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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."
...ok, so how do you know they misappropriated *anything*? Case dismissed.
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can't SCO get the linux source code, and compare it to their own closed source code, and see what is the same? i thought their claim was that IBM just dumped a bunch of their UNIX code into linux... wouldnt it be easy to find?
IANAL, but isn't the plaintiff required to point out exactly where copyright or trademark has been infringed? I think the burden of proof is on SCO.
ANYWAY, I really am shocked that this has been going on unchecked as much as it has. Im sure enough people have said something to warrent a investigation of SCO's activities, yet still no word on them being investigated for Stock fraud just as their is no word on what real code was actually stolen, (to which we now get its up to them to prove it... huh??? self incrimination????? YEAH THATS GOING TO HAPPEN EVEN IF THEY DID STEAL CODE WHICH I NOW FEEL WE KNOW THEY PROBABLY DIDNT.)
Anyway what I find quite annoying is that the press has been treating it as if SCO has a case, not one person has actually talked to anyone in the tech field who knows they are lying. Its always some "tech analist" who couldnt analize his or her way out of a paper bag. Would us sending these slashdot stories to the major cable news outlets make a difference????
"Slashdot, where telling the truth is overrated but lying is insightful."
This is a civil case. These amendments do not apply.
And the entire Canopy Group, too, if they can.
So IBM's going about this very methodically, and they aren't missing anything.
And get this: even if SCO's claims are dismissed, IBM's counterclaims will still have to be tried....
The whole thing might well be a lawyer-driven move, but not in the way you describe it I think.
Far more likely is that the lawyers are simply raking in the money in full knowledge that no matter what kind of good or bad advice they give SCO, no mud will stick on them, and the longer the case draws out the more money they will have earned.
Highly conspicuous by its absence is any sort of condemnation of SCO's moves by the legal fraternity where it matters (ie. at judicial level, not advocacy), or indeed even here on Slashdot. They know on which side their toast is buttered, and it's not on the side of promoting sanity nor doing the right thing quickly.
In a world where the legal profession was not an accomplice in misdeeds, SCO would have been legally mandated to shut up until the case is heard, in order to prevent causing damages beyond their ability to recompense. But we're not living in that kind of world.
Remember when SCO was whining that the open source model didn't provide adequate 'protections' to SCO's business model? This was where they quoted Linus to the effect 'don't check to see if the code is patented' within the context of if you did, found the algorithm to be patented, and still used it then you would be liable for triple damages. And this - in SCO's view - allowed IBM to insert SCO "derived" code into Linux unfairly.
Well what about the story that ran earlier today - Silicon Valley where in the linked NYTimes article on the second page it contains the following paragraph:
In April 2001, after discussions with Microsoft fell apart, InterTrust filed a patent infringement suit contending that the company illegally used InterTrust's technology in its Windows Media Player and other products. The suit is pending.
This just goes to show that there aren't any protections in the commercial area as well.
Shh.
If you check my posts, you'll see that I am far from a SCO apologist.
However, in this instance, I think Groklaw and others are misrepresenting SCO's filing. Not in terms of the derivative code issues--that representation is on target.
But, SCO is not asking for IBM to show it where the infringing lines are.
In IBM's discover, IBM asked SCO to be specific as to what is infringing. They also asked SCO to tell them who at IBM infringed and when. In SCO's response, they are saying that they do not know who had access to it and which specific IBM employee donated the code. They do say that once IBM answers some of SCO's discovery requests, then they will be able to answer the who/when. If you look at the relevant section Groklaw quotes from SCO, it says:
As a result, some of the information IBM requested will be known only to IBM, so the specifics of who at IBM was involved with improperly contributing this code to the public, how they did so, and the like will not be known until SCO gets the information from IBM, the party who contributed the protected materials in violation of its contractual obligations.
While I think SCO are a bunch of weasels who have probably not been specific as to lines of code. I do think that this particular objection to IBM discovery requests is quite reasonable and understandable. SCO isn't saying that IBM has to tell them what code was contributed just who did it how and when.
I also think that we as a community have to be very careful about trying to view SCO's statements with an open mind so that we don't sound like total idiots to disinterested parties because I think that is a danger in this instance.
I say that guardedly, view it with an open mind so we can understand what they are saying and debunk it.
Combine this with the Licensing of Large companies first. SCO is going to try and bend the law a bit. My guess is that they will try and find a friendly judge (hence utah or federal court) and use parts of methodology patents. That is to prove that they are right, they will get a number of companies to license linux from them. They will use this to prove to a judge that other "technology smarter" companies know what is going on and the license is market-viable. This current stuff is simple stalling tactics by them, hoping that IBM lawyers will make a mistake.
I prefer the "u" in honour as it seems to be missing these days.
Hey, Timothy, did you read the memo before citing it? Frankly, I hope not: if you did, then your headline is slanderous, instead of merely biased and deceptive.
One of the straegies which IBM has been test firing in the press is boils down to "you can't identify the person who released this code. How can you prove that it isn't you?" Assume, for the moment, that SCO is telling the truth. (And whatever your individual biases may be, the court must assume that neither party is lying. Contrary to the Slashbot mantra, that's actually plausible at this point.) Would this defense work? Yes. Would it be fair? No. So civil process in the United States allows a plaintiff and a defendent to engage in discovery. In this case, SCO has every right to ask IBM for any information that could identify the perpetrator. That's not asking IBM to make its case for it; that's asking for SCO's rights to be protected.
Meanwhile, IBM is asking for a chance to delay releasing that information for as long as possible. SCO is refuting, in particularly scathing terms, that motion to delay. I can't speak to the facts of whether or not SCO has actually already released the information in question, or whether IBM's original motion was premature, as I don't know the court schedule, but it is kind of worth pointing out that the judge will. Guess what? If the facts are as SCO alleges, then the motion should be deneid in pretty strong terms.
More like lame, old, third-hand, woman-repelling jokes is the hallmark of geekdom.
SCO is a minor legal problem for IBM and SGI. Comparing that to the total market dominance that a company like IBM or Microsoft had *is* FUD.
Courts are slow and SCO is using all means available to slow it down even further
in the press:
Reporters aren't interested in the truth, they're interested in a story therefore an article "IBM's evil and has to pay $3000000000" will always seem preferable to "Obscure company in SLC sues IBM to avoid bankruptcy" just as "WMDs found in Iraq" is more popular than "Yesterday's article about WMDs was premature"
Don't think of it as a flame---it's more like an argument that does 3d6 fire damage
A case can not be tried by the plaintiff standing up and saying, "Your honor, this is what I think the defendant did. It is now his job to explain in detail whether he did, or what he was doing if he wasn't doing that."
The plaintiff has to provide proof, beyond a reasonable doubt, that the defendant is in the wrong. All the defendant has to do is shoot down the claims the plaintiff is making. They aren't required to do anything beyond that. They don't have to testify to anything beyond the level of casting doubt on the plaintiff's case.
SCO saying (basically), "Your honor, IBM will now tell you why we are suing them, because we can't be bothered to take the time to provide proof that we are in the right." just won't fly.
when the code
WHAT code???????? SCO has not identified any such code.