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SCO Tells Media AZ Copied "Thousands" of Programs
Monday, August 15 2005 @ 05:41 PM EDT

The SCO story has been pretty much the same from day one. First, SCO executives, mainly Darl McBride, make strong but unverifiable accusations against a company to the media, after filing something with the court that puts the assertions into legalese. Then analysts say SCO may have a legitimate claim, that they were privy to a peek behind the curtain, and they are now true believers. Then the stock shoots up.

Lawsuits take a long time, so in the meantime, the allegations linger in the air, and the stock is affected by the perception that there may be something to the allegations. Some people make buckets of money.

Then SCO either drops the claim (remember the mountains of literally copied code SCO claimed to have in hand? or their now dropped trade secret claim?) or it gets whittled down to nothing by the court process (Judge Kimball's statement that he was astonished by their lack of credible evidence of copyright infringement, for example). But meanwhile some folks make money as the stock goes up. It's going up today, post all the publicity at SCOforum.

McBride, who has been quiet as a mouse for some time, suddenly was giving interviews. There is an article in Linux Planet on the recent SCOforum which follows the same pattern. In it, McBride is quoted as follows:

During the legal discovery process, SCO recently found out that AutoZone--one of its courtroom foes--has "copied thousands of programs," he charged.

Yet by now, he admitted, SCO is spending "98 percent of our resources" on new product development, and merely two percent on the three current court cases versus AutoZone, IBM, and Novell.

First off, if SCO had found anything of substance, why, pray tell, didn't they ask for a preliminary injunction, when the judge allowed them to ask for one? Instead, they are only spending 2% of their resources on the three court cases listed. Red Hat is still alive too, by the way, and SCO claims they may resurrect DaimlerChrysler some happy day, post IBM. Would a company that really believed it had a case, and SCO most particularly, hold back from getting a preliminary injunction if they thought they could win one? If they really had anything like thousands of programs of infringing code, they probably could get one, you know. Yet, they decided not to try for one.

I'm sure AutoZone attorneys will be interested to know that McBride said that. Regulars here will recall that when SCO said such things to the court, AutoZone called them on what they characterized as "material misstatements." For those who are new, and for journalists who don't have time to dig out such stuff on their own, here is what really happened.

On AutoZone, as you'll recall, the judge gave SCO a period of limited discovery, to see if they wished to bring a preliminary injunction against AutoZone, if they felt they could demonstrate the irreparable harm they claimed. They decided not to try for a preliminary injunction. That is the bottom line. Here's the SCO Report of Plaintiff The SCO Group, Inc. Regarding Discovery Pursuant to the Order of the Court Dated August 6, 2004 ", in which they made the allegations about thousands of copied programs but then said they wouldn't seek a preliminary injunction anyway. As just one example of what they found, they say they found AutoZone copied two COFF files, Compx and Decompx, "which were programs that it had licensed from a third party which contained SCO code onto all 3500 of its machines located in the United States and Mexico and has been using those files since at least January 2000."

AutoZone immediately issued a statement that the filing included "material misstatements," and they answered the filing with a Response to Plaintiff's Discovery Report, in which they tell the court that SCO was attempting to impugn AutoZone's reputation to the Court by materially overstating the nature of the alleged unauthorized copying:

SCO contends that AutoZone has copied tens of thousands "of what SCO believes to be programs containing SCO proprietary code." (SCO Report at 2.) The implication of this and similar representations in the SCO Report is that AutoZone has copied tens of thousands of SCO programs or files. In reality, the expedited discovery process revealed the existence of only a handful of unique SCO files on AutoZone's servers, and AutoZone has licenses to use virtually every one of these files.
On the Compx and Decompx programs, AutoZone licensed some code from somebody else, binaries for which AutoZone did not have the source code. They had no reason to think they were infringing in any way. AutoZone used the programs in the past, but thought it had not used either Compx or Decompx since 2003. In discovery, it found out some servers still had the two files on them after 2003, completely forgotten, but just there. Some of the programs they found when they went looking in discovery don't even run in Linux, so they couldn't use them. Some were pre-Y2K. In short, stuff nobody even knew was still there and didn't need or want to have there. You can find more examples here.

Yet, here is Mr. McBride, repeating the same story to reporters about "thousands" of copied programs. You can say pretty much anything in a court filing, without being sued for slander. It's a trick I think SCO's imitators are following too, like the idiotic Daniel Wallace pro se performance. You say any old loathsome thing, and who cares if it doesn't fly or isn't true? By the time the truth is out, months or years later, your victim is already so tarred by your allegations, they are never completely whole again. At least, that seems to be the plan, so far as I can make it out. I call it Safe Slander by Litigation.

It's not absolute safety, actually. And when you say the same thing to a journalist, or on a web site, that isn't similarly protected speech, so I wonder if this little incident will have consequences.

One other thing we learn from the article. An analyst stood up and spoke for SCO at SCOforum:

Not too long ago, "a lot of people had never even heard of SCO," observed Al Gillen, an IDC analyst.

During his own keynote at SCO Forum, Gillen predicted a future business computing environment that will revolve around PC-based virtual servers from a handful of vendors. Each virtual server will be able to manage servers and clusters based on multiple OS, according to the analyst.

A few years down the road, Linux and SCO Unix each stand a good chance of landing among "the survivors," Gillen said.

What depth of wisdom. Linux stands a good chance of surviving. As for SCO's odds of surviving, I suggest you factor in the counterclaims from IBM and Novell and then Red Hat's claims as well. It isn't just that SCO might lose their litigation against IBM and others and then they go on their merry way. There are counterclaims on the table, including patent infringement claims by IBM which target SCO's business directly.

Anyway, I thought you'd enjoy knowing that we have a new analyst for our SCO Cast of Characters. I guess Enderle couldn't make it, or wasn't asked, although likely he was there in spirit.


SCO Tells Media AZ Copied "Thousands" of Programs | 285 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: MathFox on Monday, August 15 2005 @ 05:53 PM EDT
Just in case Pamela made an error...

When people start to comment on the form of a message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

SCO Tells Media AZ Copied "Thousands" of Programs
Authored by: Groklaw Lurker on Monday, August 15 2005 @ 05:54 PM EDT
Yeah, thousands of "in-house" developed programs likely, which they
have an absolute right to copy at will...

(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

OT here
Authored by: MathFox on Monday, August 15 2005 @ 05:58 PM EDT
What would Groklaw be without Off Topic thread.
Please make links clickable by posting in HTML and post a description of the
page you link to.

When people start to comment on the form of a message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

Wallace vs. McBride
Authored by: rsteinmetz70112 on Monday, August 15 2005 @ 06:09 PM EDT
I much prefer Wallace to McBride. Wallace at least seems to have theory even if
it is goofy. He is also not using the press or the web to make wild accusations,
like McBride and some others I won't mention.

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Oh, I'd agree SCO Unix has a good chance of surviving.
Authored by: Anonymous on Monday, August 15 2005 @ 06:12 PM EDT
I mean, it's got some good points, and it's survived despite the current management. And when it gets a new owner in the bankruptcy proceedings, I can't imagine it ending up under worse management.

Beyond that, very few operating systems actually die, unless their manufacturer replaces them with a newer version. VMS and OS/2 are still alive, BeOS isn't completely dead, and AmigaOS 4.0 is under active development and coming out later this year.

So, yeah, I think the operating system will survive. SCOX, on the other hand....

(Brooks Moses)

[ Reply to This | # ]

SCO Tells Media AZ Copied "Thousands" of Programs
Authored by: Anonymous on Monday, August 15 2005 @ 06:29 PM EDT
PJ, you forgot to say that AutoZone cleaned up its mess.
And that mess was the only thing SCO was allowed to ask a Preliminary Injunction
for. AutoZone then said nothing was wrong because SCO didn't ask for a PI.
AutoZone went even so far as saying that SCO should have moved for a PI on
things that were explicitly excluded by Court to seek PI for.
I'm a bit surprised about your lack of comprehension while having all documents
at your disposal.
Before you know, people less decent then I am will use it against you, accuse
you of being biased and ridicule you again.
Don't let that happen, PJ.

[ Reply to This | # ]

if you hold your mouth just so ...
Authored by: Anonymous on Monday, August 15 2005 @ 07:07 PM EDT
there may be ever so small a grain of truth in this.

In an earlier article it was established that Autozone's CVS repository was on a
SCO box, and then moved to a Linux box. Surely there were thousands of source
files under CVS ;-)

..and if the wind is blowing the right way and you stand on one foot, 2
executables x 3500 hosts comes out as thousands of programs

[ Reply to This | # ]

SCO Tells Media AZ Copied "Thousands" of Programs
Authored by: Anonymous on Monday, August 15 2005 @ 07:20 PM EDT
I don't think Darl's nearly as likely to get into trouble for this statement as
earlier ones (which seem much more likely to be factually incorrect). Notice he
doesn't say thousands of cases of _illegal_ copying. Everyone who does backups
matches his description.

[ Reply to This | # ]

Sounds like they let Darl out for a stab at the "we really are a tech company" shtick ...
Authored by: Anonymous on Monday, August 15 2005 @ 07:29 PM EDT
... as part of their counterclaim damage-limitation exercise.

"Honestly, your honor, we're just an honest bunch of coders who genuinely
thought the whole world had ripped off our IP. Honestly."

Trouble is, Darl just can't stop himself from going into attack (bullshit) mode
whenever there's a journo sat down in front of him.

I'm sure psychologists have a name for this - like, it's a variation of
Tourette's Syndrome where people just can't stop themselves from swearing.

Entertaining for us. Not so much for SCO's lawyers, who are probably crying into
their beers right now, on reading his latest (unprotected) statements.

[ Reply to This | # ]

Actually, it looks like McB was being "honest" for once
Authored by: Anonymous on Monday, August 15 2005 @ 08:15 PM EDT
OK, it's Liar McInbredd we're talkin' about, but this time *seems* he was
honest. The reporter is the loser.

- McDimwit didn't claim the programs were copied improperly
- McJerk didn't claim they were SCOG programs either
- McMoron didn't specify a time frame, or how they were supposedly
- McCretin maybe didn't even lie about the 98% part
- The "reporter" didn't clear things up

How could all that be true?

1) The programs weren't copied improperly

2) The programs weren't / aren't SCOGs anyway. At worst, probably belong to
Novell. As testament to "competence" of SCOG programmers, the
programs wouldn't run on Linux either, despite SCOG's claim Linux is an illegal
duplicate of Unix.

AZ deleted the files. Because they were infringing? No. They had
replacements? No. Because they're *WORTHLESS*. I delete worthless files from
my systems all the time.

3) If some files, even ONE file, is copied a thousand times, McIdiot, with no
more technical brain than found in a mouse turd, would declare it to be
"thousands" of copies. Maybe one of his lackeys told him "to
backup a file, it first has to be copied from disk to memory, then from memory
to tape" (so, McDufus would count it twice). If ONE file was backed up
weekly over seven or more years (350 weeks), two "copies" per shot, it
would be almost a thousand. With just THREE worthless files, it *would* be
"thousands". So McDummy probably didn't lie about that either.

The 98% part? Well, he didn't say how *much* they have left (or not) in
resources. With lawyers prepaid, business crumbling, and the prospect they'll
have to fork over $25+ million to Novell, there may be just a few rupees left.
It wouldn't be hard to spend 98% at that point (though with McLoser's penchant
for lies, it seems unlikely, no?)

It's even possible they really ARE working on code - it's probably IBM's, torn
from handed over AIX files so SCOG can claim later they found "direct"
copies maybe, but hey, if you have to steal a bit to keep the FUD machine

What? You say it could never happen? The attorneys won't let it? Yah right.
Uh, Yarro, McBride and Tibbits? You remember Ryan, the guy with his nose so far
up Yarro's tail it's easier to just call him "Ryan Yarro" (or Ralph
Tibbits: depends on which "behind" you want to put first)? Probably
no qualms about lying, perjury, or worse, why should a bit of theft of discovery
materials be special? Puhleeezzzeeee

How can we tell McBozo wasn't lying? Well, he didn't offer "proof".
He didn't hand over some 'greeked' file text. No slides. No marksman in the
gallery either. SCOG morons are so ridiculous they are laughable now. But the
"reporter" didn't even toy with em. Maybe his mother taught him not
to play with roadkill?

McBlithering could make a lot of equally true statements, without impersonating
Benny Hill too. For example, he could say "All sheep in Lindon Utah are
happier now that 98% of our lawsuit resources prove I didn't get a single one of
them or the cow pregnant" would be as "honest". Maybe ;-)

[ Reply to This | # ]

    SCO Tells Media AZ Copied "Thousands" of Programs
    Authored by: Anonymous on Monday, August 15 2005 @ 08:21 PM EDT
    *If* AZ does have the ability to call them to account for
    this, I hope they do, Please AutoZone, nail their sorry
    hides to the wall.

    [ Reply to This | # ]

      780 days late in an Audit
      Authored by: _Arthur on Monday, August 15 2005 @ 08:39 PM EDT
      Darl should tell us how WRONG it is for Daimler to be 30 days late in an Audit.

      Then again, isn't SCO some 780 day late in their Novell audit ?


      [ Reply to This | # ]

      Copyright Infringement?
      Authored by: GLJason on Monday, August 15 2005 @ 09:15 PM EDT
      If I view a web page with copyrighted pictures (licensed for display on the web), they get stored in the browser cache. If I image the hard drive into a new computer, am I guilty of copyright infringement in those pictures? I have copied them without the author's permission, but I have done it without knowledge and have never even seen those pictures on the new computer...

      Let's see SCO try to calculate damages for unintentional copying that didn't even get used for anything...

      [ Reply to This | # ]

      SCO Translated
      Authored by: Sunny Penguin on Monday, August 15 2005 @ 09:31 PM EDT
      During the legal discovery process, SCO recently found out that AutoZone--one of
      its courtroom foes--has "copied thousands of programs," he charged.

      AutoZone used to have thousands of servers running a SCO (Not Caldera) OS; They
      copied from the install CD-ROM to the servers, notice Darl gives no date the
      "copy" happened.

      Yet by now, he admitted, SCO is spending "98 percent of our resources"
      on new product development, and merely two percent on the three current court
      cases versus AutoZone, IBM, and Novell.

      98% of Caldera's resources are now looking at IBM supplied discovery code (Third
      party engineers paid by Caldera=98% of the "New legal theory
      Development" budget)

      "Numerical superiority is of no consequence. In battle, victory will go to the
      best tactician."
      ~ George Custer (1839-1876)

      [ Reply to This | # ]

      Authored by: cmc on Tuesday, August 16 2005 @ 01:31 AM EDT
      "A few years down the road, Linux and SCO Unix each stand a good chance of landing among 'the survivors,' Gillen [an IDC analyst] said."

      Umm... Isn't this the same IDC who predicted that Intel's Itanium processor would hit $14 billion in sales in the first half of 2004? For those who didn't know, it only reached $606 million. Only off by $13.4 billion (95.67%). No big deal, right? :)     Here's the link at The Register if anyone's interested.


      [ Reply to This | # ]

      Please note that he NEVER said "Illegally copied"
      Authored by: Winter on Tuesday, August 16 2005 @ 04:03 AM EDT
      Why does everyone assume it is illegal to copy a program.

      <emotional>IT ISN'T!!!</emotional>

      I have written programs that I have copied thousands of times, and it was all

      I also used bittorrent to download a program and burned it on a DVD. That was
      all legal too (KNOPPIX 4 is great). I have even copied music from a CD to an MP3
      player. That was legal too (my own CD <legal hair splitting>not
      necessarilly where I live</legal hair splitting>).

      Darl never said AZ copied these programs illegally. You all fall for the RIAA
      and BSA propaganda (sob).


      "Intellectual Property: The legal basis for preventing anyone poorer than you
      from profiting by the ideas you stole from them." David Harmon in Bruce

      [ Reply to This | # ]

      Data for Novell, IBM & Red Hat
      Authored by: Anonymous on Tuesday, August 16 2005 @ 05:10 AM EDT
      This really belongs in the OT section but it seemed it might get drowned there. The Linux lab at MS accounding the link below (ZDNet) suggests that MS runs Linux on 200 servers at MS. There are undoubtly more than a few desktops also with Linux on them.

      The reference is by Microsoft's director of platform technology strategy (Bill Hilf) who has been there since 2003. Before Hilf arrived at MS, MS was 100% Windows.

      Recall the MS contracts for US$25 million. Lets assime for now a SCO IP licence for each at ~$500 per CPU. Lets assume that each server has 4 CPUs and each desktop has 2 CPUs. Im being generous. Lets also assume that each server serves 10 desktops - thats ~10% of all MS employees.

      Running the numbers:

      200 x 4 x 500 = 400,000

      2000 x 2 x 500 = 2,000,000

      Thats slighly less that 10% of the total MS paid to SCO supposedly for IP licences. I dont have the server details or specs for the desktops but I think these are generous but at least plausible estimates. The fixed number of desktops/servers is arbitrary but hopefully not too widely out of synch with reality. The desktop numbers here are probably on the high side for MS - but I could be wrong.

      Making one last assumption that MS paid $1000 per licence we come up with a figure that is ~20% of the $25 million. I doubt MS would accept such a figure from SCO for business reasonas but lets assume a 'sweetheart' deal for SCO here.

      Unless MS is running 50% of their employees on Linux these numbers dont add up.

      And I doubt++ that MS are running this many Linux machines.

      Why make a post out of this? This is the first time I have seen a public estimate of the number of Linux servers in use at MS. The SCO IP Licence was about Linux maachines so any such publically available data may be valuable.

      If anyone else has any additional data to add to the numbers here please post it.




      [ Reply to This | # ]

      I guess Enderle ... was there in spirit.
      Authored by: hardcode57 on Tuesday, August 16 2005 @ 07:22 AM EDT
      For that, the man would have to have a soul.

      [ Reply to This | # ]

      No Spin Zone
      Authored by: Anonymous on Tuesday, August 16 2005 @ 07:53 AM EDT
      I haven't seen a single comment by Wallace in the press since he filed his
      lawsuits. He isn't "spinning" anything.

      PJ's calling Wallace an "idiot" certainly indicates she has no
      intelligent rebuttal to his points. If his suits were shallow and without merit,
      she wouldn't have to stoop to the same spin tactics that SCO and it's ilk use.

      [ Reply to This | # ]

      Welcome back Darl!
      Authored by: RLP on Tuesday, August 16 2005 @ 09:13 AM EDT
      Hey, I've missed Darl's ridiculous hyperbolic press statements. It was getting
      boring while he was more or less keeping his trap shut, probably at the urging
      of the lawyers.

      [ Reply to This | # ]

      "We're profitable" just to avoid attachment?
      Authored by: Anonymous on Tuesday, August 16 2005 @ 09:49 AM EDT
      All the press output from SCO lately includes noises along the following lines
      "we only spend a few% of our income on litigation; our legal fees are
      capped; our Unix business is profitable".

      Is this just an attempt to avoid having their assests attached in response to
      the Novell counterclaim? In their reply, they'll be able to quote media sources
      stating that SCO is a viable, profitable company.

      [ Reply to This | # ]

      But... but... isn't that...
      Authored by: Anonymous on Tuesday, August 16 2005 @ 01:37 PM EDT
      Slander of Title?

      Be hilarious if AC came back with that one!

      [ Reply to This | # ]

      SCO Tells a little white lie
      Authored by: Anonymous on Tuesday, August 16 2005 @ 06:12 PM EDT
      You know, this reminds me of an old saying-

      There is a difference between having 25 years experience and having 1 years
      experience 25 times.

      It looks like Darrell (and his other brother Darrell) can't tell the difference
      between copying one (or two) programs a thaousand times and copying
      "thousands" of programs.

      [ Reply to This | # ]

      Dozens of nightly backups = Thousands of programs
      Authored by: dtfinch on Wednesday, August 17 2005 @ 12:58 AM EDT
      This article has made me aware that most EULA's permit only one backup. So every
      day, millions of tape drives around the world commit billions of copyright
      infringements. I suspect I may have just figured out where the BSA gets their
      piracy statistics.

      [ Reply to This | # ]

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