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First Word from the Hearing: It's IBM All the Way
Thursday, November 30 2006 @ 08:11 PM EST

I've gotten two reports from today's hearing in SCO v. IBM now, from new folks who haven't reported in the past from hearings, so I waited until there were two of them, and they both say the same thing: It went very well. Magistrate Judge Brooke Wells ruled from the bench in favor of IBM. SCO will not be allowed to, as IBM put it in its motion papers, "litigate this case by ambush."

If any of you are new, here are the motion papers that will help you know what the hearing was about today:

IBM's Motion to Confine SCO's Claims to, and Strike Allegations in Excess of, its December 22, 2005 Disclosure of Material Allegedly Misused by IBM

SCO's opposition

IBM's reply

At issue was whether SCO would be allowed to sneak in new allegations and evidence in its experts' reports that it failed to put on the table openly in its Final Disclosures, in effect, as IBM described it, reinventing its case at the eleventh hour. The answer today was no, it won't be allowed to do that. IBM had asked for this relief: "Insofar as SCO's proposed expert reports exceed the Final Disclosures, they should be stricken." More details will be arriving in a while, but assuming the early reports are accurate, we may assume that this is what the Judge has ordered.

What is most interesting to me about all this is that one of the experts was trying to introduce the Vanilla Ice theory of copyright that Darl spoke about long ago. You can see that in one footnote in SCO's opposition memo:

Dr. Cargill's opinion is based on a well-known theory of copyright law, which provides that a collective work is entitled to copyright protection based on the selection, arrangement and coordination of elements.

I don't know how "well-known" that theory is, but I would have to conclude that it will therefore not be part of this case.

Here are the Minutes from the hearing, that Frank Sorenson just sent me from Pacer, so it's official - IBM wins the motion 100%:

11/30/2006 - 888 - Minute Entry for proceedings held before Judge Brooke C. Wells: Court heard oral arguments. Court granted 695 MOTION to Strike Allegations in Excess of the Final Disclosures filed by International Business Machines Corporation. Written Order to be prepared by Mr. Marriott. Attorney for Plaintiff: Brad Hatch, Attorney for Defendant David Marriott. Court Reporter: Becky Janke. (mlp, ) (Entered: 11/30/2006)

Well. It's *Brent* Hatch, but maybe he won't mind if we don't put that up in lights.

Here's a bit of detail from our first eyewitness:

David Marriot argued for IBM. Brent Hatch argued for SCO. The arguments generally followed the briefs lasting one and a half hours, so I won't further belabor them here. Judge Wells had no questions for David. Many challenging questions for Brent who at one point gently attempted to argue with the Judge. The Judge ruled from the bench in favor of IBM re-affirming prior courts orders that only the final disclosures will be permitted and anything not in the final disclosures (including expert reports addressing issues not in the final disclosures) will not be allowed. Brent sought clarification as to what that means (structures, methods and concepts etc.) Marriott said it was clear to him but given recent experience with SCO, he's not sure it's clear to them. Judge Wells agreed that it was clear to her but that if anyone had questions, they could simply read IBM's briefs, that she was adopting all of those arguments. IBM gets to draft the final order.


More yummy details from our second eyewitness, MSS2. -- O frabjous day! Callooh! Callay! -- and there is more coming in a bit:

Marriott and Shaughnessy were there for IBM, Hatch and Tibbitts for SCO. There were others there also, whose names I did not catch. (Wow, do people ever speak rapidly at these things!) Only Marriott spoke for IBM, only Hatch spoke for SCO.

Since it was IBM's motion, Marriott got to speak first. Wells began by asking him how Kimball's ruling yesterday affected this motion.

Marriott replied that disposition of this motion was compelled by Kimball's ruling, and by four other rulings (though, as far as I caught, he never specified which four). Stuff not specified "with specificity" was thrown out. This motion was about stuff not specified at all.

He had a "booklet" (really a notebook) which he gave a copy of to Wells, and one to SCO's attorneys. Then he began going through it.

First, the facts. SCO made "a plethora of public statements". IBM asked repeatedly for specificity. Claims require line-by-line analysis. Copyright principles require line-by-line. SCO didn't say anything with specificity, so IBM moved to compel. SCO produced "no competent evidence of infringement".

Then IBM asked for PSJs, which were delayed. Then IBM asked for a deadline for final disclosures. IBM said (in their motion asking for final disclosures), "final means final" -- no expert end runs allowed. (Digression: Marriott may have picked up on Wells' fondness for sports metaphors; he used this one several times.) SCO opposed IBM's motion, saying that the court could remove stuff that was in excess of final disclosures if/when the issue arose.

SCO's final disclosures had 292 items. Out of this, there were 326 specific lines in the kernel. (There was also stuff about breach of contract, etc.) The JFS final disclosures had only 17 lines of code (which I thought was astonishing). ELF had 121 lines; memory allocation had 24.

After the final disclosure deadline, IBM undertook discovery related to the 326 lines of code and prepared their expert reports. These expert reports had line-by-line analysis of the 326 lines specified in the final disclosures.

SCO's expert reports exceeded the final disclosures, effectively claiming every line of Linux. They added greatly to the code in the previously mentioned categories; worse, they added whole new categories which were not in the final disclosures at all: the structure of code, the structure of system calls, the file system, and streams.

And now SCO says that IBM's PSJs should fail because they don't address the new material in SCO's expert reports.

Marriott said that it was like going from an arena of 22,000 fans, where one is identified, to all the fans being implicated.

He used the 25,000 man-year argument against SCO. He said, "Now they're asking IBM to do it."

He said that the court orders said no end runs around specificity, that case law says so, and that Rule 37 says so. Again, he said that the material in SCO's expert reports was not specified -- with specificity -- when it should have been.

He said the ELF stuff covered in SCO's expert reports is based on item 171 in SCO's final disclosures, which Wells threw out, and Kimball reaffirmed yesterday, and on 273 through 275, which were abandoned by SCO as not part of the claims, and on 272, which named specific lines.

In SCO's response brief, the primary argument was that "final disclosures need not be co-extensive with the expert reports". But, Marriott said, the final disclosures are the outer perimeter of the case.

He then cited 10 reasons why this needed to be the case. The first 7 were decisions by Wells and Kimball. Then he cited Rule 26(e), Rule 37(c), and basic fairness.

He stated that SCO had a "revisionist version" of procedures and that they were sandbagging in the face of multiple court orders. He said that the question was, Is SCO bound by the court orders and by SCO's own stipulation? (He had mentioned where SCO had stipulated to part of this, though I didn't get the details.) Or can SCO ignore the court orders, and add new stuff?

Update 2 - Hatch's turn.

More from our second eyewitness:

Then Hatch spoke. He said that Marriott made SCO look worse than they were -- that he mis-stated SCO's position, and that they were therefore arguing "like ships passing in the night".

He said that SCO did in fact disclose their evidence in December, but that Marriott was co-mingling SCO's disclosures and their legal theories.

He said that the issue was whether SCO's experts could give their complete opinions.

He said that Cargill was applying 10th Circuit law -- the abstraction-filtration-comparison test specified by the Gates Rubber decision.

Wells asked, what is the forcing effect of each of the previous orders on specificity? Hatch tapdanced around the question in his answer. Wells repeated the question. Hatch did more tapdancing. The only part that I recorded was that he quoted Rule 26(e) and said that SCO followed it.

He said that Cargill isn't changing what the case is about, that IBM knew that this was part of the case clear back in 2004, that they knew then that both line-by-line copying and structure and sequence were at issue. The only thing that IBM didn't have before is the Cargill report, and that wasn't due until May 2006. (He said this with some outrage in his voice.)

He said that IBM created their own undue prejudice here. They knew this structural claim was coming, and the only way it could come was in an expert report.

IBM had a chance to ask about it when they deposed Cargill, and they chose not to. They didn't ask Rochkind either, because they wanted to create this kind of argument. They knew it didn't revolve around version, file, and line number.

About the Ivy declaration, which is about JFS, Hatch said that SCO claimed that all of JFS was misused, and that IBM said that they needed files and lines. So SCO gave some lines, but that was just to give some examples, because they had said that it was about all of JFS. Then IBM claimed that Ivy, who referred to all of JFS, was referring to more than SCO had claimed in their final disclosures. Ivy is just giving more examples.

Hatch said that Davis did a machine-based comparison, which didn't answer Ivy at all, because that's not how Ivy did it.

The Rochkind declaration, which is about testing: What IBM is disputing is not what SCO claims is misused, it's just some support material. The documentation files aren't claimed misused material either; they're just used to show that the misused material really was misused.

SCO disclosed system calls in December. SCO did disclose additional material in this area in Cargill, but as part of the "structural copyright" problem. IBM understood this -- in his expert report, Kernighan addressed this as an overall system, not on a system-call-by-system-call basis.

Wells asked why, if the issues are unclear in an order, why is it not brought back to the court?

Hatch said that he didn't believe that it was unclear, but there was an attempt to make them unclear now.

Wells asked, "But isn't there a difference between experts explaining the case, and them expanding the case? If you were required specificity, how can you expand it now?"

Hatch said that the experts put meat on the claims.

Wells said that experts shouldn't expand on what SCO couldn't get before. Hatch said, "We didn't do that."

He said that IBM knew about the structural claim in 2004.

Wells asked a question that I didn't understand.

Hatch talked about prejudice, that there was a four-part test, though he didn't list the parts. He said it would have to disrupt the trial. About the structural claim, he said, "They have been aware of it forever." He said that the 10th Circuit is clear -- if you have time to cure it, it's OK.

He said that having time to go through the code is a red herring. Cargill didn't take 21 man-years because he didn't do it that way.

He said that 10th Circuit law doesn't require version, file, and line.

He cited a ruling in Jacobsen v. somebody, that it must interfere with the trial. He said that the only thing IBM cited was an unpublished 7th Circuit decision, but that the published 7th Circuit standard is the same as the 10th Circuit. He cited Peach vs. US Trust (2005), which (if I understood him correctly) cites Woodworker.

He then said that he mis-spoke earlier, that JFS is a contract claim, that the copyright claims are the structural stuff.

Overall, I found Hatch much harder to follow than Marriott. He fumbled around a lot more. However, he still sounded persuasive - until Marriott replied.

Update 3 - Marriott responds.

More from our second eyewitness:

In his reply, Marriott first said that the court had ample authority to rule on this issue. The burden of proof on IBM was no more than it faced on the 292 items. And SCO in an earlier motion said that the court had a "complete arsenal" to deal with this exact situation.

Marriott said that Hatch claimed that IBM said, at the time of the arguments about the schedule for final disclosure, that the experts could come later. But IBM's filings at the time said the opposite of what Hatch was trying to make them say. Marriott quoted from them at length.

He said, "Expert discovery is not the time to identify". SCO should have disclosed the particulars; "structure" doesn't tell IBM any particulars. IBM needed to know what SCO's theory of the case was.

Request 13 of IBM's interrogatories said, "Describe in detail how IBM misused the material."

Marriott said that the court had asked why SCO's position doesn't gut the court orders, and the court got "a non-answer".

He said that Hatch talked about "non-literal infringement" as if no specificity is required. The court has rejected this view. SCO's argument is that the more vague the claim, the less detail they have to give. In reality, the more vague or abstract the claim, the more detail that is required. SCO's claims are like the use of a word to tell us that the whole English language is claimed.

He said that Hatch says that IBM should do their expert reports like Cargill, but Cargill is vague, filled with generality. IBM wants the particulars.

He said that saying "structure" is like saying "contract infringement". (Meaning that it doesn't tell you any particulars.)

He said that the prejudice was self-evident -- worse than in yesterday's ruling. SCO says that IBM has time because the trial date slipped. It's not enough time for a proper defense.

About JFS, he said that the final disclosures said "for example" and now SCO tries to say that it means any part of JFS.

SCO says that it is not alleging certain things in the expert reports as issues. IBM asked SCO to stipulate that, and SCO refused.

[I thought that this was a brilliant reply to SCO's position -- that specificity was needed on all the claims, not just the file-and-line ones. And, in fact, this is what has been frustrating us (and presumably IBM) from the beginning -- the vague, unspecific nature of SCO's claims. So IBM's position was that the December deadline was for specificity in everything, that it was put-up-or-shut-up time. And SCO didn't put up much of anything.]

Update - Hatch again. MSS2 sends in now his final report, and didn't he do a simply fabulous job? A round of applause for our reporters of the day, please.

Hatch said that JFS was claimed from the beginning (all of it), and then IBM asked for specificity.

He said that Gates Rubber gave a copyright test that doesn't require line-by-line, so IBM's claim of prejudice is wrong.

Wells asked, "Didn't Kimball already decide that there was prejudice to IBM?" Hatch said that the decision wasn't on this topic.

He said that IBM was trying to exclude Cargill, that IBM is saying that it is "rife with generality", when IBM really should be attacking it with another expert.

He said that Marriott said that "the prejudice to IBM was self-evident", which is the same as saying that Marriott didn't want to talk about it. If there is any real prejudice to IBM, they should handle it by re-deposing Cargill.

Wells cited the July 1, 2005 order, the June 28, 2006 order, and Kimball's ruling of yesterday, and said that SCO may not claim material that was not specified in the Final Disclosures.

Hatch then asked what exactly was regarded as being specified in the final disclosures. [Boy, they just don't learn, do they? Either SCO wants to pretend that things still aren't clear, or they are going to try to push this line yet again.]

Wells basically said, what was in the Final Disclosures, and asked if that was plain.

Marriott said that it was plain as day, but "my friends at SCO" might/would/did take the position that everything was disclosed. [I think he meant that SCO took the position that they had disclosed all of JFS, all of Linux...]

Wells said that Marriott would draft the order, that she adopted IBM's reasoning, and told SCO that they could take it up with Judge Kimball.

[I got the chance to shake Mr. Shaughnessy's hand on the way out and to thank him for IBM's stand on an issue that we cared deeply about.]

And so, there you have it. The "take it up with Judge Kimball" remark is referring to his order of yesterday, where he said that if either party wished to appeal Judge Wells' order on this hearing, he'd look at it de novo. So, will they or won't they?

: )

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