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

Small fonts

[mkiwi]

IBM must be using really small fonts to make it hard for SCO to find evidence. It's always the fine print that gets people, though. ;)

Re:Small fonts

[dbialac]

Nah. They compressed the contents with tar/bzip2 and then printed that out.

Dave Bialac

Re:Small fonts

[z00z]

Small fonts are readable via a magnifying glass, so that won't be an issue. Now if IBM were using MS Symbol fonts, then SCO would be in real trouble!

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

Re:Small fonts

[c1ay]

Does anyone know where I can get a copy of this specificity font the judge told them to use? If it fits everything that they were ordered to produce on 60 pages it's gotta be better than any zip program out there.

supplement?

[wankledot]

So where's the 60 page PDF so we can get right on tearing it apart line by line and laughing?

Re:supplement?

[The Welcome Rain]

Sadly, that was filed privately. We may not get to see it until the upcoming hearing.

Re:supplement?

[Deusy]

Sadly, that was filed privately. We may not get to see it until the upcoming hearing.

Sadly!? JOY!!! There's still time for me to sell short! And I thought I'd missed the boat! Ecstacy brother, pure ecstacy!

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

[cyxs]

But they haven't yet complied with the order. They only provided part of the answers that IBM Requested and said that once they get IBM's code from AIX that they will be able to answer the reset of the questions.

And if I remeber the judges order was that it wouldn't allow for SCO Motion to Compel till IBMs motions were carried out. Also wouldn't the judge have to give fair amount of time after IBM gets the information for them to go over it and then provide the information that SCO requested. Because IBM has been saying that without knowing what SCO is sueing them over they couldn't provide the data that SCO wanted.

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

[DarkAce911]

SCO got smacked around by the Judge in Dec and she is really going to be pissed on the 23rd with no discovery done. Novell has a letter that said SCO's lawyers were off over the Holidays. 60 of legalese is something that can be produced of lunch at most places. Remember, lawyers bill by the hour and you can never have too many docs. Someone on Groklaw.net said that each page must be worth 59 million dollars if SCO's wants 3 billion in damages.

I hope the 23rd is an open hearing with a transcript, its going to be real funny.

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

[Jason Earl]

Yes, but SCO was ordered to do more than specify lines of code. They were ordered to provide a huge pile of information for each and every alleged infraction. We may not have access to SCO's response, but we do have access to the questions that they were supposed to answer. Take a look at interrogatories 12 and 13, for example:

INTERROGATORY NO. 12: 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.

INTERROGATORY NO. 13: For each line of code and other materials identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights; and (b) whether plaintiff has ever distributed code or other material or otherwise made it available to the public, as part of a Linux distribution or otherwise, and, if so, the circumstances under which it was distributed or otherwise made available, including but not limited to the product(s) in which it was distributed or made available, and the terms under which is was distributed or made available (such as under the GPL or any other license).

That is a lot of information to provide for "each line of code." I would bet that in many cases 60 pages wouldn't even be enough to correctly document one infraction. And there are 11 other interrogatories that deal with entirely different aspects of the case. Each of these interrogatories likewise required huge amounts of information to correctly answer their demands. Handing over 60 pages is like submitting a Hello World program written in bash when asked to code an ERP program. It's so ridiculous that you almost have to invent a new word to correctly describe it.

The funniest part of the whole thing is that SCO apparently has paid their lawyers millions of dollars for their supposed "legal advice."

Re:Files and line numbers may be sufficient

[vladkrupin]

Therefore, you can say nothing at all about it, other than the fact that they span less than 3600 different files.

Yeah, that's where specificity comes into play. I can say that you are infringing on my code in 3600 of your files, but that won't be very specfic. If you are showing line ranges, that's fine, but you still have to describe what exactly is wrong with those lines. That description is what should make the bulk of the document, not the line numbers themselves.

The Chewbacca Defense

[Anonymous Coward]

"Ladies and Gentlemen of this supposed jury, SCO's accusers would certainly want you to believe my client doesn't own the rights to Unix, and they make a good case. Hell, I almost felt pity myself. But Ladies and Gentlemen of this supposed jury, I have one final thing I want you to consider.

Ladies and Gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk who carried a gun and ran from the mob. But Chewbacca lives on the planet Endor. Now think about it. That does not make sense. Why would a Wookiee, an eight-foot-tall Wookiee, want to live on Endor with a bunch of two-foot-tall Ewoks. That does not make sense.

But more important, you have to ask yourself what does this have to do with this case. Nothing. Ladies and Gentlemen, it has nothing to do with this case. It does not make sense. Look at me. I'm a lawyer defending a major Unix company and I'm talkin' about Chewbacca. Does that make sense? Ladies and Gentlemen I am not making any sense. None of this makes sense.

And so you have to remember when you're in that jury room deliberating and conjugating the Emancipation Proclamation, does it make sense? No. Ladies and Gentlemen of this supposed jury it does not make sense. If Chewbacca lives on Endor you must acquit.

I know SCO seems guilty. But ladies and gentlemen this is Chewbacca. Now think about that for one minute. That does not make sense. Why am I talking about Chewbacca when a company is on the line? Why? I'll tell you why. I don't know. It doesn't make sense. If Chewbacca does not make sense you must acquit. Here look at the monkey , look at the silly monkey.

The defense rests."

Compression?

[BananaJr6000]

With a compression algorithm like that (millions of lines to 60+ pages)

SCO's IP license would be worth $699 ...but since that compression ratio is impossible (except in Utah) SCO is pretty much done.

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:Compression?

[hayds]

Who said they compressed it?? Maybe theyre trying to fool everyone by just using 60 REALLY big bits of paper.

I can imagine them walking into court with 60 A1 pages printed off a plotter or something. :)

Wait a minute

[helix400]

It says the supplement exceeds 60 pages. So we don't know the actual size.

On a side note, any legal reason why they would say "exceed 60 pages". Why not 50 pages, or 70 pages, or whatever?

Re:Wait a minute

[Bingo Foo]

why they would say "exceed 60 pages". Why not 50 pages

Because 50 does not exceed 60.

Millions of lines in 60 pages

[bluephone]

They use a Bullshit Compressor. Politicians have been using it for years. Thta's hwo you get 10 pounds of manure in a 5 pound bag.

Re:Millions of lines in 60 pages

[bartwol]

You've got it reversed. Politicians use a Bullshit Expander. It gives you 10 pounds of bullshit out of 5 pounds of substance. It is because SCO previously used the Bullshit Expander that they now find themselves shrunken back to size.

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.

Clear violation.

[RyanFenton]

Their document is clearly integrating Adobe Acrobat technology into their software without permission. But don't tell them... wait for the damages to pile up first. It wouldn't be fair for Adobe to have to show any damages before they can claim copious ammounts of money.

Ryan Fenton

Re:Clear violation.

[javatips]

Not at all!

I heard from very very very reliable sources that SCO has negociated an agreement with Adobe. The agreement stipulate that Adobe will include stealth technology to prevent people from copying Unix code using Photoshop!

getting to the point

[Marsala]

Millions of lines on sixty pages? How silly.

Yeah.

Well.

You know, you don't really even need 60 pages to say, "We ownz0r all of it. SCO > *. Pwnt."

More info and analysis on GROKLAW

[hcg50a]

Check this out.

Re:More info and analysis on GROKLAW

[pclminion]

For a second there I thought those lines in the Dark Tongue were spoken by Darl himself...

Too bad it's just your sig.

Re:Question

[The Welcome Rain]

It means that a party's attorney is not licensed to practice law in the state in which the suit is filed, but is so licensed in another state, and the party would like this attorney to help represent them. I believe at least one attorney for each party must be licensed in that state, but others need not be.

Sounds like they won't meet the Judge's threshold

[Teahouse]

The judge was very specific in December. She demanded forthright and overwhelming examples of the offending code. She said she would not allow the case to move forward unless it was submitted. She further stated she would not compel IBM the task of providing all development and and beta data unless it was required to answer SCO's disclosure. 60 pages is not a sufficient brief to even outline the supposed infractions SCO is throwing about, let alone actual instances of IP theft! A divorce case can easily have a 200 page evidentiary outline! Unless there is more we aren't hearing about, there is a good chance this will not meet the court's demands and the case will be dismissed.

"...all non-priveleged information..."

[numbski]

Translation:

The general public still won't get to see the evidence.

By putting all 'priveleged' information in an addendum....we won't get to see the infringing code. :\

Go fig. Put up or shut up my arse.

FYI, the full list of Interrogatories

[ThisIsAnExampleAccou]

FYI, here is a list of the Interrogatories that SCO was supposed to answer. From the looks of it, they did not answer number 10 or 11.

INTERROGATORY NO. 1: seeks specific identification of all alleged trade secrets and confidential or proprietary information that SCO alleges IBM misappropriated or misused. This information is requested by product, file and line of code.

INTERROGATORY NO. 2: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 2 seeks further identification of: (a) all persons who have or had rights to the same; (b) the nature and sources of SCO's rights in the same; and (c) efforts to maintain secrecy or confidentiality of the same.

INTERROGATORY NO. 3: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 3 seeks the identity of all persons to whom the same was disclosed and the details of such disclosure. In particular, this interrogatory seeks: (a) the date of disclosure; (b) the terms of disclosure; (c) the documents relating to disclosure; (d) all places where the trade secret and/or confidential or proprietary information may be found or accessed.

INTERROGATORY NO. 4: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 4 seeks information regarding each instance in which plaintiff alleges that IBM misappropriated or misused the same. In particular, this interrogatory seeks (a) the date of the alleged misuse or misappropriation; (b) the persons involved; c) the manner of misuse or misappropriation; and (d) the location of any method or code in any IBM product, Linux, open source or the public domain.

INTERROGATORY NO. 5: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 5 seeks identification of (a) all agreements relating thereto, and (b) all copyrights and patents relating thereto, including but not limited to the owners, licensors, licensees, assignors or assignees thereof.

INTERROGATORY NO. 6: For each alleged trade secret and any confidential or proprietary information identified in response to Interrogatory No. 1, Interrogatory No. 6 seeks (a) the origin of the code or method, including where, when and by whom created; (b) all products in which the code or method is included or upon which it is based (in whole or in part).

INTERROGATORY NO. 7: seeks a description of each instance in which IBM allegedly engaged in unfair competition, including but not limited to: (a) the dates of such conduct, (b) the persons involved, and (c) the specific manner of unfair competition.

INTERROGATORY NO. 8: seeks the identification of all agreements with which IBM allegedly interfered, including but not limited to: (a) the date of interference, (b) the persons involved in the interference, (c) the manner of interference, (d) the actions (if any) IBM encouraged licensees to take, (e) the actions, if any, such licensees took as a result of IBM's inducement/encouragement, (f) the trade secret or proprietary information (if any) involved in the alleged interference.

INTERROGATORY NO. 9: seeks identification of all agreements that IBM has allegedly breached, including but not limited to: (a) the date of breach, (b) the persons involved, and (c) the specific manner of breach.

INTERROGATORY NO. 10: Separately, for each of plaintiff's claims for relief, please identify all persons (including but not limited to present or former employees of plaintiff or plaintiff's predecessors in interest) with knowledge relating to plaintiff's claims and contentions and the general nature of, or the categories of, facts known by each person.

INTERROGATORY No.11: Please identify all products ever marketed, sold or distributed by plaintiff or plaintiff's pred

Re:FYI, the full list of Interrogatories

[Anonymous Coward]

Dude! If you're going to karma-whore, at least mention the source!

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.

Will be waiting.

[Anonymous Coward]

SCO has shown that when they say they have done something, the chances are good they haven't. I can't imagine they'd refuse the court's direct order in this case-- especially since the court case is on hold until they cough up. But I'll still be waiting to see whether

• IBM is satisfied by SCO's response.
  
• IBM says "you haven't answered our questions at all".
  
• IBM is dancing in the aisles becuase SCO's evidence amounts to 60 pages of files taken from BSD and header files ruled as uncopyrightable in the BSD case.
  

Re:60 pages is not a million, but it's quite a chu

[yeremein]

Keep in mind that the 60+ pages comprises SCO's entire response. There were ten interrogetories SCO was compelled to answer. "List all the infringing code" was just one of those.

Besides, SCO hasn't shown anything credible in several tries so far. I'm betting on more of the same.

Even still, there are two points of fallback:

1. Novell contests ownership of SVR5 copyrights--SCO needs to beat Novell in court before it can succeed against an end user in a copyright infringement claim
2. The BSDi settlement questions whether SVR5 can even be protected by copyright in the first place

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

SCO complied, sorta

[UnknowingFool]

According to SCO they complied, but if you read their notice, they also note an exception.

The only exception to such production is the files of certain officers and directors for whom SCO could not obtain the requested materials during the holidays with sufficient time to review the documents.

This means that they couldn't get all the documents because people were on vacation. Let's see: they got the court order December 5. I wonder how many developers were given a mandatory 6 month vacation on a deserted island to start December 6th?

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

Most likely 61-65 pages.....

[reality-bytes]

It's most likely that it consists of 61-65 pages as more that 65 pages would probably be referred to as "Almost 70 pages". ;)

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...

[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? ;-)

Re:SCaldera seems REALLY desperate...

[WCMI92]

Circumstantial evidence it is, and it may not be enough to get a conviction of Darl and Co, but it IS enough to show probable cause to launch an investigation...

IF SCaldera and it's executives from Darl on down are doing what we THINK they are doing (and so far evidence does not contradict it) they are guilty of some very serious crimes. If the SEC permits companies to get away with these things, then they prove that NOTHING was learned from Enron.

SCO at the very least is misleading investors. It's SEC filings do NOT include ANY risk statements involving Redhat and IBM's counterclaims, and nothing concerning Novell's allegations involving their license agreement.

Novell could go to court at any time and possibly get SCaldera's assets seized to pay them the 95% they were owed from the Darlgeld Microsoft and Sun paid!

Not to mention, their current stock price is SOLEY the result of what is likely a frivilous lawsuit, and insiders have been excercising PENNY stock options and making TENS AND HUNDREDS OF THOUSANDS on the backs of people who BUY these shares.

The fact that so many execs have options for SCO stock DRASTICALLY below the current price suggests to me that this whole scheme was premeditated...

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".

No problem.

[ChangeOnInstall]

Assuming you can fit 60 lines of code on a 8.5"x11" sheet with in a 10 point font, you can fit 3600 lines of code on 60 pages.

You can thus fit 3600x4=14,400 lines of code on 60 pages in a 5pt font.

In a 2.5pt font, you can fit 14,400x4 lines of code on 60 pages, or 57,600 lines.

1.25pt: 230,400

0.675pt: 921,600

So "more than 60 pages" is more than adequate.

No ruling in BSD case

[ebcdic]

There was no ruling in the BSD case. It was settled out of court. You might take the judges comment's as suggesting what another judge might decide, but they do not constitute a legal precedent.

Re:No ruling in BSD case

[dmaxwell]

Assuming that SCO own the copyrights to SysV (and not Novell) then they are AT&Ts successors in interest to the code. AT&T settled a dispute involving that code base. That settlement will travel with the code regardless of who owns it. The parent poster is correct, it isn't a legal precedent in general. It sure as hell is one as far as Novell and (maybe) SCO is concerned.

Yes.

[mcc]

Yes.

SCO has made no secret in recent months that it hired high-profile attorney David Boies to spearhead its case against IBM, but the company's legal representation in Utah courts is also noteworthy. The company retained Brent O. Hatch and Mark F. James of the law firm Hatch, James & Dodge. Hatch is the son of Sen. Orrin Hatch, R-Utah, a representative for SCO confirmed Monday.

Re:Question

[Anonymous Coward]

RTFM. You come on to this blatently pro Latin site, don't know shit about Latin and expect not to get modded down after posting such a crass newbie question? The big question is: will this baby run Latin? Or, imagine a forum of these. Or, in Ancient Rome the orgy finds you. etc...

I could be off here...

[shaitand]

But I was under the impression that SCO was required to put ALL it's cards on the table AND THEN the judge would talk about whether or not IBM hadn't presented all the requested information.

SCO's statement makes it clear they are saying this is a sample only and they will cough up a little more after IBM gives what they want. Isn't this liable to piss off a judge who explicitly ordered they present everything?

Re:I could be off here...

[MuParadigm]

Yes, this is liable to piss of the judge, especially considering that the judge has shown a small amount of pissed offedness with SCO already.

I refer you to the following quotes from the transcript of the December 5, 2003 discovery hearing:

THE COURT: ... the burden is on the plaintiff to prove the existence of the trade secrets assuming that that's part of it, all right, and that it is appropriate to postpone discovery in those circumstances until such time as the plaintiffs have acknowledged what the trade secrets may be, and otherwise this Court cannot determine, as the other party cannot determine, what is relevant as to future discovery.

MR. MCBRIDE: Thank you. Yes. I will, Your Honor.

THE COURT: None of us know.

Or, how about this one:

MR. MCBRIDE: Your Honor, ... we gave them the source code of Unixwork so it's in there.

THE COURT: Didn't you give it to them in hundreds of thousands of pieces of
paper, though, without specifically identifying it?

Re:hmmm

[WCMI92]

" Yeah - isn't it interesting that SCO seems to basically be saying that "we're waiting on the defendant to prove our case for us"? I hope McBride and Co. have their graves dug already"

Which they cannot do. You can't file a lawsuit to use it as a fishing expedition. 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.

The court set the deadline and put SCaldera's discovery on hold UNTIL they showed IBM exactly what they are accused of doing. Seems to me they have not done so. The next hearing will be very interesting. At the very least, Darl and his other brother Darl will have a VERY pissed off judge on their hands...

If they piss the judge off enough, they might have their case thrown out. The judge could even dismiss "with prejustice" meaning the same charges could not be made again. A dismissal would not affect IBM's countersuit.

The judge also could allow the case to proceed, but bar SCO from introducing any additional evidence other than what they just provided... Discovery deadlines are just that... A deadline. The party so ordered MUST turn over what they are ordered to, and then some, if they want to be certain to get that evidence into the court during trial...

If SCO had a case, they should have turned over exactly what they were ORDERED to turn over. But then, as most of us suspect, they DONT have a case, but want to use the spectre of one to get rich off a "pump n dump" while receiving revenue from Microsoft to encourage the FUD machine...

QOTD:Can anyone explain this huge trade yesterday?

[kko]

Check the post near the middle of the comments by jbardhan:

...but why would somebody have moved >100k shares yesterday afternoon around 4pm? Check here. That's way out of line with their typical volume...

Beautiful.

IBM's major infraction

[cheezfreek]

How much of those 60 pages do you suppose look like this:
i++;

Novell going for a quick checkmate?

[fishbonez]

I don't think it's an accident that Novell released all it's correspondence with SCO this week. Novell is giving IBM a lot of ammunition in it's legal battle with SCO. In those correspondence, Novell is clearly trying to exercise its rights under its agreement with SCO and consistently sites the relevant passages in those agreements to back up its requests. SCO just dismisses every Novell request out of hand without reference to anything.

Of particular interest is Novell's assertion that derivative works belong to IBM, SGI, etc. This claim of ownership of derivative works is SCO's core argument. Without ownership of derivative works, SCO only has rights to actual code and not the methods, processes, etc.

I suspect Novell is hoping that IBM may be able to short circuit the entire process. If IBM can show that SCO is violating the agreement with Novell and that SCO's ownership is in dispute, SCO may not even have standing with the court to bring the lawsuit. In other words, SCO's suit could be dismissed until it has established clear ownership of the copyrights it claims IBM is violating.

SCO would then have to file a lawsuit against Novell. In the interim, SCO's stock price would freefall to nothing and it would not have the money to continue its fight. Novell could probably reclaim all the UNIX rights it supposedly sold if SCO is forced out of business.

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.

Answers

[jdhutchins]

If you haven't read the answers (probably b/c they're not publicly available), here's a sneak preview:

1) Well, since this is our first shot at this, how about `find /usr/src/linux`. Don't ask us what those funny .h or .c files are, though.

2) Darl McBride. I OWNZER SCO. I OWNZER LUNUX (however it's spelled). I OWNZER YOU!!! hahaha. Hmm, well, we're suing over this question, aren't we?

3) We're very concerned with keeping our private stuff private, so we shred all our documents. This includes financial documents. Whoops, my PR guy just said that that was a bad thing to say, kinda like shooting myself in the foot. But wait! I can't shoot myself in the foot, I need it to count to 13!

4) IBM, you suxor. You gave the code to those linux freaks! A date range would be 1990-2003. It's somewhere in there. We don't know any IBM people, so we can't give names. IBM people scare me, so we can't ask them anything. Sorry

5) All agreements? Your great-grandaddy's momma's fat thrid sister, twice removed, once gave my great-great-great-stepgrandmama's FIRST brother, once removed, some land. That counts, doesn't it? If that doesn't work, well, you gave us some money, so we can do whatever we want, right?

6) This is getting tough. The typing is slowing down, because I need both hands to count this high. But the origin of this code was ME, Mr. Darl McBride. Some Linus guy helped me a little too, but he's kinda insignificant. Copyrights and patents? Well, I put a little c with circle thing in my file, does that count?

7) IBM engaged in unfair competition? Just look at them. Their stuff sells more per day that our stuff ever has! Because we KNOW we've got the best stuff, it must be unfair. And don't pull this "life ain't fair" stuff anymore.

8-9 I dunno, I'm getting tired of this stuff.

10) Hmm, wait a minute. Let me get a local Utah area phone book. I need names, so let me get some fast. At least one of them is bound to be right, right? I'll also put down some names, like Linus Trovolwhat's his name, CmdrTaco (he runs a site of big bad nerds), and that growklaw chick too. They're mean people.

11) Hmm, tough one there. We've made lots of products, but telling you which ones have sold is a tough call. Our sales records were in those documents that were shredded, but I don't ever remember selling anything.

12) A11 of it is OWNZER, PWNED, and those other geek terms (I'm not quite sure how they are spelled, but geeks seem to be bad spellers. What has happened to our youth?) by us. I tried `find /usr/src/linux -exec rm {}\;` becuase one of those big bad geeks out there told me it would automatically find anything I could use for evidence. But it seemed to work kinda like my paper shredder.

13) Yes, you've infrindged my constitutional right to make a profit. Yes, you distributed it. And boy, my feet are getting cold. It's hard to count to 13 without taking a sock of, you know?

-Best wishes,
-Darl McBride

lawyer talk

[mslinux]

circumlocution - The use of unnecessarily wordy and indirect language. Evasion in speech. Laywer talk.

An example of how to go about confusing a judge or jury while telling the truth in a circular way:

Lawyer for IBM: Did you or did you not place SCO's proprietary code into the Linux kernel for the very purpose of bringing these charges?

Lawyer for SCO: We have never been engaged in a state of non-development with the Linux kernel source code. We have never not distributed it, we have never not contributed code to it and we have most certainly never not used our contributions to bring false charges. Need I say more?

It's SCO that's using Small fonts, not IBM

[McSpew]

The sixty pages referred to in the original story are pages that SCO has promised to deliver to IBM when they get around to it.

Now, of course, the small font claim is something we shouldn't dismiss too lightly. SCO did originally try to meet its discovery obligations by providing IBM with something like 100 million lines of code printed out on paper.

Stowell - No examples of copyrighted

[Anonymous Coward]

Monday's response included no examples of copyright violations, Stowell said. "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." From http://www.infoworld.com/article/04/01/13/HNscosho wscode_1.html

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!"

SCO's code in the kernel?

[chris_sawtell]

find $d -type f -exec grep -i ' sco ' {} \; | tee /dev/tty | wc -l

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."

Re:hmmm

[finkployd]

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.

Finkployd

well this answers everything!

[LuxFX]

Well now we know what SCO is up to. They are claiming copyright on all the space characters in Linux code! That's how they can fit it all in 60 pages.

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:hmmm

[Zeinfeld]

You are obviously not a lawyer and/or you have no idea how the law works in practice. Discovery deadlines were meant to be broken.

But in this particular case the 'discovery' is not really discovery as such but the defendant forcing the plaintif to actually reveal their true statement of claim in a form that makes it possible to actually mount a defense.

Courts tend to consider that type of issue rather more skeptically. You can dick arround making the other side perform makework for only so long before the court tells you to stop with the games and to start behaving in a manner that will allow the case to be set down for trial.

What SCO is probably trying to do

[Skapare]

SCO believes that their license with IBM entitles SCO to ownership of all code IBM develops and puts in products licensed to IBM by SCO. SCO believes some of that code IBM has put in AIX and/or Dynix/ptx was also put in Linux. So SCO's claim is "We don't know what code is ours, but we know IBM put it in Linux". Of course that can't account for any code IBM took from BSD and put in AIX and/or Dynix/ptx (which is in compliance with the BSD license), which SCO cannot possibly own, and which could also be in Linux, and might no longer even be in BSD. It also cannot account for any code IBM acquired from any other parties who may have approved putting it in AIX, Dynix/pts, or Linux.

Double space legalease

[EmbeddedJanitor]

Most likely it will be in double space 12pt or so, and most likely rewritten in legalease. Example:

C: int i;

Translated: "We sumbit that there is an integer stoage of variable value designated the identifying symbol of 'i'. "

Yup, I can see how one or two C snippets could easily run 60 pages.

Well the SEC is supposed to care about this stuff

[RedLaggedTeut]

The SEC is supposed to care about this stuff even if its small companies. I would guess that a lot of small companies are among the offenders of SEC rules.

If you really wanted to you could probably force a court ruling by buying some SCO stock and then suing them when the stock drops if you really believe that SCO violated SEC rules in its SEC filings. But I guess as long as you don't blatantly lie, a court might find that your SEC filings were ok.

Re:hmmm

[The Fink]

They can simply go around and demand liscense fees from anybody using Linux, without ever telling anyone exactly what it is they're paying for, and the Linux community would be more or less helpless to remove the offending code short of re-writing anything in the kernal whose origin can't be totally nailed down.

In Australia, at least, that would land SCOG in very, very hot water (being Australian and by extension, not from the US, I don't know what the law provides for there). Claiming ownership -- and license fees -- on something you don't provably own is misrepresentation, and will see you up against the various state Offices of Fair Trading and/or the Australian Consumer and Competition Commission quicker than you can say "pay me." You can ask for donations and/or provide a service in return for payment, but you can't go around claiming rights to stuff for no material or immaterial benefit of any kind, much less threatening (veiled or otherwise) legal action if payment isn't forthcoming.

I'm still waiting for SCO Australia to try it on here. They're welcome to use me as a guinea-pig; I'd be only too happy to send a copy of all correspondence to the ACCC.