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SCO's Memo in Support of Motion for Reconsideration of Spoliation Order - Updated |
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Monday, April 16 2007 @ 11:05 AM EDT
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Here is SCO's Redacted Memorandum in Support of Its Motion for Reconsideration of the Order Denying SCO's Motion for Relief for IBM's Spoliation of Evidence, as text, thanks to Groklaw member
caecer. And this is the Order SCO would like Magistrate Judge Brooke Wells to reconsider, where she ruled that IBM did *not* spoliate evidence. SCO asserts that Wells misapprehended the facts, so it lays them out at length again. What it says sounds to me very much like what it told her the first time, so I'm not clear why they think this will work any better. More cases. More detail. You never know. But you're not supposed to reargue a motion, unless there really is some mistake on the part of the judge.
What came to my mind as I read it is Americans who shout at people who don't speak English and thus didn't understand them the first time. It misses a basic truth. The truth here is that you are not supposed to file motions for reconsideration unless you have a foundation for doing so, and it can't just be that you don't like the result you got the first time. This one is borderline, I'd say, at best.
So here's its motion for reconsideration. What it wants is a default judgment, that IBM be essentially inferred guilty of infringement as a sanction. I think we can agree that SCO probably can't prove significant copyright infringement, if any, using the evidence it has put on the table. SCO's trying to get IBM sanctioned, so that it wins via a back door. Again with a back door. In essence, it's arguing that maybe it could have found more evidence of specific lines of code proving methods and concepts were infringed, if only this evidence were still available to it. Therefore, the court should punish IBM and declare SCO the winner after all on a technicality. One of SCO's problems is that according to IBM, the evidence is, in fact, still available. Another is that SCO hasn't got any specific lines of code listed, that I know about, proving methods and concepts in the case. That's the other back door, also being reargued, where SCO is trying to introduce an entirely new theory of the case after discovery ended, via experts reports.
We've been through all of this before at the end of last year. SCO filed a spoliation motion back then, with media fanfare -- remember the Dan Lyons Forbes piece that ended up used as evidence, his interview with SCO lawyer Brent Hatch? (Here's IBM's memo in opposition to that motion, and SCO's reply, if you enjoy repetition.) When I reread the Lyons reference, I realized that this event is perhaps why SCO came up with the false allegations about IBM feeding me documents and the Kevin Bacon 3-degrees-of-separation-ibiblio story, to defend themselves against the very clear example of one of SCO's lawyers speaking directly to Lyons about the case after Judge Wells told the parties to tone it down. It was, as I recall, Lyons who first brought up the issue of ibiblio and the documents allegation. And then *he* ends up an exhibit. From their standpoint, it maybe didn't feel so right. So they came up with a "you're another" defense. If it causes me some headaches and some expense, who cares about that? Certainly not SCO. Here's how IBM used that Forbes interview in a discussion as to whether Wells's order was dispositive:
Despite Judge Wells' admonition about discussing this case in the press, SCO is quoted in the press criticizing Judge Wells' decision and discussing its effect. (Ex. 25.) Of particular relevance here, counsel for SCO is quoted in Forbes Magazine — only a week after filing its objections — as stating that, despite the Order, all SCO's claims and damages remain intact:
Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case.
* * *
"If the judge had thrown out the case, that would be a real downer. But the claims are still there. The damages are still there," Hatch says.
(Ex. 12.) If, as SCO says, its claims and damages remain in the case after the Order, then it could not possibly be considered dispositive. That was in IBM's Memo in Opposition to SCO's Objections to another order SCO didn't like, the Wells June 28, 2006 order. I guess it stung them, and being SCO, they decided to attack IBM unjustly to "even" the score. I'm just the drive-by victim, then, in such a scenario. On the other hand wasn't it Lyons who wrote that corporations should attack bloggers? BASH BACK. If you get attacked, dig up dirt on
your assailant and feed it to sympathetic bloggers. Discredit him.
ATTACK THE HOST. Find some copyrighted text that
a blogger has lifted from your Web site and
threaten to sue his Internet service provider
under the Digital Millennium Copyright Act. That
may prompt the ISP to shut him down. Or threaten
to drag the host into a defamation suit against
the blogger. The host isn't liable but may skip
the hassle and cut off the blogger's access
anyway. Also:Subpoena the host company, demanding
the blogger's name or Internet address.
SUE THE BLOGGER. If all else fails, you can sue
your attacker for defamation, at the risk of
getting mocked. You will have to chase him for
years to collect damages. Settle for a court
order forcing him to take down his material. Say, isn't that pretty much what has been happening to me? You think? Except instead of feeding alleged dirt to bloggers, it's been fed to mainstream media. That would seem to indicate that I am precisely the target, I'd have to conclude. Now, if I were SCO, I would call a press conference and tell them there's a conspiracy to unjustly bash me. Well. Actually, I think there is. And on that copyright DMCA "legal" advice from Lyons, I believed Diebold tried that trick and ended up paying $125,000 in damages. You probably don't want to follow legal advice from a journalist on how great it would be to file false accusations. And stop and think in a First Amendment context for a second. Suppose a journalist, say one at Forbes, wrote a piece about, say, HP. HP, let's say, didn't like it, so it hired detectives to try to dig up some dirt on the journalist to feed it to the media and/or threatened Forbes with a DMCA takedown. Starting to see the implications? Don't these people have any respect for the Constitution? The press? Human dignity? Fair play? I could go on, but I think you catch my drift. Update: It seems Mr. Lyons has abandoned Floating Point, his attack-PJ-and-Groklaw blog, at least on WordPress, as he relates in this Forbes piece:
I've also operated a blog on a third system called WordPress. WordPress is an open-source program, meaning it's created by volunteers and anyone can read, copy and hack at the program's underlying source code. WordPress is free, and it's fairly easy to get started. But it is not so easy to figure out how to use the software. Techie types love WordPress because supposedly you can make it do whatever you want, if you know what you're doing. Which I, um, don't. Even posting photos--which in every other program is a brainless procedure--could be a pain in the neck on WordPress.
There is a help button, but it takes you to an almost impossible to navigate list of frequently asked questions. In frustration I ordered a manual called WordPress 2 Visual QuickStart Guide. But when the book arrived, I just sat there looking at it and then abandoned my WordPress blog. I'd call that the alibi article, personally. Here's a Declaration of Todd Shaughnessy in support of IBM. And here's the hearing held in January. Man, it's getting so complicated to give you the context nowadays, because SCO is doing everything twice lately. It is losing, and it would rather not, I gather. If you would like to see a more normal spoliation motion and a judge's explanation of the elements of a successful one, here you go. By normal, I mean somebody actually did something wrong. And here's part of why SCO wants to win this motion, laid out plainly. What is SCO's purported basis for this motion? It claims the Magistrate Judge misunderstood the facts. She held that whatever evidence was erased is still available in CMVC and RCS, the code change control systems for AIX and Dynix/ptx respectively. Not so, says SCO. We wanted the early *drafts* of Linux code, the stuff that didn't make it into CMVC (Linux code doesn't go into CMVC), and we wanted to know which programmers retained some AIX and Dynix code in their sandboxes, so we could show that the programmers referred to AIX and Dynix when they transitioned to doing Linux code. (Question to SCO: Does Linux code compile in an AIX sandbox?) Yes, my friends, we are back to methods and concepts, which to date are not even in this litigation. But that's another ruling SCO is trying to get reversed. All very serpentine. If SCO had eggs, it could make ham and eggs. If it had ham. Here's what IBM's attorney Todd Shaughnessy told the court at the hearing, as related by one of Groklaw's reporters at the hearing: Shaugnessy described the IBM (management) meeting in 2003 which preceeded the cited email. IBM was starting a specific project related to Linux on PowerPC on which eight former AIX developers would be working. In that meeting a question was asked if those eight developers still had access to AIX's CMVC (which access would not be needed for the new project). It was determined that they did not, but perhaps they still had AIX sandboxes, but they didn't know. After that meeting, the email was sent.
He said that SCO has not identified any code from that project that was an improper contribution to Linux. SCO has not identified any lines of code from any of these eight developers. These developers were writing new, original, code unrelated to any of SCO's claims. The only AIX code identified as misused is JFS, completely unrelated to these developers' project.
Shaughnessy provided a copy of the deposition of Dr. Frye to Judge Wells and referred to it. He indicates that during his deposition Dr. Frye stated six seperate times that nothing was destroyed. Even SCO's deposition lawyer characterized Dr. Frye's testimony as that nothing was destroyed. He said that SCO has to demonstrate bad faith and SCO's briefs offer nothing to demonstrate it.
Shaughnessy said SCO's original claim in this motion was that IBM destroyed code. We see, and SCO now concedes, none was destroyed. Now SCO's theory is that they don't know what code the developers had access to. If SCO *really* wanted to know what code the developers had, they could have looked up the names of people in the LTC (provided by IBM) turned on the CMVC machine they've had for over two years in their office and see what code they checked out. But they didn't. SCO's lawyer at that hearing argued pretty much the same thing that SCO argues here, to my eyes, that while source code is available, what SCO wanted was information on who had what code and when: James replied for SCO and cited Judge Steward, Adams v. Gateway case, that "bad faith is not generally required... in order to find spoliation" (other than bad inference). Here we have an email talking about destruction of evidence, he said. It's clear from the deposition that the instruction was given. James reiterated his opening comments and claimed that CMVC does not provide information on who had what code and when, that it only shows the source code. SCO argued this back then, but their view is that Wells just didn't understand it properly, so it's once around the mulberry bush again. I guess you could stretch the "misapprehension of the facts" standard as covering this. They are saying the judge just didn't get it. It's very possible she did, though, that she heard their argument, understood it perfectly, and didn't accept it. Since there is no code in this case tracing to these particular coders in the litigation, what does it have to do with the price of tea in China? And just maybe she noticed that the alleged deed was done back in the spring of 2003, and SCO apparently took no great steps to find the evidence in any way during discovery other than that Frye deposition, and then brought a motion for spoliation instead in 2007. Things that make judges go hmm. SCO does tell a tale of not really knowing about it in full or something. After a while my brain gets tired explaining SCO's thinking. I don't mean that the motion is necessarily hopeless, just that it ought to be, in a just universe. IBM has told the court that the Linux Technology Center programmers don't use sandboxes, but AIX guys do. That is impossible, SCO argues. They all *must* use sandboxes, although there is no evidence to support that supposition offered. And IBM says they don't. That is the kind of thing that SCO could and should have pursued in discovery, but instead it has its experts opining that most people use sandboxes, as if that proves anything here. That's not evidence to me. If you are going to call someone a liar in a court of law, you do need some evidence. SCO says the special project was for Linux, and they were told to clean out their sandboxes, so they must use them. Um. OK. But they were not LTC programmers. It was a special project for PowerPC. And they were AIX guys who *would* have sandboxes, and that is what they were told to clean out, not Linux sandboxes, and anyway, most of them apparently didn't do it anyhow. So... Then it argues that the evidence it can't now get is what a programmer on that special project might have retained. So, why didn't SCO just ask them? That is what discovery is for. Well, it did depose one of them, who testified, IBM explained at the hearing, six times that no evidence was destroyed. One of SCO's experts compares the sandboxes to an auto body shop. Someone steals a car, strips it of various components and then repaints it, puts in new upholstery, etc., and that makes it hard to identify it as the stolen car. I gather AIX and Dynix/ptx are the stolen car, the auto body shop is the sandboxes at IBM, in SCO's mind anyway, and the new upholstered vehicle is Linux. This development fantasy of SCO's is very enduring. So much of this case is about what SCO thinks must somehow be true, like Linux couldn't happen so fast without Unix code or I must be a committeee of IBM lawyers. SCO's methods and concepts ladder theory is like that. Somewhere, in a universe far, far away, it *could* have happened like this. SCO just can't put its finger on it, so it concludes IBM must be at fault somehow. But if SCO wanted to prove it, why didn't they just depose people, or ask for the computers and do forensics? It's puzzling. And since the only code from IBM in this litigation is JFS, which isn't what the special project guys were working on, the auto body analogy hits the wall and bursts into flames. Maybe you'll read it differently. I know. SCO hopes its other motions for reconsideration/objections/motions to amend will somehow get all their methods and concepts material into the litigation. I doubt that will happen, so this is all kind of moot. But it must take a special kind of IBM patience to carefully answer each and every SCO allegation, which seem to be like the widow's oil that just kept pouring and pouring, without any apparent limit. It drives me bananas just reading the filings. Imagine having to answer them. And the ultimate reason why you are not supposed to ask for reconsideration just to get another bite at the apple is because it's not fair. Think about motion practice. You follow the ABA format. SCO files the motion, IBM puts in a memo in opposition, then SCO replies. So if you do a motion for reconsideration that reargues the same points, in effect you have SCO speaking 4 times, and IBM only gets to speak twice. Also after the initial motion is argued, you find out all the arguments the other side presented, and so if you get to reargue the same points, you will do better, of course. It becomes your better version, extended from the original, and that is fundamentally unfair. In fact, SCO does a better job here than in the first motion that was denied. Naturally, it would, and that is no doubt part of the strategy. There is, as usual, no "fair and square" in this picture, not that I can discern, just another throw-it-at-the-wall-and-see-if-it-sticks motion, which requires IBM to go to the time, effort and expense of responding. And as with any motion, you can never totally guarantee that bad things won't happen. I have no doubt that IBM is taking the new cases and arguments seriously, as it must in order to answer it carefully, leaving no stone unturned.
***************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The ScO Group, Inc.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff. |
SCO'S MEMORANDUM IN
SUPPORT OF ITS MOTION FOR
RECONSIDERATION OF THE
ORDER DENYING SCO'S MOTION
FOR RELIEF FOR IBM'S
SPOLIATION OF EVIDENCE
FILED IN REDACTED FORM
[ORIGINALLY FILED UNDER SEAL]
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells |
TABLE OF CONTENTS
Page |
PRELIMINARY STATEMENT |
1 |
ARGUMENT |
3 |
I. |
RECONSIDERATION IS WARRANTED WHERE THERE IS A
MISAPPREHENSION OF FACTS OR CONTROLLING LAW |
3 |
II. |
CMVC DOES NOT CONTAIN THE EVIDENCE THAT SCO CONTENDS
IBM DESTROYED. |
3 |
|
A. |
IBM's Representation That Sandboxes Are Only
Used by AIX Developers Is False. |
4 |
|
B. |
IBM's Representation That CMVC Contains the Same Evidence As
the Sandboxes Is False. |
7 |
|
C. |
SCO's Claims Regarding Evidence Lost in the Sandbox Purge Are
Consistent with Statements Made by SCO When it Moved to Compel
Production of CMVC. |
11 |
|
D. |
IBM Has Not Followed Though on The Magistrate Court's
Request to Identify Where in CMVC the Evidence SCO Contends Was
Destroyed Can Be Found. |
12 |
III. |
SCO HAS SUBMITTED COMPELLING PROOF THAT DESTRUCTION
OF RELEVANT EVIDENCE OCCURRED. |
13 |
IV. |
SCO WAS PREJUDICED BY IBM'S DESTRUCTION OF EVIDENCE. |
16 |
V. |
SCO SHOWED THAT IBM ACTED IN BAD FAITH |
19 |
CONCLUSION |
23 |
i
TABLE OF AUTHORITIES
Page |
Cases |
Adams v. Gateway, Inc.,
2006 WL 2563418 (D. Utah 2006) |
21 |
Brown & Williamson Tobacco corp. v. Jacobson,
644 F. Supp. 1240 (N.D. Ill. 1986) |
21 |
Brown & Williamson Tobacco Corp. v. Jacobson,
827 F.2d 1119 (7th Cir. 1987) |
21 |
Cabinetware, Inc. v. Sullivan,
Civ. S. 90-313, LKK 1991 WL 327959 (E.D. Cal. 1991) |
18,19 |
Computer Associates Int'l, Inc. v. Am. Fundware, Inc.,
133 F.R.D. 166 (D. Colo. 1990) |
21 |
Hancock v. City of Oklahoma City,
857 F.2d 1394 (10th Cir. 1998) |
3 |
In re Napster, Inc. Copyright Litig.,
462 F. Supp. 2d 1060 (N.D. Cal. 2006) |
21 |
Mantle Ranches, Inc., v. U.S. Park Serv.,
950 F. Supp. 299 (D.Colo. 1997) |
3 |
Price v. Philpot,
420 F.3d 1158 (10th Cir. 2005) |
3 |
Servants of the Paraclete v. Does,
204 F.3d 1005 (10th Cir. 2000) |
3 |
United States v. Maxfield,
No. 04CR00149, 2007 WL 121128, at *1 |
3 |
ii
Plaintiff, The SCO Group, Inc. ("SCO"), by and through undersigned
counsel, submits
this Memorandum in Support of its Motion for Reconsideration of the
Order Denying SCO's
Motion for Relief for IBM's Spoliation of Evidence.
PRELIMINARY STATEMENT
The Magistrate Court denied SCO's Motion for Relief for IBM's
Spoliation of Evidence
"for the reasons set forth by the Court at the hearing held on January
18, 2007." (March 2, 2007
Order.) At the January 18 hearing, the Magistrate Court said:
I am going to find that based upon the evidence before me,
as it's
put into context, reflects that SCO's motion will be denied. It
cannot show that any evidence was lost or destroyed. In fact, I
find that it is available and has been available through CMVC.
The evidence before me, when seen in context, does not show that
IBM acted in bad faith nor does the evidence show that it has been
prejudiced because the evidence, as I indicated, has been and is
reasonably available. So the motion regarding spoliation and the
adverse inference instruction will be denied.
(1/18/07 Hrg. Tr., Ex. 1 at 56:2-11.)
SCO respectfully submits that this decision was based on a
misapprehension of fact and
law, and should be reconsidered on the following grounds:
First, the primary basis for the ruling — that the
evidence SCO contends IBM destroyed
"is available and has been available through CMVC" — is not
correct. IBM's representations at
the January 18 hearing in this regard are false. Neither CMVC (the AIX
change control system
referenced by the Magistrate Court) nor RCS (the Dynix/ptx change
control system) contains the
evidence SCO contends IBM destroyed.1
CMVC and RCS could not possibly show whether that code
1
had been retained on programmers' systems when they transitioned to
work on Linux, or
what particular subparts or versions of the operating system had
been retained by the
programmer. Furthermore, those systems could not possibly contain drafts
of Linux code.
Second, SCO submitted substantial proof in the form of IBM
executive and programmer
emails and deposition testimony that IBM destroyed relevant evidence,
and that evidence should
be reconsidered now that SCO has shown that the destroyed evidence was
not available
elsewhere.
Third, the Court's finding that SCO was not prejudiced was
based on the mistaken
conclusion that the evidence was still available to SCO elsewhere. In
reality, the evidence
destroyed by IBM was not available to SCO in CMVC or RCS. In addition,
the evidence
destroyed is directly relevant to SCO's claim that IBM's Linux
programmers referred to AIX and
Dynix/ptx code while programming for Linux and to SCO's efforts to
identify the AIX and
Dynix/ptx source code behind IBM's disclosures to Linux, including IBM's
numerous
disclosures of methods and concepts.
Fourth, the Court's finding that IBM did not act in bad faith,
for purposes of the adverse
inference instruction requested by SCO, was also based on the mistaken
conclusion that the
evidence was still available to SCO elsewhere. In fact, SCO has shown
that IBM directed that
highly relevant and original evidence be destroyed just a
month
after the instant lawsuit was
filed. Bad faith must be inferred from this conduct.
2
ARGUMENT
I. RECONSIDERATION IS WARRANTED WHERE THERE IS A
MISAPPREHENSION OF FACTS OR CONTROLLING LAW.
Reconsideration is warranted "where the court has misapprehended the
facts, a party's
position, or the controlling law." Servants of the Paraclete v.
Does,
204 F.3d 1005, 1012 (10th
Cir. 2000). Neither a change in law nor new evidence is required.
See, e.g.,
Mantle Ranches, Inc., v.
U.S. Park Serv., 950 F. Supp. 299, 300, 302 (D. Colo. 1997)
(granting in part motion to
reconsider, though no change in law or new evidence existed). A district
court has the discretion
to reconsider any "order short of a final decree." Price v.
Philpot, 420 F.3d 1158,
1167 n.9 (10th
Cir. 2005). The consideration of the merits of a motion for
reconsideration is squarely within
that discretion. See United States v. Maxfield, No.
04CR00149, 2007 WL 121128,
at *1 (Ex. A)
(D. Utah Jan. 11, 2007) (citing Hancock v. City of Oklahoma
City,
857 F.2d 1394,1395 (10th
Cir. 1998).
IBM previously sought relief through a Motion for Reconsideration
before this Court in
similar circumstances (in a February 11, 2005 motion), and such relief
was granted in part (in an
April 20, 2005 order). Accordingly, it is well within the discretion of
the Magistrate Court to
reconsider the denial of SCO's Motion for Relief for IBM's Spoliation of
Evidence on the
grounds raised herein.
II. CMVC AND RCS DO NOT CONTATN THE EVIDENCE THAT SCO
CONTENDS IBM DESTROYED.
Contrary to IBM's representations at the January 18 hearing, the
evidence that SCO
contends IBM destroyed in programmer sandboxes is not available. At the
hearing, IBM made
the following representations to support its contention that, if IBM
Linux Technology Center
3
("LTC") programmers were in fact instructed to purge their sandboxes
or other computer
workspaces, no evidence was actually destroyed: (1) sandboxes are only
used by AIX
developers, not by IBM's Linux developers; (2) the CMVC system contains
the same evidence
that SCO contends was destroyed in the purging of programmer sandboxes;
and (3) SCO had
previously said CMVC had this evidence. The Magistrate Court ultimately
adopted these
representations as a core element of the decision, finding that the
evidence SCO contends was
destroyed "is available and has been available through CMVC." Yet, each
of these IBM
representations is false, for the reasons set forth below.
Considering the importance of IBM's representations, moreover, the
Magistrate Court
directed IBM to assist SCO in identifying in CMVC where the duplicate
evidence could be
found — that is, the evidence lost in the purging of the
programmer sandboxes.
IBM has not done
this, and SCO contends that it cannot be done: Neither CMVC nor RCS
contain the evidence
that was destroyed in the purging of the programmer sandboxes. The
following evidence thus
underscores the reasons IBM did not follow up on the request that the
Magistrate Court made.
A. IBM's Representation That Sandboxes Are Only Used by AlX
Developers Is
False.
Sandbox is a term used to describe private computer workspaces in
which programmers
can draft and test code on which they are working without impacting the
entire system. At the
hearing, IBM made the following representation to the Court: "Sandboxes,
Your Honor, are a
development tool that is used in AIX. They are not used in Linux. They
are not used in the
Linux Technology Center." (Ex. 1 at 37:7-9.) This IBM argument overlooks
the facts that the
instruction was given to Linux programmers to purge their
sandboxes.
This instruction would
4
have made no sense if, as IBM suggests, Linux programmers did not
have or use sandboxes.
Moreover, also contrary to IBM's representation, those sandboxes or
other similar workspaces
would have had to have been used by those programmers to develop
their code for Linux.
Indeed, IBM's representation that its Linux programmers did not use
sandboxes is
contradicted by a public interview given by one of IBM's own
programmers. (Ex. 2,
http://kerneltrap.org/comment/rep1y/80 .) IBM programmer William Lee
Irwin III explained that
he had been employed by Sequent and IBM since 2000, and that he worked
on Dynix/ptx, then
AIX, and then Linux. When asked whether he had "any tips for the
aspiring kernel hacker"
(Linux programmer), Mr. Irwin responded:
A more effective approach appears to be creating a
sandbox where
the data is disposable and the system nonessential and running the
code and figuring out what went wrong when the system
crashes.
(Id.) Directly contrary to IBM's representations, this IBM
Linux programmer shared his
experience on using sandboxes when developing for Linux and
advised others to do
the same.2
SCO's computer science expert Marc Rochkind has also confirmed that
"IBM
programmers for Dynix/ptx and Linux, as well as AIX, would have had to
use sandboxes, or
other similar workspaces, to draft, revise and implement computer code
for those systems."
(Declaration of Marc Rochkind dated 3/16/07 ("Rochkind Decl."), ¶
8.) He explains:
[I]t would be incredibly difficult, if not impossible, to
write and
revise computer code without using a separate workspace, such as
a sandbox, in which to implement and test those revisions. It is
essential that all details of a proposed operating feature or patch be
worked out in an environment separate from the online or
official
5
copy of the source code. This separate environment, the
private
programmer workspace, is often called a sandbox.
(Id. ¶ 7.)
SCO's computer science expert Evan Ivie has also confirmed that "IBM
programmers for
Dynix/ptx and Linux, as well as AIX, used sandboxes, or other similar
workspaces or
programming environments, to draft, revise and implement computer
software for those
systems." He explains:
Any creative process requires an environment and facility
where
that creative process can take place. An artist creates paintings in
a studio. A woodcarver creates carvings in a woodshop. Artisans,
craftsmen, and skilled workers develop facilities where they can
perfom their work: workbenches, body shops, bakeries, etc.
Programmers are no different.
* * *
If IBM had not adopted and/or developed some type of suitable
environment for their programmers, it would have taken them back
to the late 1950's and early 1960's and would have made
programming an incredibly inefficient and slow process. This
would be like taking a tractor away from a farmer and giving him a
shovel. Even if IBM had tried it, programmers would have
resisted the move.
(Declaration of Dr. Evan Ivie dated 3/16/07, "Ivie Decl.", ¶ 2
and
¶ 5 respectively.)
Accordingly, IBM's argument that sandboxes are not used in Linux
makes no
sense and cannot not somehow amend its instruction to its Linux
programmers to purge
their sandboxes. That instruction would have impacted all IBM
programmers working in
the LTC.
6
B. IBM's Representation That CMVC Contains the Same Evidence As the
Sandboxes Is False.
At the hearing, IBM further argued that ihe evidence that had been
in the purged
sandboxes was still available to SCO on the CMVC system that IBM had
produced to SCO.
IBM made the following representations at the hearing regarding the CMVC
system it produced
to SCO:
Now [SCO's] premise is, well, we may not have lost source
code,
but what we lost is the ability no figure out which particular
programmers had looked at or had access to which particular AIX
or Dynix source code. That Your Honor, is wrong. SCO has that
information in spades. Precisely as you pointed out that was the
purpose of producing CMVC. If SCO really cared, if SCO really
wanted to know what code a particular developer had on their
machine, it would be a very simple exercise to find out. SCO
could have easily taken the list of individuals we provided of
people who made contributions to AIX and Dynix and compared it
to anyone of the other lists we provided them that identified people
who made Linux contributions or who worked in the LTC and
could have determined if any names were the same. Having
determined that names were the same, SCO could have but chose
not to turn the [CMVC] machine on and look at it. Because had
they done so, they would have been able to figure out exactly what
developer X looked at and when, what was checked out, when it
was checked out, and what developer X did to it.
(Ex. 1 at 45:13-46:8.) IBM further represented that destruction of
evidence in a sandbox was "a
bit like Your Honor having discarded a courtesy copy of a motion you
ruled on a year ago
knowing that Matt has a copy." (Id. at 35:23-25.)
This is simply not accurate. Fundamentally, code on CMVC or RCS is
not a copy of
code in programmer sandboxes. The type of evidence found in CMVC or RCS
is entirely
different from what would be on a programmer sandbox. While IBM has
contended that a
change management control system, such CMVC or RCS, shows what code had
been "checked
7
out" by programmers, those systems could not possibly show whether
that code had been
retained on programmers systems when they transitioned to work on Linux,
or what particular
subparts or versions of the operating system had been retained by
the programmer. The specific
AIX or Dynix/ptx code that a Linux programmer chose to retain on his
system while
programming for Linux would have provided important evidence in that SCO
could compare
that particular code to the programmers' Linux disclosures. The fact
that some code the
programmer chose to retain on his system might be duplicated
somewhere on a code repository
entirely misses the point.
SCO's computer science experts Marc Rochkind and Evan Ivie have
confirmed the
impossibility of CMVC or RCS containing the evidence IBM now claims they
do. Mr.
Rochkind explains:
[N]either CMVC (as to AIX) nor RCS (as to Dynix/ptx)
would show whether Linux programmers had retained AIX and
Dynix/ptx on their systems when developing code for Linux, and if
so, what parts of the AIX and Dynix/ptx operating systems they
retained.
[A] sandbox is the only place where the progression of
code drafts can be viewed. For AIX code, CMVC shows the initial
code that was checked out, and the final code that was checked
back in, but not all the steps in between. The RCS system for
Dynix/ptx provides even fewer details than CMVC. Yet it is these
steps, these intermediate drafts, — saved only on programmers'
sandboxes — that would have been so important to develop further
proof of IBM's copying.
(Rochkind Decl. ¶¶ 12-13.) Similarly, Dr. Ivie explains:
There are several fundamental flaws in the use [of] a
change control system, such as CMVC or RCS, to track a software
development effort. A typical change control system allows a
programmer to "check out" a module, to modify and test it
for
8
some unspecified amount of time, and then when satisfied to
"check it back in" to the system. Perhaps this might be compared
to trying to see what is going on in a darkened room with a strobe
light. However, the strobe only illuminates a small part of the
room (the code checked in and out) and the strobe is controlled by
a programmer who may or may not want you to see all that is
going on (visibility only at check-in time).
For example, let us assume that the programmer is
developing a module for Linux, but is basing it on a module that
comes from a contractually-protected operating system owned by
another company. If the only visibility that we have is the module
after it has been appropriately disguised, then tracing the source
becomes much more difficult. Perhaps one could compare this to a
body shop for processing stolen cars. It is much easier to prove
auto theft if one can find the body shop being used. After a paint
job, changes to upholstery, options, accessories, and careful
modification of the engine and body numbers, it is much more
difficult to identify the theft.
(Ivie Decl. ¶¶ 8-9).
Using another analogy, Mr. Rochkind explains that CMVC is like a
library, and the AIX
files in CMVC (or Dynix files in RCS) are like books in a library.
(Rochkind Decl. ¶ 14.) Just
as a library has records of which books have been checked out, when they
were checked out,
who checked the books out, and when they were checked back in, a change
management control
system like CMVC or RCS might have records of which files in AIX or
Dynix/ptx were checked
out, when they were checked out, who checked them out, and when they
were checked back in.
(Id. ¶14.)
What a library does not record, and could not record,
is what was
done with the books
during the time they were checked out. The records in a library will not
show: whether the pages
of book were copied while the book was checked out; whether the reader
retained pages he
copied from the book he checked out long after checking the book back
in; whether the reader
9
later used those pages to write another book; or what the progression
of drafts of the readers'
other book looked like, such as whether the first drafts were similar to
the library book he had
copied, and then became progressively dissimilar. (Id. ¶
15.)
Similarly, Mr. Rochkind explains, none of this information is
present in CMVC or RCS.
(Id. ¶ 16.) Like a library system, CMVC and RCS do not show
what the programmers
did with
the AIX or Dynix/ptx files on their systems (their "sandboxes") after
they checked them out, or
even after they checked them back into CMVC or RCS. Specifically; CMVC
and RCS do not
show: whether the AIX or Dynix/ptx files were copied or saved to the
programmers' system
after being checked out; whether the programmer retained the copied AIX
or Dynix/ptx files on
his system long after checking the completed files back into CMVC;
whether the programmer
ever referred back to those AIX or Dynix/ptx files when he was
developing for another operating
system, such as Linux; what the progression of drafts of the
programmers' code for the other
operating system, such as Linux, looked like — whether the first
drafts were
similar to the AIX or
Dynix/ptx files he had copied and retained on his system, and then
became progressively
dissimilar, until the final version actually bore little resemblance to
the AIX or Dynix/ptx files on
which it had been based; or whether other programmers made use of the
checked-out code by
obtaining it in already-checked-out form from the programmer who
originally checked it out and
saving it to their sandboxes. (Id. ¶ 16).
In contrast, Mr. Rochkind and Dr. Ivie explain, a programmers'
sandbox would show all
of this information. (Id. ¶ 17; Ivie Decl. ¶ 12.)
It would show whether AIX and Dynix/ptx files
were present and available to the programmer as he worked on Linux, and
if so, which particular
code the programmer retained and accessed. It would also show his
initial
drafts of code and the
10
progression of drafts after that initial draft,
leading to the final version. Plainly, drafts of Linux
code would not be available on CMVC or RCS.
In summary, CMVC and RCS simply would not and could not contain the
evidence that
would have been available on IBM Linux programmer sandboxes or other
private computer
work spaces.
C. SCO's Claims Regarding Evidence Lost in the Sandbox Purge Are
Consistent with Statements Made by SCO When It Moved to Compel
Production of CMVC.
At the January 18 hearing, the issue also arose whether SCO, in
moving to compel IBM
to produce the CMVC system, had previously stated that CMVC contained
the same information
SCO now contends was destroyed in the purging of programmer sandboxes.
Specifically, at the
hearing, the Magistrate Court noted that counsel for SCO had in February
2004 represented that
the CMVC system would enable SCO to "get every version, every iteration
[of AIX]" and that
counsel further stated that a confidential IBM document regarding CMVC
"gives a simplified
description at the bottom saying what it boils down to is that all
levels of all files are
stored on a
central server and are available for updating by those with proper
authority." (Ex. 1 at 29:17-
20.)3
SCO correctly represented at that February 2004 hearing that CMVC
contained
information that was important to the development of SCO's case as to
IBM's misuse of AIX
technology in Linux. SCO did not represent that such information
was coterminous with the
information SCO now contends IBM destroyed in programmer sandboxes. SCO
counsel never
contended in 2004 that CMVC or RCS would show which Linux
programmers retained AIX or
11
Dynix/ptx code on their systems when programming for Linux, or what
particular code they
retained. SCO counsel also plainly never contended in 2004 that
CMVC or RCS would have had
drafts of Linux code. Thus, SCO's prior representations regarding
CMVC or RCS have no
relevance to SCO's contention in the instant motion that the purging of
programmer sandboxes
destroyed relevant evidence.
In connection with this issue, IBM also repeatedly said at the
hearing that SCO must not
have even used the CMVC system that was produced — implying that
SCO would not know
whether it contained the information SCO contends was destroyed in the
purging of programmer
sandboxes. IBM stated that "it appears that SCO has done absolutely
nothing with CMVC," and
"SCO could have but chose not to turn the [CMVC] machine on and look at
it." (Ex. 1 at 34:24-
25 and 46:3-4, respectively.) These statements are baseless. SCO did use
CMVC extensively.
At his deposition, Marc Rochkiid clearly testified: "My analysis of AIX,
as I say in my report,
was based on the CMV — CMVC system that was provided by IBM in the
form of an actual
physical computer, and all of my access to AIX source during the period
when I was preparing
my original report came off of that system." (Ex. 4 at 242:3-8.) Mr.
Rochkind further explained
in his declaration his extensive use of CMVC to identify material
misused by IBM. (Rochkind
Decl. ¶ 3.) Nevertheless, as set forth above, neither CMVC nor RCS
is a substitute for the
evidence that would have been contained in the programmer sandboxes.
D. IBM Has Not Followed Through on the Magistrate Court's
Request to
Identify Where in CMVC the Evidence SCO Contends Was Destroyed Can
Be Found.
Considering the representations that IBM made regarding the
availability of evidence on
CMVC, the Magistrate Court asked IBM to assist SCO in locating the
evidence in CMVC that
12
SCO contends was destroyed by virtue of the instruction to purge
programmer sandboxes.
Specifically, the Magistrate Court directed:
The standard I think is reasonably available. I am going
to ask
IBM, in the spirit of cooperation, Mr. Shaughnessy, to do what you
can or have others do it to see if you can assist in identifying it.
That doesn't mean that anything is going to change in terms of the
deadlines and the scheduling order cutoffs. But if there is
somebody who readily has that information, I would ask you to
assist in doing that.
(Ex. 1 at 58:ll-18.) Notwithstanding this request by the Magistrate
Court, and the clear
importance of IBM's representations on this regard to the Magistrate
Court's conclusions, IBM
has not taken any steps to assist SCO in identifying in CMVC (or RCS)
the evidence SCO
contends was destroyed. IBM's inaction in this regard speaks volumes
about the very
representations that were so central to the Magistrate Court's
conclusions. Moreover, SCO has
submitted the clear evidence discussed above that plainly rebuts IBM's
representations. CMVC
and RCS — while useful for many purposes — simply do not
show the particular AIX or
Dynix/ptx files that Linux programmers' systems retained on their
systems after they began
programing for Linux, and do not contain intermediate drafts of Linux
code.
III. SCO HAS SUBMITTED COMPELLING PROOF THAT DESTRUCTION OF
RELEVANT EVIDENCE OCCURRED.
SCO submitted substantial proof in the form of IBM executive and
programmer emails
and deposition testimony that IBM destroyed relevant evidence, and that
evidence should be
fully considered since SCO has established that the destroyed evidence
was not available
elsewhere:
13
Swanberg Email On April 8, 2003 — one month after SCO's
lawsuit was filed and
shortly after the decision to restrict access to AIX and Dynix/ptx
source code had been made —
Randal Swanberg, a senior IBM executive, sent the following email to IBM
managers and team
leaders relaying additional instructions:
REDACTED
(Ex. 5.)
Daniel Frye Deposition Testimony: The decision described in
the Swanberg email was
then carried out more broadly within IBM. Daniel Frye instructed Linux
programmers within
IBM's LTC to "purge" or "delete" AIX and Dynix/ptx source code from
their local machines
and sandboxes. Dan Frye testified:
REDACTED
14
(Ex. 6 at 92:lO-93:l (emphasis added).) In short, programmers within
the LTC, who had
previously had access to AIX and Dynix/ptx code, and who had had that
access removed, were
then further instructed to purge or delete all such code
from their machines
and to purge and
delete the contents of their sandboxes.
Paul McKenney Testimony: Linux programmer (and former
Dynix/ptx programmer)
Paul McKenney confirmed that he deleted Dynix/ptx source code from his
machine in response
to such an instruction. He testified:
REDACTED4
15
REDACTED5
In short, Mr.
McKenney confirmed that he followed the directive of the OSSC and Dan
Frye, and deleted code
from his computer following SCO's lawsuit.
IV. SCO WAS PREJUDICED BY IBM'S DESTRUCTION OF EVIDENCE.
The Magistrate Court's finding that SCO was not prejudiced was based
on the mistaken
conclusion that the evidence was still available to SCO. Because SCO has
shown the destroyed
evidence is in fact not available on CMVC or RCS, SCO asks that this
conclusion be
reconsidered. The evidence destroyed by IBM is highly probative to SCO's
claims and its
destruction creates clear prejudice.
The presence of AIX and Dynix/ptx code in the sandboxes of
programmers in IBM's
LTC — at their very fingertips — would have further refuted
IBM's ongoing assertion that its LTC
programmers did not access or rely on Dynix/ptx and AIX source code when
they were
programming code for Linux. Moreover, the particular subparts and
version of the Dynix/ptx or
AIX operating systems that the programmer chose to retain would have
enabled SCO to provide
more specific identification of the AIX or Dynix/ptx code on which the
programmers' Linux
disclosures was based. Finally, intermediate drafts of Linux code from
the sandboxes would
have most clearly demonstrated the progression of code from the initial
AIX or Dynix/ptx code
on the sandbox to the final code that was ultimately disclosed to Linux.
Mr. Rochkind has
explained this prejudice: "Even by reviewing only the final
contributions of code to Linux, I
identified a significant instance of AIX code in Linux and multiple
instances of Dynix/ptx code
16
in Linux. The availability of drafts from sandboxes would have shown
whether even more
instances of direct copying existed." (Rochkind Decl. ¶ 18.) Dr.
Ivie concurred.
(Ivie Decl. ¶ 15.)
The prejudice to SCO from this destruction is particularly
severe in light of the fact that
Dynix/ptx methods and concepts improperly disclosed to Linux were
stricken from SCO's case
because SCO was not able to identify the Dynix/ptx source code behind
the methods and
concepts with more specificity. This is because the source code
deleted from Linux programmer
sandboxes would have substantially helped SCO identify the specific
Dynix/ptx source code
behind these methods and concepts. By showing what Dynix/ptx code
IBM Linux programmers
had at their fingertips, the sandboxes or similar workspaces (if they
had not been purged) could
have substantially narrowed the scope of code that SCO had to review to
determine what
particular code the progmmmer had in his mind when he disclosed the
method and concept to
Linux. This would have made that process of identification of code
underlying methods and
concepts significantly more practicable. Thus, IBM's destruction of this
sandbox evidence is
particularly prejudicial to SCO in light of the June 28, 2006 Order
striking Dynix/ptx methods
and concepts from SCO's case (affirmed in November 2006, pending a
motion for
reconsideration).
An excellent example of this (just one example of many) is the IBM
programmer Mr.
Irwin. SCO identified Mr. Irwin as making improper disclosures to Linux
in Item Numbers 38,
167, 171, 172, 175 of SCO's December 2005 Submission. These items were
all stricken for
insufficient specificity. SCO contends that Mr. Irwin's sandbox would
have facilitated the
17
identification ofthe Dynix/ptx code behind the methods and concepts he
disclosed — the very
information SCO was sanctioned for not providing.
SCO has identified numerous other former Dynix/ptx programmers whom
IBM
transferred to the LTC to program for Linux, and who, SCO contends,
improperly contributed
methods and concepts to Linux.6
Like Mr. Irwin, each of these programmers would likely have
used sandboxes, or similar workspaces, in developing Linux. These
sandboxes or workspaces
would have confirmed (had they not been purged) whether these
programmers maintained access
to old Dynix/ptx code (as their emails and other comments suggested they
did) and which parts
of Dynix/ptx they retained. The sandboxes also would have contained the
drafts of these
programmers' code disclosures to Linux, from which copying could more
directly be proven.
Accordingly, the evidence destroyed in the purging of the sandboxes
is highly relevant to
SCO's claims. The importance of the initial source code from which later
drafts were developed,
and the prejudice flowing from its destruction, was recognized in a
similar case involving
copyright infringement. In Cabinetware, Inc. v. Sullivan, No.
Civ. S. 90-313 LKK 1991, WL
327959 (E.D. Cal. 1991) (Ex. B), the defendant destroyed source code
after receiving a
document request for such code. The magistrate judge found that
"computer programs can be
easily modified to disguise the copying of source codes and that a
comparison of [the
defendant's] initial source code with [the plaintiff's] source code is
of critical importance in this
case." Id. at *2. Therefore, the magistrate judge recommended
that an adverse instruction be
given. The district court agreed that the evidence that was destroyed
was "essential to plaintiff's
18
case" of copyright infringement, and entered a default judgment on
the issue of liability against
the defendant. Id. at *2, 4. As in the Cabinetware case,
the code in IBM Linux programmers'
sandboxes was important to SCO's case, because computer programs can so
"easily be modified
to disguise the copying of source codes."
V. SCO SHOWED THAT IBM ACTED IN BAD FAITH.
SCO also seeks reconsideration of the decision that SCO did not show
that IBM acted in
bad faith. Bad faith can and should be inferred from the circumstances
surrounding IBM's
directive to purge programmer sandboxes or workspaces. As IBM became
involved in Linux,
IBM repeatedly and publicly boasted that its experience in and
disclosures from AIX and
Dynix/ptx was the critical difference in evolving Linux from a hobbyist
system to a
commercially-hardening operating system. For example, in an interview
with Linux Magazine
about the state of the Linux kernel in 2001, IBM programmer Patricia
Gaughen stated that Linux
REDACTED
another example, Dan Frye, the Director of the LTC, confirmed in an
interview with the
Consulting Times that the LTC "wanted skills from across IBM, and
we have people from AIX,
and OS2 . . . and PTX, and Research and so on." (Consulting Times,
Inside IBM — Dan Frye and
the Linux Technology Center, Ex. 9.) Frye also discussed the porting
of IBM's proprietary
technology to Linux, stating "[IBM] just add[s] arms and legs and skills
to make [projects within
Linux] go faster." (Id.)
When SCO realized that IBM was improperly using these Unix-derived
works in Linux,
SCO confronted IBM regarding the problem without success, and then filed
the instant lawsuit
19
against IBM on March 6, 2003. SCO's initial complaint against IBM made
clear that the,
conduct of the LTC in making disclosures to Linux development was at the
heart of the lawsuit.
IBM's destruction of evidence then ensued as a direct response to
the lawsuit. After SCO
filed its lawsuit, IBM immediately determined that access by its Linux
programmers to AIX and
Dynix/ptx code should be removed. This shows that there was no confusion
on IBM's part as to
the significance of the AIX and Dynix/ptx code to which its Linux
programmers had access and
the nature of the problem alleged by SCO in its complaint. However, IBM
did not stop there.
IBM's OSSC then decided that Linux programmers whose access had been
removed should also
"purge" their sandboxes or similar workspaces. That OSSC decision was
then implemented in
IBM's Linux Technology Center — the very organization within IBM
that was tasked with
developing the code for Linux that was at issue in SCO's lawsuit.
This rapid succession of events from SCO's lawsuit to the destruction
of the sandbox
evidence necessarily creates an inference of bad faith. IBM cannot
reasonably contend that its
destruction of evidence was accidental or coincidental. Rather, the
destruction was an
intentional act taken in response to the filing of SCO's lawsuit. This
establishes willfulness and
bad faith. Furthermore, IBM spent the next two years after the lawsuit
resisting efforts of SCO
to obtain access to the code repository systems CMVC and RCS that it now
claims absolve it of
any culpability for destroying evidence in 2003.
At the January hearing IBM argued that SCO has not satisfied the bad
faith element
because "SCO has not come forward with a shred of evidence that any
member of the LTC, or
Mr. Swanberg, ever entertained the thought that what they were doing by
making this very
simple request was destroying evidence." But this argument goes far
beyond what the law
20
requires of SCO to show bad faith. Bad faith can be clearly inferred
from circumstantial
evidence. Adams v. Gateway. Inc., No. 2:02-CV-106 TS, 2006 WL
2563418, at *3 (D. Utah
2006) (Ex. C). In parlicular, courts have found the timing of the
destruction of evidence —
whether evidence is destroyed after notice that it could be relevant in
litigation —
probative to bad
faith. See. e.g., In re Napster. Inc. Copyright Litig., 462 F.
Supp. 2d 1060, 1070,
1072-74 (N.D.
Cal. 2006) (finding duty to maintain and not destroy relevant email and
other documents after
notice of litigation, and that destruction after notice of litigation is
relevant to determination of
willfulness or bad faith); Computer Associates Int'l. Inc. v. Am.
Fundware. Inc.,
133 F.R.D. 166,
169-70 (D. Colo. 1990) (finding deletion of source code by computer
program developer in
copyright action merited spoliation sanction of default because timing
of destruction after notice
of litigation); Brown & Williamson Tobacco Corp. v. Jacobson, 644
F. Supp. 1240, 1248-49
(N.D. Ill. 1986) (noting under a totality of the circumstances analysis
that selective destruction
after notice that a lawsuit is pending may serve as basis for finding
bad faith spoliation);
see also
Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119,
1134-35 (7th Cir. 1987)
(affirming jury finding in trial court on same).
The decision in Computer Associates International. Inc. v.
American Fundware. Inc., 133
F.R.D. 166, 169-70 (D. Colo. 1990), is particularly instructive. In that
case, Computer
Associates ("CA") alleged that the defendant, American Fundware ("AF"),
improperly copied its
software in violation of their agreement. As in the SCO case, CA brought
these issues to AF's
attention and, when a resolution could not be reached, filed suit
against AF. Id. at 168. Before
that time, AF had been destroying all previous versions of the software
at issue, other than the
current version, and AF continued this practice after the litigation had
commenced. Id. CA
21
moved for sanctions based on this spoliation of evidence. The court
imposed a default judgment
on AF for its destruction — even though the court found that the
practice of deleting
old versions
"is commonly followed in the industry, for legitimate reasons, and is
not inherently wrongful."
Id. The Court persuasively explained: "It is inconceivable
that after the October 1986
[pre-litigation] meeting, AF did not realize that the software in its
possession would be sought
through discovery. Certainly commencement of the action settles any
doubts."
Id. at 169
(emphasis added). Therefore, the court concluded that the destruction
was willful and in bad
faith, and that the destruction of source code, the "best evidence" of
copying, inflicted "the
ultimate prejudice." Id. at 170. In this case —
where IBM actually undertook the destruction of
evidence in response to the litigation and with clear notice that the
evidence would be relevant to
SCO's claims — bad faith should be inferred.
22
CONCLUSION
Based on the foregoing, SCO respectfully requests that the Magistrate
Court reconsider
the March 2, 2007 Order, and grant the relief requested by SCO.
DATED this 16th day of March, 2007.
HATCH, JAMES & DODGE, P.C.
Brent 0. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stuart H. Singer
Stephen N. Zack
Edward Normand
23
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim-Defendant, The SCO Group, Inc., hereby
certifies that a true and
correct copy of the foregoing REDACTED SCO'S MEMORANDUM IN SUPPORT
OF ITS
MOTION FOR RECONSIDERATION OF THE MARCH 2, 2007 ORDER DENYING
SCO'S MOTION FOR RELIEF FOR IBM'S SPOLIATION OF EVIDENCE was
served on
Defendant/Counterclaim-Plaintiff, International Business Machines
Corporation, on this
21st day
of March, 2007, via CM/ECF to the following:
David Marriott, Esq. ([Email])
Cravath, Swaine & Moore LLP
[address]
Todd Shaughnessy, Esq. ([Email])
Snell & Wilmer LLP
[address]
1 |
The Magistrate Court only referenced CMVC, which is an AIX code
repository. CMVC does not
contain any Dynix/ptx code, so could not possibly have contained
duplicates of any
Dynix/ptx code that SCO contends was destroyed. Therefore, SCO also
addresses herein
IBM's anticipated argument that any destroyed Dynix/ptx code would have
been included
on the Dynix/ptx change control system, RCS, comparable to AIX's CMVC.
(Referenced here) |
2 |
This same IBM programmer was identified in SCO's December 2005
Submission as a significant
contributor of misused material to Linux.
(Referenced here) |
3 |
The hearing referenced was a February 6, 2004 hearing. (Ex. 3 at
23:18-24:ll.)
(Referenced here) |
4 |
The Read Copy Update (or RCU) technology is one of the major items of
Dynix/ptx technology SCO
contends was improperly disclosed by IBM.
(Referenced here) |
5 |
This is remarkable testimony since Mr. McKenney was, at this time, a
Linux programmer and not a
Dynix programmer.
(Referenced here) |
6 |
The group includes: Dipankar Sarma, Paul McKenney, Jack Vogel,
Swaminathan Sivasubramanian,
Michael Hohnbaum, Gerrit Huizenga, Patricia Gaughen, Martin Bligh,
Suparna Bhattacharya, Badari
Pulavarty, Hanna Linder, Tim Wright, James Cleverdon, and Dave Hansen.
(Referenced here) |
|
|
Authored by: DaveJakeman on Monday, April 16 2007 @ 11:18 AM EDT |
A link to click, some think is slick.
---
Only two things are infinite: the universe and human stupidity – and I'm not
sure about the former. -- Einstein[ Reply to This | # ]
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- Off Topic - Authored by: LionKuntz on Monday, April 16 2007 @ 06:09 PM EDT
- SCOX Warning Watch - Authored by: red floyd on Monday, April 16 2007 @ 06:14 PM EDT
- April 25. SCOX D-day. That's the Delisting 30 tradings days trigger date. Watch for PAINTBLASTER - Authored by: SirHumphrey on Monday, April 16 2007 @ 06:19 PM EDT
- Intel Geneseo and Microsoft Vienna both "timed" to arrive around 2009? - Authored by: Brian S. on Monday, April 16 2007 @ 07:31 PM EDT
- CP80 - Authored by: JamesK on Monday, April 16 2007 @ 08:21 PM EDT
- Defective by Design - Yet Again! - Authored by: davcefai on Tuesday, April 17 2007 @ 12:18 AM EDT
- Newspick - OOXML - disppearing contradictions? - Authored by: kh on Tuesday, April 17 2007 @ 03:57 AM EDT
- Convicted - without any evidence - Authored by: Anonymous on Tuesday, April 17 2007 @ 04:57 AM EDT
- Interesting factoid about history of JFS - Authored by: Anonymous on Tuesday, April 17 2007 @ 12:27 PM EDT
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Authored by: Anonymous on Monday, April 16 2007 @ 11:19 AM EDT |
SCO = different day, same stuff. They never learn.
Waterman not logged in.[ Reply to This | # ]
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Authored by: DaveJakeman on Monday, April 16 2007 @ 11:20 AM EDT |
Should any be needed...
---
Only two things are infinite: the universe and human stupidity – and I'm not
sure about the former. -- Einstein[ Reply to This | # ]
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Authored by: cricketjeff on Monday, April 16 2007 @ 11:32 AM EDT |
TSG "Judge Wells we have examined all the data supplied by IBM and cannot
find any infringing material"
JW "So you have no case?"
TSG "Please don't be so silly, we wouldn't have thrown away
^H^H^H^H^H^H^H^H^H^H^H wisely invested our shareholders money in such amounts if
we had no case"
JW "But you have no evidence"
TSG "You are being silly again, we have all the evidence we need, all you
have to do is to tell IBM to give it to us, so sign this order please"
JW "But IBM have already given you every version of every operating system
since Babbage, along with about five truckloads of other material"
TSG "But they haven't given us the evidence that they copied all our good
stuff"
JW "They have given you everything they have written, and you have your own
code I assume"
TSG "Why do you keep being so silly? They wouldn't have used any stolen
material in anything they give to us"
JW "If they haven't used it in what sense have they hurt your
company?"
TSG "They are richer than us and it hurts our feelings! If you tell them to
give us lots of money we won't hurt as much and that will be much better"
JW "But you have to have some evidence of wrong doing"
TSG "That's why we want you to tell them to give us some evidence"
JW "What if there isn't any"
TSG "They must have destroyed it, send them to jail"
JW "What if there never was any"
TSG "We are getting very fed up with your sillyness, if there wasn't any we
wouldn't have brought a case!"
JW "You were supposed to have evidence before you started the case, how
about you show me that"
TSG "Tell IBM to give it to us and we will"
etc...
etc...
etc...[ Reply to This | # ]
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- SCO's case - Authored by: lordshipmayhem on Monday, April 16 2007 @ 11:42 AM EDT
- SCO's case - Authored by: Anonymous on Monday, April 16 2007 @ 11:42 AM EDT
- hrm - Authored by: Anonymous on Monday, April 16 2007 @ 11:44 AM EDT
- hrm - Authored by: cricketjeff on Monday, April 16 2007 @ 03:24 PM EDT
- SCO's case - Authored by: Anonymous on Monday, April 16 2007 @ 11:48 AM EDT
- SCO's case - Authored by: PolR on Monday, April 16 2007 @ 01:04 PM EDT
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Authored by: DaveJakeman on Monday, April 16 2007 @ 11:42 AM EDT |
If the developers cleaned out their sandboxes, IBM was guilty of spoliation; if
the developers didn't clean out their sandboxes, IBM was guilty of copyright
violation - or contract violation, or copying their own code into Linux, or
something, mumble, mumble...
And the Judge just didn't understand.
But no questions were asked about when the developers stopped beating their
wives! Surely the Judge would understand that. How could SCO be so remiss?
---
Only two things are infinite: the universe and human stupidity – and I'm not
sure about the former. -- Einstein[ Reply to This | # ]
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Authored by: Steve Martin on Monday, April 16 2007 @ 12:03 PM EDT |
CMVC and RCS could not possibly show whether that code
had
been retained on programmers' systems when they transitioned to work on Linux,
or what particular subparts or versions of the operating system had been
retained by the programmer. Furthermore, those systems could not possibly
contain drafts of Linux code.
Wait wait wait wait
wait wait wait....
Did I read that last sentence correctly? Did The SCO
Group just admit in a court filing for all the world to see that it is
impossible for CMVC (which contains all released and unreleased AIX code)
to contain Linux code? That there is no AIX code in Linux??
Then what
the heck was the past four years all about???
--- "When I say
something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: Anonymous on Monday, April 16 2007 @ 12:11 PM EDT |
This has gone on for about four years and counting, with SCO demonstraing many
examples of ABA-defined un-professional conduct and probably more examples of
ABA-defined Ethics volations. I wonder if it is possible for the ABA to review
this ongoing travesity of justice?[ Reply to This | # ]
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Authored by: overshoot on Monday, April 16 2007 @ 12:16 PM EDT |
Maybe I'm missing something, but it doesn't read like SCOX is writing this
"attacking" IBM -- their target is the Court.
Yes, the way our system works it's going to be up to IBM to argue against it. I
suppose that the Court could simply rule before IBM even files (after all, we've
had plenty of motions granted before being fully argued -- including one where
the opposition crossed the order in transit.)
In the end, however, out of an entire frivolous case, this has to be the poster
child for frivolous motions. Could someone please tell me when the Court is
free to comment on that fact?[ Reply to This | # ]
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Authored by: ThrPilgrim on Monday, April 16 2007 @ 12:17 PM EDT |
SCO seams to have a problem with Sandbox (A specic checked out version of code
from a code repositery), sandbox (a part of a computers memory space where you
can run a program / operating system under a controlled environment where it
will not effect the rest of the computer's environment) and sandbox a computer
used by a developer to test new ideas.
I wonder if Groklawians have other instences of SCO being similerly confused. I
think we should be told[ Reply to This | # ]
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Authored by: kawabago on Monday, April 16 2007 @ 12:26 PM EDT |
It would have been helpful if the judge had defined in specific terms what
copyright infringement actually is so SCO wouldn't keep claiming infringement
that won't fly in court. It might have considerably reduced the paper burden.
This motion would never have been argued the first time because there is nothing
in it that withstands court scrutiny. On the other hand SCO would probably just
be bleating about something else because, with no evidence, what else can they
do?
Too bad they didn't come across Aladin's lamp in discovery but even with it, 3
wishes probably couldn't save SCO's case anyway.[ Reply to This | # ]
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Authored by: billyskank on Monday, April 16 2007 @ 12:26 PM EDT |
which they will, in excruciating detail, and SCO will lose their motion. And if
they then file yet another motion for reconsideration, even though they're not
supposed to, IBM will have to reply to it all over again, presumably. Can it
carry on ad infinitum, money supplies allowing?
---
It's not the software that's free; it's you.[ Reply to This | # ]
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Authored by: ThrPilgrim on Monday, April 16 2007 @ 12:29 PM EDT |
SCO are claiming that they can't find any of their code in Linux.
Therefor it must have been in the Sandboxes.
The Sandboxes where wiped.
So the their code did not make it into Linux.
As none of SCO's code got into Linux IBM owes SCO Biiiiiilins of dollars because
IBM have deprive SCO of the right to sue IBM for copyright infringment.
Humm ... Have I got this right?[ Reply to This | # ]
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Authored by: billyskank on Monday, April 16 2007 @ 12:29 PM EDT |
...you know the rest. It's been a while since we had one of those. ;)
---
It's not the software that's free; it's you.[ Reply to This | # ]
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Authored by: Anonymous on Monday, April 16 2007 @ 12:35 PM EDT |
"Your Honour, we simply must have a record of whatever radio stations the
defendant, Mr. Mozart, was listening to while composing the 'Paris Symphony'.
Although it doesn't sound at all like our client, Mr. Bach's, 'Air', teh former
still might have influenced him while writing the later, and thus be a blatant
case of a derivative. That the defendant is unable to come up with such a list
after ten years is an obvious spoilation of evidence!"[ Reply to This | # ]
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Authored by: Steve Martin on Monday, April 16 2007 @ 12:40 PM EDT |
TSG is claiming that the code in IBM's sandboxes was Linux code, and
therefore would not be in CMVC/RCS. Okay, let's see.
III.
SCO HAS SUBMITTED COMPELLING PROOF THAT DESTRUCTION OF RELEVANT EVIDENCE
OCCURRED.
SCO submitted substantial proof in the form of IBM
executive and programmer emails and deposition testimony that IBM destroyed
relevant evidence, and that evidence should be fully considered since SCO has
established that the destroyed evidence was not available
elsewhere:
Swanberg Email On April 8, 2003 — one month after
SCO's lawsuit was filed and shortly after the decision to restrict access to AIX
and Dynix/ptx source code had been made — Randal Swanberg, a senior IBM
executive, sent the following email to IBM managers and team leaders relaying
additional instructions:
(Okay, so far we know IBM management
restricted access to AIX and Dynix/ptx source code, which to my eyes is
completely in keeping with the Software Agreement.)
Daniel Frye
Deposition Testimony: The decision described in the Swanberg email was then
carried out more broadly within IBM. Daniel Frye instructed Linux programmers
within IBM's LTC to "purge" or "delete" AIX and Dynix/ptx source code from their
local machines and sandboxes.
(Okay. They deleted AIX and
Dynix/ptx code. That code would have still been in CMVC.)
In
short, programmers within the LTC, who had previously had access to AIX and
Dynix/ptx code, and who had had that access removed, were then further
instructed to purge or delete all such code from their machines and to purge and
delete the contents of their sandboxes.
(Again, TSG claims
programmers were instructed to purge AIX and Dynix/ptx code from their
sandboxes.)
Paul McKenney Testimony: Linux programmer (and
former Dynix/ptx programmer) Paul McKenney confirmed that he deleted Dynix/ptx
source code from his machine in response to such an
instruction.
(Yet again, the cited testimony says they deleted
Dynix/ptx code.)
In all these cases TSG does not allege that the
evidence shows anyone deleted Linux code; it all cites the deletion of
AIX and Dynix/ptx code, which is entirely proper if (1) they were now
working on Linux, and (2) their access to AIX and Dynix/ptx code was (as TSG
alleges) revoked.
So what's the problem??
--- "When I say
something, I put my name next to it." -- Isaac Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: tknarr on Monday, April 16 2007 @ 12:45 PM EDT |
<voice type="whiny 2-year-old">"WAAAAAAAHH! Mooooooommyyyyy! IBM won't
admit it stole from us and tell us everything it stole! Make them STOP!"
(Note
lack of a close tag...)[ Reply to This | # ]
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Authored by: ka1axy on Monday, April 16 2007 @ 12:58 PM EDT |
When tSCOg complains that they could have found something useful in the
sandboxes, I have to agree with them. In addition, I would be very surprised to
find that IBM's Linux programmers do not use sandboxes, a standard way of
testing code under development. But it doesn't matter, because stuff in
sandboxes comes and goes. There's stuff left over from previous projects, stuff
that may never be used and stuff that will be used. No way of telling what's
what without speaking to the developer involved.
However, the stuff in the sandboxes doesn't count when you're talking about
copyright infringement. All that counts, is the final product. Does it, or
doesn't it contain protectable elements of the copyrighted work? tSCOg can look
at the Linux source, andy version they choose, and look for instances of
copying. They have the AIX/Dynix sources, they have the Linux sources, and they
have the Unix sources. In addition, they have the CMVC details of who chekced
out what, when, and when they chekced it back in. At the very least, this would
give them usernames to compare.
So. A tempest in a teapot, or a smoking gun dropped into the river? Probably
the former. Their case shouldn't depend on transient data like sandbox
contents. Presence in a sandbox does not equate to a copyright violation.
One would hope that tSCOg's case is stronger, and involves documentable (by
file, routine and line of code) copying. What? It seems they (still) can't
produce those crucial coordinates. Oh well...
Peter
(who's written some code)[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Monday, April 16 2007 @ 01:07 PM EDT |
Every time BSF gets nailed the start generating circular references.
Earlier in response to IBM's demand to tell them what IBM had done wrong SCO in
essence said we do need to tell them they know what they did wrong.
Now they are in essence saying that that since we can't find anything IBM must
have destroyed evidence which is why we can't find anything and since they
destroyed evidence we win. They are using the lack of evidence as proof of
guilt.
It makes my head hurt.
---
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 | # ]
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Authored by: jmc on Monday, April 16 2007 @ 01:12 PM EDT |
Why is it called a "reply" when IBM hasn't responded yet?
Is the header wrong? Or what? The text doesn't read like a "reply".
[ Reply to This | # ]
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Authored by: Jaywalk on Monday, April 16 2007 @ 01:28 PM EDT |
SCO's motion sounds like they found out that the janitors are still emptying the
wastebaskets. So they tell the judge that the wastebaskets might have contained
evidence. Not that they have any proof or even credible evidence that they did,
but they might have. Never mind that those who had the wastebaskets have sworn
that the wastebaskets were empty.
Now they want the judge to decide that 1) the wastebaskets were not empty and 2)
they contained persuasive evidence. I guess it's easier than dealing with all
this "proof" stuff.
---
===== Murphy's Law is recursive. =====[ Reply to This | # ]
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Authored by: jmc on Monday, April 16 2007 @ 01:47 PM EDT |
PJ quoth:
And the ultimate reason why you are not supposed to ask
for reconsideration just to get another bite at the apple is because it's not
fair. Think about motion practice. You follow the ABA format. SCO files the
motion, IBM puts in a memo in opposition, then SCO replies. So if you do a
motion for reconsideration that reargues the same points, in effect you have SCO
speaking 4 times, and IBM only gets to speak twice.
I
count:
- Original motion: 2 from SCO 1 from
IBM
- Reconsideration: 2 from SCO 1 from IBM
- Objections: 2 from
SCO 1 from IBM
- Probable future reconsideration of denial of objections:
2 from SCO 1 from IBM
- Appeal from Kimball: 2 from SCO 1 from
IBM
So this round will have had 6 from SCO and 3 from IBM and by
the time it's over 10 from SCO 5 from IBM.
[ Reply to This | # ]
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Authored by: webster on Monday, April 16 2007 @ 01:58 PM EDT |
..
1.******************"First, the primary basis for the ruling — that the
evidence SCO contends IBM destroyed "is available and has been available
through CMVC" — is not correct. IBM's representations at the January 18
hearing in this regard are false. Neither CMVC (the AIX change control system
referenced by the Magistrate Court) nor RCS (the Dynix/ptx change control
system) contains the evidence SCO contends IBM destroyed.1 CMVC and RCS could
not possibly show whether that code had been retained on programmers' systems
when they transitioned to work on Linux, or what particular subparts or versions
of the operating system had been retained by the programmer. Furthermore, those
systems could not possibly contain drafts of Linux code."****************
First of all there is an evidentiary, factual issue that prevents summary
determination of this issue. SCO says IBM destroyed evidence. IBM says the
evidence survives in CMVC and RCS.
Then SCO uses the inference to justify their request for the inference: SCO
says IBM destroyed relevant evidence so they should be allowed to use the
inference that IBM destroyed relevant evidence. They know it is relevant
evidence because it can be inferred from IBM destroying the evidence.
Indeed the sequence seems to show that IBM used good practices to prevent the
intermingling that SCO drools to infer. One must keep those sandboxes clean
before they get smelly.
2. SCO's second is more of the first.
3. ****************"Third, the Court's finding that SCO was not prejudiced
was based on the mistaken conclusion that the evidence was still available to
SCO elsewhere. In reality, the evidence destroyed by IBM was not available to
SCO in CMVC or RCS. In addition, the evidence destroyed is directly relevant to
SCO's claim that IBM's Linux programmers referred to AIX and Dynix/ptx code
while programming for Linux and to SCO's efforts to identify the AIX and
Dynix/ptx source code behind IBM's disclosures to Linux, including IBM's
numerous disclosures of methods and concepts.'******************
Agree with PJ. They can't say this unless they ask the programmers. They just
continue to presume and juggle inferences. Methods and concepts are irrelevant
at this time.
4. ******************"Fourth, the Court's finding that IBM did not act in
bad faith, for purposes of the adverse inference instruction requested by SCO,
was also based on the mistaken conclusion that the evidence was still available
to SCO elsewhere. In fact, SCO has shown that IBM directed that highly relevant
and original evidence be destroyed just a month after the instant lawsuit was
filed. Bad faith must be inferred from this conduct."*********************
Sometimes one must think they are mocking themselves, their supposed opponents
or the system. Who knew what the lawsuit was about a month after it was filed?
Certainly with a NDA and disclosures years away at SCO's behest, IBM could not
have known that the sandboxes and repository for AIX and Dynix were involved!
If the court can't find that 1) evidence was destroyed and 2) that evidence was
relevant, how can it find bad faith? The court seems to know where the suspect
faith lies.
Such an ado. One infers that SCO has nothing better.
---
webster
[ Reply to This | # ]
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Authored by: Anonymous on Monday, April 16 2007 @ 02:00 PM EDT |
tSCOg, show me some evidence!
...waiting.
Didn't think so.
All they have is third party guesses? Even The People's court would laugh this
one off.[ Reply to This | # ]
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- The problem - Authored by: Anonymous on Monday, April 16 2007 @ 03:19 PM EDT
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Authored by: Anonymous on Monday, April 16 2007 @ 02:25 PM EDT |
I see something slightly different here. But that's probably just my paranoia
again.
Firstly, I think this is being played out for the jury in any possible future
trial. Do you think that part of the legal strategy from SCO might be to create
the implication of improper conduct, even where none is proven? For sure Judge
Kimball would stop things sooner or later, but one of the techniques we've seen
so far from SCO is to quote reporting of journalists as evidence of fact. It's
no stretch to imagine that they could try the "There's no smoke without
fire" strategy here. With someone of the skills of David Boies in the room,
it's not hard to visualise him making open-ended statements in front of a jury:
"Ah, but of course my client would not have been able to prove that point
since the Linux developers don't use sand-boxes. Apparently. How convenient. And
how strange that other IBM developers do. Curious, don't you think?"
Another possible future use of this exchange is in terms of grounds for an
appeal. In order to succeed at appeal you need to come up with something new, or
point to an error of fact or law, or to a mistake made by the Court. So, and
this is purely hypothetical, it's possible that this motion is trying to paint
Magistrate Judge Wells' ruling in error, not particularly because they expect to
get it overturned by Judge Kimball with this appeal, but purely so they could go
to a higher court and demand a recount on the vote.
There are strategies within strategies at work here, as PJ points out. She
rightly says that IBM have to take the slow, careful, methodical route and
answer every possible point in every incoming charge. It's not just for this
case and for Judge Kimball, but it also means that it becomes much harder for
SCO to argue legitimate grounds for appeal in the future (should we ever get
that far).
I suspect it might be all to easy for us to overlook this as sour grapes on the
part of BSF .
This might be 2 birds with one stone, or it might be 3 or 4. Only time will
tell. [ Reply to This | # ]
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Authored by: reuben on Monday, April 16 2007 @ 02:45 PM EDT |
Frye also discussed the porting of IBM's proprietary technology to
Linux, stating "[IBM] just add[s] arms and legs and skills to make [projects
within Linux] go faster." (Id.)
When SCO realized that IBM was
improperly using these Unix-derived works in Linux, SCO confronted IBM regarding
the problem without success, and then filed the instant lawsuit
[...]
So now the arms and legs of IBM programmers are now
Unix-derived works??? Does SCO get their first-born children, too? [ Reply to This | # ]
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Authored by: hbo on Monday, April 16 2007 @ 02:47 PM EDT |
I've never used CMVC, but from the descriptions posted here, it is said to use
"sandboxes." This is a concept I am familiar with from CVS and other version
control systems. I'm also familiar with RCS, and I know that it doesn't
use sandboxes.
What's a sandbox?
A sandbox is an area on computer
in which you store checked out copies of files you are working on. In CVS, it is
also known as your "working directory." In CVS, and apparently in CMVC, the
various versions of source code are stored in a "repository." This is an area
where each different revision, 1.1, 1.2, 1.3, for example, are stored, along
with administrative information. A user "checks out" a revision, which means she
copies a particular version - per default the latest one - from the repository
into her sandbox. Later, after making changes, the user can check the file back
in to the repository. This saves a new revision, and with systems built for
concurrent use like CVS, makes sure no one else has checked in incompatible
changes in the meantime.
RCS
RCS isn't built for concurrent use.
Like earlier version control systems such as SCCS (the SysV default version
control system) there is no repository. Instead, there is one version
control file per source code file. Typically, these are stored in the
same place the source code working files are. This is OK if you are the only
person working on the file, but falls down badly when you are part of a team of
programmers. But the critical point is this: no repository equals no
sandbox since a sandbox is an area separate from a
repository.
Sandboxes, again
We can now better understand the
term "sandbox" as it applies to working directories in CVS. A sandbox is "a safe
place to play" for the developer. It's safe because the real, official versions
are safe in the repository. With RCS, you could easily blow away the "comma v"
file (revision files in RCS all end with ",v") by mistake. With CVS, you can
throw away your entire sandbox and all you will lose will be the changes you
made since the last time you updated it. So this is probably what is meant when
it is said the Linux programmers had no sandboxes.
Who checked out
what?
The administrative information in a repository can include logs of
who checked stuff out and when, but in CVS by default, it doesn't. What
is included per default is who checked stuff in and when they did
that. A moment's reflection should make clear why the version control system is
more interested in check in rather than check out. CMVC is a whole different
animal, so I can't say for sure. But it is plausible that check out
information was recorded for IBM's AIX programmers. If so, then SCO
probably just didn't know how to extract that information, or could claim so if
pressed.
Disclaimer: I work for IBM, but am not representing the company in
any way here on Groklaw. I have no direct knowledge of any of the events at
issue in this litigation in any event. (I started in 2003 after I first
read Groklaw. 8)
Regards, Howard
--- "Even if you are on
the right track, you'll get run over if you just sit there" - Will Rogers [ Reply to This | # ]
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Authored by: Anonymous on Monday, April 16 2007 @ 03:37 PM EDT |
"CMVC and RCS could not possibly show whether that code had been
retained on programmers' systems when they transitioned to work on Linux, or
what particular subparts or versions of the operating system had been retained
by the programmer. Furthermore, those systems could not possibly contain drafts
of Linux code."
What SCO does not understand is that CMVC and RCS contain a superset of the
information on the Programmers Workbenchs and Sandboxes. They can assume that
all the files that had been checked out was still there to be refered to when
the Sandboxes were purged (if they were indeed purged) or on backups. Their
theory of preservation would only serve to midigate the Damage by IBM by showing
that the files were not on the machines. The only to determine what files were
available would be to depose all Programmers who were given the instruction to
clean their Sandboxes in the Email.
When I was a Programmer and Tester, each programmer and tester had a Programmers
Workbench to do the developmnet on, and all Sandboxes were shared and rebuilt at
least once a week to garantee that the files being tested were not affected by
other users and to recover if the test corrupted the system. Also nobody kept
all drafts, if something did not work, the working copy was often rolled back to
a previous backup and re-edited. Normally the file was saved before an edit
and backups were normally done on a weeekly and monthly basis if neccessary
using rotating backup system. Also as the project used cross platform
compilers, the Workbenchswer was often a different platform than the
Sandboxesand the test often required multiple Sandboxes. Also the files were
frequently deleted from the Workbench when the code was checked back in, so that
it wold be there to be purged.
So I think that their use of Sandbox to describe both functions for Spoliation
of evidence belies the true usage of Sandboxes in the real world. So the order
to purge the Sandboxes could be a normal event to guarantee a clean development
and test enviroment for future development and testing.
So as the information is on CMVC and RCS, SCO knows (if they could figure out to
use them), all of the files that the programmers in question could have refered
to in the development of the new project that they had checked out. Of course,
there is no way to know exactly what was on the machines unless they had been
frozen at the time and new machines issued to all developers, which is
unreasonable. Even then theres to tell if a developer had deleted the files in
question on their own volition before the machine was frozen. There is of
course, no way to prove if the developers got copies of anything from another
developer during the life of the development, without deposing all developers on
all projects during the time in question.
So, what I am trying to say is, that there is no way that the level of detail
that SCO seeks would have been availavle even if all machines had been frozen
and new systems had been issued due to normal development practices. The best
guess as what was there to refer to, is in the CMVC and RCS logs, and just
because it was available, does not mean it was refered to. The only way to find
out is to depose all developers, even if the machines had been frozen.[ Reply to This | # ]
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Authored by: GLJason on Monday, April 16 2007 @ 03:37 PM EDT |
From the Lyons article quoting SCO:
However, an attorney for SCO
says the code deletion is one reason why the Lindon, Utah, software maker has
been unable to comply with a demand that it produce examples of allegedly stolen
code.
"It's kind of hard for us to do that," says Brent Hatch,
an attorney with Hatch, James & Dodge in Salt Lake City, "because we don't
have it. It was destroyed before it could be given to us."
So
after filing a multi-billion dollar court case, telling the media there are
"truckloads" of code found by your three experts (at the start of the case no
less) and taking three years of discovery including getting unfettered access to
IBM's source control, they still can't determine what was stolen because they
never had it? What did the teams of experts base their opinions on that started
the case, the assumption that IBM must have stolen code?
Nothing
to see here. An IBM manager told his employees where were working on Linux now
to delete any copies of AIX that may have been on their computers. Seems like
SCO would point to this and say "That's exactly what we want you to do, make
sure your Linux programmers aren't looking at Unix code." The real problem for
SCO is that any code they got from AIX is still in AIX source control that IBM
gave them a copy of so there was no destruction.
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Authored by: Anonymous on Monday, April 16 2007 @ 03:54 PM EDT |
As a student working towards a law degree, I never cease to be amazed at the
audacious nature of SCO's filings. Rather than submit filings to make matters
clearer to the judge, they seem be doing the opposite. When I am finally able
to practice law, it is people like SCO that I will be winning against because
truth almost always trumps dishonesty. It's a strategy that I plan to use often
and, by the grace of goodness, win often.
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Authored by: GLJason on Monday, April 16 2007 @ 04:47 PM EDT |
Expert Marc Rochkind:
[A] sandbox is the only place where the
progression of code drafts can be viewed. For AIX code, CMVC shows the initial
code that was checked out, and the final code that was checked back in, but not
all the steps in between. The RCS system for Dynix/ptx provides even fewer
details than CMVC. Yet it is these steps, these intermediate drafts, — saved
only on programmers' sandboxes — that would have been so important to develop
further proof of IBM's copying.
If it doesn't get checked back
in to source control, it is never a part of the product. If I work on something
and it doesn't work out so I never check it in, I just delete it or replace it
from source control. Not only that, but there are not multiple intermediate
drafts. You check something out, you work on it, then you check it in, delete
it or replace it with another copy from source control. There just aren't a lot
of different versions of code laying around on a computer that aren't in source
control. If I'm doing major changes, I'll create a branch in source control and
make all the changes there. Then I'll merge the changes with the main branch
that others may have been making changes on also. All the changes are in source
control contrary to SCO's expert witnesses, who apparently don't have do a lot
of practical software development.
Marc's own statements from his
website seem to contradict his in this case:
SCCS has had one
permanent effect on the way I work now: Whenever I have a few versions of the
same source code file laying around in various directories, I say to myself,
"You really should be using some version control." And, sometimes I actually
do.
So it appears that he only has a few versions of the same file
laying around if he isn't using source control.
SCO may want
to fire Marc Rochkind for a few other reasons. First, he has a book out now
called 'Advanced Unix Programming', basically a re-write of the 1985 version he
authored. He goes into a lot of detail about system calls. Some other things
he makes available on his web site:
- SUS__Summary.html -
basically showing most Unix structures, functions and variables with
descriptions of what they do
- unistd_opts.html<
/a> - showing the values in unistd.h, blatantly violating SCO's purported
copyrights.
- He links to the Single
Unix Specification which he should know would violate SCO's copyrights if
anyone actually used it...
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Authored by: Anonymous on Monday, April 16 2007 @ 04:48 PM EDT |
From this article:
"V. SCO SHOWED THAT IBM ACTED IN BAD
FAITH.
...For example, in an interview with Linux Magazine about the state
of the Linux kernel in 2001, IBM programmer Patricia Gaughen stated that
Linux
REDACTED"
From a previous
article , Footnote 15:
In another example, during an interview
with Linux Magazine about the state of the Linux kernel in 2001, IBM programmer
Patricia Gaughen stated that Linux was "not where the proprietary Unixe[s] are
yet, but we are making much faster progress due to the experienced
Dynix/IRIX/AIX/SN1/Yalnix/ hackers."
Just wonderin' why now
but not then...
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Authored by: GLJason on Monday, April 16 2007 @ 05:23 PM EDT |
Go grab
it. I found the link to the archive on Marc Rochkind's blog. Caldera's license says the
following copyright notice applies: "Copyright(C) Caldera International Inc.
2001-2002. All rights reserved." They must mean the copyright for the
collection only (as is allowed) since the files still don't have copyright
notices. Also a copyright notice must have the date of first publication, they
can't just slap '2001' on there in order to try and get an extra 25 years of
protection. Works published in the U.S. prior to March 1, 1989 must have
copyright notices to enjoy copyright protections (with some exceptions for works
from foreign countries), so whatever is there probably isn't
copyrightable.
The only copyrights I found:
- doc/cacm/p1
- Copyright 1974, Association for Computing Machinery,
Inc.
- man/man0/copyr - Copyright 1979, Bell Telephone Laboratories,
Incorporated
- src/cmd/lex/lmain.c - Copyright 1976, Bell Telephone
Laboratories, Inc., written by Eric Schmidt, August 27, 1976
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Authored by: Anonymous on Monday, April 16 2007 @ 05:47 PM EDT |
I cannot believe all this talk about sandboxes. Any development I have ever
done on any project has been in a checkout from a version control system.
Either the changes made went into that VCS or they went in the trash. They were
never backed up, recorded, or even survived more than a few days.
Linux people do not use M$ Visual Studio, no really.[ Reply to This | # ]
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Authored by: dmarker on Monday, April 16 2007 @ 06:48 PM EDT |
Just keep filing motions & counter motiones on each issue then sooner or
later argue that they are being discriminated against because the Judges keep
squashing all their motions.
The issue of how outrageous or frivilous the motions were may perhaps get
ofusticated as long as they can switch focus to their 'unfair' tretament by the
courts.
DSM.
(There has to be some sanity in their moves, surely, somewhere, ???)
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Authored by: The Mad Hatter r on Monday, April 16 2007 @ 07:25 PM EDT |
It doesn't matter what she does, TSCOG and their lawyers are not happy. And they
continue to whine and moan about it without end.
Judge Kimbel is in somewhat better position, but poor Judge Wells just keeps on
getting dumped on for doing her job.
---
Wayne
http://urbanterrorist.blogspot.com/
[ Reply to This | # ]
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- Poor Judge Wells - Authored by: Anonymous on Monday, April 16 2007 @ 08:27 PM EDT
- Poor Judge Wells - Authored by: Anonymous on Monday, April 16 2007 @ 10:49 PM EDT
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Authored by: Silicon Whisper on Monday, April 16 2007 @ 09:32 PM EDT |
Has anyone asked SCO to describe their source code control practices? It would
be interesting to know how SCO will respond when asked to produce all versions
of Unix/Unixware/Whatever that they supposedly have developed. And all the
sandboxes of the developer machines. Seems like that would be important for
when IBM sues them.
I bet SCO can't produce early versions of Unix/Unixware with all the commit
comments.[ Reply to This | # ]
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- SCO's Sandboxes - Authored by: Anonymous on Tuesday, April 17 2007 @ 01:23 PM EDT
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Authored by: StormReaver on Monday, April 16 2007 @ 09:54 PM EDT |
I run my blog on Wordpress. It has some annoyances, but being hard to use is
not one of them. Lyons states that adding pictures is hard. But compared to
what? Chiseling them from granite with a hammer? Adding pictures to postings
is quite easy with Wordpress.
Calling this his alibi article is being overly fair to his ulterior motives,
whatever they may be. Like his pupper masters as SCO, he digs himself a deeper
whole every time he says something.
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Authored by: sk43 on Monday, April 16 2007 @ 10:57 PM EDT |
From the Forbes article:
"... if you know what you're doing. Which I, um, don't."
Thank you, Dan. That explains a lot.[ Reply to This | # ]
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Authored by: argee on Tuesday, April 17 2007 @ 12:19 AM EDT |
The questions SCO doesn't ask are significant.
Here we have 6 (I belive) AIX programmers, with all or parts
of AIX in their sandboxes.
They get assigned to the LTC, and told to work on Linux. OK
Later on, they get an email "clean your AIX sandbox." OK
The question arises, what relationship is there between what
work they were doing on AIX and were doing on Linux?
For example, if they had checked out JFS on AIX, and then
were contributing to JFS on Linux, that may have some
bearing. Assuming SCOx viral theory.
But what if what they had from AIX was JFS for AIX, but
what they were working on Linux was porting a printer
driver to the POWER PC? No relationship.
As far as I know, from what I have seen so far, the
question has not been asked by SCOx nor volunteered by
IBM. Curious minds would like to know.
---
--
argee[ Reply to This | # ]
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Authored by: argee on Tuesday, April 17 2007 @ 12:49 AM EDT |
This is ancient UNIX, pre-BSD and pre the Univ of Calif
squabble. 32V, if I recall, was not networkable.
Most, if not all, is not copyright because software back then
was not copyrightable.
Univ of CA took 32V and eventually evolved it by adding stuff
to it, into Net-2, and then squabbles in court began. But the
old 32V stuff ... there is probably NO IP IN IT.
Now, Caldera offered this license, for what its worth, but
you could probably do as well just looking at each file
to see what if any copyrights there are. Few if any.
Its like if I give you a Quitclaim Deed to the Brooklyn
bridge "I hereby assign to .... all rights and ownership
that I may have in said bridge ..."
At the time it was a good way to get goodwill and
traction in the FOSS community. Then, thanks to Groklaw,
the BSDI vs USL settlement got cracked open. Ooops.
---
--
argee[ Reply to This | # ]
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Authored by: darkonc on Tuesday, April 17 2007 @ 01:42 AM EDT |
Given the incredibly wide, and ever-widening disclosure demanded by SCO, it was
only a matter of time until they found <b>something</b> that could
be made to look like spoiled evidence. To the extent to which this motion
could even <i>hope</i> to point to relevant spoiled
evidence-in-waiting, this motion really only exposes just how overreaching SCO's
disclosure requests have been.
---
Powerful, committed communication. Touching the jewel within each person and
bringing it to life..[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, April 17 2007 @ 02:33 AM EDT |
The court ordered IBM to help SCO find what the 'missing' information in CVM.
I don't see where SCO claims to have asked IBM for any help.
They do say IBM did not give them any information about the missing information,
but should they not have been required to show where they asked IBM for the
specific information they say is missing from CMV?
Of course I see the irony in using SCO and specific information in the same
sentance.
If I were the judge, I would say , IBM said they would help you find the
information you are looking for. Show me where you asked.
Dennis H
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Authored by: kh on Tuesday, April 17 2007 @ 04:19 AM EDT |
Suppose that an IBM linux developer had a sandox. And suppose he or she decided
to copy a whole bunch of SVR4 code into their linux sandbox and then suppose
that after copying it into their "sandbox" they decided to delete it
and suppose by some miracle the code could be resurrected from some ancient hard
disk - well how is it relevent to this lawsuit? Is it an offence worth $5
Billiion?
Sounds more like a fleeting mistake to me.
Even if IBM management had wanted them to do all that, the fact that it was
never followed through and the code never got into Linux means that it's all
irrelevant to this case.
None of these points seems anything but a huge stretch of the imagination - most
unlikely.
Is this SCOX admitting they don't have a case?[ Reply to This | # ]
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- Even if.... - Authored by: Anonymous on Tuesday, April 17 2007 @ 05:15 AM EDT
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Authored by: Anonymous on Tuesday, April 17 2007 @ 05:10 AM EDT |
It is sad that I supported this man (Mr. Rochkind) by buying his book
Advanced Unix Programming, Second Edition. The nonsense he's prepared to utter
for SCO is beyond belief:
Yet it is these steps, these
intermediate drafts, — saved only on programmers' sandboxes — that would have
been so important to develop further proof of IBM's
copying.
Well, in terms of copyright, it is perfectly
legal to start with something and modify it to bear no resemblance to the
original and then release that. That's not copyright infringment, because the
end result is not a derivative work of the original, but a completely new
work.
As for methods and concepts, the contract between AT&T and IBM
stipulates that IBM isn't allowed to discose methods and concepts from Unix. If
IBM programmers started with code that included those methods and concepts and
ended with the code that didn't and then released that, it is plain obvious that
they didn't disclose any of those methods and concepts.
The only way to
prove copyright infringement and violation of contract terms here is by
finding either copied code or Unix methods and concepts within Linux.
Anything else is just wishful thinking.
Or maybe Mr. Rochkind thinks
that he somehow has the right to sue me because I learnt something from his
book? He should be ashamed of himself, selling out like this. Sad. Really,
really sad. [ Reply to This | # ]
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Authored by: grundy on Tuesday, April 17 2007 @ 02:35 PM EDT |
On page 10 SCO says:
Specifically; CMVC and RCS do not show: ...
whether the programmer ever referred .. to .. AIX or Dynix/ptx files when he was
developing for ... Linux; what the progression of drafts of the programmers'
code for... Linux, looked like — whether the first drafts were similar to the
AIX or Dynix/ptx files he had copied and retained on his system, and then became
progressively dissimilar, until the final version actually bore little
resemblance to the AIX or Dynix/ptx files on which it had been
based... In which case no copyright violation occurred![ Reply to This | # ]
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Authored by: Anonymous on Wednesday, April 18 2007 @ 05:36 AM EDT |
While they were under an IBM chairman, and receiving and distributing IBM
funds?
Yes, or no. It's a simple enough question.[ Reply to This | # ]
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