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SCO Ordered to Produce Evidence
harmless_mammal and others wrote in with news from the SCO-IBM hearing in Utah today - apparently the judge has ordered SCO to respond to IBM's discovery requests within 30 days. IBM is asking SCO to tell IBM precisely what code it is alleging is infringing, and to date SCO has failed to show any evidence whatsoever. Some reports from the hearing are at Groklaw, which is already slow under the load. If SCO continues to fail to produce the evidence they've claimed they have, the judge will likely be very displeased, perhaps dismissing the lawsuit entirely.
We can end all this SCO crap. Though I get the feeling that they've already gotten what they want...
LOAD "SIG",8,1
You know you have a popular site when you are Slashdotted even before your story hits /.
They better be careful or SCO may sue the judge.
Hopefully the judge will order SCO to pay for the courts' time in filing such a meritless suit, a practice I believe our entire tort system should follow.
IBM does not have to respond to any more of SCO's interrogatories until and unless SCO coughs up and SCO's motion to compel is heard in late January.
Also, SCO admitted that IBM didn't put any Sys V code in Linux. They are claiming that IBM misappropriated Unixware trade secrets they learned in the Monteray project. They are also claiming that IBM had a contractual obligation to keep RCU, and NUMA technologies confidential. Expect that argument to be thoroughly demolished by IBM's crack legal team as opposed to SCO's crack-smoking legal team.
A big win for IBM in this legal chessgame.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
I think SCO will either give the information (although probably not with "specificity") or else dismiss the suit on its own.
What's in it for SCO? They can only dismiss their own suit, not IBM's countersuit. Dismissing their own suit would be pretty damned close to admitting culpability in IBM's countersuit. Okay, their company is on its way to destruction anyway but I think they'll choose for a long drawn out death, not a quick one.
IANAL, but I believe in cases were trade secrets are required to come out for the purposes of having a fair trial the Judge can have that evidence sealed so that it doesn't become part of the public record.
X(7): A program for managing terminal windows. See also screen(1).
I know that I for one do NOT want this case dismissed. I would like to see it finished out for the future of Linux and the GPL. Let's put all this rubbish to bed. If this thing goes to court and SCO losses, then Linux and the GPL will be that much stronger. Less likely to be attacked down the road.
their company is on its way to destruction
And they're sure making their time.
Great... so instead of posting a mirror, they make ABSOLUTELY SURE that Groklaw melts down.
I'm sorry, guys, but I really think this is crappy. You cry about how it's hard to mirror stuff, because it would require *gasp* permission. So instead of taking a little extra time, particularly when you know that the remote server ALREADY can't handle the load, you aim tens of thousands of hits at them.
I'm sure this isn't the intention, but it is essentially a deliberate DoS.
Enough excuses, already.... the prior permission thing just doesn't work anymore. Google mirrors practically EVERYTHING and they don't have specific permission. You can live by the same rules they do.
At the VERY least, in cases where the server is already obviously choking, post a synopsis without a link.
The courts are seldom presented with cases as completely devoid of merit as this one.
I certainly wonder if the judge will dismiss the case out of hand if SCO turns up next to nothing yet again in 30 days time. I don't expect an outright refusal, I expect a second game of hunt the copyright violation. But I also doubt that the judge is going to allow SCO to simply slide until the next 30 days ad infinitum.
Instead I think that the court will start with remedies like a fine and sharply reduce the scope of the case, if sco will not reduce the number of claims the court will. It happens all the time in complex cases, if you claim the defendant engaged in malpractice on 10,000 occasions the judge will tell you to pick five specific instances and the case will proceed from there. If you won't choose the five instances the judge will choose for you. If you loose on those five instances you loose the whole case.
Courts are real sticklers for deadlines in cases like this where they suspect one side is manipulating the system. The appeals courts have no sympathy either. Court dockets are overcrowded enough as it is.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
"Each side has spent bucketloads of money and all the judge could come up with so far is 'Shit or get off the pot.'"
In all likelihood, the lawyers that IBM uses are on retainer, and this hasn't really cost IBM much for legal fees. Thing is, this smear campaign has been damaging enough that once this is all said and done, IBM will be able to add libel and slander to it's complaints against Darl and his other brother Darl. All that they'd have to supply is proof of lost business or delayed business from people cancelling orders citing the SCO fiasco, and even if they're just delayed orders, IBM is a large enough company that months of inflation alone might be enough to show lost revenue.
The bitchslapping of Caldera is something that I'm looking forward to.
Do not look into laser with remaining eye.
IBM was extremely precise on what specificity means. By granting the motion, the judge also agreed to their definition of specificity. By bulshittin they will contempt the court and this is not a wise thing to do. Not that MSFT did not do that for several years for example.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
Even IF the SCO crime syndicate is thrown out of court, they will continue to "plead their case" in the media like they've been doing. They've already got a few trained seals slapping their fins on command in the media (like Didio) in their favour.
SCO needs a MAJOR smackdown if we're ever going to shut them up good.
Well, this being federal court, the most common punishment for refusal to comply with discovery after an order compelling is to assess financial sanctions against the offending party's counsel[*]. I hope Boies et al really DID get millions up-front in addition to their 20% stake in any buy-out or settlement
[*] The theory being that it is an attorney's duty, to the court, to assure that his client plays by the rule.
utter rubbish
It basically means what IBM defined it to mean in their requests for production -- if I remember correctly, to identify the version of the OS or kernel the code is in, the file name, and line number(s). SCO's famous list of SMP (etc) files did not identify the version or line numbers, and the file names were from Linux rather than SysV as IBM requested. In other words, SCO produced an absolutely worthless list and gave it to IBM, then argued they had satisfied their obligations as plaintiff/counter-defendant.
1. Detailed migration plan and tools to ease transition from SCO UnixWare to Linux. This includes researching companies that will do his service. A paper showing hard numbers on the cost savings and benefit of migrating away from SCO Unixware.
2. Create a collection of testimonials from former SCO customers who has successfully migrated away from SCO products.
3. Extensive benchmark showing inferiority of SCO Unixware.
4. Feature comparison between SCO Unixware and Linux.
5. Create a list of things Linux can do that SCO products cannot do.
6. List of hardware that Linux supports which SCO products do not.
7. Create a list of companies using SCO product and educate these companies about findings from 1 - 4.
8. Urge Free Software and Open Source developers to drop support for SCO Unixware across all softwares being developed. GNU Software (GCC, Emacs, libraries, autotools, base utils), Samba, Apache, OpenSSL, OpenOffice, XFree86, Gnome, KDE, etc.
9. Dissemination of information regarding insider trading of SCOX stock. Collection of detailed information on who is selling how much shares and when.
10. Analysis of all SEC filings by SCO especially that part about disclosure of all SCO's competitors and it's liability with investing money in SCO.
11. Create a collection documents debunking every single press releases, interviews and official statement made by SCO officials. Dissection of every sentence ever came out of Darl McBride's mouth clearly citing fallacies, misinformation, and contradictions.
12. Create a list of all patents held by SCO and then systematically try to disprove the validity of those patents by citing prior art.
13. Start a letter writing campaign to Wall Street analysts of all the findings from above. (There has to be Linux users who has connection to Wall Street folks.)
Any thought?
Against a legitimate plaintiff, that'd be the end of it.
This is SCO we're talking about. They make demonstrably false statements. Their press releases are full of self-contradictions. They haven't shown one whit of givashitness for the facts up to this point, what on earth makes you think they'll actually comply with a judge's order?
True enough, but they may determine that the cost of litigating SCO into the ground is worth making it crystal clear that they don't put up with this kind of thing. A quick settlement, while not as expensive right now, wouldn't entirely close the book on 'is Linux a safe choice for my business?' Seeing as Linux is big business for IBM, they may decide to go for the easy kill now and avoid problems from someone else later...
Obliteracy: Words with explosions
No, SCO has seriously damaged IBM's business, taking money out of their pockets. IBM needs to make an example out of them, preferably getting the SEC involved. You DON'T want to send the signal that "playing the Linux lottery" has no downside; that would only encourage other slimey types with no viable business model to attempt simular tactics. Oh, and if IBM is anything like Intel, their lawyers get paid the same regardless of whether or not they crush SCO into greasy pink pancakes, so letting SCO off easy won't save IBM any money.
"Freedom means freedom for everybody" -- Dick Cheney
Spending the extra money now will keep others from trying it and save money in the long term.
A warning to the others is ample reason for IBM to grind them into the dust.
If it were just about this case IBM would have just bought them outright since odds are that would have been much cheaper than this drawn out legal battle.
> If IBM doesn't think it's a good investment, IBM probably won't push it.
I completely agree, but it might be in IBM's best interest to discourage future lawsuits of this sort. I don't think they'd keep the countersuit out of revenge, I think they'd keep it so this sort of thing is less likely to happen in the future. I suppose it could be a double-edged sword if the GPL is ruled against, however. Even if the future lawsuit wasn't again them, they do have enough of a stake to want to prevent future FUD.
We don't need another SCO.
Dear Santa
Thank you for the most excellent gift, and early to boot!
Now, if you could just see your way to also delivering my request about spammers, I will endevour to be a VERY good boy this year.
www.eFax.com are spammers
No.
IBM stands accused by SCO of breaching a contract between the two and divulging priviledged information or methods to others by contributing code to Linux.
IBM has as customers the governments of just about every country in the world that can afford to invest in IT. IBM provides solutions to hospitals, research centers, and buisnesses all who deal in sensitive or proprietary information. IBM can not have people going around saying that IBM broke a contract, especially by not treating sensitive data or methods correctly. IBM must, as a buisness priority, have SCOs claims declared completely baseless.
Which, cheerfully enough, means that IBM can't settle for anything less than the complete dismantling of SCOs claims, which will be quickly followed by the destruction of SCO by IBM's counter claims.
I started out thinking about all the ways that I could demolish his argument (not terribly hard), when the thought suddenly occurred to me that, in a sense, that was exactly what SCO wanted.
Let's use a little common sense on the whole SCO thing.
First off, toss out a couple of emotionally popular but rather unlikely theories:
1) Darl McBride is insane, in the medical, legally-incompetent sense of the word. If he was, the rest of SCO and the Canopy Group would have shut him down a long time ago. Similar reasoning applies for "unbelievably stupid", "totally ignorant" and similar epithets.
2) #1 is true, but for everybody in SCO and Canopy, not just Darl, which is why he's still there. Ok, c'mon. If you're that out of touch with reality, talk to your doctor about upping the dosage on the little green pills.
A common allegation is that Darl McBride is a greedy money-grubber with the morals of an advertising exec. This is probably true, but in America, at least, being greedy on behalf of your company is not only not frowned on, it is (somewhat) required by law. (There is a SEC regulation that requires all publicly-owned corporations to try and maximize the value of their stock. Since it says nothing about HOW that's to be done, the range of tactics is pretty wide. You won't find any American corporations saying "We gave away all our profits, 'cause we felt like being nice guys", though.)
SCO's basic strategy is obvious: Fire the shotgun everywhere possible, as often as possible, and see what sticks. I saw an article the other day that said the software business in 2004 was predicted to be about $230 billion. If SCO can get 1/10 of 1% of that, they'd be ecstatic.
Another characteristic that McBride has, he shares with lawyers, politicians, and most high-powered types in business: a thick skin. I very much doubt he has been bothered in the least by the various vilifications called down on him by his detractors.
I think he was a bit surprised at it when it first started, but since then, it's been more of a weapon in his arsenal than anything else. If he is not bothered by name-calling and accusations, but the other side (the open source community, in general terms) is, then the more furious the argument, the better his odds of being able to find a weak point and exploit it somehow. At the very least, he (and SCO) can point at all the ranters and ravers and claim "With enemies that act like THAT, doesn't it make sense that we're the ones in the right?" (Something along these lines may be what got the money out of Baystar.)
If you're caught up in a strong emotion, you're not entirely sane. If you're angry, all kinds of little things you would ordinarily blow off make you even angrier. If you're ecstatically happy, you can find a silver lining in a mushroom cloud.
The reason I brought up politicians, lawyers, and CEOs earlier is that they all have one thing in common. I called it a "thick skin" earlier. Another way to describe it is that they have the ability to climb out of their emotions and think rationally again about whatever the subject is. That ability is what gets them paid the big bucks.
So what I think SCO is doing with a lot of the more unbelievable claims they've made (like the attack on the GPL last night) is not to seriously convince anyone of that position, it's to stir up trouble. The more emotional the opposition gets, the better the odds that something, anything, will happen that he (they) can exploit. It goes with the shotgun approach: the more you get things stirred up, the more targets of opportunity there are.
Fortunately for IBM, they have good lawyers, who haven't been influenced in any way they shouldn't be by the public furor. They simply stuck to the facts and the law. My favorite element of what they've been saying is that it's mostly in plain English. When one side speaks English and the other sid
I'm not sure if that's true, or at least if it's true in the sense that you mean it. Part of the defensive value of IBM's suit is from making an example of SCO. IBM wants to prove to anyone else who might be thinking of launching a nuisance suit that it's a really, really bad idea. If the result is just a draw, or even a small win in IBM's favor (like SCO agreeing to pay legal fees) then there isn't sufficient example. If, OTOH, the final result is smoking craters where SCO, Canopy, et. al. used to be, it sends the much stronger message that suing IBM is a good way to lose everything.
There's no point in questioning authority if you aren't going to listen to the answers.
Somebody else pointed out an additional dimension, which is that IBM feels that its integrity has been impugned. A key part of SCO's suit is that IBM has failed to live up to its contractual obligations. That's a big deal in business, because nobody will want to deal with you if they don't believe that you'll hold up your side of the bargain. IBM clearly has a very strong business reason to want their reputation cleared, which is a driving factor behind the Lanham Act violation countersuit. I sincerely doubt that they would accept any deal that didn't clear up that issue unequivocally.
There's no point in questioning authority if you aren't going to listen to the answers.
Judge Tells SCO: No, *You* Have to Show the Code First
Friday, December 05 2003 @ 04:13 PM EST
The big news from the hearing today is that Judge Wells told SCO that they have to go first. They have to show IBM what code they are alleging is infringing. All during discovery, SCO has been telling IBM they had to show all their code first, and then SCO would identify the alleged infringements. IBM kept telling SCO in reply that they had the burden, as plaintiffs, to at least tell IBM what code was involved. Today the judge told SCO that IBM was right. SCO has 30 days to comply. IBM doesn't have to turn over anything until they do it. The judge's order will be filed Wednesday, and SCO has a month to show the code. They can't force IBM to go first. That dance is over.
Cody Hilton of Guru Labs , a Utah Linux training company, attended the hearing, and the second big piece of news is that David Boies didn't show up. Darl's brother represented SCO. His brother is Kevin McBride, the same person we noted who was involved in writing the Open Letter yesterday.
Why Boies didn't show up is hard to understand. And then again, maybe not. Brent Hatch was there and so was Darl. There was no media presence at all. Or more accurately, there was a lot of press there in the building but they were all there to cover the Olympic bribery trial , which got thrown out by the judge. Nobody in the courthouse was interested in talking to Darl today, according to my eyewitnesses, to the extent that they noticed, and they were looking.
Cody talked to him, though, after it was over. He asked him why he was there, and Darl said he just wanted to get a feel for it. Cody asked him what he thought about how it went, with IBM winning both motions. Darl said he expected it. Cody rode in the elevator with IBM's Marriott and asked him how he felt about how things went. Marriott said, "We're happy. Everything went as we'd planned. We're happy with the decision."
For IBM, it was David Marriott and Todd M. Shaughnessy. There were about 15 people there sitting in the gallery, including one woman, who rumor had it might be the patent attorney SCO hired and mentioned as possibly having a conflict of interest. But that is only a rumor.
The room was small, with maybe seats in the gallery for about 20 people, but no one was denied entrance. There were seats available.
Cody says that when the judge entered, she told them that it was her inclination to grant IBM's motions, and then she let both sides speak. First, SCO's Keven McBride spoke for about 40 minutes. The judge interrupted a few times and to Cody, it seemed like the presentation was hard to follow. Basically, he was arguing that IBM should hand over code first, so SCO could go over it and then categorize the violations as to whether they were copyright violations, trade secret, etc. Then Marriott spoke for IBM. He spoke for only 20 minutes. Cody described it as clear, crisp, easy to follow, easy to understand. He cited a case, Xerox Corp. v. International Business Machines Corp., he believes, which you can find mentioned here, in footnote 3 of IBM's Memorandum in Opposition to SCO's Motion to Compel Discovery, where the judge ruled like this:
"[3] See also Xerox Corp. v. International Business Machines Corp., 64 F.R.D. 367, 371 (S.D.N.Y., 1974) ('[Plaintiff] should be able to identify in detail the trade secrets and confidential information alleged to have been misappropriated by [defendant]. Clearly until this is done, neither the court nor the parties can know, with any degree of certainty, whether discovery is relevant or not; and it is doubtful whether [plaintiff] can undertake a meaningful discovery program'.)"
The hearing lasted an hour and a half.
Frank Sorenson was there too and he also reports similarly:
"Judge Wells came into the courtroom, and announced that she had read all the filings and the relevant case law, and it was her intention to grant IBM's Motions and postpone any further Discovery until this matter was
1. GPL has never been involved in a court case, so some buisnesses see it as unproven
IBM is not "some businesses" nor would IBM waste it's legal resources looking into matters that concern "some businesses".
2. What happens to the next piddling little company running out of money that may have something that they can BS into making it look like it's a big deal?
Huh? In no way could the countersuit set a precedent that "piddling little companies" should automatically lose to IBM. Each case of copyright infringement must be examined individually. Precedent plays no part.
3. Litigation is expensive, and SCO made IBM do most of the research already... does IBM's legal department want to look like they just wasted $$? In most businesses, that isn't a good thing for the department.
The amount of money already spent is completely irrelevant. IBM must weigh the remaining costs against the projected benefits of crushing SCO vs settling. Given that pursuing this in court will be very expensive (research is just one of many costs) and that crushing SCO doesn't benefit IBM any more than settling, I think the choice is easy. And the research money is certainly not "wasted" if it leads to SCO's law suit being dismissed.
4. I know some people at IBM have got to be emotional over this. So throw back in the we are pissed at sco part. :)
Since when did lawyers make important monetary decisions based on their emotions? Or the emotions of Linux advocates? Not likely.
5. If they win, given that IBM registers it's copyrights (please please tell me if I am wrong)
You are wrong.
The winnings could definately help defray some of the cost of Litigation
Let's speculate here. SCO has used shady legal shenanigans for years to pump up it's stock. All large purchases it has made have been mostly in stock. It's executives are being paid because dumbass investors believe their lies and buy their stock. Within about 0.002 nanoseconds of SCO losing their case against IBM every investor in the world will realize that SCO has no source of income, no product worth buying, and insufficient cash reserves. All of SCO's "wealth" will vaporize as their stock plummets. At this point any award against SCO is worthless because they won't have any money to hand over to IBM. So, why exactly does that seem like a worthwhile pursuit from IBM's perspective? (Hint: it doesn't.)