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

[eccl1212]

my version of inode, has 1342 lines of code.
all variations of what MOST unix folks would do in order to accomplish a certain task.

It has lists of includes, and includes ifs and then operations to perform on those lists if this or that.


from a quick tally MY guesstimate would be that at best SCO would try to claim that 148 of those lines of code were origninally theirs.

First of all, it's open source so even the judge will probably be able to figure it out, plus anybody could have written it intuitively, just as it is in my file version, IF versed in that type of programming. If twenty guys were asked to write 1300 lines of code to do a specific thing over and over again, MY GUESS would be that all 20 would have at least 10 percent of their code line operations similar or close to identical.. far more identical than the four lines equals eleven lines "bits and pieces" that SCO is puporting in their examples.

The more I read the history of this put up job, they seem to come across like a bride on suicide watch at the local church altar because Jimmy ran off with his secretary. They are just ticked because they were "dumped" at the proverbial alter, business wise... and their exaggeration of what REALLY was done is very similar to the blown up assertions made by jilted lovers and scorned women in the realm of human relationships.

SCO shoulda got a prenup... it sure looks like IBM did...

[Bush2000]

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?

I don't know why I bother with you. After all, you're a suit. Not a developer. But let's put this in perspective. You can certainly browse the contributions that are out on the server, Nicky. But that's not the point. The sources can be -- and are -- modified by lots of people -- not just IBM. When some IBM dev makes a change, another non-IBM developer makes a change, another IBM dev makes a change, ad infinitum. Many times, the changes overlap. IBM dev makes changes to those contributed by non-IBM devs. Oh, my. We have a problem, Houston. It gets harder over time to extract out what IBM contributed and what non-IBMers contributed. The source diffs get intertwined like a snake.

But that's just the reality of software development, Nicky. You don't need to worry about this. You push the intercom and buzz down to the basement, where the intellectual horsepower is located, and ask the lead dev whether he can show you how to take your computer out of the box and install Linux -- and could you goddamned hurry, you've got a sales meeting in an hour. I've met guys like you before. Personally, I think every dev should be issued emergency anti-nausea medication (or an epi-pen) around suits -- to ram into our own hearts when we just can't take your bullsh*t anymore.

I never suggested that extracting IBM's contributions was an impossible task; HOWEVER, it's really a pointless exercise given that *IBM* knows better than anybody what *IBM* contributed. HENCE, it makes more sense for IBM to simply hand over the tapes. But it won't do that, because its platoons of lawyers have told it, "No, dudes. Don't volunteer anything. Let SCO come to us with proof. If we can hold them in a rope-a-dope long enough, maybe the judge will throw this thing out."

[Bush2000]

They are just ticked because they were "dumped" at the proverbial alter, business wise...

Doesn't look a whole lot different from ...

"[Netscape, Novell, Lotus, Corel, IBM, RealNetworks, Apple, AOL, Sun] is just ticked because they got left at the proverbial altar, business wise...

You guys are so transparent. But, really, you don't have to make excuses. You only care about winning. About grabbing whatever you can get. The rationale is just window-dressing. /SARCASM

[eccl1212]

do you mean "if you aren't guilty than you have nothing to hide," right? Sorry B2k, thas not how it works here in the USA.

Perhaps you could try that in some third world country. IBM won't do it for many reasons, some of which may include:

• WHY should they expose their product to anybody's scrutiny, until ordered to do so lawfully?
• They won't at this point, BECAUSE THEY don't have to.
• Plus it's added expense.
• It sets a bad precedent in their business market.
• It sends a wrong signal to the lilliputians, that IBM is vulnerable when it isn't and thus they don't want to act on a lie.
• It would propogate a lie to their clientelle, that IBM, UNIX and LINUX are not rock solid in the enterprise... when in fact they are.

Having said that, when issued a court order lawfully SCO does have a requirement to PUT UP OR ELSE. And they have made it clear that they either do NOT want to, or actually cannot make their case to begin with. Now perhaps we will begin to see why. < / snickers >

PS I don't believe IBM stole anything. Not for a moment. But, I do believe that SCO is trying to do just that. I believe they, and their backers are headed for big trouble.

And YES, I have been wrong before, and could be wrong now. But I worked with a lot of unix, irix, hp and other "programmers" starting back decades ago, and for many years. My gut feeling is, this is a grift by a lilliputian. Inspired by-- someone else

[eccl1212]

The difference is, I am convinced that MS was guilty of what they were accused of. And IBM isn't.

[Interesting Times]

I don't know why I bother with you. After all, you're a suit. Not a developer.

Just out of curiosity, how do you know that Nick Danger is a suit and not a developer?

Answer carefully; you're already leaking credibility from every orifice.

[Nick Danger]

according to the contract that IBM signed with AT&T/SCO, it was not permitted to redistribute technology that was incorporated into AIX.

That's not what the contract says, is it? Could this possibly be the fourth deliberate falsehood that you have tried to insert into this discussion? Let's see if we can find out.

Section 2.01 of the "contract that IBM signed with AT&T," states, in relevant part, "Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT."

This language is silent on the subject of "technologies." It concerns something else entirely, to wit "derivative works."

There are four things we can say about this:

• AT&T subsequently amended that section by sending IBM a letter which states, "Regarding Section 2.01, we agree that modifications and derivative works prepared by or for you are owned by you. However, ownership of any portion or portion of SOFTWARE PRODUCTS included in any such modification or derivative work remain with us." In other words, what IBM wrote is IBM's and what AT&T wrote is AT&T's. This is very similar to the treatment of 'derivative works' under copyright law.
• AT&T also sent out a similar letter to all its UNIX licensees, including Sequent Computer, apparently in anticipation that Microsoft shills would later claim that the amendment letter applied only to IBM.
• The AT&T contract is silent on the definition of "derivative work." However, the contract under which Caldera Systems (now SCO Group, Inc.) purchased certain assets of the Santa Cruz Operation, states specifically that "'Derivative Works' shall have the meaning set forth in the United States Copyright Act, 17 U.S.C. Section 101, et seq." . This limits "derivative work" to items which contain exact copies of portions of the original work. Ideas, concepts, technologies, etc., are not copyrightable. If SCO cannot find literal copying of System V UNIX into linux, it has not found a derivative work, and can make no claim under Section 2.01.
• The Asset Purchase Agreement under which the original Santa Cruz Operation purchased the UNIXware business from Novell includes provisions which allow Novell, not SCO, to determine what constitutes a breach of contract. In particular, Novell can order SCO to waive such things, and if SCO does not do so, Novell can do it for them. We now know that Novell in fact ordered SCO to forget about this, and when SCO said 'stuff it', Novell served notice that it had acted on SCO's behalf to waive the issue. SCO would like to pretend that this lanuage does not exist, but unfortunately for them it is in black and white in the contract, leading to speculation that a judge will conclude that SCO is nuts for claiming that it isn't there.

It therefore appears that the contract does not say what you said it does; it was subsequently amended to make it clear that IBM retained ownership to the code it wrote; a subsequent contract which the SCO Group entered into defined "derivative work" to mean "the definition in Copyright Law," which cannot mean what you said it does because copyright law does not deal with "technologies" but only with specific expressions.

Based on these facts, I think it is fair to conclude that you did indeed attempt to mislead people by inserting yet a fourth falsehood into the thread.

[eccl1212]

We have a problem, Houston. It gets harder over time to extract out what IBM contributed and what non-IBMers contributed. The source diffs get intertwined like a snake.

---

We sure do, because if the code gets modified over a certain percentage, than the first guy who worked on it, cannot claim the finished product is a derivative of his own. By law, significant modification creates a new and different product under the law. You can post an entire washington post article here, if you change at minimum a percentage of the words. Sixty people can publish AS THEIR OWN versions KNOWN to be the atkins or long beach diet IF THEY CHANGE IT.

You can take a book or any copywritten item and modify it and publish it as your own work if you modify it enough by law. And I am rather sure there is a specific percentage of content threshold. Letters, digits, lines of code that are basic code language functions CANNOT be copyrwritten. PERIOD. Unless they are more than similar in a percentage less than "x" amount.

and if the product in question is revised over 50 percent, I am rather sure it's no longer even a code edit, it's legally considered entirely new code. IN FACT I seem to recall its something less than 30 percent. And what is identical has to be left in the same exact order.

ie:

"Birthday Happy you to," sung to the tune of "greensleeves" for a few bars, would not be a violation of the writer's song we all sing today. General concepts cannot be copywritten, only verbatims can be enforced.

If I am not seeing verbatim infringments, it's doubtful the judge will.

Different Question: IF SCO loses, what will be their most likely route for appeal?

[eccl1212]

This kinda reminds me of the guy who paid 25 for the CD of music, and given persmission to duplicate and sell it himself, suing the artist for giving copies away for entirely free with similar terms to somebody else.

[Bush2000]

do you mean "if you aren't guilty than you have nothing to hide," right? Sorry B2k, thas not how it works here in the USA.

I'm well aware of IBM's rights, dude. Nothing that we say here is going to deprive IBM of their rights. What I've been asking all of you is whether you support the idea of IBM handing over the sources that it contributed to Linux. All that I hear from you are excuses about why IBM might not do it, all of which are completely at odds with discovering the truth in this case. After all, if (as you all say) IBM's contributions are out in the open, anyway, then IBM has no reasonable argument in defending non-disclosure.

What is clear here is that pro-Linux advocates don't really want the truth, can't handle the truth. Because there's a very good possibility that IBM violated the AT&T contract and put the entire the Linux community in jeopardy. God forbid we should uphold SCO's legal rights. God forbid that IBM should actually disclose what it did.

[Bush2000]

We sure do, because if the code gets modified over a certain percentage, than the first guy who worked on it, cannot claim the finished product is a derivative of his own. By law, significant modification creates a new and different product under the law. You can post an entire washington post article here, if you change at minimum a percentage of the words. Sixty people can publish AS THEIR OWN versions KNOWN to be the atkins or long beach diet IF THEY CHANGE IT.

So what. That's irrelevant. It doesn't alleviate IBM of liability if it violated the contract.

Different Question: IF SCO loses, what will be their most likely route for appeal?

Unclear. I doubt seriously that this case is going away anytime soon.

[Bush2000]

Just out of curiosity, how do you know that Nick Danger is a suit and not a developer?

Because he and I have exchanged correspondence about his involvement in venture capital and other suit-like activities.

[Bush2000]

The difference is, I am convinced that MS was guilty of what they were accused of. And IBM isn't.

How did you conclude that IBM isn't convinced that MS was guilty of what they were accused of? ;-p

[Nick Danger]

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.

Oh, no, not again.

Here is deliberate falsehood number 5 from a guy who just doesn't seem to be able to tell the truth about anything.

He's hoping that Freepers won't know that the company which now calls itself "SCO" is not the same company which particpated with IBM in Project Monterey. That was a different SCO, the so-called "Santa Cruz Operation" of Xenix fame which is still in Santa Cruz but now calls itself Tarantella. The theiving, lying lawyers who now call themselves "The SCO Group, Inc." are totally different people, in Lindon, Utah, who used to be known as Caldera Systems. Mostly what they do is lie to people and steal things. I can say that because they are in the late stages of a class-action suit related to their original public offering. They are accused of fraud, and all the usual stuff that one would expect from lying sleazeballs.

It is important, for the purpose of exposing yet another falsehood from Bush2000, to know that Caldera Systems purchased the UNIXware business from the Santa Cruz Operation after the cancellation of Project Monterey was public knowledge. They cannot claim, as Bush2000 does, that this was a surprise, or that anyone stabbed them in the back. It was right out in the open before they signed the papers. They had every opportunity to factor the cancellation into the price they paid. If the Santa Cruz Operation snookered them into paying more then they should have for a 20-year-old bag of obsolete code, that is not IBM's problem, and no judge will hold IBM responsible for it.

But wait, there's more! When Bush2000 says, "dump all of its technologies into Linux and devalue SCO's product," he is hoping that you don't know that Caldera employees, as part of their employment with Calders Systams, Inc., were busily porting this stuff to linux. Who was the biggest contributor to the port of IBM's JFS to linux? Caldera employee Christoph Hellwig! Did his boss know he was doing it? Yep. They bragged about it at the time.

Do a Google on "Ransom Love" sometime. He was a co-founder of Caldera Systems and Darl McBride's predecessor as president of The SCO Group. See if it sounds to you like Ransom Love was going around giving speeches about how Caldera was porting all sorts of goodies into linux, and loving every minute of it. After doing that, ask yourself why Bush2000 would lie to you about poor, downtrodden SCO getting shafted by the Linux Nasties.

[Nick Danger]

What are you afraid of? Show us the sources.

Anyone can download linux sources from any of several web sites. You are not so ignorant that you do not know this. Therefore you are deliberately lying. You've been doing a lot of that on this thread. Arm-waving, emotional hoo-hah, and lying. That's pretty much your whole act here. In case you didn't know, it's disgusting.

[RJL]

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?

More importantly than you repeatedly asking this, the judge keeps asking SCO to produce, but SCO "hides in their lawyers skirts" and they're "afraid of the truth". The way SCO keeps delaying and delaying, it almost seems like Darl's stock options don't come due for several months. Oh yeah, that's right, Darl's stock options don't come due for a while yet, so he has to keep pumping SCO's stock before he can dump them and cash in.

Bush 2000, Are you really the Iraqi spokesman Baghdad Bob?
Baghdad Bob kept ranting and raving that there were no Americans in Iraq even as the American tanks drove into the picture behind him. You and Bob have many of the same characteristics.

[Nick Danger]

It is not a falsehood to assert that many other developers contributed sources to the Linux kernel.

Has it come to this? Now you're even lying about what you said yourself in this very thread. So far as I know, Note 22 is still there. It still has you saying, "Unwrapping the sources from all submitters isn't a trivial operation," a claim which I demonstrated to be false.

I shall stipulate that your use of the terms "the" and "a" do not by themselves constitute lies, so it can never be true that everything you say is wrong. You do, however, seem to be approaching 100% asymptotically, at least in this thread.

[Nick Danger]

But that's not the point. The sources can be -- and are -- modified by lots of people -- not just IBM.

Stop lying about this. No matter what anyone does subsequently, the original contribution, in its original state, is still there. That's how source code control systems work. Perhaps you don't know that, because you're a suit. I wouldn't know about that.

You push the intercom and buzz down to the basement...

Is this your idea of cogent comment? It's arm-waving hoo-hah, the only thing you seem to know how to do tonight except lie. You don't know what I do, you don't know what my life is like, so stop trying to act like you do. It borders on lying.

it makes more sense for IBM to simply hand over the tapes.

What part of "the judge has told them not to" don't you understand? I posted a link to the court order the last time you tried to sell this crock. Read it, willya? BY ORDER OF THE COURT, all discovery is STAYED until the judge is satisfied that SCO has complied with the other terms of the court order. They haven't done that yet. They've pretty much said they can't. I don't know what happens to Plaintiffs who do not comply with a judge's order. I think it's probably something bad.

I realize how frustrating it must be for a Microsoft Munchkin to watch helplessly as the millions that Microsoft poured into this outfit, in anticipation of a first-rate FUD campaign against linux, go right down the tubes when it turns out that the legal weasels are incompetent jerks who are getting squashed like a bug. OK, so they stung Microsoft for a few hundred million. I guess Microsoft's lawyers aren't very good if they can be had by this bunch from Lindon. Look how incompetent they are! How did Bill's finest ever get taken by these jerks?

[Bush2000]

Oh, no, not again. Here is deliberate falsehood number 5 from a guy who just doesn't seem to be able to tell the truth about anything. He's hoping that Freepers won't know that the company which now calls itself "SCO" is not the same company which particpated with IBM in Project Monterey. That was a different SCO, the so-called "Santa Cruz Operation" of Xenix fame which is still in Santa Cruz but now calls itself Tarantella.

Hey, don't believe me. Get yer kneepads out and kneel before Linus Torvalds, courtesy of Groklaw:

"I think there was a fair amount of bad feeling when IBM dropped out of the Monterey project [a joint-development project with SCO]. That was a big deal for SCO, and they had a hard time with that. Never mind the fact that it had long since become clear that the project wasn't going anywhere, and IBM would have been crazy to continue with it.

"So you have some pent-up anger at IBM, a failing business that was losing its market, and put it together with a greedy new CEO who has fought legal battles before, and what do you get?"

Try spinning that, ratboy.

[Fledermaus]

Serious thread chatter.

I have just one question...who the heck is SCO?