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| SCO Tells IBM: No, You Show *Your* Code First |
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Saturday, October 25 2003 @ 06:22 AM EDT
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It's time to analyze SCO's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery, which we posted as text yesterday. If I had to characterize it in a brief sentence or two, the sentence would be that SCO tells the court, "How are we supposed to know what code IBM misappropriated? It's up to them to prove our case for us. It's not for us to hand over the code; it's up to them to show us every bit of code they ever donated to Linux. Then, we'll go over it and find whatever we can find. And anyway, we've given them plenty of stuff just today, so who needs a motion to compel? Let's just forget the whole thing." In short, they don't want to show the code this exact minute. They bad mouth IBM some more, tell a fib or two, by my reckoning, and then sit down, saying the motion should be denied. Let's go over the document piece by piece.
"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."
Here SCO tells the judge that there is no need for any Motion to Compel. They told IBM they'd give them their supplemental answers (that they should have given them from the beginning but didn't until after "weeks of lengthy conversation, correspondence, and emails" made them agree to do it) by today. We did, so why did they file a Motion to Compel? There are pretend reasons used as a cover, they say, and then the real reason. And the real reason was so IBM could have a forum to mischaracterize SCO's claims and so it could hide from their own failure to give SCO meaningful answers to *their* discovery requests. In short, the defense is, IBM hasn't answered all our questions either. Never mind that IBM sent its interrogatories to SCO weeks before SCO sent IBM its interrogatories.
This is certainly a novel way to respond to a Motion to Compel Discovery. SCO has been accused of refusing to turn over information and documents it must turn over, and their answer is, well, they didn't either. Their secondary answer is that although they had not turned the materials over by the date of the filing of the Motion, IBM should have been able to trust SCO's word. Heh heh. IBM already told the judge in its Motion to Compel that the reason they were filing was because SCO had absolutely refused to tell them that they would produce the materials requested, not that they were pokey.
So now, somebody's mistaken or lying. Either SCO told IBM it'd turn over everything IBM asked for by the 23rd, or they refused to commit themselves to doing so, which is IBM's story. So, who do you believe? I think the rest of the document makes clear that when SCO says it offered supplementals, it still didn't mean it would answer all IBM's questions or provide everything IBM asked for.
"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 is asking us things that don't relate to our theory of the case as presented in our complaint, they whine. IBM has brought into the picture the statements that SCO has made in the press and at SCOsource showings, and SCO is protesting, as well they must, since they have said a lot more in the press than in the court papers, and not everything they have said in public is going to be helpful in court, so they are trying to keep IBM inside their own complaint's four walls. But SCO seems to forget that IBM has a case also. A counterclaim is a case on its own two feet. Even if SCO withdrew its charges, IBM's counterclaims stand. So IBM can ask away with respect to their own claims, just as SCO has asked for and received materials from IBM.
"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."
Here, they say, you can deny their motion, because we've turned over our supplemental answers anyway. But that doesn't really cut it, because IBM in its Motion to Compel already told the judge that SCO had offered the supplemental answers but that the answers they planned to give were not all that IBM has requested. And how can the judge possibly know, from this SCO document, what has actually been turned over and whether it is sufficient? Obviously, he can't, and SCO knows it, but they make the argument anyway.
"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."
This is a strange argument. They seem to be saying that they aren't actually talking about trade secrets, at least not primarily. What they are really complaining about is breach of the licensing agreements. I note the plural of agreements, but I don't know exactly what they mean by that. If they mean things like Amendment X and the Side Letter, they are surely sunk, and indeed they never refer to either document. It seems someone has bonked them over the head with great force and now they are suffering total amnesia about those two documents, so what they mean by agreements as opposed to an agreement, we'll have to wait and see. What I'm guessing they mean is the Sequent agreement and the IBM agreement, holding IBM responsible for any breach in the Sequent agreement. They could also be referring to the fact that there have been supposedly many, many agreements over the years. Or it's a Freudian slip of the pen, and they do remember the 1985 side agreement and Amendment X, which well they might, since they themselves attached them to their Complaint as exhibits.
So, trying to parse the logic of their sentence, they are claiming that their accusation of trade secret misappropriation isn't the main part, or gravamen, of their Complaint. Gravamen means the heart of the argument, the part that the case is really all about. They misspell the word, actually, but I've heard Boies is dyslexic, so perhaps he wrote it that way and no one dared to challenge him. IBM is guilty of "numerous breaches of licensing agreements", and counts one through three list them, they say. The rest of the counts are ancillary to counts one through three, showing one of the aspects of the harm SCO maintained as a result of the breaches. This, of course, makes no sense, but we'll move on, except to note that they don't at all want this case to stand or fall on being able to prove misappropriation of trade secrets, probably because they have no ability to prove IBM is guilty of any such thing. So here they are saying, we were damaged, but we shouldn't have to prove it with respect to trade secret violations. Good luck getting a judge to agree that you don't have to prove one of the claims in your complaint.
Here's what Darl McBride said on 07/03/2003: "IBM has taken our valuable trade secrets and given them away to Linux."
Here's another quotation, from June 3, 2003, Darl McBride: "'IBM has been happily giving part of the AIX code away to the Linux community, but the problem is that they don't own the AIX code,' he said. 'And so it's a huge problem for us. We have been talking to IBM in this regard since early December and have reached an impasse. This was thus the only way forward for us.'"
Oh. So which is it? Is this what the case is about or isn't it? And did IBM mischaracterize the case? Did they have no basis for thinking it was about trade secrets being misappropriated? or are SCOfolk speaking with forked, situational tongues?
The problem SCO has is, it has covered the media in press releases and statements for months saying that IBM has done what it now says it wasn't really talking about. They are in a pickle. The code they showed at SCOForum, that they said at the time was proof of IBM's misappropriating their code, turned out to be BSD and maybe SGI code, which IBM had nothing to do with, so they are left with their pants down in front of the judge, and there is a lot of holding newspapers or anything handy in front of embarrassing body parts going on here.
"In its Amended Complaint, SCO alleged that IBM and Sequent (now part of IBM and herinafter 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 and 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]"
Well, now, everything hinges on what you mean by derivative works. But first, the contract itself. As you can see, the amnesia is interfering with their total recall, poor things. I've heard if you tell historic facts to an amnesiac over and over, sometimes their memories return, so let's give it a try.
If they look at their own Exhibit C, attached to their own Complaint, they will find that by means of this Side Letter, IBM was given the right to develop products and services "employing ideas, concepts, know-how, or techniques relating to data processing embodied in SOFTWARE PRODUCTS...provided that the LICENSEE shall not copy any code from such SOFTWARE PRODUCTS...and employees of LICENSEE shall not refer to the physical documents and materials compromising SOFTWARE PRODUCTIONS..."
Got that, SCO? Derivative works are not yours, according to this letter, so long as none of your code is in the derivative work, and the confidentiality requirement is lifted on any such code as well by this letter. And as for trying to lasso every programmer's thoughts and methods and ideas, well, that's just silly. That really would be the end of the software business, because no programmer could ever leave his job and go to work for anyone else unless they gave him a lobotomy first. Maybe just a hard bonk on the head would do, but to be on the safe side, a lobotomy is better. I know. Maybe they could just kill all programmers who try to leave their jobs. If SCO shows their code to a programmer, they'd have to kill him to make sure their ideas and methods don't escape with him. This news report indicates that SCO is worried about programmers' memories: "At the time McBride said SCO was concerned that programmers who had signed agreements to see proprietary SCO source code had moved on to other projects and might be incorporating his company's proprietary code into other projects."
They just can't build walls high enough around their precious IP, and these programmers are such brainiacs, they might remember methods even if you get them sloppy drunk, and then who knows who they might whisper their secrets to? So, all in all, I think killing them is best for the bottom line. Shareholders expect you to think pragmatically, after all.
Outsourcing makes available a seemingly limitless pool of underpaid talent that could be used to fill the shoes of the dead coders, like ants that just crawl right over the corpses of their dead comrades and keep marching forward. There is one problem with this plan. You might think you'd never run out of new coders, but I think it'd be like polluting the ocean. At first, it seems you could never accomplish such a monumental task, but somehow mankind has overcome all odds and achieved it. I think they'd find, similarly, that the hordes of Chinese and Indian programmers, at first a seemingly limitless pool of exploitable, cheap labor, in fact are a finite resource, so I guess we can rule that plan out as impractical long-term. OK, no killing off coders who've seen SCO code. But that leaves SCO with its worrisome problem. How to protect its really old, old ideas?
Getting back to planet earth, Section 2 of the letter means, quite simply, that IBM can take code from AIX and give it to someone else, provided that it contains no original System V code. Are they hoping the judge doesn't read? Doesn't know about Exhibit C? It's very puzzling they don't even mention it, unless they have some reason up their sleeve why they don't agree with this interpretation of the side letter.
"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."
This is the gravamen of their current claim, then, that IBM was supposed to keep code confidential and instead it made it public by donating it to open source. "Brain" seems a lame metaphor for kernel. They call it a kernel because the word is, in itself, a description of what it is. But why quibble? And anyway, we want to plow forward, and this is only the end of their preamble. Now comes their actual response to IBM's motion.
"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]"
Heavens to Betsy! Do you mean to tell me IBM has used innuendo and sniping and unfounded attacks? Why, this is an absolute outrage. Call the police. SCO would never do such a thing, so righteous indignation is understandable and very appropriate for them. You can practically see them shaking with the anger of the upright wronged. Either that, or they hope Judge Kimball doesn't read Groklaw.
"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]"
Didn't they get the news that Groklaw has a searchable database of quotations? As lawyers say to witnesses on the stand when they pretend they have forgotten something, would this refresh your memory? This is what the reporter Maureen O'Gara wrote about what she described in the March 21, 2003, article as a charming conversation with Mark Heise by phone: "We had a charming conversation with the lawyer who's handling the SCO v IBM suit for SCO, a guy by the name of Mark Heise in the Florida office of Boies, Schiller & Flexner. His wife is expecting their first child any minute now. It's safe to say we now know more about his wife's pregnancy than we do about any substantive claims SCO can make against IBM. Heise claims to have them - and isn't proposing to go on discovery fishing expedition - but doesn't want IBM to know what they are. At the time, and this was a week ago, he said he had spent more time talking to us than to IBM, that there had been no contact." As you can see, she wasn't griping about not getting any info about the case. She was saying that Heise told her something, and what he told her was that he didn't want IBM to know what SCO's claims were. Ms. O'Gara is a reputable reporter. And SCO is misrepresenting what she reported.
Additionally, there is this confirmation of Heise's position in a quotation by Darl McBride back in January: "'We feel very good about the evidence that is going to show up in court. We will be happy to show the evidence we have at the appropriate time in a court setting,' McBride said. 'The Linux community would have me publish it now, (so they can have it) laundered by the time we can get to a court hearing. That's not the way we're going to go.'"
"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."
This is a trick answer. Here, SCO says IBM is accusing them of not answering their questions, but SCO says they did, too, answer. And then they agreed to answer them better and have now done so, so as of today, SCO has provided IBM with the specifics about which files they allege are infringing....Nah. Just checking to see if you were still awake. They don't say any such thing, and they didn't turn over the info IBM asked for. They told them instead exactly which source code files "contain the information IBM and Sequent agreed to maintain as confidential and proprietary." That's not the same thing at all. That would be every line of code, if you stop and think about it. It's all, according to them, confidential and proprietary, even programmers' thoughts. And, excuse me, but that isn't what IBM asked for. What they asked for, as SCO acknowledges, is "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.'" This is SCO dancing as fast as it can. It wants the judge to think they have complied when they have not. They still haven't shown the code they think is infringing.
"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 reponse 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."
Huh? They don't know of any infringing code, but they just know it must be in there somewhere? They want IBM to show them the smoking gun so SCO can build its case? Their argument is: we can't tell you what code is infringing, because you haven't told us yet. IBM wrote the code themselves, so we don't know what they wrote, but it must be ours. We hope to find it after IBM answers our interrogatories, and if we do, then we'll tell IBM where it is. On that basis, they say the motion need not be granted.
What happened to the spectral analysts and the MIT mathematicians and the physicists who deep-dived, as McBride put it, and analyzed the code and found "millions" of lines of infringing code? Just a couple of days ago, McBride said the same thing in a French interview, and now they don't know of any specific lines of infringing code?
This is a new tack. They use a toxic tort case, meaning someone got hurt by a toxin of some kind, and say, "That's us, your honor. We've been hurt, but we aren't sure yet exactly where."
Here's what they used to say, first Heise: "We're educating the public in general that, well, there is in fact infringing code, both direct line for line and obfuscated code, derivative works, non-literal -- it's there. [We] just don't want the rest of the world to believe that it's not [there], that this is some sort of smoke and mirrors. It's not."
Now, they say it *is* smoke and mirrors, and the smoke won't clear without IBM stepping up to the plate and showing where their crime is hidden. SCO is complaining that IBM did not keep the code confidential, yet they can't find it because IBM kept it so confidential SCO can't locate it. But here is what they told attendees at SCOForum: "Those prepared to sign a non-disclosure agreement were treated to select chunks of code that SCO claims were copied from its Unix operating system into IBM's version of Linux. . . .
"At the SCO Forum on Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux, and it's warning Linux customers that they may be violating copyright by using the operating system without paying SCO. It's also recently rolled out a new licensing plan that would require Linux customers to pay between $199 (£125) and $699 per computer. . . .
"As of the end of the day on Monday, more than 150 had seen the code presentation, which the company said includes a small portion of the infringing code it's found so far. Sontag said the company has uncovered more than a million lines of copied code in Linux, with the help of pattern recognition experts.
"A compelling case? According to those who viewed the code at SCO Forum, company representatives showed off several categories of code that allegedly infringed its copyrights, including some lines that appeared to be directly copied, some that were derivative works, and some that were obfuscated, such as code from which legal disclaimers had been removed. . . . .
"After viewing the code, Don Price, the general manager of Price Data Systems, said he was surprised at the volume that was allegedly copied. 'It's compelling,' he said. 'Some people were either extremely sloppy, or copied and thought no one would go after them.'"
"Neil Abraham, with SCO reseller Kerridge Computer, said SCO made the right decision to pursue IBM. 'I think they've got a very firm case,' he said, after looking at the code. 'It's not just one line. It's huge chunks.'" OK. That was then. This is now. And now, SCO with a straight face tells the judge they just don't know where infringing code might be hiding. That's why they haven't turned it over. "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."
This is just the sum-up of why they feel the motion should be denied: it's too soon, they've already provided supplemental answers, and IBM's motion is moot. If you weren't convinced already, this won't do it either. But now they launch into a counterattack on IBM. They are "forced" to do it because of two arguments IBM has made.
"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 coping; (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."
Sigh. This is like when your kid gets such a knot in his shoe, you hardly know where to begin. First, you just read the SCOForum news report. Is SCO being truthful in saying the slides don't say IBM on them? Yes. But did they verbally say all the things they are now denying? According to the news reports, they did. "Nevertheless, McBride and other attorneys including Mark Heise, another hired gun from Boies, Schiller & Flexner LLP, presented SCO's pending case against IBM, this time to a jury of hundreds of Unix resellers and solution providers gathered at SCO Forum 2003.
"The cameras flashed when SCO attorneys briefly highlighted on screen alleged examples of "literal" copyright infringement and improper use of derivative works of Unix System V code that appear in Linux 2.4X and Linux 2.5X.
"While it was difficult to ascertain the exact code being shown on screen, attorneys pointed to exact copying of some code from Unix to Linux and claimed that IBM improperly donated almost a million lines of Unix System V code to the Linux 2.4x and Linux 2.5x kernel that infringe on its Unix System V contract with SCO -- and SCO's intellectual property."
Those reporting and those attending agree with IBM that SCO accused them. So is SCO being truthful to this judge? Like a car salesman, maybe. They say they have not publicly made any such allegation against IBM.But the news stories prove otherwise. Folks, I mean no disrespect, but don't these allegedly religious men pray at night? If so, how do they raise their eyes to heaven? Judge Kimball strikes me as an honorable man, so maybe there is hope that he will be shocked and disturbed that SCO has the unmitigated gall not only to lie about what it said but to attack IBM for "misleading" the court by pointing out that SCO said it and asking them for proof of the public accusations. Why, the whole world knows it was SGI, they disingenuously say, who wrongfully put that code in, because they have admitted it.
First, that isn't what SGI said at all. They said the code appeared to be most, if not all, public domain code. Anyway, whatever happened afterwards doesn't change what SCO said at the show. SCO accused IBM publicly and now they want to pretend they didn't say it. And what they said at the show wasn't the only time they have made such accusations against IBM. Just check our quote database.
"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 repond 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 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 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 verison 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."
This is really low. IBM has told the judge that it can't respond to SCO without knowing what they are accused of specifically. SCO now says this is "absurd", as if it were a novel notion that an accused defendant has the right to know the charges against him. And all these arguments are irrelevant to this motion. SCO didn't bring a Motion to Compel, although knowing SCO, no doubt they'll try that next. This is IBM's Motion to Compel, not the reverse. Why SCO's attorneys inserted all this stuff about IBM not answering is a genuine mystery. It won't mean a thing to anyone, and I'm sure they must know it, unless they are playing to the peanut gallery.
SCO has asked IBM to provide all the code it has ever donated to Linux. It makes a big fuss about their failure to do that. Why, the nerve of IBM asking SCO to reveal what trade secrets it has allegedly violated. IBM is saying, you can't just go fishing. Tell us what you think we've done wrong and we will respond. And SCO says, we want to go fishing. Imagine if you could just accuse a software company of wrongdoing and without providing any specifics or having any proof, you could make them turn over all their proprietary code so you could comb through it and try to find infringement. I'd say if courts allowed that, we'd have even more business-model-by-litigation than we already have to endure. Discovery is most particularly not supposed to be abused that way. You aren't supposed to use it as a way to go on fishing expeditions. Anyway, all SCO has to do is go through the Linux code itself and look for IBM copyrights. Or look on the internet. It's all public.
"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 requestes that this Court deny IBM's Motion to Compel." Wholly inaccurate? By what yardstick? There are four footnotes too, but they are self-explanatory. Offensive, but self-explanatory. One footnote requires a reply:
"[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." Um. Did they forget about copyright? That most holy of holy laws? Nobody can take copyrighted code and modify, rewrite it, or give it away. You don't need a license to protect code from that. Shucks. These folks just don't understand IP law. That's the bottom line. Well, never mind. They'll find out.
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| Authored by: ra on Saturday, October 25 2003 @ 09:03 AM EDT |
What a treat.
Thanks a lot PJ.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, October 25 2003 @ 09:26 AM EDT |
| I've been told I'd have made a good lawyer. However - after reading the
analysis, and all the double talk, and all the mistatements, I'm really
glad I became an engineer instead. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 09:38 AM EDT |
Maybe I'm missing something here, but why on Earth is SCO arguing the merits of
their case on a Discovery motion?
Perhaps I'm naive, but I always thought that discovery was about putting your
evidence on the table.
I'm guessing that that $50,000,000 has gone to paying some eloquent tailors to
get SCO to parade naked in front of Da Judge.[ Reply to This | # ]
|
- Big Smokescreen - Authored by: Anonymous on Sunday, October 26 2003 @ 06:14 PM EST
- Big Smokescreen - Authored by: Anonymous on Sunday, October 26 2003 @ 07:43 PM EST
- Big Smokescreen - Authored by: Anonymous on Monday, October 27 2003 @ 12:07 PM EST
| |
| Authored by: ra on Saturday, October 25 2003 @ 09:39 AM EDT |
IBM's 'own version of UNIX' (IBM Mem., p.2 n.1),
This was pointed out in the last story. When IBM used the term Unix in their
memorandum, they very specifically were not talking about UNIX System V source
code ('UNIX').
It's amazing that SCO thinks it can get away with tricks like this with anyone
more than six years old.[ Reply to This | # ]
|
| |
| Authored by: mflaster on Saturday, October 25 2003 @ 09:42 AM EDT |
If they look at their own Exhibit C, attached to their own
Complaint, they will find that by means of this Side Letter, IBM was given the
right to develop products and services "employing ideas, concepts, know-how,
or techniques relating to data processing embodied in SOFTWARE
PRODUCTS...provided that the LICENSEE shall not copy any code from such SOFTWARE
PRODUCTS...and employees of LICENSEE shall not refer to the physical documents
and materials compromising SOFTWARE PRODUCTIONS..."
But, as
devil's advocate, couldn't this be read to mean that IBM can develop its own
products as long as they do not copy any code or refer to any physical
documents or materials? Can't SCO claim that this is a very narrow grant of
rights, and in fact the few (minor) violations of IBM (assuming there are any)
are enough to cause IBM's new code to be part of Unix?
Mike
[ Reply to This | # ]
|
| |
| Authored by: Mark_Edwards on Saturday, October 25 2003 @ 09:48 AM EDT |
Once again PJ a truly excellent breakdown of the latest in SCO's stupid
excuse of a lawsuit..
Keep up the excellent work !!!!
Mark
[ Reply to This | # ]
|
| |
| Authored by: hombresecreto on Saturday, October 25 2003 @ 09:51 AM EDT |
Excuse me for having a really excellent memory, but SCO Group now seems to be
denying thier MIT experts ever existed, that their code reviews ever produced
anything, that their code-show in Vegas was all Bullsh*t, that they now claim
NUMA and RCU which they previously stated they did not own the copyrights to (or
have any ownership of), and that they lied to those at the Vegas forum
altogether because they have been found to be lying.
I don't buy anything they have to say and neither should any reasonable person.
I am searcing for that BayStar/Rennaissance link. I already have a
Deutsche/BayStar link (several of them in fact).
What's worse: a certain Mr. Gordon convicted of embezzlement was a protege of a
high exec at Deutsche and used BayStar to finance his embezzlement operation at
usurous (sp?) - okay loan-shark terms with Spanlink wherein they got $5 Million
from BayStar but had to repay $10 Million from that $5 Million loan. They have
been in the soup on several shady deals.
It gets worse. I am now on the heels of the Sirius/Baystar/Deutsche/RBOC
connection. I think that is where their client is from.[ Reply to This | # ]
|
| |
| Authored by: freeio on Saturday, October 25 2003 @ 09:51 AM EDT |
"SCO would never do such a thing, so righteous indignation is
understandable and very appropriate for them. You can practically see them
shaking with the anger of the upright wronged. Either that, or they hope Judge
Kimball doesn't read Groklaw."
Or that any smart young paralegals in the office read Groklaw, and might pass
along what they find... One thing that is obvious to outsiders is that judges
never seem to react well to being mocked in their own courts. But it does force
me to ask whether such insults as are in the TSG memorandum to the court are
considered the norm, when coming in official documents prepared by officers of
the court? To obfuscate, to prevaricate, to baldly lie is one thing, but this
reaches the level of insult to the court itself.
"She was saying that Heise told her something, and what he told her was
that he didn't want IBM to know what SCO's claims were."
I should think that this would be the ultimate way to commit suicide by judge.
Start a big lawsuit, and then obfuscate until the judge can plainly see you are
wasting the court's time by failing to plainly tell the court what your charges
are. That approach can only last so long, and then may come to a sudden and
very unfavorable end.
---
TRVTH[ Reply to This | # ]
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| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 09:55 AM EDT |
This is probably premature, given that SCO's arguments are amateurishly
transparent and due for a legal trashing. but should the judge not compel them,
would IBM be within its rights to subpoaena the folks who saw SCO's secret
sauce under NDA ?
l0t3k[ Reply to This | # ]
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| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 09:56 AM EDT |
Since SCO doesn't know what IBM "misappropriated," how is IBM
supposed to know?
This means SCO has no evidence to present. Can't IBM get a summary dismissal on
these grounds? Or am I mistaken in believing that lack of evidence means there
is no case?
Stuart Thayer[ Reply to This | # ]
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| |
| Authored by: waponywu on Saturday, October 25 2003 @ 10:23 AM EDT |
PJ
Excellent site. Keep up the good work.
Excuse my ignorance about the legal system, but when will the
judge rule on these motions? Can he tell them to put up or shut up before the
trial?
Thanks[ Reply to This | # ]
|
| |
| Authored by: overshoot on Saturday, October 25 2003 @ 10:25 AM EDT |
| Imagine if you could just accuse a software company of wrongdoing and without
providing any specifics or having any proof, you could make them turn over all
their proprietary code so you could comb through it and try to find
infringement. I'd say if courts allowed that, we'd have even more
business-model-by-litigation than we already have to endure. Discovery is most
particularly not supposed to be abused that way. You aren't supposed to use it
as a way to go on fishing expeditions. PJ, haven't you pretty much summed
up this whole case? It's been seven months now and AFAICT TSG has adamantly
refused to state enough specifics on any of their claims to be rebuttable
[1]. Isn't being rebuttable one of the key requirements of a legal claim?
Sort of the legal antonym of "vague?" My own suspicion is that that's why IBM
wants oral arguments: get TSG in front of the Judge where they can't get out of
actually answering the question and evasive tactics will get them a contempt
citation. [1] I'm enough of an epistemologist that I keep wanting to write
"falsifiable."
[ Reply to This | # ]
|
| |
| Authored by: Nick on Saturday, October 25 2003 @ 11:09 AM EDT |
Wait just a a second, am I reading what I thought I read? Let's get the
sequence right:
1. SCO shows slides at the SCO Forum, pointing out examples of the
copying they were accusing IBM of doing.
2. Reporters report this matter, saying here are examples SCO is using of
what IBM copied.
3. Everybody and their monkey analyze the code, realize it has nothing
to do with IBM and has a good laugh at SCO's expense.
4. IBM points this out to the judge.
5. SCO responds, mockingly, 'You see, your honor, they point to this as
an example of where we accuse IBM of stealing code, but this is clearly
not IBM's code so what are they talking about?'
In other words, they tried something, got caught, laughed at, and then
used the same example but now to mean the opposite thing based on
what everybody and their monkey told them it actually meant.
Hmm...analogy time:
Young boy is playing with a deck of cards. Bratty younger brother comes
up to his mother and yells, crying, "Brother hit me with that hammer in
his hand!"
Older brother points to the deck of cards in his hand and says,
"Huh?"
Mother turns to the younger boy, "Your brother says he has a deck of
cards in his hand, not a hammer. What are you talking about?"
Younger, bratty brother looks up at mommy with an angelic look in his
face and says, "How could I possibly accuse him of having a hammer?
Look, he has a deck of cards. It makes no sense for me to have said he
has a hammer when he clearly does not."[ Reply to This | # ]
|
| |
| Authored by: dan_stephans on Saturday, October 25 2003 @ 11:17 AM EDT |
Somehow my brain has started to see TSG not as "The SCO Group" but
instead as "The Stupid Guys".
It makes reading the discussions much better as it sets proper context for what
TSG says. =))
Dan[ Reply to This | # ]
|
- OT: TSG - Authored by: Anonymous on Saturday, October 25 2003 @ 01:43 PM EDT
- OT: TSG - Authored by: Phong on Saturday, October 25 2003 @ 02:27 PM EDT
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 11:38 AM EDT |
<I>"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.</I>
Okay, so can IBM turn over an empty sheet of paper as for their violations ?[ Reply to This | # ]
|
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| Authored by: eloj on Saturday, October 25 2003 @ 11:55 AM EDT |
Okay, I have a small problem with PJ's characterization of one section, which
is the one above "Huh? They don't know of any infringing code, but they just
know it must be in there somewhere?"
I've reread what SCO said there
several times, but I don't see anything talking about what (that is;
what code), only about who and when. That is; "Some of the
information" refers to who authorized the release under GPL and at
what date. SCO claims to not know this, and say that only IBM know and
should tell them. [ Reply to This | # ]
|
- I'm the devil - Authored by: overshoot on Saturday, October 25 2003 @ 12:16 PM EDT
- I'm the devil - Authored by: eloj on Saturday, October 25 2003 @ 12:30 PM EDT
- Wifebeating - Authored by: overshoot on Saturday, October 25 2003 @ 01:24 PM EDT
- I'm the devil - Authored by: ra on Saturday, October 25 2003 @ 01:31 PM EDT
- I'm the devil - Authored by: eloj on Saturday, October 25 2003 @ 01:46 PM EDT
- I'm the devil - Authored by: Anonymous on Saturday, October 25 2003 @ 02:43 PM EDT
- I'm the devil - Authored by: Anonymous on Saturday, October 25 2003 @ 03:05 PM EDT
- No problem. - Authored by: eloj on Saturday, October 25 2003 @ 05:26 PM EDT
- No problem. - Authored by: Anonymous on Sunday, October 26 2003 @ 12:26 PM EST
- I'm the devil - Authored by: PJ on Sunday, October 26 2003 @ 04:09 AM EST
- I'm the devil - Authored by: PJ on Sunday, October 26 2003 @ 04:09 AM EST
- I'm the devil - Authored by: skidrash on Saturday, October 25 2003 @ 04:01 PM EDT
- I'm the devil - Authored by: Anonymous on Saturday, October 25 2003 @ 07:24 PM EDT
- I'm the devil - Authored by: Anonymous on Saturday, October 25 2003 @ 12:28 PM EDT
- I'm the devil - Authored by: Anonymous on Saturday, October 25 2003 @ 01:07 PM EDT
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 12:05 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."
Um. Did they forget about copyright? That most holy of holy laws? Nobody can
take copyrighted code and modify, rewrite it, or give it away. You don't need a
license to protect code from that.
The "gravaman" complaint comes from critical restrictions? So ....
IF IBM didnt misappropriate any trade secrets and only made modifications that
they were authorized to do.... YUP, SCO is on Crack! Think about it, what
restrictions could they have broken if they hadnt disclosed code, the whole case
stands on whether they can prove it.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 12:21 PM EDT |
| After PJ has done her bit, there is nothing left for us to do then to offer some
entertainment in 'An Open Bark Letter
From Everybody's Favorite Corporation'.
Hans [ Reply to This | # ]
|
| |
| Authored by: gnuadam on Saturday, October 25 2003 @ 12:28 PM EDT |
YAMCL - yet another microsoft canopy link
http://www.newsforge.com/article.pl?sid=03/10/25/1314241&mode=thread&tid
=137&tid=147&tid=20&tid=85
Speculating that microsoft might buy some web-services properties off of
canopy/sco.
For your reading/research pleasure.[ Reply to This | # ]
|
| |
| Authored by: mflaster on Saturday, October 25 2003 @ 12:40 PM EDT |
Correct me if I'm wrong, but SCO is not making IP claims, but rather breach of
contract claims.
If their contract said "Any file you put in the same directory as Unix
becomes a part of Unix", then that would be enforceable, right?
Obviously their contracts don't say that, but that's why they keep talking
about "methods and know how", because that's what the contract
says, even though those terms wouldn't fall under any general IP category
(maybe patents).
Mike
[ Reply to This | # ]
|
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| Authored by: Anonymous on Saturday, October 25 2003 @ 12:54 PM EDT |
In a previous comments section, somebody speculated that IBM was daring SCO to
say to the court, something like:
"we control IBM stuff, even when it includes no element of our
stuff"
Well, SCO just did. In fact, they went further.
SCO said **their whole case** is based around that concept.
1. It contradicts their complaint,
for example: "162. SCO’s Trade Secrets are embodied
within SCO’s proprietary SCO OpenServer and its related shared
libraries and SCO’s UnixWare and its related shared libraries."
now SCO is effectively saying something like "SCO's Trade Secrets are in
IBM and Sequent code, developed by them, which we have never seen before, and
which we contend that we control... despite having no proper knowledge of the
code or development process or trade secrets"
2. IBM can NOT settle.
- IBM owns the patents. SCO (will) acknowledge that
- IBM owns the copyright. SCO (has in mozillaquest) acknowledged that.
- IBM owns the trade secrets if any. SCO effectively acknowledges that.
- IBM contends that the items is 100% theirs and free of SCO elements. SCO
effectively acknowledges that.
So:
IBM thinks they control it
...but SCO says - no we control it, despite all the above.[ Reply to This | # ]
|
| |
| Authored by: karlrhs on Saturday, October 25 2003 @ 01:01 PM EDT |
I live in Salt Lake City and I want everyone to know that there are some great
people here in Utah. I love Linux and I love the work PJ has put in.
PJ I live only about 3min away from the courthouse if you need me to get
anything for you. I would love to help.
Now on to my question.
How long must we wait... for the well you know... to hit the fan?? When will we
hear from the Judge?
Thank you Karl[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 01:06 PM EDT |
SCO must go bonkers when they read PJ's excellent analysis of their legal
maneuvering. She continually shows up the legal arguments from one of the best
known and top rated law firms as being amateurish. I bet PJ is saving Red Hat
and IBM enormous amounts of money on research and I wouldn't be surprised if
the Judges in these cases instruct their clerks to keep an eye on Groklaw.
In a previous article PJ stated she needs to find a way to make Groklaw pay her
a salary. Perhaps PJ should put up a paypal donation button for those
individuals and corporations that wish to keep Groklaw alive and pumping out the
truth. If Microsoft, Sun and HP find value in supporting SCO's mischief making
perhaps IBM, Red Hat and other good guys will find value in supporting their
friends who are exposing SCO's mischief. Groklaw should also syndicate its
headlines so that mainstream tech analysts can have ready access to an excellent
model for what they (the analysts) pretend to be doing.[ Reply to This | # ]
|
| |
| Authored by: fxbushman on Saturday, October 25 2003 @ 01:17 PM EDT |
| It probably is futile to try to make sense out of SCO's motion. At this point
they understand that the case is lost, and in fact it is doubtful that they ever
expected it to go this far - since, obviously, they have no case and must have
known that from the beginning.
We can guess 3 actual goals: (1) Maybe IBM
will buy us; (2) Naive investors will push up our stock price and we can make a
killing; (3) Darl gets a juicy bonus if he can stay profitable a little
longer.
They now know (1) ain't gonna happen. This may be a huge
miscalculation on SCO's part. (2) is happening as we speak. (3) also
seems likely to occur as long as SCO's hidden angels continue to pump cash into
the company. So from Darl's point of view things arn't as bad as they might be.
When SCO is an empty husk and no longer useful to him he will move on to some
other scam.
[ Reply to This | # ]
|
| |
| Authored by: Thomas Frayne on Saturday, October 25 2003 @ 01:27 PM EDT |
After a long search, yesterday, I found that Amendment X is SCO's exhibit D,
which can be downloaded from http://www.sco.com/ibmlawsuit/
PJ, you mentioned that the Side Letter is another exhibit. Which one?
Is there a place to find summaries of the contents of the exhibits? I would
like to find which agreements contain IBM's rights to derivative works in AIX.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 01:33 PM EDT |
Everyone seems confused by SCO's demand that they must see IBM's code (or code
history) before they (SCO) can provide answers on what infringment has
occurred.
But everyone is assuming (because, unlike SCO, they are using logic) that SCO is
referring to infringments on SCO's own code or programming concepts.
However, we must remember SCO's claim that everything that IBM puts into AIX is
covered by IBM's contract with SCO, as a derivative work, and is therefore a
trade secret of SCO.
Therefore, what SCO is claiming as their trade secret is program code that SCO
has never seen, and to which SCO has no access.
Thus, what SCO is saying is that it does no good to compare SCO's Unix code
with Linux, because what they really need to do is compare IBM's AIX code with
Linux. And in order to do that, SCO must see IBM's code or code history.
After that, SCO will claim that any AIX code that is in Linux is what violates
SCO's contract with IBM.
In other words, in order to understand what SCO is saying, you must first join
SCO on the other side of the looking glass.
[ Reply to This | # ]
|
- You are wrong - Authored by: Yury on Saturday, October 25 2003 @ 01:53 PM EDT
- Okay, I think I've got it -- maybe - Authored by: Anonymous on Saturday, October 25 2003 @ 04:34 PM EDT
- Okay, I think I've got it -- maybe - Authored by: nabet on Saturday, October 25 2003 @ 05:11 PM EDT
- Okay, I think I've got it -- maybe - Authored by: Anonymous on Saturday, October 25 2003 @ 05:57 PM EDT
- Okay, I think I've got it -- maybe - Authored by: Anonymous on Saturday, October 25 2003 @ 06:00 PM EDT
- Okay, I think I've got it -- maybe - blacklight - Authored by: Anonymous on Saturday, October 25 2003 @ 08:28 PM EDT
- This is exactly what they are claiming - Authored by: Anonymous on Sunday, October 26 2003 @ 12:27 PM EST
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 01:52 PM EDT |
| Love reading your work. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 02:06 PM EDT |
| In footnote 4 SCO supplies a URL to Eric Raymond's FUD definiton page.
Eric has updated it with info about the SCO case.
[In 2003, SCO
sued IBM in an action which, among other things, alleged SCO's proprietary
control of Linux. The SCO suit rapidly became infamous for the number and
magnitude of falsehoods alleged in SCO's filings. In October 2003, SCO's lawyers
filed a memorandum in which they actually had the temerity to link to the web
version of this entry in furtherance of their claims. While we appreciate the
complement of being treated as an authority, we can return it only by observing
that SCO has become a nest of liars and thieves compared to which IBM at its
historic worst looked positively angelic. —ESR]
What will the judge
think if SCO themself directs him to a page with this information.
LOL
Hans [ Reply to This | # ]
|
| |
| Authored by: gumout on Saturday, October 25 2003 @ 02:07 PM EDT |
PJ you're missing the main thrust "gravamen" of SCO's argument.
They are claiming breach of contract because of the "provided the
resulting materials are treated hereunderas part of the original
SOFTWARE PRODUCT" in Exhibit A 2.01.
---------------------------------------Exhibit A---
2.01 AT&T grants to LICENSEE a personal, nontransferable, and nonexclusive
right to use in the United States each SOFTWARE PRODUCT identified in the
one or more Supplements hereto, solely for LICENSEE'S own internal business
purposes and solely on or in conjunction with designated CPU's for such
SOFTWARE PRODUCT. Such right to use 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.
--------------------------------------------------
SCO is claiming contract rights trump ownership rights... and in this they are
correct. Exhibit C grants IBM ownership but SCO says our contract rights control
your rights. It is well settled law that ownership rights can be controlled by
contract rights. So the grant of ownership rights to IBM in itself did not save
the day.
------------------------------------------Exhibit C ---
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.
2. 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.
---------------------------------------------------
Now to the point. Section 2. of Exhibit C cannot be interpreted in a meaningful
way when we use the phrase "provided the resulting materials are treated
hereunder as part of the original SOFTWARE PRODUCT" from Exhibit A. The
section that states "the works prepared by or for you are owned by
you" contradicts "provided the resulting materials are treated
hereunder as part of the original SOFTWARE PRODUCT... remains with us".
If the materials are treated as part of the the original SOFTWARE PRODUCT they
are owned by SCO but Sec. 2 Exhibit C says IBM owns the materials .. a logical
contradiction.
This is a common occurrance in contract law when substitute (amended ) contracts
are negotiated. It is well settled law that the substituted (amended) contract
must be controlling. If there is a contradiction in terms the the language in
the original contract is voided. Hence "provided the resulting materials
are treated hereunder as part of the original SOFTWARE PRODUCT" is voided
by the subsequent amendement. This contradiction and not simply
"ownership" saved IBM's contractual butt. It may well be that SCO
doesn't yet understand this contradictory language. I'll bet you my wife's
Cadillac (I am allowed to drive and old truck) that Judge Kimball understands
this.
---
First you get to rub the turpentine on the tiger's ass... then it's the tiger
turn.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 03:20 PM EDT |
They have taken their stock price from below $1 to above £20
They have got around $30,000,000 from Microsoft and Sun,
They have got $50,000,000 from Baystar and RBC (OK this is just a loan),
Their execs and others have sold 100,000s of shares at vastly inflated prices,
netting millions in profits
They have a nice little licensing racket going
They can run this sham of a trial for 7 month without even saying what their
alegations are
and their isn't even the remotest sign of any action against them..... God
bless America
Yes I am a troll, but seriously, how can they get away with slander, libel,
stock manipulation, extortion, false accusations and everything else for so
long!!
[ Reply to This | # ]
|
| |
| Authored by: J.F. on Saturday, October 25 2003 @ 03:24 PM EDT |
From Amendment X
3. CONFIDENTIALITY
3.01 SCO
Shall include the appropriate markings of confidentiality on the REFERENCE
SOFTWARE PRODUCT. As such, YOU shall treat all REFERENCE SOFTWARE PRODUCT or
SOFTWARE DERIVATIVE provided to you under this Agreement in accordance with the
terms and conditions of this section.
If I remember
correctly, a programmer from Australia mentioned that SCOG no longer HAD their
own copy of SYSV and that he had sent them a copy of his source on DAT tape.
This copy will not include "appropriate markings of confidentiality" in it! SCOG
doesn't know in its own code what was or was not supposed to be
confidential. They want IBM to provide a copy of what they no longer have - the
original code with all the sections with the appropriate confidentiality
markings indicated in the license.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 03:48 PM EDT |
"At the time McBride said SCO was concerned that programmers who
had signed
agreements to see proprietary SCO source code had moved on
to other projects
and might be incorporating his company's proprietary code
into other projects."
They just can't build walls high enough around their precious
IP, and these
programmers are such brainiacs, they might remember methods even
if
you get them sloppy drunk, and then who knows who they might whisper
their
secrets to? So, all in all, I think killing them is best for the bottom line.
Shareholders expect you to think pragmatically, after all.
This is
the part where I literally laughed outloud, no kidding. Thanks for my
Saturday
morning laugh. It is better than any Saturday morning cartoon (I
used to love
Bugs Bunny/Road Runner hour as a kid).
PJ, you have outdone yourself.
My addiction to GROKLAW is growing ever
more obsessive. Just when I thought
you had the goods on SCO, you
produce something even more seething.
I have to be honest, when I read their response, and IANAL, I thought it was
a
big pile of steamy, hot bullsh*t.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 04:13 PM EDT |
Actually, I think the first poster has the right idea, and that when SCO claims
that millions of code have been copied, they are referring to contract covered
AIX code, and not original SysV code. In SCO's mind, the two sets of code are
essentially one.
This case clearly turns on the definition of derivative works, and the nitty
gritty details of the IBM/SCO contracts.
A second issue is whether SCO gave up any of its own rights under these
contracts by informally agreeing that it was OK for IBM to port AIX code to
Linux, or not complaining about IBM's plans earlier rather than later.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 04:15 PM EDT |
How about this for using SCO's copycat scheme against them:
IBM could do the same thing against UnixWare and OpenServer
- charge them with copyright viation from including GPLed
code into their proprietary products and refusing to indicate
which code!
Oh well, it's getting late - nighty... -r ;-)
[ Reply to This | # ]
|
- Fishing trip. - Authored by: Anonymous on Saturday, October 25 2003 @ 04:54 PM EDT
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 05:32 PM EDT |
I must be missing something. sco is asking for the code ibm has contributed to
linux ?
Why doesn't ibm sends sco a cd containing the linux kernel source code ?
Actually, they might even (as an encore) download it first from sco's own ftp
site, where it can still be found!
Ernest ter Kuile.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 05:47 PM EDT |
As some posters have remarked, SCO has a tendency to take an argument against
them, twist them around and throw it back.
IBM: "They're accusing us in public and they still haven't told us
specifically what we supposedly did wrong."
SCO: "No, it's really IBM that's been grossly mischaracterizing our
allegations! And they still haven't told us what they did wrong!"[ Reply to This | # ]
|
| |
| Authored by: PM on Saturday, October 25 2003 @ 06:00 PM EDT |
The opening line in the memorandum would be more appropriate when applied to
SCO. It would strongly seem that Darl and co are calling the shots with this
litigation, with the lawyers being virtually their 'fall guys'.
It would be interesting to know what road map SCO was working to and to what
extent it had worked out. Or is it that Darl has this amazing knack of turning
'problems' into 'opportunities'.
I am reminded when as a kid our neighbour was inventing a revolutionary diesel
engine. He built a prototype which did splutter into life, but it was unlikely
to be ever commercially viable. He however had little difficulty raising money
for his invention (he leveraged off all the name dropping he could including
mentioning the university engineering school where I later studied). Hence the
transition from inventor to fundraiser was easy. Two investors sued and won,
one was reluctantly overturned on appeal ('Mr X is a very astute gentleman'
commented the Judge). Other investors did not sue as they did not wish to be
revealed as naked 'emperors'. Was he a real inventor or just a huckster using
the engine as an 'investment' vehicle?
SCO's roadmap seems to be similar, an idea to make money out of IP that SCO
allegedly owned turns to custard, but SCO still finds it easy to make money
using the discredited IP claims as an 'investment vehicle'. Or was that
SCO's original intention, like the diesel engine.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, October 25 2003 @ 06:10 PM EDT |
There is a suit and a countersuit. Are the discovery processes simultaneous? So
for instance, does IBM in one document ask for discovery for both the suit
against it and for its countersuit, or does IBM submit one document asking for
discovery to defend itself against the suit, and submit another document for
discovery to build its case against SCO in the countersuit?[ Reply to This | # ]
|
| |
| Authored by: Thomas Frayne on Saturday, October 25 2003 @ 06:17 PM EDT |
SCO keeps claiming that IBM has no rights to AIX, except those conferred by
agreements with SCO. As far as I can see, IBM owns AIX outright, and
unencumbered. Here are my reasons:
SCO Exhibit C: sideletter, date stamp: Feb 1, 1985
Page 2
2. 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.
Page 4:
--7.06(a) ... Nothing in this agreement shall prevent LICENSEE from developing
or marketing products or services employing ideas, concepts, know-how or
technologies relating to data processing embodied in SOFTWARE PRODUCTS, provided
that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such
product or in connection with any such service, and employees of LICENSEE shall
not refer to the physical documents and materials comprising SOFTWARE PRODUCTS
subject to this agreement when they are developing any such products or
providing with any such service.
This tells me that IBM owns the derivative products, e.g., AIX, except for code
copied from SOFTWARE PRODUCTS, and that if IBM did not refer to the physical
documents when doing the developing, there would be no problem with using
AT&T's ideas, concepts, know-how or technologies.
I retired from IBM after 27 years. Every year I read an updated business ethics
document that described my obligations and IBM's obligations with respect to
intellectual property, and signed a document saying that I had reviewed it, and
understood.
IBM's approach to an agreement such as this is the "Clean room".
One set of employees are allowed to look at the documents but not to develop the
product. A disjoint set are allowed to develop the product, but not to look at
the documents.
SCO will probably be blown away by the Clean room procedures used by IBM to
develop AIX, and will discover that IBM owns the entire product.
[ Reply to This | # ]
|
| |
| Authored by: skidrash on Saturday, October 25 2003 @ 06:18 PM EDT |
Has anyone been able to find the text of the case?
O'Connor v Boeing?
Anyway, here's my take on it.
________________
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,
_________
IBM is not asking HOW the alleged violations happened.
IBM is not asking WHO put what where.
IBM is asking what the allegations are.
THE ONLY CASE THAT SCOldera decides to cite and their spinning of the citation
is completely off the mark.
From what I've read so far about O'Connor v Boeing, the only way that citation
would support SCOldera is if O'Connor told Boeing he was injured and asked
Boeing to provide, for all the time he worked at Boeing, dates and times that
O'Connor had been injured, the names of all people who injured him and all the
things that were in the environment (machinery, chemicals, wallpaper, carpet) at
the time of each injury.
[ Reply to This | # ]
|
| |
| Authored by: sam on Saturday, October 25 2003 @ 07:06 PM EDT |
Yes folks, these are dear Darls own words on the fishing expedition. They
never had a case to begin with and they knew it. They thought IBM was going to
tell them to "come right on over and develop your case."
The following are
selected quotes:
http://www.vnunet.com/News/1141808
June 25,
2003
The next action is really discovery, where we get a chance to go in and
take a look at what has been going on at IBM.
So as we move into discovery
this will be very nice for us, because now we get to go in and talk to all their
people, their customers. We get to really shake things up and find out what
really is going on over there.
Now, by going into pre-discovery, we have
strong enough claims. We'd be fine to go to court just on what we have before
discovery.
In discovery you get to go in and investigate the things that
relate to the case, and there are a broad range of things that relate to Linux
and AIX. We will be going in with a fine-toothed comb and coming up with every
detail.
IBM has put the brakes on to try and slow things down. And to the
extent that it wants to do that, I am saying that we are prepared to go the
distance on this. But I would prefer to get this resolved and move
forward.
For example, we can audit IBM customers. SCO has audit rights on
its customers. The reality is that we are going into discovery right now and
that might be the vehicle to be able to investigate what we need there anyway.
Those guys know what is going to come out in discovery, and you hear a lot
of rumours on the street that they are going to buy us out.
Well, I bet
that's exactly what they want to do. The last thing they want to hear is the
testimony that is going to come out.
It's a question of what form it takes -
the form of settlement - if it goes all the way to litigation.
[ Reply to This | # ]
|
| |
| Authored by: AdamBaker on Saturday, October 25 2003 @ 07:10 PM EDT |
SCO has asked IBM to provide all the code it has ever donated to
Linux. It makes a big fuss about their failure to do that. Why, the nerve of IBM
asking SCO to reveal what trade secrets it has allegedly violated. IBM is
saying, you can't just go fishing. Tell us what you think we've done wrong and
we will respond. And SCO says, we want to go fishing.
If this
was all SCO were asking for it would be too much - they need to have some reason
to have launched the case in the first place but they are asking for more than
that - "All contributions made without confidentiality restrictions by IBM or
anyone under its control ... to ... or any other entity" everything that any
part of IBM has ever released without confidentiality restrictions in the 100 or
so years IBM has been around. IBM better start by supplying every patent IBM has
ever filed as SCO have admitted they don't know how to look that up. [ Reply to This | # ]
|
| |
| Authored by: gumout on Saturday, October 25 2003 @ 07:12 PM EDT |
PJ says:
If they look at their own Exhibit C, attached to their own Complaint, they will
find that by means of this Side Letter, IBM was given the right to develop
products and services "employing ideas, concepts, know-how, or techniques
relating to data processing embodied in SOFTWARE PRODUCTS...provided that the
LICENSEE shall not copy any code from such SOFTWARE PRODUCTS...and employees of
LICENSEE shall not refer to the physical documents and materials compromising
SOFTWARE PRODUCTIONS..."
See the "data processing" reference? This is without a doubt
referring to userland application code running at ring 3 and not privileged
operating system code running in ring 0. Examples would be SQL database queries
or a word editor. In 1985 that's all computers did. No multimedia, games etc.
The "data processing" reference is unmistakable to an old-timer.
This section is not applicable to the abstraction level of of cpu instructions
processing data that simply enables the kernel to do it's job.
---
First you get to rub the turpentine on the tiger's ass... then it's the tiger
turn.[ Reply to This | # ]
|
| |
| Authored by: mikeca on Saturday, October 25 2003 @ 07:32 PM EDT |
In the 1980's Berkeley required you to get a license from AT&T to use BSD
UNIX, because BSD UNIX was based on AT&T UNIX. This is presumably why
Sequent got a AT&T UNIX license in 1985.[ Reply to This | # ]
|
| |
| Authored by: webster on Saturday, October 25 2003 @ 09:33 PM EDT |
When parties can't settle things by themselves one goes to court and they then
try and force their position on the other party. It is a costly process and it
is often wise to settle to avoid an expensive fight with the risk of further
losses if one loses. A determined litigant with a deep pocket can even finance
appeals which lengthen the process. The process is dynamic and cases may settle
at any time.
The judge is now being asked to resolve a discovery dispute.
Judges are human. Their desk is in an open room with everything recorded. His
thoughts, character, strengths and weaknesses are daily on display. He may be
brilliant or an embarrassment to the bench. He may have been dumped on the
bench by some law firm or earned his way up through a prosecutors office with a
stellar record and experience. He has a lot of cases, sometimes many in one
day. He may have a law clerk or two and a secretary. Unfortunately in
litigation he has to feel like a bargaining chip. No one wants a trial, not the
parties, not the judge. At a trial something bad might happen. Both parties
hope the other party will accept their settlement offer. As the matter
progresses and get closer to trial that position changes.
Some judges are reluctant to do anything dispositive. Get the thing to trial if
they do not settle. They do not want to favor one side or the other. They also
might have their own sympathies which causes them to favor a party. If it gets
to trial, then it is over. Appeals are unlikely, but years away if undertaken.
The judge does not know who is wrong. He does not even know much about the
case. If he is to spend the time and intellectual capital necessary to fathom
the discovery and other issues, he must read the pleadings and do his own
research not trusting the parties representations. He can not even trust the
facts presented by the parties. So the judge can not be sure what the facts
are. The same with the issues. Parties will always stress or make up the
issues that are favorable to them. As those who follow Groklaw can imagine,
this is a lot of hard work. Then suppose he were to do all this work and find
out on the morning of the hearing that the parties had settled. Or he makes his
decision and the parties settle months later. His work may have been a factor,
but probably no more than the fact of the suit itself.
So the Judge's orders on the discovery issue will tell us many things. If he
comes down on both parties, he doesn't understand and IBM beware. If he tells
SCO to specify the Code and limits their claims to the code spacified, their
game is up.[ Reply to This | # ]
|
| |
| Authored by: Sunny Penguin on Saturday, October 25 2003 @ 09:46 PM EDT |
The CRN.com
Article
At the start of SCO Forum 2003, executives pointed to
the improved
financial condition of the Lindon, Utah, company and its
increasingly
successful efforts to revive Unixware and OpenServer. These
include
plans to debut in late 2004 a major upgrade of OpenServer
being
developed as part of Project "Legend" and a major upgrade of UnixWare
for
64-bit computing that will based on a new System V Release 6
code
base and SCOx Web
services
platform.
I thought SCO fired all programmers.
Can SCO
develope a "new" OS with 350 employees world wide?
Where, oh where, will
they steal it?
[ Reply to This | # ]
|
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| Authored by: Anonymous on Saturday, October 25 2003 @ 10:01 PM EDT |
Isn't this an awfully risky maneuver on SCO's part? Originally they were
saying that IBM 1) stole Unixware code during the Monterey project and gave it
to linux 2) gave linux SVR4 code 3) gave linux AIX derivative code. Now they
have dropped the first two claims. That means that once the judge rules that
the contract does not give them rights to the derivative code, then poof, SCO
suddenly no longer has any case at all.
Why would they put themselves in such a weak position? But in any case, someone
mentioned above that the judge may have to rule on the derivative rights claim
in order to decide on SCO's reply to IBM's motion to compel. In that case, it
may be all over really soon (except, or course, for the countersuit). [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 01:29 AM EST |
There's only one, very bad thing - these slime at SCOX and Canopy are going to
ride the tiger as far as they can, then jump off with large amounts of cash.
Shareholders, OSS community, IBM, whoever, be damned. Their attitude is going
to be "screw you, Jack, I've got mine," and then they'll be gone
to Aruba.
We'll be jumping up and down about what a farce it all was, but the fact
remains: The slime get richer, and all we got was entertainment.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 01:58 AM EST |
Attention PJ
I don't want you (or IBM) to miss this
This is a repeat of an earlier post in a nested discussion:
==
SCO said they had evidence of non-literal transfers by IBM - in their slideshow
http://brucep.webfarmhosting.com/VegasSlideShow/frame.htm
Slide 22 - "Non-Literal Transfers – Methods and Concepts"
- from "From: Niels Christiansen (nchr@us.ibm.com)"[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 04:22 AM EST |
Seriously..
Every article on the sites now attracts an average of 150 comments.
It is unreasonable to expect every visitor to read all those comments.
As it stands, most visitors end up reading the first 10 to 20 top-level
comments, and maybe a couple of threads branching from one of those comments.
This statistically ensures most of the interesting posts will NOT be read by the
majority.
So yeah.. bring on a user moderation system, and make use of it in the default
view users first see.
Ideally, the moderation system should be such that it would be possible to show
no more than 50 comments on the default view, consisting of the most highly
rated comments, and of their parent comments, for context.
Hard-core followers (and priestesses) would still be able to read everything by
fidgeting with the comments control, and the rest of us would have a quicker
access to all those insightful comments hiding in there.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 05:18 AM EST |
| http://catb.org/~esr/jargon/html/F/FUD.html [ Reply to This | # ]
|
| |
| Authored by: pogson on Sunday, October 26 2003 @ 10:56 AM EST |
| "I am reluctant to accept that the circumstances surrounding the BSD
code
decision ~10 years ago which, as you said, led to a clean BSD
implementation and
a common understanding of who owned what, will be repeated
now.
... "
The only hope SCO has of winning their case is an overturning of
the BSD decision and some kind of quashing of the side letter and Amendment X.
Anything is possible in a court of law.
Personally, I think SCO will be a
dead cinder when this is over. It appears to be a last desperate act of a dying
company. It is too bad. Caldera could have changed direction at some point to
embrace Linux, but it required more vision or leadership or whatever. The new
management killed it. I do not see any way for them to recover. They have
damaged relations with both the Unix world and the Linux world. I doubt a purge,
sincere apologies, and compensation to the parties injured by SCO would leave
them with anything. Their UNIX IP is essentially worthless now because no one
wants anything to do with this company.
I suppose it is possible SCO could
sell UNIX rights before it goes under to keep UNIX alive, but who would want it
after this? IBM could end up owning it if the damages it wins exceed SCO's other
resources. SUN will cling to UNIX for a time. Linux is growing and advancing so
fast there is little point to UNIX except to maintain legacy operations. Any
startups would be much better off going with Linux and old companies are
switching too. ---
A problem is an opportunity [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 02:44 PM EST |
The real fun will be later when this whole, sordid affair becomes the basis for
criminal prosecution for fraudulent manipulation of SCO/Caldera stock values.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 03:30 PM EST |
I just noticed that 10/24 was the latest deadline for it.
I assume we don't know yet if they filed anything on Friday, but I hope we will
soon. Hopefully it's not another motion to extend time, in which case I think
we will finally get to see if SCO has the gall to claim that the GPL is invalid
in court, not just in press.[ Reply to This | # ]
|
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| Authored by: AdamBaker on Sunday, October 26 2003 @ 06:01 PM EST |
Korbomite has recently posted this
They did, I believe, inform the
FBI to cover up their incompetence, but the SAIC had better network people than
SCUMX figured, and found out about the scam. The SAIC in the Salt Lake City
office, and the US Attorney for that District are VERY unhappy with SCUMX and
Canopy.
on Yahoo about the claimed DDoS. Has anyone else heard
this and got any corroboration?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 06:10 PM EST |
Newsgroups:
alt.suit.att-bsdi
Path:
icdoc!dds
From:
dds@doc.ic.ac.uk (Diomidis D Spinellis)
Subject:
Effort needed to implement Unix
Message-ID:
<1992Aug11.213641.27025@doc.ic.ac.uk>
Sender:
usenet@doc.ic.ac.uk
Nntp-Posting-Host:
swan.doc.ic.ac.uk
Organization:
Department of Computing, Imperial College, University of London, UK.
Date:
Tue, 11 Aug 1992 21:36:41 GMT
Lines:
18
Content-Length:
729
Some have claimed that BSDI could not have implemented a free version of
Unix in the short period it took them:
"Perhaps the most important achievement of UNIX is to demonstrate
that a powerful operating system for interactive use need not be
expensive either in equipment or in human effort: UNIX can run on
hardware costing as little as $40,000, and less than two man-years
were spent on the main system software."
Dennis M. Ritchie and Ken Thompson
The UNIX Time-Sharing System
Communications of the ACM 17(7) July 1974
Diomidis
--
Diomidis Spinellis Internet: UUCP: ...!uknet!icdoc!dds
Department of Computing, Imperial College, London SW7 #include
"/dev/tty"[ Reply to This | # ]
|
| |
| Authored by: NZheretic on Sunday, October 26 2003 @ 06:28 PM EST |
| 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."
That information is already publicly available directly from
IBMs own website ...
http://www-124.ibm.com/linux/patche
s/
... and also from the publicly archived mail lists ...
http://marc.theaimsgroup.com/ ( as well
as other sites )...
... that show all the contributions from IBM as well as
employess of Caldera and the old SCO itself.
The SCO Group have more that
enough public available information to make specific claims against IBM. In my
opinion, that the SCO group cannot make a case with the existing publicly
available information, shows how unsubstantia the SCO claims are. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 08:13 PM EST |
I have been thinking about why SCO thinks they can revoke IBM's license, when
it expressly is "irrevokable" and "perpetual".
They have advanced a number of theories:
1. Advanced by Blake Stowell in theregister.co.uk "irrevokable"
would be stupid
IANAL, my opinion: So what, even if stupid, if SCO's predicessors (old SCO)
signed such a license, that's the way it is, stupid or not.
2. Advanced by Blake Stowell in theregister.co.uk (specifically he was talking
about SGI, but I guess you might think he was also talking about IBM):
"irrevokable doesn't appear in [SGI's] contract"
IANAL, my opinion: Well it does for IBM. The lawsuit is with IBM. Not worth
further comment
3. Advanced by Chris Sontag in CNET: the "enjoin" etc. phraseology
means revoke is an option.
IANAL, my opinion: I personally do not think it does. The more likely
"enjoin" means they can require IBM to comply with license terms (if
breached, whether breached or not is a separate argument in itself), their
remedy is therefore not to revoke but to force compliance.
4. Advanced in SCO slide show (presumably by Heise). Use of work beyond scope of
license is a "nullity" reference to some court case.
** This one would be a good research project, if anybody wants to volunteer **
IANAL, my opinion: I haven't examined this in detail, but I would have though
if the license specifies remedies ("enjoin" etc), you have to work
within the available remedies in the event of a breach. I haven't read the
case, and maybe I'm assuming too much, but I'd have thought it likely the
facts of the case referenced are different. If this were not the case, then
"irrevokable" would have absolutely no legal meaning (so why include
it, and expand on it with the "enjoin" language in the contract?).
Another problem with this theory, is SCO seems to be at least partiallly working
within the framework of the various contracts, letters, etc., if breach of
license meant it was a "nullity", then wouldn't it be a
"nullity" immediately, without the 100 days notice, etc.
Of course there are other issues too:
1. Is there a breach? IBM contends there wasn't
2. Does SCO have to tell IBM the details of the breach ("good
faith"). IBM contends they do.
3. How does Novell's waiver according to the three-way agreement fit it. I
haven't seen any explanation from SCO of why they can disregard this.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 08:42 PM EST |
Thank you! Your analysis is great. This fiasco makes one wonder if SCO really
believes that judges are stupid. It also makes one wonder if SCO's lawyers
really understand discovery rules or contract law. The evidence is otherwise.
Thanks again.
Jim.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 09:21 PM EST |
IANAL, this is just my ill-informed opinion
There has been much talk of how there is a "Dynix/PTX" license, and
an "AIX" license
I believe this is INCORRECT, and if you fall for it, you are in so-called
SCOspeak land.
AFAIK, none of the contracts name "AIX" or "Dynix/PTX"
They simply name "IBM" and "Sequent", and their use of
the AT&T software / AT&T source-code.
IBM have whatever rights they have with the AT&T software / AT&T
source-code, regardless of whether they acquired additional Sequent code from
Sequent, in 1999.
And as far as I know, all the Linux issues at the stake (alleged breaches if you
like), are after IBM acquired Sequent.
There is an interesting corollary to this:
If IBM have an irrevokable license to use the AT&T code (etc), then Sequent,
as a unit of IBM, do too [AFAIK there is nothing in the IBM contracts, that say
it doesn't apply to divisions of IBM that IBM might have acquired]
On the other hand if IBM's license was revokable, I'm uncertain whether it
would require a separate act of revokation for Sequent (and any other IBM
subsiduaries with AT&T licenses) to get them all. i.e. If SCO could revoke
the IBM contract only, IBM might have an additional independent right to use the
AT&T code, thru the Sequent (or any other IBM subsiduaries) contracts.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, October 26 2003 @ 10:14 PM EST |
<I>"[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." </I>
<BR><BR>
They cite no case law suggesting it is a general restriction.
<BR><BR>
They cite no contract clause saying it is a specific restriction of IBM's
contracts (and IBM's contracts could be read to suggest this is permissible
provided the original code does not appear in the new version).
<BR><BR>
Oh? And BSD. Isn't that exactly what BSD did. Rewrite the code - such that it
did not require the original code - and so that they could sell or give it away?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, October 27 2003 @ 12:27 AM EST |
| There's one detail that bothers me. IBM on 10/03/03 filed their "Motion to
Compel Discovery".
SCO on 10/17/03 (minutes before the 14 days timeout expired)
filed their "Motion by SCO Grp to extend time to 10/24/03 for pla to resp to
mot/compel".
IBM on 10/20/03 filed their "Memorandum in opposition to motion to
extend time to 10/24/03 for pla to resp to mot/compel".
SCO then on 10/23/03
filed their "Memorandum of Law in Opposition to IBM's Motion to Compel
Discovery".
The judge didnt rule on any of these motions, according to the
docket data.
What was all this fuss about? Why did SCO get to file on the
23rd instead of the 17th? Why did they go to all this trouble: just to file 1
day later?
If SCO's filing on the 23rd is procedurally correct, why was it
such a big issue for them to file on the 24th? Or did SCO use the motion on the
17th as a procedural trick to automatically get a 7 day extension? Or did they
consciously commit a procedural error, in the hope of the judge granting their
motion and thus making their filing legal? Is their current reply to be counted
as a valid reply or not?
Or was this just a legal maneuver by IBM to turn on
the heat on SCO by forcing them to reply timely (and accusing SCO of delay
tactics and stonewalling, and thus forcing SCO to reply to those allegations in
detail)?
(I personally have no doubt that SCO is stalling and stonewalling,
but I'm wondering what impression the judge will get from these filings. Also, I
still dont understand the main purpose of these filings, as basically everything
happened as SCO wanted - without the judge approving or disapproving it.) [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, October 27 2003 @ 12:43 AM EST |
The last sentence of IBM's motion opposing enlargement of time is interesting.
They say that they are concerned that SCO has not conducted itself
apropriately.
This is carefully worded, but slightly open-ended sentence
I wonder (and don't know) if they are merely referring to
"appropriately" within the litigation procedures, or perhaps in a
wider context.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, October 27 2003 @ 12:54 AM EST |
Interesting comment from
somebody who attended roadshow
Don't know if above link will work
look for post by Don Williams (dwilli10@san.rr.com) to comp.unix.sco.misc at
2003-10-24 00:11:34 PST (groups.google.com is your friend)
The
allegation here, though allegedly from "Others there, not SCO folks" is code was
copied into Linux from OpenServer. There is also some comments on Berkeley and
the licensing program.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, October 27 2003 @ 01:21 AM EST |
| I thought I'd post something outside of a thread. It always looks like I'm
arguing with someone and I'm really not. I use others as a sounding board and I
try to follow-up on an idea if I think I've done a bad job of communicating it.
There are a lot of good writers here at Groklaw, but I'm not one of them. I
confess all of my ambitions lie somewhere else. I'd like some help explaining
the things that are contained in this post. If you follow my comments you know
about my previous postings regarding source code and my thoughts on it simply
being a form of symbolic speech. We all know that Berkeley and some of the other
versions of Unix were publicly funded research versions. BSD is used in
practically every commercial flavor of Unix today. I've always felt that USL
tried to "close the barn door after the horses were already out" on any of their
unpatented trade secrets or Unix branding schemes. USL v BSDi should have been
taken up by DOJ or FTC as another illegal product tying deal from an old
mainline monopoly. AT&T and USL never cared about licensees sharing code and
they always viewed BSD as a good thing. This is: until it didn't include the
prospect of any more $200,000 dollar SVR4 source code licenses. Perhaps
after forty years of failed attempts to reign-in AT&T's anticompetitive
behavior by our executive, legislative, and judicial branches of government,
there was too much combat fatigue to take on an issue as small, or unimportant
as Unix.
The notion that USL owned everyone else's ideas and improvements -
even after the other "licensees had intentionally placed them into a public pool
for all to share equally - was practically criminal. They had offered Unix "as
is" for many years. It came with no bug fixes, porting, or customer support. It
borrowed most of it's ideas and concepts from earlier operating systems. The
public took Unix and made it their own by porting, polishing, and perfecting it.
Many taxpayer supported institutions and agencies were involved in BSD
development. The same is true today with regard to Linux development. We have
all paid a price for these things. SCO is attempting to make that price a
"fruitless exchange" as the US Supreme Court once put it. Unix and Linux are
part of our critical infrastructure. They are essential public facilities that
don't belong to AT&T or it's successors.
Bonito Boats stands for the
proposition that unpatented ideas, concepts, and know-how belong to the public
once they have been placed before it. That means that we own BSD and Linux and
they can never be taken back. SCO keeps floating plans to license commercial or
government use of Linux. Those plans are floating in a "Bonito Boat". SCO can't,
or won't, show any copyrighted code that they actually own. In fact, they
publicly admit that the copyrights for the code belong to others - and not SCO.
They claim trade secret protection for every idea or concept in System V, AIX,
or Dynix/ptx "without limitation". They know full well that claim simply can't
be true. The agreements themselves state that they contain no implicit patent
licenses. SCO made no claims of deception when these patents were issued. IBM
purchased Sequent and these patents were not an issue then either. SCO could
have raised any concerns at the time with either the US or EC regulators who
reviewed the proposed IBM/Sequent merger. The complete details of every patent
are always published and made available by the US Patent and Trademark Office.
All of the technologies SCO is claiming in discovery seem to be patented -
almost without exception. Those concepts, methods and know-how can't be trade
secrets. Once they are published, they can no longer be held in confidence as
part of a relationship of trust. Bonito Boats is helpful in regad to the BSD
situation. It simply lays to rest SCO's claims concerning all of the other
intellectual property that we rightfully own. Those claims violate our sense of
fair play and give rise to our sense of outrage concerning SCO's claims. These
are things that make us all feel like we are simply retrying the issues in the
BSD case. Here are some snippets from the Supreme Court's ruling in Bonito
Boats:
"We have since reaffirmed the pragmatic approach which
Kewanee takes to the pre-emption of state laws dealing with the protection of
intellectual property... At the same time, we have consistently reiterated the
teaching of Sears and Compco that ideas once placed before the public without
the protection of a valid patent are subject to appropriation without
significant restraint."
"We have long held that after the expiration of a
federal patent, the subject matter of the patent passes to the free use of the
public as a matter of federal law... Where the public has paid the
congressionally mandated price for disclosure, the States may not render the
exchange fruitless by offering patent-like protection to the subject matter of
the expired patent."
"In our decisions in Sears, Roebuck & Co. v.
Stiffel Co. . . . and Compco Corp. v. Day-Brite Lighting, Inc., . . . we found
that publicly known design and utilitarian ideas which were unprotected by
patent occupied much the same position as the subject matter of an expired
patent"
The Open Group's specifications are a good example of
utilitarian ideas, and certainly everything ever published in books like The
Magic Garden Explained, or UNIX Internals: The New Frontiers. The source code
for Linux, any of the BSD's, or the ancient Unix source code. They are all fair
pickings for unpatented ideas, concepts, methods, public domain code, and etc.
SCO can hardly claim all of that is their trade secret "without exception". In
this case, IBM, a publicly owned company, has paid $810 million and
generously donated permission to use the RCU, NUMA, and etc. patents under a
General "Public" License. SCO is destroying that company and shareholder
investment in "goodwill" and talking trash about indemnification. Here is what
the court says about that sort of intent on IBM's part. The same rational
applies, patents notwithstanding:
"At the heart of Sears and Compco is
the conclusion that the efficient operation of the federal patent system depends
upon substantially free trade in publicly known, unpatented design and
utilitarian conceptions... While, as noted above, our decisions since Sears
have taken a decidedly less rigid view of the scope of federal pre-emption under
the patent laws, ... we believe that the Sears Court correctly concluded that
the States may not offer patent-like protection to intellectual creations which
would otherwise remain unprotected as a matter of federal law... A state law
that substantially interferes with the enjoyment of an unpatented utilitarian or
design conception which has been freely disclosed by its author to the public at
large impermissibly contravenes the ultimate goal of public disclosure and use
which is the centerpiece of federal patent policy."
That last part
ought to be added to the header and footer of every court document in SCO v IBM.
I like to think of our open source community as one engaged in a conversation.
The code is after all just symbolic speech. An author (IBM) has just freely
disclosed to the public at large an answer to some of the problems we have been
troubling ourselves with...Then SCO bursts in and impermissibly contravenes.
They interrupt the conversation and they simply won't shut up. They have already
been compensated once for their license extortion, and now they want more. This
is obviously seller's remorse, because the last time they promised NO ADDITION
ROYALTIES.
In answering the IBM motion SCO claims that they have a solid
set of claims without regard to the trade secret issue. That's all well and
good, because they are talking about patents that were published years ago by
the USPTO, not IBM. Those certainly are no longer secrets. I've pointed out
before that every AT&T licensee has the same clause that allows borrowing
from the modified sources of the other licensees. IBM owns the patents, has the
copyrights too, and has always had a license from AT&T that said:
"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.
Note that undefined bit
about "related to data processing". Even if you don't know what it means, you
can be sure it doesn't include the use of any AT&T patents that are
unrelated to or not embodied in software products. The first clause of section
7.01 says there are no implicit patent licenses herein. But immediately
following that clause, AT&T is explicitly "opening their kimono" and
allowing use of all their patents in IBM's product. Well, that bit about
"related to data processing" concepts, and etc. makes a little more sense when
viewed in that light. This is a license for software concepts, or perhaps
hardware-bound concepts (like NUMA) that are related to data processing and
embodied in software. It cannot be a license for anything less, anything else,
or anything more.
"The same cannot be said of the Florida statute at
issue here, which offers protection beyond that available under the law of
unfair competition or trade secret, without any showing of consumer confusion,
or breach of trust or secrecy."
It's up to SCO to explain how IBM has
breached a trust or competed unfairly by promising to transfer published
concepts and methods it owns to Linux, when SCO itself has done exactly the same
things, and sometimes has even partnered with IBM in doing such things.
The
notion that IBM has an obligation to preserve the value of AIX is incorrect. IBM
can give AIX away for free under the terms of this license and pay no additional
royalties.
AT&T, SUN, UC Berkeley, and SCO have all given away free versions
of their products over the years for the cost of the media or a nominal
administrative fee. If IBM chose to the same they would simply be following in a
long tradition. SCO continues to give away free versions of the very same code
in question in this case themselves. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, October 27 2003 @ 01:24 AM EST |
Would this be a fair analogy?
Plaintiff: You stole one of our secrets and gave it away
Defendant: We don't think we stole anything. What are you alleging we stole?
Plaintiff: Here is a book of everything. We don't know where, but it's in
there somewhere.
Defendant: That's not good enough. What specifically are you alleging we
stole?
Plaintiff: Give us a list of everything, secret or not, that you've ever given
away to anybody, ever. Then we'll say. And why are haven't you give us a list
of everything that you ever gave away?[ Reply to This | # ]
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| Authored by: Anonymous on Monday, October 27 2003 @ 04:26 AM EST |
| A further piece of the puzzle:
IBM requested SCO to show the alleged
trade-secrets and proprietary/confidential information SCO alleges, in its
discovery request.
SCO replied by saying "trade secrets are not the
gravaman(sp) of this complaint".
The beef seems to be the following: IBM
found strong precedents that compels SCO to identify each and every trade secret
violation in detail. SCO has not done so and in fact explicitly refuses to do so
and almost explicitly admits it has no proof of trade secret
misappropriation.
This still leaves open the question of
"proprietary/confidential information" as covered by the contract - but this
begs the question, can such a category of IP exist, which by SCO's own admission
is not a trade secret? [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, October 30 2003 @ 01:05 PM EST |
I hope IBM realise that they can give SCO all of the code they have ever
contributed to Linux... it's very easy; simply add a comment to every file
currently in the Linux source tree that says "IBM was here", then
contribute every file in the source tree to SCO.
Or even better, a copy of the master version control repository.
SCO can't then complain that IBM haven't given them all of the code...
they have. Of course, they aren't any better off, because they still have to
go through every file themselves to find-out what they feel IBM must
have contributed.
:-)
[ Reply to This | # ]
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