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

Why I'm not surprised

[linux_author]

- when bottomfeeders and IP portfolios mix, one shouldn't be surprised by such actions... - sadder however, is that the U.S. court system allows this case to continue to be played out... - the big warning here is that no future technology endeavours or independent software developers are safe from venture capitalists, investment brokers, and reptiles that have passed state bar exams...

Re:Then the judge replies...

[mark-t]

Would you mind explaining how it can possibly be that the GPL is *NOT* enforceable?

Copyright law says you are not allowed to distribute without permission from the copyright holder(s). It does not stipulate what you must do to obtain that permission. That is left at the discretion of those that hold the copyright. If I hold the copyright on material, and I insist that you abide by the terms a license that I dictate before you are legally allowed to distribute *ANY* of the code I wrote, that is my perogative.

My having used the GPL does not cause derivative works to be copyrighted by me... You still own the copyrights on any lines of code that you wrote, but I still *DO* own the copyrights on any lines of code that I wrote as well, and if any of those lines happen to reside within software that you write, if you did not agree to the terms of the GPL, you are violating plain old ordinary copyright law.

End of story.

Could Microsoft be subpoenaed?

[Fished]

This case becomes more and more ridiculous. I wonder - could someone with appropriate standing subpoena information regarding SCO's $50 million to see if it really did come from Microsoft? If Microsoft were funding this, would that not be a pretty clear anti-trust matter?

Re:Actually Groklaw misrepresents the filing sligh

[gimpboy]

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.

in theory, sco should be able to tell ibm who did it. all they have to do is check out the copyright notices in the code. for example in:

arch/s390/lib/memset.c

we have:

/*
* arch/s390/lib/memset.S
* S390 fast memset routine
*
* S390 version
* Copyright (C) 1999 IBM Deutschland Entwicklung GmbH, IBM Corporation
* Author(s): Martin Schwidefsky (schwidefsky@de.ibm.com),
*/

so sco really just needs to identify which sections of code they think ibm help create with sco's "technology" and use the info in the copyright notices to inform ibm which employee has been bad. seriously just do the following:

grep -ir ibm.com /usr/src/linux-2.4/arch/s390/*

Re:Then the judge replies...

[mark-t]

the jaws of the GPL is that if a project becomes tainted like this then the tainted software must be GPL'd as well.

The GPL cannot be made to apply to code without to copyright owner's consent, regardless of whether or not non-GPL'd software has contaminated a GPL'd work.

What must happen in this case (assuming, of course, that some code exists in Linux which was never supposed to be there), is that SCO's code *MUST* be removed from Linux. Whether or not SCO wants it there is irrellevent, since SCO at best only hold copyrights on code that they wrote, they do not have the authority to dictate that their code must be bundled with code that other people hold the copyrights on. Because SCO is not cooperating in this matter, it technically is making *EVERY* single Linux distributor in violation of the GPL. SCO cannot legally distribute Linux without GPL'ing their code, but neither can anyone else (in the strictest legal sense of copyright law). This is unreasonable, and will *NOT* be looked on favorably by an unbiased judge.

What is ironic is that SCO's case against IBM would have actually been a lot stronger if they had admitted to where the code was up front. They still would have been eligible for damages by the merit of their code being misappropriated, just maybe not as much as what they were saying. It is apparent that the only way SCO's case is likely to be worth as much as SCO wants it to be is if SCO keeps the code location secret. What SCO is overlooking is that you aren't supposed to use the evidence itself as a basis for determining the suitable penalty, you have to assess the raw damages in order to determine that. When they try to present this in court, SCO will be extremely lucky if the judge doesn't fine them for wasting the the legal system's time with a frivolous and unsubstantiated case.

Re:Gross mischaracterization

[etymxris]

Fishing expeditions are not allowed. When you are the plaintiff, you have to have your evidence ready before entering court. Defendant has much more leeway in discovery. Otherwise, as PJ pointed out, you could simply file claims against random people, searching for any infringement anyone might have done. This would be abuse of the court system. It would be like allowing the police to preemptively search random people's homes without reasonable suspicion. Sure, they would find more evidence and prosecute more crimes, but the benefits do not outweigh the consequences.

SCO shouldn't need evidence--everything is already laid out, "infringing" source code is known to all. But they have nothing, so they are abusing discovery to go fishing. IBM, on the other hand, can ask for pretty much anything, since they didn't bring action.

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

[Xabraxas]

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.

SCO is not claiming that JFS contains sys V code. They are claiming that they own JFS, even though IBM invented it, just because they use it for AIX. Their arguemnt makes no sense. Talk about viral licensing!

Gross mischaracterization (yeah, your analysis)

[DaveAtFraud]

I don't know how the hell you came up with this analysis but whatever you were smoking at the time must be really good stuff.

1) SCO filed suit against IBM for allegedly contributing "millions of lines" of proprietary SCO code to Linux. Not the other way around.
2) SCO supposedly had a team of people somehow vaguely related to MIT who supposedly ran pattern recognition analysis to identify the purportedly donated code.
3) SCO has shown the code to several hundred people (at last count) who would sign a non-disclosure agreement.

At this point SCO has accused IBM of a civil crime (breaking contractural and licensing agreements), has said they have proof. IBM has said, fine, show us the proof and SCO has come back with, "You know what you did so tell us and the court."

Last time I heard, the burden of proof is on the accuser in both civil and criminal cases. If SCO can not provide evidence of the acts they have accused IBM of doing, *there is no case*. All IBM has done is call SCO's bluff and say, show me the code that you claim violates our agreements. At this point, it is up to SCO to show that a contract or license was broken; not continue spreading FUD about how tainted Linux code is and how IBM gave away their secrets.

And yes I read both the motion from SCO and P.J.'s analysis of it on Groklaw. Did you?