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The Missing Interrogatories 10 and 11 |
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Saturday, December 06 2003 @ 08:24 PM EST
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Frank Jaffe has the honor of being the one to remember where to find the missing Interrogatories 10 and 11. He did the transcript of IBM's Addendum [PDF], the revised one that has numbers 10 and 11. So here it is, in all its glory. Thank you Frank. The missing Interrogatories are:
INTERROGATORY NO. 10: Separately, for each of plaintiff’s claims for relief, please identify all persons (including but not limited to present or former employees of plaintiff or plaintiff’s predecessors in interest) with knowledge relating to plaintiff’s claims and contentions and the general nature of, or the categories of, facts known by each person.
INTERROGATORY No.11: Please identify all products ever marketed, sold or distributed by plaintiff or plaintiff’s predecessors in interest, including but not limited to the terms on which each was marketed, sold or distributed.
*****************************************
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Snell & Wilmer L.L.P.
[address, phone, fax]
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CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
Thomas O. Rafferty (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]
Attorneys for
Defendant/Counterclaim-Plaintiff
International
Business Machines Corporation
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THE SCO GROUP,
Plaintiff/Counterclaim-Defendant
vs.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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ADDENDUM TO
DEFENDANT/COUNTERCLAIM
PLAINTIFF INTERNATIONAL BUSINESS
MACHINES
CORPORATION’S MEMORANDUM IN
SUPPORT OF MOTION TO
COMPEL DISCOVERY
(ORAL ARGUMENT REQUESTED)
Civil
No. 2:03cv0294
Honorable
Dale A. Kimball
Magistrate
Judge Brooke Wells
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SCO v. IBM; IBM v. SCO
Summary
of
Deficiencies in SCO’s Interrogatory Responses
NO
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Interrogatory
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Response
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Deficiencies
and Cure
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1.
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Please
identify, with specificity (by product, file and line of code, where
appropriate) all of the alleged trade secrets and any confidential or
proprietary information that plaintiff alleges or contends IBM
misappropriated or misused, including but not limited to as alleged in
¶ 105 of the Complaint.
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SCO’s
Response and Objections: “In
addition to the foregoing General Objections, SCO notes that discovery
has just begun and it has not yet received responsive discovery from
IBM that would allow it to fully answer this question because part of
this information is peculiarly within the knowledge of IBM. Subject to
and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d),
SCO will make available for copying or inspection at a mutually
convenient date and time the responsive documents upon the entry of an
appropriate confidentiality agreement and order. The trade secrets
include without limitation UNIX software design methods for creation
and modification of software based on UNIX
System V. These UNIX methods include ways to modify IBM's version of
UNIX known as AIX and Sequent's version of UNIX known as Dynix/ptx. The
UNIX methods include those inherent in and learned through access to
the System V source code licensed to IBM and/or Sequent and those
developed by IBM and/or Sequent in creating derivative works and
modification based on UNIX System V pursuant to licensing agreement
with SCO's predecessors and SCO and those that IBM and/or Sequent
agreed to maintain in confidence for SCO's predecessors and SCO.
Without limitation, the methods include technical UNIX categories, such
as multi-processor locking and unlocking methods, methods for avoiding
locking requirements, methods for implementing filing systems,
de-bugging methods, methods for implementing and improving processor
scalability, methods for implementing and improving processor
reliability, methods for implementing and improving processor
accessibility, methods for implementing and improving scheduling
systems, methods for implementing and improving memory management,
methods for implementing and improving threading and multi-threading,
and methods for implementing and improving general system functionality
based on UNIX technology.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information. SCO misplaces reliance on Rule 33(d), and its
general, narrative response is essentially meaningless.
SCO's
reliance on Rule 33(d) is improper because (1) the alleged trade
secrets and any confidential or proprietary information that SCO
alleges or contends IBM misappropriated or misused cannot be derived or
ascertained (by product, file and line of code) from the documents SCO
has produced; (2) the burden of deriving or ascertaining the answer to
this interrogatory from the documents SCO has produced is not
substantially the same for IBM as for SCO; and (3) SCO has not provided
a specification in sufficient detail to permit IBM to locate and
identify, as readily as SCO, the records from which the answer may be
ascertained.
SCO's
narrative response is essentially meaningless because (1) it is
expressly non-exclusive; (2) it omits any reference to most of the
very kinds of alleged trade secrets and confidential or proprietary
information that SCO has publicly identified (albeit in vague and
general terms) as having been misappropriated
or misused by IBM (e.g., “literal copying”; “derivative works”,
“obfuscation”, and “non literal transfers” of “structures” and
“sequence”); (3) the “methods” to which SCO refers are described in
terms that are so vague as to be essentially meaningless (e.g.,
SCO fails entirely to identify the files and lines of code that
correspond to the “methods” to which SCO refers); and (4) SCO’s
reference to terms such as “RCU”, “NUMA” and “SMP” are no more
meaningful than SCO's list of “technical UNIX categories”, as SCO fails
to identify a single file or line of code and cannot in good faith
claim all RCU, NUMA and SMP code.
SCO should be
required immediately to identify -- by product, file and line of code
-- all of the alleged trade secrets and any confidential or proprietary
information that SCO alleges or contends IBM misappropriated or
misused. There is no reason it cannot, and should not be required to,
do this.
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2.
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For each
alleged trade secret of any confidential or proprietary information
identified in response to Interrogatory No. 1, please identify: (a) all
persons who have or have had rights to the alleged trade secret or
confidential or proprietary information; (b) the nature and source of
the rights; and (c) all efforts by any person
to maintain the secrecy or confidentiality of the alleged
trade secrets and any confidential or proprietary information.
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SCO’s
Response and Objections: “In
addition to the foregoing General Objections, SCO notes that discovery
has just begun and it has not yet received responsive discovery from
IBM that would allow it to fully answer this question because part of
this information is peculiarly within the knowledge of IBM. In
addition, SCO objects to this question as overly broad in that once SCO
or its predecessors licensed the Protected Material to companies, the
identity of persons within those companies who were bound by the
confidentiality provisions is not known to SCO nor are the individual
efforts of each of those companies and its personnel to maintain the
secrecy and confidentiality of the Protected Material as they were
obligated to do. Subject to and without waiving these objections,
pursuant to Fed.R.Civ.P. 33(d), SCO will make available for copying or
inspection at a mutually convenient date and time the responsive
documents upon the entry of an appropriate confidentiality agreement
and order, including but not limited to the license agreements between
SCO (and its predecessors) and third parties concerning the Protected
Material.”
Supplemental
Response: In response to IBM
demand for more information, SCO stated, in a letter dated August 8,
2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the
System V source code, the license agreements with all licensees, and
the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information. SCO
misplaces reliance on Rule 33(d) and does not even undertake a
narrative response.
SCO's
reliance on Rule 33(d) is improper because (1) the identity of all
persons who have or have had rights to, the nature and source of, and
all efforts by any person to maintain the secrecy or confidentiality of
each line of code identified in response to Interrogatory No. 1 cannot
be derived or ascertained from the documents SCO has produced; (2) the
burden of deriving or ascertaining the answer to this interrogatory
from the documents SCO has produced is not substantially the same for
IBM as for SCO; and (3) SCO has not provided a specification in
sufficient detail to permit IBM to locate and identify, as readily as
SCO, the records from which the answer may be ascertained.
For each line of code identified in response
to Interrogatory No. 1, SCO should be required immediately to identify:
(a) all persons who have or have had rights to the code, including in
particular all officers and employees of SCO and its predecessors in
interest; (b) the nature and source of SCO's rights in the code, such
as whether they are contractual, common law or statutory (e.g.,
trade secret) and how SCO acquired such rights; and (c) all efforts by
any person to maintain the secrecy or confidentiality of the code (such
as by bringing suit to protect the confidentiality of the code).
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3.
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For each
alleged trade secret and any confidential or proprietary information
identified in response to Interrogatory No. 1, please identify all
persons to whom the alleged trade secret or confidential or proprietary
information is known or has been disclosed and describe, in detail, the
circumstances under which it became known or was disclosed, including
but not limited to:
(a) the date
on which the alleged trade secret or confidential or proprietary
information was disclosed or became known to such persons; (b) the
specific terms on which the information was disclosed or became known,
such as pursuant to a confidentiality agreement; (c) all documents or
agreements relating to the disclosure; and (d) all places or locations
where the alleged trade secret or confidential or proprietary
information may be found or accessed.
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SCO’s
Response and Objections: “For
questions 3(a)-(c) in addition to the foregoing general objections, SCO
notes that discovery has just begun and it has not yet received
responsive discovery from IBM that would allow it to fully answer this
question because part of this information is peculiarly within the
knowledge of IBM. In addition, SCO objects to this question as overly
broad in that once SCO or its predecessors licensed the Protected
Material to companies, the identity of persons within those companies
who were bound by the confidentiality provisions is not known to SCO
nor are the individual efforts of each of those companies and its
personnel to maintain the secrecy and confidentiality of the Protected
Material as they were obligated to do. Subject to and without waiving
these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make
available for copying or inspection at a mutually convenient date and
time the responsive documents upon the entry of an appropriate
confidentiality agreement and order, including but not limited to the
license agreements between SCO (and its predecessors) and third parties
concerning the Protected Material. For interrogatory 3(d), SCO’s
investigation is continuing but, at this time, SCO’s Protected Material
has been found in Linux Kernel 2.4.x and 2.5.x., as well as on various
licensees' flavors of UNIX.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information. SCO
misplaces reliance on Rule 33(d) and does not even undertake a
narrative response.
SCO's
reliance on Rule 33(d) is improper because (1) all persons to whom the
code identified in response to Interrogatory No. 1 is known or has been
disclosed and a detailed description of the circumstances under which
it became known or was disclosed cannot be derived or ascertained from
the documents SCO has produced; (2) the burden of deriving or
ascertaining the answer to this interrogatory from the documents SCO
has produced is not substantially the same for IBM as for SCO; and (3)
SCO has not provided a specification in sufficient detail to permit IBM
to locate and identify, as readily as SCO, the records from which the
answer maybe ascertained.
SCO should be
required immediately to identify all persons to whom the code
identified in response to Interrogatory No. 1 is known or has been
disclosed and describe, in detail, the circumstances under which it
became known or was disclosed, including but not limited to:
(a) the date
on which it was disclosed or became known; (b) the specific terms on
which it was disclosed or became known, such as pursuant to a
confidentiality agreement or under the GPL or another license; (c) all
documents or agreements relating to the disclosure such as
e-mails or internal memoranda discussing a disclosure; and (d) all
places or locations where the alleged trade secret or confidential or
proprietary information may be found or accessed such as a website or a
file and line of code in Linux.
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4.
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For each
alleged trade secret and any confidential or proprietary information
identified in response to Interrogatory No. 1, please describe, in
detail, each instance in which plaintiff alleges or contends that IBM
misappropriated or misused the alleged trade secret or confidential or
proprietary information, including but not limited to: (a) the date of
the alleged misuse or misappropriation; (b) all persons involved in any
way in the
alleged misuse or misappropriation; (c) the specific manner in which
IBM is alleged to have engaged in misuse or misappropriation; and (d)
with respect to any code or method plaintiff alleges or contends that
IBM misappropriated or misused, the location of each portion of such
code or method in any product, such as AIX, in Linux, in open source,
or in the public domain.
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SCO’s
Response and Objections: “In
addition to the foregoing General Objections, SCO notes that discovery
has just begun and it has not yet received responsive discovery from
IBM that would allow it to fully answer this question because part of
this information is peculiarly within the knowledge of IBM and/or Linus
Torvalds and/or the Open Source Development Laboratory (“OSDL”).
Subject to and without waiving these objections, pursuant to
Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection
at a mutually convenient date and time the responsive documents upon
the entry of an appropriate confidentiality agreement and order. In
addition, and subject to and without waiving any objections, IBM has
misappropriated, misused, transferred and otherwise directly and
indirectly communicated the trade secrets identified in Interrogatory
No. 1 above to Linus Torvalds, the OSDL, other Linux and open source
developers, Linux distributors and Linux end users.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information. SCO
misplaces reliance on Rule 33(d), and its general, narrative response
is essentially meaningless.
SCO's
reliance on Rule 33(d) is improper because (1) IBM cannot derive or
ascertain from the documents SCO has produced (a) each instance in
which SCO alleges or contends that IBM misappropriated or misused the
code identified in response to Interrogatory No. 1;
(b) the date of the alleged misuse or misappropriation; (c) all persons
involved in any way in the alleged misuse or misappropriation; (d) the
specific manner in which IBM is alleged to have engaged in misuse or
misappropriation; or (e) the location of each portion of such code or
method in any product, in Linux, in open source, or in the public
domain; (2) the burden of deriving or ascertaining the answer to this
interrogatory from the documents SCO has produced is not substantially
the same for IBM as for SCO; and (3) SCO has not provided a
specification in sufficient detail to permit IBM to locate and
identify, as readily as SCO, the records from which the answer may be
ascertained.
SCO’s
narrative response is essentially meaningless because it includes no
more particularity than the vague allegations of the complaint.
SCO should be
required immediately to
describe, in detail, each instance in which plaintiff alleges or
contends that IBM misappropriated or misused the code identified in
response to Interrogatory No. 1, including but not limited to: (a) the
date of the alleged misuse or misappropriation; (b) all persons
involved in any way in the alleged misuse or misappropriation,
including in particular all officers and employees of SCO and its
predecessors in interest; (c) the specific
manner in which IBM is alleged to have
engaged in misuse or misappropriation, such as by (i) line-for-line
copying of code from
System V to Linux kernels 2.4+, (ii) copying, posting, removing legal
notices or reorganizing the order of program structures;
(iii) contributing modifications of System V to Linux kernels 2.4+ in
violation of contracts; and (iv) making non-literal transfers of
methods, structures and sequences from System V to Linux kernels 2.4+;
and (d) the location of each portion of the identified code in any
product, in Linux, in open source, or in the public domain --
identified by file and line of code.
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5.
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For each
alleged trade secret and any confidential or proprietary information
identified in response to Interrogatory No. 1, please identify: (a) all
agreements relating to the alleged trade secret or confidential or
proprietary information including but not limited to the parties to and
the terms of the agreements, and
(b) all copyrights and patents relating to the alleged trade secret or
confidential or proprietary information including but not limited to
the owners, licensors, licensees, assignors or assignees of those
copyrights or patents.
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SCO's
Response and Objections:
“Subject to and without waiving the General Objections, pursuant to
Fed.R.Civ.P. 33(d), SCO will make available for copying or inspection
at a mutually convenient date and time the responsive documents upon
the entry of an appropriate confidentiality agreement and order.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information, SCO
relies too heavily on Rule 33(d) and does not even undertake a
narrative response.
SCO may rely,
in part, on Rule 33(d) to satisfy its obligation to respond to this
interrogatory.
But SCO goes too far, as (1) the mere
production of documents does not allow IBM to link the lines of code
identified in response to Interrogatory No. 1 to the agreements,
copyrights and patents requested by this interrogatory; (2) the burden
of deriving or ascertaining the full answer to this interrogatory from
the documents SCO has produced is not substantially the same for IBM as
for SCO; (3) SCO has not provided a specification in sufficient detail
to permit IBM to locate and identify, as readily as SCO, the records
from which the full answer may be ascertained.
SCO should be
required immediately to identify, by file and line of code, all
agreements, copyrights and patents relating to each file and line of
code identified in response to Interrogatory No. 1
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6.
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For each line
of source or object code and each method identified in response to
Interrogatory
No. 1, please identify: (a) the origin of the code or method, including
when, where and by whom the code or method was created; and (b) all
products in which, in whole or in part, the code or method is included
or on which, in whole or in part, the code or method is based.
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SCO’s
Response and Objections: “In
addition to the foregoing General Objections, SCO notes that discovery
has just begun and it has not yet received responsive discovery from
IBM that would allow it to fully answer this question because part of
this information is peculiarly within the knowledge of IBM, such as the
modifications and derivative works created by IBM that were to be
treated as the original Software Product as that term is defined in the
Software Agreement or Sublicensing Agreement. Subject to and without
waiving these objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make
available for copying or inspection at a mutually convenient date and
time the responsive documents upon the entry of an appropriate
confidentiality agreement and order.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-1l are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information. SCO
misplaces reliance on Rule 33(d) and does not even undertake a
narrative response.
SCO's
reliance on Rule 33(d) is improper because (1) IBM cannot derive or
ascertain from the documents SCO has produced (a) the origin of the
code identified in response to Interrogatory No. 1; and (b) all
products in
which the code is included or on which it is based; (2) the burden of
deriving or ascertaining the answer to this interrogatory from the
documents SCO has produced is not
substantially the same for IBM as for SCO; and (3) SCO has not provided
a specification in sufficient detail to permit IBM to locate and
identify, as readily as SCO, the records from which the answer may be
ascertained.
SCO should be
required immediately to
disclose, for each line of code identified in response to Interrogatory
No. 1, (a) the origin of the code or method (such as when, where and by
whom the code or method was created); and
(b) all products in which it is included or on which it is based (such
as files and lines of code in Linux).
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7.
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Please
describe, in detail, each instance in which plaintiff alleges that IBM
engaged in unfair competition, including but not limited to: (a) the
dates on which IBM allegedly engaged in any unfair competition; (b) all
persons involved in the alleged unfair competition; and (c) the
specific manner in which IBM is alleged to have engaged in unfair
competition including but not limited to as alleged in ¶ 118 of the
Complaint.
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SCO’s
Response and Objections: “In
addition to the foregoing general objections, SCO notes that discovery
has just begun and it has not yet received responsive discovery from
IBM that would allow it to fully answer this question because part of
this information is peculiarly with the knowledge of IBM. Subject to
and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d),
SCO will make available for copying or inspection at a mutually
convenient date and time the responsive documents upon the entry of an
appropriate confidentiality agreement and order. These acts include
improper use of the Software Products and modifications and derivative
works of the Software Products in a manner exceeding the scope of the
license. Such acts include, but are not limited to, contributions of
the modifications and derivative works to Linus Torvalds and/or others
in the open source community.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information, SCO
misplaces reliance on Rule 33(d), and its general, narrative response
is essentially meaningless.
SCO's
reliance on Rule 33(d) is improper because (1) IBM cannot derive or
ascertain from the documents SCO has produced the particulars of each
instance in which SCO alleges that IBM engaged in unfair competition;
(2) the burden of deriving or ascertaining the answer to this
interrogatory from the documents SCO has produced is not substantially
the same for IBM as for SCO; and (3) SCO has not provided a
specification in sufficient detail to permit IBM to locate and
identify, as readily as SCO, the records from which the answer may be
ascertained.
SCO’s
narrative response is essentially meaningless because it (1) is
expressly
non-exclusive; and (2) includes no more particularity than the vague
allegations of the complaint.
SCO should be
required immediately to
describe, in detail, each instance in which plaintiff alleges that IBM
engaged in unfair competition, including but not limited to:
(a) the dates
on which IBM allegedly engaged in any unfair competition; (b) all
persons involved in the alleged unfair competition; and (c) the
specific
manner in which IBM is alleged to have engaged in unfair competition,
such as by (i) line-for-line copying of code from System V to Linux
kernels 2.4+, (ii) copying, posting, removing legal notices or
reorganizing the order of programming structures; (iii) contributing
modifications of System V to Linux kernels 2.4+ in violation of
contracts; and (iv) making non-literal transfers of methods, structures
and sequences from System V to Linux kernels 2.4+; and (d) the
location of each portion of the identified code in any product, in
Linux, in open source, or in the public domain -- identified by file
and line of code.
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8.
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Please
identify all agreements with which plaintiff alleges IBM interfered and
describe, in detail, each instance in which plaintiff alleges or
contends that IBM interfered with those agreements, including but not
limited to:
(a) the date
of alleged interference; (b) all persons involved in the alleged
interference; (c) the specific manner in which IBM is alleged to have
interfered with the agreement; (d) the specific actions, if any, that
IBM induced or encouraged plaintiff's customers or licensees to take;
(e) the specific action, if any, that plaintiff's customer or licensee
took as a result of the actions allegedly induced or encouraged by IBM;
and (f) the specific trade secret or confidential or proprietary
information, if any, involved in the alleged interference.
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SCO’s
Response and Objections: “In
addition to the foregoing general objections, SCO notes that discovery
has just begun and it has not yet received responsive discovery from
IBM that would allow it to fully answer this question because part of
this information is peculiarly within the knowledge of IBM. Subject to
and without waiving these objections, pursuant to Fed.R.Civ.P. 33(d),
SCO will make available for copying or inspection at a mutually
convenient date and time the responsive documents upon the entry of an
appropriate confidentiality agreement and order.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
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SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information. SCO
misplaces reliance on Rule 33(d) and does not even undertake a
narrative response.
SCO may rely,
in part, on Rule 33(d) to satisfy its obligation to respond to this
interrogatory. But SCO goes too far. The production of documents may be
sufficient to identify all agreements with which SCO alleges IBM
interfered, but it is plainly insufficient to describe, in detail, each
instance in which SCO alleges or contends that IBM interfered with
those agreements. With respect to that information, SCO’s reliance on
Rule 33(d) is improper because (1) IBM cannot derive or ascertain the
information from the documents SCO has produced; (2) the burden of
deriving or ascertaining this information from the documents SCO has
produced is not substantially the same for IBM as for SCO; and (3) SCO
has not provided a specification in sufficient detail to permit IBM to
locate and identify, as readily as SCO, the records from which the
answer may be ascertained.
With respect
to each agreement identified in response to this interrogatory, SCO
should be required immediately to specify (a) the date of alleged
interference; (b) all persons involved in the alleged interference; (c)
the specific manner in which IBM is alleged to have interfered with the
agreement (e.g., by “literal copying” or “non-literal
transfers”); (d) the specific actions that IBM included or encouraged
SCO's customers or licensees to take; (e) the specific action that
SCO's customer or licensee took as a result of the actions allegedly
induced or encouraged by IBM; and (f) the specific code (identified by
file and line of code), if any, involved in the alleged interference.
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9.
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Please
identify all agreements that plaintiff alleges or contends that IBM has
breached, including the specific provisions or portions of those
agreements that plaintiff alleges or contends that IBM breached, and
describe, in detail, each instance in which plaintiff alleges or
contends that IBM breached those agreements, including but not limited
to
(a) the date of the alleged breach; (b) all persons involved in the
alleged breach; and (c) the specific manner in which IBM is alleged to
have breached the agreement.
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SCO’s
Response and Objections: “In
addition to the foregoing General Objections, SCO notes that discovery
has just begun and it has not yet received responsive discovery from
IBM that would allow it to fully answer this question because part of
this information is peculiarly within the knowledge of IBM.
Nonetheless, at this time, as detailed in the Amended Complaint, among
the provisions the Software and Sublicensing Agreements that IBM
breached are Sections 2.01, 2.05, 4.01, 6.03 and 7.06, of the Software
Agreement. Section 2.01 was breached by IBM’s failure to treat
modifications and derivative works as part of the original Software
Product by contributing such items to open source. Likewise, IBM
breached Section 2.05 by allowing use for others and by others as a
result of contributing the Protected Material to open source. Section
4.01 prohibits export of the Software Products, which IBM breached by
contributing the Software Product, including methods, modifications and
derivative works to open source. As a result, persons anywhere in the
world with a computer can access this information, including in
countries that the federal government prohibits dissemination of such
information. IBM breached Section 6.03 by continuing to use the
Software Products after the license was terminated on June 13, 2003, as
well as failing to return or destroy all Software Products after that
date. IBM also breached Section 7.06 by failing to maintain in
confidence the Software Products, as that term is defined in the
agreements. IBM also breached a subsequent agreement that IBM would not
use System V or AIX in any open source operating system. IBM also
breached §2.1 of Amendment X by using the Software Products for its
contractors, including OSDL and other Linux development laboratories
and Linux developers for other than Authorized Purposes. IBM also
breached §6 of Amendment X by using the Software Product for an
unauthorized use and distribution of Linux without paying the required
additional royalty amounts.”
|
SCO has
agreed not to withhold responsive information based upon its
objections, but nevertheless declines to provide that information. SCO
misplaces reliance on Rule 33(d), and its general, narrative response
is essentially meaningless.
SCO may rely,
in part, on Rule 33(d) to satisfy its obligation to respond to this
interrogatory.
But SCO goes too far. The production of documents may be sufficient to
identify all agreements that SCO alleges or contends that IBM has
breached, but it is plainly insufficient
to describe, in detail, the specific provisions or portions of those
agreements that SCO alleges or contends that IBM breached and each
instance in which plaintiff alleges or contends that IBM breached them.
SCO's reliance on Rule 33(d) is improper because (1) IBM cannot derive
or ascertain this information from the documents SCO has produced; (2)
the burden of deriving or ascertaining this information from the
documents SCO has produced is not
substantially the same for IBM as for SCO; and (3) SCO has not provided
a specification in sufficient detail to permit IBM to locate and
identify, as readily as SCO, the records from which this information
maybe ascertained.
SCO's
narrative response is essentially meaningless because it (1) is
expressly
non-exclusive; and (2) includes no more particularity than the vague
allegations of the complaint.
With respect
to each agreement SCO identifies in response to this interrogatory, SCO
should be required immediately to identify the specific provisions or
portions of those agreements that plaintiff alleges or contends that
IBM breached and, with respect to each such provision or portion,
describe, in detail, each instance in which plaintiff alleges or
contends that IBM breached those agreements, including but not limited
to (a) the date of the alleged breach;
(b) all persons involved in the alleged breach; and (c) the specific
manner in which IBM is alleged to have breached the agreement, such as
by (i) line-for-line copying of code from
System V to Linux kernels 2.4+, (ii) copying, posting, removing legal
notices or reorganizing the order of programming structures;
(iii) contributing modifications of System V to Linux kernels 2.4+ in
violation of contracts; and (iv) making non-literal transfers of
methods, structures and sequences from System V to Linux kernels 2.4+;
and (d) the location of each portion of the identified code in any
product, in Linux, in open source, or in the public domain --
identified by file and line of code..
|
10.
|
Separately,
for each of plaintiff's claims for relief, please identify all persons
(including but not limited to present or former employees of plaintiff
or plaintiff's predecessors in interest) with knowledge relating to
plaintif'’s claims and contentions and the general nature of, or the
categories of, facts known by each person.
|
SCO's
Response and Objections: “In
addition to the General Objections, this question is overly broad and
unduly burdensome in that it seeks information outside the custody or
control of plaintiff by asking information known by plaintif'’s
predecessors. Subject to and without waiving the General Objections and
foregoing objections, pursuant to Fed.R.Civ.P. 33(d), SCO will make
available for copying or inspection at a mutually convenient date and
time the responsive documents upon the entry of an appropriate
confidentiality agreement and order.”
Supplemental
Response: In response to
IBM's demand for more information, SCO stated, in a letter dated August
8, 2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
|
IBM is not at
this time moving to compel a response to this interrogatory.
|
11.
|
Please
identify all products ever marketed, sold or distributed by plaintiff
or plaintif'’s predecessors in interest, including but not limited to
the terms on which each was marketed, sold or distributed.
|
SCO’s
Response and Objections: “In
addition to the General Objections, this question is overly broad and
unduly burdensome and seeks irrelevant information by requesting all
products ever marketed, sold or distributed by plaintif'’s predecessors
in interest, including but not limited to the terms on which each was
marketed, sold or distributed. Plaintiff's predecessors in interest
include, for example, AT&T. A list of all products ever marketed,
sold or distributed by AT&T would be filled with information wholly
irrelevant to any issue in this action and, moreover, is not
information known to plaintiff. Even limiting the request to items
marketed, sold or distributed by plaintiff, the request remains overly
broad because it seeks the terms of each sale or distribution. Such a
request would require production of every invoice and such information
is irrelevant and unduly burdensome to obtain. Subject to and without
waiving these objections, pursuant to Fed.R.CivP. 33(d), SCO will make
available for copying or inspection at a mutually convenient date and
time sufficient documents identifying all products sold by SCO and the
general terms on which they were marketed, sold or distributed upon the
entry of an appropriate confidentiality agreement and order. The
products sold include the following: [list of products]”
Supplemental
Response: In response to IBM
demand for more information, SCO stated, in a letter dated August 8,
2003, that “the documents responsive to [Interrogatory Nos. 1-8 and
10-11] are the System V source code, the license agreements with all
licensees, and the Linux 2.4 kernel”.
|
IBM is not at
this time moving to compel a response to this interrogatory.
|
|
|
Authored by: OK on Saturday, December 06 2003 @ 08:41 PM EST |
WOW! Thank you guys - that's great to be able to see it put together. [ Reply to This | # ]
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Authored by: Anonymous on Saturday, December 06 2003 @ 09:01 PM EST |
So what happens now if SCO submits an affidavit that they tried hard, but they
cannot come up with any answers until IBM shows them everything they asked for
(all the 40 million pages)?[ Reply to This | # ]
|
- Affidavits - Authored by: Jude on Saturday, December 06 2003 @ 09:07 PM EST
- Affidavits - Authored by: pooky on Saturday, December 06 2003 @ 11:33 PM EST
- Affidavits - Authored by: J.F. on Sunday, December 07 2003 @ 01:08 AM EST
- Affidavits - Authored by: Anonymous on Sunday, December 07 2003 @ 02:10 AM EST
- Affidavits - blacklight - Authored by: Anonymous on Sunday, December 07 2003 @ 05:40 AM EST
- Affidavits - Authored by: Jude on Sunday, December 07 2003 @ 11:14 AM EST
|
Authored by: penfold on Saturday, December 06 2003 @ 09:13 PM EST |
I just found this on a
Good Morning Silicon Alley article. I'm not sure if anyone else
has noticed it, so I thought I would mention it.
Note to
IBM attorneys: Do yourselves a favor and go read Groklaw: Found over on Groklaw
is some rather interesting investigative research that suggests SCO willingly
contributed to the development of enterprise-enabling features of Linux.
Groklaw's report is far too detailed to outline here, but it's great reading for
anyone interested in the SCO/IBM debacle, particularly IBM's legal
team.
Keep up the good work Pj... :)--- I'm not kidding,
that boy's head is like Sputnik; spherical but quite pointy at parts! He'll be
crying himself to sleep tonight, on his huge pillow. [ Reply to This | # ]
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Authored by: fjaffe on Saturday, December 06 2003 @ 10:12 PM EST |
I am kind of surprised that IBM did not move to compel on Interrogatory 9. I
think SCO may be right (first time for everything), in that Interrogatory 10 was
overbroad and should be limited in scope to the products under dispute (e.g.
UNIX and LINUX related offerings).
With the appropriate limitation to this
interrogatory, and with SCO still apparently not having provided any responsive
answers, I wonder if IBM will move to compel on these, either in the Wednesday
submission, or sometime before the first thirty days expire. [ Reply to This | # ]
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Authored by: pooky on Sunday, December 07 2003 @ 12:17 AM EST |
Found this tidbit at vunet researching old Darl McBride interviews. I'm
trying to compile a complete list of public statements regarding what McBride
has said as they relate to what SCOG has claimed in their legal
docs.
6/30/2003
http://www.vnunet.com/Analysis/1141929
W
ell, not necessarily. We have been pretty assertive and pretty aggressive and we
are going to continue that.
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.
Darl McBride states in this article unequivocally
that SCOG has enough evidence to take IBM to court. How is it then that they
require IBM's discovery before they can detail to IBM what SCOG has already made
a claim of?
-pooky --- SCO FUD = Faux SCUD? [ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 03:04 AM EST |
1. Could somebody try to explain how the filing of yet another amended
complain is going to affect the time line?
2. Can SCO simply drop certain parts of the original complaint and say:
its not trade secrets any more, its copyrights now. Thus we do not have
to answer the interrogations. Lets just start all over with a different
perspective and do discovery all over again?[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 03:28 AM EST |
INTERROGATORY NO. 10: ... each of plaintiff?s claims for ... (... of plaintiff
or plaintiff?s ...) ... relating to plaintiff?s claims ...
INTERROGATORY No.11: ... by plaintiff or plaintiff?s predecessors ...
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 03:40 AM EST |
Just curious, and a little off-topic..
What is happening in the RedHat case, and has any of the recent IBM case events
had any effect on the RedHat case?
[ Reply to This | # ]
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Authored by: Drew on Sunday, December 07 2003 @ 04:52 AM EST |
<tinfoilhat on>
Have any of you ever wondered what if IBM was behind this case? In a
truely Milo way bombing their own runway/getting someone to sue
themselves?
"Why the hell would they do *THAT*?!" you ask.
"What a stupid internet conpiracist freak!" you think.
Please bear with me for a second:
The First Rule: A publically traded company exists for one reason only:
to make profit for shareholders. If that is not its primary goal it will
not be in business for long. Remember "The Dentist" from
Cryptonomicon is all I have to say to that.
No company is ethical as such. Being perceived as benevolent/ethical/
environmentally conscious/insert positive adjective here is just one
method to gain profit.
Chemical companies didn´t reduce pollution because they wanted to,
they just found it with harsher laws and penalties it was cheaper than
being sued. That with recent legislation/governments companies are
waking up to the fact that it´s even cheaper to get your own laws
passed is another point entirely.
IBM isn´t contributing to linux because they say "Hey, this is a cool
thing that´ll save the planet, let´s join". It is one way they perceive to
make money.
"OK, we follow you so far, but what does that have to do witht he case
in point?" you ask.
Well, then let´s practice what we preach to find out the real culprit and
follow the money! Some benefits IBM gains from this lawsuit:
-Publicity and goodwill. Money couldn´t buy this. No advertising
campaign no matter how well funded could have this grassroots effect.
IBM has been transformed into the poster child for every geek, there´s
a huge amount of goodwill in the OS community towards them where
there was a lot of guardedness before. Not even talking about how
often they get mentioned in the press. Doesn´t matter what they write
about you as long as they do write about you.
-Keep up the toughguy image of the 800 lb gorilla. Don´t mess with
IBM or else. This case it the courtroom equivalent of a military parade
or a public mob hit. "Look how our ninja attack lawyers destroy the
opposition, don´t mess with us or it´ll be you next!"
-Keep the lawyers in practice. Give them something to do and practice
to keep their skills honed. (of course they´re *not* in on the plot!)
-Diversion, e.g. from those *other* cases currently in court against IBM
where they do not come off as the shiny knight like the one about
unsafe work practices and using cancerous chemicals.
-Get MS in trouble. They know us, they know the kneejerk reaction
that it´s all a conspiracy. And they know who we all think is the dark
power behind it all: Microsoft. Keeps us occupied, keeps us focused on
the "one true enemy" and makes us flock to buy from "good
IBM".
-Picking up the pieces. After the smoke has cleared, pick up what´s
left of the unix rights and assorted other jewels that might be found in
the rubble.
A more paranoid mind than mind can surely come up with more
reasons...
It´s often been said that it´s not SCO as such doing the case, just the
top management actually controls what´s going on. How often has it
been suggested that after the case they´ll find nice jobs with MS? Well,
an anonymous multi-million dollar contribution by IBM to an account
on the Cayman Islands could be the convincing argument to get this
thing started...
"OK, you´ve convinced me! Help! How can I be safe, whom can I
trust?"
you now ask. The first step might be to turn to good old linux of
course:
http://tinfoilhat.shmoo.com/
Remember, you heard it from me first, and if I don´t post in the next
couple of days IBM might have gotten me whacked to keep me silent.
The only question that remains: "Is PJ in on it?"
OK, I´ll go and take my medication now...
<tinfoilhat off>
Disclaimer:
Do I believe the above? Not really. Would I put it past IBM or any other
large company/goverment? Not really, if they were sure to get away
with it.
I know this is off-topic, sorry for that, but I think it´s worthwhile to
look at things from different angles. The best way to learn about your
home country is to travel abroad. I´ve noticed that the "mindset" on
Groklaw has become relatively, I don´t know, identical, though that´s
not the right word. I wouldn´t call it slashdot-like, but it´s going
there. People are just too agreeable, and no, this is *not* a call for
trolling.
During the week I don´t have time for this (I´ve been thinking about
the post for some time) so I had to do it on a weekend, sorry.
Drew[ Reply to This | # ]
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Authored by: MacUser on Sunday, December 07 2003 @ 10:41 AM EST |
There are intriguing parallels between SCO v IBM and a lawsuit taken against
Apple in 1998 by a company called Imatec. Although the legal issues were quite
different, the media/PR strategies are eerily similar.
1. Imatec got the media's attention when it demanded $1.1 billion initially,
subsequently warning that the damages could rise to three times that.
2. Imatec conducted its campaign in the media, with a succession of
ever-shriller press releases. Apple issued only a few terse statements.
3. Imatec reportedly sent cease-and-desist letters to end users.
4. Imatec raised the ante by warning that a court victory for them would
"seriously impact (Apple's) business."
5. Mainstream news sites were perceived as reporting Imatec's claims with a
lack of skepticism.
Imatec's bubble burst in January 2000, when a judge threw the case out. Imatec
appealed, but lost.
6. Imatec's claims were proved baseless, yet had been disseminated even on
sites sympathetic to the Mac platform. There is no need for conspiracy theories
to explain the media coverage of SCO's claims; journalists simply cannot turn
down a sensational allegation:)
IANAL, but I have worked as an online editor on a technical news site.
MacUser
Some links to the Imatec affair:
http://www.techweb.com/wire/story/macatya/TWB20000127S0002)
http://www.findarticles.com/cf_dls/m3563/6_15/54483167/p1/article.jhtml
http://www.macobserver.com/columns/appletrader/98/december/981222.html
http://www.theregister.co.uk/content/39/20812.html[ Reply to This | # ]
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Authored by: cbc on Sunday, December 07 2003 @ 11:55 AM EST |
IANAL so this is my question. If IBM accepts SCO's response to Interrogatories
10 and 11, is SCO then limited in some way from producing evidence in court from
another release of Unix, say BigBux 3.4 or a license with SpecialCo which has
different terms from the all-users license specified in the response?[ Reply to This | # ]
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Authored by: Thomas Frayne on Sunday, December 07 2003 @ 12:39 PM EST |
On Friday, I mentioned that some of the responses to SCO's FUD have started
appearing inline with the original FUD article. I was asked for a reference,
but did not find the request until today. I was unable to pinpoint the article
I was referring to, but here are some links to similar articles:
A bad week for the SCO Group
SCO's antics get slapped down
SCO Group
Launches Broadside Against GPL
SCO's McBride sounds off
in Linux legal battle
SCO CEO Fires First Shot At Open Source
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 01:04 PM EST |
I have started to see press
reports about Magistrate Wells's ruling.
My questions is, since the
press was not in attendence, where did they get their info? Did they just swipe
it from Groklaw without attribution?
[ Reply to This | # ]
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Authored by: PM on Sunday, December 07 2003 @ 01:31 PM EST |
SCO's subpoenas to Linus etc have been in the background at present.
Presumably they will respond to the easy and inoffensive stuff, but will resist
the parts that require alot of work to put together.
If the Court has stayed SCO's discovery requests to IBM, then presumably the
Court would do the same for Linus and co in the circumstances if asked. SCO is
obviously not entitled to fish via these subpoenas.
[ Reply to This | # ]
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Authored by: markus on Sunday, December 07 2003 @ 01:50 PM EST |
SCO just moved the date from the 5th to the 22nd.
(See http://ir.sco.com/Re
leaseDetail.cfm?ReleaseID=123984)
The offcial reason is that the 50
million investment they received was complicated to book correctlky and the
hired external experts needed more time.
Markus --- Markus
Baertschi, Switzerland [ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 02:04 PM EST |
I am not quite sure if anybody has seen this:
TSG is delaying their earnings report:
http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=123984
Rumor has it, that the Baystar deal wasn't well put in TSG's books. I refer
to:
http://www.heise.de/newsticker/data/anw-07.12.03-004/
Heise is on of the most important german IT-Newssites. They are linking back to
Groklaw as a reference. Quite an honour. They are also linking to sco.com, but
it's about sco, so they better do.
Anyways, great work you all. PJ I am standing in awe.
Florian[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 02:07 PM EST |
Here is an
extremely interesting news item about RBC Financial group (one of the
companies behind the $50 million "investment" in SCO) being linked to
Enron.
A report by court-appointed Enron examiner Harrison J. Goldin
alleged that bank employees acted inappropriately by doing deals the bank knew
were intended to mask the failed energy trading company's true financial
state.
Sound familiar? [ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 04:04 PM EST |
Perhaps, only perhaps, ...
There would be one very simple explanation, why Boies did not
show up in court. - He has not been paid.
Given the amount of false announces that SCO has issued
already and its desperate situation, this scenario might not be
too unlikely.
Especially, as their financial report has been delayed and the
delay has been brought in connection with the payment to Boies
(see http://www.heise.de/newsticker/data/anw-07.12.03-004/).
So what might have happened is that Boies, Schiller & Flexner
have only been promissed the demanded money and stocks, but
did not actually receive them, and now are pressing on SCO by
leaving Darl in the lurch.
If so, Darl hasn't had much choices but to ask his (big?) brother
Kevin (alone in the court) for help. If so, the situation of SCO in
general and Darl's in particular would be ways more desperate,
than we currently imagine.
Anyway, assuming that Mr. McBride, Boies, Bill, Deutsche Bank,
and all the other actors are sitting in the same boat is certainly
not true. They all have their own purpose, and that's not SCO.
Perhaps, only perhaps, some of them might have realized by
now, that Darl has defrauded them and chances to win anything
on his side are few and they're starting to dissociate themselves
already.
A turn of the story so hard to imagine because so unfortunate
for SCO is that Boies will officially resign from his mandate in
near future "for personal reasons".
But this is all spin - isn't it? [ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 04:26 PM EST |
As I understand it, SCO has been claiming that any code IBM adds to AIX becomes
a derivative work, which is covered by their contract for Project Monterey, and
thus that same code can't be contributed to Linux. SCO has claimed that, as a
result, they need to receive the AIX source code in order to identify at least
some of the alleged violations.
Here's the question:
Since the judge told SCO that they must identify the code violations _without_
further information from IBM, does that mean that the judge has rejected SCO's
claim over additions to AIX? In other words, can we surmise that has the judge
has accepted IBM's interpretation of the contract and its addendums?
[ Reply to This | # ]
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Authored by: sam on Sunday, December 07 2003 @ 06:29 PM EST |
Saw this:
http://www.eweek.com/article2/0,4149,1405711,00.asp
Kevin McBride, according to West Legal Directory, has a private practice in
nearby Park City, Utah, where he specializes in litigation and appeals, not
corporate-contract or intellectual-property law.[ Reply to This | # ]
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Authored by: sam on Sunday, December 07 2003 @ 06:34 PM EST |
Is this bad?
http://news.google.com/url?ntc=0M4B0&q=http://www.stuff.co.nz/stuff/0,2106,2
743532a28,00.html
It's sorta what I've been looking for to break the surly bonds of dos. (nod to
phrostie)[ Reply to This | # ]
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Authored by: sam on Sunday, December 07 2003 @ 06:41 PM EST |
Some media has started to pick up the story. What's their source?
You
guessed it.
Groklaw!
http://www.line56.com/articles/default.asp?ArticleID=5208
The
ruling was seen as a boost to open source advocates who feel SCO has been
dragging its heels and looking for a settlement of its claims. The court granted
two IBM motions, requiring SCO to comply with specificity and also suspended
further discovery, according to interrogatories filed at open source advocacy
weblog groklaw.net, which tracks the SCO case.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, December 07 2003 @ 08:36 PM EST |
I incorrectly stated that the mainframe Linux distribution was Redhat. It is
SuSe.
I also appreciate the comment about OS/2. IBM with the PS/2 and OS/2 wanted to
take the PC proprietary. While both may have been technologically superior
(opinions vary), both are history. IBM learns from it's competition, works with
them when necessary, and is in the game for the long term.[ Reply to This | # ]
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Authored by: Kevin on Monday, December 08 2003 @ 12:06 AM EST |
And then, if SCO has an incredibly plausible reason it
can't meet
the deadline, it must file an affidavit explaining why it
can't comply, which
would require more time to resolve, but they would
do this at their
peril.
Let's just work through some hypotheticals
here.
Really, this hearing on the motions was not that big
a
deal. Anyone would realize that compelled discovery in this
situation was
a slam dunk. IBM has every right to a detailed
accusation. So now SCO has to
come up with a detailed accusation,
producing either the
disputed code or an
affidavit certifying that that it can't be
produced and giving the reasons
why..
It seems to me that SCO's next step is to submit such an
affidavit
certifying that it cannot answer at least Interrogatory No. 1.
The
next big - and more important - argument
will come over the arguments advanced
in the affidavit.
Let's assume that SCO simply decided to
abandon the initial
wrangling over discovery and that brother Kevin
(NOT ME! NOT ME! Yes,
my name is Kevin, but my family name is
not McBride!) was there so that
SCO was not "failing to
appear." Instead, let's focus on the bizarre
chain of
legal reasoning that SCO seems to pursued up
until now, presumably that SCO's
affidavit will advance it as an
argument before the Court:
- The
original license agreement that IBM executed had IBM agreeing
to keep all
additions to System-V confidential. (This isn't - strictly
speaking - perjury,
but arguably a difference of opinion about what the
language of the contract
requires.)
- The "treat as part of" clause had IBM agreeing, as part of
the
consideration for the license to use System-V, to grant SCO (via
its
predecessors in interest) the rights in any of IBM's additions to
Unix.
(Again, this is arguably a difference of opinion - not a
perjurious
statement.)
- That agreement made IBM's copyrights, patents,
and trade secrets
in AIX, and Sequent's in Dynix, equitably vest in SCO under
the theory
of Liu. Any patents or copyrights to the contrary
were
granted as a result at least of improper disclosure by IBM and
(if the
consideration argument holds) as a result of improper claims
to ownership, and
are hence properly void.
Since IBM had no right to disclose (and possibly no
ownership
interest in) any material integrated in any way with Unix, the
GPL
that it applied to that material was likewise void. (This point is
nearly
unassailable if we assume the first two. If IBM were actually
a
contractor of SCO, and it released software developed under the
contract -
under GPL or otherwise - attempted to patent or copyright
the software, or claim
the methods as its own trade secret, I would
hope that SCO would have
some equitable regress.)
- SCO had no way of knowing, without
discovery of the content of
AIX and Dynix (to which IBM is inequitably claiming
title), just what
material IBM released under GPL improperly.
SCO is
consequently unaware of what trade secrets, copyrights, and
patents equitably
vest in it.
SCO's own release of any disputed material under GPL is the
result
of its ignorance that material that IBM developed but improperly
failed
to transfer back to SCO was included in the release.
SCO's release of Linux
distributions is hence not evidence of
unclean hands nor grounds for promissory
estoppel. (The ice is thin
here, but again there's nothing factual here on which
you can hang SCO
for perjury.)
Whew! What a tangle! What
a chain of flimsy links!
Nevertheless, however bizarre, it's a legal
theory.
Wouldn't it appear that the
question of whether or not IBM intended to
enter
into the indenture that would result from SCO's interpretation of
the
license agreements is a question for a jury to decide? Moreover, a
great
many of SCO's own statements in the press are arguably
consistent with this
theory (through similarly tortured reasoning); for
instance, the claim of
"millions of lines of literally copied code"
could refer to "the entirety of
IBM's contribution."
My suspicion
is that SCO plans to submit an
affidavit saying that it is incapable
of answering Interrogatory No. 1 and
advancing
this tortuous chain of reasoning.
If Judge Wells were to give it the
reception that it deserves (hysterical
laughter comes to mind as one appropriate
action), then SCO will
immediately file an interlocutory appeal. This
maneuvering would
allow SCO a tremendous amount of additional time to make hay
in the
press while waiting for the appeal to
get on the calendar of the Tenth
Circuit.
Judges don't like having their decisions appealed.
The
alternative, and what I suspect that the Court would do, is to
say, "very well,
SCO, that is your theory. Your discovery requests and
your further filings must
be consistent with that theory, and we'll
let the jury decide whether it holds
water." It'll result in SCO's
case foundering on an even bigger rock later, but
that doesn't matter
to SCO, whose objective in this litigation is to harass, not
to
win.
Someone please tell me that I'm wrong, that this bizarre chain
of
alleged reasoning can be snipped without needing to wait for the
ponderous
motion of the Circuit Court. Otherwise, this mess is going
to drag on far
beyond the original trial date in 2005.
--- 73 de ke9tv/2, Kevin (P.S.
My surname is not McBride!) [ Reply to This | # ]
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Authored by: sam on Monday, December 08 2003 @ 12:37 AM EST |
Darl sure got it wrong then. Judge Wells sorta taught him a lesson in discovery
and how it works. I wonder if he's
disappointed.
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.
[ Reply to This | # ]
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Authored by: dluebke on Monday, December 08 2003 @ 03:48 AM EST |
Hi all!
Thanks for this great chart... It makes following the case easier. However,
could someone please add a top vertical-alignment (<td
valign="top">) to the table cells? I have to scroll up and down a
lot because of the center-alignment and that would fix this. Thanks and keep up
the good work![ Reply to This | # ]
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