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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. "
Did they hack my machine to get it removed from there as well?
I worked at IBM for a number of years as a sysadmin and developer. I can say with certainty that IBM isn't at all concerned with this case and never has been. In fact, the majority of IBM's employees aren't even aware that the suit exists, let alone that it's ongoing.
SCO periodically makes enough noise to get some new press, but beyond that the case is effectively dead. They really have no chance of actually winning, and the whole endeavor seems to be an elaborate pump and dump scam for their stock.
GeekNights!
Late Night Radio for Geeks!
We destroyed the evidence and now you cry
I am supposed to say something ambiguous and smart here. I'll leave that to everyone else...
Pot, I believe you know Kettle?
Sick of WoW? Try the thinking man's MMORPG: EVE Online
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.
"If the facts are on your side, bang on the facts.
If the law is on your side, bang on the law.
If neither the facts nor the law is on your side, bang on the table."
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
One would think, that if the code is destroyed, it won't be in Linux, and therefore no copyrights infringed, no?
Unless this work was done *perfectly* it would be really obvious to anyone going through the source tree history (which SCO has), and even then is easy to verify by compiling release trees and doing a binary diff against them (well, decompiling both then diffing might be better).
SCO are flat out lying, whether just to the public, or to their lawyers as well. The only reason I think IBM are continuing with this is to get each and every claim SCO has specifically and individually struck down so when the house of cards finally does crumble they have no way to try it again.
/* FUCK - The F-word is here so that you can grep for it */
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
The Christian Right is Neither (Christian nor right). See: Matthew 23, Matthew 25, Ezekiel 16:48-50
Ya know I wish there were some SCO shrills around to explain this.
SCO claims that IBM toke their code from SCO Unix, even if it was thru some long forgotten version of Dynix or AIX, into contributed into Linux.
But they have SCO Unix source and they have Linux source so simple show the connection and be done with it.
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.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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.
I'll probably be modded down for this...
Is it just me missing the Monty-Pythonesque foot? :-(
:%s/Open Source/Free Software/g
YTARY!
This is the strategy of SCO:
Hi, I'm Darl! I get paid $300,000 dollars each year the lawsuit continues- without doing any work other than a couple press conferences!
Basically, the people who run SCO get paid more the longer the litigation continues. It doesn't matter to them whether they win or lose- the longer the lawsuit continues the more
You are reading a copy of my copyrighted post.
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!
I mean... one developer deleted some files? Oh, the horror! But, um... I'm a developer, and I've been known to do that from time to time, not to destroy evidence, but just to clean up my drive.
We should also note that Forbes doesn't exactly have a great track record with respect to objectivity and accuracy on this case.
All in all, I think I'll refrain from assuming IBM's guilt just yet...
Here is the relevant excerpt from SCO's legal filing:
even after the Court ordered the source code to be produced, IBM failed to produce all versions of its AIX code, claiming that they cannot be located. Even more egregious was IBM's spoliation of evidence. Weeks after SCO filed its lawsuit, IBM directed "dozens" of its Linux developers within its LTC and at least ten of its Linux developers outside the LOC to delete the AIX and/or Dynix source code from their computers. (SCO Opp. Memo. (3/7/06) at 3.) One IBM Linux developer has admitted to destroying Dynix 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. (Id. at 3-4.)
SCO has access to every version of AIX and Dynix released in recent and not so recent history and they can't identify any infringement in them. So now they're saying that the same code that were copied or cached on the developers' workstation must have had the smoking gun in it. That's a really really desperate argument. Clearly they're just trying hard to raise arguments - any arguments - that may lead to this devastating ruling to be reversed. I suppose I can't blame them lawyers for not leaving a stone unturned.
Toward the end of its objection, SCO claims IBM deleted copies of two versions of Unix, called Dynix and AIX, which could have helped SCO prove its case.
Shouldn't the copyright holder keep, I dunno, copies?
Esoteric reference.
I note, with some amusement, that SCO shares, which have been hovering at the $4.50 mark for about 2 years, suddenly dropped to $2.50 about 10 days ago. Trading volumes are absolutely miniscule. I think we are seeing the end coming.
None of them can see the clouds; The polished wings don't care.
Hatch, SCO's attorney, says SCO learned about the destruction of code when it took depositions from IBM programmers.
So, they don't have the code. But they claim they have depositions from IBM people that show the code existed. TFA says nothing about SCO bringing the depositions to court, but I assume that would be the next step, which would be interesting - if it actually took place. We'll have to wait and see, I guess. Most likely we'll start hearing "we lost the depositions" or something like that.
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*
He who knows best knows how little he knows. - Thomas Jefferson
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."
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.
Q: What did the comedian say to the crowd?
A: If I knew, this joke would be funny.
If I understand this correctly, SCO is claiming their case is based on evidence they've never seen? Or do they mean they've actually seen it, but then it got destroyed so they can't present it as a part of the case? Oh wait.. wasn't this code neatly tucked on IBM developer workstations when all this began? So if SCO's case is based on it then they must've had access to it then! How is that possible? I'm too scared to even think about it.. Let alone mention it out loud when Darl might be around the corner ready to fire a subpoena at me!
If the code was copied into Linux, then it would be in one of the Linux releases. Since these are available from multiple sources, the fact that IBM deleted their copies wouldn't matter.
If it was code that never reached Linux, then what's wrong? Are they complaining that IBM didn't copy code into Linux?
If true, IBM discovered some coders copying from the Unix source, and says "don't do that", and removes the offending code before it ever got out. It apparently never made it to Linux, or SCO would be able to show it in the Linux listings. Sounds like they are complaining that IBM didn't allow the Unix source to be copied into Linux. It just sounds like the IBM code police were doing their job,
So, SCO's case now seems to be: They could have copied Unix code into Linux, but they didn't. Anyway, we want money.
Who would win this election: Andrew Weiner vs Andrew Weiner's weiner.
Now that I have finally managed to stop laughing, let me see if I understood this correctly.
SCO had such a strong case and so much evidence of "millions of lines of code", and "truckloads" of code from their "deep dive" proving that "the DNA of Linux is comming from UNIX", etc. that they were "ready for trial" in 2003 and they "don't need any discovery".
SCO needs all versions of AIX. Not only that, but they also need every unreleased internal iteration of code from CMVC, all programmer's notes, etc., at great expense.
SCO could not disclose specific code for M&C because they couldn't know what code was in the minds of IBM engineers when IBM disclosed the M&C.
IBM destroyed the evidence. So SCO cannot show what code, or M&C was copied. This, even though SCO has access to ALL of the code, and Linux code is publicly available.
No doubt, it must somehow be IBM's doing that SCO is unable to answer IBM's interrogatory asking for SCO to identify lines of Linux code that SCO claims to own rights in.
So in the end...
Of the vague nebulous blob of M&C...
Because of IBM's unfair, unethical and illegal actions, SCO is unable to...
So in conclusion, ladies and gentlemen of this fine Utah jury, IBM is guilty. They did it. Trust us. Now do the right thing. Award Billions in damages to the plaintiff please.
Thank you.
The price of freedom is eternal litigation.
For future reference:
In general, when providing a definition and example, you must use the word you have defined... in the example.
Just an aside, Brent Hatch appears to be the son of Senator Orrin Hatch. http://www.findarticles.com/p/articles/mi_qn4188/i s_20030601/ai_n11398911 would seem to bear that out, unless there is another Utah lawyer named Brent Hatch who isn't Sen Hatch's son.
Not sure if it means anything, but I thought it was interesting.
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."
Running Windows^H^H^H^H^H^H^H OSX and Linux in the home. (I don't have time for Solitaire any more.)
I can't believe this story is being reported accurately, because if it is, SCO are just the most incredibley stupid asshats that ever filed a lawsuit - and given the frivolous lawsuits that we hear about filed in the US in The Rest of the World (nah, it's not really a country, but it might help some people to think of it that way), that is saying a lot.
Forbes reporting this might just be the typical, not-tech-savvy bad reporting that I've come to know and love from mainstream press, but places like this should know better and Just Fucking Ignore It so SCO can continue sliding off the face of the Earth. I don't want to hear any more about this case until some judge finally tells them to shut up and fuck off.
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.
File under 'M' for 'Manic ranting'
The latest twist: Buried in a new filing from SCO (nyse: SCO - news - people ) is a claim that International Business Machines (nyse: IBM - news - people ) destroyed evidence by ordering its programmers to delete copies of software code that could have helped SCO prove its case.
... ... it is the first, then. We never had the code, but you're baaaad. Veeery baaad. And because you can't find the code of one OS of maybe 1000 (with the different versions), so you're hiding something.
... and we couldn't think of anything else.
Yeah... there are 2 options:
1. We never got the code, yet somehow we *KNOW* you're infringing our rights with it.
2. We had the code, but we lost it, so YOU must provide it.
SCO alleges this happened in 2003, yet the company has never talked about it in public before.
However, an attorney for SCO says the code deletion is one reason why the Lindon, Utah, software maker has been unable to comply with a demand that it produce examples of allegedly stolen code.
"It's kind of hard for us to do that," says Brent Hatch, an attorney with Hatch, James & Dodge in Salt Lake City, "because we don't have it. It was destroyed before it could be given to us."
Toward the end of its objection, SCO claims IBM deleted copies of two versions of Unix, called Dynix and AIX, which could have helped SCO prove its case.
Soooo
SCO claims the move was "egregious" and represents "spoliation of evidence," a potentially serious charge.
"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.
Claims, 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.
One guy working for IBM said, that he delete some code of some old obscure UNIX implementation. So what?
Hatch says the allegation has become relevant now, because it helps explain why SCO could not meet demands to cite source code
Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case.
So, pigs do fly?
"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."
Couple of battles? Come on, every semi-intelligent being can see their case is just hot-air.
And most of all, the judge cannot rule this in their favor for one simple reason:
They have to proove that IBM did this for the purpose of winning the case. So what? Someone in your organisation deletes some code when you're under litigation. You're charged with "destruction of evidence". Just because you destroyed some evidence, doesn't make you guilty. The destruction have to be on purpose.
Unless there is sufficient proof of their guilt, their claim is just bullsh*t, or put otherwise, good-ol-FUD.
That was exactly what I was thinking. IBM wanted to make sure its own house was clean, so it told its Linux developers not to have any versions of the UNIX source trees on their machines.
As far as deleting "draft" linux code, that might have been a case of playing it safe and making sure that nothing written by a developer with concurrent access to UNIX was contributed to their Linux projects (i.e. oh, you had access to UNIX source? Sorry we can't use your patches, please get rid of them and don't come back until UNIX is off your box.)
Daniel Lyons, once again, is just trying desperately to find any imagined silver lining to distract the public (or at least whatever part of the public might be reading forbes.com) from how bad things are getting for SCO. SCO's been making this claim about destruction of code at random for awhile, before Lyons picked it out of their last huge filing and decided to make a big deal out of it. I don't seem to remember the judge ever being nearly as impressed with it as Lyons had. I also don't seem to remember there ever being any reason to believe that SCO's allegations about IBM destroying evidence-- much like the central allegations of their case, actually-- were backed up by anything except wishful thinking.
Throughout this case there have been two consistent trends. One, IBM gives everything the court asks of them and goes to enormous lengths and expense trying to produce materials that SCO sometimes doesn't even seem to have wound up using, while SCO drags their feet and refuses to provide either what IBM requests or what is explicitly ordered of them by the judge. And two, this whole time, SCO rants ceaselessly in the press, usually through mouthpieces like Daniel Lyons, that IBM is refusing to provide what is ordered, IBM is obstructing justice, IBM is dragging their feet. (IBM, for some reason having decided to try their case in the courts rather than the media, tends to remain silent.)
At this point Forbes may be the only thing that still qualifies as a media source where you can read the news about SCO and get any impression except that things are going disastrously, one-sidedly bad for SCO.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
SCO's case is certainly a sorry last swing in a losing battle but to me, this whole debacle says more about what a pathetic situation the justice system is in than SCO's necrotic flailing. Anyone who has used SCO products for any period of time (back to Xenix for me), could see clearly they have been on their way out for many years before the 2003 death rattle. The sadder tale in this is that the justice system can now so easily be used more as a tool for capitalism then a tool for justice speaks of an animal so encumbered by it's own gross weight that it cannot even get away from itself. This is truly a pathetic story. Put this case in front of Judge Judy where it belongs and get it out of the real world. It'll be over in half and hour (minus time for commercials).
"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"
Give a man a fish and you have fed him for today. Teach a man to fish, and he'll say "WHERE'S MY FISH, YOU IDIOT?"
So, in the classes I've taken on working on large software projects there was one thing hammered home. Don't scratch your nose without using version control.
With this in mind, what are they claiming? Are they saying that J. Random Coder wiped the offending dynix/aix code from his workstation? In that case, the code is still in the Version Control history. Or is SCO claiming that IBM ordered developers to remove revisions of the offending code from the Version Control history?
Assuming that IBM *wanted* to do so, is this even possible for a good Version Control tool? I'm no CVS/SVN guru, but i thought the tools were specifically built to make this not possible.
/me grabs occam's razor...
"It may just be that there is something fundamentally unworkable about government itself" -H. Beam Piper
An imperfect plan executed violently is far superior to a perfect plan. -- George Patton
Orrin Hatch has a decent challenger from what I hear - you (or anyone else) can vote to get his challenger extra campaign funds here. Vote for Pete Ashdown (UT) to get the campaign funds. (I'm a libertarian - but I'd vote for just about anyone or anything if it meant getting rid of Orrin Hatch.) Use an email address you can get rid of or filter, because it will go into their database.
I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress -J Adams
The Brent O. Hatch that is representing SCO in this lawsuit is the son of Senator Orrin Hatch, R-Utah. Another son of Senator Orrin Hatch, Scott D. Hatch, is a lobbyist with Walker Martin & Hatch.
Sen. Orrin Hatch (R-Utah) has suggested that people who download copyrighted materials from the Internet should have their computers automatically destroyed.
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.
"It is a greater offense to steal men's labor, than their clothes"
Pete Ashdown owns XMission, which is Utah's largest ISP. He understands technical issues very well and would represent the technology crowd very well.
If a tree fell on a florist, and nobody was around to hear it, would he make a noise?
Most importantly, Ashdown is one of us. What, you say? Well, another poster mentioned he owns XMission, an ISP (which is also the host of Maddox). He is also apparently a Technocrat reader. He sounds like a semi-sane person, at least when it comes to technology.