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| Declaration of Todd M. Shaughnessy with Exhibits - as text |
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Monday, May 31 2004 @ 11:12 PM EDT
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Here is the Declaration of Todd M. Shaughnessy, filed in support of IBM's Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Noninfringement. IBM's Memorandum in Support of its Cross-Motion might be good to have handy, to understand where this new document fits in. The Declaration has a lot of exhibits attached, some of which were documents we already had on Groklaw. We are still missing a couple of exhibits.
These were all paper exhibits, so Frank Sorenson heroically tackled the work of scanning everything for us. Because I was trying to save time and money, I decided to point to documents we already have when we did have them and to the SEC for the two filings there, so if you are doing anything where absolute accuracy is vital, you'll probably want to obtain those exhibits directly from the court. However, this will be sufficient to give us a clear picture of what IBM's position is, and I have no reason to think the documents are any different.
**************************************
SNELL & WILMER, L.L.P.
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
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THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
vs
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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DECLARATION OF TODD M. SHAUGHNESSY
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
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I, Todd M. Shaughnessy, declare as follows:
1. I represent IBM in the lawsuit brought by SCO against IBM, titled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). This declaration is submitted in support of Defendant/Counterclaim-Plaintiff IBM's Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Noninfringement.
2. Attached hereto are true and correct copies of the following documents:
(a) Exhibit 1 is "SCO Linux Educational Materials: Learning Unit 001", bates numbered SCO1355589-SCO1355653.
(b) Exhibit 2 is SCO's Answer to IBM's Second Amended Counterclaims, dated April 23, 2004.
(c) Exhibit 3 is a printout from SCO's website.
(d) Exhibit 4 is the Form 10-K/A filed by Caldera Systems, Inc. for the fiscal year ending October 31, 2000.
(e) Exhibit 5 is SCO's Second Amended Complaint, dated February 27, 2004.
(f) Exhibit 6 is the Form 10-K filed by Caldera International, Inc. for the fiscal year ending October 31, 2002.
(g) Exhibit 7 is a press release titled "Caldera, Conectiva, SuSE, Turbolinux Partner to Create United Linux, and Produce a Uniform Version of Linux for Business", dated May 30, 2002.
(h) Exhibit 8 is a press release titled "The SCO Group Name Change Approved by Shareholders", dated May 20, 2003.
(i) Exhibit 9 is SCO's Complaint filed in the District Court of Salt Lake County, Utah, Third Judicial District on March 6, 2003.
(j) Exhibit 10 is a letter from D. McBride to L. Noto, dated May 12, 2003.
(k) Exhibit 11 is "Event Transcript: SCO Group (SCOX) Conference Call", dated July 21, 2003.
(l) Exhibit 12 is a transcript of the December 5, 2003 hearing before Magistrate Judge Wells.
(m) Exhibit 13 is a form letter from R. Tibbitts to "Linux User", dated December 19, 2003.
(n) Exhibit 14 is the Complaint filed on March 2, 2004 by SCO against AutoZone, Inc., in the United States District Court for the District of Nevada, titled The SCO Group, Inc. v. AutoZone, Inc., Case No. CV-S-04-0237 (D. Nev.).
(o) Exhibit 15 is IBM's Second Amended Counterclaims, dated March 29, 2004.
(p) Exhibit 16 is SCO's Memorandum in Support of Motion to Dismiss or Stay Count Ten of Plaintiff IBM's Second Amended Counterclaims Against SCO, dated April 23, 2004.
(q) Exhibit 17 is the Complaint filed on August 4, 2003 by Red Hat, Inc. against SCO in the United States District Court for the District of Delaware, titled Red Hat, Inc. v. The SCO Group, Inc., Civ. 03-772 (D. Del.).
(r) Exhibit 18 is Defendant The SCO Group, Inc.'s Opening Brief in Support of its Motion to Dismiss in Red Hat , dated September 15, 2003.
(s) Exhibit 19 is the Memorandum Order issued by Judge Sue L. Robinson in Red Hat on April 6, 2004.
(t) Exhibit 20 is an article by Lisa M. Bowman titled "SCO Puts Disputed Code in the Spotlight" from CNET News.com, dated August 18, 2003.
(u) Exhibit 21 is an article by Antone Gonsalves titled "SCO To Release Disputed Linux Code This Week" from InternetWeek, dated June 2, 2003.
(v) Exhibit 22 is an article by Lisa M. Bowman and Robert Lemos titled "Linux Community Scoffs at SCO's Evidence" from The Globe and Mail, dated August 21, 2003.
(w) Exhibit 23 is an article by Sam Williams titled "SCO, Open Source and the World" from Salon. com, dated December 23, 2003.
(x) Exhibit 24 is an article by Jed Boal titled "Utah Software Company Suing IBM" from KSL.com, dated November 13, 2003.
(y) Exhibit 25 is an article by Maureen O'Gara titled "SCO Files for AIX Injunction against IBM" from LinuxWorld, dated June 16, 2003.
(z) Exhibit 26 is SCO's Supplemental Response to Defendant's First Set of Interrogatories, dated October 23, 2003.
(aa) Exhibit 27 is SCO's Revised Supplemental Response to Defendant's First and Second Set of Interrogatories (excluding printouts of source code), dated January 15, 2004.
(bb) Exhibit 28 is a letter from B. Hatch to T. Shaughnessy, dated April 19, 2004. - Exhibit A: "The SCO Group Source Log"
- Exhibit B: "AIX Files & lines in code drop for Linux 2.2.12"
- Exhibit C: "Lines of code derived from Dynix/ptx contributed to Linux 2.6.5 by IBM"
- Exhibit D: "Files & lines in Dynix v4.6.1 tree/Code drop for Linux 2.4.1"
- Exhibit E: "AIX File Lines"
- Exhibit F: "Dynix File Name/Lines"
- Exhibit G: "Linux files from LiS-2.1.5, downloaded from ftp://ftp.gcom.com/pub/linux/src/LiS/LiS-2.15.tgz"
(cc) Exhibit 29 is a letter from M. Heise to D. Marriott, dated February 4, 2004.
(dd) Exhibit 30 is an article by Roger Parloff titled "Gunning for Linux" from Fortune, dated May 17, 2004.
(ee) Exhibit 31 is an article by Maureen O'Gara titled "SCO's Lawyer Speaks, Says Nothing" from LinuxWorld.com, dated March 21, 2003.
(ff) Exhibit 32 is an English translation of an article by Holger Dambeck, titled "Linux Hunter SCO Puts Everything on the Line" from Spiegel Online, dated April 13, 2004.
(gg) Exhibit 33 is IBM's Second Set of Interrogatories and Second Request for the Production of Documents, dated September 16, 2003.
(hh) Exhibit 34 is SCO's Supplemental Response to Defendant's Second Set of Interrogatories and Second Request for the Production of Documents, dated October 23, 2003.
(ii) Exhibit 35 is IBM's Memorandum in Support of Second Motion to Compel Discovery, dated November 6, 2003.
(jj) Exhibit 36 is the Order Granting IBM's Motion to Compel Discovery and Requests for Production of Documents, dated December 12, 2003.
(kk) Exhibit 37 is SCO's Notice of Compliance with Court Order of December 12, 2003, dated January 12, 2004.
(ll) Exhibit 38 is IBM's Report on SCO's Compliance with the Court's December 12, 2003 Order, dated February 5, 2004.
(mm) Exhibit 39 is a transcript of the February 6, 2004 hearing before Magistrate Judge Wells.
(nn) Exhibit 40 is the Order Regarding SCO's Motion to Compel Discovery and IBM's Motion to Compel Discovery, dated March 3, 2004.
(oo) Exhibit 41 is the Declaration of Chris Sontag, dated April 19, 2004.
(pp) Exhibit 42 is IBM's Answer to the Amended Complaint and Counterclaim/Plaintiff IBM's Counterclaims Against SCO, dated August 6, 2003.
3. I declare under penalty of perjury that the foregoing is true and correct.
Executed: May 18th, 2004.
Salt Lake City, Utah
_____[signature]_______
Todd M. Shaughnessy
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of May, 2004, a true and correct copy
of the foregoing was sent by U.S. Mail, postage prepaid, to the following:
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]
Stephen N. Zack
Mark J. Heise
BOlES, SCHILLER & FLEXNER LLP
[address]
Kevin P. McBride
[address]
[signature]
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| Authored by: PJ on Monday, May 31 2004 @ 11:07 PM EDT |
This was such a complex article, I fear there may be more issues than usual.
Please put all such errors here, so I can fix whatever problems there are.[ Reply to This | # ]
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- Corrections Here Please - jj & nn - Authored by: QTlurker on Tuesday, June 01 2004 @ 12:00 AM EDT
- only (nn) s.b. IBM-109 - Authored by: grundy on Tuesday, June 01 2004 @ 12:33 AM EDT
- (j) Exhibit 10 is a letter from D. McBride to L. Noto, dated May 12, 2003 - Authored by: bonzai on Tuesday, June 01 2004 @ 01:28 AM EDT
- (cc) Exhibit 29 is a letter from M. Heise to D. Marriott, dated February 4, 2004. - Authored by: bonzai on Tuesday, June 01 2004 @ 05:23 AM EDT
- BREAKING - Series A preferred liquidated, BayStar takes a bath - Authored by: Anonymous on Tuesday, June 01 2004 @ 04:04 PM EDT
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| Authored by: ankylosaurus on Monday, May 31 2004 @ 11:16 PM EDT |
Whew! You've been busy!
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 31 2004 @ 11:21 PM EDT |
| Regarding (g) and (h), Press Releases of these dates can be found on ir.sco.com [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 31 2004 @ 11:28 PM EDT |
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- URLs and other topics here please - Authored by: jkondis on Tuesday, June 01 2004 @ 12:32 AM EDT
- NYT endorsement of open source - Authored by: Peter Smith on Tuesday, June 01 2004 @ 03:08 AM EDT
- Financial Times on Linux - Authored by: RedBarchetta on Tuesday, June 01 2004 @ 04:07 AM EDT
- THIX, yet another one-man free U*X - Authored by: Anonymous on Tuesday, June 01 2004 @ 06:10 AM EDT
- THIX, yet another one-man free U*X - Authored by: Anonymous on Tuesday, June 01 2004 @ 06:11 AM EDT
- URLs and other topics here please - Authored by: Anonymous on Tuesday, June 01 2004 @ 09:07 AM EDT
- Red Hat CEO Szulik on business, SCO, and other topics - Authored by: Anonymous on Tuesday, June 01 2004 @ 09:08 AM EDT
- Baystar/SCO settlement announced. - Authored by: Anonymous on Tuesday, June 01 2004 @ 04:16 PM EDT
- BayStar/SCO settlement, delayed Q2 earnings as links - Authored by: Anonymous on Tuesday, June 01 2004 @ 04:28 PM EDT
- URLs and other topics here please - Authored by: David Gerard on Tuesday, June 01 2004 @ 04:40 PM EDT
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| Authored by: jmart on Monday, May 31 2004 @ 11:31 PM EDT |
Exhibit 1 Looks like it will be an interesting read. Page 1-11 has a blurb by
TSG about what open source is. And page 1-5 acknowledges the history of Linux.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 31 2004 @ 11:42 PM EDT |
Exhibit 1 is a SCO document (when SCO still loved Linux). This contains seems
interesting and familiar quotes including:
p9 "The Linux operating system stems from a rich history of collaborative
development..."
p10 "Linus Torvalds... [w]hile studying as an undergraduate student at the
University of Helsinki"
p10 "began posting news of his project to Internet newsgroups, along with a
call for volunteers to assist his efforts"
p10 "With the Internet providing for distributed collaboration..."
p10 "One of the most important decisions Torvalds made was to develop the
Linux kernel under the GNU Public License (GPL) and keep the source code freely
distributable so others could build upon, modify, and develop programs for the
operating system."
p11 "and users have have the freedom to run, copy, distribute, study, adapt
and improve software as they see fit."
p14 (more of same type of thing)
p53 "SCO enables the development, deployment and management of
Linux...Internet solutions for business"
p61-62 more on the GPL (including SCO's questions and answers!)
For anybody who hasn't realized why these seem familiar...
They appear, either verbatim or substantially, in IBM's counterclaims and/or
summary judgement memo.
(SCO has already denied some of these with regards to IBM's counterclaims, which
is kind of interesting/amusing in itself)[ Reply to This | # ]
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| Authored by: The_Rajah on Monday, May 31 2004 @ 11:48 PM EDT |
I especially loved in exhibit 1 From Page 16: "SCO is committed to the Open
Source community and makes its Linux products available for free
download."
---
"Do the Right Thing. It will gratify some people
and astound the rest." - Mark Twain [ Reply to This | # ]
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| Authored by: Anonymous on Monday, May 31 2004 @ 11:56 PM EDT |
You may remember the allegation in IBM's counterclaims, that SCO's trademarks
are SCO's most valuable intellectual property. (although not at issue for the
current PSJ motion, it remains an issue for the lawsuit in general)
SCO denied it.
You will find that IBM is quote from the 2000 Caldera SEC filing, page 16:-
Certain components of OpenLinux have been developed and made available
for licensing under the GNU General Public License and similar licenses, which
generally allow any person or organization to copy, modify and distribute the
software. The only restriction is that any resulting or derivative work must be
made available to the public under the same terms. Therefore, although we
retain
the copyrights to the code that we develop ourselves, due to the open source
nature of our software products and the licenses under which we develop and
distribute them, our collection of trademarks constitutes our most important
intellectual property.
P.S.
SCO never been profitable (also in IBM's amended counterclaims although not at
issue for the current PSJ motion) is a quote from the 2002 SEC filing by
Caldera.
Enjoy![ Reply to This | # ]
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| Authored by: dmscvc123 on Monday, May 31 2004 @ 11:59 PM EDT |
Here's a few here and a couple of lines of code there, but it doesn't really
matter that we give any specificity since Linux, AIX, Dynix, etc are all derived
from Unix anyway so the entire OSes are claimed.
Quite weasily.[ Reply to This | # ]
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| Authored by: mhoyes on Tuesday, June 01 2004 @ 12:08 AM EDT |
This is the list of all of the files that SCO is claiming to have rights too in
Linux. Now, someone(s) need to go throught the list with a fine tooth comb and
see what each section is for and what the history of it is.
I am just a Linux user/admin, so I don't know the full history of the code but
looking at it, a lot of the files seem to be for 64 bit platforms, and for the
elf binary format. There are also some header files included that don't seem to
make any sense.
To my untrained eye, (IANAL), this would be where they would be trying to hit
all Linux users so if this can be defeated, since this is supposed to be a
complete list based on the judges order, then maybe it can all be knocked out of
court before anyone else has to suffer a lawsuit.
meh[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 12:13 AM EDT |
He blows Darl's whole leg off here, as he says the "piece at a time" strategy is
a specific US legal strategy!
Here is the quote emphasis
added:
Moreover, the SCO managers are curiously secretive.
Proof for code rustling has not been made public to date. Anyone who wants to
look at the allegedly copied lines in the programs must sign a non-disclosure
agreement. Blepp explains this as the particular strategy for legal actions
in the United States. "There you don't put the everything on the table at the
start, but instead you bring out your arguments and evidence piece by
piece."
You may remember when IBM quoted Heise making
similar comments, SCO contended he wasn't talking about the case, or he didn't
mean that.
Blepp hasn't given SCO nearly as much wiggle room as Heise
did, as the content of the piece by piece strategy is made crystal clear (U.S.
legal activities).
The judge is sure to be pleased... NOT
And,
if anything, IBM understates this point in their PSJ memo. If anything, Blepp's
statements is worse for SCO than the segment that IBM quote.[ Reply to This | # ]
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| Authored by: dmscvc123 on Tuesday, June 01 2004 @ 12:26 AM EDT |
I think IBM is going to nail SCO on their response to that (they probably won't
do it in pre-trial, but if it does go to trial I think they'd do it there). It
doesn't sound like SCO has identified every single time they've distributed code
to 3rd parties, under what circumstances the code was distributed and the date.
I think that's a real hard discovery item to give and I'm surprised SCO gave
that discovery so willingly.[ Reply to This | # ]
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| Authored by: Khym Chanur on Tuesday, June 01 2004 @ 12:45 AM EDT |
| The "SCO Linux Educational Materials" says that it can't be copied without
permission from SCO. Is it now OK to make a copy available here on Groklaw,
because it's been admitted as a exhibit in a lawsuit? ---
Give a man a
match, and he'll be warm for a minute, but set him on fire, and he'll be warm
for the rest of his life. (Paraphrased from Terry Pratchett) [ Reply to This | # ]
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| Authored by: crs17 on Tuesday, June 01 2004 @ 12:45 AM EDT |
Here's a long shot. The first business page of the May 31 New York Times has a
story about tracking down spammers for breaking anti-spam laws. The primary
person featured in the article is Sterling McBride, "an investigator for
Microsoft". His resume includes working for the US Marshals Service where
he "hunted down escaped prisoners."
Now I have no problem with the activities described in this article and have no
complaints about said Sterling McBride. But I'm interested - does anyone know if
he's related to Darl? Is that one more connection between Microsoft and SCO?
The article also says that Microsoft's "digital integrity" unit is two
years old. That would imply that the MS/SCO/Darl relationship is older than the
MS/Sterling relationship.
Longer shot fantasy/humor. If Darl is arrested, convicted, imprisoned, and
escapes, will Sterling track him down?[ Reply to This | # ]
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| Authored by: Khym Chanur on Tuesday, June 01 2004 @ 12:47 AM EDT |
| Why are SCO's and IBM's filings in the SCO v. IBM case used as exhibits? Surely
the trial judge will look them over when/if it gets to him. ---
Give a
man a match, and he'll be warm for a minute, but set him on fire, and he'll be
warm for the rest of his life. (Paraphrased from Terry Pratchett) [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 01:04 AM EDT |
The lines of AIX and Dynix which were identified go outside of the kernel into
userspace programs like awk. As far as I know IBM has never contributed to GNU
awk. GNU awk was written and is fully owned the the FSF. Has SCO located more
of their own copyright infringements? I can't believe for a second that the FSF
would stead crappy SYSV code to put in their superior awk product. And the FSF
has draconian tracking, assignment, and registration procedures.
Anyone care to dig up the exact lines that SCO is claiming and see if the FSF
wants to pull a Red Hat?[ Reply to This | # ]
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| Authored by: Lev on Tuesday, June 01 2004 @ 01:22 AM EDT |
The letter from Hatch seems to contain a new (but IMHO frivolous) argument about
derivative works. First they say they cannot link IBM's contributions back to
specific lines of UNIX System V until they see all development history. But
then they provide an "initial" response which is in fact a blanket argument that
everything that ever was in AIX or Dynix is a derivative work of UNIX System
V:
The AIX operating system, in its entirety, was either a
derivative work based on or a modification of UNIX System V Release 3.2, which
includes the following: kernel, interfaces, system calls, libraries, commands
and architectural structure and sequence as licensed to IBM. As such, no
feature of the AIX operating system will operate or retain necessary
functionality in AIX independent from UNIX System V base-level functionality
required by that feature. Therefore, as noted above, the entire AIX operating
system is either based on, or is a modification of, UNIX System V Release 3.2,
and IBM's contributions from the AIX operating system to Linux are in their
entirety derivative works based on, or modifications of UNIX System
V.
I.e., SCO's claim is that everything in AIX is a derivative of
UNIX System V because it cannot work without the infrastructure provided by UNIX
System V. Why, this brilliant reasoning can be applied with equal force to any
application written for UNIX. Certainly none of them will "operate or retain
necessary functionality" without the OS!
Another problem with this argument
is that the very fact that IBM ported code to Linux proves that it can work
without "UNIX System V base-level functionality," but SCO is going to claim that
that's only because Linux stole that functionality from UNIX System V, so I'm
not going there.
Can any legal minds enlighten us as to whether this
argument has any basis in law at all? Is there some precedent that says that
reliance on a program's functionality makes another program a derivative work?[ Reply to This | # ]
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- Derivative works argument - Authored by: Harry Clayton on Tuesday, June 01 2004 @ 02:45 AM EDT
- They made this up, its like they never read USC - Authored by: Anonymous on Tuesday, June 01 2004 @ 02:53 AM EDT
- Derivative works argument - Authored by: codswallop on Tuesday, June 01 2004 @ 04:15 AM EDT
- But IBM's "derivative works" DO function without UNIX SysV! - Authored by: Anonymous on Tuesday, June 01 2004 @ 06:56 AM EDT
- Derivative works argument - Authored by: Anonymous on Tuesday, June 01 2004 @ 08:27 AM EDT
- Gall and derivative works - Authored by: coffee17 on Tuesday, June 01 2004 @ 09:00 AM EDT
- MicroStar v. Formgen - Authored by: codswallop on Tuesday, June 01 2004 @ 09:09 AM EDT
- Derivative works argument - Authored by: midav on Tuesday, June 01 2004 @ 02:03 PM EDT
- Derivative works argument - Authored by: cf on Tuesday, June 01 2004 @ 02:31 PM EDT
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 01:29 AM EDT |
Here is 2. (bb) Exhibit D in non-tabular form:
Exhibit D
Files & lines in Dynix v4.6.1 tree
kernel/os/rclock.c
303-317, 383-588, 616-1825
kernel/sys/kma_defer.h
46-52, 95-119, 129-132, 140
kernel/os/kma_defer.c
191-353, 370-427, 550-582, 603-703
Files & lines in code drop for Linux 2.4.1
include/linux/rclock.h
40-132, 137-162, 190-195, 230-305, 307-310
kernel/rclock.c
48-80, 85-137,189-1011
include/linux/kmemdef.h
38-72
kernel/kmemdef.c
61-245
bkm
(groklogin: fotoguzzi)
p. s. This is a short one--I can put in any desired form.
bkm
bkm[ Reply to This | # ]
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- Code drop? - Authored by: Anonymous on Tuesday, June 01 2004 @ 08:13 AM EDT
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 01:57 AM EDT |
I was looking at the LiS files in SCO's list
I am a C/C++/assembler/low-level programmer, but not of this particular type of
stuff (and have never seen any of it before), so I thought I would run my eye
over the list
I download the the tar file SCO mentions. I also looked at the gcom site and
google for LiS
Okay LiS is an implementation of UNIX streams for Linux.
My conclusions are:
(1) I think SCO claim the entireity of this implementation based on the fact
that LiS implements a UNIX feature.
(2) The code that SCO have claimed - does not, and can not match, any SCO code
or any UNIX code.
(3) SCO can NOT have even examined the code that SCO are claiming. For example,
they claim documentation files that are entirely original or simply state the
author's names, or contain no code at all.
More details in a subpost.[ Reply to This | # ]
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| Authored by: Trepalium on Tuesday, June 01 2004 @ 02:00 AM EDT |
It looks like Christoph Hellwig was not authorized to work on sysvfs. It says
so clearly on IBM-157-28-G, page 10. Clearly The SCO Group is just trying to
rewrite the parts of history it finds distasteful, but this is just stupid.
I also liked the part where, because they were asked to be more specific, and
list out exact lines that they claimed, they just added 1-end to each file.
Very classy. Do they have children working there, or what? If they know that
some of it has been misappropriated, they also must know which lines they want
to claim, or are we to believe that "Copyright (C) 1991, 1992 Linus
Torvalds" appears in SysV?
Between the whining (IBM didn't give us exactly what we wanted), and the
worthless evidence they supplied, I don't know how they believe they stand a
chance. Mr. Hellwig might want to get a lawyer just in case, though. You can
never be too careful around a rabid dog such as SCO.
---
$ apt-get moo[ Reply to This | # ]
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| Authored by: Chugiak on Tuesday, June 01 2004 @ 02:09 AM EDT |
Regarding the SCOG complaint that they weren't informed by IBM about IBM's
commitment to Linux until May, 2001, there has been a lot of information posted
here about how they could not have been ignorant given all the press releases
from August, 2000, onward. Well in SCOG's 10-K/A filing (as Caldera) for the
fiscal year ending October 31, 2000, they admit to the SEC that they knew of
IBM's plans to commit to Linux. See page 14, third paragraph in attachment (d) Exhibit 4.
In the Linux operating
system market, our competitors include Corel,
MacMillan, Red Hat, SuSE and
TurboLinux. In addition, IBM and Sun Microsystems
have announced plans to invest
significant resources into the development of
Linux.
Perhaps IBM
didn't put the joint venture to bed until May of 2001, but SCOldera knew IBM was
looking at Linux back in 2000. It certainly wasn't skullduggery as implied by
SCOG.[ Reply to This | # ]
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| Authored by: mobrien_12 on Tuesday, June 01 2004 @ 03:00 AM EDT |
PJ, nice work collecting all the hyperlinked documents.
There is a lot of stuff here. The judge is going to have alot of work to do to
read it all. I have only gone through some of them, but they seem to form a
fairly cohesive picture showing that SCO has not provided any evidence that
Linux has unlicenced, copyrighted, proprietary SysV code in it, and leaves the
(IMHO insane) derivative-works-based contract argument alone.
[ Reply to This | # ]
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| Authored by: Khym Chanur on Tuesday, June 01 2004 @ 03:01 AM EDT |
Since PJ doesn't want foul language on Groklaw, all I can say is "Bwuh? What
the?! Huh?!?!"
So far as I can tell, SCO is claiming infringement
by:
- A dynamically loadable kernel module that is not a part of the
stanard kernel
- Linux kernel architecture speficic files for Sprac,
Alpha, and other architectures that SysV has never been on.
- GNU's binutils
(!!!), including files for architectures SysV has never been
on.
- GNU's glibc (!!!).
- Miquel van Smoorenburg's
SysVinit.
*BOGGLE*
So it looks like SCO is going for a theory of
copyrights where copyrights cover ideas.
Also, why is SCO adding things
to the SCO v IBM case that have nothing to do with the kernel, at this late a
date in the case? ---
Give a man a match, and he'll be warm for a
minute, but set him on fire, and he'll be warm for the rest of his life.
(Paraphrased from Terry Pratchett) [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 03:27 AM EDT |
I posted already about LiS
I also recommend examining page 14 of the same exhibit, where SCO claims certain
lines of the Linux ABI v2.4.21
I haven't examined this properly yet, but an initial glance suggests
(1) SCO are claiming the entire patch difference between Linux ABI 2.4.20 and
2.4.21
(2) The only logical basis for this claim is that SCO haven't distributed
2.4.21. In other words, if SCO themselves haven't distributed it (they admit to
distribute 2.4.20 but not 2.4.21), then in SCO's view it is improper in some
unspecified way.
Somebody with some more expertise on this specific area should examine it, to
see whether the above is correct, as I strongly suspect it is.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 03:36 AM EDT |
Caldera did ship LiS, which they claim they don't in Exhbit G.
Just look at an old CD (COL 2.x timeframe)[ Reply to This | # ]
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| Authored by: JeR on Tuesday, June 01 2004 @ 04:40 AM EDT |
| NT [ Reply to This | # ]
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| Authored by: wllacer on Tuesday, June 01 2004 @ 06:40 AM EDT |
I've done a preliminary survey on the GNU files claimed infringing (on what?,
they don't specify)
After this it's clear (for me) that the SCOundrels claim to "own":
-> Asynchronous IO (glibc)
-> Dynamic Loading (glibc)
-> the ELF binary format (binutils)
-> the SysVinit
-> Streams
IIRC all of them where features not present in BSD at the time of the
settlement.
As for the first two, unless they can claim direct copying, they are features
present in a lot earlier OS (i bet IBM has some patents involved)
Just to protect from every twisted non direct coping theory, Have been the other
three part of any public standard?[ Reply to This | # ]
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| Authored by: Khym Chanur on Tuesday, June 01 2004 @ 07:15 AM EDT |
| I wrote to Miquel van Smoorenburg about SCO's claim that his SysVinit program
was infringing. He wrote back to say that my message was the first that he'd
heard about it, that he wrote all of it himself, and that he's never seen any
SysV source code. I'll make a verbatim post of his repsonse if he allows
it. ---
Give a man a match, and he'll be warm for a minute, but set him
on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry
Pratchett) [ Reply to This | # ]
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| Authored by: odysseus on Tuesday, June 01 2004 @ 08:23 AM EDT |
<tinfoil hat>
Now, this is a clever move on IBM's part. Here's all
these claims coming in from SCO as part of discovery that
they need to do research on, and the community is the best
place to do this, but they can't publically disclose the
documents sent to them by SCO, unless they attach them as
an exhibit to a public court filing and leave Groklaw to
take care of the rest...
</tinfoil>
Mad props to the guys doing the code analysis, and to
those who have spotted the close similarities between
IBM's claims (denied by SCO) and SCO's own documents.
Here's just hoping we're not stealing IBM's courtroom
thunder.
John. [ Reply to This | # ]
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| Authored by: eamacnaghten on Tuesday, June 01 2004 @ 10:56 AM EDT |
| Especially for those in Europe...
http://www.linux.org.uk/open.l.html[ Reply to This | # ]
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| Authored by: aaron_tx on Tuesday, June 01 2004 @ 11:47 AM EDT |
How can $COG claim they have complied with discovery when i did not see one
document that stated wich lines/files from AIX map to which lines/files with
Linux. Also, why are they still flogging the JFS horse, didn't Linux jfs from
OS2 not AIX? Nice how HAtch tries to assert that it was the format that IBM
gave them AIX in that caused undo delay in analysis...
out[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 12:45 PM EDT |
The following is extracted from exhibit 10:
'Dear Lucio:
"... Many Linux contributors were originally UNIX developers ... were
subject to confidentiality agreements, including confidentiality of the methods
and concepts involved in software design."'
Therefore programming must be a trade secret! Well a lot of code does read as
if it were intended to be secret. Hmmm.[ Reply to This | # ]
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| Authored by: moogy on Tuesday, June 01 2004 @ 01:22 PM EDT |
Wells: Please provide evidence as to what color
the item is.
SCOG: That has nothing to do with our case claims.
Wells: The discovery is for the counter-claims
and the court by ordering compliance has already
decided that it is relevant.
SCOG: Ok, it's square.
Wells: The court did not ask for that. Please
tell us specifically what color it was.
SCOG: Ok, it has 4 corners and 4 equal length
sides. That's a square.
Wells: Are you sure this is what you want to
submit as your response to discovery?
SCOG: Yes, and we have now fully complied.
----
Sorry the humor but I fail to see how SCOG, by
listing all these GNU SysV-init and utilities
files has anything to do with what IP claims
they have in Linux and fulfilling the court's
discovery order.
---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi
[ Reply to This | # ]
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| Authored by: tredman on Tuesday, June 01 2004 @ 01:28 PM EDT |
I have a question here.
It seems that SCO is bucking for a slap on the side of the head, so that they
can try their luck in appeals court, a proposition that the Magistrate Judge is
making harder and harder for SCO because of an UNGODLY amount of patience.
My question is, what are the basics of the appeal process? Do they essentially
retry the case, or do appeal judges simply review the case materials to
determine if the case needs to be reheard?
What are the major differences between a regular trial and the appeals process?
And wouldn't an appeal hurt SCO more than help them, even considering that it
would be just one more of a long line of delay tactics?
Tim[ Reply to This | # ]
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- Appeals - Authored by: Ed L. on Tuesday, June 01 2004 @ 02:46 PM EDT
- Appeals - Authored by: tredman on Tuesday, June 01 2004 @ 06:34 PM EDT
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| Authored by: frk3 on Tuesday, June 01 2004 @ 01:34 PM EDT |
Was just on Yahoo Finance checking today's dance steps of SCOX.
Found
"news" item about Conference call and Webcast being Thursday, 3 June 2004. Looks
like they pushed it back a day.... [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 01:43 PM EDT |
| From exhibit F, 11
lines from the end, TSCOG claims ownership of lines 1-29, 31-431 of file
usr/src/bdiff/bdiff.c of Dynix. I expect this file to have 431 lines so that
they claim the whole file except line 30. Anyone can guess what's in there
?
Loïc, wondering. [ Reply to This | # ]
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| Authored by: eamacnaghten on Tuesday, June 01 2004 @ 01:44 PM EDT |
| Courtesy of Slashdot....
http://www.reuters.com/newsArticle.jhtml?type=technologyNews&storyI
D=5304507
This is following a theme regularly discussed here on
Groklaw. Everyone (sensible) seems to agree that the current model of selling
one-off software licenses is doomed (including MS and SUN), though there are two
things that can replace it....
The first is a software subscription model,
for example, where instead of the user paying 500 USD for a word processor, they
pay 5 cents (or whatever) to edit a document.
The other model is the Open
Source/Free model, where the software is free, and you do not need to pay if you
do-it-all yourself, however you need to pay should you require expertise in
training, support, implementation or whatever. - As well as having the ability
to change the program to your needs etc.
It is interesting that Sun seems to
have the first option as a company stratergy, especially after GPL-ing
OpenOffice.org. However, despite that, I think the attacks on Open Software
model in the form of FUD and Patent grabbing are going to fail, and the Open
model will prevail. However, there will be a fight, and damage is likely to be
done in the process. [ Reply to This | # ]
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| Authored by: dmscvc123 on Tuesday, June 01 2004 @ 02:41 PM EDT |
What would be good to know is what files listed by SCO also match up to OSes
they've stated don't infringe. Like I believe SCO specifically stated HP-UX was
non-infringing, so it would probably be quite embarassing if the OSes they
stated as non-infringing contain these same files.[ Reply to This | # ]
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| Authored by: mobrien_12 on Tuesday, June 01 2004 @ 04:11 PM EDT |
SCO claims copyright infringement because they "terminated" the AIX
licence. The justification of this was that IBM had contributed SCO's code and
trade secrets to Linux. SCO has since dropped this claim.
So SCO gets to terminate IBM's irrevocable licence because IBM contribued its
own code???? Madness, even without considering the fact that Novell told SCO
that they could not do this!
To destroy the copyright claim, IBM has to show that the licence was not
terminated, or not terminated legally.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 04:37 PM EDT |
| http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=136299 [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 01 2004 @ 06:03 PM EDT |
Just from reading Groklaw reader postings in general about this case, I think
too many of us are trying to prove IBM's innocence.
SCO has the burden of proof, not IBM. I think too many of us have been
underestimating this burden.
Even if you take SCO's best chance -- derivative works -- you still have to
present specific evidence, not merely conclusionary statements.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, June 02 2004 @ 05:25 AM EDT |
There are 42 exhibits. I am sure this number was not picked
randomly, IBM lawyers are too smart for that.
Is 42 the answer to life, the universe and SCO claims ? [ Reply to This | # ]
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