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SCO Files "Disclosure of Material Misused by IBM", as text
Wednesday, December 28 2005 @ 12:48 AM EST

SCO has filed its list of material allegedly misused by IBM with the court, with a cover sheet in which it expands on its theme with the usual style and flourish. For comparison, I suggest you compare it with the SCO public statements in 2003 about the mountain of code they claimed to have in hand that later evaporated. Or, compare it with the nonsense they told the court about Daimler Chrysler's alleged sins, which didn't hold water in the end. Or their statements about what they claimed to find in the AutoZone case... remember AutoZone correcting what it called SCO's "material misstatements"?

They say now that they have found 293 "separate technology disclosures which SCO contends are improper". Of course, they filed it under seal, so who knows? They actually claim they have lots more they aren't filing. If you believe that, that SCO would refrain from filing every jot and tittle if it had any, you must be new. But the filing in October was only 217 items. Remember when they told Judge Wells they'd answer IBM's interrogatories finally by this deadline? Well, they didn't. They're working on it, they say. So the bottom line in this case is that SCO successfully made it through discovery to this deadline without telling IBM with specificity what this case is all about. That must be some kind of record. Here's the Pacer list of recent activity in the case:

Filed & Entered: 12/22/2005 - Modification of Docket
Docket Text: Modification of Docket: Error: the minute entry for the previous teleconference states that the due date for RFAs for both parties and both discovery periods is 1/20/06. Correction: After further clarification, the order will be that the RFAs for the INITIAL discovery period will be 1/20/06. The rest of the order stands. (alp, )

589 - Filed: 12/22/2005
Entered: 12/27/2005 - Notice of Filing
Docket Text: NOTICE OF FILING of Disclosure of Material Misused by IBM filed by Plaintiff SCO Group. (blk, )

590 - Filed: 12/22/2005
Entered: 12/27/2005 - Sealed Document
Docket Text: **SEALED DOCUMENT**Entitled: SCOs Second Revised Supplemental Response to Defendants Six Sets of Interrogatories filed by Plaintiff SCO Group. (blk, )

591 - Filed: 12/22/2005
Entered: 12/27/2005 - Sealed Document
Docket Text: **SEALED DOCUMENT** Entitled: Appendix Volumes I-XX to [589] Disclosure of Material Misused by IBM filed by Plaintiff SCO Group. (CLERKS NOTE: Appendix volumes are oversized, therefore they are not scanned into electronic images for attachment to docket event. They are contained in 7 labled boxes. They will be retained in the 5th floor sealed room for viewing by the court, and by persons with authorization to view by court order only.) (blk, )

Filed & Entered: 12/21/2005 - Telephone Conference
Docket Text: Minute Entry for proceedings held before Judge Brooke C. Wells : Telephone Conference held on 12/21/2005. Court hears discussion by both parties re: Requests for Admissions (RFAs). Due date of 1/20/06 is set for both parties, for both discovery periods. Parties will agree to any additional RFAs that may be provided after 1/20/06.Attorney for Plaintiff: Ted Normand, Attorney for Defendant Todd Shaughnessey. (alp, )

And now, here's the filing's cover sheet, titled SCO's Disclosure of Material Misused by IBM [PDF], as text.

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

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.

SCO'S DISCLOSURE OF
MATERIAL MISUSED BY IBM

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

The SCO Group, Inc. ("SCO") respectfully submits the following Disclosure of Material Misused by IBM in accordance with the Court's Pre-Trial Management order of July 1, 2005.

The Court's Order called for the Parties to identify misused technology with specificity, in an initial report to be filed by October 28, 2005, and a final report due on December 22, 2005. This report indicates the technology that IBM has misused. The report, filed separately under seal as "EXHIBIT 1 to SCO'S DISCLOSURE OF MATERIAL MISUSED BY IBM", and the supporting appendices, identify the technology that has been improperly disclosed, where possible who made the disclosure and the manner in which the disclosure was made, the location of the technology in UNIX or a UNIX derivative or modified product as to which SCO claims proprietary rights, and the manner in which the disclosure has been contributed to Linux. The report identifies 293 separate technology disclosures which SCO contends are improper and are at issue in the instant case.

The present submission, which embraces several thousand pages of material, prepared with the assistance of several experienced technology consultants, is substantial, but distilled from an even larger universe of code and related materials. The numerosity and substantiality of the disclosures reflects the pervasive extent and sustained degree as to which IBM disclosed methods, concepts, and in many places, literal code, from UNIX and UNIX-derived technologies in order to enhance the ability of Linux to be used as a scalable and reliable operating system for businesses and as an alternative to proprietary UNIX systems such as those licensed by SCO and others. IBM has acknowledged -- both internally and externally (e.g., 2nd Am. Compl. ¶¶90-96) that it has sought in this way

2

to infuse Linux with the robustness of AIX and Dynix/ptx, both of which are derivatives and modifications of UNIX System V, and subject to SCO's contractual rights.

SCO is contemporaneously supplementing its prior responses to IBM interrogatories regarding these technological disclosures.

DATED this 22nd day of December, 2005.

Respectfully submitted,

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

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

By __[signature]___

Counsel for The SCO Group, Inc.

3

CERTIFICATE OF SERVICE

Plaintiff, The SCO Group, Inc., hereby certifies that a true and correct copy of the foregoing SCO's Disclosure of Material Misused by IBM was served on Defendant International Business Machines Corporation on the 22nd day of December, 2005:

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

Donald J. Rosenberg, Esq.
[address]

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

___[signature]___

4


  


SCO Files "Disclosure of Material Misused by IBM", as text | 296 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Hear
Authored by: Anonymous on Wednesday, December 28 2005 @ 01:17 AM EST
Post 'em if you got 'em!

[ Reply to This | # ]

  • Hear Hear - Authored by: Anonymous on Wednesday, December 28 2005 @ 03:29 PM EST
  • Corrections Hear - Authored by: Anonymous on Wednesday, December 28 2005 @ 11:36 PM EST
Corrections Hear, not there
Authored by: Anonymous on Wednesday, December 28 2005 @ 01:19 AM EST
And ignore the anonymous posting I did by misteak.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Off Topic
Authored by: Anonymous on Wednesday, December 28 2005 @ 01:29 AM EST
Please submit any linky things as HTML instead of Plain Old Text, and pay
attention to the red text and Important Stuff on the Comment-posting page.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Give 'em the old "razzle dazzle"!
Authored by: Anonymous on Wednesday, December 28 2005 @ 01:31 AM EST
Looks like SCO wants to go in front of the jury with the old razzle dazzle.
"Look! We've got BOXes of evidence! I know it's all so technical, but
look BOXes!. There _must_ be something in there that IBM has done! Look!
BOXES!"

[ Reply to This | # ]

SCO Files "Disclosure of Material Misused by IBM", as text
Authored by: Anonymous on Wednesday, December 28 2005 @ 01:50 AM EST
Loud public aligations, secret private evidence.
'Nuff said.


---
Are you a bagel or a mous?

[ Reply to This | # ]

disclosure or "technologies"
Authored by: Anonymous on Wednesday, December 28 2005 @ 02:12 AM EST
Note what is there, "disclosure of technologies."

note (by their GLARING absence), those all-important words

"copyrighted code" contributed to Linux

"code clearly and proveabaly owned by SCOG" contributed to Linux.

[ Reply to This | # ]

It's not the quantity not the quality...
Authored by: Anonymous on Wednesday, December 28 2005 @ 02:15 AM EST
I remember seeing a copy of the Linux 2.2 source code printed out as double
spaced. I seem to recall about the size of a ream of paper. At least that is
what I had to replace... Hey, piping accidents happen....

And the boxes contain Appendix 1-20....

Each Linux version is probably an Appendix....
2.0.0,2.0.1,2.0.1, ..., 2.6.14.

So, Linux 2.2, Linux 2.4, Linux 2.0 and Linux 2.6. With all the minor versions
toss into the mix. My guess is that would cover 5 or 6 of the boxes. I wonder
what's in the last few.... or one....

[ Reply to This | # ]

As predicted.
Authored by: jbb on Wednesday, December 28 2005 @ 02:38 AM EST
Could see this one coming from a mile away.

They wait until the last minute then claim everything in Linux is infringing.

The plan is that for every hour SCO-BSF spent adding some nonsense to their crates, they figure it will take IBM ten hours to refute it.

Of course they claim this is only the tip of the iceberg.

Months ago I wondered what options IBM has available to deal with such an onslaught of bogosity. To me, that is still the interesting question. I think they will brush aside crates of "evidence" with broad strokes claiming that SCO has no rights over code independently written and developed by IBM.

But I still wonder if IBM can respond to, let's say the first 5% or 10%, prove it is entirely bogus and then ask for relief from the court from having to wade through the rest. Perhaps the judge could ask SCO to come up with their top 10 greatest hits and if none of them fly, then the rest just gets thrown out.

Any legal eagles know if there is any precedent for dealing with this sort of abuse of the court system?

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

[ Reply to This | # ]

SCO Files "Disclosure of Material Misused by IBM", as text
Authored by: geoff lane on Wednesday, December 28 2005 @ 03:40 AM EST
The number is remarkably close to the number (283) of possible "patent infringements" reported by Open Source Risk Management.

Could it be that TSG lawyers have just copied the list and stuck a few of their own invention on the end?

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

[ Reply to This | # ]

SCO Files "Disclosure of Material Misused by IBM", as text
Authored by: blacklight on Wednesday, December 28 2005 @ 04:32 AM EST
"This report indicates the technology that IBM has misused. The report, filed separately under seal as "EXHIBIT 1 to SCO'S DISCLOSURE OF MATERIAL MISUSED BY IBM", and the supporting appendices, identify the technology that has been improperly disclosed, where possible [my italics] who made the disclosure and the manner in which the disclosure was made, the location of the technology in UNIX or a UNIX derivative or modified product as to which SCO claims proprietary rights, and the manner in which the disclosure has been contributed to Linux."

The qualifier "where possible" of course nullifies the meaning of the sentence above: it throws into doubt whether SCOG has complied either with the letter of the spirit of the requirement to disclose "with specificity".


---
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 Files "Disclosure of Material Misused by IBM", as text
Authored by: blacklight on Wednesday, December 28 2005 @ 04:36 AM EST
"SCO is contemporaneously supplementing its prior responses to IBM
interrogatories regarding these technological disclosures."

That sentence pretty much summarizes SCOG's respect for the discovery deadline.
I will be quite annoyed if and when judge Wells rules that SCOG is complying
with its discovery obligations in good faith.


---
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 | # ]

IBM's brief response?
Authored by: Anonymous on Wednesday, December 28 2005 @ 05:48 AM EST

Every single one of these "technologies" has been contributed to Linux by SCO when SCO chose to distribute a version of GNU/Linux under a GPL license.

They've mentioned this a few times as an aside or footnote. Personally though, I think it cuts to the core of the case (i.e. it illustrated how non-sensical SCO's claims are). SCO gave away their golden-egg-laying goose all by themselves.

[ Reply to This | # ]

Proper challenge to sealing
Authored by: Anonymous on Wednesday, December 28 2005 @ 07:50 AM EST
What is the proper route for the MANY other entities who have a vested interest
in this litigation to get this list unsealed? The court was willing in a past
challenge to require unsealing (with some redaction) of material inproperly
sealed. Didn't the court acknowledge then that this is significant to a much
larger part of the public than just IBM?

We should have an unsealed list, for instance, of the parts of publicly
available GPL'd code they contend are somehow 'stolen'. There is no loss of
control of any SCO information that is not already pulic in such a list.

If their list says "SCO Secret Sauces 1 thru 293 in column A were slowly
mutated into Linux Pirated Thoughts 1 thru 293 in column B", the list of
all 293 collumn B items, which are already public anyway can be published with
all of column A redacted.

SCO should be compelled to file a redacted form of this list that omits only
SCO's various supposed secret sauces. They should not be allowed to to file
publicly available, easily found information under seal.

[ Reply to This | # ]

Wait...wait... I think I hear Maureen
Authored by: seanlynch on Wednesday, December 28 2005 @ 08:36 AM EST
How long before Maureen O'Gara and Forbes submit a brief to have these filings
unsealed?

What? Never?

I thought they were fair and impartial journalists, gee was I mistaken.

[ Reply to This | # ]

Why doesn't someone challenge the seal?
Authored by: Anonymous on Wednesday, December 28 2005 @ 09:11 AM EST
Just wondering why someone doesn't challenge this latest filing being under
seal? After all, if the tech was put into Linux, it's already public isn't it?
So there wouldn't be a need for secrecy then. (I understand why SCO put it under
seal tho - most likely because the community would tear it apart).

[ Reply to This | # ]

Question for PJ and legal types
Authored by: Anonymous on Wednesday, December 28 2005 @ 09:39 AM EST
"They say now that they have found 293 "separate technology
disclosures which SCO contends are improper". Of course, they filed it
under seal, so who knows? They actually claim they have lots more they aren't
filing."

Ok, the stuff they claim they are not filing, since they said they would be
filed by "the due date", can the Judge dismiss that with prejudice, so
they can't try to add later? I am thinking the stuff they said they didn't
file, is just another delay tatic (maybe I am a cynic when it comes to SCO)

[ Reply to This | # ]

significance of missing the deadline?
Authored by: chrism on Wednesday, December 28 2005 @ 09:49 AM EST
So what is the likely impact on SCO of having missed the deadline?

[ Reply to This | # ]

SCOdinger's Cat
Authored by: Anonymous on Wednesday, December 28 2005 @ 10:01 AM EST
As long as the so-called evidence is under seal the evidence may or may not be
valid. Just like Schrodinger's cat might be alive or might be dead.
If the evidence is unsealed and the public can look, it will be seen that what
SCO has been waving around is indeed just a dead cat.
(And it stinks!)

[ Reply to This | # ]

It Boils Down to a Contract Dispute
Authored by: Anonymous on Wednesday, December 28 2005 @ 10:14 AM EST
QUOTE: "to infuse Linux with the robustness of AIX and Dynix/ptx, both of
which are derivatives and modifications of UNIX System V, and subject to
SCO's contractual rights."

<b>It all boils down to a contract dispute.</b>

SCO claims IBM contractually can't use its own homegrown, copyrighted code
in Linux because anything that touches Unix is a derivative of Unix System V.

Whatever SCO found, it implies it has no copyright violations. Instead,
whatever code it found, the code is IBM's own homegrown code or is BSD
code.

Since the dispute is over contract interpretation, this litigation becomes a
matter of law not fact. Thus, it will never have to go to trial. The judge can

decide for himself.

Of course, contract law and the intent of the people actually involved with the

contract between ATT and IBM, Santa Cruz and IBM, Santa Cruz and Sequent,
ATT and Sequent, all weigh in favor of IBM's interpretation of the contract.

And, since this happens to be a matter of contract interpretation, SCO itself is

under obligation to Novell to drop the lawsuit - as part of it's own contract
with Novell.

The Santa Cruz-IBM Monterey Contract explicitely further gave IBM everything
in Unix System V to use as it saw fit, even if Monterey failed.

Since it boils down to a contract dispute - without copyright complaints from
SCO, IBM's Partial Summary Judgments based on copyright should quickly
pass. Just those alone will gut the rest of the dispute.

[ Reply to This | # ]

Aren't they going about it backwards?
Authored by: Anonymous on Wednesday, December 28 2005 @ 10:43 AM EST

Why doesn't scox first point to the contract that forbids IBM to contribute,
then go on to specify exactly what IBM contributed.

Why can't IBM refute the entire thing by claiming: "IBM has no contractural
obligation not to contribute to Linux."

[ Reply to This | # ]

SCO Files "Disclosure of Material Misused by IBM", as text
Authored by: Anonymous on Wednesday, December 28 2005 @ 10:46 AM EST
since the judge in the novell case has said that not all
rights transferred over to sco from novell shouldn't this
case really be thrown out since novell doesn't want to
pursue it.

not that sco has any evidence I would just like to see
this case thrown out along with sco.

[ Reply to This | # ]

and in many places, literal code, from UNIX and UNIX-derived technologies
Authored by: SilverWave on Wednesday, December 28 2005 @ 10:50 AM EST
"...and in many places, literal code, from UNIX and UNIX-derived
technologies"

Knowing how sneaky SCO is I’m wondering how that should be parsed..

It may be in just for PR affect...

If asked they could say "we didn’t say the 'literal code' was under our
copyright, we just said "literal code, from UNIX and UNIX-derived
technologies"..."






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

Firstmonday 98 interview with Linus Torvalds

[ Reply to This | # ]

PSJ motions
Authored by: PolR on Wednesday, December 28 2005 @ 10:52 AM EST
It seems that bogus claims call for partial summary judgement motions.

If they don't mention copyrights being infringed, IBM can reactivate their
motions that they don't infringe any copyrigths because no infringement is
alleged with specificity.

If they only mention technologies and concepts IBM has the right to use by
contract, IBM can bring motions that they don't violate their contracts because
the alleged activities are not violations.

SCOG can repel such motions only if they bring an example of something tangible.
That something must be in the filing. IBM only have to argue there is nothing of
substance in the filing and SCOG is forced to bring an example that some
substance exist. If they can't the PSJ will pass.

The strength of PSJ is that IBM do not have to walk through and shoot down each
and every point from the filing. They just have to explain with a broad brush
why there is nothing of substance and let SCO bring a substantial point to repel
the motion, that is if they can.

[ Reply to This | # ]

  • PSJ motions - Authored by: PJ on Wednesday, December 28 2005 @ 12:58 PM EST
SCO Files "Disclosure of Material Misused by IBM", as text
Authored by: mwexler on Wednesday, December 28 2005 @ 11:49 AM EST
Would it be reasonable for a 3rd party (e.g. RedHat, Linus, Autozone, Groklaw)
or even a group of them to file a motion to release a redacted version of the
exhibits, that shows each infringing line of Linux? Given SCO's public claims
about Linux infringement and their attempts to effect the marketplace, I think a
strong argument could be made that this disclosure is necessary in order to
mitigate future damages.

It might even make sense for IBM to do this, given that IBM selling Linux to a
bunch of people and it would be valuable to them to be able to show that Linux
is no longer under a cloud.

[ Reply to This | # ]

A question
Authored by: Tufty on Wednesday, December 28 2005 @ 11:51 AM EST
TSCOG states they have found other instances, other than the 293. Can these be
reserected later like some undead zombies and thrown into the case or will these
become forever moot?


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

[ Reply to This | # ]

SCO Files "Disclosure of Material Misused by IBM", as text
Authored by: Anonymous on Wednesday, December 28 2005 @ 04:27 PM EST
Methods and concepts aren't protected here, and SCOg has no claim to them
anyhow.

There is no trade secret stuff either, as SCOg has none of those either.

So after all that, we're left with two things, copyright, which gets thrown out
because of GPL, etc. and because SCOg has no rights.

And finally contract claims, which again SCOg has no rights to against IBM, and
secondly because anything in their imaginations is also waived by Novell.

SCOg owns an empty paper cup, and is claiming infringment of the contents of the
cup. Which is... nothing. sooo, in the end they are asserting rights to nothing,
over nothing.

I agree with the other posters, a PSJ is looming on the horizon. IBMs response
is going to smack them down hard...

But, just wait for the judges response. (ouch!)
my personal opinion is that SCOgs lawyers are not going to walk away from this
without some court actions taken against them.

Could Darl's brother be disbarred? I have no real idea if that's possible. or
even likely. But it won't be pretty.
IANAL, IMHO, etc etc

[ Reply to This | # ]

Very Curious - The Pile at its Height
Authored by: webster on Wednesday, December 28 2005 @ 04:53 PM EST
1. Why 7 boxes of evidence with the Court? They were supposed to disclose this
to IBM. They say they are supplementing the answers to IBM's interrogatories.
But they create the onerous question, "Is their response with the 7 boxes
to the Court the same that they disclosed to IBM? Will they swear that the
disclsures to the court are exactly the same as what was boxed to the court? I
guess they file it with the Court to make it seem like they have something
substantial going. Notice IBM does not file boxes of discovery with the Court.
[I reread the Certificate of Service. It seems OK. But one wonders if there is
not more in the box than there is specified on the report. It is especially
suspicious since they say they are holding back potential evidence.]

2. What's New? This must be from new IBM Discovery, i.e. documents from beyond
publicly available code. This late disclosure would then be justified.

3. What's old? What should have been disclosed with the original discovery
requests, then the first motion to compel, then the second motion to compel?
Why wasn't it produced when previously requested or ordered? If not explained,
Will this be excluded? Will there be sanctions?

4. IBM could easily disclose these sealed documents since all the code in
question is publicly available or theirs. SCO would scream so they don't. They
remain good boy scouts and eschew effective nasty tactics. It helps them in the
end I guess. SCO doesn't want to expose the code to the original authors,
scholars, and bloggers. This case could be tried next week on GL.

5. The case has changed for SCO. IBM will make them pay for this change. They
will ask every witness about infringed copyrighted code, the copyrights,
statements about such, and the lack thereof. They will then be asked about
distributing Linux before and after the discovery of infringement and before and
after the filing of the suit. Then the supposed contracts.....

6. IBM will now categorize every alleged offense. They will reinstate their
PSJ's or Motions to Strike. No copyright, No Contract, Untimely, No possible
factual basis, or no match, Waiver by Distribution under the GPL and more.

7. The experts will now go over this code. Should IBM destroy them in
depsitions and use it in the motions? Or should they hold back and use the good
stuff for possible trial? It's a hard qustion.

8. What is worthy of putting before the jury? You would think that if experts
can't agreee, then it shouldn't be put before an amateur jury. Yet that is
exactly what happens. The experts oppose each other and the jury decides on
what....sympathy?

9. The pile is as big as it is gonna be. Now the Motions and
attachments.......



---

webster

[ Reply to This | # ]

Less is [usually] More
Authored by: sproggit on Thursday, December 29 2005 @ 05:33 AM EST
Anyone who has ever had experience of presenting information to senior managers, to directors, or to clients [actual or prospective] will be familiar with the old business adage,

"Less is More"

A while ago now, IBM's Legal Team [CSM] managed to point out to TSG that they had walked into a trap baited with the GPL. Groksters and others argued that since TSG had released their own code under the GPL, they could not legally challenge IBM's use of the same. TSG responded by claiming that the GPL was unconstitutional, unAmerican, and not legally valid. Very coolly, IBM then gave the court a list of contributions of undisputed IBM code that had been contributed to the GNU/Linux project under the auspices of the GPL. They asked TSG, very simply:

"Either you support the GPL, in which case you distributed our code legally, but acknowledge that we did the same... or you dispute the GPL, in which case you have illegally distributed IBM copyright code without our written permission. Which way do you want this?"

I'm sure we all remember how quickly Darl backed down from that one.

;o)

The point being, though, that IBM provided the court with a wonderful, concise, clear and perfectly understandable summary of each file they asserted had been released only under the GPL.

IBM understood that "less is more". They were specific, they were concise, they left zero room for doubt.

Then we have this filing by SCO. Boxes of it. Thousands of pages, hundreds of discrete instances. Compare and contrast the two different approaches by these legal teams. One seem to be calm, collected, efficient in thought and word and deed. The other seems to be full of showmanship and shutzpah but a little light on damning evidence. OK, so those of us who have followed this story from the very beginning will know that this is "par for the course".

But TSG behave as though they want this case to go to trial. Obviously they plan to call witnesses like Sam Palmisano to the court to testify and hope that publicly humiliating him there [or trying to] will cause IBM to fold. Or perhaps they hope that they can bamboozle a jury into believing that they have substance in their case.

If so, they may be in for a rude awakening. There's another adage given to people who have to make pitches or presentations to senior management or clients:

1. Tell 'em what you're going to be talking about.

2. Tell 'em.

3. Tell 'em what you've just told them [summarize].

4. Shut up.



I suspect [and hope] that the reason TSG continue this approach of filing documents under seal, of spinning press reports [can't recall the last time IBM made a press announcement over this case] is because they have no case.

Let's hope so.

[ Reply to This | # ]

Methods and Concepts
Authored by: Anonymous on Thursday, December 29 2005 @ 11:05 AM EST

Lotus won such a case:

>>
Lotus Development Corp. gained a significant victory Thursday when a federal
judge in Boston ruled that its copyright had been infringed by competitors whose
software imitates the distinctive appearance of Lotus's 1-2-3 spreadsheet
program.

The case, which Lotus brought against two of its small challengers, Paperback
Software International and Mosaic Software Inc., in February 1987, had been
closely watched by the computer industry.

Both Paperback and Mosaic sell $99 spreadsheet programs for IBM and compatible
personal computers that imitate both the appearance and the command set of Lotus
1-2-3, the best-selling spreadsheet program.

The Lotus software lists for $495.
<<

http://lpf.ai.mit.edu/Links/prep.ai.mit.edu/look-and-feel.events

Furthermore, these types of cases are not uncommon, and the verdicts can go
either way:

- Ashton-Tate filed a lawsuit against Fox Software

- Apple filed lawsuits against both Microsoft Corp. and Hewlett-Packard Co.,
saying the companies illegally appropriated the "look and
feel"

- Sun sued msft over msft's version of java.

- Nintendo argued that Atari violated its patent by reverse-engineering a chip
that is necessary to make the game software play in a Nintendo player.


Am I comparing apples and oranges?

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All I Want For Christmas is a P.S.J.
Authored by: Anonymous on Friday, December 30 2005 @ 01:43 PM EST
How soon can we expect IBM's motions to throw out SCO's ridiculous claims for
which they still have not provided any evidence?

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SCO Sues Wrong IBM
Authored by: Anonymous on Monday, January 02 2006 @ 11:58 PM EST
"IBM" used to be just the anacronym for "International Business
Machines" which was then the name of the corporation but its been way more
than 10 years since they legally changed their name to IBM. IBM now just means
IBM. However, in SCO's cover page they are suing "International Business
Machines" which no longer exists... only IBM exists now.

[ Reply to This | # ]

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