SCO Accuses IBM of Destruction of Evidence

Udo Schmitz writes "According to an article at Forbes, SCO claims that IBM destroyed evidence by ordering programmers to delete copies of code that could have helped SCO prove its case. SCO's attorney Brent Hatch says that 'one IBM Linux developer has admitted to destroying source code and tests' and that they didn't mention this in public, because it only became relevant now, and that 'the claim was part of a motion SCO filed in March 2006, which has remained sealed'." From the article: "IBM declined to comment, citing a policy of not discussing ongoing litigation. In her sharply worded ruling, Wells criticized SCO's conduct in the case and seemed to indicate she was annoyed with the company. 'I don't know if that's true or not, but that's a question I'm asking myself,' Hatch says. Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case. "

Comments

Hmmm

[Anonymous Coward]

Did they hack my machine to get it removed from there as well?

Riiiiight...

[Stephen H-B]

Pot, I believe you know Kettle?

Oh. Good. Grief.

[Rinzai]

Well, I guess we all knew it was just a matter of time before SCO intro'd the "dog ate my homework" excuse.

Next, I suppose, aliens from Planet Zontar in Zeta Reticuli will have stolen those very same computers from which the Unix and Dynix code was deleted.

Re:Oh. Good. Grief.

[Anonymous Coward]

Next, I suppose, aliens from Planet Zontar in Zeta Reticuli will have stolen those very same computers from which the Unix and Dynix code was deleted.

Yeah, I hate those guys.

Re:Oh. Good. Grief.

[Kadin2048]

He's compensating. Trust me.

Re:Oh. Good. Grief.

[Zontar The Mindless]

Woohoo, time to collect some licencing fees! :)

Darl's book "How to make big money fast"

[kimvette]

1. Buy lots of SCO stock
2. Falsely accuse IBM of giving Linux SCO code - code that SCO themselves released under the GPL in the form of Caldera Linux (later SCO OpenLinux)
3. Dump some of your stock
4. Receive practically every scrap of Linux and AIX documentation, source code, marketing literature, test reports, design docs, etc. that IBM ever produced
5. Dump some SCO stock
6. Realizing that you've been called on your bluff, accuse IBM of destroying alleged "evidence"
7. Dump more SCO stock

(months later, after IBM and Novell are eating SCO's remains)

8. Have fun being Bubba's bitch in federal prison

What happened? Did the stock drop?

[Opportunist]

Did the SCO shares lose value again or why the sudden outcry?

Could be me, but I find it hilarious that SCO accuses another company of smoke-and-mirror tactics.

New company idea!

[MarkByers]

I have a fantastic idea for a new company. I will sue Microsoft for allegedly having Linux code in Windows. Obviously this is going to cost a lot of money so please help by investing in my company. I don't actually have any evidence, but who cares I will just claim they destroyed it! This can't fail! Please donate investments to my Paypal account and if I win you will get a share of the settlement.

Wrong /. Icon!

[c0l0]

Is it just me missing the Monty-Pythonesque foot? :-(

It's actually all a cunning plan...

[miataninja]

Wouldn't surprise me if it eventually turns out that the lawfirm handling SCO's lawsuit are actually undercover Linux-zealots with a cunning plan who managed to convince SCO that they could actually win the case, then proceeded to produce a MASSIVE amount of billable man-hours which they from the start knew would eventually lead to SCO filing for bankruptcy. When the lawsuit is over, all proceeds from the lawfirm will be donated to promote Linux. Hmm, I'd actually like that!

Re:It's actually all a cunning plan...

[kfg]

When the lawsuit is over, all proceeds from the lawfirm will be . . .

spent on a turnip.

KFG

SCO Source Code Omission

[digitaldc]

First of all, I almost went blind and had trouble reading the article after seeing Steve Forbes' face pop up on my screen to tell me about how great he is.

FTA: Hatch, SCO's attorney, says SCO learned about the destruction of code when it took depositions from IBM programmers. This is the first time SCO has made the allegation in public, though Hatch says the claim was part of a motion SCO filed in March 2006, which has remained sealed.
Hatch says the allegation has become relevant now, because it helps explain why SCO could not meet demands to cite source code.

IBM declined to comment, citing a policy of not discussing ongoing litigation.


So, who here feels sorry for the SCO lawyers?

*Crickets*

Absence of evidence is not evidence of absence

[Anonymous Coward]

Are they going to use the Boondocks "Rummi Gambit"? It's similar to the "Chewbacca Defense" from SouthPark. It goes something like this:

SCO: "Judge we can't find any evidence because IBM detroyed it."
IBM: "How could we destroy evidence when they haven't requested it or know what said evidence might be. Judge their case is totally without merit. They lack the evidence to proceed. We motion to dismiss."
SCO: "The absence of evidence, is not the evidence of absence."
IBM Lawyer: . "Judge IBM has provided all evidence they have requested. How can we provide items that are not known even to SCO. They are on a fishing expedition. We request that SCO make their evidence requests known. We shouldn't be made to provide items that are not identified and unknown. It appears that what SCO wants is unknown to even themselves."
SCO: "There are known knowns, and there are known unknowns, but there are unknown unknowns. Things that we don't know that we don't know."
IBM Lawyer: "Motion to dismiss your honor."
Judge: "Motion granted. Case dismissed."

Re:Absence of evidence is not evidence of absence

[hey!]

You don't pay laywers the big bucks to argue like that. They should be able to keep the near corpse of this case running a few more years at least.

IBM: "How could we destroy evidence when they haven't requested it or know what said evidence might be. Judge their case is totally without merit. They lack the evidence to proceed. We motion to dismiss."

SCO: "The absence of evidence, is not the evidence of absence."

Judge: "But you can't sue without evidence. That's what absence of evidence is."

SCO: "Yes, but you can sue in the absence of evidence if you have evidence of evidence."

Judge (frowning): "Run that by me again?"

SCO: "Absence of evidence is prima facie evidence if there is evidence of evidence."

Judge (frowning counting on his fingers): "But absence of evidence in the face of evidence of evidence is evidence that the evidence of evidence isn't errr... really evidence."

SCO: "No, absence of evidence in the face of evidence of evidence is not evidence of absence but evidence of malfeasance"

Judge (to IBM laywer): What do you say to that?

IBM Layer: Oh, I agree.

SCO(Trimumphantly): See! He admits it.

Judge: Admits what?

SCO: That they destroy the evidence of whihc the evidence of evidence was evidence of.

IBM: I admit no such thing.

Judge: What? You just said you agreed!

IBM: I agreed that absences of evidence in the presence of evidende of evidence evidences malefeasnce.

Judge: Isn't that the same thing?

IBM: No, because as my learned colleage is no doubt aware, I have not stipulated whether the evidence of malfeasnce pertains the to absence of evidence, or the absence of evidence of evidence.

Judge (working it out): Hey! What exactly is the evidence of evidence we've been talking about

SCO (looking at his feet): mumble

Judge: Pardon?

SCO: I said, they destroyed that too.

Judge (to IBM): What do you say to that.

(IBM is a bit preoccupied and does not respond)

Judge (to IBM): Excuse me, counsellor, but I asked you what you though of plaintiff's assertion that the absence of evidence of evidence is your fault?

IBM: I beg your pardon your honor. I was measuring another fathom of rope for my learned colleague.

Your Daily Chutzpah

[DanTheLewis]

Linux fans cheered the Wells ruling, viewing it as a sign that SCO's case is doomed. Hatch says they're celebrating too soon.

"You can't read big things into all these little wars," Hatch says. "It's like saying the North didn't win the Civil War just because a couple of battles were bad for us."

Of course, what Hatch is saying is like saying that SCO is fighting to keep the war-torn Linux world as one Union of the people, by the people, and for the people, by suing the pants off Linux developers, threatening to charge license fees to corporate users of Linux, accusing Linux developers of plagiarism and copyright violation and now obstruction of justice. They've got General Sherman in their back pocket just waiting to pillage his way through IBM's case. I think he works as a mathematician for MIT. Also, IBM owns slaves.

"Weeks after SCO filed its lawsuit, IBM directed 'dozens' of its Linux developers...to delete the AIX and/or Dynix source code from their computers," SCO's objection claims.

"One IBM Linux developer has admitted to destroying source code and tests, as well as pre-March 2003 drafts of source code he had written for Linux while referring to Dynix code on his computer," SCO says.

Come on, I thought the copyright infringement claims were going to show that parts of System V were copied into Linux. The argument that it's illegal for IBM to put their own code from Dynix into Linux has always been barely there. I guess if this destruction really happened, IBM will call SCO's bluff and say that they didn't know it was illegal to destroy their own code, because their legal department couldn't anticipate the need to preserve AIX and Dynix to prove SCO's wacky legal theory.

No spoon

[Otter Escaping North]

Child: "Don't try to make your case. That's impossible. Instead, try to realise the truth."

SCO: "What truth?"

Child: "There is no case."

SCO: "There is no case?"

Child: "Then you will see, that it is not your case that changes, but only your argument."

Re:As lawyers say.

[cdrudge]

I beleive Jack Thompson doesn't bang anything. It's against his crusade.

The story so far...

[mark-t]

SCO: You're a thief!

IBM: Huh? Are you on crack? What did I steal?

SCO: You know what you stole... our Unix code, that you put into Linux! Now turn it back over so I can prove you stole it!

IBM: Why do you think that?

SCO: We know you stole code from us because *WE* invented Unix, and Linux was written by a bunch of hackers and wannabe's... And yet somehow in less than a decade, doubtless with *YOUR* help, Linux managed to progress from a barely usable hacker kernel to something that is entirely practical in many areas include schools, businesses, embedded systems, and many others. This wouldn't have been possible if we hadn't invented Unix first, so you must have stolen code from us! So, give us back what you you stole... we can prove that it was ours!

IBM: Uhmmm... I don't know what you are talking about... Linux is open source, can't you show us from what's in the Linux source base?

SCO: While we could find code that was taken from us in Linux, finding it in the open source codebase wouldn't prove that you stole it.

IBM: Can you tell us where to look?

SCO: No... because if we did that, you'd destroy the evidence before this got to court. Just turn over what you stole.

IBM: If nobody here knows what code we allegedly stole how do we turn it over?

SCO: It's not our fault if your company doesn't keep records of where it gets stuff from. Just hand it over.

IBM: Like I said before, I don't know what you are talking about... can you show us if we give you everything we got?

SCO: (eyes light up like kid in a candy store) Yes! Yes! That will do fine! Give us everything you have!

IBM: Uh... okay. Here you go.

(much later...)

SCO: Hey! It's not here!

IBM: What's not there?

SCO: What you stole from us! You must be withholding something!

IBM: Uhmmm... nope. Do you want to search our place to see if we missed anything?

SCO: Yes, please. We'd like that very much.

IBM: Okay... come in (rolls eyes).

(later...)

SCO: Okay, what did you do with it?

IBM: Do with what?

SCO: The code you stole!

IBM: We didn't steal any code!

SCO: Yes you did!

IBM: Why do you still believe that when you've seen for yourself that we don't have it?

SCO: Because you must have destroyed it when we first asked to see everything!

IBM: Uhmmm... do you have any evidence to support that supposition?

SCO: Ah hah! You *ARE* admitting to destroying evidence!

IBM: For cryin' out loud man, get a grip! All we're saying is if you can't find any evidence for your claim, it really seems like a waste of effort to continue to pursue it. Although at this point I suppose it doesn't matter, because you know full well that we're going to sue your asses into the dust for this harrassment when the court finally rules that you are wrong.

Re:relevant excerpt

[Anonymous Coward]

Why yes your Honor, we are saying IBM programmers deleted IBM developed code that was not contributed to Linux, and that is what prevents us from showing how our Unix code wound up in Linux, and we cannot show you where it is.

Like the ravings of a crackhead on "Cops":

[wsanders]

"How the HELL did that crack get in my shoes! Those aren't even my damn shoes - they're my friend's shoes! I've never even seen those shoes! How'd those shoes get on my feet! Those aren't even my feet!"

At least this is legal strategy intended for use with law enformcement personnel. May not work as well in a court:

1) "Deny deny deny"
2) "Delay delay delay"
3) "Lie lie lie"

'Flat Earth" Vibe explained

[Alien54]

Group intelligence is multiplicative when idiots are involved - combining a half-wit with another half-wit does not result in a full-witted person, it results in a quarter-witted person (1/2 x 1/2 = 1/4). Combining a full-witted individual with a half-wit still only yields a half-wit. The more of these "half-wits" you have involved in the process, the worse things get.

So, in the case of SCO, the multiplication effect has been carried out to an awe-inspiring degree. Assess the number of people in SCO management, determine what portion are half-wits, then do the math.

I think we can safely assume that the majority of SCO management personnel are half-wits.

Re:COPY, right?

[Alsee]

I've fallen a little out of touch with SCO's legal argument. Could someone remind me, is this "This is a copyright case" week, or is this "This is not a copyright case" week?

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