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First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?"
Friday, April 14 2006 @ 04:24 PM EDT

Chris Brown attended today's hearing in SCO v. IBM and sends this quick message:
Taken under advisement. Rochkind declaration allowed, but IBM has 10 days for expert to rebut it. More when I get home.

I won't comment until we have more details. But I knew you'd want to know as fast as I knew. Here's the SCO motion to file the declaration, which IBM opposed or in the alternative asked for more time to respond to, which is evidently what happened.

Update: More from Chris:

I've just returned from the SCO v. IBM hearing.

The short of it is that IBM's motion on the 192 items has been taken under advisement. The court will accept the declaration of Marc Rochkind, but will allow IBM 10 business days to submit an expert rebuttal.

David Marriott argued for IBM and Stuart Singer argued for SCO.

Before I write my full report, I'll mention a couple of quotes.

Judge Wells to SCO's Stuart Singer: "Does SCO have, can they provide, additional specificity... I mean, basically, Is this all you've got?" Stuart Singer replies: "There might be that in the last two months, that more has been discovered, but yes, at the time of the disclosure we provided all we have."

2d UPDATE: Chris now is home and begins the full report. This is part one. It was a 2-hour hearing:

Quite a few lawyers turned out for today's hearing. For IBM, David Marriott, Amy Sorenson, Jeremy Brown, and a couple others were present with David Marriott arguing. For SCO, Stuart Singer argued with Brent Hatch, Ryan Tibbets, and others present.

There was a short discussion of what was to be heard, and David Marriott yielded the podium to SCO's Stuart Singer to present why Marc Rochkind's declaration should be accepted. Stuart said that IBM elected not to submit an expert declaration with their original motion, but instead filed it with their rebuttal. The only way SCO could reply to the declaration is as they have done, that it is perfectly proper.

David Marriot replied that despite what the date of service says, they first received the declaration less than 24 hours ago. SCO said something in its opposition papers that we believe was wrong, he said. Professor Davis only created a table summarizing the versions, files, and lines of code identified in SCO's final disclosure. Rochkind's declaration is on something entirely different. IBM's reply brief does not raise any new issues while Rochkind's does.

Judge Wells asked "How does it hurt you?" to which David Marriott replied "It doesn't hurt us in the slightest way. As long as we have an oportunity to reply it doesn't hurt us." Judge Wells asked why IBM did not submit the expert report with their motion. David Marriott said that it was only when SCO denied what they'd asserted in their motion that they had to rebut it. Otherwise it would just be he-said, they-said. So they needed an expert.

Stuart Singer said that the Rochkind declaration says that in Methods & Concepts the specificity that SCO provided in their final disclosure is sufficient.

Judge Wells said that she will allow the declaration to be submitted and that Dr. Davis can reply within 10 days. (Later the 10 days was clarified as being 10 business days.)

So now we can see why Wells allowed the declaration -- IBM said it doesn't hurt them, so she would naturally take the safer choice, to allow it. In general, you allow the plaintiff every opportunity to make a case. Had IBM argued that they would be harmed by allowing it in, it might have been different.

What we learn from what Chris is reporting is that this is all about methods and concepts, apparently. That is evidently what SCO's expert is testifying about, something that SCO didn't indicate on its list. That is what I suspected when I saw the list, actually, that they were trying to keep from revealing that this is what their case is really about. I suspected it because otherwise there isn't anything there on the list to shake a stick at. By bringing its motion, IBM flushed SCO out of the bushes, and now it's on the table.

3d UPDATE:

And now, all the details from Chris:

David Marriott spoke first on IBM's motion to drop the 198 items on SCO's final disclosure, which IBM believes fail to provide the requisite specificity. He said that he had four main points -- the first that the court specifically ordered SCO to identify "version, file, and line" of code; second, that SCO lacks the required specificity; third, that as a practical matter IBM is at a disadvantage; and fourth, that the only remedy is to not proceed on these 198 items.

David Marriott provided a binder to the court for reference and indicated by reference to tab 1 that the chronology of this motion is long, having started in 2003, only one or two months after SCO filed the lawsuit. He refers to tab 2 and says that SCO contends IBM "dumped" AIX or Unix code into Linux. IBM has been requesting this information for three years. He says that Unix SysV has 11 versions, 112,000 files, and millions of lines of code. AIX has 9 versions, some large number of files, and 1.2 billion lines of code. Dynix has 156 million lines of code, and Linux has over a 100 versions and over 1 billion lines of code. Thus SCO potentially implicates over 2 billion lines of code.

He refers the court to tab 3 and reminds Her Honor that she has repeatedly ordered SCO to identify, with specificity, versions, files, and lines of code. Never in this case has SCO asked for relief from any of these orders. The orders were crystal clear. Mr. Marriottt went over in detail the wording used in the cour's orders to fully, with specificity, and in detail, identify the code. It was so ordered four or five times.

In his second point, he said that SCO's final disclosures lack the required specificity, that it is indisputable that for these 198 items the version, file, and line information is not there. Referring to tab 5 (Addendum 5 to IBM's reply paper, the chart by Professor Davis), Mr. Marriott demonstrates how the chart shows the disputed operating systems AIX, Dynix, Unix, and Linux. He says that a number of these 198 identify Linux versions or files, but they do not provide information on how AIX, Dynix, or Unix are infringed. He said that Rochkind played the primary part in assembling SCO's final disclosure.

His third point was that as a practical matter, IBM is at a disadvantage to fairly defend itself. He compared it to SCO pointing to a giant haystack of 2 billion lines of code and IBM being told to find 198 needles. The original allegation was that IBM dumped lines of Unix code directly into Linux. He went over the types of things IBM would have to determine, such as who wrote the code, is it copyrighted, is it public domain, was it accepted in a patch, it is protectable, is it an unprotected idea, method, etc. He gave as an example an item that SCO did identify with sufficient specificity, that IBM was able to investigate it fully, and on that item was able to demonstrate that it was publicly available and published by Intel, line for line, in 1989.

His fourth point was that the only appropriate remedy is that these 198 be dropped. Judge Wells asked why is this appropriate rather than at summary judgment. David replied that with this it would be very messy at summary judgment, that SCO has not provided enough information to work from. He quoted Judge Wells' statements at an earlier hearing where she admonished counsel about withholding information.

Stuart Singer responded for SCO and provided another book of material to the court for reference. He said that some of this material is confidential but that he believed he could refer to it in this manner. He said he has three arguments, independant reasons, to deny IBM's motion. The first that SCO has complied by disclosing misused material but that there are differences in specificity for methods and procedures. Second, that IBM has no evidence SCO has willfully withheld information, which would be required for discovery sanctions. I didn't catch Stuart's third reason.

On the first, SCO said that they have identified with specificity, but that with technologies the code is not required. Judge Wells reminded him that the orders were to specify files, lines, but that now SCO's talking "technologies". Stuart replied that when SCO was talking about code, they were talking about methods and concepts. Judge Wells says that they have not argued that until now. Mr. Singer said that methods and concepts don't require file, line. Judge Wells said she doesn't remember ever talking about methods and concepts, that we've always been talking about the code. Judge Wells said, "Look at the specific orders". Stuart said they've complied where appropriate, that there has not been a requirement for SCO to identify files and lines for methods and concepts. Where they related to code, they have been identified. He said the contracts between SCO (sic) and IBM required it to keep methods and concepts confidential. He said IBM argues that if it's not source code with file, line, and version, it's not actionable.

He referred the court to tab 7 and provided a summary of the Rothkind declaration. In 130 of the 198, it has the "disclosure" itself. For 168, the file locations were specifically provided.

He drew the court's attention to item 146, indicating it's for a method and concept. It references an article by "McKinney", an old Sequent employee, and points to an IBM web page that they don't have access to. The article is about "Differential Profiling" and refers to scripts on the website. The item has emails between the person making the Linux submission and an individual familiar with the methods and concepts of the protected code. "So we have the identities of the individual making the disclosure, the emails, and reference to code for the methods and concepts."

He said that to throw these out as discovery sanctions, there must be proof of willful withholding of information. There is no such information. What we have is a list of items IBM would *like* to drop. He quoted some cases. He said that if IBM wants to, they can bring summary judgment motions. IBM is seeking discovery sanctions when they have actually sent out an order, after the case was filed, directing their employees to purge their "sandboxes" of AIX and Dynix/ptx code. He said that one developer said he had actual Linux code that he purged. Judge Wells says "That may or may not be true, but I want to stick with things that are properly before the court."

Mr. Singer continued with some more discussion of the items. He said in item 52 (2?) "Method and Concept about Improving Locking," IBM employee "Wright" sent an email to "Daniel Phillips" explaining the "classic Dynix method" and telling Daniel that this is not something currently in Linux. They indicate they have an admission from Wright in his deposition that this came directly out of Dynix/ptx.

From item 38, methods and concepts, SysV "Automatic Method of Making Updates in Memory" he mentioned a specific email with express reference to SysV release 4 for method and concept.

Item 22, "Multiprocessing". Mr. McKinney, again, with a specific email, deposition testimony, and admissions of disclosure of Dynix/ptx methods and concepts.

He pointed out item 23, for "Negative Know How", saying it's a disclosure of how *not* to do something. Where "Martin Bligh", in an email, is telling someone "We are trying to get Linux to have the benefits of (blank) without the pain." That he provided the specifics.

Mr. Singer said that the IBM motion should be denied.

Judge Wells then asked Mr. Marriott to address the "willfulness" issue in his remarks.

Mr. Marriott said that what he heard from SCO was a presentation that had little relation to IBM's motion. He says that the 198 are all deficient.

His first point was that the court had repeatedly ordered lines of code. He agrees that SCO has said methods and concepts, but that the orders applied equally to methods and concepts. He said methods and concepts exist as they are implemented in code. They do not exist in the "ether." SCO must describe, in detail, the location of any method. Location means file and lines of code.

He said that Mr. Singer did not refer to IBM's table (indicating the 198 and files, lines, versions, etc). He said the table is indisputable. The case is about code. We've been pointed to a bunch of our own documents and emails. SCO said, "Here, you know what you did, talk to your own developer, he knows what he did." But that they don't identify the allegation.

Mr. Marriott talked at length about how IBM needs the specifics of the allegations SCO claims IBM has done. That they must have them to know what they are to defend themselves from.

SCO claims that we've disclosed UNIX SysV release 4 internals, Marriott continued. He held up a book ("The Magic Garden Explained, The Internals of Unix System V, Release 4") copyrighted 1994. He said Unix internals have been in public for over a decade. He reiterates that IBM needs specificity; otherwise they are severely prejudiced in preparing for summary judgment.

Stuart rebuts. He said that IBM uses an assumption that for every method and concept, there's source code. He claims that not supported in case law.

Judge Wells asked: "Does SCO have, can they provide, additional specificity?... I mean, basically, is this all you've got?"

To which Stuart replied: "Since, the last two months, it's possible we've discovered more, but, yes, at the time of the disclosure we provided all we have."

Judge Wells asked about SCO only providing links to websites in their final disclosure. Stuart said, yes, it points to a password-protected IBM website.

Stuart said that they have provided the requisite specificity in their disclosures and that there is no evidence of willfulness.

Mr. Marriott then mentioned Judge Kimball's order about dates to disclose by. He said that methods and concepts exist in their implementation in code, not just in the air.

He reminded the court that AIX and Dynix are IBM's product. SCO claims that AIX and Dynix are derivatives of Unix and therefore they control it. SCO has not provided any lines of Unix System V code they say it is derived from. He said that SCO is the master of their allegations, that they must disclose exactly what is being alleged. IBM cannot do that.

Judge Wells asked Stuart Singer: "How do you address that you maintain custody of the allegations and not provide them to IBM?" Stuart denied that and said that if there is something new that SCO brings up, IBM can object at that time.

Judge Wells concluded the hearing saying that she will take it under advisement and reminds that IBM is to provide expert rebuttal within 10 business days.

That's it. I really couldn't get any feeling from the Judge how this will go.

I think we can see the dance now. IBM brought the motion for a purpose, the stated purpose. If it wins, fine and dandy. If it doesn't, it has won the following: we know now that the case is about methods and concepts now and pretty much nothing else. Think back to what SCOfolk told the world the case was about in 2003 onward, and see if it matches.

We know that at least one item that SCO did mention with specificity on its list was proven already to be bogus.

We know now that the judge, who has seen the Rochkind Declaration, said to SCO, "Is this all you've got?"

And we know now that Rochkind, who is not, as I've pointed out, a Linux expert from what I've seen him say about himself, was the person who helped SCO make up its list, which was a list essentially of Linux files.

And we know that Wells gets it, that this methods and concepts claim isn't what SCO told the court the discovery they claimed they needed was for. Indeed, if what SCO today said is true, that you don't need lines and files and versions if the claim is about methods and concepts, why did they ask for all that AIX code in the first place? IBM was put to great expense, and the case was delayed, and IBM might just like SCO to have to pay for all that, if it was just a fool's errand.

And we've heard SCO's attorney hint that they may introduce more "evidence" which I predict they'll claim to have just discovered in the last two months. I gather they feel their only hope is surprise.

IBM with this motion forced them to put at least one significant card on the table. You are not supposed to have to go to such lengths just to find out what the claim against you is, but Utah is Utah and SCO is SCO, but the bottom line is, SCO was forced to tell what they are suing about, not yet with sufficient specificity, but if the court allows their list to remain intact, SCO will surely have to explain its claims. At last.

The only question now is whether Wells understands the tech enough to understand what David Marriott told her, that methods and concepts are found in the code, not in thin air, which is all SCO wanted to put on the table. Because IBM gets to answer the Rochkind declaration, with Randall Davis, no doubt they'll explain all that very, very clearly, with cases and charts or whatever is needed to make sure the tech is as plain as day to Judge Wells.

And I hope they remember what SCO said to eWeek, not to the court, about Harry Potter, Vanilla Ice and their theory of copyright infringement including methods and concepts. A reminder:

McBride: A lot of code that you'll be seeing coming on in these copyright cases is not going to be line-by-line code. It will be more along the lines of nonliteral copying, which has more to do with infringement. This has more to do with sequence, organization, which is copyright-protectable. It's interesting when you go down this path that everyone wants to go to the exact lines of code, but most copyright cases… are not line-by-line, exact copies. It's too obvious. Most copyright infringement cases come from these nonliteral implementations of the same code or literary work.

Sontag: My favorite example is the Russian author [Dmitry Yemets], who lost in a copyright case [after being sued by] J.K. Rowling, author of the 'Harry Potter' books, in a Dutch court. He had written a book: It was a girl, not a boy, with magical powers who rides a magical fiddle and not a broom, goes to a boarding school to learn witchcraft and wizardry, plays a game of throwing balls through hoops. All these things were very similar to Harry Potter. Could someone else ever write a book about wizards and witches? Sure. But when the structure and sequence is the same…maybe the words, the code, isn't exactly the same, but Linux is trying to be just like Unix System V. The question is whether Linux was trying to be like Unix System V by doing it in ways that were illegal.

McBride: Before all of this is said and done, you'll see people saying that SCO already published a lot of this stuff in books but that these books contained copyright-protected materials.... No, that's (Lions' book) ancient stuff. We're talking about recent stuff posted as a result of the BSD [Berkeley Software Design Inc.] settlement. There are things out there that help people understand how to program to System V application binary interfaces [ABIs], to help them hook up to the OS. It was out there to help people write applications. It wasn't published to help someone knock off the OS and create a free version of System V. ... The analogy I like to use is Vanilla Ice's "Ice Ice Baby" versus David Bowie and Queen's "Under Pressure." If you just look at the words, I don't see a copyright violation, but if you listen to the riffs, you can hear where they're the same.

SCO told the court that IBM has no proof of willfulness. Please note that the eWeek interview was in May of 2004.

4th Update: I asked Chris if he had any idea what was in the Rochkind Declaration. Could he see it? And yes, he could, and it was very much like IBM's chart, but with different categories. Here's what Chris says:

The Rochkind declaration seems to be a table, not unlike IBM's, but that has different information on each of the things. It appears to specify what SCO *did* include for each allegation and whether it meets the requirements for a Methods and Concepts allegation (with, of course, lots of filled in check boxes).

The table, on a couple of plain sheets of paper, was held up for reference by both Stuart Singer and David Mariott. The table's columns were explained. It looks so similar in physical appearance that David Marriott at one point mistakenly held it up as if it was his own table, then corrected himself saying "refer to *our* table that looks *just like* their table."

But the columns are not Unix, AIX, Dynix, Linux etc. The columns are, I believe, things like "Admission", "Disclosure Included", "Meets Req'mts for Methods & Concepts", & etc. (Those are not the titles, but something like this.) So while it's not really like IBM's, it was SCO's method of showing that though those allegations might be lacking in source code, they contained sufficient evidence, in SCO's opinion, to meet the requirements for specificity and therefore should not be thrown out.

David Marriott pointed out that SCO's allegations lack a "real" allegation. Alleging that IBM put *their own* code, methods & concepts, whatever, into Linux doesn't bother them in the least. What SCO was missing was how this relates to anything SCO owns. SCO didn't say "This method and concept comes from Unix Sys V, R4, file xyz, lines 67-278 and can be shown to be implemented in Linux version 2.4.16, file xyz_1.c, lines 120-400 and this admission/submission/email/whatever shows IBM caused it to be put there." That's what's missing from SCO's final disclosure.


  


First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?" | 809 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-Topic here, please....
Authored by: perpetualLurker on Friday, April 14 2006 @ 04:31 PM EDT

And please remember to try for clicky-links! Thank you!

---
Life is not measured by the number of breaths we take, but by the moments that
take our breath away.

[ Reply to This | # ]

Corrections Here
Authored by: feldegast on Friday, April 14 2006 @ 04:31 PM EDT
So PJ can find them.

---
IANAL
The above post is (C)Copyright 2006 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use

[ Reply to This | # ]

First Report from the Hearing
Authored by: Anonymous on Friday, April 14 2006 @ 04:34 PM EDT
The schedule has been broken.

SCO wins (at least this round).

Want to bet how long they can milk this delay? I would guess longer than any of
us can imagine.

[ Reply to This | # ]

First Report from the Hearing
Authored by: Anonymous on Friday, April 14 2006 @ 04:47 PM EDT
Unless there is something awfully convincing, but under seal, I just do not
understand how this "Drunken Sailor" of a law suit remains standing.

I am increasingly embarrassed to call the US Legal System my own.

[ Reply to This | # ]

What?
Authored by: Anonymous on Friday, April 14 2006 @ 04:49 PM EDT
So that was the sum total of the hearing today? It lasted like 10 seconds?

What a downer, I was looking forward to having good news going into the Easter
weekend :-(

[ Reply to This | # ]

  • What? - Authored by: Anonymous on Friday, April 14 2006 @ 04:57 PM EDT
    First Reaction from the Hearing - Premature
    Authored by: webster on Friday, April 14 2006 @ 04:49 PM EDT


    You have to give a mark to SCO for their timing and coj...chutzpah. They won
    the admission of their declaration and thereby also took the focus off the
    specificity a bit. They also get time to file more stuff on it whether it's
    allowed or not.

    At the same time it looks bad for them. A denial would have been easy for the
    judge. Letting in the declaration and giving IBM time to shred it for lack of
    specificity look to be her maintaining the posture of fairness. Better to be
    right than quick.



    ---
    webster

    [ Reply to This | # ]

    Implications for Red Hat case?
    Authored by: Anonymous on Friday, April 14 2006 @ 04:51 PM EDT
    Did I read "one more delay and Red Hat case would start"?

    [ Reply to This | # ]

    The Rochkind Declaration
    Authored by: Anonymous on Friday, April 14 2006 @ 04:56 PM EDT
    I know we have no idea exactly what is in the Rockkind declaration. But, do we
    know how big it is? I mean is it big enough to answer file, version, and line
    questions?

    Was this filed under seal? Will we ever get to see it?

    [ Reply to This | # ]

    First Report from the Hearing
    Authored by: ExcludedMiddle on Friday, April 14 2006 @ 04:59 PM EDT
    Since when is a fully briefed motion allowed to be amended like this right
    before the hearing, and without proper notice of the opposing council?
    Especially when it's expert evidence that should probably be rebutted by another
    expert.

    I agree with an earlier post in this one. SCO was attempting to take the focus
    off of the 198 insufficient claims. I wonder if they were playing to the fact
    that Wells is a magistrate judge, and probably spends more time dealing with
    these types of issues rather than ones that could drastically change the outcome
    of the case, which this motion could certainly achieve.

    I'm really surprised by this leniency that Wells is granting. But, then again,
    SCO's lawyers have at least proven to be masters of delay. How long, though,
    until the final deadline is up? When the horse is put on the stand, will it
    sing? I still doubt it. But it needs to have its day in court.

    [ Reply to This | # ]

    Delay achieved
    Authored by: Anonymous on Friday, April 14 2006 @ 05:05 PM EDT
    So, 10 days for IBM to rebut it-- does that mean in 10 days we get the
    "real" hearing and the judge decides concerning whether the couple
    hundred unspecific items get tossed or not? Or does this mean 10 days for IBM to
    file a rebut, then another delay while a hearing is scheduled?

    Could this delay ripple through to create further delays? I at some point got
    the impression that IBM would need a ruling one way or the other on the
    "lack of specificity" thing promptly in order to complete their other
    expert reports as the deadline for the next round of PSJs approaches. If this
    ruling is delayed any further, will this create undue time pressure on IBM?

    [ Reply to This | # ]

    Estoppel?
    Authored by: blang on Friday, April 14 2006 @ 05:14 PM EDT
    The "more rope to hang them with" analogy is something we hear
    everytime SCOX is allowed to do something outside schedule or other rules of the
    court. That is is part if a strategy to get the final rulings of the case immune
    to appeals.

    But is this really so? Isn't it the judge's job to rule over his court? So
    when one of the litigants are constantly given favors, he cannot hold those
    favors against them when later making a ruling on substance. In a way the judges
    set themselves up for some sort of estoppel.

    If a litigant is given as much favors as SCO has received they would have won a
    close case handlily. To me it looks like the blind lady Justice has a finger on
    the scale, turning what should have been a slam-dunk case into a cliffhanger.

    [ Reply to This | # ]

    Have I got this right?
    Authored by: Anonymous on Friday, April 14 2006 @ 05:17 PM EDT
    IBM filed a motion to limit SCO's claims. It asks the judge to discard most of
    SCO's claims. That's what was being heard today.(?) That's what was taken
    under advisement.(?) Were we expecting a decision today?

    To counter IBM's motion, SCO asked to take a deposition from an expert witness.
    The judge granted that but gave IBM an extra ten days to refute it. Of course
    IBM has to file that with the court and the court has to consider it. When do
    we think there will be a decision about tossing out all those claims?

    I suppose I should be able to figure out the answers for myself but I'm feeling
    totally lost right now.

    [ Reply to This | # ]

    First Report from the Hearing
    Authored by: Anonymous on Friday, April 14 2006 @ 05:22 PM EDT
    Maybe reading Groklaw tends to give one
    a rather one-sided view of this case.
    Certainly, it seemed that SCO pulling
    this Rochkind stunt was not going to
    help them -- if you listened to the posts
    here.

    But it turns out that it was another
    masterstroke of delay based upon
    absolutely exquisite timing.

    Although the evidence appears to be
    entirely in IBM's favour, I think
    the award for pure lawyering this case
    should probably go to Boise et. al.

    I am amazed and hope the transcript of
    the hearing sheds some light on this
    unexpected development (again - unexpected
    from the point of view that one would
    glean from a representative sample of
    posts here).

    [ Reply to This | # ]

    ANOTHER permission to break the rules?
    Authored by: dwheeler on Friday, April 14 2006 @ 05:36 PM EDT
    An occasional mistake happens in a case, so an occasional bout of flexibility makes sense... but this is rediculous. SCO is getting concession after concession, making schedules a complete farce.

    This case has been going on since March 2003 -- three years and a month, and counting. We still haven't finished DISCOVERY, in fact, we just got yet another input from SCO on THEIR SIDE of discovery. Yes, IBM can afford it... but is it fair that they should have to? The whole point of the discovery rules is to let the defendent (IBM) know what it is accused of doing, in enough specificity and with enough time so that it can defend itself. What's happening now is not justice; it's becoming a mockery of it.

    Yes, when SCO is given this many favors, it should make the case harder to appeal once they lose. But no one can get the lost time back, which keeps stretching on forever.

    I would like to see SCO finally told to STOP breaking the rules, and actually meet their obligations. No more games. I respect judges -- they have a very hard job. But a judge that grants concession after concession like this has begun to lose control of their courtroom, and risks having malicious entities walk all over the time of the court and their opponents.

    Justice delayed is justice denied.

    [ Reply to This | # ]

    Schedule?
    Authored by: Anonymous on Friday, April 14 2006 @ 05:37 PM EDT
    Isn't there a danger that IBM pulled SCO into the next phase of litigation by
    introducing expert testimony and inviting rebuttal expert testimony again to be
    countered but making the question of dismissal moot?

    [ Reply to This | # ]

    • Schedule? - Authored by: PJ on Friday, April 14 2006 @ 07:23 PM EDT
    Why is everyone assuming this will cause a delay?
    Authored by: Anonymous on Friday, April 14 2006 @ 05:39 PM EDT
    Wells took this under advisement. This was almsot a fregone conclusion; she is
    going to want a written opinion for this decision). So, she has to, at the very
    least, review the transcript, review the docuemtns, review the law, and write
    her decision. It looks like she may be going on vacation next week anyway;
    would anyone expect this decision in less than 3 weeks or more anyway?

    So SCO gets to submit their expert's declaration, IBM gets to respond and have
    the last word (and I strongly suspect IBM wotn take near to their 10 days to
    respond), and Wells rules based on all that. I don't see that this necessarily
    has to add one minute to the schedule that was in place this morning.

    [ Reply to This | # ]

    If Randall Davis is smart
    Authored by: stend on Friday, April 14 2006 @ 05:45 PM EDT
    Hi, Darl!

    ---
    Please see bio for disclaimer.

    [ Reply to This | # ]

    More specificity?
    Authored by: BobDowling on Friday, April 14 2006 @ 05:47 PM EDT

    I don't understand Judge Wells' question:

    Does SCO have, can they provide, additional specificity... I mean, basically, Is this all you've got?

    As I understood it, the deadline for further specificity (line numbers etc.) had passed. Why is the Judge even asking the question? If SCO were to provide further specificity now wouldn't it be disallowed?

    [ Reply to This | # ]

    Is there a basis for appeal ...
    Authored by: agriffin on Friday, April 14 2006 @ 05:50 PM EDT

    Is there a basis for appeal resulting from judical nonfeasance or judical misfeasance?

    Definitions for those that might need them:

    Malfeasance is any act that is illegal or wrongful.
    Misfeasance is an act that is legal but improperly performed.
    Nonfeasance, by contrast, is a failure to act that results in harm.

    [ Reply to This | # ]

    SCO's case in a nutshell: some infringing code
    Authored by: Anonymous on Friday, April 14 2006 @ 05:52 PM EDT
    #include <errno.h>

    /*

    If you're a programmer at all, you now know how lame this case is...

    */

    [ Reply to This | # ]

    Does Wells Necessarily Have to wait for the Reply?
    Authored by: MT on Friday, April 14 2006 @ 05:52 PM EDT
    Could Judge Wells, taking this under advisement, decide "I don't even need
    IBM's reply to SCO's expert submission. It is clear that IBM is right and SCO
    is wrong. I order the 198 items stricken." ?

    [ Reply to This | # ]

    First Report from the Hearing - Updated 2Xs
    Authored by: Anonymous on Friday, April 14 2006 @ 05:53 PM EDT
    IBM flushed SCO out of the bushes, and now it's on the table.

    Indeed. The cat is out of the kettle and into the fire now. Now that the dead horse has been punctured, SCO's chickens are going to burn like a house of cards before they've hatched.

    [ Reply to This | # ]

    First Report from the Hearing - Updated 2Xs
    Authored by: Anonymous on Friday, April 14 2006 @ 05:54 PM EDT
    "Does SCO have, can they provide, additional specificity... I mean,
    basically, Is this all you've got?"

    "There might be that in the last two months, that more has been discovered,
    but yes, at the time of the disclosure we provided all we have."

    It may be me, being english, but it seems to me that while judge wells is
    asking about specificity, hes replying about actual code, as in they will want
    to add more code claims later?

    How do you make something like this more specific two months down the line?
    And would it be allowed to be introduced, either sodewise, or for
    clarity?specificity

    [ Reply to This | # ]

    "Is this all you've got?"
    Authored by: Anonymous on Friday, April 14 2006 @ 05:56 PM EDT
    For those in attendance today. What was the tone of voice that Judge Wells used
    when delivering this line?

    What is incredulous? or what?

    [ Reply to This | # ]

    First Report from the Hearing - Updated 2Xs
    Authored by: Toon Moene on Friday, April 14 2006 @ 05:57 PM EDT
    > Stuart Singer said that the Rochkind declaration says
    > that in Methods & Concepts the specificity that SCO
    > provided in their final disclosure is sufficient.

    Ach, so - they finally found a person to "support" their theory that
    "methods & concepts" is a sufficient discriminator to prove
    copyright infringement ?

    Time for the multicians to step forward ...

    http://www.multicians.org

    [ I've only worked in Operating Systems for 7 years,
    these guys and gals are the cream of the crop ]

    ---
    Toon Moene (A GNU Fortran maintainer and physicist at large)

    [ Reply to This | # ]

    192 or 198 Items?
    Authored by: Anonymous on Friday, April 14 2006 @ 06:03 PM EDT
    Chris?

    [ Reply to This | # ]

    Methods and Concepts with Specificity
    Authored by: rsteinmetz70112 on Friday, April 14 2006 @ 06:09 PM EDT
    Why is it not possible to locate methods and concepts with specficity?

    Concept XYZ is in Unix file 'xxxx' and lines 'abcde' and in Linux file 'yyyy'
    and lines 'fghij'.

    What's hard about that?

    ---
    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

    [ Reply to This | # ]

    Enough rope?
    Authored by: Anonymous on Friday, April 14 2006 @ 06:10 PM EDT
    Iknow everyone keeps saying that the judge is giving SCO enough rope to hang
    themselves and to limit the possibility of a successful appeal but the question
    now must be 'How much rope is enough for heavens sake?'

    How is it that SCO is allowed the better part of three years to TRY and make a
    case and IBM will only be allowed a few short weeks to try and bury it,
    considering that delays like this eat into the very time IBM is allowed to
    defend itself...how on earth can this be called justice ???????

    [ Reply to This | # ]

    Remember the confidential IBM emails?
    Authored by: Anonymous on Friday, April 14 2006 @ 06:47 PM EDT
    Remember the confidential emails that Maureen & co. tried to unseal and SCO read in open court? Here is what that was all about:
    ... IBM is seeking discovery sanctions when they have actually sent out an order, after the case was filed, directing their employees to purge their "sandboxes" of AIX and Dynix/ptx code. He said that one developer said he had actual Linux code that he purged. Judge Wells says "That may or may not be true, but I want to stick with things that are properly before the court."

    So the first email was probably sent to Linux developers saying that, as a precaution, anyone working on linux should not be looking at the AIX and Dynix code. Makes sense. There is not enough detail to figure out what the second one was about.

    I can see now why SCO was so desperate to expose those emails -- they could have a field day spinning it. But all it really shows is IBM doing its due diligence, something which SCO has been avoiding.

    [ Reply to This | # ]

    Hmmmm
    Authored by: Anonymous on Friday, April 14 2006 @ 06:52 PM EDT
    I found these rather interesting:
    ...SCO said that they have identified with specificity, but that with technologies the code is not required. Judge Wells reminded him that the orders were to specify files, lines, but that now SCO's talking "technologies". Stuart replied that when SCO was talking about code, they were talking about methods and concepts. Judge Wells says that they have not argued that until now. Mr. Singer said that methods and concepts don't require file, line. Judge Wells said she doesn't remember ever talking about methods and concepts, that we've always been talking about the code. Judge Wells said, "Look at the specific orders". Stuart said they've complied where appropriate, that there has not been a requirement for SCO to identify files and lines for methods and concepts. Where they releated to code, they have been identified...
    Does that mean that there haven't been any such lines as I don't remember any specific lines being mentions - or are they under seal? Also, the underlying tone I get of Judge Wells is that she is rather not happy that they are misreading/misinterpreting/ignoring her orders.
    SCO claims that we've disclosed UNIX SysV release 4 internals, Marriott continued. He held up a book ("The Magic Garden Explained, The Internals of Unix System V, Release 4") copyrighted 1994. He said Unix internals have been in public for over a decade.
    This is rather telling (and mess making - if I had been drinking a cuppa ^_^). SCO claimed some stuff was theirs as well - until the hackers degreeked it and showed it to be BSD. I'm more of the opinion, using the available evidence, that all of SCOs millions of lines of copying is just this - stuff that is freely available from another source; some of it not even theirs (possibly [deriving from] the "stolen" BSD code that found its way into Unix - USL v BSD?).

    [ Reply to This | # ]

    Interesting
    Authored by: PeteS on Friday, April 14 2006 @ 06:56 PM EDT
    First

    A very big thank you to Chris. I hope (no offense to you Chris!) that there were
    others. More eyes :)

    Second

    I think Judge Wells just gave SCOX enough rope to hang themselves, at least on
    this motion. She'll allow it, *but she will allow an IBM expert rebuttal*.
    Sounds to me like 'Hmmm... if I deny this (which I could), I get a lot of grief.
    IBM doesn't really object (Marriot says it doesn't really hurt them), so I'll
    allow it, but I'll let IBM destroy their expert'

    Third

    I think it is sad Marc is now in the middle of this. (Personal opinion). Perhaps
    he chose it - who knows.

    Fourth

    Judge Wells has given IBM a target. 'Here you go IBM. I will let it in, but you
    get to rebut it. Show me [especially with this new declaration] how they have
    wilfully ignored me and I'll actually do something about it'

    Just my take.

    PeteS


    ---
    Artificial Intelligence is no match for Natural Stupidity

    [ Reply to This | # ]

    SCO changes what their case is about... again.
    Authored by: Anonymous on Friday, April 14 2006 @ 07:00 PM EDT
    And so here we come down to it:
    Judge Wells says that they have not argued that until now. Mr. Singer said that methods and concepts don't require file, line. Judge Wells said she doesn't remember ever talking about methods and concepts, that we've always been talking about the code. Judge Wells said, "Look at the specific orders". Stuart said they've complied where appropriate, that there has not been a requirement for SCO to identify files and lines for methods and concepts.
    SCO has been pulling an enormous bait and switch with the court this entire time. Their entire case is based on the idea that if something "looks like" UNIX, it is UNIX; their entire theory of infringement is based on the idea that the UNIX copyright applies not just to the actual code, but to the very idea of UNIX itself, as if they had some kind of mutant super-patents. But SCO hasn't wanted to say that out loud. Instead they've been allowing the court, both IBM's arguments and the court's rulings, to proceed as if this was about actual code. You know, real infringement.

    Now, at the last minute, when it's demanded where their code is, they suddenly pull aside and reveal what they've really been arguing this entire time.

    We can only hope the court doesn't allow them to do this. Because if it does, then SCO will have pulled off the marvelous trick of sidestepping all of the courts orders up until this point; the switch means that they can claim-- as they did today-- that the restrictions the court has reasonably ordered on them only applied to their decoy case, not the secret, real argument SCO's had hidden up their sleeve, and thus SCO doesn't have to follow any of those restrictions anymore.

    The court notices, as the quote above indicates, that SCO is doing this. That isn't so much in question. What is in question is whether the court will allow them to get away with it. It is possible the court will, despite the late date, say "well, this is a sort of argument you've never brought to our attention before, and changes what the case is about, but okay, if that's what you want your case to be about, you can do that, the change is effective". If the court takes this route, SCO gets to start their case all over-- again-- at the very end of discovery. And since they get to start over in a much fuzzier realm, then they get to bring in insane arguments like:
    Stuart rebuts. He said that IBM uses an assumption that for every method and concept, there's source code. He claims that not supported in case law.
    The code is the program. If it's not in the code, it's not in the program. If it's not in the program, the program doesn't infringe. We can only hope the court understands the technology well enough to understand this.

    [ Reply to This | # ]

    Thanks, Chris
    Authored by: cybervegan on Friday, April 14 2006 @ 07:05 PM EDT
    You must have blisters on your fingers!

    Cracking job.

    regards,
    -cybervegan

    ---
    Software source code is a bit like underwear - you only want to show it off in
    public if it's clean and tidy. Refusal could be due to embarrassment or shame...

    [ Reply to This | # ]

    How are methods and concepts protected?
    Authored by: Anonymous on Friday, April 14 2006 @ 07:11 PM EDT
    Copyright? Patent? Trademark? Trade secret? Contract?

    [ Reply to This | # ]

    Quatermass Called It
    Authored by: Steve Martin on Friday, April 14 2006 @ 07:13 PM EDT

    [Marriott] said that methods and concepts exist in their implementation in code, not just in the air.

    I note with interest that Quatermass made exactly that same point earlier. This makes me wonder if IBM is taking ideas from Groklaw.

    Joke. It is an interesting coincidence, though.

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

    [ Reply to This | # ]

    So, if this is about Methods and Concepts...
    Authored by: Jude on Friday, April 14 2006 @ 07:19 PM EDT
    ... which, according to SCO's lawyer, do not have to be embodied in source code,
    then why did SCO demand all that source code from IBM?

    [ Reply to This | # ]

    Three points
    Authored by: PolR on Friday, April 14 2006 @ 07:25 PM EDT
    First point:
    Mr. Singer said that methods and concepts don't require file, line.
    I am baffled. Where the methods and concept could be if not in the code? Doesn't SCOG have to prove they have been placed into Linux somehow? How can they prove it is in Linux without showing the code? Or are they going to trial based on emails alone? Could the judge believe a proof of SCOG's claaim by showing emails without reference to code is sufficient?

    Second point:

    What law are they going to invoke with their method and concept claims? Copyright? Trade secrets? Contract? Other? Trade secrets is unlikely since SCOG already dropped that claim, but with them nothing would surprise me. Perhaps IBM needs another chart showing for each item SCOG has detailed which law has been violated.

    Third point:

    This case is about methods and concepts for the 198 items discussed today. We don't know yet what the case is about for the other items. I am sure SCOG has some more surprises in reserve. We will find out when IBM brings the summary judgement motions.

    IANAL

    [ Reply to This | # ]

    Is the cat out of the bag?
    Authored by: Anonymous on Friday, April 14 2006 @ 07:38 PM EDT
    It just sounds like SCO is just continuing to be equivocal as to what their case
    is about. The strategy seems to be don't give IBM a stationary target. When
    does a Judge say you have run out of time to make a specific accusation?

    One thing I worry about is that methods and concepts would be subject to
    privilege as they may be considered trade secrets. Which may leave us in pretty
    much in the dark.

    [ Reply to This | # ]

    First Report from the Hearing - Updated 3Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: Anonymous on Friday, April 14 2006 @ 07:42 PM EDT
    ...that methods and concepts are found in the code, not in thin air...

    Peice of cake. What could be in "air"? Only secrets. Since most of the stuff already open - they loose that defence.

    Even if you look at patents - something closest to defining methods and concepts - you will notice that patent basicly protects right to *implement* the idea/method/concept. E-mails (as quoted by SCO) are not the same as implemetation. It's only implementation that can infrige on "methods and concepts" or patent. People are (still) free to talk to each other about anything they like - even about protected idea/method/concept. (*)

    I think SCO tried to bluff and failed. As PJ pointed, IBM cornered SCO to tell what they are after: code or method/concepts. SCO might have had a slight chance with code. But recalling evil monopoly IBM of 70s/80s I'm sure on methods/concepts they'll wash court floor with SCO/friends. They did it as part of business - now as part of defence they suely wouldn't restrain themselves.

    (*) "Talk is cheap. Show me the code."
            -- Linus Torwalds

    [ Reply to This | # ]

    For every method and concept, there's source code
    Authored by: Khym Chanur on Friday, April 14 2006 @ 07:46 PM EDT
    Stuart rebuts. He said that IBM uses an assumption that for every method and concept, there's source code. He claims that not supported in case law.

    Perhaps he's talking about contract violation by IBM's developer telling Linux developers about methods and concepts, even if those methods and concepts never made it into Linux? Of course, methods and concepts which never made it into the Linux wouldn't have caused SCO any monetary damages...

    ---
    Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

    [ Reply to This | # ]

    Methods and Concepts must still be specified
    Authored by: Anonymous on Friday, April 14 2006 @ 07:53 PM EDT
    Methods and Concepts are implemented in code, however identifying them by file,
    line number, etc might not be the best way to describe them. However this
    doesn't let SCO off the hook. If version, file, line number is not the ideal way
    to identify them, they still must identify the method or concept with sufficient
    specificity that IBM can answer SCO's argument.

    They also need to explicitly identify which claims are method and concept claims
    because IBM will need to respond differently to those than to allegations of
    direct copying.

    IBMs main argument against all the methods and concept claims is surely going to
    be that copyright law as applied to software has developed to specifically
    exclude methods and concepts. This was established in case law even before
    software became patentable in the US, and the subsequent extension of patents to
    software can ironically only strengthen the basis for this exclusion.

    Sounds like a PSJ on all methods and concepts claims could be called for.

    [ Reply to This | # ]

    This is about 198 items
    Authored by: PolR on Friday, April 14 2006 @ 08:04 PM EDT
    How about the remaining ones? Those that were not discussed today?

    We seem to think this case is now all about M&C. Is this true? How about
    the remaining items where files and lines of code have been identified?

    Do we believe these other items are there just for show? That they are decoys to
    distract from the M&C argument? Or is it too early to draw a conclusion?

    [ Reply to This | # ]

    Ahhhhhhhh Not "Methods and Concepts"
    Authored by: SilverWave on Friday, April 14 2006 @ 08:16 PM EDT

    I mean no one expects "The Spanish Inquisition" "Methods and Concepts" ;)

    ---
    RMS: The 4 Freedoms
    0 run the program for any purpose
    1 study the source code and change it
    2 make copies and distribute them
    3 publish modified versions

    [ Reply to This | # ]

    Poor IBM has to play bop-the-mole
    Authored by: Anonymous on Friday, April 14 2006 @ 08:48 PM EDT
    This is about trade secrets - except when IBM tries to nail down trade secrets,
    and then it isn't. But it's about patents - except that there aren't any. But
    it's about copyrights - except that when IBM tries to nail that down, then it's
    about methods and concepts, which are either patents or trade secrets.

    Although I think IBM is making progress - there's not much room for trade
    secrets, and patents is dead. So if IBM can get rid of copyright (which takes
    direct copying), then all that's left is "copyright" of methods and
    concepts (which I'm sure that SCO will try, but I doubt it will fly with
    Kimball), or some new protection of methods and concepts that is not trade
    secrets, trademark, patents, or copyrights (which I also expect SCO to try, and
    I also expect similar lack of flight in the eyes of Kimball), or contracts.

    And when it all comes down, this is going to turn into a contract case. SCO is
    trying desperately to avoid that, because the contract is clear enough that
    Kimball can rule on it without a jury trial, but SCO is running out of other
    places to hide...

    MSS2

    [ Reply to This | # ]

    I've got an idea
    Authored by: Anonymous on Friday, April 14 2006 @ 08:51 PM EDT
    >
    Stuart rebuts. He said that IBM uses an assumption that for every method and
    concept, there's source code. He claims that not supported in case law.
    <

    I'm not going to say what it is but you've infringed it. Go away and find out
    what you have infringed then pay me for infringing my idea.

    Sheeesh, does this make my blood boil!!

    Tufty

    [ Reply to This | # ]

    Methods and Concepts
    Authored by: Anonymous on Friday, April 14 2006 @ 09:01 PM EDT
    Whether it is "methods and concepts" or code, we should all remember that SCO distributed Linux under the GPL, even after starting legal actions against IBM. I don't see how SCO could distribute code under the GPL without the methods and concepts. That would be saying, "We allow you to distribute this code and/or alter it and distribute it with source code, as long as the methods and concepts are different". This could only make sense on PlanetSCO [TM].

    It could happen that they distributed Linux under the GPL without knowing it contained their code. [Gee, that's too bad, they distributed it under the GPL and have no one but themselves to blame.] But I say it is impossible that they did not know it contained "their" "methods and concepts".

    [ Reply to This | # ]

    First Report from the Hearing - Updated 3Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: Yossarian on Friday, April 14 2006 @ 09:02 PM EDT
    >on that item was able to demonstrate that it was publicly
    >available and published by Intel, line for line, in 1989.

    (!) (The ! is not about Intel doing so but about SCO not
    realizing that semi-public knowledge till it was way too late.)

    This explains why Intel fought so hard against SCO's subpoena.
    It seems like Intel sent a clear message that it is not IBM.
    If SCO will try to use legal ways to harass Intel then Intel
    will find legal ways to make SCO sorry for doing so, FAST.

    [ Reply to This | # ]

    First Report from the Hearing - Updated 3Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: Yossarian on Friday, April 14 2006 @ 09:26 PM EDT
    >Stuart rebuts. He said that IBM uses an assumption that
    >for every method and concept, there's source code.
    >He claims that not supported in case law.

    It seems like IBM has a good technical point, namely, "the
    judge ordered X, you did Y." Assuming that SCO has a point
    (IANAL), why did not SCO raise that point after the judge
    had ordered X? I mean, arguing this point could mean a
    longer delay, a positive result from SCO's point of view.

    Now IBM that, as we all know, has lawyers with first-rate
    legal technique, may be able to use the judge's wordings,
    in four different orders, to destroy most of SCO's case.
    If the judge will say, correctly, "you should have raise
    this issue when I had given my first order," what legal
    answer will SCO have?

    [ Reply to This | # ]

    JURY TRIAL...When will IBM file the judge's ruling on the denied injuntion request made by USL?
    Authored by: Anonymous on Friday, April 14 2006 @ 09:28 PM EDT

    SCOx would love to get a naked "Methods and Concept" arguement as the focus of a JURY.

    A judge already said that UNIX stuff was out there and that USL could not put it back in a can.  So - now SCOx is trying to do just that!  It has been methods and concepts all along, as they know that they can not win on the code.   If they can get the judge to agree to argue Methods and Concepts then this makes this legal and they will then go to every court in the country and say look this judge says we can argue methods and concepts so we are going to sue all these companies for infringement based on this methods and concepts.   I have been saying this all along!

    The judge needs to know about USL vs BSDI and that USL did not own methods and concepts, period and that Methods and Concepts is not a copyright arguement at all.   If the judge gets confused about being out there alone on this, with no evidence of a previous ruling on UNIX's IP, it the trade secrets etc loss that USL suffered vs BSDI..., then if a JURY sees this "Methods and Concepts", then the whole case is a coin toss to see how smart a JURY really is.   Think OJ... if the glove don't fit, you gotta_______!   Methods and Concepts will be drilled and drilled and drilled into the jury and the rhythem and the music of it will enter their heads like a rap song... they will be singing it and dreaming it in their sleep, and all the code mumbo jumbo and the complexity will be overridden by the easy to sing and think about "Methods and Concepts".

    It will be just like the magic played by the street magicians with the card games or the shell game that you never will win.  This is not about logic or code or the fact that AT&T never kept their stuff private (that a judge has already said they did not)!  It is about the emotion of the JURY and the guess that they will be making about "methods and concepts"!

    Hey - If IBM loses then UNIX and everything LINUX will be basicly proprietary.  What infringer would want to go to trial against SCOx on a "Methods and Concepts" arguement before today's jury pool of our tech knowledgable peers!  Hey ya gotta wonder if IBM does not care, they profit by hardware, services, and databases... they don't care what the price of the OS is that is!    LINUX folks need to enter this case now!  Otherwise, their interests will be decided without their even being able to defend themselves properly....!   IBM is not LINUX.   For IBM Linux is just an option (they still got AIX that the ownership contracts are solid on)!

    It  has been my bet hat every bit of energy on this legal chess board... is being spent not to have any of the history of USL vs BSDI admitted for the judge to see in this case.

    The judge in USL vs BSDI ruled in an injunction in a way that was not very favorable to AT&T's USL attempts to recover lost and openly developed code (steal it back from the universities and others who were part of the BSD efforts).  SCOx today is trying to backdoor the USL case.
    SO this is why the judge should be made aware of the thought process of another judge, who already ruled on pretty much the same thing AGAINST USL (AT&T).  

    USL was saying in the early 1990s we own UNIX (including trade secrets and all, including one would think methods and concepts)!

    Is SCOx saying anything else today?

    What would a judge today, think about a ruling that smashed USL's "we own UNIX" actions of the early 1990's?

    Does the judge even know about USL vs BSDI, is so then prove to me that the judge in SCOx vs IBM is so informed, there has been nothing filed that even mentions this by IBM or SCOx.    So - it is about time that someone told the judge today that a judge has already been all over this before.

    Google:

    Documents about USL vs. BSDI
    USL vs. BSDI documents. In view of the interest in the newly-launched suit by
    SCO against IBM, I thought it might be of interest to make available some of ...

    USL v. BSDi - Wikipedia, the free encyclopedia
    BSDi's 1-800-ITS-UNIX telephone number violated USL's trademark on UNIX. ...
    However, in November of 2004, a copy of the USL v. BSDi settlement agreement ..

    [ Reply to This | # ]

    Which methods and concepts does SCO own anyhow?
    Authored by: Anonymous on Friday, April 14 2006 @ 09:41 PM EDT
    So describe with specifics which methods and concepts are infringing.

    and while you're at it, show us proof that you own the rights to such under
    patent, trade mark or some other proper method.

    And remember concepts and methods are not covered by copyright, its more a
    patent thing - which you dont own
    or a trade mark thing - which you dont own
    or a trade secret thing - which you dont own.

    and even if it is copyright (somehow) show us you own it, and have the rights to
    it, and control it.

    Did we forget to mention how you explain the whole UL mess?

    and what are the exact specifics that allow us to identify what is actually
    misused?

    [ Reply to This | # ]

    Inconsistency?
    Authored by: sk43 on Friday, April 14 2006 @ 09:58 PM EDT
    [Singer] said that IBM uses an assumption that for every method and concept, there's source code. He claims that not supported in case law.
    Even taking Mr. Singer at his word, most of the 198 items list Linux source code files, but not SysV or Dynix or AIX files. If a method and concept does not need to be tied to source code, then why are Linux files listed at all? For entertainment purposes? If Linux files can be identified, why can't files from SysV/AIX/Dynix be too?

    [ Reply to This | # ]

    Three additional comments from the hearing
    Authored by: joel on Friday, April 14 2006 @ 10:06 PM EDT
    Just a couple of additional comments from the hearing.
    Chris has done an admirable job, especially under the
    circumstances. First, Mr. Singer tried tenaciously to
    divert attention from the motion before the court by
    reintroducing SCO's old arguments regarding "methods and
    concepts". Interestingly, he tried to make everyone
    believe that since "methods and concepts" do not require
    specific versions, lines, and code, they were fully in
    compliance with the courts and IBM's orders and requests.

    If you like dancing around the issues and smoke &
    mirrors, Mr. Singer was really good. Also, He spoke very
    rapidly. How Chris got as much as he did was truly
    miraculous. When I grew weary of the same old same old, I
    wrote in my notebook "Methinks Mr. Singer doth protest too
    much". Shortly afterward, Her Honor apparently had
    similar inclinations, as she cut him off with something to
    the effect of "I don't want to hear that. We're not going
    there", to my great relief.

    Mr. Marriot, as usual, was quite adept at trying to
    keep the arguments on target. For me, his crowning
    achievement occurred during his final summary when he said
    "SCO is willingly sitting on its allegations and
    contentions", after which he drew out IBM'S first
    Interrogotory (sp?) and pointed out that IBM had requested
    that SCO define explicitly what their allegations and
    contentions were. He noted further that SCO still has not
    complied with proper specificity, which seriously hampers
    IBM"s efforts to defend theselves, therefore the motion
    should stand.

    Lastly, the Linux contingent was quite sparse today.
    I counted four of us initially. I know many of you would
    have loved to be there. I regret that I unable to more
    adequately express the expressions an elucidations of
    those involved. It was fairly intense, and lasted 2
    hours.

    cheers, joel

    [ Reply to This | # ]

    Methods and Concepts: The real MS target? [Tinfoil time?]
    Authored by: jdg on Friday, April 14 2006 @ 10:08 PM EDT
    [IANAL] and this is tinfoil time]
    There has been speculation that MS is, directly or indirectly, behind this whole
    exercise. The lynch-pin of argument is clearly Methods and Concepts. Is MS
    after killing this concept so that they have greater freedom to pull material
    from other parties. They have been losing often in legal disputes and it costs
    them a bundle. Are they trying to shoot down a strawman here? Thus is MS wins
    by either: a) SCO wins or has great success casting uncertainy about Linux
    legality; or b) the M&C card goes down in flames.

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

    [ Reply to This | # ]

    First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: blacklight on Friday, April 14 2006 @ 10:14 PM EDT
    SCOG claims that its disclosures meet the requirements of specificity, despite
    the fact that they make ZERO effort to link source code to actual infringement.

    This raises the question: what were these clowns looking at, that motivated them
    to sue IBM for infringement? Source code, of course, with Darl the Snarl's three
    teams of deep divers. And how did these clowns decide that IBM was infringing,
    if they weren't looking at the source code LINE BY LINE?

    What I am getting is that SCOG is deliberately refusing to comply with judge
    Wells' orders, which require that the infringements be linked to actual lines of
    source code. Period. If judge Wells contravenes her own orders, then IBM should
    immediately appeal: in American jurisprudence, the accused has the right to know
    with specificity what the charges and allegations against him are. And I will
    say bluntly that judge Wells has complaisantly violated this Constitutional
    principle since 2003.


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

    [ Reply to This | # ]

    First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: Anonymous on Friday, April 14 2006 @ 10:27 PM EDT
    This hearing was simply SCO changing horses in mid-stream (again).The SCO
    lawyers certainly get an "A" for creativity. I'm actually impressed
    with the new "methods and concepts" path -- how they stood in front of
    the judge without giggling shows great self-control. Guess that's why they get
    the big bucks.

    [ Reply to This | # ]

    Control
    Authored by: Anonymous on Friday, April 14 2006 @ 10:38 PM EDT
    Does SCO has control over AIX and or Dynix/PTX ?. I see a lot of accusation
    based on those products but none from SysV in this hearing.

    [ Reply to This | # ]

    DISCOVERY is what TSCOG does to get in front of a jury
    Authored by: Anonymous on Friday, April 14 2006 @ 11:55 PM EDT
    without any evidence. Follow the pea as it shuffles endlessly.
    Grow entranced and dazed by the maze of meaningless
    arguments. This is all misdirection!

    IBM knows that TSCOG has no evidence. The judges know that
    TSCOG has no evidence. So, do they ignore the elephant in the
    courtroom or whittle this abomination of a case down to the size
    of a pea?

    TSCOG cannot trace the code from something that TSCOG owns
    into Linux. Simple. Their dance today reveals this truth.

    UNIX is a family of OSs. UNIX distributions are SW encyclopedias.
    TSCOG's analogies apply to isolated songs or stories, so nothing
    TSCOG has said about nonliteral copying of concepts or methods
    could ever apply in this case. Straight to the heart of this case,
    an OS has just what the OS needs without copying being
    implied. For the SW challenged like TSCOG, every encyclopedia
    needs an article on crimes like pump and dump, libel, fraud,
    extortion, and RICO. It plainly does not imply nonliteral copying
    of encyclopedias or OSs.

    [ Reply to This | # ]

    Is that all there is? Methods and concepts are already gone.
    Authored by: AllParadox on Saturday, April 15 2006 @ 12:42 AM EDT
    And after it was all over, I said to myself:
    "Is that all there is?"
    "Is that all there is to this horrid little lawsuit?"

    The Peggy Lee song goes:

    Is that all there is?
    Is that all there is?
    If that's all there is, my friends, then let's keep dancing.
    Let's break out the booze and have a ball,
    If that's all there is.


    Dear Reader, please do not forget that Caldera, on January 23, 2002, granted
    something to you, me, and IBM.

    I am referring to the infamous "Ancient Unix" grant from Caldera.

    You, I, IBM, and everyone else, received the unlimited right to use all the
    "Methods and Concepts" contained in the "ancient UNIX"
    operating systems.

    "Unlimited" is a fairly broad term in my dictionary.

    The attorneys for "The SCO Group" keep bringing up Harry Potter. The
    case is not apropos (apropos: a $27.29 lawyer word that means
    "relevant".) J.K. Rowling never gave any Harry Potter plots to the
    public, much less all of them prior to a specific date.

    This also completely ignores the broad literal terms of the IBM-AT&T
    contract where IBM received its' initial rights, and the Project Monterey terms
    that specifically drafted for this situation.

    If these folks are claiming "methods and concepts", then IBM has a
    right to know *which* methods and concepts, so that they have a fair chance to
    rebut those that are rebuttable.

    "The SCO Group" does not have copyrights on all the methods and
    concepts in UnixSysV. They have, at most, only the copyrights on the extensions
    from ancient Unix, and then only if the extensions really are new methods or
    concepts.

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

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

    [ Reply to This | # ]

    What method? What concept?
    Authored by: dbc on Saturday, April 15 2006 @ 02:03 AM EDT

    SCO didn't say "This method and concept comes from Unix Sys V, R4, file xyz, lines 67-278 and can be shown to be implemented in Linux version 2.4.16, file xyz_1.c, lines 120-400 and this admission/submission/email/whatever shows IBM caused it to be put there." That's what's missing from SCO's final disclosure.

    Seems to me this is where it falls appart for SCO. Let's sit in the judge's chair for a moment. And let's be a hard working, competent, and analytical judge.

    Now, the rules of procedure require us to allow plaintiff to make their case at this point. But within that framework, we do everyone (including ourselves) a big favor by using this opportunity to simplify. So, we go over each item one by one and ask:

    • Are specific lines of code in a specific file and version mentioned, like I ordered?
    • Failing that, let's, for the sake of argument, ask: Is a specific method or concept called out?
    • If a method or concept is called out, does SCO tell us where it originated, down to at least a file and version? Did SCO tell us where it went, down to at least a file and version?

    Given previous rulings, those are pretty generous tests. Frankly, too generous all things considered. Yet, I don't see how more than a handful of claims could survive those tests.

    The judge has a golden opportunity to simplify the case. Smart judges are all over those, just from a purely pragmatic standpoint.

    [ Reply to This | # ]

    Why the Judge must Strike: The Necessity of Specificity OR We Can't Have a Three-Year Trial
    Authored by: webster on Saturday, April 15 2006 @ 02:15 AM EDT

    1. (This is a second reaction as of the 4th update.) Ah, a hearing day. Who
    could concentrate with the rumbling of refresh buttons? PJ's article had the
    first news rather than a comment. That is fitting. No shooting SCO from the
    hip. The Judge is taking the motion "under advisement." Slow by
    internet time, but due course by Court time. Nature abhors a vacuum and Court
    abhors excitement and sensationalism. Why announce a decision when you can
    write it later after some thought? Patience, my friends. I think these Judges
    know what they are doing and they are in control. Since neither party is
    pressing them for anything drastic, they are letting the case take its due
    course. There are many more motions to come, some more important than this one.
    There are a number of principles to be learned from this week.

    2. The first principle is "what goes around comes around." Or
    "as ye sow so shell ye reap." SCO seems to have gotten away with a
    few things this week: filing late, serving poorly, throwing in a late expert,
    seizing the last word or filing on an opponent's Motion, stonewalling on
    specificity... It appears that the Judge has bent over backward to accomodate
    them. IBM has appeared to acquiesce at times. Marriott must have suppressed
    his lawyer reflex when he stated that the late SCO Expert Declaration would not
    hurt IBM. Of course, he more than any one could have argued that it would. IBM
    has earned a lot of Brownie points. Just think how far backward and how many
    times, the Judge is going to have to accomodate IBM when the time comes. They
    are going to be allowed to pull a few obvious fast ones before the Judge has to
    worry about being fair to both sides again.

    3. The second two principles are: 2) You need to follow the rules. 3) You
    can't try a case without specificity. Consider: this week; and the next ten
    days; and then whatever happens in this Motion (replies, surreplies,
    oppositions); and the wait until a decision is rendered; (reargument?), as an
    example of what happens when you violate these principles. Look what has
    happened without specificity and finality? Delay and a waste of time. Imagine
    going into a trial without complete discovery and specificity. Whenever SCO
    tries to introduce anything new, IBM can demand a recess, deposition of the
    proposed new witness, investigation of the evidence, and time to consult their
    own experts. Imagine a ten day recess every time SCO tries to introduce
    something previously undisclosed. You can't have a trial that way and the
    Judges know it. There will be a specified list of allegations as discovery
    requires. SCO will not be permitted to introduce or argue anything else. If
    this were not so, the trial would take three years.

    4. Why is SCO so specifically vague? All that the SCO lawyers think they can
    ethically argue is the "One-Sentence Derivative Contract Theory" which
    they know is pitifully weak [and which I doubt specifies Methods and Concepts.]
    They would simply love to begin recorded history with SysV Code and trace its
    Concepts and Methods through history, compare it to a claim on good grammar. It
    evolves a little bit, but they want to claim perpetual credit. It appears that
    whenever they try and specify any of it, it gets shot down. There selections
    when researched prove not to be original with them or even their immediate
    predecessor. These Unix Methods and Concepts have been widely dispersed, like
    genericly engineered corn being blown into the fields of naturally engineered
    corn. So it has become this wild, bastard code-type upon which many have drawn
    and shared, promiscuously. Even the SCO expert has been spreading them for
    years. We'll spare him for now, see below. SCO fears specifying these Methods
    and Concepts because they will be found to be pervasive and free. Indeed if
    they were to specify the versions, for some specific Method and Concept, they
    well might specify all versions of Unix, AIX, Dynix, Windows and Linux. Better
    to try and get over without specificity than to be knocked out for too much
    specificity.

    **** "I think SCO knows it too, that is why they are fighting so hard
    here. They know that IBM can refute all of their claims that contain
    specifics." **** Comment above by ibb

    5. More of My Method and Concept of SCOranting. Why is it not possible to
    locate methods and concepts with specficity? It is. Compare a Method and
    Concept to claiming rights to a plot, such as that recent DaVinci Code Decision
    denying a claim based on plot. SCO realizes that their Theory is a little loose.
    So loose that they are loathe to specify. By using SCO's own loose theory, IBM
    can specify an antecedent Concept and Method whence theirs derives. They could
    even use Medieval algorithms as guiding precedents, or Rothkinds books.

    6. Let's not be rough on Mr. Rothkind. If IBM had approached him first, I'm
    sure he would have done the same for them. He answered true to his principles,
    if not methods and concepts. I'm sure IBM will still use him because much of
    what he knows does not support SCO. IBM will question him with his own books.
    And who couldn't use a little Spring Break money.

    7. One way or another Kimball will have final say on the specificity issue. He
    does not run a loose courtroom. Between IBM and SCO's charts, there will be
    list of accusations with sufficient, defensible specificity, before this trial
    begins. We are approaching Kimballs time limit and his line in the sand. SCO
    is not going to have much specified when the Dispositive Motions flow. Then
    what Methods and Concepts will they use to bore Kimball out of his astonishment.
    After this case, he can retire and do arbitrations for amusement.



    ---
    webster

    [ Reply to This | # ]

    4-word summary
    Authored by: Anonymous on Saturday, April 15 2006 @ 02:20 AM EDT
    SCO won this one.

    [ Reply to This | # ]

    First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: Anonymous on Saturday, April 15 2006 @ 02:36 AM EDT

    "McBride: ... There are things out there that help people understand how to program to System V application binary interfaces [ABIs], to help them hook up to the OS. It was out there to help people write applications. It wasn't published to help someone knock off the OS and create a free version of System V."

    I have a slightly-dog-eared copy of "The Magic Garden Explained" (1994) in front of me. Unless there's something buried in the depths of the text, I can see nothing in the book that says what the contents are allowed to be used for and what they cannot be used for. McBride's declaration that it couldn't be used to create a free System V is wishful thinking on his part.

    From the front matter of the book:

    "This book contains copyrighted material of Novell, Inc., which is being reproduced with permission. The authors thank Novell, Inc. for giving them permission to use this material.

    The authors wish to state that this book is presented entirely with the intention of disseminating knowledge to professionals and academics who have an interest in the subject. It represents neither the views not the commercial interests of the organization in which they are employed."
    (underlining mine)

    Now I'm not a lawyer, but a simple reading of that, to me anyway, seems to indicate that the copyright holder (Novell) had no problem whatsoever with all those oh-so-valuable System V details getting out into the world. Funny how SCO seems to think they can put the genie back into the bottle.

    --
    RT

    [ Reply to This | # ]

    Martin Bligh email
    Authored by: error27 on Saturday, April 15 2006 @ 03:33 AM EDT
    This must be the email that Martin Bligh wrote.

    It says that there was a user who hated a feature in Dynix and Martin was responding that Linux was going to be completely different. That's clearly a copyright violation if you ask me.

    [ Reply to This | # ]

    methods and concepts, EU redux
    Authored by: jig on Saturday, April 15 2006 @ 03:37 AM EDT
    agg. this won't be read by many...

    anyway

    this seems to have a parallel in the EU case against microsoft, though maybe not
    in our favor. MS offered their network code as sufficient response to the EU
    demand, but the EU told them it wasn't enough because the code by itself didn't
    easily convey the methods and concepts needed to use the standards within (and
    that it didn't offer the standards in an open manner, but that's a side issue).

    sco seems to be tackling this from the other side, saying that they'll give the
    general idea, but that it's immpossible to convey with just lines of code.

    now, this is an incomplete argument on their part because they haven't listed
    (at least in an unsealed doc) what the methods and concepts are in specificity.
    but, i think the table they have from their expert does have such... so it might
    only be incomplete to us.

    i'm also ignoring the procedural misstep by trying to pull a switch and bait (i
    wrote that backwards on purpose) on the court by hammering the "lines and
    files" idea for so long and then all of a sudden arguing esoteric methods
    and concepts. they might have just strung the court along long enough to educate
    it on what the os and source code and etc mean enough so that they can pose this
    argument without being laughed out of court for insubstantive standing, which is
    what could have happened at the beginning if this is what they brought to the
    table.

    but, that's probably giving them too much credit. they are squirming, falling to
    plan b, c and d, and trying to prolong the whole party, maybe even get to trial
    with some esoteric concepts that a judge might be able to sort through, but that
    will probably give them a better than 50-50 chance with a home team jury of
    "peers" who can be swayed with bluster and irrationality more easily
    than with cold facts.

    ALSO,

    while the harry potter suit is interesting, a more appropriate decission for IBM
    to consider is the recent one involving the Di Vinci Code. Just because two
    works discuss the same topics in similar ways doesn't mean there was
    infringement involved, ESPECIALLY in works based off of academic work and
    publications.


    [ Reply to This | # ]

    Look&Feel?
    Authored by: geoff lane on Saturday, April 15 2006 @ 04:52 AM EDT
    Is this really going to end up as just a "Look&Feel" argument?

    I thought that the courts had already decided that just because two programs have a simpler external behaviour there was no infringement.

    "Methods" must surely depend on trade secrets and we already know that there are none of those left for Unix. "Concepts" are just ideas with a fancy name and we know that there is no copyright on ideas. It's possible that patents would be applicable, but TSG doesn't have any relevant to the case.

    So, has TSG just given up on code after arguing for years they had specific examples?

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

    [ Reply to This | # ]

    Question about capped fees...
    Authored by: Anonymous on Saturday, April 15 2006 @ 05:17 AM EDT
    Sorry, I haven't been visiting Growlaw for a while and forgot my login/password.
    And this may be a stupid question.

    One thought just came to mind. AFAIK, BSF still has its fees capped, right? Or
    at the very least, quite limited. So in a sense, the longer this lawsuit drags
    on, the less BSF earns in relation to the amount of work put in.

    By now BSF knows it can't hope to win, so how long until one of their lawyers
    makes a "mistake" that effectively ends this lawsuit?

    Yeah, I know...it's just a dream.

    [ Reply to This | # ]

    SCOG claims all software everywhere.
    Authored by: rsteinmetz70112 on Saturday, April 15 2006 @ 05:40 AM EDT
    It occurred to me that SCOG has now built a pile of theories under which they
    claim virtually all software is under their control.

    First there was the actual Unix code.

    Second there was the code developed by the licensees derived from the Unix
    code.

    Third there were the methods and concepts embodied in One and Two above.

    Now fourth is all of the code which employs Negative Know How.

    This last claim will soon be expanded to include any code which does not use any
    Unix code or Unix methods and concepts because that could only happen due to
    Negative Know How. Clearly if someone didn't use the methods and concepts
    embodied in Unix, it was because they improperly knew all about them and
    obfuscated their code to avoid paying SCOG their licensing fee.

    ---
    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

    [ Reply to This | # ]

    Delayed forever.
    Authored by: Anonymous on Saturday, April 15 2006 @ 07:21 AM EDT
    > Judge Wells asked Stuart Singer: "How do you address that
    > you maintain custody of the allegations and not provide
    > them to IBM?" Stuart denied that and said that if there is
    > something new that SCO brings up, IBM can object at that
    > time.

    Oh yes: Now they can bitch endlessly over each and every of the 198 items.

    [ Reply to This | # ]

    Boies' Strategy?
    Authored by: Jude on Saturday, April 15 2006 @ 08:33 AM EDT
    I have a hunch what Boies is up to: I think he wants to bury the jury in
    mind-numbing testimony.

    SCO has been unable to find code that embodies these 198 items, despite having
    all the of source code and all the experts they cared to consult. If these
    items go to trial, I think each one will require a lot of testimony about
    abstract concepts that a jury would have difficulty following. The jury would
    have even more trouble keeping track of them all.

    Even if each one gets only an hour of testimony, these 198 items could take over
    a month of trial time. The testimony could take a large fraction of a year if
    each item is examined in detail. The jury will be worn out long before this can
    be finished. I think Boies is counting on them giving up and deciding that
    there must be SOME guilt if there are so many accusations.

    Another way of looking at it is the old "If you throw enough at the
    wall..." line. If the jury is 99% likely to find IBM innocent of each of
    these items individually, they're only 13.6% likley to find IBM innocent of all
    198 of them.

    [ Reply to This | # ]

    Lest we forget
    Authored by: PeteS on Saturday, April 15 2006 @ 08:34 AM EDT
    Looking at the Quote database for Darl McBride we see these gems:

    According to McBride, "obviously Linux owes its heritage to UNIX, but not its code. We would not, nor will not, make such a claim." [August 2002]

    "IBM has been happily giving part of the AIX code away to the Linux community, but the problem is that they don't own the AIX code," [March, 2003]

    "But when they take our proprietary code and, without our permission, put that into the open-source community, that is where we do have a major-league problem," McBride said. [March 2003]

    "We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code," McBride said in an interview. In addition, he said, "We're finding code that looks likes it's been obfuscated to make it look like it wasn't UnixWare code--but it was." [May 2003]

    And IBM took the same team that had been working on a Unix code project with us and moved them over to work on Linux code. If you look at the code we believe has been copied in, it's not just a line or two, it's an entire section -- and in some cases, an entire program. [May 2003]

    "IBM has chosen to continue the actions that violate our source code and distribution agreements,"[June 2003]

    We're talking about line-by-line code copying. That includes not just the function but the exact, word-for-word lines of code. And the developer comments are exactly, 100 percent the same. [June 2003]

    In discovery you get to go in and investigate the things that relate to the case, and there are a broad range of things that relate to Linux and AIX. We will be going in with a fine-toothed comb and coming up with every detail. [June 2003]

    "When you look inside in the code base and you see line-by-line copy of [SCO's Unix] System V code, not just the code itself but comments to the code, titles that were in the comments and humour elements that were in the comments, you see that everything is taken straight across," he explained.

    McBride claimed that everything was exactly the same, except that the copyright notices had been stripped out. "There could not be a more straightforward case on the Linux side," he said. [June 2003]

    And so it goes on, but let's look at some others

    Gregory Blepp

    "'I have proof right here in my suitcase," Blepp said in the Spiegel story, translated by a Groklaw reader. "Out of the five million lines of the Linux source code, there are about 1 (million) to 1.5 million lines affected," Blepp said [April 2004]

    Then we have Chris Sontag, of course:

    Sontag said SCO has found numerous other violations since filing the IBM suit. "We keep finding more stuff every day," he said. "There's (allegedly infringing) code in all the Linux distributions."[June 2003]

    "This shows 80 lines out of 100 that are completely identical to System V code. This should not be in Linux," said Chris Sontag [August 2003]

    ``Their assertions are incorrect. The source code is absolutely owned by SCO,'' said Chris Sontag, general manager of the company's software licensing arm. ``In fact, SCO knows exactly which version of System V the code came from.'' [August 2003]

    I included Darl's early quotes to give us a flavour of his journey, but I am still amused by all those statements by Officers of SCOX that implicate soure code, yet now they say it's not there.

    PeteS

    ---
    Artificial Intelligence is no match for Natural Stupidity

    [ Reply to This | # ]

    Astonishing change of position
    Authored by: sk43 on Saturday, April 15 2006 @ 08:45 AM EDT
    Did Singer really say this?
    "... but that with technologies the code is not required."
    That is not what SCO told the court 2 years ago. Here is what Heise said in the Feb 6, 2004 hearing, regarding the providing of specific lines of code with respect to "technologies":
    "We have identified the technology, we just cannot identify the lines because we don't have their derivative modification source code."
    So, Mr. Singer, could you explain once again why you made Judge Wells order IBM to produce all those versions of AIX and Dynix?

    [ Reply to This | # ]

    • Even better - Authored by: Jude on Saturday, April 15 2006 @ 08:50 AM EDT
    • Brilliant! - Authored by: jbb on Saturday, April 15 2006 @ 04:11 PM EDT
    "Ice Ice Baby"
    Authored by: Anonymous on Saturday, April 15 2006 @ 09:53 AM EDT
    From Darl...

    The analogy I like to use is Vanilla Ice's "Ice Ice Baby" versus David Bowie and Queen's "Under Pressure." If you just look at the words, I don't see a copyright violation, but if you listen to the riffs, you can hear where they're the same.

    In the Vanilla Ice case, the words were different, but the music - the notes, the arrangement, the production - was identical. One could, in fact, hold it up in court and say, "These are identical."

    In SCO's case, no one ever challenged SCO to prove that the entirety of Linux was identical, but they have to prove that something is identical. In particular, that IBM copied something. So far, every time SCO has trotted out an example, its been instantly discreditied - BSD network code... Intel code... X Windows code... but nothing from SysV, and more specificly, nothing from IBM.

    [ Reply to This | # ]

    • "Ice Ice Baby" - Authored by: Anonymous on Saturday, April 15 2006 @ 12:27 PM EDT
    • "Ice Ice Baby" - Authored by: Anonymous on Sunday, April 16 2006 @ 12:30 AM EDT
    Why no contempt of court against SCO?
    Authored by: Anonymous on Saturday, April 15 2006 @ 10:28 AM EDT
    I seem to recall SCO saying recently in court and filed documents (and in the
    press many times) that they have "boxes and boxes" of
    "proof" of "literal copying" of "code".

    I can't find the links, but I seem to recall this was filed in their court
    papers as well in recent motions - even as recent as the last documents they
    filed.

    So why isn't anyone calling them on this? Especially the judge?

    Isn't it contempt of court or perjury?
    Either they were lying about having proof of literal copying, or they're lying
    now about "methods and concepts"

    and what about calling them on the whole M&C stuff anyhow? I mean it's not
    like M&C is protected by copyright - they are back at this angle again,
    trying to get copyright to cover something it doesn't.

    Even in the filings for this hearing and the quotes we see SCO trying to say
    that M&C are covered by copyright and it is supported by case law. uhm...
    what?? since when?

    anyone out there got a clue? and also why no one is throwing the book at them?

    [ Reply to This | # ]

    The Rochkind Declaration
    Authored by: Anonymous on Saturday, April 15 2006 @ 10:41 AM EDT
    It looks so similar in physical appearance that David Marriott at one point mistakenly held it up as if it was his own table, then corrected himself saying "refer to *our* table that looks *just like* their table."
    When reading Chris' report I immediately thought that this is absolutely not a mistake. Mr Marriott on purpose did this mix-up. In fact, he could send two messages to different recipients at the same time:
    1. to the judge "we are talking about the same things albeit SCO chooses to name them differently"
    2. to the masses "you can deduce the content of the Rochkind declaration from the mostly unredacted material, just read ours".

    Whow, this Mr Marriott is surely a really clever guy. He must be laughing all the way home that he basically made fun of the O'Hara/G2/etc stunt where she/they and SCO tried to make redacted material available to the public in order to distribute it.

    [ Reply to This | # ]

    Big Dogs & a note to PJ
    Authored by: Anonymous on Saturday, April 15 2006 @ 12:07 PM EDT
    Note:
    I was going to post the following but after searching for
    the correct spelling of the last name of Santa Cruse
    Operations I know not where but I believe that it does
    place some of the actions in contectx so I am posting it
    here.

    I have a hard time believing that Sun Microsystems bought
    Talnet (sp=?) (the remains of Santa Cruze Operations) for
    their code.

    As I see it Novel is attacking on the bases that nothing in
    the way of ownership was transfered to Santa Cruze
    Operations in US federal court and SuSE is attacking that
    what they SCO owned before the purchase of the two
    divisions of Santa Cruze Operations is open sourced by
    contract. That leaves Sun which is not directly in the war
    yet to attack on the bases that Santa Cruze Operations did
    not sell what The SCO Group says was sold.

    From another point of view there is another big dog in the
    fight that is very seldom spoke of here on Groklaw that has
    a very personal vengeance issue [or at least if it were me
    I would be most vindictive] which is not being heard from
    at all. Now if I had that type of money and that knowledge
    of finance and I did not care in the least about loosing a
    few million I am sure that I could arrange some sort of
    financial ambush which I am certain is coming


    Note to PJ:
    I just took a look for the name last name before Sun
    Microsystems bought them of the Santa Cruze Operations for
    correct spelling. What I found was a list of character
    players but NO list of companies that are players in this
    saga

    There was AT&T which spin off Unix Systems Laboratories
    which was acquired by Novel which sold something to Santa
    Cruze Operations who the split two one portion somehow how
    becoming part of some company with the name Caldera which
    may or may not be the same Caldera [there were a number of
    Caldera companies] that changed its name to The SCO Group.
    Meanwhile the remaining division of Santa Cruze Operations
    renamed itself to Ta????? (sp=?) which was then purchased
    by Sun Microsystems. Now recall Caldera was a part of
    United Linux along with SuSE, Mandrake and ???Linux. Novel
    has just applied for arbitration via SuSE over the United
    Linux contract which most Likely has just drug Mandrive
    [successor to Mandrake] and ???Linux into the picture since
    most likely the arbitration agreement is not based on
    English/US law but on continental law.

    And! This is for the SCO / IBM and SCO/Novell which is only
    a partial list of companies. Then there are the other
    fights in SCO vs The World. Some where along the line I
    seem to recall that SCO was planning to sue a major bank,
    gosh knows which one, but switched to DilimerChrisler.

    If that is not enough then there are the numerous financial
    players and PIPE ferries around and their relations ships
    which I never have followed closely. By now I am confused
    so I flip off to ?The Players? only to find a list of
    people in law firms and no list of companies of financial
    firms which of course have lawyers too.

    PJ we need a better score card to keep track of all the
    companies and participants in this dog fight. I am lost and
    I have read Groklaw since about your third month as a blog.

    [ Reply to This | # ]

    I fear that the Judges don't get it
    Authored by: El_Heffe on Saturday, April 15 2006 @ 12:46 PM EDT
    My biggest fear about this case from the very beginning has been that the judges
    lack the technical expertise to see through SCO's smoke and mirrors.

    I'm encouraged by the fact that Judge Wells seems skeptical of SCO's sudden
    change of course to "methods and concepts" and hopefully she's smart
    enough to figure out that if IBM has indeed mis-appropriated some of SCO's
    "methods and concepts" then SCO can easily point to specific lines of
    IBM code that uses those methods and concepts.

    However, I continued to be dismayed by the fact that IBM has repeatedly pointed
    out to the judges that SCO still (after 3 years!) has not presented any specific
    evidence and yet it doesn't seem to matter -- SCO just says "yes we
    have" and the judges seem to accpet that.



    ---
    My dog! It's full of rats! - 2001 a Dyslexic Odyssey.

    [ Reply to This | # ]

    Categories of alleged violations
    Authored by: mossc on Saturday, April 15 2006 @ 01:36 PM EDT
    IANAL.... Looking over the reports from the court it seems like TSG has added a couple new categories of alleged violations by IBM/Linux. Here are the types of violations that have come up in this case. (at least what I can come up with at the moment) Some of this is just speculation trying to divine what TSG is really claiming.

      Non-contract rights:

    1. copyright infringement - this is what the case was initially about (at least according to press releases and press coverage) - Probably most of the stuff shown to the press under NDA were similar files between UNIX and Linux. They probably did not realize how bad this claim was until the conference with the obfuscated BSD files. I am guessing all that remains of this category is header/ABI files. Hopefully this should be removed in PSJ phase. Header files are non-protectable, also the files in Linux were created independently. TSG acknowledges this if they use any header files from Linux in their products.
    2. obfuscated code - this has not come up recently in court so I would bet this has been dropped.
    3. non-literal copying - not sure if this is in remaining claims or supported by case law.
    4. TSG copyright definition (ladder theory) - If code was revised many times to the point where it does not contain any of the original code, according to TSG, this could still be a copyright violation if they can verify each successive modification led to the final version. I think this is a stretch and not supported by case law. This was the justification for much of the discovery(hard to tell if they were asking for source code control data for this category or category 8 below) The work required to research and document this type of alleged violation would be substantial, I also doubt there are any files developed like this starting with system V files and moving to Linux.
    5. copyright after irrevocable license revoked - According to TSG they had the authority to revoke IBMs AIX license. The justification was for claims that may no longer be in the case. The license is fully paid and irrevocable. I would be interested to see
    6. patents - TSG don't own any applicable patents in UNIX. Not part of the case although Darl stated that microsoft "took a patent license on our technology"
    7. trademarks owned by "The Open Group(tm)"
    8. trade secrets (is this protected by anything other than contracts once disclosed?) "There is no trade secret in Unix system files. That is on the record. No problem with that. " Kevin McBride

    9. Contract rights(confidential):

    10. derivative works (as in copyright law)
    11. TSG defined derivative works(as TSG defined does not need to include original code) (copyright code from AIX cannot be used in other products) Problem with this theoretical violation is that it does not agree with standard copyright law definition of derivative works and the contract does not redefine the term.
    12. methods and concepts from original works(should have source lines in Sys V) presumably must be kept confidential by licensee unless disclosed by another party. All methods and concepts from System V could be considered disclosed.
    13. methods and concepts from TSG defined derivative works( should have source lines in AIX/Dynix even if patented by IBM) - I think this makes no sense in the case of patented works since the very act of patenting a method would disclose it.
    14. methods and concepts without source code(no idea how this can be defined) How can this be claimed to be in AIX or Sys V if it was not implemented in source code?
    15. methods and concepts not used in linux because of knowledge gained by doing it the wrong way in dynix - this is my favorite, we are suing you because you did not make the same mistakes someone else did who once saw some code that had been written by a third party that may have been included in their derivative work.

    Random Thoughts:

    I am betting that most of the items in the final disclosure fall into the later categories. They would still need to define most of the details including SYS V or AIX code and sections of contract they feel give them rights to control the material.

    Violations of a contract by IBM could not incur a liability for a third party.

    Distinctions must be made over what TSG claims they own and what IBM/others own but they TSG claims to control some rights over.

    A question of logic. Why would the contract be intended to prevent disclosure of IBM works that were not part of original product? If FOSS was not a big issue at the time how would that harm AT&T more than using code in proprietary product?

    I think the reason this case seems so off the wall is that the decision to start a lawsuit was made first. Then Caldera/BSF/Canopy/Yarro looked around for a reason to sue and someone to sue. Looking at Darl McBride's history I see no indication that he would be competent to run a tech company with a product. He does however have some experience with litigation.

    Not having a good grasp of the linux development environment and the history of UNIX they found some indication they were sure they would be able to find enough to make a lot of noise and get some money. Even if they only managed to milk some license donations and boost the stock price Caldera assest could be monetized similar to the way Yarro made money on every transaction while at Canopy.

    Thoughout this case and the FUD campaign Darl & Co. have disregarded the fact that because Linux/Open source has source code available for all to see that makes it less likely for anyone to contribute inappropriate code because it is immediately obvious.

    I find when companies mention their "Intellectual Property" rights they are trying to be vague.

    "We've always been very open with the source code to any institution that wanted it, whether it's a university, government or a corporation." Darl McBride

    [ Reply to This | # ]

    Jury Decision
    Authored by: argee on Saturday, April 15 2006 @ 02:25 PM EDT
    Madam Foreman, has the Jury reached a decision?

    Yes your Honor.

    What is it?

    We the jury find that IBM has copied code, methods and
    concepts from Unix to Linux. But we cannot say exactly
    what, and therefore we cannot say how much damages to award.


    ---
    --
    argee

    [ Reply to This | # ]

    Where are the methods and concepts?
    Authored by: GLJason on Saturday, April 15 2006 @ 02:43 PM EDT
    Unless SCO could show where the method and concept was in Unix SVRx, they are out of luck. When they do show that, IBM will have an easy time at summary judgement. For instance, the book they mentioned that was published in 1994, "The Magic Garden Explained, The Internals of Unix System V, Release 4". That probably covers a ton of the methods and concepts. Then we have BSD, which has been public for 15 years with the blessing of AT&T. Then we have Unix v32, which Caldera itself made public under a BSD-style license in 2001 I believe.

    Unless they can point to a specific section of code that IBM got in 1984 that contains a method and concept that IBM disclosed, and that was still secret at the time of disclosure, they don't have a chance at summary judgement. And since they have already been told to disclose all of this, there is no reason that these items should be allowed.

    The quote about Harry Potter doesn't really have much bearing as they are not claiming copyright infringement. Methods and Concepts are not copyrightable, and using themes and situations (which are copyrightable) from another book is not the same as using methods and concepts of a computer program.

    Stuart rebuts. He said that IBM uses an assumption that for every method and concept, there's source code. He claims that not supported in case law.
    Show me where in case law a plaintiff has won a case about "methods and concepts" where they haven't had to show how their code even contained those methods and concepts.

    [ Reply to This | # ]

    Simple summary:
    Authored by: bigbert on Saturday, April 15 2006 @ 04:32 PM EDT
    "Dis is my car. It got four wheels an' go brrm-brrm. Dere de Linux car. It
    got four wheels an' go brrm-brrm. Clearly, ya honour, dey copied our mefids an'
    concptts-thingie"

    ---
    4c 69 6e 75 78 20 52 75 6c 65 73 21

    [ Reply to This | # ]

    Wright/Phillips LKML posts
    Authored by: Anonymous on Saturday, April 15 2006 @ 05:09 PM EDT

    Item 52, the Wright/Phillips allegation (not item 2, as that allegation is not subject to IBM's present motion to limit) can confidently be identified as this LKML thread entitled "Semaphores used for daemon wakeup".

    Previously, in an under-appreciated comment here on Groklaw, error27 identified the Bligh allegation (Item 23) as this LKML thread which refers derogatively to Dynix/ptx's "error event subsystem".

    Item 146 apparently involves Paul E. McKenney's paper "Differential profiling" published and available for purchase here.

    It would be much appreciated if the Groklaw glitterati could pursue these leads. For example, were these contributions ever actually merged into Linux?

    The status of all 294 allegations and what has so far been revealed about them is tracked on this table of the 294 alleged violations.

    -- Old Nob

    [ Reply to This | # ]

    The changing claim of SCO
    Authored by: Anonymous on Saturday, April 15 2006 @ 06:26 PM EDT
    I'll apologize in advance in case anyone has already posted this observation, I
    haven't had time to read all the posts.

    I find it fascinating how in the begining of their claimS SCO stated how there
    were hundreds of thousands of lines of UNIX code copied directly into Linux,
    line for line, including the programmer comments. Now its now longer about
    literal copying, it's about methods and concepts. Now SCO says you won't find
    line for line copying. Personally I think this is a positive development.
    Since SCO must become less specific in their claim instead of more specific,
    three years since the start, I don't think it bodes well for them.

    [ Reply to This | # ]

    With specificity: Caldera's implementation of STREAMS.
    Authored by: Anonymous on Saturday, April 15 2006 @ 09:35 PM EDT
    I humbly submit the following into evidence.

    File: /pub/netware/README Created: 24-Jun-1998 Updated: 21-Aug-1998

    This directory on Caldera's FTP site contains the components of the Caldera(R) NetWare(R) for Linux(R) software. To download the free three-user version, see the appropriate "INSTALL" file for your Linux distribution. Each of the "INSTALL" files contains a list of software to download and instructions for installing NetWare for Linux.

    Description of contents in this directory:
    INSTALL.general - General Linux installation instructions
    INSTALL.openlinux - Installation instructions for Caldera OpenLinux users
    INSTALL.redhat - Installation instructions for Red Hat Linux users
    LICENSE - NetWare Server for Linux license agreement
    README - This file README.
    pserver - Print Server setup instructions
    CHANGES - Description of recent NetWare for Linux updates RPMS/ - NetWare client/server, updated utilities, and binaries
    SRPMS/ - Updated utilities and sources
    clients/ - NetWare clients for non-Linux systems
    col/ - OpenLinux 1.2 install/update directory structure
    docs/ - NetWare guides in HTML format
    index - More detailed list of files
    patches/ - Kernel patches for IPX and streams
    rh51/ - Files used for Red Hat(R) Linux 5.1 installations
    update.NWS4L - Automated update script for OpenLinux 1.2 system


    netware-linux/patches/

    linux-ipx-COL.patchlinux-ipx -COL.patch 9.68 KB-Jul 18 1998 12:00:00 AM
    linux-streams-COL.patchlinux-streams-COL.patch 21.36 KB-Jul 18 1998 12:00:00 AM
    streams-1.30.98.tar.gzstreams-1.30.98.tar.gz 280.46 KB-Jul 18 1998 12:00:00 AM
    streams.update.tgzstreams.update.tgz 80 KB-Jul 18 1998 12:00:00 AM

    .............

    $ tar zxvf ../streams-1.30.98.tar.gz
    ./
    makefile
    include/
    include/sys/
    include/sys/LiS/
    include/sys/LiS/poll.h
    include/sys/LiS/stats.h
    incl ude/sys/LiS/share.h
    include/sys/LiS/linux-mdep.h
    include/sys/LiS/loop.h< br> include/sys/poll.h
    include/sys/strconfig.h
    include/sys/strport.h
    include/sys/stropts.h
    head/
    head/stats.c
    dirs_made
    LSM
    scop e
    Makefile
    LICENSE
    LICENSE.README
    README
    README.PATCH
    RE ADME.TEST
    README.DEBUG
    README.INCL
    README.DRVRS
    VOLUNTEERS
    N OTES
    patches.kernel.24-27
    COPYING
    patches.semaphores
    patches.str eams
    install.sh
    patches.kernel.28-33


    ..............

    $cat README
    Linux STREAMS Package

    CONTENTS

    This package gives UNIX(TM) SVR4 compatible STREAMS capability to the Linux system. It consists of the following parts:

    1) A patch for the kernel (currently 2.0.24-33) that allows the STREAMS executive to be compiled into the kernel directly or as a module. See README.PATCH.

    $ head README
    Linux STREAMS Package

    CONTENTS

    This package gives UNIX(TM) SVR4 compatible STREAMS capability to the Linux system. It consists of the following parts:

    1) A patch for the kernel (currently 2.0.24-33) that allows the STREAMS executive to be compiled into the kernel directly or as a module. See README.PATCH. daniel@omara:~/colstreams$ head README.PATCH Patching the Kernel ===================

    The LiS distribution contains patch files that are intended for use with the 2.0.24-2.0.33 versions of the kernel. There are patch files for the 2.0.24-2.0.27 kernels and the 2.0.28-2.0.33 kernels. You must determine which version of the kernel you are going to patch to continue with this installation.

    You can install the STREAMS executive one of two ways

    ...........

    The "evidence", line numbers, kernel versions, dates, times.

    Of course, it's only LiS. But SUSE's "implementation of STREAMS" is apparently just ss7, the decendant of LiS.

    Caldera had a long history of working to incorporate STREAMS into Linux in it's desire to make Linux a branded UNIX.

    Google Lasermoon +linux-FT +Caldera, there's plenty of interest.

    Newsgroups: comp.os.linux.announce Subject: Caldera Open Linux Announcement

    -----BEGIN PGP SIGNED MESSAGE-----

    CALDERA OPEN LINUX PRODUCT TO OBTAIN POSIX AND FIPS CERTIFICATIONS, AND THE X/OPEN BRAND FOR UNIX 95 AND XPG4 BASE 95

    Lightweight Directory Access Protocol (LDAP) and localization added to Caldera's product line.

    LINUX KONGRESS, BERLIN, Germany May 23, 1996 Caldera, Inc. today announced that it has acquired additional key Linux technologies and engineers, enabling the company to achieve the X/Open brand for UNIX 95 and other certifications for its next version of the Linux operating system, Caldera Open Linux, upon which Caldera will base its product line beginning this Fall. Caldera believes the X/Open brand and other certifications are the next steps forward in providing the corporate and government markets with proven Linux technologies and products, which have gained substantial market share among the Internet and development communities during the past several years. Caldera also today announced plans to add LDAP technologies to Caldera's product line.

    "By developing and publishing source code over the Internet, Caldera and the Linux community are changing the way that an X/Open branded UNIX 95 operating system is developed and distributed," said Bryan Sparks, President and CEO of Caldera, Inc. "Linux technologies developed by the Internet community have secured market share and application development that rivals the best of established computer industry vendors. Caldera development and infrastructure efforts will now take Linux technologies and products into companies, governments and other organizations that demand that software undergo rigid standards testing and certifications."

    Caldera has acquired additional Linux technologies from Lasermoon of Wickham, England. Lasermoon pioneered Linux's migration towards X/Open standards and other certifications, and held the necessary test suites and membership in The Open Group, the leading consortium for the advancement of open systems. Ian Nandhra, one of Lasermoon's co-founders, is now Caldera's Director of Product Certification.

    Caldera has also retained the UNIX systems and Linux expertise of engineers from Linux Support Team (LST) of Erlangen, Germany, who will spend the next few months integrating technologies from Lasermoon, Caldera's existing operating system, additional Single UNIX Specification APIs and Internet technologies, and LST's Linux 2.2 operating system distribution, including the version 2.0 of the Linux kernel. The resulting combination of the Linux OS will be called Caldera Open Linux. It will be POSIX.1 (FIPS 151-2) certified, localized and fully compatible with Caldera's existing products.

    Caldera Open Linux, scheduled for release in Q3 1996, will be published freely with full source code via the Internet to individuals and organizations seeking stable, UNIX systems solutions. Caldera plans to achieve: POSIX.1 (FIPS 151-2) in Q3 1996; XPG4 Base 95 (POSIX.2, FIPS 186) by Q4 1996; and X/Open brand for UNIX 95 based on the Single UNIX Specification (formerly known as SPEC 1170) during 1997.

    "The Open Group is very pleased that Caldera has chosen to obtain the X/Open brand for UNIX 95 for its version of the Linux operating system," said Graham Bird, Director of Branding for the Open Group. "Once Caldera Open Linux achieves the X/Open brand, it will be qualified to bid business in the open systems market the value of which exceeds $16 billion in procurement of X/Open branded products alone."

    Ransom Love, Vice President of Marketing and Sales for Caldera, added,"Our customers are pleased with the capabilities of Caldera's first product, the Caldera Network Desktop, and are now asking us to provide the X/Open brand, localization, and additional technologies. Caldera Open Linux will provide this additional functionality and certification capabilities that no existing Linux OS version can provide."

    Caldera made this announcement from Linux Kongress in Berlin, Germany, where the core of Linux developers and vendors worldwide meet each year to discuss accomplishments and future plans for Linux technologies. At Linux Kongress, Caldera planned to meet with key Linux developers and vendors to discuss how Caldera can best meet the needs of the Internet community, Linux developers and enthusiasts, and the commercial computer industry market all of which are seeking to lower computing costs while increasing the functionality and availability of customizable software systems.

    Caldera will collaborate with developers in the Internet and Linux communities to develop and refine technologies that add specific functionality that Caldera's customers are requesting. In addition to publishing the source code for Caldera Open Linux, Caldera will provide a significant percentage of net revenues from the product back to the Internet and Linux communities through funding for future technology development.

    Caldera is also collaborating with mainstream industry software vendors (ISVs) who are porting their products to Caldera's platform. Caldera and its partners are delivering products that provide Internet and UNIX systems capabilities at commodity pricing.

    LDAP

    Caldera also today announced plans to release Lightweight Directory Access Protocol (LDAP) services and incorporate LDAP into Caldera's product line this Fall. LDAP creates a standard way for Internet clients, Web servers and applications to access directory listings of thousands of Internet users.

    "Caldera supports LDAP as a proposed open standard for directory services on the Internet," said Sparks. "LDAP will enable Caldera's customers to access online directory services via the TCP/IP network protocol."

    Caldera Europe

    Currently, Caldera's European business is handled by LunetIX based in Berlin, Germany. This Fall, Caldera will create Caldera Europe, comprised of employees from both LunetIX and LST. European customers and resellers seeking additional information about Caldera should contact LunetIX in Berlin at telephone number +49-30-623-5787 or contact Caldera's Provo, Utah-based headquarters.

    The Caldera Linux Operating System

    Caldera's mission includes creating the products, alliances, VAR channel, ISV channel, technical support programs and corporate accountability necessary for an emerging technology to obtain widespread implementation in the business environment. Using Linux technologies, Caldera has a solid start. Mirai, a Chicago-based consulting company, polled Webmasters worldwide in 1995 and found that nine percent of World Wide Web servers were running on the Linux operating system (http://www.mirai.com/survey). This places Linux second only to Sun technologies as a UNIX systems Web server platform.

    Caldera has created a solid foundation on which third party developers can successfully design, develop, distribute or employ services that meet the needs of the expanding market with low product costs for consumers.

    Caldera, Inc., a privately held company established in 1994, empowers the Internet community, developers, OEMs, channel partners, ISVs, industry partners, consultants and end- users to collaborate, innovate, build and deliver meaningful computing alternatives based on Linux to the business community. Caldera is at http://www.caldera.com/ or (801) 229-1675. For orders and information call (800) 850-7779 in the United States or (801) 269-7012 Internationally.

    ###

    Caldera is a registered trademark; and Network Desktop, Caldera Solutions CD, and Caldera Open Linux are trademarks of Caldera, Inc. UNIX is a registered trademark, in the United States and other countries, licensed exclusively through X/Open Company Limited. X/Open is a registered trademark of X/Open Company Limited.

    Caldera Press Contact:

    Lyle Ball, Senior Manager, Public Relations
    lyle.ball@caldera.com, tel: (801) 229-1675 x305

    -----BEGIN PGP SIGNATURE-----
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    iQCVAwUBMbB3CoQRll5MupLRAQG7VAQAlCD/OEO+cwHxCLfvqRCDBJ7mL/SYRIrZ XYoMu35BljH3wsuFWgBMerCbns04+6CuJqgwtuLIM3yCu6mKjEJUDuPgOSlc+I83 5fNQHldHs0Z37T 5tjbqI/DbKt+1T5pbwjhped8ZyjyJB5tfH6kRN5+jHKhfxnNSm VOZRtRBtk9kG6 -----END PGP SIGNATURE----- -- This article has been digitally signed by the moderator, using PGP. Finger wirzeniu@kruuna.helsinki.fi for PGP key needed for validating signature. Send submissions for comp.os.linux.announce to: linux-announce@news.ornl.gov PLEASE remember a short description of the software and the LOCATION.

    [ Reply to This | # ]

    The mistake I think many people are making in interpreting SCO
    Authored by: Anonymous on Saturday, April 15 2006 @ 10:49 PM EDT
    A lot of people are interpreting SCO's laste minute switch to methods and
    concepts, as some kind of preplanned action.

    While we can't rule that out, another possibility is that they simply are saying
    whatever is most expedient at the time.

    Go back over the case....

    In no particular order:


    In 2003, when IBM asked for details of SCO's allegations, SCO first produced a
    massive paper dump, then a massive electronic dump, and said "find it for
    yourself".

    In late 2003, when told they need to point out the trade secrets at issue by
    Judge Wells, they didn't point out any. They even said there aren't any in
    System V, and that was beyond dispute (Kevin McBride at December 2003 hearing).
    They didn't produce any responses to trade secrets questions in the compelled
    discovery, but instead dropped the trade secret claim in their case. One reason
    they might have done that, is to be a trade secret, they need to say to whom the
    secret has ever been disclosed, and AT&T couldn't do that even as far back
    as the BSD case. The methods and Concepts they are talking about now - is
    basically a return to their dropped claim, under a new name - and they will
    have to show they kept and protected M+C secret (which AT&T couldn't show in
    BSD, and which SCO themselves conceded there were none in System V), and the
    same problems with M+C arise.

    In the Summary Judgement motions, they began by claiming Gupta, etc. showed
    copyright infringement. Then they conceded that it didn't, but simply showed
    that there was stuff that might be worth investigating.

    When they wanted massive discovery from IBM, they said said without it,
    comparison of programs was impossible and would take 25,000 years. Now they say
    comparison is easy, and IBM should do it for themselves - but don't explain,
    why, if it's so easy, they didn't fill in the missing boxes for the 198 items.

    When it suited them in the 2nd amended complaint, filed in February 2004, they
    alleged both IBM's contributions to Linux, and IBM's continued distribution of
    AIX after purported license termination, infringed SCO's copyrights. They also
    made the same issue a centerpiece of their public allegations - including in a
    conference call in 2003, which Mark Heise participated, in which very specific
    numbers of supposedly infringing lines contributed by IBM, were named. But when
    IBM brought added their 10th cause of action seeking to clear IBM's copying of
    the whole of Linux (including IBM's contributions and others' contributions),
    SCO suddenly claimed that their only copyright issue was about IBM's continued
    distribution of AIX.

    Or remember, when they were requesting massive discovery from IBM, they said how
    only it would allow them to point out the lines of code at issue. In December
    2005, in fact *AT THE SAME TIME* or *AFTER* the final disclosures were sent to
    IBM, they were still arguing for more massive discovery from IBM, on the basis
    it would allow them to point out the lines of code at issue. But, now, they are
    arguing they don't need to find lines of code, never did, and so on... it's not
    just the CMVC issue from a year ago - the question is why were they asking for
    more of the same in December 2005, in order to find lines of code, at the same
    time as producing disclosures which they NOW argue do not need to include lines
    of code.

    The same pattern continues in other cases.

    They threatened Red Hat with a lawsuit. When Red Hat sued them first, they
    fired a press release back the same day saying they would countersue for
    copyright infringement and "conspiracy". Then they went to the
    Delaware court, saying they never had any issue or controversy with Red Hat.

    Or for example, in Novell. They ask Novell to transfer copyrights. Then they
    suddenly discover, they didn't need to ask Novell, because according to SCO,
    they had the copyrights all along. Then they say that, Novell has conceded that
    SCO owns the copyrights (even while Novell was vigorously asserting the dispute
    was still in progress in private correspondence). Later they argue that
    Novell's assertion is wholly in private, is tantamount to acquiesence, but then
    when Novell's position that the copyrights were not transfered is revealed in
    public, they also argue, that it's tantamount to slander of title.

    And I could go on and on and on.

    For example, remember the BPF code. When initially revealed it was supposedly
    evidence of "non literal copying". Then it was supposedly evidence of
    their supposed ability to detect similar code (no matter that they never own
    BERKLEY Packet Filter). A year later, as noted earlier, their supposedly
    amazing code detection abilities disappeared, and the only code comparison
    possible was manually comparing sheets of paper, to take 25,000 man years.

    And I could still go on and on and on.


    In short there's a real simple hypothesis that could explain SCO's behavior:

    1. There is no master plan

    2. They decided to be nuisance (by suing)

    3, They just say whatever seems expedient at the time.


    I don't know how one would go about proving or disproving this hypothesis - but
    to me the hypothesis seems consistent with those facts that I'm aware oof.


    Quatermass
    IANAL IMHO etc

    [ Reply to This | # ]

    SCO copies IBM's Methods and Concepts...
    Authored by: Anonymous on Sunday, April 16 2006 @ 12:07 AM EDT
    The Rochkind declaration seems to be a table, not unlike IBM's, but that has different information on each of the things. It appears to specify what SCO *did* include for each allegation and whether it meets the requirements for a Methods and Concepts allegation (with, of course, lots of filled in check boxes).

    The table, on a couple of plain sheets of paper, was held up for reference by both Stuart Singer and David Mariott. The table's columns were explained. It looks so similar in physical appearance that David Marriott at one point mistakenly held it up as if it was his own table, then corrected himself saying "refer to *our* table that looks *just like* their table."

    Hmm... Maybe IBM should claim that they developed the "Methods and Concepts" that were used to design their table. And that SCO has now violated their copywrite in designing their "Rochkind declaration" table to look similar. After all people wanting to use the IBM table could become confused and end up using the SCO table instead.

    [ Reply to This | # ]

    First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: ExcludedMiddle on Sunday, April 16 2006 @ 12:18 AM EDT
    David Marriott pointed out that SCO's allegations lack a "real" allegation. Alleging that IBM put *their own* code, methods & concepts, whatever, into Linux doesn't bother them in the least. What SCO was missing was how this relates to anything SCO owns. SCO didn't say "This method and concept comes from Unix Sys V, R4, file xyz, lines 67-278 and can be shown to be implemented in Linux version 2.4.16, file xyz_1.c, lines 120-400 and this admission/submission/email/whatever shows IBM caused it to be put there." That's what's missing from SCO's final disclosure.
    I believe that the above quote is why they don't feel that this new expert hurts them at all. They get to make the above point again, more clearly, succinctly, and using an expert.

    Let's face it, this one IS the point that they are making in this motion. It's the heart of it. It's what I hope the judges realize if they have any temptation to deny it. Or, if it's improper to deny this motion because of the difficulties with proving wilfulness, then at least let the point be made clearly, and let it be removed in the PSJ for similar reasons.

    [ Reply to This | # ]

    just a question....
    Authored by: NemesisNL on Sunday, April 16 2006 @ 05:52 AM EDT
    wouldn't a lot of these methods and concepts originate in the unix
    standards.....meaning everybody knows them already and there was nothing to
    secretly contribute?

    Standards govern almost any OS because without them you would never be able to
    write software that runs on it. Wouldn't a lot of people be exposed to these
    methods and concept through their study... If so ..and sco wins...wouldn't that
    mean that everyone that ever took a course in unix would be "unclean"
    and never be able to do programming ever again without paying someone?

    [ Reply to This | # ]

    The real question is ...
    Authored by: q.kontinuum on Sunday, April 16 2006 @ 06:36 AM EDT
    ... why does IBM not fight stronger to avoid unneccesary delay? Let's face it:
    IBM is not a person, but a company. Their intent is not to fight a holy war for
    open source or particularly Linux, but to increase shareholder value. So, whats
    in this case for them? The assets of SCO are probably used up when this case
    closes, so no noteworthy positive cash flow to be expected for them. What realy
    counts migh be the marketing effect. Everyone in the OSS community watches them
    as the good (TM) company. This is worth more than any mony from SCO.

    What else could be reported about IBM? AFAIK they support the pro-sw-patent
    lobby in EU. They have more patents than most other High Tech companies. Their
    investments to the Open Source community shouldn't be undervalued, but these
    contributions don't lead to half as much positive publicity as this case does.

    I think, it is in IBMs interest to drag on this case while looking as hard
    fighting as possible.

    PS: I'm not against IBM. They saw the opertunity provided by open source and
    open source currently profits from IBM. But we should never forget that IBMs
    interest is to increase shareholder value, not to fight a holy war for open
    source.

    [ Reply to This | # ]

    First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?"
    Authored by: Harry Nicholls on Sunday, April 16 2006 @ 08:59 AM EDT
    If it is SCO's position that actual code expressing the methods and concepts is
    not necessary to be shown in SYSV, then how can they enforce the original
    AT&T contract with IBM? Didn't the letter agreement of Feb 1st 1985, clarify
    the meaning of clause 7.06a in that IBM was only bound to not disclose the
    methods and concepts contained in "SOFTWARE PRODUCTS"? The letter
    agreement specifically gave IBM the right to develop its own code/products using
    those methods and concepts, providing that they did not copy any code from
    SOFTWARE PRODUCTS.
    Seems to me, that SCO would be required to at least show where (by version, file
    and lines) the methods and concepts are in SOFTWARE PRODUCTS. The methods and/or
    concepts have to be somewhere in SOFTWARE PRODUCTS, for IBM to have violated the
    contractual agreement not to disclose them.

    Harry Nicholls

    [ Reply to This | # ]

    There will be an appeal, whatever the ruling
    Authored by: Anonymous on Sunday, April 16 2006 @ 10:25 AM EDT
    SCO can delay the suit by appealing a loss; IBM must appeal a loss since it
    really can't defend itself against amorphous accusations. IANAL, so I don't
    know whether court rules could cut the appeal short.

    [ Reply to This | # ]

    Scox to Judge:
    Authored by: Anonymous on Sunday, April 16 2006 @ 11:22 AM EDT
    Your honor, don't tell *us* what we need to provide to IBM. We will decide what
    IBM does, or does not need.

    In this case, we have decided (several months after the court's order, and at
    the last minute). That IBM does not need specific files and lines, nor does IBM
    need to know our specific allegations. We know that's what was ordered. But,
    once again, we have decided that order that order was stupid. So, as usual, we
    will ignore that particular order.

    We realize, that technically we are not entitled to bring in expert testomony at
    this point. But, we are doing it anyway.

    As usual, we are demanding more delay. Now snap to it.

    [ Reply to This | # ]

    • Scox to Judge: - Authored by: Anonymous on Tuesday, April 18 2006 @ 02:58 PM EDT
    To me, the single most important observation
    Authored by: msfisher on Sunday, April 16 2006 @ 12:30 PM EDT
    I've only done a small amount of progamming, and that in (please forgive me)
    Excel VBA. However, one thing seems obvious to me. A method or concept is
    something that exists in someone's mind. Until someone can read a programmmer's
    mind, the only way to determine if a method or concept was understood and/or
    implemented is in the code. No source code, no way to know. So, Chris's
    observation that

    "What SCO was missing was how this relates to anything SCO owns. SCO didn't
    say "This method and concept comes from Unix Sys V, R4, file xyz, lines
    67-278 and can be shown to be implemented in Linux version 2.4.16, file xyz_1.c,
    lines 120-400 and this admission/submission/email/whatever shows IBM caused it
    to be put there." That's what's missing from SCO's final disclosure."


    is the single most important point made about SCOG's "discovery" thus
    far. Frankly, when the judges realize this I think (and I am most definitely
    NOT a lawyer) that the lack of a demonstrated connection between code and
    concept may sink SCOG's case. It seems to have the potential to do so, at
    least.

    [ Reply to This | # ]

      Methods and Concepts???
      Authored by: polymath on Sunday, April 16 2006 @ 01:47 PM EDT
      Do "methods and concepts" claims hold any water? Are software
      "methods and concepts" protectable under trade secret, patent or trade
      mark law? Does SCO in fact "own" the claimed "methods and
      concepts"? (IMHO no, no and no but IANAL.) Do the POSIX standards and
      UNIX United (both created with the participation of SCO's predecessors in
      interest) vacate SCO's claim to ownership/control? How can SCO claim protection
      for "methods and concepts" when its Linux compatibility layer uses
      Linux "methods and concepts" and when SCO distributed Linux itself?
      If "methods and concepts" are protected is all FLOSS that implements
      or interfaces with proprietary closed source software APIs in jeopardy? (I
      think that there is at least one large software vendor that would be delighted
      to see such a theory upheld.) For comparison: Is a semiconductor maker
      prohibited from making functionally equivalent circuits if trademarks, patents
      and trade secrets are respected? Even though the specifications were released
      to help customers not competitors?

      [BTW Many of these comments seem little more than rants that add nothing to our
      understanding. Each one presents that portion of the public record that
      supports its position but none takes into account all the relevent information,
      much of which is sealed from public view. We are stuck waiting for the court's
      (courts') decision(s) and our speculations and prognostications are moot.]

      [ Reply to This | # ]

      In US law, is there...
      Authored by: ian.waring on Sunday, April 16 2006 @ 03:22 PM EDT
      ... the concept of "contempt of court"?

      If a judge in the UK instructed you to provide - specifically - code down to
      line number detail to back your claims, and you went on to not provide this on
      one occasion, let alone 4-5 - you'd have the book thrown at you. The whole SCO
      legal team would be in prison by this stage.

      I pray that the judge starts to behave in a way that would earn their seat of
      office - and the US legal system - some international respect. It's nowhere
      close yet, and heading fast in exactly the opposite direction.

      [ Reply to This | # ]

      Missing columns
      Authored by: Anonymous on Sunday, April 16 2006 @ 09:13 PM EDT
      " But the columns are not Unix, AIX, Dynix, Linux etc. The columns are, I
      believe, things like "Admission", "Disclosure Included",
      "Meets Req'mts for Methods & Concepts", & etc"

      Next reply from IBM expert should include columns like :
      Exclusively owned by SCO, Ownership is questionable, home ground code / concept,
      etc.

      [ Reply to This | # ]

      Calling Kevin McBride
      Authored by: sk43 on Sunday, April 16 2006 @ 10:12 PM EDT
      Kevin, could you please go beat Stuart Singer over the head and knock some sense into him? In case you want to know what I am referring to, here is your opening statement to Judge Wells in the Dec 5, 2003 hearing:
      The -- what we need to get our arms around collectively, on our side and on IBM's side, is a clear definition of what source code is at issue, what source code is potentially an infringement.
      Thank you, Kevin.

      [ Reply to This | # ]

      Paralogia
      Authored by: Anonymous on Monday, April 17 2006 @ 03:01 AM EDT
      "Stuart rebuts. He said that IBM uses an assumption that for every method
      and concept, there's source code. He claims that not supported in case
      law."

      It may not be supported in case law, but it certainly is in the mind of any
      rational software engineer. You can write concepts and methods all day. Until
      you actually code it up, THEY DON'T EXIST IN THE PRODUCT.

      How does this Stuart expect a concept or method gets into a program without
      being expressed in the source code? Gremlins?

      [ Reply to This | # ]

      Is this about names? Files, routines, variables?
      Authored by: Anonymous on Monday, April 17 2006 @ 04:13 PM EDT
      The only thing which comes to mind for not specifying lines of infringing code,
      is that the methods and concepts SCOX are referring to are the names of things.
      For example, a list of possible error numbers gets placed in a header file
      called errno.h. Which on the ridiculous side of things, means that they might
      be suggesting that nobody can use a variable called 'i' as an integer counter.

      [ Reply to This | # ]

      First Report from the Hearing - Updated 4Xs - Wells to SCO: "Is This All You've Got?"
      Authored by: Anonymous on Monday, April 17 2006 @ 05:03 PM EDT
      Well Judge? That has been what we have been asking for years now. "Is that
      all you got?"

      [ Reply to This | # ]

      Email from Tim Wright to Daniel Phillips
      Authored by: iabervon on Monday, April 17 2006 @ 09:41 PM EDT
      The email he referred to is presumably this one. The interesting thing is that it is in response to Daniel Phillips posting a patch proposing that scheme, presumably with no knowledge that Dynix had done it (he cites an "Arjan Vos", actually "Arjan van de Ven", who has no association with IBM or any other SCO-licensed UNIX vendor so far as I can tell). Tim Wright is responding in support of the patch, based on having experience with this method. A Nigel Gamble also mentions that a lot of operating systems use this technique. Tim Wright goes on to say that the proposed change isn't actually all that similar, and cites Dijkstra. And then the patch seems not to have been applied.

      So this turns out to be a case where somebody outside of IBM comes up with a common technique that Dynix happens to use, proposes it, somebody from IBM says that Dynix (among others) does things that way, but not really, and it's not original to them, either, and, in any case, the code doesn't end up in Linux.

      I don't think SCO could come up with a worse example for them. Code they don't own is similar in spirit but not design details to code which IBM didn't submit to Linux and which Linux doesn't include and never did.

      [ Reply to This | # ]

      McKenney's cited paper ?
      Authored by: Anonymous on Tuesday, April 18 2006 @ 12:53 PM EDT

      McKenney's "Differential Profiling" paper available here or indirectly here

      omz

      [ Reply to This | # ]

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