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SCO's Just in Case Motion to Compel - as text
Saturday, September 10 2005 @ 12:14 PM EDT

Here's SCO's new Motion to Compel [PDF], as text, thanks to the tireless Steve Martin.

What they are arguing over now is exactly what the court ordered IBM to turn over with respect to Linux contributions. SCO argued and eventually got all development history for AIX and Dynix, including all nonreleased materials, and now they want the same for Linux. The rest is SCO pretending that the court already so ordered. It's by far my favorite SCO performance, because it is quintessential SCO.

SCO interprets the order in its own unique way: they want more. That is the short version. The longer version goes like this: IBM was told to turn over the programmers' notes, white papers, design documents, comments and notes for 3,000 individuals who contributed to AIX and Dynix. IBM, in its Motion for Reconsideration, asked Judge Wells to defer the bulk of that until SCO had a chance to review all that it had and would be given in a smaller sample. The Judge agreed and ordered IBM to turn over such information only for 100 of the individuals who made the most important contributions. IBM was also told to turn over all nonpublic Linux contribution information.

Now, SCO is arguing that Judge Wells must have meant that IBM is to turn over all programmers' notes, white papers, etc. for Linux too, public and private. Since IBM doesn't agree that they are supposed to turn such materials over to SCO under the order, SCO tells the judge that they are withholding:

IBM has withheld the development history of Linux contributions, including such documents (which the Court has already held discoverable) as programmer's notes, design documents, white papers, and iterations, revisions, and interim versions of those contributions.

Um. What? Let's take another look at exactly what the Judge Wells ordered, so you can follow this incredible argument.

Here's what Judge Wells' April 19, 2005 Order told IBM to produce, and I've set it off in colored text so it is clear where it begins and ends:

In its Memorandum in Support, IBM specifically asks the court to:
defer the production of additional information relating to the development of AIX and Dynix until after SCO has had an opportunity to review the extensive data that IBM will be providing. After reviewing the data, SCO should be able to identify with specificity a reasonable number of developers, if any, from whose files it would like additional production and IBM can then provide the information SCO wants without having to search for, collect and produce redundant and cumulative discovery or discovery in which SCO has no interest.
IBM's Mem. in Supp. p. 5.

The court finds IBM's argument somewhat persuasive in appropriately balancing the burdens, costs and benefits associated with the production of this information. See Fed. R. Civ. P. 26(b)(2)(i) (stating that a court may limit discovery where "the discovery sought is . . . obtainable from some other source that is more convenient, less burdensome, or less expensive."). However, the court does not at this time strike its prior requirement that IBM produce the documents from the files "for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix." January 18, 2005 Order p. 16. Instead, the court finds it appropriate to defer the majority of the required production in light of the possible duplication of information contained in the other materials forthcoming from IBM.

Notwithstanding the court's deferral, the court hereby ORDERS IBM to produce the programmer's notes, design documents, white papers, comments and notes, contact information, specific changes made to code, and all relevant non-privileged documents from the files of the 100 individuals who made the most contributions and changes to the development of AIX and Dynix. This amounts to approximately 3% of the original requirement and is to be done although there may be some duplication. The court finds this appropriate because such information will provide a basis for SCO to compare what is in the files of individual developers, versus what is contained in the other materials produced by IBM. Following this comparison, and in accordance with IBM's representation, SCO can then identity additional developers "from whose files it would like additional production and IBM can then provide the information . . . ." IBM's Mem. in Supp. p. 5. IBM is to provide the information from these 100 individuals within 90 days from the date of this order. IBM is also to provide SCO and the court a privilege log for any documents that are withheld from the files of these 100 individuals. Objections to withheld documents will be addressed by the court at a later date.

Finally, the court wishes to note the arguments raised concerning possible modification of the court's January order. SCO specifically alleges that IBM seeks to modify its obligations and limit the discovery which it must produce. See SCO's Mem. in Opp. p. 4-10. The court does not address the majority of these issues because full production of required discovery by IBM pursuant to the court's order is not complete. Therefore, arguments concerning attempts to limit such obligations are premature.

However, prior orders make it clear that IBM is to provide ALL non-public Linux contribution information. The court's order entered in March 2004 states:

Pursuant to Rule 26(b), SCO should use its best efforts to obtain relevant discovery from the Linux contributions that are known to the public, including those contributions publicly known to be made by IBM. IBM, however, is hereby ordered to provide to SCO any and all non-public contributions it has made to Linux.
March 2004 Order p. 4 (emphasis added). To the extent that IBM has failed to do this, the court HEREBY ORDERS IBM to produce this information. This production is to be specific in nature including any code contributed by IBM to Linux that is otherwise not publicly known. Furthermore, this is to include the names and contact information of specific developers that made contributions, not just general names of teams or work groups. For example, if it is public knowledge that a group of IBM developers known by the name of Alpha made contributions, but the individual members of Alpha are not publicly known, then IBM must produce the names and contact information from this group to SCO. Such required information is inherent within the court's previous orders because it would be considered "non-public" Linux information that is available to IBM. IBM is to produce this information within 75 days from entry of this order.

As you can see, they were not ordered to produce what SCO is now claiming that they haven't produced. However, in the Memorandum in support of this Motion, SCO argues like this:

In those Orders, pointing to the fundamental importance of the programming history of the code ultimately copied into Linux, the Court ordered IBM to produce all of its Linux-development information, including the code of IBM's AIX and Dynix operating systems and their development histories. Id.

Yet IBM has construed the Court's Orders to cover programming-history information only for AIX and Dynix -- not Linux.

That's how it reads to me too, actually, that they were ordered to turn over development history for AIX and Dynix. They were also ordered to turn over Linux nonpublic information, and the judge even explained what she meant by that. Did she list development information? No. No, she didn't. She lists nonpublic code and the names and contact information of specific developers that made the contributions.

SCO tries to wriggle around that problem like this, in footnote one of the Memorandum:

The January 18 Order to produce all versions of AIX and Dynix code only highlights the flaw in IBM's argument. AIX and Dynix are themselves relevant to this litigation because they are stages in the development of Linux code. By ordering IBM to produce "all versions and changes to AIX and Dynix," January 18 Order at 9-10, the Court essentially ordered IBM to produce the development history for these interim stages in the development of Linux. If the Court saw fit to order that level of development information, then it certainly follows that the Court's Orders cover programming histories for the most proximate states in Linux development.

No, it doesn't. SCO would like it to be so. When lawyers write that a court "essentially" ordered something, it means it didn't exactly order it.

SCO earlier argued, in its opposition to IBM's Motion for Reconsideration, that IBM was trying to limit its obligations, and SCO explained why it wanted what it wanted:

In many instances there may well have been a development process -- including one conducted by IBM or Sequent programmers immersed in SCO's proprietary UNIX -- between the selection of AIX or Dynix material for Linux and the actual contributions to Linux. SCO requires access to that development history (including both code and related documentation) for exactly the same reason this Court has held that SCO needed access to the material evidencing the developers and development process of Dynix and AIX themselves.

The judge, however, didn't order IBM to produce what SCO asked for. SCO says she must have meant to. And even if she didn't, they'd like to press for it now.

Hint to SCO: go to www.kernel.org and you will find what you are looking for.

Oh, and they'd like IBM sanctioned, of course, for not interpreting things the way SCO does.

SCO may get more discovery, such as programmers' notes blah blah for nonpublic Linux contributions, just because the rules of discovery favor them, but if they get sanctions, I'll be simply amazed. They are very bold, these lawyers, kind of like door-to-door salesmen who put their foot in the door so you can't slam it on them.

What is the bottom line? That it doesn't matter at all, except to IBM, who is footing the bill. There is nothing hidden about Linux. SCO can dig until they hit China, and they'll never find their pot of gold. SCO is so used to proprietary methods of software development, it imagines that there just has to be more nonpublic materials than what IBM has turned over. All there is that is nonpublic might be a patch that wasn't accepted into Linux. Is IBM accused of infringement for patches that aren't even *in* Linux? Or for patches that were accepted and distributed? If you, correctly, answer the latter, what difference does nonpublic information make? I know. SCO has this ladder theory, but for it to matter, they have to show some infringement. Two years and counting, and so far, zilch. Oh, and you have to actually own a copyright or two. And be able to prove it.

The parties don't agree as to what the court has ordered turned over in discovery, in other words. IBM says it was ordered to turn over only Linux materials that are not already public. Pretty much everything they ever did is publicly available information, and SCO can do the work themselves, collecting everything. As for nonpublic contributions, IBM says they have done so and are in full compliance. SCO wants more and also thinks IBM has more than they have turned over. IBM has asked them to be specific as to what they want, and SCO's reaction is given in the footnote, which reads in part like this:

In light of the impending fact-discovery deadline, SCO has also served IBM with SCO's Seventh Request for Production of Documents, which seeks in extremely specific language the same Linux-development information at issue in this Motion. While SCO has served the request out of an abundance of caution, SCO believes (as explained in this brief) that the materials at issue have already been requested by SCO and ordered by the Court.

So rather than wait for IBM to respond to the discovery request, SCO claims they are withholding. Neat trick. A kind of time travel to the future.

Naturally, SCO isn't positive that its interpretation of what IBM is ordered to turn over is going to fly. Therefore, they have sent IBM the Request for Production of Documents, to cover their backs, and meanwhile, they filed this Motion asking for the very same things. Deadlines are looming, don't you know, and they haven't got a case yet, evidently, and after digging and digging, they have found no buried pot of gold. Now what? Give up and admit they have no case? While being paid millions? Ha!

No, they approach the court and rather than ask for more spoons to dig with, they instead claim that the court already so ordered more spoons. Oh, and just in case, they send a request to IBM for the same spoons they are asking the court to say the court already ordered IBM to turn over those very spoons.

Get it? Heaven forbid this discovery journey should ever end or that SCO should be straightforward. Of course, SCO portrays it as IBM withholding, based on their gut feeling that IBM just *must* have more to give.

I believe that is the theme of this entire litigation so far, that SCO would like IBM to give them something. Something green.

As you can see on Groklaw's IBM Timeline page, SCO has to tell the court by October 28, 2005 all allegedly misused material identified to date and to update interrogatory responses accordingly, and then the final deadline for the parties to identify any allegedly misused material is December 22. Time marches on.

One last thing. As I wrote yesterday, SCO told the court in the Memorandum that IBM had removed Linux contribution information from a certain website. On that basis, they asked that all contributions from that date onward be considered nonpublic. The gall of such a request is highlighted by one of the exhibits attached to this very motion, Exhibit 2, in which IBM's attorney writes to SCO in part like this:

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 would have been posted there were instead posted on other, project-specific (and publicly accessible) websites. Of course, all of IBM's Linux contributions are by nature publicly accessible, regardless of whether they were posted to an IBM website.

So, they know perfectly well that the material is still publicly available. Nevertheless, they pushed forward with their baseless request. See what I mean about quintessential SCO? I believe you can draw your own conclusions from this evidence without me saying another word.

***************************

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]

Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]

Attorneys for The SCO Group, Inc.

IN THE UNITED STATES COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION

Defendant/Counterclaim Plaintiff.

PLAINTIFF'S RENEWED MOTION
TO COMPEL


(ORAL ARGUMENT REQUESTED)

Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells

1

Plaintiff The SCO Group, Inc. ("SCO") respectfully moves the Court pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure again to compel International Business Machines Corporation ("IBM") to produce certain Court-ordered discovery.

In blatant disregard of SCO's long-standing discovery requests and the Court's previous orders, IBM has withheld crucial Linux-contribution information.(1) In particular, and notwithstanding the Court's most recent order to produce "ALL non-public Linux contribution information," Order of April 19, 2005, at 5 (emphasis in original), IBM has withheld the development history of Linux contributions, including such documents (which the Court has already held discoverable) as programmer's notes, design documents, white papers, and iterations, revisions, and interim versions of those contributions.

The deficiency in IBM's production is obvious from the near-complete absence of documents concerning Linux-development work from IBM research "projects" publicly known to be platforms for staging submissions to Linux, as well as documents concerning IBM's development work for, with, or on behalf of third parties that have made submissions to Linux. Although IBM has acknowledged that SCO's interrogatories and production requests sought "all of its contributions and development work in Linux," IBM Opp. to SCO Motion to Compel (11/19/03) at 3 (underline added), IBM has produced almost nothing concerning that development work.

2

SCO respectfully asks this Court to compel IBM to immediately produce all non-public information concerning IBM's Linux-development work, including programmer's notes, design documents, white papers, and iterations, revisions, and interim versions of code contributed to Linux, with respect to all of IBM's Linux contributions to the present.

SCO's Motion is supported by the Memorandum in Support of Plaintiff's Renewed Motion to Compel submitted concurrently herewith.

SCO respectfully requests that the Court hear oral argument on this Motion.

DATED this 2nd day of September, 2005.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER, L.L.P.
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By (signature of Brent Hatch)

Counsel for The SCO Group, Inc.


  1. SCO brings this motion after the Court's August 1, 2005 deadline for IBM to produce all required documents, and after having reviewed IBM's production to date at length for any Linux-contribution development information. In light of the impending fact-discovery deadline, SCO has also served IBM with SCO's Seventh Request for Production of Documents, which seeks in extremely specific language the same Linux-development information at issue in this Motion. While SCO has served the request out of an abundance of caution, SCO believes (as explained in this brief) that the materials at issue have already been requested by SCO and ordered by the Court.

    (Back to the main text)

3

CERTIFICATION OF COMPLIANCE WITH MEET AND CONFER OBLIGATIONS

SCO counsel has made a good-faith effort to reach an agreement with IBM counsel on the matters set forth in this Motion. In addition to SCO's numerous attempts to reach an agreement before filing its previous discovery motions, just days before the Court-imposed deadline for IBM's complete production, in response to a letter from SCO counsel Edward Normand regarding the insufficiency of IBM's production, IBM confirmed its view that it has produced all the "non-public Linux contribution information" it is obligated to produce. See Letter dated July 19, 2005 from T. Shaughnessy to B. Hatch, at 1 (Exh. 1). In addition, on August 22, 2005, counsel for SCO specifically informed counsel for IBM of SCO's view that IBM is obligated to produce the information sought herein and asked whether IBM would produce that information. In response, IBM eventually declined to produce the information, both in writing, see Letter dated August 30, 2005, from T. Shaughnessy to E. Normand (Exh. 2), and during a teleconference with counsel for SCO on September 1, 2005.

DATED this 2nd day of September, 2005.

Respectfully submitted,

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER, L.L.P.
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand

By (signature of Brent Hatch)

Counsel for The SCO Group, Inc.

4

CERTIFICATE OF SERVICE

I hereby certifies that a true and correct copy of the foregoing Plaintiff's Renewed Motion to Compel was served by U.S. mail or hand delivery on Defendant International Business Machines Corporation on the 6th day of September, 2005:

By U.S. Mail:

David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

By Hand Delivery:

Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]

(signature)

5

EXHIBIT 1

6

(Snell & Wilmer letterhead)

July 19, 2005

VIA FACSIMILE AND U.S. MAIL

Brent O. Hatch
HATCH, JAMES & DODGE, P.C.
[address]

Re: SCO v. IBM; IBM v. SCO

Dear Brent:

I write in response to Ted Normand's July 14, 2005 letter to David Marriott.

First, Ted's concern that IBM has withheld pre-1991 AIX source code is unfounded. To the extent there is AIX source code in CMVC that was written prior to 1991 and maintained in CMVC, we have produced it. We have repeatedly searched for, but have been unable to find, any pre-1991 AIX source code or revision control information other than that which may be in CMVC. Please provide us with the basis for Ted's statement: "Our information is that IBM does possess the source code for all versions of AIX prior to 1991". If you have any specific information about where source code for versions of AIX prior to 1991 are located within IBM, let us know and we will follow up on it.

Second, with respect to IBM's Linux contributions, the Court expressly ruled in an Order dated March 3, 2004 (and reaffirmed in its April 19, 2005 Order) that IBM is not required to produce to SCO information concerning IBM's Linux contributions insofar as such information is publicly available. The Court only ordered IBM to produce "all non-public Linux contribution information". (April 19, 2005 Order at 5-6.) As detailed in Peter Ligh's July 5 letter to Ted, IBM has fully complied with that obligation.

The issues you raise under the headings of "Approximately 245,325 Missing Files", "Approximately 152,887 Un-Catalogued Files", and "Removal of CMVC Change-Log History" require more investigation and analysis. Because some of the people at IBM who were involved in preparing the CMVC data for production to SCO several months ago are currently on vacation, I am unable to provide a response to those issues at this time. We will provide you with responses to those issues as soon as we can.

7

Very truly yours,

(signature of Todd Shaugnessy)
Todd M. Shaughnessy

TMS:dw
cc: Edward Normand
David Marriott
Peter Ligh
Amy Sorenson

8

EXHIBIT 2

9

(Snell & Wilmer letterhead)

August 30, 2005

VIA FACSIMILE AND U.S. MAIL

Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

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 would have been posted there were instead posted on other, project-specific (and publicly accessible) websites. Of course, all of IBM's Linux contributions are by nature publicly 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 reasonably 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. Notwithstanding 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,

(signature of Todd Shaughnessy)
Todd M. Shaughnessy

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

10


  


SCO's Just in Case Motion to Compel - as text | 147 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Please
Authored by: geoff lane on Saturday, September 10 2005 @ 12:46 PM EDT
In the rare event that something needs to be corrected...

---
I'm not a Windows user, consequently I'm not
afraid of receiving email from total strangers.

[ Reply to This | # ]

Off Topic (OT) Please
Authored by: geoff lane on Saturday, September 10 2005 @ 12:48 PM EDT
Anything interesting happened today?

Note the instructions on the Post a Comment page on using HTML.

---
I'm not a Windows user, consequently I'm not
afraid of receiving email from total strangers.

[ Reply to This | # ]

Filing aimed at the peanut gallery? - n/t
Authored by: Anonymous on Saturday, September 10 2005 @ 01:09 PM EDT
Tufty

[ Reply to This | # ]

Round and round, to the end of time
Authored by: Chris Lingard on Saturday, September 10 2005 @ 01:49 PM EDT

Round and round it goes. They did this about two years ago. Where are the non public contributions to Linux? It fooled the magistrate judge the first time that it was mentioned. IBM pointed out that all of Linux is public knowledge; there are no secret contributions.

This has now degenerated into a farce. After 2 1/2 years SCO demand secret Linux code again. Linux code has always been publicly available. They must know this.

Justice has died in the USA. Your court system is now like a Hollywood horror movie; where any fiction can be introduced into the script; and the indestructible monster just keeps coming. Lawyers are protected, and can say anything that they like; and charge their client a fortune for this. Surely it is time to add a bit of honesty or control into this. Or does it just go on for ever, round and round in circles?

[ Reply to This | # ]

SCO's Just in Case Motion to Compel - as text
Authored by: John Hasler on Saturday, September 10 2005 @ 01:55 PM EDT
> They are very bold, these lawyers, kind of like
> door-to-door salesmen who put their foot in the door so you
> can't slam it on them.

I had one do that to me once. He only limped a little as he scuttled back to
his car.

[ Reply to This | # ]

SCO's Just in Case Motion to Compel - as text
Authored by: Anonymous on Saturday, September 10 2005 @ 02:05 PM EDT
I have a friend who's winding up a divorce case. His wife retained a pit bull
of a lawyer. In fact, it's a reputation he cultivates. Locally, he is known as
the person who will lie, bully, and brute-force his way to getting as much as he
can for his clients. He employs scorched-earth tactics, and I'm certain he will
sell his mother if it meant winning a case.

I've seen him in and out of court, and quite honestly he deserves to go to the
deepest levels of hell, both for how he acts professionally and personally, and
for how he encourages his clients to exaggerate what everyone but the court
knows are trivialities and push the truth (and occasionally even cross that line
and flat-out LIE).

My friend, on the other hand, decided to take the ethical, high-minded route, so
as to spare his daughter the pain that a divorce can cause. It seemed he was
the only person sensitive to how all of this would affect a four-year-old. When
push came to shove, he didn't shove. When it came time for him to launch the
nukes, since his wife did first, he didn't do it. When he should have defended
himself aggressively, he wouldn't do it if it meant that his daughter had to see
mom and dad drag each other through the mud.

In the end, he got joint custody of his daughter, which he's happy about.
Indeed, at the time that was his primary goal.

However, regarding everything else, he got NOTHING. Less than nothing: his wife
got assigned all of the marital assets, and he got assigned most of the marital
debt. And alimony. And almost everything else his wife & her lawyer bullied
from him. He is essentially now an indentured servant, and he expects that the
court will soon mandate that he get a job that will pay what his wife thinks is
his "earning potential", solely so that he can pay his court-ordered
alimony.

So what does that have to do with anything in SCO v. IBM?

Well, it seems to me that IBM is in some way just like my friend. And SCO is
like his wife.

Of course, analogies always break down at some point, as it will here, but my
point is this: doesn't anyone else think that IBM has been just a little *too*
permissive and not aggressive enough? In the name of what? IBM has no
"daughter" to shield from the harshness of a court case. Unlike
family strife, this is BUSINESS. SCO's lawyers are put-bulls here. We all hope
they will fail, and that the rule of law and civil behavior will prevail. But
to me it seems that they've been much more successful to date than the should
ever have been.

As you can tell, I'm not a lawyer, and unfortunately I'm also quite cynical - I
think justice does not prevail enough in our courts.

[ Reply to This | # ]

SCO's Just in Case Motion to Compel - as text
Authored by: wvhillbilly on Saturday, September 10 2005 @ 02:06 PM EDT
Seems to me there's a couple of ways IBM could respond to this.

1) Ask the judge to stay further action on this case pending a decision in SCO v Novell, since Novell's suit has standing to determine ownership of the relevant copyrights. If SCO doesn't own the disputed copyrights, its case against IBM is moot.

2) Note that SCOG has been ordered twice by the court to show with specificity exactly what files and lines of IBM's code allegedly infringe SCOG's copyrights, and that to date they have refused to do so. Then ask the judge to stay further discovery in the case until SCOG fullfills their end of the bargain.

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

[ Reply to This | # ]

SCO's Just in Case Motion to Compel - as text
Authored by: JohnPettigrew on Saturday, September 10 2005 @ 02:20 PM EDT

My favourite bit was this:

"AIX and Dynix are themselves relevant to this litigation because they are stages in the development of Linux code. By ordering IBM to produce "all versions and changes to AIX and Dynix," January 18 Order at 9-10, the Court essentially ordered IBM to produce the development history for these interim stages in the development of Linux."

In other words, they are assuming as proven that Linux is a derivative of AIX and Dynix. But this is exactly what they're supposed to be proving in this case! They surely cannot use the argument that Linux is a derivative to force extra discovery, when that argument is what they're supposed to be proving!

pax et bonum

[ Reply to This | # ]

Linux Development Model - Not So Simple
Authored by: Anonymous on Saturday, September 10 2005 @ 02:40 PM EDT
While I agree that "non-public Linux contributions" doesn't make sense, I must disagree with the assertion that all of IBM's Linux kernel contributions can be found at kernel.org. There are many patches to the Linux kernel which never make it into the kernel proper. Some of these are just research patches, while others are works in progress that the developers don't feel are good enough to submit to the kernel maintainers yet.

As an example, even though it's not an IBM contribution: e2compr. It's a patch that adds transparent compression/decompression to the e2fs file system. In the FAQ, a question is, "Will e2compr be included into the vanilla kernel sources?"

It's structure is not really modular, and it needs some patches to other parts of the kernel. So it is not easy to get it included to the vanilla kernel in current state of developement. Maybe it will be completely written »from scratch« - of course using much code from current e2compr but not simply copying it. Maybe we try to modify current code to better fit the kernel coding guidelines. But a main plan of this project is to get compression extension into the vanilla sources - but we didn't set us any deadline for that (and in near future we will not set any deadline, too).

As another example, Red Hat routinely ships their distributions with kernels that have non-kernel.org patches applied to them. Some of those patches are developed in house (yes, they provide the source for all of them). It's entirely possible that IBM has Linux kernel code out in the public which does not reside on kernel.org.

Now a question for you lawyer types:
It's also possible that IBM employees have contributed code to the Linux kernel when they are off the clock (i.e. not at work). If (I'm not suggesting that they will) SCO were to win this motion, would that code fall in scope here? If so, any IBM employee could have made a contribution to Linux, and there's no way IBM could know. What if they fail to identify some of those employees? What if the employees themselves don't remember all of the contributions they have made over the years? (I know I don't remember all of the code I've written over the past 10 years)

Is there any case law that would help guide the judges here, or is this new territory?

[ Reply to This | # ]

SCO will continue stalling every way it can
Authored by: kawabago on Saturday, September 10 2005 @ 02:42 PM EDT
Until Novell is declared owner of the UNIX copyrights, then this will finally be
over for IBM.

---
TTFN

[ Reply to This | # ]

In short .....
Authored by: Anonymous on Saturday, September 10 2005 @ 02:48 PM EDT
Initially:
-------------
JUDGE: Okay SCO - you go first - show some evidence of infringement and I'll ask
IBM to produce AIX code

A little later:
---------------

SCO: We need AIX code - even to show that there was some infringement

IBM : Why do they need AIX? After all they have access to UNIX code and Linux to
figure what part of UNIX went to LINUX

JUDGE: Give them AIX / Dynix


And then
--------

SCO: They did not give us all of AIX / Dynix - we also need intermediate
releases ot trace development history - and the programmers notes, all emails
and anything else you can think of that could in any way be related (that is
when all the california to newyork roadmap came in)

JUDGE: Okay IBM, give them all that.


Now:
----
SCO: Oh, what about the same things we asked for AIX for IBMs linux
contributions? After all the case is about linux


Well if the case is about linux then there was no reason for SCO to dig into
AIX. the only reason they wanted to dig into all that is cos they thought they
could find a tenous route from UNIX - AIX - LINUX. Obviously they cant now they
just want to prolong this further and frustrate IBM as much as they can while
they are at it.


If the judge cannot see the pattern even now - god help us all.

Well we all know what the Judge should say - it is very clear that they did not
even ask for this earlier and obviously not granted by the judge. After all, we
all know that the only reason TSG asks for stuff from IBM is just to frustrate
IBM.

But going by history I'm not so sure what the judge is going to do



[ Reply to This | # ]

September 12 - SCO's deadline to respond to Novell
Authored by: Anonymous on Saturday, September 10 2005 @ 03:03 PM EDT
SCO's request for more discovery is par for the course. They are like a shark
which is still squiring on the spear used to catch it.

I expect IBM will respond bluntly, clearly and strongly to this request.

The October 28 deadline for SCO is looming in the horizon. SCO is trying to
squirm away from this as hard as it can.

However, for us, we have the September 12 deadline for SCO to reply to
Novell's crushing move.

The fireworks from Novell vs. SCO should be fun to watch!

[ Reply to This | # ]

SCO's Just in Case Motion to Compel - as text
Authored by: Nick_UK on Saturday, September 10 2005 @ 03:08 PM EDT
" All there is that is nonpublic might be a patch that wasn't accepted into Linux. Is IBM accused of infringement for patches that aren't even *in* Linux?"

Heh. Good one.

Nick

[ Reply to This | # ]

What SCO wants from this
Authored by: whoever57 on Saturday, September 10 2005 @ 03:09 PM EDT
What SCO wants is to have the Magistrate Judge essentially declare that Linux is
a derivative of AIX and/or Dynix.

I believe that this is what this whole motion is about.... to get the judge to
declare that Linux is a continuance of AIX and/or Dynix and thus a derivative
and thus (stretching things a lot) a contract and/or copyright violation.

Think of how SCO will spin this if the judge agrees and orders IBM to hand over
documents relating to Linux under the guise of intepreting the prior order
realting to AIX and Dynix.

[ Reply to This | # ]

A Zillion Dollars
Authored by: lsmft on Saturday, September 10 2005 @ 03:41 PM EDT
What if SCO is only asking for this stuff but not actually looking at any of
it.From what I gather it would take a Zillion dollars and a billion years (well
at least 25000) to actually go through the stuff that SCO has already asked for.
Is there any way for IBM to demand proof that SCO actually looks at this stuff
and doesn't just ask for it to yank ibm's chain?

[ Reply to This | # ]

judge wells' order is wack
Authored by: Anonymous on Saturday, September 10 2005 @ 04:06 PM EDT
she note a previous order that asks for "all non-public contributions to
linux", which is in itself a meaningless order, depending on how you define
contributions to linux. does it have to be included in a current or past dist.
to be a contribution, or did it just have to be offered? does it have to be
source code, or can it be oral communication?

then she herself seems to extend that order to mean all non-public
"contribution information", which is a completely different order. i
would think that it is general enough to cover from just roster names to all
corporate strategy, all programmer musings, all internal use, everything.

and that's wack. if that's what she ordered, she should have been made to define
it better.

[ Reply to This | # ]

No-one's mentioned JFS
Authored by: thorpie on Saturday, September 10 2005 @ 05:15 PM EDT

IKN, but JFS has always been said to be a large part of IBM's contribution to Linux. It is well known that this was developed as part of OS/2 and was ported to both AIX and Linux.

As part of SCO's "we own everything that has ever touched AIX mentality" JFS has been the point to watch.

IBM appears to have avoided giving SCO any files related to JFS. The reason/excuse IBM has not provided this, I assume, is because it was never a part of AIX development, so developer notes et al are not within the scope of the discovery order. And they managed to keep the Linux development notes excluded from the orders.

I take it that this is very good, and that IBM is pleased with themselves. By default, it seems to indicate that the case has already been restricted to exclude SCO's "we own everything that ever touched Linux" view.

Any clarifications welcome.

---
The memories of a man in his old age are the deeds of a man in his prime - Floyd, Pink

[ Reply to This | # ]

I do not see a problem
Authored by: Anonymous on Saturday, September 10 2005 @ 06:23 PM EDT
Judge Kimball knows that IBM is a company with large resources whose business
will not be inconvenienced by whatever requests for discovery he allows. IBM, of
course, will protest but he knows (as IBM knows) that it is just part of the
game. SCO is weak so he will not want to cause them damage. He is well aware
that if he acts wrongly and SCO needs to appeal, it will destroy SCO. (It goes
without saying that he would not want to act wrongly anyway.)

I am sure that if IBM had made unreasonable demands on SCO with the intention of
putting them out of business before the trial, his actions would have been quite
different.

As it is, he can allow SCO anything that they can give any justification for. If
SCO can find the evidence that they are looking for, then they are entitled to
their day in court. But if they fail to find anything, he will have every reason
not to allow the case to go before a jury.

The last thing he wants, is having to decide whether to allow a jury trial on
the basis of very weak evidence that SCO has a case, and at the same time,
having SCO protesting that IBM are withholding vital facts.

Obviously he needs to uphold the dignity of the court but, apart from minor
reprimands, I think he will save serious accusations of pejury until it becomes
necessary to avoid the outcome of the case being affected or until the case is
over.

If SCO had hard evidence before they brought the case, and pressed to have a
quick outcome, I am sure that Judge Kimball would have acted differently. As it
is, SCO is dragging things out and IBM are not worried by it, so that is setting
the pace.

At the moment the parties are only talking about evidence about evidence. Now is
not the time for judging the case, and anyway, the judge is not going to decide
the case itself on the basis of Darl's mouth problem; the evidence has got to be
presented first.

I have no worries about the way things are going.

Alan(UK)

[ Reply to This | # ]

Bottom line, gut check answer
Authored by: Anonymous on Saturday, September 10 2005 @ 07:36 PM EDT
Will the Judge grant this order or no?

[ Reply to This | # ]

Memorandum In Support Transcribed
Authored by: Steve Martin on Saturday, September 10 2005 @ 08:12 PM EDT
and shipped to PJ.


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

[ Reply to This | # ]

Once again, stridently
Authored by: inode_buddha on Saturday, September 10 2005 @ 10:37 PM EDT
Once again, stridently and vigorously with the clue-bat:

THERE IS NO SUCH THING AS A NON-PUBLIC CONTRIBUTION !

---
-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 | # ]

Why doesn't IBM ask for all of SCO's...
Authored by: Anonymous on Sunday, September 11 2005 @ 07:43 PM EDT
Why doesn't IBM ask for all of SCO's contribution to Linux, when they were
Caldera and later the SCO Group.

[ Reply to This | # ]

Why I'm not a lawyer
Authored by: Sgt_Jake on Monday, September 12 2005 @ 11:53 AM EDT
If I worked for IBM, I'd just reply "Denied." and let them figure out
what I meant.

[ Reply to This | # ]

What is scox looking for?
Authored by: Anonymous on Tuesday, September 13 2005 @ 01:16 AM EDT

I think that discovery should be granted when there is a reasonable chance of
actually finding anything.

What infringing code will scox find in 20 year old AIX, that doesn't exist in 5
year old AIX?

Shouldn't it first be established if scox even owns the rights to 20 year old
AIX?

Besides, scox is claiming that SysV is Linux, right? Scox already has Sys V and
Linux source code. What more could they possibly need?



[ Reply to This | # ]

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