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| SCO's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery |
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Friday, October 24 2003 @ 07:11 PM EDT
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Here is SCO's Plaintiff's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery. The PDF is here.
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Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address, phone]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address, phone]
Attorneys for Plaintiff The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT OF UTAH
DISTRICT OF UTAH
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THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,
Defendant.
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PLAINTIFF'S MEMORANDUM OF LAW
IN OPPOSITION TO IBM'S MOTION
TO COMPEL DISCOVERY
Case No. 03-CV-0294
Hon: Dale A. Kimball
Magistrate Judge Brooke C. Wells
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The SCO Group ("SCO") submits this memorandum of law in opposition to International Business Machines Corporation's ("IBM") Motion to Compel Discovery.
INTRODUCTION
It has been said that things have both an ostensible and a real reason. Ostensibly, IBM filed its Motion to Compel to force SCO to answer interrogatories and produce documents because it had failed to do so. The reality, however, is that SCO not only timely responded to IBM's discovery requests, it then engaged in weeks of lengthy conversation, correspondence, and emails to resolve and clarify discovery issues and ultimately agreed to supplement its responses. But supplemental responses were not all that IBM was seeking. If that were the case, IBM would have waited until today, when supplemental responses were promised and were in fact served. No, what IBM really desired was a forum within which it could construct its stilted and inaccurate mischaracterization of SCO's claims, behind which it could hide its own failure and refusal to provide meaningful discovery responses. As detailed below, IBM's motion is without merit and should be denied.
At its core, IBM's Motion to Compel Discovery asks for answers to interrogatories that fit its own mischaracterized theories of the case, rather than answers that relate to the actual allegations made by SCO in the Complaint. IBM's baseless arguments begin as an effort to smear SCO and end with a newly created justification of why IBM has failed to provide any meaningful discovery responses itself. While IBM's improper litigation tactics are discussed in detail below, the Motion to Compel can be denied on the simple basis that SCO has actually provided supplemental answers, pursuant to earlier agreement, and this motion is therefore moot.
THE LAWSUIT
Contrary to IBM's efforts to recast SCO's Amended Complaint as one limited to trade secret violations, the Amended Complaint contains six counts - the first three counts are for IBM's numerous breaches of licensing agreements. The remaining counts, including Count VI for misappropriation of trade secrets, flow from this transgression and are ancillary to the breach of the license agreements. Thus, notwithstanding IBM's mischaracterization, trade secret misappropriation is not the gravaman of the Complaint (IBM Mem., p. 2), but it is 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.
In its Amended Complaint, SCO alleged that IBM and Sequent (now part of IBM and hereinafter collectively referred to as IBM) were licensees of UNIX System V source code ("UNIX"). As part of this license grant, IBM was given certain rights and also agreed to certain restrictions upon its use of UNIX. IBM agreed, for example, that UNIX code and methods would be solely for its own internal business purposes (§ 2.01), (1) that UNIX code and methods would not be used for others or by others (§ 2.05), and that IBM would maintain the code and methods related thereto in confidence (§ 7.06). Similarly, IBM further agreed it would not sell or otherwise dispose of UNIX in whole or in part (§ 7.10). Significantly, IBM also agreed that any modifications or derivative works of UNIX prepared by IBM, would be treated by IBM "as part of the original Software Product." (§ 2.01). Thus, all of the foregoing restrictions on UNIX also apply equally to any modifications or derivative works created by IBM. (2)
Pursuant to these restrictions, IBM agreed that AIX, IBM's "own version of UNIX" (IBM Mem., p. 2 n.1), and Dynix, Sequent's version of UNIX, would be used solely for internal business purposes, would be maintained in confidence, and would not be disposed of in whole or in part. IBM, contrary to these clear and unambiguous limitations on its use of UNIX, including modifications and derivatives thereof, has publicly touted its contributions of AIX and Dynix into Linux, the free, "open source" operating system that IBM has heavily supported, both financially and technologically. (3) Specifically, IBM improperly contributed these protected UNIX materials into the Linux 2.4 and 2.5 kernels (in lay terms, the "brain" of the operating system) - a decidedly public disposition of these protected materials. This action is a clear breach of IBM's obligations under the agreements with SCO governing the use of UNIX, and derivatives such as AIX and Dynix.
IBM'S MOTION
IBM's Motion begins with a seven page "preliminary" statement that makes unfounded attacks on SCO and its counsel. This gratuitous commentary was inserted by IBM in the apparent hope that innuendo and sniping may add weight to its motion. IBM begins by claiming "SCO has obfuscated its claims to foster fear, uncertainty and doubt about its rights and the rights of others." (IBM Mem., p. 3). In fact, SCO has done nothing other than assert its contractual and legal rights. (4) IBM then incorrectly attributes as a purported quote from SCO's counsel that SCO "doesn't want IBM to know what they [SCO's substantive claims] are." Even a casual review of the article IBM relies upon (IBM Mem., Exh. C) reveals that no such statement was made by SCO's counsel. Indeed, the one paragraph "article" is nothing more than a gripe by a reporter who failed to obtain information from counsel about the case. More importantly, SCO's counsel, through communication with IBM's counsel and through its Amended Complaint, has made perfectly clear to IBM what its substantive claims are. That IBM chooses to ignore the statements
and the actual claims detailed in the Amended Complaint does not give rise to a motion to compel. (5)
The "Preliminary Statement" repeats over and over that SCO purportedly has failed to answer the series of questions arising from the "trade secrets and any confidential or proprietary information that Plaintiff alleges or contends IBM misappropriated or misused." SCO, however, previously provided appropriate answers. Nonetheless, SCO has filed supplemental answers to interrogatories, served today consistent with its agreement to do so, which specify the source code files that contain the information IBM and Sequent agreed to maintain as confidential and proprietary. Much of this information was developed by IBM and Sequent and, pursuant to their license agreements with SCO, both IBM and Sequent agreed it would be held as confidential. As a result, some of the information IBM requested will be known only to IBM, so the specifics of who at IBM was involved with improperly contributing this code to the public, how they did so, and the like will not be known until SCO gets the information from IBM, the party who contributed the protected materials in violation of its contractual obligations.
Such a situation does not create grounds to grant a motion to compel. As the court explained in a case cited by IBM, O'Connor v. Boeing N. Am., Inc. 185 F.R.D. 272, 281 (C.D. Cal. 1999), a toxic tort case, "the clear inference from the response is that [respondents] do not yet
know exactly how they were exposed to contaminants, but exposure occurred. When additional information is known to [respondents], they must supplement their response under Rule 26(e)." Likewise, SCO is presently attempting to ascertain, through the interrogatories and requests for production it has propounded to IBM, the associated background information and details that it needs to prepare its case as well as to fulfill IBM's request. Thus, to the extent certain portions of the answers are not currently available, they can be supplemented upon receiving the information
from IBM, the party that improperly made the contributions to Linux in violation of its obligations to SCO and the party that presumably can identify who at IBM made the unlawful contributions to Linux, to whom they were made, when they were made, and other related details. To date, however, IBM has failed to provide this information, despite its agreement and obligation to do so.
As noted earlier, because SCO long ago indicated it would supplement its answers to interrogatories, IBM's motion should be denied as premature. Having provided the supplemental answers, IBM's motion is also rendered moot. Under these circumstances, normally there would be no further reason to address any of the remaining statements in IBM's memorandum. Here, however, IBM has advanced two arguments that so egregiously distort the facts and circumstances of this case that SCO is forced to respond.
1. IBM's Characterization of the Presentation at the SCO Trade Show is False and Misleading.
Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show. IBM incorrectly asserts that during that presentation, SCO identified "four categories of alleged 'misappropriation' by IBM: (1) literal copying; (2) derivative works; (3) obfuscation; and (4) non-literal transfers." (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM. Slide 8, which is the only one to contain the terms "literal copying," "derivative works," "obfuscation," and "non-literal transfers" does not mention IBM, or indeed anyone else. In fact, Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action. What makes IBM's use of this trade show material particularly misleading to this Court is that the code in question identified by SCO at the trade show and elsewhere was code from a licensee other than IBM. In fact, it was widely reported after the trade show that the example of improperly contributed code was from SGI, which has since publicly acknowledged its improper contribution. It is inconceivable that IBM is unaware that the code identified by SCO in its presentation was from SGI, not IBM. In any event, as code contributed by another licensee, it should be obvious to IBM that, despite its demands for this code, the identity of such code is not responsive to any of IBM's interrogatories
2. IBM's Claim it Will Not Respond to Discovery Until it Receives Supplemental Answers is Belated and Improper.
Most problematic is IBM's claim that it cannot respond to discovery until SCO supplements its answers to interrogatories. SCO's discovery requests directed to IBM have been outstanding for four months. Raised for the first time in this motion, IBM's manufactured excuse for failing to respond is absurd and contrary to its previous representations that it will provide the discovery requested.
Now, after mischaracterizing the breadth of SCO's complaint as detailed above, IBM suddenly claims "[w]hether a given document ultimately will be responsive to SCO's extensive requests turns on which trade secrets SCO identifies as being at issue in this case." (IBM Mem., p 18). No, it does not. The example used by IBM to support its recently created excuse for not providing any additional documents since October 2, 2003, makes clear that whatever may be a trade secret does not limit IBM's obligations to provide full and fair discovery responses. Specifically, IBM points to SCO's Document Request number 11 and claims it needs guidance on the trade secret issue before it can respond. Request 11 is as follows: "All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods and modifications to Open Source Development Lab, Linus Torvalds, Red Hat or any other entity." There is nothing on the issue of trade secrets that this Court needs to "clarify" for IBM to produce this information. As noted earlier, IBM contractually agreed to maintain certain information as confidential and proprietary. That includes all of UNIX System V, UnixWare, IBM's version of UNIX, called AIX, and Sequent's version of UNIX, called Dynix. IBM cannot unilaterally alter SCO's claims by pretending the clear and unambiguous allegations in the Complaint and contractual obligations detailed therein do not exist. IBM must provide the requested documents and cannot avoid or alter its production obligation through the filing of a Motion to Compel that improperly seeks to alter the claims as pleaded by SCO.
CONCLUSION
Based on the fact that SCO voluntarily supplemented its answers and that IBM's Motion to Compel is premature and wholly inaccurate, SCO respectfully requests that this Court deny IBM's Motion to Compel.
Respectfully submitted,
DATED this 23rd day of October, 2003.
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER, L.L.P.
Stephen N. Zack
Mark J. Heise
By: [signature]
Counsel for Plaintiff/Counterclaim defendant
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc. hereby certifies that a true and correct copy of PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO IBM'S MOTION TO COMPEL DISCOVERY was served on Defendant International Business Machines Corporation on this 23rd day of October, 2003, by hand delivery and U.S. Mail, first class, postage prepaid, on their counsel of record as indicated below:
Copies by Hand Delivery:
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Copies by U.S. Mail to
Evan R. Chesler, Esq.
David R. Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
NOTES
(1) All references are to the Software Agreement executed by IBM and attached to the Amended Complaint as Exhibit A.
(2) These restrictions are fundamental to any license for software. In the absence of such restrictions and the ability to enforce them, a licensee can simply modify or rewrite code and then give it away thereby eliminating any value of the original source code. Thus, there can be little doubt that the gravaman of SCO's Complaint arises out of these critical restrictions on the use of the software and modifications and derivative works thereof.
(3) The Amended Complaint details IBM's repeated boasting of how it has contributed the protected materials to Linux. See, e.g., Amended Complaint, ¶¶ 91, 93-97.
(4) It is particularly rich irony to witness IBM complain about the sowing of "fear, uncertainty, and doubt," given that the term originated from IBM's tactics. "Defined by Gene Amdahl after he left IBM to found his own company: 'FUD is the fear, uncertainty, and doubt that IBM sales people instill in the minds of potential customers who might be considering Amdahl products.' The idea, of course, was to persuade buyers to go with safe IBM gear rather than with competitors' equipment. This implicit coercion was traditionally accomplished by promising that Good Things would happen to people who stuck with IBM, but Dark Shadows loomed over the future of competitors' equipment or software." From The Jargon File available at http://catb.org/~esr/jargon/html/F/FUD.html.
(5) Indeed, in the conference calls with counsel that lasted hours, IBM's counsel was told repeatedly about the basis of the claims. In fact, when directed to the pertinent allegations of the Complaint detailing IBM's improper contributions to Linux, the response was that IBM's counsel lacked the technical proficiency to determine if the answers were sufficient. The answers are sufficient. The Amended Complaint and the prior answers detail the critical contributions by IBM to Linux, including NUMA (Non-Uniform Memory Access) and RCU (Read Copy Update). These technologies improperly contributed to Linux by IBM allowed Linux to make the quantum leap into high-end corporate enterprise use; a place it did not and could not occupy before IBM's unlawful contributions.
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| Authored by: Anonymous on Friday, October 24 2003 @ 07:31 PM EDT |
It's amazing to me how pleading your side in a case comes more from the lack of
evidence than actual evidence.[ Reply to This | # ]
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- Gravaman? - Authored by: mojotoad on Friday, October 24 2003 @ 07:38 PM EDT
- Gravaman? - Authored by: Newsome on Friday, October 24 2003 @ 07:55 PM EDT
- Gravaman? - Authored by: J.F. on Friday, October 24 2003 @ 11:13 PM EDT
- Gravaman? - Authored by: p0ssum on Friday, October 24 2003 @ 11:35 PM EDT
- Gravaman? - Authored by: Anonymous on Saturday, October 25 2003 @ 07:02 AM EDT
- Grim Reaper - Authored by: Anonymous on Friday, October 24 2003 @ 07:55 PM EDT
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| Authored by: Anonymous on Friday, October 24 2003 @ 07:39 PM EDT |
"There are no American Tanks in Bagdad!"
Is it just me, or does it seem as if SCO hasn't so much as completely U-turned
on their arguments but try and place the blame for this fiasco on IBM?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 24 2003 @ 07:43 PM EDT |
I'm not sure if I get this correctly. Is SCO
claiming that any modifications that IBM made
to UNIX (i.e. all of AIX essentially) is licensed
to IBM under SCO terms?
Isn't this far fetched? Say IBM adds some code from
one of their unrelated to UNIX internal projects (for which it is clearly the
unique owner) to AIX. Then SCO can tell IBM not to share that with anyone else?
Doesn't
seem quite right to me...
[ Reply to This | # ]
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| Authored by: Christian on Friday, October 24 2003 @ 07:45 PM EDT |
| It seems that one of SCO's strategies is to make general allegations with the
hope that they will get evidence from IBM in discovery that will let them make
specific claims. It is strange to think that SCO doesn't have to substantiate a
single claim in order to force IBM to supply reams of documents.
Between the
snide tone and the twisting of facts, this is a shockingly unprofessional
document. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 24 2003 @ 07:48 PM EDT |
| So...this is 2247 words to say "Nuh uh!" Gotta love lawyers.
Seriously,
they haven't addressed a single point raised by IBM in its motion, they just
deny everything. "We gave IBM all the material" when the whole point of IBM's
motion, as I understand it, IANAL, is the material given didn't answer the
questions asked.
And how can SCO use NUMA and JFS and so on as the basis
of trade secret litigation when those technologies aren't SCO's trade secrets?
Also, doesn't the footnote regarding trade secrets, the one whereby the trade
secrets alone enabled Linux to make quantum leaps like Scott Bakula, doesn't
that footnote contradict the sentiment from the first paragraph that trade
secrets aren't all that important to the case?
I can't read lawyer-speak,
PJ, help!
[ Reply to This | # ]
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- Er? - Authored by: garrett on Friday, October 24 2003 @ 07:53 PM EDT
- Er? - Authored by: PJ on Friday, October 24 2003 @ 08:02 PM EDT
- Er? - Authored by: Anonymous on Friday, October 24 2003 @ 08:48 PM EDT
- Prohibited by their contract - Authored by: Anonymous on Friday, October 24 2003 @ 09:27 PM EDT
- Er? - Authored by: J.F. on Friday, October 24 2003 @ 09:55 PM EDT
- Er? - Authored by: Maserati on Friday, October 24 2003 @ 10:39 PM EDT
- Er? - Authored by: Anonymous on Friday, October 24 2003 @ 09:07 PM EDT
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| Authored by: Anonymous on Friday, October 24 2003 @ 07:51 PM EDT |
"...the example of improperly contributed code was from SGI, which has
since publicly ackmowledged its improper contribution."
Has SGI really said as much? I thought anything SGI said
about that code had been couched in "may haves" etc.[ Reply to This | # ]
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| Authored by: overshoot on Friday, October 24 2003 @ 07:51 PM EDT |
| Now, after mischaracterizing the breadth of SCO's complaint as detailed
above, IBM suddenly claims "[w]hether a give document ultimately will be
responsive to SCO's extensive requests turns on which trade secrets SCO
identifies as being at issue in this case." (IBM Mem., p 18). No, it does not.
The example used by IBM to support its recently created excuse for not providing
any additional documents since October 2, 2003, makes clear that whatever may be
a trade secret does not limit IBM's obligations to provide full and fair
discovery responses. Specifically, IBM points to SCO's Document Request number
11 and claims it needs guidance on the trade secret issue before it can repond.
Request 11 is as follows: "All contributions made without confidentiality
restrictions by IBM or anyone under its control including, but not limited to,
source code, binary code, derivative works, methods and modificantions to Open
Source Development Lab, Linus Torvalds, Red Hat or any other entity." "All
contributions made without confidentiality restrictions by IBM ... to Open
Source Development Lab ... or any other entity." Good Heavens! Isn't there at
least some requirement that a discovery request be germane? IBM has been
contributing code, scientific research, literature, and technology in general to
the world for over a hundred years. A literal response to this turkey would
fill moving vans with CDs and ancient paper while being totally useless to TSG.
One is inclined to suspect that its purpose is purely to incur expense for IBM. [ Reply to This | # ]
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| Authored by: tazer on Friday, October 24 2003 @ 07:52 PM EDT |
"From The Jargon File available at
http://catb.org/~esr/jargon/html/F/FUD.html"
Hmm, catb.org...
Hmm, ~esr...
SCO's not...
Surely, they're not...
Naaahhhh...[ Reply to This | # ]
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| Authored by: ra on Friday, October 24 2003 @ 07:53 PM EDT |
I can't believe my eyes.
Quote
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http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt
Debevoise, District Judge.
...
I. STATEMENT OF FACTS
...
The parties' most recent 32V agreement is the Educational Software License
Agreement, or E-SOFT-00089, executed in 1985 ("the 00089
agreement"). (Forte Aff., Ex. F.) The 00089 agreement permits the Regents
to create derivatives of UNIX and, to the extent that the derivatives are free
of proprietary information, to distribute them without restriction.
**********
The contracts in that case were nearly identical to IBM's.
Good luck SCO, unless I'm drastically misreading this, you're going to need
it.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 24 2003 @ 07:55 PM EDT |
Unix is a registered trademark and SCO doesn't own it. They own Unixware and
Openserver. Is there any way to force them to stop using such blatantly
deceptive language? They're trying to win the argument by forcing their terms
on it, and it's dangerous to let them get away with that, IMHOP. [ Reply to This | # ]
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- UNIX? - Authored by: Anonymous on Friday, October 24 2003 @ 08:01 PM EDT
- UNIX? - Authored by: p0ssum on Saturday, October 25 2003 @ 08:22 AM EDT
- UNIX? - Authored by: Ed Freesmeyer on Friday, October 24 2003 @ 10:04 PM EDT
- UNIX? - Authored by: archanoid on Friday, October 24 2003 @ 10:20 PM EDT
- UNIX? - Authored by: Anonymous on Saturday, October 25 2003 @ 04:46 AM EDT
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| Authored by: Anonymous on Friday, October 24 2003 @ 07:59 PM EDT |
| Has anyone noticed that, despite forming a "division" called SCOsource, SCO
failed to register the domain name
scosource.com [ Reply to This | # ]
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- SCOsource - Authored by: Alex on Friday, October 24 2003 @ 08:40 PM EDT
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| Authored by: Anonymous on Friday, October 24 2003 @ 08:00 PM EDT |
Six points
1. I think the reason IBM said the gravaman of the complaint is trade secrets,
as that this is implied from SCO's responses to interogs 7 to 9. It is not
implied in the original IBM questions (which are general questions) Specifically
SCO did not identify breaches of contracts, unfair competition, etc. that would
flow from something else.
2. They talk about "modifications and derivatives thereof".
Presumably they should already know what is a "modification and
derivative" of their code (in Linux) by any sensible definition of
"modification" or "derivative"
3. More than one of their slides in the slide show does name IBM. I am thinking
about the one from the Linux kernel mailing list for example.
4. In their slide show they have precise numbers of lines/files. Assuming their
is some factual basis to these numbers, they must have identified X number of
files from SGI, Y from IBM, etc. Why can't IBM know this?
5. Doesn't it contradict their earlier motion saying IBM would be "very
happy" with their responses in the near future.
6. I may have read too quickly, but they don't seem to be citing a lot of
cases... and it's about toxic waste. Apart from that, we're in jargon file
land.
[ Reply to This | # ]
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| Authored by: overshoot on Friday, October 24 2003 @ 08:02 PM EDT |
| Some of the legally literate help me out here, but I was under the naive
impression that a memorandum of law was supposed to cite the law. This "MoL"
seems to make a great number of unsupported factual claims, but precious little
in the way of legal reasoning or references. Am I mistaken or are TSG just
flailing? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 24 2003 @ 08:08 PM EDT |
| New lawyers at work? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 24 2003 @ 08:09 PM EDT |
Firstly: Amendment X. This is a killer for SCO because if you "own"
intellectual property, how can anyone else claim control over it? If they have
control over it, you don't have full ownership. Let's face it,
"ownership" of intellectual property boils down to control of it.
Secondly, that most of their claims stem from IBM continuing to distribute AIX
and use the SYSV source code after SCO "revoked" IBM's irrevokable
license. And on what basis did they terminate the license: by claims of trade
secret violations!
The Internal/External usage SCO talks about is merely semantics relating to the
claimed trade secrets. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 24 2003 @ 08:23 PM EDT |
| I have only been following this case in part, but it appears to me that, if you
put appropriate legal blinders on (i.e. ones that only look at what SCO has
alleged in court!), this response of theirs might be more consistent than their
earlier ones, by essentially ignoring the notion that source code had anything
to do with this since it was not directly alleged in court by SCO, for
example.
I still hope the Judge sees through this and they Rot in Someplace
Unpleasant afterward.
Erich Boleyn
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| Authored by: Anonymous on Friday, October 24 2003 @ 08:23 PM EDT |
How could confidential methods be distinguished from trade secrets? If they
cannot be distinguished in law, then their entire argument about the basis for
the case being contract and not trade secret fails.
It seems to me that the UNIX methods involved are either not originating in UNIX
(NUMA), published in textbooks (kernel scheduling), intuitively obvious, or
otherwise not previously secret, hence there should be no trade secret damages.
I am just not sure how SCO can claim that UNIX methods that their contract
claims are confidential are not a type of trade secret and that therefore this
part of their case boils down to a trade secrets case.
The copywrite infringement is another story, yet there has been no evidence
provided so far of copywrite infringement by IBM. This of course should come
out in discovery.[ Reply to This | # ]
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| Authored by: mflaster on Friday, October 24 2003 @ 08:28 PM EDT |
Tell me if I'm being stupid.
IBM said, "Your honor, make them respond to our discovery requests
already."
SCO says, "Well, first of all, IBM breached their contract. That's why
we're suing them. Also, their motion to compel was very mean. They don't
even understand why we're suing them. And they won't give us *our* discovery!
[So file your own freakin' motion!!!] And we already *told* them we would
respond eventually..."
Wouldn't valid responses be something like "IBM has no right to ask for
this, it's irrelevant, that's why we don't want to provide it",
"It's implausible to get this info in this amount of time because of this
fact, we need this amount of time"...
Also, do I get the impression that likely what SCO delivered to IBM today was
"code files that contain the information IBM and Sequent agreed to
maintain as confidential and proprietary." Wouldn't that be all of Unix?
And then they say something like 'it's up to IBM to figure out who
contributed the stolen stuff to Linux', I suspect that means then never
specifying what exactly they claim was stolen!!!
I really hope it's not just me, that this is starting to tick off the judge...
Mike
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| Authored by: Dark on Friday, October 24 2003 @ 08:36 PM EDT |
I think they asked for a delay in filing this response because they wanted to
be able to say "we just provided the supplemental responses" instead of "we're
going to provide the supplemental responses". This also allows them to not
describe exactly what they're promising, they can just point at the documents
and pretend that they're sufficient.
They're being coy about exactly
when this promise to supply these responses on October 23rd was made. They
imply that it was promised before IBM filed its Motion to Compel, and later on
they just say it was made "long ago". By contrast, IBM's Memorandum in
Opposition from October 17th says that the promise was made "Two days before
[SCO] was required to respond to IBM's motion", i.e. long after the motin was
filed. IBM also claims "In the negotiations leading up to IBM's motion [...]
SCO consistently declined to even commit to provide IBM with all the information
it has requested".
I'm inclined to believe IBM here, because IBM is
being specific while SCO is being vague. I think SCO is trying to cover up that
its supplemental responses are not "all the information IBM requested".
IBM is sure to object, of course, but that means further delay.
Oh,
while I'm here I'd also like to gripe about the kernel being explained as the
"brain" of an operating system. If you're going to make animal analogies, the
kernel is much more like the body. Userspace sets policy, interprets input and
issues commands, and the kernel carries them out. But a much better analogy is
that it's the "kernel" of the operating system. That's why it's called that.
Duh. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, October 24 2003 @ 08:38 PM EDT |
| As a result, some of the information IBM requested will be known only to IBM,
so the specifics of who at IBM was involved with improperly contributing this
code to the public, how they did so, and the like will not be known until SCO
gets the information from IBM, the party who contributed the protected materials
in violation of its contractual obligations.
That statement is utterly
untrue. The history of any code added to the Linux kernel is available as part
of the revision control system. [ Reply to This | # ]
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| Authored by: the_spide on Friday, October 24 2003 @ 08:39 PM EDT |
SCO is presently attempting to ascertain, through the
interrogatories and requests for production it has propounded to IBM, the
associated background information and details that it needs to prepare its case
as well as to fulfill IBM's request. Thus, to the extent certain portions of the
answers are not currently available, they can be supplemented upon receiving the
information from IBM, the party that improperly made the contributions to Linux
in violation of its obligations to SCO and the party that presumably can
identify who at IBM made the unlawful contributions to Linux, to whom they were
made, when they were made, and other related details. To date, however, IBM
has failed to provide this information, despite its agreement and obligation to
do so.
How can IBM be expected to reveal who, to whom, and
when contributions were made if IBM doesn't know what exactly what the
contributions that SCO belive to be unlawful are ?
Should IBM be forced
to provide who, to whom, and when for all their contributions ?
Would
doing so be admitting fault because SCO is only asking for the unlawful
contributions' details ?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 24 2003 @ 08:41 PM EDT |
>[2] These restrictions are fundamental to any license for
>software. In the absence of such restrictions and the
>ability to enforce them, a licensee can simply modify or
>rewrite code and then give it away thereby eliminating
>any value of the original source code. Thus, there can be
>little doubt that the gravaman of SCO's Complaint arises
>out of these critical restrictions on the use of the
>software and modifications and derivative works thereof.
Not true. Copyright prohibits this even if there is no
license. Are these really lawers? [ Reply to This | # ]
|
| |
| Authored by: Kelledin on Friday, October 24 2003 @ 08:42 PM EDT |
| The "Preliminary Statement" repeats over and over
that
| SCO purportedly has failed to answer the series of
| questions
arising from the "trade secrets and any
| confidential or proprietary
information that
Plaintiff
| alleges or contends IBM
misappropriated or misused." SCO,
| however, previously provided
appropriate answers.
SCO should be able to point out
exact file names and line
numbers in the Linux kernel source tree. After
all, it
supposedly discovered for itself that the code in question
was improperly contributed by IBM. From that it ought to
be able to look
back and see who contributed it and where
in the Linux source it got
added. After all, everything
contributed to Linux is contributed in the
public eye, with
a name and e-mail address firmly attached to it.
| Nonetheless, SCO has filed supplemental answers to
|
interrogatories, served today consistent with its
| agreement to do
so, which specify the source code files
| that contain the
information IBM and Sequent agreed to
| maintain as confidential
and proprietary.
Throwing the whole source tree at
IBM and saying, "locate
it yourself" doesn't work.
| Much of this information was developed by IBM and Sequent
|
and, pursuant to their license agreements with SCO, both
| IBM
and Sequent agreed it would be held as confidential.
| As a
result, some of the information IBM requested will
| be known
only to IBM, so the specifics of who at IBM was
| involved with
improperly contributing this code to the
| public, how they did
so, and the like will not be known
| until SCO gets the
information from IBM, the party who
| contributed the protected
materials in violation of its
| contractual obligations.
SCO's complaining that IBM did not keep the info
confidential, yet SCO claims they can't find it because IBM
kept it
confidential? Hmmm...
SCO is basically telling IBM,
"Give us some evidence we can
use to sue you." It's SCO's job to discover all
this,
without IBM's help, before they file suit.
[ Reply to This | # ]
|
| |
| Authored by: ChrisP on Friday, October 24 2003 @ 08:44 PM EDT |
What a load of garbage. As in the SCOForum presentation, SCOG are conveniently
ignoring the sub-licensing agreement and other amendments giving IBM ownership
of its own code. I expect the judge already knows where they are, and footnote 1
is a reminder. :-)
[5] ... The Amended Complaint and the prior answers detail the critical
contributions by IBM to Linux, including NUMA (Non-Uniform Memory Access) and
RCU (Read Copy Update). These technologies improperly contributed to Linux by
IBM allowed Linux to make the quantum leap into high-end corporate enterprise
use; a place it did not and could not occupy before IBM's unlawful
contributions.
More FUD and bad logic. Because the NUMA and RCU ideas had been published,
kernel developers may well have written their own patent-free and copyright-free
versions had IBM/Sequent not contributed some of their code.
Can SCOGs lawyers really get away with making such a poor argument to a judge
(as opposed to a jury)? The war of words seems to be hotting up.
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 24 2003 @ 09:01 PM EDT |
When is the court going to make some substantial ruling or other? Will we have
to wait another seven months?[ Reply to This | # ]
|
| |
| Authored by: Alex on Friday, October 24 2003 @ 09:05 PM EDT |
I understood it. SCO's lawyers suck.
Alex
---
Destroying SCO one bozon at a time[ Reply to This | # ]
|
| |
| Authored by: nabet on Friday, October 24 2003 @ 09:08 PM EDT |
This has to be the least impressive legal filing from SCO to date. While we
don't know precisely what documents have been exchanged so far during the
discovery process, SCO clearly has no intention of providing any direct evidence
of any breach of contract. Instead, they seem to think that it's enough to
claim that their contract with IBM extends to "ways of doing
things", which allows them to essentially claim all of AIX (and by
extension, Linux) as their own.
SCO is not after any remedies from IBM for having copied System V code into
Linux, they're after a complete redefinition of what a derivative work is in
the software realm.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 24 2003 @ 09:20 PM EDT |
It's obvious now that they have nothing to back up their claims that IBM
violated the the requirements of the license agreement(tedious digging
required). Which is the crux of all this nonsense.
If your pot was empty, would you not gamble ?
I expect The Court is oblivious to the time scales expressed in the evolution of
Linux, the global publication of various UNIX internals and standards, etc.
Someone who will be read needs to amicus over this pronto.
Some see smoke, some see Mirrors...
[ Reply to This | # ]
|
| |
| Authored by: fava on Friday, October 24 2003 @ 09:32 PM EDT |
Every argument I have seen SCO make seems to completely
ignore the contents of the side letter between IBM and
AT&T. Could it be that SCO's legal strategy is to somehow
attempt to invalidate the side letter and therefore have
the case be based on the original contract? What arguments
could SCO make to cause that to happen? Or is SCO simply
ignoring any contrary evidence in order to keep the FUD
machine going. That seems like a risky proposition
considering that they are dealing with a judge rather than
a compliant journalist. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 24 2003 @ 09:39 PM EDT |
It seems to me that with this document SCO has given away the secret to where
and how this all began and have shown the Jokers they've been bluffing with all
along.
Monterey was the spark. Miffed about how IBM burned them on that (since they'd
bet their future on it apparently), it appears someone (Yarro?) gave the order
to burn them back and Darl and Sontag were brought in. They began looking at
their contracts with IBM, searching for something to burn them with. I don't
have the agreements in front of me but I bet SCO went over IBM's Unix contract
and found a line or two which gave them the impression they owned anything IBM
had placed in AIX (a derivative of Unix) such as NUMA, RCU and JFS (?) and
thought they could threaten IBM with it. Likely they didn't see Amendment X
during their search or other parts of the contracts that contradict their
initial thinking. I'm sure by now they know better. I think they're scared of
the GPL because, when validated by a court of law, all their claims could go up
in smoke. This is why they keep saying "Well, we didn't know they had
contributed stuff we think is derivative (because it was used for AIX at some
point) and you can't be held liable for someone else putting stuff you control
under the GPL." Of course, the fact they used the GPL for near 8 years and
knowingly distro'd Linux (which contains NUMA, RCU etc.) isn't going to help
them.
I don't think they have a case at all and if I can find the part of the
contracts that states IBM owns anything it puts into AIX and can freely do as it
will with that code, I think it will prove SCO is sunk.
"Contracts are what you use against parties you have relationships
with." - Darl McBride
Anyway, please let me know if everyone is seeing this how I am or if I'm a day
late and a dollar short.
I'm off on a scavenger hunt amidst the IBM/SCO Unix contracts...
[ Reply to This | # ]
|
| |
| Authored by: mikeca on Friday, October 24 2003 @ 09:58 PM EDT |
SCO is continuing to interpret the contract as saying that any code IBM added to
the original AT&T code to create AIX must be treated with the same
restrictions that apply to the AT&T code. SCO, therefore, says it was a
breach of the license for IBM to donate NUMA, RCU, JFS and SMP code that it had
previously added to AIX, even if this code contains no AT&T or SCO UNIX code
or trade secrets.
I think the original contract is unclear about this point, but the Feb 1985 and
August 1985 letters of understanding and amendments to the contract make it
clear that this is not the correct interpretation.
IBM is operating on the assumption that as long as the code they donated to
Linux contains no SCO Unix code or trade secrets, that they did not breach the
contract, so they keep asking SCO to show them the SCO Unix code or trade
secrets they are suppose to have transferred to Linux. SCO is saying, based on
its almost certain misinterpretation of the contract, that they don’t need to
show any code or trade secrets that IBM transferred to Linux. IBM could have
breached the contract without transferring any SCO Unix code or trade secrets.
[ Reply to This | # ]
|
| |
| Authored by: Glenn on Friday, October 24 2003 @ 10:03 PM EDT |
It seems to me that SCO has asked IBM to tell SCO what code it has
improperly donated to Linux and the people from within IBM that donated the
code.
IBM's answer is we haven't donated any code improperly to Linux. We have
asked repeatedly that you SCO show us the specific code that you claim has been
improperly donated.
SCO, well it's not all about the code anyway. And you haven't told us what
code you donated improperly and who did it in the first place.
Is it just me? Or does anyone else think that SCO is completely whacked?
Glenn[ Reply to This | # ]
|
| |
| Authored by: skidrash on Friday, October 24 2003 @ 10:03 PM EDT |
that IBM cited in their motion to compel.
[ Reply to This | # ]
|
| |
| Authored by: archanoid on Friday, October 24 2003 @ 10:13 PM EDT |
As part of this license grant, IBM was given certain rights and
also agreed to certain restrictions upon its use of UNIX.
Hey,
that's just how the GPL works! Imagine that!
Much of this
information was developed by IBM and Sequent and, pursuant to their license
agreements with SCO, both IBM and Sequent agreed it would be held as
confidential.
So there is no direct copying of SVR5 code.
This is and always has been about IBM, Sequent, SGI, et. al., contributing code
for XFS, JFS, NUMA, RCU, SMP, etc. Now, my understanding is that most of the
Linux implementations (like ALL of IBM's direct contributions) were clean room
re-implementations not utilizing the AIX version of the code. So really, what
SCO is saying is, IT'S THE METHODS.
As has been said before,
SCO/Caldera's whole argument boils down to some twisted idea of what
"derivative" means and some twisted idea that a METHOD patented by
another
company can and should be contractually usurped by them.
After reading this MoL though, I'm reminded of beginning chess players
who try to beat a better player by mirroring their moves. Every move the
opponent makes, I just turn around and make the same move right
back.
I've seen countless beginners do this. I did it. And it's a
horribly bad idea. But I'll be damned if it isn't exactly what SCO appears to
be doing.
Next I expect them to file a motion to compel against IBM.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, October 24 2003 @ 11:07 PM EDT |
Two things to say about this: #1, did a lawyer really write this steaming pile
that SCO apparently had the gall to give to a judge? #2 "Normally SCO's
lawyers wouldn't have a chance against professionals like IBM, but tonight
they're smoking crack!"[ Reply to This | # ]
|
| |
| Authored by: eamacnaghten on Friday, October 24 2003 @ 11:49 PM EDT |
SCO seems to be saying....
That IBM's motion to compel should be dismissed on the grounds that SCO has
been wronged, IBM are guilty so therefore anything that IBM asks for in respect
of proving their innocence is irrelevant, and the only discovery relevant is
what SCO should have to assess details and damages of IBM's guilt.
Is that what they are really saying?
[ Reply to This | # ]
|
| |
| Authored by: midav on Saturday, October 25 2003 @ 12:04 AM EDT |
| Section 2.01 of the AT&T-IBM agreement says the following Such right to
use [the SOFTWARE PRODUCT] includes the right to modify such SOFTWARE
PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided
the resulting materials are treated hereunder as part of the original SOFTWARE
PRODUCT. This is what SCO is insisting on. OTOH, Letter of Understanding
clarifies this point as following: 2. Regarding section 2.01, we agree that
modifications and derivative works prepared by you or for you are owned by you.
However, ownership of any portion or portions of SOFTWARE PRODUCTS included in
any such modification or derivative work remains with us. And this is
IBM's contrargument. I can see some sense in SCO claims, though. Which is the
following. Anything IBM developed for AIX is IBM's IP (patents, copyrights,
etc.) However, being developed as SVR4 derived work, it is subject to Lisence
restrictions which require to treat derived work as original SOFTWARE PRODUCT,
which allows to use ideas and methods in other Software Products, but prohibits
to copy exact code implementing these ideas and methods from the SOFTWARE
PRODUCT or resulting work. Of course, IBM may insist that, at least, JFS was
developed for OS/2 and then independently ported to AIX and Linux. However,
AFAIK, RCU was originally implemented in Dynix, and, thus, subject to licensing
restrictons. It does not mean that RCU can not exist in Linux. But the Linux'
implementation should be sufficiently different from Dynix or AIX
implementation(s.) I would consider argument that RCU was implemented
for an abstract OS as, rather, weak. Any comments, please. [ Reply to This | # ]
|
| |
| Authored by: Grim Reaper on Saturday, October 25 2003 @ 12:30 AM EDT |
Why is SCO requesting documents from IBM when it is clear SCO is not competent
enough to read the documents they already have?
Case in point: SCO states, 'Significantly, IBM also agreed that any
modifications or derivative works of UNIX prepared by IBM, would be treated by
IBM "as part of the original Software Product.' (§ 2.01)."
If you ignore the side letter, which SCO references as Exhibit C, on their
website (http://www.sco.com/ibmlawsuit), then fine; the original contract (SCO
Exhibit A, section 2.01) states, "...Such right to use includes the right
to modify such SOFTWARE PRODUCTS and to prepare derivative works based on such
SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part
of the original SOFTWARE PRODUCT."
Simple enough. However, the side letter, which SCO references as Exhibit C, is
very clearly identified as amending the original contract (Exhibit A). Here is
the language that defines the purpose of the letter:
"Re: Software Agreement Number SOFT-00015, Sublicensing Agreement Number
SUB-00015A and Substitution Agreement Number IFER-00015B
This letter states understandings between our companies relating to the
referenced agreements and amends certain sections in such agreements concerning
SOFTWARE PRODUCTS subject to the referenced Software Agreement."
Well, guess what? SCO Exhibit A is Agreement Number SOFT-00015. Therefore, you
do not need a law degree to realize that SCO Exhibit C, the side letter, is an
AT&T issued legal amendment to SCO Exhibit A, the original code licensing
agreement.
That said, Section 2 of SCO Exhibit C explicitly states, "Regarding
Section 2.01, we agree that modifications and derivative works prepared by or
for you are owned by you. However, ownership of any portion or portions of
SOFTWARE PRODUCTS included in any such modification or derivative work remains
with us."
The language of the amendment is so explicit as to suggest that, even if
AT&T code was contained in an IBM derivative work, only the portions of
original code would belong to AT&T. Thus, removing any System V code
fragments, contained in a derivative work, is sufficient to free the work from
any claims by SCO.
As for SCO's claims of "methods" and "ways of doing
things", this is a retarded argument. How can you create a derivate work
devoid of "methods" or "ways of doing things"? This is
an argument that is completely counter to the language of Section 2 of Exhibit
C. SCO's language is not reflected anywhere in the agreements, and is thus
invented. IBM cannot therefore be bound to such an obligation after the fact.
Therefore, IBM is in fact correct in inferring that the gravamen of SCO's
complaint is trade secrets, since (other than that) SCO has no foundation upon
which to base its grievance.
It should therefore rest that it is the duty of the court to determine whether,
prior to IBM's involvement with Linux, SCO even had any trade secrets to
protect. If so, can it be established that it was in fact IBM's actions that
destroyed the trade secret standing?
Contrary to what SCO is trying to argue, it is impossible to breach a contract
without committing an action forbidden by the contract. Therefore, the burden
rests with SCO to express, with absolute certainty, according to the terms of
the contracts, exactly how IBM breached the contracts.
SCO is legally obligated to honor all of IBM's rights and powers granted by all
contracts and their amendments. SCO can dance around the AT&T side letters
all they want. Eventually, the document will be validated by the court, and
SCO's lawyers will be shown for the fools they are.
If SCO refuses to honor its obligations to IBM under the side letter, SCO
Exhibit C, IANAL, however I suspect in such circumstances, IBM may be able to
appeal to the court for relief from further performance, including the award of
damages.
---
For the love of money is a root of all kinds of evil (1 Timothy 6:10); R.I.P. -
SCO Group, 2005/08/29[ Reply to This | # ]
|
| |
| Authored by: Grim Reaper on Saturday, October 25 2003 @ 12:45 AM EDT |
---
For the love of money is a root of all kinds of evil (1 Timothy 6:10); R.I.P. -
SCO Group, 2005/08/29[ Reply to This | # ]
|
| |
| Authored by: maxhrk on Saturday, October 25 2003 @ 01:39 AM EDT |
http://money.cnn.com/services/tickerheadlines/for5/200310241150DOWJONESDJONLINE0
00537_FORTUNE5.htm
I am not sure if it is worth it. *shrug*[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 03:39 AM EDT |
Not a word about the GPL.. very interesting! Isn't that the SCO
mantra? "We
believe copyright law invalidates the GPL" Yet,
they don't even make mention
nor reference. They have lost all
credibility.
After reading
this, it occured to me that SCO is saying it told IBM
what code was in
violation. It is the code that fell under their
original UNIX license with
AT&T (which is all code!). How
quaint.
This is
like saying, "Mr. police officer, why did you pull me over?"
The officer
states, "You know, you violated a traffic law under the
CA Vehicle Code," and
avoiding stating exactly which law was
violated. The inference is that there
are millions of ways to
cause a violation - which one(s) are they? The accused
has a
right to know, up front.
What SCO is trying to do is pull a
legal fast one: by stating they
told IBM what code was in violation, they, in
fact, are not lying.
However, they are not exactly revealing everything
either. They
failed to address one important thing: what exact code was
contributed to which versions of Linux?
The WORLD has
been waiting for baited breath on
what code they are referring to... and even
up to this point, they
still haven't revealed the code!
=================================================
SCO
Antics
[ Reply to This | # ]
|
- GPL? - Authored by: Anonymous on Saturday, October 25 2003 @ 05:22 AM EDT
- GPL? - Authored by: Anonymous on Saturday, October 25 2003 @ 04:21 PM EDT
- GPL? - Authored by: maxhrk on Saturday, October 25 2003 @ 07:24 AM EDT
- GPL? - Authored by: Grim Reaper on Saturday, October 25 2003 @ 10:00 AM EDT
| |
| Authored by: Wesley_Parish on Saturday, October 25 2003 @ 05:36 AM EDT |
I kept thinking as I read this "Memorandum of Law", that if it was a
piece
of software source code, it would read like
this:int
x;
for(float i = 0; i >= x;
i++){
i /=
0;
} In other words,
it makes no sense. I'm a fan
of nonsense, but primarily
because I
find bureaucracy tends to greater
conditions of entropy, thereby
producing nonsense, and I need to laugh when
I'm forced to deal
with it. I suspect - or rather, I hope - judges are not
so
forgiving. Franz Kafka would find ample space for the SCO
Group in
"The Castle" or "The Trial", if he would to ever return from
the dead and
rewrite them. ---
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 [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 07:48 AM EDT |
SCO fills it's filings with a lot of irrelevent inacuracies. For example,
"In fact, it was widely reported after the trade show that the example of
improperly contributed code was from SGI, which has since publicly ackmowledged
its improper contribution." That's not relevant or accurate. The code
was all BSD licensed and only part of was originally from the ancient UNIX
source code. SGI did not admit to improper contribution. On the other hand
it's not relevant either, so just forget it.
It's not a big thing to be inacurate once in a while but they do it over and
over. Another example, is that they sight the original software agreement
without mentioning that it was completely modified with the Agreement X.
<sarcasm>
Also, I'm confused why IBM can't recognize which trade secrets it has
infringed on.
According to the amended complaint. "166. SCO’s Trade Secrets
derive independent economic value, are not generally known to third persons, are
not readily ascertainable by proper means by other persons who can obtain
economic value from their disclosure and use, and are subject to reasonable
efforts by SCO and its predecessors to maintain secrecy."
Obviously they should just look for something that meats this criteria and then
match that up to their code contributions to Linux.
Yup. That should be real easy.
</sarcasm>[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 07:50 AM EDT |
Although it sounds absurd, SCO really could not file anything better than this.
SCO brought the case against IBM on the basis of the breach of the AT&T
license terms and the claim that IBM put SCO owned code in Linux.
The IBM discovery basically ignors the contract dispute because as has been
shown in previous posts the Ammendment X and the Letter of Intent remove the
"all your code is ours" claim from the contract.
So all that is left is the claim that IBM put SCO IP in Linux. Although SCO are
backing away from the "literal copying" claim they still have not
provided the evidence for that claim. This is what IBM are pushing for so that
SCO identify all of the infringing code that they have based their claim on.
Once SCO are force to provide this IBM will prove that all of the code can be
legally in Linux and will ask for the case to be dismissed.
So the best that SCO can do is to stall the IBM discovery and push through their
own discovery ahead of providing IBM with the ground for the case in the hope
that IBM will provide some documents that give them a case.
I am not a lawyer and have no knowlege of US law. Can IBM be forced to submit
discovery before SCO gives IBM their discovery material?
The added benefit of the delay is that SCO can extort money from Linux users
through their license scheme, and dump their stock while it is still
artificially high. This is probably the worst part of the deal in that there
does not seem to be anything hapenning to stop the extortion and 'pump abd
dump'
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 08:17 AM EDT |
Maybe I'm off base here (IANAL), but as I understand it, no party is under
_obligation_ to conduct discovery, much less with respect to all causes of
action. If IBM wanted to walk into the trial without sending any
interrogatories to SCO at all, it would be their right (as long as they respond
to SCO's discovery). SCO seems to be complaining that IBM's discovery (and,
consequently, the motion to compel discovery) is focused on other aspects of the
case than what SCO wants to focus on. Well, tough cookies! You can't force
IBM to ask you about methods and derivative works instead of trade secrets if
they don't want to. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 08:53 AM EDT |
in other words doesnt IBM need to be told what it is they did?
not have to guess or beg for this information?
will the judge allow this travesty to continue?
br3n[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 09:53 AM EDT |
| ... Nonetheless, SCO has filed supplemental answers to interrogatories,
served today consistent with its agreement to do so, which specify the source
code files that contain the information IBM and Sequent agreed to maintain as
confidential and proprietary. ...
This is interesting and I can't
wait to see what files they listed, which someone in Utah may be able to get on
monday. I'm not holding my breath though, there's a good chance that the list
consists of all the IBM-contributed code SCO complained about before, i.e. NUMA,
JFS, RCU and SMP. This is discovery, after all, so they may get away with
painting with a broad brush once again. At some point though, the judge is
likely to ask SCO to be more precise and give specific file names as well as why
they think these files are infringing. This may not happen for months, at
least. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 04:33 PM EDT |
"SCO, however, previously provided appropriate answers. Nonetheless, SCO
has filed supplemental answers to interrogatories, served today consistent with
its agreement to do so,"
If the original answers were all that was required, why did they supply
supplimental answers? Out of a feeling of charity and goodwill toward IBM,
hoping to help them out with their case?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 04:58 PM EDT |
They are claiming that IBM has failed to provide in discovery materials they
need for their case. But if that is so, then why has SCO not filed a motion to
compel discovery against IBM?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 05:06 PM EDT |
Also, they claim that they can't give IBM what it wants because they don't
know exactly what IBM did wrong. But if that is so, then how can they also say
that they just the day before supplied supplimental answers that will be
satisfactory to IBM?
Oh, and if the answers they just provided to IBM are satisfactory, and IBM's
motion to compel is therefore moot, then why are they bothering to file this
reply? If the judge says yes to IBM's motion to compel, it should be no skin
off their backs because they already have done what the motion to compel
requested.
Or, to come at it another way, if they object to the materials IBM is
requesting, then why did they just give them to IBM? If they object, they
should not have given them, and it makes sense they file a reply, whereas if
they gave them over then it implies that they don't object and so have no
reason for filing the reply. It seems like SCO wants to have it all ways at
once.
Or am I misunderstanding what is going on here? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 07:18 PM EST |
| The case has long turned on the question of what constitutes a "derivative
work". SCO is arguing the position that once something is added to UNIX, it
becomes in some manner a derivative work and that thus they have
ownership/control of it.
Add to this the fact that the SCO lawyers (and I
suspect what technical people they have left at this point) have no idea what
things came from which sources and in what order and they are reduced to looking
at licensed kernels, finding code in them and then finding similar code in Linux
and declaring that the two pieces are the same and ergo, Linux copied.
Thus
the berkeley packet filter code is identified as misappropriated by Linux in a
slide presentation, becuase it looks similar in both Linux and the licensed
kernel they found it in, they have no idea it originated outside SCO/Novell/ATT
to begin with way back when and even if they knew this, they allege that because
it was added to one of 'their' UNIXs that its derived from it in some manner and
hence theirs to licence further. (and yes I know the argument that it was
independantly re-implemented by an original developer from the same requirements
and only looks similar for reasons of 'parallel evolution"?)
Ultimately IMHO
this entire case is going to hinge on how far SCO can extend the concept of
derivative work. If they can make it mean 'anything that ever touched one of
their kernels' then they will likely win. (And the precedents for commercial
entities making ambit intellectual property claims and intellectual property
land grabs lately seem to suggest that they may have some hope...)
If they
extend the scope of a derivative work in this way, then though it seems to me
the entire concept of software licensing is about to die, as no one, commercial
or private, will be able to tolerate the possibility that their work becomes
appropriated as a derivative of something they licensed in good faith. Just
think back(?) to the claims around the viral nature of the GPL contaminating
anything it touches to see what this debate could look like. (Indeed, this still
gets argued in embedded systems circles in spite of the LGPL and other attempts
to limit the scope of the original GPL).
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