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Hearing Set on SCO's Motion to Compel Discovery in SCO v. IBM and Lots More
Friday, August 06 2004 @ 06:35 AM EDT

So we can synchronize our watches, a hearing has been set for arguments on SCO's Renewed Motion to Compel IBM to turn over every scrap of AIX and Dynix code since the universe began, with creators' notes. SCO also wants documents of high-level management and contact information. It has been set for September 2 at 10:00 AM. Judge Wells will preside at this hearing, because it's about discovery. [Cf. SCO's Memorandum in Support]

Pacer reveals that IBM asked for leave to file an overlength memorandum in opposition to SCO's Motion to Compel and got it, up to 14 pages in length. It should show up soon on Pacer, because it was entered on August 5. With that is a Declaration of Amy F. Sorenson with Exhibits. Sealed exhibits.

The September 15 hearing at 2 PM is still on, to hear arguments on SCO's Amended Motion to Dismiss or Stay Count Ten of IBM's 2nd Amended Counterclaims and IBM's Cross Motion for Partial Summary Judgment for Declaratory Judgment of Non-Infringement. This will be before Judge Kimball.

Here's the most interesting news. There is a new IBM Motion to Strike the 7/12/04 Declaration of Christopher Sontag, with supporting memorandum. It's hard to know what this is about until we see the Motion, because the Sontag Declaration was filed under seal. ("203 - SEALED DOCUMENT filed by SCO entitled: Declaration of Chris Sontag in Support of Reply Memorandum Regarding Discovery (blk) [Entry date 07/13/04]"). The Declaration of John Harrop made repeated reference to this Declaration of Chris Sontag, which gives us an idea of what it is about. See especially pages 21 through 23 and 32. A motion to strike indicates it didn't knock IBM's socks off at all, and they think there is nothing there. Hence their motion. The part I am not clear on, because of the way that Pacer lists it, is precisely what they are asking be stricken, so I am very much looking forward to reading this. The reply memorandum referenced is this SCO Reply Memorandum, I believe.

IBM has also sent SCO new interrogatories, the 5th set they have served on SCO. That means they are pursuing some new threads. So IBM is once again on the move. Unlike SCO, they didn't call a press conference or call up their favorite journalist to hint at what we might expect, how great their filing is, and how they will ultimately win in the end, and all that blah blah blah, but they are busy getting the job done.




  


Hearing Set on SCO's Motion to Compel Discovery in SCO v. IBM and Lots More | 263 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Spelling corrections
Authored by: Stoneshop on Friday, August 06 2004 @ 06:46 AM EDT
Go here

---
Rik
IANALJLMOY


[ Reply to This | # ]

Links, OT, etc
Authored by: Stoneshop on Friday, August 06 2004 @ 06:47 AM EDT
Go here

---
Rik
IANALJLMOY


[ Reply to This | # ]

And cave-dwelling, damp, ugly creatures
Authored by: Stoneshop on Friday, August 06 2004 @ 06:49 AM EDT
Go here

---
Rik
IANALJLMOY


[ Reply to This | # ]

And also available...
Authored by: Ruidh on Friday, August 06 2004 @ 06:54 AM EDT
...is Judge Kimball's order to allow IBM to file an overlength reply I quote here in full:
Based on IBM's Ex-Parte Motion for Leave to File Overlength Memorandum in Opposition to SCO's "Renewed" Motion to Compel, and for good cause appearing thereon;

IT IS HEREBY ORDERED that IBM may file its overlength Memorandum in Opposition to SCO's "Renewed" Motion to Compel, not to exceed 14 pages of argument.

Dated this 5th day of August, 2004.

BY THE COURT

<signed>Dale Kimball
I like the "Renewed" in scare quotes.

[ Reply to This | # ]

Pro SCO FUD
Authored by: Anonymous on Friday, August 06 2004 @ 07:06 AM EDT
go here

[ Reply to This | # ]

From Harrup Page 32
Authored by: fjaffe on Friday, August 06 2004 @ 07:20 AM EDT
92. Notwithstanding the following limitations, SCO has undertaken
the tasks detailed in Mr. Sontag’s Declaration, and the numerous tasks listed in
SCO’s Memorandum Regarding Discovery, dated May 28, 2004, regarding the
comparison and tracking of source code. (See Exh. 23.) Mr. Sontag addresses
these issues in detail in his attached declaration. Among the important factors
bearing on the evidence SCO has to date are the following.

93. A comparison of all of the source code in one computer
operating system with all of the source code in another computer operating
system could not be performed manually for purposes of any litigation. A
representative example makes the point. The Linux kernel version 2.4, comprises
approximately 4 million lines of code. The UNIX System V 4.2 MP kernel comprises
approximately 3.4 million lines of code. There are numerous versions of UNIX,
AIX, and Dynix. Assuming even nominal times for reviewing this much code, as
much as 35 man-years may be expended looking for evidence of copying UNIX code
into Linux. Clearly, some means for streamlining the review is needed. Given the
foregoing facts, as well as other significant limitations on the use of
automated search tools (described below), SCO and its experts have not sought to
undertake any wholesale comparison of the source code in any two computer
operating systems. (Sontag Decl. ¶¶ 15, 18-23.)

94. Automated search tools cannot remove this burden completely
because they have very significant limitations. The tools are designed to find
lines of code that are identical or nearly identical in every detail, and they
perform that function well. SCO has sought to modify and improve the tools to
locate lines of code that are not identical but are nearly identical, but the
tools have not performed that function well. Ultimately, the automated tools
simply assist a programmer to locate blocks of code that might have
similarities. The programmer must then visually review the code in a difficult
and labor-intensive process. Often this review is only possible if each version
of the code can be reviewed to follow the changes from one version to the next.
(Sontag Decl. ¶¶ 10-20.)

95. In the face of the foregoing limitations, SCO and its engineers
have sought to compare the source code in UNIX System V with source code in
AIX/Dynix and Linux by making only educated guesses about where similar source
code may appear in the systems being compared. An example of such an approach is
to start by comparing the names of the files in the operating systems. SCO has
considered the structure of the operating systems being compared and has
compared like components with each other (for example, compared filesystems with
filesystems, inter-process communication with inter-process communication,
program loading with program loading, and the like). These comparisons of course
represent only a very small fraction of the total number of comparisons that
could be made among the numerous versions of the UNIX, AIX/Dynix, and Linux
operating systems. (Sontag Decl. ¶¶ 14-23.)

*****
I wonder if IBM is moving to strike the Sontag Declaration because it purports
to explain why SCOX needs more discovery, and because it (just guessing)
attempts to position examples of non-literal copying (to use SCOX phrase) as
smoking-gun evidence of infringement. Perhaps this is where SCOX has told the
court about the "21,000 lines" McBride recently mentioned, but since
they are not identical copies, IBM is moving to strike under the premise that
the contract allows them (or that they have origins other than SCOX, or that
SCOX never identified the nature of its alledged rights in the code, or a whole
bunch of other reasons I can't think of).

What do folks think?

[ Reply to This | # ]

From Harrup on Sontag Deposition
Authored by: fjaffe on Friday, August 06 2004 @ 07:27 AM EDT
Or, maybe IBM wants to challenge this item:
41. As a result of how Linux evolved, there is no “road map” that will allow SCO to trace the migration of UNIX code into Linux. (Sontag Decl. ¶ 57.) One principal way for SCO to discover at least some of the facts essential to oppose IBM’s Tenth Counterclaim is to take discovery to determine who made contributions of source code to Linux.
Perhaps they will use this opportunity to directly challenge SCOX claims regarding non-literal copying against the contract language which states that the contract only covers the SOFTWARE PRODUCT. Could they simply undermine SCOX's entire theory of the case by getting this dropped from the declaration, then pointing out in the hearing on CC 10 that SCOX has failed to provide any evidence, as they previously stated.

[ Reply to This | # ]

Hearing Set on SCO's Motion to Compel Discovery in SCO v. IBM and Lots More
Authored by: Anonymous on Friday, August 06 2004 @ 07:31 AM EDT
What's the penalty for perjury again?

[ Reply to This | # ]

MS Linux
Authored by: Anonymous on Friday, August 06 2004 @ 07:46 AM EDT
http://www.mslinux.org/

[ Reply to This | # ]

Hearing Set on SCO's Motion to Compel Discovery in SCO v. IBM and Lots More
Authored by: jim Reiter on Friday, August 06 2004 @ 09:41 AM EDT
This State Police officer is driving down the road when he
sees a pickup truck with a large wooden box in the back
parked on the side of the road. The driver is beating on
the box with a stick.

After a few minutes the driver gets back in the truck and
starts driving down the road. The driver travels about ten
minutes and pulls of the road and beats on the box again.

The officer follows the truck for about an hour and every
ten minutes the same thing happens. The driver pulls off
the road, gets out of the truck, beats on the box , gets
back in the truck and continues driving.

Finally the officer cannot stand it any longer and pulls
the truck over. He walks up to the driver and asks him
what is going on?

To make a long story short, the driver says "this a half
ton truck and I have a ton of canaries in the box so I have
to keep half of them flying all the time."

I think that McBride has two choices, 1.) keep the law
suits going or 2.) keep the lawsuits going.

[ Reply to This | # ]

OT: Aging Unix Hackers
Authored by: gbl on Friday, August 06 2004 @ 10:36 AM EDT
Dear Darl says in an arti cle, "we have the same great kernel-level programmers that are on our team that came out of AT&T"

(Pause here while brain stops boggling)

Would any seriously good unix code jockey be still working for SCOv2 after all these years? What on earth would they be doing -- not much kernel hacking that's for sure.

Perhaps Darl has them chained up in a basement so that the valuable SCOv2 IP can never leak away.

Maybe there is a need to mount a rescue mission. Anybody have the number for the SPCKP (Society for the Prevention of Cruelty to Kernel Programmers.)

---
If you love some code, set it free.

[ Reply to This | # ]

Here is Chris Sontag's Declaration (well almost)
Authored by: Anonymous on Friday, August 06 2004 @ 10:51 AM EDT
It's quite easy to reverse engineer Sontag's declaration from Harrop and other
public documents in the case (e.g. SCO's rule 56f motion). Here is my first
attempt, I hope to add to or improve this later.

I have summarized what I think the point that SCO is attempting to support (but
you can read Harrop to get the actual wording), via Sontag's Declaration.

Remember what ever is declares isn't presumably these points, but is presumably
what they think are facts in support of these points.

Also remember first few paragraphs of the declaration are probably him telling
us who is he is, why he think's he's
qualified etc.

Quatermass
IANAL IMHO etc

Anyway here goes....


Sontag
======
10.-20.
Automated search tools are limited. After locating similar blocks of code manual
review must be done. A manual review is only possible if each version of the
code can be reviewed to follow changes from one version to the next. (IBM-199
Harrop 94)

14.-23.
Comparing Linux and UNIX is hard. SCO has made educated guesses about what to
compare (e.g. files with similar names, components with similar functionality).
The comparisons done are only a very small fraction of the total number of
comparisons that could be made. (IBM-199 Harrop 95)

15.
Comparing Linux and UNIX is hard. It's easier if they trace the history of AIX
and Dynix, compare that to UNIX, then the matches found could suggest areas to
compare between UNIX and Linux. Otherwise the comparison could take 35 man years
to search Linux code for evidence of copying. (IBM-199 Harrop 59)

15.
Comparing UNIX and Linux is hard there are lots of lines. It could take 35 man
years. Automated search tools are limited. SCO and its experts have not sought
to undertake any wholesale comparison of the source code in any two computer
operating systems. (IBM-199 Harrop 93)

18.-23.
Comparing UNIX and Linux is hard there are lots of lines. It could take 35 man
years. Automated search tools are limited. SCO and its experts have not sought
to undertake any wholesale comparison of the source code in any two computer
operating systems. (IBM-199 Harrop 93)

29.-54.
Comparing Linux and UNIX is hard. It's easier if they trace the history of AIX
and Dynix, compare that to UNIX, then the matches found could suggest areas to
compare between UNIX and Linux. Otherwise the comparison could take 35 man years
to search Linux code for evidence of copying. (IBM-199 Harrop 59)

31.-35.
Tracing derivation of SCO owned UNIX code into Linux would be facilitated if SCO
had access to CVMC (IBM-199 Harrop 61).

35.-36.
SCO seeks all interim versions, version logs, source code control info for Dynix
and AIX since 1984. (IBM-199 Harrop 60)

36.-42.
Examination of lineage of code sequences faces substantial obstacles (IBM-199
Harrop 65).

50.-54.
SCO seeks all design documents, whitepapers and programmer notes since 1984.
Design documents also list authors of code whom SCO could depose. (IBM-199
Harrop 63).

53.
Programming notes list authors of code whom SCO could depose to help SCO
prioritize its search for substantially similar Linux code. (IBM-199 Harrop
64).

57.
There is no roadmap that that will allow SCO to trace UNIX code into Linux
(IBM-199 Harrop 41)
There is no list of all Linux contributors. SCO must review Linux change log.
The change log data is incomplete and contains incorrect data, obsolete data,
nicknames. SCO has initiated review and created a partial list of Linux
contributors (IBM-199 Harrop 42, IBM-199 Harrop 51)


[ Reply to This | # ]

This will be interesting
Authored by: Anonymous on Friday, August 06 2004 @ 12:39 PM EDT
Since SCO has tried to mischaracterize the Wells ruling in their renewed motion
to compel, it will be interesting to see how they handle themselves in front of
her.

[ Reply to This | # ]

SCO's Motion to Compel Discovery of Usable IBM Source Code
Authored by: Anonymous on Friday, August 06 2004 @ 12:58 PM EDT
See, they are probably seeking even more IBM source code to use in their own own
UNIX versions. That would save a lot of R&D/development funds for use in
the courts. It is a win win situation for someone anyway.

[ Reply to This | # ]

Hearing Set on SCO's Motion to Compel Discovery in SCO v. IBM and Lots More
Authored by: Anonymous on Friday, August 06 2004 @ 01:44 PM EDT
I give up. It will take them thirty five man years comparing code in electronic
format, so they want printed programming notes? How long is it going to take
them to wade through a mountain of paper to "narrow down their
search"?

This is just so ***** much gabage!

[ Reply to This | # ]

IBM 213 (Memo in support of dumping Sontag Decl)
Authored by: fjaffe on Friday, August 06 2004 @ 08:24 PM EDT
has been transcribed and sent to PJ

[ Reply to This | # ]

Can anyone say Lanham Act
Authored by: Glenn on Friday, August 06 2004 @ 08:36 PM EDT
It seems to me that all of these admissions by the SCOG in court about their
lack of evidence, directly contradicting their public statements, is provideing
IBM (and Red Hat) ample fodder the Lanham Act violation claims that have been
filed against the SCOG.

Glenn, a member of th IANAL Corp.

[ Reply to This | # ]

  • You betcha - Authored by: Jude on Friday, August 06 2004 @ 11:01 PM EDT
IBM 217 as text
Authored by: fjaffe on Friday, August 06 2004 @ 09:37 PM EDT
Is done and sent to PJ. I'm html challenged, so 213 and 217 are formatted text
files. Any html competent Groklawyers willing to help? email me if you want to
convert them to html. These should be fairly easy (famous last words)

[ Reply to This | # ]

TSG Will Keep Repeating The Same Old Lies
Authored by: Anonymous on Friday, August 06 2004 @ 11:19 PM EDT
TSG has no evidence, but TSG wants $5 billion or more dollars.

TSG has no evidence, but TSG keeps repeating the same public statements
after all their claims have been thoroughly analyzed and shot full of holes.

TSG has no evidence, but TSG gets the Press to publish anything TSG says.

TSG has no evidence, but TSG really wants no evidence so they can con
a local Utah jury without any evidence to get in their way.

IBM had better get all the declaratory and summary judgments before facing
a jury because there is no copyright infringement or breach of contract
after all.

The way TSG certifies some fact only to later state they meant something
different reveals how TSG intends to scam their case. The way TSG recycles
the same public statements after having them completely refuted shows
them to be SCOundrels of the worst kind.

[ Reply to This | # ]

Groklaw Legal Docs section is behind: transcribed #217 IBM's opposn to SCOG's compel motion
Authored by: Thomas Frayne on Saturday, August 07 2004 @ 12:26 AM EDT
I am trying to organize SCOG's and IBM's arguments related to the September 2 and September 15 hearings. I am especially interested in organizing the arguments leading up to IBM's reply memo that is due on August 16.

Today, I updated SCOvIBM-PSJ to add links related to #217, IBM's opposition to SCOG's renewed compel motion, including a link to the text.

Tomorrow, I plan to add summaries of the arguments on both sides of the compel motion before returning to the arguments in preparation for IBM's August 16 memo.

Since Groklaw's Legal Docs section has fallen behind, I am duplicating some of the information that should be there. If you need links to some of the recent court documents, you might try the LQWiki page first cited. If you have a link I missed, please add it there, or in a reply to this note.

[ Reply to This | # ]

Hearing Set on SCO's Motion to Compel Discovery in SCO v. IBM and Lots More
Authored by: eddsouza on Saturday, August 07 2004 @ 03:56 AM EDT
Hi,
I'm starting to render a text version of SCOcormodismiss.pdf (linked in the
article above as " SCO's Amended Motion to Dismiss or Stay Count Ten of
IBM's 2nd Amended Counterclaims") and IBM-152.pdf (linked as " IBM's
Cross Motion for Partial Summary Judgment for Declaratory Judgment of
Non-Infringement.")

I hope no one will mind if I take a while, 'cos I'm waiting for a yell from a
client, whom I've just sent a binary to test out :) and that may interrupt
things a bit.

Ciao,
Eddie.

[ Reply to This | # ]

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