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IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Wednesday, April 05 2006 @ 04:57 AM EDT

Now we're cooking. We have now IBM's Reply Memorandum in Further Support of Motion to Limit SCO's Claims Relating to Allegedly Misused Material and all the trimmings:
  • IBM's Reply Memorandum
  • Addendum A, a timeline showing all IBM's requests for specificity, the court's orders, and SCO's "repeated failures to identify" the allegedly misused code
  • Addendum B, chart showing what IBM calls SCO's failure "to identify lines of System V, AIX or Dynix, and Linux material with respect to any of the 198 items".
  • Addendum C, cases

  • Declaration of Randall Davis
  • Addendum A, Randall Davis' credentials as an expert
  • Addendum B, the same chart, just as funny and mind-boggling the second time around

Finally, we get a glimmer of an idea of what SCO filed with the court as their list of allegedly misused materials. What it appears to have filed is just a list of Linux files. IBM references the Declaration of Randall Davis, IBM's expert, filed with this memorandum, who tells the court the following, as summarized by IBM:

SCO does not provide a complete set of reference points (version, file and line) for any of the 198 Items. Astonishingly, SCO fails specifically to identify a single line of System V, AIX or Dynix, and Linux code for any of the 198 Items. SCO does not identify specific System V, AIX, or Dynix version(s) or file(s) with respect to more than a few of the Items. Even specific versions and files of Linux are omitted with respect to many of the Items.

In short, well into our third year of this litigation, SCO still won't tell us what the case is about. IBM clearly isn't impressed with the list and asks the court to toss out the 198 items, which is the bulk of the list. Take a look at the chart IBM provides as Addendum B attached to the Memorandum and to the Randall Davis Declaration and you'll see what IBM is talking about. That's it, I hear you asking? That's all there is? After years of discovery we thought would never end, this is it? They have essentially nothing?

Why in the world would you seal a list of Linux files, which are already out there, in public view? Maybe SCO filed under seal because they were afraid we'd die laughing.

IBM, however, is not laughing. They are asking for sanctions for what they call SCO's willful disobedience to the court's numerous discovery orders. That's the best they call it. They say they think it adds up to bad faith.

SCO, IBM tells the court, just pretended to comply with the court's orders to provide with specificity the code it claims has been misused. Either they don't know what their claims are or they are hiding them. SCO still, believe it or not, after all this time, won't tell IBM what this case is about. There is no way for IBM to know what it has allegedly done, therefore. That means IBM has no way to prepare experts' reports or prepare for the summary judgment phase of the case. And that, they think, may be precisely SCO's purpose.

IBM believes that SCO may be deliberately withholding (if it even has any specific code in mind) the specificity until summary judgment time, to keep IBM in the dark on purpose, as a strategy. It attaches a detailed timeline, "showing IBM’s repeated requests, the Court’s repeated orders, and SCO’s repeated failures to identify the allegedly misused material with specificity", including some details of what's been going on privately between SCO's interim filing and their final disclosure, if that word even fits. Get a load of this part of IBM's preliminary statement:

SCO asserts that it has complied with the Court’s orders and provided IBM with all of the specificity required by its discovery requests. SCO is wrong. With respect to the 198 Items that remain in dispute, the Final Disclosures come nowhere close to providing IBM the specificity ordered by the Court and necessary for IBM fully to defend itself. ...

Following SCO’s public pronouncements about the strength of its case, the Court directed SCO (in no less than three separate orders) to particularize its claims. The Court ordered SCO unequivocally to disclose the specific lines of System V, AIX, Dynix and Linux implicated by its claims. SCO makes false pretensions of compliance but comes nowhere close with respect to the 198 Items at issue. SCO fails specifically to identify a single line of System V, AIX or Dynix material with respect to any of the 198 Items; it specifically identifies lines of Linux code with respect to only one of the Items. These failings not only violate this Court’s orders, but they also make it impossible for IBM properly to defend itself. As is further discussed below, SCO’s claims should be limited to the 92 Items not challenged here or abandoned by SCO.

A footnote tells us this about the numbers of items being challenged:

IBM’s motion sought initially to limit SCO’s claims to 201 of the 294 Items identified in the Final Disclosures. SCO abandoned one of the Items (No. 294) and clarified that another (No. 204) does not allege any misconduct by IBM. IBM’s motion included one Item inadvertently (No. 2). Thus, only 198 Items remain in dispute.

IBM tells the court that in asking that these items be dropped, it by no means is saying that the remainder have merit. IBM says pointblank that they don't think any of SCO's claims are meritorious, but they say they'll deal with the rest by summary judgment. In other words, they are saying these 198 are so vague, they don't lend themselves to summary judgment treatment. How can you argue against a claim, if you aren't told what it is?

But here is the amazing and fascinating part. SCO has, in its sealed memorandum, evidently told the court that they've told IBM enough that IBM should be able to figure out and identify the allegedly infringing code itself:

According to SCO, “IBM has ready access to the engineers who made the disputed disclosures to assist in identifying the nature of its contribution, whether it originated independently from protected material, how it is used, and whether it was in fact disclosed to the Linux community."

What an extraordinary response to the court's orders. As IBM points out, because SCO fails to "identify with specificity the versions, files and lines of System V, AIX, Dynix and Linux material that IBM is alleged to have misused," as a practical matter, it just isn't possible to evaluate SCO’s claims. We're talking about a lot of code. IBM references a Declaration of Todd Shaughnessy, which we don't yet have, which says "there are at least 11 versions, 112,622 files and 23,802,817 lines of System V code potentially implicated by SCO’s claims. There are at least 9 versions, 1,079,986 files and 1,216,698,259 lines of AIX code potentially implicated by SCO’s claims. There are at least 37 versions of the base operating system, and 472,176 files and 156,757,842 lines of Dynix code potentially implicated by SCO’s claims. And there are at least 597 versions, 3,485,859 files and 1,394,381,543 lines of Linux code potentially implicated to SCO’s claims." Precisely where in this massive pile of code should IBM start digging?

What makes it even more stunning is that SCO told the court that it could identify with specificity if it just could have the CMVC materials. It got them. Yet, as IBM points out, they don't appear to have used any of those laboriously collected materials:

As the Court will recall, SCO moved to compel the production of CMVC on the grounds that it would enable SCO to identify precisely the allegedly improper contributions at issue in this case.... Since IBM has now produced CMVC, and hundreds of millions of lines of source code for the purported purpose of allowing SCO to provide the detailed disclosures ordered by the Court, SCO cannot reasonably insist (once again) that IBM identify the information for itself.

I feel sure we'll hear more on this topic at the hearing coming up. I have this vague memory that SCO told Magistrate Judge Wells, when she asked them at a recent hearing if they'd found anything of use in those materials, that they had. Does anyone else remember that too? I hunted for it, and I'll hunt some more after I get some sleep, but that is my memory. If they did, where is it now? Even if my memory is wrong, and they didn't say it, where is it now? In his statement, Davis bluntly tells the court this:

15. SCO's failure to specify its claims puts on IBM the impossible burden of looking for undefined needles in an enormous haystack. The multiple versions of Unix, AIX, Dynix, and Linux comprise more than 1 billion lines of code.

16. The size of the haystack is only part of the problem. With enough time, IBM would likely be able to search the haystack for the allegedly misused material, although I note that SCO's Mr. Sontag testified that it would take 25,000 man years to compare a single version of Linux (a mere 4,000,000 lines of code) to a single version of Unix.

17. The true difficulty with the Items at issue is that SCO does not describe the needles it is sending IBM to find. Instead of defining the 198 items at issue by providing version, file and line information, SCO describes them generally and imprecisely. As a result, the needles look just like hay. This suggests that SCO does not know what it claims or is hiding what it claims.

He elaborates with examples, but the point is that this is an IBM expert telling the court he can't really do his job, because there is no treasure map and not enough time to dig up the entire planet Earth. This failure to tell IBM and the court what this incredible lawsuit is all about is, in IBM's view, evidence of bad faith, but even if one didn't go that far, they say it surely amounts to a willful refusal to obey the court's clear directives. And we learn something else. SCO has asked the court to defer consideration of its disclosures until summary judgment time. Oh, perfect. This, IBM points out, works well with their strategy of not revealing anything specific until then. IBM thus ends up ambushed, and that isn't the way litigation is supposed to be conducted:

IV. THE ONLY APPROPRIATE REMEDY IS TO LIMIT SCO’S CLAIMS.

SCO urges the Court to defer consideration of its disclosures until the summary judgment phase of the case. We respectfully submit that there is no basis for such delay, which would merely serve SCO’s strategic purposes and result in prejudice to IBM.

As discussed above, SCO has failed to provide IBM and its experts the most basic information needed for IBM to evaluate SCO’s claims and prepare its defense. With respect to the 198 Items at issue, SCO has declined, as a practical matter, to tell IBM what is in dispute. As a result, IBM is prejudiced in its ability to prepare its defense. As SCO well knows, without the information IBM has requested -- which is known only to SCO -- IBM’s experts are unable properly to prepare their expert reports (which are due beginning on May 12, 2006), and IBM is unable properly to prepare summary judgment papers. Thus, deferring consideration of SCO’s compliance to the summary judgment phase of the case would merely compound the problems caused by SCO’s noncompliance with the Court’s orders and afford SCO a considerable, unfair, tactical advantage.

We believe, respectfully, that SCO’s failure to specify the 198 Items amounts to bad faith. However, willfulness alone is sufficient to justify the relief IBM seeks.

SCO, IBM is saying, not to put too fine a point on it, is playing dirty, and such conduct should not be rewarded.

What? You thought SCO would play nice?

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

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,

-against-

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

-----------------------

IBM’S REPLY MEMORANDUM IN
FURTHER 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

IBM respectfully submits this reply memorandum in further support of its motion to limit the scope of SCO’s claims to the items of allegedly misused material disclosed with specificity in SCO’s December 22, 2005 Disclosure of Material Allegedly Misused by IBM (the “Final Disclosures”).

Preliminary Statement

SCO asserts that it has complied with the Court’s orders and provided IBM with all of the specificity required by its discovery requests. SCO is wrong. With respect to the 198 Items that remain in dispute, 1 the Final Disclosures come nowhere close to providing IBM the specificity ordered by the Court and necessary for IBM fully to defend itself. IBM’s motion should therefore be granted.

Following SCO’s public pronouncements about the strength of its case, the Court directed SCO (in no less than three separate orders) to particularize its claims. The Court ordered SCO unequivocally to disclose the specific lines of System V, AIX, Dynix and Linux implicated by its claims. SCO makes false pretensions of compliance but comes nowhere close with respect to the 198 Items at issue. SCO fails specifically to identify a single line of System V, AIX or Dynix material with respect to any of the 198 Items; it specifically identifies lines of Linux code with respect to only one of the Items. These failings not only violate this Court’s orders, but they also make it impossible for IBM properly to defend itself. As is further discussed below, SCO’s claims should be limited to the 92 Items not challenged here or abandoned by SCO.

2

I. THE COURT HAS REPEATEDLY ORDERED SCO TO DISCLOSE THE ALLEGEDLY MISUSED MATERIAL WITH SPECIFICITY.

SCO does not dispute that IBM has requested repeatedly (since the beginning of this case) that SCO identify the allegedly misused material with specificity. Nor does SCO dispute that the Court has ordered it to do so no less than three times. In fact, SCO’s opposition papers are conspicuously silent as to either IBM’s discovery requests or the language of the Court’s orders. A detailed timeline, showing IBM’s repeated requests, the Court’s repeated orders, and SCO’s repeated failures to identify the allegedly misused material with specificity, is attached as Addendum A.

IBM has repeatedly asked SCO specifically to identify (by version, file and line) the source code(s) that form the basis of its case. Nearly 2-1/2 years ago, on December 12, 2003, the Court 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.) More than 2 years ago, the Court again ordered SCO “to 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 V for which IBM’s contributions from AIX or Dynix are alleged to be derived”. (03/03/2004 Order ¶ I.1 - I.3 (emphasis added).) 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”, and December 22, 2005 as the “Final Deadline” for the parties to

3

“Disclose with Specificity All Allegedly Misused Material Identified to Date” and to update their interrogatory responses accordingly. (07/01/2005 Order ¶ III.)2

II. THE FINAL DISCLOSURES LACK THE REQUISITE SPECIFICITY.

SCO asserts that its Final Disclosures properly disclose the 198 Items of allegedly misused material at issue. That assertion is baseless.

As is described in the Declaration of Professor Randall Davis (submitted herewith) and summarized in Addendum B hereto, SCO fails to provide the requisite specificity regarding the 198 Items.3 SCO does not provide a complete set of reference points (version, file and line) for any of the 198 Items. Astonishingly, SCO fails specifically to identify a single line of System V, AIX or Dynix, and Linux code for any of the 198 Items. SCO does not identify specific System V, AIX, or Dynix version(s) or file(s) with respect to more than a few of the Items. Even specific versions and files of Linux are omitted with respect to many of the Items. SCO does not -- and cannot - dispute these facts.

To create the false impression that is has provided information that it has not provided, SCO tells the Court that it has provided “color-coded illustrations”, “line-by-line source code comparisons” and “over 45,000 pages of supporting materials”. What SCO fails to mention is that 33,000 of those pages concern Item 294, which SCO abandons in its opposition brief. Moreover, while the Final Disclosures include color

4

coded illustrations and line-by-line source comparisons, they do not do so with regard to any of the 198 Items at issue, which are utterly lacking in the requisite particularity. In other words, SCO refers the Court to Items that are not challenged to try and defend those that are.

Elsewhere SCO contends that it has given IBM enough information to identify the alleged contributions for itself. According to SCO, “IBM has ready access to the engineers who made the disputed disclosures to assist in identifying the nature of its contribution, whether it originated independently from protected material, how it is used, and whether it was in fact disclosed to the Linux community. (For developers no longer employed by IBM, depositions serve this purpose.)”. (Opp’n at 8.) SCO previously made exactly this same argument (see SCO’s Mem. in Opp. to IBM’s Mot. to Compel (10/23/2003) at 5), and the Court expressly (and properly) rejected it (12/12/2003 Order ¶ 4). And this occurred even before SCO insisted that IBM produce its CMVC database. As the Court will recall, SCO moved to compel the production of CMVC on the grounds that it would enable SCO to identify precisely the allegedly improper contributions at issue in this case. (SCO’s Mem. Regarding Discovery (05/28/2004) at 12-16.)4 Since IBM has now produced CMVC, and hundreds of millions of lines of source code for the purported purpose of allowing SCO to provide the detailed disclosures ordered by the

5

Court, SCO cannot reasonably insist (once again) that IBM identify the information for itself.5

Despite its generalized protestations of compliance, it is indisputable that SCO has not complied with the Court’s orders. The Final Disclosures themselves, which SCO plainly does not expect the Court will review, demonstrate the inadequacy of the 198 Items at issue.

III. THE SHORTCOMINGS OF THE 198 ITEMS MAKE IT IMPOSSIBLE FOR IBM PROPERLY TO DEFEND ITSELF.

As stated in IBM’s opening brief, SCO contends generally that IBM misused Unix System V material (which SCO purports to own) and the AIX and Dynix material (which IBM owns, but SCO purports to control). According to SCO, IBM improperly “dumped” Unix System V, AIX and Dynix material into Linux. While the Final Disclosures add color to SCO’s allegations, they fail miserably (as stated), to identify with specificity the versions, files and lines of System V, AIX, Dynix and Linux material that IBM is alleged to have misused. Without that information it is, as a practical matter, impossible to evaluate SCO’s claims.

SCO’s failure to specify its claims puts on IBM the impossible burden of looking for undefined needles in an enormous haystack. As illustrated in Exhibit 1 to the Declaration of Todd M. Shaughnessy, filed herewith, there are at least 11 versions, 112,622 files and 23,802,817 lines of System V code potentially implicated by SCO’s claims. There are at least 9 versions, 1,079,986 files and 1,216,698,259 lines of AIX

6

code potentially implicated by SCO’s claims. There are at least 37 versions of the base operating system, and 472,176 files and 156,757,842 lines of Dynix code potentially implicated by SCO’s claims. And there are at least 597 versions, 3,485,859 files and 1,394,381,543 lines of Linux code potentially implicated to SCO’s claims. SCO points IBM to a haystack comprised literally of billions of lines of code.6

The size of the haystack, however, is only part of the problem. Given enough time, IBM could probably search the haystack for the allegedly misused material, although we note that when it suited SCO’s purpose, it represented to the Court that it would take 25,000 man years to compare just one version of Linux to one version of Unix (a total of just 4,000,000 lines of code; a mere .2% of the haystack to which SCO now points IBM). The real problem with the Final Disclosures is that SCO fails adequately to describe the needles it is sending IBM to find. As a result, the needles look just like hay.

Rather than define the 198 items at issue (which can only properly be done by providing version, file and line information), SCO describes them in general and imprecise terms, suggesting that either SCO does not itself know what it claims, or wishes, for tactical reasons, to hide its claims from IBM.7 For example, Item 146, one of SCO’s more precise items (compare Item 10) faults IBM for “Use of Dynix/ptx for Linux

7

development”, refers to an e-mail concerning “performance and profiling” and lists 11 Linux files without any mention of the version(s) of Linux for which they are supposed to come. That information reveals nothing meaningful about what IBM is supposed to have done. SCO does not say where such “profiling” was done in System V or Dynix or even where specifically it is allegedly done in Linux.

As SCO well knows, its failure to provide specific coordinates for all of the allegedly misused material makes it impossible for IBM to conduct the kind of investigation that is necessary for IBM fully to defend itself. SCO does not dispute that its causes of action require inquiry into the origin of the code and concepts (which are, of course, embodied in code), the value of the code, whether SCO distributed the code under the GPL, whether it 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.8 (SCO Opp’n at 8.) The only way to answer these questions is on a line by line basis. That cannot be done without knowing the versions, files and lines, of the allegedly misused material.

By failing to provide adequate reference points, SCO has left IBM no way fully to evaluate its claims without surveying the entire universe of potentially relevant code and

8

guessing. Since only SCO knows what its claims are, requiring such an exercise of IBM would be as senseless and unfair as it would be herculean.

IV. THE ONLY APPROPRIATE REMEDY IS TO LIMIT SCO’S CLAIMS.

SCO urges the Court to defer consideration of its disclosures until the summary judgment phase of the case. We respectfully submit that there is no basis for such delay, which would merely serve SCO’s strategic purposes and result in prejudice to IBM.

As discussed above, SCO has failed to provide IBM and its experts the most basic information needed for IBM to evaluate SCO’s claims and prepare its defense. With respect to the 198 Items at issue, SCO has declined, as a practical matter, to tell IBM what is in dispute. As a result, IBM is prejudiced in its ability to prepare its defense.9 As SCO well knows, without the information IBM has requested -- which is known only to SCO -- IBM’s experts are unable properly to prepare their expert reports (which are due beginning on May 12, 2006), and IBM is unable properly to prepare summary judgment papers. Thus, deferring consideration of SCO’s compliance to the summary judgment phase of the case would merely compound the problems caused by SCO’s noncompliance with the Court’s orders and afford SCO a considerable, unfair, tactical advantage.

We believe, respectfully, that SCO’s failure to specify the 198 Items amounts to bad faith. However, willfulness alone is sufficient to justify the relief IBM seeks. See, e.g., Kern River Gas Transmission Co. v. 6.17 Acres Of Land, No. 04-4033, 2005 WL 3257509, at *3-4 (10th Cir. Dec. 2, 2005) (slip copy) (Addendum C); In re Standard

9

Metals Corp., 817 F.2d 625, 628-29 (10th Cir. 1987).10 It is beyond reasonable debate that SCO acted willfully in not specifying its claims. The Court made perfectly clear what SCO was required to do (in three separate orders). Not once did SCO seek clarification. SCO could have provided the missing information. Indeed, only SCO can provide it. As stated, SCO failed to do so.

Absent the information SCO was required to provide but has not provided, it would take IBM and its experts years to chase all of the facts relating to the generalities SCO has provided regarding the 198 Items. As stated, SCO represented to the Court that it would take 25,000 man-hours to compare just one version of Linux to one version of Unix System V. The 198 Items at issue implicate many, many times as much code. By SCO’s mathematics, it would require IBM many more than years of study to understand and evaluate the 198 Items at issue. Even then, the best IBM could do is guess as to the particulars of SCO’s claims (which have not fully been stated). Without the information SCO has withheld, how is IBM to evaluate whether it disclosed a certain Item? How is IBM to know whether the Item made it into Linux? How is IBM to know to what extent Linux implements the Item? How is IBM supposed to determine whether there are substitutes for the Item, or whether it could be replaced if withdrawn from Linux? How is IBM accurately to value the Item? This is only a partial list of the questions that are

10

very difficult, if not impossible, to answer, in view of SCO’s failure to comply with the Court’s orders.

SCO seeks to distinguish the cases on which IBM relies in its opening brief, Imax Corp. v. Cinema Technologies, Inc., 152 F.3d 1161 (9th Cir. 1998), and Kang v. Lee, No. 96 Civ. 145, 1997 WL 669787 (S.D.N.Y. Oct. 27, 1997) (Addendum C), on the grounds that they are summary judgment cases. It is not the posture of those cases that matters here, however, but the fact that they limited the parties’ claims for failure to disclose them.11 And once again, SCO’s argument is directly contrary to positions it has taken earlier in the case (when it thought it was in its interest to do so). In support of its motion to compel IBM to produce certain financial information, SCO argued IBM should not be allowed to use at summary judgment information not provided during discovery. For reasons equally applicable here, the Court stated:

Obviously what I don’t want is either side to use information that has been withheld in support of a summary judgment motion in support of their case at trial, all evidence need[s] to be on the table for the other party to analyze and take a look at.

(2/24/06 Tr. at 50.) Deferring the resolution of this motion would simply require IBM to proceed to the summary judgment phase of the case without knowing what is on the table.

Contrary to SCO’s suggestion, there is ample authority for this Court to limit SCO’s claims. See, e.g., Kern River, 2005 WL 3257509, at *2-4 (affirming district

11

court’s decision “preclud[ing], pursuant to Rule 37, [defendant] from introducing at the trial any expert evidence or documents not produced during discovery” where defendant’s failure “prejudiced [plaintiff] in its ability to conduct discovery, prepare for trial and cross-examine [defendant's] witnesses”) (Addendum C); Nike, Inc. v. Top Brand Co. Ltd., 216 F.R.D. 259, 274 (S.D.N.Y. 2003) (Ellis, M.J.) (“preclud[ing] [defendants] from introducing evidence on the question of damages” because the defendants’ failure “to provide relevant data [has impaired] plaintiffs’ ability to present their case”).12 Contrary to SCO’s suggestion, this Court is empowered to protect the integrity of its Orders (with which the Final Disclosures plainly do not comply) and to limit the prejudice caused by SCO’s failure to specify its claims.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court enter an order precluding SCO from pursuing the 198 items not properly disclosed in SCO’s Final Disclosures.

12

DATED this 4th day of April, 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
International Business Machines Corporation

Of counsel:

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


1 IBM’s motion sought initially to limit SCO’s claims to 201 of the 294 Items identified in the Final Disclosures. SCO abandoned one of the Items (No. 294) and clarified that another (No. 204) does not allege any misconduct by IBM. IBM’s motion included one Item inadvertently (No. 2). Thus, only 198 Items remain in dispute.

2 While the Court’s orders expressly refer only to “lines” of code, they plainly require the identification of the versions and files. A line reference is meaningless absent disclosure of the version and file in which it is found.

3 As stated in IBM’s opening brief, SCO declined to provide all of its disclosures in an easily searchable, electronic format, complicating IBM’s analysis of them. Addendum B corrects and refines the statement of SCO’s shortcomings included in IBM’s opening papers.

4 It is worth noting that SCO, having obtained CMVC at enormous expense to IBM and after a significant investment of time by the Court, appears not to have even used it to prepare its Final Disclosures.

5In its opposition papers, SCO misrepresents a number of facts (e.g., claiming IBM improperly destroyed documents (see Opp’n at 4)). We do not dwell on these assertions here, except to state that they are baseless, and, in any event, have no bearing on this motion.

6 The fact that IBM’s motion is directed to only 198 of the Items is not an indication that SCO has properly disclosed the remaining Items. It has not, as stated in IBM’s opening brief. This motion is directed only to 198 of the Items because SCO’s disclosures as to those Items are utterly lacking in the required detail. IBM proposes to deal with the items not dealt with here on summary judgment.

7 As the Court may recall, SCO’s counsel was quoted early in the case as saying that it did not want IBM to know what SCO’s claims are. (See Exhibit 31 to the Declaration of Todd M. Shaughnessy, dated May 18, 2004.) Obviously, IBM cannot debunk propositions SCO declines to disclose.

8 The answers to these questions matter because SCO has no rights with respect to code that did not derive from System V, and it cannot protect as confidential code that is in the public domain by no fault of IBM’s. Further, SCO cannot assert copyright interests with respect to mere ideas, code that can only be expressed in a few ways, code that is in the public domain, and code that is dictated by externalities such as computer programming practices. See The Gates Rubber Co. v. Bando Chemical Ind., Ltd., 9 F.3d 823, 833-38 (10th Cir. 1993); Computer Assocs., Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 701-04 (2d Cir. 1992).

9SCO suggests that IBM’s real concern is that it has no defense to SCO’s allegations and is thus seeking simply to foreclose consideration of them on the merits. (Opp’n at 8.) That is incorrect. While we believe all of SCO’s allegations lack merit, this motion is not about the merits. It is about whether SCO complied with IBM’s discovery requests and the Court’s orders.

10SCO does not dispute that willfulness is sufficient to justify the relief IBM seeks. (Opp’n at 4.) SCO’s own cases say as much. See, e.g., Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991) (stating that “[s]evere sanctions are justified . . . when the failure to comply with a court order is due to willfulness or bad faith, or is otherwise culpable.” (emphasis added)). None of them is to the contrary. State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1374-75 (10th Cir. 1978), merely demonstrates that preclusionary sanctions may be granted where there is bad faith, not that it is required. In re Westinghouse Electric Corporation Uranium Contracts Litigation, 563 F.2d 992, 994 (10th Cir. 1977), is inapposite as it involves a contempt proceeding under Fed. R. Civ. P. 45 for failure to comply with a subpoena.

11 Even if there were a reason to defer (to the summary judgment phase) consideration of the relief appropriate to address SCO’s failure to comply with the Court’s order -- and we do not believe there is -- there is plainly no reason to defer consideration of the question whether SCO provided the information requested by IBM and ordered by the Court, which it indisputably did not. This Court is in the best position to make that determination.

12 See also Tenen v. Winter, 15 F. Supp. 2d 270, 272-73 (W.D.N.Y. 1998) (affirming magistrate’s order “that the defendants [be] precluded from presenting any evidence at trial of the alleged defamation by plaintiffs” where “the defendants [sic] had failed to provide discovery concerning interrogatories he was court ordered to answer on the subject of his allegation that the plaintiffs made defamatory statements”); Pentalpha Macau Commercial Offshore Ltd. v. Reddy, No. C03-5914, 2005 WL 2989273, at *2-4 (N.D. Cal. Nov. 3, 2005) (affirming magistrate judge’s order “that [defendant] shall not to use as evidence at trial, at a hearing, or on a motion, any . . . information that [defendant] did not disclose . . . in his original interrogatory responses” where defendant’s interrogatory “responses were inadequate and vague”) (Addendum C); KingHardy v. Bloomfield Bd. of Educ., No. Civ.3:01CV979, 2002 WL 32506294, at *4 (D. Conn. Dec. 8, 2002) (“preclud[ing] [plaintiff] from introducing documents that could be considered responsive to [defendant’s] requests at trial” because plaintiff’s “[f]ailure to produce documents . . .[was] a violation of the pretrial order”) (Addendum C).

13

CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of April, 2006, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address, phone]

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

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

/s/Todd M. Shaughnessy

14


  


IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims | 522 comments | Create New Account
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IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: Anonymous on Wednesday, April 05 2006 @ 05:15 AM EDT
Now we are cookin'

[ Reply to This | # ]

Corrections here, please
Authored by: Jude on Wednesday, April 05 2006 @ 05:17 AM EDT
So PJ can find them...

[ Reply to This | # ]

OT materials here please
Authored by: MadScientist on Wednesday, April 05 2006 @ 05:17 AM EDT

[ Reply to This | # ]

Wow!
Authored by: kinrite on Wednesday, April 05 2006 @ 05:22 AM EDT
Things seem to be starting to come together.

---
"Truth is like energy...it can not be created, nor destroyed"

[ Reply to This | # ]

A Redneck Comedian Said...
Authored by: seraph_jeffery on Wednesday, April 05 2006 @ 05:35 AM EDT
... You can't cure stupidity.

[ Reply to This | # ]

IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: Anonymous on Wednesday, April 05 2006 @ 05:39 AM EDT
I thought this was interesting...
To create the false impression that is has provided information that it has not provided, SCO tells the Court that it has provided “color-coded illustrations”, “line-by-line source code comparisons” and “over 45,000 pages of supporting materials”. What SCO fails to mention is that 33,000 of those pages concern Item 294, which SCO abandons in its opposition brief.

So SCO have actually done some homework and produced 45,000 pages of code comparisons of some sort.

However, 33,000 pages of that comparison relate to one claim which they have now abandoned. That is a pretty big chunk of work to abandon. I wonder what they thought they had?

And the remaining 12,000 pages relate to only 90 odd items from the list.

Now, what are these colour coded charts? My guess is some sort of graphical diff output. In which case, they could have generated many of the remaining pages automatically by just comparing some files with POSIX standard stuff in.

[ Reply to This | # ]

Bravo! Go Addendum B!
Authored by: GLJason on Wednesday, April 05 2006 @ 06:01 AM EDT
291 claims charted out with whether they specified, files, lines, and versions
for each of SysV, AIX, Dynix, and Linux. Before you look, guess how many out of
the 291 that SCO identified ANY of those three things (file, version, or line)
for SYSV and how many for AIX.

If you guesses 'one', then you're a winner! After scouring IBM's CMVC database
with all the notes and design documents, they apparently found ONE file, or
rather item that IBM supposedly misused, in AIX that is related to SYSV, and
they don't even seem to claim that it was put into Linux! They do a little
better with Dynix, at least showing Dynix files, versions, <i>or</i>
lines for 8 items, yet they don't show the SYSV roots for any of them and don't
show how they relate to Linux in any way for two of them.

Can't wait for the summary judgment motions to start flying :) The one I'm
really excited about is the motion IBM made for summary judgement on their
copyright infringement claims with respect to SCO distributing the IBM code in
Linux. Look at that one and see 19 files (versions and lines) clearly
identified as owned by IBM (since they were copied verbatim).

[ Reply to This | # ]

Where is this quote?
Authored by: Reven on Wednesday, April 05 2006 @ 06:13 AM EDT
One of the footnotes is very interesting to me:

7 As the Court may recall, SCO’s counsel was quoted early in the case as saying that it did not want IBM to know what SCO’s claims are. (See Exhibit 31 to the Declaration of Todd M. Shaughnessy, dated May 18, 2004.) Obviously, IBM cannot debunk propositions SCO declines to disclose.

I've looked through a bunch of PDFs in the legal docs section, but can't seem to find this juicy little tidbit. While we all know this is what SCO's desire was, it would be nice to find the quote of them actually saying it.

---
Ex Turbo Modestum

[ Reply to This | # ]

At last, IBM asks for sanctions
Authored by: Anonymous on Wednesday, April 05 2006 @ 07:30 AM EDT

Cuirous to see exactly what it takes for this to happen. I'll believe it when I
see it.

[ Reply to This | # ]

Bad faith?
Authored by: salo on Wednesday, April 05 2006 @ 07:47 AM EDT
Can someone please explain what actually constitutes bad faith? After all SCO
has done and failed to do under the assumption they were acting in good faith in
this case and others, what would a judge see that finally crosses the line?

[ Reply to This | # ]

Keyboard Alert
Authored by: Steve Martin on Wednesday, April 05 2006 @ 07:47 AM EDT

To create the false impression that is has provided information that it has not provided, SCO tells the Court that it has provided “color-coded illustrations”, “line-by-line source code comparisons” and “over 45,000 pages of supporting materials”.

And then...

While the Final Disclosures add color to SCO’s allegations,

Sarcasm from the Nazgul! Priceless!!

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

[ Reply to This | # ]

Astonished
Authored by: DaveJakeman on Wednesday, April 05 2006 @ 07:52 AM EDT
"it is astonishing that SCO has not offered any competent evidence to
create a disputed fact regarding whether IBM has infringed SCO's alleged
copyrights through IBM's Linux activities."

It is astonishing that the Court has allowed this case to continue a further 14
months after making that statement, without forcing SCO to comply with its prior
court orders.

I am astonished.

I will be further astonished if the Court doesn't "enter an order
precluding SCO from pursuing the 198 items not properly disclosed in SCO’s Final
Disclosures."

---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

  • Not quite - Authored by: jbb on Wednesday, April 05 2006 @ 03:35 PM EDT
    • Kinda - Authored by: GLJason on Thursday, April 06 2006 @ 04:21 AM EDT
      • Kinda - Authored by: jbb on Thursday, April 06 2006 @ 01:39 PM EDT
        • Hmm - Authored by: Anonymous on Thursday, April 06 2006 @ 02:15 PM EDT
  • I will be merely resigned - Authored by: Anonymous on Thursday, April 06 2006 @ 12:04 AM EDT
Has SCO Heard Of Ambrose Bierce?
Authored by: TheBlueSkyRanger on Wednesday, April 05 2006 @ 08:05 AM EDT
Hey everybody!

I'm reminded of one of my favorite quotes from Mr. Bierce:

"Circumlocution, n. A literary trick whereby the writer who has nothing to
say breaks it gently to the reader."

That seems a familiar concept. What does it remind me of? ;-)

I forgot when this is going to be heard (I'm thinking April 11, but I'm not
sure), but I'm very interested. After SCO tried getting IBM nailed with
sanctions, it looks like IBM can do the reverse to them. And of course, this
can start a domino effect on the rest of the evidence.

Anyone want to wager a shiny new dime how this is going to play out?

Dobre utka,
The Blue Sky Ranger

"Aaaaaaaaaaaaaaaaaaaaaaahhhh....."
--Scrat
"Ice Age 2"

[ Reply to This | # ]

Sanctioning SCOG's Lawyers
Authored by: Anonymous on Wednesday, April 05 2006 @ 08:18 AM EDT
We've discussed the possibility of sanctioning the lawyers.

Look at Addendum C (cases.) These cases all relate to "preclusion"
when a party willfully fails to comply with discovery orders. In the second of
these cases, both the plaintiff and the plaintiff's lawyers got sanctioned,
becase the failure was willful and egregious.

So, it's not just the IANAL posts on Groklaw that are raising this issue now.

[ Reply to This | # ]

SCO's Plan: revealed
Authored by: DaveJakeman on Wednesday, April 05 2006 @ 08:19 AM EDT
Randall Davis: "SCO's failure to specify its claims puts on IBM the
impossible burden of searching an enormous haystack for needles that look just
like hay."

SCO: "Your honor, this strand of hay here, which I just picked at random
from that enormous haystack you see over there, is not really a strand of hay at
all; it is a needle that looks just like hay. You see, your honor, that is not
in fact a haystack at all; it is a needlestack."

---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

Can the court dismiss with prejudice?
Authored by: jamesw on Wednesday, April 05 2006 @ 08:46 AM EDT
What would it mean in this case, in practice, for these 198 claims to be dismissed with prejudice?

I understand that "with prejudice" means "you can't file these claims again".

But if after three years and mountains of filings, we are still in the dark as to what the claims were -- how would anyone tell if a new SCO lawsuit was genuinely new or the same old nonsense served up again?

And would we have to wait three years to find out whether the case could be filed in the first place?

[ Reply to This | # ]

It's The SCO Cheese Shop!
Authored by: OmniGeek on Wednesday, April 05 2006 @ 08:56 AM EDT
The shenigans revealed by this memorandum forcfully remind me of the classic
Monty Python cheese shop skit.

Magistrate Judge Wells' orders have, in effect, asked SCO, "Do you, in
fact, have any cheese at all?"; we can see from IBM's reply memo that SCO's
answer was a desperately mumbled, "Er, ah, um, well, not as such, you
see..."

Any Python fan knows how that farcical episode ended; I am hopeful that this
farcical episode will end with a similarly final, if metaphorical, bang at
summary judgement time.

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

SCO has a Mindboggling Lack of Evidence!
Authored by: Anonymous on Wednesday, April 05 2006 @ 09:21 AM EDT
The Addendum Charts lays it out in plain sight. It is AMAZING how little
evidence SCO has. From reading the chart, there is NO evidence at all!

SCO fails to link even ANY file (let alone line of code) of Unix System V with
ANY
file (let alone line of code) of Linux. ZERO. NADA. ZIP.

The vague "evidence" should be thrown out!

Of course, this would gut SCO's case. BUT it is FULLY SCO's fault. In doing
so
SCO even broke the court's orders.

[ Reply to This | # ]

IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: jsusanka on Wednesday, April 05 2006 @ 09:28 AM EDT
not surprising

this and the US intervention in the EU case speaks volumes for what is wrong
with America today.

everyone is out for the quick get rich buck and no one wants to produce quality
anymore.

just hide behind patent and lawyers and the sheeple will continue to give us
money.

america is nothing but a bunch of get rich quick schemes suckering people into
giving over their money.

microsoft is the poster child of this america with sco right underneath them.

my father fought in wwII and I know his generation is digusted with the way
america is so lawsuit happy today.

[ Reply to This | # ]

IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: tredman on Wednesday, April 05 2006 @ 09:33 AM EDT
There was a lot of commentary in the beginning about how SCOX was trying more so
to present their case to the public than to the court, particularly with all of
the McBride interviews way back when.

This is a beautiful attempt at IBM to turn the tables.

IBM's attorneys have crafted this reply brief in such a careful way as to make
it easy reading for both the judge and the layperson. With the exception of
case citations, no legal experience is necessary to understand every bit of what
they're saying, and even the case law is presented in such a way that it doesn't
take a Supreme Court justice to figure out what's going on.

I believe that this single document is also going to be the biggest problem for
SCOX when it comes to appeal time (if they're still around by then) since it
documents clearly their what their strategy has been during all of this. An
Appeals Court is not going to look highly on the SCOX strategy of delay and bad
faith.

None of us can say we were suprised by this. From the very beginning, Darl is
famously quoted for saying that it was their strategy to not put everything on
the table at once if they could help it. That may end up being the company's
epitaph.

---
Tim
"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

Only "new" items can be included
Authored by: jdg on Wednesday, April 05 2006 @ 09:38 AM EDT
At an earlier point, tSCOg 'provided' "an astonishing lack of
evidence..." By that time that had a lot of material to work from. IANAL,
but I seem to recall that they could only include in later submittals evidence
from new discovery, not things that they could have or should have been able to
produce at earlier points.

It seems that this further hamstrings tSCOg in a manner that has not been
discussed for some time.

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

[ Reply to This | # ]

At last we know what SCO wants from IBM.
Authored by: jfw25 on Wednesday, April 05 2006 @ 09:40 AM EDT
“IBM has ready access to the engineers who made the disputed disclosures to assist in identifying the nature of its contribution, whether it originated independently from protected material, how it is used, and whether it was in fact disclosed to the Linux community."
SCO cannot begin to make its case until IBM provides a signed confession, and SCO wants the court to sanction IBM for not providing it.

And we all thought SCO was just wasting time. How much more efficient could one possibly get than that?

[ Reply to This | # ]

It appears that sco's goal...
Authored by: Anonymous on Wednesday, April 05 2006 @ 09:45 AM EDT
of delaying Linux's uptake until m$ rolls out vista is offset by m$
incompetence. You gotta love this game.

[ Reply to This | # ]

Hey, Judge Robinson...
Authored by: Steve Martin on Wednesday, April 05 2006 @ 09:49 AM EDT

(from the Judge's Order denying Red Hat's motion to reconsider the stay)

The plaintiff, however, may renew its motion to reconsider the stay if the claims or counterclaims in the pending SCO litigations change, and it would no longer be an inefficient use of judicial resources for this court to consider whether the LINUX system contains any misappropriated UNIX system source code, or if there is evidence that SCO has misrepresented the issues of this case, or the Utah litigation.

Well, if IBM gets this motion granted, I wonder if this will be enough evidence that "the claims ... in the pending SCO litigations change[d]" or that TSG has "misrepresented the issues of ... the Utah litigation". You'd think that having (literally) two-thirds of your allegations of misappropriated code tossed would be significant...

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

[ Reply to This | # ]

I can hear the jingle of Mr T's jewelry now
Authored by: Prototrm on Wednesday, April 05 2006 @ 10:30 AM EDT
I can't wait for the two-part conclusion to this story:
1. SCO looses its lawsuit against IBM
2. IBM wins its countersuit against SCO

This is gonna be like the last act of an A-Team episode. I love it when a plan
comes together!

[ Reply to This | # ]

This is potty...
Authored by: Saturn on Wednesday, April 05 2006 @ 11:08 AM EDT
So now IBM have to determine what they are guilty of, and what evidence exists to prove that guilt?
Whatever happened to concepts like burden of proof?

And if SCO didn't bother to use the material provided to them to support their claim, doesn't that define a vexatious complaint?
This is just bonkers. This could only happen in the US. Its like one of those made up 'man sues dog' stories.

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

[ Reply to This | # ]

  • This is potty... - Authored by: Anonymous on Thursday, April 06 2006 @ 10:38 AM EDT
IANAP but...
Authored by: Anonymous on Wednesday, April 05 2006 @ 11:11 AM EDT
(that is psychologist), but isn't this some kind of syndrome that SCOG has
gotten itself into? It seems like SCOG has completely and udderly convinced
themselves that there is something to their claims.

They seem to be telling the court that why should they tell IBM what they stole,
IBM knows exactly what it stole. They do not need identify file, version, and
line because these IBM engineers know exactly where it is.

Usually it would be the lawyers who would tell SCOG that "there is no there
there" (apologies to Gertrude Stein). But, since the lawyers took a whole
great big chunk of change ahead of time they do not have a financial interest in
telling SCOG that they do not have a case. In fact, I guess you could call
those millions of dollars "hush money", because it seems like SCOG is
telling their lawyers "hush we don't want to hear that we do not have a
case".

How does SCOG get to reply to this?

[ Reply to This | # ]

Alice's Restaurant?
Authored by: pdqlamb on Wednesday, April 05 2006 @ 11:27 AM EDT

33,000 pages of “color-coded illustrations” and “line-by-line source code comparisons” for one claim, that they've then abandoned? Ouch! That's gotta hurt, walking away from a pile that big!

Is anyone else reminded of Alice's Restaurant? Officer Opie with thirty-three (thousand) 8 by 10 color glossy photographs, with labels and captions, and the writing on the back. Will history repeat itself, and justice turn out to be blind?

[ Reply to This | # ]

IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: Anonymous on Wednesday, April 05 2006 @ 11:28 AM EDT
Okay, I'm paranoid. Let's hope that SCOx isn't sharing all that code with M$.
Or is that why they are "rewriting" portions of "Scenery".

[ Reply to This | # ]

SCO's next court filing...
Authored by: Jamis on Wednesday, April 05 2006 @ 11:30 AM EDT
Should be Chapter 7.
Now that the M1-A1 that is IBM Legal is rolling, SCO is toast. I know, I said
it before.

[ Reply to This | # ]

Why seal Linux files?
Authored by: Anonymous on Wednesday, April 05 2006 @ 11:31 AM EDT
"Why in the world would you seal a list of Linux files, which are already
out there, in public view?"

Proposed reason: because they didn't want investors and potential investors to
realise how weak their case was.

[ Reply to This | # ]

Blank lines and "methods".
Authored by: Jaywalk on Wednesday, April 05 2006 @ 11:46 AM EDT
Check out Appendix B, items 271 to 293. The chart shows the file, version and line referenced in System V, AIX, Dynix and Linux, supposedly showing how something starting in System V got into Linux. But these lines are completely blank; not even a file name is referenced.

This had me baffled for a bit, but I think I know what these are. These are "methods" found in one or more of those operating systems. For example, "UNIX uses file names and Linux uses filenames." Presumably SCO isn't quite that blatant, but that's the general idea. How SCO's going to make that fly is beyond me, especially when all the contract specifies is the need to maintain security on the "software product" which it defines as "computer programs, information used or interpreted by computer programs and documentation relating to the use of computer programs." I don't see any way to expand that contract into something as vague as "methods".

Any other guesses on this one?

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

A jury trial
Authored by: Anonymous on Wednesday, April 05 2006 @ 11:55 AM EDT
Let's assume for a minute that all of the chatter about SCOG being back by MS,
etc. and assume that SCOG really indeed to think they were wronged by IBM in
this whole mess.

SCOG has said from the beginning that they just want their day in court, and to
get this trial in front of a jury.

I think they just want to be able to get in front of a non-technical jury and
claim big, bad IBM stole their milk money. They want to paint themselves as the
little underdog that IBM was trying to kick to the side of the street. I think
if they do ever get in front of a jury this will be the mainstay of their case.

Am I off base on this?

[ Reply to This | # ]

Gone Fishing!
Authored by: grayhawk on Wednesday, April 05 2006 @ 12:05 PM EDT
SCO went on a fishing trip and are in the middle of the ocean. Now it is time
to fish or cut bait. But wait, they, SCO, forgot the tackle and the bait.

On top of all that their boat has sprung a major leak and the bilge pumps are
broken. We also forgot a bucket with which to bail and the life jackets are
still sitting on the dock where we left them.

My oh my isn't SCO in a pickle! :-D hehehehe!

---
All ships are safe in a harbour but that is not where they were meant to be.

[ Reply to This | # ]

Through the lenses of a teenage relationship...
Authored by: Benanov on Wednesday, April 05 2006 @ 12:30 PM EDT
IBM: Your honor, we have spent fourteen months in front of this court, and I
still don't know why SCO's mad at me.

SCO: You know what you did, now say you're sorry.

IBM: If I don't know what I did, how can I apologize for it?

---
That popping sound you hear is just a paradigm shifting without a clutch.

[ Reply to This | # ]

SCO's burden of proof, laid out explicitly
Authored by: Anonymous on Wednesday, April 05 2006 @ 12:53 PM EDT
"SCO does not dispute that its causes of action require inquiry into the
origin of the code and concepts (which are, of course, embodied in code), the
value of the code, whether SCO distributed the code under the GPL, whether it
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.8 (SCO Opp’n at 8.) The only way to
answer these questions is on a line by line basis. That cannot be done without
knowing the versions, files and lines, of the allegedly misused material."

No wonder SCO doesnt want to state their claim with specificity. I'd love to
see them supporting each item on that list, for every line of code they claim.

[ Reply to This | # ]

Wilfullnes and Bad Faith -- IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: Anonymous on Wednesday, April 05 2006 @ 01:12 PM EDT
The layman has an understanding of the terms bad faith and wilfulness. However
it crossed my mind that these terms have specific Legal implications. IBM says
SCO's failure to identify with specificity appears to be behaving in bad faith,
however they claim wilfulnnes is sufficient to cause the court to grant their
request.

So, from a legal viewpoint, is one worse than the other. Does one have greater
penalties than the other. How can you determine that they are not behaving in
bad faith, but are only being wilful?

[ Reply to This | # ]

IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: Anonymous on Wednesday, April 05 2006 @ 01:39 PM EDT
I witnessed python attacking aligator in Everglades last December. Several park
rangers were around monitoring the situation and told us that the fight was
already going on for at least 5 hours. Most of the time nothing was happening,
the gator was holding mid-section of the python in its mouth and the snake was
trying to constrict the gator, couple times it tried to bite the gator in its
eye,... Then suddenly they started trashing around (gator I assume initiated
this) and fell into water and moved some distance. I did not wait until the end
but the rangers said that the gater should win unless it gets exhausted. They
were planning to help the gater if necessary.

[ Reply to This | # ]

Infringing Code Revealed!!!
Authored by: Anonymous on Wednesday, April 05 2006 @ 02:00 PM EDT
Sorry, but I must post this anonymously.

A source in IBM has related that their engineers secretly processed Unix, AIX,
Dynix and Linux code bases with the BlueGene W supercomputer and have identified
literally hundreds of lines of Linux which are identical to Unix source code.
It must be more than a coincidence that;

++i;

occurs so often in the Linux code base. Clearly the Linux community has stolen
this proprietary Unix method. IBM is entering settlement talks and expects to
make a joint announcement with SCO in the coming days.

[ Reply to This | # ]

Private Investigators Against SCO?
Authored by: phaoUNTOtom on Wednesday, April 05 2006 @ 02:15 PM EDT
If IBM believes SCO's litigation is all an act, can IBM hire private
investigators to look into why SCO is doing this? Would this hurt IBM current
case and would the judge see it as justified?

The question that continues to come to my mind (from the beginning of the case)
is if SCO is acting as a puppet for someone else's plan.

[ Reply to This | # ]

88 to go IBM are doing a Kill Bill :)
Authored by: SilverWave on Wednesday, April 05 2006 @ 02:59 PM EDT
292 claims.

/slash (100 claims)
/slash (98 claims) … there go a couple of legs

292-198 = 94 to go….

IBM is starting to ratchet up the pressure :)


---
"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 | # ]

I could not believe it
Authored by: Alan(UK) on Wednesday, April 05 2006 @ 03:51 PM EDT
I had to look it up myself:

“IBM has ready access to the engineers who made the disputed disclosures to
assist in identifying the nature of its contribution, whether it originated
independently from protected material, how it is used, and whether it was in
fact disclosed to the Linux community. (For developers no longer employed by
IBM, depositions serve this purpose.)”

Did SCO really say that? I still do not believe it.

It seems as if SCO is deliberately trying to make a fool of the court. I cannot
imagine this statement going down very well with the judge(s).

It is hard to comprehend what SCO was actually trying to say, but SCO seems to
be back to its "non-public", indeed "[un]disclosed to the Linux
community", contributions.

It will be very interesting to hear SCO's response to this.

[ Reply to This | # ]

Where does this leave the judges?
Authored by: Anonymous on Wednesday, April 05 2006 @ 03:59 PM EDT
Addendum A (the first one) clearly - and accurately, as we well know - lays out
that SCO have ignored the court's orders for two years now.

Doesn't that reflect as badly on the court as SCO themselves?

I don't say that to criticise the judges - I mean it as a straight question for
the more legally knowledgeable here.

[ Reply to This | # ]

So, it's fully briefed
Authored by: tangomike on Wednesday, April 05 2006 @ 04:20 PM EDT
So, we've had IBM's motion, TSCOG's reply, and now this document wraps up the
briefing.

Now on to the hearing and a ruling, right?

---
Apes have big nostrils 'cause they have big fingers.


[ Reply to This | # ]

Rounds
Authored by: Anonymous on Wednesday, April 05 2006 @ 04:42 PM EDT
While I think it's great that IBM seems to have a clear shot at dismissing two-thirds of SCO's claims immediately, I have to wonder about those 91 claims that aren't getting dismissed out of hand. I have three questions:
  1. Is this going to be IBM's only shot at getting SCO claims dismissed? Is it likely they will let all of the other 91 claims proceed to the next step, and does that limit their options on how to address the 91 claims in the next step? (The memorandum references some kind of IBM expert deadline for may; exactly what does this deadline comprise?) Or is it likely that they will be filing again to have even more claims dismissed after the April 14 deadline? Could some of the claims dismissed after the April 14 deadline be dismissed for lack of specificy?
  2. These 198 items are being dismissed because they do not meet the version, file, line standard. Does that mean that the other 91 items were specified by version, file and line? This is worrying to me. Given SCO's track record I've no doubt most or all of those remaining items are nonsense of some sort, but 91 items in which SCO can so much as point at a specific allegedly misappropriated line of code, if thats really what we have, seems like a lot and may increase their chances of getting a few of those claims all the way to a jury. Do we know whether any of these 91 items are in Linux, or whether they all constitute IBM-owned code "appropriated" into other IBM products under SCO's "viral" interpretation of the UNIX license? In short, when and what is the next possible "round" of dismissals?
  3. Let us say the worst case scenario comes to pass and it turns out one or two of those 91 items represent some fragment of code, even if it's just a few lines long, that appears to have been copied out of an SCO-owned program and into Linux. It seems clear to me that the instant the Linux community learns of the existence of that fragment, it will immediately take action to remove the fragment from Linux as quickly as possible. But, of course, SCO will delay that point for as long as possible, by hiding the existence of that hypothetical code fragment from the public for as long as possible. Does this action limit SCO's ability to claim damage for that code fragment? That is to say, it seems to me that if that infringing code fragment exists, SCO is under an obligation to mitigate the damage by getting the infringement to stop as quickly as possible. SCO is doing the opposite, working overtime to prevent the linux community from finding out about and fixing this hypothetical infringement, deeming only the lawyers of IBM (a large but only tangentially related corporation) worthy to find out the location of that magical, hypothetical code fragment. Is SCO destroying their own case by doing this?

[ Reply to This | # ]

Infringing code
Authored by: Anonymous on Wednesday, April 05 2006 @ 05:03 PM EDT
Hope original (anonymous) poster does not mind me reposting this. It is hidden
away in a thread from a few months ago.

Very appropriate for current situation.

======

With apologies to, and deepest respect for the works of, the late philosopher
Douglas Adams.

"O people waiting in the Shadow of Deep Spin!" she cried out.
"Honoured Descendants of the Groklawians ... The Time of Discovery is
over!"

Wild cheers broke out amongst the crowd. Flags, streamers and wolf whistles
sailed through the air.

Curiously enough, though she didn't know it, the speaker was a direct
female-line descendent of PJ, the Speaker of Facts. Though the only vestiges
left of her mighty ancestry were the effortless way in which she could irritate
SCO-Corp executives and a burning desire to tell the truth.

"Seven and a half million years our race has waited for this Great and
Hopefully Enlightening Day!" she cried. "The Day of the Answer!"

Hurrahs burst from the ecstatic crowd.

"Never again", cried the speaker, "will we wake up in the morning
and think: What is my purpose in life? Is my Linux distro legal? Will I be sued
by SCO-Corp? (motto: 'Our lawyers are your friends'). What, cosmically speaking,
did IBM do wrong?"

"For today we will finally learn once and for all the plain and simple
answer to ... is there any Infringing Code in Linux?"

Two severely dressed men sat respectfully before the terminal and waited. The
descendants of Boise the Procrastinator and Darl the Great Story Teller.

"The time is nearly upon us," said one.

"Seventy-five thousand generations ago, our ancestors set this great
Program in motion to complete Discovery in SCO v IBM," the second man said,
"and in all that time we will be the first to hear the computer
speak."

"An awesome project, Macabee," agreed the first man.

"We are the ones who will hear," said Macabee, "the answer to the
great question of Infringing Code in AIX ... !"

"Linux ... !" said Ambchase.

"And Everything ... !"

"Shhh," said Ambchase with a slight gesture, "I think Deep Spin
is preparing to speak!"

There was a moment's expectant pause whilst panels slowly came to life on the
front of the console. Lights flashed on and off and a discordant buzz came from
the communication channel.

"Good morning," said Deep Spin at last.

"Er ... Good morning, O Deep Spin," said Ambchase nervously, "do
you have ... er, that is ..."

"An answer for you?" interrupted Deep Spin majestically. "Yes. I
have."

The two men shivered with expectancy. Their waiting had not been in vain.

"There really is Infringing Code?" breathed Macabee.

"There really is," confirmed Deep Spin.

"In AIX, Linux and Everything?"

"Yes."

Both of the men had been trained for this moment, their lives had been a
preparation for it, they had been selected at birth as those who would witness
the Finding of Infringing Code, but even so they found themselves in awe that
their quest would finally be over.

"And you're ready to show it to us?" urged Ambchase.

"I am."

"Now?"

"Now," said Deep Spin.

They both licked their dry lips.

"Though I don't think," added Deep Spin, "that you're going to
like it."

"Doesn't matter!" said Macabee. "We must see it! Now!"

"Now?" inquired Deep Spin.

"Yes! Now ..."

"Alright," said the computer and settled into silence again. The two
men fidgeted. The tension was unbearable.

"You're really not going to like it you know," observed Deep Spin.

"Tell us!"

"Alright," said Deep Spin. "The Answer to the Great Question
..."

"Yes '..!"

"... of how many Bytes of Infringing Code there are ... in AIX, Linux and
Everything ..."

"Yes ...!"

"Is." said Deep Spin, and paused.

"Yes ...!"

"Is."

"Yes ... !!! ...?"

"Forty-two," said Deep Spin, with infinite majesty and calm.

It was a long time before either of them spoke. Out of the corner of his eye
Macabee glimpsed the sea of Groklaw banners fluttering gently in the square
outside.

"We're going to get lynched aren't we?" he whispered.

[ Reply to This | # ]

  • Infringing code - Authored by: Anonymous on Thursday, April 06 2006 @ 12:20 AM EDT
IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: ExcludedMiddle on Wednesday, April 05 2006 @ 05:18 PM EDT
If you think about it, this is one of the first times that the judge can be
definitive about something that can really affect the case. He dismissed the
PSJs without prejudice until discovery was over. But on these points, the judge
can finally rule on something that will stick, and have a meaningful impact in
limiting the scope of the case.

I hope that this will go well. I think that it probably will. IBM has very
carefully made its side clear on these, and I just cannot see how a file without
a specific Linux version, or without the companion UNIX files, is of any use at
all. I especially don't understand how there could be any fairness to be accused
in a multi-billion dollar lawsuit without any specificity to each claim.

I assume that there will be a hearing about this. I will find that one probably
more gripping than most that we've seen. This one, if ruled in IBMs favor, has
some finality to it. One of the few things that does before the PSJs are finally
refiled.

[ Reply to This | # ]

IBM surprised me.
Authored by: skidrash on Wednesday, April 05 2006 @ 05:23 PM EDT
I would have liberally used the words "unilaterally violated" early
and often.

Surely Judge Kimball has read Judge Wells' decision (or heard of it).

[ Reply to This | # ]

  • IBM surprised me. - Authored by: Anonymous on Wednesday, April 05 2006 @ 06:19 PM EDT
IBM's Reply Memo in Further Support of Motion to Limit SCO's Claims
Authored by: Anonymous on Wednesday, April 05 2006 @ 06:17 PM EDT
I get the feeling that the table was also aimed at the outside world.

Tufty

[ Reply to This | # ]

Is this a possible delay tactic?
Authored by: Anonymous on Wednesday, April 05 2006 @ 07:56 PM EDT
Could the judge give SCO a break and offer a chance to correct the deficiencies
(lack of specificity) of its complaints? Or could the granting of IBM's motion
lead to appeals?

What about taking the full measure of IBM's postion? Could IBM be pacing
themselves so that they still have plenty of momentum after demolishing the SCO
case that they can unleash pain upon some of the more incidious opportunists?



[ Reply to This | # ]

Motion to Limit SCO's Claims
Authored by: webster on Wednesday, April 05 2006 @ 08:21 PM EDT
Specificity and Relevance

1. IBM wrote this to be persuasive. They did not write it for the public.
They pulled no punches. The fact that it is clear and easily understood by
nonlawyers is fortunate and convincing. Their defense is clear and simple.
With law and facts on your side it is easier to explain your winning issues.

2. This is a motion to strike evidence. SCO can't go into a trial without
first disclosing the evidence of their claim. Each claim has to say lines
"a-b-c" of SysV became lines "d-e-f" of linux. SCO would
love to introduce their accusations, introduce lines of code, introduce thier
expert opinions, argue their claims and damages. They want to do this without
specificity. IBM won't let them. It is too late for SCO. They don't have
specificity. Any code that can't be specified to part of a claim is irrelevant
and therefore inadmissible.

3. SCO has nothing. If they did, they would have specified it in the PSJ's.
They did not know what Kimball was going to do. They would not have risked
withholding anything at that point. With this motion they may have less to talk
about at the next round of PSJ's.

4. It is getting extremely dangerous for SCO and their lawyers. Kimball has
let this go on and on. If he adopts IBM's view that SCO has been acting in
"bad faith", there is no limit to the sanctions he could impose. He
might not bother, but he could. It also depends on how much IBM will push for
sanctions beyond striking the irrelevant disclosed evidence. Just think of what
the legal fees would amount to for the dilatory discovery battles! A sanctions
ruling could put SCO and their attorneys out of business. One has to wonder
what evidence began this venture. What did the lawyers rely on? Was it
reasonable to rely on this evidence in the lignt of contrary opinion, and the
GPL? Lack of copyrights and patents? and the flimsy one-sentence contract
theory? SCO has to be tongue-tied. The evidence they throw out is not
specific, irrelevant, does not support their claim. They can't say they have
nothing either. They've made their millions from the PIPE Fairy. At this point
they are trying to keep the millions and buy more valuable time.

5. None of this was ever meant for trial, a cheap settlement at worst. It was
part of the FUD campaign. Ironically, it damaged the FUD campaign.

6. Wilfullness and bad faith. Suppose SCO is wilfully holding back on specific
evidence for tactical advantage. That would be merely wilfull. Suppose they
are wilfully holding back on specific evidence but throwing this stuff out
there, because they have no specific evidence. That is bad faith. It is a lie.
If they don't have specific evidence, they should say so, or say nothing. To
submit these 200 items without the required specificity is 200 lies. It is as
easy as 1, 2, 3. If they can't make an evidentiary chain for each item from
SYSV to Linux, then they do not have a claim. Each unspecified claim is a lie
and wasting the court's time. Wells ain't going to like it.

---
webster

[ Reply to This | # ]

is --> it
Authored by: ankylosaurus on Thursday, April 06 2006 @ 12:55 AM EDT
At: To create the false impression that is has provided information...

I've not verified whether this is a transcription error or is a problem in the
original.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Guesswork and Wild, Speculative Prediction
Authored by: DaveJakeman on Thursday, April 06 2006 @ 09:14 AM EDT
Guess 1: The table in Addendum B preserves the sequence of SCO's original 294
"items" in their Final Disclosures.

Guess 2: The original sequence of that list is significant. SCO would probably
start off with the *really important* items first and leave the wimpy feeble
stuff till last.

Fact 1 (yes, a fact!): The first two items are to remain (at least until IBM
shoots them out of the sky).

Speculative Fact 1 (a speculative fact?): Items 3-112 are laughable.

Wild, speculative conclusion 1: the first two items are what *SCO* consider to
be *really important*.

Wild, speculative prediction 1: the number of items of hard evidence of illegal
copying into Linux depends upon who you are:

- If you are a happy SCO Investor: 294
- If you are a slightly better informed SCO Investor: 293
- If you are SCO: 2
- If you are IBM: 0
- If you are a judge: to be determined.
- If you are a Groklawyer: just hurry up!

---
SCO: hunting for snarks in an ocean of sharks
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

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