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Randall Davis Rebuttal Declaration with Exhibits - updated
Friday, April 28 2006 @ 10:21 PM EDT

Here's the redacted Rebuttal Declaration of Randall Davis, responding to Marc Rochkind's Declaration, with exhibits, some of which were filed under seal. I haven't read them yet myself, so we can read it all together. Here are all the PDFs:
  • Rebuttal Declaration of Randall Davis (OK. I think we have it fixed now. Let me know if you still have problems. there's a problem with this one. We will fix and replace. Meanwhile you have the text.)
  • Exhibit A (excerpts from Court Orders)
  • Exhibit B (Plaintiff's 1st Request for Production of Documents and 1st Set of Interrogatories)
  • Exhibit C (filed under seal)
  • Exhibit D (excerpts from Advanced Unix Programming, 2d Edition, by Marc J. Rochkind)
  • Exhibit E (filed under seal)
  • Exhibit F (filed under seal)



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

SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

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

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

_______________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

________________________________________

THE SCO GROUP, INC.

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

________________________________________

REBUTTAL DECLARATION
OF RANDALL DAVIS

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

FILED IN REDACTED FORM

I. INTRODUCTION

1. I have been asked by counsel for IBM to respond to the Declaration of Marc Rochkind submitted by The SCO Group, Inc. (“SCO”) in opposition to IBM’s motion to limit SCO’s claims. This declaration is limited to responding to the issues raised by Mr. Rochkind.

2. Like my declaration dated March 29, 2006, this declaration is based on my experience working in the field of computer science and evaluating allegations of intellectual property violations. I further base the facts and opinions set out in this declaration upon careful review of SCO’s Final Disclosure of Allegedly Misused Material dated December 22, 2005 (the “Final Disclosures”).

3. In summary, the Rochkind declaration talks past the conclusions set out in my previous declaration. While Mr. Rochkind states that he “strongly disagree[s] with [my] assertion (at paragraph 11) that SCO has failed to identify with specificity 198 challenged Items in the December submission” (Rochkind Decl. ¶ 7), he fails to directly confront the facts set out in my declaration and his conclusion is clearly based on a very different inquiry. Put differently, Mr. Rochkind reached a different conclusion than I did because he answered a different question.

4. If the question is whether SCO provided version, file and line information for each of the 198 Items at issue, then the answer is unquestionably “No”. Although Mr. Rochkind uses words that might be understood to suggest that these coordinates have been provided where possible (Rochkind Decl. ¶¶ 11-12), they have not been. Notably, he makes no effort to show that they have. Without version, file and line information concerning SCO’s allegations, it is simply not possible fully to understand its claims, which puts IBM at an extraordinary disadvantage.

2

5. If the question is whether version, file, and line information is still needed even where the allegations concern misuse of methods and concepts (rather than copying of code), the answer is unquestionably “Yes.” It is entirely possible for the party making the allegations of misuse to assemble such information: Where a method or concept is in fact used in a program, there must be lines of source code in the program that implement the method or concept. The alleging party need simply cite the program version, file, and lines in which that source code appears.

6. In the next section of this declaration, I explain some basic background that helps in understanding why Mr. Rochkind’s position is untenable. Section III details the fundamental disagreement between my original declaration and the Rochkind declaration. In Section IV, I respond to Mr. Rochkind’s assertions that the 198 Items are essentially all methods and concepts claims and that such claims do not require version, file and line information. In Section V, I address Mr. Rochkind’s assertion that IBM has more than enough information to defend itself. Finally, in Section VI, I consider Mr. Rochkind’s claim regarding “willfulness”.

II. IMPORTANT BACKGROUND

7. Several basic facts concerning this case are worth reviewing briefly to help make clear the difficulties presented by SCO’s position on disclosure.

8. First, SCO has alleged misuse of its intellectual property, claiming, among other things, that its System V Unix code was copied by IBM into AIX and/or Dynix and then contributed, with and without AIX and Dynix code, by IBM to Linux. For these allegations to be understood, SCO must (a) specify the System V code that was allegedly copied, (b) specify where in AIX and/or Dynix the code allegedly derived from System V appears, and (c) specify where in Linux the allegedly infringing code appears.

3

9. Without such specification, how can IBM respond, much less prepare a defense? How, for instance, can it determine whether the code allegedly copied from System V is in fact protectable, or instead is unoriginal; an idea, process or procedure; dictated by externalities; or in the public domain? Such an analysis must proceed from the specific code, and absent an indication of what code is in question, the analysis cannot even begin.

10. Second, the volume of code at issue in this case is so enormous as to make it pragmatically impossible to determine what code might be in question unless the version, file and lines are specified. To put this in more familiar terms, consider that a single recent version of Linux contains about 6 million lines which if printed would be about 110,000 pages. In other words, a single recent version of Linux is the equivalent of a 218 volume encyclopedia. 1 Now consider that there are 597 distinct versions, and think of each version as an edition of the encyclopedia. Hence in the absence of a specification of version, file and line information for the allegedly misused code, SCO is essentially saying “somewhere in the 597 distinct editions of this multi-(in many cases 100+)volume encyclopedia you have misused some of our property.”

11. Without a specification of the System V code that has allegedly been copied, IBM cannot know with specificity even what IBM stands accused of misusing. Without a specification of where the accused code allegedly appears in Linux and AIX or Dynix, IBM faces a pragmatically impossible task of finding it. For the record, there are:

4

  • At least 11 versions of System V code totaling almost 24 million lines of text.2
  • At least 9 versions of AIX totaling almost 1.2 billion lines;
  • At least 25 versions of Dynix totaling almost 157 million lines; and
  • At least 597 versions of Linux totaling almost 1.4 billion lines.

12. In the case of the 198 challenged items, SCO thus has offered an impossibly non-specific accusation, attempting to leave both the interpretation of the allegations and the finding of the evidence (should there be any) as an exercise for IBM. Requesting version, file, and line numbers for all the code in question is no more unreasonable on the face of it than an encyclopedia publisher asking that an allegation of plagiarism be specified in terms of the edition, volume and page where the accused text appears, as well as a listing of the text from which it was allegedly copied.

13. In the absence of such information, allegations are impossible even to analyze: imagine the publisher of the Encyclopedia Americana telling the publisher of the Encyclopedia Britannica “your encyclopedia contains material that was copied from us” and then refusing to specify what was copied (what text from which edition, volume and page of the Americana) or where it appears (which edition, volume and page of the Britannica).

III. THE REASON FOR MR. ROCHKIND’S DISAGREEMENT

14. Mr. Rochkind disagrees with my conclusion that the 198 Items are not disclosed with the requisite specificity. The primary reason for this disagreement is that

5

he used a very different test to evaluate specificity than I did. When the test that I understand to be the correct test is applied, the 198 Items come nowhere close to passing muster.

15. I was instructed by counsel for IBM to evaluate the 198 Items based on the language of the Court’s orders of December 12, 2003, March 3, 2004, and July 1, 2005. As described in Exhibit A, I understand the orders to require the disclosure of the allegedly misused material by version, file and line of code. That is the standard (and most precise) means of identifying the code, methods and concepts, and concepts of an operating system.

16. The Court’s Order of December 12, 2003, states that SCO is required:

(1) “To identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM.” (¶ 4.)

(2) “To respond fully and in detail to Interrogatory Nos. 1-9 as stated in IBM’s First Set of Interrogatories” (¶ 1), which provide, for example, as follows:

Interrogatory 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, . . . .”

Interrogatory 3: “Please . . . describe, in detail, . . . all places or locations where the alleged trade secret or confidential information may be found or accessed.”

Interrogatory 4: “Please describe, in detail, . . . 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.”

(3) “To respond fully and in detail to Interrogatory Nos. 12 and 13 as stated in IBM’s Second Set of Interrogatories” (¶ 2), which provide, for example, as follows:

Interrogatory 12: “Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux . . . to

6

which plaintiff has rights; and . . . how the code or other material derives from UNIX.”

Interrogatory 13: “[P]lease . . . describe in detail how IBM is alleged to have infringed plaintiff’s rights. . . .”

17. The Court’s Order of March 3, 2004, required SCO to: (1) “provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix” (¶ 2), (2) “provide and identify all specific lines of code from Unix System V from which IBM’s contributions from AIX or Dynix are alleged to be derived” (¶ 3), and (3) “provide and identify with specificity all lines of code in Linux that it claims rights to” (¶ 4, emphasis added). It is difficult to imagine instructions that are any clearer, more specific, or more unambiguous.

18. The Court’s Order of July 1, 2005 (at 4) reiterated SCO’s obligations to specify its claims and ordered it to update its interrogatories accordingly.

19. Note that the Court’s orders required no more of SCO than SCO required of IBM. In its First Request for Production of Documents, SCO defined the term “identify” as follows:

“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.” (Exhibit B (emphasis added).)

I understand that SCO subsequently incorporated this identical definition in eight additional document requests, five additional sets of interrogatories, seven 30(b)(6)

7

deposition notices, and three requests for admission, the latest of which was served on March 10, 2006. Thus, SCO itself has continuously demanded the same degree of specificity ordered by the Court and requested by IBM.

20. Despite the language of the Court’s orders, and of SCO’s own discovery requests, the Final Disclosures do not provide version, file and line information for each of the 198 Challenged Items. As is illustrated in my original declaration (Addendum B), and summarized in the following table, SCO provides version, file and line information for very few of the Challenged Items:

- Version(s) File(s) Line(s)
System V1 1 0
AIX 1 1 0
Dynix 2 3 0
Linux 27 149 3

Note that there is not even one Item for which SCO provides a complete set of coordinates.

21. Mr. Rochkind does not seem to disagree that SCO has not provided a complete set of coordinates for each of the 198 Items. Instead, he asserts that, with respect to many of the Items, SCO has provided sufficient detail relating to claims because it has summarized its allegations of misuse, provided documents relating to the alleged misuse, identified persons involved in the alleged misuse and/or pointed IBM to source code. (Rochkind Decl. ¶ 9.)

8

22. It is true that SCO has, for most of the Items, summarized its allegations, listed persons involved in the alleged misuse and referred IBM to certain documents. That is simply not the appropriate measure of compliance, as I understand the Court’s orders. Nor would it be the appropriate measure of compliance under SCO’s own discovery requests. Mr. Rochkind’s declaration defines his own standard of specificity and asserts that SCO’s Final Disclosures, of which Mr. Rochkind claims to be the primary author, meet the standard.

23. Putting aside the language of the Court’s orders, it is difficult to consider the information SCO has provided as sufficiently specific when (1) many of the summaries are extremely general (e.g., Item 180 claims only that IBM misused the “internals” of System V Release 4, without any mention of which part of the several-million-line operating system was misused); (2) the documents provided are mostly documents that IBM provided to SCO, and they tell IBM little more than it would have known before SCO filed its complaint; (3) for many of the Items, SCO does not identify any individuals, it says only “IBM”; and (4) according to Exhibit B to Mr. Rochkind’s declaration, SCO identified code with respect to no more than 16 of the 198 Items.

24. If the Court’s orders required only that SCO provide some minimal, additional information about its allegations, then I agree with Mr. Rochkind that it has done that. If they required that SCO provide the standard coordinates for identifying allegedly misused aspects of an operating system (code, methods and concepts), then SCO’s disclosures regarding the 198 Items fall far short. For some of the Items (e.g., Item 93), the Final Disclosures reveal little more than the minimal description found in SCO’s Complaint.

9

IV. MR. ROCHKIND’S ASSERTIONS ABOUT METHODS AND CONCEPTS

25. Rather than disagree with the fact that SCO has not provided version, file and line information regarding any of the 198 Items, Mr. Rochkind devotes the better part of his declaration to rationalizing SCO’s decision not to provide the information. Contrary to Mr. Rochkind’s suggestion, however, there is no reason SCO could not have provided the missing information with respect to its methods and concepts-misuse allegations, as well as its code-misuse allegations.

26. To begin, Mr. Rochkind seems to suggest that virtually all of the 198 Items concern methods and concepts rather than source code. (Rochkind Decl. ¶¶ 8-9.) According to Mr. Rochkind, less information is required to evaluate a method than is required to evaluate code. (Rochkind Decl. ¶ 10.) Thus, Mr. Rochkind states, there was no need for SCO to identify version, file and line information relating to methods and concepts. (Rochkind Decl. ¶ 10.) Putting aside the fact that the Court’s orders -- on their face -- require version, file and line information for methods and concepts as well as code, Mr. Rochkind is mistaken both as to the number of Items that concern methods and concepts and the information needed fully to evaluate operating-system methods and concepts.

27. Contrary to Mr. Rochkind’s suggestion, a significant portion of the 198 Items concern the alleged misuse of code. As described in Exhibit C, the language of many of the challenged Items themselves relate to the alleged misuse of code. For example:

Item 17: [redacted]

Item 22: [redacted]

Item 27: [redacted]

10

Thus, it is simply wrong for SCO’s Mr. Rochkind to imply that the only Items in dispute concern methods and concepts.

28. Mr. Rochkind suggests that all Items of allegedly misused of code are disclosed by SCO with appropriate line specificity. That is unfortunately patently false and Mr. Rochkind is ignoring dozens of the 198 challenged Items that do concern alleged code misuse. In fact, many of the Items that clearly concern the alleged misuse of code comprise SCO’s most imprecise allegations. In 39 of the Items (Items 232 to 270), for example, SCO accuses IBM of making improper reference to Dynix source code as a basis for writing additional code, while providing essentially no further information. Each of these 39 items has an “Improper Disclosure” claim of the form: [redacted] where the blank contains things such as [redacted] and so forth. That is, SCO is specifically accusing IBM of referring to Dynix code and System V code, and then using that as the basis for creating additional code (e.g., [redacted]). Yet there is absolutely no specification of any kind (no version, file, or line numbers) of which Unix code was allegedly referenced, or of which Dynix code was allegedly referenced. IBM is left to guess as to which of the 470,000-plus files and 156 million-plus lines of Dynix code included within SCO’s vague claims are in fact challenged by these Items.

29. As if to further justify SCO’s failure to provide version, file and line information, Mr. Rochkind suggests that it is not possible to identify version, file and line coordinates with respect to methods and concepts. (Rochkind Decl. ¶ 10.) That is simply

11

incorrect. The methods and concepts employed in an operating system (or any computer program) are in the source code. It could not be otherwise: The source code of a program specifies all of its possible behavior. If that behavior truly embodies a method, that method must be expressed in specific lines of the source code; there is just no other way to do it.

30. Consider, for example, Item 146, which alleges (among other things) that IBM improperly disclosed a method called [redacted] Simply put, the method suggests ways of finding performance bottlenecks by counting the events that happen inside a program and then analyzing those counts. But the counting and analyzing can be done only by code, i.e., source code written to keep track of the number of times an event happens and written to analyze the counts as explained in the method. Any time a method is used, it can only be because there is source code that implements it. It really is that simple. Hence, if System V, AIX, Dynix or Linux used that method, they must contain source code that implements it, and SCO ought to cite the specific lines of code.

31. Although, as Mr. Rochkind states (Rochkind Decl. ¶ 10), methods and concepts are sometimes discussed in text books without reference to source code, such discussions are, most often, at a high level of generality. The mere fact that a method can be discussed generally without referring to source code does not mean that its corresponding source code cannot be identified. It can, and SCO -- having alleged that System V, AIX, Dynix or Linux code somewhere embody a method -- bears the responsibility of identifying the specific code it claims embodies that method.

32. The disclosure of the corresponding source code also greatly aids in understanding the method, as Mr. Rochkind’s own text illustrates. Despite his attempt to make the identification of source code seem irrelevant to the identification of methods and

12

concepts (Rochkind Decl. ¶ 10), his own book on the subject of operating systems, Advanced Unix Programming (2d ed. 2004), (which he asserts, “explain[s] in detail how to use UNIX system calls” (¶ 5)) devotes considerable space to describing methods and concepts with reference to source code. For example, it states that “this new book includes thousands of lines of example code”. (xii). Indeed, his chapter devoted to “Fundamental Concepts” describes UNIX concepts using, in many cases, nearly full-page excerpts of source code and even refers back to his own website to offer complete code listings where the excerpts are not enough. (See, e.g., id. at 24-38. (Exhibit D).)

33. SCO’s Chief Technology Officer, Sandeep Gupta, testified concerning the importance of having version, file and line information with respect to methods and concepts. Mr. Gupta was asked the following questions and provided the following answers: [redacted]

13

34. Furthermore, as stated, SCO itself specifically demanded that IBM identify methods and concepts with reference to files and lines of code. It did that, no doubt, because the standard means of identifying an operating system method with specificity is by file and line of code. I assume SCO would not have demanded that IBM provide information that could not be provided.

35. In truth, it is even more important to have version, file and line information regarding methods and concepts claims than it is to have the information for code claims. When specific lines of source code are identified by a plaintiff who alleges they have been improperly copied, a defendant can at least automate the process of looking for literal infringement: he can set a computer to work searching through his own code to see if it contains the lines identified by the plaintiff.

36. But the same cannot be said for methods and concepts. Consider once again the alleged “Improper Disclosure” in Item 146: [redacted]

There are no automated techniques for finding the lines of code that embody that method. Because they are abstractions, methods and concepts must instead be located by manual review of the code, and given that there are between tens of millions (System V) and billions (AIX, Linux) of lines to be searched, locating such methods and concepts are simply untenable here. Given the size of the code base here, manual review is, as a practical matter, an impossible task.3 Hence, without a specification by SCO of

14

the location of the code implementing the method, the claim cannot be adequately analyzed.

V. DEFENDING AGAINST SCO’S CLAIMS

37. I stated in my original declaration that SCO’s failure to provide version, file and line information makes it impossible, practically speaking, for IBM to defend itself. Mr. Rochkind disagrees. (Rochkind Decl. ¶ 7.) However, his view is supported only by naked assertions and does not survive even the weakest scrutiny.

38. The kinds of questions that must be asked to defend against SCO’s allegations are not a secret. They have been involved (more or less) in each of the 30-plus cases in which I have been retained as an expert to deal with alleged misappropriation of intellectual property, including in Computer Associates v. Altai, in whichI served as an expert appointed by and for the Court.

39. Among the many questions IBM must answer are the following:

  • Did IBM offer the Item to Linux?
  • Did the Item originate in or derive from System V and AIX or Dynix?
  • Was the Item accepted into Linux and, if so, when and to what effect?
  • Is the Item copyrightable (or is it unoriginal; a mere idea, process or procedure; dictated by externalities; or in the public domain)?
  • Has the disclosure of the Item or its inclusion in Linux had a negative effect on SCO or a positive impact on IBM?

15

I do not understand Mr. Rochkind to dispute the relevance of these questions, which must be answered on a line-by-line basis.

40. Many thousands of persons have contributed to the development of Linux, and IBM has made many contributions to Linux, some of which represent only a few lines of code in a file comprised of hundreds of lines of code. The only way to know whether IBM made a given contribution is to know precisely what the alleged contribution is. Similarly, whether a given contribution originated in, or is derived from, System V, AIX or Dynix is a line-specific inquiry. One line may have; another may not have. Version, file and line information is no less critical to determining whether a line of code -- and especially a method -- is in Linux, since it is composed of millions of lines of codes and many thousands of methods and concepts and concepts.

41. To determine whether an Item is copyrightable requires line information because that is the only way to assess originality, determine whether the line is merely an idea, process or procedure, evaluate whether the Item is dictated by programming practices, governed by standards, or in the public domain. These questions simply defy generalized examination. In a given file, one line might be original, whereas another might not; one might be in the public domain, whereas another might not; and so on. For these same reasons, it is also not possible to evaluate whether a method has a positive impact on Linux and IBM (or a detrimental impact on SCO) without understanding precisely what it is.

42. Absent the production of the version, file and line information referenced in the Court’s orders, it is very difficult, if not impossible, to answer these questions. As described in the Declaration of Todd Shaughnessy, dated April 4, 2006, the size of the code bases implicated by SCO’s claims is enormous.

16

Operating System Version(s) File(s) Line(s)
System V 11 112,622 23,802,817
AIX9 1,079,986 1,216,698,259
Dynix 37 472,176 156,757,842
Linux 597 3,485,859 1,394,381,543
Total: 654 5,150,643 2,791,640,461

43. Mr. Rochkind does not disagree that the implicated code base is enormous. Nor does he disagree that SCO’s Chris Sontag provided sworn testimony early in the case that it would take 25,000 person-years to review a code data base .2% the size of the stack of code at issue. Mr. Rochkind states only that he has helped SCO to provide enough information for IBM to find the 198 needles in the haystack. Having helped to decide what the needles are, Mr. Rochkind may well feel as if he knows what they are. But I do not. Nor do I believe that other independent experts would.

44. Examining the only Item specifically mentioned in Mr. Rochkind’s declaration, Item 146, makes the point. In Item 146, SCO complains about IBM’s [redacted] by reference to: (1) an email asking for help with a performance problem, (2) an email response with a suggested analysis technique (differential profiling), (3) a technical paper written by Paul McKenney, (4) a URL reference to scripts that might be of help, and (5) a list of 11 Linux files (names only, no versions or lines). Contrary to Mr. Rochkind’s claim that I ignored these materials, in fact it was by examining them closely that I concluded, as stated in my original declaration, that SCO has provided no meaningful information about what IBM is alleged to have done wrong.

17

45. The claim in Item 146 is sufficiently vague as to lead to several different interpretations. As it takes several pages to analyze all of the possible interpretations, and to point out all of Mr. Rochkind’s errors, I have put the analysis in Exhibit F. The details can be found there; the summary points are simple enough:
  • Mr. Rochkind points out that the email cited in Item 146 contains [redacted] and [redacted] He conveniently overlooks the fact that the [redacted] are all the “before” version of the code. That is, the [redacted] contain the code that didn’t work well enough, the code that the application of differential profiling was supposed to help repair. There is in fact no code cited that is alleged actually to contain the use of the method.
  • Mr. Rochkind points out that there is [redacted] Indeed there is, and the paper was published in the open literature in 1995 (the 1995 IEEE MASCOTS Symposium), six years prior to the email in question.
  • As Mr. Rochkind points out, there are [redacted] specified in Item 146, but, as he omits to mention, no specific version of Linux is cited. Even so, unfortunately for his position, none of these files appears to deal with differential profiling.4

18

46. As described in Exhibit F, rather than clearly state its claims to Item 146, SCO identifies a series of dots and leaves IBM to try to connect them. The problem is they do not connect. At most they leave IBM to guess as to which of any number of claims SCO might actually be making. To defend itself, IBM is left to respond not just to what is at issue -- which is not clear -- but to all of the possibilities. For Items like Item 146, there are at least a handful of possibilities. As to other items, the possibilities are almost innumerable. When SCO accuses IBM of misusing the internals of System V (e.g., Item 180) or of misusing its experience with Dynix/ptx, for example, SCO accuses IBM of misusing any one of the millions of lines of code and the thousands of methods and concepts contained in these operating systems.

47. Even if IBM could feasibly chase all of the possibilities held open by the Final Disclosures (which clearly it could not do without years of additional effort), the generality, uncertainty and ambiguity inherent in the final disclosures are sure to lead to games of “where’s the pea” during the expert and summary judgment phases of the case. Based on the information SCO has provided (or, more accurately, not provided), it is difficult to imagine any meaningful exchange of views among experts. Likewise, a court can hardly evaluate at summary judgment what cannot be defined. Had SCO provided full code coordinates for the allegedly misused material, games of “where’s the pea” would not be possible. SCO’s claims could have been understood and analyzed. Unintentional allegations could have been eliminated.

48. While I do not believe that IBM can fairly defend itself absent version, file and line information for each of the Items, it would -- at the risk of stating the obvious -- require a very significant period of time for IBM to conduct an investigation into the general allegations set out in the 198 Items. Without engaging a very large corps of

19

experts, it would take years. Even then it is very unlikely that IBM could succeed in learning what is ultimately known only to SCO: its allegations.

VI. MR. ROCHKIND’S WILLFULNESS ASSERTIONS

49. Finally, Mr. Rochkind addresses IBM’s contention that SCO acted willfully in failing to provide version, file and line information. (Rochkind Decl. ¶¶ 16-18.) Mr. Rochkind claims that IBM is wrong to state that SCO acted “willfully in not specifying its claims” and wrong that “SCO has declined, as a practical matter, to tell IBM what is in dispute.” (Rochkind Decl. ¶ 16.) Here again, Mr. Rochkind’s view appears to turn on his own, self-defined view of the appropriate standard.

50. I am not a legal expert, and do not pretend to be an authority on the meaning of the term “willfully” for purposes of a court’s deciding whether a party should be limited in submitting evidence in support of its claims. In responding to Mr. Rochkind’s assertion, however, I rely on the definition of the term used in the cases provided by counsel for IBM, e.g., Schroeder v. Southwest Airlines, 129 Fed. Appx. 481, 484-85, 2005 WL 984495 (10th Cir. 2005) (holding that “[w]illful failure means ‘any intentional failure as distinguished from involuntary noncompliance. No wrongful intent need be shown’”); F.D.I.C. v. Daily, 956 F.2d 277, 1992 WL 43488, at *3-6 (10th Cir. 1992) (same); and In re Standard Metals Corp., 817 F.2d 625, 628-29 (10th Cir. 1987) (same).

51. Using the definition of “willfully” set out in these cases, I have no difficulty concluding that SCO acted “willfully” in submitting its Final Disclosures and omitting the information called for in the Court’s orders. The Court’s orders clearly call for version, file and line information, with respect both to code and methods and concepts. Identifying code and methods and concepts by version, file and line of code is the standard method of identifying operating system source code and methods and concepts

20

with specificity. SCO asked nothing less than this of IBM. There is no reason it could not be provided here. Indeed, without it, the 198 Items are too vague and indefinite to permit complete analysis.

52. As Mr. Rochkind’s declaration makes clear, SCO does not claim to have assembled the Final Disclosures unwittingly. It plainly did not, as evidenced by the fact that SCO provides version, file and line information for a number of Items that are not challenged in this motion. There is no dispute that SCO made a deliberate decision to provide the information it provided and the information it did not. (Rochkind Decl. ¶ 10.) And SCO deliberately created a different standard to apply to itself than it demanded of IBM, and the court required. SCO’s failure to provide version, file and line information was not unknowing or inadvertent.

53. Moreover, the information omitted from SCO’s disclosures is unquestionably within SCO’s control. (Rochkind Decl. ¶ 14 n.3.) The Court’s orders, as I understand them, direct SCO (in substantial part) to make its allegations specific. For example, to the extent SCO claims that IBM improperly used Dynix code and methods and concepts in contributing to Linux (and the vast majority of SCO’s allegations are of this type), the orders (on their face) require SCO to “describe, in detail, . . . with respect to any code or method plaintiff alleges or contends that IBM misappropriated or misused, the location of each portion of code or method in any product.” Only SCO knows what it alleges. No amount of investigation by IBM can connect the dots. Yet SCO systematically omitted this information from the 198 Items as described in Addendum B to my initial declaration.

54. In sum, Mr. Rochkind’s claim that SCO did not willfully withhold information in its possession with respect to version, file and line of code misses the point. As has been demonstrated, it is possible to obtain version, file and line information

21

with respect to methods and concepts if an effort to do so is undertaken. SCO, simply put, has willfully failed to undertake any such effort.

VII. CONCLUSION

55. Upon careful review of Mr. Rochkind’s declaration, I find that he fails even to address the central assertions in my opening declaration. He does not -- and could not -- dispute that SCO has not provided version, file and line information regarding each of the 198 Items at issue in IBM’s motion

56. There is no reason SCO could not have provided this information, including with respect to methods and concepts, for which it is even more necessary, not less necessary. SCO’s own discovery demands make the point.

57. Without the missing information, IBM lacks precisely the kind of information needed to conduct a basic inquiry relating to the facts of SCO’s claims. Given enough time, IBM might be able to discover some of the information SCO has failed to provide. It will never be able to find all of the information, however, because only SCO knows its allegations.

58. It is for this reason, in significant part, that I have no difficulty disagreeing with Mr. Rochkind’s statements regarding willfulness. To my knowledge, SCO has never argued (and could not credibly argue) that SCO’s failure to provide version, file and line information was an oversight.

22

59. I declare under the penalty of perjury that the foregoing is true and correct.

____[signature]____
Randall Davis

Date: 28 April 2006
Place: Cambridge, MA

23

CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of April, 2006, I electronically filed the foregoing Rebuttal Declaration of Randall Davis, in redacted form, with the Clerk of Court using the CM/ECF system, which sent notification of such filing to the following:

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

I further certify that on the 1 st day of May, 2006, a true and correct copy of the foregoing was sent by U.S. Mail, postage prepaid, to:

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

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

/s/ Todd M. Shaughnessy

24


1 Assuming 500 pages to a volume. Even the earliest and smallest version of Linux contains over 175,000 lines of text, the equivalent of over 3000 pages.

2 Each complete version of an operating system is typically given a distinct “release number,” as, for example, version 2.6.9 of Linux. The version counts given above list the number of distinct versions shown in the Declaration of Todd Shaughnessy, dated April 4, 2006; the total lines of text cited report all text contained in both the complete versions and any additional “patches” (i.e., incremental changes), as listed in the Shaughnessy Declaration.

3 Returning to our analogy of the two encyclopedias, imagine that the Americana accused the Britannica of copying a specific passage of Americana's text. Britannica could do an automated search for that text. But imagine instead if Americana accused Britannica of using what Americana claimed to be its proprietary “non-Eurocentric method of describing history” (i.e., ensuring a more global, inclusive world view), and then refused to give any information about which edition(s), volume(s) or page(s) in Britannica had done that. Consider the nature and difficulty of the task Britannica would face in trying to find places that had used that method.

4 Item 146 indicates yet another level of difficulty in deciphering SCO’s claims: even where SCO does specify file names (but still not versions or line numbers), IBM still has to guess what SCO is talking about: 4 of the 11 Linux filenames in SCO’s Item 146 are simply incorrect: there is no Linux file named arch/i386/oprofile/rmi_int.c, [redacted] arch/i386/oprofile/rmi_int.c, arch/i386/oprofile/op_counter.c, or [redacted] arch/i386/oprofile/op_x86_model.c. There are files whose names are close to these, and are likely what was intended, but this presents yet another step IBM must take to determine what SCO actually means.


  


Randall Davis Rebuttal Declaration with Exhibits - updated | 771 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Place Corrections Here
Authored by: Anonymous on Friday, April 28 2006 @ 10:33 PM EDT
Place Corrections Here

[ Reply to This | # ]

Red Dress, Red Dress, Where is that red dress
Authored by: Anonymous on Friday, April 28 2006 @ 10:37 PM EDT
<EOM>

[ Reply to This | # ]

OT Here if you would, please
Authored by: overshoot on Friday, April 28 2006 @ 10:41 PM EDT
Clicky HTML is always appreciated.

[ Reply to This | # ]

Non-anonymous corrections thread
Authored by: Kevin on Friday, April 28 2006 @ 10:49 PM EDT
Here's a correction thread visible to those who have "hide anonymous
posts" set.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: Anonymous on Friday, April 28 2006 @ 10:54 PM EDT
I don't believe that the court's requirements can be set out any clearer.

Tufty

[ Reply to This | # ]

OProfile
Authored by: AG on Friday, April 28 2006 @ 10:55 PM EDT
The footnote on page 17 (18 on the PDF) reveals that Item 146 centers around
the oprofile extension:

http://oprofile.sourceforge.net/

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: kaltekar on Friday, April 28 2006 @ 10:55 PM EDT
Mesa think Davis reads groklaw.

---
Through all the noise the Silence must be heard.

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: Anonymous on Friday, April 28 2006 @ 11:10 PM EDT
Randall really shredded through Mark Rochkind's declaration. It was a complete
and thorough smashing. BSF should really be afraid after this, because it
appears to be a near-certainty that the 198 items will get thrown out.

It was a very well written rebuttal, and covered nearly all the points of the
game, and in comparison to other things.

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: Anonymous on Friday, April 28 2006 @ 11:13 PM EDT
Wow... Just, wow... I *never* want to be on the receiving end of a document
like that. Davis has all but said that Rochkind is incompetent and a perjurer.

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: Anonymous on Friday, April 28 2006 @ 11:28 PM EDT
So this looks pretty clear. Is there any
real penalty for willfully failing to meet
a court order? Or is the "penalty" more delay
and another chance to submit an amended set
of complaints ("with specificity"). We shall
see I guess (but I'm not getting my hopes up).

[ Reply to This | # ]

Love it! See paragraph 19
Authored by: Anonymous on Friday, April 28 2006 @ 11:50 PM EDT
The pointing out of SCO's own definition of "identify" is embarassingly pointed as anyone could wish:

19. Note that the Court's orders required no more of SCO than SCO required of IBM. In its First Request for Production of Documents, SCO defined the term "identify" as follows:

"DEFINITIONS AND INSTRUCTIONS...

The term "identify" shall mean: ...

e. in the case of alleged trade secrets or confidential or proprietary information, whether comuter 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." (Exhibit B (emphasis added).)

I understand that SCO subsequently incorporated this identical definition in eight additional document requests, five additional sets of interrogatories, seven 30(b)(6) deposition notices, and three requests for admission, the latest of which was served on March 10, 2006. Thus, SCO itself has continuously demanded the same degree of specificity ordered by the Court and requested by IBM."

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: tredman on Saturday, April 29 2006 @ 12:01 AM EDT
Knowing SCO, they'll probably try to sue Randall Davis next for copyright
infringement of Rochkind's book, by including excerts in an exhibit.

It sounds silly and stupid, but this how copyright law today seems to be
mutating. All it would take is for Ralph Yarro to "sponsor" another
law against copyright infringent and hope that it can be applied retroactively.

Watch out, the rabbit hole is over there, just behind you...


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

[ Reply to This | # ]

So this is it then?
Authored by: Ninthwave on Saturday, April 29 2006 @ 12:14 AM EDT
All is going away in a puff of smoke now?


What happens next is there anything that can happen next?

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

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: meshuggeneh on Saturday, April 29 2006 @ 12:38 AM EDT
Well, that puts the kibosh on Rochkind's little red wagon, innit?

Oh, and SCO's gonna hear from the judge on this one...

[ Reply to This | # ]

EFF vs. AT&T
Authored by: Anonymous on Saturday, April 29 2006 @ 12:52 AM EDT
PJ, are you going to comment on this one?

[ Reply to This | # ]

Fave Quotes
Authored by: Anonymous on Saturday, April 29 2006 @ 12:52 AM EDT
Randall Davis' Rebutall Declaration contains some great lines. Here are a few of
my fave quotes:

"Mr. Rochkind suggests that all Items of allegedly misused of code are
disclosed by SCO with appropriate line specificity. That is unfortunately
patently false..."

"The mere fact that a method can be discussed generally without referring
to source code does not mean that its corresponding source code cannot be
identified. It can..."

"...SCO deliberately created a different standard to apply to itself than
it demanded of IBM..."

"To my knowledge, SCO has never argued (and could not credibly argue) that
SCO’s failure to provide version, file and line information was an
oversight."

I'm sure as y'all go through Randall Davis' Rebutall Declaration you'll find
your own treasures to share here.

--

[ Reply to This | # ]

  • Fave Quotes - Authored by: Anonymous on Saturday, April 29 2006 @ 05:21 AM EDT
  • Fave Quotes - Authored by: Anonymous on Saturday, April 29 2006 @ 09:46 AM EDT
Brilliant lawyering, but...
Authored by: Reven on Saturday, April 29 2006 @ 01:33 AM EDT
This is brilliant lawyering here. SCO made a bad gaffe when they tried to fit in Rochkind's declaration. IBM immediately challenged their right to do so, yet in court said they had no problem with it as long as they got to respond. So, since they knew they would get the absolute last word, instead of submitting a standard expert declaration, they submit what is essentially a full legal brief.

I particularly loved ¶50's "I'm no legal expert, so I used the definition set out in this case law as provided by IBM's lawyers" - what a great way to worm in case law citations in an expert statement.

This really should have been called "Sur-Reply Memo In Further Support of Motion to Limit SCO's Claims" because that's really what it is.

I guess this is what SCO gets for trying to sneak in Rochkind's declaration. Still, while I feel IBM's position with respect to the 189 items is right, and even though SCO was wrong to try and sneak in Rochkind's declaration the way they did, this leaves a bad taste in my mouth. It just feels a little wrong - a punch below the belt, as PJ put it a while ago. This wasn't an expert's report, it was a legal brief, and not only was this motion supposed to have already been fully briefed, it was already argued in court.

---
Ex Turbo Modestum

[ Reply to This | # ]

Davis Rebuttal Declarification with Exzibits and Thoroughness
Authored by: webster on Saturday, April 29 2006 @ 01:36 AM EDT
He repeated that there were no versions, files and lines specified for the
abusive code. He pint out that Rochkind say that there were no versions, files
or lines specified either. He pint out that Rochkind say that versions, files
and lines were not necessary despite being ordered by her Judgeship.

He pint out that SCO's own people (Gupta) opine that versions, file and line are
necessary to identify concepts and methods. He pint out that Rochkind hisself
in his ownsome books has used lines of code to ID-ify Conceptions and
methodogies. He say that if the SCOfolk can't specialify where in the code this
stuff is, IBM would have to speckoolate agin itself, and then defend agin its
own speckoolatin's. He use SCO own words agin 'em. It sure seems like they
don't have nuthin'.

More than that Davis say SCO they have to spectify the conception --where they
buy it or when they make it up. And did they give it away already, And who put
it in the Dienix and the Axe and from there to the Lunix and did that hurt the
SCO. Widout de lines all this is impossible. Methinks Davis say Rochkind give
us de bidnes with a sophistocratic nonresponse.

And Mista Davis say he a bigshot and that he do this a lot and he do it for
judges and he testify in the big original case. Dat som big medicine.

---
webster

[ Reply to This | # ]

"Methods and Concepts" protected?
Authored by: Anonymous on Saturday, April 29 2006 @ 02:12 AM EDT
as far as I recall, "methods and concepts" are not protectable under
copyright law so why on earth are SCO trying to use them?

[ Reply to This | # ]

not just "methods and concepts"
Authored by: xtifr on Saturday, April 29 2006 @ 02:36 AM EDT

I particularly liked this part:

28. Mr. Rochkind suggests that all Items of allegedly misused of code are disclosed by SCO with appropriate line specificity. That is unfortunately patently false and Mr. Rochkind is ignoring dozens of the 198 challenged Items that do concern alleged code misuse. In fact, many of the Items that clearly concern the alleged misuse of code comprise SCO’s most imprecise allegations.
(Emphasis mine.)

Wow, it's like SCO doesn't even know what it is that they're accusing IBM of having done! :)

I can't say I'm surprised that the accusations of code misuse are the most vague, as those would be, if more specific, the easiest for IBM to rebut. I mean, doesn't Davis understand? If SCO makes it possible for IBM to defend themselves, they might win, and SCO can't be having that! :)

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light.

[ Reply to This | # ]

Now THAT'S specificity
Authored by: tyche on Saturday, April 29 2006 @ 02:52 AM EDT
This man reminds me of the type of research my college professors taught me to
do. Only he carries it out to a much further degree than was ever required of
me. Of course, I only got a Bachelor's degree

Craig
Tyche

---
"Under what circumstances is it moral for a group to do that which is not moral
for a member of that group to do alone?"
"The Moon Is A Harsh Mistress",R.A.H

[ Reply to This | # ]

This might force a ruling on SCO's legal theories
Authored by: Mark Levitt on Saturday, April 29 2006 @ 03:35 AM EDT
Whew. After all this time, we're getting down to the meat of things. I don't
just mean the code, but SCO's entire legal theory.

Consider: What SCO has actually been saying all along is that IBM not only
copied code, but gave Linux "secret sauce" from SysV, AIX, and Dynix.

Remember all of Darl's examples about novels where cases are won and lost based
on plot lines or character similarities? SCO thinks this standard should apply
to code.

SCO also believes that, through their contract, they have a right to prevent IBM
from disclosing any knowledge gained from looking at the source code of SysV,
AIX, and Dynix.

This is why SCO argues that they only have to provide an e-mail from an IBM
employee discussing a technique to prove their alligation.

This is critically important to understand: SCO is NOT just alleging that IBM
copied code. SCO is alleging that IBM wasn't allowed to use any knowledge gained
from having looked at SysV.

Now, of course, you and I know that SCO is full of fantasy. The standard for a
copyright case involving a novel is not the same as a standard involving source
code. There are no structures in a novel that are dictated by external forces as
their are in source code, for example.

SCO also knows that their theory of the contract is bunk.

But here's the thing: SCO has never had to directly face the question of whether
its theories have any merit. Why? Well, it's a chicken and egg problem.

SCO argues that IBM wasn't allowed to disclose even ideas (per the contract).
However, because this case is about software, the court has forced them to
disclose what software they're talking about. But, SCO can't, becuase they are
trying to claim some "meta-rights" over and above copyright, based on
the language of the contract.

This might have come out at the first summary judgement phase. SCO provided
evidence of IBM passing on knowledge, etc. IBM's experts provided evidence that,
once you apply the abstract filtration tests, there wasn't anything left. Judge
Kimball made it clear that SCO hadn't provided any evidence. Clearly, Kimball
didn't think SCO's theory meant they had a case. I.e., they had to show some
actual code. BUT, he couldn't grant IBM's summary judgement motion because SCO
was claiming they hadn't had a chance to gather all the material.

Now finally SCO has no more wiggle room. They have all the AIX, Dynix, SysV code
they asked for (and a lot more than they need). So their declaration was
basically their argument: We don't have to provide code for methods and concepts
becuase IBM wasn't allowed to even send an e-mail describing it.

I.e., SCO believes that the mere mention in an e-mail of profiling techniques by
IBM *is* the act itself.

So, what happens now? I suspect that SCO will be forced to finally come out and
say that this is the legal theory they are relying on (at least for these 198
items). SCO will be laughed out of court.

Then, the remaining items will be shown to be either public domain, BSD code, or
unprotectable ideas, etc.

I don't think the end is near yet, but I think I see the light at the end of the
tunnel.

[ Reply to This | # ]

Ninjutsu say nothing is impossible
Authored by: Anonymous on Saturday, April 29 2006 @ 04:50 AM EDT
Sticking my neck out, devil's advocate, and all that, given the normal
taxonomy of source code files, a man with Mr Randall's knowledge
and skill ought to be able to locate any given "method and concept"
to some particular areas of code, and greatly reduce the time required
to find files and lines. Only the judge should be able to say if the task
is "untenable" for a Respondent in such a case as this.

However it is plain as day that SCO are engaged in a game of
"do as I say, not as I do". When an expert witness has to tell the
court assembled that the Emperor has no clothes, then it's
Game over, Man

[ Reply to This | # ]

SCO should be sanctioned!
Authored by: Anonymous on Saturday, April 29 2006 @ 05:19 AM EDT
This is outrageous....

SCO has blatantly contradicted itself.... as clearly shown with SCO's changing
definition of "identify". SCO want IBM to provide line numbers and
file versions, yet seem to think they don't need to.

The judge should give SCO an earful.

[ Reply to This | # ]

Exhibit D is nice...
Authored by: Anonymous on Saturday, April 29 2006 @ 05:21 AM EDT
There are source code examples everywhere. But the part of the book was
carefully selected: It is about error handling. And as far as I can see, he
describes many of the concepts that SCO claims rights to...

[ Reply to This | # ]

Item 146 - Paul McKenney document
Authored by: Anonymous on Saturday, April 29 2006 @ 06:21 AM EDT
I think that this Paul McKenney document could be the one referred to in
44. Examining the only Item specifically mentioned in Mr. Rochkind’s declaration, Item 146, makes the point. In Item 146, SCO complains about IBM’s [redacted] by reference to: (1) an email asking for help with a performance problem, (2) an email response with a suggested analysis technique (differential profiling), (3) a technical paper written by Paul McKenney, (4) a URL reference to scripts that might be of help, and (5) a list of 11 Linux files (names only, no versions or lines). Contrary to Mr. Rochkind’s claim that I ignored these materials, in fact it was by examining them closely that I concluded, as stated in my original declaration, that SCO has provided no meaningful information about what IBM is alleged to have done wrong.

It would seem to be an update to his paper submitted to MASCOTS'95, mentioned in
45. The claim in Item 146 is sufficiently vague as to lead to several different interpretations. ... * Mr. Rochkind points out that there is [redacted] Indeed there is, and the paper was published in the open literature in 1995 (the 1995 IEEE MASCOTS Symposium), six years prior to the email in question. ...

[ Reply to This | # ]

because they got nothing
Authored by: Anonymous on Saturday, April 29 2006 @ 06:26 AM EDT
They have no patents, they dropped the trade secret claims, and in *3 years* of
this litigation they have not managed to cough up even a single copyright
infringement claim. This "methods and concepts" theory is all they
got.

[ Reply to This | # ]

Do we know why all the examples are sealed and therefore redacted here?
Authored by: Anonymous on Saturday, April 29 2006 @ 07:07 AM EDT
I know that they have to be redacted in the declaration because the original
material was filed under seal by SCO.

But do we know why that is so (other than SCO being generally secretive) and why
IBM haven't challenged it?

It would seem to be against IBM's interests for the allegations to be secret,
given that both the Groklaw and Linux communities would make short work of
identifying the true origins of the lines or files (where they are cited).

[ Reply to This | # ]

Interesting snippet from Dr Davis' biog at ...
Authored by: Anonymous on Saturday, April 29 2006 @ 07:34 AM EDT
http://people.csail.mit.edu/davis/bio.pdf

He has served as an expert in a variety of cases involving software, including
the investigation by the Department of Justice of the Inslaw matter (40 Fed. Cl.
843; 1998 U.S. Claims), where he investigated allegations of copyright theft and
cover-up by the Federal Bureau of Investigation, the National Security Agency,
the Drug Enforcement Agency, the United States Customs Service, and the Defense
Intelligence Agency.

This guy investigates government agencies and all he's got to do this time is
sort out an attempted scam by a tiny little software company.

He probably worked out most of what he needed to say over lunch!

[ Reply to This | # ]

What I don't understand...
Authored by: Anonymous on Saturday, April 29 2006 @ 07:57 AM EDT
why is SCO still not broke? I thought they were supposed to have run out of
money long ago?

[ Reply to This | # ]

3rd party motion to disclose?
Authored by: mwexler on Saturday, April 29 2006 @ 09:36 AM EDT
I am wondering, would it make part for some 3rd party with an interest in Linux
(Linus, Redhat, any user of Linux) to make a motion to unseal the portion (if
any) of SCO's listed of misused materials that specificially identfies portions
of Linux as infringing?
I would think that any user of Linux would have standing in this case and the
list of items that are in Linux that are infringing can hardly be a trade
secret.
Of course SCO could declare there are no infringing portions...
:-)

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: Anonymous on Saturday, April 29 2006 @ 09:44 AM EDT
...the method suggests ways of finding performance bottlenecks by counting the events that happen inside a program and then analyzing those counts.
So SCO are trying to claim the Linux folks couldn't work out how to write a statistical profiler without stealing code from System V? That seems . . . ambitious, to say the least. (Aside: there doesn't seem to be much point in redacting something's name and leaving the description).

[ Reply to This | # ]

Randall Davis Rebuttal Declaration with Exhibits
Authored by: AlanMilnes on Saturday, April 29 2006 @ 09:44 AM EDT
Without version, file and line information concerning SCO’s allegations, it is simply not possible fully to understand its claims, which puts IBM at an extraordinary disadvantage.

I'm not a lawyer but this screams a message to the judge me - if you deny this claim there will be an appeal and you will be overturned, this is not mischief making by IBM this is real so think carefully.

Any of the lawyer types care to comment?

[ Reply to This | # ]

Reductio ad absurdum?
Authored by: Jude on Saturday, April 29 2006 @ 09:47 AM EDT
Is there any legal equivalent to a reductio ad absurdum argument?

If SCO's complaint regarding the profiling email were to stand up, then it would
seem that just about any tech support that IBM gave to a Dynix or AIX customer
who was not also a source code licensee would be a breach of contract. I think
it would be difficult to argue that either IBM or AT&T intended such an
interpretation of the contract language.

What does this do for (or to) SCO's theory that IBM is required to maintain such
strict confidentiality?

[ Reply to This | # ]

But will it work?
Authored by: Anonymous on Saturday, April 29 2006 @ 10:26 AM EDT
Of course scox's claims are plainly ridiculuos. And, of course, IBM completely
slams every idiotic scox claim. Isn't that the way it always goes?

But what matters is what the judges decide. I happen to think that these judges
are hugely biased in favor of scox.

Logically, any reasonable person can easily see that IBM should win on every
count. But I just can't see that happening.


[ Reply to This | # ]

bring in the psychics
Authored by: Anonymous on Saturday, April 29 2006 @ 11:36 AM EDT
Sound like IBM needs to bring some specialists. Maybe while David Blaine is
floating in the box he could be divining the meaning of SCO.

[ Reply to This | # ]

Something I don't think has been mentioned here yet
Authored by: Anonymous on Saturday, April 29 2006 @ 11:51 AM EDT
We're concentrating at the moment on Dr Davis' skewering of Mr Rochkind: his
declaration, his legal theories, his interesting standards of proof - and the
imminent demise of both those arguments and the 198 non-compliant allegations.

That leaves the remainder of SCO's allegations which, on the face of it, do
comply with the court's orders regarding specificity.

Who do you think is going to be in charge of shredding those remaining
complaints, that are not part of this motion?

Hopefully, we've just been treated to watching Dr Davis warming up. With even
more entertaining expert testimony still to come!

[ Reply to This | # ]

Randall Davis -- EXPERT
Authored by: grouch on Saturday, April 29 2006 @ 12:00 PM EDT

The methods and concepts employed in an operating system (or any computer program) are in the source code. It could not be otherwise: The source code of a program specifies all of its possible behavior. If that behavior truly embodies a method, that method must be expressed in specific lines of the source code; there is just no other way to do it.

-- Randall Davis

It looks to me like Mr. Davis actually knows what he's talking about. I never could figure out how Mr. Rochkind's imaginary operating system could operate with methods and concepts not expressed in source code. Having an operating system implement methods and concepts by way of some mystical contract cloud hovering over every computer running the operating system just seems a bit far-fetched, to my non-expert mind.

---
-- grouch

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

[ Reply to This | # ]

What Can SCO Be Thinking? Looking Two Moves Ahead
Authored by: rdc3 on Saturday, April 29 2006 @ 12:07 PM EDT

The Randall Davis rebuttal is compelling. But I find it hard to believe that SCO does not have a strategy in mind to present in oral argument. I also find it hard to believe that IBM isn't aware of this and hasn't got plans in response to what SCO might try.

Going way out on a limb, and with appropriate IANAL disclaimers, here's what I imagine may transpire:

  • [Judge to SCO]: IBM has presented a strong argument in favor of its motion. You have utterly failed to follow instructions in presenting your allegations with the required specificity. Why should I not just grant IBM's motion in its entireity?
  • [SCO to Judge:] Well, we admit that we haven't identified specifics of source code identification in some cases. But those are cases in which, we've got something even better! We've got admissions of disclosures! Naming names! You don't have to guess that there's a disclosure, just based on source code similarity; we've got the smoking gun!. So surely it's a simple matter for IBM to base its defense on interviewing the shooters we've identified. And besides, if you grant IBM's motion in its entireity, you'll effectively be dismissing *all* our methods and concepts causes of action. That must wait for the partial summary judgment phase.
  • [IBM interjection:] But many of those items don't adequately identify a specific alleged "shooter" ...
  • [Judge to SCO:] Right. We'll toss the items that don't specifically identify an IBM employee making the disclosure.
  • [Judge to IBM:] Do you have anything further?
  • [IBM (with long-prepared answer present in a tone of utmost reasonablenss):] Yes, your honor. We can defend those items that allege a specific IBM employee making a disclosure of these specific items with respect to claimed SysV methods and concepts (provides list to judge). But when the allegation refers to AIX or Dynix methods or concepts, we are simply unable to mount our defence, which depends on disproving a "derivative work" link between SysV and AIX or Dynix. SCO has failed to provide version, file and line information on either end of these links. If we knew one end of the link with specificity, we might be able to defend ourselves (with some considerable expense, however), but it's simply impossible with links unanchored on either end.
  • [SCO interjection:] But the AIX and Dynix software products are based on SysV and are hence derivative works by definition.
  • [IBM rebuttal:] That only applies to AIX and Dynix as integrated binaries. But that doesn't make the individual source code files in AIX or Dynix derivative works without a specific link to SysV.
  • [Judge:] Right. Here's my decision. We toss all items identified in this motion that fail to identify an IBM employee making a disclosure. We also toss those items making allegations with respect to methods and concepts specifically of AIX or Dynix without a specific link to SysV. IBM to draft the text of the order.

[ Reply to This | # ]

Hugely off-topic corrections
Authored by: Arnold.the.Frog on Saturday, April 29 2006 @ 02:52 PM EDT

While I was noticing...
this page has "Marriottt" for "Marriott"

this page has "Deloitte & Toche" for "Deloitte & Touche"

[ Reply to This | # ]

It doesn't hurt us at all...
Authored by: Anonymous on Saturday, April 29 2006 @ 03:40 PM EDT
...as long as we get to respond!

Gotta love Marriott's sense of humor!

[ Reply to This | # ]

Advanced Unix Programming
Authored by: Anonymous on Saturday, April 29 2006 @ 03:58 PM EDT
Wow, Marc Rochkind's own book uses source code to illustrate methods and
concepts. I didn't think you could do that. OT: should SCO sue their own
witness for giving away trade secrets. Seriously, would anyone be surprised if
some of the redacted items include methods and concepts described in Marc's
book?

[ Reply to This | # ]

Randall'd
Authored by: SilverWave on Saturday, April 29 2006 @ 06:01 PM EDT
For your argument to be eviscerated.

Ouch that reply has to hurt... I live in the UK and I heard the <SLAP>
over here ;)


---
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 | # ]

The Killer Exhibit D
Authored by: SilverWave on Saturday, April 29 2006 @ 06:30 PM EDT
This is the killer... his own book is used to prove how much you need to use
source code.... look at the headers its all "Fundamental Concepts"
followed by the Concept and PAGES of source code.

Wow!


---
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 | # ]

PJ doesn't even need to explain
Authored by: Anonymous on Saturday, April 29 2006 @ 09:41 PM EDT
Randall Davis' rebuttall is so clear and to the point that even PJ hasn't even
added her usual pontification. PJ is left speechless? :-)

[ Reply to This | # ]

  • No - Authored by: Anonymous on Saturday, April 29 2006 @ 09:51 PM EDT
    • No - Authored by: Anonymous on Sunday, April 30 2006 @ 06:45 PM EDT
  • Worth every penny - Authored by: mr.mighty on Saturday, April 29 2006 @ 11:53 PM EDT
  • PJ doesn't even need to explain - Authored by: Anonymous on Sunday, April 30 2006 @ 01:00 AM EDT
It's Sunday so how about dinner
Authored by: Anonymous on Sunday, April 30 2006 @ 01:11 AM EDT
Electric Dipole Moment Propulsion System
  • Electric Dipole Spacecraft
  • Cavitating Oil Hyperspace Energy Generator
  • Hyperspace Energy Generator
  • Hyperspace Torque Generator
  • Rotor Inductance Propulsion System
  • Rotating Electrostatic Propulsion System
  • Bobbin Electromagnetic Field Propulsion Vehicle
  • Electric Dipole Moment Propulsion System
  • Magnetic Vortex Wormhole Generator
  • [ Reply to This | # ]

    An alternate theory on Marc Rochkind’s testimony.
    Authored by: Brian S. on Sunday, April 30 2006 @ 01:12 AM EDT

    I don't know if it's been put forward before:


    PJ:

    Poor Mr. Rochkind has a number of problems, as far as I can see.



    Alternate theory:

    SCOG have a number of problems.



    Mark Rochkind:

    I was retained by counsel to SCO in May 2005, to analyze the technical evidence in this case, to help prepare the preliminary October and December 2005 Disclosure of Material misused by IBM (the "December Submission") and to serve as a consultant and expert witness. I have since been asked to review the declaration recently submitted by Professor Randall Davis, and this declaration is submitted as a result of that review...

    And so he was. BSF asked him to be their technical expert for a fee. He may or may not have been known for his rather unusual opinions about methods and concepts but he is certainly an expert on "Unix and much of it's history". But he spent most of his testimony attempting to explain and justify his opinion to the Judge

    Is that what made it so confusing to read? Was it an attempt to answer an unknown question asked by the Judge about the "December Submission", "in brackets", apart from the fact that it "happened around Christmas"?



    7. I strongly disagree with Professor Davis's assertion (at paragraph 11) that SCO has failed to identify with specificity 198 challenged items in the December Submission...

    Is "items" a funny word?

    Anyway, he's welcome to hold a "minority opinion"(of 1? :). It's not illegal. Techies spend quite a lot of time argueing as it is. I may have a different opinion and so may thousands of others including an undisputed expert; Professor Randall Davis.



    IBM alleges in its reply brief that "it is beyond reasonable debate that SCO acted willfully in not specifying its claims" (at 10) and that "SCO has declined, as a practical matter, to tell IBM what is in dispute"...

    Everbody and his dog KNOWS THAT SCOG LIED. (Even Laura Didio and Rob Enderle)



    I am familiar with the technical evidence. I played the largest, although not an exclusive, role in assembling it, so I am in the best position to know that IBM's allegation is false. For each of the 294 Items, I did everything I could to ensure that everything we had was disclosed and that it was organized in the most accessible possible manner. Counsel to SCO made it very clear that that was what they wanted me to do....

    Why say this?

    He's made sure that he has given the court everthing they had. BSF instructed him to leave nothing out. Even if it was full of holes. It was literally all they had.



    Judge: Is that all you've got?



    The langauge of M.R. is totally defensive in a supposedly accusatory document.



    I've said before that "something happened around Christmas" and I still think it did, just maybe a little bit different from what I have said previously.

    Maybe, the faulty subpoenas to Intel et al were the result of a rushed last minute speculative idea which BSF had realised drew a blank before the faults in the subpoenas were even discovered.

    Maybe that could explain the Judges "leniency"? Maybe BSF were under the "courts instructions" to "leave nothing out".

    Maybe BSF had told the Court they suspected their client following presentation of the "December Submission"?

    Maybe the Court told them to give their client the "best shot" they could until the end of discovery (the VERY end as it transpired)

    Maybe that's why Darl was in Court?

    Maybe he was under the court's instructions? Could it explain some of his "attitude"?



    Judge:

    Is that all you've got?


    BSF:

    Yes.

    Judge to IBM:

    Do you want me to allow this?

    IBM:

    We don't mind as long as our expert is allowed to answer, it won't take long.

    Judge:

    O.K.

    Today we have seen Professor Davis' response:

    I've never seen rubbish like this in all my years of giving "expert opinion". It's absolute clap-trap. They have absolutely "nothing".



    There is only one entity to which Judge Wells can pose the next question.


    It's SCOG.


    I wonder what question she will ask Darl?



    :)

    Just IMHO

    Lots of maybes

    Well I've always been prepared to put my neck on the line.

    I can only be wrong.

    :)

    I think SCOG have been deserted by their lawyers.

    Is it possible for the Court to actively pursue SCOG's apparent abuse of the law at this point?

    Brian S.

    [ Reply to This | # ]

    What happened to my post?
    Authored by: Anonymous on Sunday, April 30 2006 @ 02:41 AM EDT
    I made a perfectly reasonable post saying that I believe that SCO have actually
    got what they wanted, which is to troll IBM into validating their 11th hour
    inclusion of methods and concepts instead of asking Judge Wells to throw out all
    such claims on the basis that it's far too late to bring a whole new argument to
    the case.

    Are we in such a state of cognitive dissonance now that any posts that aren't
    essentially "Whoo! IBM! Go Linux!" get deleted rather than debated?
    That's rather disappointing.

    [ Reply to This | # ]

    Item 146 Trail
    Authored by: GLJason on Sunday, April 30 2006 @ 05:38 AM EDT
    I think IBM has pulled a great coup here. Could they have intentionally filed an expert declaration with their reply that didn't include specifics to get SCO to file a response and then be able clobber them with the details? Item 146 is specifically mentioned in both of Dr. Davis's declarations, Mr. Rochkind's declaration, and by SCO at the hearing.

    Here is the simple statement from the declaration of Dr. Davis in IBM's Reply Memo.

    18. To take just one example (of many), in item 146, SCO identifies IBM's "Use of Dynix/ptx for Linux development" by reference to an email that concerns "performance and profiling" and lists 11 Linux files without mentioning which versions of Linux these files come from.
    Pretty simple huh? He doesn't go into detail in all the ways it is deficient, just a simple statement saying the only thing provided was the names of 11 Linux files.

    That gets Stuart Singer to mention it at the hearing (from the report of the hearing (chris's)):

    He drew the court's attention to item 146, indicating it's for a method and concept. It references an article by "McKinney", an old Sequent employee, and points to an IBM web page that they don't have access to. The article is about "Differential Profiling" and refers to scripts on the website. The item has emails between the person making the Linux submission and an individual familiar with the methods and concepts of the protected code. "So we have the identities of the individual making the disclosure, the emails, and reference to code for the methods and concepts."
    Mr. Rochkind's declaration is incredible in that when required to identify versions of files and lines of code, he simply says:
    Footnote 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.
    So instead of doing what is required, saying "In version 2.4.19 of the kernel the whole of these files is based on the method and concept at issue", he says "in most cases" they will be in any version of Linux issued after the disclosure. If he was actually looking at Linux source code, the version would be SIMPLE to list. He would have to be looking at some version of Linux, why NOT state the version?

    The part about item 146 is probably just a recitation of what was discussed in court, most of it (over a page worth) is redacted:

    13. Even the one example cited by Professor Davis in his Declaration, Item 146, does not support his point that it "provides no meaningful information about what IBM is alleged to have done wrong."

    REDACTED

    That opens it up for Dr. Davis to clobber them, and after the hearing so SCO can't even rebut it in court:
    45. The claim in Item 146 is sufficiently vague as to lead to several different interpretations. As it takes several pages to analyze all of the possible interpretations, and to point out all of Mr. Rochkind’s errors, I have put the analysis in Exhibit F. The details can be found there; the summary points are simple enough:
    • Mr. Rochkind points out that the email cited in Item 146 contains [redacted] and [redacted] He conveniently overlooks the fact that the [redacted] are all the “before” version of the code. That is, the [redacted] contain the code that didn’t work well enough, the code that the application of differential profiling was supposed to help repair. There is in fact no code cited that is alleged actually to contain the use of the method.
    • Mr. Rochkind points out that there is [redacted] Indeed there is, and the paper was published in the open literature in 1995 (the 1995 IEEE MASCOTS Symposium), six years prior to the email in question.
    • As Mr. Rochkind points out, there are [redacted] specified in Item 146, but, as he omits to mention, no specific version of Linux is cited. Even so, unfortunately for his position, none of these files appears to deal with differential profiling.

    46. As described in Exhibit F, rather than clearly state its claims to Item 146, SCO identifies a series of dots and leaves IBM to try to connect them. The problem is they do not connect. At most they leave IBM to guess as to which of any number of claims SCO might actually be making. To defend itself, IBM is left to respond not just to what is at issue -- which is not clear -- but to all of the possibilities. For Items like Item 146, there are at least a handful of possibilities. As to other items, the possibilities are almost innumerable. When SCO accuses IBM of misusing the internals of System V (e.g., Item 180) or of misusing its experience with Dynix/ptx, for example, SCO accuses IBM of misusing any one of the millions of lines of code and the thousands of methods and concepts contained in these operating systems.

    So after Rochkind's and Singer's whining "yeah so there is plenty of detail in item 146", we find out that not only was there insufficient detail ordered by the court, but also that the information has been public since a paper was published in 1995, and that the files that were identified had nothing to do with the vauge method the item was apparently about.

    [ Reply to This | # ]

    Davis didn't address this point as forcefully as he could have done ...
    Authored by: Felix_the_Mac on Sunday, April 30 2006 @ 09:22 AM EDT
    From Chris Brown's report on the hearing:

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

    I think that this argument could have been made more strongly in Davis's
    declaration.

    He included a table showing that of the 198 items one specified a System V
    version and one (maybe the same item) specified a System V file.

    However the nature of the table (i.e. listing all 4 OSes together) obscured the
    important point that it is only Sys V over which SCO can claim sole rights. Any
    code in AIX/Dynix may be SCO protected code or IBM in-house code.

    Any item from AIX/Dynix/Linux must be shown to have been derived from System V
    for it to be an issue in this case.

    So, a paragraph highlighting the fact that, for the 198 items, not a single one
    shows with specificity which System V code is at issue would have been useful.


    [ Reply to This | # ]

    I like the way he leaves the bit about the Linux filenames until the very last footnote
    Authored by: Anonymous on Sunday, April 30 2006 @ 09:32 AM EDT
    "Oh and by the way Your Honor, on top of all that they're talking about
    files that don't even exist. Sloppy."

    Priceless!

    [ Reply to This | # ]

    Glaring Omission
    Authored by: sk43 on Sunday, April 30 2006 @ 03:15 PM EDT
    It is puzzling that Randall did not point to IBM's own section of Definitions in
    its Interrogatories, where IBM also defines what it means to "identify ...
    methods." [For the record, IBM and SCO give identical definitions.] The
    reason to do so is that IBM's Interrogatory 1 begins:

    "Please identify, with specificity (by product, file and line of code,
    where appropriate) ..."

    which leaves a giant loophole - who is to decide what is "appropriate"
    for methods or concepts? It is IBM's definition of "identify" (and
    not SCO's definition or the remaining interrogatories or Judge Wells orders)
    that closes this loophole and makes it unambiguous that, for the purpose of
    IBM's interrogatories, methods are to be identified by lines of code.

    [ Reply to This | # ]

    Randall Davis Rebuttal Declaration with Exhibits - updated
    Authored by: Anonymous on Sunday, April 30 2006 @ 04:45 PM EDT
    Umm.. I've sat in a couple of juries, one civil, one criminal. I distinctly
    remember that the judges, in their initial instructions, always emphasized that
    they were the arbitiers of the Law, and that the juries were the arbiters of the
    Facts. That is, the jury was allowed to make a determination about whether the
    evidence was believable or not, or whether the witnesses were believable or not,
    and so on. But, it if was a question of the law, or what the law said or
    required, the judges' word ruled.

    Now, up to this point in the trial, it seems to me that the lawyers have been
    having fun throwing paper and motions back and forth like confetti and making
    arguments in front of the judge(s) about what's proper or not proper, and it
    seems like every single one of these arguments or motions have had case law and
    precedents cited in every argument. Hence, what the lawyers seem to have been
    doing is arguing points about the law. And, when the judge(s) make their
    rulings, those rulings are based upon precedents or legal matters almost
    entirely.

    However, what we seem to have here are competing "Expert Witnesses."
    With the possible exception regarding Mr. Davis's comments about
    "willfully", it seems to me that these experts are talking about
    Facts, or perhaps different interpretations of the Facts. Or, perhaps, different
    interpretations of the evidence. (I Am Not A Lawyer, as if you out there haven't
    guessed that, so far, so please excuse my tenous grasp of the terms.)

    So: >Can< the judges rule on these kinds of facts? Or does this kind of
    competing expert witnesses interpretations require that a jury be called in?
    Especially as SCO asked for a jury trial? Could somebody straighten me out on
    this?

    [ Reply to This | # ]

    Randall Davis Rebuttal Declaration with Exhibits - updated
    Authored by: Alan(UK) on Sunday, April 30 2006 @ 04:50 PM EDT
    ...a court can hardly evaluate at summary judgment what cannot be defined.

    This statement indicates very clearly why IBM needs to clear this garbage out of the way at this stage; it is not just that it whittles SCO's case away.

    It leaves Judge Wells in an interesting position. Throwing out a substantial proportion of SCO's case before Judge Kimball even has a chance of making a summary judgement is a very drastic step not to be taken lightly. But now IBM is as good as saying, 'You cannot possibly pass this to Judge Kimball without sorting this out first.'

    IANAL but it seems to me that the only thing she can say apart from 'that's it, no more' is to give SCO a last chance to reveal the required information if they know it or to drop those claims.

    [ Reply to This | # ]

    Why Marc Rochkind's declaration disturbs me
    Authored by: Anonymous on Sunday, April 30 2006 @ 10:29 PM EDT
    I have been a long time reader of Groklaw for 2 reasons:

    1. The enjoyment of following the unfolding of a real life drama.
    2. Observing the impact the legal environment is making to technology due to
    increasing financial stakes.

    Without going into details about SCO or IBM, I really don’t see a clear sinner
    or saint here. Both sides are in pursuit financial benefit in their own way. For
    example, IBM is awarded over 2,000 patents a year. Their intention? Protect
    their multi-billion dollar investment in research by patenting technology and
    therefore having to option of controlling the ways others use it and how much
    they pay. But, I am not sure all on this site would feel the same about IBM if
    it “owned” Unix and the shoe was on the other foot. So, what is SCO doing?
    Protecting their investment. Stupid games I am sure but having observed a few
    other legal battles, I am not particularly disturbed by the antics here.

    What I find very disturbing is how difficult a battle it is to prove or disprove
    any type of infringement of ownership rights on technology. Without being “in”
    the industry the judges and lawyers must have a very difficult time telling fact
    from fiction and relevance from irrelevance.

    Consider this C code snippet I wrote many moons ago. It constructs a string with
    a comma between the numbers from 0 to 9:

    int i;
    char a[256];
    a[0]=0;
    for (i=0;i<10;i++)
    {
    if (i)
    strcat(a,",");
    _itoa(i,&a[strlen(a)],10);
    }

    I thought it was pretty neat piece of code when I wrote it. Undoubtedly many
    have come up independently with similar code structure and many more with an
    even more elegant solution when presented with a similar problem. No controversy
    here.

    So what if this code is part of a 10 megaline project? What if the company
    selling licenses to the code retains derivative rights? What is this code
    snippet is not only an obvious solution but an ineffective one? What if the
    licensee doesn’t need the licensed code anymore and embarks on a brand new code
    path with similar problems to solve? How to explain this to a judge? How much
    will it cost?

    Common sense answers those questions given this example. What worries me is the
    millions of dollars spent here and in other cases obfuscating some rather simple
    issues and impossibly confusing the complex ones.

    From my own point of view (albeit very limited due to the heavy redaction) this
    is a case of trying to squint to see “methods and concepts” from SysV to be of
    such “magical” value to be worth 5 billion dollars. Of course, Unix has had such
    huge market percentage in its time and now Linux/others are running away with
    the spoils. Nonsense, I see a much more believable explanation: Bell Labs was
    one of the only companies investing the resources to build an OS when computing
    resources were astronomically more expensive and the availability of software
    developers much less. Today there are thousands upon thousands of developers
    with desktops that would have made the first Unix developers green with envy. So
    they stumble upon similar solutions to similar problems? This is all they have?

    Anyway, I wonder what impact this will have on our industry and what others’
    opinions are on where is the legal system taking us? I think this is one of the
    reasons to move from a software license model to an open source software service
    model.

    [ Reply to This | # ]

    Marc Rochkind isn't even wrong
    Authored by: Anonymous on Sunday, April 30 2006 @ 11:50 PM EDT
    As Davis points out, they are talking at cross purposes. To prove that IBM
    employees have disclosed methods and concepts, it is merely necessary to point
    out emails in which they have done so. Rochkind has done that. (Don't flame me
    yet.)

    However, he has two problems:

    1 - Judge Wells was quite specific about what she was willing to accept. She
    wanted to see great specificity. No problem. This just gives SCO something
    they can base an appeal on. The breach of the contract was that the method or
    concept was disclosed. Period. It shouldn't be necessary to show that someone
    then used that method or concept.

    2 - Even if we accept that SCO should be able to claim that methods and concepts
    were disclosed based just on the evidence of emails, it is reasonable that they
    should be able to prove that those methods and concepts were protected by the
    contract. In that regard, they have to show two things: A - The method or
    concept disclosed was unique to the product covered by the contract. The logic
    behind this is simple. If the contract prevented disclosure of any method or
    concept used in the product, then IBM would be forbidden to talk about any kind
    of programming to anyone. Obviously ridiculous. B - An IBM employee was the
    first to disclose that method or concept. AT&T agreed that IBM could talk
    about methods and concepts that had already been revealed.

    Marc Rochkind made no attempt to prove A or B above for any of SCO's claims. He
    has proven that IBM employees did discuss methods and concepts used in the
    protected product. He has the emails. Unfortunately for him, that's not
    enough. He hasn't presented any evidence that any of the emails actually
    breached the contract.

    I think (IANAL of course) that Judge Wells can still pitch out these claims even
    if she does grant SCO that it isn't necessary to show that the methods and
    concepts made it into Linux. (OK now you can flame me if necessary.)

    [ Reply to This | # ]

    Sloppy
    Authored by: Anonymous on Monday, May 01 2006 @ 12:13 AM EDT
    For an author of a Unix book (which I own, BTW!), Rochkind is rather sloppy (I
    guess SCO didn't pay quite enough :-). I mean, is it really worth destroying
    good will among people that are future buyers of you book over SCO?

    I also find Rochkind's "you don't need the source for 'methods and
    concepts'" claim rather idiotic. Of course you don't - if you have
    something else. But, you don't have anything else here - you only have the
    source. So, if it ain't there, where is it?

    On the other hand, Amazon were selling his book cheap ;-)

    [ Reply to This | # ]

    I did enjoy this para
    Authored by: dmarker on Monday, May 01 2006 @ 02:01 AM EDT
    "43. Mr. Rochkind does not disagree that the implicated code base is
    enormous. Nor does he disagree that SCO’s Chris Sontag provided sworn testimony
    early in the case that it would take 25,000 person-years to review a code data
    base .2% the size of the stack of code at issue. Mr. Rochkind states only that
    he has helped SCO to provide enough information for IBM to find the 198 needles
    in the haystack. Having helped to decide what the needles are, Mr. Rochkind may
    well feel as if he knows what they are. But I do not. Nor do I believe that
    other independent experts would."

    So clearly put :)

    Doug M

    [ Reply to This | # ]

    Marc Rochkind is a Linux user
    Authored by: Reven on Monday, May 01 2006 @ 05:51 AM EDT
    Does anyone find it funny that Marc Rochkind is a Linux user? Yes, I know, he's just an "expert" that SCO pimped hired to validate their position. However, if you're going to have someone on your team, wouldn't it be best if he wasn't a Linux advocate?

    ---
    Ex Turbo Modestum

    [ Reply to This | # ]

    Wicked thought
    Authored by: tangomike on Monday, May 01 2006 @ 04:05 PM EDT
    I remember early on that IBM said they didn't really care who owned the
    copyrights. This was for purposes of their counter claim that Linux did not
    violate copyrights.

    It just occured to me, and maybe I'm s-l-o-w on this, that such an assertion may
    have lulled TSCOG into thinking they could slide through a bunch of stuff
    without lines of code (which are what actually gets copyright protection). They
    took IBM's declaration to mean they didn't have to show copyright, because IBM
    didn't care.

    Now that would be a monumentally BAD assumption, in hindsight.

    ---
    Deja moo - I've heard that bull before.


    [ Reply to This | # ]

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