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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."
I hope they aren't, I'd rather see SCO get sued up the wazoo by the people they duped...
-*The above statement is printed entirely on recycled electrons*-
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.
I'm not doubting what you said - but you have to look at the logic of such an argument.
"Uh, they're using our code. We want licensing fees. Oh, but we can't tell you what code that is.. we'd be revealing a secret.."
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say "This is the beginning of the end" when a judge asks SCO to produce something Months pass, appeals are made, claims withdrawn and changed and the whole thing just keeps dragging on.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.)
Alas SCO hasn't duped anyone (into buying). The people that paid got exactly what the license was for to run sco code in binary form only. Weather that covers linux or not donest matter. its not what was sold. This is why you read the labels on your food. BacoS is not a pork product.
iirc part of the (legal) definition of a "trade secret" is that it is secret. You can sue someone for revealing a trade secret, but that precludes that it's not a secret anymore, so it'd have to come out in court. Anything that's as widely available as the Linux source is not a secret.
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
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
Actually, the judge's order seems more favorable to SCO than you are suggesting. SCO was ordered to produce only initial code that it claims IBM missappropriated. IBM was ordered [among other things] to produce Dynix, AIX for the parties to argue their relevance and the court to decide. After that they have produced this evidence in 45 days, court will consider and decide whether additional Dynix and AIX stuff is relevant. After that, SCO will have a chance to amend its complaint to include Dynix, AIX, and additional stuff.
I am guessing that's exactly where SCO wants to go: first of all, discovery will take much longer; second, it wants to see Dynix and AIX so they can take every single piece of code that looks similar [in all 3 environments] and blame IBM.
IANAL, but as I understood at this point, SCO is required to produce only minimal evidence, but amend to it later on. Pay attention to the wording in the judge's order with regards to Dynix and AIX code:
This is to include all lines of code that SCO can identify at this time.
The judge also wasn't being harsh on SCO for not meeting deadline to produce code, saying they acted in good faith to produce evidence.
One good thing for IBM was that it does not have to produce any Linux contributions that are publicly available for SCO to look up.
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.
It's time for a structural change in the US legal system,
While the US legal system is far from perfect, it's more a case of being different, instead of defective. The difference is that the US system is more liberal than European courts. I know many will find it hard to believe with the political press it gets, but when it comes to normal cases that you never hear of, the US system is very liberal, giving both parties more chances than a more conservative system would allow. SCO is getting typical treatment in this case, at least in the US. No one is really argueing this. That they have lied, and possibly committed securities fraud is a seperate case, and not within the scope of the current lawsuit.
It may be frustrating, but the role of the court is to find justice, and the US tends to let bad guys go instead of convicting innocents, and giving litigants more leeway to state their case. This cuts both ways, and has good results more often than bad. This gives the small guy a better chance to fight the big guy. Ironically, in this instance, the big guy is the good guy, but this is usually not the case.
It's not perfect, but its not a bad system. It's bad people taking advantage of an open and liberal system. Eventually, SCO will be put down after they have been given every opportunity to state their case. But I would still rather see SCO get away with stuff like this, temporarily, than see innocent people/groups/corporations get rushed in/out of a courtroom and denied justice.
A review of our Patent and Copyright laws is more likely to prevent these types of cases in the future, since Copyright is the central issue in the case and the enforceability of the GPL.
Tequila: It's not just for breakfast anymore!
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.
... I'd rather see SCO get sued up the wazoo by the people they duped ...
Oh I agree, but let us not forget the other people they threatened and intimidated, and from whom they extorted money. At some point the RICO act is going to be invoked, I suspect.
Given what's about to happen to Bernie Ebbers, this is probably a bad time to be senior management of a SCO or a Worldcom.
The higher the technology, the sharper that two-edged sword.
This is hardly a put up or shut up.
It definitely requires SCO to put everything on the table. But it also requires IBM to put everything on the table. Basically, both parties are required to supply complete copies of everything they've ever done relating to Unix. That's a lot. A lot a lot. SCO is required to supply the license that they released everything to anyone ever. IBM is required to provide source control logs for everything they've ever done relating to Unix. IBM is required to provide current contact information for 1000 current and past employees.
This is so, so far from over. The case just got ten times bigger. Of course, this is exactly where IBM will shine. They are made of lawyers. They'll be all over this discovery like flies on shit. Boies 'n' Co's discovery seems tiny in comparison, though, so I think they'll be able to deal with it too.
Assuming that SCO has *anything* to show off, this case is going to be around for a while.
(P.S. I am not a lawyer. Take everything I say a grain of salt.)
(P.P.S. I am drunk. Excuse hyperbole.)
There are no trails. There are no trees out here.
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 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.
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 think you could easily show malicious intent if SCO doesn't own the linux code in question
No, that isn't enough. That would prove their claim was baseless. That wouldn't prove they knew it. You have to prove intent, which is to say:
a. Their claim was baseless
b. They knew it
They could always argue that they were mistaken!!
Though Boies will probably be gone by then since he's paid in stocks and it's going to be worth peanuts when they will get there.
Write boring code, not shiny code!
That's a good thought. It would help things, at least.
I don't really agree with you on unlimited punitive damages though. For that kind of punishment to be exacted on someone, the standard of proof should be "beyond a reasonable doubt". In civil cases, it goes by whoever the jury thinks proved their case better. It's 50-50, not innocent until proven guilty.
Punishment is best left to criminal courts.