SCO Fails to Produce Evidence

BlueSteel writes "For those of you that need that daily SCO fix, Groklaw has the declaration of Ryan E. Tibbitts of SCO, stating why they haven't produced any evidence... and that they need recent AIX and Dynix/ptx code from IBM before they can comply."

uh..

[grub]

For those of you that need that daily SCO fix

Daily? Has /. been cutting back?

Re:uh..

[Webmonger]

Daily? Has /. been cutting back?

No. See today's story, for example. Oh, wait...

Re:uh..

[Frymaster]

Daily? Has /. been cutting back?

1. well, it has been the holidays and
2. if you want your sco stories to be delivered on time, ibm will have to hand over some code from aix first.

Re:uh..

[Anonymous Coward]

From bash.org #106579
Topic in #os: hey guyz, stop pickin on irix.
<SCO> w00t! i bought unix! im gonna b so rich!
<novell> /msg atnt haha. idiot.
<novell> whoops. was that out loud?
<atnt> rotfl
<ibm> lol
<SCO> why r u laffin at me?
<novell> dude, unix is so 10 years ago. linux is in now.
<SCO> wtf?
<SCO> hey guyz, i bought caldera, I have linux now.
<red_hat> haha, your linux sucks.
<novell> lol
<atnt> lol
<ibm> lol
<SCO> no wayz, i will sell more linux than u!
<ibm> your linux sucks, you should look at SuSE
<SuSE> Ja. Wir bilden gutes Linux fur IBM.
<SCO> can we do linux with you?
<SuSE> Ich bin nicht sicher...
<ibm> *cough*
<SuSE> Gut lassen Sie uns vereinigen.
* SuSE is now SuSE[UL]
* SCO is now caldera[UL]
<turbolinux> can we play?
<conectiva> we're bored... we'll go too.
<ibm> sure!
* turbolinux is now turbolinux[UL]
* conectiva is now conectiva[UL]
<ibm> redhat: you should join!
<SuSE[UL]> Ja! Wir sind vereinigtes Linux. Widerstand ist vergeblich.
<red_hat> haha. no.
<red_hat> lamers.
<ibm> what about you debian?
<debian> we'll discuss it and let you know in 5 years.
<caldera[UL]> no one wants my linux!
<turbolinux[UL]> i got owned.
<caldera[UL]> u all tricked me. linux is lame.
* caldera[UL] is now known as SCO
<SCO> i'm going back to unix.
<SGI> yeah! want to do unix with me?
<SCO> haha. no. lamer.
<novell> lol
<ibm> snap!
<SGI> :~(
<SCO> hey, u shut up. im gonna sue u ibm.
<ibm> wtf?
<SCO> yea, you stole all the good stuff from unix.
<red_hat> lol
<SuSE[UL]> heraus laut lachen
<ibm> lol
<SCO> shutup. i'm gonna email all your friends and tell them you suck.
<ibm> go ahead. baby.
<SCO> andandand... i revoke your unix! how do you like that?
<ibm> oh no, you didn't. AIX is forever.
<novell> actually, we still own unix, you can't do that.
<SCO> wtf? we bought it from u.
<novell> whoops. our bad.
<SCO> i own u. haha
<SCO> ibm: give me all your AIX now!
<ibm> whatever. lamer.
* ibm sets mode +b SCO!*@*
* SCO has been kicked from #os (own this.)

Re:uh..

[red floyd]

Not bad, but you forgot the line

* SuSE[UL] is now novell[SuSE]

Re:uh..

[Gherald]

Here's a babelfish of the SuSE lines, for us anglicans:

Yes. We form good Linux fur IBM.

I am not certain..

You let unite us goods.

out loudly laugh

Gentoo!

[Trejkaz]

Please note: Gentoo is apparently not lame enough to be on IRC. Rejoice!

Re:Gentoo!

[Yorrike]

It would have been there, but it was busy compiling ; )

Re:Gentoo!

[sketerpot]

Once it was compiled, it was able to realize that it didn't have the ethernet card driver installed---faster than the others! Back to kernel configuration! (Whee! Fun! Seriously, almost.)

Re:Gentoo!

[rsax]

Actually.............

[16:05] gentoo has joined #os
[16:06] gentoo: PORTAGE IS COOL!! RPM & DEB SUCK ASS!
[16:06] gentoo: PORTAGE IS COOL!! RPM & DEB SUCK ASS!
[16:06] gentoo: PORTAGE IS COOL!! RPM & DEB SUCK ASS!
[16:06] gentoo: PORTAGE IS COOL!! RPM & DEB SUCK ASS!
[16:07] debian sets mode +b gentoo!*@*
[16:07] gentoo has been kicked from #os (stop flooding lamer)

Re:uh..

[Lane.exe]

You forgot:

[SuSE] Herr Mandrake, willst du mitgekommen?

[Mdk] Je ne sais pas. Peut-etre je me rendrai juste a la faillite.

[SuSE] Na ja.

Re:uh..

[NickDngr]

That's really good. Even though +5 Funny doesn't help Karma, I would have wanted that one under my belt anway - why did you post as AC??

Because I copied it from bash.org, and I didn't want to take credit for it.

Summary

[GnrlFajita]

In case you don't want to RTFA, it all boils down to SCO giving two excuses for not fully complying with the court's order:
(1) Hey, it was the holidays. This lawsuit isn't important enough to bother our directors with over Christmas.
(2) Well, we're pretty sure that they're infringing somehow, but despite the fact that we claim to own this stuff, doggone if we can't find a current version of it. Anyway, once IBM spells it all out for us I'm sure we'll come up with something that looks like that other thing. Probably.

Another FA you can avoid R'ing (link found at Groklaw): the Motley Fool [fool.com] looks at the 'shakedown' of Linux providers: "with the entire computing world putting its money behind Linux, it appears that, for SCO, the apocalypse is now."

Re:Summary

[IFF123]

But why should we provide the code and go into court when we can sue users and companies right now?

Re:Summary

[Esteanil]

Let me get this straight...
They need *proprietary* code from IBM in order to prove that Linux, an *open source* OS, the source widely downlodable... contains SCO proprietary code?

Re:Summary

[Daniel_Staal]

(Disclaimer: SCO is smoking crack. I believe none of what I am about to say...)

Actually, SCO has a point. They claim ownership of the code in UNIX derivatives, of which AIX and the rest are examples. The fact that SCO has never seen or handled that code in any way is irrelevant. It is perfectly possible that IBM has infringed on SCO's property by copying code that IBM wrote for AIX/others into Linux. In which case, the only copy that SCO currently has access to is the Linux copy. After all SCO didn't write the code. IBM did. SCO just owns the rights.

Re:Summary

[cduffy]

Yup. And that would be true, too, if it weren't for the letter of understanding to the contrary; see Exhibit C from here [iwethey.org]:

"3. Regarding Section 2.01, we agree that modifications and derivative works prepared by or for you are owned by you. However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with us."

This makes it pretty darned clear that IBM does in fact own their own "modifications and derivative works", which covers JFS and all the other features IBM added to AIX (and later Linux).

Re:Summary

[michael_cain]

This makes it pretty darned clear that IBM does in fact own their own "modifications and derivative works"

I think SCO's case -- the real case, the one that has to be argued in court -- will acknowledge that IBM owns their own work, and that they can do anything they want in terms of embedding it in binary form in their own products, but that IBM requires SCO's permission to reveal the source code or even the methods used to third parties. That's a fairly fine distinction. There are lots of situations where you own something, but there are constraints on the uses that you can make of it. I think SCO will lose, mostly on grounds that (a) most of the SysV "trade secrets" aren't, (b) the previous owners of the contract didn't adequately protect their trade secret rights (so SCO can't successfully attempt to reclaim those rights), and (c) neither party who signed the contract in 1985 intended for it to apply this far into the future.

Re:Summary

[AKAImBatman]

Actually, that's wrong. IBM's contract specifies that original code added to Unix by IBM is IBM's property. SCO has been ignoring this clause by trying to redefine what "derivative" means. Unfortunately (for them), there's a huge case history of derivative works that have already established that SCO can't redefine derivative to mean what they want it to mean.

Ergo, SCO is smoking crack.

Re:Summary

[0WaitState]

The problem with that is you cannot just bring suit to compel a company to open up its proprietary code for you to check for violations. You have to make a realistic case that there are violations *before* getting access. Otherwise, what's to stop every out-of-work coder from bombarding software companies with nuiscance lawsuits saying "You used my sekrit weeblefetzer quicksort variation without a license! Spend $500,000 responding to my demands for evidence or settle (buy a license) for $69,900!"

Re:Summary

[rgmoore]

Of course, IBM has shown evidence that their contract does NOT say otherwise, but SCOldera seems to be hoping that the judge will overlook that tiny detail. :)

Except that's not quite right. The truly pathetic side to this story is that it isn't IBM that produced the evidence that the license doesn't say what SCO claims it does. It was SCO. That's right, they attached the side letter (as Exhibit C [sco.com]) establishing that IBM had rights to their own work to their original complaint. It's still right there on their website. Their own evidence debunks the main theory behind their case!

Re:Summary

[c1ay]

Somebody please tell me what I'm missing here. In an interview with CNET [com.com] Darl Mcbride says, "We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code," In addition, he said, "We're finding code that looks like it's been obfuscated to make it look like it wasn't UnixWare code--but it was."

Now Mr. Tibbits says they need recent AIX and Dynix/ptx code from IBM before they can comply.

Have they identified offending lines in the kernel source or have they not. Darl claims they have already matched code to the Unixware code and now they can't seem to reproduce it for the court. What's wrong with this picture?

Re:Summary

[mst76]

Have they identified offending lines in the kernel source or have they not. Darl claims they have already matched code to the Unixware code and now they can't seem to reproduce it for the court. What's wrong with this picture?

There are two different issues. 1. IBM contributed SMP, JFS, RCU, and NUMA code to linux. SCO claims these came from from AIX, and that they have right to everything IBM adds to AIX. They are sueing IBM for contract violation, not copyright infringment. They do not need to show any copied lines, only that the mentioned code come from AIX and that their original Unix contract gave them right over these technologies. 2. SCO claims in the press that they discovered line by line copying from SystemV in the Linux source code. They sent letters to companies, threatening to sue them if they don't buy a license from SCO. They show these lines to journalists and developers under NDA. They have NOT actually gone to court over this, so they do not actually need to prove copyright infringment. They are intentionally refering to both actions as "defending their IP". The idea is that since they have actually gone to court over one issue, the companies who received the letters for protection money will find their other threats more credible.

Re:I don't understand...

[Jahf]

Exactly.

The court should order SCO and IBM to both put their codes into blind escrow and then release the code from both to the legal team for each so that no funny business can go on =and= so that both sides have equal footing for making their cases. Same for any other participants who have been accused by SCO.

May not be standard procedure, but this is a rather odd case. It would definitely help both companies show to their customers that they are playing fair.

Additional code discovery could happen, but it should always be under view of the court.

There is little if any code ...

[j_w_d]

"discovered" so far. To judge from SCO's notice of [non]compliance, they apparently failed extravagantly to meet the court's order. They should be thinking about how to convinve the court that their suit isn't frivolous, and about convincing IBM to settle (e.g. by 'em out). Evidently, they aren't anxious, or else have neurological checksum problems in the board room. You would think that if they DID have actual evidence, that they would have shown IBM convincing evidence and asked for an offer from IBM that would make it right. As it is, SCO's name may go down in history right next to George Armstrong Custer under famous massacres due to arrogance and over confidence.

Re:Summary

[k12linux]

The linux development goes on more or less as usual... less some time for Linus or others to take interviews from the press. IBM's Linux development is very likely moving at the same pace it always had.

They may have taken steps to ensure that current programmers had never had any access to protected UNIX or AIX code, but I doubt it goes much further than that.

Surveys show that adoption of Linux is being affected very little by this thing.

IBM already has enough lawyers to darken the skys and a few million $ spent probably will be more than offset by the press and PR of it all when things are finally settled.

As far as I can see only SCO is really being affected. They haven't produced anything new for some time so that's notthe issue... but according to their SEC filings, this thing is costing them millions. (Something like $9 million in the last quarter alone.)

Re:Summary

[Sj0]

IBM probably keeps those lawyers on the payroll, so I wouldn't be suprised if the lawsuit isn't costing them a penny. You do that sort of thing when you're oh my god huge. :)

I hope not

[roystgnr]

I hope SCO spends itself out of existence on legal fees.

That would be awful both for Red Hat and IBM (who should otherwise be getting some amount of reparations in their countersuits) and for SCO's current investors, some of whom probably imagine that the US has a swift justice system that wouldn't allow SCO to make outright lies without sanction.

Reserve your ire for SCO's current leaders, particularly the ones whose insider trades (filing to buy stock options and sell shares after SCO's internal discussion of the IBM litigation but before that litigation became public knowledge) and deception have earned them millions of dollars [yahoo.com] so far. These guys are next to the Enron executives in the United States' ongoing [pcworld.com] experiment [guardian.co.uk]: "How hard is it to profit from million dollar lies and escape punishment?"

Amazing

[MoxCamel]

Well, tip me over with a feather! I never would have seen this coming!

Shock horror!

[Trejkaz]

Oh no! SCO couldn't produce any evidence! Maybe that's because THERE IS NO EVIDENCE!

Re:Shock horror!

[Anonymous Coward]

Hey, lack of evidence worked in Iraq... why not here?
-bk

Re:Shock horror!

[boaworm]

Maybe that's because THERE IS NO EVIDENCE!

Exactly. That's why they need more time. to PRODUCE the evidence :-)

Re:Shock horror!

[twofidyKidd]

"...PRODUCE the evidence..."

Somewhere on the planet, at this precise moment, an SCO lawyer is corralling about a million monkeys into a room with about a million workstations...

Re:Shock horror!

[tntguy]

However, since the lack infinite time, they'll only be able to produce Windows 2004.

Re:Shock horror!

[justsomebody]

They would, they would, but like every good company that's running 3bil$ lawsuit they had Christmass vacations.

Re:Shock horror!

[ehvoy]

true. HOWEVER, if chewbacca is a wookie, you must pay $699...

what was the gist of the south park episode again?

Re:Shock horror!

[red floyd]

#include <IANAL.h>
It's worse than that. In the 5 December hearing, the judge ruled that they can't ask for ANY of IBM's stuff until they provide answers to IBM.

Tibbets' declaration seems to say, "give us the stuff you said we can't have, and then we'll give you the stuff you told us we had to provide".

Since when...

[mr_mischief]

is it the defendant's job to prosecute himself?

Re:Since when...

[jmv]

That's the new terrorist laws. Suspected terrorists must prove that the are terrorists. If they fail to provide proof, the are jailed for obstruction to justice.

The Ministry of Truth feels your comments are ...

[burgburgburg]

doubleplusungood. Representatives of the Ashcroft Ministry of Love will be stopping by later to take you on a vacation to sunny Guantanamo Bay where you can relearn to love Big W.

Oh, and the chocolate rations have been increased to 5 units.

Re:Since when...

[kent_eh]

is it the defendant's job to prosecute himself?

Ummm... Isn't it IBM who is being sued, and therefore is the defendant. SCO has to prove that an offence was committed, then it's up to IBM to defend themselves.

SCO hasn't provided any evidence of infringement for IBM to defend themselves against.

...unless I mis-understood what you were saying, then just ignore me.

Re:Since when... (offtopic)

[ozric99]

Since when is it the defendant's job to prosecute himself?

Not entirely related, however, an interesting facet of UK law as it stands at the moment, when presented with a NIP (Notice of Intended Prosecution) for a speeding charge (taken by a speed camera), the recipient has two choices:
1. Fill in, sign the form and send it back, thus incriminating yourself.
2. Refuse to fill it in and get charged with obstruction of justice.

There is a "loophole" that involves, amongst other things, the defendant returning the form without signing it, going to court, adn finding the police can't use it as evidence. Somethign along those lines, anyway.

That snippet of our law aside, what SCO are attempting to do would surely be laughed out of every court in teh land. I await the judges decision with baited breath. SCO is going down - of that there's no doubt, however, I wonder whether the main protagonists in this case will be able to walk away scot free under the protection of Canopy. I sincerely hope that won't be the case.

Re:Since when...

[geekee]

" is it the defendant's job to prosecute himself?"

No, but it is his job to turn over evidence to the prosecution in accordance with court orders. For instance, if you wanted to prosecute someone for a GPL viokation, you'd probably need to demonstrate that your suspicions of GPL violations are credible, at which point a court will for the defendent to hand over source code to you to verify your claim and win your court case.

There is no defendant

[Sycraft-fu]

Since this is civil court. There is a respondant. the difference is important.

In civil court you CAN be compelled to give up things to help the plantiff's (what you call the person that brought the suit) case. There are limits, of course.

Civil and criminal courts play by very different rules.

Where's the news?

[LostCluster]

SCO not coming up with proof is not a news story... it's something that's been going on for quite a while.

Re:Where's the news?

[iggymanz]

except this time a judge ordered them to do it with a hard deadline, and they didn't. Can't wait till the hearing on Jan 23, I'm going to fiddle as SCO burns....

This just in..

[Anonymous Coward]

News just in - the Emperor has no clothes, and - eww - that's disgusting!

If anyone believed SCO, I hope they feel silly right now...

And it completely unrelated news

[LNO]

Monkeys failed to fly out of my butt.

I'm not convinced they're unrelated.

Old version?

[lostchicken]

How did SCO get a copy of "IBM AIX source code, an old version labeled MERCED/9922A_43NIA"?

I doubt that IBM would have just turned over source to AIX as part of the trial, much less an old version, so how did they get it?

Re:Old version?

[IPFreely]

How did SCO get a copy of "IBM AIX source code, an old version labeled MERCED/9922A_43NIA"?

A few years back, when Intel was first spouting off about Itanium, IBM and SCO were working togethere on a next-generation Unix project targeted at Itanium. That project was called "MERCED". That's most likely where that code came from.

Re:Old version?

[leoxx]

You have it almost right. "Merced" was the code name [umbc.edu] for what is now known as the Itanium CPU from Intel. The code name for the joint IBM/SCO Unix was "Monterey" [umbc.edu].

Re:Old version?

[Anonymous Coward]

Actually the chip now called Itanium was originally named Merced. The project between IBM and SCO was Project Monterey. (Note one 'R' - the town in California not too far from Santa Cruz where the deal was signed, not the place in Mexico).

Project Monterey was going to take the best bits of SCO UnixWare (basically SVR4.2), SCO OpenServer (SVR3.2 but with lots of user/admin friendly stuff which is why people bought $200m of it each year) and AIX (ancient roots in SVR3.2 but thoroughly IBMized), and combine them all into a kick-ass UNIX for Itanium. Itanium was perceived at the time as where the commodity 64 bit chip market was going and the idea was to band together against Sun (Sparc) and Compaq/Digital (Alpha).

Work did start on Monterey, but the problem was that IBM ended up doing most of the work. It was supposed to be equal, but SCO just did not have the people. (At the time Windows NT and Linux were advancing so quickly that SCO was having a hard time even pretending to be relevant any more).

SCO ended up doing less and less towards Monterey and eventually IBM just gave up and called it quits.

Both Windows NT and Linux were eating away at SCO's UNIXes. SCO tried various things such as clustering and data center acceleration programs, but it was a lost cause. There was however some one time revenue from people doing Y2K upgrades, which SCO's able management didn't realise was one time.

Caldera then got interested in the SCO channel (15,000 mom and pop shops around the world that sold OpenServer in conjunction with other software, hardware and services - think outfitting a dentists office). SCO and Caldera came up with some very convoluted agreement that even the SEC couldn't understand. They then did a second agreement, and all the UNIX stuff when to Caldera, and the original SCO became Tarantella.

Caldera continued to suck because the 15,000 mom and pop shops did not like being lectured to, and could do Linux by themselves. They didn't need Caldera. Caldera couldn't make money at $24 a copy. Eventually they decided to plunder the OpenServer/UnixWare revenue stream (OpenServer customers are extremely loyal) and came up with various licensing plans noone was interested in.

Finally they decided to take a gamble on taking on IBM ...

(Disclaimer: I am an ex-SCO employee, but had nothing to do with any of the crap other than as a highly critical observer).

Re:Old version?

[IFF123]

I get it finally...

Let's see if it works:
1. Sue Microsoft on basis that they have infringing code in windows.
2. Request windows source in order to comply with courts to provide the "infringing code".
3. Have a good long laugh reading the source.

Re:Old version?

[Nucleon500]

So SCO has old AIX source from Project Monterey. Now I wonder: how did Monterey end, and is SCO entitled to have this code? This could get even more interesting if IBM finds some contract saying SCO should have destroyed it.

SCO Attorney: Please, IBM, give us evidence

[Anonymous Coward]

SCO Attorney: "Your honor, we are unable to provide evidence for our claims. We request that IBM prove our case for us."

Judge to commence laughing in 5..4..3..

Can't wait...

[Mr. Sketch]

to see what IBM's Legion Of Firebreathing Laywers have to say about this.

[sits back and grabs some popcorn] This should be good...

IBM: Not exactly "Fire Breathing"

[Saeed al-Sahaf]

to see what IBM's Legion Of Firebreathing Laywers have to say about this.

Not sure if "fire breathing" is quit the right way to describe the IBM guys...

As we know from the fact that while "The Darl" God, his parents must have hated him) et al spew FUD like an angry volcano, IBM has more or less been quietly operating in the background, most likely when the time is right the IBM suits will calmly pop open their identical briefcases and extract the dental drills, pliers, and electrical probes...

SCO says:

[cybermace5]

"You want the evidence? You can't HANDLE the evidence!"

D'oh!

[frodo from middle ea]

D'oh!, I demand a refund of my $699.

I'm sure glad...

[butane_bob2003]

...my name's not Briny Tidbitts. With a name like that, you might as well work at SCO.

Re:I'm sure glad...

[daeley]

Briny Tidbitts

Sounds like a Spongebob Squarepants character. :)

Re:I'm sure glad...

[metatruk]

You know, I kinda feel sorry for SCO's employees. I am sure many of them have little to do with this litigation against IBM, and all of the nonsense that has gone along with it, as this crap is the doing of SCO's administration.

SCO has certainly earned quite a reputation. I am sure it will be very difficult for SCO employees to find work elsewhere because employers will fear that SCO will go after them for absurd acusations of IP theft.

Proboably not

[IBitOBear]

It is almost certain that nothing will be left of SCO other than a tiny smokeing hole. A somking hole, as such, can't really go after anybody.

Having picked the fight, SCO is now powerless to stop it. By the time the dust settles, SCO should have been proved to have no IP interest in anyting because of Novel's "non-exclusive right to use, with no transfer or ownership" sale of rights to SCO of System V code.

IBM's counter-suit will probably bankrupt SCO, and if it doesn't it will pre-prove as a matter of legal record, the baselessness of SCO's claims. That "Takes care of" the hard part of Red Hat's suit, leaving them to suck up any unspent tidbits.

Since there won't be enough money to go around, one of these other companies will end up with the bulk of any possible IP SCO would have.

the natural outcome may well be the complete open-sourcing of whatever there is to be had. Neither IBM nor Rred Hat, having devalued SCO's claims, are likely to miss the PR win of taking that near-zero-value spoils of war and tossing it to the OS comunity.

The "all of your base belong to whoever wants it" final stab in the eye at Daryl would be all of 1) poetic justice, 2) wonderfully vengeful, 3) good PR use of a proven-unenforceable, depreciated assett, 4) likely to simplify the lives of whoever ends up "successor in interest" in this stuff, as it would prevent any form of back-blast claims.

So IBM and/or Red Hat just say, "here, we pryed this out of their cold, dead hands. We didn't really want it, and it will do everybody the most good if we put it here on (source-forge, etc). Share and enjoy..."

Oh, man, I'm picturing Lionel Hutts

[The I Shing]

Wasn't there a scene in The Simpsons where Lionel Hutts doesn't have any evidence for his lawsuit and he asks the person he's suing if he can help?

Was it the one where he sued over Itchy & Scratchy?

He stammers out something like "Well, um, we don't have a copy of it... we were kind of hoping that you did."

Re:Oh, man, I'm picturing Lionel Hutts

[sharkey]

Judge: Mr. Hutz, do you have any REAL evidence?
Hutz: We have hearsay and conjectural, those are KINDS of evidence.

Re:Oh, man, I'm picturing Lionel Hutts

[nate1138]

Judge: Do you have any evidence?

Hutz (SCO Lawyer): We have plenty of hearsay and conjecture, those are KINDS of evidence.

And from the street...

[MSBob]

And as should be expected by now, SCOX stock rose on the news today.

SCO logic

[cnb]

You stole from me but I can't tell you what it was until I search your house.

- cnb

Increasingly hilarious

[bugnuts]

SCO: you infringed on our code, we're suing
IBM: prove it
SCO: no, you prove it!

wtf? How did they get this far? I rarely root for the 800 lb gorilla, but it appears the strategy for SCO is just to tie this up in litigation as long as possible.

There is a different issue here... this has nothing to do with copyright infringement anymore, it is political maneuvering of consumer views. But, I'm preaching to the choir at this point.

This case should stop now...

[Zebra_X]

They are taking IBM to court - so that they can get the most recent versions of AIX to compare to Linux. Huh? Don't you need evidence before you have a case? From the stuff on groklaw it sounds as if sco simply presumes that there is infringing code, but has no real proof. SCO should go to jail for wasting the american peoples legal system's time.

Solution

[Zork the Almighty]

Maybe IBM can give them a list of files which infringe ;)

IBM response

[pyros]

Lawyers arrive in court, head counsel for IBM opens briefcase, pulls out megaphone, points it at Boies, and says in Eric Cartman's voice "Would you like, to suck my balls, Mr. Boies?"

MotleyFool is writing off SCO

[MSBob]

Expect a significant selling pressure on the SCO stock after this publication [fool.com].

Well...

[LordK3nn3th]

Darl: That gosh-darn penguin STOLE the evidence out of our source code! That's why we don't have it, that damn hippie-communist pinko penguin does!

Techie: That's not how it works, s--

Darl: Don't question me! You have a law degree, right?

Techie: Uh, yes, I do... u--

Darl: Then from now on you're our goddamn lawyer, and MAKE SOME EVIDENCE.

Please Copy and Distribute prosecute-sco.html

[MichaelCrawford]

Please copy and distribute Let's Put SCO Behind Bars [goingware.com]. It has a Creative Commons license.

From the page:

While the lawsuits being defended by IBM [sco.com] and filed by Red Hat [redhat.com] are likely to put an end to The SCO Group's [sco.com] menace to the Free Software community, I don't think simply putting the company out of business is likely to prevent us from being threatened this way again by other companies who are enemies to our community. I feel we need to send a stronger message.

If we all work together, we can put the executives [sco.com] of the SCO Group in prison where they belong.

If you live in the U.S., please write a letter to your state Attorney General [naag.org]. If you live elsewhere, please write your national or provincial law enforcement authorities. Please ask that the SCO Group be prosecuted for criminal fraud and extortion.

It also suggests complaining to the securities and exchange commission, which you're entitled to do if you've lost investment money as a result of any wrongdoing that SCO might have committed.

Thank you for your attention.

Question for the lawers among us ...

[tmoertel]

Would it be considered terribly inappropriate, or even grounds for appeal, if the judge called Darl and Kevin McBride to the bench and then repeatedly, and with extreme prejudice, smote them with her gavel?

Just curious.

Re:Question for the lawers among us ...

[shystershep]

I believe that Federal Rule of Civil Procedure 37, which governs discovery disputes, only allows a single smite. Rule 11, on the other hand -- which deals with frivolous filings -- does allow smiting "repeatedly, and with extreme prejudice."

So I believe the answer to your question would be "please sir (or ma'am), may I have some more?"

Statements 14, 15 and 16

[grasshoppa]

"14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

"15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

"16. Our engineers have reached the conclusion that parts of Linux have almost certainly been copied or derived from AIX or Dynix/ptx. In those cases, confirmation of this opinion would require access to more current versions of AIX and Dynix/ptx.
Ok, I'm confused. Since when do two false's make a positive.

Ohh..they must be XORing the system. That makes perfect sense.

Okay so is it over now?

[erroneus]

If I recall, the judge said, "put up or shut up!" right?

So they failed and the excuse is pretty ridiculous. Their claim is that Linux's code is owned, in part, by SCO. To prove this, they only need to show their code in their source in their product and show where it is identical within Linux's code. How is it necessary that IBM show completely unrelated code from AIX?

The judge didn't care that it was over the holidays and was probably very aware of that fact. Using the judge's knowledge as an excuse is probably just insulting enough to make the judge rule against SCO on this matter.

So I guess we wait to hear the wrath of the judge now?

So they've never had specific proof !

[Performer Guy]

This is pretty amazing, since they've been claiming all along that Linux infringes and they have proof. When asked for proof they have now said in writing that they can't produce that proof without seeing code they don't have.

In other words they've never had specific proof.

So their whole case is apparently hinged upon their tenuous claim to ownership of IBM authored code which they claim they own, but have never seen. They hope they can claim ownership of that code on the basis of a very broad interpretation of derivitive works and that code IBM wrote into AIX was derived (by their incredible definition) from their copyright works (the missing link) and that they then moved this into Linux.

IANAL but you can't run around claiming someone infringes on your copyrights and then go on a fishing expedition for the evidence, you need something evidence to present to the court in the first place.

This bubble may burst much sooner than I had anticipated.

Talk About Inaccurate

[iamplasma]

Well, this has to be one of the most inaccurate Slashdot stories in a while. For those who do not read Groklaw, SCO _have_ complied for the most part with the court order to produce specifics of their case, they simply haven't completed a few pieces involving information from company directors. While certainly, it's a huge failure on SCO's part to allow this to happen, to claim this means they haven't produced any evidence at all is a flat out lie. After all, if they haven't, then what were those "more than 60 pages" they served on IBM recently (though readers may draw their own conclusions on how strong SCO's case may be if it's only 60 pages)?

So c'mon people, RTFA first before cheering "woohoo! SCO suck! We are win!".

Not exactly true

[Anonymous Coward]

Maybe in legal terms, but while SCO has technically complied to the order, it was legal for them to do so without producing much evidence. Which apparently they did. 60 pages surely doesn't cover the millions of lines of code they were talking about in the press. A confident litigator would not accompany his case with an excuse-note saying that they don't know what the hell's going on, but they have just a suspicion.

So, while they have complied in legal terms, they have weakened their case in a significant order of magnitude. Not only that, but they have also weakened their case for any of their prosprective targets in their scoSource shakedown fiasco.

Maybe inaccurate on a legal basis, but significant when looking at the big picture.

I read Groklaw as well by the way.

Fiduciary Duty

[red floyd]

Seems to me that RBC (and any other investors) have a decent lawsuit against SCO.

With a $3Billion (pinky to mouth) lawsuit at stake, the friggin' directors couldn't give up their holiday vacation to provide info that the Court specifically ordered them to? Now, IANAL and IANACPA, but that would seem to be a breach of fiduciary duty!

Obviously

[ceswiedler]

This makes it clear that SCO is not talking about old code. They aren't claiming that IBM put ancient SysV code into Linux. They're claiming that they own code that IBM wrote and they never saw (and don't have a copy of).

If they were saying that AT&T gave IBM the Unix source, and SCO inherited the Unix source, and IBM put the Unix source into Linux, then SCO would have a copy of the source of the infringement. If SCO doesn't have a copy, then that's a damn good sign that they never owned it.

Clearly their interpretation is that anything IBM ever wrote related to UNIX is covered by their new UNIX copyright.

Does George Lucas own the copyright to every Star Wars book ever published--say, the Timothy Zahn trilogy?

Re:Obviously

[rit]

> Does George Lucas own the copyright to every Star Wars book ever published--say, the Timothy Zahn trilogy?

Yes, actually, he does.

Improper initial statement

[Damn_Canuck]

Just a correction for the initial post: SCO has claimed that they have submitted much of the material to IBM, just not all (this is verified by the statements of Mr Tibbitts). The information they do not yet have are for those managers who were on vacation and couldn't get the papers to their legal dep't before they went away for, what, a month??? But definitely keep an eye on the Groklaw site. They get all the information as soon as it is available and is a great site to find all the SCO info. (For those who don't get enough at /.)

what Groklaw?

[Xtifr]

But definitely keep an eye on the Groklaw site.

I was trying to keep an eye on Groklaw when it suddenly stopped responding, so I figured it was time to head over to slashdot and see what was new. Sure enough, I found this article pointing to the smoking ruins of what used to be an informative site. :)

I wonder if it's time for OSDL to offer their hosting services to Pamela?

New SCO deal

[Anonymous Coward]

In related news, SCO hires world reknowned magician David Copperfield. Sources close to the deal state that the relation is to ensure that the proof behind all the lawsuits magically appears. Further reports link ties with the leprechaun from Lucky Charms to ensure the end result is magically delicious.

The thing that's most amazing to me..

[schon]

Now, this is pretty surprising - you're compelled to produce evidence, and you refuse... that's pretty much just asking for contept charges..

but put it in context, and it's absolutely mind-bogglingly stupid.

SCO and IBM have been going back and forth for months on the issue of discovery. SCO keeps saying they need evidence from IBM before they can produce their own proof, and IBM says that they need to know what they're being accused of.

The judge reads all this crap from SCO (about how they can't prove their case until IBM gives them evidence) and decides that IBM is in the right - but she decides to give SCO the benefit of the doubt.. she tells them "I've read everything you've given me, and you're wrong. Unless you can convince me otherwise, I'm going to force you to comply with IBM's discovery.

So SCO goes on about how they can't prove their case until IBM gives them evidence - and the judge says "You have failed to convince me. Either you have evidence they did something wrong or you don't, it's shit-or-get-off-the-pot time. You have 30 days to produce evidence to back up your claims. If that's not enough time, tell me now, and I'll extend it."

SCO says "No, that's enough time."

So 30 days pass, and SCO's answer is "We can't do it because IBM won't give us the evidence."

I mean - come on - refusing to comply to a compel order is stupid, but repeating the exact same excuse the judge has already rejected as your reason for refusing to comply is so completely unbelievable it's unreal.

And then (to salt the wound) they claim they didn't have enough time - after explicitly being asked by the judge if 30 days was enough.

Is SCO trying to lose on purpose?

Information content analysis

[El]

SCO not producing evidence isn't news. If SCO actually produced some valid evidence, now THAT would be news! In information theory, the information content of an event is inversely proportional to the probability of that event occuring. Since the probability of SCO not producing evidence is 1 for all practical purposes, the message "SCO has not produced evidence" has an information content of zero.

Seems thier case is going to sink or swim

[fw3]

*Entirely* on the 'derivative works' theory.

I (we) uniformly disagree on the theory that everything IBM added to AIX must not also be added to Linux. Because substantive technologies are not derivative works, specifically:

1. IBM pretty clearly took a very safe path with JFS, it came from the os/2 version (and I bet they read GPL and forsaw these issues before porting to Linux)
2. IBM almost certainly did not develop only in the context of AIX/systemV license (i.e. they use jfs, NUMA etc on other platforms),

However, to devil's-advocate this:

Device, filesystem drivers used with Linux may be considered derivative works, even if not shipped with the Linux distribution, and therefor subject to GPL. *Linus* has said exactly this, and while I personally doubt that SCO is going to prevail (see contract details between AT&T/Novell/SCO/IBM which decidedly establish that this type of additions are not restricted to confidentiality or considered deriviative works.

Which means basically that if the FSF had licensed a GPL Unix to IBM, they would right now be taking the reciprocal (but logically identical) position as SCO is with respect to license requirements.

I continue to think SCO loses (and continues to look like halfassed morons), with this tack but remember the Linux community does apply similar logic around IP.

Dear Darl!

[Lispy]

Now not everybody just hates you.
Finally everyone also laughs at you.
I hope the money is worth all that.

A Theory

[Titusdot Groan]

I haven't seen this theory before but I don't read ever article posted on this topic :-)

I think what happened is this:

1. Some bright intern in SCO legal came across the IBM contract and said "Ah ha!, I bet IBM forgot about this clause."
2. Some old timer in Legal says, "Hey, we have a bunch of code in escrow from the MERCED, I bet those IBM dummies put some of it into Linux"
3. Some technical manager is asked to check to see if there is any code in both MERCED and in Linux. Answers "Yes" because he's a climber or is too stupid to know what is or isn't actionable.
4. SCO launches it's lawsuit.
5. SCO's real lawyers get the evidence.
6. Boies, and by deduction everybody else, finds out IBM never forgets when it comes to IP. Never. There is nothing actionable in MERCED that made it into Linux or there isn't enough to make a real lawsuit out of it.
7. SCO can't find evidence in the source they have so they start requesting source that may have actionable items.
8. Boies finds out that IBM's lawyers are on to this when they demand real evidence before turning over anything.
9. The tap dancing begins ...

Now things are going to get nasty for SCO. What I'm surprised about is how people keep getting surprised by IBM's "Ninja Lawyers" and how tight their IP controls are. It's a long running industry gag.

Santa Claus, the Easter Bunny, and the SCO...

[Jahat]

evidence walk into a bar....

That's a lot of holidays!

[payndz]

So why is it that senior executives, the people who are supposedly critical to the success of a company, can take massive amounts of holiday over Xmas and the New Year with no ill effects on the running of the business, whereas I had to be back in on January 2nd? Does that mean my presence in the office is more crucial to the company than theirs? And if so, how come I'm not paid enough to buy a Ferrari, as one of my company's directors recently did?

Article is GROSSLY misleading

[solman]

SCO has claimed (under penalty of perjury) that they DID produce answers to ALL of IBMs interogatories (questions) before the deadline.

This includes an answer to IBM's request that they identify (with specificity) all rights that they claim to the Linux operating system.

We haven't seen this answer (yet). IBM will presumably claim that SCO has NOT answered its questions on January 23rd. But the title of the article is false. SCO _HAS_ produced evidence. The only question is whether or not that evidence is meaningful.

Versions

[Effugas]

Actually, a couple people had some interesting observations on Groklaw about the request for further evidence.

For one, demanding newer versions of Dynix past 4.6.1 is apparently amusing, considering no newer versions exist. I suppose IBM could write one, but that's pushing discovery a bit far.

Secondly, failing to find misappropriated code between Linux and a version of AIX SCO has rights to is significant -- it means anything AIX-like that IBM has in Linux has to post-date the granting of code from SCO (or SCO's predecessors). Since the contract explicitly gives property rights to IBM for all of their own modifications, IBM has neatly caused SCO to show that Linux's similarities to AIX, if any, did not occur within the "protected window" that SCO purchased ownership of.

Elegant.

--Dan

I KNOW how SCO can get their proof!!!

[cdn-programmer]

What SCO needs to do is call up the IBM sales team and request a new copy of AIX and the source code for same. Clearly SCO should simply ask to become a licencee of AIX and abide by IBM's terms.

HAHAHAHA

What a JOKE.

It gets better if you actually READ the documentation that is posted on GROKLAW - like section 13 for instance.

The premise of the SCO claim is becoming painfully apparent. The claim is that the moment IBM put ANY new code into AIX that this new code became a derivative copy of AIX and thus SCO has the right to control it.

I shall use an analogy here - an opera.

======================

I write an opera and you listen to it. You also are a talented song writer just as I am - perhaps more talented and you can easily write your own operas. But - this is not what happens. For whatever reasons you decide to IMPROVE my opera and then release it.

So you add in some new songs of yours to my opera and your version becomes more popular than mine. Mine in fact dies. So - do I have claims apon your version of the opera? Do I have claims against your songs? Do I have claims against say a single line you modified in one of my songs? How about individual words you might have changed? What if you changed the spelling of some of these words? Should I have claims against the sequence of letters you used to spell a word?

So you see - since YOU had the power to NOT use or contribute to my opera, I do get to make all sorts of outragous claims and I do get to control you.

On the other hand, suppose you are NOT a talented writer. Suppose you are just talented at arrangments. Suppose your friend is a talented writer and you find he has all these great songs that you can import into my opera. Clearly, your friend will not lose the rights to his copyrights by your actions. In fact, he may and I may grant you the right to make a derived opera so it is clear in this case that nobody has stepped on anyone's toes and there can be no claims by me on you.

The confusion stems from the fact that there is no boundry when you make the modifications. I get to claim you are making a derivative work - which you may have the right to do. And the question then becomes whether I get to control your work because some of it happened to be used in something I wrote before you did.

In staying with the analogy of the opera, suppose we get to the point where you feel your songs have a life of their own and you chop out 100% of my original material. Basically this is what IBM did.

Well, when at least _SOME_ of my material was in the derived work I may have had the right to control some aspects of the derivative work. When NONE of my material exists any longer we are left with the question of whether what you created is still a derived work which I get to control.

===============
So is it?

Well - In a way it is. And in a way it isn't. The way I read copyright law, I may in fact still get to control your work even though it is exclusively your work.... simply because during its history it was co mingled with mine. The premise for this claim is that your work would NEVER have existed were it not for my work and the structure it imparted.

This is a very important premise because when we look at software projects, the vast majority of new clean implementations suffer very bad teething problems and often lose their market share. Examples include Wordperfect, Mozilla and many others.

However, the practice in our industry is that each separate function bears its own copyright. As to code inserted in-line in functions - well - that is not as well sorted out. It becomes pretty arbitrary and the vast majority of us simply chose to not waste our time fighting about it.

===============
New analogy:

Lets look at a house. I build a house on my lot and you buy the lot next door and live in my house. You pay rent to me and get a contract from me that you can make tenant improvments. You ar

WTF?

[C_Kode]

14. I have been informed by SCO's engineers and consultants that since the only version of AIX source code that was available for comparison purposes is several years old, and predates most of IBM's contributions to Linux, it was not possible to directly compare IBM's contributions to Linux with the most likely source of those contributions, namely the missing versions of AIX (including the most recent versions).

15. Further, we have only one CD of Dynix/ptx source code that was produced by IBM, and this CD only contains a limited history of Dynix/ptx releases. It was therefore not possible to directly compare IBM's contributions to Linux with another likely source of those contributions, namely the missing versions of Dynix/ptx.

They said they HAVE the proof and you needed to sign an NDA to see it. Yet no all the sudden they don't have all the information required to FIND the evidence they need. So, all these claims are just speculation now? Well, if I can sue for 3 billion off speculation, someones poor multi-billion dollar company is in alot of trouble. Hmmm, I wonder how the judge will see this. What they claim to have had, and what they have are two different things. They have nothing and just admited to it.

SCO wants AIX and Dynix/ptx source code first

[Skapare]

SCO claims that their contract with IBM gives SCO all rights to any improvements to these Unix licensed products. In a way, that's kind of like GPL, except for corporate greed, although it seems that it did not provide for any means for SCO to actually get that source code they claim to own. SCO believes that IBM did develop improvements for AIX and/or Dynix/ptx (I presume the original Sequent license for Dynix had a similar provision), and that IBM also contributed those improvements to Linux. SCO thus believes that code they own is in Linux, but cannot positively identify it because they don't have the AIX and Dynix/ptx code to cross check with. Apparently SCO would assert that any code found in AIX or Dynix/ptx is either code originally licensed, or code that was added later by IBM and still covered under the license agreement.

The clause that gives SCO ownership of improvements to AIX and Dynix/ptx is itself suspect. If there is no provision for transferring that code to SCO, then how is such a clause to have any meaning. And how can it be determined if any improvements were developed by IBM or simply acquired by IBM under other licensing (including GPL) and integrated? If I had sold a piece of code to IBM that would improve AIX and/or Dynix/ptx, a contract between SCO and IBM cannot take ownership of the rights to that code away from me (and I have no contract with SCO). It would not be any different if IBM did this with GPL code. Nor would it make any difference if IBM did this with BSD code. And it wouldn't even make any difference with public domain code (since the public by definition has all rights to use it, so any ownership is moot in that case).

Suppose there is some common code in both Linux and AIX. SCO might well assert ownership of that code. But what if the code was originally in Linux and subsequently put in AIX (if it is GPL that might be a problem, but suppose it is a public domain, or BSD licensed piece of code). What if the code was in another free licensed OS like FreeBSD, and subsequently put in both Linux and AIX (in either order of time). Or it could be public domain code. SCO won't have any ownership rights to that code (although they could likely have usage right like anyone else).

SCO will have to do more than merely show that some code is in both Linux and AIX. They will have to prove that IBM developed the code and put it in AIX first, before putting it in Linux. If IBM put the code in Linux first, even under a GPL license, as original owner they also have the right to put it in another system under another license ... and more importantly, cannot subsequently withdraw the rights already granted under the first contribution. So if they put code in Linux under GPL, then put it in AIX under SCO's assertion of ownership rights through the Unix license (which is in dispute), IBM would not be obligated to make AIX open under GPL (since it is not putting it as GPL'd code in AIX). And since the rights under GPL are already released, even if SCO prevails to own the code because IBM developed it, it has no means to withdraw the rights already released under GPL. What SCO would have to prove is that the development was done at IBM, under IBM ownership, for AIX and/or Dynix/ptx, now subject to the disputed license, then donated to Linux under GPL. Just looking at the AIX and Dynix/ptx code isn't going to show that.

Suppose the worst happens and SCO prevails and the courts believe that certain (at that point identified in court) pieces of code are owned by SCO and their unlicensed distribution and use infringes on SCO's intellectual property. Linux can deal with this very effectively by simply releasing a new version (wanna place bets on how quickly that will happen) without any of that code from IBM. SCO's current case is against IBM, not against Linux. So even if SCO were to prevail, their recovery under that case is only against IBM. There will be two areas of infringement in Linux to consider: the past and the future.