SCO's suit not all that simple

Salt Lake Tribune ^ | 02-07-2004 | Bob Mims

[cc2k]

SCO's suit not all that simple

By Bob Mims
The Salt Lake Tribune

    U.S. Magistrate Brooke Wells met for nearly 30 minutes in chambers Friday with attorneys for Utah's SCO Group and IBM, hoping to keep their open-court debate simple and to the point.
    But when arguments ended shortly before noon, nearly 90 minutes later, Wells acknowledged she would need time to unravel competing motions related to SCO's claims that its proprietary Unix operating system was illegally incorporated into the Linux OS.
    Noting the "complicated" nature of the issues, Wells told her tiny, standing-room-only courtroom that she would forgo the usual quick oral ruling in such cases in favor of issuing written rulings "within a week."

    SCO seeks up to $50 billion in damages from IBM in a federal suit alleging Big Blue violated its Unix contract with the Lindon-based software company. SCO, which recently added patent violations to its list of allegations, contends IBM illegally dropped Unix code into Linux via contributions from IBM's own AIX and Dynix products.
    The suit, along with SCO's subsequent global campaign to license corporate Linux users under the perceived threat of potential litigation, has enraged the pro-Linux "open source" community, a loosely knit network of programmers and free software developers.
    Several DoS (denial of service) attacks over the past year, including one borne by the MyDoom.A virus that knocked out SCO's Web site last weekend, have had the company pointing the finger at open-source extremists. Open-sourcers, meantime, have blamed spammers or even SCO itself for the DoS attacks.
    On Dec. 12, Wells ordered SCO to provide specific lines of code to prove its claims. IBM was dissatisfied with the response and sought additional data; on Jan. 23, the judge extended SCO's time to comply with the order until Friday's hearing.
    SCO's latest responses also fell short, IBM attorney David Marriott argued on Friday, asking Wells to once more order the Utah company to provide "full, complete and detailed" evidence to back its allegations.
    "SCO has not complied, your honor," Marriott declared. "They have not provided all the documents requested. . . . We want to know the location of the 17 lines of code [SCO has thus far provided to IBM]. We want to know, exactly, what it is in Linux they believe they have rights to."
    Mark Heise, representing SCO, insisted the company has "exhaustively detailed the improper contributions IBM made to Linux." But to provide the "line by line" evidence IBM is now demanding, he said, would require Big Blue to released AIX and Dynix code -- as SCO has requested in its own discovery motion.
    Wells interrupted: "The requirement of the court is that you provide those source codes; this is about your response to the order."
    Heise insisted, however, that without IBM's compliance, "it is literally impossible" for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum it argues exists.
    "We're at an impasse and we can't be at an impasse and have this case remain at a standstill," Wells responded. "You've made your point -- I'm just not certain I agree."
    IBM's Marriott, arguing against SCO's own request for complete AIX/Dynix programming details, said it was an unreasonable burden on his clients to demand "millions and millions of lines of source code" to determine whether the 17 lines SCO has cited are indeed in Linux.
    "Contributions to Linux are public," Marriott said. "All they have to do is get on the Internet."

    Heise countered that "not everything they have put into Linux is public," and that pointing SCO to the Internet did not amount to "complete disclosure" it seeks from IBM.
    bmims@sltrib.com

[N3WBI3]

Or maybe its that there are no illegal contributions. IBM has maintained that they kept the Unix and the Linux guys separate, and having done some work with IBM I would not be the least bit surprised. The teams that look after their Intel servers are 100% separate from the teams that back up their Intel servers.

You cant walk into court and say "I know they stole millions of things" and not be able to tell the court exactly what has been taken. If SCO 'Knew' the lines that made their way into Linux why would the need AIX? just look at the public 2.6 kernel..

[N3WBI3]

And yet they are unable to point at the code in Linux and say 'there it is'...

[N3WBI3]

Yes and the logs of the code they released has been made public (via documentation in the Linux source tree). IBM has never stated (nor has SCO demonstrated) that the AIX and Linux development teams were merged, quite the opposite, IBM has maintained that the teams did not work together and SCO has shown nothing..

[N3WBI3]

Nothing gets into the kernel without approval, nothing gets approved without knowing who its from, nothing ends up in the code without the source being documented..

[Nick Danger]

Tell that to your patron saint, Torvalds.

I find it amusing that you would have the poor judgement to continue with this. Perhaps you are not aware that post-modernism is unpopular amongst conservatives. Most people here believe in the concept of objective truth. If I show them objective reality that demonstrates that the events took place as I said they did, and you come back with "I am so right!" and "You worship Linus Torvalds!" you will, I am confident, be dismissed as a crank, a fool, or some kind of nutcase. Few here will accept the idea that whatever truth you have inside your own head is as valid as truths which can be verified empirically.

You are welcome, of course, to continue ranting on and calling me names, but I think we are past the point where anyone is taking you seriously. You have become a noise machine, and a silly one at that. That is a distinction previously acquired only by the Feathered Flunky, and I am surprised that you would aspire to his lofty credibility level. But suit yourself.

This, then, is the Microsoft Munchkin. What can we deduce about the training that Muchkins receive from the behavior of these two specimens?

[N3WBI3]

Three things could have happened:

1)Linus wrong in the interview.

2)nowhere in the quote does he say at the time of cancellation SCO was involved, instead he says SCO was disappointed it was canceled and the author put in '[a joint-development project with SCO]', thus the author made an incorrect inection in the article.

3)The three links posted in the parent are all wrong?

[Golden Eagle]

I think that within a week, we'll see a written opinion from the judge dismissing this case with prejudice.

Outlandish predictions are so common from the Linux crowd. Quickly forgotten by them, as well.

[Golden Eagle]

<>i>You are welcome, of course, to continue ranting on and calling me names...a distinction previously acquired only by the Feathered Flunky

Danger you are the undispubted king of name callers on FR. I've actually never seen anyone so bitter, a good description would be like a bleeding heart liberal that works as a pusher for the union. Sums it up quite nicely, as a matter of fact.

[Nick Danger]

Danger you are the undispubted king of name callers on FR.

Why thank you, Eagle. I didn't realize that you were keeping tabs. You really think I've passed up Bush2000? That is just awesome!

So tell me... now that I'm ready, how much money is there in going around to the different forums, playing smashmouth with people who don't use Microsoft products? All this time I've been going around beating up on liberals. But there's no money in that. I'm hoping you guys have a better deal.

I see where Microsoft just signed a deal with Disney to attach Digital Rights Management to bestiality, or nature worship, or whatever it is that Disney movies are about these days. You guys need any Digital Mouseketeers? I could go in there and say, "That's right, boys and girls! You're all a bunch of communists unless you use Windows!"

[Cboldt]

Danger you are the undispubted king of name callers on FR.

Negative. You really should visit some of the political threads, say, right around the time of a GOP primary. Wow, name calling out the whoopsie-daisy. Makes these technical/legal threads appear tame, by comparison.

FWIW, Danger seems to be expressing his facts and arguments more cogently than Bush2000 is expressing his. I particularly like the cites and links to source documents, court papers, and the like.

Oh, I use Linux most of the time, not always, and expect Torvalds to misspeak from time to time. We all do.

[Bush2000]

If I show them objective reality that demonstrates that the events took place as I said they did...

LMAO! Rrrrrrright, Nick ... to believe your "objective reality", we'd have to pretend that a company, having worked closely with IBM on Monterey and getting royally screwed over, has no institutional memory -- and the employees that stayed onboard wouldn't retain any bitterness toward IBM. Rrrrrrrright. Sssssssssssure.

[Bush2000]

Three things could have happened...

Occam's Razor: Torvalds got it right. Contrary to Nick's bleating, SCO was pissed that IBM pulled out. It's not a stretch to make such an assertion.

[Bush2000]

So tell me... now that I'm ready, how much money is there in going around to the different forums, playing smashmouth with people who don't use Microsoft products? All this time I've been going around beating up on liberals. But there's no money in that. I'm hoping you guys have a better deal.

Awwwww, Nick. Surely you have more imagination, no? People here have been suggesting that they're happy that MS has security issues because it pays their bills. There's certainly plenty of money in bashing MS.

I see where Microsoft just signed a deal with Disney to attach Digital Rights Management to bestiality, or nature worship, or whatever it is that Disney movies are about these days. You guys need any Digital Mouseketeers? I could go in there and say, "That's right, boys and girls! You're all a bunch of communists unless you use Windows!"

As long as you're volunteering to be a Mousketeer, Nicky, perhaps you should consider moving to Sweden, where bestiality is legal.

[N3WBI3]

no the mostsimple is that linus was wrong not that there is some internet fraud going on to mke nick look right..

[cc2k]

Bush2000 wrote:

---

SCO has already made the claim that IBM broke its contractual obligations.

---

Yes, that's much of what the SCO v. IBM case is about. They have yet to prove anything in that case, and they seem reluctant (or unable) to provide evidence required by order of the court handling that case.

Bush2000 wrote:

---

It has nt assert ownership over the code in question.

---

Perhaps not in court documents. However, in public statements, The SCO Group has claimed that Linux is an unauthorized "derivative work" of UNIX, and The SCO Group is offering for sale (possibly fraudulent) licenses for Linux users. In order for them to legitimately offer a license for Linux, they must hold some kind of rights to something in Linux. However, they never explain what rights they hold, or what specific code they hold those rights to.

Bush2000 wrote:

---

Great. Then you guys -- and IBM -- should have no problem disclosing what was contributed to Linux. Quite obviously, there's no rationale other than legal weaselry for withholding disclosure.

---

What part of this don't you understand. IBM's contributions have already been disclosed. That information is publicly available to anyone with an Internet connection. IBM isn't withholding anything that SCO can't get from other sources. Now, why should IBM be required to expend resources and effort to provide information that's already available publicly?

Bush2000 wrote:

---

IBM signed a contract promising not to disclose technologies that it contributed to AIX. SCO most definitely has a right to enforce that contract.

---

The SCO Group has a right to enforce the terms of all of their contracts with IBM. However, if one section of one contract is superceded by a later supplemental agreement, or a later clarification from The SCO Group or any of it's predecessors, then only the latest terms are enforceable.

If you read all of the contracts, supplements, clarifications and side agreements, you will see that The SCO Group is making claims that aren't completely supported by the contracts.

Also, I don't think any of the contracts use the language you are using. IBM didn't sign anything that said specifically that they would not "disclose technologies that it contributed to AIX." If you read all of the agreements, the interpretation you are making is somewhat incorrect.

[Nick Danger]

to believe your "objective reality", we'd have to pretend that a company, having worked closely with IBM on Monterey and getting royally screwed over, has no institutional memory

Persons new to the thread need to understand that we are being hustled by a serial liar. The statement above by the poster Bush2000 is an attempt to mislead people by falsely asserting that there is one company here with "institutional memory."

This is not true. It is apparently in the interest of the Microsoft Corporation that people believe it, and so certain parties long associated with advancing Microsoft's interests are visting web sites around the Internet, making this false claim over and over, even after having been plainly debunked.

Here is a link to the history page of a company in Santa Cruz, CA called Tarantella. This is the company founded by Doug and Larry Michels that was known for many years as "The Santa Cruz Operation." This is the company that purchased the UNIXware business from Novell in 1995. As the history page shows, it sold that division to Caldera systems in 2001, after which it changed its name to Tarantella.

This link demonstrates that the cancellation of Project Monterey took place in, and was publicly announced in, August, 2000.

This link demonstrates that Caldera Systems of Orem, Utah, purchased the UNIXware business from The Santa Cruz Operation nine months later, in May, 2001.

That press release states that as part of the deal, the head of SCO's operating systen division, one David McCrabb, assumed the role of President and Chief Operating Officer at Caldera. He flew the coop five months later. As for the rest, this link shows what Caldera intended to do with them. "The layoffs, 19 percent of the company's work force, will occur in the parts of the business being transferred to Caldera, SCO said." There goes the institutional memory.

I do not know why it so important to certain individuals that this history be misrepresented. The modus operandi appears to include the feature that we will wait 24 to 48 hours, and then the exact same lies will be inserted into the thread again, by this or another long-term Microsoft advocate.

Microsoft itself claims to have no part in SCO's actions concerning linux. However, in a curious twist, SCO's investment banker, Morgan Keegan, had an agreement in place with SCO which states, "In the event that the Company sells equity and/or debt securities, the Company will pay Morgan Keegan placement fees (the \"Contingent Placement Fees\") payable in cash at closing." That's fairly vanilla stuff when working with an investment banker, but this isn't:

SCO and Morgan Keegan agree that, in the event Sun Microsystems and/or Microsoft enters into a substantial SCOsource licensing arrangement with SCO during the term of the engagement, that such an event would fall under provision 1(b) of our Engagement Letter. As such, the aggregate amounts paid under the license agreements would be subject to the Contingent Placement Fee, calculated as six (6) percent for a license with Sun and one (1) percent for a license with Microsoft.

So here we have an investment bank arranging "licenses" that are to be treated as "debt or equity placements" under the investment banking agreement. I'm sure there's an innocent explanation, but it's not every day that you see an investment banking house playing product salesman and calling its sales "placements." This may or may not have anything to do with why persons associated with long-term advocacy of Microsoft's interests are so interested in this case, when Microsoft itself "disavows any knowledge... of their actions." (Cue smoking audio tape).

[Bush2000]

That press release states that as part of the deal, the head of SCO's operating systen division, one David McCrabb, assumed the role of President and Chief Operating Officer at Caldera. He flew the coop five months later. As for the rest, this link shows what Caldera intended to do with them. "The layoffs, 19 percent of the company's work force, will occur in the parts of the business being transferred to Caldera, SCO said." There goes the institutional memory.

That's a clever bit of sophistry, Nicky, but that's all it is. We know that the employees from Santa Cruz Operation were absorbed by SCO. Some of them went over to Tarentella. Some were laid off. But there's no evidence to suggest that none of them went to SCO. That's your bit of sophistry.

[Bush2000]

Perhaps not in court documents. However, in public statements...

I hate to be the one to break this to you guys but ... this case is being tried in a courtroom, not in public.

IBM's contributions have already been disclosed.

Provide a reference.

The SCO Group has a right to enforce the terms of all of their contracts with IBM. However, if one section of one contract is superceded by a later supplemental agreement, or a later clarification from The SCO Group or any of it's predecessors, then only the latest terms are enforceable.

Would it be asking too much to ask for a reference?

[Nick Danger]

That's a clever bit of sophistry, Nicky, but that's all it is.

I will have to bow to your superior knowledge of sophistry. The Brass Buzzard tells me that I am now better than even you at hurling epithets, but I am humble enough to admit that I do not approach your level of skill when it comes to sophistry.

That must be why I haven't gotten a job offer yet from DCI Group, or even Waggoner Edstrom. I guess to get hired as a Microsoft Munchkin, I will have to learn how to twist the other guy's stuff into something he never said, stab that, and do it all with a straight face. I haven't gotten there yet.

[Nick Danger]

As long as you're volunteering to be a Mousketeer, Nicky, perhaps you should consider moving to Sweden

Naw, I'm staying here. If I'm gonna be a Mouseketeer, I want to be where the Mouseketeer action is... pulling the brassieres off of one-time has-beens on the Super Bowl. I don't think they have Super Bowls in Sweden.

Speaking of Mouseketeers, Disney has been making bestiality movies a lot longer than people think.