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IBM's Greatest Hits - Ex. 14, IBM's 4th Set of Interrogatories, RfDs |
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Thursday, November 16 2006 @ 09:04 AM EST
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Here's Exhibit 14, IBM's 4th Set of Interrogatories and 4th Request for Production of Documents, as text. It's another of the 597 exhibits IBM has introduced to support its summary judgment motions that we are gradually putting into text. The date is March of 2004, and as you can plainly see, IBM asked SCO to provide the following: INTERROGATORY
NO. 15:
For each line of code and other material identified in response to
Interrogatory Nos. 1-13, please state or identify (a) whether it
constitutes an idea, procedure, process, system, method of operation,
concept, principle or discovery and, if not, why not and what it
constitutes;...
So when SCO tells the judge, as it did at the last hearing regarding SCO's objections to Magistrate Judge Brooke Wells' June 28 Order, that it wasn't asked to provide lines of code with specificity, is that true?
So you can evaluate for yourself, here is part of what SCO's attorney, Stuart Singer, said at that hearing: At tab 22, we reproduce what IBM had proposed
this Court include in its July order. It's July 2005
order said that the parties should disclose misuse of
materials with specificity. It didn't say anything about
line coordinates of code. IBM has proposed Language
which talks about providing, for each misused item,
version, file and line of code and origin information.
The Court did not include that in its order. We believe
it was reasonable for the Court not to include it in its
order because the type of specificity required and
available is going to differ depending on what the source
material has. We are being sanctioned as though this was
in the order, when in fact it isn't.
Now, with respect to the nine coordinates of
code -- and I point this out at tab 23 -- there has never
been an express order on the subject. This whole
position -- and I am not going to go into detail on all
these because I think that the briefs set these forward.
What's clear is there is no express orders on the subject
of nine coordinates of source code. That is something
which IBM seeks to glean from these discovery requests.
Until this whole proceeding on the motion to
strike our claims, there has been no consideration or
argument on the level of specificity that should be
provided for method and concept disclosures where source
code is not a part of the disclosure, and there has been
no order, following the December submissions, that tells
us that you need to provide X, Y and Z or you will have
your claims struck. Instead, the order just goes
directly to striking those claims.
Now, I'd like to point out a few things about
the discovery that is now being cited in addition to the
July 2005 order which was the basis for the original
motion. Piggybacked on top of that has been discovery
requests. At tab 25 -- this is IBM's request -- their
interrogatory, principal interrogatory that is at issue
here, does ask for identification of product, file and
line of code. But it qualifies it with the words "where
appropriate," which is an important qualification because
if you don't have a source code disclosure, you can't
create coordinates. To which, when it was his turn to speak, IBM's attorney, David Marriott, said: Second undisputed fact, Judge, is that because
of the size of the universe of potentially implicated
codes, methods and concepts, IBM propounded a series of
discovery requests which are illustrated at tab 5 of the
book in which, contrary to what Mr. Singer just argued,
IBM asked in very specific terms for. And I will walk
Your Honor through this, with the Court's permission,
31
momentarily; version, file and line information with
respect to every one of the allegedly misused operating
system elements.
Undisputed fact number 3, Judge. In response
to IBM's discovery requests, in SCO's final disclosures
of allegedly misused information, SCO failed, as to 187
of its 294 items, to identify even the most basic
identifying information, version, file and line
information. And if Your Honor will look at tab 6 of the
book which we've provided, you will see there an
illustration of SCO's failings in this respect. As to
not a single one, Judge, of the 187 items did SCO provide
line information relating to System V. Not a single line
of System V code is identified with respect to any of
those 187 items. As to AIX and Dynix, which are
alternative categories, if you look at the middle two
columns, not a single line of AIX or Dynix code is
provided with respect to those two sets of operating
systems.
And finally, now, with respect to Linux, SCO
provided line information with respect to three of the
187 items of allegedly misused information. And, as to
those three, Judge, they failed to provide even version
information for the supposed improper disclosures. There
are, by rough estimation, a hundred -- 500 plus versions
of Linux.
Those are the three undisputed facts I would
submit are of great consequence to this motion.
In short, SCO didn't just miss; it missed by a mile. This document, Exhibit 14, is one of several interrogatories that IBM sent to SCO, as mentioned by Marriott, and you can plainly see, as can Judge Dale Kimball, that it asks for specificity from SCO, mentioning lines of code with respect to methods and concepts. *************************
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]
Attorneys for
Defendant/Counterclaim-Plaintiff
International Business Machines
Corporation
IN THE UNITED
STATES DISTRICT COURT
FOR THE
DISTRICT OF UTAH
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THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
-against-
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S FOURTH SET
OF INTERROGATORIES AND
FOURTH REQUEST FOR
PRODUCTION OF DOCUMENTS
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells |
Pursuant to Rules 33 and 34 of the Federal Rules of Civil Procedure,
defendant/counterclaim-plaintiff International Business Machines
Corporation ("IBM") submits
this Fourth Set of Interrogatories and Fourth Request for the
Production of Documents to plaintiff The SCO Group, Inc. ("plaintiff").
Plaintiff is directed to give answers to the written interrogatories
separately, fully, in writing, under oath, and in accordance with the
following definitions and instructions. Plaintiff is requested to
produce the documents and things in its possession, custody or control
pursuant to the document requests.
Answers to the interrogatories, and all documents and things
responsive to the document requests, must be served on the undersigned
attorneys for IBM at the offices of Cravath, Swaine & Moore LLP,
825 Eighth Avenue, New York, NY 10019 within 30 days of service of
these interrogatories and document requests.
Interrogatories
INTERROGATORY
NO. 15:
For each line of code and other material identified in response to
Interrogatory Nos. 1-13, please state or identify (a) whether it
constitutes an idea, procedure, process, system, method of operation,
concept, principle or discovery and, if not, why not and what it
constitutes; (b) whether it can be expressed in another way and, if so,
how; (c) whether it is in or has ever been in the public domain and, if
so, how, and if not, why not; and (d) whether and to what extent it is
dictated by factors external to any operating system of which it is
part (such as the mechanical specifications of the computer on which a
particular program is intended to run, compatibility requirements of
other programs with which a program is designed to operate in
conjunction, computer manufacturers' design standards, demands of the
industry being serviced,
2
and widely accepted programming practices within the computer
industry) and, if so, how, and if not, why not.
INTERROGATORY
NO. 16:
For each line of code and other material identified in response to
Interrogatory Nos. 1-13, please state or identify (a) whether it
constitutes expression protectable under copyright law and, if so, by
what copyrights and in what specific respect; (b) the origin of the
material, including its author(s) and the circumstances of its
creation; (c) whether it has been published or distributed without a
copyright notice and, if so, the circumstances of its publication or
distribution, including when, to whom, to what extent, for what
purpose, and with or without what rights.
Document
Requests
REQUEST NO.
77:
All documents concerning SCO's responses to Interrogatory Nos. 15
and 16. Instructions and Definitions
Defendant/counterclaim-plaintiff IBM hereby incorporates by
reference all instructions, definitions and rules contained in Rule 33
and Rule 34 of the Federal Rules of Civil Procedure and the local rules
or individual practices of this Court and supplements them with the
definitions and instructions set out in Defendant IBM's First Set of
Interrogatories and First Request for the Production of Documents,
which are incorporated herein by reference.
3
DATED this 29th day of March, 2004.
SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Counsel for
Defendant/Counterclaim-Plaintiff
International Business Machines
Corporation
Of counsel:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Donald J. Rosenberg
Alec S. Berman
[address, phone]
Attorneys for
Defendant/Counterclaim-Plaintiff
International Business Machines
Corporation
4
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]
Attorneys for
Defendant/Counterclaim-Plaintiff
International Business Machines
Corporation
IN THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF UTAH
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THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
-against-
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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CERTIFICATE OF SERVICE OF
DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S FOURTH SET
OF INTERROGATORIES AND
FOURTH REQUEST FOR
PRODUCTION OF DOCUMENTS
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells |
I hereby certify that on the 29th day of March, 2004, a true and
correct copy of DEFENDANT/COUNTERCLAIM-PLAINTIFF
IBM'S FOURTH SET OF
INTERROGATORIES AND FOURTH REQUEST
FOR PRODUCTION OF DOCUMENTS was delivered to the following:
By Hand Delivery:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
By U.S. Mail, postage prepaid:
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Kevin P. McBride
[address]
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Authored by: feldegast on Thursday, November 16 2006 @ 09:39 AM EST |
If needed
---
IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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Authored by: WhiteFang on Thursday, November 16 2006 @ 09:42 AM EST |
Clickies if you got 'em.
---
DRM - Degrading, Repulsive, Meanspirited 'Nuff Said.
"I shouldn't have asked ... "[ Reply to This | # ]
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Authored by: Terrier Tribe on Thursday, November 16 2006 @ 09:55 AM EST |
"We didn't identify any lines of code in response to your Interrogatory
Nos. 1-13, therefore we don't need to respond to #15 or 16."
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 16 2006 @ 09:55 AM EST |
Part of Singer's argument is that, although IBM proposed certain wordings, they
didn't make it into the court order. Is he right? I could not, for instance,
find any reference to Interrogatory 15 in the court order.
The question is: Does SCO have to provide everything IBM requested or just what
made it into the court order?
As usual, IHNC
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 16 2006 @ 09:59 AM EST |
Actually, I'm afraid this does not mean much as it is phrased. Indeed IBM is
saying "for each line of code and other material identified in response to
Interrogatory Nos. 1-13", so SCO is just basically saying: "Well,
maybe... But
we did not provided any line of code in interrogatory Nos. 1-13, so this is a
moot point..."
That doesn't mean that Interrogatory 1-13 did not require (implicitly or
explicitly) to identify lines of code though...
NNP
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Authored by: Anonymous on Thursday, November 16 2006 @ 10:36 AM EST |
I can summarize the contract portion of this case, and it is so simple.
1. IBM (and predecessors) signed contracts with SCO's predecessors to keep
System V code confidential.
2. SCO must show what part of System V code IBM released.
Everything else is fluff.
Even if the "methods and concepts" are what was revealed, SCO must
still specify the lines of System V that embody those methods and concepts.
Even if you accept the dubious assertion that AIX and Dynix/ptx are derivative
works of System V, SCO must specify the lines of AIX or Dynix/ptx that embody
the methods and concepts. Finally, SCO must show the code in Linux that
embodies the methods and concepts.
I know that this is exactly what IBM has been saying for years. It is just
that, while reading the flurry of information on Groklaw recently, I found
myself trying to look at things without my normal bias against SCO. I highly
recommend that everyone here try it. It is amazing the degree of clarity that
be achieved by reading the words SCO uses without prejudice. They keep saying
that they have this e-mail or that Web post that proves IBM broke the contract,
but SCO refuses to admit that they have to show what it is that IBM actually
released that IBM was obligated to keep secret in order to have a case.
SCO's lawyers are so indignant that they don't have admissible evidence to
support their grandiose allegations. At what point did the burden of proof
shift away from the plaintiff? I'm sure I read somewhere that the U.S. judicial
system requires the plaintiff to actually prove their case.
[ Reply to This | # ]
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- Almost... - Authored by: pscottdv on Thursday, November 16 2006 @ 11:38 AM EST
- Not quite - Authored by: Anonymous on Thursday, November 16 2006 @ 12:10 PM EST
- Not quite - Authored by: pscottdv on Thursday, November 16 2006 @ 03:15 PM EST
- Not quite - Authored by: Anonymous on Thursday, November 16 2006 @ 03:45 PM EST
- Not quite - Authored by: pscottdv on Thursday, November 16 2006 @ 03:56 PM EST
- Judicial strategy - Authored by: Anonymous on Thursday, November 16 2006 @ 09:33 PM EST
- Not quite - Authored by: Anonymous on Friday, November 17 2006 @ 09:18 AM EST
- Almost... - Authored by: Steve Martin on Thursday, November 16 2006 @ 01:27 PM EST
- Almost... - Authored by: pscottdv on Thursday, November 16 2006 @ 03:22 PM EST
- Almost... - Authored by: Anonymous on Thursday, November 16 2006 @ 03:29 PM EST
- Almost... - Authored by: aha on Thursday, November 16 2006 @ 02:38 PM EST
- Almost... - Authored by: pscottdv on Thursday, November 16 2006 @ 03:12 PM EST
- Almost... - Authored by: Anonymous on Friday, November 17 2006 @ 02:57 PM EST
- Epiphany (This case is so simple) - Authored by: Anonymous on Thursday, November 16 2006 @ 03:05 PM EST
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Authored by: Anonymous on Thursday, November 16 2006 @ 11:15 AM EST |
It can be argued that taken as a whole AIX and Dynix/ptx are derivatives of
Unix. But if you look at any particular feature of AIX or Dynix/ptx e.g. JFS,
RCU, it is simple to show that those units of functionality do not exist in the
parent Unix and therefore are not in themselves derivative works.
So is it not a fairly simple argument to say that while AIX is a derivative of
Unix and IBM is required to keep Unix methods and concepts secret... that those
features which exist in the derived O/S (AIX) that did not previously exist in
the parent (Unix) are not Unix derivative features and therefore are not
restricted by the license.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 16 2006 @ 11:22 AM EST |
... which constitutes an idea, procedure, process, system, method of operation,
concept, principle or discovery and, if not, why not and what it constitutes?
Is it appropriate to talk about other material when lines of code is what IBM is
looking for?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 16 2006 @ 12:19 PM EST |
Maybe I don't understand it correctly so please help.
If an IBM Linux developer has Unix code, maybe even in a version of a Linux
routine on his machine but this is not released, ie is totally private, how can
they be accused of releasing Unix code. For all we know someone, internal to
IBM, may have checked the code and told them to get it out as it had no business
to be in there.
For the acusation to be made, that source or method and concept, had been made
public then there would have to be a piece of public Linux code that contained
this. If public Linux code does not have this then there has been no
disclosure.
If this has been disclosed then there would be a clear piece of code that was
either copied or followed the method or concept and that code has a unique
reference. Line, file, version - right?
If the AIX CMVC had been used, by the experts "MR. SINGER: He said that the
CMVC system was
produced. And we have used that, and our experts, as
they have testified, including Mr. Rochkind in his
declaration, used that a great deal to identify code
disclosures.", to identify the infractions then they would know what code
was being examined and be able to identify it with precision - right? "Ooo,
look, these lines here have been copied" or "look, they use the same
technique here".
Please pick holes or lart me, as is your want. I am trying to get my thinking
straight on this.
Tufty
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Authored by: dmarker on Thursday, November 16 2006 @ 04:40 PM EST |
In seems tSCOg repeatedly take the line that it is up to everyone else (esp IBM)
to produce specific evidence or details of what and why tSCOg need to produce
specific evidence or details.
If there is an alternate interpretation, even an obviously dubious one, of any
thing IBM requests or states or the Judges order, tSCOg will take it and then
parry the frustrated responses be it from IBM or the Judge or the Judge
Magistrate on the case.
This case often seems a blot on how to conduct fair and equitable law.
DS Marker
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Authored by: vizsladriver on Thursday, November 16 2006 @ 06:22 PM EST |
or does anyone else find it interesting that the response and amended response
to this set of interrogatories are sealed?
Hmmm... :)[ Reply to This | # ]
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