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IBM & SCO File Docs Re SCO's 2 Expedited Motions
Monday, September 27 2004 @ 06:30 PM EDT

Lots of activity on Pacer. Some of the documents are sealed, but four are available. First, IBM has responded to SCO's 2 motions for expedited consideration, the one about the scheduling order and the one asking the court not to consider any dispositive motions until after fact discovery, and SCO has responded to their document with one of their own, a reply memorandum. Naturally, theirs is longer. These are the two documents that Judge Kimball ordered each side to hurry up and file:

#303 - IBM's Opposition to SCO's Ex Parte Emergency Motion for a Scheduling Conference and Expedited Motion to "Enforce" the Court's Amended Scheduling Order Dated June 10, 2004. Note the quotation marks.

#303-A - Exhibit A to #303, a letter from IBM's lawyer Todd Shaughnessy to John Terpstra's lawyer regarding SCO postponing his deposition from September 23 to November 2. Probably November 2.

#304 - IBM's [sealed] Opposition to SCO's Supplemental Memorandum re: Discovery

#305 - IBM's [sealed] Declaration of Ron Saint Pierre

#306 - IBM's [sealed] Declaration of David Bullis

#307 - SCO's [sealed] Consolidated Reply Memorandum in Further Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order and Emergency Motion for a Scheduling Conference

#308 - SCO's Consolidated Reply Memorandum in Further Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order and Emergency Motion for a Scheduling Conference

#309 - SCO's Ex parte motion for leave to file over-length memorandum re: consolidated reply memo

#310 - Judge Kimball's Order granting SCO permission to file its magnum opus, the War and Peace of legal documents, the 80 page one.

Note that SCO's #308 is a redacted version of #307, which IBM indicates is 80 pages long.

There is also the Order, based on the stipulation by the parties, in the SCO v. Novell case, allowing SCO a little more time, until October 1, to file their response.

  


IBM & SCO File Docs Re SCO's 2 Expedited Motions | 355 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Anonymous on Monday, September 27 2004 @ 06:44 PM EDT
.

[ Reply to This | # ]

Overlength Memo - again!
Authored by: red floyd on Monday, September 27 2004 @ 06:46 PM EDT
Maybe if SCOX didn't spend zillions of pages in every filing whining that they
need every internal iteration of every file known to mankind, they wouldn't need
to file motions for leave to file overlength memos!


---
The only reason we retain the rights we have is because people *JUST LIKE US*
died to preserve those rights.

[ Reply to This | # ]

Off topic and links
Authored by: overshoot on Monday, September 27 2004 @ 06:57 PM EDT
and do, please, post URLs using <a href=""> tags.

[ Reply to This | # ]

SCO is still lying through it's teeth!
Authored by: Philip Stephens on Monday, September 27 2004 @ 06:59 PM EDT
They still insist that Judge Wells ordered IBM to hand over every intermediate
version of every file in AIX in Dynix. I can't wait for the hearing where Judge
Wells will be able to correct SCO's lawyers on that point--perhaps even sanction
them for deliberately wasting the court's time?

[ Reply to This | # ]

IBM & SCO File Docs Re SCO's 2 Expedited Motions
Authored by: Anonymous on Monday, September 27 2004 @ 06:59 PM EDT
From 308...

SCO: "Upon even a facial review of the preliminary arguments in opposition
to
IBM's summary judgment motions, the Court would see not only that the
motions are intensely fact-speficic, but also that their lack of any merit shows

that they served no evident purpose other than to burden SCO;"

I know I'm very likely taking this the wrong way, but that OH so sounds like
SCO is saying "It's not fair! Facts! IBM is burdening us with the
truth!"

[ Reply to This | # ]

Transcribing Thread here....
Authored by: LocoYokel on Monday, September 27 2004 @ 07:00 PM EDT
Dibs on 303.

I will get it to pure text but I don't have the template for HTML so someone
send me a template or let me know who to send the .txt to.

[ Reply to This | # ]

Overlength and overdue
Authored by: overshoot on Monday, September 27 2004 @ 07:04 PM EDT
Sheesh -- SCOX reply memo is just the same old whine about discovery and how IBM is being so mean. I really loved the part about how IBM filing dispositive motions at this point in the game is an attempt to deny the Court of its case-management authority.

Bottom line is that instead of replying to IBM, they ignore IBM's memorandum and go off trying to argue about discovery and the merits, again. Nothing there that the Court hasn't already heard several times.

IMHO, the Court won't see a better opportunity to enforce its rules regarding length of memoranda and filing deadlines. Refusing SCOX the overlength permissions would leave them without reply to IBM and (perhaps) put an end to this literary cholera, but since they wasted the chance it wouldn't materially affect the case.

[ Reply to This | # ]

IBM & SCO File Docs Re SCO's 2 Expedited Motions
Authored by: The Mad Hatter r on Monday, September 27 2004 @ 07:06 PM EDT


I can see I'll be busy tonight <GRIN>.


---
Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

The Truth
Authored by: Anonymous on Monday, September 27 2004 @ 07:08 PM EDT
The first truth: Avoid and delay and increase the cost that is all SCO wants to
do. They are hoping that the bill of fair gets so high that IBM or someone will
say "help".

The other truth is this has been nothing but a buy me or we will sue plan from
the start. The new "legal" business model. The problem is SCO picked
the wrong target for the plan.

The final truth: IBM's plan is to now make an example of them.

The truth hurts. We are still waiting to see if SCO has a case anywhere at all.

[ Reply to This | # ]

Quick question re: discovery orders
Authored by: JMAnderson on Monday, September 27 2004 @ 07:11 PM EDT
Which order is SCO referring to when they repeatedly state that IBM has been
ordered to turn over everything that's ever shared a zip code with AIX or Dynix?
I usually have a pretty good memory, but I can't seem to recall anything that
could even be interpreted as requiring that.

---
-- J M Anderson --
IANAL... maybe in ten years

[ Reply to This | # ]

SCOG introduce a new complaint in this case.
Authored by: Anonymous on Monday, September 27 2004 @ 07:17 PM EDT
As well as the usual claims that we have come to know so well, and which are
figments of their own strange world view, in #308 they bring up a new point.
They are now saying that it is an expensive case. This was the only aspect of
their memo that I could agree with.
It is so expensive that it will cost them everything they have....personal
wealth, power, prestige, and influence. Oh, and 31 million dollars.

[ Reply to This | # ]

Can anybody parse this?
Authored by: overshoot on Monday, September 27 2004 @ 07:32 PM EDT
SCOX, page 7, under "SCO seeks the following information:
documents and materials generated by or in the possession of IBM employees involved in IBM's Linux activities, specifically including high-level executives and members of IBM's Board restrictions on use and disclosure as the original licensed UNIX source code itself.
Looks to me like Brent not only burbles in Court, he burbles in writing.

[ Reply to This | # ]

SCOG's cited cases
Authored by: DebianUser on Monday, September 27 2004 @ 07:34 PM EDT
I realize that when you have no case at all, and are merely seeking to spin
the proceedings as far as possible, it must be really hard to find any cases to
support what you are up to.

It must be really painful to see the IBM lawyers blow the citations out of
the water, filing after filing, after ....

Not that I feel sorry for them, mind you.

[ Reply to This | # ]

IBM mistake?
Authored by: trs on Monday, September 27 2004 @ 07:36 PM EDT
In doc-303 page 6, IBM lawyers say "Even if Judge Wells were to permit SCO
additional discovery, we do not believe that any extension to the current
discovery schedule would be warranted"

Doesn't this imply that they could get everything SCO are asking for in a
reasonable amount time?

[ Reply to This | # ]

Bizarreness of SCO's motion to "enforce" scheduling order
Authored by: Anonymous on Monday, September 27 2004 @ 07:50 PM EDT
SCO initial memo to support "enforce" scheduling order, claims

1. Here are loads of statements about the merits
2. IBM is seeking to subvert the scheduling order


IBM opposition claims

3. We can file rule 56 SJ motions at any time, that is specifically allowed by
the rules
4. If SCO wants to talk about merits, they should respond according to rule 56
5. SCO is dilatory with discovery, and wants to extend the schedule


SCO reply in support of "enforce" scheduling order
6. Lots of stuff (same ole, same ole) on discovery and merits
7. P.S. Can we extend the schedule, by an unspecified amount


Does the bizarreness of #7 not strike anybody else?

SCO have filed a motion to "enforce te scheduling order"

And it their reply in support of "enforce the scheduling order", they
are actually asking for an entirely new scheduling order?

Did they forget the title of their own motion?


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

IBM & SCO File Docs Re SCO's 2 Expedited Motions
Authored by: Anonymous on Monday, September 27 2004 @ 07:56 PM EDT
Why all the "sealed" documents ? Any guesses as why they are sealed ?
I am dismayed that there are things in the case that the public is not allowed
to see, and it also makes it very difficult now to follow what is going on.

[ Reply to This | # ]

Off Topic - IBM pays for discovery
Authored by: Anonymous on Monday, September 27 2004 @ 08:01 PM EDT
The Register has an interesting article up today about IBM and Discovery issues.

[ Reply to This | # ]

IBM & SCO File Docs Re SCO's 2 Expedited Motions
Authored by: Glenn on Monday, September 27 2004 @ 08:13 PM EDT
The SCOG keeps harping on the 7200 names that IBM submitted . Wasn't that
list pared to the most important 1000 that the SCOG and IBM were to agree on?
Can anyone with access to dynix and aix source code confirm whether or not
the files themselves contain the authorship information? The linux .c files
contain the copyright owners while the .h files do not, at least the ones I
looked at. This is one of the SCOG's complaints that IBM said that the SCOG
could get all of the information about who contributed to aix and dynix from the
source files themselves while the SCOG is complaining that this ain't so.
I would not think that IBM would be that careless.
We shall see just how well the SCOG can make its point before Judge Wells.

Glenn

[ Reply to This | # ]

  • According to IBM - Authored by: Anonymous on Monday, September 27 2004 @ 10:56 PM EDT
Can't argue facts?
Authored by: Maciarc on Monday, September 27 2004 @ 08:29 PM EDT
Ok, I'm not done reading, but I saw this and had to ask: Does this quote mean what I think it does? IBM-308, page 5, footnote 1, second sentence:
IBM thus left SCO with the option of seeking additional time from the Court without addressing the lack of merit of IBM's motions - a position that would have inevitably invited repetition of IBM's tired, and baseless, refrain that SCO is seeking simply to delay the progress of this case without showing the merits of its position - or presenting the Court with at least some of the many fatal flaws in IBM's motions.
Does this mean: We delayed because: 1) In delaying we didn't have time to argue the facts. 2) If we had argued the facts, they would have said we were delaying to avoid arguing the facts. 3) If we hadn't delayed (i.e. if we had argued the facts)we would have punched holes all through their arguements. If this is what they mean, and if I were the judge, I'd take a big thick sharpie, mark through the entire sentence, then call them up and tell them I removed it because it only showed their stupidity and that fact is not contested. But then again, if I were the judge, they wouldn't have gotten this far before I through the whole lot of them in jail for contempt. IANAL and I don't play one on TV.

---
const int iSCO = 1
const int iIBM = 1
(3,000,000,000=SCO+IBM)=true
//for extremely large numbers of idiots in iSCO

[ Reply to This | # ]

WOW! #303 is the best IBM doc yet...
Authored by: Anonymous on Monday, September 27 2004 @ 08:51 PM EDT
The gloves are definitely off now. There's some real choice quotes in there that make me wince just to read them:
In addition, SCO sought leave on August 19, 2004 to file a "Supplemental Memorandum Regarding Discovery", which Judge Wells granted on September 3, 2004. At IBM's request, which we believe was entirely reasonable, Judge Wells granted IBM the opportunity to submit a response to SCO's brief--SCO's fifth on the same issues (for a total of 88 pages)--and rescheduled the hearing for October 19, 2004. Thus, the hearing scheduled for September 14, 2004 was adjourned solely as a result of SCO's machinations to submit additional briefing on its discovery motions, to which it obviously hoped IBM would not have the chance to respond before the hearing. SCO should therefore not be heard now to complain that its discovery motions are not being heard in a timely fashion.
Moreover, SCO's entire argument for the necessity of a scheduling conference (and presumably another extension of the discovery period) is apparently based on SCO's belief that Judge Wells will grant SCO's discovery motions. SCO goes so far as to assert in its brief that "there is no real chance that the Court will not order IBM to produce the discovery" sought by SCO. ... Obviously, IBM disputes SCO's contention (for reasons set forth in IBM's opposition to SCO's discovery motions, which we will not repeat here) and respectfully submits that the Court should be permitted to reach its own conclusions as to the merits of SCO's requests.
Although we believe SCO's arguments to be meritless, we do not address them here, as the supposed purpose of SCO's motion is merely to seek an extension until the end of discovery to submit oppositions to IBM's motions. Presumably, SCO's oppositions will repeat the very same arguments that SCO has presented here, and IBM will respond to the arguments at that time.
(emphasis in bold was mine, but the underlining was in the original).

[ Reply to This | # ]

IBM & SCO File Docs Re SCO's 2 Expedited Motions
Authored by: Steve Martin on Monday, September 27 2004 @ 09:06 PM EDT
Is there any significance to the fact that TSG's Ex Parte Motion for Leave to
file Overlength Memorandum is numbered two filings AFTER the filing of the
Memorandum for which they were asking permission to file? Does this indicate
that TSG assumed Judge Kimball would allow them to file the 28-page memorandum?
Or am I grasping at straws?


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

[ Reply to This | # ]

Scope of IBM
Authored by: Anonymous on Monday, September 27 2004 @ 09:16 PM EDT
We see the same repeated complaints concerning lack of production of Board of
director minutes, etc. that "... 3) that its Board of Directors never
considered the LINUX project, in which IBM has invested billions of dollars.
This explanation would be inexplicable for any LINUX-related business, much less
from one of the largest and most sophisticated technology companies in the
world."

These guys need to get a clue about what IBM really is. It is a huge
multinational corporation that dwarfs SCO or any of the businesses that most
people deal with on a daily basis. LINUX is by my count one of 43 product areas
and zero of 30 service areas that IBM advertises on their web site (1/73 of
their advertised products and services). Although LINUX may be a big deal for an
individual division of IBM it is virtually insignificant in the big picture for
a corporate giant like IBM. It would not be surprising in the least if the BOD
never directly considered anything about LINUX except the financial results of
the division it belonged to. I expect they spend more time approving the yearly
corporate holiday schedule.

In the end SCO's lawyers are complaining that it is inexplicable that the
elephant does not act like the ant. Is this just posturing or are they really
that dense?

IANAL but I have lived in IBM "country", toured their labs, grown up
with the children of their engineers and managers, seen the inside of their
equipment and systems and even soldered some of their circuit boards.

[ Reply to This | # ]

The case as a game (racketball)
Authored by: Anonymous on Monday, September 27 2004 @ 09:29 PM EDT
Maybe I am just starting to understand a little of what is happening. It
started out with IBM responding to SCO paragraph by paragraph. Where SCO did
not do that with IBM, IBM claimed that SCO conceded the issue.

Now, IBM is ignoring SCO's basic and repeated filings and "pounding"
on the facts AND the law. SCO is claiming that, since IBM did not refute what
they wrote, IBM concedes the point. SCO is obviously trying to pull a fast one
by getting everyone to think the court ordered IBM to produce what it wants.
(It the trasnscript, Frei made a reasoned and cogent argument as to why SCO
should get all the intermediate files. The first time that request made sense
to me.)

IBM, by not responding, AT ALL, to that presentation is also trying to get it
ignored. This strikes me as the sort of thing good lawyers would do.

Back to the post title, this is starting to look like a type of racketball where
the point is not to always pull a "put-away" shot but to control the
ball position in the volley so that your opponent must return to you, if he can
return at all. I see IBM just dominating the court [;)] forcing SCO to run all
over just to keep up. SCO is trying to take control, but all they have is this
feeble discovery request (and delay) to keep them in the game.

I think it would be foolish to declare a winner on any single point because SCO
suprised me with a reasonable, if invalid, argument. (IBM has already provided
over 200 versions of AIX and Dynix, that should provide enough of a roadmap for
SCO even without the intervening files.)

Did I just catch a vision everyone else has been enjoying?

-- Alma

[ Reply to This | # ]

Again, but better formatted... ugh!
Authored by: Rasyr on Monday, September 27 2004 @ 09:47 PM EDT

I had not realized it before, but in trying to read (it hurts the brain) SCO's document (#308), it finally hit me.

Apparently it all boils down to SCO saying that IBM home-grown code in AIX and Dynix are derivative of Unix, and thus IBM can make them NOT share it. Because of this claim, they are saying that ANYTHING and EVERYTHING that IBM donated to Linux is derivative of Unix, and thus Linux is violating their (alleged) copyrights.

Here's the kicker: This document is NOT saying that there is Unix in Linux. They are saying that there is AIX and Dynix in Linux, and that they want every single iteration of every single file in order to prove that there might once upon a time been even a little smidgen of Unix code in the files donated to Linux.

If they can prove that, then they do control the code (even according to IBM's interpretation apparently). To them it wouldn't matter that a file which once contained a single line of Unix code may have been entirely scrapped and written over from scratch. If it has the same file name, then to them it is theirs.

I would almost be willing to bet that the "mountains of code" is in actuality all those files that IBM publicly donated, period, end of story (remember the code from sequent that they displayed at that one conference....). It begins to make a twisted sort of sense now.

Comments on my theory?

[ Reply to This | # ]

SCO needs time for discovery - but is not deposing witnesses - why? Delay of course.
Authored by: Anonymous on Monday, September 27 2004 @ 09:57 PM EDT
All this hot air from SCO.

It has had two years to depose witnesses - fact witnesses, expert witnesses.
Yet it deposed only one third party witness. Why? DELAY DELAY DELAY.

[ Reply to This | # ]

Who are these people?
Authored by: spuluka on Monday, September 27 2004 @ 09:57 PM EDT
#305 - IBM's [sealed] Declaration of Ron Saint Pierre

#306 - IBM's [sealed] Declaration of David Bullis

And what do you think they have to say?

---
Steve Puluka
Pittsburgh, PA

[ Reply to This | # ]

Curiousity - why does TSG ask what IBM contributed to Linux
Authored by: Anonymous on Monday, September 27 2004 @ 10:11 PM EDT
Just a curious thought as I read (and re-read thru all the documents so far).
Why should The Sco Group have so much trouble not knowing what IBM has
contributed to Linux? in the countersuit Copyright suit IBM has filed against
SCO, IBM has already identified most if not all of IBM's contributions. Surely
they (TSG) could start from there to identify & depose programmers?

Simba
Engineering

[ Reply to This | # ]

Arbitration proceedings
Authored by: nilsh on Monday, September 27 2004 @ 10:18 PM EDT
Regarding sealed documents and bussiness secrets..

Are arbitration proceedings (in Swedish: "skiljedomsförfarande")
common in the US?

[ Reply to This | # ]

What it all boils down to....
Authored by: Dave23 on Monday, September 27 2004 @ 10:34 PM EDT
Essentially, yes.

This is the SCO "contagion theory" of copyright, or actually, in contractual terms (which is — SCO will now tell you, despite all their public copyright infringement claims, is what they're really arguing), their "contagion theory" of contractual control of distribution.

Both are wrong. Copyright doesn't work that way, at least not in the Federal Circuit that Utah is in. The old AT&T / IBM contract doesn't work that way, as a fistfull of declarations made by the principals state.

Both SCO contentions were and are either misapprehensions of the copyright law or misreadings of the old AT&T / IBM contract.

Because Judge Kimball has made no decision as to that misapprehension or that misreading, SCO goes on its merry way, demanding discovery under the presumption that both bits of nonsense happen to be true.

Since discovery is painful to the respondent (something that SCO very well knows), and because they darned well know that once Kimball decides each PSJ (in a way that actually lays down the law for the case), avenues of discovery become foreclosed to SCO. Hence the desire to hasten the discovery process and delay the PSJ processes comes through very transparently: Oh, no! Judge Wells defered a court date! It's after the Judge Kimball's PSJ hearing! It's all IBM's fault! Wah! We want to abuse discovery!

(If you've ever worked in Artificial Intelligence, this is an analogy you might consider: It is curious how the whole process is like a breadth-first tree search (discovery), where PSJ's are used to force the searcher to "prune" the tree. But if you want the search to go on as long as possible, you certainly don't want your search-tree pruned! Rather, you do anything to avoid that, including writing incomprehensible gigabriefs, demanding repeated conferences, and generally being mulish and squalling as loud as possible — as someone mentioned, figuratively behaving like a baby throwing the bottle out of the perambulator.)

You might also think of it as a sort of quantum probability situation, where two superimposed states of law exist side-by-side until the court makes a decision, and either the IBM-world (which I'm confident is the real world), or the SCO-world will stand, and the other collapses. (This is very much what happened in the SCO v. DaimlerChrysler case: almost all of the SCO-universe collapsed in a very short period of time, as the judge there made her decision.) It's just that h (Plank's constant) is much larger in the SCO v IBM (and SCO v AutoZone) cases than it was for SCO v DC.

IANAL

---
Gawker

[ Reply to This | # ]

IBM & SCO File Docs Re SCO's 2 Expedited Motions
Authored by: Anonymous on Monday, September 27 2004 @ 10:41 PM EDT
I'm not fond of the tone of IBM's #303. It's too irritated and exasperated with SCO's behavior. It underlines how often SCO has delayed things. IBM whining about SCO behavior, and SCO whining about IBM behavior, is an even match. IBM pounding the law and pounding the facts, and SCO whining about IBM's behavior, is not.

[ Reply to This | # ]

Who wrote--I mean, cut-and-pasted--this stuff?
Authored by: rand on Monday, September 27 2004 @ 10:55 PM EDT
...including high-level executives and members of IBM's Board restrictions on use and disclosure as the original licensed UNIX code itself.
I can't go on...the pain..the laughter is too much...the pain...

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL and so forth and so on)

[ Reply to This | # ]

duh! thank you Mr Obvious
Authored by: Anonymous on Monday, September 27 2004 @ 11:28 PM EDT
i think that has been obvious for some time and PJ and many others more
knowledgable than myself have analyzed and destroyed that argument. On a
positive note, even the last guy to finish a marathon gets recognition for
having run the race.
Here's your sign!

[ Reply to This | # ]

This doesn't change anything
Authored by: fxbushman on Monday, September 27 2004 @ 11:53 PM EDT
It is the same old story in different clothing. They *have* AIX and Dynix. If
they think having AIX or Dynix in Linux is some kind of offense, all they need
to do is make the comparisons and show that there is AIX and Dynix in Linux.
Either they haven't done that or they did and didn't find anything. They do
seem, at times, to claim that although IBM owns AIX and Dynix they, SCOG, have
the contractual right to control it.

But you never know with SCOG exactly what they are claiming today. It shifts.
The one constant in this farce is SCOG's wish to avoid adjudication of the
lawsuit they brought. This tells us that they know they cannot win it and have
know that from the beginning. Their aim was not to win a lawsuit. It was
something else. What? We have heard a number of theories here. My favorite is
that the lawsuit was an effort to get IBM to buy them out. When that failed, the
fallback position was simply to stave off destruction and bankruptcy as long as
possible, so that the officers of SCOG woudl be able to draw their fat salaries
as long as possible. They must now know that they, the officers, are infamous
and will not work in the IT field again.

[ Reply to This | # ]

SCOG's main argument
Authored by: Thomas Frayne on Tuesday, September 28 2004 @ 12:57 AM EDT
SCOG's main argument is that, due to IBM's discovery malfeasance, SCOG has not
had a reasonable opportunity to find the evidence it needs to defeat IBM's CC10
PSJ motion. If Judge Kimball suspects that SCOG has not had ample opportunity
to find and present this evidence, his best bet is to delay ruling on the PSJ
until SCOG has presented enough arguments to allay this suspicion. This might
be after the telephone conference, after, SCOG's October 1, memo, or after the
October 19 hearing. If the court rules that SCOG has justified additional
discovery relative to CC10, he might even wait until after that discovery is
complete.

SCOG has mixed multiple other issues in with this main issue: e.g., two other
PSJ's, discovery related to SCOG's contract claims, the history of the discovery
procedings. I would like to filter out all the side issues, and focus on IBM's
and SCOG's arguments related to this main argument, especially the arguments
related to the question: has SCOG justified getting more discovery related to
CC10, or more time to argue this point before a ruling on the CC10 PSJ?
Further, I would like to restrict this exercise to the time frame before October
19, when IBM's discovery malfeasance is still not decided.

To decide that SCOG has not justified further discovery without deciding that
IBM committed no discovery malfeasance, Kimball would have to decide that no
amount of the discovery that SCOG has requested could lead to enough factual
evidence related to CC10 to create a genuine issue of material fact that would
have to be decided by a jury. IBM has argued that, since the only relevant
facts that are not already agreed concern the existence of material portions of
Linux with substantial similarity to protectable code in SysV, SCOG does not
need all iterations of AIX and Dynix to find those facts. SCOG says it needs
those iterations as a road-map, to find the hot spots in Linux for further
study. It also says that, in discovery, relevance must be interpreted broadly.

IBM argues that no matter what is in the iterative versions all that matters for
CC10 is the substantial similarity between Linux and SysV, and IBM cites the
case law to back up its argument. SCOG does not discuss how it could use the 2
billion lines of code to find the hot spots that would take 25,000 man-years to
find by a direct comparison. Extrapolation give 14,000,000 man-years to find
the hot spots, but SCOG claims that IBM has tools (CMVC?) that would accomplish
this quickly. IBM presented a declaration that gave 10 hours of computer time
taken to do a direct comparison, but argued there was no such tool, and that
producing 2 billion lines of internal iterations of AIX and Dynix would take
many weeks or months, and SCOG would still have to start making the road map it
wanted.

The road map argument is potentially the best argument SCOG has to delay a
decision on the CC10 PSJ while SCOG does related discovery, but this argument
has a gaping hole: if code from SysV is in a module in an iteration of AIX or
Dynix, and that code is substantially similar to code in the same module in a
release that contains contributions to Linux, then the code in Linux is
substantially similar to the code in SysV. What is this magical procedure that
will locate this code in 2 billion lines of AIX and Dynix more efficiently than
it can be located in a few million lines of Linux? SCOG needed to describe this
procedure in detail. It did not.

According the the March order, SCOG also had to justify its need for more
discovery before the court would order more. With respect to CC10, I think that
justification would have to specify what evidence it hoped to find to defeat the
CC10 PSJ, and what was the basis for that hope. In all the memos SCOG has
produced, I can't recall anywhere that they did that.

[ Reply to This | # ]

SCO not relying on Rule 56(f)?
Authored by: marbux on Tuesday, September 28 2004 @ 12:59 AM EDT
I'm thoroughly amazed. SCO is now claiming that it is not relying on Rule
56(f)--and has not relied on it--to allow further discovery before the court
considers IBM's summary judgment briefs. It claims its relying only on the
court's discretion to delay rulings on summary judgment motions until discovery
is completed. See SCO's consolidated reply, pg. 21, PDF pg. 24.

So SCO's affidavits are now not only not directed to showing a genuine dispute
over material facts, they're not directed to Rule 56(f) either? Why, pray tell,
were they filed at all? Does this position pass the red face test?

[ Reply to This | # ]

What it all boils down to.: see footnote 2
Authored by: ile on Tuesday, September 28 2004 @ 01:14 AM EDT
See footnote 2 of SCO's redacted document, where we can all read in black and
white a clear exposition of SCO's harebrained contention: SCO's contract claim
is not limited to AIX and Dynix as a whole being derivatives of the original
licensed product (which might or not be true: how much original System V code is
there in those?), but that the fact that some contributions of IBM to Linux had
been in AIX violates the agreementes, since those "things" must be
also derivatives of UNIX.

Linus Torvalds put it simply and masterfully: what _are_ this guys smoking?

[ Reply to This | # ]

SCO's theory du jour
Authored by: gdt on Tuesday, September 28 2004 @ 01:30 AM EDT

That's a pretty good summary of SCO's current theory.

The problem for SCO is that because the discovery hearing will now be after the CC10 PSJ ruling the allowable theories may be circumscribed (and even if Kimball rejects PSJ he can do it in such a way that establishes the Gates Rubber test as the gatekeeper for SCO's future derived works theories).

Which is why I imagine SCO are mightily upset at their late filing leading to IBM sucessfully getting the discovery hearing delayed until after the CC10 PSJ hearing.

I'm not convinced that SCO's claims about IBM's discovery are completely meritless. IBM have a history of playing hardball with discovery. And Mr Frei made two good points: Gates Rubber allows the probative consideration of the copying of protected elements (which gives a way into AIX and Dynix changes, not just the AIX and Dynix releases), and the AIX programmers' check in comments, working papers, etc are discoverable as they may be reasonably expected to contain admissions as to SysV->Linux.

But there's so much dross in SCO's filings and hearings that you've got to wonder if these points will ever be found, let alone considered.

None of the above should be taken to mean that I think SCO have a snowball's chance should all this get to trial, more that Frei seems to be a good advocate, something we haven't seen much of from the SCO side to date.

[ Reply to This | # ]

Typo in the order extending time
Authored by: gdt on Tuesday, September 28 2004 @ 01:44 AM EDT

Anyone else notice the typo in the Order Extending Time which SCO prepared, corrected by hand?

It is hearby ordered that the Defendant^Plaintiff The SCO Group, Inc. may have up to and including October 1, 2004 in which to file a memorandum in opposition to Defendant's Second Motion to Dismiss.

Yes it's a common mistake, but let's hope for SCO's sake it wasn't Kimball wielding the correcting pen :-)

[ Reply to This | # ]

Interrogatory 5 ( and 4)
Authored by: rand on Tuesday, September 28 2004 @ 02:40 AM EDT
I just noticed that Int.5 requests
...the identities of "IBM or Sequent personnel that work or worked on developing source code, derivative works, modificatuions or methods for AIX, Dynix, and Linux, specifying for each person their precise contributions to each."
especially where it says "...AIX, Dynix, and Linux, specifying for each person their precise contributions to each." This construction, which SCO has never challenged or changed, would require IBM to know persons who worked on all three (and their precise contributions to each, of course) which is probably at least 3^3=27 times harder than otherwise.

Similarly, Int.4 asks about access to UNIX and AIX and Dynix.

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL and so forth and so on)

[ Reply to This | # ]

IBM & SCO File Docs Re SCO's 2 Expedited Motions
Authored by: Greebo on Tuesday, September 28 2004 @ 03:06 AM EDT
SCO's Consolidated Rely Memorandum in Further Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order and Emergency Motion for a Scheduling Conference is just a complete rehash of every other argument we have seen before.

We're even back to the old argument that any code that touched System V code is tainted and therefore derivative.

and this is even better....

In particular, the outstanding programming history discovery may contain programmer admissions and comments on which courts have heavily relied in copyright infringement cases.

So what are they expecting to find? A comment that says "I've obfuscated this code because it came from system V. I hope SCO don't find out!" or maybe "Hey Linus - This is really SCO's code, but please don't tell them. It's OK to include in the Kernel - honest!"

Unbelievable.

Greebo

---
----------------------------- ------------
Recent Linux Convert and Scared Cat Owner

[ Reply to This | # ]

Lotsa confidence
Authored by: Anonymous on Tuesday, September 28 2004 @ 03:31 AM EDT
"SCO submits that IBM should have long ago produced, and that the
Magistrate Judge will soon order (and, as to certain discovery requests,
re-order) IBM to produce, the discovery at issue. IBM has not offered (in any of
its briefs) any basis to dispute that conclusion."

Love that "the Magistrate Judge will soon order..." Gotta give TSG
credit trying.

[ Reply to This | # ]

Who 'Owns' AIX and Dynix? The real question.
Authored by: jacks4u on Tuesday, September 28 2004 @ 03:47 AM EDT
An analogy, using pattented instead of copyrighted materials: I purchased a table saw from tablesawsRus, their pattented thigie, and used it to build a bunch of book shelfs, which I sold, or gave away (it doesn't matter which ). Under SCO's theory of IP rights, and interpretation of contracts, then tablesawsRus 'owns' those bookshelves. I don't mean own, in the sense of title, or use, but in every other respect. They want to dictate who can recieve those bookshelves, and under what conditions, which are basic rights of ownership.

That's the real question here. Who owns AIX and Dynix.

IANAL, and could be entirely wrong, But SCO seems to want to exert ownership rights to AIX and Dynix.

jacks4u

[ Reply to This | # ]

Question for legals
Authored by: jmc on Tuesday, September 28 2004 @ 04:34 AM EDT
It seems that the system is:

1. One side makes a motion.
2. The other side replies.
3. The first side answers only the points the other side made.

Judge K made clear in the hearing 2 weeks ago that he hates repetition -
something that SCO seem to have forgotten.

Could Judge K cut the Gordian knot on this one and say that as SCO has violated
the convention here he'll strike everything except one memo to compel, IBM's
reply to that and SCO's reply to that plus any arguments about striking
affidavits filed with those?

[ Reply to This | # ]

Interesting claim form SCO's Consolidated Reply
Authored by: Anonymous on Tuesday, September 28 2004 @ 11:17 AM EDT
"IBM's motion for summary judgement on SCO's contract claim is predicated
on delcarations from individuals who, according to transcripts that were in
IBM's possession, gave prior sworn testimony -- long before they came to
represented by IBM and much closer in time to the events at issue -- that
directly undermines their declarations in this case and IBM's contract
interpretation argument"

Are they referring to something from the Berkeley case? What could possibly
undermine their declarations in this case?

[ Reply to This | # ]
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