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

[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

[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

[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

[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

[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

[Rorgg]

With the tags and everything? Cool!

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.

All SCO is asking..

[scsirob]

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

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.

[(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.

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

[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.

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?

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: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.