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IBM's Reply Memo in Support of Motion to Confine/Strike SCO's Claims
Tuesday, June 27 2006 @ 02:00 AM EDT

Here's IBM's Reply Memorandum in Support of Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, the Final Disclosures [PDF] and three exhibits:
  • Exhibit A - Memorandum Attaching and In Support of IBM's Proposed Scheduling Order
  • Exhibit B - Reply Memorandum in Further Support of IBM's Proposed Scheduling Order
  • Exhibit C - Transcript of the April 21, 2005 Hearing before Judge Dale Kimball

The issue is quite simple, IBM states. Fair is fair, and a deal is a deal. The court ordered the parties to identify allegedly misused material by a firm date; the parties stipulated to do that very thing. Now SCO is trying, by its experts reports to change the nature of the case entirely, after discovery is over, by raising claims it certainly could have raised years ago. It surely can't claim it just discovered these issues -- some of the materials it now complains about being in Linux it put there itself when it was in the Linux business.

SCO claims that there isn't anything new in the reports, but if that were so, then an order in IBM's favor on this motion wouldn't affect SCO negatively one bit. So why is it opposing the motion? That's legalese, I believe, for "SCO isn't being truthful about there being no new material in the experts' reports". How could there not be new material, when SCO listed only 326 lines of code as allegedly infringing, and now its experts have expanded the claim to include the entirety of Linux?

IBM would be fatally prejudiced by allowing SCO to do what it's trying to do. It honored the stipulation and it relied on SCO to do the same. All IBM wants is a simple order stating: “IT IS HEREBY ORDERED THAT, as provided in the Court’s Order of July 1, 2005, and agreed by the parties, SCO may not challenge as misused (by expert report or otherwise) any material not specifically identified as misused by IBM in the Final Disclosures.”

Amen to that. As I was transcribing, I noticed five or six times when IBM at least implies that SCO is not being truthful or straightforward. At some point, one has to ask, why doesn't SCO's legal team realize the whole world is watching? Not only watching. We remember everything. This isn't a "normal" case, where a judge maybe can be blustered into doing what one wishes, by means of hide the pea and courtroom highjinks. What you say one day will be recalled three years later. Particularly here, where SCO argued the very things it is trying to argue now, and it lost, how does it imagine that they will work now, after there is a stipulation and an order to the contrary? I am having deep thoughts about that, I must say.

My thanks go to feldegast and Steve Martin, for helping with the transcribing and HTML.

UPDATE: Marbux explained something to me that helps me to understand what is going on:

Under Fed.R.Civ.P. 15(b) (see below), issues outside the pleadings can be litigated at trial if the other side does not object. That happens in nearly every case, largely because the pleadings are normally so imprecise. In this case, the Court's scheduling order said it limited the scope of the pleadings to the alleged misuse of code identified by parties in their Final Disclosures. So the issue really boils down to whether SCO should be allowed to amend its pleadings after discovery has closed (although there are other arguments IBM raises that could justify the same relief).

The IBM lawyers are taking the right approach by objecting as soon as they became aware SCO was trying to pull a Rule 15(b) end run around the established scope of the pleadings. They thus make a clear record that they did not impliedly consent to the issues SCO tried to sneak in. Implied consent is typically shown, in context, by the fact that the party went ahead and litigated the issues that were outside the scope of the pleadings. IBM is not making that mistake.

SCO's response to the IBM motion should have been to attach a motion to amend the pleadings (and the scheduling order) and a proposed amended complaint and response to IBM's counterclaims. Without those documents, the SCO lawyers left the court in a very poor position to rule against IBM, because analytically, the issue is whether SCO should be allowed to amend the pleadings.

Here's the Rule he is referring to:

Fed.R.Civ.P. 15...

(b) Amendments to Conform to the Evidence.

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

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

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[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,

v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.

----------------------------

IBM’S REPLY MEMORANDUM IN
SUPPORT OF MOTION TO
CONFINE SCO'S CLAIMS TO, AND
STRIKE ALLEGATIONS IN
EXCESS OF, THE FINAL
DISCLOSURES

(EXPEDITED BRIEFING AND
ORAL ARGUMENT REQUESTED)
Civil No.: 2:03CV-0294DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

Defendant/counterclaim-plaintiff IBM respectfully submits this reply memorandum in further support of its motion to confine SCO’s claims to, and strike allegations in excess of, its December 22, 2005 Disclosure of Material Allegedly Misused by IBM (the “Final Disclosures”).

Preliminary Statement

In opposition to IBM’s motion, SCO submits 18 pages of argument and another 700 pages of exhibits. But nothing in those materials—no matter their volume—can change the fact that SCO seeks (by its expert reports) to challenge as misused material not specifically identified in the Final Disclosures. Judge Kimball’s scheduling order, the parties’ stipulation and basic fairness preclude SCO from changing its case at this point in the proceedings. So too does the fact that it failed timely to disclose the new material in response to IBM interrogatories that clearly called for it. Insofar as they challenge as misused material not specifically identified in the Final Disclosures, SCO’s expert reports should be stricken.

The issue presented by this motion is simple. Should the Court limit SCO’s claims, consistent with Judge Kimball’s scheduling order and the parties’ express agreement, to the allegedly-misused material specifically identified in the Final Disclosures? Or should SCO be permitted in its expert reports to identify as misused new material that: (1) was not the subject of fact discovery, (2) would fundamentally change the nature and scope of the case, (3) could have been disclosed years ago, and (4) if allowed, would result in incurable prejudice to IBM—since IBM could not properly defend itself without a substantial delay in the proceedings and any further delay of this case would by itself be unduly prejudicial? The answer, we respectfully submit, is obvious and compels the relief IBM seeks.

SCO attempts to confuse the issue by suggesting that the Court must wade through the Final Disclosures and SCO’s expert reports to weed out the new material. IBM has not

2

requested that the Court undertake such an exercise, and it is entirely unnecessary. Consistent with the simplicity of the issue presented, we merely seek an order stating: “IT IS HEREBY ORDERED THAT, as provided in the Court’s Order of July 1, 2005, and agreed by the parties, SCO may not challenge as misused (by expert report or otherwise) any material not specifically identified as misused by IBM in the Final Disclosures.” That is all that is required to resolve this motion.

As explained in our moving papers, three of SCO’s expert reports (those of Messrs. Ivie, Rochkind and Cargill) identify new material that was not specifically identified in SCO’s Final Disclosures. For the most part, SCO argues that these reports contain nothing new. If that were true, however, then the order IBM seeks would not affect SCO’s reports, and SCO should have no opposition to this motion. Notably, after SCO filed its opposition brief, and in an effort to resolve in part this motion, we asked SCO to stipulate that it does not (and will not) contend that IBM misused material not specifically identified in the Final Disclosures. SCO declined.

The Cargill report is by far the biggest offender, and it is the focus of this brief. SCO acknowledges that the Cargill report seeks to challenge as misused material not specifically identified in the Final Disclosures. SCO simply asserts, without any support, that it was free to use its expert reports to challenge as misused material that was not specifically identified in the Final Disclosures. As is further discussed below, SCO’s claims should be limited to the Final Disclosures, because (1) the Court expressly ordered and the parties expressly agreed that the Final Disclosures would define the bounds of their claims (see Section I below); (2) SCO failed to disclose the new material in response to IBM’s interrogatories, and none of the arguments offered by SCO to explain the excesses of its expert reports withstands even the slightest scrutiny (see Section II below); (3) allowing SCO now to identify as misused material not specifically

3

identified in the Final Disclosures would result in incurable prejudice to IBM (see Section III below); and (4) as SCO acknowledged before Judge Kimball, there is ample authority for the Court to enforce its Orders and the parties’ agreement and protect IBM from prejudice (see Section IV below).

Argument

I. THE COURT ORDERED AND THE PARTIES AGREED THAT THE FINAL
DISCLOSURES WOULD DEFINE THE BOUNDS OF THEIR CLAIMS.

SCO acknowledges the Order of the Court (dated July 1, 2005) limiting its claims to the material specifically identified in the Final Disclosures (see, e.g., SCO Opp’n at 1), but then proceeds to interpret the order out of existence. Similarly, SCO ignores altogether the parties’ express agreement limiting their claims. SCO simply pretends that nothing about Judge Kimball’s order or the parties’ agreement foreclosed it from identifying as misused material not specifically identified in the Final Disclosures. Thus, SCO says, it was (and is) free to change the case in its expert reports.

After years of attempting to get SCO to define the scope of its claims, IBM asked the Court to set a final deadline, before the close of fact discovery, by which both parties would be required once and for all to identify all allegedly misused material. IBM made perfectly clear that, under its proposal, “[n]o party could contend that another party misused material not identified by the . . . deadline; no expert could opine as to the misuse of material not identified by the deadline”. (Mem. Supp. IBM’s Proposed Scheduling Order, dated 3/25/05, at 5.) The purpose of the request, which SCO resisted, was to avoid the very predicament IBM now faces: the untimely disclosure of SCO’s allegations of infringement at a time when IBM could not properly prepare a defense. (Reply Mem. Supp. of IBM’s Proposed Scheduling Order, dated 4/11/05, at 5.)

4

Judge Kimball adopted IBM’s proposal and set a final deadline, before the close of fact discovery, for parties “to Identify with Specificity All Allegedly Misused Material” and to update their interrogatories accordingly. (Order § III, 7/1/05.) In so doing, the Court foreclosed both parties from using their expert reports to allege misuse or infringement as to material not specifically identified in the Final Disclosures. Nothing in the language of the Court’s Order excepts SCO’s claims from its reach, and there is no evidence that the Court intended sub silentio to allow the parties to circumvent the Order by their expert reports. Indeed, SCO’s opposition brief is nothing more than a repeat of the arguments Judge Kimball rejected in entering the July 1, 2005 Order.

Subsequent to entry of the Court’s July 1, 2005 Order, a dispute arose between the parties as to the scope of permissible discovery. When the parties met and conferred on the issue, SCO repeatedly acknowledged that its claims were limited to the material specifically identified in the Final Disclosures. More important, it then confirmed the fact in a stipulation executed by the parties, submitted to the Court, and relied on by IBM. The stipulation provides:

1. Both parties are required to identify with specificity any and all material that each party contends the other has misused no later than December 22, 2005;

...

(c) Neither party shall be permitted to use [the period for discovery relating to the Final Disclosures] for the purpose of identifying additional misused material not disclosed by the December 22, 2005, deadline.

(Stip. Re Scheduling Order at 2-3, dated 12/7/05.) SCO’s brief, despite its length, fails even to mention this stipulation. IBM has honored this agreement (by not exceeding the scope of its final disclosures with its expert reports) and has relied on SCO’s obligation to do the same. Thus, independent of the Court’s Order, SCO waived the right to expand its claims beyond the

5

material specifically identified in the Final Disclosures. See, e.g., AT&T Corp. v. MRO Commc’ns., Inc., No. 98-17348, 205 F.3d 1350, 1999 WL 1178965, at *3 (9th Cir. 1999).

SCO suggests that IBM represented to Judge Kimball that expert reports could be used to supplement the Final Disclosures and thus, it says, IBM should not be allowed to complain that SCO’s expert reports seek to supplement the Final Disclosures. (SCO Opp’n at 4-5.) SCO is wrong. IBM repeatedly stated exactly the opposite, as is evident from the two memoranda and the transcript attached hereto as Exhibits A, B and C. In fact, in the very brief cited by SCO as support for IBM’s supposed inconsistent position, IBM stated:

SCO cannot credibly contend that it should be allowed to identify the material at issue in this case for the first time via its expert reports and after the close of fact discovery. The Allegedly Misused Material must be disclosed well in advance of the close of all fact discovery so that the parties can take fact discovery as to their defenses and focus on the issues to be addressed during the expert phase of the case. Not requiring the parties to disclose the Allegedly Misused Material before the close of all fact discovery would merely allow sandbagging.

(Reply Mem. Supp. of IBM’s Proposed Scheduling Order, dated 4/11/05 at 4-5.) Tellingly, SCO excluded this language from its citation. (SCO Opp’n at 4.)

SCO further argues that “[t]he December submission was not intended and did not require SCO to set forth a legal theory or expert analysis of copyright infringement or breach of contract, nor to submit the entire sum of evidence supporting IBM’s misuse of the material identified in the December Submission.” (SCO Opp’n at 4.) But IBM does not contend that the Final Disclosures required a full explication of SCO’s legal arguments, extended expert analysis or submission of all of SCO’s trial exhibits. What the Court required of both parties—and what IBM did and SCO was supposed to do (but did not)—was to identify any and all allegedly misused material once and for all. If SCO’s revisionist view of the Court’s Order and the parties’ agreement were correct, neither the Order nor the stipulation would have any meaning.

6

As SCO construes them, SCO would be free to identify new material at any time—including during trial.

SCO’s own conduct belies its new-found interpretation of the Court’s Order, and the parties’ agreement. SCO identified numerous items of allegedly infringing Linux material in the very Final Disclosures that it now argues did not require the identification of all allegedly infringing Linux material. 1 Moreover, SCO expressly states in the Final Disclosures that these materials were provided pursuant to the Court’s Order of July 1, 2005. (See SCO’s Second Rev. Supp. Resp. to Def’s 6th Set of Interrogs. at 2.) Yet SCO would now have the Court believe this material was merely provided as a courtesy to IBM, not because it was required to disclose allegedly infringing material in Linux with specificity.

II. NONE OF THE ARGUMENTS OFFERED BY SCO TO JUSTIFY ITS ADDITION OF THE NEW MATERIAL WITHSTANDS SCRUTINY, ESPECIALLY IN VIEW OF SCO’S FAILURE TO IDENTIFY IT IN RESPONSE TO IBM’S INTERROGATORIES.

Putting aside the fact that the Court’s Order and the parties’ agreement preclude SCO from challenging new material in its expert reports, so too does its failure to identify the material in response to IBM’s interrogatories. That failing alone is sufficient to justify the remedy IBM seeks, and none of the excuses offered by SCO to justify its conduct bears scrutiny.

As the Court is aware, IBM propounded discovery requests seeking identification of the allegedly misused material years ago. At no point did SCO disclose in its responses to those interrogatories the new material challenged by this motion. Thus, under well-established precedent, SCO cannot challenge that material by its expert reports. See, e.g., LCA Corp. v. Shell Oil Co., 916 F.2d 434, 440 (8th Cir. 1990); Hickory Specialties, Inc. v. Forest Flavors Int’l,

7

Inc., 12 F. Supp. 2d 760, 770-71 (M.D. Tenn. 1998); Tassin v. Sears, Roebuck and Co., 946 F. Supp. 1241, 1252 (M.D. La. 1996).

Notably, in urging Judge Kimball not to enter an order requiring SCO to make final disclosures, SCO itself acknowledged that it is limited by its interrogatory responses. SCO stated:

IBM has served interrogatories on SCO, and SCO is under an obligation to respond to those interrogatories. We will do so as soon as we can. If it arises that IBM is of the view that it has not received our responses to their interrogatories in enough time to complete discovery, that is an issue to raise with the Court at that point. The Court [has a full] arsenal of measures it can take to allow more time or to preclude us from using evidence if we haven’t produced responses to those interrogatories in time. (Hr’g Tr. at 95-96, 4/21/05.)

Having acknowledged that its claims would be limited by its interrogatory responses, which merely incorporate the Final Disclosures, SCO cannot now argue that its interrogatory responses do not matter. Those responses, like the Court’s order and the parties’ agreement, limit the scope of SCO’s claims

None of the justifications offered by SCO to exceed its interrogatory responses (and challenge new material) survives even the slightest scrutiny:

First, SCO seeks to pass off the new material as insignificant. That is utterly untrue. The Cargill report identifies massive amounts of new material in Linux that SCO says infringes its alleged UNIX copyrights. Whereas the Final Disclosures identify only 326 lines of allegedly infringing code in the Linux kernel, the Cargill Report identifies three new categories of allegedly misused material that effectively accuse every file in Linux. As the Court knows, Linux is comprised of thousands of files, which are in turn made up of millions of lines of code. 2

8

Hence, SCO could not have undertaken a more radical change in the case. The Cargill Report accuses more than a thousand times as much material as SCO identified in its Final Disclosures.

Second, SCO claims that IBM has long known the newly identified material was at issue and therefore, the argument seems to go, SCO was not required to identify it in answers to interrogatories or in its Final Disclosures. (SCO Opp’n at 10-13.) SCO points to a magazine article in which it is quoted as claiming that Linux infringes SCO’s alleged UNIX copyrights. Of course, IBM has long known that SCO generally accuses Linux of infringement and has asserted a counterclaim against SCO seeking a declaration that IBM’s Linux activities do not infringe the copyrights. But neither SCO’s press releases nor the counterclaim IBM filed in response revealed the specifics of SCO’s allegations. That is, of course, the reason IBM sought, and the Court ordered specific identification of the allegedly misused material. At bottom, SCO’s argument makes no sense. SCO argues simply that it was not required to answer interrogatories or to identify the new material in the Final Disclosures because it had publicly asserted generally that Linux infringes its copyrights and IBM knew of the assertions. To state this argument is to refute it.

Third, SCO asserts that one of IBM’s experts, Professor Kernighan, has already evaluated the newly-identified material. (SCO Opp’n at 13-16.) That assertion is both false and disingenuous. Until SCO submitted the Cargill report, neither IBM nor any of its experts, including Professor Kernighan, knew that SCO claimed IBM misused the new material identified in the Cargill report. The Court ordered, and the parties agreed, that SCO’s claims would be limited to the Final Disclosures. The Final Disclosures make no specific mention of the new

9

material. SCO’s responses to IBM’s interrogatories also make no mention of it. While Professor Kernighan addresses some of the material considered in the Cargill report (i.e., the material identified in the Final Disclosures), Professor Kernighan does not address any of the new material specifically identified for the first time in the Cargill report -- none of it.3 To do so would require a whole round of litigation.

Finally, it is important to note what SCO does not contend. SCO does not (and could not in good faith) argue that, despite a diligent search, it just learned of the new material. That is because the new material -- all of it -- has been available to SCO from long before the commencement of this lawsuit. In fact, some of it, such as the challenged features of the Linux file system, has been a matter of public record since the inception of Linux in 1991.4 Remarkably, other of the new material is in Linux because SCO itself helped to put it there when it was in the Linux business. If SCO had wished to challenge these materials it could have done so long before it ever filed suit against IBM. In view of the Court’s order and the parties’ agreement, it had a duty to do so no later than the Final Disclosures.

10

III. SCO’S CONDUCT IS UNDULY PREJUDICIAL TO IBM.

The prejudice resulting from SCO’s identification of new, allegedly-misused material should be self-evident. SCO seeks to expand the case nearly six months after the deadline for its Final Disclosures, after the close of fact discovery, simultaneous with the filing of initial expert reports, on the eve of the due date of IBM’s opposing expert reports and when summary judgment briefs are forthcoming. If allowed, this would force IBM to prepare a defense with respect to the new material, without the benefit of discovery, in a matter of weeks, while SCO has spent more than three years developing its case.

SCO devotes only a footnote to addressing the prejudice caused by its new claims. (SCO Opp’n at 16 n.6.) And there it argues only that IBM would not require more than three additional months to address the new material. (Id.) That is more than enough time, says SCO, because “[u]nder the Court’s schedule, IBM was provided only three months of fact discovery, until March 2006, following the submission of the December 2005 reports.”5 (Id.) That is wrong. Not only does it ignore the fact that any additional delay in these proceedings would be prejudicial to IBM, but it also mischaracterizes the nature of the three-month discovery period previously provided by the Court.6

11

As SCO well knows, the kind of change it proposes (by indirection) would require a whole new round of litigation. None of IBM’s discovery was taken with the newly-identified material in mind. How could it have been? SCO failed to identify it in the Final Disclosures or in response to IBM’s interrogatories, despite repeatedly assuring IBM and the Court that it had provided complete and detailed responses. To make matters worse, SCO’s delay in identifying the material has no doubt resulted in the destruction of evidence relating to SCO’s own Linux activities, which would prejudice IBM and, at a minimum, complicate defensive discovery. 7

IV. THERE IS AMPLE BASIS FOR THE COURT TO ENFORCE ITS ORDERS AND THE PARTIES’ STIPULATION.

As stated in IBM’s opening brief, there is ample authority for limiting a party’s claims to the scope of its disclosures, especially where the disclosures were ordered by the Court. See Kern River Gas Transmission Co. v. 6.17 Acres of Land, 156 Fed. Appx. 96, 100, 103 (10th Cir. 2005) (affirming district court’s decision “preclud[ing] . . . [defendant] from introducing at the trial any expert evidence or documents not produced during discovery”); Praxair, Inc. v. Atmi, Inc., 231 F.R.D. 457, 463-64 (D. Del. 2005) (striking portions of expert report that incorporated new evidence and defenses that were not disclosed prior to a discovery cutoff); Lynchval Sys., Inc. v. Chicago Consulting Actuaries, Inc., Civ. A. No. 95 C 1490, 1996 WL 735586, at *9 (N.D. Ill. Dec. 19, 1996) (striking portions of expert report which opined on challenged materials not identified in final interrogatory responses).

12

SCO makes no mention of these cases but relies instead on Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458 (10th Cir. 1988), and Washington v. Arapahoe County Department of Soc. Servs., 197 F.R.D. 439 (D. Colo. 2000). Neither case is any impediment to the relief IBM seeks here. The Ocelot Oil case reversed an order affirming an involuntary dismissal with prejudice for discovery abuse because the district court applied the wrong standard of review (clearly erroneous rather than de novo). 847 F.2d at 1463-64. The Washington case denied a motion to strike an untimely expert report, the submission of which resulted in “no undue prejudice” to the opposing party and would not necessitate a delay in the trial. 197 F.R.D. at 441.

By contrast, IBM does not seek the involuntary dismissal with prejudice of SCO’s case; it merely seeks enforcement of the Court’s disclosure order and the parties’ agreement. Whereas allowing the testimony at issue in Washington resulted in no prejudice to the opposing party, permitting SCO to change its case would result in incurable prejudice to IBM. This is not a motion about the mere admission of evidence on a claim in the case (as was true in Washington), it is about a fundamental change in the nature of the case and an exponential increase in its size that would result in incurable prejudice. Allowing SCO to now identify as misused every file in Linux, when the Final Disclosures identify only 326 lines of Linux kernel code, would render meaningless Judge Kimball’s Scheduling Order, the parties’ agreement and much of what has happened over the last three years.

What makes SCO’s opposition especially baseless is that it ignores SCO’s own prior statements to the Court about its power to preclude SCO from proceeding with respect to unidentified material. In opposing (without success) IBM’s request for the entry of a deadline for final disclosures of allegedly misused material, SCO assured the Court, as stated above, that,

13

even without imposing a specific disclosure deadline, the Court could preclude SCO from using evidence that it failed timely to disclose.
The Court [has a full] arsenal of measures it can take to allow more time or to preclude us from using evidence if we haven’t produced responses to those interrogatories in time. (Hr’g Tr. at 95-96, 4/21/05.)

It cannot be that the Court has less power to limit SCO’s claims now after the entry of the July 1, 2005 Order than SCO acknowledged that the Court had before entry of the Order. SCO previously (and correctly) conceded that the Court could do exactly what IBM now asks it to do, and SCO cannot now be heard to argue otherwise.

Conclusion

For the foregoing reasons, IBM respectfully requests that the Court enter an order confining SCO’s claims to, and striking allegations in excess of, the Final Disclosures.

DATED this 26th day of June, 2006

SNELL & WILMER L.L.P.

By /s/ Todd M. Shaughnessy
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

Of counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Jennifer M. Daniels
Alec S. Berman
[address]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation


1 IBM does not, of course, seek to preclude SCO from proceeding with respect to the allegedly infringing material specifically identified as misused in the Final Disclosures.

2 Even as to the categories of material identified in the Final Disclosures, SCO uses Dr. Cargill to expand considerably the scope of its allegations. For example, the Cargill report alleges that IBM has misused the “totality of the Streams framework”, drawing in every line in over 150 new files, never before mentioned by SCO.

3SCO complains that IBM did not list in its opening brief all of the instances in which SCO’s expert reports exceed the Final Disclosures. Putting aside the irony of this complaint, it misses the mark. There is no reason for IBM, the Court or anyone else exhaustively to catalogue SCO’s excesses at this point. It should be sufficient for the Court simply to reaffirm that SCO’s claims are limited to the material specifically identified in the Final Disclosures, as per the Court’s prior order and the parties’ stipulation.

4For example, SCO claims that the Linux file system infringes SCO’s alleged copyrights. Through Mr. Cargill, SCO complains that the Linux file system has characteristics similar to the file-system of UNIX System V, such as hierarchical files, a single tree of directories and no imposed structure. These have been features of Linux since its inception, much like wheels, doors and brakes have long been features of a car.

5SCO goes so far as to claim that giving IBM more than three months to respond to SCO’s new claims would result in a “discovery windfall” to IBM. Having to incur the costs of litigating a massive new claim is hardly a windfall. (SCO Opp’n at 16 n.6.)

6The Court afforded IBM a three-month period of discovery about the Final Disclosures, at IBM’s request, after SCO certified that it had complied with the Court’s orders and disclosed all of the allegedly-infringing material then available to it. IBM proposed a three-month period for discovery because, as the Court observed at the time, SCO had disclosed absolutely no evidence of infringement by Linux, despite a long standing obligation to disclose any material reasonably available to it, including the new material at issue. Thus, IBM reasonably believed that three months would be sufficient, especially since it would have had nearly six months to prepare an expert report. What IBM did not know is that SCO would ignore the Court’s Order, the parties’ stipulation and SCO’s interrogatory answers and submit an expert report including more than a thousand times the allegedly misused material identified in the Final Disclosures.

7Unlike SCO, IBM abided by the July 1, 2005 Order and its agreement with SCO. IBM did not use its expert reports to challenge as misused material not specifically identified in its disclosures to SCO. Thus, allowing SCO to expand the case with its expert reports would penalize IBM doubly.

14

CERTIFICATE OF SERVICE

I hereby certify that on the 26th day of June, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court and delivered by CM/ECF system to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

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

and by U.S. Mail, postage pre-paid to:

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

/s/Todd M. Shaughnessy

15


  


IBM's Reply Memo in Support of Motion to Confine/Strike SCO's Claims | 366 comments | Create New Account
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Corrections here
Authored by: SpaceLifeForm on Tuesday, June 27 2006 @ 02:06 AM EDT



---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Tuesday, June 27 2006 @ 02:09 AM EDT
Make your links clickable if you have any.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

The message is clear
Authored by: SpaceLifeForm on Tuesday, June 27 2006 @ 02:29 AM EDT
As SCO construes them, SCO would be free to identify new material at any time—including during trial.

I really don't see how SCO wins this round.

If they let this go, SCO would then try to pull rabbits out of a hat during appeals too.

IBM argues very clearly and concisely that there is no reason whatsoever for the courts to allow this charade to continue.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

2 AM????
Authored by: red floyd on Tuesday, June 27 2006 @ 02:30 AM EDT
PJ, please, do yourself a favor. Go to bed, get some sleep!

[I have an excuse, I'm on the west coast, so it's only 11:30 here :)]

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

What's IBM gotta do with this?
Authored by: Anonymous on Tuesday, June 27 2006 @ 02:40 AM EDT
So now that we're back at generic methods & concepts such as pipes and the
like, why is this lawsuit still called "SCO vs IBM"? Presumably, most
of the general Unix-like architecture in Linux was already in place in the very
early versions, before IBM got involved in any significant way, isn't it?

So, couldn't IBM just say "your hounour, we don't have an opinion on this
whole methods & concepts thing, but we do know that we are the wrong party
to sue here"? That would put SCO neatly back at square 1.

I realize that, from a strategic standpoint of the F/OSS community as a whole,
it's probably better that IBM keeps carrying this case on its broad shoulders,
rather than Linus Torvalds being sued personally. On the other hand, it's not
like IBM can actually *prevent* SCO from sueing someone else, and it would
certainly be fun to see them standing there as the loser in this game of musical
chairs they've been playing for so long.

I've been following this story since the beginning, but I've not read every
single article lately, so I'm probably missing something. What are the methods
and concepts that *IBM*, specifically, is accused of putting into Linux?

[ Reply to This | # ]

IBM's Reply Memo in Support of Motion to Confine/Strike SCO's Claims
Authored by: Anonymous on Tuesday, June 27 2006 @ 02:40 AM EDT
good greif, is there no end to this?

Sco is like a man shouting 'and another thing' after they've lost an argument
completely, just to keep the argument going.

Is it perhaps because they know they're going to get counter sued to bits, and
want to pospone that as long as possible?

[ Reply to This | # ]

IBM's Reply Memo in Support of Motion to Confine/Strike SCO's Claims
Authored by: webster on Tuesday, June 27 2006 @ 03:21 AM EDT
1. IBM stays on the high road in the fast lane. They don't take rhetorical pot
shots as suggested by Linux zealots on certain nameless blogs of interest.
Their argument is simple and powerful - SCO has not complied with discovery.
They shouldn't be allowed to get away with it. pp. 1-4.

2. --*--"The purpose of the request [for a deadline], which SCO resisted,
was to avoid the very predicament IBM now faces: the untimely disclosure of
SCO’s allegations of infringement at a time when IBM could not properly prepare
a defense."--*--

-----IBM stretches their credibility here when they say they could not prepare a
defense. They were probably ready for everything but then cut back their
discovery precisely to just the matters presented at the deadline.
Nevertheless, IBM is right. SCO's should not be allowed to get away with their
stonewalling and twisting the Court's words.

3. IBM says SCO shouldn't be allowed to ignore the interrogatories and then
slip this stuff in on the expert reports. IBM points out that SCO put some
stuff in Linux itself years ago so they knew about it and should have contested
it.

4. It's simple. Analysis is superfluous. What's with SCO? Why be this way?
They didn't want to disclose anything lest their suit be exposed as a put-up-job
sooner rather than later. Getting the AIX, Dynix fishing expedition with no
showing of relevance or need won them delay. They are brassy and stonewalled
throughout. They figure they can ignore the deadline because the judge has let
them ignore the interrogatories. They are posturing that the Judge couldn't
possibly make them go to trial without their evidence. They want a general,
unspecified claim which IBM would have trouble defending. So SCO is saying,
Judge, you take your order as to specificity and timing and put it next to your
face, sit on it. IBM says this is naughty and deserves to be sanctioned. It
will cause them prejudice/delay.

-----So they risk having their claim thrown out rather than respect Court
discovery orders. Clearly the FUD-fright value was worth more to them as fear
of the unknown rather than the fear that any specified code could generate.

5. SCO has yet to give a reason for the delay. They prefer to twist the
Court's Orders.

---
webster

[ Reply to This | # ]

Wow that is short and simple.
Authored by: Anonymous on Tuesday, June 27 2006 @ 03:30 AM EDT
SCO's last memo was so far all-over-the-map and touched on so many different
issues that I was amazed how short and direct that IBM's response here was. The
entire memo came down to: Never mind all that, this is what's happening in this
actual case. IBM brushed aside SCO's attempts to change the subject with such
indifference I almost worry they'll have a problem if there are issues raised in
SCO's last memo that IBM doesn't address here. (For example, SCO goes into this
entire long thing about how IBM is asking for dismissal of claims with prejudice
and IBM can't do that or has to ask the other judge first or something. All IBM
says here even in reference to that is "we aren't asking for dismissal of
claims with prejudice". Is stating the obvious actually enough in a court
case?)

So, when do you think we can expect to hear back from the judge about all of
this? The judge is now staring at two motions from IBM which would significantly
limit the scope of SCO's case. Both motions entirely boil down to "we just
want SCO to have to follow normal laws and court procedures", but still,
within the strange world of the SCO-IBM case this is big stuff, and it's all in
the judge's hands now. How long could we potentially be waiting on all of this?

[ Reply to This | # ]

Where's AllParadox?
Authored by: sander123 on Tuesday, June 27 2006 @ 03:42 AM EDT
Does anybody know if AllParadox left? He suddenly stoped writing mails about 3
weeks ago, shortly after he announced he wanted to write a book.

It's a great pity since I really enjoyed reading his commentaries. The more so
since now the memoranda start pouring in again.

Sander.

[ Reply to This | # ]

Relitigation of Apple v. Microsoft
Authored by: Reven on Tuesday, June 27 2006 @ 03:45 AM EDT
It looks like SCO wants to turn this into a relitigation of Apple V Microsoft - the look and feel lawsuit.

From Wikipedia:
Apple claimed the "look and feel" of the Macintosh operating system, taken as a whole, was protected by copyright, and that each individual element of the interface ... was not as important as all these elements taken together.
So now SCO wants us to think the Linux's general way of doing things is too much like SCO's? This seems to have even less merit than Apple's case did. In Apple's case there was no published general "gui" standard - there is a Posix standard for Unixy operating systems.

Perhaps the boys at Boies are getting a little desperate. One has to wonder why they would be drawing this out so painfully - does being a nuisance law firm earn points in legal circles?

---
Ex Turbo Modestum

[ Reply to This | # ]

From the tone of this
Authored by: Anonymous on Tuesday, June 27 2006 @ 04:07 AM EDT
I get the impression that IBM's council are actually angry now. Not stupid
angry, fortunately, but cold angry. Maybe I'm projecting, but I get the feeling
that they don't just want to beat SCO; they want to crush and humiliate them,
and their council, in front of the whole world. I hope so. I really do.

[ Reply to This | # ]

I just hope that
Authored by: Anonymous on Tuesday, June 27 2006 @ 04:28 AM EDT
The judge in this case act like referee in fifa worldcup 2006 in germany.
Unfortunately, I've never seen a yellow card, red card, penalty kick in this
case.

[ Reply to This | # ]

"To state this argument is to refute it."
Authored by: mickkelly on Tuesday, June 27 2006 @ 05:03 AM EDT
Priceless! I think that says it all.

Methinks IBM now starts to make fun of SCO/BSF, no?

---
- may you ever drink deep -

[ Reply to This | # ]

Correcting a misconception
Authored by: Anonymous on Tuesday, June 27 2006 @ 05:44 AM EDT

A lot of the postings here sound pretty happy. As though SCO were "losing" in some sense.

Let me just remind people what this lawsuit is really about. The job SCO took on, funded by Microsoft, was to generate litigation involving Linux and drag it out for a long as possible. As long as that litigation is continuing, Microsoft can use it to generate FUD which will ensure that large corporations will not convert their operations to Linux. For a corp with deep pockets, decision-makers (usually rightly) try to avoid anything that looks like a possible source of legal risk.

SCO is doing this job pretty competently. The outcome of the litigation is irrelevant. You can see evidence of their success in articles like this one in Internet news, which just last week said, correctly, that the 2.6.x Linux kernel was facing a legal challenge.

Microsoft does not have to spread the FUD publicly. High-level Microsoft execs have contacts with high-level execs in just about every large corporation. That's where a couple of key words get dropped about legal risk now and then. And that's where Microsoft is getting a good return on the money it spent on SCO.

[ Reply to This | # ]

Destruction of evidence?
Authored by: Dark on Tuesday, June 27 2006 @ 05:57 AM EDT
"To make matters worse, SCO’s delay in identifying the material has no
doubt resulted in the destruction of evidence relating to SCO’s own Linux
activities"

I don't get why this would happen at all, let alone with "no doubt".
What are they talking about here?

[ Reply to This | # ]

Puzzled by IBM's wording
Authored by: chris_bloke on Tuesday, June 27 2006 @ 06:09 AM EDT

I'm probably missing something, not being familiar with US law or proceedings, but to me this reads like a mistake by the IBM lawyers:

SCO may not challenge as misused (by expert report or otherwise) any material not specifically identified as misused by IBM in the Final Disclosures.

Shouldn't that read:

SCO may not challenge as misused (by expert report or otherwise) any material not specifically identified as misused by SCO in the Final Disclosures.

The critical part being that SCO identify the parts being misused as I'm pretty damn sure that IBM aren't admitting to anything being misused!

It's in the original PDF's, so it's not a transcription error by the volunteers (much kudos to them).

[ Reply to This | # ]

I think SCO know they will lose this
Authored by: Anonymous on Tuesday, June 27 2006 @ 06:42 AM EDT
These claims are sacrificial, an attempt to confuse the issue over something SCO feels is more important. SCO's real objective is to protect the vague methods and concepts claims that did appear in the final disclosures, but were so vague that they failed to identify with specificity what IBM had done wrong.

They are burying the court in paper over these new claims, with the arguments being concentrated over whether they were present in the final disclosures. The result, they hope, will be

  • they lose this round completely; but,
  • the court fails to take the specificity requirements into consideration and allows the bulk of SCO's vague methods and concepts claims in the final disclosures to survive. The court might also be inclined to lean in SCO's direction on this having inflicted such a "big loss" on them over the untimely claims.
This, by itself, would be unjust and probably make it very difficult to dispose of the case completely by summary judgments.

[ Reply to This | # ]

IBM's Reply Memo in Support of Motion to Confine/Strike SCO's Claims
Authored by: Anonymous on Tuesday, June 27 2006 @ 07:58 AM EDT
I wondered why IBM does not say specifically which parts of the experts reports
should be thrown out, but I think I get it now.

If the court enters the order as they propose they simply can argue "None
of this report adresses anything from the final disclosures, so it's not proving
IBM guilty of anything".

The material from the final disclosures acts as a sieve. Anything not in there
falls right through.

TToni

[ Reply to This | # ]

An order to enforce a previous order?
Authored by: Anonymous on Tuesday, June 27 2006 @ 08:43 AM EDT
The fact that the court needs to issue an order to enforce a previous order says
a lot about this case!

“IT IS HEREBY ORDERED THAT, as provided in the Court’s Order of July 1, 2005,
and agreed by the parties, SCO may not challenge as misused (by expert report or
otherwise) any material not specifically identified as misused by IBM in the
Final Disclosures.”

This order is absurd in a normal case. It's just highlights the fact that the
court is letting SCO get away with ignoring orders. Orders mean nothing to SCO
until a second "and I really mean it" order is issued.

This is an embarrassment to the courts.

[ Reply to This | # ]

SCO writes textbook for gaming the court system
Authored by: Anonymous on Tuesday, June 27 2006 @ 09:00 AM EDT

Say what you want about the merits (which don't seem to matter much), SCO and
Boies have rewritten the textbook in how to game the courts. This is their
victory, as a warning to other companies.


[ Reply to This | # ]

Don't forget McBride's May 1, 2003 comments
Authored by: eric76 on Tuesday, June 27 2006 @ 11:07 AM EDT

From SCO: Unix code copied into Linux published May 1, 2003:

"We feel very good about the evidence that is going to show up in court. We will be happy to show the evidence we have at the appropriate time in a court setting," McBride said. " McBride said. "The Linux community would have me publish it now, (so they can have it) laundered by the time we can get to a court hearing. That's not the way we're going to go."

That "appropriate time in a court setting" has already passed and they were obviously not happy to show it then.

At the very least, it shows that they already had the so-called evidence. So they can't claim to have not known it until now.

If you read it one way, it looks like they have no intenton of showing it until the trial.

[ Reply to This | # ]

IBM has lost this one
Authored by: DaveJakeman on Tuesday, June 27 2006 @ 11:13 AM EDT

"At bottom, SCO’s argument makes no sense."

Has IBM not realised it is litigating against the Chewbacca Defense?

---
Shampoo for my real friends, real poo for my sham friends - not Francis Bacon
---
Should one hear an accusation, try it out on the accuser.

[ Reply to This | # ]

You obviously don't understand SCO case...
Authored by: CPD on Tuesday, June 27 2006 @ 01:24 PM EDT
"Your honor, we release our super secret methods and technologies into
Linux under a license allowing anyone to modify and share them. IBM then had the
audacity - Audacity, I say - to take us at our word. This naive and
unjustifiable trust is causing us irreprable damage. We deserve $
billions."

---
Just when I thought it couldn't get any wierder, SCO proved me wrong again.

[ Reply to This | # ]

IBM's long term strategy
Authored by: Yossarian on Tuesday, June 27 2006 @ 02:28 PM EDT
>I noticed five or six times when IBM at least implies that
>SCO is not being truthful or straightforward. At some
>point, one has to ask, why doesn't SCO's legal team
>realize the whole world is watching?

I think that a poker analogy is in order.
There are three basic "types" of poker players:
1) A beginner. You can read his cards on his face.
2) Poker face. He may have a royal flush, or nothing at
all, but his face remain the same.
3) A killer professional. He behaves just like #1, and
looks like an easy target. After a couple of hours you
find yourself with no money and you discover that there
is *NO* connection between his cards and his face. While
you were building theories to link his facial expressions
to his cards, he was sucking all your money.

IMO IBM lawyers are like the killer poker player. SCO
did such a sloppy job because it did not realize what it
was facing. Those "nice guys" looked like an easy target
that would never strike back hard. Now, that SCO made
enough mistakes, IBM's lawyers pick them one by one and
show them to the court. SCO spent the good will of
the court on trivial matters, e.g. a defective subpoena
to Intel. IBM made its best to keep the court friendly
by not raising trivial issues, even when it had a point.

Now, when we get to the heart of the matter, IBM gives
a critical strike. It tries to use SCO's errors, and
the court's good will, to block any chance that SCO
had ever had to reach a jury trial. And, legally
speaking, IBM has killer arguments.

[ Reply to This | # ]

What does this mean?
Authored by: Anonymous on Tuesday, June 27 2006 @ 03:25 PM EDT
"To make matters worse, SCO’s delay in identifying the material has no
doubt resulted in the destruction of evidence relating to SCO’s own Linux
activities, which would prejudice IBM and, at a minimum, complicate defensive
discovery."


Does this mean that SCO is literally destroying/covering up evidence? And if
so, isn't that illegal? And isn't that a pretty serious charge to level - is
there actual evidence of this?

Apologies in advance for being a complete newb and the potentially dumb
questions - I've been following the case loosely but legalese confuses me and
I'm not as familiar with the case as many of you. I too want this crap to be
done with.

[ Reply to This | # ]

IBM's language
Authored by: MacUser on Tuesday, June 27 2006 @ 04:06 PM EDT
I'm intrigued by IBM's choice of language. All they want, they say, is a simple order. They even provide the wording. If the court denies them outright, then it is clearly ordering the opposite of what IBM have requested. And the opposite (or negative) of IBM's proposed order goes something like this:

"IT IS HEREBY ORDERED THAT, despite what was provided in the Court’s Order of July 1, 2005, and agreed by the parties, SCO may challenge as misused (by expert report or otherwise) any material not specifically identified as misused by IBM in the Final Disclosures."

Powerful grounds for an appeal, one would imagine!

[ Reply to This | # ]

2AM?
Authored by: snorpus on Tuesday, June 27 2006 @ 04:47 PM EDT
You're assuming PJ follows EDT.

She could be in, oh, Borneo or someplace.

---
73/88 de KQ3T ---
Montani Semper Liberi
Comments Licensed: http://creativecommons.org/licenses/by-nc/2.0/

[ Reply to This | # ]

  • 2AM? - Authored by: PJ on Wednesday, June 28 2006 @ 05:03 AM EDT
MS Cracking down....
Authored by: kberrien on Tuesday, June 27 2006 @ 04:56 PM EDT
It appears MS is cracking down everywhere.

First, I have no problem with MS enforcing CAL's and the like via software &
key checking. Its within their rights to protect against piracy.

But it appears, that if for instance a client without a CAL (or you've run out)
connects to a server it'll phone home. Ie, MS can come in the door and say, not
just, you should buy more licenses, but you've already violated your license.
The system should deny the connection on licensing grounds, not stand by and let
you violate your license, and just log it. I see an implicity there...

The big mistake in all this is that volume license cusotomers are not used to
this, and it'll be seen as an extra expense and hassle, to the degredation of MS
image and usage. Not just SCO is shooting itself in the foot.

MS's stock is dropping, and there sales future doesn't look so good, so they are
trying to squeeze what they can, especially now they have competition.

Unfortunately they don't have the wisdom to look at SCO as an example. The
other scrary thought... if the pocket books get bad enough, will MS become the
next SCO in 2015?

... oh, not again...

[ Reply to This | # ]

Rule 15?
Authored by: Anonymous on Tuesday, June 27 2006 @ 08:47 PM EDT
Marbux points out that IBM is blocking SCO's attempt to allow new evidence in
via rule 15.

But it's also worth looking at what grounds IBM is basing their motion.

Document 695, the original motion begins "Pursuant to Rules 1, 26, 33 and
37 of the Federal Rules of Civil Procedure..."

The rules are here:
http://www.law.cornell.edu/rules/frcp/#chapter_i

1. Scope of Rules

26. General Provisions Governing Discovery; Duty of Disclosure

33. Interrogatories to Parties

37. Failure to Make or Cooperate in Discovery; Sanctions

Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Perry Mason Moment?
Authored by: Steve Martin on Tuesday, June 27 2006 @ 08:54 PM EDT

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Could this be what TSG has been depending on all this time to allow them a "Perry Mason Moment" in the trial? IANAL, but it seems to me in reading this that, if TSG had brought up their new claims during trial (rather than now), the judge would have had to seriously consider admitting them. Or am I reading this wrong?

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

[ Reply to This | # ]

  • Perry Mason Moment? - Authored by: Anonymous on Tuesday, June 27 2006 @ 09:45 PM EDT
    • In Perry Mason - Authored by: Anonymous on Wednesday, June 28 2006 @ 07:40 AM EDT
Time for an Amended Declaration from Sontag?
Authored by: sk43 on Tuesday, June 27 2006 @ 09:25 PM EDT
In its second amended complaint, SCO accused IBM of the following with respect to JFS:
99. ... In violation of the IBM Related Agreements and Sequent Agreements and legal obligations regarding UNIX System V, including maintaining System V source code and any modifications or derivative works in confidence, IBM contributed key technology to Linux for enterprise use. Among the numerous contributions are the AIX Journaling File Systems,...
In his Declaration of Nov 30, 2004, Chris Sontag, under penalty of perjury, made the following statements:
5. SCO did not know that IBM had contributed source code to Linux in violation of its (and Sequent's) SVRX licenses until December 2002 or January 2003.

...

8. SCO identified JFS in its marketing as "developed by IBM," but SCO did not know that JFS was derived from SCO's proprietary software licensed to IBM, or that it was contributed to Linux by IBM in violation of IBM's agreements with SCO.

Oh, really? Then why is it that in the following UnitedLinux whitepaper, which is dated Nov 7, 2002, a full month before SCO's astounding discovery, and which states that "Industry leaders ..., SCO Group, ... have formed a consortium to develop the high quality operating system called UnitedLinux", we find the following statement:
JFS was developed by IBM under the GPL license and is ported from its AIX systems.
Perhaps Sontag would be well served by reading his own company's literature, which, until earlier today, was also available on the www.caldera.com website. Perhaps he has enough clout at SCO to get it restored.

[ Reply to This | # ]

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