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SCO'S MEMORANDUM IN OPPOSITION TO IBM'S 2nd MOTION TO COMPEL DISCOVERY as text. |
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Wednesday, November 26 2003 @ 09:46 PM EST
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Here is PLAINTIFF SCO'S MEMORANDUM IN OPPOSITION TO IBM'S SECOND
MOTION TO COMPEL DISCOVERY as text. Be aware that the original is missing footnote 5. It jumps from 4 to 6. Just letting you know so you won't think it's a mistake on our part. I want to thank everyone who worked hard to get this ready, especially Palle Raabjerg , Steve Martin (a little bird says his wife helped too, so thanks to Mrs. Martin too), and madbad rabbit. As always, it's a community effort. PDF is here.
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Brent O. Hatch (5715) HATCH, JAMES &
DODGE [address, phone, etc.]
Stephen N. Zack (admitted pro hac vice) Mark J.
Heise (admitted pro hac vice) David K. Markarian (admitted pro hac
vice) BOIES, SHILLER & FLEXNER LLP [address, phone, etc.]
Attorneys for Plaintiff
IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, Plaintiff, v. INTERNATIONAL
BUSINESS MACHINES CORPORATION, Defendant
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PLAINTIFF SCO'S MEMORANDUM IN OPPOSITION TO IBM'S SECOND
MOTION TO COMPEL DISCOVERY Case No.
2:03CV0294DAK
Honorable Dale A. Kimball Magistrate Judge
Brooke C. Wells
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Plaintiff, The SCO Group, Inc. ("SCO"), files its
Memorandum of Law in Opposition to Defendant International Business
Machines Corporation's ("IBM") Second Motion to Compel
Discovery and in support states:
I. IBM Failed To Meet and Confer in Good Faith Before Filing
its Motion to Compel
IBM's motion to compel fails to comply with this Court's strict
procedural requirement of conferring in good faith to attempt to
resolve the discovery dispute without court intervention. Rule
37-1(a) of this Court's local rules
specifically requires reasonable efforts to reach agreement with the
opposing party on the matters set forth in the motion, and to set
forth a specific recitation of time, date
and place of, and the identity of all counsel involved in such
efforts. Without that, "the court will not entertain any
discovery motion." IBM has ignores this procedural requirement.
IBM, according to its "Certificate of Compliance with Rule
37(a)(a)(A)", attached hereto as Appendix "A", admits
that it has never discussed Interrogatories 12 and 13 with
SCO's counsel. Specifically, IBM states that "[c]ounsel
for the parties did not specifically discuss Interrogatory nos. 12
and 13 because, at that time, SCO had not yet answered these
interrogatories." Id. at pp.2-3. Having never
discussed the two interrogatories, it is clear that no effort to
resolve the issue occurred before IBM filed its second motion to
compel. Based on the lack of compliance, IBM's motion should not be
entertained by this court. See Rule 37-1(a).
IBM seeks to excuse its lack of compliance with the Rule by
claiming that consultation occurred long ago with regard to three
interrogatory answers from a prior set of discovery
(Defendant's First Set of Interrogatories) that were incorporated in
the latest answers. IBM's attempt to bootstrap failed efforts to
resolve an earlier discovery dispute as purported good faith efforts
to resolve this subsequent discovery issue should be
rejected.
First, since the time of those earlier discussions, SCO has
voluntarily supplemented and revised its prior answers to the
relevant interrogatories. As a result, IBM's concerns or criticisms
directed to the original answers to the earlier
interrogatories cannot be considered a good faith conference when the
answers to Interrogatories 12 and 13 incorporate SCO's
revised and supplemental responses to the earlier
interrogatories.
Second, IBM's instant motion to compel raises issues beyond
interrogatories 12 and 13 of Defendant's Second Set of
Interrogatories, for which IBM also did not comply with the meet
confer provisions of DUCivR 37-1. For example, IBM's motion also
raises SCO's purported "fail[ure] to produce to IBM important
categories of documents that it could have produced months ago."
Id. at p. 2, attached as Appendix "A". Although not
referenced in IBM's certificate, a conversation took place in which
each side asked for the production of certain documents on a more
expedited basis. The top of both parties' list of documents desired
from the other was the production of source
code. Although SCO had produced millions of lines of requested source
code, IBM complained of the format in which it had received code.
Despite the fact that IBM received code in exactly the format it
requested (at great expense to SCO), SCO also agreed to provide the
code in the newly requested format. In fact, since the time of that
request, SCO has sent scores of CDs containing the requested source
code i the format requested by IBM. In return, IBM has yet to provide
a single line of requested source code.
SCO has provided the requested information. When IBM has specified
additional information sought or asked for already produced
information in a different format, SCO has consistently agreed to
supplement its discovery and, in fact, has supplemented its
discovery. IBM's second motion to compel is procedurally
defective based upon the wholesale failure to comply with this
Court's Rule 37-1(a) requirement and can be denied on that basis
alone. Beyond these procedural infirmities,
as discussed below, IBM's motion to compel is substantively flawed
and can also be denied based on that basis.
II. SCO's Ability to Answer Certain Discovery Has Been Thwarted
By IBM's Failure to Provide Source Code in Response
to Discovery Requests
To understand why certain portions of IBM's Interrogatories 12 and
13 are objectionable and why SCO's current responses are entirely
adequate, the questions must be placed in context. As detailed in
SCO's Complaint, this case essentially arises from the contractual
relationship between SCO and IBM and Sequent (now part of IBM and
hereinafter collectively referred to as
IBM), which were1 licensees of SCO's UNIX System V source
code ("UNIX"). IBM utilized its license for UNIX to develop
AIX, which is IBM's "own version of UNIX," and to develop
Dynix, which is Sequent's version of UNIX. As a licensee, IBM agreed
to certain restrictions upon its use of UNIX, most notably that
modifications and derivatives thereof (i.e. AIX and Dynix) would be
used solely for IBM's internal business
purposes, would be maintained in confidence, and would not be
disposed of in whole or in part2. IBM has publicly
admitted that contrary to these clear limitations
on the use of UNIX, AIX and Dynix, it contributed AIX and Dynix into
Linux, the free and publicly available operating system that IBM has
heavily supported, both financially and technologically. By doing so,
IBM has unquestionably breached its many contractual obligations with
SCO. In contravention of its license, IBM has embarked upon a plan to
support, strengthen, and improve Linux. IBM's efforts include its
contribution of confidential and protected materials into the Linux
2.4 and 2.5 kernels (in lay terms, the "brain" of the
operating system) to make money by providing support and services to
corporate users of Linux. IBM's plan not only allows it to generate
billions in Linux related revenues from providing support and
services to users of Linux, but also to weaken the position of other
competitors such as SCO, which provide mission critical operating
systems to the world's largest corporations.
Against this backdrop, SCO provided detailed interrogatory answers
that specify the source code files that contain the information that
IBM and Sequent agreed to maintain as confidential and proprietary.
Stripped of legalese, the two interrogatories in question here
request SCO to identify:
All source code and other material
in Linux to which SCO has rights, and how such material is derived
from UNIX, and
Whether and how IBM has infringed
those rights, and
Whether SCO itself has distributed the code or material SCO
claims IBM has infringed.
SCO made two entirely appropriate objections to the
interrogatories and then otherwise responded.
Largely because this is a case arising out of IBM's
misconduct, SCO objected to identifying materials in Linux in which
SCO has separate rights unrelated to IBM. For example, IBM has
essentially claimed that SCO has shown third parties IBM's code
contributions to Linux that SCO claims was placed in Linux in
violation of its rights. To the contrary, it has been widely reported
that such revealed code was placed in Linux not by IBM, but by
another company, SGI. SCO need not produce SGI code that SGI placed
in violation of its licenses with SCO. Such
information is entirely unrelated to IBM's violations of its
particular license agreements.
With the question properly framed, SCO's revised and supplemented
response to Interrogatory 1 fully answers the question to the best of
SCO's ability at this time.3 The revised and supplemental
answers are attached hereto as Appendix "B". Without
repeating the entire 16 page answer, SCO more than adequately
identifies offending IBM materials in Linux.
The other objection raised by SCO that necessarily limited its
response is IBM's failure to timely produce documents More detailed
answers to these questions lie, in large part, in the documents,
code, and other materials developed by IBM and Sequent, which IBM and
Sequent agreed would be kept confidential, and which IBM has yet to
produce. As a result, the full range of what IBM illegally
contributed and how it did so are known only to IBM, and SCO remains
unable to craft further responses until SCO obtains that information
from IBM.
A brief example of documents requested by SCO on June 24, 2003,
which are yet to be produced (and are therefore outstanding for four
months), highlight the difficulties caused by IBM failing to timely
produce documents in a technically involved
case such as this one:
All versions or iterations of AIX
source code, modifications, methods and/or derivative works from May
1999 to the present.
All versions or iterations of
Sequent Dynix source code, modifications, methods and/or derivative
works from January 1999 to the present.
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.
All documents concerning any UNIX
source code, derivative works, modifications or methods disclosed by
IBM to any third party or to the public.
All documents concerning any AIX
source code, derivative works, modifications or methods disclosed by
IBM to any third party or to the public.
All documents concerning any
Sequent Dynix source code, derivative works, modifications or
methods disclosed by IBM to any third party or to the public.
All documents concerning
any UNIX source code, derivative works, modifications or methods
found in Linux, open source, or the public domain.
All documents concerning any AIX
source code, derivative works, modifications or methods found in
Linux, open source, or the public domain.
All documents concerning any
Sequent Dynix source code, derivative
works, modifications or methods found in Linux, open source, or the
public domain.
All documents concerning any
contributions to Linux or to open source made by IBM and/or Sequent.
All documents concerning export
controls for any UNIX source code, derivative works, modifications
or methods contributed to open source, including all portions of AIX
and Dynix and their derivative works, modifications, or methods.
All documents concerning IBM's contributions to development
of the 2.4 and 2.5 Linux Kernel.4
Meaningful supplemental interrogatory answers can only follow
IBM's production of the foregoing materials and the subsequent
careful and time consuming review of the documents by counsel and
qualified experts. SCO has already
identified nearly 600 files of code improperly contributed by IBM.
IBM's refusal to respond to properly put discovery requests to
identify its own contributions to Linux thwarts
SCO's ability to determine whether further supplementation is
necessary. When IBM finally responds o the outstanding discovery
requests, SCO will have the critical information it needs to identify
any additional offending violations by IBM.
Beyond the propriety of the foregoing objections, by adopting its
revised and supplemental answers to Interrogatories 1, 2 and 4, SCO's
substantive answers fairly respond to Interrogatories 12 and 13.
IBM's representations to this Court about the perceived deficiencies
in SCO's answers arise from IBM's attachment of, and apparent
reliance upon, SCO's initial response to IBM's First
Set of Interrogatories and Request for Production of Documents. SCO
did not incorporate those initial answers. Rather, as noted above,
SCO voluntarily revised and supplemented its answers and incorporated
those supplemental answers in response to Interrogatories 12 and 13.
SCO's supplemental responses, which have been ignored by IBM, are
attached hereto as Appendix "B".
SCO's revised and supplemental responses (Appendix "B")
to interrogatories 1, 2 and 4, which are adopted in response to
Interrogatories 12 and 13, serve to inform IBM of:
What trade secrets and/or
confidential and proprietary information SCO alleges IBM
misappropriated;
The information SCO alleges IBM
was to keep secret and confidential and did not;
The methods used by IBM to create
derivative works based on UNIX;
The identity of entities and
individuals having had access to confidential information; and
How and when IBM infringed and misappropriated SCO's trade
secrets and/or confidential and proprietary information.
The two dozen pages of information setting forth this information
in these interrogatory responses is more than adequate compliance
with SCO's discovery obligations in light of IBM's lack of
concomitant compliance with its own discovery obligations.
III. SCO Has Produced Documents and Continues to Produce
Requested Documents
IBM's motion abruptly shifts focus to complain
about a perceived deficiency in SCO's track record of document
production. This portion of the motion is likewise without basis. SCO
has produced over one hundred CDs containing literally millions of
pages of documents to IBM over the past several months and has done
so pursuant to documented agreements to provide the massive
production of documents on an ongoing and "rolling" basis.
Moreover, unlike IBM, SCO has been
producing documents as they are kept in the ordinary course of
business.
When the actual state of production is viewed, it becomes readily
apparent that SCO is taking its discovery obligations very seriously
and in compliance with the Federal Rules of
Civil Procedure. For example, IBM claims that the nearly 1 million
pages of source code already produced by SCO were produced in an
"unusable" form -- essentially
because it was in human readable form, rather than in machine
readable form. This statement, however, ignores that IBM's precise
request in this regard was for "human readable code". See
Defendant IBM's First Set of Interrogatories and First Request for
Production of Documents, page 20, paragraph 18, attached as Appendix
"C". Specifically, the instructions in IBM's discovery
requests dictate that "source code shall mean the human readable
form of a computer program written in the
original and preferred form for human inspection...' SCO went to
great expense to comply and produced the code in "human readable
form," i.e. paper form. After that production, IBM
changed its mind and gave SCO contrary verbal instructions. Based on
IBM's representation that it likewise was going to provide its code
in the alternative format, SCO then spent additional time and money
to provide the code as newly requested. Since that time, SCO has
produced dozens and dozens of CDs containing the source code in the
format requested by IBM. IBM, on the other hand, has yet to produce a
single line of source code in any format. By any objective standard,
SCO has clearly complied with its discovery obligations.
IBM's remaining criticisms of SCO's production likewise wither
when compared to what has actually occurred. For example, IBM's oft
repeated complaint that it has not been given access to the
improperly contributed code SCO has shown to others ignores that such
code was not IBM code, but the code improperly contributed to non-IBM
entities. Likewise, IBM's request for files for certain individuals
and for more recent source code agreements ignores that IBM was told
that such documents were next in the
rolling production after SCO first produced the source code in the
new format requested by IBM.6 That source code production
is nearly complete and it is expected that the files in question will
be produced over the course of the next few weeks. In short, SCO's
production of over 100 CDs worth of information dwarfs IBM's limited
production of 18 CDs worth of documents.
CONCLUSION
IBM has failed to comply with DUCivR 37-1 to meet and confer and
to set forth a specific recitation of time, date and place of, and
the identity of all counsel involved in such efforts. On that basis,
the motion should be denied. The motion also fails because SCO has
fully answered the interrogatories. As detailed above, before IBM
filed its motion SCO had been producing the requested documents and
continues to do so pursuant to an agreement between the parties to do
a rolling production. Additionally, IBM's own conduct has precluded
more detailed discovery responses. For the foregoing reasons, SCO
respectfully requests that this Court deny IBM's second Motion to
Compel.
DATED this 24th day of
November, 2003.
Respectfully submitted,
By:
[signature] ____________________________________ HATCH, JAMES &
DODGE, P.C. Brent O. Hatch Mark F. James
BOIES SCHILLER
& FLEXNER, LLP Stephen N. Zack Mark J. Heise David K.
Markarian
Counsel for Plaintiff/Counterclaim Defendant
1 Based upon the violations of those licensee
agreements by IBM, both companies have been
sent letters terminating their license and demanding that all source
code be returned or destroyed. IBM has
failed to do so.
2 As set forth in the Software Agreement executed
by IBM and attached to the Amended Complaint as Exhibit A, IBM
agreed, for example, that UNIX would be used solely for its own
internal business purposes (§2.01), that it would not use the
code for others or allow its use by others (§2.05), and that it
would maintain the code in confidence (§7.06). Similarly, IBM
further agreed it would not sell or
otherwise dispose of UNIX in whole or in part (§7.10). Most
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.
3 As detailed below, IBM only referred to and
attached SCO's original answers to interrogatories to its Motion to
Compel. The revised and supplemental answers greatly detail the
confidential information that IBM improperly used. This apparent
reliance upon the superseded original answers highlights the need for
a good faith conference in advance of filing a motion to compel.
4 These are just a few (of many) examples to
illustrate the point.
6 IBM makes the unfounded allegation that because
legacy licenses and related correspondence was stored on an imaging
system, the production of those documents could have occurred in July
when SCO filed its formal response to discovery. This is wrong. The
fact that the documents were on an imaging system, as opposed to in a
filing cabinet, does not mean that they
could be produced without first reviewing them for responsiveness and
for privilege. They now have been reviewed and were produced months
ago.
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Authored by: brenda banks on Wednesday, November 26 2003 @ 10:49 PM EST |
me thinks IBM'S lawyers are really going to sock it to sco for this
want to try to play games
we can show you games like you havent heard of
hehehe
---
br3n[ Reply to This | # ]
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Authored by: Dark on Wednesday, November 26 2003 @ 11:16 PM EST |
Look what SCO claims is in Appendix B: their exact claims about what's in Linux
and how it got there. Unfortunately they weren't scanned by the court :( Is it
possible for someone in Utah to go there and scan them?[ Reply to This | # ]
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Authored by: PJP on Wednesday, November 26 2003 @ 11:42 PM EST |
Here again, SCO basically says that it has no clue what IBM supposedly did to
infringe its contractual agreements with SCO. This seems strange since SCO has
the source code which it claims added to Linux, and it has the Linux source
code, so it should be able to make the determination without IBM's help.
So it seems that they are essentially saying that there is no direct transfer of
System V code into Linux (otherwise they would be able to specify what it is),
but rather that their claim concerns purely derivative works based upon System V
code (plus any other code that SCO may have provided to IBM).
As has been stared before, this looks more and more like SCO is now putting all
its eggs into the basket of derivative works - where derivative as they define
it means any new code which may have been added to their original base, even if
that code could be "standalone" in its own right and does not depend
upon SCO code ina any fundamental way.
I suppose in a way this fits in with their view of how the GPL works - that it
is a tar baby to which anything and anyone sticks if they come into contact -
seems SCO contracts are like that too.
One question for the lawyers out there - the US constitution has provisions
(Amendment V) that no-one is orced to provide evidence to incrimiate themselves.
Does this apply in civil cases too ? If so, there is a simple answer for SCO's
request for IBM to produce evidence to incrimiate itself.[ Reply to This | # ]
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Authored by: Ed Freesmeyer on Thursday, November 27 2003 @ 12:05 AM EST |
Does anyone else read this as "please incriminate yourself for us so we can have
a case" ? (this is from SCO's reiteration of documents requested on 24 June that
IBM has not answered yet) (emphasis is mine with particular emphasis on item #
7):
7. All documents concerning any UNIX source code,
derivative works, modifications or methods found in Linux, open source, or
the public domain.
8. All documents concerning any AIX source code,
derivative works, modifications or methods found in Linux, open source, or
the public domain.
9. All documents concerning any Sequent Dynix source
code, derivative works, modifications or methods found in Linux, open
source, or the public domain.
I'm not surprised that IBM
has not responded to these requests. Is IBM really expected to respond to
something like this (and does this imply self-incrimination) ?
IANAL, and do
not understand why the court or IBM have not objected to this phrasing already.
I assume line 7 is actually a mistaken reference to the SCO Sys V source code
(in the new tradition of IBM court filings) since SCO does not own "UNIX". I
can also see where IBM would have a hard time finding "UNIX" source code to
provide if this is not a mistake on SCO's part since AFIK there is no such
critter.
Happy Thanksgiving to all Yanks who celebrate this holiday - and
especially to PJ for her great work on this site.
Ed Freesmeyer
[ Reply to This | # ]
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Authored by: Thomas Frayne on Thursday, November 27 2003 @ 12:42 AM EST |
In its memorandum, SCO claims:
----------------------------------------------------
SCO's revised and supplemental responses (Appendix "B") to
interrogatories 1, 2 and 4, which are adopted in response to Interrogatories 12
and 13, serve to inform IBM of:
1. What trade secrets and/or confidential and proprietary information SCO
alleges IBM misappropriated;
2. The information SCO alleges IBM was to keep secret and confidential and
did not;
3. The methods used by IBM to create derivative works based on UNIX;
4. The identity of entities and individuals having had access to confidential
information; and
5. How and when IBM infringed and misappropriated SCO's trade secrets and/or
confidential and proprietary information.
The two dozen pages of information setting forth this information in these
interrogatory responses is more than adequate compliance with SCO's discovery
obligations in light of IBM's lack of concomitant compliance with its own
discovery obligations.
------------------------------------------------------
If SCO really did fully specify this information in Appendix B, IBM should now
have the basic information it needs: a precise statement of just what SCO claims
IBM did wrong. If not, IBM will have to respond with a clear statement of just
what is wrong with Appendix B. If we can see it, we might be able to help
writing that statement.
Where is Appendix B? Is it public? Has anyone on GrokLaw seen it?
[ Reply to This | # ]
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Authored by: Thomas Frayne on Thursday, November 27 2003 @ 01:00 AM EST |
If IBM doesn't respond to this memorandum before 12/5, perhaps the judge won't
want to hear oral arguments concerning IBM's second motion to compel on 12/5.
It might be better if IBM can produce its response quickly, especially if it can
demolish SCO's statement that Appendix B fully specifies SCO's claims against
IBM.
[ Reply to This | # ]
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Authored by: Tim Ransom on Thursday, November 27 2003 @ 01:15 AM EST |
Dashing Dave is representing Conrad Black of Hollinger, an odious gas giant with
a thesaurus who gave up his Canadian citizenship so he could wear pajamas in
public and have people call him 'Lord'.
At any rate, in an art
icle in the local paper, Boies gets characterized in an unflattering
light.
A sample:
'The case for Black will increasingly be made in
weeks to come by Boies — not an altogether promising circumstance for the
client.
Boies made his reputation with his prosecutorial duties in the
Microsoft Corp. anti-trust case. But he was unable to win Napster's fight
against the music industry. At Tyco, it was Boies who told the world about
Dennis Kozlowski's $15,000 (U.S.) umbrella stand. But the thorough audit
Tyco commissioned him to perform at the troubled firm overlooked at least
$300 million (U.S.) in accounting irregularities that later came to
light.
And it was Boies who helped bungle Al Gore's efforts to secure Florida
in 2000, by counselling him to seek recounts in only selected, heavily Democrat,
counties. The gambit played into the hands of a George W. Bush team bent on
depicting Gore as a sore loser. Most observers believe Gore would have carried
Florida in a statewide recount that was fair to both parties.'
Thanks
again,
Tim Ransom[ Reply to This | # ]
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Authored by: rjamestaylor on Thursday, November 27 2003 @ 02:24 AM EST |
..."human readable code". See Defendant IBM's First Set of
Interrogatories and First Request for Production of Documents, page 20,
paragraph 18, attached as Appendix "C". Specifically, the instructions in IBM's
discovery requests dictate that "source code shall mean the human readable form
of a computer program written in the original and preferred form for human
inspection...' SCO went to great expense to comply and produced the code in
"human readable form," i.e. paper form. When telling a lie, tell it
boldly. IBM asked for source code in original and preferred form for human
inspection. SCO performed the equivalent of sending unwrapped pennies to the
IRS: printed rheams of code. But printed pages have not been the original and
preferred method of human inspection of source code since the punch tape -- and
UNIX was a major reason behind this with its incredible text processing tools
that made on-line text processing a pleasure. Anyway, SCO is trying to play on
the courts technical ignorance by placing the emphasis on "form" instead of
"code" in IBM's request.IBM was requesting source code and not
machine code, A.K.A. compiled binary executibles. SCO's attempt at a
fast one was trying to define IBM's phrase "human readable form" to "paper form"
using the little Latin leftover "i.e." IBM was not demanding paper but it was
specifically requesting uncompiled source code. SCO knows this and is
feigning righteous indignation trying to bamboolze the court in to agreeing that
the fraternity prank styled "compliance" with IBM's request was
fulfilled. Redefining terms. Great way to win debates. I still recall the High
School CCX debate resolution from 1982: "Resolved: The US should significantly
curtail its arm sales to other countries." My debate partner and I made 3 cases:
- Banning AIM-9L missile sales to the Saudis
- Stopping the export
of torture weapons to brutal regimes (they're made in, no joke, Savage,
MN).
- Reducing the number of prosthetics exported
Yes, that last
one was our squirrel case. Our opponent would have to either argue that it was
inappropriate to reduce the availability of prothetics, esp. replacement arms
and hands, to countries without the infrastructure to properly care for their
recipients, or argue that our definition of the term "arm sales" was not
correct. Only idiots would accept our definition and start arguing our case on
the merits. More subtlely the second case was also based on a favorable
definition of torture weapons as arm sales. It was truly hard to argue against
this case unless you argued the definition, as defending torture instruments is
not easy (but, like nuclear holocaust, almost anything could be seen as
adventageous in debate context (thank you, Malthus!)). I look forward to
IBM's response! --- SCO delenda est! Salt their fields! [ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 27 2003 @ 02:41 AM EST |
I'm amazed by the 2 hugely different yardsticks being used in this
document:
On the one hand SCO doesn't need to identify "all source code and
other material in Linux to which SCO has rights, and how such material is
derived from UNIX" because not all would be attributable to IBM and it makes
this information (in their opinion) unrelated to this case. Since they don't
need to identify all, they don't identify any (!?) (it isn't that IBM is
complaining that SGI's allegedly improper contributions are missing, it is that
no evidence has been identified at all). Do they want to waste
everybody's time and have IBM resubmit their request as "all source code and
other material in Linux to which SCO has rights and SCO believes IBM has
improperly contributed, and how such material is derived from UNIX". If
rephrasing is necessary, I hope the judge can handle this at the beginning of
the hearing on the 5th and then move on to the real issue without further
delay.
On the other hand they demand that IBM produce, for example, "all
versions or iterations of AIX source code, modifications, methods and/or
derivative works from May 1999 to the present". This is bound to contain a huge
amount of information unrelated to this case (it could very well be all
unrelated to it if there's no infringement...)
It is simply too unbalanced.
I believe some of IBM's arguments are already pointing to principles of
equitability and how SCO blatantly ignores them. If anything the balance should
be tipped towards IBM, they have the right to know the details of what they're
being accused of, SCOX has no right to know anything until they can provide a
reasonable evidence of wrongdoing.
MyPersonalOpinion [ Reply to This | # ]
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Authored by: tazer on Thursday, November 27 2003 @ 04:11 AM EST |
"For example, IBM has essentially claimed that SCO has shown third parties
IBM's code contributions to Linux that SCO claims was placed in Linux in
violation of its rights. To the contrary, it has been widely reported that such
revealed code was placed in Linux not by IBM, but by another company, SGI. SCO
need not produce SGI code that SGI placed in violation of its licenses with SCO.
Such information is entirely unrelated to IBM's violations of its particular
license agreements."
Here, SCO is trying to skirt the NDA issue, by giving the SCOForum code
revelation example. Did DiDio ever dispute the authenticity of the code she saw
under the NDA? I don't think so.[ Reply to This | # ]
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Authored by: tazer on Thursday, November 27 2003 @ 04:20 AM EST |
"SCO has produced over one hundred CDs containing literally millions of
pages of documents to IBM over the past several months"
Yes your honor, SCO spent tens of thousands of dollars and countless man hours
printing out all of the computer files that were requested. Furthermore, we
kindly scanned them back into a computer and converted them into PDF files. As
you may well know, PDF is the industry standard document format for enterprise
organizations. SCO fully intends to take pictures of said CD, scan them into a
computer and convert them into PDF's, print them back out on a color laserjet,
then have a Navajo chief look at the resulting pictures, then take a picture of
the Navajo chief, scan that picture into a computer, convert it to PDF and print
it out on a 9-pin dot matrix printer. Clearly SCO has gone to great lengths to
appease IBM's requests.[ Reply to This | # ]
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Authored by: tazer on Thursday, November 27 2003 @ 04:28 AM EST |
"In short, SCO's production of over 100 CDs worth of information dwarfs
IBM's limited production of 18 CDs worth of documents."
This lawsuit was brought to you by the letter 'G' and the number '2'.[ Reply to This | # ]
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Authored by: pjcm on Thursday, November 27 2003 @ 04:35 AM EST |
#include IANAL.h
SCO at it again?
IBM's plan not only allows it
to generate billions in Linux related revenues from providing support and
services to users of Linux, but also to weaken the position of other competitors
such as SCO, which provide mission critical operating systems to the world's
largest corporations.
Does anyone know where a SCO OS is used
in a mission critical system? My thoughts are they may only be able to show
other competitors who are compromised in this way, but
I suppose it depends on
the definition of a companies mission?
Just a thought. IANAL Paddy [ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 27 2003 @ 07:14 AM EST |
I found it strange that nobody has remarked on the following:
As a
licensee, IBM agreed to certain restrictions upon its use of UNIX, most notably
that modifications and derivatives thereof (i.e. AIX and Dynix) would be used
solely for IBM's internal business purposes, would be maintained in confidence,
and would not be disposed of in whole or in part2.
IBM has publicly admitted
that contrary to these clear limitations on the use of UNIX, AIX and Dynix, it
contributed AIX and Dynix into Linux, the free and publicly available operating
system that IBM has heavily supported, both financially and
technologically.
These two sentences follow one another, I just
separated here for emphasis. Now, these "clear" limitations are forfeited by
Ammendment X, and where previously clarified to mean something else anyway. But
that is the crux of the whole SCO argument, and they couldn't have stated it
clearer if they said "Hey, all your sources are belong to us!". :-)
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 27 2003 @ 07:21 AM EST |
"All documents concerning any AIX source code, derivative works,
modifications or methods disclosed by IBM to any third party or to the
public."
The first two things that spring to mind are 'fishing expedition' and 'trade
secrets'.
Am I correct in thinking that overbroad requests for documents are considered
bad, and that this is the first time they've asked for something this broad?
In fact, has SCO ever actually mentioned that Dynix/AIX were the problems? They
just seemed to concentrate on Linux first.
If I was to put my tinfoil hat on again, I'd be slightly concerned that Linux
was a smokescreen to produce a slight 'guilt by association' if they do find
anything in AIX/Dynix that can be argued in court.
D[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 27 2003 @ 07:27 AM EST |
Drink is the only vice I am admitting to. What does this mean? To me it
sounds like he just can't kick the habit of being a professional
hacker!
Alan.[ Reply to This | # ]
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Authored by: phrostie on Thursday, November 27 2003 @ 09:11 AM EST |
" IBM's motion to compel fails to comply with this Court's
strict procedural requirement of conferring in good faith
to attempt to resolve the discovery dispute without court
intervention. Rule 37-1(a) of this Court's local rules
specifically requires reasonable efforts to reach
agreement with the opposing party on the matters set forth
in the motion, and to set forth a specific recitation of
time, date and place of, and the identity of all counsel
involved in such efforts. Without that, "the court will
not entertain any discovery motion." IBM has ignores this
procedural requirement. "
Would this be like SCO's refusal to work with the Linux
kernel developers to identify any proprietary code and
remove it?
---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux[ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 27 2003 @ 09:40 AM EST |
It's interesting to compare what SCO is saying in the IBM suit to what it's
saying here:
Largely because this is a case arising out of
IBM's misconduct, SCO objected to identifying materials in Linux in which
SCO has separate rights unrelated to IBM.
Memorandum in
Opposition to 2nd Motion to Compel Discovery, 11/24/03
The
reality is that the previously filed SCO v. IBM case pending in Utah governs
many of the issues in this case, which certainly justifies staying or
transferring this cause.
Consolidated reply,
10/24/03
Well, if 'many' of the issues in the Red Hat case will be governed
by the IBM case, just what issues might they be? If SCO thinks the IBM case
treats only IBM's contributions to the Linux kernel, and if SCO is only
claiming contractual rights to those contributions, then what in the
world can the IBM case have to to with the Red Hat case?
It seems that SCO's
PR campaign of speaking out of both sides of its mouth, which succeeds so
brilliantly when talking to the financial press, is infecting its legal briefs.
Hopefully the federal judges will examine SCO's arguments a little more closely
than the analysts and financial reporters have done. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 27 2003 @ 10:02 AM EST |
SCOG is claming that IBM did not follow Rule 37...
IBM, according to
its "Certificate of Compliance with Rule 37(a)(a)(A)", attached hereto as
Appendix "A", admits that it has never discussed Interrogatories 12 and 13 with
SCO's counsel.
But IBM only asked for interrogatories
1-9.
...IBM has filed this motion to compel complete answers to
Interrogatory Nos. 1-9.
So although the are (maybe) telling the
truth, it is not the full truth.
Marc
[ Reply to This | # ]
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Authored by: overshoot on Thursday, November 27 2003 @ 11:14 AM EST |
Moreover, unlike IBM, SCO has been producing documents as they are kept in
the ordinary course of business. No foolin'? SCO programmers use PDF
bitmap images of source code "in the ordinary course of business?" That must be
some compiler they have! IBM, on the other hand, has yet to produce
a single line of source code in any format. I could of course be mistaken,
but doesn't IBM have signed receipts for several hundred thousand pages worth of
AIX source? [ Reply to This | # ]
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Authored by: Anonymous on Thursday, November 27 2003 @ 01:15 PM EST |
I think it's mischaractering SCO's case to say that Sequient/Dynix is the meat
of it. It's more accurate to say that they mounted a shotgun attack, and of the
dozens of pellets fired into a crowd of bystanders, this is the only one that
hasn't [YET] been surgically removed (with great fanfare and publicity) from an
innocent victim's hide. Note that they have been totally reliant on responses
to press reports to even identify the victims!
It is probably fair to say that the reason so much of this case was presented in
the media first was that SCO itself, because of its complete ignorance of all of
computer science (both public lore and secret knowledge) that they were forced
to rely on feedback from their press reports as their credibility-check. Hence
the fine line walked about information revealed: too much information given out,
and their claims will be shredded like wheat. Too little, and they will be left
intact -- ready to be turned into postdigested breakfast cereal in full view of
a judge with a queasy stomach.[ Reply to This | # ]
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Authored by: Anonymous on Friday, November 28 2003 @ 06:43 PM EST |
> To the contrary, it has been widely reported that such revealed code was
placed in Linux not by IBM, but by another company, SGI.
Only the slimiest lawyers could have contrived this. SCO claimed for months to
have "proof", then they so obviously shrouded the truth, and now
they are basically saying that, in the first place, they deliberately placed
FALSE information so that they could later refer to it in court as "code
[that] was placed in Linux not by IBM, but by another company"! WTF!
You can be sure that, except for Groklaw and efforts of the community, they
wouldn't be saying that now if the truth had not been shoved down their
collective throats.
This smacks so highly of CONTEMPT, that I hope the judge throws these buffoons
in the slammer as a holiday gift. Maybe after a few days in jail together,
their stories will align a bit better too.
I'm willing to put up $5 for a jar of Vaseline to help their days in the
"pokey" go more smoothly ;-)[ Reply to This | # ]
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