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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."
maybe this is the beginning of the end. Hope those SCO licensing fees are refundable...
If SCO can't produce the offending code? Perhaps Darl McBride and his lawyers would like a stay in a nice prison cell with a guy named Bubba for filing a worthless lawsuit. My guess is that SCO may claim that revealing this code would reveal a trade secret or something, so I expect them to fight back against this.
C:\>
A fair ruling IMHO.
As per usual, Groklaw has the full treatment.
Basically, the court ruled SCO must put up within 45 days, while IBM must also give AIX (but not all versions) to SCO.
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.
It's a cute judgement, since it is fair to both parties while being devastating to SCO at the ame time.
It'll be interesting to see if they will play the 'we need the AIX code!' card again for the third hearing running.
How many times have we seen someone say "This is the beginning of the end" when a judge asks SCO to produce something Months pass, appeals are made, claims withdrawn and changed and the whole thing just keeps dragging on.
Reminds me of the conviction of Shoko Asahara for the Sarin gassing of the Tokyo subway. Only eight years to finally sentence him to hang.
But wait!
He's appealed, and thus begins another eight to ten years of legal wrangling. Each time the government says they'll speed up the court system but very little actually changes.
If you don't want to repeat the past, stop living in it.
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.
Yes it is. Because IBM has the same 45 days to produce this as SCO does to produce its evidence of infringement.
SCO has already stated in court that they cannot possibly comply with this without all the AIX code. Now, they are neither getting all the AIX code or the chance to use it to prove infringments, since IBM is hardly going to hand over the source at once.
(This is of course what the court intended by giving them a concurrent deadline. SCO must prove their case on their own hand, but IBM must still comply with discovery.)
It won't matter because, since SCO will have to divulge which lines they lay claim to, and the trial will determine which lines they actually have a legitimate claim on (if any), we will know what needs replacing and it will be replaced. The replacement lines will probably be incorporated in distributions before judgment is passed.
End of story. End of SCO.
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire
Both are correct. Every geek I've heard say it uses the word "skow". Business people probably say "S.C.O."
-B
IF SCO had a case and could PROVE it they wouldn't dragging the case until now. They would show it at first hearing, bringing reams of printed code (the so called millions of lines) and an account number to IBM deposit the due amount.
If you had 1 billion of damages that you could prove and document, comparing code you wouldn't do such a circus, you would present evidence and documents ASAP to receive the due amount. In fact, if they had a case IBM would have paid or bought them long ago.
Novell has been sitting on the sidelines sending polite setup letters for a while. Perhaps this is what they have been waiting for.
By suing Novell's customers (for which SCO has been providing an administrative service) SCO has:
1. Clearly defied a contractually valid direct order
2. Took actions and asserted rights not specified in the contract, and
3. Demonstrably harmed the product's (SysV licenses) future revenue stream.
Perhaps SCO thought the suit against Novell would somehow shield them from the reality that the only thing propping any of this up is their contract with Novell.
Here's to hoping for some "quick" justice.
The Flatlander
This really isn't all that uncommon. With all the lawsuits in the business world, frequently a company will get sued by someone who has a relationship with a company that they also have a relationship with. The lawsuit may piss the company off, but not enough to sever the business relationship altogether. I suspect Novell feels like their shares under the Norda trust are valuable enough not to sell them just because they are being sued by a Canopy company. Especially since this lawsuit represents little long term harm to Novell.
I'm sorry to break it to you but the fat lady sang the day the Boies and Schilling decided that a $1 billion contingency wasn't compelling enough and that they wanted to be paid by the hour. When your own lawyer doesn't believe you have a good case, the game is over.
once it is removed- they have no issue.. i.e. if I'm using a red circle logo that makes coke uncomfortable, they send me a letter, asking me to stop.. I do so- then coke has no further case/issue-nnless they can prove I damaged them at the time....
You're describing trademark infringement. A better analogy would be if you were bottling a soda based on Coke's secret formula which you obtained illegally. You can't at that point just say "my bad" and stop - you're liable for damages for the period where you were infringing. You're also not going to be able to just come up with a new formula. You already know Coke's secrets - you'd have to either license the formula or hire people with no knowledge of Coke's IP to come up with the new formula for you. For Linux, this could mean that anybody who has worked on the kernel since 2.2 would no longer be able to contribute since they have gained the knowledge from seeing and studying SCO's IP. Anything they do from that point on might be considered tainted, whether or not the code is copied line-for-line. It might also mean discarding everything since 2.2 and starting over from the point where the court determined the infringement started.
This is, of course, after they disobeyed the court's previous order to produce the code within 30 days. I'd almost be willing to bet a million bucks that when April 17 comes around, they'll motion for an extension, and repeat it upon termination of that extension, essentially putting off production of the evidence forever. (But I don't have a million bucks.)
> A better analogy would be if you were bottling a soda based on Coke's secret formula which you obtained illegally.
No, that one's wrong too. Coke's formula is a trade secret. That's a different animal from trademark, or patent, or copyright.
Not that the distinction matters. This is a breach of contract case with potential outcomes involving intellectual property. It's not an intellectual property case.
A post over on Groklaw also mentioned the possibility that IBM could, conceivably, have OFFERED a patch that was subsequently turned down for inclusion in the 'base' tree. Hence, it was a "contribution" (though not one that was accepted) and, possibly not appearing anywhere at the moment, would be "non-public".
The Groklaw post suggested that "intent to contribute" would have been a factor in the wildly flailing SCO claims. My take is that it IF such a thing ever occured then maybe, just maybe, IBM TRIED to put Secret SCO Source(tm) into Linux but failed (which obviously makes it a failure as a "Linux violates SCO Copyright" claim but might, during a full moon on a Tuesday during a solar eclipse, make a basis for a contract violation claim...)
Though this would also require that the patch have been submitted through "non-public" channels, too. Hmmm. Guess even this interpretation is a little weak...
Hacker Public Radio is our Friend
Note that this sentence essentially assumes that SCO's "If A and B are linked into the same binary, then B is a derived work of A" theory is wrong. For this question to be even answerable, every chunk of code that SCO claims is a "derivative work" of System V is going to have to be a modified version of code that is already included in System V.
Somehow I don't think "We don't actually have any JFS, RCU, or NUMA code in System V, but under our theory we don't have to" is going to be a very good answer to this order, but it's basically the only answer SCO can give.
Superficially this order doesn't look like a big win for IBM, but since order 3 implies that Judge Wells doesn't believe SCO's ideas about "derivative works" and order 5 implies that Judge Wells does believe IBM's ideas about the GPL... well, that's about as good as the order could get without actually throwing out any of SCO's claims.
Someone needs to tell SCO that the GPL text is not a joke. There's a reason it shows up again and again. And no, it's not because it was copied from their code base.
What happens if in 45 days SCO produces proof that their copyrighted code IS in IBM's code? What will that mean for IBM, for the Linux community?
/. like to assume that SCO is run by idiots, it makes sense that the people in charge of a public company know what they are doing.
While it is certainly likely that SCO is just blowing smoke, I think we should consider the possibly that they are not wasting all this time/money for nothing. They knew when they started this nonsense that at one point they would have to prove their claims.
While we at
Thank you Mario! But our princess is in another castle!
No, it's much worse than that for SCO.
They must produce all the lines of Linux source code (with specificity) that they claim rights to and present the list of persons and the terms and licenses they distributed them under.
That's where the Kool-Aid is spiked. If SCO executes this order, IBM reads the court record in their countersuit -- SCO submitted evidence -- and then asks for summary judgement. Criminal penalties apply, since the infringement is clearly willful.
If SCO doesn't execute the order, then Judge Wells is free to find SCO in contempt and dismiss the charges with prejudice.
Both are correct. Every geek I've heard say it uses the word "skow". Business people probably say "S.C.O."
Neither is "correct" if you ask me. SCO originally stood for the Santa Cruz Operation, and all employees and everyone who used the software called them "S.C.O.". Their main product was SCO Unix, a pretty advanced version of Unix at the time (and popular) - and it was pronounced "S.C.O. Unix", as the letters were still an abbreviation. SCO was a good company; for a while they had good technology, and they did not engage in the kinds of tactics the current SCO uses. They were similar to other Unix sellers.
Through the years the company has changed hands a number of times, and what is now "The SCO Group" has no real relation to the original Santa Cruz Operation. It is not HQ'd in Santa Cruz (as the original was), for one thing, so even though the current SCO owns that name they have said publicly that the correct pronunciation is now "Skow". As if it's a word. I think this is ridiculous. It's like Kramer on Seinfeld trying to use "Quone" in a game of Scrabble.
I still pronounce it S.C.O. and so does everyone else I know. We're old-school, I guess. Some may see this as a slap in the face at the real SCO, the original SCO, and I can understand that. But "Skow" just doesn't make any sense at all, and it's obvious that the current SCO is trying to profit off the name anyway (otherwise why even write it "SCO" and not "Sco" or "Skow"?), so to me calling them "S.C.O." sort of rubs their face in the fact that they're not who they say they are.
On the other hand, I've got a close relative who was an employee of the original Santa Cruz Operation - haven't bothered asking him what he thinks of me calling the current SCO by the same name. Kind of afraid to.
I'll be interested to see when (or rather, if) MSNBC reports this on their site - they've been quite good at reporting on the case lately, since SCO has been filing lawsuits, but now that the shoe is on the other foot, we'll see who was behind the reporting.
Seems to me they've been quite quick with the last couple of stories, but nothing about this one yet.
For Linux, this could mean that anybody who has worked on the kernel since 2.2 would no longer be able to contribute since they have gained the knowledge from seeing and studying SCO's IP.
:).
Being that the source is so widely available on millions of cdroms (non desctructable media owned by many individuals and copyable) and harddrives all around the world, if any SCO ip were to be in the kernel, it would basically become public domain (or at least common knowledge
"Especially since this lawsuit represents little long term harm to Novell."
That seems understating the importance of Linux for Novell Nowadays.
To me it looks like, Novell is betting the farm on Linux currently. And wisely so.
"/Dread"
Incredible. Here is an article about the case between SCO and IBM and you're all wasting time talking about how you pronounce the goddamned thing, with a kind of exaggerated neurosis about perhaps pronouncing it wrong.
Grow up and get a life.
And stop worrying about how to fucking pronounce things. You can't even say 'tomato' or 'Linux' or a lot of things in the English language, so why bother?
>>IF SCO had a case and could PROVE it they wouldn't dragging the case until now.
As IBM said on Dec 5th: "either scox has the evidence, or they don't." Scox should have had this evidence a year ago, before they filed against IBM. Scox was given a direct court orders to produce this evidence in January and again in February.
Yet after all this time, and all of scox's obvious "hide the ball" stunts, and all of scox's idiotic execuses. Judge Wells is giving scox credit for making a "good faith effort" and is giving scox at least another 45 days to just produce evidence, and the judge is forcing ibm to turn over evidence to scox - in spite of the fact that it was scox who started the lawsuit.
The judge must be aware of scox's extortion racket, yet the judge is holding the door wide open for scox to continue their crimminal activities.
The Mormon Mafia must be powerful in Utah.
Is there really such a thing as a slam-dunk case?
Would you say that being sued by Liberace for saying that he was gay was a slamdunk win for you?
On the criminal side, would you think that if you were trying an abusive ex-husband for the murder of his wife and a waiter with DNA evidence and a crappy alibi that you would have a slam dunk?
Guess what, Liberace won his suit and OJ walked.
"Bugger this, I want a better world." - Jenny Sparks