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SCO: It's IBM's Fault We're So Slow with Discovery
Wednesday, October 22 2003 @ 03:04 PM EDT

Here you are. Plaintiff's Substitute Motion for Enlargement of Time to Respond to Defendant IBM's Motion to Compel Discovery. In it, SCO explains to Judge Kimball why it should get more time to answer IBM's Motion to Compel. It's here as a pdf and below is a text version.

Everything they say is to buttress their claim that they need more time. They say it isn't just about lines of code; it's about methods, ways of doing things, and from their standpoint it's about IBM violating a license agreement. They need time to properly frame their response. It's not that they are stalling. It's just that IBM has phrased things so contentiously, they need to answer in detail. Oh, if only it were as simple as just turning over some documents!

The trade secrets issue is not the main thrust of their case, despite IBM trying to mischaracterize it that way, they add. And they admit they goofed when they brought up the local Utah rule, implying IBM didn't give them proper notice of what they were after. They were working from an incomplete fax, they claim, but happily they have since found IBM's addendum and "SCO apologizes to this Court for filing a motion deficient in that manner." They acknowledge they did have notice.

They tell the judge the case is so complex that just turning over the code IBM is demanding wouldn't tell the complete story and that is why they need more time. Translation: we don't want to turn over the code this exact minute. And when we do, don't expect it to be convincing.

It looks to me like they are quite worried about IBM being too effective in telling the judge why SCO shouldn't get more time to respond to IBM's Motion to Compel, and it also sounds like they are trying to spin the ball just right, because they know they have to hand over the code, and we all know how effective that will be. Not. So here they are preparing the judge, and the world, by saying that it isn't central to their case anyhow.

It all comes across as a kid telling the teacher why he didn't do his homework. How convincing do you find this, for example?:

"The drafters of the first Motion for Enlargement worked largely from faxed documents that were incomplete and did not contain the Addendum to IBM's Motion to Compel. Since the filing of the original motion, the contents of the Addendum were discovered."

Your dog ate your homework. They frame it all in a way that the judge won't be totally able to ignore, though because they are saying, unless they have more time, the judge won't understand the issues properly.

This is just my impression of the document. Here it is in full so you can form your own:

Plaintiff's Substitute Motion for Enlargement of Time to Respond to Defendant IBM's Motion to Compel Discovery

October 20, 2003

Plaintiff/Counterclaim Defendant, The SCO Group, Inc. ("SCO"), through its undersigned counsel, pursuant to Rule 6(b) of the Federal Rules of Civil Procedure and applicable Local Rules, respectfully submits this Substitute Motion for Enlargement of Time to Respond to IBM's Motion to Compel Discovery. [1]

The issue underlying IBM's Motion to Compel is not really a dispute about one party's intransigence in turning over documents in its possession. Such motions are relatively straightforward. Rather, as SCO will amplify in its response, IBM has framed the facts underlying the motion in such a tendentious way that it leaves SCO little choice but to address numerous contentions outside the proper scope of a discovery matter.

Specifically, IBM's Motion to Compel attempts to reframe the entire subject matter of SCO's dispute with IBM as the misuse of trade secrets. [2] Yet, SCO's amended complaint has six counts. The first three constitute the core of the complaint, and are for breach of the licensing agreements to which SCO is a successor in interest. The remaining counts -- including Count VI for misappropriation of trade secrets under Utah Code Ann. § 13-24-1 et seq. -- flow from this transgression and are ancillary to the breach of the agreements. Thus, contrary to IBM's mischaracterization, trade secret misappropriation in this case involves merely one count that recasts one aspect of the injuries caused by IBM's breach. These injuries would exist even in the absence of any trade secret misappropriation.

IBM's frustrations, expressed in its Motion to Compel, seem to flow from its unwillingness to admit that SCO's claims about trade secret misappropriation extend beyond merely lines of source code and computer files to methods, that is, to ways of doing things. Thus, contrary to IBM's assertion that "the only dispute here is whether SCO can meet its obligation to provide meaningful responses to the interrogatories through a general reference to the documents it has or will produce," IBM Memorandum 10, the dispute appears to be of a completely different magnitude. To properly apprise this Court of these facts and the applicable case law, SCO respectfully requests an extension of time to October 24, 2003 to respond to IBM's Motion to Compel Discovery.

No prejudice will come to IBM by the granting of this Motion; nevertheless, IBM has opposed it.

Respectfully submitted,

DATED this 20th day of October, 2003.

[1] The drafters of the first Motion for Enlargement worked largely from faxed documents that were incomplete and did not contain the Addendum to IBM's Motion to Compel. Since the filing of the original motion, the contents of the Addendum were discovered. The Addendum does provide the requisite notice as to IBM's objections to SCO's responses. SCO apologizes to this Court for filing a motion deficient in that manner. This substitute motion again addresses the need for a brief enlargement of time without reference to the procedural requirement imposed by DUCivR 37-1(b).

[2] For example, IBM has claimed that "[t]he gravamen of SCO's complaint is that IBM misappropriated or misused alleged trade secrets," IBM Memorandum 2; IBM likewise implies that trade secrets are the fundamental issue at stake when it claims that "[i]nterpreting SCO's discovery requests absent identification of the trade secrets at issue has, however, proven very difficult." IBM Memorandum 18.





  


SCO: It's IBM's Fault We're So Slow with Discovery | 237 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: skidrash on Wednesday, October 22 2003 @ 03:18 PM EDT
I'm wondering why IBM is not asking this (or the equivalent)

***

for each and every line in Linux that SCO claims is derived from SysV IBM
demands that SCO trace the lineage.

For each line, show where in SysV that line starts.

Show how IBM copied it.

Show how it went through IBM to Linux.

Prove that it is derivative by any standard legal definition of
"derivative".

Prove that it is not exempted by the "you own your work" clause.

[ Reply to This | # ]

"These injuries would exist even in the absence of any trade secret misappropriation. "
Authored by: rand on Wednesday, October 22 2003 @ 03:24 PM EDT
Huh? IBM broke their contract without using or revealing trade secrets? Can
that even happen?

---
urk...I apologize in advance for wrong keystrokes: tendonitis of the lfet hand,
the fingers drag sometimes...

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Anonymous on Wednesday, October 22 2003 @ 03:33 PM EDT
"IBM's frustrations, expressed in its Motion to Compel, seem to flow from
its unwillingness to admit that SCO's claims about trade secret
misappropriation extend beyond merely lines of source code and computer files to
methods, that is, to ways of doing things."

Methods? Ways of doing things?

OK, this falls under patents, trademarks, trade secrets, or copyrights? It's
not patents (they have none which apply) nor is it trademarks (They don't own
Unix(TM)) and they just said that it does not have much to do with trade
secrets, so then this is all _copyright_? Or is this just based on the
obtuseness of their reading of the contracts they inherited from
Novell/USL/AT&T/etc.

Methods? Ways of doing things? They must be kidding!

[ Reply to This | # ]

Five categories of Intellectual Property:
Authored by: Anonymous on Wednesday, October 22 2003 @ 03:34 PM EDT
1. Copyrights
2. Patents
3. Trademarks
4. Trade secrets
5. Stuff SCO just made up.

Or maybe I'm just ignorant of the law - is there really any rule against using
someone else's "methods" that doesn't fall into one of the first
four categories? (And exactly what methods could they be referring to that
aren't part of source code? The use of vi?)

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Anonymous on Wednesday, October 22 2003 @ 03:40 PM EDT
In this case as in the Red Hat case SCO are trying really hard to avoid showing
the "millions of lines of copied code" that they claim have been
illegaly copied from SCOs UNIX, because what will it do to the license push when
they are forced to show their hand and there is no evidence

IBM will submit a motion to dismiss their claim, SCOs stock will crash and
no-one will buy their licenses.

Then IBM will be free to pursue their claims against SCO for breach of GPL and
and patent infringements. Of course if Linux kernel code is found in the Linux
Kernel Personality product then SCO will really be fighting the GPL!!

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: rand on Wednesday, October 22 2003 @ 03:42 PM EDT
Just did a more thorough reading. Five things stand out to me: First, it seems SCOG is saying they need more time to decide which documents they want to produce, or maybe I mean the documents they want to produce. Second, they want to wait and produce everything at once. They can't send over just some of the items, that just wouldn't do. Third, they don't event want to say "Sure, we'll give you the documents." Do they lose points if they agree to provide what's requested? Is this a lawyer game I'm not aware of? Fourth, they try to both disparage and re-enforce their "trade secret" claims: "These injuries would exist even in the absence of any trade secret misappropriation." vs "SCO's claims about trade secret misappropriation extend beyond merely lines of source code and computer files to methods..." Lastly, they just plain want more time. Everything will be alright if you just give us more time, we promise. Really.

---
urk...I apologize in advance for wrong keystrokes: tendonitis of the lfet hand, the fingers drag sometimes...

[ Reply to This | # ]

Dismissal
Authored by: shadowman99 on Wednesday, October 22 2003 @ 03:46 PM EDT
PJ -

If SCO where to provide everything IBM requested, it would be the end of this
case. If SCO continues to drag their feet on discovery, at what point is is
appropriate for IBM to request a dismissal?

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Anonymous on Wednesday, October 22 2003 @ 03:53 PM EDT
SCO/Caldera is like the Black Knight in Monty Python and The Holy Grail...

SCOX: I'm invincible!
IBM: You're a looney.

I imagine when all is said and done, SCO/Caldera will be in as good a shape as
the Black Knight was after Arthur was through with him.

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Anonymous on Wednesday, October 22 2003 @ 04:05 PM EDT
I see a lot of people disrespecting SCO because they use the law differently...
I think this isn't a good attitude.

SCO is exploring new frontiers of the law around Not-Trade-Secret,
Not-Copyright, and Not-Patented form of IP. We should all be happy they are
doing this on our behalf.

And frankly, I don't see why I shouldn't have a say in what SGI does with XFS
and what IBM does with NUMA. I'm an American citizen after all. SCO is
fighting for our American rights to interfere with companies who create things
that we didn't have a part in.


[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: SteveS on Wednesday, October 22 2003 @ 04:07 PM EDT
HHmmm. They wrote this up on Oct 20. In it they request an ext. to:
SCO respectfully requests an extension of time to October 24, 2003
What would 5 days do for them that 7 months did not? I would think that they would have had their ducks in a row before filing suit. Even David took three stones with him when he confronted Goliath. (he was prepared with a response before he walked out on the battle field.)

Has the Judge ruled on this? If not, I guess they got their extension...

Steve s

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: PM on Wednesday, October 22 2003 @ 04:08 PM EDT
To quote from the [IBM] detective in the Stan Freberg skit:

"We just want the facts, ma'am"

[ Reply to This | # ]

Trade Secrets: legal article:
Authored by: Ed L. on Wednesday, October 22 2003 @ 04:18 PM EDT
I'm reposting this for those of you who missed it. Last night an anonymous
poster on the "SCO Gets A New Attorney for Red Hat Case" thread
(Wednesday, October 22 2003 @ 01:35 AM EDT) provded a link to an extremely well
researched article on this specific issue: what are "trade secrets",
what are the legal case precedents, what are IBM's defenses. The authors
ignorance of the subtleties of *nix genoelogy have already been covered -- see
last nights thread. But he's an IP lawyer whose by far major thrust is legal.
Here's the link:

http://www.vssp.com/CM/Articles/Articles1016.asp

Enjoy!

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Ed L. on Wednesday, October 22 2003 @ 04:21 PM EDT
..because what you suggest IBM demand are in fact topics for trial, not
discovery? (IANAL yada yada yada...:)

[ Reply to This | # ]

Latency question
Authored by: mflaster on Wednesday, October 22 2003 @ 04:22 PM EDT
So we're just seeing this now, this was filed on the 20th, and they are only
requesting an extension until the 24th.

I guess we see things a couple of days after it happens? I assume the judge
must make a ruling by the 21st (yesterday) if not the 20th, or else the ruling
is practically moot. (She can't rule today that SCO has to provide their brief
by 10/20...)

So is there in some sense a constant 2 day delay in us finding out what
happened? Do you get this info from a web site, or does someone trek down to
the courthouse constantly keeping track of the current status?

Mike

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Anonymous on Wednesday, October 22 2003 @ 04:24 PM EDT
It sounds like a slightly better grade of BS than previous SCO legal documents. Do you think SCO's new law firm had a hand in drawing it up?

I predict the quality of SCO's legal BS will go up several notches in the next few weeks as their new lawyers start to get some traction on the case, but it sounds like they may have rushed this out to prevent Boise's firm from screwing things up even more in the interim. Smoother, more humble and apologetic than their previous motions.

[ Reply to This | # ]

maximum impact with limited goods?
Authored by: skidrash on Wednesday, October 22 2003 @ 04:46 PM EDT
I can grok 2 reasons for all the delay

1. no case, need more time to get more financing, need more time to maybe build
a slightly better case.

2. Small number of valid complaints, each complaint to be released on a
time-release schedule to have maximal impact on the stock price. The longer the
delay between disclosures and the greater the amount of anticipation that can be
built up for the release of each little detail the greater the effect will be on
the price.

Why would a lawyer participate in / enable such a campaign, though? Wouldn't
it be a career-destroying move?


3. other suggestions ?????


[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Cal on Wednesday, October 22 2003 @ 04:49 PM EDT
So it looks like SCO drags this out as long as they can, but eventually they
have to show IBM the code in question. Are the only people who see the results
of the discovery the IBM lawyers? Or is there the potential that Linux changes
start appearing from IBM after the SCO code shows up? I know, I know, this
scenario assumes that SCO actually has a case, but all possibilities should be
examined. I imagine IBM has already run several compares between Linux and AIX,
so the likelihood is minimal. What I am really curious about is who exactly
gets to see the results of the discovery.

[ Reply to This | # ]

If you spin in front of a judge, will he be impressed?
Authored by: beast on Wednesday, October 22 2003 @ 04:49 PM EDT

From IBM's motion to compel (page 2, 2nd para, 2nd sentence):
IBM's discovery seeks, among other things, the "identif[ication], with specificity, [of] all of the alleged trade secrets and any confidential or proprietary information that plaintiff alleges ... IBM misappropriated" as well as detailed and specific information concerning those alleged trade secrets or confidential information.

From Plaintiff's Substitute Motion for Enlargement of Time to Respond to Defendant IBM's Motion to Compel Discovery (page 2, para 2, first sentence):
Specifically, IBM's Motion to Compel attempts to reframe the entire subject matter of SCO's dispute with IBM as the misuse of trade secrets.

IBM's motion, of course, does nothing of the kind. IBM is simply asking for information that TSG should already have (with specificity :^) with respect to all of their claims. TSG's lawyers are trying to spin a fragment of one sentence in IBM's motion into another delay. IANAL so if I can see this, then the judge will too.

[ Reply to This | # ]

It's Slashdot's Fault We're So Slow
Authored by: shadowman99 on Wednesday, October 22 2003 @ 05:02 PM EDT
Am I the only one who resents Slashdot linking to this site once a week and
blowing the crap out of it?

The content's of PJ's articles are copyrighted under the Creative Commons
License, so /. should reprint them under the terms and conditions set forth. In
other word, Mirror TFA Slashdot!

PJ ownz Slashdot on the SCO story. They know it. The brains are over here.

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Anonymous on Wednesday, October 22 2003 @ 05:04 PM EDT
To me, a laymen with no education in legalese, this is what SCO sounds like they're trying to say:

IBM is turning what should be a simple matter into a controversial issue by the wording of their requests and, in order to clear up all of the facts, they need more time to cover all bases. (None of the 'Controversy' comes from the constant flow of FUD from SCO, mind you)

It's either that or IBM is focusing on the IP issue when this case is really about contract violations. (Hmm. I guess the SCO lawyers read GROKLAW too)

[ Reply to This | # ]

The Chewbacca Defense??
Authored by: Anonymous on Wednesday, October 22 2003 @ 05:43 PM EDT
With this filing by SCO, sounds like they are about to enter the realm of
the Chewbacca Defense. If you don't know what that is, google it and
find out. You will laugh your ass off. SCO is getting pretty damn close to
having to employ it.

[ Reply to This | # ]

The Chewbacca Defense??
Authored by: Anonymous on Wednesday, October 22 2003 @ 05:46 PM EDT
With this filing by SCO, sounds like they are about to enter the realm of
the Chewbacca Defense. If you don't know what that is, google it and
find out. You will laugh your ass off. SCO is getting pretty damn close to
having to employ it.

[ Reply to This | # ]

Motion to extend time
Authored by: sam on Wednesday, October 22 2003 @ 05:49 PM EDT
Actually in this filing, they are not asking for an extension of time to comply
with the discovery, but until Oct. 24 simply "to respond to IBM's Motion to
Compel Discovery."

[ Reply to This | # ]

Is hand-delivery not good enough?
Authored by: mitphd on Wednesday, October 22 2003 @ 06:04 PM EDT
I note that the addendum to the Motion to Compel was hand-delivered to SCO's
Utah lawyers on Oct. 1, so wouldn't they have had enough time to consult it in
preparing the Motion to Enlarge fifteen days later?

How do judges usually respond to the 'forget what we said, we're just
incompetent' school of legal argumentation?

[ Reply to This | # ]

Time for new barristers
Authored by: gumout on Wednesday, October 22 2003 @ 06:05 PM EDT
SCO's Sustitute Motion for Enlargement has the ham-handed
law school intern signature of Boies pro hac counsel.
The Boies law firm was always just high profile FUD.


$50 million will buy some real representation.
Anybody want to venture a guess when competent
substitute counsel will enter an appearance?


---
Sir, ( a + bn )/n = x , hence God exists; reply!

[ Reply to This | # ]

Unfortunately for SCO
Authored by: p0ssum on Wednesday, October 22 2003 @ 06:34 PM EDT
The "methods" and "ways of doing things" is called the
POSIX standard.

http://standards.ieee.org/regauth/posix/index.html

I think they are going to have a hard time convincing anyone but themselves that
this is a protected way of doing things.
I think the are really digging themselves in deep on this one. Does this really
look like a court document to anyone, this looks like a parody email that
accidentally made it to the judge.


---

If you are not the lead dog, the scenery never changes.

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: nabet on Wednesday, October 22 2003 @ 06:52 PM EDT
I can't see how SCO's argument that IBM improperly revealed "ways of
doing things" is going to help them protect their "intellectual
property", as they've been crowing to the press for the last 6 months.

Let's assume for arguments sake that the contracts that IBM has with SCO don't
allow them to reveal System V "methods". The worse case is that IBM
has to pay SCO monetary damages for having done so.

These "methods", however, have no other legal protection. They
aren't patented, they can't be copyrighted, and they are no longer trade
secrets. So even if SCO wins the case, they don't get to collect royalties on
these methods being used in Linux, nor do they get to tell the Linux community
to remove the methods from Linux.

[ Reply to This | # ]

SCO contradict their own responses to interrogatories
Authored by: Anonymous on Wednesday, October 22 2003 @ 07:51 PM EDT
Thus, contrary to IBM's mischaracterization, trade secret misappropriation in this case involves merely one count that recasts one aspect of the injuries caused by IBM's breach. These injuries would exist even in the absence of any trade secret misappropriation.

IANAL but it seems the above contradicts SCO's own responses to IBM's interrogatories.

Exhibit E (SCO's response to IBM)

Doc 46 (addendum to IBM's memorandum in support of motion to compel)

Question 7: IBM asks what acts of unfair competition (and details) that SCO alleges?
Exhibit E - SCO replies - contributing to Open Source
Doc 46 - SCO supplemental response - SCO adds information is in System V source code, license agreements, and Linux 2.4 kernel

Question 8: IBM asks about what acts of inference with relations (and details) that SCO alleges?
Exhibit E - SCO replies - it will make the documents available
Doc 46 - SCO supplemental response - SCO adds information is in System V source code, license agreements, and Linux 2.4 kernel

Question 9: IBM asks about what breach of agreements (with details) that SCO alleges
Exhibit E - SCO replies - contributing to open source and continuing to use the products after license terminated.

In summary, even if it were true that IBM had engaged in acts of unfair competition, interfererence with relationships, or breach of contracts, in ways other than breach of trade secrets (which is what the quoted paragraph implies), SCO has not been able to identify a specific single case, and seems to think the info is buried somewhere inside the mountain of source code.

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Sunny Penguin on Wednesday, October 22 2003 @ 08:13 PM EDT
I wonder if SCO has decided to force the judge to throw out the SCO vs IBM case,
in hopes of leaving the Linux infringement issue open. Could it be SCO hopes to
collect from Linux extortion for years to come, even without a product to sell?

ie: SCO pays damages to IBM for Patent infringement, stops all support and sales
of Unixware, then goes for the "Troll under the Bridge" routine.

I hope IBM forces all these issues into court, because SCO will try to weasel
out of any real court challenge to the "IP".

Someone tell me that SCO cannot do this ... please.

---
Vescere bracis meis.

[ Reply to This | # ]

WOW!
Authored by: Anonymous on Wednesday, October 22 2003 @ 08:19 PM EDT
I think that's the most unconvincing argument I think I've ever heard in my
life!

[ Reply to This | # ]

  • errata: WOW! - Authored by: Anonymous on Wednesday, October 22 2003 @ 08:23 PM EDT
Breach vs misappropraition?
Authored by: sam on Wednesday, October 22 2003 @ 08:52 PM EDT
"The first three constitute the core of the complaint, and are for breach of the licensing agreements to which SCO is a successor in interest. The remaining counts -- including Count VI for misappropriation of trade secrets under Utah Code Ann. § 13-24-1 et seq. -- flow from this transgression and are ancillary to the breach of the agreements. Thus, contrary to IBM's mischaracterization, trade secret misappropriation in this case involves merely one count that recasts one aspect of the injuries caused by IBM's breach. These injuries would exist even in the absence of any trade secret misappropriation." Can someone (pj) please explain to me how IBM can be in breach without misappropriation? Don't the breach claims also flow from the misappropriation claims, therefore all claims flow from misappropriation and not just one as claimed? What exactly does the above statement really mean?

[ Reply to This | # ]

Methods and ways of doing things?
Authored by: sam on Wednesday, October 22 2003 @ 09:53 PM EDT
What happened to the thousands of lines of code including identical comments
including misspelled words (the fingerprints of original code). It was all so
clear cut way back then. Were they lying? Now it's all about abstract methods?
Am I missing something here?

[ Reply to This | # ]

Script to automatically check "holding area"
Authored by: mflaster on Wednesday, October 22 2003 @ 10:10 PM EDT
Thanks for the info Frank!

I'll write a script tomorrow to automatically check that area every 15 minutes
or so, and to let me know if anything new is there.

And BTW PJ, don't infer that I'm at all complaining!!!! I was just trying to
understand the process...

Mike

[ Reply to This | # ]

SCO and documents
Authored by: Anonymous on Wednesday, October 22 2003 @ 10:56 PM EDT
SCO forget to sign a court document

SCO forget about a document that was personally served on them, then lose most
of it in a fax accident

Maybe it's just me, but I'm beginning to think maybe they need to work on
their document control procedures.

Meanwhile in their motion to delay discovery in the Red Hat case, they say there
is no danger of discoverable documents disappearing.

[ Reply to This | # ]

SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Nick Bridge on Wednesday, October 22 2003 @ 11:16 PM EDT
No prejudice will come to IBM by the granting of this Motion; nevertheless, IBM has opposed it

This is apart from the continuing erosion of Linux confidance, presumably?

Rather, as SCO will amplify in its response, IBM has framed the facts underlying the motion in such a tendentious way that it leaves SCO little choice but to address numerous contentions outside the proper scope of a discovery matter.

Didn't SCO claim that IBM would be "pleased" with the response to the interrogatories? And, therefore, imply that they would be answering the interrogatories, not opposing them?

Didn't thay also agree that IBM was entitled to - and indeed would be recieving - documents relating to each interrogatory? In fact, they mention 50 cds, 30000 licenses.

Can SCO, at once, claim that they will provide responsive documents to the interrogatories, and that there are numerous contentions outside the proper scope of a discovery matter?

SCO doublespeak strikes again. and again!

Nick

[ Reply to This | # ]

Second Verse, Same As The First!
Authored by: Anonymous on Wednesday, October 22 2003 @ 11:57 PM EDT
This is simply SCO-speak and not even very clever SCO-speak from their amended complaint:

"7. The termination notice was based, in part, on IBM’s self-proclaimed contributions of AIX source code to Linux, and use of UNIX/AIX methods for accelerating the development of Linux in contravention of IBM’s contractual obligations to SCO."

This is simple attempted theft of the AIX intellectual property by SCO. Their termination letter to Sam Palmisano - exhibit E - cites only an agreement about the unrestricted disclosure of UNIX, and it makes no mention of AIX at all:

"a. paragraph 11 of the Side Letter contains the following language regarding the intent of the parties to prevent unrestricted dsiclosure of UNIX:

You [IBM] recognize the proprietary nature of SOFTWARE PRODUCTS and the need to protect SOFTWARE PRODUCTS from unrestricted disclosure."

Their amended complaint makes ample use of the old Soft 00015 paragraph 7.10 which says "except as provided in 7.06(b)". They never mention that paragraph 7.06(a) was also replaced entirely by a new paragraph 9 in that same Side Letter amendment. The new terms provided that "Nothing" prevented the use of any ideas, concepts know-how or techniques contained in the licensed SOFTWARE PRODUCTS in other any other products or any other services.

Playing devils advocate for a moment, even if IBM's AIX know-how or patents were considered part of the SOFTWARE PRODUCT, they had a license to use those ideas, concepts, know-how, and techniques under the original agreement from 1 Feb 1985. After 1 January 1996 they could do so with NO ADDITIONAL ROYALTIES...? ;-)

Amendment X paragraph 6 mentions that after five years the second to last sentence in paragraph 9 of the Soft-00015 amendment (The now famous AT&T Side Letter amendment) is deleted.

That means that even if IBM's AIX patents and know-how are somehow part of the licensed SOFTWARE PRODUCTS here is what the license grants: "Nothing in this agreement shall prevent licensee from developing or marketing products or sevices employing ideas, concepts, know-how or techniques related to data processing embodied in SOFTWARE PRODUCTS into any such product and in connection with any such services. If information relating to a SOFTWARE PRODUCT subject to this agreement at any time becomes available without restriction to the general public by acts not attributable to licensee or it's employees, licensees obligations under this section shall not apply to such information after such time."

All of the details of the System V internals have been published in great detail, so SCO's counsel is probably suffering a little anxiety trying to find an expert who can identify any remaining trade secret in this old code. Unlike trade secrets, patents don't loose their independent economic advantage when they are published by the USPTO. That's because patents are very propreitary in nature and are not really available for use by the public without restriction. In short, patenting AIX technology doesn't violate the terms of paragraph 11 of the Side Letter amendment in any way. It just proves who the rightful proprietor of that technology is.

One major problem for SCO is that paragraph 7.01 says: "Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any right under any patent or trademark." Notwithstanding that provision, If SCO can demonstrate a proprietary interest in any of the concepts know-how or techniquies in IBM's RCU, NUMA, JFS, or SMP technologies or any deception used in obtaining the patents or copyrights then they can control their licensing. The problem is of course that they have already given IBM an irrevocable license to use those ideas, concpepts, and technologies in any other product with NO ADDITIONAL ROYALTIES....;-)

What part of this do they not understand???

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MS and Web Services
Authored by: ZeusLegion on Thursday, October 23 2003 @ 12:18 AM EDT
Read the article here.

Why does this immediately bring Vultus to mind?

DUN-dun-DUN...

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Z

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Vaughn Article
Authored by: ZeusLegion on Thursday, October 23 2003 @ 12:23 AM EDT
Another great article by Vaughn.

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Z

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Care to be brainwashed? Only $3.50, going fast...
Authored by: ZeusLegion on Thursday, October 23 2003 @ 12:34 AM EDT

Care to enter the Twilight Zone? The Inq has an article on MS's FUD CD, selling at $3.50 a pop.

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Z

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Perhaps SCO has one legitimate claim?
Authored by: Anonymous on Thursday, October 23 2003 @ 01:20 AM EDT
I read SCO's amended complaint again -- one interesting possiblity occured to
me:

The "fifth cause of action" could possibly be interpreted to refer
to the use of the SCO libraries on Linux systems without paying the appropriate
license fee. SCO alleges that IBM encouraged people to do this.

Now, I don't know if IBM encouraged people to copy the libraries to Linux
systems and not pay the license fee, but from what I read when this whole mess
started, people certainly have done it.

Could SCO be planning to ultimately boil the lawsuit down to this?

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Another contradiction?
Authored by: Anonymous on Thursday, October 23 2003 @ 01:42 AM EDT
Is there another contradiction?

The topic of them saying their are breaches, unfair competition, etc., other
than in the source code, has already been discussed as regards their responses
to IBM's discovery requestions.

However I find it interesting, that they now say (in this motion) that IBM's
questions are too difficult, yet in a recent filing they were saying IBM would
be "very happy" with their responses in the near future.

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SCO: It's IBM's Fault We're So Slow with Discovery
Authored by: Wesley_Parish on Thursday, October 23 2003 @ 06:19 AM EDT
Ah, yes, Stowell made an interesting claim a while back, that they would be going after businesses no matter what the result of their suit with IBM was.

It puts me in mind of that fable of Aesop about the lamb and the wolf at the creek.

The wolf complained about the lamb muddying the water he was drinking,
the lamb said the wolf was drinking upstream,
the wolf alleged the lamb was disrespecting him,
the lamb said he wasn't,
the wolf said it was the lamb's father then,
and the lamb said it had nothing to do with him then,
and the wolf said, anyway, enough talking, I'm hungry,
and ate the lamb anyway.

It would be worrying, except for the fact that it's the former chihuahua of the Linux world, and now the mangy, scabby, three-legged rabid-and-syphilitic chihuahua of the Intellectual Property world, threatening a herd of elephants and Cape buffalo.

Almost too funny for words.

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finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

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TSG updated their linux faq page
Authored by: kbwojo on Thursday, October 23 2003 @ 06:23 AM EDT

I just noticed that TSG has updated their linux license faq page. I have to tell you there was one question that really blew me away, it says "What is SVR6?" and yes I typed it correctly and I say again SVR6. This is their newest and greatest contribution to the planet, no let me correct myself to the universe (just ask TSG they will tell you) a *NIX kernel for both 32-bit and 64-bit architectures. I am of course not going to be nit picky about this, but for their sake I sure hope they have went through the proper process and have been certified by "The Open Source Group" to call this a *NIX kernel.

This new news (at least its new to me) had so many thoughts running through my head it made my brain cramp. I figured I would share some of the thoughts that came to my little pea brain of a mind and maybe see what others make of this. Here is a top four list of my thoughts (I know its supposed to be a top ten list so just consider this a Readers Digest condensed version).

4. Did they do this to just simply have a product? (Considering all there other products suck and are not selling.)

3. If they think that they will win their case; are they trying to keep the code in Linux and putting such a high price on the licenses just to make it more convenient for people to buy SVR6? (I know, how could it be possible for me to even think that a company as pure as TSG would ever consider something like this?)

2. Did they already have this product ready or close to ready and planned the lawsuit and fud to clear Linux out of its way? (Yep, its a far stretch in giving TSG credit that they could actually put out enough brain power to conceive of this thought, but then again on planet Darl anything is possible.)

And the number one question:
Do they really think anyone would want to deal with them or trust them enough to buy this software after the way they have been acting? (no comment needed for this one.)

Just so everyone knows I put the sarcasm in and poke fun at TSG and associates as a form of comic relief because it helps reduce my stress when I think about the whole situation. If this offends TSG and associates, then just consider us even because I was offended by the way you have and continue to slander the people of Open Source community.

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Disclaimer: No animals were harmed in the making of this post.

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Counts I - III
Authored by: amcguinn on Thursday, October 23 2003 @ 08:31 AM EDT
Maybe I'm thick, but it looks to me like there's a fundamental problem with the logic of SCO's motion.

SCO complain that IBM's motion to compel "attempts to reframe the entire subject matter of SCO's dispute with IBM as the misuse of trade secrets".

If so, surely that's IBM's problem? Imagine down the road SCO tell the court, "IBM breached their agreements as we alleged in counts I-III, and here's the proof", and IBM say "Not fair, you never showed us that when we asked in discovery!". SCO can then say "But in discovery you only asked for stuff about trade secrets, this proof isn't to do with trade secrets, so you never asked for it."

In other words, IBM have asked for the trade secrets (as per count VI of the complaint), so SCO should produce them. If there are other documents or details that are important to counts I - III, SCO can and should hang on to them and keep quiet until IBM ask for them too.

Does that make sense legally?

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  • Counts I - III - Authored by: Anonymous on Thursday, October 23 2003 @ 03:03 PM EDT
  • Counts I - III - Authored by: Anonymous on Friday, October 24 2003 @ 02:45 AM EDT
So what's up with the Motion for Enlargement of Time?
Authored by: sam on Thursday, October 23 2003 @ 01:14 PM EDT
Do judges ever grant motions by default or by simply not issueing a ruling? SCO
simply requested an extension of time until tomorrow. Do they get it or not?

Do judges ever issue rulings to the parties and take their time in posting it to
the docket?

Presumably absent a ruling, SCO will file it's response tomorrow. If the judge
rules against the Motion for Enlargement does that mean he just won't read
their response which will be filed tomorrow? Can they even file a response
without an affirmative ruling from the judge? Would IBM's motion automatically
be granted absent a timely response from SCO?

Answers anyone?

Sam

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