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| Transcript of the December 13, '05 Hearing, SCO v. IBM |
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Wednesday, January 18 2006 @ 05:38 PM EST
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We have obtained the transcript [PDF]for the December 13, 2005 hearing, in which SCO and IBM lawyers argued SCO's motion, trying, in effect, to get Judge Kimball to overrule Judge Wells. The subtext is they wouldn't mind some more delay, I gather. You'll remember the issue was Linux developers' notes and papers. SCO wanted more, more, more, and Wells wouldn't give it to them. So SCO asked her to reconsider and simultaneously went to Kimball with the thought that he might change her mind. Ted Normand, the SCO attorney arguing this motion, admits as much. As for David Marriott's arguments, they stand as a template for how to tell the court that the other side is telling stories instead of the truth, the whole truth and nothing but the truth, without being in any way impolite about it. It's really an enjoyable read, particularly if you read it after reading Normand's opening remarks, by which time your blood will be boiling as you note time after time where you see him fudge the way it really was, according to your memory. At least, that is what happened to me. I don't need to make a list for you, though, this time, because Marriott does it. Just read it and enjoy the knowledge that we know how this one turned out. IBM prevailed. For those of you on dialup, we've divided the transcript into three sections: Part 1, Normand opens
Part 2, Marriott responds
Part 3, Normand replies
Enjoy! If anyone could do a text or HTML of this PDF, I'd appreciate it very much. If you can, leave a comment here please, so we don't duplicate effort. And when you send me your work, in the email can you please tell me if you wish credit and if so, by name or handle? Thank you.
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| Authored by: Chris Lingard on Wednesday, January 18 2006 @ 05:42 PM EST |
PLease post in HTML, and put in those links. But is you cannot, post it
anyway.
[ Reply to This | # ]
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| Authored by: Pop69 on Wednesday, January 18 2006 @ 05:53 PM EST |
Still reading but I find it interesting that in 7-3 to 7-7 SCO seems to be
claiming they have identified "verbatim copies of source code" among
the "more than 217 technologies".
After they last showed source code and how quickly its' descent was tracked it's
no wonder that they filed it under seal.[ Reply to This | # ]
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| Authored by: Trollsfire on Wednesday, January 18 2006 @ 05:59 PM EST |
Please post any corrections here.
--Trollsfire [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 18 2006 @ 06:13 PM EST |
I have the Transcripts OCR'd to RTF & html.
I will email them to Pamela[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 18 2006 @ 06:44 PM EST |
When does what a lawyer tells the court step over the line from agressive
advocacy to lying?
[ Reply to This | # ]
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| Authored by: knew on Wednesday, January 18 2006 @ 08:08 PM EST |
Pages 1 through 15 done (from part 1), working on pages 16 through 22 (the rest
of part 1)[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, January 19 2006 @ 12:02 AM EST |
Is it me or does the part 3 pdf only have 1 page? Might just be me just making
sure... can't wait to read the ending.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, January 19 2006 @ 12:42 AM EST |
SCOG, page 13
...to such methods and concepts by virtue
of
Unix System V ... which under SCO's contract theory are
protected
technologies.
That's an interesting statement to make
considering the
contract language. It seems to me SCOG is attempting to
pull
in "trade secrets" again, not copyright.
First off, I believe SCOG
itself admited there were no
longer any trade secrets in UNIX during one of the
court
hearings.
Secondly, if my memory serves me correct, there is a
clause in the contract between AT&T and IBM which allowed
IBM to share the
"secret" once the secret was no longer a
secret.
RAS [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, January 19 2006 @ 01:19 AM EST |
"I don't have any idea, Your Honour, as to what's in SCO's mind."
Classic quote.[ Reply to This | # ]
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| Authored by: webster on Thursday, January 19 2006 @ 01:33 AM EST |
p. 4 Line 6. Outright misapprehension by Norman right out of the gate while
they were still within smellin' range of each other! What brass...!
Judge then asks about the standard of review. Norman dances around "clear
error" if she missed the issue, but is forced to admit the "abuse of
discretion" standard if she didn't. It is great to have a Judge pin your
opponent down. IBM sits and smirks, "Thank you, Judge. You did it about
as good as we could." p. 5, top.
Norman then outlines his speech. He talks about IBM's development sandbox and
the search that will lead them to specify the theft of methods and concepts from
AIX, Dynix, and SYS V. It is speculative. He talks about admissions in IBM
documents and evidence beyond experts.
Then astoundingly Norman stresses how code by code comparisons by experts is
insufficient and doesn't help their case. For this reason they need all the
documents possible to find admissions and indications that IBM did indeed
transfer methods and concepts.
He then goes into the burden to IBM argument. The Burden is IBM's fault for
being so active in Linux. He argues that IBM had a repository to produce all
that AIX interim code so these further materials should be no worse. He says
that "a fast one has been pulled." p. 16, l. 13.
He than discusses SCO diligence. I just love it when opponents anticipate or
specifically repeat and refute my arguments. That means they hit home. He
confirms unwittingly that they didn't ask for the stuff and that they are now
late. He then trifles with the magistrate court's interpretations of requests
and orders. Why go there? They stress to the judge that the magistrate hasn't
seen anything their way, so why should you, your honor! They should just stick
to what they need and why. Judges are loathe to contradict one another
especially when they have consulted and agreed. But let's give SCO credit: they
are either poor judges, incorrigible, or desperate.
He then repeats the chronology with interpretation that the magistrate judge
says didn't happen.
After this IBM could have said,
*"Your Honor, we accept Magistrate Wells interpretations of what happened
and what she ordered. She ought to know. They can not change the record. They
can not change the facts. They can't argue that she abused her discretion if
they can't even agree on the facts. We submit." *
Marriott next. Can't wait.
---
webster
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| Authored by: Anonymous on Thursday, January 19 2006 @ 01:55 AM EST |
Let me see, It is about Linux.
There is a briefcase full of evidence.
Millions of lines of code have been copied. (how many blank lines are there in
the source code?)
It is about copyrights. (Oh, that concerns another company)
It is not about Linux, it is about breach of contract.
What does the contract say, IBM owns the code.
SCO has an amendment to a contract with a different firm, that gives them more
rights. No one has a copy of that amendment. The other firm has no idea how SCO
arrived at this. Which SCO are we talking about?
It is about Linux, and AIX and Dynix. We want what we have wanted all along,
everything.
'C++, we own that too.'
After reading the transcript, I wonder if the plaintiff's attornies know what
this lawsuit is about. Has IBM figured out what they they did to bring this upon
themselves?
Just maybe, this is a senario for a new soap opera being developed.
Sorry it is late.
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| Authored by: Anonymous on Thursday, January 19 2006 @ 02:07 AM EST |
Could/should GL put up a page with the 217 infractions, and a way to post prior
art, and other midigating infomation on these?
We could include such things as where these can be found in BSD and other OSs,
Links to press releases putting things into the public domain, etc.
Yes I am aware it is a lot of work.
Seems worth it though.
Dennis
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| Authored by: elderlycynic on Thursday, January 19 2006 @ 07:13 AM EST |
I was flabberghasted that the lead lawyer for SCO
would start off with the following in response to
Kimball's obvious first question. It isn't the first
time that Kimball has started with that very question,
either.
THE COURT: Tell me why I shouldn't uphold her order
and tell me what your standard of review is.
MR. NORMAND: I think that the standard of review is
the extent to which the Court concluded that she has
not addressed an issue that the Court agrees should
be raised to a level, if she has not addressed the
issue -- the question is whether her failure to
address the issue was clear error. If you find that
she has addressed the issue, I think that IBM argues
that she has at least implicitly addressed the issue.
If you conclude that she has addressed the issue, the
question is whether she resolved it in a way that was
abuse of discretion.
That is not English, and it is not comprehensible.
His subsequent diatribe was better, and obviously
prepared, but surely he prepared for that question?
If not, why not?
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| Authored by: Anonymous on Thursday, January 19 2006 @ 07:55 AM EST |
I noticed an interesting difference between parts I and II. Mr. Marriott made
lots of cross references to previous transcripts and rulings, backing his
arguments with objective "and you can read it yourself, Your Honor, at this
specific place" kinds of facts. If Mr. Normand did this at all (I may have
missed one or two) it certainly wasn't to anywhere near the degree.
Now of course, Mr. Marriott knew Judge Kimball was going to take this under
advisement and review it all. And he'd have the transcript from this hearing,
with all those helpful pointers from Mr. Marriott back to the other documents.
Seems like a great way to construct your argument in such a way that it's solid
long after you've stopped speaking and left the courtroom.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 20 2006 @ 01:21 AM EST |
When I view the transcript (and other PDFs at Groklaw)
the Acrobat Reader plug-in shows the pages 4-up,
which is very difficult to read. I'm using
Firefix 1.5B2.
Are the images fixed 4-up in the source file, or is
this Acrobat Reader trying to be nice?
I couldn't find any obvious feature in Acrobat
(at least the plug-in) to control N-up-ness.
Thanks in advance for any help![ Reply to This | # ]
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| Authored by: mwexler on Friday, January 20 2006 @ 12:46 PM EST |
On page 9, Lines 4 and 5 they talk about "technologies at issue were copied
from Unix System V, AIX or Dynix." But in the next paragraph they talk
about code comparison's with AIX or Dynix, but don't mention System V. Why are
they so specific in one paragraph about mentioning System V, but in the next
they leave it out entirely.
And why do they think its unlikely they IBM will admit that code they
contributed to Linux came from AIX or Dynix. There are many cases where they
have publicly admitted it.
[ Reply to This | # ]
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| Authored by: DaveJakeman on Monday, January 23 2006 @ 10:59 AM EST |
Some random thoughts/impressions:
Kimball's initial questioning: "What are you playing at, you
weasels?"
Oh, 217 technologies! Not 217 instances of copying code, but 217 technologies!
Phew! The whole world is still against SCO, as well as the Martians.
SCO say they have already found what they need from the 20 Linux programmers, so
why do they need more? Have they found what they need, or not?
SCO downplays the importance of the code-by-code comparison - expect to see
little more than coincidental matching of common coding constructs and matches
of whitespace.
SCO, the master puller of fast ones, accuses IBM of pulling a fast one. Love
it. Truly sig-worthy.
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.[ Reply to This | # ]
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