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SCO Fails to Produce Evidence
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."
is it the defendant's job to prosecute himself?
(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.
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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
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
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.
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?
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.
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.)
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.
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. 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.