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SCO Fails to Produce Evidence

Posted by ryuzaki0 on from the gee-i-wonder-why dept.

BlueSteel writes "For those of you that need that daily SCO fix, Groklaw has the declaration of Ryan E. Tibbitts of SCO, stating why they haven't produced any evidence... and that they need recent AIX and Dynix/ptx code from IBM before they can comply."

17 of 651 comments (clear)

  1. Since when... by mr_mischief · · Score: 5, Insightful

    is it the defendant's job to prosecute himself?

    1. Re:Since when... by kent_eh · · Score: 3, Insightful

      is it the defendant's job to prosecute himself?

      Ummm... Isn't it IBM who is being sued, and therefore is the defendant. SCO has to prove that an offence was committed, then it's up to IBM to defend themselves.

      SCO hasn't provided any evidence of infringement for IBM to defend themselves against.

      ...unless I mis-understood what you were saying, then just ignore me.

      --

      ---
      "I can't complain, but sometimes still do..." Joe Walsh
  2. SCO logic by cnb · · Score: 3, Insightful

    You stole from me but I can't tell you what it was until I search your house.

    - cnb

  3. Re:Summary by Daniel_Staal · · Score: 5, Insightful

    (Disclaimer: SCO is smoking crack. I believe none of what I am about to say...)

    Actually, SCO has a point. They claim ownership of the code in UNIX derivatives, of which AIX and the rest are examples. The fact that SCO has never seen or handled that code in any way is irrelevant. It is perfectly possible that IBM has infringed on SCO's property by copying code that IBM wrote for AIX/others into Linux. In which case, the only copy that SCO currently has access to is the Linux copy. After all SCO didn't write the code. IBM did. SCO just owns the rights.

    --
    'Sensible' is a curse word.
  4. Re:Shock horror! by red+floyd · · Score: 5, Insightful

    #include
    It's worse than that. In the 5 December hearing, the judge ruled that they can't ask for ANY of IBM's stuff until they provide answers to IBM.

    Tibbets' declaration seems to say, "give us the stuff you said we can't have, and then we'll give you the stuff you told us we had to provide".

    --
    The only reason we have the rights we have is that people just like us died to gain those rights. -- Cheerio Boy
  5. Fiduciary Duty by red+floyd · · Score: 5, Insightful

    Seems to me that RBC (and any other investors) have a decent lawsuit against SCO.

    With a $3Billion (pinky to mouth) lawsuit at stake, the friggin' directors couldn't give up their holiday vacation to provide info that the Court specifically ordered them to? Now, IANAL and IANACPA, but that would seem to be a breach of fiduciary duty!

    --
    The only reason we have the rights we have is that people just like us died to gain those rights. -- Cheerio Boy
  6. Re:I don't understand... by Jahf · · Score: 5, Insightful

    Exactly.

    The court should order SCO and IBM to both put their codes into blind escrow and then release the code from both to the legal team for each so that no funny business can go on =and= so that both sides have equal footing for making their cases. Same for any other participants who have been accused by SCO.

    May not be standard procedure, but this is a rather odd case. It would definitely help both companies show to their customers that they are playing fair.

    Additional code discovery could happen, but it should always be under view of the court.

    --
    It is more productive to voice thoughtful opinions (reply) than to judge (moderate) others.
  7. Obviously by ceswiedler · · Score: 4, Insightful

    This makes it clear that SCO is not talking about old code. They aren't claiming that IBM put ancient SysV code into Linux. They're claiming that they own code that IBM wrote and they never saw (and don't have a copy of).

    If they were saying that AT&T gave IBM the Unix source, and SCO inherited the Unix source, and IBM put the Unix source into Linux, then SCO would have a copy of the source of the infringement. If SCO doesn't have a copy, then that's a damn good sign that they never owned it.

    Clearly their interpretation is that anything IBM ever wrote related to UNIX is covered by their new UNIX copyright.

    Does George Lucas own the copyright to every Star Wars book ever published--say, the Timothy Zahn trilogy?

    1. Re:Obviously by navak · · Score: 3, Insightful
      This makes it clear that SCO is not talking about old code. They aren't claiming that IBM put ancient SysV code into Linux. They're claiming that they own code that IBM wrote and they never saw (and don't have a copy of).

      Not really. They are claiming their agreement with IBM prevents IBM to put their (IBM's) code into Linux. Two examples of such situtation actually occuring: if IBM signed an NDA, that would be true ; if IBM signed a non-compete agreement, that would be true as well.

      Clearly their interpretation is that anything IBM ever wrote related to UNIX is covered by their new UNIX copyright.

      Nope, their interpretation is that anything IBM ever wrote related to UNIX is covered by their contract, that their contract prevents IBM to release this code in Linux, and that Linux which integrate illegally copied code from IBM (BUT owned by IBM), should be stopped being distributed .

      Their bold step 2 (as in "2. ???") would probably be to ask the judge for allowing them to sell "licenses", allowing a user to still use legally the same Linux code which incorporate code from IBM which was illegally put into Linux. However this is likely to conflict with the GPL, so they need the judge to take a big magic decision there, as in "SCO has been harmed, so they can release code under the GPL ignoring such and such provision, but only once they have agreed with Linus about the exhaustive list of sections of code for which IBM illegally contributed code".

      Does George Lucas own the copyright to every Star Wars book ever published--say, the Timothy Zahn trilogy?

      That's exactly the point. Georges Lucas owns the trademarks associated with Star Wars, so even if Timothy Zahn owned 100% of the copyright of his works, it would be illegal for him to distribute it without an agreement with Georges Lucas.

      And it's the same problem can happen with OSS with respect to patents - you can be forbidden to distribute code which violate a patent you don't own.

  8. Not exactly true by Anonymous Coward · · Score: 5, Insightful

    Maybe in legal terms, but while SCO has technically complied to the order, it was legal for them to do so without producing much evidence. Which apparently they did. 60 pages surely doesn't cover the millions of lines of code they were talking about in the press. A confident litigator would not accompany his case with an excuse-note saying that they don't know what the hell's going on, but they have just a suspicion.

    So, while they have complied in legal terms, they have weakened their case in a significant order of magnitude. Not only that, but they have also weakened their case for any of their prosprective targets in their scoSource shakedown fiasco.

    Maybe inaccurate on a legal basis, but significant when looking at the big picture.

    I read Groklaw as well by the way.

  9. Re:I don't understand... by bratgrrl · · Score: 3, Insightful

    why? SCO needs to prove their case. They have offered zero proof. There is no cause for forcing IBM to release any code.

    --

    ---

    SCO is weenies
    Gator is Spyware
    Microsoft is thugs

  10. Re:Summary by k12linux · · Score: 4, Insightful
    The linux development goes on more or less as usual... less some time for Linus or others to take interviews from the press. IBM's Linux development is very likely moving at the same pace it always had.

    They may have taken steps to ensure that current programmers had never had any access to protected UNIX or AIX code, but I doubt it goes much further than that.

    Surveys show that adoption of Linux is being affected very little by this thing.

    IBM already has enough lawyers to darken the skys and a few million $ spent probably will be more than offset by the press and PR of it all when things are finally settled.

    As far as I can see only SCO is really being affected. They haven't produced anything new for some time so that's notthe issue... but according to their SEC filings, this thing is costing them millions. (Something like $9 million in the last quarter alone.)

  11. Re:Old version? by Nucleon500 · · Score: 3, Insightful

    So SCO has old AIX source from Project Monterey. Now I wonder: how did Monterey end, and is SCO entitled to have this code? This could get even more interesting if IBM finds some contract saying SCO should have destroyed it.

    --
    Litigious bastards
  12. Re:Summary by michael_cain · · Score: 5, Insightful
    This makes it pretty darned clear that IBM does in fact own their own "modifications and derivative works"

    I think SCO's case -- the real case, the one that has to be argued in court -- will acknowledge that IBM owns their own work, and that they can do anything they want in terms of embedding it in binary form in their own products, but that IBM requires SCO's permission to reveal the source code or even the methods used to third parties. That's a fairly fine distinction. There are lots of situations where you own something, but there are constraints on the uses that you can make of it. I think SCO will lose, mostly on grounds that (a) most of the SysV "trade secrets" aren't, (b) the previous owners of the contract didn't adequately protect their trade secret rights (so SCO can't successfully attempt to reclaim those rights), and (c) neither party who signed the contract in 1985 intended for it to apply this far into the future.

  13. Article is GROSSLY misleading by solman · · Score: 4, Insightful

    SCO has claimed (under penalty of perjury) that they DID produce answers to ALL of IBMs interogatories (questions) before the deadline.

    This includes an answer to IBM's request that they identify (with specificity) all rights that they claim to the Linux operating system.

    We haven't seen this answer (yet). IBM will presumably claim that SCO has NOT answered its questions on January 23rd. But the title of the article is false. SCO _HAS_ produced evidence. The only question is whether or not that evidence is meaningful.

  14. WTF? by C_Kode · · Score: 4, Insightful

    14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

    15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

    They said they HAVE the proof and you needed to sign an NDA to see it. Yet no all the sudden they don't have all the information required to FIND the evidence they need. So, all these claims are just speculation now? Well, if I can sue for 3 billion off speculation, someones poor multi-billion dollar company is in alot of trouble. Hmmm, I wonder how the judge will see this. What they claim to have had, and what they have are two different things. They have nothing and just admited to it.

  15. There is little if any code ... by j_w_d · · Score: 3, Insightful

    "discovered" so far. To judge from SCO's notice of [non]compliance, they apparently failed extravagantly to meet the court's order. They should be thinking about how to convinve the court that their suit isn't frivolous, and about convincing IBM to settle (e.g. by 'em out). Evidently, they aren't anxious, or else have neurological checksum problems in the board room. You would think that if they DID have actual evidence, that they would have shown IBM convincing evidence and asked for an offer from IBM that would make it right. As it is, SCO's name may go down in history right next to George Armstrong Custer under famous massacres due to arrogance and over confidence.

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    ------ The only greater hazard to your liberty than n politicians is n+1 politicians.