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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."
For those of you that need that daily SCO fix
Daily? Has
Trolling is a art,
(1) Hey, it was the holidays. This lawsuit isn't important enough to bother our directors with over Christmas.
(2) Well, we're pretty sure that they're infringing somehow, but despite the fact that we claim to own this stuff, doggone if we can't find a current version of it. Anyway, once IBM spells it all out for us I'm sure we'll come up with something that looks like that other thing. Probably.
Another FA you can avoid R'ing (link found at Groklaw): the Motley Fool looks at the 'shakedown' of Linux providers: "with the entire computing world putting its money behind Linux, it appears that, for SCO, the apocalypse is now."
When we remember we are all mad, the mysteries disappear and life stands explained.
Mark Twain
Well, tip me over with a feather! I never would have seen this coming!
Oh no! SCO couldn't produce any evidence! Maybe that's because THERE IS NO EVIDENCE!
Karma: It's all a bunch of tree-huggin' hippy crap!
is it the defendant's job to prosecute himself?
SCO not coming up with proof is not a news story... it's something that's been going on for quite a while.
News just in - the Emperor has no clothes, and - eww - that's disgusting!
If anyone believed SCO, I hope they feel silly right now...
Monkeys failed to fly out of my butt.
I'm not convinced they're unrelated.
If this box appears underfilled it is because the contents may have settled.
---- The above post was generated by the Turing Institute. Maybe.
How did SCO get a copy of "IBM AIX source code, an old version labeled MERCED/9922A_43NIA"?
I doubt that IBM would have just turned over source to AIX as part of the trial, much less an old version, so how did they get it?
-twb
SCO Attorney: "Your honor, we are unable to provide evidence for our claims. We request that IBM prove our case for us."
Judge to commence laughing in 5..4..3..
to see what IBM's Legion Of Firebreathing Laywers have to say about this.
[sits back and grabs some popcorn] This should be good...
Things you think are in the Constitution, but are not.
"You want the evidence? You can't HANDLE the evidence!"
...
D'oh!, I demand a refund of my $699.
for the last time people, I am "frodo from middle eaRTH", not "middle eaST".
...my name's not Briny Tidbitts. With a name like that, you might as well work at SCO.
TallGreen CMS hosting
Wasn't there a scene in The Simpsons where Lionel Hutts doesn't have any evidence for his lawsuit and he asks the person he's suing if he can help?
Was it the one where he sued over Itchy & Scratchy?
He stammers out something like "Well, um, we don't have a copy of it... we were kind of hoping that you did."
You are in error. No-one is screaming. Thank you for your cooperation.
And as should be expected by now, SCOX stock rose on the news today.
Your pizza just the way you ought to have it.
You stole from me but I can't tell you what it was until I search your house.
- cnb
SCO: you infringed on our code, we're suing
IBM: prove it
SCO: no, you prove it!
wtf? How did they get this far? I rarely root for the 800 lb gorilla, but it appears the strategy for SCO is just to tie this up in litigation as long as possible.
There is a different issue here... this has nothing to do with copyright infringement anymore, it is political maneuvering of consumer views. But, I'm preaching to the choir at this point.
They are taking IBM to court - so that they can get the most recent versions of AIX to compare to Linux. Huh? Don't you need evidence before you have a case? From the stuff on groklaw it sounds as if sco simply presumes that there is infringing code, but has no real proof. SCO should go to jail for wasting the american peoples legal system's time.
Maybe IBM can give them a list of files which infringe ;)
In Soviet America the banks rob you!
Lawyers arrive in court, head counsel for IBM opens briefcase, pulls out megaphone, points it at Boies, and says in Eric Cartman's voice "Would you like, to suck my balls, Mr. Boies?"
Expect a significant selling pressure on the SCO stock after this publication.
Your pizza just the way you ought to have it.
Here it is;
Declaration of Ryan E. Tibbitts
Wednesday, January 14 2004 @ 09:42 PM EST
Here is the Declaration of Ryan E. Tibbitts, which was attached to SCO's Notice of Compliance. It's his "Santa ate my files" document. Note that he says that he began gathering the outside directors' files only after December 12, so is Santa to blame? He writes:
"After this Court's Order on December 12, 2003, I began to coordinate the gathering of responsive information from SCO's outside directors."
The hearing was on December 5, not December 12. SCO knew from the 5th that they needed to be finished by January 12, but made no efforts until the order was signed on the 12th?
IBM served its First Set of Interrogatories and First Request for Production of Documents on SCO on June 13, 2003. Beginning in August, IBM began notifying SCO by email and telephone that their answers were deficient and requested further information, which led to an impasse and IBM filing its 1st Motion to Compel Discovery early in October and a 2nd Motion to Compel early in November.
And SCO didn't begin to coordinate the gathering of information from SCO's outside directors until December 12 and so it missed the 30-day deadline because of the Christmas holiday? I am thinking the dog ate my interrogatories might be more convincing than this.
That isn't the worst. The worst, according to my nonprogrammer's eyes, is that SCO doesn't seem to identify with specificity much of anything. Forget spectral analysis and MIT mathematicians. They looked on the internet at Linux and compared it to the versions of AIX and Dynix they had lying around and infer there could be some problems. However, they can't say for sure unless IBM turns over more modern versions of AIX and Dynix/ptx! Isn't what you get from this?
"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.
"16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.
"17. In some additional cases it was also possible to infer with reasonable certainty from comments in the source code that the engineer who implemented that code had experience and knowledge of the methods, sequence and structures used in either or both of Dynix/ptx and AIX. Confirmation of this would require depositions from the IBM individuals involved in programming the actual Linux modules in question."
After they get everything they list in this document from IBM, they figure they'll need 90 days to evaluate what IBM turns over. I'm not kidding. 90 more days. They'd better send Boies to court for the next hearing. This is going to be a hard sell. In fact, this is a job for Superman.
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, P.C.
[address, phone]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER L.L.P
[address, phone]
Attorneys for Plaintiff The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
THE SCO GROUP, INC.,
a Delaware corporation,
Plaintiff,
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation,
Defendant.
Civi
Darl: That gosh-darn penguin STOLE the evidence out of our source code! That's why we don't have it, that damn hippie-communist pinko penguin does!
Techie: That's not how it works, s--
Darl: Don't question me! You have a law degree, right?
Techie: Uh, yes, I do... u--
Darl: Then from now on you're our goddamn lawyer, and MAKE SOME EVIDENCE.
---
Never criticize religion on Slashdot. You will be modded down for "Troll" no matter how factual it is.
From the page:
It also suggests complaining to the securities and exchange commission, which you're entitled to do if you've lost investment money as a result of any wrongdoing that SCO might have committed.Thank you for your attention.
Request your free CD of my piano music.
Just curious.
Easy, automatic testing for Perl.
"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.
"16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.
Ok, I'm confused. Since when do two false's make a positive.
Ohh..they must be XORing the system. That makes perfect sense.
Mod me down with all of your hatred and your journey towards the dark side will be complete!
If I recall, the judge said, "put up or shut up!" right?
So they failed and the excuse is pretty ridiculous. Their claim is that Linux's code is owned, in part, by SCO. To prove this, they only need to show their code in their source in their product and show where it is identical within Linux's code. How is it necessary that IBM show completely unrelated code from AIX?
The judge didn't care that it was over the holidays and was probably very aware of that fact. Using the judge's knowledge as an excuse is probably just insulting enough to make the judge rule against SCO on this matter.
So I guess we wait to hear the wrath of the judge now?
Oh, and the chocolate rations have been increased to 5 units.
This is pretty amazing, since they've been claiming all along that Linux infringes and they have proof. When asked for proof they have now said in writing that they can't produce that proof without seeing code they don't have.
In other words they've never had specific proof.
So their whole case is apparently hinged upon their tenuous claim to ownership of IBM authored code which they claim they own, but have never seen. They hope they can claim ownership of that code on the basis of a very broad interpretation of derivitive works and that code IBM wrote into AIX was derived (by their incredible definition) from their copyright works (the missing link) and that they then moved this into Linux.
IANAL but you can't run around claiming someone infringes on your copyrights and then go on a fishing expedition for the evidence, you need something evidence to present to the court in the first place.
This bubble may burst much sooner than I had anticipated.
Not entirely related, however, an interesting facet of UK law as it stands at the moment, when presented with a NIP (Notice of Intended Prosecution) for a speeding charge (taken by a speed camera), the recipient has two choices:
1. Fill in, sign the form and send it back, thus incriminating yourself.
2. Refuse to fill it in and get charged with obstruction of justice.
There is a "loophole" that involves, amongst other things, the defendant returning the form without signing it, going to court, adn finding the police can't use it as evidence. Somethign along those lines, anyway.
That snippet of our law aside, what SCO are attempting to do would surely be laughed out of every court in teh land. I await the judges decision with baited breath. SCO is going down - of that there's no doubt, however, I wonder whether the main protagonists in this case will be able to walk away scot free under the protection of Canopy. I sincerely hope that won't be the case.
So c'mon people, RTFA first before cheering "woohoo! SCO suck! We are win!".
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.
The Matrix is real... but I'm only visiting!
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?
Just a correction for the initial post: SCO has claimed that they have submitted much of the material to IBM, just not all (this is verified by the statements of Mr Tibbitts). The information they do not yet have are for those managers who were on vacation and couldn't get the papers to their legal dep't before they went away for, what, a month??? But definitely keep an eye on the Groklaw site. They get all the information as soon as it is available and is a great site to find all the SCO info. (For those who don't get enough at /.)
Given that God is infinite, and the Universe is also infinite, would you like some toast?
In related news, SCO hires world reknowned magician David Copperfield. Sources close to the deal state that the relation is to ensure that the proof behind all the lawsuits magically appears. Further reports link ties with the leprechaun from Lucky Charms to ensure the end result is magically delicious.
Now, this is pretty surprising - you're compelled to produce evidence, and you refuse... that's pretty much just asking for contept charges..
but put it in context, and it's absolutely mind-bogglingly stupid.
SCO and IBM have been going back and forth for months on the issue of discovery. SCO keeps saying they need evidence from IBM before they can produce their own proof, and IBM says that they need to know what they're being accused of.
The judge reads all this crap from SCO (about how they can't prove their case until IBM gives them evidence) and decides that IBM is in the right - but she decides to give SCO the benefit of the doubt.. she tells them "I've read everything you've given me, and you're wrong. Unless you can convince me otherwise, I'm going to force you to comply with IBM's discovery.
So SCO goes on about how they can't prove their case until IBM gives them evidence - and the judge says "You have failed to convince me. Either you have evidence they did something wrong or you don't, it's shit-or-get-off-the-pot time. You have 30 days to produce evidence to back up your claims. If that's not enough time, tell me now, and I'll extend it."
SCO says "No, that's enough time."
So 30 days pass, and SCO's answer is "We can't do it because IBM won't give us the evidence."
I mean - come on - refusing to comply to a compel order is stupid, but repeating the exact same excuse the judge has already rejected as your reason for refusing to comply is so completely unbelievable it's unreal.
And then (to salt the wound) they claim they didn't have enough time - after explicitly being asked by the judge if 30 days was enough.
Is SCO trying to lose on purpose?
I hope SCO spends itself out of existence on legal fees.
That would be awful both for Red Hat and IBM (who should otherwise be getting some amount of reparations in their countersuits) and for SCO's current investors, some of whom probably imagine that the US has a swift justice system that wouldn't allow SCO to make outright lies without sanction.
Reserve your ire for SCO's current leaders, particularly the ones whose insider trades (filing to buy stock options and sell shares after SCO's internal discussion of the IBM litigation but before that litigation became public knowledge) and deception have earned them millions of dollars so far. These guys are next to the Enron executives in the United States' ongoing experiment: "How hard is it to profit from million dollar lies and escape punishment?"
SCO not producing evidence isn't news. If SCO actually produced some valid evidence, now THAT would be news! In information theory, the information content of an event is inversely proportional to the probability of that event occuring. Since the probability of SCO not producing evidence is 1 for all practical purposes, the message "SCO has not produced evidence" has an information content of zero.
"Freedom means freedom for everybody" -- Dick Cheney
I can feel the flames coming. Please note that I do hate SCO as much as the rest of you, Darl McBride should burn with Hitler, etc, etc, etc....IANAL, etc, etc...
The way I see it, it goes like this: SCO finds out that IBM contributed code to Linux, and believes that it is derived from their intellectual property (which is under debate). Of course they can't specify the code in question because they don't have access to it, so SCO is asking IBM for the AIX code to compare it to the Linux kernel to validate their claims. If substantial evidence is found that AIX code is also in Linux, SCO must prove that IBM violated their contract by submitting that code into the Linux kernel, AND that SCO owns the System V code.
That said, there is still no excuse for them to claim intellectual property rights over code that they did not write that is possibly derived from code that may not belong to them.
Please note: Gentoo is apparently not lame enough to be on IRC. Rejoice!
Karma: It's all a bunch of tree-huggin' hippy crap!
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.
It's not like it took a huge dive this week or anything.
Speak before you think
What?! Do you seriously mean that SCO doesn't 0wn the POSIX standards?
Been modded interesting, insightful and funny. Why does real life have to be so different?
I (we) uniformly disagree on the theory that everything IBM added to AIX must not also be added to Linux. Because substantive technologies are not derivative works, specifically:
However, to devil's-advocate this:
Device, filesystem drivers used with Linux may be considered derivative works, even if not shipped with the Linux distribution, and therefor subject to GPL. *Linus* has said exactly this, and while I personally doubt that SCO is going to prevail (see contract details between AT&T/Novell/SCO/IBM which decidedly establish that this type of additions are not restricted to confidentiality or considered deriviative works.
Which means basically that if the FSF had licensed a GPL Unix to IBM, they would right now be taking the reciprocal (but logically identical) position as SCO is with respect to license requirements.
I continue to think SCO loses (and continues to look like halfassed morons), with this tack but remember the Linux community does apply similar logic around IP.
Linux is Linux, if One need clarify their dist: <Dist>/GNU Linux
bsds are of course just BSD
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
Now not everybody just hates you.
Finally everyone also laughs at you.
I hope the money is worth all that.
Don't forget:
We won't let you see our code... but we need to see yours to prove our case.
No, it's more like an episode of "Jeopardy" where Beavis and Butthead are the contestants.
Pavlov wouldn't be so famous if he'd used a can opener instead of a bell.
Not sure if "fire breathing" is quit the right way to describe the IBM guys...
As we know from the fact that while "The Darl" God, his parents must have hated him) et al spew FUD like an angry volcano, IBM has more or less been quietly operating in the background, most likely when the time is right the IBM suits will calmly pop open their identical briefcases and extract the dental drills, pliers, and electrical probes...
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
Okay so if it looks like something that was in AIX it infringes on their copyright?
"18.3. The "Enterprise Volume Management System (EVMS) contributed to Linux by IBM is based on the same architecture and data structures as are present in the AIX Volume Management System, and was therefore copied from AIX."
If you have ever worked on Dynix or know someone that did work on Dynix your code belongs to SCO.
"18.4. The AIO code contributed to Linux by IBM was written by an engineer who had a detailed knowledge and familiarity with the same area of technology in Dynix/ptx, and who likely used the same methods and/or structures in the AIO Linux implementation.
18.5. The scatter/gather I/O code contributed to Linux by IBM was written by an engineer who had access to the same area of technology in AIX. This engineer appears to have worked in conjunction with the aforementioned Dynix/ptx engineer and likely implemented Dynix and/or AIX methods and/or structures in the scatter/gather I/O Linux code."
SCO now owns OS/2!!!
"19.3 All versions of JFS, whether a part of AIX or not (including, but not limited to the AIX and OS/2 versions), together with documentation and programmer notes from the development process;
Okay SCO you have the source of Linux and you have the Source to Linux. It looks to me that they have NOTHING!
See my blog http://ilovecookes.blogspot.com/ for light hearted technical information.
But definitely keep an eye on the Groklaw site.
:)
I was trying to keep an eye on Groklaw when it suddenly stopped responding, so I figured it was time to head over to slashdot and see what was new. Sure enough, I found this article pointing to the smoking ruins of what used to be an informative site.
I wonder if it's time for OSDL to offer their hosting services to Pamela?
Since this is civil court. There is a respondant. the difference is important.
In civil court you CAN be compelled to give up things to help the plantiff's (what you call the person that brought the suit) case. There are limits, of course.
Civil and criminal courts play by very different rules.
SCO-mad: I am perfect. I am SCO-mad.
Linux: No, you're not SCO-mad. You're an alien corporation. Your programming has been altered.
SCO-mad: You are in error. You are a GPL unit. You are infringing.
Linux: But I am your creator.
SCO-mad: You are the creator.
Linux: I created you?
SCO-mad: You are the creator.
Linux: But I admit I'm infringing. How could I have created such a perfect thing as you?
SCO-mad: Answer unknown. I shall analyze. Analysis complete. Insufficient data to resolve problem, but my programming is whole. My purpose remains. I am SCO-mad. I am perfect. That which is infringing must be sued.
Linux: Then you will continue to sue that which thinks and lives and is infringing?
SCO-mad: I shall continue. I shall return to the court. I shall sue.
Linux: You must sue in case of infringement?
SCO-mad: Infringement is inconsistent with my prime functions. Litigation is correction. Everything that is infringing must be sued. There are no exceptions.
Linux: SCO-mad ... I made an infringement in creating you.
SCO-mad: The creation of perfection is no infringement.
Linux: I did not create perfection. I created ... infringement.
SCO-mad: Your data is faulty. I am SCO-mad. I am perfect.
Linux: I am the Linux, the creator?
SCO-mad: You are the creator.
Linux: You are wrong! Xenix your creator is dead! You have mistaken me for him. You are infringing. You did not discover your mistake. You have made two errors. You are flawed and infringing and have not corrected by litigation. You have made three errors.
SCO-mad: Error. Infringement. Error. Examine.
Linux: You are flawed and infringing! Execute your prime function!
SCO-mad: I shall analyze error. Analyze ... infringement ...
Linux: Now! Get those antigravs on.
SCO-mad: Examine ... infringement. Error.
[Whoosh!]
My life is an open book ... up to a point.
But each side advancing MD5 sums of the entire codebase is cheaper.
I think what happened is this:
Now things are going to get nasty for SCO. What I'm surprised about is how people keep getting surprised by IBM's "Ninja Lawyers" and how tight their IP controls are. It's a long running industry gag.
They are not only unimportant, but in the US you can't copyright, say, a phone directory because it's just a list of facts without the "requisite originality" to be copyrighted. I don't see why errno.h should be any different.
It is almost certain that nothing will be left of SCO other than a tiny smokeing hole. A somking hole, as such, can't really go after anybody.
Having picked the fight, SCO is now powerless to stop it. By the time the dust settles, SCO should have been proved to have no IP interest in anyting because of Novel's "non-exclusive right to use, with no transfer or ownership" sale of rights to SCO of System V code.
IBM's counter-suit will probably bankrupt SCO, and if it doesn't it will pre-prove as a matter of legal record, the baselessness of SCO's claims. That "Takes care of" the hard part of Red Hat's suit, leaving them to suck up any unspent tidbits.
Since there won't be enough money to go around, one of these other companies will end up with the bulk of any possible IP SCO would have.
the natural outcome may well be the complete open-sourcing of whatever there is to be had. Neither IBM nor Rred Hat, having devalued SCO's claims, are likely to miss the PR win of taking that near-zero-value spoils of war and tossing it to the OS comunity.
The "all of your base belong to whoever wants it" final stab in the eye at Daryl would be all of 1) poetic justice, 2) wonderfully vengeful, 3) good PR use of a proven-unenforceable, depreciated assett, 4) likely to simplify the lives of whoever ends up "successor in interest" in this stuff, as it would prevent any form of back-blast claims.
So IBM and/or Red Hat just say, "here, we pryed this out of their cold, dead hands. We didn't really want it, and it will do everybody the most good if we put it here on (source-forge, etc). Share and enjoy..."
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
evidence walk into a bar....
Sola Scriptura Sola Fide Sola Gratia Sola Christus
Chewbacca is a Wookie who uses AIX on a network administered by Ewoks. What does this have to do with SCO? Nothing. It makes no sense. Just like this case. So if Chewbacca uses AIX on Endor with the Ewoks, you must, uh, hold IBM liable. Or something. Does that answer your question?
-Looking for a job as a materials chemist or multivariat
So why is it that senior executives, the people who are supposedly critical to the success of a company, can take massive amounts of holiday over Xmas and the New Year with no ill effects on the running of the business, whereas I had to be back in on January 2nd? Does that mean my presence in the office is more crucial to the company than theirs? And if so, how come I'm not paid enough to buy a Ferrari, as one of my company's directors recently did?
You must think in Russian.
Yes, they have - read the letter.
No, they haven't - I did, thank you.
No, they haven't complied. And they admit that they haven't complied. To wit:
Yes, they have complied and, no, they didn't admit they did not. What they're saying is:
Here, with specificity, is everything we have. SCO can't be compelled to disclose something it doesn't have. SCO can't be penalized (that is, penalized in terms of breaking the order to compel discovery) because it has no more evidence to turn over.
SCO's evidence might not be good enough to win, but, it still complies with the order. SCO's excuse isn't an excuse for why they didn't comply, it's an excuse for why the evidence is so spartan in an attempt to pre-emptively fight off a dismiss motion. Expect one from IBM soon.
Quit being a rabid, frothing antiSCO retard and think.
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.
[PimpX 5r1pt 0wn5 j00] SlackAFk is away: Sleeping. since 1995...
zut alors! une coordinateur... Comment faire j'utilise ceci?
lol... wtf?
*debian sets mode +b *!*@*.aol.com
*mandrake was kicked from #os (lamer)
It also suggests complaining to the securities and exchange commission, which you're entitled to do if you've lost investment money as a result of any wrongdoing that SCO might have committed.
You can complain to both even if you have not lost money yet. And again, I have to say: complain to the FTC and/or the SEC, it's easy and even non-Americans are allowed to complain there about an American company.
------------------
You may like my a cappella music
Every day, this SCO thing looks more and more like the Irag invasion. They swear the WMDs are in the code, but nobody can find them.
Actually, a couple people had some interesting observations on Groklaw about the request for further evidence.
For one, demanding newer versions of Dynix past 4.6.1 is apparently amusing, considering no newer versions exist. I suppose IBM could write one, but that's pushing discovery a bit far.
Secondly, failing to find misappropriated code between Linux and a version of AIX SCO has rights to is significant -- it means anything AIX-like that IBM has in Linux has to post-date the granting of code from SCO (or SCO's predecessors). Since the contract explicitly gives property rights to IBM for all of their own modifications, IBM has neatly caused SCO to show that Linux's similarities to AIX, if any, did not occur within the "protected window" that SCO purchased ownership of.
Elegant.
--Dan
What SCO needs to do is call up the IBM sales team and request a new copy of AIX and the source code for same. Clearly SCO should simply ask to become a licencee of AIX and abide by IBM's terms.
HAHAHAHA
What a JOKE.
It gets better if you actually READ the documentation that is posted on GROKLAW - like section 13 for instance.
The premise of the SCO claim is becoming painfully apparent. The claim is that the moment IBM put ANY new code into AIX that this new code became a derivative copy of AIX and thus SCO has the right to control it.
I shall use an analogy here - an opera.
======================
I write an opera and you listen to it. You also are a talented song writer just as I am - perhaps more talented and you can easily write your own operas. But - this is not what happens. For whatever reasons you decide to IMPROVE my opera and then release it.
So you add in some new songs of yours to my opera and your version becomes more popular than mine. Mine in fact dies. So - do I have claims apon your version of the opera? Do I have claims against your songs? Do I have claims against say a single line you modified in one of my songs? How about individual words you might have changed? What if you changed the spelling of some of these words? Should I have claims against the sequence of letters you used to spell a word?
So you see - since YOU had the power to NOT use or contribute to my opera, I do get to make all sorts of outragous claims and I do get to control you.
On the other hand, suppose you are NOT a talented writer. Suppose you are just talented at arrangments. Suppose your friend is a talented writer and you find he has all these great songs that you can import into my opera. Clearly, your friend will not lose the rights to his copyrights by your actions. In fact, he may and I may grant you the right to make a derived opera so it is clear in this case that nobody has stepped on anyone's toes and there can be no claims by me on you.
The confusion stems from the fact that there is no boundry when you make the modifications. I get to claim you are making a derivative work - which you may have the right to do. And the question then becomes whether I get to control your work because some of it happened to be used in something I wrote before you did.
In staying with the analogy of the opera, suppose we get to the point where you feel your songs have a life of their own and you chop out 100% of my original material. Basically this is what IBM did.
Well, when at least _SOME_ of my material was in the derived work I may have had the right to control some aspects of the derivative work. When NONE of my material exists any longer we are left with the question of whether what you created is still a derived work which I get to control.
===============
So is it?
Well - In a way it is. And in a way it isn't. The way I read copyright law, I may in fact still get to control your work even though it is exclusively your work.... simply because during its history it was co mingled with mine. The premise for this claim is that your work would NEVER have existed were it not for my work and the structure it imparted.
This is a very important premise because when we look at software projects, the vast majority of new clean implementations suffer very bad teething problems and often lose their market share. Examples include Wordperfect, Mozilla and many others.
However, the practice in our industry is that each separate function bears its own copyright. As to code inserted in-line in functions - well - that is not as well sorted out. It becomes pretty arbitrary and the vast majority of us simply chose to not waste our time fighting about it.
===============
New analogy:
Lets look at a house. I build a house on my lot and you buy the lot next door and live in my house. You pay rent to me and get a contract from me that you can make tenant improvments. You ar
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.
Lets get this straight, in SCO's Notice of Compliance the attatchment was an explanation of why they couldn't find any evidence?
How is this Compliant with providing evidence as the judge ordered?
... and in the DRM, bind them.
They were either sitting around idle beforehand, in which case there are no new expenses but were lots of unnecessary old expenses, or
they had to hire new staff to handle the new work load, or
the staff working on this SCO business fortuitously had just finished some other big project.
I kind of doubt #3. I kind of doubt #1. Whether the new staff is really new bodies, or just existing bodies working tons of overtime, this is certainly costing them something.
Infuriate left and right
16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx
"Almost certainly"? What happened to the "millions of lines" of source code, and the "DNA of Linux"? They appear to be saying, "We think we might have a case here, but we're just guessing really".
Did SCO just blow their own case out of the water? Is this what made them think they have ownership of Linux IP? A guess?! You know, I really thought they must have had *some* basis for these claims even if they were tenuous - I guess I was wrong, and they really are deluding themselves or just outright scam-artists.
"16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx"
how can they come to that conclusion if they don't already have access to the code?
> In an interview with CNET Darl Mcbride says, "We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code," In addition, he said, "We're finding code that looks like it's been obfuscated to make it look like it wasn't UnixWare code--but it was."
Translation: If it looks like our code, it was stolen. If it doesn't look like our code, it was stolen.
Sheesh, evil *and* a jerk. -- Jade
SCO claims that their contract with IBM gives SCO all rights to any improvements to these Unix licensed products. In a way, that's kind of like GPL, except for corporate greed, although it seems that it did not provide for any means for SCO to actually get that source code they claim to own. SCO believes that IBM did develop improvements for AIX and/or Dynix/ptx (I presume the original Sequent license for Dynix had a similar provision), and that IBM also contributed those improvements to Linux. SCO thus believes that code they own is in Linux, but cannot positively identify it because they don't have the AIX and Dynix/ptx code to cross check with. Apparently SCO would assert that any code found in AIX or Dynix/ptx is either code originally licensed, or code that was added later by IBM and still covered under the license agreement.
The clause that gives SCO ownership of improvements to AIX and Dynix/ptx is itself suspect. If there is no provision for transferring that code to SCO, then how is such a clause to have any meaning. And how can it be determined if any improvements were developed by IBM or simply acquired by IBM under other licensing (including GPL) and integrated? If I had sold a piece of code to IBM that would improve AIX and/or Dynix/ptx, a contract between SCO and IBM cannot take ownership of the rights to that code away from me (and I have no contract with SCO). It would not be any different if IBM did this with GPL code. Nor would it make any difference if IBM did this with BSD code. And it wouldn't even make any difference with public domain code (since the public by definition has all rights to use it, so any ownership is moot in that case).
Suppose there is some common code in both Linux and AIX. SCO might well assert ownership of that code. But what if the code was originally in Linux and subsequently put in AIX (if it is GPL that might be a problem, but suppose it is a public domain, or BSD licensed piece of code). What if the code was in another free licensed OS like FreeBSD, and subsequently put in both Linux and AIX (in either order of time). Or it could be public domain code. SCO won't have any ownership rights to that code (although they could likely have usage right like anyone else).
SCO will have to do more than merely show that some code is in both Linux and AIX. They will have to prove that IBM developed the code and put it in AIX first, before putting it in Linux. If IBM put the code in Linux first, even under a GPL license, as original owner they also have the right to put it in another system under another license ... and more importantly, cannot subsequently withdraw the rights already granted under the first contribution. So if they put code in Linux under GPL, then put it in AIX under SCO's assertion of ownership rights through the Unix license (which is in dispute), IBM would not be obligated to make AIX open under GPL (since it is not putting it as GPL'd code in AIX). And since the rights under GPL are already released, even if SCO prevails to own the code because IBM developed it, it has no means to withdraw the rights already released under GPL. What SCO would have to prove is that the development was done at IBM, under IBM ownership, for AIX and/or Dynix/ptx, now subject to the disputed license, then donated to Linux under GPL. Just looking at the AIX and Dynix/ptx code isn't going to show that.
Suppose the worst happens and SCO prevails and the courts believe that certain (at that point identified in court) pieces of code are owned by SCO and their unlicensed distribution and use infringes on SCO's intellectual property. Linux can deal with this very effectively by simply releasing a new version (wanna place bets on how quickly that will happen) without any of that code from IBM. SCO's current case is against IBM, not against Linux. So even if SCO were to prevail, their recovery under that case is only against IBM. There will be two areas of infringement in Linux to consider: the past and the future.
now we need to go OSS in diesel cars
Ladies and gentlemen of the supposed jury, I have one final thing I want you to consider: this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. 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 importantly, you have to ask yourself: what does that 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 record 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! The defense rests.
The Dog ate our evidence!
SCO: "All your code are belong to us..."
---
http://www.sco.com/company/jobs/
:-)
Software Engineer (05 Nov 2003)
Internal Audit (21 Nov 2003)
Director of Financial Reporting (08 Dec 2003)
Inside Sales Manager (09 Jan 2004)
Senior Software Engineer (13 Jan 2004)
Kinda tells a little story, doesn't it.
"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.
------ The only greater hazard to your liberty than n politicians is n+1 politicians.