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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.
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.
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.
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.
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 (=