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| Exhibit 2 - IBM'S OBJECTIONS AND RESPONSES TO REQUESTS FOR ADMISSIONS |
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Saturday, February 07 2004 @ 05:41 AM EST
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Here are IBM's Objections and Responses to Requests for Admissions. SCO asked IBM to admit up front that AIX and Dynix are derivative works of System V. Given SCO's unique definition of "derivative work", IBM naturally said no. Prove your theory.
Note the new attorneys listed at the end (Leonard K. Samuels, Esq. and Fred O. Goldberg, Esq. of Berger, Singerman, which are names I don't recall) and Amy Sorenson is now listed at the beginning with Snell & Wilmer.
The PDF is here: http://www.groklaw.net/pdf/Doc-101-2.pdf
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SNELL & WILMER LLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Couterclaim-Plaintiff.
DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S RESPONSES
AND OBJECTIONS TO SCO'S
FIRST REQUEST FOR
ADMISSIONS
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
Defendant/Counterclaim-Plaintiff International Business Machines Corporation ("IBM"),
by its undersigned attorneys, hereby responds and objects to Plaintiff/Counterclaim-Defendant
SCO's First Request for Admissions as follows:
OBJECTIONS AND RESPONSES TO REQUESTS FOR ADMISSIONS
---------------------------------------------------
REQUEST FOR ADMISSION NO. 1: AIX is a derivative work of Unix System V.
RESPONSE TO REQUEST FOR ADMISSION NO. 1: IBM objects to this request
for admission on the grounds that it fails to define the terms "AIX", "derivative work" or "Unix
System V". There is more than one potential meaning of these terms, at least in the context of
this case, and IBM's response to this request may differ based upon the applicable definition.
There is, for example, more than one version and/or release of both AIX and Unix System V. To
the extent a response is required pending SCO's definition of these terms, IBM denies this
request for admission.
REQUEST FOR ADMISSION NO. 2: Dynix is a derivative work of Unix System V.
RESPONSE TO REQUEST FOR ADMISSION NO. 2: IBM objects to this request
for admission on the grounds that it fails to define the terms "Dynix", "derivative work" or
"Unix System V". There is more than one potential meaning of these terms, at least in the
context of this case, and IBM's response to this request may differ based upon the applicable
definition. There is, for example, more than one version and/or release of both Dynix and Unix
System V. To the extent a response is required pending SCO's definition of these terms, IBM
denies this request for admission.
DATED this 3rd day of November, 2003.
SNELL & WILMER LLP
________________________________ [signature here]
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Counsel for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Amy F. Sorenson (8947)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Couterclaim-Plaintiff.
THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Couterclaim-Plaintiff.
CERTIFICATE OF SERVICE OF
DEFENDANT/COUNTERCLAIM-
PLAINTIFF IBM'S RESPONSES AND
OBJECTIONS TO SCO'S FIRST
REQUEST FOR ADMISSIONS
Civil No. 2:03cv0294
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
I hereby certify that on the 3rd day of November, 2003, a true and correct copy of
DEFENDANT/COUNTERCLAIM-PLAINTIFF IBM'S RESPONSES AND OBJECTIONS TO
SCO'S FIRST REQUEST FOR ADMISSIONS was hand delivered to the following:
11-3-03 [hand-written on bottom of page 3]
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
and sent by U.S. Mail, postage prepaid, to the following:
David Boies
BOIES, SCHILLER & FLEXNER LLP
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Leonard K. Samuels, Esq.
Fred O. Goldberg, Esq.
BERGER SINGERMAN
[address]
SNELL & WILMER LLP
________________________________ [signature here]
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler
David R. Marriott
Counsel for Defendant/Counterclaim-Plaintiff International
Business Machines Corporation
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| Authored by: Alastair on Saturday, February 07 2004 @ 06:10 AM EST |
Given SCO's unique definition of "derivative work", IBM
naturally said no. Prove your theory.
Well they haven't
quite said “no, prove your theory”. It was
more of
a
“We aren't going to answer until you say what you mean
by
‘derivative work’, and what exactly you're referring to when
you
say ‘AIX’ or ‘Dynix’, because our answer depends
on what you are actually asking.”
which was what I was
expecting them to say. I'm surprised that SCO
haven't defined these terms
already, given the number of times IBM have
complained that they are unclear.
Then again, perhaps they just want to
delay; they certainly seem to have a
motive for doing so. [ Reply to This | # ]
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| Authored by: belzecue on Saturday, February 07 2004 @ 06:14 AM EST |
Line ends are fixed in this doc, and this is screwing up the formatting in my
browser. Normally these transcribed docs flow nicely according to the window
size...[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 07:02 AM EST |
| I hope people are taking not of the VIRAL nature of SCO's commercial licensing. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 07:16 AM EST |
Waiting for exhibit 4 (the list of files) ... :-)
Jochen Wiedmann
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 07:23 AM EST |
PJ,
Either you've been up all night, or you got less than 4
hours sleep. Either way, thank you, these will keep us
going for a while. Now GO GET SOME MORE SLEEP!!!!!
Please :-)
John. [ Reply to This | # ]
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| Authored by: rjamestaylor on Saturday, February 07 2004 @ 08:14 AM EST |
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Another character assassination. He's trying to understand and explain the
reason people write viruses. Unfortunately, he stops at petty revenge and
forgets the more compelling reason of greed and criminal profiteering.
---
SCO delenda est! Salt their fields! [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 08:20 AM EST |
I just realized something. Maybe it's old news to others with a better
understanding of law.
I'm reading SCO's response to / and / IBM's counter claims against SCO. IBM
claims that SCO is violating IBM's GPL contributions. If IBM prevents SCO from
withdrawing the suit, then IBM can put up every line of code that IBM has
contributed to Linux and that SCO has distributed. Every line is evidence of
SCO's violation of IBM's GPL ownership. SCO could only refute the evidence by
proving its geneology leads back to something SCO owns.
In this way, IBM can force SCO to reveal any lines of code in Linux that
actually are infringing, and force SCO to reveal it to the whole world.
Did I read this right? Or am I dumb in just realizing this now?[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 08:41 AM EST |
SCO is ignoring the USL vs BSDI suit with these very broad claims against IBM.
SCO does not OWN UNIX.
Even NOVELL has a problem with owning UNIX (per their claims about SCO's lack of
patents and copyrights, that remained with NOVELL and never transfered to SCO in
the first place).
These questions get back to the history of UNIX folks.
Most likely it is a line by line, code related battle when they get into this
subject area. And IBM seems to be sitting in a good place with their history
of knowing what they have done all thru the history of IBM's existance (cleam
room rules, etc)! This is not a dumb freshman that SCO is playing with. It is
IBM, an IBM that is the text book model of Computer related IP law application
techniques. If IBM is not doing it right, then is anyone?
It looks like SCO is not just interested in IBM's inventions. It semms that SCO
is also looking to try the USL vs BSDI suit all over again.[ Reply to This | # ]
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- OBJECTIONS - of course, SCO does not OWN UNIX - Authored by: Anonymous on Saturday, February 07 2004 @ 09:08 AM EST
- OBJECTIONS - "derivative work" of what that SCO, oops NOVELL, really owns? - Authored by: Anonymous on Saturday, February 07 2004 @ 09:13 AM EST
- Novell turning over copyright, et.al. - Authored by: Anonymous on Saturday, February 07 2004 @ 11:30 AM EST
- OBJECTIONS - "derivative work" of what that SCO, oops NOVELL, really owns? - Authored by: Gruntmaster6000 on Saturday, February 07 2004 @ 12:03 PM EST
- Novell and the GPL - Authored by: Christian on Saturday, February 07 2004 @ 01:13 PM EST
- "Novell punched in nose by Linux community to prevent possible future 'not nice' actions" - Authored by: Gruntmaster6000 on Saturday, February 07 2004 @ 04:03 PM EST
- OBJECTIONS - "derivative work" of what that SCO, oops NOVELL, really owns? - Authored by: MrEd on Saturday, February 07 2004 @ 05:47 PM EST
- NOT like BSD, and it's NOT about derivative works - Authored by: Anonymous on Saturday, February 07 2004 @ 09:28 AM EST
- OT: Novells nuclear option? - Authored by: geoff lane on Saturday, February 07 2004 @ 11:07 AM EST
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| Authored by: Anonymous on Saturday, February 07 2004 @ 08:43 AM EST |
PJ, please -- request for a comparison document. Similar to the two-way
comparison you did earlier.
In this case it would be:
1. IBM's counterclaims
2. SCO previous response to each counterclaim
3. SCO's proposed amended response
I did a cursory examination of 3 from your old story, and there are some truly
BIZARRE things in there.
For example, in IBM's copyright counterclaim.
SCO seems to say they deny that IBM has the right to copyright IBM's own work!
I wonder if this is a new invention (?)[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 09:37 AM EST |
It would be nice to identify the central objectives of the case in order to help
understand its progress.
Do we have enough material to identify just one single objective for each
antagonist? I read from Friday's material that IBM wants a win to block future
Linux IP lawsuits. SCO, at this point, just wants to survive with its ability
"license" Linux.
IBM is betting its future business on Linux, and wants a playing field free from
hazards of future lawsuits against Linux users by SCO, their sucessors, their
predecessors, or anyone else. They are broadening the current case to show no
infringing code at all by anyone. They want to adress SCO's public FUD and the
"truckloads" of code.
SCO needs to confine the case to narrow contractual issues so that a loss won't
preclude future lawsuits against Linux users. They can't show code because they
can't afford to have some found to be non-infringing. On the other hand, even a
narrow win on contractual grounds will establish a fear factor for license
marketing.
- Harry[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 09:46 AM EST |
Anybody looking for some light relief?
Yankee Group comments on Feb 6:
http://www.technewsworld.com/perl/story/32791.html[ Reply to This | # ]
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| Authored by: Scott_Lazar on Saturday, February 07 2004 @ 10:14 AM EST |
I'm entirely kidding about this, but
Sounds like Frank (Sorenson) finally got tired of trekking to the courthouse for
documents and took the expediency of having a member of his family join the one
of the legal teams (Amy Sorenson). No more fetching. Well done Frank!
(teasing).
Scott
---
LINUX - Visibly superior![ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 10:56 AM EST |
Hate to say it, but this is actually a little thin on IBM's part. They're
skirting the derivative issue on a technicality (e.g. ambiguous OS versions).
IBM should really be confronting SCO head-on with respect to the contractual
definition of "derivative". They've already asserted in previous
filing that they disagree with SCO's interpretation of the APA, amendments &
side letters - they should be forcing this issue with the judge, instead of
letting SCO continue to play its little games. They should go for the jugular;
exactly what constitutes a "derivate work" is at the heart of SCO's
case (or more precisely, what's left of it) and all the evidence is in IBM's
favor.
Or, is IBM trying to pull an SCO, and slow down the pace of the proceeding even
further. IBM clearly isn't too upset with the pace of the proceedings - every
day yields more SCO press releases; more rope with which to strangle themselves.
I'm getting the impression that IBM is all too happy to oblige.
Fruity [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 11:33 AM EST |
This is OT, but I think it's important to point out one of the things the stock
market does: it transfers wealth from those making incorrect predictions to
those making correct predictions. This is especially true if you look at long
term trends.
If you understand this, it really a wonderful thing in regard to the SCOX
phenomenon. I hope SCOX goes *higher*. I hope it goes *real* high. Because,
then when it collapses this will effect a massive transfer of wealth from SCO's
supporters and FUD-believers to those who knew this was baloney and shorted the
stock. All the people who thought "hey! this company is going to beat up
all these hippies and 'monetize' linux!" will have all their wealth
transferred to those who thought "this is nonsense... this company has no
product..." and to those who understood exactly why the case was nonsense.
Of course, a few speculators on both sides (long and short) will also make
money, but the speculators are kinda the sideliners when it comes to real moves
in the markets.
[ Reply to This | # ]
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| Authored by: arch_dude on Saturday, February 07 2004 @ 12:28 PM EST |
IBM is correct to point out that all four of the relevant terms (DYNIX, AIX,
derived, Unix system V) in SCOG's statements are poorly defined.
In particular the term "DYNIX" is not merely ambiguous, it is
completely incorrect.
Sequent created two Unix operating systems, DYNIX and DYNIX/ptx. DYNIX derived
from BSD. DYNIX/ptx derived from DYNIX with some SVRx code added.[ Reply to This | # ]
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| Authored by: henrik on Saturday, February 07 2004 @ 01:17 PM EST |
Leonard K. Samuels, Esq. and Fred O. Goldberg, Esq. of Berger, Singerman are
named in
IBM's
Memorandum in Support of Motion to Compel Discovery[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 04:55 PM EST |
Through agreements with UNIX vendors, SCO controls the right of all
UNIX vendors to use and distribute UNIX. These restrictions on the use and
distribution of UNIX are designed to protect the economic value of
UNIX.
I was always under the impression that the restrictions on
the use and distribution of UNIX were designed to prevent anyone from getting
the impression that AT&T were in the computer business, thus allowing them
to continue their monopoly on the phone business
(obligatory obscure and
irrelevent reference:
The President's Analyst, in which The Phone Company plays a large part) [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 05:00 PM EST |
3. A variant or clone of UNIX currently exists in the computer
marketplace called “Linux.” Linux is, in material part, based upon UNIX source
code and methods.
Isn't this what they're supposed to be trying
to prove? How can they just assert it?
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, February 07 2004 @ 05:21 PM EST |
54. At this point in time, IBM's UNIX expertise was centered on its
own Power PC processor. IBM had little or no expertise on Intel
processors.
I'm pretty curious about this assertion, variants of
which appear all over SCO's suits. IBM had more Unix experience than SCO
asserts; the Unix timeline here
shows:
- IBM IX/370 ca 1985
- AIX RT 2 ca 1986 (the first IBM Unix I heard of, but then I'm
neither an IBM fan or a Unix greybeard)
- AIX PS/2 1.1 ca 1989, shortly
after SCO's 1987 Xenix System V/386
Basically, it looks to me like IBM
had plenty of Unix experience on a variety of architectures; I'm having a hard
time understanding precisely what IBM needed from SCO for the Monterey project. [ Reply to This | # ]
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