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IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Monday, February 13 2006 @ 09:24 PM EST

Some folks just dote on mystery. SCO must be one of them. It now turns out that, according to IBM's latest Motion to Limit SCO's Claims Relating to Allegedly Misused Material [PDF] and the Memorandum in Support [PDF], while SCO did list 294 items on its final list of allegedly misused material by the December 22, 2005 deadline, it failed to provide "basic specificity" on 201 of them. So IBM would like the court to limit SCO to the 93 items it actually provided particularized information for. Here's IBM's attached Exhibits [PDF].

Exhibit A is Todd Shaughnessy's Declaration from May of 2005. Exhibit B is a letter from IBM to SCO, pointing out what was missing on SCO's list on the interim disclosure that they'd need to cure by the 22nd. So, since December 5, SCO has known that IBM was going to file this motion, unless they finally coughed up with specificity how IBM has misused its materials. For example, it tells SCO that for most of the list, "SCO still fails to disclose (1) files and lines of code in Linux; (2) files and lines of code in AIX or Dynix; and (3) files and lines of code in UNIX System V." Worse, even when SCO does list a line of any of the three, it fails to adequately provide "any identification of the lines of Unix System V code from which the allegedly contributed material is alleged to derive or result."

After nearly three years of massive discovery. No wonder SCO filed under seal. They were afraid we'd die laughing.

IBM isn't laughing. They are as serious as a heart attack. This from the motion:

As this Court has recognized, SCO has made a plethora of public statements accusing IBM of misconduct, while offering no support for its allegations. The Court deferred IBM’s motions for summary judgment but ordered SCO to particularize its claims, once and for all, in the Final Disclosures. SCO has declined. For 201 of its 294 Items, SCO fails to identify the allegedly misused material with the most basic detail. SCO’s failure to provide even the most basic specificity for its claims is extraordinarily prejudicial to IBM and should not be allowed. Thus, IBM respectfully requests that the Court limit SCO’s claims to the 93 Items for which SCO provides detail sufficient to identify both the allegedly misused material and the allegedly improper source of that material.

This at the same time Intel has just told the court SCO wasn't truthful. Well, now, how's that for timing?

So, what is this about? SCO has tried for a long time to keep IBM in the dark, nearly three years now. IBM is telling the court that they shouldn't be allowed to game the system. And here's what is at stake, from the memorandum:

SCO contends generally that IBM misused the Unix System V code (which SCO purports to own) and the AIX and Dynix code (which IBM owns, but SCO purports to control). According to SCO, IBM improperly “dumped” Unix System V, AIX and Dynix into Linux. Given the scope of the code implicated by SCO’s claims, however, it is practically impossible to assess and defend against them without knowing exactly which versions, files and lines of code SCO contends are at issue. As the Court will recall, there are numerous versions of Unix System V, AIX, Dynix and Linux, and each version consists of thousands of files and millions of lines of code. For example, Unix System V R4.2 ES/MP consists of 22,222 files and 7,339,157 lines of code; AIX 4.3.3 for Power consists of 111,964 files and 138,420,329 lines of code; and Linux 2.6.15 consists of 18,811 files and 7,290,070 lines of code.

SCO’s failure to specify its claims leaves IBM no way to defend itself except by undertaking a massive analysis, potentially of every single version, file and line of Unix System V code, every single version, file and line of code in AIX and Dynix, and every single version, file and line of code in Linux.5 As SCO well knows, there is no way IBM could conduct this analysis in several years, let alone in the several months afforded by the scheduling order. Unlike SCO, IBM does not know what SCO claims. If tolerated, SCO’s gamesmanship would give IBM and its experts no meaningful opportunity to evaluate in advance the claims SCO may choose to trot out in its expert reports, in opposition to IBM’s summary judgment motions and/or at trial.

IBM is asking the court for what IBM needs to defend itself and it is asking the court to force SCO to quit playing games. The court is certain to respond in some fashion. So either IBM will finally get the specifics from SCO, or SCO's list will be whittled down. IBM's memorandum ends like this:

As described above, in spite of the benefit of almost three years time and numerous requests from IBM and instructions from the Court, SCO has repeatedly refused to identify with specificity the basis of its claims. The resolution of this case should not be delayed further to provide SCO yet another opportunity. It has had more than enough opportunity to comply with the Court’s orders. As IBM has previously advised the Court, we believe it is in IBM’s interest and in the public interest to bring this case to a close as soon as possible.

In short: enough is enough.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

___________________________

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.

_________________________

IBM’S MOTION TO LIMIT SCO’S
CLAIMS RELATING TO ALLEGEDLY
MISUSED MATERIAL

(ORAL ARGUMENT REQUESTED)

Civil No.: 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_____________________________

Defendant/Counterclaim-Plaintiff International Business Machines Corporation (“IBM”), through counsel, respectfully submits this motion, pursuant to Rules 1, 26, 30 and 37 of the Federal Rules of Civil Procedure, to limit the scope of SCO’s claims to the Items of allegedly misused material disclosed with sufficient specificity in SCO’s December 22, 2005 Disclosure of Material Allegedly Misused by IBM (the “Final Disclosures”).

As this Court has recognized, SCO has made a plethora of public statements accusing IBM of misconduct, while offering no support for its allegations. The Court deferred IBM’s motions for summary judgment but ordered SCO to particularize its claims, once and for all, in the Final Disclosures. SCO has declined. For 201 of its 294 Items, SCO fails to identify the allegedly misused material with the most basic detail. SCO’s failure to provide even the most basic specificity for its claims is extraordinarily prejudicial to IBM and should not be allowed. Thus, IBM respectfully requests that the Court limit SCO’s claims to the 93 Items for which SCO provides detail sufficient to identify both the allegedly misused material and the allegedly improper source of that material.

For the foregoing reasons, and as set forth in detail in the accompanying memorandum filed and served herewith, IBM respectfully requests that the Court enter an Order limiting the scope of SCO’s claims relating to allegedly misused material to the following Items in SCO’s Final Disclosures: Item Nos. 1, 113-142, 150-164, 183-185, 194-203, 205-231, and 272-278.

DATED this 13th day of February, 2006.

Snell & Wilmer L.L.P.

/s/Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

2

Of Counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Jennifer M. Daniels
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

3

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of February, 2006, a true and correct copy of the foregoing was hand-delivered to the following:

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

and a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Todd M. Shaughnessy

4

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

___________________________

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.

_________________________

IBM’S MEMORANDUM IN
SUPPORT OF MOTION TO LIMIT
SCO's CLAIMS RELATING TO
ALLEGEDLY MISUSED MATERIAL

(ORAL ARGUMENT REQUESTED)

Civil No.: 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_____________________________

Defendant/counterclaim-plaintiff International Business Machines Corporation (“IBM”) respectfully submits the following memorandum in support of its Motion to Limit SCO’s Claims Relating to Allegedly Misused Material. By this motion, IBM seeks to limit the scope of SCO’s claims to the Items of allegedly misused material disclosed with sufficient specificity in SCO’s December 22, 2005 Disclosure of Material Allegedly Misused by IBM (the “Final Disclosures”).

Preliminary Statement

As this Court has recognized, SCO has made a plethora of public statements accusing IBM of misconduct, while offering no support for its allegations. The Court deferred IBM’s motions for summary judgment but ordered SCO to particularize its claims, once and for all, in the Final Disclosures. SCO has refused. Although all 294 Items identified in the Final Disclosures fail to provide the level of specificity sought by IBM and required by the Court, the lack of specificity for 201 of the 294 Items renders it impossible as a practical matter for IBM to defend itself. For those 201 Items, SCO fails to identify the allegedly misused material with the most basic detail. SCO’s failure to provide even the most basic specificity for its claims is extraordinarily prejudicial to IBM and should not be allowed. Thus, IBM respectfully requests that the Court limit SCO’s claims to the 93 Items for which SCO provides detail sufficient to identify the allegedly misused material.

Following SCO’s repeated failure to respond to IBM’s discovery requests, Magistrate Judge Wells twice ordered SCO to respond to the requests with specificity. In an order dated December 12, 2003, Magistrate Judge Wells ordered SCO to “identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM”. (12/12/2003 Order ¶ 4.) Again, in an order dated March 3, 2004, Magistrate Judge Wells ordered SCO “to

2

provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix” and “to provide and identify all specific lines of code from Unix System V from which IBM’s contributions from AIX or Dynix are alleged to be derived”. (03/03/04 Order ¶¶ I.1-I.3.) SCO failed to comply, and IBM moved for summary judgment.

After deferring IBM’s summary judgment motions, this Court likewise required SCO to particularize its claims. In an order dated July 1, 2005, the Court adopted (over SCO’s objection) an IBM proposal to set interim and final deadlines for the disclosure of all allegedly misused material. The Court set October 28, 2005, as the “Interim Deadline for Parties to Disclose with Specificity All Allegedly Misused Material Identified to Date and to Update Interrogatory Responses Accordingly”. (07/01/2005 Order ¶ III.) The Court set December 22, 2005, as the “Final Deadline for Parties to Identify with Specificity All Allegedly Misused Material”. (Id.)

Although IBM had already produced hundreds of millions of lines of source code (which SCO could have used to comply with the Court’s orders), SCO demanded that IBM produce hundreds of millions of lines of additional code, programmers’ notes and design documents. IBM produced the equivalent of tens of millions of pages of these materials. As described in the May 3, 2005 Declaration of Todd M. Shaughnessy, the production involved more than 4,700 hours of work from more than 400 IBM employees, not including the time spent by IBM counsel and consultants. (05/03/2005 Shaughnessy Decl. ¶ 5 (attached as Exhibit A).)

SCO’s interim disclosures nevertheless fell far short of the specificity required by the Court. SCO failed, for example, to describe all of the allegedly misused material by version, file and line of code. SCO refused to disclose versions, files and/or line numbers for the code at

3

issue with respect to the 201 Items in dispute on this motion. IBM promptly brought these deficiencies to SCO’s attention and asked that SCO correct them in its Final Disclosures. (See 12/5/05 Letter from T. Shaughnessy to T. Normand, a true and correct copy of which is attached as Exhibit B.) Because it is practically impossible to defend against imprecise allegations, IBM advised SCO it would ask the Court to preclude SCO from pursuing any claims regarding allegedly misused material not properly disclosed in the Final Disclosures, which we asked SCO to provide in an electronic format that would allow efficient analysis by IBM. (See id. at p. 2.) SCO did not respond to that letter, or otherwise object to IBM’s request.

Rather than correct the shortcomings in SCO’s interim disclosures, the Final Disclosures (which SCO declined to provide in an electronic form, hindering IBM’s analysis) merely compound them, by challenging even more items without specifically describing them. None of the 294 Items in the Final Disclosures provide the level of detail sought by IBM and required by the Court. Remarkably, for 201 of the 294 Items, SCO does not provide enough particularity even to identify the versions or line numbers for the allegedly misused material. (See Item Nos. 2-112, 143-149, 165-182, 186-193, 204, 232-271, 279-294.)1 In fact, no versions, files or lines of Unix System V code are identified; no versions, files or lines of Dynix or AIX code are identified as misused; and no specific versions or lines of Linux code are identified. 2 For these

4

201 Items, SCO comes nowhere close to providing the information that IBM needs to defend itself and that the Court ordered SCO to provide.3

As is further discussed below, SCO should now finally be precluded from proceeding any further on those 201 Items for which it has not provided even the most basic identifying information.

Argument

I. THE FINAL DISCLOSURES LACK THE REQUISITE SPECIFICITY.

At this point, IBM has been asking SCO for nearly three years to identify with specificity the material that IBM is alleged to have misused. Specifically, IBM has requested SCO to specify the versions, files and line numbers of the allegedly misused material. The Court has ordered SCO no less than three times to do so. Yet, as described above, SCO has refused. While the sheer magnitude of the materials provided with the Final Disclosures gives the false impression of detail, the 201 Items at issue on this motion fail to identify any versions, files or lines of any Unix System V, AIX or Dynix code as being misused. The Items at issue identify Linux files in most cases (albeit inconsistently and confusingly) but nowhere specifically identify any versions or lines of Linux code; in some cases IBM simply is referred to a website. (See, e.g., Item Nos. 9, 11, 18, 98, 178.)

5

Item Nos. 271 and 294 of the Final Disclosures illustrate the problem. Item No. 271 claims that “AIX and Dynix/ptx patented technologies, based on UNIX System V, were improperly released for the benefit of, and use by, the Linux development community in developing Linux.” SCO does not identify a single version, file or line of Unix System V, AIX, Dynix or Linux technology that IBM is alleged to have misused. Instead, SCO merely attaches 34 patents. None of these 34 patents lists any versions, files or lines of code. There is, therefore, no way of telling what, if any, Unix System V, AIX, Dynix or Linux technology SCO contends was misused. Similarly, SCO’s Item No. 294 alleges that IBM has engaged in “[e]xtensive use of ptx programming experience (and a fortiori exposure to UNIX System V) in creating numerous Linux kernel patches”. In support of this claim, SCO attaches a computer disk containing 33,000 single-spaced pages of proposed code contributions. Nowhere does SCO identify with specificity a single version, file or line of Unix System V, AIX, Dynix or Linux code. Here again, IBM is left to guess as to SCO’s claim.

SCO’s failure to specify its claims is especially egregious because it has had the information necessary to do so since nearly the beginning of this lawsuit. SCO was founded as a Linux company, and Linux source code has been available for download from the internet since the inception of Linux—long before the commencement of this lawsuit. SCO purports to own all Unix System V code and, thus, has ready access to all of the System V code. Further, IBM produced millions of lines of AIX and Dynix source code to SCO almost two years ago and supplemented the production nearly nine months ago with hundreds of millions of additional lines of code, including all iterations and versions of such code maintained by IBM, and thousands of programmers’ notes and design documents. Despite requiring IBM to devote

6

considerable resources to providing SCO with this information, SCO identifies lines of AIX or Dynix code for only one of the 201 Items at issue and fails to make any allegation of misuse in relation to that code. 4

II. SCO’S GAMESMANSHIP IS EXTREMELY PREJUDICIAL TO IBM.

The shortcomings in the Final Disclosures are not only pervasive, but they also result in extraordinary prejudice to IBM. The lack of particularity in the Final Disclosures cloaks SCO’s claims in uncertainty and makes it practically impossible for IBM to defend itself.

SCO contends generally that IBM misused the Unix System V code (which SCO purports to own) and the AIX and Dynix code (which IBM owns, but SCO purports to control). According to SCO, IBM improperly “dumped” Unix System V, AIX and Dynix into Linux. Given the scope of the code implicated by SCO’s claims, however, it is practically impossible to assess and defend against them without knowing exactly which versions, files and lines of code SCO contends are at issue. As the Court will recall, there are numerous versions of Unix System V, AIX, Dynix and Linux, and each version consists of thousands of files and millions of lines of code. For example, Unix System V R4.2 ES/MP consists of 22,222 files and 7,339,157 lines of code; AIX 4.3.3 for Power consists of 111,964 files and 138,420,329 lines of code; and Linux 2.6.15 consists of 18,811 files and 7,290,070 lines of code.

7

SCO’s failure to specify its claims leaves IBM no way to defend itself except by undertaking a massive analysis, potentially of every single version, file and line of Unix System V code, every single version, file and line of code in AIX and Dynix, and every single version, file and line of code in Linux.5 As SCO well knows, there is no way IBM could conduct this analysis in several years, let alone in the several months afforded by the scheduling order. Unlike SCO, IBM does not know what SCO claims. If tolerated, SCO’s gamesmanship would give IBM and its experts no meaningful opportunity to evaluate in advance the claims SCO may choose to trot out in its expert reports, in opposition to IBM’s summary judgment motions and/or at trial.

III. THE ONLY APPROPRIATE REMEDY FOR SCO’S GAMESMANSHIP IS TO LIMIT ITS CLAIMS TO THE DISCLOSED ITEMS FOR WHICH SCO PROVIDED SUFFICIENT SPECIFICITY.

SCO’s failings regarding the Final Disclosures do not occur on an empty set. They come following repeated discovery requests by IBM and three separate orders of this Court. Indeed, they come in derogation of this Court’s orders. The appropriate remedy for a party’s failure to comply with an order requiring the disclosure of the party’s claim is an order precluding the party from pursuing undisclosed elements of the claim.

Many courts have held that a party’s claim must be limited to exclude elements of the claim for which the party has failed to provide appropriate, court-ordered discovery. See Imax

8

Corp. v. Cinema Tech., Inc., 152 F.3d 1161, 1167 (9th Cir. 1998) (affirming district court’s decision “refusing [under Fed. R. Civ. P. 26(e)] to consider any trade secret material that was not specifically listed in haec verba in [plaintiff’s] Fourth Supplemental Responses”, because defendant “could not be expected to prepare its rebuttal to [plaintiff’s] trade secrets claim without some concrete identification of exactly which [elements] alleged were incorporated into [defendant’s] own projector system”); Kang v. Lee, No. 96 Civ. 1145, 1997 WL 669787, at *3 (S.D.N.Y. Oct. 27, 1997) (ruling that “[a]s a result of Defendant’s failure to comply with Plaintiff’s discovery demands, even after this Court directed him to do so, he has been precluded from offering any evidence at trial relating to matters raised in Plaintiff’s unanswered interrogatories and unsatisfied document requests”).

Modifying the Scheduling Order either to afford IBM more time to evaluate SCO’s claims or to provide SCO an opportunity to amend its disclosures would not be an adequate solution to the lack of specificity in the Final Disclosures. It would require years for IBM to chase all of the facts relating to the hundreds of millions of lines of code implicated by SCO’s claims. As described above, in spite of the benefit of almost three years time and numerous requests from IBM and instructions from the Court, SCO has repeatedly refused to identify with specificity the basis of its claims. The resolution of this case should not be delayed further to provide SCO yet another opportunity. It has had more than enough opportunity to comply with the Court’s orders. As IBM has previously advised the Court, we believe it is in IBM’s interest and in the public interest to bring this case to a close as soon as possible.

9

In short: enough is enough. SCO should now finally be precluded from proceeding any further on those 201 Items for which it has not provided even the most basic identifying information. (See Item Nos. 2-112, 143-149, 165-182, 186-193, 204, 232-271, 279-294.)

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court enter an order limiting the scope of SCO’s claims relating to allegedly misused material to the following Items in SCO’s Final Disclosures: Item Nos. 1, 113-142, 150-164, 183-185, 194-203, 205-231, and 272-278. DATED this 13th day of February, 2006

SNELL & WILMER L.L.P.

/s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff

Of counsel:

INTERNATIONAL BUSINESS MACHINES CORPORATION
Jennifer M. Daniels
Alec S. Berman
[address, phone]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


1 Although SCO does provide versions and line numbers for the files identified in Item No. 204, SCO makes no claim as to any misuse of the code identified in Item No. 204. Under the heading “Improperly Disclosed Code, Method, or Concept”, SCO states: “N/A”. (See infra note 4.)

2 Although SCO identifies certain Linux files (but not specific versions or lines of code) as to the 201 Items in dispute, a number of the files are identified unclearly and inconsistently. In some cases, SCO seems simply to refer IBM to a website. (See, e.g., Item Nos. 9, 11, 18, 98, 178.)

3 The shortcomings in the Final Disclosures are not limited to failing properly to identify the versions, files and lines of code of the relevant UNIX System V, AIX, Dynix and Linux material. SCO also fails to provide, for example, adequate information as to when and how the allegedly misused material was ever disclosed, by SCO or anyone else; details as to the origin of the material, including when, where and by whom the material was created; and all products in which the material is included, or on which the material is based.

4In Item No. 204, SCO provides a comparison of System V source code and Dynix source code to support the unremarkable, and uncontested, proposition that the Dynix operating system contains certain code modified or derived from System V source code; neither party contests the fact that IBM (through Sequent) had a valid license to include System V source code in Dynix. In fact, as noted above, SCO makes no claim of misuse of the material identified in Item No. 204. (See supra note 1.)

5 Based on SCO’s claims, the investigation would have to include, among other things, an inquiry into the origin of the code, the value of the code, whether SCO distributed the code under the terms of the General Public License, whether the code was developed to comply with publicly known standards, whether the code is dictated by externalities, whether the code is merely an unprotectable idea, whether the code ever shipped without a required copyright notice, and whether the code is otherwise in the public domain.

10

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of February, 2006, a true and correct copy of the foregoing was hand-delivered to the following:

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

and a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Todd M. Shaughnessy

11

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

EXHIBIT A

1- 16

EXHIBIT B

17

[Snell & Wilmer letterhead]

December 5, 2005

VIA FACSIMILE AND U.S. MAIL

Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

Re: SCO v. IBM; IBM v. SCO

Dear Ted:

We have completed a preliminary analysis of SCO's interim disclosures and supplemental interrogatory responses pursuant to the Court's order of July 1, 2005. As stated in IBM's memorandum in opposition to SCO's objection to Magistrate Judge Wells' order dated October 12, 2005, SCO's disclosures and interrogatory responses fall far short of SCO's obligations. We ask that SCO remedy these shortcomings no later than December 22, 2005, when it submits its final disclosures and updates its interrogatory responses.

As you know, IBM's discovery requests, and the Court's orders called for SCO to disclose the allegedly misused material with specificity. For example, SCO was required to identify the allegedly misused material by version file and line of code. In addition, to the extent SCO contends IBM has infringed its copyrights, SCO was required to identify and match up the allegedly infringing and allegedly infringed material by version, file and line of code. To the extent SCO contends that IBM has breached its contractual obligations by contributing code to Linux, SCO was required to identify the material alleged to have been contributed improperly by version, file and line of code and to the extent the allegedly contributed material is not Unix System V code but is in any sense alleged to have been based on or resulted from Unix System V code, the version, file and line of Unix System V code from which the allegedly contributed material is alleged to derive or result.

Despite IBM's requests and the Court's orders, SCO's interim disclosures and interrogatory responses fail to specifically disclose all of the allegedly misused material as required. For most of the allegedly misused material, SCO still fails to

18

Ted Normand
December 5, 2005
Page 2

disclose (1) files and lines of code in Linux; (2) files and lines of code in AIX or Dynix; and (3) files and lines of code in UNIX System V. Furthermore, in the few instances where SCCO does identify specific lines of Linux, AIX, or Dynix code as allegedly contributed material, SCO generally fails adequately to provide any identification of the lines of Unix System V code from which the allegedly contributed material is alleged to derive or result. Any such linkage to Unix System V code should be done in an ambiguous manner -- for example, through tables listing and matching up file names and line numbers between the allegedly misused non-Unix System V code, and Unix System V code.

Moreover SCO's interim disclosures and supplemental interrogatory responses are unclear as to how they relate to SCO's prior interrogatory responses. It is not clear, for example, whether SCO's latest disclosures are cumulative or merely supplement its prior disclosures, especially since there are inconsistencies among SCO's various responses. SCO's interim disclosures are likewise unclear as to how the allegedly misused material relates to SCO's different causes of action for example, it is unclear whether certain of the allegedly misused material relates to SCO's contract claims, SCO's copyright claims, IBM's claim seeking a declaration of noninfringement or a combination of these claims.

To avoid confusion, comply with the Court's orders and avoid unnecessary motion practice, SCO should (1) provide the requisite specificity in its final disclosures; (2) make its final disclosures and updated interrogatory responses cumulative; and (3) make clear to which of the claims the allegedly misused material relates. As IBM understands the Court's orders, SCO may not challenge any allegedly misused material not properly disclosed in SCO's final disclosures. IBM intends to ask the Court to preclude SCO from pursuing any claims regarding allegedly misused material not properly disclosed on or before December 22, 2005.

Finally, we reiterate our previous request that SCO provide its disclosures in a usable electronic format, just as it did with its privilege log. We do not believe there is any reason it cannot do so and would prefer not to have to raise this issue with the Court at the December 13 hearing.

19

Ted Normand
December 5, 2005
Page 3

Sincerely, __[signature]___

Todd M. Shaughnessy

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

20


  


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Corrections
Authored by: Sawdust Bytes on Monday, February 13 2006 @ 10:13 PM EST
Please, place corrections here.

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IBM Asks Court to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Steve Martin on Monday, February 13 2006 @ 10:17 PM EST
Memorandum in Support is transcribed, on the way to PJ.


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

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Process Question
Authored by: jdg on Monday, February 13 2006 @ 10:19 PM EST
IBM’S MOTION TO LIMIT SCO’S
CLAIMS RELATING TO ALLEGEDLY
MISUSED MATERIAL

(ORAL ARGUMENT REQUESTED)

Does this issue need to be briefed, or is this something that the judge can
decide to set for an oral hearing based on the record and the material itself?

---
SCO is trying to appropriate the "commons"; don't let them [IANAL]

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Off Topic
Authored by: Sawdust Bytes on Monday, February 13 2006 @ 10:23 PM EST
Please, make links clickable.

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Off Toppic
Authored by: jacks4u on Monday, February 13 2006 @ 10:24 PM EST

The commenter deleted his comment

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In short: enough is enough.
Authored by: mrcreosote on Monday, February 13 2006 @ 10:33 PM EST
Couldn't have said it better myself

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mrcreosote

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Calling it like it is
Authored by: Ninthwave on Monday, February 13 2006 @ 10:34 PM EST
"II. SCO’S GAMESMANSHIP IS EXTREMELY PREJUDICIAL TO IBM."


This is getting good.

---
I was, I am, I will be.

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All 294?
Authored by: Anonymous on Monday, February 13 2006 @ 10:37 PM EST
Although all 294 Items identified in the Final Disclosures fail to provide the level of specificity sought by IBM and required by the Court . .
Does this tidbit from the support memo mean that there is a potential for all 294 pieces to be tossed out, or would IBM specifically have to request that too?

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Decorum, please...
Authored by: egan on Monday, February 13 2006 @ 10:47 PM EST
meaning please, watch your language in your posts to Groklaw.

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IBM puts the gloves back on
Authored by: Anonymous on Monday, February 13 2006 @ 10:48 PM EST
IBM took the gloves off a while back. Here, it seems they've put some gloves
back on, but these gloves are lead-weighted and designed to put a quick end to
the match. And they're already throwing some heavy body blows. Some examples
that leapt out at me, with my translations for some of them.

"SCO’s failure to specify its claims is especially egregious because
it..."

"If tolerated, SCO’s gamesmanship would give IBM and its experts no
meaningful opportunity...."
Has IBM used the word 'gamesmanship' before?

"SCO has repeatedly refused to identify with specificity the basis of its
claims...."
Short and straightforward: 'your honor, they're trying to play you. Dont let
them get away with it.'

" In short: enough is enough."
'Your Honor, this is so clearly egregious and improper behavior on SCO's part
that we're sure you see it too, and that getting really blunt in pointing it out
isnt going to irritate you.'

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IBM will eventually have all of the Items thrown out
Authored by: gnutechguy99 on Monday, February 13 2006 @ 10:57 PM EST
Notice this gem in section 4:

"None of the 294 Items in the Final Disclosures provide the level of detail
sought by IBM and required by the Court"

I suspect IBM has asked for 201 items to be thrown out to test the water, and
then will ask for the remainder to be thrown out.

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IBM Asks Court to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: rm6990 on Monday, February 13 2006 @ 11:27 PM EST
In the footnote on Page 7 of the memorandum in support:

4 In Item No. 204, SCO provides a comparison of System V source code and Dynix source code to support the unremarkable, and uncontested, proposition that the Dynix operating system contains certain code modified or derived from System V source code; neither party contests the fact that IBM (through Sequent) had a valid license to include System V source code in Dynix. In fact, as noted above, SCO makes no claim of misuse of the material identified in Item No. 204. (See supra note 1.)

My favourite part of this whole filing! How dumb can you get?

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"Angels And Ministers Of Grace, Protect Us!"
Authored by: TheBlueSkyRanger on Monday, February 13 2006 @ 11:28 PM EST
Hey, everybody!

Oh....

wow....

Why is it, every time I think SCO can't possibly be any more hot water than they
are already, I'M ALWAYS WRONG?

I will give the judges this much credit--they have given SCO so much rope to
hang themselves...well, SCO is doing such a fine job.

It's getting to the point where at least once in each Groklaw article, my jaw
will literally drop and I'll just stare at the screen. The words filter into my
brain for decompressing and comprehension later.

The nearest analogy I can come up with is that this is Quake in reverse--instead
of one person hunting a variety of enemies, a variety of enemies are hunting one
target. I said before that it's amusing how much this whole scheme has
backfired. It's no longer amusing. It's totally hillarious.

Dobre utka,
The Blue Sky Ranger

"This is about as bad as it's going to get."
--Lane Myers
"Better Off Dead"
just before things do indeed get worse

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The real zingers...
Authored by: Anonymous on Monday, February 13 2006 @ 11:34 PM EST

... are, IMHO, the footnotes.

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'haec verba'
Authored by: AntiFUD on Monday, February 13 2006 @ 11:38 PM EST

I have just finished a cup of 'haec verba' and I think I need a few hours of
sleep or an appendectomy.

I just hate to think what TSCOG need after this - a full [pre]frontal lobotomy?

This filing is the bee's knees - how could TSCOG and their lawyers have failed
to foreseethis ????

PS: the foregoing is designed for MadScientist's erudite diagnosis - surely no
self-respecting lawyer could hazzard a guess on what TSCOG and their lawyers
were thinking when they filed their final listing of allegedly misused
materials!


---
IANAL - But IAAAMotFSF - Free to Fight FUD

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Prediction
Authored by: rsteinmetz70112 on Monday, February 13 2006 @ 11:38 PM EST
I predict the Judge will give SCOG 30 days to connect the dots, then hammer them
for failure to state a claim upon which relief can be granted (because the Judge
doesn't have a clue what SCOG thinks IBM did wrong).

Of course I'm probably wrong.

I'll be very interested to see what IBM uses to get the remaining 93 dismissed.

I'm particularly intrigued by SCOG's reference to patents, since they don't hold
any. I wonder if they are alleging that IBM can't use it's own patents in AIX
and then use them for something else. That is fascinating to me.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

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All those years of Tap-Dancing lessons, wasted.
Authored by: AllParadox on Monday, February 13 2006 @ 11:46 PM EST
"The SCO Group", through counsel, has led a merry chase for the last
several years.

They have tap-danced their' way through and around all sorts of obstacles,
avoiding contamination by the merest breath.

And now, after having access to literally mountains of millions of lines of
code, they have found nothing.

IMHO, I could have wrangled something out of that much information. The
combinations are nearly endless.

Instead ... nothing.

This is very disappointing.

The silence is deafening.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

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So little case law to backup tho?
Authored by: stevem on Monday, February 13 2006 @ 11:48 PM EST
I found it... telling, that IBM's lawyers had so little case law to backup their
arguments. Normally the text is near impossible to read for all the references.

Telling, in that so few others have tried something so brazen!

Having said that my prediction would be for SCO to be given another bite at the
cherry to provide the specificity required beyond which they would have those
claims rejected.


- SteveM

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Dispotive motions allowed?
Authored by: Anonymous on Tuesday, February 14 2006 @ 12:05 AM EST
I know there's still an expert witness discovery date, so I'm a little fuzzy on
whether we've passed the "release the hounds" date for IBM. I thought
not yet.

Or is this different than the PSJ stuff that will put a stake in SCO's heart?

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Could it be...
Authored by: Anonymous on Tuesday, February 14 2006 @ 12:09 AM EST
Could it be that the material that IBM has not requested be thrown out will do
more damage to SCO than IBM? By this I mean code that can be proven to have
either GPL, BSD, or other pedigree that is used in violation of the license
(copyright notices removed, ect) by SCO.

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IBM Asks Court to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Anonymous on Tuesday, February 14 2006 @ 12:30 AM EST
How slow is IBM anyway?
All they need to do is run Anderer's patented comparison tool and all will be
revealed.

:)


---
Are you a bagel or a mous?

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SCO's "Contract Theory of Code Contamination" and SCO's List of Allegedly Misused Material
Authored by: Dave23 on Tuesday, February 14 2006 @ 12:45 AM EST
My main query is this: can we tell yet if the 201 items of allegedly misused
material that IBM wants thrown out make sense if one accepts SCO Group's/BSF's
contract claim of code contamination (aka the "ladder theory")?

Second, has Judge Kimball actually ruled on, or given direction as to how he
views, SCO's contract theory of code contamination?

If the answer to my first question is "yes" and to the second question
is "no" -- then I can see why SCO lawyers and IBM lawyers have been
"talking past" one another throughout Discovery.

Also, if the second answer is "no" -- then I expect that Judge Kimball
will make that ruling rather soon -- IBM would prefer it be made in response to
this motion, now; although it has to be considered in the contract PSJ when IBM
renews it.

If the answer to the second question is "yes" -- that is, Judge
Kimball has telegraphed his ruling on the contract in favor of IBM in his
earlier deferral of the contract PSJ, then SCO Group has indeed been living
under the abuilding gallows for quite awhile now.

Any ambiguous legal waveforms must eventually collapse.

IANAL

---
Gawker

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Slapdash Specificity
Authored by: webster on Tuesday, February 14 2006 @ 01:46 AM EST
.
.
1. Well IBM has been telegraphing their punches, and SCO doesn't duck. IBM
tries to "help" SCO by sending them a letter after the interim
disclosure specifying where SCO needs to be specific. SCO doesn't respond.
They certainly are prolix when they demand discovery. By contrast they gag when
it comes to being specific. To no one's surprise the letter resurfaces.

2. The letter is a way to move things along faster. The judge sees that it
specified and requested what was necessary according to his order. It saves a
round of motions. IBM can say "Don't give them another chance. We gave
them another chance."

3. SCO is putting little effort into this suit. The subpoenas fiasco, and now
this, show a lack of heart. The PIPE Fairy may have signalled that this is not
working the way it had hoped. Let's get out of it somehow.

4. BSF must have a special retainer understanding with SCO. It is about to hit
the fan. All this coming down on Kimball together is going to make him think
that SCO has been trifling the Court. If you don't have something, just say so.
This isn't poker. The dealer has power.

5. The Court can't do anything but strike the unspecific proffers as IBM asks.
I don't know what SCO can say in opposition. The Judge can soon cause some
severe consequences. The first will be to just say no to whatever SCO asks.
Those subpoenas are dead. SCO doesn't get to work on any code anymore either.



---
webster
-----------Free China

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Is there a future
Authored by: Anonymous on Tuesday, February 14 2006 @ 02:48 AM EST
for SCO's lawyers after so many stupidities and demonstrating so little
integrity?

for SCO's management after such a dramatic exposure of incompetence, lying and
cheating?

for SCO's server business?

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SCO's Reply
Authored by: bgrier on Tuesday, February 14 2006 @ 03:05 AM EST
SCO's reply will be something like this: Your Honor, IBM has not provided us
with the material we need to make our claims specific. Please. please order IBM
to turn over the material we need to make these claims specific. Respectfully
yours, SCO.

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Why Linux 2.6.15?
Authored by: Anonymous on Tuesday, February 14 2006 @ 03:24 AM EST
Linux 2.6.15 was released 03-Jan-2006. It seems questionable to quote that
kernel version as being at issue, given how long the litigation has been going
on. Is this strategic, a mistake, or arbitrary?

For example, this kernel is bigger than its predecessors, so it sounds more
impressive in terms of file count and lines. Or, is it simply likely that if
there *were* any infringing contributions to Linux in years gone by, they are
more likely to have been cleansed by now?

Non-issue?

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I have to ask
Authored by: AH1 on Tuesday, February 14 2006 @ 03:46 AM EST
I am not certain if anybody has asked this question before now so I will
apologize in advance for asking it. What are the odds that TSG can successfully
argue that they are inadequately represented in a civil lawsuit if they are the
plaintiffs? Does this answer change given the reputation of their legal team?

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Imagine if you sued Ford
Authored by: Anonymous on Tuesday, February 14 2006 @ 03:52 AM EST
And in your claim, you just said that they'd stolen your design and used it in
"a Ford".

After three years of discovery you finally narrow that down "a Ford
Mustang". But you still refused to say *which* Mustang model from the past
42 years, and which *part* of that Mustang, despite being asked that question
repeatedly by Ford, and ordered to answer it repeatedly by the judge.

You'd be thrown out of court and your lawyer, if complicit in your obstruction,
would have to be risking a referral to their Bar.

Why should it be any different in this case?

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IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Anonymous on Tuesday, February 14 2006 @ 05:09 AM EST
"As IBM has previously advised the Court, we believe it is in IBM’s
interest and in the public interest to bring this case to a close as soon as
possible."

And here I think we are at the heart of the problem. SCO and their lawyers don't
try to win this case. The important thing is to keep the case floating just past
some future date, possible after the Vista release party, and then everything
will crash.

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"Unlike SCO, IBM does not know what SCO claims. "
Authored by: Anonymous on Tuesday, February 14 2006 @ 05:15 AM EST
I wonder [joke,joke] whether that's a typo for "Like SCO, IBM does not know
what SCO claims." At least I think that's a joke.

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I just love Footnotes 3 and 5
Authored by: ProphetAl on Tuesday, February 14 2006 @ 05:29 AM EST

Even if the Court accepts SCOX's ladder theory footnotes 3 and 5 makes clear the hurdles SCOX will have to jump through to get to trial:-

  • adequate information as to when and how the allegedly misused material was ever disclosed, by SCO or anyone else
  • details as to the origin of the material, including when, where and by whom the material was created;
  • identify all products in which the material is included, or on which the material is based
  • the value of the code
  • whether SCO distributed the code under the terms of the General Public License
  • whether the code was developed to comply with publicly known standards
  • whether the code is dictated by externalities
  • whether the code is merely an unprotectable idea
  • whether the code ever shipped without a required copyright notice
  • whether the code is otherwise in the public domain

Nice. :-)

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Tort reform?
Authored by: bradley13 on Tuesday, February 14 2006 @ 05:59 AM EST
Perhaps someone can explain in words of one syllable, to someone living outside
the USA, just why this case has been allowed to go into years of discovery,
without the plaintiff having to show any basis for a claim in the first place?

The problems with the American legal system were brought home to us in December.
Getty Images threatened to sue us for using images that we believe we licensed
correctly. As a tiny company, we could not even consider the financial cost of
defending ourselves in a foreign country, so we negotiated a settlement - and
permanently deleted all images we had licensed from them.

Legal insurance covering American liabilities is unobtainable. Our lawyer has
always advised us not to do business with US companies, and *never* to sell to
US customers. We've now learned this lesson the hard way, and in the future we
will avoid American companies like the plague.

Does anyone think serious tort reform will ever actually happen? Or should the
rest of the world just wall off the USA and ignore it?

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IBM: SCO has provided enough rope .
Authored by: Saturn on Tuesday, February 14 2006 @ 06:22 AM EST
:o)

---
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
My own opinion, and very humble one too.
Which is probably why I'm not a lawyer.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

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34 patents listed under item 271
Authored by: jseigh on Tuesday, February 14 2006 @ 06:43 AM EST
Is this list still under seal? It would be interesting to see the list and that
list of patents.

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BSF make peace overtures to IBM's lawyers
Authored by: Anonymous on Tuesday, February 14 2006 @ 07:13 AM EST
In what is considered to be a reconciliatory gesture BSF has offered to send
IBM's lawyers on an all expenses paid hunting trip with US vice president Dick
Cheney. IBM's lawyers turned down the offer.

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Could SCO be trying to get IBM to make its case for it?
Authored by: Anonymous on Tuesday, February 14 2006 @ 07:45 AM EST
Like many here, I've been wracking my brains trying to figure out just what
BS&F are up to, and I came up with the following kooky theory. IANAL, so I
can't tell if it's really feasible in practice, but I'll toss it out here for
criticism...

By being vague about the accusations, SCO is forcing IBM to guess what points
they might raise in court and prepare defenses against them. So IBM basically
has to figure out where its own most vulnerable spots are, and prepare to defend
them.

Could SCO be trying to infer IBM's internal review of its own vulnerabilities by
looking at what discovery it asks for and what discovery it resists? Basically,
let IBM have bad dreams and try to read its mind and make them come true?

It would explain why SCO/BS&F keeps hammering on whatever discovery IBM
seems to resist most - they hope IBM is objecting because there's some dirt
buried there, and goodness knows SCO hasn't found any dirt.

And the reason they keep dragging it out is that IBM hasn't let any clues drop
about what makes it nervous, so they're playing chicken with IBM and the end of
discovery hoping IBM will do some discovery they can get a clue from.


As I said, I don't know if this is actually feasible in practice, or if writing
discovery requests so that the opposition can't figure out your theory of
defense is a well-practiced art that's hard to see through.

I was just imagining what IBM might have said in one of its motions arguing
unreasonable burden... "By refusing to define IBM's alleged wrongdoing, SCO
is asking IBM to do SCO's job for it; IBM must imagine all possible charges and
defend against all of them." Then it damed on me... what if that isn't
just a harassment mechanism, but what SCO is actually reduced to trying, kind of
like a cop "sweating" a suspect who he thinks has done something
wrong, but he isn't sure just what.

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Mountains of code?
Authored by: DaveJakeman on Tuesday, February 14 2006 @ 08:07 AM EST
Well, OK, a mountain of code.

Er, perhaps a molehill of code then.

How about a molehill of alleged code, perhaps?

An alleged molehill of alleged code?

Maybe this was just for starters. There's no point in wasting time on
argumentation if it can be quickly and easily dismissed as N/A.

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

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IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Anonymous on Tuesday, February 14 2006 @ 08:15 AM EST
Sounds like there are 94 claims that IBM should have some concern over? No?

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The is where IBMs lawyers start earning their nickname - The Nazgul
Authored by: Anonymous on Tuesday, February 14 2006 @ 08:32 AM EST
They start by hacking off large chunks then they'll splice and dice what's left.
Until SCO are left with a one line complaint that they'll grind under their
collective heel.

I'm put in mind of the Black Night from M.P.&.T.H.G - looks like SCO just
lost an arm and a leg.

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IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Anonymous on Tuesday, February 14 2006 @ 08:35 AM EST
come on judge kimball -

isn't time we put this brain dead company to rest -

lets pull the plug on sco and put them to rest for good.

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Shaunessy Letter
Authored by: overshoot on Tuesday, February 14 2006 @ 08:46 AM EST
Dang -- reading that letter my first impression was of a law professor going over a first-year's homework. It doesn't look like the professor believes that the first-year is going to make it to year two.

The last paragraph, however, changed that to "this was written for the Court." Mr. Shaunessy didn't expect anything constructive from Mr. Normand, he was just setting the basis for this motion.

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IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Anonymous on Tuesday, February 14 2006 @ 08:52 AM EST
"loser pays all" is the biggest possible stick for the big
company or gangster to beat the smaller company or
individual who can't afford Big Lawyers. It's also a
major stimulus for corruption in the legal system in
countries such as the UK.

Doesn't the US have things like "triple damages" for cases
ruled to be frivolous or vexatious? The US system is
clearly broken, but this isn't the fix.

What is needed is better accountability, and the scrutiny
coming through Groklaw could just possibly help. Except
that groklaw weakens a good case by going over the top:
people who weren't following groklaw a couple of years ago
(when the mainstream media were taking SCO seriously)
could be forgiven for seeing it as a rant site.

[ Reply to This | # ]

IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Anonymous on Tuesday, February 14 2006 @ 08:57 AM EST
Because if you were a lawyer you might now, as other lawyers posting here seem
to do, that inadequate representation doesn't exist in a civil case. That is
criminal law.

In a civil case such as this, you have to worry about your own representation.
If you are not adequatley represented, you could prehaps try to get money back
from your lawyers, but it won't affect the outcome of the case.

[ Reply to This | # ]

  • unlikely - Authored by: webster on Tuesday, February 14 2006 @ 09:30 AM EST
    • unlikely - Authored by: Anonymous on Tuesday, February 14 2006 @ 12:17 PM EST
IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: HockeyPuck on Tuesday, February 14 2006 @ 09:04 AM EST
I saw a post or comment regarding the old strategy of asking for many things in
order to get the one you are really after. I'm starting to wonder if absurdity
is the strategy at this point in the case. Keep hammering away with stupid
motions and claims while you get a "feel" for how the other side and
the court will react. SCO is bouncing things off the wall see what will stick
and how IBM will respond. This way they can make their "attack" in a
way that catches IBM, and/or maybe the court, off balance. This could even buy
them more time and they could stumble on something, which at a certain angle,
looks like something.

It seems at one moment, SCO lawyers are "Keystone cops" and the next;
they appear to make some sense. I don't think a firm with this reputation would
be acting this way unless this is some sort of strategy. Either that or they are
bored to death with the case and know it is a no-win situation
.

[ Reply to This | # ]

Let the Games...
Authored by: Anonymous on Tuesday, February 14 2006 @ 09:12 AM EST
begin...uh...End!!

[ Reply to This | # ]

Can't agree with IBM about this...
Authored by: Anonymous on Tuesday, February 14 2006 @ 09:56 AM EST
"Unlike SCO, IBM does not know what SCO claims."

I don't thing SCO knows what it claims either.

:)

[ Reply to This | # ]

IBM request clarification
Authored by: Anonymous on Tuesday, February 14 2006 @ 10:17 AM EST
Moreover SCO's interim disclosures and supplemental
interrogatory responses are unclear as to how they relate
to SCO's prior interrogatory responses. It is not clear,
for example, whether SCO's latest disclosures are
cumulative or merely supplement its prior disclosures,
especially since there are inconsistencies among SCO's
various responses. SCO's interim disclosures are likewise
unclear as to how the allegedly misused material relates
to SCO's different causes of action for example, it is
unclear whether certain of the allegedly misused material
relates to SCO's contract claims, SCO's copyright claims,
IBM's claim seeking a declaration of noninfringement or a
combination of these claims.

[ Reply to This | # ]

Owning the copyright vs. owning a copy
Authored by: Anonymous on Tuesday, February 14 2006 @ 11:49 AM EST
The memorandum contains the following statement:
SCO purports to own all Unix System V code and, thus, has ready access to all of the System V code.
Is there a requirement in the US copyright law that the copyright owner must own a copy? What are the consequences of not owning a copy?
It's the second time I have seen this statement from IBM, and I consider it quite odd.
For example, the German copyright law contains a special section (sec. 25 of UrhG) for this case. If I understand it correctly, the copyright owner can request that the owner of a copy gives him access to his work, if he needs that to create another copy.

[ Reply to This | # ]

Darl duped
Authored by: ThatBobGuy on Tuesday, February 14 2006 @ 12:13 PM EST
SCO was dying, it's been dying for a long time, that's no secret. It's sad
because it was actually a decent product if you look WAY back. Darl was at the
helm of the sinking ship, perhaps convincing himself, and then the board that it
couldn't be the management, it must be something else (a natural human
tendancy). I honestly don't think the media statements can be construed as lies
if he *honestly* thought they were true (the town drunk can *honestly* say he
saw that pink elephant).
SCO got the loudest after their case, and hence the business, started to go
south HARD. Pipe fairy offers a multi-million dollar shot[s] of hope (start the
dupe) and they (SCO) fell for it hook, line and sinker. The real reaon for the
money does not matter, someone believes SCO. I don't believe that SCO went
quiet from attorney advice, I think they went quiet because they finally
realized they were wrong out of the gate (end dupe, start salvaging).
Looking at the major players in this game, SCO thought it was the composer, but
the were actually second fiddle. I imagine that they are feeling like a very
small worm on the end of a very large hook (quote stolen from "The
Crow", edited for decency).
Seeing this recent activity from BSF disgusts me, and almost *ALMOST* make Sco
pitiable.

[ Reply to This | # ]

Sweet revenge
Authored by: ikocher on Tuesday, February 14 2006 @ 09:39 PM EST
I come to think of it... linking the pieces

Microsoft got screwed up by Boies, then they come up with a sweet plan for
revenge. Make puppet SCO hire Boies for their big case, the case of David
versus Goliat, stop the "IP theft", and blah blah blah...

MS knows there is no case, so do SCO gang... but Boies? He just buys SCO talk,
blindly, no questions asked, and the profit looks huge as SCO "shows"
to him.

Then the case starts, if nobody complians and IBM pays for SCO silence, Boies
wins, and MS has a good relationship with Boies because they provided the funds
to make the case, aka MS wins, but also does Boies...

On the other hand somebody notices the scam and untrue arguments, aka: groklaw
and the whole world. Drag the case, Boies starts to notice that there is no
case, but before they had fallen prey of the capped legal expenses and SCO
stock. They are _forced_ to continue, make a shame of themselves, be in extreme
ridicule, and all what we are seening these days on this lame bad act of law
practice.

In the end, MS is happy, Boies was the lawyer for the goverment, the one that
make MS really bad damage. Boies pays for his sins, MS wins, Boies loose
everything they could have and had. Really bad for them...

sweet revenge


By the way, the only thing I think they really didn't place in the equation was
the community response. Take a look at groklaw... how mane dirty clothes had
come up only here? ODF, cases MS is involved, just a quick at the side menu...
they must be really afraid, but again, one might say: MS does not understand the
community, and never will, so not forseening this was "expected".

Also, MS must think they really won this whole thing, by bringing linux name,
open source community, IBM, etc below the mud level. But I think they really
live in their own parallel reality, as SCO. All what has really happend is that
everybody now knows linux better, and also MS much better. And MS is not the
winner here.


Ivan

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IBM: Enough is Enough -- Asks Ct. to Throw Out Most of SCO's List of Allegedly Misused Material
Authored by: Anonymous on Wednesday, February 15 2006 @ 06:03 AM EST
Isn't the whole purpose of this shennigans simply to cast a shadow of FUD all
over Linux until Microsoft's next offering emerges out of Redmond? That's my
opinion and belief anyway. How the US Department of Justice can allow this kind
of carry-on, and expect respect from the US population is a mystery beyond my
understanding. Could some kind and knowledgible soul please explain.

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The Highlights (9 paras)
Authored by: SilverWave on Thursday, February 16 2006 @ 05:28 PM EST
The Highlights:

I. THE FINAL DISCLOSURES LACK THE REQUISITE SPECIFICITY.

SCO fails to identify the allegedly misused material with the most basic
detail.

SCO’s failure to provide even the most basic specificity for its claims is
extraordinarily prejudicial to IBM and should not be allowed.

Following SCO’s repeated failure to respond to IBM’s discovery requests,
Magistrate Judge Wells twice ordered SCO to respond to the requests with
specificity.

For these 201 Items, SCO comes nowhere close to providing the information that
IBM needs to defend itself and that the Court ordered SCO to provide.


II. SCO’S GAMESMANSHIP IS EXTREMELY PREJUDICIAL TO IBM.

If tolerated, SCO’s gamesmanship would give IBM and its experts no meaningful
opportunity to evaluate in advance the claims SCO may choose to trot out in its
expert reports, in opposition to IBM’s summary judgment motions and/or at
trial.

III. THE ONLY APPROPRIATE REMEDY FOR SCO’S GAMESMANSHIP IS TO LIMIT ITS CLAIMS
TO THE DISCLOSED ITEMS FOR WHICH SCO PROVIDED SUFFICIENT SPECIFICITY.

marbux Quote:
...the judge has authority to really romp on TSCOG on this one, up to and
including dismissal of its case.







---
"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

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