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Appendix A: SCO's "it was accurate at the time" defense.
Tuesday, August 29 2006 @ 09:00 AM EDT

Here's SCO's Appendix A [PDF], attached to their Objections to Judge Brooke Wells' Order, as text. I call it their "it was accurate at the time" defense, trying to justify and explain all the public statements to the press that don't seem to match the evidence before the court.

SCO says the statements were "true when made" but were they? Let's take a stroll together through the Groklaw Quote Database, shall we, and compare it to SCO's Appendix A. Here's the Chris Sontag page, and here's what I might whimsically call The Collected Wisdom of Darl McBride, a collection of his public statements in the press back in 2003 particularly. First, let's start with the MIT team SCO said they'd hired. Oh, they didn't say that? Not according to Appendix A. So, let's take a look.

Here's the article by Robert McMillan, in which he mentions the MIT guys:

SCO was able to uncover the alleged violations by hiring three teams of experts, including a group from the MIT math department, to analyze the Linux and Unix source code for similarities. "All three found several instances where our Unix source code had been found in Linux," said a SCO spokesman.

Notice that the article puts it as a direct quotation by a SCO spokesman. That usually means Blake Stowell. Later, some MIT folks looked into the claim and debunked it:

The company has so far declined to disclose most of these examples publicly. But it has said that three teams of experts have confirmed its assertions -- including one team of mathematicians from MIT.

“They said they hired three separate independent teams of experts to analyze their code, including one from MIT, and that the findings appear to corroborate the fact that the code had been taken from Unix and put into Linux,” said Laura DiDio, a senior analyst at The Yankee Group in Boston.

“It was kind of weird, because they told me they had hired a team at MIT,” said Robert McMillan, a correspondent for the IDG News Service. “And then they kind of backpedaled.”

SCO Senior Vice President “Chris Sontag told me that [they] had a group of mathemeticians ‘who were at MIT’ working on this,” McMillan wrote in an e-mail after checking his notes. “In subsequent interviews SCO said that these guys had been at MIT and were no longer there.”

Paul Hatch, a SCO spokesman, wrote in a statement to The Tech, “To clarify, the individuals reviewing the code had been involved with MIT labs in the past, but are not currently at MIT. Unfortunately, due to contractual obligations, we cannot specifically name the individuals.”

Later, SCO’s director of corporate communications, Blake Stowell, confirmed that “at least one of the groups was a link to MIT” but did not respond to a request to make the experts available for interview.

Informal inquiries with the mathematics department did not find anyone who said they knew of a colleague working to verify SCO’s assertions.

Notice that it was said not only to Robert McMillan, but it was also said to Laura DiDio, and Blake Stowell even tried to salvage what was said. And what does SCO cooly say in Appendix A?

4. A SCO spokesman went on to state that SCO had hired three teams of experts, including a group from MIT's math department to analyze Linux and UNIX code for similarities. "All three found several instances where our Unix source code had been found in Linux." (Order at 5, 6.)

This attributes to SCO a statement it did not make. SCO did not hire a group from MIT's math department to perform analysis, but did hire a group previously affiliated with MIT to perform such a function. SCO also hired other individuals to perform this function independently.

Which is true? I'll let you be the judge. If those guys at MIT hadn't checked and debunked the story, would it have been clarified? To help you, note what Chris Sontag had to say back in August of 2003, as quoted by eWeek at http://www.eweek.com/article2/0,4149,1224274,00.asp although the link no longer works. It did at the time. [And here's a signature that quotes it -- Update: a reader, Roger, found it]:

"We have rocket scientists who have applied their spectral recognition and pattern analysis to software, which has yielded amazing results. We have found needles in the Mount Everest-sized haystack," Sontag said.

Ahem. And where might that amazing evidence be? For that matter, where are the amazing rocket scientists? I know, but I enjoy watching SCO twist in the wind, trying not to let those guys be deposed or cross examined, I guess. Or how about this Sontag promise of specificity?

"Their assertions are incorrect. The source code is absolutely owned by SCO," said Chris Sontag, general manager of the company's software licensing arm. "In fact, SCO knows exactly which version of System V the code came from."

No kidding? Then do tell the court right away, will you? We're all dying to know. He said it again on August 21, 2003, at the time quoted in the Globe and Mail at http://www.globetechnology.com/servlet/story/RTGAM.20030821.gtlinuxaug21/ BNPrint/einsider/?mainhub=GT although that link no longer works but now viewable here:

"In fact, SCO knows exactly which version of Unix System V the code came from and which licensee was responsible for illegally contributing it to Linux," said Chris Sontag.

Wow. Pre discovery, they had all that?! So, where are the coordinates now? You know, line, file, etc.? There was so much infringing code, he said: "The amount of Unix code in Linux could be greater than 25%." More than a million lines of code he told the media. What they showed at SCOForum in 2003 was just "the tip of the iceberg" and SCO was "saving our very best examples for the courtroom, where we will ultimately have to try our case." So true. That's the right place to show it. So, where are they now, those millions of lines of code? Did they evaporate, like snow in the warm sun? Darl McBride used the same phrase:

But the unlicensed use of its Unix shared libraries was just the "tip of the iceberg as there are so much IP we're dealing with here, ranging from copyright, trade secrets, patents, source code and licensing issues.

SCO has no Unix patents that I've ever heard of, at least none in the litigations. So was he just talking out of his cowboy hat? Why, he told us he couldn't wait to show his evidence to the court:

"We feel very good about the evidence that is going to show up in court. We will be happy to show the evidence we have at the appropriate time in a court setting," McBride said. "The Linux community would have me publish it now, (so they can have it) laundered by the time we can get to a court hearing. That's not the way we're going to go."

That was then. This is now. It is time to show this code. He told us, "it's not an insignificant amount of code." He talked about the three teams they hired allegedly, in a Face to Face interview partially transcribed by Groklaw:

And during the period of time shortly after filing the lawsuit until recently when they came back and responded, we had a 60 day period there where we turned 3 different teams of code programmers loose on the codebases of AIX, Unix and Linux. And they came back with - independently - we had the three teams - one was a set of high-end mathematcians, rocket scientist, modeling type guys. Another team was based on standard programmer types. A third team were really spiffy on agent technology and how all of this technology was built in the first place. So the three teams came back independently and validated that there wasn't just a little bit of code showing up inside of Linux from our Unix intellectual property base. There was actually a mountain of code showing up in there.

They had found a mountain of code. It was blatant copying of hundreds of thousands of lines. There was so much infringing code, he said, if you took it out, you couldn't use Linux in the enterprise any more:

"This isn't a matter of changing a line or two of code. If all of the infringing code were removed today, Linux would have little multiprocessor code left and would be totally ineffective for enterprise use," McBride said.

It was unthinkable to try to pull out so much code:

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. On top of that, the pieces that were taken are precisely what makes Linux a viable solution for enterprise deployment, like SMP and NUMA. We therefore invite enterprise users to properly license Linux by purchasing our run-time-only Linux license or downgrading to a version of Linux prior to 2.4, which will probably be enough for some companies.

That's a translation of this:

Remplacer le code incriminé ne paraît pas envisageable, même si nous serions les premiers à approuver une telle solution. Mais il s'agit de millions de lignes et non de quelques dizaines. De plus, les parties empruntées sont précisément celles qui ont rendu Linux apte au déploiement en entreprise, comme SMP ou Numa. Nous invitons donc les entreprises à se mettre dans la légalité en achetant notre licence pour l'utilisation du code binaire de Linux, ou en revenant à une version de Linux antérieure à 2.4, qui suffira probablement à certaines sociétés.

As for Chris Sontag, some gems I noticed include this statement from May of 2003, about UnitedLinux:

SuSE's argument that its UnitedLinux contract protects it from SCO legal action is baseless, he added. "That simply is not the case at all," Sontag said. "Public statements to that effect (are) the farthest thing from the truth."

And he added this to IT Week:

I have reviewed the agreements we have with SuSE. I would not characterise them in any form whatsoever as providing SuSE with any rights to our Unix intellectual property. They are dead wrong on that issue.

Funny, Judge Kimball's recent Order in the Novell case seemed to say the opposite. He quotes from the agreements:

The UnitedLinux members agreed that each member would have a broad license to use the technology included in the UnitedLinux Software, including any related intellectual property rights of the other members. The contracts provided that "All intellectual property rights related to the UnitedLinux Software (with the exception of certain "Pre-existing Technology" and "Enhancements" thereto) shall be assigned by the members to a new company, UnitedLinux, LLC. In addition, the contracts provided that "[e]ach member shall have a broad, royalty-free license to all intellectual property rights in the UnitedLinux Software, entitling each member to "use, copy, modify, distribute, market, advertise, sell, offer for sale, sublicense . . . in any manner the Software, including the rights to make derivative works of the Software, to provide access to the Source Code and/or Object Code to any third party, to incorporate the Software into other products or bundle the Software with other products for its own business purposes and any other unlimited right of exploitation." The contracts further state that the UnitedLinux Software shall be subject to any existing "open source" licenses.

Well, Sontag is not a lawyer, but still, the wording seems clear to me, and I'm not one either. Without any doubt Mr. Sontag made many sweeping statements about the amount of code SCO had allegedly found in Linux. "It's all over the place," he said:

Sontag specifically claimed that there is "significant copyrighted and trade secret code within Linux".

When asked for examples of infringement, Sontag said, "It's all over the place" but did not characterize any one subsystem as containing more infringing code than others. Infringement is present not only in distributions and vendor kernels, but in the official kernel available from kernel.org. Code has been "munged around solely for the purpose of hiding the authorship or origin of the code", he said.

"I can't at this point lay out all the evidence", Sontag said [....]

[...] "We specifically excluded the BSD-derived code", Sontag said. "There is post-BSD UnixWare source code origined [sic] with SCO, and that is of issue."

It's all over the place except for the one place it needs to be, in front of the judge. And he was quite specific as to SCO's ability to pinpoint where the methods and concepts showed up in the codebase, although SCO now tells the court it can't possibly do that:

After sifting through e-mails from the Linux developers' mailing list, Sontag says SCO has examples of programmers from AT&T licensees offering to write UNIX code into Linux, and can identify where those UNIX fragments turned up in the codebase.

Really? Then... why didn't SCO do that? In fact, didn't they tell the court they didn't know where the methods and concepts could be found in the code and that it wasn't necessary to point to code when it came to methods and concepts?

And finally, as long as we are collecting quotations, how do you like this one from Bill Gates?

Microsoft Chairman and Chief Software Architect Bill Gates said the intellectual property battle between SCO and IBM is hurting the business of Linux.

Gates, speaking to financial analysts at the company's Redmond, Wash., headquarters Thursday, said it's unclear if Microsoft is benefiting from customer worries about the liability of deploying Linux when the lawsuit between SCO and IBM hasn't been resolved.

However, Gates said the controversy has exposed a fundamental weakness of Linux--that the General Public License (GPL) makes it difficult for companies to engage in the cross-licensing deals that have become standard in the software industry.

That's a big Achilles heel, Gates said.

Gates predicted that the intellectual property and GPL issues will eventually create enough inertia to hurt Linux's acceptance in commercial settings.

That is from July 25, 2003 from an article entitled, "Gates Says SCO's Case Against IBM Will Harm Linux’s Commercial Prospects Contends Microsoft IP likely violated by open source code" so it was said before the world found out that Microsoft was involved in the BayStar funding. Was that perchance the intended point of this lawsuit? Perhaps McBride said it best, after SCO tried to tack on fees to running Linux:

"Because Linux is replicating Unix ... Linux plus fee equals Unix," he said. "It sort of begs the question of why don't you just run Unix?"

With that introduction, here is Appendix A:

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

APPENDIX A

Citing an IBM memorandum filed earlier in the case, which references various publications, the Magistrate Judge's Order cites several statements attributed to SCO. The statements were not addressed in the briefing regarding the IBM Motions underlying the Order. Nevertheless, the Magistrate Judge's Order simply assumes that the statements were made as quoted and, perhaps more importantly, that the statements relate to the disclosures challenged in IBM's underlying motion.

In this Appendix, SCO addresses the statements cited by the Magistrate Judge and demonstrates why they provide no support for the sanctions imposed, and indeed, are quite irrelevant to the issues before the court. Those statements by SCO employees, moreover, were true in all material respects when made, were based on work that had been performed by technical consultants and experts. The statements about copied lines of source code relate to many Items identified in SCO's December Submission that are not the subject of IBM's Motion -- there are over 90 items in that category -- and do not correlate to the methods and concepts at issue in the Magistrate Judge's Order. They are therefore irrelevant, but because they are being used as a source upon which to draw inferences against SCO, they are addressed here in detail:

1. SCO identified four categories of alleged misappropriation: (1) literal copying ("[l]ine-for-line code copies from System V into Linux kernels 2.4+"); (2) derivative works which arose from "[m]odifications of System V created by vendors contributed to Linux kernels 2.4+ in violation of contracts"; (3) obfuscation ("[c]opying, pasting, removing legal notices, reorganizing the order of the programming structures"); and (4) non-literal transfers ("[m]ethods, structures and sequences from System V contributed to Linux kernels 2.4+"). Finally, to the presentation SCO also gave "one example of many" of line by line copying between System V Code and Linux kernel code. (Order at 4.)

This statement, made by SCO executives at the SCO Forum in Las Vegas in August 2003, was true, was based on technical consultant work, and has been substantiated by SCO in discovery. SCO did not and say that it had source code coordinates for any disclosed method or concept. The methods and concept items were identified by SCO's experts later. SCO has identified misappropriations in the December Submission that fit into the categories identified above. For example:

a. Misappropriation in the form of line-for-line code copied from System V into the Linux kernel (Item Nos. 183-185, 205-231) as well as line-for-line code copied from System V into the Linux tool chain used to compile and operate Linux (Item No. 272) and line-for-line code copied from System V into STREAMS modules used by, among others, enterprise Linux customers to operate "Carrier Grade Linux" (Item Nos. 150-164);

b. Misappropriation in the form of line-for-line copied code from derived works of System V created by IBM (or otherwise protected under the contracts) and contributed to Linux in violations of the IBM and Sequent Software Agreements (Item Nos. 1, 2, 113-142):

c. Misappropriation in the form of changed or revised code (Item Nos. 183, 184, 205-231);

d. Misappropriation in the form of non-literal transfers of methods, structures and sequences from System V contributed to Linux (Items Nos. 38, 112, 149, 165-177, 180); and

e. "One example of many" of line by line copying (Item No. 185).

2. In April 2003, SCO's Senior Vice President Chris Sontag stated that, "We are using objective third parties to do comparisons of our UNIX System V source code and Red Hat (Linux) as an example. We are coming across many instances where our proprietary software has simply been copied and pasted or changed in order to hide the origin of our System V code in Red Hat. This is the kind of thing that we will need to address with many Linux Distribution companies at some point." (Order at 5).

This is an accurate statement of comparison work performed by SCO in advance of public statements. There are, in fact, instances in which SCO's proprietary System V code was simply copied and pasted into the Linux kernel or associated libraries that were then included in a Red Hat distribution. (Item Nos. 183, 184, 272.)

3. In June 2003 SCO took "its case against the Linux operating system and IBM on the road." SCO "began showing to U.S. analysts code that, it claims, proves that the source code to the Linux operating system contains sections of code lifted directly from SCO's Unix code base." Senior Vice President Chris Sontag stated that, "The one specific example that I'm showing right now is [Unix] code, line by line copied into Linux." [Order at 5.)

This is an accurate record of a statement made by Mr. Sontag. The specific example shown by Mr. Sontag is found in Item No. 185.

4. A SCO spokesman went on to state that SCO had hired three teams of experts, including a group from MIT's math department to analyze Linux and UNIX code for similarities. "All three found several instances where our Unix source code had been found in Linux." (Order at 5, 6.)

This attributes to SCO a statement it did not make. SCO did not hire a group from MIT's math department to perform analysis, but did hire a group previously affiliated with MIT to perform such a function. SCO also hired other individuals to perform this function independently.

REDACTED

REDACTED

6. In December 2003, SCO sent a letter to Linux users identifying a portion of their copyrighted code which had been incorporated into Linux without authorization. SCO stated that files in Linux version 2.4.21 which incorporated copyrighted binary interface code must be removed. And that "SCO's review is ongoing and will involve additional disclosures of code misappropriation." (Order at 6.)

This is a correct record of a statement made by SCO. The code identified in this letter was part of the October 2005 Submission (Item Nos. 201-203) and a material part of the code identified in this letter was part of the December 2005 Submission (Item Nos. 183, 184).

7. Also in December, Darl McBride and Chris Sontag were asked during an interview, "Have you identified exactly what code is at issue here?" In response Mr. Sontag stated, "We've identified a lot of different things. Early on when we filed against IBM, people wanted us to show the code. Even though we're fighting a legal case and [a courtroom] is where it's appropriately vetted, we decided to take at least one example and show it." Order at 6, 7.)

This statement is accurate and irrelevant to the instant discovery dispute. Mr. Sontag does not claim to have identified all of the code at issue, let alone code related to method and concept disclosures that -- at the time of the statement -- were not yet identified by SCO's experts.

8. Sontag continues, "A substantial amount was a cut-and-paste job, a few lines changed, but a substantial body of code. You don't have to be a programmer at all to see copying has occurred. It wasn't just 10 lines of code, that example was over 80 to 100 lines of code." (Order at 7.)

This is an accurate record of a statement made by Mr. Sontag. This statement relates to Item No. 185, which demonstrates verbatim copying of 80 to 100 lines of code.


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