday, July 14 2005 @ 08:57 PM EDT
Hmmm. While not an accountant, I am in a small business unit in my company and
have the understanding that license fees, not support, gets amortized over some
multi-year period (10 yrs??). So when a deal is signed and there is a license
fee (upgrade fee or whatever), you can't declare that as income in a single year
.. it goes into a holding account and parts of it are recognized each year over
the life of the product. Support on the other hand is generally a yearly thing
and is recognized immediately. So it may be that you had it backwards?? Note
that this is another reason that open source is making more sense to companies
(as in open sourcing their own stuff).. They aren't getting the huge license
bangs for the buck anymore .. Support is where the action is...

[ Reply to This | # ]

Lanham Act, here we come
Authored by: Anonymous on Thursday, July 14 2005 @ 09:00 PM EDT
Man, oh man. SCO is really up the creek without a paddle, now. When IBM gets
their Lanham Act counterclaims in front of a jury, they will be able to use this
e-mail to prove that SCO *knew* the public statements they were making about
Linux containing infringing code, and IBM being involved, were pure BS.

I think the hardest part will be for IBM to show damages!

[ Reply to This | # ]

could we get a quote?
Authored by: phrostie on Thursday, July 14 2005 @ 09:58 PM EDT
could we get a quote from those that bought a licence?

it would be interesting to hear if they feel they got their moneys worth.

you can fool some of the people all of the time.
you can fool all of the people some of the time.
it's setting them straight that is %&#$@

[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: Anonymous on Thursday, July 14 2005 @ 10:02 PM EDT
Big Surprise "NOT !


[ Reply to This | # ]

The Michael Davidson Email - SCO v. IBM
Authored by: mikeraz on Thursday, July 14 2005 @ 10:05 PM EDT
This memo could (will? should?) provide a basis for a shareholder lawsuit. Darl
pissed away an incredible amount of the companies resources on a lawsuit the
company's own analysis had shown to be without merit.

[ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: allin on Thursday, July 14 2005 @ 10:38 PM EDT

    Yes, my blood boils.

    I was thinking along the lines of, "the charitable interpretation is...; the less charitable interpretation is...", but, hey, any interpretation that makes sense is not going to be charitable.

    Anyway, attempting to fulfil my original plan regardless:

    The charitable interpretation is that D. McB. was so brain-damaged by immersion in the corporate wage-slave mentality that he simply could not conceive of the possibility of freely co-operating humans developing an excellent operating system without stealing, cheating, and cutting corners by misappropriating the private property of legitimate capitalists. If there was evidence to the contrary (even evidence paid for by the corporate entity by which he was engaged), then a priori it must be false.

    The less charitable interpretation is that D. McB. didn't care a fig for ideology of any kind, and simply calculated that he and those corporate entities with which his interests were aligned (principally Microsoft) had vastly more money than any defenders of free software, and therefore could be counted upon to prevail, regardless of the technical details (truth/falsity) of the case, which are only of interest to penniless nerds and geeks, of no account.

    [ Reply to This | # ]

    A Simmer not a Boil
    Authored by: webster on Thursday, July 14 2005 @ 11:30 PM EDT
    This article issued in the doldrums of summer litigation proves again why this
    site is so relentlessly fascinating as it teaches us the routines of corporate
    mugging. There is no time for thought and organization. A summer vacation sans
    computer is impending. The family will never be forgiven. So it will be
    random lists:

    1. The document is devastating by itself, but it is not by itself. There are
    other emails, other analysts, and other studies, remember Deepsand Gupta. The
    SCO folks are going to have to explain it away in obvious pain and embarassment
    if they even admit to knowing about it. They will spend more time in any trial
    on the reasons that bolster their infringement claim. It is a gun that smokes
    but not all the time. It is not a homerun, knockout document like it would be
    if Darl had written it himself.

    2. The comments above noted how this email was termed like an inside job by a
    faction at SCO against this litigation effort. Indeed it is. This and others
    have been leaked out. Remember there was even a post here years ago from an
    insider noting the SCO contributions to Linux - The name Hellwig springs to

    3. Different states have different rules in talking to corporate employees.
    Sometimes you can't.

    4. Ironically sealing it eventually garnered it more attention than it would
    have received if buried in a box of discovery.

    5. Obviously this report and author would go in the pile with Kernighan's
    report. Corroboration is welcome from any source.

    6. "Mr. McBride, what authority and study caused you to disregard this
    report and email?" [Ans. "Yarro said he had a better report by better
    experts that showed infringement."

    7. This sort of thing is why this will never go to trial and why Darl will
    never submit to a deposition. He would soon get lost in the mountains. Better
    take a default and a sanction. Or as others suggest above--the Fifth. So who
    will go first--Sam's three hours or Darl's three months? How many days/hours
    will they spend on this email? All Darl has to do is read Groklaw to prepare
    for this exhibit.

    8. Many above talk of the end of the lawsuit because of this. Sorry, no. It
    is just one difficult piece for SCO which they will have to explain away. This
    they will do with the straight face of a flatulent commuter.


    [ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: Anonymous on Friday, July 15 2005 @ 12:16 AM EDT
    This is good news - And like earlier posters I can see where Judge K is going
    too - and I too would like to know how much Microsoft and Sun knew. I am really
    sick of this big boys club going on and it is time to call what it is - we as
    customers deserve better and a hell of lot more honesty.

    [ Reply to This | # ]

    August 13th - August 16th - What happened 3 days after this email?
    Authored by: Anonymous on Friday, July 15 2005 @ 01:00 AM EDT
    August 13th 2002, is the date of this email.

    August 16th 2002, 3 days later, SCO entered into an agreement with Morgan
    Keegan. While I didn't (in a brief glance) see any mention of license fees, it
    does mention the possibility of somebody acquiring SCO.

    Next we scroll into 2003.

    In February 2003, SCO revise their agreement with Morgan Keegan, and it mentions
    Sun and Microsoft license fees [oddly a brief glance at the revision seems to
    imply their other are license fees that might covered by other agreements or the
    prior agreement].

    Next we scroll into 2004.

    Remember the article about SCO potentially suing Hollywood?

    If I recall correctly, who was calling up Hollywood studios and effects houses
    on behalf of SCO? Morgan Keegan...

    So at some point a long the line, Morgan Keegan became mixed up in the license
    fees business.


    I don't know.

    It sure would be interesting (but I don't know it to be true or false) if the
    Morgan Keegan's involvement in licensing began 3 days after this email.... don't
    you think???

    IANAL IMHO etc

    [ Reply to This | # ]

    Reg Broughton made contradictory public comments 9 months later
    Authored by: Anonymous on Friday, July 15 2005 @ 01:06 AM EDT
    In the August 2002 email, Reg says about Davidson's conclusion that there's no copied code: "Based on our last conversation, this summary of the code investigation probably closes that discussion."

    To public reporters in May 2003, Reg said SCO has three teams sifting code and they "are finding more and more evidence to bolster our case." He also said the company had evidence that "our intellectual property from Unix has been included in Linux."

    Source: May 2003 Article with Broughton's quotes

    [ Reply to This | # ]

    SCO Group: The Movie
    Authored by: drichards1953 on Friday, July 15 2005 @ 01:32 AM EDT
    I know someone has already made "The Gang that Couldn't Shoot
    Straight" but this will be the remake. No one would believe that it is a
    non-fiction movie, ten years from now, except maybe Darl and Ralphie, if the SEC
    gets motivated.

    I do not know who we could get to play Darl and Ralphie. For MoG there is also
    a problem since Margaret Hamilton is dead.

    For the role of PJ there is only one person that can play that role...PJ
    herself! Who else could be so charming and lovely? I see PJ now, typing away
    at her computer, with a red dress on a hanger outside the closet door.

    I know Darl would have to be played by Robin Williams. (Stop and think about
    it!) Brad Pitt would have to do a cameo to play my minor roll as a regular
    poster on Groklaw. <ROFL>

    Maybe it should be a movie musical in the style of recent Moulin Rouge. Let's
    see the song from The Wiz, "Don't Bring Me No Bad News" for Darl in
    his office. PJ working to The Supremes doing "Up the Ladder to the
    Roof" or maybe Elton John's "Rocket Man." Maybe the
    techno-dance song "Brand New Lover" for when the SEC takes Darl and
    Ralphie to jail. The possibilities are endless. I know the ending scene is a
    dark and rainy prison yard scene, with the executives and board of the former
    SCO Group being lead in, with the song being played in the background "It's
    Raining Men."

    The boys at SCO Group are going to get everything they deserve and more.


    They that can give up essential liberty to obtain a little temporary safety
    deserve neither liberty nor safety.
    ---Benjamin Franklin

    [ Reply to This | # ]

    Nothing new
    Authored by: Anonymous on Friday, July 15 2005 @ 01:41 AM EDT
    Is this email really surprising?
    The SCO Management came up with the idea for a lawsuit. They contacted lawyers
    and code experts at the same time. The experts noticed no copying, and SCO
    reported that: No issues with older kernels.
    Then the lawyers (who feared that they might loose the client) came up with a
    legal theory that didn't need copying.
    And thus SCO changed their position, and reported in May 2003 that every Linux
    version infringes their rights.

    [ Reply to This | # ]

    All that quality
    Authored by: xtifr on Friday, July 15 2005 @ 01:49 AM EDT

    Those who are still puzzled by GNU/Linux's "amazing" growth in quality over a fairly short period of time may be interested in some studies on software robustness done by the University of Wisconsin. They basically fed huge amounts of purely random input to various programs and subsystems, and then looked to see how many had crashed or hung. The original test, in 1990, was run on various commercial Unix systems, and showed a pretty appalling failure rate. The second test, run in 1995, included Linux and GNU, and showed that while the commerial, proprietary systems had improved somewhat in the intervening five years, not one commercial Unix was as reliable or robust as Linux or GNU!

    From the 1995 report:

    "[T]here is a noticable improvement in reliabiliity from the 1990 study; the failure rate for SunOS went from 29% to 23%, HP-UX went from 33% to 18% and AIX went from 24% to 20%. [...]

    "It is also interesting to compare results of testing the commercial system to the results from testing 'freeware' GNU and Linux. The seven commercial systems in the 1995 study have an average failure rate of 23%, while Linux has a failure rate of 9% and the GNU utilities have a failure rate of only 6%."

    So it seems, the question is not, "how did Linux get to be as good as the proprietary Unixes", but "will the proprietary Unixes ever be as good as Linux already was a decade ago?" Far from needing to catch up, GNU and Linux started out well ahead. Any transfers in quality and robustness have probably gone the other way! :)

    (And so much for all those Sun fans who think that Sun needs to worry about Linux stealing code from OpenSolaris. You should, instead, be sorry that Sun's oddball licensing has made it nearly impossible for you to use code from Linux!)

    Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light.

    [ Reply to This | # ]

    False claim of copyright?
    Authored by: Anonymous on Friday, July 15 2005 @ 02:02 AM EDT
    Would this be a false claim of copyright, as defined in 17 USC 506? "Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500."

    The new email may make it possible to prove fraudulent intent. This is only a misdemeanor, but it is a criminal offense.

    [ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: fudisbad on Friday, July 15 2005 @ 02:10 AM EDT
    "It doesn't really spell out anything," Stowell said of Davidson's

    It spells out a number of things including but not limited to:

    S-E-C I-N-V-E-S-T-I-G-A-T-I-O-N
    S-H-A-R-E-H-O-L-D-E-R L-A-W-S-U-I-T-S
    M-O-R-E (counter) L-A-W-S-U-I-T-S

    See my bio for copyright details re: this post.
    Darl McBride, show your evidence!

    [ Reply to This | # ]

    O'Gara was right again
    Authored by: Anonymous on Friday, July 15 2005 @ 02:15 AM EDT
    And PJ was wrong. And Darl was telling the truth.

    Darl said you weren't seeing all the evidence, that the sealed exhibits would
    change everyone's perception of the case. Maureen said those exhibits were
    critical to professional journalistic analysis.

    And did all you hive-mind folk listen? Or did you mock?

    Now the truth is out. We weren't seeing all the evidence. And now that they are
    out, hidden e-mails are effecting PJ emotionally.

    But is she big enough to admit that Maureen was right all along? Or is there any
    big thank-you to Maureen for exposing this vascular-fluid-vaporizing

    NO! There's not a word about that in the whole article.

    And Maureen is showing what a professional journalist SHE is by not crowing over
    this new evidence of her correctness -- in fact, by not mentioning it at all.
    And I bet she won't. Ever. Because SHE'S a professional journalist.

    //claiming prize for most politically-unclassifiable Groklaw post of the week,
    mua-ha-ha, before going back to Project Gutenberg to proofread more of Jonathan
    Swift's collected prose works.

    [ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: Anonymous on Friday, July 15 2005 @ 02:24 AM EDT
    If I remember correctly, Darl McBride said the reason they looked into the Linux
    thing was because of something an IBM guy said at a conference. Does this mean
    that SCO had been looking for ways to get Linux before that?

    [ Reply to This | # ]

    Big mistake, PJ
    Authored by: Anonymous on Friday, July 15 2005 @ 03:22 AM EDT
    Shame on you.

    [ Reply to This | # ]

    "we will be [answering questions] in a court setting if it is necessary"
    Authored by: Anonymous on Friday, July 15 2005 @ 03:42 AM EDT
    It is necessary. In Red Hat versus SCO. I can hear the champagne corks popping
    at Red Hat right now.

    [ Reply to This | # ]

    I suppose this is a present for RedHat
    Authored by: Anonymous on Friday, July 15 2005 @ 04:08 AM EDT
    Finally they have got a proof beyond any doubt that they were really FUDing them
    knowing that all were lyes. I hope they will report this in the new letter.

    Question for the lawyers. Is this enough to reopen the red hat case?

    [ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: Pogue Mahone on Friday, July 15 2005 @ 04:13 AM EDT
    This is the line that makes my blood boil: ... and more general IP issues were just too vague ...

    There is no such thing as a "general IP issue". All "IP issues" are violations of specific statutes - copyright, patent, trademark, trade secret etc. All of which have different laws and different case histories.

    There is no such thing as general IP legislation.

    [ Reply to This | # ]

    Lines and lines of copied code.
    Authored by: Anonymous on Friday, July 15 2005 @ 07:28 AM EDT

    So: Was Darl lying about "lines and lines" of code shared with Unix
    and Linux?

    He probably wasn't. He just probably misunderstood the direction of the
    copyright infringment.

    Does he really think those low paid programmers he used were competent enough to
    write an OS. When there is one they could download off the Internet?

    [ Reply to This | # ]

    Actually, I rejoice!
    Authored by: Anonymous on Friday, July 15 2005 @ 07:42 AM EDT
    After Darl and company have tried for so long to cast shadows of doubt on Linux
    and OSS in general, I hope that this message...

    "At the end, we had found absolutely *nothing*. ie no evidence of any
    copyright infringement whatsoever."

    ...will finally be heard and their crooked ways turn out to skyrocket the Linux

    After months of scrutiny, they have found *absolutely nothing*. No copyright
    infringement whatsover.

    Isn't that just marvelous news?

    What has been started as an accusation turns out to justify the OSS

    [ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: kberrien on Friday, July 15 2005 @ 08:42 AM EDT
    I find it wonderfully ironic, that those media folks that are believe to be SCO
    sympathetic, or cronies - who pushed the opening of documents - have now created
    a situation where the exposure has revealed further evidence against SCO's case.
    Meanwhile, those media folks are silent.

    Absolutely wonderful...

    as PIL says, "This is what you want, this is what you get..."

    [ Reply to This | # ]

    McBride says email is inaccurate
    Authored by: Stumbles on Friday, July 15 2005 @ 10:41 AM EDT
    Time for the spin;

    SCO bites back on Linux memo claims

    You can tune a piano but you can't tune a fish.

    [ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: pooky on Friday, July 15 2005 @ 11:37 AM EDT
    "Surely they didn't demand money based just on the 1999 memo with its vague
    claims of possible issues and fragments of code, particularly when later Mr.
    Davidson reviewed the study and said it added up to nothing"

    Actually, this explains a lot of the shortcomings of SCO's case doesn't it?
    Barring some other evidence that is currently sealed explaining what caused them
    to bring action, the only conclusion I see that makes sense is they are
    desperate and did exactly as stated above.


    Many Bothans died to bring us this information.

    [ Reply to This | # ]

    The Michael Davidson Email - SCO v. IBM
    Authored by: Anonymous on Friday, July 15 2005 @ 12:09 PM EDT
    Well, I did my own (completely contrived) analysis of the Linus vs SCOUnix code.
    I found that these lines showed up literally THOUSANDS of times in both code
    bases(one per line)

    int [...];
    public void [...]

    and last but not least,
    the letter 'q', which is a surprisingly little-used letter, showed up at least 3
    times in the source code of both the Linux kernel and the SCOUnix kernel and
    their related libraries. Now, I think you can plainly see the attempt to hide
    their blatant stealing. I mean, you can't come up with the letter q on your

    [ Reply to This | # ]

    • The Letter Q - Authored by: the_flatlander on Friday, July 15 2005 @ 02:34 PM EDT
    • Q analysis - Authored by: Anonymous on Friday, July 15 2005 @ 03:04 PM EDT
      • Q analysis - Authored by: Anonymous on Friday, July 15 2005 @ 04:32 PM EDT
    Great news - once SCO goes bankrupt
    Authored by: Anonymous on Friday, July 15 2005 @ 12:29 PM EDT
    It can't be too long before SCO runs out of cash and dies. Now how will Darl
    and company defend themselves from the inevitable shareholder lawsuits?

    [ Reply to This | # ]

    Authored by: SaveDrury on Friday, July 15 2005 @ 01:42 PM EDT

    HERE IT IS It is a PDF file, so be warned.

    [ Reply to This | # ]

    SCO Releases Schwartz Study
    Authored by: SaveDrury on Friday, July 15 2005 @ 01:47 PM EDT
    SCO has released the Schwartz Study here, as a pdf

    [ Reply to This | # ]

    What I found in my Swartz this morning
    Authored by: AllanKim on Friday, July 15 2005 @ 01:50 PM EDT
    Downloaded a copy of what is represented to be a report by Robert Swartz dated
    October 4, 1999, and addressed to Steve Sabbath and Doug Michels:

    According to the memo, a copy of Red Hat 5.2 (from the local Best Buy) was
    compared to source code for various versions of OpenServer and UnixWare. The
    report claimed to find that parts of Linux were "clearly written with
    access to a copy of Unix sources" and includes a table of files with
    alleged similarities.

    However, buried deep within the conclusions are caveats that clearly state that
    the code similarities had not been investigated, and could have come from
    third-party code or unencumbered BSD code.

    The report includes a table of files with alleged similarities. Some come from
    the Linux kernel, but most come from libraries or GNU utilities (e.g. glibc,
    ncurses, yacc).

    A jaundiced eye might suspect that the report was the product of a consultant
    telling clients what they wanted to hear in the hope of getting more lucrative
    work. I don't know Mr. Swartz and I'm sure he's a more honorable man than I am,
    but if I'd received such a ludicrous assignment I would have been tempted to
    bleed my clients for as much filthy lucre as I could before reporting what their
    own internal experts had told them.

    I'd textify it but my boss is due back from vacation soon ... I do recommend it
    as very amusing reading.

    [ Reply to This | # ]

    Correct me if I'm wrong but...
    Authored by: Anonymous on Friday, July 15 2005 @ 04:06 PM EDT
    Didn't we have this previously? like months ago or longer?

    and wasn't there another document filed in relation from a *REAL* MIT guy that
    did all sorts of crazy comparisons and found NOTHING?

    wasn't that also filed in the cases?

    I seem to recall this. This seems to be a massive duplicate of a previous
    posting from months ago.

    or am I missing something? and shouldn't we repost that MIT stuff again (I mean
    the real MIT stuff)

    [ Reply to This | # ]

    Disposition? Michael Davidson/Reg Broughton
    Authored by: Saturn on Friday, July 15 2005 @ 06:50 PM EDT
    It seems these two provided depositions to the court that might make interesting reading given the content of this email. Just a thought.

    See for a Groklaw reference to Michael Davidson's and Reg Broughton's desposition.

    I would **love** to read those... anyone know if they've been published?

    My own opinion, and very humble one too.
    Which is probably why I'm not a lawyer.

    [ Reply to This | # ]

    RICO Prosecution?
    Authored by: Anonymous on Friday, July 15 2005 @ 10:21 PM EDT
    Doesn't this open up SCO to RICO prosecution?

    If I read it right, they need to commit any two of a laundry list of crimes to
    be subject to it (RICO is a much bigger deal when an organization is
    prosecuted). SCO appears to have committed two of the crimes listed: Copyright
    violation (distribution of GPL code in violation of the license) and Financial
    Fraud (this whole sorry pump and dump).

    Seems to me there oughta be a politically ambitious DA out there looking to put
    these guys away for a LONG time...

    [ Reply to This | # ]

    Simply Amazing
    Authored by: Anonymous on Saturday, July 16 2005 @ 02:40 AM EDT
    I am absolutely stunned that the senior management team at a software
    corporation would squander away money and resources that could be used to renew
    the product cycle on such a complete farce as SCO's lawsuit. That they took
    time to actually release memos is borderline comical.

    SCO is pathetic.

    [ Reply to This | # ]

    • Simply Amazing - Authored by: Anonymous on Saturday, July 16 2005 @ 09:50 AM EDT
    Could this memo be dated 1999?
    Authored by: oleo on Sunday, July 17 2005 @ 06:41 PM EDT
    Not that I claim SCO to be presenting some kind of falsified evidence, but if
    you look at the last page of Swartz' memo, specifically, at the line starting
    with YACC, you will see something interesting. Near the right border, there is
    something looking very much like MS Word's comment box (with
    "</TDf" inside). The only problem is that these nice rounded
    comment boxes appeared a couple of years later, as far as I recall.

    Well... That nice theory of mine, however, only works if the PDF is authentic.
    Where did it come from?

    [ Reply to This | # ]

    The Michael Davidson Email/Swartz Memo - SCO v. IBM [3 updates]
    Authored by: Anonymous on Friday, July 22 2005 @ 11:00 AM EDT
    With this as their core strategy, I am really surprised that SCO didn't take the
    extra step in deceit and spend time over the last few years actually
    contributing proprietary code to Linux. They could then use that as the
    evidence and blame it on IBM contributions! Sheesh!

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )