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SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Sunday, November 06 2005 @ 09:26 PM EST

The supremely funny SCO Group has now topped even itself. They have asked IBM to turn over "all documents concerning IBM's contributions to the Linux 2.7 kernel," including "development work."

There is no Linux 2.7 kernel.

Please, please, please, let SCO ask the court to sanction IBM for refusing to hand over the 2.7 materials. Pretty please?

Linux 2.7 not only doesn't exist, there are no current plans to have one. Happily for Linux, the Dark Side is dumb as a rock when it comes to tech, and they never accept any hints, and so now they have put their feet firmly in quicksand in this SCO's Objection to the Magistrate Court's Order of October 12, 2005 [PDF] and the Memorandum in Support [PDF]. We can thank Groklaw's Laomedon for doing the text for us.

Here's the part the court won't find funny. As IBM pointed out at the hearing on October 7, the discovery protocol Judge Brooke Wells set forth is supposed to go like this:

  • SCO tells IBM what code they believe they have rights to in Linux and how IBM misused it;
  • IBM provides discovery regarding that allegedly infringed code.
Here we have SCO asking for materials regarding a nonexistent Linux kernel. On what basis are they making the request? On the basis that they have some information that IBM has infringed their code? Do tell us, SCO, do, what code in Linux 2.7 you have rights to and precisely how IBM has infringed it, won't you, please? We are all ears. You'll have to speak up, though, because we are laughing so hard, we won't be able to hear you if you mumble.

Of course, they can't provide any such list, since there is no Linux 2.7. So, class: is SCO following the discovery protocol? Do they even try? Do they have a case? Do they have a right to any discovery if they are just making things up based on nothing? I'm afraid SCO has been caught with their pants down.

Here, in this Objection, SCO -- oblivious of its blunder -- presses, once again, to get every scrap of paper about Linux in all of IBM since the beginning of time. They argue that while they asked for it in the October 7th hearing on the last motion, which Judge Wells denied, the judge never ruled on the issue of whether it should now be supplied, only on the issue of whether IBM had ever agreed to turn all the Linux materials over. In short, SCO tried to blarney the court, so it could bad mouth IBM and try for sanctions if the judge had a bad day and rubber stamped their attempt. When she didn't, and they lost the motion, they swing back around like a shark, trying for the same materials via a different angle. And then their pants fell down.

That is the thing about being phony. Sooner or later, you get found out.

The problem they have is that IBM has already pointed out that the court's protocol for discovery is supposed to be that SCO tells everyone what code is allegedly infringed, then IBM turns over materials relevant to that issue. I assume IBM will stand on that dime and merriment will ensue.

At the hearing on October 7, SCO, when pressed, argued that they would be presenting that evidence by the interim deadline on October 28 and then finally by December 22 at the final deadline. It was an extraordinary argument, because in essence their position is that they don't have to tell IBM what the case is about until fact discovery is about over. I can't express how upside down that is. They are probably high-fiving each other that they got away with it, but IBM's reaction tells me that they don't much care, that no matter what they turn over, there is nothing to worry about from their perspective. I hope they listed infringing code in Linux 2.7.

So, it depends now on what SCO filed, I would guess, regarding earlier kernels. If they didn't file enough to give anyone a clue, as usual, then they probably won't prevail in their current demands. If they listed 2.7, they are doomed. Even if they didn't, the fact that they even asked the court for it ought to tell the court everything they need to know about how valid, or not, SCO's discovery requests really are.

I understand now why they filed the exhibits listing the allegedly infringing code under seal. I thought it was silly, since Linux is written in public. But their strategy may be to keep the Linux community in the dark, so their claims can't get shot down before the judge rules. She might not know there is no Linux 2.7 kernel.

It's mighty sad if they have such a thin case their only hope is blarney. I hope IBM holds them to the discovery protocol, because it's my view that they are angling for discovery in the hopes that they will stumble onto something to build a case with, as opposed to what is normal in litigation, where you ask for discovery to focus and prove the case you brought when you filed your complaint. Nothing SCO has done reveals the phoniness of their alleged need for this discovery material so much as this incredible blooper. SCO appears to be just winging it, hoping some plum will fall in their lap, and changing what it's all about over and over.

I do hope it is all about Linux 2.7 now. That would be the perfect ending to the stupidest lawsuit in the history of the world.

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

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 DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

OBJECTION TO THE MAGISTRATE
COURT'S ORDER OF OCTOBER 12,
2005


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

Plaintiff, The SCO Group, Inc., pursuant to Federal Rule of Civil Procedure 72(a), respectfully files this Objection to the Magistrate Court's Order of October 12, 2005. This Objection is supported by the memorandum filed concurrently herewith.

DATED this 27th day of October, 2005.

Respectfully submitted,

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Edward Normand

By: ___[signature]____

Counsel for The SCO Group, Inc.

2

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Objection to the Magistrate Court's Order of October 12, 2005, was served on Defendant International Business Machines Corporation on the 27th day of October, 2005:

By U.S. Mail and Facsimile:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

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

___[signature]____

3

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

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 DISTRICT COURT

FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.

Plaintiff/Counterclaim Defendant,

v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

MEMORANDUM IN SUPPORT OF
SCO'S OBJECTION TO THE
MAGISTRATE COURT'S ORDER OF
OCTOBER 12, 2005


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

SCO respectfully submits this memorandum in support of its Objection to the Magistrate Court's Order of October 12, 2005 (the "October 12 Order").

PRELIMINARY STATEMENT

In its Renewed Motion to Compel dated September 6, 2005 (the "Renewed Motion"), and during oral argument on the Renewed Motion on October 7, 2005, SCO argued that the Magistrate Court should order IBM to produce Linux development materials that SCO has sought since June 2003, because (1) in SCO's view, the Magistrate Court had previously ordered IBM to produce them, and (2) if the Magistrate Court had not so ordered, it should do so now, as the requested materials were plainly relevant and not unduly burdensome for IBM to produce.1 In denying the Renewed Motion, the Court concluded that it had not previously ordered IBM to produce the requested materials, but did not address SCO's argument that the Court should now order IBM to produce them. SCO asks this Court to issue such an order.

BACKGROUND

At the October 7 hearing, the Court expressed concern that the parties had not asked for clarification of its prior orders. In its opposition to IBM's motion for reconsideration of the Magistrate Court's Order of January 18, 2005, however, SCO specifically argued that IBM sought to modify the January 18 Order by refusing to produce its non-public Linux development materials. SCO Opp. to IBM Motion for Reconsideration of the Court's January 18 Order at 9 n.4. In its Order dated April 19, 2005, denying IBM's motion for reconsideration, the Magistrate

2

Court acknowledged that SCO had raised the issue, but deferred ruling on the issue until IBM's production deadline had passed:

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. 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.

April 19 Order at 5 (citation omitted). Based on this language, SCO waited to file the Renewed Motion until after August 1, 2005 (the deadline for IBM to complete its production of required documents). IBM openly acknowledges that it possesses hundreds of thousands of responsive documents relating to the development of contributions that IBM has made to Linux. See IBM Opp. to SCO's Renewed Motion at 12-13, 15-16; Decl. of Daniel Frye (9/26/05) ¶¶ 6-10.

SCO devoted a section of its memorandum in support of the Renewed Motion to reviewing its previous requests for Linux development material, including through SCO's Request Nos. 11 and 35. SCO Mem. at 4-5. During the October 7 hearing, counsel for SCO explained the relevance of IBM's objections to SCO's recent Seventh Request for the Production of Documents. In the Seventh Request, SCO seeks in great detail the material requested in Request Nos. 11, 35, and 42. IBM repeatedly objected to the requests on the grounds that they were "duplicative" of Request Nos. 11 and 35. Counsel for SCO explained how IBM had thus acknowledged that SCO had already requested the Linux development materials:

The argument we submit is that this was within the scope of what was agreed to be produced as reflected in the objections to the Seventh request where IBM said, what you're asking for now is included in the scope of Request 35. They can't have it both ways. They can't say, you didn't request this, it's not related to Linux contribution; and then say we are duplicating an earlier request.

3

October 7 Hr'g Tr. at 55. Counsel for SCO then set forth the alternative argument supporting an order compelling IBM to produce the requested materials:

So in our view, Your Honor, the Court should either find that this information was called for or should clearly find it's relevant.

Id. Immediately thereafter, counsel explained why it would not be unduly burdensome for IBM to produce those materials. Id. SCO thus argued in the alternative that the Magistrate Court should order IBM to produce those materials because SCO had requested them and they were relevant and not unduly burdensome to produce. The Magistrate Court did not address SCO's alternative argument.

Concurrent with this Objection, SCO has filed a motion to compel IBM to produce the non-public Linux development material. Given the impending end of fact discovery and the overlap of the issues in the two courts, the relief SCO seeks in the motion to compel is the same relief SCO seeks in this Objection.

ARGUMENT

SCO asks this Court to order IBM to produce its non-public Linux development materials responsive to SCO's Document Request Nos. 11, 35, and 42, as set out in more detail in Requests Nos. 300-65 in SCO's Seventh Request for the Production of Documents. SCO submits that this Court should enter such an order for several reasons:

First, the documents SCO seeks are plainly relevant. SCO seeks materials such as the programmer's notes, design documents, white papers, comments, and interim versions of code that IBM's Linux developers generated in developing and making contributions of source code to Linux. Such materials are essential to SCO's analysis of the technology (including code, methods, and concepts) relied upon by those programmers when they developed those

4

contributions. In proving its contract, copyright, and tort claims, SCO will demonstrate that IBM improperly relied on SCO's technology in contributing to Linux.

Second, the Magistrate Court itself has made clear that the documents SCO seeks are relevant. The Magistrate Court previously ordered IBM to produce programmer's notes, design documents, white papers, and comments that IBM developers generated in developing AIX and Dynix/ptx, January 18 Order at 9-10, as well as all source code for those operating systems, id. at 15. In ordering such materials, the Magistrate Court reasoned that "these materials are relevant because they may contain information regarding the use or alleged misuse of source code by IBM in its contributions to Linux." Order dated March 3, 2004, at 5; see also January 18 Order at 9, 15.2 That exact same reasoning applies to the Linux development materials that SCO now seeks. It is incongruous that IBM should have to produce its AIX and Dynix source code and development materials, but not source code and development materials for the very contributions to Linux at the heart of this case.

Third, the relief that SCO seeks follows from the Magistrate Court's discovery orders. In its October 12 Order, the Magistrate Court ordered IBM to produce its "non-public" Linux contributions and the "non-public" Linux development materials for twenty developers identified by SCO. That is, although IBM opposed the Renewed Motion on the grounds that the documents SCO sought are allegedly irrelevant, IBM nevertheless volunteered to produce the non-public Linux development materials from the files of twenty IBM Linux developers identified by SCO. IBM's offer was an obvious acknowledgment of the relevance of such

5

materials. SCO now asks this Court to order IBM to produce the same Linux development materials for the remaining IBM Linux developers, which, according to IBM, exceed 250. From the outset of this litigation, SCO requested those materials as substantial evidence of the technology on which IBM relied in making its Linux contributions through its hundreds of Linux developers.

Fourth, SCO's document requests do not impose undue burden on IBM. Presumably, IBM's Linux developers know best what responsive documents reside in their respective files and "sandboxes. 3 IBM would simply direct those developers to gather such documents and then review the accumulated materials for privilege. The materials produced would not differ in kind or volume from those the parties have already provided in discovery. IBM's response to SCO's Seventh Request, as noted above, underscores the propriety of the relief that SCO seeks. 4 In an abundance of caution, this summer SCO again and very specifically asked IBM to produce all documents concerning IBM's contributions to Linux and development work for those contributions. SCO requested for example:

  • "All documents concerning IBM's contributions to" ten specific Linux projects, including "development work," and "all documents concerning contributions to Linux" through several additional specific Linux projects.
  • "All documents concerning IBM's contributions to the Linux 2.7 kernel," including "development work."

6

  • "All documents concerning IBM's contributions to any development tree for Linux," including the "development trees" themselves.

SCO's Seventh Request for Production of Documents at 7-14. In response to each of the foregoing requests, and many other similar requests, IBM made the following objection: "IBM further objects to this Request insofar as it is duplicative of SCO's earlier document requests, including Request Nos. 11 and 35." IBM's Responses and Objections to SCO's Seventh Request for the Production of Documents (emphasis added). Yet, in response to Request Nos. 11 and 35, IBM has not produced the Linux development materials that SCO sought in the Renewed Motion and seeks in this objection. IBM cannot say on the one hand that SCO never requested the materials, and then say on the other that it is not now obligated to produce them because SCO's new requests are duplicative. The Court should not permit IBM to have it both ways.

In sum, in light of the plainly relevant nature of the Linux development materials at issue, the express rationale for the Magistrate Court's prior discovery orders, and the absence of any undue burden on IBM, this Court should require IBM to produce those materials.

CONCLUSION

SCO respectfully requests for the foregoing reasons that this Court order IBM to produce the non-public Linux development materials that SCO has long sought, originally in Request Nos. 11, 35, and 42, and more recently in Request Nos. 300-65.

7

DATED this 27th day of October, 2005.
Respectfully submitted,

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

BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Edward Normand

By: ___[signature]____

Counsel for The SCO Group, Inc.

8

1SCO also argued that IBM had agreed to produce "documents that relate to IBM's open-source contributions to Linux." Letter dated September 15, 2003, from T. Shaughnessy to M. Heise. The Magistrate Court found that IBM did not agree to produce "all documents relating to the development of Linux." October 12 Order at 3.

2In its Order dated February 8, 2005, this Court agreed "with the conclusions reached by the Magistrate Judge in her Order Pertaining to SCO's Renewed Motion to Compel, dated January 18, 2005." February 8 Order at 11 n.6.

3A developer's "sandbox" is a process confinement environment or contained operating environment, such as a computer hard drive, that a programmer or developer uses for developing and testing source code, applications, security measures, and the like, and that may contain materials such as interim or draft versions of source code which are not yet ready for release or contribution, programmer's notes, white papers, design documents, and the like.

4 SCO specifically referenced those responses in argument to the Magistrate Court on SCO's Renewed Motion to Compel. October 7 Hr'g Tr, at 55.

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing Memorandum in Support of SCO's Objection to the Magistrate Court's Order of October 12, 2005, was served on Defendant International Business Machines Corporation on the 27th day of October, 2005:

By U.S. Mail and Facsimile:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg, Esq.
[address]

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

___[signature]____

9


  


SCO's Objection to Wells' Discovery Order and Memo in Support - as text | 532 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Steve Martin on Sunday, November 06 2005 @ 09:46 PM EST
Um, I hate to inject a note of skepticism here, but is it possible we're just
gloating over a simple typo? If TSG had asked for "Linux 2.7" material
in a number of places, I'd say yep, it's stupidity / incompetence / (insert your
favorite derogatory description here). It's just one mention, though, so I have
to think it's just a case of some clerk at Hatch, James & Dodge hitting the
"7" key rather than the "6" key. (Of course, one would think
Brent Hatch would have read it before he signed and filed it ...)


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

[ Reply to This | # ]

Corrections here please
Authored by: Rasyr on Sunday, November 06 2005 @ 09:51 PM EST
Break out those spelling dictionaries! :)

[ Reply to This | # ]

Recent eWeek article on the 2.7 Kernel
Authored by: Mecha on Sunday, November 06 2005 @ 09:58 PM EST
eWeek Article - Aug 9, 2005

The rapid pace of Linux development appeared to hit a roadblock last year with the industry's decision to forestall development of the Linux 2.7 kernel. Linux vendors and developers wondered if tweaking a single, stable 2.6 kernel could work in practice.

And what Linus had to say:

"I'm certainly pleased, and judging from the reactions we had at the Linux Kernel Summit in Ottawa a few weeks ago, most everybody else is too," Linus Torvalds, the founder of the Linux operating system, told eWEEK.

The biggest advantage of staying with 2.6.x was that developers do not have two different trees between which they need to port patches, which makes them happy, he said.

---
** This is my signature and I happen to like it **

[ Reply to This | # ]

Linux 2.7 infringes...
Authored by: Anonymous on Sunday, November 06 2005 @ 10:04 PM EST
Yes, your honor. The fact that the Linux 2.7 kernel does not exist has not
prevented IBM and Communist Linux contributors from including secret UNIX
methods and concepts in it.
In fact our patented "software comparison tool" shows there is 699%
more stolen UNIX in Linux 2.7 than all other kernels combined.
That is right. When absolutely no files are compared against the UNIX source
code with our patented software more violations are found than ever before...

:)

---
Are you a bagel or a mous?

[ Reply to This | # ]

SCO is locked into an infinite loop ----
Authored by: Anonymous on Sunday, November 06 2005 @ 10:19 PM EST
with their discovery efforts. I suggest they need a hard boot to get out of the
loop!!

Don K.

CS Student and olde mainframe programmer.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Sunday, November 06 2005 @ 10:21 PM EST
You know the scoop. Links in HTML please.

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Anonymous on Sunday, November 06 2005 @ 10:34 PM EST
Does not having a 2.7 kernel mean there wasn't any code written for it?

[ Reply to This | # ]

  • Yup. - Authored by: Mecha on Sunday, November 06 2005 @ 10:47 PM EST
    • Yup. - Authored by: bcomber on Monday, November 07 2005 @ 04:26 AM EST
SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Anonymous on Sunday, November 06 2005 @ 10:45 PM EST
eWeek put out an article some time ago discussing the 2.7 kernel and SCO
probably took it as fact and ran with it. It's more of a Christmas wish list
than anything else.

[ Reply to This | # ]

Dyslexia?
Authored by: thyrsus on Sunday, November 06 2005 @ 10:47 PM EST
Could this have been a dyslectic attempt to name the Red Hat 7.2 distrubution?
So of course, all the user space code becomes a matter of dispute, as well.

[ Reply to This | # ]

The numerosity and severiosity of SCO's mistakes is shockifying
Authored by: Anonymous on Sunday, November 06 2005 @ 10:50 PM EST

[ Reply to This | # ]

For Convenience - Rule 72(a) Authority/Procedure for Objection to the Magistrate Order
Authored by: webster on Sunday, November 06 2005 @ 11:19 PM EST


Rule 72. Magistrate Judges; Pretrial Orders
(a) Nondispositive Matters.

A magistrate judge to whom a pretrial matter not dispositive of a claim or
defense of a party is referred to hear and determine shall promptly conduct such
proceedings as are required and when appropriate enter into the record a written
order setting forth the disposition of the matter. Within 10 days after being
served with a copy of the magistrate judge's order, a party may serve and file
objections to the order; a party may not thereafter assign as error a defect in
the magistrate judge's order to which objection was not timely made. The
district judge to whom the case is assigned shall consider such objections and
shall modify or set aside any portion of the magistrate judge's order found to
be clearly erroneous or contrary to law.
* * ** **

[So Kimball himself must review Wells October 12 Order. She came prepared. She
Ruled from the bench, so she was confident. I suspect she may have discussed it
before the hearing with Kimball so the Objection won't fly. If she didn't
confer with Kimball, the ruling is still based on her own interpretation of her
own previous orders, a pretty sound record. PJ's image of the relentless
zombies is apt. The Judges may cave to an extent to make them stop and go away.


But they will never stop until they must answer to IBM's 13. Unlucky for them.
They can't show their authority to the code they claim: Copyrights are left out
of their acquisition contract; Novell did not give them full rights; the code is
compromised by prior lawsuits; it is public code with hardly any secrets and
long-published principles, concepts and methods; some is open, some is old; it
would be hard to steal this code; they don't know what they have. They can't
show infringement of their dubious code despite continuous open access to the
Linux process and code. Indeed they had their own Linux distribution. The SCO
schemers will eventually have to answer up. There will be two answers,
Ignorance and Fraud.]

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

IBM still retained the license to the code in Linux?
Authored by: WindowDeveloper on Sunday, November 06 2005 @ 11:39 PM EST
FIRST IANAL, these are merely my musings!!

I am sure that other people have covered this very well.

While I may not completely understand this but it appears to me that IBM
retained the rights to the code it contributed, licensed it for free, and
released the code as part of it's compliance with the license that it had
entered into with regards to Linux.

This license would be the GPL.

Even if SCO could get past all the other things they would still have to show
how IBM, having entered into a license that said that they would have to show
the code that they wrote for parts of the project (while IBM still retained the
rights to the code) that conflicted with the license IBM had.

If SCO wins this case, than Microsoft would be open to a lawsuit under the same
exact argument. Because Microsoft has shown it's code to certain of it's
clients.

If SCO and it's attornies gets sanctioned BIG then this won't happen, otherwise
it could.

Actually it could happen to any software developer anywhere.

It's just that Microsoft has more money, so if you wrote software that Microsoft
may have gotten the code for you could possibly file the same suit as SCO, and
demand the same discovery.

Of course, I haven't published any code, but companies that have (i.e. college
textbook companies) have, and that copy may have been copied into some Microsoft
code.



What I am saying is that if Microsoft has any code derived from any IBM license,
under SCO's theory, IBM could sue Microsoft for anything, just as SCO sued IBM,
and collect the same damages.

The amazing thing is that IBM probably has a stronger case than SCO does, for
any code that IBM may have licensed to Microsoft, that Microsoft shared with any
third party for any reason without the express consent.

SCO has written a roadmap to frivolous lawsuits, well not frivolous, but
basically they opened the door to suing any past licensee of your code for any
imagined infringment and forcing them to comply with any crazy discovery.

All without having to
a) prove that you have any clear title to anything you are claiming ownership
of.
OR
b) point out anything that is specifically derived from what you purportedly own
(and not derived from some other source under a license that would allow for the
free use of such under certain conditions, which you yourself don't follow).

And this is before the great glut of patents on ideas being applied for and
granted.

I thought the Patent for ISNOT was bad enough, now we are going even further
into wonderland.

Unless the courts slap SCO hard on this one the next case is going to be even
worse, and Microsoft could find itself hit harder, since there is more argument
for the kind of discovery that was ordered in the SCO v IBM case (since it
involved publicly available materials, and Microsoft does not provide access to
the source code to all it's clients, but only certain partners).

Let me be clear on this, Microsoft may have disclosed "Methods and
Concepts",and shared actual code that it had licensed with third parties.

If SCO's arguments have any merits (and they must because they survived summary
judgement) at any point any company that had licensed any substantial code to
Microsoft (or any company claiming to be a successor in intrest, regardless of
whether they can prove it) can force Microsoft into the same litigation that SCO
has been forcing it's alleged licensee's through.

Even more, since Microsoft is closed source, anyone who published any publiclly
available source code, or wrote any signifigant source code or holds, or
purports to hold such licenses either in whole or in part, or is a shareholder
in such a company could launch a similar suit as SCO's and not have to write one
brief, they could just copy this stuff, and as long as they remember to change
the names, could sue Microsoft in any jurisdiction that Microsoft does business
in.

[ Reply to This | # ]

IBM has in fact already complied ...
Authored by: Anonymous on Sunday, November 06 2005 @ 11:52 PM EST
Surely I'm not the only logician in the crowd here:

If I were IBM I would simply point out that in fact they have turned over each and every contribution they have ever made to the Linux 2.7 kernel, including, without limitation, all "development work", "development trees" and so on.

The fact that this is a null set does not affect its completeness.

J

[ Reply to This | # ]

The root of the scam
Authored by: Anonymous on Monday, November 07 2005 @ 12:00 AM EST
Do I understand correctly that this whole scam was founded on the idea that a
program, written by an "MIT grad" (bfd), uses "patent-pending
technology" to do a glorified binary diff looking for "similarly
compiled code"? When any competent developer would know that there is a
lot of programming idioms that ANY C developer is going to use are going to show
up as "matches"?

If so, that is rediculous, and hardly merits the basis to begin discovery of
this sort.

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: nola on Monday, November 07 2005 @ 12:18 AM EST
My guess is that MOG was reading eWeek, and SCO picked it up as gospel.
After all, why not?

You would have thought that by now SCO, of all companies, would have
learned what to and what not to trust in media stories. But you'd be wrong :)

[ Reply to This | # ]

SCO's new strategy for infinite delay
Authored by: dcf on Monday, November 07 2005 @ 12:27 AM EST
In its Renewed Motion to Compel dated November 10, 2005 (the "Renewed
Motion"), and during oral argument on the Renewed Motion on November 15,
2005, SCO argues that the Magistrate Court should order IBM to produce Linux
development materials that SCO has sought since June 2003, including but not
limited to all public and non-public contributions, past and future, to all
future versions of the Linux kernel, together with the names of all IBM
programmars who will contribute to any future versions of Linux, either during
or after their employment at IBM, together with their current and future contact
information.

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: mrcreosote on Monday, November 07 2005 @ 12:34 AM EST
IBM should just send them a blank CD labelled 'IBM contributions to Linux 2.7',
then sit back and see how long it takes SCOG to complain to the judge because
they are unable to read anything off it.

---
----------
mrcreosote

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Flower on Monday, November 07 2005 @ 01:01 AM EST
Here is a good article about the current way the kernel is being developed and what would have to happen for a 2.7 version to be produced.

---
You make me out to be responsible for your self-inflicted misery. - "Faceless" Godsmack

[ Reply to This | # ]

It all makes sense now!
Authored by: Anonymous on Monday, November 07 2005 @ 01:11 AM EST
Remember when Linus said that Linux was written by Santa Claus? Well, there you
have it folks - Xmas is coming and that must mean we're up for the 2.7 release.
SCO, having all the inside info, were the first to know.

This new release, as we all know, is a complete an utter ripoff of SCO
OpenServer, UnixWare, Solaris, HP-UX, Digital Unix, AIX and all other variants
to which SCO hold copyright, patent, trade secret, trade mark, story line patent
(TM) and any other intellectual property claim known (and unknown) to mankind.

We have been exposed ;-)

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Anonymous on Monday, November 07 2005 @ 02:36 AM EST
Can they elaborate ?
I not sure they mean the 2.7 branch that is optimized for the 196BIT Pentium
IXXVM Optical quantum Qubit Processor OR the Special 2.7 devel Skynet Ultra AI
edition that needs a minimal systems with 52416 Main dualcores @ 7.23Ghz and
needs to be cooled with the blood of virgins ?

We at bizarroLinux Would really like this cleared up .
As soon as it is the People at Insanely Bizarro Machines will comply.

Retep Vosnul

[ Reply to This | # ]

  • Typoe? - Authored by: Anonymous on Monday, November 07 2005 @ 06:33 AM EST
    • Typoe? - Authored by: Anonymous on Monday, November 07 2005 @ 07:08 AM EST
It seems that SCO wins after all
Authored by: graybeard on Monday, November 07 2005 @ 03:28 AM EST
Linux kernel 2.7 - no content.

SCO's list of (valid) code infringements - nought.

Bingo! perfect match. SCO were right after all.

[ Reply to This | # ]

6 March 2003. A point of law
Authored by: Chris Lingard on Monday, November 07 2005 @ 04:29 AM EST

I am not a lawyer nor am I an American, so anybody like to comment on your law?

This case started on 6 March 2003; that is the court's date stamp on the original filing IBM-1-A.pdf. As far as I know, you cannot sue someone for something that has not happened yet.

On the above date the Linux versions were 2.0.39, 2.4.20 and 2.5.64. Linux 2.6.0 was not released until 17 December 2003.

Any evidence should precede 6 March 2003, so any facts after this date are irrelevant. So discovery of anything after this date should not be allowed.

[ Reply to This | # ]

I can't wait...
Authored by: RedBarchetta on Monday, November 07 2005 @ 04:34 AM EST
...for SCOG to reveal their latest reason for suing IBM: future infringement!

Yes, the SCOG consulted well known psychics Sylvia Brown and John Edward, and both unanimously agreed that IBM will eventually infringe on SCOG's copyrights.

Being the thoughtful blokes they are, SCOG decided to sue now to save everyone some time ("just hand over the money and no-one gets sued").


---
"I never have frustrations. The reason is to wit: Of at first I don't succeed, I quit!" ~ Fyodor Dostoevsky (1821-1881)

[ Reply to This | # ]

It Makes Perfect Sense To Me :-)
Authored by: darkonc on Monday, November 07 2005 @ 04:55 AM EST
SCOG's contribution to the Unix codebase has, in fact been little more than Nothimg. The 2.7 Codebase, on the other hand consists of precisely Nothing -- or a little bit less than what SCOG has contributed to the Unix Codebase.

In other words, the Linux 2.7 Codebase is a proper subset of SCOG's UNIX contributions. As such the Nothing that is in the Linux 2.7 code base was clearly lifted from SCOG's almost-Nothing contributions to the Unix code base.

This, of course, places IBM's claims to have contributed "Nothing inapproprate" into Linux in a completely different light and, in fact, supports SCOG's contentions of inappropriate contributions into the Linux code base.

Unfortunately, SCO is also attempting to widen the Nothing contributions to include the Useless contrubutions by IBM such as the TR on Replacing Mouse Balls.   Don't ask me why.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

2.7 - you do not understand, I am afraid.
Authored by: troll on Monday, November 07 2005 @ 05:16 AM EST
By the time SCO expects/plans this case to finish, there will be 2.7 kernel
running only on very, very old computers forgotten somewhere in the basement.
Just like today there are some PDP11 still connected to the net. The rest of the
world will be using something like GNU Linux 4.11.12

So Linux 2.7 DOES make sense ;-)

Yours truly ...

[ Reply to This | # ]

Here's a link to linux 2.7
Authored by: Anonymous on Monday, November 07 2005 @ 05:36 AM EST
http://ftp.linux.org.uk/pub/linux/linux-2.7/

;-)

someone should TSG make aware of this...

[ Reply to This | # ]

The beginning of the time
Authored by: troll on Monday, November 07 2005 @ 05:45 AM EST
Quote
...presses, once again, to get every scrap of paper about Linux in all of IBM since the beginning of time

Well, The beginning of the time wasn't THAT long ago.
Any UNIX administrator will tell you exactly the second the time began on. No kidding. Just see man date
The time() function returns the value of time in seconds since 0 hours, 0 minutes, 0 seconds, January 1, 1970, Coordinated Universal Time. If an error occurs, time() returns the value (time_t)-1.
man page for time(3) on FreeBSD

also see
Wikipedia article

I just home SCO plans to conclude the case before January 19, 2038.
In other words I hope this case will finish before "the end of the time as we know it"
Because January 19, 2038 is the end of the time, as we know it. 1111111111111111111111111111111 seconds (in binary) since the beginning of the time

have a nice time

Yours truly ...

[ Reply to This | # ]

Judge might not know
Authored by: inode_buddha on Monday, November 07 2005 @ 06:20 AM EST
Bingo

---
-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 | # ]

Linux Kernel 2.7 - The Blepp's Briefcase Release
Authored by: om1er on Monday, November 07 2005 @ 07:54 AM EST
It is quite presumptious of me, since I've never contributed even a single
semi-colon to any Linux kernel, to propose the following. I believe this would
be in keeping with this whole FiaSCO, and with the humor of Linux development
and naming conventions.

There should never be a 2.7 branch of the Linux kernel that has any code in it.
In honor of Mr. Blepp, who claimed all of the infringing Linux code was in his
briefcase, the empty 2.7 branch can be labeled "The Blepp's Briefcase
Release."

That way, we can mark this time in history. In years to come, it will show at
what point SCO caused all of its trouble, and people will remember. And
chuckle. BWAAA-HAAAA-HAAAAA.

Or, am I being too snide?

[ Reply to This | # ]

you are all wrong
Authored by: Anonymous on Monday, November 07 2005 @ 08:39 AM EST
SCO: Your Honor, IBM refuses to produce discovery on 2.7 kernel
IBM: IBM doesn't have any discoverable material regarding 2.7 kernel
SCO: You see your Honor, they are flaunting your orders
IBM: But there is no such product, there is no 2.7 kernel
SCO: There is not 2.7 kernel because you don't want to produce discovery
material
IBM: We cannot ptoduce what doesn't exist
SCO: You see your Honor,IBM has it logic backward, If they produce the discovery
materials, then kernel 2.7 will exist.
Judge Wells: Hereby the court order that IBM produce all non-existing discovery
material for the non- existing kernel.
************
Didio, Lyons, Enderle:"Today was a great day for SCO in court where the
court order IBM to produc all discovery for something that doesn't exist. More
proof that IBM was hiding something"

[ Reply to This | # ]

Hey, I want my LINUX 2.7 tee shirt... (it would be a classic)!
Authored by: Anonymous on Monday, November 07 2005 @ 09:09 AM EST
I think that a LINUX 2.7 tee shirt would be a hit!

However, with the LINUX trademark issues needed to keep the LINUX brand from
being soiled and diluted... I went to the LINUX MARK INSTITUTE, An Oregon
Nonprofit Corporation,
site and got my answer on if a LINUX tee shirt was ok:

http://www.linuxmark.org/faq.html#What_is_fair_use

Q: "I am making T-shirts, mugs, etc. for sale, and I want to include the
"Linux" on them. Do I need a sublicense"?

A: "No, this is generally considered “fair use.” However, your goods still
need to attribute ownership of the Linux mark to Linus Torvalds. For more
information on attribution, follow the “Trademark Attribution” link at the
right".

also:

Q: "When do I have to show "proper attribution"?

A: "Whenever and however you use the term “Linux” in print, on the
internet, or in audio broadcasts, you should always give proper attribution to
Linus Torvalds, the owner of the trademark. For more information on
attribution, follow the “Trademark Attribution” link at the right".
----------------------------------------------
Hmmm, If Linux is being used in court filings, then does SCO or whoever need to
do this Linux® (using the trademark of LINUX whenever they write about Linux®)?

----------------------------------------------
Trademark Attribution
http://www.linuxmark.org/attribution.html

How to publicly acknowledge that Linus Torvalds is the owner of the Linux
trademark.

Attribution Is For Everyone

If your use of the Linux trademark doesn't fall under the scope of the Linux
Sublicense, you should attribute ownership of the mark to Linus Torvalds in two
ways:

1. For each web page, advertisement, or publication, the first prominent
appearance of LINUX should feature the "circle R" character adjacent
to the X, as follows:

Linux®

2. At the end of your web page, advertisement, publication or media broadcast,
include the following text in a legible font and size:
Linux® is the registered trademark of Linus
Torvalds in the U.S. and other countries.

Attribution for Sublicensees

The LMI sublicense sets forth how the mark should be attributed by sublicensees.
Sublicensees are required to place the following legend conspicuously on each
piece of authorized goods, and at least once in the area of the title page of
any documentation or sales literature accompanying each authorized good or
service:

The registered trademark Linux® is used pursuant to a sublicense from the Linux
Mark Institute, the exclusive licensee of Linus Torvalds, owner of the mark in
the U.S. and other countries.

Forms of the Mark

Linux is a word-mark, meaning that any form of the word is covered by the
trademark registration. This includes all-caps ("LINUX®") or the
standard capitalized form ("Linux®"). Either form is acceptable to
LMI so long as it is presented in a legible font.

Space Limitations

LMI understands that space limitations can make including these attributions
difficult. When made necessary by space limitations, any reasonable facsimile
of these attributions may be used. In case of doubt as to the proper shortened
form, examples may be submitted to LMI for approval.

[ Reply to This | # ]

Discovery for the future?
Authored by: Anonymous on Monday, November 07 2005 @ 10:29 AM EST
A silly question, but when you start a trial, should your case not be about an *established* infringement, an *existing* code? What I mean is: the code that is supposedly infringing on your IP must already have been written. Even you you would stretch it by saying that 2.7 means the future version of the kernel, that did not exist at the time the case was started, so could not be the object of a case.

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Anonymous on Monday, November 07 2005 @ 10:33 AM EST
Anyone who is a technician and still works at SCO should be totally embarrassed
enough by the bozo's in charge to finally look for another job where they may
have the chance to do REAL work.
As for their request for materials about the 2.7 kernel, hand them a ream of
paper........blank paper and call it good.

[ Reply to This | # ]

An Assumption and Two Questions
Authored by: Anonymous on Monday, November 07 2005 @ 10:53 AM EST
We all know that SCO is a little inept when it comes to legalese, or at least
their lawyers sure seem to be.

First, if we assume that SCO is making this request based upon something they
have seen in previous discovery. Perhaps there were emails discussing something
that may make it into the 2.7 kernel if/when it happens. So, somewhere,
somehow, at sometime, a programmer in IBM wrote some code that may make it to
the 2.7 kernel and SCO has some emails or discussions, or something that says
this is happening within IBM. OK, that is the assumption.

The first question is: Since this code has obviously never been officially
submitted to any *public* reviews or vetting on the LKML, nor has it been part
of any official *public* release of Linux would IBM have to provide this code
and development notes?

The second question is related to the first: This question also requires an
assumption -- that SCO does own *EVERYTHING* related to Unix source. This
source code can be gotten from almost any Unix release as it is required for
rebuilding the kernl. Is it illegal for me, in the comfort of my own home or
business, to play around with that code, modify it, rebuild it, change it, fix
it, etc.? As long as I do not *release* this code to others?


Please do not shoot down the assumptions -- I know they are far fetched, rather
respond to the questions.

My guess is this is what SCO is doing, and I fear (or actually hope) that they
will fall flat on their collective faces.

[ Reply to This | # ]

It's like Dumb and Dummer in Real Life
Authored by: frk3 on Monday, November 07 2005 @ 11:10 AM EST

As I read "MEMORANDUM IN SUPPORT OF SCO'S OBJECTION TO THE MAGISTRATE COURT'S ORDER OF OCTOBER 12, 2005", I kept hearing the voice of Harry (Jeff Daniels) driving and saying to Lloyd (Jim Carey), "You can't triple stamp a double stamp! Lloyd! You can't triple stamp a double stamp!"

SCOX at least makes me laugh out loud some times.

[ Reply to This | # ]

Not a typo, a scrivener's error
Authored by: Anonymous on Monday, November 07 2005 @ 11:56 AM EST
: )

[ Reply to This | # ]

expecting a 2.7 kernel
Authored by: Anonymous on Monday, November 07 2005 @ 01:15 PM EST

Perhaps SCO expects to delay the case until the 2.7 kernel is released, and is
simply asking for those contributions in advance.

[ Reply to This | # ]

Actually this is their 4th, and 5th argument
Authored by: Anonymous on Monday, November 07 2005 @ 01:19 PM EST
SCO's 1st argument: In their initial memo for their renewed motion to compel
(the one they are complaining about being denied): IBM has persistently failed
to produce discovery the court ordered.

(IBM Opposition memo: Yes IBM failed to produce, because the court didn't order
it, and we never agreed to either)

SCO's 2nd argument: In their reply for motion for the renewed motion to compel:
The court ordered it, and IBM agreed to it.

SCO's (first part of hearing): Rehash of argument #2

IBM's reply, magistration judge's questions - the order's don't cover IBM
producing it, because the issues SCO now raise weren't even raised at the prior
hearings.

SCO's 3rd argument (second part of hearing). Forget about what the court
previously ordered, IBM did agree to produce it

SCO's 4th argument (in motion to Wells): Forget about what the court previously
ordered, and forget about what IBM did or didn't agree to produce - please order
it now, because we really really want it

SCO's 5th argument and 6th (in motion to Kimball): Well's doesn't understand her
own previous orders, in the alternate if you think you did, we really want this
stuff, so use argument 4.

[ Reply to This | # ]

Linux 2.7 - The Phantom Kernel
Authored by: kawabago on Monday, November 07 2005 @ 01:23 PM EST
Kernel 2.7 is the hidden code base that contains all the stolen code! The Rebel
Alliance stole the code to examine it for a weakness in SCO's ultimate weapon,
the Death Server. This nightmare weapon has technologies for scalping (apache)
and immolation (the firewall) among others. Stay tuned for the next
installment: Linux 2.7.1 - Attack of the Clones.


---
TTFN

[ Reply to This | # ]

I suggest we setup a petition.....
Authored by: Dogeron on Monday, November 07 2005 @ 01:38 PM EST
....for Linus which, assuming IBM wins this case within the lifetime of my
great grand children, - a pretty long stretch as I don't have children (yet) -
will ask Linus to skip version 2.7 of Linux and go directly to 2.8 in
recognition of IBM's mammoth achievement.

This would make a suitable
tombstone in GNU/Linux's (and computing) history marking the demise SCO.

Any
thoughts?

====

Finally I've remembered my password! :-)

[ Reply to This | # ]

Precrime!
Authored by: jbb on Monday, November 07 2005 @ 02:25 PM EST
The poor unhappy folks at SCO-BSF must have been watching Minority Report in order to get their minds off of the way their hopes for world domination have been swirling down the drain.

After a few too many frosty beverages, they came up with a truly brilliant idea. Every time in the past, when they presented their "evidence" of IBM wrong doing, it was shot full of holes within days by the Linux community. They needed to come up with a crime that required no evidence and thus could not be refuted. Precrime!

They will claim that they have a team of three MIT deep diving rocket scientist precogs who have looked into the future and see that IBM will be contributing infringing code into Linux 2.7 if and when such a version is created.

BSF will then twist things around, pretend that they are the defendant (since they are defending their rights) and demand that IBM provide concrete proof that they will never infringe SCO's precious (precioussss) IP in the future.

---
Anyone who has the power to make you believe absurdities has the power to make you commit injustices.

[ Reply to This | # ]

You shouldn't let them know about Kernel 2.7 yet
Authored by: Anonymous on Monday, November 07 2005 @ 03:46 PM EST
I mean, now they probably will know that 2.7 doesn't exist. They might have put
their foots in their mouth a bit more deeper.. let's say stuck in there until
their face turn blue. Everybody will be laughing at their idiotic face.

[ Reply to This | # ]

Out of Topic - Gather Millions of people to sue SCO off the planet
Authored by: Anonymous on Monday, November 07 2005 @ 04:00 PM EST
Hey, is there a chance we can get together all over the world to sue SCO off
this planet Earth or ask them to shut up! I don't see SCO as a company of people
but an dark entity that is trying to black out the progress of technology and
freedom to develop programs in a community. Is there a way, we can also declare
war on SCO (get together and boycott their products)? They whining too much and
it is too annoying.

[ Reply to This | # ]

They can't have it both ways
Authored by: DaveJakeman on Monday, November 07 2005 @ 04:04 PM EST
In the midst of that stuffy, formal, regular legalese, SCO suddenly blurts out:
"they can't have it both ways". Twice.

And that's a bit rich, coming from SCO. Maybe SCO have been reading too much
Groklaw recently.

The term "they can't have it both ways", previously reserved for use
in connection with SCO, no longer applies; it's more a question of: which way
does SCO want it this time?

---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Yossarian on Monday, November 07 2005 @ 04:17 PM EST
>but IBM's reaction tells me that they don't much care,
>that no matter what they turn over, there is nothing
>to worry about from their perspective.

There is another possibility.
IBM can wait for end of discovery and then see the quality
of SCO's evidence. If it will be any good IBM will ask the
judge to ban them because they were not turned on time in
discovery and therefore IBM lost the ability to use discovery
to collect evidence. If the judge will agree, victory!
If the judge will refuse, and IBM will lose, then IBM will
be able to ask a higher court to send the case back to
square one because it did not get its discovery on time.

Yes, I know that the probability of the last case is
pretty low, but a good lawyer covers as much of the
probability space as possible.

[ Reply to This | # ]

I don't think that word means what you think it means...
Authored by: walth on Monday, November 07 2005 @ 04:51 PM EST
I have been reading the transcript and this PDF as well as others, and wonder
why IBM is not slapping TSCOG repeatedly when they use their favorite phrase.

DEAR IBM,
NEXT TIME TSCOG MENTIONS SOMETHING THAT GOES TO 'THE HEART OF THE CASE' OR
'THE CORE OF THE CASE', LET THE JUDGE KNOW THAT YOU DON'T KNOW WHAT THEY ARE
TALKING ABOUT, AS THEY HAVEN'T SPECIFIED WHAT THEY ARE SUING ABOUT!

MY BILL FOR LEGAL ADVICE IS IN THE MAIL.

THANK YOU.
WALTH

Wow, I feel so much better getting that off my chest. It just bugs me when I
read one of the TSCOG lawyers using that phrase, as though IBM should know by
now what this case is about and act accordingly, when they have never put forth
a coherant version of what they are suing for - as Judge Kimball has noted.

[ Reply to This | # ]

It's a mistake
Authored by: Tufty on Monday, November 07 2005 @ 05:42 PM EST
Plain and simple. The conspiracy theorists are having a field day with this but,
I believe, all that happened was a mistake was made. Let me explain.

This case has gone on for some time and the original investigations happened a
few years ago. The SCOG executives and the legal team found out about Linux.
They realised that the release versions are the even numbers and the odd ones
are the development ones. They saw 2.1 2.2 2.3 2.4 2.5 2.6 come as the case
progressed. They naturally assume that 2.7 is the next development version and
want to see the code. They have not gone back and done diligence to see if there
is a 2.7 and just assumed it exists.

Now, we have to remember that they don't really grok open source software. They
understand the traditional, commercial system that Microsoft is a good example
of (yes, I really said that!). In the commercial world, a project is concieved
and begun as a specification with a code name. It is secret. Eventually the
marketing droids dangle bits of it as chum to see what is biting what. This
drives development and gradually the secret emerges as does the codename. Think
Longhorn. Eventually the project is given a working name, eg Vista, and the
alphas and betas come out followed by the x.0 release.

In reality the x.0 release is not the technically ready beast but what was
available when the marketing droids insist on the release date and comes with
with features missing or broken. It is, in reallity, a development release.
Everyone waits for the x.1 version or the SP1 before taking it seriously.

The problem is not groking the trunk/branch of the open source system. That the
release IS the technically functional version at (eg) 2.4 while the development
runs at 2.5. Ok, there are bug fixes on the release eg 2.4.1 nothing is bug
free. Now this is the miss step. They assume that the 2.7 is being created ready
for release after which the open source community will work on it.

What is interesting and made me sit up, is that this would explain the obsession
with NON PUBLIC code. They expect there is code being prepared for 2.7 that has
not been released yet. They are using the commercial model that begins the
project, in this case 2.7, before it is released and then worked on. That is why
they think IBM is hiding non public contributions, they think IBM are developing
the 2.7 ready to release.

This really ties up a few ends though I expect people can pick holes in this or
put a few more bits on the ends.

Discuss.


---
There has to be a rabbit down this rabbit hole somewhere!
Now I want its hide.

[ Reply to This | # ]

"0Boies, Schiller, and Flexner" End Of Line Statement
Authored by: Wesley_Parish on Monday, November 07 2005 @ 06:22 PM EST

I think nobody's going to waste time hiring them agin, once this case is over. I think they've blown their careers right out of the water.

In a way I feel sorry for them, but then they've probably got more than enough money so they can retire in style even if not in any kind of self-respect.

I expect them to write up their memoires in the classical American literary style originated by Travis Tea as seen in his blockbuster novel "Atlanta Nights", Chapter 34.

---
finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

more general comment...
Authored by: Anonymous on Monday, November 07 2005 @ 06:28 PM EST
When is the court going to ask SCO and its corporate members to pay for their
legal costs that the Federal Govt has incurred from their baseless claims? Why
is anybody even still entertaining their case at all? *This is taking big
dollars away from a government that is in debt, not to mention various
corporations whose well-being are important to the whole country.*

[ Reply to This | # ]

Should we fork to DEV now?
Authored by: Sunny Penguin on Monday, November 07 2005 @ 06:41 PM EST
I may be wrong(it happens a lot) but why not fork to 2.7 and then give SCO
"discovery"?
It would be 2.6 (a dev kernel is always the same as the latest release at
first)
We could even give it the new nickname "secretsauce"

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

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: cmc on Monday, November 07 2005 @ 07:22 PM EST
"I hope IBM holds them to the discovery protocol, because it's my view that
they are angling for discovery in the hopes that they will stumble onto
something to build a case with, as opposed to what is normal in litigation,
where you ask for discovery to focus and prove the case you brought when you
filed your complaint."

Isn't that what SCO has been doing all along? The actions they have taken in
discovery prove that they are neither trying to focus nor prove anything. Just
look at what they allege. I may be wrong (remembering incorrectly), but didn't
they originally claim copyright infringement and theft of trade secrets? Then
they dropped both of those claims and are now concentrating on breach of
contract claims? And let's not even get into trying to sneak the Monterey stuff
in there.

cmc

[ Reply to This | # ]

2.7 seems a bit of a red herring
Authored by: xtifr on Monday, November 07 2005 @ 07:42 PM EST

Looking more closely at this document, I notice that the mention of 2.7 is actually a quote from an older request, and not necessarily exactly what they're asking for at this time, precisely:

"In an abundance of caution, this summer SCO again and very specifically asked IBM to produce all documents concerning IBM's contributions to Linux and development work for those contributions. SCO requested for example:"
(the list of requests including the request for contributions to 2.7.)
Note the past tense in "requested", and the "for example".

Charming as the notion is of SCO's case foundering because of their belief in a non-existent kernel version, I don't think that's going to be a relevant issue. I think IBM's best bet is to focus on the points they raised at the Oct. 7 hearing:

"Your Honor, we have done the best we can do with what we have from them with respect to what we are supposed to -- with respect to what this case is about. And I will remind you that with respect to what in Linux they have rights to, you remember we asked and propounded in Interrogatory 13. Your Honor twice ordered them to respond to it. We still don't have what we believe is an adequate response. That's the interrogatory in which they say, here are the contributions that are a problem. We own them. Here's our right to them. Here's how you violated it. We still don't have the answer to that. [...]"

"Again, the Court's protocol was quite clear. SCO produces. IBM then goes from there. [...]"

"We have produced, you know, the equivalent of billions of lines and literally hundreds of milllions of lines of AIX and Dynix code, all of the development information from that information.
"What you don't see, Your Honor, in anything before the court today is any use of that information. What you don't see is SCO saying, you know, they produced all of this. Here's now what we know. We can define and focus the issues.

"We have produced millions of pages of paper that apparently are of absolutely no value to SCO. At a minimum, they are not moving this towards a solution. The closer we get to the close of the case, the more questions we have, the more discovery is apparently needed."

(All emphasis mine.) Those are lines of argument that seem most likely to be productive to me.

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

[ Reply to This | # ]

Maybe, they found reference to 2.7 in IBM developer notes or discovery answers
Authored by: Anonymous on Monday, November 07 2005 @ 08:53 PM EST
Maybe, but heaven forbid, this is a new avenue for delay built on an obscure
reference to 2.7 in some developer notes or discovery answers.

[ Reply to This | # ]

Affirmative Action on SCO's request
Authored by: Anonymous on Monday, November 07 2005 @ 11:32 PM EST
Now is the time for all good Linux supporters to put a piece of paper titled
"Linux 2.7 kernel code" with the rest blank, into an envelope and post
it to SCO.

They can at least use it to wipe the egg of their corporate faces.

[ Reply to This | # ]

IBM won't be able to contribute SCOX intellectual property to the 2.7 kernel
Authored by: Anonymous on Tuesday, November 08 2005 @ 12:14 AM EST
I doubt that SCOX will be around then to own any IP. Furthermore, I encourage
Linus and the entire kernel development team to seriously consider making 3.0
the next kernel release to ensure that this blunder can be set on a pike as a
warning to the next ten generations that some lawyers come at too high a price.

[ Reply to This | # ]

Brooding to the "non-interim" deadline
Authored by: webster on Tuesday, November 08 2005 @ 02:09 AM EST
The Sony Rootkit detects brooding. These items were zombied out of Lindon.

1. Things have been pretty bleak lately. Judge Wells can't be made to see
discovery our way anymore. The hearings are duds if not disasters. The filings
harm credibility and risk professional disgrace.

2. If we had any strong evidence, we could unseal some of it if for no other
reason than to counter PJ's ridicule. Look at today's article. Oh that there
were a valid copyright for her to choke on!

3. We would love to unload on the deadline, but we don't have anything a
respectable expert will stand behind. IBM will demand specificity as to code
and origin. That which we can't specify, we can't use.

4. If we specify anything now, we risk contempt. We have already been ordered
twice to produce. Complying with a deadline isn't going to get us out of
contempt. The ony way to avoid contempt is to not disclose anything else. This
is of course tantamount to saying that we do not have anything. Either way we
are going to have to pay.

5. We are going to have to specifically show what we had in mind when we said
all those things about Linux. We can't rely on new discovery for that. We'll
have to say were were sadly mistaken, but not lying.

6. Our lawyers told us we may not have enough to go down this road. We assumed
the risk since the financing was there. They should have protected us. They
will say we were the code experts. But they should have known we were not the
type of experts that could testify in court. Let's hope somehow we don't battle
with our lawyers.

7. Let's hope IBM is satisfied with a clean Linux finding and they don't file
more Motions to compel or for contempt and sanctions. A PSJ looks quick and
merciful at this point.

8. To get anywhere we have to win a judge over. At this point they are both
"astonished" at our lack of evidence and credibility. Wells believes
we twist her words which we do as advocates.

9. Our media advocates are ineffectual and even M$ keeps its distance now. How
can we counter Groklaw without some media. Even Forbes is suiffering scrutiny.


10. It ain't over till it's over, but we need some yardage right now
desperately. Some one else should sue them for something. Or Linus could admit
to some suspect code. PJ could go to work in Bangalore.

---
webster
>>>>>>> LN 3.0 >>>>>>>>>

[ Reply to This | # ]

Linux Virus alert from Symantec
Authored by: AndyC on Tuesday, November 08 2005 @ 04:21 AM EST

Symantec Have got a level 2 Linux virus listed on their web site. As usual, Symantec don't tell you how it infects your machine, so I've looked at McAfee but these are the only sites that tell you about it that I've found.

Interestingly enough, a quick search of the F-Secure Virus Database only shows up about 10 Linux viruses, so having another one appear is like a 10% increase in the number of Linux viruses around. [If we had a similar percentage increase in the number of Windows viruses, there would be blood on the chairs ;-) ]

Andy

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SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: Anonymous on Tuesday, November 08 2005 @ 07:51 AM EST
Uhm, not sure where this is leading, but there is a Linux 2.7 kernel.

Linux development uses odd number kernels to indicate development streams, so
the development versions of Linux that resulted in the 2.6 kernel were all
numbered 2.5. the development thread that resulted in the 2.4 kernel was numbers
2.3. and so on. The 2.7 development effort will result in a Linux 2.8 kernel
that will be released when Linus believes it is ready. And if you search the web
you will find lots of submissions, proposals and papers discussing the possible
features to be included in the 2.7 development stream.

As such IBM has developers working on the 2.7 kernel at the moment. This did not
exist when SCOG launched their accusations, (and so SCO cannot suggest that this
formed the basis of their case) but it does exist now.

Finally - If SCOG get away with asking for this discovery - they will be able to
keep this going indefinately. 2.7 is currently being worked on and as such the
discovery materials will grow daily.

[ Reply to This | # ]

Get well soon!
Authored by: Groklaw Lurker on Tuesday, November 08 2005 @ 10:41 AM EST
Hi PJ -

If you're ill I wish you the best and hope you get well soon!


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

[ Reply to This | # ]

IBM unsealed e-mails et al
Authored by: Nick_UK on Tuesday, November 08 2005 @ 12:21 PM EST
I have just had a thought - conjecture, of course. Are
there still any unsealed IBM mails/documents?

Maybe IBM did have a private internal development of the
Linux kernel 2.6.x, with improvements etc. that were due
to be (asked) to be added to 2.6.7 when the development
branch happened (as we know, that is now not the case) -
and these usealed documents refer to it?

So perhaps SCO could be referring to that?

Nick

[ Reply to This | # ]

Maybe 2.7 does exist ...
Authored by: Anonymous on Tuesday, November 08 2005 @ 02:24 PM EST

... in the parallel universe that SCO spend most of their time inhabiting.

You know, the one that doesn't just have different laws of physics but has
completely different logical structures and legal frameworks as well.

Hey - it's as good an explanation as any for their apparent inability to grasp
that, in our universe, evidence of wrongdoing usually comes before discovery.

And that judges generally make orders that they expect to be obeyed, rather than
just for the fun of it. [grin]

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: blacklight on Tuesday, November 08 2005 @ 08:39 PM EST
"Nothing SCO has done reveals the phoniness of their alleged need for this
discovery material so much as this incredible blooper."

And nothing reveals their attention to detail - or lack of it, as this
incredible blooper. And Chris Sontag as CTO of SCOG qualifies as a subject
matter expert, eh?


"SCO appears to be just winging it, hoping some plum will fall in their
lap, and changing what it's all about over and over."

Some people who are about to die and don't want to die will believe the
strangest things - that includes SCOG and its outside lawyers. At the end of the
day, we are not analyzing how loud SCOG screamed and screeched, we are analyzing
the signal to noise ratio of their screams and screeches.



---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

SCO's Objection to Wells' Discovery Order and Memo in Support - as text
Authored by: blacklight on Tuesday, November 08 2005 @ 08:54 PM EST
"It is incongruous that IBM should have to produce its AIX and Dynix source
code and development materials, but not source code and development materials
for the very contributions to Linux at the heart of this case." SCOG
pleading

The "heart of the case", as defined by SCOG, is something of a
pendulum that swings back and forth between alleged copyrights violations,
alleged trade secret violations and alleged contract violations depending upon
the day of the week. On one day, it's about AIX. On another day, it's about
Dynix. And on some other third day, it's about Linux. You gotta admire the
consistency.




---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

Follow the pea
Authored by: Anonymous on Tuesday, November 08 2005 @ 09:19 PM EST
Everyone is getting bored. The guard is dropping some.

Just look at the professional quality of the motion, and compare it to the older TSG writings. This is a quality piece of work. Change is afoot with TSG.

Notice how TSG talks past this judge while setting the stage for their longterm strategy. TSG shows little respect as they tell this judge how it was, is, and will be according to TSG.

Does this judge really know how to handle TSG...or even care? TSG intends to push until discovery closes. TSG intends to go to a local jury with no legal evidence at all, hidden behind sealed filings.

If I were IBM, I would be laying a trail of legal filings for the record to identify the lack of specificity, each delaying tactic, TSG failure to comply with court orders. But then I am not a lawyer, so I am left on the sidelines only hoping the US courts do not screw up.

[ Reply to This | # ]

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