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IBM Says SCO Willfully Failed To Detail Evidence

Posted by ryuzaki0 on from the suspiciously-vague dept.

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.'"

48 of 188 comments (clear)

  1. Two Words for IBM--Edit Distance by eldavojohn · · Score: 4, Interesting

    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.

    --
    My work here is dung.
    1. Re:Two Words for IBM--Edit Distance by AstrumPreliator · · Score: 4, Informative

      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 ;).

    2. Re:Two Words for IBM--Edit Distance by DavidTC · · Score: 5, Insightful
      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.'.

      --
      If corporations are people, aren't stockholders guilty of slavery?
    3. Re:Two Words for IBM--Edit Distance by bjpowers39 · · Score: 3, Informative

      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".

    4. Re:Two Words for IBM--Edit Distance by networkBoy · · Score: 4, Interesting

      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

      --
      whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
    5. Re:Two Words for IBM--Edit Distance by Dr.+Evil · · Score: 4, Funny

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

    6. Re:Two Words for IBM--Edit Distance by ajs · · Score: 2, Insightful

      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.

    7. Re:Two Words for IBM--Edit Distance by networkBoy · · Score: 2

      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

      --
      whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
    8. Re:Two Words for IBM--Edit Distance by kfg · · Score: 4, Insightful

      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

    9. Re:Two Words for IBM--Edit Distance by sconeu · · Score: 4, Funny

      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>

      --
      General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
    10. Re:Two Words for IBM--Edit Distance by Chris+Burke · · Score: 3, Interesting

      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.

      --

      The enemies of Democracy are
    11. Re:Two Words for IBM--Edit Distance by avdp · · Score: 2, Informative

      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.

    12. Re:Two Words for IBM--Edit Distance by nadamsieee · · Score: 2, Interesting

      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'.

    13. Re:Two Words for IBM--Edit Distance by vux984 · · Score: 2, Interesting

      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.

    14. Re:Two Words for IBM--Edit Distance by FellowConspirator · · Score: 3, Informative

      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.

    15. Re:Two Words for IBM--Edit Distance by nuzak · · Score: 2, Insightful

      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.

      --
      Done with slashdot, done with nerds, getting a life.
    16. Re:Two Words for IBM--Edit Distance by Rorgg · · Score: 4, Funny

      With the tags and everything? Cool!

  2. Grocklaw's take by Simon+Brooke · · Score: 5, Informative

    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."
    --
    I'm old enough to remember when discussions on Slashdot were well informed.
  3. SCO actions... by liliafan · · Score: 4, Insightful

    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.

    --
    GeekServ Unix Consulting Services (http://www.geekserv.com)
  4. SCO being vague in their claims? by onallama · · Score: 2, Funny

    In other breaking news, water is wet.

  5. All SCO is asking.. by scsirob · · Score: 4, Funny

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

    --
    To Terminate, or not to Terminate, that's the question - SCSIROB
  6. what no groklaw link? by Suppafly · · Score: 2, Insightful

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

    1. Re:what no groklaw link? by Lord+Bitman · · Score: 3, Funny

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

      --
      -- 'The' Lord and Master Bitman On High, Master Of All
    2. Re:what no groklaw link? by BigCheese · · Score: 2, Funny

      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/

      --
      The obscure we see eventually. The completely obvious, it seems, takes longer. - Edward R. Murrow
  7. Wow 198 of 201 items without evidence. by LiquidCoooled · · Score: 5, Funny

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

    //

    /*

    */

    IBM Willfully copied these lines and should burn in hell.

    --
    liqbase :: faster than paper
    1. Re:Wow 198 of 201 items without evidence. by (H)elix1 · · Score: 5, Funny


      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.

      --
      +++ UGUCAUCGUAUUUCU
  8. Nasty tactics by clevershark · · Score: 4, Insightful

    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.

    --

    My sig is too lon

    1. Re:Nasty tactics by CRCulver · · Score: 4, Insightful

      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.

    2. Re:Nasty tactics by Theatetus · · Score: 2, Informative
      After all, SCO isn't actually producing anything

      You forgot their cell-phone spamming multilevel marketing scheme.

      --
      All's true that is mistrusted
  9. Case dismissed???? NO WAY! by Anonymous Coward · · Score: 3, Insightful

    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.

  10. IBM's stance by malikvlc · · Score: 4, Insightful

    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?

    --
    Try not. Do... or do not. There is no try. ~Yoda
    1. Re:IBM's stance by LWATCDR · · Score: 3, Insightful

      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.

      --
      See my blog http://ilovecookes.blogspot.com/ for light hearted technical information.
    2. Re:IBM's stance by greg_barton · · Score: 2, Interesting

      ...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.

    3. Re:IBM's stance by Fulcrum+of+Evil · · Score: 2, Interesting

      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.

      --
      "We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
  11. Bad Faith For Dummies by rewinn · · Score: 2, Insightful

    "....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?

    --
    --- Attorneys Assisting Citizen-Soldiers & Families -
  12. Indictment of the US "Justice" system by Mostly+a+lurker · · Score: 4, Insightful
    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.

  13. Herculean? by BigGar' · · Score: 2, Insightful

    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.

    --


    Shop smart, Shop S-Mart.
  14. Huh? by Dachannien · · Score: 3, Funny

    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?

  15. Innocent until proven guilty. by Andr0s · · Score: 3, Insightful

    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.

    --
    '...computers in the future may have only 1000 vacuum tubes and perhaps weigh 1.5 tons...' Popular Mechanics, 03/49'
    1. Re:Innocent until proven guilty. by faedle · · Score: 3, Interesting

      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.

    2. Re:Innocent until proven guilty. by Elfich47 · · Score: 4, Insightful
      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.

      --
      Architectural plans are like computer source code with a couple of differences: You only compile once.
    3. Re:Innocent until proven guilty. by moexu · · Score: 3, Insightful
      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.

      --
      "Seek first to understand." - Socrates
    4. Re:Innocent until proven guilty. by sjames · · Score: 2, Insightful

      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.

  16. SC O's little problem by Elfich47 · · Score: 2, Insightful

    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.).

    --
    Architectural plans are like computer source code with a couple of differences: You only compile once.
  17. In related news... by Spy+der+Mann · · Score: 3, Funny

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

  18. Explanation of SCO's actions by Mateo_LeFou · · Score: 2, Insightful
    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.

    --
    My turnips listen for the soft cry of your love
  19. These people are brilliant by PenguinBoyDave · · Score: 2, Interesting

    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.

    --
    I'm not a troll, but I play one on Slashdot.
  20. Only works for Mothers by DeanFox · · Score: 2, Funny


    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]-