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SCO, Given a Mile in Discovery, Would Like Another Mile
Friday, September 09 2005 @ 09:50 AM EDT

Believe it or not, folks, SCO has filed a Renewed Motion to Compel [PDF]. Here is the Memorandum in Support [PDF], with exhibits. Of course, they request oral hearings. They love dragging discovery out as long as possible.

Here we go again, then. August 1st was the deadline for IBM to turn over all the code discovery, and they say they did. You can read their letters to SCO, attached to the memorandum as Exhibits. There is a July 19 letter, in which IBM tells SCO that they have complied in full and turned over all nonpublic Linux information. They will also have the opportunity to tell their side of things more fully in a response to this motion. Until then, it isn't possible to know for sure everything that is going on. But given the history, you'll forgive me if I note two things:

  • Two years and counting, evidently SCO still can't find what it is looking for to support its claims -- hence this motion. Every time they ask for more discovery, it tells me that they still don't have a leg to stand on, so they keep having to beg for more;
  • On page 6 of their memorandum, they quote IBM as saying that given an inch, SCO will ask for a mile. The Utah court gave SCO the mile it asked for and then some, in a discovery order that was so over the top the court itself granted in part [PDF] IBM's Motion for Reconsideration, saying: "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." Now SCO is back, and having been given a mile, they now would like another mile.

What I see them doing is interpreting each court order as meaning more must be turned over than the language itself strictly says, and then they complain that IBM doesn't interpret the order the same broad way they do. They go back and forth in letters and email and IBM still doesn't agree with them, and then they ask the court to rule that their broader interpretation be considered the correct one. Sometimes they succeed. What that means is that there will be no end to this escalation. Of course, being SCO, they also portray IBM as dragging its feet or not complying, when in fact, SCO keeps moving the line.

Here, they do exactly that again, arguing now (on page 8 of the memorandum) that it is only "reasonable" to conclude that there must be certain information in CMVC related to nonpublic contributions to Linux that IBM says doesn't exist. SCO can't get it through its head that Linux isn't developed like AIX or any other proprietary software. It just isn't, so there won't be strict equivalencies in development processes.

When SCO asked for hardware information in a breach of contract software case, that ought to be the clue to the judge that SCO is being unreasonable and just wants to get on IBM's last nerve by dragging this out to the nth degree of minuteness. Whatever the court orders, they will ask for more.

Check out footnote 2 on page 8, for example, for a good laugh:

2. In addition, IBM has reduced the amount of publicly available Linux-contribution information by removing its Linux-patch contributions from its website (http://www-124.ibm.com/linux/projects/) some time between February 24 and March 8, 2005 ("the removal date"). IBM's obligation to provide SCO with accurate and up-to-date Linux-contribution information is inherent to SCO's requests and to this Court's orders. As a result, any Linux patches that IBM submitted after the removal date constitute non-public Linux-contribution information that IBM must produce pursuant to the Court's orders. Nonetheless, IBM's completed production does not contain source code or development history for any patches IBM contributed to Linux after the removal date.

This shows the sneaky SCO style. First of all, IBM's submissions to Linux are public still, if we are talking about those that are accepted into the Linux tree. Those patches are not kept on IBM's website. They are kept on the Internet by the Linux kernel maintainers and are publicly available to SCO and the rest of the world 24/7. Nothing IBM does on its website affects that publicly available information. IBM has no obligation to put those on its website, and if they don't have them there, it doesn't magically transform them into nonpublic Linux contributions. That is just silly. SCO would like to so transform them so that IBM will have to provide more information about the public contributions than they otherwise have to. SCO knows about kernel.org; when they were a Linux company, their employees donated code to the Linux kernel, so they know precisely how contributions are publicly available there.

To me, it's like in the old cowboy movies, where the bad guy shoots at a man's feet, to force him to dance. Why does he do it? He just likes to bully people. He doesn't need the dance. He is just having some sicko fun, which is why he is the bad guy in the movie. SCO's behavior reminds me of that, just trying to make IBM dance to their discovery salvos.

I hope the judge shares my view that this footnote is more than annoying -- it's dishonest. Maybe the lawyers don't understand the tech, but SCO does. And I hope Judge Wells will finally understand that nothing she orders will ever block SCO from asking for more. When she ordered IBM to turn over the mountains of unreleased versions of AIX and Dynix, she expressed that she was doing it so that SCO couldn't come back and argue that it hadn't been given enough. That isn't what will make SCO stop, as this Motion proves. Only the judge can make them stop, and, in my view, it's time.


  


SCO, Given a Mile in Discovery, Would Like Another Mile | 257 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here please
Authored by: fudisbad on Friday, September 09 2005 @ 09:51 AM EDT
For current events, legal filings and Caldera® collapses.

Please make links clickable.
Example: <a href="http://example.com">Click here</a>

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

[ Reply to This | # ]

Corrections here please
Authored by: fudisbad on Friday, September 09 2005 @ 09:53 AM EDT
Only to the article, not SCO's legal strategy.

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

[ Reply to This | # ]

The real reason
Authored by: overshoot on Friday, September 09 2005 @ 10:07 AM EDT
There's really a much simpler reason for this motion: delay. With this motion pending, SCOX can argue that there's no way for them to comply with the upcoming "allegedly misused materials" deadline.

Of course, that means that the schedule will have to be renegotiated -- again -- and of course there will be irresolvable differences, so there will have be dueling motions, oral arguments, etc. By the time the schedule is once again set, all of the dates will have once again moved back by several months.

From SCOX' point of view it's worth a shot. The last try moved back the trial by amost a year and this one could get them another half-year or so.

[ Reply to This | # ]

I wonder
Authored by: Anonymous on Friday, September 09 2005 @ 10:11 AM EDT
if this is the result of the legal cap? What better way to get more time and
dissruption than with a cheap motion to compell? Why waste your valuable hours
fighting a dead case when a cheap motion to compell can put this case on the
backburner for a few more months so you can work on other cases? When I read
it, it didn't even seem like they were trying.

Maybe it's just me.

[ Reply to This | # ]

Caldera's Current Theory...
Authored by: the_flatlander on Friday, September 09 2005 @ 10:13 AM EDT
2. In addition, IBM has reduced the amount of publicly available Linux-contribution information by removing its Linux-patch contributions from its website (http://www-124.ibm.com/linux/projects/) some time between February 24 and March 8, 2005 ("the removal date"). IBM's obligation to provide SCO with accurate and up-to-date Linux-contribution information is inherent to SCO's requests and to this Court's orders. As a result, any Linux patches that IBM submitted after the removal date constitute non-public Linux-contribution information that IBM must produce pursuant to the Court's orders. Nonetheless, IBM's completed production does not contain source code or development history for any patches IBM contributed to Linux after the removal date.
I think this represents the latest "new" legal theory that the SCOundrels have come up with: It isn't that the contents of the contributions represent infringement, it's that IBM's making the contributions is a violation of IBM's contract with AT&T.

You'll notice how quite Darl's been lately about how much money *I* owe him over IBM's [imaginary] voiolation of its contract with AT&T.

The Flatlander

I think the SCOundrels have gotten to the bottom of their barrel now... I am just waiting to see if the court has noticed, too.

[ Reply to This | # ]

still gunning for an appeal
Authored by: DWitt_nyc on Friday, September 09 2005 @ 10:16 AM EDT
SCO is still trying to pull off what M$ did with Judge Jackson in the
antitrust
case. whether they have the cash or not, is another story...

[ Reply to This | # ]

Aix/Dynix as "early stage of linux"
Authored by: alansz on Friday, September 09 2005 @ 11:00 AM EDT
I find the argument in the first footnote quite interesting. AIX and Dynix, says
SCO, are preliminary stages in Linux development, and since the court ordered
IBM to produce AIX/Dynix source, the court must have also intended them to
produce Linux source because it's just a later stage of AIX/Dynix.

Are they really saying this with a straight face? Or are there new lawyers with
no sense of either history or technology involved now?

(I suppose, on SCO's theory of the case, contributions to Linux from AIX/Dynix
would be considered a later stage of AIX/Dynix. I guess if I write an article,
and later contribute parts of it to someone else's book, their book is a later
stage of development of my article?)

[ Reply to This | # ]

More humour for PJ
Authored by: inode_buddha on Friday, September 09 2005 @ 11:15 AM EDT
More humour for PJ
here [humorix.org]
and here [humorix.org]

---
-inode_buddha
Copyright info in bio

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

[ Reply to This | # ]

SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: Anonymous on Friday, September 09 2005 @ 11:17 AM EDT
Question: How can the contributions which IBM makes to Linux after March 2005
provide evidence that they made illegal contributions to Linux when SCO
initially brought the lawsuit against them? The only use it could have is to
provide evidence of an ongoing problem, but to have an "ongoing"
problem, you have to provide that the problem existed in the first place. Why
would a judge allow discovery for this if SCO has been unable to show that there
was a problem when the suit was initiated?

[ Reply to This | # ]

Trouble for the lawyers???
Authored by: rao on Friday, September 09 2005 @ 11:32 AM EDT

A lot of the BS that SCO has spewed to the court in the past could be attributed to ignorance. This cannot. SCO was a Linux company. They made contributions to the linux kernel. They know how that process works. This motion contains LIES. SCO knows beyond any shadow of a doubt that they are LIES. Are there no repercussions for them?

[ Reply to This | # ]

Non-Public Contributions, one possibility
Authored by: kawabago on Friday, September 09 2005 @ 11:52 AM EDT
There is one possible source of non-public linux contributions. That would be
patches submitted but not accepted into the development tree. Those would not
be published so they would not be available to anyone except IBM and the
maintainers that rejected the code. However, if code is offered but rejected by
linux maintainers, is it still considered donated to Linux?


---
TTFN

[ Reply to This | # ]

SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: Sunny Penguin on Friday, September 09 2005 @ 12:36 PM EDT
I do not agree with this:
" To me, it's like in the old cowboy movies, where the bad guy shoots at a
man's feet, to force him to dance."

I see this as a man on death row, when asked what he wants for a last meal
replying "Peking Duck"; anything to hold off the execution for another
24 hours.
When discovery is over(or before)Caldera hopes to be bankrupt; Then they tell
the judge in the counter-claims trial "Why go after a poor, broke, little
Utah company?" (While FUDing till the end too)
If discovery ended today, Caldera would need to pay IBM the remaining Caldera
assets tomorrow.


---
"Numerical superiority is of no consequence. In battle, victory will go to the
best tactician."
~ George Custer (1839-1876)

[ Reply to This | # ]

SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: wvhillbilly on Friday, September 09 2005 @ 12:53 PM EDT
Another mile? How about a few parsecs?

IBM gave them a replica of the entire CMVS (or whatever it was) server, as I recall, that had all the source code for all the changes and revisions made to AIX, even those which were not used. How much more than everything can they want?

---
What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

CMVC - huh?
Authored by: cmc on Friday, September 09 2005 @ 02:35 PM EDT
Someone please correct me if I'm wrong, but didn't IBM give SCO complete access
to their CMVC database? If so, then how can there possibly be anything in the
database they're trying to hide? If it's in there, and SCO has access to the
database, then it's SCO's fault for not seeing the information.

SCO reminds me of those games children play where they always try to one-up each
other, and one of them eventually comes out with "infinity plus one".
That seems to be what SCO wants here. Everything, plus one.

cmc

[ Reply to This | # ]

Wells will finally understand? ***Nope***
Authored by: SilverWave on Friday, September 09 2005 @ 02:58 PM EDT

Wells will finally understand? Nope

Don't be surprised when she just caves in to SCO again.

---
"They [each] put in one hour of work,
but because they share the end results
they get nine hours... for free"

Firstmonday 98 interview with Linus Torvalds

[ Reply to This | # ]

Ye old chess game
Authored by: GLJason on Friday, September 09 2005 @ 03:18 PM EDT
It looks like IBM has really pulled one over on SCO, and if SCO has just figured it out now, I would say it's too late to do anything about it. Of course SCO wants the development history for IBM's Linux contributions. The only problem is they have never really gotten the court to order IBM to hand that over. The court has instead ordered IBM to hand over all non-public contributions to Linux. That is nonsensical as all their contributions to Linux are made publicly because the development of the kernel is a public process.

It is SCO's own fault though. They were too busy asking for every possible version of AIX and Dynix that they forgot what the suit was supposedly about (I know that has changed more than once though so I can't blame them), the Linux contributions.

[ Reply to This | # ]

SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: LarryVance on Friday, September 09 2005 @ 03:22 PM EDT
Only the judge can make them stop, and, in my view, it's time.

It was time a long time ago for the judges to stop this charade. If the slimy lawyers do not understand the tech then they should not be running their mouths off about it. The lawyers are responsible for perpetrating this fraud in hopes that they will get some booty from it. tSCOg knew from the beginning that this was a fraudulent course of action. The lawyers should have know from the beginning that this was a fraudulent course of action. The judges should have know within a very short timeframe that this was a fraudulent action. It should have ended two years hence.

---
ours is a sick profession marked by incompetence, lack of training, misconduct and bad manners. -- Chief Justice Warren Burger

[ Reply to This | # ]

IBM not producing JFS?
Authored by: GLJason on Friday, September 09 2005 @ 03:28 PM EDT
Did anyone notice page 10 on the memorandum in support?
IBM's CMVC production includes database entries for at least 450 JFS-related files but does not contain the files themselves. Instead, IBM has replaced them with a "non-responsive" placeholder. ... IBM responded that the files 'are neither part of nor are related to the AIX operating system, and were thus properly withheld from production.'
I see one of two possibilities:
  1. The "450" files are really something like 50 versions of 9 files. They are really not part of the AIX operating system and are something to do with OS/2 that was still in with the code in CMVC.
  2. IBM doesn't consider a filesystem driver as part of the operating system, just a driver. Therefore JFS is not part of AIX at all and cannot be considered to be associated with the code so SCO's viral AT&T license theory won't work.
If #1 is the case, no problem. IBM may have to show the judge or at least explain what the materials are though.

If #2 is the case, I think the judge might be a bit angry with IBM. If that is how they are going to play the game, I doubt we'd see the end of discovery this decade. I can at least see that point though. The JFS files are not required for the operating system to work and not based on AT&T code, so can they really be considered part of AIX? Would IBM have to provide code for 'vi' also since it is included with AIX?

[ Reply to This | # ]

Attempted Transcript Exhibit 2 SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: Anonymous on Friday, September 09 2005 @ 04:31 PM EDT
VIA FACSIMILE AND U.S. MAIL


Edward Normand
BOIES, SCHILLER & FLESNER LLP
333 Main Street
Armonk, NY 10504

Re: SCO v. IBM; IBM v. SCO

Dear Ted:

   Following up on our telephone call, this will confirm that any patches IBM contributed to
Linux were and are publicly available. After the website www-124.ibm.com was taken down,
any new contributions that woud have been posted there were insstead posted on other, project-
specific (and publicly accessible) websites. Of cours, all of IBM's Linux contributions are by
nature publily accessible, regardless of whether they were posted to an IBM website. As far as
the programmers notes and similar documents for all of IBM's Linux contributions, we objected
to the only document request that arguably sought this information (Request No. 35) as overly-
broad, unduly burdensome, and not reaonably calculated to lead to the discovery of admissible
evidence, in large part because SCO refused to identify any particular Linux contribution for
which it sought this type of information. Nothwithstanding these objections, we have produced
thousands of documents related to IBM's Linux contributions, including the types of documents
you identify.

   I trust this answers your questions. If not, please let me know. Thank you.

         Very truly yours,

         Todd M. Shaughnessy

TMS:dw
cc:   Brent Hatch
      David Marriott
      Peter Ligh
      Amy Sorenson

[ Reply to This | # ]

My prediction ...
Authored by: Anonymous on Friday, September 09 2005 @ 04:34 PM EDT

Response from Armonk will be a request to file an overlength memo (reply?).

And then they'll go to town on SCO in such a way that the judge will have to sit
up and take note.

The last time, they took things calmly and then, very politely, told the judge
that they felt that what she'd ordered was over-broad. Which she accepted. But
that also put her on notice that they weren't playing around any more.

This time, IMHO opinion, their reply will put everyone on notice that, if SCO
are given one more inch in discovery (let alone a mile), then they'll go over
her head.

I could very well be wrong, but the most recent filings from the Nazgul suggest
to me that they're going to take any attempt to change the agreed dates again
very badly!

[ Reply to This | # ]

SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: Anonymous on Friday, September 09 2005 @ 05:02 PM EDT
A western movie? No. Simply musical chairs. The number of possible seats is
only slightly dwindling. The question is when will the music stop on SCO. The
judges in these cases just seem to be adding chairs rather than subtracting
them.

Close discovery? No. SCO will probably be allowed more! I see no end to this
fiasco.

[ Reply to This | # ]

Legal question - SCO's finances and trial dates
Authored by: Anonymous on Friday, September 09 2005 @ 05:05 PM EDT

I know that this isn't the position with SCO just yet (probably) but, from their
recent filings it's not a great stretch).

Let's say a court sets a trial date, in a piece of litigation, for 1 year hence
from today.

Three months from now it becomes clear to everyone that the company that brought
suit will probably be out of business in a further three months (six months from
today).

So by the date of the trial there may no longer be a plaintiff. At that point
the defendant would be denied natural justice in regard to the burden that
they've had to assume in preparing for the trial and submitting to vast
discovery requests.

Would there not be a case for the judge ordering the plaintiff to post a bond of
some sort, attach their earnings, something like what Novell have asked for
regarding SCO's unpaid licence fees?

Just seems to me that there should be something in place to ensure that a
defendant is not denied justice just because the plaintiff's company goes round
the U-bend.


[ Reply to This | # ]

The Bait And Switch--A Trick So Old, It's New
Authored by: Anonymous on Friday, September 09 2005 @ 06:35 PM EDT
Hey, everybody!

I disagree with the reason for SCO pulling this number. I have another theory.

Remember, the Q3 conference call resulted in zilch for press. The release of
OpenSewer 6 hasn't done anything positive, and in fact, pieces are saying not to
buy simply because the company will be a glass crater in about a year.

September 12 is when they are supposed to respond to Novell's cluster bomb
attack.

I think SCO is trying to take our eyes off the shell with the pea under it. The
press gets so focused on this and the soap opera they are spinning (and, by
extension, we get so frustrated and angry at their antics) that the Novell thing
doesn't have as much impact.

I just find the timing beyond suspicious.

Dobre utka,
The Blue Sky Ranger

MicroSoft Technical support: DIAL 1-800-SUCKERS

[ Reply to This | # ]

Math doesn't work
Authored by: Anonymous on Friday, September 09 2005 @ 07:43 PM EDT
Its not another mile they want.

They asked for an inch, were given a mile (63360 inches), now they ask for 63360
miles.

[ Reply to This | # ]

You know, I'm getting pretty sick of this.
Authored by: mobrien_12 on Saturday, September 10 2005 @ 12:06 AM EDT

It's not the shameless whining from SCO and their disgusting lawyers.

No, I'm sick of the fact that Judge Wells gave SCO a ridiculous amount of discovery, costing IBM a ridiculous amount of money and time and delaying the case. I'm sick of the fact that SCO keeps getting more and more discovery requests and delaying the case while they havn't produced a shred of infringing code, despite the fact that Judge Wells told them that they had to go first! Whatever happened to that order? Did she just forget it?

I'm sick of the fact that SCO is continually abusing the legal system to harass IBM and avoid trials so they can prop up their failing buisiness model, and it's working! Darl and Stowell and Darl's stupid brother and all the other parasites have gotten rich off of this scheme. MS (who was a major funder of SCO) gets to sit back and see the biggest linux FUD campaign ever.

[ Reply to This | # ]

SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: BobinAlaska on Saturday, September 10 2005 @ 01:21 AM EDT
SCOG complains that IBM took some info off of a website, or maybe took the
website down. Maybe IBM should raise the issue of everything that has
dissappeared from SCOG's site and the fact that they have stopped the wayback
machine from saving them also. Seems like they really love to be able to do
whatever they want but want to limit IBM. Would be funny if it weren't so sad.

---
Bob Helm, Juneau, Alaska

No, it is not always cold and dark.

[ Reply to This | # ]

Mark, pull another Motion to Compel out the cupboard, that's a good lad
Authored by: Anonymous on Saturday, September 10 2005 @ 04:17 AM EDT
Reading this I just realized it was pre-written, probably shortly after the last
one if not before. Just leave a couple blanks to fill out with some dates and
quotes from discovery so it looks newer, but there is absolutely nothing here
that they haven't already tried before, and nothing that isn't speculation,
innuendo, fantasy or outright falsehood. Some of this one is further out in
left field than before (AIX & Dynix just development stages of Linux??), but
that's just because they're packing a larger load into the scattergun in the
vague hope it hits something.

It was simply sitting in someone's desk drawer, waiting for delivery. All
according to a schedule mapped out previously; send annoying letter to IBM
requesting moon/sun, force them to deny, whine to judge, wait until deadline
then file motion to compel.

Proof positive they never had a case & knew all along they didn't. That
explains the salary cap on a payment schedule, and the timing of certain
motions. All timed to suspend reality for a given period of time, which looking
at the schedule and their Q3 I'd say is about 3-4 months, and to syncronize all
their annoying loose legal ends with the end of their cashflow. As we've known
all along, its not about derivative theories, or contracts, or copyrights. Its
solely about delay, and making life miserable for IBM.



[ Reply to This | # ]

Appeasement: SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: Anonymous on Saturday, September 10 2005 @ 12:55 PM EDT
It strikes me that there's been a basic mode of appeasement during discovery
granted to the plaintiff so that, should they lose, they've got no leg of
"moral
superiority" to stand on.

When looking at history we can see that appeasement only works so far before
the organization being granted the privilege gets smacked down.

One must be very careful to not continue to bluff beyond a certain point,
though: it can be very difficult to recognize when one has pushed their
creditors past their last nerve.

[ Reply to This | # ]

SCO, Given a Mile in Discovery, Would Like Another Mile
Authored by: Anonymous on Saturday, September 10 2005 @ 11:33 PM EDT
Isn't what IBM contributed more relevent to the legal case than what Linus
accepted? In that case, SCO is correct. If only what was accept was relevent
that IBM's attempted malice (presuming it was malice) would make them guilty
wether or not they succeeded in the effort. Therefore, what was on IBM's web
site was or what they might have emailed or otherwise sent was what should be
given in discovery--not what kernel maintainers have now, because there may be
questions about whether or not that is exactly what and all that was given to
them.

P.J., I agree SCO is evil, but I do also think you sometimes miss the points due
to your own biases. Try to be the devil's advocate sometimes and you'll see
that there are some points they can make....even if 99% of their arguments are
garbage.

Matthew C. Tedder

[ Reply to This | # ]

Non-public patches to Linux
Authored by: Anonymous on Sunday, September 11 2005 @ 12:00 AM EDT
> As a result, any Linux patches that IBM submitted after the removal date
constitute non-public Linux-contribution information that IBM must produce
pursuant to the Court's orders.

Darl, honey, here they are:

http://www.kernel.org/
http://marc.theaimsgroup.com/?l=linux-kernel

It doesn't come any more public than that. Heck, you can even subscribe to this
thing! Evidence delivered straight to your inbox ;-)

[ Reply to This | # ]

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