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SCO's suit not all that simple
Salt Lake Tribune ^ | 02-07-2004 | Bob Mims

Posted on 02/07/2004 11:18:39 AM PST by 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


TOPICS: Business/Economy; News/Current Events; Technical
KEYWORDS: ibm; linux; linuxlusers; sco
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To: TechJunkYard
Appeared in OS/2 two years before it was put into AIX. If SCO does indeed have the right to the AIX implementation as a derivative work (if it incorporates any part of AIX), it has no rights to the original IP in OS/2, in development six years before the AIX port. OS/2 is clearly identified as the parent source base for the Linux port.

If the code that went into Linux is the same code that went into AIX, IBM is in violation of the contract. That little shell game isn't going to fool anybody.

Why do you closed-source folks continue to support SCO's efforts to steal from Open Source?

I don't support stealing. But I do support SCO's right to have a fair hearing.
41 posted on 02/08/2004 7:53:58 PM PST by Bush2000
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To: cc2k
What IBM has requested, and what the judge has ordered must be answered before any other discovery can proceed, is for The SCO Group to identify exactly what code they claim proprietary interests in and the nature of the rights that The SCO Group claims to that code.

In other words, IBM is doing its best to withhold what it contributed to Linux. What is IBM hiding?
42 posted on 02/08/2004 7:55:53 PM PST by Bush2000
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To: cc2k
The problem is that at this time it is impossible for IBM or the judge to determine if any of the requests for production from The SCO Group are relevant to the case. This is because The SCO Group hasn't identified exactly which code is in dispute, so nobody (not IBM, and not the judge) knows whether their requests are relevant and important, or irrelevant or potential "fishing expeditions."

There's an easy way to resolve the situation: Simply have IBM release all of the sources that it contributed to Linux. Do you seriously oppose that? If so, why? What's wrong with informing SCO what IBM contributed? It's "open source", right? What do you have to lose?
43 posted on 02/08/2004 7:57:53 PM PST by Bush2000
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To: Bush2000
You quoted the following:

"The new Journaled File System, on which the Linux port was based, was first shipped in OS/2 Warp server for eBusiness in April, 1999, after several years of designing, coding, and testing.

Under what theory could IBM lose the right to use this technology in other products? This isn't a "derivate work" under any normal definition.

"Derivative work" means you modify something you have licensed and therefore cannot claim that your modification is solely owned by you. JFS was very clearly developed outside of AIX and used in a variety of other systems before and after it was used in AIX.

44 posted on 02/08/2004 8:02:17 PM PST by eno_ (Freedom Lite - it's almost worth defending)
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To: Bush2000
IBM is going to try and stall this as long as it can."

Exactly! God will roast their stomachs in hell!

45 posted on 02/08/2004 8:03:10 PM PST by Tribune7 (Vote Toomey April 27)
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To: eno_
Under what theory could IBM lose the right to use this technology in other products? This isn't a "derivate work" under any normal definition.

IBM signed a contract stipulating that, once it incorporated code into AIX, the code would be considered part of AIX and subject to restrictions on distribution.
46 posted on 02/08/2004 8:08:20 PM PST by Bush2000
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To: TechJunkYard
because that is what their master "willie the g" has been doing for years. Coopting code and new ideas from "partners" and then running them down the tubes.

NOT once but many times.
Hence the reason why MS ended up in court trying to defend an illegal monopoly.

47 posted on 02/08/2004 8:24:07 PM PST by eccl1212 ( "anybody else wanna negotiate?")
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To: Bush2000
There's an easy way to resolve the situation: Simply have IBM release all of the sources that it contributed to Linux.
better idea. just have sco obey the court order or face dismissal with prejudice, which is how this will turn out.

They have clearly thumbed their noses at the judges lawful orders.

It is not going over well.

48 posted on 02/08/2004 8:27:41 PM PST by eccl1212 ( "anybody else wanna negotiate?")
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To: eccl1212
better idea. just have sco obey the court order or face dismissal with prejudice, which is how this will turn out. They have clearly thumbed their noses at the judges lawful orders. It is not going over well.

Again, are you opposed to IBM simply releasing the sources that it contributed to Linux? If so, why? Aren't you interested in the truth here? Or is this simply about railroading a company that you guys despise? Which is it?
49 posted on 02/08/2004 8:29:39 PM PST by Bush2000
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To: Bush2000
The truth is, ibm will NOT be required to prove it is innocent. The burden of a preponderance is not theirs.

There is not one line of code that is in linux that cannot be opened, printed out, and read into the court record by anyone speaking english. Sco has refused to simply open up the code and prove the preponderance. WHY? "because it would be hearsay?" please.

They have refused or claimed inability to show their allegations, in response to the judge's lawful court orders. WHY?

AS to railroading a company "despised?" If you are talking about the generalized belief amongst IBM'rs and the rest of the UNIX community, including linux and a host of other Open source Sims... I am quite sure you know the underlying theories and assumptions as well as anyone else.

If Unix, in most, if not all, of it's flavors, and IBM were to fall before SCO (as a suspected sock puppet "sledgehammer" of willie the g's), it could really improve or resuscitate MS's ever expanding desire for new horizons. A horizon that at date is clouded and threatening to former MS dominance of the market.

"Prove you are not guility of what I might accuse you of doing AFTER I go through every detail of your private and proprietary business affairs," never went over well in this country, on a personal or corporate level.

I wouldn't begrudge you or any other MS afficionado of hoping this SCO suit would somehow turn out to benefit your "favorite" source of income, but I do hope you are preparing for other potential outcomes.

And a guy with your programming skills will no doubt have zero difficulty should the likely become inevitable.

This will come to court sooner if IBM has their way, than it will if SCO has their way, THEY are the ones that from a legal standpoint of the judge, are stalling against the lawful court order.
50 posted on 02/08/2004 8:55:46 PM PST by eccl1212 ( "anybody else wanna negotiate?")
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To: Bush2000
    [justlurking]: This is either a misquote, or a mis-statement by IBM's attorney. It should be 17 files.
[Bush 2000]: It's a deliberate subterfuge by IBM.

[IBM]: In the final analysis, SCO has identified no more than approximately 3,700 lines of code in 17 AIX or Dynix files that IBM is alleged improperly to have contributed to Linux. --Source

The careful observer will note that the poster Bush2000 represented as fact something that he did not know. He did not check, he just told a lie, as if it were true. He will now call me a name for catching him doing this.


51 posted on 02/08/2004 9:01:58 PM PST by Nick Danger (clank furry quad barbecue)
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To: Bush2000
SCO is asking IBM to produce a log -- aka primary evidence -- of the sources that it contributed. IBM refuses to do this.

The careful observer will note that this the second deliberate falsehood that the poster Bush2000 has attempted to insert into this discussion.

IBM has not refused to produce relevant portions of AIX code. The problem is that no one can tell what items are relevant, because SCO has refused to state with any particularity what its charges are. As the judge put it during the December 5 hearing, "None of us know." That is why the judge stayed all discovery until SCO produced the items that the court ordered them to produce.

The court order requiring SCO to state its charges with particularity, and staying all other discovery until SCO complies, is here. The falsehood posted by Bush2000 is in Note 19.

52 posted on 02/08/2004 9:32:28 PM PST by Nick Danger (clank furry quad barbecue)
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To: eccl1212
The truth is, ibm will NOT be required to prove it is innocent. The burden of a preponderance is not theirs.

Thanks for clearing that up, Slick. I see. You guys aren't interested in the truth. You're going to hide behind your lawyers' skirts like a bunch of weasel Democrats.

There is not one line of code that is in linux that cannot be opened, printed out, and read into the court record by anyone speaking english.

IBM's contributions to Linux aren't flagged with some kind of blinking sign ("Hey! Look! This is IBM submitting this checkin! Are you paying attention here?!? Look, yo, IBM here!"), so extracting out the contributions from individual IBM contributors isn't a trivial thing. They're interspersed with countless contributions from other folks. Worse, those other folks, themselves, made changes to the IBM contributions -- so, honestly, don't pretend that this is a trivial or obvious thing to do.

Sco has refused to simply open up the code and prove the preponderance. WHY? "because it would be hearsay?" please.

See above. And, yeah, since you guys are playing the lawyer game, it is hearsay. Quite predictably, IBM would insist that the chain of custody on the contributions isn't verifiable and, consequently, the evidence would have to be treated as hearsay. This would open up another battle of discovery over IBM's internal source logs. Which would cause earnestly-seeking-the-truth IBM to drag its feet for another 6 months.

I wouldn't begrudge you or any other MS afficionado of hoping this SCO suit would somehow turn out to benefit your "favorite" source of income, but I do hope you are preparing for other potential outcomes. And a guy with your programming skills will no doubt have zero difficulty should the likely become inevitable.

Frankly, I could care less who wins. My fortune was secure back in the 90s when all of the hucksters were pumping the Internet stocks. Whether IBM or SCO or MS or Sun or whoever wins is inconsequential to me. But, from my point of view, it's pretty freaking sleazy of IBM to talk SCO into working on Monterey, stick a shiv in SCO's back, and pull out of Monterey -- and then, to add insult to injury, dump all of its technologies into Linux and devalue SCO's product. You guys probably stand around the water cooler and yuck it up about that, curse the "evil M$", and imagine that you're supporting some kind of grandiose, pure cause. But you're not. You're merely supporting one huge hardware behemoth that could really give a crap about Linux and open source.
53 posted on 02/08/2004 9:37:21 PM PST by Bush2000
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To: Nick Danger
The careful observer will note that the poster Bush2000 represented as fact something that he did not know. He did not check, he just told a lie, as if it were true. He will now call me a name for catching him doing this.

IBM has already admitted publicly that it contributed the NUMA and JFS sources to AIX, Nicky. And, now, they're playing legal chicken with SCO in order to avoid disclosing the sources. The careful observer will recognize that your side will do anything to avoid disclosing the sources. Why, Nicky?!? Why? What are you afraid of? Show us the sources. Let the public decide who's lying here.
54 posted on 02/08/2004 9:42:45 PM PST by Bush2000
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To: Bush2000
Table A

AIX 9922A_43NIA File Line #s Linux 2.2.12 ref/File Line #s
usr/include/jsf/inode.h 16-37 include/linux/jfs/ref/jfs_inode.h 84-95,
126-138
kernel/sys/vnode.h 109-133 include/linux/jfs/ref/jfs_inode.h 96-122
usr/include/jsf/inode.h 39-40 include/linux/jfs/ref/jfs_inode.h 189-90
usr/include/jsf/inode.h 161-166 include/linux/jfs/ref/jfs_inode.h 414-421
usr/include/jsf/inode.h 172-180 include/linux/jfs/ref/jfs_inode.h 37-48
usr/include/jsf/inode.h 199-205 include/linux/jfs/ref/jfs_inode.h 52-59
usr/include/jsf/inode.h 62-66 include/linux/jfs/ref/jfs_inode.h 286-290
usr/include/jsf/inode.h 72-76 include/linux/jfs/ref/jfs_inode.h 295-302
usr/include/jsf/inode.h 83-158 include/linux/jfs/ref/jfs_inode.h 322-411

here we have a sample of what THEY say was stolen. for example lines 72-76 (four lines of code) are being claimed as identical to lines 295-302 (seven, and those in a completely different order).

if this is the best they have, they have NO prayer of winning. if twenty unix grammers put together a program tha twas to perform any similar function, any 19 of them would have used some of the same sytax and probably MORE consistant order of operations from line to line.

Won't fly.

Now I see why the didn't want to expose their "position".

55 posted on 02/08/2004 9:44:53 PM PST by eccl1212 ( "anybody else wanna negotiate?")
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To: Bush2000
There are many contributions from folks who aren't involved in this litigation. Unwrapping the sources from all submitters isn't a trivial operation.

The careful observer will note that this is the third deliberate falsehood that the poster Bush2000 has attempted to insert into the discussion.

All changes to the linux kernel, no matter how trivial, along with their authors and the date & time of submission, are logged. The log is available on line. It is searchable. You can search it yourself here. Try it. Satisfy yourself that the even the tiniest change can be "unwrapped" by submitter. Then ask yourself... who are you going to believe, Bush2000, or your own lying eyes?

56 posted on 02/08/2004 9:50:31 PM PST by Nick Danger (clank furry quad barbecue)
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To: Bush2000
But, from my point of view, it's pretty freaking sleazy of IBM to talk SCO into working on Monterey, stick a shiv in SCO's back, and pull out of Monterey -- and then, to add insult to injury, dump all of its technologies into Linux and devalue SCO's product.
Yes, and that sounds a LOT like what many of us believe that MS has done to companies like Sun for the past decade or more.

From what I have seen, it looks like SCO got "better mousetrapped" out of the loop, and is now upset because the new mousetrap uses wood and springs to help kill the the mouse.

"Hey unix and big blue, you guys used three "do while" loops in your code, and in my version of a file that does something similar, I used it once, with out that "else" statement... Even though your code has sixteen extra lines and no ELSE statment, YOU MUST HAVE STOLEN MY IDEA!" type of stuff ain't copyright infringing.

57 posted on 02/08/2004 9:55:11 PM PST by eccl1212 ( "anybody else wanna negotiate?")
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To: eccl1212
if this is the best they have, they have NO prayer of winning...

You're changing the subject. I asked you why IBM can't produce the sources that it contributed to Linux. Again, why not? Why the need to hide behind the lawyers? What is IBM hiding?
58 posted on 02/08/2004 10:07:15 PM PST by Bush2000
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To: Nick Danger
The careful observer will note that this is the third deliberate falsehood that the poster Bush2000 has attempted to insert into the discussion.

Do yourself a favor, Nicky, and don't strain yourself thinking about these issues. It is not a falsehood to assert that many other developers contributed sources to the Linux kernel.
59 posted on 02/08/2004 10:08:11 PM PST by Bush2000
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To: eccl1212
Yes, and that sounds a LOT like what many of us believe that MS has done to companies like Sun for the past decade or more.

Let's not kid ourselves here: You guys are long on moral relativity and short on righteousness. The fact remains that, if IBM broke its contract with AT&T/SCO (and it sure looks that way), you guys could care less about screwing the little guy. It's all about what you can grab, what you can take from the spoils. So, really, don't kid yourself that you're taking the high ground; in fact, you're slumming with IBM.

From what I have seen, it looks like SCO got "better mousetrapped" out of the loop, and is now upset because the new mousetrap uses wood and springs to help kill the the mouse.

Funny how you guys used to scream like cheerleaders cut from the squad when MS supposedly "knifed the baby" over at Netscape -- but you don't have any problem with IBM sticking a shiv in SCO. Nice, at least your hypocrisy is out in the open, where everyone can see it.
60 posted on 02/08/2004 10:14:15 PM PST by Bush2000
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