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A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing - Update on Baystar
Tuesday, March 01 2011 @ 05:13 PM EST

A consultant hired by SCO in 2004 to compare UNIX and Linux, with the thought he could be used as an expert at trial, says that, after days and days, his comparison tool found "very little correlation". When he told that to SCO, it paid him and he never heard from SCO again.

Interesting, huh? And how odd that SCO went on to sue folks for alleged copyright infringement even after that happened, don't you think?

This new information appears in a new book to be published in April and now available as a "Rough Cuts" version on the Safari online book service. The book is titled "Software IP Detective," by Bob Zeidman, and in Chapter 26, he tells us this anecdote.

Here's a screenshot of the book's cover:

And here's the information about the test the author ran:

The text of the footnote reads like this:
For the sake of full disclosure, I was hired by SCO for a month in 2004 as a consultant and potential testifying expert witness in this case. The code analysis had already been under way for a while by other consultants on the case. My CodeMatch tool for measuring source code correlation was fairly new at that time. I was really excited and saw this as an opportunity to prove my tools and “make my reputation in this field.” The SCO attorneys gave me some code samples from SCO UNIX and Linux to compare. CodeMatch chugged along for days before generating a report showing very little correlation. The attorneys thanked me, paid me my very generous retainer (that they had put into my contract), and I never heard from them again.

So, my head is spinning, because what I'm thinking is: does this demonstrate that SCO knew there was no basis for their copyright infringement claims against IBM, Novell, AutoZone, and the world, at least by 2004? We'd have to do discovery on the matter to know for sure, but if they deliberately buried evidence, I would imagine it could impact damages due to SCO's victims, not just from SCO but conceivably from SCO's lawyers as well, should it be established that the litigation was frivolous and SCO knew it way back in 2004. I'm sure SCO's lawyers will have a long song and dance about it to deny it all, but it's certainly a huge red flag to me.

And I'm guessing IBM and any future defendants SCO might go after will bring this matter up. For one thing, some BSD code is in Linux appropriately, and there is also the concept of "de minimis" in copyright infringement law. Another question that pops into my mind is this: did SCO tell its other experts about this result?

Early in the SCO saga, Groklaw did a similar code comparison, and so did Eric Raymond. I'm sure others did too, and we couldn't find anything to shake a stick at either. Why, then, did SCO go forward? And why are folks trying to buy the assets of this pitiful company? If they are dreaming of a big payday from suing people, I think they are dreaming. Anyway, I thought you'd be interested in this anecdote and all that it implies. What it says to me is that it doesn't matter who owns the copyrights. Linux doesn't infringe them.

Update: Do you remember Baystar? It invested in SCO briefly, because Microsoft would be happy if they did, as Larry Goldfarb testified was his motivation. Here's the latest on Larry Goldfarb from the San Francisco Chronicle:

The Securities and Exchange Commission has charged Marin County hedge fund manager and philanthropist Lawrence "Larry" Goldfarb with secretly diverting $12 million in investor money to other uses including an investment in a San Francisco record company and charitable contributions.

Goldfarb runs Baystar Capital Management, a Larkspur firm that manages private investment funds including Baystar Capital II. The SEC alleges that since at least 2006, he and his firm have been misusing the proceeds from that fund's highly profitable "side pocket" investments....

He and Baystar Capital Management settled the SEC charges without admitting or denying guilt. They agreed to pay about $14 million in disgorgement and interest to investors. Goldfarb also agreed to pay a $130,000 penalty and not associate with an investment advisor or broker for five years.

An update to the article says that he and his company "have entered into a deferred prosecution agreement with the U.S. Attorney" whereby Goldfarb admitted to one count of wire fraud and that $12 million in investor funds were transferred to two entities he owns which invested in -- among other things -- Marin real estate and OM Records. "The U.S. Attorney's office in San Francisco will not charge him if he complies with the terms of the agreement, which include paying $12.1 million in restitution to BayStar investors and a three-year ban from the investment industry."

One has to watch those pure financial animals, y'all.


  


A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing - Update on Baystar | 256 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
"Why, then, did SCO go forward?"
Authored by: Anonymous on Tuesday, March 01 2011 @ 05:30 PM EST
Because their lawyers told them they could.

[ Reply to This | # ]

Corrections Here, please!
Authored by: perpetualLurker on Tuesday, March 01 2011 @ 05:31 PM EST

Please place the error->correction in the title.

Thank you! ...pL...

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

News Pick commentaries anyone?
Authored by: perpetualLurker on Tuesday, March 01 2011 @ 05:32 PM EST

Please remember to include a LINK since the article might
roll off of the page too quickly...

Thank you! ...pL...

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

Other consutants
Authored by: Anonymous on Tuesday, March 01 2011 @ 05:33 PM EST
And can we assume that those other consutants weren't telling SCO what they
wanted to hear either?

Certainly seems strange that they would use multiple consultants on the same
study and then use none of that at trial.

[ Reply to This | # ]

All things Comes go here, please!
Authored by: perpetualLurker on Tuesday, March 01 2011 @ 05:33 PM EST
Anyone working on translating the Comes articles please leave your information HERE.... Thank you! ...pL....

---
"Love is a snowmobile racing across the tundra and then suddenly it flips over, pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

Off-topic goes here please!
Authored by: perpetualLurker on Tuesday, March 01 2011 @ 05:35 PM EST

Anything ON-topic will lead to an assignment transcribing
all of Darl's court statements in ONE day...

.....even if'n yer head explodes...

Thank you! ...pL....


---
"Love is a snowmobile racing across the tundra and then suddenly it flips over,
pinning you underneath. At night, the ice weasels come." -- Matt Groening

[ Reply to This | # ]

" Tell 'im, he's dreamin' " - Darryl Kerrigan
Authored by: SirHumphrey on Tuesday, March 01 2011 @ 05:37 PM EST
The Castle (movie)

Just enter Tell 'im, he's dreamin' into Steve Ballmer's favourite search
engine ;)

Better still, buy/rent the movie.

[ Reply to This | # ]

when Kevin McBride leaked ...
Authored by: nsomos on Tuesday, March 01 2011 @ 05:43 PM EST
We got a chance to see what SCOG thought was evidence of
copying, when Kevin McBride leaked the sealed documents.

Those documents only showed how pitiful, weak, and outlandish
the claims of SCOG were. Far from being a smoking gun,
if anything it showed SCOG must've been smoking something
hallucinogenic to think that this was evidence of any sort
of improper copying. It was and still is really quite absurd.

So now we see again, SCOG knew or should have known,
that when it comes to Linux copying Unix, that there really
was no 'there' there.

[ Reply to This | # ]

A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing
Authored by: Anonymous on Tuesday, March 01 2011 @ 05:48 PM EST
"gave me some code samples from SCO UNIX and Linux"

How much is 'some'? To grant at least a little fairness, I don't think that
this can be used as direct evidence that SCO and/or their attorneys thus knew
there were no code conflict. Not to say they they didn't know anyways, of
course.

[ Reply to This | # ]

Multiple consultants are necessary
Authored by: SpaceLifeForm on Tuesday, March 01 2011 @ 06:00 PM EST
When you are trying to get the answer you want to hear.


---

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

[ Reply to This | # ]

A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing
Authored by: Stumbles on Tuesday, March 01 2011 @ 06:07 PM EST
So is this guys work a separate audit from the "internal audit" SCO
employees did?

I think at this point there is enough evidence the haul McBride into a criminal
court for fiduciary irresponsibility and racketeering.

At the minimum I think there is ample evidence for all the prior SCO employees
to haul him into civil court and empty his bank account

---
You can tuna piano but you can't tune a fish.

[ Reply to This | # ]

AutoZone
Authored by: Anonymous on Tuesday, March 01 2011 @ 06:15 PM EST
> copyright infringement claims against IBM, Novell, AutoZone,

My understanding of the AutoZone case was that it was not about source code
copyrights at all. It alleged that AutoZone copied binary library files from
OpenServer to Linux machines (which may have been some of the same machines that
previously ran OpenServer).

There were also some allegations about 3rd party software which seemed to me to
be irrelevant.

Novell case was about 'slander of title' not "copyright
infringement".

[ Reply to This | # ]

I wonder if this is the third such report....
Authored by: Anonymous on Tuesday, March 01 2011 @ 06:48 PM EST

When Santa Cruz had the business, they had performed such an evaluation with the same result.

Later, Darl had an evaluation performed (if I'm not mistaken around the time his buddy Anderer was involved). It was identified the finding was the same: either there was no match or the matches were traced back to equivalent lineage such as BSD.

I wonder if this disclosure is the one around the time of Anderer or if it is another that occurred after that.

One thing is for certain:

    With experts continually providing the same over and over, "that there is no 'there' there!", it's no a surprise the internal expert by the name of Sandeep Gupta "found" the missing code and coincidently received a Management position around the same time.

Each time another situation arises that shows yet another examination by a SCOG hired expert that found nothing, it raises - added to the serious lack of evidence SCOG provided the IBM Court records - even further weight to suggest SCOG was very much aware they had very little to no case to begin with.

RAS

[ Reply to This | # ]

His Bio on Amazon
Authored by: sscherin on Tuesday, March 01 2011 @ 07:16 PM EST
His Bio

The Book Sadly He's not the MIT deep diver.. He went to Cornell and Stanford University.

[ Reply to This | # ]

A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing
Authored by: Yossarian on Tuesday, March 01 2011 @ 07:40 PM EST
Question: I assume that IBM can find this consultant.
If IBM does, can IBM subpoena him to tell the article's
footnote under oath?

Can SCO block such testimony under lawyer-client privilege?

[ Reply to This | # ]

Why did SCO go ahead?
Authored by: The Mad Hatter r on Tuesday, March 01 2011 @ 08:44 PM EST

Because they thought it would be cheaper to pay them off than to fight the case
in court. That's been my opinion for some time now. Seriously, it's the only
answer that makes sense.

Of course I'm a major league cynic...


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

A Response To IBM's Summary Judgment Motion On CC10?
Authored by: sk43 on Tuesday, March 01 2011 @ 09:43 PM EST
IBM filed its motion for Summary Judgment on Counterclaim 10 (Declaration of
Noninfringement of SCO's Copyrights) [IBM-153] in May 2004. We know that SCO
had had three groups going "deep dives" into the code and claimed to
have found all sorts of "problems", but likely none was qualified to
testify as an expert. That might explain why Bob Zeidman was brought in.
Unfortunately for SCO, he did not give them the answers that they needed to
defeat IBM's motion. Hence Sandeep Gupta was pressed into service.

Judge Kimball [IBM-398]: "Viewed against the backdrop of SCO's plethora of
public statements concerning IBM's and others' infringement of SCO's purported
copyrights to the UNIX software, it is astonishing that SCO has not offered any
competent evidence to create a disputed fact regarding whether IBM has infringed
SCO's alleged copyrights through IBM's Linux activities."

SCO survived the motion, but just barely:

[ Reply to This | # ]

It would be interesting to ask him which SCO attorneys:
Authored by: webster on Tuesday, March 01 2011 @ 10:19 PM EST
.

Who signed the retainer contract;

Who gave him the code to compare;

To whom he gave his report; and

Whether he dealt with S. Singer or K. McBride?

.

[ Reply to This | # ]

A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing
Authored by: Anonymous on Tuesday, March 01 2011 @ 11:23 PM EST
Quite frankly, SCO has always ignored any and every suggestion that their
"worst case scenario" may not be entirely correct, under Ralph and
Darl, and to this very day, under a court appointed trustee...

It is entirely clear this was NEVER about what REALLY has happened.

[ Reply to This | # ]

Devil's Advocate Position
Authored by: rsteinmetz70112 on Tuesday, March 01 2011 @ 11:56 PM EST
The fact that one investigator found nothing does not mean that nothing was
there.

Nor does it imply that there is anything there.

The Author admits that his tools were new and therefore incompletely tested.

---
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 | # ]

A big payday
Authored by: Pogue Mahone on Wednesday, March 02 2011 @ 02:16 AM EST
Quoth PJ: "If they are dreaming of a big payday from suing people, I think
they are dreaming."

It depends who is paying ...

---
delta alpha victor echo at foxtrot echo november dash november echo tango dot
delta echo

I'm not afraid of receiving e-mail from strangers.

[ Reply to This | # ]

  • A big payday - Authored by: Anonymous on Wednesday, March 02 2011 @ 04:10 PM EST
Devil's Advocate: Absence of evidence, not evidence of absence
Authored by: Doghouse on Wednesday, March 02 2011 @ 08:49 AM EST
Sorry, but that's flawed. Taken in isolation, all it tells us is that, at one
point, SCO's lawyers were actively paying people to look for evidence of
similarities. That could have been from a profound belief in their existence on
the one hand or as the most speculative and wishful of fishing trips on the
other; we can speculate, but we can't tell which from this alone. Whichever it
was, though, when Zeidman's approach and tools failed to deliver anything of
value, they dropped him (probably because of that, although even that is an
assumption). Irrespective of their motives, why would they keep him on, unless
he had a deep reputation in the field (and by his own admission, he didn't)? He
was simply a guy who'd failed to deliver what his client wanted, and who,
presumably, would continue not to deliver. Trying to draw deeper conclusions
from this alone about what SCO did or did not actually know or believe, without
additional evidence, is simply unsound.

[ Reply to This | # ]

A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing - Update on Baystar
Authored by: Anonymous on Wednesday, March 02 2011 @ 09:34 AM EST
What I find really funny is after Novell won in court it gets bought up by a
consortium organized by Microsoft.

Oh what a tangled wave we weave.

[ Reply to This | # ]

Rough Cuts
Authored by: Anonymous on Wednesday, March 02 2011 @ 10:10 AM EST
Is that the definitive account of SCO's descent into self-destruction? Might be
an interesting reading, if only to see how much of Groklaw-collected material
can be found in it.

fb

[ Reply to This | # ]

Consultant Retainers are henceforth amended.
Authored by: webster on Wednesday, March 02 2011 @ 11:18 AM EST
.

The consultant Friedman's statements are damaging to his client SCO's
interests. SCO now wishes the retainer had a confidentiality provision
with a penalty. The retainer should permit discussion only with SCO
consent or court order. Hindsight through a black eye.

.

[ Reply to This | # ]

New tool + no copying shown = inconclusive
Authored by: Anonymous on Wednesday, March 02 2011 @ 11:50 AM EST
He was using a new tool and it didn't find any copied code. That could either
have meant there wasn't any copied code or that the new tool didn't work.
Inconclusive.

If the lawyers knew the Linux and SCO sample code included BSD code, then not
finding any copied code would indicate the tool wasn't working.

[ Reply to This | # ]

A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing - Update on Baystar
Authored by: Anonymous on Wednesday, March 02 2011 @ 12:28 PM EST
IANAL, but why didn't this come out in discovery?

[ Reply to This | # ]

Anyone going to the court today?
Authored by: tiger99 on Wednesday, March 02 2011 @ 12:43 PM EST
I have to go out, but hopefully when I return PJ will be in her Red Dress and SCO will be in Chapter 7, or will have been sold, but not to unXis, for $18.

Seriously though, I suspect that this will be the big one, as far as Gross' courtroom is concerned. Anything could happen. He could even kick them out of Chapter 11, and leave them at the mercy of IBM.....

[ Reply to This | # ]

A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing - Update on Baystar
Authored by: Anonymous on Wednesday, March 02 2011 @ 02:44 PM EST
I don't know whether it applies here or not, but lawyers on
big money cases will sometimes retain experts merely to
remove them from the pool of potential experts. All
potential experts are not equally credible. I want to
neutralize those most dangerous to my case. So, I hire you
as an expert to review my case, perhaps knowing full well
that you are not likely to see things my way. However, once
you have reviewed it and given me your unfriendly-to-my-case
opinion, you can no longer work as an expert for the other
party, nor even consult with him.

Further, I have no obligation to tell anyone about the
engagement. It was merely an expert opinion. I can ignore it
and move ahead with my case, and I can do so without running
afoul of the canons of ethical practice.

[ Reply to This | # ]

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