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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???
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.
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.
Suggestion for parent: Go to your slashdot preferences and filter out caldera stories. You will never have to see mouse-ears-on-a-globe again. As for me, bring 'em on!
~==>RocketSHE
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
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.
it's appropriate i think, given that 'i' is an imaginary number. seems to fit right in with SCO's philosophy.
Darl getting his ass kicked?
Now there's something I pay $699 to see.
Darl getting his ass kicked?
Now there's something I pay $699 to see.
No, there's something I'd pay $699 to DO.
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?
"Hello, this is Mr. McBride's office. Mr. McBride will fight you, but first he asks that you kick your own ass, in order to prove that Mr. McBride can kick you ass. After that, we'll schedule a time for Mr. McBride to kick your ass sometime in the year 2035."
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.
I don't think this is the fundemental problem.
Actually, the rise of the internet and ease of publishing in general, this *is* a problem.
People will seek out sources of information that *reinforce* their world-view. We will build these feedback loops and vertical chimneys where every group becomes more isolated from reasonable, objective opinion that they become convinced that anyone who disagrees with them is grossly misinformed and stupid.
I dont know what to do about it, I find myself reading websites and books that really just reinforce my own ideas.... in time, Idont know what the consequences of this behaviour will be. Polorization? Extremism? Where, how and who will faciliated comprimise and understanding?
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 (=
IAAL . . . (although I'm probably not licensed in your jurisdiction) ;-)
You can discover ANYTHING which is admissible or REASONABLY CALCULATED TO LEAD TO ADMISSIBLE EVIDENCE, subject to only a few areas privileged agaist discovery (e.g., attorney-client communications). That means that "fishing" IS de facto allowed, subject to the rules of evidence (which are pretty damned liberal).
In complicated cases it often comes down to exactly what is going on here: the trial court judge is asked to rule on what is and is not to be handed over.
The Coke Formula analogy above is not a good one because courts can (and often do) allow discovery of trade secrets but subject them to protective orders limiting who has access to the material, how it is to be distributed and copies, how it is to be handled (returned or destroyed, usually) after the litigation, etc.
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.
Just tinfoil hatting a bit, but could IBM use this opportunity to badly hurt HP, their nearest competitor? ...
OK, this is a misconception I keep seeing, and I would like to clarify.
IF SCO code is inside of Linux, it is NOT LEGAL for ANYONE to distribute Linux until the SCO code is removed.
If SCO code is in Linux, SCO doesn't own Linux. They just own the bits of code they own; the entire REST of the linux kernel still belongs to the individual authors.
The individual authors have only agreed to let the bits of code they own be released under the GPL. The GPL says that if you distribute GPLed code, you MUST be able to state that ANYONE will be able to redistribute the code with NO extra limitations besides those of the GPL (with the only exception being that people *may* be prohibited from distributing into countries where the code is illegal under local laws).
So: IBM *cannot* just settle out of court with SCO and continue on while HP gets whacked. If IBM gains the right to distribute the hypothetical SCO portions of the kernel, then HP automatically gains the right as well. And if HP does not gain that right, then that means *IBM does not have the right to distribute Linux at all* because they would be violating the license rights of every single kernel contributor EXCEPT SCO [and themselves].
In fact, it would mean that until that limited, GPL-incompatible SCO code is removed, *no one* would be able to distribute Linux legally. This is the problem. SCO can *never* collect license fees for any hypothetical code it has in Linux, from IBM, HP, or anyone else, because the instant that code is revealed to be real, it must immediately be removed from Linux, period.
Now, once it is removed, SCO could try to claim damages from HP for the time its code spent in Linux, but between the fact that in this hypothetical case 1) HP would be an unknowing transgressor and 2) HP was using code that IBM had in apparently good faith presented to HP as being owned by IBM, HP could brush off any lawsuits easily. When you add the 3) problem SCO failed to mitigate damages at all and 4) SCO very probably *granted* HP an unlimited GPL license to distribute SCO's "poisoned" code by distributing Caldera, HP would be able to laugh such a case out of court even more easily than IBM is going to laugh the current contract-based case out of court.
(And of course, all of this assumes SCO's "stolen" code is real. I see no more or less reason to take such an idea seriously than I see a reason to believe the works of H.P. Lovecraft are actually true.)
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
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.