Slashdot Mirror
Judge Orders SCO, IBM To Produce Disputed Code
An anonymous reader writes "A NewsForge story [part of OSDN, like Slashdot] says a court ruling by Judge Brooke C. Wells in the SCO Group vs. IBM intellectual property lawsuit amounting to 'show me the code' was released today in the form of a nine-page document [PDF link]. For a change, the SCO Group had no comment, because Judge Wells told it not to issue any. The judge said SCO is to provide and identify all specific lines of code IBM is alleged to have contributed to Linux from either AIX or Dynix, provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX or Dynix are alleged to be derived, and provide and identify all lines of code in Linux that it claims rights to."
The title makes it look like both SCO and IBM is supposed to produce code as well, when in fact just SCO has to show proof. Bad Simoniker!! Bad!!
Dogg
...now SCO has 45 days in which to produce the offending lines of code before IBM calls to dismiss the case. This is the beginning of the end.
The Server that they have to post their PDF filings to runs Linux! (The webserver for the court.)
SCOX went up after the ruling, though it fell over 10% during the day (the net is still down 8%), so it is a good thing :).
SCO may try to spin it as a positive for them, though I do not see how any of it can be positive...
S
The dogcow says "Moof!"
Some interesting things in this order: SCO doesn't have to provide anything until IBM releases "about 245" products that make up the Dynix/AIX family to them. It also may have to provide the code to the OS's themselves. The judge state some prior cases as why SCO should be allowed to examine IBM's internal code.
SCO and IBM, under IBM list of orders, should come up with a list of the top 1000 relevant witnesses. Holy smokes.
This doesn't look like a SCO loss at all. It looks like a big court-ordered phase of "looking for more proof". Remember, this is the discovery phase, or so I've read.
It's not quite "put-up-or-shut-up" for SCO. You see, there are some directions in the ruling for IBM as well (apparently not relevant to the story here at Slashdot). For example, under the heading "IBM", the ruling also says that SCO made a "good faith effort" to comply with the Court's prior order, and so the Court removed the discovery stay that it had previously ordered. There are quite a few things that the Court has ordered IBM to now turn over to SCO, such as certain releases of AIX and Dynix that SCO had requested. Actually, IBM is being told to turn quite a bit over to SCO, it's not really a "win" either way.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
The order says SCO has to identify UNIX code in Linux Within 45 days... IBM has 45 days to make AIX/Dynix available to SCO. BIG DIFFERENCE!
My wife doesn't listen to me either...
In the Harvard/JOLT webcast video, Darl pronounces his company as one word, SCO, not S-C-O.
This is of course bad for SCO, who claims they need IBM to provide AIX before they can identify what is infringing. As IBM most likely won't be handing over AIX in the next 44 days or so, obviously SCO will not be able to comply.
From the ruling: "This is to include all lines of code that SCO can identify at this time." Later it says "Following this production, SCO is to provide additional memoranda to the Court indicating if and how these files support its position and how they were relevant." There's nothing in there that says that SCO's initial list has to be exhaustive (in fact it says the opposite), and there's no time limit on SCO to respond to the receipt of AIX source code.
It's from Groklaw, but the DB server seems ready to crash!
... obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(i). A Court may also limit discovery if "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(iii).
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
______________________________________
THE SCO GROUP, INC.
Plaintiff,
vs
INTERNATIONAL BUSINESS MACHINES CORP.
Defendant
Case No. 2:03cv00294 DK
ORDER REGARDING SCO'S
MOTION TO COMPEL DISCOVERY
AND IBM'S MOTION TO COMPEL
DISCOVERY
On February 6, 2004, the Court heard arguments regarding SCO Group Incorporated's (SCO) compliance with the court's prior order of December 12, 2003. The Court also heard argument on SCO's Motion to Compel Discovery. SCO was represneted by Mark Heise, Brent Hatch and Kevin McBride. International Business Machines Corporation (IBM) was represented by David Marriot, Todd Schaughnessy, Chris Chow, and Amy Sorenson.
The Court having heard argument, having read the parties' memoranda, having considered relevant case law, and finding good cause shown, hereby enters the following Orders:
I. SCO
Plaintiff/Counterclaim-Defendant is hereby ORDERED:
1. To fully comply within 45 days of the entry of this order with the corut's previous order dated December 12, 2003. This is to include those items that SCO had difficulty in obtaining prior to the Court's previously ordered deadline of January 12, 2004.
2. As previously ordered, SCO is to provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX or Dynix. This is to include all lines of code that SCO can identify at this time.
3. SCO is to provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX and Dynix are alleged to be derived.
4. SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to.
5. SCO is to provide and identify with specificity the lines of code that SCO distributed to other parties. This is to include where appplicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released.
II. IBM
In light of what the court considers SCO's good faith efforts to comply with the Court's prior order, the Court lifts the discovery stay it previously imposed.
Rule 26(b)(1) of the Federal Rules of Civil procedure states in relevant part: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... The information sought need not be admissible at the trial if the information sought appears to be reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). This rule has been interpreted broadly by the United States Supreme Court. See Oppenheimer Fund, Inc. V. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380 (1978). "[A]th the discovery stage, the concept of revelance should be construed very broadly." Gohler, IRA, er al. v. Wood er al., 162 F.R.D. 691,695 (D. Utah 1995). However, a court may limit discovery where "the discovery sought is
Based on the Court's decision to lift the discovery stay and because relevance should be construed broadly at the discovery stage, IBM is hereby ORDERED:
1. To provide the releases of AIX and Dynix consisting of "about 232 products" as was represented by Mr. Marriott at the February 6, 2004 hearing. The releases are to be provided within 45 days of the entry of this order. Following the production, SCO is to provide additional memoranda to the Court indicating if and how these files support its position and how they are relevant. The memorandum is to include with specificity, and to the extent possible, identification of
Judge Wells' Order - SCO Doesn't Get All AIX Files,IBM Doesn't Have to Go First
Wednesday, March 03 2004 @ 06:28 PM EST
The order is in. She tells both sides to comply with discovery, but in the case of IBM, she specifically restricts the requirement that they provide AIX files to the 232 mentioned by IBM's lawyer, David Marriott, at the last hearing on February 6. SCO must demonstrate a need for more if they want more. But they don't get every AIX version from the beginning, as they had repeatedly requested. SCO has 45 days to comply fully with IBM's discovery demands. Remember, that is what IBM asked for, that SCO be given a date to comply.
SCO has 45 days to identify "all specific lines of code" they allege IBM put into Linux from AIX or Dynix; identify and provide "with specificity all lines of code in Linux that it claims rights to; provide and identify with specificity the lines of code that SCO distributed to other parties, and this is to include "where applicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released."
The previous discovery stay is lifted. IBM has 45 days to provide "the releases of AIX and Dynix consisting of 'about 232 products' as was represented by Mr. Marriott at the February 6, 2004 hearing." After that SCO can provide memoranda indicating "if and how these files support its position and how they are relevant." If they ask for more files, they are to explain reasons for such requests.. Then the court "will consider ordering IBM to produce more code from AIX and Dynix."
What it all means in practical terms is that the court didn't buy SCO's argument that it needed all of AIX and Dynix and it specifically rejected its request that IBM *first* provide AIX and Dynix, so that after that SCO could find what it needed. Since, obviously, IBM is unlikely to provide its side of the discovery order until the 45th day, SCO, under the identical 45-day requirement, will have to provide its answers to discovery before it gets to look at any more AIX or Dynix.
SCO is granted one request: that IBM turn over discovery regarding top management, including Sam Palmisano. Also Judge Wells asks that IBM turn over any nonpublic contributions to Linux that it may have made. She will learn more about Linux as the case goes along, and I believe she will find there aren't any such. SCO asked for source logs. Wells says fine, but SCO has to do the same for IBM. I don't remember IBM asking for source logs, but it is only fair.
She then asks both sides to explain how the new amended complaint impacts IBM's Motion to Strike. That's it. She would like the case to move forward, but she has done so in a way that is not a problem for IBM. SCO, on the other hand, has to provide what it told her at the hearing it can't provide without looking at all of AIX first. How they will do that remains to be seen.
We hope to have it transcribed soon. Here is the PDF from SCO's website. We should have a local copy soon, if you prefer to wait.
To refresh your memory, here is the transcript of SCO saying it is impossible for them to provide the discovery without getting AIX and Dynix first:
MR. HEISE: The reason I am maybe going more into the merits than I probably should in front of Your Honor is it directly ties into the adequacy of these interrogatory answers. The interrogatory answers detail exhaustively the contributions of AIX and Dynix that were made in there. There is no dispute about that.
They then in this letter that they wrote earlier this week said, Well, you didn't identify the line-for-line matching in every single place. There are two times when we did not do that in our answers to interrogatories. One is in table A of our interrogatories which we identified eight different files and we said the copying is complete throughout. We are not matching up the lines and I gave an example of that in the demonstrative aids when it says copying of Dynix slash into Linux, and you can s
Lawsuit
SCO has finally decided who they are going to file suit against.
Cheers
Z
Oh well,
They mean that if IBM secretly (without anyone not involved knowing) passed any code to Linux, they should reveal it now. since actually all contributions to Linux are public because Linux itself is all public, it's pretty much irrelevant. Unless of course an undercover IBM agent, acting as a Random Joe Nerd from some obscure part of the world and not connected with IBM in any way, slipped some IBM's code into Linux as his own... How likely is that?
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
Non-English speakers: "SOL" == "Shit Outta Luck"
It's my understanding from SCO's recent arguments in court, that they didn't intend to point to specific line numbers or specific lines of code.
At the last hearing, SCO dropped both their trade secret and their breach of copyright claims, and came up with a new, more subtle argument.
As I understand it, their argument is that IBM improperly donated expertise -- around stuff like SMP, etc. -- in breach of their contract with ATT/SCO/whoever, and so they wouldn't be showing direct evidence of line by line copying (as they originally claimed) but are simply saying that these particular parts of the Linux kernel were wrongfully contributed.
That said, it appears that the judge still wants them to identify line numbers, both in Linux, and in the original source code where the methods were supposedly drawn from, even though it's my understanding that SCO no longer seem to be arguing that there was line by line copying -- more a wrongful transfer of knowledge and expertise that was in breach of their contract with IBM.
Gonna be interesting to watch how this plays out.
No, it's fine. She's just applying the same boilerplate logic to Linux that she would to any legal entity. The court will be satisfied by a statement of "we made no non-public contributions to Linux", just as they would be satisfied by "we made no non-public contributions to Microsoft". They know any statement IBM makes is either true or perjury--like any statement they receive from anyone. Don't read too much into it. A lot of legalese is just covering all the bases, even bases that aren't applicable to the situation.
SCO is no longer claiming any code was stolen from their product and inserted into Linux. They are claiming that IBM developed AIX and Dynix from Unix System V (as licensees) and then ported routines from AIX to Linux. The code in question never belonged to SCO or their predecessors.
SCO is arguing that the code that was contributed to Linux is derivative of their Unix, because it was originally developed for Unix. It's a very optimistic approach to the law, on their part.
Yes, but they will also have to point out what lines in their own source jfs, numa and rcu was derived from. The code being in AIX or Dynix is not enough.
God is REAL! Unless explicitly declared INTEGER
Heh. 31% of the float is shorted. See here. At what point do you start worrying about short squeezes?
Heh. 31% of the float is shorted. See here. At what point do you start worrying about short squeezes?
Worry about a short squeeze on a falling stock? Do you get your smoking supplies from Darl? A short squeeze is only an issue when the stock price shoots up, which (IMHO) SCO is very unlikely to do.
-- MarkusQ
17.96!!!!
You rock dude. I'm a couple of bucks behind you (and happy as a clam) but I couldn't find any shares to short after they broke $17.
Were you just lucky, or just a better pouncer or something?
-- MarkusQ
In SCO's teleconference they repeatedly referred to the judges suggestion to "tone down" their public statements regarding the case.
Coincidently this helped SCO obfiscate answering more hardhitting questions by the press in said teleconference.
Figures, now that the popular press seems to be "getting" it at last the courts all but muzzle them - not that I expected a straight answer for Darl and Co. But being able to legitimately hide behind this is irksome all the same.
SCOX is down 13% today.
The term you are looking for is "dead cat bounce". (Well, that's one of the ways a dead-cat bounce can happen.)
That's a "dead cat bounce," so called because after that it never moves again other than slowly melting into the ground.
IMHO, anyone who's short SCOX at this point will probably hang on till they're back in their pre-pump-and-dump trading range (i.e. << $1), at which point it won't matter that much. There are several reasons for this (e.g. taxes, ROI), and I wouldn't expect enough people to decided to close out all at once to cause much of a bounce.
-- MarkusQ
You can hear it for yourself in the recording: http://sco.penguinman.com/2004-03-03-SCOX.torrent
Belief is the currency of delusion.
This happened earlier in court when they met in chambers. It was commented that IBM lawyers were looking smug coming out from that meeting. We suspected the judge had gagged Darl, but it wasn't confirmed until ~today.
Belief is the currency of delusion.
UNIX isn't open source and SCO clames code was taken from "SCO UNIX" and put into the open source Linux kernel...
The judge has just let IBM control what code SCO gets to see. IBM would not offer to hand over 232 files containing their code without having fully vetted it first.
No.
IBM has offered the full source code to 232 releases of OS versions (AIX and Dynix, put together). IBM doesn't get to vet anything; just hand over the source.
SCO demanded a copy of all the sources for every version that ever existed. If some guy made daily builds for a year, that's a few hundred releases from that guy alone; 8000 people worked on these OSes for years, so SCO was literally asking for billions of lines of code. IBM offered a million or so from the 232 releases. The judge saw things IBM's way.
IBM has been doing IP for decades. They know what you can do and what you can't, and they were careful when they released source code for Linux. Thus they don't need to vet anything anyway; they know SCO won't find anything, since there isn't anything there for SCO to find.
steveha
lf(1): it's like ls(1) but sorts filenames by extension, tersely
Remember, SCO claimed that they couldn't provide any evidence of copyright infringement without access to the AIX code. Now, they are either going to have to do one of the following:
None of these alternatives favors SCO in the least. IBM's responsibility to make the AIX source "available" to SCO, IMHO, only shows that the judge has a somewhat morbid sense of humor, in that she seems interested in finding out exactly how tight SCO is willing to draw the noose around their own neck...
"Great men are not always wise: neither do the aged understand judgement." Job 32:9
Her article on the day's SCO events. Posted before the Judge's order in teh IBM case.
-------- In Soviet Russia, "Soviet Russia" sigs hate Slashdot.
Check this out.
Shit is really going to hit the fan for SCO.
Save your wrists today - switch to Dvorak
Halloween X:
:)
MS is funding SCO. Evidence at OSI!
Absolutely amazing. If this is real.....some heads will roll
Time for the SEC is whoop some ass
WhiteWolf666 an exBush supporter. All you new-school,compassionate,save the children Republicans can rot in hell
The American legal system generally does not award attorney's fees (unlike European civil law systems). There is a chance that legal fees can be awarded, but it's not as likely as most people might think.
I was an employee of old S.C.O. - internally we got into the habit of calling it "sko", but I remember sometime around the rebranding (slightly newer logo -- initially we didn't like it, but it was better) there was a management edict to use "S.C.O." since that was the correct way to say the name.
I'm AC since it's like having leprosy admitting that one worked for SCO. I wonder what I should put on my resume (CV) that I intend to update
in a few months;
1990 - 1999 The Santa Cruz Operation (*) blah blah blah did this'n'that blah blah
[Footnote in 4pt font]
(*) No relation at all to now defunct "SCO Group".
This is not the end, but the beginning. The beginning of the end. Still Darl will be laughing all the way to the Swiss Bank... just shows you that you neither need to be good, kind, generous, thoughtful, clever or good looking to be rich. God doesn't have favourites. Hmmm, now what was that second commandment again... in a modern translation it reads "Love your Open Source Partners". Naughty Darl...
On the contrary - regarding the AIX/Dynix code, IBM has been told to hand over the code that they themselves offered to turn over in the previous court hearing.
They has NOT been told to turn over the code SCO wanted - as they wanted all iterations of the code.
Over at the EV1 boards, all kinds of misinformation is flying about. The biggest misinformation is by the EV1 customers that are defending EV1 for funding SCO.
First, the reported price paid by EV1 is 1 million, not 28 million or 30 million.
Second, Linus is not the only one that can revoke rights based on the GPL. Linux is not the only copyright holder. There are hundreds, if not thousands of copyright holders inside the Linux kernel. nmap pulled their application due to violation of paragraph 4. And they have the right to do this, they don't have to ask Linus to do this for them.
Third, those that are defending EV1 are buying, hook, line, and sinker, the bull about EV1 defending their customers. It isn't EV1 customers that would get sued by SCO. It is EV1 themselves, the lessors of the servers, not the lessees. This is a rationalization, because you can't, or won't, accept the truth.
Fourth, one million is not pocket change. This is a big number for SCO, sorely needed funding now that the 50 million from Bay Capital is drying up, and now that Microsoft/Sun funding has finished affecting their books. Also, it lessens resistance. Previously, no one purchased licensing. Now EV1 has stepped in, and SCO can publicly cite them as a company that purchased a linux license. This gets rid of the "not me first" issue that companies may have. And enables the bean counters at the other companies to show another company as an example of why they should buy...
A great many EV1 supporters, from about page 3 of the forums onward, are stating that the posters who state they are going to switch hosting companies are going to move to another hoster who probably already paid SCO, but secretly.
FALSE.
If that is the case, then the SEC filings from SCO are fraudulent. With them being under a microsoft (sorry, slip) microscope, I doubt they would be blatent about fraudulent filings with the SEC. They have stated, that up until the March 3 filing, they have sold NO Linux licenses. As of the March 3rd filing, for the quarter covered in the March 3rd filing, they have a grand total of...hold onto your hats...one customer who purchased their Linux licensing product, with a total income of $20,000. That covers a payment of EV1, with the rest covered in deferred income, and no one else.
Fifth, taking a look at the size of Autozone and Daimler Chrysler, it is highly improbable that EV1 would have been sued. The excuse of legal costs vs. one million is bull also. It won't cost one million for EV1 to spend one day in court to tell the court that the ownership is under contest, and the court to postpone the case until the ownership is resolved. By then, at least a year, or maybe two will have passed, the offending code, if any, will long have been removed from the kernel, and there will be no case. According to the IBM case, the code will be submitted to the court within 45 days. If it goes public, it will be stripped in a few months from the kernel. If it stays sealed, IBM will be working internally to strip the disputed code from the kernel, and they'll have a major announcement in the next 3 to 6 months. Either way, the kernel is cleaned, and the case is over. And if not, IBM throws their weight behind the alternate kernel, GNU/Hurd.
One joker posted that Linux is dead if IBM loses. That shows a total lack of knowledge of the way the Linux kernel is put together. If IBM loses, by the time of the loss, there will be enough leakage of disputed code, and/or enough work done by IBM themselves, to clean the code of disputed sections. That's it.
And to the BSD troll, who I think is the same troll that stated that Linux is dead if IBM loses, sorry, there won't be a wholesale switch to BSD. As stated in the above paragraph, the kernel(s) will be sanitized if necessary. Also, and more importantly to your love of BSD, Darl is already on record as saying that BSD will be looked at after Linux is settled...that doesn't bode well for you position.
Blank lines can BE the entire program too...
:)
as long as you wrote it in whitespace (yes, a programming language based entirely on whitespace does exist)