Now we know what SCO's Memorandum Regarding Discovery is. It's SCO begging the court once again to give it yet more AIX code, saying that " . . .because AIX's code does not contain any historical comments, or at least the AIX code provided did not, SCO has had difficulty determining all the portions of AIX that were taken from UNIX System V."
Once again, they think it's probably the case that they could find more infringing code if they just had more AIX code, plus comments, revision control systems, interim versions of AIX and Dynix, design documents related to modifications and revisions.
SCO writes that they need IBM to hand these things over because IBM "appears to assert that to establish IBM's breach of the Agreement at issue, SCO requires specific evidence of derivation from UNIX System V lines of code through the versions of AIX and Dynix code to Linux."
That's what you told us you already had, bub, long before discovery began. It was SCO that raised that exact thought. Now that they can't find what they said they had, they are distancing themselves from the idea.
But I remember the millions of lines of code, the line-by-line direct copying they've been telling us about for more than a year. That was no assertion of IBM's.
That was then. This is now. Now SCO says that their theory of the case, the contract case, as they call it, is that any and every transfer from AIX or Dynix into Linux breaches the contract. It seems they can't find those millions of lines of code now, so they need the court to help them by forcing IBM to hand over more and more and more IBM code.
Forget about copyright infringement. SCO now disingenuously says this:
"IBM is apparently taking the position that in order for SCO to succeed on its contract claims, SCO must prove copyright infringement."
SCO acts like that is just silly. We don't need to prove that, they say, but because of IBM's theories and their discovery demands, now we find we need more code so we can do our best to respond. They need it to show that AIX and Dynix are derivative works, don't you know.
They asked Judge Wells for all this before, several times, and she declined to order it. Perhaps SCO hopes Judge Kimball will be a softer touch. "Without the listed items, SCO has spent countless hours, and sometimes fruitless effort, trying to track the improper use of UNIX System V code in Linux through AIX and Dynix," SCO says.
In other words, they can't prove their public allegations to date, which raises the following legitimate questions: 1) On what basis did they file this lawsuit? and 2) Why did they tell the world they already had this evidence? (3) On what basis did they swear to the court that they had answered all discovery requests, if now they say they can't possibly do so without more AIX and Dynix code?
They list all the things they have tried to identify, including tracking IBM's "public statements regarding its roadmap for building Linux and its technology contributions to Linux", but they need more help. If they are public statements, why can't SCO get them themselves? Perhaps because they alienated the community and have no Groklaw. Or maybe, like Samizdat's author, they are trolling, trying to use the court process to get information from IBM that others down the road can use in additional lawsuits or they can use in additional claims.
No, they say it's because they need IBM to hand them a map. They think they can find hidden infringement somewhere, but IBM won't hand them the treasure map, and they can't find the elusive X where the treasure is buried all by themselves.
It's an amazing document. They said they had proof, even without discovery, and now, in discovery, they indicate they don't have much of anything. My impression is that they've been sitting at a high-stakes poker game, with lousy cards, but pretending to hold Aces, only now it's time to show their cards.