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Update: SCO/IBM Discovery Process Continues
Groklaw / ZDNet Australia ^ | 3 june 2004 | Pamela Jones/ZDNet Australia

Posted on 06/03/2004 9:13:13 AM PDT by ShadowAce

SCO Begs the Court for More AIX Code

Wednesday, June 02 2004 @ 08:06 PM EDT
Now we know what SCO's Memorandum Regarding Discovery is. It's SCO begging the court once again to give it yet more AIX code, saying that " . . .because AIX's code does not contain any historical comments, or at least the AIX code provided did not, SCO has had difficulty determining all the portions of AIX that were taken from UNIX System V."

Once again, they think it's probably the case that they could find more infringing code if they just had more AIX code, plus comments, revision control systems, interim versions of AIX and Dynix, design documents related to modifications and revisions.

SCO writes that they need IBM to hand these things over because IBM "appears to assert that to establish IBM's breach of the Agreement at issue, SCO requires specific evidence of derivation from UNIX System V lines of code through the versions of AIX and Dynix code to Linux."

That's what you told us you already had, bub, long before discovery began. It was SCO that raised that exact thought. Now that they can't find what they said they had, they are distancing themselves from the idea.

But I remember the millions of lines of code, the line-by-line direct copying they've been telling us about for more than a year. That was no assertion of IBM's.

That was then. This is now. Now SCO says that their theory of the case, the contract case, as they call it, is that any and every transfer from AIX or Dynix into Linux breaches the contract. It seems they can't find those millions of lines of code now, so they need the court to help them by forcing IBM to hand over more and more and more IBM code.

Forget about copyright infringement. SCO now disingenuously says this:

"IBM is apparently taking the position that in order for SCO to succeed on its contract claims, SCO must prove copyright infringement."

SCO acts like that is just silly. We don't need to prove that, they say, but because of IBM's theories and their discovery demands, now we find we need more code so we can do our best to respond. They need it to show that AIX and Dynix are derivative works, don't you know.

They asked Judge Wells for all this before, several times, and she declined to order it. Perhaps SCO hopes Judge Kimball will be a softer touch. "Without the listed items, SCO has spent countless hours, and sometimes fruitless effort, trying to track the improper use of UNIX System V code in Linux through AIX and Dynix," SCO says.

In other words, they can't prove their public allegations to date, which raises the following legitimate questions: 1) On what basis did they file this lawsuit? and 2) Why did they tell the world they already had this evidence? (3) On what basis did they swear to the court that they had answered all discovery requests, if now they say they can't possibly do so without more AIX and Dynix code?

They list all the things they have tried to identify, including tracking IBM's "public statements regarding its roadmap for building Linux and its technology contributions to Linux", but they need more help. If they are public statements, why can't SCO get them themselves? Perhaps because they alienated the community and have no Groklaw. Or maybe, like Samizdat's author, they are trolling, trying to use the court process to get information from IBM that others down the road can use in additional lawsuits or they can use in additional claims.

No, they say it's because they need IBM to hand them a map. They think they can find hidden infringement somewhere, but IBM won't hand them the treasure map, and they can't find the elusive X where the treasure is buried all by themselves.

It's an amazing document. They said they had proof, even without discovery, and now, in discovery, they indicate they don't have much of anything. My impression is that they've been sitting at a high-stakes poker game, with lousy cards, but pretending to hold Aces, only now it's time to show their cards.

(Excerpt) Read more at linuxtoday.com ...


TOPICS: Business/Economy; Culture/Society; Technical
KEYWORDS: ibm; linux; sco
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I have posted only one of three articles at this URL. There is also a SCO press release there discussing the Discovery process.
1 posted on 06/03/2004 9:13:14 AM PDT by ShadowAce
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To: rdb3; chance33_98; Calvinist_Dark_Lord; Bush2000; PenguinWry; GodGunsandGuts; CyberCowboy777; ...

SCO Ping


2 posted on 06/03/2004 9:14:05 AM PDT by ShadowAce (Linux -- The Ultimate Windows Service Pack)
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To: ShadowAce

Down goes SCO! Down goes SCO! Good riddance.

You bluffed, you lost, take the rest of your chips and go home! And just be glad we're not vindictive!


3 posted on 06/03/2004 9:34:16 AM PDT by petro45acp ("Government might not be too bad...................if it weren't for all the polititians!")
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To: ShadowAce

More one sided bunk from Groklaw to help extend the mind control of it's readership. A factual representation of the current events are found here:

http://www.zdnet.com.au/news/software/0,2000061733,39149507,00.htm


4 posted on 06/03/2004 10:02:22 AM PDT by Golden Eagle
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To: petro45acp
"And just be glad we're not vindictive!"

Speak for yourself. I think SCO should lose the right to distribute GPL software. That would effectively be the end of the line for them as a UNIX vendor.

5 posted on 06/03/2004 10:04:01 AM PDT by shadowman99
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To: Golden Eagle
What are you doing here? You have a lot of homework to do!

Or did you find the millions of lines of code? Please feel free to post your research!

6 posted on 06/03/2004 10:08:20 AM PDT by shadowman99
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To: ShadowAce
Do you suppose it was on the basis of some particular person's (or "Office's") effusive encouragement or the temptation of a certain number of vaprous dollars, or the deathly fear of realizing the horse one is riding is otherwise irreversibly headed over a cliff, that gave SCO this mendacious chutzpah?

IMO, SCO's suit will be in tatters soon. Listen for offers of settlement negotiations within weeks.

Who ever thought IBM couldn't win a lawyer's game?!   I hope IBM holds out for the industry's full accounting of MSFT's possibly illegal, hidden activities here.

HF

7 posted on 06/03/2004 10:25:53 AM PDT by holden
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To: Golden Eagle
(from your link:) "[SCO's court] filing added that [SCO had] "attempted to follow IBM's scattered path through the winding history of countless alterations, derivations and revisions, but the task is nearly impossible without a map, a map so easily accessible to IBM, so clearly relevant to this case and so absolutely essential to SCO that IBM's withholding of it and subsequent filing of a summary judgement motion is unconscionable".

I've heard that noise before, coming from a flying Nazgul in LOTR2.

HF

8 posted on 06/03/2004 10:36:52 AM PDT by holden
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To: Golden Eagle
If you would actually READ the articles linked above, you would have realized that the ZDNet article you linked to was ALREADY included.

IOW, I was already presenting both sides of the argument.

9 posted on 06/03/2004 12:01:29 PM PDT by ShadowAce (Linux -- The Ultimate Windows Service Pack)
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To: ShadowAce

I saw exactly what you did, you posted all that groklaw BS then gave a link to Linux Today which didn't include but a snipet. Bottom line is after looking at the zdnet article it should be obvious to anyone how pathetically one sided the supposed "analysis" from groklaw is. Once again, nothing but the whinings of a shrill over-emotional female fanatically obsessed with Linux.


10 posted on 06/03/2004 3:38:24 PM PDT by Golden Eagle
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To: ShadowAce

SCOX stock closed at 5.12 today... the game is almost over and the fools who bought into SCO bull will be left holding the bag... the smart money is streaming out for SCOX daily -- check what's happening with their convertible stock...


11 posted on 06/03/2004 3:44:36 PM PDT by chilepepper (The map is not the territory -- Alfred Korzybski)
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To: chilepepper

And supposed Linux powerhouse Novell has fallen from $14 to the $7 range since Feb 04.

http://finance.yahoo.com/q/bc?s=NOVL&t=6m


12 posted on 06/03/2004 3:53:02 PM PDT by Golden Eagle
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To: Golden Eagle
I'll take a 50% drop over a 80% drop every time...

Just face it, the rats are leaving the sinking ship.

13 posted on 06/03/2004 4:47:59 PM PDT by chilepepper (The map is not the territory -- Alfred Korzybski)
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To: chilepepper
Just face it, the rats are leaving the sinking ship.

Novell, or SCO?

14 posted on 06/03/2004 5:20:11 PM PDT by Golden Eagle
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To: Golden Eagle

You are free to bet you money on the one you want...


15 posted on 06/03/2004 6:06:29 PM PDT by chilepepper (The map is not the territory -- Alfred Korzybski)
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To: Golden Eagle

Novell: Where good software goes to die...


16 posted on 06/03/2004 6:11:59 PM PDT by Doohickey ("This is a hard and dirty war, but when it's over, nothing will ever be too difficult again.”)
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To: chilepepper

I wouldn't bet MY money on either...


17 posted on 06/03/2004 6:20:55 PM PDT by Golden Eagle
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To: Doohickey
Novell: Where good software goes to die...

I'll never forget the wild emotions I went through the first time I read they were buying the rights to Unix, we had just finished ripping all their crap out, at least we thought. NOOOOOOOOOoooooooooo.....

18 posted on 06/03/2004 6:30:11 PM PDT by Golden Eagle
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To: Golden Eagle
More one sided bunk from Groklaw to help extend the mind control of it's readership. A factual representation of the current events are found here:

SCO's claims are still based on a fatally flawed legal theory. IBM does not claim, and does not need to claim, that there is no UNIX code in AIX.

It was clear in the ATT-IBM license, and further clarified in the ATT "Echo" magazine notice to its licensees, that the derivative code created by ATT licensees (including IBM) belonged to the licensee and could be distributed. That means code that IBM wrote, intended to be used with some pieces of UNIX code in AIX.

SCO's legal theory of derivatives (i.e., the "whole of AIX is a derivative") is rendered meaningless, because ATT gave the rights BY CONTRACT to IBM to distribut its own AIX code -- the only restriction placed by ATT was that IBM could not release the UNIX code itself, the DIRECT unix code.

David Bois thinks, apparently, that by his legal genius and winning personality and with a stupid jury (paraphrasing his own words, in a lecture I heard him give recently) that he can waltz past this problem.

I doubt it, and I recall a similar (poor, unethical, sham) performance that Bois gave in the Tallahassie trial th the Gore2000 drama.

19 posted on 06/04/2004 11:27:53 AM PDT by WL-law
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To: WL-law
IBM may very well win the case, they have enough legal resources to outlast even the US Federal Government as we saw in their never ending anti-trust trials. Something lawyers never seem to understand is, just because something is found to be legal doesn't mean it is necessarily right, and my concerns of IBM supporting GPL software like Linux go well beyond the outcome of this one particular court case.

IBM could have kept their agreement with SCO and developed a US-based version of Unix for Intel processors, instead of backstabbing them like they did and partnering with the foreigners and fanatics of the free software "community" instead, who benefited from IBM's Unix technology immensely. Some message board jockeys seem just fine with that, and some aren't, but this one particular case won't necessarily put that issue to rest either way.
20 posted on 06/04/2004 8:14:28 PM PDT by Golden Eagle
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