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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."
It seems somehow fitting that SCO would link to FUD in the jargon file, since the previous entry in the jargon file is "fuck me harder". After all, isn't that what SCO is doing to their shareholders?
First they ignore you, then they laugh at you, then they fight you, then you win. -- Gandhi
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?
In a desperate attempt to prevent interested parties from reading their crap, SCO has apparently taken it upon themselves to slashdot Groklaw. Impressive.
If we can't read it we have to believe them!
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.
SCO files a court document which includes (to provide support for their claim) a link to a web page controlled by someone they KNOW to hate them?
"Your Honor, we demand he change it back. We ummm didn't know website text can be changed"
The mind boggles...
Finkployd
Ya know, I just thought of something. These legal maneuverings by SCO are just SO absurd that the lawyers involved HAVE to know that. So I'm wondering - is SCO just being taken advantage of by unscrupulous lawyers, wanting to bilk stupid-ass SCO execs into thinking they can win anything?
- 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...
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.
-- Ed Bugg --You have freedom of choice, but not of consequences.--
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.
File under 'M' for 'Manic ranting'
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.--
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?
"He who would learn astronomy, and other recondite arts, let him go elsewhere. " -- John Calvin, commenting on Genesis 1
I have the same thought.
But I reminded of a Gary Larson's cartoon, where there are four panes one with a rattlesnake in the top left hand corner, a puffed-up puffer fish in the top right hand corner, a mad cat in the bottom left hand corner, and finally a wierdo wearing a trench coat, with a boot on his head, a child's
pool floaty thing around his middle and carrying a bazooka and the caption reads: "How Nature Says, Stay Away"
This I think applies to SCO.
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
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.
Uhhh-huh-huh. He said infringer. Huh-huh-huh.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
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.
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: we have: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
-- john
Not that I really agree with you but this is poetical geeky if true.
Self referencing is a hallmark of geekdom. Like GNU = Gnu Not Unix
Help fight continental drift.
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
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.
File under 'M' for 'Manic ranting'
This is closer to asking your hostages for some bullets because you forgot yours.
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.
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...
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?
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
. . You show us yours, and then we'll show you .... yours.
Free Software: Like love, it grows best when given away.
wow you can get +5 informative just for reposting the information found at one of the links in the story. I wonder how many points you get for actually saying something informative?!
SCO sells software?
IWARS.
People, in general, disappoint me. Politicians even more so.
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'
I was thinking....
In keeping with the Bill Gates as Borg theme, maybe Slashdot could create an icon to represent SCO of a Borg Sphere colored like the current Caldera icon.
When will Windows be ready for the desktop?
...
prev: fuck me harder - FUD - next: FUD wars
prophetic, even...
my
$5 / month hosted VPS on linux = awesome!