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Methods, Concepts and a Demand for Specificity - Updated 2Xs
Saturday, April 22 2006 @ 04:06 PM EDT

SCO's expert Marc Rochkind, in his Declaration, has told the judge that with methods and concepts, it's not necessary or usual to be specific about lines and versions:
10. Contrary to disclosures of source code, 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. Many textbooks on computer programming discuss methods and concepts without providing accompanying source code for actual systems. I strongly disagree with the premise of Professor Davis that version, file, and line of source code must be provided to identify a method and concept, and to prepare a defense to an allegation of misuse.

SCO's attorney Stuart Singer also told the court at the hearing on April 14th, according to our eyewitness' report, that with methods and concepts, code is not required to be specified:

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 releated to code, they have been identified. He said the contracts between SCO(sic) and IBM required it to keep methods and concepts confidential.

Oh? Is that so? Then I'd say SCO has some 'splainin' to do, as they say. Groklaw member sk43 noticed that when it was SCO looking for discovery, when it came to methods and concepts, SCO in fact required detailed specificity from IBM.

As you can see in SCO's very First Request for Production of Documents [PDF], which you can find on Groklaw's Legal Docs with Exhibits page, document 45-J, a Groklaw page which was born for a moment like this, SCO demanded specificity:

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.

Pray tell, friends. Thinkest thou that SCO speaketh with forked tongue on the subject of identifying methods and concepts by line and file? When they wanted discovery, methods had to be identified with specificity, by "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." But when it's IBM asking for specificity, just naming a method is good enough for them. Let them go figure it out on their own. It's in some unspecified version of Linux. Puh-lease.

Well, what's good for the goose is good for the gander. And I suspect SCO just lost that argument. Thank you sk43, for doing that research. That definition of "identify" is on page 5 of the document. Hark! Is that the sound of SCO grinding its teeth? What else doesn't its expert get right? Stay tuned.

You know what? All the tedious hours I've spent compiling the Legal Docs with Exhibits page so we'd have a permanent record to use for research just got worth it. Shame on you, SCO, for trying to get the court to go along with a phony double standard. And no wonder SCO hates Groklaw.

UPDATE:

There's more. IBM in its 2003 Memorandum in Support of Motion to Compel Discovery (PDF), its very first motion to compel, asked for the following specificity:

Rather than identify the files and lines of code that IBM has allegedly misappropriated, SCO has obfuscated its claims to foster fear, uncertainty and doubt about its rights and tbe rights of others. (3) In letters dated April 2, 2003, and May 5, 2003 (appended hereto as Exhibits A and B), IBM expressly asked SCO to advise IBM as to what SCO contends IBM has done in violation of any of its agreements, and what SCO contends IBM should do to cure such violations. That is, we have asked SCO to tell us which files and lines of source code IBM is supposed to have misused or misappropriated. SCO has consistently refused to do so. Rather, SCO's counsel has indicated, in an interview with Maureen O'Gara of LinuxGram, that it "doesn't want IBM to know what they [SCO's substantive claims] are." (A copy of this article is appended hereto as Exhibit C.)

Therefore, on June 13, 2003, IBM served its First Set of Interrogatories and First Request for Production of Documents on SCO (appended hereto as Exhibit D). These requests seek basic information about the trade secrets at issue in this case. IBM's interrogatories ask SCO, among other things, to:

"identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused" (IBM's Interrog. No. 1);

for each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, to "describe, in detail, each instance in which plaintiff alleges or contends that IBM misappropriated or misused the alleged trade secret or confidential or proprietary information" (IBM's Interrog. No. 4); and

for each line of source or object code and each method identified in response to Interrogatory No. 1, to "identify: (a) the origin of the code or method, including when, where and by whom the code or method was created; and (b) all products in which, in whole or in part, the code or method is included or on which, in whole or in part, the code or method is based" (IBM's Interrog. No. 6).

IBM propounded these interrogatories because the defendant to a claim for misappropriation of trade secrets is entitled to precise and particularized information identifying the claimed trade secrets at the outset of litigation.

IBM won that motion. Here's the docket entry:

94 - Filed & Entered: 12/12/2003

Order

Docket Text: Order granting [68-1] motion to compel discovery, granting [44-1] motion to compel Discovery. The SCO Group is hereby ORDERED: 1) To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM's First Set of Interrogatories. 2) To respond fully and in detail to Interrogatory Nos 12 and 13 as stated in IBM's Second Set of Interrogatories. 3) IBM is to provide SCO a list of requested documents as stated in IBM's First and Second Requests for the Production of Documents and SCO is to produce all requested documents. 4) To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM. This is to include identification of all Bates numbered documents previously provided. 5) To the extent IBM's requests call for the production of documents or are met by documents SCO has already provided, SCO is to identify with specificity the location of responsive answers including identification of the Bates numbered documents previously provided if applicable. 6) If SCO does not have sufficient information in its possession, custody, or control to specifically answer any of IBM's requests that are the subject of this order, SCO shall provide an affidavit setting forth the full nature of its efforts, by whom they were taken, what further efforts it intends to utilize in order to comply, and the expected date of compliance. SCO is required to provide such answers and documents within thirty days from the date of this order. All other discovery, including SCO's Motion to Compel is hereby STAYED until this Court determines that SCO has fully complied with this Order. The Court will hold a hearing on the forgoing issues January 23, 2004 at 10:00 a.m. Signed by Judge Brooke C. Wells , 12/12/03 cc:atty (blk)

Here's the Order by Judge Brooke Wells, dated December, 2003. So when SCO attorney reportedly told the judge at the hearing that "they've complied where appropriate, that there has not been a requirement for SCO to identify files and lines for methods and concepts," was that true? And what were Interrogatory Nos. 1-9? Here you go, Exhibit D attached to IBM's Motion to Compel:

Interrogatories

INTERROGATORY NO. 1:

Please identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in ¶ 105 of the Complaint.

INTERROGATORY NO. 2:

For each alleged trade secret or any confidential or proprietary information identified in response to Interrogatory No.1, please identify: (a) all persons who have or have had rights to the alleged trade secret or confidential or proprietary information; (b) the nature and source of the rights; and (c) all efforts by any person to maintain the secrecy or confidentiality of the alleged trade secrets and any confidential or proprietary information.

INTERROGATORY NO. 3:

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No, 1, please identify all persons to whom the alleged trade secret or confidential or proprietary information is known or has been disclosed and describe, in detail, the circumstances under which it became known or was disclosed, including but not limited to: (a) the date on which the alleged trade secret or confidential or proprietary, information was disclosed or became known to such persons; (b) the specific terms on which the information was disclosed or became known, such as pursuant to a confidentiality agreement; (c) all documents or agreements relating to the disclosure; and (d) all places or locations where the alleged trade secret or confidential or proprietary information may be found or accessed.

INTERROGATORY NO. 4:

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No.1, please describe, in detail, each instance in which plaintiff alleges or contends that IBM misappropriated or misused the alleged trade secret or confidential or proprietary information, including but not limited to: (a) the date of the alleged misuse or misappropriation; (b) all persons involved in any way in the alleged misuse or misappropriation; (c) the specific manner in which IBM is alleged to have engaged in misuse or misappropriation; and (d) with respect to any code or method plaintiff alleges or contends that IBM misappropriated or misused, the location of each portion of such code or method in any product, such as AIX, in Linux, in open source, or in the public domain.

INTERROGATORY NO. 5:

For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No.1, please identify: (a) all agreements relating to the alleged trade secret or confidential or proprietary information including but not limited to the parties to and the terms of the agreements; and (b) all copyrights and patents relating to the alleged trade secret or confidential or proprietary information including but not limited to the owners, licensors, licensees, assignors or assignees of those copyrights or patents.

INTERROGATORY NO. 6:

For each line of source or object code and each method identified in response to Interrogatory No.1, please identify; (a) the origin of the code or method, including when, where and by whom the code or method was created; and (b) all products in which, in whole or in part, the code or method is included or on which, in whole or in part, the code or method is based.

INTERROGATORY NO. 7:

Please describe, in detail, each instance in which plaintiff alleges that IBM engaged in unfair competition, including but not limited to: (a) the dates on which IBM allegedly engaged in any unfair competition; (b) all persons involved in the alleged unfair competition; and (c) the specific manner in which IBM is alleged to have engaged in unfair competition including but not limited to as alleged in ¶ 118 of the Complaint.

INTERROGATORY NO. 8:

Please identify all agreements with which plaintiff alleges IBM interfered and describe, in detail, each instance in which plaintiff alleges or contends that IBM interfered with those agreements, including but not limited to; (a) the date of the alleged interference; (b) all persons involved in the alleged interference; (c) the specific manner in which IBM is alleged to have interfered with the agreement; (d) the specific actions, if any, that IBM induced or encouraged plaintiff's customers or licensees to take; (e) the specific action, if any, that plaintiff's customer or licensee took as a result of the actions allegedly induced or encouraged by IBM; and (f) the specific trade secret or confidential or proprietary information, if any, involved in the alleged interference.

INTERROGATORY NO. 9:

Please identify all agreements that plaintiff alleges or contends that IBM has breached, including the specific provisions or portions of those agreements that plaintiff alleges or contends that IBM breached, and describe, in detail, each instance in which plaintiff alleges or contends that IBM breached those agreements, including but not limited to; (a) the date of the alleged breach; (b) all persons involved in the alleged breach; and (c) the specific manner in which IBM is alleged to have breached the agreement.

And by the way, the same document has the following section under definitions:

10. 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.

So, when Judge Wells granted IBM's motion, her order included all of the above. SCO was ordered to provide specific code for methods and concepts, not just for infringed code. That's why I wrote earlier that when SCO's expert Marc Rochkind told the court that he disagreed with IBM's expert, Randall Davis, in reality he was disagreeing with the Judge's order.

2d UPDATE:

In SCO's Supplemental Answers to IBM's First Set of Interrogatories, SCO supplied a list of files it claimed were in answer to IBM's Interrogatory No. 1, but it stated that not all of the code in the listed files entailed protected methods and concepts. Hence, they claimed, they needed further discovery in order to fully answer the interrogatory with specificity:

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 1:

In addition to the General Objections set forth in Plaintiff's Responses, SCO notes that it still has not received responsive discovery from IBM that would allow it to fully answer this question because part of this information is peculiarly within the knowledge of IBM. Subject to and without waiving these objections, Plaintiff supplements and revises its response to this Interrogatory No. 1 and states that the information IBM (and separately, Sequent) agreed to maintain as confidential or proprietary for SCO and/or trade secrets includes, without limitation, UNIX software design methods for creation and modification of software based on UNIX System V, including those developed in AIX and Dynix. These UNIX methods include ways to modify IBM's version of UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx. The UNIX methods include those inherent in and learned through access to the System V source code licensed to IBM and/or Sequent and those developed by IBM and/or Sequent in creating derivative works and modifications based on UNIX System V pursuant to licensing agreements with SCO's predecessors and SCO and those that IBM and/or Sequent agreed to maintain in confidence for SCO's predecessors and SCO, in addition to UnixWare code and methods provided to IBM separately. Without limitation, the methods include technical UNIX categories, such as multiprocessor locking and unlocking methods, methods for avoiding locking requirements, methods for implementing filing systems, de-bugging methods, methods for implementing and improving processor scalability, methods for implementing and improving processor reliability, methods for implementing and improving processor accessibility, methods for implementing and improving scheduling systems, methods for implementating and improving memory management, methods for implementing and improving threading and multi-threading, and methods for implementing and improving general system functionality based on UNIX technology....

SCO does not contend that the entire source code in all files identified above contains proprietary and confidential information and/or trade secrets. Rather, information (including code and methods) that IBM agreed to maintain as confidential is interspersed through parts of each identified file. Discovery is required to identify the ways and extent to which IBM improperly used confidential and proprietary information and/or trade secrets in creating the source code that is contained in each of the above files.

Of course, this was way back in November of 2003, when SCO was still alleging trade secrets violations, a claim they dropped when they realized there aren't any left in Unix System V. But at least some of the claims for confidentiality, principally regarding Dynix, seem to still be on the list, from all we can discern. But what stands out is that SCO asked for discovery precisely to be able to make a list of exactly which parts of the code in the files entailed protected methods and concepts and which did not, since not all of the code in each file listed involved violations, even in their world view, of "protected" methods and concepts. So now that discovery is over, where is that detailed list? How can their expert now claim that with methods and concepts, just telling what the technology is would be sufficient and no specific code needs to be provided?

If we pretend we don't know that the IBM contract was amended to clarify that IBM could use methods and concepts, that still leaves SCO telling the court that they needed discovery to be able to answer Interrogatory No. 1, which asked for specificity. They got the discovery. Now their expert is claiming that specificity isn't required for methods and concepts. So was SCO telling the truth back in November of 2003? Or is it telling the truth now? You do kind of have to pick one or the other, don't you?


  


Methods, Concepts and a Demand for Specificity - Updated 2Xs | 642 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here
Authored by: PolR on Saturday, April 22 2006 @ 04:36 PM EDT
With clicky links please

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity
Authored by: Anonymous on Saturday, April 22 2006 @ 04:37 PM EDT
Bravo !!

This is what's called educating SCO on how collaborative communities work!

- Gosev

[ Reply to This | # ]

Corrections here
Authored by: PolR on Saturday, April 22 2006 @ 04:37 PM EDT
if any is needed.

[ Reply to This | # ]

Double standards
Authored by: PolR on Saturday, April 22 2006 @ 04:53 PM EDT
I can see why SCOG uses a double standard. What I don't see is why it should
matter. Isn't there somewhere "The" standard? Isn't there a
fundamental truth that goes beyond the "I said, he said" kind of
argumentation? Once the fundamental truth is known, lies and double standards
just get ignored.

IANAL so it is probably just me not knowing how the law works. But I would
appreciate if someone in the know explains to us.

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity
Authored by: Khym Chanur on Saturday, April 22 2006 @ 04:55 PM EDT
IBM already knows what they're guilty of! Why should SCO be bothered to tell
them?

---
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, Concepts and a Demand for Specificity
Authored by: ExcludedMiddle on Saturday, April 22 2006 @ 05:01 PM EDT
An excellent catch! I assume that IBM's attorneys read this site? At least, I
would hope that their paras do, and alert the lawyers to helpful items like
this. I would assume this to be priceless material for the expert reply brief.

This is such a long-running case, it sounds like research of THIS CASE ITSELF
can yield interesting material. I'll bet there are other interesting tidbits in
the early hearing transcripts as well.

[ Reply to This | # ]

Can IBM mention this?
Authored by: Anonymous on Saturday, April 22 2006 @ 05:01 PM EDT
Even if IBM had glossed over this, raising that issue now would be raising a new
argument, no? If they pointed this out now at this point, couldn't SCO argue
they get another reply?

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity
Authored by: Nick_UK on Saturday, April 22 2006 @ 05:11 PM EDT
I think this is almost the perfect example of the
saying 'a good liar needs a good memory'.

Looks like SCO are tying themselves up in so many knots
trying to get out the hole they have dug.

As once (and often) commented here, IBM have let them have
the rope to hang themselves by - and by golly have they.

Nick

[ Reply to This | # ]

Just how do methods and concepts differ from trade secrets?
Authored by: Anonymous on Saturday, April 22 2006 @ 05:11 PM EDT
If I know the basic principle of how Unix does something, that gives me a
tremendous advantage when I start to write code for something that works like
Unix.

If I want to keep someone from developing a product that competes with mine, I
will keep my methods and concepts as a trade secret.

The only reason to forbid the disclosure of methods and concepts is because they
are trade secrets.

Guess what folks; SCO has admitted that there are no trade secrets.

(This is a repost from the previous story but nobody answered it and I am
curious.)

[ Reply to This | # ]

No Mr. Rochkind:
Authored by: bigbert on Saturday, April 22 2006 @ 05:26 PM EDT
"I strongly disagree with the premise of Professor Davis that version,
file, and line of source code must be provided to identify a method and
concept..."

N, Mr Rochkind, it is not Professor Davis you disagree with. It was an order of
the Court. Sorry, but you don't get to disagree with a court's order. You have
basically destroyed your own evidence, sir.

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

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity
Authored by: Anonymous on Saturday, April 22 2006 @ 05:29 PM EDT
Since SCO has stated they don't need to specify code, then all the code should
be barred by Judge Wells from use as evidence.

This would then set up SCO for sanctions since they argued so vehemently for
all of IBM's code. This should also set up SCO easily for summary judgment
on copyrights since SCO has no code to point to.

On the matter of methods and concepts, which methods and concepts did
their so-called expert name?

Even if SCO specified no code, they should have at least specified which
method and which concept. They then have to specify if the method or
concept is in the public domain or has already been divulged to the public in
any of the numerous Unix textbooks - such as in their expert's own books -
and so is no longer a secret.

If they specified which method and which concept, then at least we and IBM
can check the validity of the method or concept.

If SCO has not specified the specific method or concept, then they should be
in trouble again with Judge Wells for not being specific enough. In which
case, Judge Wells can also throw out SCO's so-called evidence.

[ Reply to This | # ]

Lost Evidence?
Authored by: Saturn on Saturday, April 22 2006 @ 05:36 PM EDT
What happened to the evidence Darl claimed to have showing millions of lines of code that were copied literally from Unix, and all of which were at one point held in a vast SUPERSIZE German suitcase?

Or has that now been lost?

How do you lose a SUPERSIZE suitcase with critical evidence for a billion dollar law suit?

Personally, I'd like to see that question answered by SCO before anyone starts quibbling of the definition of 'identify'.

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

[ Reply to This | # ]

Methods, Concepts and Rochkind's 10
Authored by: rsteinmetz70112 on Saturday, April 22 2006 @ 05:41 PM EDT
Mr. Rochkind is absolutely correct I can identify a concept without any source
code attached to it, I can even describe it.

What I can't to is tell where it originated, who developed it or whether SCOG
has any rights to it.

This is an interesting piece of logic and entirely overlooks the purpose for all
of this, which is to tell IBM what they are supposed to have done wrong.

---
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 | # ]

What happens when your expert is discredited?
Authored by: Latesigner on Saturday, April 22 2006 @ 06:04 PM EDT
I'm thinking Marc Rochkind's credibility just took another big hit.
I don't understand why the SCO legal team set him up to play lawyer but with
this added they really make him look like a ventriloquist's dummy.
Now what?
They've just thoroughly undercut the only "expert" they had.
Didn't they remember what they'd done?
We noticed and if, by some remote chance, IBM missed this they know it now.

---
The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

Methods, Concepts requires source code and specific lines
Authored by: Fredric on Saturday, April 22 2006 @ 06:18 PM EDT
I am confused here. How could anybody assume that if the case is about methods and concepts then it is not about source code.

Methods and concepts are all very fine but unless implemented in source by IBM SCO have no case at all. SCO must say this method and/or concept is "ours" and IBM used in the this part of the system and there is the source and lines.

Even if they should claim something silly as the concept of a "file system" or "device drivers" there is code that implement it (of course, in this case there is also documentation).

And on the flip side of the coin:
We know we have not seen any code (apart from SCO early attempt to convince the media with bogus claims) but we have not seen and "methods and concepts" either. There has been no demand for it since we all beleive that SCOs claims as such are wrong but I think it would be interesting to see what "methods and concepts" they claim. The only "method and concept" I recall are some error codes that they claimed Linus had unlawfully copied.

---
/Fredric Fredricson
--------
My computer goes: Wireless network is not connected!
And I go: And....?

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity
Authored by: Anonymous on Saturday, April 22 2006 @ 06:23 PM EDT
Man, if SCO spent a tenth of the money they are literally wasting with these
lawyers and attorneys in making a better OS or even contributing to Linux they
wouldn't be doing so bad right now.

Sorry for their shareholders, but these guys really don't seem to know what they
are doing. And as a man who is not able to swim, the more they move the more
they go down...

[ Reply to This | # ]

Deliberate Hiding by SCO
Authored by: urzumph on Saturday, April 22 2006 @ 06:23 PM EDT
After reading this, it made me curious enough to look back and compare the
Rochkind Chart with the Davis Chart. When you compare the two, it really looks
like SCO are trying to hide something. According to the Rochkind Chart, almost
every item has a 'link' to protected materials, and yet according to the Davis
Chart, almost none of them have Version/File/Line information for any protected
materials, even the ones that supposedly contain source code. Realistically I
don't think there is any way to interpret this other than deliberately being
difficult - with the System V source plus the AIX and Dynix CMVC, finding a
piece of literal code should be extreemely simple, and SCO would likely have to
do it to use at trial anyway.

[ Reply to This | # ]

IBM's first discovery request
Authored by: Anonymous on Saturday, April 22 2006 @ 06:24 PM EDT
At Groklaw's Legal Docs with Exhibits 45, Ex D IBM defines what it is asking
for. See Definition 8 where it asks for the identity of information and asks
for the concept and methodology along with the code. In Definition 10 IBM asks
for SCO to descrbe and tell the location of computer code or methods which are
violative SCO's rights. And the Judge later ordered SCO to disclose this stuff.
So IBM asked in 2003 amd SCO says now that it doesn't have to tell. I don't
think so.

[ Reply to This | # ]

Hoist by their own petard!
Authored by: SilverWave on Saturday, April 22 2006 @ 06:25 PM EDT
Class!

Spot on sk43 good work :)

---
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 | # ]

Methods, Concepts - Illusory Consideration, No Damages?
Authored by: Anonymous on Saturday, April 22 2006 @ 06:45 PM EDT
The No Code Methods and Concepts strategy might have a couple fatal flaws. Maybe
a lawyer type can weigh in on this extreme example:

Lets say IBM and SCO agree in writing that IBM will not disclose the method and
concept to determine if today the sky is blue. Lets say IBM is paid
consideration for this so it is legally binding.

Note that no code is involved.

But one day an IBM cube bound employee gets a phone call from some customer and
is asked if the sky is blue. Instead of going outside and looking (the method)
and reporting back simply 'yes' or 'no'; the employee slips up and says 'Go
outside and look for yourself.' Zounds, the concept and method has been
disclosed.

But here is the rub. Everybody ALREADY knows the method and concept of how to
determine if the sky is blue without IBM disclosing it. In absolute fact, IBM
need not disclose the method and concept at all -- it is already universally
known, thus sabotaging all benefit accruing to SCO.

There are two interesting aspects:

1. I wonder if the contract is void in part at least, because the consideration
(IBM's promise not to disclose) is "illusory," Their silence is
meaningless -- it is not 'real' consideration since the method and concept is
already universally known.

2. And I wonder if SCO has a problem with damages because there is no benefit to
be received by SCO from IBM's silence on the method and concept that is already
universally known.

On the other hand, if specific lines of code were involved the disclosure would
have tangible value.

Inquiring minds want to know....

[ Reply to This | # ]

O frabjous day! Callooh! Callay!'
Authored by: hardcode57 on Saturday, April 22 2006 @ 07:50 PM EDT
He chortled in his joy.

:-)

[ Reply to This | # ]

farhill, another Groklaw member
Authored by: hardmath on Saturday, April 22 2006 @ 08:14 PM EDT

A similar point was made by farhill in a recent thread. SCO's Reply Memorandum Regarding Discovery, filed July 12, 2004, stresses the importance to their claims on "methods and concepts" of having "the source code of the multiple versions of the AIX and Dynix computer operating systems and related documents":

IBM has incorrectly resisted producing earlier versions of AIX and Dynix/ptx on the stated ground that SCO need only compare UNIX System V code to Linux code and, therefore, these two sources of code are everything SCO needs to support its claims. But IBM's argument overlooks the pivotal point that the heart of SCO's complaint — the contract claims — requires no proof of any copying from UNIX System V to Linux. Rather, while IBM focuses on copyright law, the license agreements at issue here expressly provided greater protections, ensuring that any subsequent derivatives of UNIX System V derivatives and/or any "methods or concepts" contained in UNIX System V or any such derivatives receive the same protection under the license agreements as the original licensed System V product. Thus, the license agreements, on their face, clearly provide SCO with far greater protection than the copyright law affords; indeed, the agreements' language would have been surplusage if they had mirrored the copyright protections already provided by operation of law. [emphasis added]

Others, including PJ, have pointed out that SCO's discovery request for access to CMVC, IBM's source versioning repository for AIX, argues the importance of those "multiple versions" for establishing SCO's claims of "literal or non-literal copying".

regards, hm

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

[ Reply to This | # ]

unacceptable language
Authored by: PJ on Saturday, April 22 2006 @ 08:50 PM EDT
Feel free to repost without the language. Read our
comments policy please. Thank you.

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Can anyone clarify what might be issues for a jury?
Authored by: Anonymous on Saturday, April 22 2006 @ 08:54 PM EDT
For example, with sections of code it appears that the court has a test to
determine if copyright was violated. Would this simply be a matter of law for
the judge rather than facts for a jury? Similarly if IBM doesn't dispute the
facts that SCO claims about IBMs alleged disclosure of mtehods from Dynix and
AIX is the interpretation of the contract as to whether this is in fact a
violation a matter of law for a judge of a matter for a jury to decide. It
appears that there may not be many relevant facts in dispute. Perhaps someone
with much more knowledge of the subject than I might elaborate on this?

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What was the need for discovery?
Authored by: Anonymous on Saturday, April 22 2006 @ 09:07 PM EDT
If SCOG doesn't need to specify version/file/line to any source code in
question, why did they bother to ask for source code in discovery? Either:

a) They know the location of the offending code, and are witholding that
information from the court and IBM, or

b) the discovery was just "make work" to get IBM to waste time and
money.

Either way the court will not like this.

[ Reply to This | # ]

IBM knows about this, right?
Authored by: Anonymous on Saturday, April 22 2006 @ 09:10 PM EDT
I'm sure IBM is going to drag out all the rest of the times file/line/version
has shown up in this case, but it's <i>possible</i> that early SCO
document might have slipped their minds. Is it known whether the information in
this Groklaw story is falling into the hands of IBM as they prepare their
response?

[ Reply to This | # ]

A couple of comments
Authored by: Anonymous on Saturday, April 22 2006 @ 09:29 PM EDT
1. Regarding SCO's definitions

It's an interesting observation, and certainly embarrassing for SCO, that SCO
said this, but I'm not sure it's binding in itself, because even in the
interrogatories, it begins by saying "for the purposes of the
interrogatories" the various definitions apply.

(It seems to me there are many other better arguments that can be made about why
SCO must specify the code, most of which have been discussed here on Groklaw in
other recent stories).

Anyway, continuing with the theme of SCO's definition, also look at 7f.

In section 7f, SCO specifies what IBM must do to show it has rights in
something. Well in SCO's disclosures on the allegedly misused material, they of
course don't seem to be following this standard.


2. On the other bit, about Judge Wells' order.

It's a darn good argument, that SCO have been repeatedly ordered to provide the
specific code information, and other details - and of course the Wells' order
from December 2003, was the first time they were order.

But let's not neglect, that IBM is, and has made this point. For example, in
their Reply memo, which is covered on Groklaw at
http://www.groklaw.net/article.php?story=20060405002552215 - see Addendum A



Quatermass
IANAL IMHO etc

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I don't mean to be a killjoy ...
Authored by: Felix_the_Mac on Saturday, April 22 2006 @ 09:31 PM EDT
but the updated article now shows that IBM has the identical definition of
"identify" in their interrogatories as SCO had in their discovery
request.

Which means that our communal excitement engendered by PJ's original article and
hopes that IBM's team would pick up this hot news from Groklaw were completely
illusory.

IBM new this all along!

Nevertheless we, waiting desperately to see the actual response that IBM submit
next week, are glad to have this further piece of damning evidence to savour.

[ Reply to This | # ]

So if it's methods and concepts - IBM should check it's patent portfolio
Authored by: Anonymous on Saturday, April 22 2006 @ 09:34 PM EDT
For example, if SCO is claiming rights to some of the methods and concepts of
RCU, then IBM should counter that it has art in that area (re: US patent
4809168)

[ Reply to This | # ]

Legal opinon vs Technical opinion?
Authored by: Anonymous on Saturday, April 22 2006 @ 09:44 PM EDT
I have read it argued that Marc is giving a legal opinion, whereas Marc is - at
best - qualified to give a technical opinion. I don't know, but I would be
interested to know what others think.

Also, Marc seems to be saying that code isn't needed to define methods and
concepts in a book. But, even if that is so, does that necessarily mean that
code is not needed to express methods and concepts in a court of law?

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity - Updated
Authored by: PolR on Saturday, April 22 2006 @ 09:50 PM EDT
I have just come back and read the update. This is incredible. Is is just me or
SCOG have shattered the credibility of their own expert? Is he building a
reputation that will stick when comes the time of discussing future motions?

If he is the main guy behind the production of all evidence as he said, will the
judge believe SCOG when comes the time to respond to a request for summary
judgement on the remaining allegedly misused material?

[ Reply to This | # ]

The course of events...
Authored by: tredman on Saturday, April 22 2006 @ 09:50 PM EDT
So here's a question.

IANAL, and all that, but from the way I understand it, juries decide matters of
fact, judges decide matters of law. If the bulk of SCOX's case rests on methods
and concepts, then is there even a need to have a trial by jury?

I would think in order for that to happen, SCOX needs to prove that methods and
concepts are included in the AT&T contract IBM was operating under, which
they're not. This is all in evidence entered with the court, and there's no
dispute to the authenticity of the documents. If that's all SCOX has, then
there's absolutely no reason why the claims will get at all past summary
judgement.

The only reason to have a trial by jury at that point is to settle the
counterclaims, which would be a bloodbath at the very least. I don't think SCOX
would be able to settle with IBM (certainly not like they wanted IBM to settle
with them in the beginning), simply because they really don't have anything of
value that IBM wants. If I remember correctly, the APA says that if an event
such as IBM coming into ownership of SCOX transpires, the UNIX business
transfers back to Novell, though there may have been a time-limitation on that.


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

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity - Updated
Authored by: Anonymous on Saturday, April 22 2006 @ 10:20 PM EDT
I believe the proper phrase is "hoisted on their own petard"

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity - Updated
Authored by: mossc on Saturday, April 22 2006 @ 10:23 PM EDT
I think we are missing the implications of some details of the Rochkind declaration....
8. Of the 294 Items in the December Submission, about a third are cases of misused code, and about two-thirds are cases of misused methods and concepts. With respect to disclosures of code, the December Submission provides specific identification of the code that was wrongfully disclosed by IBM, including in many cases providing charts showing precisely where the code had been disclosed. These disclosures of code are, with a few exceptions, not the subject of IBM's motion or Professor Davis's declaration.

9. The remaining two-thirds of the material identified in the December Submission are methods and concepts. These are specifically identified in the December Submission not only by

1 IBM notes that SCO "appears not to have even used [CMVC] to prepare its Final Disclosures." That is incorrect. I used CMVC extensively.

REDACTED

summarizing the method or concept implicated, but also, in almost all cases, by identifying the actual written communication that constitutes the disclosure. In other words, the method and concept is fully described in the December Submission and the related materials, which are referenced as sources for each of the enumerated items. In most cases the December Submission also identifies the IBM individuals involved in making the disclosure.

So approximately two thirds of the 294 claims are "methods and concepts". I would bet most/all are from AIX, Dynix, Dynix/ptx since there are no secret "methods and concepts" in Sys V.

I think that TSG is claiming a new type of contract violation. The "methods and concepts" from AIX, Dynix, Dynix/ptx have been DISCLOSED by IBM not necessarily used in LINUX.
I don't recall this "violation" of the contract argued in front of a judge yet so I am guessing they fell back on this new claim when research into specificity did not yield anything useful.

I would bet that even if this is the case TSG did not make it clear in their filings what the basis was for their claims.

I am hoping if this is the first time they have brought this into the case that it will not be allowed since it was not clarified until now. Well after the first stage of discovery was complete.

Chuck

p.s. this post was much more lucid the first time but I had a couple more beers in between the lost initial post and the time it took to reconfigure my gnome-power-manager to not "suspend" my machine when I accidently hit the power button on my keyboard.

[ Reply to This | # ]

Methods, Concepts and Mountains of Code
Authored by: Anonymous on Saturday, April 22 2006 @ 10:50 PM EDT
If this is about Methods and Concepts, and you don't need line and verse for
Methods and Concepts, **WHAT WAS ALL THE 'WE NEED EVERY VERSION OF AIX AND DYNIX
FROM THE DAWN OF TIME' ABOUT??***

We have had so much time wasted in their infernal hunt for code fragments, so
much motion practice and so much argument -- and now they say that's NOT what
it's about??

#define Feigned_surprise off

We see clearly, and I guess that the magistrate judge will too, that this has
all been about delay, noise and fury--playing to the peanut gallery, except that
the peanut gallery got a clue early on from Groklaw and are not on their side
anymore.

It seems more clear than ever that SCO is circling the drain-hole and the
outcome is totally inevitable.

[ Reply to This | # ]

Also, by SCO's own admission, the methods are in the code
Authored by: Anonymous on Saturday, April 22 2006 @ 10:52 PM EDT
SCO's response to IBM's Interrogatory #1 is worth re-reading. SCO itself states that the methods are in the code; see the relevant article

INTERROGATORY NO. 1:

Please identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused, including but not limited to as alleged in ¶ 105 of the Complaint.

RESPONSE:

. . .(objectons omitted). . . The trade secrets include without limitation UNIX software design methods for creation and modification of software based on UNIX System V. These UNIX methods include ways to modify IBM's version of UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx. The UNIX methods include those inherent in and learned through access to the System V source code licensed to IBM and/or Sequent and those developed by IBM and/or Sequent in creating derivative works and modification based on UNIX System V pursuant to licensing agreement with SCO's predecessors and SCO and those that IBM and/or Sequent agreed to maintain in confidence for SCO's predecessors and SCO. . .

(Emphasis added)

Here we have (the first two sentences) a discussion of trade secrets (which have been dropped, IIRR), then the sentence on (UNIX) methods!

[ Reply to This | # ]

SCO speaketh with forked tongue
Authored by: Anonymous on Saturday, April 22 2006 @ 10:55 PM EDT
SCOSpeak reminds me of Calvinball

;-)

[ Reply to This | # ]

IBM Didn't Let SCO Win, IBM Played Them For Suckers
Authored by: TheBlueSkyRanger on Saturday, April 22 2006 @ 11:30 PM EDT
Hey, everybody!

It appears those of us who were screaming bloody murder about Judge Wells
allowing the testimony and SCO getting more delay may owe the principals
involved an apology of sorts. Remember the old Usenet tagline, "Any time
things are going your way, you've overlooked something"?

I discussed in an earlier post about how IBM let SCO get it's declaration added.
I mentioned that, when I play cards, any time my opponent doesn't mind me doing
something, I get a sinking feeling in the pit of my stomach, and that was the
sensation I was getting when I thought about IBM allowing the declaration.

This keeps that feeling's accuracy rating at 100%.

IBM had to know this was coming, they had to be already working on something to
cover this. If they didn't see this as an opportunity, they could have
contested it and possibly gotten it thrown out. Instead, by allowing it, they
get to grind their big witness, two arguments (specifity and M&C) into dust
in one shot, and give BS&F night terrors about what is coming next.

A big play that SCO can't possibly stop is coming. To paraphrase Murray Head
(in deference to PJ and her policy about language):

Utah's gonna be the witness
To the ultimate test of cerebral fitness.
Thank heavens I'm only watching the game.

By next Friday, SCO is going to be street pizza, and IBM is driving the
Kenworth.

Dobre utka,
The Blue Sky Ranger

"The painkillers are wearing off. Can I go to sleep now?"
--Fillerbunny

[ Reply to This | # ]

(by product, file and line of code, where appropriate)
Authored by: rsteinmetz70112 on Saturday, April 22 2006 @ 11:36 PM EDT
Looks like SCOG has tried to slide through the sliver of 'where appropriate'.

---
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 | # ]

SCO Will Win This Round
Authored by: argee on Sunday, April 23 2006 @ 12:18 AM EDT
Legal speculation is fine, but the one making the
decision is Judge Wells, not us.

SCOx has been putting out this theory of "All your
bases are belong to us" for a while now, where they
claim control of IBM Code, Methods and Concepts in
AIX/Dynix/ptx.

For her to deny this motion means that she would also be
dumping this legal theory. As a Magistrate Judge, she
is not going to do that, but leave it for Judge Kimball
to do during the PSJ phase in July or August.


---
--
argee

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IBM's M&C counterclaim possibilities.
Authored by: Walter Dnes on Sunday, April 23 2006 @ 12:27 AM EDT
This is totally, utterly, insane. But hey, we're talking about Utah courts,
so why not give it a whirl? There's an old saying that the best defense is a
good offense. What can IBM do on the Methods and Concepts front?

A long time ago (would you believe half a century?), in a lab not that far
away, IBM came up with IBSYS, which ran on the IBM 704. Some of the same people
who worked on IBSYS implemented similar methods and concepts on CTSS. CTSS was
used to implement Multics. Multics was the inspiration for Unix (including a
bad pun) and methods and concepts from Multics ended up in Unix. As we all
know, Unix methods and concepts are ancestral to all modern operating systems
(but I do hope that IBM hires an expert witness other than Darl McBride to make
that claim<g>). Therefore all modern operating systems are derived from,
and contain, IBM's methods and concepts

IBM could then go and try to shake down Microsoft for several billion for
using IBM's methods and concepts. I don't think that even the lax Bush II
anti-trust policy would allow things to go this far. The net result would be
that those methods and concepts would be declared in the public domain.

SCOX made the stupid move of picking a fight with the one and only computing
company in existance today that has corporate memory, and records in its
posession, to be able to make a "methods and concepts" claim against
Unix. SCOX is so dead.

[ Reply to This | # ]

SCO=AT&T ?
Authored by: Anonymous on Sunday, April 23 2006 @ 12:49 AM EDT
SCO M&C case based on AT&T contract. Why the judge didn't order SCO to
solve their homework : f(SCO)=AT&T ?.
I've read somewhere here that SCO <> OldSCO, SCO <> NOVELL, etc, so
why on earth their equate themself with AT&T.

The other homework is derivative theory. IMHO, Extend or expand the feature of
software may be called derivative, but what about new invention that IBM did
(such as RCU, etc). Will SCO be allowed to claim the new addition / new
invention of feature ?.

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity - Updated
Authored by: darkonc on Sunday, April 23 2006 @ 12:49 AM EDT
94 - Filed & Entered: 12/12/2003

In other words, for those 'disclosures', where all SCO is providing is the description of the technology, and the location in Linux, they really didn't need all of IBM's disclosure of code, and they could have provided that information by the jan 11/2004 deadline specified in the first order for disclosure.

If that's the case, they've been holding on to discover information contrary to the court's order(s) for about .... 2 years. This means that the court could just sanction them for holding on to pertinent and available information for so long. For similar disclosures where they cite information from IBM disclosures (like someone mentioning in an an email that they know about the bubble-sort 'method', they have to show that they couldn't have known abou that method previous to that disclosure.

This would allow the judge to just sidestep the annoying arguments about disclosure for most of the disputed items, and focus a magnifying glass on the dozen or so remaining accusations.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

IBM is letting SCO off easy
Authored by: Anonymous on Sunday, April 23 2006 @ 01:11 AM EDT
It is suprising that IBM is only asking for the version and line number from SCO
on all of these points. The Interrogatories show the huge deficiencies in SCO's
claims. Notably lacking (as required by No. 8(f)) is the specific proprietary
information that IBM is infringing against.

I think that my favorite interrogatory is No. 3. I wonder if all of the
information that is required to fullfill this small section would fit in a
million pages, since it requires the name, date and circumstances of _every_
instance of another party veiwing this code.

I almost wish that IBM would remind the judge of each of these interrogatories,
just so that we could watch SCO backpedal and cower.

[ Reply to This | # ]

If you think this is the end of TSG's road, think again!
Authored by: Anonymous on Sunday, April 23 2006 @ 01:16 AM EDT
Nothing has changed at all. This has been foreshadowed by TSG all along. TSG has unveiled a new expert along with their written claims.

There is no evidence of IBM wrongdoing. Just code, emails, distros, programmers, executives, managers, ....

TSG has failed to connect anything TSG owns with Linux. TSG has failed to find a smoking gun, truckloads of infringing code, conspiracies, or any evidence.

Now, all TSG has to do is get to the jury trial. Then, TSG will dredge up everything in order to make IBM and the judges look bad to the jury. No one will ever know what this case is about if TSG is successful.

[ Reply to This | # ]

So, why should things be different now?
Authored by: Anonymous on Sunday, April 23 2006 @ 01:18 AM EDT
Most everything PJ (and others) say makes sense to me.

But if memory serves me right, I'd say the court never enforced its orders for
SCO to specify its claims as quoted in PJ's article at the top of the page.

I don't think it (the court) required compliance, even though it ordered it.

And, if memory serves me right, I'd say the court never penalized SCO in any way
for their non-compliance.

So, why should things be different now?

[ Reply to This | # ]

Re: "And no wonder SCO hates Groklaw."
Authored by: Anonymous on Sunday, April 23 2006 @ 01:41 AM EDT

And it helps explains (to me anyway) why so many of SCO's submissions to the court have been sealed. They may claim that it's to protect the rights of copyrights owners whose source code may be contained or that they're, somehow, watching out for the rights of their contractees but that's a lot of hooey. They're just not keen on a huge number of people looking at their arguments via the Internet and blowing huge holes in them. If they hide their submissions under a court seal no one can look at them and find out how porous their so-called evidence and arguments are.

--

[ Reply to This | # ]

Ignoring court order, no. II
Authored by: Anonymous on Sunday, April 23 2006 @ 03:02 AM EDT
Isn't this a second point where Mr. Rochkind ignores the Court order:
2 IBM criticizes the lack of versions in these references. However, the files referenced can be found, in most cases, in any version of Linux issued after the disclosure.

The court ordered that a file version must be specified. Mr Rochkind claims that this is not necessary.

[ Reply to This | # ]

From the start SCO has said that they won't identify the infringement.
Authored by: Anonymous on Sunday, April 23 2006 @ 03:10 AM EDT
I remember from very early on, SCO has repeatedly said in
public announcements that they won't reveal the alleged
infringement because "if they did then the infringing
material would be removed" thereby mitigating the damage,
and SCO certainly wouldn't allow that. This does seem to
have been a deliberate and wilful policy of SCO right from
the beginning.

If SCO is allowed to proceed with the court case without
revealing the alleged infringements to the court, then the
US legal system is beyond a joke.

[ Reply to This | # ]

Methods, Concepts
Authored by: Anonymous on Sunday, April 23 2006 @ 04:37 AM EDT
I reread the declaration, and it's not as bad as some claim:
I would agree with Mr. Rochkind, it's not necessary to specify source code if one wants to describe a method. E.g. Patent 4,135,240 fully describes a method, without a single line of source code.
Actually I think I would agree with every sentence in the declaration, except the last sentence of paragraph 10:
The reason is simple: the material that was improperlydisclosed to Linux was the method or concept itself, not particular lines of source code from Dynix/ptx.
(emphasis added)
Thus I see only two problems:
  • The court created an order that everything must be specified by file, version, line. Instead of trying to get that order modified, SCO ignored it. Mr. Rochkind openly admits that.
    Question: What will happen? Will the court allow the misused materials anyway, or will they be thrown out?
  • IBM doesn't know the legal theory under which SCO bases it's claim that the disclosure was improper. I doubt that IBM will argue that the disclosures didn't happen. E.g. it's a fact that IBM disclose d the RCU algorithm.
    Question: What's the relevant deadline for describing the legal theory? And where will it appear? Expert testemony?
I'm interested in answers/opinions.

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Toon Moene on Sunday, April 23 2006 @ 05:56 AM EDT
> Thinkest thou that SCO speaketh with forked tongue on the
> subject of identifying methods and concepts by line and
> file?

In this context I think "chapter and verse" would be more appropriate
...

[ Sorry, couldn't resist ]

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

[ Reply to This | # ]

Copyright, Trade Secret or Patented, nothing else remains
Authored by: Anonymous on Sunday, April 23 2006 @ 06:13 AM EDT
SCO must identify exactly what the "problem" is.

Either:

the code is a violation of copyright (so show the line and file) They have
already shyed away from the copyright approach. looks like that line of attack
is closed then.

or:

The code contains information that is a tarde secret, communicated to IBM under
the terms of a contract. As they have already admitted there are no trade
secrets left in SysV, thats that one down the pan then.

or:

The code contains methods protected by patent. I think not.

so they have nothing. Its not good just claimng that its "methods and
concepts" they have to show why those methods and concepts may not be used
by IBM and/or Linux. Since the methods and concepts of SysV have long been
public knowledge (and not SCOX work in the first place) they stand zero chance
of any success in my opinion.

[ Reply to This | # ]

Discovery of SCO's Methods and Concepts
Authored by: iraskygazer on Sunday, April 23 2006 @ 06:51 AM EDT
PJ,

Now we know the 'complete' truth about this case through your great efforts
and the analysis via many eyes.

It seems that SCO's 'method' for this case is to completely obfuscate the
'concepts', of what this case has always been about, so even they can't keep
track of what they've said.

I remember this saying: 'Remember your lies. The truth will come out if you
don't.'

[ Reply to This | # ]

Is there still any copyright infringement claim? shouldn't it be dropped?
Authored by: Anonymous on Sunday, April 23 2006 @ 07:50 AM EDT
.

[ Reply to This | # ]

Where This Is Going
Authored by: sproggit on Sunday, April 23 2006 @ 07:55 AM EDT
Seems to me that the current game in town relates to preparation for a jury
trial.

Today, TSG are trying to tell the Court and IBM that they do not need to provide
specifics of their accusations, since their accusations just relate to
"Methods and Concepts".

It's transparently obvious why. They may have examples of code now in Linux that
TSG believe may have come from SVR4 or earlier Unix Code. They need these
"hand grenades" for the Court, so that they can throw them at IBM
while a jury looks on. "You want specifics? Here, try these
specifics?" At such point, IBM's Legal Team will cry foul, citing the fact
that TSG are trying to introduce new evidence to the case. TSG, with this
response, are trying to position themselves so that they do not have to state,
with specificity, what they are accusing IBM of doing.

They way I see it, TSG have one massive potential problem to overcome. If their
claims were for Trademarks, there is a legal definition for infringement [i.e.
case law]. If their claim were for patent infringement, then there would be a
patent to reference. If their claim were for copyright infringement, then there
would be actual code.

But suppose their are none of these? Suppose, in an act of hubris beyond
measure, that David Boies and Co. believe that they can convince a jury that a
software programming concept must belong to TSG. Remember, now that we're
talking about Methods and Concepts, TSG are claiming that they cannot identify
specific lines of code.

I'm not sure how a Court would react, but in the event that, in a court room,
TSG suddenly stepped up and pointed at a source file and announced "See!?
Here is the infringement! It has just come to our attention, your Honour, that
those pesky IBM folks had our M&C right here!" that they would try and
wriggle around the Court refusing to permit "new charges" to be added
to the case.

This, quite obviously, is their strategy. It's designed to put IBM's legal Team
at a huge disadvantage when in court, and nothing more. We've seen all that so
far.


So what's the IBM defense to all this? Perhaps the best one is the burden of
proof. You see, without a ladder theory to show how specific source code stepped
from SVR4 to Linux via IBM, i.e. when stuck with mere methods and concepts, TSG
have created another burden for themselves. They now have to convince a jury
that this "Method and Concept" is so unique to Unix that it could not
have come from another part of IBM's vast software engineering organisation. The
burden of proof swings back to IBM.

IBM could, in theory, answer with: "That's not *your* method or concept. We
thought that up all by ourselves, and you have to prove otherwise!"

Even this has a downside for IBM. TSG would ask for more discovery to try and
prove that IBM did not conceive the idea themselves. However, having asked for
all the developer notes, working papers, design documents and the like, you
start to see how such could be of interest to TSG in this case.

It will be interesting to see which way this one falls. Both legal Teams are
very capable and experienced, but so far the Court seems to have followed the
line of decency except for those instances where it has been prudent to give TSG
enough rope to hang themselves...

[ Reply to This | # ]

Methods and Concepts are part of the AT&T Software Agreement
Authored by: Anonymous on Sunday, April 23 2006 @ 08:25 AM EDT
Section 7.06 of the AT&T agreement says:

"Licensee agrees to hold all parts of the SOFTWARE PRODUCTS subject to this agreement in confidence for AT&T. LICENSEE further agrees that it shall not make any disclosure ofany or all of such SOFTWARE PRODUCTS (including methods or concepts utilized therein) to anyone, except to employees of LICENCEE to whom disclosure is necessary to the use for which rights are granted heeunder"

SCO's problem is that it must show that the methods and concepts are part of the software product. While lines of code are the most logical way, other ways would be possible under the agreement. For example,it should be enough to identify sentences in the documentation that was part of the delivery. Since SCO apparently did not do even that for the 198 items being discussed, Judge Wells is not put into the quandry of weighing disobediance to her orders against the validity of the complaint.

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Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Hop on Sunday, April 23 2006 @ 08:32 AM EDT
"10. Contrary to disclosures of source code, 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. Many textbooks on
computer programming discuss methods and concepts without providing accompanying
source code for actual systems. I strongly disagree with the premise of
Professor Davis that version, file, and line of source code must be provided to
identify a method and concept, and to prepare a defense to an allegation of
misuse."

"Did IQ's drop sharply while I was away?" - Ripley, Aliens

This is ignorant. Certainly methods ands concepts can exist without code. That's
fine for an academic environment, but we are talking about real, live code here.
They better be able to find it.

I can talk about tires abstractly all I want, but when I build a car, I better
be able to point to something and say "That's a tire."

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Methods, Concepts Contract breaker
Authored by: Anonymous on Sunday, April 23 2006 @ 08:39 AM EDT
I'm too confused to figure this out so I assume thre are other folks in the same
boat.

It seems to me that to argue methods and concepts as a contract issue the
current SCO must be either the same SCO that signed the contract or the real
sucessor in interest of the company that did sign the contract with IBM. Isn't
this a different SCO with a broken chain of interest?

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Anonymous on Sunday, April 23 2006 @ 08:59 AM EDT
PJ states:
<<You do kind of have to pick one or the other, don't you?>>

To be blunt, NO! They were lying in both cases, why should we have to pick
one???

Everything about this case is a lie wrapped in deceit wrapped in FUD wrapped in
GREED.

And yes, I've heard many times that the judges had to give them every chance to
make a case, follow up on every possibility, allow SCO as much room as possible
etc etc. But isn't it about time that they did their jobs now? Shouldn't
they(the court) eventually join the rest of the world and tell SCO what reality
we actually live in?

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  • Good Point - Authored by: Anonymous on Sunday, April 23 2006 @ 11:38 AM EDT
Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Anonymous on Sunday, April 23 2006 @ 10:29 AM EDT
The SCO Group is again attempting to change why they went to court.
Now (at the 11th hour and 59 minutes) they tell the court it is about methods
and concepts and source code is not needed.

The time for telling the court this case is about methods and concepts, was when
the order to specify code was given, not after discovery is over.
This just goes to show "The SCO Group" has not told the court what the
case is about, nor given IBM what is needed for a defense.

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Maybe they have something
Authored by: Anonymous on Sunday, April 23 2006 @ 10:37 AM EDT
I visit this nice site once in a while to see how IBM vs SCO proceeds. Now, I
have a few questions to the experts :

- code claims
"about a third of the 294 Items ... are misused code"
Does that mean they have 100 well specified code claims?
If so, I cant imgagine ALL of them are bogus.

- line,file,version
Lets say SCO found an email from an IBM employee to a
Linux developer, going like this :

"We recently found an interesting method doing xyz,
in a SCO owned document. They described it in detail
but never implemented it (due to ...) and neither we
are going to do (due to ...), but it would perfectly
fit into Linux. Here is how it works: .... "

Would that email be sufficient proof that something
went wrong on IBMs side, even without
line+file+version information ?
(given the method+document is actually SCOs property)

- Probably 95% of the about 300 items are garbage.
Maybe 5% are valid , who knows. What happens then ?

Regards,
Olli


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Now we'll see SCO's secret weapon
Authored by: kawabago on Sunday, April 23 2006 @ 11:13 AM EDT
Maleable truth! It's all they've got left!

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Let's hope the court has the courage to follow its own rules
Authored by: dwheeler on Sunday, April 23 2006 @ 11:14 AM EDT
This case has been going on since 2003, and since 2003 the rules for evidence have been quite fair and clear (lines, file, version). SCO didn't complain about those rules, and even asked for the same things itself. And discovery (aka the fishing expedition) by SCO has finally ended.

So the question is... will the court have the courage to enforce the very rules it has been repeatedly demanding (and SCO has repeatedly ignored)? I hope the answer is "yes". Any claim that doesn't meet the evidentiary requirements needs to be thrown out, immediately. Otherwise, court orders mean nothing at all.

And since there appears to be no "mountain" of evidence, as claimed to the press, I think SCO is liable for defamation and fraud charges. We don't know everything yet, but already it's clear that there is no pony in the stable. Never mind closing the barn door... the horse never set foot in the barn!

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So this is a "Look & Feel" lawsuit now??
Authored by: Anonymous on Sunday, April 23 2006 @ 11:44 AM EDT
I have the feeling for a while now that what SCO actually means by "Methods
and Concepts" is really just "Look And Feel".

Perhaps they will spin this again, (or try to) into a lawsuit akin to something
that Lotus did back in the DOS days (where Lotus actually won suit against
Quattro Pro) over the issue of "Look And Feel"

I seriously doubt this can go anywhere though.

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  • Can't see it - Authored by: Anonymous on Sunday, April 23 2006 @ 12:45 PM EDT
Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Anonymous on Sunday, April 23 2006 @ 11:44 AM EDT
I'm just curious if IBM will have to request leave to file an overlength memo in
response. There is soooo much wrong with the M.R. declaration, and with SCO's
(and their experts') position vis-a-vis the court orders regarding
specificity... and SCO's own requirements for specificity from IBM, and IBM's
original interogatories that SCO agreed to reply to when they got all the code,
et cettera, that I'm not sure that all of it will fit in a "standard
length" reply.

There's so much material there, that if I were one of IBM's atty's, I'm not sure
I'd know where to begin! I suspect this one will be very juicy and savory.
Can't wait!

...D (IANAL, obviously, or I probably _would_ know where to begin!)

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What about Sequent's contract?
Authored by: Anonymous on Sunday, April 23 2006 @ 12:23 PM EDT
Ok, we know that the IBM contract was amended to allow IBM to use methods and
concepts. Is the same true of the Sequent contract? If not, would IBM have a
problem with Dynix/pts violating the terms of the contract in which they are a
"successor in interest"?

This issue has been raised here before but I've never seen anybody address it.

[ Reply to This | # ]

Methods and Concepts are fun to debunk
Authored by: kawabago on Sunday, April 23 2006 @ 01:17 PM EDT
But I don't think this will be the killer issue. I think IBM will press for
summary disposition of ALL these claims because SCO cannot show that it even has
standing to bring this lawsuit. SCO did not get the copyrights which means
Novell is the only entity that could bring these charges, these contracts are
actually still with Novell not SCO.

[ Reply to This | # ]

I am chastened by Groklaw's overlooking BSF's strategy
Authored by: Anonymous on Sunday, April 23 2006 @ 02:09 PM EDT
Their claims are inaccurate and refutable. But they serve a purpose.

Meanwhile, BSF has wandered away from Common Law in order to
develop a theory without precedents in Case Law. This is only my hunch.
But the lack of citations, the lameness of their expert's statement, the
lawyer telling the magistrate judge she was wrong about the case's
theory, the Orwellian statements that contradict each other and change
with each step, This case is so illogical, nothing is certain.

BSF intends to beat both judges just like they intend to beat the jury.
The judges won't have a legal precedent to avoid appeals. The jury
won't have a basis for judging BSF's accusations against IBM. The
case has to continue just as it has been for BSF to pull off avoiding
sanctions and counterclaims. $30 million is big and $5 billion is
bigger yet.

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One thing to remember
Authored by: Anonymous on Sunday, April 23 2006 @ 02:17 PM EDT
Methods and concepts are very murky water. As a programmer for over thirty
years, I would be willing to bet that a lot of the M&Cs in Unix were already
being used in languages other than C and in operating systems other than *nix
prior to it being written. After all, the original writers of Unix didn't start
from absolute scratch.

If you think of the number of operating systems running on IBM, Univac,
Burroughs, ICL and others - all of which ran programmes developed in Fortran,
Cobol etc. it would be hard to believe that nothing was carried over into Unix.

So where do you start to check ? And how do SCO prove the veracity of their
M&Cs ?

Uncle_Bob

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All Judge Wells has to do is state SCO disobeyed her orders
Authored by: Anonymous on Sunday, April 23 2006 @ 03:09 PM EDT
All Judge Wells has to do is to state SCO disobeyed her orders.

Then all she has to do is to find in favor of IBM - to remove SCO's so-called
evidence since it lacks the specificity she ordered. After all, as she said,
orders are suppose to be obeyed - otherwise there would not be a rule of
law.

SCO has made enough contradictory statements to hang itself.
SCO has also conceded there is no specific code of Unix System V in Linux
and no specific code that SCO owns in IBM's Unix versions in Linux.

Once the deadlines passes, the partial summary judgments will gut SCO's
case.

The first one to pass will be no noninfringement of copyrights. This will
completely free Linux and will start the fall of SCO's case.

The only sliver of a case SCO thinks it has is based on contracts.

However, as we have noted in the beginning more than 2 years ago, any SCO
claim based on breach of contract accusations will only need to be heard by
the judge since the interpretation of the contract is a matter of law rather
than a matter of fact.

In regard to interpretation of the contract, the law is on IBM's side, the
participants in creating the contract are all on IBM's side.

In addition, SCO itself has breached its own contract with Novell - including
disregarding Novell's orders to end the litigation against IBM.

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Required Specificity
Authored by: hardcode57 on Sunday, April 23 2006 @ 03:29 PM EDT
Setting aside for the moment the issue of whether the court oredered file and
line specificity, what SCO has produced just isn't enough.

As a practicing Software Engineer, I can kind of see where Mark Rocktroll is
coming from, in that I wouldn't need line by line comparison to ascertain if a
couple of files were concerned with doing the same thing in the same way.
However, I'd certainly need more than SCO are offering.

If someone wants to establish that what Programmer 'Anne' has done mirrors what
Programmer 'Barry' have suggested they must at least:

a. Specify the method, using some kind of diagram, or at least a clear verbal
description.

b. Relate that diagram to the source code by Variable and Function call.

You could possibly get away with the method description and say 'the method
that we call the <AnyOldMethodName> is implemented in AOM.cpp in AIX, and
LAOM.cpp lin the Linux kernel', if those files are principally about that.

SCO themselves must have gone through this process if they claim to have found
similar methods: they MUST already have the information in a. and b. above.
Certainly they'll have to produce something more if they ever plan to explain
their view of things to a jury, as they claim to want.

The fact that they wish to fall short, not only of previous orders from the
court, but also fail to disclose information they MUST have is proof, if any
were needed, of bad faith.



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Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Anonymous on Sunday, April 23 2006 @ 06:30 PM EDT
If you look at Marc's last blog entry:

href='http://basepath.com/index-real.php'>
http://basepath.com/index-real.php
a>

It looks like he is revealing 'secret and confidential' information, include
Code, methods and concepts himself.
Or Am I wronmg?

Zeke

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Methods, Concepts
Authored by: El_Heffe on Sunday, April 23 2006 @ 07:49 PM EDT
"10. Contrary to disclosures of source code, 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."

This is just so insanely stupid that I'm really having trouble wrapping my
brain around it. If IBM has mis-appropriated methods and concepts belonging to
SCO, then shouldn't SCO have to:

1. Describe exactly what methods and concepts IBM has used improperly.
2. Point to specific lines of IBM code that use these methods and concepts.

Are the judges in this case really so cluesless that they don't get this? I
like the fact that Judge Wells has noticed SCO trying to change their argument
to "methods/concepts" and I like the "is that all you have"
comment. But still, I fear that Judges Kimbal and Wells still don't quite
"get it" and still just aren't quite able to see past SCO's barrage of
B.S.

I hope I'm wrong about the judges, but I'm really troubled by the repeating loop
that has been going on for 3 years now:

1. IBM complains about SCO's lack of specifity
2. Court orders SCO to be more specific
3. SCO produces meaningless B.S.
4. IBM complains about SCO's failure to obey court's order
5. SCO claims they have complied
6. Judge doesn't seem to grasp that SCO has prodcued meaningless B.S. instead
of specifics that were ordered.
7. Lather, Rinse, Repeat





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

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My Biggest Fear
Authored by: Anonymous on Monday, April 24 2006 @ 01:02 AM EDT
[tried to register but no e-mail response, oh well]. Looking at this case from
the 30,000 foot level, I know very little about law, but my fear is that SCO and
IBM will reach what I believe is called an "amicable resolution", or
in plain English, they settle out of court. Basically what would happen is
this. SCO realizes it has no real case, and IBM realizes that even so, the
litigation could drag on for more years to come and cost millions in legal fees.
So they reach a settlement. IBM pays SCO say, $500,000, and SCO drops all
claims. IBM gets off cheap, and SCO gets something besides a tar and feathering
from the court. But nothing is resolved. SCO still claims proprietary
ownership of linux code, and reserves the right to charge license fees in the
future, and this claim is still not affirmed or refuted by the courts. Is such
a scenario possible or am I (hopefully) mistaken?

[ Reply to This | # ]

Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Anonymous on Monday, April 24 2006 @ 01:10 AM EDT
It's pretty clear now that SCO's claims were all just a ruse to abuse
discovery.

[ Reply to This | # ]

What if Wells rules ofr IBM?
Authored by: Anonymous on Monday, April 24 2006 @ 03:28 AM EDT
What if Wells rules for IBM. What can SCO do to try to get their claims
reinstated? Can Judge Wells dismiss claims with predjudice?

[ Reply to This | # ]

Where appropriate -- Methods, Concepts and a Demand for Specificity - Updated 2Xs
Authored by: Anonymous on Monday, April 24 2006 @ 12:45 PM EDT
...'"identify, with specificity (by product, file and line of code, where appropriate) all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges or contends IBM misappropriated or misused" (IBM's Interrog. No. 1);'...

OK
Is the term where appropriate SCO's out? Was that IBM's phrasology?
Didn't SCO claim that lines of code were supplied where appropriate. Everything else didn't need lines of code?

[ Reply to This | # ]

  • Not an out - Authored by: sk43 on Monday, April 24 2006 @ 09:10 PM EDT
part 6 of docket text seems to allow them to do about anything
Authored by: jws on Monday, April 24 2006 @ 02:21 PM EDT
The Docket Text entered 12/12/2003 has 6 parts that SCO is ordered to do. Part
6 states

"6) If SCO does not have sufficient information in its possession, custody,
or control to specifically answer any of IBM's requests that are the subject of
this order, SCO shall provide an affidavit setting forth the full nature of its
efforts, by whom they were taken, what further efforts it intends to utilize in
order to comply, and the expected date of compliance."

I would think that this order would allow them to respond that they looked for
the lines of code, and to their horror, discovered that they had to specify
"methods and concepts" were missappropriated. At least this is not a
leap to a non lawyer who has seen lawyers do more with less language in the
past.

Also I understand the references that the contract was modified to include
"methods", but I fear this works to SCO's advantage, because that
would allow IBM to use it in Dynix, AIX or whatever that they were to keep
secret, and not allow it to be used in another product.

I had a similar situation working with a proprietary OS vendor where I was an
insider to the methods, code and so forth, and I could not have gone to a
competeing vendor w/o incuring the wrath of the original vendor due to the non
disclosures on that. Anything that I created after I left the employ of the
original OS vendor as long as it was not derivative would be okay, but I would
not expect that moving features of the original vendors product into a competing
product would ever fly.

This embracing of Linux while IBM had a Unix product with the protections that
one would expect of that, always seemed to me to require an interior wall,
however costly to keep the products apart. This whirlwind of BS we are seeing
now is the result of not being able to absolutely do that.

[ Reply to This | # ]

Rochkind is misleading about textbooks
Authored by: Anonymous on Monday, April 24 2006 @ 02:26 PM EDT
10. Contrary to disclosures of source code, 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. Many textbooks on computer programming discuss methods and concepts without providing accompanying source code for actual systems. I strongly disagree with the premise of Professor Davis that version, file, and line of source code must be provided to identify a method and concept, and to prepare a defense to an allegation of misuse.

This is bogus from start to finish.

In my experience computer science textbooks always provide source code for the methods and concepts under discussion. The three textbooks that happen to be within my reach right now (Numerical Recipes in C, Programming Perl, and Compilers Principles Techniques and Tools) all provide a lot of source code. My other books happen to be at work, but I can't think of any that discuss methods and concepts of programming without accompanying source code. Does anyone have any counter-examples?

Perhaps this is why the phrase "actual systems" is included. "Compilers" does not include an actual working compiler, and so it might be argued that there is no "actual system" included. But this is, at best, evasive. Textbooks include code fragments that clearly illustrate the methods and concepts discussed. The fact that these fragments cannot be compiled into an "actual system" is irrelevant.

If I wanted to refer to the discussion of a particular method or concept in a computer science textbook I would do so by naming chapter or subsection that contained discussion of the method or concept and code illustrating its application. In the case of an actual system the equivalent to a chapter would be a file name, and probably one or more function names to tie it down. Or you could do it by line number if you preferred.

[ Reply to This | # ]

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