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Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text
Sunday, June 06 2004 @ 08:00 PM EDT

This is SCO attorney Brent Hatch's letter of April 19, 2004 to IBM attorney Todd Shaughnessy. It is Exhibit 28, attached to the latter's Declaration of Todd Shaughnessy filed in support of IBM's Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Noninfringement. Thanks go to Chris Brewer once again for transcribing this for us. He's really been on a roll.

Here we find SCO building up their excuses for asking for more AIX code from IBM. It seems they can't find what they need to prove their case against IBM unless IBM helps them, but don't take my word for it. Here's how Robert McMillan on ComputerWorld phrased it:

"After reviewing Unix source code provided by IBM, The SCO Group appears to be experiencing difficulties in identifying the specific lines of code that it alleges IBM improperly contributed to the Linux operating system. . ."

McMillan has always had a gift for saying complex things in a small space. Now I see he has mastery over understatement, as well.

After all the song and dance, this letter from SCO to IBM tells the tale, then. Nobody in the Linux kernel chain failed to notice some unknown hacker inserting stolen code. That was so much FUD, and I do mean so much.

Remember the MIT deep divers and their alleged discoveries of criminal copying Darl told us about back when? Here's what he told us a year ago:

"I think this business of not having intellectual-property protection or in fact even having a system set up to be able to police intellectual-property violations coming into Linux, that's the part that's really going to the jury right now. . . .

"So we turned a group of programmers loose--we had three teams from different disciplines busting down the code base, the different code bases of System 5, AIX and Linux. And it was in that process of going through the deep dive of what exactly is in all of these code bases that we came up with these more substantial problems. . . .

"And as we dug deeper, we found that we did have significant violations going on with respect to their version of Unix they had licensed from us. . . .

"When we take a top-tier view of the amount of code showing up inside of Linux today that is either directly related to our Unix System 5 that we directly own or is related to one of our flavors of Unix that we have derivative works rights over--we don't necessarily own those flavors, but we have control rights over how that information gets disseminated--the amount is substantial. We're not talking about just lines of code; we're talking about entire programs. We're talking about hundred of thousands of lines of code. . . .

"We're talking about line-by-line code copying. That includes not just the function but the exact, word-for-word lines of code. And the developer comments are exactly, 100 percent the same. The developer comments really get to the DNA of the code. It's one thing to have something look the same, but when the developer comments are exactly the same, that tells you everything you need to know that this is in fact lifted, that it has been copied and pasted from Unix into Linux."

Remember all that? Not now. Seems they can't find for the court what the MIT guys allegedly said they found. Actually, I gather they can't find the MIT guys either, who must have disappeared into the depths or had a clarifying conversation with SCO or an attack of conscience or something. Anyway, SCO can't seem to present that "evidence" to the judge. What they do present, as you will see by particularly their Exhibit G, is causing peals of laughter, because it includes in their list code that isn't in the Linux kernel and never was. Perhaps the MIT materials will show up later, in which case SCO can hardly deny following the Blepp strategy of gradual revelation of evidence.

Instead, SCO is now claiming the entirety of AIX and Dynix/ptx is theirs to control, stating their view that "the entirety of UNIX System V licensed to IBM and Sequent are the lines from which IBM's contributions of AIX and Dynix/ptx are derived." Not thousands of lines. Not millions. Not whole programs. No, it's the whole kit and kaboodle. Who'd a thunk it?

It's their expansive definition of what constitutes derivative code at issue here. That is a far cry from what they announced to the world from the rooftops a year ago, and it is mighty plain now that there was no breakdown on code verification on Linus' part. Nobody failed to sign off on any code. IBM thought it had the right to donate that code, and they so represented. They still think they have the right. In what way does that reflect on Linux?

SCO told us that this was about code from JFS, NUMA etc., but really there is nothing about that code any different from any other line of code donated to Linux by IBM, as far as SCO is concerned. What it turns out SCO is really claiming is that IBM cannot properly contribute code from AIX or Dynix -- even, as IBM lawyer David Marriott phrased at one hearing, "if it is its own home-grown code, if it ever at some point in time touched the AIX or Dynix operating system":

"The AIX work as a whole and the Dynix/ptx work as a whole are modifications of, or are derived from System V, including, but not limited to, the parts that have been identified previously as having been improperly contributed to Linux."

So there you have it, ladies and gentlemen. A contract dispute. Not a failure to police the Linux kernel. Not a breakdown in vigilance or inability to know where code comes from. A garden-variety contract dispute, based on SCO's new interpretation of some old contracts they didn't write or sign themselves. I guess you can't call press conferences about a contract dispute. Who'd care enough to show up? But if you smear Linux, and attack Linus, you not only find more people show up, your stock will temporarily shoot up to the moon, and like-minded souls can sell books galore all about Linus not being the real father of Linux and other fantasies.

Unfortunately for SCO, this argument has a pretty big hole in it. Well. It has several, but let's talk about JFS. Take a look at this 2001 interview with IBM employee Steve Best. This interview predates the acceptance into the kernel of JFS from IBM, one of the high-end pieces of code SCO was (and technically still is) beefing about. Note that in the interview, Best states in black and white that JFS isn't AIX code at all. The JFS that IBM donated to Linux comes from OS/2, not AIX, he says. IBM then later ported it to AIX also:

"3. What are the differences between the Linux version of JFS and the one found on OS/2?

"Steve Best: The JFS for Linux is a port from OS/2 and has an OS/2 compatibility option. The OS/2 source was also used for the JFS2 just release on AIX 5L. There is a JFS1 on AIX and we didn't use this source base, since the OS/2 source base was a new "ground-up" scalable design started in 1995. The design goals were to use the proven Journaling File System technology that we had developed for 10+ years in AIX and expand on that in the following areas: Performance, Robustness, and SMP support. Some of the team members for the original JFS designed/developed this File System. So this source base for JFS for Linux is now on the following other Operating Systems:

OS/2 Warp Server for e-business 4/99 OS/2 Warp Client (fixpack 10/00) AIX 5L called JFS2 4/01"

As for SCO's claims on ELF, here's something for them, an old email from a Novell employee in 1994, when even SCO would acknowledge that Novell "owned" UNIX, saying that Novell had already placed ELF in the public domain:

From: gfd@summit.novell.com (George F Demarest)
Newsgroups: comp.unix.unixware,comp.os.linux.misc
Subject: Re: New Suggestion: Trade-up, UnixWare => Linux
Followup-To: comp.unix.unixware,comp.os.linux.misc
Date: 31 Oct 1994 22:37:42 GMT
Organization: Novell

[snip]

: I'll be testing the new Linux kernel with the ELF Oracle : binaries soon ... it's the only thing keeping us from : converting.

I'd like to point out here, that until Novell placed ELF in the public domain, this would not have been possible. There will be some other interesting announcements in this vein in the coming months.

Maybe like me you are not a programmer and you don't know what ELF is. Here is a description from the manual, "Tool Interface Standard (TIS) Executable and Linking Format (ELF) -- Specification Version 1.2":

"About ELF: Executable and Linking Format The Executable and Linking Format was originally developed and published by UNIX System Laboratories (USL) as part of the Application Binary Interface (ABI). The Tool Interface Standards committee (TIS) has selected the evolving ELF standard as a portable object file format that works on 32-bit Intel Architecture environments for a variety of operating systems. The ELF standard is intended to streamline software development by providing developers with a set of binary interface definitions that extend across multiple operating environments. This should reduce the number of different interface implementations, thereby reducing the need for recoding and recompiling code.

"About This Document This document is intended for developers who are creating object or executable files on various 32-bit environment operating systems. In order to extend ELF into different operating systems, the current ELF version 1.2 document has been reorganized based on operating system-specific information. It is divided into the following three books:

• Book I: Executable and Linking Format, describes the object file format called ELF. This book also contains an appendix that describes historical references and lists processor and operating system reserved names and words.

• Book II: Processor Specific (Intel Achitecture), conveys hardware-specific ELF information, such as Intel Architecture information.

• Book III: Operating System Specific, describes ELF information that is operating system dependent, such as System V Release 4 information.

"This book also contains an appendix that describes ELF information that is both operating system and processor dependent."

So ELF is a public standard, specifically intended for everyone and anyone to be able to use. The disclaimer page states this:

"The TIS Committee grants you a non-exclusive, worldwide, royalty-free license to use the information disclosed in this Specification to make your software TIS-compliant; no other license, express or implied, is granted or intended hereby."

SCO has another problem. Yes, let me count the ways. They argue that AIX can be proven to be a derivative because of this:

"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."

However, all the code they are upset about runs perfectly well on Linux, which has no "UNIX System V base-level functionality required by that feature." And of course, JFS worked fine on OS/2 prior to arriving at AIX.

I actually could go on, but I'll save some for the exhibits, which will be up soon. The PDFs are already available, listed in the Shaughnessy Declaration linked to above. With that introduction, here is SCO's letter.

***************************************************

LAW OFFICES
HATCH, JAMES & DODGE
A PROFESSIONAL CORPORATION
[address, telephone]

 

Todd Shaughnessy, Esq.
SNELL & WILMER, LLP
[address]

Re: SCO v. IBM

Dear Todd:

Accompanying this letter is the Declaration of Chris Sontag evincing SCO's compliance with the Order of Magistrate Judge Wells entered on March 3, 2004 ("Order"). We have also provided IBM under separate cover with numerous CD's and other materials relevant to its discovery requests. Also enclosed at Exhibits A through G are the additional information specified under items 2 through 5 of the Order.

1. SCO has fully complied with the Court's order of December 12, 2003 as clarified and extended by the Court's order of March 3, 2004. In particular, SCO has produced all non-privileged documents IBM has requested in its First and Second Requests for Production that SCO had difficulty in obtaining prior to the January 12, 2004, deadline, including but not limited to those items further requested in IBM's letter dated January 30, 2004.1 A source log identifying the supplemental production is attached hereto as Exhibit A.

2. SCO, based on the information currently available, has identified all specific lines of code that it can currently identify that IBM contributed to Linux from AIX and Dynix/ptx. In addition to the information previously provided in SCO's supplemental answers to interrogatories, SCO has identified additional lines of code in Exhibits B and C. In compliance with the Court's order, these lists are lines or files of code that SCO can identify at this time. These new files represent over 21,000 lines of code. However, based upon the fact that IBM produced the source code in a different format than requested (indeed, a different format than either side had previously produced source code), SCO was able to begin its review of the limited source code provided only recently and therefore is continuing to identify specific lines and expects to find additional files and lines of code, as contemplated by the Court's Order. Moreover, because the source code selected by IBM for production was random snapshots of such code and did not come with programmers' notes, design documents and change logs, SCO will be filing a memorandum detailing the need to obtain a complete production from IBM to further respond to this item, as suggested by the Court's Order. Upon receipt of all necessary materials, SCO expects it will be adding further examples to this list.

In addition, although in Table A of SCO's 70-page January response SCO noted that entire files were copied almost verbatim from Dynix/ptx into Linux, which made the identification of specific lines redundant and unnecessary, SCO nonetheless has specifically identified for IBM those lines of code contributed by IBM from Dynix/ptx in Exhibit D.

3. SCO, based on the information currently available, has attempted to identify the specific lines of code from UNIX System V from which IBM'S contributions from AIX and Dynix/ptx were derived. SCO's ability to respond to this item, however, has been and continues to be severely impaired. First, in the absence of having every version of the AIX and Dynix/ptx code it is difficult if not impossible, to answer this question in full detail. IBM, however, refuses to provide all versions of the AIX and Dynix/ptx code. Second, IBM first provided AIX in a usable format only on March 25, 2004, so there has been limited time to undertake such code comparisons. Third, this is an extremely time consuming process and three weeks is an insufficient mount of time to provide more detailed information.

Notwithstanding the foregoing, as an initial matter, this Item 3 can be responded to by noting that each version of AIX and each version of Dynix/ptx are modifications or derivative works based on UNIX System V. The AIX work as a whole and the Dynix/ptx work as a whole are modifications of, or are derived from System V, including, but not limited to, the parts that have been identified previously as having been improperly contributed to Linux.

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.

Similarly, the Dynix/ptx operating system, in its entirety was either a derivative work based on or a modification of UNIX System V Release 4.2 ES/MP, which includes the following: kernel, interface, system calls, libraries, commands and architectural structure and sequence as licensed to Sequent. As such, no feature of the Dynix/ptx operating system will operate or retain necessary functionality in Dynix/ptx independent from UNIX System V base-level functionality required by that feature, particularly as it relates to multi-processor functions such as RCU and NUMA. Therefore, as noted above, the entire Dynix/ptx operating system is either based on, or is a modification of, UNIX System V Release 4.2ES/MP, and IBM's contributions from the Dynix/ptx operating system to Linux are in their entirety derivative works based on, or modifications of UNIX System V.

Based on the forgoing, the entirety of UNIX System V licensed to IBM and Sequent are the lines from which IBM's contributions of AIX and Dynix/ptx are derived.

In addition to identifying the entirety of UNIX System V as the specific lines of code from which IBM's contributions from AIX or Dynix/ptx are derived, SCO has undertaken the task of identifying the specific lines of UNIX System V found in the selected versions of AIX and Dynix/ptx provided by IBM. By doing so, however, SCO does not in any way admit the relevancy of such information. In fact, SCO steadfastly maintains that this item is not relevant to this litigation nor is it likely to lead to the discovery of admissible evidence. The main issue in this case is whether IBM has breached its contract with SCO because it contributed or otherwise disposed of a part of AIX or Dynix/ptx to others in contravention of the terms of the license agreement. Subject to these forgoing limitations, SCO has identified the lines of UNIX System V from which AIX and Dynix/ptx are derived in Exhibits E and F.

4. SCO, based on the information currently available, has identified all lines of code in Linux in which it claims rights. In addition to the information previously provided in SCO's supplemental answers to interrogatories, SCO has identified additional lines or files of code in which SCO claims rights in Exhibit G. These files comprise an additional approximately 240,000 lines of code.

5. SCO has identified the lines of code that SCO distributed to third parties. In addition to the information previously provided in SCO's supplemental answers to interrogatories, which is incorporated herein, SCO has identified to whom this additional code was released, the date and under what circumstances such code was released. This information is contained in Exhibit G and the spreadsheets found at Bates Numbers 1508045 to 1512471, which identify specifically to whom the code was released, the date and under what circumstances such code was released.


Sincerely yours,

_______[signature]________
Brent O. Hatch

  Encls.

1. The review of privileged documents continues and, to the extent portions of those documents are subsequently determined not to be privileged and otherwise responsive, they will be produced.

 

 


  


Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text | 286 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SkArcher on Sunday, June 06 2004 @ 08:22 PM EDT
So PJ can find 'em



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OY, URLs, etc.
Authored by: SkArcher on Sunday, June 06 2004 @ 08:24 PM EDT
All OT stuff here to keep the main thread clean please.

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[ Reply to This | # ]

Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text
Authored by: fjaffe on Sunday, June 06 2004 @ 08:30 PM EDT
4. SCO, based on the information currently available, has identified all lines of code in Linux in which it claims rights.

But they don't even identify the lines they contributed themselves.... as caldera. I'm so confused.

[Fortunately, not as confused as they are!]

[ Reply to This | # ]

Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text
Authored by: Steve Martin on Sunday, June 06 2004 @ 08:50 PM EDT

In addition to identifying the entirety of UNIX System V as the specific lines of code from which IBM's contributions from AIX or Dynix/ptx are derived, SCO has undertaken the task of identifying the specific lines of UNIX System V found in the selected versions of AIX and Dynix/ptx provided by IBM. By doing so, however, SCO does not in any way admit the relevancy of such information. In fact, SCO steadfastly maintains that this item is not relevant to this litigation nor is it likely to lead to the discovery of admissible evidence. (emphasis added)

Waitaminnit... let me get my bucket of water back out, because I think I'm gonna need to soak my head again. After all the crying that TSG has done that AIX and Dynix are derivative works of System V, now they claim that lines of code from System V found in AIX and Dynix are not relevant??

Someone hand me some aspirin, my brain is about to explode.

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

I want ot see the code distribution list
Authored by: Anonymous on Sunday, June 06 2004 @ 08:57 PM EDT
I saw this at the end

"5. SCO has identified the lines of code that SCO distributed to third
parties. In addition to the information previously provided in SCO's
supplemental answers to interrogatories, which is incorporated herein, SCO has
identified to whom this additional code was released, the date and under what
circumstances such code was released. This information is contained in Exhibit G
and the spreadsheets found at Bates Numbers 1508045 to 1512471, which identify
specifically to whom the code was released, the date and under what
circumstances such code was released."

so is this going to include everyone who downloaded linux off their ftp site (is
my name in the list?). how will they get away with saying "we distributed
these files to a bunch of people under the GPL, but IBM still owns us 50
billion!"

[ Reply to This | # ]

Hatch HAS not withdrawn claims against Linux.
Authored by: skidrash on Sunday, June 06 2004 @ 09:09 PM EDT


I come back again to my theory that in effect SCOG is /is going to claim AIX
& PTX are works for hire. Reading that letter convinces me more than ever.

And that was the plan from the beginning. "win " something from IBM,
probably they wanted a settlement which explains their loud, loud anti-Linux
stance, their threats against AIX users.

After any "win" they'd use the money and any "IP " from the
win to lay claim over Linux.

Note that they're still claiming they "own" those parts of Linux.
Even though ONLY IBM would be liable for contract violations SCOG is STILL going
after AZO.

[ Reply to This | # ]

MIT Gang
Authored by: VivianC on Sunday, June 06 2004 @ 09:32 PM EDT
Seems they can't find for the court what the MIT guys allegedly said they found. Actually, I gather they can't find the MIT guys either, who must have disappeared into the depths or had a clarifying conversation with SCO or an attack of conscience or something.

Can't IBM subpoena these alleged teams from MIT or wherever else? Have they already and I missed it? It sounds like their comments would be relevant to the case. Also, can IBM subpoena people who signed the NDA and have them testify as to what they really saw? SCO won't seem to give them the same show they gave to their NDA people. IANAL, so maybe I'm being logical and not legal.

VivC

[ Reply to This | # ]

SCOG's response to the March 3 court order
Authored by: TomFrayne-WF on Sunday, June 06 2004 @ 09:44 PM EDT
I posted several articles in Yahoo Finance in a thread related to SCOG's
response to the March court order. The thread shows in detail the ways that
SCOG defied the order. Here is a summary::

* SCOG listed no specific lines of AIX/Dynix that it claims IBM contributed to
Linux from either AIX or Dynix
* SCOG did not identify any specific lines of code from SysV from which IBM's
contributions from AIX and Dynix are alleged to be derived
* SCOG listed no specific lines of Linux that it claims rights to
* SCOG did not specify for the lines it claimed in Linux "the nature of
plaintiff's rights, including but not limited to whether and HOW THE CODE OR
OTHER MATERIAL DERIVES FROM UNIX." [Emphasis added.]
* SCOG did not SCOG did not identify with specificity the lines of code that SCO
distributed to other parties

I'll provide links later

[ Reply to This | # ]

MIT Statements Will Kill SCO
Authored by: dmscvc123 on Sunday, June 06 2004 @ 10:46 PM EDT
SCO has a serious problem on it's hands with all their public pronouncements of
what they've already uncovered. They can't on one hand say they've uncovered
tons of code that's been copied due to their teams of analysts while on the
other hand say they haven't been able to find anything from EVERYTHING they've
reviewed before and during the case.

I think they are technically right on the rules of evidence that they don't have
to turn over work done by consultants who aren't going to be testifying (but
their might be some case law out there that says otherwise), but IBM could force
them to either turn over all the analyst info or withdraw their claims.

I'd love for a judge to question them on their public statements of evidence
they had and make them explain. Like how do they explain this yet claim they
need to do more digging?:
"And during the period of time shortly after filing the lawsuit until
recently when they came back and responded, we had a 60 day period there where
we turned 3 different teams of code programmers loose on the codebases of AIX,
Unix and Linux. And they came back with - independently - we had the three teams
- one was a set of high-end mathematicians, rocket scientist, modeling type
guys. Another team was based on standard programmer types. A third team were
really spiffy on agent technology and how all of this technology was built in
the first place. So the three teams came back independently and validated that
there wasn't just a little bit of code showing up inside of Linux from our Unix
intellectual property base. There was actually a mountain of code showing up in
there. Now if you look at the types of code, we really see them in three
different buckets."
http://www.groklaw.net/article.php?story=20040320151425373&mode=print

[ Reply to This | # ]

Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text
Authored by: NastyGuns on Sunday, June 06 2004 @ 11:05 PM EDT

Starting at the bottom of page 5 of the Reply Memorandum In Support of its Motion to Amend the Scheduling Order it states:

SCO requested IBM to produce "all version or iterations of AIX and Dynix source code, modifications, methods and/or derivative works thereof" from 1999 to the present. [Footnote omitted.]

That would agree with their comments made in SCO's Memorandum in Opposition to IBM's 2nd Motion to Compel Discovery.

Yet on the top of page 12 of the Reply Memorandum they state the following:

Many of the discovery disputes in this case have arisen from this fundamental disagreement. SCO needs to inspect the versions of AIX and Dynix, (including logs) that have existed in any form during the period commencing in 1985 and continuing to the present to support the preparation of its jury case, to support alternative theories of liability, to rebut IBM's argument, and - in the first instance - to respond to IBM's discovery requests." [Footnote omitted.]

I'd like to know how it is possible in one instance to argue that they only need from 1999 forward to prove that there is some sorta infringement or wrong doing on IBM's part, yet later state they require from 1985 forward to support it's case.

Besides this being a screw up, the only thing I can even possibly think of why they would want all of this is because they want to try and find the earliest examples of IBM's work that was created and show how it "evolved" from their supposed IP. Barring the fact that it was most likely a clean-room implementation.

I understand in one instance they are referring to presenting their case, and in the other defending themselves from IBM's counterclaims. But the question I ask myself is, what would stop them from using documents produced in one instance for the other. There seems no reasonable way to keep that from happening when things are this joined together. Shouldn't IBM object to this? Which date is it? IANAL by any stretch of the meaning, but that just doesn't make sense. So maybe I'm just missing some critical link in logic. Whatever. To me, it's just another instance where one hand isn't talking to the other.

***************************************************************

I posted the above on the Reply Memorandum In Support of its Motion to Amend the Scheduling Order story, now add this:

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.
and
In addition to identifying the entirety of UNIX System V as the specific lines of code from which IBM's contributions from AIX or Dynix/ptx are derived, SCO has undertaken the task of identifying the specific lines of UNIX System V found in the selected versions of AIX and Dynix/ptx provided by IBM. By doing so, however, SCO does not in any way admit the relevancy of such information. In fact, SCO steadfastly maintains that this item is not relevant to this litigation nor is it likely to lead to the discovery of admissible evidence. The main issue in this case is whether IBM has breached its contract with SCO because it contributed or otherwise disposed of a part of AIX or Dynix/ptx to others in contravention of the terms of the license agreement. Subject to these forgoing limitations, SCO has identified the lines of UNIX System V from which AIX and Dynix/ptx are derived in Exhibits E and F.

The last quote, haven't they said that they had some MIT folks look over the code already? So why now are they doing it all over again? What, a waste.

So now we know, this is why they want every iteration with logs, programmer notes, etc. They're slowly starting to put it all on the line. Now, all it will take is for IBM to blow it out of the water.

P.S.: PJ, I hope you and/or the other great folks working on this intend to do the reply memo up as text. =) Thanks for all the hard work everyone.

---
NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back, please keep me here." Unknown.

[ Reply to This | # ]

And the press is silent.
Authored by: Anonymous on Sunday, June 06 2004 @ 11:49 PM EDT
Gotta love the press on this. Not even a PEEP about the bad news against SCO,
but space for oodles and oodles of coverage of some escaped mental patient
making false accusations about Linus' skills and ethics.

[ Reply to This | # ]

Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text
Authored by: tizan on Sunday, June 06 2004 @ 11:57 PM EDT
Dear Judge,

Please can you tell IBM to run a source comparator on their code and their own
code...
We have been trying it here with the code they gave us and
we keep getting this blue screen that keep telling us "your application has
violated something fundamental , may be the freedom of decent folks but that's
not the point...anyways press crtl + alt + del...if you wish for a fee of $200
you'll get the next release of this software which will reboot your computer
automatically saving you the use of 3 fingers...and we'll give $1 of these to
charity to keep our image looking good"

Its not fair we paid for this comparator, so please judge give us this
case...please please please !

yours
Scologic



---
tizan: What's the point of knowledge if you don't pass it on. Its like storing
all your data on a 1-bit write only memory !

[ Reply to This | # ]

Eyes only code, 3 weeks early
Authored by: TomFrayne-WF on Monday, June 07 2004 @ 12:32 AM EDT
SCOG complains that they only had 3 weeks to review the AIX code IBM sent in
March, and they had to pull engineers from other projects to do the review.
However, if IBM had waited until the April 19 deadline, as SCOG did, SCOG would
not have had ANY time to review the new materials.

This is clearly what was intended by the court order: SCOG was to have answered
all the questions using just the information they had on December 5, when all
further responses by IBM to SCOG's discovery requests were stayed. IBM set up a
trap for SCOG by giving the new information early, and SCOG fell into it.

Further, who were these engineers that were pulled off development to do the
review? The court order said that no SCOG employees were allowed to look at any
of the new code.

[ Reply to This | # ]

Andy Tanenbaum Responds Again
Authored by: dmscvc123 on Monday, June 07 2004 @ 12:43 AM EDT
http://www.cs.vu.nl/~ast/brown/rebuttal/

[ Reply to This | # ]

Talk about a viral license!
Authored by: timthoe on Monday, June 07 2004 @ 01:13 AM EDT
Instead, SCO is now claiming the entirety of AIX and Dynix/ptx is theirs to control, stating their view that "the entirety of UNIX System V licensed to IBM and Sequent are the lines from which IBM's contributions of AIX and Dynix/ ptx are derived." Not thousands of lines. Not millions. Not whole programs. No, it's the whole kit and kaboodle. Who'd a thunk it?
Wow, if SCO's derivative definition was accepted by the court no firm would risk licensing source code from a commercial source. They would have to code it all themselves or cooperate with open source. I have heard of no open source licences as viral as SCO's definition of their license.

[ Reply to This | # ]

It is all a wash. . .
Authored by: Anonymous on Monday, June 07 2004 @ 01:25 AM EDT
1. The AT&T software agreement modification clarified who owned the
derivitive works. The companies that purchased the software licenses own the
derivitive works.

2. Novell as the owner of Unix copyrights, even if it did not need to do so,
waved any and all alleged (or purported) wrong doing on behalf of IBM.

The SCO Group simply can not over come those two hurdles.

krp

[ Reply to This | # ]

Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text
Authored by: blacklight on Monday, June 07 2004 @ 03:18 AM EDT
This letter is overwhelming evidence that SCOG is not complying with the court
order, which requires SCOG to identify the allegedly infringing code with
specificity. Nor is SCOG apparently complying with the current scheduling order
either, but that's another - although related - story.

As a result of Judge Well's order, SCOG already has received discovery from IBM
that is out of all proportion to the flimsiness of their allegations. For Judge
Wells to acquiesce to SCOG's renewed demands is to require the defendant to
provide discovery, based on little more than the plaintiff's allegations: such
acquiescence would be unconstitutional, as it would violate the US
Constitution's Amendment against unreasonable searches and seizures.

[ Reply to This | # ]

In a nutshell
Authored by: Anonymous on Monday, June 07 2004 @ 04:08 AM EDT
There has been no copyright infringement as far as SCO think they will be able to tell. "In addition to identifying the entirety of UNIX System V as the specific lines of code from which IBM's contributions from AIX or Dynix/ptx are derived, SCO has undertaken the task of identifying the specific lines of UNIX System V found in the selected versions of AIX and Dynix/ptx provided by IBM. By doing so, however, SCO does not in any way admit the relevancy of such information. In fact, SCO steadfastly maintains that this item is not relevant to this litigation nor is it likely to lead to the discovery of admissible evidence. The main issue in this case is whether IBM has breached its contract with SCO because it contributed or otherwise disposed of a part of AIX or Dynix/ptx to others in contravention of the terms of the license agreement."

[ Reply to This | # ]

AIX Code when?!
Authored by: Anonymous on Monday, June 07 2004 @ 04:32 AM EDT
we had three teams from different disciplines busting down the code base, the different code bases of System 5, AIX and Linux.

Didn't I just read that they complained to get any AIX-Version only on March this year? How could they have it compared last year then? Someone is lying here...

TToni

[ Reply to This | # ]

Isn't that particular piece of FUD libellous?
Authored by: cheros on Monday, June 07 2004 @ 04:43 AM EDT
The piece you refer to (last year Jan) appears to make a substantial amount of
accusations where we have as yet to see any hard evidence for. Isn't there
enough mileage in that for causing some extra, more personal trouble for Darl?

Just curious..

[ Reply to This | # ]

Brent Hatch's Letter to Todd Shaughnessy, April 19, 2004 -- Exhibit 28 -as text
Authored by: Anonymous on Monday, June 07 2004 @ 05:38 AM EDT
I find this quote interesting:
So the whole thing with Novell was about unclear contract language?

The final problem is that Novell didn't dig to the bottom of their file drawer and find the second amendment to the contract. Once we exerted our second amendment rights, if you will, Novell basically took their ball and went home.

I've tried to follow the Novell case by reading this site, but I didn't know that Novell gave up? Or is this just anoter lie on SCO's part?

[ Reply to This | # ]

How much longer?
Authored by: NemesisNL on Monday, June 07 2004 @ 05:54 AM EDT
I'm dutch so please forgive me if I seem somewhat naive at times :-)

How much longer will the US justice system accept a company lying in broad
daylight? How is it possible that SCO can say one thing in public and state the
opposite in court? Does this judge read the nes at all? Can he?

I find it hard to belive that a simular case like this would last for more then
a few days in the dutch justice system. I might be wrong but I do belive that in
the Netherlands you would not get away with publicly stating you have ,illions
of lines of code that infringe on your copyright and then in court claim you
can't find them.

This case should have been over with a long time a go.

The fact that sco up till now is getting away with this behaviour is exactly why
software patents in the US justice system are lethal. I apearantly do not have
to proof you are in violation of my patent. I just claim it publicly and take
you to court wich will cost you millions. What do you mean you can't afford
that? Ok, let's discuss settlement then.

The only thing I find laughable is the worry for open source. Nobody is going
after some pimple faced kid coding something in his basement. This kid does not
have the kind of money that would make a settlement interesting and the chances
of recovering your court costs are nill. The only people that should be worried
about these patents are the big guys. So proprietary software corporations are
the prime targets here. Not the open source community. Oh IBM and Novell might
be in some trouble but they've got the money to deal with it. But who could be
a prime target? Well .... can you think of a company that has billions in the
bank and is known for it's tendency to settle out of court? I'd know who to
drag to court and it's not the earlier mentioned pimple faced kid.

You might say that some companies can afford to go after the pimple faced kid
because they do not mind lossing some money. They have enough of it.

True but how many pimple faced kids can you take to court before the money runs
out? At an estimated 2 million per case and, ohh, let's say50 billion in cash in
the bank, that would come to...... What do you mean their might be millions of
pimple faced kids you'd have to take to court?

Oh dear....

[ Reply to This | # ]

SCO's case summed up
Authored by: Anonymous on Monday, June 07 2004 @ 08:39 AM EDT
We sued IBM because they made public statements that they were contributing to
Linux. And we don't think that they should have done this.

Our company, Caldera^H^H^H^H^H^H^HSCO was founded as a Linux company and
distributed Linux and contributed to Linux for several years prior to IBM's
involvement in that illegitimate Linux stuff.

Our evidence that IBM's actions are improper is that Linux moved forward fast (a
goal that we ourselves were seeking), and IBM's public statements as referenced
above.

We claim IBM's contributions are improper because we think that the code that
they have contributed is (1) written entirely by IBM, (2) derived from other
code that we have never seen, (3) uses code that we were never able to use
ourselves in any of our products.

Furthermore this code that IBM wrote themselves is our code (despite the fact
that we have never seen it before, can't use it ourselves, and can't understand
it), is surely our code, because some of it was contained in the same products
as entirely different code which we think might be ours (although we are
struggling to actually find our code in these products).

As a result of IBM's wrongful actions, including contributing code that IBM
themselves wrote to Linux, SCO has suffered damages of $1bn^H^H^H^H $3bn^H^H^H^H
$5bn^H^H^H^H $50bn.

We also think that we can revoke IBM's expressly irrevocable license, on this
basis.

We also think that the fact we have never been able to clearly state this theory
until mid 2004, shows that we gave IBM 100 days notice to cure the breach in
March 2003.

Oh, and BTW we own Linux, as despite the express wishes of all the various
copyright holders in Linux, we think all that SCO is public domain, except for
IBM and SGI written-code, which actually belongs to SCO as explained above.

[ Reply to This | # ]

IBM still owns JFS copyright
Authored by: Anonymous on Monday, June 07 2004 @ 10:10 AM EDT
Whatever SCO says, they cannot claim that they own JFS code. IBM clearly wrote
it. While SCO can ask IBM for money for violating contribution questionably
derrivative code, there is no case to ask linux users or vendors to pay
anything, as SCO owns none of the code in question. Perhaps IBM could ask linux
vendors for money, except that they released the code under the GPL.

[ Reply to This | # ]

Stowell comments
Authored by: Anonymous on Monday, June 07 2004 @ 10:32 AM EDT
http://management.silicon.com/government/0,39024677,39121142,00.htm

[ Reply to This | # ]

The derivative theory was there one year ago.
Authored by: rhk on Monday, June 07 2004 @ 10:51 AM EDT
"When we take a top-tier view of the amount of code showing up inside of Linux today that is either directly related to our Unix System 5 that we directly own or is related to one of our flavors of Unix that we have derivative works rights over--we don't necessarily own those flavors, but we have control rights over how that information gets disseminated--the amount is substantial.

The problem of course is that it is hard to prove whether the code is from a derivative works or from a third source. That is what explains the interest in programmers notes, log entries etc. where some programmer may have written "copied fff from ddd" in his/her innocense.

[ Reply to This | # ]

Standards?
Authored by: Anonymous on Monday, June 07 2004 @ 11:41 AM EDT
It then follows that any "funtionality" of code created to comply with
established standards is therefore "derived" from some origninating
work from which the standards evolve.

So this then creates an ownership interest in all that follows?

Nice piece of legal work.




[ Reply to This | # ]

OT: BBC reports MS tried to merge with SAP
Authored by: gard on Monday, June 07 2004 @ 12:28 PM EDT
Hi,

The scrolling headlines banner on news.bbc.co.uk says:

LATEST: Microsoft tried to merge with world's third-largest software firm SAP.
More soon.

gard

[ Reply to This | # ]

Why SCO said Unix in AIX and Dynix is irrelevant; why IBM wants it
Authored by: Dan Lewis on Monday, June 07 2004 @ 04:04 PM EDT
"SCO has undertaken the task of identifying the specific lines of UNIX System V found in the selected versions of AIX and Dynix/ptx provided by IBM. By doing so, however, SCO does not in any way admit the relevancy of such information. In fact, SCO steadfastly maintains that this item is not relevant to this litigation nor is it likely to lead to the discovery of admissible evidence."

IBM will use those lines of code to argue that to the extent AIX and Dynix/ptx are based on Unix System V, they are derivatives in those lines only. Then they will argue that code from those lines (directly derived from System V) was never contributed to Linux.

This will act as a more orthodox counter-interpretation of derivative works to SCO's definition. IBM had a license to make a derivative work and the judge is going to want to see what code IBM thinks is a derivative work, and what code IBM thinks is original. It is important to IBM to contest SCO's definition, so it doesn't become the only available theory of derivative work in the case, and these lines will help IBM clarify its position.

From SCO's point of view, of course, they don't think that this will lead to any admissible evidence, because they don't accept any theory of derivative works except their own. But to call evidence related to IBM's plausible, legitimate legal theory inadmissible is overreaching.

[ Reply to This | # ]

When does a derived work become something else?
Authored by: mobrien_12 on Monday, June 07 2004 @ 08:42 PM EDT
From what I understand, if a derived work has been changed soooooo much that it
is no longer recognizable as a derived work, it is an original work. Please,
correct me if I am wrong on this point.


SCO has been given production AIX code.

Pieces of said code were donated to Linux.

SCO cannot find any SysV code in the donated pieces.

Therefore:

(A) The donated pieces never contained SysV code and are therefore not derived
code or
(B) The donated pieces have changed so much that they are no longer derived
code (if they ever were in the first place).

[ Reply to This | # ]

The relevance of the partial summary judgement
Authored by: Anonymous on Tuesday, June 08 2004 @ 08:04 PM EDT
SCO has been saying that IBM's request for partial summary judgement should be rejected because this case doesn't depend on the existence of SysV code in Linux.

But, they undermine that reasoning by making the following claim:

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.


This statement is true for the Linux versions of the features in question only if Linux contains SysV code! If Linux contains no SysV code, then SCO cannot claim that JFS et. al. cannot operate independent of SysV.

SCO themselves have opened the door to this summary judgement that will cripple them in their other lawsuits, not to mention their Linux licensing business.

[ Reply to This | # ]

OT: Notice how quiet the "analysts" are now?
Authored by: ray08 on Wednesday, June 09 2004 @ 12:10 PM EDT
Where's Bobby Underly and Laura D'Idiot lately?! I suspect they're both
realizing how wrong/stupid they are/were? Suddenly, the truth of this scam is
beginning to "leek" out as we see Caldera failing to produce any
tangible evidence, over and over again.

Hey, Laura, maybe you should start your own anaylst "group"? Get
Bobby and Kenny on your team and name it the Rebel Group!

And Darl, oh Darl, we all miss your entertaining mouth. I've finally recovered
from all of the hysterical "Darlisms". But, alas, it has gotten much
more down to earth now that you've been gagged.

---
Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)

[ Reply to This | # ]

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