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IBM Files Expert Reports
Tuesday, May 23 2006 @ 11:47 AM EDT

IBM has served its Expert Reports on SCO on Friday the 19th and filed it with the Court Clerk electronically on the 22nd. Here's the certificate of service [PDF]. There is a new expert on IBM's side.

Yes, not only does IBM have the world-renowned MIT Professor of Computer Science Dr. Randall Davis on its side as an expert, but now they have served SCO with a Report and Declaration of Professor J. R. Kearl and a Report and Declaration of Brian W. Kernighan, who has appeared for IBM before. Dr. Kernighan is the expert who helped to persuade Judge Dale Kimball that there was an astonishing lack of evidence of copyright infringement, earlier in this case. He is a Professor at Princeton, but that barely begins to list is credentials, some of which are listed here.

And who is Professor Kearl? He is an expert in economics. He went to both Harvard and MIT and now teaches at BYU. SCO is no doubt throwing chairs at the wall. Oh, wait. That's Microsoft.

Why might they be upset? Because now they can't hire Kearl themselves, and because he will be hard to beat. His resume fills 11 pages [PDF]. He's a local Provo guy. He is married and has five kids. He writes prolifically, which is one reason it takes 11 pages to tell you about him, books with titles like "Principles of Economics" and "Contemporary Economics: Markets and Public Policy". His articles have titles like "Economics and Antitrust Litigation," "The Covariance Structure of Earnings and Income, Compensation Behavior, and On-the-Job Investment," and “Microsoft is Not Above the Law.”

The rest of the 11 pages is a long list of his educational achievements and his honors and awards. He was a White House Fellow, where he served as a special assistant to the Secretary of Defense and to the U.S. Trade Representative, and has also served on the U.S. Census Advisory Committee on Population Statistics. He "specializes in applied microeconomics, industrial organization, and public policy. His areas of expertise include public policy analysis, the economics of antitrust, regulation, intellectual property, economic damages, and trade policy."

Hmm. Economic damages. That might come in handy at trial. He could explain that SCO's dreams of untold wealth from this trial can't stand up to analysis. Or maybe he could explain just how much SCO owes IBM for publicly claiming IBM illegally placed a mountain of infringing code into Linux, a mountain that has yet to appear in evidence.

Update: The parties have also filed a stipulated motion [PDF] to give IBM an extra week for IBM to file its Memorandum in Opposition to SCO’s Motion for In Camera Review of Allegedly Privileged Documents from May 23, 2006, to May 30, 2006. The parties also submitted a proposed Order [PDF].

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

SNELL & WILMER, L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorensen
[address, phone, fax]

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

Attorneys fov 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,

vs.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-
Plaintiff.

________________________________

CERTIFICATE OF SERVICE
OF EXPERT REPORTS

Civil No. 2:03CV0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke Wells

________________________________

I hereby certify that on the 19th day of May, 2006, true and correct copies of the Report and Declaration of Professor J. R. Kearl and the Report and Declaration of Brian W. Kernighan were sent by U.S. Mail, postage prepaid, to the following:

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

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

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

/s/ Todd M. Shaughness

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing CERTIFICATE OF SERVICE OF EXPERT REPORTS was electronically filed with the Clerk of the Court using the CM/ECF system this 22nd day of May, 2006, and thereby served upon the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

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

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

/s/ Todd M. Shaughnessy


  


IBM Files Expert Reports | 401 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IBM Files Expert Reports
Authored by: Anonymous on Tuesday, May 23 2006 @ 12:02 PM EDT
ni hao

[ Reply to This | # ]

Will we get to see these?
Authored by: notbuddha on Tuesday, May 23 2006 @ 12:07 PM EDT
Or are they just between SCO & IBM?

---
If you see me on the road, don't kill me.

[ Reply to This | # ]

OT threads...
Authored by: kenryan on Tuesday, May 23 2006 @ 12:11 PM EDT
...and I'll post one in a moment.

---
ken
(speaking only for myself, IANAL)

[ Reply to This | # ]

Corrections here
Authored by: wood gnome on Tuesday, May 23 2006 @ 12:14 PM EDT
Whatever is needed in this respect

[ Reply to This | # ]

This is SO exciting.
Authored by: Anonymous on Tuesday, May 23 2006 @ 12:20 PM EDT
I am SO excited, PJ.
This is all fantastic.
IBM is sure to win now.

[ Reply to This | # ]

Who goes first on what?
Authored by: Anonymous on Tuesday, May 23 2006 @ 12:24 PM EDT
PJ, maybe you could do a brief explanation of how expert discovery schedule
works?
We have initial reports, opposing reports, then rebuttal reports -- just like in
motion practice -- but who has to file the initial reports on what? For example,
there's no report from Prof. Davis. Presumably that means he'll be writing an
opposing report instead. How is it decided? Is it whoever filed the specific
claim/counterclaim? Or whoever has the burden of proof on the specific issue?
Which issues are likely to be covered in IBM's initial reports and which in
SCO's?

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: Anonymous on Tuesday, May 23 2006 @ 12:27 PM EDT
SCO is no doubt throwing chairs at the wall...

Of course. However, as we all know, SCO is not very good at hitting its target. The chairs could land on SCO's lawyers instead. :)

[ Reply to This | # ]

Kearl - co-Author of Valuing Intellectual Property
Authored by: yorkshireman on Tuesday, May 23 2006 @ 12:34 PM EDT
Professor Kearl having co-written

“Valuing Intellectual Property” (being revised)
with Gregory D. Adams

Will be well placed to point out that (in the unlikely even that SCO can prove
any wrong doing by IBM) a couple of usenet postings are unlikely to cause
*billions of dollars* worth of damage to SCO's intellectual property (if they
actually own any).

[ Reply to This | # ]

IBM Files Expert Reports before an afternoon of golf
Authored by: webster on Tuesday, May 23 2006 @ 12:41 PM EDT
.
1. Will SCO match this? Will they file reports by high-price, high-rep
experts? If they don't, they do not intend to go to trial. If they do, they
have hopes to settle or go to trial.

2. If Rochkind is any clue to their response, we can expect experts who will
opine on SCO issues which may not be relevant. The IBM experts are going to
have a hard time dealing with methods and concepts voodoo. That should shake
them up in front of a jury. There are too limited by their expertise.

3. The problem for SCO and experts is that the experts may have to agree with
the IBM experts in great part if they are true experts in the same field. Since
they have no code, all experts can be turned against them with IBM code.

4. If these reports are published, it will take a huge FUDslide to counter
them. Maybe they can specify the "IBM destroys material" accusation
from the last hearing. Things might get even worse real quick. The Order on
the Motion to Strike is due. It will answer the question: "Can there be
methods and concepts without code?" I no sink so.

---
webster

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: Groklaw Lurker on Tuesday, May 23 2006 @ 12:42 PM EDT
Just having Dr. Kernighan is like bringing a Howitzer to a firecracker fight.

I imagine that some of the attorneys on the SCO team are hoping that their
association with this case will not have a negative impact on their careers. It
is their unfortunate plight to be saddled with a case that is demonstratively
hopeless, yet they must plod along toward the inevitable end dragging their
increasingly heavy ball-and-chain along with them. I just don't see the upside
of listing this case on a resume'...



---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

IBM is sending in the First Team
Authored by: rsteinmetz70112 on Tuesday, May 23 2006 @ 12:48 PM EDT
Every Expert IBM has put forward is a world class expert in his field. It will
be tough for SCOG to even challenge them.

IBM is certainly going all out and sparing no expense to defend this suit.

I just wish we coudl read the reports ourselves.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: Anonymous on Tuesday, May 23 2006 @ 01:20 PM EDT
It's a shame that the U.S. "justice" system allows this type of
lawsuit, while certain companies employ all slime available to slow down
progress, the rest of the world laughs.

Nero Fiddled While Rome Burned

[ Reply to This | # ]

Serving a report on someone?
Authored by: Anonymous on Tuesday, May 23 2006 @ 01:22 PM EDT
"IBM has served its Expert Reports on SCO"

For the legally ignorant such as myself, very briefly what does it mean to serve
a report on someone?

[ Reply to This | # ]

When you reach a position in your field such as these men
Authored by: billyskank on Tuesday, May 23 2006 @ 01:33 PM EDT
do you generally spend a lot of time doing declarations for litigants?

Just idly wondering how much time a person like Kernighan spends doing this sort
of stuff. At that level in your profession you must be much in demand.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: Anonymous on Tuesday, May 23 2006 @ 02:35 PM EDT
The time draweth near, in typical legal fashion the blowfish is waiting for a
offer. The cost of litigation is always a bargaining chip in the settlement
world, the cost of litigation does not seem to be a trick that will work in this
case.

When Sco blinks it's gonna be a damn break.

[ Reply to This | # ]

Reminds me of a naval battle
Authored by: PeteS on Tuesday, May 23 2006 @ 02:36 PM EDT
Submarine screen in place.

Target acquired

Broadsides

:)

PeteS


---
Artificial Intelligence is no match for Natural Stupidity

[ Reply to This | # ]

IBM to SCOG - That's not an expert report ...
Authored by: mikeprotts on Tuesday, May 23 2006 @ 02:52 PM EDT
This is ...
... and this ...
........ oh - and this is THE expert report.

(with apologies to Crocodile Dundee)

Cheers
Mike

[ Reply to This | # ]

Looks like IBM are covering all possible angles with the econonics professor
Authored by: Anonymous on Tuesday, May 23 2006 @ 05:43 PM EDT
Given the 50 Bazillion lines of code that IBM have had to hand over:

Some weird application of the laws of chance (or a random rip in the space-time
continuum) could result in SCO showing half a dozen lines of code, say in Linux,
that matches something they think they own.

By a further application of improbability physics (see the Hitchhikers Guide)
they manage to prove that they do own it and it was improperly contributed.
Yeah, needs of major suspension of disbelief but that's why the Nazgul earn the
big bucks.

So then Dr Kernighan stands up and points out that his pet cat could write
better code than that shown.

And Dr Kearn proves that the consequential loss suffered by SCO was precisely
0.35467 of a cent.

The Judge awards SCO 1 dollar in damages and looks forward to seeing them in
court again real soon now, in the company of the SEC's legal finest.

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: Anonymous on Tuesday, May 23 2006 @ 07:39 PM EDT
SCO experts to include Matthew Lesko author "Free Money from the
Government", Russ Whitney (author of various tapes and books on making
millions buying/selling real estate), Tom Vu (another millionaire
"maker"), etc. Perhaps Miss Cleo could help out with
"expert" testimony also.

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: gfim on Tuesday, May 23 2006 @ 08:19 PM EDT
and has five kids. He writes prolifically

Sounds like that's not all he does prolifically!

---
Graham

[ Reply to This | # ]

If Brian Kernighan speaks on UNIX...
Authored by: rkhalloran on Tuesday, May 23 2006 @ 08:28 PM EDT
and says your claims of copyright infringement are so much hoohah, your only
appeal is directly to $DEITY.

Who will probably defer judgment to the Special Master...

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: Anonymous on Tuesday, May 23 2006 @ 09:24 PM EDT
Let's see...

Here we have the guy who helped define the standard legal test for infringement
with respect to computer source code, one of the inventors of C & UNIX, and
one of the top economic experts on valuing the economic damage for these sorts
of cases.

And, umm, on the other side we have some random SCO employee with a degree in
computer science and a guy who wrote some book... but neither of them actually
knows anything about how to detect infringing code (and not merely code that is,
for whatever reason, superficially similar). Then again, it might be ...
difficult ... for SCO to find (or afford?) someone aware of the legal standard
who was also willing to testify on their behalf.

Damn. If I ever have the misfortune of getting into legal trouble, I could only
wish to hire Cravath, Swaine & Moore to represent me like they're
representing IBM.

Of course, I suppose it helps most of all to have the facts on your side, but
man, CS&M would certainly be able to help see to it that any grey areas went
in your favor.

I mean, seriously, what next? These witnesses strike me as sorta like getting
the Pope to come be a character witness for you...

[ Reply to This | # ]

If this plays out anything like Davis v Rochkind then SCO may prove they have a purpose in life
Authored by: Anonymous on Tuesday, May 23 2006 @ 09:41 PM EDT
... priceless entertainment value!

[ Reply to This | # ]

When do we get ruling on dismissal?
Authored by: mobrien_12 on Wednesday, May 24 2006 @ 02:12 AM EDT
How much longer is it going to take before we get the ruling from Judge Wells on
the dismissal of all the claims that have no specifics to back them up?

It seems like SCO and IBM are just going back and forth with their experts....
fact is SCOG was ordered to profide their evidence line by line with specificity
and they changed their tune at the last minute. Judge Wells said "is this
all you've got?" and that was weeks ago.

[ Reply to This | # ]

can you explain?
Authored by: Anonymous on Wednesday, May 24 2006 @ 02:39 AM EDT
Why the plaintiff and defendant look for experts and file their 'report'?
Why not the court seek experts?
It is obvious that IBM will file stuff that supports their theory and SCO will
file stuff that supports their dream.
In this case it is almost obvious who is right, but there could be less obvious
cases, so why IBM/SCO file those 'expert reports'?

[ Reply to This | # ]

IBM Files Expert Reports
Authored by: Anonymous on Wednesday, May 24 2006 @ 08:04 AM EDT
As a Unix techie myself, I recently pondered what kind of incentive would be required for me to "turn to the darl side" as it were, to take Mr Rochkind's role as the expert justifying their claims (or their lack of specific claims). And I'm not talking about lying either, merely making the best presentation of what SCO has got (which isn't much).

The first question I asked myself was whether taking that role would enhance or detract from my professional reputation. I arrived at an answer by using Mr Rochkind as an example. I'd never heard of Mr Rochkind before reading his expert declaration. So my initial opinion of him was neutral. I heard he wrote SCCS, and that counts for something positive in my book, because SCCS was one of the first revision control systems I used. However Mr Rochkind is now working for weasels. And it's true that he doesn't hold a candle to Prof Davis, but Mr Rochkind's work product is not very good, even when not compared with Prof Davis' work. So my net position on Mr Rochkind is somewhat negative. I could certainly have produced a better Declaration.

So it seems unlikely that Mr Rochkind's professional reputation will be enhanced by his association with TSCOG. Even less likely since most people wouldn't place as much importance on his authorship of SCCS as I do.

So if I were to aid the enemy, as it were, the reward would need to be sufficient to offset the likely damage to my professional reputation. The damage may well be irreparable - so the reward would need to make my professional reputation irrelevant, i.e. it would need to be enough money to retire on.

But would that even be enough? I may not need to work again, but all my friends would know that I did it "out of greed". The loss of face could only be counteracted by, well, even more money. I'd want a really substantial, frankly absurd amount of money to go over to the darl side.

Thankfully TSCOG aren't waving buckets of money at me, otherwise I might have a real moral dilemma.

Me, posting anonymously because I can't stomach the possibility of revealing to my peers that I could even consider working for TSCOG, no matter how much money is involved.

[ Reply to This | # ]

Methodology analogous to "Ransom Note"
Authored by: Anonymous on Wednesday, May 24 2006 @ 11:06 AM EDT
As I read Dr. Kernighan's description of Gupta's methodology, his cobbling
together of disparate lines of code, sometimes from separate files and
presenting them as if they were contiguous blocks, I couldn't help but laugh at
the unmistable image that formed in my mind ... a ransom note!

Essentially the legendary Kernighan, co-creator of UNIX and of the C programming
language which is quite literally the "source" of UNIX, is pointing
out that SCO has clipped fragments of the Linux sources in a way that is no
different than snipping out words from various magazines and pasted them
together on a page of their own creation. In short they created this in the
stereotypical fashion of a ransome note.

The analogy seems apropos on multiple levels.

JimD

[ Reply to This | # ]

What is an expert witness allowed to say?
Authored by: Alan(UK) on Wednesday, May 24 2006 @ 01:22 PM EDT
Assuming SCO is allowed to bring this case before a jury. They have revealed
hardly anything, as far as we can gather, to IBM and the Court, in the way of
evidence of a complaint. Will the expert witnesses, of either side, be allowed
to mention any other evidence? I am thinking particularly of the code that SCO
expects IBM to find themselves. I presume the IBM witnesses will have
deliberately avoided looking for it so cannot answer. The SCO witnesses are
going to look pretty silly when they say that they know where it is but the
judge will not allow them to say. Is this the case or do expert witnesses have
greater freedom?

[ Reply to This | # ]
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