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The Redacted Marc Rochkind Declaration
Thursday, April 20 2006 @ 02:28 PM EDT

Here it is. The Declaration of Marc Rochkind [PDF], the redacted version. They hired him in May of 2005. That means he knows who the folks are who are paying him and what they stand for. By then, the Canopy-Noorda lawsuit had happened, SCO had claimed the GPL was unconstitutional and written to Congress about it, Darl McBride had claimed the MyDoom virus was probably written by Linux folks when it turned out to be Eastern European criminal spammer gangs using Windows and he never apologized, SCO had claimed loudly and publicly that it already had a mountain of evidence of IBM's copyright infringement before even beginning discovery, and SCO and Maureen O'Gara et al had attacked Groklaw outrageously,. And he still agreed to be hired.

So have a look, folks, at what he has to say. There is no mountain, for starters, not even a hill of beans. 5 billion dollars in damages for this little puny list? Hence Judge Wells' "Is that all you've got?" question to SCO. And with regard to IBM's Motion to Limit SCO's Claims, those items IBM wishes to toss out are all about methods and concepts, Rochkind says. That's it? As far as I can see, IBM has the contractual right to use methods and concepts, but maybe this expert didn't read those contracts. That's not his job.

They have found emails, on the Internet, I gather, where IBM employees, or more probably Dynix guys, allegedly revealed Dynix code while schmoozing about how to code things. So this is about Dynix, I gather. It doesn't even appear to be about IBM, as a company, officially doing a thing, just about some emails by individuals who they claim worked for IBM in the sense that IBM eventually bought Dynix. And that's all this case is about? We'll have more to say about the email, because I think we have found the email referenced by SCO's lawyer Stuart Singer at the April 14 hearing, and to my eyes, there isn't anything there to complain about. More to come.

You can always find experts willing to take any side. Experts get paid. And remember, experts lined up to dutifully claim Microsoft wasn't guilty of antitrust offenses too, and it didn't save Microsoft from a guilty verdict in the US antitrust litigation.


  


The Redacted Marc Rochkind Declaration | 428 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: MadScientist on Thursday, April 20 2006 @ 03:07 PM EDT

[ Reply to This | # ]

OT materials here please
Authored by: MadScientist on Thursday, April 20 2006 @ 03:08 PM EDT

[ Reply to This | # ]

Never let your expert practice law
Authored by: AllParadox on Thursday, April 20 2006 @ 03:25 PM EDT
IMHO, this gentleman has made a mistake. The law firm that hired him made a
larger one.

Where he agrees or disagrees with IBM's expert is mildly interesting.

That he decided not to follow Judge Wells' order is really juicy.

If I read his statement correctly, apparently *he* decided that there was no
need to follow Judge Wells' order, and that there was no need to object to it,
and there was no need to go back to Judge Wells for clarification about
"methods and concepts", because IBM's expert was wrong, in his
opinion.

Judge Wells might not be particularly sympathetic to his attitude.

It is now official: we are back to "methods and concepts".

If this fellow has been on the payroll since May of last year, why has it taken
this long to get an expert statement out of him?

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

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

[ Reply to This | # ]

The Redacted Marc Rochkind Declaration
Authored by: Anonymous on Thursday, April 20 2006 @ 03:27 PM EDT
Ok, so Mr. Rochkind identifies areas that M&C appear to be the same. Big
whoop.

None of this goes to explaining how SCO gets to violate the terms of the court
order for identifying their claims with specificity and explicit lines of code
from ... and to... .

Nor does it seem (although we haven't seen everything) that SCO has identified
everything they claim to have rights to, as was also required.

No wonder IBM said (parphrasing) "sure, go ahead and let 'em file it.. it
won't prejudice us one bit as long as we have an opportunity to respond. I'm
just dying to see the response from IBM.

...D

[ Reply to This | # ]

The Redacted Marc Rochkind Declaration
Authored by: Anonymous on Thursday, April 20 2006 @ 03:28 PM EDT
In all fairness, shouldn't we and certainly IBM start to face reality?
I mean, this really doesn't look good.

[ Reply to This | # ]

Is SCOx willing to lose to IBM just to win by having Methods and Conecpts allowed a day in court
Authored by: Anonymous on Thursday, April 20 2006 @ 03:40 PM EDT
Is SCOx willing to lose to IBM just to win by having Methods and Conecpts
allowed a day in court?

Maybe, as if they can use it in this court for the 1st time, they will start
going out and finding infringers, on a case by case basis they will say, and
they will use this very broad Methods and Concepts like it was a new invention!

No Patent required and whole new IP associated with a Method and a Concept...
whatever the heck that is. Their arguement is that every jury in every case
will have to decide if the infringer is guilty or not.

Very expensive litigation will clog the courts, or everyone will line up to
settle with SCOx and get a license for Methods and Concepts.

The judge has to say NO to this tactic. Let SCOx appeal the NO ruling all the
way to the Supreme court... there is no way that a judge should side with SCOx
and allow this at this level where so many innocent users of LINUX are to be
concerned with... Let the Supreme Court be the one to rule in favor of SCOx on
this (if they will, but Wells should not, the courts in Utah should say to
SCOx... "hey you want a favorable ruling on your Methods and Concepts
tactics, take it up to the next level", and tell SCOx to appeal this NO to
Methods and Concepts ruling all the way to the Supreme Court!!!

[ Reply to This | # ]

CMVC
Authored by: Anonymous on Thursday, April 20 2006 @ 03:41 PM EDT
A footnote on page 3: "IBM notes that SCO 'appears not to have even used
[CMVC] to prepare its Final Disclosures'. This is incorrect. I have used CMVC
extensively."

How so? Does he ever explain how, or when he used CMVC?

How might IBM's lawyers, or others, be able to tell whether or in what way CMVC
was used in preparing either the final disclosures or Rochkind's declaration,
aside from trusting to Mr. Rochkind's word?

I am just curious.

Also, something unrelated and a tad offtopic, again because I am just curious. I
notice that the PDF of the Rochkind declaration Groklaw hosted was named
IBM-669.pdf. I notice the motion for permission to submit the Rochkind
declaration is IBM-661.pdf, and IBM's motion opposing this permission was
IBM-664.pdf. What exactly is the origin and meaning of this numbering system? I
have to admit I only ask because I was waiting around to see what IBM-666.pdf
would turn out to be :)

[ Reply to This | # ]

  • More than likely... - Authored by: Nick_UK on Thursday, April 20 2006 @ 03:54 PM EDT
  • IBM-666.pdf - Authored by: Anonymous on Thursday, April 20 2006 @ 04:15 PM EDT
  • Document numbers - Authored by: markhb on Thursday, April 20 2006 @ 04:26 PM EDT
  • CMVC - Authored by: EverGeek on Thursday, April 20 2006 @ 04:55 PM EDT
    • CMVC - Authored by: Anonymous on Thursday, April 20 2006 @ 05:06 PM EDT
      • Heh heh heh - Authored by: Anonymous on Thursday, April 20 2006 @ 11:22 PM EDT
    • CMVC - Authored by: Bill The Cat on Thursday, April 20 2006 @ 05:18 PM EDT
    • CMVC - Authored by: jerven on Thursday, April 20 2006 @ 07:31 PM EDT
      • Clicky link - Authored by: jerven on Thursday, April 20 2006 @ 07:37 PM EDT
      • CMVC - Authored by: Anonymous on Thursday, April 20 2006 @ 11:36 PM EDT
  • He did use CMVC extensively. - Authored by: jfw25 on Thursday, April 20 2006 @ 05:10 PM EDT
  • More patsy - Authored by: tangomike on Thursday, April 20 2006 @ 05:58 PM EDT
    • What patsy - Authored by: Anonymous on Thursday, April 20 2006 @ 07:30 PM EDT
  • weasel wording - Authored by: Anonymous on Thursday, April 20 2006 @ 06:21 PM EDT
  • CMVC - Authored by: Anonymous on Friday, April 21 2006 @ 04:50 AM EDT
Rochkind Doesn't get it....
Authored by: Anonymous on Thursday, April 20 2006 @ 03:49 PM EDT
"methods and concepts" is a dead issue. It died when AT&T amended
the original license to specifically allow them to be used.

It's passed on! It is no more! It has ceased to be! It's expired and gone to
meet it's maker! It's a stiff! Bereft of life, it rests in peace! It's
metabolic processes are now history! It's off the twig! It's kicked the bucket,
It's shuffled off it's mortal coil, run down the curtain and joined the bleeding
choir invisibile!! THIS IS AN EX-ISSUE!!

[ Reply to This | # ]

What I wanna know is...
Authored by: Nick_UK on Thursday, April 20 2006 @ 03:50 PM EDT
... what happens to all the other posturing in previous
court statements/press releases re 'millions of lines of
code/briefcase full' and 'we have proof' with the
supposedly NDA's signed by others to see etc. etc. when
all there is now is the 'vulcan mind meld' osmosis of
supposedly SCO's code (that they don't own anyway, so it
appears).

?

Nick

[ Reply to This | # ]

The Redacted Marc Rochkind Declaration
Authored by: tredman on Thursday, April 20 2006 @ 04:00 PM EDT
Did I read that correctly? Did Mr. Rochkind just admit that UNIX methods and
concepts are freely available in textbooks? Isn't this what we've been saying
all along.

Even if that's not the methods and concepts he's talking about, I'm still
waiting for SCOX to provide some kind of documentation showing that the M&C
in question are actually owned by them.

When I read the complaint in Winternals v Best Buy, I noticed the section where
Winternals speaks in great detail about the IP (copyrights in this case) they
own and how they came to own it (they were the original authors). I can
remember pushing my chair back, pointing at the computer screen and screaming
"See SCO! All you have to do is prove you own what you're litigating
about!".

Unfortunately for them, the most of the issues of ownership is still up in the
air with Novell (at least until a court rules on it), and everything else is
stuff IBM wrote and they're claiming some kind of work-for-hire ownership of.
It's almost like watching the RIAA work, only the RIAA's actually winning for
now.

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

[ Reply to This | # ]

Look at the signasture line
Authored by: blang on Thursday, April 20 2006 @ 04:02 PM EDT
It says: UNDER PENALTY OF PERJURY

[ Reply to This | # ]

Item 204 - the item that wouldn't stay dead
Authored by: Anonymous on Thursday, April 20 2006 @ 04:12 PM EDT
I notice he resurrects item 204 in his declaration.

IBM Initial Memo: Points out item 204, the one which identified some System V
lines in Dynix, didn't actually point out any wrongdoing by IBM

SCO Opposition Memo (We haven't seen but according to IBM's characterization):
Conceded 204 didn't suggest any wrong doing.

IBM Reply Memo: Accepted SCO's concession on 204

SCO's Rochkind Affidavit: Look at the footnote, it nows more or less says IBM
accepts (or doesn't dispute) item 204.... isn't that the exact opposite of the 3
previous filings, including SCO's own, on this issue?

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

The Redacted Marc Rochkind Declaration
Authored by: Anonymous on Thursday, April 20 2006 @ 04:20 PM EDT
Isn’t it evident. If I do use methods and concepts in a program they are to be
found in specific lines of code. If the same methods and concepts are used in
another program they are to be found in specific lines of code of that program.
If the expert cannot specify these lines in both programs, then either different
methods and concepts are used or the expert is not an expert.


[ Reply to This | # ]

If it's methods and concepts, eliminate the code
Authored by: Anonymous on Thursday, April 20 2006 @ 04:30 PM EDT
Since SCO claims they don't need the code since the argument is about contract
and methods and concepts, then Judge Wells should easily agree with IBM's
motion.

Judge Wells should at least order that the code itself is eliminated (leaving
only
SCO's chart without the code) since SCO did not specify any code with the detail

ordered by the judge. This will then open SCO to summary judgment based on
IBM's noninfringement of copyrights. Obviously SCO would have no code to
point to in that case.

[ Reply to This | # ]

Source code is the TRANSLATION of methods and concepts into the desired programming language
Authored by: PhilFrisbie on Thursday, April 20 2006 @ 04:32 PM EDT
This Marc Rochkind is a crack-up. In section '10' he starts out good with
"Contrary to disclosures of source code, disclosures of methods and
concepts neither require an accompanying disclosure of source code". This
is true, for example, if I suggest a concept such as 'disable interrupts before
the lock and not after' any decent programmer could modify his code to use this
concept even if I do not submit a code snippet.

But then Rochkind continues by saying "nor is the method and concept
defined or identified by the source code". Please! DO NOT insult the
intelligence of the programmers reading this declaration! Source code is the
TRANSLATION of methods and concepts into the desired programming language. If
source code uses a method or concept it WILL be identifiable, although it may be
obscure in complex code.

[ Reply to This | # ]

Experts are necessary, just like lawyers
Authored by: Anonymous on Thursday, April 20 2006 @ 04:33 PM EDT
"You can always find experts willing to take any side."

That's true for lawyers as well, isn't it?

Those experts are necessary to guarantee the fairness of the Judicial system.
Regardless of Mark Rochkind's motivation, please keep the discussion centered
solely on his document, not himself.

Let's stay miles away from commenting on individuals, please.

[ Reply to This | # ]

Critical weaknesses regarding this declaration
Authored by: rsmith on Thursday, April 20 2006 @ 04:38 PM EDT

Mr. Rochkind's analysis seems immaterial, because the Letter Agreement replaces §7.06(a) of license SOFT-00015 and removes the clause regarding disclosure of methods and concepts. The valid license only forbids disclosure of licensed source code, not methods and concepts.

Disregarding the side letter and assuming that SOFT-00015 is still valid, there are two other major weaknesses in the declaration:

First of all, whether the allegedly misused "method" or "concept" comes from the material IBM licensed from AT&T (and which they are supposed to hold in confidence according to §7.06(a) of license SOFT-00015) or developed by IBM and Sequent, which they can do with as they please. So even for a method or concept, it should be traced to System V. IMHO this is another critical weakness in this declaration.

Second, if the methods and concepts in question were ever disclosed by other parties than IBM, e.g. published in a book, or already common knowledge.

So even disregarding the fact that the agreements were modified to drop the "methods and concepts" thing, IBM would certainly have no obligation to keep them confidential if one of the two conditions mentions above holds true.

---
Intellectual Property is an oxymoron.

[ Reply to This | # ]

Methods and Concepts (and why SCO will loose)
Authored by: nattt on Thursday, April 20 2006 @ 04:49 PM EDT
If there is a specific method or concept of interest in Unix, it will exist
embodied in code. This code can be listed, or it can be referenced by version,
file name, and lines. If code cannot be produced for this method or concept
of interest, then that method or concept is NOT in Unix.

Similarly, if this method or concept exists in Linux, then it must exist
embodied in code. It cannot exist if code or version, filename and lines
cannot be produced.

SCO talking of methods and concepts cannot get them off the hook for
producing code or versions, filenames and line numbers. They have been
repeatedly asked for this information from IBM and the Judge.

SCO have ignored the fact that methods and concepts must exist in code.
They even go as far as to say "disclosures of methods and concepts neither

require an accompanying disclosure of source code, nor is the method and
concept defined or identified by source code". Well, actually they do
require
source code if you're to show proof that that method or concept has been
implemented. Then you have to trace how this was done, and then you have
to look at contracts to see what was allowed, and, oh dear, reading the
contracts IBM have done nothing wrong.

[ Reply to This | # ]

Giving SCO enough rope to hang themselves
Authored by: Anonymous on Thursday, April 20 2006 @ 04:55 PM EDT
We've been thinking for a long time that SCO keeps getting away with their
antics because the judges want to be sure SCO doesn't have a leg to stand on for
appeal. That's all well and good, but after watching this case for years and
seeing just how much they've gotten away with, I'm starting to believe this case
really will see a jury. And then all bets are off.

This case has been worse than ridiculous from the beginning: Claiming
copyright damages without trying to mitigate them, claiming infringement without
specifying what, claiming to own code without proving it... If it has gotten
this far, how can we still believe that it will stop before it sees a jury of
nice local Utah folks who will be chosen for their lack of computer knowledge
and predisposition against big bad IBM?

If the judges are really too ignorant/scared/useless to have nailed SCO to the
floor already, what new outlandish thing could possibly be so much worse than
what's gone before to make the judges take action?

*sigh*

[ Reply to This | # ]

Anyone else notice that Rochkind has a vested interest?
Authored by: lm on Thursday, April 20 2006 @ 05:00 PM EDT
From EXHIBIT A in the PDF:
In 1988 he invented XVT, the first developer tool to allow programmers to write portable, but native, graphical user interfaces for Windows, Macintosh OS, OS/2, X/Motif, OpenLook and character displays. Methods and concepts from XVT have influenced contemporary user-interface systems such as Java AWT and KDE Qt.
If SCO were to prevail on ownership of methods and concepts, would it not follow that Rochkind would have Sun, TrollTech and many other corporation over a barell?

[ Reply to This | # ]

SCO wants this case to be about clean room development
Authored by: Anonymous on Thursday, April 20 2006 @ 05:02 PM EDT
All this guy did was troll usenet Linux groups looking for posts asking for
advice on how to implement Linux software. If someone (maybe from IBM) answered
"Dynix uses a hash table to implement that" , that was taken as
evidence of copying a method or concept.

I think that SCO has been trying to drag in the landmark case of (NEC v INTEL).
Back in 1976, NEC had a license that allowed them to clone the 8086. But when
Intel looked that NEC's microcode, they cried foul. In that case the NEC V20
microcode bore a number of similarities to the Intel 8086 code.

NEC claimed they used "clean room" software development. The court
validated the clean room process and found it likely that code similarities were
dictated not by copying of Intel's microcode, but rather by functional
constraints of the hardware, the architecture, and the need for 8086
compatibility.

In this case, Linux was not developed in nearly the strict clean room that NEC
used. That seems to be the basis of SCO's lawsuit (at this point).

[ Reply to This | # ]

The Redacted Marc Rochkind Declaration
Authored by: blacklight on Thursday, April 20 2006 @ 05:04 PM EDT
"You can always find experts willing to take any side." PJ

This is why they are called experts-for-hire or rent-an-expert.


---
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 | # ]

The Redacted Marc Rochkind Declaration
Authored by: Anonymous on Thursday, April 20 2006 @ 05:10 PM EDT
Is it discussions like the one at lkml.org/lkml/1997/1/31/54 which is the basis for SCO's case. To me it is a technical discussion and allthough mentions the way a certain thing is done in UNIX, is it specific enough to constitute a disclosure of code?
Sigvald Refsum

[ Reply to This | # ]

Waving Hand, Begging Question
Authored by: hardmath on Thursday, April 20 2006 @ 05:17 PM EDT
Prof. Davis should have a field day on the Reply. A year spent searching for
improper disclosures seems to have impaired Mr. Rochkind's cability for
independent analysis.

I found footnote 2 especially circular. Marc acknowledges IBM's complaint that
Linux files "identified in Column D" typically lack even version
information:

"However, the files referenced can be found, in most cases, in any version
of Linux issued after the disclosure."

Now I know you guys are going to worry that files with the same names might also
be found in older versions of Linux "in most cases". But remember,
IBM knows exactly _when_ they made the disclosures! So SCO is simply asking
them to confess when and what they did and make this trial run more smoothly.

-- hm


---
I tried carbon dating once, but it made me feel dirty.

[ Reply to This | # ]

The Redacted Marc Rochkind Declaration
Authored by: Anonymous on Thursday, April 20 2006 @ 05:23 PM EDT
As I read the many comments here, and having read the redacted declaration, what
I see as challenging is how IBM will write the opposition brief.

The challenge, as I see it, is not in opposing, but in how many ways this
declaration is wrong. AllParadox pointed out that your "experts"
shouldn't be allowed to practice law. And when they do, the result is telling.

So.. here we have a bunch of things about the declaraion...
1) forwards a legal opinion on which the expert is unqualified,
2) admits to publishing M&C in his own books, a) the contract stating that
M&C aren't in the protected realm,
b) any associated code that has been released by other parties is no longer
protectable
3) ignores the court order for format and specificity of the evidence
4) blatantly challenges the court on their order
5) claims to have done everything possible to be specific with the evidence (one
poster already debunked that on at least two counts)
6) apparently doesn't provide specific lineage for the common M&C he claims
to have found
7) has ignored specific contract language that obviates M&C as an offence to
the contract
8) bleats on about an item already agreed by both parties implied no
infringement by IBM,
9) ... what else?

So, IBM gets to reply, again with an expert declaration... to how many points?
What was that comment " It's so far wrong, it's not even wrong?"

So here, IBM is John Cleese and Marc Rochkind and SCO are the collective
"cheese shop." "So you're telling me you don't really have any
cheese!"

I expect the IBM response to be a piece of art.

...D

[ Reply to This | # ]

Simply Amazing
Authored by: GLJason on Thursday, April 20 2006 @ 05:27 PM EDT
That SCO has the gall to claim a "method or concept" as protected without even showing that it was given to IBM and governed by the contract is astounding. I hope Judge Wells can see through this. I would very much enjoy reading Dr. Davis's reply. They still seem to be interpreting the contract as protecting any "methods or concepts" that IBM adds itself to Dynix and AIX. I just don't see how the contract protects anything but methods and concepts enbodied in the product they are licensing...

SCO argues that source code isn't required, for example the method or concept could be explained in a book. I totally agree, but they should then have to show what book (including chapter and page) discloses the method and concept to IBM (and that it was covered by the contract) and what steps they took to protect it. If it's a publicly available book, they don't have a leg to stand on.

In the alternative, SCO should be limited to providing at trial only the materials they have submitted to IBM in order to identify the breaches. The judge should not allow them one more word on the subject since they should have provided it here. I would have a hard time as a jurist declaring that IBM misused a method or concept if SCO couldn't even show that they had given the method or concept to IBM as part of the contract.

[ Reply to This | # ]

The Catch in the Textbook
Authored by: dcs on Thursday, April 20 2006 @ 05:32 PM EDT
It's interesting that he mentions methods and concepts have been described in
textbooks without mention to source code. That's true.

Now, follow me for a second. If the IBM employee did not learn the method from
the source code, NOR FROM DOCUMENTATION PROVIDED WITH THE REST OF SYSV, how did
the employee learn it? ESP?

Yes, you can learn M&C from textbooks without source, but the TEXTBOOK is
there! So, there is still something to point to.

And he didn't point to anything. He said "here, this guy is talking about
something that is protected" (presumably because the guy said "Dynix
does this"), but he didn't provide any evidence that that something really
is protected. How can IBM prove it is not protected, be it even M&C, without
knowing where it came from?


---
Daniel C. Sobral

[ Reply to This | # ]

If SCOX was a car repair shop...
Authored by: Anonymous on Thursday, April 20 2006 @ 05:34 PM EDT
MECHANIC: Your car is all ready. Here's the bill.
CUSTOMER: FIVE BILLION DOLLARS?!?!
MECHANIC: Yeah, we had to do a lot of work on it.
CUSTOMER: What did you fix?
MECHANIC: An extensive overhual of the methods and concepts.
CUSTOMER: The what and the what?
MECHANIC: Methods and concepts. They were clearly broken, I mean, if you only
knew what I knew, WOW.
CUSTOMER: I don't get it. Are methods and concepts in the engine?
MECHANIC: Nope. They're all over the car.
CUSTOMER: So... you replaced the whole car?
MECHANIC: Nope. Just the methods and concepts.
CUSTOMER: So... can I have the old ones?
MECHANIC: Nope. You see, I can't physically hand you methods and concepts.
Heh. Just look at your car and you'll see.
CUSTOMER: What part should I look at?
MECHANIC: I can't point to one part and say this is where I fixed a method and
concept.
CUSTOMER: So how can I tell what you fixed?
MECHANIC: I already told you, just look at your car.
CUSTOMER: Um...
MECHANIC: Fine. Twist my arm. Walk all over me. I'll print a list of the
methods and concepts we fixed. Happy now?
CUSTOMER: Yes.

... prints invoice ...

MECHANIC: Here it is, all 294 methods and concepts we fixed today.
CUSTOMER: I see. That's a big list. Now let's start with number one.
MECHANIC: What's wrong with number one?
CUSTOMER: All it says is "VROOM VROOM noise".
MECHANIC: Yes, it didn't go "VROOM VROOM" before, now it does.
CUSTOMER: What did you do to make it go "VROOM VROOM"?
MECHANIC: Just look.
CUSTOMER: Look at what?!?!
MECHANIC: Your car.
CUSTOMER: What part of my car did you touch in order to make it go "VROOM
VROOM"?
MECHANIC: No single part. Just the car.
CUSTOMER: How can you touch the car without touching a part?
MECHANIC: Listen to me closely. Methonds and concepts.
CUSTOMER: Are you insane?

[ Reply to This | # ]

Required Specificity for Methods & Concepts
Authored by: Anonymous on Thursday, April 20 2006 @ 06:01 PM EDT
IANAL, but let me try some legal analysis anyway. Comments from real lawyers are welcome.

The specific question I want to look at is, "What is the equivalent of version, file, and line for a methods and concepts claim?"

1. The theory under which the claim is made cannot be copyright, since copyright protects only the expression of the idea, not the underlying idea itself.

2. The legal theory could be patents. In this case, naming the specific patent claims that have allegedly been infringed would provide sufficient specificity. However, SCO doesn't seem to have any relevant patents.

3. The remaining possibility is trade secret. In this case, SCO must show that the method or concept was disclosed to IBM under an explicit or implied requirement of confidentiality, and that IBM improperly disclosed it. I see three subcases:

(a) The method or concept was disclosed in the source code that IBM received. In this case, version, file, and line would seem to be the appropriate standard.

(b) The method or concept was disclosed in documentation accompanying the source code. Specificity would require naming the document and identifying the page and perhaps line.

(c) The method or concept was disclosed verbally, either as part of a presentation or in an informal meeting. SCO would need to prove that such a verbal disclosure took place, and would probably need to state the date, place, participants, and contents of the disclosures. Given the fact that such a disclosure would have likely taken place prior to (New) SCO's acquisition of any rights to Unix, it seems unlikely that SCO could meet the burden of specificity in this case. Given this uncertainty, SCO would probably also need to show that the alleged disclosure could not have been independently derived, and that it was never publically disclosed. Again, the burden seems hard to satisfy.

Now look at the Rochekind declaration. It does not claim that the burden of specificity has been met by some alternative means appropriate to methods and concepts. Not having seen the actual claims, I guess that this is because the claims do not actually provide adequate specificity, and thus that Judge Wells will grant the IBM motion.

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The submissions that contain the code in question
Authored by: Anonymous on Thursday, April 20 2006 @ 06:39 PM EDT
M.R. makes great hay out of the fact that some of the communications between IBM and the Linux developers contain code fagments in them, and asserts that that obviates the need to indicate line number etc. .

Big Deal! You have proof that IBM send code fragments to Linux developers! That says nothing about where the code came from. Just because the code is itself in the email doesn't mean that SCO doesn't need to show that it came from something that SCO purports to control.

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Just call me Biff
Authored by: Alan(UK) on Thursday, April 20 2006 @ 06:42 PM EDT
Everyone here (except Biff) believes that SCO has not got a case. May I be
permitted to play Devil's Advocate for a moment just to see if it is possible
that this is not true?

SCO has demanded money from various companies and individuals (including myself)
for permission to use their IP in binary form in Linux. If I am currently
infringing SCO's IP, this can only refer to copyrights.

As IBM must also be infringing these same copyrights, then it follows that any
case by SCO against IBM must include breach of copyright even if it includes
other matters as well.

Can copyright be infringed just by using similar concepts and methods? The
answer must be 'no' unless actual copying is involved.

I maintain that this is possible. Suppose the original software writer, instead
of just sitting at the keyboard and typing, actually planned what he was going
to do using a formal system such as JSP. He would list what was to be done,
arrange the tasks formally in a diagram, convert the chart to pseudo-code, only
then would he perform the trivial task of converting that to the language of
choice. Now, at what point did writer actually perform a creative act? As the
last stage could have been performed by a JSP pre-compliler, the answer must be,
'before that stage'.

Suppose then that IBM took the finished code and translated it into pseudo-code
thus allowing them to re-create a copy of the original authors diagram. This is
an infringemnt of copyright. It follows that any code produced from this
infringing work is itself infringing.

This argument also explains why my client needed so much documentation in
discovery to prove his case.

Your affectionate uncle

SCREWTAPE


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Qualifications
Authored by: overshoot on Thursday, April 20 2006 @ 06:53 PM EDT
PJ, I wouldn't be too tough on him as their resident expert.

Have a look at how far down the list they had to go. In contrast with:

  • Professor Brian Kernighan, PhD: one of the founding deities of Unix
  • Professor Randall Davis, PhD: the expert on code comparison and software copyright from the CS side
They present
  • A gent with an MSCS who wrote a book about Unix 20 years ago.

I'm sure he's a fine sort and undoubtedly knows Unix better than I (with my BSCS) do, but they're bringing a butter knife to a tank battle.

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So it's about Methods and Concepts (this week)
Authored by: Anonymous on Thursday, April 20 2006 @ 06:54 PM EDT
Doesn't look like IBM will have to do much work on their response.

"Your honor, here is a copy of the findings in 'Gates Rubber Co. v. Bando
Chem. Indus. Ltd' - the definitive statement that methods and concepts are not
copyrightable".

"Now, about those PSJs we'll shortly be resubmitting ..."

[ Reply to This | # ]

What ever happened to abstraction/filtration?
Authored by: Anonymous on Thursday, April 20 2006 @ 07:03 PM EDT
Maybe I'm a bit thick here, but don't I remember seeing a lot of talk about
abstraction/filtration tests on these pages around two years ago? What surprises
me about the Rochkind declaration is that he doesn't mention that at all. What
he is saying about methods and concepts is that they assume people had seen some
stuff somewhere and talked about putting it in Linux. Even if that were true
(and I don't know), wouldn't he also have to explain that he examined these
methods and concepts and applied abstraction and filtration to isolate those
bits that are not obvious or already in the public domain? Just because somebody
calls printf() to send "Hello World" to the console is not breaching
copyright. If someone sent an email to a guy saying, 'Hey, let's use printf() to
do this just like we did in Unix Sys V ver whatever' also wouldn't qualify. Am I
missing something?

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What does it take to "Identify Methods?"
Authored by: sk43 on Thursday, April 20 2006 @ 07:07 PM EDT
According to the Court Schedule, the parties are required to
Identify with Specificity All Allegedly Misused Material
Even if we ignore Judge Wells' orders, even if we ignore Randall Davis' declaration, even if we accept Stuart Singer's assertion that case law does not require source code for methods or concepts, even if we accept Marc Rochkind's statement:
"disclosures of methods and concepts neither require an accompanying disclosure of source code, nor is the method and concept defined or identified by source code."
could Marc or Stuart please explain why, in SCO's First Request for Production of Documents and First Set of Interrogatories (2003-06-24), pages 2-5, SCO itself states:
  • DEFINITIONS AND INSTRUCTIONS
  • ...
  • The term "identify" shall mean:
  • ...
  • e. in the case of alleged trade secrets or confidential or proprietary information, whether computer code, methods, or otherwise, to give a complete and detailed description of such trade secrets or confidential or proprietary information, including but not limited to an identification of the specific lines and portions of code claimed as trade secrets or confidential or proprietary information, and the location by module name, file name, sequence number or otherwise) of those lines of code within any larger software product or property.

[ Reply to This | # ]

Claims still not identified with specificity.
Authored by: Anonymous on Thursday, April 20 2006 @ 07:22 PM EDT
Let's assume for sake of argument that "methods and
concepts" claims actually had some kind of validity in
law. SCO still hasn't stated with specificity what
"methods and concepts" they claim they own, on what basis
they think they own them, or what specifically IBM is
supposed to have done that infringed on them.

After three years, there is still no indication what this
court case is actually about.

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request to pj
Authored by: Anonymous on Thursday, April 20 2006 @ 07:44 PM EDT
Since SCO has finally admitted its case is about it, how about a post on the
legal status of "methods and concepts"?

[ Reply to This | # ]

Defending the methods and concepts claim.
Authored by: Anonymous on Thursday, April 20 2006 @ 08:37 PM EDT
IBM already dealt with most of this declaration. I'm a little hazy on the
timing but I think it was before they even saw it.

Someone on the IBM side pointed out that a method or concept has to be embodied
some how. There must be code that demonstrates the method or concept. You have
to be able to describe the method or concept and show with specificity how it is
embodied in the code. "Because I say so" doesn't cut it even if
you're supposed to be an expert witness.

Does IBM get to cross-examine this guy? I'd hate to be him.

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Isn't Rochkind liable himself?
Authored by: Anonymous on Thursday, April 20 2006 @ 09:17 PM EDT
He claims to have written the definitive book on programming for Unix. He also
claims that you can expose methods and concepts without showing source code.

So, my question is, didn't Mr. Rochkind expose methods and concepts himself in
his books? Couldn't SCOG go after him?

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Another bit of wierdness: 247, 260, 265 + more
Authored by: Anonymous on Thursday, April 20 2006 @ 09:49 PM EDT
Look at his chart,

Column A is a disclosure

Column C is protected materials

Column D is code in Linux

Now according to Rochkind he doesn't really need to identify source code.

But for IBM to have allegedly done something wrong, even by his own loose
standards,

-- he would have to tick column A (improper disclosure)

-- or he would have to tick column C + D (allegedly protected code turning up in
Linux)



Let's take a look at some items

- Items 247, 260, 265 are ONLY in the Linux column D. If it's in Linux, and is
NOT linked back to any code that purports SCO owns or controls (column C), and
isn't linked to any disclosure by IBM (column A), then how can it's presence in
Linux being wrong? Why is SCO alleging it's improper?

- A whole bunch of items are only in Dynix or other allegedly protected
materials, column C, for example, 280, 281, 282, 289, 291, 292, 293. These
items aren't linked to any code in Linux (column D), or any disclosure by IBM
(column A). So what precisely has IBM done wrong on these? There doesn't seem
to be an any allegation of wrongdoing here either.


Even by Mr Rochkind's own standards, his chart expressly includes quite a number
of items, where there doesn't appear to be alleging any wrong doing by IBM.


Quatermass
IANAL IMHO etc

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The Irony
Authored by: Anonymous on Thursday, April 20 2006 @ 10:18 PM EDT
The irony is that Mark R. the implementor of SCCS, can't find the lines of code
for the methods and concepts. If anything, SCCS or a similar system should be
able trace the history of the implementation of M&C.

Another point: Is there anything in his qualifications that he does kernel
programming? Writing about Unix system calls is quite different from actual
kernel programming. What qualifies him to be the expert witness on M&C?

[ Reply to This | # ]

To provide the 'claims'
Authored by: Pugs on Thursday, April 20 2006 @ 11:11 PM EDT
To provide the 'claims' Marc has made, wouldn't he have had to find the M&C
in the code to know it is there? If he found it in the code, why didn't he list
file and line(s) of where he found it? If he knew it came out of Dynix, or AIX
or whatever, he would have had to have found it there too, so why didn't he
provide the file and line(s) of where it came from.

The only way to know it is really there is to have seen. If it has been seen by
him to make this declaration, then there isn't any reason why he didn't list
where he saw it and where it is from. Otherwise, he is just guessing.

I don't think M&C has any place in this case, but if SCOG are going down
that path, there still isn't a good excuse for not providing the specificity as
the court has ordered.

Pugs


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SCO's viral IP theory
Authored by: Jude on Thursday, April 20 2006 @ 11:48 PM EDT
IANAL, but AFAICT SCO is using a combination of 2.01 and 7.06 from the original
SOFT-00015 as the basis of their claims.

2.01 includes the words "Such right to use includes the right to modify
such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE
PRODUCT, provided the resulting materials are threated hereinunder as part of
the SOFTWARE PRODUCT".

7.06 is the "shall hold all parts of the SOFTWARE PRODUCT in
confidence..." bit.

On the surface, it might appear to be a good argument, but I think SCO will have
problems trying to apply it to all of the items that have in their list.

The place I think they have trouble is when something becomes a derivative work
by the addition of something from Unix. For example, suppose I invented a new
kind of filesystem. I'd have to add some Unixy parts to make the code work in
Unix, and I'd have no problem admitting that my filesystem code WITH the Unixy
parts was a derivative work of Unix.

The legal question is whether the rest of my code has become a derivative, so
that it is still a derivative even when it appears in a form that does not have
the Unixy parts. I think that's going to be a tough row to hoe for SCO.

I think methods and concepts will be even tougher. SCO has to convice the court
that the methods and concepts behind the code I wrote ALSO became part of the
SOFTARE PRODUCT the moment I added the Unixy parts to the code.

[ Reply to This | # ]

Line citations still required
Authored by: Anonymous on Thursday, April 20 2006 @ 11:58 PM EDT
Even with SCO's blood out of rocks attempt to get the right to claim copying of
methods and concepts they must still show the method existed in both the source
and the destination. This is done by identifying the code that expresses the
concept.

So the Dynix people talked about methods and concepts. This is grounds for an
investigation and possible cause to go to discovery.

What discovery should show is that a concept expressed as a function and file
and line numbers in one code set was also expressed in a different code set at
specific function, file and line numbers. To show copying you must show more
than intent or method SCO needs and was required by the judge to show specific
file and line numbers in both a source and destination for the alleged
infringement. The concept must be evident and identifiable in the source and
destination.

Even then independent development or other rights might allow the copying. But
those rights can only be argued once the "method" has been identified
this includes its expression in the source and in the destination. As IBM argues
SCO has failed to identify the code in question in a source and at its
destination. Both a source and destination are required to show copying.

Methods are implemented in code. At one point the code will not contain the
method. Then code will be added that implements the method. This can be seen by
observing the code changes in a CM system. And this allows the identification of
file versions and line numbers for the code that implemented the method. Clearly
SCO failed to use the CMVS system provided by IBM at great expense to produce
the required specifics.

Oh and SCO's whole concepts and methods thing ain't gonna fly at all. But this
is arguing with the quality of their claimed evidence.

[ Reply to This | # ]

Revised table of all 294 alleged violations
Authored by: Anonymous on Friday, April 21 2006 @ 12:01 AM EDT

The table I prepared tracking the status of the alleged violations has now been updated to include material from Rochkind's Appendix B.

Here ya go!

Interesting to see a few odd discrepancies between IBM and SCO over which items really have Linux files identified (eg, 9, 11, 64...) Note that Rochkind states Item 204 is still alive.

Also the table shows Quatermass's wierdnesses up very nicely. (IYSWIM)

-- Old Nob

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Rochkind Buys a Watch
Authored by: Anonymous on Friday, April 21 2006 @ 12:43 AM EDT
This is semi-OT, but here's Mark Rochkind's account about buying himself a $20,000 watch for his 50th birthday.

I say *semi* OT because the article gives a great deal of insight into just what sort of guy we're dealing with here, and what his motives might be. Namely: He treasures the finer things in life. The finer things cost lots of money. SCO offered him lots of money. QED.

[ Reply to This | # ]

What about self-incrimination?
Authored by: Walter Dnes on Friday, April 21 2006 @ 01:28 AM EDT
Attempting to follow SCOX's so-called "logic" leads to some crazy
twists and turns. SCOX claims that they don't have to specifically tell IBM *OR
THE COURT* where some violations are, because "IBM should know". And
therefore IBM should have to identify the alleged violation *TO THE COURT* and
defend itself against the alleged violation.

IANAL (I Am Not A Lawyer) and INAA (I Am Not An American), so I may be out to
lunch here, but doesn't this cross the line of self-incrimination? IBM can be
required to answer questions and provide evidence/testimony under subpeona. But
this goes way beyond that, and asks IBM to make allegations against itself, so
it can defend against them.

[ Reply to This | # ]

Barometer
Authored by: Anonymous on Friday, April 21 2006 @ 03:24 AM EDT
What will be the wheather on Sunday ?
Claudy.
How did you forecast it
With a barometer.
Stop, This is my own method and concept to forecast
You're stealing my very own intellectual property

[ Reply to This | # ]

The Redacted Marc Rochkind Declaration
Authored by: Anonymous on Friday, April 21 2006 @ 05:06 AM EDT
Since SCO was ordered to identify the origin of misused material with
specificity, perhaps IBM could suggest that SCO clarify the situation by making
an affidavit stating that:
* where SCO has not specified where in SysV the allegedly misused material comes
from, it does not exist in SysV
* where SCO has not specified where in AIX/Dynix the material come from, it does
not exist in AIX/Dynix
* where SCO has not specified where in Linux the material has been placed, it
was never incorporated into Linux

After all, they wouldn't want to violate a court order...

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A rope with one end
Authored by: grouch on Friday, April 21 2006 @ 06:36 AM EDT
I'm certain that anything I have to say has already been more eloquently stated elsewhere in the comments, but I can't resist.

SCOG and expert appear to have attempted to tie a leash to Linux but haven't tied the other end to anything.

As mentioned before, methods and concepts do not exist in air; they must reside in the source code to be protectable. The expert dismisses the notion that he must identify the source from which these methods and concepts spring.

If SCOG is going to tie IBM or Tux to some stake in what they claim is their property, they need to identify the stake and the property. Where is the stake planted in source code that SCOG claims?

If SCOG is going to tie IBM or Linux to this undisclosed stake in property they haven't proven is theirs, they need to show the rope leading from that stake to Linux. The expert laid out some strands that seem to begin at IBM but then just frazzle out in various directions. Where is the unbroken rope that leads from the undisclosed stake in SCOG (alleged) property through IBM?

If SCOG is going to tie IBM or Tux to this undisclosed stake in property they haven't proven is theirs, with a rope through IBM's owned or leased properties, they need to show where in Linux the rope is tied. The expert and SCOG's disclosure do a lot of talking about lots of Linux, but where is the collar attached to the rope?

  1. They do not show a stake in the property they claim. If they own or control some methods and concepts, where is it? You can't tie a rope to imagination. Show me the code.

  2. They do not show a rope leading from some stake in property they claim through IBM. Where is the code that is under IBM's control that is also tied to the stake that SCOG does not show that is planted in property that SCOG claims to control?

  3. They claim a collar around Tux's neck, but do not show it tied to the rope they do not show going through property controlled by IBM that is tied to the stake they do not show in property they claim to control.

I'm glad I never purchased one of the books by the expert. Anyone who claims that methods and concepts employed by an operating system do not need to be identified by the source code of that operating system is seriously deficient in expertise. A method cannot be implemented on a computer without source code. Duh. You can dream up all kinds of concepts for an operating system, but until you implement them in source code, they don't operate. Duh.

SCOG and expert point to parts of Linux and claim those are a collar. It's a rope with only that end. This is not possible in this universe. The mantra remains as it was back in 2003: Show me the code.

---
-- grouch

http://edge-op.org/links1.html

[ Reply to This | # ]

What 'X' in Column C really means
Authored by: Anonymous on Friday, April 21 2006 @ 08:47 AM EDT
Rochkind's Column C uses the word 'Link' in the column header. Note that this
does NOT mean the disclosure specifies a URL. It doesn't!

On page 5 of his declaration, Rochkind explains: "the disclosure does not
reference specific code, but contains in the face of the communication an
admission or other statement that directly links the method and concept as
coming from protected material such as System V, or a derivative such as AIX or
Dynix/ptx. (See Column C.)" In other words, Rochkind's Column C is his
Methods And Concepts Smoking Gun Email Column.

Note how weak is the bar for admission to Column C. No specific code. Even
then, there are plenty of holes towards the end. No doubt these will eventually
be spun as sneakiness by the contributor.

If there's a URL that *does* refer to source code, Rochkind puts an X in Column
*B*. The Column B header makes this clear: "Source Code Identified in
Disclosure, Referenced Document, URL, or Related Item". Note how sparse
Column B is.

-- Old Nob

[ Reply to This | # ]

Methods and Concepts - copyright vs. patents.
Authored by: Anonymous on Friday, April 21 2006 @ 09:01 AM EDT

Can anybody tell me why methods and concepts should be covered by copyright? I always thought that copyright covers expression of ideas, while methods and concepts are the domain of patent law.

Ok, there's plagiarism in literature, but in program code, there is a lot less freedom - a journaling filesystem has got some methods and concepts built in... So if anything, oldSCO/AT&T/whoever should've bought some patents and sued over those.

obStupidForumSoftware: I'd appreciate email cc:s of answers; avbidder -at- fortytwo.ch

[ Reply to This | # ]

The Thermodynamic Boundary
Authored by: DaveJakeman on Monday, April 24 2006 @ 06:52 AM EDT
Anyone that has studied Thermodynamics will be familiar with the
"thermodynamic boundary" method of solving a problem. This
essentially comprises drawing an imaginary box around a component in part of a
complex system. In addressing what happens thermodynamically to that component,
it becomes unnecessary to consider the huge complexities of what happens within
the compent itself, but only the thermodynamic flows (inputs and outputs)
crossing the boundary, assuming steady-state conditions and conservation of
energy.

Rochkind has drawn his thermodynamic boundary around IBM, or a group of people
he implicates as being IBM. He's saying that because such-and-such a method and
concept crossed that boundary (IBM output) the inappropriate
disclosure-into-Linux took place. That doesn't prove the disclosure wound up in
Linux at all. Nor that it was inappropriate.

Actually, the "thermodynamic boundary" method of validating the
evidence is inapplicable. No matter where you draw the box, it's a useless
approach. This is not thermodynamics; it's litigation. You have to prove
conclusively the full, specific history of the disclosure from source point in
IBM to destination in Linux, including all steps in between, before you have
evidence of a disclosure. And such "evidence" only then acts as a
starting point to the possibility that something inappropriate might have
happened along the way and isn't trumped by something else - like a contract,
for example.

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

[ Reply to This | # ]

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