SCO Files Response To Demand For Evidence

The Welcome Rain writes "SCO has posted its notice of compliance with the court order of December 12, which required them to produce evidence. The document itself is brief, but refers to a sixty-page supplement which lists the offending lines, and asserts that it can find more when IBM produces some of the evidence demanded of them by SCO. Millions of lines on sixty pages? How silly."

Comments

Files and line numbers may be sufficient

[int2str]

You can fit a lot of files and line numbers on 60 pages, so I wouldn't dismiss it just because of the "millions of lines of code".

Now my experience with legal documents suggests that it's hard to say much in 60 pages legalese periods, but the note that they complied with the courts request is not enough to speculate on how valid their response is. We will have to wait until the judge (and IBM) have read it.

Re:Files and line numbers may be sufficient

[rgmoore]

But it's not sufficient for them to list the lines of code that they think are in violation. They also have to say why they think so, how SCO got the rights to them, what evidence they have that IBM put them into Linux, who else might have seen the code, and what steps SCO has taken to prevent those others from disclosing the code. That's a heck of a lot of information, and that's just about the code disclosures. SCO is also supposed to be answering questions about IBM's alleged unfair competetion, interference with trade relations, and breach of contract. For each of those allegations, SCO has to provide a detailed description of who at IBM did what when. I think that they'd have a hard time putting all of their allegations about one of those topics into 60-70 pages, much less all three and a detailed answer about all of the code that IBM has supposedly misappropriated.

My gut feeling is that the big consequence of this is that SCO will be forced to drop most of their claims. Their only real argument (and this is streching the idea of a real argument pretty far) is that IBM violated the confidentiality provisions of the Software Licensing agreement. IBM's actions in donating RCU and JFS are quite well documented, and would constitute a violation under SCO's reading of the agreement. I have a hard time imagining a judge or jury buying the "All Your Code Are Belong To Us" interpretation, but it's the most reasonable and best supported argument that SCO can make.

Re:Files and line numbers may be sufficient

[dgatwood]

Try again. If there are 3000 lines on 60 pages, then let's assume that each line contains something like:

foo.c: 100-175, 500-580, 800-845, 960-1260.

Six-hundred lines per line, that's 1.8 million lines of code. And with a more reasonable 80 lines per page....

I'm not saying that they're not trolls, but you can't assume that they haven't complied. :-)

Re:Files and line numbers may be sufficient

[canajin56]

Wrong.
I doubt they said:
foo.h line 16
foo.h line 17
foo.h line 18
...
foo.h line 90

They just as easily could have said "foo.h lines 16-90"

Further, if some file had multiple blocks copied from it, they could have these ranges on the same line also: 16-90, 1750-2001, 3000-4089, and so on.
Therefore, you can say nothing at all about it, other than the fact that they span less than 3600 different files.

Re:Files and line numbers may be sufficient

[13Echo]

The linux kernel contains more than 4 million lines of code. At 60 pages, SCO would be lucky to have at least 3000 lines of code, at best. That is hardly even a fraction of a percent of code.

If, by some ridiculous chance they are able to prove that the code is "stolen", then it will be up to SCO and IBM to iron the issue out. Theft is not justified, in any case, but SCO does not have any right to lay claim to the entire Linux kernel for their own purposes, regardless of their bogus reasons.

In any case, 60 pages of code is piddly stuff when considering the size of the Linux kernel. Regardless, it will be up to a judge to decide the outcome, as you have mentioned. I, for one, feel that SCO doesn't stand a snowball's chance in hell. At best, IBM will be fined for violating any agreements with SCO, and the code in question will be removed from the kernel tree and will be easily replaced.

SCO producing evidence?

[marine_recon]

right. ill belive this when i see it. untill then i will regard this like everything else that sco has done, a vague answer to a direct question.

Are we going to learn our lessons, or what?

[vkg]

So, ok, the SCO case might be beginning to crumble. Might take a little longer, and who knows, with M$ looking for any shot it can take, there might be more problems in future.

So what are we going to do about it? Are there any measures the open source community can take to prevent contaimination of the open code base with improperly cleared code? Can we look at this as a subset of the more general "malware CVS committs?" problem? Should we have coders sign contracts stating that they have all appropriate rights to what they are about to commit so that we can offload liability to them?

Open Source Programmer insurance couldn't be far behind that....

Anyway, your thoughs please!

Re:Are we going to learn our lessons, or what?

[burnin1965]

My thoughts? It seems you are assuming there is a lesson to be learned here for the open source community, I suggest there will be no lesson to learn until we get some results from this case.

Furthermore, I believe that if there is a lesson to be learned then it is a lesson for all software developement models. Just because you cannot see the source code in a proprietary model does not mean they aren't using stolen code.

In fact, considering that most EULAs provide virtually no protection for the end user in the event that a proprietary vendor is using stolen code I would have to say that all end users should start demanding open source to ensure they are protected.

So, considering the vast volumes of open source code out there and there is only one court case, which appears to many including myself to be a facade, I'd say the mere fact that open source is open provides a significant deterrent to contributors to introduce stolen code, they will be caught.

burnin

Re:Are we going to learn our lessons, or what?

[6.023e23]

How does one go about critiquing an Open Source programmer's code as far as IP ownership goes? Or ANY programmer for that matter? You're taking it on their word that the code they submit was written by them and has no encumberances. The best you can do, IMO, would be to have signed affidavits from the programmers to such effect - proving the IP ownership would still be all but impossible. And how many programmers do you think would want to bother with signing an affidavit for every project to which they contribute? And how many projects are going to want to deal with the overhead? Of course you could require licensing/registration of all programmers... "Excuse me sir, but do you have a license to operate that there keyboard?" Methinks not.

SCO Bending the Truth

[tobechar]

Can't SCO get into trouble for lying about 6 million lines of code when the code fits into 6 pages?

There has to be some type of legal mechanism that would penalize them for this. Quite the oversight if you ask me.

Hatch

[Anonymous Coward]

I know it's kind of a common last name, but is the Hatch of the "Hatch, James & Dodge" firm representing SCO related to US Senator Orrin Hatch? It'd make sense, presuming absolute ignorance of copyright laws is a genetic anomoly.

So, in response to an order to produce evidence

[kfg]

what they have done is produce an abstract.

An abstract that merely refers to an unsubmitted index.

Ummmmmmmmmmmm, guys? That's not evidence.

The line listing is evidence.

You guys can make up any inhouse doofy theory of law you wish, but the fact of the matter is, and the court has made some attempt to explain this to you and placed you under compulsion, the claimant must produce the evidence that their claim is justified. The defendant need do nothing until such time because the defendant is only required to defend itself against the filed evidence.

Which part of this don't your high payed lawyers understand?

If you're lucky the judge will say, "Ummmmmmmm, nice try, you've got one more chance at getting it right. I presume counsel has had at least basic training in the rules of evidence?. . . Good. Please apply that knowledge in future."

If it were me I'd simply toss their asses out for noncompliance and a side order of legal arrogance.

KFG

Don't bet on a buyout. SCO will die alone

[bckrispi]

IBM, I believe has no interest in purchasing SCO as part of a settlement. There's no chance in hell that M$ will pick them up. They are still appealing the fact that they are a Monopoly based soley on the fact that they own Windows. The FTC/SEC would never approve a buyout that would make MS the owners of both Windows and Unix. That would be, like, a monopoly^2

SCaldera seems REALLY desperate...

[WCMI92]

60-ish pages... That can't point to all that much, and can't possibly answer all they were required to respond to.

SCaldera's PR machine has been in meltdown after all the negative events that have happened to them this week... Novell's release of their legal correspondance, Novell's indemnification, the OSDL/IBM/Intel (Intel openly joining on our side is a MAJOR event in itself), all VERY VERY bad news for them, and their stock started to tumble.

The only cash the company formerly but really known as Caldera is their stock price. If that crashes, so do they.

The SEC really needs to get involved, NOW. They are not listing the possible risks involved in losing this case in their SEC filings. They aren't listing the risk of Novell's claims regarding being owed 95% of the Microsoft/Sun and other "Darlgeld" being collected...

I think the next step is Novell files a suit against SCaldera, asking for summary judgement regarding money being owed to them...

Re:SCaldera seems REALLY desperate...

[stwrtpj]

The SEC really needs to get involved, NOW.

Sorry to pick on your specific post, this is more directed at the /. crowd in general.

Look everyone, get it through your heads right now: The SEC does not give a shit about this case. SCO is not big enough to warrant their time, SCO does not have enough shares out on the market to affect the market as a whole, and, like it or not people, SCO has not done anything wrong in the eyes of the SEC.

Now before I get flamed for stating that SCO has done nothing wrong, please reread what I just said: They have done nothing wrong in the eyes of the SEC. The SEC cares only about the big players of the market. Smaller companies like SCO do not show up on their radar unless they do something really horrendous. We can shout "pump and dump! pump and dump!" until we're blue in the face, but all the evidence to date is circumstantial.

Besides, we don't need the SEC. SCO's case has more holes in it than swiss cheese. IBM is going to stomp all over them and salt the earth over their remains. But don't expect any help from the government on this, folks, and frankly, we don't need it.

Re:SCaldera seems REALLY desperate...

[Anonymous Coward]

"The SEC cares only about the big players of the market."

Like Martha Stewart?

Re:SCaldera seems REALLY desperate...

[geschild]

You, Sir, may not be an idiot, but you are short-sighted. We (as in the Open Source crowd) may not need the SEC to win IBM's case, absolutely true. The thing is that 'we' don't want this to happen over and over again untill anyone ever hearing about Linux will go "That's about those lawsuits, isn't it?"

The only way that isn't going to happen is if the sorry sods that cause this (Daryl & co) get personally prosecuted for their misdeeds and preferably thrown in jail, even if it is only minimal security. If the only thing that happens is that SCO goes bankrupt, while the managers can get away with this money-making scheme, I think we are in for a world of pain. It would encourage every greedy bastard out there with even the slightest leverage to go to 'donors' (you fill in the blanks) and ask to fund their little pocket filling thingy while damaging OSS for the 'donors'.

I hope that at least the SEC knows that if it lets people get away with this in such a high publicity case they will have a flood on their hands. That may entice them to do something about it even if it is only small fries to them.

Besides, from the moral high ground, if this case is thrown out with prejudice, what have we won with SCO's demise when IBM's counter suit finally cut's off it's air supply? If there are any competent, product involved employees left in that company, they will be the ones taking the hit. That is, unless the SEC steps in and makes management feel the pain... (a man can dream, can't he? ;-)

Millions of lines

[Anonymous Coward]

(Hold off on the troll mods people, read and think first)

"Millions of lines on sixty pages, how silly"?

Now that's silly. Trying to make something look silly by using statistics, have you even seen the pages? The fact is, if SCO can prove it's case in sixty pages (or more if this is only part of it) in a court room with a presiding judge then it will win, end of story.

What we're going to see is SCO drill down to the most tiniest bit of code with their so called expert witnesses asking where the code came from and how it got there. We may even see some linux kernel developers subpoened? This could get ugly. Once you get to microscopic levels of looking at code and a few sleazy tricks (observational selection of code) then a judge might start to be convinced. You won't be able use the argument, "well that's just some code your honour in an ocean of code".

Re:Millions of lines

[schon]

Trying to make something look silly by using statistics

So why are you doing it?

have you even seen the pages?

No. Have you?

But you know what? I have seen the question: specifically the following:

Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating sytem and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

Now, how much stuff did Caldera put into the kernel willingly (you know, with a (c) sign on it, and everything.)? Enough to fit inside 60 legal pages? OK, maybe.

How about along with a detailed description of the copyrights, trade secrets, etc? Ehrm.. possible, but I think you're pushing the boundary.

Not to mention all of the 'millions of lines' that SCO claims was put into Linux without their knowledge.

And that's one part of twelve they had to answer in those 60 pages.

if SCO can prove it's case in sixty pages (or more if this is only part of it) in a court room with a presiding judge then it will win

And if CowboyNeal has hot sex with 60 Brazilian supermodels all at the same time, he'll be the coolest geek alive.

"As long as I'm wishing, I might as well ask for a Pony."

SCO isn't trying to "prove its' case" (nor does it need to) - it's response needs to show everything that they believe IBM did, when they did it, how they believe they did it, as well as proof of what's theirs.

end of story

Uhh, NO. You see, IBM still gets to disect and challenge everything that SCO puts forward.

SCO has basically admitted (in their response) that they did not comply with the order - the one whose deadline they agreed to even when given a chance on a later one.

I think any moron here can tell you that pissing off the judge isn't the way to try to win a court case.

Re:Millions of lines

[Dalcius]

With respect to your post, SCO's problem is two-fold:

1) They're up againt IBM. These guys have more elite, battle-hardened, fire-breathing legions of patent lawyers than SCO has employees. The Nazgul are coming for Darl and it won't be pretty.

2) SCO not only has to show line by line similarities, but WRT the IBM case, has to show that IBM put those lines in Linux. They must also prove that those lines didn't come from BSD, etc. Not a trivial task for even IBM's team.

Cheers

Re:Wait a minute

[WolfWithoutAClause]

But a document that exceeds 60 pages does exceed 50 pages.

beware!

[highwaytohell]

I, as most people here think that Sco have no legitimate claim against Linux et al. However, just because a lot of their responses are vague and skirt around the issue means nothing. In many public legal cases, alot of questions are answered with vague responses because they do not want to give the defense any extra info to help their case. When this is battled out in a court of law however all facts will come out. So in essence, Sco are playing this case with sheer stupidity, or they aren't showing their cards until the right time. I'm assuming its the latter.

Re:I could be off here...

[Anonymous Coward]

Well, let's assume for the moment that SCO's case had merit. No, really.

[darl dream world=on]If SCO only knew about IBM's breach of contract because of what it contributed to Linux (and thus was out in the open for SCO to discover), there is the possibility that IBM also broke the contract by giving code to others (SGI, for example), where SCO could not see the code. Thus, if they want to sue IBM for breach of contract, they don't want to be limited to the evidence that IBM put out in plain sight for anyone to see. They also want records from IBM to see if there's more evidence.[/darl dream world]

I think asking why SCO is doing some legal maneuver at this point, however, is like asking why a monkey throws shit. Even if a sensible reason exists, they probably aren't doing it for that reason.

Re:Don't bet on a buyout. SCO will die alone

[pclminion]

The FTC/SEC would never approve a buyout that would make MS the owners of both Windows and Unix. That would be, like, a monopoly^2

Would they never? Do we know that for sure?

What you've just said scares the crap out of me.

Re:Compression?

[rgmoore]

It's a valid response to the "which lines are violating", but that's not all they've been asked. If the lines are SysV lines that IBM is alleged to have disclosed, SCO has to say how SCO has a right to them, how they know IBM is responsible, who else might have seen the code, and what steps SCO took to make sure those others kept the code confidential. If they're lines in a Linux file, SCO has to say how and why SCO has a right to them and how they know that IBM is responsible for them being in Linux.

And those are just the questions about IBM's alleged copying. SCO is also supposed to give a full description of all of IBM's other alleged wrongdoings (remember the parts of the suit about unfair trade practices, interference with trade relations, and breach of contract?) and a full inventory of all of their claims of proprietary rights in Linux including the basis for those claims. It's hard to imagine squeezing all that into 60-70 pages.

Re:Go Fish

[El]

You can request proprietary information as evidence, but then you have to guarantee it's security. For example, Intel has a huge room full of AMD's files as a result of it's lawsuit against AMD, but must guarantee that Intel's chip designers won't look at the files, only Intel's legal department can have access. Securing this evidence costs big money.

Re:hmmm

[Penguinshit]

Just a small correction:

The dismissal is "with prejudice", which means the plaintiff is barred from filing another complaint for the same incident.

Now, this probably wouldn't stop SCO from trying to file for some "other incident".....

Re:Small fonts

[3dr]

Either small fonts, or a summary thus:
We find the following source code lines infringe:
L.1 - L.10,000,000

Read before embarrassing yourself

[rjamestaylor]

The purpose of drawing attention to the number of lines on the page wasn't to set a maximum number of lines code that SCO was claiming as infringing. It was to point out that in 60 pages you basically have 3600 lines. That's not even enough to tell a good story, much less explain $3 Billion worth of infringement claims. The preface to such a document would be 60 pages. In this case SCO claims millions of lines of code infringe. To be taken seriously, they would have to not only give the range of lines and files that infringe (which they already did) but explain (1) what is infringed upon, (2) how they conclude that there is infringement and (3) how it relates to IBM -- at a minimum! Remember, they already did the All these files, your Honor trick. Didn't work -- the Judge said 'with specificity'.

So, don't be like the other idiots who responded to this post and argue "ya but I could claim every atom infringes in just one line!" Sheesh.

Re:Read before embarrassing yourself

[Jason Earl]

I cannot imagine how any lawyer with the skill to pass the bar could read the interogatories that they were supposed to answer (and upon which rested their entire case), and then submit a 60 page document. The judge made it perfectly clear that for each alleged violation (whether it was copyright infringement, trade secret violation, contract violation, etc.) that SCO was to provide the date, time, precedence, other parties involved, the whole works.

And to top it all off they admit that they didn't answer all of the questions, and that they are short documents from some of their employees because of the holidays. Their firm is involved in a $3 billion dollar lawsuit and key witnesses can't be available because of Christmas? That's insane. I bet at least one of the IBM lawyers spends the next several days in the hospital from laughter induced injuries.

Re:hmmm

[Anonymous Coward]

"It is the burden of the plantiff to prove their allegations. Considering that Linux source is available, I don't see why SCaldera needs ANYTHING from IBM to "prove" their "millions of lines" allegations."

SCO seems to be making two related allegations. One is that there is use of SCO copyrighted code in Linux. The other is that IBM has contributed "Unix" code (which by SCO's reckoning, seems to be anything that ever ran on a unix box) to Linux in violation of their licensing agreements with SCO.

If essentially any AIX code is covered by the Unix license provisions, then any AIX-derived code contributed to Linux would be in violation of the license. But SCO would have no way of identifying it, since SCO doesn't have the AIX source. So SCO would need that source from IBM before they could say what the license violations are.

Now, I don't buy SCO's expansive interpretation of derived works as related to the licensing provisions. But I think it is logically possible that IBM could have violated the license without SCO being able to point to the offending code. What an appropriate course of action would be in that case for someone in SCO's position is hard for me to say.

That being said, I'm looking forward to the day when you can see Darl McBride on the sidewalk with a cup in his hand and a sign saying "Will sue for food."

So, two strategies

[budGibson]

Here's an interesting quote from Stowell

"We've not introduced copyright infringement as part of our case with IBM. We've tried to make it clear that it's a contract issue."

So, as Eben Moglen has been pointing out, the SCO case against IBM is about contracts. It really does not concern us.

SCO has a second strategy that it intends to use against end users. It will claim its copyrighted material is in Linux and simply demand payment. The proof of this particular claim is not being addressed in the suit with IBM. It will have to be addressed at the time of any new case SCO might bring.

The real issue for Linux is how it protects itself from this sort of predation. I know a guy who wrote a very successful software product that currently dominates its category. The minute his software started to make a splash, some 12 years ago, the first thing some company did was try to invalidate his patent, i.e., claim his idea did not belong to him. SCO has pulled a little the inverse strategy. The item (Linux) is claimed to be in the public domain, but SCO is claiming it is proprietary.

How to defend against that?

Worse than that

[einhverfr]

The other lines that SCO is referring to as infringing appear to be lines which use UNIX concepts or methods which IBM developed for AIX. IANAL, but I do not think that concepts can be afforded copyright protection under US law. Certainly expressions of those concepts can be.

Furthermore, I see nothing in the IBM contract which requires IBM to sign over their copyrights to derivative works to AT&T/Novell/SCO, even when unamended. Therefore a different interpretation of the relavent clauses in the contract could be that IBM has the right to make derivative works, provided that those portions are licensed under the UNIX license when they are sold as derivative works. If IBM still owns the copyright, however, then this would not necessarily prevent them from adapting their own additions for other operating systems, unless there is an as yet undisclosed noncompete clause, which, it seems to me, would be contrary to the whole point of the licensing contract...

Re:Stowell - No examples of copyrighted

[delcielo]

And yet, isn't the code the only proof of breach of contract?

Did I miss something in the implication of that statement?

Sco: "You broke our agreement."
IBM: "How?"
Sco: "You gave away code."
IBM: "Which code?"
Sco: "This isn't a matter of code! The issue is contracts!"

If I were a lawyer in a 3bn dollar suit...

[cbreaker]

.. I would have probably worked through the holidays to get this information out to the judge, it being a very important peice and all..

Hell, I worked on Christmas day for the extra couple hundred bucks overtime.

These guys are morons.

Unexpected threat

[Short Circuit]

Not to mention the kernel version in question. When was the infringing code introduced? Who introduced it? Has it ever been modified? Who claims current copyright over the file?

If there's any similarities, it's going to be a big mess. Kernel developers (not just Linus) are going to be called in to witness. CVS (and BitKeeper) records are going to be submitted as evidence, and life is going to be real miserable for some people.

This could be a serious problem in ways that I haven't seen anyone talk about. What happens if kernel developers get in hot water? Forget driving off potential customers, SCO could very easily stymie kernel development participation. If you're afraid you're going to get thrown in court for improving some bit of the kernel, are you likely to contribute at all?

In short, if this lawsuit is malicious towards Linux, then I'd be real worried for kernel developers.

Re:hmmm

[WCMI92]

" If you couldn't file a lawsuit until you had an airtight case against the defendant, not many lawsuits would be filed.

And boy, wouldn't THAT be terrible.
"

Tell me about it... This thing has damn near dragged on a YEAR and no one (including the accused) knows WHAT THEY HAVE BEEN ACCUSED OF DOING!

Discovery is supposed to be where evidence is exchanged. The charges and allegations are supposed to be known BEFORE discovery, else, how will the defense know WHAT to seek IN discovery?!

It seems to me that if a plantiff in a civil case won't be forthcoming with WHAT they are accusing someone of, and seem to be abusing the process to use the court to try to FIND something to support their vage accusation, it's an abuse of the process and the judge should not permit it.