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SCO Asks IBM To Make SCO's Case For It
acousticiris writes "According to an analysis of Friday's memorandum from SCO on Groklaw: 'If I had to characterize it in a brief sentence or two, the sentence would be that SCO tells the court, "How are we supposed to know what code IBM misappropriated? It's up to them to prove our case for us."...' It's also interesting to note that in Friday's memorandum, footnote 4, SCO uses Eric Raymond's Jargon File entry for FUD to take pot shots at IBM (footnote 4). Evidently, Eric was not pleased, according to the updated entry."
Why does the term "possession is 99% of the law" come to mind for this case?
That is exactly what IBM was trying to do. The case is in discovery and IBM had asked for exactly what lines of code SCO is saying they stole from SysV and put into Linux. When SCO wouldn't show the code IBM filed a motion to force them to submit it. This is SCO's reponse to that motion saying the motion needs to be denied because they are waiting for IBM to show them what parts of Linux came from SysV.
Nifty eh?
-- Ed Bugg --You have freedom of choice, but not of consequences.--
I hate SCO just as much as the next guy, but the Amendments you cited are for criminal cases, and apply only to the government. This case is a civil matter, and therefore use a different set of laws. IANAL, so I believe SCO still has to prove its own case, but it isn't compelled to by those Amendments you listed above. -geoff313
Just for the sake of beating a dead horse, I'd like to remind my fellow Slashdotters that SCO isn't suing over SCO's code being included in Linux. They are suing IBM for including IBM's code which they say they have rights to. Same with SGI. JFS, NUMA, XFS, etc are not, and never have been in any SCO products. Groklaw is slashdotted, so I can't RTFA, but I'm assuming they can't compare Linux with IBM's code base, and thats the problem. Someone mirror TFA please. ;)
SCO Tells IBM: No, You Show *Your* Code First
Saturday, October 25 2003 @ 06:22 AM EDT
It's time to analyze SCO's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery, which we posted as text yesterday. If I had to characterize it in a brief sentence or two, the sentence would be that SCO tells the court, "How are we supposed to know what code IBM misappropriated? It's up to them to prove our case for us. It's not for us to hand over the code; it's up to them to show us every bit of code they ever donated to Linux. Then, we'll go over it and find whatever we can find. And anyway, we've given them plenty of stuff just today, so who needs a motion to compel? Let's just forget the whole thing."
In short, they don't want to show the code this exact minute.
They bad mouth IBM some more, tell a fib or two, by my reckoning, and then sit down, saying the motion should be denied. Let's go over the document piece by piece.
"It has been said that things have both an ostensible and a real reason. Ostensibly, IBM filed its motion to Compel to force SCO to answer interrogatories and produce documents because it had failed to do so. The reality, however, is that SCO not only timely responded to IBM's discovery requests, it then engaged in weeks of lengthy conversation, correspondence, and emails to resolve and clarify discovery issues and ultimately agreed to supplement its responses. But supplemental responses were not all that IBM was seeking. If that were the case, IBM would have waited until today, when supplemental responses were promised and were in fact served. No, what IBM really desired was a forum within which it could construct its stilted and inaccurate mischaracterization of SCO's claims, behind which it could hide its own failure and refusal to provide meaningful discovery responses. As detailed below, IBM's motion is without merit and should be denied."
Here SCO tells the judge that there is no need for any Motion to Compel. They told IBM they'd give them their supplemental answers (that they should have given them from the beginning but didn't until after "weeks of lengthy conversation, correspondence, and emails" made them agree to do it) by today. We did, so why did they file a Motion to Compel? There are pretend reasons used as a cover, they say, and then the real reason. And the real reason was so IBM could have a forum to mischaracterize SCO's claims and so it could hide from their own failure to give SCO meaningful answers to *their* discovery requests. In short, the defense is, IBM hasn't answered all our questions either. Never mind that IBM sent its interrogatories to SCO weeks before SCO sent IBM its interrogatories.
This is certainly a novel way to respond to a Motion to Compel Discovery. SCO has been accused of refusing to turn over information and documents it must turn over, and their answer is, well, they didn't either. Their secondary answer is that although they had not turned the materials over by the date of the filing of the Motion, IBM should have been able to trust SCO's word. Heh heh. IBM already told the judge in its Motion to Compel that the reason they were filing was because SCO had absolutely refused to tell them that they would produce the materials requested, not that they were pokey.
So now, somebody's mistaken or lying. Either SCO told IBM it'd turn over everything IBM asked for by the 23rd, or they refused to commit themselves to doing so, which is IBM's story. So, who do you believe? I think the rest of the document makes clear that when SCO says it offered supplementals, it still didn't mean it would answer all IBM's questions or provide everything IBM asked for.
"At its core, IBM's Motion to Compel Discovery asks for answers to interrogatories that fit its own mischaracterized theories of the case, rather than answers that relate to the actual allegations made by SCO in the Complaint."
IBM is asking us things that don't relate to our theory of the case as presented in our complaint, they whine. I
not at all:
canopy owns a whole wopping 5% of trolltech
they have no power what so ever.
also trolltech barely has to invite them to the big stock holder meetings. canopy i bet doesnt even get a board member in the room.
so canopy = a measely %5 of trolltech
Not really, no. Canopy only owns about 5% of Troll Tech. There are other investors. Most of Troll Tech is owned by the employees (whom I'm sure would love to find a way to force Canopy to dump its shares).
-- Alastair
My gut feeling is that SCO may have initially mislead the law firm of Boise and Co. Witness the fact that Boise's firm originally took the case on a contingency basis.
It should now be quite clear to even the most feeble-minded lawyer that SCO has been gaming Boise's firm almost as much as the general public. Witness the fact that Boise's firm renegotiated their contract with SCO to be paid up-front. But I understand it's very difficult for a lawyer to "fire" a client, even if that client is a lying scum-sucker like SCO, which is probably why Heise (whom I understand is relatively inexperienced) ended up representing SCO and why their court filings are relatively amateurish. Boise's firm may be stuck with SCO, but they don't have to do a good job.
Ha, I just thought this might be a strategy on the part of Boise's firm. Do such a lousy job that SCO will fire them and have to look for another sucker... ah, law firm to represent them.
Royal Bank of Canada invests in SCO.
It's been revealled that it was not MS but rather a Canadian bank.
No they don't. You have to see this from SCO's perspective. A derived work to them is any code that Unix licenscee may have, copyright and/or patents to, but were used in Unix. The code they are looking for was never in SVR5, but code IBM written for AIX, that IBM owns. It doesn't have to based or deived from the SVR5 code. They do not have a copy of AIX code, IBM does. They want to compare this code with the Linux kernel source and see if it is the same. According to them, IBM is not allowed to do this because of their ATT licence agreements. They are assuming that their definition of a derived work is correct. I guess the ATT license wasn't as clear as the GPL on what constituted a derived work.
IANAL and I'm not a US citizen. Anyways, now I'm not up on US law to ANY respect but from what I remember from the last time I saw was that US law in a civil trial does not operate under British code - basically it's not assumed that the defender is innocent until proven guilty.
What this means in a civil trial is that proof can come from either party and that usually only sufficient evidence has to exist for an infraction rather than complete proof of infraction.
Basically - SCO can do this.
It's up to the judge on whether they can get away with it though.
Civil trials do not work under the same rules as criminal trials.
Actually I suspect (not sure) but they work under the Napoleonic code (guilty until proven innocent) which is the code a lot of US law is based on - or perhaps vice versa as (IIRC) a number of US founders were involved in Napoleon's government...
SCO has said that, yes, but not consitently. SCO said in their SCO Forum that there was line by line copying. They also mention copyright violation in their Amended Complaint.
;)
But really my point is that it doesn't matter what SCO says to the press. They need to say say this in court...
In court, IBM can make sure they choose one story and stick with it.
This has been said before, but since your post is way up here at the top of the view, I'll say it again: No. The US constitution protects against self-incrimination in criminal cases. This is a civil case. During the "discovery" phase of a civil case, each party is required to give all requested (and relevant) information to the other, even if the information makes them look bad.
Wrong. What actually happens is that the pary that has mixed non GPL'd software in with GPL'd code and distributed it is guilty of copyright infringement and can be held accountable for it by the holders of the copyrights on the code that *IS* GPL'd.
File under 'M' for 'Manic ranting'
The plaintiff has to provide proof, beyond a reasonable doubt, that the defendant is in the wrong.
Oops, you got it wrong again.
In civil cases, you must prove only that the "preponderance of the evidence" points to wrongdoing. In a civil jury trial, you only need a majority of the jurors to decide in your favor, not 100%.
You have your standards of proof mixed up. Generally (about 99% of the time), the standard of proof required to prevail in civil cases in "preponderance of the evidence," not "beyuond a reasonable doubt." Although this is a gross simplification, in lay terms this is sort of like the difference between 51% and 99.9%. So if SCO can present a convincing case, IBM may have to do much more than simply cast some doubt on the matter.
However, you make another valid point. Courts frown upon plaintiffs who bring wild claims without presenting any proof on their own, and instead try to make the defendant prove that the claim is false. Such fishing expeditions can, if really blatant, result in significant penalties (typically attorneys fees awarded to the prevailing side).
The oldest and easiest proof is simple. If primes are finite, then there must be some prime N that is the biggest. Multiply together all primes and add one: x=1 + 2*3*5*7*...*N. This resulting x is not divisible by any prime...it has remainder 1 when divided by 2 or by 3 or by 7...up to N. But that means that x is prime, yet it is obviously bigger than the biggest prime N. Contradiction, therefore our premise, that there is a largest prime N, is false, therefore there are infinite primes.
No, x does not have to be prime. 2*3*5*7*11*13+1 = 30031 = 59*509. What the proof says is that you take the set of all known primes, multiply them together and add 1. Since x is not divisible by any of the known primes, the set can not be complete, i.e. there must be more primes. But it can *not* be used to find primes, as the counter-example above shows.
Kjella
Live today, because you never know what tomorrow brings
It should mean basically what the other poster who replied here said, excepting the use/copying distinction that was already mentioned in another reply.
But, if we assume enough craziness to get to the GPL somehow being invalidated to begin with, it's really beyond prediction. I find it impossible to think of any half-sane legal theory under which you'd get such a result, so really, if it happened, we just don't know what it would mean. It could even be something like what SCO seems to think they can get now. Exactly why I think it would be a good thing to use this opportunity to get a precedent now, because while we can imagine a future where someone like SCO bribes the judges and no one like IBM is around to fight them, that future is not now - right now we should be able to get a sane ruling, and thus a sane precedent.
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Friends don't let friends enable ecmascript.
The filing in question quite clearly states that the claim against IBM at this point is not for infringement, but for misappropriation of trade secrets. As far as that goes, SCO argues that the evidence already in the public record is conclusive: JFS and IBM's implementation of NUMA/cc were released into Linux. If the release was covered by the broad wording of the original AT&T license, then there's infringement. If it wasn't, then there is no infringement.
Now, obviously, the facts may be other than SCO would have us see them, and IBM may show that at trial. However, to get to the point of discovery, SCO only needs to show that the case wasn't clearly frivolous. It seems to me that they have done that, no matter what the final outcome is.