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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.
Here's the gun I want to shoot you with, will you load it for me?
Isn't it interesting how you come to recognize posters based solely on their sigs???
Kinda cool to see a reference to a Groklaw URL in IBM's filing. At least ONE of the legal teams knows where to look.
SCO's team, on the other hand, probably starts chewing the rug everytime there's an update...
[IBM] I plead the fifth! [SCO] You can't! We need your testimony to prosecute you!
.. It's not entirely accurate to what's happening, but it's an interesting comparison - and an ironic one - to SCO attacking GNU for being against the US Constitution.
Hopefully the judge will take one look at this this and ask SCO exactly why they arn't prepared to say what they have on IBM.
Did anyone else get excited when they saw that tag line? I love Scorched Earth, the mother of all games! There is actually a 3D multiplayer version now that I like very much.
SCO.com uses Linux
Sorry to break it to everyone but it works that way for both sides under the federal (and most state) rules of civil procedure. Each side is entitled to request information and materials from the other. If you decline to provide the requested information or material (documents, etc.), the requesting party has the option to ask the Court to force disclosure. You have to have a pretty good reason (usually some kind of legal privilege) to justify noncompliance or you risk sanctions (like monetary fines or the Court making a factual finding against you or perhaps even dismissing your case). 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.
Here is my favorite quote from that article:
My comments on that quote: I'd be willing to bet that whoever challenged Darl to a fight would have actually done it, but Darl, upon finding out that he was about to get his ass kicked, chickened out.What do you think?
(1) These were some of the words off the magazine's cover. The entire title is: "Is SCO Group's Darl McBride THE MOST DANGEROUS MAN in the technology industry? With a lawsuit imminent, Linux users are about to find out.
--
Reference: "You May Be Next" by John Foley, InformationWeek, Nov 24. 2003, pp 20-22.
$CO sux0rz!! Linux r00lz!!
Could someone with financial background tell us if this is related to SCOX waiting to report their earnings for another two weeks?
Any correlation? How would these moves affect their reports?
*dons tinfoil hat*
There's a 68.71% chance you're right.
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.
Check out this snippet from the footnotes at the end:
[1] Object or binary code is the code computers use and appears as a series of is and Os.
Someone please explain to SCO's attorneys that:
i != 1
and
O != 0
Don't they have ANYONE in their office who knows enough about computers to proofread this stuff?
"Lawyers are for sucks."
- Doug McKenzie
The Fifth Amendment protection against self incrimination applies only to criminal cases, not civil suits.
McBride's argument is grounded in the Constitution. (Well, close to the constitution. He quotes the text of the constitution to be:
Actually, the framers didn't say anything about "open source advocates.")
I only found the pieces that make up McBride's quote in his letter, not the whole thing in a single sentence. He has to at least quote the guy correctly, or credibility for the remainder of the response is lost.
OK somebody has to have some DeathHeads to rain upon SCO's tank.
"I am a kernel in the linux army"
It seems that Darl & Co. have a very specific (and obviously very wrong) idea of what the GPL actually is. They seem to believe that Open Source advocates think the GPL applies to everything, just automatically. This is in accordance to their paranoid beliefs that Linux is actually SysV Unix that was "stolen" with the GPL. I can just imagine this happening in court:
IBM: "No, actually Mr. McBride, the GPL can only be applied by the copyright holder. Just like any other license."
Darl: "Umm, you mean... So the GPL... Hey, look over there!" *flees the country*
-3Suns
~~~~
The Revolution will be Slashdotted
The good stuff is from IBM:
http://sco.tuxrocks.com/Docs/IBM/Doc-86.pdf
It's "put up or shut up" time for SCO. Read and enjoy.
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.
SCO has requested "all versions or iterations of AIX". Why can't IBM request all recent versions or iterations of SCO products to look for inclusion of GPL code? There has been some evidence that such inclusions or copying has occurred.
Precedent: Rudolf Diesel patented the Diesel cycle engine in 1898. One of the reasons that the far less efficent Otto cycle (4-stroke gasoline) engine was/is more widely deployed is that Diesel would only license his patent for what he considered 'best use', requiring that Diesel engines must inject fuel continuously into the combustion chamber thoughout the combustion/power stroke.
This dictated a much lower power:weight ratio in early Diesel engines, which is appropriate to stationary power genaration but represented a distinct disadvantage for traction-power and automotive use.
Diesel's approach to license was probably not the most lucrative either for himself or society at large, however the *property right* granted by patent (and copyright) law let him make that determination.
To my mind whether commercial EULA, BSD, GPL, Artistic, all licenses fundamentally serve the purpose of allowing the *Author* a degree of control over the application and distribution of his/her work.
This is also how we get an OSS environment where two different Authors (say Linus Torvalds and Richard Stallman) have the right to apply the same license (GPL) according to their own wishes.
Process rights are a good thing. SCO's making the best case it can but I really think it's going to backfire on them. Their rhetoric really doesn't stand up to analysis.
Linux is Linux, if One need clarify their dist: <Dist>/GNU Linux
bsds are of course just BSD
I'd like to point out that the work that Pamela Jones & Co. at GROKLAW is clearly of some real use to IBM in this case. another poster has already mentioned that IBM has specifically cited a transcription GROKLAW produced in their recent filing.
I would also like to remind others that there's a little paypal donation button on the front page of GROKLAW, as mauryisland pointed out elsewhere.
click that button. give her a holiday bonus, just enough to make it hurt you a tiny little bit. and let's see just how robust PayPal's servers are.
Are we in Soviet Russia?
Outdoor digital photography, mostly in New Engl
Then post to the main page when there's something really big coming, and otherwise let everyone else go on with the usual kernel rumours, Ogg design wins, etc. etc.
I enjoy GrokLaw a lot, and I'm (trying to) read /. for more general news items.
[Rant off :]
I'm in a Unix state of mind.
IANAL
You cannot request EVERYTHING. The stuff you request has to apply to the case.
That's why it shouldn't matter what IBM has in versions of AIX that were NOT released.
As for the stuff about demanding that IBM identify all the code it contributed to Linux........
That is what SCO originally claimed. SCO says that IBM contributed code that IBM did not have the righ to contribute without SCO's permission.
Now SCO is demanding to see the code that IBM contributed.
This is what is known as "Fishing". You demand EVERYTHING and hope to find SOMETHING that is actionable. And "Fishing" is not allowed.
it's appropriate i think, given that 'i' is an imaginary number. seems to fit right in with SCO's philosophy.
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
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
And they should just, ah, hand that in with the TPS reports.
What's unreasonable about that?
-Looking for a job as a materials chemist or multivariat
This is not quite correct. A party to a civil suit can refuse to answer any question (at trial, in a deposition, or an interrogatory) only if the answer might incriminate them. You can't refuse to answer for no reason. In practice, it isn't a viable option for companies like SCO and IBM to say "we are crooks, therefore we won't answer your interrogatory."
The fifth amendment privilege cannot, however, prevent you from handing over evidence. So if I seek a memo from you, and the memo indicates that you may have committed a crime, you have to cough it up. The amendment protects against forced testimony, not forced production of information already written down.
Yes, IAAL, but not a criminal lawyer.
In my experience, when somebody has a strong argument about why they have been wronged, the argument is fairly easy to make and usually reads clearly and with a logical flow. But since SCO won't put up or shut up regarding the allegedly pilfered code (and what little they put up was thoroughly debunked) -- Darl is stuck making this hard-to-follow argument about why his company's business practices are what the Founding Fathers fantasized about when writing the constitution.
So instead of getting clear and convincing evidence that SCO's code was stolen, we get this poorly written argument that the GPL is immoral and illegal.
Let me make a comment on the GPL that Lessig hasn't made, and that I think gets to the heart of why Darl's arguments are pathetic.
I think Darl would have a great case that the GPL is illegal if the terms of the GPL license conferred greater privileges to the software developer than do licenses that come with store-bought proprietary software. But the fact is that, under the GPL, the developer is voluntarily surrendering some of the rights he would gain under normal copyright. And he's not claiming any other rights beyond what's normally handed out under the copyright law.
This is where Darl's anti-GPL argument breaks down. He's given no convincing explanation why a software developer can't voluntarily surrender some, but not all, of the rights gained by copyright.
Frankly, the only reason everybody's not tearing gaping holes in Darl's open letter is that it's so poorly written that it's hard to know what the hell he's talking about.
I'm generally "Interesting," "Insightful," and even "Funny" here. What the hell happens to me at parties?
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
A few years ago in Belgium, when the "Vlaams Blok" (Flemish extreme right wing party) was gaining a lot of momentum, the established parties agreed to a "cordon sanitaire" (cord of cleanliness) around that party.
They agreed no one would cooperate with the Vlaams Blok to form a government, however profitable it might have been for each of them (practically or power-wise) separately.
With this "gentleman's agreement" they managed to keep the Vlaams Blok out of government. The agreement only worked on the basis of all partakers abiding by the agreement.
I hope the big software/consultancy companies out there will make up some sort of similar agreement between them, that no one will buy SCO whatever happens.
Let them perish in shame, let the shareholders and management lose all their money. That'll teach them.
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!"
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.
IBM should comply with discovery by giving SCO a text file containing binary code converted to ascii "i" and "o".
There are no trails. There are no trees out here.
But you are right, on SCO's site the "open source advocates" do not apear.
Darl's open letter claims that GPL and Free Software Foundation are hurting their Pure Software business model. On the other hand, many companies, including IBM and RedHat are making profit using GPL and Free Software. Why would any judge invalidate GPL and hurt corporations that adapt their strategies to changing markets just to satisfy corporations like SCO who base their business on outdated models ?
getSexySig();
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.
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.
Pig shit stinks more, the stench sticks to your skin - truly nasty! Perhaps you may want to consider 'liquified' manure as well. This can be brought next to their building and be pumped in through any opening at high pressure. The poultry shit is truly nasty, with a high enough ammonia content to make your eyes water. Horse and cow shit are not that bad and don't stink long, go for the nasty stuff, pig, poultry and dog shit. properly applied, some of this shit can actually kill a man.
In other words, SCO believes it owns AIX and Dynix, and that IBM used SCO's AIX and Dynix code to improve Linux.
On the other hand, SCO is or has been distributing software that was released under the GPL and BSD licences. They have voided their right to do so. They have allowed software released under BSD and almost certainly GPL licenses to be inserted into their Unix variant.
Under the DMCA and CA76, the FSF and UC can demand that they stop distribution of any Unix-like operating system until all GPL/BSD code is removed.
Suing SCO for violation of the Copyright Act might not be successful in court, but it could be. Even if the suit were to fail (or more likely, SCO go under before a trial), the publicity of such a suit would make it obvious that Open Source adherents are not anti-copyright. We just prefer a different EULA.
What's really wrong with SCO's position? I agree with Lessig:
In SCO's open letter [slashdot.org], they say:
Their argument is that the profit motive is what is important about copyrights. According to SCO, the intent of the author and his right to control the distribution of his work are a secondary side effect of the profit motive and our economy's need for him to profit from his work.
That twisted paradigm underpins SCO's business plan, their market strategy, and their case against IBM.
I believe it's time to sue SCO, in order to make clear that it's the author's right to control his work and who profits from it that matters, and not just his right to profit.
sigs, as if you care.
Want to reach the IT Community? Want to get to Linux users? Have an important message you simply must convey in serious terms to IS Professionals?
We have the answer! The staff of ATTORNEY DAVIS BOIES will sue anyone - AND WE MEAN ANYONE! - to get your message across. Don't have a case? That's okay, we don't care! We expect to lose.
Nothing will get your word out faster and with a more poigant stab than a lawsuit. We managed to get our three-quarter dead client SCO the front page of popular news site Slashdot over a hundred times this year alone!
Here are some quotes from our clients:
"We were just about to go under, so with the help of ATTORNEY DAVID BOIES, we went ahead and claimed ownship of the whole of UNIX! We probably won't win, but our stock is up thousands of percents!"
-Chris Sontagg, unnamed tech company
"I am a stupid monkey, but all up-to-date IT professionals know my name. Did I just say up to date? David, quick, patent that term so we can sue Red Hat!"
-Darl McBride, professional Ass Hat
You too can get the word out! Just call ATTORNEY DAVIS BOIES at 1-888-US-FRAUD!
Give SCO exactly what it's asking for! Fire up the old 132-column line printers, print it all out on old quadruple spaced green/white fanfold paper in all upper case, hire 50 semitrucks and an army of Teamsters, show up at SCO headquarters in Utah, have the Teamsters swagger in and demand "Hey Darl, where d'ya want this stuff?" then proceed to dump it all in the lobby... priceless! Of course, some environmentalists might complain about the wanton destruction of trees, but it would be worth it!
"Freedom means freedom for everybody" -- Dick Cheney
See comments on Groklaw or Yahoo! SCOX BBS.
SCO has 30 days to provide their evidence.
Both IBM motions to compel granted.
None of SCO's.
Boies & Heise were no shows.
Darl's brother Kevin argued.
Perhaps we should fill the SCO offices with these WMD's (which sound like biological weapons to me) and get Blair and Bush to declare war on them.