In SCO's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery, there is one section entitled "IBM's Characterization of the Presentation at the SCO Trade Show is False and Misleading."
Let's examine this one paragraph and see if that is true or if the shoe is on the other foot.
In order to do that, we'll be comparing what SCO wrote in its Memorandum with the slides in SCO's SCOForum presentation.
In order to follow along, you will likely wish to look at the slides themselves. If you go here you can find them as a Powerpoint presentation, and they can be viewed here as html. You can alternatively go to this page where we covered IBM's Motion to Compel Discovery, and you will find links to the Motion, the Memorandum of Law in Support, and all the exhibits, including the SCOForum slideshow.
I will present text from the slides as appropriate so you can follow along without skipping back and forth. First, here is the paragraph from the Memorandum of Law we will be looking at carefully, and I have highlighted the points we will address most particularly to compare with the slides:
"1. IBM's Characterization of the Presentation at the SCO Trade Show is False and Misleading.
"Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show. IBM incorrectly asserts that during that presentation, SCO identified 'four categories of alleged "misappropriation" by IBM: (1) literal coping; (2) derivative works; (3) obfuscation; and (4) non-literal transfers.' (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM. Slide 8, which is the only one to contain the terms 'literal copying,' 'derivative works,' 'obfuscation,' and 'non-literal transfers' does not mention IBM, or indeed anyone else. In fact, Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action. What makes IBM's use of this trade show material particularly misleading to this Court is that the code in question identified by SCO at the trade show and elsewhere was code from a licensee other than IBM. In fact, it was widely reported after the trade show that the example of improperly contributed code was from SGI, which has since publicly acknowledged its improper contribution. It is inconceivable that IBM is unaware that the code identified by SCO in its presentation was from SGI, not IBM. In any event, as code contributed by another licensee, it should be obvious to IBM that, despite its demands for this code, the identity of such code is not responsive to any of IBM's interrogatories."
As you can see, they accuse IBM of misleading the court. Let's see who is misleading whom, and we'll take it a piece at a time and look at the slides as we go along. First, SCO claims that the presentation was about contractual rights:
"Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show."
So, it's about contractual rights overall, according to SCO. However, a little further down, SCO characterizes Slide 8 as being a list of SCO's bases for a potential copyright infringement action:
"Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action."
They appear to be distinguishing Slide 8 from the rest of the presentation, saying this particular slide wasn't about contractual matters or trade secrets, rather about copyright, which they haven't accused IBM of. And in fact they pointedly say that IBM is not mentioned at all on Slide 8, and that further it's the only slide that mentions the four infringement terms IBM says SCO has accused them of and which SCO here is denying having ever publicly accused IBM of having done:
"IBM incorrectly asserts that during that presentation, SCO identified 'four categories of alleged "misappropriation" by IBM: (1) literal coping; (2) derivative works; (3) obfuscation; and (4) non-literal transfers.' (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM. Slide 8, which is the only one to contain the terms 'literal copying,' 'derivative works,' 'obfuscation,' and 'non-literal transfers' does not mention IBM, or indeed anyone else. In fact, Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action."
This may come as quite a surprise to those of us who have followed this story closely from the beginning, because it feels like that's all we've heard SCOfolk say and imply for about seven months. If you look at Slide 8, it's true that IBM is not mentioned by name on that slide. Here is the text:
"8. SCO UNIX System V Copyright Infringements in Linux®
"Linux is a registered trademark of Linus Torvalds
"Contracts, Agreements, and the Law
"Methods, structures and sequence from System V contributed to Linux kernels 2.4+
"Copying, pasting, removing legal notices, reorganizing the order of the programming structures
"Modifications of System V created by vendors contributed to Linux kernels 2.4+ in violation of contracts
"Line-for-line code copied from System V into Linux kernels 2.4+"
They are telling the judge that this slide is only about copyright, apparently so as to claim it couldn't be an accusation about IBM. But what does the slide itself say? -- "Contracts, Agreements and the Law." So is it really only about copyright? What did the author of the slide believe? As for their claim that this is the only slide to mention these four terms, this is a rather slick argument. It is true it is the only one to mention all four together on the same slide, but as you go through the slides one by one, you will see that in fact this Slide 8 is a summary of the four terms, but subsequent slides, beginning with Slide 9, mention each term in turn, and the subsequent slides give examples of each of these four terms, and the later slides do mention IBM by name, specifically on Slides 21 and 22.
For example, let's look at Slide 21. Here is the text:
"IBM Claimed Copyright Attribution for Transferring Dynix Code to Linux
"Copyright (c) International Business Machines Corp., 2001 This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details. You should have received a copy of the GNU General Public License along with this program; if not, write to the Free Software Foundation, Inc., 59 Temple Place - Suite 330, Boston, MA 02111-1307, USA. Author: Dipankar Sarma (Based on a Dynix/ptx implementation by Paul Mckenney )
This Slide 21, then, is an example they offer in the category of "derivative works" and IBM's name is used in the title. If Slide 8 is only about copyright when it mentions "derivative works" and it has nothing to do with IBM, what is this Slide 21 talking about? What about the next slide, Slide 22? It's an example of "non-literal transfers", another of the 4 terms listed in Slide 8, and again IBM is mentioned by name:
"Non-Literal Transfers - Methods and Concepts
"From: Niels Christiansen (firstname.lastname@example.org)
"Date: Thu Dec 06 2001 - 11:10:47 EST
"Are you concerned with increase in memory used per counter Here? I suppose that must not be that much of an issue for a 16 processor box.... Nope, I'm concerned that if this mechanism is to be used for all counters, the improvement in cache coherence might be less significant to the point where the additional overhead isn't worth it.
"...which may be true for 4-ways and even 8-ways but when you get to 32-ways and greater, you start seeing cache problems. That was the case on AIX and per-cpu counters was one of the changes that helped get the spectacular scalability on Regatta.
"IBM LTC, Kernel Performance
"Non-Literal Transfers – Methods and Concepts"
Whether this email can legitimately be used to prove an infringement is another discussion, but it is clear they used it for that purpose, and they pointed at an IBM employee. "Non-literal transfers" is one of the four terms on Slide 8, and this is an example of such a transfer, according to SCO, and yet they tell the judge that Slide 8 isn't about IBM?
Derivative works are also the topic addressed on Slide 18, "Use is Infringing if Scope of License Grant for Derivative Work is Exceeded", and Slide 19, "Examples of Significant Infringing Derivative Works Contributions to Linux 2.4/2.5", both listing NUMA, RCU, JFS, and XFS, and one adds NUMA and the other adds "Schedulers, Linux PPC 32- and 64-bit support, and Enterprise Volume Management System". Obviously, IBM is at a minimum under a cloud in this list. And Slide 20 lists exact numbers of files and lines of code under the title "Derivative Works" for RCU, NUMA, JFS, SFX, and SMP for a precise total of 1,549 files and 1,147,022 lines. Maybe more than a cloud, considering what Aberdeen Group analyst Bill Claybrook wrote SCO told him:
"One example of derivative code that SCO says IBM has released to Linux is IBM's AIX journaling file system (JFS) . . . Two other examples of derivative code that SCO says IBM has released to Linux is NUMA (nonuniform memory access) code and RCU (read, copy, and update) code developed by Sequent prior to IBM's acquisition of Sequent in 1999."
What about the other two terms on Slide 8, line-by-line copying and obfuscation? Let's take a look. Literal copying is handled on several slides, not just one. Slides 9-14, to be exact. SCO's assertion is that the code they showed later turned out to be SGI code, not IBM, so IBM has no reason to ask for SCO to hand it over in discovery. But if you look at the slides titled "Literal Copying", each one says this: "Line by Line Copying — One Example of Many", so SCO is pretending there was only one code example used at the slide show but we see several examples and in any case, the examples used were presented as just a sample of many others SCO could show. IBM is asking to see all of them, not just the sample code that turned out to be SGI code.
Obfuscated copying is addressed on Slide 15, but not being a programmer, I'm not qualified to analyze this slide. Others have already done so. With regard to the code examples later turning out not to be IBM code, the issue isn't what they turned out to be, but what SCO represented them to be at their slide show. We presented news articles of the show in our article on Saturday, "SCO Tells IBM: No, You Show *Your* Code First" that indicated that what SCO representatives said at the show was that IBM was guilty of infringement, and that was what attendees expressed their understanding was from the presentation. So we need not cover that ground again here, except to repeat this small example:
"At the SCO Forum on Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux . . . "
But that isn't the only time SCO has accused IBM of infringing their IP. They accused IBM of directly copying their System V code into Linux, according to two news articles, first one in MozillaQuest, which quoted analyst Bill Claybrook as saying SCO told him IBM was a violator:
"I don't have a list of any of the alleged violators, except
SCO did say that IBM has copied Unix System V code into Linux. I personally find that hard to believe because IBM has one of the best screening processes of any major supplier for making sure that code does not move into Linux. And SCO said no to IBM's copying the first time I asked the question and then several hours later changed their answer to the one that I just gave."
Here is the Newsfactor account:
"'I specifically asked SCO if they had any evidence that IBM directly copied System V source code into Linux. The reply was no,' Claybrook wrote in his report. 'SCO has subsequently changed that reply to, "We have that code but we have not presented it at this time."'
"When asked if the confusion about this issue is odd, given that this is the central tenet of SCO's lawsuit against IBM, Claybrook agreed. 'Whenever I asked the question, Chris Sontag, the VP there, told me no,' Claybrook said. 'But then I got an e-mail 8 to 10 hours later from Blake Stowell, director of PR, that said they had "misspoken" -- they did have evidence that IBM had directly copied code.'"
Here's what Darl McBride said on 07/03/2003 according to The Register:
"IBM has taken our valuable trade secrets and given them away to Linux."
In the press release SCO put out when it "terminated" IBM's AIX contract, McBride said IBM was continuing to "violate our source code". And SCO's attorney Mark Heise said:
"Through contributing AIX
source code to Linux and using UNIX methods to accelerate and improve Linux as a free
operating system, with the resulting destruction of UNIX, IBM has clearly demonstrated its
misuse of UNIX source code and has violated the terms of its contract with SCO."
And here McBride made a direct accusation:
"In the last 18 months, we found that IBM had donated some very high-end enterprise-computing technologies into open-source. Some of it looked like it was our intellectual property and subject to our licensing agreements with IBM. Their actions were in direct violation of our agreements with them that they would not share this information, let alone donate it into open-source. We have examples of code being lifted verbatim.
"And IBM took the same team that had been working on a Unix code project with us and moved them over to work on Linux code. If you look at the code we believe has been copied in, it's not just a line or two, it's an entire section -- and in some cases, an entire program."
When SCO wrote that they have never accused IBM publicly of the four categories of alleged misappropriation, literal copying, derivative works, obfuscation, and non-literal transfers, was that truthful? The accusation ended up in Claybrook's report, and SCO not only didn't correct it, it corrected Sontag's orginal denial that they had proof of IBM's literal copying.
And they did it privately too, according to Ian Lance Taylor's report of his visit to look at the code, which report SCO never corrected to the best of my knowledge and, if I remember correctly, I believe McBride actually referred to this account in a teleconference. During his visit, he took notes and says that this is what SCO (mostly Chris Sontag) told him:
"SCO has a list of about 20 IBM engineers who are, it claims, using AIX methods in Linux. SCO claims that some of these engineers literally are looking at AIX source code as they discuss Linux issues and making recommendations based on the AIX code.
"SCO claims this is inappropriate because everything built on top of AIX or using methods developed in AIX is really a derived work of Unix. As we talked, I realized this is a key part of SCO's argument. SCO claims that anything built on top of Unix is itself a derived work of Unix. I will discuss this further below.
"SCO said that besides IBM, Sequent has contributed code to Linux which is derived from Unix. Sequent is now a subsidiary of IBM.
"SCO also claims that some of the derivative works IBM contributed to Linux include NUMA, RCU, JFS, SMP, performance measurement and improvements, serviceability, scheduler improvements, LinuxPPC 32 and 64 bit support, logical partition support. Sontag moved on to the next slide before I typed down the rest of the list."
Finally, about the SGI matter, SCO characterizes what happened like this:
"What makes IBM's use of this trade show material particularly misleading to this Court is that the code in question identified by SCO at the trade show and elsewhere was code from a licensee other than IBM. In fact, it was widely reported after the trade show that the example of improperly contributed code was from SGI, which has since publicly acknowledged its improper contribution."
Here's what SGI actually said about the code:
"When a question was raised by the community earlier in the summer about the ate_utils.c routine, we took immediate action to address it. We quickly and carefully re-reviewed our contributions to open source, and found brief fragments of code matching System V code in three generic routines (ate_utils.c, the atoi function and systeminfo.h header file), all within the I/O infrastructure support for SGI's platform. The three code fragments had been inadvertently included and in fact were redundant from the start. We found better replacements providing the same functionality already available in the Linux kernel. All together, these three small code fragments comprised no more than 200 lines out of the more than one million lines of our overall contributions to Linux. Notably, it appears that most or all of the System V code fragments we found had previously been placed in the public domain, meaning it is very doubtful that the SCO Group has any proprietary claim to these code fragments in any case.
"As a precaution, we promptly removed the code fragments from SGIs Linux website and distributed customer patches, and released patches to the 2.4 and 2.5 kernels on June 30 and July 3 to replace these routines and make other fixes to the SGI infrastructure code that were already in progress at SGI. Our changes showed up in the 2.5 kernel within a few weeks of our submission, and the 2.4 changes were available in the production version of the 2.4 kernel as of August 25 when the 2.4.22 kernel was released. Thus, the code in question has been completely removed.
"Following this occurrence, we continued our investigation to determine whether any other code in the Linux kernel was even conceivably implicated. As a result of that exhaustive investigation, SGI has discovered a few additional code segments (similar in nature to the segments referred to above and trivial in amount) that may arguably be related to UNIX code. We are in the process of removing and replacing these segments.
"SCO's references to XFS are completely misplaced. XFS is an innovative SGI- created work. It is not a derivative work of System V in any sense, and SGI has full rights to license it to whomever we choose and to contribute it to open source. It may be that SCO is taking the position that merely because XFS is also distributed along with IRIX it is somehow subject to the System V license. But if so, this is an absurd position, with no basis either in the license or in common sense. In fact, our UNIX license clearly provides that SGI retains ownership and all rights as to all code that was not part of AT&Ts UNIX System V."
Does that match what SCO said to Judge Kimball about SGI and this code? No? One thing I think we can all agree on. Someone is being false and misleading. I will leave it up to you to decide who.
Now, about the "it's not about trade secrets", here is how SCO characterized its lawsuit against IBM in its SEC 10Q filing for the quarter ending April 30, 2003:
"On March 6, 2003, the Company filed a complaint against IBM alleging breach of contract, misappropriation of trade secrets, tortious interference, and unfair competition. The complaint centers on IBM’s activities regarding the UNIX operating system that underlies both the Company’s UNIX-based operating systems and IBM’s AIX, its UNIX-based operating system. The complaint alleges that IBM obtained information concerning the UNIX source code from the Company and inappropriately used and distributed that information in connection with its efforts to promote the Linux operating system." [emphasis added]
And IBM is misleading the court and mischaracterizing the case as being about trade secrets? They said themselves that's what it was about. And they never publicly accused IBM? SEC filings are public. Interviews with the media are public. The SCOForum slide presentation was public.
Maybe the explanation is as simple as this snip from an exclusive interview McBride gave:
"In an exclusive interview, McBride told vnunet.com that SCO was about to embark on the discovery process of its legal case, when it looks for material related to the case.
"'As we move into discovery, this will be very nice for us because now we get to go in and talk to all their people, their customers. We get to really shake things up and get in to find out what really is going on over there,' he said.
"McBride claimed that SCO has the right to audit IBM's customers. 'We have other rights under the contract we are looking at. For example, we can audit IBM customers. SCO has audit rights on its customers,' he said.
"'The reality is that we are going into discovery right now and that might be the vehicle to be able to investigate what we need there anyway.'"
Normally, when I write about the SCOSaga, I try to be entertaining, but I have to confess to being old-fashioned enough that I can't find anything funny or witty to say about this story. You just don't mislead a judge. I'm shocked, actually. Not in the Casablanca-I'm-shocked-shocked kind of way. I mean I'm really stunned by the slide comparison. I keep thinking, maybe I've misunderstood. Maybe it's written so sharply I've missed something. It's possible. I actually hope so.
I've never worked for an attorney who misled a judge. This may amaze those of you who hate lawyers, but it's true. The whole legal system is based on honor, corny as that might sound. That is one of the things I like about it. I've seen lawyers lie to their wives, sadly, to their creditors, maybe, to their clients even, but never to a judge.
I guess it's true, what Lily Tomlin said. No matter how cynical you get, it is impossible to keep up.