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| SCO Replies to IBM's Letter About Missing Discovery Items - Exhibit 3 to IBM's Report on SCO's Compliance |
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Tuesday, February 10 2004 @ 10:22 AM EST
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This is SCO's letter in reply to IBM's January 30, 2004 letter providing SCO with a list of discovery items SCO needed to produce before the hearing if it wished to avoid discussing them with the judge, and it's Exhibit 3 attached to IBM's Report on SCO's Compliance. Our thanks to rakaz for the transcript.
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Boies, Schiller & Flexner LLP
February 4, 2004
Via Telecopier
David R. Marriott
Cravath Swaine & Moore LLP
[address]
Re: SCO v. IBM
Dear Dave:
This letter responds to the letter dated January 30, 2004 sent from Todd Shaughnessy at 8:15 p.m. As I previously mentioned, because of the late delivery on that Friday evening, I did not get his letter until Monday and was not able to begin collecting information to provide a detailed response until Monday afternoon. As a matter of convenience, I will follow the format of Mr. Shaughnessy's letter.
Mr. Shaughnessy first protests a quote that was attributed to Mike Darcy of IBM. According to a technology column in The Daily Herald dated January 24, 2004 , Mike Darcy was quoted as follows:
SCO failed to comply with the court's order to fully answer IBM's interrogatories and requests for documents by Jan. 23. SCO has now agreed to provide additional responses, so the Court has agreed to postpone the hearing until February 6, to give SCO additional time to reply.
I don't understand Mr. Shaughnessy's dispute with this quote and in particular the fact that Mr. Darcy mentioned January 23. The significance of this statement is that, sometime before Mr. Darcy was quoted, IBM had determined that SCO had not complied with the Court's order. Because
IBM was willing to share this view with the media, I simply inquired if IBM would share with SCO what it perceived was deficient about SCO's discovery responses. If IBM had determined by January 23 that SCO's discovery responses were deficient and was willing to publicly state as much, it only seemed appropriate that it also would relate those concerns to SCO.
Rather than simply disputing the quote and moving on, Mr. Shaughnessy further attempts to defend it by claiming that all documents had to be produced by the January 12 deadline and that "on January 12, SCO informed IBM that it had been unable to complete its production on time, but would do so 'within the next few days.'" This is not the first time that Mr. Shaughnessy has misstated what occurred between counsel. As you will recall, I informed you prior to the January 12th deadline that there were difficulties in obtaining all of the documents during the holidays and that certain documents were not going to be completed by that deadline. On January 12th, I confirmed that additional time was needed to complete review and production of documents from certain individuals. I estimated it would be completed within a few days. In fact. SCO filed a Declaration with the Answers in this regard. When I thereafter learned that it would take more time, I immediately notified you of this fact on January 15, 2004, and estimated that, based on the volume of material to be reviewed, it would require approximately two weeks longer than I had previously informed you. Thus, Mr. Shaughnessy simply mischaracterizes the sequence of events. He has done this in correspondence in the past, including with the Court, and we would appreciate if you would restrain him from making incorrect statements in this case.
Turning to the substantive aspects of the letter, I will first address your critique of the interrogatory responses.
First, IBM claims that SCO has failed to identify any files or lines of code in its own UNIX System V product that IBM is alleged to have misappropriated or misused. This theme of a purported lack of identification of System V code is repeated throughout IBM's letter in an attempt to disparage the quality of SCO's supplemental answers to interrogatories. The problem is that this idea ignores some basic facts. For example, AIX contains over 1000 files that have attribution to AT&T. Indeed, it is because AIX is replete with AT&T code that IBM requires that any company that wanted to view AIX must obtain permission from AT&T (and eventually SCO). If AIX was not filled with this AT&T code there would be no reason for IBM to require such permission. As a result of these facts, it is clear that AIX and Dynix are modifications of or derivative works based on System V. IBM, accordingly, was obligated treat AIX and Dynix as it agreed to do in the respective license agreements. IBM did not and that is what is detailed in the revised supplemental answers.
Without re-pleading the Amended Complaint in this letter, SCO has in fact identified IBM's misuse of the Protected Materials under the IBM Related Agreements and Sequent Agreements. The revised supplemental answers go into excruciating detail as to such misuse. IBM keeps insisting on something that is not part of SCO's claims, so it should come as no surprise that files or lines of code in System V have not been identified. Moreover, this latest concern is belied by the language in IBM's proposed order on the Motion to Compel when IBM itself wanted SCO to provide "the exact location in Unix System V or elsewhere were [sic] such information is found or expressed. . ." SCO, in fact, has done so.
Second, IBM claims certain of SCO's answers are deficient because they do not provide the detail of particular lines of code for selected technologies (A/I/O, SMP, etc.). IBM also protests that the Dynix/ptx/RCU files identified in Table A do not specify the line for line matches. As set forth in our Supplemental Answers to Interrogatories, the code comparisons for the items that appear in Table A appear throughout the entire file, so we have not matched the lines in Dynix that IBM provided to Linux and that now appear in Linux. Similarly, your criticisms about the failure to identify lines of code in A/I/O, scatter/gather input/output and SMP ignore what SCO stated in its answers to interrogatories and the Declaration of Ryan Tibbitts. As detailed therein, SCO specifically noted that it needs the full production of source code from IBM. See Revised Supplemental Answers, pp. 13-17, 26-30. Without the underlying source code from AIX and Dynix, SCO quite obviously cannot identify the lines of AIX and Dynix that match to IBM's contributions of those lines of code in Linux. Until IBM provides this complete information, which it had only begun to do before discovery was stayed, SCO is not in a position to further answer with respect to the aforementioned technologies.
Third, IBM claims SCO has failed to answer Interrogatory No. 2 that asked for the nature and source of SCO's rights in the alleged trade secret or confidential or proprietary information identified in response to Interrogatory No. 1. Again, IBM is ignoring what has been clearly stated throughout this case, both in the Amended Complaint as well as the Answers to Interrogatories. SCO's rights arise from the IBM Related Agreements and the Sequent Agreements. In these documents, there are very clear restrictions and prohibitions on IBM's use of AIX and Dynix, all of which are detailed in the answers.
Fourth, IBM claims that SCO did not respond to Interrogatory No. 2 regarding the identity of all persons who have or had rights to the alleged trade secret or confidential or proprietary information. Again, IBM is attempting to change the scope of the claims asserted under the license agreements. SCO has answered the question as asked and as appropriate in light of the claims asserted against IBM. Moreover, to the extent IBM now wants to know all of the persons or entities that had a license to System V, and the terms and conditions of those agreements, that information is set forth in the license agreements that have been produced in this litigation. At this point, the Interrogatory asked SCO to identify all persons who have or have had rights to the alleged trade secret or confidential or proprietary information identified in response to Interrogatory No. 1. SCO has in fact identified those people in response to Interrogatory No. 2.
Fifth, IBM criticizes SCO's response to Interrogatory No. 3 claiming SCO failed to identify persons or entities (other than IBM or Sequent) to whom it (presumably meaning SCO) has disclosed any of the UNIX System V or Linux code at issue in this case. IBM then makes reference to the fact that SCO has shown code to investors, analysts and others under an NDA.
Again, IBM's criticism does not track the language of Interrogatory No. 3. In that question, IBM actually asked to 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. We have answered that question. Regarding your comment of SCO's public statements that it has shown code that was improperly contributed to Linux, we have in fact provided that information. First, as has been stated on repeated occasions and which was reiterated in SCO's Answers to Interrogatories, the direct line-for-line copying of System V code that SCO has found was not contributed by IBM, but instead was contributed by Silicon Graphics. That code was provided to IBM in response to the Answers to Interrogatories and can be found at tab Exhibit A-2 and Exhibit A-4. However, reference to that code is not responsive to this question because this question is limited to IBM's improper actions, not those of others.
Sixth, IBM has attempted to reframe Interrogatory No. 3(d), which asks for all places or locations where the alleged trade secret or confidential or proprietary information may be found or accessed. SCO has done so. In response to that question, SCO noted that the tables and extensive tabbed exhibits specifically mark where the information is located in Linux. Indeed, in IBM's proposed order, IBM previously wanted to know where in Linux or other software such information may be found, including the version and release of the software, the file and the line of code therein. The tables and tabbed exhibits provide this detailed information.
Moreover, regarding IBM's specific comment that SCO must identify where on its website and in which SCO products the Protected Materials may be found or accessed, that has been done. As indicated in response to Interrogatory Nos. 3 and 13, the Protected Materials would be found in any other product that contains Linux 2.4 kernel or above and SCO distributed the Linux 2.4 kernel and above for a brief period of time in SCO Linux server 4.0. Moreover, we provided you with the invoices that laid the terms under which these materials were made available.
The commentary that IBM believes there are other products that SCO distributed or made available containing such code is incorrect. Specifically, IBM's claim that the Linux 2.2.12 kernel contains infringing code and therefore SCO must produce all products in which it distributed the Linux 2.2.12 kernel is simply incorrect. Using the instance of IBM's improper contributions of JFS to Linux, IBM certainly is aware that it appeared as a patch in Linux 2.2.12. However, JFS was not accepted into the “official” Linux source tree until Linux 2.4.20. Therefore, although IBM publicly displayed JFS in violation of the IBM Related Agreements as early as Linux 2.2.12, JFS did not become a standard part of Linux until 2.4.20. In other words, prior to Linux 2.4.20, the only Linux distributions that included JFS were ones that had downloaded JFS from IBM's website and added it to that distribution. SCO did not do so therefore, contrary to Mr. Shaughnessy's statement, Caldera Open Linux 3.1 did not include IBM's improper public display of JFS.
Seventh, contrary to the accusation, SCO has responded to Interrogatory No. 5(b) and identified all copyrights relating to the alleged trade secret or confidential or proprietary information identified in response to Interrogatory No. 1. To SCO's knowledge, there are not third party copyrights in those materials. If IBM is aware of such copyrights, please identify them for SCO and the answer will be supplemented.
Eighth, IBM is concerned about SCO's response to Interrogatory No. 12 in which IBM asked SCO to identify all source code and other material in Linux to which Plaintiff has rights. In particular, IBM is concerned that SCO failed to identify by line XFS code improperly contributed to Linux in violation of SGI's license agreements. As set forth in SCO's revised and Supplemental Answers, XFS is a journaling file system developed by SGI and used in SGI's IRIX operating system, which was subject to SGI's license agreement with SCO and its predecessors. SCO identified each of the XFS files that were contributed. The reason SCO has not identified specific lines in the files set forth in our Revised Supplemental answers is, as was set forth on page 66 of the answers, SCO has not had access to versions of IRIX to compare and identify the IRIX/XFS files and lines of code to then identify those same lines as they appear in Linux. With respect to the ABI files, I am not sure what the concern is about SCO's alleged failure to identify by line the improper contributions. In Exhibit B to the Revised Supplemental answers, the tabbed exhibits clearly identify the lines that were improperly contributed.
Mr. Shaughnessy concludes this section by commenting that “SCO additionally fails to describe whether, when, to whom and under what circumstances and terms, it ever distributed the ABI files and the XFS of those code.” Interrogatory 13 and IBM's proposed order were directed to distribution of IBM's infringements, not the improper contributions of others. Accordingly, SCO provided the answer as set forth in Interrogatory 13.
Regarding IBM's concerns over SCO's document production, we will likewise address those matters seriatim. Under the heading “First”, Mr. Shaughnessy identified thirteen categories of documents. Each of those is specifically addressed below.
(1) “The Linux intellectual property licenses SCO has publicly claimed it has sold to at least ten companies.” At this juncture, I am only aware of a license with Computer Associates, Questar and Leggett & Platt. The Computer Associates document was collected and approved for production, but the third party vendor being used for this document production did not burn the image on a CD. We, of course, will produce this document. The remaining documents were received by the client well after the collection of documents took place and therefore was not included in the production. We will produce this document as well.
(2) "The letters SCO sent to Unix licensees, Linux end-users and Fortune 1500 companies regarding Linux and/or AIX, or any responses it received to such letters.” Regarding the letters sent in May and December 2003, there is only the form letter, which obviously you have downloaded from SCO's website, and the distribution list. There are not copies of all 1500 letters that were sent out. The form letter was previously produced at Bates 1269622-1269623. In addition, to the extent you want the distribution list used for the mail merge, we can provide this as well.
The December letter was created after the documents were collected from SCO, so it would not have been in production. Again, although you already have a copy of the form letter, we will provide it if you want it.
Regarding the responses to each of these letters, SCO will check to see if it received any responses to the May letter. To the extent it has received responses to the December letter, those responses obviously were received after documents were collected form the client. To the extent you want these responses, we can collect those documents and provide them to you as they are kept in the ordinary course of business.
(3) “The letters SCO sent to members of Congress regarding Linux or any responses it received to such letters.” As you know, this letter was sent January 8, 2004 , so it was well after there was any collection of documents from the client. The client apparently does have copies of each of these individual letters, so if you would like to have those documents, we will produce them to you.
(4) “SCO's customer contracts with which IBM is alleged to have interfered (including at least its contracts with Auto Zone, Sherwin Williams and Target).” The Sherwin Williams contract has been produced and can be found at Bates Nos. 1299855-1299865. We are further investigating if other portions were produced elsewhere in the production. As to Auto Zone and Target, they should have been produced. If they were not produced, I will make arrangements to have them produced immediately.
(5) “The code comparisons shown by SCO to financial analysts and others pursuant to a non-disclosure agreement.” This document was located in Chris Sontag's files. Apparantly, the document had notations on it that caused it to be designated as privileged. This designation of privilege was in error and the document will be produced.
(6) “The code comparisons performed by consultants retained by SCO, the results of which were publicly discussed by SCO.” These documents were created by consulting experts who have not been designated to testify in this case. As a result, such documents are protected from disclosure under Rule 26(b)(4).
(7) “Documents concerning the creation and development of its Unix products.” These documents can be found throughout e-mail and correspondence in the materials provided. In addition, design documents can be found extensively throughout CD 144.
(8) “The pleadings, deposition transcripts and deposition exhibits from UNIX System Laboratories, Inc. (“USL”) suit against BSD.” SCO does not have such documents in its custody, control or possession.
(9) “The documents concerning SCO's suit against Microsoft, Inc., including at least a copy of all discovery requests and responses in the case.” As we previously mentioned, SCO was not a party to this litigation and does not have possession of such documents. Moreover, as we related to your colleague Peter Ligh in May 2003, the documents in the Canopy Group's possession were destroyed pursuant to Court Order issued in that unrelated litigation. Our understanding, however, is that Microsoft or its lawyers may still have the documents you are seeking, so you may wish to contact them.
(10) “The exhibits to the August 1, 2000 agreement between Caldera Systems, Inc. and Santa Cruz Operation.” To the extent that such documents are in the possession of SCO, IBM is certainly entitled to such documents. We will undertake an additional search to attempt to locate them and thereafter produce them.
(11) “Documents concerning the acquisition of USL by Novell, Inc.” Any such documents in SCO's possession have been produced. Nonetheless, SCO will undertake further investigation to attempt to locate such documents. A preliminary investigation reveals that this document may be one of the problem documents in CD 196, which is discussed in further detail below. In any event, we will provide this document.
(12) “SCO's educational materials concerning Linux, the GPL, and its open source development activities.” There are several issues with this item. First, as with many of the foregoing items IBM has listed, Fed.R.Civ.P. 34(b) requires that parties produce documents either as they are kept in the ordinary course of business or label them to correspond to specific requests. In large scale litigation like this, parties typically produce the documents as they are kept in the ordinary course of business. Thus, to the extent any such materials have been produced, they are found in many different files. One such person with documents responsive to this request would be Andy Nagle. Educational documents in Mr. Nagle's possession are further found at Bates Nos. 1307625-1307643; 1307686-1307714; 1307644-1307665; 1307680-1307685. I am providing you with this information despite the fact that nowhere in IBM's First or Second Request for Production did it ask for educational materials.
(13) “Documents concerning the GPL.” As with item 12, to the extent there are e-mails, correspondence or other documents located in various files regarding the GPL, they have been produced and can be found as they are kept in the ordinary course of business. There are, however, specific responsive documents that may be found at Bates Nos. 1297464-1297486; 1182904-1182908.
Under your heading for “Second,” IBM identified four individuals from whom you have not received documents -- Gregory Blepp, Philip Langer, John Maciaszek and Porter Olsen. As to Gregory Blepp, his documentation was not produced because IBM had sought to limit production in this case to persons in the United States. SCO agreed to this limitation if it was reciprocal and provided that no work on AIX, Dynix or Linux occurred outside the United States . No work on AIX, Dynix or Linux occurred while Mr. Blepp was at SCO and furthermore he is located outside the United States. As a result, his files were not collected. If you would like to revisit the limitation originally raised by IBM, we will collect any non-privileged responsive documents from Mr. Blepp. As to Philip Langer, there are no documents. As to Porter Olsen, he was a junior employee who left SCO in November. SCO previously attempted to obtain his documents but did not recover any. I will have to try again to recover any responsive documents. As to John Maciaszek, his documents had been collected and we believed had been produced. However, upon seeing your observations that his document had not been produced, we discovered that the third party vendor had not included his and about 20 other persons' information in the queue to be produced. As a result of IBM's prioritizing certain individuals, such as Darl McBride and Chris Sontag, and thereafter identifying directors and officers of the company from whom IBM immediately wanted documents, this batch of collected documents was set aside and apparently never incorporated into the CDs to be produced. We are making arrangements to have these documents produced on a expedited basis.
As to your concern about documents from those individuals who were produced and, in particular, the fact that attachments do not appear for each of the e-mails, the system only produces the attachment to the e-mail one time. Thus, if an identical attachment appears multiple times at different e-mails, it will only be produced one time. As to your concern about Darl McBride not having produced “sent' e-mails, he infrequently sends e-mails. Nonetheless, based upon IBM's comments and the expectation that there would be at least some sent e-mails, we further investigated why sent e-mails for others have not been produced. Apparently, only some of the “sent” e-mails were on the servers of SCO. The sent e-mails for some executives apparently are not on the server and instead are only located on their individual machines. SCO has already begun the collection process to obtain the “sent” e-mails as expeditiously as possible and, to the extent such e-mails are available, they will be produced.
Under the heading “Third”, Mr. Shaughnessy identifies various releases of software it claims have not been produced and then concludes that SCO was previously able to produce the missing source code for a number of these programs in paper form. As an initial matter, any source code that was produced in paper form came from a CD and therefore has been produced. I think the confusion may have arisen from a typographical error. The source log shows UnixWare 7.0.3 being delivered in the first delivery. It should have said UnixWare 2.0.3, which has been redelivered.
More specifically addressing the items listed, I have set forth a chart below detailing a response to each of your concerns. As you can see, we have already produced all such source code in our possession and have identified for you in which CDs you may find such source code. There are four items that were not previously produced and have now been located will be produced. First, Volution Manager, which was an obsolete optional product, has been located and will be produced. Because this was the first time you asked for such source code by name, no effort was previously made to attempt to locate this obsolete product. Second, for the Unix System V Release 4.0MP Intel i386 version, Unix System V Release 4.1 3 B2 version and Unix System V Release 4.2es/MP Intel i386 version, SCO did not have these in its source code library, which is why they were not discovered earlier. However, further investigation revealed they were located in a separate server and have made arrangements to produce those documents.
| Missing per 1-30 letter |
Notes |
Production CDs |
| Open Linux 1.0 |
Not available |
NA |
| Open Linux 2.4 |
AKA eDesktop 2.4 |
81s, 82b |
| SCO Open Desktop Release 3 |
Delivered |
54s |
| UNIX Version 1 |
SCO does not have this source code |
NA |
| UNIX Version 2 |
SCO does not have this source code |
NA |
| UNIX Version 3 |
SCO does not have this source code |
NA |
| UNIX Version 4 |
SCO does not have this source code |
NA |
| UNIX Version 5 |
SCO does not have this source code |
NA |
| UNIX Version 8 |
SCO does not have this source code |
NA |
| UNIX Version 9 |
SCO does not have this source code |
NA |
| UNIX Version 10 |
SCO does not have this source code |
NA |
| UNIX System IV |
SCO does not have this source code |
NA |
| UNIX System V Release 2.1 |
AKA System V2.1 3B2 |
95s |
| UNIX System V Release 3.1 |
AKA System V Release 3.1 |
96s |
| UNIX System V/386 Release 3.2 |
AKA System V Release 3.2 i386 |
96s |
| UNIX System V Release 4.1 MP |
Not a valid release number |
NA |
| UNIX System V Release 4.2, Intel 386 implementation |
AKA UnixWare 1.1 |
148s, 111scp, 151b |
| UNIX System Release 4.2 MP, Intel 386 implementation |
AKA UnixWare 2.0.3 |
147s, 156scp, 152b |
| Unix System V 4.2 ES/MP |
virtually the same as UW 2.0.3 |
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| UnixWare 7.0.3 |
Mislabeled on first delivery, should have been UnixWare 2.0.3, was redelivered in source |
139s, 98scp |
On the item listed as “Fourth,” I have been corresponding and speaking with Christopher Kao of your office regarding CDs 196, 211 and 212. With respect to CDs 211 and 212, there was simply a technical error with the vendor and those CDs have been re-burned and I will send those corrected CDs. As to CD 196, it appears that certain documents were marked privileged that should not have been marked privileged and, conversely, privileged documents were not marked as privileged. We are fully investigating this CD and will issue a replacement CD once we are able to electronically correct this error.
Please feel free to call if you have any questions.
Very truly yours,
[signature]
Mark J. Heise
MJH/vb
Cc: Brent O. Hatch, Esq. (via telecopier)
Todd Shaughnessy, Esq. (via telecopier)
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 11:08 AM EST |
This one relates to the SCO v Novell Case.
Interesting reading...[ Reply to This | # ]
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| Authored by: Mark Levitt on Tuesday, February 10 2004 @ 11:12 AM EST |
OK, SCO says:
(6) “The code comparisons performed by consultants retained by SCO, the
results of which were publicly discussed by SCO.” These documents were created
by consulting experts who have not been designated to testify in this case. As a
result, such documents are protected from disclosure under Rule 26(b)(4).
And Rule 26(b)4 says:
(B) A party may, through interrogatories or by deposition, discover facts known
or opinions held by an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation for trial and who is
not expected to be called as a witness at trial, only as provided in Rule 35(b)
or upon a showing of exceptional circumstances under which it is impracticable
for the party seeking discovery to obtain facts or opinions on the same subject
by other means.
Am I misreading this? It seems that the rule says exactly the opposite of what
SCO says. I.e., the rule says they IBM can request this and SCO says they can't.
[ Reply to This | # ]
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| Authored by: Steve Martin on Tuesday, February 10 2004 @ 11:22 AM EST |
“The documents concerning SCO's suit against Microsoft, Inc.,
including at least a copy of all discovery requests and responses in the case.”
As we previously mentioned, SCO was not a party to this
litigation and does not have possession of such
documents.
EXCUSE ME?? Did my eyes
deceive me? Did SCO just outright LIE?
---
"When I say something, I
put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: wllacer on Tuesday, February 10 2004 @ 11:25 AM EST |
Point 8 of IBM request: USL vs BSD case
Who can McBride talk about what is or not in the settlement, as they say they
have NO documents about the case ?
Point 9 of IBM request: Caldera vs MSFT (DR-DOS case)
My memory may fail, but i thougth Caldera xxx was the plaintiff there. Anyone
knowledgable ?
Point 10 Caldera / Santa Cruz Operations deal
Can they not provide/ will they not provide ASAP, their PRIMARY document in
which to base their "ownership". Smells fishy
and
Funny the list of source versions of ATT UNIX they don't have. Wait a minute
... Didn't they (under Ransom Love) released them under a BSD licence, in their
own FTP server ooops ;-)
And why didn't IBM asked for System III. IIRC somebody at the Unix Heritage
Society, turned a copy of it to Caldera.
[ Reply to This | # ]
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| Authored by: dkpatrick on Tuesday, February 10 2004 @ 11:27 AM EST |
IBM says "tell us what the infringing lines are." SCO says we can't do
that without all the historical information.
SCO is putting the cart before the horse but I think they are doing it as part
of their agenda.
Assuming SCO could show the purported infringing lines of code exist in AIX
today, THEN they could request discovery on the historical information to show
in court how the code was transformed and migrated into the end product as
proof. I suspect the court would then support the SCO discovery.
What I suspect is that they can't, with credibility, identify any code in the
current product and want, as part of their case, to show that SOMEWHERE along
the line IBM did have infringing code in some version of AIX or Dynix. From
there SCO would then build a case that "the ends don't justify the
means". They would claim that IBM stole the code in the beginning and even
though over time modifications substantially changed the code, it's still
derivitive.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 11:33 AM EST |
| At this juncture, I am only aware of a license with Computer Associates,
Questar and Leggett & Platt.
SCO's Linux-licensing business must be
really flourishing. Amazing. [ Reply to This | # ]
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| Authored by: pjcm on Tuesday, February 10 2004 @ 11:33 AM EST |
Regarding IBM's concerns over SCO's document production, we will
likewise address those matters seriatim. Under the heading “First”, Mr.
Shaughnessy identified thirteen categories of documents. Each of those is
specifically addressed below.
(8) “The pleadings, deposition
transcripts and deposition exhibits from UNIX System Laboratories, Inc. (“USL”)
suit against BSD.” SCO does not have such documents in its custody, control or
possession.
Does this mean that SCO has not seen the USL-BSD
settlement documents and if so why are they so sure about the state of the
copyrights?
IANAL PAddy [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 11:36 AM EST |
The internal IT systems at SCO are clearly in excellent hands ...
As to your concern about Darl McBride not having produced “sent'
e-mails, he infrequently sends e-mails. ... The sent e-mails for some executives
apparently are not on the server and instead are only located on their
individual machines.
What, like they all had Yahoo accounts or
something? I guess nothing would surprise at this point ... [ Reply to This | # ]
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| Authored by: the_flatlander on Tuesday, February 10 2004 @ 11:36 AM EST |
Thus, Mr. Shaughnessy simply mischaracterizes the sequence of
events. He has done this in correspondence in the past, including with the
Court, and we would appreciate if you would restrain him from making incorrect
statements in this case.
Oh man.
Translation: As a representative of
the pot, it is my duty to inform you that we believe the kettle is rather dark
in color.
Priceless!
The Flatlander
[ Reply to This | # ]
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- SCO Replies - Authored by: Anonymous on Tuesday, February 10 2004 @ 04:33 PM EST
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| Authored by: KevinR on Tuesday, February 10 2004 @ 11:55 AM EST |
I thought IBM's letter was a bit informal - making a subtle point about gentle
cooperation, honest Judge - by saying "Dear Mark" rather than
"Dear Mr Heise"; but newSCO have hit back with "Dear Dave".
Unless this is American informality, it seems out of place in a legal case of
this magnitude. Its the kind of weird mental games depicted in (of all things)
Ally McBeal![ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 12:06 PM EST |
"As to your concern about Darl McBride not having produced “sent' e-mails,
he infrequently sends e-mails."
Relevant Dilberts:
1996-02-03 - The Boss sends his first e-mail message
1995-05-20 - My secretary was out. There's nobody to print my e-mail for me
1995-12-11 - Goodbye paperless, hello clueless
1997-06-14 - Dilbert and Wally discuss cloning the Boss
1998-01-06 - The Boss criticises Alice for not keeping him informed
1998-06-30 - My old nemesis, Mr Radio, we meet again
etc etc, that's enough for now. Thanks to B F Martin's invaluable Dilbert Strip
finder!
Lastly, in the context of SCO-Caldera's discovery, may I recommend 1995-01-01.
It has certain, errrr, resonances.
[ Reply to This | # ]
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| Authored by: davcefai on Tuesday, February 10 2004 @ 12:20 PM EST |
Very out of Topic, but our favourite analyst has done it again. Read her pearls
of wisdom about Linux on: http://www.technewsworld.com/perl/story/32805.html
[ Reply to This | # ]
|
| |
| Authored by: KevinR on Tuesday, February 10 2004 @ 12:23 PM EST |
(10) “The exhibits to the August 1, 2000 agreement between
Caldera Systems, Inc. and Santa Cruz Operation.” To the extent that such
documents are in the possession of SCO, IBM is certainly entitled to such
documents. We will undertake an additional search to attempt to locate them and
thereafter produce them.
It would be unsurprising if newSCO had
really lost these. Since noone seems to have seen any value in UNIX(tm) source
for the last 10 years - including oldSCO and newSCO.
On the other hand,
documentation such as this would surely have legal demands on its retention -
both for Taxation, Accounting and Securities purposes. Can anyone comment?
I
have niggled about these exhibits before. As the contract and its amendments
were filed with the SEC and are on EDGAR would the attachments/exhibits
be in the Paper Archive at the SEC and could someone go and ask to
inspect them???
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 12:31 PM EST |
"First, as has been stated on repeated occasions and which was
reiterated in SCO's Answers to Interrogatories, the direct line-for-line copying
of System V code that SCO has found was not contributed by IBM, but instead was
contributed by Silicon Graphics."
Looks like the direct copy idea
is officially dead.[ Reply to This | # ]
|
| |
| Authored by: rand on Tuesday, February 10 2004 @ 12:32 PM EST |
Ha! I knew it, I just smelled it months ago.
Successor-in-interest SCOG(we-used-to-be-USL)
(really-we-wouldnt-lie-and-we-used-to-be-SCO-too) doesn't even HAVE the source
code for the first 9 versions of UNIX. That's the same UNIX they _own_.
Bring in the clowns...oh, never mind.
---
The Wright brothers were not the first to fly an aircraft...they were the first
to LAND an aircraft. (IANAL and whatever)[ Reply to This | # ]
|
- No source? - Authored by: dcs on Tuesday, February 10 2004 @ 02:40 PM EST
| |
| Authored by: cfitch on Tuesday, February 10 2004 @ 12:32 PM EST |
Point 9 reads:
(9) “The documents concerning SCO's suit against Microsoft, Inc.,
including at least a copy of all discovery requests and responses in the case.”
As we previously mentioned, SCO was not a party to this litigation and does not
have possession of such documents. Moreover, as we related to your colleague
Peter Ligh in May 2003, the documents in the Canopy Group's possession were
destroyed pursuant to Court Order issued in that unrelated litigation. Our
understanding, however, is that Microsoft or its lawyers may still have the
documents you are seeking, so you may wish to contact them."
I recall reading a short article about the destruction of these documents a few
months ago. The author speculated that the destruction of these documents might
be quite helpful to Microsoft later on. I do have to say that it seems to be a
bit too coincidental for my tastes.
:)
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 12:50 PM EST |
Sorry for being way OT. But I'm way PO'ed. I urgently need a dual processor
Linux workstation. As Dell is my main supplier and basically told me to get
lost, if I don't want to pay for windoze, so I thought o.k., I'll pay more for
an IBM "solution", since they do claim to support Linux, right? Wrong!
All their workstations offered on their web site say clearly "IBM
recommends Microsoft Windows XP". So I thought maybe I should call them,
this can't be right. Nope. The IBM rep said boldly "IBM does not support
Linux!". Granted, this is the workstation department, as they do sell
servers (but not PC's) with Linux. But why do I have to pay for an OS that will
require time and effort, plus reformating, in order for me to remove in order to
install Linux on. They won't even sell it without any OS.
Yes, I support them against the SCO and MS attack, but aren't they both in the
same camp against small Linux customers, shoving windows down our throats, and
making us pay for it?[ Reply to This | # ]
|
- Off Topic. IBM does not support Linux - Authored by: Anonymous on Tuesday, February 10 2004 @ 01:11 PM EST
- Off Topic. IBM does not support Linux - Authored by: Anonymous on Tuesday, February 10 2004 @ 01:15 PM EST
- Off Topic. IBM does not support Linux - Authored by: Rocketman56 on Tuesday, February 10 2004 @ 01:29 PM EST
- Off Topic. IBM does not support Linux - Authored by: Anonymous on Tuesday, February 10 2004 @ 01:36 PM EST
- Off Topic. IBM does not support Linux - Authored by: Anonymous on Tuesday, February 10 2004 @ 01:41 PM EST
- Off Topic. IBM does not support Linux - Authored by: Anonymous on Tuesday, February 10 2004 @ 01:48 PM EST
- Off Topic. IBM does not support Linux - Authored by: Anonymous on Tuesday, February 10 2004 @ 04:50 PM EST
- Dell - Authored by: tomqnx on Tuesday, February 10 2004 @ 06:40 PM EST
- Dell - Authored by: Anonymous on Tuesday, February 10 2004 @ 08:05 PM EST
- Off Topic. IBM does not support Linux - Authored by: AdamBaker on Tuesday, February 10 2004 @ 07:27 PM EST
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 12:55 PM EST |
| For those that don't know, the ES is Extended Security and
is supposed to be
the TCSEC B1-ready system from USL. To
claim that it is virtually the same as
4.1 is to either
lie extensively or claim that AddaMax, Data General and
USL
did in the beginning of the nineties, as it is
supposed to include MAC-labels,
privilege handling,
trusted paths, ACL's (even though they numerous times
attempted to claim user-group-other as an ACL).
Roland Buresund
[ Reply to This | # ]
|
- 4.2 ES/MP? - Authored by: roxyb on Tuesday, February 10 2004 @ 03:28 PM EST
| |
| Authored by: photocrimes on Tuesday, February 10 2004 @ 01:00 PM EST |
I do have Caldera source prior to 2.4 Desktop. Including Version 1 trees and
their demo disk(w/source) from a "Using Linux" publication from 1997.
LOL, my source libraries seem to be slightly more up-to-date than SCO's.
I'm sure others have these resources as well.
;-)
---
//A picture is worth a thousand words//[ Reply to This | # ]
|
- Just FYI IBM - Authored by: Anonymous on Tuesday, February 10 2004 @ 01:21 PM EST
| |
| Authored by: kjb on Tuesday, February 10 2004 @ 01:05 PM EST |
I find it simply amazing in today's business environment that an entity the size
of SCOG does not retain copies of ALL business letters. Especially when you are
demanding a (monetary) reply to your correspondence. Or is this SOP for
businesses?
---
kjb
"No! Try not. Do, or do not. There is no try."
- Yoda[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 01:05 PM EST |
Well, of course the rights are held by United Media. There are printed books
available. It would be rank hypocrisy for a copyright respecting Groklaw reader
to steal huge complete archives of them via a P2P network and a client like
eMule. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 01:09 PM EST |
Well, of course the rights are held by United Media. There are printed books
available. It would be rank hypocrisy for a copyright respecting Groklaw reader
to steal huge complete archives of them via a P2P network and a client like
eMule. [ Reply to This | # ]
|
| |
| Authored by: maco on Tuesday, February 10 2004 @ 01:38 PM EST |
Three things SCOX is trying to avoid at all costs:
- the presentation
where they claimed IBM illegal contributions to Linux (but really
SGI...)
- the "MIT mathematicians" and "vector analysis" of the
code
- that they themselves included pertinant IBM contributions in their
distributions
Much song and dance by SCOX to these tunes[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 01:41 PM EST |
In their anti-trust settlement, didn't MS argue that they could not do this
because it would be too difficult? So now they somehow can?[ Reply to This | # ]
|
| |
| Authored by: subdude on Tuesday, February 10 2004 @ 01:41 PM EST |
Concerning:
8) The pleadings, deposition transcripts and deposition exhibits from UNIX
System Laboratories, Inc. (USL) suit against BSD. SCO does not have such
documents in its custody, control or possession.
On November 19, 2003, it was reported:
www.atnewyork.com/news/article.php/3110981<br>
"SCO Group (Quote, Chart) CEO Darl McBride said his company is currently
comparing source code awarded in a 1994 settlement between AT&T's (Quote,
Chart) Unix Systems Laboratories and BSD, in which Berkeley's version of the
Unix source was severed from the proprietary version."
How could Darl McBride be comparing source code awarded in the 1994 settlement
if they do 'not have such documents in its custody, control or possession'?
Just a thought.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 01:49 PM EST |
| (3) “The letters SCO sent to members of Congress regarding Linux or
any responses it received to such letters.” As you know, this letter was sent
January 8, 2004 , so it was well after there was any collection of documents
from the client. The client apparently does have copies of each of these
individual letters, so if you would like to have those documents, we will
produce them to you. That could be very interesting if this story
is true.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 01:55 PM EST |
http://www.internetnews.com/dev-news/article.php/3310781
SCO has
previously told internetnews.com that it will not try "the case in the court of
public opinion -- we're trying it in a courtroom." SCO has also maintained
that it has evidence it hasn't yet shown in public.
Can any
journalist get a quote from Darl, Sontag, or Stowell to confirm the last point? [ Reply to This | # ]
|
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: Anonymous on Tuesday, February 10 2004 @ 02:03 PM EST
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: Anonymous on Tuesday, February 10 2004 @ 02:18 PM EST
- no flames, but... - Authored by: coffee17 on Tuesday, February 10 2004 @ 02:24 PM EST
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: Anonymous on Tuesday, February 10 2004 @ 02:26 PM EST
- OT-Ace up their sleeves? - Authored by: Anonymous on Tuesday, February 10 2004 @ 02:57 PM EST
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: Philip Stephens on Tuesday, February 10 2004 @ 02:59 PM EST
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: phrostie on Tuesday, February 10 2004 @ 03:01 PM EST
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: Steve Martin on Tuesday, February 10 2004 @ 05:32 PM EST
- This is not Perry Mason - Authored by: xtifr on Tuesday, February 10 2004 @ 06:59 PM EST
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: TrentC on Tuesday, February 10 2004 @ 11:32 PM EST
- OT: SCO will try in court not in public opinion - and claims more evidence - Authored by: _Arthur on Tuesday, February 10 2004 @ 02:13 PM EST
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 01:57 PM EST |
In the projects that I have been involved with, when a company makes a purchase
of a product (transfers product ownership from one company to another), we
always had to produce all the development records and previous release versions
of the source as well as the current released version.
I find it surprising that SCO does not have the following versions if they in
fact did purchase the source.
UNIX Version 1
UNIX Version 2
UNIX Version 3
UNIX Version 4
UNIX Version 5
UNIX Version 8
UNIX Version 9
UNIX Version 10
UNIX System IV
Of course if they id not buy all rights to the product, then they probably would
not get that source.... [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 02:13 PM EST |
I surrender.
There's so much semantic gymnastics in this letter that my brain melted. Really,
I barely know where to start pulling this apart.
Just one that jumped out at me - this from near the beginning:
"First, IBM claims that SCO has failed to identify any files or lines of
code in its own UNIX System V product that IBM is alleged to have
misappropriated or misused."
<snip>
"...so it should come as no surprise that files or lines of code in System
V have not been identified."
so, starting off apparently denying the claim IBM makes, they eventually work
around to saying that it's true, that they haven't complied with the order, but
explaining that it isn't relevant.
What was the purpose of the order again?[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 02:14 PM EST |
They are available for a modest fee from United Media's website. It would be
hypocritical for a Groklaw reader to steal them via a P2P network, for example
using eMule...[ Reply to This | # ]
|
| |
| Authored by: reuben on Tuesday, February 10 2004 @ 02:23 PM EST |
Moreover, regarding IBM's specific comment that SCO must identify
where on its website and in which SCO products the Protected Materials may be
found or accessed, that has been done. As indicated in response to Interrogatory
Nos. 3 and 13, the Protected Materials would be found in any other product that
contains Linux 2.4 kernel or above and SCO distributed the Linux 2.4 kernel and
above for a brief period of time in SCO Linux server 4.0. Moreover, we provided
you with the invoices that laid the terms under which these materials were made
available.
A "brief period of time?" Of course we know that
SCO has never stopped distributing Linux 2.4 kernels. I checked this morning
that recent varieties are still available to any random person on the internet
without any special passwords. I had even forgotten the location, but found
them again in a few minutes of poking around their web page.
Are Mr.
Heise's pants on fire? I would really like to see this one come up in court,
but I guess IBM's lawyers are waiting for SCO to give a straight answer on this
point before demolishing them. Heise's answer above gives considerable weasel
room by mentioning specific information about one packaged product, but failing
to specifically state that there weren't other distributions of Linux by SCO (to
anybody and everybody, right now, for instance).
Weasel, weasel,
weasel.
It seems like this is one point where it would be easy for IBM
to show that SCO is being directly dishonest in its response to discovery. All
they would need is a laptop and wireless internet to show the court.
[ Reply to This | # ]
|
- Mr. Heise's pants - Authored by: Anonymous on Tuesday, February 10 2004 @ 02:59 PM EST
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 02:30 PM EST |
I find SCO's response to point (1) rather telling, and points to their
derivation strategy, which is essentially sleight of hand misdirection: don't
look here, look there. IBM's insistence on outlining System V code relies on
standard interpretations of copyright law to make the connection between System
V and Linux that SCO is claiming. If we label System V "A", AIX
"B", and Linux "C", IBM says that in order to prove
infringement, you have to show how 'A' code can be directly found in 'C'. This
is patently not possible, as the technologies in dispute are simply not found in
'A'. Based on this standard, there is simply no case, there is no connection.
What SCO's lawyers are attempting to do is to obfuscate 'A' and 'B', saying
since B is a derivation of A (they also obfuscate 'derivation' and
'modification' here), looking at B is the same as looking at A. Therefore
instead of making the 'A'->'C' connection, they are attempting to do
'A'->'B', and 'B'->'C', therefore by implication, 'A'->'C'. Any simple
first semester logic class (much less law school), tells you you can't make this
connection, but SCO is attempting to do so by deliberately confusing A and B,
saying looking at B code is the same as looking at A code. Hence Heise's
insistence here that looking at A is immaterial, the crux is B code. Heise wants
to imply that since B comes from A, we need B code to make the B-C connection.
Following that, A/B->C. I can't imagine this argument could even fly in first
year moot court, but hey, they're desperate.
At some point they will have to address the matter of the ATT-IBM agreements,
which spell out the A-B connection, which clearly states that any new work in
AIX belongs to IBM, and that they can do whatever they like with it--including
putting it into Linux.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 02:42 PM EST |
Interesting to note that CA settled an April 2001 lawsuit brough by Canopy
(yep, it's them) and Center7, and ended up paying a cool $40million in
December last year. The details of the settlement appear confidential; could
they have been encouraged to buy SCO IP licences as part of the settlement?
Enough to turn a profit this quarter?
Based on a series of
written agreements involving the licensing of certain software
products,...
See this
report --
An interested bystander [ Reply to This | # ]
|
| |
| Authored by: grouch on Tuesday, February 10 2004 @ 02:46 PM EST |
| Trying to muddle through SCO's letter made me think of an article someone
pointed out to me. The guy lost, even though it appeared IMO (IANAL) he had a
good case.
Jury rejects claim by man in attack on dog by library cat
It looks to
me like the city was in fact putting a barrier in their library, regardless of
the fact that the barrier was a cat. That cat had demonstrated that it prevented
people who need an "assistance dog" from using the public library. Maybe a good
lawyer would have educated that jury so a more sensible outcome would have
resulted. Something that would make sure the city wouldn't impose any more
barriers, the man's medical and court costs would be paid, but no windfall would
result for the man. (If the man had accepted the city's offer, that wouldn't
have removed the barrier, so I personally don't think the suit was frivolous.)
[ Reply to This | # ]
|
| |
| Authored by: overshoot on Tuesday, February 10 2004 @ 02:48 PM EST |
| Thus, Mr. Shaughnessy simply mischaracterizes the sequence of events. He has
done this in correspondence in the past, including with the Court, and we would
appreciate if you would restrain him from making incorrect statements in this
case. Ouch. I'm sure that the Court will make up its own mind as to who
is mischaracterizing what. Unless I were extremely certain of the Court's
conclusion in that case, I wouldn't want to be suggesting that the Court take a
strict line with the offender. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 03:07 PM EST |
| http://www.novell.com/licensing/indemnity/pdf/2_6_04_n-sco.pdf [ Reply to This | # ]
|
- Novel's slam dunk! - As Text - Authored by: stanmuffin on Tuesday, February 10 2004 @ 03:24 PM EST
- Novel's slam dunk! - Authored by: _Arthur on Tuesday, February 10 2004 @ 03:24 PM EST
- PJ -- Important! - Authored by: Anonymous on Tuesday, February 10 2004 @ 03:26 PM EST
- YES!!! FINALLY "Amendment X" for SEQUENT is found!!!! Novel's slam dunk! - Authored by: Anonymous on Tuesday, February 10 2004 @ 03:28 PM EST
- Novel's slam dunk! - Authored by: DrStupid on Tuesday, February 10 2004 @ 03:29 PM EST
- Novel's slam dunk! - Authored by: photocrimes on Tuesday, February 10 2004 @ 03:44 PM EST
- Novel's slam dunk! - Authored by: Anonymous on Tuesday, February 10 2004 @ 03:46 PM EST
- Novel's slam dunk! - Authored by: Polar Weasel on Tuesday, February 10 2004 @ 04:04 PM EST
- Relevant except from $echo - Authored by: Anonymous on Tuesday, February 10 2004 @ 04:23 PM EST
- Please spell NOVELL correctly - Authored by: jdg on Tuesday, February 10 2004 @ 04:27 PM EST
- Ton of bricks - Authored by: Anonymous on Tuesday, February 10 2004 @ 04:42 PM EST
- IBM/Novell Conspiracy - Authored by: Anonymous on Tuesday, February 10 2004 @ 04:47 PM EST
- Novell's slam dunk! - Authored by: Anonymous on Tuesday, February 10 2004 @ 04:52 PM EST
- SCO's getting spanked - Neener Neener - Authored by: Anonymous on Tuesday, February 10 2004 @ 05:16 PM EST
- Novel's slam dunk! - Authored by: Anonymous on Tuesday, February 10 2004 @ 05:30 PM EST
- Analysis: Its over - Authored by: Anonymous on Tuesday, February 10 2004 @ 06:28 PM EST
| |
| Authored by: LionKuntz on Tuesday, February 10 2004 @ 03:26 PM EST |
This argumentation goes in reverse too...
Maybe this
is SCOs reasoning ...
Authored by: dkpatrick on Tuesday, February 10 2004 @
11:27 AM EST
IBM says "tell us what the infringing lines are." SCO says we
can't do
that without all the historical information.
SCO is putting the
cart before the horse but I think they are doing it as part
of their
agenda.
Assuming SCO could show the purported infringing lines of code exist
in AIX
today, THEN they could request discovery on the historical information to
show
in court how the code was transformed and migrated into the end product
as
proof. I suspect the court would then support the SCO discovery.
What I
suspect is that they can't, with credibility, identify any code in the
current
product and want, as part of their case, to show that SOMEWHERE along
the line
IBM did have infringing code in some version of AIX or Dynix. From
there SCO
would then build a case that "the ends don't justify the
means". They would
claim that IBM stole the code in the beginning and even
though over time
modifications substantially changed the code, it's
still
derivitive.
UNIX was group developed from
inception. Within a month of writing a barely functioning kernal, the authors
were distributing copies to universities for examination, bug-fixes and
incorporating contributions back into a developing OS code from a proto-OS
community. There were "confidentiality agreements", no doubt, but no enforcement
mechanism in place. It is impossible to know whatall eyes saw and copied this
code. It was distributed from 1968 to 1972 without copyright notices
attached in the precise manner that was than mandatory by applicable
laws.
Original UNIX was open source, in a trade secret sort of
way. It was not copyrighted, but it was distributed in a manner which voided
both trade secret and copyright protections under the laws applicable during
that time in history.
After 1972 copyright protections became
automatic whenever a work was created, fixed in tangible form, but the
protection was not retroactively applicable to code circulated prior to the 1972
copyright law revisions.
ALL UNIXs are substantially derivative
of public domain code created during the 1968-1972 period when
the source code circulated without proper copyrights affixed, and without a
rigorous trade secrets compliance enforcement program in place.
ALL
UNIXs built upon this public domain code base are "copyrighted" under a
collections copyright, equivilent to you publishing a collected works of Mark
Twain.
While anyone can create a new collection of Mark Twain, order the
stories in any sequence you prefer, choose any type font of your preference, add
biographical or introductory materials, the actual stories themselves are still
public domain, and can be coppyrighted in another variant collection.
So,
while SYS V is a copyrightable collection, including new portions and
derivative sections, it is fundamentally based on public domain code. The
argument that AIX or DYNIX is derivative of SYS V can be
carried further backwards in time to apply to SYS V's
origins.
SCOG, then loses the right to claim derivation in a
series of small steps to property which (through the public domain) IBM
already owns, because SCOGs claimed rights devolve from a series of small
derivation steps from public domain.
IT is the precise letter-for-letter,
number-for-number, code that SYS V is composed of which is the only
property that SCOG can lay any claim to, not the spirit of the
operating system beneath the verbaitum code. SCOG has to prove that
their verbaitum code is not part of the public domain body of inherited UNIX
codebase, and only after proving that, must then prove that IBM's
AIX is substantially derivative of that small fraction of verbatum
code.
This is the reasoning behind IBM requests for all documents
of source code for UNIX going back to 1968. They will bust
SCOGs claims to UNIX the way SCOG is trying to bust
IBMs patents. The case has gotten decidedly vicious despite the
politeness in courtroom demeanors.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 03:39 PM EST |
Article says nothing about January 23....
http://www.sltrib.com/2004/Jan/01242004/business/business.asp
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 04:09 PM EST |
I am wondering how much longer will it take until we see SCO lawyers sanctioned
for contempt?
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 04:46 PM EST |
here's the link to the IBM quote SCO relies on:
http://archive.harktheherald.com/archive_detail.php?archiveFile=./pubfiles/prv/a
rchive/2004/January/24/Business/12056.xml
here's the relevant portion of the article:
SCO, which was initially ordered by a federal judge to produce the evidence by
Jan. 23, failed to fully comply with the court order, said Mike Darcy, IBM's
spokesman. "SCO failed to comply with the court's order to fully answer
IBM's interrogatories and requests for documents by Jan. 23. SCO has now agreed
to provide additional responses, so the court has agreed to postpone the hearing
until Feb. 6 to give SCO additional time to reply," said Mike Darcy, IBM
spokesman.
[ Reply to This | # ]
|
- link to IBM quote - Authored by: Anonymous on Tuesday, February 10 2004 @ 05:04 PM EST
- link to IBM quote - Authored by: Anonymous on Tuesday, February 10 2004 @ 07:13 PM EST
| |
| Authored by: jmaurer on Tuesday, February 10 2004 @ 05:09 PM EST |
I'm reading the following in SCO's letter:
... Mr. Shaughnessy
further attempts to defend it by claiming that all documents had to be produced
by the January 12 deadline and that "on January 12, SCO informed IBM that it had
been unable to complete its production on time, but would do so 'within the next
few days.'" ... As you will recall, I informed you prior to the January 12th
deadline that there were difficulties in obtaining all of the documents during
the holidays and that certain documents were not going to be completed by that
deadline. On January 12th, I confirmed that additional time was needed to
complete review and production of documents from certain
individuals.
I can't see what SCO is complaining about.
Some IBM spokesperson has said publicly that SCO didn't deliver completely on
the Jan 12 deadline, SCO says that's wrong, Mr. Shaughnessy then says he's
irritated by this statement from SCO, and then SCO repeats the fact that it
didn't deliver in time, adding some rationale, but rationale is irrelevant when
deciding whether you missed the bus or not: The bus is gone, no questions about
it.
I'm confused, but not a native speaker, so what am I missing?
Jens
Maurer [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 05:12 PM EST |
<rant>
In the past month or so the number of Groklaw posts with spelling errors,
grammar errors and other confusing errors has increased considerably.
Please consider that many other people who read your post may have to puzzle
over your errors to have any chance of correctly understanding what you meant!
Before pressing Submit Comment please *carefully* re-read your post and correct
these errors. We aren't Slashdot here. </rant>
P.S. I know English is not everyone's first language and I'm not trying to be a
grammar Nazi here. But please take that extra minute or two to proofread your
posts.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 05:14 PM EST |
It is a sad day when the Chewbacca defense seems more logical and thought-out
than what SCO's lawyers publish.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Tuesday, February 10 2004 @ 05:24 PM EST |
Hi MathFox,
(First--thanks to you for your hard work on Groklaw! A real community has
grown up around this site and your efforts were and are, a key part of what
makes that possible).
There's a feature I'd like to request. =)
Not everyone is comfortable with HTML, so I see a lot of Plain Old Text posts
which include pasted URLs. But the convenience of clickable links is also very
nice.
So I suggest: for Plain Old Text posts, could GeekLog scan the text of the
post and just turn any string beginning with "http://" or
"ftp://" into a hyperlink?
This seems like something that would be easy to implement, and would increase
the usability of Plain Old Text posts.
Thanks,
anonymous coward[ Reply to This | # ]
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| Authored by: odysseus on Tuesday, February 10 2004 @ 06:53 PM EST |
Wow, this has SO many holes in it, it's hard to know where
to start.
OK, I know where. SCO seem to have forgotten the meaning
of the word "all", as in IBM's request to produce ALL
code/documents/names, giving us the lame replies like
"Because this was the first time you asked for such source
code by name, no effort was previously made to attempt to
locate this obsolete product."
They also seem to have forgotten about IBM's
counter-suite. They keep refusing to produce items "not
relevent to our complaint", when the discovery requests
are actually to do with IBM's counter-claim.
SCO also seems to have the worst filing system on the
planet, the wost legal case managers, and the worst 3rd
party CD-burners. It's the dog-ate-my-homework defence.
And who wouldn't think to look on individual PC's for any
remaining e-mails???
As others have pointed out, how can they be making public
statements about the USL/BSDi settlement when they don't
have the documents?
Again as others have pointed out, how can they claim they
were not involved in Caldera v M$, especially when their
entire case is based on being successors-in-interest to
oldSCO. You can't claim one heritage, and ignore the
other.
I could go on and on, but I have a life, and it's over 30
degrees outside (celsius that is) so I'm off to enjoy the
sunshine while I can...
John. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 09:56 PM EST |
In TSG’s response to IBM’s “Fisrt” heading they state that “AIX contains over
1000 files that have attribution to AT&T.”
Then in their response to IBM’s “Second” heading they state “Without the
underlying source code from AIX and Dynix, SCO quite obviously cannot identify
the lines of AIX and Dynix that match to IBM's contributions of those lines of
code in Linux.”
I find it interesting that they can know how many files have attribution to
AT&T without having the source code but they can’t tell what code was put
into Linux.
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| Authored by: Anonymous on Tuesday, February 10 2004 @ 09:59 PM EST |
“The code comparisons performed by consultants retained by SCO, the results of
which were publicly discussed by SCO.” These documents were created by
consulting experts who have not been designated to testify in this case. As a
result, such documents are protected from disclosure under Rule 26(b)(4).
This could be an absolute killer. If it turns out they never did the code
comparisons -- or even if they did, but they didn't find a million lines of code
-- then it is going to be an atom bomb when it comes out in court. In fact, I
would say they would be vulnerable to charges of attempted fraud, which is a
felony. [ Reply to This | # ]
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