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Transcripts of the IBM and Novell Hearings
Friday, June 25 2004 @ 04:17 AM EDT

We have the transcripts of the two hearings, the SCO-IBM dispute over bifurcation of the patent claims and the dispute over whether to prolong discovery and the trial, and the SCO-Novell hearing about the motions to dismiss and to remand. I haven't had time to read the Novell one yet, but I didn't want you to have to wait.

So here are the IBM hearing transcript of the June 8 hearing and the the Novell hearing transcript of the May 11 hearing.

I have had a quick look at the IBM hearing, and several things jump out. First, IBM wiped up the floor with SCO, despite the new SCO IP lawyer, Mr. Frei, being quite a smoothie, very quick on his feet. It isn't his fault he had to argue a losing case. He did a creditable job.

IBM did a fabulous job of making sure this judge understands that SCO has virtually conceded that IBM has not taken any of UNIX System V code and put it in Linux, or as Mr. Marriott puts it:

"After two motions to compel and two orders requiring disclosure, it's become clear, in fact SCO has effectively conceded, that it has no evidence that IBM took source code from the UNIX operating system and put it into Linux. Instead, the crux of the case, it is now clear, is that IBM, according to SCO, has taken its own code out of its own separate operating system."

What the case is really about is whether SCO gets to control the entire world's derivative code that they didn't write and that they don't own the copyrights to, just because of a contract that SCO says they suddenly discover gives them that power, all with the apparent goal to make sure no large corporation with a license from AT&T ever gets to donate anything of significance to Linux.

It is a remarkable statement from IBM, and SCO didn't directly dispute it, although Hatch at one point earlier routinely mentioned that SCO's copyrighted code was put into Linux. SCO had two opportunities to dispute what IBM said but didn't, despite this being their motion, meaning they get more times to speak and rebut than IBM gets.

It's like with the motion papers. Whoever brings the motion gets two bites of the apple: first you bring a motion, the other side answers, and then you get to respond. Same at the hearing. First SCO spoke, then IBM, and then SCO got to respond. Each got an extra 30-second chance at the very end, but no matter how you look at it, SCO got opportunities to argue against what IBM said and they never did that I can see.

When I read the reports of the eyewitnesses who attended the hearing, I thought the Judge telling IBM's attorney to get to the point indicated some hostility. I don't now that I read the transcript. I see now that he was indicating that he knows what an operating system is, and he just wanted not to waste time on that and get to the relevant point. That is a good sign.

The only reason, I now believe, that SCO got a delay at all, now that I've read the transcript, is because they argued they couldn't physically handle so many depositions in such a short period of time left, plus Mr. Frei arguing that they are down to very little discovery time and only three interrogatories, and they haven't even started patent discovery. IBM of course pointed out there was nobody preventing them, and even said they, SCO, have yet to notice even one deposition, which amazes me and speaks to how much of a hurry they are in, and now I see that Judge Kimball is just being prudent. By giving them a bit more time, it precludes SCO being able to argue on appeal that they didn't have time to prepare properly and, just in case SCO is really unable, you give them the benefit of the doubt. You definitely want to cut them off at the pass on any such argument on appeal. And whether or not they are responsible for the mess they are in -- and Hatch alludes to the games they played with discovery, without giving it that name -- you really don't want this case decided on anything but the merits, not on who can physically cover all the depositions.

You will also note that we can guess what Judge Wells' order about handing over affidavits and declarations 48 hours prior to a deposition stemmed from. Of the three possibilities I laid out yesterday, I would say it looks like number one to me, tattling to mommy and being believed. SCO seems desperate here. They actually argue that IBM should offer to prove their case by bringing forth not what SCO asked for but what they meant, what they should have asked for if they had done a better job of framing the question.

Here are the snips I thought were the most significant, starting with the new lawyer on the patent bifurcation, Mr. Frei, which he lost, and then Hatch and Marriott on the scheduling order, where SCO partially got a delay but not what they were asking for. I think you'll see why SCO really wanted to bifurcate the patent counterclaims:

Frei: The case needs to proceed at its own pace. . . .

But it looks like IBM filed the patent counterclaims to have a spillover effect in the rest of case as far as the jury deliberations are concerned. They have said clearly in their brief, and I quote:

SCO claims to respect the intellectual property rights of others. It has infringed and is infringing on a number of IBM's copyrights and patents.

Just the risk of prejudice to the jury that if they think we infringed IBM's patents that somehow our claim doesn't have merit, the rest of our claim doesn't have merit, just that risk of confusion is enough to sever the case.

Hatch: In addition to that matter, there's been, you know, as always at the beginning of the case, the complexity, when we're dealing with good attorneys and aggressive attorneys, there's been a considerable amount of jockeying that has affected the schedule. And part of that resulted in Judge Wells at one point staying discovery for a period of three months. And then at the end of that three months, giving one party 45 days to respond to some of the discovery the motion compel at the beginning of that. So that took about four and a half months out of it, as well. . . .

Marriott: After two motions to compel and two orders requiring disclosure, it's become clear, in fact, SCO has effectively conceded that it has no evidence that IBM took source code from the UNIX operating system and put it into Linux. Instead, the crux of the case, it is now clear, is that IBM according to SCO has taken its own code out of its own separate operating system. And that, as they describe the contract case being the crux of the case is the case as they appear to see it.

SCO asserts essentially that it either owns or has the right to control a very significant chunk of the world's operating system source codes. All of the UNIX V family operating source code.

SCO acknowledges that IBM owns its own home-grown code, but contends it has the right to control that code. And SCO asserts the right to control, to license, the Linux operating system developed by thousands of developers over a decade. . . .

From the beginning of the suit SCO asserted that we had infringed SCO's copyrights related to the UNIX System V family operating system. And SCO doesn't own the copyrights for the IBM operating system and the copyrights with respect to Linux are owned by those thousands of individuals and corporations which have made contributions to Linux. But it asserts that IBM has infringed its copyrights. . . .

In the 15 months of this litigation, SCO has not noticed a single deposition of IBM. . . .

Even today, Your Honor, SCO has still not identified in more than a year in litigation a single line, not a single line of the UNIX System V code, this is not UNIX System V code, a single line of the code from this family operating system which we're alleged to somewhat misappropriate.

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