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."

Comments

umm.. dont they have the source code?

[ALpaca2500]

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?

Re:umm.. dont they have the source code?

[kfg]

Actually their claim is more targeted than that.

They claim specific rights to JFS as a derivitive work of UNIX, (which is like saying that your HKK turbocharger is a "derivitive work" of your Ford Mustang)and to a Linux SMP implementation.

Everything else that they claim to have claimed has actually been press release FUD. (See Jargon File)

The JFS claim rests entirely on the terms of contract and the legal definition of derivative works. No need to even look at the code since it is stipulated that IBM wrote the whole thing themselves.

The SMP claim depends upon the code in a very particular bit of code which may, but does not need to be, implemented in any particular Linux kernel.

This filing by SCO amounts to more FUD. I can't imagine it's going to fly. To make a claim you must provide evidence for that claim or go home. Defendant then defends against that evidence. If it isn't introduced as evidence, not need to defend. A claim is not evidence.

They're not only smoking, they're eating random mushrooms at the same time and the judege should throw their tripping asses out of court until they come back clean and straight.

KFG

Re:umm.. dont they have the source code?

[Error27]

As I read that, they seemed to be saying that JFS was just one example of infringement among many. They seemed to be saying that IBM should know all the places thta they have infringed without being told because it was so obvious. For example says SCO, look how obvious it is that they infringed on JFS.

IBM obviously can't go forward until SCO specifies all the points that SCO claims infringes. Even the debate that IBM can't release JFS is not specific enough. SCO needs to specify whether IBM can't release it because it has 10 lines that look a little bit like Sys V code or whether IBM can't release it because it was ported to AIX at one point.

Wait a minute...

[dreamchaser]

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.

Re:Then the judge replies...

[Ed Bugg]

And that would actually be bad. Linux needs to be totally vindicated of containing any tainted SysV code, and there is finally a chance that the GPL will be uphold as a valid enforcabled license. The case being dismissed will not clear Linux just gives SCO more of a chance to spread even more FUD.

Protection for SCO

[headkase]

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.

Actually Groklaw misrepresents the filing slightly

[isn't my name]

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.

SCO's strategy.

[WindBourne]

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.