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SCO, Given a Mile in Discovery, Would Like Another Mile
Friday, September 09 2005 @ 09:50 AM EDT

Believe it or not, folks, SCO has filed a Renewed Motion to Compel [PDF]. Here is the Memorandum in Support [PDF], with exhibits. Of course, they request oral hearings. They love dragging discovery out as long as possible.

Here we go again, then. August 1st was the deadline for IBM to turn over all the code discovery, and they say they did. You can read their letters to SCO, attached to the memorandum as Exhibits. There is a July 19 letter, in which IBM tells SCO that they have complied in full and turned over all nonpublic Linux information. They will also have the opportunity to tell their side of things more fully in a response to this motion. Until then, it isn't possible to know for sure everything that is going on. But given the history, you'll forgive me if I note two things:

  • Two years and counting, evidently SCO still can't find what it is looking for to support its claims -- hence this motion. Every time they ask for more discovery, it tells me that they still don't have a leg to stand on, so they keep having to beg for more;
  • On page 6 of their memorandum, they quote IBM as saying that given an inch, SCO will ask for a mile. The Utah court gave SCO the mile it asked for and then some, in a discovery order that was so over the top the court itself granted in part [PDF] IBM's Motion for Reconsideration, saying: "The court agrees with IBM that this burden was not made entirely clear by the parties in their memoranda before the court. Therefore, the court finds that IBM's motion is appropriate to prevent clear error or manifest injustice." Now SCO is back, and having been given a mile, they now would like another mile.

What I see them doing is interpreting each court order as meaning more must be turned over than the language itself strictly says, and then they complain that IBM doesn't interpret the order the same broad way they do. They go back and forth in letters and email and IBM still doesn't agree with them, and then they ask the court to rule that their broader interpretation be considered the correct one. Sometimes they succeed. What that means is that there will be no end to this escalation. Of course, being SCO, they also portray IBM as dragging its feet or not complying, when in fact, SCO keeps moving the line.

Here, they do exactly that again, arguing now (on page 8 of the memorandum) that it is only "reasonable" to conclude that there must be certain information in CMVC related to nonpublic contributions to Linux that IBM says doesn't exist. SCO can't get it through its head that Linux isn't developed like AIX or any other proprietary software. It just isn't, so there won't be strict equivalencies in development processes.

When SCO asked for hardware information in a breach of contract software case, that ought to be the clue to the judge that SCO is being unreasonable and just wants to get on IBM's last nerve by dragging this out to the nth degree of minuteness. Whatever the court orders, they will ask for more.

Check out footnote 2 on page 8, for example, for a good laugh:

2. In addition, IBM has reduced the amount of publicly available Linux-contribution information by removing its Linux-patch contributions from its website (http://www-124.ibm.com/linux/projects/) some time between February 24 and March 8, 2005 ("the removal date"). IBM's obligation to provide SCO with accurate and up-to-date Linux-contribution information is inherent to SCO's requests and to this Court's orders. As a result, any Linux patches that IBM submitted after the removal date constitute non-public Linux-contribution information that IBM must produce pursuant to the Court's orders. Nonetheless, IBM's completed production does not contain source code or development history for any patches IBM contributed to Linux after the removal date.

This shows the sneaky SCO style. First of all, IBM's submissions to Linux are public still, if we are talking about those that are accepted into the Linux tree. Those patches are not kept on IBM's website. They are kept on the Internet by the Linux kernel maintainers and are publicly available to SCO and the rest of the world 24/7. Nothing IBM does on its website affects that publicly available information. IBM has no obligation to put those on its website, and if they don't have them there, it doesn't magically transform them into nonpublic Linux contributions. That is just silly. SCO would like to so transform them so that IBM will have to provide more information about the public contributions than they otherwise have to. SCO knows about kernel.org; when they were a Linux company, their employees donated code to the Linux kernel, so they know precisely how contributions are publicly available there.

To me, it's like in the old cowboy movies, where the bad guy shoots at a man's feet, to force him to dance. Why does he do it? He just likes to bully people. He doesn't need the dance. He is just having some sicko fun, which is why he is the bad guy in the movie. SCO's behavior reminds me of that, just trying to make IBM dance to their discovery salvos.

I hope the judge shares my view that this footnote is more than annoying -- it's dishonest. Maybe the lawyers don't understand the tech, but SCO does. And I hope Judge Wells will finally understand that nothing she orders will ever block SCO from asking for more. When she ordered IBM to turn over the mountains of unreleased versions of AIX and Dynix, she expressed that she was doing it so that SCO couldn't come back and argue that it hadn't been given enough. That isn't what will make SCO stop, as this Motion proves. Only the judge can make them stop, and, in my view, it's time.


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