looking back to the next "yer move"

spunbondwarrior

August 20, 2006

Personally, it seems to me that too much emphasis is being placed on reading the latest when it would appear that to see what's up next might well require a look back to 2.25 years ago, I would suggest that any and everyone who has come later to the wonderful world of SCO than when this was first filed in May 2004 and never read this to read it today..... It is a really good read.... I hope the folks who really wrote this up write a book on the case one day... I'll even pre-order a hardback if they do....

http://www.groklaw.net/article.php?story=20040521183116140
>>IBM'S MEMO IN SUPPORT OF CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - as text<<

All in all a fascinating read....It pretty much would seem like just a very little bit o word-smithing here 'n there and and a new "title" and they might could just resubmit the filing

The filing makes even more sense today than it did when it was originally written.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<
INTERROGATORY No. 12:
Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating system and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.

INTERROGATORY NO. 13:
For each line of code and other material identified in response to Interrogatory No. 12, please state whether (a) IBM has infringed plaintiff's rights, and for any rights IBM is alleged to have infringed, describe in detail how IBM is alleged to have infringed plaintiff's rights . . . .
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<

At the Court's direction, IBM responded to the Court that SCO had failed to comply with the Court's order. Following a hearing on SCO's compliance, the Court ordered SCO to "fully comply within 45 days of the entry of this order with the Court's previous order dated December 12, 2003". (Ex. 40 at 2 1), which directed SCO to "respond fully and in detail to Interrogatory Nos. 12 and 13 as stated in IBM's Second Set of Interrogatories" (Ex. 36 2). The Court further ordered SCO in particular to "identify all specific lines of code from UNIX System V from which IBM's contributions from AIX or Dynix are alleged to be derived". (Ex. 40 at 2 3.)

On April 19, 2004, SCO purported to provide "complete, detailed, and thorough" answers to IBM's Interrogatories and the Court's orders. (See Ex. 41 9.) SCO identified additional material in Linux to which it supposedly has rights (without any real explanation as to why it failed to provide that information in response to the Court's first order). (See Ex. 28.) However. SCO again: (l) declined to identify the precise location of all of the material in Linux to which it claims rights (e.g., with respect to the so-called "IRIX/XFS" files contributed by SGI in which SCO claims rights, SCO still declines to identify the lines of code, as opposed to just the files, to which it claims rights); (2) failed properly to identify the nature of its alleged rights, including in particular whether and, if so, how the material derives from UNIX; and (3) declined to state how IBM infringes SCO's alleged rights. (See Ex. 28.)

To establish that IBM "copied" protected elements of SCO's alleged copyrights, one critical element SCO must show is that Linux is "substantially similar" to the allegedly copyrighted work (here, the UNlX software), so that the "copying" of Linux could be said to constitute "copying" of UNIX.10 See Gates, 9 F.3d at 831. This necessarily requires SCO to identify the precise lines of Linux code in which it claims rights and the precise lines of code in the UNIX software from which SCO alleges the Linux code is copied or derives. It is for precisely this reason that IBM asked SCO (so long ago) to provide this information and, we believe, that the Court required SCO to provide it.

Rather than match the precise lines of code in Linux to which SCO claims rights to the precise lines of code in the UNIX source over which SCO claims copyright protection, SCO simply states that all of the material in Linux to which SCO claims rights matches all of the UNIX software over which SCO claims copyright protection. SCO states: "the entirety of UNIX System V licensed to IBM and Sequent are the lines from which IBM's contributions [to Linux] of AIX and Dynix/ptx are derived". (See Ex. 28.) Not only does SCO's response not comply with the Court's order, but also it provides no more information than was included in SCO's original complaint. (See Ex. 9 96 (alleging that "'IBM's contributions' consisted of the improper extraction, use, and dissemination of SCO's UNIX source code and libraries, and unauthorized misuse of UNIX methods, concepts, and know-how").)

--------------------------------------------------------------------------------

I could be wrong here (or there too for that matter) but I would say that that still just about sums things up.... And add in a few little missteps here n there and little bit back door hanky panky here in good ol NC and bingo.....

Meanwhile back on planet earth....
WTF was I thinking.....

IANAL and I probably never will be,
but if I was, I'd wanna be the Jesse Ventura of lawyers everwhere
I do however remain fully delusional, but fortunately (for me, anyway) only semi-psychotic.

11:18:04 AM


Re: looking back to the next

rgriffith64

August 20, 2006

One very interesting point is the very legitmate contributions that SCO has made to the Linux kernel.

Certainly direct contributions from SCO would be counted under
" INTERROGATORY No. 12:
Please identify, with specificity (by file and line of code), (a) all source code and other material in Linux (including but not limited to the Linux kernel, any Linux operating system and any Linux distribution) to which plaintiff has rights; and (b) the nature of plaintiff's rights, including but not limited to whether and how the code or other material derives from UNIX.
"

IBM has a deposition from Andrew Morton.

Would SCO get in really big trouble if they did NOT report all those bits of code in the kernel that they actually did contribute?

It seems to me SCO has failed to report real code it has rights over.

6:41:00 PM


Re: looking back to the next

ruidh

August 20, 2006

>> Would SCO get in really big trouble if they did NOT report all those bits of code in the kernel that they actually did contribute? <<

Probably not. They've been offered an opportunty to make a claim. Should it come to trial, and I suspect it won't except perhaps for the Lanham Act claims, it might prove embarassing to ask SCO executives about this on the stand. If they don;t mention the legitimate SCOX contributions, you list them one by one and ask the exec about each one. It would make a great show for the jury.

It dosn't help them to make such an obviously incorrect response.

>> It seems to me SCO has failed to report real code it has rights over. <<

IBM knows what code that is.

9:33:00 PM


Re: looking back to the next

rgriffith64

August 20, 2006

> Probably not.

But that means SCO has deliberatly ignored a disclosure order. SCO made press releases about their contritbutions, so they have to knwow there are some. If they have no records they are free to search the linux kernel for @sco.com or @caldera.com and look for employee names. Also they can interview their own staff about actions. I would think a failure on the part of SCO to report those is clearly a more deliberate act of omission than any thing else they have done.

Yes, it hurts their case to admit it. But they were ordered to disclose it. I would say this is pretty clear contempt of court more than just failing to meet specifics.

10:06:27 PM


Re: looking back to the next

ruidh

August 20, 2006

>> Yes, it hurts their case to admit it. But they were ordered to disclose it. I would say this is pretty clear contempt of court more than just failing to meet specifics. <<

It just dosn't work that way. It normally takes a more egregious and deliberate failure to trigger contempt. Either IBM or the court has to decide to make an issue of it and demand a more complete disclosure. Only after deliberately failing to respond to a specific order are remedies such as contempt in order.

11:24:07 PM


Re: looking back to the next

rgriffith64

August 20, 2006

> Only after deliberately failing to respond to a specific order are remedies such as contempt in order.

Were they not ordered to disclose all code SCO claims rights over. Having code signed by people from SCO certainly would give them rights over it. That seemed like a pretty direct and specific order that covered direct contributions very much more so than any indirect contributions made by IBM people coding beside UNIX which SCO claims to have rights over which they want to extend beyond the contract clauses to contaminate the IBM code.

Or has SCO just released the code to the world by failing to assert their rights?

11:36:01 PM


Re: looking back to the next two forward

AllParadox

August 21, 2006

SCO v. IBM

What does IBM want?  Other than obviously wanting to win, that is.

IBM could have let this whole thing slip away silently into the night, long ago.  I surmise that they did not, because of the very nasty public statements by president McBride.  "Stealing" and "Copyright Infringement" are strong charges for IBM senior managers, and they take them seriously.  I am not suggesting that IBM is as pure as the driven snow.  However, they are far too big, and have too much reputation riding on their credibility, to tolerate nasty and untrue public accusations impugning their integrity.

Without knowing for sure, I very strongly expect that IBM's primary goal in this proceeding is to re-establish their good name. 

Subject to the fickle whims of Federal Judges, I expect all the worthwhile Partial Summary Judgments to be found in IBM's favor.  That, alone, will reinstate IBM's reputation for integrity.  Everything else will be gravy.  The PSJ's are what they have been struggling toward, from the beginning of the lawsuit. 

I expect that "The SCO Group" will fold up its tent and close business, shortly after the Partial Summary Judgment motion rulings are handed down.  It will then be rationally undeniable that the company has liabilities to IBM far in excess of its assets or any possible recovery from IBM to offset the Lanham Act liabilities.  They will be practically bankrupt, even if not technically so.

Unfortunately for IBM, after all this effort to get where they want to go, they may still not receive the credit they deserve for a case so well handled.

I fear that the SCO v. Novell arbitration will conclude before the PSJ's are even heard, and, because of the plain and direct language of the APA, the arbitrators will award all the UnixSysV copyrights to Novell.  At that point, most of the SCO v. IBM claims are moot, except for the Lanham Act violations.  "The SCO Group" would most likely fold up right then, and the PSJ's in SCO v. IBM would never be heard.  (I think that the IBM attorneys have a nearly-final draft of all their PSJ's ready now, pending a final polish before submission.  I would, if I were in their place, and they are very good attorneys.)
__________________________________________________
AllParadox - Retired Attorney, no legal opinions, just my opinion.

1:52:51 AM


Re: looking back to the next two forward

El Corton

August 21, 2006

< I fear that the SCO v. Novell arbitration will conclude before the PSJ's are even heard, and, because of the plain and direct language of the APA, the arbitrators will award all the UnixSysV copyrights to Novell. >

I tend to doubt this. As usual, there are at least three independent questions:

(1) Is there any protected UNIX content in Linux?
(2) If so, who holds the copyrights to that content?
(3) If SCO holds, or did hold, any of those copyrights, can it sue Novell for infringement?

The arbitration panel only needs to answer question (3). There's no need to answer questions (1) and (2) if the United Linux agreement takes care of it.

< At that point, most of the SCO v. IBM claims are moot, except for the Lanham Act violations. >

Do you say that the arbitration result will be binding in SCO v IBM, given that IBM is not a party to the arbitration agreement?

10:21:29 AM


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