IBM Denies Destroying Evidence in SCO Case

Rob writes "IBM Corp has denied claims made by SCO Group that it destroyed evidence relevant to their ongoing breach-of-contract and copyright case, maintaining that SCO has had the evidence in question in its possession since March 2005. SCO, which believes IBM breached a contract by contributing Unix code to the Linux operating system, accused IBM of destroying evidence in a July 2006 court filing, claiming that "IBM directed 'dozens' of its Linux developers within its LTC [Linux Technology Center] and at least 10 of its Linux developers outside... to delete the AIX and/or Dynix source code from their computers.""

Comments

What cojones!

[swillden]

What's really funny about this particular SCO accusation is that they're basically accusing IBM of being careful not to accidentally put SCO's (alleged) IP in Linux, and trying to spin it as a bad thing. IBM didn't want its developers to inadvertently use AIX or Dynix code in their Linux development work, because IBM didn't want to risk revealing AT&T's trade secrets and violating their contract. So, IBM prudently directed developers who were going to work on Linux to get rid of the AIX and Dynix source on their machines prior to beginning Linux development work. Now SCO wants the court to interpret this attitude of respect for AT&T/Novell/SCO/TSG IP as bad-faith destruction of evidence.

I guess I have to admire their chutzpah.

Re:What cojones!

[TubeSteak]

So, IBM prudently directed developers who were going to work on Linux to get rid of the AIX and Dynix source on their machines prior to beginning Linux development work. Now SCO wants the court to interpret this attitude of respect for AT&T/Novell/SCO/TSG IP as bad-faith destruction of evidence.

Except that isn't what constitutes bad-faith destruction of evidence.

The two really key parts of TFA are:
1. "Despite SCO's dogged efforts, it can identify nothing that has been destroyed."
2. "IBM also maintained that SCO did not show that IBM acted in bad faith or that SCO suffered any prejudice, and that SCO agreed in March 2006 that there were no disputes between the two parties over discovery evidence."

Basically, SCO can't prove shiat and even if they could, it's too late; since SCO already said that there were no evidentiary problems.

As others have said, Groklaw goes more indepth, but those two facts are all you really need to understand the issue.

Re:What cojones!

[swillden]

Not quite. They're claiming IBM put the code in, and are now removing it to try to hide their infringement.

While I agree that I simplified the claim, perhaps excessively, you've done the same thing.

To be very precise, they're claiming that IBM's developers copied "methods and concepts" from AIX/Dynix via the process of:

1. Creating and testing new or altered functionality in AIX and/or Dynix.
2. Implementing said functionality in Linux.
3. Deleting the AIX/Dynix code showing the functionality to hide the evidence of the "infringement".

Note, though, that the above doesn't contradict my statement that they're trying to twist IBM's cautious and respectful behavior into a bad-faith destruction of evidence. Basically, SCO concocted this weird "your code becomes mine if it rubs against mine" infringement argument because they couldn't find any copied SVR4 code. Then they were unable to find enough evidence of that sort of "transitive infringement", and when they noticed that IBM had asked developers to delete code, they saw an opportunity to argue that IBM did that *because* it wanted to destroy evidence of such "transitive infringement".

I stand by my original characterization. SCO is trying to twist IBM's cautious avoidance of IP contamination into evidence of malfeasance.

Re:What cojones!

[orkysoft]

Basically, SCO concocted this weird "your code becomes mine if it rubs against mine" infringement argument because they couldn't find any copied SVR4 code.

Wow, talk about your viral licences!

Not a logical argument

[Josh Lindenmuth]

Companies have their employees delete copies of source code all the time, particularly when they change projects or switch departments. It isn't in a company's best interest to have proprietary software in too many places at once, which was probably why IBM instructed these employees to delete it. This isn't destruction of evidence at all, since IBM almost certainly did not delete EVERY copy of AIX.

Now if these were the last copies of AIX source, then IBM is by far the dumbest company in existence ... who would ever delete source code for products clients are still using? I'm sure even Microsoft would never delete all source copies of Windows 3.1 ...

Re:Not a logical argument

[mstone]

The memo SCO complains about was written by a project lead from the Linux effort, and was distributed to a whopping total of eight programmers coming to the Linux project after having worked on AIX some time in the past. The whole gist of the memo was "given the litigation, it would be a good idea to have these people remove any sandboxes with AIX code in them before they start working work on Linux."

Only files on the programmers's personal machines were deleted. Anything that actually got submitted to AIX was in the central repository, which IBM produced to SCO five months previously.

Of the eight people who got copies of the message, four didn't delete anything, and the other four don't remember of they deleted anything or not.

The real kicker, as IBM points out, is that none of the eight people in question are listed in any of SCO's complaints about alleged IP infringement. If SCO thought these people had misappropriated methods or concepts from AIX and ported them into Linux, it was required to say so, specifically, before filing this motion as 'proof' that IBM was destroying evidence.

SCO's brief really boils down to, "We haven't actually accused these people of doing anything wrong. But if you adjust your tinfoil hat just right, you can see how their getting a memo to delete AIX files looks like evidence of a conspiracy by IBM management to destroy evidence related to this case." In practical terms, it's about half a step up from the Chewbacca Defense, and IBM's reply memo shows the Nazgul giving it the reaming it so richly deserves.

What a mess!

[udderly]

I simply cannot believe how long this has gone on. What a staggering waste of time and resources. This is probably as good an example as any of why the West is probably going to fall. While China is ramping up production and making huge economic strides, we here in the US are arguing over lines of code as our manufacturing base continues to crumble. Changing over to a "service economy?" Please.

How many hours have been wasted on this type of crap? What useful item has been produced out of this or any of the other spurious "copyright" or "intellectual property" cases?

Trial lawyers giving money to politician lawyers, who make laws so trial lawyers can argue cases against rival trial lawyers in front of judge lawyers. So, what's the common denominator and who benefits? Follow the money.

Re:What a mess!

[hey!]

Ah, but you miss the point. When the Exxon Valdez spilled its oil over the coast of Alaska, the money spent to clean it up counted towards the GDP.

Likewise, lawsuits, dollar for dollar, count just as much towards economic growth as manufactured goods.

Edward Abbbey once said, "Growth for growth's sake is the ideology of the cancer cell." In a country where monthly economic figures are cited in election debates, is it any wonder that our system favors fast growing tumors?

Re:What a mess!

[ZachPruckowski]

That's the Broken Window Fallacy. Money not wasted on lawsuits could be spend on something else, specifically something else that provides the economy (and the involved company) with more utility. If IBM didn't have to spend millions defending itself, it could go spend that money on hurrying up 65 nm production of the Cell processor, or building a bigger super-computer, or making improvements to AIX or Linux.

Ever heard of Groklaw?

[nadamsieee]

This was reported a week ago on Groklaw (in much greater detail).

Deleting a Sandbox -- Not the Repository

[gtwilliams]

This is old news.

IBM instructed developers to purge their sandboxes. This, of course, has nothing to do with the source code in IBM's source control systems. It's just working copies on developers' machines.

I deny all sorts of things also...

[Anonymous Coward]

I really hate the use of "deny" in headlines as it seems to imply that something is true and it is being denied for some nefarious reason.
If something is simply not true, guess what? I'm going to deny it.
The headline should be "SCO accuses IBM of destroying evidence"
(eg: the party making the accusation should be the subject of the sentence)

TDz.

Lawsuit that never ends

[pete.com]

This is the suit that never ends, Yes, it goes on and on, my friend Some people started it not knowing what it was, And they'll continue litigating forever just because--

Re:Lawsuit that never ends

[AJWM]

No, it's fair use. That song has an infinite number of verses, so the one he copied is a negligible fraction thereof.

Besides, it was a parody (also fair use), not a direct copy.

Re:The Disappeared Ones

[GigsVT]

It's funny they don't seem to crop up anymore

Their bosses at MS told them to work on the Novell story spin and let the SCO thing go since everyone saw through that ruse.

I'm not joking. Astroturf is real and is happening.

IBM does the right thing, and gets it wrong

[jmagar.com]

Of course they sent an email like that. You need to ensure none of the developers are cutting corners when SCO is breathing down your necks. So what do you do? Well, you remove the ability to access the source code in question. Any code out in the wild must be destroyed, and access to the code in the archive needs to be restricted. Simple.

SCO's claims here a bit funny, why complain when IBM does the thing you most desperately want them to? Or perhaps the problem here is that SCO wants the Linux source pollution, then they might have an actual case...

Anyway, I'm thoroughly bored with this story now. I can't spare any more time griping about those bad people at SCO. They have become irrelevant.

The problem is

[BenSchuarmer]

All of those things would infringe on SCO's intelectual property.

It's impossible to prove a negative

[msobkow]

SCO is making claims that cannot be proven either way. If there had been such file deletion, the files are gone so there is no proof they were ever there. If there had never been such files, the drives are in the same state as if they had existed and been deleted.

Time to stop playing word games.

Hang the SCO team or line them up in front of a firing squad. This witchhunt has gone on too long. They've used the courts to try to extort customer license fees, they've used the courts to impose heavy expenses on their targets, and they've used the courts to dig for evidence of vague claims without performing the due diligence of searching the public OSS archives first.

Fraud at the least, but I expect SCO is guilty of much worse. Stock manipulation. Extortion. Anything else?

Scrap the firing squad. Hang them and let the bodies rot in public so every other IP leech out there knows what their fate will be.

Re:I understand what you're saying, but...

[KokorHekkus]

I thought so as well so I looked it up: "In answering, the defendant is limited to admitting, denying or denying on the basis he/she/it has no information to affirm or deny"

Source:http://dictionary.law.com/default2.asp?sele cted=488&bold=%7C%7C%7C%7C