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A Chart To Immortalize SCO's Lack of Specificity
Thursday, April 06 2006 @ 01:15 PM EDT

Here's IBM's chart [PDF], attached as Addendum B to IBM's Reply Memorandum in Further Support of Motion to Limit SCO's Claims Relating to Allegedly Misused Material, and described by IBM as showing SCO's failure "to identify lines of System V, AIX or Dynix, and Linux material with respect to any of the 198 items" on SCO's list of "All Allegedly Misused Material Identified to Date” which they were supposed to disclose with specificity on December 22. Our thanks to grouch for doing the HTML for us, which must have been enough to make his eyes water, trying to make sure he got all the blank boxes counted out just right. Let us know if you spot any errors. [ Update: Mathfox: I cut two tables and hope this version renders properly.]

The chart is vivid Show and Tell for the judge. You don't need to be a techie to understand this chart -- it shows all the specifics that SCO has *not* produced, and for that failure, IBM asks that the court not allow SCO to introduce at trial any expert evidence or documents not produced during discovery where SCO’s failure prejudiced IBM in its ability to conduct discovery, prepare for trial and cross-examine SCO's witnesses. This is bound to come up again during the trial, I think, over and over. And right now, IBM wants the 198 items on SCO's list, the majority of it, tossed out for SCO's willfully disobeying the court's orders and discovery rules.

If you are a techie, you know how hard it is to explain computers to people who aren't naturally interested. This is a case that depends on the judges understanding a fair measure of technical details. SCO seems to be hoping they don't bother, and in fact IBM in its Memorandum accuses SCO of counting on exactly that:

Despite its generalized protestations of compliance, it is indisputable that SCO has not complied with the Court’s orders. The Final Disclosures themselves, which SCO plainly does not expect the Court will review, demonstrate the inadequacy of the 198 Items at issue.

But there are all those SCO boxes and boxes of "evidence" filed to make it look like they have complied, so IBM here is trying to show the judge that while there may be boxes and boxes of paper, there isn't anything on the paper about the bulk of the items on SCO's list that IBM can use to specifically identify what SCO is talking about. If there is infringed code, where is it?

So the chart is a visual aid to make that clear, a graphic representation of what IBM expert Professor Randall Davis states in his Declaration [PDF] is SCO's failure to provide IBM sufficient specifics to allow IBM to build its defense:

SCO does not provide a complete set of reference points (version, file and line) for any of the 198 Items. Astonishingly, SCO fails specifically to identify a single line of System V, AIX or Dynix, and Linux code for any of the 198 Items. SCO does not identify specific System V, AIX, or Dynix version(s) or file(s) with respect to more than a few of the Items.

Sometimes people talk about what they'd like as a memento when this saga is over, and some say they'd like a stock certificate to frame and hang on the wall. Me too, actually, once it's all over. But I think I'd like this chart framed for my wall even more. I find it absolutely hilarious, even though I assume, and have long assumed, that SCO is saving something up their sleeve they plan to throw on the table at the last possible minute that they just don't want to tell us yet.

Does that scare me? It used to a bit, at 2 AM sometimes, when I couldn't sleep and was staring at the ceiling, thinking about worst case scenarios. But having watched them in action for now three years (we're in our fourth as of last month, actually), I am no longer worried. First, if the only way to win at trial is by playing tricks and breaking the rules, how solid is your case? And how can I worry about what SCO may think is killer stuff, when I read IBM's Memorandum and learn that SCO has abandoned Item 294, which seems to have been their best shot, or at least the one they worked on the hardest:

To create the false impression that it has provided information that it has not provided, SCO tells the Court that it has provided “color-coded illustrations”, “line-by-line source code comparisons” and “over 45,000 pages of supporting materials”. What SCO fails to mention is that 33,000 of those pages concern Item 294, which SCO abandons in its opposition brief. Moreover, while the Final Disclosures include color coded illustrations and line-by-line source comparisons, they do not do so with regard to any of the 198 Items at issue, which are utterly lacking in the requisite particularity. In other words, SCO refers the Court to Items that are not challenged to try and defend those that are.

That's really pitiful. Whatever Item 294 was, it was apparently the heart of their list, taking up 33,000 of 45,000 pages of "supporting materials," and it's now on the cutting room floor. How could that happen? I don't know, but I'm guessing that in discussions with IBM, which IBM refers to in their timeline of events [PDF], also attached to the Reply Memorandum, IBM probably clued them in that they were relying on something that wasn't going to support their weight, and they quickly dropped it before the public could get a look at it.

More's the pity. How much would you pay to know what exactly what it was? I'd pay plenty. Hmm, there's a possible business plan for SCO. Hey, it beats direct marketing.

We did get a hint what 294 was about from IBM's "Enough is enough" Memorandum in support of its Motion to Limit SCO's Claims Relating to Allegedly Misused Material:

Item Nos. 271 and 294 of the Final Disclosures illustrate the problem. Item No. 271 claims that “AIX and Dynix/ptx patented technologies, based on UNIX System V, were improperly released for the benefit of, and use by, the Linux development community in developing Linux.” SCO does not identify a single version, file or line of Unix System V, AIX, Dynix or Linux technology that IBM is alleged to have misused. Instead, SCO merely attaches 34 patents. None of these 34 patents lists any versions, files or lines of code. There is, therefore, no way of telling what, if any, Unix System V, AIX, Dynix or Linux technology SCO contends was misused. Similarly, SCO’s Item No. 294 alleges that IBM has engaged in “[e]xtensive use of ptx programming experience (and a fortiori exposure to UNIX System V) in creating numerous Linux kernel patches”. In support of this claim, SCO attaches a computer disk containing 33,000 single-spaced pages of proposed code contributions. Nowhere does SCO identify with specificity a single version, file or line of Unix System V, AIX, Dynix or Linux code. Here again, IBM is left to guess as to SCO’s claim.

Heh heh. Proposed patches. I harken back to all that prolonged song and dance about wanting "nonpublic" Linux materials. What these guys don't understand about Linux is a lot.

Remember when SCO attorney Mark Heise said in August of 2003, when SCO first began to show code, that they had plenty of line-for-line copying just ready to show the court?

Q: Why show the code?

Heise: Why show the code? Why show the contracts? Why show anything? Because SCO is committed to educating people about their rights to ownership and allowing people, with their own eyes, to see what code is out there, because I think you've seen throughout a lot of the open-source media: "There's nothing to this litigation. There are no lines of code out there. They keep claiming there (are), but we don't believe that." We are addressing that. We're educating the public in general that, well, there is in fact infringing code, both direct line for line and obfuscated code, derivative works, non-literal -- it's there. [We] just don't want the rest of the world to believe that it's not [there], that this is some sort of smoke and mirrors. It's not.

Q: How did the decision to show the code play out? At the beginning, it seems, not a lot was being shown by the company. Weren't you afraid of tipping your legal hand or that people would criticise the code you were showing?

Heise: As a lawyer, I'm always hesitant to show anything, so I'm probably not a good person to ask. I think it really was the company feeling the need to educate the world. They had heard one too many times: "There's nothing there; this is ridiculous."

OK. So where is it? When does SCO drop the veil? Darl McBride said this back in June of 2003:

When we take a top-tier view of the amount of code showing up inside of Linux today that is either directly related to our Unix System 5 that we directly own or is related to one of our flavors of Unix that we have derivative works rights over--we don't necessarily own those flavors, but we have control rights over how that information gets disseminated--the amount is substantial. We're not talking about just lines of code; we're talking about entire programs. We're talking about hundred of thousands of lines of code....

We're talking about line-by-line code copying. That includes not just the function but the exact, word-for-word lines of code. And the developer comments are exactly, 100 percent the same. The developer comments really get to the DNA of the code. It's one thing to have something look the same, but when the developer comments are exactly the same, that tells you everything you need to know that this is in fact lifted, that it has been copied and pasted from Unix into Linux.

They sucked in Laura Didio with that comments stuff. Remember? She talked about that forevah, until that particular code was debunked publicly in August of 2003 at SCOForum. Earlier, in that same busy month of June, Darl said this:

SCO chief executive Darl McBride declared that it is "a no-brainer" that the code was in Linux.

"When you look inside in the code base and you see line-by-line copy of [SCO's Unix] System V code, not just the code itself but comments to the code, titles that were in the comments and humour elements that were in the comments, you see that everything is taken straight across," he explained.

McBride claimed that everything was exactly the same, except that the copyright notices had been stripped out. "There could not be a more straightforward case on the Linux side," he said.

Then it's time to be straightforward with the court and with IBM. Show us the code. We want to see all that line-by-line copying. Where is it on this chart? Then in October of 2003, Darl said that the illegal code he was talking about added up to millions of lines of code, not dozens. It was so much code, he said it was unthinkable to take it out: "Replacing the illegal code seems unimaginable, even if we would be the first to approve such a solution. But we're talking about millions of lines of code and not a few dozen." [French: "Mais il s'agit de millions de lignes et non de quelques dizaines."]

The funny thing is, I could go on and on, just wandering through Groklaw's Quote Database. These days, it's tons of fun.

I remember also my interview with Gregory Blepp and our translation, which he approved, of his speech given at Friedrich Schiller University Jena, 06/17/2004, where he showed graphics of allegedly misused materials, and said this:

Blepp: The characters are ... I can place the file at your disposal later on. That's no problem. [inaudible] The issue in green [referring to his presentation], if you replace this on the other hand with System V, if you compare the data, and replace it with System V, you absolutely have an obfuscation. In fact, the original makes absolutely clear that it's System V code, which slipped in via AT&T, Bell Labs, Novell and SCO [inaudible].

Then follows a bit of black-colored code. There, nothing has been done, these are simply steering sequences. Here is also black-colored code which serves to steer for sequences from Linux. And now it becomes a bit red. All sequences you see in red from now on, are line-by-line, via copy and paste from System V, thus from Unix code, line-by-line, including comments. Only if you see a deadlock comment, it is a syntax line in Linux which summarizes the elements under Linux, so it can do the same things under Linux it does under Unix. And this example are [sic] in quotation marks "only" just under 200 lines of code. From these 200 lines, 55 are affected, which were copied into Linux. From these files, this is a quite simple, but handy example, we have approximately 40 files.

In other words, the entire kernel 2.4 -- experts may correct me -- is estimated, I believe, to contain 5 million lines, something like that, give or take something. At the moment, we assume 1.5 million lines of this code to be affected. Partially by structures, partially by sequences, but partially also by line-by . . . by copying.

It'd be interesting to compare Blepp's show and tell with IBM's, would it not? Of course, it was Blepp who said that SCO had proof of millions of lines of infringed code.

So, fellows, it's time, IBM is saying. Where is it now? If you have any cards in your hand, put them on the table now. And if not now, don't try to pull them out of your sleeve and introduce them later. That is what IBM's motion is about. Of course, even if they win their motion, it won't stop SCO from suddenly "discovering" something and trying to introduce it, as they tried to do with the "discovery" that Project Monterey ran on Power. But that gambit failed, and the purpose of this motion is to try to prevent SCO from gaming the court in the future. From that standpoint, it almost doesn't matter if IBM wins or loses this skirmish. It has drawn a line in the sand and explained to the court what it believes is happening. Down the road, all they'll have to do is say to the court, "Remember what we predicted SCO would do? They're doing it. Make them stop."

*************************************

Addendum B

System V AIX Dynix Linux
Items V F L V F L V F L V F L
3                   * *  
4                     X  
5                     *  
6               X     *  
7                     X  
8                     X  
9                 **      
10                        
11                        
12                     X  
13                     X  
14                     X  
15                     *  
16                      
17                     X  
18                        
19                     *  
20                        
21                   * X  
22                     X  
23                     X  
24                        
25                     X  
26                     X  
27                     X  
28                     X  
29             X   ** X X  
30                     X  
31                   * X  
32                        
33                   * X  
34                   X X  
35                     X  
36                     X  
37                     X  
38                     X  
39                     X  
40                     X  
41                     X  
42                     X  
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44                     X  
45                     X  
46                     X X
47                     X  
48                     X  
49                     X  
50                     X  
51                     X  
52                     X  
53                 **   X  
54                     X  
55                 **   X  
56                     X  
57                     X  
58                     X  
59                     X  
60                     X  
61                     X  
62                     X  
63                     X  
64               X        
65                     X  
66                     X  
67                     X  
68                     X  
69                     X  
70                     X  
71                     X  
72                     X  
73                   * X  
74                     X  
75                   * X  
76                     X  
77                     X  
78                     X  
79                     X  
80                     X  
81                     X  
82                     X  
83                   X X  
84                     X  
85             X       X  
86               X     X  
87                     X  
88                     X  
89                     X  
90                     X  
91                        
92                        
93                     X  
94                     X  
95                     X  
96                     X  
97                     X  
98                     *  
99                     *  
100                   X X  
101                     X  
102                     X  
103                     X  
104                     X  
105                     X  
106                     X  
107                     X  
108                     X  
109                     X  
110                     X  
111                     X  
112                        
143                        
144                     X  
145                        
146                     X  
147                        
148                     X  
149                   * X  
165                        
166                     X  
167                     X X
168                   * *  
169                   * *  
170                   * X  
171                        
172                        
173                        
174 X X   X X              
175                     X  
176                     X X
177                        
178                        
179                     X  
180                     X  
181                     X  
182                        
186                     X  
187                     X  
188                     X  
189                     X  
190                     X  
191                     X  
192                     X  
193                     X  
232                   X X  
233                   X X  
234                   X X  
235                   X X  
236                   X X  
237                   X X  
238                   X X  
239                   X X  
240                   X X  
241                   X X  
242                   X X  
243                   X X  
244                   X X  
245                   X X  
246                   X X  
247                   X X  
248                     X  
249                     X  
250                   X X  
251                   X X  
252                     X  
253                     X  
254                     X  
255                     X  
256                   X X  
257                     *  
258                     X  
259                     X  
260                   X X  
261                     X  
262                     X  
263                   X X  
264                     X  
265                   X X  
266                     X  
267                     X  
268                     X  
269                     X  
270                   X X  
271                        
279                        
280                        
281                        
282                        
283                        
284                        
285                        
286                        
287                        
288                        
289                        
290                        
291                        
292                        
293                        
V = Product version identified

F = File name identified

L = Lines of code identified

* Indicates that only Linux patch information is given

** Indicates that some lines of code are displayed, but none specifically identified as misused

Indicates that only Linux Test Project (LTP) information is given


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