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SCO's Memo in Opposition to IBM's Motion to Strike Materials - as text |
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Thursday, December 09 2004 @ 04:20 AM EST
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Here's SCO's Memorandum in
Opposition to IBM's Motion to Strike Materials Submitted by SCO in
Opposition to IBM's Cross Motion For Partial Summary Judgment [PDF], as text, thanks to fudisbad, who transcribed it and helped me code it. Here we are treated to SCO's novel opinion that the declarations of Chris Sontag, Sandeep Gupta, and John Harrop should not be stricken because although they are "qualified to render opinions as experts, none of the three declarants offer testimony that requires expert qualifications". I suspect they don't want them testifying at trial as experts. A lay person is, according to SCO, perfectly capable of testifying as to whether code in Linux is similar to code in Unix, despite a world-renowned expert for IBM, Dr. Randall Davis, saying that he looked but found no identical or similar code.
All this document is about is why SCO needs more time for discovery, so no experts are needed for that, they are saying. SCO isn't
attempting to resolve this motion on the merits. SCO is merely
opposing IBM's motion under Rule 56(f), so all they want to talk about is "what
discovery SCO needs and the reason why it needs it." The Gates Rubber test Dr. Davis talked about doesn't even come into the picture yet, SCO says, because they haven't said anything about any copyright infringement, just that there is some evidence of Unix code in Linux. All they need to do is tell the judge what experts *could* look for and find, if the judge will only grant them world enough and time. These three declarants, Sontag, Gupta and Harrop, are just explaining what SCO would need before it could hop on to its turtle and waddle off. IBM, according to SCO, is trying to go too fast, whereas there is still lots more to dig and look for to prove SCO's case. Anything is possible. Why, Mr. Gupta provided specific examples of SCO UNIX code in Linux, although he didn't say whether any of the Linux code infringes any of SCO's copyrights. But, hey, who knows? If they keep digging, they might find some: "Mr.
Gupta's
declaration covers five principal areas: 1) The UNIX Read-Copy-Update
("RCU") routines which can be found
in Linux. 2) the UNIX Inter-Process Communications ('IPC') Code was
copied into Linux;
3) Sequent employees had access to UNIX RCU and could have copied that
into Dynix,
which was released into Linux; 4) the User Level Synchronization
routines of UNIX and
Linux are substantially similar; and 5) the UNIX Inter-Process
Communications ('IPC') code was
copied into Linux." So far, SCO says, they haven't had a chance to depose any of the contributors to Linux, despite filing this case back in March of 2003, so they need more time. And Mr. Gupta noticed some similarities in things like header files and RCU, and they need to pursue that dead end some more. Then they infuriatingly quote both Linus and Andrew Morton out of context, so that it might sound to a non-tech judge like maybe there are some problems in Linux with shared libraries, whereas they were talking about other parties in theoretical situations. All SCO says is, they need to look into that some more. And more on the theme that IBM needs to give them early versions of AIX, and that IBM's not doing that is significantly hampering SCO's discovery, don't you know. They don't mention that IBM hasn't turned over the early code because the court said they didn't have to. But SCO makes it sound like IBM has been delinquent, holding back. My favorite line, by far, however, is where SCO, trying to establish that the declarants are testifying from personal knowledge, writes: "Indeed, Mr. Sontag has first-hand knowledge of the obstacles SCO
has
faced and continues to face in identifying substantial similarities
between UNIX
code and Linux code." Anyone else would draw the conclusion that they were wrong in bringing a lawsuit based on infringement that they can't find. SCO, being SCO, concludes instead that it would like time for more discovery. They are like gambling addicts, tapped out and begging for more chips so they can try just a little bit longer to earn back all they have lost. If you want to really blow a gasket, take a look at footnotes 2 and 3, where SCO tells the court that Minix is derived from and based on Unix, that Linus was a student of Andrew Tanenbaum, and that anonymous persons donate code to Linux. This nonsense has all been answered already by those involved ( cf. here and here), as the whole world learned when ADTI tried to pitch their book making similar allegations and were shot down by simply everyone who matters in IT. Naturally, that doesn't hinder SCO from asserting it again. I knew the minute the ADTI book was announced that their "research" would likely show up in the SCO v. IBM trial, as I suspected that it was done for that very purpose. Lo and behold, the discredited info shows up. At least SCO didn't quote Linus that Santa Claus wrote Linux. *************************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Robert Silver (admitted pro hac vice)
BOIES. SCHILLER & FLEXNER
[address, phone, fax]
Frederick S. Frei (admitted pro hac vice)
Aldo Noto (admitted pro hac vice)
John K. Harrop (admitted pro hac vice)
ANDREWS KURTH LLP
[address, phone, fax]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP
Plaintiff/Counterclaim-Defendant
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION
Defendant/Counterclaim-Plaintiff
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PLAINTIFF/COUNTERCLAIM DEFENDANT SCO'S MEMORANDUM IN
OPPOSITION TO IBM’S MOTION TO STRIKE MATERIALS SUBMITTED BY SCO IN
OPPOSITION TO IBM’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. 2:03-CV-0294 DAK
HonorabIe Dale A. Kimball
Magistrate Judge Brooke C. Wells
|
i
TABLE OF CONTENTS
PRELIMINARY STATEMENT |
1 |
ARGUMENT |
4
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I. SCO's Declarants Presented Factual
Testimony Based
on Their Personal Knowledge To Demonstrate SCO's Need for Further
Discovery Under Rule 56(f) |
4
|
A. Chris Sontag Presented Facts Showing the Scope of
the Discovery SCO Needs |
4 |
1. The Magnitude of the Discovery Task
Based on the
Amount of the Source
Code
|
4
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2. The Tools SCO Could Use to Show
Copyright
Infringement |
5
|
3. The Discovery SCO Needs and Can Use to
Respond to
IBM's Tenth Counterclaim
|
6
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B. Sandeep Gupta Presented Facts Showing
that Linux
Contains Source Code Copied from UNIX |
7
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1. The UNIX Read-Copy-Update ("RCU")
Routines Can be
Found in
Linux
|
7
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2. Sequent Employees Had Access to UNIX RCU
and Could
Have Copied that Into Dynix, Which was Released into Linux
|
8
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3. The User Level Synchronization Routines
and Inter
Process Communication Source Code and Header Files of UNIX and Linux
are Substantially Similar
|
9
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4. Linux has Copies of UNIX Interface and
Header and
Init and Executable Linking Format ("ELF") Code |
10
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C. John Harrop Presented Facts Showing the
Procedural
Posture of the Case and SCO's Unsuccessful Attempts to Secure Needed
Discovery From IBM |
11
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1. Facts Giving Rise to the Case and the
Procedural
History of the
Dispute
|
11
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2. The Impact of IBM's Tenth Counterclaim
on the
Discovery SCO
Needs
|
12
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3. Depositions of Contributors are Needed
to
Determine the Origins of the Linux Source Code
|
12
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II. SCO's Declarants Presented Proper
Declarations
and IBM's Motion to Strike Should be Denied |
13
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A. SCO's Declarants Presented Testimony
Based Upon
Their Personal Knowledge |
13
|
2
1. Mr. Sontag's Declaration was Based on
His
Personal Knowledge Developed During His Education, Career and
Participation in this
Case
|
14
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2. Mr. Gupta's Declaration was Based on His
Personal
Knowledge Developed During His Education, Career and Participation in
this
Case
|
16
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3. Mr. Harrop's Declaration was Based on
His
Personal Knowledge and Participation in this
Case |
18
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4. IBM's Grounds for Striking Seventy-Two
Paragraphs
of the Harrop Declaration are Baseless
|
18
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B. SCO's Witnesses Do Not Present "Opinion"
Testimony
Within the Scope of Rule
702 |
23
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1. The Declarants Present Facts -- Not
Opinions -- in
Their Testimony |
23
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2. Even if Treated as Opinion Testimony,
The
Declarants Statements Are Admissible Lay Opinion |
25
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C. Even if the Court Concludes the
Witnesses Should
be Treated as Experts, SCO's Declarants Can Qualify as Such |
30
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D. The Court Should Reject the Drastic
Remedy of
Striking Declarations |
31
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CONCLUSION |
32
|
ii
TABLE OF AUTHORITIES
FEDERAL CASES
Aoki Technical Laboratory v. FMT Corp., Inc.,
No. Civ. 96-042 - JD,
1999 WL. 33601097 (D.N.H., Feb. 3,
1999) |
31
|
Bank of China, New York Branch v. NBM LLC, 359 F.3d 171 (2d
Cir.
2004) |
28 |
Burton v. R.J. Reynolds Tobacco Co., 183 F. Supp. 2d 1308 (D.
Kan.
2002) |
30
|
Celotex Corn. v. Catrett, 477 U.S. 317 (1986) |
22
|
Church of Scientology Flag Service Organization, Inc. v. City
of
Clearwater, 2 F.3d 1514 (11th Cir.
1993) |
22
|
Fenstermacher v. Telelect, Inc., 21 F.3d 1121 (Table), 1994
WL 118046
(10th Cir. Mar. 28, 1994) |
26
|
Gates Rubber Co. v. Bando Chemical Industrial, Ltd., 9 F.3d
823 (10th
Cir. 1993) |
31
|
Hilgraeve Corp. v. McAfee Assocs., Inc., 70 F. Supp. 2d 738,
735
(E.D. Mich. 1999), affirmed in part, vacated in parr, 224 F.3d 1349
(Fed. Cir. 2000) |
29, 30
|
Kloepfer v. Honda Motor Co., Ltd., 898 F.2d 1452 (10th Cir.
1990) |
26
|
Lee v. National Life Assurance Co. of Canada, 632 F.2d 524
(5th Cir.
1980) |
32
|
Lifewise Master Funding v. Telebank, 374 F.3d 917 (10th Cir.
2004) |
28, 29
|
Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013
(11th Cir.
1987) |
22
|
Sitts v. United States, 811 F.2d 736 (2d Cir. 1987) |
19
|
In re Real Estate Associates Ltd. Partnership Litigation, No.
CV98-7035
(DDP) (AJWX), 2002 WL. 31027557 (C.D. Cal., Aug. 29,
2002) |
18
|
In re Texas E. Transmission Corp. PCB Contamination Insurance
Coverage
Lit., 870 F. Supp. 1293 (E.D. Pa. 1992) |
18
|
United States v. Letscher, 83 F. Supp. 2d 367 (S.D.N.Y.
1999) |
19
|
Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th
Cir.
1991) |
26
|
Weese v. Schukman, 98 F.3d 542 (10th Cir.
1996) |
27
|
iii
West Tennessee Chapter of Associate Builders and Contractors,
Inc. v.
City of Memphis, 219 F.R.D. 587 (W.D. Tenn.
2004) |
27, 28
|
STATE CASES
|
|
People v. Caldwell, 43 P.3d 663 (Colo. App.
2001) |
28
|
FEDERAL STATUTES
|
|
28 U.S.C. §
2201 |
1
|
Fed. R. Civ. P. 56(e) |
22
|
Fed. R. Civ. P. 56(f) |
2
|
Fed. R. Evid. 701 |
25
|
Fed. R. Evid. 702 |
26
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MISCELLANEOUS
|
|
4 Jack B. Weinstein, Weinstein's Evidence § 701.02 (2d
ed.
2004) |
25
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2 James Wm. Moore, Moore's Federal Practice §12.37 (3rd
ed.
2004) |
31
|
iv
Pursuant to Federal Rule of Civil Procedure 56(f) and Federal Rules
of Evidence 602 and 701, Plaintiff and Counterclaim Defendant The SCO
Group, Inc. ("SCO") respectfully submits this Memorandum in opposition
to Defendant/Counterclaim Plaintiff International Business Machines
Corporation's ("IBM") August 23, 2004, Motion To Strike Materials
Submitted By SCO In Opposition To IBM's Cross-Motion For Partial
Summary Judgment ("IBM's Motion to Strike").
SCO's opposition to IBM's Motion to Strike is based on the following
grounds:
PRELIMINARY STATEMENT
SCO filed the Declarations of Chris Sontag, Sandeep Gupta and John
Harrop in support of SCO's Memorandum in Opposition to IBM's
Cross-Motion for Partial Summary Judgment ("IBM's Cross-Motion"). SCO
submitted these declarations for a very narrow purpose: to provide the
Court with Rule 56(f) facts which demonstrate that SCO has not yet had
the discovery it needs to respond to IBM's Cross-Motion on the merits.
Specifically, the declarations present facts which show that:
-
Responding to IBM's Tenth Counterclaim is a task
which could take many man-years to complete without the discovery SCO
requests;
-
IBM refuses to give SCO access to IBM's internal software
configuration
management system and related materials, thereby precluding SCO from
adducing evidence it needs to respond on the merits to IBM's
Cross-Motion efficiently and in a reasonable time;
-
SCO will need to take discovery from third-parties
who have contributed source code to Linux to enable SCO to identify
UNIX source code copied into Linux; and
-
Linux contains copied portions of UNIX source code
which suggests that further discovery will reveal that Linux infringes
SCO's UNIX copyrights
Only seven weeks after IBM amended its Answer on March 29, 2004 to add
a Counterclaim seeking a declaration under 28 U.S.C. § 2201 giving
IBM a "clean bill of health"
1
under the copyright laws for all
of Linux and all of IBM's Linux activities, IBM asked the Court
to enter partial summary judgment in IBM's favor on that same
counterclaim.
At the time that IBM filed its Motion for Partial Summary Judgment,
SCO
and IBM were engaged (and remain engaged) in a discovery dispute over
the IBM-controlled source code and related materials and information
that SCO needs to defend against IBM's counterclaim and which SCO needs
to present its case on SCO's claims. That dispute remains unresolved
and is the subject of pending proceedings before this Court.
SCO had no choice but to invoke Federal Rule of Civil Procedure
56(f)
to oppose IBM's Cross-Motion because IBM refused to produce the source
code and version and change history SCO needs to respond to IBM's Tenth
Counterclaim. SCO also identified the extensive third party discovery
which will be necessary to respond to IBM's Tenth Counterclaim,
including the depositions of as yet unknown third party
contributors to the Linux source code. SCO's Memorandum in Opposition
to IBM's Motion for Partial Summary Judgment describes in detail the
discovery SCO needs, its inability to obtain that discovery from IBM,
how SCO would use that discovery if it had it, and the reasons why SCO
cannot respond to IBM's Motion without that discovery.
At the same time that IBM filed its Reply Brief in Support of its
Cross-Motion for Partial Summary Judgment, IBM also filed a Motion to
Strike Mr. Sontag's and Mr. Gupta's declarations and portions of Mr.
Harrop's declaration. In
moving to strike SCO's declarations, IBM claims they are impermissible
because:
- The Sontag and Gupta declarations are allegedly not based upon
the declarants'
personal knowledge, see IBM's Motion to Strike at 4;
-
The Sontag and Gupta declarations allegedly offer impermissible
lay opinion testimony under Federal Rule of Evidence 701, see
IBM's Motion
to Strike at 6.
2
-
The Sontag and Gupta declarations allegedly offer impermissible
"lay opinion testimony" without the declarants being qualified as
experts under
Federal Rule of Evidence 702, see IBM's Motion to Strike
at 6;
-
The Gupta declaration does not follow the "Gates Rubber"
test
for
showing copyright infringement, even if Mr. Gupta were qualified to
testify as
an expert under Federal Rule of Evidence 702, see IBM's Motion
to Strike at 9; and
-
The Harrop declaration is allegedly either not
based on personal knowledge or is legal argument, see IBM's
Motion to Strike at 5, 12.
IBM's Motion to strike should be denied because, contrary to IBM's
claims, each of the three declarants presented testimony based upon
their personal knowledge, as shown in both their original declarations
and in their
Supplemental Declarations submitted contemporaneously with this
Memorandum. IBM is also wrong to
claim that the witnesses offered impermissible opinion testimony.
However, even if the witnesses
did present opinion testimony, the witnesses' statements are well
within the scope of lay
opinion allowed by Federal Rule of Evidence 701. Although qualified to
render opinions as experts,
none of the three declarants offer testimony that requires expert
qualifications.
Specifically, IBM's Motion to Strike should be denied because:
-
The Declarations are based on the declarants'
personal knowledge, including their review of' portions of the UNIX and
Linux source codes and other documents in this case;
-
To the extent that the declarants' testimony can be construed as
opinion, it is admissible lay opinion not based on scientific,
technical, or other
specialized information;
-
The seventy-two paragraphs at issue in Mr. Harrop's
declaration should not be struck because they are based upon facts
personally known to Mr. Harrop as a
result of his work on this case; and
-
In any event, each of the three declarants could qualify as an
expert
witness.
IBM's Motion to Strike should be seen for what it is: an attempt to
win
by maneuver what it cannot win on the merits. IBM asks this Court to
strike SCO's
evidence which shows
3
what discovery is needed, how it could be used,
and instances in which UNIX source code has been copied into Linux. IBM
has not presented facts or arguments which warrant the drastic remedy
of striking SCO's declarations.
ARGUMENT
- SCO's Declarants Presented Factual Testimony Based
on Their Personal
Knowledge To Demonstrate SCO's Need for Further Discovery Under Rule
56(f)
SCO's three declarants presented factual testimony in the following
areas: 1) the magnitude and nature of the discovery SCO needs to
respond to IBM's Cross-Motion; 2) the existing evidence that portions
of UNIX have been copied into Linux;
and 3) the procedural history of the case, including SCO's inability to
obtain the discovery
it needs, despite repeated efforts to do so. To assist the Court in
understanding what it is that
IBM seeks to strike, SCO provides a summary of the witnesses'
declarations below.
A.
Chris Sontag Presented Facts Showing the Scope
of the Discovery SCO Needs
IBM moves to strike the entirety of Mr. Sontag's
declaration. SCO filed Mr. Sontag's declaration to present facts which
show that SCO is unable to respond
to IBM's Cross-Motion on the merits without further discovery. Mr.
Sontag's declaration provides
factual testimony in the following areas.
1. The Magnitude of the Discovery Task Based on
the Amount of the Source Code
Paragraphs 4-23 of Mr. Sontag's declaration' explain what SCO would
have to do to respond to IBM's Tenth Counterclaim and the magnitude of
the task. Mr. Sontag provides basic, rudimentary facts about the UNIX
and Linux operating systems. He also shows why automated code
comparisons will
not detect all possible cases
of copying and why a manual, line-by-line
4
comparison could not be done
in a reasonable and
timely manner. For example, Mr. Sontag testified:
-
"A kernel is the core portion of the operating system. The
kernel performs the most essential operating system tasks, such as
handling
disk input and output operations and managing the internal memory."
Sontag Declaration
at ¶6.
-
"The operating system kernel is a lengthy, complex computer
program comprising numerous modules and files, and millions of lines of
code.
The Linux kernel (ver. 2.4) comprises 4 million lines of code and the
UNIX SVR
4.2 MP kernel comprises 3.4 million lines of code." Sontag Declaration
at ¶7.
-
"The 4 million lines of Linux kernel code takes up 66,000 pages;
the 3.4 million lines of UNIX code takes up 58,000 pages. A simplistic
manual comparison would involve placing the pages of code side by side
in some ordered
manner and then looking for the same or similar structure, sequence and
organization of the code. Assuming each page comparison takes one (1)
minute, and that
there are 66,000 x 58,000 comparisons, `this initial' review could take
on the
order of 25,000 man-years." Sontag Declaration at ¶14.
2. The Tools SCO Could Use to Show Copyright Infringement
Paragraphs 24-42 of Mr. Sontag's declaration explain alternative
ways in which SCO could search for infringing Linux code. Mr. Sontag
explains how SCO could use IBM's Configuration Management and Version
Control ("CMVC") tool to identify programmers who worked on the code.
These programmers
might be deposed to find other programmers and the reasons why certain
code was copied
or modified. Mr. Sontag also explains how SCO may not be able to
directly determine
if Linux source code was derived from UNIX source code without some
history of IBM's
AIX code development. For example, Mr. Sontag testified:
-
"Another way for SCO to obtain all of the reasonably available
and necessary evidence to support its claims and to oppose IBM's Tenth
Counterclaim is to access the numerous IBM and Sequent engineers and
programmers who
have, over the years, developed AIX and Dynix code, contributed AIX and
Dynix code
to Linux, or assisted others in contributing to Linux. These engineers
have access to and have studied UNIX based operating systems that have
been
enterprise hardened and made multiprocessor capable." Sontag
Declaration at ¶24.
-
"[A] revision control system (RCS) - implemented by IBM as the
Configuration Management/Version Control (CMVC) is an excellent source
for finding the
5
programmers and engineers familiar with relevant UNIX
based code that has been contributed by IBM and third parties to make
Linux enterprise hardened and multiprocessor capable. Deposing these
programmers and engineers will allow SCO to prioritize its efforts to
find Linux code that is substantially similar to UNIX code." Sontag
Declaration at ¶26.
-
"Software developers rely on version control systems (VCSs), or
version management systems (VMSs), to control changes and revisions to
source code. Version control systems are automated tools that provide
specific
access and tracking features to allow multiple parties to operate on
and revise source code. For example, a "Checkout" feature allows a user
to retrieve, from a source code repository, a section of source code
for which some changes are intended. A "Checkin" feature deposits the
changed source code in a source code repository. Version control
systems also provide an approval process, and many other features. In
short, version controls systems are software tools that provide
detailed software change histories." Sontag Declaration at ¶31.
3. The Discovery SCO Needs and Can Use to Respond to IBM's
Tenth Counterclaim
Paragraphs 43-60 of Mr. Sontag's declaration describe the materials
that SCO would need to defend against IBM's Tenth Counterclaim. Mr.
Sontag explains how SCO could use source code and log information to
rebut IBM's
allegations that SCO cannot prove copying. Mr. Sontag also explained
how other development
records can be used to track the history of a source code's
development. For example, Mr.
Sontag testified:
-
"White papers are usually generated early in the software code
development process, and often discuss reasons for implementing code
changes, problems with
existing code, and alternative solutions. Thus, white papers serve as
an early
indication of possible code changes. By setting forth solutions, white
papers can be
used to look for specific code segments in Linux and thus help SCO
prioritize its
search." Sontag Declaration at ¶51.
-
"Design documents are often prepared by the group that
ultimately
authors the changes to the code sequences. Design documents are
generally more
detailed that white papers. For example, SCO proprietary design
document "Virtual
Memory Design for UNIX System V Release 4.2 Multiprocessor," contains
almost
150 pages of detailed description and code requirements to implement
virtual
memory in a UNIX-based processor. The design document is directed to
such
implementation on a specific processor family, namely the Sequent
Symmetry Model S16.
This and other design documents explain the initial code concepts, and
how such
code will be developed and written. As such, design documents provide
an invaluable
bridge between existing code sequences, such as in UNIX, and derivative
works,
such as in
6
AIX and Dynix. Because these design documents describe the
basis for code development, they may be useful for pointing to a
portion of Linux that contains code substantially similar to UNIX
code." Sontag Declaration at ¶52.
- "[P]rogramming notes contain the thought processes of individual
programmers as they write and revise code sequences. For example,
programming notes might list changes made to code, and might list
additional changes to consider. As such, programming notes provide
detailed rationale for code changes and an indication of how the code
may change in the future. Programming notes may reflect the purpose for
code changes and where in the kernel those changes occur. Thus
programming notes are another source SCO can use to streamline its
efforts to locate Linux code that is substantially similar to UNIX
code." Sontag Declaration at ¶53.
B. Sandeep Gupta Presented Facts Showing that Linux
Contains Source Code Copied from UNIX
IBM also moves to strike the entirety of Mr. Gupta's
declaration. SCO submitted Mr. Gupta's declaration to show that what
little discovery SCO has obtained
to date demonstrates that portions of SCO's UNIX source code appear in
Linux. Mr. Gupta
provides specific examples of SCO UNIX source code which can be found
in Linux. Mr. Gupta
does not discuss whether any of the Linux code he observed infringes
any of SCO's
copyrights. Mr. Gupta's declaration provided factual testimony in the
following areas.
1. The UNIX Read-Copy-Update ("RCU") Routines Can be
Found in Linux
Paragraphs 5-23 of Mr. Gupta's declaration explain what the
Read-Copy-Update ("RCU") routine is and present facts which show that
the source code implementing the RCU routine can be found in both UNIX
and Linux. For example, Mr. Gupta
testified:
-
"RCU (Read-Copy-Update) is one of the methods used to
synchronize
access to shared data in a multiprocessing environment." Gupta
Declaration at ¶7.
-
"Each of the five acts of the UNIX RCU -- and of the Linux RCU
--
routine is expressed in one or a few lines of code." Gupta Declaration
at ¶15.
-
"The first act, 'allocating a new data structure of a certain
size,' is
expressed in UNIX RCU and Linux RCU by a single line of nearly
identical code. From a
software programmer's perspective, the UNIX RCU expression of the act
of
allocating a new data structure has been identically copied into Linux
RCU. As can be
seen in
7
attached Exhibit A, the Linux RCU code (column 4) for the first
act is nearly identical to the UNIX RCU code: (column 1) for the first
act." Gupta Declaration at ¶16.
-
"In Linux RCU, in contrast, the fifth act of deferred deletion
is achieved by a callback function that is automatically called when no
current users remain so that the old data structure may be deleted."
Gupta Declaration at ¶21.
2. Sequent Employees Had Access to UNIX RCU and Could
Have Copied that Into Dynix, Which was Released into Linux
Paragraphs 25-29 of Mr. Gupta's declaration explain that Sequent
employees who had worked on Dynix RCU had worked on UNIX RCU when they
worked under the Multiprocessor Software Agreement and had access to
the UNIX RCU to
copy it into the Dynix RCU. Mr. Gupta presented these facts to support
SCO's argument
that UNIX source code was placed into Linux via such intermediate
products as Dynix. Mr.
Gupta also presented facts which show that an IBM employee (and former
Sequent employee)
used the Dynix version of RCU to create a patch for Linux RCU which was
incorporated into Linux.
For example, Mr.
Gupta testified:
-
"Jack Slingwine and Paul McKenney are the credited authors of
Dynix
RCU, and were both Sequent employees. At least Mr. Slingwine was
involved in the
UNIX development work under the MP Agreement. At least Mr. Slingwine
had
access to the UNIX RCU work because of his involvement in the UNIX
development
work. I believe that Mr. Slingwine would have used that access to UNIX
development to review UNIX RCU because of his clear interest in RCU.
Regarding his
clear interest in RCU, Mr. Slingwine and Mr. McKenney authored a paper
on RCU,
'Read-Copy Update : Using Execution History To Solve Concurrency
Problems,' which
refers to `work performed at Sequent.' See Exhibit C. In this
paper, Mr.
Slingwine and Mr. McKenney thank (among others) Brent Kingsbury, and
Mr. Kingsbury was
one of the authors of a design document for UNIX which discusses, among
other
things, UNIX RCU." Gupta Declaration at ¶25.
-
"[A]t least Mr. Slingwine (and perhaps Mr. McKenney) had access
to UNIX
developments during the USL/Sequent collaboration under the MP
Agreement, which included development of UNIX RCU, and both showed
great interest in RCU
by filing a patent application (as co-inventors) relating to RCU
immediately after the MP Agreement collaboration." Gupta Declaration at
¶27.
-
"IBM thereafter released Dynix, with a copied and modified UNIX
RCU in
Dynix, into Linux. More specifically, the Dynix version of RCU was used
by IBM
employee (and former Sequent employee) Dipankar Sarma to create a
software patch
for placing a substantially similar version of RCU into
Linux. I believe that the first
8
patch appears to be for Linux version
2.4.1 and was contributed
by Mr. Sarma. See Exhibit E. A paper entitled 'Read-Copy
Update' also lists Mr. Sarma
along with Mr. McKenney and others as authors. See Exhibit F.
Another patch was also
provided to Linux version 2.5.44 by IBM employee Mingming Cao. See
Exhibit G. This
patch appears to be incorporated into the Linux version 2.6." Gupta
Declaration at ¶29.
3. The User Level Synchronization Routines and Inter Process
Communication Source Code and Header Files of UNIX and Linux are
Substantially Similar
Paragraphs 30-49 of Mr. Gupta's declaration explain the bases for
his
belief that the User Level Synchronization ("ULS") routines in Linux
version 2.6 are substantially similar to those in UNIX SVR4.2
MP. In
these paragraphs, Mr. Gupta
explains the purpose and function of ULS and the facts he has observed
which led him to conclude that the two
routines were substantially similar. Paragraphs 50-62 of Mr. Gupta's
declaration explain how the
Linux System V Inter-Process Communications ("IPC") source code and
associated header files
are substantially similar to those in UNIX System V IPC source code.
Mr. Gupta provides
tables which give a side-by-side comparison of the relevant UNIX and
Linux source code. For
example, Mr. Gupta testified:
-
"The ULS routines in Linux are commonly referred to as FUTEX
(Fast User
Mutex), but will be called Linux ULS here." Gupta Declaration at
¶31.
-
"The main purpose of the ULS routines is to facilitate
inter-process
synchronization by blocking and unblocking processes attempting to
access shared data."
Gupta Declaration at ¶33.
-
"IPC stands for Inter-Process Communication. UNIX System V IPC
is used
to communicate and synchronize between operating system processes on
the
same machine in a multiprocessing environment." Gupta Declaration at
¶51.
-
"With regard to the organization of Linux SysVIPC and UNIX
System V
IPC, both consist of three mechanisms: message queues, semaphore, and
shared
memory. There is no reason for the organization to be identical other
than the
fact that Linux SysVIPC has been copied from UNIX System V IPC." Gupta
Declaration at ¶53.
9
4. Linux has Copies of UNIX Interface and
Header and Init and Executable Linking Format ("ELF") Code
Paragraphs 63-72 of Mr. Gupta's declaration explain that a copy of
the
UNIX System V IPC header code appears in Linux. Mr. Gupta explains the
purpose and
function of a header file and the facts he has observed which led him
to conclude that the two
routines were substantially similar. Paragraphs 73-76 of Mr. Gupta's
declaration explain how Linux
version 2.6 contains an identical copy of the UNIX System V init code.
Mr. Gupta explains the
function and purpose of the init code and the facts he observed which
showed him that the init
code had been copied into Linux. Paragraphs 77-86 of Mr. Gupta's
declaration provided facts which
show that an identical or substantially similar copy of the UNIX ELF
code can be found in
Linux. Mr. Gupta provides tables which give a side-by-side comparison
of the relevant UNIX and
Linux source code. For example, Mr. Gupta testified:
-
"UNIX header and interface source code is available in
SCO-copyrighted documentation, such as manual pages. These manual pages
are published
on the
Internet with copyright notices. Also, UNIX header and interface code
is available to any entity having a license to UNIX, or who can
otherwise access the
UNIX code." Gupta Declaration at ¶64.
-
"A header file is a programming source file containing
declarations of
interfaces that facilitate communication between different regular
source files that
comprise the program." Gupta Declaration at ¶65.
-
"SYS V init was accessible for copying because the manual pages
defining SYS V init features, for example init and inittab, are
published as
electronic documents and are available to anyone with an Internet
browser. These manual pages,
however, carry appropriate copyright notices. Using the manual pages, a
skilled
programmer could copy the structure, sequence, and organization of SYS
V init
routines. SYS V init and inittab were included in documentation with
each release of
UNIX System V as manual pages init(1M) and inittab(4), respectively. See
Exhibits Z
and AA. Also, SYS V init code is available to any entity having a
license to UNIX, or
who can otherwise access the UNIX code." Gupta Declaration at ¶74.
10
C. John Harrop Presented Facts Showing the
Procedural Posture of the Case and SCO's Unsuccessful Attempts to
Secure Needed Discovery From IBM
IBM asks this Court to strike seventy-two separate paragraphs of Mr.
Harrop's Declaration. SCO filed Mr. Harrop's declaration to show facts
which
establish the nature and amount of discovery that SCO needs, its timely
efforts to obtain that
discovery, and IBM's refusal to provide essential documents. In
addition, Mr. Harrop
presents facts regarding the procedural history of this case which show
that IBM's Tenth
Counterclaim was only recently filed and broadened considerably the
nature and amount of discovery
that SCO must now obtain. Mr. Harrop further presents facts which
demonstrate the breadth and
difficulty of the discovery SCO now needs. Mr. Harrop's declaration
provides factual testimony in
the following areas.
1. Facts Giving Rise to the Case and the Procedural
History of the Dispute
Paragraphs 4-13 describe the background of the license agreements
which give rise to SCO's claim against IBM. Paragraphs 14-23 and 76-90
give
facts concerning the procedural posture of the case, how IBM's Tenth
Counterclaim raises issues broader
than those raised by SCO's claims against IBM, and the history of IBM's
refusal to provide SCO with its needed discovery. For example, Mr.
Harrop testified:
-
"SCO has not brought any claim that IBM contributed source code
to
Linux in violation of any SCO copyright. SCO has not asserted here any
claim
that any third party has contributed any source code to Linux in
violation of any SCO
copyright. SCO has not brought any copyright claim against IBM in this
action in
regard to any of IBM's numerous activities relating to Linux." Harrop
Declaration at ¶9.
-
"The inappropriateness of IBM's Tenth Counterclaim and the fact
that
SCO's Motion to Dismiss or Stay the Tenth Counterclaim is still pending
support
SCO's opposition to IBM's Motion." Harrop Declaration at ¶17.
-
"In light of the procedural posture of this case, the parties
reasonably have not taken discovery on IBM's Tenth Counterclaim . . . .
What is more, to date SCO
has been unable to obtain discovery relevant to its own, long-standing
claims in
this case. Such discovery would permit SCO to take further discovery,
significant
portions of which would bear on IBM's Tenth Counterclaim." Harrop
Declaration at ¶76
11
2. The Impact of IBM's Tenth Counterclaim on
the
Discovery SCO Needs
Paragraphs 24-40, 69-75, and 91-95 of Mr. Harrop's declaration state
facts which demonstrate how IBM's Tenth Counterclaim substantially
broadened the
scope of discovery; the nature of the discovery SCO needs and how that
discovery is broadened
by the public, open-source nature of Linux; the nature of evidence that
SCO needs to
examine besides source code; and the limitations of searching source
code for proof of IBM's
copyright infringement. For example, Mr. Harrop testified:
-
"To justify opposition to IBM's Cross Motion -- that is, to
contend
that IBM is not entitled to a declaration of non-infringement with
respect to all of
its activities relating to Linux -- SCO must first be able to identify
all of IBM's
activities relating to Linux. Assuming a scenario in which IBM will
argue for an
entitlement to a declaration of non-infringement with respect to as
many activities
relating to Linux as possible. SCO must have discovery to identify
IBM's activities relating
to Linux as a threshold matter." Harrop Declaration at ¶29.
-
"In an article dated March 3, 2004, for example, the person
regarded as
the developer of Linux, Mr. Torvalds, grudgingly acknowledged with
respect to the
issue of whether Linux infringes on SCO's copyrights: 'The only thing
that makes
any ounce of sense is their claims about somebody using (Unix) System V
libraries.' (Exh. 64.)." Harrop Declaration at ¶70.
-
"In an article dated November 29, 2003, 'Linux kernel
maintainer'
Andrew Morton commented as follows on this litigation, specifically in
reference to 'the XFS and JFS file systems, which were originally
developed under a Unix license and
then ported over to Linux': "'SGI did develop it. It could be [SCO] has
a
legitimate case there, not technically, but on the letter of the law."'
(Exh. 56.)." Harrop
Declaration at ¶71.
3. Depositions of Contributors are Needed to
Determine the Origins of the Linux Source Code
Paragraphs 41-58 of Mr. Harrop's declaration present facts which
demonstrate that it is difficult to know who made what contributions to
Linux and that SCO needs to depose those individuals who did contribute
to Linux to determine the original
sources for the Linux source code. For example, Mr. Harrop testified:
12
-
"SCO has not had the opportunity to depose any of the
contributors
of any source code into any version of Linux -- much less the major
contributors of
source code -- and therefore has not had any opportunity to discover
admissions highly
relevant to IBM's Tenth Counterclaim. Harrop Declaration at ¶47.
-
"SCO also needs to depose programmers who work for these
companies and
made the contributions to determine the sources of those programmers'
code
contributions. Such programmer depositions should enable SCO to
streamline and
prioritize and make its investigation of substantially similar copying
from UNIX to
Linux more efficient. A streamlined and prioritized investigation of
substantially
similar copying will not be nearly as time-consuming as a systematic
line-by-line
comparison would be. The programmers might say, for example, that in
some areas of Linux
development they relied on UNIX to a great extent and in other areas
they did not. Such testimony would enable SCO to focus on those areas
the programmers
identified as relying on UNIX. Furthermore, this discovery will show
why the
contributions were made and what features the contributions relate to,
and will allow
SCO to trace back from the Linux code to UNIX." Harrop Declaration at
¶50.
-
"IBM has produced only later versions of AIX. IBM has not yet
produced
the earlier versions of AIX (or of Dynix, ptx, and Dynix/ptx). On that
basis alone,
SCO therefore has been significantly hampered in its ability to
discover
relevant facts essential to oppose IBM's Cross-Motion." Harrop
Declaration at ¶62.
II. SCO's Declarants Presented Proper Declarations
and IBM's Motion to Strike Should be Denied
As shown below, the declarants' testimony was based on their
personal knowledge and describes facts which they observed during their
education, their careers or the conduct of this case as set forth in
the Supplemental
Declarations filed contemporaneously with this Memorandum.
A. SCO's Declarants Presented Testimony Based Upon Their Personal
Knowledge
IBM's claims that the Sontag, Gupta, and Harrop declarations are not
based upon their personal knowledge are baseless, see IBM's Motion to
Strike at 3.1
As both the original and
13
supplemental declarations show, the Sontag,
Gupta, and Harrop declarations are based on personal knowledge.
1. Mr. Sontag's Declaration was Based on His Personal
Knowledge Developed During His Education, Career and Participation in
this Case
First, Mr. Sontag stated in the first paragraph of his declaration that
"[u]nless otherwise noted or evident from their context, this
declaration is based on my
personal knowledge and information available to me from reliable
sources." Sontag Declaration
at ¶1, Gupta Declaration at ¶1, and Harrop Declaration at
¶1 .
As made clear in his Supplemental Declaration, Mr. Sontag presented
factual testimony based on his personal knowledge. Mr. Sontag's
declaration covers three
principal areas: 1) the magnitude of the discovery task based on the
amount of source code; 2)
the tools SCO could use to show copyright infringement; and 3) the
discovery SCO needs and can
use to respond to IBM's Tenth Counterclaim. The facts included within
each of these
topics are well within Mr. Sontag's personal knowledge, as confirmed by
his Supplemental
Declaration.
A summary of the experience that Mr. Sontag drew upon for his
declaration shows that the facts presented in his declaration are well
within the scope of his
personal knowledge:
-
Sixteen years of experience, including four
years
as the Chief Technical Officer ("CTO") of a company that he co-founded.
See Sontag Supplemental
Declaration at ¶9.
-
Bachelor's Degree in Information Management from Brigham Young
University including courses in data program management, software
engineering, and
computer systems analysis. See Sontag Supplemental Declaration
at
¶5.
-
Responsibility for managing the development and
release of a major software product, Netware 4.0, while employed by
Novell, Inc., a major software
company. See Sontag Supplemental Declaration at ¶7.
As an experienced software developer and software program
manager, Mr.
Sontag has personal knowledge of many areas of software design,
development, and
operation, including:
14
the function and contents of computer operating
systems (including their kernels); computer programming; and source
code analysis. See Sontag Supplemental
Declaration at ¶¶14-15; 22. From his experience at SCO and
other companies, and his own knowledge
of the field, Mr. Sontag is familiar with various operating systems
such as UNIX (which
he has worked with for over four years) and Linux. See Sontag
Supplemental Declaration at ¶14.
From that experience, Mr. Sontag has personal knowledge of both the
UNIX and Linux operating
systems. Mr. Sontag applied that experience and knowledge to his
examination of the source
code and other documents in this case.
Mr. Sontag has used and supervised the use of software
configuration
management and control systems. See Sontag Supplemental
Declaration at
¶¶8, 12. His
knowledge of IBM's particular tool, CMVC, is based upon information he
read in IBM
documents describing CMVC. See Sontag Supplemental Declaration
at ¶12.
Mr. Sontag's experience as
a software developer and manager has also given him experience in the
nature and uses of
software development
white papers, design documents, and programming notes. See
Sontag
Supplemental Declaration at ¶27. Mr. Sontag's experience also gave
him personal knowledge
concerning the use of software comparison tools and methods. See
Sontag
Supplemental
Declaration at ¶¶18-19. His past work also gives him personal
knowledge of the kinds of information
that can be learned from software programmers and engineers. See
Sontag
Supplemental
Declaration at ¶27.
Indeed, Mr. Sontag has first-hand knowledge of the obstacles SCO
has
faced and continues to face in identifying substantial similarities
between UNIX
code and Linux code. See Sontag Supplemental Declaration at
¶¶19-22; 26. Mr. Sontag also has
personal knowledge of the ways in which the code comparison can be
streamlined through further
discovery of IBM materials. See Sontag Supplemental Declaration
at
¶21. The facts that
Mr. Sontag presents are
15
based directly upon his review of the code
comparison process undertaken by SCO and on his industry experience.
See Sontag Supplemental Declaration at ¶¶21-22.
2. Mr. Gupta's Declaration was Based on His
Personal
Knowledge Developed During His Education, Career and Participation in
this Case
Mr. Gupta's declaration begins with a statement that his declaration is
based upon personal knowledge. See Gupta Declaration at
¶1. Mr.
Gupta's
declaration covers five principal areas: 1) The UNIX Read-Copy-Update
("RCU") routines which can be found
in Linux. 2) the UNIX Inter-Process Communications ("IPC") Code was
copied into Linux;
3) Sequent employees had access to UNIX RCU and could have copied that
into Dynix,
which was released into Linux; 4) the User Level Synchronization
routines of UNIX and
Linux are substantially similar; and 5) the UNIX Inter-Process
Communications ("IPC") code was
copied into Linux.
The facts included within each of these topics are well within Mr.
Sontag's personal knowledge, as shown by his Supplemental Declaration.
Mr. Gupta's declaration is based on his personal knowledge developed
during his education, career, and participation in this case. Mr. Gupta
graduated
with a Bachelor of Science degree in Computer Engineering from Delhi
College of Engineering, in
Delhi, India in 1993. See Gupta Supplemental Declaration at
¶7.
His course work included Computer
System Architecture, Network and Communications, Compiler Design,
Operating
Systems, Microprocessors, Analog Circuits, Computer Software
Engineering,
Databases and Programming, Parallel Processors, and Design of UNIX
Operating Systems.
See Gupta Supplemental Declaration at ¶7. Upon graduation,
he was
employed for a
year by Fujitsu in India as a computer systems engineer. See
Gupta
Declaration at ¶8. From
1994 to 1996, he was
employed by ICL in the United Kingdom as a Senior Systems Engineer
working on UNIX System V technology. See Gupta Declaration at
¶9.
He has worked for SCO
since 1996. He has
16
been Lead Engineer for the UnixWare Escalations and
Research Division, Senior Manager of Operating Systems Engineering, and
is currently Vice-President of Engineering for the SCO Engineering
Division. See Gupta Declaration at ¶¶10-14.
His responsibilities at SCO have included numerous projects on
Unixware 7, including assisting IBM in their DB2 and SNA Gateway ports
to UnixWare 7, and developing modules to detect kernel memory leaks and
corruptions. See Gupta Declaration at ¶¶11-12. More
recently, his SCO responsibilities have included being lead engineer on
the development of Unixware 7.1.2 and Unixware 7.1.3 releases, and lead
engineer on the support and development of SCO's Linux product line. See
Gupta Supplemental Declaration at ¶13.
As Vice-President of SCO Engineering, his responsibilities include
all UNIX System V technology and engineering, as well as like
responsibilities for other SCO products such as OpenServer and
OffiServer. See Gupta Declaration at ¶14.
Mr. Gupta
examined UNIX and Linux source code. See Gupta Supplemental
Declaration at ¶18. In addition, Mr. Gupta has worked with the
UNIX System V or related code for eleven years. See Gupta
Supplemental Declaration at ¶15.
Mr. Gupta analyzed both the UNIX System V source code and portions
of Linux source code. In examining those source codes, Mr. Gupta
identified and examined several instances in which Linux contained
source code that appears to have been copied from UNIX into Linux. See
Supplemental Gupta Declaration at ¶18. SCO presented Mr. Gupta's
declaration to show the Court that, given adequate opportunity for
discovery, SCO is likely to find evidence that raises genuine issues of
material fact that would preclude granting of summary judgment.
17
3. Mr. Harrop's Declaration was Based on His
Personal Knowledge and Participation in this Case
Mr. Harrop's declaration begins with the acknowledgment that his
declaration is based on his personal knowledge. See Harrop Declaration
at ¶1. Mr. Harrop's declaration covers three principal areas: 1)
facts giving rise to the case and the procedural
history of the dispute; 2) the impact of IBM's Tenth Counterclaim on
the discovery SCO needs; and 3)
the need for depositions of contributors to determine the origins of
the Linux
source code. See Harrop Declaration at ¶1. Mr. Harrop's
declaration was based on his personal
knowledge developed during this case, including review of pleadings,
discovery filings and
public articles quoted or
referred to in his July 9, 2004 Declaration. See Harrop
Supplemental
Declaration at ¶7.
4. IBM's Grounds for Striking Seventy-Two Paragraphs
of the Harrop Declaration are Baseless
IBM identifies a number of paragraphs in Mr. Harrop's declaration
for
which it claims Mr. Harrop has no personal knowledge. See IBM's
Motion to Strike at 5.
However, Mr. Harrop is familiar with documents in this case. See
Harrop Supplemental
Declaration at ¶7.
Review of such documents is a proper basis for personal knowledge. See
In re Real Estate Assocs. Ltd. P'ship Litig., No. CV98-7035 (DDP)
(AJWX), 2002 WL
31027557, *1 (C.D. Cal., Aug. 29, 2002) (declarations by counsel based
on the attorney's
analysis of the discovery documents and pleadings in the case are
admissible in support of
summary judgment motion). A witness' personal knowledge can be based on
documents the witness
reviews. See, e.g., In re Texas E. Transmission Corp. PCB
Contamination Ins. Coverage Lit., 870
F.Supp. 1293, 1304 (E.D. Pa. 1992), aff'd, 995 F.2d 219 (3rd
Cir. 1993) (employee's
personal knowledge concerning past corporate practices concerning PCB
use and containment could be
based on review of corporate documents and employee's affidavit could
be submitted in
support of summary judgment).
18
"It is a common and proper use of an
attorney affidavit" to
"put ... documents before the Court ... on summary judgment motions as
enclosures to counsel's
affidavit . . and to set forth the procedural history of the case." United
States v. Letscher, 83
F.Supp. 2d 367, 381 (S.D.N.Y. 1999); see also Sitts v. United
States, 811 F.2d 736 (2d Cir. 1987). In
Letscher, the United States submitted the affidavit of one of
its attorneys setting forth the
procedural history of the case and attaching verified Certificates of
Assessments and Payments as well as
court documents related
to the case. See id. at 369, 373. The defendant moved to strike
the
affidavit, arguing that the attorney lacked personal knowledge of the
facts in the case. The court
overruled the defendant's objection, noting the propriety of using an
attorney affidavit to put
documents before the court and to present facts concerning the
procedural history of the case.
In Sitts, the United States moved for summary judgment and
included the
attorney's affidavit. The plaintiff moved to strike the affidavit for
lack of
personal knowledge. The court denied the motion to strike, concluding
that although the attorney
could not testify regarding the historical facts leading to the
lawsuit, the attorney could present an
affidavit when "the material fact [at issue] was a procedural fact that
was within the personal
knowledge of the attorney, supported by the pretrial discovery
materials of ... the case." Id. at
742.
SCO is opposing IBM's Cross-Motion on the ground that SCO has not
yet
had essential discovery with which to oppose IBM's Cross-Motion. One of
the facts
relevant to SCO's Rule 56(f) submission is the degree to which IBM has
resisted providing
discovery and the motions to compel SCO has filed in an attempt to
obtain it. Mr.
Harrop has personal knowledge of that history. See Harrop
Declaration
at ¶¶5, 8. As such, the procedural
history of the case is material to the Cross-Motion before the Court
and Mr. Harrop presents admissible
evidence based on his personal knowledge regarding those facts.
19
However, ¶41 discusses one of the means by which SCO might gain
the
information it needs to defeat IBM's Tenth Counterclaim, and the fact
that there is no
road map that would allow SCO to trace the migration of UNIX code into
Linux. Mr. Harrop
has personal knowledge of the fact that SCO could gather the
information it needs by taking
discovery of those who contributed source code to Linux. Mr. Harrop's
involvement in the case
also gives him personal knowledge of the absence of a "road map" that
SCO can use. See Harrop
Supplemental Declaration at ¶¶8, 10.
IBM has no basis for its claim that Mr. Harrop lacks personal
knowledge
of SCO's positions in this case. See IBM's Motion to Strike at
5 (citing Harrop
Declaration at ¶7, discussing SCO's positions in the case).
Other Harrop paragraphs that IBM objects to recite facts about which
Mr. Harrop is knowledgeable through personal information, e.g., SCO has
been unable
to take the discovery necessary to fully respond to IBM's Motion for
Partial Summary
Judgment. See Harrop Declaration at ¶43 (no existing list
of all Linux contributors); ¶47
(SCO has not yet had any opportunity to depose any Linux contributors);
¶51 (SCO has identified
some authors of various portions of Linux code from the Linux change
log); ¶¶59-61 (SCO could
streamline discovery by having access to certain information regarding
AIX, Dynix and Dynix.ptx
source code and software configuration management systems);
¶¶63-65 (design information
needed); ¶¶69-72 (articles containing statements by Linus
Torvalds and Andrew Morton
discussing whether Linux infringes SCO's copyrights); ¶84 (SCO's
review of AIX files does not
identify precise contribution to source code of individuals); and
¶¶91-95 (summarizing
difficulties associated with comparing source code and efforts SCO has
been unable to undertake
notwithstanding the difficulties).
20
IBM also faults Mr. Harrop's
declaration for setting forth background facts about the development of
Linux. See IBM's Motion to Strike at 5. It is unclear
why IBM chose to object to Mr. Harrop's inclusion of background facts
which he learned during
the course of this case. Such facts are often included in summary
judgment briefing and attorney
argument to provide the Court with some context and are rarely objected
to.See Harrop
Supplemental Declaration at ¶14 (stating that he provided facts to
give the Court some background
and context). While such use admittedly does not strictly conform to
the letter of the Federal
Rules of Evidence, it is a practice frequently used in connection with
background information.
In fact, the two paragraphs IBM found to be particularly
"egregious,"
see id. at 5 n.1, regarding the origins of the Linux operating
system in paragraphs 33
and 34 of Mr. Harrop's declaration, are virtually identical to
statements IBM included in its
opening brief in support of partial summary judgment.2 IBM -
in attorney argument - told the Court
"[t]he development of Linux began when an undergraduate student at the
University of
Helsinki, by the name of Linus Torvalds, set out to create a new, free
operating system." IBM's
Cross-Motion at 8. IBM then states that "[w]ith the Internet providing
for a distributed
collaboration, other programmers joined to create code making up the
kernel." Id.
21
IBM also claims that a number of exhibits cited in SCO's brief in
opposition to IBM's Cross-Motion and in Mr. Harrop's declaration are
inadmissible. Among
those documents that IBM seeks to strike are various newspaper
articles. See IBM's Motion to
Strike at 14. According to IBM, the materials should be struck because
they constitute
inadmissible hearsay. See IBM's Motion to Strike at 15. The
articles
should not be struck because they
contain facts which show that IBM's Cross-Motion should not be granted
and because they contain
facts which SCO can adduce at trial through admissible evidence.
It is well-established that a party opposing summary judgment must
"set
forth such facts as would be admissible in evidence." See
Fed. R. Civ.
P. 56(e)
(emphasis added). However, the facts need not be submitted in
admissible form at this stage of the
proceedings. "[T]he nonmoving party [need not] produce evidence
in a
form that would be
admissible at trial in order to avoid summary judgment." Celotex
Corp.
v. Catrett, 477 U.S. 317, 324
(1986) (emphasis added). This is because the argument that the
nonmoving party's
evidence constitutes "inadmissible hearsay does not undercut the
existence of any material
facts the [evidence] may
put into question." Offshore Aviation v. Transcon Lines, Inc.,
831 F.2d
1013, 1015 (11th Cir. 1987) (holding that hearsay letter should have
been considered by trial
court in opposition to summary judgment because letter put material
facts into question). 3
22
B. SCO's Witnesses Do Not Present "Opinion"
Testimony Within the Scope of Rule 702
1. The Declarants Present Facts -- Not Opinions --
in Their Testimony
IBM also seeks to strike Mr. Sontag's declaration because, according
to IBM, it is opinion testimony requiring scientific, technical, or
other specialized knowledge under Federal Rule of Evidence
702. See IBM's Motion to Strike at
5. IBM provides only three specific examples of
so-called opinion testimony. None of these actually constitute
"opinions" and, even if they did, they certainly would not require
expert qualification
under Rule 702, as IBM argues. Specifically IBM claims the following
statements are inadmissible
opinion testimony:
-
In this declaration, I explain why I believe that "several
routines
and
several groupings of code for which SCO has copyright protection were
copied
into the
Linux operating system." Gupta Declaration at ¶3.
-
"Attempting to use an automated process to perform a complete
comparison of all of the source code in UNIX and Linux computer
operating systems is not
feasible." Sontag Declaration at ¶10.
-
"This 'initial" review could take on the order of 25,000
man-years.'"
Sontag Declaration at ¶14.
See IBM's Motion to Strike at 5.
First, IBM does not explain what is about these three statements
that
make them "opinion" testimony, rather than fact testimony. Second, each
statement
is clearly a factual one within the personal knowledge of that
declarant. In the first instance,
Mr. Gupta is merely stating that his declaration will describe facts
which led him to conclude that
several routines for which SCO has copyright protection were copied
into the Linux operating system.
Similarly, the second statement, made by Mr. Sontag, is also a
factual
statement based on Mr. Sontag's personal knowledge. Mr. Sontag has
first-hand knowledge
that it is not feasible to use an automated process to perform a
complete comparison of all of the
source code in UNIX and Linux computer operating systems. This
statement is drawn from Mr.
Sontag's participation
23
in efforts to use automated tools to compare
UNIX and Linux. See Sontag
Supplemental Declaration at ¶¶ 15; 19-20.
The third so-called "opinion" is a mathematical calculation based
upon
Mr. Sontag's knowledge of the amount of information that would need to
be analyzed
and how long it would take if one just assumed it took a fixed amount
of time to review each
page. It is a simple arithmetic calculation that requires no
specialized scientific skill.
To add weight (but not substance) to its arguments, IBM states that
Mr.
Sontag also impermissibly "opines" about the topics below:
-
Operating systems, computer programming, and electronic
discovery,
including methods for performing code analyses;
-
The function and composition of an operating system
kernel;
-
The structure, size, and contents of the UNIX,
Linux, AIX, Dynix, ptx, and Dynix/ptx operating systems;
-
Software revision control systems, including one known as
Configuration Management Version Control ("CMVC") that is proprietary
to IBM;
-
Software development generally; "bug" fixing and
tracking;
-
The nature and uses of software development white
papers, design documents, and programming notes; and
-
Linux development process.
See IBM's Motion to Strike at 8. However, IBM does not state what
it
considers to be objectionable about these paragraphs of Mr. Sontag's
declaration,
including which portion constitutes opinion (and why it constitutes
opinion) and which portion
is based on facts.
The absurdity of IBM's position, however, is made clear by IBM's
claim
that Mr. Sontag's statement about operating system kernels is "opinion"
testimony under Federal Rule of Evidence 702. Mr. Sontag stated that:
24
A kernel is
the core portion of the operating system. The kernel
performs the most essential operating system tasks, such as handling
disk input and
output operations and managing the internal memory. Sontag Declaration
at ¶6.
According to IBM, this is an impermissible "opinion," requiring expert
testimony under Rule 702 and should be struck. See IBM's Motion
to Strike at 8.
However, there is nothing about this statement that would constitute an
opinion under Federal
Rule of Evidence 702. This information is nothing more than background
on operating systems.
Moreover, there can be no legitimate dispute that it is information
well within the personal
knowledge of someone with Mr. Sontag's experience. See Sontag
Supplemental Declaration at ¶17. IBM
does not explain why it believes the statements listed above are
opinions requiring specialized
knowledge as set forth in Federal Rule of Evidence 702, rather than
being observations made by
Mr. Sontag in reliance upon his personal knowledge. However, as Mr.
Sontag makes clear, they
are all based on Mr. Sontag's personal knowledge.
2. Even if Treated as Opinion Testimony, The
Declarants Statements Are Admissible Lay Opinion
Even if the Court were to conclude that all (or portions) of the
declarations were opinion, it would still be admissible lay opinion
under Federal Rule of Evidence
701. Federal Rule of Evidence 701 permits lay witnesses like Mr.
Sontag, Mr. Gupta, and Mr.
Harrop to offer opinion testimony if the testimony is "(a) rationally
based on the perception
of the witness, (b) helpful to a clear understanding of the witness'
testimony or the determination of
a fact in issue," and (c) not based on scientific, technical, or other
specialized knowledge
within the scope of Rule 702. Fed. R. Evid. 701. "Lay opinion testimony
is... admissible when the
inference is a conclusion drawn from a series of personal observations
over time." 4 Jack B.
Weinstein, Weinstein's Evidence § 701.02 (2nd ed. 2004).
25
Thus, a
witness with personal
knowledge of the subject matter may give testimony in the form of "lay"
opinions or inferences rationally based on perception.
See Fenstermacher v. Telelect, Inc., 21 F.3d 1121 (Table), 1994
WL 118046, at ¶5 (10th Cir.
Mar. 28, 1994); see also Visser v. Packer Eng'g Assocs., Inc.,
924 F.2d 655, 659 (7th Cir. 1991)
("'[P]ersonal knowledge' includes inferences - all knowledge is
inferential - and therefore
opinions. But the inferences and opinions must be grounded in
observation or other first-hand
personal experience. They must not be flights of fancy, speculations,
hunches, intuitions, or
rumors about matters remote from that experience.") (citations
omitted). "A witness may give an
opinion when he has personal knowledge of the facts." Kloepfer v.
Honda Motor Co., Ltd.,
898 F.2d 1452, 1459 (10th Cir. 1990). "If a witness is not testifying
as an expert, his testimony
need be rationally based on his perception and helpful to determination
of a fact in issue to be
admissible." Id.
The Advisory Committee Notes to Rule 702 explain the distinction
(which
IBM misses) between lay opinion testimony offered in scientific or
technical areas
based upon personal experience and expert opinion testimony, such as
that now covered by
Rule 702. In explaining the difference, the commentators provide the
example of a
"lay witness with experience [who] could testify that a
substance appeared to be blood, but that a witness would have to
qualify as an
expert before he could testify that bruising around the eyes is
indicative of skull
trauma."
Fed. R. Evid. 702 Advisory Committee's Note to 2000 Amendments. Thus,
the Advisory Committee draws a distinction between facts and opinions
that a lay
witness may state based upon personal experience, versus those opinions
that require some
additional training or expertise to make the inferential leap from
observed facts to stated
conclusion. SCO's witnesses do not take that kind of inferential leap.
26
The Tenth Circuit in particular takes an expansive view of what lay
opinion testimony may be offered under Rule 701. The Tenth Circuit
allows lay witnesses to offer opinion testimony based on the witness's
personal experience and specialized knowledge obtained in his
profession. See, e.g., Weese v. Schukman, 98 F.3d 542, 550
(10th Cir. 1996) (allowing doctor testifying as lay witness to offer
opinion testimony about medical standard of care in community). Such
opinions may be admitted if they help the finder-of-fact to understand
the facts more completely.
The mere fact that Mr. Sontag and Mr. Gupta are knowledgeable about
computer science does not automatically convert their lay opinion into
"expert opinion" under Rule 702. A lay witness who has conducted a
study, even one based on specialized knowledge, may testify about the
facts learned during the course of that study, as well as the opinions
the witness formed which are rationally based on his perceptions of
that study, without being qualified as an expert under Rule 702. See
West Tennessee Chapter of Associate Builders and Contractors, Inc. v.
City of Memphis, 219 F.R.D. 587 (W.D. Tenn. 2004). As long as a
witness has personal knowledge of the facts, "he [is] entitled to draw
conclusions and inferences from those facts, regardless of whether he
applied any specialized expertise." Id. at 590.
In West Tennessee, the Defendant City of Memphis sought to
call as witnesses consultants who had prepared a study examining
whether racial disparities existed in City contracting. See id.
at 588. The Court allowed the witnesses to testify about the results of
the study they conducted, the methods they used, and what they observed
as lay witnesses over the Plaintiff's objection. The court rejected the
argument that the witnesses could not testify as lay witnesses because
their study was based on scientific or technical knowledge. See id.
at 590. The court allowed the witnesses to testify, concluding that
"the fact that a person has expertise
27
[does not] mean that the person must
be offered as an expert at trial. Id. at 589. The court allowed
the witnesses to testify about their "opinions rationally based on
their perceptions of the study, since they were the individuals who
conducted the study. Their testimony could be helpful to a clear
understanding of the facts at issue, since the methods of the study are
undisputedly at the center of the controversy in this case." See id.
at 590.
The fact that a witness has specialized knowledge, or that he
carried out an investigation because of that knowledge, "does not
preclude him from testifying pursuant to Rule 701, so long as the
testimony was based on the investigation and reflected his
investigatory findings and conclusions, and was not rooted exclusively
in his expertise." Bank of China, New York Branch v. NBM LLC
359 F.3d 171, 181 (2nd Cir. 2004). In Bank of China, the Second
Circuit held that one of plaintiff's employees with many years of
experience in international banking and trade could testify about his
investigatory findings and conclusions reached during the course of an
investigation he undertook for plaintiff because they were based on his
perceptions. See China Bank, 359 F.3d at 181.
In People v. Caldwell, 43 P.3d 663, 667 (Colo. App. 2001),
the Colorado Court of Appeals held that a crime scene technician could
present lay opinion testimony concerning the track bullets followed at
a crime scene. See id. The witness had traced the path of a
bullet backward from their holes, using dowels and string and was
allowed to testify as to his resulting observations, over objections
that the testimony constituted expert opinion. See id.
IBM cites Lifewise Master Funding v. Telebank, 374 F.3d 917
(10th Cir. 2004), for the proposition that "a lay witness is not
permitted to 'express an opinion as to matters . . . which require the
special skill and knowledge of an expert witness." IBM's Motion to
Strike at 7. However Lifewise stands for the proposition that
the mere fact that a witness' testimony may
28
include scientific,
technical, or other specialized knowledge does not automatically render
it inadmissible under Rule 701. In Lifewise, the Tenth Circuit
affirmed the district court's decision to exclude the testimony of a
bank president concerning factors used in a model for estimating
lost profits. See Lifewise, 374 F.3d at 929. "The model
concerned moving averages, compounded growth rates, and S-curves. Mr.
Livingston could not testify about these technical, specialized
subjects under Rule 701." Id. "[A]lthough Mr. Livingston was
the president of the company, he does not have personal knowledge of
the factors used by LifeWise's fourth damages model to estimate its
lost profits." Id. at 930. The court excluded the testimony
because testimony regarding the damages model itself was not
"rationally-related" to the witness' perception. See id. at 930.
However, the, court noted that the witness could have testified
about his "opinion as to lost profits using conventional methods based
on LifeWise's actual operating history. Indeed, the court essentially
invited LifeWise to have him so testify," even though he was not
qualified as an expert. See id. Thus, a witness can testify as
to matters involving specialized knowledge, provided the testimony is
rationally-related to the witness' perceptions.
Although IBM cites Hilgraeve Corp. v. McAfee Assocs., Inc.,
70 F. Supp. 2d 738, 735 (E.D. Mich. 1999), affirmed in part,
vacated in part, 224 F.3d 1349 (Fed. Cir. 2000) for the proposition
that computer science, is precisely the type of specialized knowledge
governed by Rule 702, the case does not support its position. In Hilgraeve,
the opinion being offered was an infringement opinion that required the
comparison of an accused product to the asserted claims of a patent. See
Hilgraeve, 70 F. Supp. 2d at 754. Thus, the expert's opinion called
upon him to do more than rationally relate his conclusions to his
perceptions. Reaching an "expert" opinion required the expert to "tie
observations to conclusions through the use of specialized knowledge
29
or
experience." Id. at 755. This higher standard applies to
experts, but not to all matters of computer science.
Neither Mr. Sontag nor Mr. Gupta testify to the ultimate issue of
copyright infringement. There can be no legitimate dispute that Mr.
Sontag's and Mr. Gupta's statements -- even when treated as lay opinion
-- are "rationally-related" to a series of personal observations of the
UNIX and Linux source code over time. Statements about the nature of
operating system kernels, what UNIX routines have been copied into
Linux and the like were derived from the witnesses' personal
observation.
C. Even if the Court Concludes the Witnesses
Should be Treated as Experts, SCO's Declarants Can Qualify as Such
IBM further objects to the declarations SCO submitted on the grounds
that they contain unqualified expert opinion. See IBM's Motion
to Strike at 6. Here
again, IBM misconstrues the purpose for which SCO offered its
supporting declarations. SCO was not
attempting to resolve this motion "on the merits." As SCO's brief
makes clear, SCO is
opposing IBM's motion under Rule 56(f). Consequently, SCO's
declarations are directed at what
discovery SCO needs and the reason why it needs it. Accordingly, IBM's
objections are misplaced and
should be ignored.
While SCO's three declarants need not be qualified as experts
because
their declarations are based on personal knowledge and offer only facts
and lay opinions,
the declarants education and work experience are more than sufficient
to qualify them as experts
for purposes of resolving the Rule 56(f) dispute currently before the
Court.
To permit expert testimony, the Court must determine whether the
proposed expert witness is qualified by "knowledge, skill, experience,
training or
education" to render an opinion. The dispositive question with regard
to qualification is whether the
opinion is "within the reasonable confines" of the expert's subject
area. Burton v. R.J.
Reynolds Tobacco Co., 183 F.
30
Supp. 2d 1308, 1313-14 (D. Kan. 2002).
As discussed above, the
declarants have many years of experience, and specific knowledge and
training in the confines of the
subject matter of their declarations. Each has first-hand, personal
knowledge of the matters
which he presents, or obtained pertinent knowledge from reliable
sources or public
information.
IBM's argument that Mr. Gupta's testimony is unreliable expert
testimony because he did not apply the
"abstraction-filtration-comparison" test, see Gates
Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823 (10th Cir.
1993), is misplaced. The Gates
Rubber test applies to analysis of copyright infringement. Mr.
Gupta's declaration
was offered not to show IBM's copyright infringement of SCO's protected
UNIX code, but to show that there is
evidence that UNIX source code has been copied into Linux. SCO offered
this showing in
support of its Rule 56(f) opposition to IBM's Cross-Motion to explain
to the Court why SCO cannot
yet present facts to oppose IBM's Cross-Motion on the merits.
D. The Court Should Reject the Drastic Remedy of
Striking Declarations
The Court has discretion in considering IBM's Motion to Strike.
Granting a motion to strike is considered a drastic remedy and is
generally disfavored. See
2 James Wm. Moore, Moore's Federal Practice §12.37 (3rd ed. 2004).
IBM's Motion
stands in sharp contrast to the indulgence generally shown to
declarations submitted in opposition to
summary judgment. "In general, courts are more indulgent of affidavits
submitted in
opposition to summary judgment in keeping with the standard that all
reasonable inferences are to be
drawn in the nonmovant's favor." Aoki Technical Laboratory v. FMT
Corp., Inc., No. Civ. 96-042 -
JD, 1999 WL 33601097, * 1 (D.N.H., Feb. 3, 1999). Even if IBM were
correct and the
declarations contained evidence outside of the witnesses' personal
knowledge, striking the
declarations is not the proper remedy. Instead, the better practice in
cases in which a party objects
to certain statements in a declaration is simply for the Court to
disregard the objectionable
statements. Striking of the
31
entire declaration is not required. See
Lee v. National Life
Assurance Co. of Canada, 632 F.2d 524, 529 (5th Cir. 1980).
CONCLUSION
For the foregoing reasons, the Court should deny
Defendant/Counterclaim-Plaintiff IBM's Motion To Strike Materials
Submitted By SCO In Opposition To
IBM's Cross-Motion For Partial Summary Judgment.
Respectfully submitted,
DATED this 7th day of September, 2004.
By: ____[signature]_____
Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE
Robert Silver
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
Frederick S. Frei
Aldo Noto
John K. Harrop
ANDREWS KURTH LLP
Counsel for Plaintiff/Counterclaim Defendant
32
1 IBM states: "[T]o the extent SCO offers Mr. Gupta,
Mr.
Sontag and
Mr. Harrop as fact (as opposed to expert) witnesses, their
testimony is inadmissible because not based on
personal knowledge." IBM's Motion to Strike at 3 (emphasis in
original).
2 Mr. Harrop's declaration states:
-
33. It is public knowledge that in contrast to
UNIX, AIX, Dynix, ptx and Dynix/ptx, the Linux operating system was not
developed under the control of any single
entity or corporation. In 1991 a Finish college student named Linus
Torvalds began composing an operating
system. In his classes, Mr. Torvalds had been studying an operating
system that one of his professors
(having received an educational license to do so) based on and derived
from UNIX.
-
34. Mr. "Torvalds posted the material about
the
operating system on the Internet for comment. The development of the
operating system thereafter became in effect a group
project in which Mr. Torvalds and his delegates made final
determinations about which suggestions from
numerous third parties, many of whom are anonymous, to incorporate. The
kernel of the operating system
that resulted came to be known as Linux. According to IBM, IBM and
thousands of third parties have
contributed source code to Linux.
3 Consequently, parties have been allowed to oppose
summary judgment with evidence frequently considered to be "hearsay."
For example, newspaper articles have been admitted in opposition to
summary judgment for the purpose of showing the existence of facts
which create a genuine dispute of material fact, even though newspaper
articles are typically treated as hearsay. See, e.g., Church of
Scientology Flag Service Org. Inc. v. City of Clearwater, 2 F.3d
1514,
1530-31 (11th Cir. 1993) (holding that various materials, including
newspaper articles, were appropriately submitted by the non-moving
party in opposition to the motion for summary judgment to show that
City Commission singled out Church of Scientology for burdensome
regulation). The Supreme Court similarly allowed an opponent to submit
three letters which constituted hearsay in opposition to a motion for
summary judgment. See Celotex, 477 U.S. at 320; see also
Offshore
Aviation, 831 F.2d at 1015.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I caused a true and correct copy of the
foregoing PLAINTIFF/COUNTERCLAIM DEFENDANT SCO'S MEMORANDUM IN
OPPOSITION TO IBM'S MOTION TO STRIKE MATERIALS SUBMITTED BY SCO IN
OPPOSITION TO IBM'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT to be
mailed by U.S. Mail,
first class postage prepaid, this 7th day of September,
2004, to the following:
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Copy to:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Attorneys for Defendant/Counterclaim Plaintiff IBM Corp
___[signature]_____
33
|
|
Authored by: hirvox on Thursday, December 09 2004 @ 04:32 AM EST |
Remember to <a href="http://www.example.com/">link</a> properly. [ Reply to This | # ]
|
- More allegations concerning SCOG. - Authored by: Anonymous on Thursday, December 09 2004 @ 08:23 AM EST
- OT - BBC - OponOffice in Swahili - Authored by: Anonymous on Thursday, December 09 2004 @ 08:24 AM EST
- Illegal Procedures at WIPO Pushes Controversial Broadcast Treaty Forward - Authored by: Anonymous on Thursday, December 09 2004 @ 08:28 AM EST
- Links to interesting information / PC history - Authored by: clark_kent on Thursday, December 09 2004 @ 08:33 AM EST
- OT Somebody's Christmas Present? - Authored by: Brian S. on Thursday, December 09 2004 @ 09:03 AM EST
- OT Expensive Sport!! - Authored by: Brian S. on Thursday, December 09 2004 @ 09:50 AM EST
- DOS interupt table - Authored by: Anonymous on Thursday, December 09 2004 @ 10:17 AM EST
- Wow... - Authored by: utahbob55 on Thursday, December 09 2004 @ 03:32 PM EST
- M$ has been very quiet lately ... - Authored by: Anonymous on Thursday, December 09 2004 @ 12:52 PM EST
- Linux Kernel maintainer 'barred' from patents meeting - Authored by: Anonymous on Thursday, December 09 2004 @ 01:15 PM EST
- OT: Canon loses printer recycling case - Authored by: Anonymous on Thursday, December 09 2004 @ 02:00 PM EST
- OT: DVD CCA sues Kaleidescape over DVD copying machine - Authored by: Anonymous on Thursday, December 09 2004 @ 04:19 PM EST
|
Authored by: hirvox on Thursday, December 09 2004 @ 04:34 AM EST |
You know the drill.. [ Reply to This | # ]
|
- " All this document is about is why SCO" - delete second "is" n/t - Authored by: Anonymous on Thursday, December 09 2004 @ 04:39 AM EST
- [/small] or [/sup] tag missing at end of page 22 - Authored by: fudisbad on Thursday, December 09 2004 @ 04:48 AM EST
- Corrections here - Authored by: Anonymous on Thursday, December 09 2004 @ 05:01 AM EST
- In the argument section, first paragraph - Authored by: Anonymous on Thursday, December 09 2004 @ 05:05 AM EST
- Certificate of Service - Authored by: fudisbad on Thursday, December 09 2004 @ 05:15 AM EST
- "beyold" should be "behold" - Authored by: Anonymous on Thursday, December 09 2004 @ 09:02 AM EST
- s/iJNIX/UNIX/ - Authored by: Anonymous on Thursday, December 09 2004 @ 11:24 AM EST
- p. 23 at the end - Authored by: Anonymous on Thursday, December 09 2004 @ 01:01 PM EST
- Lo and beyold - Authored by: Anonymous on Thursday, December 09 2004 @ 03:14 PM EST
- Lo and beyold - Authored by: PJ on Thursday, December 09 2004 @ 10:04 PM EST
- The Finns Are Not Finished - Authored by: hauva on Thursday, December 09 2004 @ 05:07 PM EST
|
Authored by: AG on Thursday, December 09 2004 @ 04:43 AM EST |
SCO clearly can't win any more. They are not even trying to win. They are
merely trying to stall, but even at that they are terrible. The licensing
business is dead. Microsoft and everything aside, what exactly is the plan
now? Obviously nobody is going to buy them out. So what is the best case
solution SCO could be hoping for?[ Reply to This | # ]
|
|
Authored by: Anonymous on Thursday, December 09 2004 @ 04:52 AM EST |
"The first act, 'allocating a new data structure of a certain size,' is
expressed in UNIX RCU and Linux RCU by a single line of nearly identical code.
So finally there is proof of copying huh? ROFL
For the non-programmers out there, in code you tend to do things the shortest
possible way, and this code is analogous to answering the question "how old
is Fred?"
Fred is 76..
I can't imagine why the answers (1 line of code) are nearly identical can you?
ROFL[ Reply to This | # ]
|
|
Authored by: krnk2000 on Thursday, December 09 2004 @ 05:00 AM EST |
What they say here is not that they have proof of SCOs copyrighted material in
Linux, but that they might, in some faraway future, have such proof. Of course
that is so since the start of the case.
What i am wondering about is: when will that lack of any proof be held against
them?
At this time my impression of the US legal system is that you can go into court
without any proof at all and entangle any choosen opponent in lengthy and costly
litigation and draw it out for ever or until one of the two of you runs out of
money. Of course it'd be foolish to take up a big corporation in that manner
(but even they might decide it's cheaper to throw some money at you to make it
go away) but against any private person that's not a millionaire that strategy
is a sure winner.
Isn't there any safeguard, any way to say: "stop here and present proof now
or it won't go on"? Aparently PSJ were built into the system to provide
such means, but to me it seems they just added another layer (of course it's an
additional hurdle to SCO) and now all the back and forth and mincing of words
and drawing out the process got just shifted before the PSJ.
[ Reply to This | # ]
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|
Authored by: Anonymous on Thursday, December 09 2004 @ 06:00 AM EST |
"The deliberate, willful giving of false, misleading, or incomplete testimony
under oath."
I mean, we know that they read Groklaw. They're making claims
for which they have no evidence and no possible good faith grounds for
believing are true.
So, at what point does lying to a court go beyond mere
ignorance and incompetence, and become a felony? I'd really like to know when
IBM are going to start calling them on this stuff, and if it's beyond the pale
for IBM to use the p-word. [ Reply to This | # ]
|
- Perjury - Authored by: gormanly on Thursday, December 09 2004 @ 06:27 AM EST
- Perjury - Authored by: LarryVance on Thursday, December 09 2004 @ 07:53 AM EST
- Perjury - Authored by: Anonymous on Thursday, December 09 2004 @ 08:18 AM EST
- Perjury - Authored by: bstone on Thursday, December 09 2004 @ 08:36 AM EST
- Perjury - Authored by: SpaceLifeForm on Thursday, December 09 2004 @ 06:47 AM EST
- Perjury - Authored by: Anonymous on Thursday, December 09 2004 @ 08:32 AM EST
|
Authored by: hardcode57 on Thursday, December 09 2004 @ 06:06 AM EST |
<At least SCO didn't quote Linus that Santa Claus wrote Linux>
Don't you rather wish they had? [ Reply to This | # ]
|
- Latest SCO tactic - Authored by: Anonymous on Thursday, December 09 2004 @ 08:04 AM EST
- Santa Claus - Authored by: mossc on Thursday, December 09 2004 @ 08:19 AM EST
- Santa Claus - Authored by: uw_dwarf on Thursday, December 09 2004 @ 10:26 AM EST
- Santa Claus - Authored by: Anonymous on Thursday, December 09 2004 @ 01:50 PM EST
- Santa Claus - Authored by: mossc on Thursday, December 09 2004 @ 12:56 PM EST
- Santa Claus - Authored by: Nick on Thursday, December 09 2004 @ 09:56 AM EST
- :o) - Authored by: bruzie on Thursday, December 09 2004 @ 03:21 PM EST
- ;-) /nt - Authored by: Nick on Thursday, December 09 2004 @ 04:42 PM EST
- Santa Claus - Authored by: ujay on Thursday, December 09 2004 @ 12:57 PM EST
|
Authored by: Anonymous on Thursday, December 09 2004 @ 06:21 AM EST |
2 Mr. Harrop's declaration states:
33. It is public knowledge that
in contrast to UNIX, AIX, Dynix, ptx and Dynix/ptx, the Linux operating system
was not developed under the control of any single entity or corporation. In 1991
a Finish college student named Linus Torvalds began composing an operating
system. In his classes, Mr. Torvalds had been studying an operating system that
one of his professors (having received an educational license to do so) based on
and derived from UNIX.
34. Mr. "Torvalds posted the material about the
operating system on the Internet for comment. The development of the operating
system thereafter became in effect a group project in which Mr. Torvalds and his
delegates made final determinations about which suggestions from numerous third
parties, many of whom are anonymous, to incorporate. The kernel of the operating
system that resulted came to be known as Linux. According to IBM, IBM and
thousands of third parties have contributed source code to Linux.
3
Consequently, parties have been allowed to oppose summary judgment with evidence
frequently considered to be "hearsay." For example, newspaper articles have been
admitted in opposition to summary judgment for the purpose of showing the
existence of facts which create a genuine dispute of material fact, even though
newspaper articles are typically treated as hearsay. See, e.g., Church of
Scientology Flag Service Org. Inc. v. City of Clearwater, 2 F.3d 1514, 1530-31
(11th Cir. 1993) (holding that various materials, including newspaper articles,
were appropriately submitted by the non-moving party in opposition to the motion
for summary judgment to show that City Commission singled out Church of
Scientology for burdensome regulation). The Supreme Court similarly allowed an
opponent to submit three letters which constituted hearsay in opposition to a
motion for summary judgment. See Celotex, 477 U.S. at 320; see also Offshore
Aviation, 831 F.2d at 1015.
So here they're basically saying that
other people are confused about the origin of Linux, so we can ignore this
PSJ....
They're not actually claiming they believe that tissue of lies from
ADTI, they're just saying that some people have that impression.
Linus and co
should have sued ADTI, retractions don't seem to be enough for some people.[ Reply to This | # ]
|
|
Authored by: tredman on Thursday, December 09 2004 @ 06:28 AM EST |
I'm sorry, but the fact that footnote 3 tries to use references to legal
wranglings by the Church of Scientology pretty much tells me all I need to
know.
So far, they've tried to use legal posturing based off of CoS, RIAA, MPAA and
other legal eagles. When do they get to the reference about the lady who sued
McDonalds because she spilled her coffee in her lap?
Tim[ Reply to This | # ]
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Authored by: Groklaw Lurker on Thursday, December 09 2004 @ 07:47 AM EST |
"...At least SCO didn't quote Linus that Santa Claus wrote Linux..."
Yeah, that would have given them a better case then they have now... :)
---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.[ Reply to This | # ]
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|
Authored by: Anonymous on Thursday, December 09 2004 @ 07:50 AM EST |
RE: "And Mr. Gupta noticed some similarities in things like header
files".
Here is what a JUDGE, in the USL vs BSDI case, already RULED on... about how
protectable that UNIX header files are:
http://www.groklaw.net/comment.php?mode=display&sid=20041203050017308&ti
tle=Interesting+quotes+from+USL+vs+BSDI+injunction+RULING...&type=article&am
p;order=&hideanonymous=0&pid=246942#c247136
"Interesting quotes from USL vs BSDI injunction RULING..."
Authored by: Anonymous on Saturday, December 04 2004 @ 09:56 PM EST
[begin quote]
After reviewing the affidavits of Plaintiff's and Defendants, experts, a great
deal of uncertainty remains as to what trade secrets Net2 might contain. One
fact does seem clear: the header files, filenames, and function names used by
Defendants are not trade secrets. Defendants could have printed these off of any
of the thousands of unrestricted copies of Plaintiff's binary object code.
(Kashtan Aff. at 9-11.) Moreover, the nonfunctional
elements of the code, such as comments, cannot be trade secrets because these
elements are minimal and confer no competitive advantage on Defendants. The
copied elements that contain instructions, such as BREAD and CPIO, might perhaps
be trade secrets, but Defendants' experts have argued persuasively that these
instructions are either in the public domain or otherwise exempt. As Defendants
have repeatedly emphasized, much of 32V seems to be publicly available.
[end quote]
[ Reply to This | # ]
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Authored by: Frank Sweetser on Thursday, December 09 2004 @ 08:01 AM EST |
Hmmm...
SCO teaches us that courts now accept "informal" evidence like
letters, newspaper clippings, executive background information summaries and
other nifty third hand stuff. It's allowed, sez they, even if it's not
-strictly- legal because, what the hey, everybody is doing it now, O.K.?
O.K.
Seems to me that by SCO's reasoning IBM should be permitted, even encouraged, to
bundle up every last loose byte of all of Groklaw.org and just dump it on the
judge's desk. There's ever so much nifty evidence here, even if some is a bit
third hand, or forth, or just plain "permissable lay person opinion."
-- Frank Sweetser
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 08:25 AM EST |
I've somewhat lost track of where we are. Do IBM get an opportunity to respond
to this?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 08:31 AM EST |
How comes that it is possible to put so much outrages lies into the filings (now
I am also talking about the previous filings)? I would expect that you are
supposed to tell truth to the court so why doesn't the judge punish SCO for
blatantly false statements?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 08:31 AM EST |
Quoting PJ:
> At least SCO didn't quote Linus that Santa Claus wrote Linux.
No no... That comes later... knowing SCO has gone completely whacko you can bet
your ... well yknow ... that they'll definitely have that comment in an upcoming
response. and use it somehow.
in a "pump and dump" scheme - which is exactly what SCO is, you try
anything and everything, delay is your only wish, more and more delay - get the
stock moving for as long as possible so you and your cronies can cash out as
much as possible until the axe hits.
this is a well-established and time-honored tradition, and it works well.[ Reply to This | # ]
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Authored by: Steve Martin on Thursday, December 09 2004 @ 09:14 AM EST |
Mr. Gupta's declaration covers five principal areas: 1) The
UNIX Read-Copy-Update ("RCU") routines which can be found in Linux. 2) the UNIX
Inter-Process Communications ("IPC") Code was copied into Linux; 3) Sequent
employees had access to UNIX RCU and could have copied that into Dynix, which
was released into Linux; 4) the User Level Synchronization routines of UNIX and
Linux are substantially similar; and 5) the UNIX Inter-Process Communications
("IPC") code was copied into Linux.
Um, unless I just
need more coffee this morning before my eyes can distinguish, I just count
four areas (numbers two and five are identical).
And they're
actually paying someone for this?
--- "When I say something, I put my
name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: Thomas Downing on Thursday, December 09 2004 @ 09:16 AM EST |
Linux contains copied portions of UNIX source code which suggests
that further discovery will reveal that Linux infringes SCO's UNIX
copyrights
I thought you were supposed to have at least
some evidence of a tort before filing a complaint?
The way I read
this, SCO is acknowledging that they didn't have such evidence - some that is
obvious to us.
--- Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc. [ Reply to This | # ]
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Authored by: James on Thursday, December 09 2004 @ 09:19 AM EST |
"Mr. Gupta's declaration covers five principal areas: 1) The UNIX
Read-Copy-Update ("RCU") routines which can be found in Linux. 2) the UNIX
Inter-Process Communications ('IPC') Code was copied into Linux; 3) Sequent
employees had access to UNIX RCU and could have copied that into Dynix, which
was released into Linux; 4) the User Level Synchronization routines of UNIX and
Linux are substantially similar; and 5) the UNIX Inter-Process Communications
('IPC') code was copied into Linux."
Am I the only one to
notice that #2 and #5 are exactly the same? So Linux is guilty of "infringing"
the IPC code twice? [ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 09:38 AM EST |
the MP Agreement is mentioned in section B2, page 8. I don't think I've ever
seen that defined before. What is the background on this?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 10:16 AM EST |
TFF!
If you look at the qualifications for Sontag it lists "BA from BYU blah
blah blah took courses in said area which qualify him as an expert.
So SCO wants us to belive if you took a course on cooking in college, you are
expert. Same with English, huh.
Darl McBride, math genius and expert non-parte.
This has to be one the funniest reaches I have ever seen to define an expert. I
sure as heck am more an expert in the area of code compare then Sontag any day
(kicked his butt at Novell a couple times on some really DUMB issues he wanted
to pursue) but saying a college class makes on an expert is like saying drivers
ed makes one a race car driver.[ Reply to This | # ]
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Authored by: justjeff on Thursday, December 09 2004 @ 10:35 AM EST |
Its probably a little late in the game, but it recently occured to me how IBM
could reduce or eliminate the worthless and useless opposing declarations.
Instead of a motion to strike testimony, countersue for libel.
This would only work, obviously, for the most contrived and ficticious
statements. However, it would serve to keep opposing statements "in
bounds."
Sometimes I think of what I would do or say if I were a Caldera/SCO employee.
I'm pretty sure I would cooperate with the company's efforts, up to a point.
If SCO said, "We need someone to say that the moon is made of cheese,"
I would probabaly balk. Knowing that I would get sued for libel would make it
more of a certainty.
[ Reply to This | # ]
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Authored by: justjeff on Thursday, December 09 2004 @ 10:36 AM EST |
Its probably a little late in the game, but it recently occured to me how IBM
could reduce or eliminate the worthless and useless opposing declarations.
Instead of a motion to strike testimony, countersue for libel.
This would only work, obviously, for the most contrived and ficticious
statements. However, it might help serve to keep opposing statements "in
bounds."
Sometimes I think of what I would do or say if I were a Caldera/SCO employee.
I'm pretty sure I would cooperate with the company's efforts, up to a point.
If SCO said, "We need someone to say that the moon is made of cheese,"
I would probabaly balk. Knowing that I would get sued for libel would make it
more of a certainty.
[ Reply to This | # ]
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Authored by: jim Reiter on Thursday, December 09 2004 @ 10:38 AM EST |
TSG's entire case is based on the allegation that TSG owns
something, and yet TSG has yet to produce a single
document that supports TSG's claim of ownership of
anything.
The question remains, "what does TSG own and how did it
(TSG) come to own it?"
And why is TSG hiding the list of Santa Cruz Ops, Inc.
contributed asset (Exhibits 13.15) from the
Reorganization/merger agreement?
TSG is dead. [ Reply to This | # ]
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Authored by: MplsBrian on Thursday, December 09 2004 @ 10:52 AM EST |
Anyone have one of those handy charts that outlines on which motions we're
awaiting decisions? Judge Wells has a few discovery issues to decide, while
Kimball gets the whopper counterclaim decisions. Also, are any hearings
upcoming?[ Reply to This | # ]
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Authored by: elderlycynic on Thursday, December 09 2004 @ 10:58 AM EST |
This is so pitiful that I am almost tempted to offer my
services to SCO so that Kimball can honestly admit that
there is at least one point where SCO should be given the
benefit of the doubt on the technical issues. I find the
following almost unbelievable:
The first act, 'allocating a new data structure of a
certain size,' is expressed in UNIX RCU and Linux RCU
by a single line of nearly identical code. ...
Er, yes. Was it, by any chance, something like?
struct lock *ptr = malloc(sizeof(struct lock));
or
lock_type *ptr = new_lock();
As I understand it, Sandeep Gupta's original declaration
and the exhibit that contains this is sealed. This was
possibly to avoid public humiliation.
[ Reply to This | # ]
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- And didja notice? - Authored by: Anonymous on Thursday, December 09 2004 @ 02:59 PM EST
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Authored by: Thomas Frayne on Thursday, December 09 2004 @ 12:17 PM EST |
September 15 hearing before Kimball
THE COURT: There are four motions set for hearing today: SCO's Motion to Dismiss
or, in the Alternative, Stay Defendant's Counterclaim 10, Count X; IBM's Motion
for Partial Summary Judgment on IBM's Tenth Counterclaim; Plaintiff SCO's Rule
56(f) Motion; IBM's Motion to Strike Material Submitted by SCO in Opposition to
IBM's Cross-Motion for Partial Summary Judgment. Let's argue this way. Let's
take SCO's Motion to Dismiss or, in the Alternative, Stay, and argue that one.
And then the other three we'll argue together. ...
All right. That motion is taken under advisement. Now we'll argue the three
remaining motions: IBM's motion for partial summary judgment under its Tenth
Counterclaim. ...
The Motion for Partial Summary Judgment, the 56(f) Motion and the Motion to
Strike are submitted and taken under advisement.
October 19 hearing before Wells
http://www.groklaw.net/article.php?story=20041015212103661 lists the motions
and the related memos.
Order (SCO v. IBM) that 1) both parties will prepare and exchange privilege
logs, 2) IBM will provide affidavits from the Board of Directors, Mr. Palmisano,
and Mr. Wladawsky-Berger regarding production of non-privileged documents, 3)
the remainder of SCO's motion is taken under advisement, and 4) the court, sua
sponte, seals the transcript of the hearing on October 19, 2004. Signed October
20, 2004 by Judge Brooke C. Wells. (2004-10-20) [ Reply to This | # ]
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Authored by: StLawrence on Thursday, December 09 2004 @ 12:26 PM EST |
Hey SCO management & board members!
You're responsible for this sort of legal garbage. It is
blatantly disgusting, and you should all be ashamed of your
roles in and association with SCO. It's a new world, and
the Internet has rendered this kind of thing "public" to a
degree you obviously do not comprehend.
Wherever you go, whenever you try to land a new position,
people will Google you and this fiaSCO will be at the top
of the list. Your explanation that "the lawyers were
calling the shots" isn't going to fly.
You are responsible, and the world at large will hold you
accountable. The Internet has a long memory.
[ Reply to This | # ]
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Authored by: be2weenthelines on Thursday, December 09 2004 @ 12:35 PM EST |
Just one more example of SCO's laughable attempt to re-characterize
"opinion" as "fact" (from page 9):
"With regard to the organization of Linux SysVIPC and UNIX System V IPC,
both consist of three mechanisms: message queues, semaphore, and shared memory.
There is no reason for the organization to be identical other than the fact that
Linux SysVIPC has been copied from UNIX System V IPC." Gupta Declaration at
¶53.
This is plainly an argument as follows:
A) Linux SysVIPC and UNIX System V IPC contain common elments. (Assertion,
possibly even one a lay person might be able to make from personal knowledge.)
B) Their organization is identical. (Conclusion, based on evidence A, but could
also be considered an additional independent assertion; in either case, I
believe only an expert could attest to this.)
C) Their organization is identical implies one was copied from the other.
(Assertion. Also requires expert opinion because there could be other
constraints substantially dictating the organization.)
D) Linux SysVIPC has been copied from UNIX System V IPC. (Conclusion. If C
were given as true, then even a lay person could draw this conclusion.)
What's interesting (to me anyway) is the way SCO's lawyers try to disguise the
fact that its an argument (or opinion) by their phrasing, especially the part
"...the fact that Linux SysVIPC has been copied from UNIX System V
IPC." They start with a fact that might be something a lay person could
attest to, and end with a conclusion that any lay person could justifiably make,
but in the middle they try to hide some necessary steps that only a qualified
expert could justify. Very sneaky!
Still, I doubt any judge, even one more ignorant about operating systems than I
am, would miss these simple distinctions. I'm guessing the whole thig gets
tossed.
Meanwhile, along with everybody else following this case, I wonder "Where
are the sanctions?" for these egregiously deceptive filings?[ Reply to This | # ]
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- Nicely put (eom) - Authored by: Anonymous on Thursday, December 09 2004 @ 12:43 PM EST
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Authored by: Anonymous on Thursday, December 09 2004 @ 01:20 PM EST |
Remember SCO's experts who claimed there were millions of lines of stolen code?
Well IBM asked for their reports and SCO said that they wouldn't provide them
because the weren't planning on using it in the trial. Is SCO now stuck without
expert witnesses due to that statement or can they change their mind? If they
change their mind does that mean IBM will get access to the MIT rocket
scientists?[ Reply to This | # ]
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Authored by: Observer on Thursday, December 09 2004 @ 01:46 PM EST |
Sco is like a dog that keeps barking up the wrong tree... long after the tree
has been cut down and dragged away. --- The Observer [ Reply to This | # ]
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- MINIX - Authored by: frk3 on Thursday, December 09 2004 @ 01:49 PM EST
- MINIX - Authored by: DebianUser on Thursday, December 09 2004 @ 07:13 PM EST
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Authored by: Anonymous on Thursday, December 09 2004 @ 01:48 PM EST |
Some days it is hard to keep the language clean. I did, but reading this was
very hard. I will be very happy when SCO if off of life support, and can just
die.
How can SCO claim that the following is fact and not an opinion:
>> "This 'initial" review could take on the order of 25,000
man-years.'" Sontag Declaration at ¶14.<<
When it is so obvious that it is wrong. An opinion can be wrong, but a fact is
a fact. I am not claiming that Mr. Sontag's math is incorrect, but that his
assumptions of how to compare code are absurd. SCO wants the court to just look
at the math, and adds the following:
>>The third so-called "opinion" is a mathematical calculation
based upon Mr. Sontag's knowledge of the amount of information that would need
to be analyzed and how long it would take if one just assumed it took a fixed
amount of time to review each page. It is a simple arithmetic calculation that
requires no specialized scientific skill.<<
No expert or even novice programmer would compare each and every page of UNIX to
each and every page of Linux. You would compare the pages of memory management
to each other, not memory management to device module loading. This should
disqualify Mr. Sontag as an expert or even an informed lay person. Based on his
education I do not see how he could make the assumptions for his calculation.
In conclusion, I agree with SCO that a lay person (even Mr. Sontag) can do the
math, but it takes an expert or at least a competent programmer to come up with
the formula for how long the comparison would take.
I also do not understand how any statement that uses “Assume” can be a fact and
not an opninon.
[ Reply to This | # ]
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- Sontag, expert? - Authored by: Anonymous on Thursday, December 09 2004 @ 02:14 PM EST
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Authored by: rp$eeley on Thursday, December 09 2004 @ 02:03 PM EST |
Just one more example of SCO's laughable attempt to re-characterize
"opinion" as "fact" (from page 9,634,216). Sheesh!
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 02:20 PM EST |
Reading this bletcherous filing by SCO makes me sick to my stomach. It is full
of deliberate falsehoods and weaselwordage.
I have to go re-read one of IBM's filings now to feel clean again.[ Reply to This | # ]
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Authored by: pfusco on Thursday, December 09 2004 @ 03:04 PM EST |
Didnt SCO just a little while ago swear that this whole thing wasnt about
copywrites? That it was just about a silly lil contract?
What confuses me
here is that this counter claim defense is the exact same stuff as their
complaint.
Meh... just more crap --- only the soul matters in the end [ Reply to This | # ]
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Authored by: sagitta on Thursday, December 09 2004 @ 04:03 PM EST |
In a Groklaw article dated December 9, 2004, for example, the journalist and
former paralegal, Ms. Pamela Jones, grudgingly acknowledged with respect to the
issue of whether Linux infringes on SCO's copyrights: '...Santa Claus wrote
Linux'.
---
Sagitta[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 04:57 PM EST |
Wasn't one of IBM's arguments in the first place that SCOX was merely using this
as another bite at the apple to argue their additional discovery motion, and
that it had nothing to do with opposing CC10?
And now SCOX obligingly agrees, and states that these declarations were only to
support their 56(f) motion.
They not only fail to provide any reason not to strike the declarations, but
provide additional support for IBM's reason why they should be stricken.
Yet more holes shot in SCOX's feet.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 04:59 PM EST |
In the good old days when SCO (ahem, Caldera) sued IBM, there was much panic in
our ranks. Everyone scrambled to find out if there is in fact something dodgy in
the kernel. The Groklaw was born, people got educated on copyright, GPL,
patents, legal procedures and what not.
Many months later, SCO part of Groklaw looks a lot like a soap opera (and this
is by no means a result of anything PJ does). Our dear friends at SCO have shown
that they have no evidence whatsoever, their legal team is occasionally
bordering on malpractice and their submissions to the court read like a Police
Academy XV script. A great deal of fun for everyone, except poor old Darl, I'm
sure. The silly season seems to be always on in Lindon, Utah :-)
Honestly, these days I go to Groklaw to find relevant information about patent
threats and other legal shenanigans our proprietary software makers care to
throw at us. The bits about SCO are "comic relief", I kid you not ;-)[ Reply to This | # ]
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Authored by: WildCode on Thursday, December 09 2004 @ 05:07 PM EST |
When I read SCO's reason for saying there "must" be unix in linux
(Linus attended a class on OS programming that focused on UNIX). What I see is
SCO saying, "Anything learnt from textbooks cannot be applied to ideas and
put into practise because it will breach the IP of the text book/lesson authors,
no matter how different from the original text."
Anyone else get the same feeling?[ Reply to This | # ]
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Authored by: webster on Thursday, December 09 2004 @ 07:41 PM EST |
The judge is thinking about this motion in the context of the PSJ on IBM
counterclaim 10 clearing IBM activities of copyright infringement. He doesn't
even need to deal with it if he is inclined to grant IBM's motion.
If he is inclined to deny IBM's motion, then he has to explain on what basis he
does so. He will have to give a detailed response to this motion then to be
sure his opinion is unassailable. He does not want to base it on material that
should have been striken.
This is a devastating motion by IBM. It virtually makes SCO concede that there
isn't any current evidence of copyright infringement. SCO's response presents
the answer to the fundamental unanswered question, "On what basis did SCO
bring their copyright claim?"
SCO answer: "We don't know yet?
This is a devastating motion by IBM. It shifts the debate from "should the
PSJ be granted" to "is there any basis to SCO's opposition." The
basis has to be contested facts. Remember PSJ's (and SJ's) are only appropriate
when there are essentially no contested facts. SCO's threshold of proof is very
low here.
SCO is trying to present these "facts" i.e. similar code, Unix to
Linux and suggest that there must be more. All the while they omit hardcopy
copyrights and transfers thereof. Similar code is not infringed code and the
omission of copyrights blots every page. Remember there is another pile on
Kimball's desk labeled with the back of a scrap page with a magic-marker
scrawled "N" on it. That stands for the Novell pile where Kimball
learned a lot about SCO's lame copyright situation. Despite SCO's low threshold
of proof all this gives IBM a fighting chance to get it's PSJ. Indeed, SCO has
even dropped the claim and said as much in court and stonewalled on the code and
named no experts..... SCO is really making it hard for Kimball to do the
routine thing, deny the PSJ and let it go to trial. Really hard.
What follows is a cheap version of a "Quatermassive" response, i.e.
just an annotated SCO table of contents, not research really, I don't have time
(and am too lazy).
ARGUMENT
I. SCO's Declarants Presented Factual Testimony Based on Their Personal
Knowledge To Demonstrate SCO's Need for Further Discovery Under Rule 56(f)
[Ah, SCO's need for "Further Discovery." That also means they don't
have anything now. It also means, "Stop being stupid, judge. Give us the
discovery we want. Stop sucking up to IBM." N.B. this is the personal
knowledge of SCO insiders, not just anybody!]
A. Chris Sontag Presented Facts Showing the Scope of the Discovery SCO Needs
1. The Magnitude of the Discovery Task Based on the Amount of the Source Code
2. The Tools SCO Could Use to Show Copyright Infringement
[This is a fraud. Since they dropped their copyright claim, it only pertains to
their "derivative" contract claim. They are no longer looking for
copyright infringement. The "Could" indicates they can't now, and
don't have anything.]
3. The Discovery SCO Needs and Can Use to Respond to IBM's Tenth
Counterclaim
[It was SCO who brought a copyright claim. Just show those lines they had in
mind when they started and they defeat the PSJ. They obviously can't.]
B. Sandeep Gupta Presented Facts Showing that Linux Contains Source Code
Copied from UNIX
[So what? Even if it was code copied from UNIX, SCO has to show it was code
subject to a copyright. As it stands now, someone could copy all of UNIX and
SCO can't do anything. They have to show a copyright]
1. The UNIX Read-Copy-Update ("RCU") Routines Can be Found in Linux
[So what? Where's a copyright? Is it protectable, protected, by who?]
2. Sequent Employees Had Access to UNIX RCU and Could Have Copied that
Into Dynix, Which was Released into Linux
["Could Have" is speculation. They should allege the proof that they
have discovered. "Could Have" is inadmissible.]
3. The User Level Synchronization Routines and Inter Process
Communication Source Code and Header Files of UNIX and Linux are Substantially
Similar
[The Nonliteral Copyright.]
4. Linux has Copies of UNIX Interface and Header and Init and Executable
Linking Format ("ELF") Code
[Doesn't pass the AFC infringement or the pencil test. Interface code is not
protectable.]
C. John Harrop Presented Facts Showing the Procedural Posture of the Case
and SCO's Unsuccessful Attempts to Secure Needed Discovery From IBM
[Rather than call the judge wrong and stupid, they blame IBM for doing what the
court has ordered. They should just submit and wait for the appeal, but the
longer this takes the longer the sales drag on Corporate Linux takeup. Some
people will stick with their Unix and M$ until the Court blesses Linux.]
1. Facts Giving Rise to the Case and the Procedural History of the Dispute
[Yes. Where are these facts, this code, these experts, their opinions,
turn-tale coders, Unisian historians and copyrights of course?]
2. The Impact of IBM's Tenth Counterclaim on the Discovery SCO Needs
[The counterclaim is the result of SCO Discovery Needs: they needed to provide
discovery of their evidence. They stonewalled. They had no evidence. Thus the
claim.]
3. Depositions of Contributors are Needed to Determine the Origins of
the Linux Source Code
[What's stopping them? They had over a year. Yes, the delay in negotiating
their lawyers' fee cap.]
II. SCO's Declarants Presented Proper Declarations and IBM's Motion to Strike
Should be Denied
[So, Judge, even if your honor don't strike them all, you can give them
considerably less respect.]
A. SCO's Declarants Presented Testimony Based Upon Their Personal Knowledge
[They have been continuously tuned into their paychecks and the pary line at all
times relevant to the matters addressed herein.]
1. Mr. Sontag's Declaration was Based on His Personal Knowledge Developed
During His Education, Career and Participation in this Case
2. Mr. Gupta's Declaration was Based on His Personal Knowledge Developed
During His Education, Career and Participation in this Case
[And they have been rubbing shoulders with Darl and Blake throughout. They have
never testified as experts or applied the court AFC infringement test. They
haven't seen a SCO copyright either.]
3. Mr. Harrop's Declaration was Based on His Personal Knowledge and
Participation in this Case
[Indeed.]
4. IBM's Grounds for Striking Seventy-Two Paragraphs of the Harrop
Declaration are Baseless
[...don't remember, It's late....]
B. SCO's Witnesses Do Not Present "Opinion" Testimony Within the
Scope of Rule 702
[So if it is not opinion and not evidence of infringed code and ownership of
infringed copyrights, what is it?]
1. The Declarants Present Facts -- Not Opinions -- in Their Testimony
[Do these facts present evidence of copyright infringement, i.e. infringed code
and copyrights? No, just a hope for more discovery.]
2. Even if Treated as Opinion Testimony, The Declarants Statements Are
Admissible Lay Opinion
[Worthless. They need an expert. Isn't there someone out there they could pay
to examine this code? They could then present his declaration. Someone who has
testified in court and knows how to do it. That's just what they need.]
C. Even if the Court Concludes the Witnesses Should be Treated as Experts,
SCO's Declarants Can Qualify as Such
[In SCO dreams.]
D. The Court Should Reject the Drastic Remedy of Striking Declarations
[The Court will reject this drastic remedy. It is easier just to grant the PSJ
without inviting extra trouble. The judge can just call it lousy evidence
rather than strike it. Then all they can appeal is the courts abuse of
discretion.]
I'm glad this is over. How does the Q-team do it?
---
webster[ Reply to This | # ]
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Authored by: Anonymous on Thursday, December 09 2004 @ 07:44 PM EST |
I counted the word 'discovery' 56 times in the document, but could have made a
mistake. Is this the usual amount for SCO, or is anyone keeping track?[ Reply to This | # ]
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Authored by: nico on Thursday, December 09 2004 @ 09:07 PM EST |
SCO keeps complaining about not having access to IBM's CMVC system. I used to
think that this was a pure fishing expedition; that SCO hoped with enough
access, they would find something that could convince a jury that code was
copied.
But now, I think that it is purely a delay tactic. SCO knows
IBM doesn't want to extend all of the effort necessary, so they ask for
something they know they won't get. I don't think SCO has any intention of
doing any code comparisons. It's all about how much pain they can inflict on
IBM.
So, if I were IBM, I'd at least give some thought about how I
could use this to turn things around. Give SCO what they claim they want, but
not the way they want it. Offer them access to the CMVC system under the
following conditions:
- IBM will provide an office in, say,
Austin, TX for one to five people (who cannot be SCO employees according to the
disclosure rules).
- This office will contain computer(s) that have read-only
access to the AIX CMVC, CMVC documentation, and available copies of the Linux
kernel source code.
- The computers in this office will not have internet
access, nor will any other computers or storage media be allowed (for security
reasons).
- The room will be monitored in any way IBM sees fit, including
videotape, keyloggers, IBM employees.
- IBM employees are not required to
answer questions, unless deposed.
- Weekly reports will be required to track
progress.
- A time limit will be imposed, say 45 days (SCO can certainly drag
out this court case that long, anyway).
Make SCO actually do the code
comparisons. Hell, I'd drop the no SCO employee stipulation for Chris Sontag.
SCO says he's an experienced software developer and RCS expert. Make Chris find
that stolen code!!
Yeah, I know its a stupid idea. I'm just getting
frustrated that SCO keeps asking for this and acting like IBM is improperly
blocking discovery.[ Reply to This | # ]
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- Nice ! - Authored by: Anonymous on Friday, December 10 2004 @ 04:21 AM EST
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Authored by: ankylosaurus on Friday, December 10 2004 @ 01:27 AM EST |
PJ quotes the document as saying:
"Mr. Gupta's declaration covers five
principal areas: 1) The UNIX Read-Copy-Update ("RCU") routines which can be
found in Linux. 2) the UNIX Inter-Process Communications ('IPC') Code was copied
into Linux; 3) Sequent employees had access to UNIX RCU and could have copied
that into Dynix, which was released into Linux; 4) the User Level
Synchronization routines of UNIX and Linux are substantially similar; and 5) the
UNIX Inter-Process Communications ('IPC') code was copied into
Linux."
Aren't items 2 and 5 evidence of SCO copying their own
discussions? I checked in the PDF, and the repetition is there too - and I've
not seen anybody else comment on this in a message headline (I've not actually
scrutinized every message; sorry!).
--- The Dinosaur with a Club at
the End of its Tail [ Reply to This | # ]
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Authored by: Anonymous on Friday, December 10 2004 @ 03:52 PM EST |
Ok, enough dickering over dubious claims & weasel wording. In order to
prevail, SCO must present actual facts, and must show that those facts are in
dispute.
In order to provide a fair and unbiased analysis of this submission I have
therefore condensed the statements in this document that can be construed as
true, or actual fact (there really are a few).
Actual facts presented by SCO:
1. SCO has filed declarations from Sontag, Gupta & Harrop.
2. Sontag, Gupta & Harrop are not testifying as experts.
3. IBM has filed for PSJ on Counterclaim 10.
4. IBM objects to SCO’s declarations.
5. Some people are confused by conflicting claims made in this case.
6. Chris Sontag works for SCO.
7. He has taken some computer science college courses.
8. He can perform mathematical calculations.
9. A kernel is a core component of an operating system.
10. Versioning systems track changes to software source code.
11. The combined source of Linux, Aix, & Unix is millions of lines of code.
12. Proving IBM infringed SCO IP is a difficult task.
13. SCO has not yet found any basis for their suit.
14. SCO wants more discovery.
15. Sandeep Gupta works for SCO.
16. He has some inconsequential experience with Unix.
17. He has looked at some Linux & Unix source code.
18. Some routines in Linux & Unix are similar.
19. Some Sequent employees had access to Unix source code.
20. John Harrop has worked on the IBM-SCO case.
21. His declaration demonstrates procedural posturing.
22. IBM has only produced what was ordered by the court.
23. SCO opposition to IBM’s motion to strike is really about their 56(f)
motion.
24. Linux development was started in 1991 by Linus Torvalds.
25. The Court has discretion in considering IBM's Motion to Strike.
Now that we have actual facts, we must decide if they are in dispute.
I seriously doubt if IBM is going to dispute any of the above.
PSJ granted.
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Authored by: StLawrence on Saturday, December 11 2004 @ 02:45 PM EST |
According to SCO's current website, here are the names of
the individuals
responsible for the management and direction
of The SCO
Group:
Darl C. McBride, President & CEO,
Director
Chris Sontag, Senior VP & GM of SCOsource
Division
Bert Young, CFO
Ryan E. Tibbetts, General
Counsel
Jeff Hunsaker, Senior VP & GM of UNIX Division
Reg
Broughton, Senior VP
Alan Raymond, VP
Ralph J. Yarro
III, Chairman of the Board
Edward E. Iacobucci,
Director
Darcy Mott, Director
Thomas P. Raimondi, Jr.,
Director
R. Duff Thompson, Director
K. Fred Skousen,
Director
Daniel W. Campbell, Director
Inquisitive Googlers are
referred to http://www.groklaw.net for
complete information on the
results of the
management and direction of these individuals.
The Internet
has a long memory.
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