IBM Says SCO Willfully Failed To Detail Evidence

Robert wrote to mention a piece on CBR Online where the latest volley in the SCO case is covered. IBM is now accusing SCO of having acted in bad faith when they opened the trial against IBM, by being purposefully vague in their evidence. From the article: "All in all, according to IBM, SCO's evidence filing makes it impossible for the company to defend itself. 'By failing to provide adequate reference points, SCO has left IBM no way to evaluate its claims without surveying the entire universe of potentially relevant code and guessing ... Since only SCO knows what its claims are, requiring such an exercise of IBM would be as senseless and unfair as it would be Herculean.'"

Comments

Two Words for IBM--Edit Distance

[eldavojohn]

In college, my professor had a class of a couple hundred freshmen and the problem of making sure no one was copying anyone else's code for trivial homework assignments. It's a similar problem, how do we solve it?

His solution was a simple edit distance program that checked every pair-wise set of homework assignment's source code. You could thus find the highest areas of similar work between two pieces of code or even documents. A simple algorithm--it's the engineer way.

When I took a course in computational biology (or bioinformatics), I was enlightened to the BLAST and FASTA algorithms that could be useful in this case. Basically, you could search by global alignment or some form of local alignment (reducing and increasing complexity of the algorithm, respectively). These algorithms work already with protein chains and DNA so they are more than capable of large sets of data computed quickly and effectively.

The article lists SCO submitting 45,000 pages of evidence and materials--of which I assume is SCO's own work. What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against. The localized areas that score the highest could then be inspected by IBM and give their lawyers ample time to start a defense against points in the documents that will probably be areas of attack for SCO. In fact, it's entirely possible that SCO used this method to quickly identify what it thought to be points of infringement in code.

But of course, like most Slashdot posters, I'd rather just see the judge turn to SCO and say, "Bullshit, case dismissed..." and proceed to tell them off like Judge Judy giving a deadbeat father a taste of the back o' her hand.

Re:Two Words for IBM--Edit Distance

[bloodredsun]

I'd rather just see the judge turn to SCO and say, "Bullshit, case dismissed..."

If only, but I hear that they are considering taking this farce on to Broadway as it's still wowing the crowd after all these years!

Re:Two Words for IBM--Edit Distance

[AstrumPreliator]

I don't know much about the BLAST and FASTA algorithms, but the Levenshtein distance just compares strings. Simply rename everything and tweak the structure of your code somewhat and it can give false results. I know here at university they run all source code through a program (forget the name) that analyzes control flow and other program characteristics and then compare it to those of other students, past students, and source code from the web.

I don't know how effective the program is as I don't cheat, but I do know a few students in the department that have nearly been suspended.

However, your last statement is spot on, the judge should throw them out of court ;).

Re:Two Words for IBM--Edit Distance

[DavidTC]

It's not, as IBM pointed out, IBM's job to find places that it did or didn't copy.

As a defendant, their job is solely to disprove the other side's case.

SCO doesn't have a case. I don't mean that their claims have no merit, although they don't. I mean they have literally not actually made a case. They have refused to sit down and say 'This is our code, and this is where you illegally copied it into Linux.'.

Re:Two Words for IBM--Edit Distance

[bjpowers39]

If you check out the post refering to Groklaw down the page, this is more complex than a simple "compare two assignments" problem. Although, IBM definitely has enough computer scientists and hardware to tackle the problem. Given that, it is not in their interest to do this. SCO brought the lawsuit and has the burden of proof. A defendent is not obligated to compare the code and notify the court (and SCO) or areas of possible infringement. That would effectively let SCO off the hook and potentially give SCO more ammunition in their lawsuit. If SCO wants to sue IBM for infringement, then SCO needs to provide evidence of that in court. Specifically they need something better than "it is somewhere in this mess".

Re:Two Words for IBM--Edit Distance

[UnknowingFool]

The article lists SCO submitting 45,000 pages of evidence and materials--of which I assume is SCO's own work. What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against. The localized areas that score the highest could then be inspected by IBM and give their lawyers ample time to start a defense against points in the documents that will probably be areas of attack for SCO. In fact, it's entirely possible that SCO used this method to quickly identify what it thought to be points of infringement in code.

IBM could do that, but why they waste any more resources and time than they already have. Expert witnesses like Randall Davis don't come cheap. He's already stated that it's near impossible. Given all the time and resources in the world, IBM might come up with best guesses.

Re:Two Words for IBM--Edit Distance

[networkBoy]

There are problems with that system though.
My wife's writing style is rather uniform and predictable.
The database she works from is the same regardless of the calss she is taking, she writes papers and whatnot for her masters/doctoral work (I'm coding an indexing on-line library of reference documents that is more easily searchable).
This database of documentation is a superset of what she had when she was taking her BS degree classes (same data and sourcework, plus new sourcework and data, plus her previous papers).
She has been brought up for plagerism because her paper too closely resembled another paper turned into the same on-line system to detect cheaters, and a published work on the same subject. Problem is, the paper that was used as a reference was one of her bachelor papers, and the published work was also hers (thus no plagerism). Had the teacher not discussed this with her before talking with the dean, this could have turned out rather badly.

How are systems like this to defend against such issues, I for one do not trust that every teacher / prof / dean will do the right thing, and would rather rubber stamp a transcript with the expelled mark for plagerism rather than look at the possibility that the student is simply leveraging some of their previous hard work...
-nB

Re:Two Words for IBM--Edit Distance

[utlemming]

The problem is that SCO is obligated to disclose the evidence. SCO has failed to illistrate the exact infringment. It is not the defendant's duty to illistrate the infringment. Requiring IBM to find the infringment would be like asking an accused rapist to find the evidence of the rape and defend against it. Throwing 45,000 pages of information to a person and saying the evidence is there, doesn't cut it, especially when it only 'shows' infringment in 3 out 201 issues. In court you are required to show each point of injury or they get tossed. That is what the discovery part is all about.

The algorithyms you suggested would better be used by SCO.

Re:Two Words for IBM--Edit Distance

[Fred_A]

In college, my professor had a class of a couple hundred freshmen and the problem of making sure no one was copying anyone else's code for trivial homework assignments. It's a similar problem, how do we solve it?

I don't know how teachers solved that problem but as a uni student in economics (I'd know better now than to study something akin to astrology, but back then I still listened to my parents), my simple fix to the other student's pressing calls for help was "sure, here's a working sorted program for today's assignment".

Apparently our programming course teacher wrote his programs just before handing them out so I caught a few embarassing errors (like divide by zero due to not checking potentially valid user input), so he took to discreetly coming to me before handing out a program and asking "will this run ?".

Hit to aspiring teachers : "discreet" does not work in a class of 20 or thirty twenty or so students at the university.

All in all that course was pretty silly.

Re:Two Words for IBM--Edit Distance

[Anonymous Coward]

The article lists SCO submitting 45,000 pages of evidence and materials--of which I assume is SCO's own work.

According to the info on Groklaw, 33,000 of those pages relate to a claim that SCO abandoned, so, really, there's only 12,000 pages. My guess is that most of those pages are drivel.

Re:Two Words for IBM--Edit Distance

[dirtyhippie]

It's not that simple... Much of the code involved is doing things in well defined ways - let's face it, operating systems do a lot of boring things like copying data from one buffer to another where there isn't much room for creativity. If you give a number of programmers the assignment of writing a function in C that adds two integers together, I'll be damned if you don't get a lot of entries that look like or exactly like this without any copying:

int add(int x, int y) {
    return x + y;
}

Re:Two Words for IBM--Edit Distance

[Dr. Evil]

The case is a trade secret though. If they reveal it, then people will know they have no case, destroying the company.

Re:Two Words for IBM--Edit Distance

[archer, the]

I don't think this should be IBM's responsibility. Imagine if a District Attorney had you arrested for murder, but didn't tell you who you are suspected of axing, nor when or where the crime happened.

Re:Two Words for IBM--Edit Distance

[Narcissus]

I would just like to add: although there's 45,000 pages submitted by SCO, 33,000 pages of that were made 'useless' when SCO dropped one of their hundred-odd points of argument.

That's right: 33,000 pages were submitted regarding just one of those points and now they've dropped that one point anyway!

Re:Two Words for IBM--Edit Distance

[Aaron_bootiemd]

Besides the fact that isn't IBM's job to do this comparison, look at footnote 3 of IBM's reply:

As stated in IBM's opening brief, SCO declined to provide all of its disclosures in an easily searchable, electronic format, complicating IBM's analysis of them. Addendum B corrects and refines the statement of SCO's shortcomings included in IBM's opening papers.

Have fun running your compare program on a piece of paper...

Re:Two Words for IBM--Edit Distance

[ajs]

It should be noted that IBM does have excellent code separation procedures, which are strongly enforced. The problem is that SCO claims that code that IBM felt it had every right to use DIRECTLY, IBM did not actually have every right to use. The history (or part of it) goes back to the purchase of Sequent. They made a mid-range parallel supercomputer, and solved many of the problems which are the cornerstone of modern multi-processor operating systems. That technology was merged into Unix by Sequent. IBM bought them, took the code and used it in AIX and Linux. SCO's only coherent claim is that IBM didn't have the right to open source the code that they bought when they bought Sequent because it was developed FOR Unix, and therefore was a derivative work of Unix. This is a very, very tenuous argument, so SCO also claims that "oh, and there's lots of other stuff too." Until they define "other stuff", however, IBM is left to guess what it is that SCO is asking for them to produce. Lawyers hate guessing, as you might imagine. It's right up there with light jokes on the Bar's list of things not to do in a legal context.

Re:Two Words for IBM--Edit Distance

[pedalman]

But of course, like most Slashdot posters, I'd rather just see the judge turn to SCO and say, "Bullshit, case dismissed..." and proceed to tell them off like Judge Judy giving a deadbeat father a taste of the back o' her hand.

Bailiff, whack his pee-pee.

Cheech & Chong

Re:Two Words for IBM--Edit Distance

[RocketRainbow]

Slightly tangential, but in an academic situation, it's also considered very naughty to resubmit work created for previous assessment for the same reason that it's naughty to use open source software libraries. The assignment is supposed to be created specifically for the situation, and using available work, even if it's not plagiarism, is not the same as creating new work. In my faculty's policy it's clearly stated that we're not to submit work from old assignments without explicit permission from the dean, and the statement we sign on our coversheets states that we have not submitted the work before.

Another good reason to have software compare all incoming assignments to everything on record.

But of course, in a school and in a legal battle, it's one thing to have a computer tell you that two pieces of work are similar, and another to make assumptions as to why. I mean, if one has a particular goal, then there is often an obvious approach and even a correct way to implement that approach. Teachers must get tired of marking the same assignment over and over (even humanities teachers!), and it must be incredibly difficult for a judge to decide whether a bit of software was copied or created in a similar way.

Re:Two Words for IBM--Edit Distance

[networkBoy]

It's not that she re-used the work, but that they were "substantively similar". This is to be expected when your focus of study is one narrow field, of which you are one of only a handful of people looking at, and for which you are already published.

She did nothing wrong, and in fact the portion the computer highlighted were her critiques of legal documents, used as backup. The premise of the papers were entirely different.

Re-submitting a previous work is against the rules, yes. Leveraging your previous work is not.
-nB

Re:Two Words for IBM--Edit Distance

[kfg]

I think you've missed the point. IBM is perfectly aware of how to compare code for potential copying.

What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against.

And here is IBM's point, that SCO has not, in fact, actually identified documents which they claim are infringing, leaving IBM the task of having to, essentially, do SCO's work for them by searching their entire UNIX codebase, all of it, looking for code that infringes.

And that's just not how it works. SCO, in order to make a claim, has to, well, actually make a claim. i.e. IBM did this and this here and here which infringes. IBM only has to answer to the claim and demonstrate its falsity with documents relating to the specifics of the claim; and only the specifics of the claim.

The court does not do any of this. It isn't any of the court's business. The litigants do this and their lawyers present their arguments to the judge and jury and only documents presented at trial have any relevance to actually deciding the case.

SCO is trying to play a liable until proven not liable game, making IBM do the work to produce the evidence against themselves. Against a nonspecific claim. The justice and logical problems involved in this are the very reason the founding fathers adopted the innocent until proven liable way of doing things.

SCO: Somewhere in the known universe IBM possesses an invisible pink something or other. We don't know what that something or other is though, until IBM produces it for us, but as soon as they do we'll claim it's ours.
IBM: We cannot show the entire universe to the court to demonstrate our non possession of an invisible something or other.

SCO is seeking liability on the part of IBM by the above argument.

IBM is simply saying that SCO needs to say exactly what they allege IBM possesses and where they claim it is to be found, along with their evidence supporting the allegation. Then, and only then, can IBM actually defend themselves against the claim by showing the court that SCO's presented evidence is false by presenting evidence of their own.

IBM is more than willing and able to apply the methods you outline, as soon as SCO legitimately identifies what code the test is to be made against.

Certainly IBM can be compelled to produce evidence for SCO's use, that's what this is all about, but you might want to go read the Fourth Amendment for the basic rules on the legal limits of such compulsion.

Think about it. How would you defend yourself against the claim that you had murdered, someone, sometime, we don't know who or when, but you did it?

The fact is you couldn't, unless you could account for your actions over your entire lifetime to a legal certainty.

Criminal and civil rules are different, but in this case they are close enough for hand grenades, as the rules for both are based on the same legal philosophy.

To wit, the accuser must present evidence supporting the claim before the case can even go forward to trial, and the accused need only defend themselves against that evidence. It is the reponsibility of the accuser to identify any evidence that may be held by the accused. The accused need only defend themselves against the claim, not be compeled to twist their own hanging rope.

KFG

Re:Two Words for IBM--Edit Distance

[DrSkwid]

One way to defeat that would be constantly to spell plagiarism wrong.

Re:Two Words for IBM--Edit Distance

[dlt074]

"As a defendant, their job is solely to disprove the other side's case."

wrong. it is the plantiffs job to make/prove their case.

Re:Two Words for IBM--Edit Distance

[sconeu]

In other words,

<STEREOTYPE version="female">
SCO: You know very well what you did, and if you don't, I'm certainly not going to tell you!
</STEREOTYPE>

Re:Two Words for IBM--Edit Distance

[eno2001]

Just what I was going to suggest only you were more detailed. Essentially I wouldn't trust technology to give IBM the right answer here. Technological solutions can rarely properly resolve these kinds of issue in the real world. In the world of engineering (typically controlled situations without human foibles interfereing) it works great. But we're talking about snakes like SCO here. They have an agenda that will use any avenue to get their desired end result and they would likely use whatever it takes to throw off any such processing in their favor.

Re:Two Words for IBM--Edit Distance

[rm69990]

http://www.novell.com/licensing/indemnity/pdf/2_6_ 04_n-sco.pdf

http://www.novell.com/licensing/indemnity/pdf/2_11 _04_n-sco.pdf

Novell retained a lot of rights under the APA, including the rights referenced in this letter. SCO is acting as Novell's agent with regards to SVRX..and Novell does not agree with SCO's position regarding AIX and Dynix. Novell has provided plenty of evidence in the letters linked to here, and earlier ones, as to why SCO is wrong about IBM's responsibilities...and SCO didn't even write back! They don't have a leg to stand on.

Re:Two Words for IBM--Edit Distance

[Chris Burke]

This is why being a programmer has made me even more against having machines in charge. It should be unthinkable that you could use a computer program to detect plagiarism and expell someone without having a human being look into the issue. Computers execute hard-coded algorithms without fail, which does not account for the algorithm itself being flawed, or situations outside the scope of the algorithm (like the "plagiarism" coming from one of the author's previous works).

I was a TA for an operating systems class, and we used automated tools to detect possible plagiarism, but this was only the first step. Human inspection revealed that some was in fact plagiarism, but there were also false positives. We weren't exactly surprised; it was assumed this was possible and that human investigation was necessary. We never considered "rubber stamping" the verdict of the program.

People who trust computers don't understand them. People who use computers to make decisions for them (rather than provide data to inform their own decisions) are lazy. Combine the two, and bad things happen.

Re:Two Words for IBM--Edit Distance

[bfields]

How are systems like this to defend against such issues

By doing exactly what they did--bringing in the original student and other actual people to determine the truth of the charges.

I for one do not trust that every teacher / prof / dean will do the right thing, and would rather rubber stamp a transcript with the expelled mark for plagerism

Of course not. Colleges have procedures for handling this kind of situation. I've never heard of one that's fully automatated, with no chance for the accused to respond.

Re:Two Words for IBM--Edit Distance

[avdp]

Thus the word disprove.

It is plaintiff to make a case, and submit proof for it (evidence).

Then the defendent gets to disprove the case (if there is one to disprove), you know, show how all the evidence is a whole lot of BS, or provide counter-evidence.

Re:Two Words for IBM--Edit Distance

[Lord Bitman]

*cough*.. I really meant "preview"...

What about all the ERROR CHECKING!?
[yes, this is a joke]

int add(int x, int y, int *p_ans) {
    int ans;
 
    ans = x + y;
 
    if (x >= 0) {
        if (y >= 0) && (ans < x || ans < y))
            return -1;
    }
    else if (y < 0 && (ans > x || ans > y))
        return -1;
 
    *p_ans = ans;
    return 0;
}

Now, if IBM "independently invented" that, you'd know something was up! :)

But the root of the SCO case (that is, the lack of it) Is the claim not that "this code was copied from this code", it is the claim of "this code was derived from this code.", and (though I think I'm reading elsewhere in these threads that this may have been dismissed by now) "This code derives from this other code, not because it used to be that other code and over time has changed into this code, but because it is capable of interfacing with this other code. Ignoring the fact that you were able to, with only trivial modification, make it interface with linux code. Btw, we wont tell you which code we're talking about. No, it exists, honest. Go find it for us."

Re:Two Words for IBM--Edit Distance

[JordanL]

The article lists SCO submitting 45,000 pages of evidence and materials ... What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against.

Man... I'd hate to be the inter that got that one...

"Hey, Tim. You've done some really good work lately. We really like where you're going. That's why we're trusting you to scan these ultra-important legal documents. Just let us know when you're done, and keep up the good work."

Re:Two Words for IBM--Edit Distance

[Kadin2048]

Well, I guess they won't be short of things to take phone messages and write grocery lists on, over at IBM...

You'd think they could have given them the documents on CD or something, but I have this feeling that they probably came in a trailer truck. Makes it that much harder to search through them, I suppose.

Re:Two Words for IBM--Edit Distance

[Anonymous Coward]

However, if it follows the male/female discussion pattern:

After much argument...
<STEREOTYPE version="female">
SCO: Here. Here is the code. And I hope you are proud of yourself!
</STEREOTYPE>
<STEREOTYPE version="male">
IBM: Oh yeah, I forgot about that. Can we have sex now?
</STEREOTYPE>

Re:Two Words for IBM--Edit Distance

[Doctor Memory]

Of the 12,000 pages remaining, 10,000 were marked "This page intentionally left blank".

Re:Two Words for IBM--Edit Distance

[supersnail]

Aside from my opinion that SCO should specify what they believe was copied, rather than IBM prove that none of thier zillion lines of AIX and Linux breach copyright.

This Edit Distance would work rather well for "breach of copyright" as what is protected is particular text and not general ideas or methods. If I lokked over your shoulder and saw a neat algorithm which I them implemneted myself this would not violate your copyright unless I did a line for line copy of you code.

Re:Two Words for IBM--Edit Distance

[prefect42]

What you should do (and indeed we do do) is tokenise the file first, so all variable names and the like disappear into the mist before you start comparing them.

Re:Two Words for IBM--Edit Distance

[soft_guy]

It is supposed to be a stereotype, but my wife LITERALLY says this very often.

Re:Two Words for IBM--Edit Distance

[nadamsieee]

It is just me or is slashdot in the habit of pretending sites like Groklaw doesn't exist? Groklaw had the scoop a full day before the Computer Business Review article (which probably used Groklaw as its primary source anyway). I don't think this is some corporate conspiracy against Groklaw; I just wonder if Slashdot is having a hard time coping with the fact that specialized blogs, rss feeds, and aggregators like Thunderbird are doing a much better job of providing what Slashdot provided in the past... So the editors don't post articles that directly link to the 'competition'.

Re:Two Words for IBM--Edit Distance

[vux984]

What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against. The localized areas that score the highest could then be inspected by IBM and give their lawyers ample time to start a defense against points in the documents that will probably be areas of attack for SCO.

First, it is not IBMs job to identify things that might be infringing. It is up to SCO to identify them.

Second, forcing IBM to waste its resources identifying "possible" attacks and defending against them only serves SCO's strategy of wasting IBMs time and money.

SCO has wasted enough of IBMs time and resources with their discovery demands. If SCO didn't discover anything, or won't identify anything, its certainly not IBMs job to do THAT for them too.

Re:Two Words for IBM--Edit Distance

[VultureMN]

And the rest are just take-out menus that Blepp left in his bleppcase when he turned it in.

"Your honor, it is CLEAR and indisputable that IBM illegally ... um ... ordered Cashew Chicken ... umm ... Oh, fuck it. We lose."

Re:Two Words for IBM--Edit Distance

[FellowConspirator]

In fact, it's quite simple... Reduce the two code bases to a lexical parse of the actual code. Compare the structure rather than the arbitrary names of the symbols that compose it. It's quite simple to do.

Simple as it is (IBM even writes several tools to do such a thing and markets them to various niche markets), it wouldn't be helpful in this case. SCO no longer maintains that there is any "SCO" code in Linux. They now claim that certain "technological concepts" related to UNIX were improperly used, but they make the assertion without clear explanation of what they mean by that.

Searching for plagiarism would be cake... some ambiguous intellectual abstraction? Now that's hard!

If you look at the claims SCO started with, and what they are now attempting to argue in court, there's no relation. How the case has played out so long without being thrown out is anyone's guess.

Re:Two Words for IBM--Edit Distance

[nuzak]

She has been brought up for plagerism because her paper too closely resembled another paper turned into the same on-line system to detect cheaters, and a published work on the same subject. Problem is, the paper that was used as a reference was one of her bachelor papers, and the published work was also hers (thus no plagerism). Had the teacher not discussed this with her before talking with the dean, this could have turned out rather badly.

For the teacher, yes. The dean would look at the name on the paper and toss the teacher out of his office for wasting his time. The dean's a little more sensitive about the school getting sued over something that stupid. It sounds like the system worked perfectly in this case. You don't exclude the author's older works in such a search. First, there's no need, since a simple eyeball check will suffice, and second, you want to make sure they're not lifting the whole paper or large parts of it verbatim and passing it off as "new" work.

Re:Two Words for IBM--Edit Distance

[hackstraw]

As a defendant, their job is solely to disprove the other side's case.

Yeah, I love it on a TV court show when the prosecution goes on and on, finishes up, and the defendant's lawyer gets his turn, and just says, "The defense rests".

The best defense is not needing to defend yourself.

Hell, I did it one time when I was under investigation by the law. Serious nasty shit I did not do. They wanted me to come in and take a polygraph and chat and all that. I already told them honestly everything that happened, but they still wanted to play good cop/bad cop on me. I told them that polygraphs are bullshit and that they are merely machines to intimidate people. Anyway, I finally told the cop that if he wanted to talk anymore, talk to my lawyer. He then said, "Well, you know what this means the next time we talk, right?" (I would be under arrest.) I said sure.

He never asked who my lawyer was, and never heard from them again.

NEVER, EVER, put up with police BS. Get a lawyer and shut the hell up.

However, if you find yourself in Gitmo, no such luck with getting a lawyer. Your screwed.

Re:Two Words for IBM--Edit Distance

[Malor]

Slashdot links to Groklaw all the time. I count over 120 mentions of Groklaw in Old Stories.... there's probably tons more, but I got bored looking.

Put down the crack pipe, and step away from the keyboard slowly.

Re:Two Words for IBM--Edit Distance

[sirwired]

Certainly IBM can be compelled to produce evidence for SCO's use, that's what this is all about, but you might want to go read the Fourth Amendment for the basic rules on the legal limits of such compulsion.

Actually, the 4th amendment has to do with criminal, not civil, cases, so it does not apply here. In a civil case, you CAN be forced to provide evidence that is not in your favor, and if you refuse to do so, you WILL lose at least part of your case before it even gets to trial if the evidence you are not providing was relevant to the case and a reasonable thing to ask for.

In a criminal case, the Police can ask you "Where were you at the time of the dastardly deed?" If indeed you are guilty, you are NOT required to reply: "I was standing over the mangled body wiping the blood off of my knife." You have the option simply refusing to answer the question, and the police instead must come up with evidence that you were there.

In a civil case, the other side can ask you before the trial: "Did you break the contract with company X, by not doing Y on Z date?" If you refuse to answer, the judge will simply assume that you did indeed break the contract, and rule against you. A criminal judge is not allowed to do any such thing.

SirWired

Re:Two Words for IBM--Edit Distance

[kfg]

Actually, the 4th amendment has to do with criminal, not civil, cases, so it does not apply here.

I did not say the Fourth Amendment applies. I did say that the rules for criminal and civil cases are different.

In a civil case, you CAN be forced to provide evidence that is not in your favor

Which is something I actually said.

if the evidence you are not providing was relevant to the case and a reasonable thing to ask for.

Which is what SCO has failed to demonstrate.

KFG

Re:Two Words for IBM--Edit Distance

[ajs]

I wasn't saying that SCO did have a leg to stand on, I was just pointing out that the suggestion that IBM could improve their situation by applying clean-room tactics doesn't actually address SCO's legal concerns at all.

Re:Two Words for IBM--Edit Distance

[gstoddart]

Thus the word disprove.

It is plaintiff to make a case, and submit proof for it (evidence).

Then the defendent gets to disprove the case (if there is one to disprove), you know, show how all the evidence is a whole lot of BS, or provide counter-evidence.

But that doesn't mean that a defendant needs to disprove every statement which is unsubstantiated. The defendant needs to refute the claims of the accuser, not disprove them.

But it is absolutely NOT the case that if I accuse you of stealing from me, that YOU need to prove you DIDN'T steal from me -- that whole can't prove a negative thing. I would have to show some supporting evidence to make your claim.

In this case, IBM is saying "Well, they've been saying we gave away their code. They've asked us to provide our code. We've provided what they've asked for, but they keep saying it's not enough and that we need to provide more".

It is not IBMs job to compare every known version of every known product of IBM, Linux, and SCO and see if there is any overlap and wether or not they miay have infringed. It is SCOs job to demonstrate anything to actually SUPPORT the claim that IBM did so. Thus far, IBM has nothing to even need to refute.

IBM is saying that they're tired of undefined, non-specific, and unsubstantiated claims, and that SCO needs to put up or shut up -- instead of trying to put the burden on IBM to either establish SCOs case for them, or definitevely prove they never did anything wrong.

IBM most assuredly doesn't need to prove they didn't steal SCOs code. All they have to demonstrate is that SCO has yet to give any evidence in support of the theory that they DID steal code.

You seem to be indicating that IBM must prove their innocence independant of SCOs burden of demonstrating any wrong-doing. That, is entirely wrong.

Re:Two Words for IBM--Edit Distance

[Rorgg]

With the tags and everything? Cool!

Re:Two Words for IBM--Edit Distance

[AstrumPreliator]

I don't recall stating there was no human interaction involved. In fact the program merely red flags the program, human interaction is required by mandate of the university. If any university does allow fully automated suspensions from an anti-cheating system then I would take it up with the Dean and board as that's a violation of student rights. And if you are suspended by one of these programs then appeal your case.

Re:Two Words for IBM--Edit Distance

[Chris Burke]

I don't recall stating there was no human interaction involved.

I don't recall replying to your post, nor do I recall implying that any particular system did not involve human interaction. HAND.

Re:Two Words for IBM--Edit Distance

[bstone]

especially when it only 'shows' infringment in 3 out 201 issues

No, we haven't gotten that far yet. So far only 3 of 201 issues actually "suggest" infringement. Those are the issues where SCO may have actually shown a line of their code and a line of someone else's code, and identified what files/lines they came from.

Since SCO has, in the past, shown "errno.h" which it appears they got from elswhere as part of the alleged "infringement", and has claimed IBM and Sequent patented ideas which they copied into their code as other "infringing" items, it's a bit of a leap to assume that the three remaining items (after throwing out the part they didn't identify at all) actually "show" anything.

What remains is where SCO identified at least a file and some lines from the code. This is a long way from making an assumption that those 3 pieces are actually somehow infringing on something that SCO owns. Remember that SCO still claims to "own UNIX" in their SEC filings and press releases, and still claims that IBM and Sequent patented algorithms are "theirs" because they were taken from AIX and Dynix and put into their code.

All we're asking to have thrown out now are places where SCO has said basically "something in your code infringes on something in our code and we're not telling you where or what it is". IBM is asking for those claims to be thrown out as they aren't specific, don't constitute a vaild legal claim, and therefore can't possibly be defended against. In other words, they aren't even claims of any wrongdoing. I't like going to the cops and saying "Joe stole something from me, I'm not telling you what or when, go put him in jail for it" ... it won't get prosecuted and Joe would have no way to defend himself from such a claim. That claim would just be thrown out.

The remaining claims apperently specify at least enough to identify what is claimed to be stolen. With those, Joe can at least show a receipt for his purchase, show that he picked it up at Sam's garage sale, or whatever. I would guess that whatever is left after throwing out the "unidenified claims" will be fairly trivial for IBM to defend against.

Grocklaw's take

[Simon Brooke]

Grocklaw's take here, and it makes good reading:

"What an extraordinary response to the court's orders. As IBM points out, because SCO fails to "identify with specificity the versions, files and lines of System V, AIX, Dynix and Linux material that IBM is alleged to have misused," as a practical matter, it just isn't possible to evaluate SCO's claims. We're talking about a lot of code. IBM references a Declaration of Todd Shaughnessy, which we don't yet have, which says "there are at least 11 versions, 112,622 files and 23,802,817 lines of System V code potentially implicated by SCO's claims. There are at least 9 versions, 1,079,986 files and 1,216,698,259 lines of AIX code potentially implicated by SCO's claims. There are at least 37 versions of the base operating system, and 472,176 files and 156,757,842 lines of Dynix code potentially implicated by SCO's claims. And there are at least 597 versions, 3,485,859 files and 1,394,381,543 lines of Linux code potentially implicated to SCO's claims." Precisely where in this massive pile of code should IBM start digging?

...

"I feel sure we'll hear more on this topic at the hearing coming up. I have this vague memory that SCO told Magistrate Judge Wells, when she asked them at a recent hearing if they'd found anything of use in those materials, that they had."

SCO actions...

[liliafan]

Since the general opinion seems to be that SCO is simply attempting to cause discord in the unix market, is this really so suprising?

Lets look at the facts here, SCO is filing lawsuits all over the place, being very vague on the specifics of the lawsuit, all of which ties the courts up and drags out the cases. There is a lot of publicity about how *NIX variants may be breaching all these copyrights, IP's, and licenses, which in the long term reduces confidence in *NIX since consumers can't be sure that the product they are investing money in may suddenly get pulled.

IMHO the money M$ has pushed towards SCO is entirely related to this case, by tying these vendors to the courts and reducing consumer confidence people are more likely to buy M$ products rather than face the risk of getting hurt with the outcome of these lawsuits.

I think these cases should all be thrown out, SCO has a fairly damning track record of lawsuits for the sake or lawsuits, regardless of the validity of the claims.

Re:SCO actions...

[JordanL]

Yeah, but based on some actions IBM has taken in positioning with Microsoft, the move may backfire. IBM is one of the only companies that, if they think they will win, will continue to prosecute, even after it becomes more profitable to settle. Some call it altruism... others think its just revenge... the point is, you fuck with IBM and they make an example out of you.

Re:SCO actions...

[stanmann]

Well, you don't last 120+ years as a Technology company without learning some corporate business smarts. IBM knows well when to settle and when to fight, this fight is one in which it would NOT have been cheaper to settle.

SCO being vague in their claims?

[onallama]

In other breaking news, water is wet.

Re:SCO being vague in their claims?

[Anonymous Coward]

Thanks Captain Obvious.

Re:SCO being vague in their claims?

[gorilla_au]

No, Water makes things wet.

Re:SCO being vague in their claims?

[pigs,3different1s]

Hey, that's my joke!

Looks like I'm going to have to get a good copyright lawyer.

All SCO is asking..

[scsirob]

.. is for IBM to figure out where SCO's code is. Is that so much to ask for?

what no groklaw link?

[Suppafly]

How can you have a sco v ibm story and not link to groklaw?

Re:what no groklaw link?

[Lord Bitman]

How can you have a comment complaining about a lack of a link to Groklaw and not link to Groklaw??

Re:what no groklaw link?

[BigCheese]

How can you have a comment complaining about a comments lack of a link to Groklaw and not link to Groklaw??

Better end this now. http://www.groklaw.net/

Re:what no groklaw link?

[Lord Bitman]

you bastard :)

Wow 198 of 201 items without evidence.

[LiquidCoooled]

The other 3 items are now listed here in all their glory:

//

/*

*/

IBM Willfully copied these lines and should burn in hell.

Re:Wow 198 of 201 items without evidence.

[Mr. Underbridge]

You forgot:

{

}

and the smoking gun, YOU CAN'T EXPLAIN THIS AWAY IBM!!!!:

return 1;

Re:Wow 198 of 201 items without evidence.

[castlec]

Correct me if I'm wrong but don't at least older C standards have only /* */ for comments??

Re:Wow 198 of 201 items without evidence.

[Anonymous Coward]

Correction: You're wrong.

Re:Wow 198 of 201 items without evidence.

[(H)elix1]

The other 3 items are now listed here in all their glory: // , /* , and */


That must be valuable SCO IP. As soon as I removed all //, /*, and */ references from the code, and most code will not compile anymore. Fortunately, it would seem my coworkers are not using any of this infringing IP.

Re:Wow 198 of 201 items without evidence.

[miro f]

well there's no case then, this code doesn't appear in linux at all!

Re:Wow 198 of 201 items without evidence.

[soft_guy]

You are correct. Some people use C++ just to get the // style comments and the ability to declare local variables anywhere in the function (not just at the top).

I believe both of these things have been added to the newer C standard (C99?)

Re:Wow 198 of 201 items without evidence.

[Hydroksyde]

Best comment those out then...

Nasty tactics

[clevershark]

The goal of SCO's intentionally vague requests seem to be to essentially consume the defendant's resources. It's more a fishing expedition than a court case, and falls in line with SCO's FUD strategies.

Re:Nasty tactics

[ISoldMyLowIdOnEbay]

Somehow I don't think they'll be consuming IBM's resources, do you?

Re:Nasty tactics

[CRCulver]

The goal of SCO's intentionally vague requests seem to be to essentially consume the defendant's resources.

Seeing the financial state that SCO is in, all of this legal action is simply going to consume it's last resources. After all, SCO isn't actually producing anything, so there's no sure stream of profit, just a few last-minute handouts from other firms to stop it from going under. IBM, on the other hand, is a strong company. Yes, it might not be what it was in the 60s, and it went through some bad times in the early 90s, but in the end it has come out fairly comfortable (see Gerstner's Who Says Elephants Can't Dance? for a fun history of the turnaround). SCO might waste some of IBM's money, but it's still putting up a fight that ultimately it can't win.

Re:Nasty tactics

[Theatetus]

After all, SCO isn't actually producing anything

You forgot their cell-phone spamming multilevel marketing scheme.

Re:Nasty tactics

[slavemowgli]

SCO isn't intent on winning. The way things work is like this: Companies with a vested interest in discrediting Linux, IBM, FOSS etc. (that's Microsoft for you, as well as Sun and maybe others) pump money into SCO to keep the trial alive for as long as possible. For them, it's an investment; pay money to discredit your competitors and gain an edge in the market. The longer the trial takes, the more FUD there is, so they're interested in a long trial. SCO's executives, like McBribe etc., receive money [1] to carry out the whole thing - so they benefit, too, and the longer the trial takes, the more money they receive (so they're interested in dragging out things, too).

That's all there is to it. I'm not sure how many independent shareholders SCO has left; it may well be that there aren't enough to try to get the company back to a normal, respectable business model instead. Right now, SCO is probably just an empty shell of a company, a zombie that's only kept alive by its corporate masters (M$, Sun etc.) to do the dirty work for them.

So the only one who could put a stop to it all is the judge - but that won't happen until there *really* is convincing evidence that SCO is abusing the court system. The judge still has to assume good faith until it's bleedingly obvious what's really going on.

1. Of course, they're not paid in cash or so - they just get lucrative deals for the SCO shares they hold (held), or are otherwise paid through similar channels.

Re:Nasty tactics

[rkhalloran]

>>The longer the trial takes, the more FUD there is...

But the near-instantaneous deconstruction of SCOX's claims in the tech press, Groklaw, etc., has only reduced the available avenues for FUD'g Linux by claiming infringement from UNIX.

You can tell this by MSFT's returning to their "Get the (non)Facts" nonsense, and Monkey-Boy's recent attempt to claim patent problems.

Re:Nasty tactics

[clevershark]

Oh, I'm not saying it's going to work... just that they've foolishly embarked on that road. SCO paid a lot for the sort of technology that Linux distros now provide for free, so they had a choice of admitting that they had made bad investments in the past, or attempt to put the legal blame on others for their own bad decisions.

Their mistake was in going after IBM with the obvious goal of gaining a quick money settlement, which IBM wasn't about to pony up. Yet another bad decision from McBride & the gang. Even Microsoft (which partly funded the legal assault covertly) has evidently been getting tired of SCO's ineffectiveness in spreading FUD about Linux, choosing instead to trumpet their own equally baseless threats (Steve should remember that if it was baseless 18 months ago it's no better now).

Re:Nasty tactics

[g2devi]

> Seeing the financial state that SCO is in, all of this legal action is simply
> going to consume it's last resources.

How much is SCO really spending on the case?

It doesn't take a lot of effort to let IBM does all the work of trying to "prove their innocence" while SCO sits back and says "I'm not satisfied, show me more, it's obvious you're guilty of something but I won't tell you what it is because I'm too lazy to spend any resources to make my case."

It's one of the key reasons for the assumption of "innocense until proven guilty" principle in criminal law. If innocence were easily proved at no cost to privacy or personal freedom or reputation or budget, it would be possible to go on a legal fishing expedition without too many problems.

Re:Nasty tactics

[Ponies_OMG]

SCO paid a lot for the sort of technology that Linux distros now provide for free, so they had a choice of admitting that they had made bad investments in the past, or attempt to put the legal blame on others for their own bad decisions.

No, when Caldera bought the assets from the Santa Cruz Operation they stated that they were more interested in the dealer network than the "technology" that they were buying.

Re:Nasty tactics

[Wdomburg]

About four million last quarter. Lawyers are expensive.

Re:Nasty tactics

[rm69990]

Umm, current SCO paid Santa Cruz about $5 million for their IP in Unix (which isn't really much). The rest was for the reseller channel. According to the SEC documents anyways. That 5 million was probably for the few copyrights Santa Cruz does own (code they wrote themselves seperate from Novell).

Santa Cruz before SCO paid *nothing* for Unix. Santa Cruz assigned Novell several thousand shares in the company, Novell assigned Unix and Unixware to Santa Cruz with Novell retaining ownership of the copyrights, patents and the SVRX royalties. They also retained a share of the Unixware royalties until 2003. And last but not lease, they retained the right to direct Santa Cruz to modify SVRX licenses in any manner Novell saw fit, and to take the action on behalf of Santa Cruz should they ignore Novell's direction. No actual money changed hands at this stage in the game.

SCO claims they paid $150 million for Unix. Bullshit, that $150 million was for royalties between the years of 1995 and 2003 owed to Novell. Completely different thing.

Case dismissed???? NO WAY!

[Anonymous Coward]

This is one case that needs to be taken to the end by IBM, putting SCO in the grave and establishing base of case law to protect linux in the future. Stopping now would not be a good idea. And besides that, it's not IBM's job to find with specifity what code SCO accuses them of infringing. At this point it would seem that SCO can not find anything of the sort. After all of this time (3 years?) the hot air in SCO is blowing out there asses as they wined down like a deflated balloon.

Re:Case dismissed???? NO WAY!

[Anonymous Coward]

Only someone like Darl would mod this as a troll.

IBM's stance

[malikvlc]

What I find really enjoyable is the more-aggressive stance IBM's lawyers have taken in recent filings.

Not trying to call them pansies for their actions in the past, and clearly they understand the US court system far better than I ever hope to; but I know I'm not the only one that has been frustrated by all the shenanigans that SCO's lawyers and management have been allowed to pull since this thing started three freekin years ago.

But IBM hasn't pulled any punches lately, going for the jugular with this reply memo and its requests for discovery (asking for details in SCO's relationship with Baystar is gonna reveal beaucoup scummage, imho).

Anyone have a deathwatch-type clock running for SCO?

Re:IBM's stance

[LWATCDR]

Actually IBMs lawyers tactics have been simple, effective, and brilliant.
They knew SCO didn't have a case so step one was to cooperate with the judge and be as easy to work with as possible. This puts them into the Judge's good graces early. They didn't need to play hard ball from the start so they built up good will while SCO built up bad will.
Step two. Now that the Judge is good and ticked at SCO and happy with IBM DROP THE HAMMER. IBM can now so their anger at SCO for all hoops that they tried to put IBM through and the Judge is now on IBMs side. The Judge will now actually be glad to see IBM take charge.
IBM turned the David vs Goliath battle into a battle between a spoiled brat of child and a wise old man.

Re:IBM's stance

[Elfich47]

IT isn't just that the judge is 'happy' with IBM. IBM's case is very carefully rooted in case law and the evidence produced. So when IBM decides to 'put the hammer down' it has someplace to hang its hat while it does it.

Re:IBM's stance

[canfirman]

Anyone have a deathwatch-type clock running for SCO?

Good luck. This has been going on for 3 years. I don't think this will end anytime soon. SCO will still find a way to delay/bog down the trial. I ultimately believe SCO will go down in flames. I just don't think it'll be as soon as we think.

Re:IBM's stance

[greg_barton]

...I know I'm not the only one that has been frustrated by all the shenanigans that SCO's lawyers and management have been allowed to pull...

Have you ever studied Aikido? It's a martial art that stresses defense, and specifically using the attacker's energy against them. In Aikido you let the attacker attack, as hard as they can. Only when they become off balance, often by attacking too hard, do you "help them" to the ground.

In this light the IBM strategy makes perfect sense: let SCO do as much as possible to hang themselves. Then, when they are least balanced (and most confident in their own greatness and your apparent incompetance) you tip them over and help them destroy themselves.

Re:IBM's stance

[Anonymous Coward]

i might not have a death clock but i am going to email them: Dear SCO, You suck! Kind Regards Me

Re:IBM's stance

[malikvlc]

Whoa. Hey, great analogy!

I guess what really sticks in my craw is the ludicrous pump-and-dump that was manufactured out of all SCO's claims (remember when their stock was over $50?). Just a bad thing that the bad-guys in this story earned so much cash.

Re:IBM's stance

[Fulcrum of Evil]

Have you ever studied Aikido? It's a martial art that stresses defense, and specifically using the attacker's energy against them. In Aikido you let the attacker attack, as hard as they can. Only when they become off balance, often by attacking too hard, do you "help them" to the ground.

I was thinking more of hard Aikido (where you occasionally punch the other guy) or Ninpo, where you actively control the space and manipulate the other guy into beating themself down.

Re:IBM's stance

[Anonymous Coward]

True, but there's also Judo, which uses the attacker's mass against them.

Not that this works too well in the field of law, when your massive opponent is perfectly willing to sit on you until you suffocate.

Re:IBM's stance

[colinrichardday]

Wouldn't that be the attacker's momentum, rather than mass?

Re:IBM's stance

[Chris Burke]

In this light the IBM strategy makes perfect sense: let SCO do as much as possible to hang themselves.

The Judge's behavior also makes perfect sense for the same reason. SCO's "we'll have specific evidence of actual infringement that we can give to the court as soon as IBM finds it for us" methodology can't have passed by the judge. Rather than do what we all wish and clobber these guys immediately, the Judge is giving them every leniency imaginable so that when the innevitable judicial beatdown occurs there is absolutely no basis for an appeal.

And it truly is amazing how much they've gotten away with. They have been repeatedly asked to give "with specificity" information about what code they are claiming has actually been misused, and they have repeatedly failed to do so. They've done complety 180s on their claims (copyright! trade secret! contract violation!) but never given an example of what precisely they believe IBM to have done. You know Judge Judy wouldn't put up with that crap.

Re:IBM's stance

[surprise_audit]

Step 3: Profit!!

Sorry, just had to do that...

Re:IBM's stance

[mink]

I dislike The Sco Group for a number of reasons including this legal farce.

When did the stock hit $50 due to claims in relation to this case? I remember it hitting $26 or so , but then it dropped and I dont remember it going higher.

The only time I remember SCO stock getting to $50 was during the tech bubble and back then if I remember correctly wasnt it still The The Santa Cruz Operation?

IBM's stance

[Anonymous Coward]

the SCO sucks as much as mr. Slooby.

Bad Faith For Dummies

[rewinn]

"....SCO tells the court that it has provided 'color-coded illustrations', 'line-by-line source code comparisons' and 'over 45,000 pages of supporting materials' ...
... 33,000 of those pages concern item 294, which SCO abandons in its opposition brief ....
....while the Final Disclosures include color-coded illustrations and line-by-line source comparisons, they do not do so with regard to any of the 198 items at issue."

I don't want to be "piling on" but if IBM is correct in its analysis of SCO's, it would seem that SCO is writing the book on how to look like they are acting in bad faith.

Do they really think IBM would not notice and point out to the judge these glaring gaps?

Re:Bad Faith For Dummies

[k12linux]

Do they really think IBM would not notice and point out to the judge these glaring gaps?

I think that's probably irrelivant. It wouldn't be if your goal was to win. If, however, your goal is just to get rich and maintain stock prices then it doesn't matter. The only important thing to SCO management in that case is that you managed to keep a case going for three years without showing a shred of real evidence.

In the mean time, more and more of McBride's stock options are vested and free to be sold. He's getting paid big bucks for salary and bonuses. Stock prices hover about 4.5x higher than they were when this whole thing started. A bunch of people who owned stock when it was below $1/share made a killing when it hit around $20/share.

Re - your sig

[onkelonkel]

Only a Sith deals in absolutes - Obi Wan Kenobi

Indictment of the US "Justice" system

[Mostly a lurker]

It is now three years since The SCO Group (then called Caldera) first initiated a baseless lawsuit against IBM. In that time, they have produced no credible evidence. They have, however, spread all kinds of lies aimed at damaging Linux in the marketplace, hiking their stock price and trying to press IBM into a settlement as cheaper than dealing with absurd discovery demands (mostly granted).

How can it be possible to put a corporation to tens of millions of dollars of direct legal costs and hard to estimate indirect damages without ever needing to demonstrate any evidence of a case to answer? Judge Kimball, himself, stated in his decision on summary judgment (over 18 months after the case was originally initiated) that it was "astonishing" that SCO had provided no evidence, in spite of all their public pronouncements, but then said it was premature to render a decision because SCO might still be able to find some evidence somewhere of some wrongdoing through the discovery process. This has been explained as necessary to avoid the risk of SCO later making a successful appeal.

It seems to me that the US legal system is designed to make money for lawyers and the interests of the parties themselves is purely secondary. I fear comparison with the 19th century British system lampooned so sucessfully by Dicken's Bleak House is not kind to the current US legal system.

Re:Indictment of the US "Justice" system

[doublem]

It seems to me that the US legal system is designed to make money for lawyers and the interests of the parties themselves is purely secondary.

Congratulations!

You have successfully introduced the hammer to the head of the nail with sufficient velocity.

You have demonstrated a keen and piercing insight into the U S Legal system that depressingly few Americans posses.

Re:Indictment of the US "Justice" system

[walt-sjc]

It's very clear what IBM's strategy is. Make sure there is absolutely no possible grounds for appeal, and then go after SCO for lawyers fees which will be more than their net worth. They may even go after the corporate officers personally, who have been profiting from this insane lawsuit.

Re:Indictment of the US "Justice" system

[schon]

Make sure there is absolutely no possible grounds for appeal, and then go after SCO for lawyers fees which will be more than their net worth.

No, SCOX will be dead by the time IBM's counterclaims are heard. The Lanham act claims are a slam-dunk, and they are worth more money than SCOX has had in the past few years.

They may even go after the corporate officers personally, who have been profiting from this insane lawsuit.

Not to mention BSF - who have a clause in their contract stating that they get a large slice of any buyout.

IBM's strategy is simple: burn SCOX to the ground, and salt the earth, to prevent another failed company from trying the same thing.

Re:Indictment of the US "Justice" system

[ShawnDoc]

Most politicians are lawyers. Hence lawyers write the laws. Most judges are former laywers. Hence lawyers interpret and enforce the laws. Most lawyers are paid by the hour. So basically since lawyers run the show, they're able to set things up in such a manner as to make themselves the most money at the cost of everyone else. They've also made sure its nearly impossible for anyone to go to court without a lawyer.

Re:Indictment of the US "Justice" system

[nuzak]

> hiking their stock price

You seen their stock price? I spy with my little eye, a camel's hump. Granted they must have made some pretty decent bucks off that hump. The SEC hasn't swooped in like the wrath of god because a) they're such a piss-ant low-volume little operation that there's bigger fish to fry, and b) most all of the sales from insiders were planned. Not illegal under trading rules, though as corporate governance goes, it's probably malfeasance.

When SCOX finally folds, the shareholder lawsuits will probably do McBride and company in, though no doubt they'll still have more money than I'll ever make in my lifetime. I long ago stopped letting injustices like these raise my blood pressure, and I'll just enjoy the shadenfreude at knowing how they'll perceive their own fall as a crushing disaster.

Re:Indictment of the US "Justice" system

[hackstraw]

It is now three years since The SCO Group (then called Caldera) first initiated a baseless lawsuit against IBM. In that time, they have produced no credible evidence. They have, however, spread all kinds of lies aimed at damaging Linux in the marketplace, hiking their stock price and trying to press IBM into a settlement as cheaper than dealing with absurd discovery demands (mostly granted).

How can it be possible to put a corporation to tens of millions of dollars of direct legal costs and hard to estimate indirect damages without ever needing to demonstrate any evidence of a case to answer? Judge Kimball, himself, stated in his decision on summary judgment (over 18 months after the case was originally initiated) that it was "astonishing" that SCO had provided no evidence, in spite of all their public pronouncements, but then said it was premature to render a decision because SCO might still be able to find some evidence somewhere of some wrongdoing through the discovery process.

IBM is just as much to blame.

This thing is ridiculous, and if it were me being baselessly sued by SCO, I would ignore them, and go on with my business.

This whole thing is completely parallel to someone suing me for stealing a TV out of their unlocked house and returning it with nobody seeing me do it and no physical evidence I was ever in the house.

I'm being a conspiracy theorist here, but what if IBMs lawyers got together with SCOs lawyers before all this took place, and said, "Hey, wanna make some money doing nothing for a few years? Its big bucks we can play with. Wanna just see how long we can milk this? Hey, we can even put a gentleman's side bet on the thing. I bet we can stretch this out for 7 years."

Re:Indictment of the US "Justice" system

[k8to]

If you were reading Groklaw, this would be clear already.

In a civil suit for redress of this nature, there are not appeals. I do not know the full details of when appeals are relevant and not, but they are not in this case.

As for going after corporate officers, I agree that they may be exposed to such, but that would hinge on demonstrating that their actions were designed to inflate the stock price temporarily, which involves intention, which is not easy. Normally if such information were to become available it would be stockholders or the SEC who would be plaintiffs in such suits, depending upon the nature of the offenses. I do not really see that IBM would have the grounds to sue in those particular matters.

IBM _has_ started to do discovery into the realm of the funding money trail for this whole fishing expidition. I don't know how much will be found there, but it's quite possible that the countersuit may become a matter of anticompetitive behavior by a company with a monopoly situation, with SCO acting as a very willing accomplice in this duplicity. That would certainly be a tasty outcome indeed.

Re:Indictment of the US "Justice" system

[zippthorne]

I think there might still be some question about whether this was intentional or just a natural consequence of the prevailing conditions.

Either way, it makes a good argument for creating barriers to lawyers entering politics.

Re:Indictment of the US "Justice" system

[rm69990]

Ummm...you do realize that you can't ignore someone sueing you right? Outside of the courtroom, IBM HAS ignored SCO all of this time. IBM has to, under the law, finish the lawsuit. IBM is trying to end it ASAP now. IBM has already made an attempt, back in 04, to finish this case for good, via summary judgement. They have indicated they are going to do so again.

Re:Indictment of the US "Justice" system

[TheSkyIsPurple]

Um, no.

IBM doesn't want a default judgement entered... so it can't ignore it.

Re:Re - your sig

[malikvlc]

Heh - yeah. I've never understood that 'absolutes' line, since there was never anyone as uptight as a Jedi in Lucas' world.

Tactics backfiring...

[rkhalloran]

>>The goal of SCO's intentionally vague requests seem to be to essentially consume the defendant's resources.

The goal of SCOX's original filing was to annoy IBM enough to get a quick pay-off or buy-out to silence them, since they knew their business was sliding steeply downhill.

What they got instead was a "millions for defense, not one cent for tribute" response, that they now have to make their case against.

As well as a countersuit, and a suit from Red Hat claiming Lanham Act offenses, and from Novell claiming the copyrights didn't transfer with the sale, etc.

Given the relative sizes of the companies, and the utter lack of grounds for their case, SCOX's only hope at this point is postponing the date of execution.

Re:Tactics backfiring...

[sconeu]

Actually SCOX sued Novell, claiming Slander of Title, when Novell said that SCOX didn't own the copyrights.

Herculean?

[BigGar']

Herculean implies that the request is possible yet requires a tremendous amount of effort.

Perhaps Sisyphean: "Of or relating to an endless and ineffective task." is more appropriate.

Huh?

[Dachannien]

Since only SCO knows what its claims are, requiring such an exercise of IBM would be as senseless and unfair as it would be Herculean.

Wait a second.... who ever said that SCO knows what its claims are?

Re:Huh?

[Bemopolis]

In other news, SCO sues Netflix for copying their business plan of rolling the lawsuit dice...

Bemopolis

Re:Huh?

[x2A]

"who ever said that SCO knows what its claims are?"

SCO did!

Oh wait... I'm an idiot huh :-/

What's left?

[Anonymous Coward]

Apparently if the judge accepts the motion, the only
case SCO has left is over someone at IBM calling Darl a poo poo head.

Re:What's left?

[dwiget]

Well, I think more than one person at IBM called SCOX a "poo poo head".

But the use of very derogatory "bunch of fscking 'tars" is what really ruffled SCOX's panties.

Innocent until proven guilty.

[Andr0s]

Well, I really don't understand what's all the din and noise about.

Innocent until proven guilty is one of staples of US justice system. You can't walk into the court and say 'My neighbor stole something from me' and then leave it to the defendant to prove that everything in his appartment was actually purchased and owned by him, not you. You kinda need to say 'My neighbor stole my TV. Here's the warranty for the said TV I bought, with my name on it, and with serial of TV that's now on my neighbor's shelf.' Admittedly, the above example is vastly simplified, yet I think it would apply just fine to any copyright / patent infringement lawsuit. You can't just say you own patents to 'some of the code' in someone else's software, and then expect them to prove they own all the code - you have to specify which of the code in defendant's software is, allegedly, protected under the patents you hold.

No proof, no case.

Re:Innocent until proven guilty.

[faedle]

"Innocent until proven guilty" may, in fact, be a staple of the US criminal justice system, but it does not, in fact, have anything to do with contract and tort.

This fact is (or at least, should be) basic high-school civics stuff, not something you need a JD for, people. Get it right.

Re:Innocent until proven guilty.

[Andr0s]

In its basic form, 'Innocent until proven guilty' might apply only to criminal cases... but nowhere in legal world is it acceptable for prosecutor to accuse the (potential) defendant of crime without providing any evidence to support the accusation, and then expect defendant to be found guilty unless he provides evidence to his innocence.

My point is, to establish guilt, you need evidence to support the accusation. No evidence, no case. That's really an old one. Defendant isn't supposed to provide evidence to defend from unsupported accusations - if they were, that'd become ideal means of industrial espionage.

Software company A: "Company B's source code contains code we have patent on."
Software company B: "No it doesn't!"
Software company A: "Show us your source code to prove it! (And so that we can snoop around your proprietary, classified, patented data)."

Two words: Nuh-nuh.

Re:Innocent until proven guilty.

[Lord Bitman]

but Government schools attempt to instill in the student mind that we have a reasonable and good justice system, so of course things will get left out. :)

Re:Innocent until proven guilty.

[mark-t]

Innocent until proven guilty is one of staples of US justice system.

Tell that to the RIAA.

Isn't it one of their policies to sue people without any real basis because most people will simply settle rather than pay large legal fees?

Re:Innocent until proven guilty.

[faedle]

SCO's claims have been, and remain, far more complicated than that.

SCO's claim is not necessarily that IBM stole code that they have a patent on. SCO's claim revolves around a contract that SCO and IBM have, and that IBM breached that contract by submitting code IBM wrote to Linux, and that IBM was contractually bound by SCO to not do that. SCO is not claiming (at least, from what I read) that IBM didn't write the code, just that IBM did not have the right to release the code to a third party without SCO's "approval" or licensing.

Yes, I agree SCO is being a bunch of ninnys, and I think that this is the crux of this motion by IBM.

That being said, this case isn't as simple as you make it out to be. SCO is saying, in essence, that "IBM violated our contract by submitting code that [contractually] we own to Linux". Part of SCO's "evidence" of this wrongdoing is the contract itself: what does the contract say? What are the terms? What constitutes "submitting" and "violation", in the framework of the contract?

Because this is not "simple common law" we're talking about here, it requires a certain amount of arbitration.

The system is working. I have no doubt that when this is all said and done, not only will IBM be victorious, but it will resolve once and for all the "legal questions" involving Linux and Open Source software generically.

This is partially why I don't believe there is any real Microsoft-SCO conspiracy.. because the last thing Microsoft really wants is a clearly defined court case that resolves the IP issues involved with Linux.. and for that matter, with the whole AT&T/BSD "who really owns UNIX" issue entirely.

SCO's initial claim may seem preposterous to us in the Open Source "community", but outside of our knowledge of the way things work, things are a bit murky. By the time this is done, the waters will be clear.. trust me. IBM wouldn't be fighting it if it wouldn't.

Re:Innocent until proven guilty.

[Elfich47]

SCO also got a law firm that specializes in dragging things out so the other side will want to come to the table and settle. They just throw delay and delay at you until you throw your hands up in the air and give them money so they go away. They just didn't factor on the idea that IBM does not settle when the issue at hand threatens their (long term) business model.

Once you keep in mind that the law firm SCO hired (BSF) is there to wear people down and force them to settle out of court, all of their tactics make sense. IBM on the other hand has been playing a very clean, very professional game and has been methodically boxing off SCO's avenues of attack over time. I beleive the issue at hand as to how the two sides are conducting their suits comes down to this: SCO is trying to chisel some money out of IBM. IBM is out to win.

Re:Innocent until proven guilty.

[denobug]

Innocent until proven guilty is one of staples of US justice system.

That only applys to Criminal Court. In fact, in Civil Court it only takes reasonal suspision to be liable and thus lose the case. Take OJ simpson's case for example. He was found not guilty in criminal court while found guilty in civil court and have to pay to his wife's family.

Re:Innocent until proven guilty.

[schon]

SCO's claims have been, and remain, far more complicated than that.

Bullshit.

SCOX has yet, to this day, refused to state what their claims are.

That is what IBM is saying here: SCOX was orderd (three times) to specify what their claims are. To date, they haven't. That's the problem.

Re:Innocent until proven guilty.

[DavidLJ]

Faedle's version of things has already been put in the public domain, by Mark Twain, I think it was:

"George Washington slept here. There's the bed that proves it."

Re:Innocent until proven guilty.

[R2.0]

Another item is that David Boise (sp), the "B" in BSF, left the law firm representing IBM, which left some hard feelings. Although I can't imagine IBM's law firm giving less than 100% to the effort, this might be providing a little extra motivation to kick Boise's ass.

Re:Innocent until proven guilty.

[moexu]

This is partially why I don't believe there is any real Microsoft-SCO conspiracy.. because the last thing Microsoft really wants is a clearly defined court case that resolves the IP issues involved with Linux.

I agree with you overall, but I do take issue with this point. In the beginning it wasn't certain that there would be a clearly defined court case. Most Linux supporters felt that since development was done in the open it would be difficult if not impossible to get improper code accepted into the Linux kernel. However, there were those who felt that since there wasn't a central authority vetting the code it would be easy for someone to misappropriate code and have it accepted.

Do you remember Ken Brown of AdTI? He was planning to publish a book about how Linus plagarized Minix to write Linux. Unfortunately, some facts got in his way. A researcher Brown hired to run code comparisons between an early Linux kernel and Minix found no substantial similarities. Most interesting, when the researcher told Brown of his findings Brown argued with him that he was wrong, presumably expecting to find "gobs of copied source code".

Another interesting connection is that intellectual property issues are frequently presented as a reason to go with Windows on Microsoft's Get the Facts website. For example, Radio Shack's case study mentions reducing "exposure to the risk of intellectual property infringement claims" as a reason to go with Windows over Linux. Before SCO starting suing their customers for using Linux, who was worried about a lawsuit over their choice of operating system?

I think Microsoft is responsible to some degree for SCO's suit. I think someone didn't fully understand the way Linux development happens and badly miscalculated the effect of the lawsuit on IBM. If IBM had quickly settled then there would be plenty of room for "no smoke without fire" FUD about the risk of improper code in Linux. Because the suit has gone on for so long and there have been so many people with enough stake in vindicating Linux there have been multiple opportunities for demonstrating that there is no infringing code.

Re:Innocent until proven guilty.

[sjames]

The system is working.

Only for sufficiently small values of working. As far as I can tell, SCO has done little but compell IBM to spend millions of dollars over several years. The system SHOULD have a way to tell such a plaintiff to "put up or shut up" early in the game, but it doesn't.

In the process of spewing truly monumental amounts of crap, SCO has managed to implicate themselves in copyright infringement themselves including continuing to offer Linux under a licence they claimed to be 'unconstitutional' (huh?) and infringing on their copyrights.

The system has allowed this to drag on for YEARS.

It's noteworthy that SCO DID present source code at one time that it claimed was infringing. Each and every bit of it was documented as being someone else's original work or being legitimately borrowed from someone other than SCO. SCO promptly changed just about everything in their claims.

For the system to be working, it would need to call SCO to task and award all legal costs to IBM. It's one thing to sue and be wrong, it's quite another to sue without any sane reason to even believe you are right.

Re:Innocent until proven guilty.

[kimvette]

just to add. . .

Radio Shack's case study [microsoft.com] mentions reducing "exposure to the risk of intellectual property infringement claims" as a reason to go with Windows over Linux.

Pardon me, but Mr. Microsoft, sir, I seem to recall Microsoft's having to change MSIE in order to conform with others' IP, and that web developers may have to institute changes in their sites. Is this true? If so, how are customers indemnified, really? How is your closed-source proprietary system superior to open source solutions such as (GNU/)Linux in that regard, Mr. Gates?

Re:Innocent until proven guilty.

[thinkliberty]

SCO's claim is not necessarily that IBM stole code that they have a patent on. SCO's claim revolves around a contract that SCO and IBM have

Yes. And this lets SCO charge 699 for the Linux kernel that they distribute in binary form only? That you cannot have or distribute the source under the terms of the GPL.

Part of SCO's "evidence" of this wrongdoing is the contract itself: what does the contract say? What are the terms? What constitutes "submitting" and "violation", in the framework of the contract?

It seems like SCO does not understand the GPL. ;) Becuase that is the term SCO released all of the IBM's "they violated our contract so you all owe us $699.00 dollars to use Linux" code under.

Re:Innocent until proven guilty.

[rm69990]

AT&T sent out a letter almost 20 years ago saying something completely contrary to what SCO is claiming, that they had no intention of claiming control over others' work, unless it was combined with their work. SCO's theory is that since AIX was once combined with SVRX (and still is) that none of the AIX code, even if not including SVRX code, can be contributed to Linux. It is plainly contrary to what the agreements actually say (check on Groklaw, all of them are there), to what AT&T said, to what Novell said and to what Santa Cruz said. Then add one these letters for good measure.

http://www.novell.com/licensing/indemnity/pdf/10_7 _03_n-sco.pdf
http://www.novell.com/licensing/indemnity/pdf/10_1 0_03_n-sco_ibm.pdf
http://www.novell.com/licensing/indemnity/pdf/2_6_ 04_n-sco.pdf
http://www.novell.com/licensing/indemnity/pdf/2_11 _04_n-sco.pdf

SCO's reading of the publically available documents makes absolutely no sense.

Time for a Name Change

[Quasar Sera]

Society for Creative Obfuscation, anyone?

Trial delays for fun and profit.

[khasim]

Do they really think IBM would not notice and point out to the judge these glaring gaps?

That part doesn't matter.

SCO isn't in this to win a judgement against IBM.

SCO is in this because:
#1. Pump-n-dump SCO stock. Almost every SCO executive has dumped all of their SCO stock.

#2. Make money from ...someone... who will pay to fund SCO's legal battle ... and possibly slow the Linux migration rate.

#3. McBride gets more media attention.

When you look at that way, every one of their steps makes sense.

Re:Trial delays for fun and profit.

[Elfich47]

If I remember correctly: BSF was paid partially in SCO shares. That would make BSF interested in the financiall well being of the company. If they are not acting in the best interest of the company (like a pump and dump scam) there could be some trouble for that law firm. Let alone the possible corporate veil piercing etc etc.

Re:Trial delays for fun and profit.

[rewinn]

>If I remember correctly: BSF was paid partially in SCO shares. That would make BSF interested in the financiall well being of the company. If they are not acting in the best interest of the company (like a pump and dump scam) there could be some trouble for that law firm. Let alone the possible corporate veil piercing

Hmmmmm.....

If so, a shareholder lawsuit, with recourse against the lawfirm, may be a logical step.

I wonder who's selling malpractice insurance to that law firm?

The propagandists in civics class

[Perp Atuitie]

always let us think that accusations had to have content -- you couldn't just point to some guy and get him arrested because you feel sure he's sending death rays in your direction. So I'm still unable to comprehend how this case lasted more than five minutes in any court. Slow learner though I am, I finally see the opportunities this precedent presents for the good entrepruneurial American: I'll be filing a case against MBNA alleging that they stole my bazillion-buck payments, which are unspecified as to amount, time, date, and any supporting evidence other than the fact that they do process payments. They either have to prove that they didn't do it or pay. I promise to share my winnings with /. so they can buy a bunch of new Macs running XP. 'Course there's one small flaw in my business plan: I don't have bevies of hack shysters willing to bleed me by fighting non-cases through the courts year after insane year. Shit.

Re:The propagandists in civics class

[k12linux]

I don't have bevies of hack shysters willing to bleed me by fighting non-cases through the courts year after insane year.

Correction; there is no shortage of lawyers who would be willing to bleed you dry for a non-case. Having enough money to pay them beyond the first day may be an issue though.

Also missing from your plan was the fact that you really want to be a publicly traded company and own a bunch of the stock. That way when your stocks skyrocket your plan to sell off your personal stock portfolio will net you a nice profit. (You also need to completely coincidentally submit a plan to sell your stock BEFORE you decide to sue. IOW, no paper trail about the lawsuit until AFTER you issue your stock sales intention paperwork.)

Does anyone know how much Daryl McBride has made on his stock sales?

SC O's little problem

[Elfich47]

If it turns out that SCO had nothing though, IBM may be able to pierce the corporate veil and go after the board of directors, the shareholders and anybody who backed them. If it turns out that some other large corporation put SCO up to this (financially or otherwise) they could be in alot of trouble (let alone McBride et. al.).

Re:SC O's little problem

[Anonymous Coward]

If the case is ruled frivolous, IBM may also be able to go after BS&F (SCOX's lawyers).

Re:SC O's little problem

[devilspgd]

"Anyone who backed them" may not be as easy as it looks. If Microsoft "bought" software licenses from SCO, that may not qualify as "backing" SCO from a legal standpoint.

As long as any product (other then FUD) was transferred, it would be very difficult to prove anything.

In related news...

[Spy der Mann]

Rumour says that SCO has given IBM a reference book to help find the copyrighted material.

Re:Re - your sig

[doublem]

It was Lucas trying to have a character say something that demonstrated the chump finally turning to the dark side.

In other words, don't sweat it, it's just baaaad writing.

Explanation of SCO's actions

[Mateo_LeFou]

This case is such BS. Makes me angry. I think the following points vary between obvious and mostly-true:
-SCO is actually pretty indifferent to how the case (a contract dispute with IBM) comes out.
-This case exists for the sole purpose of making people worry whether there's something dangerous about using or contributing to Linux
-As such, its value is directly proportional to its duration in time, and has nothing to do with the outcome, which will be a dismissal or a summary judgment for the defendant
-This value accrues to SCO, but also to Microsoft, who helped fund the case. Most of the value, in fact, accrues to Microsoft.
-When/if the "infringing code" is ever actually specified, it will be rewritten in days and all this value will evaporate -- assuming any code actually infringes anything.

I think all of the following should be on the table when this thing wraps up:
-Countersuit by IBM & Punitive damages from SCO
-An investigation into Microsoft's role in designing this lawsuit.
-Piercing the corporate veil for those execs who were personally enriched by the stock pump-and-dump.
-Announcement by IBM that they will donate a portion of the damages they are awarded (which should be basically SCO's market capitalization) to more Linux development.

These people are brilliant

[PenguinBoyDave]

Think about it...the lawyers and other talking heads at SCO have managed, for some time now, to keep this company afloat on pure BS alone, and they did it by spoofing the courts, the media, etc. Sure...Tech people saw right past it, but the fact is that they were to do a job...to keep this company alive, and they did it for a long time. This might be the death-blow for them, but hey, they did a hell of a job getting it this far.

Now...let the ship sink. Should have gone down long ago.

Re:These people are brilliant

[wizkid]

No, this won't be the death blow. They get the right for a trial, and nobody is stopping it. IBM is following it through to clear all the IP issues out on Linux (As much is as possible at least, with $M busy shooting (Blanks mostly) at Linux).

The way the courts work, the SCO trolls will be alive until about the middle of next year, which is when the trial will probably be closed out. I don't know for sure, but were still only about 1/3 to 1/2 way through.

When the trial is over SCO will still be alive, until the countersuits hit. Then there won't be enough of sco left to warrant mopping thier slime off the floor.

Re:These people are brilliant

[phoenix.bam!]

SCO's UNIX Rights are where it's at.

Re:These people are brilliant

[kimvette]

It's sad though. I just hope for the tech workers' sake (since they have no hand in the evildoings of SCO) that Novell or IBM (preferably Novell since SCO owes Novell a heap of money for UNIX licensing) acquires SCO's assets and keeps the employees on board.

Why?

  - SCO Unix isn't that bad of a product. Perhaps a bit overrated, but. . .
  - Caldera Linux (later SCO OpenLinux) was great when it came out and they contributed a lot back to the Linux kernel and various associated peripheral projects. Certainly at least some of those developers are still on board

Now for the exectutives, board of directors, and their legal staff? I'd love to see them rot in prison, and their assets siezed and sold off to pay for their prison stay (so we taxpayers don't have to pay).

Sisyphusean.

[Fanboy Troy]

A Sisyphusean task is probably what you are looking for...

Sinner condemned in Tartarus to an eternity of rolling a boulder uphill then watching it roll back down again.

Re:Sisyphusean.

[qbwiz]

Considering that Sisyphusean isn't a real word, but Sisyphean is, I think he may have got the spelling right.

(links go to answers.com, but the OED agrees)

Re:Sisyphusean.

[Fanboy Troy]

:) I completely overlooked the last line of his post. I thought it was part of the sig and skipped it... I must have been lacking caffeine at that time. Sorry for posting something that looked like a spelling nazi to GP, I was actually aiming to say the same thing he did! By the way, my spelling is terrible...

Re:Sisyphusean.

[Anonymous Coward]

That's ok. I just like to have people respond to my posts. BigGar'

Re:Sisyphusean.

[greekthegreek7]

Maybe you didn't needed cofee,you needed something to eat... Fanboy Troei!!!

Re:Sisyphusean.

[greekthegreek7]

why don't you respond to my comment? Probably you are eating something again... FaTboy Troy...

Re:How obscenely over-simplified!

[Lord Bitman]

What about all the ERROR CHECKING!?
[yes, this is a joke]

int add(int x, int y, int *p_ans) {
        int ans;

        ans = x + y;

        if (x >= 0) {
                if (y >= 0) && (ans x || ans > y))
                return -1;

        *p_ans = ans;
        return 0;
}

Now, if IBM "independently invented" that, you'd know something was up! :)

But the root of the SCO case (that is, the lack of it) Is the claim not that "this code was copied from this code", it is the claim of "this code was derived from this code.", and (though I think I'm reading elsewhere in these threads that this may have been dismissed by now) "This code derives from this other code, not because it used to be that other code and over time has changed into this code, but because it is capable of interfacing with this other code. Ignoring the fact that you were able to, with only trivial modification, make it interface with linux code. Btw, we wont tell you which code we're talking about. No, it exists, honest. Go find it for us."

Re:Re - your sig

[VGPowerlord]

How about Absoluts? Can Jedis have alcoholic drinks?

Smoke Crack Often?

[mmell]

There must be others - this one just came to mind.

Only works for Mothers

[DeanFox]

My Mother use to get away with this all the time when I was a kid. I'd come home from school and with a "look" she'd say, I know what happened today at school." After 5 minutes defending myself I'd usually find myself grounded. It took years before I figured it out.

I doubt this same strategy will work with IBM. SCO says, here's a list of files. You know what you did wrong. Go to the developers, discuss it amongst yourselves and come back with your defense.

It isn't going to work. IBM is all growed up.

-[d]-

Re:Forever Wars

[Doc Ruby]

Moderation -2
    50% Offtopic
    30% Interesting
    20% Flamebait

BaitFlaming TrollMods say "Offtopic". I say the topic is the endless lawyering of total lies into whole industries of destruction.

OT

[nigelo]

>>the ability to declare local variables anywhere in the function (not just at the top).

What is the current thinking on which is the preferred style?

Re:OT

[2old2rockNroll]

What is the current thinking on which is the preferred style?

Trying to start a holy war?

Re:OT

[soft_guy]

Both styles are useful in different situations. // is especially nice for commenting out lines of code.
I like /* */ better for adding actual comments.
I like #if 0 #endif for commenting out longer blocks of code.

It's the Ari Fleischer defense...

[frankie]

... or should that be "offense"?

"I think the burden is on those people who think [IBM] didn't have [stolen SCO programs] to tell the world where they are."

Discovery Phase & Burden of Proof

[Phrogman]

IANAL, but surely the burden of determining which code SCO claims has been illegally lifted lies solely upon SCO. This would normally happen in the Discovery phase of a case I believe, and the cost would borne by SCO since they brought the accusation to court. If they are unwilling or unable to determine which code has been compromised, then surely the judge can simply dismiss the case? If I accuse you of harming me in some way but I am unable to produce any evidence to support it, then I don't have a case. Normally the accuser can request that the defendant produce relevant evidence, and in a manner such that it is reviewable electronically (not too difficult with computer code I would expect), but the cost of searching that evidence is not borne by the defendant, just the cost of producing it for review.

Granted its a lot of code, but thats not IBMs problem, its up to SCO to ask for a list of the relevant information, then select those items they want the code produced for, and do a review themselves. At that point I would expect the court to demand that the evidence be brought before the court in human readable format or toss the case out the window - and probably penalize SCO for wasting the court's time and making malicious accusations while remaining unwilling or unable to produce any evidence to support that the case was brought in good faith.

I really don't understand what possible reason has kept this case in court so far.

What's Missing

[RichiP]

It doesn't matter what kind of case you try to bring up. The important thing is that you have good lawyers. Lawyers don't seem to care for justice. They care about law. Given an objective, they will try to bend the law as far as they can to achieve their objective.

Good sig :-)

[ardle]

It's like the last line of your post. And it was!

Novell case...

[rkhalloran]

Agreed SCOX went after Novell, but with slander of title vs. copyright infringement, and prompted Novell to publish letters from SCOX asking could they pretty-pretty-please transfer the copyrights?

When (not if) this one goes Novell's way, it's going to blow a hole in the case against IBM, since how can SCOX be claiming infringement if they don't own the copyrights?

Re:Novell case...

[rm69990]

1) Novell published the letters first, then was sued. Check Groklaw's history/archives. 2) Novell never published the transfer request letters. They published all correspondance AFTER May 2003, but not before, and the requests were made before May. No one is sure why Novell never published those letters. 3) SCO is claiming breach of contract, not copyright infringement. The copyrights are essentially irrelevant in the IBM case. However, whether SCO has standing to sue IBM is another matter (Novell waived numerous SCO rights).

There's another shoe to drop here

[stargazer1sd]

IANAL, but I think IBM is laying the groundwork for getting this declared a frivolous lawsuit. If IBM files such a motion, the judge agrees, SCO and their lawyers become liable for IBM's legal fees and the court's expenses. SCO, Mr. Boies and company could find themselves in for a very rude surprise. The corporate liability shield can be pierced, and especially eggregious conduct can come out of the miscreants' personal net worth. It's rare, but this sure looks like one of those special (in the church lady sense) cases.

Re:There's another shoe to drop here

[rm69990]

It's called "Summary Judgement".

Conversation with lawyers

[dtfinch]

I can imagine it went something like this:
SCO: Here's all the evidence we've found.
Boies: OMG you stupid hacks. This "evidence" is worthless. It's worse than worthless. It'd be better if we gave the judge nothing at all.
So they did.

I'm astonished that. . .

[kimvette]

SCO even has any cash left to continue this frivilous suit. Have they somehow bilked yet more investors out of cash with promises of beating IBM and then Novell in court?

Re:Re - your sig

[zippthorne]

I thought the fact that the statement was blatently self-referencial and had aparantly become dogmatic in jedi culture further enlightened the growing parallels between the jedi council and the sith.

For instance... despite being manipulated by count dooku, the Geonosians actually had a legitimate grevience which went completely unadressed for the remaining film, instead turning them and the separatists into stock villians.

ok, so I didn't say the symbolism was intentional. It's like Lucas was trying to build a house out of straw and accidently built the kitchen to code...

but that's a solution to a different problem

[rakslice]

My favourite saying is relevant here:
100% of people who don't know the difference between correlation and causation EVENTUALLY DIE!

Re:but that's a solution to a different problem

[Anonymous Coward]

As do 100% of the people who do know the difference between correlation and causation.

Herculean? Try Hadean. Or Sisyphean.

[mooncaine]

What's Herculean about an unfair situation? That would be more like the case of Sisyphus, condemned to forever roll a boulder up a hill, only to have it roll back down again, forcing him to start over. Hades sentenced him to this fate.

IBM, then, is claiming that the requirement put before them is an almost Sisyphean task -- one that can't be accomplished. Or maybe you'd say it's a Hadean task, since Hades imposed such an impossible requirement.

Unless Herc got a similar treatment. Did he? I'm familiar with the notion of a "Sisyphean" punishment, but don't recall Herc suffering something like it.

Re:Herculean? Try Hadean. Or Sisyphean.

[frederickroyceperez]

Herakles was involved in a dispute over whether or not he actually completed a task . The issue was over details and decided by the main conspirator , Eurystheus , in the murder of Herakles children by Herakles hand . So his decision was against Herakles I believe because Eurystheus was so frightened by the boar he concluded that it had not actually been brought to him as he had been transported by fear out of the room so had not actually witnessed the event . So I guess he was beside himself , the negotiator against himself and Herakles counting the days till he was freed . Could work

Ultimate conspiracy theory

[pfleming]

What if, after all of this, Darl and Co. are really trying to get all of IBM's code? I mean, IBM is providing code to them to compare to SCO's stuff. Maybe this is just a really very backhanded way of getting to read through all of IBM's code - GPL, proprietary, you name it. If Darl and Co. simply run off or create another company that uses code from IBM or they just use IBM's coding techniques to better and further SCO code and products would anyone really know? Hell, SCO can't show where there is any matching code now maybe they have figured out a plan to use obfuscated IBM code in their own stuff.