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SCOrched Earth
mm0mm writes "Just hours after we read Darl's open letter on copyrights, Groklaw has another breaking update on SCO up on their website. SCO's Reply Memorandum of Law in Support of its Motion to Compel Discovery is now available. (original document here) The memorandum requests court to order IBM, the defendant, to provide evidence and support their case against ....IBM. :D When I was young, it was the plaintiff who was responsible for preparing enough evidence to present to the court, but in Darl's world, with army of lawyers who will be given 20% of the proceeds from the settlement or of 'a sale of SCO during the pendancy of litigation', apparently rules are different." Lawrence Lessig has a great piece reviewing Darl's nonsensical letter.
where any semblence of sense has gone out the window. Attempting to get a court order forcing IBM to self-incriminate? If SCO were a human it would be able to plead insanity in the countersuit. :p
Only in a Slashdot fantasy can a Slackware install turn into several hours of sex . . . . .
I was getting nervous that I might go an entire day without having the oppurtunity to read somebody's extended essay on the problems an evilness of SCO's case, now I won't have to worry about that anymore.
Listen people, we all know SCO's case is wholly ridiculous and that they clearly are doing it for the money (either from MS and Sun for defaming Linux or more likely from the hope that they'll get bought out) but that doesn't mean that it's insightful everytime you post a huge diatribe on SCO's problems. I mean really, if you were a karma whore or something you could just steal somebody else's rant from another SCO thread and get modded up to +5.
I have a question for all of you...
Since cases that do actually make it to trial take about two years, are we doomed to seeing everything out of McBride's mouth, everything on Groklaw, and every other passing thought about SCO for the next two years on slashdot?
I've been a member for a long time, and the content seems to be degenerating into a groupthink zealot factory with its own set of dogmas and censors.
This is a real question to this community so please don't join the groupthink mass and moderate this as flamebait just because it goes against the hive mind around here.
Thanks.
So
are IBM going to have to show they did not do anything wrong or is SCO got to prove it ?
JJ
This is what worries me about SCO: That their army of lawyers will wreak terrible legal havoc, not because SCO was right, or because SCO suffered damages--I strongly believe that neither of these is the case. Their army of lawyers will pull off Bill Gates style, "I don't understand your question," when the question is, "Does X concern you?" They'll pull off Bill Clinton style, "That depends on what 'is' means." They'll find loopholes and language in the law that nobody ever thought was there, with newly made-up implications that no legislator intended or thought would occur, to cause as much damage as possible to the Linux community and the free software community in general.
The longer I think about this, the more apparent it becomes to me that they do not want to profit from litigation. It's like the old story of people who are seated at both sides of a long table covered with the most wonderful foods in the world. The only problem is that the silverware is a yard long, and nobody's arm is long enough to fit their spoon or fork into their mouth. So somebody comes up with the idea that everyone should feed the person seated across from him. That way, everybody gets to eat. But Darl says, "What?! I will feed somebody else?! NO WAY! Sure, it means I won't eat but he won't eat either!!" That, I strongly believe, is the nature of Darl McBride, and the new SCO.
They do not want to profit. They do not want to rectify damages (which I strongly believe never occurred). They do not want to protect their copyrights (which I strongly believe were never violated). They are focused on one solitary goal, and that is to destroy (or damage, to the greatest extent possible) Linux.
That's all well and fine for specific evidence. But it's a bit different when they ask IBM
to do things like "support their case against [IBM]". They can't force IBM to do the
research/build their case for them because they refuse to disclose what specific sections
of code are in violation.
But isn't there a problem with this?
Say I am a fizzy drinks manufacturer. I want to know what Coca-cola's secret formula is. I start a case against them saying that they've copied my formula, and that they have to give me their formula so I can prove it.
I would imagine source code is esentially a trade secret. A competitor has asked IBM to hand over their trade secrets, because they may have copied theirs. Doesn't seem right to me. If SCO cannot provide some other proof that copying has occurred - for instance, evidence from an IBM employee - then I don't think they should be allowed to see IBMs trade secrets.
Pardon me for answering my own post, but this continues to dumbfound me.
SCO is represented by attorneys who are arguing a suit over source code copyright infringement who do not understand computers well enough to correctly identify binary digits. It's bad enough that this wasn't caught by a proofreader and ended up in a document filed with the court; but even worse, SOMEBODY TYPED THAT IN TO BEGIN WITH! My guess is that someone googled a definition of binary code and misread the text of the definition.
If they can't tell the difference between binary digits and alpha letters, how are they going to argue the subtleties of source code?
Maybe this partially explains why Boies' firm took the case? Personally, I'm disappointed, but I'm popping popcorn if this thing actually gets to court -- it should be fun to watch.
"Lawyers are for sucks."
- Doug McKenzie
They are destroying the US at rapid pace. 2 decades ago we had a thriving manufacturing and high-tech economy. That disappeared and you were given the choice of Wal-Mart or high-tech. Some of us chose high tech. That bottomed out and now if you're unemployed because your job got shipped to India you can't even right GPL software without fear of lawsuit from some jackass like Darl McBride. I would say CEOs are destroying this country at rapid pace.
Darl McBride is effectively arguing that the US Constitution requires property owners to make a profit on their property, so sharing property is unamerican, and illegal. Ironically, when he trades his SCO shares to his lawyers at the height of his SCO vs. GPL hysteria, he will be cheating them, or their victims down the line, of any profit from a company that has destroyed all its goodwill, and much of its viable intellectual property. Hopefully McBride is investing his scambucks in a bunker in the Utah mountains, where he can be safe from the rising tide of sharers who understand the "network effect" of economics, where intellectual property value increases when it's more widely distributed.
--
make install -not war
When I write software, I certainly don't save every version of every program I've ever written. And I delete old backups on a continuous basis to save disk space.
... would it?
So there's no way in the world I could even comply with such a request, since the information just isn't there.
IBM might well save every daily backup tape because they're so huge they can afford to without breaking a sweat. Maybe they should just dump every single tape for every single version of every operating system they have, and let SCI sort it out.
But I'm curious about the interim versions, since I would think that it would not be a copyright violation unless the code was in the distributed version
D
feel that PJ would be an asset to any law firm? Who did Boies hire? The C- paralegal?
Just another example of open source producing world-class professionals.
"Rocky Rococo, at your cervix!"
While your general point is correct, you seem to be missing an important fact. Discovery is not a fishing license. When you request information you have to do so in a specific manner. SCO, on the other hand, is basically saying "give us everything you think might incriminate you". There's nothing specific about that request, and IBM has rightly refused to comply with it unless and until they specify what it is they're looking for.
There are 2 reasons why IBM is right to refuse in this case. The first is that, in essence, SCO is demanding that IBM make their case for them. Under no sane theory of law is it the defendant's job to prepare the plaintiff's case.
The second is that such a non-specific request places an unreasonable burden on the side which is to supply the information. Just think of the mountain of documents a company as big and as old as IBM has, then think of being that guy that has to go through every one of them looking for anything that might, even in the vaguest way, be related to the case. Now think how much easier that job would be if they were asking for something specific.
SCO is treating discovery like a fishing expedition in which they have no idea what they might catch, or even if there is anything to catch at all. There's plenty of legal precedent that says that's not OK.
Under capitalism man exploits man. Under communism it's the other way around.
I've been a member for a long time, and the content seems to be degenerating into a groupthink zealot factory with its own set of dogmas and censors.
Memo to moderators: Please stop moderating the same tired, old SCO-bashing posts or conspiracy theories as insightful or interesting, because they are neither. (I agree with the parent.)
In particular, do not promote any post whose content is basically "Darl is going to jail", because these posts are wrong. No SCO executive will do jail time, because it is not illegal to be a jerk. If you need further evidence that nobody is going to jail, consider that David Boies is now up to his neck in SCO. He may tiptoe on the fine edge of what is legal, but he's a smart enough lawyer not to go over.
Toronto-area transit rider? Rate your ride.
However, the rules are the same for both parties and even though SCO is the "Bad Guy" here, don't forget IBM can do the same if SCO fails to comply with THEIR discovery requests.
,and no claim.
"If" they fail to comply? SCO filed their Motion to Compel after IBM filed theirs.
IBM is annoyed because, among other things, IBM requested SCO's source code and a description showing what files and parts of files have been copied, in a form making it amenable for searching. SCO responded by printing out large chunks of Linux source code files and effectively said "it's in there, somewhere". (And then had the gall to complain about how much it cost them to print out that code!)
SCO filed their Motion to Compel Discovery in response and are basically saying "Well, we can't know for sure what infringement has occurred until we see the code from IBM."
On one hand, SCO claims in the media to have solid evidence of "line-by-line copying" of "millions of lines" of code, that discovery is progressing along and they're preparing to sue Linux end customers and bill Linux users, making them sound like an unstoppable legal juggernaut (and sending their stock price through the roof).
On the other hand, in the courtroom, they hang their head and say "we're not sure what all has been done to poor poor us", they whine about having to conduct three lawsuits at once -- their suit against IBM, IBM's countersuit, and Red Hat's suit -- and try to play one case off on the other and file delay after delay in all three cases, stalling for as much time as possible before they have to admit that, they have no case, no proof
Groklaw is an amazing read. PJ is smart, she's thorough, and has a great body of volunteers helping her with research into SCO's claims, transcribing legal documents, and tracking down old emails and newsgroup postings. Comparing what SCO says in the media to what they say in court, it's obvious that Darl McBride has a reality-distortion field that makes Steve Jobs' look like a weak soap bubble.
Jay (=
When I was young, it was the plaintiff who was responsible for preparing enough evidence to present to the court, but in Darl's world, with army of lawyers who will be given 20% of the proceeds from the settlement or of 'a sale of SCO during the pendancy of litigation', apparently rules are different.
Nothing here to see, move along. Seriously, let's get hysterical about the real stuff in this suit, OK?
In the United States, both parties to a civil action are permitted to "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. Rule 26(b). Matter is subject to discovery if it is itself evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
To that end, parties may propund interrogatories (questions requiring written answers signed under oath), depositions, requests for documents and things, inspections of property and testing, and requests for admission. While there are limits to what can be obtained, pretty much everything relevant and not privileged is discoverable, even when it is incredibly expensive and burdensome to produce.
If a party doesn't produce it, the court may compel production by judicial order on pain of contempt or worse --the court may award sanctions and penalties, and ultimately can award sanctions that can go to the merits of the case, dismissing or awarding judgment for failure to comply.
It is and always has been the rule that a plaintiff is permitted to use discovery to compel production of smoking guns and killer evidence, even where the plaintiff (and particularly because the plaintiff) bears the burden of proof. That, by the way, is how Boies nailed Microsoft -- but for the expedient of discovery, the government probably would not have won its antitrust case.
Discovery disputes of this kind are routine in big ticket litigation. Nothing here to see, move along.
Relying on the 5th in a civil action is certainly permissible: no person is required under any process of law to give testimony that may incriminate him. Incrimination in this sense, however, only means that you would be subject to a criminal prosecution, and not that you would be subject to liability.
Sometimes, a defendant faces both -- a civil action may seek damages for conduct that, in fact, is criminal. A defendant could, at least in theory, refuse to answer a question on fifth amendment grounds to avoid making an admission that would send him to jail. That is his constitutional right.
But it would be a very bad thing to do in a civil action. if you take the fifth on an ultimate question, the judge may determine as a matter of law that your answer would have been the least favorable to you, and may so instruct the jury. When people start taking the fifth in a civil action, you just won the case -- not only rhetorically, because juries will always slam-dunk you, but legally as well -- depending upon the question not answered, you might be entitled to near-immediate summary judgment or a directed verdict. You just keep asking questions going to ultimate questions, and they either answer or they don't. either way, you win.
this is routine discovery in a civil action. IBM is not accused by the government of a crime, for which the fifth amendment applies. Even if it were, the plaintiff would still be entitled, either to the discovery, or a directed verdict in his favor.
Seriously though, is this just a mistake?
When all is said and done, nothing changes...
But actually, it is about *Control* and lack of freedom. And control is won historically by propaganda, and today's modern propaganda is FUD. SCO is on a mission to drag this mess out as long as possible and generate as much FUD as possible. So, IBM could take them to court for trade secret violations. What would IBM gain? From SCO? SCO wouldn't give a damn if they lose. Collect damages? After years of appeals? Give me a break. The damage will have already been done.
SCO is doing everything possible to stir the pot. They will do everything unexpected at every turn just to delay and create FUD. That is their mission.
Prediction: SCO sold another license this quarter.
You are being MICROattacked, from various angles, in a SOFT manner.
> IBM needs to send a donation with lots of zeros on it.
.orgs for the binaries and source of stuff I use on linux, so I only think it proper to send Pamela some money for her help here.
pfff. don't forget this is IBM you're talking about. dang, if they did that, I might go out and buy a ThinkPad. (unless those are leading zeroes, of course....)
anyway, Pamela & Co. are doing legal work for LINUX (not IBM) just like so many coders have done code work for linux (not IBM). GROKLAW is contributing to linux, not IBM, and that isn't lost on IBM: they aren't gonna pay for stuff given freely.
at least, that's how I see it. anyway, if we, as an open source community, value coders' work for linux, then we should also value the work done in other areas that supports linux.
I've sent money to a couple of
IBM's motion would require SCO to reply with specificity the file and line numbers of the exact pieces of code to which they claim ownership rights and the nature of the rights claimed.
SCO refuses to do this and their excuses are pretty pathetic, they simply repeat their original accusation that IBM is guilty of misconduct. IBM is pointing out that regardless of any claim that SCO may make to prevent discovery of this information by the defense it is material to their counterclaim and that they have an absolute right to that information as a matter of law.
If the judge has any guts he will simply order SCO to reveal with specificity the exact claims made within a short period of time with a proviso that if he believes the discovery to be made in bad faith he will simply choose a set of SCO's claims at random and if IBM can show these to be baseless make a finding of fact that SCO has failled to substantiate its claim.
This is not a new game for a vexatious plaintif to play and neither is the remmedy. I doubt that the appelate courts would interfere with a district court trying to force a plaintif to provide the defense with the minimum information they require to defend themselves.
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Try http://dotcrimeManifesto.com/