SCO's suit not all that simple

    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

Wells responded. "You've made your point -- I'm just not certain I agree."

A very bad sign for SCO.

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.

it is literally impossible" for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum

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 Wrote
This trial has only begun. You're in for an extended battle.

More information in this article for you. The judge seems very annoyed that SCO hasn't followed orders, and hasn't identified the offending code.

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.

"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."

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.

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 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:
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.

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.

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.

It is much simpler than SCO is making it out to be.

I'm in a busines with lots of intellectual property licensing involved. The first thing you do is detail to an infringer what they are doing wrong, and tell them to stop.

If they don't stop, you threaten to sue, and then sue.

If SCO can't say "Lines N through M in file X are copied from a Unix version we have rights to, and here is our file to compare against." they have NO CASE.

So far, despite the fact that every line of every version of every file that ever was in Linux is publicly availble, they have not done so. Any other case would have been thrown out long ago. This one lives on only due to publicity.

This is either a misquote, or a mis-statement by IBM's attorney. It should be 17 files.

It's a deliberate subterfuge by IBM.

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.

Try thinking: The "17 files" that SCO cited are only a small part of the infringing set of files. SCO knows that IBM contributed a helluva lot more code than that. What is IBM so afraid of? Why not disclose its contributions if it had a right to make them? Answer: IBM is going to try and stall this as long as it can.

SCO's amended complaint hangs on a very slender thread:

None of the lines of code they cited are from SysV UNIX. All were pre-existing IBM technologies and code, like the Journaling File System from OS/2.

IBM's license has specific provision that code they contribute to UNIX remains IBM property.

If that is cogently pointed out to the judge, this could be over very quickly.

There are no "millions of lines." SCO was told to put up, and this is all they could come up with.

SCO could also be sanctioned: They deliberately mislead the court, changed course in discovery, and threw up a cloud of FUD instead of making a straightforward demand that IBM stop infringing on specific intellectual property. They are two steps past bad faith.

IBM did disclose everything it contributed to Linux. It's all in the version logs.

SCO is not sandbagging, they are about to be kicked out of court. Sell your stock now IANASB(I am not a stock broker).

Further misleading statements by SCO relate to AIX source. They already have several versions that should contain their code (if it's there). They claim they need EVERYTHING. Knowing full well IBM has similar technology agreements that prevent them from simply dumping it all on 9 track in EBCDIC and seeing if anybody at SCO has any tech smarts at all (I've long ago done this to answer a sopena, it was the raw data, same way I got it).

Try thinking: The "17 files" that SCO cited are only a small part of the infringing set of files. SCO knows that IBM contributed a helluva lot more code than that.

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?

I guess that I just don't get this...

First off, IIRC, IBM has (or, at least, had) a source code license to incorporate features of UNIX into AIX. That's a given... However, SCO claims that proprietary code from UNIX made its way into Linux from IBM.

SCO can easily show which lines of code are IP from UNIX, since Linux is open source. And comparisons could easily be made with the original source code, by people hired by the courts from different computer corporations and universities, which already have source code licenses and NDAs.

It seems to me that SCO's plan from the beginning was for this suit to be nothing more than a "burr under the saddle" for IBM, which SCO hoped that IBM would just "pay them to go away."

Mark

It seems to me that SCO's plan from the beginning was for this suit to be nothing more than a "burr under the saddle" for IBM, which SCO hoped that IBM would just "pay them to go away."

Unfortunately for Darl, IBM's managers remember their Kipling.

None of the lines of code they cited are from SysV UNIX. All were pre-existing IBM technologies and code, like the Journaling File System from OS/2. IBM's license has specific provision that code they contribute to UNIX remains IBM property. If that is cogently pointed out to the judge, this could be over very quickly.

Like most of the other pro-Linux dweebs around here, you simply don't understand what this case is about. It's not about whether IBM violated SCO copyright. SCO is alleging no such thing. What SCO is claiming is that IBM took code, added it to AIX/Dynix, then took the code and added it to Linux. SCO maintains that its contract with IBM precludes IBM from distributing technologies that IBM incorporated into AIX/Dynix.

I'm not surprised that you guys can't wrap your heads around this thing. It does take a few brain cells, after all.

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?

We've been through this before. The source logs for the Linux kernel are what's known as hearsay evidence. They're not verifiable. There's no way to establish a chain of custody from IBM to the source repository. SCO is asking IBM to produce a log -- aka primary evidence -- of the sources that it contributed. IBM refuses to do this. So, again, I ask: Why?!? What is IBM afraid of? If they didn't do anything wrong, why can't they simply produce the code?!? Answer: Because they know they violated the AT&T/SCO contract and they're dragging their feet.

IBM did disclose everything it contributed to Linux. It's all in the version logs.

No, that's a blatant lie. IBM is saying that SCO should go to the source logs, itself. But as I pointed out in the previous post, that is hearsay evidence and isn't suitable. Even if SCO were to do that, IBM would immediately claim that the source logs aren't verifiable. Anybody could have contributed the source code.

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SCO's suit not all that simple

By Bob Mims The Salt Lake Tribune

By Bob Mims
The Salt Lake Tribune