Court ruling is a plus for SCO vs. IBM

Salt Lake Tribune ^ | 19 January 2004 | Bob Mims

[ShadowAce]

A federal magistrate has handed a partial victory to Utah's SCO Group, ordering computer giant IBM to turn over more of its Linux operating system-related program codes.

U.S. Magistrate Brooke Wells' ruling, released just minutes after Salt Lake City's federal courthouse closed Wednesday, came in the Lindon software company's contractual suit stemming from Big Blue's alleged distribution of Linux applications purportedly tainted with SCO's proprietary Unix code.

In a lawsuit tentatively set for trial next fall, SCO is seeking damages ranging from $5 billion to $50 billion from IBM. The Utah company also is in Linux-related litigation with Novell, Linux distributor RedHat Inc., and Linux end users AutoZone and DaimlerChrysler.

Wells' ruling came on a Dec. 23, 2004 motion to renew discovery after SCO accused IBM of failing to meet its demands for code, programmers' notes and other data from numerous Linux-related applications. IBM argued it had met SCO's requests to the best of its ability, and to further expand the scope of discovery amounted to a fishing expedition by the Utah company.

Wells refused to grant SCO complete review of all of the IBM programs it listed, but threatened to grant "unfettered access" in the future if IBM fails to provide all data - including approximately 2 billion lines of code - from its AIX and Dynix systems.

The magistrate also took the opportunity to chide both sides in the now 22-month-old lawsuit over "abundant accusations of stonewalling. . .

"The court assumes the good faith of all litigants before it," Wells wrote. "[But] it is important that the adversarial process, as contentious as it may be, not prevent [the court] from having the right information to resolve the issues in this case."

The magistrate ordered IBM to produce the additional programming information by March 18.

SCO spokesman Blake Stowell declined to comment on the decision, saying the company is discussing its ramifications with attorneys.

IBM officials did not immediately return a request for comment Wednesday.

However, IBM attorney David Marriott had earlier argued for denial of SCO's requests for additional code, saying the Utah company had not made any progress proving its Unix rights were violated in nearly two years since it first raised its claims.

Marriott contended that in complying with past discovery requests in the case, 900 million lines equivalent to 15 million printed pages of source code have been turned over to SCO.

[Bush2000]

Most lawyers have been saying this is pretty routine. I personally think the judge allowed it because she wanted SCO to finally quit bitching. Why else would she have mentioned that twice in the same order?

She mentioned it twice because SCO has been asking for this material since *December 2003* -- and gotten stiffed by IBM. She's making it clear that IBM is going to have to deliver -- and not only just deliver -- IBM has to provide an affidavit which specifies how they complied with the order. You seem to want to spin this into some kind of pro-IBM/anti-SCO bias on the part of the judge but, clearly, if the judge had felt that SCO's request didn't warrant the order, she wouldn't have done so. There's no way of running away from the fact that any additional code disclosures by IBM can only hurt the company. They can't help IBM.

[antiRepublicrat]

Dude, you're not an attorney nor do you play one on TV. I'll let the judge try this case.

That's not in this case. If if a Novell case were tried, and Novell won, then SCO wouldn't even have legal standing to bring the IBM case.

Dude, you don't possess all available evidence. Much of it (emails, depositions, transcripts, etc) is still under seal with the court.

You're right, SCO has some sealed depositions countering IBM's MSJ. These depositions would likely have the testimony to support SCO's interpretation. There's the John Harrop declaration, but he's just an SCO lawyer arguing legal points. There appear to be a couple others.

You'd better hope they have something much better than Otis Wilson's declaration. He was head of AT&T's UNIX software licensing department. He states:

At least as I understood these sections and discussed them with our licensees, they do not, and were not intended to, restrict our licensees' right to use, export, disclose or transfer their own products and source code, as long as they did not use, export, disclose or transfer AT&T's UNIX System V source code along with it. I never understood AT&T's software agreements to place any restrictions on our customers' use of their own original work.

And AT&T's Stephen Vuksanovich says

"Our standard software agreements also gave licensees the right to modify UNIX System V source code and to prepare derivative works based upon the code. As I believe we intended the agreements, and as I told our licensees, our licensees owned their modifications and derivative works they prepared based on UNIX System V, and were therefore permitted to do as they wished with those modifications and derivative works..."

These guys negotiated and executed this contract from the side that SCO is now trying to enforce from. How can SCO possibly disagree with them? How do you tell the head of licensing that he didn't know the intentions of one of his major licenses? These guys also state multiple times that they only wanted to protect original AT&T code, and would never think of placing such restrictions as SCO claims exist.

[antiRepublicrat]

We need, Your Honor, to have Mr. Marriott produce all versions of AIX. We need them to produce all the development notes of their developers from AIX.

You really have to stop listening to SCO and start reading the transcripts and court orders, because your choice of hearing was a very, very bad choice indeed. In fact, I've previously referred the order resulting from it in this thread.

Despite the whining you posted, SCO got nothing in the order resulting from that hearing. But they were ordered to turn over a ton of stuff to IBM that they'd previously been ordered to, but hadn't. Talk about "dragging your heels."

This is the order that said all of SCO's motions for discovery were put on hold until they finally complied with the discovery orders aginst them, but had previously ignored.

Under a plausible reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux

Yes, SCO's interpretation of the contract as read is plausible, but not when considering the AT&T depositions that clarify the contract, which is not the job of this judge.

Either SCO is washed up -- or it's still a viable competitor to IBM. Which is it?

I'll retract the competitive threat comment and go with what the lawyers are saying, that IBM doesn't want to waste the time and expense.

SCO has been asking for the code from IBM for over a year.

And the judge has been refusing those request until now. SCO can scream all all they want, but the only thing that matters when thinking of who's dragging their heels is compliance with what was ordered, not what what was wished for.

I would suggest you reread the transcript. IBM was doing everything it could to avoid disclosure

Everybody always avoids disclosure, who wouldn't? SCO did it in this case, too. IBM provided the last ordered code disclosure well before the deadline, so there's no reason to think they wouldn't make it for this one.

[Bush2000]

That's not in this case. If if a Novell case were tried, and Novell won, then SCO wouldn't even have legal standing to bring the IBM case.

BWAHAHAHA! But that's not what happened, is it? Bzzzzztttt! Thank you for playing. Here's your consolation prize.

You'd better hope they have something much better than Otis Wilson's declaration. He was head of AT&T's UNIX software licensing department ... blah, blah, blah ...

Look, this is probably going to be a shock to you -- but you should know that the testimony of most of these AT&T folks directly contradicts sworn testimony that they gave during the AT&T versus BSD lawsuit. SCO is in possession of the original contradictory testimony. SCO is also in possession of a letter from Otis Wilson that says ...

"AT&T intended for its license agreements to protect from disclosure even products that were based on derivatives of the licensed software.... We want to stress at the outset that licensees may not distribute, or permit access to, any licensed source code software products (either in modified or unmodified form) to any third party at any time, or distribute sublicensed products based on such software products or its derivatives, unless specifically permitted by the license agreement."

That's bad. Really bad for IBM. It directly calls into question the credibility of its prime witness. And when you throw in the sworn testimony of Martin Pfeffer, the AT&T chief Unix licensing attorney, which reportedly agrees with SCO's interpretation of the contract ... IBM may want to think seriously about settling this lawsuit out of court before it ever gets to a jury.

[TechJunkYard]

.. clearly, if the judge had felt that SCO's request didn't warrant the order, she wouldn't have done so.

So SCO has finally won a battle in court. Big deal.

This just removes a possible issue for appeal. Give the whiney SCO lawyers the code they want and see if they can actually build a case. They didn't get CMVC access.... just the interim code and notes and a list of names to depose. To listen to you guys, one would think that SCO has already won the whole shooting match.

There's no way of running away from the fact that any additional code disclosures by IBM can only hurt the company. They can't help IBM.

None of the previous disclosures has given SCO anything to work with. IBM has produced everything that it was ordered to produce, and usually before the deadline.

SCO had better come up with something in this latest batch of code. It just may be their last chance,

[TechJunkYard]

Look, this is probably going to be a shock to you -- but you should know that the testimony of most of these AT&T folks directly contradicts sworn testimony that they gave during the AT&T versus BSD lawsuit.

Ancient history. The contract IBM signed isn't the same one referenced here. Remember "Amendment X"?

[Golden Eagle]

To listen to you guys, one would think that SCO has already won the whole shooting match.

Nope. We're just pointing out how hysterical it is, considering listening to you guys the last year the case was already thrown out. Take a look at Nick Danger, the guy has been reduced to nothing more than some ole looney mumbling something about Microsoft over and over. Might as well be in a straightjacket, at this point.

[TechJunkYard]

"In fact, the contract claims may have a more important role in the outcome of this case than the copyright claims."

Sounds like the copyright question has already been decided.

"Under a plausibile reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux."

Yeah, it's possible. The opposite is also possible. We won't know until the contract is interpreted by experts.

"This code that eventually ended up in Linux may not look similiar to the code initially provided to IBM under the contract, but if it was based on modifications, elements of derivations that are protected under the contract then it is clearly relevant."

There may indeed be a lot of code in Linux which originally derived from Unix. Did IBM put it there? More importantly, can SCO prove that IBM put it there?

"In contrast to IBM's argument this protection may even extend to 'homegrown code' depending on the interpretation of the contract."

It's possible that the magistrate doesn't really know what "homegrown code" is.

Don't get your hopes up guys. This thing ain't over yet.

[TechJunkYard]

Take a look at Nick Danger...

I think it's more fun to watch B2K. He starts out on this thread with a measured "lets wait and see" response, but by post 33 he's chortling with glee.

[Golden Eagle]

Don't get your hopes up guys. This thing ain't over yet.

Same thing I've been telling you all along. Too bad for you, you had to finally learn it the hard way.

[antiRepublicrat]

She mentioned it twice because SCO has been asking for this material since *December 2003* -- and gotten stiffed by IBM the judge.

There, that's correct. This order states that IBM has complied with the code discovery order, and now gives a brand new one.

Did you even read the context?

Facts: She's making IBM detail exactly how they collected the information for the express purpose of finally making SCO stop bitching that they didn't get all that they wanted. Actually, the exact words were "Once again by requiring this, the court seeks to circumvent the rote objection by SCO alleging that they did not get enough information." Rote, "A memorizing process using routine or repetition, often without full attention or comprehension ... Mechanical routine." By her own words, the judge believes that SCO automatically complains about all discovery, whether they have a valid reason to or not.

My interpretation: SCO got this discovery not only because of legal grounds, but because the judge is tired of SCO's constant complaining.

clearly, if the judge had felt that SCO's request didn't warrant the order, she wouldn't have done so.

The judge has previously denied this request several times, stating that it may grant it later if SCO can argue they actually need the code. I think SCO finally wore her down, like the parent who finally buys the tantrum child the candy at the checkout line.

[antiRepublicrat]

BWAHAHAHA! But that's not what happened, is it? Bzzzzztttt! Thank you for playing. Here's your consolation prize.

Are you making any sort of point here?

but you should know that the testimony of most of these AT&T folks directly contradicts sworn testimony

No it doesn't. It is a general statement, reflecting the text of the contract, that is clarified by the current depositions.

...licensees may not distribute, or permit access to, any licensed source code software products (either in modified or unmodified form) to any third party at any time, or distribute sublicensed products based on such software products or its derivatives,

Can't distribute AT&T's code. That's obvious.

Can't distribute derivitives of AT&T's code. That makes sense, too. A derivitive of AT&T's code will have AT&T's code in it, and therefore licensees didn't have the right to distribute it.

Let's take it to a Linux example. I write a file system, put it into Linux, and redistribute. I am bound by the terms of the GPL because my work is a derivitive of Linux, being packaged inside of Linux.

Later, I take that same file system and put it into an OS that I wrote from scratch. Packaged with my OS, it is longer controlled by the GPL since the package does not contain any Linux code. That is what IBM did with SYS V -- wrote code, put it into AIX, then later put that very same code into Linux, yet SCO claims they control that code, too.

IBM may want to think seriously about settling this lawsuit out of court before it ever gets to a jury.

That's what Darl is hoping, because he obviously doesn't want its control of UNIX questioned in any court. That's why SCO has stalled the Red Hat lawsuit.

[steve-b]

Ruh-roh -- it turns out that SCO has just shot itself in the foot and left itself wide open to IBM discovery. Walked right into the trap, they did.

[steve-b]

So SCO has finally won a battle in court.

Er, no they didn't. They just shot down their own ability to continue dragging their feet on discovery.

It's as if the Democrats won an order from a judge to investigate alleged Republican vote fraud in some jerkwater burg in Ohio. They'd be pleased... until they realized that a precedent had been set that would lead to investigations of all vote fraud....

[steve-b]

SCO got this discovery not only because of legal grounds, but because the judge is tired of SCO's constant complaining.

Yep. Sounds to me like the judge is bending over backwards to avoid giving SCO any grounds for appealing a ruling against them, which in turn implies that the evidence to date makes such a ruling likely.