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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."
Um, it's a civil case, not a criminal one.
Defined by Gene Amdahl after he left IBM to found his own company: "FUD is the fear, uncertainty, and doubt that IBM sales people instill in the minds of potential customers who might be considering [Amdahl] products." The idea, of course, was to persuade them to go with safe IBM gear rather than with competitors' equipment. This implicit coercion was traditionally accomplished by promising that Good Things would happen to people who stuck with IBM, but Dark Shadows loomed over the future of competitors' equipment or software. See IBM. After 1990 the term FUD was associated increasingly frequently with Microsoft, and has become generalized to refer to any kind of disinformation used as a competitive weapon.
[In 2003, SCO sued IBM in an action which, among other things, alleged SCO's proprietary control of Linux. The SCO suit rapidly became infamous for the number and magnitude of falsehoods alleged in SCO's filings. In October 2003, SCO's lawyers filed a memorandum in which they actually had the temerity to link to the web version of this entry in furtherance of their claims. Whilst we appreciate the compliment of being treated as an authority, we can return it only by observing that SCO has become a nest of liars and thieves compared to which IBM at its historic worst looked positively angelic. --ESR]
We must be alert to the danger that public policy could become captive to a scientific-technological elite. - Eisenhower
October 23, 2003
The SCO Group ("SCO") submits this memorandum of law in opposition to International Business Machines Corporation's ("IBM") Motion to Compel Discovery.
INTRODUCTION
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.
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's baseless arguments begin as an effort to smear SCO and end with a newly created justification of why IBM has failed to provide any meaningful discovery responses itself. While IBM's improper litigation tactics are discussed in detail below, the Motion to Compel can be denied on the simple basis that SCO has actually provided supplemental answers, pursuant to earlier agreement, and this motion is therefore moot.
THE LAWSUIT
Contrary to IBM's efforts to recast SCO's Amended Complaint as one limited to trade secret violations, the Amended Complaint contains six counts--the first three counts are for IBM's numerous breaches of licensing agreements. The remaining counts, including Count VI for misappropriation of trade secrets, flow from this transgression and are ancillary to the breach of the license agreements. Thus, notwithstanding IBM's mischaracterization, trade secret misappropriation is not the gravaman of the Complaint (IBM Mem., p. 2), but it is merely one count that recasts one aspect of the injuries caused by IBM's breach. These injuries would exist even in the absence of any trade secret misappropriation.
In its Amended Complaint, SCO alleged that IBM and Sequent (now part of IBM and herinafter collectively referred to as IBM) were licensees of UNIX System V source code ("UNIX"). As part of this license grant, IBM was given certain rights and also agreed to certain restrictions upon its use of UNIX. IBM agreed, for example, that UNIX code and methods would be solely for its own internal business purposes ( 2.01), [1] that UNIX code and methods would not be used for others and by others ( 2.05), and that IBM would maintain the code and methods related thereto in confidence ( 7.06). Similarly, IBM further agreed it would not sell or otherwise dispose of UNIX in whole or in part ( 7.10). Significantly, IBM also agreed that any modifications or derivative works of UNIX prepared by IBM, would be treated by IBM "as part of the original Software Product." ( 2.01). Thus, all of the foregoing restrictions on UNIX also apply equally to any modifications or derivative works created by IBM. [2]
Pursuant to these restrictions, IBM agreed that AIX, IBM's "own version of UNIX" (IBM Mem., p.2 n.1), and Dynix, Sequent's version of UNIX, would be used solely for internal business purposes, would be maintained in confidence, and would not be disposed of in whole or in part. IBM, contrary to these clear and unambiguous limitations on its use of UNIX, including modifications and derivatives thereof