Posted on 02/07/2004 11:18:39 AM PST by cc2k
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
A very bad sign for SCO.
Wells responded. "You've made your point -- I'm just not certain I agree."
Their argument that they couldn't provide the code until IBM gave them source code to all of every version of AIX was rejected by the court.
Judge Wells ordered them to provide specific information about the code they allege has been improperly contributed to Linux. The judge made this order after rejecting SCO's request to force IBM to provide all AIX source code.
SCO has not complied with the judge's order. SCO continues to make demands that the judge has already rejected.
I think that within a week, we'll see a written opinion from the judge dismissing this case with prejudice. I don't see the judge putting up with any more of SCO's BS. JMHO.
IANAL but, it seems to me that, if it's impossible for you to prove your case, then you don't have a case.
This case may go down in history as one of the most grandiose frauds ever attempted.
On another thread, Bush2000 WroteMore information in this article for you. The judge seems very annoyed that SCO hasn't followed orders, and hasn't identified the offending code.
This trial has only begun. You're in for an extended battle.
While the SCO lawyers were giving excuses and trying yet again to get IBM's source code, the judge interrupted with, "The requirement of the court is that you provide those source codes; this is about your response to the order."
Not really a very impressive performance for SCO.
I think the only reasons the Judge didn't give an oral ruling dismissing the entire case was either that she was worried she couldn't keep a straight face while making the ruling, or that she was so angry that her order(s) were ignored by SCO that she didn't want to say something out of line. Also, she probably wants to make the dismissal order absolutely iron clad and as appeal proof as possible so that this crap never again returns to her courtroom.
I could be wrong, but it will be interesting to see what kind of written ruling is delivered this week.
This is either a misquote, or a mis-statement by IBM's attorney. It should be 17 files. I believe the 17 files in question contain about 3700 lines of code -- substantially less than the "million(s?) of lines of code" claimed by McBride as recently as his speech at Harvard (and was quoted in court by IBM).
17 lines of code wouldn't constitute a substantial infringement, and certainly not worth $5 billion.
SCO legal strategy, as applied to the real world:
"Officer! He stole my stuff!"
"OK, what exactly are you saying he stole?"
"I don't know, but he stole something of mine! Get one of your SWAT teams with a battering ram so I can look in his house and see if I recognize any of the stuff he stole!!"
justlurking wrote:I don't know what was in SCO's answers to the interrogatories in response to the December order from the judge. I suspect it was more than 17 lines, but I don't know exactly how much more.
This is either a misquote, or a mis-statement by IBM's attorney. It should be 17 files. I believe the 17 files in question contain about 3700 lines of code -- substantially less than the "million(s?) of lines of code" claimed by McBride as recently as his speech at Harvard (and was quoted in court by IBM).
taxcontrol wrote:
What I noticed was that the claim has dropped from "millions of lines of code" down to 17. Further, they can show the 17. Makes you go, Hmmmmmm.
SCO has filed a Second ammended complaint which includes reference to some code that they allege is misappropriated. In that complaint they reference about 26 separate sections of code, totalling several hundred lines that they allege some (still unspecified) rights to.
This article either has a misquote about that, or the IBM guy misspoke, or possibly the 17 line figure might refer to lines that SCO has identified as infringements and to which SCO has explained the nature of their rights. Since the actual replies to the interrogatories are probably covered by a gag order of some kind, we may never know exactly what their answer contained.
You're just as funny as Heise.
Heise countered that "not everything they have put into Linux is public,"...
So where's this super-secret Linux kernel distribution that's got all of the super-secret infringing code in it?
IBM is going to try and stall this as long as it can.
Your kneepads are really getting worn out, dude.
SCO was ordered to disclose evidence that it doesn't have. SCO just wanted to go fishing. Now SCO is begging to be allowed to wiggle out of that part of the lawsuit. SCO wants to change the suit to something that might require SCO vs. Novell to be resolved first.
Who's stalling again?
Unfortunately for Darl, IBM's managers remember their Kipling.
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